The Federal Lawyer: November/December 2020

Volume 67, Issue 6

Law in the Time of Corona page 48

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Annual Meeting & Convention September 23–25, 2021 HILTON MIAMI

DOWNTOWN – MIAMI, FL

Volume 67, Issue 6

EDITORIAL BOARD

Editor in Chief Andrew Doyle doyle_andrew@msn.com Associate Editor James W. Satola jsatola@roadrunner.com

November/December: Federal Practice

Managing Editor Lynne G. Agoston (240) 404-6488 social@fedbar.org Book Review Editors Heaven C. Chee Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Joanna Fox Sheila Hollis Christopher Lucca Bruce McKenna Anne Perry Dalmacio Posadas Elizabeth Turnbull Susan Yorke Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Kristine Adams-Urbanati Sarika J. Angulo Ellen Denum Sara Gold Niles Illich Jeffrie Boysen Lewis Jon Jay Lieberman Glenda McGraw Regnart Amanda Thom Jeremy Stone Weber 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 2020 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/ tflwritersguidelines for writers guidelines.

42

64 A Land Mine in Rule 12(c)

Defending the Innocent Client Against Federal Regulatory Agency Lawsuits That Impose Receiverships

Motions for Judgment on the Pleadings

48 Law in the Time of Corona

Also in This Issue

By William M. Janssen

By Vincent A. Citro

By Ira Cohen, Esq., B.A., J.D., LL.M.

54 Has Comcast Altered the

Standards for Pleading Civil Rights Claims?

By Stephen M. Dane

58 A Lasting Legacy:

14 Remembering Justice Ruth Bader Ginsburg

By Major General William K. Suter, JAGC, USA (Ret.) Clerk of the U.S. Supreme Court (Ret.)

78 Meet Your Board

The Impacts of Six Great Jurists on the Bench and Bar

By Leo A. Latella

November/December 2020 • THE FEDERAL LAWYER • 1

Federal Bar Association COLUMNS 3 President’s Message

The Constitution Unites Us: Popular Sovereignty and Why We Have Government

By W. West Allen

5 Washington Watch

The FBA Calls for Beefing Up Judicial Security

By Bruce Moyer

6 At Sidebar

The Seldom Told Tale of the United States of America’s First Federal Court

By Ira Cohen, Esq., B.A., J.D., LL.M.

30 Thought Sponsor

Premier Legal Services at Speed: A Snapshot of the U.S. Army Judge Advocate General’s Corps’ Response to the COVID-19 Pandemic

32 Thought Sponsor

Protecting Privilege in the Age of Self-Disclosures

By Alexander Thomas, Kate Seikaly, and Rizwan Qureshi

PROFILES 36 Hon. Robert Joseph Lesnick

11 National Spotlight

Chief Administrative Law Judge (Ret.), U.S. Federal Mine Safety and Health Review Commission

By Judge Gabriel A. Fuentes

39 Hon. Robert L. Pitman

Federal Detention Amid the COVID-19 Pandemic: A Follow-Up

15 Diversity & Inclusion

Why Hiring a Law Clerk Should Be Like Hiring an NFL Head Coach

By Matthew C. Enriquez

17 Immigration Law

FLRA’s Regional Director Dismisses DOJ’s Petition to Decertify the Immigration Judge’s Union

By Judge Dorothy Harbeck and Judge Amiena Khan

20 In-House Insight

OSHA in the Time of COVID-19: A Call for Enforceable Standards for the Sake of Employees and Employers

By Michael J. Cahalane, Esq.; Kyle E. Bjornlund, Esq.; and Xavier Q. Lawrence, Esq.

24 Commentary

Words Matter, Perhaps Especially Ours as Lawyers

By Rupa G. Singh

26 Opinion

By Hon. Alisa Tapia

District Judge for the Western District of Texas–Austin Division

By David R. Schleicher

BOOK REVIEWS

70 In Hoffa’s Shadow: A Stepfather, A Disappearance in Detroit, and My Search for the Truth

Reviewed by Thomas A. Doyle

71 Ex Parte Milligan Reconsidered: Race and Civil Liberties From the Lincoln Administration to the War on Terror Reviewed by Henry Cohen

FBA MEMBER NEWS

78 Meet Your Board 84 Chapter Exchange 86 Member Spotlight

It Is Time to Advise and Encourage Consent to Magistrate Judge Review and Disposition in All Social Security Cases

By Pamela D. Crawford

2 • THE FEDERAL LAWYER • November/December 2020

1220 N. Fillmore St., Ste. 444 Arlington, VA 22201 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President • W. West Allen wwa@h2law.com President-Elect • Anh Le Kremer anh.kremer@cdirad.com Treasurer • Matthew C. Moschella mcmoschella@sherin.com Ernest T. Bartol etbartol@bartollaw.com Jeanette M. Bazis jbazis@greeneespel.com Joey Bowers jbowersfba@gmail.com Kevin A. Maxim kmaxim@maximlawfirm.com Glen R. McMurry glen.mcmurry@dinsmore.com Hon. Karoline Mehalchick karoline_mehalchick@pamd.uscourts.gov Adine S. Momoh adine.momoh@stinson.com John R. Thomas jt@fed-lit.com Jessica R. Toplin jtoplinfba@gmail.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 Christian K. Adams cadams@adamskrekllp.com Hon. Barry W. Ashe barry_ashe@laed.uscourts.gov Laura A. Conover laura@conoverlawpllc.com Anna W. Howard anna.howard@uga.edu Nathan A. Olin nate@oliplaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Operations Manager Holly Delidle hdelidle@fedbar.org Managing Editor Lynne G. Agoston social@fedbar.org Marketing Director Jennifer Olivares social@fedbar.org Administrative Assistant Valerie Pines vpines@fedbar.org Conference Manager Caitlin Rider crider@fedbar.org Sr. Director of Professional Development Melissa Schettler mschettler@fedbar.org Membership Specialist Miles Woolever mwoolever@fedbar.org Program Coordinator Ariel White awhite@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Oreste R. Ramos 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 Kevin G. Desharnais Melissa N. Schoenbein Eighth Circuit David A. Goodwin Adam Hansen Ninth Circuit Laura A. Conover Darrel J. Gardner Tenth Circuit Kristen R. Angelos Hon. Suzanne Mitchell 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 To Be Appointed Admiralty Law Scott Bluestein Alternative Dispute Resolution Bryan J. Branon Antitrust and Trade Regulations Vacant Banking Law Christopher Bellini Bankruptcy Law Christopher Sullivan 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 Adam Hill Federal Litigation Nicole Deese Newlon Government Contracts Vacant Health Law Robert Rappel Immigration Law Mark Shmueli Indian Law Ann E. Tweedy Intellectual Property Law Ira Cohen International Law Beth Persky Judiciary Hon. Michael J. Newman Labor and Employment Law TJ McGrath Law Student Glen R. McMurry LGBT Law Brandon King Qui Tam R. Scott Oswald Securities Law Liam O’Brien Senior Lawyers Steve Miller Social Security Law To Be Appointed State and Local Government Relations Andrew S. Ballentine Taxation Robert Russell Transportation and Transportation Security Law Steve Osit Veterans and Military Law Maura Clancy Younger Lawyers Anna W. Howard

President’s Message

The Constitution Unites Us: Popular Sovereignty and Why We Have Government

By W. West Allen

W. West Allen is an intellectual property litigator and counselor in Las Vegas who represents a wide variety of international clients in federal courts. He served as chair of the FBA’s Government Relations Committee for seven years and has served as a member of the FBA’s board of directors for much of the past decade.

In 2016, Allen received the FBA’s President’s Award for longstanding service to the FBA and as chair of its Government Relations Committee.

In my Presidential Installation remarks offered on Constitution Day, September 17, 2020, I reminded all judges and lawyers that we are the Guardians of the Constitution and emphasized five foundational principles of the U.S. Constitution: popular sovereignty, federalism, separation of powers, the Bill of Rights, and the rule of law.1 In the months ahead, I would like to further discuss these foundational principles.

We begin with popular sovereignty.

The American experiment is unlike any in the world. “In Europe, charters of liberty have been granted by power,” James Madison explained. “America has set the example … of charters of power granted by liberty[;] … [government] derived not from the usurped power of kings, but from the legitimate authority of the people[.]”2 Said another way, the “Father of our Constitution,” in expounding upon the significance of his work and advocating for the Constitution and its new form of government, provided us with this wisdom: “[T]he people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived[.]”3 The justification for such a bold political arrangement arises directly from the truths America declared to the world in 1776. In that year, the Founders of America proclaimed liberty throughout all the land with these “self-evident” verities: (1) all are created equal; (2) all are endowed by their Creator with certain unalienable rights; (3) among these rights are Life, Liberty, and the Pursuit of Happiness; (4) to secure these rights, governments are instituted among people, deriving their just power from the consent of the governed; and (5) whenever any form of government becomes destructive to these ends, it is the right of the people to alter or abolish it.

The Declaration of Independence and its proclamation of these truths concerning the essential state of all humanity set firmly in place the first foundational cornerstone of the Constitution: popular sovereignty. The people are the only true and lawful source of governmental power. Rights and freedoms of individual citizens do not exist because of government. Government exists because individual citizens are free to protect their freedoms and rights as they choose. Moreover, the freedom of every individual exists apart from and is superior to any form of political government. This “natural” freedom predates any government on earth.

All rights appertaining to freedom are therefore equal to every man and woman. No people, no nation had ever spoken as this before: We are free; thus, we are sovereign.

This fundamental principle of self-government is the lodestar of all constitutional jurisprudence. It illuminates every aspect of it—our Constitution’s creation, interpretation, and implementation. It was just as true in 1787 as it is today and will be tomorrow. For America, government is charted by limited, enumerated powers to be exercised only as authorized by the people according to their written law, which is the U.S. Constitution. Indeed, the very purpose of the U.S. Constitution, or of any government, is to protect and preserve the people’s unalienable rights and their eternal freedom.

To this end, the American people resolved to form a new constitutional government, unlike any other, to advance the cause of freedom and protect individual, unalienable rights. They created a democratic republic—one established by the consent of the governed, and fixed in writing to guarantee liberty for future generations. This new written constitutionalism, properly understood and practiced, would become the greatest political creation in the history of the world for the cause of freedom.

November/December 2020 • THE FEDERAL LAWYER • 3

It is with this elevated understanding of why people institute government that we also begin to see how the principle of popular sovereignty provides the proper metes and bounds of good government.

Because America’s government is of the people, by the people and for the people, it must operate within the boundaries expressly enjoined from the people. Therefore, before any proposed government action is taken, a proper inquiry concordant with the foundational principle of popular sovereignty would be this: “Is this what We the People told government to do?”

And to answer that question, we need look no further than the Preamble of the U.S. Constitution and the six reasons We the People instituted and empowered our government in the first place. America’s self-government is ordained and established for these express purposes: 1. To form a more perfect Union, 2. To establish Justice, 3. To insure domestic Tranquility, 4. To provide for the common defense, 5. To promote the general Welfare, and 6. To secure the Blessings of Liberty to ourselves and our Posterity.4 If government action is not doing these things, it’s likely acting outside the people’s granted authority. Similarly, if we as citizens, civic leaders, politicians, or corporate institutions are engaging in action that compromises these fundamental six purposes, then we, too, are acting contrary to our ultimate best interest, and, in the end, endanger the very political system that sustains us. Madison warned us against this as well: “liberty may be endangered by the abuses of liberty as well as by the abuses of power[.]”5 Regarding the just scope of government, Alexander Hamilton explained that “[t]he propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.”6 The opening words of the U.S. Constitution, in a remarkably clear and guiding way, do precisely this. Quite simply, the Preamble of the U.S. Constitution is the document’s great enacting clause that both embodies and crystalizes the principle of popular sovereignty. It expounds upon the nature, extent, and basis for which people empower government at all. It also clarifies the limit of authority that must restrain those entrusted to serve within government.7 By properly understanding the first foundational constitutional principle of popular sovereignty, we can better implement and interpret the Constitution itself. We can better understand how to administer our government and govern ourselves. In time, we begin to appreciate the document’s magnitude and depth to advance the rights and protection of all people. The U.S. Constitution elucidates the proper political relationship between governor and the governed, the protectorate and the people, the Caesar and the Citizen. It is the single greatest achievement in the science of government. And yet, it is still more.

Built upon the sure foundation of popular sovereignty, the U.S. Constitution emanates hope to a captive world. Like the declaration of eternal truths penned by Thomas Jefferson from a portable writing desk of his own design, the constitutional work composed by our American founders from the Pennsylvania State House in 1787 proclaims the way of freedom to all the world. The Constitution’s foundational principles, properly understood, unceasingly teach us.

4 • THE FEDERAL LAWYER • November/December 2020

Most remarkably, they have the ability to unify our nation and its people. I would invite everyone to give that insight further reflection.

The U.S. Constitution and its enduring principles of truth, especially that of popular sovereignty, bind disparate people together as one national family. This is perhaps one of the least understood, grandest achievements of the U.S. Constitution: It at once liberates and unites.

America indeed has raised a standard to the world to which the wise and honest can repair. We have established a charter of power granted by liberty. Our Constitution confirms that just government is not derived from the usurped power of kings, but from the legitimate authority of the people. Our written law created in sovereignty both governs and unites us. In so many ways, the U.S. Constitution is a political marvelous work and a wonder.

May we remember that we are one nation, one people, united by the cause of freedom. Our Constitution is written to preserve freedom for us, our children, and for all people who understand its principles. Loyalty to law instituted under principles of popular sovereignty creates unity in diversity. By and through the people’s charter, our Constitution, we are sovereign citizens linked together for a greater good, and we have strength. E Pluribus, Unum. Out of many, one. 

Endnotes While many foundational principles are taught by the U.S. Constitution—including those I refer to as “unspoken” constitutional principles, such as hope, faith, knowledge, fortitude, respect, resolution, patience, humility, diligence, order, justice, and gratitude—I’ve chosen to examine these critical five.

2 James Madison Charters, Nat'l Gazette, Jan. 18, 1792.

3 The Federalist No. 49 ( James Madison). Benjamin Franklin similarly expressed that in free government, the rulers are the servants, and the people their superiors and sovereigns. This principle is expressly set forth in the U.S. Constitution’s Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” See also, McCulloch v.

Maryland, 17 U.S. 316 (1819) (reaffirming that state governments did not form the United States, the People did: “The government proceeds directly from the people; is ‘ordained and established’ in the name of the people.”)

4 U.S. Const. pmbl.

5 The Federalist No. 63 ( James Madison).

6 The Federalist No. 33 (Alexander Hamilton).

7 The Preamble of the Constitution, along with its leitmotif of popular sovereignty, are worthy of independent study. The intentional placement and content of the Preamble within the U.S. Constitution, like many of the most significant writings in history, establish order and precision. First, the Preamble declares who is acting: the sovereign people. Next, it defines the express purposes why the people are acting by their authority. And finally, it states what the people are doing to achieve these specific purposes; namely, enacting a new government through a written constitution. The Preamble establishes the people’s purpose in enacting the American government, its limitations, and who rightly wields its power.

1

Washington Watch

The FBA Calls for Beefing Up Judicial Security

By Bruce Moyer

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

The tragic incident involving the murder of the son of U.S. District Judge Esther Salas and the critical wounding of her husband at the judge’s home in North Brunswick, N.J., on July 19, 2020, has stirred efforts within the judiciary and on Capitol Hill to improve and expand security at judges’ homes and at federal courthouses. The FBA has played an active role in supporting proposals to improve judicial security.

The Salas tragedy prompted the Judicial Conference of the United States to assess current security measures and then request additional judicial security funding and statutory changes to prevent the release of judges’ personally identifiable information (PII).

Specifically, the Judicial Conference asked congressional appropriators on Sept. 4, 2020, to approve: • A one-time appropriation of $7.2 million for the U.S. Marshals Service to install modern home intrusion security systems in judges’ homes and $2 million annually to keep the systems current.

The existing government-funded alarm systems are badly outdated, lacking any video capabilities to identify who is on a judge’s property.

• Increased funding for the U.S. Marshals Service to hire 1,000 additional deputy U.S. marshals to expand the protection provided to judges and federal courthouses.

• A one-time direct appropriation to the Federal Protective Service of $267 million to replace and upgrade exterior perimeter security cameras at 650 U.S. courthouses and federal buildings that house judicial activities.

FBA Support for Judicial Security Funding On Oct. 14, 2020, FBA President W. West Allen urged Congress to promptly approve the Judicial Conference’s funding requests, noting: “The personal tragedy that has befallen Judge Salas and her family unfortunately is not confined to only them. The murders of United States District Judge John Wood (1979), United States District Judge Richard Daronco (1988), United States Circuit Judge Robert Vance (1989), United States District Judge John Roll (2011), and family

members of United States District Judge Joan Lefkow (2005), all represented targeted attacks. It is imperative that Congress respond with the necessary security resources to prevent another tragedy involving judges and their families.”

The Judicial Conference also asked Congress to approve changes in federal law that would better prevent the unauthorized release of judges’ PII on the internet, including restrictions on posting or sharing judges’ personal information by private or public entities.

FBA Support for Judicial PII Safeguard Legislation In response, a bipartisan group of Senate and House lawmakers introduced “The Daniel Anderl Judicial Security and Privacy Act of 2020” (S. 4711 and H.R. 8591) to protect against the internet disclosure of judges’ PII and provide incentives for states to take similar action. The legislation also would prohibit commercial data collectors from selling or purchasing the PII of federal judges and permit judges to sue and seek injunctive relief against violators of the law. In October 20 correspondence to Congress, FBA President Allen expressed the FBA’s support for the House and Senate bills and urged Congress to act promptly.

How quickly Congress acts is unclear, especially given the shortness of the lame duck session and post-election priorities. Congress could provide additional funding within the final version of the FY 2021 budget later this year or early next year. On the legislative front, congressional action to tighten the release of PII could stretch into 2021. Additional action by state and local authorities also could help because of their role in the internet publication of property, tax, election, and other public records containing PII about judges. 

November/December 2020 • THE FEDERAL LAWYER • 5

At Sidebar

The Seldom Told Tale of the United States of America’s First Federal Court

By Ira Cohen, Esq., B.A., J.D., LL.M.

Ira Cohen, Esq., B.A., J.D., LL.M., is a partner of Henkel & Cohen, P.A., of Miami. He is a member of the Florida and New York Bars and has been practicing intellectual property law for almost 40 years.

Cohen served as judicial law clerk to Hon. Harold J. Raby, U.S. magistrate judge for the Southern District of New York (1982-1985). He is a proud member of the FBA and a Life Fellow of the Foundation of the FBA. Cohen also is deputy chair and a board member of the Intellectual Property Law Section of the FBA.

Federal Court History Final Exam (sample question) Question #100 What was the first federal court in the United States of America? a. U.S. Supreme Court b. U.S. District Court, Southern District of New York c. U .S. District Court, District of Massachusetts d. U.S. District Court, Eastern District of Pennsylvania e. None of the above Answer Key: The correct answer is “e. None of the above” Explanatory Note: As a matter of objective fact, the first federal court in the United States of America1 was the Court of Appeals in Cases of Capture, which was established in 1780.2 By way of comparison, the U.S. Supreme Court and the subordinate federal courts were created, almost a decade after the founding of this appellate court, by the Judiciary Act of 1789.3

Introduction History is truly the witness of times past, the light of truth, the life of memory, the teacher of life, the messenger of antiquity; whose voice, but the orator’s, can entrust her to immortality?4 Marcus Tullius Cicero (106 B.C.–43 B.C.), the great Roman philosopher, statesman, orator, advocate, lawyer, and political theorist, understood the function and importance of history. In our own time, our jurisprudential philosophy, and the institutions where we dispense justice, are framed by the legislators, judges, and legal landmark events that have preceded us.

Traditions and technical jargon (including law Latin) all have their proper place in our old and venerable profession. Paramount above all, however, ought to be a respect for, and adherence to, historical truth. As Cicero explained: “To be ignorant of what occurred before you were born is to remain always a child. For what is the worth of human life, unless it is woven into the life of our ancestors by the records of history?”

6 • THE FEDERAL LAWYER • November/December 2020

Prize Courts Prize courts were a commonplace judicial institution in many war-waging nations during the 17th through 19th centuries. Cases arising under the jurisdiction of such courts would emerge during times of naval military action both in the Americas and in Europe.

Prize court jurisdiction in England and Wales is exercised by the Admiralty Court. That specialized court is a part of the Queen’s Bench Division of the High Court of Justice; in turn, appeals are heard by the Judicial Committee of the Privy Council.5 In France, it is the Prize Council (Conseil des Prises) that possesses jurisdiction to determine the legal issue relating to a prize case. Thus, the council’s jurisdiction has been relegated to times of war.

Appellate jurisdiction in cases of this type is wielded by the president of the French Republic, who, in such matters, acts as a judge.

To better comprehend the instant subject matter, a short primer as to the peculiar legal jargon of this area of law should prove constructive. Set forth below is a list of discrete terms that generally are associated with American prize court practice.

Admiralty Court: A court exercising jurisdiction over all maritime contracts, torts, injuries, or offenses.

Federal district courts have jurisdiction over admiralty and maritime matters.6 Articles of Confederation: The name of the instrument embodying the compact made between the 13 original states of the Union, operative from March 1, 1781, to March 4, 1789, before the adoption of the present Constitution.7 Capture: An act of catching or controlling by force, threats, or strategy. In international law, the taking or wresting of property from one of two belligerents by the other. Also, a taking of property by a belligerent from an offending neutral. Capture, in technical language, is a taking by military power; a seizure is a taking by civil authority.8 [Court of ] Last Resort: A court from which there is no further appeal is called the “court of last resort.9 Letter of marque and reprisal: An authorization formerly granted in time of war by a government to

the owner of a private vessel to capture enemy vessels and goods on the high seas. The signatory powers to the Declaration of Paris in 1856 agreed to stop issuing such authorizations.10 Libel: Pleadings. Formerly, the initiatory pleading in an admiralty action, corresponding to the declaration, bill, or complaint. Since 1966, the Federal Rules of Civil Procedure and Supplemental Admiralty Rules have governed admiralty actions and as such, admiralty actions are now commenced by complaint.11 Libelant: Formerly, the complainant or party who files a libel in an ecclesiastical or admiralty case, corresponding to the plaintiff in actions at law.12 The party corresponding to the defendant in an action at law was called a “libelee.”

Marque (Law of Marque): A sort of law of reprisal, which entitles him who has received any wrong from another and cannot get ordinary justice to take the shipping or goods of the wrongdoer, where he can find them within his own bounds or precincts, in satisfaction of the wrong.13 Pirate: A privateersman who accepted a letter of marque and reprisal from both belligerents of a conflict was regarded as a pirate.

Privateer: A vessel owned, equipped, and armed by one or more private individuals, and duly commissioned by a belligerent power to go on cruises and make war upon the enemy, usually by preying on his commerce.14 Prize: A vessel or cargo, belonging to one of two belligerents, apprehended or forcibly captured at sea by a war-vessel or privateer of the other belligerent and claimed as enemy’s property, and therefore liable to appropriation and condemnation under the laws of war.15 Prize Courts: Courts having jurisdiction to adjudicate upon captures made at sea in time of war, and to condemn the captured property as prize if lawfully subject to that sentence.16 (In the United States, federal district courts now have jurisdiction in cases of prize.)17 Sentence: The judgment issued by an admiralty court or prize court.

The Federal Court of Appeals in Cases of Capture During the prosecution of the American Revolution (1775–1783), the United States issued letters of marque and reprisal authorizing private vessels, known as privateers, to capture enemy ships and cargo as prizes. During the war, state admiralty courts presided over and adjudicated prize cases.

The United States, like many other countries, issued commissions to privateers to capture their adversaries’ merchant vessels after hostilities had broken out. Then, the captured vessels were “brought” before the various admiralty courts, which, in turn, considered and decided legal issues such as the capture’s legitimacy and whether the vessel was to be condemned and/or the ship and its cargo to be sold off, as well as the question of the distribution of the prize funds to the privateer as and for compensation.

Back in November 1775, several of the American colonies, including Massachusetts, established prize courts to exercise original jurisdiction over all cases (libels) of captures (prizes) consisting of enemy ships and cargo. Indeed, the establishment of such prize courts had been recommended by the federal (Continental) Congress on Nov. 25, 1775. Over time, however, Congress sought to monitor, and oversee, the state prize courts’ work-product and results.

The idea for a special federal court to handle appeals from the states’ prize courts had sprung from the mind of then General George Washington. During the American Revolution, Washing-

ton asked the president of Congress, John Hancock, Esq., on several occasions to take action. Sadly, it took years as Congress flailed and fumbled about, only to set up various committees within Congress to exercise such jurisdiction. Eventually, though, the Court of Appeals in Cases of Capture was established by a Resolution of the Continental Congress on January 15, 1780,18 making it the first federal court in the United States of America.

As a technical matter, even though express power to establish the Court was granted to Congress by the Articles of Confederation (in 1777), the Articles had not yet been fully ratified by all 13 of the original states when Congress established the Court on January 15, 1780. Indeed, they were not ratified until March 1, 1781. However, the U.S. Supreme Court subsequently ruled, in a 1795 case, that Congress nonetheless had possessed the inherent power, back in 1780, to establish the Court.19

A Short-Lived But Important Appellate Tribunal As it turned out, the Court operated for a relatively finite period of time, from 1780 through its final cases in 1787 after the War for Independence had concluded. The Court ceased to exist following ratification of the U.S. Constitution in 1789,20 as that majestic document transferred federal judicial power to the newly created U.S. Supreme Court and such other inferior (to wit, lower) federal courts as Congress might establish.

Notwithstanding the foregoing, the Court served some important functions.

“Usually seeking out merchant ships, privateers tirelessly attacked the British during the Revolutionary War, motivated by a powerful cocktail of greed and patriotism. Because it was not always clear whether a captured ship was British, American, or neutral, and because more than one privateer sometimes participated in a capture, disputes over the spoils arose early and often.”21 Additionally, a number of scholars have pointed out that this court influenced aspects of Article III of the Constitution, promoting a better understanding of the need for a national judiciary, emphasizing the need for a separation of powers in the branches of government, promoting Congress’s war powers, and pointing the way to a single Supreme Court legally to rule over the entire land.22

Prize Court Appellate Jurisdiction As previously noted, in fall 1775, Congress had flexed its legislative muscle and asserted federal appellate jurisdiction over prize case appeals. Regrettably, internal scheduling difficulties ensued. The first appeal, The Case of the Schooner Thistle, was received by Congress in August 1776. Congress attempted to hear such appellate matters by delegating jurisdiction over them to various special committees and, later, to a standing committee (but, as to the latter, not until January 1777).

About three years later, on Jan. 15, 1780, Congress established the Court of Appeals in Cases of Capture to exercise this jurisdiction and sit as a court of last resort. On May 24 of that year, Congress transferred all remaining prize case appeals to the court and specified that all future appeals were to be filed directly with the court. Approximately six years down the road, on June 27, 1786, the court’s jurisdiction was again expanded to include rehearings and new trials where justice so required.23 November/December 2020 • THE FEDERAL LAWYER • 7

The Court of Appeals “Rides the Circuit” The court’s inaugural session was mandated to, and did, occur in the City of Brotherly Love, Philadelphia.24 Then, as a gypsy soul, the court could be likened to a traveling tribunal.

Later sessions were conducted at other times and locations around the young country. Nonetheless, territorial boundary limits were imposed as to where the court could sit. Cases could not be heard farther East than Hartford, Conn., or farther south than Williamsburg, Va.25 As the years passed, other court sessions were held in Richmond, Va., and New York.26

The Court’s Procedural Rules An appeal to the Court of Appeals in Cases of Capture was commenced by an aggrieved party, as a threshold step, demanding an appeal in the trial court within five days after the issuance of a definitive Sentence. Next, within 40 days of the demand, as described above, the party had to lodge the appeal and tender an adequate security to the court.27 Jury trials were neither available nor authorized.28 However, trial by jury was authorized in some of the state prize (trial level) courts, where Congress initially recommended it, only to later recommend against it.

In order to pay for the expense of this federal prize case appellate court, a half percent of the value of a prize had to be paid into the Continental Treasury.

The Jurists on the Bench of the Appellate Court The Court of Appeals in Cases of Capture was designed to be composed of a panel of three judges. Under the rules, however, in order to sit on and hear a case, a quorum of only two judges was required.29 At first, annual salaries were fixed for the judges and their expenses reimbursed. The Congressional Journal indicates an advance salary of $12,000 was paid per annum for each judge toward a $25,000 salary and expenses compensation package.30 As time wore on, the allowed compensation was changed to fixed daily rates, which included time spent “riding the circuit” in order to conduct the court’s calendar business.

By the end of December 1784, the court had disposed of all cases before it and lay dormant. That hiatus did not last for long. Henceforth, it was reconvened as necessary.

The judicial personnel for this appellate court were elected by Congress. The court was allowed to select its own register (clerk of court). As a formal matter, the judges serving on this court were mandated to swear an oath of office, administered by the president of Congress, as follows: “You do swear [or affirm] that you will well, faithfully and impartially execute the office of one of the judges of the Court of Appeals in Cases of Capture, according to the best of your skill and judgment. So help you God.”31 Only five men ever served on this appellate court. Those gentlemen of the bar, hand-picked for this court by Congress, were some of the legal luminaries and prime politically pedigreed professionals of the age.

The short biographical sketches set forth below should afford one with some idea of the sagacity and stature of these federal jurists.

Hon. William Paca (1740-1799): Though born in British America, Judge Paca was educated in England at the Inner Temple 8 • THE FEDERAL LAWYER • November/December 2020

in London. He returned to these shores to read law in Maryland in 1761. A delegate to both Continental Congresses, he was a signer of the Declaration of Independence. Later, he was made governor of Maryland (1782-1785) and, thereafter, was appointed as the first U.S. district judge for the District of Maryland (1789-1799).32 During the period from February 1780 through November 1782, he was a judge on the Court of Appeals in Cases of Capture.33 Hon. Titus Hosmer (1736-1780): Born and educated in Connecticut, Judge Hosmer read law and entered the bar after graduating from Yale. Both a Connecticut state assemblyman and later a state senator, he also was a delegate to the Continental Congress (1778). Elected to the Court of Appeals in Cases of Capture on Jan. 22, 1780, he accepted the office on April 12, 1780.34 He died in office on Aug. 4, 1780.

Hon. George Wythe (1726-1806): Judge Whythe, a Virginia jurist and Founding Father, is notable for not serving on this court.

Whythe, a judge for much of his professional life, was a classical scholar and is recognized as the first American law professor (he taught, among other historical giants, Thomas Jefferson and John Marshall). He was elected by Congress on Jan. 22, 1780, to the Court of Appeals but, disappointingly, he declined to serve.

Hon. Cyrus Griffin (1748-1810): Born in the Virginia Colony, British America, Judge Griffin’s legal education was obtained at the University of Edinburgh in Scotland and at the Middle Temple in London. Over the years, he wore many legal and political hats, including being a member of the House of Delegates of Virginia35 and the president of the Ninth Congress of the Confederation (17871788). Later in life, he was appointed as the first U.S. district judge for the District of Virginia (1789-1810).36 Back in 1780, however, Congress elected him to be a judge of the Court of Appeals in Cases of Capture.37 He served on the court until 1787.

Hon. George Read (1733-1798): Judge Read was born in Delaware and, indeed, later became a U.S. senator from Delaware (1789-1793), not to mention the chief justice of the state’s Supreme Court (1793-1798). Read is just one of two American statesmen who had signed all three of this country’s most important papers of state—namely, the Petition to the King of the Congress (1774), the Declaration of Independence (1776), and the Constitution of the United States (1789). Judge Read was elected on Dec. 5, 1782, by Congress to the Court of Appeals in Cases of Capture.38 Hon. John Lowell (1743-1802): Judge Lowell was born in the Massachusetts Bay Province, British America. After graduating from Harvard in 1760, he read law in 1763. He honorably served as a Major during the American Revolutionary War. After the war, he became a wealthy private attorney, mainly representing privateers’ claims before the Admiralty Court. Among many other public offices he held, he later served as the first U.S. district judge for the District of Massachusetts (1789-1801), and after that, he was elevated to sit on the U.S. Circuit Court of Appeals for the First Circuit (1801-1802).39 Judge Lowell was elected by Congress to the Court of Appeals in Cases of Prize on the same day as Judge Read, Dec. 5, 1782; he accepted the office on Feb. 12, 1783.40

Representative Cases Decided by the Court Congressional Committees handled matters of capture between September of 1776 and March 1780 (covering about 64 prize cases).

The records of only around 50 cases have been excavated among the surviving records of this early court. Those matters that were lodged with and decided by the court include about a dozen cases that had been transferred from various congressional committees.

The earliest decision handed down by the Court of Appeals, as to which the written record is clear, was the case of Rathburn v. The Ship Mary, an appeal from the Judgment of the Maritime Court for the Southern District of Massachusetts Bay. The lower court’s decision was affirmed on June 23, 1780.

Ostensibly, the Court of Appeals in Cases of Capture typically eschewed handing down formal, written opinions. Nevertheless, there exist a handful of opinions of the court that were published by the Supreme Court’s reporter,41 as illustrated in the following cases: The Resolution, 2 U.S. (2 Dall.) *1 (Ct. App. in Cases of Capture, 1781). This was a consolidated appeal from the Admiralty Court from Pennsylvania, decided during the August Session of 1781. The decision takes up legal issues such as prize, neutral property, recapture of a vessel and its cargo, illegal contract, capitulation, and allies.

The Resolution, 2 U.S. (2 Dall.) *19 (Ct. App. in Cases of Capture, 1781). This was a rehearing of the above-cited appeal, decided during the December Session of 1781. The legal issues covered in this decision are rehearing; evidence, in case of prize; and neutrality.

The Erstern, 2 U.S. (2 Dall.) *34 (Ct. App. in Cases of Capture, 1782). This was an appeal from the Admiralty Court from Massachusetts Bay, decided during the January Session of 1782. This decision dealt with the legal issues of prize and neutral property.

The Gloucester, 2 U.S. (2 Dall.) *36 (Ct. App. in Cases of Capture, 1782). This was an appeal from the Admiralty Court from Pennsylvania, reported in January 1872. This decision dealt with the legal issues of prize money; distribution of the prize property was ruled to be made in accordance with, and in proportion to, the number, interest, and merits of the captors.

The Squirrel, 2 Dall. *40 (Ct. App. in Cases of Capture, 1783). This was an appeal from an Admiralty Court decided during the May Session of 1783. This decision dealt with the legal issues of sale of prize property in perishing condition; the schooner, her tackle, apparel, and furniture were ordered to be sold at auction for the use of the ultimately prevailing party.

The Speedwell, 2 Dall. *40 (Ct. App. in Cases of Capture, 1784). This was an appeal from the Admiralty Court from Rhode Island. This decision dealt with a capture that occurred after the operation of preliminary articles of peace; thus, the ship’s condemnation was reversed.

Luke v. Hulbert, 2 Dall. *41 (Ct. App. in Cases of Capture, 1787).

This appeal was decided during the May Session of 1787. The appeal was not sustained (i.e., the petition was dismissed) in the court’s discretion, under authority of a congressional resolution of June 1786, as the judges were of the opinion that the interests of “justice and right” did not require the appeal to proceed.

The Experiment v. The Chester, 2 Dall. *41 (Ct. App. in Cases of Capture, 1787). This was an appellate rehearing during the May Session of 1787. It was an appeal from the Admiralty Court in South Carolina. Despite some irregularities in the proceedings, the court would not sustain the appeal because it did not appear that substantial justice would be prevented. In view of the fact that the captors of the vessel had engaged in some irregularities, however, and had thus “given color to the petition,” the court refused to award any costs to the respondents.

From a reading of this relatively small batch of hand-crafted opinions of the Court of Appeals in Cases of Capture, a few interesting factoids may be distilled.

First, the judges of the court are routinely referred to as “Commissioners” or “Presiding Commissioners,” and not “Judges,” in the

written opinions. Second, the Judgment of the Court frequently is referred to as the “Sentence.” Third, notwithstanding the foregoing, the words “Decree” and/or “Judgment” also sometimes are utilized.

Fourth, the decisions make it clear that this court allowed appellate rehearings upon presentation of new evidence. Fifth, new trials were allowed in the interest of justice. Sixth, most of the decisions refer to a two-judge panel; only a few mention a triumvirate of judges.

Custody of the records from this appellate court initially were transferred over to the U.S. Supreme Court.42 Today, the National Archives is the custodian of the court’s records.43

The Court of Appeals Is No Longer in Session In the aftermath of the U.S. Constitution (most particularly Article III thereof ), the death knell sounded for the Court of Appeals in Cases of Capture. Stated otherwise, the new government signaled this court’s sudden obsolescence.

As it turned out, the last official session of the court was held on May 16, 1787. That event took place in Philadelphia, where the court had first convened upon its founding.

Under the Constitution and the pertinent statute(s), jurisdiction in prize cases was shifted to the new federal district courts. See Title 28, U.S. Code Section 1333, which today provides, in haec verba, as follows: “The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize” (emphasis added) The federal courts continued to adjudicate prize cases long after 1789. One of the most famous was ruled on in 1863, during the American Civil War. In The Prize Cases, a matter involving several seized Confederate ships, the U.S. Supreme Court upheld the constitutionality of the Northern forces’ blockade of the Southern ports, as ordered by President Abraham Lincoln, prior to any Congressional Declaration of War on the Confederacy.44 Those cases, however fascinating, are beyond the purview of this particular piece of writing.

Conclusion In the 19th century, as Lord Mansfield explained in reference to the Court leet,45 “[t]hese Courts were very properly adapted to the customs, manners, genius and policy of a people upon their first settlement but, like all other human jurisdictions, vary in the course of progress and time, as the Government and manners of a people take a different turn, and fall under different circumstances.”46 A century or so later, Sir Winston Churchill, a staunch proponent of the life-long study of history, astutely observed: “History with its flickering lamp stumbles along the trail of the past trying to reconstruct its success to revive the echoes and kindle with pale gleams the passion of former days.”47 Nevertheless, with the advancement of time, of necessity, comes change; our courts and our judicial system must, and do, evolve.

November/December 2020 • THE FEDERAL LAWYER • 9

As for us modern day attorneys and counsellors at law, we must diligently and scrupulously persist in the practice and tradition of the study of history. To best do so, we would do well to echo Cicero’s timeless and sage advice: “Read at every wait; read at all hours; read within leisure; read in times of labor; read as one goes in; read as one goest out. The task of the educated mind is simply put: read to lead.”48 

For Further Reading: J.C. Bancroft Davis, “Federal Courts Prior to the Adoption of the Constitution,” in 113 U.S. app. xix-xlix.

George Washington, Letters, in 3 The Writings of George Washington, 1775-1776 (Worthington Chauncey Ford, New York and London, G. P. Putnam's Sons 1889).

Endnotes “The name of this Confederation shall be the United States of America.” William Safire, No Uncertain Terms: More Writing From the Popular “On Language” Column in the New York Times Magazine 38 (Simon & Schuster 2004) (quoting second draft of the Articles of Confederation, June 17, 1776).

2 16 Journals of the Continental Congress 1774-1789, Jan. 15, 1780, at 61-64 (Worthington Chauncey Ford ed., Library of Congress 1905).

3 The Judiciary Act of 1789, ch. 20, I Stat. 73, adopted by the first U.S. Congress on September 24, 1789. Article III, Section 1 of the Constitution prescribed that the “judicial power of the United States, shall be vested in one Supreme Court, and such inferior Courts” as Congress saw fit to establish. It made no specific provisions for either the composition or procedures of any of the court organs, leaving such matters for Congress to determine.

4 Historia vero testis temporum, lux veritatis, vita memoriae, magistra vitae, nuntia vetustatis, qua voce alia nisi oratoris immortalitati commendatur? Cicero, De Oratore, Bk. II, section 36 5 See Prize Courts Act 1894, 57 & 58 Vict. (UK); Senior Courts Act 1981, c. 54, §§ 20(1)(d), 27, and 62(2) (UK).

6 Admiralty Court, Black’s Law Dictionary 43 (Special Deluxe 5th ed. 1979).

7 Articles of Confederation, Black’s Law Dictionary 102 (Special Deluxe 5th ed. 1979).

8 Capture, Black’s Law Dictionary 192 (Special Deluxe 5th ed.

1979). A “captor,” in international law, is one who takes a prize at sea.

9 Court of Last Resort, Black’s Law Dictionary 794 (Special Deluxe 5th ed. 1979).

10 Letter of marque and reprisal, Black’s Law Dictionary 814 (Special Deluxe 5th ed. 1979). See also Edgar Stanton Maclay, A History of American Privateers 7 (1899).

11 Libel, Black’s Law Dictionary 824 (Special Deluxe 5th ed. 1979).

12 Libelant, Black’s Law Dictionary 825 (Special Deluxe 5th ed.

1979).

13 Marque (Law of Marque), Black’s Law Dictionary 876 (Special Deluxe 5th ed. 1979).

14 Privateer, Black’s Law Dictionary 1076 (Special Deluxe 5th ed. 1979) (A privateersman who accepted a Letter of marque and reprisal from both belligerents was regarded as a “pirate”).

15 Prize, Black’s Law Dictionary 1080 (Special Deluxe 5th ed. 1979).

16 Prize Courts, Black’s Law Dictionary 1080 (Special Deluxe 5th ed. 1979).

17 See 28 U.S.C. 1333.

1

10 • THE FEDERAL LAWYER • November/December 2020

Journals of the Continental Congress, supra note 2, at 61.

See Penhallow v. Doane’s Adm’rs, 3 U.S. 54 (1795). Under current U.S. law, pursuant to 10 U.S.C. §§ 7651-7681, U.S. district courts exercise exclusive jurisdiction over prize cases.

20 Id. (holding that the existence of the Court of Appeals in Cases of Capture terminated with the old government of the United States of America).

21 Deidre Mask & Paul MacMahon, The Revolutionary War Prize Cases and the Origins of Diversity Jurisdiction, 63 Buff. L. Rev. 477, 480 (2015).

22 See, e.g., Robert J. Steamer, The Legal and Political Genesis of the Supreme Court, 77 Pol. Sci. Q. 546, 561 n.21 (1962).

23 30 Journals of the Continental Congress 1774-1789, June 27, 1786, at 355-56 (Worthington Chauncey Ford ed., Library of Congress 1905).

24 Journals of the Continental Congress, supra note 2, at 61.

25 Id. 26 Journals of the Continental Congress, supra note 23; see also 24 Journals of the Continental Congress 1774-1789, Jan. 29, 1783, at 98 (Worthington Chauncey Ford ed., Library of Congress 1905).

27 17 Journals of the Continental Congress 1774–1789, May 24, 1780, at 459 (Worthington Chauncey Ford ed., Library of Congress 1905).

28 Journals of the Continental Congress, supra note 2, at 61.

29 Id. 30 Id. 31 Journals of the Continental Congress, supra note 27, at 458.

32 See Federal Judicial Center, Biographical Directory of Article III Federal Judges, https://www.fjc.gov/history/judges/ paca-william (last visited Nov. 12, 2020).

33 Journals of the Continental Congress, supra note 2, at 79.

34 Id. 35 Virginia was the largest of the 13 original colonies and, later, states.

In 1776, Virginia extended its claims far westward to the Mississippi River, as well as north to the southern boundary of the Hudson Bay Company, Canada.

36 See Federal Judicial Center, Biographical Directory of Article III Federal Judges, https://www.fjc.gov/history/judges/ griffin-cyrus (last visited Nov. 12, 2020).

37 16 Journals of the Continental Congress 1774–1789, Jan. 22, 1780, at 61-64 (Worthington Chauncey Ford ed., Library of Congress 1905).

38 23 Journals of the Continental Congress 1774–1789, Dec. 5, 1782, at 765 (Worthington Chauncey Ford ed., Library of Congress 1905).

39 FederalJudicial Center, Biographical Directory of Article III Federal Judges, https://www.fjc.gov/history/judges/ lowell-john-0 (last visited Nov. 12, 2020).

40 Journals of the Continental Congress, supra note 38, at 765.

41 The first and second Supreme Court Reporters (Dallas and Cranch) acted in unofficial capacities. The first Reporter, Alexander J. Dallas, Esq., handled the task for the first decade, from 1790-1800. He edited Volumes 1-4 (aka “1-4 Dallas”).

42 Second Militia Act of 1792, ch. 36, 1 Stat. 275, 279 (transferring the continued on page 19 18 19

National Spotlight

Federal Detention Amid the COVID-19 Pandemic: A Follow-Up

By Judge Gabriel A. Fuentes

Gabriel A. Fuentes was sworn in as a U.S. magistrate judge for the Northern District of Illinois in May 2019 after serving as a partner at the law firm of Jenner & Block LLP in Chicago. In his 20 years of private practice at Jenner & Block, Judge Fuentes litigated complex civil matters, represented corporate and individual defendants in federal criminal cases, and co-chaired the firm’s Pro Bono Committee.

His career also included five years as a criminal prosecutor with the U.S. Attorney’s Office in Chicago. He is a graduate of the journalism and law schools at Northwestern University, where he currently serves as an adjunct faculty member.

When the outbreak of the novel coronavirus began to take hold across the United States in the late winter and early spring of 2020, federal judges began seeing arguments for pretrial release, either at the initial detention stage or after detention. As was noted in this space in the March/April issue of The Federal Lawyer, defendants were arguing that pretrial detention in the pandemic imposed on them an impermissible risk of contracting the potentially fatal COVID-19 disease, that the risk of uncontrolled outbreaks in congregate jail settings posed an unacceptable risk to community safety, and that risks associated with incarceration in the pandemic constituted a “compelling reason” making “necessary” a “temporary release” to an “appropriate” custodian under 18 U.S.C. §3142(i).1 Now, at this writing, the virus persists, but our research indicates that judges are seeing notably fewer motions for release based on COVID-19, as a majority of courts have denied release or have indicated that release would be granted only in limited circumstances, such as those in which a defendant could establish a significant medical vulnerability to the virus.

Without analyzing each motion comprehensively— as hundreds of motions were filed in various judicial districts—a sampling of those decisions indicates that courts largely have been persuaded not to release defendants already found to pose a danger to the community, amid a showing of preventative measures undertaken and documented by jail officials, as part of a multifactorial analysis of whether the pandemic could be considered a “compelling reason” for release under Section 3142(i).2 For example, the opinion in United States v. Clark, denying release, was cited as of mid-July 2020 by more than 200 decisions mostly denying release during the pandemic.3 Clark’s four-factor analysis is as follows: • Th e original grounds for the defendant’s pretrial detention.

• The specificity of the defendant’s COVID-19 concerns.

• Th e extent to which the proposed release plan is tailored to mitigate or exacerbate other COVID-19 risks to the defendant.

• The likelihood that the defendant’s proposed release would increase COVID-19 risks to others.4 “The court will not necessarily weigh these factors equally,” wrote the magistrate judge in Clark, “but will consider them as a whole to help guide the court’s determination as to whether a ‘compelling reason’ exists such that temporary release is ‘necessary.’”5 The Clark factors cannot be found in the text of Section 3142(i), but they represent a creative judicial response to an unprecedented situation the statute did not anticipate. In such unprecedented or unanticipated circumstances, judges are put to deciphering and applying statutory text within the context of the statute’s objectives, just as a soldier might try to make sense of a garbled battlefield communication amid fast-moving developments in a time of war.6 In terms of Bail Reform Act mechanics, some courts have reasoned that the risks posed to a defendant by COVID-19 do not analytically fit into the framework of the four factors set forth in 18 U.S.C. § 3142(g) of whether the government can meet its burden, on a detention motion, of showing that no release conditions will reasonably assure the defendant’s appearance or the safety of any other person and the community.7 But not all courts have taken such a formalistic view of the Section 3142(g) factors as applied to a motion seeking release based on the COVID-19 pandemic.8 Section 3142(g) textually implicates the safety of the community, and in reality, a decision to detain a person may have an incremental impact on community safety in the event that it contributes to an outbreak within the jail community and to a strain on the ability of local community medical facilities to care for the infected.9 Section 3142(i), allowing “temporary” release to a custodian when a “compelling reason” as “necessary,” exists as a sort of safety-valve, insofar as it authorizes such “temporary” release by an order “subsequent” to the initial detention order.10 Defendants at the initial detention November/December 2020 • THE FEDERAL LAWYER • 11

stage may argue that the pandemic conditions support their case for release under the Section 3142(g) factors, and if that argument fails, or if they were previously detained under Section 3142(e) through an application of the (g) factors, they might seek release under Section 3142(i). Defendants filed hundreds of these kinds of motions during the spring of 2020.

As summer came, a sampling of published or available decisions indicated that bids for pretrial release on grounds related to the pandemic tailed off significantly, perhaps because many of the motions had not succeeded, prompting counsel to emphasize other, more traditional grounds for release under the Section 3142(g) factors.

Meanwhile, it is difficult to say definitively whether any of the Clark factors, which run through many pandemic-related pretrial detention decisions, including those not expressly citing Clark, have been more important than any other. The first factor, concerning the original grounds for a Section 3142(g) detention decision, is critically important because that original decision to detain sets the landscape for a subsequent motion citing the pandemic. A defendant’s dangerousness, as found by courts at the initial detention phase, might be so significant that a balancing of the risks persuades courts that no matter the COVID-19 risks, either to the defendant or the community, detention is necessary.11 Defendants for whom detention is not sought on the ground of dangerousness, but rather on facts indicating they are a flight risk, might have a better chance at release under an argument that pre-trial detention introduces a new set of risks to the community during a pandemic.12 On the other hand, some courts confronted with COVID-19 release motions by defendants detained only as flight risks have denied release notwithstanding concerns about the pandemic.13 The second factor, considering the specificity of the defendant’s COVID-19 concerns, also has played a major role in the judicial decisions. Defendants who, at the time of arrest, report no underlying medical conditions to Pretrial Services or who are considered “young and healthy” have fared especially poorly under this factor, as courts generally have not seen a compelling reason to release such individuals based on a risk of infection or of infecting others.14 But defendants who can articulate or establish medical conditions making them more vulnerable to a more severe onset of COVID-19 have fared better.15 One obvious conclusion is that courts are more likely to entertain a bid for pretrial release by defendants with medical vulnerabilities that place them at far more serious risk than those without such vulnerabilities.16 The third factor, which concerns the specifics of the defendant’s release plan and the public safety considerations associated with them, is highly fact-specific. For instance, a court may be concerned about releasing a defendant already infected with COVID-19, particularly into the custody of a vulnerable person, or into the community generally. Under Section 3142(i), the custodian into whose custody a defendant is to be released temporarily must be an “appropriate” custodian.17 Applying this third factor in support of detention, the court in Clark reasoned that the defendant could not establish that jail officials would be unable to provide him with appropriate medical care if he were to be infected, while the defendant offered few specifics about how his plan for release to his mother’s custody would “mitigate[] the risk of infection.”18 This third factor is complex and not subject to broad generalizations about its applicability. Needless to say, including this factor within the detention or release analysis in the COVID-19 context gives courts flexibility to consider the safety 12 • THE FEDERAL LAWYER • November/December 2020

of others, including the community immediately around a defendant who is proposing to be released. But this part of the analysis is fraught with subjectivity and may be less important than the other three factors.

The fourth factor has turned heavily on the government’s ability to detail the measures it has taken at local jails to reduce the risk of transmission of the virus.19 As such, it is a critical factor. But as was the case early in the pandemic, our collective knowledge about the virus and its transmission, particularly from the asymptomatic and pre-symptomatic in congregate settings like jails, continues to evolve.20 The greater the specificity of the government’s proffer about its preventative measures, and of the facts presented about the status of infections at the local jail, the greater the ability of judges to apply this factor to the motions before them.

In sum, the consensus from the wave of COVID-19 pretrial release motions through the thick of the outbreak seems to be that less dangerous defendants with significant medical vulnerabilities and a clear release plan—designed to reduce the risk that they or others could be put at risk of infection upon their release—have the best chance at winning their motions. But as these motions have been brought across a wide spectrum of individual circumstances, including many involving more dangerous defendants and the absence of significant medical vulnerabilities, the odds are against release in many if not most of the cases. Judges can be expected to continue to bring their fact-skepticism to these motions as they make the individualized determinations at the root of decisions concerning release or detention under the Bail Reform Act.  Judicial extern Mackenzie Krage provided valuable research assistance in support of this article.

Endnotes Gabriel A. Fuentes, Federal Detention Amid the COVID-19 Pandemic: A New Frontier, The Federal Lawyer, Mar./Apr. 2020, at 5. See also Gabriel A. Fuentes, Federal Detention and “Wild Facts” During the COVID-19 Pandemic, 110 J. Crim. L. & Criminology 441 (2020) (discussing in greater detail the theory, doctrine, and practice of federal bail decisions during the pandemic).

2 See, e.g., United States v. Serna, No. 19-cr-20079-JAR, 2020 WL 3034823 (D. Kan. June 5, 2020) (adopting four-factor analysis in United States v. Clark, No. 19-40068-01-HLT, 2020 WL 1446895 (D. Kan. Mar. 25, 2020), for analyzing whether pandemic conditions could establish a compelling reason under Section 3142(i)).

3 See Clark, supra note 2.

4 Id. at *3.

5 Id. (quoting 18 U.S.C. § 3142(i)).

6 See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179, 190-91 (1987). Aside from Clark’s helpful articulation of the four factors with respect to whether a “compelling reason” exists to grant temporary release under Section 3142(i), a court also may be presented with an argument that under the particular facts and circumstances, temporary release under Section 3142(i) is necessary to allow the defendant to prepare his defense. See United States v.

Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *3 (S.D.N.Y. Mar. 19, 2020) (granting release under Section 3142(i) because of the impact of coronavirus-related BOP restrictions on the defendant’s ability to meet with his attorney).

7 See United States v. Gallagher, No. SAG-19-0479, 2020 WL 2614819, 1

at *3 (D. Md. May 22, 2020) (stating that unless a defendant’s medical condition reduces the risk of flight or the danger to the community, “a particular defendant’s health conditions, and the possible risks posed to the defendant by incarceration, do not affect the § 3142(f ) and (g) analysis”). Interestingly, a few courts have considered the degree to which the circumstances of the pandemic, including limitations on public interaction and movement, might well reduce a defendant’s risk of flight or danger to the community upon release. See United States v. Ramos, 18-CR-30009-FDS, 2020 WL 1478307, at *1 (D. Mass. Mar. 26, 2020) (granting pretrial release to defendant with asthma and diabetes on grounds including jail conditions but also upon the disincentives to his flight and his further criminal activity because of the risks of catching COVID-19 from engaging in those activities). The notion that COVID-19 shifts the Bail Reform Act’s balancing of factors away from detention is a pragmatic approach that recognizes a lesser likelihood of flight or continued criminal conduct upon release. See also United States v.

Fellela, No. 3:19-cr-79 ( JAM), 2020 WL 1457877, at *1 (D. Conn.

Mar. 20, 2020) (finding that travel and commercial restrictions brought on by the COVID-19 crisis made flight “enormously more risky and complicated” and made it “that much more difficult for any attempted fraud activities to succeed,” warranting release pending sentencing under Section 3143(a)).

8 See, e.g., United States v. Davis, No. ELH-20-09, 2020 WL 1529158, at *4 (D. Md. Mar. 30. 2020) (releasing defendant at the initial detention stage, under a Section 3142(g) analysis, based on court’s agreement with letter from public health experts asserting that “reducing the number of detained persons in Maryland will make the community safer”).

9 A few courts simply have accepted that the Bail Reform Act’s concept of “danger to the community” encompasses the additional risk of the spread of infection, inside and outside of a jail. See United States v. Little, No. 20 CR 57, 2020 WL 1439979, at *4 (S.D.N.Y. Mar. 24, 2020) (considering the total harm and benefit to prisoner and society from continued detention of detainee, and noting that “part of the ‘danger to the community’ calculus ha[s] to include the risk of a new inmate bringing the virus into the facility”). In the meantime, anecdotal evidence continues to mount about the impact a COVID-19 outbreak inside a correctional institution may have on the surrounding community. As of the end of June 2020, more than 1,000 prisoners at California’s state prison at San Quentin were reported to have tested positive for the novel coronavirus. Richard Winton & Taryn Luna, San Quentin coronavirus outbreak spreads; 1,113 prisoners infected, death row inmate dies, Los Angeles Times ( June 30, 2020), https://www.latimes.com/california/story/2020-06-30/ san-quentin-coronavirus-outbreak-prisoners-infected-death-rowinmate-dies-covid-19. Hospitals in Marin County, Calif., where San Quentin is located, “have been inundated with intensive care patients from the prison ….” Id. 10 18 U.S.C. § 3142(i). Importantly, the statute does not elaborate on the meaning of the terms “compelling reason,” “necessary,” and “another appropriate person [the custodian to whom a defendant would be released temporarily].” Courts have observed that temporary release under Section 3142(i) has been employed “sparingly” to allow release of terminally ill or seriously injured detainees, see Clark, 2020 WL 1446895 at *2, but the statute’s text does not limit its application to those circumstances. Nor is a time frame specified for temporary release motions being brought

“subsequent” to detention orders, meaning the statute does not appear to prohibit defendants from making the Section 3142(i) motion contemporaneously with their opposition to detention, in contemplation of a court reaching the Section 3142(i) question immediately after it has decided that detention is called for by Section 3142(e).

11 See United States v. Lunnie, No. 4:19-cr-00180 KGB, 2020 WL 1644495, at *2 (E.D. Ark. Apr. 2, 2020) (denying COVID-19 motion for temporary release under Section 3142(i) of “high-risk defendant” for whom “[t]he need for detention is not even a close call”).

12 See United States v. Cox, No. 19-cr-271, 2020 WL 1491180, at *4 (D. Nev. Mar. 27, 2020) (“[A]n individual citing ‘compelling reasons’ based on the threat of COVID-19 who is charged with a non-violent offense and who was previously detained as a flight risk may fare better in this analysis than the individual charged with a violent offense who has been found to be both a danger to the community and a flight risk.”).

13 In United States v. Yu Zhou and Li Chen, No. 19-CR-163, 2020 WL 1643634 (S.D. Ohio Apr. 2, 2020), a wire fraud and trade secrets theft case brought against two Chinese nationals, the government did not rely on danger to the community as grounds for detention, arguing instead that the defendants had the means and ability to flee the country if they were released. On the defendants’ motion to re-open the bail hearing, the court determined that the emergence of COVID-19 was immaterial to “whether there are conditions of release that will reasonably assure the future appearance” of those defendants. Id. at *3.

14 See Gallagher, supra note 7, at *5-7.

15 See United States v. Michaels, No. SACR 16-76-JVS, 2020 WL 1482553, at *1 (C.D. Cal. Mar. 26, 2020) (granting temporary release to defendant who was “of an age and has medical conditions that place him in the group most susceptible to Covid-19”); United States v. Perez, No. 19 CR 297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (granting temporary release to defendant amid COVID-19 pandemic “based on the unique confluence of serious health issues and other risk factors” that included defendant’s “serious progressive lung disease and other significant health issues”).

16 Whether or not the risk to a defendant’s health fits within the Section 3142(g) evaluative framework, the federal constitutional prohibition on punishment of pre-trial detainees, including by subjecting them to objectively unreasonable risks of harm, remains as an additional argument for release during the pandemic. See Mays v. Dart, No. 20 C 2134, 2020 WL 1987007, at *23-25 (N.D. Ill. Apr. 27, 2020) (describing constitutional standards for conditions of pre-trial detainees’ confinement), rev’d in part on other grounds, 2020 WL 5361651 (7th Cir. Sept. 8, 2020).

17 See United States v. Lee, No. 19-cr-298 (KBJ), 2020 WL 1541049, at *7 (D.D.C. Mar. 30, 2020) (refusing Section 3142(i) bid for temporary release into custody of defendant’s mother, whom the court deemed not appropriate); 18 Clark, supra note 2, 2020 WL 1446895, at *6.

19 See United States v. Sumbry, No. 2:20-CR-35-PPS JPK, 2020 WL 2092838 (N.D. Ind. May 1, 2020) (denying defendant’s request for release considering the measures taken to address COVID-19 at local jail); United States v. Prieto, No. 3:19-cr-142-RGJ, 2020 WL 3105414 (W.D. Kentucky June 11, 2020) (denying defendants’ motions for continued on page 19 November/December 2020 • THE FEDERAL LAWYER • 13

REMEMBERING

JUSTICE RUTH BADER GINSBURG MAJOR GENERAL WILLIAM K. SUTER, JAGC, USA (RET.) CLERK OF THE U.S. SUPREME COURT (RET.)

M

uch has been chronicled about Justice Ginsburg’s superb abilities and accomplishments as a teacher, attorney, and jurist. I will not attempt to expand on her well-deserved illustrious record. She will be remembered as a legal giant in the history of our nation. My purpose is to reflect on her through the eyes of the Clerk of the Court.

Justice Ginsburg joined the Supreme Court about two and a half years after I was appointed Clerk. I knew about her, but I had never met her and had no reason to anticipate what it would be like working for her. We met in her Chambers shortly after her arrival, and I reviewed case processing procedures and other administrative matters with her. She was an experienced jurist, but doing business at the high court is unique and quite different from the circuit court procedures with which she was familiar.

I liked her the moment we met. She was friendly and attentive and was not at all fearful of asking what some might label rookie questions. On the contrary, a rookie she was not. She was extraordinarily bright, and I quickly recognized that I was going to enjoy working for her. During our meeting, she spoke fondly of the time she and her husband lived at Fort Sill, Okla., where he was an Army artillery officer. She knew of my military background and thoughtfully mentioned her Army days.

It is humorous that by replacing Justice Clarence Thomas as the junior justice, she became junior to him despite having been senior to him when they were colleagues as judges on the Court of Appeals for the D.C. Circuit. She accomplished her duties as the junior justice with the same dedication she displayed with everything she did. Taking notes at Conferences and chairing the cafeteria committee are just two of the junior justice’s duties. They are hardly sought-after positions.

Justice Ginsburg, despite her soft voice, was powerful in asking questions during oral arguments. I never observed her raise her voice or lose her temper in Court or elsewhere. During her first few years on the Court, she and Justice O’Connor were the only women justices. They did not look or sound alike. Nevertheless, on several occasions, attorneys called one of them by the other one’s name. The hapless attorneys did not realize their error until tittering erupted in the Bar section of the Courtroom. Both justices always smiled and took the faux pas in good spirits.

14 • THE FEDERAL LAWYER • November/December 2020

Justice Ginsburg was very generous with her time. She supported the FBA and other legal organizations and frequently met with groups of lawyers and students and other Court visitors. On one occasion, when several friends who were retired senior Israeli Ministry of Defense officials visited me, they told me the only person they wanted to visit was Justice Ginsburg. When I contacted her, she immediately invited my friends to her chambers for coffee and conversation. The guests were thrilled to meet with her. That was typical of her.

Here is an example of her kindness to others as related to me by a former Court intern named Jodie. When Jodie was an undergraduate, she was once in the courtroom listening to a presentation by Justice Ginsburg, who asked for questions. Jodie raised her hand and boldly announced that she was finding it difficult to secure a summer intern position. Justice Ginsburg took her seriously and linked her with the public information officer. Jodie became a Court intern and worked in several offices that summer, including mine. She was superb in every respect. She later graduated from college and law school and went on to receive a doctorate degree. She is now a professor at a major university. Jodie reflects that “the Justice gave me a break.”

One of the most striking of Justice Ginsburg’s habits was that she answered written and electronic correspondence immediately. She prepared her own replies, and they were always clear and concise.

She was especially kind to me when we undertook a comprehensive overhaul of the Rules of Court. As a former Supreme Court advocate, she had a keen professional appreciation for the importance of the Rules, and she fully supported measures that modernized them and made them easier to read and understand.

Justice Ginsburg and Justice Scalia were friends, and they shared several characteristics. Both had a passion for the law and adhered to their beliefs, regardless of the consequences. In addition, they both liked people and were very kind to the Court staff.

Justice Ginsburg was a lovely woman who was dedicated to her family, the law, and our nation. She was one of a kind and will be remembered as a champion. 

Diversity & Inclusion

Why Hiring a Law Clerk Should Be Like Hiring an NFL Head Coach

By Matthew C. Enriquez

Matthew C. Enriquez is a litigation associate in the Financial Markets Practice at Jones Day and is a member of the FBA’s Diversity & Inclusion Committee and the Minnesota Chapter of the FBA. He served as a judicial law clerk for Hon. Donovan W. Frank (D. Minn.) and Hon. John Rodenberg (Minn. Ct. App.). He earned his law degree from the University of Iowa College of Law. ©2020 Matthew C. Enriquez. All rights reserved.

The federal judiciary should run more like the National Football League (NFL).

Okay, I will grant you that is an overly general statement. But there is one NFL practice that federal judges should consider borrowing: a dedication to interviewing at least one woman and candidate of color for each open position. Specifically, federal judges should commit to interviewing at least one candidate from a traditionally underrepresented demographic for each open judicial clerkship.1 A similar rule has been in place in the NFL since 2003, in law firms since 2017, and in corporate legal departments since 2019. With many federal judges devoting considerable time and energy to promoting diversity in the legal profession, I respectfully submit that now is the time for judges to collectively formalize their commitments to diversifying the federal bar. One of the best ways to do this is through law-clerk hiring.

The Rooney Rule The NFL implemented the Rooney Rule in 2003.

Named for Dan Rooney, former chair of the NFL’s Pittsburgh Steelers and the NFL’s diversity committee, the rule requires NFL teams hiring head coaches to interview at least one candidate for the position who is a racial or ethnic minority. In 2009, the NFL expanded the rule to cover the hiring process for general managers and equivalent front-office staff positions.

The policy deems that any inconsistent behavior will be treated as detrimental conduct under the NFL constitution and bylaws, subjecting the violating franchise to league discipline.

The NFL’s Rooney Rule has had mixed results, increasing the numbers of minority head coaches and assistant coaches but not achieving the same increase for team staff as a whole.2

The Mansfield Rule™ Diversity Lab’s Mansfield Rule™ is an even better model.

Inspired by the NFL’s Rooney Rule, the Mansfield Rule™ is named after the first woman admitted to the practice of law in the United States, Arabella Mansfield.3 Law firms and legal departments commit to participate in

the program, which measures whether the organization has considered attorneys from historically underrepresented groups for a variety of positions, including leadership roles and equity partner promotions.4 Law firms and legal departments agree that a minimum percentage of their candidate pool will be attorneys from historically underrepresented groups. In version 4.0 of the Mansfield Rule™, participating law firms commit to a candidate pool with at least 30 percent attorneys from historically underrepresented groups; for corporate legal departments, the number is 50 percent.

In 2017, 44 law firms piloted the project. Now, despite a global pandemic and economic downturn, 117 law firms have committed to the Mansfield Rule™ 4.0.5 Diversity Lab has evaluated each version of the rule.

The results—too detailed to outline here, but worth reviewing—are impressive.6 Notably, over three-quarters of participating law firms have reported that their equity partner promotion pools were more diverse.7

The Value of Judicial Clerkships in the Current Climate A judicial clerkship—particularly a federal one—is oftentimes a golden ticket for a newer attorney. Without a doubt, a clerkship offers a newer lawyer the chance to improve writing skills, refine critical thinking skills, and create an invaluable mentoring relationship.

But from a purely résumé-enhancing perspective, a clerkship also bestows upon a newer attorney a stamp of approval that opens doors to opportunities at prestigious law firms and government agencies and in academia. Consequently, it is critical that attorneys from diverse backgrounds have opportunities to clerk.

This is true as ever now. In the January/February Diversity and Inclusion column, Lisa Kpor, Katherine Earle Yanes, and Tara Norgard noted that our “profession remains one of the least diverse professions in the nation.”8 Despite notable advancements in terms of representation, the legal profession continues to lag behind when it comes to the percentage of women attorneys, Black attorneys, Latino attorneys, LGBTQIA+ attorneys, and attorneys with disabilities advancing and becoming partners in law firms.9 November/December 2020 • THE FEDERAL LAWYER • 15

Making matters worse, it is widely expected that the global economy is approaching another recession, spurred at least in part by the novel coronavirus pandemic. Economic recessions have been disastrous for historically underrepresented associates at law firms.

For example, the layoffs and pay cuts during the Great Recession disproportionately affected women and Black associates.10 Numerous commentators have noted that the total number of Black associates at law firms only recently returned to pre-Great Recession levels. The number of Black women associates has not recovered.11 These conditions make judicial clerkships all the more valuable now. To be sure, the hiring of judicial clerks from traditionally underrepresented demographics will not fix these problems or even guard against them. But it’s also undeniable that a judicial clerkship opens doors and provides a valuable foundation for an attorney’s practice.

Federal judges hire around 1,200 law school graduates as judicial clerks each year.12 Some hire attorneys with work experience. This is not an insignificant number of attorneys. This experiment will be worth it if the ranks of judicial clerks are diversified even a little by judges committing to the Judicial Rule.

Opportunities and Challenges of Creating a Judicial Application of the Rule Federal courts and judges have already advanced bold and thoughtful practices for creating a diverse, inclusive, and welcoming justice system.

Numerous judges have made public statements in support of promoting diversity in federal practice and within the federal judicial clerk ranks. For example, Hon. James Donato of the Northern District of California recently denied a petition to appoint class counsel because of “concern[s] about a lack of diversity in the proposed lead counsel.”13 Regarding law clerks specifically, at a 2014 symposium at Marquette Law School, Hon. James Wynn Jr. of the Fourth Circuit noted that he “take[s] diversity very seriously” in law-clerk hiring.14 In her congressional hearing, nominee for the Southern District of California Shireen Matthews testified that “her clerkship ‘changed the trajectory’ of her career and that she would focus on making sure her clerks were from diverse backgrounds.”15 Nevertheless, there are obvious challenges to creating an effective version of the Judicial Rule. One challenge is the same as that advanced by opponents of higher education institutions with affirmative-action plans: the notion that certain institutions must operate as a meritocracy. (Query whether any higher education institutions actually admit students based strictly on merit.) Right or wrong, in law clerk hiring, having strong grades from a top tier law school most oftentimes conveys merit. There is nothing wrong with judges wanting to hire clerks who have demonstrated intellectual rigor and strong critical-thinking skills.

Relatedly, some judges prefer candidates who have particular academic backgrounds, whether in undergraduate or law school. Some judges prefer candidates with ties to the area where their courts are located. Other judges prefer candidates who play the saxophone, were student-athletes, or moonlight as stand-up comics. Taking any combination of these factors, the point is that judges understandably want to hire clerks who have a sincere interest in clerking for them and with whom they feel they can work in close proximity for a year or more. Some folks don’t think one of those factors should be a candidate’s membership in a historically underrepresented demographic.

16 • THE FEDERAL LAWYER • November/December 2020

Another challenge is the efficacy of this sort of practice. As mentioned before, the Rooney Rule has had mixed results. Despite its popularity, the Mansfield Rule™ is merely voluntary, and, as noted above, the legal profession remains one of the least diverse professions in the nation. In a published study of these practices, the authors concluded that a candidate pool must have more than one woman in it to have a statistically significant chance that a woman will be hired for the position.16 These are real challenges. But they are one side of the coin; opportunity is the other. For the merit-based challenge, even taking all of those criteria into account, there will still be more than enough qualified and sincerely interested candidates for most judges. Judges following the Judicial Rule can therefore help dispel the myth that an affirmative-action type program somehow promotes underqualified candidates. For the efficacy challenge, increased judicial-clerk diversity is not the only measurement of success. Instead, federal judges committing to the Judicial Rule create valuable awareness, conversation, and credibility around the need to diversify the legal profession.

These opportunities are enough to warrant a trial run of the Judicial Rule. And that trial run should be something that fans and foes of NFL can get behind. 

Endnotes For convenience, I will refer to this proposal as the “Judicial Rule” for the remainder of this column.

2 Allyson Corbo and Rachel Gaddes, Strategies to Increase Diversity in the Civilian Sector: Applications and Effectiveness of the Rooney Rule and Similar Approaches, Insight Policy Research ( June 7, 2017), https://dacowits.defense.gov/Portals/48/Documents/General%20 Documents/RFI%20Docs/June2017/Insight%20RFI%204. pdf?ver=2017-06-07-221647-040.

3 Diversity Lab, Inc., Hackathons, https://www.diversitylab.com/ hackathons/ (last visited Nov. 16, 2020).

4 Diversity Lab, Inc., Mansfield Rule 3.0 Certified Firms, https://www. diversitylab.com/pilot-projects/mansfield-rule-3-0/ (last visited Nov. 16, 2020) 5 Diversity Lab, Inc., Mansfield Rule 4.0, https://www.diversitylab. com/mansfield-rule-4-0/(last visited Nov. 16, 2020) 6 Id. 7 Id. 8 Lisa Kpor, Katherine Earle Yanes, and Tara Norgard, Diversity & Inclusion: An Imperative for the FBA, The Federal Lawyer, Jan./Feb. 2020 at 9, https://www.fedbar.org/blog/magazine/janfeb-2020/.

9 Id. 10 Meghan Tribe and Stephanie Russell-Kraft, Virus Crisis Could Be Big Test of Law Firms’ Diversity Efforts, Bloomberg Law, (Apr. 27, 2020), https://news.bloomberglaw.com/us-law-week/virus-crisiscould-be-big-test-of-law-firms-diversity-efforts.

11 National Association for Law Placement, Inc., 2019 Report on Diversity in U.S. Law Firms, at 1 (Dec. 2019), https://www.nalp.org/ uploads/2019_DiversityReport.pdf.

12 Derek T. Muller, Federal Judicial Clerkship Report of Recent Law School Graduates 2020 edition, at 12 ( June 9, 2020), https://papers. ssrn.com/sol3/papers.cfm?abstract_id=3203644&download=yes.

13 In re Robinhood Outage Litig., Case No. 20-cv-01626-JD (N.D. Cal. July 14, 2020), https://www.law360.com/articles/1292150/ continued on page 19 1

Focus on Immigration

FLRA’S Regional Director Dismisses DOJ’s Petition to Decertify the Immigration Judge’s Union1

By Judge Dorothy Harbeck and Judge Amiena Khan2

Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the National Association of Immigration Judges (NAIJ). She is also an adjunct professor of law at Columbia and Rutgers. She is a fellow of the FBA, is on the executive board of the FBA Immigration Law Section, and is a member of the bar in New Jersey and New York. Judge Amiena Khan is the executive vice president of the NAIJ and serves as the co-chair of the NAIJ Vulnerable Populations Committee.

Judge Khan was appointed by Attorney General Eric Holder in December 2010. She is seated at the New York Immigration Court and is a member of the New York State Bar. Judge Khan is the programs chair of the FBA Immigration Law Section and is also a member of the National Association of Women Judges.

Immigration judges maintain the right to stay unionized and to collectively bargain. The U.S. Department of Justice (DOJ) and the Executive Office for Immigration Review’s (EOIR’s) attempt to decertify the National Association of Immigration Judges (NAIJ) was unsuccessful. This most recent attempt by the DOJ and EOIR (“the Agency”) to decertify the NAIJ, the union representing the nation’s 471 immigration judges (IJs), was rejected by the U.S. Federal Labor Relations Authority (FLRA)—the agency charged with protecting workplace rights of federal employees.3 After a factual hearing, Washington D.C., Regional Director (RD) Jessica S Bartlett found no merit in DOJ’s claim that IJs are managers who should be denied the right to form a union and bargain collectively with their employer. RD Bartlett’s comprehensive decision conclusively held that the IJs “are not management officials within the meaning of section 7103(a)(11) of the Statute,” and she dismissed the Agency’s 2020 petition for NAIJ’s union decertification.4 As a threshold, RD Bartlett held that the regulatory change to the level of BIA deference to IJ factual findings represents a significant change since the FLRA’s 2000 decision that allowed the present action to be brought. She did comment, however, that the day-to-day duties of the IJs remain largely unchanged.5 She specifically noted that “mere increases in volume of the same type of work do not serve as a basis for establishing the necessary substantial changes.6 A union bargaining unit is not appropriate if it includes management officials. To be a management official, a person must be formulating policy or actively participating in the ultimate determination of policy.7 Since the IJs were found by the FLRA in 2000 to not be management officials, and since the subsequent changes to the work of IJs do not undermine the validity of this determination, RD Bartlett opined that IJs are not management officials.8In so ruling, she commented that the independent judgment exercised by an individual formulating, determining, or influencing agency policies is critical in establishing whether that

person is a management official.9 For example, having recommendations generally accepted by superiors does not, on its own, rise to the level of “influential” within the meaning of the statute; there must be some exercise of additional authority, such as “the authority to bind the agency or … to commit agency funds.”10 Another factor in determining whether an employee is a management official is whether that individual’s work is subject to higher level review and/or approval within an agency.11 RD Bartlett explained that “EOIR consists of a Director, a Chief Administrative Hearing Officer, a cadre of Assistant Chief Judges who act as quasi-first line supervisors, an Office of Policy to review and to create policies, and the BIA. The BIA was previously found to consist of management officials. It is undisputed that IJ decisions are not routinely published and that they do not create precedent that binds other IJs or the BIA in deciding future cases. Moreover, the vast majority of IJ decisions continue to be subject to review by the BIA, and this factor supports the conclusion that the IJs are not managers.”12 She noted that the BIA still retains appellate oversight of IJ decisions. She also explained that the creation and elimination of the ability of IJs to administratively close cases is another example of how EOIR treats IJs as non-managers.13 In 1993, the FLRA concluded that the BIA members who review the IJs’ decisions are management officials.14 In 2000, the FLRA reviewed the status of the IJs and found that they were not managers.15 In that case, the FLRA upheld the RD’s rejection of the Agency’s claim “that the sheer volume of decisions issued by the Judges and the finality of their decisions, unless appealed, affect the Agency’s policy” because “the fact remains that when an Immigration Judge issues a decision[,] he or she is applying and following established Agency law and policy.”16 The IJs are finders of fact, and the IJs continue to make decisions based on the facts presented and in accordance with law, regulation, and precedential BIA decisions. The IJs have no authority to disregard statute or regulation, or to ignore or rewrite BIA precNovember/December 2020 • THE FEDERAL LAWYER • 17

edent.17 While the BIA has a right to overturn its prior precedent and to make new precedent, the IJs may not overturn BIA precedent or create their own precedent. That is the key factor that supported the FLRA finding that the BIA members are management officials while the IJs are not.18 RD Bartlett held that this difference has not changed since the 2000 FLRA decision, and it is the key issue upholding the conclusion that IJs do not make policy, but instead, only assist in the implementation of agency policy.19 RD Bartlett commented that this is what judges traditionally do, and that FLRA precedent does not support the conclusion that judges are excluded from statutory coverage simply because they, in a nonprecedential capacity, apply the facts before them to established law to derive a decision. Only when judges have had the ability, most often in an appellate role, to both review and establish precedent, have judges been found to be management officials excluded from the statute.20 Applying FLRA precedent, RD Bartlett concluded: “[a]s the IJs are not appellate judges, they are not excluded from the Statute based on Authority precedent because unlike the BIA, they do not issue precedential decisions. Indeed, the fact that the Authority previously reviewed these very Judges and their work, and concluded that they are not management officials carries significant weight in supporting the conclusion here that the changes established by EOIR do not, under Authority precedent, support the conclusion that the IJs are excluded from Statutory coverage as management officials.”21 RD Bartlett also analyzed the fact that judges are not included in the list of excluded groups of employees.22 There is no per se bar of all judges or adjudicators under a blanket theory that they are management officials.

Notably, EOIR’s own witnesses testified that the day-to-day duties and work of the IJs has not changed since the 2000 EOIR decision. In short, the IJs are judges who spend almost all of their time on the bench rendering decisions in the cases before them. IJ decisions apply established Agency policy to the set of facts and to the parties before them. RD Bartlett found it significant that “the Agency failed to cite specific unreviewed IJ decisions that created, influenced or shaped DOJ, EOIR policy in any way other than deciding the specific case before it.”23 She also noted that IJs have no role in creating Agency policy and specifically observed that in 2019, the Agency created an “Office of Policy,” in which no IJs have a formal role.24 There are a few very limited situations where IJ decisions are not subject to BIA review.25 In absentia decisions may not be subject to direct appeal to the BIA; however, IJs’ decisions on motions to reopen such in absentia orders of removal are reviewable by the BIA.26 Further, in both credible and reasonable fear determinations, while IJ decisions that uphold the Department of Homeland Security’s determinations are not subject to review, decisions that overturn such determinations result in the case being set for hearing, and the subsequent resulting decision from that hearing is subject to BIA review.27 RD Bartlett also noted, inter alia, that “… given the factual dissimilarities between the Administrative Law Judges in Lucia and the IJs at issue here,” a reading of the “plain text” of the Lucia decision did not support the exclusion of IJs from union as management officials.28 The RD correctly concluded “[w]here … the IJs do not draft or influence the creation of laws, regulations or policies, where their decisions are rarely printed much less systematically published, and where their decisions are not precedential, their duties do not make them management officials. Indeed, since 2000, several factors have diminished the role of IJs, including a reduction in their ability to 18 • THE FEDERAL LAWYER • November/December 2020

establish court rules. While not dispositive, it is also noteworthy that the Agency even recently started declining to send the IJs out to speak publicly, based on its assertion that the IJs are not management representatives.”29  Note: On Sept. 4, 2020, EOIR filed its petition for review of the RD’s decision. We will analyze this and the FLRA determination in an upcoming issue.

Endnotes This article is the follow-up to DOJ Tries to Silence the Voice of the Immigration Judges—Again! The Second Attempt to Decertify the National Association of Immigration Judges, The Federal Lawyer, Mar./Apr. 2020 at 9, Dorothy Harbeck and Amiena Khan.

2 The authors are the secretary/treasurer and the executive vice president respectively of NAIJ. The views expressed here do not represent the official position of DOJ, the attorney general, or EOIR. The authors’ views represent their personal opinions, which were formed after extensive consultation with the membership of the NAIJ. 3 U.S. Dept. of Justice Executive Office for Immigration Review and National Association of Immigr. Judges, IFPTE Judicial Council 2, WARP-19-0067--F.L.R.A.-- ( July 31, 2020) (The 2020 Decision).

4 Id. at pp. 2, 24. RD Bartlett’s decision was published on July 31, 2020. It is subject to review by a full FLRA panel.

5 The FLRA has held that “to show that a previously certified unit is no longer appropriate, a party must demonstrate that substantial changes have altered the scope or character of the unit since the last certification.” US Dep ‘t of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 70 F.L.R.A. 327, 238 (2017).

6 U.S. Dep't of Justice, Exec. Office of Immigration, Review Office of the Chief Immigration Judge (Petitioner/agency) & Nat’l Ass’n of Immigration Judges (Labor Org./union), 56 F.L.R.A. 616, 618 (Sept. 1, 2000).

7 2020 Decision, supra note 3, at 16 (citing Nat’l Fed’n of Fed. Emps.

Local 1442 (Union) & United States Dep’t of the Army Letterkenny Army Depot Chambersburg, Pennsylvania (Agency), 59 F.L.R.A. 849, 861–62 (Apr. 22, 2004)). See also Def. Commc’ns Agency Def. Com. Commc’ns Office, Scott Air Force Base, Illinois Activity & Nat’l Ass’n of Gov’t Emps., Local R7-23 Labor Org./petitioner, 8 F.L.R.A. 273, 274 (Mar. 26, 1982); U.S. Army Commc’ns Sys. Agency, Fort Monmouth, New Jersey Activity & Nat’l Fed’n of Fed. Emps., Local 476 Petitioner & Am. Fed’n of Gov’t Emps., AFL-CIO, Local 1904 Intervenor, 4 F.L.R.A. 627, 629 (Nov. 12, 1980).

8 2020 Decision supra note 3, at 2.

9 See, e.g., Headquarters, Space Div., Air Force Sys. Command, Dep ‘t of the Air Force, DOD, 9 F.L.R.A. 885, 887 (Aug. 6, 1982).

10 USDA, Fed. Crop Ins. Corp., Wash. Reg’l Office, 46 F.L.R.A. 1457, 1466 (Feb. 19, 1993).

11 U.S. Dep’t of Agric. Food & Nutrition Serv. Alexandria, Virginia (Agency) & Nat’l Treasury Emps. Union (Labor Org. Petitioner), 34 F.L.R.A. 143, 147 ( Jan. 5, 1990).

12 Id. at 147.

13 2020 Decision, supra note 3, at 4.

14 U.S. Department of Justice, Board of Immigration Appeals and Am. Fed’n of Gov’t Emps., Local 3525, 47 F.L.R.A. 505 (Apr. 30, 1993).

15 U.S. Dep’t of Justice, Exec. Office for Immigration Review, Office of the Chief Immigration Judge and Nat’l Ass’n of Immigration Judges, 56 F.L.R.A. 616 (Sept. 1, 2000).

16 Id. at 618 (internal citations omitted).

17 To the contrary, 8 C.F.R. § 1003.10(b) notes that the IJs, when 1

deciding individual cases before them, are subject to the applicable governing standards, that they exercise independent judgment and discretion, and that they may take any action consistent with their authorities under the Immigration and Nationality Act to decide their cases. In many respects, it is these constraints that define the IJs as judges and not managers.

18 U.S. Dep't of Justice Bd. of Immigration Appeals (Activity) & Am. Fed’n of Gov’t Emps. Local 3525 (Labor Org./petitioner), 47 F.L.R.A. 505 (Apr. 30, 1993).

19 United States Air Force Eglin Air Force Base Eglin Air Force Base, Fla. Activity/petitioner & Nat’l Fed’n of Fed. Emps., Local 1940 Labor Org., 10 F.L.R.A. 402, 403–04 (Oct. 22, 1982); U.S. Dep’t of Def., Def. Logistics Agency, Def. Contract Mgmt. Command, Def. Contract Mgmt.

Dist. N. Cent. (Activity) & Am. Fed’n of Gov’t Emps., Local 2265 (Labor Org./peititioner), 48 F.L.R.A. 285, 290 (Aug. 18, 1993).

20 BIA, supra note 14, at 509-10.

21 2020 Decision, supra note 5, at 20.

This supports the conclusion that Congress intended them to [be] eligible for inclusion in bargaining units. The FLRA’s upholding the validity of units of judges at the USDA, the EEOC, the NLRB, the MSPB, and previously at the Petitioner, further supports the conclusion that the statute does not establish any per se preclusion.

23 2020 Decision, supra note 3, at 23.

24 2020 Decision, supra note 3, at 5.

25 While not specifically noted by the RD in the 2020 Decision, these cases do remain subject to review by the Director of EOIR. See, generally, Matter of Bay Area Legal Services, 27 I&N Dec. 837, 845 (DIR 2020).

26 2020 Decision slip op. at 9.

27 2020 Decision slip op. at 10.

28 2020 Decision slip op. at 23, citing Lucia v. Securities Exchange Commission, 138 S. Ct. 2044 (2018) 29 2020 Decision slip op. at 23.

22

At Sidebar continued from page 10

custody of the records from the Court of Appeals in Cases of Capture to the U.S. Supreme Court).

43 The Revolutionary War Prize Cases: A Record of the Court of Appeals in Cases of Capture, 1776-1787, microformed on M162 (Nat’l Archives). On 15 rolls of microfilm publication are reproduced the records of prize cases heard on appeal from Colonial and state courts by committees of the Continental Congress (1776-80) and by the Court of Appeals in Cases of Capture (1780-86).

44 67 U.S. (2 Black) 635, 17 L. Ed. 459, 1862 U.S. LEXIS 282 (1863).

The full name of the case was: The Brig Amy Warwick; The Schooner Crenshaw; The Barque Hiawatha; and the Schooner Brillante.

45 A historical court of the barons (to wit, a manorial court) in England, Ireland, and Wales (late 13th to late 20th century).

46 Colebrooke v. Elliott (1765) 3 Burr. Part IV., at 1863.

47 Sir Winston Churchill, Speech to the House of Commons in tribute to Neville Chamberlain (Nov. 12, 1940).

48 20 Best Marcus Tullius Cicero Quotes, Magazine 365 ( July 6, 2016), https://magazine365.wordpress.com/2016/07/06/cicero-quotes-20best-marcus-tullius-cicero-quotes/.

National Spotlight continued from page 13

immediate release and to revoke detention order, based in part on the defendants’ dangerousness and the “appropriate measures” and “monitoring practices” the facility has executed to protect detainees from contracting the virus).

20 Melissa Healy, “Everyone Infected with the Coronavirus is a Silent Spreader for At Least a While,” Los Angeles Times (Apr. 16, 2020), https://www.latimes.com/science/story/2020-04-16/ eve‌r ‌y‌o‌ne-with-the-coronavirus-is-silent-spreader. When a state prison at Marion, Ohio, recently mass tested its prisoners for

COVID-19, 80% tested positive, and 95% of those who tested positive had been asymptomatic; results were reported to be similar among prisoners mass tested in Arkansas, North Carolina, and Virginia. Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus – 96% Without Symptoms, Reuters (Apr. 25, 2020), https://www.reuters.com/article/ushealth-coronavirus-prisons-testing-in/in-four-u-s-state-prisonsnearly-3300-inmates-test-positive-for-coronavirus-96-withoutsymptoms-idUSKCN2270RX.

Diversity & Inclusion continued from page 16

attachments/0.

David R. Stras, Diane S. Sykes, and James A. Wynn Jr., Panel Discussion: Judges’ Perspectives on Law Clerk Hiring, Utilization, and Influence, 98 Marq. L. Rev. 441 (2014), https://scholarship.law. marquette.edu/cgi/viewcontent.cgi?article=5228&context=mulr.

15 Nadia Dreid, Republican Sens. Press Judicial Picks on LGBTQ Ruling, Law360 ( June 17, 2020), https://www.law360.com/articles/1279708/ republican-sens-press-judicial-picks-on-lgbtq-ruling.

16 Stephanie K. Johnson, David R. Hekman, and Elsa T. Chan, If there’s only one woman in your candidate pool, there’s statistically no chance she’ll be hired, Harvard Business Review (Apr. 26, 2016), https:// hbr.org/2016/04/if-theresonly-one-woman-in-your-candidate-pooltheres-statistically-no-chance-shell-be-hired.

14

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.

November/December 2020 • THE FEDERAL LAWYER • 19

In-House Insight

OSHA in the Time of COVID-19: A Call for Enforceable Standards for the Sake of Employees and Employers

By Michael J. Cahalane, Esq.; Kyle E. Bjornlund, Esq.; and Xavier Q. Lawrence, Esq.

Michael J. Cahalane and Kyle E. Bjornlund are partners and Xavier Q. Lawrence is an associate at Cetrulo LLP in Boston. They concentrate their practices in products liability, premises liability, toxic tort, and pharmaceutical litigations in courts throughout New England.

The authors jointly teach a graduate level course in occupational law and regulations. Cahalane is a vice chair for the FBA’s Corporate and Association Counsel Division. ©2020 Michael J. Cahalane, Kyle E. Bjornlund, and Xavier Q. Lawrence. All rights reserved.

Through the spring and summer of 2020, following the outbreak of COVID-19, the Occupational Safety and Health Administration (OSHA) published guidelines and other directions for employer operations during the crisis. OSHA provided and revised robust guidance to employers for navigating their obligations during the pandemic and for ensuring workplace safety. These guidelines looked to ensure clean work environments and to minimize the risk of contraction through the encouragement of social distancing, the provision of personal protective equipment (PPE), and more. This guidance was voluntary, though, and accompanied enforcement memoranda merely interpreting existing statutes and declaring OSHA policies.1 At the same time, OSHA declined to create either a permanent standard or an Emergency Temporary Standard (ETS) for workplace safety related to the coronavirus, both of which would have granted it the ability to enforce its policies and inform employers of their obligations. In its “Guidance on Preparing Workplaces for COVID-19,” OSHA even warns that, “[t]his guidance is not a standard or regulation, and it creates no new legal obligations.”2 Other agencies made similar temporary changes to their policies and enforcement standards, such as the U.S. Equal Employment Opportunity Commission’s (EEOC’s) temporary allowance of employers to take their employees’ temperatures, an act previously barred as a medical exam.3 Since the virus first began to spread in the United States, OSHA has faced criticism for its decision not to introduce new standards and for its broader failure to provide for employers and employees during the crisis. Observers noted that, as late as June 2020, three months after the president declared a national emergency, OSHA had received over 4,000 complaints related to the virus and issued only one citation.4 On the employee side, criticism may have been expressed most pointedly through an American Federation of Labor and Congress of Industrial Organization (AFLCIO) suit against the agency based in part on OSHA’s

20 • THE FEDERAL LAWYER • November/December 2020

refusal to issue an ETS related to COVID-19 and on the grounds that guidelines alone offered inadequate worker protections against the virus.5 The U.S. Court of Appeals for the District of Columbia Circuit ultimately rejected the lawsuit, noting that it was OSHA’s decision whether or not to issue an ETS, but the action echoed broader criticism of OSHA’s approach to the pandemic.

While the AFL-CIO suit was filed to protect employee rights, the introduction of new and enforceable standards could potentially still be of benefit to employers as a source of clarity regarding their duties as they face new sources of liability, both from the COVID-19 pandemic and as industries restructure to move forward following the country’s closure and partial reopening. Though OSHA had issued a single citation as of June, employers have been discovering that the pandemic still created significant potential and frequently realized liability for businesses even in the agency’s absence.6 OSHA’s establishment of authoritative standards would better enable these employers to resume operations with more focus on safe operations and efficiency and less on the minutiae of costly overcompliance and avoidance of litigation.

Guidance Through Enforcement OSHA wrote of itself that, “[w]ith the Occupational Safety and Health Act of 1970, Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthful working conditions for working men and women by setting and enforcing standards.”7 OSHA has since introduced new standards to evolve with the employment context it governs. Creating and enforcing such standards must continue to be ongoing processes for the agency to remain responsive to emergent challenges. In the absence of specific COVID-19 standards, any OSHA-related enforcement action against an employer would have to be based on other existing standards or under the Act’s catch-all General Duty Clause.

The Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. It grants OSHA flexibility in ensuring employee protection but does little to narrow the corresponding expectations of employers, even with the limited benefit of non-enforceable guidelines and interpretations.8 The resulting gap in specific enforceability is one of certainty and understanding, not liability. For employers struggling to adjust to the still developing “new normal,” OSHA’s establishment of a baseline for what constitutes an adequate response to the crisis, even in retrospect; a safe reopening; or an effective plan for future prevention would allow employers to more efficiently allocate resources to promoting safety, and to operate with greater confidence about where and how they may be subject to legal risk.

There is no guarantee that a seemingly unenforceable and potentially overambitious early guideline will not be treated as a standard, should a claim result in litigation and go to trial. At the same time, there is similarly no guarantee that compliance with such a guideline will be enough to allow an employer to avoid liability. OSHA needs to adapt the Act to the crisis. States began to recognize this formally back in June, beginning with Virginia’s decision to draft and pass its own temporary emergency standard for COVID-19, citing OSHA’s silence.9

The Wrong Tools for the Job OSHA’s new guidelines and directives are helpful but introduce potentially costly new employer considerations without providing controlling standards. Even at the state level, OSHA’s specific standards are useful for establishing the “floor” for safety and health by ensuring some predictability and uniformity across potentially conflicting state rules. At the federal level, OSHA standards on COVID-19 would clarify what employers owe and what employees deserve.

Many of the workplace-related problems that COVID-19 has introduced fall outside the range of what OSHA’s current standards cover. One example of the existing regulatory limits is the challenge of trying to shape current standards for influenza prevention and safety to address COVID-19, a threat of a vastly different level. The two illnesses were frequently compared before COVID-19 peaked, and the former long remained a reference point for discussing and responding to the latter. Despite that practice, there are several key differences between the illnesses that have made it difficult to address COVID-19 and enforce guidance on the basis of existing standards.

First, unlike COVID-19, both influenza and the common cold are, under 29 C.F.R. § 1904.5(b)(2), exempt from injury and illness recording and reporting requirements otherwise imposed by 29 C.F.R. § 1904.5, which generally require reporting in certain circumstances.10 Absent a 29 C.F.R. § 1904.5(b)(2) exemption, qualifying injuries and death need to be reported so long as they are work-related.11 In contrast to influenza, COVID-19 remains nominally covered as a nonexempt illness, immediately limiting the value of influenza prevention rules. Yet OSHA only added to the exceptionalism of COVID-19 by exercising discretion in enforcing those recording requirements, albeit not through the introduction of full standards.

On April 10, 2020, it relaxed otherwise applicable recordkeeping requirements of its regulations to recognize the difficulty of determining work-relatedness, stating that it would not enforce the reporting requirement of § 1904.5 without objective evidence of work-relatedness that was reasonably available to the employer, with the stated purpose of allowing employers to focus on ensuring good

hygiene practices.12 OSHA followed this on May 19, 2020, reinforcing and clarifying its April statement and detailing criteria for its appraisal of employers’ efforts to evaluate whether an employer has made sufficient effort to determine whether a worker’s contraction of the virus was work-related.13 The AFL-CIO ultimately filed its suit on the grounds that relaxing requirements did not serve the purpose of protecting workers and that OSHA was thus obliged to issue a temporary standard.

Not only has OSHA already distinguished between COVID-19 and influenza for purposes of enforcement, but the former represents a much greater health and liability risk, further challenging the adequacy of current enforcement tools and supporting the suggestion that the virus warrants temporary or permanent standards both to protect employees and to guide their employers through the corresponding risks. The CDC estimates that, in the United States, there were 39 million to 56 million influenza illnesses and 24,000 to 62,000 influenza deaths between October 1, 2019, and April 4, 2020.14 According to Johns Hopkins, while there were only 5.8 million confirmed cases of COVID-19 by August 27, 2020, there were already 180,249 recorded deaths.15The two illnesses represent dramatically different kinds and levels of threats, and OSHA cannot reasonably expect to cover both with the same or similar enforcement tools.

This problem extends to other existing OSHA standards as well.

The challenge of addressing COVID-19 using existing tools, such as those available for illnesses such as influenza, illustrates the inadequacy of current standards. Specificity would obviously benefit employees but employers stand to gain as well. Clarity in recording and reporting obligations would help to relieve the costs of record creation and retention, as well as of investigation of prior incidents for work-relatedness and insurance that they were handled properly.

Furthermore, even as the country adjusts or relaxes its quarantine practices over time, any case of contraction that can potentially point back to one’s employer represents potential significant liability.

Liability in Ambiguity Determining the extent of potential liability in the absence of standards will continue to be difficult, given the spread and continued lethality of the virus. As early as March and April 2020, employers had started to face potential liability and very definite lawsuits, despite their apparent efforts to balance continuation of operations with providing adequate support and protection for their employees. Conflicting state-level efforts to manage liability, such as the presumption of Kentucky and Illinois that essential workers caught the illness through their work, ultimately blocked by a temporary restraining order on April 28, 2020, only add to employer confusion and cost.16 One of the earliest suits to draw attention was a negligence and wrongful death suit filed in Cook County Circuit Court in Illinois against Wal-Mart by the family of an employee who died of COVID-19.17 In the complaint, the plaintiff alleges that multiple employees exhibited signs and symptoms of COVID-19, that the decedent and other employees contracted the illness at Wal-Mart, and that the company failed to adequately protect its employees against said contraction, specifically citing OSHA’s “Guidance on Preparing Workplaces for COVID-19.”18 Another early case was filed against Smithfield Foods by its plant workers, in the U.S. District Court for the Western District of Missouri.19 The workers alleged that Smithfield provided them November/December 2020 • THE FEDERAL LAWYER • 21

with inadequate protective equipment, that the business practiced inadequate social distancing, that workers did not have opportunities to wash their hands, that workers were discouraged from taking sick leave, that there was no plan for testing employees, and that workers were incentivized with bonuses to work while sick. Despite these allegations, Smithfield denied awareness of any confirmed diagnoses and asserted that it was following OSHA requirements and CDC guidance. The court ultimately granted Smithfield’s motion to dismiss, albeit pursuant chiefly to the primary-jurisdiction doctrine, to allow OSHA “to consider the issues raised by this case.”20 Compliance is difficult without enforceable, explicit guidance to direct conduct. In its absence, cases such as those against Wal-Mart, Smithfield, and other employers will continue to burden already taxed courts and test businesses’ ability to adhere to conflicting sources of standards and accurately predict expectations.

Uncertain Future How best to balance the sometimes-competing priorities of worker protection with employer enablement has already become a divisive issue. Finding that equilibrium has led to debate over matters such as whether the law should provide businesses with immunity before or after introducing enforceable workplace standards.21 By the summer of 2020, eight states had passed laws granting certain businesses some degree of protection against civil suits for claims related to COVID-19, and several more were advancing comparable bills or had signed executive orders to similar effect.22 While immunity would best shield employers against civil liability, even standards alone would offer businesses greater certainty as to their obligations going forward. Notwithstanding, the fact that parties remain divided on the question of how the country needs to approach the legal fallout from the virus suggests that employers may have to face yet more uncertainty in understanding their duties as political platforms shift and different candidates take office.

At the presidential level, Former Vice President Biden has already advocated for harsher, specifically enforceable standards. He noted as well that said standards should not be limited in applicability to healthcare providers.23 In contrast, albeit with similar advocacy for substantive change, President Trump claimed in April that he wanted to “take liability away from these companies” in order to facilitate their opening.24 While Trump’s statement focuses on limiting liability, neither candidate has suggested that the government should be silent on or soft in addressing the current ambiguity. Addressing it through full permanent or even temporary standards will provide employers with the greatest stability as they continue to normalize operations and political platforms provoke changes in guidelines and interpretation. Constantly updating guidance is, beyond being unenforceable, unstable.

The Devil You Know Currently, even months after the pandemic’s height, businesses face a daunting task in attempting to reopen and resume operations not just safely but profitably. That task has been complicated significantly by the overabundance of liability left in the absence of enforceable and broadly applicable OSHA health and safety standards, to which employers should be able to ensure they adhere in operating their businesses.

While mandating future crisis plans or requiring other proactive steps from businesses may introduce costs for employers, it will also 22 • THE FEDERAL LAWYER • November/December 2020

make explicit what it is these companies need to do to limit their liability as the country continues to recover from the pandemic.

Cautious overcompliance is likely to manifest less as excess benefit to employees and more as expensive but potentially unimpactful concern for uncertain regulations and still shifting guidance. OSHA should do employees and employers a favor and implement clear and enforceable COVID-19 standards. 

Endnotes Occupational Safety & Health Administration, Enforcement Memos, https://www.osha.gov/enforcementmemos (last visited June 24, 2020).

2 Occupational Safety & Health Administration, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/ Publications/OSHA3990.pdf (last visited June 24, 2020).

3 Jennifer Carsen, Walmart Sued in Illinois Court Over Employee’s COVID-19 Death (April 14, 2020), https://www.hrdive.com/ news/walmart-sued-illinois-court-employees-death-fromcoronavirus/575895/.

4 Eli Rosenberg, Virginia Poised to Create First Pandemic Workplace Safety Mandates in Nation, as Trump Labor Agency Sits on Sidelines, The Washington Post ( June 24, 2020), https://www. washingtonpost.com/business/2020/06/24/virginia-safety-rulescovid/ (last visited June 24, 2020).

5 Petition for Writ of Mandamus & Request for Expedited Briefing & Disposition, In re: Am. Fed’n of Labor and Cong. of Indus. Org., No. 19-1158 (D.C. Cir. May 18, 2020).

6 Eli Rosenberg, Virginia Poised to Create First Pandemic Workplace Safety Mandates in Nation, as Trump Labor Agency Sits on Sidelines, The Washington Post ( June 24, 2020), https://www. washingtonpost.com/business/2020/06/24/virginia-safety-rulescovid/.

7 Occupational Safety & Health Administration, About OSHA, https://www.osha.gov/aboutosha (last visited June 24, 2020).

8 29 U.S.C. § 654.

9 Eli Rosenberg, Virginia Poised to Create First Pandemic Workplace Safety Mandates in Nation, as Trump Labor Agency Sits on Sidelines, The Washington Post ( June 24, 2020), https://www.washingtonpost. com/business/2020/06/24/virginia-safety-rules-covid/, About OSHA, supra note 7.

10 29 C.F.R. § 1904.5(b)(2).

11 29 C.F.R. § 1904.5.

12 Occupational Safety & Health Administration, Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (Apr. 10, 2020), https://www.osha.gov/memos/2020-04-10/enforcementguidance-recording-cases-coronavirus-disease-2019-covid-19.

13 Occupational Safety & Health Administration, Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (May 19, 2020), https://www.osha.gov/memos/2020-05-19/revisedenforcement-guidance-recording-cases-coronavirus-disease-2019covid-19.

14 Centers for Disease Control and Prevention, 2019-2020 U.S. Flu Season: Preliminary Burden Estimates (Apr. 17, 2020), https://www. cdc.gov/flu/about/burden/preliminary-in-season-estimates.htm.

15 Johns Hopkins University & Medicine, COVID-19 Dashboard ( June 24, 2020), https://coronavirus.jhu.edu/map.html.

16 Paul Davidson & Nicholas Wu, Workers Face ‘Uphill Battle’ Proving Firms Liable if They Catch COVID-19 as Economy Reopens, 1

USA Today (Apr. 28, 2020), https://www.usatoday.com/story/ money/2020/04/28/coronavirus-can-you-sue-if-you-get-covid-19work/3035422001/.

17 Complaint, Evans v. Walmart, Inc., No. 2020L003938 (Ill. Cir. Ct. Apr. 6, 2020).

18 Id. 19 Rural Cmty. Workers All. et al. v. Smithfield Foods Inc. et al., 5:20-cv06063 (W.D. Mo.).

20 Rural Cmty. Workers All. v. Smithfield Foods, Inc., 459 F. Supp. 3d 1228, 1240 (W.D. Mo. 2020) (“Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making. … The doctrine allows a district court to refer a matter to the appropriate administrative agency for ruling in the first instance, even when the matter is initially cognizable by the district court.”) (quoting Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605, 608 (8th Cir. 1998)).

21 Y. Peter Kang, Sens. Say Safety Regs Must Precede COVID-19 Biz Immunity, Law360 (May 12, 2020), https://www.law360.com/ articles/1272303/sens-say-safety-regs-must-precede-covid-19-bizimmunity.

22 John Kruzel, States, Companies Set up Their Own COVID-19 Legal Shields (May 22, 2020), https://thehill.com/regulation/courtbattles/499072-states-companies-set-up-their-own-covid-19-legalshields; Jim Sams, Four States Pass Laws Giving Businesses Immunity from COVID-19 Claims ( June 1, 2020), https://www.claimsjournal.

com/news/national/2020/06/01/297332.html; Michael Tilley, Executive Orders to Provide Liability Immunity for Businesses during COVID-19 Pandemic ( June 15, 2020), https://talkbusiness. net/2020/06/executive-orders-to-provide-liability-immunity-forbusinesses-during-covid-19-pandemic/.

23 Victoria Knight, Biden Says OSHA Isn’t Doing Enough To Protect Workers’ From COVID-19, Kaiser Health News (Apr. 23, 2020), https://khn.org/news/biden-says-osha-isnt-doing-enough-toprotect-workers-from-covid-19/.

24 Paul Davidson & Nicholas Wu, Workers Face ‘Uphill Battle’ Proving Firms Liable if They Catch COVID-19 as Economy Reopens, USA Today (Apr. 28, 2020), https://www.usatoday.com/story/ money/2020/04/28/coronavirus-can-you-sue-if-you-get-covid-19work/3035422001/.

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November/December 2020 • THE FEDERAL LAWYER • 23

Commentary

Words Matter, Perhaps Especially Ours as Lawyers

By Rupa G. Singh

Rupa G. Singh is a certified appellate specialist who handles complex civil appeals and critical motions in state and federal court at Niddrie Addams Fuller Singh LLP, an appellate boutique.

She is founding president of the San Diego Appellate Inn of Court, former chair of the County Bar’s Appellate Practice Section, and a self-proclaimed word enthusiast.

All opinions expressed herein are those of the writer alone, and do not represent the official position of the Federal Bar Association, The Federal Lawyer, or any organization with which the writer is associated. Articles and letters to the editor in response are welcome. ©2020 Rupa G. Singh. All rights reserved.

Words matter, and the right words matter most of all. In the end, they’re all that remain of us.

—John Birmingham1 My grandfather was a well-respected, reasonably successful lawyer in post-colonial India. Lawyers also seem disproportionately likely to lead nation-states, institutional reforms, and social revolutions, and transition seamlessly to politics and government. But I didn’t become a lawyer to pay homage to family tradition. Nor did I aspire to lead a movement or rise through the ranks in the public sector.

Rather, I gravitated toward the law because of how it quietly empowers words over weapons. Whether it’s determining who owns a parcel of land, what criminal act warrants life in prison, or how to award custody of children after a contentious divorce, the law represents our agreement to forsake fists, swords, and guns in favor of words to resolve the most intractable of human disputes.

Recently, though, I have been forced to think more deeply about the power of our pen as lawyers. In her thought-provoking presentation, Professor Leslie P. Culver used anthropological, legal, and academic research to explain persuasively that our implicit biases affect the words we choose in our legal advocacy, allowing us to either unconsciously reinforce or consciously exploit prevalent stereotypes.2 Wait, what? The implicit biases that decades of research shows we all harbor are somehow reflected in our oral and written advocacy? Yes, and just let me count the ways. Confirmation bias causes us to pay more attention to information that confirms our existing belief system and to disregard information that is contradictory3—for example, discounting the possibility of women perpetrating sexual harassment.

Attribution bias causes us to make more favorable assessments of behaviors by those in our “in groups” while judging those in our “out groups” by less favorable group stereotypes,4—for example, excusing analytical errors by white males as mistakes while believing the same mistakes by his Black counterpart is intellectual inferiority.5 Availability bias causes us to default to “top of mind” information, such as auto-

24 • THE FEDERAL LAWYER • November/December 2020

matically picturing a man when describing a “leader” and a woman when describing a “support person.”6 Affinity bias—the tendency to gravitate toward people who are more like ourselves in interests and background—leads us to invest more energy and resources in those in our affinity group while unintentionally leaving others out.7 Narrative bias—the “pervasive bias of stories, manners, sensitivities, and paradigms”—allows us to discuss as neutral information that dredges conflict for others8—for example, arguing based on the premise that women’s entry into the workforce is harmful to children or that the Obama presidency established that we live in a post-racial world.

As one researcher puts it, “We are mistaken if we treat law as an objective and neutral body of rules and values, and fail to recognize how white, male, middle-class experience and values dominate the legal system.”9 And it’s not just in the much-studied arena of criminal justice,10 but at every level and in every practice area of the law.11 In my field of civil litigation and appeals, for example, consider the motion to recuse an African-American district court judge to whom a case by Black plaintiffs alleging racial discrimination was assigned; according to defendants, the judge was biased because he had given a speech to Black historians and had an “intimate tie with and emotional attachment to the advancement of black civil rights.”12 In denying the defendant’s motion, the court called out its racist premise—that Black judges, unlike their white colleagues, could not be impartial in deciding a case involving parties of their own ethnic background.13 Notably, scholars argue that we cannot be, and should not strive to be, blind to issues of race, gender, age, sexual orientation, socioeconomic class, physical disability, or mental health; these issues and our unconscious reaction to them are always present.14 But, in addition to becoming aware of our biases and how they might make us act, we are also urged do the same in our words.15 Reflection on this advice leads to my next revelation: We are obligated as lawyers to choose our words in briefs and arguments based on concerns beyond our duty to credibly yet zealously advocate

for our clients. In fact, being an officer of the court requires us to be more than just truthful; we must also try to dispel bias, and, if possible, plant counter-stereotypes while pursuing our client’s interests.

How do we do this?

First, we can strive to use gender-neutral language, which rules suggest some courts to aspire to already16—for example, calling someone a firefighter, not a fireman; a police officer, not a policeman;17 a chair, not a chairman; a flight attendant, not a stewardess.18 Second, we can be precise in using terms of cultural or ethnic identity, assuming they are relevant to the discussion—for example, the terms “Hispanic,” “Spanish,” “Latino/Latina,” and “Chicano/ Chicana” are not interchangeable, but mean different things.19 Third, we can examine vocabulary specific to our area of practice for terms that seem ubiquitous but carry cultural baggage we may not mean to employ—for example, we attach different cultural meaning to “fathering” a child verses “mothering” a child, and also exclude same-sex parents when using these terms, so family law practitioners might describe “parenting” efforts when advocating for custody or visitation in a child’s best interests.20 Fourth, we can examine how to frame the issues to a tribunal.

Take a defamation case. We can choose to frame the issue around the erroneous determination that a female plaintiff is only damaged because of her heightened sensitivity or lack of thick skin, subtly naming and reinforcing the stereotype that women lack the ability to loosen up or laugh at themselves. Or consider a personal injury case.

We could plausibly note during our discussion of the facts that the plaintiff is a female construction worker or a male receptionist; even though these facts are not necessary to the issue of liability or damages, we can put a name to, and challenge, cultural stereotypes about “male” and “female” professions. As USCD cognitive scientist Lera Boroditsky has explained, “Things that are named are the ones most likely to be thought about and to be visible in our consciousness” but “what isn’t named can’t be counted . . . [or] be acted upon.”21 This brings up the question, of course, of how to balance such efforts with our duty to only include “legally significant facts,” that is, facts “a court would consider significant either in deciding that a statute or rule is applicable or in applying that statute or rule.”22 Take the debate over whether to mention a Black defendant’s race in a statement of facts when it is not relevant to applying any criminal statute or rule.23 Because its only relevance is to evoke the decision-maker’s unconscious bias, this fact seems best left out, even under the rule of “legally significant” facts. Plus, zealous advocacy does not mean unprincipled advocacy; we just need to decide which principles are important enough to uphold even as zealous advocates. Navigating this issue is a complicated question, with a disfavored yet predictable answer: it depends (on the advocate and the case).

That brings me to a final question—does this excruciating exercise in self-examination, thoughtful research, and careful advocacy really matter? Can we as individuals really battle sexism, racism, ageism, xenophobia, or homophobia with a few word choices in legal advocacy? This time the answer is not a dissatisfying “it depends,” but rather a resounding “yes.”

“Implicit biases are malleable; therefore, the implicit associations that we have formed can be gradually unlearned and replaced with new mental associations.”24 Reading about successful female leaders or merely viewing photographs of women leaders has been shown to reduce implicit gender bias.25 Biologist Dr. Mark Pagel has suggested that language is “the most powerful, dangerous and subversive trait

that natural selection has ever devised” because it allows us to “implant” our ideas other people’s minds, “rewiring” them.26 And so, I come full circle, recognizing the power of words, especially in the law. I may not have become a lawyer because of my grandfather, but I hope at least one of my children or grandchildren will also choose the law, and make striving for meaningful advocacy a family tradition, perhaps the only thing that remains of me. 

Endnotes www.azquotes.com/author/30766-John_Birmingham (last visited Nov. 16, 2020); Birmingham is a British-born Australian author of, among others, the Axis of Time trilogy.

2 Professor Leslie P. Culver, White Doors, Black Footsteps: Implicit Bias & Cultural Consciousness In Legal Writing, SDCBA Appellate Practice Section Presentation ( June 24, 2020); see also https://www. law.uci.edu/faculty/visiting/culver/ (last visited Nov. 16, 2020).

3 Kathleen Nalty, Strategies for Confronting Unconscious Bias, The Federal Lawyer, Jan./Feb. 2017, at 28.

4 Ibid.

5 For example, a 2014 study found that law firm partners who reviewed a legal memorandum with identical typographical, grammatical, and substantive errors were more likely to rate it as analytically superior when told that its author was a white male associate than a black one. (Debra Cassens Weiss, Partners in Study Gave Legal Memo a Lower Rating When Told Author Wasn’t White, ABA Journal (Apr. 21, 2014), https://www.abajournal.com/news/ article/hypothetical_legal_memo_demonstrates_unconscious_ biases).

6 Nalty, supra note 3, at 27.

7 Id. at 28 (positing that, due to the prevalence of affinity bias, the legal profession is more of a “mirrortocracy” than a meritocracy).

8 Leslie Espinoza, The LSAT: Narratives and Bias, 1 Am. U. J. Gender & L. 121, 131-35 (1993) 9 Paula Lustbader, Teach in Context: Responding to Diverse Students Helps All Students Learn, 48 J. Legal Educ. 402, 408 (1998).

10 Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016, 1018 (1988).

11 Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Cal. L. Rev. 733, 743 & fn.42 (1995) (discussing legal decisionmakers’ ingrained stereotypes); Thomas W. Joo, Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race Before and After September 11, 34 Colum Hum. Rts. L. Rev. 1, 4 (2002) (“Negative racial stereotypes are deeply ingrained in our culture and history, and thus reflected in the law and government conduct.”).

12 Penn. v. Local Union 542, Int’l Union of Operating Engr’s, 388 F. Supp. 155 (E.D. Pa. 1974) 13 Id. at 157, 163-65.

14 Stephanie M. Wildman et al., Privilege Revealed: How Invisible Preference Undermines America (NYU Press 1996) (“Race, gender, and sexual orientation are in the room whether we make them explicit or not, but everyone pretends that they are not noticing.”); Arthur S. Miller, The Myth of Objectivity in Legal Research & Writing, 18 Catholic U. L. Rev. 290, 299, 304 (1969).

15 Leslie P. Culver, White Doors, Black Footsteps: Leveraging ‘White Privilege’ to Benefit Law Students of Color, 21 J. Gender, Race & Justice 37 (2017). continued on page 29 1

November/December 2020 • THE FEDERAL LAWYER • 25

Opinion

It Is Time to Advise and Encourage Consent to Magistrate Judge Review and Disposition in All Social Security Cases

By Pamela D. Crawford

Pamela D. Crawford has served as an administrative appeals judge (AAJ) with the Social Security Administration’s Appeals Council since January 2006, including serving as a division chief AAJ from 2010 to 2017.

She began her federal career as a statistical analyst at the Administrative Office of the U.S. Courts, where she worked full time while attending law school. She is a graduate of the University of Maryland School of Law. All opinions expressed herein are those of the writer alone, and do not represent the official position of the Federal Bar Association, The Federal Lawyer, or any organization with which the writer is associated. Articles and letters to the editor in response are welcome.

The U.S. district courts should universally expand procedures to require clerks of court and other designated court officials to advise and encourage all Social Security litigants of the availability of a magistrate judge’s review and disposition pursuant to 28 U.S.C. § 636(c). Currently, Rule 73 of the Federal Rules of Civil Procedure describes the consent procedures.1 Utilizing magistrate judges’ availability in a more assertive manner would capitalize on their high degree of subject matter expertise and decrease the time social security cases are pending with the court.

Implementation of a more robust consent process is as simple as court officials always reminding the parties that, with their consent, a magistrate judge can review their case in its entirety. Rule 73(b)(2) states, “A district judge, magistrate judge, or other court official may remind the parties of the magistrate judge’s availability but must also advise them that they are free to withhold consent without adverse substantive consequences.” Making it mandatory to incorporate universal procedures to always remind the parties at the time of filing, given that the rule requires advising there are no “adverse substantive consequences” to not consenting, would not affect a party’s rights or place an administrative burden on the courts. Moreover, further due process protections are provided at subsections (b)(3) and (c), in as much as a district court judge may vacate a referral for good cause or demonstration of extraordinary circumstances, and “an appeal from a judgment entered at a magistrate judge’s direction may be taken to the court of appeals as would any other appeal from a district court judgment.” As a practical matter, the court should provide Form AO 85, “Notice, Consent, and Reference of a Civil Action to a Magistrate Judge,” along with the required Form JS 44, Civil Cover Sheet, in initiating the reminder about the availability of a magistrate judge.

The creation of the magistrate judge position for competent attorney adjudicators, essentially replacing the outmoded U.S. commissioner position, was a major reform. Acceptance of magistrate judges’ review

26 • THE FEDERAL LAWYER • November/December 2020

has evolved significantly since the era when the Social Security Administration challenged the legality of the district courts’ use of magistrate judges. In Mathews, Secretary of Health, Education and Welfare v. Weber, 423 U.S. 261 (1976),2 Chief Justice Burger delivered the Supreme Court’s opinion, which centered on the question of the magistrate judges’ authority.3 The Court framed the issue as follows: The question presented in this case is whether the Federal Magistrates Act of 1968, 28 U.S.C. § 636, permits a United States district court to refer all Social Security benefit cases to United States Magistrates for preliminary review of the administrative record, oral argument, and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determination—all subject to an independent decision, on the record, by the District Judge who may, in his discretion, hear the matter de novo.4 More than 40 years later, it is impossible to imagine that the Supreme Court could have decided this case any other way. The Court clarified that 28 U.S.C. § 636 had been included to permit the district courts to assign magistrate judges a variety of functions, including presiding over oral arguments and making reports and recommendations to district court judges for final disposition. Today, Mathews v. Weber is so much less of an argument about the intent of the Federal Magistrates Act, and so much more of a lesson about the successes that can be achieved when the federal judiciary consistently endeavors to use all of its available resources to the fullest extent allowable under the law.

By way of the expansion of duties to address increased court filings over the years since the of Federal Magistrates Act was enacted in1968, the magistrate judges have earned the confidence of the legal bar and proven to be an invaluable asset to the federal judiciary.5

Historically, Social Security cases have been referred to magistrate judges to address the substantial volume of appeals of unfavorable agency decisions and to allow the district court judges more time to adjudicate other cases. Over time, magistrate judges have developed considerable expertise in this area of the law. While it is common for courts to encourage consent to magistrate judge disposition of Social Security cases pursuant to 28 U.S.C. § 636(c), many courts still engage in the lengthier multi-step process of having the magistrate judge review the administrative record and submit a highly detailed report and recommendation to a district court judge for a de novo review and issuance of the court’s judgment and order.6 More often than not, the district court judge agrees with the magistrate judge’s report and recommendation. And, typically the result is a remand for further agency action as opposed to an award of benefits, pursuant to sentence four as opposed to sentence six of section 205(g) of the Social Security Act.7 So, the layered process of court review versus straightforward magistrate judge review and ruling is inarguably an inefficient use of valuable court talent, resources, and time.

The idea of encouraging, or even requiring, the application of 28 U.S.C. § 636(c) to review all Social Security cases filed in the district courts is by no means an original proposal. Ten years after the Supreme Court’s opinion in Mathews v. Weber, in an April 8, 1986, letter to the chief counsel of the House Ways and Means Committee, who was holding a hearing on, inter alia, the issue of whether it would be feasible to create a separate Social Security Court, Magistrate Judge Steven D. Pope proposed that the better alternative was to amend the Social Security Act so that initial court review of agency appeals would be given to magistrates. He further proposed that litigants could subsequently appeal a magistrate’s order to either a district court judge or, if granted leave, to the circuit court. Magistrate Judge Pope’s arguments for doing so included that this “would provide a system for expeditious review of Social Security cases by judicial officers of better quality and greater independence than could ever be hoped for in a separate Social Security Court.”8 While his arguments focused on reasons for not creating a separate court for Social Security cases, and those reasons were not at all flattering to the Social Security Administration’s adjudicators or reflective of the intensity required to keep up with the constant changes in the rules, the proposal to require that all magistrate judges be given initial responsibility for disposition of Social Security cases remains valid.

But along the way, not everyone has had confidence that the judicial system could maintain its integrity should magistrate judges be accorded greater independence. In 1989, while endorsing the “advise and encourage” to consent approach that subsequently became the law, the Magistrates Committee of the Federal Courts Study Committee within the Judicial Conference rejected the legislative proposal to give outright jurisdiction to magistrate judges in certain cases. It also rejected the proposal to presume consent in civil cases unless the parties later objected.9 Adjudicators for the Social Security Administration are no strangers to a lack of confidence vote. Contrary to any negative opinions about the quality of decision making in Social Security cases, the agency engages all of its adjudicators in rigorous onboarding and continuous education, and the agency is proud of its award-winning training initiatives.10 To ensure that administrative law judges stay abreast of adjudication trends and changes in regulations and policy,

the judges receive nationally produced mandatory quarterly training and regional-specific training. Newer judges are mentored and, depending on the number of years on the bench, the more experienced judges attend an annual judicial conference that provides a national forum for advanced discussions. The quality of training often satisfies state bar requirements for continuing legal education credits. And, in addition to having at-your-fingers access to individual performance feedback via the agency’s management information system, videos on demand are available on a wide array of topics. Training, mentoring and constructive feedback are also provided to hearing office support staff.11 Moreover, the Appeals Council’s Administrative Appeals Judges and its support staff receive the same or at least equivalent training, mentoring, and feedback. Policy compliant and legally defensible decision-making is among the agency’s top priorities.

The Federal Judicial Center (FJC) provides research and education on a variety of topics to federal judges. A two-phase orientation for new magistrate judges includes Social Security adjudication in the second phase. The FJC sponsors a magistrate judges’ national workshop covering many topics wherein Social Security is presented by a three-judge panel to discuss issues from the perspectives of a magistrate judge, an administrative law judge, and an administrative appeals judge. On a local level, magistrate judges participate in bench bar conferences to discuss Social Security workloads with claimants’ advocates, Social Security Administration representatives (adjudicators and attorneys from the Office of the General Counsel), and the Department of Justice assistant U.S. attorneys. Among the FJC’s educational publications is a pocket guide, authored by Magistrate Judge David A. Sanders, titled Social Security Disability Appeals.

The guide provides the following description: Social Security disability cases pose many challenges. In practice, federal court review of Social Security agency decisions differs widely from district to district and from circuit to circuit. This pocket guide is a primer for judges deciding Social Security disability appeals at the district court level.

It addresses issues that regularly arise in these appeals and highlights relevant provisions in the U.S. Code, the Code of Federal Regulations, and the Federal Register.12 Such efforts by the Social Security Administration and the FJC complement each other with respect to addressing the need to stay abreast of the constant changes in Social Security law and maintaining quality in decision-making. These efforts present opportunities for the district courts and the agency’s adjudicators to collaborate on best practices. Given that magistrate judges already handle a significant portion of the district courts’ Social Security workload, they are best positioned to lead in this regard. They are well-versed in the law and generally understand the challenges in applying the law at the administrative level so that decisions are supported by substantial evidence. In view of the magistrate judges’ training and mentoring activities and demonstrated willingness to include the bench bar, as well as the potential for developing training with the Social Security Administration, increased expertise and efficiency—and therefore greater national consistency in application of the law—would result if the courts were to universally promote use of 28 U.S.C. § 636(c) to facilitate magistrate judges’ review and disposition of all Social Security appeals of final agency decisions.

The Administrative Office of the U.S. Courts reported that at November/December 2020 • THE FEDERAL LAWYER • 27

the end of the fiscal year ending Sept. 30, 2019, the district courts had 357,566 civil cases pending, and that 18,124 of those cases, or 5 percent, were Social Security appeals.13 A snapshot of the activity between March and September 2019 shows that district court judges made significant strides in reducing their civil cases dockets, from 40,133 to 34,588 cases, or by 13.8 percent. However, district court judges’ Social Security dockets declined at a lesser rate, from 575 to 560 cases, or by 2.6 percent. In contrast, magistrate judges’ Social Security dockets declined from 279 to 200 cases, or 28.3 percent.14 During the year ending Sept. 30, 2019, magistrate judges issued 4,410 Social Security reports and recommendations pursuant to 28 U.S.C. § 636(b).15 This is not comprehensive data; however, it reliably demonstrates that magistrate judges have an expertise advantage and, in spite of the additional time it takes to draft and issue a report and recommendation for an additional review of the case by a district judge, this advantage enables them to more efficiently dispose of an impactful number of Social Security cases.

The Social Security benefits claims process is complex and fluid because of constant changes in the law, regulations, and policies.

Despite the agency’s great effort to promote timely public service, however, from the initial filing of a Social Security disability claim through the time of the final agency denial, a typical claimant has waited years to have standing to file a district court appeal. If a claimant elects to pursue his or her claim through the entire administrative review process, this entails initial review at a Social Security field office, then reconsideration by a state disability determination service, then a hearing and decision by an administrative law judge, and then final review by the Appeals Council. And at end of the fourth and last step of agency review, should the claimant exercise his right to appeal to a district court, it may again take years to obtain the court’s opinion as to whether the agency’s decision is supported by substantial evidence. Here, the district courts can and should make a concerted effort to reduce the time a Social Security appeal is pending, whenever possible, by avoiding the dual-layered review process involving a magistrate judge and then a district court judge. Again, instituting the practice of always advising and encouraging the availability of a magistrate judge pursuant to 28 U.S.C. § 636(c) in Social Security cases is a straightforward procedure that saves the courts resources and saves the litigants unnecessary and often stressful waiting time.

The Federal Magistrate’s Act of 1968 was enacted to make the judicial system more efficient. The magistrate judge position was successful in its formative years, despite concern and pushback, and continues to be successful today. Magistrate judges have adjudicated many, if not most, appealed Social Security cases. They have proven themselves to be experts in this very complex and nuanced area of the law. The courts and the litigants have benefited from their high level of expertise and efficiency. As such, it neither serves the courts nor the litigants to maintain a system of magistrate judges reviewing and issuing reports and recommendations on Social Security matters to a district judge, unless the parties decline to consent to full magistrate judge review and disposition. Every district court should always advise and encourage consent. It is time. 

Endnotes Federal Rules of Civil Procedure 73—Magistrate Judges: Trial by Consent; Appeal (a) Trial by Consent. When authorized under 28 U.S.C. § 636(c), a magistrate judge may, if all parties consent, conduct a civil action or 1

28 • THE FEDERAL LAWYER • November/December 2020

proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. § 636(c)(5). (b) Consent Procedure.

(1) In General. When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. § 636(c). To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a party’s response to the clerk’s notice only if all parties have consented to the referral.

(2) Reminding the Parties About Consenting. A district judge, magistrate judge, or other court official may remind the parties of the magistrate judge's availability, but must also advise them that they are free to withhold consent without adverse substantive consequences.

(3) Vacating a Referral. On its own for good cause—or when a party shows extraordinary circumstances—the district judge may vacate a referral to a magistrate judge under this rule. (c) Appealing a Judgment. In accordance with 28 U.S.C. § 636(c)(3), an appeal from a judgment entered at a magistrate judge’s direction may be taken to the court of appeals as would any other appeal from a district-court judgment.

2 The Social Security Administration was established by Reorganization Plan No. 2 of 1946, effective July 16, 1946. In 1976, SSA was organized under the Department of Health and Human Services. SSA memorialized Mathews, supra, as agency policy under Social Security Ruling 76-14c: Section 205(g) (42 U.S.C. § 405(g))— Judicial Review—Referral of Social Security Benefit Cases to United States Magistrates. SSA became an independent agency in the executive branch by the Social Security Independence and Program Improvements Act of 1994 (42 U.S.C. § 901), effective Mar. 31, 1995.

3 A couple of years prior, the Supreme Court issued an opinion in Wedding v. Wingo, 418 U.S. 461 (1974), that invalidated a local rule allowing magistrate judges to preside over evidentiary hearings in federal habeas corpus cases. The Court, in part, held that § 636(b) itself precludes a district judge from assigning a magistrate the duty of conducting an evidentiary hearing and limits the magistrate’s review to proposing, not holding, such a hearing. Id. at 469-73.

Justice Brennan delivered the Court’s opinion, while Justice Burger and Justice White dissented.

4 Mathews, 423 US at 263.

5 Despite opposition of a formal name change from the Executive Committee of the Judicial Conference, the Federal Courts Study Committee Implementation Act of 1990 amended the Federal Magistrates Act to change the title of United States magistrate to “United States magistrate judge.” Peter G. McCabe, The Federal Magistrate Act of 1979, 16 Harvard. J. Legis. 343, 89-90 (1979).

6 Peter G. McCabe, A Guide to the Federal Magistrate Judges System 49-50, Federal Bar Association (Aug. 2014; updated Oct. 2016), https://www.fedbar.org/wp-content/uploads/2019/10/FBA-WhitePaper-2016-pdf-2.pdf.

7 The Supreme Court held, in Schaefer v. Shalala, 509 U.S. 292 (1993), that remands to the Social Security Commissioner may only be pursuant to either sentence four or six of § 205(g) of the Act (codified under 28 U.S.C. § 405(g)). Under sentence four, the court enters a judgment that affirms, modifies, or reverses the commissioner’s decision and ends the Court’s jurisdiction. Under sentence six, considered an interlocutory action, the Court retains

jurisdiction and does not enter a judgment until the commissioner has completed the directed development.

8 Hearing Before the Subcomm. of the Social Security Comm. of the U.S. House of Reps. Comm. on Ways and Means, 99th Cong. (Mar. 18, 1986).

9 McCabe, supra note 5, at 89-90.

10 The agency has earned the W. Edwards Deming Training Award, presented by Graduate School USA, in years 2011, 2015, and 2016.

11 Office of the Inspector General, Social Security Administration, Oversight of Administrative Law Judge Decisional Quality 9 (Mar. 2017), https://oig.ssa.gov/sites/ default/files/audit/full/pdf/A-12-16-50106.pdf.

12 Hon. David A. Sanders, Social Security Disability Appeals, Federal Judicial Center (Mar. 8, 2019), https://www.fjc.gov/sites/ default/files/materials/07/Social%20Security%20Disability%20

Appeals_First%20Edition_Second%20Printing_2019.pdf.

United States Courts, Table C-3-U.S. Dist. Courts-Civil Statistical Tables for The Federal Judiciary ( June 30, 2020), https://www.uscourts.gov/statistics/table/c-3/statisticaltables-federal-judiciary/2020/06/30.

14 United States Courts, Table CJRA-1- Civil Justice Reform Act (CJRA) (Mar. 31, 2019), https://www.uscourts.gov/statistics/ table/cjra-1/civil-justice-reform-act-cjra/2019/03/31; United States Courts, Table CJRA-1- Civil Justice Reform Act (CJRA) (Sept. 30, 2019), https://www.uscourts.gov/statistics/table/ cjra-1/civil-justice-reform-act-cjra/2019/09/30.

15 United States Courts, Table M-4B-U.S. District CourtsU.S. Magistrate Judges Judicial Business (Sept. 30, 2019), https://www.uscourts.gov/statistics/table/m-4b/judicialbusiness/2019/09/30.

13

Commentary continued from page 25

E.g., Cal. R. Ct., Rule § 10.612.

Charles R. Calleros, In the Spirit of Regina Austin’s Contextual Analysis: Exploring Racial Context in Legal Method, Writing Assignments and Scholarship, 34 J. Marshall L. Rev. 281, 282 (2000).

18 Marilyn Schwartz, Guidelines For Bias-Free Writing 1 (Ind. Univ. Press 1995); Casey Miller and Kate Swift, The Handbook Of Nonsexist Writing: For Writers, Editors And Speakers (2d Ed.) (HarpersCollins Publishers 1988); Rosalie Maggio, The Bias-Free Word Finder: A Dictionary of Nondiscriminatory Language 7-10 (Beacon Press 1991).

19 Lorraine Bannai and Anne Enquist, (Un)Examined Assumptions and (Un)Intended Messages: Teaching Students to Recognize Bias in Legal Analysis and Language, 27 Seattle U. L. Rev. 1, 15-18 & nn.60-68 (2003).

20 Id. at 11-13 (“fathering” vs. “mothering” connote different involvement in child’s life).

21 Dian Fine Maron, “Why Words Matter: What Cognitive Science Says about Prohibiting Certain Terms,” Scientific American, Dec. 19, 2017.

22 Laurel Currie Oates et al., The Legal Writing Handbook 708-13.910 (3rd Ed. Aspen L. & Bus. 2002).

23 See Oates, supra note 15, at 4-5 (describing class discussion about whether black defendant’s race should be discussed); see also Bryan A. Garner, The Redbook: A Manual On Legal Style 272-73 16 17

(“Needless reference to a criminal defendant’s race may suggest that race is somehow related to and predictive of behavior” and “pointless mention of a witness’s physical disability (e.g., blindness) may invoke a reader’s biases (e.g., a presumption of diminished mental capacity)”).

24 Cheryl Staats et al., State Of The Science: Implicit Bias Review, 63 (Kirwan Institute 2015).

25 See supra note 13.

26 See Mark Pagel, How Language Transformed Humanity ( July 2011), https://www.ted.com/talks/mark_pagel_how_language_ transformed_humanity/transcript?language=en; see also Kristan Rivas, The Life-Changing Power of Words ( Jan. 13, 2014), https:// www.youtube.com/watch?v=joj7_brYWt8. (hypnotherapist Kristin Rivas analogizing words and the ideas they convey as “one of the most resilient parasites”); Sharon Begley, Train Your Mind, Change Your Brain: How a New Science Reveals Our Extraordinary Potential to Transform Ourselves (Ballantine Books 2007) (findings in “neuroplasticity”—the ability of the brain to change in response to experience—suggest that our thoughts can force our brains to alter their structure and function, and even generate new neurons to adapt, heal, and renew after trauma or disability); https://viewpoint.pointloma.edu/how-muchdo-our-words-matter (quoting Point Loma Nazarine University Associate Professor Dr. Kara Lyons-Pardue, as saying “Our words have the potential to create imaginative spaces.”).

Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org.

November/December 2020 • THE FEDERAL LAWYER • 29

Thought Sponsor

Premier Legal Services at Speed: A Snapshot of the U.S. Army Judge Advocate General’s Corps’ Response to the COVID-19 Pandemic The 2020 COVID-19 pandemic is reshaping the world with furious speed, challenging every facet of our society, including the legal practice in the U.S. Army. The lawyers, paralegals, and legal administrators of the U.S. Army Judge Advocate General’s Corps (“JAG Corps”) met this challenge head-on, providing capable, principled counsel, often under difficult conditions. How did the JAG Corps respond? By doing what we have done since our founding in 1775— providing premier legal services to our Army in times of calm and crisis. As per the top lawyer for the Army, The Judge Advocate General, Lieutenant General Charles Pede, “Some things don’t change— we provide essential principled counsel at the speed it is needed.”

JAG Corps assets are uniquely situated to provide specialized capabilities or a surge in response to an immediate legal need. Lieutenant General Pede reiterated this message earlier: “Each of us is ready to step up and step in. That is how our Army works and that is how our Regiment works. That is how the next fight will be and how this fight is.”

Just weeks after the Second Continental Congress raised an Army on June 14, 1775, the Congress appointed William Tudor, a law clerk of John Adams, as the first Judge Advocate General of the Army.

The JAG Corps is among the largest legal employers in the nation, with more than 10,000 military and civilian attorneys and paraprofessionals. JAG Corps personnel practice in multiple areas including criminal law, international law, legal assistance, tort law, labor and employment law, environmental law, contract and fiscal law, and operational/national security law, which includes domestic response and humanitarian relief efforts. According to Brigadier General Marilyn Chiafullo, the Commander of the U.S. Army Reserve (USAR) Legal Command, “Right now, we are responding to the COVID-19 mission on a scope, speed, and scale not seen for several years, if ever.” While multiple lines of effort across the Corps are engaged in the COVID pandemic response, three areas highlighted here are the legal assistance efforts, the support provided by the National Security Law teams, and the role of the legal advisor in the area of Defense Support of Civil Authorities.

Legal Assistance Amid the pandemic, the USAR Legal Command mobilized 94 judge advocates and paralegals in as little as 24 hours to provide 30 • THE FEDERAL LAWYER • November/December 2020

The tools used by the 213th Legal Operations Detachment, headquartered in Decatur, Ga., to provide premobilization services to soldiers from the 306th Field Hospital at Fort Gillem (Atlanta).

legal assistance in support of 31 personnel processing events called Soldier Readiness Programs across the United States. Legal Command maintains the readiness of approximately 1,850 Army Reserve judge advocates, legal administrators, and paralegals who are split into 28 Legal Operations Detachments across the country. This legal assistance was integral in helping over 3,300 soldiers mobilize without legal concerns that could inhibit them from accomplishing their missions. Medical personnel mobilizing to support the Urban Augmentation Medical Task Forces were the majority of the soldiers assisted during these events and the legal teams advised on financial hardship matters and re-employment rights and engaged in drafting wills and powers of attorney.

National Security Law Support The legal tip of the spear for the entire Department of Defense COVID-19 response is the Office of The Judge Advocate General National Security Law Division (NSLD) team, headed by Colonel Gail Curley. The NSLD team collaborated with lawyers from the Department of Defense Office of General Counsel and the Department of the Army Office of General Counsel to help advise the Army staff on complicated issues related to the COVID-19 response. The issues were complex, ranging from restricting travel for service members to

Left: First Lieutenant Armando Santiago from the 151st Legal Operations Detachment, headquartered in Alexandria, Va., prepares a will for a soldier from the 18th Field Hospital at Fort Story (Virginia Beach, Va.) prior to mobilizing in support of the COVID-19 response. Above: A paralegal from the 151st Legal Operations Detachment intakes will preparation documents for a mobilizing soldier from the 18th Field Hospital.

acquiring testing systems to funding operations. Another important mission of the NSLD team was to publish information to legal offices in the field. One of the NSLD team members, paralegal Staff Sergeant Alexandra Chacon, created and populated COVID-19 knowledge management sites for both internal and external stakeholders.

One of these sites is a collaborative tool enabling judge advocates and paralegals across the world to find the latest information on issues in their respective jurisdictions. As Lieutenant General Pede put it, “We have cross-leveled information masterfully, and at the speed of war. Some solutions are good for all of us—others are local solutions.” The information gathered and disseminated by NSLD has been utilized by judge advocates and paralegals who are engaged in the response at every level.

Defense Support of Civil Authorities Legal advisors with specialized knowledge on how the Department of Defense can support other federal agencies during times of emergencies are experts in the area of Defense Support of Civil Authorities. As part of the Joint Task Force coordinating the federal response, the attorneys and paralegals in the Active Army, the Army Reserve, and the National Guard served as legal advisors to the Federal Emergency Management Agency (FEMA) Emergency Program Liaison Officers. Fully integrated and providing seamless support among federal agencies, the Defense Support of Civil Authorities team members advised FEMA Defense Coordinating Officers on difficult legal issues. For example, beginning in March 2020, Captain Yasmin Rodriguez mobilized in support of FEMA Region II at Naval Weapons Station in Earle, N.J. She offered legal advice on the following subjects: emerging issues in mortuary affairs, authorities

on quarantine and isolation, military authorities on treating civilian COVID-19 patients, and the blend of military and civilian privacy policies. Brigadier General Chiafullo summed up this integrated response by stating, “The path to success in our response is through a unified team effort, utilizing assets from every component.”

Conclusion The JAG Corps’ agile response to this unique national crisis has proven that it is a well-trained, innovative fighting force, ready to fight and thrive in the new operational environment of pandemic response or in the next fight of the 21st century. Lieutenant General Pede has advice for all JAG Corps members that can be applied to the members of any organization at any level: “Now is the time for calm, for leadership, for unwavering confidence in yourself and your team. Be ready!”

Be sure to follow the official Facebook page of the U.S. Army Judge Advocate General’s Corps (@ArmyJAGCorps) for up-to-date information and topical issues as well as emerging engagements, videos, and photos highlighting our JAG Corps Soldiers and civilians around the globe. For more information on joining the U.S. Army JAG Corps, follow us on Instagram (@armyjaro) and Facebook (@armyjaro). Application information can be found by visiting www.jagcnet.army.mil/JARO or calling 866-ARMY-JAG (866-276-9524). 

Left: Major Rosalyn Naval from the 75th Legal Operations Detachment, headquartered in Mountain View, Calif., conducts a premobilization briefing to soldiers from the 2nd Medical Brigade at Camp Parks (Pleasanton, Calif.).

The 75th Legal Operations Detachment was given 48 hours’ notice to provide premobilization services to nearly 200 soldiers. Above inset: Captain Yasmin Rodriguez from the 4th Legal Operations Detachment, headquartered in Queens, N.Y., mobilized in support of FEMA Region II’s COVID-19 response.

November/December 2020 • THE FEDERAL LAWYER • 31

Thought Sponsor

Protecting Privilege in the Age of Self-Disclosures

By Alexander Thomas, Kate Seikaly, and Rizwan Qureshi

Alexander Thomas is the global managing partner and executive committee chair at Reed Smith. He is a commercial litigator and antitrust counselor. Kate Seikaly is a managing partner at Reed Smith. She focuses her practice on government and internal investigations, regulatory compliance and enforcement matters, and related litigation. Rizwan Qureshi is an accomplished litigator and seasoned trial lawyer who represents corporations and individuals in government investigations, criminal and regulatory proceedings, and related civil litigation. ©2020 Alexander Thomas, Kate Seikaly, and Rizwan Qureshi. All rights reserved.

Self-disclosure of an actual or potential violation of law—whether required by law or voluntary—presents inherent risks to the protections of the attorney-client privilege and work product doctrine over an internal investigation into the same issue. A recent decision from the Fourth Circuit provides a few helpful guideposts for how to navigate this minefield.

Imagine the following scenario: A publicly traded company that manufactures and sells products to government customers receives an anonymous report to its ethics hotline indicating a manufacturing issue which, if true, would mean its goods do not meet essential elements of its government contracts, including one with the Department of Defense. A cursory investigation by the legal department reveals there may be truth to at least some of the allegations and that certain employees were aware of the potential issue for approximately one year. Company management decides to engage outside counsel to conduct an investigation and provide legal advice as to potential exposure and remediation.

At the conclusion of the investigation, the law firm produces a written report summarizing its factual findings, assessment of legal risks, and recommendations.

The law firm’s report explains the support for its conclusions, including attribution of certain statements to particular individuals. The law firm also prepared memoranda summarizing its extensive review of documents (including emails) and interviews of company employees but did not provide those to the company.

The law firm recommended termination of employees and that the company self-report the manufacturing issues to the Department of Defense. The company followed these recommendations and implemented other remediation efforts. As part of the self-disclosure, the law firm made multiple presentations and submitted written reports to the government. Ultimately, the company resolved the matter with the government, including payment of a significant fine.

Following the announcement of the settlement, several civil suits are filed against the company, including a securities class action and qui tam False Claims Act suit, as well as a wrongful termination suit

32 • THE FEDERAL LAWYER • November/December 2020

by one of the terminated employees. In each of these suits, discovery requests include document requests and interrogatories regarding the law firm’s investigation, with the plaintiffs arguing that the disclosure to the government waived attorney-client privilege and work product production over the entire investigation, including the law firm’s presentations and submissions to the government, the law firm’s written report, and the law firm’s memoranda and interview notes.

A recent Fourth Circuit decision made clear that when these sorts of self-disclosures are handled appropriately, attorney-client privilege and work product protection can be preserved, reversing a troubling district court decision that left government contractors and businesses operating in highly regulated industries on edge.

Self-Disclosures to Government Agencies Self-disclosures by companies to government agencies of potential wrongdoing are becoming increasingly common. In most cases, these disclosures are made pursuant to government regulations requiring them or government programs that provide for incentives that strongly encourage them.

Examples of mandatory disclosure regimes include the Contractor Code of Business Ethics and Conduct, found in the Federal Acquisition Regulation System1 and the Department of Health and Human Services Mandatory Disclosures2. Both regulations require entities to disclose in writing information relating to any violation of federal criminal law involving fraud, bribery, or gratuity violations.

There are also several government programs that provide valuable incentives to companies in order to encourage self-disclosures. For example, the Department of Justice’s Foreign Corrupt Practices Act Corporate Enforcement Policy,3 provides that when a company has voluntarily self-disclosed misconduct, fully cooperated, and appropriately remediated in a timely manner, there will be a presumption that the DOJ will not pursue criminal charges, will recommend a 50 percent reduction in the fine provided for in the U.S. Sentencing Guidelines, and will not require a monitor. Full cooperation and timely and appro-

priate remediation without voluntary disclosure generally results in only a 25 percent reduction in fine. Under the Export Control and Sanctions Enforcement Policy for Business Organizations, the DOJ has similarly provided incentives for business organizations to receive appropriate credit for self-disclosure pertaining to a “willful” violation of U.S. sanctions law. These incentives include a presumption that the company will receive a non-prosecution agreement and will not pay a fine if it voluntarily self-discloses, fully cooperates, and appropriately remediates in a timely manner. However, if certain aggravating factors are present and a different criminal resolution is reached—such as a deferred prosecution agreement or guilty plea— the DOJ will recommend a fine that is at least 50 percent less than the amount that would otherwise be available. Similar programs include the Environmental Protection Agency’s Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations; and the Department of Health and Human Services’ Office of Inspector General’s Voluntary Self-Disclosure Program.4

Pre-Fluor Case Law Self-disclosures to government agencies are not new. The seminal case on attorney-client privilege, Upjohn Co. v. United States,5 involved a voluntary disclosure to the Securities and Exchange Commission regarding questionable payments to foreign government officials. Following that disclosure, the Internal Revenue Service began an investigation and issued a summons for all files related to the company’s internal investigation conducted by the General Counsel, including written questionnaires, memoranda, and notes of employee interviews. In that case, the Supreme Court ruled that the communications by company employees to counsel were covered by the attorney-client privilege and work product doctrine but did not address the issue of waiver resulting from the voluntary disclosure.

Later that year, a circuit split developed surrounding the issue of waiver. In 1977, the Eighth Circuit decided Diversified Industries, Inc. v. Meredith,6 a case that arose in the context of civil litigation, where the plaintiff sought discovery regarding a memoranda and reports prepared by outside counsel for defendant Diversified in connection with an internal investigation that the company had disclosed to the SEC in response to an agency subpoena. In two paragraphs, the Eighth Circuit en banc concluded that voluntarily surrendering the privileged material to the SEC pursuant to subpoena resulted in only a limited waiver, stating that holding otherwise “may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers.” As to the civil litigants, the court noted that they may still discover the underlying facts by examining business records, deposing employees, interviewing nonemployees, and obtaining documents and financial records that were not prepared for the purpose of communications with the law firm.

In 1981, the D.C. Circuit expressly rejected the notion of a limited waiver in Permian Corp. v. United States.7 There, the company voluntarily provided documents to the SEC in connection with an inquiry as to its registration statement, including 36 documents written by company employees or counsel that were determined to be protected by the attorney-client privilege or work product doctrine.

Subsequently, the Department of Energy sought the documents from the SEC for its own investigation, and the company moved for a permanent injunction prohibiting the disclosure. The company

argued for a limited waiver theory based on Diversified that the disclosure to the SEC did not waive privilege as to other agencies. The D.C. Circuit was unpersuaded. In response to the policy argument in Diversified, the court said that “[v]oluntary cooperation with government investigations may be a laudable activity, but it is hard to understand how such conduct improves the attorney-client relationship. If the client feels the need to keep his communications with his attorney confidential, he is free to do so under the traditional rule by consistently asserting the privilege, even when the discovery request comes from a ‘friendly’ agency.”

The Fourth Circuit took up the issue in the case In re Martin Marietta.8 There, an employee of Martin Marietta was under indictment and issued a trial subpoena to the company for documents related to its internal audit reports and interviews with employees. In its efforts to resolve its own criminal charge, the company had previously submitted to the government a position paper summarizing its internal investigation, which quoted from and summarized in substance the interview results. During the discovery proceedings in the criminal case against the employee, Martin Marietta argued that the underlying documents were privileged and protected. The Fourth Circuit disagreed and found that there had been a subject-matter waiver for both attorney-client privilege and non-opinion work product because the disclosure quoted from and summarized the interviews.

The Third Circuit had occasion to weigh in on this issue as well in Westinghouse Elec. Corp. v. Republic of Philippines.9 Westinghouse’s outside counsel conducted an internal investigation in response to an SEC investigation into allegations that Westinghouse obtained contracts by bribing foreign officials, which resulted in two letters from the firm to the company reporting its findings. Westinghouse authorized the law firm to show one of the letters to the agency and orally present its findings. The SEC agreed not to retain the report, and the law firm did not disclose any of the documents underlying its presentation. Later, DOJ began to investigate the company and subpoenaed the law firm’s letters. After entering into a confidentiality agreement with DOJ, the company disclosed the documents to the grand jury. In subsequent civil litigation brought by the Republic of the Philippines against Westinghouse, the Republic sought the documents that had been made available to the SEC and DOJ. The court sided with the D.C. Circuit, noting that, while encouraging corporations to conduct internal investigations and cooperate with federal investigative agencies is a laudable goal, it should not factor into the attorney-client privilege analysis. The court concluded that the privilege protects only those disclosures necessary to encourage clients to seek informed legal advice; the disclosures to the government were not for that purpose. With respect to work product, the court found that was waived as well because the disclosures were not made to further the goal underlying the doctrine. “When a party discloses protected materials to a government agency investigating allegations against it, it uses those materials to forestall prosecution (if the charges are unfounded) or to obtain lenient treatment (in the case of well-founded allegations). These objectives, however rational, are foreign to the objectives underlying the work-product doctrine.”

More recently, in S.E.C. v. Herrera, a district court grappled with the issue of waiver when a company’s external counsel conducted an internal investigation and provided “oral downloads” of witness interview notes and memoranda to the SEC in connection with an investigation into the company.10 In a separate civil litigation by the SEC against former employees of the company, the employees issued November/December 2020 • THE FEDERAL LAWYER • 33

a subpoena to the law firm seeking the interview notes and memoranda upon which the oral downloads were based. The court found there to be no substantive distinction for waiver purposes between providing documents and reading or orally summarizing the material in the documents, and so found a waiver as to the interviews for which there had been an oral presentation to the government. The Herrera court also addressed the issue of a PowerPoint presentation made by external counsel to the SEC and concluded that it was not protected work product because it was specifically prepared for the SEC and did not include the substance of what witnesses said. Thus, while the presentation itself was discoverable in the subsequent litigation, there was no waiver of work product protection.

Fluor With this backdrop, one must wonder whether it is ever possible to disclose an actual or potential violation of law—whether required by law or voluntary—and still maintain privilege over an internal investigation into the same issue. The Fourth Circuit’s non-precedential decision in In re Fluor Intercontinental, Inc., provides some helpful guideposts on how to do just that.11 The Fluor case began with Fluor’s internal investigation, and subsequent termination of an employee, related to allegations of that employee’s conflict of interest. The internal investigation was directed and supervised by Fluor’s legal department. After the investigation was completed, Fluor terminated the employee, Stephen Anderson, and sent a summary of its findings (“the Disclosure”) to the Office of the Inspector General of the Department of Defense, as required by the Federal Acquisition Regulations, Contractor Code of Business Ethics and Conduct, 48 C.F.R. § 52.203-13(b)(3)(i), applicable to all government contracts amounting to more than $5 million and 120 days in duration.

Following his termination, Anderson filed suit against Fluor in the Eastern District of Virginia, asserting claims of wrongful termination, defamation, and negligence. In discovery, Anderson sought documents relating to the internal investigation; Fluor objected on the grounds of attorney-client privilege and the work product protection. Anderson moved to compel production of the documents, and the magistrate judge denied the motion, agreeing with Fluor that the documents were privileged and thus protected.

• Th e District Court overruled the magistrate judge’s order, ruling that Fluor had waived privilege as to four specific statements contained in the Disclosure. Those statements were: • Anderson “appears to have inappropriately assisted … ” • “Fluor considers that a violation … ” • Anderson “used his position … to pursue improper opportunities and … to obtain and improperly disclose nonpublic information … ” and • “Fluor estimates that there may have been a financial impact … due to improper conduct.”

According to the District Court, “[i]n the context of an internal investigation these legal conclusions as to past events, as well as recommendations for future conduct, are conclusions which only a lawyer is qualified to make” and “these statements are legal conclusions which characterize [Anderson’s] conduct in a way that reveals attorney-client communications.” The District Court found that the inclusion of these statements in the Disclosure resulted in a subject 34 • THE FEDERAL LAWYER • November/December 2020

matter waiver of the attorney-client privilege as to those four statements.12 The District Court found this case to be similar to the ruling in Martin Marietta Corp., where the Fourth Circuit found a subject-matter waiver for both attorney-client privilege and non-opinion work product due to the company’s disclosure of a position paper that quoted and summarized interviews conducted by attorneys.

Fluor sought mandamus relief in the Fourth Circuit, raising three errors. The Fourth Circuit agreed with Fluor as to the first erroneous conclusion reached by the District Court—that the Disclosure revealed attorney-client communications and thus waived attorney-client privilege. The Fourth Circuit noted that Fed. R. Evid. 502 states that “[t]o find waiver, a court must find that there has been ‘disclosure of a communication or information covered by the attorney-client privilege or work-product protection,’” but that it would “not infer a waiver merely because a party’s disclosure covers ‘the same topic’ as that on which it had sought legal advice.” In particular, the Fourth Circuit distinguished “between disclosures based on the advice of an attorney, on the one hand, and the underlying attorney-client communication itself, on the other.”13

Tips for Self-Disclosing to the Government As demonstrated in the cases summarized above, the ramifications of disclosures to the government can be varied and significant. It is likely impossible to anticipate and fully consider every possible scenario, but it is important to remember that the prevailing jurisprudence is that once there has been a waiver of privilege as to any adversarial party, that waiver will apply in all future proceedings. For this reason, it is critically important that attorneys and companies carefully craft any disclosure made to the government to minimize the risk of a waiver. Taken together, the decisions outlined above reveal that certain guideposts should be followed when making a disclosure of potential wrongdoing to the government in order to maintain privilege over an internal investigation into that conduct.

Do not disclose to the government the substance of privileged communications. Privileged communications relating to the internal investigation may be in writing, as in Permian, or verbal (e.g., employee interviews), as in Herrera. As to both types of communications, to maintain attorney-client privilege, it is critical that the substance of these communications not be disclosed. Thus, it is wise not to quote from or substantively summarize interviews conducted by attorneys during the internal investigation. This is true whether any disclosure to the government is made in writing or orally.

Focus on facts obtained during the investigation. Because facts are never privileged, facts can be disclosed without risking a waiver of privilege. Examples of facts that can be disclosed include the date on which the manufacturing defect was first identified internally or details regarding the manufacturing defect (e.g., which products were impacted, the dates of the sales of defected products), even if those facts were learned during the course of the internal investigation through interviews with employees. Facts supplied in a disclosure should not be attributed to particular individuals, as doing so could be interpreted as disclosing the substance of privileged communications.

When explaining conclusions, keep them general and factual in nature. One of the critical points in the Fluor decision was the Fourth Circuit’s determination that the disclosure did “no more than describe Fluor’s general conclusions about the propriety of Anderson’s conduct.” The Fourth Circuit declined to infer a waiver on that basis.

Thus, counsel and companies should be careful to keep conclusions

both general and factual in nature. For example, a disclosure to the government should not include a statement that the employees who were aware of the defect violated company policy, which could be deemed a legal conclusion.

Production of non-privileged materials should not waive privilege.

Similarly, the production to the government of emails or documents that were gathered and reviewed during the internal investigation, but which themselves are not privileged, should not result in a waiver of attorney-client privilege or work product protection. Examples of these types of documents include correspondence between employees not within the legal department regarding requirements of the government contract, internal training manuals that reflect knowledge on the part of the employees engaged in the potential wrongdoing, or correspondence with the government customer regarding the products.

The decision to self-disclose to a government agency is not to be taken lightly and requires careful consideration. Once that decision is made, the substance of that disclosure is equally critical, with particular focus on the implication on privilege and work product protection in any related inquiry or litigation. That is why working closely with counsel to assess the risks associated with and the substance of a self-disclosure is essential to protecting privilege. 

Endnotes 48 C.F.R. § 52.302-13.

45 C.F.R. § 75.113.

1 2

Dep't of Just., Justice Manual 9-47.120, https://www.justice.gov/jm/ jm-9-47000-foreign-corrupt-practices-act-1977 (last visited Nov. 16, 2020).

4 For over a decade, the DOJ has made clear that waiver of attorneyclient privilege is not a requirement for determining that a company has cooperated with the government in connection with an investigation. See, e.g., Paul J. McNulty, 2007, Principles of Federal Prosecution of Business Organizations ( July 5, 2007), https://www. justice.gov/sites/default/files/dag/legacy/2007/07/05/mcnulty_ memo.pdf (stating that “[w]aiver of attorney-client privilege and work product protections is not a prerequisite to a finding that a company has cooperated in the government’s investigation” and instructing that if a corporation declines to waive privilege, “prosecutors must not consider this declination against the corporation in making a charging decision”).

5 449 U.S. 383 (1981).

6 572 F.2d 596, 611 (8th Cir. 1977).

7 665 F.2d 1214 (D.C. Cir. 1981).

8 856 F.2d 619 (4th Cir. 1988).

9 951 F.2d 1414 (3d Cir. 1991) 10 324 F.R.D. 258 (S.D. Fla. 2017).

11 No. 20-1241, 2020 U.S. App. LEXIS 9621 (4th Cir. Mar. 25, 2020).

12 The District Court also found compelling that Fluor had described the disclosure as “voluntary” and, in the District Court’s view, went beyond the requirements of the regulation.

13 Fluor, 2020 U.S. App. Lexis 9621 at *8-9.

3

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November/December 2020 • THE FEDERAL LAWYER • 35

Judicial Profile

Hon. Robert Joseph Lesnick

Chief Administrative Law Judge (Ret.), U.S. Federal Mine Safety and Health Review Commission

by Hon. Alisa Tapia

W

Hon. Alisa Tapia is a freelance writer and an administrative law judge for the U.S. Social Security Administration (SSA) in Tallahassee, Fla. Prior to working for SSA, Judge Tapia worked as an administrative judge for the U.S. Department of Agriculture, National Appeals Division, adjudicating exclusively all Spanish-speaking appeals in South Florida and Puerto Rico. Judge Tapia’s decisions have been published both in English and Spanish. ©2020 Alisa Tapia.

All rights reserved.

ith over 25 years of experience behind him, Hon. Chief Administrative Law Judge Robert Lesnick recently retired. A kind and thoughtful judge with a lifetime commitment to government service, he is known for his exceptional knowledge and dedication to the rule of law. Now enjoying retirement, Judge Lesnick’s love for the law tugs at him to continue to serve people in many meaningful ways.

Judge Lesnick was born and raised in Edenborn, Pa.—a small mining town on the southwest corner of the state. His parents were hardworking people with modest means and limited education. However, they envisioned a better life for their children and encouraged them to pursue higher education.

Young Robert had a passion for astronomy, and in the seventh grade, his parents bought him a 3-inch telescope. By age 14, and with the eye of becoming an astronomer, young Robert spent his summers picking tobacco to afford a better-quality telescope. Young Robert’s dream of becoming an astronomer, however, came to an abrupt halt after his father questioned how his young son could benefit from an astronomy degree. Valuing his opinion, young Robert abandoned that dream and delved into his studies, graduating as class valedictorian from Kolb Memorial High School.

In 1970, Judge Lesnick attended St. Vincent College on a full academic scholarship. St. Vincent College is a private liberal arts college operated by the Benedictine monks of Saint Vincent Archabbey in Latrobe, Pa. It was the first Benedictine monastery in the United States. In his sophomore year at St. Vincent, Judge Lesnick was elected student body president.

In this role, Judge Lesnick was the liaison between the student body and faculty for effecting positive change. He initiated and supported student events and planning. His early leadership experience would later foreshadow significant accomplishments in his career.

He graduated with a bachelor’s degree in economics, summa cum laude, in 1974.

Later that year, Judge Lesnick entered the University of Virginia School of Law (UVA), a school of

36 • THE FEDERAL LAWYER • November/December 2020

historical significance with gorgeous campus grounds.

In law school, Judge Lesnick contributed to the law student newspaper, The Virginia Law Weekly, and was a member of the managing board of The Virginia Legal Research Group. While a law student at UVA, he served as a research assistant to visiting law professor David W. Louisell of the University of California, Berkeley. For well-needed breaks from the rigors of law studies, Judge Lesnick served as a summer clerk for Gilardi & Cooper, a labor law firm, and at the Fayette County Office of the Public Defender. One summer, he spent hours at the Fayette County Courthouse watching trial after trial. He shares, “I knew at that moment I wanted to be a litigator.”

Upon graduation in 1977, Judge Lesnick joined the prestigious Kansas City law firm of Smith, Gill, Fisher & Butts. P.C. (now Bryan, Cave) practicing tax and corporate law for such clients as H&R Block and Universal Press Syndicate. After two years, Judge Lesnick left private practice to pursue his passion for litigation and trial practice. To fulfill that desire, he joined the federal government.

From 1979 to 1990, Judge Lesnick worked for the Office of the Solicitor, U.S. Department of Labor. As a

litigator, Judge Lesnick represented the Labor Department before administrative agencies and federal courts.

He primarily worked on cases involving the enforcement of the Federal Mine Safety and Health Act, which establishes safety and health standards in the mining industry, and the Occupational Safety and Health Act, which details safety and health conditions in most private industries. Judge Lesnick’s strong work ethic did not go unnoticed. He was the recipient of Special Achievement Awards in 1981, 1988, and 1989.

From 1990 to 1994, Judge Lesnick joined the Special Trial Unit at the Office of Thrift Supervision, U.S. Department of the Treasury. The agency is the primary federal regulator of savings institutions. It enforces regulations to ensure that both federal and state-chartered thrift institutions operate safely and soundly. As a senior trial attorney, he handled appellate practice and enforcement issues. One of Judge Lesnick’s most memorable cases was tirelessly working with the Special Trial Unit on the well-publicized case involving Charles Keating and Lincoln Savings & Loan scandal (the 1989 loan collapse at the cost of billions of dollars to taxpayers).

In 1994, Judge Lesnick accepted a lifetime appointment as a U.S. administrative law judge for the U.S. Social Security Administration (SSA) in Pittsburgh. After only one year at SSA, Judge Lesnick was promoted to chief administrative law judge, managing 22 line judges; it was the largest office at that time.

For over 15 years and prior to the holding in Lucia v.

SEC, Chief Judge Lesnick was instrumental in the development of the Administrative Law Judge Examination with the Office of Personnel Management. He assisted in revising the exam to include a full review of an applicant’s qualifications and a multi-part assessment of relevant competencies, with an emphasis on courtroom litigation to ensure the solicitation of qualified candidates.

In 2000, Judge Lesnick returned to the Department of Labor, this time as a judge presiding over cases related to the Black Lung Benefits Act, which provides monthly payments and medical benefits to coal miners disabled from pneumoconiosis (black lung disease) due to working in the nation’s coal mines. He also presided over cases involving the Longshore and Harbor Workers’ Compensation Act, which provides for compensation, medical care, and vocational rehabilitation services to employees disabled as a result of job injuries that occur on the navigable waters of the United States. Finally, he presided over cases involving the Defense Base Act, which provides workers’ compensation protection to civilian employees working outside the United States on U.S. military bases. Three years later, Judge Lesnick put on his chief judge robe and embarked on another agency voyage that would play a significant role in his career.

The U.S. Federal Mine Safety and Health Review Commission From 2003 until his retirement, Judge Lesnick served as the chief judge of the U.S. Federal Mine Safety and

Health Review Commission (FMSHRC), managing the Washington, Pittsburgh, and Denver offices. Judge Lesnick was passionately committed to his work and took his role as chief judge to heart. A son of a coal miner, he saw firsthand the dangers of coal mines.

After years of inhaling coal dust, Judge Lesnick’s father contracted coal workers’ pneumoconiosis. His uncle and grandfather were also both coal miners who ultimately lost their precious lives to coal mining accidents. Judge Lesnick’s office at the FMSHRC was filled with artifacts from the lives of coal miners over the past century, which served as a classroom for lawyers, law clerks, and interns.

Shelves were filled with miner’s lamps, fuses used for explosives, cages for canaries that warned miners of lethal mine “damp,” and scrip issued as payment for miners’ labor that could only be spent in the company store.

Judge Lesnick presided over several significant mining accident cases. First, the Aracoma mine disaster— where a conveyor belt ignited, pouring smoke through the gaps into the fresh air passageway that the miners were supposed to use for their escape. The accident led to the death of two miners from carbon monoxide poisoning. Second, the Quecreek inundation—where nine coal miners were trapped in a flooded chamber 240 feet below the ground inside the mine. Third, the Upper Big Branch (UBB) mine disaster—where 29 miners were killed in a massive explosion that ripped through a mine in the heart of West Virginia’s coal country—the worst coal mine disaster in the United States in 40 years. Judge Lesnick also adjudicated the precedent-setting cases addressing the Department of Labor’s new pattern of violations rule.

Prior to the UBB mine disaster, Judge Lesnick alerted Congress about the rising backlog of penalty cases at FMSHRC and multi-year delays in the issuance of final orders involving penalties for noncompliance with safety standards. From 2007–2014, the number of new cases on hand annually rose from 4,100 cases in 2007 to 18,190 in 2014, involving approximately 100,000 safety citations against mine operators. The resulting delays—averaging over 500 days—had real-world consequences because the Mine Safety and Health Administration (MSHA) could not apply its most powerful enforcement tools to serial violators—such as its Pattern of Violations sanction—absent a history of fully adjudicated violations. Although Congress held hearings on the backlog a mere six weeks before the UBB mine disaster, Congress did not provide the requisite funds to hire additional judges and the attorneys in the Department of Labor until it became clear that the Pattern of Violations sanction should have been used against the UBB mine operator.

Once provided with the resources, Judge Lesnick increased the number of judges from nine to 20 using a combination of additional permanent and senior judges, part-time senior judges, and loaner judges. A law clerk and a legal assistant were provided for each judge.

The docket office was expanded by seven positions to provide more efficient receipt and processing of cases.

November/December 2020 • THE FEDERAL LAWYER • 37

approved his appointment at the level of AL-1. Although there are approximately 1,700 federal administrative law judges at 27 agencies, there are only five AL-1 judges.

With a lifetime of accomplishments, Judge Lesnick is highly regarded as a fair, impartial, and dedicated judge.

In 2015, Judge Lesnick was nominated for the Mary C. Lawton Award for Outstanding Government Service.

Most recently, Judge Lesnick was the former president of the Federal Administrative Judge Conference. As president, Judge Lesnick had the opportunity to preside over the committee to prepare the brief in the Supreme Court case of Lucia v. SEC, and has continued to serve as a valued advisor to Congress in preparing a legislative response to the Trump Administration’s elimination of the merit selection process for U.S. administrative law judges following Lucia.

Left to right: Judge Lesnick's daughterin-law, his two sons, a law clerk, and Judge Lesnick on their way to the underground at the Consol Mine.

It took eight years, but the backlog was eliminated—and every case was given full consideration.

He also took a strong interest in mentoring judges, attorneys, and legal interns. For line judges, he took the initiative to secure funding to provide professional development training that included two annual judicial training sessions and yearly attendance at the Federal Administrative Law Judge Conference. He initiated the law clerk program and visited law schools to recruit students for internships or clerkships, and graduates to serve as attorney advisors for federal service. His dedication to the legal profession did not stop at the hearing office and law schools.

Judge Lesnick is a long-time member of the Administrative Conference of the United States (ACUS). The ACUS is an independent federal agency whose mission is to find ways to improve the procedures by which federal agencies interact with citizens and businesses in carrying out regulatory, adjudicatory, and other programmatic functions. The successful completion of a number of ACUS studies, involving such diverse areas as video conferencing, immigration adjudication, and social security adjudication, have benefited from Judge Lesnick’s experience and counsel. Judge Lesnick saw his role as always to address the need for the independence of the adjudicator. Those who would try to tip the scales of justice in their favor will complain about the lack of “accountability” of the judge; however, accountability is the flip side of independence.

In fall 2019, the chair, with approval by the conference’s presidentially appointed council, appointed Judge Lesnick as a Senior Fellow at the ACUS. Judge Lesnick has also made time to make formal presentations before the American Bar Association, American University School of Law, the Pennsylvania Coal Association, the Energy and Mineral Law Foundation Conference, and the Federal Administrative Law Judge Conference.

Judge Lesnick occupies a position of unique responsibility in the federal government. In recognition of the significance of these responsibilities associated with the FMSHRC, the Office of Personnel Management

38 • THE FEDERAL LAWYER • November/December 2020

The Wonderful World of Retirement In 2019, Judge Lesnick officially retired from government service. He loved every second of his career, especially mentoring interns, attorneys, and judges and presiding meaningfully over cases. It is no surprise that despite being retired, his deep commitment to serving people in some capacity has followed him into retirement.

Judge Lesnick is currently a contractor conducting civil mediations and presiding over hearings under various whistleblower protection acts and employee discrimination acts. Such acts protect federal employees and applicants for employment who are the subject of discrimination or lawfully disclose information they reasonably believe evidences a violation of law, rule, or regulation. Judge Lesnick finds his work as a mediator and judge in these cases to be exceedingly rewarding.

In sharing his judicial philosophy, Judge Lesnick states, “Being a judge should not be about you but about assuring that those who appear before you get a full due process hearing, and leave the courtroom knowing that even if you do not rule in their favor, they leave knowing that they were given the opportunity to be heard, to challenge the opposition, and their arguments were fully appreciated.” Equal justice under the law demands that a claimant’s chances in court should not depend on how deep their pocket is. Everyone has a right to expect a level playing field."

When asked what brings him happiness, Judge Lesnick shares, “Happiness is the joy I see in the smiles of my wife Kathy, our family, our children, and our grandchildren.

Judge Lesnick leaves us with one of his favorite quotes from Henry David Thoreau, which he says has served him well throughout his career: “If you advance confidently in the direction of your dreams, you will meet with unexpected success in common hours.” 

Judicial Profile

Hon. Robert L. Pitman

District Judge for the Western District of Texas–Austin Division

by David R. Schleicher

W

David R. Schleicher, of the Schleicher Law Firm, PLLC, is licensed in Washington, D.C., Texas, and Washington State. His practice typically is split evenly between representing businesses and nonprofits in Texas and then, in job-related disputes, federal employees around the world. His legal work has been covered in the Washington Post, Washington Times, and Federal Times, among others. He previous authored Federal Lawyer profiles of Judges Walter Smith and Fred Biery. He may be reached at david@gov.law or david@corplawfirm.com.

ant to make a favorable impression in Judge Robert Pitman’s court? Consider erring on the side of being a problem-solver versus a war fighter, working from a place of humility rather than self-importance, being respectful of everyone’s time rather than spending an hour on cross-examination, and playing by the rules but with an openness to innovate. It is no coincidence that these are the same traits one can expect to see from the bench in Judge Pitman’s court.

Such an approach may also be why he has ranked so highly in bar judicial polls, but he for one refuses to speculate on that. Notwithstanding having been student-body president when attending Abilene Christian University, he lacks an elected official’s urgency to comment on everything. But he does have some advice for lawyers who end up in high-profile disputes: use your time before the court to focus on the litigation. Putting on a show for the reporters or a client may provide a momentary feeling of elation, but winning the case and doing so in a cost-effective manner feels better in the long run.

In a hearing before the court, Judge Pitman likes the lawyers to engage in dynamic listening. Take opportunities to find common ground and hunt for solutions that may not have been readily apparent at an earlier stage in the litigation. He won’t tolerate abuses of the rules (the truism “beware the wrath of a patient man” may apply here), but he won’t let rigid adherence to rules stand in the way of the parties making progress toward final resolution of the litigation.

Judge Pitman was known for a time as the Western District of Texas “I-35 Judge” because of his travels on the interstate between the San Antonio Division to the south, the Austin Division in the middle, and the Waco Division to the north. This gave him a perspective on how lawyers interact in different-sized cities, from San Antonio (seventh largest city in the United States), to Austin (11th largest), to Waco (183rd largest). For the most part, he discerned that the attorneys in all three locales treated each other with respect and saved their battles for meaningful issues.

He found this to be especially true among prosecutors and the criminal defense bar, where they all

expect to see each other another day, and money is the not ultimate issue. He hopes what appears to be the start of an initial trend away from collegiality is not a long-term one, as it is in some other large cities.

Prior to taking the bench, Robert Pitman served as an interim U.S. attorney, deputy U.S. attorney, and then Senate-confirmed U.S. attorney, with time also in the Executive Office for U.S. Attorneys. This time in the “nation’s largest law firm”—the Department of Justice—taught him that sometimes when a party says, “Your honor, we’re doing the best we can,” it may actually be true, especially in dealing with bureaucracies. On the flip side, having the ability to hold a party or attorney truly accountable when they flagrantly misbehave is one of the aspects of being a federal judge that he finds most fulfilling.

Another thing he appreciates is the intellectual rigor required in responding to requests for emergency injunctive relief. He is cognizant that he must quickly study, learn, and rule justly on the matter, keeping in mind that in many cases that initial order dictates the final outcome of the dispute. This contrasts with the necessarily in-depth deliberation required for sentencing defendants.

The profound result on the life of the defendant and his or her family means Judge Pitman finds that a November/December 2020 • THE FEDERAL LAWYER • 39

day of pronouncing sentencings can end up being much more emotionally draining than even a long day in a jury trial. And any given sentence may still weigh on his mind years later.

When in court with a jury, it is not unusual for Judge Pitman to look over and see that the jury members often have a very different view regarding the value of time compared to the attorneys trying the case before them. Judge Pitman explains that unnecessarily dragging out presentation of evidence not only may make a jury resentful, but it also makes the jury less likely to identify and remember the most critical pieces of it. In his Austin courtroom, Judge Pitman enjoys how the city’s economic diversity produces a broad range of issues and types of disputes to resolve, beyond the typical drug, gun, and immigration prosecutions that can consume the docket in other Texas cities.

While some judges prefer to resolve discovery disputes themselves, and others prefer a magistrate to handle almost all of them, it is more case specific for Judge Pitman. If he has already invested a considerable amount of time becoming familiar with the case, he is more likely to directly address a discovery dispute. But if it’s a newer one to him, he generally lets the magistrate judge handle it. One of three Austin Division magistrates is randomly assigned to each case at the time it is filed.

When it comes to life outside the court, Judge Pitman in recent years has ended up trading in his longtime devotion to being a horseman for instead biking around Austin, often riding 40 miles a weekend. He finds cycling provides a chance to see things from a different perspective, and it clears his mind, keeps him healthy, and leaves the air cleaner than would a Sunday drive.

Growing up in the Fort Worth area, Judge Pitman had four siblings but no attorney role models. He credits his choice of the profession to the influence of a Youth in Government program while he was a junior in high school. He won at the state level in the mock trial proceedings (see photo) and went on to compete at the national level. While earlier family members had gone into medicine, he was more drawn to the back-and-forth of the law (and—as with many lawyers—the fact that it did not require post-Trigonometry-level math skills).

Over the years, he left behind some of what he had ingrained from a strict and very conservative religious upbringing. But he credits it with honing his analytical and logic skills in a way that another background might not have. He observes that the same process he used then often is applicable now: (1) read a text; (2) consider what it meant when written; (3) determine how it is to be applied now; (4) debate; (5) consider again in light of the discussion; and (6) repeat.

Asked what advice he would give to a lawyer hoping to someday become a federal judge, Judge Pitman had these thoughts. First, many are qualified, but few chosen, so don’t make it your only goal. Next, as a practical matter in getting nominated, consider that sometimes it turns out to be better to be everyone’s second choice 40 • THE FEDERAL LAWYER • November/December 2020

and nobody’s first choice. Third, hope all the stars align.

Lastly and most importantly, in the meantime do the things you should be doing anyway as a lawyer—work hard while earning the trust and respect of judges and other attorneys.

San Antonio Division District Judge (and former Chief Judge) Fred Biery offered praise for Judge Pitman’s willingness to take on the 180-mile docket of hearing cases from San Antonio to Waco. He also described Judge Pitman as having been a pleasure to work with as a U.S. attorney, always maintaining regular contact with the judiciary. Biery reports that assistant U.S. attorneys and support staff thought well of Judge Pitman, too. Elizabeth Cottingham had a similar experience, first coming to know Judge Pitman when they were AUSAs together in the Austin office.

Her initial impression of him was that he was charming, bright, and had a clever sense of humor. She saw him put others at ease with his kind demeanor and disarming smile, and by keeping them laughing. She saw him rely on the same high degree of emotional intelligence in his roles as a magistrate judge, as chief of the Austin U.S. Attorney’s Office, then as the Western District of Texas U.S. attorney, and finally as district judge.

Ms. Cottingham recommends that lawyers who will be appearing before Judge Pitman be well-prepared, having fully considered any position they plan to argue for, and be candid, courteous, and sincere. They should be prepared for the occasional unexpected and pointed question, suggesting that he may be looking for something other than a stock, routine answer.

One experience Judge Pitman will not forget is serving as the interim U.S. attorney at the time of the 9/11 terrorist attacks. He observed that numerous law enforcement agencies set aside their differences and focused on the mission of making the nation safer. He describes times of crisis as providing unique opportunities for progress if people are willing to work together.

He explains how this requires an empathy for how others came to viewpoints that may be very different from your own. (Through an earlier master’s degree in international human rights law from the University of Oxford in England, he had a true opportunity to learn from others’ perspectives.)

He cautions that the other side of the coin is that a crisis may bring to the surface and foment differences that can do real damage to a country. Whether the judiciary, law enforcement agencies, or otherwise, he views maintaining stable institutions to be essential to recovering from such tragedies, as he considers the United States to have successfully done after 9/11. 

VIRTUAL

QUI TAM CONFERENCE FEBRUARY 17-19, 2021

42 • THE FEDERAL LAWYER • January/February 2020

Defending the Innocent Client Against Federal Regulatory Agency Lawsuits That Impose Receiverships VINCENT A. CITRO

H

opefully by the time this article is published, the COVID-19 pandemic will have subsided and life will be starting to return to normal. While sheltering in place, many of us were streaming content from various services. The Netflix investigative docuseries Dirty Money chronicles stories of alleged corruption, fraud, and other unsavory deeds.1 Several episodes feature the regulatory and prosecution agencies dealing with fraudsters and ne’er-do-wells. Congress has granted several regulatory entities, like the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC), the authority to file a sealed lawsuit and move the Court, ex parte and in camera, to impose a receivership over a defendant’s assets before the complaint can even be challenged.

Too often these actions go unchallenged, starving the client of needed resources to provide for a defense, for loved ones, and for a means to survive until vindicated at trial. The purpose of this article is to discuss how to challenge a federal regulatory agency seeking a preliminary injunction, when appropriate, and factors to consider when determining whether to file a motion to dismiss a complaint.

What Federal Receiverships and State Guardianships Have in Common The second episode of Dirty Money details the rise and fall of Scott Tucker, whom the Federal Trade Commission (FTC) sued, and the Department of Justice prosecuted. At the outset of the civil litigation, the FTC convinced a federal judge to appoint a receiver to seize Tucker’s assets, liquidate them, and distribute funds to approved claimants, mostly victims of Tucker’s scheme. Netflix paints Tucker as the very person Congress envisioned when permitting regulatory agencies to impose receiverships on bad actors. Contrast that with the fifth episode of Dirty Money’s second season, which exposes the rampant abuse of laws meant to protect the elderly. Court-imposed guardianships left seniors penniless, powerless, and isolated from their families. When you represent a client who is innocent of the allegations in a federal regulatory agency’s complaint, yet still involuntarily subject to a court-imposed receivership, it is easy to see the similarities to the elder abuse that can happen in the state guardianship context. Before a preliminary injunction hearing, the receiver effectively leaves the defendant penniless, i.e., unable to afford defense counsel. Some defendants have family and friends willing to act as third-party payors for defense counsel, but that is not the norm. Without counsel, defendants subject to a receivership feel powerless to confront both the federal regulatory agency and the receiver’s often onerous demands. Finally, the receiver often contacts family and friends, using the unproved accusations in the complaint to paint the defendant as a fraudster, often causing family and friends to treat the defendant like a pariah. This is especially true when the defendant led family and friends to invest in an entity a federal regulatory agency asserts was riddled with fraud.

November/December 2020 • THE FEDERAL LAWYER • 43

When the Defendant Becomes the Client As someone who defends people and entities against the federal government’s use of criminal and civil authorities, I am often asked how it feels to defend guilty clients. I have never been asked what it is like to defend an innocent client. Just as not all my clients are free from blame, not all my clients committed every allegation in a criminal indictment or civil lawsuit. Clients are confused about how a federal regulatory agency can file a lawsuit under seal and effectively freeze their assets before even contesting the evidence the agency relied on to persuade a federal judge to impose a receivership. “I thought it was innocent until proven guilty,” is the phrase I often hear at the outset of the attorney-client relationship.

The lawsuit alleges that the client engaged in fraud and is likely to continue to engage in fraud. This process results in a temporary injunction being imposed, which the client can challenge within 14 days, pursuant to Federal Rule of Civil Procedure 65. The first step is to analyze the order granting the agency’s ex parte motion for a statutory restraining order and appointment of a temporary receiver and review it with the client. These orders often require the client to take certain steps and provide certain information.

During this discussion, the attorney should discuss the implications of invoking the Fifth Amendment right to refuse to provide information to the federal enforcement agency or receiver. The attorney should also engage with the federal enforcement agency to determine whether a federal criminal investigation is also taking place. Sometimes the client is simultaneously served with the lawsuit and a grand jury subpoena, making the Fifth Amendment analysis easier. It might make sense to invoke the Fifth Amendment early in the civil proceeding and later waive those protections if the criminal investigation concludes that the client is not criminally responsible for any fraud, and might even be a victim. It is beyond the scope of this article to discuss strategies for engaging federal prosecutors. Second, if the appropriate facts are present, the attorney should counsel the client to insist on an evidentiary hearing so that the court can determine whether a preliminary injunction is warranted. As the plaintiff, the federal regulatory agency has the burden of proof and will not be entitled to a preliminary injunction if the information supporting the relief cannot withstand scrutiny.

What Is the Plaintiff’s Burden to Obtain Injunctive Relief To obtain a preliminary injunction, the plaintiff must demonstrate a prima facie case that a violation has occurred and that there is a reasonable likelihood of a future violation.2 Further, when a federal regulatory agency seeks an overly onerous injunction, including one permitting an asset freeze, a more substantial showing is required to support the relief sought.3 Courts have found that the injunctive relief provisions provided to the SEC and CFTC are similar, and cases from one context are persuasive in the other.4 When the federal regulatory agency can neither prove the client participated in a fraud nor that a reasonable likelihood exists that the client will engage in a future fraud without a preliminary injunction, the motion for a preliminary injunction should be denied.

Federal regulatory agencies often allege the client engaged in fraud. To establish liability using a fraud theory, the federal regulatory agency must prove: “(1) the making of a misrepresentation, misleading statement, or a deceptive omission; (2) scienter; and (3) materiality.”5 In the context of a trial on the merits, failing to establish any one of these elements is dispositive.6 Accordingly, attorneys 44 • THE FEDERAL LAWYER • November/December 2020

should argue that the failure to establish any one of these elements is fatal to obtaining an asset freeze.

The Eleventh Circuit has held that scienter can be established in enforcement actions: [I]f Defendant intended to defraud, manipulate, or deceive, or if Defendant’s conduct represents an extreme departure from the standards of ordinary care...[or] when Defendant’s conduct involves “highly unreasonable omissions or misrepresentations…that present a danger of misleading [customers] which is either known to the Defendant or so obvious that Defendant must have been aware of it.”7 When a client was unaware of the fraud, defense counsel should focus on the absence of proof that the client acted with scienter.

Federal regulatory agencies often couple claims that the client directly participated in the fraud with claims that the client was a controlling person over others or over legal entities that engaged in the fraud. To prevail using controlling person liability, the plaintiff must show that the client, as a controlling person, did not act in good faith or knowingly induced, directly or indirectly, the conduct that constitutes a violation of federal law.8 The controlling person must have had actual or constructive knowledge of the core activities that make up the violation at issue and allowed them to continue. In other words, controlling person liability imposes liability for those who can prevent illegal conduct but fail to so. As with all cases, this is a very fact specific analysis. When you represent the innocent client, it is important to carefully detail for the court what facts a federal regulatory agency can prove, and what facts are impossible to prove. It is also helpful to distinguish the role the innocent client had from the roles of obviously culpable co-defendants.

Is the Plaintiff Entitled to a Preliminary Injunction Once a federal regulatory agency can prove that a fraud theory is applicable to the client, the next step is to determine whether it is entitled to a preliminary injunction. To obtain a preliminary injunction, the federal regulatory agency must prove that the client will likely violate the law in the future.9 The Eleventh Circuit requires “that where the Commission seeks to enjoin future violations, it must also show a reasonable likelihood of future violations in addition to a prima facie case of illegality.”10 To make that determination, courts look at “the egregiousness of the defendant’s actions, the isolated or recurrent nature of the infraction, the degree of scienter involved, the sincerity of the defendant’s assurances against future violations, the defendant’s recognition of the wrongful nature of his conduct, and the likelihood that the defendant’s occupation will present opportunities for future violations.”11 Regarding this showing, courts have noted: Although the mere fact of a past violation does not ipso facto establish the SEC’s right to injunctive relief, and thus is not alone tantamount to the “proper showing” of present or future violations, the Commission is entitled to prevail when the inferences flowing from the defendant’s prior illegal conduct, viewed in light of present circumstances, betoken a “reasonable likelihood” of future transgressions....

Relevant considerations in the “reasonable likelihood” analysis resolve into essentially three areas of inquiry: the nature of the past violation, the defendant’s present attitude, and objective constraints on (or opportunities for) future violations.... Such factors include the egregiousness of the defendant’s actions, the isolated or recurrent nature of the infraction, the degree of scienter involved, the sincerity of the defendant’s recognition of the wrongful nature of his conduct, and the likelihood that the defendant’s occupation will present opportunities for future violations.12 To determine whether the client poses a “reasonable likelihood” of future violations, the court must consider: (1) the nature of the past violations; (2) the client’s present attitude; and (3) objective constraints on (or opportunities for) future violations.13 As to the second factor, some federal enforcement agencies have unfortunately invited the court to conclude that the client’s failure to acquiesce to the allegations in the complaint amount to an attitude the court should construe against the client.14 Indeed, to do so (and for a government agency to advocate so) is the very antitheses of the vital role the judiciary has in our government. Simply put, when the federal regulatory agency cannot prove a reasonable likelihood that the client will violate the law in the future, a motion for a preliminary injunction should be denied.15

The Past and the Future Are Different Even if the Court finds that a federal regulatory agency has met the standard for the preliminary injunction as to potential future law violations, the Court should limit its ruling to enjoining the client from violating the law and not impose financial restrictions on bank accounts with unrelated funds or real properties that were acquired with legitimate funds. A claim for equitable relief will only warrant imposition of a pre-judgment asset freeze when the freeze bears a sufficient nexus to both the merits of the action and the particular property sought. Preliminary injunctions “may not address matters ‘lying wholly outside the issues in the suit.’”16 In Great-W. Life & Annuity Ins. Co. v. Knudson, the Supreme Court found prejudgment asset freezes must bear a nexus to particular property.17 Where the federal regulatory agency cannot show a nexus between the fraud and assets, requesting a preliminary injunction hearing is the best way to challenge the plaintiff ’s allegations and ensure that the client can maintain property, earn a living, and pay personal expenses.

Evidence Undercutting Entitlement to Injunctive Relief The very nature of seeking an extraordinary injunctive relief ex parte means the party subject to that relief is deprived of the ability to defend himself or herself before the relief is entered. Federal and state law imposes a heightened duty of candor upon the plaintiff when it seeks the extraordinary injunctive relief, requiring it to advise the court of all material facts, regardless of whether the facts supported or are adverse to the plaintiff ’s theory of the case.18 It is without question that this is much more important when the moving party is an agency of the United States.19 Alas, innocent clients often face complaints and motions for injunctions that are filled with vague and disingenuous allegations. Evidence against principal wrongdoers is detailed but intertwined with vague allegations against the innocent client to portray him or her as equally culpable. In short, the complaints and motions assert guilt by

mere association. I recently represented a client wherein the federal regulatory agency alleged the client invested a sum in which there “may have been funds given to [him] by others for investment…” Said another way, the client may have invested his own money, but the federal regulatory agency was not sure. In other words, the allegations amounted to no more than a guess. “May have” is not proof, or even an allegation, that the client collected money from others and engaged in a scheme to defraud.20 When filing responses to motions for injunctive relief, it is important to parse out exactly what is alleged against the innocent client. Remember to review affidavits in related forfeiture proceedings and, if possible, interview reports that law enforcement agents authored. These documents can also help convince the court that injunctive relief against the innocent client is unwarranted. Sadly, even when culpable defendants admit to federal criminal authorities that an innocent client unaware of the fraud and a criminal prosecution not possible, a federal regulatory agency may nonetheless persist persecuting the innocent client.21 Without proof that the plaintiff could prevail, a court should dissolve or modify the receivership. The court has continuing jurisdiction to modify restraining orders.22 Modification is proper “when there has been a change of circumstances between entry of the injunction and the filing of the motion that would render the continuance of the injunction in its original from inequitable.”23 “While changes in fact or law afford the clearest bases for altering an injunction, the power of equity has repeatedly been recognized as extending also to cases where a better appreciation of the facts in light of experience indicates that the decree is not properly adapted to accomplishing its purposes.”24 When a federal regulatory agency fails to advise the court about the lack of evidence against a client, the plaintiff obtained a restraining order, at best, in error.

Do Not Forget to Move to Dismiss the Complaint In addition to attacking the motion for injunctive relief, remember to attack the complaint that initiated the action. Rarely is the first complaint pled with such particularity that it can withstand a motion to dismiss. The foundation cases on which all motions to dismiss in civil cases are to be judged are Bell Atlantic Corp. v. Twombly25 and Ashcroft v. Iqbal.26 Additionally, Federal Rule of Civil Procedure Rule 9(b) requires a party to “state with particularity the circumstances constituting fraud or mistake.”

Twombly said that under Rule 8(a)(2), a complaint attacked by a motion to dismiss does not need detailed factual allegations, but the obligation to provide the grounds of relief does require more than mere labels and conclusions. A formulaic recitation of the elements of a cause of action is insufficient, and factual allegations must be sufficient to raise the right to relief above the speculative level. The Twombly Court quoted DM Research, Inc. v. College of Am. Pathologists: [T]erms like “conspiracy,” or even “agreement,” are border line: they might well be sufficient in conjunction with a more specific allegation—for example, identifying a written agreement or even a basis for inferring a tacit agreement, ... but a court is not required to accept such terms as a sufficient basis for a complaint.27 Footnote 5 of Twombly notes that the issue in DM Research was the line between the conclusory and the factual, while in Twombly November/December 2020 • THE FEDERAL LAWYER • 45

it lay between the factually neutral and the factually suggestive.28 Thus, a complaint must allege facts rather than conclusions, and the facts alleged must be suggestive, rather than neutral, before liability becomes plausible. If liability is not plausible, the complaint should be dismissed.29 Iqbal interpreted and expanded upon Twombly, identifying the working principles that underlie Twombly. First, the tenet that a court must accept as true all allegations of a complaint applies to factual allegations and not to legal conclusions. Therefore, threadbare recitals of the elements of a cause of action supported only by conclusory statements are insufficient. The court is not bound to accept as true a legal conclusion couched as a factual allegation. Although Rule 8 relieves a plaintiff of the onus of hypertechnical common law pleading, it does not unlock the doors of discovery for a plaintiff who has only conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Where the well-pleaded facts do not allow the court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief.30 Iqbal also established the proper, two-pronged approach the court must take on motion to dismiss. First, the court must begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Conclusions can provide the framework of a complaint, but the conclusions must be supported by well-pleaded facts. Second, if there are well-pleaded factual allegations, the court assumes they are true, then determines whether they plausibly give rise to an entitlement to relief. A pleading that relies on naked assertions devoid of factual enhancement is insufficient to withstand a motion to dismiss.31 Where federal regulatory agencies allege fraud, the heightened pleading standard in Rule 9(b) applies, and those allegations must be pled “with particularity.” Taken together, these principles mean that a claim for fraud must set out the details that constitute the fraud.

The plaintiff must plead facts as to time, place,32 and substance of the defendant’s alleged fraud—specifically, the details of the defendant’s allegedly fraudulent acts, when they occurred, and who engaged in them. Courts have repeatedly held that to survive a motion to dismiss, a fraud complaint must contain what amounts to the first paragraph of a news story: it must allege facts that identify the who, what, when, where, and how of the fraud.33 The complaint must identify specific recipients of fraudulent communications.34 That is, a complaint may not allege that the defendants, as a whole, made misrepresentations to the victims, as a whole. It must allege the identity of a defendant who made a specific statement to an identified victim.35 Complaints that repeatedly use overbroad terms such as “fraud,” “misrepresent,” “cheat,” and the like are insufficient to rise above the level of speculation, as Twombly requires.36 The purpose of the heightened pleading requirement for fraud claims is not only to give the defendant fair notice of the claims brought against the defendant but also to protect the defendant from irreparable harm to the defendant’s reputation, and to prevent a plaintiff from filing baseless claims and then attempting to discover unknown wrongs.37

Never Give In Sir Winston Churchill famously said, “[n]ever give in. Never give in.

Never, never, never, never—in nothing, great or small, large or petty—never give in, except to convictions of honour and good sense.38 Never yield to force. Never yield to the apparently overwhelming 46 • THE FEDERAL LAWYER • November/December 2020

might of the enemy.” When defending clients against federal regulatory agencies, it is important to challenge the allegations made in complaints and the evidence supporting motions for receiverships.

Failing to do so leaves potentially innocent clients subject to a receivership that mirrors an abusive guardianship, where the client cannot effectively defend himself or herself against the apparently overwhelming might of a federal regulatory agency that may have, or said another way—may not have—sufficient evidence to prevail at trial, much less at a hearing on the entry of a preliminary injunction.  Vincent A. Citro is an owner and partner at the Law Offices of Horwitz & Citro, P.A., where he focuses on representing individuals, executives, and legal entities in criminal and related civil and administrative matters, including grand jury and internal investigations. Prior to joining the firm, Citro spent almost 14 years as a federal prosecutor with the Department of Justice, both in Washington, D.C., and in Florida. He has represented clients in federal and state courts and has experience in complex federal criminal and national security matters. Citro serves on the FBA’s Orlando Chapter board of directors. He extends his sincere thanks to firm attorneys Mark L. Horwitz and Cassandra A. Snapp for reviewing this article before submission.

Endnotes Dirty Money (Netflix 2018).

See CFTC v. Hunter Wise Commodities, LLC, No. 12-81311-CIV, 2013 WL 718503, at *9 (S.D. Fla. Feb. 26, 2013), aff ’d, 749 F.3d 967 (11th Cir. 2014) (citing CFTC v. Hunt, 591 F.2d 1211, 1220 (7th Cir. 1979)).

3 See CFTC v. Sterling Trading Grp., Inc., 605 F. Supp. 2d 1245, 1291 (S.D. Fla. 2009) (citing SEC v. Unifund SAL, 910 F.2d 1028, 1039 (2d Cir. 1990) (“Like any litigant, the [federal regulatory agency] should be obliged to make a more persuasive showing of its entitlement to a preliminary injunction the more onerous are the burdens of the injunction it seeks.”)).

4 See Hunter Wise Commodities, LLC, 2013 WL 718503, at *9.

5 Hunter Wise Commodities, LLC, 749 F.3d at 981 (quoting CFTC v.

R.J. Fitzgerald & Co., 310 F.3d 1321, 1328 (11th Cir. 2002)).

6 See R.J. Fitzgerald & Co., 310 F.3d at 1328.

7 Id. at 1328.

8 See JCC, Inc. v. CFTC, 63 F.3d 1557, 1568 (11th Cir. 1995).

9 See SEC v. ETS Payphones, Inc., 408 F.3d 727, 733 (11th Cir. 2005).

10 Hunter Wise Commodities, LLC, 749 F.3d at 974 (citing CFTC v.

Muller, 570 F.2d 1296, 1300 (5th Cir. 1978) (opining that had the Commission sought an injunction of future violations, it might be necessary to show a likelihood of future violations)).

11 See SEC v. Calvo, 378 F.3d 1211, 1216 (11th Cir. 2004) (citations omitted).

12 See CFTC v. Sterling Trading Grp., Inc., 605 F. Supp. 2d 1245, 1291 (S.D. Fla. 2009) (quoting SEC v. Zale Corp., 650 F.2d 718, 720 (5th Cir. 1981); and SEC v. The Globus Group, Inc., 117 F. Supp. 2d 1345 (S.D. Fla. 2000)).

13 See CFTC v. Garcia, No. 2:15-cv-237-FtM-38CM, 2015 WL 3453472, at *3 (M.D. Fla. May 29, 2015).

14 See CFTC v. DaCorta, et. al, No. 8:19-cv-886-T-33SPF (M.D. Fla. Apr. 15, 2019), Dkt. Nos. 165, 169.

15 See CFTC v. Oystacher, No. 15-CV-9196, 2016 WL 3693429, at *6 (N.D. Ill. July 12, 2016).

16 See CFTC v. Next Fin. Servs. Unlimited, Inc., No. 04-80562-CIV, 2005 WL 6292467, at *11 (S.D. Fla. June 7, 2005) (quoting De Beers 1 2

Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (invalidating preliminary injunction preventing defendant from transferring assets out of the country as unrelated to claims of restraint of trade and monopolization)).

17 534 U.S. 204, 214 (2002).

18 See Fla. Bar R. 4-3.3(c) (“In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”); Green Dev. Corp. S.A. De C.V. v. Zamora, No. 15-21594-MC-GOODWMAN, 2016 WL 2745844, at *4 (S.D. Fla. May 10, 2016) (“The duty of candor is particularly heightened where, as here, ex parte proceedings are launched without the opposing party’s knowledge or participation.”).

19 See United States v. Toader, 582 F. Supp. 2d 987, 991 (N.D. Ill. 2008) (“[W]hen the government seeks relief on an ex parte basis…it assumes an enhanced duty of candor and care, due to the absence of an opportunity for adversarial challenge.”).

20 See DaCorta, supra note 14 at Dkt. No. 165.

21 See id., at Dkt. Nos. 165-69.

22 See Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 578 (5th Cir. 1974) (“A district court has continuing jurisdiction over a preliminary injunction [and in] the exercise of the jurisdiction, the court is authorized to make any changes in the injunction that are equitable in light of subsequent changes in the facts or the law, or for any other good reason”); Polaris Pool Sys., Inc. v. Great Am. Waterfall Co., No. 8:05-cv-1679-T-TGW, 2006 WL 289118 at *4 (M.D. Fla. Feb. 7, 2006).

23 Favia v. Ind. Univ. of Pa., 7 F.3d 332, 337 (3d Cir. 1993).

24 King-Seeley Thermos Co. v. Aladdin Indus., Inc., 418 F.2d 31, 35 (2d Cir. 1969).

25 550 U.S. 544, 570 (2007).

26 556 U.S. 662 (2009).

27 170 F.3d 53, 56 (1st Cir. 1999). It should be noted that the term “fraud,” like “conspiracy” or “agreement” is also a borderline term. See Thompson v. Bank of N.Y. 862 So. 2d 768, 770 (Fla. Dist. Ct. App. 2003) (“Because

of litigants’ proclivity to loosely sling the term ‘fraud’ into pleadings, the law requires that fraud be described with precision.”).

28 550 U.S. at 557, n.5.

29 See id. at 555-57, n.5.

30 See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

31 See id.

32 United States v. Mclnteer, 470 F.3d 1350, 1357 (11th Cir. 2006).

33 Garfield v. NDC Health Corp., 466 F.3d 1255 (11th Cir. 2006); Transatlantic, LLC v. Humana, Inc., No. 8:13-cv-1925-T-17TBM, 2016 WL 7319711 (M.D. Fla. Mar. 4, 2016); Agbottah v. Orange Lake Country Club, No. 6:12–cv– 1046–Orl–37KRS, 2012 WL 3612425 (M.D. Fla. Aug. 21, 2012); Medina v. Wright, No. 8:10–cv–2134–T– 35AEP, 2012 WL 12915429 (M.D. Fla. Jan. 10, 2012); Miller v. Ethex Corp., No.: 8:09-cv-1520-T-23TBM, 2010 WL 11508263 (M.D. Fla. Feb. 22, 2010).

34 See Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1242 (11th Cir. 2008) (among other deficiencies, the amended complaint does not identify who received the communication); SEC v. Spinosa, 31 F. Supp. 3d 1371, 1376 (S.D. Fla. 2014) (a complaint must identify the recipients of statements to put the defendant on notice of the exact statements upon which the claims are based).

35 See Daniels v. Bursey, 313 F. Supp. 2d 790 (N.D. Ill. 2004) (plaintiff may not lump the defendants together in a group; he must specify each defendant’s participation in the alleged fraud).

36 Although scienter, unlike fraud, does not have to be pled with particularity, it does have to be pled. Iqbal, 556 U.S. at 686-67 (Rule 9 excuses a party from pleading intent under an elevated pleading standard but does not give license to evade Rule 8’s pleading requirements.).

37 See Zarrella v. Pacific Life Ins. Co., 809 F. Supp. 2d 1357 (S.D. Fla. 2011).

38 Winston Churchill, Speech to Harrow School (Oct. 29, 1941), https:// www.nationalchurchillmuseum.org/never-give-in-never-never-never. html.

Get Published in The Federal Lawyer The Federal Lawyer strives for diverse coverage of the federal legal profession, and your contribution is encouraged to

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November/December 2020 • THE FEDERAL LAWYER • 47

48 • THE FEDERAL LAWYER • November/December 2020

Law in the Time of Corona

1

IRA COHEN, ESQ., B.A. J.D., LL.M.

Cellphone Text Transcript from 16/04/20, 0730 hrs.: “N95 face mask?”

“Affixed.”

“Hands and forearms scrubbed?”

“Affirmative.”

“Nitrile gloves?”

“Check.”

“PPE?” “Roger that.”

“What is your heading?”

“GPS Coordinates: United States Latitude: 25.7738889 Longitude: -80.1938889 Time zone: US/Eastern Current time zone offset: UTC/ GMT -4 hours.”

“Check.”

“Final destination?”

“To my law office for a court hearing on Zoom.”

A

s a member of the so-called Baby Boomer generation, I was raised in a far simpler era of rotary telephones, pinball games, mimeograph machines, small black-and-white televisions, window unit air conditioners, and battery-operated A.M. radios.

Movie theatres had one screen. School children were armed with No. 2 pencils, a box of crayons, and a protractor.

We lived in blissful ignorance in a world devoid of PCs, CDs, DVDs, MP3s, cellphones, microwave ovens, Blu-ray, and 8K HD 96-inchscreen televisions. Technological marvels we now take for granted— like mobile phones—were not available until 1983. The World Wide Web did not come into being until 1989.

Courts had no magnetometers inside and no mammoth concrete barriers outside. The judges’ secretaries took shorthand dictation on steno pads, and the court reporters fidgeted with rudimentary machines. The law clerks conducted their legal research combing through dusty old books, with stacked volumes of Shephard’s Citations covering their desks. There were no cameras and no recording equipment.

Little did we know it, but those were comparatively halcyon days—relatively carefree days when we were just Baby Boomers and not Zoomers.

And now, in 2020, amidst the dreaded and dreadful COVID-19 viral crisis, surrounded by disease and inundated by medical information, misinformation, disinformation, and nagging doubts about our national economy and our collective future, we lawyers must rely on some of the technology we have long taken for granted in order to continue to function with even a semblance of normalcy. We attempt to function as professionals and advocates despite many of us being, or having been, ill ourselves or personally acquainted with clients, colleagues, friends, and relatives who have been infected by and/or suffered from the insidious effects of coronavirus.

I know that I am a dinosaur; I readily confess it—destined for eventual extinction. I am certain of that much. A low-tech lawyer from a different time and place. As Exhibit A, I carry real photographs of my children and grandchild in my wallet. Exhibit B: I cannot program a cellphone. Exhibit C: Unless my youngest daughter happens to be home from college, I am very lucky indeed if I can figure out the right buttons on the three remote controls in time for a football game’s opening kickoff.

Thus, I am the last person who should be pontificating about video-hearing technology for court utilization and its related issues. On the flip side of the coin, perhaps, though—just perhaps—my friends and colleagues, I am the right fit for the task. Simply put, if I can be a “Baby Boomer Zoomer,” so can you. As Alexander Pope mused: “Hope springs eternal….”2 November/December 2020 • THE FEDERAL LAWYER • 49

Ready or not, the COVID-19 global pandemic may have succeeded in catapulting the legal profession over the ramparts and into the next logical phase of legal practice. The days of live, in-person hearings may be behind us, if not delimited and numbered.

And so, without further ado, as for our legal system and courts, as they say on Broadway, “the show must go on.” Thus, we cobble together what appears to be, at the very least, a functioning legal hearing mechanism. It is a mere glimmer of reality. It is, of course, a simulated legal landscape—an isolated and high-tech simulacrum of the real thing. As if the "Matrix" trilogy’s Morpheus had just offered us all the little blue pills that allow us to immerse ourselves in an electronically created version of the judicial system.

Don’t get me wrong. I still prefer live, in-person hearings and I always will. It is one of the reasons I became a lawyer four decades ago.

The looks and sounds of the courthouse, the gleam of the marble floors, and the scent of wood-paneled courtrooms; public speaking; engaging in a spirited discourse on the law; and zealously advocating for your clients. It’s what we thrive on; it’s why many of us became litigators in the first place.

In stark contradistinction, there is something more sterile about a Zoom hearing. More serene. More sedate. Indeed, the decrease of adrenalin is palpable. In some ways, it’s more like a video conference from "The Office." But I believe (like it or not) that it may well be the wave of the future. And if we counselors at law do not wish to be washed over and roughly cast asunder, then we all need to learn and practice some new swimming strokes.

Zoom, of course, is just one platform that can be employed for video-conferencing a courtroom hearing or, to be sure, an entire motion calendar. There are many platforms and software, such as GoToMeeting, Skype, WebEx, Hangouts, Slack, Meeting, Duo, WhatsApp, and High Five, among others. I am not here to endorse one over another. I am neither a reviewer, nor am I a technical expert. My experience has been with Zoom and Zoom alone. I have no doubt that there are, however, numerous parallels with the other platforms.

Quite apart from that fact, as lawyers, it is not ours to question why or to choose the system. The system is not a matter of personal choice. What is a choice is whether to familiarize ourselves and come to terms with the particular system or software selected by a given court. It is not like picking the plan you like from your cable TV provider.

The video hearings I have observed, or participated in, have been adequate for their purpose, nothing more, nothing less. I suppose that, with time, the courts’ IT specialists will up their game. There are hiccups; that’s to be expected. Allegedly, there are security issues with Zoom. I lack knowledge or information sufficient to form a belief as to such allegations. But we all should be cognizant of the claims.

As a threshold matter, allow me, for your benefit, to express some of the problems and issues that I personally have noted. In addition, I have conducted some of my own research on these issues and am sharing the benefit of my discoveries with you. I’m neither sharing as a technical wonk nor as a high-tech lawyer, I’m sharing just as your colleague and friend, a fellow counselor-at-law trying his best to navigate his way through the brave new world of audiovisual lawyering.

To enter the Matrix, the plug must be inserted into the back of your hard-drive or desktop computer. Just like when Neo was hooked into the Matrix by Tank. Search for the email that you will 50 • THE FEDERAL LAWYER • November/December 2020

have received from the court. Click on the link provided to you. You will then be prompted to choose either the audiovisual mode or the audio-only mode. Choose one. If you have selected the “audio only” route, please note the phone number to dial into as well as the associated code, password, and/or any other unique identifier information or number(s). You will be prompted to dial those numbers/letters.

Almost instantaneously, you will be transported to the “Waiting Room,” a nether world between your office and the courtroom. It is an odd place, populated by your adversary and an assortment of other lawyers not of your acquaintance, the totality of which comprise the patch-quilt of the court’s daily motion calendar.

“I’ll wait in this place where the sun never shines, Wait in this place where the shadows run from themselves.”3 Your brief or lengthy sojourn to the Waiting Room probably mirrors what would transpire outside, and inside, that particular jurist’s courtroom in the real-world courthouse. From what I have seen, the shorter the period of time that you are there, the better.

When your case is called, just make believe you are in a real three-dimensional courtroom and are standing at the lectern or counsel table. Greet and address the court. Note your appearance.

Deliver your arguments. Once the judge has ruled (or continued the hearing) and you have thanked the court, depart the Matrix. Oh, and take good care not to forget to sign off/log off Zoom. Do restrain yourself at all times; before you are signed off, do not make faces, roll your eyes, carp about the ruling, or say anything to anyone in your office. Remember: always smile. You’re on Courtroom Camera.

How can I adequately describe the Zoom-hearing experience to you? In the context of a Zoom hearing I attended just the other day, I quickly became attuned to several things. First, I was now looking at fellow lawyers nestled in their inner sanctums; in some cases, I could see their bookcase contents or family photographs. Some desks were virtually paperless; others were seemingly organized chaos; and still others looked more like a hoarder’s garage. One fellow’s wall-clock showed 3:00, though it was only 9:00 a.m. People seemed to me to be more like specimens under a magnifying glass. Nervous habits, nonverbal cues, and improper dress all were there for the viewing. It was rather disconcerting and distracting.

I wondered to myself whether there would be any outlandish situations or grossly inappropriate outfits, such as the ones that had recently made the Florida newspapers (e.g., shirtless lawyers, lawyers by poolside, or lawyers in bed under the covers). Nothing strange, however, transpired on that day.

We were not off to an auspicious start. At the beginning of the hearing, there was an audio problem. As in, there was no sound whatsoever. We could not hear the judge or the other lawyers. Fortunately, there was a chat feature, and several of us quickly chimed in to make this problem known to the court.

The problem was rectified tout de suite, I am happy to say. Another off-putting flaw in the system, at least on this occasion, was that the judge looked more like a hologram than a judge on a television screen; he was superimposed over the flag and state seal behind his chair up on the bench. Thus, at times, parts of his face or upper torso would disappear and be replaced with the flag or the seal, or parts thereof, that were behind him. In some instances, his face would look like a mosaic of different pieces, colors, and designs. At one point, the gold in the seal seemed to be superimposed on the judge’s teeth,

making his mouth look like that of a gang member or a cartel associate. Then, he would start to reappear, like a red-shirted Star Trek security officer having transporter problems during the beaming process.

At present, you are still able to choose either the audio-video Zoom experience or the telephone hook-up only (no video on your end) model. With the telephone-only model, you can see the judge and the other lawyers, but they cannot see you. Some folks have suggested that this shows a lack of respect. Consider if you really want the other attorneys, and the judge, just seeing your headshot photo or, worse, just your name. You certainly can make do with attending your hearings like this, but if your calendar, like mine, features many hearings that are long or complicated matters, I think it only makes sense that you and the judge should be able to see each other.

Consequently, if you do not already have a camera built into the monitor of your desktop computer at the office, you will have to buy an add-on camera. Otherwise, you can use a tablet or an iPad that does have a camera function. I suppose, in a last-ditch effort, you could also use your cellphone, but if your eyes are as old and law torn as mine, that portends to be a real strain on your optic nerves.

At least for the foreseeable future, we should, I have read, reasonably anticipate glitches, gaps, mistakes, and omissions from the audio-video remote hearings. Such problems can take, as I understand it, myriad of forms.

There may be audio-related problems. There can be issues with audio feedback, for example. Echoes may arise, to the great frustration and annoyance of all concerned.

You may experience video-related problems. For example, your webcam may not be functioning properly. Or, the judge’s courtroom camera system may not be up to snuff.

A genuine concern is the presence of potential security issues with the software. Zoom has been criticized in the media for one or more such issues. I express no opinion as to the veracity, or severity, thereof. Zoom claims to have created “patches” to fix the issues. I simply mention it to you so you can look into it, if you wish, in order to make an informed judgment.

If your hearing is taking place in another state (e.g., in cases where you are admitted pro hac vice), remember to docket and log on to your computer at the proper time (taking different time zones into consideration). Also, bear time zone differences in mind when scheduling conferences.

Depending on your location, the court’s location, the day of the week, and the time, you may be vexed by lethargic internet connections. This can cause problems during the connection process or during the communication process. In general, computer speeds during the COVID-19 crisis have not been noted for their alacrity.

According to my readings, there are a number of ways in which we can all improve our computer-hearing experiences. For your convenience and ease of recall, allow me to list them for you here: • C heck to see that you are equipped with high-quality software for video-conferencing.

• Make sure that your system possesses sufficient bandwidth.

• Keep your software updated.

• Keep your hardware updated.

• Have a good IT service-provider on-call.

• Use good computer speakers so that the audio is crisp and clear.

• Locate and remember where the “mute” button is in case it be-

comes necessary to use it. (If you are “Zooming” from home, be aware of where the kids and the dogs are, and who is running the blender at high speed).

• If your system is old and outdated, consider buying a new one.

• Become more conversant with the Zoom system (Google it!

Read Zoom’s web materials) and use it to your general advantage.

• If you enjoy immersing yourself in the remote-hearing arena, consider buying a good headset (headphones) to enhance your audio experience.

As to the last point, there is an informative article that provides some useful tips for dealing with Zoom at https://www.digitaltrends. com/computing/tips-for-using-zoom/. The article discusses, inter alia, how to work within the Zoom world, including how to apply a virtual background; how to create keyboard shortcuts; how to alter (touch up) one’s personal appearance; how to record and transcribe a meeting; how to share a Zoom meeting; and how to schedule a Zoom hearing. Easy as pie.

While we may be loath to admit it, there will no doubt be a fair amount of user error on our part. Warning: we also will seem, on screen, to have put on a few pounds, just as if we were on television; there’s no way around it.

In due course, we will no doubt see webinars popping up, or live CLE sessions, devoted to the perceived Best Practices for Video Conferencing. I do not claim that the practices I have collected here from my own research are the best, but they seem to me to make good sense and to be logical; what is more, they are here and ready for us now, when we really need the aid and assistance.

As it turns out, there is quite a long laundry list of things that we can do to help ourselves and, in so doing, to improve a Zoom-hearing experience. These are matters wholly, or mostly, within our control and/or a matter of personal choice and practice. Always bear firmly in mind: It is a hearing. You are in court. A two-dimensional courtroom, perhaps, but a courtroom, nonetheless. How will you present yourself? Will you exude preparedness and confidence? Or, instead, will you signal that you are lazy, messy, and not taking this seriously? Again, permit me to impart to you a list that I created from my own research: • C lothing choices still matter. Dress appropriately for the hearing.

This means formal court attire, especially if you will be viewable on screen; it also means no gym clothes, no bathing attire, no nightwear, and no Hawaiian shirts open down to the navel. Going shirtless and/or shoeless around the pool is not an option.

• Use proper and sufficient office lighting (too little will make a bad, dark impression; too much may cause a glare for the judge).

• Your background should be an appropriate, business-like setting.

Your office is fine. Maybe. If your office is a mess, or you just do not want prying eyes, then consider setting up a virtual background or green screen behind you.

• Make sure that your hair and/or makeup are appropriately tended to, as may be applicable.

• Realize that your glasses may cause glare for the judge (if you have contact lenses, wear them if you can).

• Remember that the camera rolls on; it is always recording. Other lawyers and the judge may be looking at you. They may well Zoom right in on you.

• Keep your nonverbal cues to a minimum. Do NOT roll your eyes, November/December 2020 • THE FEDERAL LAWYER • 51

• • • •

scratch your head, blow your nose (for that matter, do NOT do anything with your nose), floss your teeth, check or talk on your cellphone, chat with an officemate or your legal assistant, or look at your watch repeatedly. If you are at home, do not talk to your child, play with your parakeet, or eat a breakfast burrito at your desk.

Sit up straight in your chair; do not slouch.

Do NOT eat; do NOT chew gum.

Smile self-confidently.

Do NOT sit too close to the screen (as your head-body proportions could make you look like a bobblehead doll).

Is this the wave of the future? Will all hearings one day be remote? I am sure that someday they will be omnipresent. I, for one, do not look forward to that day. Nevertheless, while not presently the norm, they are necessary to keep the wheels of justice rolling on.

Yet, history and experience, and Geoffrey Chaucer’s 14th-century observation, tell us that “time and tide wait for no man.”4 To that old idiom, we may add the word “technology.” In that sense, perhaps Shakespeare’s response is more apropos here: “There is a tide in the affairs of men, Which taken at the flood, leads on to fortune.”5 In plain, modern English, this means that if you have a favorable opportunity to do something, then, do it; you may have a chance to make a real difference, and if you do not act now, you may never have the opportunity again.

That concludes this transmission. Baby Boomer Zoomer signing off. (Screen goes dark; static sizzles….)

“I’m waking up, I feel it in my bones Enough to make my systems blow Welcome to the new age, to the new age Welcome to the new age, to the new age Whoa, oh, oh, oh, oh, whoa, oh, oh, oh, I’m radioactive, radioactive.”6  Ira Cohen, Esq., B.A., J.D., LL.M., is a partner of Henkel & Cohen, P.A., of Miami. He is a member of the Florida and New York Bars and has been practicing Intellectual Property Law for almost 40 years. Cohen served as judicial law clerk to Hon. Harold J. Raby, U.S. magistrate judge for the Southern District of New York. He is a proud member of the FBA and a Life Fellow of the Foundation of the FBA. Cohen also is deputy chair and a board member of the Intellectual Property Law Section of the FBA.

Endnotes With apologies to Gabriel García Márquez, Gabriel García Márquez, Love in the Time of Cholera (A.A. Knopf ed., E. Grossman trans., 1st Am. ed. 1988).

2 Alexander Pope, An Essay on Man: Epistle I, III, line 19 (1732).

3 Cream, White Room, on Wheels of Fire (Atlantic 1968).

4 Geoffrey Chaucer, Prologue to the Clerk’s Tale (1395).

5 William Shakespeare, Julius Caesar act 4, sc. 3, ls. 245-48 6 Imagine Dragons, Radioactive, on Continued Silence (Interscope 2012).

1

California’s most respected neutrals are now offering mediations nationwide using secure video conference technology.

S I G N AT U R E R E S O LU T I O N .C O M 52 • THE FEDERAL LAWYER • November/December 2020

Notice of Elections for FY2022

2021 Nominations and Elections Committee W. West Allen President and Chair Anh Le Kremer President-elect Christian K. Adams Immediate Past President Kristen R. Angelos Circuit Vice President Dina T. Miller Circuit Vice President Robin B. Wagner Section Chair David A. Greene Division Chair Terence Liley Chapter Representative Kate Simpson Chapter Representative Pursuant to Bylaw 8, Sec. A1, the Nominations and Elections Committee is responsible for administering the procedures applicable to nomination and election of national officers of the Association during the annual election as prescribed in Article V, Section 3, of the Constitution and Bylaw 6. The Committee shall be composed of the President, who shall chair the Committee; President-elect; immediate past-President; two Vice Presidents for the Circuit designated by the President; a Division chairperson designated by the President-elect; a Section Chairperson designated by the President, and two Professional Chapter representatives designated by the President-elect.

The Nominations and Elections Committee (Committee) hereby gives notice that there will be an election for the following officers of the association for the fiscal year beginning October 1, 2021: President-elect; Treasurer; one Director who is a past or present Vice President for the Circuits; one Director who is a past or present Section or Division Chair; one Director who is a past or present chapter president; one Director who is, at the time of his or her election to the Board, age 40 years or younger; one Vice President for each of the 12 circuits; and the Delegate to the ABA House of Delegates. Please review specific qualifications for each position at www.fedbar.org/qualifications.

All officers will assume their elected position on October 1, 2021, and serve the following terms: President-elect and Treasurer, one year; four Directors, three years; Delegate to the ABA House of Delegates and Vice Presidents for the Circuits, two years. The incumbent President-elect will automatically succeed the incumbent President on October 1, 2021.

Under Article V, Section 3 of the FBA Constitution, there are two ways for members to be listed on the ballot: • By nomination of the Nominations and Elections Committee; or • By petition: (1) a candidate for national office must be endorsed by not less than fifty members in good standing; and (2) a candidate for Vice President for the Circuit must be endorsed by not less than twenty members in good standing of chapters and/ or members at large in that particular circuit.

Under Article V, Section 2 of the FBA Constitution, all members of the association at the time of nomination, whose dues are paid for the current fiscal year and who otherwise are in good standing, and meet all other qualifications, as may be required by the Constitution, Bylaws, and policies of the Association, shall be eligible as candidates for any elective office (including directors). The FBA welcomes and encourages diverse individuals to apply for leadership positions.

Nominations Members interested in being nominated for office by the Committee shall complete and submit the FBA Application for National Office along with an electronic resume and photo to W. West Allen, Chair of the Nominations and Elections Committee, at elections@fedbar.org, to be received by February 1, 2021. The Committee shall require, at a minimum, that each candidate provide her/his name; place of professional practice (firm, office, court, agency or other); preferred mailing address; contact telephone number; facsimile number; e-mail address; date of FBA membership; and the title of the office sought. Also, the Application shall provide space for a candidate to provide a biographical sketch of his/her qualifications for the office that should include 1) why he or she is seeking national office (2) a description of the candidate’s FBA activities and leadership positions; (3) professional experience and awards received; (4) other volunteer activities; (5) what is one significant issue

facing the FBA and, as a leader, how would you address the issue? The biographical statement is limited to one page electronic document no larger than 8.5”X11” using 12-point font.

By February 28, 2021, the Committee shall nominate one or more members in good standing for each of the elective offices becoming vacant for the coming term. By April 1, 2021, the Committee shall cause to be mailed or electronically sent to each member in good standing—either in The Federal Lawyer or otherwise—notice of the upcoming annual election and of the offices to be filled therein; of the Committee’s nominations for those offices; and the manner and time by which nominations of candidates may be made by petition as provided in Article V, Section 3.b. of the Constitution and Bylaw 6(C).

Petitions Members who have not been nominated for office by the Committee, but who wish to be placed on the ballot for national office, may do so by delivering to W. West Allen, Chair of the Nominations and Elections Committee, at elections@fedbar.org, a petition, including an Application, specifying the office being sought and bearing the required number of signatures indicated previously. Petitions must be received by April 25, 2021.

Election In accordance with Bylaw 6(D), by June 15, 2021, the Committee shall cause a Notice of Election to be mailed or transmitted electronically to each member of the Association in good standing. The notice shall list the names of all nominated candidates and candidates by petition in alphabetical order under each elective office.

The notice also shall contain such instructions as necessary for members to cast their votes as prescribed by policy adopted by the Board of Directors.

Completed ballots shall be received by the Chair of the Committee or by such person as designated by the Chair no later than June 30, 2021. The Committee shall review and certify the tabulated votes and report as elected the candidate for each office who has received a plurality of the votes cast for that office by July 1, 2021.

In the event that any deadline herein specified is a Saturday, Sunday, or legal federal holiday, the next succeeding business day shall substitute for that specific deadline.

54 • THE FEDERAL LAWYER • November/December 2020

Has Comcast Altered the Standards for Pleading Civil Rights Claims?

STEPHEN M. DANE

O

ne of the Supreme Court’s civil rights decisions of the 2019 term involved the question of what standard of causation applies to claims asserted under the Civil Rights Act of 1866, 42 U.S.C. § 1981, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media.1 The Ninth Circuit had concluded that a § 1981 plaintiff must only plead and prove that race discrimination played “some role” in the defendant’s decision-making process, whereas other circuits had concluded that to be actionable under § 1981, racial prejudice must be a “but-for” cause of the defendant’s decision. The Supreme Court resolved the issue by concluding that the text and history of § 1981, considered alongside the general common law of torts, requires a plaintiff to initially plead and ultimately prove that, “but for” race, the plaintiff would not have suffered the loss of a legally protected right under § 1981.2

Although much attention has been paid to the doctrinal outcome of the Court’s holding, little attention has been paid to the procedural posture of the case, and more specifically to certain language in the Court’s opinion that seemingly contradicts well-established principles of pleading. The Court had much to say about what a plaintiff must “plead” about causation to survive an early motion to dismiss, but without referring to any of the civil rules that apply to pleadings.

Comcast Suggests That “What Must Be Proved Must Be Pled”—But Without Authority The issue came to the Court at a very early stage of the case—an appeal of a motion to dismiss filed under Rule 12(b)(6).3 While focusing almost exclusively on the role that “causation” plays in proof of § 1981 claims, the Court had some alarming things to say about pleading practice. Throughout its opinion, the Court repeatedly equated the standards applicable to pleading claims of discrimination under § 1981 with those applicable to proof of those claims, as if the same rules applied to both. For example, the Court wrote: • “ Few legal principles are better established than the rule requiring a plaintiff to establish causation. In the law of torts, this usually means a plaintiff must first plead and then prove that its injury would not have occurred “but for” the defendant’s unlawful conduct.”4 • “Normally, too, the essential elements of a claim remain constant through the life of a lawsuit. What a plaintiff must do to satisfy those elements may increase as a case progresses from complaint to trial, but the legal elements themselves do not change. So, to determine what the plaintiff must plausibly allege at the outset of a lawsuit, we usually ask what the plaintiff must prove in the trial at its end.”5 • “[The plaintiff ] appears to concede that a § 1981 plaintiff does have to prove but-for causation at trial, but contends the rules should be different at the pleading stage.”6 Yet Comcast never once mentioned or referred to the Federal Rules of Civil Procedure governing pleading, or any of the Court’s prior opinions interpreting how those rules are to be applied in discrimination cases alleging civil rights violations. Titles II and III of the Federal Rules of Civil Procedure set forth the standards November/December 2020 • THE FEDERAL LAWYER • 55

applicable to “Pleadings,” including but not limited to their contents, their adequacy, when special rules are applicable to specific types of claims, and the grounds on which they can be challenged as deficient. In its previous opinions interpreting and applying the pleading rules, the Court has repeatedly distinguished between the standards governing pleading a cause of action and the rules governing the proof necessary to establish a discrimination claim at trial.

What Comcast Does Say Conflicts With the Court’s Opinions Interpreting the “Pleading Rules” According to the Court’s prior opinions, the pleading standards set forth in Rule 8 require only fair notice of what the “plausible facts” are that form the basis of the claim. But Rule 8 does not require the application of evidentiary standards of proof or any exposition of legal argument or recitation of legal elements that may be applicable later in the proceedings, such as at summary judgment.

For example, in Swierkiewicz v. Sorema N.A.,7 which involved discrimination claims under Title VII and the Age Discrimination in Employment Act, the issue presented was “whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the framework set forth by this Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” In a unanimous opinion based on a plain reading of Rule 8, the Court answered this question in the negative: “We hold that an employment discrimination complaint need not include such facts and instead must contain only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ Fed. Rule Civ. Proc. 8(a).” The Court arrived at this conclusion by observing that the prima facie case formulation set out in McDonnell Douglas “is an evidentiary standard, not a pleading requirement:”8 “This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss. For instance, we have rejected the argument that a Title VII complaint requires greater ‘particularity,’ because this would ‘too narrowly constric[t] the role of the pleadings.’”9 The Court also indicated that under the “notice pleading” system established by the Federal Rules of Civil Procedure, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case of discrimination. “This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.”10 Given that the prima facie case operates as a flexible evidentiary standard, the Court said, it should not be transposed into a rigid pleading standard for discrimination cases.11 The Court again had occasion to interpret and apply Rule 8 in the civil rights context in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Iqbal presented a Bivens claim of alleged unconstitutional discrimination because of race, religion, or national origin. Here, the Court focused on the factual plausibility of a complaint to survive a motion to dismiss and rejected the reliance on bare formulaic recitations of the “elements” of a claim: “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to 56 • THE FEDERAL LAWYER • November/December 2020

relief that is plausible on its face. A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ will not do. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”12 The Court went on to explain that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”13 The Court once more eschewed reliance on pleading the elements of any specific legal theory in Johnson v. City of Shelby, 574 U.S. 10 (2014). The plaintiffs in Johnson claimed their constitutional rights had been violated by the defendant but did not cite any specific statute in support of their claims. In a unanimous per curiam opinion, the Court held that a plaintiff need not allege any specific legal theory in order to survive a motion to dismiss, so long as the facts alleged will support a claim under some theory. Once again, looking to the plain language of Rule 8, the Court observed that “federal pleading rules … do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”14 Rather, the Court explained, its decisions in Bell Atlantic Corp. v. Twombly15 and Ashcroft v. Iqbal concerned what factual allegations a complaint must contain to survive a motion to dismiss.

In Johnson, having informed the defendant of the factual basis for their complaint, the plaintiffs “were required to do no more” in order to stave off threshold dismissal for want of an adequate statement of their claim, citing Rules 8(a)(2) and (3), (d)(1), (e).16 Taken together, the Court’s prior rule-based opinions make clear that the facts alleged in the complaint are important to withstand dismissal at the outset of a lawsuit, whereas the inclusion of labels, legal elements, or conclusions is not.17 Comcast makes no mention of these principles. Indeed, Comcast never cites to any of the Federal Rules of Civil Procedure, including the pleading standards contained in Rules 8 through 12. In sharp contrast to its previous discouragement of “a formulaic recitation of the elements of a cause of action,”18 the Court in Comcast did indeed reverse the Ninth Circuit because of the plaintiffs’ failure to articulate the correct legal formulation of causation, presumably an “essential element” of their legal theory under §1981.

The Court made no attempt to evaluate whether the facts alleged in the complaint were sufficient to state “any claim” for relief; instead, the Court remanded the case back to the Ninth Circuit to determine whether the complaint contained sufficient facts “under the but-for causation standard.”19 Comcast calls into question how the Court’s prior opinions applying Rule 8 are to be squared with Comcast’s unequivocal merging of “pleading” and “proof.” The text of Rule 8 contains no such merging principle and is completely silent on the notion of “proof ” or “causation” or the pleading of “elements” of a cause of action. By requiring “what the plaintiff must plausibly allege at the outset of a lawsuit” to be the same as “what the plaintiff must prove in the trial at its end,” Comcast appears to impose far more exacting pleading requirements than the Court’s prior rule-based opinions demand.

Conclusion In its haste to resolve a purported conflict among the circuits involving the proper substantive interpretation of §1981, the Court in Comcast has inadvertently triggered a different conflict of its own making.

Its cavalier use of language melding standards of pleading and proof is confusing in light of its own rules-based precedent.

There are several possible explanations for this. One could be that the question presented, and that the Court agreed to consider, was not really about the rules of pleading, but was about the standard of causation under §1981, which would make the references to proper forms of pleading mere dicta. But the question presented did include a reference to “pleading” causation, and the Court did reference at least one of its prior rules-based decisions in its opinion, so the “mere dicta” argument is hard to reconcile. Another possible explanation is that the Court fully intended to impose a heightened level of pleading in civil rights cases—despite its denials to the contrary in prior opinions—and took the opportunity to move aggressively in that direction. This conclusion, however, assumes a level of intellectual deception that would be wrong to attribute the Court, particularly when so many of its liberal members signed on to the opinion. Rather, a more likely explanation is that the Court’s loose language is an unintended byproduct of inadequate research and careless drafting.

But words matter, and words written into Supreme Court opinions matter even more. Lower courts in the future will no doubt struggle to reconcile the Supreme Court’s “what must be proved must be pled” language in Comcast, with the substantial body of case law applying the plain language of Federal Rule of Civil Procedure 8, especially in civil rights cases, where motive, intent, or impact are frequently proven only by inference and circumstantial evidence.  Stephen M. Dane is a former federal appellate law clerk with over 38 years of civil litigation experience, most recently as a plaintiff-side civil rights lawyer. He is also editor of the FBA’s Civil Rights Law Section newsletter, Civil Rights Insider. His complete background and biographical information are available at www. fairhousinglaw.com. He thanks Professor Robert Schwemm and civil rights lawyer Christopher Brancart for helpful discussions and insights about the broader implications of the Comcast decision.

Endnotes Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009 (2020).

2 Id. at 1018.

3 Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, No. CV 15-1239, 2016 U.S. Dist. LEXIS 197757 (C.D. Cal. Oct. 5, 2016).

4 140 S. Ct. at 1013 (emphasis added).

5 Id. at 1014 (citing Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992); Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346-47 (2005); Ashcroft v. Iqbal, 556 U. S. 662, 678-79 (2009)) (emphasis added).

6 Id. (emphasis added).

7 Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)..

8 Id. at 510.

9 Id. at 511 (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283, n.11, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976)).

10 Id. at 512.

11 Id. 12 Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (Sherman Act case)).

13 Id. See also Erickson v. Pardus, 551 U.S. 89, 90 (2007) (vacating and remanding a decision of the Tenth Circuit that “departs in so stark a manner from the pleading standard mandated by the Federal Rules 1

of Civil Procedure”).

Johnson v. City of Shelby, 574 U.S. 10, 11 (2014). See also Skinner v.

Switzer, 562 U.S. 521, 530 (2011) (“Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible ‘short and plain’ statement of the plaintiff ’s claim, not an exposition of his legal argument.”)..

15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Although not a civil rights case, Twombly itself recognized that under Rule 8(a) (2) a well-pleaded complaint need only allege “enough fact to raise a reasonable expectation that discovery will reveal evidence” of the proof necessary to establish a violation of the statute at issue. Id. at 555 (emphasis added).

16 574 U.S. at 12. For additional comparison, see Leatherman v.

Tarrant Cty Narcotics Intel. & Coord. Unit, 507 U.S. 163 (1993), in which Chief Justice Rehnquist, writing for a unanimous court, chastised the Fifth Circuit for adding a “particularity requirement” into Rule 8 for civil rights claims against municipalities. The Rule requires no more than “fair notice” of the basis for a claim, and “federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.” Id. at 168-69.

17 In Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015), the Court held that disparate impact claims are cognizable under the Fair Housing Act, 42 U.S.C. §§ 3601-3631.

Although procedurally the case had reached the stage of summary judgment and did not involve an interpretation of the Civil Rules, in one sentence of its opinion the Court suggested that a plaintiff would need “to allege facts at the pleading stage” demonstrating a causal connection sufficient to “make out a prima facie case of disparate impact.” 135 S. Ct. at 2523. Despite the facial inconsistency of this statement with the holding of Swierkiewicz, which flatly rejected the requirement to plead the elements of a prima facie case of discrimination, note the emphasis on the pleading of “facts,” as distinct from labels or legal requirements..

18 Ashcroft v. Iqbal, 556 U. S. 662, 677 (2009).

19 Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009, 1019 (2020).

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58 • THE FEDERAL LAWYER • November/December 2020

A Lasting Legacy: The Impact of Six Great Jurists on the Bench and Bar LEO A. LATELLA

W

illiam J. Nealon, Richard P. Conaboy, William W. Caldwell, Edwin M. Kosik, A. Richard Caputo, and James M. Munley1 served as U.S. district judges for the Middle District of Pennsylvania Court for a combined 212 years. They shaped and formed our court and made significant contributions to the development of the common law of our nation. Individually, their service and contributions to federal jurisprudence can only be described as legendary. Hon. John E. Jones III, chief judge of the Middle District of Pennsylvania, described their combined contribution to the district as “incomprehensible” and the loss to the court by their passing as “devastating” on both a personal and professional level.

They were members of what has been described as the greatest generation and were all remarkable men. Each had outstanding accomplishments too numerous to detail. The Federal Building in Scranton, Pa., bears the name of William J. Nealon. Judge Conaboy’s visionary leadership as chair of the U.S. Sentencing Commission directed the course of federal drug sentencing for decades after his service. Even outside of their contributions to the federal judiciary, they improved American society through distinguished military service, tenure on the courts of the Commonwealth of Pennsylvania, and leadership in numerous civic and charitable organizations.

Chief Judge Jones’s description of the importance that these men had in the federal judiciary is fitting; it is simply “incomprehensible” and beyond description. Yet, above all of their truly remarkable professional accomplishments and achievements, perhaps the most significant impact that they had was on the lives of those of us who were fortunate enough to know them. Chief Judge Jones spoke of the need for mentors, people who believe in us and guide us. These great

judges came into the lives of hundreds of their law clerks, support staff, lawyers, and litigants who appeared before them. Those of us lucky enough to have felt their impact were changed forever by our experiences with them. Their influence created better judges, lawyers, and professionals. Most importantly, however, as result of their influence on us, we became better human beings.

I had the unique good fortune of having five of these incredible men as my mentors over the years and the truly beautiful experience of having been a law clerk, and later like an adopted son, to the greatest man that I will likely ever know, William J. Nealon. Through my close relationship with Judge Nealon, I developed strong bonds with Judges Conaboy, Kosik, Munley, and Caputo. They formed me, shaped my view of the law and my role in it, and modeled who I aspire to be as a human being. I would like to share my stories of these incredible men along with the experiences of some of my colleagues and our judges, who each in our own way are better for having had them come into our lives.

November/December 2020 • THE FEDERAL LAWYER • 59

Judge William J. Nealon My first experience with federal court, or any court for that matter, was as a law school intern in the in Federal Public Defender’s Office in 1992.

My very first courtroom experience was watching a sentencing before Judge Nealon; I can recall the experience as if it happened yesterday. Retired Magistrate Judge Thomas M. Blewitt, then an assistant federal public defender, represented the defendant. The courtroom was packed with supportive family, and Judge Blewitt effectively argued the human aspects of the case and the impact that incarceration would have on the defendant’s family. Assistant U.S. Attorney John Gurganus represented the government and effectively argued the impact that the defendant’s drug trafficking had on the community. I sat in awe watching the Solomon-like white haired judge sit patiently and attentively through the arguments. His facial features revealed that he was thinking but not what he was thinking. When he spoke, he lived up to his iconic reputation. It was not a good day for the defense, but Judge Nealon addressed every argument carefully and prefaced his discussion with “while I have great respect for Mr. Blewitt ….” He treated the defendant, the lawyers, and everyone else in the courtroom with genuine respect. While not all might have agreed with his decision, it was clear, even to a defendant who received a heavy sentence, that Judge Nealon’s decision was fair, well thought out, and a true balance between justice and mercy. I walked out of that courtroom viewing Judge Nealon as little less than a god; at the time it was unthinkable that two years later I would be his law clerk.

A few years ago, a bracelet with the inscription WWJD (what would Jesus do) was popular. As I live my daily life, every action of consequence that I take is made, whether consciously or unconsciously, with Judge Nealon at the front of my thoughts. In discussing a delicate matter or offering a complicated thought or opinion, I have occasionally received the feedback, “of course that’s what you would think, it is what Judge Nealon would say.” Those are the moments when I feel most proud of myself and know that Judge Nealon lives on inside of me and the hundreds of others that he inspired. Judge Nealon took me on as a mentee, later as a protégé, and toward the end of his life he treated me like a son. Every meeting ended with a hug and him saying “I love you my friend.” It is unthinkable that such a great man would be so sensitive, so humble, so kind, and so loving and giving. Perhaps that is precisely why he was such a great a man.

Former Nealon law clerks have had many significant accomplishments—one became a Third Circuit judge, another was secretary of the Commonwealth of Pennsylvania—but I think what Judge Nealon wanted most from us was that we comported ourselves with the values that he cherished: honesty, integrity, kindness, hard work, loyalty, a sense of justice, and, perhaps above all, humility. Judge Nealon was the gold standard for a judge. He has received many well-deserved tributes over the years that I will not catalogue here.

As someone who was privileged to be so close to him, I can say that it was his humanity that struck me most. He was a model human being.

While attempting to emulate him is attempting to reach an unattainable standard, we are so much better for making the attempt. It is not surprising that Chief Judge Jones described Judge Nealon as “an iconic figure,” saying that sitting on the same bench as Judge Nealon made him feel “like playing outfield with Mickey Mantle.”

Hon. Malachy E. Mannion tried countless cases before Judges Nelson, Conaboy, and Kosik as an assistant U.S. attorney and then joined 60 • THE FEDERAL LAWYER • November/December 2020

them as a colleague on the bench, first as a magistrate judge and then as a district judge. Judge Mannion, who embodies some part of each of these men he calls his mentors, probably tried more cases before Judge Nealon than anyone. He admired everything about him but especially his preparation. He stated, “I never had a case, civil or criminal, before Judge Nealon that I did not think he was the most prepared person in the room … including the litigants who lived the case. It was always clear that he read everything submitted, understood the issues and law and would realistically apply them to the real-world situation.” Every time Judge Mannion points out a nuance in one of my cases that I missed, I think he is channeling Judge Nealon.

Judge Richard P. Conaboy Very early on in my career in the Federal Public Defender’s Office, I received a call from Judge Conaboy’s chambers and was told that the judge wanted to see me. My first reaction, of course, was fear. I had a particularly difficult client who was writing letters to the judge about me, and I was concerned that they had impacted him—which is precisely why he called me into his chambers.

He sat me down like a grandchild and said; “Leo, I don’t want you to get discouraged. Your clients come from difficult backgrounds, many do not have any education, and some have mental health problems.

I know you are working hard, don’t get discouraged.” The fact that Judge Conaboy would take the time to even consider how I might have been impacted by those letters, or care that I might be discouraged, speaks to his high level of empathy, kindness, and genuine concern for others. How does one ever repay that? I would like to think that, like Judge Conaboy, when a colleague, an intern, or a student appears discouraged, I would take the time to notice and give a kind word, paying forward the kindness that Judge Conaboy showed to me. Having served as special counsel to the U.S. Sentencing Commission and having practiced before Judge Conaboy for years, I know well the very significant impact he had on federal sentencing policy on a national level and recognize that he was truly an iconic judge. Yet, despite all his great accomplishments, to me, he will always be the kindly man who went out of his way to give me some words of encouragement when they were needed.

Thomas Daniel Brown, who served as one of Judge Conaboy’s first law clerks, and later as senior counsel at the U.S. Sentencing Commission while Judge Conaboy was its chair, shared that “just being around him made you a better lawyer and a better person.” He said, “Judge Conaboy was the consummate gentleman. He treated everyone he encountered with the utmost civility and respect. As a jurist, he had a remarkable ability to make people feel at ease. He was very concerned that all litigants who came before him left his courtroom believing that they had been treated fairly and that the law had been applied correctly to their situation. This reflected his belief that public respect for the law is crucially important to an orderly society.” Brown had the honor of being a decades-long protégée and friend to Judge Conaboy and adopted many of his characteristics. Chief Judge Jones stated that Judge Conaboy reinforced how special it was to be a judge and frequently reminded him how “blessed and lucky” they were to hold those positions that came with such heavy responsibility. Judge Mannion remembers Judge Conaboy often telling him that sentencing was the most difficult aspect of a judge’s job. Judge Mannion stated, “I didn’t appreciate how that could be at the time, as an advocate. Now I completely understand that trying to come up with the most just result for all parties is an

extremely difficult task. Further, as a prosecutor, I remember being in disagreement with Judge Conaboy on many of his sentences. Despite that, I never once felt he was not genuinely applying the sentencing factors that he felt were most appropriate.” Judge Mannion concluded by describing Judge Conaboy with two words: “true integrity.”

Judge Edwin M. Kosik It was often said that if Judge Kosik criticized you, it meant that he liked you. I was frequently the recipient of that form of “affection.” Judge Kosik’s style was unique. Like the others, his reputation as a jurist was outstanding. He had an impressive army career, service on the Lackawanna County Court of Common Pleas and a distinguished tenure on the Middle District of Pennsylvania Court, including the handling of cases that were high-profile both nationally and internationally. Judge Kosik was known for efficiency; lawyers needed to be prepared and concise and stay on point. Judge Kosik demanded much from the lawyers who appeared before him, and those that he knew and respected were held to an even higher standard. He believed in integrity and competence and fostered it in others.

I will always appreciate the standard to which Judge Kosik held me and his way of communicating it when I missed the mark. Yet, what I will remember most about Judge Kosik is that, at his core, he was a kind, good, and gentle man. Our true personality is revealed when we are most frail and vulnerable. I had the honor of visiting Judge Kosik several times toward the end of his life, and all he radiated was gentleness.

Kimberly Kalita served as a U.S. probation officer in Scranton for 11 years before accepting a promotion in the Eastern District of Pennsylvania. She recalled that Judge Kosik was a frequent visitor to her office and always offered some good-natured teasing. “Well, I see you’re not working” was a catch phrase. She described her last day in the Scranton office with tears. Judge Kosik, in his frank and concise manner, looked her in the eyes and said, “I want you to know how much I respect you and that I will miss you.” He might have teased those he cared about, but when it was time to let you know that he believed in you, he did, and in a manner in which only Judge Kosik could.

U.S. Magistrate Judge Karoline Mehalchick practiced before Judge Kosik for 11 years and was his colleague on the bench for nearly six years. She remembers that practicing in front of Judge Kosik meant always knowing where you stood. You knew his estimation of your case and your skills as a lawyer. She describes him as “pulling no punches in his questions to counsel. And you always knew when you had gone on too long in any presentation when he started tapping his pen on the bench.” Those of us who practice before her know that Judge Mehalchick has occasionally adopted that habit. Judge Mehalchick was impacted by something that Judge Kosik once wrote in one of his most important public corruption cases involving two state court judges.

He said that “integrity is the lot and proper virtue of judges.” Judge Mehalchick stated that “Judge Kosik practiced what he wrote—in my experience as an attorney practicing before him, and in the six years I was able to call him my friend and colleague on the bench, I never doubted his genuineness or his desire for the correct result for justice.”

She shared that “Judge Kosik’s judicial integrity was inspiring as a practicing lawyer, and it is something I strive for every day on the bench.”

Chief Judge Jones aptly noted that Judge Kosik was “one of a kind” who took his position “to heart.” He described Judge Kosik as “a good man with a steady hand.” Judge Mannion spoke of Judge Kosik with a tone of pure affection in his voice and a smile. He said,

“Judge Kosik was sometimes impatient and sharp with counsel. It was not unheard of for counsel to argue rather vociferously with him. Some judges would take that as disrespectful or unprofessional.

Judge Kosik always made a point of not holding a grudge. One could vehemently disagree with him today and it was ‘water under the bridge’ tomorrow. No grudge, new day, new start.”

Judge James M. Munley Judge Munley will be universally remembered, above all things, for his kindness. Chief Judge Jones called him the “spirit of the Court.” I cannot recall one encounter with Judge Munley where he did not look at me directly with his friendly and kind eyes and ask “everything good? How’s your father?” His sincerity was palpable. Judge Nealon often told the story of being at mass with Judge Munley in Florida. A gentleman approached Judge Munley and said, “Jimmy, it’s time for us to do the collection” and the two affably went off as if old friends. After the mass, when Judge Nealon asked the gentleman how long he knew “Jimmy,” the man responded, “I just met him.” That was Judge Munley. I had a similar experience on a trip to the Metropolitan Opera with a small group from Scranton. We were invited back stage by a cast member who Judge Munley befriended in the parking lot. Assistant U.S. Attorney Sean A. Camoni beautifully described his mentor as “a judge down to his bones.” He added, “Judge Munley loved it. And one of the parts he loved best was his people.

His deputy and head clerk were with him for years, and they were all fiercely loyal to each other. Being welcomed into that chambers was a closely guarded honor, like being invited into a family. And once you were in, it was for life. The smile of pride he showed every time I appeared before him after becoming an AUSA was really something. I honestly would not be where I am without him. I miss him.”

Like many that Judge Munley befriended, Judge Mannion enjoyed a special relationship with him. He described him as a “lawyer’s judge.”

Summarizing what so many thought of Judge Munley, Judge Mannion recounted, “He cared deeply about the profession and counsel in the profession. He was always looking out for counsel making sure not to embarrass them even if embarrassment could have been appropriate.

He treated people with courtesy and loved to speak with everyone.”

Judge Mannion joked that “Judge Kosik often complained it took longer to get to and from lunch with Judge Munley than the lunch itself because of all the stopping and talking he would do along the way.”

Judge A. Richard Caputo Judge Caputo was known as an intellectual powerhouse, among many other admirable characteristics. Chief Judge Jones remembered often discussing his most difficult cases with Judge Caputo. He described Judge Caputo as a “special friend” who gave much of his time and advice to his colleagues.

His former law clerk, Jenny Randall, a senior attorney at the Social Security Administration, said, “Judge Caputo had a deep respect for the Constitution and a genuine interest in other people. He improved those around him and his legacy continues in the many lives that he touched.”

She shared, “Working with him, I learned to consider different perspectives, look at all sides of an issue, and reevaluate initial assumptions— lessons I still find valuable today.” Judge Mannion said the following of Judge Caputo: “Judge Caputo had an honesty and forthrightness about him that was enviable. Never afraid to take a stand, even if seemingly November/December 2020 • THE FEDERAL LAWYER • 61

unpopular, if it was the correct thing to do. He believed the law was above all and must be followed. One would never ask a question of Judge Caputo that you really didn’t want an honest, direct and truthful answer to. He didn’t sugar coat it, you just got the cold, hard truth.”

I gained similar perspective practicing before Judge Caputo for a decade and a half but saw him from a different perspective when he joined the gym that I had been going to for years. We were there the same time every day, just before work. At the gym, Judge Caputo was just “Rich” to everyone. He was a friendly older gentleman who used the same stationary bike at the same time every day. Most members had no idea that he was a judge, let alone such a high caliber judge. I was stunned at the diversity in personalities that were drawn to that bike to chat with “Rich”; they might not have known who he was or what he did, but they instinctively knew that he was someone special. My relationship with Judge Caputo was the most complicated of those who mentored me. While there was always an appropriate professional distance between a judge and a lawyer practicing before him, some of the most intimate and intensely personal conversations I have had in my life were with Judge Caputo. In the same way he behaved on the bench, he was an intensely patient and interested listener; he then freely gave personal advice, insight, and wisdom. Judge Caputo was one of the most empathetic men that I have known, and he always quietly considered every aspect of an issue, personal or professional, before forming and offering an opinion. His absence created a void in my life impossible to fill. It astonishes me to think to that the empathetic gentleman always willing to give of his time, to listen and offer heartfelt and sound advice, was also one of the greatest jurists in the nation. His long-time judicial assistant and courtroom deputy, Dawn Wychock, said it best: “There will never be another. The Judge always had an ‘open-door policy.’ He was totally approachable and always there to listen whether I needed personal advice or simply wanted to share a story about my kids. He was a mentor to me in every sense of the word, especially in life. What he has taught me over thirty years is a very large part of the person I am today.”

lawyer, and when he asked me those questions, it was not to make small talk, but instead it was because he genuinely cared about the well-being of others, particularly the lawyers who appeared in front of him.” What she found most astounding and really inspiring about Judge Caldwell was his courage. She says, “He found a way to get to the right result” and describes him as “the most courageous judge I’ve ever met.”

U.S. Magistrate Judge Susan Schwab describes Judge Caldwell as a “consummate gentleman.” She shared that when she was recovering from cancer, Judge Caldwell would call her on a regular basis, and as soon as she was strong enough, he invited her to his home for tea.

She spoke with both great affection and respect when discussing how supportive Judge Caldwell was to her during a difficult time. Judge Schwab recounted that Judge Caldwell would always ask what she was reading and watching on TV. She said that when he found something interesting, he would make a note to read or watch it later himself. She described him as having an “inquisitive mind” to the end.

The significance of the impact that these men had on federal jurisprudence is inestimable and deserves to be recognized. I will leave it to one of you, more scholarly than I am, to take up the challenge of analyzing their more significant cases and trace their impacts on the development of the law; it would be a fascinating read and a fitting tribute. The tribute that I would like to leave, however, best comes from something written by Pope John XXIII many years ago. He could have had these men in mind when he said: "There is no learning or wealth, there is no human power that is more effective than a good nature, a heart that is gentle, friendly and patient. The good-hearted man may suffer mortifications and opposition, but he always wins through in the end because his goodness is love, and love is all-conquering.

All through life, and especially at its end, the happiest tribute of praise is always the same: 'he was so good, he had such a kind heart.' And his name brings joy and blessing.

Judge William W. Caldwell I never had the honor of meeting Judge Caldwell but have known of his reputation for decades. Chief Judge Jones described him as a “model of demeanor and decorum.” He said he was “unflappable,” making a very difficult job look effortless. Chief Federal Public Defender Heidi Freese had the honor of practicing before Judge Caldwell for 14 years and was one of the many lawyers that he took under his wing. She said that the criminal defense community universally described him as “gentile, egalitarian and compassionate,” and she added “merciful, empathetic and exceptional.” Freese stated that when a client asked what Judge Caldwell was like, she always responded: “You are so lucky. This judge has seen it all. I don’t know what the outcome will be, but I know he will listen to us.” She stated that it did not matter whether a corporate CEO or an impoverished drug addict appeared before Judge Caldwell, every person was treated the same, with respect and dignity. On a personal level, she described Judge Caldwell as “a great role model.” She remembers being incredibly nervous about the first case she was about to try before him, yet, she said “his equal treatment of everyone and control of the courtroom immediately put me at ease. When you were in his courtroom—whether as a juror, a lawyer, a litigant, or court staff—you would be treated with dignity and respect. He was firm but caring.”

She stated, “he taught me that these two traits can co-exist.” Discussing Judge Caldwell’s humanity, Freese shared, “he always took time to ask me how I was doing, how I was managing a family while being a trial 62 • THE FEDERAL LAWYER • November/December 2020

It is a mistake to think that kindness, that is true friendliness, is but a minor virtue. It is a great virtue because it means self-control and a disinterested intention, with a fervent love of justice…

It is the way to attain human and divine perfection."

This is the most fitting and highest final tribute that can be given to these great men. What can, what should, be said about Judge Nealon, Judge Conaboy, Judge Caldwell, Judge Kosik, Judge Caputo, and Judge Munley is this: He was so good, so just, he had such a kind heart, and to know him was a blessing. We best do them honor by embracing their high values and living them and sharing them with others. 

Endnotes Listed in order of their passing.

1

Leo A. Latella is an assistant federal public and operations manager in the Federal Public Defender's Office, Middle District of Pennsylvania. He served as a law clerk to Hon. William J. Nealon for five years, was special counsel to the U.S. Sentencing Commission from 2009-2010, and taught criminal justice and Pennsylvania criminal law at Lackawanna College.

Latella received his J.D. from The Dickinson School of Law in 1993 and an LL.M. from the Temple University School of Law in 2001.

Happy 100th Birthday, FBA!

Enjoy Our Gift to You:

A Reimagined Federal Bar Association Website.

Experience the new site today at www.fedbar.org.

64 • THE FEDERAL LAWYER • November/December 2020

A Land Mine in Rule 12(c) Motions for Judgment on the Pleadings WILLIAM M. JANSSEN

S

everal federal judges have recently shined a light on an often overlooked feature of Rule 12(c)—it comes with a land mine.1 Let me explain through an example. Your client has just been served with a federal lawsuit, and it is clear from the face of the complaint that the claim is time-barred. Your client is convinced she has other defenses as well, including other merits arguments, a strong personal jurisdiction and venue objection, and maybe even a service of process objection. But the time-bar argument looks to be a clean, unambiguous winner. Your particular federal circuit does not permit affirmative defenses (like time-bar) to be contested in a pre-answer motion to dismiss, no matter how clearly it appears on the face of the pleading.

Instead, the proper vehicle for raising that defense in your circuit is a Rule 12(c) motion for judgment on the pleadings. Acutely mindful of the need to preserve your client’s waivable defenses of personal jurisdiction, venue, and service, you dutifully plead them in your answer. (Each of those challenges will require affidavits from your client to set out the supporting factual details, and you are busily assembling those documents now—you envision a Rule 12(i) motion for a prompt hearing on those soon to follow.) But, confident, in your sure-winner time-bar argument, you file your answer and, along with it, you file a Rule 12(c) motion on that statute of limitations defense.

Doing so likely just forfeited all your client’s personal jurisdiction, venue, and service objections.

Why a Rule 12(c) Motions for Judgment on the Pleadings?

For many practicing lawyers, motions for judgment on the pleadings have long been like those fourth-cousins who live somewhere out in the country eight states away—you might be familiar enough to say hello, but you sure wouldn’t be able to keep the conversation

going for long. These motions have not been tools most practitioners dust off all that often (or ever, for that matter). Even the legendary professors Wright and Miller reinforce the point in their masterwork, dismissing Rule 12(c) motions as “little more than a relic of the common law and code eras” with a usefulness that has long since faded as Rule 12(b)(6) and Rule 56 practice evolved.2 This burial of Rule 12(c) is seeming more and more premature these days. Rule 12(c) is having a revival of sorts, and for several reasons. First, with some courts precluding the use of a pre-answer Rule 12(b)(6) motion to press affirmative defenses, a post-answer Rule 12(c) motion is often the most suitable vehicle for raising those types of pleadings-based challenges.3 Second, Rule 12(b)(6) motions are reserved for those from whom a responsive pleading is required (typically, defendants), whereas Rule 12(c) can be used by claimants as well.4 Third, when used by claimants to attack an opponent’s defense, Rule 12(c) is more versatile than Rule 12(f ) motions to strike because it allows a substantive merits challenge to the defense, something Rule 12(f ) case law now increasingly forecloses.5 Fourth, unlike Rule 12(b)(6) motions, which ordinarily are constrained to November/December 2020 • THE FEDERAL LAWYER • 65

the tight, pre-answer time window, Rule 12(c) motions can be filed any time after the pleadings have closed, so long as the filing is “early enough not to delay trial.”6 Fifth, this timing liberality offers clear practice advantages, as the clarity of an attorney’s view of the lawsuit sharpens with greater familiarity, more strategic thinking, and maturing case developments. Sixth, victory on a Rule 12(c) motion ends with a “judgment,” not just a dismissal,7 which could prove more final and less vulnerable to a re-pleading cycle than Rule 12(b) (6) might produce.8 For these reasons, Rule 12(c) motions now seem ascendant in the arsenals of counsel for both federal plaintiffs and defendants. After years sitting neglected in the armory, practitioners appear to have rediscovered Rule 12(c)’s strategic place and unique value in federal litigation. But along with Rule 12(c)’s long period of disuse has come a lack of familiarity and a waning of that wisdom that follows from experience. Not to worry, leading proceduralists counseled: the “continued existence” of this artifact of a bygone age ought not to “present any real difficulty for practitioners or judges.”9 Alas, that surmise has not proven entirely accurate.

Avoiding a Waiver of Defenses—What We Think We Know For many of us, the topic of Rule 12(b) defense waivers takes us uncomfortably back to those overwhelming first-year-of-law-school days. What practitioners learned, or at least think they remember they learned, about Rule 12(b) defense waivers is often just this— there are four waivable Rule 12(b) defenses and objections (personal jurisdiction, venue, bad summons form, and bad service of process), and to be preserved, those must be asserted in a pre-answer motion, if one is filed, or if not, in that party’s answer.

Easy enough, and correct.10 The Advisory Committee Notes to Rule 12 confirm as much: “a defendant who makes a preanswer motion under this rule” is “forbidden,” wrote the committee back in 1966, “from making a further motion presenting any defense or objection which was available to him at the time he made the first motion and which he could have included, but did not in fact include.”11 The “salutary” purpose of this “required consolidation of defenses and objections” is obvious—to avoid “piecemeal consideration of a case.”12 The companion 1966 amendments to Rules 12(g) and 12(h) had been intended to resolve a then-existing ambiguity in the rules that had left the federal courts divided on how Rule 12(b) defense waivers were supposed to work. The amended rule text, wrote the 1966 committee, “eliminates the ambiguity and states that certain specified defenses which were available to a party when he made a preanswer motion, but which he omitted from the motion, are waived.”13 The as-clarified Rule 12(b) defense waivers process seemed simple enough, as did the path of waiver-avoidance. To preserve challenges to personal jurisdiction, venue, bad summons form, and bad service of process, parties must include them in any pre-answer motion they file or, if they file no such motion, plead them in their answer. Failing to do so is a waiver. It’s all very straightforward.

So how is Rule 12(c) implicated in all of this? After all, a Rule 12(c) motion for judgment on the pleadings is not a “pre-answer” motion. Indeed, its very availability hinges on an answer already having been filed.14 It is the quintessential post-answer motion.

Consequently, the Rule 12(b) defense waivers process ought to be irrelevant in the Rule 12(c) context. So long as a party has dutifully preserved its waivable defenses and objections by pleading them in 66 • THE FEDERAL LAWYER • November/December 2020

its answer, the filing of a Rule 12(c) post-answer motion for judgment on the pleadings should pose no Rule 12(b) defense waiver risk.

Right?

Avoiding a Waiver of Defenses—What It Actually Is As it turns out, the 1966 Advisory Committee Note is a bit misguiding. Although the language of the amending committee’s 1966 note is heavily anchored to “preanswer” motion filings, the language of the rule the committee actually wrote is not so limited.

It is true that a party waives its personal jurisdiction, venue, bad summons form, or bad service of process challenges by omitting them from a pre-answer motion (if one is filed) or its answer (if one is not). But waiver can come in another form as well. If a party makes a post-answer Rule 12(c) motion but omits from it any of those same four defenses and objections (if then available), the omitted defenses and objections are waived just as readily.15 And that’s true even if those defenses and objections were dutifully pleaded in the party’s answer.16 That’s the Rule 12(c) land mine.

It’s a land mine not because the language of Rule 12 fails to support that reading. It does. It’s a land mine because getting there takes some assembly work—and because that outcome confounds how many practitioners think about Rule 12(b) defense waivers.

Assembling the Rule 12 Defense Waivers Process The waiver consequence of a Rule 12 motion filing is set out in the rule’s subpart (h); the complicating assembly comes from its internal cross-references to subpart (g). Here’s how the journey works: Step #1: A party waives any defenses and objections to personal jurisdiction, venue, the summons, and service of process it may then have if the party fails to make a Rule 12 motion asserting them or fails to include them in its answer (or an as-of-right amendment to that answer).17 Step #2: Th e failure-to-make-a-motion path becomes significant for waiver purposes because any party who does make a motion under Rule 12 is permitted, by the preceding subpart (g), to join with that motion any other Rule 12 motion that party may then have.18 Step #3: Th at motion-combining right of subpart (g) contains a proscription barring anyone from making a second “motion under this rule” that would raise a defense or objection “that was available to the party but omitted from its earlier motion.”19 Step #4: Th en, the rule in subpart (h), referring back to the second provision of subpart (g), announces that an omission of personal jurisdiction, venue, bad summons, or bad service of process “in the circumstances described in Rule 12(g)(2)” constitutes a waiver of that omitted defense or objection.20 The “circumstances described in Rule 12(g)(2)” mean Step #3, above.

Admittedly, it produces a fairly indirect, circular path to explaining a procedure of federal civil litigation. But it is there just the same.

It may take some untangling, but if you spend the time to work through the assembly process, the meaning appears.

Confounding Our Expected Understanding Yet that meaning tends to compete with practitioner expectations.

It’s just not the way we think about Rule 12. Rule 12 instructs us on when to file a responsive pleading, allows us to raise certain defenses and objections by motion before filing that responsive pleading (and prescribes the mechanics for such motions), and confirms that such early motions postpone the time for filing a responsive pleading, were the motions to fail.21 It also allows us to obtain the court’s help in better understanding a pleading to which we must respond, and to ask the court to strike portions of that pleading (in lieu of responding) when those portions are improper.22 All told, the whole focus of Rule 12—other than Rule 12(c)—is pre-answer litigation obligations, mechanics, and consequences.

Viewed from this perspective, a practitioner’s pre-answer impression of how the Rule 12(b) defense waivers work matches the pre-answer focus that dominates Rule 12. Practitioners see in the rule what they expect to see in the rule. That, in turn, leads to a simplified appreciation of Rule 12(b) defense waivers: if you file a pre-answer motion, it has to be comprehensive; you have to assert all at once your preliminary, threshold objections.

This impression is correct, of course, but also incomplete. It neglects the Rule 12(c) land mine. Why we continue to labor under this incomplete understanding is easy to explain.

First, our pre-answer-only focus aligns with the Advisory Committee’s pre-answer observations about its 1966 amendments to the waiver subpart, as recounted above. Thus, for more than a half century, we’ve been conditioned to think about Rule 12(b) defense waivers in a pre-answer environment. That understanding also comported with sentiments expressed over the years by leading practice specialists.23 Second, our pre-answer-only understanding of Rule 12(b) defense waivers is reinforced by our experience with the motion-combining right codified in Rule 12(g). The motion-combining right teaches us that any motion made “under” Rule 12 may be “joined with any other motion allowed by this rule.”24 Well, that’s just not true about Rule 12(c) motions for judgment on the pleadings. Rule 12(c) motions cannot be joined with Rule 12(b) motions to dismiss (which “must be made before pleading if a responsive pleading is allowed”),25 or Rule 12(e) motions for a more definite statement (which also “must be made before filing a responsive pleading”),26 or many Rule 12(f ) motions to strike (which likewise must be made “before responding to the pleading”).27 To the contrary, Rule 12(c) motions are only timely after a responsive pleading is filed.28 This plain unavailability of Rule 12(c) for motion-combining purposes bolsters our impression of motion-combining as a pre-answer function. So, even a careful practitioner could be forgiven for failing to immediately call Rule 12(c) to mind when thinking through the motion-combining right. And, because the motion-combining right is integral in creating the Rule 12(c) land mine, the ensuing practitioner confusion can follow quite naturally.

Third, into this mix must be folded the motion/answer option preserved by Rule 12(b). Pre-answer motion practice on threshold defenses is permitted, not required. A party may always properly raise those threshold defenses and objections—for the first time—in its answer, entirely omitting the filing of any pre-answer motion.29 Indeed, a party might have good and thoughtful reasons for electing to do so. As hypothesized earlier, a party might believe it has a sound basis to contest personal jurisdiction, venue, process, or service, yet

need more time to marshal affidavits and companion documents essential to support those challenges. In that setting, a motion in the pre-answer timeframe might just not be possible. And, thinking those defenses to be well and safely “preserved” once pleaded in the answer,30 a busy practitioner (who missed the Rule 12(b) defense waivers assembly nuances described above) might actually feel quite sanguine with the decision to simultaneously press a Rule 12(c) motion aimed at addressing some merits issue that appears easily resolved on the pleadings. After all, such a strategy would seem, on a cursory glance, to comport snugly with a rules regime that already allows—without risk or waiver—the pressing of threshold power defenses (jurisdiction, venue, and service) at the very same time as a merits-based failure to state a claim is pressed.31 Thus, the practitioner’s misapprehension is explained. Still incomplete, but understandable.

Practicing More Safely With Rule 12(c) The waiving effect of a Rule 12(c) motion makes perfect sense. Its logic is inescapable as a matter of reason and incontestable as a matter of policy. A party who, by motion, requests a court to enter a dispositive merits judgment in its favor is hard-pressed to deny that it is, by that request, voluntarily submitting to the power of that tribunal to rule. One court called this “constructive consent.”32 That’s apt. It makes little sense to allow a party to ask a court to declare it a winner and yet preserve for that party a fall-back argument that would deny the court’s authority to declare anything at all.33 This logic squares with the Rule 12 defense-assertion regime.

While a court always possesses jurisdiction to decide whether it has jurisdiction,34 the notion of “hypothetical” or “assumed” jurisdiction has been rejected—as least so far as pre-jurisdictional merits rulings are concerned.35 A court must have jurisdiction before it can exercise it. This is why allowing parties to raise (and thus preserve) jurisdiction defenses at the same time as they raise (and thus preserve) alternative merits arguments is prudent and efficient, and not inconsistent with a companion rule that prohibits seriatim motions pressing the court for sequential rulings on threshold power issues.36 The same efficiency concerns also justify precluding follow-on non-jurisdictional venue, summons, and service challenges.37 When unpacked, it is also clear that the Rule 12 waiver syntax is not limited to just pre-answer Rule 12 motions. As one court held: “The problem with th[at] argument is its complete lack of textual support. … The drafters could have done that—inserted the words ‘pre-answer’ or ‘Rule 12(b)’—but did not.”38 The issue here is not with the fairness of this outcome, which is obvious on calm reflection. The issue is that the route needed to discern that outcome can be missed, and not unreasonably so. Textual assembly is needed to get there, and that process often collides with baked-in assumptions we have about the Rule 12(b) defense waiver risk and how it is triggered. The waiver rule even sometimes confuses courts,39 and that is hardly a surprise given oddities it can occasionally produce.40 It may also be that there is no better way to express the procedures codified in Rules 12(g) and 12(h). The 1966 amendments and what prompted them show that the waiver rule is just plain hard to write.

So there it is.

A land mine in Rule 12(c) is hiding in plain sight (well, maybe not “plain” sight). It threatens to ambush those busy practitioners who, while grinding through crowded workdays, find themselves dusting November/December 2020 • THE FEDERAL LAWYER • 67

off Rule 12(c) for the first time. Even though Rule 12(c) is, by its very definition, a post-answer motion, it nonetheless triggers the Rule 12(b) defense waiver process.

Take-Away: Parties waive defenses to personal jurisdiction, venue, the form of summons, or service of process if: (#1) they omit them from any pre-answer motion they file or, if they file no such motion, omit them from their answer; or (#2) they omit them from any motion for judgment on the pleadings they may file—regardless of whether those defenses were preserved earlier in the answer.  William M. Janssen is a tenured professor of law at the Charleston School of Law in Charleston, S.C. He joined the faculty in 2006, after a lengthy litigation practice and partnership at an AmLaw-200 law firm.

Janssen has written, published, and taught extensively in the field of federal civil practice and procedure. ©2020 William M. Janssen. All rights reserved.

Endnotes See Boulger v. Woods, 306 F. Supp. 3d 985, 994-95 (S.D. Ohio 2018) (Boulger I), aff ’d, 917 F.3d 471, 476-77 (6th Cir. 2019) (Bougler II); Broussard v. Texas Dep’t of Crim. Just., 2006 WL 1517532, at *8 (S.D. Tex. May 30, 2006).

2 See 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1369, at 265 (2004).

3 See, e.g., United States v. Rogers Cartage Co., 794 F.3d 854, 860 (7th Cir. 2015) (“[W]e have repeatedly cautioned that the proper heading for such motions is Rule 12(c), since an affirmative defense is external to the complaint”).

4 See, e.g., Mellentine v. Ameriquest Mortg. Co., 515 F. App’x 419, 422 (6th Cir. 2013) (noting filing of Rule 12(c) motion by plaintiffs); Soc’y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1240 (10th Cir. 2005) (same).

5 See, e.g., Red Label Music Publ’g, Inc. v. Chila Prods., 388 F. Supp. 3d 975, 982 (N.D. Ill. 2019) (may only strike “insufficient” defense, not one that is colorable but arguably “a loser on the merits”).

6 See Fed. R. Civ. P. 12(c).

7 See, e.g., Republic Steel Corp. v. Pa. Eng’g Corp., 785 F.2d 174, 177 n.2 (7th Cir. 1986) (Rule 12(c) motions are “directed towards a final judgment on the merits”).

8 See, e.g., Baiul v. NBC Sports, a div. of NBCUniversal Media LLC, 708 F. App’x 710, 714 (2d Cir. 2017) (affirming both with-prejudice Rule 12(c) grant and refusal of leave to amend); DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008) (affirming with-prejudice Rule 12(c) grant).

9 See 5C Wright & Miller, supra n.3, § 1369, at 265.

10 See Fed. R. Civ. P. 12(h)(1)(B).

11 See Fed. R. Civ. P. 12(g) advisory committee’s note to 1966 amendment (emphasis added).

12 See id.

13 See Fed. R. Civ. P. 12(h) advisory committee’s note to 1966 amendment (emphasis added).

14 See Healthcare Ass’n of N.Y. State, Inc. v. Pataki, 471 F.3d 87, 94 (2d Cir. 2006) (Rule 12(c) motion is “impossible” if the pleadings are not closed); Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005) (Rule 12(c) motion filed before answer is premature and should be denied).

1

68 • THE FEDERAL LAWYER • November/December 2020

See Fed. R. Civ. P. 12(h)(1)(A).

See Broussard, 2006 WL 1517532, at *8. See also Boulger I, 306 F. Supp. 3d at 994-95 (waiver procedure “applies to any initial motion ‘under this rule’—i.e., Rule 12 as a whole—and makes no distinction between pre-answer and post-answer motions”).

17 See Fed. R. Civ. P. 12(h)(1)(B)(i)-(ii).

18 See Fed. R. Civ. P. 12(g)(1).

19 See Fed. R. Civ. P. 12(g)(2).

20 See Fed. R. Civ. P. 12(h)(1)(A).

21 See Fed. R. Civ. P. 12(a)(1)-(2); Rule 12(b); Rule 12(d) & Rule 12(i); and Rule 12(a)(4), respectively.

22 See Fed. R. Civ. P. 12(e) and (f ), respectively.

23 See, e.g., 5C Wright & Miller, supra n.3, § 1384, at 479 (“Subdivision (g) contemplates the presentation of an omnibus preanswer motion in which the defendant advances every available Rule 12 defense and objection he may have that is assertable by motion.”) (emphasis added). An earlier version of the same treatise had advised: “Almost since its adoption, Rule 12(g) has been understood to require a party moving under Rule 12 before submitting a responsive pleading to consolidate all Rule 12 defenses and objections that are ‘then available’ to the party.” Id. § 1391, at 499 (emphasis added; footnote omitted; highlighted language now deleted).

24 See Fed. R. Civ. P. 12(g)(1).

25 See Fed. R. Civ. P. 12(b).

26 See Fed. R. Civ. P. 12(e).

27 See Fed. R. Civ. P. 12(f )(2) (except for such motions directed to pleadings for which no response is allowed).

28 See Lillian B. ex rel. Brown v. Gwinnett Cty. Sch. Dist., 631 F. App’x 851, 853 (11th Cir. 2015) (“Because a party may not move for judgment on the pleadings until the pleadings are closed, the district court should have denied [that] … motion as procedurally premature” because “that’s what Rule 12(c) unambiguously requires”).

29 See Rule 12(b). See generally 5B Wright & Miller, supra n.3, § 1353, at 339-40 (“The defendant may present objections to the insufficiency of the process or the insufficiency of the service of process in the answer, provided he or she has not advanced any other Rule 12(b) defense by pre-answer motion.”) (footnotes omitted).

30 See Fed. R. Civ. P. 12(h) (subpart title: “Waiving and Preserving Certain Defenses”).

31 See Fed. R. Civ. P. 12(b) (“No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.”). See generally Lindberg v.

Dimon, 2019 WL 2145466, at *9 (D.S.D. Feb. 12, 2019), adopted, 2019 WL 1460644 (D.S.D. Mar. 27, 2019), aff ’d, 792 F. App’x 412 (8th Cir. 2020) (summarily rejecting argument that movant waived personal jurisdiction challenge by pairing it with motion for dismissal on merits for failing to state a claim).

32 Boulger II, 917 F.3d at 477.

33 See id. at 477-48 (holding that moving for judgment on the pleadings showed that movant “sought to have the district court use its power over the parties to reach a decision on the merits, and required the court to expend significant efforts in doing so” which, in turn, “created a reasonable expectation that [movant] would defend the suits on the merits”).

34 See United States v. United Mine Workers of Am., 330 U.S. 258, 292 n.57 (1947).

35 See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999).

15 16

See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (federal courts enjoy “leeway” to select among multiple asserted threshold grounds (e.g., personal jurisdiction, venue) for “denying audience to a case on the merits”) (citations omitted).

37 See Fed. R. Civ. P. 12(h) advisory committee note (1966) (“A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job.”).

38 See Miss. ex rel. Hood v. Entergy Miss., Inc., 2017 WL 2973998, at *2 (N.D. Miss. July 11, 2017).

39 See, e.g., id. at *1 ([A]fter very skillfully “[e]liding and combining the relevant language,” the court incorrectly summarized Rule 12 as resulting in a waiver of a personal jurisdiction defense if “[a]ny one” of the following occurred: failing to include it in a first Rule 12 motion, failing to bring any Rule 12 motion, or failing to include it in an answer; since no party is required to bring a Rule 12 motion in order to preserve this defense, a failure to pursue this middle course does not necessarily produce the defense’s waiver.).

40 Compare Sternberg v. Langston, 2019 WL 5426480, at *3 (E.D. La. Oct. 23, 2019) (holding that because Rule 4(m) “authorizes a motion by its own terms,” an out-of-time service objection asserted on a motion bearing a “Rule 4(m)” label will not trigger the waiver procedure), with Craig v. Crowley, 167 F.R.D. 67, 68 (N.D. Ind. 1996) (holding that Rule 4(m) motions should be made under Rule 12(b)(5), otherwise “the waiver provisions of Rule 12(h)(1) could be easily dodged, obviously not the intent of Rule 4(m)”).

36

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November/December 2020 • THE FEDERAL LAWYER • 69

Book Reviews

In Hoffa’s Shadow: A Stepfather, A Disappearance in Detroit, and My Search for the Truth

By Jack Goldsmith Farrar, Strauss & Giroux, New York, NY (2019) 368 pages, $28.00

Reviewed by Thomas A. Doyle

In one of the great mysteries of the 1970s, Jimmy Hoffa disappeared without a trace in the summer of 1975. His disappearance has never been solved.

The long lead-up to his disappearance is familiar. In the 1950s, early in Hoffa’s tenure as president of the International Brotherhood of Teamsters, Hoffa famously feuded with Robert Kennedy, who was legal counsel to a Senate committee that was investigating corruption in organized labor.

The feud continued after Kennedy became attorney general in the 1960s. As Kennedy chased Hoffa with corruption investigations, Hoffa led the union to many organizing and bargaining victories. For example, in 1964, the Teamsters negotiated their first National Master Freight Agreement, which

covered nearly all of the freight drivers in the United States.

After several failed prosecutions, the government finally prevailed against Hoffa in 1964, garnering convictions for bribery and fraud. In 1967, Hoffa reported to prison, where he would serve almost five years of a 13-year sentence. While in prison, Hoffa surrendered his presidency of the Teamsters union. When Hoffa was released in 1971, he started a multi-front battle to regain leadership of the Teamsters, fighting in the courts, press, and broader political arena.

On the afternoon of July 30, 1975, Jimmy Hoffa went missing. He was last seen at a restaurant in Bloomfield Township in suburban Detroit, where he was scheduled to meet with two organized crime figures. He was legally declared dead in 1982. In the last 40 years, there have been countless books about Jimmy Hoffa.

And now, Harvard Law Professor Jack Goldsmith has weighed in, with In Hoffa’s Shadow: A Stepfather, A Disappearance in Detroit, and My Search for the Truth.

Goldsmith has written an engaging memoir, telling a compelling story of how the Jimmy Hoffa saga has impacted his own life.

Since childhood, Goldsmith has had an indirect family connection to the late Teamsters’ president. Goldsmith’s stepfather is Charles (Chucky) O’Brien, who was one of Hoffa’s closest aides at the Teamsters.

O’Brien was a devoted stepfather, doting on his wife and stepchildren. O’Brien was also a colorful storyteller, always combining charm with exaggeration, while never spilling secrets.

Chucky O’Brien had risen to a senior position in the Teamsters based on his hard work and street smarts. But O’Brien was rough around the edges. He dressed and spoke like someone who worked in the trucking industry. He had close friends who were organized crime figures. O’Brien did not trust the government, and he constantly preached that prosecutors had abused their power in pursuing Hoffa. After Hoffa’s disappearance, some in the government believed that O’Brien had been Hoffa’s driver that day in 1975, delivering Hoffa to his execution.

70 • THE FEDERAL LAWYER • November/December 2020

Investigators dogged O’Brien for years.

O’Brien consistently denied any involvement in, or knowledge of, Hoffa’s death.

All of those facts about O’Brien—along with Hoffa’s looming, oversized shadow— impacted Goldsmith in surprising ways. And in In Hoffa’s Shadow, Goldsmith recounts how Hoffa and O’Brien changed the course of his life and career.

First and foremost, In Hoffa’s Shadow is a history book. In great detail, Goldsmith describes how Hoffa and O’Brien were central to some of the important events in American Labor in the 20th century. Hoffa grew the Teamsters, in numbers and in bargaining strength. Under Hoffa’s leadership, Teamsters’ pension funds were invested in casinos and hotels, and sometimes those construction projects were connected to organized crime figures. Hoffa built a political power base for the Teamsters in Washington, but he also made enemies. Hoffa and O’Brien were targeted in many corruption investigations, and the government used wiretaps to monitor their conversations for years. By itself, this part of Goldsmith’s book is worth the read.

But In Hoffa’s Shadow is also a lawyer’s introspection into his own poor personal choices. In the mid-1980s, when Goldsmith was in his 20s, he was an academic star and on his way to Oxford and then Yale Law School. O’Brien was proud of his stepson, but Goldsmith had decided that O’Brien was an embarrassment. Coldly, Goldsmith determined that his loving stepfather was a career liability. So, Goldsmith cut off all contact with O’Brien. Goldsmith legally changed his last name (dropping O’Brien’s surname); he stopped speaking with O’Brien; and he stopped speaking to his mother whenever O’Brien would be present. O’Brien was deeply hurt, but he honored Goldsmith’s wishes. And Goldsmith enjoyed an unbroken string of professional success, including a Supreme Court clerkship and several prestigious law school teaching assignments.

On several occasions, Goldsmith needed a security clearance to work on a government project, and he used those episodes to rationalize his estrangement from his stepfather.

In Hoffa’s Shadow reads as Goldsmith’s candid admission that he had cut off contact with a loving family member in order to advance his own legal career.

And then the story circles back to Hoffa.

In the early 2000s, Goldsmith had become the head of the Office of Legal Counsel in the U.S. Department of Justice. In that role, Goldsmith was asked to assess some of the Bush administration’s electronic surveillance programs, which were part of the War on Terror. One evening, Goldsmith was in his office at DOJ, researching whether a particular surveillance program could be reconciled with the statutory limits on intelligence-gathering. As he dug through a stack of cases, Goldsmith stumbled upon a Supreme Court opinion relating to Attorney General Robert Kennedy’s surveillance of Jimmy Hoffa in the 1960s. It dawned on Goldsmith: the government’s surveillance of Jimmy Hoffa foreshadowed the 2000s, when the government was expanding its surveillance efforts in response to threats of terrorism. (Readers might not agree with Goldsmith’s views of the Bush administration’s surveillance programs. Goldsmith has written another book—The Terror Presidency—which describes those years in much greater detail.) Eventually, Goldsmith became discouraged, and in 2004, he resigned from DOJ. Around that time, Goldsmith began to regret how much he had sacrificed to his professional goals. He slowly worked on a rapprochement with his stepfather. He asked O’Brien to forgive him for years of bad behavior. Steadily, Goldsmith repaired their relationship. And Goldsmith came to understand, for the first time, some of O’Brien’s distrust of governmental authority.

That reunion leads into the final portion of In Hoffa’s Shadow, which covers Goldsmith’s work on behalf of his stepfather. By the early 2000s, O’Brien had been an FBI target for more than 30 years. He needed help to clear his name. Goldsmith took on his cause. Goldsmith interviewed witnesses, used the Freedom of Information Act, and studied archived documents. Goldsmith lobbied on O’Brien’s behalf, seeking meetings and interviews with investigators. Goldsmith became O’Brien’s tireless champion, in the process gaining a new admiration for his stepfather.

In Hoffa’s Shadow is a unique book. It is part history, part memoir, and part lawyer profile. It is thoroughly researched, entire-

ly accessible, and remarkably candid. But because Jack Goldsmith is willing to reflect on how his life has been shaped by the Jimmy Hoffa mystery, In Hoffa’s Shadow offers far more than just another book about Jimmy Hoffa.  Thomas Doyle has practiced law in Chicago for 30 years. Currently, he is a senior assistant general counsel for the Board of Education of the city of Chicago. He serves as the board’s principal lawyer in appeals. The views in this article are his own, and not necessarily the views of the board.

Ex Parte Milligan Reconsidered: Race and Civil Liberties From the Lincoln Administration to the War on Terror Edited by Stewart L. Winger and Jonathan W. White University Press of Kansas, Lawrence, KS (2020) 371 pages, $45.00.

Reviewed by Henry Cohen

Lambdin P. Milligan (1812–1899) was a Huntington, Ind., lawyer and a Copperhead.

The Copperheads (or Peace Democrats) were Democrats in the Union states who opposed the Civil War, and some of them engaged in insurrectionary activity against the Union. In 1864, a military commission convicted five Copperheads and sentenced four of them, including Milligan, to death for having conspired to liberate Confederate

prisoners and seize a federal arsenal, among other crimes. In 1866, the U.S. Supreme Court, in Ex parte Milligan, found that, under the Constitution, military commission trials could not try civilians “where the courts are open and their process unobstructed” and where there was no war, as was the case in Indiana in 1864. Justice David Davis wrote the majority opinion, and Chief Justice Salmon P. Chase wrote a concurring opinion. Ex Parte Milligan Reconsidered is a collection of 12 essays that explore that case and related issues. The essays focus on the Civil War and Reconstruction; only the final two essays examine 20th- and 21st-century cases.

In the first essay, “Benjamin F. Butler, Ex Parte Milligan, and the Unending Civil War,” Brian Matthew Jordan runs through the Civil War career of General Butler, who argued the government’s case before the Supreme Court in Ex parte Milligan. After the war started, when the South attacked Fort Sumter on April 12, 1861, the men of the Sixth Massachusetts Volunteer Militia stopped in Baltimore on their way to Washington to protect the capital. They were met by a secessionist throng that rioted and killed four soldiers. Butler took his troops by boat from Philadelphia to Annapolis and, a few days later, Jordan writes, “he had parked his troops atop Federal Hill” in Baltimore.

President Lincoln promoted Butler to major general, but General Winfield Scott upbraided him for his “hazardous occupation of Baltimore” and ordered him to take command of the Military Department of Virginia and North Carolina.

In Virginia, Butler took the action for which he is most remembered. Three slaves who “had been pressed into manual labor on a nearby Confederate battery … slipped within the federal lines and sought sanctuary,” Jordan writes. The next day, a Confederate officer sought their return, citing Butler’s “constitutional obligation” to return fugitive slaves. Butler replied that he was “under no constitutional obligations to a foreign country, which Virginia now claims to be,” and that he would hold the fugitives as “contraband of war.” Thereafter, this became Union policy with regard to escaped slaves.

Butler’s next job was to oversee New Orleans, which had fallen into Union hands in April 1862. Then, in November 1863, Butler again took command of the Military Department of Virginia and North Carolina, where he declared martial law, defending his

November/December 2020 • THE FEDERAL LAWYER • 71

action with arguments that anticipated those he made in Milligan. Lincoln wrote to Butler that only military necessity could justify “the suspending of the civil by the military authority.” Then, “[a]fter an embarrassingly unsuccessful attempt on Wilmington’s Fort Fisher [in North Carolina], Benjamin Butler was cashiered, and his growing chorus of detractors exhaled.”

Jordan finally reaches Butler’s argument in Ex parte Milligan. Although Robert E. Lee had surrendered to Ulysses S. Grant on April 9, 1865, Butler believed that, in 1866, the war was not truly over. He anticipated, Jordan writes, “the trials that remained still ahead, together with the forces … that would conspire to overthrow Reconstruction.” Butler argued to the Court that “when on its armed forces the government must rely for all it has of power, authority, and dignity,” then “martial law may prevail, so that the civil law may again live ….”

In “Ex Parte Milligan in Context and History,” Michael Les Benedict elaborates on Butler’s argument to the Court. Butler and his co-counsel, Attorney General James Speed, argued that the provisions of the Bill of Rights, including the right to a jury trial, were “all peace provisions” that “are silent amidst arms.” The president, they added, “is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration.” Benedict writes that “Speed was out of his depth,” and Butler “was the worst possible choice to address the Court on this case. He knew no restraint, delivering a jeremiad in support of untrammeled presidential war power.”

Benedict also explains the difference between Justice Davis’s majority opinion and Chief Justice Chase’s concurrence. All the justices agreed that, under the Constitution, when civilian courts were open, the president could not authorize the trial of a civilian by a military commission. The majority opinion went further, however, saying that Congress could not have authorized such a tribunal either. Chase disagreed, finding that Congress could authorize the use of military commissions against civilians. Chase’s concern was Reconstruction. He noted that, in the South, “courts might be open and undisturbed in the execution of their functions, and yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators.” In other words, state courts in the former Confederacy would not

protect the former slaves from violence. This is the subject of Michael Haggerty’s essay, “To Leave Behind the Law of Force: Salmon Chase and the Civil War Era.” Haggerty puts Chase’s concern for Reconstruction in context. The war was effectively still being fought in the Southern states, where white people, including the police, were massacring black people with impunity, and the U.S. military was trying to stop them. “For Chase,” Haggerty writes, “wartime powers could be utilized in accordance with the Constitution as long as Congress affirmed that public safety remained under threat.” Davis was concerned that military commissions threatened liberties, but he overlooked that, for black people, liberties did not exist in the first place. Military commissions were a prerequisite for their liberties. Though initially a civil liberties decision, Ex parte Milligan became a federalism decision that prevented the federal government from interfering with states’ rights (to allow black people to be murdered).

In his essay discussed below, Stewart L. Winger notes, “Fearing the Davis opinion in Milligan would be used … to inhibit the ability of the army to enforce meaningful black freedom in the South, Radical Republicans responded by stripping the Supreme Court of … appellate jurisdiction over military commissions ….” Yet, in state courts, Ex parte Milligan was followed. John A. Lupton’s essay describes a case in which, in Illinois in 1862, a U.S. marshal arrested a lawyer named Madison Y. Johnson for representing a client who had been charged with discouraging enlistments. After being held in prison for several months, Johnson was released and, in 1864, he sued the marshal and four other men in state court for false imprisonment. In 1866, the Illinois Supreme Court, relying on Ex parte Milligan, held that Johnson’s arrest by the federal government had been extralegal, and the parties settled the case.

Military commissions benefited African American people during the Civil War, as well as during Reconstruction. In “Martial Law and the Expansion of Civil Liberties during the Civil War,” Jonathan W. White shows how “trying civilians in military courts in violation of their Fifth and Sixth Amendment rights … expanded citizens’ rights in several important ways…. [T]he Union’s use of courts-martial and military tribunals to try white civilians … opened up new opportunities for African American

72 • THE FEDERAL LAWYER • November/December 2020

men and women,” allowing them, for example, to testify against white people in military courts. “[A]s anti-war, antiblack Democrats became subject to arrest or other forms of suppression by Union military authorities, black communities in various parts of the nation were able to establish newspapers, form community organizations, expand religious institutions, and increase educational opportunities, ‘with little fear of assault.’” Once the Union army gained control of an area such as Baltimore or New Orleans, arrests of black men for crimes such as vagrancy plummeted. After discussing these matters, White displays his skill as a storyteller by relating the facts of several cases in which, as a result of African American people’s testimony, white people were convicted of the murder or manslaughter of black people.

On May 10, 1862, Union troops seized Norfolk, Va., without a fight. Because Norfolk remained under Union control, the Emancipation Proclamation, issued on Jan. 1, 1863, did not apply to it. In “The Janus-Faced Character of Martial Law in the American Civil War,” Mark S. Schantz notes that the Union military nevertheless “continued to protect the political aspirations of blacks in Norfolk and Portsmouth.” In fact, the Union commander in those cities, General Egbert L. Viele, authorized the Black residents of Norfolk to celebrate the Emancipation Proclamation with a parade for which some 5,000 Black residents turned out. The parade was followed by a sermon

by Reverend Richard Parker, a former slave who, Schantz writes, “walked his listeners through the six decades of oppression and brutality” he had experienced. The slaveholders of Norfolk “could hardly believe their eyes,” and they were not about to take such uppitiness lightly.

On July 11, 1863, Dr. David M. Wright, one of Norfolk’s most respected citizens, killed Lieutenant Alanson Sanborn, a white Union officer who led the 1st U.S. Colored Infantry Regiment. Over the objections of Wright and his lawyers, Wright was tried by a military commission, and this murder and the trial are the focus of Schantz’s essay.

The murder occurred after Wright witnessed Sanborn marching his company along Main Street in Norfolk. This, Schantz writes, was “a clear violation of Southern racial etiquette …. For Southern gentlemen such as Wright, having women and children yielding to, or being ‘jostled’ by, black soldiers was an insult of catastrophic proportion.”

Wright’s attorneys could not contest the fact that he had killed Sanborn, so they first tried to show Wright’s humanity in having offered medical assistance to Sanborn as he lay dying. When that tactic failed, they pleaded that he had been temporarily insane, and they appealed to President Lincoln.

Lincoln agreed to have a preeminent doctor examine Wright. The doctor found him sane, and Lincoln ordered the army to proceed with Wright’s execution. Wright was hanged on Oct. 23, 1863. Schantz concludes that Lincoln’s deft handling of the case showed the power of martial law to protect black soldiers and the men who led them.

In “The State Was Honeycombed with Secret Societies,” A. James Fuller writes about the secret societies of Copperheads that plotted insurrections in Indiana. He also discusses the political impact of Milligan’s trial. “The treason trials,” Fuller writes, “were conducted and concluded at just the right time to help the Republicans win the 1864 elections. To be sure, Union military victories [such as William Tecumseh Sherman’s taking Atlanta] did more to secure the election, but the sensational story of traitors … further aided the party,” prompting voters to rally around the flag. This was true at the state as well as at the federal level. Indiana Governor Oliver P. Morton, Fuller writes, “had urged the military to act in time to benefit him and his party politically, and his plan worked…. But he was not merely an opportunist…. [H]e seized the moment politically while also genuinely believing that the Copperheads were a threat to the Union.”

In “These Scoundrels Stand in No Fear of the Civil Courts; They Do of the Military,” Stephen E. Towne tells of how army intelligence officers, in what were then the northwestern states—Illinois, Indiana, and Ohio— infiltrated secret anti-Union organizations.

They determined that there was a serious danger of insurrections, such as attacks on prisoner of war camps to free rebel soldiers.

The governors of these states appealed to President Lincoln to send troops. But it was the summer of 1864, and Lincoln was focused on the military campaigns of Grant in Virginia and Sherman in Georgia and could not afford to send troops to the Northwest.

He also did not take the threats of insurrections seriously. The governors did not stop their appeals, however, so to appease them, Secretary of War Edwin Stanton sent Judge Advocate General Joseph Holt out West to see if the secret plots were as dire as claimed.

Holt reported that they were. In response, “the War Department sent reinforcements, additional arms, funds, and other assistance to the governors and generals in Ohio, Indiana, and Illinois.”

In “The Least Naive Position: The Lincoln Administration and International Law in American Wars on Terror,” Stewart L. Winger defends Lincoln’s use of military commissions against civilians by placing it in context. Lincoln was not seeking to aggrandize presidential power for its own sake; he did not intend to establish a permanent regime of military commission trials. Today, Winger writes, “it would indeed seem like extravagant executive overreach to erect domestic military commissions to try … offenses” such as “using disloyal language, kidnapping a ‘contraband negro,’ forging false discharge papers, assisting desertion,” and other less-than-treasonous offenses. “But in fairness to Lincoln,” Winger writes, “he did not have an FBI or a bureaucracy of federal prosecutors on hand. He had no Department of Justice, let alone a Civil Rights Division.

Nor did he have sweeping regulatory authority under the commerce clause or the enforcement clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments….

[W]hat he had was the U.S. Army, and beginning in March 1863, the Provost Marshal General’s Bureau.” Lincoln had to choose between white civil liberties and black freedom, and he chose the latter.

Moreover, in the 19th century, writes Winger, the Bill of Rights was not viewed, as it is today, “as intended to protect individual citizens from presumably tyrannical majority government …. [T]he only areas where the federal courts had protected individual rights against majority action prior to Milligan were in cases involving the contracts clause (Article I, Section 10).”

Rather, Winger writes, “‘liberty’ was almost exclusively taken to be a collective attribute of self-governing communities.” He quotes Akhil Amar’s statement that the Bill of Rights, as originally conceived, “protected the ability of local governments to monitor and deter federal abuse ….”

In the final essay in the book, Jonathan Hafetz, who has litigated some of the important post-September 11 cases against the government, concludes that “Justice Davis’s opinion—that military tribunals cannot be used when federal courts are open and functioning—no longer holds sway. Yet Milligan continues to have bite in limiting the sweep

of military commission jurisdiction.”

Ex Parte Milligan Reconsidered is an important contribution to our understanding, not merely of a Supreme Court case and its effects, but of the Civil War and Reconstruction overall. We learn of the actions of the Copperheads, the changing status of African American people as the war progressed and after it ended, the reaction of racist white people to them, and of the conflicts between federal and state authorities over dealing with dissent and insurrection. Perhaps the most valuable aspect of the book is its discussion of how Ex parte Milligan, though a victory for civil liberties, caused harm to black people and contributed to the failure of Reconstruction, which gave rise to the Jim Crow era that followed it. Even many serious students of the Civil War probably did not know of the decision’s downside.  Henry Cohen was a legislative attorney with the Congressional Research Service, Library of Congress, from 1975 to 2010, and was the book review editor of The Federal Lawyer from 1989 to 2017. ©2020 Henry Cohen. All rights reserved.

November/December 2020 • THE FEDERAL LAWYER • 73

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MEET YOUR BOARD W. West Allen • National President

W. West Allen is an intellectual property litigator and counselor in Las Vegas who represents a wide variety of international clients in federal courts. West served as chair of the FBA’s Government Relations Committee for seven years. He has served as a member of the FBA’s Board of Directors for much of the past decade, serving two terms from 2011 to 2015 and from 2015 to 2018. In 2016, West received the FBA’s President’s Award for longstanding service to the FBA and as chair of its Government Relations Committee.

West served as an FBA circuit vice president (CVP) for the Ninth Circuit, where he assisted in the development of 16 FBA chapters from 2007 to 2013. During this time, West was twice elected to serve as the chair of the Circuit Vice Presidents.

In 2013, while serving as Government Relations Committee chair, West testified before the U.S. Senate Judiciary Committee regarding the effect of sequestration on the federal courts. He helped institute the FBA’s annual “Capitol Hill Day” and taught at the FBA’s annual leadership training.

Prior to serving as an FBA national officer, West was the Nevada Chapter president from 2000 to 2001 and co-chair of the 2006 FBA National Convention held in Las Vegas. West has been a Life Fellow with the FBA Foundation since 2009.

Over the years, West has worked with many FBA leaders and committees. He was appointed to serve on the FBA’s National Council from 2001 to 2007. He has served as a member of the Government Relations

Committee; the FBA 100th Anniversary Planning Committee; the Nomination and Elections Committee; the Constitution, Bylaws, Rules & Resolutions Committee (to update the FBA’s governance structure); the Chapter Activity Award and Fund Committees; and various national audit, finance, and special task force groups while serving on the Board of Directors.

West is a partner with the national law firm of Howard & Howard PLLC. Previously, he was a partner for over a decade with Lewis Roca Rothgerber Christie LLP, where he served on the firm’s governing executive committee. In Nevada, West founded the Nevada State Bar’s Intellectual Property Section and served as that section’s first chair in 2004. Beginning in 2005, West was appointed by the chief judge of the U.S. District Court District of Nevada to serve on the Civil Rules Standing Committee on the Local Rules. He was reappointed to this committee by the chief judge in 2009 and in 2011, at which time he drafted the local patent rules for the District of Nevada. Between 2010 and 2019, West was appointed by Nevada’s Federal Court to serve on five Merit Selection, Appointment and Reappointment Panels for U.S. magistrate judges, often serving as the committee chair.

Within the Las Vegas community, West has served since 2008 on the Board of Directors for Opportunity Village, Nevada’s premier charity assisting those with intellectual disabilities. He is a volunteer Child Advocate Program attorney with the Legal Aid Center of Southern Nevada. He has chaired the Clark County Bar Association’s annual Liberty Bell Award Committee and served for many years on the Advisory Board for Humanitarian Experience for Youth, an international youth service project organization.

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Anh Le Kremer • National President-Elect

Anh Le Kremer has been an active member of the FBA since the start of her legal career in 2001.

Anh currently serves as the treasurer for the FBA. Her involvement with the FBA began with the Minnesota Chapter, where she was a member of the executive committee and served in a number of leadership roles before serving as the CVP for the Eighth Circuit.

Anh served as the Eighth Circuit CVP for two terms and received the Outstanding Service Award in 2011 for her work. She served on the FBA Board of Directors from 2013 to 2016 and was appointed by then-President Judge Newman in January 2017 to fill a vacancy on the board from January through September 2017. Anh served on the Sections and Divisions Council. She is also a past chair of the Professional Ethics Committee, where she assisted with the development of a Standards of Professional Ethics and Conduct Policy, which was adopted by the board and sets the standards of conduct expected of our leadership. Anh is a past chair of the Audit Committee (2015), past chair of the Shaw Younger Lawyers Public Service Award and Grant Committee (2017), and past chair of the Constitution, Bylaws, Rules and Resolutions Committee (2018), and she has served on other FBA committees, including the Nominations and Elections Committee, the Sarah T. Hughes Awards Committee, the Women and the Law Conference Planning Committee, and the Rising Professionals Symposium Planning Committee. Anh also served as the general counsel for the FBA for FY 2019.

In addition to her work with the FBA,

Anh is also an active member of the Minnesota Asian Pacific American Bar Association and is a frequent speaker at MNAPABA-sponsored events, including the 3rd Annual Women of Color in the Law Forum (2018) and the Association of Corporate Counsel (ACC) Women In the House: Bringing the Strength & Power of Women to the Workplace.

Matthew C. Moschella • National Treasurer

Matthew C. Moschella is a partner at Sherin and Lodgen LLP in Boston, where he represents clients in all types of civil litigation.

He is also a member of the firm’s Employment Law and Professional Liability Groups. Matt counsels clients in various industries on employment risk management issues, including preventing discrimination claims, hiring and termination issues, employment contracts, employee handbooks, noncompete, nonsolicitation, and nondisclosure agreements.

Matt graduated from Boston College, Boston College Graduate School of Social Work, and Northeastern University School of Law. After law school, he served as a law clerk to Hon. Judith Gail Dein, U.S. magistrate judge, U.S. District Court for the District of Massachusetts. During law school, he interned with a district judge at the U.S. District Court for the District of Massachusetts, the civil division of the U.S. Attorney’s Office for the District of Massachusetts, two Boston civil litigation firms, and the Massachusetts Department of Social Services’ legal department.

Matt has been active in the FBA since 2004. He has been a board member of the Younger Lawyers Division (YTD) for several years and has recently served as chair. He is also the co-chair of the FBA’s Supreme Court Admissions Program, which is coordinated by the YLD. Matt is also active in the Massachusetts Chapter. He has been a member of its Executive Council and an officer for several years.

Ernest T. Bartol

Ernest T. Bartol received a J.D. from Villanova University School of Law in 1970.

Admitted to the New York Bar in 1971, Ernest served the president of the FBA Eastern District of New York Chapter from 2011-2013 and has served as a member of the Nassau County Bar Association, Estates and Trusts Law Committee since 1977, the Professional Ethics Committee since 1979, the Tax Certiorari Committee since 1988, and the New York State Bar Association Estates and Trusts Law Committee since 1973.

Ernest, who has a B.S. in accounting from Fordham University, has concentrated in all phases of Estates, Wills and Trusts and commercial litigation since leaving the employ of a major accounting firm in 1971.

On the estate planning side, he has been engaged in all phases of estate asset protection by drafting, inter alia, (1) Wills with Unified Credit Shelter trusts and provisions, (2) Irrevocable and Revocable Trusts, including Life Insurance Trusts, (3) Qualified Personal Residence Trusts, (4) Family Limited Partnerships and Limited Liability Companies, (5) Private Annuities, (6) GRATS, GRITS, and GRUTS and (7) other planning devices for use by individuals, shareholders of family and closely held businesses and partners of family, and closely held businesses.

On the estate litigation side, he has been engaged in all types of proceedings in the surrogates courts located in New York City, Nassau, Suffolk, and upstate counties, including contested probate proceedings, contested accounting proceedings, and discovery proceedings. His estate work also includes preparing and filing of federal and New York State Estate tax returns.

He also has handled many commercial trials in the New York State Supreme Courts and the U.S. District Courts in the Eastern and Southern Districts of New York.

A member of the New York State Bar Association Trusts and Estates Law Committee, wherein he frequently lectures on estate-related topics, Ernest also has recently been inducted as a member of the Federal Bar Council and has become a member in the Fellows of the American Bar Foundation

and the New York State Bar Association. He is a member of various Who’s Who registers, including Who’s Who in American Law. In 2003 Ernest became a member of the Civil Rules Committee of the U.S. District Court for the Eastern District of New York and in August 2008, he became a member of the Magistrate Selection Committee of the U.S. District Court for the Eastern District of New York. In March 2008, he became a member of the State of New York Committee on Character and Fitness for the Second, Tenth, and Eleventh Judicial Districts. In June 2008, he became a member of the Independent Judicial Election Qualification Commission for the Tenth Judicial District of the New York State Supreme Court. In 2004, he became the presiding trustee of the Board of Directors of United Cerebral Palsy of Nassau County, a charity for whom he has donated substantial time for 30 years.

Ernest is admitted to practice before all the courts of the State of New York, a number of U.S. district courts, the U.S. Court of Appeals for the Second Circuit, the U.S. Supreme Court, and the U.S. Tax Court.

Jeanette M. Bazis

Jeanette M. Bazis is a partner at Greene Espel PLLP in Minneapolis. She is a highly regarded litigator whose practice focuses largely on complex business, intellectual property, and employment litigation.

Jeanette’s litigation matters often arise at the intersection of intellectual property and employment law in trade secret litigation and cases involving the enforcement of noncompete and nonsolicitation agreements.

Jeanette has been consistently recognized by her peers as a Minnesota Super Lawyer since 2008—including as among the Top 50 Women Super Lawyers since 2013 and as a Business Litigation Super Lawyer. She has been named a “Best Lawyer” by U.S. News— Best Law Firms since in 2014 and has also earned repeated national recognition from Chambers USA. Jeanette has been an active and dedicated member of the FBA for nearly two decades. She served on the Foundation of the FBA Board of Directors for 12 years,

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including as president in 2017–2018. Her foray into the National FBA came when she was elected as Eighth Circuit vice president in 2006. She served on the Minnesota Chapter’s Board of Directors and Executive Committee from 2004 to 2016 and chaired a number of the chapter’s committees, including its Diversity Committee.

In addition to FBA leadership, she served on the Federal Practice Committee for the U.S. District Court, District of Minnesota, and was appointed by its chief judge to chair the U.S. Magistrate Selection Committee.

The promotion and mentoring of women in the legal profession also has been a major focus of Jeanette’s career. Jeanette served as president of the Infinity Project, whose mission is to increase the gender diversity of the state and federal bench in the Eighth Circuit, and has been on its board since its 2009 inception. Her work with the Infinity Project earned her Attorney of the Year recognition in 2013.

Jeanette received her law degree, magna cum laude, from the University of Minnesota Law School and her B.B.A. in economics, summa cum laude, from Temple University.

Jeanette serves on the University of Minnesota Law School Board of Advisors and currently chairs its Development Committee.

Joey Bowers

John (“Joey”) Bowers, who serves the FBA in his personal capacity, is counsel for the Civil Division of the U.S. Department of Justice (DOJ) in Washington, D.C. He joined the DOJ through the Attorney General’s Honors Program, and prior to serving in his current position, he was a trial attorney for the Civil Division of the DOJ. Before joining the DOJ, Joey had the honor to serve as a law clerk for U.S. District Court Judge Patrick Michael Duffy and U.S. District Court Judge Joseph F. Anderson Jr., both in the U.S. District Court for the District of South Carolina. He is the recipient of the DOJ Civil Division’s John W. Douglas Award for Pro Bono Service and the Washington Council of Lawyers Government Pro Bono Award. He is a member of the Capitol Hill Chapter and is a former chair of the FBA’s Younger Lawyers Division Board of Directors.

Kevin A. Maxim

Kevin A. Maxim is the principal of The Maxim Law Firm P.C. in Atlanta. He litigated in national law firms for 14 years before forming The Maxim Law Firm more than 11 years ago. The firm’s litigation practice focuses on issues arising from contracts, real estate, the internet, fraud, insurance, and a gamut of business disputes, including those arising from restrictive covenants and trade secrets.

Kevin has been a member of the FBA since June 2005. He served on the FBA’s Board of Directors from 2013-2016 and as general counsel during 2017-2018. He has chaired the Constitution, Bylaws, Rules, and Resolutions and the Hon. Sarah T. Hughes Award Committees, and he has served on the FBA’s Governance Task Force, the Task Force on Nominations and Elections, the National Convention Committee, and the Budget & Finance Committee, and as an Audit Committee member. He assisted in forming the FBA’s Southern District of Georgia Chapter and is a Life Fellow of the FBA Foundation.

Kevin is proud of his Atlanta Chapter roots. The chapter hosted the FBA’s Annual Meeting & Convention in 2007 and 2017, and he was honored to chair the 2017 Atlanta Convention Planning Committee and to serve alongside so many dedicated and resourceful Atlanta FBA leaders. Kevin served as the Atlanta Chapter president in 2009–2010 and has continued to participate as a member of the chapter’s Advisory Committee since.

Kevin served on the Board of Trustees of Atlanta’s Fernbank Museum of Natural History from 2008-2016 and continues as an honorary trustee there. He served on the Atlanta Bar Association’s Judicial Selection & Tenure Committee from 2016-2018, and since 2012, as a volunteer practitioner participant in the semiannual Orientation to Professionalism Programs at the Emory University School of Law. Since 2009, he has also served on the University of Cincinnati College of Engineering Dean’s Advisory Council. In 2017, he began representing military veterans through the Georgia State Bar’s Military and Veterans Legal Assistance Program.

Kevin graduated with a degree in chemical engineering, summa cum laude, from the

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University of Cincinnati in 1991 and from the University of Virginia School of Law in 1994. He has been honored to be designated a Georgia Super Lawyer since 2010 and as one of the Top 100 Georgia Super Lawyers since 2012.

Glen R. McMurry

Glen R. McMurry was appointed by FBA National President Kip Bollin to serve as a Sixth Circuit vice president in 2018.

Glen has been an active participant in the FBA for nearly a decade, joining the FBA in 2010 when he worked to restart the Dayton, Ohio, Chapter. Glen served as that chapter's president for three years (2010-2012).

Glen became one of the FBA’s 12 national directors in 2015 and was most recently appointed to steer a national taskforce aimed at increasing courtroom advocacy opportunities for younger lawyers across the country.

Glen also recently completed his service in the leadership ladder of the Younger Lawyers Division (YLD), serving as chair of the division during the 2016-2017 term. During his service, Glen facilitated the growth of the YLD by over 1,000 members.

Glen has also served on The Federal Lawyer editorial board and the Government Relations Committee.

Glen resides in Troy, Ohio, with his wife, Angela, and their three children.

Hon. Karoline Mehalchick

Hon. Karoline Mehalchick is a U.S. magistrate judge in Scranton, Pa., where she was appointed to the bench of the U.S. District Court for the Middle District of Pennsylvania on July 15, 2013. Prior to joining the court, she was a partner with a small law firm in Clarks Summit, Pa., where she represented a broad range of clients in both state and federal trial and appellate courts, including the U.S. Supreme Court. She is a graduate of Schreyer Honors College of Pennsylvania

State University (1998, B.S., geosciences) and Tulane University School of Law (2001, J.D.). After graduating from law school, she served as a law clerk to Hon. Trish Corbett, Court of Common Pleas of Lackawanna County. Judge Mehalchick was an adjunct professor at Marywood University from 2003-2012, where she taught Legal and Clinical Aspects of Health Care to graduate students studying nursing and health administration.

Judge Mehalchick has been active in the FBA for over 10 years. She is a past president of the Middle District of Pennsylvania Chapter, previously serving as its secretary, vice president, and president-elect. She currently serves as the chapter’s ECF coordinator and civics liaison and works closely with the chapter’s community outreach chair to implement programs with local schools and the court. Judge Mehalchick served as an FBA Third Circuit vice president for five years.

She is a judicial profiles editor on the editorial board of The Federal Lawyer, chairs the Bench Bar Committee, is a member of the Judiciary Division and the Community Outreach Committee, and has previously served on the Professional Ethics Committee.

Within her court, Judge Mehalchick serves as a co-chair of the Middle District of Pennsylvania’s Prisoner Litigation Settlement Program, sits on the Criminal Law Committee, and recently served as a co-chair of the court’s employee conference. She also serves in the Administrative Office of the U.S. Court’s Magistrate Judges Advisory Group. Judge Mehalchick actively participates in the Pennsylvania Bar Association’s Commission on Women in the Profession and is a member of the Executive Council of the commission. She is also a past president of the TLD of the Lackawanna Bar Association.

Beyond her work in the legal community, Judge Mehalchick sits on the comprehensive planning committee of the Howard Gardner Multiple Intelligence Charter School in Scranton, is vice president of production for the Ballet Theatre of Scranton, and is president of the Board of Directors for the Abington Gators Swim Team.

Adine S. Momoh

Adine S. Momoh is an equity partner and trial attorney specializing in complex business and commercial litigation, securities litigation, estates and trusts litigation, and creditors’ rights and bankruptcy at the Minneapolis office of the law firm of Stinson LLP. Before joining Stinson, Adine attended the University of St. Thomas Opus College of Business, obtaining a B.A., summa cum laude, in business administration-legal studies in business, psychology, and pre-law.

Adine then received her law degree, magna cum laude, from William Mitchell College of Law. After law school, Adine clerked for Hon. Jeanne J. Graham of the U.S. District Court for the District of Minnesota.

Adine has been an active member of the FBA since 2011, after having joined the FBA as a law student member in 2007. Adine currently serves as an at-large director on the National FBA’s Board of Directors. She is a former Eighth Circuit vice president and is the immediate-past chair of the FBA’s YLD. Having been elected to the YLD Board of Directors in 2011, Adine has served on practically all of the YLD’s committees. For five years, Adine served as a director of the YLD’s Thurgood Marshall Memorial Moot Court Competition in Washington, D.C., one of the most prestigious moot court competitions in the country. She served as the chair of the Robyn J. Spalter Outstanding Achievement Award Committee and was one of the award’s founders. She also assisted the YLD with its Summer Law Clerk Program and U.S. Supreme Court Admissions Ceremony, among many other committees and FBA initiatives.

With respect to other involvement with the FBA on the national level, Adine previously served as chair of the FBA’s Chapter Activity Fund Committee and has served as a member on various FBA committees and task forces, including the FBA’s 100th Anniversary Planning Committee, the Rising Professionals Symposium Planning Committee, Audit Committee, Membership Committee, the Nominations and Elections Committee, the Shaw Younger Lawyers Public Service Award and Grant Committee, and the Diversity and Inclusion Committee. With

respect to her involvement with the FBA on the local level, Adine is a board member of the FBA Minnesota Chapter’s Board of Directors and was previously vice president of membership, co-chair of the chapter’s Law School Outreach Committee, and a member of the chapter’s Communications Committee, for which she has written several articles for the chapter’s nationally recognized and award-winning Bar Talk publication.

Aside from her work with the FBA, Adine has been active with other bar associations and nonprofits, including serving on the boards of the Minnesota Association of Black Lawyers and the Saint Paul and Minnesota Foundation, and as vice chair of the American Bar Association’s Bankruptcy Appeals Subcommittee of the Bankruptcy Committee.

John R. Thomas

John R. Thomas has significant experience representing individuals and businesses in a variety of civil and criminal litigation as well as providing strategic advice in science policy and research administration matters. John is a partner with Healy Hafemann Magee in Roanoke, Va. John is a national leader in False Claims Act litigation, where whistleblowers uncover and report fraud against the government.

He litigates cases throughout the country involving procurement fraud, health care fraud, medical device fraud, and grant fraud.

John is the founder and past chair of the FBA Qui Tam Section and a frequent writer and speaker on the False Claims Act. John is also an experienced litigator in the criminal arena. He has served as both a prosecutor and defense counsel in a variety of federal and state actions, including contested trials involving financial crimes, government fraud, attempted murder, war crimes, complex classified litigation matters, crimes against children, drug offenses, firearms offenses, and theft of government property.

John also has a special interest in science policy and research administration issues and represents clients in a variety of research and science policy matters and other issues

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involving academic institutions. He is a contributor to the "Retraction Watch" blog and has published in The Scientist and other science media.

In addition to serving on the FBA Board of Directors, John remains involved in the FBA Qui Tam Section and the Roanoke Chapter. He is also the chair of the Public Service Task Force from 2018-2020.

John is a major in the U.S. Marine Corps Reserve and serves as a law of war instructor/adviser. In his previous billets, John prosecuted and defended Marines in courts-martial, served as a deputy staff judge advocate, and deployed to Afghanistan as a battalion judge advocate, where he advised the battalion commander on the law of war and other operational law matters.

Jessica R. Toplin

Jessica R. Toplin is a trial attorney in the Commercial Litigation Branch of the Civil Division of the U.S. Department of Justice (DOJ). Jessica joined the DOJ in 2008 through the attorney general’s honors program. She currently works in the Civil Frauds Section, where she investigates allegations of civil fraud and litigates claims to recover money under the False Claims Act. Jessica has extensive experience representing the government in government contracts and federal employment claims before the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Federal Claims. Prior to joining the DOJ, Jessica served as a judicial law clerk in the U.S. District Court for the Middle District of Florida. She received a B.B.A. from George Washington University and J.D. from George Washington University Law School.

Jessica has been active in the Younger Lawyers Division (YLD) and D.C. Chapter of the FBA since 2011. She served on the national YLD board from 2011-2020 and served as chair of the YLD from 2017-2018.

She served on the D.C. Chapter board from 2011-2015 and founded its Younger Lawyers Section. Jessica planned and attended several national and local FBA events. She also spoke on panels at the national FBA conventions in San Diego and Atlanta.

Jessica serves in FBA leadership in her personal capacity. Any views she expresses are her own and not those of the DOJ.

Hon. Mimi E. Tsankov

Honorable Mimi E. Tsankov (personal capacity) has served as an immigration judge with the U.S. Department of Justice (DOJ), Executive Office for Immigration Review, since 2006, where she has presided over detained and nondetained dockets at the Los Angeles Immigration Court, the Denver Immigration Court, and the New York Immigration Court. She has served as pro bono liaison judge at the Denver and Los Angeles Immigration Courts and has been a contributing editor of the DOJ Immigration Judge Bench Book. A frequent panelist at regional, national, and international law conferences, Judge Tsankov has presented on a wide variety of immigration law topics, ranging from mental competency and juvenile docket hearings to ethics, professional responsibility, and “crimmigration” matters. She has published articles in the DOJ Immigration Law Advisor, The Federal Lawyer, and various academic law journals on topics ranging from 287(g) law enforcement to immigration benefits for victims of domestic violence in the United States and the European Union. Judge Tsankov established and chaired the Colorado Federal Attorney Pro Bono Program and served on the Colorado Chief Justice’s Commission on the Legal Profession.

In her personal capacity, she has served as an officer with the FBA Colorado Chapter, the FBA Immigration Law Section, and the FBA International Law Section, having been recognized nationally in this regard. She is a member of the National Association of Women Judges, the Human Rights Subcommittee, and the American Bar Association, National Conference of the Administrative Law Judiciary. She has taught immigration law as an adjunct professor at the University of Denver Sturm College of Law and the University of Colorado School of Law. She holds a J.D.-M.A. in foreign affairs from the University of Virginia.

82 • THE FEDERAL LAWYER • November/December 2020

Christie Companion Varnado

Christie Companion Varnado is a partner at The Seibels Law Firm, P.A., a boutique litigation and captive insurance firm in Charleston, S.C. Over the past 25 years, her civil litigation practice in federal and state courts has involved a wide variety of matters and is currently focused on construction defect claims, product liability, personal injury, employment discrimination and compensation, and election challenges. She also provides counsel to private employers, local governmental entities, and individuals with employment or contractual concerns. She is admitted to practice as a member of the South Carolina bar as well as in the District Court of South Carolina, the Fourth Circuit U.S. Court of Appeals, and the U.S. Supreme Court.

Christie served as law clerk to Hon. Wallace W. Dixon, U.S. magistrate judge, and as deputy county attorney for the County of Charleston. She has been awarded an AV Preeminent rating by Martin-Hubbell, is a lead counsel rated attorney in civil litigation and consumer protection, and has been listed in South Carolina Super Lawyers in the field of construction litigation. Christie received a B.A. in English from the South Carolina Honors College at the University of South Carolina, where she was a member of Phi Beta Kappa. She received a J.D. from the University of South Carolina School of Law, where she was a member of the Order of the Wig & Robe and the editorial staff of the South Carolina Law Review.

Christie’s active involvement with the FBA, on both the national and chapter level, has spanned the two decades since the South Carolina Chapter was reinstated in 2001. This is her second term on the national Board of Directors. Prior to that, she served several terms as a Fourth Circuit vice president, culminating as chair of the Circuit Vice Presidents in 2014-2015. She has been inducted as a Life Fellow of the Foundation of the FBA. Christie was president of the South Carolina Chapter and a member of its Board of Directors from 2003-2010. She is currently chairing the South Carolina Chapter’s planning committee preparing for

the FBA’s national annual meeting to be held in Charleston in September 2022.

Christie has also served on several committees for the South Carolina Bar and as a Younger Lawyers Division delegate to the annual meeting of the American Bar Association. She has been appointed by South Carolina’s governor to serve on the Charleston County Board of Elections and Voter Registration since 2003 and is currently serving in her second term as chair. Christie has presented several lectures on various topics, including legal ethics, elections, local government, federal civil procedure, employment law, and the Freedom of Information Act, and her writing has been featured in the South Carolina Lawyer magazine.

Mike S. Vitale

Mike S. Vitale is a partner at the law firm of Baker & Hostetler LLP, where he has practiced law since 2007. His practice includes civil, construction, and complex business litigation across the state of Florida, where

he has trial experience at both the federal and state level. Mike has been recognized for his accomplishments as an attorney by Martindale-Hubbell, The Legal 500 (U.S.), Florida Super Lawyers, and Florida Trend.

A dedicated servant to the FBA, Mike has been an FBA member for over a decade and has held leadership roles at both the national and local levels. This year, in addition to serving as a director, Mike is a member of the FBA’s Governance Task Force and the Audit Committee.

Mike served as a vice president for the Eleventh Circuit for the past six years, chairing the group during the 2019-2020 year and receiving the award for Outstanding Leader in 2016-2017. During this time, he assisted the 15 local chapters in the Eleventh Circuit with their professional development and helped to form the FBA’s Southern District of Georgia Chapter.

Mike has also served on the Membership Committee; the Chapter Activity Fund Committee; the Nominations and Elections Committee; the Constitution, Bylaws, Rules, & Resolutions Committee; and the FBA Mentorship Committee, among others. Locally, Mike previously served as the president of the Orlando Chapter during the 2012-2013

term and as the national delegate for Orlando for the 2013-2014 term. He is also a proud Lifetime Fellow of the Foundation of the FBA. Mike has a B.A. from Florida State University and earned his law degree from the Vanderbilt University School of Law in 2005.

Prior to entering private practice, Mike was a judicial law clerk for then-Chief Judge Patricia C. Fawsett of the Middle District of Florida.

His complete biography can be viewed at: https://www.bakerlaw.com/MichaelSVitale.

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November/December 2020 • THE FEDERAL LAWYER • 83

Chapter Exchange

Then incoming D.C. Chapter president Brian C. Murphy (center) looks on as Hon. Royce C. Lamberth (seated left), former chief judge and now senior judge, U.S. District Judge for the District of Columbia, accepts honorary FBA membership and honorary membership on the Board of Directors of the FBA D.C. Chapter. Also pictured (left to right) are D.C. Chapter board member Prakash Khatri, co-vice president for the D.C. Circuit Steven R. Miller, immediate past chapter president Frances Sclafani, past chapter president and host Cary Devorsetz, and Adam Pearlman, law clerk to Judge Lamberth.

D.C. CIRCUIT Longtime Member and Former Chapter Leader Passes Brian C. Murphy, a 40-plus-year FBA member and past president of the D.C. Chapter, passed away Oct. 24, 2020, in a Chevy Chase, Md., nursing home. Murphy also served as chair of the International Law Section and as a vice president for the D.C. Circuit. He enjoyed a distinguished career in the field of international law and justice and served in multiple senior roles over the course of more than 35 years, both in the United States and abroad.

He is survived by his wife, Pendo, and her son, Jarden. He was the brother of Nan Murphy, who passed away in 2009, and of Jerry Murphy. He was the father of his beloved son, David Murphy. He is survived also by Nan's husband Jack Harllee and their son John Harllee and daughter Kathy Harllee

Doane, as well as by Jerry's two sons, James and Keith Murphy.

From Ron Crump, D.C. Chapter Board Member: "When anyone comes into this world and grows in the Grace of God he or she can only hope and pray that when the time comes for them to return home that those who survive them can honestly say that the world is better off for them having come by. Brian left a enviable professional legacy of positive contributions in the law and in the service of mankind.

These contributions are a testimony to the value he added to humanity in this world.

Through the FBA and his work in establishing Solace he consistently and articulately voiced a good conscience of concern and help for all those of us fortunate enough to call him colleague. He helped to further our enjoyment and respect for the governance of the rule of law. He was most magnanimous in recogniz-

84 • THE FEDERAL LAWYER • November/December 2020

ing the social and legal contributions made by others no matter their background or country of origin as he publicly valued and respected the contributions they made to both law and men. He has left us with a most enviable legacy of good works to all mankind. He will be sorely missed but always well remembered."

From the International Law Section: When the Berlin Wall crumbled in 1989, Brian was this section’s chair. As the Republic of Bulgaria embarked on post-socialist reforms toward democratization and rule of law, he volunteered as a Fulbright Scholar at the Faculty of Law, as well as the Faculty of Economics and Business Administration, at Sofia University for a three-semester period from 1992 to 1994. During this period, he revived Bulgaria’s participation in the Philip C. Jessup International Law Moot Court Competition, working tirelessly to train a team of law stucontinued on page 86

Member Spotlight † Denotes New Member * Denotes Sustaining Member Joseline Hardrick

FIFTH CIRCUIT Baton Rouge Stuart Duncan Scott Johnson

New Orleans Rosario Piazza

SEVENTH CIRCUIT Chicago

Josie Gough Mike Rigoli

EIGHTH CIRCUIT

ELEVENTH CIRCUIT

Scott Moriarity

Sarah Gottlieb Marisol Ruiz

Minnesota

NINTH CIRCUIT

Tampa Bay

Hawaii

Darene Matsuoka

Chapter Exchange continued from page 84

dents to compete in Washington, D.C., where they advanced to the semi-final rounds. While in Bulgaria, Brian also escorted the late U.S. Chief Justice William Rehnquist on his first-ever visit to the newly democratic nation.

His service as a Fulbright Scholar was emblematic of how he contributed to the legal community over his distinguished career. Over 35 years, he advocated for international law and justice. He served in some 15 countries supporting the rule of law, democracy and market reforms, including in Armenia, Afghanistan, Bulgaria, Eritrea, Haiti, Iraq, Kenya, Kyrgyzstan, Liberia, Rwanda, and Ukraine. Prior to his work abroad, he worked in public service with the U.S. Departments of State, Defense, and Commerce, and with other institutions of the U.S. government, including the U.S. Senate. In the twilight of his career, he returned to Bulgaria for a second Fulbright lectureship. The FBA always held a special place in his heart. In addition to his long service on behalf of the International Law Section, he served as the D.C. Chapter president, was among the founding organizers of the International Conference on Legislation and Law Reform, and served on the National Council for many years.

Brian will be dearly missed. His contribution to the profession of law, democracy, and the rule of law will not be forgotten. He leaves behind a valuable contribution to humanity and many friends across the globe. 

a case for which he had recently issued a ruling that had been in the local news. His points on civil procedure were very helpful for the law students.  The Mississippi Chapter of the FBA held its August meeting via Zoom with a record

audience viewing the meeting. Chief Judge Sharion Aycock of the Northern District and Chief Judge Dan Jordan of the Southern District were joined by Senior U.S. District Court Judge Keith Starrett to discuss how their courts were operating during the pandemic. 

FIFTH CIRCUIT Mississippi Chapter The Student Division at Mississippi College School of Law (MC Law) and the MC Law Black Law Student Association (BLSA) invited U.S. District Court Judge Carlton Reeves to speak to the two student groups.

Judge Reeves provided the background on

Top: (Left to Right) Dean Emeritus Jim Rosenblatt, FBA Faculty Advisor; Matt Sherman, President, MC Law FBA Student Division; Judge Reeves; Valerie Mims, President, MC Law BLSA. Bottom: Screen shot of the Zoom meeting hosted by the Mississippi Chapter and its officers, Mary Helen Wall, President (Office of the Attorney General); Kristi Johnson, VicePresident (Solicitor General); Nick Morisani, Treasurer (Phelps Dunbar); Blythe Lollar, Secretary (Baker Donelson); and Dean Emeritus Jim Rosenblatt, Executive Director (Mississippi College School of Law).

86 • THE FEDERAL LAWYER • November/December 2020

Federal Bar Association Calendar of Events 

Visit Fedbar.org for more information.

N OV E M B E R

DECEMBER

Virtual // 2020 DC Indian Law Conference

Webinar: ADR in the Covid Era – Neutral, In-House, and Outside Counsel Perspectives

N OV E M B E R 5 – N OV E M B E R 6 N OV E M B E R 5

Memphis/Mid-South Chapter: Misadventures in Lawyering (and Judging) – Ethical Lessons Ripped From the Headlines N OV E M B E R 1 0

Qui Tam Section: [VIRTUAL] False Claims Act Today – District of Arizona N OV E M B E R 1 3

Immigration Law Section Webinar: Nasrallah v. Barr and the Scope of Judicial Review N OV E M B E R 1 3

Law Student Series: Racial Equity and the SDGs: A Certification Training Program for Law Students (3-Part Program) N OV E M B E R 1 8

Webinar: The Capitol Hill Chapter’s Quarterly Supreme Court Update with Charlie, Caroline, and Blake N OV E M B E R 1 9

Memphis/Mid-South Chapter: Virtual Annual Seminar N OV E M B E R 1 9

South Florida Chapter: Zoom Webinar at Lunchtime

DECEMBER 9

DECEMBER 16

Webinar: Pursuing Veteran Herbicide Exposure Cases

F E B R UA RY F E B R UA RY 2 6

Virtual // Labor and Employment Law Conference

SEPTEMBER

SEPTEMBER 23–25

2021 FBA Annual Meeting & Convention Miami

VIRTUAL

LABOR & EMPLOYMENT LAW CONFERENCE FEBRUARY 26, 2021 For more information visit:

www.fedbar.org/event/labor21