Elbert Lin

Hunton Andrews Kurth LLP

$ $$$

East Byrd Street 901-951
Richmond 23219 VA US

The former Solicitor General of West Virginia, Elbert Lin co-leads the firm’s Issues and Appeals practice. He has been on the front lines of many precedent-setting cases in appellate courts across the country, including in a US Supreme Court victory that George Will called “the court’s most severe rebuke of a president” since the Truman administration.

The “legal whiz” (E&E News 2017) brings to clients a well-honed ability to identify the most persuasive issues for appeal and a practiced understanding of how best to frame complex legal questions in appellate courts.

With experience in the private sector and multiple branches of government, Elbert’s practice has spanned a wide range of issues, including major questions of constitutional and administrative law at the federal and state levels. On behalf of more than two dozen states, he won a stay from the US Supreme Court of the EPA’s Clean Power Plan.

Described by the New York Times as an “unprecedented” order, the stay was the first time the Supreme Court had ever put a regulation on hold before review by a federal appeals court. In that same case, Elbert argued before the en banc DC Circuit in an historic proceeding that one commenter compared to “the NBA All-Star Game” (E&E News 2016).

At the state level, Elbert recently led the effort that persuaded the West Virginia Supreme Court of Appeals to overturn an injunction of the state’s right-to-work law.

In 2013, Elbert was appointed the Solicitor General of West Virginia. During his four-and-a-half year tenure, Elbert served as a member of the Attorney General’s senior management team, oversaw all civil and criminal appeals, and argued nearly two dozen cases in federal and state appellate courts.

He authored more than twenty-five briefs in the US Supreme Court and more than forty-five formal Opinions of the Attorney General.

Earlier in his career, Elbert was a partner in the appellate and communications litigation groups of a national law firm and served as a trial attorney in the Federal Programs Branch of the US Department of Justice’s Civil Division, where he received a Special Service Award.

He has also been a law clerk at all three levels of the federal judiciary: for Justice Clarence Thomas on the US Supreme Court; for Judge William H. Pryor Jr. on the US Court of Appeals for the Eleventh Circuit; and for Senior Judge Robert E. Keeton on the US District Court for the District of Massachusetts.

Elbert speaks regularly on a wide variety of topics, including constitutional law, administrative law, environmental law, state and federal relations, the US Supreme Court, and appellate practice.

He has testified before Congress, and has spoken at the national conventions of the American Bar Association, the Association of Corporate Counsel, the National Asian Pacific American Bar Association, the Federalist Society, Americans for Prosperity, and the American Legislative Exchange Council.

Elbert is admitted to practice in the following federal courts: the Supreme Court of the United States; the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Eleventh, D.C., and Federal Circuits; the District of Massachusetts; and the Northern and Southern Districts of West Virginia.

Experience:

  • Robinson v. United States, No. 16-1532 (U.S.) (lead counsel for 5 states as amici curiae supporting petitioner in case concerning whether police may frisk an individual based solely on suspicion that a weapon is present)
  • Christie v. National Collegiate Athletic Association, 137 S. Ct. 2327 (2017) (lead counsel for 5 states as amici curiae successfully obtaining grant of certiorari, over opposition by the United States, in constitutional challenge to a federal statute concerning sports gambling)
  • Ross v. Blake, 136 S. Ct. 1850 (2016) (lead counsel for 22 states as amici curiae supporting petitioner’s successful position in case involving exhaustion requirement under the Prison Litigation Reform Act)
  • US Army Corps of Engineers v. Hawkes, 136 S. Ct. 1807 (2016) (lead counsel for 23 states as amici curiae supporting respondent’s successful position in case concerning the appealability of a determination by the US Army Corps that certain waters or lands are subject to federal jurisdiction)
  • Franchise Tax Board of California v. Hyatt, 136 S. Ct. 1277 (2016) (lead counsel for 44 states as amici curiae supporting petitioner in case where Supreme Court divided evenly on question of a state’s sovereign immunity in courts of other states)
  • West Virginia v. EPA, 136 S. Ct. 1000 (2016) (successfully obtained, as lead counsel on behalf of 29 states and state agencies, first ever stay from US Supreme Court of an agency rule while the merits of the rule are being reviewed in lower courts)
  • Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (lead counsel for 10 states as amici curiae supporting petitioner’s successful First Amendment challenge to town ordinance regulating signs based on content)
  • North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015) (lead counsel for 23 states as amici curiae supporting petitioner in case concerning state action immunity under the federal antitrust statutes)
  • Plumley v. Austin, 135 S. Ct. 828 (2015) (Thomas, J., dissenting from denial of certiorari) (sought certiorari on behalf of State of West Virginia from a grant of habeas corpus on grounds of judicial vindictiveness)
  • Abramski v. United States, 134 S. Ct. 2259 (2014) (lead counsel for 26 states and Guam as amici curiae supporting petitioner in case involving the legality straw-purchaser firearm sales)
  • St. Mary’s Medical Center, Inc. v. Steel of West Virginia, Inc., __ S.E.2d __, 2018 WL 665465 (W. Va. Jan. 31, 2018) (successfully obtained, in case of first impression, reversal of order compelling West Virginia Attorney General to disclose antitrust investigation documents under state Freedom of Information Act)
  • Morrisey v. West Virginia AFL-CIO, 804 S.E.2d 883 (W. Va. 2017) (successfully obtained, on behalf of State of West Virginia and West Virginia Attorney General, reversal of preliminary injunction issued against state’s right-to-work law)
  • Lund v. Rowan County, NC, 863 F.3d 268 (4th Cir. 2017) (en banc) (argued on behalf of 13 states as amici curiae on question of first impression concerning constitutionality of exclusively lawmaker-led legislative prayer at a county commission meeting)
  • Samples v. Ballard, 860 F.3d 266 (4th Cir. 2017) (successfully persuaded Fourth Circuit, in case of first impression, that federal district court need not review de novo unexhausted habeas corpus claims not previously raised in the case)
  • State v. Butler, 799 S.E.2d 718 (W. Va. 2017) (argued successfully on behalf of West Virginia Attorney General as amicus curiae in case concerning the applicability of the state’s hate-crimes law)
  • State v. Peterson, 799 S.E.2d 98 (W. Va. 2017) (argued successfully on behalf of the State of West Virginia that prosecutor’s failure to disclose alleged statement by witness was not a Brady violation)
  • Gray v. Ballard, 848 F.3d 318 (4th Cir. 2017) (argued successfully for the denial of habeas corpus in a case establishing the standard for due diligence in the Fourth Circuit under 28 U.S.C. § 2254(d)(1)(D))
  • West Virginia v. EPA, No. 16-1363 (D.C. Cir.) (en banc) (argued on September 27, 2016, on behalf of 27 states in a case challenging EPA’s Clean Power Plan)
  • Lund v. Rowan County, NC, 837 F.3d 407 (4th Cir. 2016) (successfully represented 13 states as amici curiae on question of first impression concerning constitutionality of exclusively lawmaker-led legislative prayer at a county commission meeting)
  • State v. Louk, 786 S.E.2d 219 (W. Va. 2016) (argued on behalf of the State of West Virginia that individual whose unborn child died due to drug use could be charged with criminal child neglect)
  • State ex rel. Biafore v. Tomblin, 782 S.E.2d 223 (W. Va. 2016) (argued successfully on behalf of the State of West Virginia as amicus curiae that vacancy for a resigning state senator, who had changed political parties mid-term, must be filled by member of the resigning senator’s party at the time of the resignation)
  • In re Clean Water Rule: Definition of “Waters of the United States,” 140 F. Supp. 3d 1340 (J.P.M.L. 2015) (argued successfully on behalf of 18 states against effort by the federal government to centralize pretrial proceedings for multiple challenges in federal district courts to rule defining the Clean Water Act’s jurisdictional term “Waters of the United States”)
  • In re EPA, 803 F.3d 804 (6th Cir. 2015) (obtained nationwide stay on behalf of 18 states against EPA and US Army Corps’ “Waters of the United States” Rule)
  • West Virginia Dept. of Health & Human Resources v. E.H., 778 S.E.2d 643 (W. Va. 2015) (argued on behalf of state agency that state trial court order mandating pay raises at state-run psychiatric hospitals violated constitutional separation of powers)
  • Watkins v. Rubenstein, 802 F.3d 637 (4th Cir. 2015) (argued successfully for reversal of a grant of habeas corpus in a case involving a claimed Brady violation)
  • Christian v. Ballard, 792 F.3d 427 (4th Cir. 2015) (argued successfully for denial of habeas corpus in a case involving alleged ineffective assistance of counsel)
  • In re Murray Energy Corp., 788 F.3d 330 (D.C. Cir. 2015) (argued on behalf of 12 states as petitioner-intervenors that EPA should be prohibited from finalizing proposed Clean Power Plan rule)
  • State v. Gum, 764 S.E.2d 794 (W. Va. 2014) (argued successfully on behalf of the State of West Virginia that the constitutional right to a jury trial does not apply to hearings for an incompetent defendant to establish defenses, because such hearings are civil and not criminal)
  • Calvary SPV v. Morrisey, 752 S.E.2d 356 (W. Va. 2013) (argued successfully that the West Virginia Attorney General has authority to issue investigative subpoenas under the West Virginia Consumer Credit and Protection Act)
  • State v. Lambert, 750 S.E.2d 657 (W. Va. 2013) (argued successfully that statement of non-testifying child to mother was not hearsay and therefore did not violate the Confrontation Clause)
  • Conference Group, LLC v. FCC, 720 F.3d 957 (D.C. Cir. 2013) (successfully defended FCC order against challenge alleging failure to provide for notice and comment)
  • Dow AgroSciences LLC v. National Marine Fisheries Service, 707 F.3d 462 (4th Cir. 2013) (successfully challenged as arbitrary and capricious a “biological opinion” issued by the National Marine Fisheries Service on the effects of certain pesticides)
  • Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) (represented the Ohio Secretary of State against a constitutional challenge to elimination of certain in-person early voting opportunities)
  • Litman v. Cellco Partnership, 655 F.3d 225 (3d Cir. 2011) (successfully defended arbitration clause on ground that New Jersey law forbidding class arbitration waivers was preempted by Federal Arbitration Act)
  • Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) (successfully challenged FCC’s first attempt at a “net neutrality” order)
  • Globalstar, Inc. v. FCC, 564 F.3d 476 (D.C. Cir. 2009) (successfully defended FCC order reassigning block of electromagnetic spectrum against challenge alleging order was arbitrary and capricious
  •  Williams v. Johanns, 498 F. Supp. 2d 113 (D.D.C. 2007) (obtained order sanctioning opposing counsel for failure to respond to discovery)
  • National Family Planning and Reproductive Health Ass’n v. Gonzales, 391 F. Supp. 2d 200 (D.D.C. 2005) (successfully opposed preliminary injunction claiming that federal statute governing Title X funding was unconstitutionally vague, a violation of the Spending Clause, and an unconstitutional delegation to an executive agency)
  • Lepp v. Gonzales, 2005 WL 1867723 (N.D. Cal. Aug. 2, 2005) (argued successfully against a Religious Freedom Restoration Act claim concerning federal government’s seizure of marijuana plants)

EDUCATION:

  • JD, Yale Law School, Managing Editor, The Yale Law Journal, 2003
  • BA, Yale University, magna cum laude, Distinction in the Major, Tau Beta Pi, 1999

BAR ADMISSIONS:

  • District of Columbia
  • Massachusetts
  • Virginia
  • West Virginia

COURT ADMISSIONS:

  • Supreme Court of the United States
  • US Court of Appeals, First Circuit
  • US Court of Appeals, Second Circuit
  • US Court of Appeals, Third Circuit
  • US Court of Appeals, Fourth Circuit
  • US Court of Appeals, Fifth Circuit
  • US Court of Appeals, Sixth Circuit
  • US Court of Appeals, Ninth Circuit
  • US Court of Appeals, Eleventh Circuit
  • US Court of Appeals, District of Columbia Circuit
  • US Court of Appeals, Federal Circuit
  • US District Court, District of Massachusetts
  • US District Court, Southern District of West Virginia
  • US District Court, Northern District of West Virginia

CLERKSHIPS:

  • Supreme Court of the United States
  • US Court of Appeals, Eleventh Circuit
  • US District Court, District of Massachusetts

GOVERNMENT EXPERIENCE:

  • Solicitor General, West Virginia, 2013-2017
  • Trial Attorney, Federal Programs Branch, Civil Division, US Department of Justice, 2004-2006

Memberships:

  • Member, John Marshall Inn of Court
  • Member, The Federalist Society, Federalism and Separation of Powers Practice Group Executive Committee, 2013–present, Telecommunications and Electronic Media Practice Group Executive Committee, 2011–2013
  • Member, APABA DC (Asian Pacific American Bar Association, Washington DC)
  • Member, Yale College Alumni Schools Committee

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East Byrd Street 901-951
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