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  • The U.S. Supreme Court issued six opinions on January 25, 2016.

    An Erroneous Jury Instruction Does Not Change Nature Of A Sufficiency Challenge In Musacchio v. United States, the defendant challenged his conviction under 18 U.S.C. sec. 1030(a)(2)(C) for unauthorized access to a computer because the government had not shown that he intentionally accessed the computer without authorization and exceeded his authorized access, as the jury instruction set forth. However, the statute itself requires only one of these elements to be proven. He also raised a statute of limitations defense under 18 U.S.C. sec. 3282(a), but failed to do so until the case was on appeal. The unanimous Court, in an opinion by Justice Thomas, affirmed the conviction. First, the Court noted that a sufficiency challenge is a limited review that only gauges whether the defendant had a meaningful opportunity to defend himself and that the finding of guilt was beyond a reasonable doubt. An erroneous jury instruction that required the government to prove an additional element does not negatively impact either of those considerations. The Court then held that Musacchio could not raise his statute of limitations argument for the first time on appeal because the language of Section 3282(a) did not make the limitation jurisdictional in nature, and thus he had to raise it before the trial court or else it was waived. A link to the opinion is here.

    Prohibition On Life Without Parole Punishment For Juvenile Convicts Is Retroactive

    Fifty years after Henry Montgomery was sentenced to life in prison without parole when he killed a deputy sheriff as a juvenile, the Supreme Court held in Miller v. Alabama, 567 U.S. --- (2012) that such a sentence violated the Eighth Amendment absent consideration of the juvenile’s special circumstances. Montgomery petitioned for a review of his sentence, but Louisiana’s Supreme Court denied relief. The Court, in an opinion by Justice Kennedy, reversed. First, the majority held that it had jurisdiction to review the Louisiana court’s ruling because the rule in Miller was a matter of constitutional law, and thus binding on state collateral review proceedings. Then, on the merits, the majority held that Miller’s rule on juvenile punishment was retroactive because it was substantive in nature, not procedural, although acknowledging that the consideration of a juvenile’s circumstances did inject a procedural component into the process. Justice Scalia, joined by Justices Thomas and Alito, filed a dissent arguing that it was “astonishing” that the Court would interject itself into a state post-conviction proceeding to undo a conviction that was obtained in conformance with then-existing constitutional law. Justice Thomas filed a separate dissent, arguing that no clause of the Constitution granted a right to Montgomery to seek retroactive review of his conviction. A link to the decision in Montgomery v. Louisiana is here.

    Supreme Court Upholds FERC’s Power To Pay Consumers To Conserve Power Usage

    Through power granted under the Federal Power Act, authorizing FERC to regulate “the sale of electric energy at wholesale in interstate commerce,” FERC issued a rule requiring wholesale electricity market operators who manage the grids to pay the same price to consumers to lower their energy usage as they would pay to a generator to produce the same energy—in effect, offering a higher price for energy conservation—so long as that price gave a net benefit to all consumers. The U.S. Court of Appeals for the District of Columbia struck down that rule as going beyond FERC’s authority under the Act and for being arbitrary and capricious. The Court, 6-2, reversed in an opinion by Justice Kagan. First, the majority held that the rule directly impacted wholesale rates for electricity as permitted under the Act, and did not impermissibly impact retail sales, noting that it was a “fact of economic life” that regulation of the wholesale market would affect retail sales in some way. The majority also found FERC’s rationale for the new rule to be adequately reasoned after the consideration of competing views, sufficient under the Administrative Procedure Act. Justice Scalia, joined by Justice Thomas, dissented, arguing that the Act by its terms did not permit FERC to regulate the demand response of consumers of electricity, as the Act only permitted regulation of sales of electricity to those would resell the power—wholesalers, not consumers. Justice Alito did not participate in the case. A link to the opinion in FERC v. Electric Power Supply Association is here.

    Indian Tribe Not Entitled To Equitable Tolling When It Waited For Class Action To Resolve

    Resolving a circuit split, the Supreme Court held in Menominee Tribe of Wisconsin v. United States that the Tribe was not entitled to equitable tolling of the six-year statute of limitations for its contract claims for the time that a similar case brought by a different Indian tribe was pending in the courts. Both Indian tribes had contracts with the U.S. government to provide aid, and both complained that the government was not meeting its obligations. Shortly after the Supreme Court held in favor of the Indian tribe in Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005) on one such contract, the Tribe in this case brought a similar contract action seeking to recover for nonpayments stretching back to 1995. The district court dismissed claims for those years not within six years of filing, and the Tribe appealed, arguing that the Cherokee case equitably tolled its claims. The unanimous Court, in an opinion by Justice Alito, held that the Tribe had not shown extraordinary circumstances beyond its control that would permit equitable tolling, noting that the Tribe could have brought its claims at any time. A link to the opinion is here.

    Supreme Court Requires State Courts To Adhere To Its Rulings On Federal Law

    In James v. Boise, the Court, in a per curiam opinion, reversed the ruling of the Idaho Supreme Court that interpreted 42 U.S.C. sec. 1988 in a way contrary to the Supreme Court’s interpretation set forth in Hughes v. Rowe, 449 U.S. 5 (1980). In Hughes, the Supreme Court held that Section 1988 permitted an award of attorneys’ fees to a prevailing defendant only when the plaintiff’s action was “frivolous, unreasonable, or without foundation.” Idaho’s Supreme Court declared that it was not bound by Hughes because its limitation was not set forth in the statute itself. The Court stated that it had the sole duty to interpret federal law to prevent the “public mischiefs” that might result from federal law being applied differently among the various states, and thus reversed Idaho’s holding. A link to the opinion is here.

    Supreme Court Again Dismisses A Stockholder Complaint Against ERISA Fiduciaries

    Applying the standard set in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. --- (2014), which requires plaintiffs to plausibly allege an alternative action that an ERISA fiduciary could have taken, consistent with the securities laws, and which a prudent fiduciary would not have viewed as more likely to harm the fund than to help it, in order to state a claim for breach of the fiduciary’s duty of prudence on the basis of insider information, the Court reversed the Ninth Circuit in Amgen Inc. v. Harris, by a per curiam decision, and dismissed a complaint without prejudice because it did not set forth any facts that plausibly alleged such an alternative action. The Ninth Circuit had posited such an alternative action in upholding the complaint, but the Court required that the complaint itself contain such facts and allegations. A link to the opinion is here.

  • Supreme Court Strikes Down Florida’s Death Penalty Scheme

    Overturning prior decisions that upheld Florida’s sentencing procedure for death penalty cases, the U.S. Supreme Court held, 8-1, that the judge’s role under Florida law of finding sufficient facts to warrant the death penalty violated the Sixth Amendment’s requirement that such fact-finding be done only by a jury. Florida argued that its scheme was constitutional because the jury provided an “advisory verdict” that the sentencing judge must give “great weight” to. Justice Sotomayor’s opinion rejected that “hybrid” approach, holding that under Ring v. Arizona, 536 U.S. 584 (2002), any penalty of death had to be solely based on facts found by the jury. Justice Breyer, in a brief concurrence, that he came to the same result through the Eighth Amendment instead of the Sixth. Justice Alito, dissenting, argued that the holding in Ring should not have been extended to this case, where the jury played “critically important role” in the application of the death penalty, and the judge performs merely a “reviewing function.” The decision in Hurst v. Florida is here. The decision in Hurst v. Florida is here.

    Supreme Court Limits Prisoner In Forma Pauperis Litigation

    Perhaps with an eye toward weeding out the thicket of litigation initiated by prisoners, the Supreme Court, in a unanimous decision authored by Justice Ginsburg, held that prisoners litigating in forma pauperis must pay for their cases on a per-case basis. Under the Prison Litigation Reform Act of 1995, prisoners had to pay a certain amount of the initial filing fee to initiate a case, and then were required to make certain monthly payments thereafter. The Act was unclear, however, whether those monthly payments applied on a per-prisoner or per-case basis. Obviously, the former interpretation would permit litigious prisoners to maintain many more cases in the courts. The majority’s brief opinion surveyed the Act’s language and determined that it applied against each action or appeal, thus requiring separate payments for each. The majority also noted that this interpretation coincided with the Act’s goal of reducing frivolous prisoner litigation—noting in particular that the appellant in this case was “frequent litigant.” A link to the decision in Bruce v. Samuels is here.

  • U.S. Supreme Court Bolsters Effectiveness of Arbitration Provisions

    In a 6-3 decision, the U.S. Supreme Court held that an arbitration provision that was to be enforceable only as allowed by state law is enforceable where the Federal Arbitration Act pre-empted that law. DIRECTV, Inc.’s service agreement included a binding arbitration provision that was unenforceable if the “law of your state” so dictated. California’s courts ruled that such provisions were unenforceable, but then the Supreme Court held in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) that the Act pre-empted California’s rule. California’s Court of Appeal that despite the ruling in Concepcion, the provision was still unenforceable because that was what California’s law dictated. Justice Breyer’s opinion for the majority held that this result did not place such contracts “on equal footing with all other contracts,” and thus did not give “due regard . . . to the federal policy favoring arbitration.” Therefore, Concepcion and the Act was the proper reflection of California law, and the provision was therefore upheld. Justice Thomas noted in his short dissent his belief that the Act did not apply to state court proceedings. Justice Ginsburg, joined by Justice Sotomayor, argued that the better reading of the provision was to abide by state law without consideration of federal pre-emption, warning that further expansion of the Act’s purview threatened to degrade the rights of consumers to the benefit of corporations. A link to the opinion in DIRECTV, Inc. v. Imburgia, released on December 14, 2015, is here.

    U.S. Supreme Court Denies Habeas Relief For Stricken Juror

    In White v. Wheeler, White was sentenced to death after a trial in which a juror was stricken for cause after giving equivocal and inconsistent answers about his ability to impose the death penalty. White argued that this infringed upon his constitutional rights, and the U.S. Court of Appeals for the Sixth Circuit agreed. The U.S. Supreme Court, in a unanimous per curiam decision, reversed. The Court emphasized that habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 was highly deferential to the decisions by the state courts, and that such relief is only given where the error is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” The Court noted that the juror was carefully questioned in voir dire, and that it was not “beyond disagreement” that his answers qualified him for a capital panel. A link to the December 14, 2015 opinion is here.

  • Arthur D. Burger, chair of Jackson & Campbell’s professional responsibility practice group, is quoted in the November 30, 2015 edition of the National Law Journal regarding the procedures and practices for informal admonitions in D.C. disciplinary cases. The article involves a complaint against a former in-house counsel at Amtrak. He is identified as being “chairman of Jackson & Campbell’s professional responsibility practice in Washington.” See Complete Article Here

  • The U.S. Supreme Court issued a per curiam opinion on November 9, 2015.

    In a per curiam opinion the U.S. Supreme Court reversed a decision of the U.S. Court of Appeals for the Fifth Circuit and held that whether a police officer’s use of force was excessive under the Fourth Amendment is determined through an objective reasonableness standard that is a “pure question of law” that can be resolved on summary judgment. The Court further held that on the facts in this case, the officer did act reasonably in shooting at the subject of a high-speed chase in an effort to disable the vehicle, but instead killed the suspect. The opinion noted that the suspect had been reported to be drunk, had been driving at a high rate of speed for a prolonged period, had threatened to shoot officers, and was approaching an officer who had set out a spike trap, reasoning that in such circumstances the officer’s decision to shoot was not “beyond debate” nor “squarely governed” by precedent, and thus the officer was entitled to qualified immunity. Justice Scalia’s concurrence argued that since the purpose of the shots was to disable to vehicle, not harm the suspect, cases involving the use of deadly force did not apply. Justice Sotomayor, in a solo dissent, argued that it was “clearly established under the Fourth Amendment” that the officer’s “rogue conduct” was unlawful, and that he should have waited until he was given the go-ahead by a superior officer, and allowed the spike trap a chance to work, before shooting. The opinion in Mullenix v. Luna is here.

  • The head of our Tax Practice Group, Nancy O. Kuhn published the following blog post, NBC Subsidiary WRC-TV, LLC v. DC Office of Tax and Revenue

    The D.C. Court of Appeals affirmed the ruling of the Administrative Law Judge of the Office of Administrative Hearings in finding that the DC Office of Tax and Revenue (“OTR”) reasonably interpreted a statute defining “Qualified High Technology Company” for purposes of preferential sales/use tax treatment. Although OTR’s narrow interpretation of the statutory language was challenged, the Court of Appeals held that “this [i]s a case justifying significant deference to OTR’s reasonable understanding of a statute that it administers.” The court held that OTR’s interpretation was reasonable against the legislative background. Thus, the taxpayer, NBC Subsidiary WRC-TV, is liable for sales and use taxes in the amount of approximately $78,000. For more information please contact Nancy O.Kuhn at

  • The head of our Tax Practice Group, Nancy O. Kuhn published the following blog post, Home IRS issues proposed Treasury Regulations regarding the definition of “Marriage” for purposes of Federal taxes.

    On October 21, 2015, the Internal Revenue Service issued proposed amendments to Income Tax, Estate Tax, and Gift Tax Regulations which include the term “marriage” and which describe the marital status of taxpayers. For purposes of all such Treasury Regulations, the IRS verified that it will recognize all legal marriages under any state law. When terms such as husband and wife are used in the Regulations, those terms are to be interpreted without regard to gender. Marriages of same-sex couples are to be treated the same as marriages of couples of the opposite-sex. The IRS further clarified that civil unions, registered domestic partnerships, or similar relationships recognized under state law are not equivalent to “marriage” and the terms “husband”, “wife”, “spouse” do not include individuals who have entered into such relationships. REG-148998-13; 26 CFR Parts 1, 20, 25, 26, 31, and 301. For more information please contact Nancy O.Kuhn at

  • The head of our Tax Practice Group, Nancy O. Kuhn published the following blog post, Home Mortgage Interest: Unmarried Couple Wins With Double Deduction

    Voss v. Commissioner of Internal Revenue, No. 12-73257 and Sophy v. Commissioner of Internal Revenue, No. 12-73261 (9th Cir. August 7, 2015): In a case of first impression, the Ninth Circuit Court of Appeals reversed the Tax Court and held that the limitations on the home mortgage interest deduction apply to each individual owner, with married couples treated as one owner, rather than for each qualified residence. Bruce Voss and Charles Sophy are co- owners of two properties as joint tenants, and are domestic partners registered with the State of California. Accordingly, they file each their tax return with the “Single” filing status. The Ninth Circuit held that each of them could deduct the full amount of the interest they each paid on their jointly owned properties, even though together the deductions were in excess of the $1 million limit on home acquisition debt and $100,000 on home equity debt applied to married couples. The Court analyzed whether the language in the Internal Revenue Code supported an interpretation that the limits applied per residence or per taxpayer. While the Tax Court concluded the language supported an interpretation of applying the limitations “per residence”, the Ninth Circuit concluded the language supported “per taxpayer” and reversed and remanded the Tax Court opinion. While acknowledging that this creates a marriage penalty, the Court noted that taxpayers in the category of “Married Filing Joint” generally have the benefit of a lower tax rate.

  • The head of our Professional Responsibility practice, Arthur D. Burger, published an article in the ABA/BNA Lawyers’ Manual on Professional Conduct™ entitled "Advance Waivers: Be Specific or Don’t Count on Them" Please read the article here.

  • The head of our Professional Responsibility practice, Arthur D. Burger, was quoted in a National Law Journal article about lawyer-discipline by the D.C Circuit Court of Appeals. Please read the article here.

  • When Fidelity First Home Mortgage Company was found liable by a jury under the doctrine of respondeat superior when one of its loan officers engaged in a fraudulent foreclosure rescue scheme, it sued the loan officer seeking indemnification and contribution. The loan officer claimed that Fidelity’s claims were discharged in his prior no-asset Chapter 7 bankruptcy, and that Fidelity’s negligence in supervising him precluded its claims. The circuit court granted summary judgment to Fidelity, and the Court of Special Appeals, in a unanimous panel opinion by Judge Graeff, affirmed. First, noting that the loan officer had failed to list Fidelity as a creditor in his bankruptcy, the Court held that the circuit court therefore had concurrent jurisdiction to determine whether Fidelity’s debt was discharged. It then held that since the loan officer’s conduct involved fraud, Fidelity’s claim was nondischargeable under the fraud exception even though it was seeking indemnification and contribution, as opposed to claiming that it had been defrauded. Finally, the Court held that there was no finding at trial that Fidelity engaged in “active, independent negligence” that would bar it from seeking indemnification against the loan officer. The opinion in Fox v. Fidelity First Home Mortgage Company, issued on July 1, 2015, is here.

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