Appellate & Supreme Court

Appellate

Appellate proceedings put advocacy to the test. The evidentiary record has been made, the trial judge, jury or agency has spoken, and the case now turns on questions of precedent, procedure and innovative legal theory. This is the arena in which an experienced, imaginative and effective advocate can make a real difference in achieving a successful outcome. This is also an arena in which the lawyers of Steptoe & Johnson LLP have long excelled.

From precedent-setting cases in the US Supreme Court to narrow appeals that affect only a single company, our decades of experience in all forms of appellate advocacy enable us to represent our clients effectively and persuasively before tribunals across the country. We frequently handle cases with important implications for entire industries, and are adept at seeing the “big picture” and not just the details of the immediate case at hand. We look hard for new ways of approaching matters that give our clients the best chance of prevailing in a hard-fought appeal. We also have the perspective to deliver a clear-eyed evaluation of the merits of an appeal and the ultimate likelihood of success.

Steptoe’s experience includes many of the less frequently traveled procedural routes - interlocutory appeals, petitions for extraordinary writs, petitions for rehearing en banc, and even petitions to enforce a prior mandate. In addition, our appellate lawyers are often called in to consult at the trial level, to assure that key legal issues are adequately framed and preserved.

A few figures provide some measure of the depth and breadth of our appellate practice:

Steptoe attorneys have argued on average nearly one appeal per year in the US Supreme Court over the past 20 years, a remarkable statistic considering that the Court currently hears fewer than 100 cases annually out of more than 8,000 appeals presented;
Every year, our appellate attorneys participate in dozens of cases in the federal courts of appeals and in state appellate courts from all parts of the country;
Over the past four years, we have handled appeals in every federal circuit, and in the appellate courts of at least 12 states and the District of Columbia;
We have attorneys admitted to practice in all 12 federal circuits, including seven former US Supreme Court law clerks, at least 27 former law clerks to federal court of appeals judges (spanning 9 of the 12 circuits), and 12 former state appellate court clerks.

Appellate advocacy is an area where experience matters. We welcome the opportunity to put our experience to work for you.

Supreme Court

Experience matters in the US Supreme Court. In view of the thousands of petitions filed annually, the justices have broad discretion in selecting cases for review. They also have considerable freedom in shaping the law. Thus, they are interested in hearing a different form of argument — one that explains why an issue is appropriate for review in the nation’s highest court and how new legal doctrine can be fashioned from longstanding precedent. It is a form of argument to which many lawyers are not accustomed.

Steptoe has this experience—both in persuading the Court that an issue is worthy of review and in synthesizing existing precedent to address a previously unsettled issue. Seven current Steptoe attorneys have argued in the Supreme Court. Over the past 20 years, the firm has appeared in a host of cases, in such diverse fields as tribal sovereignty, energy, ERISA, tax, transportation, and constitutional law. In cases since 1985 in which the firm has represented a party on the merits, our client has prevailed in 11 out of 14 decisions.

Steptoe’s Supreme Court practitioners have gained their experience in different ways. Seven are former clerks to Supreme Court justices. One served in the Office of the Solicitor General of the United States. Another founded the State and Local Legal Center, the premier advocate for local governments in the US Supreme Court. Another has written a prize-winning essay on the Supreme Court’s certiorari practice and works with the National Association of Attorneys General in its moot court program. It is this kind of experience that enables the firm to respond to the special challenges of Supreme Court cases.

The firm’s Supreme Court practice includes the full range of functions available under the rules: petitions for certiorari, briefs on the merits, amicus curiae briefs, oral arguments, and applications for stay.

Petitions for Certiorari. In any given Term, the Supreme Court receives about 8,000 requests for review. Putting aside the roughly 6,000 requests submitted in forma pauperis, typically by criminal defendants, the Court receives 2,000 petitions on its "paid" docket from parties with retained counsel. Of these, it typically grants plenary review in fewer than 100 cases.

Hence the pivotal importance of the petition for certiorari. As against a large universe of other contenders, the petitioner must persuade the Court that the particular case is worth hearing. It is not enough to show that the result below is wrong. The petition must show that the decision below raises an issue of national importance and that the case presents the issue in a way that will permit the Court to analyze it fully and resolve it clearly.

Steptoe has extensive experience in crafting petitions for certiorari. In fact, the head of the practice has written an articles on this subject. Cole, Petitioning for Certiorari in the Big Case, The Litigation Manual (Special Problems and Appeals) (1999). Clients often come to Steptoe after the case has been lost in the court of appeals, seeking both an evaluation of the prospects for certiorari and help with drafting the petition. Our role may also include mobilizing support from amici curiae—friends of the court—who can help persuade the Court that the case has the kind of wider impact that warrants review.

In some ways, these petitions are the ultimate expression of the "art" of Supreme Court practice (even more than briefing and arguing the merits of an appeal). While the Court will reach out to decide some kinds of appeals (for example, an appeal that will determine the outcome of a US presidential election or the scope of an important constitutional right), the real challenge comes in convincing the Court to grant review of a complicated issue under ERISA, the federal tax laws, or another complex federal regulatory scheme. Through the years, Steptoe has proven its ability to overcome the long odds and persuade the Court to accept cases in a variety of areas of law affecting our clients’ interests.

Needless to say, a firm that knows how to write a good certiorari petition also knows how to defeat one. Steptoe has extensive experience in preserving its clients’ victories through oppositions to certiorari. It also knows when it is more prudent to waive a response—and save the client some money.

Briefs on the Merits. Because of the Supreme Court’s ability to make new law, a merits brief must do more than cite existing precedent. It must give the court a vision of what the law could be and explain why that is the better approach to the field.

Amicus Curiae Briefs. Amicus curiae briefs can play a pivotal role in some Supreme Court cases. They can be crucial in persuading the Court to accept a petition. And they can offer a solution that will guide the Court on the merits.

Steptoe has experience with amicus briefs from all sides. It has represented parties who needed amicus support and it has worked with potential amici to galvanize their interest. It has also represented many of the major organizations that consistently file amicus briefs. Steptoe is familiar with the process by which these organizations make their decisions on whether to file a brief. It is therefore aware of the practical and financial limitations on their participation. As counsel for amici, we have worked to develop a perspective on the merits that is both helpful to the Court and consistent with our clients’ needs.

Our amicus practice has achieved some remarkable successes. For example, in a tax case, one of our partners was given the highly unusual privilege of presenting oral argument as an amicus curiae. The Court ultimately rejected the positions of both the Government and the taxpayer, and accepted the solution proffered by Steptoe’s amicus client. Commissioner of Internal Revenue v. Standard Life & Accident Ins. Co., 433 US 148 (1977).

The Supreme Court itself has manifested confidence in Steptoe’s ability to present the perspective of an amicus. In a recent case, when neither of the parties would defend the judgment of the court of appeals, the Supreme Court, by order, appointed a Steptoe partner to present that point of view. In the published opinion, the Court made the comment that his "able representation" had permitted the Court "to decide this case satisfied that the relevant issues have been fully aired." Becker v. Montgomery, 532 US 757, at 762 n.1 (2001).

In all of our amicus representations, we view it as our obligation to tell our clients when an amicus brief can make a difference in the outcome, and when it would only burden the Court. Sometimes, the most responsible course is to let the parties carry the burden of persuasion themselves Our amicus clients have ranged from industry associations, to government agencies, to advocacy organizations dedicated to particular ideas. Of course, Steptoe has also filed amicus briefs at the certiorari stage, as well as many amicus briefs in the courts of appeal.

Oral Argument. Argument before the US Supreme Court is a uniquely challenging experience. The lectern stands so close to the curved bench that some of the justices may be glimpsed only through counsel’s peripheral vision. Questions come fast and furious, from all quarters. Thus, counsel must be ready to give concise answers to questions from both sides of the bench, as well as both sides of the issue.

Steptoe’s lawyers have the skills necessary to meet this challenge. In fact, Steptoe’s Supreme Court attorneys routinely serve as moot court judges preparing advocates at other organizations for their Supreme Court arguments. You can find us performing this function at moot courts sponsored by the National Association of Attorneys General, the Supreme Court Institute of Georgetown Law School, and the State and Local Legal Center. We know that the key to a good oral argument is thorough preparation, and we help others prepare.

Applications for Stay. Often, the first problem confronting a client that has lost in a federal circuit or state appellate court is how to obtain immediate relief from the adverse judgment. Steptoe has experience with the preparation of applications for stay, which are presented to a single justice. In light of changes in the Court’s filing procedures resulting from the recent anthrax threat, it has become even more important to have experienced counsel work with the Clerk’s staff to assure that such an application is considered by the Court on a timely basis. Steptoe approaches this first step in the Supreme Court’s certiorari process with the same intensity as the briefs that follow.

Representative Matters

Energy

Eurodif S.A. v. United States, __ F.3d __, 2005 WL 486776 (Fed. Cir.)
Represented US enricher of uranium in interlocutory appeal of certified questions from US Court of International Trade concerning scope of Department of Commerce jurisdiction over imports of low enriched uranium into the United States. 2005

State ex rel. Utilities Comm'n v. Carolina Power & Light Co., __ S.E.2d __, 2005 WL 1539244 (N.C.) (amicus)
Filed amicus brief on behalf of national electric power association concerning effect of the Commerce Clause on state utility regulation.
2005

American Electric Power Company, Inc. v. United States, 326 F.3d 737 (6th Cir. ) cert. denied, 124 S. Ct. 1043
Represented employer in appeal of $66 million tax deduction complaint concerning corporate owned insurance policy for 20,000 employees.
2003

Atlantic City Electric Co. v. FERC, 329 F.3d 856 (D.C. Cir.)
As lead counsel for electrical utilities in Mid-Atlantic region, won mandamus to enforce court order that FERC lacked authority to deprive utilities of certain statutory and contractual rights.
2003

In re NRG Power Marketing Inc., No.03-1189 (D.C. Cir.)
As counsel for the intervenor utility, persuaded court to deny emergency stay of FERC order directing bankrupt supplier to continue performance under power sales contract.
2003

Atlantic City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir.)
As lead counsel for electric utilities in Mid-Atlantic region, won decision overturning FERC orders requiring them to relinquish various statutory and contractual rights in order to form independent system operator.
2002

Atlantic City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir.)
As lead counsel for electric utilities in Mid-Atlantic region, won decision overturning FERC orders requiring them to relinquish various statutory and contractual rights in order to form independent system operator.
2002

Financial Services

Motorola Credit Corp. v. Uzan, 388 F.3d 39 and 2004 WL 2370656 (2d Cir.), cert. denied, 125 S. Ct. 2270
On behalf of telecommunications financing affiliate, fended off appeal, en banc petition and certiorari petition against individual defendants found liable for fraud. Defendants are now international fugitives.
2005

Richardson v. Standard Guaranty Ins. Co., 853 A.2d 955 (N.J. Super. A.D.)
Represented national credit card issuer seeking to uphold dismissal of putative class action asserting claims under state consumer protection statute.
2004

Insurance

In re Wallace and Gale Co., 385 F.3d 820 (4th Cir.), rehearing and rehearing en banc denied (Nov 15, 2004)
In asbestos case, upheld summary judgment in favor of insurer, on grounds that claims were subject to aggregate limit under relevant provisions of CGL policies.
2004

John Hancock Financial Services v. United States, 378 F.3d 1302 (Fed. Cir.)
Represented mutual life insurance company in appeal relating to the interplay of the "tax benefit rule" and section 809 of the Internal Revenue Code.
2004

Manufacturing

Andrade v. Texaco, 2005 WL 237211 (Cal. App.)
Represented oil company in ongoing toxic tort litigation related to explosion at refinery. Appellate court vacated dismissal of plaintiffs' claims, under mandatory procedural provisions of California Civil Code.
   2005

City of Monroe Employees Retirement System v. Bridgestone, 399 F.3d 651 (6th Cir.)
Upheld dismissal of securities fraud class action against CEO of major tire manufacturer for failure to state a claim.
   2005

Corus Staal BV v. Dep't of Commerce, 395 F.3d 1343 (Fed. Cir.)
Represented foreign steel manufacturer challenging "zeroing" methodology used by Department of Commerce to calculate weighted-average dumping margin for the foreign manufacturer's imports into the United States.
   2005

In re Lockheed Litig. Cases, 23 Cal.Rptr.3d 762 (Cal. App.), review granted, 110 P.3d 289, 27 Cal.Rptr.3d 360 (Cal.)
Defended major oil company, at trial and on appeal, against multiple toxic tort suits. Appellate court affirmed the trial court's exclusion of expert report as inadequate to show causation, and affirmed consequent grants of dismissal or summary judgment.
   2005

Kish v. A-Best Products Co., 827 N.E.2d 327 (Ohio)
Preserved intermediate court's decision to dismiss 60 plus asbestos appeals as untimely filed.
   2005

Nucor Corp. v. United States, __ F.3d __, 2005 WL 1579778 (Fed. Cir.)
Represented foreign steel manufacturer in appeal by domestic steel producers from negative injury determination in ITC antidumping and countervailing duty investigation. Court sustained the negative injury determination, in light of safeguard relief the industry had already obtained.
   2005

Stern v. Chemtall Inc., __ S.E.2d __, 2005 WL 1321305 (W.Va.)
Represented chemical manufacturer in defense of lower court's denial of motion to intervene in a class action for medical monitoring.
   2005

CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107 (9th Cir.)
Obtained reversal of dismissal of contract and trademark action for lack of personal jurisdiction based in part on the newly recognized doctrine of pendent personal jurisdiction.
   2004

Laico v. Chevron U.S.A., 20 Cal.Rptr.3d 307 (Cal. App.)
Successfully overturned toxic tort verdict that was based solely on premises liability. Appellate court held that as a mere property owner, company did not owe duty of safe premises to employees of independent contractor.
   2004

Pinney v. Nokia, 402 F.3d 430 (4th Cir.)
Represented wireless telephone carrier in appeal of dismissal of class action alleging injury stemming from radio frequency radiation emissions on grounds of federal preemption.
   2004

Transportation

BNSF v. STB, 403 F.3d 771 (D.C. Cir.)
Vacated agency order that allowed shipper to initiate a new rate complaint.
   2005

BP West Coast Products v. FERC, 374 F.3d 1263 (D.C. Cir.), cert. denied, 125 S.Ct. 2245
Represented oil pipeline carrier in challenge to agency's authority to order refunds on a rate that the agency itself prescribed.
   2005

City of Riverview v. STB, 398 F.3d 434 (6th Cir.)
Intervening on behalf of railroad, defended the decision of the Surface Transportation Board to grant an exemption for an intermodal transportation facility, thereby preempting local attempts to exercise eminent domain over the property.
   2005

Dorn v. BNSF, 397 F.3d 1183 (9th Cir.)
Reversed compensatory and punitive damages award against railroad in grade crossing accident.
   2005

Early v. BNSF, 2005 WL 1331292 (Mo. Ct. App. June 2005), application for review pending.
Challenged trial court's ruling to exclude defense evidence on spoliation grounds without any finding of bad faith.
   2005

BNSF v. Ramsey, 125 S.Ct. 108 (2004)
Filed for certiorari review on measure of damages in FELA actions.
   2004

Success Stories

Supreme Court Uses Steptoe Amicus Brief in Domestic Violence Decision

News

Chuck Cole, Alice Loughran Speak at National Association of Railroad Trial Counsel Winter Meeting

Publications

Russell: Prosecuting Defense Counsel for Obstruction
November 21, 2007, New York Law Journal
Supreme Court Amicus Brief for Dimick v RPM
2006

Eurodif S.A. v. United States, __ F.3d __, 2005 WL 486776 (Fed. Cir.) Represented US enricher of uranium in interlocutory appeal of certified questions from US Court of International Trade concerning scope of Department of Commerce jurisdiction over imports of low enriched uranium into the United States.		2005
State ex rel. Utilities Comm'n v. Carolina Power & Light Co., __ S.E.2d __, 2005 WL 1539244 (N.C.) (amicus) Filed amicus brief on behalf of national electric power association concerning effect of the Commerce Clause on state utility regulation.		2005
American Electric Power Company, Inc. v. United States, 326 F.3d 737 (6th Cir. ) cert. denied, 124 S. Ct. 1043 Represented employer in appeal of $66 million tax deduction complaint concerning corporate owned insurance policy for 20,000 employees.		2003
Atlantic City Electric Co. v. FERC, 329 F.3d 856 (D.C. Cir.) As lead counsel for electrical utilities in Mid-Atlantic region, won mandamus to enforce court order that FERC lacked authority to deprive utilities of certain statutory and contractual rights.		2003
In re NRG Power Marketing Inc., No.03-1189 (D.C. Cir.) As counsel for the intervenor utility, persuaded court to deny emergency stay of FERC order directing bankrupt supplier to continue performance under power sales contract.		2003
Atlantic City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir.) As lead counsel for electric utilities in Mid-Atlantic region, won decision overturning FERC orders requiring them to relinquish various statutory and contractual rights in order to form independent system operator.		2002
Atlantic City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir.) As lead counsel for electric utilities in Mid-Atlantic region, won decision overturning FERC orders requiring them to relinquish various statutory and contractual rights in order to form independent system operator.		2002

Motorola Credit Corp. v. Uzan, 388 F.3d 39 and 2004 WL 2370656 (2d Cir.), cert. denied, 125 S. Ct. 2270 On behalf of telecommunications financing affiliate, fended off appeal, en banc petition and certiorari petition against individual defendants found liable for fraud. Defendants are now international fugitives.		2005
Richardson v. Standard Guaranty Ins. Co., 853 A.2d 955 (N.J. Super. A.D.) Represented national credit card issuer seeking to uphold dismissal of putative class action asserting claims under state consumer protection statute.		2004

In re Wallace and Gale Co., 385 F.3d 820 (4th Cir.), rehearing and rehearing en banc denied (Nov 15, 2004) In asbestos case, upheld summary judgment in favor of insurer, on grounds that claims were subject to aggregate limit under relevant provisions of CGL policies.		2004
John Hancock Financial Services v. United States, 378 F.3d 1302 (Fed. Cir.) Represented mutual life insurance company in appeal relating to the interplay of the "tax benefit rule" and section 809 of the Internal Revenue Code.		2004

Andrade v. Texaco, 2005 WL 237211 (Cal. App.) Represented oil company in ongoing toxic tort litigation related to explosion at refinery. Appellate court vacated dismissal of plaintiffs' claims, under mandatory procedural provisions of California Civil Code.		2005
City of Monroe Employees Retirement System v. Bridgestone, 399 F.3d 651 (6th Cir.) Upheld dismissal of securities fraud class action against CEO of major tire manufacturer for failure to state a claim.		2005
Corus Staal BV v. Dep't of Commerce, 395 F.3d 1343 (Fed. Cir.) Represented foreign steel manufacturer challenging "zeroing" methodology used by Department of Commerce to calculate weighted-average dumping margin for the foreign manufacturer's imports into the United States.		2005
In re Lockheed Litig. Cases, 23 Cal.Rptr.3d 762 (Cal. App.), review granted, 110 P.3d 289, 27 Cal.Rptr.3d 360 (Cal.) Defended major oil company, at trial and on appeal, against multiple toxic tort suits. Appellate court affirmed the trial court's exclusion of expert report as inadequate to show causation, and affirmed consequent grants of dismissal or summary judgment.		2005
Kish v. A-Best Products Co., 827 N.E.2d 327 (Ohio) Preserved intermediate court's decision to dismiss 60 plus asbestos appeals as untimely filed.		2005
Nucor Corp. v. United States, __ F.3d __, 2005 WL 1579778 (Fed. Cir.) Represented foreign steel manufacturer in appeal by domestic steel producers from negative injury determination in ITC antidumping and countervailing duty investigation. Court sustained the negative injury determination, in light of safeguard relief the industry had already obtained.		2005
Stern v. Chemtall Inc., __ S.E.2d __, 2005 WL 1321305 (W.Va.) Represented chemical manufacturer in defense of lower court's denial of motion to intervene in a class action for medical monitoring.		2005
CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107 (9th Cir.) Obtained reversal of dismissal of contract and trademark action for lack of personal jurisdiction based in part on the newly recognized doctrine of pendent personal jurisdiction.		2004
Laico v. Chevron U.S.A., 20 Cal.Rptr.3d 307 (Cal. App.) Successfully overturned toxic tort verdict that was based solely on premises liability. Appellate court held that as a mere property owner, company did not owe duty of safe premises to employees of independent contractor.		2004
Pinney v. Nokia, 402 F.3d 430 (4th Cir.) Represented wireless telephone carrier in appeal of dismissal of class action alleging injury stemming from radio frequency radiation emissions on grounds of federal preemption.		2004

BNSF v. STB, 403 F.3d 771 (D.C. Cir.) Vacated agency order that allowed shipper to initiate a new rate complaint.		2005
BP West Coast Products v. FERC, 374 F.3d 1263 (D.C. Cir.), cert. denied, 125 S.Ct. 2245 Represented oil pipeline carrier in challenge to agency's authority to order refunds on a rate that the agency itself prescribed.		2005
City of Riverview v. STB, 398 F.3d 434 (6th Cir.) Intervening on behalf of railroad, defended the decision of the Surface Transportation Board to grant an exemption for an intermodal transportation facility, thereby preempting local attempts to exercise eminent domain over the property.		2005
Dorn v. BNSF, 397 F.3d 1183 (9th Cir.) Reversed compensatory and punitive damages award against railroad in grade crossing accident.		2005
Early v. BNSF, 2005 WL 1331292 (Mo. Ct. App. June 2005), application for review pending. Challenged trial court's ruling to exclude defense evidence on spoliation grounds without any finding of bad faith.		2005
BNSF v. Ramsey, 125 S.Ct. 108 (2004) Filed for certiorari review on measure of damages in FELA actions.		2004

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