Patricia Millett and David Fredricks Mentioned as Possible Nominees to DC Circuit

From the NY Times.

White House officials declined to say who Mr. Obama’s choices will be ahead of an announcement that could come this week, but leading contenders for the spots appear to include Cornelia T. L. Pillard, a law professor at the Georgetown University Law Center; David C. Frederick, who often represents consumers and investors at the Supreme Court; and Patricia Ann Millett, a veteran appeals lawyer in Washington. All three are experienced lawyers who would be unlikely to generate controversy individually.

Several legal advocates who have been in communication with the West Wing said officials had repeatedly discussed those names in recent months.

SCOTUSBlog Preview of Salazar/Gun Lake Band v. Patchak Argument


An excerpt:

One might think that this is not the stuff of an historic oral argument.  But this will be the thirty-first oral argument before the Court for Patricia Millett, who represents the Tribe, which will make her the woman with the most Supreme Court oral arguments in history.

Congrats to Pattie!!!!

News Coverage of Gun Lake Band/USA Intent to File Cert Petition in Patchak

From Indianz.

Here is the link to our post on the D.C. panel opinion.

And to Patricia Millett’s commentary on the decision.


Patricia Millett and James Meggesto Commentary on the Tohono O’odham Decision

Download a pdf here (Tohono Oodham Nation decision analysis).

Here is the text:

Yesterday, the Supreme Court issued its decision in United States v. Tohono O’odham Nation, No. 09-846. The Court, by a vote of 5-2-1 (Justice Kagan recused) reversed the decision of the Court of Appeals for the Federal Circuit, and held that the Court of Federal Claims lacked jurisdiction over the Tohono O’odham Nation’s claims for monetary relief on its trust mismanagement claims. Justice Kennedy delivered the opinion of the Court, which was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Sotomayor issued an opinion concurring in the judgment that was joined by Justice Breyer. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the decision as she was the Solicitor General during earlier proceedings in the case.

The case arose when the Tohono O’odham Nation filed back-to-back lawsuits seeking relief for numerous violations of trust and fiduciary obligations with respect to assets held in trust by the federal government. The Nation first filed suit in the United States District Court for the District of Columbia against the United States, seeking primarily equitable relief, including an accounting. That complaint also sought equitable monetary relief in the form of disgorgement and restitution. The next day, the Nation filed a second lawsuit in the Court of Federal Claims (CFC) seeking monetary damages for mismanagement of the same trust assets.

The Court of Federal Claims dismissed the action under 28 U. S. C. §1500 for want of jurisdiction. Section 1500 provides that:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.

The Court of Federal Claims held that the factual underpinnings for the Nation’s suit before it and the separate suit pending in federal district court were “for all practical purposes identical.” 79 Fed. Cl. 645, 656 (2007).

The Court of Appeals for the Federal Circuit reversed and held that the CFC retained jurisdiction because the two lawsuits sought distinct forms of relief. 559 F. 3d 1284 (2009). The Federal Circuit held that Section 1500 bars relief only if the claims in the two lawsuits both share operative facts and also seek overlapping relief. Because the court found no overlap in the relief the Nation requested from the two courts, the court of appeals held that the action was not barred by Section 1500.

The Supreme Court has now reversed, significantly limiting the ability of claimants—whether Tribes, government contractors, or property owners challenging unconstitutional takings—to obtain full relief against the United States government for the government’s violations of the law. The Supreme Court held that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Slip Op. at 9 (emphasis added). In so holding, the Court acknowledged that “in respect to a claim” could mean facts alone or facts coupled with some overlapping relief. The Court held, however, that the former interpretation was “more reasonable,” pointing to Congress’s provision in the next clause that the CFC would also lack jurisdiction over claims against “any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” 28 U. S. C. §1500. “Acting” “in respect to a cause of action,” the Court concluded, only made sense with respect to factual overlap because it referred to the timeframe before suit was even filed. Individuals cannot “act[]” in respect to particular forms of relief before litigation commences, the Court explained. Thus, the Court concluded, if the phrase “in respect to a cause of action” does not “embrace the concept of remedy, it is reasonable to conclude that” the similarly worded phrase “for or in respect to” a claim does not “embrace the concept of remedy” either. Slip Op. at 5.

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Patricia Millett Recommended for CA4

Patricia Millett is a speaker at this year’s FBA Indian Law Conference (agenda).

From BLT, via How Appealing:

Akin Gump Strauss Hauer & Feld partner Patricia Millett, who co-chairs the firm’s Supreme Court practice, is among the group of five Virginia residents recommended by the Virginia Bar Association to serve on the U.S. Court of Appeals for the 4th Circuit.

The voluntary bar association recommended Millett along with state Sen. John Edwards (D-Roanoke), Virginia Supreme Court Justice Barbara Keenan, University of Virginia Law School professor James Ryan, and Hunton & Williams partner John Thomas, a former Virginia Supreme Court justice. The names were submitted this week to Virginia Senators Mark Warner and Jim Webb. Other bar associations in Virginia are also assessing candidates.

Millett, who lives in Alexandria, has argued extensively in the Supreme Court as a partner with Akin Gump and while serving as an assistant to the Solicitor General from 1996 to 2007, when she went into private practice. At Akin Gump, Millett’s practice has an emphasis in administrative law, civil rights, and national security, among other areas.

The Virginia State Bar’s executive committee is scheduled to meet Friday to review applicants who want to serve on the 4th Circuit in Richmond. The four vacancies on the court—which takes appeals from the Carolinas, Virginia and West Virginia, and Maryland—have generated considerable attention in recent months as lawyers speculate about the court shifting to the left under the Obama administration.

Millett is among several D.C.-based lawyers who applied for consideration by the Virginia State Bar. Covington & Burling partner Michael Baxter; Holland & Knight senior counsel Sharon Eubanks; and Wiley Rein partner Richard Simpson also applied. All four live in Virginia, but only Simpson is a member of the Virginia Bar.

The VSB, the only mandatory bar association, does not make recommendations but instead determines whether a candidate is highly qualified, qualified, or not qualified. Edwards, Keenan, Ryan, and Thomas also submitted their names to the VSB for consideration.