Kevin Marshall provides clients analysis, counseling, and advocacy involving novel or complex legal issues. This includes appeals at all levels, appellate petitions, dispositive and other critical trial court motions (such as class certification and Daubert), and internal analyses of litigation and compliance risks.
In recent years, Kevin's litigation has included contract interpretation disputes in Delaware Chancery and federal circuit court; chapter 11 bankruptcy motions and appeals (district court and directly to circuit court, interlocutory, and final); defense under federal and state False Claims Act (FCA); and defense of foreign defendants under the Anti-Terrorism Act. His litigation against or involving the federal government has included takings and related claims in the Court of Federal Claims on behalf of investment funds; lawsuits under the Freedom of Information Act (FOIA) on behalf of both plaintiffs and an intervener-defendant seeking to protect its information; and white collar charges of smuggling by a foreign defendant, failure to register as a foreign agent, and wiretapping. Kevin was part of the team representing the National Federation of Independent Business in challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA) before the Eleventh Circuit and U.S. Supreme Court.
Before joining Jones Day, Kevin was a deputy assistant attorney general in the U.S. Department of Justice's Office of Legal Counsel. He provided authoritative written legal opinions and other legal advice, throughout the executive branch, on the Constitution, treaties, international law including the law of war, and federal statutes and regulations. He also testified three times before Congress.
The following represents experience prior to joining Jones Day.
Conseco Financial Corp.
Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003).
Challenged arbitration awards on the ground that imposition of class-action arbitration violated the Federal Arbitration Act. The Supreme Court vacated the state court judgment upholding the awards, and remanded.
Lee, Dr. Wen Ho
Lee v. Department of Justice, 287 F. Supp. 2d 15 (D.D.C. 2003), aff’d 413 F.3d 53 (D.C. Cir. 2005).
Successfully pursued strategy to obtain reporters’ source information in Privacy Act suit over leaks to the media by U.S. officials. Dr. Lee, a former nuclear physicist at Los Alamos National Laboratory, eventually obtained a landmark settlement after the reporters’ appeal failed.
Trulock v. Lee, 2003 WL 21267827 (4th Cir.).
Successfully defended Dr. Lee in all stages of a federal-court defamation suit arising out of the U.S. Government’s criminal investigation of him.
Defended company in the arbitration of a $40 million commercial breach-of-contract claim that ended in complete victory for the client.
Shasha v. Gonzales, 227 Fed. Appx. 436, 2007 WL 930404 (6th Cir.).
Argued appeal in successful defense of removal order of Board of Immigration Appeals.
The Office of Legal Counsel has made public the following opinions authored and signed by Kevin, which are available at http://www.justice.gov/olc/opinions.htm under the appropriate year:
When a Prior Conviction Qualifies as a "Misdemeanor Crime of Domestic Violence" (May 17, 2007) (opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms, and Explosives).
Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences (Apr. 25, 2007) (opinion for the General Counsel, Environmental Protection Agency).
Legality of Alternative Organ Donation Practices Under 42 U.S.C. § 274e (Mar. 28, 2007) (opinion for the General Counsel, Department of Health and Human Services).
Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees Paid to a Contractor by Attendees at Agency-Sponsored Conferences (Nov. 22, 2006) (opinion for the General Counsel, Department of Commerce).
Application of the Government Corporation Control Act and the Miscellaneous Receipts Act to the Canadian Softwood Lumber Settlement Agreement (Aug. 22, 2006) (opinion for the General Counsel, U.S. Trade Representative).
Proposed Amendments to Military Commission Order No. 1 (Aug. 12, 2005) (opinion for the General Counsel, Department of Defense).
Authority Under the Defense Base Closure and Realignment Act to Close or Realign National Guard Installations Without the Consent of State Governors (Aug. 10, 2005) (opinion for the Chairman, Defense Base Closure and Realignment Commission).
Assignment of Certain Functions Related to Military Appointments (July 28, 2005) (opinion for the General Counsel, Office of Management and Budget).
Religious Objections to the Postal Service Oath of Office (Feb. 2, 2005) (opinion for the Vice President and General Counsel, U.S. Postal Service).
Status of the Director of Central Intelligence under the National Security Intelligence Reform Act of 2004 (Jan. 12, 2005) (opinion for the Deputy Counsel to the President).
Application of Record-Destruction Requirements to Information Received from the National Instant Criminal Background Check System (Jan. 11, 2005) (opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms, and Explosives).
Whether the Second Amendment Secures an Individual Right (Aug. 24, 2004) (opinion for the Attorney General).
Fraudulent Inducement Actions And The FCA’s Statute Of Limitations, The Government Contractor, Vol. 62, No. 19
U.S. Supreme Court: Plaintiffs May Not Piggyback Successive Class Actions Beyond Statute of Limitations
Progress, Return, and the Constitution in Constitutionalism, Executive Power, and the Spirit of Moderation (SUNY)
Supreme Court Relies on Attorney Notes in Considering a Claim of Racial Profiling in Juror Selection
- May 13, 2020
Fraudulent-Inducement Actions and the FCA's Statute of Limitations, 62 The Government Contractor 133
- January 22, 2018
Supreme Court Update, Jones Day CLE Academy
- February 11, 2017
"Justice Thomas, Liberty, and Equality," Yale Symposium on Justice Clarence Thomas' 25 Years on the Supreme Court
- September 16, 2016
Religious Liberty Before the Supreme Court: Trinity Lutheran Church of Columbia v. Pauley, Youtube
- November 5, 2015
Second Amendment Case Law Development and Challenges Ahead, Georgetown Symposium on the Right to Bear Arms
- September 9, 2013
Taking Aim at Violent Crime: What does the Second Amendment Tell Us?, Federal Bar Association
- August 1, 2013
Federalism and the Accountability & Competence of Government, presentation at the Governor's Federalism Summit
- July 19, 2012
The Supreme Court on the Affordable Care Act: What's Next, Cornell University School of Industrial and Labor Relations
- June 7, 2012
Preparing for the Supreme Court Decision on Health Reform, American Benefits Council
- March 20, 2012
Obamacare in the Supreme Court, National Press Club
- May 19, 2011
Finding Our Way In the Tort Arena, Jones Day MCLE University
- October 22, 2010
Political Philosophy, Law, and Executive Authority, panelist, Political Philosophy and the Constitution: A Conference in Honor of Professor Murray P. Dry
- September 16, 2010
Executive Roundtable Series: Targeting Consumer Products: Developments in Regulation and Litigation
- May 20, 2010
Advanced Business Litigation Institute: Twombly, Iqbal, and the New Heightened Pleading Standard
- October 9, 2009
U.S. Supreme Court Review & Preview, Jones Day San Francisco Office
- October 10, 2008
U.S. Supreme Court Review & Preview, Jones Day San Francisco Office
- June 30, 2008
"SCOTUSCast" on decision by Supreme Court in District of Columbia v. Heller, The Federalist Society for Law and Public Policy Studies
- March 24, 2008
"SCOTUSCast" on oral argument before Supreme Court in District of Columbia v. Heller, The Federalist Society for Law and Public Policy Studies
- The University of Chicago (J.D. with high honors 1998; Order of the Coif; Articles Editor, Law Review); Middlebury College (B.A. summa cum laude 1994 with highest departmental honors in political science; Phi Beta Kappa)
- District of Columbia; Indiana; U.S. Supreme Court; U.S. Courts of Appeals for the Second, Third, Fourth, Sixth, Ninth, Eleventh, and Federal Circuits; and U.S. District Courts for the District of Columbia and the Southern District of Indiana
- Served with the U.S. Department of Justice, Office of Legal Counsel in the following positions: Deputy Assistant Attorney General (2005-2007) and Counsel to the Assistant Attorney General and Acting Deputy Assistant Attorney General (2004-2005)
- Hon. Clarence Thomas, U.S. Supreme Court (1999 Term) and Hon. J. Michael Luttig, U.S. Court of Appeals, Fourth Circuit (1998 Term)