ORALHISTORY OF ROBERT KOPP
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Judy Feigin, and the interviewee
is Robert Kopp. The interview took place at the home of Robert Kopp in Bethesda, Maryland,
on Thursday, April 16, 2015. This is the ninth interview.
MS. FEIGIN: Good morning.
MR. KOPP: Good morning.
MS. FEIGIN: Last time we talked about life at the Justice Department, but we held off until
today to discuss the amazing panoply of cases that you participated in either
directly or as a reviewer. I know we won’t be able to get through them all today,
but we should make a good start. Probably the best way to do that is to divide it
among topics, so let’s start with the reason the Section first began, which was to
protect the public fisc. Lots of cases on that. Want to tell us about some of the
MR. KOPP: Yes. The Civil Division was originally set up as a Division to deal with monetary
claims against the United States. With the passage of time the government has in
an increasing number of statutory provisions waived its sovereign immunity with
respect to suits over money, and the litigation load for the Division in this area has
become more and more significant. In recent years, there have been suits handled
by the Appellate Staff where the amounts of money at stake have been staggering,
and they have also been very interesting suits. Sometimes they involve factual
situations which someone who hasn’t been immersed in government litigation
might think were not terribly attractive, but with the sums that were involved –
and you consider that the sums at stake came from the taxpayers of the country –
the defense of these suits was extremely important in terms of defending the
government and protecting its budget. For instance, one of the cases that our
office was involved in during the time that I was the Director was a case called
Quiban v. U.S. Veterans Administration29 which involved a suit brought by
Philippine war veterans who had fought on the side of the United States in World
War II, and their surviving spouses. They were seeking to receive from the
United States some $2 billion in veterans’ benefits to be paid annually to them.
The Civil Division and our office defended against those suits because we felt that
the statutes did not authorize that type of payment, notwithstanding that the
veterans had been risking their lives on behalf of the United States during the war.
MS. FEIGIN: Was this disability for injuries incurred during the war?
MR. KOPP: Yes. Basically disability that results from the war and also survivor’s benefits. It
was not a terribly attractive position in terms of equities for us to be in, but the
key thing about money coming from the federal fisc is that there’s sovereign
immunity that bars it from being spent unless authorized by Congress. So if the
authority waiving sovereign immunity isn’t there, the money can’t be spent.
MS. FEIGIN: In cases like that where the facts are really difficult, is there thought about settling
the case just because it’s so ugly, or is the principal seen as the paramount issue?
MR. KOPP: It depends on what area you’re in and what the relevant statute says. In this
particular case, we felt the statutory authority simply wasn’t there to make these
payments. In fact, if you looked at the statute, there was one type of Philippine
war veteran that did get payments because they were authorized by Congress, but
other types were not. When the case got to the Court of Appeals, the D.C.
Circuit, in an opinion by Judge Ruth Ginsburg, agreed with us that
29 Quiban v. U.S. Veterans administration, 928 F.2d 1154 (D.C. Cir. 1991).
notwithstanding the sacrifices of these war veterans, the authority simply wasn’t
there to make the payments. In that situation, if you don’t have the authority,
there’s nothing you can do about it. Eventually, Congress felt that something had
to be done and changed the law and did permit at least some payments to these
Now talking about difficult situations, some of the worst cases that we had
in terms of facts were those under the Federal Tort Claims Act where you had
what we lawyers euphemistically call “damaged baby” cases, where there was an
error by government medical personnel that caused serious and tragic damage to
an infant, and the parents would sue the government. If you look at what
happened, the government sometimes was not in the position of putting its best
foot forward in terms of the facts of the case. A district judge in those
circumstances could well be influenced by emotion and award damages far
beyond what were any sensible limits. We would look closely at those cases in
Appellate and make recommendations to the Solicitor General, and the bigger the
sums were, the more we felt obliged to look very, very closely at them in terms of
recommending appeal. Some of these cases involved really horrible facts where
we succeeded in obtaining very significant reductions in the judgment. For
instance, in a case called Dickerson v. United States,
30 which involved horrible
damages to a baby, we reduced the judgment in favor of the family from
$45 million to $20 million. Obviously $20 million is still a substantial award, and
we just felt that on the facts, you couldn’t justify the larger sum awarded by the
30 Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002).
These suits over damages are brought under statutes like the Federal Tort
Claims Act, and the Tort Claims Act is a waiver of sovereign immunity which is
restricted by the time limits which are written into the law. If you are a plaintiff’s
lawyer, you have to be very careful to bring a suit on behalf of your client within
the statutory time limits, which in general are either two years to bring suit or six
months after denial of an administrative claim, and if the suit isn’t brought within
the statutory time, you’re just out of luck.
One of the most well-known series of cases involving statutes of
limitations we were involved in were the cases that arose out of the activities of
what is loosely known as the Whitey Bulger gang in Boston. That was a gang
that was in existence for over thirty years. Bulger worked his way up to
eventually become head of the gang and was assisted by a corrupt FBI agent who
ended up in jail prior to Bulger’s capture and conviction. There were a good
number of people who claimed damages because of activities of the gang in
conjunction with what plaintiffs alleged was support for the gang by the FBI, but
many of them were very slow in bringing suit. Thus as government lawyers, we
felt it our duty to raise the statute of limitations as the defense, and in a number of
cases, we were successful.
MS. FEIGIN: You say they suffered injury. Some people were murdered.
MR. KOPP: Yes. The thrust of these cases was what was the FBI’s role, and as I say, there
was one person from the FBI office in particular whose conduct essentially moved
from being a government agent to being a co-conspirator with the gang. But not
all of the people who were suing ended up being barred by the statute of
limitations, and some of these cases were to prove quite costly to the government.
Perhaps the worst of them was a case called Limone v. U.S.
31 which arose out of
facts from the 1970s but which was eventually decided by the federal courts in
2009. It involved four people who had been involved in a relatively minor role in
various petty criminal activities. Prosecution against them for murder was
brought by the state of Massachusetts. These four people were initially convicted.
They served some thirty years’ time in prison. Two of them died while in prison.
Eventually it was figured out that they had wrongfully been convicted. The FBI
admitted it had not disclosed critical evidence concerning a key witness. The
survivors were released and of course they and their family members sued the
federal government. The District Court entered a judgment in excess of
$100 million, and we just felt we had to appeal, notwithstanding that the facts
were so bad. The First Circuit affirmed. The only consolation was that the First
Circuit did say that it thought that the District Court judgment was more than the
plaintiffs deserve but the First Circuit was an appellate court and the District
Court had broad discretion in determining the amount of damages that were owed.
It was typical of these Boston gang cases that the underlying facts were
extremely unattractive. For example, there were a number of cases involving two
young women whom Bulger grossly killed.32
Again it was a situation where we
felt we were obliged to defend, and while the sums were not in the $100 million
range, they were significant. Notwithstanding the bad facts, we were responsible
31 Limone v. United States, 579 F.3d 79 (CA 1, 2009).
32 Davis v. United States, 670 F.3d 48, (1st Cir. 2012).
for defending the public fisc and we felt we had a duty to pursue the cases through
the Court of Appeals.
Our litigation in defending the public fisc was not confined to tort cases.
For instance, the Tucker Act was a waiver of sovereign immunity permitting suits
for contractual damages in the Court of Federal Claims and then appeal to the
Federal Circuit. One of the biggest cases involved the cancellation of the A12
aircraft, which was a multi-billion dollar project, and the cancellation led to years
of appellate litigation. We worked very closely with the trial team when the case
reached the Court of Appeals. The government lost in the trial court, and we
obtained a reversal and a remand in the Court of Appeals for the Federal Circuit.33
Because we had been faced with a multi-billion dollar judgment, our reversal of
the Claims Court judgment changed the momentum of the litigation and
eventually the case was settled for a much more reasonable sum than the multibillion dollar judgment that had been entered by the trial court.
There were cases that had larger financial stakes than the A12 litigation.
One of them was a case called Schism v. U.S.,
34 which involved people who had
served in the military during World War II and afterwards. The plaintiffs in
Schism alleged that when they signed up for military service, the recruiters had
promised them that they would be provided with free medical care for life and
they would be provided that medical care in military facilities when they left the
military service. They brought suit, and a panel of the Federal Circuit agreed with
the plaintiffs, that since the recruiters had promised them lifetime medical care for
33 McDonnell Douglas v. United States, 182 F.3d 1319 (Fed. Cir. 1999).
34 Schism v. United States, 316 F.3d 1259 (Fed. Cir. 2002 en banc).
free in government facilities, they were entitled to it. However, we went for en
banc, and Roy Hawkens and Barbara Biddle of our office convinced the full court
that the recruiters had no authority to contract away the government’s money.
That was something that had to be determined by Congress. If you were a
recruiter, you just couldn’t go out and make a promise that would be binding on
the government when there wasn’t statutory authorization for it. The en banc
Federal Circuit agreed with us. It was I think easier for the court to agree with our
position because over the years after World War II, Congress had been focused on
issues like that and had enacted a series of laws which became much more
specific in terms of what the rules were for when people who served in the
military could get medical service in military facilities. So we won the case in the
Federal Circuit. Had the litigation come out the other way, the cost to the federal
government might have in fact been as high as $15 billion. Money was really
something that was at stake in our litigation.
I should add a couple of big money cases which were unique. For
instance, the government after World War II had all these military bases that it
was operating, and over the years it was very expensive to operate these bases.
Meanwhile, the government was owning land that was becoming more and more
valuable for other uses. Starting in 1988, Congress adopted legislation for a
procedure by which military bases could be closed. Essentially that procedure
was to provide that under a very tight time schedule, there would be a
recommendation from a Base Closing Commission to the President. The
President would then decide whether to accept or reject the recommendation of
the Commission, and Congress then had a limited period of time in which to set
aside the President’s decision. As one might expect, the closing of just about any
military base could cause much opposition in a particular community, and these
base-closing determinations led to a lot of litigation. The litigation typically
would come up under very tight time tables because the statute had very tight time
limits written into it, and so our attorneys, who were experienced people like
Doug Letter and Scott McIntosh, would find themselves being presented with a
new appellate case on a very short timeframe. They only would have a couple of
days to prepare their brief in the case, file it and argue it. We were very
successful in the litigation in the courts of appeals. One of our cases, however,
did go to the Supreme Court. In a case called Dalton v. Specter,
35 we succeeded
in having the Supreme Court rule that Congress had intended a process where the
courts would not be involved in reviewing the President’s decision. That was
quite a significant ruling and saved the government many billions of dollars.
MS. FEIGIN: I would note that Doug Letter now has your old job as head of the Appellate Staff.
His oral history is being taken for the Society, so for anybody looking at your oral
history who wants to follow up on some of these cases that you’ve said he’s
involved in, he may have discussed them in his oral history as well.
MR. KOPP: That’s very good because as I go through this, you may find situations where
Doug knows a lot more than I do on some of these matters.
In relatively recent years, by which I mean the 21st century, perhaps one of
our biggest, if not the biggest, case over money was the litigation which was
brought in Cobell v. Norton. That was a suit that was instituted in 1996 when a
35 Dalton v. Specter, 511 U.S. 462 (1994).
class of over 300,000 Indians alleged that for essentially a century there had been
an error by the federal government in terms of accounting for funds held in trust
for them. The suit was initially handled by the Environment Division, which is
the traditional Division for handling cases that are relating to Indians. On an
interlocutory appeal from a District Court ruling by Judge Lamberth in the
District Court here, the D.C. Circuit in 2001 generally affirmed the Court’s ruling
that the government had failed on a massive scale in performing its trust
obligations to the Indians and remanded the case for further proceedings.
MS. FEIGIN: Before you go on, you said this was one of the biggest cases financially. Do you
have any sense how much money we’re talking about?
MR. KOPP: Eventually, and I’ll get to it in a moment, the case was settled for over
MS. FEIGIN: So we know it was more to start with. And I should also say that I believe
Judge Lamberth’s oral history will be taken. I suspect this case will be a part of
his story as well since it was major litigation.
MR. KOPP: As an aside, since Judge Lamberth is obviously at the center of this, I should add
that when he was an Assistant U.S. Attorney, I worked very closely with him, and
when he became a judge, I thought it was a very good appointment. I’ve always
respected him, but that doesn’t mean that we didn’t take a good number of
appeals from his rulings (laughter). Basically what happened in Cobell was that
after the D.C. Circuit affirmed Judge Lamberth’s decision in 2001, he became
36 Cobell cases in the Court of Appeals for the D.C. Circuit during Robert Kopp’s tenure: Cobell v. Norton, 240
F.3d 1081 (2001); Cobell v. Norton, 334 F.3d 1128 (2003); In re Brooks, 383 F.3d 1036 (2004); Cobell v. Norton,
391 F.3d 251 (2004); Cobell v. Norton, 392 F.3d 461 (2004); Cobell v. Norton, 428 F.3d 1070 (2005); In Re
Kempthorne, 449 F.3d 1265 (2006); Cobell v. Kempthorne, 455 F.3d 301 (2006); Cobell v. Kempthorne, 455 F.3d
317 (2006); Cobell v. Salazar, 573 F.3d 808 (2009).
very unhappy with what he felt were the government’s actions in implementing
the rulings, and he eventually, on the remand from the 2001 ruling, found that the
government was not successfully moving towards an appropriate accounting, and
he found the Secretary of Interior to be an unfit trustee and in contempt. Up to
that point, the case had been an Environment Division case, but the Civil Division
had started in the District Court to work with the Environment Division on the
Following the contempt proceeding, the case was transferred to the Civil
Division. So we got into the case and we argued that the government had in fact
started doing an appropriate task of accounting for what was owed to the Indians,
but the District Court made a series of rulings that we found very troubling, and
we felt that the court’s rulings were improperly interfering with the agency’s
discretion to handle what was an incredibly complex task. Civil’s arguments did
not go over well in the District Court in terms of the Secretary’s approach to how
the accounting should be handled, and the District Court, in a series of rulings that
had some very harsh language for the government, entered orders that we felt
were not only interfering with what the government was trying to do to implement
the accounting but were really counter-productive.
We took a series of appeals. Eventually, by 2006, we had taken eight
appeals to the D.C. Circuit. On our eighth appeal, the Court noted that with
respect to the eight appeals Civil had taken, each time the Court of Appeals had
set aside the District Court order or other action against the government. Thus the
Court of Appeals at that point agreed that the case should be reassigned to a
different trial judge.
MS. FEIGIN: These were obviously very harsh rulings by Judge Lamberth. He’s shutting down
the computers, and I assume a lot of it was personally directed toward the
Secretary. Did you have any sense of the Secretary’s personal response to all
MR. KOPP: I know that people in the Interior Department and elsewhere in the Executive
Branch were very upset over what was happening. They felt that they were in
good faith trying to achieve an appropriate accounting and that the rulings of the
District Court – and you mentioned the fact that the judge at one point shut down
the Department of Interior’s computers – that these rulings were just making an
incredibly difficult task to begin with much more difficult. As I say, after we took
eight appeals, the court directed a reassignment to a different judge. After the
shift, the case still had one more trip to the Court of Appeals on the merits, but
that one Court of Appeals decision set guidelines that led to the parties
negotiating a settlement. Under the settlement, slightly over $3 billion would be
distributed to the Indians. That distribution eventually was implemented, and it
brought to an end one of the most unfortunate histories in the government’s
relationship with the Indians.
MS. FEIGIN: Let me ask one more question about that case. I don’t quite understand why it got
shifted from Environment to Civil. There must be a reason.
MR. KOPP: I was not plugged into what was the precise reason, so I can only speculate as to
why. One might be that the case had become such a complicated and difficult
case that the people high in the Department felt that it really needed new blood.
Another might be that the people in the Environment Division wanted new blood
to come in. Also, people felt that the subject matter in terms of exotic remedial
orders was something that Civil Division had particular expertise in. I wasn’t
involved in the decision for it to come to Civil. I just knew that it came to Civil.
The thing really was an extraordinarily challenging case. I felt looking back that
we did very well because the basic eight appeals that we took set up the case in a
way that, after the reassignment from Judge Lamberth, the case was placed in a
posture where the District Court, the new judge, was able to analyze it in a way
that set up the basis for one more Court of Appeals merits decision and eventually
MS. FEIGIN: In all the cases you’ve talked about so far, you’ve been defending the public fisc,
but I know you sometimes were on the other side, getting money for the
government. Can you give us an example of that?
MR. KOPP: Yes. As you mentioned, the Civil Division principally was defending in terms of
suits against the government for money, but it did have one component, in
particular, which had the authority to bring suit as a plaintiff under the False
Claims Act against people who were taking fraudulent actions against the
government. The government was able under the statute, if it prevailed, to obtain
treble damages. Over the years, thanks to people like Mike Hertz, who was head
of the Frauds Unit and who had been in our office before he went to that position,
the Frauds Unit became more and more successful in recovering large judgments.
We handled some of their cases in the courts of appeals and were successful in
recovering some very large judgments, sometimes many millions of dollars. I
must say that for an office that basically had the job of being the government’s
defense attorney, it was very refreshing to also have cases where the government
was the plaintiff and the office was able to bring in money to the government as
MS. FEIGIN: I assume mostly in those cases you’d be wearing the white hat.
MR. KOPP: Businesses on the other side of course wouldn’t agree to that, but in most of these
cases we felt we were wearing the white hat. As I’ve mentioned, a lot of our
cases did arise in facts that were not terribly attractive to outsiders, and it was nice
to be in a case where we could win a judgment for millions and millions of dollars
against a corporation where a court had found that it had been engaged in fraud
against the government.
MS. FEIGIN: Does any one in particular stand out?
MR. KOPP: There were a lot of cases. There was a case, for instance, United States v.
37 where Doug Letter and Tom Bondy in our office obtained affirmance of
a judgment of $64 million in favor of the government. You would have sums like
that in these False Claims Act cases.
MS. FEIGIN: So beyond the fisc, you did other things (laughter).
MR. KOPP: Yes. We indeed did other things, and a good part of our job was simply
defending actions taken by the Executive Branch and defending the authority of
the Executive Branch to do those actions. For instance, one of the most important
areas we were involved in was litigation concerning the census. As the end of a
decade would approach, it would become very predictable that our office would
37 United States v. Rogan, 517 F.3d 449 (7th Cir. 2008).
be involved in some way in significant litigation concerning the census. It was
just very predictable that say in about 1978 or so somebody would be suing over
the 1980 census. The pattern of suits starting in 1978 or 1979 or 1988 or 1989
was one that persisted through the decades. There were a significant number of
these census cases. There still may be into the future a significant number of
these cases, but maybe less serious ones in the future than there have been in the
past because one of the most significant rulings that we were involved in was a
census case that was decided in the 1990s which involved the enumeration of the
census and the question of a statistical adjustment. The Supreme Court in that
case – it was Wisconsin v. City of New York38
– agreed with the government
position that the method of how you calculate the enumeration of the census was
basically committed to the discretion of the Executive Branch and upheld the
decision of the Secretary of Commerce not to make a statistical adjustment to the
1990 census. Had the opposing view been accepted, it’s very likely that future
censuses would have been bogged down, at least for quite a while, in litigation
over statistical adjustments and how you make them. Even so, there has been
plenty of census litigation, and I’m sure that given the stakes, there probably will
into the future be a significant amount of census litigation.
In a very different area involving the Executive Branch, we were involved
in an interesting series of cases, appeals concerning the White House’s
management of its computer system. This was a series of cases called Armstrong
38 Wisconsin v. City of New York, 517 U.S. 1 (1996).
At the end of the Reagan administration, plaintiffs, led by a journalist
by the name of Scott Armstrong, brought suit arguing that the White House was
not in compliance with federal recordkeeping requirements in the way it was
handling its computers and the backup tapes on the computers. The practice at
the time was that the White House computer system did conduct backup tapes but
normally after a few months they were then not preserved, and the tapes were
reused so you couldn’t say two years down the road go search for something and
find what was on a backup tape. Armstrong was represented by some very fine
attorneys, such as Alan Morrison, who I know many people in the D.C. Circuit
and the District Court here are familiar with.
MS. FEIGIN: And I believe his history is also in the Society’s repository.
MR. KOPP: I haven’t looked at his history so I don’t know what he’s saying about this
episode, but I will say if I can deviate a bit from the narrative, that Alan was an
extremely good attorney. When I was at law school, he was in my law school
class at Harvard, and we were in the same section. Harvard at that time had very
large classes where you’d have 150 people or so in a class and most of us were
absolutely terrified about talking out in class, but Alan was one of a small group
who would talk in class, and he was just brilliant. I wouldn’t say he was one of
my idols, but he was certainly one of the people in law school whom I admired
the most. While as a government attorney I always tended to be on the other side
from him, I always thought it was a pleasure to be in litigation with counsel on the
other side being somebody like Alan. Certainly in the White House computer
39 Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991); Armstrong v. Executive Office of the President, 1 F.3d 1274
(1993); Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996); Armstrong v. Executive Office
of the President, 97 F.3d 575 (D.C. Cir.); see also Public Citizen v. Carlin, 184 F.3d 900 (D.C. Cir. 1999).
tapes litigation, we saw some very good lawyering from Morrison’s side of the
The litigation over the White House tapes produced a number of appeals.
What happened was eventually a mixed result. We were able to get a decision
from the Court of Appeals indicating that the President under the Presidential
Records Act could not be reviewed by a court, and we were also able to persuade
the D.C. Circuit that the National Security Council was essentially an arm of the
President and also not subject to review. But statutes like the Freedom of
Information Act and Federal Records Act produced litigation that went on for
years. Eventually the sides became more willing to work out settlements and
agreements, and the litigation ultimately went away with both sides being able to
point to accomplishments that made them think that they had been successful in
the litigation. We felt that we had achieved good results with respect to the
President. I think Alan’s people felt that they had achieved good results with
respect to the agencies that were involved.
One of the interesting things about the litigation was that one of the people
who worked on our team in the case was Patricia Millett, who of course is now a
judge on the D.C. Circuit.
MS. FEIGIN: As we do this interview, there is a controversy brewing about the computer
records of former Secretary of State Hillary Clinton. Do you think the Armstrong
litigation would have any bearing one way or another? I’m not asking you to
predict an outcome, but is that litigation relevant to the current controversy?
MR. KOPP: I am going to leave that question to others. I am sure enough will be written on
the topic. But I do want to make a generic comment that applies to the
government’s computer recordkeeping as a whole.
As we have to some extent discussed, there was in the late 1990s and the
first decade of this century a whole series of cases involving computer records,
the Federal Records Act, the Freedom of Information Act, and the role of the
Archivist. I think the government won its share of the cases, and the plaintiffs
won their share of the cases. As the litigation clarified the law, the government
did have a significantly enhanced respect for preserving records and having
systems for how you treat computerized material. Unfortunately, I think a lot of
the law that evolved during that time– not to speak of the necessary funding –
didn’t necessarily trickle down terribly well through all of the government. I
know even in the Department of Justice, which I think was much more advanced
than just about any agency in terms of treating government records, I felt that we
really weren’t doing enough to have our own systems in place the way they
should have been. If that’s the way things were at Justice, you can imagine how
they were at other agencies. So the transition to computerized recordkeeping has
been a slow one. I hope maybe today things are much better than they were when
I was in the government and we were litigating over this. But I think progress has
probably been a lot slower than one would have liked.
MS. FEIGIN: Another thing that’s in the news right now is executive orders and the power of
the President to issue them. I think that’s often a question, especially towards the
end of a presidential term. Is that something your office got involved with too,
upholding the scope of executive orders or the right to issue them?
MR. KOPP: It probably was, but I don’t think it was at issue as much as it is now. There were
a few cases about the President doing things by executive order, but I think it’s
become a much bigger issue today because the deadlock within the government is
so serious now. Even when there were administrations in the White House that
were different than the majority in Congress, you didn’t really have the deadlock
that you do today.
MS. FEIGIN: In terms of other cases that you litigated on behalf of the Executive Branch, any
come to mind?
MR. KOPP: One of the most interesting ones was a suit that came up in the Bush
administration, and it involved the President’s White House staff. Some of the
people who are reading this may remember that at the end of the George W.
Bush administration, there was a dispute concerning the White House and
whether former White House Counsel Harriet Miers should testify before the
Congress. As counsel for the Executive Branch, our duties included representing
the White House in litigation, so we were in the litigation that was brought by
counsel for the Congress against Harriet Miers. We defended against the
litigation targeting her for refusing to appear before a committee of Congress to
testify about the resignation, which apparently had been forced, of nine U.S.
Attorneys. That was a big, controversial issue during the end of the
Bush administration. The District Court ordered that Miers appear to testify,
although the court said that she could invoke executive privilege in response to
specific questions. Also, White House Chief of Staff Joshua Bolten was ordered
to produce relevant documents. We went to the Court of Appeals to get a stay of
that order, and the Court had us do extensive briefing on the stay motion. It then
granted us a stay.40
By that time it was near the end of the Bush administration.
The Court of Appeals, instead of expediting the case so that it could be quickly
decided, apparently decided that while the issues are very important, they were
not the type of issues that one should rush through, and it set the case down for
regular scheduling. The Obama administration then came into power. With the
change of administrations, the controversy over whether Miers and Bolten should
comply suddenly became not so important, and the parties were able to work out a
settlement, which permitted Miers to testify.
MS. FEIGIN: This was the D.C. Circuit?
MR. KOPP: This was in the D.C. Circuit.
MS. FEIGIN: I assume you think it was not an accident that they let this happen. This was their
strategy to avoid having to handle the case?
MR. KOPP: Well, I hate to read what’s in a judge’s mind, but that was certainly the obvious
consequence of putting the case down for briefing on the normal schedule.
MS. FEIGIN: I think people down the road who read this may not know so we should put this
case in a little more context. Harriet Miers is not just anybody in the President’s
office. President George W. Bush wanted her to be a nominee for the Supreme
Court. In fact he put forth her name and she ultimately withdrew.
MR. KOPP: Exactly.
40 Committee on the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008).
MS. FEIGIN: So she has a place in history independent of this case, but it made this case I think
seem more important.
MR. KOPP: That’s right. She was somebody that in the second half of the Bush
administration was very much in the news.
MS. FEIGIN: Also I should say I believe, correct me if I’m wrong, that the firing of the nine
U.S. Attorneys was one reason that the Attorney General, Alberto Gonzales,
ultimately stepped down. So that was not just an everyday happening.
MR. KOPP: There are lots of things going on obviously.
MS. FEIGIN: So these cases, put in context, loom large, because there was a lot of political
swirl around the participants.
MR. KOPP: I think that’s right. Given how politically charged things are today, I think the
Bush II administration was part of the time when the world in which we were
operating involving the Executive Branch became a much more political place
than it had been previously, even though, of course, you can never take politics
out of the running of the government. But I think the attitudes that we have today
I’m talking in 2015 in terms of the political deadlock that we have in
government today came from seeds that were sown long before we reached the
MS. FEIGIN: And if we’re talking about political swirl, we cannot avoid President Clinton, who
was of course impeached. One of the big cases, and I know the Office was
involved so I have to ask you about it, involved Paula Jones.
Do you want to
remind people what that was and at least what the Office had to do with that?
41 Clinton v. Jones, 520 U.S. 681 (1997).
MR. KOPP: Yes. Paula Jones was a person who sued President Clinton for damages because
of advances she said he made to her before he became President. President
Clinton had his own counsel in the litigation. The United States filed independent
briefs in the case in the Court of Appeals and at the Supreme Court level to
present the case from the viewpoint of the institutional interests of the President.
When we were discussing what I would be talking about today, you asked
me about the case and I drew a blank in terms of responding to it because I had
completely put it out of my mind. It made such a small impression on me. Now
maybe I just put it out of my mind because I didn’t want to think about it
(laughter). But I really had very little memory of anything that happened about it
concerning our office. Then I pulled the briefs in the Court of Appeals, and I saw
that the names of attorneys from our office, Scott McIntosh and Doug Letter,
were on the filings in the Court of Appeals and they were on the Supreme Court
brief as well, so I began to question myself as to what was our role. I think, and
I’m just speculating because I’m still drawing a blank, I think probably what
happened was if you look at the Court of Appeals briefs, you’ll see that the names
on the briefs include, in addition to Doug Letter and Scott McIntosh from our
office, they have Deputy Solicitor General Edwin Kneedler and the name of an
Assistant to the Solicitor General, Malcolm Stewart, on them. And I think what
probably happened was that this was one of those rare cases where even though
it’s in the Court of Appeals, the case became a Solicitor General operation. Even
though our attorneys were involved, they’re more or less operating as a sort of
appendage of the Solicitor General’s Office.
You mentioned that Doug Letter was giving an oral history. I would defer
to whatever Doug has to say about it because as I say my memory of the
Paula Jones case is really next to nothing. That doesn’t mean our attorneys
weren’t involved in it; it just means that it somehow didn’t make much of an
impression on me.
MS. FEIGIN: I assume the government’s position was he should not be sued during the time
that he remained in the presidency.
MR. KOPP: Our concern, and I think it really is a very legitimate concern even though the
Paula Jones case has so far been the only case where it’s been a problem, is that
you could have a suit brought against the President while he’s in office for action
taken before he became President, and it could be very time consuming in light of
the time that it takes the President to focus on the case. And when you see all the
things that happen in the world these days, you realize the President never has a
moment that is truly a free moment. So I think there really is a legitimate concern
about a President being required to defend a suit actively going on against him
personally while he is the President. It’s hard to disagree with the way the
Supreme Court came out, that the rules are the same for everyone, but I don’t
think it’s a simple matter, particularly given the way people have become so
combative in politics these days. You could see something like this down the
road becoming a serious problem, but I’m not going to question the Supreme
MS. FEIGIN: We probably have time for one more category of cases. Let’s do immigration,
which also happens to be on the front burner today in the news. It’s obviously
been an important topic for Civil Appellate for a long time.
MR. KOPP: That’s right. We are not the office that normally handles immigration cases, but
there were some immigration cases that became so complex and of such
significant importance in terms of the government as a whole that we did become
involved in them. I mentioned, for instance, one case when I was not yet head of
the Office where I was involved which was the Iranian immigration case.
Another huge immigration case where our office was involved concerned
Haitians. This was a very tragic situation that was occurring at the beginning of
the 1990s where there was political unrest in Haiti and a coup. Thousands of
Haitians then sought to escape. They were so desperate that they took to sea in
very flimsy boats, and they had the hope that they would reach Florida. They also
hoped they would not drown at sea, which was something which did happen to a
number of them. The Coast Guard was out there and when it saw them, it would
pick them up at sea, but unless they were political refugees who had a potential
claim to asylum, the Coast Guard and the government concluded that they should
not enter the United States; instead, the U.S. government would repatriate them
and send them back to Haiti. This was, of course, very controversial. The Yale
Law School in particular decided it should do something about this.
MS. FEIGIN: Give us the timeframe. The 1980s?
MR. KOPP: We’re in 1991.
MS. FEIGIN: So they’re at sea in 1991?
MR. KOPP: Yes. Harold Koh was Dean of the Yale Law School at the time. He was
somebody who in the Obama administration became State Department Legal
Adviser and our office worked closely with him on State Department matters.
But when he was Dean of Yale Law School in 1991, he was teaching a class
where he had his students involved in litigation. He was so upset over what was
going on with respect to the Haitian refugees that the class became involved in
representing the Haitian refugees. I might add that they were quite good. We
always did in our office over the years have a number of really great people that
came out of the Yale Law School environment. This was the Law School’s pro
bono project at that time in terms of providing representation. The Haitians who
were picked up brought suit against the government, and in the litigation, they
sought relief that would have them being released into the United States. They
didn’t want to return to Haiti. They drew a District Judge who was very
sympathetic to their position. In December of 1991, he entered what was
essentially a preliminary injunction barring the government from returning them
to Haiti. We felt that there was absolutely no basis for the Court’s interfering
with the government in what it was doing outside the borders of the United States.
We therefore took an emergency appeal to the 11th Circuit and at the end of
December of 1991, we obtained a reversal of the injunctive decree. But the
District Court was not convinced that the government was correct, and in swift
succession, it entered three more injunctive decrees, and we took appeals from all
of them. We had to do a whole series of briefs. The case was considered by the
11th Circuit on an expedited basis, and we got all the District Court orders
It was an amazing litigation. Our team was three attorneys, Ed Swaine,
John Daly, and the supervisor was Mike Singer. On the other side there was this
very large number of students from the Yale Law School Clinic. Our attorneys
would joke about the fact that there were just the three of us on one side and over
twenty people on the other side of the case. During the time that the case was in
the Court of Appeals, I remember our attorneys virtually every night were in the
office working on the case until the very wee hours. It was a very grueling
experience from the point of our attorneys.
MS. FEIGIN: Having three of them on one case was for the government a lot.
MR. KOPP: Yes. Having three attorneys was a lot. Usually our basic pattern was one staff
attorney and one supervisor. In light of the fact that this was a case that took a lot
of resources, we had two attorneys and one supervisor. As I said, the government
eventually prevailed and the Haitians were returned to Haiti. I found the case to
be perhaps one of the most disturbing that I had been involved in over my career.
I found it disturbing for two reasons. First, I thought as a matter of law the
District Court was just dead wrong. The government’s legal position was correct,
that since the Haitians had not entered into the United States, the government
could pick them up at sea and send them back. But secondly, even though I
thought the legal position was correct, I couldn’t help but be very sympathetic to
the people involved and couldn’t help but wonder why the government, with
42 Haitian Refugee Center v. Baker, 953 F.2d 1498 (CA 11, 1992); see also, 950 F.2d 685 (C.A. 11 1991), 949 F.2d
1109 (C.A. 11 1992).
respect to people who were so close to the United States, could not work out some
policy that would be much more successful and humane. Of course, I’m saying
this in 2015, and unfortunately you see that this type of problem was not
something that was confined to that era and to those people. You see it now
happening in the Mediterranean a lot where you have, I just read in the newspaper
the last week or so, people trying to escape from the chaos in Libya being put on
boats and the people in charge of them jump off the boats and escape after they
get paid for having the refugees on board. These boats then sink and you have
hundreds of people killed at sea. The world with respect to refugees is
unfortunately a very unattractive and dangerous place, and actually by that
standard, you look now at what’s going on in the Mediterranean, and what
happened in Haiti was not nearly of that magnitude. The world for refugees has
MS. FEIGIN: Just to make it clear for people reading this, you’re not talking about the people in
the Mediterranean trying to get to the United States.
MR. KOPP: No. They’re trying to get to Italy. That’s a very good clarification.
MS. FEIGIN: We probably have time for one more topic. Let’s discuss tobacco because we
actually started with tobacco early in this oral history and I know more happened.
You told us then that there would be more to come, so let it come now.
MR. KOPP: That’s right. When I was a young attorney, one of my first cases, as I discussed
before, was defending against a suit by Ralph Nader who was seeking to have
smoking banned on airplanes. The case that I handled – unlike a later case that
Bill Kanter handled – was a pretty easy one because at the core of that case was
the notion that banning smoking on the airplane was an emergency. So I won my
case. But many years later, the government began to wake up to the idea that
smoking actually was a very serious and dangerous problem and that something
did have to be done about it. HHS and the FDA in the Clinton administration
began building a very extensive record with respect to the adverse effects of
tobacco. Our involvement began suddenly one summer during the Clinton
administration. Bill Schultz was our Deputy Assistant Attorney General at the
time. He came into my office and asked us to put together a team to start doing
research on tobacco in support of potential litigation.
MS. FEIGIN: We’re talking about litigation not in the appellate court at this point?
MR. KOPP: No. The litigation actually hadn’t yet begun.
MS. FEIGIN: Isn’t that extraordinary that you would be involved before anything is even
brought in the District Court?
MR. KOPP: It was extraordinary. It did happen on occasion in really big litigation which we
knew was coming. For instance, in the Obama administration we knew healthcare
litigation was inevitable and was going to be big and resource-intensive so we
tried to get involved even before the litigation started. That also happened in the
Clinton administration with respect to tobacco. And there was a round of
litigation where the government’s position was that tobacco was a drug and
cigarettes a device and these were the types of things that could be regulated
under the Food and Drug Act.
Eventually that issue went to the Supreme Court, and the government lost
5 to 4 in FDA v. Brown and Williamson.
In 2000, the Court found it very hard
to accept the government’s position that tobacco was a drug and cigarettes a
device within the meaning of the FDA Act. But there was also a second theory
the government had because, as you may recall from those days, the tobacco
industry was very aggressive in terms of pushing the idea that tobacco smoking
was not endangering people’s health. A lot of the information that they were
spreading was eventually shown to be false and inaccurate and people helping the
industry were working with each other in terms of spreading inaccurate
information. So the government was able to work up a suit under the RICO Act –
the Racketeer Influenced and Corrupt Organizations Act – and we were able to
sue on a theory that for decades the tobacco industry had pursued a corrupt
conspiracy to deceive the American public about the health effects of smoking
and the addictiveness of nicotine. This theory prevailed in the District Court
before Judge Kessler, and the industry, of course, then took an appeal to the D.C.
Circuit. I assigned the defense of the appeal to a team that was headed by
Mark Stern, Alisa Klein, and several other attorneys, and it was just a wonderful
team. The team was totally unfazed by the fact that a very large number of the
people above them in the Department, the type of people that normally on
sensitive cases one would be consulting with a lot, had to recuse themselves.
MS. FEIGIN: Why?
MR. KOPP: It turns out that the tobacco industry over the years had been hiring a good
number of the best law firms to represent them, and there was this very big
43 Food and Drug administration v. Brown & Williamson, 529 U.S. 120 (2000).
collection of outstanding attorneys who when they joined the Department had a
background where they had been in the top law firms. When these attorneys
came into the government and there was litigation brought against the tobacco
companies, they had to recuse themselves. So Mark Stern and his team had a
very small number of people above him who were not recused in the case.
Ironically it turned out that I ended up having to be recused as well.
MS. FEIGIN: Why was that?
MR. KOPP: That was because my wife and I had a very tiny ownership in the stock of a
company which decided it wanted to intervene in the litigation in the District
Court. I think, actually, it was on the plaintiff side, as opposed to the tobacco
companies’ side, but I’m not sure about that. So I recused myself. It was a very
small amount of stock, and there’s a procedure in the Department where you can
get a waiver when you have essentially a de minimis interest. I could have gotten
a waiver so I could participate, but by that time, it was apparent to me that Mark
and his team were doing so well in terms of managing the litigation that there
wasn’t a point to my seeking a waiver, so I just let them go without my being
involved and they did an absolutely amazing job.
In 2009, they achieved what was a historic decision in the D.C. Circuit
where the Court held that the tobacco companies were involved in a racketeering
enterprise and that they should be enjoined from making false or deceptive
statements and should issue corrective statements. That case was U.S. v. Philip
44 and it’s a case that has had an enormous impact on American
society. The funny thing is that even though I was recused from that case, I view
44 United States v. Philip Morris USA, 566 F.3d 1095 (D.C. Cir. 2009).
that decision as one of my greatest accomplishments as Director of the Appellate
Staff because in that litigation we had on the other side from the government
some of the best and highest-paid lawyers in the country, and the litigation was
able to show off to the legal world just how capable were people on the Appellate
Staff in handling litigation. Again, notwithstanding my recusal, I think I took
more pride in this decision which I had nothing to do with (laughter) than most of
the litigation that I was involved in over the years. It certainly was one of the
most important things that the office did for many, many reasons.
MS. FEIGIN: It’s nice to end on a high note, and I want to thank you for a fascinating trip
through some amazingly important litigation.