Appellate Practice
An Appeal of Right: Navigating the New Court of Appeals of Virginia
Chappell, W. Thomas (Fall 2022). An Appeal of Right: Navigating the New Court of Appeals of Virginia. VBA Journal, 24–25. https://vba.ygsclicbook.com/pubs/vbajournal/2022/fall-2022/live/index.html#p=24 ...
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Determining Whether a New Cause of Action “Relates Back” to the Initial Complaint
Occasionally, a plaintiff may file a complaint and later seek an amendment to add a new cause of action. An issue may arise if the statute of limitations as to the new cause of action has expired. However, if the new cause of action “relates back” to the initial complaint, then the date of filing the initial complaint is used for purposes of calculating the ...
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Civil Interlocutory Appeals In Virginia
*This article was authored with the assistance of Summer Associate Alexa Kathol Macumber. Alexa is pursuing her JD at the Regent University School of Law. While most appeals do not occur until after a final order is issued by the circuit court, there are instances when an issue is so pressing that an appellate court will resolve it before the case proceeds to final judgment ...
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What To Expect From The Virginia Supreme Court Regarding Certified Questions Of Law
*This article was authored with the assistance of Summer Associate, Alexa Kathol Macumber. Alexa is pursuing her JD at the Regent University School of Law. While the vast majority of cases heard by the Supreme Court of Virginia are to review rulings from lower Virginia courts, occasionally the Supreme Court will be called upon to answer “certified questions” on a point of Virginia law for ...
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The New Court of Appeals of Virginia Issues Its First En Banc Ruling, Issuing an Important Ruling on Preservation of Error
Recently, in Jacks v. Commonwealth, No. 0833-20-3, ___ Va. App. ___ (May 17, 2022), the Court of Appeals of Virginia issued its first en banc ruling since it expanded from 11 to 17 full-time members to accompany the new rights of appeal for civil litigants and criminal defendants. For more information about the expansion of the Court of Appeals, please see this article. But the ...
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A Brief Overview of Suspension Bonds and Appeal Bonds for Appeals to the Court of Appeals of Virginia and the Supreme Court of Virginia
As part of a larger set of articles on appellate practice inspired by the Court of Appeals of Virginia taking on an expanded role, this article will discuss the often-overlooked but important topic of appeal bonds. The term “appeal bond” is frequently used colloquially among the Bar to refer to two different types of bonds: (i) a suspension bond or irrevocable letter of credit and ...
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Carmack Preemption – Brentzel v. Fairfax Transfer& Storage, Inc.
In a recent unpublished Fourth Circuit decision, Brentzel v. Fairfax Transfer& Storage, Inc., the broad preemptive force of the Carmack Amendment was reiterated and held sufficient to preempt a plaintiff’s state law tort claim. No. 21-1025, 2021 U.S. App. LEXIS 38522 (4th Cir. Dec. 29, 2021). Plaintiff Cathy Brentzel appealed the district court’s motion to dismiss arguing that the district court erred in determining that ...
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Appellate Practice: Standard of Review in Virginia Appellate Courts
As discussed in our recent article, the Virginia General Assembly voted to allow most criminal defendants and civil litigants to have an appeal as of right to the Court of Appeals of Virginia starting on January 1, 2022. This means that Virginia lawyers will spend more time in the Commonwealth’s appellate courts and will need to rely more on appellate specialist attorneys. Vandeventer Black is ...
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U.S. Supreme Court Rules that the NCAA’s Limits on Education-Related Benefits Violate Federal Antitrust Law
In a recent unanimous decision, the Supreme Court of the United States in NCAA v. Alston ruled that the National Collegiate Athletic Association’s (NCAA) limits on education-related benefits are invalid under federal antitrust law. This decision will affect compensation rules for student-athletes and is perhaps a sign of potential changes ahead in the NCAA’s student-athlete compensation model. In Alston, NCAA Division 1 football and basketball student-athletes ...
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Virginia Has Created a New Right of Appeal for Civil and Criminal Litigants
Until this last legislative session, Virginia was the only state in the nation without a right of appeal from civil judgments and criminal convictions. However, the most recent General Assembly session passed, and the Governor signed, perhaps the most consequential piece of legislation affecting the Virginia legal system in many years: the creation of a right of appeal for most litigants, civil and criminal. Historically, ...
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Resolved, yet Unclear: Supreme Court Tightens CERCLA Contribution Claim Requirements
Joseph Romero Appellate Practice, Environmental, Environmental Law Monitor, Government Contracts, Litigation
In a unanimous decision, the Supreme Court ruled that a party’s right to contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) after entering into a settlement arises only when the settlement agreement resolves CERCLA-specific liabilities. This decision may call into question the effect of existing settlement agreements, the viability of ongoing contribution cases, and may revive the ability of some parties ...
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In Split Decision, Federal Circuit Affirms Agency Exclusion of Proposals
In U.S. Government procurements, most solicitations specify that noncompliance with its terms and conditions may cause a proposal to be determined unacceptable or be deemed non-responsive and excluded from consideration. However, in some cases, the agency may alter the terms and conditions through pre-award discussions. In Safeguard Base Operations v. United States, the Federal Circuit considered the latitude an agency has to make such alterations ...
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In Uninteresting Result, Federal Circuit Leaves Offeror Standing Outside the Courtroom
In order to bring an action in any United States tribunal, a party must have “standing.” “The doctrine [of standing] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish constitutional standing a “plaintiff must have (1) suffered an injury in fact, (2) ...
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Federal Circuit Holds CICA Stay Clock Begins at Time of Debriefing When Disappointed Offeror does not Avail Itself of Right to Ask Additional Questions
No questions, no stay. The United States Court of Appeals for the Federal Circuit recently ruled on the interplay of debriefings and automatic stays.[1] In NIKA Technologies v. United States, the Federal Circuit reversed a Court of Federal Claims (“COFC”) decision requiring an automatic stay of contract performance pursuant to the Competition in Contract Act (“CICA”) that had been previously denied by the Government Accountability ...
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Federal Circuit Adopts Narrow Definition of “Printing” to Avoid Constitutional Separation of Powers Question
The U.S. Court of Appeals for the Federal Circuit recently reversed a bid protest decision appealed from the Court of Federal Claims after the protester raised a constitutional question. In Veterans4You LLC v. United States, the Department of Veterans Affairs (“VA”), an executive branch entity of the United State government (“USG”), sought to procure cable gun locks with information on the VA’s suicide prevention hotline ...
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To Infinity and Beyond Immediate Parties: The Fourth and Ninth Circuit Split on the Enforceability of “Infinite Arbitration Clauses”
Imagine walking into an AT&T store to sign up for a service plan and buy a new cellphone. Perhaps, you are excited to finally get your hands on the latest iPhone. At the same time your new phone is placed into one hand, a pen is placed into the other. You sign the dotted line at the bottom of the consumer service agreement. How carefully ...
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Subpoena Power of Arbitrators Over Non-Party Documents
Arbitration is a means for parties to resolve disputes in a more efficient and less costly manner than seeking recourse through the judicial system. The Federal Arbitration Act empowers the arbitrator to subpoena non-parties and their documents to an arbitration proceeding. However, there is disagreement among the courts regarding the arbitrator’s power to compel pre-hearing document production from non-parties. The federal circuits have approached this ...
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Supreme Court Extends Title VII Protections to LGBTQ Workers
On June 15, 2020, the United States Supreme Court officially declared that LGBTQ persons are protected from discharge or discipline because of sex under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The Court’s landmark decision came as somewhat of a surprise considering that the Court’s current conservative majority was expected to move in the opposite direction. The Court unequivocally ...
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“Zone of Reasonableness” Test Prerequisite Addressed by the Federal Circuit
The so-called “zone of reasonableness” standard has been long applied by federal courts and boards of contract appeals in evaluating contract interpretation when the contract is deemed ambiguous – meaning that it is susceptible to more than one reasonable interpretation. Ambiguity does not exist merely because the parties differ in their respective interpretations of the contract; rather, the parties’ interpretation must be reasonable, with that ...
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Supreme Court Of Virginia Now Requires Votes Of Two Writ Panel Members To Grant An Appeal
Recently, the Supreme Court of Virginia decided to change its practice regarding the requirements for granting a petition for appeal to create a seemingly higher threshold. A party who wishes to appeal a lower court decision to the Supreme Court of Virginia typically may not take the appeal directly before the full Supreme Court. In fact, the majority of cases never reach the stage where ...
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