Dan Himmelfarb

• FastShip, LLC v. Lockheed Martin Corp., 2022 WL 396099 (3d Cir. 2022) (briefed for appellee Lockheed Martin): The Third Circuit held that an action against Lockheed Martin for breach of contract and misappropriation of trade secrets was time-barred as a matter of law.
• Mexichem Fluor, Inc. v. EPA, 760 F. App’x 6 (D.C. Cir. 2019) (briefed and argued for petitioner Arkema): The DC Circuit rejected intervenors’ jurisdictional objection, reaffirmed its holding in the 2017 Mexichem case that EPA lacks authority under Title VI of the Clean Air Act to ban substances that are not replacing ozone-depleting substances, and vacated a second EPA rule that sought to do so.
• Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017) (briefed and argued for petitioner Arkema): The DC Circuit held that EPA lacks authority under Title VI of the Clean Air Act to ban substances that are not replacing ozone-depleting substances. The case was featured in Law360’s “Biggest Environmental Rulings of 2017.”
• Collier v. CSX Transp., Inc., 673 F. App’x 192 (3d Cir. 2016) (briefed for appellee CSX): The Third Circuit enforced a railroad employee’s release of claims and rejected the employee’s contention that the release was void under Section 5 of the Federal Employers’ Liability Act.
• Lockheed Martin Corp. v. United States, 833 F.3d 225 (D.C. Cir. 2016) (briefed and argued for appellee Lockheed Martin): The DC Circuit held that it is not a prohibited “double recovery” for a contractor to recover under CERCLA and then credit back the government’s share of cleanup costs after having passed the costs along to the contractor’s customers as part of the price of goods and services.
• Fla. Dept. of Transp. v. Schwefringhaus, 188 So. 3d 840 (Fla. 2016) (briefed and argued for appellee CSX): Deciding issues certified to be of great public importance by an intermediate appellate court, the Florida Supreme Court unanimously held that sovereign immunity does not excuse the Florida Department of Transportation from complying with an indemnity provision in a contract with CSX and that the Department’s liability under the indemnity provision is not capped by a Florida statute limiting state agencies’ liability for tort claims.
• Rotech Healthcare Inc. v. United States, No. 15-5025 (Fed. Cir. 2016) (briefed for appellee Rotech): After briefing, the United States withdrew its appeal of a Court of Federal Claims decision holding that the Small Business Act’s “nonmanufacturer rule,” which requires small-business wholesalers and retailers to supply the products of small-business manufacturers, applies to a government contract for the rental of home healthcare equipment.
• Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016) (argued for appellee Lockheed Martin): In the first appellate decision to address the issue after the Supreme Court’s decision in Daimler AG v. Bauman, the Second Circuit held that Connecticut law does not subject a company to the general jurisdiction of Connecticut courts based solely on the company’s registration to do business in the state.
• United States v. Modanlo, No. 14-4044 (4th Cir. 2016) (briefed and argued for appellant Modanlo): After briefing and oral argument of an appeal challenging a conviction for violations of the Iran trade embargo, President Obama commuted Modanlo’s sentence and the appeal was dismissed.
• CSX Transp., Inc. v. Peirce, No. 13-2235 (4th Cir. 2014) (briefed and argued for appellee CSX): After briefing and oral argument, appellants, two lawyers and a doctor, withdrew their appeal of a jury verdict in favor of CSX finding that the lawyers and doctor violated the federal RICO statute and committed common-law fraud by manufacturing and filing fraudulent asbestos claims against CSX.
• New Era Group, Inc. v. EPA, No. 14-1054 (D.C. Cir. 2014) (briefed for intervenor Arkema): Taking the unusual step of summarily denying the petition for review, without merits briefing or oral argument, the DC Circuit held that EPA permissibly denied a petition for reconsideration of an agency rule that asserted claims that could have been raised earlier.
• Arkema Inc. v. EPA, No. 13-3292 (3d Cir. 2014) (briefed for petitioner Arkema): After Arkema filed its opening brief challenging EPA’s listing of two chemicals for testing for possible effects on the endocrine system, EPA confessed error and filed, and the Third Circuit granted, a motion for voluntary vacatur of the list insofar as it included those chemicals.
• Ray Haluch Gravel Co. v. Central Pension Fund, 571 U.S. 177 (2014) (briefed and argued for petitioners Ray Haluch Gravel Co. et al.): The US Supreme Court unanimously held that a decision leaving unresolved a request for contractual attorney’s fees is subject to immediate appeal.
• Honeywell Int'l, Inc. v. EPA, 705 F.3d 470 (D.C. Cir. 2013) (briefed and argued for intervenor Arkema): The DC Circuit rejected competitors' challenges to Arkema's transfers of allowances for the production of ozone-depleting refrigerants. The case was featured in The National Law Journal's 2013 "Appellate Hot List."  
• Johnson v. Arkema Inc., 685 F.3d 452 (5th Cir. 2012) (briefed and argued for appellee Arkema): In this toxic-tort case, the Fifth Circuit affirmed the exclusion of the plaintiff’s causation experts and affirmed the grant of summary judgment to Arkema with respect to the plaintiff’s alleged chronic injuries.
• CSX Transp., Inc. v. Gilkison, 406 F. App'x 723 (4th Cir. 2010) (briefed and argued for appellant CSX): The Fourth Circuit reinstated a suit, dismissed by the district court, alleging that lawyers and a doctor violated the federal RICO statute and committed common-law fraud by manufacturing and filing fraudulent asbestos claims against CSX.
• Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145 (D.C. Cir. 2010) (argued for intervenor National Biodiesel Board): The DC Circuit rejected challenges to the EPA’s “RFS2” regulation, which requires that transportation fuel include certain percentages of renewable fuel.
• Arkema Inc. v. EPA, 618 F.3d 1 (D.C. Cir. 2010) (briefed and argued for petitioner Arkema): The DC Circuit vacated, as impermissibly retroactive, an EPA rule allocating allowances for the production of ozone-depleting refrigerants.  The case was featured in The National Law Journal's 2011 "Appellate Hot List."
• Kuzinski v. Schering Corp., 384 F. App’x 17 (2d Cir. 2010) (briefed and argued for appellant Schering): The Second Circuit held that pharmaceutical sales representatives are not exempt from the Fair Labor Standards Act’s overtime-pay requirements, a position that was rejected by the Supreme Court in a later case.
• Lyman v. CSX Transp., Inc., 364 F. App’x 699 (2d Cir. 2010) (briefed and argued for appellee CSX): The Second Circuit held that CSX was correctly granted summary judgment on the plaintiff’s claim of negligence under the Federal Employers’ Liability Act.
• Hensley v. CSX Transp., Inc., 310 S.W.3d 824 (Tenn. Ct. App. 2009) (briefed and argued for appellant CSX): On remand from the US Supreme Court, the Tennessee Court of Appeals held that the trial court’s failure to give an appropriate “fear of cancer” instruction was not harmless error and reversed a $5 million jury verdict.
• Borger v. CSX Transp., Inc., 571 F.3d 559 (6th Cir. 2009) (briefed and argued for appellee CSX): The Sixth Circuit held that CSX was correctly granted summary judgment on the plaintiff’s claim under the Federal Employers’ Liability Act that he had been negligently exposed to hydrochloric-acid fumes.
• CSX Transp., Inc. v. Hensley, 556 U.S. 838 (2009) (per curiam) (briefed for petitioner CSX): Taking the highly unusual step of summarily reversing the decision below, without merits briefing or oral argument, the US Supreme Court held that, when a plaintiff seeks damages for asbestosis-related “fear of cancer” under the Federal Employers’ Liability Act, the defendant is entitled to a jury instruction that the fear must be “genuine and serious.”  The case was featured in The National Law Journal’s 2010 “Appellate Hot List.”

Yale Law School, JD
Senior Editor, Yale Law Journal

Princeton University, AB, magna cum laude

• District of Columbia
• New York

Court

• US Supreme Court
• US Court of Appeals for the Federal Circuit
• US Court of Appeals for the District of Columbia Circuit
• US Court of Appeals for the Second Circuit
• US Court of Appeals for the Third Circuit
• US Court of Appeals for the Fourth Circuit
• US Court of Appeals for the Fifth Circuit
• US Court of Appeals for the Sixth Circuit
• US Court of Appeals for the Seventh Circuit
• US Court of Appeals for the Ninth Circuit
• US District Court for the Southern District of New York