PDF

Mr. Markels joined Jackson & Campbell, P.C. in 2010 as an associate in the Firm’s Real Estate and General Litigation and Trial Practice Groups, where he handles a wide variety of civil lawsuits and appeals. Before Jackson & Campbell, James was a litigator in McLean, Virginia, where he represented businesses before state and federal courts in matters involving contracts, trade secrets, employment law, landlord-tenant law, and bankruptcy. He also has experience in litigating insurance coverage and tort matters. James was selected as a Super Lawyer® for Appellate, Civil Litigation, and Real Property Law by Super Lawyers Magazine, published by Thomson Reuters, in 2015, 2016, 2017, and 2018, and was a “Super Lawyer®: Rising Star” in 2014. James also has an AV Preeminent™ rating from Martindale-Hubbell®.

James is an active member of the Fairfax Bar Association (FBA) and a Fairfax, Virginia native. He has organized and moderated several continuing legal education (CLE) courses, served as Chairman for the FBA’s CLE Committee, and received the FBA’s 2013 President’s Award for outstanding service to the bar. Pursuant to his love of appellate practice, he publishes same-day summaries of noteworthy opinions issued by the U.S. Supreme Court, the U.S. Courts of Appeals for the D.C. and Fourth Circuits, and the Virginia Supreme Court for the public, which are available on the Jackson & Campbell blog. He is an editor of the “D.C. Superior Court Civil Practice Manual” and an arbitrator for the D.C. Attorney/Client Arbitration Board.

James received his J.D., cum laude, from George Mason University School of Law, where he was an associate editor of the “Civil Rights Law Journal” and a member of the Moot Court Board. He also served as the school’s Honor Committee Chairman for two years. James received a Bachelor of Science in telecommunications from Ohio University.

  • December 2018
    Burglary Includes Structures Or Vehicles Adapted To Overnight Accommodation

    The criminal defendants in United States v. Sims and United States v. Stitt were both sentenced under the mandatory minimum 15-year prison term provided by the Armed Career Criminal Act, which applies where a defendant had three prior convictions for certain crimes, including “burglary.” Sims and Stitt had each been previously convicted of burglary under state laws, which... Read More >

  • November 2018
    Court Upholds Challenge To Designation Of A “Critical Habitat”

    Under the Endangered Species Act, when an animal is classified as “endangered,” the Secretary of the Interior must then designate the “critical habitat” of that animal for protection. In 2001, the dusky gopher frog was classified as endangered. The Secretary then designated the four areas where the frogs currently lived as critical habitats, along with another area, dubbed “Unit... Read More >

  • November 2018
    Court Rules ADEA Applies To All Governmental Entities Regardless Of Size

    When two firefighters were terminated to cut costs, they sued under the Age Discrimination Employment Act, alleging they were discriminated against based on their ages. The fire department argued that it did not have enough employees to qualify as an employer under the Act. The Act provides: “The term ‘employer’ means a person engaged in an industry affecting commerce... Read More >

  • September 2018
    Condo Liens Entitled To Super-Priority Status Regardless Of Number Of Months Sought

    Under D.C. Code sec. 42-1903.13, liens imposed by a condominium association for up to six months of unpaid condo fees were entitled to super-priority status ahead of all other liens on the condo. In two prior decisions, the D.C. Court of Appeals held that a foreclosure sale under such a super-priority lien necessarily wiped out all other liens of the... Read More >

  • August 2018
    Virginia: No Bona Fide Purchaser of an Easement; Terms of Revocable Trust May Permit Transfer by Non-Trustee

    The recent case of Kruck v. Krisak, 2018 WL 2386671 (Fairfax Cir. Ct. 2018) addressed two issues of first impression in Virginia regarding bona fide purchasers and how the transfer of real property to a trust might affect a grant of an easement. The case began with an easement for a septic field that was granted in 1974 by Austin Foster... Read More >

  • June 2018
    Justice Kennedy Announces His Retirement

    After 30 years as an Associate Justice of the U.S. Supreme Court, Justice Anthony M. Kennedy announced his retirement effective July 31, 2018. In a letter to President Trump, Kennedy wrote: “For a member of the legal profession it is the highest of honor to serve on this court. Please permit me by this letter to express my profound gratitude... Read More >

  • June 2018
    Court Rejects Overly Strict Standard Used By Special Master In State Dispute Over Water Rights

    In an original proceeding brought by Florida against Georgia in a dispute over water apportionment from an interstate river basin, the Court referred the matter to a Special Master for evidentiary proceedings. Florida, as the downstream state, argued that Georgia was using more than its fair share of the water from the basin, thereby harming wildlife in Florida. Ultimately the... Read More >

  • June 2018
    First Amendment Forbids Mandatory Union Fees From Public Sector Unions

    Illinois permits public employees to unionize, and Mark Janus was a state employee whose unit was represented by a public-sector union that engaged in collective bargaining on behalf of its members. The union required that Janus pay a union fee, but he objected since he opposed many of the collective bargaining positions the union took. In the previous case of... Read More >

  • June 2018
    Court Upholds President Trump’s Travel Ban

    In 2017, President Trump issued a proclamation restricting entry of people from eight countries, with exemptions for lawful permanent residents and case-by-case waivers under certain circumstances. The stated basis of the travel ban was that the named countries failed to provide the U.S. with sufficient information about the entrants, creating a security threat, although challengers to the ban (except as... Read More >

  • June 2018
    Court Strikes Down Abortion Notices Under First Amendment

    A number of pro-life crisis pregnancy centers mounted a First Amendment challenge to a California law that required licensed medical providers to provide a notice to its patients of the availability of free or low-cost services, including abortions, and required each unlicensed pro-life medical provider to notify patients that it was not licensed. The centers requested a preliminary injunction, which... Read More >

  • June 2018
    American Express’s “Antisteering” Provisions Survive Antitrust Scrutiny

    Like other credit card companies, American Express (AMEX) permits cardholders to purchase things on credit. However, AMEX encourages cardholder spending by providing more benefits to its members, and that results in higher fees charged to merchants. Merchants, in response, sometimes encouraged customers to use other cards, called “steering.” AMEX in turn put antisteering provisions into its merchant contracts. The government... Read More >

  • June 2018
    Narrow Majority Largely Upholds Texas Redistricting Plan Against Gerrymandering Challenge

    Abbott v. Perez presented the third opportunity for the Court to address gerrymandering claims under the Voter Rights Act, this time examining plans approved by the Texas legislature in 2013 that were largely in accordance with interim plans created by a three-judge Texas court. The 2013 plans evolved from earlier 2011 plans that did not meet with any court’s... Read More >

  • June 2018
    Supreme Court Has Appellate Jurisdiction To Hear Appeals From The Court Of Appeals For The Armed Forces

    There are a separate series of trial and appellate military courts that address criminal charges against service members, capped by the Court of Appeals for the Armed Forces (CAAF). After Keanu Ortiz was convicted of possession and distributing child pornography, he appealed to the Air Force Court of Criminal Appeals (CCA). Colonel Martin Mitchell was part of the panel of... Read More >

  • June 2018
    Defendant Who Consents To Separate Trials Not Subject To Double Jeopardy

    After Michael Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon, he opted for separate trials, doing burglary and grand larceny first, unlawful possession second. He was concerned that his prior convictions for burglary and larceny, which would help prove the unlawful possession charge, would prejudice the jury’s consideration of his current... Read More >

  • June 2018
    Government Needs A Warrant To Obtain Cell-Site Records To Track Suspect’s Movements

    When the FBI suspected that Timothy Carpenter was involved in several robberies, it identified his cell phone number and obtained cell-site information from his wireless carriers without a warrant, which could be used to track the movement of his phone, and thus Carpenter himself. Carpenter moved to suppress the information as violating the Fourth Amendment’s requirement for a warrant supported... Read More >

  • June 2018
    Patent Act Permits Recovery Of Lost Profits From Foreign Patent Infringement

    In WesternGeco LLC v. ION Geophysical Corp., WesternGeco sued ION for patent infringement under the Patent Act for creating an identical ocean floor surveying system that ION assembled overseas from parts made in America. A jury awarded WesternGeco damages and lost profits. ION moved to set aside the lost profits since it argued the Patent Act did not... Read More >

  • June 2018
    Removal Notice Must Specify Time And Place Of Proceeding To Stop Ten-Year Period To Cancel Removal Proceedings

    Once a nonpermanent resident has been in the U.S. for a ten-year continuous period, they can cancel removal proceedings under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That period is stayed if the resident receives a written notice to appear that specifies a time and place for the removal proceedings during the ten year period. A... Read More >

  • June 2018
    Securities And Exchange Commission Administrative Law Judges Are “Officers Of The United States” Under Appointments Clause

    The Constitution’s Appointments Clause sets forth certain requirements for appointing “Officers of the United States,” who are more than mere employees of the federal government. The Securities and Exchange Commission (SEC) utilizes Administrative Law Judges (ALJ) to adjudicate administrative proceedings involving violations of securities laws. Those ALJs are not appointed in accordance with the Appointments Clause. When Raymond Lucia was... Read More >

  • June 2018
    Court Permits States To Impose Sales Taxes On Online Retailers Under The Commerce Clause

    In prior cases going back to 1992, the Court had ruled that the Commerce Clause precluded States from imposing sales taxes on sellers who did not maintain a physical presence in the State. But then the Internet exploded, and online retailers like Amazon regularly sell products in the various States while eluding sales taxes. In South Dakota v. Wayfair,... Read More >

  • June 2018
    Court Upholds District Court Judge’s Explanation For A Sentencing Modification

    A criminal drug offender was originally sentenced to 135 months’ imprisonment after the Sentencing Guidelines provided a range of 135 to 168 months. The U.S. Sentencing Commission thereafter revised the range for the same crime to 108 to 135 months. The defendant moved the district court to modify his sentence accordingly. The judge lowered the sentence to 114 months, not... Read More >

  • June 2018
    Courts Of Appeals Are Obligated To Correct Plain Sentencing Guideline Errors Under Federal Rule Of Criminal Procedure 52(b)

    Under Federal Rule of Criminal Procedure 52(b), a court of appeals “should exercise its discretion to correct”  an error in the district court’s application of the Sentencing Guidelines if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” In Rosales-Mireles v. United States, after the defendant was sentenced under a miscalculation under the Sentencing Guidelines... Read More >

  • June 2018
    Court Denies Injunctive Relief In Maryland Gerrymandering Case

    In Benisek v. Lamone, several Republican voters filed suit in 2017 challenging Maryland’s 2011 redrawing of its Sixth District as being gerrymandered against their constitutional rights. Those voters moved for a preliminary injunction in the district court, to allow the creation of a new districting map. The district court denied that relief and stayed the proceedings pending the decision... Read More >

  • June 2018
    Plaintiffs Lacked Standing To Bring Gerrymandering Claims

    In Gill v. Whitford, twelve Democratic voters brought claims arguing that the redrawing of Wisconsin’s districts after the 2010 census was an unconstitutional gerrymandering that made it harder for Democratic candidates to get elected. Specifically, the redrawing allegedly “cracked” Democratic voters into other districts where they could not reap a majority, and “packed” Democratic voters into a few districts... Read More >

  • June 2018
    Court Permits First Amendment Retaliation Claim Against Municipality Despite Probable Cause To Arrest

    Fane Lozman was something of a political gadfly to the City of Riviera Beach’s city council, and had filed a lawsuit against it. During a closed meeting, one of the council members suggested that the council “intimidate” Mr. Lozman, which the council supported. At a subsequent public meeting, when Lozman sought to discuss the recent arrest of a former county... Read More >

  • June 2018
    Minnesota Law Banning Political Insignias In A Polling Place Struck Down Under The First Amendment

    Under Minnesota law, a “political badge, political button, or other political insignia may not be worn at or about the polling place” where voters head to vote in elections. Election judges working the polls have authority to determine whether a particular item violates the prohibition, and those who refuse to remove offending items go through an administrative process that may... Read More >

  • June 2018
    Statements From Foreign Governments Entitled To Respectful Consideration Under Rule 44.1, But Not Conclusive

    In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., American purchasers of Vitamin C accused the selling Chinese companies of fixing prices in violation of U.S. antitrust laws. The Chinese companies argued that Chinese law required them to fix the prices, and the Chinese government, through its Ministry of Commerce, filed a statement in support of that... Read More >

  • June 2018
    Contracts Clause Permits Retroactive Minnesota Law Changing Life Insurance Beneficiaries

    In Sveen v. Melin, Mark Sveen purchased a life insurance policy naming his wife, Kaye Melin, as the primary beneficiary, and his two children from a prior marriage as contingent beneficiaries, in 1998. In 2002, Minnesota enacted a law under which a divorce automatically removed a spouse as a beneficiary from such a policy. Sveen and Melin divorced in... Read More >

  • June 2018
    Court Limits Tolling Of Statute Of Limitations In Class Actions To Future Filers

    Under prior Court precedent, when a class action is filed but then fails to gain certification, the statute of limitations is tolled for those within the putative class, allowing them to intervene as individual plaintiffs in that action, or bring an individual suit. In China Agritech, Inc. v. Resh, instead of bringing a separate individual suit or intervening, the... Read More >

  • June 2018
    Closely Divided Court Upholds Ohio Law Maintaining Voter Rolls

    Under Ohio law, when a voter fails to vote for two years, the state sends the nonvoter a postage prepaid return card to verify his or her address. Voters who do not return the card and do not vote in any election for four more years are then presumed to have moved and are removed from the voting rolls. In... Read More >

  • June 2018
    Court Dismisses As Moot Lawsuit Over Unlawful Immigrant’s Abortion

    When a pregnant minor unlawful immigrant sought to get an abortion while in the custody of the Office of Refugee Resettlement, the Office’s policy prohibited her from getting an abortion without the Director’s permission. The minor moved for a temporary restraining order of the policy, which the district court granted. The minor then attended preabortion counseling as required under Texas... Read More >

  • June 2018
    Criminal Defendants Sentenced Under Mandatory Minimums Not Entitled To Relief Under 18 U.S.C. sec. 3582(c)(2)

    In Koons v. United States, after several criminal defendants pleaded guilty to drug conspiracy charges, the district court discovered that the mandatory minimum sentence provided under 21 U.S.C. sec. 841(b)(1) was higher than the sentencing range provided under the Sentencing Guidelines. The district court decided that the mandatory minimums trumped the Guidelines, and sentenced the defendants under that range,... Read More >

  • June 2018
    Court Permits Bankruptcy Discharge Despite Oral Misrepresentation Over Ability To Pay Legal Bill

    When R. Scott Appling fell behind in paying his legal bills, he orally told his attorneys that he would repay them with a tax refund he was expecting to get. When he got the (lower than expected) refund, he used it to pay other expenses instead, lying to his attorneys so they would continue with the representation. After the attorneys... Read More >

  • June 2018
    Court Resolves Confusion In Certain Plea Agreements, Holds They Are Subject To Sentencing Guidelines

    In 2011, the Court had to decide whether a criminal defendant who entered into a plea deal under Federal Rule of Criminal Procedure 11(c)(1)(C) could petition to reduce his or her sentence under 18 U.S.C. sec. 3582(c)(2) (which permits a reduction upon a change in the Sentencing Guidelines) if the Sentencing Guidelines were later amended to lower the sentencing range... Read More >

  • June 2018
    Court Sides With Baker Who Refused To Bake Custom Cake For Gay Wedding

    When Jack Phillips refused, on religious grounds, to make a custom wedding cake for a gay couple, the couple filed a charge with the Colorado Civil Rights Commission alleging the refusal violated Colorado’s Anti-Discrimination Act. Phillips maintained he had a First Amendment right to refuse to bake the cake, but the Commission found him in violation of the Act and... Read More >

  • May 2018
    Private Investigations Not Compensated Under Mandatory Victims Restitution Act

    The Mandatory Victims Restitution Act of 1996 requires defendants convicted of certain federal offenses to reimburse victims for “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. sec. 3663A(b)(4). When Sergio Lagos defrauded a lender for tens of... Read More >

  • May 2018
    Police Cannot Search Vehicle Within Curtilage Of A Home Without A Search Warrant

    The Fourth Amendment has long required that any police officer entering the curtilage of a home to have a search warrant. However, the Fourth Amendment also has an “automobile exception,” permitting warrantless searches of vehicles due to their ready mobility. In Collins v. Virginia, a police officer entered the curtilage of a home (its driveway) without a warrant to... Read More >

  • May 2018
    Private Arbitration Agreements Preclude Employee Class Actions

    In Epic Systems Corp. v. Lewis, employees sued their employer in a class action for violation of the Fair Labor Standards Act. Those employees each had signed an agreement to arbitrate employment disputes under the Federal Arbitration Act, and the employer invoked those agreements to preclude the class actions. The employees argued that the National Labor Relations Act triggered... Read More >

  • May 2018
    Prior Precedents Did Not Preclude Tribal Sovereign Immunity In A Property Dispute

    After the Upper Skagit Indian Tribe purchased a 40-acre parcel of land in Washington State, a survey of that parcel revealed that approximately an acre of it lay on the other side of a boundary fence, which the Tribe’s new neighbors, the Lundgrens, believed they had owned for decades. The Lundgrens file a quiet title action, and the Tribe asserted... Read More >

  • May 2018
    Complaints Of Use Of Full Restraints Moot After Criminal Cases Ended

    A group of criminal defendants challenged the policy of the United States District Court for the Southern District of California, which permitted officers to put in-custody defendants in full restraints for nonjury proceedings in court. The district court denied the claims, but while the appeal before the Ninth Circuit was pending all of the cases involving those defendants resolved. The... Read More >

  • May 2018
    Drivers Have A Reasonable Expectation Of Privacy In A Car Rented By Another

    In Byrd v. United States, Terrence Byrd was pulled over while driving a car rented by Latasha Reed, although the rental agreement did not list Byrd as an authorized driver. The police searched Byrd’s car and discovered 49 bricks of heroin in the trunk. Byrd moved to suppress the evidence as fruits of an unlawful search, but the district... Read More >

  • May 2018
    Court Rejects Facial-Insufficiency Challenge To Overbroad Wiretap Orders

    A federal judge is only authorized to issue a wiretap order for wiretaps conducted within his or her jurisdiction. In Dahda v. United States, a Kansas federal judge issued wiretap orders authorizing wiretaps in Kansas, but also contained language permitting wiretaps in Missouri. Federal investigators conducted the wiretaps in Missouri, and the evidence they gathered led to Los and... Read More >

  • May 2018
    Court Strikes Down Federal Law Banning Sports Betting

    In a 7-2 opinion by Justice Alito, the Court reversed the Third Circuit and held that the Professional and Amateur Sports Protection Act was unconstitutional for violating the “anticommandeering rule” inherent in the Tenth Amendment, as it impermissibly sought to regulate state regulation of sports betting. The Act in question forbid states from authorizing betting schemes based on competitive sporting... Read More >

  • May 2018
    Sixth Amendment Permits Defendant To Insist On Not Conceding Guilt For First-Degree Murder

    Robert McCoy was charged with first-degree murder for killing his estranged wife’s mother, stepfather, and son. The evidence was damning, but McCoy insisted that he was innocent. His attorney at trial, Larry English, decided that the best strategy in the face of the evidence was to admit to the jury that McCoy committed the murders, but argue that his mental... Read More >

  • April 2018
    Court Strikes Portion Of Immigration and Naturalization Act as Void for Vagueness

    In one of Justice Scalia’s last majority opinions before his death, the Court held that part of a federal law defining “violent crime” was unconstitutionally void for vagueness in Johnson v. United States, 576 U.S. --- (2015). The Immigration and Nationality Act similarly provided that a person could be deported for committing an “aggravated felony,” which included a “crime of... Read More >

  • April 2018
    Court Awards Qualified Immunity To Officer Who Shot Woman Claiming Excessive Force

    In Kisela v. Hughes, officers reporting to a call of a woman acting erratically with a large knife discovered Ms. Hughes emerging from her house with a knife in her hand, heading toward another woman, Ms. Chadwick, who it turned out was Hughes’ roommate. Hughes stopped six feet from Chadwick, and the officers drew their firearms and told Hughes... Read More >

  • April 2018
    Service Advisors Are Exempt From Fair Labor Standards Act Overtime-Pay Requirement

    The Fair Labor Standards Act exempted “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” from overtime-pay requirements under the Act. In Encino Motorcars, LLC v. Navarro, a group of service advisors sued for overtime pay under the Act when the Department of Labor decided in 2011 that they were excluded from the exemption. The Court... Read More >

  • March 2018
    Court Rejects Fifth Circuit’s “Substantial Need” Test For Funding Under 18 U.S.C. sec. 3599(f)

    Under 18 U.S.C. sec. 3599(f), a defendant charged with a crime punishable by death can petition the trial court for funds that would be “reasonably necessary” for investigative, expert, or other services needed for the defense. In Ayestas v. Davis, a man sentenced to death made such a petition to support his federal habeas claim for ineffective assistance of... Read More >

  • March 2018
    Government Must Prove Specific Interference With Targeted Tax-Related Proceedings For Tax Obstruction Charge

    IRS code makes it a crime under 26 U.S.C. sec. 7212(a) to “obstruct or impede, or endeavor to obstruct or impede, the due administration of” the Internal Revenue Code, either “corruptly or by force or threats of force.” The IRS investigated Carlo Marinello, and ultimately charged him with several violations of the tax code, including for tax obstruction under Section... Read More >

  • March 2018
    Court Permits State Court Jurisdiction Over Securities Class Actions

    In Cyan, Inc. v. Beaver County Employees Retirement Fund, the Fund purchased shares in Cyan which then declined in value, prompting the Fund and others to file a class action suit against Cyan in state court under the Securities Act of 1933. Cyan argued that the Securities Litigation Uniform Standards Act of 1998, as it amended the 1933 Act,... Read More >

  • March 2018
    DC Super-Priority Lien on a Condo Cannot Foreclose Subject to First Priority Mortgage

    Following from its decision in Chase Plaza Condominium Assoc. v. JPMorgan Chase Bank, 98 A.3d 166 (DC 2014), in which the DC Court of Appeals held that a DC condominium foreclosing on its statutory six-month super-priority lien could by law extinguish an otherwise first-priority mortgage when the proceeds of the sale were insufficient to satisfy that mortgage, the Court was... Read More >

  • March 2018
    Collective Bargaining Agreements Must Be Interpreted Under Ordinary Principles of Contract Law

    In a per curiam opinion in CNH Industrial N.V. v. Reese, the Court reversed the Sixth Circuit’s decision to apply its precedent to render a collective bargaining agreement ambiguous as a matter of law. In a previous case, M&G Polymers USA, LLC v. Tackett, 574 U.S. ___ (2015), the Court required the Sixth Circuit to interpret such agreements using... Read More >

  • March 2018
    Prisoner’s Attorneys’ Fee Award Must First Come From The Judgment

    Murphy v. Smith Under 42 U.S.C. sec. 1997e(d)(2), a prisoner who prevails in a civil rights suit, and receives an attorneys’ fee award, has a portion of his judgment, not to exceed 25 percent, applied to that award. When Charles Murphy won his suit against two prison guards, the district court ordered that Murphy pay ten percent of his attorney’s... Read More >

  • March 2018
    Court Restricts Collections Efforts Under Foreign Sovereign Immunities Act

    In Rubin v. Islamic Republic of Iran, certain parties obtained a judgment against Iran under the state sponsors of terrorism exception to the Foreign Sovereign Immunities Act. They then sought to enforce that judgment against Iranian historical artifacts housed at the University of Chicago. The district court declined to permit the attachment, and the Seventh Circuit affirmed. The Court,... Read More >

  • March 2018
    Guilty Plea Does Not Bar A Constitutional Challenge To Conviction

    Class v. United States When Rodney Class was indicted for possessing firearms in his locked vehicle parked at the U.S. Capitol, he moved to dismiss on the basis that the law violated his Second Amendment and Due Process rights under the Constitution. The district court declined Class’ motion, and he entered into a written plea agreement, which did not expressly... Read More >

  • March 2018
    Court Reads Dodd-Frank Whistleblower Law Narrowly, Excludes Internal Whistleblower

    Digital Realty Trust, Inc. v. Somers In 2014, Paul Somers, a vice president for a real estate investment trust, reported to senior management several suspected securities-law violations by the trust. He was subsequently terminated. He brought suit claiming protection as a whistleblower as defined under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which defines whistleblowers as... Read More >

  • March 2018
    United States Permitted To Intervene In Water Dispute Between States

    In an original action concerning water rights agreed to between several states under the Rio Grande Compact, Texas argued that New Mexico was permitting its users to siphon off more water than the Compact permitted. The United States sought to intervene, making the same claims as Texas, in part because New Mexico’s actions depleted a reservoir through which the Government... Read More >

  • March 2018
    Insider Status In Bankruptcy Reviewed For Clear Error, Not De Novo

    In U.S. Bank, N.A. v. Village at Lakeridge, LLC, the Village petitioned for Chapter 11 bankruptcy with two primary creditors, U.S. Bank and an insider owner. It needed consent to enter into a “cramdown” reorganization plan, but U.S. Bank refused to consent, and the insider was statutorily unable to provide consent. To fix the problem, the insider owner transferred... Read More >

  • February 2018
    Immigrants Detained By The Government Not Entitled To Bond Hearings

    Under immigration law, applicants for admission to the United States may be detained by the Government until certain proceedings have concluded. Nothing in the applicable statutes limit the duration of detention, nor mention bond hearings. In Jennings v. Rodriguez, an immigrant filed a habeas corpus suit arguing that he should be entitled to a bond hearing once his detention... Read More >

  • February 2018
    Fractured Court Acknowledges Congress’ Power To Abridge Court Jurisdiction Mid-Case

    While a case was pending in federal district court regarding a taking of land into trust on behalf of an Indian Tribe, Congress passed the Gun Lake Trust Land Reaffirmation Act, which provided that suits relating to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” The plaintiff argued that the law... Read More >

  • February 2018
    Court Narrows Bankruptcy Safe Harbor Provision

    In Merit Management Group, LP v. FTI Consulting, Inc., the Court addressed 11 U.S.C. sec. 548(e), which allows bankruptcy trustees to set aside and recover certain transfers for the benefit of the bankruptcy estate, but not a “settlement payment . . . made by or to (or for the benefit of) a . . . financial institution . ... Read More >

  • February 2018
    DC Circuit Reverses Attempt At Currency Conversion Through Rule 59(e)

    The case of Leidos, Inc. v. Hellenic Republic is a study in “be careful what you wish for.” After requesting an arbitration award in euros, and obtaining a judgment from the federal district court confirming that award in euros, Leidos, Inc. moved under Fed. R. Civ. P. 59(e) to convert that award to U.S. dollars, nunc pro tunc to... Read More >

  • February 2018
    Southern District Heightens Lawyers’ Duties in Preventing Spoliation of Evidence by Clients

    In Industrial Quick Search, Inc. et al. v. Miller, Rosado & Algois, LLP et al., January 2, 2018, the Southern District of New York issued a decision underscoring the importance of lawyers paying early attention to the need for imposing “litigation holds,” being proactive in ensuring compliance with such holds, and making a clear record of steps taken with... Read More >

  • January 2018
    Challenges to EPA “Waters of the United States” Rule Must Be Filed In Federal District Court

    The Clean Water Act limits the discharge of pollutants into “navigable waters,” which is defined by Congress as “the waters of the United States.” The EPA issued a Rule to define that term. While most agency rules are properly challenged in the federal district courts, the Act required challenges to rules issuing “any effluent limitation” or “issuing or denying any... Read More >

  • January 2018
    Court Holds That Tolling Statute “Stopped The Clock” On State Law Claims, Instead Of Providing A “Grace Period”

    In Artis v. District of Columbia, Artis filed a suit against D.C. in federal court with a federal discrimination claim and some state claims. Two and a half years later, the district court dismissed the federal claim, and with it dismissed the state claims for lack of jurisdiction. Under 28 USC sec. 1367(d), the “period of limitations” for re-filing the... Read More >

  • January 2018
    Court Finds Probable Cause To Arrest Partygoers For Unlawful Entry

    When police officers busted a raucous party being held in a vacant house, some of the partygoers said that “Peaches” owned the house and allowed the party. On the phone, though, Peaches admitted she had no such authority, and the true owner told police he had never given anyone permission to be there. The officers arrested the partygoers for violating... Read More >

  • November 2017
    Supreme Court Clarifies Which Deadlines Are Jurisdictional

    In Hamer v. Neighborhood Housing Services of Chicago, the Court, in a unanimous opinion by Justice Ginsburg, set forth a clear and easy way to tell whether a deadline is jurisdictional, and cannot be waived or extended, or is merely a “claim-processing rule” that can be extended: deadlines provided by statute are jurisdictional, while deadlines provided by court rules are... Read More >

  • June 2017
    Court Provides Guide For Defining Property In A Takings Case

    St. Croix has a regulation that prohibits the owners of two neighboring properties along the St. Croix River from being separately sold or built upon unless each property has at least an acre of developable land. The Murrs owned two such parcels, each with less than an acre available to be developed. The Murrs wanted to sell one of the... Read More >

  • June 2017
    Court Rules That District Courts Can Hear Mixed Cases Dismissed For Lack Of Jurisdiction, Over Justice Gorsuch’s First Dissent

    In Perry v. Merit Systems Protection Board, the Court had to determine which federal court could hear an appeal from the Board’s decision that it lacked jurisdiction to hear a federal employee’s case. When Perry was fired from his job with the U.S. Census Bureau, he claimed discrimination (making his case a “mixed” one), but then signed a settlement agreeing... Read More >

  • June 2017
    Court Applies Five-Year Limitations Period to SEC Disgorgement Actions

    In Kokesh v. Securities and Exchange Commission, the SEC sought to force Kokesh to disgorge millions he had misappropriated from various businesses from 1995 to 2009. While the Supreme Court had long held that a five-year limitations period applied to any SEC “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture,” the district court held... Read More >

  • June 2017
    Supreme Court Limits Government's Power to Seize Personal Property

    The Comprehensive Forfeiture Act mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes. After brothers Tony and Terry Honeycutt were indicted for such drug crimes for selling a particular chemical through a hardware store Tony owned, Tony pled guilty and agreed to forfeit the bulk... Read More >

  • June 2017
    An ERISA Church Pension Plan Need Not Be Established by a Church

    Originally, the Employee Retirement Income Security Act exempted “church plans” from a variety of rules designed to ensure solvency, and defined those plans as having been “established and maintained . . . for its employees . . . by a church.” Later, Congress amended this exception to include “a plan maintained by an organization . . . the principal purpose... Read More >

  • June 2017
    Court Affirms Virginia Court’s Application Of Juvenile Punishment Standards

    In Graham v. Florida, 560 U.S. 48 (2010), the Court held that juvenile defendants convicted of nonhomicide offenses could not be sentenced to life without parole. Virginia had already abolished parole and instead replaced it with a “geriatric release” program which allowed older inmates to receive conditional release. In Virginia v. LeBlanc, LeBlanc was sentenced to life in prison for... Read More >

  • June 2017
    Patent Holders May Not Use Federal Law To Issue Injunctions Against Applicants For Biosimilar Products

    The Biologics Price Competition and Innovation Act of 2009 provides an abbreviated process for the FDA to approve drugs that are biosimilar to already licensed biological products. The Act, in part, requires an applicant for a biosimilar product to provide its application and manufacturing information to the patent holder within 20 days of the date the FDA notifies the applicant... Read More >

  • June 2017
    Court Again Limits Ability To Appeal Denial Of Class Certification

    Consumers who purchased Xbox 360s sued Microsoft both individually and as a class. The district court struck the class allegations, refusing to certify the class. The Ninth Circuit refused to hear the appeal of that ruling under Fed. R. Civ. P. 23(f), which allows such interlocutory appeals only by permission of the court of appeals. Instead of pursuing their individual... Read More >

  • June 2017
    Court Again Limits Forum-Shopping In Suits Against Nationwide Companies

    In Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco City, a number of users of the drug Plavix sued the maker in California for alleged health problems caused by the drug, despite the fact that hardly any of the users lived in that state, and Bristol-Myers being incorporated in Delaware and headquartered in New York. None of the... Read More >

  • June 2017
    Supreme Court: Posting To Facebook Is A First Amendment Right

    A North Carolina law made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” When a sex offender posted on Facebook about getting a traffic ticket dismissed, he was convicted and... Read More >

  • June 2017
    September 11 Detainees Denied A Bivens Action For Their Detention

    In Ziglar v. Abbasi, the Court was asked to extend the implied cause of action theories under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) to alleged constitutional violations six men claimed to have suffered during detention shortly after the September 11 terrorist attacks. The Second Circuit permitted the claims to go forward against certain executive officials,... Read More >

  • June 2017
    Supreme Court Clarifies Expert Psychiatric Assistance In Indigent Defendant Cases

    The Court had previously held in Ake v. Oklahoma, 470 U.S. 68 (1985), that when an indigent defendant’s mental condition is relevant to his criminal culpability, the State must provide that defendant with access to a mental health expert who is sufficiently available to the defense, and independent from the prosecution, to conduct a psychiatric examination and “assist in evaluation,... Read More >

  • June 2017
    SCOTUS: Disparaging Trademarks Have First Amendment Protection

    The Lanham Act has a provision prohibiting the registration of trademarks that “disparage . . . or bring . . . into contemp[t] or disrepute” and “persons, living or dead.” Simon Tam, lead singer of the Japanese rock band “The Slants” sued when the band’s name was denied registration. The Federal Circuit held that the disparagement clause was facially unconstitutional... Read More >

  • June 2017
    Supreme Court Rejects Gender-Based Differentiation In Immigration Law

    The Immigration and Naturalization Act provided that a child born abroad to a father who was a U.S. citizen and a mother who was not was eligible for U.S. citizenship if the father had spent ten years in the U.S., with at least five of those years after turning 14. If the mother was the U.S. citizen, however, the mother... Read More >

  • June 2017
    Justice Gorsuch’s First Majority Opinion Is A Win For Debt Purchasers

    In Henson v. Santander Consumer USA, Inc., Justice Gorsuch authored the unanimous decision in a decidedly conversational tone, holding that an entity that purchases another’s debt and then seeks to collect that debt is not a “debt collector” under the Fair Debt Collection Practices Act, and thus is not beholden to that Act’s strictures for debt collection. The Act defines... Read More >

  • June 2016
    VA: Foreclosure Purchasers Face New Potential Hurdle In Virginia

    In Parrish v. Federal National Mortgage Association, the Virginia Supreme Court ruled 5-2 that when a defendant raises a bona fide question of the plaintiff's title in an unlawful detainer/ejectment action before the General District Court, that court loses subject matter over the case and the plaintiff must vindicate its title in the Circuit Court, thereby creating another... Read More >