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Adam Unikowsky’s undefeated 5-0 record at the U.S. Supreme Court is on the line again this term, and he’s prepared to make it six.
“I have no idea what’s going to happen with this case, but there’s only one way to find out,” Unikowsky, a partner with Jenner & Block, told Bloomberg Law.
Oral arguments for Artis v. District of Columbia are set for Nov. 1. The case will be the fifth Unikowsky, who is only 36, has argued before the court and his sixth Supreme Court case granted certiorari in the last four terms.
He has four unanimous Supreme Court wins, in Honeycutt v. United States, Howell v. Howell, Kokesh v. SEC, and V.L. v. E.L.—the latter without oral arguments. Only Puerto Rico v. Sanchez Vallewasn’t unanimous—the court ruled ruled 6-2 in his client’s favor.
Unikowsky has also won cases on the skinny side of circuit splits. He was arguing against five previous circuit decisions in Honeycutt, and three in Kokesh, with just one circuit court decision in his favor for each.
“It’s the Supreme Court; it’s pretty fun to litigate a case there,” Unikowsky said. “And if you win a case, you feel responsible—in an extremely small way—for moving the law in a particular direction that you agree with.”
The current case he’s arguing explores how a statute of limitations extension should be calculated under federal law. Title 28, Section 1367 of the U.S. Code allows a federal court, in certain circumstances, to dismiss a case if it determines it would be more appropriate for the state to hear it. After that dismissal, the same federal law extends the limitations period for the claims.
The federal law states that any qualifying claim, and those that are voluntarily dismissed “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
“I wouldn’t say it’s the most high profile case of the year,” Unikowsky said. “But it’s high-profile to me.”
Unikowsky is arguing that the period is calculated by suspending the limitations period of the state law claim while it’s pending review, plus 30 days after it’s dismissed. The District of Columbia is arguing to affirm the decision of the District of Columbia Court of Appeals that the statute of limitations period runs while the state-law claim is in federal court, and the extension is limited to the 30 days after dismissal.
“In this case, I really felt like the lower court got it wrong, and that’s why I was really enthusiastic about it,” he said.
Unikowsky has found all of his Supreme Court clients after an appeals court issues a decision, and he works the cases pro bono. He shepherds his cases through the entire Supreme Court process, starting with the petition for review.
Unikowsky clerked for Judge Douglas H. Ginsburg on the U.S. Court of Appeals for the D.C. Circuit, and later clerked for Justice Antonin Scalia. That experience at the Supreme Court likely helped him develop his keen eye for cases that may interest the court, he said.
There’s more to it than common indicators like circuit splits, he said.
“It helps to have a circuit split—a lot—but they don’t hear every circuit split that comes up,” Unikowsky said. “I think you just have to get a general sense of the types of pure issues of law that they like to resolve.”
Unikowsky uses his knowledge of what the court does and doesn’t like in his case selection and, ultimately, in the way he presents those issues to the court. He said he is careful in each of his petitions for certiorari to treat each case individually.
“Every case is different and every case you have to frame a cert petition in a certain way that exemplifies the things about that case that make it an attractive case for the court,” Unikowsky said.
In a case where there isn’t a perfect split but the lower court made the wrong decision, Unikowsky said he’d emphasize that there is a serious error. On the other hand, in a case where it’s unclear who’s right and there’s a split “you’d put that front and center.”
Unikowsky has written cert. petitions for both types of cases.
Ian Heath Gershengorn, former acting solicitor general and current chair of Jenner & Block’s Appellate and Supreme Court Practice, told Bloomberg Law that Unikowsky “seems to process on a different speed than the rest of us.”
“Adam has a tremendous gift for being able to take extremely complex legal problems, process them at speeds most of us could only dream about and explain those issues with extraordinary clarity,” Gershengorn said. “And he’s able to do that for the full range of cases we have.”
Unikowsky represents clients at trial in addition to his appellate practice and his pro bono Supreme Court work.
“Adam is plenty busy on billable work, he’s doing what’s ideal from the firm’s perspective which is supplementing a paying practice with a pro bono practice,” Gershengorn said.
Unikowsky’s work at the high court has helped keep Jenner at the forefront of Supreme Court practice and appellate law, Gershengorn said.
Unikowsky’s background in engineering probably helps him dissect complex legal issues, Warren Postman, deputy chief counsel for litigation at the U.S. Chamber Litigation Center told Bloomberg Law. Both graduated from Harvard Law School in 2007.
Before attending law school, Unikowsky studied at the Massachusetts Institute of Technology, where he earned his master’s degree in engineering in 2004.
“Appellate litigation is similar to puzzle solving,” Postman said. “You’ve got a lot of different pieces that you want to fit together—pieces of statutory text, of legislative history, of policy arguments—and it’s not always obvious how you fit them together.”
Unikowsky’s training in engineering helps him to understand all of the different parts, fit them together into an argument that makes sense to the court and makes the court feel like the rule they’re adopting is consistent with what has come before, Postman said.
Postman has worked with Unikowsky most recently as his client. The U.S. Chamber Litigation Center has hired Unikowsky to write briefs “probably half-a-dozen times,” he said.
“He’s the kind of lawyer who, on any particular issue, will know where all the courts of appeals are, so he’s got a deep understanding of where the law is,” Postman said.
Unikowsky would read “basically every court of appeals decision in the country that came out” when they were in school, Postman said.
“Appellate litigation is a particular area of law that appeals to certain people, and it’s something I think appealed to him since law school and he’s been working at it with a lot of dedication for more than a decade,” Postman said.
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