The Daily Washington LAWReporter

Transcription

AW
L
Daily Washington Law Reporter Index to Vol. 137
The Daily Washington
Reporter
Established in 1874
INDEX TO VOLUME 137
JANUARY THROUGH DECEMBER, 2009
This index consists of three handy aids for reference use of the January-December issues of the DAILY WASHINGTON LAW REPORTER: TABLE OF CASES, DIGEST OF OPINIONS and GENERAL INFORMATION. It is
recommended that this publication be placed in the back of the binder containing those issues, or used as the final pages
if issues are to be bound. Subscribers who wish to order binders for these issues can contact:
The Daily Washington Law Reporter Company
100 E. Pratt Street, Suite 2520, Baltimore, MD 21202
202-331-1700 or www.DWLR.com
TABLE OF CASES
The following Table of Cases follows the format below, divided by Court and then alphabetized by Litigants
and includes the DWLR (Index page numbers) for ease of reference.
COURT
Litigants..................................DWLR Page No. (Index Page No.)
DC COURT OF APPEALS
1220-1250 Twenty-Third Street Condo. Unit Ass’n, Inc.
v Bolandz...........................................................................1913 (35)
1836 S Street Tenants Association, Inc. v Estate of Battle..365 (13)
2348 Ainger Place Tenants Association, Inc. v DC, DTF Investments,
LLC, et al...........................................................................2625 (45)
Ackerman v Abbott.............................................................1949 (37)
Alcazar Tenants’ Ass’n, et al v Smith Property Holdings...2017 (18)
Allen v Schultheiss, et al....................................................2233 (35)
Andrate-Sorto v Allstate Ins. Co.........................................2565 (27)
Appleton and Ford v US....................................................2489 (18)
Atchinson v US..................................................................2321 (46)
Bacchus v US....................................................................1005 (17)
Barrett v Covington & Burling..............................................1969 (9)
Bean v Gutierrez................................................................2093 (18)
Biotmet, Inc. v Finnegan Henderson LLP............................729 (46)
Biratu v BT Vermont Avenue, LLC...........................................33 (8)
Blackson v US...................................................................1832 (19)
Board of Trustees, UDC v DiSalvo....................................1449 (46)
Bonner v Peterson...............................................................557 (26)
Brandywine Apartments, LLC v McCaster.............................353 (9)
Brawner v US.....................................................................1981 (19)
Brown v US........................................................................1921 (41)
Brown v US........................................................................2589 (39)
Bruno v Western Union Financial Services, et al...............1321 (29)
Byrd v VOCA Corp of Washington, DC................................125 (45)
Campbell v Noble..................................................................41 (10)
Carter v DC........................................................................2249 (13)
Charlery v DC DCRA.............................................................969 (5)
Chimes District of Columbia, Inc. v King..............................601 (46)
Choharis v State Farm Fire and Casualty Co......................157 (37)
Coghill and Marshall v US.................................................2305 (47)
Coulter v Gerald Family Care, PC, et al..............................377 (41)
Cunningham v US.............................................................. 1413 (6)
Curtis v Gordon.................................................................2141 (26)
Davis v US.........................................................................2705 (10)
DC v Chambers...................................................................521 (32)
DC v Economides................................................................697 (19)
DC Dept. of Consumer and Reg. Affairs v Stanford, PR...1801 (26)
Debman v Crane Co..........................................................1585 (47)
Diggs v US..........................................................................565 (27)
Digsby v US.......................................................................2289 (32)
Doreus v US........................................................................291 (32)
Dunn v US.........................................................................1569 (27)
Duvall v US..........................................................................1521 (8)
Dyer v Bilaal and Bilaal v Abell..........................................2449 (10)
Egbuka v US........................................................................785 (27)
Estate of Linda Blackwell v Campbell................................2438 (29)
Etchebarne-Bourdin et al v Radice et al............................2269 (35)
Evans v Dreyfuss Brothers, Inc & Tenacity 919 L Street,
LLC.....................................................................................1141 (33)
Fields v Mayo.....................................................................2297 (33)
FOP and DC DOC v DC PERB.........................................1277 (42)
Gaffney v US......................................................................2101 (14)
Gathers v US.....................................................................1853 (19)
Georgetown University v D.C. DOES...................................1125 (5)
Ginsberg v Granados, et al..................................................177 (17)
Giordano v Sherwood..........................................................769 (11)
Goines v US.........................................................................309 (17)
Gomez and The 933 L Street Tenants’ Ass’n v Independence
Management of Deleware, Inc.............................................897 (11)
Gorgone v DC Board of Zoning Adjustment......................1313 (28)
1
Grand Hyatt Washington v DC DOES...................................25 (31)
Grayson v AT&T Corp., et al..............................................2189 (33)
Green v US........................................................................1421 (33)
Green Leaves Restaurant, Inc. v 617 H Street Associates..1373 (14)
Hackney v Chamblee.........................................................1893 (20)
Harrington v Trotman.........................................................2465 (35)
Harris v Omelon.................................................................2633 (26)
Haywood v US....................................................................1113 (18)
Hedgepeth v Whitman Walker Clinic, et al.........................2209 (30)
High v US...........................................................................1229 (47)
Hobley v Law Offices of S. Howard Woodson, III.............2497 (42)
Hooks v US........................................................................1793 (11)
Howard v US........................................................................565 (11)
Howard v US......................................................................1873 (39)
Howerton v US.....................................................................481 (42)
Hunter v US.......................................................................2241 (20)
Ideal Academy Public Charter School v Bernola.................1261 (7)
Ingram v US.......................................................................1621 (34)
In re D.M.B., Evan J. Krame, Trustee and In re Dion Baker
Special Needs Trust, Evan J. Krame, Trustee...................2573 (20)
In re C.B.............................................................................2609 (34)
In re E.H...............................................................................713 (35)
In re K.S...............................................................................613 (42)
In re Elijah Peterson..........................................................2617 (20)
In re Estate of Mary Munawar............................................2025 (21)
In re Estate of Mary Nethken.............................................2281 (21)
In re Petition of J.T.B............................................................797 (34)
In re Petition of T.W.M..........................................................337 (47)
In re the Prosecution of Emerson Crawley.........................1841 (28)
In re Robert W. Mance, III..................................................2085 (36)
Jackson v US.......................................................................993 (32)
Jacobs v US.......................................................................2065 (21)
Jenkins v US......................................................................1901 (39)
Johnson and Franklin v US................................................2037 (21)
Jones v US........................................................................1221 (39)
Kabel v DC Board of Elections and Ethics...........................133 (30)
Kenneth Loewinger, et al v Stokes....................................1997 (22)
Kenyan Ltd. Partnership, et al v 1372 Kenyon Street NW
Tenants’ Association, et al..................................................2201 (36)
K.R. v C.N............................................................................865 (22)
Lancaster and Gayles v US...............................................1553 (28)
Larry v National Rehabilitation Hospital.............................1337 (37)
Lacek v Washington Hospital Center.................................1989 (43)
Martinez v US....................................................................2398 (43)
McCrae and Miller v US.....................................................2177 (38)
McCraney and Stewart v US.............................................2653 (14)
McNair Builders, Inc. v 1629 16th Street, LLC.......................761 (7)
Millard v US.........................................................................621 (43)
Millet v US..........................................................................1861 (40)
Minor v Springfield Baptist Church......................................317 (30)
Molla v Sanders.................................................................2125 (36)
Monteilh v AFSCME, AFL-CIO...........................................2045 (22)
Morris v US EPA................................................................1681 (12)
Mozee v US.........................................................................169 (22)
Nursing Unlimited Services, Inc v DC DOES....................1285 (30)
Obeniran v Hanley Wood, LLC..........................................2697 (29)
Obiazor v US.........................................................................545 (6)
O’Brien v US..........................................................................77 (40)
Owens and Young v US.....................................................2537 (23)
Pearson v Chung...................................................................69 (23)
Peart v DCHA....................................................................1253 (38)
Pellerin v 1915 16th Street Co-Op. Ass’n..........................2153 (27)
Redman v Potomac Place Associates, LLC.......................1185 (38)
Reid v DC..........................................................................2073 (15)
Richard, et al v McGreevy....................................................2545 (6)
Roberson v US......................................................................33 (15)
Rolen-Love v DC...............................................................1981 (30)
Sandula v DC Police & Firefighters’ Retirement
and Relief Board................................................................1933 (24)
Saunders v US...................................................................1429 (40)
Savoy v US........................................................................2221 (24)
2
Scales v DC.......................................................................1345 (24)
Schoonover v Chavous, et al.............................................1441 (12)
Scott and Patterson v US....................................................1505 (5)
Shelton v US......................................................................2517 (45)
Sims v US..............................................................................109 (7)
Tabaka v DC......................................................................1537 (31)
Tangoren v Stephenson; Hassan v Clarke and Biggs v Fenty..1717 (15)
Teal v US...........................................................................1381 (34)
Tetaz, et al v DC..................................................................1941 (8)
Thompson v DC.................................................................1961 (24)
Tiber Island Cooperative Homes, Inc. v DC Zoning Commission and
Marina View Trustee, LLC, Intervenor.....................................1489 (29)
Tippett v Daly.......................................................................393 (12)
Travelers Indemnity Co. v DC DOES and Vertrans, Inc....1561 (36)
Trustees of the Univ. of the District of Columbia v Vossoughi.....325 (15)
Tsintolas Realty Co. v Mendez, et al..................................2601 (37)
US v Thomas and Vincent...................................................2645 (6)
Wagley v Wagley..................................................................1089 (9)
Walker and Boyd v US.......................................................2425 (44)
Washington v US.................................................................557 (16)
WMATA v DC DOES............................................................401 (13)
Watson v US......................................................................2409 (25)
Watts v US.........................................................................1133 (44)
Way v US...........................................................................2385 (25)
White v DC Water and Sewer Authority.................................61 (31)
Williams v US.....................................................................2557 (16)
Williams and Bryant v US......................................................501 (8)
Wilson v Holt Graphic Arts, Inc..........................................2165 (25)
WMATA v Barksdale-Showell.................................................589 (7)
WMATA v DC DOES............................................................401 (13)
WMATA v DC DOES and Millhouse...................................2665 (36)
WMATA v Ferguson...........................................................1777 (29)
Wood v Neuman................................................................2333 (45)
Wright v US........................................................................1885 (41)
Wright-Taylor v Howard University Hospital.......................1205 (38)
Young v US........................................................................2581 (25)
Young-Jones v Bell..............................................................777 (31)
Zanders v Reid and Baker..................................................2113 (16)
DC SUPERIOR COURT
Davis v Davis.......................................................................721 (48)
Despertt v Greensmith’s, Inc., et al....................................1741 (50)
Feeney v Joseph J. Magnolia, Inc.......................................197 (49)
In the Matter of D.W...........................................................1513 (51)
Jackson v DC Board of Elections and Ethics.....................2473 (51)
Mokhtarzadeh v DC...........................................................2257 (50)
Moran v NFL Players, Inc., et al........................................2673 (52)
N.C. v P.F...........................................................................1705 (48)
Shoetan v Link, et al..........................................................2685 (50)
Tyler v DC..........................................................................2509 (50)
US v Dante Carpenter aka Cornell Swangin, et al.............1193 (49)
US v Harris..........................................................................429 (49)
Williams v Neill and Bynum...............................................2481 (51)
US COURT OF APPEALS FOR DC
Fabi Construction Co. Inc. v Secretary of Labor......................1 (55)
Hudson and Clayton v DC.................................................1041 (54)
Mills v DC...........................................................................1813 (55)
Potter v DC........................................................................1033 (55)
Pro Football, Inc. v Harjo....................................................1173 (56)
US v $6,976,934.65 plus interest.........................................281 (53)
US v Ashton........................................................................465 (53)
US v Blalock......................................................................1545 (52)
US v Coleman......................................................................209 (55)
US v Guillen.........................................................................929 (52)
US v Keleta..........................................................................249 (56)
US v Kelly............................................................................269 (54)
US v McCants......................................................................417 (53)
US v Turner..........................................................................145 (54)
US v Washington.................................................................937 (54)
US DISTRICT COURT FOR DC
US SUPREME COURT
US v Herring........................................................................237 (72)
Allen, et al v Schaefer, Sec. of Agriculture.........................1733 (56)
American Federation of Teachers, AFL-CIO, et al v Bullock..825 (62)
Arrington v US Park Police..................................................629 (64)
Becker v DC.......................................................................1665 (58)
Boardly v US Dept. of the Interior........................................645 (67)
Canales and Rivera v A.H.R.E., et al.....................................13 (64)
Casanova v Marathon Corp., et al.......................................809 (58)
Charlton v Donley...............................................................1062 (59)
Cooper, et al v Farmers New Century Ins. Co.......................53 (64)
Davis v DC Dep’t of Corrections........................................1305 (59)
Davis v Filip.........................................................................441 (69)
DC v Straus.........................................................................857 (66)
Demery v Montgomery Co., MD..........................................673 (66)
Doe v DC, et al....................................................................909 (59)
Ellis v Georgetown University Hospital..............................1474 (56)
Enten v DC........................................................................2713 (59)
Farris v Clinton.....................................................................841 (69)
Gibson-Michaels v Bair........................................................509 (69)
Gonzalez-Vera v Townley.....................................................493 (63)
Halcomb v Woods................................................................985 (60)
Hamilton v Geithner............................................................1157 (70)
Hamilton v Sanofi-Aventis U.S., Inc...................................1393 (68)
Hill v Geren, Sec. of the Army..............................................453 (62)
Hollister v Soetoro...............................................................537 (67)
Hose v US............................................................................745 (60)
Hughes v Abell...................................................................1637 (57)
Hunter Innovations Company v The Travellers
Indemnity Co. of Connecticut...............................................753 (60)
Hurt v DC Services and Offender Supervision Agency......1021 (70)
Kelly v Novastar, et al........................................................1725 (57)
Kline v Springer...................................................................957 (68)
Kormenedi/Gardner Partners v Surplus Acquisition
Venture, LLC.......................................................................817 (63)
Lindell v The Landis Corp. 401(k) Plan, et al....................1785 (60)
Lindsey v US.......................................................................917 (70)
Miller v Insulation Conrators, Inc.........................................881 (66)
Musgrove v DC Public Schools...........................................657 (68)
NASA Federal Credit Union v W. Jenkins Plumbing and
Heating Co., et al.................................................................865 (66)
Owens v DC.......................................................................1465 (62)
Palmer v GMAC Commercial Mortgage............................1457 (64)
Payne v DC..........................................................................573 (65)
Pearson v DC, et al............................................................1609 (63)
Pederson v Mills................................................................1653 (65)
Pharmaceutical Care Management Ass’n v DC...................681 (69)
Pigford and Brewington v Schafer........................................117 (60)
Pleitez v Carney...................................................................665 (57)
Roane, et al v Holder...........................................................873 (66)
Ross v Astrue....................................................................1597 (70)
Stewart v St. Elizabeth’s Hospital........................................185 (65)
Strong-Fisher v Lahood.....................................................1049 (67)
Sykes v Napolitano............................................................1497 (57)
Tabb v DC..........................................................................1673 (61)
Texas Border Coalition v Napolitano.................................1101 (71)
Thomas v National Legal Professional Associates, et al.....297 (57)
US v Alexsov......................................................................1073 (63)
US v Austin........................................................................1081 (65)
US v Garcia.......................................................................1681 (71)
US v Glover, et al.................................................................221 (62)
US v Hinckley.....................................................................1357 (61)
US v Irving...........................................................................261 (61)
US v Orloksi.......................................................................1081 (58)
Vreven v American Ass’n of Retired Persons......................705 (61)
Wells v Astrue, Comm’r of Social Security.........................1689 (71)
Williams v Chu, Sec. of Energy..........................................1757 (71)
Winstead v DC...................................................................1245 (58)
Winston & Strawn, LLP v Doley, et al................................2053 (72)
3
CASES LISTED BY JUDGE
Page numbers in this listing refer to the index page numbers
DC COURT OF APPEALS - page no. 5
Belson - 5
Oberly - 27
Blackburne-Rigsby - 6 Per Curiam - 29
Farrell - 7
Pryor - 31
Ferren - 8 Reid - 32
Fisher - 9
Ruiz - 35
Glickman - 13
Schwelb - 37
Iscoe - 17
Steadman - 37
Josey-Herring - 17
Terry - 39
King - 17
Thompson - 41
Kramer - 18
Wagner - 45
Nebeker - 26
Washington - 45
Newman - 26
DC SUPERIOR COURT - page no. 48
Byrd - 48
Christian - 49
Clark - 49
Cushenberry - 49
Duncan-Peters - 50
Kravitz - 50
Irving - 51
Retchin - 51
Ryan - 51
Zeldon - 52
US COURT OF APPEALS FOR DC - page no. 52
Garland - 52
Ginsburg - 52
Griffith - 53
Henderson - 54 Kavanaugh - 54
Randolph - 54
Rogers - 55
Sentelle - 55
Tatel - 56
US DISTRICT COURT FOR DC - page no. 56
Aycock - 56
Bates - 56
Collyer - 57
Facciola - 58
Friedman - 59
Hogan - 62
Huvelle - 62
Kay - 63
Kennedy - 63
Kollar-Kotelly - 64
Lamberth - 65
Leon - 65
Roberts - 66
Robertson - 67
Sullivan - 68
Urbina - 69
Walton - 69
US SUPREME COURT - page no. 72
4
Roberts - 72
DIGEST OF OPINIONS
DC COURT OF APPEALS
BELSON
Charlery v DC DCRA
D.C.C.A. No. 08-AA-78. Decided Apr. 30, 2009. Before Pryor, Kern and Belson, Sr. J.J., with Judge Belson writing for the Court. (Petition
for Review from the D.C. Office of Administrative Hearings). Richard S. Basile, Esq., on the brief for Petitioner. Peter J. Nickles, Acting
D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., Donna M. Murasky, Dep. D.C. Sol. Gen., and Catherine Ferrando, Asst. D.C. Attny. Gen.,
on the brief, for Respondent. DWLR page no. 969.
[Editor’s Note: Recent “Home Improvement Cases” appearing in these pages include: Newsome v. Gerachis, 108 D.W.L.R. 2353 (Dec.
16, 1980)(Kennedy, J.)(doctrine of in pari delicto does not preclude plaintiff homeowner from recovery of funds paid to unlicensed home
improvement contractor who deliberately disregarded the licensing requirement); Hanson v. EJP Assocs., PC, 122 D.W.L.R. 1669 (Aug.
22, 1994)(Kramer, J.)(architects are not required to be licensed as home improvement contractors in order to receive payment for work
performed); Alexander v. Campbell, 132 D.W.L.R. 177 (Jan. 27, 2004)(Goodbread, M.J.)(DC Home Improvement Regulations do not apply
to repairs to property used as residential Mental Health Facilities, which are commercial, not residential per those regulations); and Authentic
Home Improvements v. Mayo, 134 D.W.L.R. 2051 (Aug. 23, 2006)(Goodbread, M.J.)(Home Improvement license must already have been
issued and be in hand before a contractor can undertake work or receive advance payment for work on residential facilities).
HOME IMPROVEMENT CONTRACTS
FAILURE TO HAVE LICENSE IN ADVANCE VOIDS CONTRACT
In all events a home improvement contractor must have obtained a business license to perform such services prior to commencing them and
if no such license was in existence, impliedly the contract was void ab initio, and certainly it was void if any advance payment was received
before the work was completed. The formation of the contract outside the District of Columbia to do such work within this jurisdiction is no
defense to jurisdiction or to the licensure requirement.
Georgetown University v DC Dep’t of Employment Services
D.C.C.A. No. 07-AA-1258. Decided May 14, 2009. Before Blackburne-Rigsby and Thompson, J.J., and Belson Sr. J., with Judge Belson
writing for the Court. (Petition for Review of a Decision of the D.C. Office of Hearings and Adjudications Compensation Review Board).
Jeffrey W. Ochsman, Esq., with Todd S. Sapiro, Esq. on the brief, for Petitioner. Pastell Vann, Sr. Asst. D.C. Attny. Gen., with Peter J. Nickles,
Interim D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Donna M. Murasky, Dep. D.C. Sol. Gen., filed a statement in lieu of a brief for
Respondent. DWLR page no. 1125.
ADMINISTRATIVE LAW / EMPLOYMENT COMPENSATION
IDIOPATHIC FALLS / UNEXPLAINED FALL RULE / POSITIONAL RISK DOCTRINE
In the burden-shifting scheme under the Workers Compensation Act the employee must make an initial demonstration of both an injury and
a relationship between that injury and the employment before a presumption of compensability obtains. If the employer proffers substantial
evidence to rebut the presumption, then it drops out of the case entirely and the burden reverts to the claimant to prove entitlement to benefits
by the preponderance of the evidence. The Unexplained Fall Rule is not the same as the Idiopathic Fall Rule because the latter ascribes an
endemic condition peculiar to the individual as a cause in fact of the injury (for which the majority of jurisdictions do not allow compensation).
Where it cannot be shown that an employee’s injury is either directly associated with employment or is personal to the employee, the Court
applies the Positional Risk Doctrine, determining whether the injury would not have occurred “but for” the fact that conditions and obligations
of the employment placed claimant in a position where he suffered happenstance injury from being in the wrong place at the wrong time
due to some neutral force which is neither personal to him nor distinctly associated with the employment. In all events, however, a reviewing
court must be able confidently to ascertain from the record below the precise legal principles on which the agency relied and its underlying
factual determinations. Where the reasoning below is too perfunctory to warrant deference because the order lacks the necessary clarity
to show that the injury arose at all out of and in the course of his employment, the Court will remand the case for further detailed findings
within the WCA’s burden-shifting scheme.
Scott and Patterson v US
D.C.C.A. Nos. 05-CF-460, 05-CF-374. Decided July 9, 2009. Before Glickman and Kramer, J.J., and Belson, Sr. J., with Judge Belson
writing for the Court. (Hon. Wendell P. Gardner, Jr., Trial Judge). Shilpa S. Satoskar, D.C. Pub. Def. Serv., for Appellant Byron Scott. Mindy
A. Daniels, Esq., appointed by the Court, for Appellant Lloyd Patterson. John P. Gidez, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny.,
Roy W. McLeese III, and Steven B. Snyder, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 1505.
CRIMINAL LAW AND PROCEDURE
ASSAULT ON A POLICE OFFICER WHILE ARMED / MERGER OF ASSAULT COUNTS /
ADMISSIBILITY OF CORROBORATIVE TELEPHONE RECORDS
5
While a vital element of the offense of Assault on a Police Officer is that the defendant knew or should have known that the victim was a
police officer, circumstances surrounding the event may provide a sufficient basis for a jury to so find. Various facts stemming from a chain
of events during a continuing incident may provide the basis for separate types or counts of assault without the necessity of merger of offenses. Where failure to admit evidence that substantially corroborates a defendant’s theory of defense is such that it cannot be said with
fair assurance that the exclusion did not adversely impact Fifth and Sixth Amendment rights, thus depriving him of a meaningful opportunity
to present his defense, a reversal is in order.
US v Thomas and Vincent
D.C.C.A. No. 08-CM-66 & -94. Decided Dec. 10, 2009. Before Fisher and Oberly, J.J., and Belson, Sr. J., with Judge Belson writing for
the Court. (Hon. Zinora Mitchell-Rankin, Trial Judge). Aaron E. Price, Esq. for Appellant Robert S. Thomas. Raymond J. Rigat, Esq. for
Appellant Reginald Vincent. Kristina L. Ament, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III and Mary B. McCord,
Asst. U.S. Attnys. on the brief, for Appellee. DWLR page no. 2645.
DESTRUCTION OF PROPERTY / TRAFFIC ENFORCEMENT BOOT DEVICE
A “boot” is a device designed to be locked onto one of the wheels of a parked vehicle in order to immobilize it based on either a current parking violation or due to a backlog of unpaid tickets. Unauthorized removal of the device is a separate violation and any damage or injury to it
in attempting to do so may be the subject of a misdemeanor charge of Malicious Destruction of Property. This constitutes anything that is a
detriment to, or violation of the character or value” of the property. The “malice” element embraces acts taken without justification, excuse,
or recognized mitigation which also show either an actual intent to cause harm to the property or acts that are in themselves wanton and
willful perpetrated with awareness of a plain and strong likelihood that harm may result.
[Editor’s Note: The vehicle immobilization device discussed in this case, interestingly enough, was invented in 1944 by Frank Marugg, a
violinist with the Denver Symphony Orchestra, who tinkered with inventions on the side (hence it is also known as the “Denver Boot”). It was
prompted by his friends on the Denver Police Department to avoid the necessity of towing vehicles and the ensuing lawsuits for damage,
vandalism, and theft on the department’s storage lot. Marugg opened a company to manufacture the devices and they went into widespread
public use starting in 1953. On another interesting collateral note, the Marugg Family in Austria has been making scythes – the utensil
always depicted with the Grim Reaper since 1540. The Reaper came for Frank Marugg in 1973, when he died at age 86, still in booted
Denver, a rich, albeit vicariously detested, man.]
BLACKBURNE-RIGSBY
Cunningham v US
D.C.C.A. No. 06-CF-595. Decided June 25, 2009. Before Kramer, Fisher, and Blackburne-Rigsby, J.J., with Judge Blackburne-Rigsby
writing for the Court. (Hon. Janette J. Clark, Trial Judge). James E. Drew, Esq., appointed by the Court, for Appellant. Anne Y. Park, Asst.
U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, and Lisa A. Schertler, Asst. U.S. Attnys. on the brief, for the Appellee.
DWLR page no. 1413.
POLICE OFFICER UNDER INVESTIGATION BY MPD DEEMED SUBJECT TO LEWIS DISCLOSURE
In a criminal trial, the potential bias of a witness to curry favor with one side or the other is always relevant and is subject to a liberalized
threshold and close scrutiny on appeal for preclusion of such testimony for which a valid foundation has been laid. Where the expiation of
such bias as to a key Government witness comes before the Trial Court entirely on the Prosecution’s representations, the Court should be
skeptical of such a proffer and allow at least limited inquiry.
Obiazor v US
D.C.C.A. No. 06-CF-100. Jan. 29, 2009. Before Glickman, Blackburne-Rigsby, J.J., and Farrell, Sr. J., with Judge Blackburne-Rigsby writing
for the Court. (Hon. Zinora M. Mitchell-Rankin, Trial Judge). O. Dean Sanderford, D.C. Pub. Def. Serv., with James Klein and Samia Fam,
D.C. Pub. Def. Serv., on the brief, for Appellant. Suzanne Nyland, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III,
and Florence Pan, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 545.
CROSS-EXAMINATION OF CHILD WITNESS AS TO POTENTIAL BIAS AND RECENT FABRICATION
If there is any arguable theory on which to do so, a complaining witness, including a child in an abuse case, may be subject to crossexamination as to bias. In an analogy to a “signature crime,” where two or more such complaints are substantially similar in nature but
involve different accuseds, the complainant may be cross-examined as to fabrication. The motivation of a child witness to fabricate such
accusations is a matter requiring the testimony of a competent expert witness.
Richard, et al v McGreevy
D.C.C.A. Nos. 06-CV-1056, -1057 & 07-PR-1411. Initially decided July 24, 2008; re-issued as an Amended Opinion Oct. 15, 2009. Before
Fisher, Blackburne-Rigsby, and Thompson, J.J, with Judge Blackburne-Rigsby writing for the Court. (Hon. Geoffrey M. Alprin, Civil Trial
Judge; Hon. Rhonda Reid-Winston, Probate Judge). Henry St. J. FitzGerald, Esq., with Dana F. Richard, Esq., on the brief, for Appellant.
Mark A. Binstock, Esq., for Appellee. DWLR page no. 2545.
PROBATE LAW
6
ACTUAL KNOWLEDGE OF CLAIMS / VACATING LIS PENDENS / DEPRIVATION OF JURISDICTION
DURING APPEAL
One of the underlying purposes of D.C. probate law is to protect local creditors of decedents’ estates. It therefore requires that any Personal
Representative in a decedent’s estate case in the Probate Division must consider all valid claims about which the PR has actual knowledge,
even if those claims have not technically complied with required formalities. A Trial Court has the authority to order the vacating, canceling,
and releasing of Lis Pendens filed in the Office of the D.C. Recorder of Deeds and such an order is appealable under the Collateral Order
Doctrine. Once a case has been officially appealed, however, a Trial Court is deprived of authority to make further substantive rulings in
the matter.
WMATA v Barksdale-Showell
D.C.C.A. Nos. 06-CV 1106 & -1178. Decided Feb. 19, 2009. Before Washington, C.J., Blackburne-Rigsby, J., and Terry, Sr. J., with Judge
Blackburne-Rigsby writing for the Court. (Hon. John M. Campbell, Motions Judge; Hon. Robert E. Morin, Trial Judge). Bruce Heppen,
Esq., with Carol O’Keefe, Esq., Mark Sullivan, Esq., and Gerard Stief, Esq., on the brief, for Appellant/Cross-Appellee. Jack Gold, Esq., with
Lawrence Lapidus, Esq., and Douglas Sparks, Esq. on the brief, for Appellee/Cross-Appellant. DWLR page no. 589.
TORT LAW
WMATA / PROPRIETARY VS. GOVERNMENAL LIABILITY AND GENERAL VS. SPECIFIC HAZARDOUS
CONDITIONS DISTINGUISHED
WMATA was established by an Interstate Compact which imbues it with certain aspects of sovereign immunity from tort suits. In general,
functions which are essentially “proprietary” in nature allow of suit, while those which involve discretionary policy are “governmental” in nature
and do not. When an action involves a significant degree of discretion, such as how to deal with the effect of bad weather conditions on the
interior facilities of the system, it falls into the governmental immunity category because it balances various public policy interests in such
an enterprise. Under those circumstances an action for negligent maintenance of facilities will not lie. When, however, it is arguable that
the enterprise had superior knowledge of how a general hazard affected the operation of its facilities, such as escalators, a factual issue as
to negligent failure to warn arises, to be determined by a jury.
FARRELL
Ideal Academy Public Charter School v Bernola
D.C.C.A. 07-AA-1224. Decided June 11, 2009. Before Ruiz and Kramer, J.J. and Ferrell, Sr. J., with Judge Farrell writing for the Court.
(Petition for Review of a Decision of the Office of Administrative Hearings). Curtis A. Boykin, Esq. and Monica O’Connell, Esq., filed a
brief for Petitioner. Karen M. Bernola, Pro Se Respondent. Peter J. Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., Donna M.
Murasky, Dept. D.C. Sol. Gen., and Michael A. Milwee, Sr. D.C. Attny. Gen., filed a supplemental memorandum on behalf of the D.C. Dept.
of Employments Services. DWLR page no. 1261.
UNEMPLOYMENT COMPENSATION LAW
“UNEMPLOYED” DEFINED
For purposes of receiving unemployment compensation, a person is deemed “unemployed” for any week during which he performs no service
or with respect to which no remuneration is payable for personal services. The basic policy underlying the Unemployment Compensation
Act is the preference for compensation through employment rather than welfare compensation. The term of employment compensation
must be completed before unemployment compensation may begin.
McNair Builders, Inc. v 1629 16th Street, LLC
D.C.C.A. No. 07-CV-1307. Decided Apr. 2, 2009. Before Ruiz and Glickman, J.J. and Farrell, Sr. J., with Judge Farrell writing for the Court.
(Hon. Judith E. Retchin, Trial Judge). John P. Coyle, Esq., with Abigail C. Briggerman, Esq. on the brief, for Appellant. Johnny R. Galloway,
Esq., for Appellee. DWLR page no. 761.
MECHANIC’S LIEN / “BLANKET LIENS”
ENFORCEMENT OF SAME / LIS PENDENS
The mechanic’s lien statute is to be narrowly construed. It is well-settled that compliance with the statutory requirements is necessary in order
to secure an enforceable lien. If the notice of the lien designates an incorrect owner or property description, it is subject to a defendant’s
being granted summary judgment, which is fatal to a companion lis pendens, inasmuch as there is no longer any pending suit to support a
lien on the property. Blanket liens on condominium agglomerations are impermissible. There is a difference between the right to acquire a
lien and the steps necessary to enforce it. If the latter are not in conformity with the statute, the lien is void.
Sims v US
D.C.C.A. No. 06-CF-137. Decided Dec. 31, 2008. Before Kramer, J., Farrell, Ret. J., and King Sr. J., with Judge Farrell writing for the
Court. (Hon. Erik P. Christian, Trial Judge). Ian A. Williams on the brief for Appellant. James Klein and Alice Wang, D.C. Pub. Def. Serv.,
on the Amicus Curiae brief filed on behalf of Appellant. Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Elizabeth Trosman, Florence Pan,
Perham Gorji, and John P. Gidez, Asst. U.S. Attnys, on the brief for Appellees. DWLR page no. 109.
SECOND AMENDMENT DEFENSE REJECTED ON CARRYING A PISTOL CONVICTION
7
The holding of the U.S. Supreme Court in Heller v. District of Columbia (2008) striking down the District’s general prohibition against having
a handgun in the home for self-protection does not provide a defense to the charge of carrying a pistol without a license outside the home,
especially when there is no indication that it was being used for self-defense or that the accused had ever sought to obtain a license to
carry.
Tetaz, et al v DC
D.C.C.A. Nos. 07-CT-140-41, -262, -271-73, -284-85, -410 & -434. Decided July 30, 2009. Before Ruiz and Kramer, J.J., and Farrell, Sr.
J., with Judge Farrell writing for the Court and an opinion dissenting in part by Judge Ruiz. (Hon. Rufus G. King, III, Trial Judge) Mark L.
Goldstone, Esq., appointed by the Court, for Appellants. Max Obuszewski and Johnny Barber each filed a brief pro se. Sidney L. Bixler,
Asst. D.C. Attny. Gen., with Peter J. Nickles, Acting D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Rosalyn Calbert Groce, Dep. D.C.
Sol. Gen., on the brief, for Appellee. DWLR page no. 1941.
UNLAWFUL ASSEMBLY, DISORDERLY CONDUCT, UNLAWFULLY CROSSING POLICE LINES, INCOMMODING PROTESTORS’ BLOCKING OF ENTRANCE TO CONGRESSIONAL OFFICE BUILDINGS HELD
NOT TO IMPLICATE FIRST AMENDMENT PROTECTIONS
The House and Senate Office Buildings of the U.S. Congress are quintessentially facilities wherein congressional members and their staffs
carry out the duties of office and in which they are entitled to transact business in an orderly manner without interference. Preventing disruption of the orderly conduct of the legislature’s business is a substantial governmental interest. The Capitol Police may enforce, without
First Amendment objection, the statutory prohibition against parading, demonstrating, or picketing, inside of, and in close proximity to, these
facilities. The same is true of the Capitol Building itself in circumstances wherein emergency decisions as to the safety of the structure and
its legitimate occupants must be left to the reasonable judgment of the officers on the scene. In disorderly conduct prosecutions under
these circumstances, the Government is not obligated to prove that demonstrators were disorderly or that their actions threatened to cause
a breach of the peace. Purposely blocking or impeding entry into a public building enjoys no First Amendment protection because such a
restriction imposes no burden on speech and the prospect of breach of the peace has no relevance to the deliberate obstructing of entry
to a public facility.
Williams and Bryant v US
D.C.C.A. Nos. 06-CF-1586 & -1587. Decided Feb. 26, 2009. Before Washington, C.J., Kramer, J., and Farrell, Sr. J., with Judge Farrell
writing for the Court. (Hon. Harold L. Cushenberry, Trial Judge). Richard S. Stolker, Esq. for Appellant Williams. Christopher Kemmitt,
D.C. Pub. Def. Serv., with James Klein and Samia Fam, PDS, on the brief, for Appellant Bryant. J.P. Cooney, Asst. U.S. Attny., with Jeffrey
A. Taylor, U.S. Attny., Roy W. McLeese III, Mary B. McCord, and Sharon K. Donovan, Asst. U.S. Attnys., on the brief, for Appellee. DWLR
page no. 501.
ADMISSION OF DEA-7 REPORT WITHOUT CHEMIST’S TESTIMONY IS FATAL TO CONVICTION FOR
ACTUAL DRUG DISTRIBUTION OF CONTROLLED SUBSTANCE, BUT HARMLESS ERROR AS TO ATTEMPTED DISTRIBUTION
Where two Defendants are tried on a common nucleus of operative fact and only one lodges a timely constitutional objection and argument
that applies equally to both cases, the issue will ordinarily be deemed preserved for appeal for both. A conviction for actual distribution
of a controlled substance which relied entirely on the unsupported conclusion in the DEA-7 form to establish that it was a controlled drug,
must be vacated. That form, however, is irrelevant for a conviction on attempted distribution as a lesser-included charge. In that case,
the Government need not prove that the substance is the same as that charged in the greater offense, although it must establish that the
Defendant had the requisite specific intent. This may be accomplished where the illegal nature of the substance could be inferred from a
transaction during which the defendant had manifested the intent to sell a particular drug. Although, from an objective standpoint, such actions may also accompany the intent to sell counterfeit drugs, that possibility may not be established based on mere conjecture, but must
be supported by some factual basis in the record.
FERREN
Biratu v BT Vermont Avenue, LLC
D.C.C.A. No. 07-CV-1300. Decided Dec. 18, 2008. Before Ferren, Belson, and Schwelb, Sr. J.J., with Judge Ferren writing for the Court.
(Hon. Lynn Leibovitz, Trial Judge). Eric S. Wiener, Esq., on the brief for Appellant. Jacquelyn M. Kramer, Esq. on the brief for Appellee.
DWLR page no. 33.
WORKERS COMPENSATION LAW
SIX-MONTH LIMITATION ON FILING THIRD-PARTY CIVIL SUIT
A lump-sum settlement during the administrative process in a workers compensation claim constitutes a complete and final “award in compensation” under the statute. Merely accepting the award starts the statutory six-month limitations period within which any civil suit must
be filed against a third party.
Duvall v US
D.C.C.A. No. 06-CM-21. Decided July 16, 2009. Before Ferren, Belson, and Nebeker, Sr. J.J., with Judge Ferren writing for the Court. (Hon.
Robert I. Richter, Trial Judge). Charles H. Fitzpatrick, Esq., appointed by the Court, on the brief for Appellant. Jeffrey A. Taylor, U.S. Attny.,
8
with Roy W. McLeese III, and Michael T. Ambrosino, Asst. U.S. Attnys., on the brief for Appellee. DWLR page no. 1521.
[Editor’s Note. Recent cases published in these pages addressing the “testimonial” nature of documentation such as a DEA-7 form and
requiring the testimony of the official generating same, include the following: Haywood v. United States, 137 D.W.L.R. 1113 (June 1, 2009)
(distinguishing between the standards for a missing witness vs. a missing evidence arguments) and Millard v. United States, 137 D.W.L.R.
621 (March 25, 2009)(distinguishing between “testimonial” and “non-testimonial” documents regarding DEA-7 chemist reports and MPD
certificates of no record in pistol cases).]
REVERSAL REQUIRED WHERE CONVICTION DEPENDED SOLELY UPON A DEA REPORT THAT THE
DRUG IN QUESTION WAS A CONTROLLED SUBSTANCE, ABSENT THE TESTIMONY OF THE CHEMIST
WHO CONDUCTED THE TEST / PROCEDURAL VS. STRUCTURAL DEFECTS DISTINGUISHED
Even where an error at trial had been of constitutional proportions, depending upon various factors in a given case it does not necessarily
subject a conviction to automatic reversal. A determination must still be made as to whether the error was “procedural” in nature, affecting
only the trial process itself, which may be deemed “harmless error” not requiring reversal, or whether it constitutes a “structural” defect in
the entire proceeding, which demands reversal without review for harmlessness. Although it is the Government’s obligation in an instance
of constitutional error to show that such an error was “harmless beyond a reasonable doubt,” it is an appellant’s obligation under the plainerror rubric to show that it adversely affected his substantial rights. The Government may establish that a substance is an illegal drug by
means of circumstantial evidence but a positive field test alone insufficient. Where, however, a DEA-7 form introduced without the testimony
of the official who produced it attesting to the nature of the substance at issue so overshadows any other discriminating evaluation of the
circumstantial evidence by a jury, a reviewing Court may not be in a position to conclude that the Defendant’s substantial rights had not
been adversely affected thereby.
Wagley v Wagley
D.C.C.A. No. 07-FM-1184. Decided May 14, 2009. Before Ruiz and Kramer, J.J., and Ferren, Sr. J., with Judge Ferren writing for the Court.
(Hon. Judith N. Macaluso, Trial Judge). Gregory R. Nugent, Esq. for Appellant. Jane Moretz Edmisten, Esq. for Appellee. DWLR page
no. 1089.
FAMILY LAW / CHILD SUPPORT
CIVIL CONTEMPT AVAILABLE, INCLUDING IMPRISONMENT, TO ENFORCE CHILD SUPPORT ARREARAGES EVEN AFTER CHILD REACHES MAJORITY / BURDEN OF PROOF ON RESPONDENT TO SHOW
INABILITY TO PAY IN ORDER TO AVOID INCARCERATION FOR CIVIL CONTEMPT
Whether to grant a continuance lies within the sound discretion of the trial court and repeated requests, without specific or sufficient evidence,
may be denied. Under current District of Columbia law, a judgment for child support arrearages is enforceable by contempt proceedings
held after the child has attained age twenty-one. Were this not the case, avoidance of responsibility and flouting of court orders would be
rewarded. When a child attains majority with arrearages still due, the support obligation does not cease; rather, it remains unfulfilled. The
burden is on the contemnor to present the trial court with competent evidence of inability to pay the amount set by the court, or a reasonable
excuse for non-performance, and when no valid reason for default is offered, the trial court may enforce compliance by imprisonment. The
defense of laches requires a showing that the movant has engaged in unreasonable and unexplained delay in the pursuit of remedies and
that that the respondent has suffered prejudice due to said delay.
FISHER
Barrett v Covington & Burling
D.C.C.A. No. 07-CV-1301. Decided Sept. 10, 2009. Before Reid, Fisher, and Blackburne-Rigsby, J.J., with Judge Fisher writing for the
Court. (Hon. Melvin R. Wright, Trial Judge). Heather G. White, Esq., with George M. Chuzi, Esq. on the brief, for the Appellant. James E.
McCollum, Jr., Esq. for the Appellee. DWLR page no. 1969.
D.C. HUMAN RIGHTS ACT
REFUSAL TO MAKE REASONABLE ACCOMMODATIONS AND HOSTILE
WORK ENVIRONMENT DISTINGUISHED / STATUTE OF LIMITATIONS
In a hostile work environment claim, each act complained of, even considered as a continuing pattern, must fall within the statutory limitations
period. In a claim for refusal to make a reasonable work accommodation, however, the continuing violation doctrine does not relate back
and recapture events. A notification of termination must be unequivocal in nature and without such notice an employee may not presume
that s/he has been fired simply because of extraneous actions.
Brandywine Apartments, LLC v McCaster
D.C.C.A. No. 06-CV-1181 and 07-CV-699. Decided Jan. 29, 2009. Before Ruiz and Fisher, J.J., and Farrell, Sr. J., with Judge Fisher writing
for the Court. (Hon. Anna Blackburne-Rigsby, Trial Judge and Hon. Jennifer Anderson, Post-Trial Motions Judge). Todd Kelting, Esq. for
Appellant. William C. Johnson, Jr., for Appellee. DWLR page no. 353.
D.C. HUMAN RIGHTS ACT / D.C. CONSUMER PROTECTION PROCEDURES ACT
REQUIREMENT OF ACTUAL ANIMUS / STATUTORY CAP FOR AWARD
To support an allegation of discrimination under the D.C. Human Rights Act in rental accommodations, a plaintiff must prove that she is a
9
member of a protected class and that the defendant acted intentionally and purposefully so as to demonstrate sufficient animus for discrimination. That evidence may be based on the statements and conduct of the defendant or may be inferred from collateral evidence as
to how the defendant treated others. The absence of either, however, precludes a judgment for violation of this section of the statute. For
these same purposes, the award for violating the D.C. Consumer Protection Procedures Act is $1,500 per incident. Attorney’s fees, subject
to discretionary adjustment by the Trial Court, may be awarded to a prevailing plaintiff under both statutes.
Campbell v Noble
D.C.C.A. No. 06-CV-1430. Decided Dec. 18, 2008. Before Washington, C.J., Fisher, J., and King, Sr. J., with Judge Fisher writing for the Court.
(Hon. Melvin R. Wright, Trial Judge). Jay S. Marks, Esq. for Appellants. Richard E. Schimel, Esq. for Appellee. DWLR page no. 41.
[Editor’s Note: Cases on canine law appearing in the DWLR and not found elsewhere include the following: Pederson v. Worth, 132
D.W.L.R. 189 (D.C. Super. Ct., Jan. 28, 2004)(Goodbread, M.J.)(no liability found on first-time misconduct of dog); Martinage v. Shapiro,
125 D.W.L.R. 2001 (D.C. Super. Ct., Oct. 10, 1997)(Zeldon, J.)(suit where dog leapt from parked truck and attacked plaintiff not excluded
from owner’s vehicle insurance policy); Williams v. Redwood, 108 D.W.L.R. 277 (D.C. Super. Ct., Feb. 14, 1980)(Schwelb, J.)(liability found
for bite by unleashed dog); Saletti v. Tuck, 107 D.W.L.R. 2107 (D.C. Super. Ct., Nov. 30, 1979)(Bowers, J.)(implied warranty of fitness held
to apply to sale of dog); Baytop v. Deanwood Auto Shop, 101 D.W.L.R. 427 (D.C. Super. Ct., Mar. 7, 1973)(Ketcham, J.)(customer bitten by
watchdog not required to prove prior acts); and Smith v. Johnson, 100 D.W.L.R. 2129 (D.C. Super. Ct., Oct. 27, 1972)(Sorrell, J.)(defense
of retaliatory eviction not available where it was because of unauthorized dog on the premises).]
CANINE LAW
DISTINGUISHING BETWEEN LANDLORD AND DOG OWNER LIABILITY
A property owner acting in the role of a landlord who has leased commercial premises to a tenant, in the process turning over complete to
same, has no further duty or liability for subsequently-developed dangerous conditions or negligence thereon, even if he becomes aware of
their existence. Where the dangerous condition is the presence and depredation of vicious and aggressive dogs or other such animals but
the lease does not address the issue, the landlord has no grounds for the removal of either the animals or the tenant. Notice that a tenant is
keeping vicious dogs on the premises is not sufficient to hold a landlord liable for any consequences. In such matters, the Court of Appeals
will not legislate by judicial fiat, especially where the legislative branch has already considered the relief sought and declined to provide it.
Davis v US
D.C.C.A. No. 08-CM-388. Decided Dec. 17, 2009. Before Fisher and Thompson, J.J., and Belson, Sr. J., with Judge Fisher writing for the
Court. (Hon. Ann O’Regan Keary, Trail Judge). Diane Bratter, Esq. for Appellant. April E. Fearnley, Asst. U.S. Attny., with Jeffrey A. Taylor,
U.S. Attny., Roy W. McLeese III, and Florence Pan, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2705.
[Editor’s Note: Though not discussed in this opinion, an “intoxication defense” might have been a factor in this case, given the fact that the
Defendant had stated that she had consumed 48 ounces of beer the evening of the offense. Assault with a Dangerous Weapon, although a
felony, is, like all assaults, a general intent crime and therefore not subject to an intoxication defense. Possession of a Prohibited Weapon,
however, is a specific intent crime, see SEQ CHAPTER \h \r 1White v. U.S., 613 A.2d 869, 872 (D.C. 1992)(“‘the defendant possessed a
knife and ... at the time he possessed the knife he had the specific intent to use it unlawfully against ... another person’”) and would have
allowed of an intoxication defense. This, of course, would have applied in either a bench trial or a jury trial, but it would more likely have had
a better chance of success before a jury, which was obviated here due to the “contributory negligence” of all involved.].
SIMPLE ASSAULT / POSSESSION OF A PROHIBITED WEAPON / JURY DEMAND
Under the Misdemeanor Jury Trial Act of 2002, when a non-jury demandable offense is tried together with a jury-demandable offense, both
charges must be tried before a jury. This right, however, may be forfeited if it is not timely asserted.
Dyer v Bilaal and Bilaal v Abell
D.C.C.A. Nos. 07-CV-1057; 08-CV-23; O8-CV-1562; & 09-CV-76. Decided November 12, 2009. Consolidated appeals before Glickman
and Fisher, J.J., and Farrell, Sr. J., with Judge Fisher writing for the Court. (Hon. Gerald I. Fisher, Trial Judge). Gregory M. Fisher, Esq. for
Appellant Dennis Dyer in No. 07-CV-1057. Dominic F. Parella, Esq., with Sten A. Jensen, Esq., Jeffrey D. Pariser, Esq., and Jake M. Shields,
Esq. on the brief, for Appellees in 07-CV-1057 and Appellants in No 08-CV-23. Lydia Auzoux, Esq., with David H. Cox, Esq. on the brief, for
Appellees Vincent Abell, Modern Management Co., and Marta Bartola in 08-CV-23. DWLR page no. 2449.
LAW OF CONTRACTS / SETTLEMENT AGREEMENTS
SETTLEMENT AGREEMENTS / AMBIGUITY / PAYMENT “IN FULL” / INTEGRATION CLAUSE / WAIVER
This jurisdiction relies on the objective law of contracts, meaning that the language of a written agreement will be given its plain meaning
governing the intent of the parties, regardless of what they subsequently come to believe, unless the language not susceptible to a clear
and definite understanding or there is fraud, duress or mutual mistake. In order to be binding, the terms of a contract need not be fixed
and complete, and even an agreement that lacks some material terms may still be enforceable. Even where such language is deemed
ambiguous it will be interpreted according to its plain meaning based on what a reasonable person in the position of the parties would have
thought it meant at the time. In such an instance the language used will be construed strongly against the drafter. Whether a document is an
enforceable contract and whether it is ambiguous are questions of law that will be reviewed de novo on appeal. Even where overly broad,
language of release and waiver may still be enforced.
10
Giordano v Sherwood
D.C.C.A. No. 05-CV -651. Decided Apr. 2, 2009. Before Reid and Fisher, J.J., and Terry, Sr. J., with Judge Fisher writing for the Court.
(Hon. Mary A. Gooden Terrell, Trial Judge). Andrew H. Baida, Esq., with Steven A. Hamilton, Esq. and Karen S. Karlin, Esq. on the brief,
for Appellant. Martin Trpis, Esq. for Appellee. DWLR page no. 769.
MEDICAL MALPRACTICE / NEGLIGENCE
CAUSATION / PERMISSIBLE INFERENCE vs. SPECULATION / “MORE LIKELY THAN NOT” STANDARD
The plaintiff in a medical malpractice suit has the burden of showing the applicable standard of care and proving a causal breach thereof.
Because there is great variety of infections and complications that might stem from surgery, despite all precautions and skill in standard
medical treatment, the record must contain evidence showing a basis in medicine or in common experience to warrant any inference of
negligent malpractice. Such evidence must be established by expert testimony to avoid a jury verdict based on mere conjecture or speculation; even an expert’s testimony may not be based on these factors, because for these purposes educated speculation is still speculation.
Neither an expert witness nor a jury may rely upon these concepts in arriving at a conclusion. Rather, a fact-based conclusion must lead a
fact finder to reason that a result “more likely than not” stemmed from a cognizable causation, based upon a reasonable degree of medical
certainty. Although it is likewise often difficult to discern the boundary that separates the realm of permissible inference from that of forbidden speculation, a judgment that was based in part on such evidence must be reversed.
Gomez and The 933 L Street Tenants’ Ass’n v Independence Management of Deleware, Inc.
D.C.C.A. Nos. 05-CV-1487-99 and 05-CV-1536-39. Decided Mar. 26, 2009. Before Kramer and Fisher, J.J., and Belson, Sr. J., with Judge
Fisher writing for the Court. Jonathan K. Tycko, Esq., for Appellants Kathleen Hartnett and Steven A. Skalet, with Maria Gomez, Esq. on
the brief for Maria Gomez, et al., and Steven A. Skalet, Esq., Sandi Farrell, Esq., and Hassan A. Zavareei, Esq., on the brief for The 933 L
St. Tenants’ Ass’n. Richard W. Luchs, Esq., with Gregory T. DuMont, Esq., on the brief, for Appellees. Barbara McDowell, Esq. and Julie
H. Becker, Esq., Legal Aid Society for the District of Columbia, Patricia Mullahy Fugere, Esq., Antonia K. Fasanelli, Esq., and Amber W.
Harding, Esq., Washington Legal Clinic for the Homeless, Vytas V. Vergeer, Esq. and Rebecca Lindhurst, Esq., Bread for the City, and David
Reiser, Esq., filed a brief as Amici Curiae, supporting the claims of Maria Gomez, et al. DWLR page no. 897.
RENTAL HOUSING CONVERSION AND SALE ACT
ATTEMPTED CIRCUMVENTION OF DUTY TO MAKE FIRST OFFER OF SALE TO EXISTING TENANTS
The Rental Housing Conversion and Sale Act requires that before an owner can sell units in a multi-tenant dwelling the current tenants
therein must be given an opportunity to purchase their own unit at a price and on terms which represent a bona fide offer of sale. Such
a sale may be distinguished from a “special interest” in that a sale is defined as involving a contract whereby real property is transferred
from one party to another for a consideration of value and upon procedures which must be completed within a year’s time, implying the
passage of the general absolute title, whereas a special interest conveys something less than complete ownership. By the same token,
title may change under a “restructuring” for tax, estate planning, limiting liability, or general property management without triggering any
obligation to involve the tenants. The Consumer Protection Procedures Act does not apply to this type of transaction because the Rental
Housing Conversion and Sale Act has its own enforcement procedures. Retaliatory eviction is an affirmative defense in which the tenant
enjoys a statutory presumption once facts are adduced that show adverse reaction by an owner, even if those acts are otherwise legal,
and once that presumption obtains, the owner has the burden of going forward to rebut that presumption which must be done by clear and
convincing evidence. Thus, the tenant is not obligated to establish a prima facie case but enjoys the benefit of the presumption’s ripening
automatically into a conclusion of retaliation. Ordinarily, the claim of a retaliatory motive is a question of fact and thus may not be resolved
by summary judgment.
Hooks v US
D.C.C.A. No. 08-CM-426. Decided Aug. 13, 2009. Before Ruiz, Fisher, and Blackburne-Rigsby, J.J., with Judge Fisher writing for the Court.
Enid Hinckes, Esq., appointed by the Court, for Appellant. Shivaprasad Nagaraj, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W.
McLeese III, Elizabeth Trosman, and Jin Y. Park, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 1793.
KNOWLEDGE THAT A CPO HAS BEEN ISSUED IS A NECESSARY PRE-REQUSITE TO A CONVICTION
FOR KNOWINGLY VIOLATING SAME
In order to prove criminal contempt for the violation of a court order, the Government must prove beyond a reasonable doubt that the defendant knew that the order had issued in the first place.
Howard v US
D.C.C.A. No. 08-CM-317. Decided Mar. 5, 2009. Before Fisher and Thompson, J.J., and Pryor, Sr. J., with Judge Fisher writing for the
Court. (Hon. Bruce D. Beaudin, Trial Judge). Kyle A. McGonigal, Esq., for Appellant. Mervin A. Bourne, Jr., Asst. U.S. Attny., with Jeffrey
A. Taylor, U.S. Attny., Roy W. McLeese III, Thomas J. Tourish, Jr., and John T. Battaglia, Asst. U.S. Attnys., on the brief, for Appellee. DWLR
page no. 565.
ASSAULT ON POLICE OFFICER REQUIRES “ACTIVE AND OPPOSITIONAL” INTERFERENCE
Conviction for Assault on a Police Officer requires “active and oppositional” inference with lawful police duties, not merely passive failure
to cooperate with police instructions.
11
Morris v US EPA
D.C.C.A. No. 07-AA-654. Decided July 9, 2009. Before Washington, C.J., Fisher, J., and Steadman, Sr. J., with Judge Fisher writing for
the Court. (Petition for Review of a Decision of the Office of Administrative Hearings). Theodore S. Allison, Esq., for Petitioner. Brian T.
Kehoe, Spec. Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., R. Craig Lawrence, Asst. U.S. Attny., and Cindy S. Owens, Spec. Asst.
U.S. Attny., for Respondent. DWLR page no. 1681.
[Editor’s Note: Recently The DWLR published the ruling of the D.C. Court of Appeals in Larry v. National Rehabilitation Hospital, 137
D.W.L.R. 1337 (June 26, 2009), to which the Court adverted in this case, wherein the ruling was that “gross misconduct” must be supported
by “substantial evidence.”].
UNEMPLOYMENT COMPENSATION LAW
NEITHER EXTENSIVE ABSENCES NOR REPEATED TARDINESS, WITHOUT MORE, QUALIFIES AS “GROSS
MISCONDUCT” JUSTIFYING TERMINATION OF GOVERNMENT EMPLOYMENT AND RESULTANT DENIAL
OF UNEMPLOYMENT BENEFITS
The Court of Appeals’ review of a decision by an ALJ in the D.C. Office of Administrative Hearings is limited to making sure that the ALJ’s
conclusions flow rationally from the findings of fact supported by substantial evidence on the record as a whole and are in conformity with the
applicable law. If, in this course, an ALJ fails to make a finding on a material, contested issue of fact, the Court cannot fill the gap by making
its own determination from the record, but must remand the case for findings on that issue. In the realm of unemployment compensation,
two termini govern an employee’s obligations and benefits. The first is that attendance at work is an obligation which every employee owes
to his or her employer. The second is that a discharged employee who satisfies the basic requirements of the unemployment compensation
statutes is presumed to be eligible for benefits. In an applicable case where the employer is so claiming, the D.C. unemployment compensation structure places the burden of proof on the employer to show by a preponderance of the evidence that the employee’s termination was
justified by “gross misconduct,” meaning an act which deliberately or willfully violates the employer’s rules or interests, shows a repeated
disregard for the employee’s obligation to the employer, or disregards standards of behavior which an employer has the right to expect. The
key element to proving misconduct is a showing that the employee’s actions were “willful and deliberate.” In countering both the specific
factor of excessive absences and the more general determination of whether they may constitute gross misconduct, the employee may show
that illness or other determinants beyond his or her control – thus vitiating the willful and deliberate requirement – caused the absences
which, in turn, could not constitute gross misconduct justifying termination and the denial of unemployment benefits. The fact of absences
or tardiness alone cannot suffice as proof of gross misconduct without considering the causation for such conduct because genuine illness
which prevents an employee from coming to work negates the willfulness and deliberateness of her absenteeism, thereby preventing a
finding of gross misconduct based on willfulness.
Schoonover v Chavous, et al
D.C.C.A. No. 06-CV-213. Decided July 2, 2009. Before Reid, Fisher, and Blackburne-Rigsby, J.J., with Judge Fisher writing for the Court.
(Hon. Stephanie Duncan-Peters, Trial Judge). Alfred F. Belcuore, Esq. for Appellant. Marc Fiedler, Esq., with William P. Lightfoot, Esq.,
Paulette E. Chapman, Esq., and Kelly J. Fisher, Esq. on the brief, for Appellees. DWLR page no. 1441.
CIVIL PROCEDURE
RULE 41(a)(2) VOLUNTARY DISMISSAL OF CROSS-CLAIM / UNTIMELINESS /
COURT DISCRETION / PRO TANTO CREDIT
The unfettered right to voluntarily dismiss one’s own claim diminishes the later the request is made in the litigation until it reaches a point
where not only is the Court’s permission required for simple dismissal, but the movant also subjects herself to the Court’s determination of
what constitutes the “such terms and conditions as the Court deems proper.” The Court is vested with this substantive authority in order
to govern any unjustified incursions upon judicial resources and to cure any abuses experienced by a party as a result of the inadvisable
maintenance of a claim. Appellate review of this discretion is “supervisory in nature and deferential in attitude” on appeal. Where such a
request is made to the prejudice of the other party, it may be denied with adverse consequences. Preferably cross-claims should be as early
as feasible. When it is not clear whether pro tanto or pro rata credit will obtain from a voluntary dismissal, consideration should be given to
allow the movant some degree of latitude.
Tippett v Daly
D.C.C.A. No. 06-CV-1327. Decided Feb. 5, 2009. Before Washington, C.J., and Ruiz and Fisher, J.J., with Judge Fisher writing for the
Court and a dissenting opinion by Judge Ruiz. (Hon. Mary A. Gooden Terrell, Trial Judge). Morris R. Battino, Esq. for Appellant. Carol S.
Blumenthal, Esq. for the Appellee. DWLR page on. 393.
LANDLORD & TENANT / PROPERTY LAW / LAW OF CONTRACTS
TENANT OPPORTUNITY TO PURCHASE ACT (TOPA) / “PROVIDE WITH” NOTICE OF INTEREST TO
PURCHASE DEFINED
For purposes of calculating time neither the Mailbox Rule nor the methodology set forth under Civil Rule 6 is applicable to the TOPA statute,
which has its own provision for calculating time periods. The relevant time period within which a tenant must respond to an offer of sale
commences with the date the tenant receives the offer. The statutory phrase “provide with” means to “supply for use” or to “furnish,” meaning the owner must have the statement in hand to read in order to make it “of use.” The requirement that a tenant “provide” an owner with
a statement of interest therefore means the date on which the owner actually receives the statement, not the date on which it was mailed,
if that is the delivery method chosen by the tenant. Any type of mail is permitted, but the sender thereby assumes the risk of untimely delivery after the specified response period has expired. The ordinary “rebuttable presumption” that a properly-addressed, stamped letter has
12
been delivered to the addressee if it is not returned to the sender and the rental housing regulations of service by mail are not applicable
to TOPA deadlines. If an owner accepts rent from a holdover tenant after the expiration of a notice to quit, without expressly reserving his
rights thereunder, the notice to quit is waived.
Washington Metro. Area Transit Authority v DC Dept. of Employment Services
D.C.C.A. No. 07-AA-748. Decided Feb. 5, 2009. Before Kramer and Fisher, J.J. and Schwelb, Sr. J. with Judge Fisher writing for the Court.
(Petition for Review of a Decision from the D.C. Dept. of Employment Services). Sarah O. Rollman, WMATA Assoc. Gen. Counsel, with
Carol B. O’Keefe, Gen. Counsel, and Mark F. Sullivan, Dept. Gen. Counsel on the brief, for Petitioner. Craig A. Rosentein, Esq. for Keith
Boyd, Intervenor. Linda Singer, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen. Donna M. Murasky, Dept. D.C. Sol. Gen., and William J. Earl,
Sr. Asst. D.C. Attny. Gen., filed a statement in lieu of a brief in support of the Intervenor. DWLR page no. 401.
WORKERS COMPENSATION
ADDITIONAL DISABILITY AWARD FOLLOWING SCHEDULE INJURY AWARD
Under the Workers Compensation Act, temporary total disability payments typically continue until the employee reaches maximum medical
improvement. Awards under the Act are geared to the effect any injury has on the loss of wage earning capacity, not on the nature of the
injury itself. An award from a schedule list of injuries is presumptive, rather than being subject to a burden of proof, but ordinarily a schedule
award is final and precludes any further temporary disability benefits. Under a narrow exception, however, if the employee’s injury deteriorates to the point that he can demonstrate a permanent partial disability in excess of the percentage rating of the schedule award, he would
be entitled to an additional schedule award, not just temporary total disability payments.
GLICKMAN
1836 S Street Tenants Association, Inc. v Estate of Battle
D.C.C.A. No. 06-CV-1460. Decided Feb. 5, 2009. Before Ruiz and Glickman, J.J., and Schwelb, Sr. J., with Judge Glickman writing for the
Court. (Hon. Melvin R. Wright, Trial Judge). Eric M. Rome, Esq., for Appellant. Kevin I. Kane, Esq. for Appellee. DWLR page no. 365.
[Editor’s Note: Discussions of TOPA sales have recently appeared in the DWLR as follows: Linen v. Langford, 136 D.W.L.R. 847 (Apr. 21,
2008)(D.C.C.A)(90-day notice required for two-family dwelling); Psaromatis v. English Holdings, LLC, 136 D.W.L.R. 903 (Apr. 28, 2008 )
(D.C.C.A.)(forfeiture of deposit); Mamo v. Skvirsky, 136 D.W.L.R. 2621 (Dec. 4, 2008)(D.C.C.A.)(commercial tenant’s right of first refusal);
and Malik Corp. v. Tenacity Group, LLC, 136 D.W.L.R. 2765 (Dec. 26, 2008)(D.C.C.A.)(implicit right of specific performance; owner may
not change mind after tenants have accepted)].
LANDLORD & TENANT / PROPERTY LAW / OBJECTIVE LAW OF CONTRACTS / AMBIGUITY
TENANT OPPORTUNITY TO PURCHASE ACT (TOPA) / “RIGHT OF FIRST REFUSAL”
AND “RIGHT OF FIRST OFFER” DISTINGUISHED
The District of Columbia follows the objective law of contracts which holds that the written language of an agreement will govern the parties
regardless of their intent unless that language is not susceptible of a clear and definite understanding or there is fraud, duress, or mutual
mistake, and all material terms are present, even if collateral or subsidiary terms remain subject to negotiation. A document is ambiguous
only if it is reasonably susceptible of different interpretations or of two or more meanings. It is not ambiguous, however, if one can determine its meaning without any other guide than a knowledge of the simple facts on which, from the nature of the language in general, the
meaning depends. The Tenant Opportunity to Purchase Act (TOPA) is intended to protect the interests of tenants when their rental property
is placed up for sale by the owner. Its purpose is to strengthen the bargaining position of tenants without unduly interfering with the rights
of property owners. Contractual interpretations, therefore, must be made toward the end of enhancing the rights of tenant associations to
the maximum extent permissible under law. In a sale, the owner must extend to the tenants a firm written offer, stating a minimum asking
price and, giving the tenants the first option to purchase at that price. Despite the general usage of the term “right of first refusal,” TOPA’s
mechanism is more property a “right of first offer.” The former term arises only after a third-party has made an offer to purchase and the
tenants are then allowed to purchase at that price; if they refuse, the owner may then sell to the third party. The latter term reverses that
process by requiring the owner to make the firm offer to the tenants first and then if they refuse, he may sell it to anyone else. In that case,
if the tenants’ acceptance is timely, a contract is formed.
Carter v DC
D.C.C.A. No. 07-CV-987. Decided Sept. 24, 2009. Before Reid, Glickman, and Oberly, J.J., with Judge Glickman writing for the Court.
(Hon. Mary A. Gooden, and Hon. Geoffrey M. Alprin, Motions Judge). David A. Branch, Esq. for Appellant. David A. Hyden, Asst. D.C. Attny.
Gen., with Peter J. Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Donna M. Murasky, Dep. D.C. Attny. Gen., for Appellee.
DWLR page no. 2249.
ADMINISTRATIVE LAW / D.C. HUMAN RIGHTS CLAIMS / TOLLING OF STATUTE OF LIMITATIONS / WITHDRAWAL OF ADMINISTRATIVE CLAIM
CIVIL PROCEDURE / LAW OF THE CASE DOCTRINE / INSUBSTANTIAL ERRORS / FAILURE TO PRESERVE ISSUE FOR APPEAL
Failure to bring “public policy” claims under the pertinent statute, such as the D.C. Whistleblower Act, may result in dismissal. A departure
from a previous Judge’s pre-trial ruling on “law of the case grounds” does not render the issue because the proper inquiry is whether the
second Judge’s ultimate disposition was correct, and not whether that ruling was consistent with that of the first Judge, unless the departure
results in unfair prejudice. Claims under the D.C. Human Rights Act have a one-year statute of limitations. Once, however, an employee
13
makes an election to pursue an administrative remedy with the D.C. Office of Human Rights, s/he is barred from filing a contemporaneous
judicial claim because the jurisdiction of the court and OHR are mutually exclusive in the first instance, unless the administrative claim has
been dismissed or the employee withdraws it. In order to withdraw a claim, however, the employee must notify OHR that she wishes to do
so and must withdraw it before a final administrative decision issues. An appellate court will generally disregard errors or defects which
do not affect the substantial rights of the parties, such as failure to allow ten days to respond to a motion. Failure to call a procedural lapse
to the attention of the Trial Judge is a failure to preserve that issue for appeal, which the Court of Appeals will excuse only in exceptional
situations and when necessary to prevent a clear miscarriage of justice apparent from the record.
Gaffney v US
D.C.C.A. No. 04-CF-1103. Decided Sept. 17, 2009. Before Reid and Glickman, J.J., and Pryor, Sr. J., with Judge Glickman writing for the
Court. (Hon. Thomas J. Motley, Trial Judge). Mikel-Meredith Weidman, D.C. Pub. Def. Serv., with James Klein and Samia Fam, PDS on the
brief, for Appellant. Ann K. H. Simon, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, and Denise Cheung, Asst.
U.S. Attnys., on the brief, for Appellee. DWLR page no. 2101.
PERJURY / TWO-WITNESS RULE
The perjury statute is not to be loosely construed. A perjury charge must show that a defendant made a false statement of material fact
knowing of its falsity. So that a case is not decided by simply balancing the statement of one witness against that of another, the quantum
of evidence required is traditionally embodied in the “Two Witness Rule,” which requires that the Government must prove the falsity of the
statement by the credible testimony of at least two witnesses. However, this goal can still be met with only one contradictory witness if that
testimony is corroborated by other evidence, which need only tend to establish an accused’s guilt. The Government must directly elicit that
factual basis for the perjury charge as a vital factor in contradicting a defendant’s denial and not leave that contradiction to mere inference.
While there may be ambiguous facts that should be left to the province of the jury to resolve, there are limits to that principle, including
that an excessively vague or fundamentally ambiguous question may not form the predicate for a perjury prosecution. Although a perjury
conviction cannot be sustained on the basis of a defendant’s prior inconsistent statement, such an inconsistency may itself constitute the
corroborative evidence to the testimony of another witness tending prove that the defendant has committed perjury.
Green Leaves Restaurant, Inc. v 617 H Street Associates
D.C.C.A. Nos. 06-CV-1359, 06-CV-1179 & 06-CV-1193. Decided June 25, 2009. Before Reid, Glickman and Thompson, J.J., with Judge
Glickman writing for the Court. (Hon. Stephanie Duncan-Peters, Motions Judge and Hon. Anna Blackburne-Rigsby, Trial Judge). Marc S.
Moskowitz, Esq. for Michael Cheah and Green Leaves Restaurant, Inc. Frederick W. Schwartz, Jr. for Kevin Yu and Wan Kam Lee. James
T. Maloney, Esq. for 617 H Street Associates. DWLR page no. 1373.
SURETYSHIP AND GUARANTORS
GUARANTOR / STOCKHOLDER’S APPARENT AUTHORITY TO BIND CORPORATION
An officer, director, shareholder, or guarantor of a corporation who has dealt regularly with another party may be deemed to have apparent authority, particularly where no other principal or the corporation itself takes no steps to repudiate such actions; this is especially so in
closely-held corporations. The burden is on the corporation to show that its officer acted without authorization. A material alteration of the
terms of an agreement may discharge the liability of a guarantor whose consent was not obtained and the rule that releasing one guarantor
releases all, are general principles which may be waived by a lease containing a reservation of rights waiving this principle may nevertheless be enforced. Where the contribution obligations of guarantors are concerned, equitable considerations mandate that it be apportioned
on the basis of their ownership interests.
McCraney and Stewart v US
D.C.C.A. Nos. 00-CF-358 & -361; 02-CO-117; and 05-CO-982. Decided Nov. 25, 2009. Before Glickman and Thompson, J.J., and Farrell,
Sr. J., with Judge Glickman writing for the Court. (Hon. Henry F. Greene, Trial Judge). Gregory S. Chermack, Esq., with Roger W. Yoerges,
Esq. on the brief, for Appellant Kareem McRaney. Robert S. Becker, Esq., appointed by the Court, for Appellant Momolu Stewart. John P.
Mannarino, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Thomas J. Tourish, Jr., Albert A. Herring, and Carolyn
K. Kolben, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2653.
[Editor’s Note: Craps, like trials themselves, is primarily a game of chance. Although similar games have appeared throughout history,
including in Egypt, Ancient Greece, and the Middle East (the Roman soldiers had “cast lots” for the robe of Jesus at his crucifixion (John
19:23-24)), the formal game of craps is said to have been introduced to the United States in New Orleans around 1813, deriving its name
from the French word crapaud (toad). Its aficionados tout it as “the most popular gambling game in history.” Despite its seemingly simple
manual methodology, it has a surprisingly complex set of rules for rolls of the dice under varying numerical circumstances and for placing
various types of bets. Whether in a casino or in an alley, there are also some nearly universal informal “rules of etiquette” attending the game
which include proscriptions on fiddling with the dice before shooting, allowing the dice while in one’s possession to drop below table level or
otherwise out of sight, over-shaking the dice, using two hands to shoot, throwing, rather than rolling, the dice, shooting while holding a cigar
or cigarette in that hand, placing bets after the shooter has the dice in hand, chronic complaining after a losing streak, and, presumably,
shooting the winner to death with a handgun.].
WINFIELD THIRD-PARTY ACCUSATION EVIDENCE / GOOD FAITH REQUIREMENT FOR BIAS EVIDENCE /
RELEVANCY PROSCRIPTION ON SPECULATIVE OR THEORETICAL EVIDENCE / EVIDENCE DESTROYED
PURSUANT TO ESTABLISHED POLICY NOT A JENCKS ACT VIOLATION / EVIDENCE SHOWING MERE
14
FEASIBILITY OF ACCUSED’S GUILT WITHSTANDS AN MJOA / COUNSEL’S POSSIBLE CONFLICT OF
INTEREST MUST RESULT IN AN ACTUAL DEPRIVATION OF CLIENT’S CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE / WAIVER
Prior to being allowed to argue at trial that someone else committed the crime, a defendant is required to provide the Court with advance
notice of facts which in the aggregate tend to indicate some reasonable probability of third-party culpability. Standing alone, evidence that
a person is a drug dealer, thus becoming a known target, is insufficient to sustain a third-party accusation. Cross-examination as to bias
must also be based on a “genuine belief” as to the trial-worthiness of the inquiry rather than on speculation. Destruction of evidence, such
as police tapes of 911 calls, during a well-established procedure for recycling resources, without any indication of bad faith or negligence,
does not constitute a Jencks Act violation. An MJOA based on the insufficiency of identification evidence is a matter for the jury’s determination based on credibility and not subject to an MJOA. A post-trial ineffective assistance of counsel motion based on the lawyer’s putative
conflict of interest must show that the conflict must be actual rather than merely theoretical, possible, or speculative, before it takes on Sixth
Amendment importance. Moreover, such claims may be waived by the (in)actions and acquiescence of the defendant during trial.
Reid v DC
D.C.C.A. No. 06-CF-806. Decided Sept. 17, 2009. Before Reid and Glickman, J.J, and Belson, Sr. J., with Judge Glickman writing for the
Court. (Hon. Stephen F. Eilperin, Trial Judge). Christopher Kemmitt, D.C. Pub. Def. Serv., with James Klein and Jaclyn Frankfurt, PDS, on
the brief, for Appellant. Sidney R. Bixler, Asst. D.C. Attny. Gen., with Peter J. Nickles, Acting D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen.,
and Rosalyn Calbert Groce, Dep. D.C. Sol. Gen., on the brief for Appellee. DWLR page no. 2073.
SCIENTIFIC EVIDENCE OF PERCENTAGE OF ALCOHOL REQUIRED FOR POSSESSION OF AN OPEN
CONTAINER OF ALCOHOL CONVICTION
In order to support a charge of Possession of an Open Container of Alcohol in a public place the Government must prove by adequate
scientific evidence that the liquid at issue contained .5% or more alcohol by volume.
Roberson v US
D.C.C.A. No. 02-CF-1250. Decided Dec. 18, 2008. Before Reid, Glickman, and Kramer, J.J., with Judge Glickman writing for the Court.
(Hon. Natalia Combs Greene, Trial Judge). Thomas D. Engle, Esq., with Sharon L. Burka, Esq. on the brief, for Appellant. Elizabeth H.
Danello, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, and Elizabeth Trosman, Asst. U.S. Attnys., on the brief,
for Appellee. DWLR page no. 33.
FORFEITURE BY WRONGDOING (DEVONSHIRE RULE) / PRIOR TESTIMONIAL HEARSAY
SIXTH AMENDMENT CONFRONTATION CLAUSE
A defendant who aids in procuring the murder of a government witness against him may be deemed to have waived certain rights based
on “forfeiture by wrongdoing,” and primary, or even secondary, “testimonial hearsay,” either from a grand jury or prior trial proceeding, may
be substituted. A Trial Judge must make the determination as to admissibility based on the entirety of circumstances, as to the quality and
reliability of the hearsay, based on the Judge’s inherent sound discretion and primary ability to evaluate the credibility of witnesses at trial,
together with drawing reasonable inferences, none of which an appellate court will second-guess unless shown to be clearly erroneous.
Tangoren v Stephenson; Hassan v Clarke and Biggs v Fenty
Nos. 07-CV-137, -216 & -171, respectively. Decided Aug. 6, 2009. Before Reid, Glickman, and Thompson, J.J., with Judge Glickman writing
for the Court. (Hon. Joan Zeldon, Reviewing Judge). Darryl F. White, Esq. for Appellants Ali Tangoren and Shemsedin Hassan. Daniel S.
Roth, Esq., with Kurt Berlin, Esq. on the brief, for Appellant James M. Biggs. Rawle Andrews, Esq., with Matthew A. Brinegar, Esq., on the
brief, for Appellee Elizabeth Lee. David A. Hyden, Asst. D.C. Attny. Gen., with Peter J. Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen.,
and Donna M. Murasky, Dep. D.C. Sol. Gen., on the brief, for Appellees Adrian Fenty and the District of Columbia. DWLR page no. 1717.
PROPERTY TAX SALES
INCOMPLETE CERTIFICATE OF SALE / TOLLING OF THE STATUTE
When the District Government sells land at public auction due to non-payment of property taxes, a strict set of statutory time periods must
be followed. A purchaser must wait at least six months from the date of sale before commencing any possessory proceedings but after
that is required to file for foreclosure on the property within one year of the date on the official Certificate of Sale issued by the Government. Otherwise the Certificate lapses and becomes void and the purchaser also forfeits all funds paid to the Government for the property.
The Government may not extend this deadline but a defective Certificate may toll the time period within which the purchaser is otherwise
required to act.
Trustees of the Univ. of the District of Columbia v Vossoughi
D.C.C.A. No. 05-CV-1165. Decided Jan. 15, 2009. Before Washington, C.J., Glickman, J., and Farrell, Ret. J., with Judge Glickman writing
for the Court. (Hon. Geoffrey M. Alprin, Esq., Trial Judge). Mary T. Connelly, Asst. D.C. Attny. Gen., with Robert J. Spagnoletti, D.C. Attny.
Gen., Linda Singer, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Edward E. Schwab, Dep. D.C. Sol. Gen., on the brief, for Appellants.
Jonathan C. Bailey, Esq., with Robert C. Kastecka, Esq. on the brief, for Appellee. DWLR page no. 325.
TORT LAW / EVIDENCE
PROOF OF DAMAGES / TESTIMONY OF EXPERTS IN THE FIELD / REASONABLE APPROXIMATION /
15
DOCTRINE OF AVOIDABLE CONSEQUENCES
A plaintiff’s own opinion as to the value of property destroyed or lost is competent evidence, particularly when the property is unique to a
field in which the plaintiff has demonstrated expertise. The testimony of experts in that same field is also permissible evidence as to valuation, particularly when they were familiar with the work and tools of the plaintiff himself. A damage award may not be based on speculation
or guesswork, but an injured party is not required to prove the value of the lost property with mathematical precision; only a fair degree of
probability is required, so long as there is a reasonable basis for approximation. Although fair market value is a valid factor in making such
a determination, it is not always adequate inasmuch as it may not be determinable or may not account for the value of unique property or
that which is peculiar to a plaintiff who may have a special appreciation thereof. The Doctrine of Avoidable Consequences or Mitigation of
Damages is only applicable after a tort has occurred and does not impose upon a party the obligation to take ameliorative action beforehand.
Objections to jury instructions must be made before the jury retires.
Washington v US
D.C.C.A. No. 05-CF-487. Decided Feb. 19, 2009. Before Reid, Glickman, and Thompson, J.J., with Judge Glickman writing for the Court
and a concurring opinion by Judge Reid. (Hon. Brian Holeman, Trial Judge). Judith A. Lovelace, Esq., for Appellant. J.P. Cooney, Asst.
U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Thomas J. Tourish, Jr., and Allison L. Barlotta, Asst. U.S. Attnys., on the
brief, for Appellee. DWLR page no. 557.
OVERRULING TIMELY OBJECTION WITH A FURTHER PRECLUSIVE RULING AS TO GOVERNMENT
RELIANCE ON DEA-7 REPORT ALONE, RESULTS IN REVERSAL AND OBVIATES LESSER-INCLUDED
ATTEMPT CHARGE
A Trial Court’s ruling denying a motion may be overstated, but regardless of what the Trial Judge had intended to say, the record governs
the ruling as stated. In a drug-related prosecution the Government has the statutory duty to provide the DEA-7 report at least five days
prior to trial so that Defense Counsel may have adequate time to review it, consult with his client over it, and decided whether and how to
challenge it. Now-settled rulings of the Court of Appeals do not allow the form to be admitted into evidence unless it is accompanied by the
testimony of the pertinent chemist under the Sixth Amendment’s Confrontation Clause. Where, over timely objection, the Trial Court allowed
it into evidence without supporting testimony and precluded any further motions on it, this was not harmless error. Under the Controlled
Substances Act the penalty for attempt is the same as that for the accomplished principal offense. A conviction for attempted distribution
may not be substituted under these circumstances because the Government must still prove the Defendant’s specific intent to distribute a
controlled substance and the presence of a naked DEA-7 report that the substance was an illegal drug impermissibly provides that evidence
to a jury, even though, with other appropriate inferential evidence of intent, the form or other proof of the nature of the substance is not
necessary to sustain a conviction for attempt.
Williams v US
D.C.C.A. No. 04-CF-1169. Decided Oct. 8, 2009. Before Reid and Glickman, J.J., and Farrell, Sr. J., with Judge Glickman writing for the
Court. (Hon. Susan R. Winfield, Trial Judge). Andrea Roth, D.C. Pub. Def. Serv., with James Klein and Jaclyn Frankfurt, PDS, on the brief,
for Appellant. John P. Gidez, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Thomas J. Tourish, Jr., David C. Woll,
and Eric P. Gallun, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2557.
[Editor’s Note: The apt Latin dictum for the result in this case is nonnullus personae plumbum lepor vixi. (“Some people live charmed
lives.”)].
SPECIAL UNANIMITY JURY INSTRUCTION REQUIRED IN CASES WHERE EACH INCIDENT IN A CHARGE
CONSTITUTES A SEPARATE OFFENSE
The Sixth Amendment requires that when proof of two or more separate incidents is offered to establish a defendant’s guilty of a single
charge, the jurors must be specially instructed that they must agree unanimously not only as to the defendant’s guilt but also as to the
specific incident(s) on which the guilty verdict is based.
Zanders v Reid and Baker
D.C.C.A. No. 06-CV-1384. Decided Sept. 17, 2009. Before Washington, C.J., and Glickman and Blackburne-Rigsby, J.J., with Judge
Glickman writing for the Court. (Hon. Maurice A. Ross, Trial Judge). John F. Pressley, Jr., Esq. for the Appellant. G. Vann Canada, Jr.,
Esq., with Bradford S. Bernstein, Esq. on the brief, for Appellees Richard Baker and Shirley Baker. No appearance was entered or brief
filed for Appellee Joseph C. Reid. DWLR page no. 2113.
REMEDIES / DOCTRINE OF UNCLEAN HANDS INAPPLICABLE AT LAW
CONSTRUCTIVE TRUST / TENANT OPPORTUNITY TO PURCHASE ACT
The Doctrine of Unclean hands cannot operate within the framework of a case at law, rather than in equity. Striking pleadings in a companion civil case for failure to conform to a protective order in a landlord-tenant case does not follow. Even within an L&T action standing
alone, an order striking a tenant’s pleadings for failure to conform to a protective order, and consequently entering judgment for the landlord,
only obtains on the issue of the landlord’s right to possession, thereby ending the landlord-tenant relationship. In an L&T case the tenant
remains free to sue for breach of contract in the Civil Division. The Unclean Hands Doctrine is not applicable to a legal claim for money
and operates only where the plaintiff’s misconduct occurred in connection with the same transaction that is the subject of her claim in the
pertinent action. A constructive trust may be based on the recovery of funds stemming from a breach of contract. The Tenant Opportunity
16
to Purchase Act (TOPA) provides that a plaintiff may seek to enforce rights through a civil action in either law or equity and implicitly authorizes court to collect on any award thereunder. A Trial Judge has discretion to grant equitable relief under TOPA in what amounts to a
landlord-tenant dispute when the tenant shows that the third party had actual or constructive knowledge of the tenant’s superior rights at
the time it acquired the property.
ISCOE
Goines v US
D.C.C.A. No. 04-CM-532. Decided Jan. 29, 2009. Before Thompson, J., Farrell, Sr. J., and Iscoe, D.C. Superior Court J., sitting by designation,
with Judge Iscoe writing for the Court. Jonathan W. Anderson, D.C. Pub. Def. Serv., with James Klein and Jaclyn S. Frankfort, D.C. Pub.
Def. Serv. on the brief, for Appellant. Stratton C. Strand, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, and
Elizabeth Trosman, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 309.
PROBABLE CAUSE / ARTICULABLE SUSPICION / COMMON SENSE REASONABLENESS
Probable cause for an arrest must be based on an objective standard of articulable suspicion taking into consideration the totality of the
circumstances and may be based, in part, on certain common sense premises that ordinarily govern human conduct. A person slumped over
the steering wheel of a parked motor vehicle with the engine running is still “operating” that vehicle under the pertinent traffic law and that
person’s ostensibly confused conduct may reasonably give rise to suspicion which prompts an investigation to determine whether an arrest is
justified and, if so, creates a lawful basis for a search of the vehicle incident to that arrest and the seizure of any evidence so discovered.
JOSEY-HERRING
Bacchus v US
D.C.C.A. No. 06-CM-1263. Decided Apr. 30, 2009. Before Ruiz and Blackburne-Rigsby, J.J., and Josey-Herring, Assoc. J. of the Superior
Court, with Judge Josey-Herring writing for the Court. (Robert I. Richter, Trial Judge). Cedric Miller, Esq., for Appellant. Ademuyiwa
Bamiduro, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Mary B. McCord, Amy Zubrensky, and Daria Zane, Asst.
PROPER USE OF UNCHARGED PRIOR CRIMES EVIDENCE
The use of prior uncharged criminal offenses not directly connected with those at current trial is prohibited unless the proffered evidence
falls under one of the exceptions to Fed. R. Evid. 404(b) allowing its use to show motive or intent or to rebut an argument that the actus
reus was an accident or mistake. The more general proscription that, even then, the prejudice must be weighed against the probative
value is qualified by the requirement that the prejudice must “substantially” outweigh the relevance. Although a collateral rule stands for
the principle that where two charges have been joined and a defendant is acquitted on one there was a misjoinder for such use in a similar
trial, that exception only applies to actual acquittals, not to dismissals. A similar rule allowing such evidence to be introduced in inter-spousal
assault cases may be utilized even where the parties are not married but have sustained a significant relationship that was the functional
equivalent of marriage. Although the Government must prove such prior acts by clear and convincing evidence, any error must be shown to
have resulted in a miscarriage of justice or affected the fairness, integrity, or public reputation of the judicial proceeding. The uncorroborated
testimony of an eyewitness on a destruction of property charge will not be disturbed if a reasonable factfinder could find the circumstances
surrounding the identification of the perpetrator and the property beyond a reasonable doubt.
KING
Ginsberg v Granados, et al
D.C.C.A. No. 07-CV-519. Decided Jan. 15, 2009. Before Fisher, J., and King and Terry, Sr. J.J., with Judge King writing for the Court. (Hon.
Russell F. Canan, Trial Judge). Sol Z. Rosen, Esq., for the Appellant. Debra L. Soltis, Esq. with Paul Y. Kiyonaga, Esq., on the brief, for
Appellees. DWLR page no. 177.
CIVIL PROCEDURE
SANCTIONS AGAINST LAWYER AND CLIENT AND
AWARD OF ATTORNEY’S FEES FOR BAD FAITH LITIGATION
The former Federal Youth Corrections Act and similar statutes requiring expungement of criminal records impose that duty on the trial court,
not on lawyers and others who legitimately obtain records in their extant form from the court. Neither the statute nor any other authority
imposes a duty on a lawyer who obtains and disseminates a record that should have been, but has not been, expunged. This is particularly
so when the record is properly used in an ongoing litigation case against that person because the “judicial proceedings privilege” protecting
the opposing lawyer is “absolute.” No negligence can be attributed to a lawyer who utilizes such a record, because the statute imposes no
duty on that lawyer as to the opposing party that can be breached. Where the opposing party, acting through a lawyer who files a suit against
the discovering lawyer, such conduct may be found to be “bad faith” litigation, without merit, recklessly filed for the purpose of harassment,
and subject to the Trial Court’s imposing sanctions and awarding attorney’s fees as an exception to the American Rule in such matters. This
17
is particularly applicable to a lawyer whose long-term experience at the Bar and whose recent experience in cases in which he had made
the same arguments which had been rejected and similar sanctions imposed. Further, a lawyer’s intemperate public statements against a
Trial Judge, as in calling him “ignorant” and “incompetent,” may be the subject of disciplinary proceedings for eroding the fairness of the
judicial process, tending to bring the courts and the law into disrepute, and destroying public confidence in their integrity.
Haywood v US
D.C.C.A. No. 06-CF-772. Decided Feb. 19, 2009, amended May 7, 2009. Before Reid, J., and King and Farrell, Sr. J.J. , with Judge King
writing for the Court. O. Dean Sanderford, D.C. Pub. Def. Serv., with James Klein, Jaclyn S. Frankfurt, and Alice Wang, D.C. Pub. Def. Serv.,
on the brief, for the Appellant. Leslie Ann Gerardo, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, and Daniel M.
Zachem, Asst. U.S. Attnys., were on the brief for Appellee. DWLR page no. 1113.
MISSING WITNESS / MISSING EVIDENCE ARGUMENTS DISTINGUISHED
Not every evidentiary ruling by a trial court implicates a criminal defendant’s constitutional right to cross-examine and present a defense.
The Confrontation Clause of the Sixth Amendment guarantees a defendant only an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defendant may wish. Without more, a criminal defendant may
not argue that the fact that the Government did not call one or more eyewitnesses to a crime implies that their testimony would have contradicted its case. The Missing Witness Rule requires that the absent witness had been peculiarly within the control of the Government.
Likewise impermissible is a “partial missing witness” argument, made by simply pointing out the absence of one or more witnesses, while
refraining from the argument that their testimony would have been adverse to the Government. This is not the same as the argument that
missing evidence, which the Government would otherwise have been expected to preserve, carries such a negative implication. If, under
the well-known Kotteakos standard, the Court is able to say that the Trial Court’s ruling did not affect the substantial rights of the defendant,
any error is harmless.
KRAMER
Alcazar Tenants’ Ass’n, et al v Smith Property Holdings, LP
D.C.C.A. No. 06-CV-914. Decided Sept. 17, 2009. Before Kramer and Blackburne-Rigsby, J.J., and King, Sr. J., with Judge Kramer writing
for the Court. (Hon. Patricia A. Broderick, Trial Judge). Steven A. Skalet, Esq., with Sandi Farrell, Esq., Jonathan K. Tycko, Esq., and Hassan
A. Zavareei, Esq. on the brief, for Appellants. Richard W. Luchs, Esq., with Vincent M. Policy, Esq., Gregory T. DuMont, Esq., Michael N.
Russo, Jr., Esq., and Michael S. Steadman, Esq. on the brief, for Appellees. DWLR page no. 2017.
D.C. RENTAL HOUSING CONVERSION AND SALE ACT
“SALE” DEFINED
In order to trigger tenants’ right of first refusal in a rental housing building under the Rental Housing Conversion and Sale Act, the conveyance must be one of 100% ownership to a completely different entity. The transfer of such property to a grantor’s wholly owned corporation,
or the transfer from one corporation to another owned and controlled by the same interests does not result in a change in ownership, but
merely a change in title, and therefore does not invoke a right of first refusal on the property.
Appleton and Ford v US
D.C.C.A. Nos. 06-CF-457 & -656. Decided Nov. 19, 2009. (Hon. Hiram Puig-Lugo, Trial Judge). Before Kramer and Blackburne-Rigsby, J.J.,
and Nebeker, Sr. J., with Judge Kramer writing for the Court. Shilpa S. Satoskar, D.C. Pub. Def. Serv., with James Klein, PDS on the brief,
for Appellant James C. Appleton. Peter H. Meyers, Esq., appointed by the Court, for Appellant Derrick A. Ford. Chrisellen R. Kolb, Asst. U.S.
Attny., with Jeffrey A. Taylor, U.S. Attny. and Roy W. McLeese III, Asst. U.S. Attny., on the brief, for Appellee. DWLR page no. 2489.
[Editor’s Note: The phrase attempting to “put me in an L” used by one of the Appellants in this case means having one shooter confront
the targeted individual face-to-face and the other circle around to his side so as to create an L-shaped cross-fire situation without either
shooter’s risking striking the other.].
MENS REA IN FELONY ASSAULT CHARGES / INVOCATION OF FEAR ARGUMENT / MERGER OF POSSESSION OF FIREARMS DURING CRIME OF VIOLENCE CONVICTIONS
Where a witness has given testimony at trial that contradicts his Grand Jury testimony, a prosecutor’s argument in closing that the witness
might have had some apprehension in testifying for the first time at trial in the presence of the accused is not necessarily an improper invocation that the witness fears reprisal by the accused but may be taken as an explanation of the difference between testimony before a Grand
Jury, where no defendant is present, and at trial, where the defendant is typically present. A jury instruction on aiding and abetting does not
necessarily have to include an explicit reference to having the mens rea required of the particular crime. Multiple convictions for Possession
of a Firearm During a Crime of Violence arising out of a single continuous course of action must merge for sentencing purposes.
Bean v Gutierrez
D.C.C.A. No. 07-CV-1135. Decided Sept. 10, 2009. Before Kramer and Fisher, J.J., and Belson, Sr. J., with Judge Kramer writing for the Court.
(Hon. Judith E. Retchin, Trial Judge). John F. Karl, Jr., Esq. for Appellant. Ronald L. Vavruska, Jr., for Appellee. DWLR page no. 2093.
CIVIL PROCEDURE / RULE 50 MOTION FOR JNOV
DEFAMATION / FALSE LIGHT
18
Even though a typically in-trial Motion for Judgment as a Matter of Law and a typically post-trial Motion for Judgment Notwithstanding the
Verdict are both rooted in Civil Rule 50, the failure of a Plaintiff to point out before the Trial Court that the Defendant had omitted moving for
the former as a predicate for filing a motion for the latter will ordinarily not be considered for the first time on appeal. To sustain a false light
invasion of privacy claim, a plaintiff must show that a communication regarding his or her private life was made and published in a manner
that is substantially certain to become known to the public at large.
Blackson v US
D.C.C.A. No. 06-CF-1494. Decided Aug. 20, 2009. Before Reid, Kramer, and Oberly, J.J., with Judge Kramer writing for the Court and a
concurring opinion by Judge Oberly. (Hon. Lee F. Satterfield, Trial Judge). Alice Wang, D.C. Pub. Def. Serv., with James Klein and Samia
Fam, PDS, on the brief, for Appellant. John P. Gidez, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Thomas J.
Tourish, Jr., and Michelle D. Jackson, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 1825.
ADOPTIVE ADMISSION / STATE OF MIND EVIDENCE / EVIDENCE OF FEAR ABOUT TESTIFYING
An accused may be deemed to have made an adoptive admission of the statement of another by silent acquiescence under circumstances
where unambiguous evidence shows that he actually heard and understood the statement and had an opportunity to deny it, but did not do
so. This principle does not require the Government to “clearly prove” the attendant circumstances, but only facts from which a jury could
reasonably conclude that the adoption had occurred. A jury should be instructed that it may, but is not required, to accept the adoptive
admission. The state of mind exception to the hearsay rule applies only where it addresses a relevant issue in the case. The state of mind
of a person other than the accused is rarely apt. Explanatory testimony by a Government witness as to his reluctance to testify based on
fear of reprisal is allowable when it is immediately followed by a clear and thorough limiting instruction circumscribing consideration of the
testimony to the conduct of the particular witness and informing the jury that it is to be considered only for purposes of gauging the credibility
of that witness and is not direct or indirect evidence in any way that the accused had, or had caused, any intimidation to take place.
Brawner v US
D.C.C.A. No. 06-CF-142. Decided Sept. 3, 2009. Before Washington, C.J., and Glickman and Kramer, J.J., with Judge Kramer writing for
the Court. (Trial Judge Erik P. Christian). Jaclyn S. Frankfurt, D.C. Pub. Def. Serv., with James Klein, PDS on the brief, for the Appellant.
Elizabeth H. Danello, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese, III, and John Einstman, Asst. U.S. Attnys., on
the brief, for the Appellee. DWLR page no. 1981.
ESCAPE FROM PRISON
Escape from prison is to be distinguished from escape from police custody. A completed escape from prison is to be distinguished from an
attempted escape from prison. The former may include failure to return to a halfway house, a completed escape which requires only general
intent, while the latter is an incomplete escape, but requires specific intent. An appropriate jury instruction must be given.
DC v Economides
D.C.C.A. No. 08-CT-538. Decided Mar. 26, 2009. Before Kramer, Fisher, and Thompson, J.J., with Judge Kramer writing for the Court.
(Hon. John M. Mott, Trial Judge). Sidney R. Bixler, Asst. D.C. Attny. Gen., with Peter J. Nickles, Acting D.C. Attny. Gen., Todd S. Kim, D.C.
Sol. Gen., Rosalyn Calbert Grace, Dep. D.C. Sol. Gen, on the brief, for Appellant. Cary M. Feldman, Esq., with Grace B. Culley, Esq. on
the brief, for Appellee. DWLR page no. 697.
BUILDING PERMITS / CRIMINAL PROSECUTION
OBTAINING PERMIT NUNC PRO TUNC DOES NOT OBVIATE INITIAL CRIMINAL LIABILITY
The entire purpose of requiring building permits prior to beginning work on a construction project is to ensure compliance with building
codes, safety of the public, and enforcement of the law. When a builder materially departs from the building permit originally issued and
continues with an expanded project not originally comprehended by it, a criminal violation has occurred. Subsequently obtaining a conforming building permit does not excuse the violation nunc pro tunc. To do so would undermine the entire regulatory scheme designed to bring
about the public policy benefits stated above. Because it is a criminal offense, however technical, the decision as to whether and how to
prosecute such a violation is peculiarly within the unfettered discretion of the Executive Branch and the Courts will not interfere prior to the
filing of the charges.
Gathers v US
D.C.C.A. No. 06-CF438. Decided Aug. 13, 2009. Before Reid and Kramer, J.J., and Farrell, Sr. J., with Judge Kramer writing for the Court.
(Hon. Lynn Leibovitz, Post-Trial Motion Judge). M. Elizabeth Kent, Esq. For Appellant. Stephan E. Oestreicher, Jr., Spec. Asst. U.S. Attny.,
with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, Asst. U.S. Attny., on the brief, for Appellee. DWLR page no. 1853.
THE GENERAL RULE IS THAT THERE IS NO RETROACTIVE APPLICATION OF NEW
CONSTITUTIONAL RULINGS TO CASES ON COLLATERAL APPEAL IN THE DISTRICT OF COLUMBIA
As a prevailing rule, there is no retroactive application of new constitutional rulings to collateral appeals in criminal cases in the District
of Columbia.
19
Hackney v Chamblee
D.C.C.A. No. 08-FM-1033. Decided Aug. 27, 2009. Before Ruiz, Kramer, and Oberly, J.J., with Judge Kramer writing for the Court. Vanessa
Carpenter Lourie, Esq. on the brief for Appellant. Sherry L. Leichman, Esq., on the brief for Appellee. DWLR pgae no. 1893.
DOMESTIC RELATIONS
FAMILY COURT’S INHERENT JURISDICTION / AUTHORITY TO AWARD ATTORNEY’S FEES
The Family Court of the Superior Court has inherent jurisdiction to make all rulings necessary, including the enforcement of its own judgments and decrees on a monetary basis, on a case before it without reference to the Civil Division. The award of attorney’s fees in such a
case is within the sound discretion of that Court and will not be revised or reversed absent an abuse of discretion.
Hunter v US
D.C.C.A. No. 06-CF-539. Decided Sept. 17, 2009. Before Kramer, Blackburne-Rigsby, and Thompson, J.J., with Judge Kramer writing for the
Court and a separate opinion by Judge Blackburne-Rigsby dissenting in part. (Hon. Harold L. Cushenberry, Trial Judge). Alice Wang, D.C.
Pub. Def. Serv., with James Klein, PDS, on the brief, for Appellant. Mary Chris Dobbie, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny.,
Roy W. McLeese III, Thomas J. Tourish, Jr., and Precious Murchison, Asst. U.S. Attnys. on the brief, for Appellee. DWLR page no. 2241.
CRIMINAL LAW AND PROCEDURE / MERGER VEL NON OF THREATS TO MORE THAN ONE PERSON
REVERSE DREW EVIDENCE / RELEVANCY
A defendant’s attempt to introduce reverse Drew evidence tending to show a recent crime of a similar nature by someone else as being
thereby exculpatory as to him should be calibrated under the rule of relevancy that allows probative evidence having “any tendency” to lead
to the conclusion for which it is proffered, the only countervailing restriction being that it must not be more prejudicial than probative. Where
an oral threat is made in the direction of multiple persons with the consequence of instilling fear of serious bodily harm to each, as contrasted
with one act directed at an undifferentiated group of victims, an accused may be charged with and convicted of multiple counts of threats.
In re D.M.B., Evan J. Krame, trustee and In re Dion Baker Special Needs Trust, Evan J. Krame, Trustee
D.C.C.A. Nos. 06-PR-1064 & -1379 and 07-PR-207. Decided Aug. 20, 2009. Before Reid, Kramer, and Fisher, J.J., with Judge Kramer
writing for the Court. (Hon. Peter H. Wolf and Hon. Ronald P. Wertheim, Trial Judges). Edward G. Varrone, Esq. for Appellant. Stacy L.
Anderson, Asst. D.C. Atty. Gen., with Peter J. Nickles, D.C. Attny. Gen. and Donna M. Murasky, Dep. D.C. Sol. Gen. on the brief, for the
District of Columbia. DWLR page no. 2573.
[Editor’s Note: As the Court of Appeals noted in this opinion, both Judge Wolf and Judge Wertheim have taken the lead in elucidating
this slow-to-develop area of D.C. law with earlier opinions each. Judge Wolf’s opinions have appeared in these pages in the cases of In re
De’Shawn Mecco Brown, 135 D.W.L.R. 301 (Feb. 5, 2007)(affirmed in the instant case) and In re Leslie Zelaya, 135 D.W.L.R. 1133 (May 7,
2007)(Before Court can act on proposed transfer of the situs of special needs trust to Maryland, where the reason for the transfer appears
to be increases in the compensation of the Trustee and limited oversight which would occur, the Court asks the Trustee to answer questions
regarding the proposed transfer). Judge Wertheim’s published contributions in this area appeared in the cases of In re Lynteakia Beal,
133 D.W.L.R. 1047 (June 20, 2005)(Court denies petition of Trustee of Special Needs Trust for annual compensation of 1% of Trust assets
because the duties of trustee more closely approximate those of conservator/guardian than conventional trustee; it is more appropriate for
compensation to be awarded under Probate Rule 308); In re Hameed E. Allen, 134 D.W.L.R. 839 (Apr. 7, 2006)(Percentage commission
on Special Needs Trust is unreasonable where the same service had been previously charged at hourly rates totaling a much lower sum as
“financial and administrative services”); and In re Dion Baker, 135 D.W.L.R. 1141 (May 8, 2007)(Annual compensation of attorney in Special
Needs Trust is not to be set as a percentage of trust assets but should be capped at that percentage; compensation is to be approved based
on time and comparable attorney fees). In addition, Judge Brooke Hedge issued an earlier opinion in this area of the law in the case of In
the Matter of the Petition of D.S. and R.M. for the Adoption of a Minor Child, 123 D.W.L.R. 1149 (June 14, 1995)(Joint petition to adopt by
two unmarried persons is granted in best interests of child where adoptee is “special needs child” who has been in their care since June
1992).
SPECIAL NEEDS TRUSTS
A TRUSTEE’S COURT-APPROVED COMPENSATION IN A SPECIAL NEEDS TRUST, HOWEVER CALCULATED, IS SUBJECT TO REQUIRED PROOF OF REASONABLENESS
Court-appointed trustees in special needs trusts must keep adequate time and service records in order to meet burden of justifying Court
approval of their fees. They must show that compensation, whether calculated on a percentage of the total trust assets, an hourly basis, or
otherwise, bears a close relation to work actually performed and time expended. This is particularly apt in the case of special needs trusts,
where attorneys – who are officers of the court – regularly serve as trustees in lieu of financial institutions, and where court supervision of
trustee compensation should fairly mirror the protections afforded by the guardianship statute. Moreover, the pertinent statute provides
that, due to circumstances not anticipated by the settlor, the Court may exercise its inherent administrative powers in such matters to order
modifications or even termination of the trust if it concludes that such action will further the purposes thereof or that continuation of the trust
on its existing terms would be impracticable or wasteful or impair the trust’s administration. Compensation may fairly be excluded for time
spent challenging or appealing the Court’s orders in this regard.
In re Elijah Peterson
D.C.C.A. No. 06-FM-1333. Decided Dec. 3, 2009. Before Ruiz, Kramer, and Blackburne-Rigsby, J.J., with Judge Kramer writing for the
Court. (Hon. Linda K. Davis, Trial Judge). Laurie B. Davis, D.C. Publ. Def. Serv., with James Klein, PDS on the brief, for Appellant. Stacy
L. Anderson, Asst. D.C. Attny. Gen., with Peter J. Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Donna Murasky, Dep. D.C.
Attny. Gen. on the brief, for Appellee. DWLR page no. 2617.
20
ERVIN ACT / MENTAL HEALTH LAW
CHANGE OF STATUS FROM VOLUNTARY TO INVOLUNTARY COMMITMENT
The Ervin Act provides that any person who is at least 18 years old may apply to a public or private hospital in the District of Columbia for
voluntary inpatient treatment but may request a discharge which must be arranged within 48 hours. In general, such voluntary patients
may not be converted to involuntary status but there is an exception for emergency situations in which the patient is ruled to be no longer
amenable to voluntary treatment as an inpatient.
In re Estate of Mary Munawar
D.C.C.A. No. 07-PR-588. Decided Sept. 17, 2009. Before Kramer, Blackburne-Rigsby, and Thompson, J.J., with Judge Kramer writing for
the Court. (Hon. Eugene N. Hamilton, Trial Judge). Bruce M. Bender, Esq., with Erica T. Davis, Esq. on the brief, for Appellant. Serene D.
Charles, Esq. for Appellee. DWLR page no. 2025.
REMEDIES
REFORMATION / PAROL EVIDENCE / STANDARD OF PROOF
Reformation is an equitable power designed to remedy a mistake as to expression, a scrivener’s error, or where the writing does not accurately represent the parties’ mutual agreement. Parol evidence is admissible to explain the parties’ intent in executing and receiving a
written instrument. Nevertheless, there is a presumption that a deed is what it purports to be on its face, and one who seeks to establish
the contrary must do so by clear and convincing evidence.
In re Estate of Mary H. Nethken
D.C.C.A. Nos. 06-PR-1599 & -1600. Decided Aug. 20, 2009. Before Kramer, Fisher, and Thompson, J.J., with Judge Kramer writing for
the Court. Harry J. Jordan, Esq., for Appellants/Cross-Appellees. Eric R. Stanco, Esq., with Valerie Powell, Esq. on the brief, for Appellees/
Cross-Appellants Peerless Insurance Co. DWLR page no. 2281.
ESTATES / STATUTE OF LIMITATIONS
PROOF OF FRAUD / CLEAR AND CONVINCING EVIDENCE
The Statute of Limitations on an estate administrator’s bond begins to run from the time that the final account is filed. In cases alleging fraud,
however, the statute would commence at the point where the plaintiff knew or should have known of the fraud, but this would obtain only if
the evidence of such fraud is found to be sufficient. The operative standard is that of “clear and convincing evidence,” which is defined as
lying somewhere between preponderance of the evidence and evidence probative beyond a reasonable doubt, which would produce in the
mind of the trier of fact a firm belief or conviction as to the facts sought to be established. Presumptive evidence of fraud is not a substitute
for evidence of fraudulent intent.
Jacobs v US
D.C.C.A. No. 07-CM-664. Decided Sept. 17, 2009. Before Glickman, Kramer, and Fisher, J.J., with Judge Kramer writing for the Court.
(Hon. Truman A. Morrison, III, Trial Judge). Gaillard T. Hunt, Esq. for the Appellant. Steven E. Swaney, Asst. U.S. Attny., with Jeffrey A.
Taylor, U.S. Attny., Roy W. McLeese III, and Florence Pan, Asst. U.S. Attnys., on the brief, for the Appellee. DWLR page on. 2065.
STIPULATED PLEA / ODOR OF MARIJUANA AS PROBABLE CAUSE FOR SEARCH
A police officer’s articulable suspicion as the basis to conduct a warrantless search emanates from a combination of facts attendant to each
individual case. All reasonable inferences derived from those facts must be viewed in favor of sustaining the trial court’s ruling. Probable
cause to search an automobile may be based, at least in part, on an officer’s recognition of the smell of drugs.
Johnson and Franklin v US
D.C.C.A. Nos. 05-CF1311, -1353, -1444 & -1468. Decided Sept. 17, 2009. Before Glickman and Kramer, J.J., and Farrell, Sr. J., with Judge
Kramer writing for the Court. (John H. Bayly, Jr., Trial Judge). Joseph E. Fluet III, Esq., with Robert M. Caray, Esq. and Bradley J. Bondi,
Esq., on the brief, for Appellant Akande L. Johnson. Jenifer Wicks, Esq., for Appellant Damon Franklin. John P. Mannarino, Asst. U.S. Attny.,
with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Thomas J. Tourish, Jr., Ann M. Carroll, and Matthew P. Cohen, Asst. U.S. Attnys.,
on the brief, for Appellee. DWLR page no. 2037.
AIDING AND ABETTING OF SECOND-DEGREE MURDER / SEVERANCE OF DEFENDANTS / BRADY
EVIDENCE / FEAR OF TESTIFYING / HARMLESS ERROR / EXCITED UTTERANCE IN RESPONSE TO
INTERROGATION / EXCLUSION OF EXPERT WITNESS TESTIMONY / ADMITTING PHOTOGRAPHS OF
DECEDENT
Although generally when individuals have been charged together there is a strong presumption that they should be tried together, a severance
should be granted when the defendants offer conflicting and irreconcilable defenses so that the jury might unjustifiably infer that this conflict
alone demonstrates that both are guilty and it is shown that failure to do so would result in manifest prejudice to one or both defendants.
The failure of the Government to disclose putative Brady evidence is not cause for reversal unless it had caused material prejudice to the
defendant such that there existed a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have
been different. Similarly, the giving of the now discredited “natural and probable consequences” jury instruction may prove to be harmless
beyond a reasonable doubt unless there is a reasonable possibility that any juror relied on the erroneous instruction to arrive at a verdict of
guilty. An aider and abettor must know that another participant had the intent necessary for second-degree murder. Evidence that a witness
21
is testifying under fear tends to be extremely prejudicial because it appeals to the passions of the jury and implies that the defendant has
done something to engender that fear and therefore such a tactic must be the limited exception rather than the rule in such instances. A
statement made in response to a question does not necessarily keep that statement from being an “excited utterance” where the declarant
is still under the spell of the startling event. Photographs of the decedent showing injuries must not be more prejudicial than probative but
are relevant in showing the medical treatment required on the victim as well as showing the defendant’s mens rea. Prospective testimony
of a medical expert witness may be excluded where the value of such testimony is minimal at best.
K.R. v C.N.
D.C.C.A. No. 05-FM-371. Decided Apr. 15, 2009. Before Glickman, Kramer, and Fisher, J.J., with Judge Kramer writing for the Court. (Hon.
J. Michael Ryan, Trial Judge). Cynthia Nordone, Esq., for Appellant. Sonia W. Murphy, Esq., with Paul S. Lee, Esq. and Rachel L. Strong,
Esq., on the brief, for Appellee. DWLR page no. 865.
ADOPTION / NON-PARENT PETITIONER PERMITTED CAUSE OF ACTION AGAINST NATURAL PARENT
SAFE AND STABLE HOMES FOR CHILDREN AND YOUTH AMENDMENT
The Safe and Stable Homes for Children and Youth Amendment to the Family Court Act of 2001 expressly permits qualifying non-parents
to compete with natural parents for the adoption of a child, giving a rebuttable presumption to the parent.
Kenneth J. Loewinger, et al v Stokes
D.C.C.A. No. 06-CV-1076 & -1077. Decided July 30, 2009. Before Reid and Kramer, J.J., and Schwelb, Sr. J., with Judge Kramer writing
for the Court. (Hon. Neal E. Kravitz, Trial Judge). Robert Corn-Revere, Esq., with Amber L. Husbands, Esq. on the brief, for Appellant
Kenneth Loewinger. Samuel M. Shapiro, Esq. for Appellant Loewinger & Brand, PLLC. Emily Johnson Henn, Esq. filed a statement in lieu
of a brief for Appellee Clement Stokes. Eric Angel, Esq., with Barbara McDowell, Esq. on the brief, for the Legal Aid Society of the District
of Columbia as Amicus Curiae. DWLR page no. 1997.
MASTER-METERED APARTMENT BUILDING ACT
CIVIL CONTEMPT
The Master-Metered Apartment Building Act does not permit a court-appointed receiver thereunder to delegate back to the landlord in utility
arrears the authority to file landlord-tenant actions for the collection of past-due rent. The proper procedure is for the receiver to file such
suits, naming the landlord as co-plaintiff. Both a landlord and its counsel acting in violation of a court under this statute may be subject to a
civil contempt order. There is no jurisdictional bar to one division or branch of the Superior Court entertaining an action more appropriately
considered in another division or branch, so long as doing so does not violate the statute or rules of the court and the claim has a rational
nexus to a subject matter within the responsibility of that division or branch. The proper response to a seemingly ambiguous court order
is not to read it as one wishes but to apply to the court for clarification or modification. A finding of civil contempt is designed to enforce
compliance with an order of the court and to compensate the aggrieved party for any loss or damage sustained as a result of the contemnor’s noncompliance. The intent of a person who has violated the terms of a court order is immaterial to a civil contempt proceeding and a
showing of good faith is of no avail. The only defenses the law recognizes are substantial compliance or an inability to do what the court
has commanded. Whether to find a respondent in contempt is a determination to be made the court, not the legislature. A respondent may
purge itself of civil contempt and no longer be in contempt of court.
Monteilh v AFSCME, AFL-CIO
D.C.C.A. No. 06-CV-1155. Decided Sept. 17, 2009. Before Kramer, Fisher, and Blackburne-Rigsby, J.J., with Judge Kramer writing for the
Court. (Hon. John M. Campbell, Trial Judge). Harry J. Jordan, Esq. for the Appellant. Andrew D. Roth, Esq., with Gary Kohlman, Esq. on
D.C. HUMAN RIGHTS ACT
RACE AND AGE DISCRIMINATION / SUBJECT MATTER JURISDICTION WHERE DECISION IS MADE IN
THE DISTRICT OF COLUMBIA
The D.C. Human Rights Act is a remedial civil rights statute which must be generously interpreted. Subject matter under it obtains when
any decision resulting in an adverse employment impact occurs within the District of Columbia even though that impact may be felt elsewhere.
Mozee v US
D.C.C.A. Nos. 02-CF-941 & 04-CO-1649. Decided Jan. 28, 2009. Before Ruiz, Glickman, and Kramer, J.J., with Judge Kramer writing for
the Court. (Hon. Shellie F. Bowers, Trial Judge. Hon. Craig Iscoe, Post-trial Motions Judge). Deborah A. Persico, Esq., with Joseph A.
Virgilio, Esq., appointed by the Court, on the brief, for Appellant. John P. Gidez, Asst. U.S. Attny., with Kenneth L. Wainstein, U.S. Attny.,
Thomas J. Tourish, Jr. and Joan Draper, Asst. U.S. Attys., on the brief, for Appellee. DWLR page no. 169.
PLAIN ERROR IN FIRST DEGREE SEXUAL ASSAULT JURY INSTRUCTION DOES NOT NECESSARILY
REQUIRE REVERSAL / ANTI-DEADLOCK INSTRUCTION HELD NOT COERCIVE
During a rape trial, it was plain error for the Trial Court to have instructed the jury that it should not consider the defense of consent until it had
first examined all the Government’s evidence that a rape had occurred. Even though plain error, however, reversal is not required unless it
is shown that the error adversely affected the Defendant’s “substantial rights” so that “but for” that error, the verdict might have been different. After receiving one jury note indicating an inability to reach a verdict, a precatory instruction to resume deliberations is not considered
22
coercive, even when combined with the Gallagher Anti-Deadlock Instruction given after receiving a similar note during the second day of
deliberations, especially when no objection had been lodged. An instruction that the jury should consider “all the evidence” as a whole in
arriving at its verdict is considered curative, especially in light of overwhelming evidence of guilt. It is not reversible error to allow the jury to
have a tape recording of the Anti-Deadlock Instruction in the jury room, especially when, at the discretion of the Trial Court, it already has
printed copies of all other instructions in the case.
Owens and Young v DC
D.C.C.A. Nos. 05-CF-444 & 05-CF-520. Decided Oct. 8, 2009. Before Kramer and Blackburne-Rigsby, J.J., and Farrell, Sr. J., with Judge
Kramer writing for the Court. (Hon. Ann O’Regan Keary, Trial Judge). Jenifer Wicks, Esq. for Appellant Glenn Owens. Mindy A. Daniels,
Esq. for Appellant Jamal Young. Peter S. Smith, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, Elizabeth
Trosman, and June M. Jeffries, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2537.
FAILURE TO OBJECT TO FINAL JURY INSTRUCTIONS / PLAIN ERROR / LESSER INCLUDED OFFENSE
INSTRUCTION / CORRECTIVE INSTRUCTION / INVITED ERROR / SUFFICIENCY OF EVIDENCE / CO-PRINCIPALS
Where a party submits proposed jury instructions but the Trial Court, without further discussion on the point, gives different instructions, the
error is not preserved if the party fails to object to the final instructions given and the issue can only be reviewed on appeal under the “plain
error” standard. In the case of a rejected defense jury instruction for a particular lesser-included offense, where the jury is still presented with
one or more other intermediate options between the greater offense and acquittal, the harm of any error is reduced and the fact that the jury
chooses another intermediate penalty on which to convict does not diminish the reliability of the jury’s conviction of a greater offense. Where
a defendant not only does not object to a jury instruction, but in fact also requested it himself, he will not be heard to raise the issue on appeal
because a defendant may not take one position at trial and a contradictory position on appeal. Where a rejected jury instruction arises out
of defense counsel’s cross-examination it may be deemed as “invited error” for which an appellate court is especially reluctant to reverse.
Even in the absence of an aiding and abetting charge or instruction, it is possible for there to be “joint principals in the first degree” and no
such instruction is necessary in order for the acts of one principal in furtherance of the crime to be imputed to another principal. Where facts
are shown that a codefendant engaged in the brutal beating of a victim, resulting in broken bones and severe and painful internal injuries,
there is ample evidence to prove that he knowingly engaged in conduct which created a grave risk of serious bodily injury that could result
in extreme physical pain or death, especially when it is proven that that the victim did, in fact, die from same.
Pearson v Chung
D.C.C.A. No. 07-CV-872. Decided Dec. 18, 2008. Before Kramer and Thompson, J.J., and Farrell, Ret. J., with Judge Kramer writing for
the Court. (Hon. Judith Bartnoff, Trial Judge). Roy L. Pearson, Jr., Esq., Appellant Pro Se. Christopher C.S. Manning, Esq., for Appellees.
DWLR page no. 69.
[Editor’s Note: As mentioned above, in what should have been a Small Claims case, the Pearson matter generated nationwide publicity.
See, e.g., Marc Fisher, “Lost Pants Case Exposes Scary Side of Legal System,” Washington Post (Dec. 23, 2008)(Plaintiff “got cuffed,
stuffed and otherwise rebuffed” by the Court of Appeals whose restrained ruling “demonstrated far more discretion and class than … [he]
ever displayed.”); Suevon Lee, “Dry Cleaner Calls $54 Million Lawsuit Over Pants a ‘Nightmare,’” New York Times (June 14, 2007)(“’[I]t’s a
story of how one man has ruthlessly abused the legal system … and caused a great deal of suffering for … a hardworking mom-and-pop
business.’”)(quoting Defendant’s lawyer); Article, “He Who Laughs Last,” Dallas Morning News (Sept. 22, 2007)(“Citing lost business and
the emotional toll of fighting the lawsuit, the Chungs closed their doors.”); Ben Popken, “$54 Million Pants Case Back in Court,” Consumer
Media, (New York, N.Y.) at http://consumerist.com04849954-million-pants-case-back-in-court (Sept. 11, 2008)(“This man gets the award
for worst consumer ever.”); Article, “Judge Rejects Roy L. Pearson’s $54 Million Pants Lawsuit,” International Business (Dec. 18, 2008)
(“Pearson may still ask the entire nine-judge appellate court to review the case, or request the U.S. Supreme Court to give its opinion.”);
Article, “Appeals Court Rejects D.C. Missing Pants Suit,” USA Today (Dec. 18, 2008)(“Three appellate judges agreed Pearson failed to
show the store’s advertising policy amounted to fraud and said his argument defied logic.”): Article, “Appeals Court Rejects D.C. Missing
Pants Case,” WGN-TV (Chicago) (Dec. 18, 2008) at http://www.wgntv.com/landing/?blockID=165459&feedID=29; Associated Press,
“Appellate Court Rejects D.C. Missing Pants Case,” Atlanta Journal Constitution (Dec. 18, 2008)(“The American Tort Reform Association
lauded the court’s move, saying the city’s easily exploited consumer protection law should be reformed.”); Article, “Appeals Court Rejects
D.C. Missing Pants Case,” Denver Examiner (Dec. 18, 2008); Article, “Court Won’t Review Missing Pants Case,” (Tucson) Arizona Daily
Star (Dec. 19, 2008); Article, “Appeals Court Rejects D.C. Missing Pants Case; Former Judge Sued Dry Cleaners for $54 Million,” KIRO-TV
(Seattle, Washington)(Dec. 18, 2008) at http://www.kirotv.com/jobs/18311087/detail.html; and Joel Havemann, “Judges Cuts Pants Plaintiff
No Slack,” Los Angeles Times (June 26, 2007)(“Legal experts said the decision went part of the way toward lifting the stain that the case
had left on the U.S. legal system.”)].
D.C. CONSUMER PROTECTION ACT / COMMON LAW FRAUD
“SATISFACTION GUARANTEED” INTERPRETED / “REASONABLE CONSUMER” STANDARD
Both common law fraud and any such claim under the D.C. Consumer Protection Act must be proven by a standard of “clear and convincing
evidence.” In making relevant determinations an objective viewpoint, that of a “reasonable customer,” must be utilized, giving due respect to
“basic common sense.” A late-filed request for a jury trial is subject to the wide discretion of the trial court and, absent evidence that shows
that the court either took into consideration any improper factors or failed to take into consideration any pertinent factors, the exercise of
that sound discretion will not be reversed on appeal.
23
Sandula v DC Police and Firefighters’ Retirement and Relief Board
D.C.C.A. No. 07-AA-622. Decided Aug. 27, 2009. Before Kramer and Fisher, J.J., and Schwelb, Sr. J., with Judge Kramer writing for the
Court. (Petition for Review of a Decision of the D.C. Police & Firefighters’ Retirement and Relief Board). Marc L. Wilhite, Esq., with James
W. Pressler, Esq., on the brief, for Petitioner. Richard S. Love, Sr. Asst. D.C. Attny. Gen., with Peter J. Nickles, Interim D.C. Attny. Gen., Todd
S. Kim, D.C. Sol. Gen., and Donna M. Murasky, Dep. D.C. Sol. Gen., on the brief, for Respondent. DWLR page no. 1933.
[Editor’s Note: A corollary issue in this case, the “Treating Physician Rule” was reported in these pages in the case of Wells v. Astrue, 137
D.W.L.R. 1689 (Aug. 13, 2009)].
DISABILITY LAW
“SUBSTANTIAL EVIDENCE” DEFINED
A review of an administrative decision depends on whether the agency made findings of fact on each material, contested issue and drew
rational conclusions from those findings. The decision must be supported by “substantial evidence,” which is defined as “more than a mere
scintilla and such as a reasonable mind might accept as adequate to support a conclusion.” Although an agency’s determination of the
credibility of a witness is entitled to the usual deference, there are occasions when a reviewing court must override such a determination
by examining evidence in the record that detracts from the agency’s finding, which the court may disregard it is found to be unreasonable,
self-contradictory or based on inadequate reasoning. In this regard, evidence that is slight in relation to much stronger contrary evidence
is not “substantial evidence.” In such cases, a court expects an agency to give persuasive reasons for its reliance on particular testimony;
otherwise, the evidence could not be deemed reliable, probative, and substantial.
Savoy v US
D.C.C.A. No. 06-CF-1605. Decided Oct. 1, 2009. Before Kramer and Thompson, J.J., and Steadman, Sr. J., with Judge Kramer writing for
the Court. (Hon. Robert R. Rigsby, Trial Judge). Thomas T. Heslep, Esq., appointed by the Court, for Appellant. Trena Carrington, Asst.
U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, Mary B. McCord, and Lynn E. Haaland, Asst. U.S. Attnys., on the
IMPERSONATING A POLICE OFFICER / FRAUDULENT DESIGN ELEMENT / POSSESSION OF PROHIBITED
WEAPON / SLAPJACK HELD TO BE ANOTHER VERSION OF A BLACKJACK
The statute on impersonation of a police officer prohibits anyone who is not a member of the police force from representing himself as
such with a fraudulent design in so doing. As to misrepresentation, acts as well as words can convey that element, such as carrying and
displaying police equipment. Fraudulent design may also be manifested via all multifarious means in seeking personal advantage, which
does not necessarily have to be material in nature. On a possession of a prohibited weapon charge, a “slapjack” is simply another version
of a “blackjack,” as used in the pertinent statute.
Scales v DC
D.C.C.A. No. 05-CV-1446. Decided June 18, 2009. Before Kramer and Thompson, J.J., and Steadman, Sr. J., with Judge Kramer writing for
the Court. (Hon. Melvin R. Wright, Trial Judge). Deidra L. McEachern, Eq., for Appellant. Mary L. Wilson, Sr. Asst. D.C. Attny. Gen., with
Robert J. Spagnoletti, D.C. Attny. Gen. and Todd S. Kim, D.C. Sol. Gen., on the brief, for App. DWLR page no. 1345.
POLICE OFFICER’S QUALIFIED IMMUNITY / “PARTIALLY SUBJECTIVE TEST”
SECTION 1983 CLAIM DISTINGUISHED FROM COMMON LAW TORTS CLAIMS
Whether a Section 1983 claim lies, depends on a legal determination as to whether a constitutional or statutory right had been violated
and, if so, whether that right was clearly established at the time the alleged violation occurred. That decision, in turn, can only be made by
considering whether it would be clear to a reasonable actor under color law, such as a police officer, that his conduct was unlawful in the
situation confronted. If a court cannot say that the decision to act in the fashion complained of was unreasonable, it in effect grants the actor
“qualified immunity,’ thus disposing of any Section 1983 claim as a matter of law. Where a common law false arrest claim is concerned,
however, it may be subject to the “partially subjective test” which constitutes an affirmative defense if the actor can demonstrate that s/
he reasonably believed, in good faith, that his or her conduct was lawful under the circumstances. Likewise, as to an assault and battery
charge, a police officer may have a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are
not in excess of those which the officer reasonably believes to be necessary, a standard to be derived from the perspective of a reasonable
officer on the scene, with allowance for the his or her need to make quick decisions under potentially dangerous circumstances. The officer
must subjectively believe that he or she used no more force than necessary, but the officer’s judgment is compared to that of a hypothetical
reasonable police officer placed in the same situation. Moreover, even though a police officer might have qualified immunity for a Section
1983 claim, s/he might still be held liable under negligence or another standard. The applicable standard of care for negligence is that of a
reasonably prudent police officer, which requires expert testimony to prove.
Thompson v DC
D.C.C.A. No. 07-CV-1161. Decided Sept. 3, 2009. Before Ruiz, Kramer, and Fisher, J.J., with Judge Kramer writing for the Court. (Hon.
Ronna Lee Beck, Trial Judge). Robert L. Bell, Esq. for Appellant. Mary T. Connelly, Asst. D.C. Attny. Gen, with Peter J. Nickles, Interim D.C.
Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Donna M. Murasky, Dep. D.C. Sol. Gen., on the brief, for Appellee. DWLR page no. 1961.
ADMINISTRATIVE LAW
PRE-REQUISITE FOR D.C. GOVERNMENT EMPLOYEES TO FILE ADVERSE EMPLOYMENT ACTION SUIT
IN SUPERIOR COURT
24
The enactment of the Comprehensive Merit Personnel Act was intended to create a mechanism for addressing virtually every conceivable
personnel issue among the District, its employees, and their unions, with a reviewing role for the court as a last resort, not a supplementary
role for the courts as an alternative forum. In adverse employment actions D.C. Government employees must first appeal to the Office of
Employee Appeals before filing any complaint regarding the matter in the Superior Court. Failure to do so will result in jurisdictional dismissal
of any such suit for failure to exhaust administrative remedies.
Watson v US
D.C.C.A. No. 05-CM-1357. Decided Sept. 10, 2009. Before Reid and Kramer, J.J., and Schwelb, Sr. J., with Judge Kramer writing for the
Court and a separate opinion by Judge Schwelb dissenting in part. Relinda Louisy, Esq. for Appellant. Mary Chris Dobbie, Asst. U.S. Attny.,
with Kenneth L. Wainstein, U.S. Attny., Roy W. McLeese III, Elizabeth Trosman, Patrick Costello, and Lynn C. Mattucci, Asst. U.S. Attnys.,
SIMPLE ASSAULT / BOYD INQUIRY AS TO RIGHT NOT TO TESTIFY / DE MINIMIS OFFENSES
In a criminal case in which a challenge to the sufficiency of the evidence has been raised, the governing rule is that the Appellate Court
must view all evidence and reasonable inferences therefrom in a light most favorable to the Government. Moreover, in a bench trial, a
criminal conviction will not be reversed unless an appellant has established that the trial court’s factual findings are plainly wrong or without
evidence to support them. Neither violence in its ordinary meaning nor actual fear is necessary to prove a simple assault. Any attempt to
do unlawfully to another any bodily injury, however small, constitutes an assault, because the statute is designed to protect not only against
physical injury, but also against all forms of offensive touching. An appellate court lacks the power, in the absence of statutory authorization,
to vacate a conviction on de minimis grounds.
Way v US
D.C.C.A. No. 06-CF-1084, Decided September 9, 2009. Before Ruiz, Kramer, and Oberly, J.J., with Judge Kramer writing for the Court. (Hon.
Erik P. Christian, Trial Judge). Joanne Vasco, Esq., appointed by the Court, on the brief for the Appellant. Jeffrey A. Taylor, U.S. Attny., Roy
W. McLeese III, Elizabeth Trosman, and Nicholas P. Coleman, Asst. U.S. Attnys.,on the brief for Appelle. DWLR page no. 2385.
[Editor’s Note: Though not stated in the Court’s opinion, the results of his unfortunate case for the Appellant not only included four felony
convictions but also, in all probability, dismissal from the police force on less than honorable grounds, concomitant loss of career, potential
forfeiture of employment benefits, imprisonment as a known former police officer there on a sex conviction, and required lifetime registration
as a convicted sex offender – all over a single thoughtless, evanescent carnal encounter.].
SECOND DEGREE SEXUAL ABUSE
One may be convicted of second degree sexual abuse if it is satisfactorily proven that the accused engaged or caused another person to
engage in or submit to a sexual act by threatening or placing that other person in reasonable fear, including fear for personal safety or fear
of being arrested.
Wilson v Holt Graphic Arts, Inc.
D.C.C.A. No. 07-CV-348. Decided Oct. 1, 2009. Before Kramer, Fisher, and Thompson, J.J., with Judge Kramer writing for the Court. (Hon.
Robert E. Morin, Trial Judge). Allen Wilson, Esq. for Appellant. Matthew August LeFande, Esq. for Appellee. DWLR page no. 2165.
CIVIL PROCEDURE / RULE 60(b)(1)-(3) DISTINGUISHED FROM RULE 60(b)(4) FOR TIMELINESS / VOID
JUDGMENTS DISTINGUISHED FROM VOIDABLE JUDGMENTS
UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT / WRIT OF FIERI FACIAS
Under the Uniform Enforcement of Judgments Act, foreign judgments are subject to the same procedures and defenses as local judgments
and the proper approach to for relief is to file a Rule 60(b) motion. Rule 60(b)(1)-(3)’s one-year requirement within which to do so is to be
distinguished from the “reasonable time” allowed for motions under Rule 60(b)(4) for Judgments that are “void,” not “voidable.” A Writ of
Fieri Facias may not be executed against a debtor’s residence but that right must be formally claimed and its validity decided by the court
on the merits or it is forfeited.
Young v US
D.C.C.A. No. 07-CM-1227. Decided Oct. 8, 2009. Before Glickman, Kramer and Oberly, J.J., with Judge Kramer writing for the Court.
(Hon. Jeanette Clark, Trial Judge). Mindy Daniels, Esq. for Appellant. Katherine M. Kelly, Asst. U.S. Attny., with Jeffrey Taylor, U.S. Attny.
and Roy W. McLeese III and Matthew M. Graves, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2581.
PERMISSIBLE EXTENT OF PROTECTIVE SWEEP DURING EXECUTION OF SEARCH WARRANT
A Trial Court’s denial of a suppression motion is to be reviewed on appeal on a standard in which the facts and all reasonable inferences
therefrom must be viewed in favor of sustaining the Trial Court’s ruling and its factual findings will not be set aside unless found to be clearly
erroneous. There is no flat rule governing the scope of a search incident to the execution of a warrant. A court must take into consideration
all the circumstances involved in a particular case. The court may put itself in the officers’ position to determine (1) whether the seized
object was within the arrestee’s immediate control when he was arrested, and (2) whether the events occurring after the arrest but before
the search made the search unreasonable.
25
NEBEKER
Bonner v Peterson
D.C.C.A. No. 07-CV-1401. Decided Feb. 26, 2009. Before King, Ferren, and Nebeker, Sr. J.J., with Jude Nebeker writing for the Court.
(Hon. Ronna Lee Beck, Trial Judge). Michelle R. Bonner, Appellant Pro Se. No appearance or brief was filed for the Appellant. DWLR
page no. 557.
LANDLORD AND TENANT
WAIVER OF NOTICE TO QUIT DOES NOT OBVIATE A NOTICE TO CURE
A lease waiver of notice to quit is not the same thing as waiver of notice to cure and while the former may be waived the latter is still required
in order to maintain a suit for possession.
Curtis v Gordon
D.C.C.A Nos. 08-FM-541 & -607. Decided Oct. 1, 2009. Before Fisher and Oberly, J.J., and Nebeker, Sr. J., with Judge Nebeker writing for
the Court. (Hon. Jerry S. Byrd, Trial Judge). Gary A. Stein, Esq. for Appellant. Eric H. Singer, Esq. for Appellee. DWLR page no. 2141.
DOMESTIC RELATIONS LAW
CHILD SUPPORT AGREEMENTS / LAW OF CONTRACTS / AMBIGUITY / UNCONSCIONABILITY / LACHES
/ FAILURE TO READ / CREDITOR’S DISCRETION TO APPLY DELINQUENT PAYMENTS / SUPERSEDEAS
BOND
A contract is not ambiguous merely because the parties disagree over its meaning but only when the provisions in controversy are reasonably
susceptible of two or more different meanings. When, using the plain meaning of the term in dispute, the Court can determine its meaning
without any other guide than knowledge of the simple facts, then there is no ambiguity. Such an interpretation is a matter of law which the
Appellate Court determines de novo. In general, there is a presumption that a child support agreement negotiated between two parents is
adequate to meet the child’s foreseeable needs. In order to show that a term in such an agreement is unconscionable, the claimant must
prove that he had no meaningful choice in signing the agreement. There is nothing unreasonable about a provision in such an agreement
that imposes a penalty for each month an individual is delinquent in his or her monthly obligations. One who assents to a writing is presumed to know its contents and cannot escape being bound by its terms merely by contending that he did not read them, unless the terms
of the contract are unconscionable. Absent a provision to the contrary, every creditor has the right to apply the unappropriated monies of
his debtor as s/he pleases in retiring the debts due. Laches is a mixed question of law and fact, the former reviewed de novo and the latter
reviewed for “clear error.” It does not obtain, however, unless it is shown that there has been an undue and unexplained delay on the part of
one party which works an injustice to the other party. Domestic Relations Rule 54(c) implicitly grants a trial court broad discretionary power
to provide for relief, such as the posting of a supersedeas bond, even if the party has not demanded such relief in his or her pleadings. A
party who is appealing a judgment is not required to file a supersedeas bond; he is permitted to do so when he wishes to prevent execution
on a judgment pending appeal. In issuing a judgment in such a case, absent an agreement, a trial court should not fix the interest rate on
any arrearages at a firm percentage but should utilize the term “at the legal rate.”
DC Dept. of Consumer and Reg. Affiars v Stanford, PR
D.C.C.A. No. 08-AA-80. Decided Aug. 13, 2009. Before Washington, C.J., Thompson, J., and Nebeker, Sr. J., with Judge Nebeker writing
for the Court. (On Petition for Review from an Order of the Office of Administrative Hearings). Mary L. Wilson, Sr. Asst. D.C. Attny. Gen.,
with Peter J. Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Donna Murasky, Dep. D.C. Sol. Gen., on the brief, for Petitioner.
Mark L. Shaffer, Esq., with Brandy A. Osimokun, Esq., and Randy Alan Weiss, Esq., on the brief, for Respondent. DWLR page no. 1801.
TAX LAW
ADMINISTRATIVE LAW / JURISDICTION / ANTI-INJUNCTION ACT
Once a tax lien is lodged against real property, the only valid recourse is to pay the tax first and then file suit in the Superior Court, which
has exclusive jurisdiction over such matters, for a tax refund. No administrative agency has any subject matter jurisdiction to remove a
property tax lien.
NEWMAN
Harris v Omelon
D.C.C.A. No. 08-CV-1025. Decided Dec. 3, 2009. Before Ruiz and Oberly, J.J., and Newman, Sr. J., with Judge Newman writing for the
Court and a concurring opinion by Judge Ruiz. (Hon. Natalia M. Combs Greene, Trial Judge). Theodore P. Harris, Appellant Pro Se. Andrew
J. Spence, Esq., with Stephen L. Altman, Esq. on the brief, for Appellee. DWLR page no. 2633.
[Editor’s Note: All the classic Long Arm Statute decisions discussed in this case appeared in the Daily Washington Law Reporter. See
Mouzavires v. Baxter, 109 D.W.L.R. 1885 (Sep. 14, 1981); Shoppers Food Warehouse v. Moreno, 128 D.W.L.R. 673 (Mar. 29, 2000); and
Etchebarne-Bourdin v. Radice, 137 D.W.L.R. 2269 (Oct. 30, 2009).]
CIVIL PROCEDURE
NO LONG-ARM JURISDICTION BASED ON SINGLE PHONE CALL
In order for in personam jurisdiction to attach under the “transacting business” provision of the D.C. Long Arm Statute, the defendant’s
conduct must constitute “purposeful, affirmative activities directed at D.C. residents.” Similarly, the statute’s provision regarding an act or
26
omission done outside the District that causes injury here requires “an additional connection” between the individual over whom jurisdiction
is sought and some “regularly conducted or solicited“ business or another “persistent course of conduct,” also known as “plus factors,” in
the District. A single telephone call into the District, without more, does not qualify under either provision.
Pellerin v 1915 16th Street Co-Op. Ass’n
D.C.C.A. No. 08-CV-319. Decided Oct. 1, 2009. Before Washington, C.J., Kramer, J., and Newman, Sr. J., with Judge Newman writing for
the Court. (Hon. Michael L. Rankin, Trial Judge). Johnny M. Howard, Esq. for Appellant. Jack D. Lapidus, Esq., with Kevin B. McParland,
Esq. on the brief, for Appellee. DWLR page no. 2153.
CO-OPERATIVE ASSOCIATIONS / LACK OF A QUORUM
CIVIL PROCEDURE / CONSIDERATIONS AS TO AN AMENDED COMPLAINT
Failure to raise the issue of absence of a quorum in a co-operative membership or board meeting when a member, personal representative, or lawyer for same is present, amounts to a acquiescence in the ongoing proceeding and a waiver of that issue. Whether to permit
the amendment of a complaint is a decision within the broad discretion of the Trial Court, taking into consideration such factors as (1) the
number of previous requests, (2) the length of time into the case, (3) any bad faith or dilatoriness involved, (4) the merit of the proffered
amendment, and (5) any appreciable prejudice to the non-movant.
OBERLY
Andrate-Sorto v Allstate Ins. Co.
D.C.C.A. No. 07-CV-899. Decided Oct. 8, 2009. Before Fisher and Oberly, J.J., and Belson Sr. J., with Judge Oberly writing for the Court.
(Hon. Mary A. Gooden Terrell, Trial Judge). Alexander Francuzenko, Esq. for Appellant. Thomas P. Ryan, Esq., with Amy Leete Leone,
LAW OF CONTRACTS
INSURANCE POLICY NOT PAID AFTER DATE OF EXPIRATION FOR RENEWAL DEEMED LAPSED
Failure to pay an insurance premium on or before the due date designated by the insurer constitutes an offer that has not been formally
accepted and therefore coverage lapses, an insurer’s practice of allowing a “grace period” for payments notwithstanding. There is no public
policy in the District of Columbia requiring insurers to continue to provide coverage for insureds and putative “innocent victims” who might
otherwise have been covered by a policy for which the premium has not been paid.
Diggs v US
D.C.C.A. No. 07-CM-1094. Decided Mar. 5, 2009. Before Ruiz and Oberly, J.J., and Steadman, Sr. J., with Judge Oberly writing for the Court.
(Hon. Robert R. Rigsby, Trial Judge). Gregory A. Cotter, Esq., appointed by the Court, for Appellant. Jeffrey A. Taylor, U.S. Attny., with Roy
W. McLeese III, Florence Pan, Bryan Seeley, and Cormac T. Connor, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 565.
[Editor’s Note: For those interested in such things, technically speaking “Clue,” the board game, which originated in England in 1949, is
manufactured by the Hasbro Toy Co., not by the Milton Bradley Co. of “Monopoly” fame, which is one of its numerous current subsidiaries,
as mentioned in the Court’s opinion.]
POSSESSION OF PROHIBITED WEAPON DEPENDS ON INTENDED USE / RIGHT TO JURY TRIAL FOR
SAME / ATTEMPT IS SUBSUMED IN EVERY GREATER CHARGE AND DOES NOT REQUIRE A NEW
INFORMATION
Whether an instrument is a “prohibited weapon” depends on whether its use is intended to inflict harm upon another. A criminal defendant is
entitled to a trial by jury if the maximum punishment for the offense exceeds 180 days’ incarceration. The offense of “attempt” is subsumed
in every charge of the greater offense and, although it is better for the Government to make the determination prior to trial, there is no need
for it to file separate criminal information after trial has begun or ended.
Dunn v US
D.C.C.A. No. 08-CM-920. Decided July 23, 2009. Before Fisher and Oberly, J.J. and Newman, Sr. J., with Judge Oberly writing for the Court.
(Hon. John H. Bayly, Jr., Trial Judge). Sean R. Day, Esq. on the brief for Appellant. Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III
and Bernard J. Delia, Asst. U.S. Attnys., on the brief for the Appellee. DWLR page no. 1569.
DE MINIMIS DEGREE OF AN UNWANTED TOUCHING IS NO DEFENSE TO SIMPLE ASSAULT
Once an accused has the general intent to do an act which results in the unwanted touching of another, even though de minimis, an actionable criminal offense of simple assault occurs. The offense does not depend on whether there was any injury, pain, or necessity for medical
treatment because the statute is designed to protect not only against physical injury, but also against all forms of offensive touching, and
even the mere threat of such touching.
Egbuka v US
D.C.C.A No. 99-CF-1700. Decided Apr. 2, 2009. Before Ruiz, Thompson, and Oberly, J.J., with Judge Oberly writing for the Court. Kyle A.
McGonigal, Esq., with Marc L. Resnick, Esq., on the brief, for Appellant. John P. Gidez, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny.,
Roy W. McLeese III, Christellen R. Kolb, and Jonathan M. Malis, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 785.
27
CRIMINAL LAW AND PROCEDURE / SPOUSAL PRIVILEGE
LOST OR INCOMPLETE TRANSCRIPT RECORD / SUBSTITUTE STATEMENT OF PROCEEDINGS
That large portions of the transcript of trial proceedings are missing or lost does not make appellate review impossible. In some cases a
Substitute Statement of Proceedings, drawing on what transcripts may be available and the notes and recollections of the principals involved
may be generated. An appellant has the burden of proof of showing the prejudice involved in such cases. Where, however, such extenuating circumstances as a case in which neither the successor trial judge nor any of the lawyers was involved in the original proceedings and
a large portion of the trial transcript (e.g., 40%) cannot be reconstructed, due process considerations may outstrip final judgment issues
and may mandate reversal and remand for consideration of a new trial. The spousal privilege comprehended by the Intrafamily Offense Act
endows only the testifying spouse with the right to invoke that privilege. The Trial Court has the responsibility to ensure that the testifying
spouse is informed of that privilege and that any ensuing testimony is volunteered, not compelled.
Gorgone v DC Board of Zoning Adjustment
D.C.C.A. No. 08-AA-231. Decided June 11, 2009. (Petition for Review of a Decision of the D.C. Board of Zoning Adjustment). Simon M.
Osnos, Esq. for Petitioner. Mary T. Connelly, Asst. D.C. Attny. Gen., with Peter J. Nickles, Acting D.C. Attny. Gen., Todd S. Kim, D.C. Sol.
Gen., and Donna M. Murasky, Dep. D.C. Sol. Gen., were on the brief, for Respondent. DWLR page no. 1313.
ZONING LAW / NON–CONFORMING COMMERCIAL USE
GRANDFATHERING / ABANDONMENT / CERTIFICATE OF OCCUPANCY
A certificate of occupancy is an enforcement tool which may be used by administrative officers to check both proposed uses and structures
from violating an applicable ordinance. It may be revoked if it is found to have been issued in error or if the actual occupancy does not
conform to that permitted by it. This is particularly so when an operation has a greater impact on the surrounding neighborhood in the way
of odors, trash and vermin. A subsequent applicant for a certificate of occupancy for a non-conforming use may not necessarily rely on the
rights of its predecessors because the rulings of previous officials who failed to enforce the letter of the law are not binding on subsequent
administrators who wish to give the law its full effect. The right to a non-conforming use may be deemed abandoned where some overt
act or failure to act which carries the implication of abandonment occurs; any such discontinuance for a period of more than three years is
prima facie of no intention to resume active operation as a non-conforming use.
In re the Prosecution of Emerson Crawley
D.C.C.A. No. 09-SP-245. Decided Aug. 20, 2009. Before Glickman, Kramer, and Oberly, J.J., with Judge Oberly writing for the Court. (On
Certification from the Superior Court, Hon. Geoffrey M. Alprin, Trial Judge). Frederick D. Cooke, Jr., for Emerson Crawley. Todd S. Kim,
D.C. Sol. Gen., with Peter J. Nickles, D.C. Attny. Gen., Rosalyn Calbert Groce, Dep. D.C. Sol. Gen., and Sidney R. Bixler, Asst. D.C. Attny.
Gen., on the brief, for the District of Columbia. Roy W. McLeese III, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., on the brief, for the
United States. DWLR page no. 1841.
[Editor’s Note: Inasmuch as the Court of Appeals took the time, for the first time, to research and present the history and development of
prosecutorial authority in the District of Columbia, the Legal Editor herewith presents a “A Brief Topical History of Local and Federal Trial
and Appellate Courts in the District of Columbia,” a previously unpublished manuscript, as a companion piece to that discussion in today’s
case, which he dedicates to Judge Geoffrey M. Alprin, the Trial Judge therein.]
OFFICE OF THE D.C. ATTORNEY GENERAL IS LIMITED TO THE PROSECUTION OF MINOR OFFENSES /
ALL SERIOUS MISDEMEANORS AND FELONIES MUST BE PROSECUTED BY THE OFFICE OF THE U.S.
ATTORNEY
Only the Office of the U.S. Attorney for the District of Columbia may prosecute serious misdemeanors and felonies. The Office of the D.C.
Attorney General is limited to prosecuting petty crimes, police and traffic offenses, quality of life crimes, and violations of municipal regulations.
Lancaster and Gayles v US
D.C.C.A. Nos. 04-CF-508 & 04-CF-943. Decided July 9, 2009. Before Washington, C.J. and Kramer and Oberly, J.J., with Judge Oberly
writing for the Court. (Hon. Russell F. Canan, Trial Judge). Mindy A. Daniels, Esq., appointed by the Court, for Appellant Lancaster. M.
Elizabeth Kent, Esq., appointed by the Court, for Appellant Gayles. April E. Farnley, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy
W. McLeese III, Laura R. Bach, and J.P. Cooney, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 1553.
STANDARD OF REVIEW IN ONE-EYEWITNESS CASES / AIDING AND ABETTING / POSSESSION OF A
FIREARM DURING CRIME OF VIOLENCE
In appellate review of one-eyewitness cases the test is whether a reasonable person could find an identification convincing beyond a reasonable doubt under the surrounding circumstances. The Court will consider the evidence in a light most favorable to the Government, giving
full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction
between direct and circumstantial evidence. Factual considerations include (1) the opportunity of the witness to observe, (2) the length of
time involved, (3) the lighting conditions, (4) the stimuli operating on the witness at the time of the observation, (5) the time between the
initial observation and the identification, and (6) the degree of certainty expressed by the eyewitness. Where constitutional error is shown
or conceded, an appellant still has the burden of demonstrating that the error had a reasonable probability of having a prejudicial effect on
the outcome of the trial and that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Where a
28
defendant has been convicted of aiding and abetting a crime of violence in which the principal perpetrator possessed a firearm, a distinction
must be made between an appellant’s involvement in aiding and abetting the underlying crime and the Government’s obligation to prove
separately that a defendant intended to aid in the principal’s possession of a firearm in perpetration of the crime. The Government must
prove that the aider and abettor knew, either before or during the underlying crime of violence, that a firearm would be carried or used and
that the defendant willingly took some affirmative action that encouraged or assisted the principal’s possession of the firearm. Participation
in the “larger scheme” alone is insufficient to implicate involvement in the particularized firearm offense.
Obeniran v Hanley Wood, LLC
D.C.C.A. No. 08-AA-634. Decided Dec. 17, 2009. Before Ruiz and Oberly, J.JU., and Farrell, Sr. J., with Judge Oberly writing for the Court.
(Petition for Review from the D.C. Office of Administrative Hearings). Henry Odeniran, Petitioner Pro Se. No appearance or brief was filed
by the Respondent. DWLR page no. 2697.
UNEMPLOYMENT COMPENSATION
“GROSS MISCONDUCT” EXPLICATED
In order to totally preclude a former employee of the right to unemployment compensation based on misconduct on the job, an employer
must show that the employee’s actions or inactions constituted “gross misconduct,” not merely “simple misconduct,” which must be such
as to adversely affect a material interest of the employer.
Tiber Island Cooperative Homes, Inc. v DC Zoning Commission and Marina View Trustee, LLC, Intervenor
D.D.C. No. 07-AA- 1280. Decided July 9, 2009. Before Reid, Fisher, and Oberly, J.J., with Judge Oberly writing for the Court. Michael B.
McGovern, Esq., for Petitioner. Richard S. Love, Sr. Asst. D.C. Attny. Gen., with Peter J Nickels, Acting D.C. Attny. Gen., Todd S. Kim, D.C.
Sol. Gen., and Donna Murasky, Dep. D.C. Sol. Gen., on the brief, for Respondent. Deborah B. Baum, Esq., with Paul A. Tummonds and
Alison B. Rousseau, Esq., on the brief, for the Intervenor. DWLR page no. 1489.
ADMINISTRATIVE LAW
D.C. ZONING COMMISSION / TIMING OF REQUEST TO APPEAR AS PARTY
An administrative agency’s interpretation of its own rules and procedures is entitled to great deference on appeal and is not reversible unless
plainly erroneous or inconsistent with the law or applicable regulations. When an agency requirement provides that a request to be heard
must be lodged no later than specified number of days before a schedule hearing, it means the date of the hearing as scheduled, not the
date on which, due to some unforeseen delay, the hearing actually takes place.
WMATA v Ferguson
D.C.C.A. No. 08-CV-668. Decided Aug. 8, 2009. Before Reid, Fisher, and Oberly, J.J., with Judge Oberly writing for the Court. Janice L.
Cole, Esq., Assoc. Gen. Counsel, WMATA, with Carol B. O’Keeffe, Esq., Gen. Counsel, and Mark F. Sullivan, Esq., Dep. Gen. Counsel, on
the brief, for Appellant. Victor E. Long, Esq. for Appellee. DWLR page no. 1777.
TORT LAW
ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF DEFECT REQUIRED BEFORE
LIABILITY CAN PROPERLY BE FOUND
A party responsible for maintaining a property cannot be held liable for any defect thereon which results in injury to another unless it had
actual or constructive notice of the defect. This requires either direct evidence of that fact or evidence from which a factfinder can draw a
permissible inference. The mere existence of the defect alone is not sufficient evidence of constructive notice of same.
PER CURIAM
Bruno v Western Union Financial Services, et al
D.C.C.A. No. 06-CV-64. Decided June 18, 2009. Before Kramer and Fisher, J.J., and Belson, Sr. J. Per Curiam. (Hon. Melvin R. Wright,
Trial Judge). Salvatore J. Zambri, Esq., with Patrick M. Regan, Esq. and Paul J. Cornoni, Esq. on the brief, for Appellant. Samuel N Shapiro,
Esq., with Jeffrey R. Schieler, Esq. on the brief, for Appellees. DWLR page no. 3121.
VICARIOUS LIABILITY
BASIS FOR IMPOSING A “HEIGHTENED FORESEEABILITY” STANDARD AS TO POTENTIAL CRIMES
BY THIRD PARTIES
A plaintiff bears the burden of establishing that a criminal act which caused injury to him or her while on the commercial property of another
was so foreseeable to the property owner that a heightened duty arises to guard against it. Typical evidence includes a history of crimes
committed on the premises or in the relevant area, repeated congregation of miscreants on or near the premises, offenses at nearby enterprises, or location in a high-crime neighborhood.
Estate of Linda Blackwell v Campbell
D.C.C.A. No. 08-CV-278. Decided Aug. 31, 2009. Before Washington, C.J., and Pryor and Kern, Sr. J.J. Per Curiam. (Hon. Lynn Leibowitz,
Trial Judge). Nathan A. Neal, Superv. Attny., D.C. Law Students in Court Program, with Jamilia A. Diggs, Daniel Hughes, Regan Williams,
and Daniel Allman, Student Attnys., on the brief, for Appellant. No brief or appearance was filed on behalf of the Appellee. DWLR page
no. 2437.
29
LANDLORD AND TENANT / RENTAL ACCOMMODATIONS AND CONVERSION DIVISION (RACD)
CIVIL PROCEDURE / COLLATERAL ESTOPPEL EFFECT OF ADMINISTRATIVE DECISION ON L&T CASE
/ UNAPPEALABILITY OF DENIAL OF SUMMARY JUDGMENT / DISBURSAL OF FUNDS IN COURT REGISTRY
Where a Landlord, for whatever reason, has charged an illegal rent over a period of time, the Tenant, on proper administrative or judicial
order, is entitled to a cumulative refund of the difference between the legal rent and that overcharge, an obligation which may be ordered
satisfied, in whole or in part, from funds that have been deposited in the Registry of the Court pursuant to a protective order.
Hedgepeth v Whitman Walker Clinic, et al
D.C.C.A. No. 07-CV-158. Decided Oct. 1, 2009. Before Ruiz and Reid, J.J., and Farrell, Sr. J. Per Curiam, with a concurring opinion by
Judge Ruiz. (Hon. Robert E. Morin, Trial Judge). Jonathan C. Dailey, Esq. for Appellant. Michael L. Sanders, Esq., with Karen R. Turner,
Esq. and Brian J. Nash, Esq. on the brief, for Appellees. DWLR page no. 2209.
TORT LAW
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS DUE TO MISDIAGNOSIS / ZONE OF DANGER RULE
HELD APPLICABLE
The current state of the law regarding the tort of negligent infliction of emotional distress no longer requires a direct physical impact for such
a claim but does maintain that a plaintiff has been in the “zone of physical danger” of the actus reus.
Kabel v DC Board of Elections and Ethics
D.C.C.A. No. 08-AA-1513. Decided Dec. 31, 2008. Before Ruiz, J., Farrell, Ret. J., and Nebeker, Sr. J. Per Curiam. (Petition for Review
of a Decision by the D.C. Board of Elections an Ethics). Daniel E. Johnson, Esq. and Charles R. Spies, on the Cross-Motion for Summary
Reversal. Kenneth J. McGhie, Esq. and Terrie D. Stroud, Esq., on the Motion for Summary Affirmance. DWLR page no. 133.
ELECTION LAW / ADMINISTRATIVE LAW
PARTY “AFFILIATION” BROADLY INTERPRETED
Neither the Board of Elections nor a Court will go behind a person’s voter registration as to party affiliation, if any, for purposes of determining eligibility to hold office.
Minor v Springfield Baptist Church
D.C.C.A. No. 07-CV-460. Decided Jan. 29, 2009. Before Ruiz, Glickman, and Thompson, J.J. (Hon. Patricia A. Broderick, Trial Judge).
Per Curiam Order of the Court. Counsel not given in published opinion. DWLR page no. 317.
APPELLATE PROCEDURE
STANDARD FOR VACATING JUDGMENT TO ALLOW RE-FILING OF NOTICE OF APPEAL
Civil Rule 77(d) requires the Clerk of the Court to mail notices of all orders and judgments to parties or counsel involved. It also provides,
however, that the Clerk’s failure to do so does not affect the time for noticing an appeal therefrom. Nevertheless, Appellate Rule 4(a)(5)(A)
(ii) grants discretion to the Trial Court, on timely motion under Civil Rule 60(b), to vacate and re-enter judgment so as to allow for a timely
appeal de novo, but it does not mandate that the Trial Court do so. In order to review for any alleged abuse of that discretion, the ruling
below must contain sufficient factual detail. If it does not, the matter may be remanded to the Trial Court so that it can provide same, or
reconsider the denial of the Rule 60(b) motion.
Nursing Unlimited Services, Inc. v DC DOES
D.C.C.A. No. 08-AA-111. Decided June 11, 2009. Before Glickman and Blackburne-Rigsby, J.J., and Nebeker, Sr. J. Per Curiam. (Petitioner
for Review of an Order of the D.C. Office of Administrative Hearing). Wendell C. Robinson, Esq. filed a brief for the Petitioner. Brittany S.
Carrington, Pro Se, did not file a brief. DWLR page no. 1285.
NO FORFEITURE OF A HEARING BY THE FAILURE TO APPEAR OF THE PARTY WHO HAS NO BURDEN
OF PROOF
An employer who discharges an employee for “misconduct” has the burden of proof in establishing same by a preponderance of the evidence.
Where both the employee and the employer fail to appear at a scheduled administrative hearing on the merits, the former’s rights are not
forfeited because the employee has no burden of proof. A last-minute oral request for a continuance based on ill-preparedness which is
not accompanied by any other rationale may be denied without an abuse of discretion.
Rolen-Love v DC
D.C.C.A. No. 07-CT-1219. Decided June 16, 2007 and Amended September 10, 2009. Before Reid and Thompson, J.J., and Farrell, Sr.
J. Per Curiam. Justin A. Okezie, Esq., appointed by the Court, for Appellant. John J. Woykosvsky, Asst. D.C. Attny. Gen., with Peter J.
Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Rosalyn Calbert Groce, Dep. D.C. Sol. Gen., on the brief, for Appellee. DWLR
page no. 1981.
FEMALE INDECENT EXPOSURE
Deliberate exposure of a woman’s front vaginal area in a public place is sufficient to qualify as indecent exposure.
30
Tabaka v DC
D.C.C.A. No. CTF-441-05. Decided July 16, 2009. Before Glickman, J. and Schwelb and Farrell, Sr. J.J. (Hon. Henry F. Greene, Trial Judge).
Per Curiam. M. Azhar Khan, on the brief for Appellant. James Klein, D.C. Pub. Def. Serv., with Samia Fam and Joshua Deahl, PDS, filed
a memorandum of amicus curiae on behalf of the Appellant. Linda Singer, D.C. Attny. Gen, Todd S. Kim, D.C. Sol. Gen., Rosalyn Calbert
Groce, Dep. D.C. Sol. Gen., and William Earl, Sr. Asst. D.C. Attny. Gen., on the brief for Appellee. Jeffrey A. Taylor, U.S. Attny., Roy W.
McLeese III, and Mary B. McCord, Asst. U.S. Attnys., filed a memorandum of amicus curiae on behalf of Appellee. DWLR page no. 1537.
TRAFFIC LAW
CERTIFICATE OF NO RECORD HELD INSUFFICIENT WITHOUT MORE TO SUSTAIN CONVICTION FOR
DRIVING WITHOUT A PERMIT
A clerical search of official records resulting in a Certificate of No Record is predicated on official actions that were conducted for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at a trial. Thus, while a clerical officer may
by affidavit or official documentation “authenticate” a copy of an otherwise admissible record, a clerk may not, without an opportunity for
confrontation by the defense, actually create a record for the sole purpose of providing evidence against a defendant. Where a clerk certifies at trial that s/he had searched for a particular relevant record and failed to find it, the clerk is subject to confrontation under the Sixth
Amendment. Absent that safeguard, a clerk’s certificate to that effect is inadmissible over objection without corresponding testimony by the
official who performed the search.
White v DC Water and Sewer Authority
D.C.C.A. No. 07-CV-407 Decided Dec. 18, 2008. Before Glickman and Blackburne-Rigsby, J.J., and Farrell, Ret. J. Per Curiam. (Hon.
Judith E. Retchin, Trial Judge). David A. Branch, Esq. for Appellant. Natalie O. Ludaway, Esq., with Matthew H. Goodman, Esq. and Avis
Russell, Esq. on the brief, for Appellee. DWLR page no. 61.
EMPLOYMENT LAW / INDEPENDENT AGENCY PERSONNEL SYSTEM
NOT RIGHT TO REINSTATEMENT AT COMMON LAW
The D.C. Water and Sewer Authority is an independent authority of the District Government. Pursuant to statutory authority it has established
its own personnel system governing all aspects of employee rights and benefits, thus removing it from the authority of both federal and local
employee regulations. A Rule 59(e) Motion to Alter or Amend Judgment requires a showing of a “manifest error of law or fact” or “manifest
injustice.” At Common Law, there is no authority in a breach of contract employment case for reinstatement to the former position.
Young-Jones v Bell
D.C.C.A. No. 07-FM-510. Decided Mar. 26, 2009. Before Washington, C.J., Kramer, J. and Thompson, J. Per Curiam (Hon. Jerry S. Byrd,
Trial Judge). Warren E. Connelly, Esq. for Appellant. Jay S. Weiss, Esq. for Appellee. DWLR page no. 777.
FAMILY LAW / DIVORCE
EQUITABLE DISTRIBUTION / PROCEEDS FROM SALE OF MARITAL HOME
In a divorce case on remand, the Trial Court must consider and rule on the distribution of real property that was acquired during the marriage and the nature of the recorded title is not necessarily dispositive. Factors such as the age, personal health, occupation, employability,
needs, duration of the marriage, and ability to sustain each party must be taken into consideration.
PRYOR
Grand Hyatt Washington v DC DOES
D.C.C.A. No. 07-AA-374. Decided Dec. 23, 2008. Before Reid and Blackburne-Rigsby, J.J., and Pryor, Sr. J., with Judge Pryor writing
for the Court. (Petition for Review from the D.C. Dept. of Employment Services). Jeffrey W. Ochsman, Esq., for Petitioner. Linda Singer,
D.C. Attny. Gen, Todd S. Kim, D.C. Sol. Gen., Donna M. Murasky, Dep. D.C. Sol. Gen., and William J. Earl, Sr. Asst. D.C. Attny. Gen, filed
a statement in lieu of a brief for Respondent. DWLR page no. 25.
ADMINISTRATIVE LAW / FINAL DISPOSITIVE ORDER
EFFECT OF SETTLEMENT AND RELEASE ON REQUEST FOR ATTORNEY’S FEES
A ruling on a pending request for statutory attorney’s fees in a successful claim before an administrative agency must be embodied in a
“final compensation order” which supports the award (both at the primary adjudication level and in any review proceeding) with sufficientlystated analysis under the pertinent statute, relevance to the various aspects of the claim, and application of a settlement agreement or other
factors involved, or it may be infirm. Such settlements are governed by the law of contracts and ordinarily operate as a merger and a bar
to any further recovery, but a formal finding on that issue is necessary. A subsequent voluntary settlement and release between the parties
comprehending both the claim on its merits and attorney’s fees will not necessarily resolve the issues underlying a previously-filed and still
pending administrative request for same and, under appropriate circumstances may result in a supplement award by the agency’s ruling
on the earlier motion. If, however, the final compensation order does not address this issue with sufficient clarity and ascription of fees,
the case may be remanded for further proceedings before the agency, which is presumed to have special expertise to make first instance
determinations in such matters.
31
Jackson v US
D.C.C.A. No. 07-CF-57. Decided Apr. 30, 2009. Before Pryor, Kern, and Belson, Sr. J.J., with Judge Pryor writing for the Court. MikelMeredith Weidman, D.C. Pub. Def. Serv., with James Klein and Jaclyn Frankfurt, D.C. Pub. Def. Serv., on the brief, for Appellant. Kristina
L. Ament, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III and Florence Pan, Asst. U.S. Attnys., on the brief,
AGGRAVATED ASSAULT REQUIREMENTS
A conviction for aggravated assault requires the infliction of “serious bodily injury” which, at a minimum requires injury that involves a
substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or loss of impairment of a bodily
member of function.
REID
DC v Chambers
D.C.C.A. No. 07-CV-173 Decided Feb. 19, 2009. Before Reid, Fisher, and Blackburne-Rigsby, J.J., with Judge Reid writing for the Court.
(Hon. Geoffrey M. Alprin, Trial Judge). Donna M. Murasky, Sr. Asst. D.C. Attny. Gen., with Linda Singer, D.C. Attny. Gen., Todd S. Kim, D.C.
Sol. Gen., and Edward E. Schwab, Dep. D.C. Sol. Gen., for Appellant. Kim D. Brooks-Rodney, Esq., for Appellee. DWLR page no. 521.
TORT LAW
POLICE VEHICLES / “EMERGENCY RUN” DEFINED / GROSS NEGLIGENCE / STANDARD OF PROOF
The rules governing police “hot pursuit” of other vehicles require that the officer have a “genuine belief” that someone in the vehicle has
committed a serious felony, all emergency equipment be activated, and Police Dispatch be notified by radio. While these circumstances
constitute an “emergency run,” the relevant statute speaks only of the officer’s perceived need to “proceed expeditiously” and does not
require any type of pursuit in order to qualify as an emergency run. If an accident occurs on such a run, the District is protected by “qualified immunity” from tort liability as to “ordinary negligence.” Only “gross negligence,” which must be shown by the higher standard of “clear
and convincing evidence,” can result in tort liability during an emergency run. Although a police officer’s intent prior to such a pursuit is
to be considered in determining whether there was an emergency, the facts and actions of the situation may otherwise be determinative.
The pertinent statute requires a “broad and expansive interpretation” and, under appropriate circumstances, the Court may determine as a
matter of law that such a pursuit constitutes an emergency run. If so, the jury must be instructed that the gross negligence and clear and
convincing evidence standards govern its determinations.
Digsby v US
D.C.C.A. No. 06-CF-1585. Decided Oct. 1, 2009. Before Reid and Glickman, J.J., and Belson, Sr. J., with Judge Reid writing for the Court.
(Hon. James E. Boasberg, Trial Judge). Jonathan W. Anderson, D.C. Pub. Def. Serv., with James Klein and Samia Fam, PDS, on the brief,
for Appellant. Erin Walsh, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Florence Pan, David S. Johnson, and
Perham Gorji, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2289.
IMPROPER USE OF DEA-7 FORM / IMPACT ON CONVICTIONS FOR POSSESSION WITH INTENT TO
DISTRIBUTE ILLEGAL DRUGS / AVAILABILITY OF LESSER-INCLUDED OFFENSE CONVICTION
The Government’s use of DEA laboratory reports denominating suspected illegal drugs as controlled substances is no longer permissible
without calling as a testimonial witness the chemist who made the report. Although there is a possibility under certain circumstances
that the heretofore common use of these forms might be found to be “harmless error beyond a reasonable doubt,” the other independent
Government evidence on such a drug charge must effectively be deemed “overwhelming” and must not implicate substantial constitutional
rights such as the right to stand trial on the charge as indicted or the right to confront adverse witnesses. Neither a field test standing alone
nor in combination with a defendant’s tacit admission as to the nature of the alleged drugs is sufficient to define the chemical nature of an
alleged controlled substance. It is unclear whether the relevant statute permits the Government to charge an offense without specifying the
identity of the controlled substance in question, but where it does so in explicit detail, ordinarily it is a violation of the Fifth Amendment’s
requirement that a felony offense be charged by a grand jury indictment to allow the entry of a conviction on a lesser included charge under
these circumstances.
Doreus v US
D.C.C.A. No. 06-CF-247. Decided Jan. 29,2009. Before Washington, Chief Judge, and Reid and Glickman, J.J., with Judge Reid writing
for the Court and a concurring opinion by Judge Glickman. (Hon. Harold L. Cushenberry, Trial Judge). Richard S. Stolker, Esq., appointed
by the Court, for Appellant. Mary Chris Dobbie, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III and Opher
Shweiki, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 290.
INADMISSIBILITY OF DEA DRUG REPORT /
INAPTNESS OF THE LESSER INCLUDED CHARGE OF ATTEMPT
In a case charging Possession With Intent to Distribute Cocaine in which other corroborating evidence against the accused was not strong,
the use of a confirmatory report from the DEA that the evidence seized was in fact a controlled substance, without the corroborating testimony
32
of the chemist who produced the written report, was inadmissible hearsay in violation of the Sixth Amendment’s Confrontation Clause, even
though the events occurred before the Court of Appeals recently ruled to that effect. Nor could the case be remanded with instructions to enter
a conviction on the lesser-included offense of Attempted Possession, because the same evidence would have been necessary to convince
a jury that the items which were the target of the attempt were themselves illegal drugs and not, for example, imitations or counterfeits.
Evans v Dreyfuss Brothers, Inc & Tenacity 919 L Street, LLC
D.C.C.A. Nos. 07-CV-957, 07-CV-454 & 07-CV-678. Decided May 14, 2009. Before Reid, J., and King and Farrell, Sr. J.J., with Judge
Reid writing for the Court. (Hon. Judith P. Retchin, Trial Judge). Andre P. Barber, Esq., Appellant. John J. Hathaway, Esq., with Thomas C.
Mugavero, Esq., on the brief, for Appellee. DWLR page no. 1141.
CIVIL PROCEDURE
APPEALABILITY OF ARBITRATION CLAUSE ORDER
The hallmark of a final order is one that disposes of the whole case on its merits so that the court has nothing remaining to do but execute the
judgment or decree already entered. In matters of arbitration, the D.C. Uniform Arbitration Act specifies orders that are final and appealable,
which do not include orders requiring arbitration, although those which deny it are appealable. Orders imposing a stay of litigation are not appealable. A dismissal without prejudice renders the proceedings a nullity and leaves the parties as if the action had never been brought.
Fields v Mayo
D.C.C.A. No. 06-FM-623. Decided Oct. 29, 2009. Before Ruiz, Reid, J.J., and Steadman, Sr. J., with Judge Reid writing for the Court.
(Hon. J. Michael Ryan, Trial Judge). Peter C. Pfaffenroth, Esq., with Jeffrey T. Green, Esq., on the brief, for Appellant. Scott L. Cunningham,
Esq., Guardian Ad Litem, filed a statement in lieu of a brief on behalf of the minor child in the case. Neither biological parent filed a brief or
entered any appearance. DWLR page no. 2297.
CHILD CUSTODY / PARENTAL PRESUMPTION
D.C. SAFE AND STABLE HOMES FOR CHILDREN ACT OF 2007 / DE FACTO PARENT
The D.C. Safe and Stable Homes for Children Act of 2007 created a category styled “de facto parent” pursuant to which any person who
has taken on full and permanent responsibilities as a child’s parent and lived with the child in the same household for at least ten of the last
twelve months is deemed a parent for the purposes of filing a complaint for custody of the child. Nevertheless, while parental rights may be
forfeited on a proper showing, the fundamental liberty interest of natural parents in the care, custody, and management of their child does
not evaporate simply because they have not been model parents or have lost temporary custody of their child. A Trial Court may accept
or reject the recommendation of a child’s Guardian Ad Litem, in the exercise of its sound discretion, in order to achieve a placement in the
best interests of the child.
Grayson v AT&T Corp., et al
D.C.C.A. No. 07-CV-1264. Decided Sept. 17, 2009. Before Reid and Kramer, J.J., and Belson, Sr. J., with Judge Reid writing for the Court.
(Hon. Melvin R. Wright, Trial Judge). Frederick D. Cooke, Jr., for Appellant. Daniel R. Forman, Esq. and Jay P. Lefkowitz, Esq., with
Charlotte E. Gillingham, Esq., Ashley N. Bailey, Esq., Michael F. Williams, Esq., Jennifer K. Hardy, Esq., Gregory L. Sidmore, Esq., John
E. Villafranco, Esq., and William M. Bailey, Esq. on the brief, for Appellees. DWLR page no. 2189.
REMEDIES
D.C. UNCLAIMED PROPERTY AND FALSE CLAIMS ACT / PRE-REQUISITES FOR QUI TAM “WHISTLEBLOWER” RECOVERY / “PUBLIC DOMAIN” PUBLICATIONS DEFINED
As the basis for a qui tam action, the D.C. False Claims Act requires that a plaintiff have direct and independent knowledge of the information
underlying the complaint and be the original source of that information, rather than deriving it from any source already in the public domain.
The purpose of circumscribing the source of such information is to encourage private citizens who have such first-hand knowledge to come
forward expose the fraud while at the same time avoiding civil actions by opportunists attempting to capitalize on public information without
seriously contributing to its disclosure. In general, technical journals constitute news media so that information contained therein may be
deemed to have already been published in the public domain. If so, and there is a substantial identity between the facts already published
and the allegations in the law suit, the “independent knowledge” pre-requisite is not met. The current state of the separate D.C. Consumer
Protection and Violation of False Claims Act does not require that a plaintiff suffer personal “injury in fact” in order to bring a suit in the
interests of the general public. Moreover, that Act should be construed and applied liberally to promote is purpose.
Green v US
D.C.C.A. No. 06-CF-1313. Decided June 25, 2009. Before Reid, Glickman, and Fisher, J.J., with Judge Reid writing for the Court. (Hon.
Lynn Leibovitz, Trial Judge). James Mangiafico, Esq., with Mary Kennedy on the brief, for Appellant. Anne Y. Park, Asst. U.S. Attny., with
Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Elizabeth Trosman, B. Patrick Costello, Jr., and Suzanne G. Curt, Asst. U.S. Attnys. on
INDICATIVE GESTURE AS BASIS FOR PROBABLE CAUSE FOR ARREST /
PUBLIC SAFETY EXCEPTION
A furtive or indicative gesture which an experienced officer in the field associates with a criminal act, such as a suspect’s instinctively or
spontaneously touching his front midsection where a concealed handgun is typically carried, as police approach, may provide the basis
for a stop, detention, interrogation, and arrest, together with seizure of contraband incident thereto. Interrogation in such a situation may
33
be allowed without usual custodial formalities under the Public Safety Exception. The test is whether an investigating police officer could
reasonably believe that criminal activity is afoot. This practice, however, is not to be routine.
Ingram v US
D.C.C.A. No.06-CF-668. Decided July 23, 2009. Before Reid, Glickman, and Kramer, J.J., with Judge Reid writing for the Court. (Hon.
Frederick H. Weisberg, Trial Judge). Robert S. Becker, Esq., appointed by the Court, for Appellant. Elizabeth H. Danello, Asst. U.S. Attny.,
Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, Thomas J. Tourish, Jr., and Glenn S. Leon, Asst. U.S. Attnys., on the brief, for
Appellee. DWLR page no. 1621.
RULES OF EVIDENCE / FED. R. EVID. 804(b)(3)
STATEMENT AGAINST PENAL INTEREST / LAUMER FACTORS
A major exception to the hearsay rule is for a statement tending to expose the Declarant to criminal liability and offered as tending to exculpate the accused is admissible when the Declarant is unavailable and corroborating circumstances clearly indicate the trustworthiness
of the statement. Key factors for determining the critical element of trustworthiness are (1) the timing of the statement after the crime, (2)
the existence of corroborating evidence, and (3) the extent to which the Declarant is aware that the statement potentially exposes him to
criminal liability. Perhaps the most important factor is the degree to which the statement is corroborated by other admissible evidence. The
time interval between the crime and the statement is also a significant consideration with three months having been deemed too long a
lapse, allowing for time to consider and fabricate it. Finally, the evidence must be strong enough even to show that the declarant was aware
that he was placing himself at risk of criminal liability when he made the statement.
In re C.B.
Nos. 07-FS-438 & -449. Decided Nov. 25, 2009. Before Washington, C.J., Reid, J., and Pryor, Sr. J., with Judge Reid writing for the Court.
(Hon. S. Pamela Gray, Magistrate Judge; Hon. Cheryl M. Long, Reviewing Judge). Leslie J. Suskind, Esq., appointed by the Court, for
Appellant. Alice Stevens, Asst. D.C. Attny. Gen., with Peter J. Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Donna M. Murasky,
Dep. D.C. Sol. Gen., on the brief, for Appellee. DWLR page no. 2609.
GUARDIANSHIP STATUTE EVALUATION OF THE QUALITY OF THE RELATIONSHIP BETWEEN WARD
AND GUARDIANS
With regard to a pre-teen ward in a guardianship case, while a Trial Court may interview the child in private, if it excludes the other parties
and their counsel, it must promptly inform these parties of the results of the interview, particularly regarding any adverse statements that were
forthcoming. Otherwise, necessary parties are deprived of their constitutional right to hear all the evidence and cross-examine on same.
In re Petition of J.T.B.
D.C.C.A.No. 08-FS-557 (Decided Mar. 26, 2009). Before Reid, Glickman, and Thompson, J.J., with Judge Reid writing for the Court.
(Magistrate Judge Carol Dalton, Trial Judge; Associate Judge Linda K. Davis, Reviewing Judge). Monica Myles, Esq., appointed by the
Court, for Appellant Mother. Anthony R. Davenport, Esq., appointed by the Court, for Appellee. Catherine Ferrando, Asst. D.C. Attny. Gen.,
with Peter J. Nickles, Acting Attny. Gen., and Todd S. Kim, D.C. Sol. Gen. and Donna M. Murasky, Dep. D.C. Attny. Gen., on the brief,
for the District of Columbia. Nan R. Hooven, Guardian Ad Litem, for M.W., the Child, joined in the argument submitted by the District of
Columbia. DWLR page no. 797.
FAMILY COURT / ADOPTION LAW / HARMLESS ERROR / “INDEPENDENT ADOPTIVE PARENT”
RULE 52 FINDINGS OF FACT AND CONCLUSIONS OF LAW MUST BE IN WRITTEN FORM AND
MUST PRECEDE THE FINAL ORDER OF ADOPTION
The plain language of Adoption Rule 52(a) requires that final Findings of Fact and Conclusions of Law must be in written form and must
precede the Final Order of Adoption in such a case.
Teal v US
D.C.C.A. No. 07-CF-382. Decided June 25, 2009. Before Reid, Fisher, and Blackburne-Rigsby, J.J., with Judge Reid writing for the Court.
(Hon. James E. Boasberg, Trial Judge). O. Dean Sanderford, D.C. Pub. Def. Serv., with James Klein and Jaclyn Frankfurt, PDS, on the
brief, for Appellant. Sarah T. Chasson, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III and Chrisellen R. Kolb, Asst.
PROSECUTORIAL MISCONDUCT PUTATIVE
INTERFERENCE WITH PROSPECTIVE TESTIMONY OF DEFENSE CHARACTER WITNESS
To show prosecutorial interference with a defense witness in a criminal case the defendant must generally show that he was deprived of
material and exculpatory evidence that could not be reasonably obtained by other means. Included in that burden is the obligation to make
at least a plausible showing of how the testimony from the proposed witness would have been both material and favorable to the defense.
Such a showing must demonstrate that the Government’s action amounts to “substantial interference” which causes loss or erosion of testimony that is both material to the case and favorable to the accused. The defendant must also prove that the Government acted improperly.
To permit him an opportunity to do so, the Trial Court must conduct “a searching substantive inquiry” via a hearing on the issue, following
which factual findings must be made. Reversal will only be warranted if the Government’s conduct interfered substantially with a witness’
free and unhampered choice to testify.
34
RUIZ
1220-1250 Twenty-Third Street Condo. Unit Ass’n, Inc. v Bolandz
D.C.C.A. No. 06-CV-838. Decided Aug. 27, 2009. Before Ruiz and Thompson, J.J., and King, Sr. J., with Judge Ruiz writing for the Court.
(Hon. Rhonda Reid-Winston, Trial Judge). Jeffrey M. Bamberger, Esq., with Benny L. Kass, Esq. on the brief, for Appellant. Christopher
“Kip” Schwartz, Esq., with C. Dennis Southard IV, Esq., on the brief, for Appellee. DWLR page no. 1914.
CONDOMINIUM LAW
CONDOMINIUM ASSOCIATION IMPOSITION OF SANCTIONS ON OWNER / “ARISING OUT OF” DEFINED
IN CONDOMINIUM INSTRUMENT / AWARD OF ATTORNEY’S FEES
Sanctions imposed on the owner a condominium unit should first be approved by the condominium association at large. The phrase “arising out of” regarding the award of attorney’s fee to a prevailing unit owner in a dispute over sanctions imposed is to be broadly interpreted.
The award of attorney’s fees lies within the broad discretion of the trial court and will not be disturbed without a strong showing of abuse
of discretion.
Allen v Schultheiss, et al
D.C.C.A. No. 06-CV-1445. Decided Oct. 1, 2009. Before Ruiz and Blackburne-Rigsby, J.J., and Steadman, Sr. J. (Hon. Russell F. Canan,
Trial Judge). Morton A. Faller, Esq., with Stephen A. Metz, Esq. on the brief, for Appellant. Robert C. Gill, Esq., with Shannon H. Bates, Esq.
on the brief, for Appellees William J. Schultheiss and Elizabeth M. Twarog. John P. Lynch, Esq. on the brief for Appellee Troese Hughes
Title Services, Inc. Bernard A. Gray, Esq. on the brief for Appellees Alberta Nero, Catherine Nero, Curtis Nero, Jimmy Nero, and Ronald
Nero. Amy R. Mix, Esq., legal Counsel for the Elderly, on the brief for Appellee Lois Thomas. DWLR page no. 2233.
PROPERTY LAW
A TENANCY BY THE ENTIRETY MAY BE HELD AS A LIFE ESTATE
A tenancy by the entirety may be held as a life estate. Upon the death of one of the spouses, the survivor succeeds to the balance of the
life estate for the remainder of the survivor’s own life and during his or her lifetime may not convey any more of the estate than she owns
thereunder.
Etchebarne-Bourdin et al v Radice et al
D.C.C.A. No. 05-CV-1059. Decided Oct. 22, 2009. Before Ruiz and Blackburne-Rigsby, J.J., and Schwelb, Sr. J., with Judge Ruiz writing
for the Court. (Hon. Noël Anketell Kramer, Trial Judge). Richard W. Balsamo, Esq. for Appellants. Heather N. Ellison, Esq., with Paul T.
Walkinshaw, Esq. of the Va. Bar, pro hac vice, and Richard L. Nagle, Esq., on the brief, for Appellees. DWLR page no. 2269.
CIVIL PROCEDURE
LONG-ARM JURISDICTION MAY BE PREDICATED ON A PERSISTENT COURSE OF CONDUCT IN THE
DISTRICT WITHOUT ANY REQUIREMENT TO SHOW ADDITIONAL FACTORS LISTED IN THE STATUTE
AND NEED NOT BE RELATED DIRECTLY TO THE CLAIM
Under the D.C. Long-Arm Statute, where an out-of-state defendant has engaged in a regular course of conduct in otherwise doing business
and the act complained of is alleged to have caused injury in the District, and the claim arises from such act and injury, no additional nexus
need be shown between the claim and the persistent course of conduct. The additional nexus activities listed in the Statute are “plus factors”
intended to ensure that there are at least minimum contacts with the forum sufficient to satisfy due process concerns so that the District,
like its contiguous neighbors, can benefit from the broadest protection in this regard that due process allows.
Harrington v Trotman
D.C.C.A. No. 06-CV-1294. Decided Nov. 12, 2009. Before Ruiz and Blackburne-Rigsby, J.J., and King, Sr. J., with Judge Ruiz writing for
the Court. (Hon. Neal E. Kravitz, Trial Judge). Alice Harrington, Appellant Pro Se. No brief or appearance was filed on behalf of Appellee.
DWLR page no. 2465.
LAW OF CONTRACTS
UNJUST ENRICHMENT
A Trial Court may not render a judgment based on “unjust enrichment” unless no contract exists or unless there is some basis to set aside
the contract as unenforceable, such as the Statute of Frauds, the plaintiff’s own breach, impracticability of performance, or fraud, misrepresentation, duress, mistake, or incapacity. In a case of breach of contract at law a court may not grant equitable relief as to liability.
In re E.H.
D.C.C.A. No. 05-FS-1549. Decided Mar. 26, 2009. (Hon. John M. Mott, Trial Judge). Shilpa S. Satoskar, D.C. Public Def. Serv., with James
Klein and Jaclyn S. Frankfurt, PDS, on the brief, for Appellant. Sidney R. Bixler, Asst. D.C. Attny Gen., with Linda Singer, D.C. Attny. Gen.,
Todd S. Kim, D.C. Sol. Gen., and Rosalyn Calbert Groce, Dep. D.C. Sol. Gen, on the brief, for Appellee. DWLR page no. 713.
FIRST DEGREE SEXUAL ASSAULT / ANAL SODOMY / REQUIREMENT OF “PENETRATION, HOWEVER
SLIGHT” / “ON OR ABOUT” / LESSER INCLUDED OFFENSE
A conviction for first degree sexual abuse (anal sodomy) is a specific intent felony which requires evidence of the penetration of the rectum,
however slight. Denial of penetration by the complaining witness may result in an acquittal. Additional evidence must also confirm that the
35
offense occurred within a reasonable time of “on or about” the date charged. Because second degree sexual abuse is a general intent
crime, there is a possibility that a court could rule that it is not a lesser-included offense.
In Re Robert W. Mance, III
D.C.C.A. No. 06-BG-890. Decided Sept. 24, 2009. Before Ruiz, Blackburne-Rigsby, and Thompson, J.J., with Judge Ruiz writing for the
Court. Jacob A. Stein, Esq., with George A. Fisher, Esq. on the brief, for Respondent. Elizabeth A. Herman, Dep. Bar Counsel, with Wallace
E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Sr. Asst. Bar Counsel, on the brief, for the Office of Bar Counsel. Elizabeth Branda, Exec.
Attny., filed a statement in lieu of a brief for the Board on Professional Responsibility. DWLR page no. 2085.
[Editor’s Note: The Daily Washington Law Reporter publishes this important Governing Court Opinion on a vital issue of Professional
Responsibility in conformity with the Court’s own expression that it was “confident that the D.C. Bar … will take steps to inform the Bar and
provide attorneys with helpful guidance on how to conform their practice to the rule we announce in this opinion.” In so doing, the DWLR
has also tried its best to present a balanced interpretation, pointing out that Bar Counsel clinically prosecuted this case to accomplish a
needed refinement of an important rule on professional responsibility and that the Lawyer who was disciplined in this matter “did not act
dishonestly,” as the Court itself found.]
PROFESSIONAL RESPONSIBILITY
A FLAT FEE, LIKE ANY OTHER RETAINER, ORDINARILY MUST BE DEPOSITED INTO A LAWYER’S TRUST
ACCOUNT AND WITHDRAWN ONLY TO THE EXTENT ACTUALLY EARNED
Absent informed and explicit written client consent to the contrary, the payment of a flat fee to a lawyer for the performance of specific
task(s), as contrasted with a typical retainer for the continuing performance of future work, must not only be reasonable but it must also be
deposited into the lawyer’s trust account and withdrawn only to the extent actually earned, subject to cancellation of the agreement by the
client and the return of any unearned balance.
Kenyon Ltd. Partnership, et al v 1372 Kenyon Street NW Tenants’ Association, et al
D.C.C.A. Nos. 07-CV-291 & -292. Decided Sept. 3, 2009. Before Ruiz, J., and Terry and Farrell, Sr. J.J., with Judge Ruiz writing for the Court.
(Hon. Robert E. Morin, Trial Judge). Clifton M. Mount, Esq. for Appellants. Ann M. Mason, Esq., with Kent R. Morrison, Esq., Daniel A. Sasse,
Esq., Michael L. Martinez, Esq., Jennifer R. Devery, Esq., David M. O’Brien, Esq., on the brief, Appellees. DWLR page no. 2201.
LAW OF CONTRACTS
UNCONSCIONABILITY
A purchaser of a lease agreement steps into the shoes of the seller and is bound by the terms of the agreement as written, irrespective of
ensuing developments of the purchaser’s own making. If it turns out to be a bad business investment it is the purchaser who must bear any
loss. An unsupported conclusory allegation that a contract is unenforceable as unconscionable is not enough. Unconscionability requires an
absence of meaningful choice on the part of one of the parties plus contract terms which are unreasonably favorable to the other party.
Molla v Sanders
D.C.C.A. No. 07-CV-294. Decided Sept. 17, 2009. Before Ruiz, Glickman, and Thompson, J.J., with Judge Ruiz writing for the Court. (Hon.
Thomas J. Motley, Trial Judge). Timothy P. Cole, Esq. for Appellant. Hughie D. Hunt, Esq. for Appellee. DWLR page no. 2125.
LANDLORD AND TENANT
FORECLOSURE SALE / WRONGFUL DETAINER DISTINGUISHED FROM EJECTMENT / ESTOPPEL
The District of Columbia does not recognize a cause of action for “wrongful detainer,” but does recognize a consequential cause of action
for ejectment. No distinction exists between a party who has come into ownership of real property as a result of a mortgage default and
any other owner. A judgment in one case confirming the continuance of a lease and the corresponding tenancy surviving a transfer of the
property does not necessarily constitute a ruling with controlling effect on any subsequent suit regarding a particular term of that lease,
including the amount of rent.
Travelers Indemnity Co. v DC DOES and Vertans, Inc.
D.C.C.A. No. 05-A-1290. Decided July 9, 2009. Before Washington, C.J., Ruiz, J., and Farrell, Sr. J., with Judge Ruiz writing for the Court.
(On Petition for Review of a Decision of the compensation Review Board). D. Stephenson Schwinn, Esq., with David B. Stratton, Esq.
on the brief, for Petitioner. David A. Slacier, Esq., for Intervenor. Robert J. Spagnoletti, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and
Edward E. Schwab, Dep. D.C. Sol. Gen., filed a statement in lieu of a brief for Respondent. DWLR page no. 1561.
ADMINISTRATIVE LAW / RETROACTIVE APPLICATION OF NEW RULE
NO JURISDICTION AFTER REJECTION OF CLAIMS EXAMINER’S INITIAL MEMORANDUM
AND REQUEST MADE FOR FORMAL HEARING, EVEN IF LATER WITHDRAWN
The filing of an application for a formal hearing de novo after a Claims Examiner’s initial Memorandum of Informal Conference has been rejected by one of the parties, even if the application is later withdrawn, divests the Office of Workers Compensation of jurisdiction to enter a final
order in a disability proceeding. The promulgation of a new administrative rule will be applied to all cases pending at the time it issues.
WMATA v DC DOES and Millhouse
D.C.C.A. Decided October 1, 2009. No. 07-AA-888. Before Ruiz, Fisher, and Blackburne-Rigsby, J.J., with Judge Ruiz writing for the
Court. (Petition for Review from the D.C. Dep’t of Employment Services). Sarah O. Rollman, Esq., with Carol B. O’Keefe, Esq. and Mark F.
Sullivan, Esq. on the brief, for Petitioner. Peter J. Nickles, D.C. Atty. Gen., Todd S. Kim, D.C. Sol. Gen, Donna M. Murasky, Dep. D.C. Attny.
Gen, and Pastell Vann, Sr. Asst. D.C. Attny. Gen., filed a statement in lieu of a brief for Respondent. Eric M. May, Esq. for Kelly Millhouse,
36
Intervenor. DWLR page no. 2665.
ADMINISTRATIVE LAW
STATUTE OF LIMITATIONS AS APPLIED TO EXACERBATION OF PREVIOUS INJURY
Ordinarily an employee who has already been awarded disability compensation must file for a modification of that award within one year.
Where, however, a subsequent claim based on an exacerbation of the same injury occurs beyond that time period, it is considered a new
claim not subject to that limitation period, so long as the rules on collateral estoppel and res judicata are not violated.
SCHWELB
Tsintolas Realty Co. v Mendez, et al
D.C.C.A. No. 08-CV-730. Decided Nov. 25, 2009. Before Blackburne-Rigsby and Thompson, J.J., and Schwelb, Sr. J., with Judge Schwelb
writing for the Court. (Hon. Gerald Fisher, Trial Judge). Suzanne M. Tsintolas, Esq. with Jonathan C. Windle, Esq. on the brief, for Appellant.
Kenneth J. Nichols, Esq., with whom John H. Brown, Esq. on the brief, for Appellees. DWLR page no. 2601.
LANDLORD AND TENANT LAW
ENFORCEABILITY OF L&T SETTLEMENT AGREEMENT / CONFIDENTIALITY PROVISION / DAMAGES
In order for part of a proceeding or a settlement agreement to be covered by a confidentiality provision there must be a formal order of the
Court on the record to place those aspects under seal; failure to do so leaves the proceedings or documents remaining open on the pubic
record. There can be no monetary recovery unless the plaintiff has suffered some harm. A Judge presiding in the L&T Branch can only award
possession of the premise and rent arrearages. That Branch has no jurisdiction to award damages on collateral claims, such as enforcement
of a settlement agreement, in either contract or tort.
STEADMAN
Ackerman v Abbott
D.C.C.A. No. 08-CV-351. Decided Sept. 3, 2009. Before Ruiz and Oberly, J.J., and Steadman, Sr. J., with Judge Steadman writing for the
Court. (Hon. Judith E. Retchin, Trial Judge). John T. Szymkowicz, Esq., with J.P. Szymkowicz, Esq. on the brief, for the Appellant. George
B. Huckabay, Esq. for Appellee. DWLR page no. 1949.
PROPERTY LAW
DOCTRINE OF AFTER-ACQUIRED TITLE
Under the Doctrine of After-Acquired Title, if a grantor purports to transfer ownership of real property to which s/he lacks legal title at that time
but subsequently acquires legitimate title, the after-acquired title inures by operation of law to the benefit of the grantee. A grantor cannot
defeat the application of the Doctrine simply by re-conveying the property to another because the prior grantee has priority.
Choharis v State Farm Fire and Casualty Co.
D.C.C.A. No. 06-CV-234. Decided Dec. 18, 2008. Before Reid, J., and Ferren and Steadman, Sr. J.J., with Judge Steadman writing for
the Court. (Hon. Anna Blackburne-Rigsby and Hon. Russell F. Canan, Trial Judges). Peter C. Coharis, Esq., Appellant Pro Se, with Paul
Y. Kiyonaga, Esq., on the brief. Michael J. Budow, Esq., with Richard E. Schimel, Esq., and Laura Basem Jacobs, Esq., on the brief, for
LAW OF CONTRACTS
NO BAD FAITH TORT CAUSE OF ACTION ASSOCIATED WITH BREACH OF CONTRACT
No cause of action exists for a hybrid bad faith tort/breach of contract cause of action. Bad faith conduct can be compensated within breach
of contract principles or via separate counts in a complaint for torts associated with malfeasance, such as fraud, intentional or negligece
infliction of emotional distress, negligence, and conspiracy. A tort claim must exist in its own right, independent of the contract, and any
duty upon which the tort is based must flow from considerations other than the contractual relationship, even if a willful, wanton or malicious
breach of contract is alleged and proven. Likewise, punitive damages do not lie in contract actions but are limited to torts and, even there,
require circumstances of “extreme aggravation” stemming from conduct that is outrageous, malicious, wanton, grossly fraudulent, reckless,
or in disregard of a person’s rights.
Larry v National Rehabilitation Hospital
D.C.C.A. No. 07-AA-1225. Decided June 11, 2009. Before Belson, Terry, and Steadman, Sr. J.J., with Judge Steadman writing for the
Court. Sharon Larry, Petitioner Pro Se. Keith J. Harrison, Esq. and Christopher P. Calsyn, Esq. on the brief for Respondent. DWLR page
no. 1337.
“GROSS MISCONDUCT” MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE
The burden is on the employer to show that an employee’s performance constitutes “gross misconduct” so as to justify termination and preclude the award of unemployment compensation. The D.C. Code of Municipal Regulations defines this term as “an act which deliberately or
willfully violates the employer’s rules … [or] deliberately or willfully threatens or violates the employer’s interests, shows a disregard for the
employee’s obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee.” The
phrase “deliberately or willfully” requires something more than a simple absence from work. The fact of absences or tardiness alone cannot
37
suffice as proof of gross misconduct, without consideration of the bases for such absences or tardiness, even where they are repeated.
When the employee proffers evidence suggesting that such actions were sufficiently excusable to negate willfulness or deliberateness, the
burden shifts back to the employer to disprove such evidence. Such a finding is essential to a determination that an employee’s absence
was “willful or deliberate” to serve as a predicate for an ultimate finding of gross misconduct.
McCrae and Miller v US
D.C.C.A. Nos. 99-CF-849 & -1534. Decided Sept. 10, 2009. Before Ruiz and Kramer, J.J., and Steadman, Sr. J., with Judge Steadman
writing for the Court. (Hon. Mary Ellen Abrecht, Trial Judge). Mara Silver, D.C. Pub. Def. Serv., with James Klein and Sandra K. Levick,
PDS, on the brief, for Appellant Miller. Lisa D. Chanel, Esq., appointed by the Court, for Appellant McCrae. John P. Gidez, Asst. U.S. Attny.,
with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, Thomas J. Tourish, Jr., and Cynthia G. Wright, Asst. U.S. Attnys., on the brief,
DURESS DEFENSE
As a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for
a reasonable jury to find in his favor, but where there is no factual or legal basis for a requested instruction a trial court may refuse to instruct
the jury on that defense. A duress defense requires evidence that the defendant’s participation in the crime was predicated on a reasonable belief that he would suffer immediate serious bodily injury or death if he did not participate in the crime and that he had no reasonable
opportunity to escape the danger unless he did so. The Government then bears the burden to prove beyond a reasonable doubt that the
defendant did not act under duress. A co-defendant’s duress defense, by itself, is not a basis for severance, even though a co-defendant’s
presentation of evidence may inculpate the other defendant.
Peart v DCHA
D.C.C.A. No. 07-CV-1003. Decided June 4, 2009. Before Wagner, Nebeker, and Steadman, Sr. J.J., with Judge Steadman writing for the
Court. (Hon. Robert E. Morin, Trial Judge). Peter Wilson, Esq., with Barbara McDowell, Esq., and Julie Becker, Esq., Legal Aid Society,
a David A. Reiser, Esq., on the brief, for Appellee. Alex Chintella, Esq., with Frederick A. Douglas, Esq., with Frederick A. Douglas, Esq.,
Margaret A. Douglas, Esq., Margaret McFarland, Esq., and Hans Froelicher, IV, Esq., Acting General Counsel, D.C. Housing Authority, on
the brief for Appellee. DWLR page no. 1253.
EQUITY / UNJUST ENRICHMENT / COMMON FUND DOCTRINE / MEASURE OF RECOVERY
SECTION 8 HOUSING / RENT ABATEMENT
A Section 8 tenant may assert an unjust enrichment claim even though the moneys involved are public funds. When such a recovery is
made by a tenant and the recovered funds flow to the Housing Authority, the latter may be deemed to have been “unjustly enriched” by the
benefit and, in that event, would be required to compensate the tenant for the efforts. Their shared interests in the result require a contribution from the party with the greater interest. A similar result would obtain under the “common fund doctrine” which allows for a departure
from the American Rule that each party bears its own attorney’s fees and costs, so that an award may be made to a party who shares a
common interest perseveres or recovers a fund for the benefit of others, as a means of equitably spreading litigation costs proportionately
among all the beneficiaries, as in done in cases of subrogation, worker’s compensation, and class actions. The proper measure of recovery
is restitution based on the amount of the defendant’s gain, rather than the plaintiff’s loss and thus the amount of the auxiliary award for fees
and costs is, in turn, to be measured by the value of the services which were provided, not by the actual costs incurred in so doing.
Redman v Potomac Place Associates, LLC
D.C.C.A. No. 07-DV-35 & 07-DV-1255. Decided May 28, 2009. Before Ruiz and Fisher, J.J. and Steadman, Sr. J., with Judge Steadman
writing for the Court. Richard J. Bianco, Esq. for the Appellant. Gregory T. DuMont, Esq., with Roger D. Luchs, Esq. on the brief, for Appellee.
DWLR page no. 1185.
CONDOMINIUM CONVERSION
PREREQUISITES FOR EXCEPTIONS
The D.C. Condominium Conversion Act requires that an owner converting from rental units to condominiums must give the current tenants
at least a 120-day notice and offer them the right of first refusal on purchasing their own units or, alternatively, to vacate the premises by
a date certain with the owner providing a fair sum for relocation expenses. The statute does provide exceptions for qualifying elderly and
disabled tenants who, if otherwise in compliance, may not be evicted and are not required to make this choice. Here, however, a tenant
who allowed the notice period to expire before the statutory exception took effect was ruled not to have been a valid tenant after the end of
the notice period and held not to have the right to assert any tenant exception under the statute.
Wright-Taylor v Howard University Hospital
D.C.C.A. No. 07-AA-1173. Decided May 28, 2009. Before Wagner, Nebeker, and Steadman, Sr. J.J., with Judge Steadman writing for
the Court. (Petition for Review from an Order of the D.C. Office of Administrative Hearings). Rona Wright-Taylor, Pro Se Petitioner. No
appearance or brief was filed by the Respondent. DWLR page no. 1205.
ADMINISTRATIVE LAW / TIME LIMIT FOR APPEAL
RULE LIMITATION AND STATUTORY LIMITATION DISTINGUISHED
Only a statutory ten-day period within which an appeal must be filed is mandatory and jurisdictional. In contrast, a ten-day period set by rule
for the purpose of processing a claim is not strictly jurisdictional but is subject to equitable exceptions. The ten-day rule established by the
38
D.C. Unemployment Compensation Act for appeals from rulings on initial claims is both complex and obscure as to any statutory-prescribed
time limitation for appeal in such cases, because it does not define how an appeal is “filed” or how the ten-day period is computed. If the
sender is deemed credible and there was no other competing consideration, the standard presumption that correspondence mailed and not
returned is deemed received. Ambiguous notice and instructions from an agency regarding appellate procedures is inadequate as a matter
of law to trigger the operation of the statutory time limitation within which to file an intra-agency appeal. It is unsatisfactory that the only way
to measure the ten-day period is for mail actually to be delivered so that the U.S. postmark can be read, because legitimate appeals mailed
but not received are left forfeit. Notices of appeal sent by registered or certified mail are preferable because this method provides either a
return to sender or a signed receipt from the recipient.
TERRY
Brown v US
D.C.C.A. No. 07-CM-1399. Decided Nov. 25, 2009. Before Kern, Terry, and Schwelb, Sr. J.J., with Judge Terry writing for the Court and a
partially dissenting opinion by Judge Schwelb. (Hon. Zinora M. Mitchell-Rankin, Trial Judge). Jonathan Montcalm, Law Student and Moses
Cook, Superv. Attny., Law Students in Court, on the brief for Appellant. Jeffrey A. Taylor, U.S. Attny. and Roy W. McLeese III, Stephen R.
Prest, and Erin L. Walsh, Asst. U.S. Attnys., on the brief for Appellee. DWLR page no. 2589.
POLICE STOP OF PEDESTRIAN FOLLOWED BY REASONABLE INQUIRY UNACCOMPANIED BY ANY
SHOW OF AUTHORITY DEEMED NOT AN ARREST OR SEIZURE
A court’s focus for a police stop and inquiry is whether, under all circumstances, a reasonable person would have believed that he was not
free to leave during the questioning. Factors that may be considered in making that determination include whether several officers presented
a “threatening presence” in a show of force, whether there was a display of a weapon, physical touching, or the use of language or tone
of voice indicating that compliance with the officer’s request might be compelled. Absent such conditions, where a suspect spontaneously
hands the inquiring officer evidence, such as illegal drugs, it is deemed to be a voluntary consent to search which does not violate any
aspect of the Fourth Amendment.
Howard v US
D.C.C.A. No. 08-CF-173. Decided Aug. 27, 2009. Before Terry, and King, and Schwelb, Sr. J.J., with Judge Terry writing for the Court.
(Hon. John M. Mott, Trial Judge). Warren E. Gorman, Esq., appointed by the Court, for Appellant. Bernard J. Delia, Asst. U.S. Attny., with
Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Elizabeth Trosman, and Jonathan P. Hooks, Asst. U.S. Attnys., on the brief, for Appellee.
DWLR page no. 1873.
CREDIBILITY STANDARD FOR THE COURT DURING SUPPRESSION HEARING DISTINGUISHED FROM
THAT FOR THE JURY DURING TRIAL
That a trial court has credited the testimony of a police officer for purposes of denying a pre-trial suppression hearing does not preclude
the defendant, after a sufficient proffer, from cross-examining the officer as to bias during trial where the determination of credibility is the
independent province of the jury.
Jenkins v US
D.C.C.A. No. 06-CM-657. Decided Aug. 27, 2009. Before Newman, Terry, and Schwelb, Sr. J.J., with Judge Terry writing for the Court.
(Hon. Zinora Mitchell-Rankin, Trial Judge). Jerry Ray Smith, Esq., appointed by the Court, for Appellant. Jeffrey A. Taylor, U.S. Attny., Roy
W. McLeese III, John P. Mannarino, Stephanie L. Brooker, and J. Thomas Spiggle, Asst. U.S. Attnys., for Appellee. DWLR page no 1901.
INDIVIDUAL AND SEPARATE SEXUAL OFFENSES DERIVE FROM EACH “FRESH IMPULSE” RESULTING
IN AN ACTUS REUS
Criminal acts are considered separate when there is an appreciable length of time between acts that constitute the two offenses, or when a
subsequent criminal act is the result of a fresh impulse. At the same time, however, an interval between two criminal episodes may be quite
brief but still show that a defendant acted in response to a fresh impulse which one can experience and act upon almost immediately.
Jones v US
D.C.C.A. No. 06-CF-1000. Decided June 4, 2009. Before Nebeker, Terry, and Schwelb, Sr. J.J. (Hon. Craig S. Iscoe, Trial Judge). Donald
L. Dworsky, Esq., appointed by the Court, on the brief for Appellant. Jeffrey A. Taylor, U.S. Attny, and Roy W. McLeese, III, Fernando
Campoamor Sanchez, and Elizabeth H. Danello, Asst. U.S. Attnys., on the brief for Appellee. DWLR page no. 1221.
[Editor’s Note: This opinion is one of three recently appearing on this subject in recent months. See also United States v. Washington, 137
DWLR 937 (May 7, 2009)(Kavanaugh, J.) from the U.S. Court of Appeals for DC and Mills v. District of Columbia, 136 DWLR 2449 (Nov.
12, 2008)(Leon, J.) from the U.S. District Court for DC].
TRAFFIC CHECKPOINT HELD NOT TO BE AN UNCONSTITUTIONAL STOP
Police checkpoints that funnel moving traffic through a single lane to check for apparent traffic violations, in this case the lack of a rearview
mirror, are not per se unconstitutional because the articulable suspicion for a violation of the law is typically viewed before a stop is made
39
and any subsequent seizure of contraband occurs. Once a valid arrest has been made, the vehicle may be validly searched. Fourth
Amendment issues are reviewed de novo on appeal as a matter of law to ensure that the Trial Court had a substantial basis for concluding
that no constitutional violation occurred. “His van and his person were lawfully searched incident to his arrest.” Possession of an illegal
item, such as a pistol, may be actual or constructive. The latter includes situations in which the item was located within easy ambit of the
accused. This proximity must be accompanied by additional evidence, such as collateral hesitant or suspicious activity in order to qualify
as construction possession.
Millet v US
D.C.C.A. No. 08-CM-411. Decided Aug. 13, 2009. Before Wagner, Terry, and King, Sr. J.J., with Judge Terry writing for the Court. (Hon.
Bruce D. Beaudin, Trial Judge). Donald L. Dworsky, Esq., appointed by the Court, on the brief for Appellant. Jeffrey A. Taylor, U.S. Attny.,
Roy W. McLeese III, Chrisellen R. Kolb, and Mervin A. Bourne, Jr., Asst. U.S. Attnys., on the brief for Appellee. DWLR page no. 1861.
SEARCH INCIDENT TO ARREST IS NOT NECESSARILY A SEARCH SUBSEQUENT TO ARREST / LIMITATIONS ON APPEAL OF A STIPULATED GUILTY PLEA
A search “incident” to an arrest is not necessarily the same thing as a search “subsequent” to arrest. An appeal from a stipulated guilty plea
is limited to the terms set forth in the stipulation.
O’Brien v US
D.C.C.A. Nos. 02-CF-17 and 05-CO-313. Dec. 23, 2008. Before Ruiz, Farrell, J.J. and Terry, Sr. J., with Judge Terry writing for the Court.
Allie J. Sheffield, Esq., appointed by the Court, for Appellant. Lisa H. Schertler, Asst. U.S. Attny., with Kenneth L. Wainstein, U.S. Attny.,
John R. Fisher, Roy W. McLeese, III, Thomas J. Tourish, Jr., James S. Sweeney, and Patricia A. Heffernan, Asst. U.S. Attnys., on the brief,
QUESTIONED EXPERT WITNESS CREDENTIALS / MENTAL CAPACITY OF DEFENDANT /
SUGGESTIBILITY OF CHILD WITNESSES / BRADY RULE
The defense of “diminished capacity” is not available in a homicide case the District of Columbia, although evidence of a degree of mental
retardation may be received as a mitigating factor. Second degree murder is a general intent crime and the traditional defenses regarding
mens rea in specific intent crimes do not apply. Wanton and reckless conduct provides sufficient evidence of the required mens rea. Where
pertinent with regard to a child witness, a defendant in a criminal case may put on expert testimony and other evidence to show memory
susceptibility, manipulation, and fabrication with regard to potential bias and taint by those who helped prepare the child to testify, but the
Court is not obligated to hold a pre-trial hearing on the admissibility of the testimony of the child. The defendant may, however, present
expert testimony on the generalized problems with regard to children’s testimony. A distinction is to be made between the competency of a
child to testify (a matter for the court) and the credibility of that testimony (a matter for the jury). The manner in which child welfare agencies
have conducted themselves in a particular case in which harm or death has befallen a child is not relevant to a homicide charge regarding
that child. A qualified expert witness, such as a medical examiner or coroner, may render testimony as to the ultimate issue in the case,
e.g., whether the death of the child was due to physical abuse, intentionally inflicted injuries, or accident. Whether an expert witness has
misrepresented his credentials in pertinent part so as to cause the court to strike his testimony depends on the entirety of the circumstances
and whether that testimony constituted a critical link with the actions of a defendant in causing the child’s injury or death. A factor to be
considered is whether other expert testimony or the corpus of the evidence also sustains the Government’s theory of the case, the test
being whether there was a reasonable likelihood that any misrepresentation of the credentials of the witness affected the judgment of the
jury so that it would not have arrived at the same verdict without that testimony. Where such an expert is not a police officer or otherwise
closely associated with the prosecution, the Government has no obligation to examine the background details of the expert’s credentials
and provide the Defendant with any defects found under the Brady exculpatory evidence rule. Pre-opening autopsy photographs of the
decedent, provided by the Government as evidence to show injuries, are not excludable, particularly where the prosecution has presented
them with sensitivity and brevity before the jury. An indictment has not been impermissibly amended by the Government in the course of
trial as long as the evidence presented goes to an essential element of the offense and is not different from facts that would support the
offense charged therein.
Saunders v US
D.C.C.A. No. 06-CO-1580. Decided July 2, 2009. Before Pryor, Nebeker, and Terry, Sr. J.J., with Judge Terry writing for the Court. (Hon.
Mary Gooden Terrell, Re-sentencing Judge). Sara E. Kopececki, Esq., appointed by the Court, on the brief for Appellant. Jeffrey A. Taylor,
U.S. Attny., Roy W. McLeese III, Florence Pan, and Amanda J. Williams, Asst. U.S. Attnys. on the brief, for the Appellee. DWLR page no.
1429.
U.S. SENTENCING GUIDELINES INAPPLICABLE TO D.C. SUPERIOR COURT / REVIEW FOR SENTENCING IS ON AN “ABUSE OF DISCRETION” BASIS, NOT A “REASONABLENESS” BASIS
Appellate review of a criminal sentence is not based on its “reasonableness,” as long as it falls within the statutory term, because of the
wide latitude accorded to sentencing judges. The proper standard of review is that of abuse of discretion. The U.S. Sentencing Guidelines
are not applicable to cases in the D.C. Superior Court.
40
Wright v US
D.C.C.A. No. 07-CF-893. Decided Aug. 27, 2009. Before Reid and Blackburne-Rigsby, J.J. and Terry, Sr. J., with Judge Terry writing for
the Court. (Hon. Harold L. Cushenberry, Jr., Trial Judge). M. Elizabeth Kent, Esq., appointed by the Court, for Appellant. Peter S. Smith,
Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, and Florence Pan, Asst. U.S. Attnys., on the brief, for Appellee.
DWLR page no. 1885.
INEFFECTIVE ASSISTANCE OF COUNSEL / BRADY RULE
An ineffective assistance of counsel argument must demonstrate both failure to meet the minimum standard of professionalism required
by the Sixth Amendment but also actual prejudice to an appellant’s case. The same prejudice requirement applies to an allegation that the
Government had withheld exculpatory evidence at trial.
THOMPSON
Brown v US
D.C.C.A. No. 02-CF-1313. Decided Aug. 27, 2009. Before Blackburne-Rigsby and Thompson, J.J., and Belson, Sr. J., with Judge Thompson
writing for the Court. (Hon. Lee F. Satterfield, Motions Judge; Hon. Robert I. Richter, Trial Judge). Patrick T. Hand, Esq., appointed by the
Court, for Appellant. Leslie Ann Gerardo, Asst. U.S. Attny., with Jeffrey Taylor, U.S. Attny., Roy W. McLeese III, Thomas J. Tourish, Jr., and
Alan Boyd, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 1921.
A VALID CUSTODIAL WAIVER OF MIRANDA RIGHTS CARRIES WITH IT THE IMPLICIT SIMULTANEOUS
WAIVER OF THE RIGHT TO IMMEDIATE PRESENTMENT UNDER THE RIVERSIDE RULE / THE DEFINITION
OF A “PISTOL” IS NOT AN ELEMENT OF THE OFFENSE OF CARRYING A PISTOL WITHOUT A LICENSE
AND A JURY MAY INFER THAT A FIREARM WAS A PISTOL BASED ON CIRCUMSTANTIAL EVIDENCE
/ THERE IS NO SECOND AMENDMENT RIGHT TO CARRY AN UNLICENSED PISTOL OUTSIDE ONE’S
HOME IN THE DISTRICT OF COLUMBIA
Implicit in a valid custodial waiver of Miranda rights is also the waiver of the right to immediate presentment before a court. On a charge of
Carrying a Pistol Without a License there is no requirement that the court instruct the jury on the definition of a pistol and the jury may infer
such a weapon from the facts of a given case. There is no right under the Second Amendment to carry an unlicensed pistol outside one’s
home in the District of Columbia.
Coulter v Gerald Family Care, PC, et al
D.C.C.A. Nos. 06-CV-480 & 06-CV-751. Decided Jan. 29, 2009. Before Washington, C.J., Thompson, J., and Ferren, Sr. J., with Judge
Thompson writing for the Court. (Hon. Natalia Combs Green, Trial Judge). Kenneth Shepherd, Esq. for Appellant. Brian J. Nash, Esq.,
with Michael L. Sanders, Esq. on the Brief, for Appellees Gerald Family Care, P.C. and Eugene Taylor, M.D. Andrew J. Spence, Esq., with
Stephen L. Altman, Esq. on the brief, for Appellee Terrence M. Fullum, M.D. Curtis A. Boykin, Esq., with Frederick A. Douglas, Esq. on the
brief, for Appellee Nixon Asomani, M.D. DWLR page no. 377.
MEDICAL MALPRACTICE
ESTABLISHING THE STANDARD OF CARE, INTER ALIA
That a Trial Judge’s spouse is a member of a group whose general interests are related to a case before him or her is not a basis for ascribing
any bias to that Judge. There must be some objective basis, not mere speculation, for a finding of judicial bias. Likewise, there is no basis
to strike for cause a juror who has a relative whose profession is the same as that of one of the parties when that juror has asserted that
s/he can nevertheless be impartial. It is impermissible for a lawyer to directly contact the opposing party’s expert witnesses, even for the
seemingly innocuous purpose of seeking convenient dates for their depositions; rather, such matters must be co-ordinated through opposing Counsel. A motion to file an amended complaint may be denied if filed late in the case and will unduly prejudice the other parties. Civil
conspiracy may be deemed implicit in any complaint against joint or common defendants, but to be actionable it may not be raised late in
the case if it prejudices those parties. Similarly, a late attempt to include a charge of sexual misconduct as an additional aspect of medical
malpractice which is not broached until late in the case, may be precluded as unduly prejudicial to that defendant. A duly circumscribed
protective order may be issued to prevent the impertinent dissemination of information about an opposing party during proceedings; an
order which is overbroad, however, may impermissibly implicate First Amendment rights and may not be issued simply to protect a party’s
business interests. An attempt to litigate before a jury an opposing party’s slowness in producing requested discovery documents runs the
risk of implicating the testimony of one’s own lawyer and may result in recusal of that lawyer. An allegation that poor record keeping led to
an inordinate delay in a medical diagnosis requires expert testimony to establish a standard of care and a causal nexus. An allegation that
communication of a party’s medical situation to another was a violation of that party’s privacy and confidentiality rights would constitute a
separate cause of action which must be timely included in a complaint. To qualify a witness as an expert in a complex field such as medical
malpractice, so that the witness may render professional opinions, requires not only a showing of experience in the relevant field, but also
such factors as academic achievements, familiarity the applicable national standard of care, derived from attendance at pertinent professional meetings and seminars, discussions with colleagues, as well as publishing in or keeping current in reading the literature in the field.
A professional who simply testifies that he is familiar with such a standard, but provides no basis for such familiarity, does not quality. Failure
to make the required causal connection also does not qualify for expert opinion. The reading into the record of deposition testimony in lieu of
the live appearance of a witness at trial may be precluded on relevancy grounds as well as on the grounds that insufficient efforts had been
made to ensure the appearance of the witness. A plaintiff may call the other party’s expert witnesses during its own case-in-chief but must
41
provide sufficient notice of the intent to do so to both the opposing Counsel and the Court, and even then it is a problematic situation because
at that point the witnesses have not yet been qualified as experts. Aggressive cross-examination of an opponent’s expert witness may invite
the Trial Court’s intercession, particularly when the phraseology of the questions arguably calls for speculation. Where, as a matter of law,
a party has failed to establish the threshold standard of care in a medical malpractice case, a Rule 50(a) Motion for Judgment as a Matter
of Law may be granted. Where, however, a Trial Court grants such a motion prior to the Plaintiff’s resting its case and with notice that it still
has one expert witness to call as to the standard of care, the granting of such a motion is reversible error. While duly approved Rule 54(d)
(1) costs may be granted to a prevailing party as a matter of course, the award of attorney’s fees to that party in ordinary civil litigation, by
departing from the American Rule that each party bears its own attorney’s fees, requires separate findings of fact and conclusions of law.
Fees and costs must be vacated altogether as to a prevailing party whose judgment has been reversed.
Fraternal Order of Police and DC DCLC v DC Public Employee Relations Board
D.C.C.A. No. 07-CV-1089. Decided June 11, 2009. Before Reid, Glickman, and Thompson, J.J., with Judge Thompson writing for the Court.
(Hon. Mary A. Gooden Terrell, Trial Judge). J. Michael Hannon, Esq. for Appellant. Bruce A. Federickson, Esq., with Cedar P. Carlton, Esq.
BACK PAY ACT
INTERIM EARNINGS OFFSET REQUIRED
The Back Pay Act (BPA) applies to D.C. employees because the subsequently-enacted D.C. Comprehensive Merit Personnel Act provides
them a floor for benefits below which awards may not be rendered, thus effectively maintaining the BPA’s operability. The Public Employee
Relations Board may modify an arbitration award where it is contrary to law and public policy but may not simply substitute its judgment
for that of the arbitrator. If a party is successful in such a case, the BPA provides for an award for back pay and interest, less any amounts
earned by the employee during separation from service.
Hobley v Law Offices of S. Howard Woodson, III
D.C.C.A. No. 08-CV-446. Decided Nov. 19, 2009. Before Thompson, J., and Steadman and Schwelb, Sr. J.J., with Judge Thompson writing
for the Court. Earnest Lee Hobley, Appellant Pro Se. No appearance or brief was filed on behalf of the Appellee. DWLR page no. 2496.
CIVIL PROCEDURE
LEGAL MALPRACTICE / SUMMARY JUDGMENT / RES JUDICATA / BREACH OF CONTRACT
After an initial Motion for Summary Judgment has been denied by one Judge, it is not a violation of the Law of the Case Doctrine for a
subsequent Judge to grant a second such motion if it is submitted on different grounds. The Doctrine of Res Judicata may apply if a ruling
in a previous case, based on one theory, would constitute an adjudication of the identical set of facts presented in a subsequent case on
another theory. An Appellee proceeds at his peril in failing to file a responsive brief on appeal. Although a legal malpractice claim might
be deemed not to be actionable qua malpractice, it might yet proceed on a simple breach of contract theory for failure to perform work for
which a fee had been paid.
Howerton v US
D.C.C.A. Nos. 04-CF-1058 & 06-CO-599. Decided Feb. 19, 2009. Before Thompson, J., Farrell, Sr. J., and Iscoe, Assoc. J., D.C. Superior
Court, sitting by designation, with Judge Thompson writing for the Court, as well as filing her own separate concurring opinion. (Hon. Rafael
Diaz, Trial Judge). Cynthia Nordone, Esq., appointed by the Court, for Appellant. James Klein and Alice Wang, D.C. Pub. Def. Serv., filed
an Amicus Curiae brief on behalf of Appellant. Sharon A. Sprague, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese
III, and Elizabeth Trosman, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 481.
SECOND AMENDMENT AND CPWL CHARGE / “CARRYING” / SEVERANCE OF COUNTS /
INEFFECTIVE ASSISTANCE OF COUNSEL
Ordinarily issues not raised by motion or argument before the Trial Court will not be considered for the first time on appeal. Where such
fallow issues are constitutional in nature, the standard of review is the Plain Error Test, which requires as one of its elements a showing
that the ruling had an adverse effect on the integrity of the judicial process. The Supreme Court’s recent ruling striking down the District’s
plenary prohibition on the possession of handguns did not declare the statute unconstitutional on its face. Rather, it held that the Second
Amendment protects the right to have a licensed and registered handgun in one’s home for personal protection. The statute on Carrying
a Pistol Without a License was not invalidated in cases where no attempt had ever been made to obtain a permit and the pistol was being
used for offensive and illegal purposes. A pistol is deemed to be “carried” if it is within “convenient access” to the accused at the time of his
arrest. The rule on joinder of counts is to be interpreted broadly and in the interest of judicial economy, warranting a unified trial on charges
of a similar character, based on the same act or transaction, or which constitute parts of a common plan and scheme. Severance is mandated only when necessary to guarantee the Defendant’s right to a fair trial. Where a Trial Court has instructed the jury that it must consider
each charge separately and not allow its verdict on one charge to effect its determination as to any other charge, it has met its continuing
duty to ensure unfair prejudice from joinder of counts. Even though Trial Counsel did not file certain pre-trial motions, the Appellate Court’s
conclusion that they would not have been granted precludes a ruling of ineffective assistance of counsel.
In re K.S.
D.C.C.A. No. 04-FS-1597. Decided Mar. 5, 2009. Before Washington, C.J., Thompson, J., and Pryor, Sr. J., with the Chief Judge writing
for the Court. (Hon. J. Michael Ryan, Trial Judge). Marion E. Baurley, Esq., for Appellant. Alice Stevens, Asst. D.C. Attny. Gen., with Peter
J. Nickles, Interim D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., Donna M. Murasky, Dep. D.C. Sol. Gen., and Catherine Ferrando, Asst.
42
D.C. Attny. Gen., on the brief, for Appellee. DWLR page no. 613.
ABUSE AND NEGLECT LAW
CHILD’S TESTIMONY VIA CLOSED CIRCUIT TELEVISION APPROVED
Inasmuch as testimony by a child witness has been approved over Sixth Amendment confrontation objections in criminal cases, the procedure
is also permissible in an appropriate neglect/abuse case. The Trial Court must carefully balance the probative value of the child’s testimony
against any potential detriment to the best interests of the child. In so doing, the Court must make findings on the record that (1) based on
concrete evidence which is “individualized to the particular child,” typical open-court testimony “would create a risk of serious harm to the
child” if it occurs in the presence of the party accused of wrongdoing; (2) said risk is more than de minimis; and (3) an alternative method
of testifying outside the presence of that party can alleviate that risk.
Lacek v Washington Hospital Center
D.C.C.A. No. 07-CV-1269. Decided Aug. 27, 2009. Before Ruiz, Thompson, and Oberly, J.J., with Judge Thompson writing for the Court.
(Hon. Geoffrey M. Alprin, Trial Judge). Charles Frederick Chester, Esq. for Appellant. Craig S. Brodsky, Esq., with Donald L. DeVries, Jr.,
MEDICAL MALPRACTICE AMENDMENT ACT OF 2006
90-DAY NOTICE AS PRE-REQUISITE TO FILING SUIT
New legislation is retroactive in effect only if it changes the legal consequences of acts completed before its effective date but laws which
provide only for changes in procedure may properly be applied to conduct which predated their enactment. The Medical Malpractice Amendment Act of 2006 was intended as remedial, procedural legislation, to improve the legal process in the area of civil justice by encouraging
early settlements and facilitating the parties’ ability reach a settlement. The Act requires that a defendant be given no less than a 90-day
advance notice prior to filing suit unless a good faith exception is shown and approved by the court. Any waiver of rights must be clearly and
unambiguously made and the absence of a protest does not constitute a waiver or invoke the doctrine of estoppel.
Martinez v US
D.C.C.A. No. 06-CF-996. Decided Oct. 29, 2009. Before Ruiz, Glickman, and Thompson, J.J., with Judge Thompson writing for the Court.
(Hon. Erik P. Christian, Trial Judge). Lee R. Goebes, Esq., appointed by the Court, with James W. Klein and Jaclyn S. Frankfurt, D.C. Pub.
Def. Serv., on the brief, for the Appellant. John P. Mannarino, Asst. U.S. Attny., with Roy W. McLeese III, Elizabeth Trosman, and Gary M.
Wheeler, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2397.
AIDING AND ABETTING / LIMITING CROSS-EXAMINATION AS TO BIAS / HARMLESS ERROR
The right of a criminal defendant to present a full and fair defense by all means allowable is fundamental. Probing the putative bias of a
witness is always relevant and must be given as full a reign as is constitutionally permissible. Failure to do so requires an appellate court to
assume the full damaging potential of the precluded cross-examination. Error, even serious error, however, can still be shown to be “harmless
beyond a reasonable doubt,” which is the appellate standard for the Government in such matters. The elements to be considered are the
importance of the potential testimony, whether it is cumulative, other corroborative evidence on point, the extent of other cross-examination,
and the overall strength of the prosecution’s case. The formerly used aiding and abetting jury instruction that in considering a defendant’s
action it was proper to presume that one intends “the natural and probable consequences of the crime in which he intentionally participates”
is no longer permissible, but if given is subject to a “harmless error” analysis and may be so deemed where the primary defense is not lack
of intent as to the consequences of a defendant’s actions but that he was not present during the crime.
Millard v US
D.C.C.A. No. 06-CF-905. Decided Mar. 12, 2009. Before Kramer, Blackburne-Rigsby, and Thompson, J.J., with Judge Thompson writing for
the Court. (Hon. Lynn Leibovitz, Trial Judge). Jonathan Anderson, D.C. Pub. Def. Serv., with Joshua Deahl, James Klein, and Samia Fam,
D.C. Pub. Def. Serv., on the brief, for Appellant. John P. Mannarino, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III,
Alessio D. Evangelista, Asst. U.S. Attny., and Thomas J. Tourish, Jr., Asst. U.S. Attnys., on the brief, for Appellee. DWLR page on. 621.
[Editor’s Note: The major distinction underlying this case is not a new one, from the standpoint of proving the absence of a fact. From the
earliest days of the 20th Century children were reciting the following nursery rhyme:
Yesterday upon the stair,
I saw a man who wasn’t there.
He wasn’t there again today,
I wish that he would go away!
From “Antigonish” (1899) by William Hughes Mearns (1875-1965), American Educator.]
DEA-7 CHEMIST’S REPORT IN DRUG CASES AND MPD CERTIFICATE OF NO RECORD IN PISTOL CASES
DISTINGUISHED AS “TESTIMONIAL” AND “NON-TESTIMONIAL” DOCUMENTS, RESPECTIVELY
Although a DEA-7 report may not be used by itself to supply the vital element that the evidence in a drug case is a controlled substance,
because it embodies “testimonial evidence” of a scientific conclusion, a Certificate of No Record (CNR) in a firearms case may be so used
because it is “non-testimonial” and requires no special expertise to demonstrate the absence of a common recordation. A document is
testimonial in nature if it contains statements that would lead an objective witness reasonably to believe that it would be available for use
at a later trial, including scientific test results, thereby availing itself of cross-examination and requiring the presence of the declarant. A
CNR has no implicit need for expert explanation and is merely a substitute for more voluminous records, not for testimony subject to cross-
43
examination. At the same time, however, a CNR is not to be considered a “business record,” but is simply not subject to the requirements
of the Confrontation Clause of the Sixth Amendment and thus requires no “custodial witness.” Where constitutional issues are raised, if
there is a “reasonable possibility” that admitting impermissible testimonial documentation into evidence on a drug charge may have tainted
the jury in convicting on a companion weapons charge, the latter conviction must also be reversed.
Walker and Boyd v US
D.C.C.A. Nos. 99-CF-1614 & -1650. Decided Oct. 22, 2009. Before Ruiz, Blackburne-Rigsby, and Thompson, J.J., with Judge Thompson
writing for the Court. (Hon. Rufus G. King, III, Trial Judge). Brigitte L. Adams, Esq., appointed by the Court, for Appellant Walker. Judith A.
Lovelace, Esq., appointed by the Court, for Appellant Boyd. Suzanne C. Nyland, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy
W. McLeese III, and Christian Kolb, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2425.
[Editor’s Note: In what is destined to become a classic discussion of a Batson-like jury issue, Judge James E. Boasberg’s opinion in the
case of United States v. Powell, 136 D.W.L.R. 2149 (Oct. 3, 2008) found that black persons are not under-represented in D.C. Superior
court criminal venires, but, in fact, are over-represented, an opinion which was cited nine times by the Court of Appeals in the case of Gause
and Wilkey v. United States, 136 D.W.L.R. 2501 (Nov. 19, 2008), discussing the issue of whether the D.C. jury pool is a representative
cross-section of the community.]
CONSPIRACY / KIDNAPPING / ASSAULT WITH A DANGEROUS WEAPON / BATSON CHALLENGE / SEVERANCE OF TRIALS / IMPEACHMENT DOCUMENT / CO-CONSPIRATOR’S STATEMENT / VACTURE AND
MERGER OF CONVICTIONS / OUTMODED AIDING AND ABETTING JURY INSTRUCTION / UNILATERAL
DISMISSAL OF JUROR / CRITICAL STAGE OF PROCEEDINGS / MULTIPLE CONVICTIONS ON POSSESSION OF FIREARM DURING CRIME OF VIOLENCE / “FRESH IMPULSE”
Appeal of a motion for severance must show that the appellant suffered “manifest prejudice” from joinder and “abuse of discretion” of the
Trial Judge. After a prima facie Batson challenge has been made during jury selection the Government must justify its peremptory strikes
with non-suspect reasons. In so doing, reasons based on perceived lack of “rapport” between prosecutor and the prospective juror are
valid. Cases that are “racially charged” require a closer scrutiny of any such reasons. The introduction of all or part of a document used
for impeachment is subject to the discretion of the Trial Court, subject on appeal to the standard of abuse of discretion. The testimony of a
putative co-conspirator as an exclusion from the hearsay rule under Fed.R.Evid. 801(d)(2)(E) requires that before any vicarious admissions
of other co-conspirators can be admitted, it must be shown that those statements were made in furtherance of the conspiracy. But where the
co-conspirator is not reporting the statements of others but testifying as to what he saw and heard during the crimes, the testimony is not
subject to this stricture. Any statements or plans attributed to the co-defendants via the testimony of a cooperating witness which relates to
their future course of action, are deemed “non-testimonial” and “do not implicate the Confrontation Clause” of the Sixth Amendment. In order
to convict an aider and abettor of carrying a pistol without a license it must be proven that the principal did not have a license or registration,
not the aider and abettor. In order to convict on a crime of possession of a firearm during a crime of violence, the jury must agree that at least
one of the acts of the violent crime was committed and that it be in agreement on the same crime. An appeal on a Trial Judge’s giving the
now disfavored “natural and probable consequences” instruction on aiding and abetting requires an appellant to show that the instructional
error affected his substantial rights and is subject to a “harmless error” analysis. The Government must show that a defendant “intentionally joined the agreement” to commit furtherance crimes before a conviction on a conspiracy charge may be returned. A jury instruction that
a defendant’s testimony on his own behalf may be considered in the light of his own “vital interest in the outcome” is not improper as long
as it is accompanied by appropriate instruction on the presumption of innocence. Excusing a regular juror and replacing that juror with an
alternate without consulting trial counsel is a matter of a Trial Judge’s sound discretion and not subject to challenge for exclusion for a “vital
stage” of the trial. Convictions on multiple counts of possession of a firearm during a crime of violence during a continuing series of criminal
acts do not merge where the predicate crimes each stem from a “fresh impulse” to continue with other crimes.
Watts v US
D.C.C.A. No. 06-CF-263. Decided May 21, 2009. Before Reid, Blackburne-Rigsby, and Thompson, J.J., with Judge Thompson writing for
the Court. (Hon. Judith E. Retchin, Trial Judge). Corinne Beckwith, D.C. Pub. Def. Serv., with James Klein and Samia Fam, PDS, on the
brief, for Appellant. Ann K. Simon, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Gregory G. Marshall and Allison
Harnisch Leotta, Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 1133.
RAPE SHIELD LAW / “CONSTITUTIONALLY REQUIRED” EXCEPTION
In general, absent compelling contrary circumstances, a sexual complainant’s prior sexual history is inadmissible at trial as provided by the
Rape Shield Law. It does provide for exceptions, however. First there must be a timely, written motion containing an offer of proof as to what
the otherwise prohibited evidence is expected to show. If the Trial Judge determines that the offer of proof is probative, the defendant may
be entitled to an in camera hearing on the issue. His burden is to “precisely demonstrate” the probative value of the requested evidence
and how it would counter the Government’s case. If he is able to cross this threshold, the Trial Court must still weigh the potential prejudice
to the private life of the complainant against the probative value of the evidence for the defendant. In general, however, it is expected that
such evidence “should not be admitted except in the most unusual cases” and appellate review of a Trial Court’s ruling is “highly deferential”
and will be reversed only on a showing that it “gravely abused its discretion.”
44
Wood v Neuman
D.C.C.A. Nos. 07-CV-578 & -670. Decided Aug. 27, 2009. Before Washington, C.J., and Kramer and Thompson, J.J., with Judge Thompson
writing for the Court. (Hon. Neal Kravitz, Trial Judge; Hon. Anna Blackburne-Rigsby, Motions Judge; and Hon. Jennifer M. Anderson, Trial
Judge). John J. Brennan, III, Esq. for Appellant/Cross-Appellee. John E. Scheuermann, Esq. for Appellees/Cross-Appellants. DWLR page
no. 2333.
REMEDIES / EASEMENT APPURTENANT / ABUSE OF PROCESS / NOMINAL DAMAGES / PUNITIVE DAMAGES / INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS / NUISANCE
CIVIL PROCEDURE / HOSTILE WITNESS / ABUSE OF PROCESS
A judgment in equity that no easement appurtenant exists between two landholders is limited to them and their property and does not necessarily reach other interested parties not before the Court. A jury’s failure to award nominal damages is not a sufficient basis for a reversal
and, in the typical case, it would serve no useful purpose to remand for that technical action. Punitive damages are reserved only for tortuous
acts which are replete with malice and are to be awarded only for acts of fraud, ill will, recklessness, wantonness, oppressiveness, willful
disregard of the plaintiff’s rights, or similar circumstances, for which the standard of proof is “clear and convincing evidence.” It is error to
preclude opposing counsel from treating a party as a hostile witness under appropriate circumstances. A claim for abuse of civil process
lies only in utilizing the legal system to accomplish some end which a party could not legally and regularly be required to do. A claim for
intentional infliction of emotional distress can be sustained only on facts that are so outrageous in character and so extreme in degree as to
go beyond all possible bounds of decency, and regarded as atrocious, and utterly intolerable in a civilized community. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are insufficient. Although nuisance is a type of damage and not a theory
of recovery in and of itself, there is such a thing as an “actionable private nuisance” based on continuous or recurring conditions that give
rise to an unreasonable use, such as repeated indecencies, depredations, inadequate maintenance, and the like. A Rule 11 motion may be
denied on the grounds that it allows a plaintiff to make a good faith argument for the “extension, modification, or reversal of existing law.”
WAGNER
Byrd v VOCA Corp. of Washington, DC
D.C.C.A. No. 05-CV-778. Decided Dec. 31, 2008. Before Fisher, J., and Wagner and Schwelb Sr. J.J., with Judge Wagner writing for the
Court. (Hon. Frederick H. Weisberg, Trial Judge). Leslie D. Alderman III, Esq., with T. Cary Devorsetz, Esq. and Sundeep Hora, Esq.
were on the brief, for Appellants. Steven Sarfatti, Esq. for Appellees. Jonathan L. Gould, Esq. on the brief for Amicus Curiae Metropolitan
Washington Employment Lawyers Assoc., in support of Appellants. DWLR page no. 125.
LABOR LAW / NATIONAL LABOR RELATIONS ACT / COLLECTIVE BARGAINING AGREEMENT
WRONGFUL TERMINATION / PUBLIC POLICY EXCEPTION
Labor disputes arising under a collective bargaining agreement are covered by the National Labor Relations Act which federally pre-empts
any state administrative or judicial actions. An exception is a discharge attributable entirely to an employee’s refusal to participate in illegal
activity or for reporting same. In such a case it is not necessary that an employee exhaust administrative remedies before filing suit in a
local court.
Shelton v US
D.C.C.A. No. 04-CF-1254. Decided Nov. 19, 2009. Before Reid and Glickman, J.J., and Wagner, Sr. J., with Judge Wagner writing for the
Court. (Hon. Gerald I. Fisher, Trial Judge). Cynthia Nordone, Esq., appointed by the Court, for Appellant. Jeffrey A. Taylor, U.S. Attny., Roy
W. McLeese III, and Emily Scruggs, Asst. U.S. Attnys. on the brief, for Appellee. DWLR page no. 2517.
JURY INSTRUCTION MENTIONING ABSENCE OF MANDATORY MINIMUM PENALTY
It is extremely risky for a Trial Court to give any jury instruction regarding possible punishment other than the standard one emphasizing
that sentencing is the responsibility of the Court and that the jurors should not concern themselves with it. Nevertheless, an instruction
concerning possible punishment in the event of conviction may be considered harmless error, particularly when it is accompanied by the
standard admonition that jurors are not to consider that issue, and the Government’s case is a strong one. Whether to allow the Government
to re-open its case-in-chief lies within the sound discretion of the Trial Court. Similarly, whether to allow additional rebuttal evidence from
the Government falls into the same category.
.
WASHINGTON
2348 Ainger Place Tenants Association, Inc. v DC, DTF Investments, LLC, et al
D.C.C.A. No. 07-CV-1357. Decided Oct. 8, 2009. Before Washington, C.J., Glickman, J., and Nebeker, Sr. J., with the Chief Judge writing
for the Court. (Hon. Maurice A. Ross, Trial Judge). Meredith H. Moldenhauer, Esq., with Ashley E. Wiggins, Esq. on the brief, for Appellant.
Carl J. Schifferle, Asst. D.C. Attny. Gen., with Peter Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen. and Donna M. Morasky, Dep.
D.C. Sol. Gen. on the brief, for Appellee. DWLR page no. 2625.
CONDOMINIUM / COOPERATIVE SALES LAW JURISDICTION FOR REVIEW OF A DECISION OF THE
CONDOMINIUM AND COOPERATIVE CONVERSION SALES BRANCH OF THE DCRA LIES EXCLUSIVELY
WITH THE D.C. COURT OF APPEALS
45
Where a statute vests jurisdiction for review of an administrative agency’s decision solely with the D.C. Court of Appeals, the D.C. Superior
Court lacks concurrent jurisdiction to rule on the merits of any suit filed seeking review thereof. A tenants association lacks standing to
pursue legal remedies if it is not properly formed and formally registered with the pertinent government agency.
Atchison v US
D.C.C.A. Nos. 06-CF-1086 & -1098. Decided Oct 29, 2009. Before Washington, C.J., and Reid and Kramer, J.J., with the Chief Judge writing
for the Court. (Hon. Erik P. Christian, Trial Judge). William T. Morrison, Esq. for Appellant. Elizabeth H. Danello, Asst. U.S. Attny., with Jeffrey
A. Taylor, U.S. Attny., Roy W. McLeese III, and Gilberto Guerrero, Jr., Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 2321.
“KNOCK AND ANNOUNCE” REQUIREMENT IN EXECUTING SEARCH WARRANT / SEVERANCE OF TRIALS / LESSER-INCLUDED OFFENSE
Within the ambit of the Fourth Amendment, D.C. statutory law permits a police officer executing a search warrant to break “any part of a
house, or anything therein” if, after “knocking and announcing” his identity and purpose, he perceives either actual or constructive refusal
to allow admittance. To determine what constitutes a reasonable waiting time before gaining forcible entry depends on the particularized
facts of each case, together with any exigent circumstances, such as the imminent destruction of evidence, or some danger to the entering
officers. There is no “minimum waiting time” applicable to all cases. The denial of a severance motion will not be reversed unless there is a
clear showing of abuse of discretion in which an appellant must demonstrate the most compelling prejudice from which the Trial Court would
be unable to afford protection if two or more offenses were tried together. A lesser included charge may be considered, on either party’s
request, where there is any evidence to support it and the lesser offense consists of some, but not every, element of the greater offense.
Biomet, Inc. v Finnegan Henderson LLP
D.C.C.A. No. 07-CV-813. Decided Mar. 19, 2009. Before Washington, C.J., Blackburne-Rigsby, J. and Schwelb, Sr. J. , with the Chief
Judged writing for the Court. (Hon. Maurice A. Ross, Trial Judge). John W. Karr, Esq., with Theodore S. Allison, Esq. on the brief, for
Appellant. John K. Villa, Esq., with F. Whitten Peters, Esq., Jonathan Landy, Esq., and Richard A. Olderman, Esq., on the brief, for Appellee.
DWLR page no. 729.
LEGAL MALPRACTICE
JUDGMENTAL IMMUNITY / THE UNSETTLED LAW EXCEPTION ADOPTED IN D.C.
In a legal malpractice suit a plaintiff must show that the standard of care had been breached by the lawyer’s failing to exercise a reasonable
degree of knowledge, care and skill. At the same time, a lawyer is not to be held liable on that basis for every mistake made, but only for
those made outside the honest exercise of professional judgment. If a lawyer has made an informed judgment after reasonable research
on an issue and then acted on “an informed judgment” s/he will be protected against legal malpractice liability by the Doctrine of Judgmental
Immunity where the issue is one of unsettled law.
Board of Trustees, UDC v DiSalvo
D.C.C.A. No. 06-CV-1481. Decided July 2, 2009. Before Washington, C.J., and Newman and Farrell, Sr. J.J., with the Chief Judge writing
for the majority and a dissenting opinion by Judge Newman. (Hon. Geoffrey M. Alprin, Trial Judge). Holly M. Johnson, Asst. D.C. Attny.
Gen., with Peter J. Nickels, Interim D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen., and Donna M. Murasky, Dep. D.C. Sol. Gen., on the brief,
for the Appellant. Kenneth M. Berman, Esq., with Lauren B. Pisano, Esq. and H. David Leibernsperger, Esq., Peter T. Enslein, Esq., and
Patrick S. Guilfoyle, Esq., on the brief, for Appellees. DWLR page no. 1449.
TORT LAW
HEIGHTENED FORESEEABILITY STANDARD FOR THE CRIMINAL ACTS OF THIRD PARTIES
The first reported occurrence of an assaultive robbery in a university underground parking lot did not provide sufficient basis for the university
to have had reasonable foreseeability in order to create a duty for it to have provided any special security measures for the safety of the
general population of users of the facility. Where an attempt is made to fix liability on a defendant for the criminal liability of outsiders, there
is a “sliding scale” which imposes a lesser burden of proof as to foreseeability for those who have a closer relationship with, and therefore
a duty to, the defendant, while a burden of showing “heightened foreseeability” falls to those whose relationship with the defendant is more
attenuated.
Chimes District of Columbia, Inc. v King
D.C.C.A. No. 06-AA-1003. Decided Mar. 5, 2009. Before Washington, C.J., Fisher, J., and King, Sr. J., with the Chief Judge writing for the
Court and a dissent by Judge King. Timothy Monahan, Esq., with Howard K. Kurman, Esq. and Laura L. Rubenstein, Esq. on the brief, for
Petitioner. Son B. Nguyen, Esq. of Arnold & Porter, with Barbara McDowell, Esq. of the Legal Aid Society, and Michael N. Sohn, Esq., of
Arnold & Porter, on the brief, for Respondent. DWLR page no. 601.
UNEMPLOYMENT COMPENSATION ACT
CURRENT MEDICAL DOCUMENTATION REQUIRED AS
GOOD CAUSE FOR VOLUNTARILY LEAVING WORK
Under the Unemployment Act, in order to qualify for unemployment compensation, up-to date medical documentation is a pre-requisite for
a ruling that an employee has good cause related to the employment for quitting the job so that an employer has some basis for verification
of the employee’s claim and so that it might possibly ameliorate the work conditions.
46
Coghill and Marshall v US
D.C.C.A. No. 06-CF-961. Decided Oct. 29, 2009. Before Washington, C.J., Glickman, J., and Ferren, Sr. J., with the Chief Judge writing for
the Court. (Hon. Brian F. Holeman, Trial Judge). Brigitte L. Adams, Esq. for Appellant Darius Coghill. Sicilia C. Englert, Esq. for Appellant
Shannon Marshall. Leslie Ann Gerardo, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Florence Pan, Asst. U.S. Attny., on the brief
for Appellee. DWLR pgae no. 2305.
[Editor’s Note: Although the Court of Appeals held in this case that simple flight does not constitute APO under the “impeding” theory, as
it noted therein, it has also held that flight coupled with other conduct, such as running into a building, house, or apartment, slamming and
locking the door behind, constitutes erecting a “new barrier” and would therefore constitute affirmative resistance sufficient to qualify for
conviction under this statute. See Dolson v. United States, 134 D.W.L.R. 1293 (June 17, 2008).].
ASSAULT ON A POLICE OFFICER / MERE FLIGHT WITHOUT MORE DOES NOT CONSTITUTE ACTIVE
AND OPPOSITIONAL CONDUCT SUFFICIENT TO CONVICT UNDER THE INTERFERING OR IMPEDING
ASPECTS OF THE APO STATUTE
The APO statute not only makes it a crime to strike a police officer but it also imposes criminal liability upon one who without justifiable and
excusable cause resists, opposes, impedes, intimidates, or interferes in the performance of a police officer’s duties. The purpose of the statute
is to de-escalate the potential for violence by making illegal any “active and oppositional conduct” intended to thwart a police officer in the
performance of official duties. Although passive resistance may tend to have the same consequences, it does not fall within the legislative
intent of the statute. Thus, fleeing from the police does not fall under the “active and oppositional conduct” rubric of the statute, inasmuch
as running away from police is the opposite of confronting them with the risk of resulting violence. Rather, fleeing is deemed to be lack of
compliance, not resistance. Whenever various alternative theories of liability are submitted to a jury, any one of which is later determined
to be improper, the conviction cannot be sustained.
Debnam v Crane Co.
D.C.C.A. No. 06-CV-952. Decided July 23, 2009. Before Washington, C.J., Glickman, J., and King, Sr. J., with the Chief Judge writing for
the Court. (Hon. Frederick H. Weisberg, Trial Judge). Peter T. Enslein, Esq., with Daniel A. Brown, Esq., on the brief, for Appellant. David
T. Case, Eq., with Brendon Fowler, Esq. on the brief, for Appellee. DWLR page no. 1585.
CONTRACT LAW
A LOGICAL INTERPRETATION OF THE TERMS OF A CONTRACT MAY STILL BE DEEMED AMBIGUOUS
WHEN IT IS SUBJECT TO MORE THAN ONE INTERPRETATION CONSISTENT WITH THE LANGUAGE
USED / CHOICE OF LAW PROVISIONS ARE NOT PERSUASIVE IN INTERPRETING SAME
The language of a contract is to be interpreted based on what a reasonable person in the position of the parties would have thought the
disputed language meant, giving a reasonable, lawful, and effective meaning to all its terms in light of all the circumstances at the time the
contract was made. If a provision of a contract is fairly susceptible to different constructions or interpretations, it is ambiguous on its face
and the correct interpretation becomes a question for the factfinder, not a matter of law for the Trial Court to decide on summary judgment.
Although a Trial Court’s interpretation of the language may be reasonable, it is not necessarily the only reasonable interpretation. Similarly,
the designation of a choice of law jurisdiction does not carry persuasive weight in determining the parties’ intent as to the resolution of
breach of warranty claims.
High v US
D.C.C.A. No. 03-CF-1397. Decided June 4, 2009. Before Washington, C.J., Kramer, J., and Farrell, Sr. J., with the Chief Judge writing for
the Court. (Hon. Judith E. Retchin, Trial Judge). Veronice A. Holt, Esq., on the brief for Appellant. Amanda J. Williams, Asst. U.S. Attny.,
with whom Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Thomas J. Tourish, Jr., and Angela G. Schmidt, Asst. U.S. Attnys., on the
UNREQUESTED INVOLUNTARY MANSLAUGHTER INSTRUCTION HELD HARMLESS ERROR
Simply because a Trial Court acts of its own accord in giving an unrequested jury instruction is not plain error. It, in fact, has an affirmative
responsibility to monitor a trial and provide jury instructions that the lawyers involved may have either eschewed or overlooked. Whether there
was a factual basis to give such an instruction is a separate determination. As an alternative to first-degree murder, voluntary manslaughter
is an unlawful, intentional killing that would be second-degree murder but for the presence of mitigating circumstances where the person acts
in the heat of passion caused by adequate provocation. This, in turn, is an objective inquiry, the test for which is whether the provocation was
such that would naturally induce a reasonable person in the passion of the moment to lose self-control and commit the act on impulse and
without reflection. Neither suspicion nor rage alone is sufficient to support a voluntary manslaughter instruction as a lesser-included offense
because there must also be adequate provocation which, even so, mitigates murder to manslaughter only in the most exceptional cases
in response to an offense that was so grave, and so heinous, that society partially excuses or justifies the defendant’s reaction. Hence, no
more than provocative language, the law does not excuse actors whose behavior is caused by just any emotional disturbance. Rather, the
victim’s provoking act must arouse the defendant’s emotions to such a degree that it distorts his very process of choosing.
In re Petition of T.W.M.
D.C.C.A. Nos. 06-FS-137 & 06-FS-1552. Decided Feb. 5, 2009. Before Washington, C.J., and Fisher and Blackburne-Rigsby, J.J., with the
Chief Judge writing for the Court. (Hon. Odessa F. Vincent, Trial Judge). Stephen L. Watsky, Esq. for Appellant T.B., the Father. Joanne
47
Schamest, Esq., for Appellant S.E., the Mother. Larry Banks Broadhead, Esq., Guardian Ad Litem for T.E., the Child. Sanya Sukduang,
Esq., with whom Timothy B. Donaldson, Esq. was on the brief, for Appellee, T.W.M., the Aunt and Petitioner below. Linda Singer, D.C.
Attny. Gen., Todd S. Kim, D.C. Sol. Gen., Donna M. Murasky, Dep. D.C. Sol. Gen., and Catherine Ferrando, Asst. D.C. Attny. Gen., filed a
statement in lieu of a brief for the District of Columbia. DWLR page no. 337.
[Editor’s Note: Using this case as a template, the resources involved in determining the fate of this single child would typically include
the following: Court-appointed lawyers for the child, each parent, the two competing petitioners for adoption, plus an attorney-guardian ad
litem for the child. In addition there were the various personnel involved in the unsuccessful social services on behalf of the mother. At least
three social workers and other CFSA staff were involved, plus two medical expert witnesses at trial whose fees would also be paid by the
Court, with the possibility of per diem court attendance fees for any lay witnesses. On appeal there were court-appointed lawyers again for
each parent. Throughout both levels of legal proceedings other lawyers appeared for the Government and on behalf of CFSA. Finally, of
course, there were the resources of the Trial Judge and three Appellate Judges, plus those on their staffs involved with the case, such as
law clerks and judicial administrative assistants. A conservative estimate would be that the case of this lone child involved the services of
a minimum of 30-35 highly trained professionals — all with the end result that it was returned to its starting point of six years earlier, with a
mandate for additional court proceedings that would invoke the expenditure of further similar resources de novo.]
FAMILY LAW / PARENTAL PREFERENCE AS TO ADOPTION / GRASPING THE PARENTAL INTEREST /
BASIS FOR “WEIGHTY CONSIDERATION” OF THE PREFERENCE
Even though parents have neglected a child almost totally due to their own life choices, leading them to drug addiction and incarceration
and resulting in their inability to care for the child, they retain their parental rights in choosing a proper caregiver for the child. When the
child is before the Court for adoption that preference is entitled to “weighty consideration” in making the decision. Only a formal termination
of parental rights can deprive them of that prerogative and only clear and convincing evidence that the preference is not in the best interest
of the child can overcome it. The legal rationale of “failure to grasp parental rights” is not the proper standard to apply in such a case. In
determining whether competing evidence should be adduced to reach the clear and convincing standard a trial court may not substitute its
own conclusion for uncontradicted expert witness testimony.
DC SUPERIOR COURT
BYRD
Davis v Davis
D.C. Super. Ct. No. DRB-3613-05. Decided Dec. 15, 2008. (Jerry S. Byrd, J.). Alan Soschin, Esq., Counsel for Petitioner. Linda Davis,
Pro Se Respondent. DWLR page no. 721. Cite as 137 DWLR 721.
[Editor’s Note: This is the Trial Court’s ruling following remand by the Court of Appeals in Davis v. Davis, 136 D.W.L.R. 2285 (Oct. 21,
2008)].
FAMILY LAW / DIVORCE / DISPOSITION OF REALTY IN ANOTHER JURISDICTION
FORUM NON CONVENIENS
Where a divorce case includes disposition of real property located in another jurisdiction, a trial court must be assured that it has in personam
jurisdiction over both parties before it can make any equitable distribution of that property. At the same time, a court located at the situs
of that property may be in a better position to make rulings on the property and all interpersonal and other property and child custody and
support issues as between the parties. In such a case, the original court may dismiss the case on a forum non conveniens basis.
N.C. v P.F.
D.C. Fam. Ct. No. DRB -130-05. Decided May 4, 2009. (Jerry Stewart Byrd, J., Trial Judge). Curt S. Hansen, Esq., Counsel for the Father.
Barbara McDowell, Esq., Counsel for the Mother. DWLR page no. 1705. Cite as 137 DWLR 1705.
[Editors Note: Please also see P.F. v N.C. (DC Court of Appeals), 136 DWLR 1829 (August 20, 2008).]
INTRA-FAMILY LAW
CHILD CUSTODY / PRESUMPTIONS IN CASES INVOLVING INTRA-FAMILY OFFENSES / REBUTTING
SAME
The over-arching, but rebuttable, presumption in this area of the law is that joint custody is in the best interest of any child at issue except
in instances where a court has found by a preponderance of the evidence than an intra-family offense, child neglect or abuse, or parental
kidnapping has occurred. A parent who has sustained such an adverse ruling must go forward to present sufficient evidence to rebut that
presumption, which weighs heavily against him, else the law dictates that custody go to the other parent. The statute does not provide a
standard of proof for this burden but that applied in this case was the preponderance standard, both because this is the level of proof required
to show the offense and it is the usual standard for all D.C. law unless otherwise statutorily specified. Where one of the parents competing for
child custody has been adjudicated to have perpetrated intra-family violence on the other, special care must be taken to ensure the safety of
the victim, particularly during visitation. Among the factors typically considered in awarding custody are whether any child has experienced
shock, fear, guilt, and impairment of self-esteem or socialization skills resulting from the intra-family violence. If none is found and sufficient
competing rebuttal evidence has been presented, custody may be awarded to the intra-family offender.
48
CHRISTIAN
US v Harris
D.C. Super. Ct. Crim. No. 2008-CMD-16425. Decided Oct. 29, 2008. (Christian, Kaye K., J.) United States Attorney’s Office for the United
States. Justin A. Okezie, Esq. for the Defendant. DWLR page no. 429. Cite as 137 DWLR 429.
JENCKS MATERIALS / LOST DOCUMENTATION / SANCTIONS IMPOSED / ARRESTING OFFICER’S TESTIMONY STRICKEN
The Government and collateral agencies in the criminal justice process have an obligation to preserve documents that might be relevant
to trial, including those which might be helpful to the defendant. These “Jencks Materials” include any document containing a substantially
verbatim written statement made by or adopted by a witness reasonably contemporaneous with the events at issue, usable for cross-examination of that witness. If such have been lost or destroyed, the Court must make an additional inquiry as to the circumstances involved and
then determine whether a defendant is prejudiced by the lack of access thereto. The issue is enhanced if the Court has already ordered the
Government to produce such materials because any sanctions involved may become more stringent. In addition to the foregoing factors, the
Court must then analyze the policy in place, if any, designed to ensure the preservation of such documents, the degree of negligence or bad
faith involved, the importance of the lost documents and the magnitude of the impact that the loss has on the evidence, and the competing
evidence of guilt adduced. A traffic Notice of Infraction (NOI) and all MPD booking forms are potential Jencks materials. Failure to produce
them may subject the Government to the imposition of sanctions at trial, such as the striking of the testimony of the pertinent witness.
CLARK
Feeney v Joseph J. Magnolia, Inc
D.C. Super Ct. No. 2006-CA-001931B. Decided Jan. 13, 2009. (Jeanette J. Clark, J.). Geoffrey M. Bohn, Esq. and Robert A. Battey, Esq. for
the Plaintiff. Michael N. Petkovich, Esq. and Andrew S. Cabana, Esq. for the Defendant. DWLR page no. 197. Cite as 137 DWLR 197.
[Editor’s Note: This case is a rare award of substantial attorney’s fees in the Superior Court under the DCMWA. Previous minimum wage
cases published in these pages include the following: Beard v. D.C. Housing Authority, 136 D.W.L.R. 2529 (Nov. 21, 2008)(D.D.C., Roberts,
J.)(private accord and satisfaction held to be an impermissible resolution in an FLSA wage dispute); Curry v. Sutherland, 111 D.W.L.R.
1613 (Aug 22, 1983)(D.C. Super. Ct., Wertheim, J.)(attorney’s fees awarded in D.C. Minimum Wage case in Small Claims Branch); District
of Columbia v. P&Z Co., Inc., 105 D.W.L.R. 2073 (Nov. 16, 1977)(OSHA does not pre-empt provisions of D.C. Minimum Wage Act which
required reporting injuries to employees)(D.C. Super. Ct., Neilson, J.); District of Columbia, v. Schwerman Trucking Co., 100 D.W.L.R. 601
(Mar. 29, 1972)(D.C. Super. Ct., Stewart, J.); and Altman’s Parking v. Newman, 99 D.W.L.R. 917 (May 25, 1971)(D.C. Super. Ct., Harris,
J.)(Injunction to preclude the D.C. Minimum Wage Board from holding hearings on non-specific occupational entity, denied). Only one of
these cases (Currey), however, awarded attorney’s fees.]
D.C. MINIMUM WAGE ACT
APPLICATION FOR STATUTORY ATTORNEY’S FEES, COSTS, AND PRE-JUDGMENT INTEREST GRANTED
The D.C. Minimum Wage Act mandates that, if represented by legal counsel, an employee prevailing in any substantial manner in a lawsuit
under that statute must be awarded reasonable attorney’s fees and costs, to be determined within the sound discretion of the Trial Judge,
who is authorized to adjust the total awarded according to the traditional lodestar formula and the well-known Laffey Matrix. Moreover, similar
reasonable fees and costs are to be awardable on the same basis for the fee application itself. In addition, a separate statute requires that
in such cases the employee is entitled to pre-judgment interest if the sum awarded at trial was an easily ascertainable liquidated debt.
CUSHENBERRY
US v Dante Carpenter aka Cornell Swangin, et al
D.C. Super. Ct. Crim. Nos. 2007 CF3 27289; 2007 CF3 28751; & 2007 CF3 27290. Decided May 20, 2009. Harold L. Cushenberry, Jr.,
J. Sharad Khandelwal and Keith Becker, Asst. U.S. Attnys., for the United States. Kenneth D. Auberback, Esq., Ronald Horton, D.C. Pub.
Def. Serv., and Charles Daum, Esq., for the respective Defendants. DWLR page no. 1193. Cite as 137 DWLR 1193.
JUROR’S FAILURE TO DISCLOSE FELONY CONVICTION / JUROR’S VISIT TO CRIME SCENE DURING
TRIAL / BOTH HELD INSUFFICIENT TO OVERTURN CONVICTION
Motions for a new trial are to be granted only if “required in the interest of justice” and “only under exceptional circumstances,” with the
defendant having the burden of proof on these issues, leading to the demonstration that the s/he “suffered actual prejudice,” which is “the
controlling question.” If the Defendant can establish a “substantial likelihood” of actual prejudice, then the burden shifts to the Government
to show that the contact “was harmless or non-prejudicial.” All reasonable doubts as to impartiality must be resolved in favor of the defendant. Where an issue of potential juror bias is raised, however, it “is not presumed or imputed from the fact alone of the juror’s exposure to
extraneous material” and a fact-finding hearing must be held on the issues presented. A sitting juror’s inadvertent visit to the crime scene will
49
not necessarily require a new trial unless factors of time, duration, actions, and discovery are shown to have provided taint and prejudice. In
a case where defendants have been acquitted of the most serious charge presented, the fact that a juror failed to disclose a felony record
does not constitute sufficient prejudice to require a new trial.
DUNCAN-PETERS
Shoetan v Link, et al
D.C. Super. Ct. No. 2005-CA- 5566 L(RP). Decided Nov. 13, 2009. Before Stephanie Duncan-Peters, J. (Hon. Alfred S. Irving, Trial Judge).
Stephen J. O’Connor, Esq. and Ziad P. Haddad, Esq. for the Plaintiff. Paul D. Hunt, Esq. for the Defendants. David A. Bradley, Asst. D.C.
Att. Gen. for the District of Columbia. DWLR page no. 2685. Cite as 137 DWLR 2685.
[Editor’s Note: Other Superior Court Judges have previously issued Rule 60(b) opinions appearing in the Daily Washington Law Reporter.
These include: W.F. v. K.J., 128 D.W.L.R. 1045, 1081 & 1093 (May 11 & 16-17, 2000)(Hazbin, C.)(final judgment of paternity may be
reopened under Rule 60(b) upon a proper showing and record with appropriate safeguards); Horton v. Sodimu, 121 D.W.L.R. 1397 (July
9, 1993)(Byrd, C.)(child support order not recognized under the rule); Shipley v. Steadly, 119 D.W. L.R. 1577 (July 26, 1991)(Byrd, C.)
(unusual circumstances not found for rule purposes); and Kaushiva v. Local 2142, 108 D.W.L.R. 2089 (Nov. 5, 1980)(Goodrich, J.)(denial
of rule motion to change arbitration award).].
CIVIL PROCEDURE / RULE 60(b) / EQUITY JURISDICTION
APPLICABILTY UNDER TAX CLARITY ACT / COURT REORGANIZATION ACT / HOME RULE ACT
The Home Rule Act constituted a Congressional decision to allow the citizenry of the District of Columbia expanded rights for local selfgovernment but it expressly withheld from the City Council authority to enact any law relating to the organization and jurisdiction of the District
of Columbia court system which itself was also the result of the prior Congressional enactment of the Court Reorganization Act of 1970,
creating the Superior Court as an Article I court of general jurisdiction. The locally-enacted Tax Clarity Act of 2000 purports to remove from
the Superior Court any authority to re-visit final judgments in tax lien cases, thus obviating the provisions of Civil Rule 60(b) which provides
several options for the Superior Court to do so. Having exceeded its local authority, the Council’s enactment, ironically, violated the Home
Rule Act, which contained the provision excepting the local court system therefrom. Where a statute and a rule conflict a court must, if possible, harmonize them so as to effectuate the purpose of both, but where that is impossible the Congressional grant of authority must trump
any local statute. Even without the facial conflict, this concept would have deleterious effects on the administration of justice.
KRAVITZ
Despertt v Greensmith’s, Inc. et al
D.C. Super Ct. No. 08-CA-7312. Decided Aug. 7, 2009. (Neal J. Kravitz, J.). Mark M. Kodama, Esq. for Plaintiff. John D. McGavin, Esq.
for Defendant Greensmith’s, Inc. Jacquelyn M. Kramer, Esq. for Defendant Commissariat of the Holy Land for the United States of America.
DWLR page no 1741. Cite as 137 DWLR 1741.
[Editor’s Note: The underlying case in one of the authorities referenced by the Court in this matter, Albertie v. Louis & Alexander Corp.,
646 A.2d 1001 (D.C. 1994) was also the subject of a Memorandum Opinion by the Trial Court published at 121 D.W.L.R. 313 (Feb. 18,
1993)(Salzman, J.)(D.C. law does not impose tort liability on adjacent landowner for pedestrian injured because of snow accumulation on
publicly-owned sidewalks).
TORT LAW
D.C. SNOW REMOVAL STATUTE / LIABILITY FOR NEGLIGENT ENHANCEMENT OF EXISTING HAZARD
Although the D.C. Snow Removal Statute creates a “duty” for every property owner or occupant to remove accumulated snow and ice
from the public sidewalk abutting their property, ensuing case law holds that the statute does not also create a private right of action for
personal injury due to failure to do so. Where, however, a property owner either negligently removes the snow/ice, or negligently hires
and supervises another to do so, and in so doing actually increases the original danger, both may be held liable for injury to a third person
proximately caused thereby.
Mokhtarzadeh v DC
D.C. Super. Ct. No. 08-CA-4751 (Neal E. Kravitz, J.). Decided Aug. 31, 2009. Craig Miller, Esq. for Plaintiff. Soriya R. Chhe, Asst. D.C.
Attny. Gen. for Defendant. DWLR page no. 2257. Cite as 137 DWLR 2257.
TORT LAW
D.C. SNOW REMOVAL STATUTE / ORDINARY CARE STANDARD HELD APPLICABLE TO WALKWAYS
ON PUBLIC SCHOOL GROUNDS
In general, where public sidewalks are concerned, the standard of care attributable to accumulated snow and ice requires stricter evidence that
the condition is more hazardous than those which may generally exist throughout the city, but on walkways located on public school grounds,
the lesser standard of failure to maintain ordinary care will allow for a proper claim for injury proximately caused by the accumulation.
Tyler v DC
D.C. Sup. Ct. No. 08-CA-6917. Decided Nov. 19, 2009. (Neal E. Kravitz, J.). James Tyler, Plaintiff Pro Se. Esther Yong, Asst. D.C. Attny.
Gen. for Defendant. DWLR page no. 2509.
SECTION 12-309 NOTICE TO THE DISTRICT GOVERNMENT
50
LETTER TO MAYOR HELD SUFFICIENTLY DETAILED TO CONSTITUTE SAME
The purpose of Section 12-309 is to give the D.C. Government an opportunity to investigate potential claims while the evidence is still available and to help promote correction of defective conditions, thereby increasing public safety. It does not require that the Government receive
notice complete enough to state a formal cause of action. It is to be liberally interpreted. Notice is sufficient if the District, in the exercise
of due diligence, should have been able to locate the defect. In close cases the Court must resolve doubts in favor of finding compliance
with the statute.
IRVING
Williams v Neill and Bynum
D.C. Super. Ct. No. 2001-CA-2921 B. Decided Nov. 13, 2009. (Alfred S. Irving, Jr., J.). Gregory Latimer, Esq. and Ted Williams, Esq. for
the Plaintiff. Matthew August LeFande, Esq. for Defendant Neill. Kenneth D. Bynum, Esq. also entered an appearance. DWLR page no.
2481. Cite as 137 DWLR 2481.
CIVIL PROCEDURE / SUMMARY JUDGMENT / INSUFFICIENCY OF OPPOSITION
INTERFERENCE WITH A CONTRACTUAL RELATIONSHIP / CONTRACT AT WILL / INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS / PROOF OF DAMAGES
Proof of damages is an essential element to the tort of Interference with a Contract. When the issue is presented in opposition to a Motion
for Summary Judgment, that evidence must be presented “with specificity” and repeated claims that damages have ensued are insufficient.
Unless the parties indicate intent to enter a contract of employment for a specified term, the employment relationship is terminable at will.
Moreover, when an employment relationship does not provide for a specific term there can be no contractual rights. In terms of attorney’s
fees suits of this nature are covered by the American Rule on this issue whereby, absent an express agreement to the contrary, each party
bears its own fees and expenses.
RETCHIN
Jackson v DC Board of Elections and Ethics
D.C. Super. Ct. No. 2009 CA 004350 B (Judith E. Retchin, J.). Decided June 30, 2009. Counsel of Record: Steven Aden, Esq.; Kenneth
McGhie, Esq.; Andrew Saindon, Esq.; Chad Copeland, Esq.; Ellen Efros, Esq.; Allison Wood, Esq.; and Brian Raum, Esq. DWLR page no.
2473. Cite as 137 DWLR 2473.
[Editor’s Note: The 1992 same-sex marriage case referred to in this opinion was first published from the Trial Court level as Dean v. District
of Columbia, 120 D.W.L.R. 769 (D.C. Super. Ct., July 31, 1992)(Bowers, J.), holding that same-sex marriages are not authorized under
the current D.C. Marriage and Divorce Act and that gender-based distinctions as to who may validly marry are not proscribed by the D.C.
Human Rights Act. That ruling was affirmed on appeal in the same case at 653 A.2d 307 (D.C. 1995)(Ferren, Terry, and Steadman, J.J.)
(per curiam)].
PUBLIC REFERENDUM / SAME-SEX MARRIAGE
D.C. JURY AND MARRIAGE AMENDMENT ACT / D.C. HUMAN RIGHTS ACT
A public referendum cannot be called simply because citizens disagree with a duly-enacted D.C. statute. Similarly, a referendum, the result
of which may be a violation of the D.C. Human Rights Act is not permissible. Those who wish to challenge legislation must do so either
through the political process or via a public initiative. Since the Court of Appeals last ruled on the subject of same-sex marriages in 1995,
holding that it was not the “public policy” of the District, that pronouncement is evidently no longer accurate in light of the passage of the
Jury and Marriage Amendment Act of 2009, which recognizes valid same-sex marriages from other jurisdictions. A court will not involve itself
in the making of law or create conditions which hamper that process in a democratic society. To grant an injunction against the effective
date of a local statute which has been approved by Congress would violate the well-defined roles of the three branches of government. A
referendum on whether to allow same-sex marriages would enable the voters to decide to reject the valid marriages of persons from other
jurisdictions based entirely on their sexual orientation, thus potentially authorizing discrimination prohibited under the Human Rights Act.
This subject, therefore, is not a proper one for the referendum process.
RYAN
In the Matter of D.W.
D.C. Fam. Ct. No. 08 NEG 658. Decided June 11, 2009. On Petition for Review from a Decision by a D.C. Family Court Magistrate Judge.
(Hon. J. Michael Ryan, Reviewing Judge). Matthew I. Fraidin, Esq., for the Mother. Charmetra Palmer, Asst. D.C. Attny. Gen., for the
Government. Stephen Watsky, Esq., Educational Attorney. Jaerelyn Gladden, Esq., Guardian Ad Litem. Angela T. Green, Esq., for the
Unknown Father. DWLR page no. 1513. Cite as 137 DWLR 1513.
FAMILY LAW / REMOVAL OF CHILD FROM PARENTAL HOME
DUE PROCESS REQUIRES ADEQUATE NOTICE AND MEANINGFUL
OPPORTUNITY TO CONFRONT THE ISSUES
Procedural due process requires proper notice and a fair disposition hearing. An Associate Judge’s review of a Magistrate Judge’s final ruling
is conducted on the same standard as that utilized by the Court of Appeals for the final judgments of Associate Judges of the Superior Court.
51
Review of a Magistrate Judge’s ruling at a Disposition Hearing is conducted on an abuse of discretion basis, determining whether the Trial
Court considered on all relevant and proper factors, ruled based on substantial reasoning, and drawn from a firm factual foundation in the
record. All procedural due process rights apply to such hearings because of the impact of removal from the home and placement in foster
care may have upon a child and a parent’s right to develop a relationship with it. Although the statute requires that a Disposition Hearing
be conducted no later than 45 days from a child’s placement in foster care, it also provides express exceptions for “unusual circumstances”
and to obtain material evidence. A single incident of deliberate parental injury of a child does not necessarily render the parent a danger to
the child or require that other means be eschewed in order to keep the child in its home. An independent determination must be made as to
the causal nature of the abuse and whether it is likely to recur. If a parent’s mental health is a factor, appropriate evidence must be adduced
at the hearing and a factual basis established for using it as a basis for removal. The Government has the burden of proof in establishing a
case for removal and a Disposition Report that does not address substantive issues or inadequately does so, is insufficient on its face and
a parent must be afforded an opportunity to challenge same. Under such circumstances, where upon timely request, a parent has been
denied a continuance in order to address such issues; there has been a due process violation which requires a new hearing.
ZELDON
Moran v NFL Players, Inc., et al
D.C. Super. Ct. No. 2009-CA-6225 B. Decided Nov. 9, 2009. Before the Hon. Joan Zeldon. Lynne Bernabei, Esq. and Alan Kabat, Esq.
for the Plaintiff. John M. Simpson, Esq., Michelle, Pardo, Esq., Kara Petteway, Esq. and Richard C. Smith, Esq. for the Defendants. DWLR
page no. 2673. Cite as 137 DWLR 2673.
REMEDIES
PRELIMINARY INJUNCTION / OVERREACHING CONFIDENTIALITY AGREEMENT
A confidentiality agreement which precludes a person from pursuing valid administrative or judicial remedies for illegal discrimination or cooperating with governmental or law enforcement authorities is in violation of public policy and cannot serve as a basis for seeking equitable
relief to enforce same. In order to obtain a preliminary injunction a movant must not only show likelihood of success on the merits, inter alia,
but also demonstrate how the action complained of will have not simply a harmful connotation but an irreparable result.
US COURT OF APPEALS FOR DC
GARLAND
US v Blalock
U.S.App.D.C. No. 08-3020. Decided July 10, 2009. Before Ginsburg, Garland, and Kavanaugh, J.J., with Judge Garland writing for the
Court. (Hon. Henry H. Kennedy, Jr., Trial Judge). Edward C. Sussman, Esq., appointed by the Court, for the Appellant. Michael T. Ambrosino,
Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, Asst. U.S. Attny., on the brief, for the Appellee. DWLR page
no. 1545.
“IN CONNECTION WITH” ANOTHER OFFENSE DEFINED FOR ENHANCED SENTENCING PURPOSES /
VOLUNTARY INTOXICATION NOT AN AUTOMATIC DEFENSE TO A SPECIFIC INTENT CRIME
Although voluntary intoxication can prevent a defendant from forming the requisite state of mind for a specific intent crime, it does not always
have that effect and whether it does depends on the facts in each case. Not every immoderate ingestion of alcohol or illicit drugs ipso facto
turns a criminal defendant into someone who is so inebriated that he cannot control his actions and therefore is not legally liable for them.
While intoxication may act to reduce or remove inhibitions, it does not as readily negate criminal intent. For the purpose of determining specific
intent, one’s demonstrated presence of mind may belie a later claim as to a non-culpable state of mind. For the purpose of enhanced sentencing, a court may find that the use of a firearm in the principal offense may be considered “in connection with” an uncharged prospective
crime, particularly where the firearm is found in close proximity to a significant amount of undistributed but packaged illegal drugs. Even at
trial on such a prospective intent for distribution charge, the Government is not obligated to prove intent to distribute at any particular place
or time, but only that a defendant intended to distribute the drugs at a time within the period of limitations.
GINSBURG
US v Guillen
U.S.App.D.C. No. 07-3077. Decided Apr. 14, 2009. Before Ginsburg, Tatel, and Brown, J.J., with Judge Ginsburg writing for the Court.
Tony Axam, Jr., Asst. Fed. Pub. Def., with A.J. Kramer, Fed. Pub. Def. on the brief, for Appellant. Stratton C. Strand, Asst. U.S. Attny.,
with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III, Florence Pan, and Ronald Wesley Sharpe, Asst. U.S. Attnys., on the brief, for
PLEA BARGAIN
WAIVER OF RIGHT TO APPEAL WITHIN SENTENCING GUIDELINES
52
A defendant may permissibly enter into a plea agreement which contains a wavier of appeal of any sentence within the applicable Sentencing
Guideline range as long as the waiver is knowing, intelligent, and voluntary with advice of counsel. Other aspects of the sentence pertaining to impermissible departures from accepted procedures or which support colorable claims of constitutional violations may, however, still
be appealed.
GRIFFITH
US v $6,976,934.65 plus interest
U.S.App.D.C. No. 07-5383. Decided Jan. 27, 2009. Before Griffith, J. and Edwards and Williams, Sr. J.J., with Judge Griffith writing for the
Court. Juan Chardiet, Esq., with Daniel M. Press, Esq., on the briefs, for the Appellant. Robert Stapleton, U.S. Dept. of Justice, with A.J.
de Kluiver, U.S. Dept. of Justice, on the brief, for the Appellee. DWLR page no. 281.
[Editor’s Note: This is the type of case in which Ambrose Bierce (1842-1914), author of the Devil’s Dictionary (1911), might have included
therein under the definition of “Appellate Court: A group of reviewing officers who, after all the fighting is over, are sent to the battlefield
with instructions to shoot all the survivors.”].
CIVIL FORFEITURE
FEDERAL DISENTITLEMENT ACT / FUGITVITY TO AVOID PROSECUTION DEFINED UNDER THE CIVIL
FORFEITURE LAWS
Under the federal Fugitive Disentitlement Act, before proceeds from an allegedly unlawful enterprise can be forfeited, the accused must have
notice or knowledge that an arrest warrant or criminal proceeding is outstanding against him. Actual notice is not required but constructive
notice may be shown by the accused’s voluntarily leaving the U.S., refusing to return, or by other circumstances demonstrating that he
remains abroad in order to avoid prosecution. Whether the charge underlying the warrant may have expired under the statute of limitations
is not relevant to determining this aspect of the Act. Knowledge cannot not be imputed to the accused through lawyers representing a
corporate entity involved in the forfeiture proceedings, even where it is shown that the accused is the majority stockholder thereof, because
the lawyers represent the corporation, not its stockholders. Constructive notice cannot be shown via a principal-agent relationship because
the corporation is not necessarily the accused’s agent for such purposes. Likewise, publicity over the case cannot impute knowledge unless it is shown that the accused was aware of same. Failing to re-enter the country cannot be deemed knowledge in and of itself because
there may be other valid reasons for an accused not to do so, especially if he has become a citizen of another country. Funds under the Act
may be deemed related to the criminal prosecution on a showing that they were involved in, derived from, were traceable to, obtained by,
or used to facilitate the criminal activity for which the fugitive is evading prosecution. Mere adoption of foreign citizenship standing alone is
not sufficient evidence of evading prosecution.
US v Ashton
U.S. App.D.C. No. 07-3015. Decided Feb. 17, 2009. Before Henderson, Rogers, and Griffith, J.J., with Judge Griffith writing for the Court
and a separate concurring opinion by Judge Rogers. Cheryl D. Stein, Esq. for the Appellant. Joseph P. Cooney, Asst. U.S. Attny., with
Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III and Elizabeth Trosman, Asst. U.S. Attnys., for the Appellee. DWLR page no. 465.
IN-TRIAL REQUEST FOR DELAY DENIED ON FINDING OF LACK
OF DUE DILIGENCE AND THAT THE PROFFER WAS IRRELEVANT
A request for delay of a trial should, if at all possible, be broached in a timely pre-trial motion, not during the trial itself. Failure to take any
steps to ensure that a Government witness, such as a police officer, would be made available at trial, does not lay a foundation for a spontaneous in-trial request for a delay to procure his presence. Based on a proffer that an absent witness, who had interviewed the defendant
at the stationhouse, would confirm the defendant’s theory that he never made a spontaneous admission of criminal liability at the time of
his arrest, is irrelevant inasmuch as it commonly happens that such a change of mind occurs after an accused has had that interval to
reconsider matters.
US v McCants
U.S.App.D.C. No. 06-3161. Decided Feb. 10, 2009. Before Griffith, J. and Edwards and Williams, Sr. J.J., with Judge Griffith writing for
the Court. Carlos J. Vanegas, Asst. Fed. Pub. Def., with A.J. Kramer, Fed. Pub. Def. on the brief, for Appellant. Steven E. Swaney, Asst.
U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese, III, Mary B. McCord, and Virginia Cheatam, Asst. U.S. Attnys., on the
FEDERAL SENTENCING GUIDELINES
“SOPHISTICATED MEANS” AND “RELEVANT CONDUCT”
DENOTED FOR UPWARD DEPARTURE PURPOSES
Under the Federal Sentencing Guidelines, the calculation of an offense level depends on the amount of loss caused, not simply the conduct
upon which a person was convicted, allowing for consideration of additional “relevant conduct” for which he was arguably responsible.
Where a defendant’s conduct effectively aided and abetted a related offense it may be considered, irrespective of the defendant’s original
intent. At the same time, however, there must be a substantive link between the crime for which the defendant was convicted and the
relevant conduct, particularly in terms of the concurrence of events, which must be contemporaneous. A sentencing court, however, may
still engage in an upward departure from the non-binding Guidelines as long as it provides a good reason for doing so. The means used
53
to perpetrate a crime such as counterfeiting identity documents in order to qualify as “sophisticated” need not reach the extremes of an
international level. The fact that one can image means more sophisticated and complex than those at issue does not necessarily preclude
a finding of “sophistication.”
HENDERSON
Hudson and Clayton v DC
U.S.App.D.C. No. 07-7078. Decided Mar. 3, 2009. Before Sentelle, C.J., and Henderson and Kavanaugh, J.J., with Judge Henderson
writing for the Court. James C. McKay, Jr., Sr. Asst. D.C. Attny. Gen., with Peter J. Nickles, D.C. Attny. Gen., Todd S. Kim, D.C. Sol. Gen.,
and Donna M. Murasky, Dept. D.C. Sol. Gen., on the brief, for Appellants. Gregory L. Lattimer, Esq. for Appellees. DWLR page no. 1041.
EVIDENCE
RULE 404(b) VIOLATION
A Trial Court’s allowing cross-examination of a witness utilizing questions containing the inference of charges of prior misconduct, resulting
in answers that do not amount to admissions, further permitting closing argument that these putative prior bad acts show the propensity of
the accused to commit similar acts sub judice and to be mendacious about them, all over timely objection and without a requested curative
instruction, are cumulative violations of Fed. R. Evid. 404(b) and constitute reversible error.
US v Kelly
U.S.App.D.C. No. 07-3032. Decided Jan. 13, 2009. Before Ginsburg, Henderson, and Rogers, J.J., with Judge Henderson writing for the
Court and a concurring opinion by Judge Rogers. Raymond J. Rigat, Esq., appointed by the Court, for the Appellant. SuzAnne C. Nyland,
Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., and Roy W. McLeese III and Mary B. Mc Cord, Asst. U.S. Attnys. on the brief. DWLR
page no. 269.
DOUBLE JEOPARDY HELD INAPPLICABLE / POSSESSION WITH INTENT TO DISTRIBUTE AND CONSPIRACY TO DISTRIBUTE DISTINGUISHED
Possession With Intent to Distribute Cocaine and Conspiracy to Distribute Cocaine are not the same offense, each having an element that the
other does not, and therefore successive federal prosecutions of the same defendant (and use of the same firearm, if relevant) are not barred
by the Double Jeopardy Clause. The concept of aiding and abetting is inherent in every principal charge and does not need to be separately
indicted. Sufficient intent to use a firearm in connection with a drug charge can be inferred from the surrounding circumstances.
KAVANAUGH
US v Washington
U.S.App.D.C. No. 06-3093 (Mar. 27, 2009). Before Ginsburg, Garland, and Kavanaugh, with Judge Kavanaugh writing for the Court. Beverly
G. Dyer, Asst. Fed. Pub. Def., with A.J. Kramer, Fed. Pub. Def. on the brief, for Appellant. Stratton C. Strand, Asst. Pub. Def., with Jeffrey
A. Taylor, U.S. Attny., and Roy W. McLeese III, Asst. U.S. Attny., on the brief, for Appellee. DWLR page no. 937.
[Editor’s Note: This opinion, while not dramatic in its impact, states the common sense rules regarding such police stops and is offered in
conjunction with a previous U.S. District Court decision, Mills v. District of Columbia, 136 D.W.L.R. 2449 (Nov. 12, 2008)(Richard J. Leon,
J.), which upheld the reasonableness of traffic checkpoints in “Neighborhood Safety Zones.”]
REASONABLENESS OF POLICE STOP IN HIGH CRIME AREA
A traffic stop and vehicle search are to be evaluated under an objective standard. When there is reason to make a stop for a traffic violation
and the police have a reasonable fear, based upon “specific and articulable facts,” that the driver may be armed, they may both frisk the
driver and search the vehicle. Police concern for the safety of everyone involved in a traffic stop does not terminate until the officers allow
the driver to depart. High Impact Aggressive Traffic Patrols in high crime areas are legitimate law enforcement methods.
RANDOLPH
US v Turner
U.S.App.D.C. 07-3107. Decided Dec. 5, 2008. Before Randolph, Rogers, and Tatel, with Judge Randolph writing for the majority and Judge
Tatel dissenting. Arthur Luk, Esq., appointed by the Court, with Michele J. Woods, Esq., appointed by the Court, on the brief, for Appellant.
Edward P. Sullivan, Attorney, U.S. Dept. of Justice, with Daniel A. Petalas, and Ann C. Brickley, Attorneys for the Appellee. Roy W. McLeese
III, Asst. U.S. Attny., entered an appearance. DWLR page no. 145.
EX POST FACTO CLAUSE / UTILIZATION OF PERTINENT U.S. SENTENCING GUIDELINES
Every conspiracy contains an implicit agreement not to be discovered. Absent an express agreement to extend the conspiracy to avoid
discovery, however, this implicit goal does not extend the conspiracy to subsequent acts or statements after the main object of the conspiracy
has been attained. Otherwise, the statute of limitations would never run and the exposure to acts and statements of co-conspirators would
54
implicate others indefinitely. Even though now non-binding, the pertinent U.S. Sentencing Guidelines are those that were in effect at the
time of the offense, not necessarily those in effect at the time of the sentencing. If the latter is utilized to the disadvantage of the accused,
it violates the Ex Post Facto clause of the U.S. Constitution.
ROGERS
Potter v DC
U.S.App.D.C. No. 07-7163. Decided Mar. 6, 2009. Before Rogers and Tatel, J.J., and Williams, Sr. J., with Judge Rogers writing for the
Court and a concurring opinion by Judge Williams. Richard S. Love, Esq., Sr. Asst. Atty. Gen., with Peter J. Nickles, Interim D.C. Attny.
Gen., Todd S. Kim, D.C. Sol. Gen., and Donna Murasky, Dep. D.C. Sol. Gen., for Appellant. Joshua A. Doan, Esq., with William D. Iverson,
Esq. and Arthur B. Spitzer, Esq., for Appellees. DWLR page no. 1033.
CIVIL PROCEDURE / APPELLATE PROCEDURE
MAINTAINING RECORD ON APPEAL
The grant of summary judgment is reviewed de novo on appeal, by which is meant that the appellate court confines such a review to issues, arguments, and the record made below, not that it will permit new arguments to be made on appeal. Ordinarily no such new issues
or reformation of previous arguments will be considered on appeal, absent unusual circumstances, which themselves must be shown on
appeal. Where the appeal arises under the Religious Freedom Restoration Act, an additional two-pronged appellate standard is layered
on top of this one in which the Government must show that the action challenged was both justified by a compelling governmental interest
and was narrowly tailored to have the least restrictive effect on a religious practice.
US v Coleman
U.S.App.D.C. No. 05-3182. Decided Jan. 16, 2009. Before Sentelle, C.J., and Ginsburg and Rogers, J.J., with Judge Rogers writing for
the Court. Beverly G. Dyer, Asst. Fed. Pub. Def., with A.J. Kramer, Fed. Pub. Def. on the brief, for Appellant and an appearance by Neil H.
Jaffe, Asst. Fed. Pub. Def. Stratton C. Strand, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, and Mary B. McCord,
Asst. U.S. Attnys., on the brief, for Appellee. DWLR page no. 209.
PLAIN ERROR IN COURT’S READING THE UNREDACTED INDICTMENT TO THE JURY VENIRE
Where proof of the defendant’s prior felon status is a required element of the offense charged, it is reversible error for the Trial Court to read
to the jury the unredacted indictment referring to the prior felony offense where the defense has offered to stipulate felon status and either
a defense is compromised or the government’s evidence of guilt is not strong.
SENTELLE
Fabi Consruction Co., Inc. v Secretary of Labor
U.S.App.D.C. No. 06-1244. (Decided Aug. 29, 2008). Before Sentelle, C.J., and Ginsburg and Brown, J.J., with the Chief Judge writing for
the Court. [Counsel not given in published opinion]. DWLR page no. 1.
EQUAL ACCESS TO JUSTICE ACT / ATTORNEY’S FEES
PROPER BILLING AND EXPENSE FORMS / “PREVAILING PARTY” AND “SUBSTANTIALLY JUSTIFIED”
POSITIONS / “WEIGHTING” SUCCESSFUL AND UNSUCCESSFUL DEFENSES
A party that has successfully defended against an adverse administrative ruling as to safety violations is not automatically entitled to recovery
of attorney’s fees under the Equal Access to Justice Act, inasmuch as the statute provides that fees are not to be awarded in cases where
the Government’s position, though unsuccessful, was “substantially justified.” Even when fees are in order, the request must be in proper
form and sufficiently clear detail. Tasks that have been lumped together, lack adequate detail, or relevancy, may be denied or curtailed, in
this case by an overall reduction of 75%.
Mills v DC
U.S.App.D.C. No. 08-7127. Decided July 10, 2009. Before Sentelle, C.J., and Ginsburg and Rogers, J.J., with the Chief Judge writing for
the Court. (Richard J. Leon, Trial Judge). Mara E. Verheyden-Hilliard, Esq., with Carl Messineo, Esq., on the brief, for Appellants. Todd S.
Kim, D.C. Sol. Gen., with Peter J. Nickles, D.C. Attny. Gen., Donna Murasky, Dep. D.C. Sol. Gen., Stacy Anderson, Asst. D.C. Attny. Gen.,
[Editor’s Note: The DWLR published a synopsis of the District Court’s original opinion in this case at 136 D.W.L.R. 2449 (Nov. 12, 2008)
(Leon, J.), deeming it an incisive ruling based on a thorough rendition of the state of the law. The U.S. Court of Appeals disagreed. Since
then, D.C. Attorney General Peter J. Nickles has publicly decried the Appellate Court’s decision as “overbroad,” contending that the NSZ
program was “properly tailored … in response to specific, credible threats of imminent violence.” He announced that the District will file a
Motion for Reconsideration. Nikita R. Stewart, “City Requests Rehearing on Checkpoints Ruling,” Washington Post, Aug. 10, 2009].
CONSTITUTIONAL LAW
POLICE CHECKPOINTS ON TRAFFIC ENTERING “NEIGHBORHOOD SAFETY ZONES” DECLARED VIOLATION OF THE FOURTH AMENDMENT’S PROHIBITION ON “UNREASONABLE SEARCHES”
Traffic checkpoints established for the purpose of “general crime control” are impermissible violations of the Fourth Amendment, under which
55
suspicionless traffic stops are deemed to be “unreasonable seizures.” The only exceptions to this general rule are for border security and
traffic safety. The occurrence of high criminal activity in an area does not justify stopping traffic on the mere possibility, without individualized
suspicion, that a motorist may become the perpetrator of a crime which has not yet even occurred.
US v Keleta
U.S.App.D.C. No. 07-3021. Decided Jan. 23, 2009. Before Sentelle, C.J., Henderson, J., and Williams, Sr. J., with the Chief Judge writing
for the majority and a dissent by Judge Williams. Tony Axam, Jr., Asst. Fed. Pub. Def., with A.J. Kramer, Fed. Pub. Def. on the brief, for
Appellant. Leslie Ann Gerardo, Asst. U.S. Attny., with Jeffrey A. Taylor, U.S. Attny., Roy W. McLeese III, Florence Pan, and Jay I. Bratt,
Asst. U.S. Attnys., for the Appellee. DWLR page no. 249.
“SAFE HARBOR” PROVISION OF U.S. SENTENCING GUIDELINES HELD INAPT
A sentence within a properly calculated U.S. Guidelines range is entitled to a rebuttable presumption of reasonableness. In calculating a base
offense level, where the offense involves the receiving or transmittal of funds, the term “loss” does not necessarily mean a loss to a victim,
but involves the total amount of funds “involved,” regardless of their source or purpose. The defendant has the burden of proof by a preponderance of the evidence for the applicability of the Safe Harbor Provision or any other reduction in sentencing under the Guidelines.
TATEL
Pro Football, Inc. v Harjo
U.S.App.D.C. No. 03-7162. Decided 15, 2009; Reissued May 27, 2009. Before Sentelle, C.J., and Tatel and Henderson, J.J., with Judge
Tatel writing for the Court. Philip J. Mause, Esq. and Jeffrey J. Lopez, Esq. on the briefs for Appellants. Robert L. Raskopf, Esq. and Sanford
I. Weisburst, Esq. on the brief for Appellee. DWLR page no. 1173.
EQUITY / LACHES
LANHAM ACT TRADEMARK NAME DISCRIMINATION / WASHINGTON REDSKINS
Trademarks that are deprecatory or denigrating to certain classes of the population are disallowed by the Lanham Act. Where a trademark
name, however, such as that of a professional athletic team and related entities, has been used for a significant period of time without challenge, the issue of laches factors into any new litigation. A complainant must justify any such long delay in failing to assert its rights and an
opponent must show a prejudice, depending on the length of the delay, if such action is allowed. The delay must be measured from the time
that the youngest complainant has attained the age of majority, not necessarily from the date on which the otherwise offensive trademark
had been registered. Years of investment in use, promotion, and good will generated from a trademark which might earlier have proven
sufficiently offensive, could establish sufficient prejudice against rescinding or changing it later on. Inasmuch as most of these decisions
are equitable in nature, any appellate review is governed by a standard of deference to the trial court’s findings, based upon the principle
of abuse of discretion.
AYCOCK
Allen, et al v Schaefer, Sec. of Agriculture
N.D. Miss. (transferred to D.D.C.). 4:08 CV 120-SA-DAS Decided July 27, 2009. (Hon. Sharion Aycock, Trial Judge). [Counsel not given
in published opinion]. DWLR page no. 1733.
CIVIL PROCEDURE
DUAL BASES FOR TRANSFER TO ANOTHER DISTRICT COURT DISTINGUISHED
There are two different bases on which a case may be transferred from one U.S. District Court to another under federal civil procedure statutes. The more familiar basis is under 28 U.S.C. § 1404, which permits transfer for the convenience of the parties, witnesses, or the interest
of justice, to any other District Court where the action might have been brought. The other basis is pursuant to 28 U.S.C. § 1631, which
permits transfer from a District Court which lacks subject matter jurisdiction to one wherein the claim properly could have been brought.
BATES
Ellis v Georgetown University Hospital
D.D.C. No. 08-1174. Decided July 6, 2009. (James D. Bates, J.). [Counsel not given in published opinion.]. DWLR page no. 1474.
EMPLOYMENT DISCRIMINATION LAW / ADA / D.C. HUMAN RIGHTS ACT
UNCHECKED BOX ON FILING FORM DOES NOT BAR TO EEO CLAIM
All EEO-based cases operate on a threshold requirement that the claimant must already have exhausted all administrative remedies and the
ensuing lawsuit itself is limited to the allegations contained in the original EEOC complaint or those that are “likely or reasonably related to
the allegations of the charge.” The entire EEOC process is geared to facilitating the ability of laypersons make legal complaints and toward
that end the official forms are designed with numerous boxes that can merely be checked. While these boxes aid a claimant in identifying
56
the nature of her charge, a claimant is not necessarily limited to the boxes she selected if she provides the basis for her claim in her written
explanation. Thus, failure to check a box on a given issue, such as retaliation, does not necessarily preclude a plaintiff from filing suit on
that issue because, among other things, a plaintiff has no duty at the initiation of the administrative process to set forth a prima facie case.
While the Statute of Limitations for filing a D.C. Human Rights Act suit is one year from a discriminatory act or discovery thereof, under a
worksharing agreement between the EEOC and the D.C. Office of Human Rights, all EEOC case are automatically cross-filed between the
two agencies, a process for which a D.C. code provision provides that the timely filing of an EEOC complaint automatically tolls the running
of the limitations period under the DCHRA. A belated request to file an amended complaint after completion of discovery may be grated
within the discretion of the Court pursuant to Rule 15(a)(2), which provides that such amendments are to be “freely granted … when justice
so requires” and based upon case law which enfolds into that rubric instances in which “an amendment would do no more than clarify legal
theories or make technical corrections.” The key competing consideration is whether the non-movant would suffer any appreciable prejudice
from the amendment.
Hughes v Abell
D.D.C. No. 09-220. Decided July 20, 2009. (John D. Bates, J.). [Counsel not given in published opinion]. DWLR page no. 1637.
CONSUMER PROTECTION PROCEDURES ACT
UNCONSCIONABILITY DISTINGUISHED FROM COMMON LAW MISREPRESENTATION
A claim of unconscionability under the D.C. Consumer Protection and Procedures Act requires that a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face and that that the defendant is liable for the misconduct
alleged. The statute requires a showing that the accused knew either that (1) at the time of the action complained of there was no reasonable probability of the consumer’s being able to pay the obligation in full, or (2) the consumer would not receive substantial benefits from
the financial arrangement, or (3) advantage was being taken of the consumer due to inability to protect his or her own interests. Where the
ensuing obligation approaches or exceeds 50% of a consumer’s monthly income, there is a presumption of unconscionability for purposes
of bringing the case to trial. A distinction is to be made between the allegation of unconscionability and that of misrepresentation in terms
of the measure of proof required.
Pleitez v Carney
D.D.C. No. 08-0769. Decided Jan. 30, 2009. (Bates, James D., J.) Tirzah S. Lollar, Esq., Vinson & Elkins, for the Plaintiff. Stephen Carney,
Pro Se Defendant. DWLR page no. 665.
WAGE AND HOUR LAW
COMPUTATION OF BACK WAGES, OVERTIME, VACATION, AND BONUSES / LIQUIDATED DAMAGES /
ATTORNEY’S FEES
Unpaid back pay, unpaid overtime pay, unused paid vacation, and unpaid bonuses all constitute “wages” under the wage and hour laws and
are subject to accrued and aggregated statutory penalties, including interest, liquidated damages, and attorney’s fees.
COLLYER
Kelly v Novastar, et al
D.D.C. No. 08-1695. Decided July 27, 2009. (Hon. Rosemary M. Collyer, Trial Judge). [Counsel not given in published opinion]. DWLR
page no. 1725.
CIVIL PROCEDURE
TRANSFER TO ANOTHER DISTRICT COURT DECLINED AS NOT IN THE INTEREST OF JUSTICE
Although 28 U.S.C. § 1406 permits transfer of a case from one U.S. District Court to another for the convenience of the parties and witnesses,
it also permits denial of transfer, and even dismissal of the case, if the transfer is deemed not to be in the interest of justice.
Sykes v Napolitano
D.D.C. No. C.A. 0-42. Decided June 25, 2009. (Rosemary M. Collyer, J.). [Counsel not given in published opinion.]. DWLR page no.
1497.
EXPERT WITNESS TESTIMONY
REQUIREMENT OF FACTUAL BASIS AND PROHIBITION AGAINST LEGAL OPINIONS AND CONCLUSORY
OPINIONS INDISTINGUISHABLE FROM LAY OPINIONS
An expert witness is neither qualified nor necessary to render an opinion as the proper legal standard in a case. All Rule 702 expert testimony is subject to threshold requirements of a factual basis, the non-reliance on hearsay, and a degree of experience or expertise that
rises above the common sense of jurors.
Thomas v National Legal Professional Associates, et al
D.D.C. No. 07-892. Decided Jan. 28, 2009. (Rosemary M. Collyer, J.). [Counsel not given in published opinion.] DWLR page no. 297.
CIVIL PROCEDURE / SUBJECT MATTER JURISDICTION
A REASONABLE CLAIM FOR PUNITIVE DAMAGES IN LINE WITH THAT FOR COMPENSATORY DAMAGES IS TO BE COUNTED IN DETERMINING THE JURISDICTIONAL AMOUNT IN FEDERAL DIVERSITY
57
CASES
In determining the $75,000 minimum jurisdictional amount for federal civil diversity jurisdiction, a plaintiff’s own demand governs unless it
appears to a legal certainty that sum cannot be recovered. Punitive damages are counted in that determination unless that claim is disproportionate to the reasonable compensatory damages requested. Only when a claim for punitives is so grossly disproportionate to the
underlying claim that it offends due process is it to be disregarded for that purpose. In this regard, single-digit ratios (e.g., 6:1) between
punitive and compensatory damages are favored.
FACCIOLA
Becker v DC
D.D.C. No. 01-0811. Decided July 20, 2009. (John M. Facciola, M.J.). [Counsel not given in published opinion]. DWLR page no. 1665.
CIVIL PROCEDURE
RULE 15 MOTION TO AMEND MAY BE DENIED BASED ON TEMPORAL OR PROCEDURAL LATENESS
Although Rule 15 governing amendments to pleadings is known for its liberality, placing the burden on the non-movant to show why such a
motion should not be granted, where there is an undue lapse of time or the case has developed to the dispositive motions phase, additional
factors such as the necessity to re-open discovery or undue prejudice to the non-moving party, may justify denial of such a request.
Casanova v Marathon Corp., et al
D.D.C. No. C.A. 05-496. Decided Mar. 20, 2009. [Counsel not given in published opinion]. DWLR page no. 809.
CIVIL PROCEDURE
CROSS-CLAIMS / INDEMNIFICATION AND CONTRIBUTION / UNTIMELY ANSWER
A federal court is obligated to re-examine its subject matter jurisdiction at any time it is reasonably questioned. Pending cross-claims and
third party claims stemming from an original complaint are governed by the staid rules of justiciability, including the requirement of an
actual case or controversy with immediate, not future or conjectural injury, based on concrete issues and ripeness for adjudication. Issues
of indemnification and contribution are, by their very nature contingent upon future events, therefore unripe for adjudication, and must wait
the fixing of the indemnitee’s liablity. Thus an indemnitor cannot be sued until the indemnitee is first held liable. Summary judgment may be
entered where a party has failed to timely answer or respond and the Court has denied a motion for reconsideration, because, as a matter
of law, no legal defense is thereafter possible.
US v Orloksi
D.D.C. 07-0258 (May 21, 2008). (John M. Facciola, M.J.). [Counsel not given in published opinion.]. DWLR page no. 1081.
[Editor’s Note: Because of the lapse of time since its original release by the Court, this case has already since been published in another
source as United States v. Orloksi, 554 F.Supp.2d 4 (D.D.C. 2008). It is presented here within the context of how the U.S. District Court
has dealt with this issue over the last year.].
INVOLUNTARY ADMINISTRATION OF DRUGS IN ORDER TO RENDER A CRIMINAL DEFENDANT COMPETENT TO STAND TRIAL APPROVED
The Government has the burden of proof in seeking to impose involuntary medication on a criminal defendant in order to render him competent for trial. The defendant and the government share an interest in restoring his competency as soon as possible and that interest can
only be vindicated by his involuntary medication. Factors to be considered are (1) the medication advances “an important governmental
interest”; (2) is “substantially likely” to further that interest; (3) alternative, less intrusive treatments are unlikely to achieve the same result;
and (4) administration of the medication is medically appropriate.
Winstead v DC
D.D.C. No. 04-887. Decided June 3, 2009. (John M. Facciola, M.J.). [Counsel not given in published opinion]. DWLR page no. 1245.
ADMINISTRATIVE PROCEDURE
MOTION FOR RECONSIDERATION GRANTED IN SECTION 1983 CASE / DUE PROCESS HELD TO REQUIRE REASONABLE PROMPTNESS
Several Plaintiffs filed multiple disability compensation claims pursuant to the D.C. Comprehensive Merit Personnel System Act (CMPA) and
Section 1983 of the Civil Rights Act. The Court originally granted the Defendants’ Motion to Dismiss the Section 1983 claim that the CMPA
was unconstitutional on its face, together with partial summary judgment as to seven Plaintiffs. The Court’s initial ruling was predicated on its
conclusion that these Plaintiffs could have sought either review of the rulings against them, pursuant to the appellate terms of the District’s
Administrative Procedure Act, or mandamus directly from the D.C. Court of Appeals. Since they had failed to avail themselves of these
alternative remedies, the Court had reasoned, they would not be heard to argue that any delay involved in the administrative process would
deprive them of their vested property without due process of law. All Plaintiffs then fled a Motion for Reconsideration which contained case
law that persuaded the Court that an unreasonable delay in administrative proceedings at the state level “may constitute the deprivation of
property without due process of law, cognizable under … [Section] 1983.” This is because unreasonable delay militates against the timely
and reasonable vesting of property rights and “sufficiently egregious delay in process entitlement may constitute a remediable constitutional
violation.” In such a situation, the Court was persuaded, the “interest of a claimant in prompt resolution of eligibility [for benefits] permits him
58
to bypass the full exhaustion [of remedies] route.” Put another way, “mere availability of redress” at the state level does not satisfy the “right
to be free of unreasonable delay.” Thus the federal right to due process may not be “diminished by the fact that the state may have specified
its own procedures” which may be challenged in federal court. A plaintiff, therefore, is not necessarily required to “rely on the mere existence
of a system of [state] judicial enforcement for its allegedly intentional efforts to delay payment of benefits to which plaintiff was due.” What
those benefits may be must be determined in an appropriate hearing before the federal court, during which it “should engage in a factual
inquiry to determine whether the burdens and delays imposed by the … [local procedures] were reasonable.” The Court thereupon ordered
that the parties submit within 120 days additional facts and arguments and that they focus on two specific issues: (1) whether entitlement to
relief under Section 1983 is a function of each plaintiff’s degree of success in the administrative process, and (2) what proof of actual injury
is required to preclude an award of nominal damages for the delay encountered.
FRIEDMAN
Charlton v Donley
D.D.C. No. 08-0221. Decided May 1, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 1062.
ADMINISTRATIVE LAW
JUDICIAL REVIEW OF “DISENROLLMENT” DECISION BY MILITARY ACADEMY / LITTLE TUCKER ACT
The Little Tucker Act waives federal sovereign immunity for non-tort monetary claims against a federal agency not exceeding $10,000, vesting
concurrent jurisdiction in the Court of Federal Claims and U.S. District Court. Where a plaintiff seeks both equitable relief, such as correction of military or other records, which would itself result in a benefit in excess of that statutory amount, together with additional monetary
damages that do not exceed that amount, the analysis turns on the nature, extent, and gravity of the equitable relief sought, which must be
considered as to its substance, not merely its form. A prime determination is whether the larger benefit stems from the Court’s own ruling
or from the consequences of the Court’s ruling elsewhere, such as resulting in increased retirement or disability benefit under an agency’s
own rules. Thus, even where the actual thinly-veiled goal of such a law suit is to attain valuable non-monetary benefit, the District Court
still has jurisdiction over the basic issue of correction of the agency record, as long as any accompanying actual monetary claim does not
exceed $10,000.
Davis v DC Dep’t of Corrections
D.D.C. No. 08-2037. Decided June 11, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 1305.
PRISON LITIGATION REFORM ACT
EXHAUSTION OF REMEDIES REQUIREMENT
The Federal Prison Litigation Reform Act requires that a prisoner may not file suit under any federal law until all available administrative
remedies are exhausted. This requirement is mandatory and applies to all prisoners seeking redress for prison circumstances or occurrences, so that prison officials may have the opportunity to address complaints internally in order to attempt to correct the problem, thus
obviating the need for litigation.
Doe v DC, et al
D.D.C. No. C.A. 08-0656. Decided April 24, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no 909.
JUVENILE LAW
SHELTER CARE v. SECURE DETENTION / THE JUVENILE SPEEDY TRIAL EQUITY CONGRESSIONAL
REVIEW EMERGENCY ACT OF 2009
Recent legislation erases the distinction between juveniles placed in shelter care and those placed in preventive detention for habeas corpus
and speedy trial purposes.
Enten v DC
D.D.C. No. CA 09-1825. Decided Dec. 22, 2009.(Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 2713.
[Editor’s Note: This novel case also assumed some notoriety in the local press prior to the Court’s ruling. See Gerald Martineau, “Frank
Enten Unloads One of Two Display Boards,” (photo) Washington Post, Dec. 10, 2009; Gerald Martineau, “Frank Enten Says the City Has
No Right to Regulate His Business,” (photo) Washington Post, Dec. 10, 2009; Gerald Martineau, “Frank Enten Explains the History of
a Particular Campaign Button,” Washington Post, Dec. 10, 2009; Gerald Martineau, “Frank Enten of Bethesda Regularly Travels to the
District to Sell Campaign Buttons” (photo) Washington Post, Dec. 23, 2009; Del Quentin Wilbur, “Free Speech Runs Up Against Free Retail
Space,” Washington Post, Dec. 23, 2009, p. B5, and Del Quentin Wilbur, “Judge Rules That Button Seller in Washington Must Have Permit,”
Washington Post, Dec. 23, 2009, p. B5.].
REMEDIES
SELLING OF POLITICAL CAMPAIGN BUTTONS ON THE PUBLIC STREET DOES NOT QUALIFY AS A
“DEMONSTRATION” UNDER THE FIRST AMENDMENT AND THE PURVEYOR MUST THEREFORE OBTAIN
A BUSINESS LICENSE TO DO SO
Selling politically-related items on the public sidewalk does not constitute a sufficient exercise of First Amendment rights so as to obviate
the requirement that all vendors in the District must first obtain a sales license.
59
Halcomb v Woods
D.D.C. No. 02-1336. Decided Apr. 28, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 985.
TORT LAW
STANDARDS FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS UNMET
The tort of Intentional Infliction of Emotional Distress must be considered within the context of “applicable contemporary community standards of offensiveness and decency” and must consist of “extreme and outrageous conduct” which “goes beyond all possible bounds of
decency, and … regarded as atrocious, and utterly intolerable in a civilized community” and which “either intentionally or recklessly caused
the plaintiff severe emotional distress.” It does not comprehend “mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.” The emotional distress claimed must rise to the level of being “severe,” which means that it must be “of so acute a nature that
harmful physical consequences might not be unlikely to result.” Mere “mental anguish” and “stress” are insufficient. Expert witness testimony
is required to demonstrate a causal link between a defendant’s act and a plaintiff’s harm.
Hose v US
D.D.C. No. 07-1805. Decided Mar. 31, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 745.
CIVIL PROCEDURE / RULE 12(b)(1)
SOVEREIGN IMMUNITY / FEDERAL TORT CLAIMS ACT / WORKERS COMPENSATION
All claims for on-the-job injuries brought under the Federal Tort Claims Act are to be considered under the Workers Compensation Act of
the situs of the alleged injury. No distinction is to be made between an employee and a supervisor for these purposes.
Hunter Innovations Company v The Travellers Indemnity Co. of Connecticut
D.D.C. No. 08-0671. Decided Mar. 31, 2009. (Paul L. Friedman, J.) [Counsel not given in published opinion]. DWLR page no. 753.
CIVIL PROCEDURE / UNINCORPORATED ASSOCIATION
REGISTRATION OF TRADE NAME AS BASIS FOR STANDING TO SUE
Federal courts are forums of limited jurisdiction in which, if called upon to do so via a motion to dismiss, a plaintiff has the burden of showing
standing to sue. A lack of standing to sue may also be considered under the rubric of lack of subject matter jurisdiction. Certain business
entities utilizing trade names that indicate more than one person may be involved are subject to business regulations requiring registration
and securing of a license to do business, the penalties for failure to comply with same may include withholding the right to bring suit in any
local court. If this is found to be the case, the suit may be dismissed without prejudice so that the business entity may come into compliance
with the registration requirement and re-bring the suit.
Lindell v The Landis Corp. 401(k) Plan, et al
D.D.C. C.A. No 08-1462. Decided July 28, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 1785.
CIVIL PROCEDURE / LOCAL RULES
SETTLEMENT AGREEMENTS ARE INTERPRETED UNDER THE LAW OF CONTRACTS / A COURT ACTION
OR JUDGMENT IS A PRE-REQUISITE TO A CLAIM OF RES JUDICATA
A lawsuit resolved by means of a settlement agreement and voluntarily dismissed without court action is governed by the law of contracts.
In order for the doctrine of res judicata to apply, the previous case must have been resolved by a court action or judgment of some kind.
Although a plaintiff has the unfettered right under Civil Rule 15(a) to file an amended complaint prior to the filing of a responsive pleading,
it must do so under Local Rule 7(i) by first lodging with the Court an original copy of the proposed new complaint.
Pigford and Brewington v Schafer
D.D.C. Nos. C.A. 97-1978 & 98-1693, respectively. Decided Dec. 19, 2008. (Paul L. Friedman, J.) [Counsel not given in published opinion]. DWLR page no. 117.
[Editor’s Note: This case appears four times during 2008, on the Court’s Web Site sub nom. Brewington v. Veneman, under the Brewington
Case No. of 98-1693, on Jan. 24th; Feb. 21st; Mar. 31st and Dec. 19th, and some of the filings are under the caption Brewington v. Glickman
and Brewington v. Johanns, each of the named lead Defendants being the Secretary of Agriculture serving at that time.]
[Second Editor’s Note: A Word to the Wise: No Letters to the District Court During Ongoing Litigation. In the accompanying PigfordBrewington case, the Trial Judge admonished both Counsel concerning their sending letters directly to Chambers with regard to their
respective claims and defenses. Although this is an accepted practice in may local state-level courts, the District Court admonished the
parties not to do so, citing Local Rule 5.1(b), which states that, “Except when requested by a judge, correspondence shall not be directed
by the parties or their attorneys to a judge, nor shall papers be left with or mailed to a judge for filing.” The Court pointed out that “[t]he
proper vehicle for seeking relief from the Court, or advising the Court of pertinent information, is a formal filing.” Mem. Op., p. 4.]
ATTORNEY’S FEES / ENHANCEMENT CLAIM
COMPENSATION FOR ENFORCEMENT OF CONSENT DECREE
A request for attorney’s fees with a substantial enhancement for services performed in enforcing a consent decree in a class action discrimination case against one of the major Executive Branch Departments was not considered by the Court until the parties submitted a joint report
on the particularized areas of fee dispute, whether fees may be awarded for generalized implementation of the consent decree, whether
there was any ongoing attempt at settlement, and whether other avenues of mediation or arbitration might be acceptable.
60
Tabb v DC
D.D.C. No. C.A. 06-0789. Decided Mar. 19, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 1673.
EMPLOYMENT LAW
GOVERNMENT’S RIGHT TO REGULATE EMPLOYEE’S SPEECH IN LINE AND SCOPE OF DUTY / MUNICIPAL IMMUNITY FROM SECTION 1985 CLAIM / WHISTLEBLOWER ACT / FAMILY MEDICAL LEAVE ACT
Whether a governmental employee’s First Amendment right to freedom of speech was violated by her employer in disciplining or discharging him or her depends on whether the actions for the adverse action emanated from the employee’s speaking as a citizen on a matter
of public concern or whether the speech fell within the line and scope of her employment so that the government agency in question had
a sufficient interest in regulating that speech in order to promote the efficient performance of public services. Ordinarily, a municipality is
immune for prosecution under a Section 1985 civil rights conspiracy. In order to prevail against a governmental entity on a Section 1985
claim as to the Government’s argument of municipal immunity on the Section 1985 claim, it must show that its misconduct was the result
of a pervasive governmental policy or custom. A plaintiff who deliberately failed to attend the agency hearing afforded her will not be heard
to raise a procedural due process complaint thereon. A prima facie case under the Whistleblower Act requires a showing of retaliation for
reporting, on reasonable belief, of either gross mismanagement, misuse or waste, or abuse of authority, or violation of state or federal law,
or a substantial and specific danger to public health and safety.
US v Hinckley
D.D.C. Crim. No. 81-0306. Decided June 16, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no.
1357.
ATTEMPTED PRESIDENTIAL ASSASSIN
MODIFICATION OF RELEASE CONDITIONS AFTER N.G.I. JUDGMENT
Based on the 27-year record of attempted presidential assassin John W. Hinckley, Jr., currently under supervision resulting from a Not
Guilty by Reason of Insanity judgment, in never having had a public incident, never having attempted escape, providing full cooperation
with his psychiatric team, strictly complying in taking all his prescribed medications, the remission of his major mental health problems, and
the absence of any violent actions, among other positive indicia, the Court concluded that he would not be a danger to himself or others
and further liberalized his terms of release, conditioning them on his securing such things, inter alia, as a volunteerism position, a driver’s
license, and carrying a GPS-based cell phone.
US v Irving
D.D.C. No. 07-1017. Decided Jan. 13 & 14, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinions.] DWLR page no.
261.
[Editor’s Note: Consultation of the docket sheets in this case shows that on Jan. 14, 2009, the Court sentenced the Defendant on Count
5 to 14 months’ incarceration to run concurrent with Count 9, followed by 24 months of supervised release to run concurrent therewith. On
Count 9, the Defendant was sentenced one month’s incarceration to run concurrent with Count 5, followed by 24 months of supervised
release to run concurrent with Count 5. Costs of prosecution in the amount of $11,205.51, a special assessment of $200, and restitution
of $54,749 were also imposed. Defendant remained on personal recognizance pending voluntary surrender to begin serving his term. A
Notice of Appeal was filed on Jan. 16, 2009.]
BASIS FOR UPWARD ADJUSTMENT IN BASE LEVEL OF U.S. SENTENCING GUIDELINES
In seeking an upward departure from the base level of offense under the U.S. Sentencing Guidelines predicated on willful obstruction of
justice by perjuring himself while testifying in his own defense at trial, the Government has the burden of proof by a preponderance of the
evidence. A court must be especially mindful, however, that such a proceeding does not impinge on a defendant’s right to testify in his own
defense. The answers of a defendant who is not a lawyer to questions based on whether he believed he was violating the law in certain of his
actions because they call for a legal conclusion, particularly where these questions were ambiguous. Where the Government’s allegations
are thus reduced to a single instance of knowing misrepresentation, it is unlikely that it would justify an increase in base level exposure.
Vreven v American Ass’n of Retired Persons
D.D.C. No. 08-1099. Decided Mar. 25, 2009. (Paul L. Friedman, J.). [Counsel not given in published opinion]. DWLR page no. 705.
CIVIL PROCEDURE / RULE 12(b)(6) DISMISSAL / RULE 15(a) AMENDMENT
WRONGFUL DISCHARGE / DEFAMATION
A plaintiff is entitled to a liberal reading in the face of a Rule 12(b)(6) Motion to Dismiss, with all inferences resolved in its favor. At the same
time, however, despite the similarly liberal reading of Rule 8(a) on pleading, a plaintiff must set forth more than labels, conclusions, or formulaic recitations in order to bring the level of probability of success to something beyond mere possibility. A “showing” is something more
than a “blanket assertion” of entitlement to relief. Likewise a Rule 15(a) motion to amend is to be liberally granted as long as it is timely
and not unduly prejudicial to the opposing party. Some causes of action, like fraud and defamation, require a higher degree of specificity.
Defamation requires that the statement has been published to a specified third party so that a defendant can prepare a defense. A wrongful termination action may be brought in the face of a claim that the reason for discharge was that the employee had refused to violate the
law at the behest of the employer.
61
HOGAN
US v Glover, et al
D.D.C. No. Crim. 07-153. Decided Oct. 3, 2008. (Thomas F. Hogan, J.) [Counsel not given in published opinion.] DWLR page no. 221.
[Editor’s Note: The DWLR deems this to be an important opinion containing an excellent legal analysis of the issues involved for the D.C.
Legal Community. A copy of this opinion, however, is not available in a format which can be transliterated for publication purposes in our
pages. The scanned document in its entirety, however, can be located and printed from the U.S. District Court’s website at https://ecf.dcd.
uscourts.gov/cgi-bin/show_public_doc?2007cr0153-345]
DISMISSAL OF INDICTMENT / BILL OF PARTICULARS / SUPPRESSION OF PHYSICAL EVIDENCE / DISCLOSURE OF WITNESS IDENTITIES AND STATEMENTS / SEVERANCE OF DEFENDANTS
An indictment based on erroneous grand jury testimony may be cured by conforming that testimony at trial. A bill of particulars is not required in the face of extensive discovery already provided. A search warrant is not necessarily invalided because it was in the process
of being formulated at the time of the search. A co-occupant’s consent to search the premises may be deemed sufficient in the absence
of objection by a targeted defendant who was present. Such a warrant may also cover items seized from jointly-occupied rooms on the
premises. Circumstances that include police dressed in plain clothes and not displaying weapons do not usually provide a predicate for
police intimidation in securing a consent search. Regardless of whether a co-defendant or co-conspirator is expected to testify, in this
Circuit a Trial Court lacks the authority to order the pre-trial disclosure of their statements. The Informant’s Privilege in securing the safety
of testifying witnesses must be balanced against the right of an accused to present a complete defense, although a movant bears a heavy
burden in seeking such disclosure. For proper joinder of defendants, the Government is only obligated to allege, not necessarily to prove,
that co-defendants participated in a common plan and scheme. Typically considerations of judicial economy and reliance on traditional
limiting instructions are sufficient to avoid “spillover” effects on co-defendants who might have lesser involvement in the offenses charged,
although the issue may be renewed appropriately during trial.
HUVELLE
American Federation of Teachers, AFL-CIO, et al v Bullock
D.D.C. No. C.A. 03-79. Decided Mar. 31, 2009. (Ellen G. Huvelle, J.) [Counsel not given in published opinion]. DWLR page no. 825.
BANKING LAW / CIVIL PROCEDURE
STATUTE OF REPOSE / STATUE OF LIMITATIONS / ADVERSE DOMINATION DOCTRINE /
INAPPLICABILITY OF VARIOUS EQUITABLE REMEDIES
A Motion to Reconsider is subject to a standard of review on an “as justice requires” basis, comprehending situations in which a court has
either patently misunderstood a party’s position, made a decision beyond the adversarial issues presented, erred in failing to consider
controlling decisions, or where a controlling or significant change in the law has since occurred. A Statute of Repose differs from a Statute
of Limitations in that the former imposes an affirmative pre-requisite of notice of the discovered wrongdoing, such as a customer’s notice
of forged or improper checks to a bank, which is a substantive statutory provision not subject to waiver, and designates a period of time
within which a claim may be subsequently brought, thereby cutting off both the right and the remedy if there is no compliance. A Statute of
Limitations is a procedural mechanism which cuts off only the remedy of any future action and may be waived. Consequently the Statute
of Repose is not subject to such exceptions as the Adverse Domination Doctrine, whereby the wrongdoer has prevented timely discovery
of the fraud, equitable tolling based on affirmative misconduct, equitable estoppel, excusable ignorance, or failure of the defendant to act in
good faith. It is also not an affirmative defense and may be raised in the most general manner in responsive pleadings.
Hill v Geren, Sec. of the Army
D.D.C. No. 07-2085. Decided Feb. 11, 2009. (Ellen S. Huvelle, J.) [Counsel not given in published opinion.] DWLR page no. 453.
ADMINISTRATIVE PROCEDURE ACT
REQUIREMENT OF ADEQUATE EXPLANATION ACCOMPANYING MILITARY BOARD’S RULING
A court’s review of rulings made under the Administrative Procedure Act (APA) takes place on the premise that an agency decision must
be affirmed unless it is arbitrary and capricious, contrary to law, or unsupported by substantial evidence. The APA also governs rulings
made by various military boards for which there is an even more liberal standard of review, entitling them to “unusually deferential” application of the arbitrary or capricious standard. At the same time, however, a court must be able to conclude that the military board examined
the relevant data and articulated a satisfactory explanation for this action, including a rational connect between the facts found and the
choice made. A reviewing court will not typically accept an agency decision that is unaccompanied by an explanation adequate to permit
it to understand the agency’s ruling. In such a situation, remand to the agency for reconsideration consistent with the court’s ruling is the
appropriate step under the APA.
Owens v DC
D.D.C. No. 08-2029. Decided July 6, 2009. (Ellen S. Huvelle, J.). [Counsel not given in published opinion.]. DWLR page no. 1465.
CIVIL PROCEDURE / ADMINISTRATIVE APPEALS
62
SCOPE OF QUI TAM ACTIONS UNDER THE FALSE CLAIMS ACT / NO CIVIL REMEDY UNDER CRIMINAL
CONSPIRACY STATUTE / RES JUDICATA / EQUITABLE TOLLING DURING ADMINISTRATIVE APPEALS
Although the federal False Claims Act claim permits private citizens to bring qui tam suits in the Government’s name, it limits those suits to
those filed to interdict a false claim against the Government. The federal criminal conspiracy statute does not give rise to a private cause
of action. Where a subsequent complaint essentially restates allegations from a previous suit between the same parties and over the same
issues which was tried to a verdict against the plaintiff, the principle of res judicata will apply to all such claims, save for any based on new
facts and issues arising since then. Although the statute of limitations for defamation is one year from the time the action accrues, where the
time has passed while a plaintiff, who is required to exhaust administrative remedies, is still awaiting a ruling, the statute will be equitably
tolled.
Pearson v DC, et al
D.D.C. No. 08-758. Decided July 23, 2009. (Ellen S. Huvelle, J.). [Counsel not given in published opinion]. DWLR page no. 1609.
[Editor’s Note: The Plaintiff’s original misbegotten lawsuit over the $65 million pair of pants, which generated so much national and
international scandalous attention and served, in part, as the basis for partial findings in the instant case, was reported in the DWLR as
Pearson v. Chung, 137 D.W.L.R. 69 (Jan 13, 2009).].
ADMINISTRATIVE LAW / FACTORS IN RE-APPOINTMENT OF A D.C. ALJ
PROCEURAL AND SUBSTANTIVE DUE PROCESS OF LAW / REGULATING SPEECH OF GOVERNMENT
EMPLOYEES / SUBJECTIVE DETERMINATIONS FOR RE-APPOINTMENT TO OFFICE
Whether the Government may infringe upon an employee’s freedom of speech depends on whether the speech involves the official duties
of the employee. For purposes of further policy and maintaining a uniformity of procedures, a government agency has a legitimate interest
in regulating the public utterances of his employees. Agencies so charged with the responsibility and screening of functionaries such as
ALJ’s have an endemic discretionary authority in performing such tasks and are entitled to qualified immunity precluding all suits against
them in so doing, absent wrongdoing and may rely in part of wholly subjective determinations. A person may proceed as a “private attorney general” only in public matters where there is an issue such as gross mismanagement, waste of public resources, abuse of authority,
violation of law, breach of contract, or substantial danger to public health or safety; cases prosecuted wholly for the personal benefit of a
plaintiff may not proceed under this rubric.
KAY
US v Aleksov
D.D.C. No. 08-057. Decided May 7, 2009. (Alan Kay, M.J.) [Counsel not given in published opinion.]. DWLR page no. 1073.
[Editor’s note: This edition, and the next, of the DWLR contains three opinions involving “Involuntary Medication” cases before the D.C.C.
over the course of the past twelve months: US v Alexov, US v Austin and US v Orloksi.]
INVOLUNTARY ADMINISTRATION OF DRUGS IN ORDER TO RENDER
A CRIMINAL DEFENDANT COMPETENT TO STAND TRIAL APPROVED
Where the charge is serious enough and the defendant is presently incompetent to stand trial, the Government may impose involuntary
medication on a criminal defendant to make him competent to stand trial if said medication has a substantial chance of success, alternative
procedures are inadequate, and the potential side effects are minimal.
KENNEDY
Gonzalez-Vera v Townley
D.C.C. No. 07-00995. Decided Feb. 8, 2009. (Henry H. Kennedy, J.) [Counsel not given in published opinion]. DWLR page no. 493.
FEDERAL WITNESS PROTECTION ACT
ENFORCING CIVIL JUDGMENT AGAINST PROTECTED WITNESS VIA THE ATTORNEY GENERAL
The purpose of the Federal Witness Protection Act is to preserve the identity and location of those covered by it in order to secure their
safety. When a party has a civil suit to pursue against a person covered under the Act, to effectuate service of process it must go through
the Office of the Attorney General which must make reasonable efforts to do so. If the plaintiff prevails a similar procedure ensues to enforce
the judgment. If the Attorney General is able to make suitable arrangements for the judgment debtor to satisfy the judgment, those terms
are then conveyed to the plaintiff. If the protected party refuses to make any such accommodation, the Attorney General may be required
to disclose his current identity and location to a guardian appointed by the Court. The issue of waiver of sovereign immunity is not invoked
in these matters because neither the Attorney General nor the United States is a defendant in the suit.
Kormenedi/Gardner Partners v Surplus Acquisition Venture, LLC
D.D.C. No. C.A. 08-00423. Decided Mar. 31, 2009. (Henry H. Kennedy, Jr., J.)[Counsel not given in published opinion.] DWLR page no.
817.
FEDERAL REMOVAL / FEDERAL JURISDICTION
BREACH OF CONTRACT / FEDERAL QUESTION / WELL-PLEADED COMPLAINT RULE / BOYLE EXCEP-
63
TION / FEDERAL OFFICER REMOVAL ACT
In a breach of contract case, simply because a federal contract is involved or implicates a federal agency, does not require that the case
be heard in federal court, especially when it is there on the basis of the defendant’s removal from a state-level court. Federal jurisdiction
is invoked only when a federal question is presented by the plaintiff’s properly raising it under the Well-Pleaded Complaint Rule. The same
result obtains under the “Boyle Exception,” which requires a clear statutory prescription for federal displacement of state procedures to that
effect or if there is a direct conflict between two bodies of law, before a federal forum is necessitated. The Federal Officers Removal Act
affords no similar relief in a breach of contract case because it applies only to torts.
KOLLAR-KOTELLY
Arrington v US Park Police
D.D.C. No. 01-1391. Decided Dec. 29, 2008. (Hon. Colleen Kollar-Kotelly, J.). [Counsel not given in published opinion]. DWLR page no.
629.
[Editor’s Note: It may be worth noting that the Court’s references to the “prone position” in this case denote a person lying fully-extended
and face down on the ground, but if one turns over and lies on one’s back in that manner, it becomes the “supine position.”]
“REASONABLE FORCE” DENOTED IN VARIOUS ARREST SCENARIOS IN RESPONSE TO THE CONDUCT
OF A SUSPECT
Police Officers have a “qualified privilege” to use “reasonable force” to effect an arrest where there is a companion “reasonable belief” that
there is an immediate danger of bodily harm, a threat to the safety of others, or active resistance to arrest. What constitutes “reasonable
force” depends on the situation confronting the police as it may develop, ranging from no force to use of devices to deadly force.
Canales and Rivera v A.H.R.E., et al
D.D.C. No. CA-07-372. Decided Oct. 22, 2008. (Kollar-Kotelly, J.). [Counsel not given in published opinion] DWLR page no. 13.
[Editor’s Note: Rule 60(b) was also the subject of a recent D.C. Court of Appeals Decision published as Lorca v. Metropolitan Police
Dept., 136 D.W.L.R. 2117 (June 6, 2008) and specific performance was also discussed in that Court’s recent decision in Clark v. Route,
136 D.W.L.R. 1549 (July 17, 2008).].
CIVIL PROCEDURE
MOTION TO VACATE DEFAULT JUDGMENT / RULE 55 / RULE 60
Consistent and prolonged failure to respond to a law suit following service process and a Rule 55 default may result in a finding of willful
delay which, in turn, may be inimical to any motion to vacate a default judgment under Rule 60. This is the kind of difficulty that the Court’s
publicly-available electronic filing system is designed to avoid. Moreover, a corporate party may only appear in U.S. District Court via an
attorney at law so that ignorance of such proceedings is no excuse. These lapses are not the kind of “mistake” comprehended by Rule
60(b)(1). Nor can fraud under subsection (b)(3) be predicated on speculation alone. Finally the plenary exception in Rule 60(b)(6) requires
a showing of willfulness, lack of unfair prejudice, and a meritorious defense.
Cooper, et al v Farmers New Century Ins. Co.
D.D.C. No. C.A. 08-844. Decided Dec. 29, 2008)(Colleen Kollar-Kotelly, J.). John F. Lilliard, Esq. Pro Se and on behalf of Co-Plaintiffs
Janette Cooper, Jeramia Cooper, and Jasmyne Cooper. Claudia Drennen McCarron, Esq. and Robert W. Hesselbacher, Esq., Counsel of
Record for Defendant. DWLR page no. 53.
CIVIL PROCEDURE / REMOVAL / IMPROPER VENUE / TRANSFER / DIVERSITY JURISDICTION /
CORPORATE CITIZENSHIP / CONSUMER PROTECTION PROCEDURES ACT /
APPLICABILITY TO THE “COMMUNITY”
For purposes of a Rule 12(b)(3) Motion to Dismiss for Improper Venue a Plaintiff’s well-pled complaint will be presumed true and a party
challenging venue must provide affirmative evidence, even from outside the record, to overcome that presumption. Venue for a corporation
lies in any court wherein it is subject to in personam jurisdiction at the time the suit is filed. In addition, in a direct action against an insurance
company, where the insured has not been joined as a defendant, venue in terms of the company will lie in any court jurisdiction wherein the
insured is a citizen. Such a finding may, however, destroy diversity jurisdiction. The D.C. Consumer Protection Procedures Act is designed
to remedy allegedly improper trade practices which occur throughout the D.C. community itself but contains no reference to any allegedly
improper trade practice taking place outside the District.
Palmer v GMAC Commercial Mortgage
D.D.C. No. 08-1853. Decided June 25, 2009. (Colleen Kollar-Kotelly, J.). [Counsel not given in published opinion]. DWLR page no. 1457.
REAL ESTATE AND FINANCE LAW
U.S. HOME OWNERSHIP AND EQUITY PROTECTION ACT / D.C. HOME LOAN PROTECTION ACT / U.S.
TRUTH IN LENDING ACT / U.S. REAL ESTATE SETTLEMENT PROCEDURES ACT
A plaintiff’s assertion under the Home Ownership and Equity Protection Act that the plain arithmetical figures of a home mortgage loan
and related factors greatly understate the true cost of the loan is a quintessentially conclusory allegation that the Court need not accept on
a motion to dismiss. Just as unacceptable is a plaintiff’s similar argument under the D.C. Home Loan Protection Act that a mortgage loan
64
includes only the portion of the loan that a borrower believes is valid. Moreover, a plaintiff cannot survive a motion to dismiss based only
on an aspiration that facts supporting a cause of action would surface in discovery. The Real Estate Settlement Procedures Act prohibits
kickbacks and unearned fees in connection with real estate loan transactions, including fees received for business referrals stemming from
a loan transaction and the financing agent’s splitting charges with another for services not directly related to the loan. A plaintiff’s claim
under that statute that she had been charged excessive fees for obtaining her loan in light of her good credit history is a sufficient basis to
sustain a claim thereunder.
Payne v DC
D.D.C. No. 08-163. Decided Dec. 30, 2008. (Colleen Kollar-Kotelly, J.) [Counsel not given in published opinion]. DWLR page no. 573.
COMPREHENSIVE MERIT PROTECTION ACT (CMPA)
EXHAUSTION OF REMEDIES REQUIREMENT
The D.C. Comprehensive Merit Protection Act is the exclusive remedy for virtually every conceivable personnel issue among the District,
its employees, and their unions. It avails them of alternative procedures of an initial hearing, an appeal to the Office of Employee Appeals
and then to court or submitting the grievance to arbitration under a collective bargaining agreement. Either is deemed an administrative
procedure which is a pre-requisite to filing suit. Neither the complexity of claims nor the unavailability of punitive damages at that level will
excuse the requirement that all administrative remedies must first be exhausted.
Stewart v St. Elizabeth’s Hospital
D.D.C. No. C.A.-04-1444. Decided January 7, 2009. (Colleen Kollar-Kotelly, J.). [Counsel not given in published opinion.] DWLR page
no. 185.
FEDERAL REHABILITATION ACT
ESTABLISHING A PRIMA FACIE CASE
An action under the Rehabilitation Act of 1973 must show not only that a request was made for a reasonable accommodation of the Plaintiff’s
disability but also evidence as to what the employer did or failed to do to provide such an accommodation.
LAMBERTH
Pederson v Mills
D.D.C. No. 06-1418. Decided July 20, 2009. (Royce C. Lamberth, J.). [Counsel not given in published opinion]. DWLR page no. 1653.
EEO LAW / NATURE OF PRIMA FACIE CASE
EXHAUSTION OF ADMINISTRATIVE REMEDIES / RELEASE FROM McDONNELL DOUGLAS PROCEDURE
At the summary judgment stage, the McDonnell Douglas burden-shifting framework should limit itself to determining whether the employee
has produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual
reason for the employment action complained of and that the employer intentionally discriminated against the employee on an impermissible basis. For that purpose, a court may use evidence from the prima facie case, albeit without deciding whether there is one, as well as
evidence of pretext to answer it. In cases of race and sex discrimination in employment, an employer’s remarks about the statistical benefit
that selecting a person of a particular race or gender would bring to the employer, particularly when made during the decisional process,
are direct evidence as to pretext and discriminatory intent and act to relieve the plaintiff of adherence to the McDonnell Douglas framework.
Similarly, “stray remarks” during the selection process as to the aging of the employer’s staff may provide evidence of age discrimination if
there is a nexus between the stray remark and the adverse employment decision. Failure to apply separately for a promotion to another GS
level that springs from a lower level position for which an employee did apply creates an inherent failure to exhaust administrative remedies
for the higher level position.
LEON
US v Austin
D.D.C. No. 06-368. Decided Apr. 6, 2009. (Richard J. Leon, J.). [Counsel not given in published opinion.] DWLR page no. 1081.
[Editor’s Note: The DWLR downloads all reviewed cases from the courts’ web sites. Each of the Judges of the U.S. District Court here
posts his or her Memorandum Opinions individually to that Court’s website. Most of these posts are in “downloadable” MS-Word format
which can then be reformatted into any edition of the paper. Some cases, however, are “scanned,” simply copied like a Xerox, and do not
lend themselves to reformatting for inclusion in any given DWLR edition. When contacted, some Judges will provide the paper with an
original MS-Word version via email, but others will not. The paper does not have the ability to re-type these “scans.” This is such a case.
Consequently, only an Abstract is being printed. The original scan is available in downloadable .pdf form at “https://ecf.dcd.uscourts.gov/
cgi-bin/Opinions.pl?2009”.]
INVOLUNTARY ADMINISTRATION OF DRUGS IN ORDER TO RENDER A CRIMINAL DEFENDANT
COMPETENT TO STAND TRIAL NOT APPROVED
Where the Government is seeking to impose involuntary medication in order render a criminal defendant competent to stand trial, it must
65
demonstrate all four Sell factors by clear and convincing evidence.
ROBERTS
DC v Straus
D.D.C. No. 08-2075. Decided Apr. 14, 2009. (Richard W. Roberts, J.) [Counsel not given in published opinion; the attorney for the child in
the underlying case was John A. Straus, Esq. of James E. Brown & Associates.] DWLR page no. 857.
INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)
PREVAILING PARTY / ATTORNEY’S FEES / “CATALYST THEORY” REJECTED
The status of “prevailing party” for attorney’s fees purposes requires an actual successful ruling on the merits and may not be obtained
after an opposition to a claim has resulted in a settlement or voluntary acquiescence to the claim, thus mooting it. Mootness as the result
of an action is not to be equated with being a prevailing party. In IDEA cases the determination of the prevailing party is to be made by the
District Court, not the administrative hearing officer.
Demery v Montgomery Co., MD
D.D.C. No. 08-1304. Decided Mar. 18, 2009. (Richard W. Roberts, J.) [Counsel not given in published opinion]. DWLR page no. 673.
TORT LAW / FALSE ARREST / MALICIOUS PROSECUTION / CIVIL RIGHTS
/ DÉPEÇAGE / GOVERNMENTAL IMMUNITY
RULES OF TRANSFER TO ANOTHER FEDERAL DISTRICT / GOVERNMENTAL INTEREST ANALYSIS
While there are no strict rules on transfer of a case to another federal district court, certain factors must be balanced. These include the
parties’ “private interests” and the Courts’ “public interests.” Among the subsets are such factors as domicile docket status, issues of local
law, systemic integrity, and the interests of judgment. There is a presumption throughout it all that the Plaintiff’s choice of forum should
receive deference. The situation may be resolved under the rubric of “dépeçage,” or the separate application of differing jurisdictional law
to various issues in the same suit. In order to survive a Rule 12(b)(6) Motion to Dismiss a plaintiff need only plead sufficiently to raise a
right to relief “above a speculative level.” Malicious prosecution is a valid cause of action in a Section 1983 case. A county is entitled to
governmental immunity in such suits.
Miller v Insulation Contractors, Inc.
D.D.C. No. 08-155. Decided Apr. 21, 2009. (Richard W. Roberts, J.). [Counsel not given in published opinion]. DWLR page no. 881.
D.C. HUMAN RIGHTS ACT COMPREHENDS OUT-OF-STATE ACTIONS CAUSING DISCRIMINATION HERE
STATUTE OF LIMITATIONS NOT CONSIDERED UNDER RULE 12(b)(1) & (6)
A Statute of Limitations is not a jurisdictional issue for Rule 12(b)(1) & (6) purposes but an affirmative defense which must be properly raised
and pled by a defendant in its Answer. Even under a Rule 12 motion, a Court is obligated to assume the truth of the plaintiff’s allegations
and cannot dismiss a complaint on a limitations basis unless the complaint on its face shows that the action is time-barred and the parties
do not dispute when the limitations period began. A claim may arise under the D.C. Human Rights Act based on actions of an out-of-state
defendant who has caused improper discrimination to occur here. A case filed in the District must afford basic regard for a plaintiff’s choice of
forum and a court may not transfer it without considering all case-specific issues, both public and private. Among these are the convenience
of the parties, the status of the transferee court’s docket, and its familiarity with any out-of-state law at issue.
NASA Federal Credit Union v W. Jenkins Plumbing and Heating Co., et al
D.D.C. No. 09-404. Decided Apr. 20, 2009. (Richard W. Roberts, J.). [Counsel not given in published opinion.] DWLR page no. 865.
CIVIL PROCEDURE
REMOVAL JURISDICTION / WELL-PLEADED
COMPLAINT RULE
Removal to federal court under either a diversity jurisdiction or federal question jurisdiction theory is solely the right of a defendant. If any
defendant is a citizen of the state in which the federal court sits, the right of removal is eclipsed. Proving fraudulent joinder to avert removal
requires a defendant to demonstrate either that there is no possibility that the plaintiff would be able to establish a cause of action against
the in-state defendant in a state court or that there was outright fraud in the plaintiff’s pleading of jurisdictional facts. The presence or
absence of federal question jurisdiction is determined under the Well-Pleaded Complaint Rule, whereby a plaintiff is deemed master of its
own complaint and may avoid federal question jurisdiction altogether by omitting any pleading under federal law and confining its claims to
those that arise under state law only.
Roane, et al v Holder
FEDERAL DEATH PENALTY CASE CHALLENGE
ACCRUAL OF STATUTE OF LIMITATIONS / RULE 12(b)(6) DISMISSAL-SUMMARY JUDGMENT / APA APPLICATION / FIFTH AND EIGHTH AMENDMENT CHALLENGES
A Statute of Limitations bar is an affirmative defense and the defendant bears the burden of proof thereon. In a death penalty case the
commencement of the limitations period, and thus accrual of a plaintiff’s right to file suit, obtains when s/he knew or should have known
of that right. This, however, is a matter of fact to be determined by a jury or other fact finder, not a matter for summary judgment. That the
66
DEA has not issued a registration for the dispensing of one of the lethal drugs in the lethal injection protocol is an internal decision for the
Executive Branch, like a decision not to indict a person, and carries with it a heavy presumption against judicial review. An attack on the
lethal injection protocol, per se, is a separate issue, however, and may be litigated.
Strong-Fisher v Lahood
[Editor’s Note: The Supreme Court has opened the door to retaliation claims under Section 1981 with its ruling in Cracker Barrel Old
Country Store West, Inc. v. Humphries, No. 06-1431 (May 27, 2008), 128 S.Ct. 1951 (2008), 553 U.S. __ (2008).]
CIVIL PROCEDURE / BASIS FOR DEFAULT JUDGMENT AGAINST THE UNITED STATES
TITLE VII IS EXCLUSIVE REMEDY FOR CLAIMS OF DISCRIMINATION IN FEDERAL EMPLOYMENT
A default judgment must be a sanction of last resort to be used only when less onerous methods will be ineffective or obviously futile. Considerations include whether the default was willful, whether the plaintiff would be prejudiced, and whether there is a meritorious defense.
Delay in and of itself does not constitute prejudice. A default judgment may not be entered against the United States or one of its officers or
agencies unless a plaintiff establishes a claim of right to relief by evidence that satisfies the court. Title VII, not Section 1981, provides the
exclusive judicial remedy for original claims of discrimination in federal employment as contrasted with those of retaliation.
ROBERTSON
Boardly v US Dept. of the Interior
D. D.C. No. 07-1986. Decided Mar. 17, 2009. (James Robertson, J.) [Counsel not given in published opinion]. DWLR page no. 645.
[Editor’s Note: That a Christian evangelist sought to proselytize for his religion in the shadow of Mt. Rushmore is particularly ironic and
shows that he had not done much research into the matter, inasmuch the four Presidents depicted there are hardly models of Christianity.
George Washington, ostensibly an Episcopalian, routinely departed services before Communion, rather than accede to the status of a
sinner in need of confession and penance and was commonly referred to by friends and family as a “deist.” When the rector admonished
him on his conspicuous exits, he quit going altogether on Communion Sundays. Thomas Jefferson was a self-proclaimed deist, of which
much political hay was made by his enemies in both his presidential election campaigns in 1800 and 1804. As the primary author of the
Declaration of Independence in 1776, he referred only to “Nature’s God” and, of course, made no reference to Jesus or Christianity. He
even re-edited his own version of the Bible in which he excised almost all the teachings of Jesus and if he had any religion at all, it was
something akin to Unitarianism. Although Abraham Lincoln made numerous references in his speeches and writings to a belief in God,
he never joined any Christian Church or left any statement of his belief in Jesus Christ. After his death, his widow, though bereft of his soul
for the rest of her life, acknowledged that he “had no hope and no faith in the usual acceptance of these words” from a religious standpoint.
Theodore Roosevelt, of record member of the Dutch Reformed Church, was much more a preacher than a penitent, using the “Crusader”
concept of Christianity as fodder for everything from Big Stick Diplomacy against foreign powers, to Trust Busting against magalopolies, to
pressuring the Panama Canal out of Columbia, to defending National Conservationism against anti-environmentalists. Clearly, he did not
believe that the meek – or the pamphleteers – would inherit the earth.]
CONSTITUTIONAL LAW / RESTORATION OF RELIGIOUS FREEDOM ACT
NATIONAL PARK SERVICE PERMIT REGULATION REQUIRING PERMIT STRUCK DOWN IN PART ON
FIRST AND FIFTH AMENDMENT GROUNDS BUT UPHELD GENERALLY
In a First Amendment attack on a statute or regulation as applied, a plaintiff must plead factual allegations sufficient to rise above the speculative level and suggest a plausible scenario for relief. Where the issue or request complained of has since been granted, the complaint may
be dismissed as moot. A facial attack as a prior restraint can only be granted if the restrictions placed on speech were content-oriented,
insufficiently tailored to serve a compelling government interest, and fail to leave open ample alternative channels for communication.
The success of a facial challenge does not depend on demonstrating that a government official has ever exercised discretion as a prior
restraint, but rather on whether there is anything in the regulation or policy that prevents it. A regulation that is impermissibly vague or
broadly worded may violate the First Amendment. At the same time, however, the offending portion may be severed and stricken, allowing
the remainder to survive. A violation of the Restoration of Religious Freedom Act in this regard occurs only where the Government’s policy
creates a “substantial burden” on religion, requiring a person to engage in conduct that violates his religious beliefs or prevents him from
engaging in conduct that they require, while at the same time foreclosing all other avenues. Denial of permits on the grounds of clear and
present danger may not be based on the unfettered whim of officials. Delays in the issuance of such permits may be justified in order to
allow officials to prepare adequately for a scheduled event so that the cleanliness, scenic beauty, tranquility, safety, and historical value of
government lands may be protected.
Hollister v Soetoro
D.D.C. No. 08-2254. Decided Mar. 5, 2009. (James Robertson, J.). Phillip J. Berg, Esq., of the Pennsylvania Bar, Lawrence J. Joyce, Esq.,
apparently of the Arizona Bar, and John D. Hemenway, Esq., of the D.C. Bar and the Bar of the Court, for the Plaintiff. Robert Felix Bauer,
Esq., of the D.C. Bar and the Bar of this Court, for Defendant. DWLR page no. 537.
[Editor’s Note: According to his official birth certificate, the future President in this case was born under the name Barack Hussein Obama
II, on Aug. 4, 1961, in Honolulu, Hawaii, a copy of which may be found at “http://images.dailykos.com/images/user/3/BO_Birth_Certificate.
jpg” http://images.dailykos.com/images/user/3/BO_Birth_Certificate.jpg.” After his parents’ divorce in 1964, his mother remarried and, as
noted in the Court’s opinion, when his family was living in Indonesia, he enrolled in grade school in 1968, under the name “Barry Soetoro,”
67
using an Americanized nickname and the last name of his stepfather, by which he was known from ages 6-10. His birth in Hawaii, two
years after it had become a State, made him a natural-born U.S. citizen and thereby qualified, after having lived 14 years in this country and
attaining the age of 35, to be President of the United States under Art. II, § 1 of the Constitution. The Framers included this requirement in
1789, when the new nation was emerging literally surrounded by contiguous British, French, and Spanish territories because they wanted
to secure the administration of the country from falling under the aegis of “foreigners.” As it was, the first seven Presidents, from George
Washington to Andrew Jackson, had all been born British subjects in the American Colonies before the Revolution. Martin Van Buren of
New York was the first President (1837-41) born (1782) as a U.S. citizen after Independence had been declared in 1776. And, as a matter
of fact, ten U.S. Presidents have been inaugurated under names other than those which they were given at birth: Hiram Ulysses [Simpson]
Grant, Stephen Grover Cleveland, William McKinley, Jr., Theodore Roosevelt, Jr., Thomas Woodrow Wilson, John Calvin Coolidge, David
Dwight Eisenhower, Leslie Lynch King, Jr. (Gerald Rudolph Ford), William Jefferson Blythe, III (William Jefferson Clinton), and, technically,
Barack Hussein Obama II. President Van Buren, by the way, was beset from his first day in office by the disastrous effects of the Panic
of 1837, the worst Economic Depression in the young nation’s history up to that time, primarily caused by uncontrolled and overreaching
bank and other speculation and the massive withdrawal from circulation of various local subsidized “specie” (bank notes used as local and
regional paper currency because the U.S. had not yet developed a national monetary system) after Van Buren’s stubborn, militaristic, and
shortsighted predecessor, Andrew Jackson, had waged a “democratic” war on the “aristocratic” First Bank of the United States, causing
its collapse, together with numerous other financial institutions nationwide. A close reading of this history shows that recent developments
under what the Plaintiff would call “President Soetoro’s” Administration are historically new only in terms of degree.]
CIVIL PROCEDURE / RULE 11
ORDER TO SHOW CAUSE ISSUES FOR FRIVOLOUS AND HARASSING COMPLAINT FILED AGAINST
THE PRESIDENT OF THE UNITED STATES
A civil suit predicated on diversity and interpleader jurisdiction attacking the citizenship qualification of the current President of the United
States was found to be both frivolous and harassing in violation of Rule 11 and subjected Local Counsel to an Order to Show Cause as to
why sanctions for attorney’s fees and related expenses should not be imposed against him.
Kline v Springer
D.D.C. No. 07-0451. Decided Mar. 18, 2009. (James Robertson, J.). [Counsel not given in published opinion]. DWLR page no. 957.
[Editor’s Note: This is the kind of complaint that accounts for the pitifully low success rate of Title VII and other discrimination complaints
before the U.S. District Court here. In 201 cases in 2008, only 12 (6%) were the subject of affirmative rulings wholly for the plaintiff claiming
discrimination. In contrast, 100 cases (50%), like this one, did not even make it past the initial motions stage, resulting in rulings for the
entirely for the defendant. (The remaining 49 instances (24%) were “split decisions” on rulings in part for each party.) Put another way, in
terms of all the decisions, plaintiffs prevailed in only 26% of the rulings.
RACE, SEX, AND AGE DISCRIMINATION
LEGITIMATE, NON-DISCRIMINATORY REASONS UPHELD
Even when a long series of allegations is strung together in a discrimination complaint, their collective weight cannot sustain charges of
race, gender, and sex discrimination, when each is without sufficient supporting evidence in its own right
SULLIVAN
Hamilton v Sanofi-Aventis U.S. , Inc
D.D.C. C.A. No. 08-2052. Decided June 24, 2009. (Emmet G. Sullivan, J.). [Counsel not given in published opinion]. DWLR page no.
1393.
WORKERS COMPENSATION ACT
DETERMINATION OF SUBJECT MATTER JURISDICTION / SPECIFIC INTENT REQUIREMENT
In District Court a plaintiff has the burden of proving subject matter jurisdiction, which is subject to closer scrutiny than would be required to
survive a Rule 12(b)(6) motion and for which the Court may consider materials outside the pleadings. The D.C. Workers Compensation Act
applies to business enterprises localized principally in the District and is employees’ exclusive remedy against the employer, thus depriving
them of the right to pursue common law tort suits against employers or co-workers if the injuries are covered by the Act. From a jurisdictional
standpoint, well-settled rules of administrative law require that when there is a substantial question whether the Act applies, the administrative agency charged with implementing it, due to its special expertise, has primary jurisdiction to make the initial determination concerning
coverage before judicial jurisdiction can be exercised. The employee bears the burden of proving that the Act does not apply to on-the-job
injuries. If there is a substantial question still open, the agency must be given the primary opportunity to make such a determination. In so
doing, a distinction is to be made between an employer’s “knowing” that a injury would occur from a particular imposition of circumstances
and its “intending” that the employee be injured thereby – a distinction, in short, between accidental and intentional harm within the meaning
of the WCA. Moreover, the standard for the latter is that of “specific intent.”
Musgrove v DC Public Schools
D.D.C. No. C.A. 06-1861. Decided Mar. 16, 2009. (Emmet G. Sullivan, J.) [Counsel not given in published opinion]. DWLR page no.
657.
D.C. HUMAN RIGHTS ACT / TITLE VII
RULE 12(b)(6) MOTION / SECTION 12-309 NOTICE / STATUTE OF LIMITATIONS / PUNITIVE DAMAGES
68
A Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim requires a plaintiff to set forth allegations sufficiently detailed as to raise a
right to relief above the speculative label. The Court must accept those allegations as true, rendering the plaintiff the benefit of all inferences
derived therefrom. In so doing, the court may consider only the facts alleged in the complaint, together with any attached or incorporated
documents, and factors subject to judicial notice. The statutory requirement that the District be given written and detailed notice of the intent
to file a lawsuit against it via service on the Mayor’s Office is mandatory, so as to given the Government the opportunity to cure defects and
to prepare for litigation. The notice requirement, however, is to be construed liberally, resolving all doubts in favor of compliance therewith.
The Statute of Limitations for a suit under the D.C. Human Rights Act is one year from the date of the discriminatory act complained of. A
distinction is made between a suit over an employee’s “termination” and a suit regarding an employee’s claim for discrimination.
URBINA
Farris v Clinton
D.D.C., C.A. No. 05-1975. Decided Mar. 12, 2009. (Ricardo M. Urbina, J.). [Counsel not given in published opinion.]. DWLR page no.
841.
TITLE VII EMPLOYMENT DISCRIMINATION
McDONNELL DOUGLAS ANALYSIS AS TO BOTH DISCRIMINATION AND RETALIATION / EXHAUSTION
OF REMEMDIES NOT A REQUIREMENT FOR THE LATTER / TEMPORAL CONSIDERATION AS TO RETALIATION
There is a basic distinction between the McDonnell Douglas analysis in employment discrimination cases for original claims of discrimination and those for retaliation that are essentially two-fold. Before an initial discrimination claim may be filed the plaintiff must first exhaust
all administrative remedies. That is not a requirement on a retaliation claim, inasmuch as adjudication is already under way. In an original
claim the employer’s stated non-discriminatory reason need not necessarily turn out to be accurate or totally relied upon, if at all. On a retaliation claim, however, the plaintiff has the burden of proof of showing both that the reason stated was the putatively retaliatory action was
false and that retaliation was the actual reason for the action. A long temporal lapse between an employer’s acquisition of knowledge of
an employee’s discrimination claim and a putatively retaliatory action militates against a finding on the latter, six months having been ruled
too long a lapse. On discrimination claims, statistical evidence, while helpful, is not dispositive because of varying circumstances case to
case. As to comparative candidate qualifications, an employer is entitled to make a “judgment call,” all other elements being comparatively
equal. Pre-selection of a candidate in the face of “bidding” as only a formality is facially discriminatory.
Gibson-Michaels v Bair
D.D.C. No. 06-1940. Decided Feb. 23, 2009. (Ricardo M. Urbina, J.) [Counsel not given in published opinion]. DWLR page no. 509.
[Editor’s Note: This ruling on reconsideration essentially repeats the Court’s previous ruling on the ECF issue, which appeared as GibsonMichaels v. Bair, 138 D.W.L.R. 2045 (Sept. 19, 2008)].
CIVIL PROCEDURE / ECF SYSTEM
CIVIL RULE 60(b) RELIEF FROM JUDGMENT / LOCAL RULE 83.6 WITHDRAWING AS COUNSEL
All Counsel of Record have a duty to check the Court’s Electronic Case Filing (ECF) System with “reasonable frequency” in order to keep
up with the rulings in their cases. A naked assertion that notice of a Court action had not been received is an insufficient basis for obtaining relief. Rule 60(b)(6) relief from judgment should be granted only under extraordinary circumstances and not unless the movant can
demonstrate a meritorious claim or defense. A Motion to Withdraw as Counsel must be accompanied by a written statement of the party’s
consent, with a separate certificate of service to the party at its last known address, accompanied by a notice to the party either to obtain
successor counsel or notify the Court within five days of service of the party’s intent to proceed pro se; and the certificate’s service must
be signed and dated by counsel.
Pharmaceutical Care Management Ass’n v DC
D.D.C. No. 04-1082. Decided Mar. 19, 2009. (Ricardo M. Urbina, J.) [Counsel not given in published opinion].DWLR page no. 681.
CONSTITUTIONAL LAW / PREEMPTION DOCTRINE
ERISA vs. D.C. ACCESS Rx ACT
The purpose of ERISA is to establish rules for the regulation of pension plans in private industry. A state statute with the same purpose
must not conflict or it will be subsumed by the Federal Doctrine of Preemption. The goal of ERISA is to bring about a unified national body
of benefits law. All State statutes or regulations that “relate to” such programs either “directly or indirectly” are subsumed and the statute
has a broad sweep in so doing.
WALTON
Davis v Filip
D.D.C. No. 03-2531. Decided Jan. 22, 2009. (Reggie B. Walton, J.) [Counsel not given in published opinion.] DWLR page no. 441.
CIVIL PROCEDURE / TITLE VII LITIGATION
STANDING / DOCTRINE OF PRUDENTIAL MOOTNESS
69
The Doctrine of Prudential Mootness invokes equitable reasons for leaving an issue undecided. The efficient administration of justice requires
that a Motion for Reconsideration demonstrate a good reason to address an issue that has already been litigated by the parties.
Hamilton v Geithner
D.D.C. No. C.A. 05-1549. Decide May 19, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion]. DWLR page no. 1157.
[Editor’s Note: An earlier ruling in this case was published sub nom. Hamilton v. Paulson, 136 D.W.L.R. 1035 (May 14, 2008)(selection of
candidate with lesser credentials not always discrimination).]
CIVIL PROCEDURE / TITLE VII CASE
MOTION TO RECONSIDER SUMMARY JUDGMENT DENIED / MOTION TO AMEND COMPLAINT GRANTED
A Motion to Reconsider is reviewed under Rule 54(b) which permits revision of what remains an interlocutory judgment “at any time before
the entry of a judgment adjudicating all claims and all the parties’ rights and responsibilities,” as contrasted with either Rule 59(e) an 60(b),
both of which apply to final judgments and require different standards to change. Rule 54(b) is governed by an “as justice requires” standard,
which includes such factors as a patent misunderstanding of a party’s position, a consideration outside the issues, erroneous interpretation
of the law, or a significant change in the law since the ruling. The movant must also show that some sort of “injustice” would result absent
the relief requested. The CFR expressly allows for promotion after 52 weeks “in a position no more than one grade lower than the position
to be filled.” Rule 15(a) requires that leave to amend a complaint should be “freely granted when justice so requires.” A court can only deny
leave to amend a complaint on futility grounds where the proposed pleading would not survive a motion to dismiss. In a Title VII case “failure
to exhaust remedies” argument, it reiterated the rule that this is a an affirmative defense, not the basis for a motion to dismiss.
Hurt v DC Services and Offendder Supervision Agency
D.D.C. No. 07-1167. Decided May 5, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion]. DWLR page no. 1021.
[Editor’s Note: A question has arisen as to whether information provided by a probationer or parolee to CSOSA, presumably in confidence,
may be subpoenaed or otherwise subject to involuntary disclosure, for use in civil litigation, for example, under 5 U.S.C. § 552a(b)(11)
(exception to confidentiality is the subject of a “court order”). At least one Superior Court Judge thinks so. See Valentine v. Carpenter, 134
D.W.L.R. 771 (Mar. 31, 2006)(D.C. law does not recognize the existence of a common law privilege for information obtained by a parole
officer from parolee and vital information, such as the parolee’s last known address, may be subpoenaed in order to satisfy a civil judgment)
(Duncan-Peters, J.)].
PRIVACY ACT
INVOLUNTARY DISCLOSURE OF PAROLEE RECORDS / CSOSA STATUS
The Privacy Act prohibits a federal agency from disclosing any record obtained by communication with a person without that person’s permission, with specific exceptions. The Act further specifies that it is the sole remedy for any misuse or improper disclosure of information by
a federal agency and allows for monetary damages and attorney’s fees where the agency is shown to have acted intentionally or willfully.
At the same time, however, non-disclosable information must be of the type that can actually be “retrieved” from an agency’s records, not
an employee’s general knowledge of particular information.
Lindsey v US
D.D.C. No. C.A. 05-1761. Decided Apr. 27, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion].DWLR page no. 917.
CIVIL PROCEDURE / PROPER FORM OF A COMPLAINT / LOCAL RULE 7.1(b) CONCESSION
NECESSITY OF UNDERLYING FACTS TO SUPPORT NOTICE PLEADING ALLEGATIONS / MOTION FOR
MORE DEFINITE STATEMENT
Although the rules for pleading a complaint require only a plain statement of the relief sought, a plaintiff, even a pro se one, still has the
obligation of setting forth underlying facts that will transform general accusations into allegations with enough specificity to give a defendant
sufficient notice on which to prepare a defense. Bare assertions, claims of statutory violations, and conclusory statements do not suffice.
Arguments in motions to which no response is made may be considered as conceded under Local Rule 7.1(b). Motions for a More Definite
Statement of Facts are not favored.
Ross v Astrue
D.D.C. No. C.A. 0o2-553. Decided July 24, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion.] DWLR page no.
1597.
ADMINISTRATIVE LAW / SOCIAL SECURITY BENEFITS
PROPER FACTORS FOR DETERMINING DEGREE OF “RESIDUAL FUNCTIONAL CAPACITY” IN DISABILITY AND SSI CLAIMS
The governing standard of review for a Social Security Administration (SSA) decision regarding the awarding of disability benefits is confined
to determining whether it was supported by substantial evidence in the record. That standard falls somewhere between more than a scintilla
but less than a preponderance of the evidence. To qualify for SSI a claimant must show that he is “disabled,” meaning the context that he is
unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. Once a claimant
makes such a showing, the burden shifts the SSA to demonstrate that the claimant can do other work, considering his age, education, work
experience, and any residual functional disability factors. In so doing, the SSA may rely on its Medical-Vocational Guidelines to demonstrate
the claimant’s ability to find alternative employment. In making such determinations, when an ALJ arrives at a conclusion that contradicts
70
some part of the evidence on the record, the ALJ must explain the rationale for so doing. Otherwise a reviewing court cannot perform its
assigned function because it will not know whether the evidence was rejected rather than simply ignored and it is not the Court’s obligation
to engage making these determinations for the ALJ. In determining SSI eligibility, the proper age factor consideration is a claimant’s age at
the time of the hearing.
Texas Border Coalition v Napolitano
D.D.C. No. 08-0848. Decided May 15, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion]. DWLR page no. 1101.
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT
STANDING TO SUE THEREUNDER / BY UNINCORPORATED ASSOCIATION / NO RULE-MAKING PROCEDURE / NO PRIVATE RIGHT OF ACTION CREATED / REQUIREMENT OF ADMINISTRATIVE PROCESS
FOR EMINENT DOMAIN / RATIONAL DRAWING OF CLASSES
U.S. Code 28 U.S.C. § 1331 on federal question jurisdiction is a plenary grant of jurisdiction “arising under” cases. Sovereign Immunity does
not apply as a bar to suits alleging that a government officer’s actions were unconstitutional or beyond statutory authority. Formal standing
to sue requires that a plaintiff demonstrate injury in fact, causation of harm, and redressability by judicial action. Standing will not obtain
where the plaintiff has raised only a generally available grievance about government, claiming only harm to his and every citizen’s interest
in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public
at large. An unincorporated group has standing only if its members would otherwise have standing to sue in their own right, the interests
are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit. The Illegal Immigration Reform and Responsibility Act provides no other means of acquiring the property of an
unwilling owner other than through the condemnation process, a suit must be initiated at the administrative proceeding level. Where there
had been no showing of actual injury, a plaintiff may not embroil a court in the decision-making process because such a determination is
a nonjusticiable “political question” inappropriate for judicial review. Where a statute makes no provision for or reference to administrative
rulemaking procedures, a court may not require them. The same is true where a statute does not provide for or otherwise create any private
right of action based on a governmental decision made under the statute. Where the Government has shown the required “rational basis” for
its prospective actions in exercising its inchoate eminent domain power attendant with the required “just compensation” requirement under
the Fifth Amendment, the Court may not intervene before such a procedure has been completed. Where a statute draws classifications
that are “rationally related to a legitimate state interest,” an equal protection claim will not lie.
US v Garcia
Crim. No. 04-094. Decided April 23, 2009; Supplemented July 30, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion].
DWLR page no. 1681.
Editor’s Note: The DWLR deems this to be an important opinion containing an excellent legal analysis of the issues involved for the D.C.
Legal Community. A copy of this opinion, however, is not available in a format which can be transliterated for publication purposes in our
pages. Consequently the text of the opinion is not published herewith. The scanned document in its entirety, however, can be located and
printed from the U.S. District Court’s website at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cr0094-95.
FEDERAL SENTENCING GUIDELINES
APPLICABILITY TO RE-SENTENCING / DISCRETION TO IMPOSE HIGH-RANGE PENALTY
Despite the fact that the U.S. Sentencing Guidelines have been amended to allow the reduction of initially-imposed harsher penalties for
convictions in cases relating to crack cocaine as compared to powder cocaine, the Court in this matter determined that under the amended
range the Defendant merited a new sentence toward the top end of the revised guideline range for his conviction in the former category,
thus eschewing a ruling on the constitutional issue of whether the revised Guidelines are applicable to re-sentencing proceedings.
Wells v Astrue, Comm’r of Social Security
D.D.C. No. 02-1357. Decided July 30, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion]. DWLR page no. 1689.
SOCIAL SECURITY LAW
TREATING PHYSICIAN RULE
The term “disabled” for Social Security benefit purposes means an inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment continuing for a period of not less than 12 months. This determination results from a
five-step evaluation in which a claimant must demonstrate that (1) he is not presently engaged in any substantial gainful activity; (2) has a
severe impairment (3) which specifically limits his ability to do basic work activities and (4) which meets a disabling impairment in the SSA’s
listings; and (5) has an inability to perform past relevant work. A critical factor in making this determination is the “Treating Physician Rule”
which provides that a treating physician’s opinion regarding a claimed impairment is usually binding on the fact-finder unless contradicted
by substantial evidence. An ALJ who rejects the opinion of a treating physician must explain his reasons for doing so and failure to do so
constitutes reversible error. A medical diagnosis which concludes that a claimant is “disabled,” though a legal conclusion, does not mean that
an ALJ is free to totally ignore the medical conclusion reached by a plaintiff’s treating physicians. An ALJ cannot merely disregard evidence
which does not support his conclusion.
Williams v Chu, Sec. of Energy
D.D.C. No. 07-901. Decided Aug. 13, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion]. DWLR page no. 1757.
ADMINISTRATIVE LAW / EMPLOYMENT DISCRIMINATION LAW
71
MOTION FOR RECONSIDERATION TOLLS RUNNING OF TIME FOR FINAL ORDER PURPOSES UNTIL
MOTION IS RULED UPON
The time within which to file a Title VII suit after the issuance of a “final order” at the administrative level is tolled by the filing of a motion
for reconsideration and said order does not become final so as to commence the running of the time within which to file such a suit until 90
days after such a motion is denied. A statute of limitations is not a jurisdictional issue which may serve as a predicate for a Rule 12(b)(1)
motion but, at most, is only relevant for a Rule 12(b)(6) motion on the grounds that relief cannot be granted any longer.
Winston & Strawn, LLP v Doley, et al
D.D.C. No. CA-08-144. Decided Sept. 17, 2009. (Reggie B. Walton, J.). [Counsel not given in published opinion]. DWLR page no. 2053.
CONTRACT LAW / ATTORNEY’S FEES DISPUTE / D.C. BAR’S MANDATORY ARBITRATION RULE / WAIVER
CIVIL RULE 59(e) / BASIS ON WHICH MOTION TO ALTER OR AMEND JUDGMENT IS TO BE TAKEN AS
A MOTION TO RECONSIDER / SUMMARY JUDGMENT
Motions for Reconsideration under Civil Rule 59(e) are disfavored and should be granted only under extraordinary circumstances such as
an intervening change of controlling law, availability of new evidence, or the need to correct a clear error or prevent manifest injustice. D.C.
Bar Rule XIII(a) requiring mandatory arbitration of fee disputes may be waived if the client foregoes arbitration by actively participating in a
breach of contract suit over the disputed fees, including at the summary judgment stage. Under the Law of Contracts a party’s subjective
understanding as to the nature and limits of fees charged is irrelevant when they are clearly set forth in the contract itself.
US SUPREME COURT
ROBERTS
US v Herring
U.S.S.Ct. No. 07-513. Decided Jan. 14, 2009. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and
Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. Breyer, J., filed a dissenting
opinion, in which Souter, J., joined. DWLR page no. 237.
EXCEPTION TO THE EXCLUSIONARY RULE BASED ON NEGLIGENT, BUT NON-CULPABLE,
POLICE CONDUCT
Police mistakes due to isolated negligence, leading to an unlawful arrest, as in the erroneous issuance of a warrant due to failure to update
a computer database, do not require the automatic application of the Exclusionary Rule. The rule itself is not an individual right but applies
only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. The extent to which
the rule is justified by its deterrent effect varies with the degree of law enforcement culpability. To trigger the rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the
justice system. If police acted “in objectively reasonable reliance” on an invalid warrant, the rule is not applicable.
72
GENERAL INFORMATION
DC COURT OF APPEALS
Merit Panel...52, 99, 144, 196, 260, 297, 364, 480, 536, 588, 644, 696, 934,1004, 1060, 1112, 1156, 1220, 1276, 1336, 1392, 1872, 1912,
1960, 2016, 2084, 2176, 2268, 2320, 2396, 2464, 2508, 2564, 2600
D.C. Court of Appeals Moving...896
Administrative Order 1-09...976, 980, 992
Order M-233-08...1080
Order M-236-09...2499, 2563, 2608
Order M-235-09...2522
Regular Calandar...75, 287, 519, 727, 1029, 1679, 1891, 2099, 2383, 2579
Summary Calendar...87, 295, 504, 735, 1011, 1283, 1687, 1899, 2111, 2366, 2587
Bar Disciplinary Cases...108, 438, 572, 824, 1829, 1923, 2112, 2487
Attorney Disciplines
John F. Beggin...111
Patrick J. Smith...111
Robert R. Stone, Jr...111
Nazanin M. Nasri...323
Michael W. Ryan, Jr...323
David H. Safavian...427
Ronald M. Cohen...438
Richard W. Allison, Jr...535
Michael H. Ditton...535
Theodore F. Stevens...856
Daniel S. Orci, Jr...1011
Michael E. Gallagher...1046
Bada P. Nguyen...1046
Nathan H. Wasser...1046
Bradley David Schwartz...1086
Louis Peter Tanko, Jr...1086
Chandra Mahinda Bogollagama...1086
James Q. Butler...1496
Srinath Jay Govindan...1552
Kimberly Hope Levy..1552
Amy L. Nathan...1552
Andrew S. Neal...1552
In re: Lloyd F. Ukwu...1552
Barry K. Downey...1590
Richard J. Haas...1590
Donald P. McLaughlin...1590
Lawrence T. Robinson...1590
Leslie D. Silverman...1590
Kevin J. Flynn...1672
Anne-Marie Roy...1967
Renard D. Johnson...1994
Elmer D. Ellis...1994
Paul E. Strauss...1994
Robert Pleshaw...2036
Will Purcell...2036
Michael J. Songer...2174
Chris C. Yum...2174
Robert S. Fisher...2174
Robert M. Kramer...2174
Paul B. Royer...2174
Idus J. Daniel, Jr...2332
Edward M. Fink...2408
Dwerwin T. Brannon...2408
Lucille Saundra White...2419
Karl W. Carter, Jr....2486
Bruce H. Troxell...2494
Harold E. Brazil...2494
Tolly A. Kennon, III...2494
Shelley A. Stasson..2512
Richard Lloyd Thompson II...2512
DC SUPERIOR COURT
Administrative Order 08-22 (Access to Juvenile Records by the Criminal Justice Coordinating Council)...23
Administrative Order 08-23 (Courthouse Releases-Permanent Implementation)...27
Administrative Order 08-24 (Appointments to Mental Health Panel - Effective January 1, 2009)...39
73
Administrative Order 09-01 (Updates to Family Court Attorney Panels-Supersedes Administrative Order 08-04)...120
Administrative Order 09-02 (Pairing of Judges, Supersedes Administrative Order 08-12)...Did not publish; available at www.dccourts.gov.
Administrative Order 09-03 (Special Education Attorney Practice Standards)...233
Administrative Order 09-04 (Court Interpreting Services-Supercedes Administrative Order 98-12)...506
Administrative Order 09-05 (CJA Guideline Fees for Superior Court Cases-Supercedes Administrative Order 08-19)...717
Administrative Order 09-06 (CJA and CCAN Fee Schedule-Supersedes Administrative Order 08-18)...1248
Administrative Order 09-07 (Regular Re-establishment of CJA and Family Court Attorney Panels)...1290
Administrative Order 09-08 (Additional Covington & Burling LLP Attorneys Eligible for Receiving Pro Bono Appointments)...2164
Administrative Order 09-09 (Court Interpreting Services Vacates Administrative Order 09-04 and 98-12)...2166
Administrative Order 09-10 (DC Volunteer Lawyers Project)...2173
Administrative Order 09-11 (Pilot for Non-Lawyer Guardians in Probate)...2179
Administrative Order 09-12 (Performance Measure-Time to Disposition with Excludable Time-Supercedes Admin. Order 08-13)...2134
Administrative Order 09-13 (Performance Measure- Trial Date Certainty-Supersededs Admin. Order 08-14)...2148
Administrative Order 09-14 (Pairing of Judges- Supersedes Administrative Order 09-02)...2629
Administrative Order 09-15 (Revised Procedures Under the Bail Reform Act of 2000- Supercedes Admin Order. 08-03)...2636
Magistrate Judges’ Schedule...222, 445, 680, 880, 1088, 1312, 1420, 1584, 1855, 1991, 2280, 2536, 2670
Notice of Candidacy for reappointment as a Magistrate Judge for Frederick J. Sullivan...670, 718, 767
Guardianship Conference...815, 820
Judge for a Day Contest 2009...864
DC Courts Conference/Training and Holiday Schedule...968
Magistrate Judge Vacancy Announcement...1030, 1079
Superior Court Expands Public Access to Court Information...1146
DC Courts Upcoming Holiday Schedule...1557, 1620, 1789
Magistrate Judge Parker declares Candidacy for Reappointment...1728, 1743, 1788, 1852, 1892
Magistrate Judge Lee declares Candidacy for Reappointment...1966, 2024, 2067, 2124
DC Superior Court’s Mental Health and Mental Retardation Subcommittee seeking applicants...2154, 2226, 2245
DC Superior Court Judges Temporary Courtroom Re-Assignment...2296, 2368
Civil Division Offices of DC Superior Court have moved...2323
23rd Annual Adoption Day...2401
New Landlord and Tenant Email Account available for General Information...2447, 2664
2010 Judge Assignments...2650
US COURT OF APPEALS
Advisory Committee on Procedures Vacancy Notice...664, 708
Judicial Conference of the DC Circuit Standing Committee on Pro Bono Legal Services Vacancy Notice...672
US District Court Seeks Nominations for Pro Bono Award...12, 29, 116, 118, 159, 242, 288, 336, 392, 452
Recess Assignments...324, 2578
Emergency Assignments...752, 1218, 1244, 1428, 1915, 2571
Motions Court Assignments...758, 1427, 1980, 2556
Greg Hughes Designated Acting Clerk of Court...2381, 2448, 2494
PROPOSED AND FINAL RULES
Rule Promulgation Order 09-01 (Amend SCR Criminal 113 and 117)...439
Rule Promulgation Order 09-02 (Amend SCR Civil 55, 55-II, CA Form 114, LT 11, 14 and 14-I)...514
Rule Promulgation Order 09-03 (New SCR Criminal 49.1)...1308
Rule Promulgation Order 09-04 (Amend SCR Tax 3, 4, 5, 6 and 9)...1632
Rule Promulgation Order 09-05 (Amend SCR Juvenile 2, 12, 17.1, 25, 32, 42, 44, 48, 50, 53, 55, 108, 109, 110, 112 and new 110A and
119)...1762
Rule Promulgation Order 09-06 (Amend SCR Probate 311, 321, 322, 324, 325, and 350)...2344
Order of Amended Circuit Rule 32(a)...200
Notice of Proposed Administrative Order Regarding Electronic Case Filing...307, 343, 415, 469
Proposed Rule Changes to Superior Court Rules Governing Juvenile Proceedings 2, 17.1, 25, 55, and 109...446
Proposed Rule Changes to SCR Criminal 17.1, 26.1, 26.2, 26.3, 29.1, and 44-1...460
Proposed Amendments to US Tax Court Rules of Practice and Procedure...870
Proposed Rule Changes to Superior Court Rules of the Probate Division 322, 324, 325 and 250
and Rules of Practice and Procedure Before The Tax Division 3, 4, 5, 6 and 9...920
Proposed Amendments to SCR Landlord-Tenant Court Rule Forms 1A, 1B, 1C, 1D, and the Summons to Appear in Court...940
Proposed Amendments to Circuit Court Rules 5, 8, 9, 12, 15, 18, 21, 27, 28, 34, 35, and 41; propose addition to
a citation to accompany the new FRAP Rule 12.1...1012, 1070
Notice of Final Rules and Administrative Order Regarding Electronic Case Filing...1100, 1183, 1219
Notice of Proposed Rule Changes (Probate Division 311 and 321)...1630
Proposed Amendments to Fed. Rules of Appellate Procedure...1916, 1967, 2019
Judicial Advisory Committees propose Amendments to Federal Rules...1986, 2208, 2436
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States
(Proposed New Federal Rule of Evidence 502)...2048, 2096, 2147
Superior Court Rules of Criminal Procedure...2349, 2369
Circuit Rules Order and Notice of Final Rules...2417, 2439, 2469, 2485, 2496, 2500
74
Rules Governing Proceedings Under D.C. Code Section 23-110...2440
IOLTA Proposed Revisions...2522
Notice of Proposed Amendment to Circuit Rule 24...2542
GENERAL
Jack Olender 2009 Predictions...31
Pasternak & Fidis, PC names Anne W. Coventry new Partner...83
HBA-DC Endorses Holder, Demeo...183
SABA-DC Annual Membership Drive...235
SABA-DC March Dinner Series...422
SABA-DC DC Bar Monthly Advice & Referral Clinic...451
Schoen joins the Firm of Shulman, Rogers, Gandal, Pordy & Ecker...620
American Law Institute Elects New Members...712
Both HBA-DC Endorsed Candidates to be Nominated to D.C. Superior Court...744
2009 AJS Justice Award...760
Humor of the Law...764, 811, 871, 919, 1038, 1075, 1130, 1189, 1247, 1315, 1368, 1417, 1460, 1508, 1555, 1726
AILA/SABA-DC Citizenship Day...796
Sandra Robinson Honored as Queen of Malpractice...869
SABA-DC Legal Recruitment Event...1048
VSC Third Annual Awards...1124
RICO Convictions of Major Tobacco Companies Affirmed...1164
Marion Barry’s Probation Extended for Two More Years...1182
FBA Capital Area Food Bank Service Project...1233
FBA Cards and Cruise Silent Auction...1259, 1419, 1619, 1731
OES Staff Association’s XI Annual Art Exhibition...1284
Jack Olender receives Good Scout Award...1303
ALI-ABA Offers Guidance and Assistance To Lawyers in Tough Economic Times...1349
FBA Golf Clinic and Cocktail Reception...1378
Time Changes Coming to Federal Rules...1380
DC Law Recognizing Out-of-Jurisdiction Marriages by Same-Sex Couples Takes Effect...1463
Speed Mentoring Links Experienced Antitrust Attorneys, Young Lawyers...1515
BADC Lawyer Referral Service...1735
SABA-DC Meet and Greet with Mayor Adrian Fenty...1737
SABA-DC Reception honoring Appointees to Obama Administration...1745
SABA-DC Pro Bono Clinic...1787
A Brief Topical History of DC Courts...1847
Professor Adam Levetin Receives Inaugural Hamilton Prize...1926
Judiciary Approves Free Access to Judges’ Workload Reports; Courtroom Sharing for Magistrate Judges...2072
Judge Ruiz Honored...2074
New Book Provides Handy Guide to Premarital Agreements...2091
ALI Elects 68 New Members...2127
HABA-DC calls for Nominations for 2009 Equal Justice Awards...2192
Shuker Scholarship...2188, 2232, 2304, 2384
HABA-DC creates Directory of Spanish-speaking Attorneys...2220
SABA-DC Public Interest Fellowship Gala...2255, 2339
SABA-DC Dinner Series: Legal Issues in Trafficking and the South Asian Community...2288
WBADC Dovey Johnson Roundtree Event...2303
Bruce J. Klores Admitted to ACTL...2302, 2499
NABL/WCL Joint Conference...2309
Donald J. Chaikin Death Announcement...2319
A Debate on the National Popular Vote Movement...2327
GW University Law School Presents: Rethinking the Law Governing the Structure and Operation of the Supreme Court...2337
138th Annual BADC Banquet...2367, 2495, 2543
HBA-DC 2009 Equal Justice Awards...2377
Greg Hughes Designated Acting Clerk of Bankruptcy Court...2381, 2448, 2494
Georgetown Law Honors Five...2415
24th Annual Olender Awards...2544
Judge Schwelb Recieves Hero in Law Award...2618
2009 SABA-DC Elections...2622
DCLSIC Organizing Friends and Alumni Association...2628
Christmas Wish List for DC Law Students...2662
7th Annual Wine Tasting and Silent Auction...2710
DC BAR
2008-2009 Program Series...29, 296, 513, 723, 988, 1196
March CLE Events...399
Taxation Section Offers Double Dose of Advice, Support...403
DC Bar Nominations Committee Announces Candidates for Bar Office...599
April Events...687, 703
Volunteer Bar Associations...718, 725
DC Bar Address Change...1039, 1045, 1059, 1064
75
DC Bar Bonus Program...1110, 1123
February 2009 Bar Exam Results...1131
Bar Elections...1132
Bar Elections Underway...1144
DC Bar Golf Tournament...1172, 1187
2009-2010 Program Series...1896, 2095, 2412, 2588
July 2009 Examination Results...2418
DC Bar CLE Program “How To Litigate a Medical Malpractice Case”...2493, 2583, 2623, 2675
JUDICIAL BIO
Kathryn A. Oberly appointed to the District of Columbia Court of Appeals...289, 1061
Joseph E. Beshouri Installed as Superior Court Magistrate Judge...1193
Florence Y. Pan to be sworn in as Associate Judge of the D.C. Superior Court...1473
JUDICIAL NOMINATION COMMISSION
Three Persons Recommended for Judge King Superior Court Vacancy...5
JNC Announces Applicants for Judge Turner Vacancy...24, 62
Three Persons Recommended for Judge Turner Superior Court Vacancy...213
JNC Announces Vacancy occurring as a result of Judge Diaz retirement...359, 423, 487
JNC Announces Applicants for Vacancy Created by Retirement of Judge Diaz...619, 671, 719
Three Persons Recommended for Judge Diaz Superior Court Vacancy...1047, 1087,1 139
Notice of Expiration of Term of Chief Judge of The DC Court of Appeals...1191, 1251, 1311
Notice of Judicial Vacancy by expiration of term of Judge Byrd...1288, 1351, 1407
Candidate for Chief Judge of DC Court of Appeals...1431, 1453, 1477
Eric Washington Redesignated Chief Judge of DC Court of Appeals...1660
JNC Announces Applicants for Judge Byrd Vacancy...1667
JNC Announces Vacancy occurring as a result of Judge Long retirement...2035, 2079, 2129
Three Persons Recommended for Superior Vacancy Created by Retirement of Judge Byrd...2151
JNC Announces Vacancy occurring as a result of term expiration of Judge Alprin...2175, 2227, 2279
JNC Announces Applicants for Vacancy occurring as a result of term expiration of Judge Alprin...2421
DISTRICT OF COLUMBIA UNIFORM LAW COMMISSIONERS
2008 Annual Report...1401
DWLR NOTICES
2009 DWLR Prize Winner...1595
US Postal Service Statement of Ownership...2051
Clarification concerning Published Rules of Criminal Procedure...2397
Citing a DC Superior Court Opinion...2483, 2668
DC COMMISSION ON JUDICIAL DISABILITIES AND TENURE
JTC Begins Reappointment Evaluations of Judges Bartnoff, Bush and Winston......247, 459
JTC Begins Review of Judge Susan H. Winfield...1567, 1629, 1686, 1739
JTC Begins Reviews of Judges Alprin, Byrd, and Long...1939, 2132
JTC Begins Reviews of Kern, Nebeker, Wagner and Ugast...2075, 2133, 2183 , 2247
JTC Begins Reviews of Terry, Mize, and Wynn...2484, 2580, 2622
JTC Begins Reappointment Evaluations of Judges Reid, Beck, and Davis...2671, 2711
The Daily Washington
Reporter
100 E. Pratt Street
Suite 2520
Baltimore, MD 21202
76
SUPPLEMENT TO THE DWLR

The Daily Washington LAWReporter

Transcription

Similar documents

elevateYour Practice - Colorado Defense Lawyers Association

PGCRC Baysox 2016

Fall 2013 Community Currents - Community Foundation for Greater

Fall 2014 Community Currents - Community Foundation for Greater

2016 May-June - Warren County Bar Association

Beginner Rules 2.indd

Judge denies Bevin`s request to close Lexington

How to generate a customized Cause list

Deferred Disposition - Texas Municipal Courts Education Center

Meeting Minutes - City of Langley