Category Archives: Litigation

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 >

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 >

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 >

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 >

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 >

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 >

Stock Options Are Not Money Remuneration Under The Railroad Retirement Tax Act Of 1937

To support the nation’s ailing railroad systems, Congress passed the Railroad Retirement Tax Act in 1937 to bolster railroad employee pensions based on their “compensation,” which was defined as “any form of money remuneration.” Previously, the exception was used to exclude traditional perks like food, lodging, and tickets, but railroads recently began offering stock options. The lower courts split... Read More >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >