Bryan M. Killian

Bryan serves as co-leader of the firm’s Climate Change Task Force and, throughout his career, has had a central role in high-profile litigation over the developing law around climate change. He briefed two of the four lead cases challenging the US Environmental Protection Agency’s initial round of regulations concerning stationary-source greenhouse gas emissions under the Clean Air Act (CAA). He also represented fuel producers challenging the constitutionality of California’s Low Carbon Fuel Standard (LCFS). Bryan represented oil-and-gas companies defending tort suits brought by state and local municipalities alleging that the defendants were responsible for climate change. Bryan also briefs and argues on behalf of the domestic biofuels industry in state and federal cases related to the federal Renewable Fuel Standard.

In addition to claims arising from the alleged impacts of climate change, Bryan defends clients on other environmental litigation and enforcement matters. On behalf of one of the owners of the oil well involved in the Deepwater Horizon disaster, Bryan developed arguments about choice-of-law and arguments about the scope of the Oil Pollution Act and the Clean Water Act. Bryan represented multiple companies in connection with Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) remediation and allocation disputes involving the federal government.

As part of his tax practice, Bryan secured employment tax refunds for several railroads and their employees, in each case persuading the court of appeals to reverse district court rulings for the federal government. One of those wins opened up a circuit split, which the US Supreme Court later resolved in the railroads’ favor. Bryan also represented patent holders seeking income tax refunds concerning their intellectual property, as well as professional employer organizations (PEOs) concerning income tax questions related to their businesses.

In class actions, Bryan briefed and argued motions to compel arbitration, as well as interlocutory appeals, under the Federal Arbitration Act (FAA). Several of those cases involved questions about whether various state-law defenses to arbitration are preempted under the FAA.

Bryan co-leads Morgan Lewis’s American Indian Law practice and participated in a range of cases arising out of fee-to-trust conversions and tribal jurisdiction over non-Indians.

Bryan teaches a law school course on statutory interpretation. Before starting his career as a lawyer, he served as a law clerk to Justice Antonin Scalia of the US Supreme Court and to Judge Paul Niemeyer of the US Court of Appeals for the Fourth Circuit. Bryan was a Bristow Fellow in the US Office of the Solicitor General, where he worked on federal civil and criminal appeals and on the federal government’s cases in the US Supreme Court. He is a member of the Fourth Circuit Judicial Conference.

Major victories Bryan has won for clients include:

• Cooper v. Franklin Templeton (2nd Cir. 2023): Defended the district court’s decision to dismiss a former employee’s claims of discrimination and defamation in a closely watched case arising out of a highly publicized event from early on in the pandemic
• CSX v. United States (11th Cir. 2021): Represented a railroad in an appeal to the Eleventh Circuit after the railroad and its employees paid railroad retirement tax on relocation benefits and a district court held that the taxes were owed under the Railroad Retirement Tax Act; Bryan argued that relocation benefits are not taxable, resulting in a remand for the district court to enter judgment for the company and its employees
• TriNet Group v. United States (11th Cir. 2020): Secured a tax refund for a PEO in the US District Court for the Middle District of Florida and an affirmance from the Eleventh Circuit on whether the PEO was the “employer” entitled to employment tax credits
• Access Living of Chicago v. Uber (7th Cir. 2020): Won an appeal brought by a Chicago resident and a nonprofit association in a case challenging the company’s compliance with the Americans with Disabilities Act; the panel unanimously held the individual plaintiff lacked Article III standing and that the association did not have a cause of action under the federal statute
• Arnold v. HomeAway and Arnold and Seim v. HomeAway (5th Cir. 2018): Argued both cases—which involved the enforceability of an arbitration agreement within terms and conditions that the firm’s client could modify—back-to-back on the same day before the same panel; the panel reversed the Texas district court and held that both plaintiffs needed to arbitrate
• Union Pacific v. United States (8th Cir. 2017): Argued that a federal tax on “money remuneration” does not tax stock—an argument two appellate courts and three district courts had rejected before the US Court of Appeals for the Eighth Circuit unanimously accepted it; the victory opened up a circuit split and in June 2018 the US Supreme Court upheld the Eighth Circuit’s decision in Wisconsin Central v. United States
• In re: Tronox: Avoca Claimants v. Kerr-McGee Corp. (2nd Cir. 2017): Defended the client against toxic-tort claims filed by thousands of Pennsylvania plaintiffs, arguing the claims were derivative of claims that had been part of another company’s bankruptcy; a Second Circuit panel agreed the plaintiffs could not litigate their claims because those claims were barred by an injunction entered as part of a $5 billion settlement in the bankruptcy case
• In re: Lawrence Teachers Association (NY 2017): The Third Judicial Department of the Appellate Division of the New York State Supreme Court reversed the New York State Supreme Court and held that the firm’s client, a school district, did not have to bargain with its teachers union before hiring a private company to run the district’s universal prekindergarten program
• Minnesota Trucking Association v. Stine (D. Minn. 2017): Defended the constitutionality of a Minnesota law that requires blending biodiesel on behalf of multiple trade associations
• Vonage v. Merkin (9th Cir. 2016): Persuaded the Ninth Circuit to reverse a California district court that refused to compel arbitration of a purported class action