People

Randolph D. Moss

Partner

Chair, Regulatory and Government Affairs Department

Moss, Randolph D.

Randolph D. Moss is chair of the firm's Regulatory and Government Affairs Department and a member of the Litigation/Controversy Department. He is also a member of the firm's Government and Regulatory Litigation, Appellate and Supreme Court Litigation, Defense, National Security and Government Contracts, and Strategic Response Practice Groups, and a member of the Business Trial Group. Mr. Moss joined the firm in 1989 and is a member of the firm's Management Committee.

Mr. Moss originally joined the firm after serving as a law clerk to the US Supreme Court Justice John Paul Stevens. From 1996 to 2001, he served as a senior official in the US Department of Justice, culminating in his appointment by the President, and confirmation by the Senate, as the Assistant Attorney General for the Office of Legal Counsel. Since returning to the firm in 2001, Mr. Moss has focused on complex civil litigation, appellate practice, administrative and constitutional law and national security law. He has been recognized by Washingtonian magazine as one of the top constitutional and appellate lawyers in Washington DC.

As Assistant Attorney General for the Office of Legal Counsel, Mr. Moss was the principal legal adviser in the Executive Branch. He advised the Attorney General, the White House and the Executive departments on the government's most difficult and important legal questions, from the legality of taking regulatory or administrative action in unsettled areas of the law, to the constitutionality of statutes and pending legislation, to critical issues of national security law. Among other important matters, Mr. Moss issued legal opinions on the war powers resolution, whether a sitting President is subject to indictment, and the effects of Senate acquittal in an impeachment trial. He also issued opinions on a broad range of constitutional issues (including the First Amendment, due process, separation of powers and federalism), on important questions of administrative law, and on the meaning of federal laws in areas involving privacy, copyright, ethics, immigration, appropriations, Native American sovereignty, electronic surveillance, national security, the environment, antitrust, immunity from civil suit, civil rights, international trade and criminal proceedings. While at the Office of Legal Counsel, Mr. Moss also testified before Congress on behalf of the Executive Branch on FDA regulation of tobacco, federal preemption of state law, separation of powers and national security, and whether to amend the Constitution to ban flag desecration.

Practice

Mr. Moss's clients include companies in the financial, pharmaceutical, consumer goods, national defense and telecommunications industries, as well as governmental and quasi-governmental entities and industry associations. He routinely advises and represents clients before federal agencies and before state and federal courts, including the US Supreme Court and other appellate tribunals. Over the years, he has represented clients in class actions and other complex civil litigation, constitutional litigation, agency rulemakings and adjudications and judicial challenges to agency actions.

Honors & Awards

  • Listed in the 2010 edition of Benchmark Litigation for his leading appellate, complex commercial litigation and government and regulatory litigation practices. Recognized in the 2012, 2013 and 2014 editions for his leading appellate practice, and in Benchmark Appellate 2012 and 2013 for his work in the District of Columbia.
  • Selected by his peers for inclusion in the 2010, 2011, 2012, 2013, 2014 and 2015 editions of Best Lawyers in America in the area of commercial litigation. Also recognized in the 2012, 2013 and 2015 editions for his work in first amendment and intellectual property litigation.
  • Recognized as a leading litigator in the 2009, 2010, 2011 and 2012 editions of Chambers USA: America's Leading Lawyers in Business
  • Recognized as a Super Lawyer in the 2007, 2008, 2009, 2010, 2011, 2012, 2013 and 2014 editions of Washington DC Super Lawyers
  • Selected by Washingtonian magazine as one of the "Top Lawyers" in Washington DC in 2004, 2009 and 2013 
  • Edmund J. Randolph Award for Outstanding Service, US Department of Justice (2001)

Publications & News

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April 25, 2014

WilmerHale Attorneys Recognized in Annual Washington DC Super Lawyers Listing

The annual edition of the Washington DC Super Lawyers magazine, published by The Washington Post Magazine, released its 2014 listing which includes 37 WilmerHale attorneys.

February 13, 2014

NIST and DHS Release Final Cybersecurity Framework, Roadmap, and Voluntary Program for Cybersecurity Assistance

Yesterday, the National Institute of Standards and Technology (NIST) released the final version of the voluntary federal cybersecurity standards known as the Cybersecurity Framework, along with a “Roadmap” explaining how the government will work with the private sector, other countries, and international organizations to refine and improve the Framework over the next several years.

January 27, 2014

Defense Department and GSA Issue Recommendations for Improving Cybersecurity in Government Contracting

On January 23, the Department of Defense and the General Services Administration published their joint recommendations to the President “on the feasibility, security benefits, and relative merits of incorporating security standards into acquisition planning and contract administration . . . [including] what steps can be taken to harmonize and make consistent existing procurement requirements related to cybersecurity.”

January 7, 2014

False Claims Act: 2013 Year-in-Review

The False Claims Act (FCA) saw another year of increased activity in 2013, with new qui tam suits hitting an all-time high of 753, a rise of more than 100 over 2012. In fiscal year 2013, the federal government brought in $3.8 billion—the fourth year in a row of more than $3 billion in recoveries. As in the past, the healthcare and pharmaceuticals sector accounted for the biggest share, with $2.6 billion recovered. Procurement saw a jump, more than doubling to $890 million. Financial institutions remained a substantial target, and both the government and private plaintiffs were increasingly bringing claims against recipients of grant and loan funds as well as contractors. Activity at the state level increased as well, with many states expanding the reach of their own false claims statutes, and both state attorneys general and private plaintiffs making aggressive use of new theories of liability.

January 7, 2014

WilmerHale’s Strategic Response Group Profiled in The Washington Post

December 2, 2013

Washingtonian Magazine Names 14 WilmerHale Attorneys to "Best Lawyers" List

November 26, 2013

What You Should Know About DOD's Cybersecurity Rule

An article co-authored by Benjamin Powell, Jonathan Cedarbaum, Barry Hurewitz, Randolph Moss and Jason Chipman, published in Law360.

November 21, 2013

Defense Department Publishes Final Rule Implementing Enhanced Information Protection and Cyber Incident Reporting Requirements

October 24, 2013

NIST and DoD Issue Cybersecurity Guidance and Rules

August 30, 2013

NIST Issues Discussion Draft of Preliminary Cybersecurity Framework

The National Institute of Standards and Technology ("NIST") has posted a discussion draft of the preliminary version of the voluntary federal cybersecurity standards NIST was directed to develop under the executive order on critical infrastructure cybersecurity issued by President Obama in February.

Speaking Engagements

Recent Highlights

Mr. Moss's recent experience includes:

  • Representing an ISP in defending the constitutionality of Virginia's anti-spam statute
  • Successfully defending the constitutionality of the McCain-Feingold Act on behalf of its congressional sponsors. The mammoth litigation involved 11 different lawsuits brought by 77 plaintiffs ranging from Senator Mitch McConnell to the NRA to the ACLU.
  • Representing the Government of Canada in defending the decision of a NAFTA panel before an Extraordinary Challenge Committee. This is only the third time in the history of NAFTA that such an extraordinary challenge has been brought.
  • Advising the Office of the Governor of Connecticut regarding proceedings to impeach the Governor.
  • Representing various private and public entities in state and federal court, before the Department of Agriculture, and as an amicus curiae before the US Supreme Court, defending the constitutionality of state and federal programs that collect agricultural assessments, which are then used to fund research and promotion that benefits the industry as a whole
  • Representing a national retailer in seeking to set aside a $4.5 million compensatory and over $33 million punitive damage award entered against the company, including in an appeal to the Court of Appeals for the Eighth Circuit
  • Representing a motion picture studio in an administrative law challenge, seeking to set aside a US Copyright Office decision regarding the distribution of cable and satellite royalty payments
  • Representing an association, as an amicus curiae, before the US Supreme Court in successfully defending the constitutionality of the Copyright Term Extension Act of 1998

Professional Activities

Mr. Moss is a Term Member of the Yale Law School Association Executive Committee and a fellow of the American Bar Foundation. He has frequently written about and testified before Congress on a variety of constitutional and administrative law issues. He authored "Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel" in the Administrative Law Review, and co-authored "The Least Vulnerable Branch: Ensuring the Continuity of the Supreme Court," which recently appeared in the Catholic University Law Review. In recent years, Mr. Moss has addressed issues of federalism, the First Amendment, national security, presidential powers and executive privilege at events sponsored by the Federal Bar Council, the Federalist Society, the Cato Institute, the Brookings Institute, the Copyright Society, the American Constitution Society, the Center for American and International Law, the Campaign Media Center, Democracy 21, Roll Call, the Duke Law School Public Law Conference, the University of Maryland Law School, the American Conference Institute and the DC Bar Section on Litigation.

Practices

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Education

JD, Yale Law School, 1986, Editor, Yale Law Journal

BA, Hamilton College, 1983

Bar Admissions

District of Columbia

New York

Maryland

Clerkships

The Hon. Pierre N. Leval, US District Court for the Southern District of New York, 1986 - 1987

The Hon. John Paul Stevens, US Supreme Court, 1988 - 1989