J. Scott Ballenger

Of Counsel

    J. Scott Ballenger

    Of Counsel

    Profile

    Scott Ballenger is an experienced appellate lawyer who was a partner and associate in Latham’s Supreme Court & Appellate Practice for 20 years before departing to become director of the Appellate Litigation Clinic at the University of Virginia School of Law in 2019. Mr. Ballenger continues to consult on Latham matters, and is currently a member of the Latham team advising the firm’s longtime client Union Pacific before the US Supreme Court in LeDure v. Union Pacific Railroad Co., which he will argue before the Court on March, 28, 2022. Mr. Ballenger has represented Union Pacific for nearly two decades in a wide range of appellate issues including federal preemption, civil forfeiture, and a series of groundbreaking cases about the rights granted by the transcontinental railroad Acts in the 1860s and 1870s.

    Mr. Ballenger has argued two previous cases in the US Supreme Court and dozens in the courts of appeals and trial courts across the country. He represented the Abigail Alliance for Better Access to Developmental Drugs in the case, Abigail Alliance v. von Eschenbach, that inspired “right to try” legislation across the country and in Congress. He has worked on a wide variety of other significant constitutional matters, including for the University of Michigan Law School in Grutter v. Bollinger, the University of Texas in Fisher v. University of Texas, and Hastings Law School in Christian Legal Society v. Martinez. 

    After graduating from law school, Mr. Ballenger served as a law clerk for Judge J. Clifford Wallace at the US Court of Appeals for the Ninth Circuit and for Justice Antonin Scalia at the US Supreme Court. He also served as Senior Counsel to the Assistant Attorney General in the antitrust division of the US Department of Justice.

    Experience

    A selection of Mr. Ballenger’s most recent engagements include: 

    • Representation of the NCAA in several pending cases attacking the sanctions against Penn State arising out of the University’s handling of criminal activity by former assistant football coach Jerry Sandusky. Mr. Ballenger recently briefed and argued a successful motion to dismiss the antitrust case filed by Pennsylvania Governor Tom Corbett. The federal court’s opinion called his motion an “all out blitz.” 
    • In May 2013, Mr. Ballenger represented Union Pacific Railroad Company before the Eighth Circuit in a case against the Customs Service challenging fines (at one point exceeding US$500 million) imposed for drugs found on trains inbound from Mexico and operated by Mexican railroads. The case raises issues about the constitutionality of penalties against truly innocent parties that the Supreme Court has recognized, but reserved, for more than 200 years. 
    • Currently representing Guitar Center on appeal in the Ninth Circuit in the Musical Instruments antitrust litigation.

    White-Collar Criminal/Regulatory Matters

    Mr. Ballenger was the principal author of the briefing for Arthur Andersen in its successful appeal of its criminal conviction to the Supreme Court. He also briefed and argued the appeal for one of the defendants in what the Second Circuit has called “the largest criminal tax case in American history” – the prosecutions arising out of KPMG’s tax practice in the late 1990s. See United States v. Stein, 541 F.3d 130 (2nd Cir. 2008).

    He wrote the appellate and Supreme Court briefs for Joseph Nacchio, the former CEO of Qwest Communications, in his insider trading case. The Wall Street Journal Online called Nacchio’s opening brief “The Great American Appellate Brief.”

    Business and Environmental Issues

    Mr. Ballenger has represented clients in many high-profile business and environmental cases. For example: 

    • In 2010 he briefed and argued two important cases in the Supreme Court for the railroad industry, Kawasaki Kisen Kaisha v. Regal-Beloit Corp., and Union Pacific R. Co. v. Brotherhood of Locomotive Engineers and Trainmen. 
    • He was the principal author of the certiorari and merits briefing before the Supreme Court in two important environmental cases in 2009: Entergy et al. v. Riverkeeper, and BNSF et al. v. United States. Professor Richard Lazarus, a prominent expert on environmental law, wrote that neither case “would likely have been granted without [Latham’s] skill” and that industry had long “tried and failed to persuade the Court to grant review” of the BNSF issues in particular.

    Intellectual Property

    Mr. Ballenger was a principal author of the certiorari and merits briefing in several landmark recent patent cases in the Supreme Court, including MedImmune v. Genentech, Quanta Computer, Inc. v. LG Electronics, and most recently Prometheus v. Mayo.

    Constitutional Law

    Mr. Ballenger has deep experience in complex and high-profile issues of constitutional law. He was the principal author of the winning briefs for the University of Michigan Law School in Grutter v. Bollinger, 539 U.S. 306 (2003), and for Arthur Andersen in its successful effort to get its Enron-related conviction overturned, Arthur Andersen LLP v. United States, 544 U.S. 696 (2005).

    In a groundbreaking lawsuit against the FDA, Abigail Alliance v. von Eschenbach, 445 F.3d 470 (2006), he convinced a panel of the D.C. Circuit to recognize a new constitutional right of access to experimental drugs for terminally ill patients. Mr. Ballenger defended that ruling at a rare en banc rehearing before the full D.C. Circuit, which reversed over a vigorous dissent. The Food and Drug Law Institute has called Abigail Alliance possibly the most important case in the history of food and drug law.

    He also has written briefs and advised clients in several important First Amendment cases.

    Qualifications

    Bar Qualification

    • District of Columbia

    Education

    • JD, University of Virginia School of Law, 1996
    • BA, University of Virginia, 1993

    Practices

    Recognition

    General Recognition Thumbnail
    November 17, 2014Recognition

    Appellate Practice Named to 2014 “Hot List”

    Latham is recognized for the seventh year for "outstanding achievements before the U.S. Supreme Court, federal circuit courts and state courts of last resort.”

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