John MARSHALL Award for the Handling of Appeals

Nominee:

Duties:

Justification:

1. He has played a crucial part in litigation arising from the war on terrorism and related issues of law enforcement. When a court ordered disclosure of a list of alien detainees questioned in relation to the events 9/11, he spearheaded the expedited appeal that resulted in vindication of the government's position. Accepting his arguments, the D.C. Circuit explained that disclosure would result in harm to ongoing investigations and was thus prohibited under the Freedom of Information Act. Center for National Security v. D.O.J., 331 F.3d 918 (D.C. Cir. 2003). In related litigation, he coordinated the government's successful efforts to sustain the Attorney General's ability to close immigration hearings for 9/11 detainees. In overturning a nationwide injunction barring hearing closures, the Department successfully argued that open deportation hearings for these designated detainees would reveal sensitive information about the ongoing terrorism investigation and aid terrorists targeting our nation. See North Jersey Media v. Ashcroft, 308 F.3d 198 (3d Cir. 2002).

   In litigation of immense significance to the war on terrorism and other crucial government concerns, Mr. LOEB has led the efforts to win judicial acceptance of the government's interpretation of the Alien Tort Statute. In Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir.2001) (en banc) the panel had held that a U.S. law enforcement officials did not have authority to arrest a person in Mexico wanted for the torture and murder of a Drug Enforcement Agency agent. The panel further concluded that the plaintiff could sue the United States for false arrest and recover under the Alien Tort Statute against a Mexican citizen who assisted the United States. After persuading the en banc court to grant rehearing, Mr. LOEB argued both that the arrest was authorized, and that, in any event, the Alien Tort Statute is only a jurisdictional provision and does not provide a cause of action. After the en banc court rejected his arguments by a vote of 6-5, Mr. LOEB worked with the Solicitor General to successfully obtain review by the Supreme Court, which heard argument this Term.

2. As one of the Department's premier appellate attorneys, Mr. LOEB has successfully defended constitutional challenges to numerous federal statutes and programs ranging from firearms restrictions for persons convicted of crimes of domestic violence to the Navy's chaplain system to the standards for granting asylum. See Fraternal Order of Police v. United States, 173 F.3d 898; Sturm v. U.S. Navy, 2003 WL 22244944 (9th Cir. 2003); Halaim v. INS, 358 F.3d 1128 (9th Cir. 2004). Mr. LOEB's ability to develop a successful strategy and to coordinate the Department's efforts was exemplified by his handling of the constitutional challenges to the Prison Litigation Reform Act. Working closely with other components, Mr. LOEB drafted briefs that became models for the Department on some of the P.L.R.A.'s most controversial provisions, including its provisions permitting parties to seek immediate termination of existing consent decrees.

3. For many years, Mr. LOEB has provided expert appellate representation to government officials sued in their individual capacity (including numerous heads of agencies, the Clerk of the Supreme Court, and the National Security Advisor). In a series of significant cases, Mr. LOEB attempted to limit unfounded claims brought against federal officials. Under prior precedent, a litigant could survive dismissal of his claim merely by alleging that official had taken an apparently proper action for an improper motive. As a result, government officials were subject to discovery and trial based on insubstantial allegations of motive. In Kimberlin v. Quinlan, 6 F.3d 789 (D.C. Cir. 1993), vacated, 515 U.S. 304 (1995), a prisoner had based his suit on the allegedly improper motives of the head of the Bureau of Prisons: the official allegedly sought to silence the prisoner because of his claim that he sold drugs to the Vice President just prior to the 1992 presidential election. The decision prompted a wide range of views within the Department as to the appropriate pleading and proof standards for such cases. In a series of memoranda, Mr. LOEB developed the position which was approved by the Attorney General and ultimately argued to the Supreme Court in Crawford-El v. Britton, 523 U.S. 574 (1998). The Supreme Court's decision in that case makes clear that mere allegations of improper motive are insufficient to subject an official to discovery and trial, and provides government counsel and district court judges with a number of devices to check meritless claims.

   His superb and dedicated advocacy on behalf of individual defendants has been widely recognized. For example, one agency wrote the head of the Division expressing their "profound gratitude" for Mr. LOEB's outstanding defense of their staff members. One HUD official sued in a Bivens case wrote, "[i]t is next to impossible to translate into words * * * how Mr. LOEB has brought a measure of sanity to my world. I will never forget him."

   Mr. LOEB has handled the government's appeals in some of the most sensitive, high-profile discrimination cases brought against federal agencies. For example, in Barnes v. Levitt, 118 F.3d 404 (5th Cir. 1997), he obtained reversal of a district court decision finding the SEC liable for discrimination and awarding more than $1.4 million. In Kempker-Cloyd v. Reno, he successfully defended the government against a sexual harassment claim brought by a current Assistant U.S. Attorney against a then-current U.S. Attorney. Kempker-Cloyd v. Reno, 1999 WL 1111486 (6th Cir. 1999).

4. Mr. LOEB's extraordinary skills have resulted in reversal of damage awards that have saved the taxpayers extraordinary sums. For example, this past year, against very long odds, he persuaded the Federal Circuit to reverse a trial court ruling in a controversial case in which plaintiffs claimed they had been subject to early retirement as a result of instructions issued by the Army in 1992. The trial court held that the more than 1000 plaintiffs could recover full back pay and benefits (including credit for an additional 10 years of service) even though only a fraction of that number could have been actually injured. Accepting Mr. LOEB's arguments, the Federal Circuit ruled that uninjured plaintiffs would not be entitled to recovery, a holding that the Defense Department estimates will save the government more than $1 billion. Christian v. U.S., 337 F.3d 1338 (Fed. Cir. 2003).

5. Because of his special abilities, Mr. LOEB has for several years been called upon to serve as appellate liaison to the Office of Immigration Litigation. In that capacity, he recommended new procedures to streamline and improve appeal and further review recommendations from that Office, which were then successfully implemented These responsibilities might constitute a full-time workload for another attorney; Mr. LOEB has undertaken them with extraordinary success while maintaining the full range of his other commitments. Mr. LOEB reviews dozens of immigration cases each year and reviews all immigration-related memoranda to the Solicitor General. He personally argued three asylum cases in one day to the Ninth Circuit earlier this year and won them all. Also this past year, Mr. LOEB was instrumental in persuading the Second Circuit to reverse a district court ruling that would have imported international law and non-self executing treaties so as to relax the showing required to obtain relief from removal. Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003) (reversing 183 F.Supp.2d 584).

   Previous Honors and Awards:

   Robert Mark LOEB has received a quality step increase or a special commendation award in every year since in became a GS-15 in 1992 . In addition in 1992, he was awarded both a Civil Division Special Commendation and a Special Award for work on the successful defense of the Haitian/Cuban interdiction policy. In 1998, he was awarded a Civil Division Special Commendation Award for leadership role in defending officials from Bivens claims and for coordinating the defense of the Prison Litigation Reform Act. In 2000, he was awarded the Civil Division Special Award for his work on tobacco litigation. In 2002, he was awarded a Civil Division Special Commendation Award for his outstanding service on the Division's Anti-Terrorism Team.

   Synopsis

   Robert Mark LOEB is honored for his many litigation successes, which include numerous victories that have conferred significant benefits on the Government and made major contributions to the development of public law. Mr. LOEB combines the highest skills of advocacy with an ability to coordinate litigation efforts within and among components. As a result, he is called upon to take the lead in defending the government's most important interests where only the very best representation will suffice. His record in achieving appellate victories in the Department's most difficult and sensitive cases make him a unique and invaluable asset for the entire Department.

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   Daniel E. LOEB, eMail: daniel.loeb at verizon.net