Need to find an appellate lawyer with experience in jurisdiction and constitutional law? Just ask Judge Susan Braden of the U.S. Court of Federal Claims.
In an unusual order last month in a constitutional challenge to Section 8(a) of the federal Small Business Act, Judge Braden determined that the plaintiff’s lawyer, despite “substantial experience” before her court and the U.S. Court of Appeals for the Federal Circuit, should have an appellate “lead co-counsel” with jurisdiction and constitutional law expertise. She then offered a list of 11 lawyers who might be willing to step into that role.
“It was a complete surprise to me and a lot of other people,” said William Bruckner of Bruckner & Walker in San Diego, Calif., counsel to Kevcon Inc. In Kevcon v. U.S., Bruckner’s client is challenging the constitutionality of Section 8(a), a government contracts program which promotes the development of small business concerns owned and controlled by socially and economically disadvantaged individuals.
Shortly after the order was issued, the case was transferred to Judge Mary Ellen Coster Williams.
The lawyers on Judge Braden’s suggested list included such conservative legal stars as former solicitors general Theodore Olson of Gibson, Dunn & Crutcher and Kenneth Starr, dean of Pepperdine University School of Law, as well as such appellate veterans as Carter Phillips of Sidley Austin, Charles Cooper of Cooper & Kirk, David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, Edward Bruce of Covington & Burling, and Richard Samp of the Washington Legal Foundation.
“The issues presented concern the extent of the court’s jurisdiction, as well as one of constitutional importance. As such, this is not a typical pre-bid protest,” explained the order by Judge Braden, who was appointed to the court by President George W. Bush in July 2003. Her order added that she had not contacted any of the lawyers and her list was not “exhaustive by any means.”
Bruckner, who has 20 years of experience in the Federal Circuit, said the judge first raised the issue of experienced appellate counsel in a status conference.
“She suggested experienced appellate counsel should be brought into the case as co-counsel, not of counsel,” he recalled. “I had expected it would end there. That she would put that into an order caught me by surprise.”
And so did the subsequent transfer of his case to Judge Williams. “I don’t know anything about the hidden workings of the Court of Federal Claims,” he said. “I don’t know why the case was transferred, but I wish I did.”
Judge Braden declined to comment.