Brian Boynton


Boynton, Brian

Brian Boynton is an experienced civil litigator in the firm's Government and Regulatory Litigation Group. His practice focuses on complex government, regulatory and commercial litigation, including challenges to federal agency action under the Administrative Procedure Act (APA), litigation under a range of federal regulatory regimes, and constitutional and preemption challenges. 

From 2016 to early 2017, Mr. Boynton served as a Counselor to Attorney General Loretta Lynch. In that role, he was responsible for advising the Attorney General with respect to significant civil litigation involving the US Department of Justice and helping to coordinate the department's handling of that litigation. From 2014 to 2016, Mr. Boynton served as a Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel—the office charged with providing authoritative legal advice to the President and Executive Branch, typically on difficult and important constitutional and statutory questions. 

Prior to joining the Department of Justice, Mr. Boynton practiced at the firm for 12 years (as a partner since 2009). He has substantial experience at all stages of litigation—discovery, dispositive motions, trial and appeal—and has handled a wide range of complex government, regulatory and commercial litigation.

Mr. Boynton has extensive experience with respect to challenges under the APA. He has litigated APA challenges to regulations and administrative decisions by numerous federal agencies, including the Patent and Trademark Office, the Environmental Protection Agency, the Department of Housing and Urban Development, the Drug Enforcement Administration, the Food and Drug Administration, and the Department of Education. He has represented parties challenging agency actions as well as parties intervening in litigation to help the government defend favorable agency actions.

In addition, Mr. Boynton represents clients in complex regulatory litigation and commercial disputes. Since his return to the firm, Mr. Boynton has handled a number of False Claims Act matters, building on both his prior work at the firm and his experience at the Department of Justice.  In addition to False Claims Act matters, he has litigated high-profile matters under the antitrust laws, the Fair Housing Act, the Lanham Act, the Electronic Communications Privacy Act, the Wiretap Act, and the Foreign Intelligence Surveillance Act. He also has litigated patent, fraud and breach of contract cases.

Mr. Boynton also has significant experience litigating constitutional and preemption challenges. He represents public universities in First Amendment matters, and he has defended multiple free speech challenges to federal and state laws requiring producers of agricultural commodities to pay assessments that fund promotion of the commodity. He also has experience bringing and defending against dormant commerce clause, separation of powers and preemption challenges.

Government Experience

Counselor to the Attorney General

From 2016 until early 2017, Mr. Boynton served as a Counselor to Attorney General Loretta Lynch at the US Department of Justice. He was responsible for advising the Attorney General with respect to significant matters falling within his portfolio and helping to coordinate the department's handling of those matters. His portfolio included the Civil Division, the Office of the Solicitor General, the Office of Legal Counsel, the Antitrust Division, residential mortgage-backed securities matters, the Executive Office for Immigration Review, and matters under consideration by the Committee on Foreign Investment in the United States. 

In this role, Mr. Boynton helped to coordinate the litigation of the most significant matters handled by the Civil Division. These matters included high-profile constitutional, statutory and Administrative Procedure Act challenges to government programs, significant commercial litigation, important appellate matters and affirmative litigation commenced by the Civil Division. 

Deputy Assistant Attorney General – Office of Legal Counsel

From 2014 to 2016, Mr. Boynton served as a Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel (OLC), which provides authoritative legal advice to the President, the Department of Justice and other Executive Branch agencies, typically with respect to difficult and important legal issues, constitutional questions and legal disputes between different Executive Branch agencies.

During his time at OLC, Mr. Boynton provided advice on a wide range of complex constitutional, statutory and administrative law questions. He drafted and assisted in the preparation of a number of formal opinions and provided informal advice on a host of issues. He also oversaw OLC's review and analysis of the constitutionality of pending and enacted legislation. 

Representative Matters

Challenges under the Administrative Procedure Act (APA) 

  • Successfully represented an association of property and casualty insurers in an APA challenge to a rulemaking by the Department of Housing and Urban Development that applied disparate impact analysis under the Fair Housing Act to homeowners insurers.
  • Successfully represented an association of ethanol producers in litigation brought by other industries challenging the Environmental Protection Agency's decision to permit the sale of gasoline with 15% ethanol. 
  • Successfully litigated multiple APA challenges to decisions by the Patent and Trademark Office (PTO) improperly calculating the length of patent term adjustments. 
  • Represented a prescription drug wholesaler in an APA challenge to a Drug Enforcement Administration decision.
  • Represented a patent holder in a successful APA challenge to a PTO decision relating to payments of patent maintenance fees.

Complex Commercial and Regulatory Litigation

  • Handled multiple False Claims Act matters, including investigations and litigation, in a range of industries.
  • Represented an investment bank in a putative class action under the Fair Housing Act challenging the bank's purchases of residential mortgages in the secondary market.
  • Defended a cellular equipment manufacturer in antitrust case brought by a company alleging that its technology had been excluded from industry standards.
  • Successfully defended putative class actions under the Electronic Communications Privacy Act, the Wiretap Act and the Foreign Intelligence Surveillance Act against a telecommunications company alleged to have cooperated with asserted National Security Agency surveillance.
  • Successfully appealed an adverse judgment in a Lanham Act challenge to a competitor's product label subject to regulation by the Food and Drug Administration.
  • Represented a patent licensee in the successful defense of a challenge to the validity of the patent based on the “public use” bar. 

Constitutional and Preemption Litigation

  • Represent public universities with respect to First Amendment matters, including litigation arising from denials of outside speaker requests.
  • Helped obtain dismissal of dormant commerce clause and preemption challenges to a California law prohibiting the sale of eggs in the state unless they were produced according to specified food safety and animal welfare standards. 
  • Successfully defended the constitutionality of a provision of the FISA Amendments Act of 2008 that granted immunity to telecommunications carriers.
  • Represented a California government entity in the successful defense of a First Amendment challenge to a state law requiring producers of California table grapes to pay assessments that fund (among other things) promotion of California table grapes.
  • Successfully represented the cotton industry in First Amendment challenges to the Cotton Research and Promotion Act. 

Publications & News


April 4, 2018

Important New Patent Term Adjustment Decision Allowing Post-RCE B Delay

A recent decision calls into question the US Patent and Trademark Office regulation providing that B delay stops accruing as soon as a Request for Continued Examination is filed.

February 5, 2018

Justice Department Issues Memo Limiting Use of Agency Guidance in Affirmative Civil Enforcement Suits

On January 25, Associate Attorney General Rachel Brand issued a memorandum to all components of the Department of Justice with civil litigating authority limiting the use of agency guidance documents in affirmative civil enforcement cases.

October 27, 2017

WilmerHale Ranks No. 1 on Global Investigations Review's List of Top Investigations Practices

WilmerHale has climbed to the top of Global Investigations Review's list of the world's 30 leading investigations and compliance practices.

June 21, 2017

Administrative Procedure Act Litigation: The Changing Regulatory Landscape, the Role of Industry, and Emerging Issues

As the Trump Administration concludes its fifth month, industry is facing a changing regulatory landscape that offers both opportunities and challenges. In this period of transition, litigation under the Administrative Procedure Act has played, and will continue to play, a more important role than ever in shaping the burdens facing regulated industries.

April 17, 2017

Brian Boynton, Counselor to Obama Administration Attorney General, Joins WilmerHale

WilmerHale is pleased to announce that Brian Boynton has returned to the firm as a partner following his service in the US Department of Justice. Boynton will be a member of the firm's Government and Regulatory Litigation Group and will be based in Washington DC.

January 23, 2013

Recent Developments Relating to Patent Term Adjustments

January 29, 2010

PTO Issues Guidelines on New Patent Term Adjustment Calculations

January 8, 2010

Federal Circuit Affirms Decision Granting Patentees Additional Patent Term

The Court affirmed the decision of the D.C. District Court granting summary judgment in favor of patentees challenging the U.S. Patent and Trademark Office's (PTO) calculation of patent term adjustment under 35 U.S.C. § 154(b).

January 1, 2009

WilmerHale Names New Partners and Counsel for 2009

We are pleased to announce the elevation of our new partners and counsel.

April 10, 2008

California Table Grape Commission Prevails in 12-Year-Long Lawsuit

Speaking Engagements

February 1-2, 2018

NACUA 2018 Winter CLE Workshop: Free Speech and Campus Unrest

New Orleans, Louisiana


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JD, Stanford University Law School, 2000, Order of the Coif

AB, summa cum laude, Dartmouth College, 1997

Bar Admissions

District of Columbia



The Hon. Vaughn R. Walker, US District Court for the Northern District of California, 2000 - 2001

The Hon. Douglas H. Ginsburg, US Court of Appeals for the District of Columbia Circuit, 2001 - 2002

Government Experience

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