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The Federal Circuit Bar Association’s campaign to get an experienced judge named to the U.S. Court of Appeals for the Federal Circuit appears to have failed. Representatives of the bar group met April 6 with two White House officials and delivered a list of four federal trial judges they hoped would be considered for the Federal Circuit. But by the end of the month, the name of Sharon Prost, a longtime counsel to Senate Judiciary Chairman Orrin Hatch, had surfaced as the leading candidate. The nomination of Prost “sounds like a done deal,” says Nancie Marzulla of the Defenders of Property Rights, a group that pushed for former Hatch staffer and U.S. Court of Federal Claims Judge Edward Damich. According to Jerald Howe, chairman of the Federal Circuit bar’s judicial selection committee, Damich was one of the four names suggested to fill the seat vacated last year when Judge S. Jay Plager took senior status. The other three were claims court Judge Eric Bruggink and U.S. District Judges T.S. Ellis III of the Eastern District of Virginia and Ronald Whyte of the Northern District of California. All have extensive experience with cases under the Federal Circuit’s jurisdiction. The Federal Circuit hears all appeals from Damich and Bruggink’s claims court, which handles suits against the federal government. Both Ellis and Whyte sit in high-tech corridors that spawn patent and trademark suits, which make up about a quarter of the Federal Circuit caseload. But it appears the White House has found its candidate not in a courthouse but on Capitol Hill. That’s where Hatch is the gatekeeper for judicial nominees and where Prost, 49, has spent a majority of her career. Since 1989, Prost has worked for Hatch, first at the Labor and Human Resources Committee and then on the Judiciary, where she recently became chief counsel. Before that, she had worked primarily at the National Labor Relations Board, first as a trial attorney and later as associate solicitor. In 1994, Prost drew national attention when a D.C. Superior Court judge concluded that she had put her job ahead of her responsibilities at home and granted custody of her two sons to her ex-husband. The custody dispute has nothing to do with Prost’s qualifications as a judge. But her case became a cause c�l�bre among some women’s groups and lawmakers. A legal expense fund established to aid her appeal illustrates the likelihood that her nomination would have bipartisan support in the Senate. Along with dozens of lobbyists and Hill staffers, Sens. Hatch and Edward Kennedy (D-Mass.) contributed to the fund, which totaled around $20,000. Asked about the possibility of losing his chief counsel to the federal bench, Hatch says, “You couldn’t get a better person than Sharon. Everybody knows she’s smart.” Prost declined to comment. The White House does not discuss possible nominations. Howe says the Federal Circuit Bar group has no position on Prost. On April 6, bar President Philip Swain and judicial selection panel member Clarence Kipps met with Associate White House Counsel Brett Kavanaugh and Assistant White House Counsel Rachel Brand to say the group thought a nominee with trial experience would offer “the greatest value” to the Federal Circuit. Kipps, a partner in D.C.’s Miller & Chevalier, says, “We accomplished what we wanted to do. We established a working relationship.” Just two of the circuit’s 11 active members — Chief Judge Robert Mayer and Judge Randall Rader — have experience as trial judges, both on the claims court. Rader and Judge Paul Michel have extensive backgrounds on Capitol Hill — Rader yet another staffer of Hatch and Michel a former aide to Judiciary member Sen. Arlen Specter, R-Pa. Other circuits vary in the number of judges with trial court experience. Two of nine members of the D.C. Circuit were trial judges, compared to seven of 12 members on the 11th Circuit in Atlanta. Kipps, who currently chairs an advisory council for Federal Circuit judges, says he does not know Prost. Noting the other judges who have come from Hatch’s staff, however, he adds: “I’m very much impressed with Hatch and the quality of people he recommends.” WINSTAR WINNER When a Federal Circuit panel hears the next set of oral arguments in the Winstar litigation on May 8, the judges will see a rare breed of lawyer. Paul Fish of Albuquerque, N.M., is one of the only lawyers whose client has cashed a check from the federal government as a result of the wave of litigation stemming from the savings and loan bailout of the late 1980s. More than 100 banks have sued the government over its withdrawal of an offer of financial incentives for healthy banks to buy struggling banks. The cases are named after the 1996 Supreme Court decision in United States v. Winstar that established the government’s liability for the claims. In 1991, Fish’s clients — Security Federal Savings and Loan Association investors — won one such suit in New Mexico. In 1994, a 10th Circuit panel affirmed, leading to one of Fish’s clients receiving $6 million plus interest in 1995. Nearly all other Winstar cases have languished in the Federal Claims court in disputes over potential damages. Earlier this year, a Federal Circuit panel ruled in Glendale Federal Bank v. United States that banks may collect damages based on their actions relying on the contracts, but that the award cannot be based on “speculative” estimates on what the government may have reaped from the investors’ purchase of the struggling banks. On May 8, Fish will represent Landmark Land Co., which is suing over golf courses and other developments lost when the government bailout forced Landmark’s banks to go under, leading to sale and seizure of the property. “That’s not speculative,” says Fish. “That’s real dirt.” Lawyers at the Justice Department could not be reached to discuss the case. JUDGE TALK On May 17-18, the judges of the Federal Circuit will gather at the Greenbrier, a luxury resort in White Sulphur Springs, W.Va., for a retreat preceding the Federal Circuit Bar Association’s Bench and Bar Conference. The judges’ agenda, according to Chief Judge Mayer, includes a discussion on whether the court should employ a settlement coordinator or other alternative dispute resolution program, a talk about possible alternatives to the current practice of scheduling oral arguments for the first week of every month, and a talk led by Judge Timothy Dyk on mutual concerns between trial judges and Federal Circuit judges. Mayer says the off-the-record discussion will give the judges an opportunity “to vent.”

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