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John P. Elwood

John P. Elwood Partner, Appellate

John, a partner in the firm’s Appellate practice group, has argued nine cases before the Supreme Court of the United States, and argued before most federal courts of appeals. He has briefed and argued cases in “a broad cross-section of areas” (Chambers USA, 2013), and has particular experience in the areas of environmental law, the False Claims Act, administrative law, government contracting, and federal criminal law.

John’s work has earned him recognition as one of Washington’s top Supreme Court lawyers (Washingtonian, 2013), as one of “a small group of lawyers” with an “outsized influence at the U.S. Supreme Court” (Reuters, 2014), as one of “the most successful petitioning attorneys” before the Supreme Court between 2012 and 2015 (Villanova Law Review, 2016), and as one of the country’s most innovative lawyers (Financial Times, 2014). Chambers USA reports that “[t]he much-admired John Elwood is praised for his advocacy skills” (2013), and describes John as “phenomenal” (2014), a “brilliant writer” (2015), and “a much-loved and widely respected lawyer who is quick on his feet” (2010).

Before joining the firm, John served in senior-level positions in the U.S. Department of Justice. Beginning as an Assistant to the Solicitor General, and continuing with the firm, he has briefed more than 20 merits cases before the Supreme Court of the United States, and has briefed approximately 135 cases at the certiorari stage. As the senior Deputy in the Office of Legal Counsel, he advised the White House and federal agencies on a range of constitutional, statutory, and regulatory issues.

Experience Highlights

  • (8th Cir.) – In civil asset forfeiture appeal, successfully petitioned for rehearing en banc, prepared supplemental merits briefs, and persuaded en banc Eighth Circuit to overrule contrary Eighth Circuit precedent and reverse adverse district court decision
  • (2d Cir.) —  Won reversal of $35 million antitrust judgment, successfully arguing that client’s alleged tortious conduct in connection with settlement of patent infringement litigation had not harmed competition
  • (U.S.) — Successfully argued that the Wartime Suspension of Limitations Act does not toll the statute of limitations in civil False Claims Act cases; persuaded Supreme Court to grant review on issue despite the absence of a circuit split and after the United States, in a Court-invited amicus brief, argued that certiorari should be denied
  • (U.S.) — In closely watched case involving alleged threats made on Facebook, successfully argued that federal criminal threats statute required proof that the defendant had culpable mental state, invalidating negligence standard employed by most federal courts of appeals 
  • (U.S.) — Rosemond v. United States, 572 U.S. ___ (2014). Successfully argued that aiding and abetting liability requires proof defendant had advance notice of alleged confederate’s plans
  • (U.S.) — Nevada Commission on Ethics v. Carrigan, 564 U.S. ___ (2011). Successfully argued that conflict of interest rules governing state officials do not infringe First Amendment speech rights
  • (D.C. Cir.) —  Successfully argued that internal investigation documents generated under a corporate compliance program were protected by attorney-client privilege, winning mandamus of district court decision ordering disclosure; when district court on remand found waiver of attorney-client privilege and again ordered disclosure, successfully argued that corporation did not waive privilege because witness reviewed documents before deposition or through references in pleadings, winning mandamus a second time
  • (5th Cir.) — Successfully argued that the federal government does not “provide” statutorily mandated telecom-company universal-service contributions within the meaning of the False Claims Act, winning reversal of district court’s denial of motion to dismiss
  • (Fed. Cir.) – Won vacatur of Armed Services Board of Contract Appeals’ decision rejecting government contractor’s claims of breach of implied duty of good faith and fair dealing and constructive change
  • (D.C. Cir.) — Successfully argued that environmental group and municipality lacked standing to challenge the Federal Energy Regulatory Commission certification of a natural gas pipeline 
  • (3d Cir.) – Successfully argued for the dismissal of Clean Air Act enforcement action brought by EPA and several states seeking to require the former owners of a coal-fired power plant to pay for the installation of billion-dollar pollution controls; the court denied EPA and states’ petitions for rehearing en banc
  • (Fed.Cir.) — Successfully argued on behalf of a government contractor for (1) dismissal of False Claims Act and Special Plea in Fraud claims, and against imposition of common-law fraud liability, based on employees’ unauthorized receipt of kickbacks, and (2) for an increase in the contractor’s base fee; the court denied the Justice Department’s petition for rehearing en banc

Cases in the Supreme Court of the United States

  • (U.S.) — Henderson v. United States. Persuaded the Supreme Court to grant review in a case involving restrictions the on the transfer of firearms by persons convicted of criminal offense; co-authored brief that won unanimous ruling that court-ordered transfer of firearms did not constituted possession prohibited by statute
  • (U.S.) — Borough of Duryea v. Guarnieri, 564 U.S. ___ (2011). Author of a brief that successfully argued that a government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the First Amendment’s Petition Clause, unless the employee’s petition relates to a matter of public concern

Cases in the Supreme Court of the United States while an Assistant to the Solicitor General

  • (U.S.) — Castle Rock v. Gonzales, 545 U.S. 748 (2005). Successfully argued that the holder of a restraining order lacks a procedural due process right to enforce the order
  • (U.S.) — Yarborough v. Alvarado, 541 U.S. 652 (2004). Successfully argued that, on habeas review, courts need not consider a suspect’s age and previous law-enforcement history when determining his entitlement to Miranda warnings
  • (U.S.) — Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739 (2004). Argued that a pension fund had complied with the Employment Retirement Income Security Act (ERISA) when it temporarily disqualified certain pension holders from receiving benefits
  • (U.S.) — National Park Hospitality Assn. v. Dept. of the Interior, 538 U.S. 803 (2003). Successfully argued that a government contracting case brought under the Contract Disputes Act was not ripe for judicial resolution
  • (U.S.) — Whitman v. Department of Transportation, 547 U.S. 512 (2006). Principal author of brief arguing that the Civil Service Reform Act did not permit suit for certain employment grievances
  • (U.S.) — Raytheon v. Hernandez, 540 U.S. 44 (2003). Principal author of amicus brief arguing that the Americans with Disabilities Act permits employers to take adverse action because of misconduct related to drug or alcohol addiction
  • (U.S.) — Chavez v. Martinez, 538 U.S. 760 (2003). Principal author of amicus brief arguing that a suspect’s Fifth Amendment right against self-incrimination is not violated unless his coerced statements are used against him in a criminal case
  • (U.S.) — Ewing v. California, 538 U.S. 11 (2003). Principal author of amicus brief defending the constitutionality of California’s “Three Strikes” sentencing law

Cases Argued in the Federal Courts of Appeals — Second,Third, Fourth, Fifth, Seventh, Eighth, Ninth, Eleventh, D.C. and Federal Circuits

  • (4th Cir.) – Won vacatur of district court’s decision rejecting pro bono client’s post-conviction claim of ineffective assistance of counsel and remand for hearing on merits of claim
  • (9th Cir.) — Won vacatur of district court judgment holding foreign corporation had been properly served through domestic subsidiary
  • (11th Cir.) — In a question of first impression, successfully argued that a foundry that had settled its liability with EPA was not subject to a private party’s cost recovery action under § 107 of CERCLA
  • (9th Cir.) — United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc). Successfully argued before the en banc court, as a government attorney, that omission of an element of the offense from the jury instructions did not warrant overturning the conviction

Federal District Court Litigation

  • (W.D. Wis.) — In a patent infringement jury trial, co-author of a successful motion for judgment notwithstanding the verdict resulting in vacatur of a jury’s $18 million damage award and ruling that patent-in-suit was invalid
  • (W.D. Wis.); (7th Cir.) — Member of a litigation team currently representing a Chinese corporation in connection with a U.S. Department of Justice investigation and prosecution into the theft of trade secrets involving green energy technology
  • (M.D. La.) — Co-counsel representing an elected state official charged with fraud
  • (C.D. Cal.) — Co-counsel representing a defense attorney charged with criminal contempt arising out of his conduct during a federal criminal trial

Other Noteworthy Litigation

  • (D.D.C.) — In re Search of Rayburn House Office Building No. 2113, 434 F. Supp. 2d 3 (D.D.C. 2006). Principal author of briefs successfully defending the search of the Capitol Hill office of then-United States Representative William Jefferson against a motion to suppress evidence under the Constitution’s Speech or Debate Clause 

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    John's Practices

    • Yale Law School, J.D., 1993 (Senior Editor, Yale Law Journal)
    • King’s College, M.A. with distinction, first in class, 1990
    • Princeton University, A.B. summa cum laude, 1989 (Phi Beta Kappa)
    • Admitted to practice: Georgia; District of Columbia; Supreme Court of the United States; United States Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh, Federal and District of Columbia Circuits; U.S. District Court for the District of Columbia
        • Office of Legal Counsel, U.S. Department of Justice, Washington D.C., Deputy Assistant Attorney General, 2005–2009
        • Office of the Solicitor General, U.S. Department of Justice, Washington, D.C., Assistant to the Solicitor General, 2002–2005
        • Office of the Assistant Attorney General, Criminal Division, U.S. Department of Justice, Counselor to the Assistant Attorney General; represented the Department as an ex officio member of the United States Sentencing Commission, and as a member of the Advisory Committee on Federal Rules of Criminal Procedure, 2001–2002
        • Appellate Section, Criminal Division, U.S. Department of Justice, Attorney, 1994–1996; Special Assistant U.S. Attorney, U.S. Attorney’s Office for the Eastern District of Virginia, 1995
        • Law clerk to Associate Justice Anthony M. Kennedy, Supreme Court of the United States, 1996–1997
        • Law clerk to Judge J. Daniel Mahoney, U.S. Court of Appeals for the Second Circuit, 1993–1994
        • Testified before Congress four times on constitutional and statutory issues
        • Taught course entitled “Constitutional Law and the Supreme Court” at the George Washington University School of Law, Washington, D.C., 2001
          • Law360,Appellate MVP, 2015
          • AmLaw Litigation Daily, Litigator of the Week, June 4, 2015 
          • Work recognized in Financial Times' feature, Most Innovative North American Law Firms, 2015
          • Chambers USA, Appellate Law (Nationwide), 2011–2019
          • Legal 500 U.S., Dispute Resolution: Appellate (Supreme Court), 2010−2018
          • The Best Lawyers in America© (Woodward/White, Inc.), Appellate Practice, 2013–2019
          • Work recognized in Law360 feature, “Top Gov’t Contracts Cases of 2017: Mid-Year Report”, July 2017
          • Financial Times, North American Innovative Lawyers, 2014
          • Washingtonian magazine, Washington’s Top Lawyers–Supreme Court, 2013–2014
          • Selected to the Washington, D.C. Super Lawyers list, Super Lawyers (Thomson Reuters), 2012–2019
          • Euromoney’s Benchmark Litigation, "Litigation Star": National and "Local Litigation Star": District of Columbia, 2012−2018
          • Euromoney’s Benchmark Appellate, District of Columbia Litigation Star, 2012 and 2013
          • Attorney General’s Award for Distinguished Service, 2005
          • Attorney General’s Award for Exceptional Service, 2002
          • Member: ABA Standing Committee for Amicus Curiae Briefs
          • Adviser: University of Virginia School of Law Supreme Court Litigation Clinic
          • Fellow: American Academy of Appellate Lawyers; Litigation Counsel of America 
          • Edward Bennett Williams Inn of Court; Edward Coke Appellate Inn of Court