Overview
Michael B. Kimberly is co-head of the Firm’s Supreme Court and Appellate practice and Government and Regulatory Litigation practice. He has given more than 30 appellate arguments, including eight before the US Supreme Court. In addition to his appellate work, Michael frequently litigates challenges to federal administrative actions under the Administrative Procedure Act and to state laws and regulations under various provisions of the US Constitution. He has briefed and argued hundreds of cases covering a wide range of subject matters, with particular experience in the areas of the Commerce Clause, preemption, the Social Security and Medicare Acts, ERISA, the First Amendment, copyright, the Bankruptcy Code, and the antitrust laws. In addition to handling appeals and administrative and constitutional challenges, Michael works frequently with his colleagues in trial courts to shape litigation strategy and present the most compelling dispositive motions.
Michael is a visiting lecturer in law at Yale Law School, where he co-directs the Yale Law School Supreme Court clinic.
Michael is widely recognized as an accomplished Supreme Court and appellate litigator. Rating Michael in 2021, Chambers USA described him as “a brilliant writer” and an “incredibly strategic thinker.” The Legal 500 has rated him every year since 2017, noting that he is “wildly intelligent” and “highly recommended by peers and clients alike.” Michael has been described in the National Law Journal as a “veteran US Supreme Court and appellate lawyer” and in the Washington Post as a “seasoned Supreme Court practitioner.” According to Reuters, he is among “the top handful of lawyers in America” who “dominate” the docket of the US Supreme Court.
Michael’s notable wins include unanimous victories in Smith v. Berryhill, 139 S. Ct. 1765 (2019), concerning the scope of judicial review of final agency action under Section 405(g); and Shapiro v. McManus, 136 S. Ct. 450 (2015), concerning the availability of review before three-judge district courts. Michael represented the petitioner in France v. United States, a white-collar criminal case in which his briefing persuaded the solicitor general to confess error. In the lower courts, Michael has won a number of recent victories in a range of constitutional cases and complex commercial disputes.
While in law school, Michael served as editor of The Yale Law Journal and executive editor of the Yale Law and Policy Review. Following law school, Michael clerked for Judge Michael Daly Hawkins on the US Court of Appeals for the Ninth Circuit.
Results
- In the U.S. District Court for the District of Puerto Rico, succeeded in invalidating, on federal preemption grounds, a Puerto Rico law regulating the rates that Medicare Advantage plans must pay providers (MMAPA v. Emanuelli-Hernandez)
- In the Southern District of New York, won a rare grant of habeas corpus relief and immediate release from custody for a former pharmaceutical company executive (Jordan v. Lamana)
- In the New York Appellate Division, First Department, obtained a reversal in a case involving an eight-figure promissory note and a related express release clause (Hawk Mountain LLC v. RAM Capital LLC)
- In the Supreme Court, secured a 9-0 victory in an administrative law case establishing that agency dismissals on procedural grounds are “final decisions” for purposes of judicial review (Smith v. Berryhill)*
- In the Supreme Court, obtained a unanimous victory in a partisan gerrymandering case, ensuring that plaintiffs receive review before a three-judge district court (Shapiro v. McManus)*
- In the Supreme Court, represented the petitioner in a white-collar criminal case and successfully persuaded the solicitor general to confess error (France v. United States)*
- In the Eighth Circuit, obtained a categorical victory in an important Freedom of Information Act (FOIA) case concerning the privacy rights of family farmers and ranchers (American Farm Bureau Federation, et al. v. EPA)*
- In the Fourth Circuit, won a unanimous victory in a False Claims Act case relating to the 2009 financial crisis (United States ex rel. Szymoniak v. American Home Mortgage Servicing, Inc.)*
- In the Maryland Court of Special Appeals, obtained a victory for the defendant in a case seeking to compel arbitration (Ghadry v. Penson Financial Services, Inc.)*
*Matter handled prior to joining McDermott.
Recognitions
- The Legal 500 US, “Next Generation” Supreme Court Practitioner, 2017-2022
- Chambers USA, Nationwide Appellate Law, 2021 and 2022
- Benchmark Litigation, 40 & Under Hot List, 2017-2021
- National Law Journal, Energy & Environmental Trailblazer, 2017-2021
- American Lawyer, Litigator of the Week, 2016
- National Law Journal, Rising Star, 2017
- Law360, Appellate Rising Star, 2016
Community
- The NYU Institute of Judicial Administration, Board of Advisors
- Georgetown Supreme Court Institute, member
- Yale Law School, visiting lecturer in law
Credentials
Education
Yale Law School, JD, 2008
University of Pennsylvania, MA, 2005
Princeton University, BA, summa cum laude, 2003
Admissions
Maryland
District of Columbia
Courts / Agencies
US Supreme Court
US Court of Appeals for the First 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 Eighth Circuit
US Court of Appeals for the Ninth Circuit
US Court of Appeals for the Tenth Circuit
US Court of Appeals for the Eleventh Circuit
US Court of Appeals for the District of Columbia Circuit
US Court of Appeals for the Federal Circuit
US District Court for the District of Columbia
US District Court for the District of Maryland
