If any proof is needed that U.S. Supreme Court Justice Samuel Alito Jr. is exceptionally loyal to his former law clerks, look no further than the case of Millbrook v. U.S.
When the case is argued next year—the date has not been announced—the lawyers standing before the court for both sides will be former Alito clerks, appointed by the court for different reasons to make the argument.
And since the case originated in the U.S. Court of Appeals for the Third Circuit, it is safe to say that Alito, the justice who handles administrative matters in cases from that, his home circuit, picked the two for the honor.
Christopher Paolella of the New York firm Reich & Paolella was named October 9 to argue on behalf of Kim Millbrook, a federal prisoner who handwrote his petition and had no other lawyer to represent him in his civil suit against prison guards. The court on September 25 said it would review Millbrook’s challenge to the Third Circuit ruling against Millbrook’s claim under the Federal Tort Claims Act. Paolella clerked for Alito at both the Supreme Court and at the Third Circuit, where Alito previously served as a judge.
The latest appointee is Jeffrey Bucholtz, partner at King & Spalding, who will defend the Third Circuit ruling at issue in the case, because the United States notified the justices in November that it no longer believed the ruling was correct. Bucholtz, appointed by the Court on December 3 to make the argument, clerked for Alito on the Third Circuit.
“It’s a great honor to be thought of,” said Bucholtz who, like Paolella, will be making his first Supreme Court argument. Bucholtz did not want to divulge any conversations he might have had with the justice, but acknowledged that “it is customary for the circuit justice to play a leading role” in appointing counsel to argue an orphaned position like his. Bucholtz also said, “I don’t think I ever actually told [Alito] that I wanted this kind of assignment. He just assumed I would.”
And Alito was right. After briefly checking for case conflicts, Bucholtz said yes. Before rejoining King & Spalding in 2009, Bucholtz served in leadership positions at the Justice Department’s Civil Division, which, among other things, handles Federal Tort Claims Act cases. Bucholtz has lengthy experience in litigation under the law.
In the case before the court Millbrook, serving a prison term on drug, firearm and witness tampering charges, claimed a prison guard sexually assaulted him. The district court and the Third Circuit ruled against the claim, finding that it was not covered by any of the exceptions to sovereign immunity under the federal tort law. After first opposing review, the government on November 30 filed a brief stating that the claim did come under an exception to immunity.
“I’m still digging into the case,” said Bucholtz a few days after the assignment was announced. He acknowledged that the government’s switch on the immunity issue is a signal that the stance he will be taking before the court is “a tough position.” But he is determined to fill the court’s need in such a case to have “the benefit of advocacy on all sides” of the issue.
The 41-year-old Bucholtz says the press of other business at the firm won’t allow him to “drop everything” and prepare exclusively for the Supreme Court assignment. Nor, he said, will his two daughters, age five and two.
But he’ll have the assistance of King & Spalding’s nine-member appellate team. Bucholtz said appellate litigation has been “an active and growing part of our practice” since its leader Paul Clement’s highly public departure in 2011 over a disagreement with firm management. “Paul is a good friend, and we are really happy for his success” since leaving the firm, Bucholtz said. Daryl Joseffer, formerly principal deputy solicitor general under Clement, now heads King & Spalding’s appellate practice.
Tony Mauro can be contacted at email@example.com.