Dan Ruttenberg, GMUSL JD ’97 argued Hillman v. Marietta on April 12, 2013. Congratulations to Ruttenberg!

The George Mason Alumni magazine has the story:

The thing is, Dan Ruttenberg, JD ’97, never expected to be a litigator, much less appear before the U.S. Supreme Court. But there he was in April, face-to-face with nine of the “greatest legal minds in the country, and you’re arguing with them,” Ruttenberg said. “Justice Scalia went right after me.”

It still seems surreal as he recounts his encounter with the “Supremes” from his Tysons Corner office of SmolenPlevy, a firm founded by Mason graduates Jason Smolen, JD ’77, and Alan Plevy, JD ’77. Ruttenberg, who is believed to be the first Mason alumnus to argue before the Supreme Court, is a certified public accountant with a master of law in taxation. He is a transactional attorney whose practice areas include estate planning, tax law, and succession planning for businesses; appealing a case to the highest court in the land was never on his bucket list.

…

The case,Hillman v. Maretta, looked to straighten out a seemingly clerical error: Warren Hillman neglected to change his beneficiary on his life insurance policy after divorcing his wife in 1998; he remarried in 2002 and died in 2008, leaving his widow out of the $124,588 in benefits. Cue the lawyers.

“I thought this was a small, slam-dunk case,” Buttenberg said. “The statute was right on point.”

Yes, well. “And it didn’t just go to the Supreme Court. First, it was removed to federal court on Thanksgiving weekend four years ago. I remember that vividly because I had to learn to file in federal court over Thanksgiving. My head was spinning. I was able to get it remanded back to the Fairfax County Circuit Court, but then they tried to move it to Albemarle County, and now I had to learn the law of venue. I successfully defended that attempt and finally got to court. I won in trial court, but then it was appealed and went up to the Virginia Supreme Court. That in and of itself was a big deal for me.”

It’s also where he lost the case. “But I wouldn’t give up because I’m competitive, so I appealed it to the U.S. Supreme Court. Everyone said, ‘You’ll never get the U.S. Supreme Court to hear it,’ but of course that just motivated me more. Lo and behold, they took my case.”

The Supreme Court accepted the case, despite overwhelming odds—of about 10,000 petitions, fewer than 80 are granted each year—based on a reading of Ruttenberg’s extensive brief. He credits his studies at Mason for polishing his writing skills.

“I was accounting and finance, a numbers guy, and I hated writing,” said Ruttenberg. “Mason absolutely taught me to be a much better writer.” Mason also taught him, he says, “how to think, how to have confidence in myself…. I started trusting my judgment a lot more. I thought Mason was a great law school.”

Postscript: The court found against Ruttenberg, but he still cherishes the adventure. “Part of me doesn’t realize how rare what I accomplished is,” Ruttenberg said.

Alas, the Court ruled against Ruttenberg’s client, petition William Hillman, 9-0.

More in Northern Virginia Magazine.

Art Lien had this sketch of Ruttenberg with the SCOTUSBlog roundup.

 

Taking the lectern to argue against preemption, Hillman’s lawyer Daniel Ruttenberg argued that “the federal interest ends once the insurance proceeds are paid out,” and that the states should be left to determine the effect of a divorce on the ultimate destination of the funds.  He had barely begun when Justice Scalia asked him about a specific provision of FEGLIA, 5 U.S.C. § 8705(e), which provides that the order of precedence may be superseded by the terms of a “decree of divorce, annulment, or legal separation,” but only if that decree “is received, before the date of the covered employee’s death, by the employing agency.” Justice Scalia inquired why, if Congress was solely concerned with the convenience of federal administrators, it would require them “to have to look to see if there’s a divorce decree on the books, blah, blah, blah, blah, blah.”  According to Justice Scalia, “[t]hat obviously shows that Congress . . . not only had a concern about efficiency of payment, but also had a concern about who gets the payment.”  The Justice went so far as to state that the presence of the divorce decree provision “blows away” Ruttenberg’s explanation of the statutory purpose.

 

Justice Ginsburg echoed Justice Scalia’s skepticism, arguing that under Ruttenberg’s interpretation, “this specific exception, rightly cabined, is generalized so that in all cases, the second wife will prevail over the first.”  Justice Ginsburg also raised the Court’s prior holdings in Wissner v. Wissner(1950) and Ridgway v. Ridgway (1981), both of which held that the orders of precedence in other federal insurance statutes preempted state laws that resemble Virginia’s.  Later in the argument, she offered additional justifications for the order of precedence, including not only honoring the insured’s choice of a beneficiary, but also the need to have a uniform regime for federal employees who may move from state to state.

 

As the back and forth continued, Ruttenberg stated the rule he wanted the Court to adopt: “[A] bright-line rule that said State laws that interfere with the administration of a plan are preempted, but after that, after the money has been paid out, laws that affect the benefits are not preempted.”  Justice Kennedy interjected: “In other words, they’re preempted, but the whole purpose of preemption can be thwarted.” Justice Sotomayor eventually joined the fray as well, focusing on FEGLIA’s explicit limitations on divorce decrees and asking why, if Congress had intended for the states to have plenary control of funds after they were paid, it didn’t just say so.

 

Ruttenberg’s only friend on the bench was Justice Alito, who helpfully put the shoe on the other foot for him by asking why, if Congress was truly concerned with effectuating the will of beneficiaries, it forced those beneficiaries to channel their intentions into a designation form as opposed to permitting them to simply execute a will under state law.  But the respite was short, as Justices Ginsburg and Scalia resumed their grilling until Ruttenberg sat down.