Category Archives: General Litigation & Trial Practice

Attorney James Markels to Present “View from the Bench” CLE for Fairfax Bar Association

On October 26, 2021, Attorney James Markels will participate in a CLE titled "Annual Ultimate View from the Bench" for the Fairfax Bar Association. Mr. Markels will moderate the final panel of the event, "Issues in Civil, Criminal, and Family Practice" from 6:30-7:30PM. The list of speakers for the program, along with a link to register for the event, ... Read More

SCOTUS Opinion: Bare Majority Of Court Allows Texas Abortion Law To Go Into Effect

The Texas Heartbeat Act created a private right of action to sue anyone who performed or assisted in performing an abortion after a heartbeat had been detected in a fetus—generally after about six weeks from conception, but well before the viability benchmark established in Roe v. Wade, 410 U.S. 113 (1973). Abortion providers sued a state court judge, a state ... Read More

Court Opinion: D.C. Circuit Rejects Challenge To House Resolution Allowing Proxy Voting During Pandemic

In May of 2020, the U.S. House of Representatives adopted House Resolution 965, which allowed House members to cast votes and mark their presence by proxy during the public health emergency caused by COVID-19. The Republican minority filed suit challenging the Resolution, arguing that it was unconstitutional because the Constitution required that members be physically present on the House floor ... Read More

SCOTUS Opinion: Court Corrects Mischaracterization Of State Court’s Analysis Of Ineffective Counsel Claim

In Dunn v. Reeves, after Reeves was convicted of murder, he argued to the state court that he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). However, he did not call his attorneys to testify to rebut the presumption that counsel acted reasonably. The state appellate court denied relief because of the lack of evidence, ... Read More

SCOTUS Opinion: Charitable Donors Protected From Disclosure Under First Amendment

A California law requires charitable organizations to disclose the names and addresses of their major donors, presumably to police charitable misconduct. In Americans for Prosperity Foundation v. Bonta, two nonprofits refused to make that disclosure, and were threatened with suspension of their registration and fines. The nonprofits filed suit, arguing that the disclosure law violated their First Amendment rights and ... Read More

SCOTUS Opinion: Court Upholds Arizona Voting Restrictions Against Voting Rights Act Challenge

The case of Brnovich v. Democratic National Committee involved two voting laws enacted in Arizona. The first mandated that if a person voted in person on election day in the wrong precinct, their vote would not be counted. The second made it illegal to engage in “ballot harvesting,” in which a third party (other than those expressly allowed by the ... Read More

SCOTUS Opinion: Court Narrowly Declines To Lift Nationwide Moratorium On Evictions—For Now

In the early days of the pandemic, Congress enacted a temporary hold on evictions nationwide that expired in July of 2020. On September 4, 2020, the Centers for Disease Control and Prevention (CDC) issued an order creating another nationwide moratorium on most evictions, purportedly under authority of the Public Health Service Act. A variety of realtors challenged the order, and ... Read More

SCOTUS Opinion: Court Denies Bond Hearings To Previously-Removed Undocumented Immigrants

Normally under 8 U.S.C. sec. 1226, an immigrant may apply for release on bond or parole pending a decision on whether they are to be removed from the country, with detention becoming mandatory once there is a final decision to remove. If an immigrant is removed, then re-enters the country illegally, the prior order to remove is reinstated, that decision ... Read More

SCOTUS Opinion: Court Narrows Application Of Assignor Estoppel In Patent Cases

The doctrine of assignor estoppel precludes the assignor of a patent from later challenging the validity of that patent, under the premise that doing so is not fair dealing. In Minerva Surgical, Inc. v. Hologic, Inc., the developer of a patent treating abnormal uterine bleeding through a moisture-permeable applicator head gave the patent to his company, Hologic, then left and ... Read More

SCOTUS Opinion: Natural Gas Act Permits Private Entities To Condemn State Property

In 1947, Congress amended the Natural Gas Act to permit the Federal Energy Regulatory Commission to issue certificates to natural gas companies enabling those companies to exercise federal eminent domain power in order to obtain the land needed to build their pipelines based on “public convenience and necessity.” In PennEast Pipeline Co, LLC v. New Jersey, PennEast received a certificate ... Read More

Court Requests Additional Examination Of Evidence In Excessive Force Case

The case of Lombardo v. City of St. Louis involved a detainee who died after police officers sought to restrain him after an apparent suicide attempt. After the detainee resisted, he was handcuffed and put in leg irons, and then placed prone on the floor, face down, with four officers applying pressure to hold him down. After 15 minutes of ... Read More

SCOTUS Opinion: No Exhaustion Requirement To Contest A Fifth Amendment Taking

In Pakdel v. City and County of San Francisco, a married couple who owned part of a multiunit residential building sued when the City of San Francisco required that they offer a lifetime lease to their tenant as part of allowing them to convert the building into a condominium, arguing that the lifetime lease requirement was an unconstitutional regulatory taking ... Read More

SCOTUS Opinion: Mere Violation Of A Statutory Right Not Inherently Sufficient To Provide Standing In Class Action

Over 8,000 individuals sued as a class under the Fair Credit Reporting Act, alleging that TransUnion falsely inserted alerts on their credit histories because they happened to have the same first and last name as serious criminals monitored by the Treasury Department’s Office of Foreign Assets Control (OFAC), and that TransUnion had formatting errors in its reports. At trial, the ... Read More

SCOTUS Opinion: Court Protects Small Refinery Exemptions To Renewable Fuel Program

As part of a renewable fuel program enacted by Congress under the Clean Air Act, the law allowed small refineries to be exempt from the Program’s requirements until 2011, then permitted the Environmental Protection Agency to extend that exemption for at least two more years if not doing so would cause “disproportionate economic hardship,” and further allowed any small refinery ... Read More

SCOTUS Opinion: Alaska Native Corporations Eligible For Funds From CARES Act

The Coronavirus Aid, Relief, and Economic Security Act allocated $8 billion to “Tribal governments” to pay for coronavirus expenditures. In Yellen v. Confederated Tribes of the Chehalis Reservation, the question was whether Alaska Native Corporations (ANCs) were eligible to receive any of those funds. The term “Tribal government” was defined as the “recognized governing body of an Indian tribe” as ... Read More

SCOTUS Opinion: Law Allowing Labor Unions Access To Private Land Deemed An Unconstitutional Taking

California enacted a regulation allowing labor organizations a limited duration right to access private farms to solicit support from farm workers thereon. Two such farmers filed suit seeking an injunction, arguing that the regulation was an unconstitutional per se physical taking without compensation. The district court and Ninth Circuit denied relief on the basis that the regulation did not allow ... Read More

SCOTUS Opinion: Pursuit Of A Fleeing Misdemeanor Suspect Does Not Automatically Permit Warrantless Entry Into Home

The Fourth Amendment permits police officers to enter a home when “the exigencies of the situation” create a compelling law enforcement need. The question in Lange v. California was whether pursuit of a fleeing misdemeanor suspect categorically qualified as an exigent circumstance. In this case, the suspect was driving while listening to loud music and honking his horn. When an ... Read More

SCOTUS Opinion: Cheerleader Wins First Amendment Case Involving Off-Campus Speech

When a high school student failed to make the varsity squad, she posted her frustrations on Snapchat using vulgar language. When the school learned of the posts, the student was suspended from the junior varsity squad in punishment. The student sued, arguing that her punishment violated her First Amendment rights under Tinker v. Des Moines Independent Community School District, 393 ... Read More

SCOTUS Opinion: Court Fine-Tunes Review Standard For Securities Class Actions

In Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, shareholders alleged securities fraud by Goldman Sachs and sought a class action certification. The shareholders invoked a presumption under Basic Inc. v. Levinson, 485 U.S. 224 (1988), that investors are presumed to rely on the market price of a company’s security, which is presumed to reflect all of the company’s ... Read More

SCOTUS Opinion: NCAA Violated Anti-Trust Laws By Capping Educational Benefits To Student Athletes

Under the NCAA’s rules, student athletes are restricted from receiving fair compensation for their prowess on the field or court, while the lucrative broadcasting deals mean big money for the NCAA itself. The students challenged those rules under the Sherman Act as violative of anti-trust law. The district court found that the NCAA enjoyed monopsony power over the collegiate sports ... Read More

SCOTUS Opinion: First Amendment Trumps Same-Sex Discrimination In Foster Care

The city of Philadelphia entered into contracts with various agencies to provide foster care services, including Catholic Social Services (CSS). While other foster care services would refer children to same-sex or unmarried couples, CSS would not because of its religious mission. The city decided that CSS’s position violated the non-discrimination provision in its contract and stopped referring children to them ... Read More

SCOTUS Opinion: Court Rejects Child Slavery Claims Under Alien Tort Statute

Six individuals from Mali alleged that they were trafficked as child slaves to the Ivory Coast to work on cocoa farms, and sued Nestle USA and other U.S.-based companies who bought cocoa from those farms, accusing those companies of aiding and abetting their enslavement. The individuals brought their claims under the Alien Tort Statute, which allows courts to exercise common-law ... Read More

SCOTUS Opinion: Justices Rejects Latest Challenge To Obamacare Under Lack Of Standing

Originally, the Patient Protection and Affordable Care Act required people to obtain minimum essential healthcare coverage, and instituted a monetary penalty for failure to do so. In a prior challenge to the Act, the Court ruled that the penalty was constitutional as a form of tax. Congress subsequently reduced the penalty to $0. Several states and two individuals sued again, ... Read More

SCOTUS Opinion: Court Raises The Bar On Defendants Seeking Relief From Felon-In-Possession Of Firearms Sentences

To be convicted of being a felon-in-possession of a firearm, the government must prove that the defendant knew he possessed a firearm and knew he was a felon at that time. The case of Greer v. United States involved two different situations, one where a defendant failed to request a jury instruction requiring the jury to find that he knew ... Read More

SCOTUS Opinion: Court Limits Sentencing Reductions Under Fair Sentencing Act To Mandatory Minimums

In 1986, Congress passed laws that punished possession of crack more severely than possession of cocaine, providing mandatory minimum sentences for smaller quantities of crack, but also allowing sentencing without a mandatory minimum as an alternative for those convicted of an unspecified amount of a drug. Tarahrick Terry was convicted of possessing an unspecified amount of crack under the alternative ... Read More

SCOTUS Opinion: Reckless Action Does Not Qualify As “Violent Felony” Under Armed Career Criminal Act

The Armed Career Criminal Act permits a longer jail sentence for those found guilty three or more times of a prior “violent felony,” which is defined as a crime that involves “the use, attempted use, or threatened use of physical force against the person of another.” The Court had previously decided that crimes of negligence lacked the necessary mens rea ... Read More

SCOTUS Opinion: Temporary Protected Status Does Not Make Undocumented Immigrant Eligible For Green Card

After an immigrant from El Salvador illegally entered the United States in 1997, he was given Temporary Protected Status (TPS) by the government, which allowed him to remain the country while his home country was considered too dangerous to return to, and “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” Over a decade later, the ... Read More

SCOTUS Opinion: Court Narrows Scope of Computer Fraud and Abuse Act of 1986

The Computer Fraud and Abuse Act of 1986 imposes criminal liability on anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U.S.C. sec. 1030(a)(2). The Act defines “exceeds authorized access” as meaning that a person accesses a computer with authorization, but uses that access to obtain or alter information that the person was not authorized to ... Read More

SCOTUS Opinion: Tribal Officers Have Authority Over Non-Indians On Public Roads Crossing Reservation Land

A police officer for the Crow Tribe approached a driver who had stopped on a portion of a public highway within the Crow Reservation. The officer observed the driver appeared not to be native and had watery, bloodshot eyes, and guns on the front seat. Without asking for identification that would resolve the driver’s status as a native, the officer ... Read More

SCOTUS Opinion: Immigrant’s Testimony Not Entitled To Presumption Of Credibility In Removal Case

The case of Garland v. Ming Dai involved two consolidated appeals where in each an immigrant noncitizen was requesting that he not be removed to his respective country of origin. In each case, the immigrant gave testimony in support of their cause to stay in the United States, and in each case the immigration judge and the Bureau of Immigration ... Read More