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December 13, 2017
  Robert Wellman, Jr. v. Butler Area School District - Third Circuit
Headline: Concussed Student Barred From Making Claims Under the IDEA Due to Settlement Agreement with School District

Area of Law: IDEA

Issue(s) Presented: Whether a concussed student, who was denied accommodations at school, can bring a claim against the school district without exhausting all procedural measures under the IDEA?

Brief Summary: During his freshman year of high school, Robert Wellman, Jr. suffered a concussion while participating in school related sporting activities. Wellman attempted to resume his education and requested several accommodations which were denied. In a settlement agreement, Wellman and his parents released the School District and its employees from all claims related to IDEA, the Americans with Disabilities Act, or any other Federal or state statute.

Wellman later filed a complaint against the School District and the high school's principal alleging violations of the Rehabilitation Act, the ADA, and Wellman's equal protection rights. The Third Circuit vacated the District Court's dismissal without prejudice for failing to exhaust all administrative remedies under the Individuals with Disabilities Education Act (IDEA). Because the gravamen of Wellman's complaint sought denial of the IDEA's guarantee of free and appropriate education, he had to exhaust all administrative remedies under the IDEA. But Wellman's settlement agreement precluded him from making any of these claims against the School District and its employees, leaving no basis upon which relief could be granted. The Court remanded with instructions to dismiss the complaint with prejudice.

Extended Summary:

During his freshman year of high school, Robert Wellman, Jr. suffered a head injury while playing flag football in his physical education class. Later that day, Wellman participated in football practice, where he suffered additional head injuries that resulted in a concussion. Upon his return to school, his mother asked for Wellman to be taken out of his German and physical education classes and be given additional study halls. She also asked that the football coach not allow him to engage in any physical activity that would further aggravate his condition. According to Wellman's complaint, the school gave him additional study halls but required him to take make-up exams during that time. Also, his football coach made him hold a sideline marker during a football game and was hit by one of the players, resulting in another head injury. Wellman tried to return to school but the School District did not accommodate his condition. As a result of his condition, he experienced severe anxiety and was unable to return to school. Wellman's mother, his therapists and school officials met to discuss a plan for Wellman could return to school, but they could not reach an agreement. Wellman eventually enrolled in private school, from which he graduated. Subsequently, Wellman and his parents filed a due process complaint against the School District, requested a hearing, an Individualized Education Plan, compensatory education for two years and payment of Wellman's private school tuition. Wellman and his parents entered into a settlement agreement where Wellman released the School District and its employees from all claims related to IDEA, the Americans with Disabilities Act, or any other Federal or state statute.

Wellman filed a complaint against the School District and the high school's principal that alleged that they violated the Rehabilitation Act, the ADA, and Wellman's equal protection rights. The District Court dismissed the complaint without prejudice for failing to exhaust all administrative remedies under the Individuals with Disabilities Education Act (IDEA). Wellman appealed and the Third Circuit court vacated the vacated the District Court's decision and remanded to dismiss the complaint with prejudice.

The IDEA sets forth an administrative mechanism for resolving disputes concerning whether a school has complied. Whenever a party seeks relief under the IDEA, they must follow all procedures listed within the statute, even if the party relies on laws other than the IDEA. The Supreme Court, in Fry v. Napoleon Community, held that exhaustion is not necessary when the gravamen of the complaint is something other than the denial of free appropriate public education (FAPE)under the IDEA. In determining whether the gravamen of the complaint denies FAPE, the Supreme Court asks two questions - (1) could the plaintiff have brought the same claim if the alleged conduct had occurred at a public facility that was not a school and (2) could an adult at the school have made the same claim? If the answer to both questions is no, then the complaint most likely concerns a denial of FAPE. Additionally, the gravamen can be determined through the history of the proceedings. If the plaintiff had previously invoked the IDEA's formal procedures, then there is strong evidence that the claim relates to a denial of FAPE.

The Third Circuit looked to each of Wellman's claims individually and found that the gravamen of Wellman's complaint was a denial of FAPE. Since all of allegations related to an alleged failure to accommodate his condition and fulfil his education needs, the plaintiff could not have brought the same claim if the conduct had occurred somewhere other than a school. Also, Wellman's claim, that the School District's failure to provide accommodations excluded him from school, was not something that could have been brought by a nonstudent against a non-school facility. Further, the history of the proceedings show that the suit seeks relief for the denial of FAPE. Because Wellman's parents filed a due process complaint, requested a hearing, an Individualized Education Plan, and compensatory education, he attempted to pursue administrative remedies and therefore was evidence that his claim related to a denial of FAPE. The Third Circuit agreed with the District Court that Wellman did not exhaust all remedies, however, Wellman's settlement agreement precluded him from making any of these claims against the School District and its employees. Therefore, there was no basis upon which relief could be granted and the complaint was dismissed with prejudice.


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153394p.pdf

Panel: Smith, Chief Judge; Jordan, and Shwartz, Circuit Judges 

Argument Date: November 7, 2017

Date of Issued Opinion: December 12, 2017

Docket Number: No. 15-3394

Decided: Vacated

Case Alert Author: Emily Anderson

Counsel: Edward A. Olds, Esquire, Counsel for Appellants; Thomas E. Breth, Esquire, counsel for Appellees.

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 12/13/2017 12:48 PM     3rd Circuit     Comments (0)  

  John Barna v. Board of School Directors of the Panther Valley School District, et al. - Third Circuit
Headline: School Board not entitled to qualified immunity from suit

Area of Law: Constitutional Law; First Amendment; Qualified Immunity

Issue(s) Presented: Are members of a school board, who allegedly violated Plaintiff's First Amendment rights by banning him from school board meetings, protected under qualified immunity from a suit for damages under 42 U.S.C. § 1983 in their individual and official capacities?

Brief Summary: Plaintiff John Barna was banned from attending school board meetings of the Panther Valley School District by Defendants, the Board of School Directors. Barna filed a lawsuit claiming damages under 42 U.S.C. § 1983 for violations of his First Amendment rights. The district court granted summary judgment on behalf of both the Board and its members. It ruled that while their actions violated Barna's constitutional rights, both the Board and its members were protected by qualified immunity. The Third Circuit affirmed on behalf of the members as individuals, ruling that qualified immunity protected them because the potential constitutional violation was not "clearly established" by law. However, the Third Circuit vacated the judgment on behalf of the Board because the Supreme Court previously held that municipalities were not entitled to qualified immunity for damages under 42 U.S.C. § 1983. The case was remanded to the district court for further proceedings.

Extended Summary: On April 8,2010, John Barna expressed his concern at a Panther Valley School Board meeting regarding a school contract that he and his friends considered a waste of public resources. When the School Board advised Barna that his friends were welcome to address their concerns before the Board, Barna replied, "You wouldn't like that. Some of my friends have guns."

In response to Barna's comment - and other threatening and disruptive behavior by Barna at a subsequent meeting - the school district superintendent sent Barna a letter advising him that any future outbursts would result in him being banned from attending School Board meetings. For more than a year, Barna attended meetings without further issue. He was subsequently involved in a heated argument with Board members during a meeting. Barna admitted that he "blew [his] top" at the meeting. As a result, the Board sent Barna a letter banning him from attending any future meetings. The letter also advised that Barna was welcome to submit questions to the Board, which would be answered in a timely manner. While Barna never exercised this opportunity, he did request audio recordings of meetings, which he received.

Barna then filed this lawsuit against the Board and its members, in their individual and official capacities, claiming damages under 42 U.S.C. § 1983 for violation of his First Amendment right to free speech and his First and Fourteenth Amendment right to be free from unconstitutional prior restraint.

The district court granted summary judgment on behalf of the Board and its members. The court held that the actions of the Board violated Barna's constitutional rights, but that defendants enjoyed qualified immunity from claims for § 1983 damages.

On appeal, the Third Circuit recognized that individual members of the Board were protected by qualified immunity as long as the constitutional violation was not "clearly established" at the time it occurred. In order to determine if banning a citizen from attending School Board meetings was a "clearly established" violation of the First and Fourteenth Amendment, the Court first looked to Supreme Court precedent. After reviewing the applicable precedent, the Court determined that, to the extent the ban against Barna was a violation of his constitutional rights, it was not "clearly established." The Third Circuit did, however, find precedent regarding the protection of qualified immunity for the Board as a municipal entity. The Supreme Court held in Owen v. City of Independence, 445 U.S. 622 (1980), that municipalities are not entitled to qualified immunity from suit for damages under § 1983. The Third Circuit held that Owen applied to the School Board as a municipal entity. Therefore, the Board was not entitled to qualified immunity. The Third Circuit, thus, vacated summary judgment in favor of the Board as a municipal entity and remanded the case to the district court to determine the constitutionality of the ban and for further proceedings.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153904p.pdf

Panel: Chagares, Greenaway, Jr., and Restrepo, Circuit Judges

Argument Date: September 14, 2016

Date of Issued Opinion: December 7, 2017

Docket Number: No. 15-3904

Decided: Affirmed in part; vacated in part; remanded.

Case Alert Author: Michael R. DeAngelo

Counsel: Gary D. Marchalk, Esq., Jonathan P. Phillips, Esq. for Appellant; Thomas A. Specht, Esq. for Appellees

Author of Opinion: Chagares, Circuit Judge

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 12/13/2017 10:06 AM     3rd Circuit     Comments (0)  

December 7, 2017
  James Joyce v. Maersk Line LTD - Third Circuit
Headline: Union contracts freely entered by seafarers will not be reviewed unless evidence of unfairness

Area of Law: Contract; Maritime Law

Issue(s) Presented: Does the holding in Barnes extend to unearned wages set by a collective bargaining agreement?

Brief Summary:

James Joyce, a member of the Seafarers International Union, filed a class action alleging that the unearned wages portion of his collective bargaining agreement with Maersk violated maritime law. Joyce's union agreement provided that if he were medically discharged before the conclusion of his contract, he would be entitled to unearned wages for the remainder of the contract. After being discharged due to kidney stones, Joyce claimed that he was entitled to overtime pay as part of his unearned wages. Joyce relied on the holding in Barnes, which established that a seafarer's maintenance could be modified by the court regardless of the collective bargaining agreement. The District Court granted summary judgment in favor of Maersk, finding that, under the bargaining agreement, Joyce was not entitled to overtime as a matter of law. On appeal, the Third Circuit overruled its decision in Barnes v. Andover Co. The Third Circuit recognized the importance of enforcing negotiated contracts. It, thus, held that a freely entered seafarer union contract will not be dissected and reviewed by courts unless there is evidence of unfairness within the collective bargaining process.


Extended Summary:

James Joyce is a member of the Seafarers International Union. He entered into a collective bargaining agreement with Maersk Line Limited for a three-month period. During this period, Joyce fell ill with kidney stones and was declared unfit for duty. Per his bargaining agreement, Joyce was entitled to unearned wages for the remainder of his contract. The agreement only provided for base pay, not for overtime. As a result, Joyce brought a class action suit, alleging that portions of the collective bargaining agreement violated general maritime law. The District Court granted summary judgment in favor of Maersk, finding that due to the agreement, Joyce was not entitled to overtime. Joyce filed an appeal, urging that the holding in Barnes v. Andover Co. should apply to his claim.

On appeal, the Third Circuit reconsidered its holding in Barnes. In Barnes, the Court held that a maintenance rate within a contract was not binding on a union member who could show higher daily expenses. In doing so, the Court parted ways from other circuits that held that contractual rates should be binding as long as there was a fair collective bargaining process. The Third Circuit disagreed, holding that contracts should not be permitted to override common law maritime rights provided to seamen.

Joyce argued that a seafarer's right to unearned wages should be treated exactly like the right to maintenance. In addition, he argued that overtime pay is part of the common law right to unearned wages. Relying on the Court's reasoning in Barnes, Joyce argued that an unearned wage rate in a collective bargaining agreement can be set aside if determined to be insufficient. The Court agreed with Joyce's first point, finding that there is a long history that demonstrates that seafarers are entitled to unearned wages. In addition, the Court noted that a common expectation of overtime could lead to the conclusion that overtime should be included in unearned wages. The Court further agreed that if it applied Barnes, Joyce would most likely succeed on his claim. However, given the conflicting opinions of other circuits with respect to collective bargaining, the Third Circuit reconsidered its holding in Barnes.

Barnes was based on the common law protections afforded to seafarers and the idea that the law should not allow union contracts to override those maritime rights. However, labor policies and federal labor law lends itself to the required adherence to the terms of a collective bargaining agreement. Judicial intervention is not as necessary as it was in the past. On review, the Third Circuit focused on the importance of enforcing privately negotiated contractual rates because seafarers do not need as much protection as they once did. The Third Circuit ultimately overruled Barnes, holding that a freely entered seafarer union contract will not be dissected and reviewed by courts unless there is evidence of unfairness within the collective bargaining process. In addition, the Court further limited the ruling by noting that maintenance, cure, and unearned wages could not be completely abrogated by contract. The Third Circuit affirmed the judgment of the District Court.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163553p.pdf

Panel: Smith, Chief Judge; McKee, Ambro, Chagares, Jordan, Hardiman, Greenaway, Jr., Vanaskie, Shwartz, Krause, Restrepo, and Roth, Circuit Judges.

Argument Date: October 8, 2017

Date of Issued Opinion: December 4, 2017

Docket Number: No. 16-3553

Decided: Affirmed.

Case Alert Author: Kristina Flatley

Counsel: Dennis O'Bryan, Counsel for Appellant; John Walsh, Counsel for Appellee; Martin Davies, Amicus Curiae

Author of Opinion: Circuit Judge Jordan

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 12/07/2017 01:38 PM     3rd Circuit     Comments (0)  

December 5, 2017
  S. Freedman & Sons, Inc. v. National Labor Relations Board -- Fourth Circuit
He'll Be Back: Court Affirms NLRB Decision That Employer Wrongfully Terminated Union Employee

Areas of Law: Employment Law, National Labor Relations Act

Issue Presented: Whether an Administrative Law Judge properly found that the employer, S. Freedman & Sons, Inc. violated the National Labor Relations Act's prohibitions on (1) discriminating against an employee for engaging in protected activity, and (2) interfering with an employee's exercise of his rights under the Act, in its actions against the employee, Richard Saxton.

Brief Summary: Richard Saxton was an employee of S. Freedman & Sons, Inc. In 2014, Saxton was terminated, reinstated, and terminated again. Both terminations were just days before scheduled hearings on grievances Saxton had filed against the company. An Administrative Law Judge (ALJ) found the employer had violated the National Labor Relations Act (the Act) in its disciplining of Saxton. The employer petitioned for review of this decision, but the Fourth Circuit affirmed the ALJ decision, thereby denying the employer's petition for review and granting the NLRB's cross-application for enforcement.

Extended Summary: S. Freedman & Sons, Inc. is a mid-Atlantic paper supplier, and in 2014 the company had 128 employees, including 28 delivery drivers. The delivery drivers and warehouse workers had been represented by a union for 50 years, and entered into a collective bargaining agreement (CBA) in 2013. Saxton, an employee of 26 years, had served as chief union steward for 17 of those years, representing employees in collective bargaining negotiations and when they had grievances with the company.

Saxton was involved in multiple grievances with the company from 2013-2014, including a termination in 2013 for his involvement in a traffic accident in a company vehicle. On July 1, 2014, a week before a hearing to address his job performance, Saxton told a supervisor he could not come to work that day, because he needed "to get a [driver's] license." The employer thought Saxton's license expired June 27, 2014, so the company investigated to learn if Saxton had driven a company vehicle with an expired license. Saxton and his union representative met with the company president and a human resources representative on July 2. The employer stated in the court record that Saxton admitted at the meeting to driving with an expired license. Saxton refuted this, and said he explained he had lost his license on June 30, and needed to miss work on July 1 to get a duplicate. On July 2, Saxton and a union representative met with the president and a human resources representative to explain that he had renewed his license before the June 27, 2014 expiration, lost his license on June 30, and received a duplicate on July 1. The president, who was investigating whether Saxton had driven a company vehicle with an expired license, refused to look at the paperwork which confirmed the license was a duplicate. Later that day, the employer got records from the Motor Vehicle Administration that corroborated Saxton's account of events, but the president still chose to terminate Saxton on July 3.

Saxton and his union business agent participated in a grievance meeting with the employer on July 8, but the president of the company did not accept Saxton's version of events, despite the company's own investigator confirming them. In a July 17 submission to the Maryland Department of Labor, the employer wrote that its "investigation confirmed Saxton knowingly drove his company truck without a valid driver's license." However, on July 23, the company informed the union that Saxton's termination was being retroactively changed to an unpaid suspension, claiming that Saxton was not entitled to compensation for the time he was off work because he "was dishonest during the employer's investigation." The union filed grievances.

On September 29, a week before a new scheduled hearing on prior grievances, Saxton returned to the warehouse to clock out, when a supervisor asked him to drive a truck to a repair shop. Since Saxton had already worked eight-hours and was the most senior driver, he was not required to accept overtime if other junior drivers were available according to the CBA. After presenting the supervisor with a copy of the CBA and the president becoming involved, Saxton still refused. The president then told him to "punch out and don't come back tomorrow." After the union president discussed it with the company president, Saxton was told to return to work the next day by his union president. Saxton went to work every day until October 2, when the president of the company gave him a letter terminating his employment. The labor relations board then filed a complaint on Saxton's behalf, and the ALJ found the employer violated the Act by disciplining Saxton for engaging in protected activities and participating in Board proceedings.

Under the Act, an employer engages in an unfair labor practice if the employer "discharge[s] or otherwise discriminate[s] against an employee because he has filed charges or given testimony." To present a case of retaliation, the Board, on behalf of the employee, must show "(1) that the employee was engaged in protected activity, (2) that the employer was aware of the activity, and (3) that the protected activity was a substantial or motivating factor for the employer's action." Saxton's employer did not dispute the first two prongs of this test, but relied on the argument that his protected activity was not a motivating factor in the termination. The ALJ found that testimony from company representatives "lacked credibility" and the record included significant evidence that the employer had notice before termination of Saxton having timely renewed his license and the one at issue being a duplicate. Despite this evidence, the employer persisted in contending Saxton had lied long after that claim was discredited.

Also under the Act, an employer engages in an unfair labor practice if the employer "interefere[s] with, restrain[s], or coerce[s] employees in the exercise of the rights guaranteed in" the act, which cover rights to organize and collective bargaining. An employee's conduct is considered "concerted activity" if conduct is based on "a reasonable and honest belief that [the employee] is being, or has been, asked to perform a task that he is not required to perform under his collective-bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right." Saxton made a copy of the CBA available to his supervisor when refusing to take the overtime shift and the record showed there were three more junior drivers available to perform the task, one of whom eventually did.

To read the full opinion, click here.

Panel: Judges Kennan and Wynn, Judge Gibney, United States District Judge for the Eastern District of Virginia, sitting by designation.

Argument Date: 09/12/2017

Date of Issued Opinion: 11/07/2017

Docket Number: 16-2066, 16-2270

Decided: Petition for review denied, cross-application for enforcement granted by unpublished per curiam opinion.

Case Alert Author: Hannah Catt, Univ. of Maryland Carey School of Law

Counsel: Scott V. Kamins, OFFIT KURMAN, P.A., Maple Lawn, Maryland, for
Petitioner/Cross-Respondent. David A. Seid, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent/Cross-Petitioner. John R. Mooney,
MOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C., Washington, D.C., for
Intervenor. ON BRIEF: Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo,
Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Lauren P. McDermott, MOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C., Washington, D.C., for Intervenor.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/05/2017 01:05 PM     4th Circuit     Comments (0)  

  Velasquez v. Sessions -- Fourth Circuit
Family Matters: Court Denies Petition for Asylum Because Petitioner Lacks Proper Social Group Membership

Areas of Law: Immigration: Asylum and Refugee Status

Issue Presented: Whether the Board of Immigration Appeals properly denied Velasquez' petition for asylum on the ground that she did not belong to a social group that made her likely to suffer persecution if deported to Honduras.

Brief Summary: The Petitioner, Maria Suyapa Velasquez, a native of Honduras, illegally entered the United States with her minor son in 2014. She sought to stay in the United States, claiming refugee status because her child's paternal grandmother had made multiple attempts to gain custody of him in Honduras. Velasquez argued she was persecuted because of her membership in her nuclear family. The Fourth Circuit denied the petition, affirming the decision of the Board of Immigration Appeals, because Velasquez had not adequately proven that the danger created by the boy's grandmother was more than an intra-family dispute.

Extended Summary: Velasquez and her son, D.A.E.V, entered the United States unlawfully in 2014 and were detained by U.S. Customs and Border Patrol. Velasquez applied for asylum and withholding of removal, attaching D.A.E.V. as a rider on her petition. Velasquez said she fled Honduras because D.A.E.V.'s paternal grandmother, Maria Estrada had been trying to get custody of him for over ten years, through various means. Estrada asked Velasquez for custody, but when Velasquez did not give in, Estrada kidnapped him from their home when Velasquez wasn't there. Each time she did this, D.A.E.V. would find a way free and walk home. Just before Velasquez left Honduras, Estrada threatened to kill her to get custody of the boy. While Velasquez was being detained in 2014, her mother told her Velasquez's sister had been murdered in front of her by Estrada's son Oscar, D.A.E.V.'s uncle. Velasquez's mother believed this to be a case of mistaken identity, i.e., Oscar thought the sister was Velasquez.

Velasquez posited she was a refugee entitled to asylum or withholding of removal under sections 208 and 241 of the INA. Under 8 U.S.C. § 1101(a)(42)(A) a refugee "is an alien outside the country of her nationality 'who is unable or unwilling to return to, and is unable or unwilling to avail...herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The asylum-seeker bears the burden of demonstrating refugee status. Velasquez alleged she was being persecuted for her membership in a particular social group, in this instance her nuclear family.

The Immigration Judge (IJ) who initially heard the petition denied it because the conflict between Velasquez and Estrada was deemed "an intra-family custody dispute over" D.A.E.V. In support of this conclusion, the judge pointed to two facts in Velasquez's account: Her sister had been killed in front of her mother, but her mother was unharmed; Velasquez has four other children from a different father in Honduras, and they also were not harmed by Estrada or her associates. Thus, Velasquez did not satisfy the conditions for asylum, and her derivative petition on behalf of D.A.E.V. was denied. Withholding for removal requires a higher threshold of proof than asylum, so Velasquez's request for that relief was also denied. The Board of Immigration Appeals adopted the reasoning of the IJ, which created the path for Velasquez's appeal to the Fourth Circuit.

To adequately demonstrate her refugee status, Velasquez had to demonstrate the following: (1) she "ha[d] a well-founded fear of persecution"; (2) her fear ar[ose] "on account of" membership in a protected social group; and (3) the threat [was] made by an organization that the Honduran government "[was] unable or unwilling to control." The instant appeal considered only the second prong - whether Estrada targeted Velasquez because of membership in a particular social group, her nuclear family.

The Fourth Circuit has recognized that membership in a nuclear family can be a particular social group for the purposes of seeking asylum. However, while Velasquez did not have to show her nuclear family relationship was the "central" or "dominant" reason for her persecution, she did have to prove that her membership "was or will be at least one central reason for" her persecution. Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). The court clarified that "every threat that references a family member is [not] made on account of family ties." Id. at 950 n.7.

In Hernandez-Avalos, a mother was being threatened by a gang to convince her son to join. The court there found the threats by the outside party were the result of the mother's relationship and potential influence over her son.
In contrast in Velasquez' case, she testified that no one besides herself, her mother-in-law, and her brother-in-law were involved in the dispute. No one outside the family was a participant. Velasquez claimed, without proof, that Estrada and Oscar were involved with Mara Salvatrucha, or MS-13. She also suggested Estrada wanted custody of D.A.E.V. to get him to join the gang. However, the court rejected this argument because there were no facts in the record to support it. In his concurring opinion, Judge Wilkinson reiterated that accepting Velasquez' petition would set the precedent of having to accept essentially any asylum claim that rests on an intra-family dispute.

To read the full opinion, click here.

Panel: Judges Wilkinson, Traxler, and Agee.

Argument Date: 05/09/2017

Date of Issued Opinion: 07/31/2017

Docket Number: 16-1669

Decided: Petition denied by published opinion.

Case Alert Author: Hannah Catt, Univ. of Maryland Carey School of Law

Counsel: David John Kline, Alexandria, Virginia, for Petitioners. Gregory Darrell Mack, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Bridget Cambria, Jacquelyn Kline, CAMBRIA & KLINE, Reading, Pennsylvania, for Petitioners. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Agee, Judge Wilkinson filed a separate concurring opinion.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/05/2017 12:54 PM     4th Circuit     Comments (0)  

  Goodwin v. Branch Banking & Trust Company - Fourth Circuit
The Good, The Bad, & The Unconscionable: Fourth Circuit Affirms Refusal to Enforce Unconscionable Arbitration Clause

Areas of Law: Arbitration

Issue Presented: Whether an arbitration agreement with substantively and procedurally unconscionable, and thus unenforceable.

Brief Summary: Latricia Goodwin sued Branch Banking & Trust ("BB&T"). BB&T moved to compel arbitration pursuant to an arbitration agreement in the parties' Loan Agreement. The United States District Court for the Southern District of West Virginia found the parties had unequal bargaining power, Goodwin signed in a rush, and the arbitration provision was located two pages after Goodwin's signature line. Moreover, the terms of the agreement discouraged litigation and favored BB&T. Thus, the District Court found the provision to be procedurally and substantively unconscionable, and refused to enforce it. BB&T appealed. The United States Court of Appeals for the Fourth Circuit affirmed, finding no error in the lower court's ruling of unconscionability, or its decision not to sever the unconscionable terms from the arbitration provision.

Extended Summary: Latricia Goodwin filed a class action law suit against Branch Banking & Trust Company ("BB&T") alleging violations of the West Virginia Consumer Protection Act. BB&T removed the action to the United States District Court for the Southern District of West Virginia, and moved to compel arbitration pursuant to the parties' Loan Agreement. Although the standard for moving to compel arbitration was met, Goodwin argued that the arbitration clause was unenforceable because it was unconscionable.

The District Court explained that federal law favors enforcing arbitration agreements, and such agreements should be analyzed under contract law. In West Virginia, a contract is unenforceable if it is unconscionable. Consequently, the court analyzed the arbitration agreement for procedural and substantive unconscionability. To read the District Court's opinion in full, click here.

As evidence of procedural unconscionability, the District Court explained that Goodwin was an unsophisticated party contracting with a national lender. Goodwin signed in a rush, and the arbitration clause was two pages after her signature. The court found this was sufficient to render a substantively unreasonable agreement unconscionable. Looking to the agreement's substance, the District Court noted that Goodwin was subject to a one-year statute of limitations, while BB&T enjoyed a three-year statute of limitations. The agreement limited Goodwin to arbitration, while BB&T could seek relief in a variety of forums. The court also found that numerous provisions in the agreement - fee shifting, a demand for arbitrator experience in bank lending contracts, class action preclusion, and a shortened discovery period - all discouraged litigation. The court concluded that the arbitration provision's substantive terms and procedural inequities rendered it unconscionable, and thus denied BB&T's motion to compel arbitration. BB&T appealed.

On appeal, BB&T argued that the district court erred in refusing to (1) enforce the arbitration provision and (2) sever the unconscionable terms and enforce the rest of the arbitration provision. The Fourth Circuit reviewed the District Court's ruling de novo, and concluded the district court did not err in finding the arbitration provision unconscionable or refusing to sever unconscionable terms from the agreement. Thus, the Fourth Circuit affirmed the district court's ruling.

To read the Fourth Circuit opinion, click here.

Panel: Chief Judge Gregory, Judge Harris, and Senior Judge Hamilton

Argument Date: None

Date of Issued Opinion: 10/31/2017

Docket Number: No. 17-1412

Decided: Affirmed by unpublished per curiam opinion

Case Alert Author: Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: Jonathan L. Anderson, JACKSON KELLY PLLC, Charleston, West Virginia; Christopher K. Robertson, JACKSON KELLY PLLC, Martinsburg, West Virginia; John C. Lynch, Elizabeth S. Flowers, TROUTMAN SANDERS LLP, Virginia Beach, Virginia, for Appellant. Jed Nolan, HAMILTON, BURGESS, YOUNG & POLLARD, P.C., Fayetteville, West Virginia; Karla Gilbride, PUBLIC JUSTICE, P.C., Washington, D. C., for Appellee.

Author of Opinion: Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/05/2017 12:27 PM     4th Circuit     Comments (0)  

December 1, 2017
  Joan Kedra v. Richard Schroeter - Third Circuit
Headline: Complaint Plead Sufficient Facts to Support that Officer Acted with Actual Awareness of a Substantial Risk of Serious Harm When he Shot and Killed Another Officer During a Firearms Training.

Area of Law: Civil Rights - State-Created Danger

Issue(s) Presented:

Whether deliberate indifference in the substantive due process context may be satisfied using an objective test.

Whether a complaint pleaded sufficient facts to support the inference that a police officer acted with actual awareness of a substantial risk of serious harm when he pointed his gun at a trainee at close range and deliberately pulled the trigger without checking whether the gun was loaded.

Brief Summary: Corporal Richard Schroeter shot and killed State Trooper David Kedra during a routine firearms training. Kedra's mother brought a civil rights complaint alleging that Schroeter had exposed Kedra to a state created danger in violation of his Fourteenth Amendment substantive due process rights. The district court held that Schroeder was entitled to qualified immunity and dismissed the complaint. Specifically, the district court found that the complaint was inadequate because it alleged that Schroeter had objective knowledge, rather than subjective knowledge, that the gun was loaded with the bullet that killed Kedra.

The Third Circuit noted that objective knowledge was not clearly established as a liability theory for deliberate indifference at the time of the shooting. However, the Third Circuit found that the complaint was sufficient under the subjective theory. The Third Circuit concluded that the obviousness of the risk in pointing a gun at a defenseless person and pulling the trigger without undertaking any safety check reflected Schroeter's conscious disregard of a substantial risk of serious harm.


Extended Summary: In September 2014, Corporal Richard Schroeter conducted a demonstration of the features and operation of the new model of a state police-issued handgun. Schroeter, a trained firearms instructor and police officer for twenty years, was aware of several firearm safety rules for instructors including: (1) a safety check of a gun before using it for training; (2) a safety check to see whether the gun was loaded; (3) must treat all guns as if they are loaded; (4) must never point the muzzle of a gun at another person; (5) must keep his finger off of the trigger unless he verifies that the gun is unloaded before pointing it at a safe target and pulling the trigger; and (6) must open the gun to visually and physically determine that it is unloaded before pulling the trigger. Schroeter violated each of these rules when he pointed the gun at Kedra and pulled the trigger. Kedra died as a result of the shooting. Schroeter pled guilty to five counts of reckless endangerment of another person.

Kedra's mother brought a civil rights complaint alleging that Schroeter had exposed Kedra to a state-created danger in violation of his Fourteenth Amendment substantive due process rights. This amendment does not impose an obligation on the state to protect its citizen. However, the Due Process clause includes an exception that holds an official liable if his conduct exposes an individual to a state-created danger. This claim requires proof of four elements: (1) the harm caused was foreseeable and fairly direct; (2) the state official acted with a degree of culpability that shocks the conscience; (3) the state and the plaintiff had a relationship such that the plaintiff was a foreseeable victim of the defendant's acts; and (4) the official affirmatively used his authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had he never acted.

Plaintiff alleged an objective theory of liability, which means that the official should have known of the substantial risk. In order to prove a state-created danger claim, the accuser must show that the accused had a mental state of "deliberate indifference," meaning that Schroeter was actually aware that his conduct carried a substantial risk of harm. Schroeter argued that the objective theory of liability was not clearly established at the time he pulled the trigger and therefore the complaint should be dismissed under the doctrine of qualified immunity. The district court agreed with Schroeter and dismissed the complaint with prejudice.

The Third Circuit reversed and held that Plaintiff adequately pleaded a state-created danger claim. The Court noted that qualified immunity "shields government officials from civil liability for constitutional violations if 'their actions could reasonably have been thought consistent with the rights they are alleged to have violated.'" Qualified immunity attaches if (1) the facts that the plaintiff has alleged make out a violation of a constitutional right, and (2) the right at issue was "clearly established" at the time of the defendant's alleged misconduct.

The Third Circuit noted that culpability changes in three different types of situations. In a higher-pressure environment, actual intent to harm is required because there is less time to react. In situations where action is required within hours or minutes, the Court requires an actor to disregard a great risk of serious harm. In situations where an actor is not required to make a hurried judgment, such as this case, deliberate indifference will satisfy the culpability requirement. The Third Circuit noted that deliberate indifference falls somewhere in between intent and negligence. Because the right at issue must be clearly established at the time of the violation, the Third Circuit looked to the state of the law at the time of the shooting in order to determine whether deliberate indifference could be satisfied using an objective test. At the time of the shooting, the objective test was not clearly established but the subjective test was.

Next, the Third Circuit looked to whether plaintiff complaint pleaded facts that could establish a subjective theory of liability. Although plaintiff did not plead outright what Schroeter should have known, she alleged facts that supported an inference of actual, subjective knowledge of a substantial risk of lethal harm. The Third Circuit noted that a plaintiff can plead deliberate indifference by reference to circumstantial and direct evidence. Circumstantial evidence can consist of: (1) evidence that the risk was obvious or a matter of common sense; (2) evidence that the actor had particular professional training or expertise; and (3) evidence that the actor was expressly advised of the risk of harm and the procedures designed to prevent that harm and proceeded to violate these procedures. Here, the court noted several pieces of circumstantial evidence such as the obvious risk of pointing a gun at another person and pulling the trigger, Schroeter's twenty years of experience and specialized training, and Schroeter's awareness and violation of the safety rules. The Third Circuit also pointed to Schroeter's guilty plea in his criminal trial as direct evidence of Schroeter's mental state. Under Pennsylvania law, his guilty plea admitted that he recklessly engaged in conduct which placed another person in danger of death or serious bodily injury with the mental state of conscious disregard of a substantial and unjustifiable risk.

The Third Circuit concluded that the obviousness of the risk in pointing a gun at a defenseless person and pulling the trigger without undertaking any safety check reflected Schroeter's conscious disregard of a substantial risk of serious harm. Therefore, the plaintiff's complaint was sufficient under the clearly established subjective theory of deliberate indifference.

The full opinion can be found at   http://www2.ca3.uscourts.gov/opinarch/161417p.pdf

Panel: Fisher, Krause, and Melloy, Circuit Judges

Argument Date: December 5, 2016

Date of Issued Opinion: November 28, 2017

Docket Number: 16-1417

Decided: Reversed and remanded.

Case Alert Author: Emily Anderson

Counsel: Michael J. Quirk, Esquire and Gerald J. Williams, Esquire, Counsel for Appellant; Kevin R. Bradford, Esquire, Stephen R. Kovatis, Esquire and Claudia M. Tesoro, Esquire, Counsel for Appellee.

Author of Opinion: Circuit Judge Krause

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 12/01/2017 09:25 AM     3rd Circuit     Comments (0)  

November 30, 2017
  United States v. Giddins -- Fourth Circuit
Would I Lie to You? Fourth Circuit Finds Deceit by Police Made Post-Waiver Statements Inadmissible

Areas of Law: Constitutional Law, Criminal Law

Issue Presented: Whether the waiver of the appellant's Miranda rights was involuntary and the result of coercion; and if so, whether the admission of the appellant's post-waiver statements was harmless error?

Brief Summary: After a series of robberies, during September 2013, Master Giddins was convicted on one count of bank robbery and one count of conspiracy to commit bank robbery. Statements Giddins made during a custodial interrogation had been introduced at his trial. In a published opinion, the United States Court of Appeals for the Fourth Circuit found that Giddins' waiver of his Miranda rights was involuntary, and that his post-waiver statements were therefore inadmissible. Furthermore, the Fourth Circuit concluded that the error in introducing the post-waiver statements was not harmless. The Fourth Circuit reversed Giddins' conviction.

Extended Summary: During September 2013, in Baltimore, Maryland, three different banks were robbed over the course of three days. The first robbery occurred on September 25, 2013. After the robbery, the robber fled the bank and was driven away in a waiting, silver Ford Focus. Police later determined that the robber was the appellant Master Giddins, that the getaway car used was his silver Ford Focus, and that the getaway driver was his girlfriend, Czekiah Fludd. On September 26th and 27th, Fludd committed two other robberies. She was assisted by Ashley Fitz and Alexis Chandler. During the commission of both robberies, Fludd used Giddins' silver Ford Focus. After returning to the scene of the final robbery for money they had discarded, Fludd, Fitz, and Chandler were arrested and the Ford Focus was seized.

Based on statements and evidence obtained from Fitz, after her arrest, detectives of the Baltimore County Police Department (hereinafter "BCPD") applied for and obtained a warrant for Giddins' arrest. On October 4, 2013, after learning that BCPD had his vehicle, Giddins went to the BCPD's headquarters to retrieve his property. Upon arrival, Giddins was taken to an interrogation room where his interactions with officers and detectives were recorded.

During the interview, the officers: (1) locked one of the doors to the interrogation room, (2) asked about the person to whom Giddins lent his vehicle, (3) requested and then removed Giddins phone from his vicinity, and (4) informed Giddins that this was the procedure necessary for retrieving his vehicle. Several times during the interview, Giddin's asked if "[he was] in trouble." The officers replied that he was not. Later, a detective produced a Miranda waiver and told Giddins they had to read him his rights because his car was involved in a crime. Giddins again inquired if this was the procedure necessary for retrieving his vehicle and the officers again informed him these were the necessary steps. Before signing the Miranda waiver, Giddins asked a final time if he was in trouble and the officers responded that he was not. After signing the waiver, Giddins was questioned for 15 minutes about his involvement in the September 25th robbery, informed by the detectives that they believed he was the robber, and formally notified that he was under arrest for bank robbery.

Giddins was indicted by a federal grand jury in the District of Maryland. Giddins' motion to suppress his statement to police was denied and the video of Giddins' interrogation was played at trial. The jury convicted Giddins on one count of bank robbery and one count of conspiracy to commit bank robbery. Giddins appealed.

The Fourth Circuit reversed the district court's judgment, determining that Giddins' waiver of his Miranda rights was involuntary and that his post-waiver statements were therefore inadmissible. Furthermore, the Fourth Circuit concluded that the error in introducing those statements was not harmless. In finding relief was warranted, the Fourth Circuit found that: (1) Miranda's protections applied because Giddins was in the custody of the BCPD and subject to an interrogation, (2) his waiver of his rights, and subsequent statements were the result of coercion, and, thus, involuntary, and (3) the jury would not have convicted Giddins absent the error.

In order to determine whether a Miranda waiver was necessary, the court first analyzed whether Giddins was in custody and subject to interrogation. In finding that Giddins was in custody, the court asked "whether a reasonable person would have felt [he was] not at liberty to terminate the interrogation and leave." Contrary to the district court's custody conclusion, the Fourth Circuit found that Giddins was not at liberty to terminate the interrogation and leave. The court asserted that although the detectives informed Giddins he could leave, this statement was not enough to show a lack of custody.

Having found Miranda applied, the court then turned to whether Giddins' waiver and subsequent statements were the involuntary product of coercion. As to coercion, the Fourth Circuit determined that Giddins was subjected to two forms: (1) economic coercion and (2) coercion via deceit. With regard to economic coercion, Giddins successfully argued that the police engaged in economic coercion by forcing him to "choose between surrendering his Fifth Amendment rights or incurring adverse economic consequences." The court asserted that because Giddins relied on his vehicle to get to work, when the police officers bound his ability to retrieve his vehicle with the waiver of his Miranda rights, the officers unduly coerced Giddins by depriving him of an economic benefit.

Next, the court examined whether the officers engaged in unfair coercion by lying to Giddins about whether he was "in trouble." The court acknowledged that officers have no affirmative duty to "inform [a defendant] of the identity of the specific offense under investigation." However, relying on the Seventh Circuit decision in United States v. Serlin, the court found that failing to inform Giddins he was the subject of an investigation after Giddins inquired specifically whether he was "in trouble," resulted in affirmative deceit that was material to Giddins' decision to speak. The court then considered whether the coercion rose to such a level that "the defendant's will [w]as overborne or his capacity for self-determination critically impaired." The court found that Giddins was encouraged to waive his rights and that the coercive tactics used by the police met the threshold necessary to establish that Giddins' will was overborne and his capacity for self- determination critically impaired.

Finally, the court evaluated the question of harm. Relying on Arizona v. Fulminante, the court determined that a jury would not have found Giddins guilty absent the error: (1) the recorded statements made by Giddins during the interview were important to the government's case, given their reliance on the video throughout the trial; and (2) the video was used to establish the credibility of other evidence used to convict Giddins. The Fourth Circuit determined that the error not harmless, and reversed Giddins' conviction.

To read the full opinion, click here.

Panel: Judges King, Agee, and Floyd

Argument Date: 01/25/2017

Date of Issued Opinion: 06/07/2017

Docket Number: 15-4039

Decided: Reversed by published opinion.

Case Alert Author: Avatara Smith-Carrington, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Kenneth Sutherland Clark, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Debra L. Dwyer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/30/2017 03:53 PM     4th Circuit     Comments (0)  

November 27, 2017
  United States v. Palin -- Fourth Circuit
Living in a Material World: Fourth Circuit Finds Universal Health Did Not Shift Materiality Standard Applicable to Health Care Fraud

Areas of Law: Health Law, White Collar Crime

Issue Presented: Whether the trial court applied the correct standard when determining the materiality of certain misrepresentations to the accused's health care fraud scheme.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the holding of the district court that found Beth Palin and Joseph Webb guilty of health care fraud and conspiracy to engage in health care fraud. Palin owned an addiction clinic and lab. Webb assisted her in operating both facilities. The two instituted a scheme to defraud health care benefit programs. Pursuant to the scheme, the lab performed expensive weekly tests on insured patients that were not medically necessary. However, the appellants were both aware that insurers prohibit providers from submitting claims for unnecessary tests.

After being found guilty, the appellants moved for a new trial, relying in part on Universal Health Services, Inc. v. United States, 136 S. Ct. 1989 (2016). The appellants contended that Universal Health changed the materiality standard applicable to health care fraud, rendering their asserted misrepresentations immaterial. The district court denied the motions.

On review, the Fourth Circuit first acknowledged the district court had not expressly ruled on materiality. But, to the extent this omission was an error, it was harmless because no rational fact finder could conclude the misrepresentations were not material. The court also found that Universal Health did not establish a new standard of materiality for healthcare fraud. Even if it had, under Universal Health's standard, the appellants' misrepresentations were material because insurers would not have paid for medically unnecessary tests. Ultimately, the Fourth Circuit affirmed the holding of the lower court.

Extended Summary: Beth Palin owned both an addiction clinic and a lab. The facilities were operated by Palin with the assistance of Joseph Webb. The lab performed two types of urine analysis tests: a basic, inexpensive "quick cup" test, and a more expensive "analyzer" test. Doctors ordering drug testing for their patients often did not specify which test they wished for the patient to receive. Knowing that insurers do not pay for medically unnecessary tests, Palin and Webb implemented a scheme to treat insured patients differently than uninsured patients. Uninsured patients received the "quick cup" test each week and paid cash. Insured patients received both the "quick cup" and the "analyzer" test. These patients paid for the "quick cup" in cash, and the lab billed insurers for the "analyzer" test.

The district court found both Palin and Webb guilty of health care fraud and conspiracy to engage in health care fraud, in violation of 18 U.S.C. §§ 1347 and 1349. The court determined that Palin and Webb created and executed a plan that was expressly prohibited by insurers - submitting claims for medically unnecessary tests. Palin and Webb moved for a new trial relying, in part, on Universal Health Services, Inc. v. United States, 136 S. Ct. 1989 (2016), a decision issued after the guilty verdict. They argued that the materiality standard applicable to health care fraud under Universal Health rendered their asserted misrepresentations immaterial. The district court denied the motion, and Palin and Webb appealed.

In affirming the lower court, the Fourth Circuit first analyzed whether the district court erred by not expressly ruling on materiality. Since harmless error review applies and because both the government and the appellants agreed that materiality constitutes an element of health care fraud, the Fourth Circuit had to conclude beyond a reasonable doubt that the appellants' guilty verdict would have been the same absent the error. Relying on United States v. Poole, 640 F.3d 114, 120 (4th Cir. 2011), the Fourth Circuit determined that the record contained no evidence to suggest that, sans the error, insurers would have knowingly paid for the medically unnecessary "analyzer" test. Accordingly, the court concluded that even if the district court's omission was error it did not justify reversal because the error was harmless.

Next, the Fourth Circuit considered whether the materiality standard expressed in Universal Health negated the materiality of the appellants' misrepresentations and thus compelled relief. In Universal Health, the Supreme Court discussed how materiality applies with regard to the specific theory of FCA liability known as "implied false certification." With regard to that form of liability, the Court wrote, "if the government pays a particular claim despite knowing certain requirements for payment were violated, 'that is very strong evidence that those requirements are not material.'" Under this standard, the appellants argued that material misrepresentation didn't exist in their own case because the insurers regularly paid the "analyzer" test claims without knowing the type of test and frequency.

The Fourth Circuit determined that the appellants misconstrued Universal Health. First, the court doubted the appellants' implication that the Supreme Court intended to broadly "overrule" materiality standards that had previously applied in the context of criminal fraud. Second, the Fourth Circuit propounded that the Court's examination of materiality for "implied false certifications" did not extend to health care fraud. Finally, the Fourth Circuit found Palin and Webb's misrepresentations to be material even under Universal Health. The court determined that if materiality "looks to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation," as provided in Universal Health, then the appellants' misrepresentations were material because insurers would not have paid for the "analyzer" tests had they known that the tests were medically unnecessary. The Fourth Circuit similarly rejected appellants' other claims and affirmed.

To read the full opinion, click here.

Panel: Judges Motz, Duncan, and Wynn

Argument Date: 09/13/2017

Date of Issued Opinion: 10/30/2017

Docket Number: 16-4522

Decided: Affirmed by published opinion.

Case Alert Author: Avatara Smith-Carrington, Univ. of Maryland Carey School of Law

Counsel: Michael John Khouri, LAW OFFICES OF MICHAEL KHOURI, Laguna Hills, California; Nancy Combs Dickenson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellants. Janine Marie Myatt, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant Joseph D. Webb. Rick A. Mountcastle, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/27/2017 04:04 PM     4th Circuit     Comments (0)  

  Randolph v. Powercomm Construction, Inc. -- Fourth Circuit
Construction Company Convinces Fourth Circuit to Rebuild Attorney's Fee Award

Areas of Law: Employment Law

Issue Presented: Whether the district court abused its discretion by including time-barred claims in its award of attorney's fees.

Brief Summary: In an unpublished opinion, the United States Court of Appeals for the Fourth Circuit held that the district court misapplied the fee analysis framework when it failed to provide any justification for including time-barred claims in its calculation of attorney's fees.

Extended Summary: In July 2014, a group of sixty five employees sued their employer, Powercomm Construction, Inc. ("Powercomm"), in a collective action seeking $790,000 in damages, including $263,305 in overtime wages and $526,661 in liquidated damages. A year later, the U.S. District Court for the District of Maryland dismissed the claims of ten of the employees because their claims were barred by the governing statutes of limitations. In April 2016, the remaining fifty five employees settled their claims with Powercomm for $100,000, excluding attorney's fees. Shortly thereafter, the attorney for the employees filed a motion requesting $227,577 in attorney's fees. Upon reviewing the merits of the request, the district court awarded fees, but reduced the amount to $183,764. Powercomm appealed, contending that the attorney's fees were excessive because (1) ten plaintiffs had been dismissed from the case; and (2) the settlement amount was far less than the amount initially requested.

On review, the Fourth Circuit held the district court had abused its discretion. The court first laid out the three-step fee analysis framework from McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013). Under this framework, the court must first multiply the number of hours expended by a reasonable hourly rate. Second, when an attorney is successful in some claims but unsuccessful in others, the court must deduct the fees allocated to the unsuccessful claims if they are unrelated to the successful claims and do not share a "common core of facts." Third, using some discretion, the court must consider the degree of success reached in order to determine the percentage of the remaining amount to award. Steps two and three were at issue in this case.

The court first looked at the second step of the McAfee fee analysis test. While the district court did address this step, the Fourth Circuit found that the lower court erred because it did not discuss whether the unsuccessful, time-barred claims shared a common set of facts with the successful claims. Even though the Fourth Circuit did resolve that question, it made its opinion clear, stating it was "difficult to imagine how the time-barred claims of the dismissed Plaintiffs [could be] intertwined with the successful claims." On remand, the Fourth Circuit instructed the district court to properly analyze the second step by determining whether the successful and unsuccessful claims were sufficiently related.

The court also held that the district court clearly erred in applying the third step of the McAfee framework because it relied on an inaccurate number in determining whether the attorney's fee award was proportional to the degree of success reached. Specifically, the district court chose not to reduce the award because, in the court's eyes, the plaintiffs received 38% of their claimed damages. However, the Fourth Circuit pointed out that the 38% only accounted for the $100,000 settlement number in comparison to the $267,777 claim for unpaid overtime wages. The Fourth Circuit held that this calculation was improper because it did not incorporate the additional claim for liquidated damages. Had the liquidated damages been considered, the plaintiffs would have received only 13% of their demand in comparison.

Because the district court misapplied steps two and three of the fee analysis framework, the Fourth Circuit vacated the award and remanded for further consideration.

To read the full opinion, click here.

Panel: Judges Shedd, Thacker, and Floyd.

Date of Issued Opinion: 10/31/2017

Docket Number: No. 16-2370

Decided: Decided by unpublished opinion.

Case Alert Author: Jeremy Himmelstein, Univ. of Maryland Carey School of Law

Counsel: Geoffrey M. Bohn, Robert A. Battey, BOHN & BATTEY, PLC, Arlington, Virginia, for Appellants. Nicholas Woodfield, R. Scott Oswald, EMPLOYMENT LAW GROUP, PC, Washington, D.C., for Appellees.

Author of Opinion: Per Curiam Opinion

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/27/2017 03:41 PM     4th Circuit     Comments (0)  

  United States v. Thompson -- Fourth Circuit
Narrowing Johnson's Scope: Similar Risk and Kind Requirements Remain for Residual Clause of the Sentencing Guidelines

Areas of Law: Criminal Law, Statutory Interpretation, Sentencing Guidelines

Issue Presented:
Whether a prior North Carolina conviction for assault inflicting serious bodily injury permitted the district court to increase Thompson's sentence under the United States Sentencing Guidelines § 4B1.2's residual clause.

Brief Summary:
In a published opinion, the United States Court of Appeals for the Fourth Circuit analyzed whether the residual clause of the Sentencing Guidelines for designated career offenders (§ 4B1.2) authorized the United States District Court for the Eastern District of North Carolina to increase Thompson's sentence because of his prior conviction. In order for § 4B1.2 to apply, the prior conviction had to constitute a crime of violence. The Fourth Circuit found that Thompson's prior conviction was a crime of violence under the residual clause because it posed a similar degree of risk and was similar in kind to § 4B1.2's enumerated offenses.

Extended Summary: In 2015, Thompson pled guilty to possession of marijuana with intent to distribute and being a felon in possession of a firearm. Thompson had also been convicted previously of assault inflicting serious bodily injury ("AISBI"), a violation of North Carolina law. Due to this prior offense, Thompson's probation officer recommended that the district court increase Thompson's sentence pursuant to § 4B1.2's residual clause, which covers all unnamed "crimes of violence" that "involve conduct that presents a serious potential risk of potential injury" to others. The enumerated offenses in § 4B1.2 include arson, burglary of a dwelling, and use of explosives.

Thompson argued that AISBI is not a crime of violence. When the district court disagreed and sentenced him to an enhanced sentence of 120 months imprisonment and 3 years supervised release, Thompson appealed, maintaining that his prior conviction for AISBI was not a crime of violence under § 4B1.2's residual clause.

In its analysis, the Fourth Circuit noted that the Sentencing Guidelines' definition parallels the residual clause of the Armed Career Criminal Career Act ("ACCA")'s definition of "violent felony," and that courts apply the Supreme Court's ACCA residual clause analysis to § 4B1.2's residual clause. While the Supreme Court ruling in Johnson declared the ACCA's residual clause unconstitutional, the Fourth Circuit held that that decision did not change the required analysis of the residual clause of the Guidelines' provision.

In order to qualify as a crime of violence under § 4B1.2, the Fourth Circuit explained that the crime must first have the same "degree of risk" as the offenses enumerated in § 4B1.2. The Fourth Circuit relied on James v. United States, in which the Supreme Court held that attempted burglary was a violent felony under the ACCA because attempted burglary posed the same degree of risk to others as the enumerated offenses in the ACCA. Since the Court of Appeals of North Carolina stated that AISBI applies to especially violent assaults and assaults that result in severe injuries, the crime involved the same degree of risk as the enumerated offenses in § 4B1.2.

The Fourth Circuit then determined whether AISBI represented a crime "similar in kind" to the offenses enumerated in § 4B1.2. The Fourth Circuit noted that in Begay v. United States, the Supreme Court found that a prior DUI conviction did not constitute a violent felony because Congress intended to cover crimes that were similar in kind to the enumerated offenses, but did not intend to include every crime that posed a serious potential risk of harm to others. To qualify, the crime must include "purposeful, violent, and aggressive conduct." The Fourth Circuit found that AISBI was similar in kind to the enumerated offenses because every North Carolina AISBI case supported the notion that convictions for AISBI require "purposeful, violent, and aggressive conduct."

Because Thompson's prior AISBI conviction posed the similar degree of risk and was similar in kind to § 4B1.2's enumerated offenses, the Fourth Circuit affirmed his increased sentence.

To read the full opinion, click here.

Panel: Circuit Judges Motz, Wilkinson, and Diaz

Argument Date:
09/12/2017

Date of Issued Opinion: 10/26/2017

Docket Number: 15-4685

Decided: Affirmed by published opinion

Case Alert Author:
Matthew Schofield, Univ. of Maryland Carey School of Law

Counsel: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Circuit Judge Motz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/27/2017 01:31 PM     4th Circuit     Comments (0)  

  Campbell-McCormick, Inc. v. Oliver -- Fourth Circuit
Not All Opinions Are "Final Decisions" and Not All Rights Are "Important Enough": Fourth Circuit Dismisses Appeal for Want of Jurisdiction

Areas of Law: Civil Procedure, Appellate Jurisdiction

Issue Presented: Whether the appellate court had jurisdiction over a challenge to the district court's decision to sever and remand to state court certain claims filed against the defendant-appellant, if the district court retained jurisdiction over claims appellant filed against third parties in the same suit.

Brief Summary: The defendant-appellant Campbell-McCormick, Inc. ("CMC") appealed the decision of the district court to remand the plaintiff-appellee Wayne Oliver's claims to state court. As a preliminary matter, the Court of Appeals considered whether it had appellate jurisdiction to review the district court's decision. The jurisdictional questions before the court were whether the district court's remand order constituted a final decision within the meaning of 28 U.S.C. § 1291, and if not, whether the collateral order doctrine applied to establish appellate jurisdiction. In a published opinion, the United States Court of Appeals for the Fourth Circuit held that it lacked appellate jurisdiction because (1) the district court's remand order did not constitute a final decision within the meaning of 28 U.S.C. § 1291, and (2) the collateral order doctrine did not apply.

Extended Summary: Plaintiff Wayne Oliver filed a complaint in Maryland state court alleging asbestos exposure claims against multiple defendants, including Campbell-McCormick, Inc. ("CMC"). CMC filed a third-party complaint against several other entities, including General Electric Company ("GE"). GE removed the litigation into federal court in the District of Maryland, and Oliver subsequently moved to sever his claims and remand them to state court. The federal district court granted Oliver's motion to remand, but retained jurisdiction over CMC's third-party claims, which the court stayed. CMC appealed to the United States Court of Appeals for the Fourth Circuit arguing that the district court had erroneously severed and remanded Oliver's claims. The Fourth Circuit did not consider the merits of the appeal because the court determined it did not have appellate jurisdiction.

Under 28 U.S.C. § 1291, the intermediate federal appellate courts have jurisdiction over appeals from all final decisions of the district courts of the United States. Citing a recent Supreme Court decision, the Fourth Circuit noted that "a final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs, 134 S. Ct. 773, 779 (2014). The Fourth Circuit concluded that because the district court retained jurisdiction over and stayed the third-party claims, the remand order issued by the district court did not constitute a final decision under § 1291.

The Fourth Circuit next recognized that the collateral order doctrine provides an alternate source of appellate jurisdiction under § 1291. To qualify for collateral order review, an order must "[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Will v. Hallock, 546 U.S. 345, 349 (2006). The Fourth Circuit noted that the importance of the right asserted by the appellant has always been a significant part of the court's analysis, when considering the elements listed above. Examples of rights that the Supreme Court has deemed sufficiently important to merit collateral order review include: the right to avoidance of double jeopardy and the right of a public official to qualified immunity. In contrast, other rights have been deemed not sufficiently important to warrant application of the collateral order doctrine. These rights include things like a pretrial discovery order rejecting an attorney-client privilege claim. The Fourth Circuit concluded that the right asserted by CMC - the right to keep Oliver's claims in federal court - was "insufficiently important to give rise to collateral order jurisdiction," and therefore the collateral order doctrine was not satisfied. The court held it lacked jurisdiction to hear the appeal and, therefore, dismissed it.

To read the full opinion, click here.

Panel: Judges King and Thacker, and District Judge Gibney

Argument Date: 09/13/2017

Date of Issued Opinion: 10/24/2017

Docket Number: 16-1895

Decided: Appeal dismissed by published opinion.

Case Alert Author: Taylor McAuliffe, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Steven Joseph Parrott, DEHAY & ELLISTON, L.L.P., Baltimore, Maryland, for Appellant. Ian Gill Thomas, BROWN GOULD KIELY LLP, Bethesda, Maryland; David Michael Sturm, TADDEOSTURM PLC, Richmond, Virginia, for Appellees. ON BRIEF: Patrick C. Smith, John C. Ruff, DEHAY & ELLISTON, L.L.P., Baltimore, Maryland, for Appellant. Daniel A. Brown, Matthew E. Kiely, BROWN GOULD KIELY LLP, Bethesda, Maryland, for Appellees Clifford Oliver and June R. Stearns. F. Ford Loker, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellee Aurora Pump Company. Gerry H. Tostanoski, TYDINGS & ROSENBERG LLP, Baltimore, Maryland, for Appellee Atwood & Morrill Company. Malcolm S. Brisker, GOODELL, DEVRIES, LEECH & DANN, LLP, Baltimore, Maryland, for Appellees Johnson Controls, Inc. and Viking Pump, Inc. Anthony B. Taddeo, Jr., TADDEOSTURM PLC, Richmond, Virginia, for Appellee Velan Valve Corp. Michael L. Haslup, Jonathan J. Huber, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellee Ingersoll-Rand Company. Robert E. Scott, Jr., Richard J. Medoff, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellee Marotta Controls, Inc.

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/27/2017 01:18 PM     4th Circuit     Comments (0)  

  Solomon v. Bell-Rozelle NFL Player Retirement Plan -- Fourth Circuit
"Pro Football Is Like Nuclear Warfare. There Are No Winners, Only Survivors": NFL Disability Benefits Grant Must Be More than "Inactive"

Areas of Law: Employment, Disability

Issue Presented: Whether the district court erred in holding that the Bert Bell/Pete Rozelle NFL Player Retirement Plan (the "Plan") abused its discretion in denying a certain type of disability benefits to a former NFL player.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the United States District Court for the District of Maryland correctly found that the Plan abused its discretion in granting a former NFL player second-tier disability benefits. The Fourth Circuit found that the Plan failed to follow a reasoned process or explain the basis of its determination regarding the former player's application for disability, thus abusing its discretion.

Extended Summary: Jesse Solomon played in the NFL for 9 seasons before retiring in 1995. Over the court of Solomon's career he sustained more than 69,000 full-speed contact hits and suffered numerous orthopedic injuries requiring multiple operations. Solomon's injuries resulted in him experiencing symptoms of chronic traumatic encephalopathy ("CTE"), chronic knee pain, depression, and anxiety. Solomon's injuries forced him to resign from his job as a high school teacher and football coach in 2007. Due to his inability to work, Solomon sought disability benefits under the Plan.

Solomon first applied for benefits in 2009, asserting that football-related orthopedic injuries rendered him unable to work. The Plan denied Solomon's 2009 application. In 2010, Solomon again applied for disability benefits, claiming that football-related neurological and cognitive impairments rendered him unable to work. While the decision regarding Solomon's 2010 application was pending, the Social Security Administration ("SSA") granted Solomon disability benefits, finding that the onset date of Solomon's disability was October 29, 2008. Pursuant to the terms of the Plan, a determination from the Social Security Administration that a player is eligible for Social Security Disability benefits automatically entitles the player to disability benefits under the Plan.

The highest level of benefits, "Football Degenerative," apply when a player becomes totally disabled less than 15 years after the player retires. A lower tier of benefits, "Inactive" benefits, apply when a player becomes totally disabled more than 15 years after retirement. "Football Degenerative" benefits pay more per month than "Inactive" benefits. The Plan granted Solomon's application and found that he was entitled to the lower level of "Inactive" benefits

Solomon sought reclassification from "Inactive" to "Football Degenerative" because the SSA found that the onset date of his disability was less than 15 years after he retired. His request for reclassification was denied. Solomon appealed the denial of his reclassification to the United States District Court for the District of Maryland. The district court held that Solomon was entitled to "Football Degenerative" benefits for two reasons. First, according to the court, the SSA's disability-onset date bound the Plan. Alternatively, the court found Solomon was entitled to "Football Degenerative" benefits because the Board abused its discretion in making an "Inactive" determination.

On review, the Fourth Circuit agreed that the Plan abused its discretion in classifying Solomon as "Inactive." Accordingly, the court did not reach the question of whether the SSA's disability-onset date determination bound the Plan. However, the court acknowledged in a footnote that the Plan has since been amended to state that the SSA's disability-onset date determination is not binding for the purpose of Plan benefits.

Solomon's 2009 application listed only orthopedic injuries. Consequently, the Fourth Circuit found the denial of that application had no bearing on whether Solomon was disabled due to cognitive injuries as Solomon's 2010 application alleged. The court held that the Plan was required to consider the facts and rely on substantial evidence to sustain a denial of benefits. However, the court determined that the Plan had relied on no evidence and ignored multiple doctors' examinations, including from its own neutral neurologist, regarding the severity of Solomon's brain injuries. The Fourth Circuit concluded by stating that the Plan's decision to exclude evidence and deny Solomon "Football Degenerative" benefits was arbitrary.

To read the full opinion, click here.

Panel: Judges Motz, Shedd, and Duncan

Argument Date: 05/9/2017

Date of Issued Opinion: 06/23/2017

Docket Number: No. 16-1730

Decided: Decided by published opinion.

Case Alert Author: Tim Willman, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Michael Lee Junk, GROOM LAW GROUP, CHARTERED. Washington, D.C., for Appellants. Adam Ben Abelson, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, for Appellee. ON BRIEF: Cyril V. Smith, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Duncan

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/27/2017 12:42 PM     4th Circuit     Comments (0)  

  United States of America v. John Francis Ley - Third Circuit
Headline: The Issuance of a Summons Is Not Considered a Formal Arrest when Considering the Criminal History of the Sentencing Guidelines

Area of Law: Sentencing Guidelines - Criminal History

Issue Presented: Does a traffic stop with a subsequent issuance of a summons count as an intervening arrest within the context of the criminal history Guidelines?

Brief Summary: John Ley pleaded guilty in the Western District of Pennsylvania to one count of a convicted felon in possession of a firearm and ammunition. 18 U.S.C. § 922(g)(1). The U.S. Probation Office ("Probation") prepared a presentence investigation report ("Report") that would include any prior criminal history before the current charge. The Sentencing Guidelines provide a range of time appropriate for sentencing depending on multiple factors including criminal history. The Guidelines determine that the higher a category a person falls into the more time must be considered.

Ley objected to the Report's treatment of his criminal history as involving two arrests, which put him in a higher category than he should have been. The District Court overruled Ley's objection, and two days later Probation filed a supplemental addendum before the final sentencing. Probation stood by its analysis, and the District Court therefore sentenced Ley in the higher sentencing category.

Extended Summary: John Ley pleaded guilty for being a convicted felon in possession of a firearm and ammunition. Probation provided the District Court with a Report that included two prior arrests. Sentencing is based on a variety of factors that add up to determine the category of sentencing. The criminal history Guidelines provide that unless there is an intervening arrest prior sentences are counted as a single sentence if they were imposed on the same day. Ley committed two drug paraphernalia offenses, one on September 28, 2015 and the other the following day. He received a summons for both and pleaded guilty and was sentenced for both on the same day in May 2016.

Ley objected to the report's characterization of the September 2015 offenses. Ley argued they should be considered one single event because there was no intervening arrest and both were sentenced on the same day. He further asserted that due to this treatment of his criminal history his sentencing was put in a higher category subjecting him to stronger sentencing in the current case before the District Court. The District Court overruled Ley's objection, and two days later Probation filed a supplemental addendum and stood by its position in the Report. The District Court therefore sentenced Ley in the higher category.

The Third Circuit analyzed the issue of whether the term "arrest" included a traffic stop that resulted in summons to appear. First, the Circuit Court rejected the Government's argument that Ley failed to specifically object to the supplemental addendum that created a new factual matter for argument. The Circuit Court explained that Ley objected to the broader issue of how the District Court treated his criminal history in consideration of the Sentencing Guidelines. It discussed how issues are distinguished from arguments because issues are broader and can contain multiple legal arguments. Therefore, the contents of the supplemental addendum are a part of the overall legal issue and not a specific argument that Ley needed to preserve for appeal. Additionally, the Government asserted that the Magisterial District Court Docket Sheet listed September 28, 2015 as the "arrest date." The Circuit Court disagreed that the listed date concluded that Ley was actually arrested. It explained that the state could label an "arrest" and "summons" under the same label for logistical purposes and did not shed light on whether there was an actual arrest.

Second, the Circuit Court analyzed the single sentence rule. The single sentence rule states that prior sentences will always be counted separately if the sentences were separated by an intervening arrest. Further, if there are no intervening arrest prior sentences are still counted separately unless the sentences were imposed on the same day. The Circuit Court began its explanation by defining "arrest" and "summons" in plain terms. An "arrest" is commonly understood as "the taking or detainment (of a person) in custody, imprisonment;" this is distinct from a "summons," which is "a warning or citation to appear in court." The Court, thus, rejected the Government's argument that these are commonly considered to be equal. The Circuit Court believed it would be too far-reaching if every summons was considered an arrest. It further analyzed the term "arrest" in the context of federal criminal procedure. The Supreme Court held in Knowles v. Iowa, 525 U.S. 113, 117 (1998) that the issuance of a citation for a traffic stop is not equal to a custodial arrest. Furthermore, in the context of Miranda warnings a person is "in custody" when there is a restraint on freedom or movement to the same degree as a formal arrest.

Finally, it found that other sister Circuit Courts, except the Seventh Circuit, have held that the Guidelines consider an intervening arrest to be a formal arrest similar to the definition considered in criminal procedure jurisprudence. The Court examined the Seventh Circuit's reasoning for a different conclusion and found it to be unpersuasive. The Circuit Court, therefore, concluded that a traffic stop resulting in a summons is not an arrest. It held that for the purpose of criminal history in the Sentencing Guidelines an arrest must be a formal and custodial arrest. Further, the Circuit Court found that its holding was in accordance with Sentencing Guideline policies that courts should not overstate criminal history.

Ley brought two other issues for the Third Circuit Court to consider, but since the sentence was already vacated and remanded these issues were not addressed. The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163793p.pdf

Panel: Hardiman, Roth, and Fisher, Circuit Judges.

Argument Date: May 23, 2017

Date of Issued Opinion: November 22, 2017

Docket Number: No. 16-3793

Decided: Vacated and Remanded.

Case Alert Author: Nina F. del Valle

Counsel: Lisa B. Freeland, Esq., W. Penn Hackney, Esq., and Samantha L. Stern, Esq., Counsel for the Appellant; and Soo C. Song, Esq., Rebecca, R. Haywood, Esq., and Laura S. Irwin, Esq., Counsel for the Appellee.

Author of Opinion: Circuit Judge Fisher

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mark Rahdert

    Posted By: Susan DeJarnatt @ 11/27/2017 11:02 AM     3rd Circuit     Comments (0)  

November 24, 2017
  Allah v. Milling - Second Circuit
Headline: Second Circuit Rules Prison Officials Are Entitled to Qualified Immunity Despite Violating Inmate's Substantive Due Process Rights

Area of Law: Constitutional Law; Due Process

Issue(s) Presented: Whether prison officials violated an inmate's substantive due process rights by automatically placing him in solitary confinement based on his placement there during a prior term of incarceration, and, if so, whether they are nonetheless entitled to qualified immunity.

Brief Summary: As an inmate serving his sentence in the custody of the State of Connecticut Department of Correction, Allah was placed in solitary confinement after receiving an overall risk score of five. He remained there until his release. Upon return as a pretrial detainee, Allah was automatically placed in the same program. He filed a lawsuit alleging that prison officials violated his substantive due process rights. Reversing in part, the Second Circuit held that although Allah's due process rights were violated, the United States District Court for the District of Connecticut erred in holding that the prison officials are not entitled to qualified immunity.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...9d50e/1/hilite/


Extended Summary: Allah was an inmate in the custody of the State of Connecticut Department of Correction ("DOC"). Each inmate is assigned to a facility pursuant to a classification process that considers, inter alia, his or her committed offense, history of violence, and disciplinary record. Shortly after his arrival at DOC, Allah and other inmates were standing in line near a control station when they were informed that commissary visits would be delayed. Allah asked a correctional officer if he could speak to a lieutenant about this delay, a request that was perceived as an attempt to incite a protest. As a result, Allah was charged with "Impeding Order," had his overall risk score raised to five (high risk), and was placed in Administrative Segregation, a restrictive housing status that provides for closely regulated inmate management and physical separation. He was released in March of 2010 without completing the program.

In September of 2010, Allah returned to DOC custody as a pre-trial detainee and was automatically placed in Administrative Segregation pursuant to DOC's policy, which states that a returning inmate is to be automatically placed in Administrative Segregation if the inmate was discharged from DOC while on that status. During the program, Allah spent 23 hours a day alone in a cell.

Allah filed a lawsuit alleging that DOC's prison officials violated his substantive due process rights by automatically placing him in Administrative Segregation upon re-entry as a pre-trial detainee. Following a two-day bench trial, the United States District Court for the District of Connecticut ruled for Allah and rejected the defendants' claims that they are entitled to qualified immunity. The Second Circuit agreed that Allah's due process rights were violated, but nonetheless held that the prison officials are entitled to qualified immunity.

In Bell v. Wolfish, the Supreme Court held that the Due Process Clause prohibits the punishment of pre-trial detainees prior to an adjudication of guilt. To assess the constitutionality of restrictions placed on pretrial detainees, a court must determine whether the restrictions are imposed for the purpose of punishment or whether they are incident to some other legitimate government purpose, such as the security of the prison. Applying Wolfish, the Second Circuit held Allah's due process rights were violated, finding no evidence that prison officials made an individualized assessment that Allah posed a security risk warranting segregation. Instead, he was placed in Administrative Segregation based solely on his placement during his prior term of incarceration. Notably, the court held that even if the prison officials had assessed Allah's risk, his placement might still be unconstitutional, as a restriction may be punitive if it is excessively harsh.

The Second Circuit majority nonetheless held that the defendants are entitled to qualified immunity, which protects government officials from civil liability insofar as their conduct does not violate clearly established rights of which a reasonable person would have known. The Court concluded that Wolfish does not clearly establish that Allah's placement in Administrative Segregation based solely upon his prior assignment to that program would violate due process. The majority determined that the prison officials were relying on an established DOC practice and such confinement is not prohibited if imposed upon an individualized assessment that a detainee poses a threat to security. The majority further reasoned that the difference between using a prior assignment to evaluate an inmate and automatically placing one in Administrative Segregation might not be apparent to prison officials.

In a separate opinion, Judge Pooler argued that the restraints imposed on Allah were unconstitutional as a response to his minor infraction and that the prison officials should not be afforded qualified immunity.

Panel: Chief Judge Katzmann; Circuit Judges Pooler and Lynch

Argument Date:
2/28/2017

Date of Issued Opinion:
11/22/2017

Docket Number: 16-1443-pr

Decided:
Reversed

Case Alert Author: Joanna Kusio

Counsel:
John J. Morgan, Barr & Morgan, Stamford, CT, for Plaintiff-Appellee; Steven M. Barry, Assistant Attorney General, for George Jepsen, Attorney General for the State of Connecticut, Hartford, CT, for Defendants‐Appellants

Author of Opinion: Circuit Judge Lynch (majority); Circuit Judge Pooler (concurring in part and dissenting in part)

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond

    Posted By: Elyse Diamond @ 11/24/2017 09:22 AM     2nd Circuit     Comments (0)  

November 22, 2017
  Peterson v. Islamic Republic of Iran - Second Circuit
Headline: Second Circuit Remands Dismissal of Claims Against Foreign Banks for Review of Personal Jurisdiction in Case for Recovery on Judgment for Victims of Iranian-Sponsored Terrorism

Area of Law: Personal Jurisdiction

Issue(s) Presented:
Whether the trial court properly dismissed claims against non-sovereign third-party-defendant financial institutions allegedly holding assets of a foreign sovereign subject to execution?

Brief Summary: Plaintiffs-appellants are, or represent, persons who have been adjudicated in the United States District Court for the District of Columbia to be, victims of Iranian-sponsored terrorism. Plaintiffs-appellants obtained federal court judgments against the Islamic Republic of Iran ("Iran') and Iran's Ministry of Intelligence and Security ("MOIS") awarding the plaintiffs billions of dollars in compensatory damages pursuant to §§ 1605(a)(7) and 1605A of the Foreign Sovereign Immunities Act ("FSIA"). After registering their judgments with the United States District Court for the Southern District of New York, plaintiffs-appellants sought to enforce their judgments, in part, by compelling the turnover of approximately $1.68 billion in bond proceeds. Plaintiffs contended that the bond proceeds were owned by Bank Markazi ("Markazi"), Iran's central bank, and held by Clearstream Banking, S.A. ("Clearstream"), a Luxembourg bank, as cash in its correspondent account at JPMorgan Chase Bank, N.A. ("JPMorgan") in New York City.

Following oral argument, the district court declined to hold an evidentiary hearing on the dispute and found sufficient record evidence that the assets at issue were not held as cash in the United States but were recorded as a right to payment in Luxembourg. As a result of this finding, the district court dismissed JPMorgan from the lawsuit. Noting that the location of a plaintiffs' right to payment is determined by state law - in this case, New York law - the district court further found that the situs of this intangible property interest was Luxemberg, the location of the party, Clearstream, of whom performance would be required by the terms of the contract. As a result, the district court held that it lacked jurisdiction to order turnover because the asset at issue was recorded and held outside of the United States in Luxembourg, and thus was immune from execution under the FSIA.

On review as to the initial dismissing JPMorgan, the Second Circuit agreed, finding no abuse of discretion. As to whether jurisdiction existed over the right to payment located in Luxemberg, however, the Second Circuit found the district court's assumption to be reasonable but incorrect, concluding that a court sitting in New York may have authority to execute against property in another country if it has personal jurisdiction over a particular defendant. The Second Circuit reasoned that the FSIA's jurisdictional immunity applies only to a foreign state, which Clearstream is not, and the Act's grant of execution immunity seems to apply only to assets located in the United States, which the Luxembourg right to payment is not. Although the Second Circuit maintained that the FSIA provides the exclusive basis for obtaining subject matter jurisdiction over a foreign state, it nevertheless concluded that United States Supreme Court and New York Court of Appeals precedent may authorize a court sitting in New York with personal jurisdiction over a non-sovereign third party to recall to New York extraterritorial assets owned by a foreign sovereign.

Accordingly, the Second Circuit remanded to the district court to determine whether it has personal jurisdiction over Clearstream and, if it determines it does, to then determine if a barrier exists to exercising personal jurisdiction to recall to New York State the right to payment held by Clearstream in Luxembourg. Ultimately, the Second Circuit reasoned that if the asset is recalled and produced in New York, it would qualify as an asset in the United States of a foreign state and would either be afforded execution immunity or would be subject to execution-immunity exceptions.

The full opinion can be found at http://www.ca2.uscourts.gov/de...23bcc2e822d/1/hilite/.

Significance: This opinion provides a possible basis for district courts to require non-sovereign third parties to recall extraterritorial assets owned by a foreign sovereign. At least one other sister circuit has suggested the contrary conclusion, that a foreign sovereign's extraterritorial assets remain absolutely immune from execution.

Panel: Circuit Judges Pooler, Sack and Lohier

Argument Date: 06/08/2016

Argument Location: New York, New York

Date of Issued Opinion:
11/22/2017

Docket Number:
No. 15-0690

Decided: Affirmed in part, Vacated in part, and Remanded.

Case Alert Author: Marina Stinely

Counsel: Liviu Vogel (James P. Bonner, Patrick L. Rocco, and Susan M. Davies, Stone Bonner & Rocco LLP, on the brief), Salon Marrow Dyckman Newman & Broudly LLP, New York, New York, for Plaintiffs-Appellants; Donald F. Luke (Bension D. DeFunis, on the brief), Jaffe & Asher LLP, New York, New York, for Defendant-Appellee Bank Markazi, AKA Central Bank of Iran; Ugo Colella (John J. Zefutie, Jr., on the brief), Thompson Hine LLP, New York, New York, for Defendant-Appellee Banca UBAE, S.p.A.; Benjamin S. Kaminetzky (Gerald M. Moody, Jr., on the brief), Davis Polk & Wardwell LLP, New York, New York, for Defendant-Appellee Clearstream Banking, S.A.; Steven B. Feigenbaum, Levi Lubarsky Feigenbaum & Weiss LLP, New York, New York, for Defendant-Appellee JPMorgan Chase Bank, N.A.

Author of Opinion: Judge Sack

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond

Edited: 11/24/2017 at 09:24 AM by Elyse Diamond

    Posted By: Elyse Diamond @ 11/22/2017 09:59 AM     2nd Circuit     Comments (0)  

November 21, 2017
  United States v. Surratt -- Fourth Circuit
Closing the Judicial Door: Fourth Circuit Splits with Sister Circuits on Post-Commutation Sentencing Challenges

Areas of Law: Constitutional Law, Criminal Law

Issue Presented: Whether an individual who receives a commutation by the President of the United States can subsequently challenge his original sentence based on modifications to the sentencing guidelines that were passed after his commutation was granted.

Brief Summary:
In a published opinion, the United States Court of Appeals for the Fourth Circuit held that sentencing challenges to an original sentence are moot if they are registered after a presidential commutation. The Fourth Circuit determined that the commutation power belongs solely to the Executive branch of government and that once the President commuted Raymond Surrat's original sentence of life imprisonment to 200 months, the litigation process reached finality. The Fourth Circuit also stated that further appeals to reduce the sentence to match the guidelines reflected in the Fair Sentencing Act of 2010 were outside the scope of their power as a co-ordinate branch of government and the Fourth Circuit respects the separation of powers.

Extended Summary: In 2005, Raymond Surrat pled guilty to conspiracy to possess with intent to distribute more than 50 grams but less than 150 grams of crack cocaine in violation of the Controlled Substances Act, 21 U.S.C. §§ 841(b)(1). Surratt already had three prior drug convictions and two of those convictions constituted "felony drug offenses." Therefore, Surratt's sentence automatically upgraded to a mandatory minimum of life imprisonment without release. Surratt's sentence accurately reflected the then-applicable 100-to-1 powder-to-crack ratio that punished distributors of crack cocaine much more harshly than distributors of powder cocaine.

In 2010, Congress passed the Fair Sentencing Act (the Act), which reduced the ratio from 100-to-1 to 18-to-1. Congress noted that the previous ratio disproportionately punished racial minorities (Surratt is a man of color). The Act applies retroactively so Surratt could appeal his original sentence which was imposed before the Act took effect. Surratt filed successive habeas petitions seeking relief. The district court denied Surratt's 2012 petition. His second petition, however, sat in the court for years without action.

In 2017, President Obama commuted Surratt's life sentence down to 200 months. The only condition attached to Surratt's commutation involved admittance to a Residential Drug Abuse Program (RDAP). Surratt agreed and shortly after, the Fourth Circuit asked both the government and Surratt's attorneys to address whether the President's commutation mooted Surratt's pending challenge to his original sentence. The Fourth Circuit determined that Surratt's appeal was moot.

The Fourth Circuit noted that it was without power to intervene in a lawful decision by a co-ordinate branch of government. By agreeing to the President's directive, the Fourth Circuit found that Surrat now serves a presidentially-commuted sentence and not a judicially-imposed one. Because Surratt agreed to serve a reduced sentence that the executive branch deemed fitting, the Fourth Circuit held that further challenges to his original sentence are no longer within the purview of the courts. The only way the courts could readjust the commuted sentence would be if a constitutional infirmity existed in the commutation order. Since there existed no such infirmity in President Obama's commutation, Surratt could not compel the Fourth Circuit to reconsider the propriety of his original sentence. Other circuits have reassessed sentencing lengths following a presidential commutation. Indeed, Judge Wynn, citing cases from the First, Seventh, and Ninth Circuits, noted exactly this point in dissent. Nonetheless, the Fourth Circuit decided that the President's commutation should represent the finality of litigation and that separation of powers rendered Surratt's (and future appellants) challenges moot.

To read the full opinion click here

Panel: Judges Wilkinson, Motz, Wynn

Argument Date:
03/23/2016

Date of Issued Opinion: 04/21/2017

Docket Number: No. 14-6851

Decided:
Decided by published opinion.

Case Alert Author: Saikrishna Srikanth, Univ. of Maryland Carey School of Law

Counsel:
Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Michael R. Dreeben, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Steven Harris Goldblatt, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., as Court-Assigned Amicus Counsel. Erika L. Maley, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae. ON BRIEF: Ross Hall Richardson, Executive Director, Charlotte, North Carolina, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Scott A.C. Meisler, Assistant to the Solicitor General, Nina Goodman, Lena Hughes, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Anne M. Tompkins, United States Attorney, Jill Westmoreland Rose, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Ruthanne M. Deutsch, Shon Hopwood, Supervising Attorneys, Utsav Gupta, William Hornbeck, Meredith Wood, Ryan W. Cooke, Courtney A. Elgart, Elizabeth Sebesky, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Court-Assigned Amicus Counsel. Douglas A. Berman, Professor of Law, THE OHIO STATE UNIVERSITY, Columbus, Ohio; Jeffrey T. Green, Kimberly A. Leaman, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae.

Author of Opinion: Order; Judge Wilkinson, Concurring; Judge Motz, Concurring

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 04:06 PM     4th Circuit     Comments (0)  

  United States Equal Employment Opportunity Commission v. Consol Energy, Inc. -- Fourth Circuit
Butcher and the Beast: Fourth Circuit Upholds Religious Accommodation Ruling for Man Who Fears Hand-Scanners

Areas of Law: Labor & Employment Law

Issue Presented: Whether Consol Energy was required under Title VII to provide a religious accommodation for a man's religious belief that the use of a hand-scanner would imprint him with "the Mark of the Beast" when special accommodations were made for other employees with hand injuries?

Brief Summary:
Beverly Butcher, Jr. informed his employer, Consol's Robinson Run Mine in West Virginia, of his sincere religious objection to the use of biometric hand scanners. However, Consol Energy failed to make an accommodation for Butcher despite accommodating other employees for non-religious reasons. In a published opinion, the Fourth Circuit held that Butcher was entitled to protection under 42 U.S.C. §§ 2000e - 2000e-6 (2012) (Title VII), which makes it an unlawful employment practice "to discharge any individual...because of such individual's ... religion." The Fourth Circuit upheld the district court's finding, however, that Consol Energy did not owe Butcher punitive damages as there was no "malice or reckless indifference" towards Butcher.

Extended Summary: In 2012, Consol's Robinson Run Mine in West Virginia decided to implement biometric hand scanners to better track its employees' work hours. Mr. Butcher, an Evangelical Christian, had worked for the Robinson Run Mine since 1977 and had been a satisfactory employee during that time. Mr. Butcher objected to the use of hand scanners on religious grounds, as he feared he would be imprinted with the "Mark of the Beast" if he used the hand scanners. Mr. Butcher believed that those branded with "the Mark of the Beast" are identified as followers of the Antichrist, which allows the Antichrist to manipulate them.

Mr. Butcher raised this objection with his employers and provided them with a letter from his pastor attesting to his "deep dedication to the Lord Jesus Christ," as well as a letter he wrote explaining his belief in the Book of Revelation. The employer had a letter from the scanner's manufacturer offering assurances that the scanner cannot place a mark on the body of a person. The letter also explained that "the Mark of the Beast" is only placed on the right hand or forehead and Mr. Butcher could use his left hand to clock in instead. After deciding that this accommodation was unsatisfactory and after being told that failure to participate would result in his termination, Mr. Butcher felt that he had no option but to tender his resignation and take early retirement. Unbeknownst to Mr. Butcher, Consol made accommodations for people with hand injuries to enter a personnel number into a keypad attached to the system.

After the United Mine Workers of America (UMWA) declined to negotiate his issue, because religious accommodations were not included in their collective bargaining agreement with Consol, the Equal Employment Opportunity Commission brought suit against Consol. A jury found for Mr. Butcher and awarded him $150,000 in compensatory damages. The district court found Mr. Butcher was owed $436,860.74 in front and back pay and lost benefits, and issued a permanent injunction against Consol to refrain from future violations of Title VII and provide management training on religious accommodations.

The Fourth Circuit heard several issues on appeal. First, the court upheld the Title VII decision, because Mr. Butcher had shown that (1) he had a bona fide religious belief that conflicts with an employment requirement, (2) he informed his employer, and (3) he was disciplined as a result. EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (1977). Citing Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 887 (1990), the Fourth Circuit reasoned the correctness or plausibility of Butcher's religious understanding was not at issue, so long as his understanding was a sincerely-held religious belief. Once the court discounted any suggestion that Mr. Butcher misunderstood the Book of Revelation, it found the case to be straightforward. Mr. Butcher had a religious belief and Consol Energy failed to reasonably accommodate that belief by failing to give him an accommodation that was given to other employees for non-religious reasons. Further, Consol's failure to provide accommodation made the work place intolerable for Mr. Butcher. See Green v. Brennan, 136 S. Ct. 1769 (2016). Consequently, the Fourth Circuit found that Butcher was constructively discharged.

The court also upheld the jury's award of compensatory damages, and the district court's award of lost wages. In the court's view, Mr. Butcher sought to mitigate his losses by searching for work, but was unsuccessful in part because of the "rural economic climate." Further, Mr. Butcher eventually accepted a lower-paying job, which the court viewed as evidence of mitigation. The court held that Mr. Butcher's pension could not be used to offset his damages since it was a collateral source of income, not used to indemnify or offset his losses.

The court finally upheld the district court's denial of punitive damages, and determination that evidence of the UMWA negotiations were not admissible at trial. As to the damages issue, the court found Consol Energy's efforts to provide some accommodation to Butcher evidenced a lack of malice or reckless disregard for Mr. Butcher's beliefs. As to the evidentiary issue, the court found the UMWA negotiations were irrelevant to the determination of failure to make reasonable accommodations.

To read the full opinion, click here.

Panel: Niemeyer, Traxler, and Harris, Circuit Judges

Argument Date: 12/07/16

Date of Issued Opinion: 06/12/17

Docket Number: 16-1230, 16-1406

Decided: Reversed in part, vacated in part, and remanded for further proceedings by published opinion.

Case Alert Author: Jennifer Smith, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Jeffrey Alan Holmstrand, GROVE, HOLMSTRAND & DELK, PLLC, Wheeling, West Virginia, for Appellants/Cross-Appellees. Philip Matthew Kovnat, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellee/Cross-Appellant. ON BRIEF: Jeffrey A. Grove, GROVE, HOLMSTRAND & DELK, PLLC, Wheeling, West Virginia, for Appellants/Cross-Appellees. P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Elizabeth E. Theran, Office of General Counsel, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellee/Cross-Appellant.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 04:00 PM     4th Circuit     Comments (0)  

  Borzilleri v. Mosby -- Fourth Circuit
Assistant State's Attorneys are Policymakers for First Amendment Purposes

Areas of Law: Constitutional

Issue Presented: Whether firing an assistant state's attorney for political disloyalty violated the assistant state's attorney's First Amendment rights to free association and speech.

Brief Summary: Four days after taking office as Baltimore City's State's Attorney, Marilyn Mosby fired Assistant State's Attorney Keri L. Borzilleri because Borzilleri had supported Mosby's opponent during the primary election. The Fourth Circuit held that an assistant state's attorney is a policymaking position, so firing Borzilleri for political disloyalty did not violate her First Amendment right to association. Also, given the government's interest in implementing its policies through its employees, firing Borzilleri for politically disloyal speech did not violate her First Amendment right to free speech. In conclusion, the Fourth Circuit affirmed the United States District Court for the District of Maryland's ruling to dismiss Borzilleri's claims.

Extended Summary: In January 2015, Marilyn Mosby took office as Baltimore City State's Attorney. Four days later, Mosby fired Keri L. Borzilleri, who had been an assistant state's attorney ("ASA") for nine years. During the primary election, Borzilleri supported Mosby's opponent, Gregg Bernstein. Borzilleri did not have an official role in Bernstein's campaign, and she did not contribute financially. However, Borzilleri put a Bernstein sign in front of her home and hosted a gathering with Bernstein supporters.

On December 9, 2015, Borzilleri sued Mosby in the United States District Court for the District of Maryland. Borzilleri alleged Mosby fired her for supporting a political rival, in violation of Borzilleri's First Amendment rights to free speech and association; Maryland Declaration of Rights freedoms of speech and association; and under Maryland tort law. Mosby moved to dismiss all claims for failure to state a claim. The District Court granted Mosby's motion. Borzilleri appealed to the United States Court of Appeals for the Fourth Circuit.

First, the Fourth Circuit considered whether the firing violated Borzilleri's First Amendment right to free association. Looking to Supreme Court precedent, the Fourth Circuit explained there is a narrow exception to the association right, which allows policymaking government officials to be fired for their political beliefs. Whether a position is a policymaking one is defined by whether party affiliation is required to effectively perform the job. Based on this guidance, the Fourth Circuit has developed a two-part test for determining if a position is a policymaking one for First Amendment purposes. First, it considers whether the position involves decision-making on issues with room for political disagreement. Second, it examines whether the position's responsibilities resemble policymaking. The Fourth Circuit concluded that Baltimore City Assistant State's Attorneys are policymakers. It explained that ASAs make decisions subject to political disagreement about how resources are allocated toward prosecuting and investigating crimes, and negotiate plea deals. Also, Maryland state's attorneys delegate duties to ASAs, so the state's attorney may assess their confidence in the ASAs carrying out policies and goals. Borzilleri specifically made independent decisions, and she communicated policies to constituents as a Community Prosecutor. Lastly, the court noted that its sister circuits have unanimously held an ASA is a policymaking position.

Next, the court analyzed whether the firing violated Borzilleri's right to free speech. The Fourth Circuit explained that analyzing a public employee's right to free speech requires balancing the employee's interest as a citizen and the community's interest in the employee's opinion, with the government's interest in serving the public through employees. If the first two interests outweigh the third, the speech is protected. The court went on to state that if the policymaking exception applies to an employee, this balancing test generally tips in favor of the government's interest. If an employer does not violate an employee's association right by firing the employee for political disloyalty, the employer does not violate the employee's free speech right by firing the employee for speech displaying political disloyalty. Based on this logic, the court affirmed the District Court's ruling.

To read the full opinion, click here.

Panel: Judges Wilkinson, Traxler, and Agee

Argument Date: 09/14/2017

Date of Issued Opinion: 10/17/2017

Docket Number:
No. 16-1751

Decided:
Affirmed by published opinion

Case Alert Author:
Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Stacey Kamya Grigsby, BOIES, SCHILLER & FLEXNER LLP, Washington, D.C., for Appellant. Patrick Browning Hughes, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Ryan Y. Park, Washington, D.C., Nafees Syed, BOIES, SCHILLER & FLEXNER LLP, New York, New York, for Appellant. Brian E. Frosh, Attorney General of Maryland, Julia Doyle Bernhardt, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 03:53 PM     4th Circuit     Comments (0)  

  American Humanist Association v. Maryland-National Capital Park and Planning Commission -- Fourth Circuit
Size Matters: Court Declares 40-Foot World War I Cross Memorial Unconstitutional

Areas of Law:
Constitutional Law, First Amendment, Establishment Clause

Issue Presented: Whether a local government violates the Establishment Clause of the First Amendment when it displays and maintains a forty-foot tall Latin cross, which was established in memory of soldiers who died in World War I?

Brief Summary: The United States Court of Appeals for the Fourth Circuit, applying the three-pronged Lemon test, held that the monument had the "primary effect of endorsing religion and excessively entangle[d] the government in religion." In support of this, the court cited to the fact that the cross was at one of the busiest intersections in Prince George's County, Maryland, that its secular elements failed to outweigh its religious purposes, and that the government had spent thousands of dollars for its maintenance.

Extended Summary: In 1918, several Prince George's County residents began fundraising to construct a cross to memorialize 49 residents who died in World War I. In 1922, the original organizers ran out of money and so the Snyder-Farmer Post of the American Legion took over the project. The monument was completed in 1925 and a Christian prayer service was held at the dedication ceremony. The court noted that veteran's memorial services, as well as Sunday worship services have been held at the cross.

The Maryland-National Capital Park and Planning Commission ("the Commission"), a state entity, acquired the cross in 1961 because of safety concerns regarding the cross' placement in the middle of a busy intersection. Since then, around $117,000 was spent maintaining the cross. In 2008, another $100,000 was set aside for renovation of the cross.

The cross itself is a forty-foot structure with the American Legion's symbol located near the top and with an American flag nearby. Around the base of the cross are the words "valor", "endurance", "courage," and "devotion." A plaque which contains the names of the individuals who died and a quote from Woodrow Wilson is on the base of the cross but is obscured by bushes. The cross stands alone in a median at the busy intersection of Maryland Route 450 (formerly known as the National Defense Highway) and U.S. Route 1, but is part of a memorial park honoring veterans in the area.

Appellants Steven Lowe, Fred Edwords, and Bishop McNeill, all non-Christian citizens of Prince George's County brought suit under 42 U.S.C. § 1983 against the Commission for violation of the Establishment Clause, arguing that the Cross amounted to government affiliation with Christianity. The American Humanist Association sued on behalf of its members. The Fourth Circuit found the appellants had standing, since anyone who has "unwelcome direct contact with a religious display that appears to be endorsed by the state" has a sufficient injury. Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997).

The district court analyzed the claim using the Lemon test, derived from Lemon v. Kurtzman, 403 U.S. 602 (1971). It found the Park Commission had legitimate secular purposes of maintaining a highway median and commemorating veterans. Further it found the cross did not advance or inhibit religion because people use the memorial for veteran events, the cross is a commemorative symbol of World War I, there are secular war memorials around it, and the secular attributes of the cross, such as the American Legion symbol, made it clear it was not a religious symbol.

On review, the Fourth Circuit also applied the Lemon test to determine whether the cross violates the Establishment Clause's guarantee that government will "make no law respecting an establishment of religion." U.S. Const. amend. I. Under the Lemon test, a memorial (1) must have a secular purpose, (2) must not have a "principal or primary effect" that advances, inhibits or endorses religion, and (3) may not foster an "excessive entanglement between government and religion." The court held that while Breyer's concurrence in Van Orden v. Perry, 545 U.S. 677 (2005), provides guidance for the "passive" monument context, it does not overrule Lemon. Thus, while things such as the circumstances surrounding the monument's placement, the physical setting of the monument, and the length of time the monument went unchallenged may be considered, the ultimate test is the Lemon test.

As to the first prong of the Lemon test, the court held that the maintenance of highway safety and the preservation of a significant war memorial satisfied the secular purpose. In determining the second prong, the court found that the Latin cross is "exclusively a Christian symbol" and the fact that other countries have used it to memorialize World War I does not outweigh its religious significance. While this cross had a semi-secular history, the Fourth Circuit held that the sectarian elements of the cross overwhelmed the secular ones, and the immense size and prominence evoked a message of universal religion. The court focused on what a reasonable observer, who is aware of the history and context of the community and forum, would believe the cross stood for. Given the history, the court found that a reasonable observer "could not help but note that the Cross is the most prominent monument in the Park and the only one displaying a religious symbol." Finally, as to the third prong, the court found that given the spending of government funds on the cross and the size of the monument, ownership constituted excessive entanglement with religion.

The court noted that the Commission's and supporting amici's concerns, which equated this cross with the crosses in Arlington National Cemetery and other locations, were misplaced. Because Establishment Clause cases are fact intensive, the court made clear it was not making a decision as to those crosses. Further, the court noted that the Arlington crosses are much smaller and contain diverse religious symbols.

In his dissent, Chief Judge Gregory focused on the purpose of the Establishment Clause, stating that neutrality is a "touchstone" of the Establishment Clause. This neutrality should not be viewed as a devotion to the secular or as a hostility to the religious. Abingdon School Dist. v. Schempp, 374 U.S. 203, 306 (Goldberg, J. concurring). Judge Gregory focused on the patriotic nature of the American Legion and the fact that only three religious services were held at the cross, all in 1931. Judge Gregory felt the majority constructed a reasonable observer who would ignore certain elements of the memorial and reach unreasonable conclusions. He also took issue with what he viewed as the majority's focus on size, stating that no guiding principle could be gleaned from its discussion. Judge Gregory reasoned that given the context of the cross, it did not constitute an endorsement of religion or excessive entanglement.

To read the full opinion, click here.

Panel: Gregory, Chief Judge, and Wynn and Thacker, Circuit Judges

Argument Date: 12/7/16

Date of Issued Opinion: 10/18/17

Docket Number: 15-2597

Decided: Reversed and remanded by published opinion. Chief Judge Gregory concurring in part and dissenting in party.

Case Alert Author:
Jennifer Smith, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Monica Lynn Miller, AMERICAN HUMANIST ASSOCIATION, Washington, D.C., for Appellants. Christopher John DiPompeo, JONES DAY, Washington, D.C.; William Charles Dickerson, MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellees. ON BRIEF: David A. Niose, AMERICAN HUMANIST ASSOCIATION, Washington, D.C.; Daniel P. Doty, LAW OFFICE OF DANIEL P. DOTY, P.A., Baltimore, Maryland, for Appellants. Adrian R. Gardner, Tracey A. Harvin, Elizabeth L. Adams, MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellee Maryland-National Capital Park and Planning Commission; Noel J. Francisco, JONES DAY, Washington, D.C.; Roger L. Byron, Kenneth A. Klukowski, FIRST LIBERTY, Plano, Texas, for Appellees The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131. Patrick C. Elliott, FREEDOM FROM RELIGION FOUNDATION, Madison, Wisconsin, for Amici Freedom From Religion Foundation and Center For Inquiry. Eric C. Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C.; Paul J. Zidlicky, SIDLEY AUSTIN LLP, Washington, D.C., for Amicus The Becket Fund for Religious Liberty. Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr., Haley N. Proctor, COOPER & KIRK, PLLC, Washington, D.C., for Amici Senator Joe Manchin and Representatives Doug Collins, Vicky Hartzler, Jody Hice, Evan Jenkins, Jim Jordan, Mark Meadows, and Alex Mooney. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Steve 3 Marshall, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas, for Amicus State of Arkansas; Pamela Jo Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Christopher M. Carr, Attorney General of Georgia, Atlanta, Georgia, for Amicus State of Georgia; Douglas S. Chin, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Curtis Hill, Attorney General of Indiana, Indianapolis, Indiana, for Amicus State of Indiana; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; Andy Beshear, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus State of Kentucky; Jeff Landry, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Adam Paul Laxalt, Attorney General of Nevada, Carson City, Nevada, for Amicus State of Nevada; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; Michael DeWine, Attorney General of Ohio, Columbus, Ohio, for Amicus State of Ohio; E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Peter F. Kilmartin, Attorney General of Rhode Island, Providence, Rhode Island, for Amicus State of Rhode Island; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Marty J. Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia, for Amicus Commonwealth of Virginia; Brad D. Schimel, Attorney General of Wisconsin, Madison, Wisconsin, for Amicus State of Wisconsin.

Author of Opinion: Judge Thacker

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 03:43 PM     4th Circuit     Comments (0)  

  Lucero v. Early -- Fourth Circuit
The Greatest Case on Earth: Lower Court Must Reconsider Circus Protestor's First Amendment Claim

Areas of Law: Constitutional Law

Issue Presented: Whether the district court erred in holding that recent precedent commanded dismissal of a circus protestor's First Amendment claim.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the district court improperly dismissed the case without considering whether the city's protesting protocol was targeted specifically to restrict animal-rights protests.

Extended Summary: Throughout its 146 years in operation, the Ringling Brothers Circus made many stops at Baltimore's Royal Farms Arena. But, the circus' treatment of animals brought many protestors out. In 2004, the Baltimore City Law Department drafted a protocol, setting out rules for where protestors could stand. The Law Department's internal emails referred to "Circus Protestors" rather than all protestors generally. In addition to laying out the prohibited protest areas, the protocol warned individuals that they would be arrested after disobeying two verbal warnings from police officers.

Before one of the circus' performances in April 2010, Kenneth Lucero handed out anti-circus leaflets to passersby. Lucero disregarded the protocol because he believed it relegated him to a low-traffic area. Officer Wayne Early asked Lucero twice to adhere to the protocol and move his protest activity to one of the permitted areas, but Lucero refused. Lucero was then arrested, but was not formally charged. Shortly thereafter, Lucero brought a 42 U.S.C. § 1983 claim against the police department, the mayor, and Early in the U.S. District Court for the District of Maryland. Lucero alleged that the protocol violated the First Amendment, because it hindered his ability to hand out leaflets and spread his message. The district court dismissed the case pursuant to the Fourth Circuit's recent decision in Ross v. Early, 746 F.3d 546 (4th Cir. 2014), a case with nearly identical facts involving the same arresting police officer.

The Fourth Circuit held that the district court erred in dismissing Lucero's case because it failed to analyze whether the City protocol was content-neutral. The case was remanded for the court to determine if the protocol was targeted at animal-rights protestors, or generally aimed at all protestors regardless of their message.

The court first laid out the differing types of judicial review that govern claims brought under the First Amendment. Strict scrutiny (sometimes referred to as "heightened scrutiny") controls content-based procedures, where a protocol restricts specific types of activity, such as protestors handing out animal-rights leaflets. It is nearly impossible for a protocol to pass muster under strict scrutiny review. In contrast, intermediate scrutiny governs content-neutral regulations. A rule is content-neutral if it regulates all protestors, without reference to the particular issue they are protesting. Early contended the protocol at issue in the instant case was content-neutral.

In analyzing the merits of the appeal, the court distinguished the case from Ross, where the parties agreed to a stipulation, stating "that the Protocol was 'generally applicable toward all expressive activity' and 'not targeted toward restricting activities of circus and animal welfare street protestors specifically.'" Because the court in Ross never actually decided whether the protocol was content-neutral and since the parties in the instant case had not agreed to a similar stipulation, the Ross decision was not controlling.

The court stated that on remand, the district court should consider two recent Supreme Court decisions in determining whether the protocol was content-neutral: McCullen v. Coakley, 134 S. Ct. 2518 (2014) and Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Specifically, the Court in Reed held that a law or protocol is content-based if, "on its face [it] draws distinctions based on the message a speaker conveys." Reed's implication was that the circus protocol could be content-based even if it was not specifically designed to impede individuals protesting animal-rights. Based on these two cases, the Fourth Circuit instructed the district court to analyze facts such as whether officers were required to examine the content of the leaflets before enforcing the protocol, and also the reasoning behind the initial development of the protocol.

To read the full opinion, click here.

Panel: Judges Thacker, Harris, and Moon sitting by designation.

Argument Date: 09/12/2017

Date of Issued Opinion: 10/13/2017

Docket Number: No. 16-1767

Decided: Decided by published opinion.

Case Alert Author: Jeremy Himmelstein, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Sean Robert Day, LAW OFFICE OF SEAN R. DAY, Greenbelt, Maryland, for Appellant. Steven John Potter, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. ON BRIEF: David E. Ralph, City Solicitor, Glenn T. Marrow, Chief Solicitor, Kara Lynch, Assistant City Solicitor, Ashley McFarland, Assistant City Solicitor, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, 2 Maryland, for Appellees.

Author of Opinion: Judge Thacker

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 03:25 PM     4th Circuit     Comments (0)  

  United States v. Diaz -- Fourth Circuit
"Crime of Violence" Must be a Violent Crime to Trigger Mandatory Restitution

Areas of Law: Statutory Interpretation, Criminal Law

Issue Presented: Whether the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, is disjunctive, such that satisfying one of the two requirements under the MVRA would bring an offense that presumptively falls under the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. § 3663, instead within the scope of the MVRA.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the district court erred in interpreting the MVRA as disjunctive. The Fourth Circuit determined that because interference with flight crew members and attendants is not a "crime of violence" under 18 U.S.C. § 16, the more lenient provisions of the VWPA apply, and restitution is discretionary.

Extended Summary: The MVRA and the VWPA govern restitution for federal criminal offenses. Under the VWPA, the district court has discretion in imposing restitution. 18 U.S.C. § 3663(a)(1)(A). The VWPA applies when sentencing a defendant convicted of an offense under section 49 U.S.C. § 46504, unless the offense falls under section 3663A(c) of the MVRA. In contrast, the MVRA requires mandatory restitution. The MVRA applies when a defendant is convicted of any offense "(A) that is (i) a crime of violence, as defined in section 16 [of title 18] . . . and (B) in which an identifiable victim or victims has suffered a physical injury or pecuniary loss." 18 U.S.C. § 3663A(c)(1).

Appellant David Diaz rushed the cockpit of a flight shortly after takeoff. Diaz was convicted under 49 U.S.C. § 46504 of interference with flight crew members and attendants. The government argued that this offense fell within the scope of the MVRA, and that therefore, Diaz was required to pay the full amount of restitution. Additionally, the government argued that the court did not need to reach the question of whether this offense was a "crime of violence" because the MVRA applies to any offense in which an identifiable victim has suffered a pecuniary loss. Diaz argued that his offense instead fell within the scope of the VWPA and that the district court had discretion in determining whether to impose restitution. The district court agreed with the government and ordered Diaz to pay the full amount of restitution. The Fourth Circuit held that the district court erred in interpreting the MVRA as disjunctive.

On appeal, the Fourth Circuit first clarified that "the MVRA may apply in determining restitution for a defendant who interferes with a flight crew in violation of 49 U.S.C. § 46504, but only if it is determined that flight crew interference falls within the scope of 18 U.S.C. § 3663A(c)." 18 U.S.C. § 3663A(c)(1) provides in relevant part: "This section shall apply in all sentencing proceedings for convictions of . . . any offense that is a crime of violence . . . as defined in section 16 . . . and in which an identifiable victim or victims has suffered a physical injury or pecuniary loss."

The Fourth Circuit analyzed the relevant statutory provisions. First, the court determined that the statute should be interpreted as conjunctive, meaning that for an offense to fall within the MVRA, the offense must satisfy § 3663A(c)(1)(A), that the offense is a crime of violence, and also § 3663A(c)(1)(B), that the offense has an identifiable victim who suffered physical injury or a pecuniary loss. While the Fourth Circuit had not previously addressed this issue, in the instant case it adopted the conclusion of the D.C. Circuit, that the MVRA is conjunctive, not disjunctive.

Next, the Fourth Circuit determined that violation of 49 U.S.C. § 46504 is not a crime of violence, and therefore cannot satisfy 18 U.S.C. § 3663A(c)(1)(A). The court explained that an offense is a crime of violence under the MVRA if it is: "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The Supreme Court has previously interpreted "physical force" under 18 U.S.C. § 16(a) to mean "violent force." Johnson v. United States, 559 U.S. 133, 140 (2010). Employing a categorical approach that looked to the statutory definitions and elements and not to the specific facts, the Fourth Circuit determined that the term "assault," as used in the flight crew interference offense, required only "a forcible touching." There was no evidence it needed to rise to the level of "violent force" contemplated by the Supreme Court in Johnson. Therefore, the court found that flight crew interference, under 49 U.S.C. § 46504, is not a crime of violence under 18 U.S.C. § 16(a), and that the VWPA, instead of the MVRA, should have been applied to determine restitution. Accordingly, the Fourth Circuit vacated the order of restitution and remanded for redetermination of the issue of restitution.

To read the full opinion, click here.

Panel: Judges Floyd and Harris, and District Judge Bailey

Argument Date: 03/24/2017

Date of Issued Opinion: 07/26/2017

Docket Number: 16-4226

Decided: Vacated and remanded by published opinion.

Case Alert Author: Taylor McAuliffe, Univ. of Maryland Carey School of Law

Counsel:
Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jon Tyler McGaughey, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Brooke S. Rupert, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge Floyd

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 02:50 PM     4th Circuit     Comments (0)  

  DiBiase v. SPX Corp. -- Fourth Circuit
Court Affirms Status Quo for Healthcare Benefits Case

Areas of Law: Employee Benefits Law

Issues Presented: (1) Whether the motion for preliminary injunction was moot. (2) Whether the district court abused its discretion in denying the Plaintiffs' motion for a preliminary injunction?

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the motion for preliminary injunction was not moot; but concluded further that the district court did not abuse its discretion in denying the motion since the Plaintiffs failed to meet the requirements for a preliminary injunction.

Extended Summary: In November 2014, the individual plaintiffs, retirees of SPX Corporation ("SPX"), their spouses and eligible dependents, and their labor union, the International Union United Automobile, Aerospace and Agricultural Implement Workers of America, UAW ("UAW"), (collectively, "Plaintiffs"), filed a class action law suit against SPX. They alleged that the healthcare reimbursement account ("HRA") accounts offered by SPX were not "substantially equivalent" to their current healthcare benefits, and that the implementation of SPX's new arrangement would breach two court-approved settlement agreements in violation of Section 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185, and Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B).

The settlement agreements between the Plaintiffs and SPX required SPX to provide lifetime healthcare coverage to identified retirees and their eligible family members through (a) specified group health insurance plans, or (b) through "coverage which is substantially equivalent in benefits." The Plaintiffs signed this agreement in 2003, and SPX provided them with insurance coverage for the retirees and their family members through various group health plans between 2004 and 2015. However, in mid-2014, SPX announced to UAW representatives and Medicare-eligible retirees its plan to terminate and replace the original arrangement effective January 1, 2015. The new arrangement would provide each beneficiary an HRA containing up to $5,000 for beneficiaries to purchase their own healthcare plan from an insurance exchange secured and identified by SPX, as well as the means to cover other expenditures.

Subsequently, the Plaintiffs filed a class action suit against SPX alleging a violation of the settlement agreements because the healthcare reimbursement account ("HRA") accounts offered by SPX were not "substantially equivalent" to their current healthcare benefits. Additionally, on December 15, 2014, the Plaintiffs moved for a preliminary injunction to enjoin SPX from terminating their current SPX plan provided under the settlement agreements and from implementing the HRA accounts during the pendency of the action or until the court ordered it. On September 29, 2015, the district court denied the Plaintiffs' motion, concluding that the issue was moot since the HRAs had already gone into effect. The court also held that Plaintiffs failed to meet the four standards required to grant a preliminary injunction.

On review, the Fourth Circuit held that the motion for preliminary injunction was not moot. However, the Fourth Circuit affirmed the district court's denial of the motion because the Plaintiffs failed to meet the requirements for a preliminary injunction.

The court first analyzed the issue of mootness. The court stated that the primary function of a preliminary injunction is to maintain the status quo and that a request for an injunction to prohibit an act is moot if the act already happened. However, relying on Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013) and Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 378 (4th Cir. 2012), the court found that the motion for preliminary injunction was not moot because the Plaintiffs filed the motion before the policy change occurred, and subsequently intended to restore the status quo.

Nevertheless, the Fourth Circuit found that the Plaintiffs failed to establish the four criteria necessary to grant a preliminary injunction. In order to succeed, the Plaintiffs needed to prove that (1) they were likely to succeed on the merits of the underlying healthcare coverage dispute; (2) they were likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tipped in their favor; and (4) an injunction was in the public interest. Among other things, the court found the Plaintiffs failed to make a case that would demonstrate the likelihood of success on the merits. Therefore, the Fourth Circuit affirmed the district court's denial of the motion for preliminary injunction and remanded for further proceedings.

To read the full opinion, click here.


Panel: Chief Judge Gregory, and Circuit Judges King and Keenan

Argument Date: 05/09/2017

Date of Issued Opinion: 09/28/2017

Docket Number: 15-2340

Decided: Affirmed and remand for further proceedings by published opinion.

Case Alert Author: Nneka Adibe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Narendra K. Ghosh, PATTERSON HARKAVY LLP, Chapel Hill, North Carolina, for Appellants. Mark A. Hiller, ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for Appellee. ON BRIEF: Michael L. Fayette, PINSKY, SMITH, FAYETTE & KENNEDY, LLP, Grand Rapids, Michigan, for Appellants. David C. Wright, III, Cary B. Davis, Amanda R. Pickens, ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for Appellee.

Author of Opinion:
Chief Judge Gregory

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 02:43 PM     4th Circuit     Comments (0)  

  Fawzy v. Wauquiez Boats -- Fourth Circuit
Amended Complaint Sinks Appeal in Maritime Law Dispute

Areas of Law: Civil Procedure

Issue Presented: Whether the district court's order dismissing Fawzy's original complaint was a final decision where Fawzy amended his complaint one hour before the court issued its order.

Brief Summary: Fawzy filed suit against the boat dealer that sold him a million-dollar yacht. Without specifically notifying the judge assigned to the case, Fawzy then filed an amended complaint with the clerk's office. An hour after the amended complaint was filed the district court, unaware of the amendment, dismissed Fawzy's original complaint. Fawzy appealed this dismissal. The Fourth Circuit held that because the district court never issued a final decision on the amended complaint, the Fourth Circuit lacked appellate jurisdiction.

Extended Summary: In 2011, Dr. Amr Fawzy bought a $1.13 million boat from Wauquiez Boats in France. While sailing home across the Atlantic, Fawzy began to experience difficulties operating the vessel, including problems with the main sail and foresail. Fawzy experienced these problems for several years despite his efforts to have Wauquiez Boats resolve them.

On October 6, 2016, Fawzy filed a complaint in the United States District Court for the District of Maryland, alleging a breach of maritime contract and for products liability under general maritime law. Wauquiez Boats filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1), claiming Fawzy lacked maritime jurisdiction. On October 12, 2016, the district court held a hearing on the motion to dismiss, and on October 14, the court dismissed the case and directed the clerk to "close the case."

Unbeknownst to the court, Fawzy amended his complaint pursuant to Fed. R. Civ. P. 15 one hour before the district court issued its order dismissing his original complaint. In the amended complaint, Fawzy added several new causes of action and eight paragraphs of new facts. Fawzy never alerted the court to this amended complaint, but he appealed the district court's order dismissing his original complaint.

The Fourth Circuit dismissed Fawzy's appeal because the court did not have appellate jurisdiction under 28 U.S.C. § 1291. The court first considered whether Fawzy had subject matter jurisdiction under § 1291, which confers appellate jurisdiction over all appeals from final decisions of United States district courts. To constitute a final decision, the decision must end the litigation on the merits and leave nothing for the court to do but execute the judgment. The Fourth Circuit explained that Fawzy's amended complaint superseded his original complaint and rendered it ineffective because it complied with Federal Rule of Civil Procedure 15. Thus, the district court ruled on a "moot" complaint and could not have issued a final decision since it never addressed the amended complaint. Because the district court never issued a final decision, the Fourth Circuit dismissed the case for lack of appellate jurisdiction.

To read the full opinion, click here.

Panel: Circuit Judges Niemeyer, King and Harris

Argument Date: 09/15/2017

Date of Issued Opinion: 10/12/2017

Docket Number: 16-2311

Decided: Dismissed by published opinion

Case Alert Author: Matthew Schofield, Univ. of Maryland Carey School of Law

Counsel: Alexander McKenzie Giles, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellant/Cross-Appellee. C. Edward Hartman, III, HARTMAN & EGELI, LLP, Annapolis, Maryland, for Appellee/Cross-Appellant. ON BRIEF: Imran O. Shaukat, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellant/Cross-Appellee. John R. Griffin, HARTMAN & EGELI, LLP, Annapolis, Maryland, for Appellee/Cross-Appellant.

Author of Opinion: Circuit Judge Niemeyer

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 02:22 PM     4th Circuit     Comments (0)  

November 17, 2017
  Spay v. CVS Caremark Corporation - Third Circuit
Headline: Use of Dummy Prescriber IDs Found Immaterial in Claim against CVS Caremark Corporation for Violation of False Claims Act

Area of Law: Civil

Issue(s) Presented: (1) Did the District Court erroneously grant Defendant CVS Caremark Corporation's motion for summary judgment where the District Court relied on the government knowledge inference doctrine in dismissing Plaintiff's claim?

Brief Summary: From 2006 to 2007, Defendant CVS Caremark Corporation submitted approximately 4,500 Prescription Drug Event records to Centers for Medicare and Medicaid Services ("CMS") using dummy Prescriber IDs. Spay filed suit against Caremark, claiming that Caremark violated the False Claims Act ("FCA") by submitting false information to CMS. The District Court granted Caremark's motion for summary judgment, primarily relying on the "government knowledge inference" doctrine. The District Court found that CMS knew about the dummy IDs but paid them anyway. On appeal, the Third Circuit adopted the government knowledge inference doctrine that had been developed in other Circuits and applied a two-part test to determine whether the government knowledge inference doctrine was appropriate. The Third Circuit determined that under this test the government knowledge inference did not apply, but it affirmed the District Court's decision on other grounds. In reaching its decision, the Court addressed whether materiality was a required element for Spay's claim under the False Claims Act. Ultimately, the Court concluded that it was, and that Caremark's submission of dummy Prescriber IDs was not material to the government's decision to pay the claims substantiated by the PDE records. Therefore, despite the fact that the government knowledge inference doctrine did not apply, summary judgment in the Defendant's favor was proper.


Extended Summary:

Processing payment for claims made under Medicare Part D involves two steps: (1) the pharmacy claim, which the pharmacy submits to its Pharmacy Benefit Manager ("PBM"); and (2) the Prescription Drug Event ("PDE") record, which the Sponsor submits to Centers for Medicare and Medicaid Services ("CMS"), a governmental entity. Each year, Sponsors submit PDE records to CMS during a reconciliation process, seeking to recover the difference between the Sponsor's actual costs during the year and any amount it already received from CMS. Defendant CVS Caremark Corporation ("Caremark") was one of the largest PBMs in the United States from 2006 to 2007. During that time, Caremark submitted approximately 4,500 Prescription Drug Event records to CMS on behalf of its Sponsors. Spay filed suit against Caremark, claiming that Caremark violated the False Claims Act ("FCA") by submitting false information to CMS, which resulted in CMS paying the Sponsors more than they were actually entitled to receive.

Spay's main argument involved the submission of "dummy" Prescriber ID numbers. A Prescriber ID is a number issued to each individual with prescribing authority. If a PDE record was submitted without a Prescriber ID number, the electronic system CMS used to process payment would automatically reject the PDE, preventing payment to the dispensing pharmacy for the corresponding prescription. In an effort to reduce the number of legitimate claims that were bounced out due to the lack of a Prescriber ID, Caremark created a dummy Prescriber ID which it used to submit PDE records to CMS for payment. In total, Caremark generated about 4,500 PDE records using 56 different dummy Prescriber IDs. Spay filed his lawsuit against Caremark based on six issues, including the use of dummy Prescriber IDs. Spay claimed that Caremark used dummy IDs on a large number of its PDE record submissions, while falsely certifying the accuracy of the records.

The District Court granted Caremark's motion for summary judgment, primarily relying on the "government knowledge inference" doctrine. The "government knowledge inference" doctrine states, "when the government knows and approves of facts underlying an allegedly false claim prior to presentment, an inference arises that the claim was not knowingly submitted, regardless of whether the claim itself is actually false." The District Court found that (1) CMS knew about the dummy IDs; (2) paid all of the claims using dummy IDs anyway; and (3) never sought repayment from Caremark.

On appeal, the Third Circuit addressed the applicability of the government knowledge inference doctrine. Initially it held that the doctrine, which had been developed in other Circuits, should be followed in the Third Circuit as well. The Third Circuit stated that the doctrine is used to distinguish between the submission of false claims, and the knowing submission of false claims. In order to achieve that purpose, the Third Circuit applied a two-part test to determine whether the government knowledge inference doctrine was appropriate. The test requires that: "(1) the government agency knew about the alleged false statement(s); and (2) the defendant knew the government knew." Applying the test to the issue before it, the Third Circuit determined that the government knowledge inference did not apply on the record before it. Although there was sufficient evidence to suggest that CMS knew Caremark had submitted PDE records with dummy Prescriber IDs, there was insufficient evidence to suggest that Caremark knew that CMS was aware of the issue. "Our review of the record shows that there is no evidence of the kind of cooperation and collaborative problem-solving that exists in the easy case where the government knowledge inference is invoked."

The Court, however, went on to address whether materiality is a required element of the False Claims Act. While this case was on appeal, the Supreme Court decided Universal Health Services Inc. v. Escobar, which made materiality an element of a FCA violation. Spay argued that the holding applied only to the post-2009 version of the FCA, and that Caremark's conduct took place prior to the enactment of the 2009 amendments under consideration in Universal Health. The Third Circuit concluded that the pre-2009 version of the FCA contained a materiality requirement and applied it to the present case. Ultimately, the Court concluded that the submission of dummy Prescriber IDs was not material to the government's decision to pay the claims substantiated by the PDE records. According to the Third Circuit, the evidence suggested that CMS knew about the use of dummy IDs, but paid the PBMs anyway. "CMS was concerned with making sure that the medications were dispensed to Medicare recipients and that pharmacies were paid for those prescriptions. Had the payments stopped, the prescriptions would not have been dispensed, and the pharmaceutical needs of Medicare recipients would not have been addressed." The Court held that the dummy IDs were thus immaterial to the government's decision to pay, as they were merely "minor or insubstantial" misstatements used to prevent legitimate claims from being rejected by the CMS electronic processing system. Therefore, although the government knowledge inference doctrine did not apply to the facts of this case, summary judgment was proper.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153548p.pdf

Panel: Smith, Chief Judge, McKee, and Restrepo, Circuit Judges

Argument Date: November 10, 2016

Date of Issued Opinion: November 16, 2017

Docket Number: No. 15-3548

Decided: Affirmed.

Case Alert Author: Stephen P. Dodd

Counsel: Ian P. Samson, Esquire, Marc S. Raspanti, Esquire, Counsel for Appellant; Enu Mainigi, Esquire, Joy P. Clairmont, Esquire, Jeffrey F. Keller, Esquire, Gordon Schnell, Esquire, Claire M. Sylvia, Esquire, Counsel for Appellee.

Author of Opinion:
Circuit Judge McKee

Circuit: Third Circuit

Case Alert Circuit Supervisor:
Prof. Mark Rahdert

    Posted By: Susan DeJarnatt @ 11/17/2017 05:39 PM     3rd Circuit     Comments (0)  

November 15, 2017
  Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP
Headline: Second Circuit Reinstates Suit Against Law Firm for Violating the Fair Debt Collection Practices Act

Area of Law: Civil Procedure - Enforcement of Judgment

Issue Presented: Whether Defendants committed abusive debt collection practices after filing an objection to Plaintiff's exemption claim even after Defendants had access to Plaintiff's bank account statements.

Brief Summary: Franklin Arias's bank account was restrained after a default judgment was entered against him for failing to pay rent on his apartment. Gutman, Mintz, Baker & Sonnenfeldt LPP ("GMBS") was the law firm to represent Arias's landlord and subsequently took on the role of debt collector. In an attempt to collect the default judgment, GMBS issued a restraining notice on Bank of America, where Arias had a checking account. Arias responded by claiming that all of the money in his account was Social Security Retirement Income (SSRI), which is exempt from restraint and garnishment under federal law. He repeatedly informed GMBS about this, and provided supporting documentation, but GMBS stated that his only recourse would be to go to court. In the subsequent court proceeding, Arias represented himself and presented the same documents that he had previously sent to GMBS, at which point GMBS agreed to release the funds. Arias then sued GMBS in the United States District Court for the Southern District of New York, alleging that GMBS's tactics had violated several laws, including the Fair Debt Collection Practices Act (FDCPA). The district court dismissed his lawsuit, but the Second Circuit held that his case could go forward.

Extended Summary: In 2006, Arias rented a Bronx apartment owned by 1700 Inc. During that same year, Arias moved out and allowed his daughter to take over the lease in his absence. Arias's daughter, however, missed two months of rent and soon after 1700 Inc. retained GMBS to sue Arias for breaching his lease. Because Arias failed to file an answer, GMBS obtained a default judgment against him.

In December 2014, 1700 Inc. attempted to collect on the default judgment through GMBS by issuing a notice on Bank of America, where Arias had his checking account. Bank of America then informed Arias that after receiving the notice of restraint, it determined that out of the $3,919.62 he had in his account, only $1,294.62 was subject to restraint and removal since the rest had been identified as protected Social Security retirement income (SSRI). That same month, Arias tried to explain to GMBS that in fact all of the money in his account was SSRI and was therefore exempt from restraint and garnishment under federal law. Arias also had Bank of America send GMBS his bank statements for the period February through December 2014, which showed that all of the deposits were exclusively SSRI. Even with these statements, GMBS replied that it would only release Arias's funds if he first made a payment. Arias then mailed GMBS an Exemption Claim Form.

The matter went to state court, where Arias represented himself and prevailed. A GMBS attorney reviewed the bank statements Arias had with him - the same ones he had sent GMBS before - and subsequently withdrew the objection and agreed to release the funds.

After the hearing, Arias filed suit in the Southern District of New York alleging that GMBS violated § 1692e and § 1692f of the FDCPA as well as a New York law known as the Exempt Income Protection Act (EIPA). The district court dismissed Arias's claims, and Arias timely appealed.

Under federal law, Social Security benefits are exempt from garnishment and restraint. New York also enacted the EIPA in 2008 to better protect exempt funds from forcible collection, by "remed[ying] an imbalance in the prior law which unfairly placed the burden on debtors to show that their funds were exempt, at a time when they were being deprived access to those funds." After beginning a restraint or garnishment process by filing a notice with the debtor's bank, a debtor may file an exemption claim form, as Arias did here. Regardless of whatever documents the debtor provides with this form form, the bank must release the funds eight days after receiving the claim unless the creditor files an objection in court during that same time. Should a creditor choose to file an objection, it must accompany it with an affirmation stating a reasonable belief that the debtor's account does not contain any exempt funds within it. A creditor, however, will be liable for the debtor's costs, reasonable attorney's fees, actual damages, and an amount not over $1,000, if he or she objects in bad faith.

The FDCPA is a strict liability statute and therefore does not require that a plaintiff to show that the debt collector acted intentionally. § 1692e of the FDCPA prohibits false, deceptive, or misleading representations and § 1692f prohibits unfair or unconscionable means used to collect a debt. When faced with a FCPA claim, a court must analyze the reasonableness of an interpretation from the outlook of the least sophisticated consumer. GMBS claimed that Arias's funds were not exempt since he commingled his funds with personal deposits. New York's EIPA, however, does not require a plaintiff to disprove commingling of his or her funds in order to have them be exempt from debt collection. Additionally, Arias's bank statements, which he had sent to GMBS twice before the hearing in State court, from February through December 2014 only show that the deposits made during that time were only SSRI. Because of this, GMBS violated both sections of the statute by: 1) falsely suggesting Arias's funds were no longer exempt because they were commingled with his personal funds; 2) having documentary proof Arias's funds were exempt but still refused to release them until he made a payment he could not afford; and 3) forcing him to attend an unnecessary court hearing. The Court subsequently held that a debt collector engages in unfair or unconscionable litigation conduction in violation of § 1692f when it in bad faith unduly prolongs legal proceedings or requires a consumer to appear at an unnecessary hearing. Lastly, because one may violate both the FDCPA and state law when it comes to abusive debt collection practices, a plaintiff like Arias may be able to collect remedies for both violations.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...df7c9a4ae936/1/hilite/

Panel: Circuit Judges Cabranes and Lohier; District Judge Forrest

Argument Date: 4/27/2017

Argument Location: New York, NY

Date of Issued Opinion: 11/14/2017

Docket Number: No. 16-2165-cv

Decided: Vacated and Remanded

Case Alert Author: Ollia Pappas

Counsel: Claudia Wilner (Marc Cohan, National Center for Law and Economic Justice, New York, NY; Susan Shin, New Economy Project, New York, NY; Ahmad Keshavarz, Brooklyn, NY, on the brief); National Center for Law and Economic Justice, New York, NY for Plaintiff-Appellant; Kenneth A. Novikoff, Rivkin Radler LLP, Uniondale, NY for Defendants-Appellees.

Author of Opinion: Judge Lohier

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 11/15/2017 09:33 PM     2nd Circuit     Comments (0)  

November 10, 2017
  Mahoney v. City of Seattle
Headline: The City of Seattle's "Use of Force Policy" does not violate the Seattle Police Department's police officers' Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense."

Areas of Law: Constitutional Law; Civil Rights

Issues Presented: Whether the Seattle Police Department's police officers' Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense" is violated by the City of Seattle's "Use of Force Policy."

Brief Summary: The Ninth Circuit panel affirmed the district court's holding that the City of Seattle's "Use of Force Policy" does not violate the Seattle Police Department's police officers' Second Amendment Right to use department-issued firearms for the "core lawful purpose self-defense." Approximately one hundred and twenty-five police officers from Seattle's Police Department filed suit against the City of Seattle alleging their Second Amendment right was violated by the City of Seattle's "Use of Force Policy." The Ninth Circuit panel applied a two-step inquiry and found the "Use of Force Policy" did not impose a substantial burden on the Second Amendment right to use a firearm for the core lawful purpose of self-defense. Because the "Use of Force Policy" did not impose a substantial burden, the panel applied the intermediate scrutiny test and concluded that the City of Seattle has a substantial interest in ensuring the safety of the public and its police officers. The "Use of Force Policy" permits the de-escalation of unnecessary force and prevents police officers from engaging in practices which would violate constitutional rights of citizens. Further, there is a reasonable fit between the City of Seattle's interest and ensuring the safety of the public and police officers. Therefore, the "Use of Force Policy" is constitutional.

Significance: Seattle Police Department's police officers' Second Amendment right to use department-issued firearms for the "core lawful purpose of self defense" is not violated by the City of Seattle's "Use of Force Policy." The scope of the Second Amendment right to be ar arms has been a controversial issue. This case sheds light on the constitutional right of police officers to assert their Second Amendment right to use firearms in self-defense and the interest of their employer in placing restrictions on that right.

Extended Summary: In 2012, the United States filed a civil suit against the City of Seattle alleging that Seattle Police Department's police officers were "engaged in a pattern or practice of excessive force." The parties settled, agreeing to a "Use of Force Policy" ("the Policy") which was approved by United States District Judge James L. Robart on December 17, 2013. The Policy recites, in part, "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situations, when necessary, to achieve a law-enforcement objective." The Policy provides a set of factors that officers must consider in deciding whether a proposed use of force is objectively reasonable, but also provides that officers must consider those factors only "[w]hen safe under the totality of circumstances and time and circumstances permit." Further, the Policy requires officers to reduce the need for force only "[w]hen safe and feasible under the totality of the circumstances."

Approximately one hundred and twenty-five (125) police officers from the Seattle Police Department filed suit against the City of Seattle, including the Seattle Police Department (SPD) and other entities, pursuant to 42 U.S.C. § 1983, alleging that the Policy was unconstitutional. The police officers brought additional claims under the Second, Fourth, Fifth, and Fourteen Amendments, alleging that the Policy "unreasonably restricts their right to use department-issued firearms for self-defense." The City of Seattle filed a motion to dismiss which was granted by the district court that concluded that the Policy did not infringe upon the police officers' Second Amendment rights. The officers appealed this decision to the Ninth Circuit that applied the de novo standard of review.

In District of Columbia v. Heller, the Supreme Court recognized "that the inherent right of self-defense has been central to the Second Amendment right." 554 U.S. 570, 628 (2008). Post Heller, the Court adopted the following two-step inquiry "to determine whether a challenged law or regulation violates the Second Amendment": (1) whether "the challenged law [or regulation] burdens conduct protected by the Second Amendment?" and (2) if so, what appropriate level of scrutiny applies? United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013).

Applying the first step of the inquiry, the panel considered whether the Policy was "one of the 'presumptively lawful regulatory measures' identified in Heller, or [if] the record include[d] persuasive historical evidence establishing that the regulation at issue impose[d] prohibitions that fall outside the historical scope of the Second Amendment." Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (quoting Heller, 554 U.S. at 627 n.26)." Here, the panel concluded that the Policy - an employer policy that regulates the use of firearms issued by the SPD to its police officers while on duty - did not resemble any of the "presumptively lawful regulations" identified in Heller. Further, the panel concluded that there was no historical evidence to suggest that regulating police officers' use of department-issued firearms falls outside the historical scope of the Second Amendment. The panel therefore "'assume[d], without deciding, that the [UF Policy] burdens conduct falling within the scope of the Second Amendment.'" (citing Bauer v. Becerra, 858 F.3d 1216, 1221 (9th Cir. 2017).)

Having determined that the Policy is subject to Second Amendment protection, the panel proceeded to the second step to determine the appropriate level of scrutiny by considering "(1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on that right." Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016) A regulation "that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny." In contrast, a regulation which "does not implicate a core second Amendment right, or does not place a substantial burden on the Second Amendment right" warrants intermediate scrutiny. In Heller, the Court held that citizens have a right under the Second Amendment to use firearms "for the core lawful purpose of self-defense." However, the Court has also held that, when analyzing the Second Amendment in regard to a governmental employee, courts must "balance the rights of the employee 'against the realities of the employment context.'" Engquist v. Or. Dep't of Agr., 553 U.S. 591, 600 (2008).

Here, in considering how close the Policy comes to the core of the Second Amendment right, the Ninth Circuit panel found that the Policy was adopted by the City of Seattle, acting as employer, to regulate use by its employees of department-issued firearms while on duty. Therefore, the City of Seattle has a significant interest in the Policy, and thus intermediate scrutiny applies placing the burden on the city of Seattle "to justify placing restrictions on any Second Amendment right of its employees, while also giving the city the flexibility to act as an employer." The panel then considered the severity of the Policy's burden on the Second Amendment core right of self-defense in determining the appropriate level of scrutiny. The burden must not be so severe that it destroys the right of police officers to use department-issued firearms for the "core lawful purpose of self-defense." Heller, 554 U.S. at 630. The panel reasoned the Policy did not rise to a level of severity that destroyed the Second Amendment as it permitted police officers to "draw or exhibit a firearm in the line of duty when the officer has reasonable cause to believe it may be necessary for his or her own safety or for the safety of others[.]" The Policy also states, in part: "[d]eadly force may only be used in circumstances where threat of death or serious physical injury to the officer or others imminent . . . sometimes the use-of-force is unavoidable." The panel thus concluded that the Policy did not destroy the officers' rights under the Second Amendment because they were permitted to use their department-issued firearms for the "core lawful purpose of self defense."

The panel then turned to the application of the intermediate scrutiny test which requires "(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and asserted objective." Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015) (quoting Chovan, 735 F.3d at 1139).

Here, the panel found that the City of Seattle's interest was both significant and substantial because the purpose of the Policy was to ensure the safety of the public and its police officers, citing United States v. Salerno, 481 U.S. 739, 748 (1987) ("[T]he Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest."). Further, the Policy ensures that police officers do not engage in unlawful practices that violate citizens' constitutional rights, thus ensuring public safety.

Secondly, in determining in the degree of fit between the Policy and its objective, the City was not required to show that the Policy was the least restrictive means of achieving its interest. To survive intermediate scrutiny, the Policy need only "promote[s] a substantial government interest that would be achieved less effectively absent the regulation." In ruling that there is a reasonable fit between the Policy and the significant government interest in ensuring the safety of the public and the City's police officers, the panel noted that the Policy "expressly contemplates that de-escalation techniques will not be feasible in every situation, and even states that 'sometimes, the use of force is unavoidable.'" Holding that the Policy survives intermediate scrutiny and is, therefore, constitutional, the Ninth Circuit panel affirmed the district court's decision, concluding the Policy did not violate Appellants Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense." (Appellants claims under the Fourth, Fifth, and Fourteenth amendments were dismissed for failure to state a cognizable claim.)

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/09/19/14-35970.pdf

Panel: Carlos T. Bea and N. Randy Smith, Circuit Judges, and William Q. Hayes, District Judge.

Argument Date: May 8, 2017

Date of Issued Opinion: September 19, 2017

Docket Number: 14-35970

Decided: Affirms the district court's ruling that the City of Seattle's "Use of Force Policy" does not violate the Seattle Police Department's police officers Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense."

Case Alert Author: Georgia Kefallinos

Counsel:

Athan E. Tramountanas (argued), Short Cressman & Burgess PLLC, Seattle, Washington; Lisa Ann Battalia, Law Office of Lisa Ann Battalia, Bethesda, Maryland; for Plaintiffs- Appellants.
Gregory Colin Narver (argued), Assistant City Attorney; Peter S. Holmes, City Attorney; City Attorney's Office, Seattle, Washington; for Defendants-Appellees.
Author of Opinion: District Judge William Q. Hayes

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/10/2017 05:18 PM     9th Circuit     Comments (0)  

  American Beverage Ass'n v. City & County of San Francisco
Headline: The Ninth Circuit panel found the City and County of San Francisco's ordinance that required warnings about the health effects from consuming certain sugar-sweetened beverages on specific types of fixed advertising within San Francisco was an unduly burdensome disclosure requirement that might offend the First Amendment by chilling protected commercial speech

Areas of Law: Constitutional Law

Issues Presented: Whether the ordinance enacted by the City and County of San Francisco requiring warnings about the adverse health effects of certain sugar-sweetened beverages on specific types of fixed advertising unduly burdened and chilled protected commercial speech under the First Amendment.

Brief Summary: Plaintiffs - the American Beverage Association, the California Retailers Association, and the California State Outdoor Advertising Association - filed suit against the City and County of San Francisco seeking injunctive relief to prevent implementation of a city ordinance requiring advertisers of certain sugar-sweetened beverages to post the following health effect warning on their advertisements: "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco." The district court denied the Associations' motion for a preliminary injunction. Concluding that the Associations would not prevail on the merits of their First Amendment challenge the district court held that the warning was not misleading, would not place an undue burden on the Associations' commercial speech, and was rationally related to a government interest.

The Ninth Circuit panel reversed and remanded the district court's denial of the Associations' motion for preliminary injunction holding that the Associations would likely prevail on the merits of their First Amendment's claim. Applying the following analytical framework applicable to commercial speech announced by the Supreme Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985) - "a commercial speaker's constitutionally protected interest in refraining from providing consumers with additional information is minimal if a required disclosure is 'purely factual and uncontroversial' and is not 'unjustified or unduly burdensome' so as to chill protected speech" - the panel found that the warning's message was controversial and not purely factual when the warning asserted that consuming certain sugar-sweetened beverages would contribute to obesity, diabetes, and tooth decay. The panel determined that this assertion is misleading since it is contrary to statements by the FDA that added sugars are "generally recognized as safe," and "can be a part of a healthy dietary pattern when not consumed in excess amounts." The panel also found that the ordinance placed undue burden on the Associations' commercial speech because the warning would overwhelm other visual elements of their advertisements and leave no room to convey their messages. Although the panel agreed that San Francisco has a substantial government interest in promoting the health of its citizens, it concluded that the Associations would likely prevail on the merits of their First Amendment challenge because the ordinance was not purely factual and was unduly burdensome. Additionally, the panel found that other factors of the preliminary injunction test weighed in the Associations' favor. Accordingly, the panel reversed and remanded the district court's judgment.

Significance: Applying Zauderer's analytical framework applicable to commercial speech, the Ninth Circuit panel concluded that "San Francisco has not carried its burden 'of demonstrating the legitimacy of its commercial-speech regulations,' because of substantial evidence in the record that the regulation is misleading and would chill the Associations' protected commercial speech.".

Extended Summary: In June 2015, the City and County of San Francisco ("San Francisco") enacted an ordinance requiring the advertisers of certain sugar-sweetened beverages to place a warning about the adverse health effects in their beverage advertisements. The mandatory warning included the following message, "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco." Failure to include such warning would result in penalties imposed by the San Francisco's Director of Health.

According to San Francisco, the ordinance was intended to raise consumer awareness about the existence of added sugars in said beverages, and thus promoted public health and preserved economic resources.

In July 2015, prior to the ordinance's effective date, the American Beverage Association, California Retailers Association, and the California State Outdoor Advertising Association ("the Associations") filed suit seeking a preliminary injunction against implementation of the ordinance alleging that the ordinance would place an undue burden that would have a chilling effect on the Associations' protected commercial speech under the First Amendment.

In May 2016, the district court denied the motion on grounds that the Associations would not likely prevail on the merits of their First Amendment claim because the mandatory warning was not misleading, would not place an undue burden on their commercial speech, and was rationally related to a government interest.

On appeal, the Ninth Circuit panel addressed the issue whether the ordinance mandating disclosure was purely factual and uncontroversial, and whether it constituted an undue burden on commercial speech and thus violated the Associations' First Amendment rights.

The panel applied Zauderer's analytical framework in reviewing the Associations' First Amendment challenge. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). Although Zauderer involved a government regulation intended to protect consumers from deceptive commercial advertisements, the panel joined other circuits in holding that Zauderer also applied to government regulation intended to promote public health. Applying Zauderer, the panel asserted that a disclosure requirement that is "purely factual and uncontroversial" and is not "unduly burdensome" would survive First Amendment scrutiny so long as it is "reasonably related to a substantial government interest."

First, the panel examined the character of the alleged ordinance and noted that a disclosure requirement is not "purely factual" when it is "literally true but nonetheless misleading and, in that sense, untrue." CTIA-The Wireless Ass'n v. City of Berkeley, 854 F.3d 1105, 1118 (9th Cir. 2017). The panel concluded that the ordinance's factual accuracy was questionable because the warning statement asserted that sugar-sweetened beverages contribute to obesity, diabetes, and tooth decay regardless of the quantity consumed and other lifestyle choices. In addition, the panel found that the statement was contrary to FDA guidelines, which provided that added sugars are "generally recognized as safe" and "can be part of a healthy dietary pattern when not consumed in excess amounts." While San Francisco's experts provided that there is a "clear scientific consensus" showing a direct link between excessive consumption of added sugar beverages and obesity and diabetes, the experts failed to negate the Associations' expert's assertion that consuming sugar-added beverages does not increase the risk of obesity or diabetes so long as the consumer maintains a healthy balance between their caloric intake and energy output. The panel also found that the warning was "misleading" for singling out sugar-sweetened beverages as less healthy than other sources of added sugars and calories, which was contrary to other FDA and the American dental Association's current research.

Next, in determining whether the ordinance placed undue burden on the Associations' commercial speech, the panel noted that "[a] required disclosure may be unduly burdensome if it 'effectively rules out' advertising in particular media." Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 146 (1994). The panel concluded that the ordinance constituted an undue burden that chilled the Associations' protected commercial speech because the black box warning overwhelmed other visual elements in the advertisements and left no room for advertisers to convey their message. The panel concluded that the ordinance's burden would have a chilling effect on protected speech causing major manufacturers of said beverages to remove their advertising from covered media if the ordinance went into effect.

While agreeing that San Francisco had a legitimate government interest in promoting the health of its citizens, the panel concluded that San Francisco had not met its burden to prove the "legitimacy of its commercial-speech regulations" and, therefore, that the Associations met their burden to show that they would likely succeed on the merits of their First Amendment challenge.

The panel also found that the remaining factors of the preliminary injunction test weighed in favor of the Associations because they would likely suffer an irreparable harm if the ordinance became effective, the balance of hardship also tipped in their favor, and protecting a party's First Amendment rights has always been in the public interest.

Concluding that the district court abused its discretion in denying the Associations' motion for preliminary injunction against the ordinance the panel reversed and remanded the case for further proceeding.

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/09/19/16-16072.pdf

Panel: Dorothy W. Nelson, Sandra S. Ikuta, and J. Michael Seabright, Circuit Judges.

Argument Date: April 17, 2017

Date of Issued Opinion: September 19, 2017

Docket Number: 3:15-cv-03415-EMC

Decided: Reversed and remanded the district court's denial of Associations' motion for preliminary injunction to enjoin the City and County of San Francisco from imposing ordinance requiring advertisers of certain types of sugar-sweetened beverages to include the health effect warnings on their advertisements within San Francisco.

Case Alert Author: Phuong Luong

Counsel:
Richard P. Bress (argued), Melissa Arbus Sherry, and Michael E. Bern, Latham &Watkins LLP, Washington, D.C.; James K. Lynch and Marcy C. Priedeman, Latham & Watkins LLP, San Francisco, California; for Plaintiff-Appellant American Beverage Association.

Thomas S. Knox, Knox Lemmon & Anappolsky LLP, Sacramento, California; for Plaintiff-Appellant California Retailers Association

Theodore B. Olson, Andrew S. Tulumello, and Helgi C. Walker, Gibson Dunn & Crutcher LLP, Washington, D.C.; Charles J. Stevens and Joshua D. Dick, Gibson Dunn & Crutcher LLP, San Francisco, California; for Plaintiff-Appellant California State Outdoor Advertising Association.

Christine Van Aken (argued), Jeremy M. Goldman, and Wayne Snodgrass, Deputy City Attorneys; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendant-Appellee.

Author of Opinion: Judge Sandra S. Ikuta

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/10/2017 05:14 PM     9th Circuit     Comments (0)  

  Lambert v. Nutraceutical Corp.
Headline: The Ninth Circuit panel held that Federal Rule 23(f)'s fourteen-day deadline for filing a petition for interlocutory appeal of an order decertifying a class is procedural and, therefore, subject to equitable exceptions such as tolling. Parting ways with other circuits, the panel also held that, because plaintiff informed the court orally of his intention to seek reconsideration of the decertification order within fourteen days of the decertification order, and because the district court set the deadline for filing a motion for reconsideration after the expiration of the deadline, with which Lambert complied, the Rule 23(f) deadline was tolled. .
Areas of Law: Civil Procedure

Issues Presented: Whether the fourteen-day time limit, provided in Federal Rule of Civil Procedure 23(f) for appealing an order decertifying a class action was tolled at the time plaintiff informed the court, within the fourteen-day period, of his intention to file a motion for reconsideration of the order, even though the motion was filed, at the court's instruction, after the expiration of the deadline.

Brief Summary: Plaintiff brought a consumer class action against defendant, alleging that defendant's product made egregious false representations causing injury. After the district court granted defendant's motion to decertify the class, plaintiff, within the fourteen days of the decertification order, informed the court of his intention to file a motion to reconsider the order. As directed by the court, ten days later, and twenty days after the expiration of the fourteen-day deadline, plaintiff moved for reconsideration which the court denied three months later. Fourteen days later, plaintiff filed a petition for permission to appeal the district court's order.

Rule 23(f) provides that a petition for permission to appeal an order granting or decertifying a class must be filed within fourteen days of said order. The panel held this Rule 23(f) is a procedural and thus may be subject to equitable exceptions, like tolling, under certain circumstances. Although circuits that have considered this issue agree that this deadline may be tolled when the plaintiff files the motion for reconsideration within the fourteen-day period, the Ninth Circuit panel parted ways with other circuits in holding that the deadline is also tolled when the plaintiff orally informs the court, within the fourteen-day deadline, of his intention to move for reconsideration and, at the court's instruction, then files the motion after the expiration of the deadline. Addressing the meirts of the appeal, the panel also held that district court abused its discretion in decertifying the class.

Significance: Disagreeintg with the position of other circuits that limit the availability of equitable exceptions to the Rule 23(f) deadline by allowing tolling only when the motion for reconsideration is filed, the Ninth Circuit panel allowed tolling when the plaintiff, within the fourteen-day deadline, orally informed the court of his intention to move for reconsideration.

Extended Summary: Plaintiff, Troy Lambert, brought a consumer class action against defendant, Nutraceutical Corporation, for violations of California's Unfair Competition Law ("UCL"), False Advertising Law ("FAL"), and Consumer Legal Remedies Act ("CLR").

Nutraceutical manufactured and marketed "Cobra Sexual Energy," an alleged aphrodisiac supplement not approved by the Food and Drug Administration ("FDA"). Despite "Cobra Sexual Energy's" lack of FDA approval, defendant claimed its product contained performance-enhancing herbs that would provide users with "animal magnetism" and "potency wood." Based on these assertions plaintiff purchased the product. Had Lambert known the product lacked FDA approval, plaintiff contends he would not have purchased the product.

The district court granted class certification because Lambert's full refund damages model provided a reasonable theory that monetary relief could be ascertained on a classwide basis. Once discovery concluded, defendant moved to decertify the class which the district court granted explaining that, although Lambert's full refund damages model was consistent with the theories of liability alleged, his failure to provide "the key evidence necessary to apply his class wide model for damages" was fatal.

Ten days after the order decertifying the class, Lambert informed the district court of his intention to file a motion for reconsideration. The district court instructed Lambert to file the motion within ten days. As instructed by the court, Lambert moved for reconsideration ten days later. Three months later, the court the court denied Lambert's motion for reconsideration. Fourteen days after his motion for reconsideration was denied, Lambert filed a Rule 23(f) petition to appeal the court's decertification orders granting the motion for decertification and denying the motion for reconsideration.

Rule 23(f) requires that a petition for permission to appeal an order granting or denying class certification be filed within fourteen days after the order is entered. However, the rule is silent as to the effect a motion for reconsideration has on the fourteen-day deadline. Lambert's petition for permission to appeal the denial of his motion for reconsideration was filed approximately three months after the order for decertification was granted.

In order to determine whether Rule 23(f) deadline bars Lambert's petition for permission to appeal, the panel first had to determine whether Rule 23(f) is jurisdictional. To decide this issue, the panel was guided by two Supreme Court decisions: Eberhart v. United States, 546 U.S. 12 (2205) and Bowles v. Russell, 551 U.S. 205 (2007). In Eberhart, the Supreme Court held that a deadline in the Federal Rules of Criminal Procedure was not jurisdictional, because it was a procedural "claims-processing" rule. In Bowles, the Court held that deadlines in statutes are jurisdictional but non-statutory deadlines may instead be "claims-processing" rules. Applying Bowles and Eberhart the panel held that Rule 23(f) is not jurisdictional "because it is procedural, does not remove a court's authority over subject matters or persons, and is in the Federal Rules of Civil Procedure, rather than in a statute."

After determining that Rule 23(f) is not jurisdictional that panel had to decide what if any equitable considerations could be applied and whether plaintiff was entitled to any. The panel agreed with those circuits that have held that the deadline may be tolled when the plaintiff filed his motion for reconsideration within the fourteen-day deadline. However, the panel noted that these circuits would not toll the deadline in circumstances like Lambert's where the motion was filed twenty days after the running of the fourteen-day deadline.

To determine when equitable circumstances beyond a motion for reconsideration filed within the fourteen-day Rule 23(f) deadline can toll the deadline, the panel applied the following equitable factors: (1) whether the litigant pursued his rights diligently; (2) whether external circumstances affected the litigant's ability to comply with the fourteen-day deadline; and (3) other legal actions taken by litigant. Here, Lambert conveyed his intention to file a motion for reconsideration to the district court, complied with the imposed deadline set by the court, and thereafter was diligent in submitting his petitioning to the appellate court. The panel found no evidence of bad faith. Furthermore, there was justifiable reliance on the district court's instructions (ten days after the order for decertification was granted petitioner was told that he had ten more days to file his motion).

Turning to the merits of the appeal, the panel concluded that the district court had abused its discretion in decertifying the class on the basis of Lambert's inability to prove restitution damages through the proposed full refund model, citing Yokoyama v Midland Nat'l Life Ins. Co, 594 F.3d 1087, 1094 (9th Cir. 2010): "damage calculations alone cannot defeat certification.". The panel reconciled this holding in Yokoyama with the Supreme Court's holding in Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1433 (2013), that a Rule 23(b)(3) plaintiff must show that "damages are capable of measurement on a class wide basis," by noting that "Comcast stood only for the proposition that 'plaintiffs must be able to show that their damages stemmed from the defendant's actions that created the legal liability.'"

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/15/15-56423.pdf

Panel: Richard A. Pae, Marsha S. Berzon, and Morgan Christen, Circuit Judges

Argument Date: March 9, 2017

Date of Issued Opinion: September 15, 2017

Docket Number: D.C. No. 2:13-cv-05942-AB-E

Decided: Reversed and remanded for further proceedings. The court found that plaintiff's petition for class certification, pursuant to Fed. R. Civ. P. 23(f), was timely made.

Case Alert Author: Luis F. Bustamante

Counsel
Gregory Weston (argued) and David Elliott, The Weston Firm, San Diego, California; Ronald A. Marron, The Law Offices of Ronald A. Marron APLC, San Diego, California; for Plaintiff-Appellant.

Steven N. Feldman (argued) and John C. Hueston, Hueston Hennigan LLP, Los Angeles, California; Jon F. Monroy, Monroy Averbuck & Gysler, West Lake Village, California; for Defendant-Appellee.
Author of Opinion: Richard A. Paez

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/10/2017 05:11 PM     9th Circuit     Comments (0)  

October 31, 2017
  United States v. Marshall -- Fourth Circuit
Following Conviction, Substitute Assets Cannot Be Used To Hire Appellate Counsel


Areas of Law: Criminal, Forfeiture

Issue Presented: Whether Marshall may use substitute assets in a credit union account to hire appellate counsel of his choice for the appeal of his criminal convictions.

Brief Summary: Andracos Marshall filed a motion in the United States Court of Appeals for the Fourth Circuit seeking to use substitute assets from a credit union account to hire appellate counsel following his conviction. Addressing Marshall's constitutional argument, the Fourth Circuit explained that title to the credit union account vested with the Government upon Marshall's conviction. Accordingly, Marshall had no constitutional right to the assets, which no longer belonged to him. Next, the court explained that the timing requirements in Federal Rule of Criminal Procedure 32.2 were not fatal to the forfeiture the Government sought. In conclusion, the Fourth Circuit denied Marshall's motion to use the substitute assets to hire appellate counsel.

Extended Summary: On February 24, 2014, Andracos Marshall was charged with several drug-related crimes and money laundering. The Government indicated it would seek forfeiture of substitute assets if the property derived from Marshall's alleged crimes was not located. On November 5, 2015, the Government filed a Bill of Particulars, specifying that it would seek forfeiture of the $59,000 in Marshall's National Institutes of Health Federal Credit Union Account.

After a ten-day trial in the United States District Court for the District of Maryland, a jury found Marshall guilty of all counts. The Government moved to order forfeiture. The District Court entered an order of forfeiture for $51.3 million against Marshall, but it did not specifically mention Marshall's credit union account. The Government filed a motion for a second order of forfeiture, requesting the credit union funds be forfeited as substitute assets under 21 U.S.C. § 853(p). The District Court entered the second forfeiture order. Marshall filed a motion in the United States Court of Appeals for the Fourth Circuit to use the untainted funds in his credit union account to hire appellate counsel.

First, Marshall argued that the Constitution required his substitute assets be released so he could hire appellate counsel. The Fourth Circuit assumed, but did not decide, that Marshall had a constitutional right to appellate counsel of choice. Then, the court looked to two Supreme Court cases. In Caplin & Drysdale, Chartered v. United States, the Supreme Court held that a defendant may not use tainted funds forfeited after conviction to pay trial counsel fees. 491 U.S. 617 (1989). The Caplin Court reasoned that title to the tainted property vested in the Government at the time of the criminal act. Also, the government's interest in the property outweighed the defendant's interest. In Luis v. United States, the Supreme Court held that a defendant may use untainted assets pretrial to hire counsel of choice. 136 S. Ct. 1083 (2016). Unlike tainted assets, title to untainted "substitute" property does not vest with the government until after conviction.

Marshall sought to use untainted assets after conviction. The Fourth Circuit explained that title to the funds in the credit union account, which were substitute assets, vested in the Government when Marshall was convicted. Marshall therefore had no interest in property that was no longer his, whereas the Government had an ownership interest and an interest in making victims whole through the assets. Under these circumstances, the Fourth Circuit concluded that the Constitution did not require Marshall's substitute assets be released for Marshall to hire appellate counsel.

Second, Marshall contended that the Government violated Federal Rule of Criminal Procedure 32.2 by waiting months after the verdict to seek his credit union funds as substitute assets. Looking to the language of the Rule, the Fourth Circuit explained that an order of forfeiture can be entered "at any time." Moreover, the timing requirements in Rule 32.2 have been interpreted as time-related directives. As such, they serve to keep the process moving, but are not dispositive if a deadline is missed. Lastly, Marshall had notice that the Government intended to seek forfeiture of the credit union funds because it was in its Bill of Particulars. In conclusion, the Fourth Circuit denied Marshall's motion to use his forfeited funds to hire appellate counsel of choice.

To read the full opinion, click here.

Panel: Judges Agee, Keenan, and Harris

Argument Date: 05/11/2017

Date of Issued Opinion: 09/25/2017

Docket Number: No. 16-4494

Decided: Motion denied by published opinion.

Case Alert Author: Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: Marvin David Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria, Virginia, for Appellant. Evan Thomas Shea, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee

Author of Opinion: Judge Agee

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/31/2017 11:28 AM     4th Circuit     Comments (0)  

  Buxton v. Kurtinitis -- Fourth Circuit
A Dream Deferred for Performance or Denied for Religion?

Areas of Law: Constitutional Law, First Amendment Law, Civil Law

Issues Presented: (1) Whether the district court erred in determining the Free Speech Clause has no application in the context of speech expressed during a competitive admissions interview? (2) Whether the district court properly granted summary judgment to the defendants in determining that denying admission to the plaintiff did not violate the Establishment Clause?

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held the district court's dismissal of plaintiff's First Amendment retaliation claim was proper because the plaintiff failed to satisfy the first element of such a claim. The Fourth Circuit also held that the district court properly granted summary judgment to the defense because the plaintiff failed to show that the defendants' actions violated any elements of the Establishment Clause.

Extended Summary: In 2013 and 2014, Dustin Buxton applied to the Radiation Therapy Program (RTP) at the Community College of Baltimore County (CCBC), a competitive program that weighs numerous factors when admitting approximately 15 students each year. To gain admission to the RTP, applicants must pass two application stages, receiving an individual score at each stage. At the first stage, applicants are scored based on (1) their GPA and (2) their observation day at a local hospital. If the applicants pass the first stage, they are then invited to a second stage, which consists of a logic exam, a writing sample, and a panel interview. In 2013, Buxton was invited to the second stage, but did not gain admission to the RTP. This decision was made for various reasons including: Buxton's poor feedback on his observation day; his failure to fully read the questions on the writing sample and supply an appropriate response; and his perceived lack of interpersonal skills for this field. In his written review of his application, Adrienne Dougherty, the Director of the RTP at the CCBC, also stated that "[Buxton] brought up religion a great deal during the interview. Yes, this is a field that involves death and dying; but religion cannot be brought up in the clinic by therapist [sic] or students." Buxton applied to the program again in 2014, but he did not make it through the application process because his first stage score was not high enough to move on to the second stage.

Buxton brought this action against Dougherty and other CCBC employees alleging violation of the Free Speech Clause, the Establishment Clause, and the Equal Protection Clause. He claimed that he was discriminated against because he expressed his religious beliefs during his interview. The United States District Court for the District of Maryland dismissed the Free Speech claim and granted summary judgment in favor of the defendants on Buxton's Establishment Clause and Equal Protection claims. Buxton appealed the dismissal of his Free Speech claim and the grant of summary judgment on his Establishment Clause claim to the Fourth Circuit.
The Fourth Circuit affirmed the district court's dismissal of Buxton's Free Speech claim finding that Buxton failed to satisfy the first element for a First Amendment retaliation claim. The Fourth Circuit also upheld the district court's grant of summary judgment because Buxton failed to show that the CCBC's actions violated any elements of the Establishment Clause.

The court first analyzed the retaliation claim. In order for Buxton to succeed in a First Amendment retaliation claim, the following elements must be satisfied: (1) Buxton engaged in protected First Amendment activity, (2) the defendants took some adverse action that affected Buxton's First Amendment right, and (3) there was a cause and effect relationship between Buxton's protected activity and the defendants' conduct. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).

To amount to protected activity under the first prong, Buxton's First Amendment claim had to fall within one of three recognized categories: (1) employment; (2) public forum; or (3) a case "where the government is providing a public service that by its nature requires evaluations of, and distinctions based upon, the content of speech." The court found that Buxton's speech did not fall into the first two categories. Buxton's speech in the interview room was not an employment case because his speech was related to a personal interest for admission to CCBC. Buxton's speech also did not fall into the public forum framework because public forum cases deal with the government restricting access to a forum by preventing speech happening all together. In this case, there was no restriction on Buxton's speech since it already occurred in the interview room. Having rejected application of the first two categories, the court determined the most relevant category to examine Buxton's speech was the final category of cases where the government is providing a public service that by the competitive nature of the process required the government to make speech-based distinctions. Examining this category, the court ruled that the defendants did not violate Buxton's right to free speech. This determination was made by examining prior cases where the government was permitted to use content-based distinctions to judge the relative excellence of prospective art projects. Such distinctions are also permitted where the government is providing a public benefit that was allocated to a limited number of persons through a competitive process. In this case, the court reasoned that the CCBC must judge the excellence of prospective students who apply for admission to the finite number of available slots open in the RTP program. Narrowing the candidates using the interview process necessarily required content-based distinction to be made on the applicants' speech. Accordingly, the Fourth Circuit affirmed the district court's dismissal of Buxton's Free Speech claim.

The court then analyzed Buxton's Establishment Clause claim. The court applied the Lemon test to determine whether the CCBC violated the Establishment Clause. For the government's conduct to comply with the Establishment Clause, it must (1) have a secular purpose; (2) have a primarily secular effect; and (3) not foster excessive entanglement between government and religion. The court found that the defendants had the secular purpose of identifying the best qualified candidates for the RTP and Buxton was not among the best qualified candidates. Second, using the topics discussed by interviewees during their interviews as a means of determining interpersonal skills was not improper and could not be construed as inhibiting religion. Last, since the third prong of this test dealt with the excessive entanglement from the government's "invasive monitoring," the court found that this prong was irrelevant. The court concluded that the district court properly granted summary judgment in the defendants' favor on Buxton's Establishment Clause claim.

To read the full opinion, click here.

Panel: Circuit Judges Traxler, Floyd, and Harris

Argument Date: 05/10/2017

Date of Issued Opinion: 07/07/2017

Docket Number: 16-1826

Decided: Affirmed by published opinion.

Case Alert Author: Nneka Adibe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Carly Farrell Gammill, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, for Appellant. Peter Stephen Saucier, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellees. ON BRIEF: Abigail A. Southerland, Franklin, Tennessee, Michelle K. Terry, Greenville, South Carolina, Francis J. Manion, AMERICAN CENTER FOR LAW & JUSTICE, New Hope, Kentucky; John Garza, GARZA LAW FIRM, P.A., Rockville, Maryland, for Appellant. Clifford B. Geiger, Bernadette M. Hunton, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellees. Thomas C. Berg, Religious Liberty Appellate Clinic, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, Minneapolis, Minnesota; Kimberlee Wood Colby, CENTER FOR LAW AND RELIGIOUS FREEDOM, Springfield, Virginia, for Amici Curiae.

Author of Opinion: Circuit Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/31/2017 11:10 AM     4th Circuit     Comments (0)  

  United States v. Lefsih -- Fourth Circuit
One Question Too Many? Judges Enjoy Broad Discretion to Manage Trials, But Cannot Compromise Impartiality

Areas of Law: Constitutional Law

Issues Presented: Whether the trial judge's questioning of the state's witness was improper, and if so, whether it denied the Appellant of his substantial right to a fair and impartial trial.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit found that the District Court for the Eastern District of North Carolina acted improperly and denied the Appellant his right to a fair and impartial trial. The district court's extensive questioning of the state's witness and expressed skepticism of the Diversity Immigrant Visa Program conveyed a negative impression to the jury of both the program and of individuals, like the Appellant, who avail themselves of the program. The Fourth Circuit found that the district judge directly conveyed to the jury his skepticism of both the immigration program and the Appellant himself, and held that the district court's actions were in error. Further, the Fourth Circuit concluded that the factors it has relied on to mitigate the prejudicial effect of improper judicial interventions were absent in this case. Thus, the court held that the district court's error was sufficiently prejudicial to undermine confidence in Lefsih's conviction and vacated the judgment.

Extended Summary: The Appellant, Hemza Menade Lefsih, immigrated to the United States from Algeria through the Diversity Immigrant Visa Program ("Diversity Program"). The Diversity Program awards permanent residence immigration visas based on a lottery system to people from countries that typically have low immigration numbers in the United States. Among other things, the application (Question 23) asks whether an applicant has "ever been arrested, cited, or detained by any law enforcement officer . . . for any reason." Mr. Lefsih answered this question, "No." However, Mr. Lefsih, who worked as a cab driver in North Carolina, had received eleven traffic tickets. These tickets fell under the definition of a "citation" for the purposes of the application. Mr. Lefsih was thus charged with two counts of immigration fraud and two counts of making a false statement on a naturalization form.

The issue before the district court was whether Mr. Lefsih knowingly made a false statement on a naturalization form. During the trial, the state called two witnesses, and the defense called one, Mr. Lefsih. The state's second witness, Mr. Gary Freitas, was a senior officer with the United States Citizenship and Immigration Services. Mr. Freitas testified about the Diversity Program and the application process for citizenship. Several times during Mr. Freitas' direct examination, the trial judge asked questions about the Diversity Immigrant Visa Program and those who avail themselves of the lottery based immigration program. For example, after the witness testified that the program was established by Congress, the district court interjected saying, "Don't you love Congress? I mean, unbelievable, unbelievable." When the witness explained that the purpose of the Diversity Program was to award visas to individuals from countries with historically low immigration numbers, the district court again interjected and asked: "And Congress is aggressively trying to bring those people to America by creating a lottery where they have special treatment?" After the witness responded, the district court continued, asking, "Aren't there quotas on people coming from countries that send a lot of people here, and you have to show you're a doctor, an engineer or a rocket scientist or someone who is going to contribute to the well-being of the United States of America and make it a better place to live because of your skill or personal characteristics? . . . But if you're in the bottom hundred countries in the world, just come on." The witness responded that for the Diversity Program, an individual only needed to apply for the lottery to have a chance. The district court judge then retorted, "But they don't have to be a back surgeon or anything? So if you get lucky and win the lottery and get a card to America you can drag along your ten kids and four wives or what?"

Subsequently, Mr. Lefsih was called to testify on his own behalf. Mr. Lefsih testified that he believed Question 23 was referring only to criminal offenses that resulted in arrests or detentions, not traffic tickets, and that the false answer was an honest mistake. The jury deliberated for 30 minutes before returning with a guilty verdict on all counts.

Mr. Lefsih appealed his convictions to the United States Court of Appeals for the Fourth Circuit. He argued that the district court impermissibly conveyed to the jury, through questions and comments that otherwise were irrelevant to the case, the court's skepticism of the Diversity Program, as well as its negative view of the immigrants - like Lefsih - who avail themselves of the Program. While the district court generally has broad discretion to exercise reasonable control over the examination of witnesses, the issue in front of the Fourth Circuit was two-fold. First, whether the judicial intervention was inappropriate, and second, if it was "so prejudicial" that the defendant was on balance denied his right to a fair trial as a result.

Impartiality is compromised when judicial intrusion "creates for the jury an impression of partiality or apparent favor or disfavor for one side or the other." Here, the Fourth Circuit noted it was an "unusual" case where the problem was not "the extent of judicial participation" at the trial, but rather the "actual content of the court's questions and comments." The Fourth Circuit found that where the district court, through its questioning of a witness, interjects a negative impression of a defendant into a trial, or conveys skepticism of the defendant, then the court has "crossed the line from active trial management to 'unfairly lending the court's credibility' to the government's case."

Turning to the second prong, the court next considered whether the error was so prejudicial as to deny Mr. Lefsih a fair trial. In assessing this prong, the court considered and balanced several factors that might mitigate the prejudicial effect of the improper comments. For instance, the court looked at whether there were corrective instructions after the inappropriate comments, whether the judge equally directed criticism to both sides, the length of jury deliberation, and the relative strength of the state's case. In evaluating whether the state's case was strong enough that a jury may have found "compelling and overwhelming" evidence regardless of the comments, the court noted that the government's case was rather weak with only circumstantial evidence, and that the judge's skepticism was solely directed at Mr. Lefsih. The court weighed heavily the fact that Mr. Lefsih's sole defense that he unknowingly answered the question falsely "depended critically on his credibility," and determined that the district court's commentary was "potentially fatal" to Lefsih's credibility-based defense. Furthermore, while lengthy jury deliberation followed by a divided verdict may suggest that the jury was not affected by the improper comments, the court pointed out that the jury here deliberated for only 30 minutes before returning with a unanimous guilty verdict on all counts.

The Fourth Circuit concluded that due to the particular circumstances of this case, the trial court's interventions were "not only plainly erroneous but also 'so prejudicial' as to deny the defendant an opportunity for a fair and impartial trial." Accordingly, the Fourth Circuit vacated Mr. Lefsih's conviction and remanded for proceedings consistent with this opinion.

To read the full opinion, click here.

Panel: Judges Harris, Traxler and Floyd

Argument Date: 05/10/2017

Date of Issued Opinion: 08/14/2017

Docket Number: No. 16-4345

Decided: Vacated and remanded by published opinion.

Case Alert Author: Dana Blech, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant. Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/31/2017 10:32 AM     4th Circuit     Comments (0)  

  Jorge Yarur Bascuñán, et al. v. Daniel Yarur Elsaca, et al. - Second Circuit
Headline: Second Circuit Reverses District Court, Holding Foreign Plaintiff Sufficiently Alleged a Domestic Injury under Civil RICO Statute as Required by the United States Supreme Court's 2016 RJR Nabisco Decision

Area of Law: Civil RICO

Issue(s) Presented: Whether the foreign plaintiff, residing abroad, alleged a domestic injury as required to state a private action under civil RICO.

Brief Summary:
The United States District Court for the Southern District of New York dismissed a civil RICO lawsuit by a foreign national against his financial manager, seeking damages under the civil RICO statute, finding that the plaintiff failed to allege a domestic injury as required by the recent United States Supreme Court decision in RJR Nabisco Inc. v. European Community. The Second Circuit disagreed with the District Court's exclusive reliance on the plaintiff's foreign residence as indicative of a foreign injury, holding that injuries occurring to property located within the United States were sufficient to satisfy the domestic injury requirement. Accordingly the Second Circuit vacated and remanded to the District Court for further proceedings.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...98e70485a9b/1/hilite/

Significance, if Any: This case is one of first impression in any United States Court of Appeals interpreting the "domestic injury" requirement for Civil RICO established in the Supreme Court's RJR Nabisco decision.

Extended Summary:
In 2015, Plaintiff-Appellant Bascuñán filed an action under Section 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (RICO), commonly referred to as a civil RICO suit. In his complaint, Bascuñán alleged that his cousin Elsaca, Defendant-Appellee, continuously violated RICO in his capacity as Bascuñán's financial manager by setting up several fraudulent financial schemes, resulting in an economic loss to Bascuñán of over $64 million. The United States District Court for the Southern District of New York dismissed Bascuñán's complaint on the ground that he failed to allege a domestic injury, a requirement set forth by the United States Supreme Court in RJR Nabisco Inc. v. European Community (2016). In RJR Nabisco, the Court held that a civil RICO suit does not allow recovery for foreign injuries, so a plaintiff must allege and prove a domestic injury to business or property. In its dismissal of Bascuñán's complaint, the District Court relied on Bascuñán's place of residence, Chile, as determinative that he alleged only foreign injuries.

On appeal, the Second Circuit disagreed with the District Court's exclusive reliance on place of residence to determine whether the injuries alleged are foreign or domestic. While recognizing that a plaintiff's place of residence could be relevant to such a determination, the Second Circuit emphasizes that this fact is not by itself determinative. Sufficient contact with the United States to support a domestic injury can be satisfied by showing that there were injuries to property located within the United States, even if the plaintiff is not a resident of the United States. In this case, Bascuñán satisfied this requirement for two of his claimed injuries by alleging misappropriation of funds and theft of bearer shares that were held in New York banks, despite his residence in Chile.

In reaching this conclusion, the Court emphasizes that not just any contact with the United States will suffice to make an injury domestic. The Court found that Bascuñán's allegations of injuries to property located outside of the United States do not become domestic injuries merely because Elsaca laundered the funds through the United States. Rather, the injury must have a "sufficient relationship" with the United States, which the Court finds is satisfied by Bascuñán's claims that property located in New York was injured therein. Finding the District Court incorrectly applied the Supreme Court's requirement of domestic injury set forth in RJR Nabisco, the Second Circuit remands the case back to the District Court for a determination that is consistent with the Second Circuit's reading of the requirement.

Given that this is a case of first impression across all United States Courts of Appeals, it is likely that the Second Circuit's interpretation of RJR Nabisco could affect civil RICO lawsuits across multiple jurisdictions.

To read the full opinion, please visit:

http://www.ca2.uscourts.gov/de...98e70485a9b/1/hilite/

Panel: Circuit Judges Cabranes and Livingston; District Judge Pauley

Argument Date:
04/28/2017

Date of Issued Opinion: 10/30/2017

Docket Number: 16-3626-cv

Decided: Vacated and Remanded

Case Alert Author: Alexandra Dobles

Counsel: Robin L. Alperstein, Becker, Glynn, Muffly, Chassin & Hosinski LLP for Plaintiffs-Appellants; Jennifer M. Selendy, Quinn Emanuel Urquhart & Sullivan, LLP for Defendants-Appellees

Author of Opinion:
Judge Cabranes

Case Alert Circuit Supervisor: Elyse Diamond

    Posted By: Elyse Diamond @ 10/31/2017 08:52 AM     2nd Circuit     Comments (0)  

October 30, 2017
  Dufort v. City of New York, et. al.
Case Name: Dufort v. City of New York, et al.

Headline: Second Circuit Reinstates False Arrest and Malicious Prosecution Claims Brought by Acquitted Man Who was Arrested at Age 15 and Spent Five Years at Rikers Island Awaiting Trial

Area of Law: Criminal Procedure

Issue Presented: Whether a reasonable jury could find that the defendant police officers intentionally withheld or manipulated key evidence as to defendant's guilt during his arrest and prosecution.

Brief Summary: At age 15, Ryan Dufort was present during a barroom brawl in Queens where a fellow teenager ended up dead. A witness was shown surveillance footage that included Dufort. She stated that she could not identify him as an assailant, but that one of the attackers, whom she had only seen from behind, had been wearing a red shirt that was similar in color to Dufort's sweatshirt. Detectives then had Dufort participate in a lineup wearing a similar or identical red sweatshirt. No other participant in the lineup was wearing a red shirt. The witness then identified him as a person involved in the attack. Based largely on that identification, Dufort was arrested and charged with numerous crimes, including second-degree murder. When his case was presented to the grand jury, the grand jury was only told that Dufort had been identified as an assailant, and not that the identification was based on the color of his sweatshirt. Dufort spent nearly five years at Rikers Island awaiting trial. When the trial finally occurred, the witness could not identify him in the courtroom, and testified that she had only identified him in the lineup because of his clothing. Although Dufort's co-defendants were convicted, he was acquitted of all charges, and subsequently sued in the United States District Court for the Eastern District of New York, bringing false arrest, malicious prosecution, and due process claims. The district court dismissed his claim, but the Second Circuit reinstated his false arrest and malicious prosecution claims, on grounds that it was not clear that probable cause had supported his arrest and indictment.

Extended Summary: On October 8, 2006, two teenage boys were attacked around 3:50 AM while attempting to leave a karaoke bar. Ryan Dufort was fifteen years old at the time and was present at the bar, wearing a maroon zip-up hooded sweatshirt. Surveillance footage showed Dufort walking down a hallway carrying the pipe and later leaving with other young men who were holding bats. An eyewitness told police Dufort's clothing was similar to what the attacker was wearing. Another man in a red button-down shirt was also shown on video leaving the bar with a bat in-hand moments afterwards. In a subsequent line-up, Dufort was the only person dressed in a red shirt similar to the description given by the witness. This identification was later used to obtain a grand jury indictment.

At trial, the eye witness could not identify Dufort while on the stand. This witness testified that her identification was based solely on the similar clothing. Dufort was acquitted and brought suit under 42 U.S.C. § 1983 against the individual defendants for false arrest, malicious prosecution, and denial of due process. As well, plaintiff brought a state law claim against the City for malicious prosecution under respondeat superior. The District Court granted summary judgment for the defendants, finding there was no issue of material fact because both Dufort's arrest and prosecution were based on probable cause.

On the false arrest claim, the Second Circuit began by noting that probable cause is a fluid concept that cannot be reduced to an exact legal rule. As an initial matter, the Second Circuit made clear that the lineup identification must be disregarded for purposes of determining probable cause. The court ruled the identification was "so defective that probable cause could not reasonably by based upon it." The court was therefore required to determine whether, absent the lineup identification, the evidence was sufficient to support a finding of probable cause for the arrest. The court concluded that it was not, given the eyewitness's testimony that she had only recognized Dufort because of the color of his sweatshirt, and given the lack of video evidence, forensic evidence, and other eyewitness testimony.

The court similarly held that the malicious prosecution claim should be tried before a jury. The court rejected defendants' argument that additional evidence established probable cause for the criminal proceeding, even if there had not been probable cause for the arrest. The court reasoned the new evidence - consisting of one witness seeing Dufort in the karaoke bar and the other being a statement of the co-defendant who had accepted a plea deal - could not be evaluated at the summary judgment stage. The court likewise held that it would be premature to grant qualified immunity to the defendants.
To read the full opinion, please visit: http://pacer.ca4.uscourts.gov/...inion.pdf/101769.P.pdf

Panel: Circuit Judges Walker, Livingston, and Lynch

Argument Date: 05/03/2017

Argument Location: New York, NY

Date of Issued Opinion: 10/27/2017

Docket Number: No. 16-1715-cv

Decided: Affirmed in Part and Reversed in Part

Case Alert Author: Amanda G. Fiorilla

Counsel: Kayla C. Bensing (Edwin G. Schallert on the brief), Debevoise & Plimpton LLP, for Plaintiff-Appellant and Kathy C. Park, Assistant Corporation Counsel (Fay Ng on the brief) (on behalf of Zachary W. Cater, Corporation Counsel of the City of New York, New York, NY) for Defendants-Appellees.

Author of Opinion: Judge Walker

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/30/2017 02:50 PM     2nd Circuit     Comments (0)  

  United States v. Ventura - Fourth Circuit
When More Is Not More: Fourth Circuit Upholds Resentencing that Increases Per Count Punishment But Equals Original Sentence

Areas of Law: Criminal, Sentencing

Issue Presented: Whether the District Court's re-sentence, which was equal to Petitioner's original sentence, contravened the Fourth Circuit's mandate, was vindictive, and was unreasonable.

Brief Summary: German de Jesus Ventura was found guilty of seven offenses, and sentenced to 420 months in prison. Ventura appealed, and the Fourth Circuit vacated Ventura's conviction of Count Seven. On remand, the District Court resentenced Ventura to 420 months. Ventura appealed. The United States Court of Appeals for the Fourth Circuit affirmed the District Court's resentence. In affirming, the court explained that the newly imposed sentence complied with its mandate to the District Court. Additionally, Petitioner's resentence was not larger than Petitioner's initial sentence, so there was no presumption of vindictiveness. Lastly, the sentence was reasonable.

Extended Summary: German de Jesus Ventura operated a chain of brothels in Annapolis, Maryland. A jury found Ventura guilty of seven sex trafficking and related offenses, and Ventura was sentenced to 420 months by the United States District Court for the District of Maryland. Ventura appealed. The United States Court of Appeals for the Fourth Circuit concluded that Ventura should have been acquitted of Count Seven, possession of a firearm in furtherance of a crime of violence. Accordingly, the Fourth Circuit remanded the case for the District Court to enter a judgment of acquittal and to resentence Ventura.

At the resentencing hearing, the District Court entered judgment of acquittal on Count Seven and found Ventura's offense level to fall within an advisory sentencing guideline range of 360 months to life. The District Court considered trial testimony about Ventura's violent behavior and firearm possession, and it alluded to a Government letter indicating Ventura had received five disciplinary actions while in custody. Ultimately, the District Court resentenced Ventura to 420 months. Ventura appealed his resentence to the Fourth Circuit.

Petitioner argued that during resentencing, his initial 420-month sentence should have simply been reduced by the number of months initially corresponding to Count Seven. By instead recalculating the sentences to be imposed for the six non-vacated convictions, Petitioner argued, the District Court's resentence contravened the Fourth Circuit's mandate. The Fourth Circuit disagreed.

The Fourth Circuit first reaffirmed its embrace of the "sentencing package" doctrine. This doctrine renders an entire sentence void after a reviewing court has vacated any portion of a sentence. Moreover, the Fourth Circuit's initial mandate left room for the District Court to recalculate Petitioner's sentence for the six non-vacated convictions. Accordingly, the Fourth Circuit concluded that the District Court did not exceed its mandate.

Additionally, Petitioner argued that the District Court was presumptively vindictive because it effectively increased his sentence. Petitioner contended that though his total sentence remained the same, under the count-by-count approach (followed by two sister circuits), the District Court had increased the sentence imposed for each of his six non-vacated convictions. The Fourth Circuit, however, reaffirmed that it stands with the majority of its sister circuits and employs the aggregate package approach. Under the aggregate package approach, Petitioner's new sentence was not greater than his original sentence - it was the same. Thus, Petitioner failed to establish a presumption of vindictiveness because his aggregate sentence did not increase.

Lastly, Petitioner argued that his resentence was not reasonable. Petitioner contended that by considering testimony of Petitioner's violence and firearm possession, the District Court invaded the province of the jury. Petitioner also challenged the District Court's consideration of his conduct while incarcerated. Considering procedural reasonableness, the Fourth Circuit looked to Supreme Court precedent permitting sentencing courts to consider factual matters not determined by a jury; and circuit precedent, permitting sentencing courts to consider conduct despite an acquittal if proven by a preponderance of the evidence. The Fourth Circuit was satisfied that Count Seven's underpinnings were proven by a preponderance of the evidence. Additionally, it explained that the District Court reasonably considered Petitioner's conduct during incarceration, which had been proven by a preponderance of the evidence. Then, considering substantive reasonableness, the Fourth Circuit concluded that the resentence was reasonably within the applicable advisory guideline range. Accordingly, the Fourth Circuit concluded that the resentencing was reasonable and affirmed the District Court's decision.

To read the full opinion, clickhttp://www.ca4.uscourts.gov/Op...4808.P.pdf"> here.[/L]

Panel: Chief Judge Gregory, and Judges King and Keenan

Argument Date: 05/09/2017

Date of Issued Opinion: 07/18/2017

Docket Number: No. 15-4808

Decided: Affirmed by published opinion

Case Alert Author: Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Erek Lawrence Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda, Maryland, for Appellant. Rachel Miller Yasser, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, P. Michael Cunningham, Assistant United States Attorney, Melanie Goldberg, Student Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 01:54 PM     4th Circuit     Comments (0)  

  Zavaleta-Policiano v. Sessions -- Fourth Circuit
All in the Family: Threats to Family Business a Potential Basis for Asylum

Areas of Law: Immigration Law, Asylum Law

Issue Presented: Whether a business owner from El Salvador who sought asylum under 8 U.S.C. § 1101(a)(42)(A) established persecution on account of a familial relationship when MS-13, an international criminal gang, targeted her after her father fled the country.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the Board of Immigration Appeals abused its discretion when it held that a business owner from El Salvador was not persecuted on account of a familial relationship, despite evidence of her family's business, the prominence of her family in the region, and threats she began receiving immediately after her father fled the country. The Fourth Circuit found that Petitioner's familial relationship was at least one central reason for her persecution. Because of this, Petitioner had met at least two of the three requirements for asylum under 8 U.S.C. § 1101(a)(42)(A). The Fourth Circuit remanded the case to the Board of Immigration Appeals for a determination on the final factor.

Extended Summary: On August 27, 2012, Petitioner Zulma Savaleta- Policiano entered the United States through Texas. The next day she and her three children were served with a Notice to Appear pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner filed for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In support of these pleadings, Petitioner filed two notes she had received from members of MS-13, and a sworn affidavit.

In the affidavit, Petitioner stated that she was from a town in La Libertad and her father owned a wholesale store bearing the family name. Because of this her family was well-known in the region. Her father helped her open a convenience store after she was married and the convenience store was associated with her father's store. MS-13 infiltrated the town and began extorting her father for ever increasing amounts of cash. Petitioner's father eventually fled to Mexico. Immediately after he left, Petitioner began receiving threats from MS-13, both through telephone calls and notes. After being extorted for several months, Petitioner went to the police, who told her to watch out for her kids and to leave if she could.

Petitioner cited persecution related to three protected rights as a basis for asylum: (1) her familial relationship, (2) membership in the business-owning class in El Salvador, and (3) political opinion. At a hearing before an Immigration Judge (IJ), the Government stipulated to the credibility of Petitioner's affidavit and argued only that the facts alleged did not establish that she fell within a protected class. The IJ rejected the political opinion basis and the business-owning class basis. As to the rejection of Policiano's persecution claim based on her status as a business owner, the IJ reasoned that it was not a special group and if it was there was still no nexus between her membership in the group and the threats. The IJ also found that she was not threatened or harassed because of her relationship to her father. The IJ further denied her CAT claim. The Board of Immigration Appeals (BIA) affirmed the IJ's decision.

To be eligible for asylum, Petitioner had to prove that (1) she had suffered past persecution or "has a well-founded fear of persecution; (2) on account of a protected ground; (3) by an organization that the Salvadoran government is unable or unwilling to control." Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). The Fourth Circuit was bound to affirm the BIA unless its ruling was "manifestly contrary to law and an abuse of discretion." Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011).

The Fourth Circuit rejected the IJ and BIA conclusions that Petitioner had not been persecuted on account of her membership in the Policiano family. Persecution, the court held, occurs "'on account of' a protected ground if that ground serves as 'at least one central reason for'" the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). The protected ground need not be the central reason, but must be more than "incidental, tangential, superficial, or subordinate." Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). The Fourth Circuit found the BIA abused its discretion in upholding the IJ's factual finding. The court found the IJ and BIA relied too heavily on MS-13's "articulated purpose" for targeting Petitioner, as stated in the notes given to Petitioner. In addition, the IJ and BIA's reliance on the number of individuals targeted by MS-13 was "beside the point" in evaluating an individual claim. The court further found the IJ and BIA failed to appreciate or address critical, unchallenged evidence in the record. In particular, the record showed that Petitioner's father was threatened and fled; immediately thereafter the Petitioner was threatened; and soon thereafter Petitioner's daughter was threatened. Given these facts, the court found Petitioner's relationship with her father was "at least one central reason" for the persecution.

Because the IJ and BIA had not made a factual finding as to whether the persecution was by a group the Salvadoran government could not or would not control, the Fourth Circuit remanded for a finding on that issue. It noted that efforts to reach out to police are highly probative with regard to this requirement. The court also remanded for a factual finding on the Convention Against Torture claim.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Circuit Judge Wilkinson, and Senior Circuit Judge Davis

Argument Date: 03/23/2017

Date of Issued Opinion: 07/26/17, Amended 09/13/17

Docket Number: 16-1231

Decided: Reversed in part, vacated in part, and remanded for further proceedings by published opinion.

Case Alert Author: Jennifer Smith, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge, Virginia, for Petitioners. Michael Christopher Heyse, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 11:08 AM     4th Circuit     Comments (0)  

  United States v. Maclaren -- Fourth Circuit
The Sufficiency of Plausibility: Fourth Circuit Sets Pleading Standard for Adam Walsh Act Release Hearings

Areas of Law: Criminal Law, Statutory Interpretation

Issue Presented: What pleading standard should apply to an Adam Walsh Act detainee's motion for a discharge hearing under 18 U.S.C. § 4247(h).

Brief Summary: In a published opinion, the Fourth Circuit held that the district court erred by denying an Adam Walsh Act detainee's motion for a discharge hearing. A detainee's motion must allege with particularity the extent to which his psychological condition had improved while civilly committed. The Fourth Circuit vacated and remanded to the district court, explaining that a sufficient § 4247(h) motion for a discharge hearing need only allege enough facts to state a claim that is plausible on its face.

Extended Summary: In December 2009, the government classified Donald Maclaren as a sexually dangerous person pursuant to the Adam Walsh Act. In February 2013, a district court for the Eastern District of North Carolina found the government met its burden of proving Maclaren should be civilly committed pursuant to the Act. The court explained that the government proved 1) Maclaren engaged or attempted to engage in sexually violent conduct or child molestation; 2) suffers from a serious mental illness; and 3) as a result, would have trouble refraining from sexually violent conduct or child molestation if released.

However, debate surrounded the third factor: whether he would have difficulty refraining from further child molestation. Maclaren was fifty - four years old when he was incarcerated for child molestation. The court debated whether his age and physical impairments could prevent him from engaging in child molestation. The court ultimately decided no, and civilly committed him in the Federal Correctional Institution in Butner, North Carolina.

In October 2015, pursuant to 18 U.S.C. § 4247(h), Maclaren filed a motion requesting a hearing to determine whether he should be discharged under a conditional release plan. Maclaren submitted an expert report with the motion. The report explained why Maclaren qualified for conditional release: he would not have difficulty now refraining from child molestation. The report based its conclusion on the new edition of the DSM-V, which does not characterize child molestation as a life-long condition. The report also relied upon Maclaren's advanced age and deteriorating health. The government argued against the motion because Maclaren never specifically stated in his motion that he had made improvements in his mental condition while committed. The government also included an analysis of why Maclaren was still a sexually dangerous person.

A district court for the Eastern District of North Carolina denied the motion for a discharge hearing. The court ruled that a § 4247(h) motion must state with particularity the extent to which the detainee's psychological condition has improved. The court also invoked Maclaren's failure to provide information regarding a plan for treatment after release and unwillingness to participate in a treatment program during commitment as reasons for denial.

The Fourth Circuit began with statutory interpretation of the Adam Walsh Act. The court explained that § 4247 provides a mechanism for committed detainees under the Act to challenge their commitment: they can file a motion for a hearing; if a hearing is granted, the person has the opportunity to testify, present evidence, subpoena witnesses, and confront adverse witnesses at the hearing. The hearing court should order a discharge if it finds by a preponderance of the evidence that 1) the person is no longer sexually dangerous, or 2) the person will not be sexually dangerous if released under a prescribed treatment plan.

The court explained that while the Act specifies the evidentiary standard for the hearing (preponderance of the evidence), the Act remains silent on how courts should analyze the motion for a discharge hearing. The court noted that the issue before it represented an issue of first impression across the circuits. Because the Act places explicit evidentiary standards on the hearing, it would be redundant to require Maclaren to make the same evidentiary showing in the motion. The court interpreted the Act's permission for Adam Walsh detainees to file writs of habeas corpus as evidence that Congress did not intend similar strict procedural requirements to apply to § 4247 motions.

Rather, the court compared Maclaren's procedural posture to a civil plaintiff who files a complaint. The § 4247 motion is the vehicle for Maclaren's claim for a hearing to determine discharge in much the same way that a civil plaintiff's complaint is the vehicle to a trial to determine fault. Civil plaintiffs must plead with plausibility before a judge or jury examines the evidence - complaints must "contain sufficient factual matter, accepted as true, that states a claim of relief that is plausible on its face." Likewise, the court found the plausibility standard applies to § 4247 motions because that standard provides an adequate degree of scrutiny to analyze the motion's merits before the hearing.

The Fourth Circuit, therefore, vacated and remanded finding that the district court had imposed too strict of a pleading standard. The district court must now determine whether Maclaren's motion meets the plausibility standard.

To read the full opinion, click here.

Panel: Chief Judge Gregory and Circuit Judges Duncan and Diaz

Argument Date: 05/11/2017

Date of Issued Opinion: 08/02/2017

Docket Number: 16-6291

Decided: Vacated and remanded by published opinion.

Case Alert Author: Matthew Schofield, Univ. of Maryland Carey School of Law
Counsel: ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael Lockridge, BUREAU OF PRISONS, Butner, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Circuit Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 11:00 AM     4th Circuit     Comments (0)  

  Boggala v. Sessions -- Fourth Circuit
Grammar Rules the Day: Permanent Resident's Deportation Hinged on "The"

Areas of Law: Criminal, Immigration

Issue Presented: Whether a permanent resident's signed deferred prosecution agreement qualified as a "conviction" for deportation purposes.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the immigration judge correctly determined an undocumented sex offender was removable under the Immigration and Nationality Act ("INA") after he agreed to a deferred prosecution agreement. The Fourth Circuit found that the agreement constituted a conviction subject to the INA's removal process because the accused attended a confirmation hearing where he made factual admissions sufficient to warrant a finding of guilt.

Extended Summary: In 2009, Vijaya Boggala, a doctor originally from India, was granted permanent residency after he married a United States citizen. Three years later, Boggala initiated an online chatroom conversation with an undercover police officer, who posed as a fourteen-year old female. After Boggala suggested the two engage in sexual intercourse, they made plans to meet at a Greensboro parking lot. Shortly thereafter, Boggala was apprehended by police.

Boggala was charged with soliciting a minor to commit an unlawful sex act. Unlikely to succeed at trial, Boggala entered into a deferred prosecution agreement with state prosecutors. This agreement provided that the State would refrain from prosecuting the crime so long as Boggala participated in supervised probation and promised not to commit any future criminal acts. At the North Carolina Superior Court's confirmation hearing, the judge asked Boggala if he understood he was "admitting responsibility and stipulating to the facts to be used against" him. Boggala responded, "yes" and the agreement was confirmed. In February 2013, the Department of Homeland Security brought removal proceedings, contending that Boggala was "an alien convicted of a crime involving moral turpitude." The immigration judge found that Boggala was removable and that no exceptions applied. Boggala appealed and the Board of Immigration Appeals ("BIA") affirmed. Boggala then appealed to the Fourth Circuit.

The Fourth Circuit held that the immigration judge properly determined Boggala's deferred prosecution agreement qualified as a conviction because Boggala "admitted sufficient facts to warrant a finding of guilt" pursuant to 8 U.S.C. § 1101(a)(48)(A)(i).

The court first considered whether Boggala admitted any facts before and during the deferred prosecution process. Prior to signing the agreement, Boggala waived indictment by signing a packet of information. The packet contained details of the allegations in addition to the relevant facts at issue. Boggala then signed the deferred prosecution agreement which contained little to no information. Most importantly, at the deferred prosecution hearing, Boggala responded "yes" when the judge asked if Boggala understood he was "admitting responsibility and stipulating to the facts to be used against [him]." The court noted that while a deferred prosecution agreement is not "by itself a sufficient 'admission of facts,'" the judge's phrasing of the question made it sufficient because the judge referenced "the facts." The Fourth Circuit held the trial judge's use of the article "the" referenced "a stipulation to the facts contained in the" packet of information that Boggala initially signed when he waived indictment. According to the court, "the facts" could only relate to the packet since the packet was the only existing set of facts to even consider. Thus, the court determined Boggala admitted sufficient facts during the deferred prosecution hearing.

Next, the court held that the facts Boggala admitted were sufficient to warrant a finding of guilt, because the packet of information Boggala signed contained factual details demonstrating that each element of the crime was violated. As such, the court affirmed the immigration judge's decision, finding that Boggala was removable because his deferred prosecution qualified as a conviction under the INA.

Judge Diaz dissented, finding that Boggala's "yes" response at the deferred prosecution hearing did not constitute a stipulation of facts because the judge essentially read the agreement verbatim and if the agreement was not sufficient by itself, then neither was the hearing.

To read the full opinion, click here.

Panel: Judges Wilkinson, Floyd, and Diaz

Argument Date: 03/21/2017

Date of Issued Opinion: 08/09/2017

Docket Number: No. 16-1558

Decided: Decided by published opinion.

Case Alert Author: Jeremy Himmelstein, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Helen Parsonage, ELLIOT MORGAN PARSONAGE PLLC, Winston Salem, North Carolina, for Petitioner. Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Shelley R. Goad, Assistant Director, Jennifer A. Singer, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amici Curiae.

Author of Opinion: Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 09:40 AM     4th Circuit     Comments (0)  

  United States v. Chamberlain -- Fourth Circuit
Overruling Precedent - You Can Keep What's Yours...At Least Until Trial

Areas of Law: Criminal Law, Statutory Interpretation

Issue Presented: Whether Luis v. United States, 136 S. Ct. 1083 (2016), abrogates Fourth Circuit precedent interpreting 21 U.S.C. § 853 to authorize the pre-trial restraint of a criminal defendant's "substitute" (or "untainted") property.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit sitting en banc held that 21 U.S.C. § 853 does not authorize the restraint of a criminal defendant's substitute property prior to trial. The court reasoned that while the Supreme Court in Luis did not overrule Fourth Circuit precedent, the Luis Court emphasized that tainted and untainted assets are treated differently under Section 853, which provided the opportunity for the Fourth Circuit to review its precedent. The Fourth Circuit reexamined its precedent and found that Section 853 permits the government to obtain a pretrial restraining order over only those assets that are directly subject to forfeiture as property traceable to a charged offense, which the court refers to as "tainted property."

Extended Summary: Section 853 is the criminal forfeiture statute which provides for the forfeiture upon conviction of property associated with a defendant's crimes. Specifically, Section 853(a) provides for the forfeiture of tainted property, which is property derived from or used to commit the offense. Section 853(p) provides for the forfeiture of substitute property upon conviction. Substitute property is property of the defendant up to the value of the tainted property, when property identified under Section 853(a) is unavailable or has diminished in value. Section 853(e)(1)(A) "authorizes district courts to enter orders or take other necessary steps 'to preserve the availability of property described in Section 853(a)'" prior to trial.

In this case, Chamberlain allegedly participated in a conspiracy to defraud the government and conspired to steal approximately $200,000 of federal funds. The district court issued an order prohibiting the defendant from selling or otherwise disposing of a necklace worth $200,000 during the pendency of the proceedings against him. The government argued that the court's restraining order was proper under the Fourth Circuit's existing rule that the government may restrain a criminal defendant's substitute property prior to trial under 21 U.S.C. § 853(e)(1)(A). The court acknowledged that Section 853(e)(1)(A) only explicitly provides for the pretrial restraint of tainted property. However, the Fourth Circuit has broadly interpreted Section (e) to permit the pretrial restraint of both tainted and untainted assets prior to trial. See, e.g., United States v. Bollin, 264 F.3d 391 (4th Cir. 2001).

In 2016, the Supreme Court decided Luis v. United States. In that case, the Supreme Court held that "the Constitution prohibits the pretrial restraint of innocently-obtained [untainted] property when it is needed by a criminal defendant to obtain counsel." The Fourth Circuit emphasized that while Luis did not directly address whether Section 853(e)(1)(A) authorizes the pre-trial restraint of substitute property, the Court in that case did indicate "a firm distinction between the government's authority to restrain tainted and untainted assets" under Section 853. Additionally, the Fourth Circuit stated that all other circuits to consider the issue have "expressly rejected the reasoning underlying [the Fourth Circuit's] interpretation of Section 853(e)." The court further emphasized that "when Congress intends to permit the government to restrain both tainted and untainted assets before trial, it has clearly provided for such authority." For those reasons, the court overruled its precedent and held that 21 U.S.C. § 853(e)(1)(A) does not permit the pretrial restraint of substitute assets. Accordingly, the Court of Appeals for the Fourth Circuit vacated the district court's order.

To read the full opinion, click here.

Panel: Judges Gregory, Wilkinson, Niemeyer, Motz, Traxler, King, Shedd, Duncan, Agee, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris

Argument Date: 01/26/2017

Date of Issued Opinion: 08/18/2017

Docket Number: 16-4313

Decided: Affirmed by published opinion.

Case Alert Author: Taylor McAuliffe, Univ. of Maryland Carey School of Law

Counsel: Elliot Sol Abrams, CHESHIRE PARKER SCHNEIDER & BRYAN, PLLC, Raleigh, North Carolina, for Appellant. Stephen Aubrey West, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Samuel B. Hartzell, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Raleigh, North Carolina, for Appellant. Kenneth A. Blanco, Acting Assistant Attorney General, Trevor N. McFadden, Deputy Assistant Attorney General, James I. Pearce, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John Stuart Bruce, United States Attorney, G. Norman Acker, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Thomas K. Maher, NORTH CAROLINA OFFICE OF INDIGENT DEFENSE SERVICES, Durham, North Carolina; Ilya Shapiro, CATO INSTITUTE, Washington, D.C.; Abbe David Lowell, Scott W. Coyle, CHADBOURNE & PARKE LLP, Washington, D.C., for Amici Curiae.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 09:22 AM     4th Circuit     Comments (0)  

  United States v. Brown -- Fourth Circuit
Walks like a Duck, Talks like a Duck? Not for Mandatory Sentencing Guidelines Challenges Under Johnson

Areas of Law: Criminal Procedure, Habeas Corpus

Areas of Law: Criminal, Post-Conviction

Issue Presented: Whether the Supreme Court's decision in Johnson v. United States, which ruled the ACCA's residual clause void for vagueness, justified a habeas challenge to a sentence imposed under the then-mandatory sentencing guidelines.

Brief Summary: Petitioner Thilo Brown filed a § 2255 motion to vacate his sentence. That sentence had been imposed in 2003 pursuant to the pre-Booker, mandatory sentencing guidelines. The guidelines Petitioner was sentenced under contained language identical to another sentencing provision the Supreme Court had declared void for vagueness in 2015. See Johnson v. United States, 153 S. Ct. 2551 (2015). Relying upon Johnson, Petitioner challenged his sentence. Addressing the threshold matter of timeliness, Petitioner argued that his claim relied on the newly-recognized right from Johnson. The United States Court of Appeals for the Fourth Circuit held that Petitioner's claim was untimely because it did not fall within the ambit of the right newly recognized in Johnson. Thus, the Fourth Circuit affirmed the United States District Court for the District of South Carolina.

Extended Summary: Petitioner Thilo Brown pleaded guilty to drug and firearm related offenses in the United States District Court for the District of South Carolina in 2003. At sentencing, the District Court designated Petitioner a "career offender" based on two prior convictions that were deemed "predicates" justifying enhanced sentencing. Petitioner did not appeal.

Twelve years after Brown's conviction and sentence, the Supreme Court of the United States analyzed the constitutionality of the Armed Career Criminal Act's ("ACCA") residual clause. Johnson v. United States, 153 S. Ct. 2551 (2015). That clause, in conjunction with other language in the Act, provided enhanced penalties for people convicted of crimes "otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another." Though Brown was not sentenced under the ACCA, the language of the ACCA's residual clause was identical to the language in the mandatory guidelines that had been used to define Petitioner's relevant "predicates," and thus subject Petitioner to enhanced punishment.

Petitioner filed a § 2255 motion to vacate his sentence. Petitioner, through his motion, argued that he was improperly sentenced as a career offender because Johnson invalidated not only the ACCA's residual clause, but also like-worded sentencing clauses. The District Court denied Petitioner's motion with prejudice and declined to issue a certificate of appealability. The Fourth Circuit granted petitioner's certificate of appealability to decide whether, in light of Johnson, Petitioner was properly designated a "career offender."

As a threshold matter, the Fourth Circuit analyzed whether Petitioner's motion was timely. The court explained that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally imposes a one-year period for filing a § 2255 motion after a federal inmate's conviction has become final. Courts may, however, consider a § 2255 motion filed outside of that one year period if the motion is filed within one year of the Supreme Court recognizing a new right that applies to the inmate. Petitioner argued that his motion was timely filed because the Johnson decision recognized a new right that applied to him. Acknowledging that Johnson technically referenced only the ACCA, Petitioner argued that its holding applied to him because 1) Johnson recognized a defendant's due process right to be free from arbitrary sentencing provisions, 2) the Supreme Court had distinguished mandatory and advisory sentencing guidelines in United States v. Booker, 543 U.S. 220 (2005), and 3) Beckles v. United States, 137 U.S. 886 (2017), which rejected the application of Johnson to sentences imposed under advisory guidelines, left sentences imposed under the mandatory sentencing guidelines open to challenge.

The Fourth Circuit rejected Petitioner's contention. Constrained by AEDPA's language, the court explained that a right could not be newly recognized as applying to a litigant if the right could only be said to leave the litigant's claim open. Additionally, looking to Beckles, the Fourth Circuit reasoned that "quacking like the ACCA" is not enough to bring a challenge within the purview of the right recognized by Johnson." In Johnson, according to the Fourth Circuit, the Supreme Court only rendered the ACCA's residual clause unconstitutionally vague - it did not opine on similar language in the mandatory sentencing guidelines. Thus, the Fourth Circuit concluded that the Supreme Court has not recognized Petitioner's claimed right. The court held that Petitioner's claim was therefore untimely, and affirmed the District Court's ruling.

Chief Judge Gregory, in his dissent, explained that the Fourth Circuit should not have constrained itself to the four corners of the Supreme Court's Johnson opinion. Rather, in Chief Judge Gregory's view, the court should have understood the right in Johnson to include the reasoning and principles that explain it. According to the Chief Judge, the fact that the clause Petitioner challenged was derived from the mandatory sentencing guidelines rather than the ACCA was a distinction without a difference. He concluded that Petitioner's claim was timely because Petitioner asserted the right newly recognized in Johnson.

To read the full opinion, click here.

Panel: Chief Judge Gregory, and Judges Duncan and Diaz

Argument Date: 05/11/2017

Date of Issued Opinion: 09/21/2017

Docket Number: No. 16-7056

Decided: Affirmed by published opinion.

Case Alert Author: Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: Alicia Vachira Penn, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. William Camden Lewis, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, Columbia, South Carolina, Marshall Taylor Austin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Duncan

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 09:14 AM     4th Circuit     Comments (0)  

October 26, 2017
  Contest Promotions, LLC v. City and County of San Francisco
Headline: Ninth Circuit panel holds Article 6 of San Francisco's Planning Code distinguishing commercial and noncommercial signs and exempting noncommercial signs from regulation does not violate the First Amendment.

Areas of Law: Constitutional Law; First Amendment; Commercial Speech

Issue Presented: Whether Article 6 of San Francisco's Planning Code violates the First Amendment by distinguishing between commercial signs and noncommercial signs, and exempting noncommercial signs from the rule's scope?

Brief Summary: The Ninth Circuit panel affirmed the district court's dismissal of an action brought under 42 U.S.C. § 1983. Plaintiff-Appellant Contest Promotions, LLC, a business engaged in outdoor commercial advertising, challenged the constitutionality of Article 6 of San Francisco's Planning Code because it exempted noncommercial signs. The Ninth Circuit panel rejected Appellant's argument for a greater level of scrutiny than intermediate scrutiny. It then applied the four-step analysis announced by the United States Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission to hold Article 6 survived intermediate scrutiny.

Significance: The Ninth Circuit panel held Article 6 did not violate the First Amendment by distinguishing between commercial and noncommercial signs, and by exempting noncommercial signs from regulation.

Extended Summary: Plaintiff-Appellant, Contest Promotions, LLC, ("Appellant") is engaged in the business of renting advertising space from businesses in cities. The advertising is done by placing third-party advertising signs that prompt persons to enter the business and win a prize related to the sign. Defendant-Appellee City and County of San Francisco ("the City") controls outdoor advertising through Article 6 of San Francisco's Planning Code ("Article 6"). Article 6 regulates outdoor advertising for several reasons, including promoting aesthetic and environmental values, protecting public investment in and the character and dignity of public buildings, streets, and open spaces, protecting the distinctive appearance of the city, and reducing hazards to motorists, bicyclists, and pedestrians.

The Planning Code distinguishes between "general advertising signs" and "business signs." A general advertising sign directs attention to a business, commodity, industry or other activity which is sold, offered or conducted elsewhere than on the premises upon which the sign is located, while a business sign relates to similar activity conducted on the premises. It exempts noncommercial signs which are defined in Article 6 by a non-exhaustive list. These include governmental signs, official public notices, temporary display posters, and flags. No other definition is provided in the Planning Code regarding noncommercial signs.

There is no dispute that Appellant's signs are "commercial" pursuant to Article 6. Appellant sued the San Francisco, alleging that the Code section violates the First Amendment by exempting noncommercial signs from it regulatory ambit. The district court granted the City's motion to dismiss, and this appeal followed.

The Ninth Circuit panel first determined the level of scrutiny that applies to Article 6. While Appellant argued for a higher standard of scrutiny than intermediate scrutiny, citing Sorrell v. IMS Health Inc., 564 U.S. 442 (2011), the panel rejected Appellant's argument and held that Sorell did not mark a fundamental departure from the four-step test announced Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980).

Next, the Ninth Circuit panel undertook an analysis of Article 6 in light of the Central Hudson four-step test. The first step is whether the speech concerns lawful activity and is not misleading. The court concluded Appellant's advertisements were lawful and not misleading. The second step is whether the asserted governmental interest is substantial. The panel found that the City's interests in safety and aesthetics are substantial.

If the first two parts of the standard yield positive answers, Central Hudson directs that a court make two additional inquiries. The third, step is whether the regulation directly advances the governmental interest asserted. The fourth step is to guard against over-regulation rather than under-regulation.

Appellant argued that Article 6 was unconstitutional because it failed the last two steps of the Central Hudson analysis. It argued Article 6 is more extensive than necessary to serve the City's interest because it exempts noncommercial signs for purposes which are too tenuous to Appellee's claimed interests in "safety and aesthetics." Appellant cited City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) as authority. However, the Ninth Circuit panel distinguished Discovery Network from the case at bar. In Discovery Network, the challenged city ordinance completely prohibited the distribution of commercial handbills using newsracks in public places while there was no prohibition on distributing noncommercial handbills in the same way. The record showed the number of newsracks dispensing commercial handbills was "minute" compared with the total number. The Supreme Court held that the ordinance's distinction between commercial and noncommercial speech had no relationship whatsoever to the city's legitimate interest in safety and aesthetics.

In the instant case, the Ninth Circuit panel determined Article 6 is not constitutionally underinclusive. The text of Article 6 expresses that it is intended to address the problems of the increased size and number of general advertising signs that contributed to blight and clutter and the commercialization of public spaces. The panel found that the legislative purpose to regulate specific commercial signs has a substantial effect on its interest in safety and aesthetics.

The also Ninth Circuit panel rejected Appellant's claim that Article 6 inappropriately discriminated against commercial speech based on the ground that commercial speech deserves less protection that noncommercial speech. The court recognized that the purpose of Article 6 is to address the unique risks to the city's interests that commercial signs pose.

Lastly, the Ninth Circuit panel held a law need not fit perfectly and completely with an identified problem to survive intermediate scrutiny. It found that the distinctions drawn between commercial and noncommercial speech directly advance the city's substantial interests. Thus, the Ninth Circuit panel concluded Article 6 survived intermediate scrutiny and affirmed the district court's dismissal of Appellant's claims

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/da...17/08/16/17-15909.pdf

Panel: Susan P. Graber and Michelle T. Friedland, Circuit Judges, and Consuelo B. Marshall, District Judge.

Argument Date: July 12, 2017

Date of Issued Opinion: August 16, 2017

Docket Number: 17-15909

Decided: Affirmed

Counsel: Michael F. Wright (argued), Los Angeles, California, for Plaintiff-Appellant.
James M. Emery (argued) and Victoria Wong, Deputy City Attorneys; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendant-Appellee.

Author of Opinion: Circuit Judge Graber

Circuit: Ninth

Case Alert Author: Erik Wu

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/26/2017 04:35 PM     9th Circuit     Comments (0)  

  Mendoza v Nordstrom, Inc.
Headline: Ninth Circuit panel rejects employee claims brought pursuant to the California Labor Code Private Attorneys General Act ("PAGA") that the employer violated the State's "day of rest law" and affirms the district court's decision refusing to allow substitute plaintiffs.

Areas of Law: Employment Law; Civil Procedure

Issues Presented: Whether the district court erred in holding employees did not have a valid claim for violation of California's "day of rest" law?
Whether the district court abused its discretion by refusing to allow substitute plaintiffs and dismissing the case?

Brief Summary: The Ninth Circuit panel held that the district court properly dismissed the hourly, non-exempt former employees' suit against their employer under PAGA, Cal. Lab. Code §§ 2698-2699.5, for violation of California's "day of rest" laws, Cal. Lab. Code §§ 551 and 552. The court relied on responses to questions certified to the California Supreme Court to hold the employees were not "aggrieved" under the requirements of Cal. Lab. Code § 2699.3 where neither employee worked more than six consecutive days in any one work week and the employer did not "cause" the employees to work more than seven consecutive days. Because there was no coercion, the employees waived their rights under § 551 by accepting additional shifts when they were offered. Finally, the panel held the district court was not obligated to permit the addition or substitution of plaintiffs under Fed. R. Civ. P. 21.

Significance: This case clarifies the meaning and application of California's day of rest law. It also reveals that a district court does not abuse its discretion in denying a request to add substitute representatives in a PAGA action when the proposed substitutes have not exhausted administrative remedies and where the plaintiffs declined the opportunity to add substitute representatives well before trial.

Extended Summary: Christopher Mendoza ("Mendoza") and Meagan Gordon ("Gordon") are former employees of Nordstrom, Inc. ("Nordstrom") who claim the employer violated California's day of rest law. Mendoza was not originally schedule to work more than six consecutive days, but he did so after being asked to fill in for another employee. Gordon worked more than six consecutive days; however, on two of those days, she worked less than six hours.

Mendoza filed suit on behalf of a class of similarly situated hourly, non-exempt Nordstrom employees in California state court alleging that Nordstrom violated California Labor Code sections 551 and 552 by not providing him with one day's rest in seven work days. The relevant claim was brought pursuant to PAGA. See Cal. Lab. Code §§ 2698-2699.5. Nordstrom removed the action to federal court. Gordon intervened alleging the same causes of action as those in Mendoza's complaint.

The district court dismissed the PAGA action and the Ninth Circuit affirmed. The panel based its decision on responses to certified questions it presented to the California Supreme Court. Mendoza v. Nordstrom, Inc., 393 P.3d 375 (Cal. 2017). First, the Supreme Court held that "[a] day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited." Mendoza 393 P.3d at 377.
Second, it held that the exemption for employees applies when an employee does not exceed six hours of work during a workweek. If during a workweek the employee does work more than six hours, then a days of rest is required. Mendoza 393 P.3d at 377. Lastly, the California Supreme Court held that an employee may elect, independently, not to take their day of rest. Mendoza 393 P.3d at 377. The Ninth Circuit panel applied the responses to the facts and held neither Mendoza nor Gordon had a valid claim.

The Ninth Circuit also upheld the district court's decision not to permit the addition of new PAGA representatives who did suffer violations of the day of rest law and allow the litigation to continue. It held that even if the new plaintiffs were aggrieved employees, they would have to exhaust their claims administratively before bringing a PAGA action of their own. Moreover, the plaintiffs did not attempt to add other representatives, even after the district court asked them if they wished to do so well before trial. After noting that a PAGA suit is fundamentally different than a class action, the panel held the district court did not abuse its discretion in refusing to permit substitute or additional parties.

For these reasons, the Ninth Circuit panel affirmed the district court's decision dismissing the case.

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/08/03/12-57130.pdf

Panel: Susan P. Graber, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges.

Argument Date: December 12, 2014

Date of Opinion: August 3, 2017

Docket Numbers: No. 12-57130, No. 12-57144

Decided: Affirmed.

Counsel: André E. Jardini (argued) and K.L. Myles, Knapp Petersen & Clarke, Glendale, California, for Plaintiff-Appellant.

R. Craig Clark (argued) and James M. Treglio, Clark Law Firm, San Diego, California; David R. Markham, The Markham Law Firm, San Diego, California; for Plaintiff-Intervenor-Appellant.

Julie A. Dunne (argued), Dawn Fonseca, and Joshua D. Levine, Littler Mendelson P.C., San Diego, California, for Defendant-Appellee.

Author of Opinion: Judge Graber

Circuit: Ninth Circuit

Case Alert Author: Blaine Brown

Case Alert Supervisor: Professor Philip L. Merkel

    Posted By: Glenn Koppel @ 10/26/2017 12:04 PM     9th Circuit     Comments (0)  

  Hoag Memorial Hospital v. Price
Headline: Ninth Circuit holds that the Secretary of the U.S. Department of Health and Human Services violated 42 U.S.C. §1396(a)(30)(A) and acted in an arbitrary and capricious way in approving a retroactive 10% reduction in payments for outpatient services provided to California's Medi-Cal program beneficiaries.

Areas of Law: Medicaid; Administrative Law; Social Security

Issue Presented: Whether the Secretary's approval of an amendment to California's Medi-Cal program was arbitrary and capricious where there was no evidence comparing the availability of health care providers to Medi-Cal beneficiaries and the general population as required by 42 U.S.C. §1396(a)(30)(A).

Brief Summary: The Ninth Circuit reversed and remanded the district court's grant of summary judgment in favor of the Secretary that approved the Secretary's decision to implement a retroactive 10% reduction for outpatient services for Medi-Cal beneficiaries. The panel found the Secretary's decision was not entitled to Chevron deference and that he acted arbitrarily capriciously by failing to consider whether §30(A)'s express requirement of equal access to medical services would be satisfied.

Extended Summary: California requested the Secretary to approve a state plan amendment (SPA) to its Medi-Cal program that would authorize a retroactive 10% reduction for outpatient services for Medi-Cal beneficiaries. The Secretary initially declined approving the SPA because California did not provide information concerning the impact of the proposed reductions on beneficiary access to services. The state resubmitted the SPA and provided information on provider participation in Medi-Cal and beneficiary use of hospital outpatient services over a three-year period. The Secretary later approved the resubmitted SPA and found the State was in compliance with § 30(A).

A group of 57 hospitals that provide outpatient services to Medi-Cal beneficiaries filed a suit challenging the Secretary's approval of the SPA on a number of grounds, including that the record lacked evidence regarding the comparative level of access available to Medi-Cal beneficiaries and the general population. The district court granted summary judgment for the Secretary. The court held that the Ninth Circuit decision in Managed Pharmacy Care v. Sebelius, 716 F.3rd 1235 (9th Cir. 2013), controlled, and the court was required to defer to the Secretary's approval of the SPA. It went on to find that § 30(A) does not specify any particular procedures required for obtaining an approval of an amendment. This appeal followed.

The Ninth Circuit reversed and remanded the case to the district court. The panel discussed whether the Secretary's decision was entitled to Chevron deference. It held that where Congress had unambiguously expressed its intent in a statute, a conflicting administrative agency decision is not entitled to such deference. Because § (30)(A) specifically requires that a SPA must be structured so care and services are available to beneficiaries to at least the same extent as they are available to the general public, the Secretary acted arbitrarily and capriciously by approving the SPA without evidence addressing the equal access requirement. The panel found the Secretary could not have determined the equal access requirement where the evidence did not include any information regarding what services were available to the general population.

The panel also distinguished this case from Managed Pharmacy Care, one that also involved §30(A). In Managed Care, the specific question was whether the Secretary must take provider costs into consideration before approving a rate-reducing SPA. The Ninth Circuit held in Managed Care that where a statute does not describe the specific steps a state must take to meet a standard, the agency is not required to follow a fixed methodology and its decision is entitled to Chevron deference. The instant case is different because the express language of § 30(A) requires a comparison of the availability of provider care to Medi-Cal beneficiaries with that of the general population.

The panel remanded the case to the district court.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...17/08/07/15-56547.pdf

Panel: Milan D. Smith, Jr. and N.R. Smith, Circuit Judges, and Gary Feinerman, District Judge.

Argument Date: April 5, 2017

Date of Issued Opinion: August 7, 2017

Docket Number: 15-56547

Decided: Reversed and Remanded

Case Alert Author: Samantha K. Pruett

Counsel: Robert C. Leventhal (argued) and A. Joel Richlin, Foley & Lardner LLP, Los Angeles, California, for Plaintiffs-Appellants.

Jeffrey Eric Sandberg (argued), Lindsey Powell, and Mark B. Stern, Attorneys, Appellate Staff; Eileen M. Decker, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

Author of Opinion: Judge Milan D. Smith, Jr.

Circuit: Ninth Circuit

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 10/26/2017 11:58 AM     9th Circuit     Comments (0)  

October 18, 2017
  Ganek v. Leibowitz - Second Circuit
Headline: Second Circuit Reverses Denial of Qualified Immunity and Dismisses Case Against FBI Agents and Federal Prosecutors Seeking Damages Arising From Alleged Improper Search of Manhattan Investment Fund
Area of Law: Constitutional

Issue(s) Presented:
Whether defendant federal agents and prosecutors were entitled to qualified immunity from plaintiff's damages suit alleging Fourth and Fifth Amendment violations arising from defendants' having procured and executed a federal search warrant of the plaintiff's investment fund office secured by a supporting affidavit containing a false statement.

Brief Summary: David Ganek, cofounder of the now-closed Manhattan-based Level Global (LG) Investors investment fund, sued several named Federal Bureau of Investigation ("FBI") agents and federal prosecutors from the Southern District of New York for damages resulting from alleged violations of his Fourth and Fifth Amendments arising from their procuring and executing a federal search warrant of his LG office as part of a 2010 insider trading probe. The defendants moved to dismiss Ganek's claims in the United States District Court for the Southern District of New York on the grounds that they were protected from liability for damages by qualified immunity. The district court denied the dismissal on all but two of Ganek's claims, rejecting the agents' and prosecutors' claims of qualified immunity on most of the claims. On timely appeal, the Second Circuit reversed the district court's ruling, holding that the agents and prosecutors were, in fact, entitled to qualified immunity on the remaining claims.

To read the full opinion, please visit:
">http://www.ca2.uscourt.../de.....0/1/hilite/


Extended Summary: David Ganek is a co-founder of the now-defunct multi-billion dollar New York-based Level Global (LG) Investors investment fund. In October 2010, Spyridon Adondakis, a research analyst who had been employed by LG until his dismissal just months earlier, was approached by three FBI agents, defendants in this case, with wiretap evidence that they alleged proved he was guilty of engaging in insider trading while he was still employed at LG. Adondakis admitted to knowingly participating in insider trading and subsequently sharing that sensitive information with three employees at LG, including Ganek. Adondakis agreed to cooperate with the federal authorities and subsequently met with the FBI agents and two Assistant United States Attorneys (AUSAs), also defendants here. In that meeting, Adondakis told the prosecutors and agents that he provided inside information to LG co-founder Anthony Chiasson, Ganek, and a third employee. Adondakis further stated that he informed Chiasson and the third employee that the information he was providing to them came from an inside source, however, he explicitly stated that he did not tell Ganek the source of this information.

In November 2010, FBI agent defendants applied to a Southern District of New York Magistrate Judge for a warrant to search LG offices. The affidavit submitted in support of the warrant application included the misstatement that Adondakis had informed Ganek, as well as the other two LG employees, that the information he was conveying to him was from inside sources, despite Adondakis's statements to the agents to the contrary as to Ganek. The magistrate judge authorized the warrant and on November 22, 2010, federal agents executed its search of the LG office, including a search of Ganek's office, computer and telephone. In subsequent exchanges with AUSAs involved in the investigation, named here as defendants, as well as with United States Attorney Preet Bharara, also a named defendant, LG representatives expressed concern that the search would cause investors to withdraw from the fund and asked that the prosecutor's office issue a statement that Ganek was not a target of the probe and that the office search did not constitute probable cause that Ganek engaged in insider trading. That request was denied and LG representatives were told that the search with initiated with full consideration at the highest levels of the possible financial consequences to LG. Co-founder Chiasson was subsequently tried and convicted of securities fraud based upon insider trading, with Adondakis testifying as a cooperating witness at his trial. Ganek was never charged with insider trading, however, in February 2011 he closed the LG fund due, he said, to the flight of investors.

In February 2015, Ganek filed this complaint in the United States District Court for the Southern District of New York seeking money damages to recover the loss in value of the LG fund. In it, he charged named FBI agents and federal prosecutors with Fourth and Fifth Amendment violations arising from improperly procuring and executing the 2010 search warrant, alleged failure-to-intercede claims against all defendants, and asserted a claim for supervisory liability against specific named AUSAs and United States Attorney Bharara. Specifically, Ganek alleged that procuring and ultimately executing the office search pursuant to a supporting affidavit falsely stating that Ganek had been told by Adondakis that the information was from inside sources constituted an unreasonable search and seizure under the Fourth Amendment as well as the deprivation of property without due process in violation of the Fifth Amendment. Defendants moved to dismiss all of Ganek's claims on the theory that they were protected from suit by qualified immunity. The district court denied the motion as to all but two of Ganek's claims. On appeal, the Second Circuit reversed the lower court's finding, ruling that the defendants were entitled to qualified immunity and remanding the case for dismissal.

Qualified immunity is meant to protect law enforcement officers from claims for money damages in connection with carrying out their professional duties. A plaintiff may circumvent this protection and move forward with their claims if he or she is able to plead facts showing that "the official violated a statutory or constitutional right;" and "that the right was clearly established at the time of the challenged conduct." The Second Circuit found, in this case, that Ganek failed to plead facts supporting a Fourth Amendment unreasonable search and seizure claim or a Fifth Amendment claim of deprivation of property without due process because a hypothetical corrected affidavit would nevertheless have supported probable cause for the search warrant. The court reasoned specifically that, even assuming the statement that Ganek had been told Adondakis's information came from insider sources in the affidavit was false, that statement was not central to finding probable cause for the search and therefore there was no constitutional violation. The Court further found that, because Ganek's Fourth and Fifth Amendment claims failed, his failure to intercede claim must also fail. Lastly, the Court ruled that the Ganek did not provide sufficient facts to prove that the named supervisors had enough personal involvement with the submission of the misstatement to the magistrate judge for the search warrant to support allegations for supervisory liability.

To read the full opinion, please visit:
">http://www.ca2.uscourt.../de.....0/1/hilite/


Panel: Judges Raggi, Chin, and Carney

Argument Date:
3/24/2017

Argument Location: New York, NY

Date of Issued Opinion:
10/17/2017

Docket Number: No. 16-1463-cv

Decided:
Reversed and Remanded

Case Alert Author:
Ollia Pappas

Counsel:
Nancy Gertner (Anna Benvenutti Hoffmann, Barry Scheck, Nick Brustin, Farhang Heydari, Alexandra Lampert, Rick Sawyer, on the brief); Neufeld Scheck & Brustin, LLP for Plaintiff-Appellee; Sarah S. Normand (Andrew E. Krause, Jeffrey S. Oestericher, Assistant United States Attorneys, on the brief), Assistant United States Attorney for Joon H. Kim, Acting United States Attorney for the Southern District of New York, for Defendants-Appellants.

Author of Opinion: Judge Raggi

Case Alert Circuit Supervisor: Professor Elyse Diamond

Edited: 10/18/2017 at 01:47 PM by Elyse Diamond

    Posted By: Elyse Diamond @ 10/18/2017 09:55 AM     2nd Circuit     Comments (0)  

October 17, 2017
  Secretary United States Department of Labor v. American Future Systems, Inc. d/b/a Progressive Business Publications, a
Headline: Employers are required to compensate employees for all rest breaks of twenty minutes or less.

Area of Law: Labor and Employment Law

Issue(s) Presented: Is an employer, who permits employees to take breaks during working hours for any reason, required under the Fair Labor Standards Act to compensate employees for any breaks of twenty minutes or less.

Brief Summary: The Fair Labor Standards Act requires employers to compensate their employees for any break periods of twenty minutes or less. American Future Systems d/b/a Progressive Business Publications (Progressive), and its President, Edward Satell, instituted a "flex time" policy in which employees were entitled to log off of their computers throughout the work day at will and for any reason. However, employees were only compensated for the time spent logged in. Progressive did not consider its employees' "flex time" as a "break," and argued that it was therefore not a violation of the FLSA to deny compensation. The Third Circuit held that Progressive's "flex time" did constitute breaks, and that it was required to compensate employees for any breaks of twenty minutes of less. Furthermore, the Third Circuit awarded liquidated damages for the compensation that Progressive had failed to pay its employees.

Extended Summary: Progressive distributes business publications, which it sells through sales representatives. Its sales representatives are paid an hourly wage and they are evaluated on their performance while logged in to the system. They receive extra compensation and bonuses based on sales rates per hour. They are also expected to maintain a certain sales rate per hour while logged in or can be disciplined or even sent home for the day. In 2009, Progressive transitioned from a break policy in which employees received two fifteen-minute breaks per day to a "flex time" system. Under the new system, employees were allowed to take "flex time" at will for any reason simply by logging off the system. This "flex time" included using the bathroom or taking a coffee break. There was no limit set on the duration; however, once the employee was logged off for more than ninety seconds, he was considered on "flex time." Furthermore, employees were only compensated for time that they were logged in to the system; they were not compensated for "flex time."

Under the new system, employees were also required to estimate their expected working hours over a two-week period. Employees could choose to work anytime Monday-Friday between the hours of 8:30-5:30. Employees could not work more than forty hours per week, and they were required to meet their estimated goals. Under that system, the average employee was only compensated for just over five hours per day at the federal minimum wage of $7.25/hour.

The Secretary of the United States Department of Labor brought this lawsuit on behalf of Progressive's employees for violation of the Fair Labor Standards Act, which requires employers to compensate employees for all breaks of twenty minutes or less. The district court granted partial summary judgment to the Secretary on its claim that Progressive's employees were denied federal minimum wages through the failure to compensate break times of twenty minutes or less. The district court also granted liquidated damages in an equal amount for the compensation Progressive withheld from its employees. In so doing, the district court applied the Department of Labor, Wage and Hour Division's ("WHD") interpretation of the FLSA. Under that interpretation, breaks of five to twenty minutes are viewed as "common in the industry," "promote the efficiency of the employee," and are "customarily paid." As such, breaks of twenty minutes or less must be compensated and count as working hours.

On appeal, Progressive claimed that its "flex time" hours were not breaks. It argued that employees are not working unless they are logged into the system. Its employees are free to log out at any time for any duration; when employees log back in, they are back at work. The Third Circuit held that this view of "work" conflicts with the purpose of the FLSA. The FLSA requires employers to compensate employees for "hours worked," but does not define "work." The flex time provided for by Progressive, however, is clearly a "break" under the FLSA. The Court explained that, under Progressive's system, employees are forced to choose between being compensated for working hours and satisfying basic needs, such as using the bathroom, which would require more than ninety seconds.

Next, Progressive argued that the WHD's interpretation was given too much deference by the district court. However, the Third Circuit agreed with the district court's reliance on the WHD for several reasons. First, the WHD's interpretation was ratified by Congress in 1940. Second, the Department of Labor has consistently relied on the WHD's interpretation for over 46 years. Third, the Third Circuit found the interpretation to reasonable based on the language of the FLSA.

Finally, Progressive argued that the district court's reliance on 29 C.F.R. § 785.18 - which states that employees must be compensated for breaks of twenty minutes or less - as a bright-line rule was wrong. Progressive argued that 29 C.F.R. § 785.16 is more applicable. Under § 785.16, periods during which employees are "completely relieved of duties" and for personal reasons are not considered working hours. The Third Circuit disagreed. It noted that § 785.16 is a general section and § 785.18 is more narrowly defined to specifically address breaks of twenty minutes or less. Furthermore, such breaks are viewed by the WHD as time that improves the effectiveness of workers. Therefore, the short breaks are as much for the benefit of employers as they are personal in nature.

Progressive then claimed that allowing employees to take paid breaks under its flex-time system would lead to employees taking an unlimited number of nineteen-minute breaks throughout the day. The Third Circuit reasoned that proper recourse for such action by an employee was discipline or termination, not withholding of wages. Finally, the Third Circuit also affirmed the district court's award of liquidated damages equal to the compensation withheld.
The Third Circuit, thus, affirmed the judgment of the district court.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/162685p.pdf

Panel: McKee, Rendell, Fuentes, Circuit Judges

Argument Date: February 9, 2017

Date of Issued Opinion: October 13, 2017

Docket Number: No. 16-2685

Decided: Affirmed

Case Alert Author: Michael R. DeAngelo

Counsel: Alfred W. Putnam, Jr., Esq, Dorothy A. Hickok, Esq., Sarah E. Bouchard, Esq., and Lincoln O. Bisbee, Esq. for Appellant; M. Patricia Smith, Esq., Jennifer S. Brand, Esq., Paul L. Frieden, Esq., and Rachel Goldberg, Esq. for Appellee; Jonathan S. Krause, Esq. for Amicus-Appellant; Margaret W. Williamson, Esq. for Amicus-Appellee

Author of Opinion: McKee, Circuit Judge

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/17/2017 12:34 PM     3rd Circuit     Comments (0)  

October 10, 2017
  Paul Richard McGann v. Cinemark USA, Inc. - Third Circuit
Headline: A movie theater's failure to provide tactile interpretation to a deaf and blind patron constitutes a denial of the "full and equal enjoyment of the goods and services" of a "place of public accommodation" under the ADA.

Area of Law: Americans with Disabilities Act ("ADA")

Issue(s) Presented: Does a movie theater's failure to provide a deaf and blind patron with a tactile interpreter so he can experience a film in one of its theaters constitute a Title III of the ADA "special prohibition" regarding auxiliary aids and services and thus violates Title III's "general rule" that no individual shall be denied "full and equal enjoyment of the goods and services" of "a place of public accommodation?"

Brief Summary: Paul McGann, who is disabled within the meaning of the ADA, requested from Cinemark USA, Inc. an American Sign Language ("ASL") tactile interpreter so that he could experience a movie in his local Cinemark theater. Cinemark denied his request and McGann filed suit, claiming Cinemark violated Title III of the ADA, which requires public accommodations, such as movie theaters, to furnish auxiliary aids and services, which include qualified interpreters.
The ADA defines "auxiliary aid or service" to include a qualified interpreter. Furthermore, the Department of Justice ("DOJ") technical assistance materials, which provide implementation guidance on the ADA, specifically include tactile interpreters in the definition of auxiliary aids. Therefore, the Third Circuit found that an ASL tactile interpreter was a qualified interpreter under Title III of the ADA.
Next, the Third Circuit found that the entertainment service Cinemark provides includes furnishing auxiliary aids and services so that patrons with disabilities can have the economic and social experience of viewing a movie in a theater. According to the Third Circuit, a legislative purpose of the ADA is to allow individuals with disabilities to experience "mainstream American life," such as seeing a movie in a theater. Therefore, in denying McGann's request for an ASL tactile interpreter, Cinemark excluded or denied him from Cinemark's services.
Lastly, the Third Circuit determined that Cinemark's first defense failed, finding that a tactile interpreter would not "fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered" since the video, audio or physical experience of the movie would not be altered by the interpreter. The Third Circuit remanded the case to the district court for a factual determination of Cinemark's "undue burden defense" and vacated the district court's judgment in favor of Cinemark.

Extended Summary: Paul McGann, who is blind and deaf, requested from Cinemark USA, Inc. an ASL tactile interpreter so that he could experience a movie in his local Cinemark theater. Cinemark denied his request and McGann filed suit, claiming Cinemark violated Title III of the ADA. Title III of the ADA requires public accommodations, including movie theaters, to furnish auxiliary aids and services, which include qualified interpreters.
First, the Third Circuit established that there was no dispute that McGann is disabled within the meaning of the ADA and that Cinemark is a public accommodation under Title III of the ADA. Second, the Third Circuit considered whether McGann's requested ASL tactile interpreter was an "auxiliary aid or service." The ADA defines "auxiliary aid or service" to include a qualified interpreter. The Third Circuit noted an ASL tactile interpreter is a "qualified interpreter." Additionally, the Department of Justice ("DOJ") technical assistance materials, which are included in the DOJ implementing regulations for communicating with individuals who have vision, hearing, or speech disabilities, specifically mention tactile interpreters as auxiliary aids. Therefore, the Third Circuit found that an ASL tactile interpreter falls within the definition of an auxiliary aid or service under Title III.
Next, the Third Circuit considered whether Cinemark's failure to provide tactile interpretation of the movie excluded McGann from or denied him Cinemark's services. The Third Circuit reasoned that entertainment venues, such as movie theaters, provide an entertainment service to the public. That entertainment service includes selecting a movie of interest, purchasing a ticket to the movie, navigating to the correct auditorium, and providing auxiliary aids or services. The Third Circuit looked to Congress' intent in enacting the ADA, which was to address the "compelling need to integrate individuals with disabilities into the economic and social mainstream of American life." According to the Third Circuit, presenting movies in a theater and having the ability and opportunity to experience a movie "is a component of the social mainstream of American life." The Third Circuit reasoned that providing McGann with a tactile interpreter for a movie supports Congress' legislative intent. Thus, the Third Circuit concluded that a denial of McGann's request for a tactile interpreter excluded him or denied him from Cinemark's services, which is a violation of Title III of the ADA.
Having established that Title III's auxiliary aids and service requirement applies to McGann's request for a tactile interpreter, the Third Circuit analyzed Cinemark's defenses. Title III does not require a public accommodation to furnish a requested auxiliary aid or service if doing so would "fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered" or "would result in an undue burden." The Third Circuit found that because tactile interpretation of a movie does not require any changes to the physical environment or video or audio content of the movie, it does not significantly alter the essential nature of the services. Lastly, the Third Circuit evaluated Cinemark's undue burden defense, which under the DOJ regulations instructions of Title III include "significant difficulty or expense." The Third Circuit remanded the determination of this defense to the district court due to its fact-intensive nature.
The Third Circuit, thus, vacated the district court's entry of judgment for Cinemark and remanded the case for consideration of Cinemark's undue burden defense.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/162160p.pdf

Panel: Smith, Chief Judge, McKee and Restrepo, Circuit Judges

Argument Date: November 10, 2016

Date of Issued Opinion: October 6, 2017

Docket Number: No. 16-2160

Decided: Vacated and remanded

Case Alert Author: Katherine A. Osevala

Counsel: Carol A. Horowitz and Jeffrey M. Skakalski, counsel for Appellant; M. Brett Burns, Bridget J. Daley and Brian H. Simmons, counsel for Appellee; Vanita Gupta, Tovah R. Cadleron and Bonnie I. Robin-Vergeer, counsel for Amicus Curiae United States of America

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/10/2017 03:12 PM     3rd Circuit     Comments (0)  

October 4, 2017
  In Re Asbestos Products Liability Litigation - Third Circuit
Headline: Third Circuit Holds That Manufacturer Can be Held Liable for Asbestos-related Injuries When the Injury Was a Reasonably Foreseeable Result of the Manufacturer's Conduct

Area of Law: Torts

Issue(s) Presented: When should a manufacturer of a product that does not contain asbestos be held liable for an asbestos-related injury caused by parts added on to the manufacturer's product?

Brief Summary: Roberta G. Devries and Shirley McAfee, widows of former United States Navy service members, filed separate complaints against several manufacturers that produced various metal products for naval ships. Devries and McAfee sued under negligence and strict liability theories. They alleged that their deceased husbands contracted cancer from exposure to asbestos-containing insulation added to the metal products. The manufacturers invoked the bare-metal defense, arguing that they should not be held liable because their products were made of pure metal and therefore cannot contain asbestos. Further, they should not be held responsible for asbestos-containing components added to their products post-sale. The district court applied a bright-line version of the bare-metal defense, finding that a bare-material manufacturer can never be held liable for injuries caused by later-added asbestos-containing materials, and granted the manufacturers' motion for summary judgment on both theories. On appeal, the Third Circuit found that maritime law principles favored a fact-specific standard, rather than a bright-line rule, and held that a manufacturer of a bare-metal product could be found liable if the injuries were a reasonably foreseeable result of the manufacturer's conduct. The Court remanded the matter for further proceedings consistent with the opinion.

Extended Summary: This case concerns the validity and extent of a manufacturer's bare-metal defense. Robert G. Devries' husband served in the United States Navy and worked aboard the U.S.S. Turner from 1957-1960. Shirley McAfee's husband, who also served in the Navy, served on two ships and worked in the Philadelphia Navy Shipyard. Both men died from cancer, allegedly caused by exposure to asbestos-containing insulation and components that were added to the ships' engines, pumps, boilers, blowers, generators, switchboards, steam traps, and other devices. Plaintiffs both filed complaints under negligence and strict liability theories. Since the alleged negligent acts occurred aboard naval ships, the case was governed by maritime law and was tried in the district court. The manufacturers moved for summary judgment and invoked the bare-metal defense, arguing that they could not be held liable because their products only consisted of metal and could not contain asbestos. The district court granted summary judgment in favor of the manufacturers.

Plaintiffs appealed because the district court did not address their negligence claims. The Third Circuit remanded and instructed the district court to determine the negligence issue based on either a bright-line rule or a fact-specific standard. The bright-line rule provides that a manufacturer of a bare-metal product can never be held liable for a plaintiff's injuries related to asbestos. The fact-specific standard allows a bare-metal manufacturer to be liable if the plaintiff's injuries were a reasonably foreseeable result of the manufacturer's conduct. The district court applied the bright-line rule and granted the manufacturers' motion for summary judgment on both the strict liability and negligence claims. Devries and McAfee appealed for a second time and the Third Circuit consolidated their appeals.

In order to determine whether the bare-metal defense was valid, the Third Circuit had to determine whether to use the bright-line rule or the fact-specific standard. Neither the Third Circuit nor the Supreme Court had addressed this issue, but other jurisdictions were split between the rule and the standard. The Court ultimately examined whether the rule or standard more appropriately aligned with the four maritime law principles: (1) deep concern with protection of sailors; (2) tradition of simplicity and practicality; (3) interest in protecting maritime commerce; and (4) preference for uniform rules to govern conduct and liability. The Third Circuit found that maritime law's deep concern with protection of sailors aligned with the standard approach because it allows for a greater number of injured sailors to be compensated. Next, the Court found that the second principle of simplicity and practicality could fit under either the bright-line rule or the fact-specific standard. It found that simplicity could relate to predictability, which would favor the bright-line rule, but it could also favor the fact-specific standard because it favors familiarity, which could be related to foreseeability. The Court disregarded the third and fourth principles because they did not favor one approach over the other. Looking at the principles in aggregate, the Court adopted the fact-specific standard.

Using the fact-specific standard, the Court held that a manufacturer could be found liable if decedents' injuries were a reasonably foreseeable result of the manufacturers' failure to provide a reasonable and adequate warning. Under prior case law, the Court reasoned that a bare-metal manufacturer may be subject to liability if it reasonably could have known, at the time it placed its product into the stream of commerce, that (1) asbestos is hazardous and (2) its product will be used with an asbestos-containing part, because (a) the product was originally equipped with asbestos-containing part that could reasonably be expected to be replaced over the product's lifetime, (b) the manufacturer specifically directed that the product be used with an asbestos-containing part, or (c) the product required an asbestos-containing part to function properly. However, the Court noted that this list is non-exhaustive and the bare-metal defense is a fact-specific inquiry that must be decided on a case-by-case basis. The Third Circuit remanded the negligence claims for further proceedings.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/162602p.pdf

Panel: Vanaskie, Shwartz, and Restrepo, Circuit Judges

Argument Date: March 27, 2017

Date of Issued Opinion: October 3, 2017

Docket Number: Nos. 16-2602 & 16-2669

Decided: Partially affirmed and remanded.

Case Alert Author: Emily Anderson

Counsel: Richard P. Myers, Esq. for Appellants Roberta G. Devries and Shirley McAfee; and John S. Howarth, Esq. for Appellee Buffalo Pumps, Inc.; and Shay Dvoretzsy, Esq. for Appellee CBS Corp.; and Lee J. Janiczek, Esq., Christopher, J. Keale, Esq. for Appellee Foster Wheeler LLC; and Timothy E. Kapshandy, Esq. and Rebecca K. Wood, Esq. for General Electric Co.; and Joseph I. Fontak for IMO Industries, Inc.; and Laurie J. Hepler, Esq. for Appellee Warren Pumps; and Carol A. VanderWoude, Esq. for Appellee Ingersoll Rand Co.

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/04/2017 12:53 PM     3rd Circuit     Comments (0)  

October 3, 2017
  Ayco Farms, Inc. v. Ochoa
Headline:
Ninth Circuit panels holds (1) that in performing a forum non conveniens analysis, a district court does not abuse its discretion by comparing the proposed foreign forum with the particular State forum that the plaintiff actually chose, rather than with the United States as a whole, and (2) a U.S. citizen plaintiff is entitled to less deference in his choice of forum if he does not reside in that forum.

Areas of Law:
Civil Procedure; Forum Non Conveniens

Issues Presented:
(1) Whether, when balancing private and public interests under the doctrine of forum non conveniens, the court should weigh the burdens and benefits of litigating in a foreign country against the burdens and benefits of litigating in a particular state, or in the United States as a whole. (2) Whether a district court acts within its discretion when it affords less deference to a U.S. plaintiff's choice of forum when the plaintiff is not a citizen of the forum State.

Brief Summary:
Plaintiff Ayco Farms, a Florida corporation with its headquarters in Florida partnered with two Mexican nationals to create a new business entity that would buy and grow produce which Ayco would market and sell on an exclusive basis. Ayco filed suit in the Central District of California alleging breach of the exclusivity agreement. The district court granted defendants' motion to dismiss on forum non conveniens grounds. Affirming the district court's ruling, the Ninth Circuit panel held that the district court did not abuse its discretion in comparing the burdens and benefits of litigation in Mexico and California rather than the burdens and benefits of litigation in Mexico and the United States as a whole. The panel also held that the district court did not err in affording a Florida plaintiff's choice to file its lawsuit in California less deferance, ruling that "a U.S. citizen plaintiff is entitled to less deference in his choice of forum if he does not reside in that forum."

Significance:
(1) In balancing private and public interests under the doctrine of forum non conveniens, the court should weigh the burdens and benefits of litigating in a foreign country against the burdens and benefits of litigating in a particular state, not in the United States as a whole. (2) A district court acts within its discretion when it affords less deference to a U.S. plaintiff's choice of forum when the plaintiff is not a citizen of the forum State.

Extended Summary:
Ayco Farms, Inc. ("Ayco"), a business incorporated and headquartered in Florida, markets and sells produce throughout the United States. In 2012, Ayco partnered with two individuals to establish Ayco Farms Mexico ("AFM"), a business that would purchase and grow produce, and give Ayco Farms the exclusive right to market and sell their produce worldwide. The two individuals - Guillermo Rodriguez Ochoa and Manuel Del Toro Chavez - are citizens of Mexico and officers of Operadora de Productos Frescos, SA de CV ("OPF"), a company headquartered in Mexico that helps Mexican farmers import produce to the United States. Ochoa and Chavez agreed to assign OPF as AFM's agent until AFM became more established.

In 2014, two years after the partnership was established, OPF sued Ayco in Mexico for failure to properly establish AFM and honor its promises. Ayco then filed suit in the U.S. District Court for the Central District of California, alleging breach of an agreement to give Ayco exclusive rights to its products.

Ochoa and Chavez moved to dismiss under forum non conveniens doctrine. Ayco subsequently opened a California office. The district court granted Chavez's and Ochoa's motion to dismiss with several conditions, concluding that (1) Mexico was an adequate alternative forum; (2) the private and public interest factors identified in Gulf Oil Corp. v. Gilbert favored dismissal; and (3) less deference to Ayco's choice of forum was warranted due to Ayco's lack of contact with California.

On appeal, the Ninth Circuit panel held that the doctrine of forum non conveniens is generally applied by comparing the benefits and burdens of litigation in a foreign country against those of a particular state rather than the U.S. as a whole. The panel reasoned that, due to the vast differences among states, it would be difficult and impracticable for a district court to consider all Gulf Oil factors for the United States as a whole. While recognizing that there may be cases in which a simple application of the Gulf Oil factors could favor or oppose litigation in a foreign country, the panel concluded that district courts may use discretion in addressing the issue on a case-by-case basisThe panel ruled that the district court did not abuse its discretion here "by comparing the proposed foreign forum with the forum that the plaintiff actually chose, rather than with the United States as a whole.".

The panel also determined that, despite a plaintiff's general entitlement to deference in its choice of forum, especially an American plaintiff, this deference is not absolute and a mere showing of American citizenship is not in itself sufficient to bar a district court from granting a forum non conveniens dismissal. Moreover, the panel followed the Second Circuit en banc reasoning where "the more it appears that the plaintiff's choice of a U.S. forum was motivated by forum-shopping reasons ... the less deference the plaintiff's choice of forum commands." Vivendi SA v. T-Mobile USA Inc., 586 F.3d 698, 695 (9th Cir. 2009) (quoting Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc)). The panel held that the district court acted within its discretion when it viewed Ayco's choice of forum with skepticism, affording it less deference because it was evident that Ayco's contacts with California were limited and that Ayco was attempting to establish connections with the state by opening an office within its jurisdiction during the month in which both parties presented oral arguments on respondents' motion to dismiss.

Moreover, the panel rejected Ayco's argument that the district court erred in concluding that the Gulf Oil factors favored a trial in Mexico, ruling that Ayco failed to provide evidence of any private factors or public interests favoring trial in California.

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/da...017/07/10/15-55611.pdf

Panel: Richard C. Tallman and Michelle T. Friedland, Circuit Judges; and David A. Faber, District Judge

Argument Date: January 9, 2017

Date of Issued Opinion: July 10, 2017

Docket Number: 15-55611

Decided: Affirmed

Case Alert Author: Christine Mardikian

Counsel: Paul S. Marks (argued) and Yuriko M. Shikai, Neufeld Marks, Los Angeles, California, for Plaintiff-Appellant. Timothy D. Biche (argued), Diyari Vásquez, and Gerald E. Hawxhurst, Crone Hawxhurst LLP, Los Angeles, California, for Defendant-Appellee.

Author of Opinion: Per Curiam Opinion

Circuit: Ninth

Case Alert Supervisor: Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 10/03/2017 04:58 PM     9th Circuit     Comments (0)  

  Republic of the Marshall Islands v. United States
Headline:
The Ninth Circuit panel concluded that Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons was non-self-executing and, therefore, unenforceable by the United States judicial branch.

Areas of Law:
International Law; Civil Procedure

Issues Presented:
Whether Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons was a self-executing treaty, thus requiring the United States to engage in good-faith negotiations under Article VI of the Treaty.

Brief Summary:
The Ninth Circuit affirmed the decision of the district court to dismiss a suit filed by the Republic of the Marshall Islands (Marshall Islands) against the United States claiming that the United States breached Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons by failing to pursue good-faith negotiations. The panel held (1) Article VI of the Treaty is non-self-executing, (2) plaintiff's claims are not redressable because Article VI is not self-executing and, therefore, plaintiff lacks standing under Article III's "case" or "controversy" requirement, and (3) the claims presented inextricable political questions. The Ninth Circuit panel, therefore, held that Article VI was not judicially enforceable in domestic court, and dismissed the claim.

Significance:
Unlike the typical treaty-enforcement actions brought by private individuals, this case involves one state party seeking to enforce its treaty rights in the domestic court of another state party. This unorthodox effort failed because treaties that are non-self-executing are unenforceable judicially.

Extended Summary:
The Treaty on the Non-Proliferation of Nuclear Weapons (the Treaty) was entered into in 1970 after being signed by President Johnson with consent of the United States Senate with the goal of nuclear disarmament. In 1995, the Marshall Islands, the named plaintiff, acceded to the Treaty. Today over 180 states are parties to the Treaty.

Article VI of the Treaty promoted the nuclear disarmament goal by stating that each party to the Treaty will "pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament." In April, 2014, the Marshall Islands sued the United States in federal district court claiming that the United States failed to pursue good-faith negotiations, and therefore breached Article VI of the Treaty. According to the Marshall Islands, the United States has a "grim legacy" of a "nuclear weapons program" and this included the detonation of sixty-seven nuclear weapons in the Marshall Islands that resulted in "horrific and multi-generational consequences." The Marshall Islands sought a declaration stating that Article VI imposes obligations on the United States to (1) "pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament;" and (2) "bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective control" and a separate declaration that the United States is "in continuing breach" of Article VI's obligation to "pursue negotiations in good-faith on effective measures relating to cessation of the nuclear arms race at an early date and nuclear disarmament." The Marshall Islands sought to force the United States - "within one year" following entry of the requested declaratory judgment - to "take all steps necessary" to comply with its Article VI obligations, "including by calling for and convening negotiations for nuclear disarmament in all its aspects."

This case deviated from the typical treaty-enforcement action as it was brought by one state party seeking to enforce its treaty rights in the domestic court of another state party.

The Ninth Circuit panel first addressed whether Article VI was self-executing and, therefore, judicially enforceable in federal court. The panel determined that Article VI was the epitome of a non-self-executing treaty noting that the text of the Treaty does not explicitly request direct judicial enforcement of Article VI, nothing in the text of the Treaty suggests that it was designed "to have immediate effect" in domestic courts, the Treaty calls for the United States to pursue future negotiations on "effective measures" to "end the nuclear arms race at an early date," and most important, "Article VI is addressed to the executive, urging further steps only the executive can take - negotiation with other nations.

The panel further held that the Marshall Islands' claims are not redressable because Article VI is non-self-executing and, therefore, the Marshall Islands lacks standing under Article III that limits the judicial power to resolving "cases" and "controversies" and the separation-of-powers principles underlying that limitation. In other words, plaintiff's asserted injuries are not redressable because Article VI may not be enforced in federal court.

The Ninth Circuit panel also addressed the political question doctrine preliminarily noting that the Supreme Court has recognized the inherently political nature of decisions involving foreign relations. In Baker v. Carr, the Court set out six factors to determine whether a claim raises a political question (so-called "Baker factors.") The panel relied on the first two factors to determine if the claim raised a political question: "[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it."

The Marshall Islands' claims involved "a textually demonstrable constitutional commitment of the issue to a coordinate political department" by stating "when, where, whether, who, and how" the United States would "negotiate with foreign nations to end the nuclear arms race and accomplish nuclear disarmament." The panel ruled that it cannot compel the United States to "call for and convene negotiations for nuclear disarmament in all its aspects."

Noting that Article VI contains "an array of vague terms and a dearth of applicable standards" the panel concluded that there was a "lack of judicially discoverable and manageable standards for resolving" key issues intertwined with the relief sought by the Marshall Islands.

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...017/07/31/15-15636.pdf

Panel:
M. Margaret McKeown and Jay S. Bybee, Circuit Judges, and Susan Oki Mollway, District Judge.

Argument:
March 15, 2017

Date of Issued Opinion:
July 31, 2017

Docket Number:
4: 14-cv-01885-JSW

Decided:
Affirmed the decision of the district court.

Case Alert Author:
Kianna Woods

Counsel:
Laurie B. Ashton (argued) and Alison Chase, Keller Rohrback LLP, Phoenix, Arizona; Juli E. Farris and Lynn Lincoln Sarko, Keller Rohrback LLP, Seattle, Washington; for Plaintiff-Appellant.

Sushma Soni (argued) and Douglas N. Letter, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Scott Yundt, Livermore, California, as and for Amicus Curiae Tri-Valley Communities Against a Radioactive Environment.

Henry M. Willis, Schwartz Steinsapir Dohrmann & Sommers LLP, Los Angeles, California; Margot Nikitas, Staff Attorney; Joseph Cohen, General Counsel; United Electrical, Radio and Machine Workers of America, Pittsburgh, Pennsylvania; for Amici Curiae United Electrical, Radio and Machine Workers of America (UE), International Commission for Labor Rights, and Labor and Employment Committee of the National Lawyers Guild.

Janet Benshoof, New York, New York, as and for Amicus Curiae Global Justice Center.

Randy Baker, Seattle, Washington; Anabel Dwyer, Elizabeth Shafer, and John Burroughs, Lawyers Committee on Nuclear Policy, New York, New York, for Amicus Curiae Lawyers Committee on Nuclear Policy.

Daniel U. Smith, Smith & McGinty, San Francisco, California, for Amici Curiae Physicians for Social Responsibility, International Physicians for the Prevention of Nuclear War, and Pax Christi International.

Andrea R. St. Julian, San Diego, California, for Amici Curiae Hans M. Kristensen, Robert Alvarez, Dr. James E. Doyle, and Nuclear Watch New Mexico.

Author of Opinion:
Judge McKeown

Circuit:
Ninth

Case Alert Supervisor:
Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 10/03/2017 04:52 PM     9th Circuit     Comments (0)  

September 29, 2017
  EQT Production Company v. Wender -- Fourth Circuit
Creatures of the State: County Ordinances May Not Nullify State-Issued Licenses

Areas of Law: Environmental, Statutory Interpretation

Issue Presented: Whether a county ordinance banning the disposal of wastewater in state-licensed wells was preempted by state and federal laws that specifically permitted the activity.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the district court correctly determined Fayette County did not have the authority to nullify state-issued licenses to dispose of wastewater. The Fourth Circuit found the County's ordinance was preempted by West Virginia's Water Pollution Control Act and Oil and Gas Act. As such, EQT Production Company (a company engaged in licensed wastewater disposal) was granted a permanent injunction against enforcement of the ordinance.

Extended Summary: EQT Production Company ("EQT") is one of the largest natural gas producers in the Appalachian Basin. EQT operates approximately 200 conventional oil and natural gas wells in Fayette County, West Virginia. Because these wells generate wastewater during the natural gas production process (known to many as "fracking"), EQT stores the wastewater in short-term storage tanks so the water does not pollute the environment. But because these storage tanks often reach capacity, EQT operates one injection well in the County, which it uses to permanently dispose of the excess wastewater.

Both the production and disposal processes are heavily regulated by state and federal laws. For example, West Virginia state law governs, among other things, permanent wastewater disposal, including the permitting of injection wells. EQT held a permit for its injection well and its well never posed any apparent danger. Nevertheless, on January 12, 2016, the Fayette County Commissioners enacted the "Ordinance Banning the Storage, Disposal, or Use of Oil and Natural Gas Waste." The Ordinance banned the use of "injection wells for the purpose of permanently disposing of natural gas and oil waste." Furthermore, the Ordinance specifically stated that holders of state or federal permits were not exempt from enforcement.

EQT challenged this enactment, contending that the County's blanket ban was invalid because it conflicted with superior state laws. (This is known as "preemption.") In response, the County argued that EQT lacked standing to sue because it had not yet suffered an injury, and also that the Ordinance was enforceable because state law allowed a county to abate anything it "determines to be a public nuisance." The United States District Court for the Southern District of West Virginia found for EQT, writing that the County could not "unilaterally prohibit conduct that federal and state law both expressly permit." The County then appealed to the Fourth Circuit.

The Fourth Circuit held that the district court properly determined the Ordinance was preempted because the Ordinance banned activities that were specifically licensed and regulated by the state.

The court first disposed of the County's argument that EQT lacked standing to sue because it had not suffered an injury in fact. The court noted that the ban on the permanent disposal of wastewater would require EQT to shut down its existing well and construct a new one in a neighboring county. Because this would necessarily burden EQT with additional costs, the court found that EQT suffered an injury in fact.

On the merits of the preemption claim, the court first outlined West Virginia's governmental hierarchy. The court noted that county commissions are provided with limited power by the state and as such, any county ordinance is automatically "inferior" to all legislative acts of the state. Relying on the West Virginia Supreme Court of Appeals' decision in Brackman's Inc. v. City of Huntington, 27 S.E.2d 71, 78 (W. Va. 1943), the Fourth Circuit held that counties lack the authority to impede activities that a state has regulated and licensed "pursuant to a state statute."

Finally, the court addressed the County's contention that the Ordinance was not preempted because of language in state law that permits counties to "suppress nuisances" or "abate any pollution." The court held that the County's interpretation of this language was greatly overstated. The court found the language gave the County the right to abate established nuisances, but did not allow the County to unilaterally determine what a nuisance is. See Sharon Steel Corp. v. City of Fairmont, 334 S.E.2d 616, 626 (W. Va. 1985). If injection wells should turn into a public nuisance, the County's appropriate and legal course of action would be to bring a common law action against the particular injection well operators. The Fourth Circuit affirmed the District Court's judgment, holding the Fayette County's Ordinance preempted and thus, unenforceable.

Judge Wynn dissented, finding that West Virginia's Supreme Court of Appeals would have been the more appropriate forum to decide the issue because it is the state court's role to determine the balance of power between state and local authorities.

To read the full opinion, click here.

Panel: Judges Niemeyer, Wynn, and Harris

Argument Date: 05/09/2017

Date of Issued Opinion: 08/30/2017

Docket Number: No. 16-1938

Decided: Decided by published opinion.

Case Alert Author: Jeremy Himmelstein, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Derek Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg, West Virginia, for Appellants. Timothy M. Miller, BABST, CALLAND, CLEMENTS & ZOMNIR, P.C., Charleston, West Virginia, for Appellee. ON BRIEF: Thomas A. Rist, HUMPHREY & RIST, LLP, Fayetteville, West Virginia, for Appellants. Christopher B. Power, BABST, CALLAND, CLEMENTS & ZOMNIR, P.C., Charleston, West Virginia, for Appellee. Roger G. Hanshaw, BOWLES RICE LLP, Charleston, West Virginia, for Amici Curiae.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/29/2017 05:42 PM     4th Circuit     Comments (0)  

  Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc. -- Fourth Circuit
Don't Put All Your Eggs in One Basket: Court Affirms Humane Farm Animal Care's Email was False Advertising

Areas of Law: Constitutional Law - First Amendment - Lanham Act - False Advertising

Issue Presented: Whether the District Court for the Eastern District of Virginia erred in finding that Humane Farm Animal Care's email regarding Handsome Brook Farm's business certifications was false advertising as defined under the Lanham Act, thereby entitling Handsome Brook Farm to injunctive relief.

Brief Summary: In an unpublished opinion, the United States Court of Appeals for the Fourth Circuit upheld the issuance of a preliminary injunction and order compelling a retraction email from the Appellant in this case. The court determined that the United States District Court for the Eastern District of Virginia did not abuse its discretion or commit clear error when it decided that an email sent by the Appellant was prohibited by the Lanham Act, 15 U.S.C. §1125(a)(1)(B). This section forbids untrue or deceptive statements "in commercial advertising or promotion" which improperly represent another's product.

Extended Summary: Handsome Brook Farm, LLC, is an egg producer that distributes its products in grocery stores in the United States. Humane Farm Animal Care, Inc. (HFAC) is a 501(c)(3) non-profit that offers certifications for egg producers that meet HFAC's standards for humane treatment of laying hens. As a non-profit, HFAC receives a portion of the sales (plus other fees) from products with its "Certified Humane" label. Having the HFAC label on a product may make it more appealing to consumers who value animal welfare in food production.
In April 2016, the employee of another egg producer contacted HFAC, saying he knew people at a facility that packed Handsome Brook eggs. The employee further reported that the eggs "were not pasture raised, but were being packed in cartons with pasture raised labeling." Unrelated to the claims made by the employee, HFAC audited the facility one month later. The HFAC auditor filed a report saying Handsome Brook's certifications were expired.

On May 20, 2016, the Executive Director of HFAC, Adele Douglass, sent an email to thirty-six large retailers, including Costco, Harris Teeter, Kroger, Publix, Safeway, Target, and Whole Foods. These businesses either had a partnership with HFAC or were considering carrying Handsome Brook eggs. The email said that HFAC was prompted by a whistleblower complaint to inspect a facility that packed HFAC "Certified Humane" eggs, in addition to Handsome Brook eggs. The email continued that the "Pasture Raised" statement on Handsome Brook cartons could not be validated, and that none of the eggs being packed at the time of the inspection were pasture raised nor were they "American Humane Certified." The email also reported that Handsome Brook's organic certification was not up-to-date. The email closed by urging the stores to "reconsider changing suppliers."

Before sending the email, HFAC did not contact Handsome Brook's certifiers or make attempts to confirm the truth of the audit report. Because of the email, stores pulled Handsome Brook's eggs, temporarily or indefinitely, and a proposed retail partner delayed its introduction of the product.

Handsome Brook initiated suit, claiming the email was false advertising under the Lanham Act. With its complaint, it included current organic certifications from the three egg producers it worked with, in addition to affidavits from the American Humane Association confirming that Handsome Brook and its affiliated producers had passed timely audits. The District Court initially provided Handsome Brook with a temporary restraining order, but later granted a preliminary injunction as well, and required HFAC to publish a retraction email.

The Fourth Circuit reviewed the granting of the preliminary injunction for abuse of discretion. A preliminary injunction is properly granted if (1) the plaintiff will likely succeed on the merits, (2) the plaintiff will likely suffer irreparable harm if the preliminary injunction is denied, (3) the balance of equities favors granting a preliminary injunction, and (4) the public interest counsels in favor of granting the preliminary injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

The court first considered language in the Lanham Act, 15 U.S.C. §1125(a)(1)(B), which forbids untrue or deceptive statements "in commercial advertising or promotion" that improperly represent another's product. Because the Lanham Act does not provide a definition for "commercial advertising or promotion," the court turned to a test out of the Southern District of New York. In that test, commercial advertising or promotion is defined as (1) commercial speech (2) by a defendant in commercial competition with the plaintiff (3) for the purpose of influencing consumers to buy goods or services, and the representations (4) must be sufficiently disseminated to the relevant purchasing public to constitute advertising or promotion within that industry. Gordon & Breach Sci. Publishers v. Am. Inst. Of Physics, 859 F. Supp. 1521, 1536 (S.D.N.Y. 1994). The Fourth Circuit adopted a modified version of this test that excludes the second factor.

Commercial speech receives less protection under the First Amendment. The court found that HFAC was primarily motivated by commercial interests when it sent its email. This conclusion was based on the fact that the recipients of the email were grocers that could sell HFAC-certified products. Additionally, the email mentioned HFAC's certification, comparing it to others in a way that presented it as superior.
The court further found that Handsome Brook suffered irreparable harm and would continue to if its injunction was denied. Handsome Brook's allegations, found to be true by the district court, were that two grocers had stopped selling Handsome Brook Eggs and one had postponed a rollout of the product. Additionally, the contents of the email had been shared outside of the recipients, and one individual heard it being discussed at a trade show.

In coming to its conclusion, the court rejected HFAC's defenses of truth, unconstitutional prior restraint on speech, and improperly compelled speech. The email could not be considered true where, among other things, HFAC did not conduct its audit based on the "whistleblower" report. Additionally, as the court noted, prior restraints are constitutionally permissible to stop false and misleading commercial speech. Finally, the State has an interest in protecting consumers from false and misleading speech. Thus, where the nature of the speech in this case is commercial, the compulsion is allowable.

To read the full opinion, click here.

Panel: Judges Gregory, Duncan, and Diaz.

Argument Date: 05/11/2017

Date of Issued Opinion: 08/22/2017

Docket Number: 16-1813

Decided: Affirmed by unpublished opinion.

Case Alert Author: Hannah Catt, Univ. of Maryland Carey School of Law

Counsel: Lana Marie Manitta, RICH ROSENTHAL BRINCEFIELD MANITTA DZUBIN & KROEGER, LLP, Alexandria, Virginia, for Appellant. Sanjay Satish Karnik, AMIN TALATI UPADHYE, LLP, Chicago, Illinois, for Appellee. ON BRIEF: Ryan M. Kaiser, AMIN TALATI UPADHYE, LLP, Chicago, Illinois, for Appellee.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/29/2017 02:45 PM     4th Circuit     Comments (0)  

  Humbert v. Mayor and City Council of Baltimore City -- Fourth Circuit
The Lies that Bind: Police Officers' Use of Questionable Investigatory Tactics Leads to Successful § 1983 Malicious Prosecution Claim

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Issue Presented: Whether the District Court erred in determining there was probable cause to support the seizure of Marlow Humbert, and erred in determining the officers were entitled to qualified immunity.

Brief Summary: Humbert spent some fifteen-months in pretrial solitary confinement after being charged with sexual assault. When charges were dropped against him, Humbert filed suit against the police officers involved in his case. He alleged the officers engaged in various questionable tactics during the investigation. A jury found the officers liable for malicious prosecution under 42 U.S.C. § 1983, and awarded Humbert $2.3 million in compensatory and punitive damages. The trial judge rejected the jury verdict, concluding the officers had probable cause to arrest Humbert and were entitled to qualified immunity. On appeal, the Fourth Circuit reversed the lower court's findings. The Fourth Circuit found the officers' conduct amounted to malicious prosecution under 42 U.S.C. § 1983 because the officers had no reasonable basis to believe probable cause existed to seek the warrant or initiate criminal proceedings against Mr. Humbert. The Fourth Circuit further determined the officers were not entitled to qualified immunity, and thus reinstated the jury verdict.

Extended Summary: Marlow Humbert initiated claims against Officers Jones, Smith, and Griffin for malicious prosecution under 42 U.S.C. § 1983 and for violations of Articles 24 and 26 of Maryland's Declaration of Rights. The claims stemmed from the officers' actions, which contributed to Mr. Humbert's fifteen-month pretrial solitary confinement after being charged with sexual assault. During Mr. Humbert's confinement, the officers failed to notify the State's Attorney that the victim could not positively identify Humbert and never mentioned that DNA reports excluded Humbert as a suspect. In addition, the officers included a false statement within the warrant application. After obtaining the information that had been withheld by the officers, the prosecutor entered a nolle prosequi as to Humbert's charges. Humbert then sued.

At trial, the jury found for Humbert and awarded him $2.3 million in compensatory and punitive damages. However, the district court granted the officers' motion for judgment as a matter of law. In rejecting the jury verdict, the trial judge found the officers had probable cause to arrest Humbert and were entitled to qualified immunity. Humbert appealed, and the Fourth Circuit reversed.

In reversing, the Fourth Circuit held that: (1) Humbert's arrest was unsupported by probable cause because it resulted from a materially false warrant application, and (2) Humbert's seizure could not otherwise be justified by "adequate knowledge independent of the warrant to constitute probable cause." Because arresting and initiating legal process against Humbert without probable cause amounted to a seizure in clear violation of the Fourth Amendment, the court found the officers were not entitled to qualified immunity.

The Fourth Circuit first analyzed whether the jury's factual findings demonstrated that the officers' conduct amounted to malicious prosecution under 42 U.S.C. § 1983. Malicious prosecution claims are considered for § 1983 purposes when one alleges that their arrest was made pursuant to a warrant that was not supported by probable cause. In order for Humbert to succeed, he had to prove (1) the officers caused his seizure, (2) pursuant to legal process unsupported by probable cause, and (3) the criminal proceeding terminated in his favor. Since the jury found Humbert was seized and criminally prosecuted and the State's Attorney entered a nolle prosequi; the Fourth Circuit focused its analysis on whether probable cause existed to institute and maintain the criminal proceedings against Humbert.

As to the probable cause question, the court found the officers deliberately or with a "reckless disregard for the truth" included in the warrant application the false assertion that the victim had positively identified Humbert. Indeed, the court concluded - based on the jury's factual findings - that the officers improperly influenced the victim's tentative identification of Humbert as her attacker by showing her a picture of Humbert and declaring he was her attacker before she saw his photo in a photobook. The court next determined that a "corrected" warrant application, removing the victim's alleged identification, would not establish probable cause. The court then turned to whether probable cause otherwise existed to arrest Humbert and initiate criminal proceedings against him. The Fourth Circuit found that although testimony indicated Humbert matched the vague physical description of the assailant, his mere presence in the area eight days after the crime was committed was not sufficient to justify his arrest. Based on these findings, the court concluded that the legal process instituted against Humbert and his resulting pretrial detention were unsupported by probable cause.

Finally, as to qualified immunity, the Fourth Circuit found that a reasonable person in the officers' positions would have known their actions violated a clearly established right. As the court noted, the objective standard for qualified immunity encompasses the allegation of falsity or material omissions "because a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by [stated or omitted facts] that the officer knows or should know are false [or would negate probable cause]."

The Fourth Circuit, thus, reversed in part, vacated in part, and remanded with instructions.

To read the full opinion, click here.

Panel: Chief Judge Gregory and Judges Thacker and Harris

Argument Date: 01/25/2017

Date of Issued Opinion: 08/07/2017

Docket Number: 15-1768

Decided: Affirmed by published opinion.

Case Alert Author: Avatara Smith-Carrington, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Charles Henry Edwards, IV, LAW OFFICE OF BARRY GLAZER, LLP, Baltimore, Maryland, for Appellant. Suzanne Sangree, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. ON BRIEF: George Nilson, City Solicitor, Kara Lynch, Assistant Solicitor, Colin Glynn, Assistant Solicitor, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/29/2017 08:31 AM     4th Circuit     Comments (0)  

September 27, 2017
  United States v. Blake-11th Circuit
Headline: Eleventh Circuit holds that an order to bypass security features of IPad was within the authority granted by the All Writs Act and warrants for Facebook while overbroad, fall within the good faith exception.

Area of Law: Criminal Law

Issue: Whether an order to bypass security features of IPad was within the authority granted by the All Writs Act and whether warrants for Facebook were overbroad requiring suppression of evidence.

Extended Summary: The Federal Bureau of Investigation ("FBI") arrested and charged Appellants, Dontavious Blake ("Blake") and Tara Jo Moore ("Moore") with crimes related to sex trafficking. The FBI obtained search warrants for Moore's Facebook and Microsoft accounts. The Facebook warrants were not limited to specific data or to a specific timeframe. The Microsoft warrant was limited to emails linked to the sex trafficking charges. The FBI also obtained an order ("bypass order") issued under the All Writs Act requiring that Apple bypass the security measures of an IPad recovered during a search of Blake and Moore's home. Blake and Moore were convicted after the district court denied their motions to suppress the evidence gathered from Facebook, Microsoft and the IPad. On appeal, the Eleventh Circuit noted that the scope of the Facebook warrants could and should have been limited. In addressing the particularity requirement of the Fourth Amendment, the court determined that even if the warrants were overly broad, they were supported by probable cause and the "good-faith" exception would apply. The court also held that the Microsoft warrant was valid because it was supported by probable cause and limited in scope to emails that had the potential to contain incriminating evidence. The Eleventh Circuit declined to determine if Moore and Blake had the prudential standing to contest the bypass order, but held that the bypass order did not exceed the district court's authority under the All Writs Act because all of the necessary requirements were met. The court found no error with the district court's rulings regarding the other issues raised on appeal. Accordingly, the Eleventh Circuit affirmed.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201513395.pdf

Panel: Carnes, Chief Judge; Fay, Circuit Judge, and Parker (United States Circuit Judge for the Second Circuit, sitting by designation)

Argument:

Date of Issued Opinion: August 21, 2017

Docket Number: 15-13395

Decided: Affirmed.

Case Alert Authors: Gabrielle F. McCabe, Franklin Sandrea-Rivero, and Peter Abraham-Orejuela

Counsel:

Author of Opinion: Carnes, Chief Judge.

    Posted By: Gary Kravitz @ 09/27/2017 03:32 PM     11th Circuit     Comments (0)  

  Paul Satterfield v. District Attorney Philadelphia - Third Circuit
Headline: Third Circuit Articulates New Analysis for Rule 60(b)(6) Motions Premised on a Change in Decision Law, and Finds That a Showing of Actual Innocence Weighs Heavily in Favor of Habeas Corpus Petitioners' Ability to Litigate Their Constitutional Claims Despite Certain Procedural Bars

Area of Law: Federal Rules of Civil Procedure and Habeas Corpus

Issues Presented: Whether a change in decisional law, either alone or in combination with other equitable factors, was sufficient basis for invoking relief from final judgment under Rule 60(b)(6), to allow an appellant to raise an otherwise time-barred valid claim that trial counsel was ineffective?

Brief Summary: Despite repeatedly asserting his innocence, Paul Satterfield was convicted of first degree murder in 1985 and sentenced to life in prison. After years of direct and collateral litigation, Satterfield appeared to emerge victorious when the District Court, acting on his federal habeas petition, found that his ineffective assistance of counsel claim was meritorious. But the Third Circuit reversed the order granting habeas relief, after finding that Satterfield's petition was barred by Antiterrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations. On remand, the District Court dismissed Satterfield's petition. In 2014, Satterfield filed a motion with the District Court under Federal Rule of Civil Procedure 60(b)(6) seeking relief from the judgment dismissing his habeas petition. Satterfield argued that the Supreme Court's holding in McQuiggin v. Perkins (2013) was a change in decisional law that served as an extraordinary circumstance upon which Rule 60(b)(6) relief may issue. McQuiggin held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass" to overcome an untimely petition under AEDPA. However, the District Court denied Satterfield's Rule 60(b)(6) motion after determining that the decision in McQuiggin was not an extraordinary circumstance. On appeal, the Third Circuit considered whether McQuiggin, either alone or in combination with other equitable factors, was sufficient to invoke relief from final judgment under Rule 60(b)(6) to allow an appellant to raise an otherwise time-barred valid claim that trial counsel was ineffective.

The Third Circuit vacated the District Court's order, citing precedent which held that changes in decisional law may - when paired with certain circumstances - justify Rule 60(b)(6) motion relief. The Third Circuit explained that a district court addressing a Rule 60(b)(6) motion premised on a change in decisional law must examine the full panoply of equitable circumstances in the particular case before rendering a decision. The Third Circuit found that the District Court in Satterfield's case failed to undertake this required equitable analysis; thus, the court remanded the case for proper consideration.

The Third Circuit concluded by further instructing the District Court that on remand the nature of the change in decisional law must be weighed appropriately in the analysis of pertinent equitable factors. It emphasized that McQuiggin implicated the foundational principle of avoiding the conviction of an innocent person and attempted to prevent such a mistake through "the fundamental miscarriage of justice exception." Accordingly, the Third Circuit stated that if Satterfield could make the required credible showing of actual innocence to avail himself of "the fundamental miscarriage of justice exception," equitable analysis would weigh heavily in favor of deeming McQuiggin's change in law an exceptional circumstance justifying Rule 60(b)(6) relief. The Third Circuit then clarified that the nature of the change of law cannot be divorced from that analysis: Satterfield's ability to show actual innocence should not be case determinative. The District Court should weigh all of the equitable factors as guided by precedent.

Extended Summary: Despite repeatedly asserting his innocence, Paul Satterfield was convicted of first degree murder in 1985 and sentenced to life in prison. After years of direct and collateral litigation, Satterfield appeared to emerge victorious when the District Court, acting on his federal habeas petition, found that his ineffective assistance of counsel claim was meritorious. But in an earlier appeal the Third Circuit reversed the order granting habeas relief, after finding that Satterfield's petition was barred by Antiterrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations. On remand, the District Court dismissed Satterfield's petition. In 2014, almost 30 years after his conviction, Satterfield filed a motion with the District Court under Federal Rule of Civil Procedure 60(b)(6) seeking relief from the judgment dismissing his habeas petition. Satterfield argued that the Supreme Court's holding in McQuiggin v. Perkins (2013) was a change in decisional law that served as an extraordinary circumstance upon which Rule 60(b)(6) relief may issue. McQuiggin held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass" to overcome an untimely petition under AEDPA. However, the District Court denied Satterfield's Rule 60(b)(6) motion after determining that McQuiggin was not an extraordinary circumstance. On appeal, the Third Circuit examined whether McQuiggin, either alone or in combination with other equitable factors, was sufficient to invoke relief from final judgment under Rule 60(b)(6) to allow an appellant to raise an otherwise time-barred valid claim that trial counsel was ineffective.

The Third Circuit began its analysis by stating that Rule 60(b) provides litigants with a mechanism by which they may obtain relief from a final judgment "under a limited set of circumstances including fraud, mistake, and newly discovered evidence." Next, it explained that despite the open-ended nature of the provision, a district court may grant relief under Rule 60(b)(6) only in "extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur." The Third Circuit then considered Satterfield's assertion that a change in relevant decisional law occurring after his petition had been denied was an extraordinary circumstance upon which his Rule 60(b)(6) relief may issue. First, the Third Circuit acknowledged that Satterfield properly characterized McQuiggin as effecting a change in decisional law, since prior to McQuiggin, the Court had never affirmatively held that a showing of actual innocence could serve as an equitable exception to AEDPA's statute of limitations. Second, the Third Circuit determined whether the change in law effected by McQuiggin could properly serve as the basis of a Rule 60(b)(6) motion. The Third Circuit clarified that although change in decisional law alone has "rarely" constituted "extraordinary circumstances" for purposes of a Rule 60(b) motion, the Court has historically refrained from imposing any per se or bright-line rule that a particular change in law is never an extraordinary circumstance. Instead, the Third Circuit stated it has adhered to a "case-dependent analysis" rooted in equity, that manifests as a "flexible, multifactor approach to Rule 60(b)(6) motions," by taking into account all the particulars of a movant's case, even where the proffered ground for relief is a post-judgment change in the law. Accordingly, the Third Circuit held that whenever a petitioner bases a Rule 60(b)(6) motion on a change in decisional law, the court should evaluate the nature of the change along with all of the equitable circumstances and clearly articulate the reasoning underlying its ultimate determination. "Whenever a petitioner bases a Rule 60(b)(6) motion on a change in decisional law, the court should evaluate the nature of the change along with all of the equitable circumstances and clearly articulate the reasoning underlying its ultimate determination." The Third Circuit found that the District Court in Satterfield's case failed to articulate this requisite equitable analysis, and thus it remanded the case for proper consideration.

The Third Circuit concluded by further instructing the District Court that on remand, the nature of the change in decisional law must be weighed appropriately in the analysis of pertinent equitable factors. The Court emphasized that the values encompassed by the fundamental-miscarriage-of-justice exception and which drove the Supreme Court's decision in McQuiggin could not be divorced from other aspects of the Rule 60(b)(6) inquiry. More specifically, it explained that Third Circuit precedent requires a weighing of all the equitable factors at play in a particular case, and the nature of the change in law itself is highly relevant to that analysis. According to the Third Circuit, McQuiggin illustrated that where a petitioner makes an adequate showing of actual innocence, the interest in avoiding the wrongful conviction of an innocent person weighs heavily in favor of permitting the petitioner to pursue his constitutional claims in spite of the statute-of-limitations bar. The Third Circuit further explained that because society's "interest in avoiding the wrongful conviction of an innocent person" is so deeply embedded within our justice system, if a petitioner can make a showing of actual innocence, McQuiggin's change in law is almost certainly an exceptional circumstance. Accordingly, the Third Circuit determined that a proper demonstration of actual innocence by Satterfield could permit Rule 60(b)(6) relief unless the totality of equitable circumstances ultimately weigh heavily in the other direction. The Court then noted several other equitable factors that might come into play, including Satterfield's meritorious ineffective- assistance-of-counsel claim. However, the Court also warned that a credible showing of actual innocence is a "burdensome task" that can be met only by showing that in light of new evidence no reasonable juror could have found the defendant guilty beyond a reasonable doubt.

Ultimately, the Third Circuit vacated the District Court's order with respect to the denial of Satterfield's request for Rule 60(b)(6) relief, and remanded the case for reconsideration of the whether the change of law wrought by McQuiggin, combined with the other circumstances of the case, merited relief under Rule 60(b)(6).

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152190p.pdf

Panel: Ambro, Vanaskie, and Restrepo, Circuit Judges

Argument Date: March 27, 2017

Date of Issued Opinion: September 26, 2017

Docket Number: No. 15-2190

Decided: Vacated and remanded

Case Alert Author: Brooke Hutchins

Counsel: Aren K. Adjoian, Esq. [ARGUED), Arianna J. Freeman, Esq., Counsel for Appellant; Susan E. Affronti, Esq., Simran Dhillon, Esq. [ARGUED], Counsel for Appellees

Author of Opinion: Circuit Judge Vanaskie

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mark Rahdert

    Posted By: Susan DeJarnatt @ 09/27/2017 01:00 PM     3rd Circuit     Comments (0)  

September 26, 2017
  United States v. Skelos
Headline: Second Circuit Vacates Convictions of Former New York Senate Majority Leader and His Son, and Remands for New Trial

Area of Law: Criminal

Issue Presented: Whether, in light of the Supreme Court's McDonnell decision, the public corruption convictions of former New York State Senate Majority Leader Dean Skelos and his son, Adam, must be vacated.

Brief Summary: In 2015, in the United States District Court for the Southern District of New York, a jury convicted former New York Senate Majority Leader, Dean Skelos, and his son, Adam Skelos, of Hobbs Act conspiracy, Hobbs Act extortion, honest services wire fraud conspiracy, and federal program bribery. While their appeals were pending in 2016, the Supreme Court decided McDonnell v. United States, which ratcheted up the standard for proving corruption by a public official. The Second Circuit has now concluded, by summary order, that the convictions cannot stand because, under McDonnell, the jury instructions were erroneous. The court did, however, find that a reasonable fact-finder could convict the defendants under the new McDonnell standard, and that the case could therefore be retried.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e79b82b9781/1/hilite/.

Extended Summary: The Second Circuit focused on three of the arguments Dean and Adam Skelos raised on appeal: (1) the jury instructions were erroneous; (2) the evidence at trial was insufficient; and (3) the district court erred in allowing two witnesses to testify.

The Second Circuit addressed the jury instructions issue first. The district court's jury instructions had defined the term "official act" in the crimes charged as "any act taken under color of official authority." After the trial, the Supreme Court held in McDonnell v. United States that there are "significant constitutional concerns" when jury instructions define "official act" to cover "acts that a public official customarily performs." The Supreme Court noted that when jury instruction define "official act" this broadly, an "official act" could encompass "nearly anything a public official does." Accordingly, the Second Circuit held that the district court's jury instructions had been erroneous. Further, the court found that it could not conclude the jury instruction error was harmless beyond a reasonable doubt. The court specifically focused on the risk that the jury could have concluded that evidence of certain meetings Dean Skelos attended fulfilled the official act requirement, rather than simply provided circumstantial evidence of a quid pro quo for favorable votes on legislation.

As to the sufficiency of the evidence at trial, the Court reviewed the record de novo, and concluded the defendants' sufficiency challenge failed on the merits. The Court held that there was more than sufficient evidence for a rational jury to find the material elements of the crime beyond a reasonable doubt under the new McDonnell standard. For example, there was evidence at trial that Senator Skelos had traded his vote in favor of legislation that would benefit certain entities, in exchange for their providing compensation to his son Adam.

Further, as to the district court's decision to permit Lisa Reid (the Executive Director of New York's Legislative Ethics Commission) and Senator Tony Avella to testify, the Court held that although the district court did not abuse its discretion in permitting Reid to testify, the McDonnell decision suggested that it was an abuse of discretion to admit Senator Avella's testimony. Nevertheless, the court did not have to determine whether Senator Avella's testimony alone required vacatur and remand, because the court had already determined the jury instructions error required doing so.

Panel: Circuit Judges Winter and Raggi; District Judge Hellerstein, sitting by designation

Date of Issued Opinion: 09/26/2017

Docket Number: No. 16-1618-cr; No. 16-1697-cr

Decided:
Vacated and Remanded

Case Alert Author:
Rebecca King

Counsel: Alexandra A.E. Shapiro (Daniel J. O'Neill, Fabien Thayamballi, on the brief), Shapiro Arato LLP for Dean Skelos; Robert Alan Culp, Law Office of Robert A. Culp for Adam Skelos; Thomas McKay, Assistant United States Attorney (Tatiana Martins, Margaret Garnett, Assistant United States Attorneys, on the brief) for Joon H. Kim, Acting United States Attorney for the Southern District of New York.

Circuit: Second Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/26/2017 09:41 PM     2nd Circuit     Comments (0)  

September 25, 2017
  Souryavong v. Lackawanna County - Third Circuit
Headline: Employees Did Not Provide Sufficient Evidence to Prove a Willful Violation of the Fair Labor Standards Act ("FLSA") or Abuse of Discretion in Calculating Attorney's Fees.

Area of Law: Labor Law

Issue(s) Presented: (1) Whether Souryavong and Rolon provided sufficient evidence to prove that Lackawanna County's non-payment of overtime was a willful violation of the FLSA; and (2) whether the District Court abused its discretion by improperly calculating attorney's fees?

Brief Summary: In June 2013, Michael Souryavong and Nelson Rolon filed a complaint alleging non-payment of overtime. They worked two part-time jobs for Lackawanna County accumulating over 40 hours per pay period that went unnoticed by the County. At trial, Souryavong and Rolon presented limited evidence to prove the County's awareness of its FLSA violations. The District Court, therefore, granted the County's motion that argued the lack evidence for the jury to consider if the County willfully violated the FLSA. This is important because a jury finding of a willful violation of the FLSA would have permitted a larger award of damages.

Souryavong, Rolon, and Velez were awarded some damages for the violations by the County that included the award of attorney's fees. The District Court in its opinion significantly reduced the calculated attorney's fees by reducing the estimated hours and hourly rate of work for attorney Pollick. The attorney's fees were further diminished when the court considered the awarded relief.

Extended Summary: Souryavong and Rolon worked two separate part-time jobs for Lackawanna County. The County tracked and paid these employees for the individual jobs. In 2011, the County became aware of its failure to consider the hours in aggregate and thus of its failure to pay employees overtime.

At the trial, Souryavong and Rolon presented limited evidence including: the documentation of non-payment, the testimony of the County's general awareness of FLSA standards, and the email first addressing the issue. Willful violations of FLSA, however, require a more specific awareness by an employer concerning the legality of its actions. The evidence indicated only a general awareness of overtime issues and not specifically a violation of the FLSA. Further, Souryavong and Rolon only provided evidence of overtime violations before the County was aware of its non-payment of overtime. For these reasons the District Court correctly concluded that plaintiffs had failed to prove a willful FLSA violation.

Souryavong and Rolon still obtained a favorable result at trial for the County's actual FLSA violation and were awarded attorney's fees, also contested on appeal. Pollick, attorney for Souryavong and Rolon, argued that the District Court abused its discretion by lowering the estimated hours worked, the hourly rate, and the consideration of the awarded damages. The Supreme Court has held that courts should calculate attorney's fees according a "lodestar" method that considers several objective factors. The Court also held that after calculating the lodestar amount, courts may take into account other factors not included in the lodestar approach to determine a reasonable fee. Perdue v. Kenny A., 559 U.S. 542 (2010). The Circuit Court concluded that the District Court properly followed the lodestar method, and that other factors considered in making the award, including evidence of attorney compensation in the same region for matters of similar stature, were properly supported by the record.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153895p.pdf .

Panel: Ambro, Vanaskie, and Restrepo. Circuit Judges

Argument Date: March 28. 2017

Date of Issued Opinion: September 20, 2017

Docket Numbers: Nos. 15-3895 & 16-2214

Decided: Affirmed.

Case Alert Author: Nina F. del Valle

Counsel: Cynthia L. Pollick, Counsel for Appellants; and Harry T. Coleman, Counsel for Appellee

Author of Opinion: Circuit Judge Vanaskie

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mark Rahdert

    Posted By: Susan DeJarnatt @ 09/25/2017 11:50 AM     3rd Circuit     Comments (0)  

  Kenneth Mann v. Palmerton Area School District - Third Circuit
Headline: High school football coach entitled to qualified immunity because the right to be free from deliberate exposure to a traumatic brain injury after exhibiting signs of a concussion in the context of a violent contact sport was not clearly established in 2011

Area of Law: Constitutional right to bodily integrity, qualified immunity

Issue(s) Presented: Was the constitutional right to be free from deliberate exposure to a traumatic brain injury after exhibiting signs of a concussion in the context of a violent contact sport clearly established in 2011 so that a high school football coach was precluded from claiming qualified immunity? Was the school system that employed the coach liable for failure to implement effective policies and procedures for dealing with traumatic brain injury?

Brief Summary: Sheldon Mann, a high school football player for Palmerton Area School District, suffered a traumatic brain injury after sustaining two violent hits during a football practice in November 2011. Sheldon's parents alleged Palmerton Area School District and its high school head football coach, Chris Walkowiak, violated Sheldon's constitutional right to bodily integrity under a state created danger theory of liability. Specifically, they asserted that Sheldon's constitutional right to bodily integrity was violated by Walkowiak's instruction for Sheldon to continue practicing after exhibiting symptoms of a concussion and Palmerton Area's failure to implement effective policies and procedures for injured student athletes.

The Third Circuit determined that Walkowiak, a state actor sued in his individual capacity, was entitled to qualified immunity. Although the Third Circuit held that a jury could have found Walkowiak violated Sheldon's constitutional rights, which satisfies the first prong of the qualified immunity inquiry, the Third Circuit failed to find that the second prong was satisfied - that the right was clearly established at the time of the injury. The Third Circuit concluded that no appellate case decided prior to November 2011 held that a coach violates a student's constitutional rights to bodily integrity by requiring a student to continue practicing after experiencing a violent hit and showing signs of a concussion. A failure to satisfy the second prong entitled Walkowiak to qualified immunity.

The Third Circuit also held that the Manns failed to prove their claim against Palmerton Area School district. The Third Circuit determined that since there was no evidence of recurring football head injuries or a deliberate exposure of injured players to continued risk, there was no basis for concluding that a policy or custom of Palmerton Area or its failure to provide more intense concussion training to its coaches caused a violation of Sheldon's constitutional rights. Therefore, the Third Circuit affirmed the District Court's decision to grant summary judgment in favor of Walkowiak and Palmerton Area.

Extended Summary: Sheldon Mann, a high school football player for Palmerton Area School District, suffered a traumatic brain injury after sustaining two violent hits during a football practice in November 2011. Sheldon's parents brought a lawsuit against Palmerton Area School District and its high school head football coach, Chris Walkowiak, asserting that Walkowiak had violated Sheldon's constitutional right to bodily integrity under a state created danger theory of liability. They argued that Walkowiak's exercise of authority in telling Sheldon to continue participating in football practice after exhibiting signs of a concussion after enduring a violent hit violated Sheldon's constitutional right to bodily integrity. The Manns also asserted Sheldon's constitutional rights were violated as a result of Palmerton Area's failure to assure that injured student-athletes were medically cleared to resume participation in the sport, failure to enforce and enact proper concussion policies, and failure to train the coaches on a safety protocol for head injuries.

First, the Third Circuit analyzed whether Walkowiak was entitled to qualified immunity under 4s U.S.C. §1983. A qualified immunity defense relieves state actors sued in their individual capacity from liability when it is proved that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity requires a determination of (1) whether the facts alleged by the plaintiff make out a violation of a constitutional right, and (2) whether that right was clearly established at the time of the injury. The Third Circuit concluded that the first prong of the qualified immunity inquiry was satisfied as the Manns had presented sufficient evidence that an injured student-athlete participating in a contact sport has a constitutional right to be protected from further harm, and that a state actor violates this right when the injured student-athlete is required to be exposed to a risk of harm by continuing to practice. The Third Circuit determined that a jury could have found that Walkowiak violated this right when he required Sheldon to continue practicing after sustaining one violent hit and exhibiting behaviors consistent with a concussion.

Next, the Third Circuit analyzed the second prong of the qualified immunity inquiry, whether a constitutional right was clearly established at the time of the injury in November 2011. The Third Circuit concluded that this right was not clearly established, noting that no appellate case decided prior to November 2011 held that a coach violates a student's constitutional rights to bodily integrity by requiring a student to continue practicing after experiencing a violent hit and showing signs of a concussion. For this reason the Third Circuit affirmed the District Court's qualified immunity ruling.

Lastly, the Third Circuit held that the Manns failed to prove their claim against Palmerton Area. Under §1983, local governments may be held liable for their own illegal acts when a plaintiff can demonstrate that the municipality itself, through the implementation of a municipal policy or custom, causes a constitutional violation. The Third Circuit found there was no evidence of a pattern of recurring head injuries in the Palmerton Area football program or that Walkowiak or the coaching staff deliberately exposed injured players to the continuing risk of harm that playing football poses. Therefore, there was no basis for concluding that a policy or custom of Palmerton Area or its failure to provide more intense concussion training to its coaches caused a violation of Sheldon's constitutional rights. The Third Circuit affirmed the District Court's decision to grant summary judgment in favor of Walkowiak and Palmerton Area.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/162821p1.pdf

Panel: McKee, Vanaskie and Rendell, Circuit Judges

Argument Date: April 27, 2017

Date of Issued Opinion: September 22, 2017

Docket Number: No. 16-2821

Decided: Affirmed

Case Alert Author: Katherine A. Osevala

Counsel: Howard J. Bashman, Larry E. Bendesky, Adam J. Pantano, and Robert W. Zimmerman Counsel for Appellant; Thomas A. Specht and Robin B. Snyder, Counsel for Appellee.

Author of Opinion: Circuit Judge Vanaskie

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mark Rahdert

    Posted By: Susan DeJarnatt @ 09/25/2017 11:46 AM     3rd Circuit     Comments (0)  

September 21, 2017
  Estate of Jeffrey H. Ware v. Hospital of the University of Pennsylvania - Third Circuit
Headline: The occurrence of nuclear material at a research university falls within the limits of the Price-Anderson Act.

Area of Law: Civil Procedure; statutory interpretation

Issue(s) Presented: Does the Price Anderson Act apply to a claim that alleges that an individual was harmed by radiation used in a research lab? Did the District Court appropriately exercise supplemental jurisdiction in retaining state-law claims?

Brief Summary:

Barbara Boyer filed a claim on behalf of her deceased husband, Jeffrey Ware, alleging that his death was the result of inadequate safety precautions taken to protect him in the lab where he worked at the University of Pennsylvania. The case was removed to federal court on the basis that the claims were covered under the Price-Anderson Act. The District Court agreed with this assessment and ultimately granted summary judgment in favor of the University of Pennsylvania. On appeal, Boyer argued that her claims are not covered under the Price-Anderson Act and that the District Court inappropriately denied her motion to withdraw while maintaining jurisdiction over her remaining state-law claims. The Third Circuit determined that Boyer's claims fell under the Price-Anderson Act because she alleged "public liability" resulting from a "nuclear incident" within the meaning of those terms in the Act. The Court noted that this Act extends to accidents beyond nuclear power plants or weapons facilities because the Act itself mentions research universities. The Third Circuit further affirmed the District Court's decision to deny Boyer's motion to withdraw and to retain jurisdiction over her additional claims. The District Court had discretionary supplemental jurisdiction over any state-law claims that were related to the federal claims and arose out of the same controversy.

Extended Summary:

Barbara Boyer filed this complaint on behalf of her deceased husband, Jeffrey Ware. Ware worked at the University of Pennsylvania ("UPenn") as a neuroscientist, where he studied biological organisms and the effects of radiation. In 2010, Ware was diagnosed with gliosarcoma, which is a form of brain cancer. Ware received chemotherapy and radiation treatment, but died a year later. As a result, Boyer brought this claim, alleging that Ware's cancer resulted from radiation exposure that UPenn failed to protect against. The defendants removed Boyer's complaint to federal court under the Price-Anderson Act, which provides federal jurisdiction for claims of "public liability" arising from a "nuclear incident." The District Court agreed with this removal and granted summary judgment in favor of UPenn. Boyer appealed, challenging the decision that Price-Anderson Act was applicable to her claims and argued that the Court did not have jurisdiction over her remaining state-law claims.

After reviewing the history of the Price-Anderson Act, the Third Circuit determined that the Act provides federal jurisdiction over any public liability action for any occurrence that has caused physical harm as a result of radioactive properties of nuclear material. The Court reasoned that "a public liability action" would be considered, for the most part, any legal liability resulting from a nuclear incident. The Court found that the definition of nuclear incident was intended to be broad and as a result, the jurisdiction grant of the Price-Anderson Act is also broad. Similarly, the Third Circuit disputed Boyer's argument that the grant only applied to nuclear power plants or weapons facilities by noting that the Price-Anderson Act refers to research universities in some of its provisions.

The Third Circuit further noted that the Price-Anderson Act does not only cover defendants that have indemnity agreements with the NRC. When the Act was amended in 1988, the purpose was to expand the scope of federal jurisdiction. The Court reasoned that limiting the applicability only to defendants with indemnity agreements would be contrary to Congressional intent. In reference to Boyer's argument that the Act only applies to defendants with a license to possess nuclear materials, the Court noted that UPenn has such a license, which was issued by the Pennsylvania Department of Environmental Protection Bureau of Radiation Protection. The Third Circuit reasoned that a license does not need to be issued by the NRC directly because the NRC has authority to enter into agreements with states that allow them to issue licenses.

In response to Boyer's argument that the Act only applies to unintentional releases of nuclear energy, the Court concluded that Boyer's claim alleges negligence, not deliberate exposure, so this exception would not be relevant to this case. The Court also disagreed with Boyer's theory that Congress' failure to adopt language pertaining to nuclear pharmacies or hospital medicine departments means that the Act is not applicable to harm from radiation used for medical care. The Court concluded that this language was not relevant to the facts at hand.

The Court determined that the District Court's denial of Boyer's motion to withdraw was appropriate because Boyer waited too long to file a notice of dismissal. When Boyer filed her notice, UPenn had already filed its answer. Due to the late timing, the District Court had discretion whether or not to allow the withdrawal. The District Court appropriately decided that the defendant would suffer prejudice if the claims were withdrawn because they had already utilized resources to produce expert reports and submit documents. In addition, the District Court had authority to exercise supplemental jurisdiction over the remaining state-law claims. The District Court was correct in determining that the state claims were sufficiently related to the federal claim that they were part of the same case.

The Third Circuit affirmed the District Court's decisions.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163801p.pdf

Panel: Ambro, Restrepo, and Cohen, Circuit Judges.

Argument Date: June 28, 2017

Date of Issued Opinion: September 18, 2017

Docket Number: No. 16-3801

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: Glenn Ellis, Aaron Freiwald, and Mathew Bravette, Counsel for Appellant; Donald Jose, Theresa Sachs, Daniel Sherry, and Donna Modestine, Counsel for Appellees.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mark C. Rahdert

    Posted By: Susan DeJarnatt @ 09/21/2017 10:02 AM     3rd Circuit     Comments (0)  

September 20, 2017
  Elias et al. v. Rolling Stone, LLC et al. - Second Circuit
Headline: Second Circuit Permits Former University of Virginia Students to Proceed with a Defamation Lawsuit Against Rolling Stone

Area of Law: Defamation.

Issue(s) Presented: Whether Plaintiffs, three former University of Virginia Phi Kappa Psi fraternity members, sufficiently pled that a Rolling Stone article, subsequently retracted as fabricated by the source, about an alleged brutal gang rape at the fraternity house, stated actionable defamation claims brought individually and under a small group theory.

Brief Summary: Elias, Fowler, and Hadford, three former male University of Virginia's Phi Kappa Psi's fraternity members, commenced a lawsuit against Rolling Stone magazine claiming defamation for statements made in an article and during an interview with Erdely, the article's author, about an alleged brutal gang rape at the fraternity house. Reversing in part, the Second Circuit held that the United States District Court for the Southern District of New York erred in dismissing Elias and Fowler's individual claims and the small group defamation claim.

The link to the full opinion will be added when the opinion is reposted on the Second Circuit's website.

Extended Summary: George Elias IV, Ross Fowler, and Stephen Hadford (Plaintiffs) were active members of the University of Virginia's Phi Kappa Psi fraternity in the fall of 2012. In November, 2014, Rolling Stone magazine published an online article authored by Sabrina Rubin Erdely and titled, "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA." Generating worldwide headlines, it recounted a brutal three-hour gang rape in the fall of 2012 of "Jackie," a woman whose interview was the primary source for the article. As a follow-up to the published piece, Erdely was interviewed as a guest on a podcast about the story. Weeks later, after it learned that the story was fabricated, Rolling Stone retracted the article and issued an apology.

Reviewing the United States District Court for the Southern District of New York's decision to dismiss Plaintiffs' complaint in its entirety, the Second Circuit reversed the holding in part, concluding that the District Court improperly rejected Plaintiffs' small group defamation claim and, although it was a close call, also erred in dismissing individual claims relating to Elias and Fowler.

To state a claim for defamation in New York, a complaint must allege a false statement that is published to a third party without privilege or authorization, and, in most cases, that causes harm. To succeed, a plaintiff must allege that the public acquainted with the party and the subject would recognize the plaintiff as a person to whom the statement refers. The Court held that based on the fact that Elias graduated the same year as the alleged perpetrators, lived in the fraternity house in the only bedroom that could fit the description of the alleged location of the rape, and some people who knew him concluded he was one of the alleged attackers, Elias sufficiently pled that the article was "of and concerning" him. The Court reached the same conclusion with Fowler's claim. The court agreed with the district court that Hadford's allegation - that because he rode his bike through campus regularly, readers would conclude that he was the person Jackie said she saw riding a bike in the article- was too speculative to support a defamation claim as to him individually.

Finding that a reader of the article could conclude that all Phi Kappa Psi members were implicated in the alleged rapes, the Court, reversing the district court, also held that Plaintiffs could proceed under a theory of small group defamation. Relying on Brady v. Ottaway Newspapers, Inc., a New York Appellate Division, Second Department case, the Second Circuit considered the small size of Phi Kappa Psi, the fact that the allegations taken as a whole could support the conclusion that many or all fraternity members participated in alleged gang rape and all members turned a blind eye to the crimes, and the prominence of the fraternity on the University's close-knit campus, to conclude that Plaintiffs plausibly alleged the article was "of and concerning" all then-members of the fraternity. Lastly, the court upheld the district court's dismissal of claims based upon Erdely's podcast statements because statements that express opinions of the speaker do not constitute defamation and Erdely's statements on the podcast were speculative.

In a separate opinion, Circuit Judge Lohier concurred with the majority's ruling on the individual claims but disagreed with the application of Brady to the small group claim. Judge Lohier contended that Brady was both factually inapposite to the present case and the only New York Appellate Division opinion to evaluate how to analyze small group defamation claims. Accordingly, he argued that the Second Circuit should certify the issue of the appropriate standard for small group defamation to the New York Court of Appeals for clarification. In the alternative, he would have affirmed dismissal of claims under that theory.

Panel: Circuit Judges Cabranes and Lohier; District Judge Forrest

Argument Date: 04/27/2017

Date of Issued Opinion: 09/19/2017

Docket Number: No. 16-2465-cv

Decided:
Affirmed in Part and Reversed in Part

Case Alert Author:
Joanna Kusio

Counsel: Alan Lee Frank, Alan L. Frank Law Associates, P.C. for Plaintiffs‐Appellants; Elizabeth A. McNamara (Samuel M. Bayard, Abigail B. Everdell, Davis Wright Tremaine LLP; Alison Schary, Davis Wright Tremaine LLP, on the brief), Davis Wright Tremaine LLP for Defendants‐Appellees.

Author of Opinion: District Judge Forrest (majority); Circuit Judge Lohier (concurring in part and dissenting in part)

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond

Edited: 09/22/2017 at 08:48 AM by Elyse Diamond

    Posted By: Elyse Diamond @ 09/20/2017 11:22 AM     2nd Circuit     Comments (0)  

September 12, 2017
  United States v. Jones
Case Name: United States v. Jones

Headline: Second Circuit Holds That New York First-Degree Robbery is Categorically a Crime of Violence Under the Career Offender Guideline

Area of Law: Criminal

Issue(s) Presented: Whether New York first-degree robbery categorically qualifies as a crime of violence under the residual clause of the Career Offender Guideline, in light of the Supreme Court's recent decision in Beckles v. United States.

Brief Summary: While serving a 92-month federal sentence in a halfway house, Corey Jones had an altercation with two Deputy U.S. Marshals. He was ultimately convicted of assaulting a federal officer. Because of this conviction and his previous record (which included a conviction for New York first-degree robbery), Jones satisfied the elements of the Career Offender Guideline, which provides longer sentences for career offenders. He was sentenced to fifteen years' imprisonment. Jones appealed, and the Second Circuit initially ruled in his favor, largely based on the argument that the residual clause of the Career Offender Guideline - which provides that a crime of violence includes any offense that "involves conduct that presents a serious potential risk of physical injury to another" - was void for vagueness. Shortly thereafter, however, the Second Circuit vacated its holding to await the Supreme Court's decision in Beckles v. United States, where the Court would address whether the residual clause was unconstitutionally vague. In Beckles, the Supreme Court held that the residual clause of the Career Offender Guideline is constitutional. The Second Circuit then concluded that New York first-degree robbery categorically qualifies as a crime of violence under the residual clause, and affirmed Jones' sentence.

Extended Summary: The Career Offender Guideline ("Guideline") is an enhanced sentencing standard used when defendants in federal court satisfy certain enumerated criteria. A defendant is a career offender if he is at least eighteen years old when he committed the current offense for which he was convicted, the current offense is a felony that is a "crime of violence," and he has at least two prior felony convictions of "crimes of violence." In this context, a "crime of violence" is a legal term that may be satisfied by two different definitions within the Guidelines. At issue in this case is the second definition, which lists specific offenses that apply as crimes of violence and ends with the "residual clause," which incorporates into the second definition any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Recently, the United States Supreme Court has decided two cases that analyze residual clauses. The first, Johnson v. United States, involved the residual clause of the Armed Career Criminal Act, which is nearly identical to the residual clause in the Guideline. In Johnson, the Supreme Court determined that the residual clause was void for vagueness. Following oral argument in the Jones case, however, the Supreme Court determined in Beckles v. United States that the residual clause in the Guideline is not void for vagueness.

In 2013, Jones was completing a federal sentence for unlawful gun possession in a halfway house. He verbally threatened a staff member, which violates the rules of the halfway house, and was remanded to custody of the Bureau of Prisons. Two U.S. Marshals arrived to arrest Jones and bring him into custody, but Jones assaulted one of the Marshals during the arrest, which violated a federal statute. In the District Court for the Eastern District of New York, a jury convicted Jones of assaulting a federal officer. The District Court determined that this conviction satisfied the requirements of the Guidelines because a first-degree robbery is a crime of violence under the residual clause. Under the Guideline, the District Judge sentenced Jones to 180 months in prison to be followed by three years of supervised release. Jones appealed, relying on the Johnson holding to argue that the residual clause in the Guideline should be void for vagueness. The Second Circuit initially agreed and reversed the District Court's conviction. However, the Second Circuit subsequently vacated its decision to await the Supreme Court's decision in Beckles v. United States. In Beckles, the Supreme Court analyzed the Guideline's residual clause and found that it was not void for vagueness. The Second Circuit relied on Beckles to determine that New York first-degree robbery applies as a crime of violence under the residual clause because a person who "forcibly steals property from a person, while armed with a deadly weapon, engages in conduct that presents a serious potential risk of physical injury to another." After making this determination, the Second Circuit affirmed the District Court's conviction of Jones. To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...1518_complete_opn.pdf

Panel: Judges Walker, Calabresi, and Hall

Argument Date: 04/27/2016

Argument Location: New York

Date of Issued Opinion: 09/11/2017

Docket Number: No. 15-1518-cr

Decided: Affirmed

Case Alert Author: James Creech

Counsel: Bridget M. Rohde, Acting Assistant United States Attorney, for Plaintiff-Appellee Corey Jones, Matthew B. Larsen, Assistant Federal Defender, for Defendant-Appellant

Author of Opinion: Judge Walker, Jr.

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/12/2017 09:21 PM     2nd Circuit     Comments (0)  

September 8, 2017
  United States v. Wells Fargo & Co. - Second Circuit
Headline: Second Circuit Remands Case to District Court to ApplyLess Stringent Requirement for False Claims Act Lawsuits Based Upon Recent United States Supreme Court Decision

Area of Law: False Claims Act, Fraud

Issue(s) Presented: Whether the requirements for claims under the False Claims Act have changed in the wake of a recent United States Supreme Court decision.

Brief Summary: The United States District Court for the Eastern District of New York dismissed a False Claims Act lawsuit in 2015, which claimed that Wells Fargo had falsely certified compliance with federal banking laws in order to obtain more favorable borrowing rates from the Federal Reserve. The United States Supreme Court subsequently vacated and remanded this decision in light of its 2016 Supreme Court decision in Universal Health Services, Inc. v. United States ex Escobar, which abolished created a new standard for evaluating the adequacy of FCA claims. On remand, the Second Circuit analyzed Escobar's materiality discussion and remanded the case back to the District Court for evaluation of the case under this new standard. To read the full opinion, please visit: United States v. Wells Fargo & Co.

Significance, if Any: Case changes the requirements for pleading a claim under the False Claims Act

Extended Summary:
In 2011, Robert Kraus and Paul Bishop ("the complainants") brought a lawsuit on behalf of the federal government against Wells Fargo. The complainants claimed that Wells Fargo had violated the False Claims Act ("FCA") by falsely certifying their compliance with federal banking laws in order to obtain more favorable borrowing rates from the Federal Reserve. The United States District Court for the Eastern District of New York dismissed the lawsuit in 2015, and the Second Circuit affirmed this dismissal, relying on the failure of the complainants to meet two requirements laid out in a 2001 Second Circuit case, Mikes v. Straus. The first requirement laid out in Mikes, known as the express-designation requirement, dictated that false certification only be implied when the statute in question expressly states that payment is contingent on compliance with the statute. The second requirement, known as the particularity requirement, dictated that the sued party must have falsely certified compliance with a particular statute, regulation, or contractual term to satisfy an express false certification claim.

The United States Supreme Court vacated and remanded this case in light of a 2016 United States Supreme Court decision in Universal Health Services, Inc. v. United States ex Escobar. Escobar was also a false certification case, and as the Second Circuit points out in its opinion, the Escobar decision abrogated the two requirements set out in Mikes. With respect to the express-designation requirement, the Supreme Court held that misleadingly omitting critical facts is sufficient on its own, regardless of whether accurate information is expressly made a prerequisite in the statute. Furthermore, the Supreme Court held that liability under the FCA must simply be grounded within its text, "including the 'well-settled meaning[s] of common law terms'" used, even if not defined, to achieve the goals of the particularity requirement.

Accordingly, the Second Circuit held in this per curiam decision that the express-designation and particularity requirements were no longer the appropriate materiality standards to be applied in FCA cases. Instead, the Second Circuit found the materiality standard set out by the Supreme Court in Escobar is that an FCA claim is valid where the alleged misrepresentation is material to the Government's decision to make a payment. Because this standard was not applied by the district court in the Wells Fargo case, the Second Circuit remanded the case back to the district court to apply the materiality standard for determining whether the complainants adequately alleged an FCA claim.

Given this relaxation of requirements for FCA claims, and the new materiality standard, the Supreme Court and Second Circuit's opinions could affect how FCA lawsuits are brought going forward. To read the full opinion, please visit: United States v. Wells Fargo & Co.

Panel: Chief Judge Katzmann and Circuit Judges Sack and Lohier

Argument Date: 03/01/2016

Date of Issued Opinion: 09/07/2017

Docket Number: 15-2449

Decided: Vacated and Remanded

Case Alert Author: Alexandra Dobles

Counsel: Thomas C. Goldstein & Tejinder Singh, Goldstein & Russell, P.C. and Rachel Grier, Berg & Androphy for Plaintiffs-Appellants; Amy Pritchard Williams, Sara S. Ash, & Stephen G. Rinehart, Troutman Sanders LLP for Defendants-Appellees

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Elyse Diamond

    Posted By: Elyse Diamond @ 09/08/2017 07:59 AM     2nd Circuit     Comments (0)  

September 5, 2017
  M.C. v. Antelope Valley High School District
Headline:Ninth Circuit panel reverses a district court's decision which deferred to an administrative law judge's finding that a school district did not violate the Individuals with Disabilities Education Act (IDEA) and due process when the district unilaterally changed a disabled student's Individualized Education Plan (IEP) without notify the student's parent.

Areas of Law: Administrative Law; Education; Disabled Students' Rights

Issues Presented: 1) Whether a school district's failure to notify a parent of changes to a child's IEP, and failure to file a response to plaintiff's due process complaint amounted to a violation of the IDEA and due process. 2) Whether the burden of proving a substantive violation of the IDEA, which normally rests on the parent alleging a violation, remains when that party has no actual knowledge of unilateral changes made by the school district until the day of the administrative hearing.

Brief Summary: The Ninth Circuit reversed the district court's affirmance of an administrative law judge's (ALJ) decision which held Defendant-Appellee Antelope Valley Union High School District (the District) did not violate the IDEA and due process when it failed to notify the parent of a disabled student of unilateral changes made to an IEP. The court remanded to the district court all substantive issues for determination.

Significance: A unilateral change by a school district to a student's IEP constitutes a procedural violation of the IDEA.

Extended Summary: M.C., a student at a high school operated by the District, suffers from a disease causing blindness and other deficits which caused developmental delays. In a meeting with the District's administrators and instructors M.C.'s parent signed an IEP setting out goals and services for the student. The District alleged the IEP included a mistaken term and changed it unilaterally without ever notifying M.C.'s parent.

M.C.'s parent later filed an administrative complaint claiming the District violated the IDEA as the District did not provide a free appropriate public education (FAPE). The parent was unaware of the amendment to the IEP. After a three-day hearing, the ALJ found the District did not violate the IDEA or due process. The district court deferred to the ALJ's decision and affirmed.

The Ninth Circuit reversed and remanded the case to the district court for further proceedings.
The court recognized that the IDEA guarantees students with disabilities a FAPE specifically designed for the unique needs of each individual. Congress intentionally placed procedural safeguards for parental input at every step of the IEP process and gave equal weight to both meaningful parental involvement as well as any substantive standard. IEPs are not normally signed in presence of counsel, so adherence to procedural safeguards is keenly important to avoid prejudice to the parent.

The Ninth Circuit held that the District's unilateral amendment to the IEP was a procedural violation of the IDEA. It found an IEP is a contract that embodies a binding commitment providing notice to a school district and parent as to what services will be provided to the student. Thus, the District was not entitled to make unilateral changes to the document. The Ninth Circuit also held that the District's changing of a term in the IEP relating to assistive technology devices violated M.C.'s right to a FAPE.

The final procedural error discussed in the opinion is the District failed to file a response to M.C.'s complaint. The Ninth Circuit held that when a school district fails to file a timely answer, an ALJ must not go forward with the hearing. Instead, it must order a response and shift the cost of the delay to the school district, regardless of who is ultimately the prevailing party.

The court remanded the substantive claims to the district court as they were never addressed by either the ALJ or the district court. It held that the burden of proof shifts to the District to show that the services the student actually received are substantively reasonable. M.C.'s parent was awarded attorneys' fees as prevailing party on the appeal.

To read the full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...17/03/27/14-56344.pdf

Panel: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.

Argument Date: August 2, 2016

Date of Issued Opinion: March 27, 2017

Docket Number: 2:13-cv-01452-DMG-MRW

Decided: Reversed and remanded

Case Alert Author: M.D. Shapiro

Counsel: Christian M. Knox (argued), Colleen A. Snyder Holcomb, Daniel R. Shaw, and F. Richard Ruderman, Ruderman & Knox LLP, Sacramento California, for Plaintiff-Appellants.

David A. Seeley (argued) and Richard D. Oppenheim, Jr., Sylvester Oppenheim & Linde, Encino, California, for Defendant-Appellee.

Author of Opinion: Judge Alex Kozinski

Circuit: Ninth Circuit

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 09/05/2017 04:19 PM     9th Circuit     Comments (0)  

August 30, 2017
  Broadway Grill, Inc. v. Visa, Inc.
Headline: The Ninth Circuit held that plaintiffs may not amend their complaint, after a case has been removed to federal court, to change the definition of the class so as to eliminate minimal diversity and thereby divest the federal court of jurisdiction. The panel clarified that Benko v. Quality Loan Service Corp., that created an exception to this general rule unique to the Ninth Circuit, allows amendments only for purposes of clarifying the relationship between the parties and the effect of the class claims on particular defendants.

Area of Law: Civil Procedure

Issue Presented: Whether the representative party to a class action filed in state court may amend its complaint after the case has been removed to federal court under the Class Action Fairness Act, 28 U.S.C. §1332(d), in order to alter the plaintiff class so as to eliminate minimal diversity and divest the federal court of jurisdiction.

Brief Summary: The Ninth Circuit panel reversed the district court's order remanding a class action filed by Broadway Grill, Inc. that had been removed to federal court under the Class Action Fairness Act (CAFA) on the basis of minimal diversity between non-California citizens and a California defendant. After removal, the district court had permitted Broadway Grill to eliminate minimal diversity by amending its complaint to remove from the plaintiff class non-California citizens and include only California citizens. In granting leave to amend, the district court relied on the Ninth Circuit's decision in Benko v. Quality Loan Service Corp., 789 F.3d 1111 (9th Cir. 2015), which allows for amendment after removal under CAFA in limited circumstances so that the plaintiff may clarify the nature of the action for purposes of a federal jurisdictional analysis. On review, the Ninth Circuit panel distinguished Benko from the instant case, finding that Broadway Grill did not seek to amend its complaint to clarify the nature of the parties or their allegations for purposes of a jurisdictional analysis under CAFA, but, rather, to change the very makeup of the class itself so as to eliminate minimal diversity and divest the district court of jurisdiction. The panel found the amendment fell outside the parameters of Benko by changing the nature of the action itself.

Significance: Plaintiffs to a class action originally filed in state court may not alter the makeup of the class after the case is removed under the Class Action Fairness Act (CAFA), 28 U.S.C. §1332(d), in order to eliminate minimal diversity requirements and divest the federal court of jurisdiction.

Extended Summary: Broadway Grill, Inc., a California restaurant, filed a class action in California state court against Visa, Inc., a citizen of California and Delaware, alleging violations of state antitrust laws through rate fixing and by the company's practice of not allowing merchants to apply a surcharge to customers using credit cards. The complaint described the plaintiff class as "all California individuals, businesses and other entities who accepted Visa-branded cards in California since January 1, 2004 . . . ." The class included both California and non-California citizens.
Visa, Inc. removed the case to the District Court for the Northern District of California under the Class Action Fairness Act (CAFA), 28 U.S.C. §1332(d)(2), which provides that district courts shall have original jurisdiction of class actions where: (1) the matter in controversy exceeds $5,000,000; (2) there are 100 or more plaintiffs; and (3) any member of the plaintiff class is a citizen of a different state than any defendant (minimal diversity requirement). Because the plaintiff class included merchants doing business in California who were not California citizens, CAFA's minimal diversity requirement was met.

Following removal, Broadway Grill moved to remand the case back to California state court on the ground that the case fell within one of CAFA's specific exceptions to federal jurisdiction - the so-called "local controversy" exception, 28 U.S.C. §1332(d)(4). Under this exception, federal jurisdiction is denied in cases where: (1) more than two-thirds of plaintiff class members are citizens of the state of filing; (2) at least one defendant from whom "significant relief" is sought, and whose alleged conduct forms a "significant basis" for the plaintiff class' claims, is also a citizen of that state; (3) principal injuries as a result of the alleged conduct of each defendant were incurred in that state; and (4) no other class action has been filed asserting the same or similar allegations against any of the defendants in the 3-year period preceding filing; or two-thirds or more of the plaintiff class and the primary defendants are citizens of the state of filing. The district court denied the motion to remand because Broadway Grill was unable to show that two-thirds of the plaintiff class was citizens of California.

After its motion to remand was denied, Broadway Grill sought leave to amend the complaint in order to change the plaintiff class so that it included only "California citizens," which would eliminate minimal diversity and divest the district court of jurisdiction. The district court noted that, generally, jurisdiction is determined at the time of removal, and that amendments made to the complaint after removal cannot eliminate diversity. However, leave to amend was granted based on the exception articulated in Benko v. Quality Loan Service Corp., 789 F.3d 1111 (9th Cir. 2015), which allows for amendment of the complaint after the case is removed under CAFA so that the plaintiff may clarify the nature of the action in order for the federal court to determine whether it has jurisdiction. This exception appeared to be unique to the Ninth Circuit.

The panel cited to several recent cases demonstrating the uncertainty the Benko exception had created amongst the district courts as to when post-removal amendments to the complaint are permitted. See Lopez v. Aerotek, Inc., 2017 WL 253948, at *2 (C.D. Cal. Jan. 19, 2017) (amendment not allowed for purpose of adding a new defendant who might qualify for local controversy exception); Rossetti v. Stearn's Prod. Inc., 2016 WL 3277295, at *1 (C.D. Cal. June 6, 2016) (amendment not allowed for purpose of changing class from one including citizens of numerous states to one including only citizens of California); Chen v. eBay, Inc., 2016 WL 835512, at *2 n.1 (N.D. Cal. Mar. 4, 2016) (allowed amendment limiting a class to citizens of California, not residents, and ordered remand); In re Anthem Inc. Data Breach Litig., 129 F.Supp. 3d 887, 894-96 (N.D. Cal. 2015) (allowed amendment limiting class only to citizens of Missouri, not residents, and ordered remand).
The panel distinguished Benko from the instant case and held Broadway Grill's amendment fell outside the parameters of that case. The panel explained that Benko case allowed the plaintiffs to amend their complaint after removal to clarify the nature of the complaint's allegations against one of the defendants for a federal jurisdiction analysis under CAFA, not to change the makeup of the class. In Benko, the plaintiffs only amended their complaint to give "estimates of the percentage of total claims asserted against [the in-state defendant]" for purposes of satisfying §1332(d)(4) of CAFA, also known as the "local controversy" exception to federal jurisdiction. Benko, 789 F.3d at 1117. In the instant case, however, Broadway Grill did not amend their complaint to clarify the nature of the parties for purposes of a federal jurisdictional analysis under CAFA, but rather, changed the very makeup of the class itself from one including both California and non-California citizens, to one including only California-citizens so as to eliminate minimal diversity and divest the district court of jurisdiction.

The panel explained the reasoning behind its decision in Benko was that a complaint originally drafted for state court may not address certain issues that are specific to CAFA, such as the "local controversy" exception allowing for remand back to state court following removal. Therefore, in limited circumstances, leave to amend post-removal should be granted to clarify issues affecting federal jurisdiction under CAFA. The panel reasoned that in contrast, a class definition must always be included in the complaint for a class action, no matter whether if it is filed in state or federal court. Thus, Broadway Grill's amendment to their complaint did not serve to explain the nature of the allegations for jurisdictional analysis purposes under CAFA as in Benko, instead, it changed the nature of the action itself. Also, the panel noted that the Benko decision itself states that federal jurisdiction is favored for class actions under CAFA.

The panel noted that the other circuit courts of appeals have unanimously held that the decision whether an order to remand is proper is to be determined at the time of removal based on the pleadings. See Pullman Co. v. Jenkins, 305 U.S. 534, 537-38 (1939). The panel also stated these circuit court decisions are consistent with the statutory language of § 1332(d)(7), which states minimal diversity is determined at time of removal ("Citizenship of the members of the proposed plaintiff class shall be determined . . . as of the date of the complaint or amended complaint . . . indicating the existence of Federal jurisdiction."). Therefore, Broadway Grill is precluded from amending their complaint after removal in order to eliminate diversity and divest the federal court of jurisdiction. The leading case for application of this rule in the in the context of CAFA is Mondragon v. Capital One Auto Fin., 736 F.3d 880, 883 (9th Cir. 2013).

In conclusion, the Ninth Circuit panel found that, because minimal diversity existed at the time of removal based on the pleadings, the general rule preventing post-removal amendment from divesting federal jurisdiction over the matter must be applied. The Benko exception allowing for post-removal amendment of the complaint is limited to clarifying the relationship between the parties, and how plaintiff class claims affect certain defendants for purposes of a jurisdictional analysis under CAFA. Therefore, Broadway Grill's amendment changing the makeup of the plaintiff class itself in order to divest the district court of jurisdiction fell outside that exception. Accordingly, the district court's order remanding the case of the matter back to state court was reversed.

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/05/18/17-15499.pdf

Panel: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit Judges, and Steven Paul Logan, District Judge for the District of Arizona, sitting by designation.

Argument Date: April 21, 2017

Date of Issued Opinion: May 18, 2017

Docket Number: 17-15499; 4:16-cv-04040-PJH

Decided: Reversed and Remanded

Case Alert Author: Michael J. Thies

Counsel:
Matthew A. Eisenstein (argued), Washington, D.C.; Sharon D. Mayo and Robert J. Vizas, San Francisco, California; for Defendants-Appellants
Nancy L. Fineman (argued), and Joseph W. Cotchett, Cotchett Pitre & McCarthy LLP, Burlingame, California; for Plaintiff-Appellee

Author of Opinion: Judge Mary M. Schroeder

Circuit: Ninth

Case Alert Supervisor: Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 08/30/2017 06:21 PM     9th Circuit     Comments (0)  

August 24, 2017
  S.B. v. County of San Diego
Headline: Ninth Circuit panel, in reversing district court's denial of qualified immunity from Fourth Amendment liability in use of excessive force, takes to heart the U.S. Supreme Court's recent admonishment - particularly to the Ninth Circuit - "not to define clearly established law at a high level of generality" in holding that the officer in question was entitled to qualified immunity because he was not put on "clear notice," by any specific case, that using deadly force "in these particular circumstances" would be excessive.

Areas of Law: Criminal Law, Constitutional Law, Civil Rights.

Issues Presented: Whether the panel could identify a case where an officer, acting under similar circumstances as the officer alleged to have violated plaintiff' under similar circumstances, was held to have violated the Fourth Amendment.

Brief Summary: Police officers responded to a call about an individual who was intoxicated and acting aggressively. When the police officers arrived on the scene, they observed the suspect with knives in his pockets. After being told to place his hands on his head, the man reached for a knife, and a police officer used deadly force to end the situation. The district court granted summary judgment in favor of the plaintiff, holding that that the officer did not have qualified immunity. The county appealed the summary judgment and the Ninth Circuit panel reversed the district court.

Significance: In light of the U.S. Supreme Court's recent admonition in White v. Pauly, 137 S. Ct. 548 (2017) "not to define clearly established law at a high level of generality, the denial of qualified immunity to a police officer who uses deadly force is improper where the court cannot identify a specific case that put the officer on "clear notice that using deadly force in these particular circumstances would be excessive."

Extended Summary: On August 24, 2013, Deputies Moses and Vories overheard a "5150" radio call about family members concerned for their safety because an individual, David Brown, with mental issues was intoxicated and acting aggressively. The two deputies went to Brown's house where another deputy, Billieux, met them.

All three deputies entered the home, looking for Brown. The deputies could hear cabinets or drawers opening and closing from the kitchen area. Deputies Moses and Vories entered the kitchen and saw Brown standing with kitchen knives sticking out of his pockets. After Brown initially complied with the deputies demands of raising his hands in the air and kneeling to floor, Brown then looked at Deputy Vories, and reached back with his right hand to grab a knife. Brown then moved in a manner that caused deputies to believe he was trying to stand up. Deputy Moses, believing that Deputy Vories was in imminent harm, shot Brown three or four times, resulting in Brown's death.

Plaintiffs filed action against the defendants under a 42 U.S.C. § 1983 claim for excessive force in violation of the Fourth Amendment and a wrongful death claim under California law. In August 2015, the district court heard arguments on defendants' motion for summary judgment. Plaintiffs urged that the court deny the motion due to inconsistencies in the deputies' depositions. The district court agreed and denied the motion for three inconsistencies: (1) whether Brown was on his knees or attempting to stand when he grabbed the knife and was shot; (2) whether Moses could see the other officers clearly when he fired his weapon; and (3) the distance between Brown and Vories when Brown grabbed the knife. The district court also found inconsistencies over whether Moses's conduct violated clearly established law, making qualified immunity inappropriate. Defendants then filed an interlocutory appeal to challenge the denial of qualified immunity to Moses.

In determining whether an officer is entitled to qualified immunity, the court used the rule set forth by C.V. by & through Villegas v. City of Anaheim, 823 F.3d 1252 (9th Cir. 2016), that courts will consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct. The panel started their opinion by first looking at whether a constitutional right was violated.

In addressing the first issue, the panel stated that the Fourth Amendment permits law enforcement to use "objectively reasonable" force and articulated the following factors for evaluating reasonableness including: (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether the suspect actively resisted arrest or attempted to escape. However, the court declared that the most important factor to be considered is whether the suspect posed an immediate threat to the safety of the officers or others.

When viewing the facts in the light most favorable to the plaintiffs, the court determined that a reasonable jury could find that Brown was on his knees when shot, Moses could not see other officers at the time of the shooting, officers did not order Brown to drop the knife when he went to grab it, etc. Based on these findings, the panel concluded that a reasonable jury could conclude that Moses's use of deadly force was not objectionably reasonable and thus violated Brown's Fourth Amendment right against excessive force.

Next, the court looked to the second element of whether qualified immunity should have been granted: whether the constitutional right was clearly established at the time of the officer's alleged misconduct. The court declared that to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what the official is doing violates that right.

Addressing the second issue, the panel "acknowledge[d] the U.S. Supreme Court's recent frustration with failures [of the lower court's] to heed its holdings" and its admonition "not to define clearly established law at a high level of generality." City & County of San Francisco v. Sheehan, 135 S. Ct. 1765 at 1775-76. Noting the Supreme Court's statement in White v. Pauly, 137 S. Ct. 548, 551 (2017) that "n the last five years, [the Supreme Court] has issued a number of opinions reversing federal courts in qualified immunity cases," the panel stated that it "hear[d] the Supreme Court loud and clear" that, "before a court can impose liability on Moses, we must identify precedent as of [the night of the shooting] that put Moses on clear notice that using deadly force in these particular circumstances would be excessive." The Panel could not find such precedent. The panel distinguished on the facts closest analogous case. In Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011), the individual was a suicidal man who was intoxicated and threatened to kill himself while holding a knife to his throat. Brown's "grabbing the knife from his pocket despite orders to place his hands on his head was more threatening" to Moses. "If the person is armed . . . [then] a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat." George v. Morris, 736 F.3d 829, (9th Cir. 2013).

Accordingly, the panel reversed the district court's denial of summary judgment finding that it was not clearly established that using deadly force in this situation, even viewed in the light most favorable to plaintiffs, would constitute excessive force under the Fourth Amendment.

To real the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/05/12/15-56848.pdf

Panel: Before: Milan D. Smith, Jr. and John B. Owens, Circuit Judges, and Edward R. Korman, District Judge.

Argument Date: February 17, 2017.

Date of Issued Opinion: May 12, 2017

Docket Number: 15-56848

Decided: Reversed

Case Alert Author: Kyle Case

Counsel: James Chapin (argued), Senior Deputy County Counsel; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendants-Appellants.
Megan R. Gyongyos (argued) and Bryan T. Dunn, The Cochran Firm California, Los Angeles, California, for Plaintiffs-Appellees.

Author of Opinion: Judge Owens

Circuit: Ninth

Case Alert Supervisor: Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 08/24/2017 07:04 PM     9th Circuit     Comments (0)  

  Resh v. China Agritech
Headline:
Reversing the district court's dismissal of a would-be class action lawsuit on ground of untimeliness, the panel held that the named plaintiffs in the current class action - who were unnamed members in a previous uncertified class action lawsuit - had "availed themselves" of American Pipe tolling and are thus not time barred from bringing a subsequent class action suit on the same underlying claim.

Areas of Law:
Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure
Issue Presented:
(1) Whether the dismissal of the class action due to timeliness was a final and appealable judgment where the district court had not set forth its judgment in a separate document as required by FRCP 58.
(2) Whether unnamed plaintiffs in a class action enjoy "tolling" of the statute of limitations on their claim, so that, as named plaintiffs, they could timely bring a subsequent class action on the same underlying merits.

Brief Summary:
Plaintiffs were joined as unnamed members of two would-be class actions against China Agritech, Inc. for alleged violations of the Securities Exchange Act of 1934. Both class actions were denied class certification. Before the district court could issue final judgment on a separate document, plaintiffs filed the instant would-be class action as named plaintiffs.

The district court dismissed plaintiff's complaint because the statute of limitations had run during the previous class actions. The panel reversed on the grounds that plaintiff's current action was timely because the deadline had tolled during the previous class actions. The panel remanded, ordering the district court to determine whether plaintiff's would-be class could be properly certified, and whether plaintiff's complaint should be precluded.

Significance:
Unnamed members of a would-be class action will have their claim's statute of limitations tolled, so that, as named plaintiffs, they may bring a subsequent class action on the same merits. The panel's decision effectively expands application of prior case law that had limited tolling to allow the claims only of individuals, to claims asserted on behalf of unnamed members of an entirely new class action.

Extended Summary:
China Agritech, Inc. was a holding company listed on the NASDAQ stock exchange. Through a series of writings alleging fraud, China Agritech's stock value declined until eventually it was formally dropped from the public trading market.

On February 11, 2011, Theodore Dean filed a putative class action against China Agritech and its directors. The district court denied the Dean plaintiffs' motion for class certification on the ground that the Dean plaintiffs had failed to establish the predominance requirement of Rule 23(b)(3). After the district court's denial of class certification was appealed under Rule 23(f) and affirmed, the Dean plaintiffs settled their individual claims.

On October 4, 2012, Kevin Smyth filed a similar complaint on behalf of the same would be class in Dean. The district court denied the Smyth plaintiffs motion for class certification on the grounds that the Smyth plaintiffs' personal claims failed the typicality requirement of Rule 23(a)(3).

Subsequently, Michael Resh, an unnamed plaintiff in Dean and Smyth, filed a would-be class action, as named plaintiff, against China Agritech on June 30, 2014. The district court dismissed the Resh plaintiffson the theory that the would-be class action was time-barred under the applicable two-year statute of limitations.

The Resh plaintiffs argued that his would-be class action was timely because American Pipe tolled the statute of limitations during the pendency of the Dean and the Smyth actions. While the district court ruled that American Pipe tolled the applicable statute of limitations as to all asserted members of the class, it only allowed class members to file separate individual actions prior to the expiration of his or her own limitations period, not an entirely new class action. The district court declined to expand American Pipe's tolling rule to include "an entirely new class action based upon a substantially identical class."

On appeal, the Ninth Circuit panel first determined that it had appellate jurisdiction, ruling that the district court's dismissal of the putative class action as untimely was a final and appealable judgment even though the district court had not set forth its judgment in a separate document as required by FRCP 58.

Federal Rule of Civil Procedure Rule 58(a) required the district court's judgment to be set forth in a separate document. However the absence of such document does not render that dismissal non-appealable. The panel cited Federal Rule of Appellate Procedure 4(a)(7)(B), which states "[a] failure to set forth a judgment or order on a separate document when required by . . . Rule 58(a) does not affect the validity of an appeal from that judgment or order."

Accordingly, even if the district court had yet to publish their dismissal in a separate document, the Resh plaintiffs would still be able to appeal. Thus, the panel ruled the Court of Appeals had appellate jurisdiction to hear the Rash plaintiffs' appeal, and proceeded to determine the merits of the tolling issue.

Addressing the issue whether unnamed plaintiffs in a class action enjoy "tolling" of the statute of limitations on a claim, so that they, as named plaintiffs, could timely file an entirely new class action on the same underlying merits, the panel ruled in the affirmative.

The panel held the statute of limitations for Resh's own class action as named plaintiff tolled for the time Resh spent as an unnamed plaintiff in two prior would-be class actions. The panel noted that "permitting future class action named plaintiffs, who were unnamed class members in previously uncertified classes, to avail themselves of American Pipe tolling would advance the policy objectives that led the Supreme Court to permit tolling in the first place." Defendants would not be unfairly surprised because the pendency of the prior class action put them on notice '"not only [of] the substantive claims being brought against them, but also [of] the number and generic identities of the potential plaintiffs who may participate in the judgment." American Pipe, 414 U.S. at 554 - 55. The panel also observed that permitting previously unnamed class members to bring future class actions as named plaintiffs "also promotes economy of litigation by reducing incentives for filing duplicative, protective class actions because '[a] putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations.'"

Addressing potential for abuse, the panel assured defendants that class actions would not be allowed to perpetually "re-litigate" from their pool of unnamed class members. Thanks to legal principles such as preclusion, and the unlikelihood that re-litigation would be economically viable for lawyers or clients, the panel concluded that "the current legal system is adequate to respond to such a concern."

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/da...17/05/24/15-55432.pdf

Panel: Stephen Reinhardt, William A. Fletcher, and Richard A. Paez, Circuit Judges.
Argument Date: December 5, 2016

Date of Issued Opinion: May 24, 2017

Docket Number: 15-55432

Decided: Reversed and Remanded

Case Alert Author: Devin Bruen

Counsel:
Matthew M. Guiney (argued), Wolf Haldenstein Adler - Freeman & Herz LLP, New York, New York; Betsy C. Manifold, Francis M. Gregorek, Rachele R. Rickert, Marisa C. Livesay, and Wolf Haldenstein Adler - Freeman & Herz LLP, San Diego, California; David A.P. Brower - Brower Piven, New York, New York; for Plaintiffs-Appellants.
Seth Aronson (argued), Brittany Rogers, and Michelle C. Leu - O'Melveny & Myers LLP, Los Angeles, California; Abby F. Rudzin - O'Melveny & Myers LLP, New York, New York; for Defendants-Appellees.

Author of Opinion: Judge William A. Fletcher.

Circuit: Ninth

Case Alert Supervisor: Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 08/24/2017 07:03 PM     9th Circuit     Comments (0)  

  Marco Antonio Corona-Contreras v. Steven F. Gruel
Headline:
The Ninth Circuit panel held that the district court exceeded its authority under 28 U.S.C. § 1447(c) in ordering sua sponte a remand based on a procedural defect in the removal from state court of an action alleging breach of contract and legal malpractice.

Areas of Law:
Civil Procedure

Issues Presented:
Whether the district court has jurisdiction to remand a case sua sponte to state court when there is a procedural defect but no timely motion for remand.

Brief Summary:
Contreras sued his former lawyer, Gruel, for breach of contract and legal malpratice based on Gruel's unsuccessful representation of Contreras in his immigration cases. Gruel did not file his notice of removal to federal court until well past the required 30-day period. Although Contreras had not moved to remand, the district court, on its own, remanded the case to state court. Upon de novo review by the appellate court, the panel ruled that the 30-day requirement for filing a notice of removal is procedural, not jurisdictional, and may be waived by the plaintiff's failure to move to remand. Because Contreras did not move to remand, he waived the procedural defect and the district court lacked the authority to remand the case sua sponte to state court.

Significance:
Failure to file a notice of removal within the 30-day period required by 28 U.S.C. 1446(b) is merely a procedural, and not jurisdictional, defect which is waived by the plaintiff's failure to file a motion to remand. In the absence of a motion to remand, the district court lacks the authority to remand sua sponte the case to state court.

Extended Summary:
Gruel represented Contreras in unsuccessful appeals to the Board of Immigration Appeals and, subsequently to the Ninth Circuit. Contreras then retained new counsel and sued Gruel for breach of contract and legal malpractice. While the complaint stated Contreras's residence is in San Lorenzo, California, it did not state his immigration status or citizenship. Almost a year after the complaint was filed, Gruel filed a notice of removal to federal court based on diversity jurisdiction upon discovering Contreras was not a U.S. citizen and that damages exceeded $75,000. Contreras did not file a motion to remand and otherwise made no objection to removal. However, at the case management conference, the judge remanded the case to state court because removal did not occur until almost one year after the filing of the complaint, well past the required 30-day period.

The panel first addressed whether it had jurisdiction to hear the appeal. In order to determine its appellate jurisdiction, the panel held that it had to rule on the merits of the appeal since its appellate jurisdiction turned on whether the district court did or did not have the authority to remand the case. Reviewing de novo the district court's decision to remand sua sponte the case based on Gruel's failure to file the notice of removal by the 30-day deadline, the panel ruled that the time limits for removal under 28 U.S.C. section 1446(b) are procedural rather than jurisdictional and, therefore, may be waived. Although jurisdictional defects are not waivable, the panel found that the district court had original jurisdiction to hear this case between a citizen of a State and a citizen of a foreign state where the matter in controversy allegedly exceeded $75,000. Accordingly, the panel held: "Because the district court remanded for a procedural defect, and because procedural defects are waivable, the district court lacked authority to remand in the absence of a timely motion by Contreras. "

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/05/26/15-16783.pdf

Panel:
Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Ann D. Montgomery, * District Judge

Argument Date:
April 17, 2017

Date of Issued Opinion:
May 26, 2017

Docket Number:
15-16783

Decided:
Vacated and remanded.

Case Alert Author:
Krysta Maigue

Counsel:
Jason T. Campbell (argued), San Francisco, California; Paul H. Nathan, San Francisco, California for Defendant-Appellant.
Barry K. Tagawa (argued), San Francisco, California, for Plaintiff-Appellee

Author of Opinion:
Judge Ann. D. Montgomery

Case Alert Supervisor: Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 08/24/2017 06:57 PM     9th Circuit     Comments (0)  

  Roger Vanderklok v. USA - Third Circuit
Headline: No implied cause of action for damages under the First Amendment against a TSA employee for retaliatory prosecution because the role of the TSA in securing public safety far outweighs the benefit of judicially implied damages liability.

Area of Law: First Amendment

Issues Presented: Whether a First Amendment claim for damages against a TSA employee for retaliatory prosecution exists in the context of airport security screenings.

Brief Summary:
The court ruled that there is no First Amendment damages remedy available against airport security screeners who allegedly retaliate against a traveler. The courts have never implied a remedy in a case involving military or national security because Congress is better positioned to evaluate the impact of a new species of litigation against those who act on the public's behalf in the national security context. The expansion of judicially implied causes of action to new contexts is strictly limited. Here, even if no alternative process was available, the role of the TSA in securing public safety was so significant that it precluded the Third Circuit from implying a cause for the plaintiff.

Extended Summary:
Roger Vanderklok packed a heart-monitor and his watch into a PVC pipe, capped it, then placed it inside his carry-on bag and went to the Philadelphia International Airport to board a flight for Miami. Shortly after his bag was x-rayed, Vanderklok had a disagreement with a TSA screener that resulted in his arrest for disorderly conduct, threatening placement of a bomb, and making terroristic threats - thwarting his plans of running a half marathon in Miami.

Shortly after being acquitted of all charges, Vanderklok filed suit for unconstitutional infringement of his First Amendment rights - one of nine claims - against the United States of America, the TSA, the TSA screener, the City of Philadelphia, Philadelphia Police officers and detectives, and an agent of the Department of Homeland Security. The district court dismissed all claims against each defending party, except the TSA screener - Charles Kieser. The district court rejected the argument that he was entitled to qualified immunity against the First Amendment retaliatory prosecution claim, and denied his motion for summary judgment. Keiser then filed the interlocutory appeal.

For the qualified immunity dispute, the court framed a dipositive threshold issue: whether there is a First Amendment right to be free from retaliatory prosecution by a TSA employee. The judiciary created a private cause of action against federal officers for deprivation of constitutional rights - a Bivens claim - but it is exceedingly rare and narrowly applied. The Supreme Court has never implied such an action under the First Amendment, and the Third Circuit has never invoked Bivens on claims of freedom from government retaliation against speech in a dispute with airport security screeners.

According to the Supreme Court, the allowance of this claim is very fact specific and should not be extended beyond the specific clauses of the specific amendments for which a cause of action has already been implied. Airport security and TSA screeners are a new context and category of defendant for a Bivens claim, which strongly weighed against recognizing Vanderklok's claim. However, this factor was not dipositive of the court's inquiry.

Special factors counseling hesitation before authorizing a new kind of litigation were ultimately determinative of the court's refusal to recognize the existence of the Vanderklok's claim. First, under the democratic process, Congress should decide whether to provide for a damages remedy - not the courts. The TSA was created in response to the September 11th attacks for the purpose of securing airports, so Vanderklok's claim implicated the government's response to 9/11. National security is the prerogative of Congress and the President, and judicially imposed damages liability may cause an official to second-guess difficult but necessary decisions concerning national-security policy, or increase the probability that a TSA agent would hesitate in making split-second decisions.

Second, the court surmised that Congress's failure to create damages liability in this context likely was not inadvertent. When it created the TSA, Congress restricted the scope of tort liability for the government and its employees, and created an administrative mechanism to adjudicate TSA complaints - TRIP. The Third Circuit believed it should hesitate to create new remedies when the ones available are already limited by congressional design.

Third, the court found Vanderklok's retaliatory prosecution claim poorly suited to address wrongs by line TSA employees because they are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers. If TSA employees encounter situations requiring action beyond their limited responsibilities, they are instructed to contact local law enforcement. The district court ruled Keiser was not an enforcement officer of the TSA and there was no challenge to whether he acted within the scope of his employment. Since a retaliatory prosecution claim hinges on whether the allegedly offending government employee had probable cause to take some enforcement action, there were practical concerns counseling hesitation from the court.

According to the opinion, when it comes to creating judicial remedies, there must be a balancing of priorities - and the proper balance is one for Congress, not the judiciary, to undertake. In the specific context of airport security screeners, special factors precluded the court from implying a Bivens cause of action for First Amendment retaliation.

Find the full opinion at: http://www2.ca3.uscourts.gov/opinarch/163422p.pdf

Panel: Judges Smith, Jordan, and Roth

Argument Date: March 23, 2017

Date of Issued Opinion: August 22, 2017

Docket Number: No. 16-3422

Decided: Reversed and remanded

Case Alert Author: Kevin P. McGilloway

Counsel: John C. Connell, Jordan L. Fischer, Jeffrey M. Scott, counsel for Appellants
Nicholas A. Cummins, Charity C. Hyde, counsel for Defendants City of Philadelphia, Kenneth Flaville, Raymond Pinkney, and Michael Wojciechowski
Colin M. Cherico, Anne B. Taylor, counsel for Defendants United States of America, Transportation Security Administration, John S. Pistole, and Jen Johnson
Robyn L. Goldenberg, Thomas B. Malone, counsel for Appellee
Benjamin C. Mizer, Paul J. Fishman, Daniel J. Aguilar, Sharon Swingle, Mary Hampton Mason, Andrea Jae Friedman, counsel for Amicus Appellant

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/24/2017 03:44 PM     3rd Circuit     Comments (0)  

August 19, 2017
  Real Alternatives Inc v. Secretary, Department of Health and Human Services--Third Circuit
Headline: The RFRA only provides relief from substantial government burdens on religious exercise, and passive eligibility for reimbursement of optional contraceptive services is not a substantial burden.

Area of Law: Constitutional

Issues Presented: (1) Whether the Contraceptive Mandate must exempt a secular anti-abortion group with no religious affiliation, and (2) whether an employee's religious beliefs are substantially burdened by the law's requirement that his or her employer's insurance plan cover contraceptives.

Brief Summary:
A single-isssue non-profit company is not similarly situated with a religion because they are different in structure, aim, purpose, and function. Such organizations do not qualify for religious exemptions, which are reserved for houses of worship based on the longstanding government principle of noninterference.

The substantial burden test, not strict scrutiny, is applied to RFRA claims brought by an individual. Such claimants must show that a penalty or benefit be more than incidental in order to amount to a substantial injury, and here the burden is not direct. Employee actions under the ACA are mediated by an insurance company, and any link between the decision to sign up for insurance on the one hand and the provision of contraceptives to a particular individual on the other is far too attenuated to rank as substantial. The fact that the Government may require insurers to offer coverage for certain services that some might find objectionable on religious grounds cannot form the basis of requiring the Government to adjust its programs on behalf of all employees.

Extended Summary:
The Contraceptive Mandate is a specific part of a larger provision in the Affordable Care Act that requires employer-provided health insurance plans to cover an array of preventative services at no cost to participating employees. The service covered by the mandate is FDA-approved contraceptives, and it includes a limited exemption for houses of worship and their integrated auxiliaries.

Appellant, Real Alternatives, is a non-profit, non-religious, anti-abortion organization. While the company does not hold itself out as a religious entity, it considers contraceptives morally wrong and categorically opposes their use; it only hires employees who share the company's stance on contraceptives and abortion.

Appellant alleged that the mandate violates Equal Protection Clause of the 5th Amendment by exempting religious employers but not secular entities that oppose the mandate. The organization contended that it is identically situated to houses of worship because all of its employees by definition oppose contraceptive coverage. This position posits that if churches receive a religious exemption, then so too must non-religious entities receive religious exemptions.

The Third Circuit rejected this argument because Appellant is not similarly situated to a religious employer, but rather mirrors a single-issue interest group instead of a comprehensive belief system. Real Alternatives is an employer with a single mission statement and it cannot guide believers comprehensively through life in a way similar to religion. Based on the company's limited structure and singular purpose, the court found Appellant to be a completely different type of entity than a religion.

After deciding that Appellant was not similarly situated to a religion, the court warned against the far-reaching consequences of permitting such an organization to qualify for the exemption. Framing the exemption so broadly as to encompass any employer who disagrees with any aspect of an underlying law lies in direct contradiction of the judiciary's refusal to broaden religious exemptions in similar contexts. Further, it would conflict with the body of legislative protections for religious freedom that intentionally exclude mere moral philosophy. Finally, it would ignore the historic governmental recognition of a particular sphere of autonomy for houses of worship.

The Court stated that finding all single-issue non-profit organizations to be similarly situated with houses of worship based on their adherence to a shared position on one issue would expand religious exemptions - a legitimate purpose of the highest order - beyond what is constitutionally required. If the mandate was a violation of Real Alternatives' equal protection rights, any law implicating religion would be rendered moot because the exemption would be too easy to invoke. Drawing upon all the foregoing reasons, the Third Circuit ruled Appellant's Equal Protection claim failed as a matter of law.

The employees of Real Alternatives brought a claim under the Religious Freedom and Restoration Act because their religious beliefs prohibit them from using, supporting, or otherwise advocating the use of abortifacients, and from participating in a health insurance plan that covers them. The insurance plan at issue makes employees eligible to be reimbursed for various optional services. The mandate increases the number of choices an employee has when he or she purchases the plan, but it is still up to the employee to decide what to do with those options.

The Court's review of the RFRA claim presented a question of first impression and served as the basis of its precedential holding. The Court framed the issue to be: whether employees who oppose contraceptives on religious grounds but work for secular employers experience a substantial burden on their religious exercise when the Government regulates group health care plans and providers by requiring them to offer coverage for services the employees find incompatible with their religious beliefs.

As a threshold matter to this issue, the Court held that the RFRA only provides relief from substantial government burdens on religious exercise, and that such substantiality may be determined as a matter of law. A substantial burden on the exercise of religion exists only where the Government demands that an individual engage in conduct that seriously violates his or her religious beliefs. The Court very specifically articulated the contours of this rule; it did not want to improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burden religious exercise. The Court's review only evaluated the burden itself, not the reasonableness of the religious belief.

Examining the act performed and not the effect of that act, the Court decided as a matter of law that the burden placed on Real Alternatives employees was not substantial. The act complained of was filling out a form that triggers eligibility for reimbursement of services the employee chooses to use. This action was not changed by the mandate nor does it amount to a substantial burden under the RFRA. The possibility that others might avail themselves of objectionable services is no more burdensome than filling out the form. The Court reasoned that checking off a box to gain eligibility for reimbursement does not indicate support or advocacy for any particular service when the actual selection and use is left entirely to the discretion of the employee.

The Court held that there is a material difference between employers arranging or providing an insurance plan that includes contraception coverage and becoming eligible to apply for reimbursement for a service of one's choosing. Passive eligibility for reimbursement of optional services requires no real participation, and that payment for the ability to have coverage does not give an employee an active role in the underlying plan. Thus, the connection between the conduct and the religious belief was too attenuated to create a substantial burden.

The Third Circuit also found the Appellants' position unworkable. The employee's actions under the ACA are mediated by the insurance company and individuals cannot use the RFRA to compel the Government to structure its relations with a third party in a certain way. Medical treatments that some may view as objectionable are as varied as they are numerous, and finding that coverage for one set of objectionable services constitutes a substantial burden would imply that coverage for all such services impose a substantial burden - rendering the health care system totally unworkable.

For Real Alternatives' APA claims, it alleged that the mandate infringes on Constitutional and federal laws - namely, the Affordable Care Act ("ACA"), the Weldon Amendment, and the Church Amendment. Appellant argued that the mandate violates the ACA by requiring coverage of abortion services, but the court found this argument unsubstantiated and largely based on semantics; it found the Weldon Amendment claim failed for the same reasons. The Church Amendment prohibits an individual from being required by the government to assist in any part of a health service program if his assistance would be contrary to his religious beliefs. This count failed for lack of standing, because the employees at issue purchase their health insurance from a company in the health insurance market, not from the Department of Health and Human Services.

Judge Jordan filed a lengthy dissent on the RFRA claim.


Find the full opinion at: http://www2.ca3.uscourts.gov/opinarch/161275p.pdf

Panel: Judges Jordan, Greenaway, Jr., and Rendell

Argument Date: November 3, 2016

Date of Issued Opinion: August 4, 2017

Docket Number: No. 16-1275

Decided: Affirmed

Case Alert Author: Kevin P. McGilloway

Counsel: Matthew S. Bowman, David A. Cortman, Kevin H. Theriot, Elissa M. Graves, Randy Wenger, counsel for Appellants; Benjamin C. Mizer Peter J. Smith Mark B. Stern Alisa B. Klein Patrick G. Nemeroff Megan Barbero Joshua M. Salzman (Argued), counsel for Appellees; Richard B. Katskee, Natacha Y. Lam, Seth M. Marnin David L. Barkey, counsel for Amici Curiae Americans United for Separation of Church and State; Anti-Defamation League; Central Conference of American Rabbis; Hadassah, The Women's Zionist Organization of America, Inc.; National Council of Jewish Women; People for the American Way Foundation; Union for Reform Judaism; Women of Reform Judaism.

Author of the Opinion: Judge Rendell

Circuit: Third

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/19/2017 01:51 PM     3rd Circuit     Comments (0)  

August 18, 2017
  Alissa Moon v. Breathless, Inc.-Third Circuit
Headline: Independent contractor's statutory claim for wages trumps arbitration clause because the clause did not clearly and unambiguously signal that she was surrendering her right to pursue statutory claims in court.

Area of Law: Employment, Fair Labor, Arbitration Clauses

Issues Presented: Does the scope of the arbitration clause in a signed employment contract include plaintiff's statutory claims where it does not specify that statutory claims are included?

Brief Summary:
For controversies over arbitration clauses, courts must determine the extent of the clause and then resolve only issues that fall outside of that scope. Here, the clause did not specifically state the types of claims covered and made no mention of any statutory claims, but did make limiting references to contractual disputes. Therefore, the agreement did not clearly and unambiguously signal to plaintiff that she was surrendering her right to pursue statutory claims in court. Because plaintiff relied solely on her statutory - rather than her contractual - rights to recovery, the court allowed her to proceed on her FLSA claims without first seeking arbitration.

Extended Summary:
Appellant, Alissa Moon, signed an Independent Dancer Rental Agreement to rent performance space from Appellee, Breathless Men's Club. The relevant employment provision stated that Moon was an independent contractor and not an employee. The relevant provisions of the arbitration clause stated that disputes arising under the agreement would be resolved by binding arbitration and that - in arbitration - neither party would have the right to litigate in court nor have a trial by jury.

Moon sued the Club for wages and benefits as an employee under the Fair Labor Standards Act, the New Jersey Wage Payment Law, and the New Jersey Wage and Hour Law. The district court granted summary judgment to the Club, holding that Moon's claims fell within the scope of the agreement's arbitration provision.

On appeal, the Third Circuit conducted two inquiries into the scope of the clause: whether the arbitrability of the issue itself was subject to arbitration, and whether the specific claims at issue were within the scope of the clause. Federal courts apply state contract law for matters of contract interpretation, so the Court applied New Jersey contract law to determine the scope of the clause in controversy. The Third Circuit ruled the arbitrability of the issue and Moon's statutory claims both fell outside the scope of the clause.

To answer the first question, the Court found the language insufficient to include arbitrability. Under New Jersey law, there is a presumption that courts must decide whether an issue is arbitratable unless there is clear and unmistakable evidence that the parties agreed otherwise. In the contract at issue, the court found no mention of arbitrability nor the venue for deciding it. Furthermore, the Club conceded to the lower court that courts decide issues of arbitrability. Therefore, the Club did not overcome its presumptive burden and the Court held that it had the power to review the scope of the clause.

To resolve the second question, the Court found the contract's terminology made the arbitration clause applicable only to contract claims, not statutory claims. To encompass statutory rights, an arbitration clause must identify the substantive area it covers, reference the type of claims waived, and explain the difference between arbitration and litigation. The clause at issue only referenced disputes arising under the agreement - not statutory rights. Further, it did not specifically reference claims related to employment or status as an independent contractor. As such, the explanation of arbitration was immaterial because the clause did not appropriately make clear that it applied to statutory claims.

The Club argued that Moon's claim as an employee arose under the agreement because it referred to her as an independent contractor. The court held that, despite the employment provision, Moon's claim for lawful wages and benefits still arose under the FLSA and state statutes, not the agreement itself. Further, the independent contractor label does not preclude a worker from the protection of the Act if the work done follows the usual path of an employee, nor does it change the applicable standards for arbitration clauses.

Find the full opinion at: http://www2.ca3.uscourts.gov/opinarch/163356p.pdf

Panel: Judges Fisher, Hardiman, Greenaway, Jr.

Argument Date: January 18, 2017

Date of Issued Opinion: August 17, 2017

Docket Number: 16-3356

Decided: reversed and remanded

Case Alert Author: Kevin P. McGilloway

Counsel: Jeremy E. Abay, John K. Weston, counsel for Appellant
Marc J. Gross, Justin P. Kobenschlag, counsel for Appellee

Author of Opinion: Judge Greenaway

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/18/2017 01:30 PM     3rd Circuit     Comments (0)  

  Daryle McNelis v. Pennsylvania Power & Light Co. - Third Circuit
Headline: NRC regulations create essential functions required of a qualified individual under the ADA

Area of Law: Employment; Americans with Disabilities Act

Issue(s) Presented: Do NRC regulations create essential functions under the ADA? Should a court question a physician's fitness determination for an employee?

Brief Summary:

As an armed nuclear security officer for Pennsylvania Power & Light Company (PPL), Daryle McNelis had unrestricted access and was authorized to carry a weapon. Federal regulations for nuclear facilities require them to evaluate security officers' fitness for duty, including a high assurance that officers are trustworthy and do not pose any risk to public safety. In 2012, McNelis started to experience mental health problems, as well as alcohol problems. His erratic behavior was reported to a supervisor, who placed McNelis' unrestricted access on hold. A third party psychiatrist evaluated McNelis and concluded that he was not fit for duty. As a result, McNelis was terminated from his position. McNelis brought a suit against PPL claiming that his termination violated the ADA. The Third Circuit affirmed summary judgment for PPL, concluding that McNelis was not a qualified individual under the ADA because he was unable to perform the essential functions created by the regulations.

Extended Summary:

In 2009, Daryle McNelis began working for the Philadelphia Power & Light Company (PPL) as an armed security officer. In this position, McNelis had unrestricted access to the PPL plant. By 2012, McNelis started to exhibit mental health problems, such as paranoia, as well as a drinking problem. As part of the Nuclear Regulatory Commission's regulations, one of McNelis' co-workers reported concerns about McNelis' behavior. As a result, PPL temporarily withdrew McNelis' unrestricted access. McNelis was evaluated by a psychologist, who determined that McNelis was not fit for duty. As a result, PPL terminated McNelis' employment. McNelis filed a suit, claiming that his termination violated the Americans with Disabilities Act. The District Court found that his termination was based on the fact that he lacked a mandated job requirement under the NRC.

The Third Circuit affirmed the District Court's grant of summary judgment, finding that McNelis would not be considered a qualified individual under the ADA. In order for someone to satisfy the qualified individual prong, he/she must satisfy the prerequisites for the position and must be able to perform the essential functions of the position. The Court determined that McNelis was unable to perform the essential functions of his position because he did not have unrestricted security access and he was deemed unfit for duty. Both of these things are required in order to work as an armed security guard in a nuclear power plant. The Court determined that the NRC regulations created essential functions of the job under the ADA.

The Court further noted that the NRC has created an employee screening system for certain traits or behaviors that may endanger the public. In doing so, the NRC cannot exempt individuals with disabilities from this screening process, as their priority is to ensure the protection of the public. The ADA applies differently to positions that implicate the public welfare.

In response to one of McNelis' contentions, the Third Circuit concluded that McNelis was given the full opportunity to dispute the evaluation done by Dr. Thompson. The NRC regulations provide for certain review procedures, which allowed McNelis the opportunity to dispute the perceptions of Dr. Thompson and PPL. McNelis was not entitled to more review than the NRC regulations provided, as PPL appropriately followed the procedures that are outlined in the NRC regulations. In addition, the Court determined that even though PPL generally allows employees a chance to comply with treatment recommendations, they are not obligated to do so as a matter of law.

The Third Circuit disagreed with McNelis' assertion that PPL was not entitled to rely on Dr. Thompson's evaluation. Referencing the Supreme Court, the Third Circuit noted that a court should not doubt a physician's evaluation that an employee failed to meet the appropriate regulatory standards for his/her position. In addition, the NRC regulations prohibit PPL from second-guessing the fitness determination after it was made.

The Third Circuit affirmed the judgment of the District Court.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163883p.pdf

Panel: Hardiman, Roth, and Fisher, Circuit Judges

Argument Date: May 26, 2017

Date of Issued Opinion: August 15, 2017

Docket Number: No. 16-3883

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: Ralph Lamar and Marc Weinstein, Counsel for Appellant; Darren Creasy, Counsel for Appellee

Author of Opinion: Circuit Judge Hardiman

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/18/2017 01:04 PM     3rd Circuit     Comments (0)  

August 10, 2017
  USA v. Joseph Ferriero - Third Circuit
Headline: Integrity-undermining intent is not required under the New Jersey bribery statute; New Jersey bribery statute is constitutional

Area of Law: RICO; Wire Fraud

Issue(s) Presented: Does the New Jersey bribery statute require integrity-undermining intent? Is the New Jersey bribery statute unconstitutionally vague? Does the Supreme Court decision in McDonnell impact the outcome of this case?

Brief Summary:

Joseph Ferriero was the chairman of the Bergen County Democratic Organization. He was involved in nominating Democrats in local elections and helped raise money for the Democratic Party. He also helped to connect vendors with elected Democrats. Ferriero made a deal with John Carrino, a vendor, to recommend his firm, C3, to local officials. In return, Ferriero would receive commissions on the contracts that hired the firm. Ultimately, Ferriero was convicted for violations of the Travel Act, RICO, and the federal wire fraud statute. The Third Circuit affirmed these convictions, finding the Travel Act and RICO did not require proof of integrity-undermining intent for an individual to be convicted. The Court further ruled that party officials were intended to be included under the Travel Act and Rico, that the New Jersey bribery statute was constitutional, and that the definition of "official act" determined in McDonnell v. United States did not impact the outcome of this case.

Extended Summary:

Joseph Ferriero was the chairman of the Bergen County Democratic Organization. As party chair, Ferriero was responsible for raising money for the Democratic Party, helping elect candidates, and connecting vendors with elected Democrats. Ferriero entered into a contract with John Carrino, who owned C3, a corporation that provided notification systems for local governments. Ferriero and Carrino agreed that Ferriero would recommend C3 to local officials and in return, Ferriero would receive commissions when Carrino's firm was hired. None of the local officials were aware of the agreement between Ferriero and Carrino. At least four towns hired C3 and Ferriero received at least $11,875 in commissions. Cliffside Park was one of the towns that Ferriero approached about hiring Carrino's firm. However, the mayor was concerned about Ferriero's role and sent an email inquiring into the owners of the corporation. Carrino responded to the email with no mention of Ferriero and Cliffside Park ultimately retained Carrino's services. Ferriero was indicted for violations of RICO, the Travel Act, and wire fraud statutes. Ferriero moved for acquittal, which the court denied. He was sentenced to prison and ordered to forfeit any profits that he made.

The Third Circuit affirmed Ferriero's conviction under the Travel Act and RICO, finding that the government did not need to demonstrate that Ferriero had the intent to undermine the integrity of a public action. The Court noted that the current New Jersey bribery statute should be applied to public officials or voters and "prohibits bribing those persons to secure a particular decision, opinion, recommendation, or vote." Ferriero's argument that the previous statutory language of integrity-undermining intent should be read into the current statute is not supported by any previous court decisions.

The Third Circuit affirmed that the District Court appropriately instructed the jury regarding the nexus element of the RICO charge. In order for the nexus element to be satisfied, there must be a strong connection between the defendant, his/her involvement in the enterprise's affairs, and the pattern of racketeering. The District Court correctly interpreted this statute and instructed the jury that Ferriero's participation in the enterprise's affairs by means of, by consequence of, by reason of, by agency of, or by instrumentality of a pattern of racketeering activity is sufficient to satisfy the nexus element.

The Court affirmed that a rational juror could conclude that the bribery scheme was a means by which Ferriero participated in the conduct of business. A rational juror could have determined that the BCDO's affairs extended further than the official duties. The bribery scheme did not have to occur in the official capacity because Ferriero's participation in the conduct of the party's affairs was sufficient. The Court further noted that there was sufficient evidence to demonstrate that Ferriero participated in the conduct of BCDO's affairs by means of a pattern of bribery.

The Third Circuit concluded that there was sufficient evidence for a rational juror to determine that the representation made in Carrino's email was materially false and fraudulent. Ferriero argued that the failure to specify his involvement in the contract was an omission that should not be considered a false representation because he did not owe a duty to disclose. The Court noted that most cases that use that standard have involved a situation where the defendant did not make an actual representation and instead, remained silent. Carrino's email involves an actual representation that was made to Cliffside Park and therefore, a jury is capable of determining whether the representation was false or fraudulent. The Court determined that there was sufficient evidence for a rational juror to make this determination.

The Third Circuit disagreed with Ferriero's argument that Congress did not intend for party officials to be punishable for bribery under RICO or the Travel Act. The Court found that the definition of bribery found in the Travel Act and RICO should be read broadly to include all relationships that involve a special trust, which should be protected from the corrupt influence of bribery. Party officials fall into this category of occupying a position of special trust and fall within the individuals who are punishable under RICO and the Travel Act.

The Court also concluded that New Jersey's bribery statute is not unconstitutionally vague or overbroad. The statute offers specificity in describing the acceptance of a benefit that would be considered bribery. Further, the statute gives public officials and party officials a reasonable opportunity to understand what conduct is prohibited. In addition, the Court determined that there are no applications of the bribery law that can be deemed unconstitutional. This statute does not punish First Amendment activity because it only punishes corrupt agreements that are not protected under the First Amendment. The Court concluded that there was no sufficient basis to deem the bribery statute as unconstitutional.

Finally, the Third Circuit concluded that the Supreme Court decision in McDonnell v. United States did not have an effect on the outcome of this case. In McDonnell, the Supreme Court held that setting up a meeting or talking to another official were not sufficient to be considered "official acts" under the federal bribery statute. The Supreme Court rejected a broad interpretation of this statute that would encompass almost all activities of a public official. The Third Circuit determined that statute interpretation used in McDonnell should not be applied to the New Jersey bribery statute in this case because the New Jersey statute already uses a narrow and specific interpretation.

The Third Circuit affirmed the judgments of conviction against Ferriero.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/154064p.pdf

Panel: Hardiman and Scirica, Circuit Judges; Rosenthal, District Judge

Argument Date: November 1, 2016

Date of Issued Opinion: August 4, 2017

Docket Number: No. 15-4064

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: Peter Goldberger, Counsel for Appellant; Mark Coyne and Bruce Keller, Counsel for Appellee

Author of Opinion: Circuit Judge Scirica

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/10/2017 11:43 AM     3rd Circuit     Comments (0)  

August 7, 2017
  Charles Blackledge v. Olga Blackledge - Third Circuit
Headline: The Third Circuit held that shared parental intent of a settled purpose is sufficient to constitute a habitual residence; split custody should be considered as one factor in determining habitual residence

Area of Law: Custody; Hague Convention on Child Abduction

Issue(s) Presented: Is a retention date determined by the original date of consent? Is a "settled purpose" enough to demonstrate habitual residence? Does split custody give rise to alternating habitual residences?

Brief Summary:

Petitioner filed a petition under the Hague Convention, seeking the return of his son, J.B., to Germany. J.B. and Respondent had been residing in Pittsburgh for a year at the time the petition was filed. The District Court denied the petition, finding that retention was not wrongful under the Hague Convention. The Third Circuit ultimately affirmed, while clarifying some minor errors in the District Court's reasoning. The Court found that the District Court determined an incorrect retention date by focusing on the original consent given by the Petitioner. When Petitioner filed the petition under the Hague Convention, he sufficiently withdrew his consent. The Third Circuit further found error in the District Court's determination that there was no evidence of an agreement between Respondent and Petitioner. However, the Court concluded that even though there was an agreement, the shared parental intent factor still demonstrated that the United States was the appropriate habitual residence. After clarifying these errors, the Third Circuit affirmed, finding that denial of Petitioner's petition was appropriate.

Extended Summary:

Petitioner filed a petition alleging that his wife, the Respondent, was acting in violation of the Hague Convention on the Civil Aspects of International Child Abduction by retaining their son in the United States. Petitioner, Respondent, and their son, J.B., lived in various countries during his childhood. In Spring 2011, Petitioner moved to Germany to work as a patent agent. During this same time, Respondent and J.B. moved to Pittsburgh, where they lived for two years. In August 2013, Respondent and J.B. returned to Germany, where J.B. attended school and Respondent was working on a Ph.D. program. In August 2015, Petitioner and Respondent were having difficulties in their marriage and Respondent and J.B. returned to Pittsburgh, with Petitioner's agreement, to finish her Ph.D. While in Pittsburgh, J.B. attended second grade, where he succeeded academically and he was very involved in extracurricular activities as well. In February 2016, Petitioner and Respondent corresponded through email about the living status of J.B. These emails discussed an agreement that J.B. was to return to Germany for the following school year. However, Respondent insisted that their son should not be changing schools each year. During this ongoing dispute, Respondent filed for divorce and received an interim custody order. With no resolution as to whether J.B. would return to Germany, Petitioner filed a petition under the Hague Convention, seeking J.B.'s return.

The District Court held a bench trial and used the email correspondence, testimony from Petitioner and Respondent, as well as testimony from J.B.'s school, to determine the appropriate retention date to be August 2016. Based on this, the District Court found that J.B.'s habitual residence was in Pittsburgh and therefore, retention was not wrongful under the Hague Convention. The District Court denied the petition.

The Third Circuit determined that the August retention date adopted by the District Court was inappropriate. The Court found that the District Court erred by focusing on the Petitioner's original consent and not focusing on the subsequent communications between Petitioner and Respondent. The Third Circuit concluded that the appropriate retention date was July 6, when Petitioner filed his Hague Convention petition and fully withdrew his prior consent.

The Third Circuit held that the District Court erred in determining that there was no credible evidence that the parties had an agreement that J.B. remain in Pittsburgh for a specific duration. The Court found that there was specific evidence on record that showcased an agreement of this nature. Habitual residence is determined by the parents' shared intent as to a settled purpose for the child's move to Pittsburgh and the child's acclimatization to the claimed residence. The Third Circuit concluded that both factors still favored the United States as J.B.'s habitual residence. Petitioner and Respondent intended J.B.'s stay in Pittsburgh to have a settled purpose. He resumed a normal and routine life in Pittsburgh. The Court determined that parties' agreement for J.B. to return to Germany did not diminish the parties' intention for J.B. to live a settled life in Pittsburgh. J.B. was also acclimatized to his life in Pittsburgh. For these reasons, the Third Circuit found that the District Court was ultimately correct in deciding that the United States was J.B.'s habitual residence at the time.

The Third Circuit further addressed the idea of "shuttle custody," where a child splits time between his parents' countries of residence. The Court determined that an agreement to alternate custody in different countries does not necessarily equate to alternating habitual residences. Instead, the Court held that this type of agreement should be considered as a factor in determining whether the parents intended the child's move to have a degree of settled purpose. The Court found that the totality of the circumstances, including the retention date, degree of settled purpose, and shared parental intent, supported the finding that J.B.'s habitual residence was the United States.

Petitioner argued that, due to the District Court's error on the retention date, certain evidence regarding J.B.'s acclimatization should be inadmissible. In response, the Third Circuit determined that this error was harmless and the record regarding acclimation was sufficient based on the correct retention date. The District Court's determination that J.B. had acclimated to the United States was still appropriate.

The Third Circuit affirmed the District Court's decision to deny the petition.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163667p.pdf

Panel: Ambro, Krause, and Nygaard, Circuit Judges

Argument Date: May 19, 2017

Date of Issued Opinion: August 3, 2017

Docket Number: No. 16-3667

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: James Martin and Michael Yingling, Counsel for Appellant; Barbara Ernsberger, Counsel for Appellee.

Author of Opinion: Circuit Judge Krause

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/07/2017 09:43 AM     3rd Circuit     Comments (0)  

August 3, 2017
  Vance Haskell v. Superintendent Greene SCI-Third Circuit
Headline: The actual prejudice standard of Brecht does not apply to claims on habeas, where the state has knowingly presented or knowingly failed to correct perjured testimony. A reasonable likelihood that the perjured testimony affected the judgment of the jury is all that is required.

Area of Law: Criminal Procedure

Issues Presented: Is the defendant entitled to relief once he has shown a reasonable likelihood the false testimony could have affected the judgment of the jury, or must he also show the perjured testimony caused him actual prejudice?

Brief Summary:
Pennsylvania knowingly used perjured eyewitness testimony to convict a man of murder. The defendant filed a habeas petition in federal court for due process violations. The Third Circuit found a reasonable likelihood that the false testimony could have affected the judgment of the jury, and granted him relief. The court further held that it is unnecessary for a defendant to show that such an error had a substantial and injurious effect on the verdict because, when the state has corrupted the truth-seeking function of the trial by knowingly presenting or failing to correct perjured testimony, the threat to a defendant's constitutional rights is at its apex and the state's interest are their lowest.

Extended Summary:
Haskell was convicted of first-degree murder and several other crimes in connection with the 1994 shooting death of a man in Erie, Pennsylvania. To secure his conviction, the state's prosecutor relied heavily on testimony from four eyewitnesses. Of the four witnesses, only one - Antoinette Blue - gave consistent testimony, the other three either recanted their account or had previously denied being able to identify the shooter.

At trial, Blue claimed she expected nothing in return from the Commonwealth in exchange for her testimony, but both she and the prosecutor knew the state's help with Blue's own pending criminal matter was the quid pro quo for her testimony. The prosecutor failed to correct her statement, and even used her "untainted" participation for leverage in his closing argument.

Haskell filed a habeas petition challenging his conviction as tainted by perjured testimony in violation of his 14th amendment due process rights, to which the district court denied relief. It held that Blue's testimony was indeed false and that the prosecutor knew or should have known the same, but that Haskell failed to show that the perjured testimony had a substantial and injurious effect or influence on the jury's verdict - the Brecht standard.

For federal cases on direct review of perjured testimony in a state prosecution, the materiality test applies a reasonable likelihood standard. Under this standard, Haskell must establish that: (1) Blue committed perjury, (2) the Commonwealth knew or should have known that the testimony was false, (3) the false testimony was not corrected, and (4) there is a reasonable likelihood that the perjured testimony could have affected the judgment of the jury. Uncontested facts established the first three elements, and the Third Circuit reasoned that Blue's central role in the state's case coupled with knowledge of the benefit she received posed a reasonable likelihood of affecting the jury's judgment.

This standard puts the burden on the prosecution to show, beyond a reasonable doubt, that the perjured testimony was a harmless error. Thus, the materiality and harmless error - Brecht - standards merge; whenever the applicable materiality test is derived from the reasonable likelihood standard, the test for materiality supplies the test for harmlessness.

But the issue on appeal, as framed by the Third Circuit, is whether the Brecht standard also applies to such a case under collateral review - here, a habeas petition. According to the Brecht standard, when constitutional trial errors are raised in habeas proceedings - as opposed to on direct review - the defendant must prove actual prejudice. This standard puts the burden on the defendant to show that the perjured testimony had a substantial and injurious effect or influence on the jury's verdict. The majority of circuit courts have ruled that Brecht does indeed apply.

The Third Circuit ruled against the majority, stating that Brecht does not apply when the state has knowingly presented or failed to correct perjured testimony. The court began its reasoning by citing exceptions to Brecht, such as when a state violates the Brady rule by suppressing evidence, and then pointed out that the presentation of perjured testimony is one of three errors that implicate Brady. Directly addressing the argument of opposing circuits, the court said the materiality standard for false testimony should be lower because fabrication of the truth is an even greater error than suppression of the truth; it is the duty and responsibility of the state to elicit the truth and correct what is false.

The Third Circuit also found that the facts of this case did not reach the three main concerns of Supreme Court's Brecht rule, rather they fell closer to the Court's rule that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair. The Third Circuit reasoned that when the state knowingly presents perjured testimony, it deprives the defendant of his constitutional right to due process and obtains a conviction through deceit. Perjured testimony cases involve a corruption of the truth-seeking function of the trial process by the state itself, and concerns of finality do not trump those of justice. Further, there is little chance that excluding perjured testimony claims from Brecht analysis will degrade the prominence of the trial itself, because the trial is where the perjury occurs.

Find the full opinion at: http://www2.ca3.uscourts.gov/opinarch/153427p.pdf

Panel: Judges Ambro, Vanaskie, and Restrepo

Argument Date: March 27, 2017

Date of Issued Opinion: August 1, 2017

Docket Number: No. 15-3427

Decided: reversed and remanded

Case Alert Author: Kevin P. McGilloway

Counsel: Lisa B. Freeland, Elisa A. Long, counsel for Defendant
Mark W. Richmond, counsel for Prosecution

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/03/2017 12:51 PM     3rd Circuit     Comments (0)  

July 28, 2017
  United States v. White - Eighth Circuit
Headline Eighth Circuit overturns longstanding precedent and holds that government must prove knowledge of firearm characteristics requiring registration under the National Firearms Act in order to support a conviction for possession of an unregistered firearm

Area of Law Criminal Law

Issue(s) Presented Whether the district court properly instructed the jury regarding the government's burden of proof with respect to charge of possession of an unregistered firearm.

Brief Summary While executing a search warrant at the home of Robert White's parents, officers recovered a duffel bag containing an unregistered shotgun and a stolen handgun, among other things. White was charged with possession of a stolen firearm and possession of an unregistered firearm. At trial, no direct evidence was presented that White knew the shotgun to be stolen. In addition, the district court's jury instructions with respect to the unregistered handgun did not contain a mens rea requirement indicating the White knew the firearm to have certain characteristics requiring it to be registered. White objected to the jury instruction and offered alternative language, which the district court rejected. White was convicted of both counts.

On appeal, a panel of the Eighth Circuit affirmed the unregistered firearm conviction, but reversed the stolen firearm conviction due to insufficient evidence regarding White's knowledge that the firearm had been stolen. White requested, and was granted, rehearing en banc and the panel opinion was vacated.

The Eighth Circuit reinstated the panel opinion with respect to reversal of the stolen firearm conviction with no additional analysis. With respect to the unregistered firearm conviction, the Court noted that the Supreme Court has held that a district court must instruct the jury that knowledge of the characteristics bringing a firearm under the National Firearms Act (the Act) is a necessary element of the offence of possession of an unregistered firearm. A prior Eighth Circuit case, United States v. Barr, 32 F.3d 1320 (8th Cir. 1994), however, created a caveat. The caveat stated that when the characteristics of a weapon are 'quasi-suspect' the government need not show proof that the defendant actually knew of the specific characteristics bringing the weapon within the Act. Instead, the government need only prove that the defendant possessed the 'quasi-suspect' weapon and observed its characteristics. The Eighth Circuit en banc held that Barr in inconsistent with Supreme Court precedent and is overruled. It further held that in this case, the jury instructions did not properly instruct on the knowledge required to secure a conviction for possession of an unregistered firearm. As such, White's conviction on this count was also reversed.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/07/152027P.pdf

Panel En Banc

Date of Issued Opinion July 11, 2017

Decided Reversed

Docket Number 15-2027

Counsel Rebecca L Kurz for Appellant and Jeffrey Q. McCarther for Appellee

Author Circuit Judge Shepherd

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 07/28/2017 03:27 PM     8th Circuit     Comments (0)  

  Catamaran Corporation v. Towncrest Pharmacy - Eighth Circuit
Headline In matter of first impression, Eighth Circuit holds that courts must decide whether arbitration agreements authorize class arbitration absent clear language delegating the decision to an arbitrator

Area of Law Arbitration

Issue(s) Presented Whether the district court properly held that arbitration agreements' reference to AAA rules committed the question of whether class arbitration was allowed under the agreements to an arbitrator.
Brief Summary Catamaran Corporation is a pharmacy benefits manager and contracts with entities that sponsor, administer, or otherwise participate in prescription drug benefit plans. One of the services Catamaran provides is reimbursing pharmacies who provide prescription drugs to people covered by such a plan. The defendants are four pharmacies who have arrangements with Catamaran for such reimbursements under two different agreements. Each agreement contains an arbitration provision indicating that the rules of the American Arbitration Association (AAA) will apply to any dispute arising out of the agreements.

A dispute arose between Catamaran and the pharmacies. The pharmacies filed a demand for class arbitration with the AAA asserting claims on behalf of themselves and similarly situated independent pharmacies. The class contained over 85 pharmacies. In response, Catamaran filed a declaratory judgment action and argued that the agreements do not allow the pharmacies to proceed with class arbitration. Instead, Catamaran argued that each pharmacy must engage in bilateral arbitration. The district court held that because the agreements reference application of the AAA rules, they clearly and unmistakably commit the decision of whether the agreements contemplate class arbitration to an arbitrator, not the court.

On appeal, a panel of the Eighth Circuit reserved. The Court first addressed whether the issue of class arbitration is a substantive question of arbitrability typically reserved to courts. The panel noted that the Supreme Court has not definitively answered this question. It determined, however, that recent Supreme Court decisions noting the fundamental differences between bilateral and class arbitration and rulings by sister circuits indicate that the question of class arbitration is substantive, not merely procedural, and requires judicial determination unless the parties clearly and unmistakably delegate the question to an arbitrator. Here, the agreements were both silent as to class arbitration. The Court held that mere reference to AAA rules alone is not enough to clearly and unmistakably delegate the question to an arbitrator, and therefore the question falls to the courts. It instructed the district court to determine whether a contractual basis for class arbitration exists under the agreements on remand.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/07/163275P.pdf

Panel Chief Judge Smith and Circuit Judges Fenner and Shepherd

Date of Issued Opinion July 28, 2017

Decided Reversed

Docket Number 16-3275

Counsel Jason Michael Casini for Appellant and Bruce Henry Stoltze, Sr. for Appellees

Author Circuit Judge Shepherd

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 07/28/2017 02:22 PM     8th Circuit     Comments (0)  

July 26, 2017
  Steven Trzaska v. L'Oreal USA, Inc. - Third Circuit
Headline: An implicit threat by an employer that would result in the disregard of obligatory ethical standards of one's profession violates a clear mandate of public policy within the meaning of New Jersey's Conscientious Employee Protection Act

Area of Law: Employment Law

Issue(s) Presented: Can the rules of professional conduct governing attorneys serve as a basis to bring a CEPA claim alleging that employer fired employee who refused to violate such rules?

Brief Summary:

Steven Trzaska was working as a patent attorney for L'Oréal USA, Inc. The patent team had to meet a certain annual quota or face losing their jobs. After Trzaska approached his superiors with concerns that he was being expected to violate ethical standards in order to meet this quota, he was fired. Trzaska sued L'Oréal for wrongful retaliatory discharge. The Third Circuit reversed the dismissal of the claim, determining that the rules of professional conduct were mandates of public policy and that Trzaska had sufficiently pleaded facts showing that his employer implicitly directed him to disregard those ethical obligations, supporting a CEPA claim.



Extended Summary:

Steven Trzaska was the head of the patent team for L'Oréal USA. His team was in charge of determining a product's patentability and submitting patent applications to the United States Patent and Trademark Office (USPTO). As an attorney, Trzaska was required to follow the Rules of Professional Conduct established by the Supreme Court of Pennsylvania, as well as the rules provided by the USPTO. These ethical standards prevented attorneys from filing bad-faith patent applications. The patent team was given an annual quota of 40 patent applications. If they were unable to meet this quota, management said that their careers could be negatively impacted. Trzaska was concerned that he would be expected to file frivolous patents in order to meet the quota, so he brought these concerns to his superiors. After making it known that he would not violate the rules of professional conduct, Trzaska was offered two severance packages to leave the company. When he did not accept, L'Oréal fired him. In response, Trzaska filed a claim for wrongful retaliatory discharge in violation of the New Jersey Conscientious Employee Protection Act (CEPA) against L'Oréal USA and L'Oréal, S.A.

The Third Circuit reversed the District Court's decision to dismiss, finding that Trzaska had sufficient grounds to bring a CEPA claim. The CEPA protects employees from retaliatory actions when an employee refuses to participate in an activity or policy that he/she believes is in violation of a law or rule pursuant to law. The Court concluded that Trzaska's allegation that L'Oréal was instructing or threatening its patent attorneys to disregard the rules of professional conduct is a violation of the public policy mandate under CEPA. The Third Circuit determined that CEPA protection was triggered because a patent itself is relevant to public policy and violation of the rules of professional conduct can harm the public's interest. For these reasons, termination for failure to disregard the ethical obligations of one's profession creates an adequate CEPA claim.

The Third Circuit also reversed the District Court's holding that even if there was sufficient basis to bring a claim, Trzaska failed to adequately plead that claim. The Court concluded that Trzaska had met the standard of review, whether a complaint provides enough facts to raise a reasonable expectation that a cause of action can be determined through discovery. Trzaska's complaint alleged the company policies, as well as the threatened termination of employees. These allegations supported Trzaska's reasonable belief that he would be fired if he did not disregard his ethical obligations sufficient to proceed to discovery.

The Third Circuit denied L'Oréal, S.A.'s motion to dismiss the appeal due to the failure file a notice of appeal. The Court held that there was a connection between the appeal against L'Oréal USA and L'Oréal, S.A. and there was an inferred intent to appeal both orders The Third Circuit determined that there was clear intent that Trzaska wanted to appeal against both orders. In addition, L'Oréal, S.A. was still given the full opportunity to brief the issues.

Circuit Judge Chagares dissented in part, noting that he would have found that Trzaska did not sufficiently plead a CEPA claim because a heightened standard should be applied to Trzaska as an attorney and he failed to plead that L'Oréal demanded that he violate his professional obligations.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153810p.pdf

Panel: Ambro, Chagares, and Fuentes, Circuit Judges

Argument Date: November 16, 2017

Date of Issued Opinion: July 25, 2017

Docket Number: No. 15-3810

Decided: Reversed and Remanded

Case Alert Author: Kristina Flatley

Counsel: Daniel Bencivenga and Harold Goodman, Counsel for Appellant; George Barbatsuly, Laura Scully, Christopher Carton, and Eric Savage, Counsel for Appellees.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/26/2017 03:07 PM     3rd Circuit     Comments (0)  

  Steven Trzaska v. L'Oreal USA, Inc. - Third Circuit
Headline: An implicit threat by an employer that would result in the disregard of obligatory ethical standards of one's profession violates a clear mandate of public policy within the meaning of New Jersey's Conscientious Employee Protection Act

Area of Law: Employment Law

Issue(s) Presented: Can the rules of professional conduct governing attorneys serve as a basis to bring a CEPA claim alleging that employer fired employee who refused to violate such rules?

Brief Summary:

Steven Trzaska was working as a patent attorney for L'Oréal USA, Inc. The patent team had to meet a certain annual quota or face losing their jobs. After Trzaska approached his superiors with concerns that he was being expected to violate ethical standards in order to meet this quota, he was fired. Trzaska sued L'Oréal for wrongful retaliatory discharge. The Third Circuit reversed the dismissal of the claim, determining that the rules of professional conduct were mandates of public policy and that Trzaska had sufficiently pleaded facts showing that his employer implicitly directed him to disregard those ethical obligations, supporting a CEPA claim.



Extended Summary:

Steven Trzaska was the head of the patent team for L'Oréal USA. His team was in charge of determining a product's patentability and submitting patent applications to the United States Patent and Trademark Office (USPTO). As an attorney, Trzaska was required to follow the Rules of Professional Conduct established by the Supreme Court of Pennsylvania, as well as the rules provided by the USPTO. These ethical standards prevented attorneys from filing bad-faith patent applications. The patent team was given an annual quota of 40 patent applications. If they were unable to meet this quota, management said that their careers could be negatively impacted. Trzaska was concerned that he would be expected to file frivolous patents in order to meet the quota, so he brought these concerns to his superiors. After making it known that he would not violate the rules of professional conduct, Trzaska was offered two severance packages to leave the company. When he did not accept, L'Oréal fired him. In response, Trzaska filed a claim for wrongful retaliatory discharge in violation of the New Jersey Conscientious Employee Protection Act (CEPA) against L'Oréal USA and L'Oréal, S.A.

The Third Circuit reversed the District Court's decision to dismiss, finding that Trzaska had sufficient grounds to bring a CEPA claim. The CEPA protects employees from retaliatory actions when an employee refuses to participate in an activity or policy that he/she believes is in violation of a law or rule pursuant to law. The Court concluded that Trzaska's allegation that L'Oréal was instructing or threatening its patent attorneys to disregard the rules of professional conduct is a violation of the public policy mandate under CEPA. The Third Circuit determined that CEPA protection was triggered because a patent itself is relevant to public policy and violation of the rules of professional conduct can harm the public's interest. For these reasons, termination for failure to disregard the ethical obligations of one's profession creates an adequate CEPA claim.

The Third Circuit also reversed the District Court's holding that even if there was sufficient basis to bring a claim, Trzaska failed to adequately plead that claim. The Court concluded that Trzaska had met the standard of review, whether a complaint provides enough facts to raise a reasonable expectation that a cause of action can be determined through discovery. Trzaska's complaint alleged the company policies, as well as the threatened termination of employees. These allegations supported Trzaska's reasonable belief that he would be fired if he did not disregard his ethical obligations sufficient to proceed to discovery.

The Third Circuit denied L'Oréal, S.A.'s motion to dismiss the appeal due to the failure file a notice of appeal. The Court held that there was a connection between the appeal against L'Oréal USA and L'Oréal, S.A. and there was an inferred intent to appeal both orders The Third Circuit determined that there was clear intent that Trzaska wanted to appeal against both orders. In addition, L'Oréal, S.A. was still given the full opportunity to brief the issues.

Circuit Judge Chagares dissented in part, noting that he would have found that Trzaska did not sufficiently plead a CEPA claim because a heightened standard should be applied to Trzaska as an attorney and he failed to plead that L'Oréal demanded that he violate his professional obligations.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153810p.pdf

Panel: Ambro, Chagares, and Fuentes, Circuit Judges

Argument Date: November 16, 2017

Date of Issued Opinion: July 25, 2017

Docket Number: No. 15-3810

Decided: Reversed and Remanded

Case Alert Author: Kristina Flatley

Counsel: Daniel Bencivenga and Harold Goodman, Counsel for Appellant; George Barbatsuly, Laura Scully, Christopher Carton, and Eric Savage, Counsel for Appellees.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/26/2017 03:07 PM     3rd Circuit     Comments (0)  

July 21, 2017
  Semcrude L.P. v. J. Aron & Co. - Third Circuit
Headline: Downstream Buyers are Considered Buyers-for-Value and Purchased Oil From Bankruptcy Debtor/Midstream Purchaser Free of Security Interests Claimed by Oil Producers

Area of Law: Fraud; Bankruptcy

Issue(s) Presented: Did J. Aron and BP satisfy the three requirements of the buyer-for-value defense? Was jurisdiction of the District Court and Bankruptcy Court appropriate under Title 11? Is constructive knowledge sufficient to overcome the knowledge elements of the buyer-for-value defense?

Brief Summary:

In the aftermath of the bankruptcy of SemGroup, a midstream purchaser, the oil producers filed a suit against J. Aron and BP oil, the downstream purchasers, to obtain full payment for the oil. The District Court granted summary judgment in favor of J. Aron and BP on recommendation of the Bankruptcy Court. The Third Circuit affirmed, finding that the Producers had not perfected their claimed security interests, and that J. Aron and BP were buyers-for-value, which allowed them to purchase the oil free of any secured interest. In addition, the Third Circuit found no sufficient evidence for the fraud claim brought against J. Aron and BP.

Extended Summary:

SemGroup operated as a "midstream" company because SemGroup purchased oil from producers and sold that oil to downstream purchasers. As a result, the oil producers and downstream purchasers were both effected when SemGroup filed for bankruptcy. Based on previous agreements, the downstream purchasers were protected from SemGroup's insolvency and were paid in full after the bankruptcy. However, the producers made no protection agreement and were only paid in part. As a result, the producers filed claims against J. Aron and BP, the downstream purchasers, to recover unpaid debts. The Bankruptcy Court recommended summary judgment in favor of J. Aron and BP, finding that there was no evidence of fraud and that both companies were free of any security interest as buyers for value. The District Court adopted the Bankruptcy Court's recommendation for summary judgment.

The Third Circuit affirmed that the Bankruptcy Court and the District Court had jurisdiction under 28 U.S.C. § 157(c)(1) and 28 U.S.C. § 1334(b) because the proceedings were related to cases under title 11. Both Courts appropriately exercised related-to jurisdiction because the proceedings had a potential effect on the bankruptcy estate.

The Court affirmed that Delaware and Oklahoma law govern perfection and that J. Aron and BP qualified as buyers for value because the Producers' security interests were not perfected. The Producers claimed that their security interest in the oil continued after the oil was resold to J. Aron and BP. Under U.C.C. § 9-317(b), if a security interest were not perfected, J. Aron and BP would take the oil free of that security interest, unless they actually knew of the security interest. The Producers also argued that Texas or Kansas law should govern perfection. Under U.C.C. Article 9, the local law of the jurisdiction where a debtor is located should govern perfection. The Bankruptcy and District Courts appropriately applied Delaware's choice-of-law rules because Delaware is the forum state. Under Delaware law, a financing statement must be filed in order to have perfected security interests. The Producers failed to make this filing, and thus their interests are unperfected.

The Third Circuit determined that J. Aron and BP satisfied the second requirement of the buyer-for-value defense because they purchased oil on credit per industry custom. Under U.C.C. § 1-204, J. Arons and BP's purchases on credit were sufficient to satisfy the value requirement.

The Third Circuit also affirmed the District Court in finding that no reasonable fact finder would determine that J. Aron or BP had knowledge of the Producer's security interest. Under U.C.C. § 1-202(b), actual knowledge is required to negate the third element of the buyer-for-value defense. The Court affirmed that constructive knowledge is not sufficient to defeat this defense. J. Aron and BP satisfied the three elements required to demonstrate the buyer-for-value defense. For this reason, summary judgment was appropriate. The Court declined to determine whether they were also buyers in the ordinary course.

The Third Circuit affirmed the District Court's grant of summary judgment against the Producers' fraud claim. The Court determined that the Producers had the opportunity to fully oppose summary judgment during the discovery process. The Producers were unable to demonstrate direct evidence in the record to suggest that J. Aron or BP participated in fraud or that they even knew most of the producers. The business arrangement between SemGroup, J. Aron and BP , which involved options trading in addition to the purchase of oil, was not sufficient to demonstrate that J. Aron and BP knew that they were taking oil that had not been paid for.

Finally, the Court determined that the District Court's grant of summary judgment against the Oklahoma Producers was appropriate because the Oklahoma Production Revenue Standards Act (PRSA) did not create an implied trust or impose any duties on J. Aron. The Oklahoma Producers argued that, under the PRSA, an implied trust would be created against J. Aron and therefore, it would be responsible for full payment of the oil. The Court determined that the PRSA was not intended to be applied to downstream purchasers, like J. Aron, and that the language in the statute does not suggest the creation of an implied trust that travels down the stream of commerce. The Third Circuit further concluded that the 2010 Lien Act does not apply to this case because it was passed after SemGroup declared bankruptcy.

The Third Circuit affirmed the rulings of both the Bankruptcy and District Courts.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153094p.pdf

Panel: Ambro, Jordan, and Fisher, Circuit Judges

Argument Date: April 4, 2017

Date of Issued Opinion: July 19, 2017

Docket Number: Nos. 15-3094, 15-3095, 15-3096, 15-3097, 15-3121, 15-3123, 15-3124

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: Blake Bailey, Paul Moak, Basil Umari, Peter Goodman, Sarah Jorgensen, Michael Carney, Hugh Ray, Lewis LeClair, Adam Landis, and Matthew McGuire, Counsel for Anstine & Musgrove Inc.; Don Beskrone, Stacy Newman, Boaz Morag, Rishi Zutshi, and Thomas Moloney, Counsel for J. Aron & Co.; James Carr, Melissa Byroade, David Zalman, Monica Hanna, Kevin Capuzzi, and Jennifer Hoover, Counsel for BP Oil Supply Co.; Ian Bifferato, Thomas Driscoll, III, Kevin Collins, Mark Collins, John Knight, Michael Romanczuk, Zachary Shapiro, L. Katherine Good, Maris Kandestin, Garvin McDaniel, R. Stephen McNeill, Travis McRoberts, Benjamin Stewart, Mark Stromberg, and W. Robert Wilson, Counsel for Semcrude LP; Charles Brown, III, Counsel for Star Production Inc.; Hartley Martyn and Duane Werb, Counsel for IC Co. Inc.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/21/2017 02:01 PM     3rd Circuit     Comments (0)  

July 20, 2017
  Parks, LLC v. Tyson Foods, Inc-Third Circuit
Headline: False advertising claims may not be used to subvert the evidentiary burden of a false association claim

Area of Law: Trademarks

Issues Presented: Is there a substantive distinction between false advertising and false association claims? Does geographic origin refer solely to place of origin, or does it include any broader conception of the term origin?

Brief Summary:
The Third Circuit affirmed the lower court's dismissal of PARKS' false advertising and false association claims against Tyson. The court dismissed the false advertising claim because - principally - it was a false association claim in disguise, the former of which has a lesser evidentiary burden. For the false association claim, the court held that no reasonable jury could find secondary meaning in the "PARKS" mark because there is almost no direct-to-consumer advertising, PARKS had a miniscule market share, and there is virtually no record of actual confusion.

Extended Summary:
Parks Sausage Company ("PARKS") was founded in 1950 and is the first African-American owned company to be publicly traded on the NYSE. The company enjoyed wide success and recognition until the early 1990's, when it went bankrupt and sold to new owners, who then entered into a licensing agreements with distributors. PARKS registered its trademark in 1970 and let it lapse around 2000.

Tyson owns and manufactures "BALL PARK" branded hot dogs, which account for 23% of all franks sold in the United States.* Tyson claims that 90% of adults in the U.S. recognize the Ball Park brand, so it designed a premium product - "PARK'S FINEST" - to capitalize on the brand recognition.

The claims on appeal were false association and false advertising, which PARKS brought under the Lanham Act. To establish a false advertising claim, the statement must misrepresent the nature, characteristics, qualities, or geographic origin of a product. To establish a false association claim, the owner of an unregistered trademark has the burden of proving the existence of a protectable mark - here, a second meaning in the form of a mental association in buyers' minds between the alleged mark and a single source of the product.

PARKS made three arguments in support of its false advertising claim, the name PARK'S FINEST is misleading because: it falsely implies Tyson's product is one of PARKS' products; it implies that the product is a sausage when it is really a frankfurter, an item consumers may regard as inferior; and it mispresents product origin.

The court dismissed all three for being inseparable from false association claims. It reasoned PARK'S FINEST is only misleading if a consumer makes the connection between PARK'S FINEST and PARKS, and has in mind a pre-existing association between PARKS and high-quality products. The court noted that the distinction between a frankfurter and a sausage is not legally significant - here, the PARK'S FINEST packaging displays a factually accurate unambiguous statement that the product is a frankfurter, and a frankfurter is a kind of sausage. Additionally, the court specifically held that "geographic origin" refers solely to place of origin and not to the creator, manufacturer, or any broader conception of the term origin. The name PARK'S FINEST says nothing about the product's geographic origin, so the false advertising claim failed on all three allegations.

On the false association claim, PARKS argued its mark is inherently distinctive and - in the alternative - that its mark had secondary meaning. The court affirmed the claim's dismissal because trademarks based on the surname of a founder - Parks - are not inherently distinctive, and the mark cannot have secondary meaning if not interpreted by the public as both an identification of the product and a representation of its origin. The record showed no recent extensive advertising such as would create the necessary mental association between the mark and the product - Tyson submitted extensive focus group/survey data showing the name PARK'S FINEST was selected without any reference to PARKS and none of the sales numbers from PARKS are large enough to indicate a secondary meaning.

PARKS attempted to establish secondary meaning by showing customer confusion, but the court found insufficient evidence. The customer surveys submitted by PARKS were fundamentally flawed and did not evaluate the presence of secondary meaning. Also, there was no showing of actual confusion amongst consumers because there were only a handful of such complaints among the millions of franks sold by PARK'S FINEST.

* "Though it may distress the cognoscenti, we use the terms 'frankfurters,' 'franks,' and 'hot dogs,' as synonyms. Not so with the term 'sausage,' which we use to denote something akin to but arguably different from hot dogs."

Find the full opinion at: http://www2.ca3.uscourts.gov/opinarch/162768p.pdf

Panel: Circuit Judges Smith, Jordan, and Roth

Argument Date: March 22, 2017

Date of Issued Opinion: July 6, 2017

Docket Number: No. 16-2768

Decided: Affirmed

Case Alert Author: Kevin P. McGilloway

Counsel:
Roberta Jacobs-Meadway, Jeffrey P. Lewis, Theodore H. Jobes, Ronald J. Shaffer, James C. McConnon, Alex R. Sluzas, counsel Appellant

Daniel T. Brier, Mark H. Churchill, John J. Dabney, Mary D. Hallerman, counsel for Appellees

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/20/2017 10:27 AM     3rd Circuit     Comments (0)  

July 17, 2017
  Atron Castleberry v. STI Group - Third Circuit
Headline: "Pervasive or Severe" is the Appropriate Legal Standard for a Harassment Claim; An Isolated Incident Can Give Rise to a Harassment or Retaliation Claim.

Area of Law: Employment Discrimination

Issue(s) Presented: Was "pervasive and regular" the appropriate standard to apply to a racial harassment claim? Is an isolated incident of discrimination sufficient to be considered "severe"? Can one incident be sufficient to bring a retaliation claim? Can a claim of disparate impact discrimination be brought under § 1981?

Brief Summary:
Castleberry and Brown filed claims under § 1981 for racially-based harassment, discrimination, and retaliation in their workplace. The Third Circuit reversed the dismissal of the harassment claim, finding that the District Court applied the wrong legal standard and that the Plaintiffs satisfied the correct "severe or pervasive" standard. The Third Circuit reversed the District Court's dismissal of the disparate treatment claim because appropriate burden-shifting framework was not implemented. Defendants did not meet their burden of proof to overcome Plaintiffs' allegations. The Court reversed the dismissal of the retaliation claim, finding that an isolated incident is sufficient to bring claim under § 1981. The Third Circuit did not remand for Plaintiffs' amended disparate impact claim because the claim cannot be brought under § 1981.

Extended Summary:

Atron Castleberry and John Brown were hired by STI Group to work as general laborers for Chesapeake Energy Corporation. During their employment, Appellants claim multiple instances where they were harassed or discriminated against based on their race. They claim that they were not permitted to work on the pipelines, even though they had sufficient work experience. They also reported the use of offensive language and racial comments made towards them. After reporting an incident to a superior, Castleberry and Brown were terminated, rehired, and then terminated again. The reasoning that STI Group gave for their termination was "lack of work." Castleberry and Brown filed a suit against STI and Chesapeake claiming racially-based harassment, discrimination, and retaliation under 42 U.S.C § 1981.

The Third Circuit reversed the District Court's decision to dismiss the harassment claim because the District Court used the "pervasive and regular" standard when assessing the harassment claim. In order to prevail on a harassment claim, a plaintiff must demonstrate that the discrimination was severe or pervasive. Due to conflicting precedent, the District Court applied the incorrect standard when assessing the Plaintiffs' harassment claim. The Third Circuit clarified that "severe or pervasive" is the correct standard and that one incident can be sufficient to state a claim. The racially charged slurs, as well as threats of termination, were enough to bring a harassment claim.

The Court reversed the District Court's decision to dismiss the Plaintiff's claim under disparate treatment discrimination. Plaintiffs brought allegations of undesirable work assignments due to their race, as well as termination because of their race. The Third Circuit ruled that these allegations were sufficient to satisfy the elements of a discrimination claim. The District Court erred in dismissing before Defendants had satisfied their burden of demonstrating nondiscriminatory reasons for the incidents that occurred.

The Third Circuit also reversed the District Court's dismissal of the retaliation claim because the District Court was relying on the incorrect reasoning that an isolated discriminatory remark would not satisfy the "pervasive and regular" standard. Under the correct "severe or pervasive" standard, an isolated incident is sufficient to bring a claim and can amount to unlawful activity. Due to this incorrect application, the Third Circuit found that Plaintiffs could bring a retaliation claim under the premise that one discriminatory remark could amount to unlawful activity.

While the District Court did not address the Plaintiffs' claim of disparate impact discrimination, the Third Circuit found that remand was unnecessary because a claim of disparate impact cannot be brought under § 1981. The Court determined that § 1981 was enacted to provide recourse for purposeful and intentional discrimination claims and does not support claims brought under a theory of disparate impact.

The Third Circuit reversed and remanded the District Court's decision in regards to Plaintiffs' harassment, disparate treatment discrimination, and retaliation claims.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163131p.pdf

Panel: Ambro, Vanaskie, and Restrepo, Circuit Judges

Argument Date: March 28, 2017

Date of Issued Opinion: July 14, 2017

Docket Number: No. 16-3131

Decided: Reversed and Remanded

Case Alert Author: Kristina Flatley

Counsel: David Horowitz and Richard Swartz, Counsel for Appellant; Terri Patak, Daniel Brier, and Donna Walsh, Counsel for Appellees.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/17/2017 04:33 PM     3rd Circuit     Comments (0)  

July 14, 2017
  Noreen Susinno v. Work Out World Inc.- Third Circuit
Headline: Plaintiff has standing for claim under the Telephone Consumer Protection Act based on single pre-recorded call to her cell phone

Area of Law: Consumer protection, TCPA

Issues Presented: Does the TCPA prohibit a solicitor from leaving a single voicemail of a pre-recorded promotional offer on a consumer's cellphone? If so, is mere receipt of the call a sufficiently concrete injury for Article III standing?

Brief Summary:
Work Out World (WOW) left one prerecorded promotional voicemail on Susinno's cell phone, which Susinno claimed was a violation of the Telephone Consumer Protection Act (TCPA). The Third Circuit reversed dismissal of her claim, holding that the TCPA prohibition extends to single phone calls and that the call caused Susinno a concrete injury. The Third Circuit held that, where a plaintiff's intangible injury has been made legally cognizable through the democratic process, and the injury closely relates to a cause of action traditionally recognized in the English and American courts, standing to sue exists. The injury here was squarely covered by the TCPA and is closely related to traditional torts like invasion of privacy, intrusion upon seclusion, and nuisance.

Extended Summary:

The Third Circuit reversed the District Court's dismissal for lack of subject matter jurisdiction of a claim under the TCPA. Plaintiff Susinno had alleged a claim under the TCPA based on WOW's single pre-recorded call to her cell phone. The Court rejected WOW's argument that the TCPA does not prohibit a single pre-recorded call to a cell phone if the owner is not charged for the call, and that congress's primary concern in prohibiting prerecorded calls is the cost to the consumer. The Court noted that the TCPA grants the FCC power to exempt from prohibition certain prerecorded calls that do not charge the recipient. It also found such calls may implicate the privacy rights Congress intended to protect with the statute - regardless of charges - and held the statute applies equally to residential cell phones as it does house phones.

The Court further held that Susinno's alleged injuries were sufficiently concrete to establish constitutional standing under Spokeo. It held that, when one sues under a statute alleging the very injury the statute is intended to prevent, and the injury has a close relationship to a harm traditionally providing a basis for a lawsuit, a concrete injury has been pleaded. Congress squarely identified single-prerecorded calls as an injury under the TCPA. Susinno met the second part of the test because her claim closely relates to a common law cause for intrusion upon seclusion - which has long been heard in American courts - and Congress sought to protect the same interests implicated by this traditional common law claim in enacting the TCPA. Therefore, Susinno alleged a sufficiently concrete intangible injury.

Find the full opinion at: http://www2.ca3.uscourts.gov/opinarch/163277p.pdf

Panel: Circuit Judges Hardiman and Krause, and District Judge Stengel (sitting by designation)

Argument Date: March 8, 2017

Date of Issued Opinion: July 10, 2017

Docket Number: No. 16- 3277

Decided: Reversed and remanded for further proceedings.

Case Alert Author: Kevin P. McGilloway

Counsel:
Keith J. Keogh, Timothy J. Sostrin, Yitzchak Zelman, Ari Marcus, counsel for Appellant

Joshua S. Bauchner, Michael H. Ansell, counsel for Appellees

Andrew J. Pincus, counsel for amicus Chamber of Commerce in support of Appellees

Brian Melendez, counsel for amicus ACA International in support of Appellees

Author of Opinion: Judge Hardiman

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/14/2017 04:37 PM     3rd Circuit     Comments (0)  

July 11, 2017
  USA v. Binyamin Stimler - Third Circuit
Headline: No Reasonable Expectation of Privacy in CSLI, religious freedom did not preclude rabbis' prosecution for kidnapping

Area of Law: Criminal Law

Issue(s) Presented: Is there a reasonable expectation of privacy in cell site location information?? Was the government's kidnapping prosecution substantially burdensome to the religious beliefs of the defendants? Was an FBI sting sufficiently outrageous to violate due process?

Brief Summary:
Three rabbis appeal their convictions for conspiracy to kidnap recalcitrant husbands to force them to agree to divorce. They claimed error in denying a motion to suppress evidence, a Fourth Amendment violation, violation of the Religious Freedome Restoration Act, jury instruction errors, and a due process violation. The Third Circuit affirmed, holding that the third-party doctrine does not apply to cell site location information (CSLI) and there is no reasonable expectation of privacy in CSLI. The Court also affirmed that the government has a compelling interest in preventing kidnapping and the prosecution did not substantially burden the defendants' religious beliefs. The Third Circuit also found that evidence of the defendants' religious practices was not relevant to the affirmative defense of consent and could, therefore, be excluded. The Court rejected the argument that the FBI's sting operation which led to the arrests was so outrageous that it violated due process. Finally, the Court affirmed the finding that the co-conspirator statements were admissible because they were made in furtherance of the conspiracy.

Extended Summary:

Binyamin Stimler, Jay Goldstein, and Mendel Epstein were convicted of conspiracy to commit kidnapping. All three men were Orthodox Jewish rabbis. They were involved with a kidnapping ring, where the rabbis would kidnap and torture Jewish husbands to coerce them to sign divorce contracts. After being arrested during an FBI sting, all three men were convicted following a jury trial.

The Third Circuit affirmed the District Court's decision to deny Goldstein's motion to suppress cell site location information (CSLI) evidence. Under the Stored Communications Act (SCA), the government can require a provider to disclose records when a court order is obtained, if there are reasonable grounds for requiring this information. This standard was satisfied because the government was able to demonstrate that it had sufficient reason to believe that the CSLI would be able to assist in the investigation. The Court relied In re Application, which held that the third-party doctrine does not apply to CSLI and that individuals do not have a reasonable expectation of privacy in CSLI. The Court determined that subsequent cases from other circuits were not sufficient to undermine the holding in In re Application and that Supreme Court precedent was distinguished so that denial of the motion to suppress was appropriate.

The Court next found that defendants were unable to demonstrate that the government substantially burdened their religious beliefs. Under the Religious Freedom Restoration Act (RFRA), government conduct cannot substantially burden an individual's exercise of religion, unless that burden is the "least restrictive means of furthering a compelling government interest." The defendants had the original burden of proving that the government substantially burdened their religious beliefs and they were unable to show that they lacked acceptable alternative means to assist the women in getting divorces. In addition, the government has a compelling interest in preventing serious crimes, such as kidnapping.

The Court held that the District Court did not abuse its discretion in excluding evidence about Orthodox Jewish marital law. The Court affirmed that evidence of religious practices was not relevant to raising the affirmative defense of consent because there was no specific consent given to the particular kidnappings and therefore, the religious evidence was not relevant. The Court was also concerned that religious evidence might have prejudiced the jury.

The Third Circuit found no error regarding the District Court's jury instructions. The Court concluded that the District Court's instruction regarding the conspiracy charge was sufficient because the instructions, as a whole, made it clear that the charge contained a jurisdictional element. The Court found no error regarding the kidnapping instruction because many jury instructions have been upheld that do not include a temporal element. A reasonable jury would have found that the defendants' actions involved "an appreciable period of time." The Court also found no error in the jury instruction that referred to the specific motive that was charged in the indictment.

The Court affirmed the District Court's decision to admit statements made by alleged co-conspirators. The Court determined that the statements were not testimonial because the individuals would not have believed their statements would be used to aid in a criminal prosecution. The Confrontation Clause was not violated by the admission of these statements. The admissibility of the statements was appropriate under the Federal Rules of Evidence because the individuals were members of the kidnapping team and co-conspirators. Their statements were made in furtherance of the conspiracy and thus properly admitted.

The Court concluded that the due process claim, that the sting operation was outrageous, was barred because the argument was not made in District Court. However, the Court determined that, even if the argument was allowed, no due process violation occurred. The government's operation could not be considered "so outrageous" to be considered as a due process violation.

Judge Restrepo concurred in the judgment but would have held that the government's actions, regarding the CSLI, were a warrantless search that violates the Fourth Amendment. In all other aspects of the opinion, Judge Restrepo concurred.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/154053p.pdf

Panel: Chagares, Restrepo, and Roth, Circuit Judges

Argument Date: January 25, 2017

Date of Issued Opinion: July 7, 2017

Docket Number: No. 15-4053, 4094, 4095

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: Nathan Lewin and Gedalia Stern, Counsel for Appellant Stimler; Aidan O'Connor, Counsel for Appellant Goldstein; Laura Gasiorowski and Robert Stahl, Counsel for Appellant Epstein; Mark Coyne, Norman Gross, and Glenn Moramarco, Counsel for Appellee.

Author of Opinion: Circuit Judge Roth

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/11/2017 03:58 PM     3rd Circuit     Comments (0)  

  Daryoush Taha v. County of Bucks - Third Circuit
Headline: Third Circuit Determines that Compensatory Damages are not Required to Impose Punitive Damages under CHRIA; Punitive Damages can be Imposed on Government Agencies.

Area of Law: Class Certification, punitive damages

Issue(s) Presented: Can a court impose punitive damages without any compensatory damages under CHRIA? Does Plaintiff need to demonstrate actual harm to have standing under Article III? Can punitive damages be imposed on a government agency?

Brief Summary:
The Third Circuit affirmed the District Court's certification of a class in a suit challenging Bucks County's creation of an internet search tool that included personal information on every individual held in the Bucks County Correctional Facility since 1938. The Court ruled that intangible harm is sufficient to create standing under Article III. Taha sufficiently demonstrated "aggrieved" standing under Pennsylvania's Criminal History Record Information Act (CHRIA) by showcasing harm that was unique to him. The Court further affirmed that compensatory damages are not required for punitive damages to be imposed. Under Pennsylvania law, punitive damages can be imposed as long as the plaintiff can demonstrate a cause of action. The Court affirmed the District Court's finding that punitive damages could be imposed on a government agency because CHRIA provides a waiver of sovereign immunity.

Extended Summary:

Daryoush Taha is the class representative for a punitive class claim brought against Bucks County and Bucks County Correctional Facility for the creation of an "Inmate Lookup Tool." This tool allows individuals to search for people who have been held or incarcerated at Bucks County Facility. Taha was incarcerated in 1998, but his record was ultimately expunged. In 2011, Taha learned of the inmate search tool, which had his mug shot and information on his arrest. Taha filed for certification of a class composed of individuals whose criminal history could be located on the search tool. The District Court granted class certification and partial summary judgment.

The Third Circuit was unwilling to review the Defendants' defense that certification violated one-way intervention under Rule 23 because they failed to raise the defense in District Court. The Third Circuit determined that the defendants had multiple opportunities to raise this defense below and they failed to do so.

The Third Circuit also found that Taha had standing under Article III and under CHRIA. The Court determined that Taha had standing under Article III because intangible harm can be sufficient to meet the necessary requirements. The Court determined that Taha sufficiently demonstrated that he suffered actual harm from the posting of his photograph, including embarrassment, sadness, and weight loss. Under CHRIA, the Court found that Taha demonstrated "aggrieved" standing because he has a substantial, direct, and immediate interest in the outcome of the litigation. Taha sufficiently showcased that the harm he experienced was unique to him and that causation exists between the defendants' actions and the harm that occurred.

The Third Circuit affirmed the District Court's finding that punitive damages could be imposed, even though Taha did not suffer compensatory damages. The Court affirmed this decision with the understanding that, under CHRIA, a court may impose punitive damages without compensatory damages, as long as the plaintiff has demonstrated a cause of action.

The Court affirmed that punitive damages could be imposed upon a government agency. The District Court ruled that CHRIA provides a waiver of sovereign immunity, so punitive damages could be imposed. CHRIA authorizes punitive damages and is applicable to government agencies.

The Third Circuit affirms the District Court holding that the remaining factual issue of willfulness can be determined based on common evidence. The predominance factor requires that common questions relevant to all class members predominate over any questions specific to each individual. The question of the defendants' intent in creating the website can be answered without taking into account the individual effects on class members.

The Third Circuit affirmed the District Court's decision.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163077p.pdf

Panel: Greenaway, Jr., Shwartz, and Greenberg, Circuit Judges

Argument Date: March 15, 2017

Date of Issued Opinion: July 6, 2017

Docket Number: No. 16-3077

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: Frank Chernak and Burt Rublin, Counsel for Appellants; Alan Denenberg, Robert LaRoca, and Jonathan Shub, Counsel for Appellee; Crystal Clark, Counsel for Amicus Curiae County Commissioners Association of Pennsylvania; Janet Ginzberg, Counsel for Amicus Curiae Community Legal Services.

Author of Opinion: Circuit Judge Greenberg

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/11/2017 03:05 PM     3rd Circuit     Comments (0)  

July 10, 2017
  Richard Fields v. City of Philadelphia - Third Circuit
Headline: Third Circuit Determines that Recording Police Officers in Their Official Duties is a First Amendment Right; Police Officers are Granted Qualified Immunity

Area of Law: First Amendment

Issue(s) Presented: Is there a First Amendment right to record police activity in public? If so, was this right sufficiently established to overcome qualified immunity?

Brief Summary:

The Third Circuit held that the First Amendment protects an individual's right to record police officers performing their official duties in public areas. It rejected the lower court's decision limiting constitutional protection based on the intent of the recorder, holding that recording is protected regardless of the recorder's intent to share the recording. However, the Third Circuit held that the officers were entitled to qualified immunity because, at the time of both incidents, the constitutional right that they violated was not clearly established. The Court did not make a ruling on municipal liability because the District Court did not have the opportunity to make a first judgment.

Extended Summary:

Amanda Geraci was attending a protest when she began to record a police officer arresting a protestor. When the police noticed, an officer pushed her against the wall so that she would be unable to film the arrest. She was not arrested. Similarly, Richard Fields was recording the police while they broke up a party. When he refused to stop filming, he was arrested and his phone was confiscated. While being detained, the officer searched through the videos on his phone. He was released with a citation, which was eventually dropped. Both filed claims under 42 U.S.C. § 1983, against the City of Philadelphia and individual police officers. The Plaintiffs alleged that their First Amendment right to record was violated by these officers. The District Court granted summary judgment in favor of the officers and determined that the Plaintiffs' activities were not protected by the First Amendment because the act of recording was not expressive conduct.

The Third Circuit reversed, holding that expressive intent does not need to be present at the moment the recording takes place. Instead, an individual might not appreciate the content of the recording until afterwards. The First Amendment should provide the opportunity to use a recording in an expressive manner. The Court notes the importance of information about police activity and how recordings help to provide accurate information. For these reasons, the Court held that the First Amendment protects the recording of police officers performing their official duties in public, consistent with reasonable time, place, and manner restrictions. A recording that interferes with police activity might not be protected under the First Amendment. However, the Plaintiffs involved in this case did not interfere with the police activity.

However, the Court also found that the police officers are entitled to qualified immunity because this First Amendment right was not clearly established when the violation took place. The right to record police officers in their official duties was not a right that had been established in previous opinions. Plaintiffs argued that the Police Department's policies should be enough to clearly establish the First Amendment right. The Court determined that these policies were not sufficient to make officers understand the constitutional right to record.

The Court remanded the issue of municipal liability to allow the District Court the first opportunity to make this determination.

Circuit Judge Nygaard concurred in part and dissented in part, agreeing with the holding that recording police officers in their official duties is a First Amendment right. However, he would hold that this right was clearly established and therefore, qualified immunity is inappropriate.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/161650p.pdf

Panel: Ambro, Restrepo, and Nygaard, Circuit Judges

Argument Date: May 9, 2017

Date of Issued Opinion: July 7, 2017

Docket Number: Nos. 16-1650 and 16-1651

Decided: Reversed and Remanded

Case Alert Author: Kristina Flatley

Counsel: Jonathan Feinberg, John Grogan, Peter Leckman, Seth Kreimer, Mary Roper, and Molly Tack-Hopper, Counsel for Appellants; Craig Gottlieb, Counsel for Appellees; Dorothy Hickok, Alfred Putnam, Mark Taticchi, and Ilya Shapiro, Counsel for Amicus Appellant Cato Institute; Eli Segal, Counsel for Amicus Appellant Society for Photographic Education; Sharon McGowan, April Anderson, and Tovah Calderon, Counsel for Amicus Appellant United States of America; Bruce Brown and Gregg Leslie, Counsel for Amicus Appellant Reporters Committee for Freedom of the Press and 31 Media Organizations; Sophia Cope and Adam Schwartz, Counsel for Amicus Appellant Electronic Frontier Foundation; Robert LaRocca, Counsel for Amicus Appellant First Amendment Law Professors; Patrick Geckle, John Burton, and David Milton, Counsel for Amicus Appellant National Police Accountability Project; Jason Gosselin, John Whitehead, Douglas McKusick, and Christopher Moriarty, Counsel for Amicus Appellant Rutherford Institute.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/10/2017 09:51 AM     3rd Circuit     Comments (0)  

July 7, 2017
  Colleen Reilly, et al. v. City of Harrisburg, et al. - Third Circuit
Headlines: Third Circuit Holds that while Considering a Request for Equitable Relief, the Movant Must Meet the Threshold for the Two Most Critical Factors, Not All Four Factors.

Third Circuit Holds that in a First Amendment Case, the Government Bears the Burden of Proof on the Ultimate Question of a Statute's Constitutionality.

Area of Law: Constitutional Law, Equitable Relief

Issue(s) Presented: In deciding a request for equitable relief, should a court require all four factors to be met for the request to be appropriate, or only the first two most critical factors?

In a First Amendment case, does the burden of proof shift to the Government to prove ultimate questions of a statute's constitutionality, or must the plaintiff prove its likelihood to succeed on the merits?

Brief Summary: Plaintiffs brought a constitutional challenge to a Harrisburg city ordinance they allege impermissibly restricts their right to protest near abortion clinics. Plaintiffs also sought a preliminary injunction to enjoin the ordinance's enforcement. The District Court denied their request for an injunction because it claimed Plaintiffs did not meet their burden of demonstrating that they were likely to succeed on the merits. Plaintiffs requested that the Third Circuit review the merits of their case and the denial of the injunction. Because Plaintiffs' claims were still before the District Court, the Third Circuit stated that the District Court should evaluate the constitutional claims. Regarding the request for injunctive relief, the Third Circuit held that the District Court misallocated the burden of demonstrating narrow tailoring. It also clarified the analysis for granting a preliminary injunction. The Third Circuit ultimately vacated the decision and remanded for further consideration.

Extended Summary: Plaintiffs Colleen Reilly and Becky Biter brought a constitutional challenge to a Harrisburg city ordinance they allege impermissibly restricts their right to protest in the vicinity of abortion clinics. Plaintiffs also sought a preliminary injunction to enjoin the ordinance's enforcement. The District Court denied their request for an injunction because it claimed Plaintiffs did not meet their burden of demonstrating that they were likely to succeed on the merits. Plaintiffs requested that the Third Circuit review the merits of their case and the denial of the injunction.

The ordinance prohibited persons to knowingly congregate, patrol, picket or demonstrate in a zone extending twenty (20) feet from a health care facility. The ordinance's purpose was to promote the health and welfare of the city's residents and visitors to the health care facilities, as well as the health and welfare of those who wished to voice their constitutionally protected speech outside of the facilities. The ordinance applied to all persons equally, except for police, employees and other exempted persons, regardless of the intent of their conduct or content of their speech. Plaintiffs claim to provide sidewalk counseling to those entering abortion clinics by use of leaflets, prayer and conversation, in attempts to dissuade patients from getting abortions. Plaintiffs allege that the ordinance creates unconstitutional buffer zones that render their ability to engage effectively in counseling impossible. They allege that the ordinance violates their First Amendment rights to speak freely, exercise their religion, and assemble. They also allege the ordinance violates their Fourteenth Amendment due process and equal protection rights. In additional to challenging the constitutionality of the ordinance, Plaintiffs requested a preliminary injunction to enjoin the enforcement of the ordinance. The District Court ruled that Plaintiffs did not meet their burden of demonstrating that they were likely to succeed on the merits and denied their request for relief.

Regarding the request for injunctive relief, the Third Circuit held that the District Court did not provide a full analysis of whether to grant the request, and misallocated the burden of demonstrating narrow tailoring. It therefore vacated the decision and remanded for further consideration. The Third Circuit ultimately held that a movant for preliminary equitable relief must meet the threshold for the first two most critical factors. First, it must demonstrate that it can win on the merits. Second, it must demonstrate that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. Once these gateway factors are met, the court can then consider the remaining two factors and determine, in its sound discretion, if all four factors taken together balance in favor of granting the requested preliminary relief.

The Third Circuit also reasoned that while plaintiffs normally bear the burden of demonstrating a sufficient likelihood of prevailing on the merits, in First Amendment cases, the Government bears the burden of proof on the ultimate questions of a statute's constitutionality. Plaintiffs must be deemed likely to prevail unless the Government has shown that Plaintiffs' proposed alternatives are less effective than the statute. The burdens at the preliminary injunction stage track the burdens at trial, which rest with the Government for First Amendment purposes. Therefore, the Third Circuit vacated and remanded the decision for further proceedings.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163722p.pdf

Panel: Ambro, Jordan, and Roth, Circuit Judges

Argued: March 21, 2017

Date of Issued Opinion: May 25, 2017

Docket Number: No. 16-3722

Decided: Vacated and remanded.

Case Alert Author: Rachel N. Costello

Counsel: Mary E. McAlister, Esq., Mathew D. Staver, Esq., & Horatio G. Mihet, Esq., Counsel for Appellants; Joshua M. Autry, Esq. & Frank J. Lavery, Jr., Esq. Counsel for Appellees.

Author of Opinion: Ambro, Circuit Judge.

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 07/07/2017 12:33 PM     3rd Circuit     Comments (0)  

July 6, 2017
  John Daubert v. NRA Group, LLC, d/b/a National Recovery Agency - Third Circuit
Headline: Specific evidence is required to show express consent to receive collection calls on cell phone; bona fide error defense to FDCPA claims not applicable to mistake of law

Area of Law: Telephone consumer protection, debt-collection.

Issues Presented:
Does the mere possibility a called-party provided his cell phone number to his creditor - raise a genuine issue of fact as to whether he expressly consented to collection calls?
Is good-faith reliance upon persuasive legal authority sufficient for the bona fide error defense to excuse an FDCPA?

Brief Summary:

Daubert sued NRA for FDCPA violations because there was a barcode used to identify him printed on a collection letter's envelope, and for TCPA violations because he never consented to automated phone calls. NRA asserted an affirmative defense, the bona fide error defense, to the FDCPA claim and argued that Daubert's prior express consent as a defense to the TCPA claim.

The Third Circuit affirmed the grant of summary judgment to Daubert on the TCPA claim, because no direct evidence of Daubert's prior consent existed on the record and NRA failed to show a genuine issue of material fact. Further, the court affirmed the lower court's decision to exclude an affidavit about automated dialing submitted by NRA because it flatly contradicted prior testimony and lacked support from the record.

The Third Circuit reversed the district court's ruling on the FDCPA violations, and remanded with instructions that judgment be entered for Daubert. NRA admitted to the violations when it invoked the bona fide error defense, but it cited the authority of two district courts to excuse its mistake of law. The Third Circuit ruled that the bona fide error defense does not apply to mistakes of law.

Extended Summary:

NRA attempted to collect a $25 debt from Daubert, which he originally owed to a hospital, by sending him a collection letter and calling him sixty-nine times in ten months. The collection letter was sent with a unique identifier barcode, which was plainly visible through the window of the envelope. The sixty-nine phone calls were made using some form of automated phone calling software.

Barcodes fall into a grey area for liability under FDCPA, with precedent on both sides of the question. NRA believed barcodes printed on envelopes were not a violation, a belief supported by two Eastern District court opinions finding no FDCPA violation for printing barcodes to identify the debtor on the envelopes of collection letters. The Third Circuit reversed the grant of judgment as a matter of law to NRA, holding that reliance on precedent shows that NRA made a mistake of law, not fact. The Supreme Court has held that the defense does not apply to mistakes of law.

The sixty-nine phone calls were the basis for TCPA violations. This statute was enacted to shield consumers from unwanted phone calls and other forms of harassment through telecommunications. Collectors may not contact people using automated dialing systems unless the called-party has given prior express consent. Daubert claimed he never consented, the district court found the calls constituted violations, and the Third Circuit affirmed.

The Court rejected NRA's argument that Daubert consented when he gave his phone number to the hospital. Daubert established an absence of direct support for NRA's claim, meeting his burden of proof as the moving party. NRA failed to meet its burden as the non-moving party because it did not do more than "show that there is some metaphysical doubt." There was nothing in the evidence, depositions, interrogatories, and admissions on file that NRA used - beyond its own pleadings and affidavits - to show a genuine dispute of material fact existed relating to the TCPA claim.

The Court also held that the District Court was within its discretion in refusing to admit an affidavit NRA submitted to show the phone calls were not automated. The original testimony regarding the automated system came from a deposition, in which NRA selected an employee to speak on its behalf. The employee testified that some level of automation existed in the phone system, but months later NRA submitted an affidavit saying there was no automation in the process.

The sham-affidavit doctrine provides for the court's discretion in such situations, which the lower court properly exercised under the circumstances. NRA never cited specific evidence nor gave a satisfactory explanation as to the duress or incompetency that compromised the deposition. The court is supposed to consider the totality of the circumstances when using its discretion to admit or reject a sham-affidavit, and this scenario there was nothing on the record that supported the validity of the affidavit over the deposition.

Find the full opinion at: http://www2.ca3.uscourts.gov/opinarch/163613p.pdf

Panel: Circuit Judges Hardiman, Roth, and Fisher

Argument Date: May 23, 2017

Date of Issued Opinion: July 3, 2017

Docket Number: Nos. 16-3613 and 16-3629

Decided: Affirmed in part, reversed in part

Case Alert Author: Kevin P. McGilloway

Counsel
Richard J. Perr, Counsel for Cross-Appellant

Brett M. Freeman, Carlo Sabatini, Counsel for Appellant

Author of Opinion: Judge Fisher

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/06/2017 02:15 PM     3rd Circuit     Comments (0)  

July 5, 2017
  Joseph De Ritis v. Thomas McGarrigle - Third Circuit
Headline: Third Circuit Finds Employee Speech Unprotected by the First Amendment; Qualified Immunity is Granted to Supervisor.

Area of Law: Qualified immunity; First Amendment rights

Issue(s) Presented: Are comments made by attorney to colleagues in and out of the courtroom protected under the First Amendment? If so, does a supervisor who terminated the employee from his position receive qualified immunity?

Brief Summary:

Joseph De Ritis was an Assistant Public Defender, working in the office of Public Defender, Douglas C. Roger. After Roger transferred De Ritis to a different unit, De Ritis started to spread a rumor that he was being punished for taking too many cases to trial. On multiple occasions, he expressed these thoughts with colleagues and judges, both in and out of the courtroom. When Roger caught wind of this rumor, he fired De Ritis for his conduct.

The Third Circuit reversed the District Court's denial of Roger's motion for summary judgment, holding that De Ritis's comments in court were employee speech not protected by the First Amendment; and Roger was entitled to qualified immunity for any violation of the First Amendment based on De Ritis's comments to two municipal officials out of court.

Extended Summary:

Joseph DeRitis sued his former boss, Public Defender Douglas C. Roger, claiming that Roger terminated him in violation of his right to free speech. De Ritis had worked as an Assistant Public Defender under Roger for seven years, moving up to a trial unit. In June 2012, De Ritis was informed that he would need to be transferred back to the juvenile court unit due to staffing issues. De Ritis asked colleagues about the real reason for his transfer, and got the impression that he was transferred because he was bringing too many cases to trial and that this was against the office ideal of moving cases by getting guilty pleas. There was no real evidence to support these accusations, just hearsay.

De Ritis repeated this rumor to his colleagues, judges, and other attorneys over many months. Eventually De Ritis approached Michael Maddren, Country Solicitor and Thomas McGarrigle, chairman of the County Council. DeRitis wanted them to investigate his claims, but neither pursued the matter much further. By May 2013, Roger became aware, through Judge Klein, of the allegations that were being made against him. When confronted by Roger, De Ritis acknowledged all of the individuals to whom he spread these rumors. In response, Roger fired De Ritis. The District Court denied Roger's motion for summary judgment in which he claimed qualified immunity as a public official.

The Third Circuit reversed. It held that De Ritis's comments to colleagues and judges in court were employee speech and not protected by the First Amendment under the applicable three prong test. First, DeRitis's actions were not protected because the speech was within the regular scope of his duties as an employee. Thus he was not protected as he would have been if "he spoke as a citizen, not an employee, if his speech involved a matter of public concern, and if Roger lacked an adequate justification for treating him differently than the general public."

Under the second-prong, the Court analyzed whether De Ritis's out of court speech related to a matter that was valuable and generally relevant to the public. The Court noted that speech that focused on the individual employee's problems, even if there was a potential for public concern, would be viewed as a "personal grievance." De Ritis's out of court statements to other attorneys were not a matter of public concern because these statements were only directly related to De Ritis's own grievance. However, the Court found that the statements made to Maddren and McGarrigle were addressed towards public concern requiring analysis under the third prong. De Ritis expressed some concern for potential violation of the constitutional rights of his clients.

In analyzing the third-prong, the Court balanced De Ritis's interests with the interest of Roger as a state official and found that De Ritis's comments tended to be geared more towards his own individual concern than any public concern. He sought action for himself but failed to follow-up on protecting any rights of his clients. The Court determined that statements made by De Ritis could have seriously hindered the work environment and thus his interests were outweighed by Roger's strong interest in protecting the work environment and promoting positive work performance. At minimum, Roger was entitled to qualified immunity as any right De Ritis had under the First Amendment was not clearly established.

The Third Circuit reversed the District Court's denial of qualified immunity and remanded for further proceedings.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/161433p.pdf

Panel: Vanaskie, Krause, and Nygaard, Circuit Judges.

Argument Date: January 17, 2017

Date of Issued Opinion: June 29, 2017

Docket Number: No. 16-1433

Decided: Reversed and remanded

Case Alert Author: Kristina Flatley

Counsel: Joseph De Ritis, Counsel for Appellee; Mark A. Raith, Counsel for Appellant

Author of Opinion: Circuit Judge Krause

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/05/2017 12:19 PM     3rd Circuit     Comments (0)  

June 23, 2017
  Gerlich v. Leath - Eighth Circuit
Headline Eighth Circuit holds that district court properly granted permanent injunction against Iowa State University in suit concerning student group trademark licensing requests

Area of Law First Amendment

Issue(s) Presented Whether the district court properly found that Iowa State University's trademark licensing decisions violated students' right to free speech and school officials were not entitled to qualified immunity.

Brief Summary Iowa State University (ISU) is home to over 800 officially recognized student groups, one of which is a student chapter of National Organization for the Reform of Marijuana Laws (NORML ISU). Student groups regularly create merchandise, and ISU grants the groups permission to use its trademarks on such merchandise if certain conditions are met. In 2012, NORML ISU submitted a t-shirt design to ISU's Trademark Licensing Office, which contained an ISU trademark and a small cannabis leaf as part of the design. The Trademark Office approved the t-shirt design. Shortly after, a newspaper article concerning state referenda legalizing marijuana was published. The article discussed NORML ISU's political efforts to legalize marijuana in Iowa, and included a quote about ISU being supportive of the group, referencing approval of the t-shirt design.

The article generated concern within ISU administration, resulted in a formal legislative inquiry, and also received attention from the Iowa Governor's Office of Drug Control Policy. As a result, the Trademark Guidelines were changed to prohibit "designs that suggest promotion of the below listed items . . . dangerous, illegal or unhealthy products, actions or behaviors; . . . [or] drugs and drug paraphernalia that are illegal or unhealthy." When NORML ISU requested permission to use the previously approved t-shirt design for a second order, their request was put on hold, and was then denied following the change in Trademark Guidelines. Subsequent requests by NORML ISU to use ISU trademarks in merchandise designs also incorporating a cannabis leaf were also denied. NORML ISU was also singled out as the only student group to have a prior review procedure imposed upon it before its requests could go to the Trademark Office. As a result, two student leaders of NORML ISU sued various ISU officials stating claims for violation of their First and Fourteenth Amendment rights.

The district court determined that the defendant ISU officials were not entitled to qualified immunity and held that the defendants' trademark decisions violated the plaintiffs' right to free speech. The district court also entered a permanent injunction prohibiting defendants from enforcing trademark licensing policies against the plaintiffs in a viewpoint discriminatory manner.

On appeal, a panel of the Eighth Circuit affirmed. The panel first held that the plaintiffs had standing to sue because the student leaders of NORML ISU suffered an injury in fact by having their designs rejected and therefore being unable to spread NORML ISU's message. The panel next concluded that the defendants were not entitled to qualified immunity because ISU had created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. Once a state university has created a limited public forum for speech, it may not discriminate against speech on the basis of its viewpoint, yet here the defendants' rejection of the NORML ISU designs discriminated against the group on the basis of the group's viewpoint as evidenced by the unique scrutiny and prior approval requirements placed on the group. The panel rejected the defendants' argument that they did not violate plaintiff's First Amendment rights because their trademark licensing decisions should be considering government speech. The government speech doctrine does not apply if a government entity has created a limited public forum, as ISU did here when it made its trademarks available for student organizations to use under certain conditions. The Court concluded that because defendants had violated the plaintiff's clearly established First Amendment rights, the district court did not err by denying qualified immunity to the defendants and granting plaintiffs summary judgment on their First Amendment claims. Finally, the court held that the injunctive relief ordered by the district court was not too broad and was not an abuse of the district court's discretion.

Circuit Judge Loken dissented from the court's decision to deny the defendants qualified immunity from the plaintiffs' claims for compensatory damages and attorneys' fees.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/06/161518P.pdf

Panel Circuit Judges Kelly, Loken, and Murphy

Date of Issued Opinion June 13, 2017

Decided Affirmed

Docket Number
16-1518

Counsel Tyler Murphy for Appellants and Robert Corn-Revere for Appellees

Author Circuit Judge Murphy

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/23/2017 10:24 AM     8th Circuit     Comments (0)  

June 22, 2017
  Sixth Circuit: defendant can withdraw guilty plea for any reason if court defers plea acceptance
Headline: Sixth Circuit holds that defendant can withdraw guilty plea for any reason if court defers plea acceptance.

Case: United States v. Andrews

Area of law: Criminal procedure, criminal law

Issue presented: Has a district court accepted a defendant's guilty plea for purposes of Federal Rule of Criminal Procedure 11(d) when it defers acceptance of the plea until after it reviews the presentence report?

Brief summary: Andrews entered a plea agreement, which included a recommended sentence, for various drug-related offenses. At the change-of-plea hearing, the district court held that it would wait to accept the plea and impose the recommended sentence until after it received the presentence report. Before this happened, Andrews moved to withdraw his guilty plea under FRCP 11(d)(1), which allows a defendant to do so for any reason before the district court accepts the plea. The district court denied his withdrawal motion, stating that it had already accepted Andrews's guilty plea at the hearing. On appeal, Andrews argued that the district court had not officially accepted his plea at the hearing. On two issues of first impression, the Sixth Circuit first held that de novo is the proper standard to review whether a district court accepted a defendant's guilty plea. The Sixth Circuit then held that a district court's explicit decision to defer acceptance of a defendant's guilty plea means that the plea has not been accepted for purposes of FRCP 11(d). But the Court declined to establish specific steps that a district court must take in order to accept a defendant's guilty plea.

Extended summary: After being charged with various drug-related crimes, Andrews ultimately agreed to plead guilty in exchange for a reduced sentence. The district court held a change-of-plea hearing, during which it followed the proper procedure under Federal Rule of Criminal Procedure 11(b) for determining that Andrews's plea was knowing, voluntary, and intelligent. At the end of the hearing, the district court stated that it would typically "go ahead and accept the plea and make a finding of guilty" at that point; however, since Andrews's plea agreement included a recommended sentence, the district court wanted to review the presentence report first. Once the district court had the results of the report, it would schedule a second hearing. Before the district court held this second hearing, Andrews filed a motion to withdraw his plea. He argued that he was permitted to do so under Rule 11(d)(1), which allows a defendant to withdraw his guilty plea for any reason if he does so before the court accepts his plea. The district court denied Andrews's motion, finding that it had accepted his guilty plea at the hearing. And after a court accepts a defendant's guilty plea, he can only withdraw it if he proves a fair and just reason for doing so under Rule 11(d)(2)(B). The district court held that Andrews failed to demonstrate a fair and just reason why his plea should be withdrawn, and it ultimately imposed the terms of the plea agreement.

Andrews appealed, claiming that the district court never actually accepted his guilty plea during the hearing and that he therefore should have been able to withdraw his plea for any reason under Rule 11(d)(1).

The Sixth Circuit first addressed which standard of review it should use to decide whether the district court had accepted Andrews's guilty plea. Since the issue was one of first impression in the Sixth Circuit, the Court surveyed the opinions of other circuit courts and found that at least three (the Eighth, Fifth, and D.C. Circuits) use the de novo standard of review for this issue. Additionally, the Court reasoned that this issue presents no factual disputes, and the only question is whether the district court's words and actions during the hearing fit the definition of acceptance as used in Rule 11(d). Therefore, the Sixth Circuit held that the issue whether a guilty plea was accepted by a district court is a question of law subject to de novo review.

The Sixth Circuit then analyzed under what circumstances a district court has accepted a defendant's guilty plea, which was also an issue of first impression in this circuit. Rule 11(b) provides an enumerated list of topics that a district court must discuss with the defendant before it may accept his guilty plea. However, there are no rules that specifically state what a court must do to officially accept the plea. The Sixth Circuit found that there was a consensus among other circuits that a district court's adherence to Rule 11(b) creates a presumption that the court accepted the defendant's guilty plea. But this presumption is rebutted when the district court explicitly decides to defer its acceptance of the plea. Following the other circuits' reasoning, the Sixth Circuit ultimately held that a district court's explicit deferral of acceptance means that a defendant's guilty plea has not been accepted under Rule 11(d). However, the Court declined to establish any specific steps that a district court must take to officially accept a guilty plea.

In Andrews's case, the district court had properly covered all the information required by Rule 11(b), creating a presumption of acceptance. But the district court's statements that it would have to hold a second hearing after it had received the presentence report meant that an additional step must occur before the district court would accept Andrews's guilty plea and impose the recommended sentence. The Sixth Circuit found that this constituted an explicit deferral of acceptance, meaning that the district court had not accepted Andrews's plea for Rule 11(d) purposes at the hearing. And since the district court had not accepted Andrews's guilty plea at the hearing, he had the right to withdraw his plea for any reason when he filed his withdrawal motion. The Sixth Circuit therefore remanded the case back to the district court and declined to rule on the other collateral issues Andrews had raised.

Panel: Circuit Judges Martha Craig Daughtrey, Karen Nelson Moore, and Julia Smith Gibbons.

Date of issued opinion: May 23, 2017.

Docket number: 16-3130

Decided: Reversed and remanded.

Counsel: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

Author of opinion: Circuit Judge Julia Smith Gibbons.

Case alert author: Andrea Muroto Bilabaye, Western Michigan University Cooley Law School.

Case alert circuit supervisor: Professor Mark Cooney.

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/17a0109p-06.pdf

Edited: 06/27/2017 at 11:23 AM by Mark Cooney

    Posted By: Mark Cooney @ 06/22/2017 03:07 PM     6th Circuit     Comments (0)  

May 2, 2017
  Luis Antonio Dutton-Myrie v. the Attorney General of the United States of America - Third Circuit
Headline: Third Circuit Requires Review of Willful Blindness in CAT Analysis Regarding Acquiescence to Torture

Area of Law: Convention Against Torture, Acquiescence

Issues Presented: What standard should the Board of Immigration Appeals use in assessing acquiescence to torture under the Convention Against Torture?

Brief Summary:

Dutton-Myrie appealed a decision from the Board of Immigration Appeals ("BIA") which dismissed his claim that the Panamanian government was willfully blind to torturous acts against him. The Third Circuit found that the BIA did not thoroughly review the circumstantial evidence or the potential for willful blindness de novo in its ruling. The Third Circuit remanded with instructions to consider circumstantial evidence that may establish willful blindness.

Extended Summary:

Luis Antonio Dutton-Myrie petitioned for review of a ruling by the Board of Immigration Appeals ("BIA") dismissing his appeal of the decision by an Immigration Judge ("IJ") that he is ineligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Dutton-Myrie contends that the BIA erred in affirming the IJ's conclusion that the government of Panama would not be willfully blind to torturous acts against him and incorrectly stated what constitutes acquiescence to torture by Panamanian officials. In addition, Dutton-Myrie contends that the IJ is biased against him and violated his due process rights. The Third Circuit found that the Board did not apply the correct legal standard under the Convention Against Torture ("CAT") and remanded.

Dutton-Myrie is a citizen of Panama who came to the US on a visitor's visa in 1991 and overstayed that visa. In 2005, the Government apprehended and deported him to Panama. A few days after his return to Panama, a group of men stabbed him in the neck so he fled the country and re-entered the US. In 2007, the Government apprehended him again and charged him with illegal re-entry. In 2012, the US Department of Homeland Security reinstated the final order of removal but an asylum officer found he expressed a reasonable fear of returning to Panama and referred him to an IJ. Dutton-Myrie filed an application for deferral of removal under the CAT based on his claim that members of the Mara Salvatrucha ("MS-13") gang would likely torture him if he returned. Dutton-Myrie's close relatives started a gang in Panama and many of his male family members have been targeted and killed by MS-13.

The IJ found Dutton-Myrie to be credible but determined that he failed to establish that Panamanian officials would consent or acquiescence to the harm he feared and denied his CAT claim. Dutton-Myrie went before the same IJ four times, and appealed four times. The BIA vacated and remanded the first three times but affirmed the fourth decision. The Third Circuit first turned to the Convention Against Torture and noted the burden of proof is on the petitioner to produce evidence that it is more likely than not that he or she would be tortured. To establish acquiescence, an applicant must demonstrate that a public official was aware of the torture and breached the legal responsibility to intervene and prevent it, which can also be shown if the government willfully blinded itself to such activities.

The Third Circuit reviewed Dutton-Myrie's claim that the BIA erred in reviewing for clear error the IJ's conclusion that the Panamanian government would not acquiesce to torture. The IJ must conduct a two-part analysis. First, the IJ makes a factual finding as to how the public officials will act in response to the harm the petitioner fears. Next, the IJ assesses whether the likely response from public officials qualifies as acquiescence. The BIA should review the first part for clear error, but must review the second part de novo. The BIA found no clear error in the IJ's finding that the government of Panama would not be acquiescent to any torture but it should have also determined de novo whether the evidentiary findings were sufficient to establish acquiescence. The BIA should have considered willful blindness before concluding the government conduct would not qualify as acquiescence.

The BIA must consider circumstantial evidence of willful blindness. The BIA needs to consider relevant evidence to determine if harm Dutton-Myrie fears will be met with a "blind eye" by authorities. The regulations do not require actual knowledge of specific torturous acts. The Third Circuit remanded with instructions to consider circumstantial evidence that may establish willful blindness. The Third Circuit did not comment on the due process claim but noted the case "may be ripe for reassignment [to a different IJ]if further fact-finding is necessary."

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/161599p.pdf

Panel: Ambro, Chagares, and Fuentes, Circuit Judges

Argument Date: November 16, 2016

Date of Issued Opinion: April 28, 2017

Docket Number: No. 16-1599

Decided: Remanded

Case Alert Author: Jessica Wood

Counsel:

Nathanael P. Kibler (argued), Counsel for Petitioner

Benjamin C. Mizer, Bernard A. Joseph, Jason Wisecup, Erica B. Miles, Counsel for Respondent

Author of Opinion: Ambro, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/02/2017 04:06 PM     3rd Circuit     Comments (0)  

April 28, 2017
  Hargett v. St. Bernard's Hospital, Inc. - Eighth Circuit
Headline Eighth Circuit holds that district court improperly remanded class action lawsuit to state court based on class members' Arkansas residency rather than citizenship

Area of Law Class Action; Federal Jurisdiction

Issue(s) Presented Whether the district court properly remanded a class action lawsuit that had been removed to federal court based on the local controversy exception to the Class Action Fairness Act.

Brief Summary Plaintiff Tammy Hargett filed a class action lawsuit in Arkansas state court on behalf of a class comprising "all persons who were Arkansas Medicaid-eligible beneficiaries" who were treated at one of the defendant hospitals and had liens placed on their third-party claims by RevClaims, LLC. The defendant hospitals removed the suit to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), which broadened federal jurisdiction over class actions. Hargett moved to remand, arguing that the district court should decline to exercise jurisdiction under CAFA's local-controversy exception, which applies when more than two-thirds of the class members are "citizens of the State in which the original action was filed." Id. at § 1332(d)(4)(A)(i)(I) (emphasis added). The district court granted the motion to remand, finding that the proposed class was defined as "all persons who were Arkansas residents at the time the medical services . . . were provided to them."

RevClaim and the hospitals appealed. The Eighth Circuit focused its analysis on how the "resident" versus "citizen" distinction made in other parts of CAFA applied specifically to the local-controversy exception. The Court noted that elsewhere in the statute, the term "citizen" has long meant something different from "resident." "Citizen" requires permanence, whereas residency is a more fluid concept. One person can be a resident of multiple states, but can only be a citizen of one. Where Congress uses a term, such as "citizen," that has a well-established meaning, it must be assumed that Congress meant to incorporate the established meaning. Thus, by using the term "citizen" in the local-controversy exception, Congress meant to require something more than simply residency in a state. The Seventh Circuit has also explicitly recognized the distinction between residency and citizenship for purposes of the local-controversy exception. Ultimately, the Eighth Circuit agreed with the Seventh Circuit, and concluded that "citizen" is not synonymous with "resident" in determining whether the local-controversy applies. As such, the district court erred in holding that merely alleging a proposed class of Arkansas residents was sufficient to satisfy § 1334(d)(4), and should not have remanded the case to state court.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/04/171339P.pdf

Panel Circuit Judges Bowman, Shepherd, and Smith

Date of Issued Opinion April 14, 2017

Decided Reversed and remanded

Docket Number 17-1339

Counsel Kenneth P. Castleberry, Robert L. Henry III, James D. Robertson, A.F. Thompson, III, Paul Waddell, and Sam Waddell for Appellants and Brandon W. Lacy for Appellee

Author Circuit Judge Smith

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/28/2017 02:57 PM     8th Circuit     Comments (0)  

  Melin v. Sveen - Eighth Circuit
Headline Eighth Circuit holds that Minnesota's revocation-upon-divorce statute is unconstitutional when applied retroactively to life insurance policies

Area of Law Insurance

Issue(s) Presented Whether the district court properly awarded life insurance proceeds to the decedent's children by retroactively applying Minnesota's revocation-upon-divorce statute to the decedent's policy naming his former spouse as the primary beneficiary.

Brief Summary In 1997, the decedent, Mark Sveen, married the appellant, Kaye Melin, and named her the primary beneficiary of his life insurance policy the following year. His two adult children, the appellees, were designated as contingent beneficiaries. Sveen and Melin divorced in 2007, and Sveen never changed the beneficiary designation on the policy. Sveen passed away in 2011, with Melin still listed as the primary beneficiary.

Upon Sveen's death, the insurance company filed an interpleader action to determine whether a 2002 amendment to Minnesota's probate code applied the revocation-upon-divorce statute to life insurance designations made prior to the statute's amendment. Melin and Sveen's two adult children cross-claimed for the proceeds. The district court granted summary judgment for Sveen's children.

On appeal, a panel of the Eighth Circuit reversed. The Court first held that Melin had standing to assert a constitutional challenge to the revocation-upon-divorce statute. The Court then relied on a prior Eighth Circuit panel decision holding that Oklahoma's revocation-upon-divorce statute violated the Contract Clause of the Constitution when applied retroactively to reach the same conclusion with respect to the Minnesota statute. The Court held that retroactive application of revocation-upon-divorce statutes is unconstitutional because policyholders have the right to rely on the law governing insurance contracts at the time the contract was made, and applying the statute would directly alter the rights and obligations of the contracting parties.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/04/161172P.pdf

Panel Circuit Judges Benton and Shepherd, and District Judge Ebinger, sitting by designation

Date of Issued Opinion April 3, 2017

Decided Reversed and remanded

Docket Number 16-1172

Counsel Scott A. Wilson for Appellant and Daniel P. Doda for Appellees

Author Circuit Judge Benton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/28/2017 01:57 PM     8th Circuit     Comments (0)  

April 24, 2017
  National Labor Relations Board v. Pier Sixty, LLC - Second Circuit
Headline: Second Circuit Grants Enforces National Labor Relations Board Order Protecting Employee From Firing, Finding Employee's Facebook Post Prior to Election to Unionize Was Not So "Opprobrious" as to Warrant Losing National Labor Relations Act Protection

Area of Law: Labor Law

Issues Presented: Whether an employee's comments on social media, that lead to his firing, were so "opprobrious" as to lose protection under the National Labor Relations Act.

Brief Summary: In October 2011, two days before a tense election to unionize Respondent and Cross-Petitioner Pier Sixty, a New York catering company, one of its service employees, Petitioner and Cross-Respondent Hernan Perez, posted a message on his Facebook page using profanity about his Pier Sixty supervisor, and his supervisor's family, and encouraging employees to vote yes for the union. Perez took down the post three days later but it had already come to the attention of Pier Sixty management which, following an investigation, fired Perez in early November. Mr. Perez filed a charge with the National Labor Relations Board (NLRB) claiming he had been terminated in retaliation for "protected concerted activities" under the National Labor Relations Act (NLRA).

Following a decision by the Administrative Law Judge, the NLRB found that Mr. Perez's activity was protected under NLRA sections 8(a)(1) and (a)(3) and his termination was in retaliation for "protected concerted activities." The Second Circuit affirmed, holding that viewing the "totality of the circumstances," including Pier Sixty's "hostility towards employees' union activities" prior to and around the time of the post, and Pier Sixty's historical general tolerance of profanity by its employers, Perez's post "not so egregious as to lose" NLRA protection. The Second Circuit also held that Pier Sixty could not challenge the enforcement of the NLRB's decision on the basis that the Acting General Counsel of the NLRB was in violation of the Federal Vacancies Report Act because the employer never presented this issue to the NLRB, as required by Section 10(e) of the NLRA.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...66497/1/hilite/


Extended Summary: Respondent and Cross-Petitioner Pier Sixty, LLC ("Pier Sixty") is a catering company in New York. Following a contentious lead up to the election between management and its employees, Pier Sixty's service employees voted to unionize in October 2011. Two days before the election, while on an authorized break at work, Pier Sixty employee, Petitioner and Cross-Respondent Hernan Perez, posted on his personal Facebook account using profanity in talking about his supervisor and supervisor's family. His post also stated "vote YES for the union!!!!!!!" Perez took down the post three days later but it had already come to the attention of Pier Sixty management which, following an investigation, fired Perez in early November.

Perez filed a charge with the National Labor Relations Board ("NLRB") alleging that he had been terminated in retaliation for "protected concerted activities" in violation of the National Labor Relations Act ("NLRA"). That charge was subsequently consolidated with a second charge alleging unfair labor practices under the NLRA. The Administrative Law Judge ("ALJ") who heard the matter found that Pier Sixty violated the NLRA by discharging Perez in retaliation for a protected activity under Act sections 8(a)(1) and (a)(3). Pier Sixty filed exceptions, a three-member panel of the NLRB affirmed the ALJ decision, and Pier Sixty appealed.

As an initial matter, the Second Circuit rejected Pier Sixty's contention that the Acting General Counsel of the NLRB, Lafe Solomon, was in violation of the Federal Vacancies Report Act ("FVRA") of 1998, 5 U.S.C. § 3345, and therefore his signing of the complaint in this case rendered the NLRB decision unenforceable. Pursuant to Section 10(e) of the NLRA, all objections must be considered by the NLRB before appeal, unless the failure to do so is excused by extraordinary circumstances. In this instance, Pier Sixty had failed to raise this argument before the NLRB and Second Circuit held that no extraordinary circumstances existed to excuse that failure, stating that a potential meritorious claim does not alone create an extraordinary circumstance.

The Second Circuit next examined whether Perez's activity was protected under the NLRA. Section 7 of this NLRA guarantees employees the right "to engage in concerned activities for the purpose of collective bargaining or other mutual aid or protection." These rights are protected by Sections 8(a)(1) and (a)(3) of the NLRA, which prohibit an employer from discharging employees for participating in protected, union-related activity under Section 7. However, the NLRA will not protect against an employee engaged in an ostensibly protected activity if that employees acts in an abusive manner.

Noting that substantial deference must be given to the NLRB decision, the Second Circuit examined, without endorsing, the nine-factor totality of the circumstances applied by the NLRB test to determine whether Mr. Perez's Facebook post was protected under the NLRA. The Second Circuit thus examined: (1) any evidence of anti-union hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense.

The Second Circuit affirmed, holding that the NLRB's decision that Perez's activity was protected under the NLRA was supported by the evidence. In so holding the court noted that Perez's Facebook post included work place concerns, that Pier Sixty had demonstrated hostility towards its employees' union activities immediately prior to Perez's Facebook post, and Perez's Facebook post explicitly protested mistreatment by management and asked employees to vote yes for the union. On this basis, the Second Circuit found, the NLRB reasonably determined that Perez's outburst was not "an idiosyncratic reaction to a manger's request but part of a tense debate over managerial mistreatment in the period before the representation election." The Second Circuit also noted that Pier Sixty consistently tolerated profanity among its workers with few disciplinary sanctions given for the use of profanity, that Perez's comments were made on an online forum, a key medium and tool for worker organization, and that Perez's outburst was not in the immediate presence of customers and did not disrupt any catering event. Accordingly, the Second Circuit held that the NLRB did not err in ruling that Perez's Facebook post was not so egregious as to exceed the NLRA's protection and was reasonably distinguished from other cases of "opprobrious conduct."

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...66497/1/hilite/


Panel: Circuit Judges Kearse, Cabranes, and Chin

Argument Date: 4/5/2016

Date of Issued Opinion: 4/21/2017

Docket Numbers:
15-1841-ag(L), 15-1962-ag(XAP)

Decided: Granted the Board's application for enforcement; Denied Pier Sixty's cross-petition for review

Case Alert Author:
Leigh G. Wellington

Counsel: Thomas V. Walsh, Jackson Lewis P.C., for Respondent - Cross-Petitioner; Benjamin M. Shultz and Scott R. McIntosh for Benjamin C. Mizer, Principal Deputy Assistant Attorney General, U.S. Department of Justice, Civil Division, Amy H. Ginn, Attorney (Jennifer Abruzzo, Deputy General Counsel; John H. Ferguson, Associate General Counsel; Usha Dheena, Supervisor Attorney) for Richard F. Griffin, Jr., General Counsel, National Labor Relations Board, for Petitioner - Cross-Respondent

Author of Opinion:
Circuit Judge Cabranes

Circuit:
Second Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond

    Posted By: Elyse Diamond @ 04/24/2017 08:52 AM     2nd Circuit     Comments (0)  

April 20, 2017
  Mahmood v. Sessions -- Fourth Circuit
Immigration Status Clarified: Lawful Permanent Residents Don't Retain Asylum Status

Areas of Law: Immigration Law, Statutory Interpretation, Administrative Law

Issue Presented: Whether the Board of Immigration Appeals erred in finding that an alien who voluntarily adjusts his status from asylee to lawful permanent resident no longer retains his asylee status.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the Board of Immigration Appeals' ("BIA") decision to uphold an immigration judge's order to remove lawful permanent resident Riaz Mahmood from the United States after he deliberately misrepresented material facts to obtain travel documents. The court held that the BIA's interpretation of 8 U.S.C. §1159(b) - that aliens who adjust to lawful permanent resident status under the statue do not retain their asylum status - was the best interpretation of the statute. The Fourth Circuit also determined that the BIA's decision was entitled to deference under Chevron USA Inc. v. Natural Resources Defense Council, Inc. Accordingly, the court denied Mahmood's petition for review.

Extended Summary:
Riaz Mahmood, a native and citizen of Pakistan, was granted asylum in the United States in 1997. In 2006, he applied for a refugee travel document to visit his wife and children in Bangkok, Thailand. In his application, he indicated that since being granted asylum, he had not returned to Pakistan nor "applied for and/or obtained a national passport, passport renewal, or entry permit" from Pakistan. This was not true; Mahmood left the U.S. in 2003 using a Pakistani passport and reentered the U.S. in 2005 using a U.S. visa. The U.S. Department of Homeland Security ("DHS") was unaware of this fact and granted Mahmood's refugee travel document application in 2006. He left the U.S. in 2007 again using a Pakistani passport (with a different number than the one he used in 2003) and returned in 2007 using his U.S.-issued refugee travel document. In late 2007, Mahmood applied for a second refugee travel document to visit his wife and children and again denied having returned to Pakistan or obtained or renewed a Pakistani passport. While this second application was pending, Mahmood used a Pakistani passport to leave the country and used the second refugee travel document, which had by then been granted, to reenter the U.S. In 2009, Mahmood left the U.S. for a fourth time using a Pakistani passport with a third number. He claimed that he traveled to Dubai, where he met his wife and children. After meeting them, he claimed they flew to Russia, Cuba, and then Mexico. Once in Mexico, he said he intended to cross the border with his family "because their lives were in danger in Pakistan" and he intended to have them apply for asylum. Mahmood and his family were apprehended after crossing into the U.S. and, in August 2009, DHS charged Mahmood with removability on the ground that he entered the U.S. without inspection.

While that removability charge was pending, Mahmood filed a Form I-485 application to adjust his status from asylee to lawful permanent resident pursuant to 8 U.S.C. §1159(b). In his application, Mahmood certified under penalty of perjury that he "never by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, or other documents, entry into the United States, or any immigration benefit." He also certified that he never knowingly aided an alien in trying to enter the U.S. illegally. While his form I-485 application was pending, DHS dropped the illegal entry charge against Mahmood and granted his application for adjustment to the status of lawful permanent resident in 2012. In 2013, DHS commenced a removal proceeding against Mahmood alleging that he tried to procure an immigration benefit through fraud and willful misrepresentation, which made him inadmissible at the time of his application for adjustment and removable. An immigration judge held a removal hearing and found that DHS proved by clear and convincing evidence that Mahmood fraudulently obtained his lawful permanent resident status and two refugee travel documents. Additionally, the judge found that Mahmood was ineligible for a waiver of inadmissibility under 8 U.S.C. §1159(c) and ordered that Mahmood be removed to Pakistan.

Mahmood appealed the immigration judge's decision to the BIA arguing that: (1) the immigration judge erred in denying his application for waiver of inadmissibility; and (2) since he retained his asylum status after his adjustment to lawful permanent resident status, the judge erred in ordering his removal without first conducting an asylum termination proceeding under 8 U.S.C. §1158(c). Relying on its decision in Matter of C-J-H, 26 I. & N. Dec. 284, wherein it concluded that "aliens whose status was adjusted from asylee to lawful permanent resident no longer qualif[ied] as asylees," the BIA found it was proper for the immigration judge to order Mahmood's removal without first conducting an asylum proceeding. As a result, the BIA rejected Mahmood's arguments and dismissed his appeal. Mahmood subsequently filed a petition of review to the Fourth Circuit.

The Fourth Circuit found that Mahmood no longer retained the status of an "alien granted asylum" after he adjusted his status to lawful permanent resident. Therefore, he was subject to removal for procuring any immigration benefit by fraud or willful misrepresentation of a material fact. First, the court looked to the language of §1159(b), which states that "'the Secretary of Homeland Security or the Attorney General . . . may,' upon application of the alien and satisfaction of specified statutory conditions, 'adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum.'" The court found the language of the statute contemplated two statuses: (1) as an "alien granted asylum;" and (2) an alien "lawfully admitted for permanent residence." Moreover, the statute provides for the adjustment from one status to the other, which, to the court, indicated a change to the other status and not an "accretion" of a second status. As a result, the court found that Mahmood no longer held the status of an asylee and was thus subject to removal for procuring an immigration benefit by fraud.

Mahmood also argued that since he was an asylee at the time he adjusted his status, the court needed to focus on §1158(c)(2)'s restriction on the removal of asylees. Under this provision, the Attorney General can only terminate asylum status for five listed reasons, none of which includes adjustment of status under §1159(b). Additionally, he argued, even if he could be removed, his adjustment of status could not substitute for a formal termination of his asylum status under §1158(c). The Fourth Circuit found Mahmood's argument unpersuasive because it equated voluntarily surrendering his asylum status by adjusting it under §1159(b) with the involuntary loss of asylum status through the Attorney General's termination of it under §1158(c). The court found that the two were not the same because §1158 protects an asylee from having his status terminated against his will, while §1159 allows an asylee to voluntarily give up his asylum status in favor of lawful permanent resident status. The court found that the most reasonable reading of §1159 led to the conclusion that once an asylee adjusts his status to lawful permanent resident, the alien is then fully considered a lawful permanent resident and not an asylee.

The court did find Mahmood's interpretation at least plausible, which suggested some ambiguity in the statute. Nevertheless, even under the assumption that the statute was ambiguous, the court found the BIA's interpretation of the Immigration and Naturalization Act ("INA") was entitled to Chevron deference. When the issue is whether the BIA correctly interpreted the INA statute, Chevron deference applies since the BIA is responsible for administering the statute. If the statute is ambiguous, the court must defer to the BIA's permissible construction of the ambiguity through its published decisions. The court noted that the BIA's interpretation controls unless it reaches a conclusion that is "arbitrary, capricious, or manifestly contrary to the statute." Here, since the BIA relied on its precedential decision in Matter of C-J-H, the Fourth Circuit found that the BIA reached a reasonable conclusion and its reading of §1159 was not arbitrary or contrary to the statute. Therefore, the Fourth Circuit affirmed the BIA's holding that Mahmood was no longer an asylee and thus was no longer afforded the protections of an asylee.

To read the full opinion, click here.

Panel: Judges Niemeyer, Traxler, and Diaz

Argument Date: 01/24/2017

Date of Issued Opinion: 02/22/2017

Docket Number: 16-1438

Decided: Petition denied by published opinion.

Case Alert Author: Lauren Harrison, Univ. of Maryland Carey School of Law

Counsel: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND HELMS, LLC, Charleston, South Carolina, for Petitioner. Tiffany L. Walters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Circuit Judge Niemeyer

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/20/2017 09:19 AM     4th Circuit     Comments (0)  

April 18, 2017
  Zarda v. Altitude Express
Case Name: Zarda, et al. v. Altitude Express

Headline: Second Circuit Declines to Reverse Past Precedent That Title VII Does Not Cover Sexual Orientation Discrimination, Stating That Such Reversal Can Only be Done by En Banc Court

Area of Law: Employment Discrimination

Issue(s) Presented: Whether a three-judge panel of the Second Circuit can overturn the circuit's previous holding that Title VII does not cover employment discrimination based on sexual orientation.

Brief Summary: Donald Zarda filed suit against his former employer, Altitude Express, alleging that he had been terminated due to his sexual orientation, in violation of the New York State Human Rights Law and Title VII. Defendant successfully moved for summary judgment on the Title VII claim, on the basis that the Second Circuit's 2000 decision in Simonton v. Runyon had held that Title VII's prohibition of sex discrimination did not encompass sexual orientation discrimination. Plaintiff appealed, arguing that the Second Circuit should overturn Simonton and find that discrimination on the basis of sexual orientation constitutes impermissible sex discrimination under Title VII. Noting the recent decision in Christiansen v. Omnicom Group, Inc., which confronted a similar issue, the Second Circuit held that only the circuit sitting en banc may overturn Simonton. The Court further noted that the Court of Appeals for the Seventh Circuit - the only circuit so far to have overturned similar precedent and find that Title VII does prohibit discrimination on the basis of sexual orientation - did so sitting en banc when it decided Hively v. Ivty Tech Comm. Coll. earlier this month.

Extended Summary (if applicable):

Altitude Express, defendant, employed Donald Zarda,* plaintiff, as a skydiving instructor. In 2010, Mr. Zarda served as a skydiving instructor for the female partner of a heterosexual couple. Mr. Zarda dove in-tandem with the female partner, and informed her that he was gay to mitigate the awkwardness that might arise from a woman being so tightly strapped to a man. When she and her boyfriend compared notes, and she disclosed that Mr. Zarda had informed her that he was gay, the male partner called and complained about Mr. Zarda's behavior. Altitude Express fired him soon thereafter.

Mr. Zarda filed a wrongful termination suit under the New York State Human Rights Law, N.Y. Exec. Law. § 296(1)(a) ("NYSHRL"), and under Title VII. Altitude Express moved for summary judgment on the Title VII claim on the basis that the Second Circuit had held, in a 2000 case called Simonton v. Runton, that Title VII does not bar discrimination on the basis of sexual orientation. The District Court granted the defendant's motion but let the NYSHRL claim proceed to trial. While the case was pending in 2015, the Equal Employment Opportunity Commission (EEOC) issued a decision stating that discrimination on the basis of sexual orientation amounts to sex discrimination in violation of Title VII. Mr. Zarda moved the court to reconsider its summary judgment dismissal of his Title VII claim, in light of the EEOC's position, but the district court declined due to the Second Circuit's precedent in Simonton. Thus, only Mr. Zarda's state law discrimination claim - which requires a stronger showing of causation than Title VII requires - went to trial, and a jury ruled against him. He appealed to the Second Circuit, on the basis, inter alia, that it should overturn Simonton and find that Title VII prohibits discrimination on the basis of sexual orientation.

The defendant argued that the Court need not revisit this issue because a jury had found against the plaintiff on the state law claim. The Second Circuit rejected this argument, explaining that the District Court had instructed the jury to use "but-for" causation for the state law claim, which is a more difficult standard than the "substantial" or "motivating" factor test utilized by Title VII. Hence, had there been an actionable claim available to the plaintiff under Title VII, it could have been more easily won. However, the court held that as a three-judge panel, it could not reverse Simonton, reaffirming its recent holding in Christiansen v. Omnicom Group, Inc. that only the Court sitting en banc could overturn the prior precedent established in Simonton. Further, the Second Circuit, citing Hively v. Ivty Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1 - 2 (7th Cir. Apr. 4, 2017) (en banc), noted that the Seventh Circuit Court of Appeals only overturned its prior analogous precedent regarding Title VII's coverage of sexual orientation discrimination by sitting en banc. Accordingly, the Second Circuit affirmed the district court's dismissal of Mr. Zarda's Title VII claim.

*As the Court notes in fn. 1, Mr. Zarda died in a skydiving accident prior to going to trial, and the case proceeded with the two executors of his estate replacing him as plaintiff.

To read the full decision, please visit: http://www.ca2.uscourts.gov/de...bdcbd/1/hilite/


Panel: Circuit Judges Dennis G. Jacobs, Robert D. Sack, Gerard E. Lynch.

Argument Date: January 5, 2017

Argument Location: New York, NY

Date of Issued Opinion: April 18, 2017

Docket Number:
No. 15-3775

Decided: Affirmed

Case Alert Author: Vito J. Marzano

Counsel: Gregory Antollino and Stephen Bergstein for Appellants; Saul D. Zabell for Appellees.

Author of Opinion: Per Curiam

Circuit: Second Circuit Court of Appeals.

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 04/18/2017 08:32 PM     2nd Circuit     Comments (0)  

April 13, 2017
  Loftus v. Bobzien -- Fourth Circuit
Lawyer-Legislator? Nope. Fourth Circuit Upholds Firing of Assistant County Attorney Elected to Fairfax City Council

Areas of Law: First Amendment, Employment Law

Issue Presented: Whether the Fairfax County Attorney's Office's termination of an assistant county attorney following her election to the Fairfax City Council violated the First Amendment.

Brief Summary
: The United States Court of Appeals for the Fourth Circuit held that the termination of the plaintiff's employment did not violate the First Amendment for two reasons. First, as the Supreme Court has made clear, public employers may bar their employees from running for elective office. Accordingly, it follows that a public employee can be barred from holding elective office while a public employee. Second, if the resign-to-run and automatic resignation provisions of the Texas Constitution - which stripped certain public employees of their office upon declaring their candidacy for the state's legislature - survived First Amendment scrutiny in Clements v. Fashing, 457 U.S. 957, 971-73 (1982), the termination of the plaintiff's employment only after her election to the City Council should too. In addition, the Fourth Circuit held that the plaintiff's state law claim failed because the cited statutes do not create a private cause of action. Therefore, the Fourth Circuit affirmed the district court's dismissal of the First Amendment and state law claims.

Extended Summary: From 1997 until her termination in 2014, Nancy Loftus was employed by the Fairfax County Attorney's Office in Virginia as an assistant county attorney. In February 2014, Loftus told David Bobzien, the County Attorney for Fairfax County, that she was considering a run for the Fairfax City Council in the next election. Bobzien expressed his concern that Loftus' election might conflict with her responsibilities as an assistant county attorney because of ongoing business, contractual, and governmental relationships between Fairfax County (the "County") and Fairfax City (the "City").

Bobzien expressed his concerns again after Loftus became an official candidate for the City Council. Bobzien emphasized that if elected, Loftus' conflict of interest would prevent all of the County's attorneys from representing the County not only in court proceedings adverse to the City but also in civil matters. Bobzien cautioned Loftus that if she was elected to the City Council she would not be able to continue her employment with the County Attorney's Office. Nevertheless, Loftus proceeded with her candidacy, was elected to the City Council in May 2014, and was sworn in on June 24, 2014. Thereafter, Bobzien terminated Loftus's employment with Fairfax County.

After exhausting her administrative remedies, Loftus filed a lawsuit against Bobzien and the County Executive in the district court. Loftus alleged that her termination was solely because she had been elected to the City Council and was retaliatory, in violation of her First Amendment right to hold elected office. In addition, Loftus alleged that her termination violated Virginia Code § 15.2-1512.2 and Fairfax County Ordinance § 3-1-19, both of which secure a public employee's right to participate in certain "political activities." Loftus sought declaratory and injunctive relief, as well as $6,000,000 in damages.

The district court dismissed Loftus's complaint for failure to state a claim. As to her First Amendment claim, the district court ruled that Loftus's termination, which was due to a perceived conflict of interest, did not violate her First Amendment rights. As to her state law claim, the district court concluded that neither Virginia Code § 15.2-1512.2 nor Fairfax County Ordinance § 3-1-19 created a private cause of action.

As to the First Amendment claim, the Fourth Circuit first noted that, although it had never recognized a First Amendment right to hold elected office, it need not decide whether such a right existed to resolve the case. Citing the Supreme Court's decision in United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 99 (1947), the Fourth Circuit found that public employers may permissibly bar their employees from participating in a wide array of political activities, including running for elective office. "If a public employee can be prohibited from running for office," the court observed, "it follows all the more strongly that she also can be barred from holding elective office while remaining a public employee."

To further support its conclusion, the Fourth Circuit cited the Supreme Court's decision in Clements v. Fashing, 457 U.S. 957, 971-73 (1982). In Clements, the Court upheld two provisions of the Texas Constitution, one of which barred elected judicial officers from seeking election to the state's legislature during his or her term (the "resign-to-run provision"). By operation of the second provision, any elected judicial officer who declared his or her candidacy for the legislature was automatically deemed to resign from the office then held (the "automatic resignation provision"). The Fourth Circuit found that if the resign-to-run and automatic resignation provisions in Clements - which applied upon the declaration of a candidacy - survived First Amendment scrutiny, the termination of Loftus' employment only after her election to the City Council should, too. Therefore, the Fourth Circuit held that Loftus' termination of employment did not violate the First Amendment.

As to the state law claim, the Fourth Circuit found that under their plain terms, neither Virginia Code § 15.2-1512.2 nor Fairfax County Ordinance § 3-1-19 create a private cause of action. Thus, the court lacked the authority to create a right under a state statute where the state's legislature had elected not to include that right. Accordingly, the Fourth Circuit affirmed the district court's dismissal of both the First Amendment claim and the state claim.

To read the full opinion, click here.

Panel: Judges Agee, Diaz, and Thacker

Argument Date: 10/25/2016

Date of Issued Opinion: 02/08/2017

Docket Number: No. 15-2164

Decided: Affirmed by published opinion

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: ARGUED: John Chapman Petersen, SUROVELL ISAACS PETERSEN & LEVY PLC, Fairfax, Virginia, for Appellant. Sona Rewari, HUNTON & WILLIAMS LLP, McLean, Virginia, for Appellees. ON BRIEF: Jason Frank Zellman, SUROVELL ISAACS PETERSEN & LEVY PLC, Fairfax, Virginia, for Appellant.

Author of Opinion: Circuit Judge Agee

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/13/2017 04:28 PM     4th Circuit     Comments (0)  

April 12, 2017
  Revock v. Cowpet Bay West Condominium Association - Third Circuit
Headline: Third Circuit Holds that Fair Housing Act Claims Survive the Death of a Party, and Reverses District Court's Grant of Summary of Judgment

Area of Law: Fair Housing Act, Statutory Interpretation

Issue(s) Presented: (1) Whether a Fair Housing Act claim survives the death of a party; (2) Whether the district court properly dismissed Walters' Fair Housing Act claims entirely due to her death; (3) Whether the district court properly denied Kromenhoek's Fair Housing Act claims on the merits.

Brief Summary: Appellants Barbara Walters and Judith Kromenhoek filed civil rights actions under the Fair Housing Act. Walters and Kromenhoek sought accommodations for their disabilities in the form of emotional support animals, which were not permitted under the rules of their condominium association. They alleged violations of their right to a reasonable accommodation of their disabilities and interference with the exercise of their fair housing rights. Among other issues, these cases raised the question of whether a Fair Housing Act claim survives the death of a party. The Third Circuit held that the district court improperly answered this question by applying a limited gap-filler statute and, in turn, territorial law. It then concluded that the survival of claims under the Fair Housing Act is not governed by the gap-filler statute, but rather by federal common law, under which a Fair Housing Act claim survives the death of a party. Accordingly, it reversed the district court's grant of summary judgment against Walters' executrix. On the merits of the summary judgment motions, the Third Circuit reversed in part and vacated in part, and remanded to the district court with instructions to consider whether to permit substitution for two deceased appellees.

Extended Summary: Appellants Barbara Walters and Judith Kromenhoek suffered from disabilities, for which each was prescribed an emotional support animal. Each woman obtained a dog. This violated the "no dogs" rule of their condominium association, Cowpet Bay West. Cowpet's rule had no exceptions and Cowpet had no policy regarding assistive animals like emotional support animals. Walters and Kromenhoek each attempted to request an accommodation for an emotional support animal by filing paperwork with Cowpet's office manager. The paperwork included a doctor's letter prescribing an emotional support animal, and a dog certification. Each certification stated that the dog was "prescribed and deemed necessary to assist . . . the confirmed disabled handler" and that "property managers and landlords are required to make reasonable accommodation" under the Fair Housing Act. Certain residents at Cowpet became upset that Walters kept a dog in violation of the rule, and these views were expressed on one of the residents' online blog posts. Both Walters and Kromenhoek maintained their right to keep a dog in spite of the rule. Despite both women having submitted accommodation requests and medical verifications to Cowpet, the association and its representatives denied having reviewed the paperwork, and subsequently imposed a fine upon both Walters and Kromenhoek for violating the rule. Several months later, Cowpet's board changed presidents, and Walters and Kromenhoek again submitted accommodation requests, which were granted.

Despite being granted an accommodation, both women subsequently filed civil rights lawsuits under the Fair Housing Act, raising two federal claims: (1) that Cowpet denied their reasonable requests for accommodation in violation of the Act; and (2) that Cowpet and certain Cowpet residents interfered with the exercise of their fair housing rights in violation of the Act. While the case was pending in the district court, Walters committed suicide. The court granted the substitution of Liana Walters Revock as Walters' personal representative. Defendants moved for summary judgment. The district court dismissed Walters' Fair Housing Act claims entirely due to her death, and denied Kromenhoek's Fair Housing Act claims on the merits. Both appealed to the Third Circuit.

The Third Circuit first addressed the question of whether a Fair Housing Act claim survives the death of a party, which was an issue of first impression. The court began by explaining that the Fair Housing Act is construed broadly in light of its purpose of providing fair housing and eradicating discriminatory practices, including discrimination on the basis of disability. Because the Act is silent as to survival, the district court applied a "gap-filler statute," which in turn led it to apply territorial law. The district court applied a Virgin Islands statute under which it held that Walters' Fair Housing Act claims did not survive her death. The Third Circuit reversed the judgment of the district court on this issue, holding that the gap-filler statute does not apply to the issue of whether a Fair Housing Act claim survives the death of the party because the plain text of the statute did not apply to the Fair Housing Act. So, absent statutory guidance, the Third Circuit applied federal common law. The weight of authority as to the common law rule of survival indicates that remedial claims survive, but penal claims do not. The court explained that a Fair Housing Act claim is remedial because the Act was intended by Congress to have "broad remedial intent." Thus, under the common law rule, Fair Housing Act claims survive the death of a party, which means that Walters' claim survived her death.

Next, the court examined the merits of the first Fair Housing Act claim, considering whether Cowpet refused to provide a reasonable accommodation for Walters' and Kromenhoek's disabilities in violation of the Act. Because the court found that there were genuine issues of material fact as to this claim, it reversed the district court's grant of summary judgment for Cowpet. Specifically, Cowpet disputed the statutory requirement that there be a "refusal" to provide the reasonable accommodation. Whether there has been a refusal to provide a reasonable accommodation under the Fair Housing Act depends on the circumstances, and a refusal may be "actual or constructive." An undue delay in granting a reasonable accommodation may amount to a refusal. Moreover, a refusal occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings. The Third Circuit noted, however, that the same action might sometimes amount to a "refusal" and, at other times, mere enforcement of a housing rule. In this case, whether Cowpet's actions constituted a refusal depends upon whether Cowpet was given an opportunity to accommodate. On this issue, the parties disputed material issues of fact that precluded summary judgment.

Then, the court considered the issue of whether the Defendants interfered with Walters' and Kromenhoek's exercise of their fair housing rights in violation of the Fair Housing Act. The district court granted summary judgment for the Defendants, and the Third Circuit reversed in part and vacated in part. The Act makes it "unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed . . . any right granted or protected by" the provisions of the Act. Because the term "interference" is not defined in the Act, the court looked at its ordinary meaning, and found that interference under the Act may consist of harassment, provided that it is sufficiently severe or pervasive as to create a hostile environment. There were genuine issues of material fact that existed as to this claim, requiring the Third Circuit to reverse the district court's grants of summary judgment. The court also vacated the district court's grant of summary judgment for the former president of Cowpet's board, who had since passed away, and directed the district court on remand to determine whether to substitute a party for him.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/144776p.pdf

Panel: Fuentes, Vanaskie, and Restrepo, Circuit Judges

Argument Date: May 19, 2016

Date of Issued Opinion: March 31, 2017

Docket Number: Nos. 14-4776 & 14-4777

Decided: Reversed in part, vacated in part, remanded in part

Case Alert Author: Samuel M. Ventresca

Counsel: Karin A. Bentz, Gregory A. Thorp, Counsel for Appellants; W. Todd Boyd, James K. Parker, Jr., Yvette R. Lavelle, Joseph G. Riopelle, Carl R. Williams, John H. Benham, III, Boyd L. Sprehn, Kyle R. Waldner, Ryan C. Meade, Counsel for Appellees; Vanita Gupta, Mark L. Gross, April J. Anderson, Counsel for Amicus Appellant United States of America.

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 04/12/2017 02:50 PM     3rd Circuit     Comments (0)  

  Mirabella v. Villard - Third Circuit
Headline: No Free Speech Protection from Montgomery Township Officials' Retaliatory Email After Plaintiff Had Threatened Litigation Against Township

Area of Law: First Amendment

Issue(s) Presented: Is the right to be free from a retaliatory restriction on communication with one's government protected under the First Amendment when the plaintiff has threatened or engaged in litigation against the government? 

Brief Summary: A Montgomery Township couple received a tersely worded email in response to their informing the Township that they would be suing their neighbors and the Township for alleged environmental destruction of local public wetlands. The Third Circuit found that the local official's direction to "[p]lease never contact me" violated the couple's First Amendment rights to freedom from retaliation against exercise of free speech and to petition the government. The Township was spared by the doctrine of qualified immunity, which shields government officials from liability unless they violate clearly established rights. The Third Circuit did not find any cases clearly establishing the right to be free from a retaliatory restriction on communication with one's government when the plaintiff has threatened litigation against the government.

Extended Summary: The Mirabellas, both attorneys, complained to Montgomery Township that their neighbors allegedly extended their backyards into public Montgomery Township-owned wetlands that abut their properties by attempting to fence in the open space, placing playground equipment there, and landscaping it. Though the Township required the neighbors to remove the fence and playground equipment and stop landscaping, it ultimately allowed the neighbors to mow the open space. Viewing the Township's response as environmentally destructive, the Mirabellas emailed the Township Board of Supervisors that they intended to sue their neighbors for encroachment and destruction of the open space. In their email, the Mirabellas also claimed that the Township would be an indispensable party in the litigation, which the Board of Supervisors members Joseph Walsh and Jeffrey McDonnell took as a threat to sue the Township. The Township responded via email that it would be seeking sanctions, and Mr. Mirabella defended the lawsuit as non-frivolous. Later that night at 11:26pm, Walsh sent the following from his iPhone and copied numerous Township officials:

Dear Mr[.] Mirabella and his wife attorney. Please direct all further communications to the Township attorney. Please never contact me, the Board of Supervisors or the Township employees directly. Do not call me at work, email me at work or speak to me in public or private. The dye is caste [sic].

In response, the Mirabellas filed a lawsuit against the Township alleging violations of their First Amendment rights, specifically that the Township retaliated against them for exercising free speech rights and that the Township violated their right to petition the government. The defendants filed motions to dismiss in which they argued qualified immunity. The Third Circuit found that the Mirabellas pled both First Amendment claims based on Walsh's email but they could proceed no further. Under qualified immunity, the right to be free from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government, was not clearly established.

On the retaliation claim, the Third Circuit found Walsh's email more than just an instruction to contact the Township attorney regarding the litigation because it barred the Mirabellas from communicating directly with their local government for any reason. The Third Circuit then examined whether freedom from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government, is a clearly established right that would overcome the qualified immunity defense. Finding no support in other cases for such a right, the Third Circuit held the Township was entitled to qualified immunity.

The Mirabellas also alleged a First Amendment violation of their right to petition the government for redress of grievances based on the Walsh email. The Third Circuit found that the Mirabellas showed a burden on their free speech interests in petitioning their government that was substantially greater than the Township's litigation interests. Again, the Third Circuit found that a restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government, was not a clearly established right. A reasonable person in Walsh's position would not have known the email violated the Mirabellas' First Amendment rights. Accordingly, the Township was entitled to qualified immunity.


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153171p.pdf

Panel: Fuentes, Shwartz, and Restrepo, Circuit Judges 

Argument Date: July 12, 2016

Date of Issued Opinion: April 4, 2016

Docket Number: No. 15-3171

Decided: Reversed, in part

Case Alert Author: Rebecca Daily

Counsel: John Mirabella, Esquire, Counsel for Appellees; Harry G. Mahoney and Peter R. Kulp, Counsel for Appellants. 

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 04/12/2017 02:47 PM     3rd Circuit     Comments (0)  

April 10, 2017
  Winfred Muchira v. Halah al-Rawaf, et al. -- Fourth Circuit
Human Trafficking Claim Not Enough to Get Out of "Bad" Job

Areas of Law: Employment law

Issue Presented: Whether the plaintiff presented sufficient evidence to establish the defendants knowingly obtained her labor and services in violation of the Trafficking Victims Protection Act (TVPA).

Brief Summary: The Kenyan appellant Winfred Muchira, a contracted live-in housekeeper for a family of Saudi Arabian nationals residing in Virginia, brought suit in the United States District Court for the Eastern District of Virginia alleging that the appellees, members of that family, forced her to provide labor in violation of the TVPA. Following discovery, the district court granted summary judgment on those claims to the appellees. On appeal, the Fourth Circuit affirmed the district court's grant of summary judgment, finding that the appellant failed to present evidence sufficient to survive the motion.

Extended Summary: Winfred Muchira, a Kenyan national and the appellant, was a contracted live-in housekeeper for the appellees, all members of a Saudi Arabian family. She began working for the family in Saudi Arabia in December 2010. In July 2012 she moved with several family members to Vienna, Virginia, where some of the children would be attending school. As part of the move to the United States, the appellant agreed to a new employment contract with the family that outlined her responsibilities and those of the family. With the family's assistance, Muchira obtained a six-month visa to work for the family in the U.S. Once here, the appellant lived with the family first in her own apartment and then in her own bedroom in their Vienna house.

At the end of their initial visa period, the family extended their stay by another six months, with the understanding that they would then return to Saudi Arabia. The appellant signed a new employment contract reflecting the same, except that she would return to Kenya for a time before resuming her work with the family in Saudi Arabia. However, about two months before the appellant's scheduled departure to Kenya, she began a correspondence with the National Human Trafficking Resource Center via a hotline telephone number. She did not allege physical abuse or any other type of mistreatment, but complained about her salary and requested help in finding a way to stay in the United States with a different job. With the Hotline operator's assistance, she left the family's home in March 2013 without telling them and began cooperating with the government as they investigated the family for visa fraud.

After that criminal investigation concluded with no charges, the appellant brought a lawsuit against the appellees, alleging six claims of involuntary servitude and illegal trafficking under the TVPA, among other claims. Following discovery and a motion for summary judgment brought by the appellees, the district court granted summary judgment on all of the trafficking and involuntary servitude claims.

The appellant appealed her case to the Fourth Circuit, challenging the grant of summary judgment on her claim that she was a victim of forced labor in violation of the TVPA. Under the forced labor provision of that act, the appellant alleged that the appellees knowingly obtained her labor and services "by means of serious harm" in violation of 18 U.S.C. § 1589(a)(2) and "by means of the abuse of threatened abuse of law or legal process" in violation of 18 U.S.C. § 1589(a)(3). After reviewing the case de novo, the Fourth Circuit agreed with the district court that the appellant's evidence was insufficient to meet the statutory requirements and therefore affirmed the grant of summary judgment.

Serious harm, under the TVPA, is "any harm...that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm." 18 U.S.C. § 1589(c)(2). The only harm that the appellant alleged was psychological harm due to the cultural "house rules" that the Saudi appellees allegedly forced her to follow. The Fourth Circuit found that this argument failed for two distinct reasons: (1) there was no evidence that the appellees either knowingly or intentionally caused that harm, a requirement under this statute; and (2) the appellant was not an especially vulnerable victim that this statute is intended to protect. As the Fourth Circuit found, the appellant is an adult who consented to the employment contract with full knowledge and past experience of housekeeping with this specific family. In further support of that point, the Fourth Circuit cited other evidence in the record, including her living conditions with the family and the unfettered access they gave her to a cell phone and the internet.

The second contention brought by the appellant, abuse of the legal process, required her to show that the appellees' threatened use of the law against her was intended "to exert pressure on another person to cause that person to take some action or refrain from taking some action." 18 U.S.C. § 1589(c)(1). The appellant alleged that the family forced her to lie to the United States Embassy in order to receive her visa and then withheld her passport from her throughout her time in the United States. The Fourth Circuit again found that these arguments failed, as there was no evidence in the record that the family intended either circumstance to force the appellant to continue working for them. Additionally, the Fourth Circuit also cited evidence of Muchira's consent and acquiescence to these circumstances that made it so she could not meet the statutory requirements necessary for her claims to have merit.

To read full opinion, click here.

Panel: Judges Wilkinson, Traxler, and Hendricks (sitting by designation from the United States District Court for the District of South Carolina)

Argument Date: 10/27/2016

Date of Issued Opinion: 03/03/2017

Docket Number: No. 15-2198

Decided: Affirmed by published opinion.

Case Alert Author: Patrick J.L. Dillon, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Gregory H. Lantier, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellant. Neil Harris Koslowe, POTOMAC LAW GROUP, PLLC, Washington, D.C., for Appellees. ON BRIEF: James L. Quarles III, Robert Arcamona, Thomas G. Sprankling, WILMER CUTLER PICKERING HALE 2 AND DORR LLP, Washington, D.C., for Appellant. Galia Messika, Luisa Caro, POTOMAC LAW GROUP, PLLC, Washington, D.C., for Appellees.

Author of Opinion: Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/10/2017 01:21 PM     4th Circuit     Comments (0)  

  Hamilton v. Pallozzi -- Fourth Circuit
Fourth Circuit Issues New Rules Governing Second Amendment Challenges

Areas of Law: Second Amendment, Civil Procedure

Issues Presented: Whether the appellant's Second Amendment challenge to Maryland's permitting scheme for handgun possession is justiciable and whether the appellant qualifies as a "law-abiding, responsible citizen" such that Maryland's regulatory scheme is unconstitutional as applied to him.

Brief Summary: The appellant brought an as-applied Second Amendment challenge against the appellees related to Maryland's firearms regulatory scheme. The appellant desired to purchase firearms in the state, but his disqualifying convictions from Virginia meant he would not be successful in his permit application. The United States District Court for the District of Maryland dismissed his complaint for failure to state a claim. Upon appeal, the Fourth Circuit affirmed the district court's decision and held, for the first time in this circuit, that the case was justiciable despite the appellant never having formally applied for a firearm permit. The Fourth Circuit then found that the appellant was not a "law-abiding, responsible citizen" as required for his challenge to be successful under United States v. Chester, 628 F.3d 673 (4th Cir. 2010). In so holding, the Fourth Circuit issued a new rule, which found that, absent two narrow exceptions, "conviction of a felony necessarily removes one from the class of 'law-abiding, responsible citizens' for the purposes of the Second Amendment."

Extended Summary: The appellant James Hamilton pleaded guilty in Virginia in 2006 to three nonviolent felonies. In 2013, the Governor of Virginia restored some of the appellant's civil rights, but neither pardoned the appellant for his crimes nor restored his right to possess firearms. That right was restored, pursuant to state statute, in 2014 by the Circuit Court for Spotsylvania County. Mr. Hamilton, a resident of Maryland, then sought to purchase and possess firearms, specifically a handgun and a long gun, for self-defense within his own home. After seeking guidance, the appellant was told by an Assistant Attorney General of Maryland that he could not possess a firearm in Maryland unless he obtained a full pardon from the Governor of Virginia. That guidance was in line with Maryland law, which prohibits possession of a firearm by anyone who has been convicted of a disqualifying crime. Md. Code, Pub. Safety § 5-133(b)(1), 5-205(b)(1). Because the appellant's Virginia convictions had equivalent felony counterparts under Maryland law and therefore constituted disqualifying crimes for purposes of firearm possession, Mr. Hamilton never went forward with the application process for a firearm permit in Maryland.

Instead, in 2015, the appellant brought a lawsuit in the United States District Court for the District of Maryland against the appellees (William Pallozzi in his official capacity as the Superintendent of the Maryland State Police and Brian Frosh in his official capacity at the Attorney General of Maryland). Mr. Hamilton sought a declaration that Maryland's regulatory scheme was unconstitutional as applied to him under the Second Amendment and an injunction against the appellees enforcing that scheme upon him. The appellees moved to dismiss the complaint for failure to state a claim and the appellant in turn moved for summary judgment. In their response to the summary judgment motion, the appellees raised a question regarding the justiciability of the appellant's challenge. The district court ultimately granted the motion to dismiss, finding that the case was justiciable but that the appellant failed to state a claim. More specifically, the district court found that Mr. Hamilton could not "remove his challenge from the realm of ordinary challenges" and accordingly could not meet his burden in the test laid out in United States v. Chester, 628 F.3d 673 (4th Cir. 2010).

Upon appeal, the Fourth Circuit first examined the justiciability of the claim before examining its merit. Both parties and the Fourth Circuit agreed that the appellant's pre-enforcement challenge as to the criminalization of possession of a long gun met the necessary requirements and was therefore justiciable. However, the appellant also challenged the permitting scheme for a handgun in Maryland, a challenge that the appellees argued was not justiciable. More specifically, the appellees said that the issue was not ripe because of Mr. Hamilton's failure to actually apply for a permit and because he may be denied a permit for reasons other than a disqualifying conviction. The appellant argued that this challenge was justiciable because he need not have gone through the process knowing his application would be rejected, based on the guidance of a government official. For the first time, the Fourth Circuit held that "plaintiffs are not required to undertake futile exercises in order to establish ripeness, and may demonstrate futility by a substantial showing." Because the appellant made that substantial showing, the Fourth Circuit affirmed the district court's finding of justiciability.

Turning to the merits of the appellant's claim, the Fourth Circuit affirmed the judgment of the district court in dismissing Mr. Hamilton's claim under United States v. Chester, 628 F.3d 673 (4th Cir. 2010). Chester established a two-prong test by which the Fourth Circuit determines whether an as-applied challenge to a felon disarmament law could succeed in rebutting the presumption of lawfulness for these types of restrictions. The first prong requires the court to conduct a "historical review to evaluate whether those rights, as understood in 1791, are 'burdened or regulated' by the statute in question." United States v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012). If the first prong is met, the second prong requires the challenged statute to pass through the appropriate level of judicial scrutiny. The appellant challenged this approach, arguing that there could be no justification for disarming someone who is a "law-abiding, responsible citizen" and that the second Chester prong would not need to be reached in that scenario. The Fourth Circuit disagreed with this approach, clarifying that precedent requires that the second prong must be considered if the first prong is met.

In asserting that he was a "law-abiding, responsible citizen" under the first Chester prong, the appellant argued that evidence of rehabilitation and the passage of time from the underlying conviction were relevant considerations. The Fourth Circuit disagreed and issued a new holding, that "conviction of a felony necessarily removes one from the class of 'law-abiding, responsible citizens' for the purposes of the Second Amendment" unless the felony conviction is pardoned or the law underlying the conviction is found to be either unconstitutional or unlawful. In a footnote, the Fourth Circuit noted it was leaving open the possibility that individuals convicted of misdemeanors may still potentially satisfy the first prong of the Chester test. Additionally, the Fourth Circuit held that "evidence of rehabilitation, likelihood of recidivism, and passage of time are not bases for which a challenger might remain in the protected class of 'law-abiding, responsible' citizen." In another footnote, the Fourth Circuit noted that it expressly did not exclude such evidence from being potentially relevant in other types of as-applied challenges to disarmament laws, specifically those involving the mentally ill.

Applying its new holdings to the facts of Mr. Hamilton's case, the Fourth Circuit found that the appellant was a state law felon who had neither received a pardon nor had the basis for his convictions declared unconstitutional or unlawful. Accordingly, the Fourth Circuit found that the appellant did not meet the first Chester prong and therefore could not state a claim for an as-applied Second Amendment challenge.

To read the full opinion, click here.

Panel: Judges Shedd, Duncan, and Floyd

Argument Date: 10/25/2016

Date of Issued Opinion: 2/17/2016

Docket Number: No. 16-1222

Decided: Affirmed by published opinion

Case Alert Author: Patrick J.L. Dillon, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Alan Gura, GURA & POSSESSKY, PLLC, Alexandria, Virginia, for Appellant. Mark Holdsworth Bowen, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Pikesville, Maryland, for Appellees. ON BRIEF: Cary Hansel, HANSEL LAW, P.C., Baltimore, Maryland, for Appellant. Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Michael Connelly, Ramona, California, for Amicus United States Justice Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Conservative Legal Defense and Education Fund, Downsize DC Foundation, DownsizeDC.org, Gun Owners Foundation, Gun Owners of America, Inc., Institute on the Constitution, and The Heller Foundation

Author of Opinion: Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/10/2017 01:03 PM     4th Circuit     Comments (0)  

  United States v. Agape Senior Community, Inc. -- Fourth Circuit
Attorney General Has Absolute Veto Power over Voluntary Settlements in FCA Qui Tam Actions

Areas of Law: Whistleblower Law, False Claims Act

Issue Presented: What is the extent of the Attorney General's power under 31 U.S.C. § 3730(b)(1) to veto the voluntary settlement of a False Claims Act qui tam action in which the Government declined to intervene?

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the Attorney General possesses an absolute veto power under 31 U.S.C. § 3730(b)(1) over voluntary settlements in FCA qui tam actions for three reasons. First, the plain language of 31 U.S.C. § 3730(b)(1) is unambiguous. Second, § 3730(b)(1) is not temporally qualified or explicitly limited in any other manner. Third, the Attorney General's absolute veto power is entirely consistent with the statutory scheme of the FCA, which indicates that the United States is the real party in interest in any FCA suit. Accordingly, the Fourth Circuit affirmed the district court's "unreviewable veto" ruling.

As to the statistical sampling ruling, the Fourth Circuit found that the relators' appeal did not present a pure question of law that is subject to the court's interlocutory review under § 1292(b). Therefore, the court dismissed the appeal of this aspect of the ruling as improvidently granted.

Extended Summary: The False Claims Act (the "FCA") authorizes a private individual (i.e., a relator) to initiate and pursue an action in the name of the United States Government (a qui tam action) to seek civil remedies for fraud against the Government. 31 U.S.C. § 3730(b)(1). The relator's complaint must be served on the Government and kept under seal for at least sixty days. Id. at § 3730(b)(2). Before the expiration of the sixty-day period (or any extension), the Government must either (1) "proceed with the action" by assuming primary responsibility for the action's prosecution, or (2) "notify the court that it declines to take over the action" from the relator, who will then "have the right to conduct the action." Id. at § 3730(b)(4)(A)-(B). If the Government declines to intervene during the initial sixty-day (or extended) period, the court may nevertheless permit its intervention "at a later date upon a showing of good cause." Id. § 3730(c)(3). The qui tam "action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting." Id. § 3730(b)(1).

Defendant Agape Senior Community, Inc., and the other defendants (collectively, "Agape") are affiliated entities that operate elder care facilities throughout South Carolina. The relators, Brianna Michaels and Amy Whitesides, are former Agape employees. In December 2012, the relators served their complaint against Agape on the Government, alleging that Agape fraudulently billed Medicare and other federal health care programs for services to thousands of patients. The Government declined to intervene. Thereafter, the district court unsealed the complaint and the qui tam action proceeded.

In January 2015, the relators and Agape mediated without the Government's knowledge and reached a settlement. Relying on § 3730(b)(1), the Attorney General objected to the proposed settlement. Citing the Ninth Circuit's decision in United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715 (9th Cir. 1994), the relators and Agape argued that because the Government had declined to intervene, the Attorney General's objection to the proposed settlement was subject to the district court's reasonableness review. The Government instead relied on the Fifth Circuit decision in Searcy v. Philips Electronics North America Corp., 117 F.3d 154 (5th Cir. 1997), and the Sixth Circuit's decision in United States v. Health Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000). The Government argued that the Attorney General possesses an absolute veto power over voluntary settlements in FCA qui tam actions. In June 2015, the district court agreed with the Government's reasoning and sustained the Attorney General's objection (the "unreviewable veto" ruling).

In addition, the district court rejected the relators' request to use statistical sampling to establish liability and damages, finding that such use would be improper (the "statistical sampling" ruling). The district court certified both rulings for interlocutory appeal. Both parties filed petitions for permission to appeal, which were granted by the Fourth Circuit.

First, the Fourth Circuit acknowledged that the extent of the Attorney General's veto power under § 3730(b)(1) was a novel issue. The court thus began with a discussion of the three circuits' decisions debated in the district court: Killingsworth (Ninth Circuit), Searcy (Fifth Circuit), and Health Possibilities (Sixth Circuit).

In Killingsworth, the Ninth Circuit concluded that when the Government has not intervened, the Attorney General may object to a proposed settlement only with a showing of "good cause;" after which the Government can obtain a hearing on whether the settlement is "fair and reasonable." The Killingsworth court's interpretation was rejected by the Fifth Circuit in its Searcy decision and by the Sixth Circuit in its Health Possibilities decision. The Fourth Circuit agreed with the district court, and with the Fifth and Sixth Circuits, that the Attorney General possesses an absolute veto power over voluntary settlements in FCA qui tam actions.

First, the Fourth Circuit relied on the plain language of 31 U.S.C. § 3730(b)(1) and agreed with the Fifth Circuit that the language is unambiguous - that a qui tam action "may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting." Second, the Fourth Circuit found that § 3730(b)(1) is not temporally qualified or explicitly limited in any other manner. Unlike other provisions of § 3730, § 3730(b)(1) does not overtly require the Government to satisfy any standard or make any showing reviewable by the court.

Third, the Fourth Circuit held that the Attorney General's absolute veto power is entirely consistent with the statutory scheme of the FCA. Even where the Government declines to intervene, the Fourth Circuit acknowledged that the United States is the real party in interest in any FCA suit. Agreeing with both the Fifth and Six Circuits, the Fourth Circuit observed that qui tam relators are motivated primarily by prospects of monetary reward rather than the public good. The Fourth Circuit found that this is the reason why Congress has granted the Attorney General the broad and unqualified right to veto proposed settlements of qui tam actions.

Therefore, the Fourth Circuit concluded that, under the plain language of § 3730(b)(1), the Attorney General possesses an absolute veto power over voluntary settlements in FCA qui tam actions. Accordingly, the Fourth Circuit affirmed the district court's "unreviewable veto" ruling.

As to the statistical sampling ruling, the Fourth Circuit found that the relators' appeal did not present a pure question of law that was subject to the court's interlocutory review under § 1292(b). Therefore, the court dismissed the appeal of the ruling as improvidently granted.

To read the full opinion, click here.

Panel: Judges King, Keenan, and Diaz

Argument Date: 10/26/2016

Date of Issued Opinion: 02/14/2017

Docket Number: No. 15-2145, No. 15-2147

Decided: Affirmed in part and dismissed in part by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Mario A. Pacella, STROM LAW FIRM, Columbia, South Carolina, for Appellants. William Walter Wilkins, NEXSEN PRUET, LLC, Greenville, South Carolina, for Appellees. Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee United States of America. ON BRIEF: T. Christopher Tuck, Catherine H. McElveen, Mt. Pleasant, South Carolina, Daniel Haltiwanger, Terry E. Richardson, Jr., RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC, Barnwell, South Carolina; Christy M. DeLuca, CHRISTY DELUCA, LLC, Mt. Pleasant, South Carolina; Jessica H. Lerer, STROM LAW FIRM, Columbia, South Carolina, for Appellants. Deborah B. Barbier, DEBORAH B. BARBIER ATTORNEY AT LAW, Columbia, South Carolina; Kirsten E. Small, Mark C. Moore, William C. Lewis, NEXSEN PRUET, LLC, Greenville, South Carolina, for Appellees Agape Senior Community, Inc., et al. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Michael S. Raab, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William N. Nettles, United States Attorney, Elizabeth C. Warren, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee United States of America. James F. Segroves, Kelly A. Carroll, David J. Vernon, HOOPER, LUNDY & BOOKMAN, PC, Washington, D.C., for Amicus SavaSeniorCare Administrative Services, LLC. Melinda Reid Hatton, Maureen Mudron, AMERICAN HOSPITAL ASSOCIATION, Washington, D.C.; Lisa Gilden, THE CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES, Washington, D.C.; Jessica L. Ellsworth, Washington, D.C., Thomas P. Schmidt, HOGAN LOVELLS US LLP, New York, New York, for Amici American Hospital Association and Catholic Health Association of the United States. Colin E. Wrabley, M. Patrick Yingling, REED SMITH, LLP, Pittsburgh, Pennsylvania, for Amicus American Health Care Association.

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/10/2017 10:34 AM     4th Circuit     Comments (0)  

March 29, 2017
  Koby v. Helmuth - Ninth Circuit
Headline: The Ninth Circuit panel held that a magistrate judge was not required to obtain consent from four million class members before approving a class action settlement, but also held that the magistrate judge abused her discretion by approving the settlement because there was no evidence that the injunctive relief afforded by the settlement had any value to the class members, yet to obtain it they had to relinquish their right to seek damages in any other class action.

Areas of Law: Federal Rules of Civil Procedure 23(e)(2), 28 United States Code § 363(c), Article III and Due Process Clause of United States Constitution

Issues Presented:
(1)(a) Whether 28 U.S.C. § 363(c) required the magistrate judge to obtain the consent of the four million class members before entering final judgment, and (b) whether not requiring the class members' consent would violate their Article III rights.
(2) Whether the magistrate judge abused her discretion in applying the FRCP 23(e)(2) "fairness" standard, when she approved a settlement which gave the unnamed plaintiffs nothing of value.

Brief Summary: After the parties engaged in settlement discussions for with the assistance of a magistrate judge, the named plaintiffs eventually consented to having the same magistrate judge conduct all further proceedings in the case, including the entry of final judgment, without the consent of the four million class members.. The district court entered an order authorizing the magistrate judge to exercise jurisdiction over the case, and she presided over all further proceedings. Under the terms of the settlement agreement ultimately reached, the parties agreed to seek certification of a nationwide, settlement-only class under Federal Rule of Civil Procedure 23(b)(2). The magistrate judge approved the settlement, without consent of the class members. The settlement gave the class members' monetary reward to a San Diego veterans charity, as well as injunctive relief rendered ineffective by an escape clause. The panel held that the magistrate had authority to enter judgment under 28 U.S.C. § 363(c) with only the consent of the named plaintiffs. The panel also found the settlement terms approved by the magistrate to be unfair to the class members under FRCP 23(e)(2), because the relief offered was of no real value them but only to the named plaintiffs and the class counsel.

Significance: 28 U.S.C. § 363(c) authorizes magistrate judges, "pon the consent of the parties," to "conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or court she serves." § 363(c)(1). The panel held that, in a settlement class action, "consent of the parties" does not include unnamed plaintiffs, but requires the consent of the named plaintiffs only. The panel also held that the magistrate judge abused her discretion in approving the class action settlement because the injunctive relief and cy pres damages did not benefit the unnamed plaintiffs. Thus, "ecause the settlement gave the absent class members nothing of value, they could not fairly or reasonably be required to give up anything in return."

Extended Summary: In 2009, Michael Koby, Michael Simmons, and Jonathan Supler brought a class action lawsuit against ARS National Services, Inc. ("ARS"), a debt collection agency, for violation of the Fair Debt Collection Practice Act ("FDCPA"). The named plaintiffs sued on behalf of a class of four million people across the U.S. who had been targets of ARS voicemails which violated the FDCPA.
Over the course of more than a year, the parties engaged in settlement discussions with the assistance of a magistrate judge. The named plaintiffs and ARS eventually consented to having the same magistrate judge conduct all further proceedings in the case, including the entry of final judgment. The district court entered an order authorizing the magistrate judge to exercise jurisdiction over the case, and she presided over all further proceedings.

Under the terms of the settlement agreement, the parties agreed to seek certification of a nationwide, settlement-only class under Federal Rule of Civil Procedure 23(b)(2). Because the class would be certified under Rule 23(b)(2), the parties agreed that no notice of any kind would be sent to the four million class members and that no one would be permitted to opt out of the class. ARS agreed to pay the maximum amount of damages allowed by FDCPA for both named and unnamed plaintiffs. The named plaintiffs received $1,000 each, and the unnamed plaintiffs got $35,000 total. The magistrate found that distributing the relief to four million unnamed plaintiffs would be impossible, as the reward would be less than a penny per class member. Instead, ARS agreed to give the unnamed plaintiffs' award as a cy pres donation to a San Diego veterans' charity organization. The settlement terms also enjoined ARS from reverting back to practices which violated the FDCPA in the agreement, though this term included an escape clause and ARS had already changed its procedures to conform to standards.

After conducting a fairness hearing at which Helmuth's counsel, ARS's counsel, and class counsel presented argument, the magistrate judge certified the proposed class under Rule 23(b)(2), approved the settlement as fair, reasonable, and adequate under Rule 23(e)(2), and entered judgment accordingly. Bernadette Helmuth, a class member, is an unnamed plaintiff who would be bound by the settlement agreement. She also happened to be a named plaintiff in a separate class action suit awaiting formal class certification against ARS, for the same violations of FDCPA, in the Southern District of Florida. Helmuth filed an objection to stay the settlement between ARS and Koby et. al., but the objection was denied.

The magistrate entered final judgment. Helmuth appealed, raising the following issues issues: First, whether requiring only the consent of the named plaintiffs, and not the four million class members, for the magistrate to be authorized to conduct the proceedings is permitted under 28 U.S.C § 363(c) and Article III of the U.S. Constitution. Second, whether the magistrate judge abused her discretion by applying the FRCP 23(e)(2) "fairness" standard, when she approved a settlement which gave the unnamed plaintiffs nothing of value.

The panel held that a magistrate only needs consent from named plaintiffs in a class action lawsuit under § 363(c). The language of the statute gives a magistrate authority to enter judgment on a class action lawsuit only if "the parties" consent; however it does not specify which parties in a class action lawsuit.
The panel pointed to the language and legislative intent of § 363(c) to find that consent of "the parties" constitutes only consent of parties involved in making litigation strategy decisions, such as the named plaintiffs in a class action lawsuit. § 363(c)(1) requires a court clerk to "notify the parties of the availability of a magistrate judge," which would be reasonable if the legislature meant to apply only to named plaintiffs. If "parties" were interpreted to include unnamed plaintiffs, § 363(c)(1) would require a clerk to somehow notify millions of unnamed plaintiffs, which is an unnecessary and unreasonable burden to impose on the courts. It would also be unreasonable to require the magistrate to seek consent from four million unnamed plaintiffs under § 363(c). Accordingly, the panel held "the parties" of § 363(c) was intended only to apply to named plaintiffs, and that the magistrate judge was required to get consent from only named plaintiffs.

Additionally, the panel noted that this interpretation of § 363(c) is consistent with FRCP 23 which necessarily limits consent requirements to named plaintiffs because, by its very nature, a class action lawsuit requires the named plaintiffs to make litigation decisions on behalf of unnamed plaintiffs. So, it could be said that not requiring unnamed plaintiffs' consent under § 363(c) is par for the course.

The Supreme Court has held that litigants in federal court have a personal right, under Article III, to adjudication of their claims by a judge who enjoys the salary and tenure protections afforded by Article III - protections that magistrate judges lack. But the panel further noted that the personal right to an Article III adjudicator may be waived, and a party's express or implied consent to adjudication by a magistrate judge constitutes a valid waiver of the right. Therefore, Article III does not categorically prohibit the named plaintiffs from waiving, on behalf of the class members they represent, the right to proceed before an Article III judge. Since the interests of a class representative must be found to be typical of the class members, the named plaintiffs can therefore be expected to protect the absent class members' interests in the exercise of the right conferred by Article III. The panel further held that "[l]imits imposed by the Due Process Clause on the enforcement of class judgments do not curtail a magistrate judge's authority under § 636(c) to enter judgment in the first instance - a judgment that at the very least will bind the named parties who consented to the magistrate judge's jurisdiction."

The panel went on to hold that the magistrate judge abused her discretion in applying the FRCP 23(e)(2) "fairness" standard, when she approved a settlement which gave the unnamed plaintiffs nothing of value. The panel found that the settlement agreement did not align with the interests of the class members and, thus, was an abuse of discretion by the magistrate to approve it.
ARS agreed to give a cy pres donation to a veterans' charity. The panel cited Nachsin v. AOL to show that cy pres donations must be "tethered to the objectives/interests" of unnamed plaintiffs. The magistrate was not offered any evidence which showed the chosen charity had any "nexus" to the class members. In fact, the four million unnamed plaintiffs, who are spread throughout the nation, had no geographic connection to the San Diego veteran charity's location.

Furthermore, the magistrate was never shown that a disproportionate amount of the class members were veterans. Thus, the magistrate entered judgment despite zero evidence that the cy pres donation had value to the unnamed plaintiffs.
The panel further found that "[t]he fact that class members were required to give up anything at all in exchange for worthless injunctive relief precluded approval of the settlement as fair, reasonable, and adequate under Rule 23(e)(2)."

Because the settlement agreement did not offer anything of value to unnamed plaintiffs, the magistrate abused her discretion by entering her final judgment. The panel reversed and remanded the terms of the settlement agreement.
To read the full opinion, please visit: "><br ">http://...../da...3-56964.pdf


Panel: Paul J. Watford and Michelle T. Friedland, Circuit Judges, and J. Frederick Motz, District Judge for the U.S. District Court for the District of Maryland, sitting by designation.
Argument Date: January 7, 2016
Date of Issued Opinion: January 25, 2017
Docket Number: 13-56964
Decided: Reversed and Remanded
Case Alert Author: Devin Bruen
Counsel: Jonathon Taylor (argued) and Deepak Gupta, Gupta Beck PLLC, Washington, D.C.; Donald A. Yarbrough, Fort Lauderdale, Florida; Steven M. Bronson, The Bronson Firm APC, San Diego, California; for Objector-Appellant.
Philip D. Stern (argued), Union, New Jersey; Robert E. Schroth, Sr. and Robert E. Schroth, Jr., Schroth & Schroth, San Diego, California, for Plaintiffs-Appellees.
Sean P. Flynn (argued), Gordon & Rees Scully Mansukhani, Irvine, California; David L. Hartsell, McGuire Woods LLP, Chicago, Illinois; for Defendant-Appellee.
Brian Wolfman, Institute for Public Representation, Georgetown University Law Center, Washington D.C.; Ira Rheingold, National Association of Consumer Advocates, Washington, D.C.; for Amicus Curiae National Association of Consumer Advocates.
Author of Opinion: Judge Paul J. Watford
Circuit: Ninth
Case Alert Supervisor: Glenn S. Koppel

Edited: 04/04/2017 at 03:20 PM by Glenn Koppel

    Posted By: Glenn Koppel @ 03/29/2017 07:50 PM     9th Circuit     Comments (0)  

March 28, 2017
  Christiansen v. Omnicom Group, Inc. - Second Circuit
Headline: Openly Gay Employee Has Valid Gender Stereotyping Claim under Title VII Arising from Workplace Discrimination; Concurring Opinion Suggests Second Circuit Reconsider Whether Sexual Orientation Claims Can Serve as a Basis for Claims Under Title VII

Areas of Law: Labor and Employment, Gender Rights

Issue(s) Presented: Whether workplace harassment alleged by opening gay employee sufficiently stated a valid gender stereotyping claim under Title VII

Brief Summary: Matthew Christiansen, an HIV-positive, openly gay man, was an employee of an advertising agency. During his employment, he was subjected to a humiliating pattern of harassment by his supervisor in the form of sexually suggestive images and inappropriate remarks that referred to his effeminacy, sexual orientation, and HIV status. Christiansen sued the agency and its parent corporation for discrimination under the American Disabilities Act, Title VII of the Civil Rights Act, and state and local law. The United States District Court for the Southern District of New York granted the defendant's motion to dismiss Christiansen's claims, holding that his claims alleged sexual orientation discrimination, which the Second Circuit has ruled is not cognizable sex discrimination under Title VII. The U.S. Court of Appeals for the Second Circuit disagreed and reversed, finding that Christiansen's claims adequately alleged discrimination on the basis of gender stereotyping, which is a valid claim under Title VII. In a concurring opinion, Second Circuit Chief Judge Katzmann argued strenuously that the Second Circuit should revisit its precedential decisions that sexual orientation claims are not cognizable sex discrimination cases under Title VII.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...9b4e9902ab5/1/hilite/

Extended Summary: Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an individual based upon the individual's sex. A 1989 U.S. Supreme Court case established that this protection covers discrimination based upon gender stereotyping, finding that a woman who was told to act more femininely in order to receive a promotion was discriminated against on the basis of her sex. Subsequently, however, the Second Circuit and other circuit courts have declined to extend this language to include discrimination on the basis of sexual orientation.

Relying on, and indicating they were bound by, Second Circuit precedent, the United States District Court for the Southern District of New York dismissed Christiansen's claims on defendant's motion to dismiss for failure to state a legal claim, holding that they were rooted primarily in sexual orientation discrimination, rather than gender stereotyping, and, therefore, not covered by Title VII. However, the Second Circuit found that Christiansen had identified instances in which his supervisor discriminated against him on the basis of gender stereotyping, such as his description of Christiansen as "effeminate" to others in the office, and making reference to Christiansen's feminine qualities in sexually suggestive drawings. The Second Circuit panel explained that although it did not have authority to overrule circuit precedent stating that discrimination based upon sexual orientation is not covered by Title VII, these decisions do not lessen the protection that gay, lesbian, and bisexual individuals have against gender stereotyping, and that these individuals must be afforded the same level of protection as heterosexual individuals.

In a lengthy concurring opinion joined by District Judge Brodie (sitting by designation), Chief Judge Katzmann argued that "the legal landscape has substantially changed" since the Second Circuit's prior rulings and that this court should, in the context of an appropriate case, revisit the holding that sexual orientation claims are not cognizable under Title VII. He outlined three potential arguments, not previously considered by the Second Circuit, that might support a finding that Title VII prohibits discrimination on the basis of sexual orientation and contended that a "fresh look" was warranted given "societal understanding of same-sex relationships has evolved considerably," the EEOC position on the issue had changed, and more recent Supreme Court decisions have "afford(ed) greater legal protection to gay, lesbian, and bisexual individuals."

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...9b4e9902ab5/1/hilite/

Panel:
Circuit Judges Katzmann and Livingston; District Judge Brodie, sitting by designation

Argument Date:
1/20/2017

Date of Issued Opinion:
3/27/2017

Docket Number:
16-748

Decided: Reversed and remanded

Case Alert Author: Alexandra Dobles

Counsel: Susan Chana Lask, Law Offices of Susan Chana Lask, for Plaintiff-Appellant Matthew Christiansen; Howard J. Rubin, Davis & Gilbert LLP, for Defendant-Appellees Omnicom Group Inc., DDB Worldwide Communications Group Inc., Peter Hempel, and Chris Brown; Rick Ostrove, Leeds Brown Law, P.C., for Defendant-Appellee Joe Cianciotto

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Diamond @ 03/28/2017 08:47 AM     2nd Circuit     Comments (0)  

March 27, 2017
  Jacoby & Meyers v. The Presiding Justices
Headline: Second Circuit Rejects First Amendment Challenge to New York's Prohibition of Non-Lawyer Investment in Law Firms

Area of Law: Constitutional Law

Issue Presented: Whether New York State's prohibitions on non-lawyer investment in law firms violate lawyers' First Amendment rights to associate with clients and access the courts.

Brief Summary: Jacoby & Meyers brought a putative class action challenging New York's rules, regulations and statutes that collectively prohibit non-attorneys from investing in law firms. The complaint alleged that the additional capital from such investors would allow firms to improve the quality of their legal services and reduce their fees. The United States District Court for the Southern District of New York dismissed the complaint, and the plaintiffs appealed. The Second Circuit affirmed, explaining that "in the context of for-profit law firms who serve their clients' interests as a business," the First Amendment associational right "belongs to the client, not the attorney." Moreover, even assuming for the sake of argument that for-profit law firms "could be found to have some degree of First Amendment right to associate with clients or to petition the government through the courts on their clients' behalf," the complaint failed because the prohibitions were rationally related to a legitimate government interest.

Extended Summary: New York, like many other states, prohibits non-attorneys from investing in law firms. "The prohibition is generally seen as helping to ensure the independence and ethical conduct of lawyers." Jacoby & Meyers, LLP, a limited liability partnership (the "LLP"), and Jacoby & Meyers USA II, PLLC, a related professional limited liability company (the "PLLC"; together, "plaintiffs" or the "J&M Firms") brought a putative class action challenging the various New York state rules, regulations, and statutes that collectively prohibit such investments. They alleged that they had received offers from various sources (including "high net-worth individuals" and "institutional investors) to invest capital in exchange for owning an interest in the firm, and that this funding would enable them to represent their clients more effectively. They argued that "the state regime unlawfully interferes with their rights as layers to associate with clients and to access the courts - rights they see as grounded in the First Amendment."

The United States District Court for the Southern District dismissed the complaint, and the plaintiffs appealed. The Second Circuit affirmed the dismissal. First, the court explained that the First Amendment associational right likely did not apply to for-profit law firms. The court noted that the "Supreme Court has held that the First Amendment bears on some situations in which clients and attorneys seek each other out to pursue litigation," but all of those situations were distinguishable. In particular, there is one line of cases involving political advocacy organizations' ability to recruit and solicit clients, and another line of cases involving clients' ability to collectively seek legal counsel. "The Supreme Court has never held, however, that attorneys have their own First Amendment right as attorneys to associate with current or potential clients, or their own right to petition the government for the redress of their clients' grievances when the lawyers are acting as advocates for others, and not advocating for their own cause," the court explained. The court was skeptical that such First Amendment rights were possessed by for-profit law partnerships or PLLCs that were not engaged in their own political advocacy or expression.

Acknowledging, however, that "the law is evolving rapidly with respect to the protections afforded commercial speech by the First Amendment," the court went on to consider whether--assuming that the plaintiffs did possess some degree of First Amendment rights here--those rights were violated by the New York prohibition. It concluded that they were not. It rejected the plaintiffs' argument that strict scrutiny should apply here, explaining that because there was no substantial burden on a First Amendment right, only rational basis review applied. Because the regulations were rationally related to a legitimate governmental interest - namely, New York State's "well-estalbished interest in regulating attorney conduct and in maintaining ethical behavior and independence" - they "easily pass[ed] muster."
To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...8fb11aeca48/1/hilite/

Panel: Circuit Judges Lynch and Carney, District Judge Hellerstein

Argument Date:
8/19/16

Date of Issued Opinion: 3/24/17

Docket Number: 15-2608

Decided: Affirmed

Case Alert Author: Belino Voshtina

Case Alert Supervisor: Emily Gold Waldman

Counsel: Douglas Gregory Blankinship, Finkelstein, Blankinship, Frei‐Pearson & Garber, LLP, White Plains, New York for Appellants.

Andrew Rhys Davies, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, New York, for Appellees.

Author of Opinion: Judge Carney

Circuit: Second Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 03/27/2017 07:36 PM     2nd Circuit     Comments (0)  

  Evans v. Georgia Regional Hospital Charles Moss, et. al. - 11th Circuit
Headline: Eleventh Circuit holds Title VII affords relief for gender non-conformity discrimination, but not sexual orientation discrimination.

Area of law: Constitutional Law, Civil Rights

Issue: Whether a Title VII claim is available for both gender non-conformity and sexual orientation discrimination.

Extended Summary: Jameka Evans ("Evans") filed a pro se Title VII complaint seeking recovery based on sexual orientation and gender non-conformity discrimination, as well as retaliation, which allegedly occurred during her employment at Georgia Regional Hospital. The magistrate judge found that Evans' first claim, sexual orientation discrimination, was not proper under Title VII. With regard to the gender non-conformity discrimination claim, the magistrate judge concluded that it was just another way to allege what was contained in the first count. The district judge dismissed the complaint, adopting the magistrate judge's report and recommendation. The Eleventh Circuit affirmed the dismissal of the first count finding that it was not cognizable as a Title VII claim. However, the court found the second count for gender non-conformity discrimination was a permissible, valid and separate, distinct avenue for relief under Title VII. The court also found Evans' argument relating to the retaliation claim was deemed waived. Accordingly, the Eleventh Circuit affirmed in part, vacated in part, and remanded for further proceedings.

Judge William Pryor concurred with a separate opinion. Judge Rosenbaum concurred in part and dissented in part.

To view the full opinion: http://media.ca11.uscourts.gov...ub/files/201515234.pdf

Panel: William Pryor and Rosenbaum, Circuit Judges, and Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation.

Argument: December 15, 2016

Date of Issued Opinion: March 10, 2017

Docket Number: 15-15234

Decided: Affirmed in part, vacated in part and remanded.

Case Alert Authors: Luis Garcia, Shantell Monreal, and Uxsunn Ramirez

Counsel:
Gail S. Coleman for Amicus Curiae Equal Employment Opportunity Commission
Gregory R. Nevins for Appellant Jameka K. Evans

Author of Opinion: Jose E. Martinez, United States District Judge

    Posted By: Gary Kravitz @ 03/27/2017 05:43 PM     11th Circuit     Comments (0)  

  Carvalho-Grevious v. Delaware State University - Third Circuit
Headline: In Title VII Retaliation Claim, Plaintiff Need Only to Proffer Evidence Sufficient to Raise Inference that Engagement in Protected Activity was Likely Reason, Not But-For Reason

Areas of Law: Employment Discrimination

Brief Summary: In this Title VII retaliation suit, the Third Circuit addressed the question of whether a plaintiff asserting a Title VII relation claim must establish but-for causation as part of her prima facie case. The Third Circuit holds that, at the prima facie stage, a plaintiff need only to proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason.

Extended Summary: In this Title VII retaliation claim, Carvalho-Grevious appealed from an order of summary judgment granted in favor of her former employer, Delaware State University (DSU). The employee, a professor, alleged that by retaliating against her for complaining about discriminatory employment practices based on race and gender, DSU violated Title VII of the Civil Rights Act. On May 3, 2011, the employee was informed that she would be dismissed as chairperson after previously filing multiple complaints of discriminatory conduct by her employer. Furthermore, on June 21, 2011 DSU revoked her renewable contract and issued her a terminal contract. Finally, on June 22, 2012, when the terminal contract expired, DSU elected not to renew the contract. Accordingly, the employee filed suit in District Court. At this time, DSU filed a motion for summary judgment, which was granted by the District Court on the basis that when a plaintiff asserts a Title VII retaliation claim, she must prove that the employer's unlawful retaliation was the but-for cause of the adverse employment action. On appeal, the Third Circuit was tasked with answering the question of whether the standard on which the District Court based its grant of summary judgment was the proper standard.

More specifically, the question before the court was: what must a plaintiff provide as part of her prima facie case of retaliation to survive a motion for summary judgment in the wake of the Supreme Court's decision in Nassar, which held that Title VII retaliation claims must be proven according to traditional principles of but-for causation? In Nassar, the Supreme Court held that, in a retaliation claim, a plaintiff's ultimate burden is to prove that retaliatory animus was the but-for cause of the adverse employment action. However, as decided by the Third Circuit in this case, that burden differs at the prima face stage of the case. Consistent with overwhelming precedent, a plaintiff alleging retaliation has a lesser causal burden at the prima facie stage. Accordingly, the proper standard at the prima facie stage is that the plaintiff must produce evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse employment action. Thus, Nassar does not alter the plaintiff's burden at the prima facie stage; proving but-for causation as part of her ultimate burden of persuasion comes later, and not at the motion-to-dismiss stage.

The full opinion is available at http://www2.ca3.uscourts.gov/opinarch/153521p.pdf

Panel: Ambro, Smith, Fisher, Circuit Judges (Judge Smith became Chief Judge on Oct. 1, 2016)

Argument Date: September 27, 2016

Date of Issued Opinion: March 21, 2017

Docket Number: 15-3521

Decided: March 21, 2017

Case Alert Author: David A. Rosenfeld

Counsel: Christine E. Burke, Ari R. Karpf, Counsel for Appellant; Gerard M. Clodomir, James D. Taylor Jr., Counsel for Appellees

Author of Opinion: Circuit Judge Fisher

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 03/27/2017 01:40 PM     3rd Circuit     Comments (0)  

  Kolbe, et al. v. Hogan, et al. -- Fourth Circuit
Assault Weapons and Large-Capacity Magazines Fall Outside Second Amendment Protections

Areas of Law: Constitutional Law; Fourteenth Amendment; Second Amendment

Issues Presented: Whether the Firearm Safety Act of 2013 violates the Second Amendment by imposing restrictions on assault weapons and large-capacity magazines. Whether the Firearm Safety Act of 2013 violates the Equal Protection Clause of the Fourteenth Amendment by providing an exception for retired Maryland law enforcement officers. Whether the restriction against "copies" of assault weapons set forth in the Firearm Safety Act of 2013 violates the Due Process Clause of the Fourteenth Amendment by being too vague to provide adequate notice of the proscribed conduct.

Brief Summary: In a published en banc opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment and held that the Firearm Safety Act of 2013 ("FSA") does not violate the Second and Fourteenth Amendments. First, the Fourth Circuit concluded that assault weapons and large-capacity magazines constitute weapons of war and therefore are not protected by the Second Amendment. Second, assuming that assault weapons and large-capacity magazines are protected by the Second Amendment, the FSA withstands intermediate scrutiny on the basis that it advances the compelling state interest in public safety by reducing the availability of such equipment. Third, the Fourth Circuit held that the FSA's exception for retired Maryland law enforcement officers does not violate the Fourteenth Amendment's Equal Protection Clause, because retired police officers are not situated similarly with members of the general public. Finally, the Fourth Circuit concluded that the FSA's ban against "copies" of assault weapons provides adequate notice of the conduct proscribed and therefore does violate the Due Process Clause of the Fourteenth Amendment.

Judge Wilkinson issued a concurrence emphasizing that the state legislature is best positioned to address issues of gun violence. Judge Diaz issued an opinion concurring in part, concluding that the FSA withstands constitutional scrutiny. Judge Traxler issued a dissenting opinion, in which he contended that the Second Amendment's protections include assault weapons and large-capacity magazines and that the FSA fails to withstand strict scrutiny. Finally, Judge Traxler issued an opinion dissenting in part and concurring in part, in which he asserted that the FSA violated the Fourteenth Amendment's Equal Protection Clause but did not violate the Fourteenth Amendment's Due Process Clause.

Extended Summary: In response to the rise in mass shootings and gun violence, the Maryland General Assembly enacted the Firearm Safety Act of 2013 ("FSA"). The FSA bans assault rifles and shotguns ("assault weapons"), as well as "copies" of assault weapons. The FSA also places restrictions on detachable large-capacity magazines. The FSA provides an exception for retired Maryland law enforcement officers in certain circumstances.

In September of 2013, a group of Maryland residents and firearms dealers ("Appellants") filed suit for declaratory and injunctive relief against Governor Lawrence Hogan, Jr., Attorney General Brian Frosh, Colonel William Pallozzi of the Maryland State Police, and the Maryland State Police (collectively, the "State"). Appellants alleged that (1) the restrictions on assault weapons and large-capacity magazines violated the Second Amendment; (2) the FSA's exception for retired Maryland law enforcement officers violated the Equal Protection Clause of the Fourteenth Amendment; and (3) the FSA's restrictions on "copies" of assault weapons was vague and thus violated the Due Process Clause of the Fourteenth Amendment. The District Court upheld the FSA, applying intermediate scrutiny on review. On appeal, a divided three-judge panel of the Fourth Circuit vacated the District Court's judgment and remanded the case with directions to reevaluate the statute using strict scrutiny.

After granting a rehearing en banc, the Fourth Circuit affirmed the District Court's judgment and held that the FSA does not violate the Second or Fourteenth Amendments. Citing the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the full court first concluded that the banned assault weapons and large-capacity magazines constitute "exceptionally lethal weapons of war" beyond the Second Amendment's reach, as demonstrated by their overwhelming use in mass shootings and other acts of gun violence.

Moreover, the Fourth Circuit held that, assuming the FSA-banned equipment is entitled to Second Amendment protection, the FSA nonetheless withstood the appropriate intermediate scrutiny standard of review. Concluding that the FSA does not severely burden the right of citizens to use arms for self-defense in the home, the Fourth Circuit applied intermediate scrutiny to determine whether the FSA was "reasonably adapted to a substantial governmental interest." First, the Fourth Circuit emphasized that the State has a substantial and compelling interest in protecting its citizenry and the public safety. Second, the Fourth Circuit reasoned that the FSA will reasonably advance the State's interest by reducing the overall availability of assault weapons and large-capacity magazines for use in mass shootings, criminal acts, and accidents.

Turning to the Appellants' Fourteenth Amendment claims, the Fourth Circuit rejected the Appellants' argument that retired Maryland law enforcement officers are similarly situated to members of the public. Unlike members of the public, police officers receive extensive specialized training related to the use of assault weapons, use of force, and harm reduction. The Fourth Circuit also rejected Appellants' argument that the FSA's restrictions against "copies" of assault weapons are unconstitutionally vague, emphasizing Maryland's prior use of the term "copies" in firearms statutes. The Attorney General and Maryland State Police have also provided guidance related to what constitutes a "copy" of a weapon.

In a concurring opinion joined by Judge Wynn, Judge Wilkinson concluded the FSA should be upheld in its entirety in no small part because the state legislature is best positioned to address the issue of gun violence. Judge Wilkinson further determined that striking the FSA would impair the state legislature's ability to prevent future tragedies and "would deliver a body blow to democracy as we have known it since the very founding of this nation." Judge Diaz also wrote a separate opinion concurring in part, in which he asserted that the Court need only hold that the FSA passes constitutional scrutiny under the Second Amendment.

Judge Traxler issued a dissenting opinion, joined by Judges Niemeyer, Shedd, and Agee. Applying a "common use" analysis, Judge Traxler contended that assault weapons and large-capacity magazines deserve Second Amendment protection due to the "statistically significant number of American citizens" that possess FSA-banned equipment for lawful purposes. In Judge Traxler's view, strict scrutiny applies against the FSA, because the FSA imposes a severe burden upon citizens' ability to purchase commonly possessed firearms for use in their homes for self-defense. Specifically, the dissent reasoned that citizens should have a choice of desired firearm. Semi-automatic rifles and large-capacity magazines, for example, may enhance an anxious homeowner's ability to protect against a home invader by eliminating reload time and providing greater accuracy.

Finally, Judge Traxler issued a second opinion dissenting in part and concurring in part. Judge Traxler dissented from the majority's opinion on the equal protection claim for reasons set forth in the now-vacated panel opinion. Finally, he concurred in the majority's judgment that the FSA did not violate the Due Process Clause of the Fourteenth Amendment.

To read the full opinion, click here.

Panel: Chief Judge Gregory, and Judges Wilkinson, Niemeyer, Motz, Traxler, King, Shedd, Agee, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris

Argument Date: 05/11/2016

Date of Issued Opinion: 02/21/2017

Docket Numbers: No. 14-1945

Decided: Affirmed by published opinion.

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law

Counsel: ARGUED: John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Matthew John Fader, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: T. Sky Woodward, James W. Porter, III, Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Brian E. Frosh, Attorney General of Maryland, Jennifer L. Katz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan; Jason Van Dyke, THE VAN DYKE LAW FIRM, PLLC, Plano, Texas, for Amicus Traditionalist Youth Network, LLC. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Erica N. Peterson, Gilbert Dickey, Assistant Attorneys General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Luther Strange, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Michael C. Geraghty, Attorney General of Alaska, Juneau, Alaska, for Amicus State of Alaska; Thomas C. Horne, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Pam Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; James D. Caldwell, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Chris Koster, Attorney General of Missouri, Jefferson City, Missouri, for Amicus State of Missouri; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Jon Bruning, Attorney General of Nebraska, Lincoln, Nebraska, for Amicus State of Nebraska; Gary King, Attorney General of New Mexico, Santa Fe, New Mexico, for Amicus State of New Mexico; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; E. Scott Pruitt Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Martin J. Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Greg Abbott, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Peter K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming, for Amicus State of Wyoming; Jack Conway, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky. Charles J. Cooper, David H. Thompson, Peter A. Patterson, John D. Ohlendorf, COOPER & KIRK, PLLC, Washington, D.C., for Amicus National Rifle Association of America, Inc. C.D. Michel, Clinton B. Monfort, Anna M. Barvir, MICHEL & ASSOCIATES, P.C., Long Beach, California, for Amici CRPA Foundation, Gun Owners of California, Colorado State Shooting Association, Idaho State Rifle & Pistol Association, Illinois State Rifle Association, Kansas State Rifle Association, League of Kentucky Sportsmen, Inc., Nevada Firearms Coalition, Association of New Jersey Rifle & Pistol Clubs, New Mexico Shooting Sports Association, New York State Rifle & Pistol Association, Texas State Rifle Association, Vermont Federation of Sportsmen's Clubs, and Vermont Rifle & Pistol Association. Michael Connelly, U.S. JUSTICE FOUNDATION, Ramona, California, for Amicus U.S. Justice Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, and Institute on the Constitution. Brian S. Koukoutchos, Mandeville, Louisiana; James B. Astrachan, ASTRACHAN GUNST THOMAS, P.C., Baltimore, Maryland, for Amici Congress of Racial Equality, National Center for Public Policy Research, Project 21, Pink Pistols, Women Against Gun Control, and The Disabled Sportsmen of North America. Dan M. Peterson, DAN M. PETERSON, PLLC, Fairfax, Virginia, for Amici The Law Enforcement Legal Defense Fund, Law Enforcement Action Network, Law Enforcement Alliance of America, International Law Enforcement Educators and Trainers Association, and Western States Sheriffs' Association. Jonathan K. Baum, Chicago, Illinois, Mark T. Ciani, KATTEN MUCHIN ROSENMAN LLP, New York, New York, for Amici Law Center to Prevent Gun Violence and Marylanders to Prevent Gun Violence, Inc. Jonathan E. Lowy, Kelly Sampson, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C.; Elliott Schulder, Suzan F. Charlton, Amit R. Vora, Catlin Meade, Stephen Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Brady Center To Prevent Gun Violence. Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Claude S. Platton, Assistant Solicitor General, Eric T. Schneiderman, Attorney General of the State of New York, for Amicus State of New York; Kamala D. Harris, Attorney General of California, Sacramento, California, for Amicus State of California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut, for Amicus State of Connecticut; Russell A. Suzuki, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois, for Amicus State of Illinois; Thomas J. Miller, Attorney General of Iowa, Des Moines, Iowa, for Amicus State of Iowa; Martha Coakley, Attorney General of Massachusetts, Boston, Massachusetts, for Amicus Commonwealth of Massachusetts; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon, for Amicus State of Oregon; Karl A. Racine, Attorney General of The District of Columbia, Washington, D.C., for Amicus The District of Columbia. J. Adam Skaggs, Mark Anthony Frasetto, EVERYTOWN FOR GUN SAFETY, New York, New York; Deepak Gupta, Jonathan E. Taylor, Neil K. Sawhney, GUPTA WESSLER PLLC, Washington, D.C., for Amicus Everytown for Gun Safety.

Author of Opinion: Judge King

Concurring Opinion: Judge Wilkinson

Opinion Concurring in Part: Judge Diaz

Dissenting Opinion: Judge Traxler

Opinion Dissenting in Part and Concurring in Part: Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/27/2017 01:13 PM     4th Circuit     Comments (0)  

  Ivey (Trustee) v. First Citizens Bank & Trust Co. -- Fourth Circuit
Ponzi Schemers Beware: Wire Deposits and Bank Transfers NOT "Transfers" Within Meaning of Bankruptcy Code

Areas of Law: Bankruptcy Law

Issue Presented: Whether deposit and wire transfers to a defendant's personal checking account are "transfers" within the meaning of § 101(54) of the Bankruptcy Code and, if so, whether they are avoidable as fraudulent transfers under 11 U.S.C. § 548(a)(1)(A).

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that a debtor's deposit and wire transfers did not constitute "transfers" within the meaning of the Bankruptcy Code because the debtor continued to possess, control, and have custody over his funds even after he made deposits to his First Citizens Bank account. Thus, any funds in the account were at all times part of the bankruptcy estate.

Extended Summary: In early 2010, a group of eight individual creditors filed an involuntary petition in bankruptcy court against debtor Whitley for relief. Involuntary petitions are filed against debtors so that the debtor may not deplete the resources available to pay creditors. The petition was granted on March 30, 2010. In 2012, the trustee, Charles Ivey, filed a complaint on behalf of the bankruptcy estate against First Citizens Bank, where Whitley held a personal checking account in his name. Whitley used this account to deposit funds, receive wire transfers, and write checks as part of a Ponzi scheme he was involved in. These checks, deposits, and transfers were written or made in the two years before the filing of the involuntary bankruptcy petition. The trustee alleged that some of the deposits and wire transfers into the account, including personal and cashier's checks and wire transfers from Whitley's "investors," constituted transfers from Whitley to the Bank that were made with the actual intent to hinder, delay, or defraud creditors. The trustee argued that they were, therefore, avoidable as fraudulent transfers under 11 U.S.C. § 548(a)(1)(A). A fraudulent transfer is an attempt to avoid debt by transferring money to another person or company, in this case under the trustee's theory, to First Citizens Bank. The bankruptcy court granted summary judgment for First Citizens Bank holding that although the transactions at issue were transfers, the transfers did not diminish the bankruptcy estate and did not place the funds beyond the reach of creditors, so they were not avoidable as fraudulent transfers. The district court affirmed.

In the Fourth Circuit, the trustee alleged again that the transactions should be avoided as fraudulent transfers made from Whitley to the Bank with the actual intent to hinder, delay, or defraud Whitley's creditors. The trustee also argued that the bankruptcy and district courts erred by requiring that the transactions diminish the bankruptcy estate in order to qualify as fraudulent transfers under § 548(a)(1)(A). The trustee argued that where actual fraudulent intent was present, there is no requirement that the transactions diminish or move property away from the bankruptcy estate. First Citizens Bank argued that the bankruptcy court and district court properly required that transactions diminish the bankruptcy estate because § 548(a)(1)(A) requires that an avoidable transfer be one "of an interest of the debtor in property," which the Bank argued federal courts have interpreted to mean that the property would have been in the estate but for the transfer.

The Fourth Circuit noted that it asked the parties to address at oral argument the threshold question of whether the transactions at issue were transfers within the meaning of § 101(54) of the Bankruptcy Code, so that it could proceed to considering whether the transactions were avoidable transfers under § 548(a)(1)(A). The trustee argued that the transactions did not constitute transfers under § 101(54)'s broad definition and contended that depositing and accepting funds into a bank account, as Whitley did, constitutes parting with property under § 101(54) because of the Bank's access to and interest in the funds. Additionally, the trustee alleged that the transactions should be avoided as fraudulent transfers because they were made from Whitley to the Bank with the actual intent to hinder, delay, or defraud Whitley's creditors. First Citizens Bank countered, arguing that no parting with the property occurred. The Bank argued that there was no change to Whitley's rights and interests in the property after the deposits and wire transfers because Whitley retained access to his account; he could withdraw funds at will and the funds in the account were available to the bankruptcy estate.

The court held that the transactions at issue did not constitute transfers within the meaning of the Bankruptcy Code. Under 11 U.S.C. § 548(a)(1)(A), a "trustee may avoid any transfer that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily" made those transfers with the actual intent to hinder, delay, or defraud any creditor. The Bankruptcy Code defines "transfer" as any "mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with . . . (i) property; or (ii) an interest in property." The Fourth Circuit observed that Congress wanted to define "transfer" as broadly as possible in the Bankruptcy Code. Specifically, the Fourth Circuit noted that because Congress defined "transfer" broadly, courts have been divided on whether § 101(54)'s definition of "transfer," includes a debtor's deposits into his own unrestricted bank account in the regular course of business. In determining whether Whitley's "transfers" fell within the meaning of § 101(54), the Fourth Circuit followed its decision in Citizens' Nat. Bank of Gastonia, N.C. v. Lineberger. Due to this precedent as well as the decisions of sister circuits, the Fourth Circuit determined that the better interpretation of "transfer" does not include a debtor's regular deposits into his or her own unrestricted checking account. Specifically, the Fourth Circuit determined that when Whitley made his deposits, he continued to possess, control, and have custody over his funds. Thus, any funds in the account were at all times part of the bankruptcy estate. The Fourth Circuit affirmed the district court's judgment was affirmed.

To read the full opinion, click here.

Panel: Chief Judge Gregory and Judges Wynn and Davis

Argument Date: October 26, 2016

Date of Issued Opinion: January 31, 2017

Docket Number: No. 15-2209

Decided: Affirmed by published opinion

Case Alert Author: Dena Robinson, Univ. of Maryland Carey School of Law

Counsel: Charles Marshall Ivey, III, IVEY, MCCLELLAN, GATTON & SIEGMUND, L.L.P., Greensboro, North Carolina, for Appellant. Gary J. Rickner, WARD AND SMITH, P.A., Greenville, North Carolina, for Appellee. ON BRIEF: Charles Marshall Ivey, IV, IVEY, MCCLELLAN, GATTON & SIEGMUND, L.L.P., Greensboro, North Carolina, for Appellant. Benjamin E. F. B. Waller, WARD AND SMITH, P.A., Greenville, North Carolina, for Appellee.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/27/2017 12:36 PM     4th Circuit     Comments (0)  

March 24, 2017
  Heyer v. U.S. Bureau of Prisons -- Fourth Circuit
No ASL Interpreter, No Videophone: Deaf Prisoner Wins First and Fifth Amendment Claims

Areas of Law: First Amendment, Fifth Amendment

Issue Presented: Whether the district court erred in granting summary judgment to the defendant on the plaintiff's Fifth Amendment claims for failure to provide ASL interpreters for medical appointments and the mental health treatment in the Commitment and Treatment Program and on the plaintiff's First Amendment claim for failure to provide access to a videophone.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court erred in granting summary judgment in favor of the defendant on the plaintiff's First and Fifth Amendment claims. First, the defendant's failure to provide ASL interpreters for the plaintiff's medical appointments amounted to deliberate indifference to his medical needs in violation of the Fifth Amendment. Second, the defendant's post-litigation decision to provide interpreters for some aspects of Heyer's treatment in the Commitment and Treatment Program provides no basis for rejecting Heyer's Fifth Amendment claim on the merits. Third, the defendant's failure to provide the plaintiff with access to a videophone improperly restricts his First Amendment rights to communicate with those outside the prison. Therefore, the Fourth Circuit vacated the district court's order in part and remanded for further proceedings.

Extended Summary: Thomas Heyer ("Heyer") is a deaf individual, who communicates primarily through American Sign Language ("ASL") and has extremely limited proficiency in spoken or written English. Heyer was previously convicted of possessing child pornography. In December 2008, the government filed a petition seeking to detain Heyer under the Adam Walsh Child Protection and Safety Act (the "Adam Walsh Act"). Since the filing, Heyer has remained in civil custody at the federal correctional institution in Butner, North Carolina. After a hearing on the petition in March 2012, the district court ordered Heyer detained as a sexually dangerous person.

Under the Adam Walsh Act, Heyer will remain in civil custody until such time as the government determines that his "condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment." 18 U.S.C. § 4248(e). Adam Walsh Act detainees at Butner are expected to participate in the "Commitment and Treatment Program" (the "CT Program"), which includes mental health treatment in group and individual settings and other activities. Heyer began participating in the CT Program in July 2012.

Since December 2008, Heyer has made multiple requests for ASL interpreters. The prison officials refused to provide qualified interpreters for any purpose, including scheduled medical appointments and medical emergencies, until late 2012. Heyer has had multiple seizures during his time at Butner. In 2010, the prison officials assigned another inmate, who does not know ASL, to act as Heyer's "inmate companion person" to help Heyer communicate with others. The prison officials also required Heyer to rely on this "companion" during medical interactions. As to the CT Program, the prison officials concluded that Heyer's inmate companion would be "inadequate" to facilitate Heyer's participation, but did not provide Heyer with ASL interpreters for the CT Program until September 2012.

In 2011, Heyer filed a lawsuit against the United States Bureau of Prisons ("BOP"). Heyer alleged, among other claims, that (1) the BOP violated Heyer's Fifth Amendment rights by failing to provide ASL interpreters for medical appointments and for the mental health treatment provided through the CT Program, and (2) the BOP violated Heyer's First Amendment rights by failing to provide access to a videophone. The district court granted summary judgment in favor of BOP on the claims.

With respect to his first Fifth Amendment claim, Heyer contended that he, a civil detainee, is entitled under the Fifth Amendment to at least the same protection prisoners receive under the Eighth Amendment. As deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment, Heyer argued that the failure to provide ASL interpreters amounted to deliberate indifference to his medical needs and thus violated his Fifth Amendment rights.

The Fourth Circuit agreed and held that Heyer's evidence was sufficient to support a finding of deliberate indifference. The deliberate indifference standard has two components: the plaintiff must show (1) that he had serious medical needs, and (2) that the defendant acted with deliberate indifference to those needs. See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). First, the Fourth Circuit found that Heyer, who suffered multiple seizures during his confinement, had serious medical needs. In addition, citing Farmer v. Brennan, 511 U.S. 825, 837 (1994), the court found that the absence of ASL interpreters during medical appointments exposed Heyer to "a substantial risk of serious harm." Second, the Fourth Circuit found that BOP acted with deliberate indifference to those needs by knowing Heyer's deafness since his arrival at Butner in 2008, knowing his need for an ASL interpreter for communication and treatment, knowing his inmate companion was inadequate to ensure understanding, and disregarding his requests for ASL interpreters. Thus, the Fourth Circuit concluded that the district court erred in granting summary judgment in favor of the BOP on the first Fifth Amendment claim.

With respect to his second Fifth Amendment claim, Heyer contended that BOP failed to provide ASL interpreters for the mental health treatment in the CT Program. The district court granted summary judgment for BOP, explaining that BOP had agreed to provide ASL interpreters for Heyer's participation in most aspects of the CT Program. The Fourth Circuit disagreed.

The Fourth Circuit observed that Heyer sought a court ruling that, because the length of his confinement is dependent in large part on BOP's assessment of his mental health, BOP is constitutionally obliged to provide interpreters for all aspects of the mental-health treatment it offers to Adam Walsh Act detainees. Heyer also sought an injunction ordering BOP to provide the necessary interpreters. Thus, the court held that BOP's post-litigation decision to provide interpreters for some aspects of Heyer's treatment clearly provided no basis for rejecting Heyer's claim on the merits. Accordingly, the court concluded that the district court erred by granting summary judgment in favor of BOP on this claim as well.

With respect to his First Amendment claim, Heyer contended that BOP's failure to provide him with access to a videophone improperly restricted his First Amendment right to communicate with those outside the prison. The Fourth Circuit agreed. In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court concluded that a prison policy or regulation that "impinges on inmates' constitutional rights . . . is valid if it is reasonably related to legitimate penological interests," and the Court identified four factors to consider when determining the reasonableness of the policy.

To start with, the Fourth Circuit held that BOP's TTY-only policy did impinge on Heyer's First Amendment rights. The court found that Heyer cannot effectively communicate through the TTY device because it requires proficiency in written English, in which Heyer does not possess.

The Fourth Circuit then determined whether that policy "is reasonably related to legitimate penological interests" based on the four-factor test in Turner. In discussing the first factor, the Fourth Circuit found that there is not a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Although BOP argued that its TTY-only policy furthered its legitimate interest in maintaining prison security and that videophone conversations must go through its secure Inmate Telephone System, the Fourth Circuit noted that the TTY system currently in place operates on an unsecured line in a private staff office. Also, as to whether monitoring of a videophone conversation would be more demanding of staff time than the monitoring of the TTY conversations that is already being done, the Fourth Circuit held that the fact finder could question whether a videophone system would in fact present the difficulties asserted by BOP.

Second, the Fourth Circuit held that Heyer has no alternate effective means of communication. Although BOP argued that alternative means of communicating (TTY, emails, written letters, and in-person visits) with those outside Butner were available to Heyer, the Fourth Circuit found all (except in-person visitation) involve the use of written English, in which Heyer has extremely limited proficiency. In addition, the court found that the availability of in-person visitation is of little help in emergencies or other situations where there is a need for immediate contact.

Third, the Fourth Circuit held that accommodating Heyer's needs would have a minimal effect on guards or other inmates or on the prison's allocation of resources. The court found that it was questionable that a videophone would require creation of a new, secure IT infrastructure, as BOP claimed. Moreover, nothing in the record indicated why a system-wide solution, as BOP claimed, would be required.

Finally, the Fourth Circuit found that there is a "ready alternative" to the challenged policy. Given Heyer's evidence of the minimal cost of a videophone and the ease with which security concerns could be mitigated, the court held that a fact finder could reasonably conclude that BOP's refusal to provide a videophone is an exaggerated response to the perceived security concerns. Accordingly, the Fourth Circuit concluded that the district court erred by granting summary judgment to BOP on the First Amendment claim.

To read the full opinion, click here.

Panel: Judges Motz, Traxler, and Floyd

Argument Date: 10/26/2016

Date of Issued Opinion: 02/23/2017

Docket Number: No. 15-6826

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Ian S. Hoffman, ARNOLD & PORTER LLP, Washington, D.C., for Appellant. Robert J. Dodson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. ON BRIEF: Deborah Golden, Elliot Mincberg, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C.; David B. Bergman, ARNOLD & PORTER LLP, Washington, D.C., for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Jennifer D. Dannels, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. Marc Charmatz, Howard A. Rosenblum, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF, Silver Spring, Maryland, for Amicus Curiae.

Author of Opinion: Circuit Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/24/2017 03:48 PM     4th Circuit     Comments (0)  

March 20, 2017
  Sixth Circuit: nondisclosure of State's payment to key witness violates due process
Headline: Prosecution's nondisclosure of witness's payment for testimony violates defendant's due-process rights under Brady v. Maryland.

Case: Thomas v. Westbrooks

Area of law: Criminal procedure, constitutional law, due process.

Issue presented: Whether the state violated the defendant's right to due process under Brady v. Maryland when the prosecutor suppressed evidence that the key witness had received payment for her testimony.

Brief summary: The state's key witness in Thomas's murder trial received $750 for her testimony. The prosecution failed to disclose this evidence during trial and failed to correct on the record the witness's false testimony that she did not receive any payment. Thomas argued that this violated his due-process rights under Brady, which prohibits the state from suppressing material evidence that is favorable to the defendant. The Sixth Circuit found that the evidence of the witness's payment was material under the circumstances. It reasoned that a large payment made in direct connection to the case in which the witness is testifying presents a pecuniary bias that is likely to weigh heavily on a juror's assessment of the witness's credibility. The Court also emphasized that the focus with a Brady claim is not on whether the other evidence at trial was sufficient to convict the defendant, but whether suppression of this evidence made the defendant's trial fundamentally unfair.

Extended summary: In 1997, Thomas shot and robbed an armored-truck driver. A federal court convicted Thomas of interfering with interstate commerce and other firearm-related crimes, sentencing him to life in prison. After the truck driver died of his injuries, the State of Tennessee charged him with felony murder. A jury convicted him and sentenced him to death.

The key witness at both trials was Angela Jackson, who was Thomas's girlfriend at the time of the crime. Before the murder trial began, the FBI paid Jackson $750 as a reward for her testimony. Her receipt of this payment was noted in the files that federal authorities gave state prosecutors to use in their case.

The state prosecutor did not inform Thomas of this payment. On the contrary, the prosecutor continuously emphasized during the murder trial that Jackson was testifying because she believed it was the "'the right thing to do.'" The prosecutor also failed to correct Jackson on the record when she twice perjured herself by testifying that she didn't receive any money in exchange for her testimony.

On appeal, Thomas claimed that the state's nondisclosure of Jackson's payments violated his due-process rights established in the U.S. Supreme Court case Brady v. Maryland. Brady held that a prosecutor's suppression of evidence violates a defendant's due-process rights if (1) the evidence is favorable to the defendant, (2) the evidence is either intentionally or accidentally suppressed by the state, and (3) the suppression results in prejudice to the defendant. The state conceded that the first two Brady elements were met, leaving only the question of prejudice.

Under the Brady test, prejudice results when the suppressed evidence is material, even if that evidence is only relevant for impeachment purposes. Evidence is material when, considering all relevant evidence, the suppressed evidence deprived the defendant of a fair trial with a trustworthy verdict. A defendant's burden for meeting this standard is between a mere possibility and a preponderance of the evidence that disclosure of the suppressed evidence would have resulted in an acquittal.

The Sixth Circuit held that evidence of Jackson's payment was material under the circumstances. The Court reasoned that this case was factually similar to a previous Sixth Circuit case, Robinson v. Mills, where the prosecution's key witness had previously received $70 for being a confidential informant - all, however, for cases that had nothing to do with the defendant's. Nonetheless, the Court held that the prosecution's failure to disclose these facts warranted relief under Brady because it revealed a potential bias relevant to the witness's credibility and truthfulness. Applying Robinson, the Sixth Circuit found that the $750 payment to witness Angela Jackson for testifying against Thomas was certainly material if the $70 payment in Robinson for past informant services was material.

The state argued that there was sufficient evidence to convict Thomas without Jackson's testimony, making anything related to her testimony, like the fact that she received payment, immaterial. But the Court reiterated that a Brady claim is meant to protect a defendant's right to a fair trial; therefore, the focus is not on whether the defendant could have been convicted if the suppressed evidence had been presented, but whether the suppression of the evidence made the defendant's trial fundamentally unfair. Furthermore, the Court rejected the state's factual argument that Jackson's testimony did not weigh heavily on the jury's decision to convict Thomas. Jackson provided credible testimony on key aspects of the prosecution's case, such as placing Thomas at the crime scene and linking him to the driver of the getaway car used after the robbery.

The state also argued that the defense had been able to effectively impeach Jackson on her inconsistent statements and her own past bad acts, and therefore evidence of her payment was immaterial. The Court, however, stressed the difference between impeachment based on pecuniary bias and impeachment based on other grounds. The Court found that jurors are more likely to distrust witnesses whose testimony is linked to a financial gain.

Since the Court found that Thomas was entitled to relief on his Brady claim, the Court found it unnecessary to determine whether the prosecutor engaged in prosecutorial misconduct for failing to correct Jackson's perjurious testimony that she never received a payment in exchange for her participation.

Panel: Circuit Judges Gilbert S. Merritt, Eugene E. Siler, Jr., and Bernice B. Donald.

Date of issued opinion: February 24, 2017

Docket number: 15-5399

Decided: Reversed and remanded.

Counsel: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, Kevin Wallace, Elizabeth Cate, Mollie Richardson, WINSTON & STRAWN LLP, New York, New York, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. Mark A. Fulks, BAKER DONELSON BEARMAN CALDWELL & BERKOWTIZ, P.C., Johnson City, Tennessee, for Amicus Curiae.

Author of opinion: Circuit Judge Gilbert S. Merritt.

Case alert author: Andrea Randall, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/17a0045p-06.pdf

Edited: 03/23/2017 at 12:42 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/20/2017 11:52 AM     6th Circuit     Comments (0)  

March 19, 2017
  Gil v. Sessions - Second Circuit
Headline: Second Circuit denies petition to review Board of Immigration Appeals decision denying claim of derivative citizenship

Area of Law: Immigration Law

Issue Presented: Whether the petitioner, who was born out of wedlock in the Dominican Republic to two Dominican citizens, could claim derivative citizenship as a legitimized "child" of his naturalized father under the Immigration and Nationality Act.

Brief Summary: The petitioner was born in the Dominican Republic to unwed Dominican citizens. He petitioned for review of a Board of Immigration Appeals ("BIA") decision that found him ineligible for derivative citizenship through his naturalized father and, accordingly denied his motion to terminate removal proceedings initiated based upon his two prior convictions. To be a "child" eligible for derivative citizenship under § 101(c)(1) of the Immigration and Nationality Act, an individual born out of wedlock must be "legitimated" under the Act by the age of 16. The Second Circuit affirmed the findings of the BIA and held that petitioner failed to gain legitimated status under Dominican or New York law before he turned 16 years old and, therefore, was not eligible for derivative citizenship.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...52cfa3ec46d/1/hilite/

Extended Summary: Gil was born in the Dominican Republic in 1968. His parents, unwed, were both Dominican citizens. In 1978, at nine years old, Gil came to the United States to live with his father as a lawful permanent resident. His father became a naturalized United States citizen in November 1980 when Gil was 11 years old and Gil received a Certificate of Citizenship at this time on the basis that he derived citizenship as a result of his father's naturalization. Gil was convicted of first-degree robbery in 1987 and of a controlled substance offense in federal court in 1995.

Thereafter, in 2010, the United States Citizenship and Immigration Services determined that Gil's Certificate of Citizenship was unlawfully or fraudulently obtained because he was not a qualifying "child" under the Immigration and Nationality ("INA") requirement for derivative citizenship. His Certificate of Citizenship was therefore cancelled and the Department of Homeland Security instituted removal proceedings against Gil based upon his prior convictions.
On November 18, 2013, an Immigration Judge ("IJ") rejected Gil's motion to terminate the removal proceedings based upon a claim of derivative citizenship, finding Gil was not "legitimate" under Dominican or New York law before reaching the age of sixteen as specified in the INA. The Board of Immigration Appeals (BIA) affirmed the IJ's ruling and Gil petitioned the Second Circuit for review of the BIA decision.

The INA § 321(a) addresses when a "child" born outside of the United States to alien parents may become a United States citizen through derivative citizenship. INA § 101(c)(1) then defines a "child" under the Act as "includ[ing] a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile if such legitimation . . . takes place before the child reaches the age of 16 years . . . and the child is in the legal custody of the legitimating . . . parent . . . at the time of such legitimation." 8 U.S.C. § 101(c)(1). While not defined in the Act, the BIA has interpreted "legitimated" to refer to a child born out of wedlock who has been accorded legal rights that are identical to those enjoyed by a child born in wedlock. The issue of this case turned on whether, before Gil turned 16 years old, Dominican or New York had eliminated all legal distinctions between children born in and out of wedlock.

The Second Circuit ruled that Gil had not "legitimated" by the time he was 16 years old under Dominican law. A law was enacted in 1994 that changed Dominican law to eliminate all legal distinctions between children born in wedlock and those born out of wedlock, however Gil was 26 years old when this law took effect and therefore, the court found, was not a legitimated child by the age of 16 as required by the Act. The Second Circuit further ruled that Gil was not a legitimated child under New York law finding that New York law distinguishes between children born in and out of wedlock for inheritance purposes, citing to N.Y. Est. Powers & Trusts Law § 4-1.2(b) (McKinney 2010). Concluding Gil did not "legitimate" by the age of 16 years old under Dominican or New York law, and accordingly was not a "child" under § 101(c)(1) of the INA. the Second Circuit agreed with that he was not eligible for derivative citizenship through his father's naturalization. Accordingly, the Second Circuit denied Gil's petition for review of the BIA's decision that rejected his claim of derivative citizenship and denied his motion to terminate his removal proceedings.

To read the full opinion, visit,
http://www.ca2.uscourts.gov/de...52cfa3ec46d/1/hilite/

Panel: Circuit Judges Walker, Hall, and Chin

Argument Date: 10/31/2016

Date of Issued Opinion: 3/17/2017

Docket Number: 15-3134-ag

Decided: Petition Denied

Case Alert Author: Leigh G. Wellington

Counsel: Joshua E. Bardavid, New York, New York for Petitioner; Lisa M. Damiano, Trial Attorney, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C. for Respondent.

Author of Opinion: Circuit Judge Chin

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Diamond @ 03/19/2017 11:33 AM     2nd Circuit     Comments (0)  

March 16, 2017
  Beck v. McDonald -- Fourth Circuit
"That Alone Is Not Enough" -- Fourth Circuit Takes Stand on Standing in Data Breach Case

Areas of Law: Civil Procedure, Constitutional Law

Issue Presented: Whether a plaintiff can establish an Article III injury-in-fact based on an increased risk of identity theft.

Brief Summary: In consolidated appeals from two class action suits alleging injury from a data breach, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of the cases for lack of subject matter jurisdiction. The Plaintiffs alleged they had been harmed by the William Jennings Bryan Dorn Veterans Affairs Medical Center's ("Dorn VAMC") loss of a laptop and files containing patients' medical records and personal information. The court found the alleged harm was too speculative and hypothetical to establish the "certainly impending" injury-in-fact that is required for standing. The Fourth Circuit also rejected the Plaintiffs' argument that standing existed based on the "substantial risk" that harm will occur as a result of the data breach. With regard to this argument, the court refused to infer that such a risk existed when an organization offers remedial free credit monitoring services.

Extended Summary: This case arose from consolidated appeals from two class actions (Beck v. McDonald and Watson v. McDonald) filed by veterans who received medical treatment and health care at the Dorn VAMC. The Plaintiffs sought money damages and declaratory and injunctive relief under the Privacy Act of 1974 ("Privacy Act") and the Administrative Procedures Act ("APA").

In both cases, the Plaintiffs attempted to establish standing and sufficient injury-in-fact based on the potential damages that could arise from the VAMC's loss of information. In the first class action suit, filed by Richard Beck and Lakreshia Jeffery, the Plaintiff's claims were based on the loss of a laptop computer containing unencrypted, confidential patient information of 7,400 patients. While the Beck litigation was still pending, Beverly Watson brought a class action lawsuit on behalf of the over 2000 individuals whose medical files were lost or stolen while being transported to a long term storage facility. The laptop contained patient's names, birth dates, the last four digits of social security numbers and physical descriptions. The files contained patient's names, full social security numbers, and medical diagnoses. Both the computer and the files have never been recovered and all parties affected by the loss of the data were offered one year of free credit monitoring.

In both cases, the Plaintiffs attempted to establish standing and injury-in-fact by arguing that the loss of information by the Dorn VAMC violated the Privacy Act, and caused Plaintiffs "embarrassment, inconvenience, unfairness, mental distress, and the threat of current and future substantial harm from identity theft and other misuse." Additionally, Plaintiffs argued that the risk of identity theft required them to frequently monitor their credit reports, bank statements, health insurance reports, purchase credit watch services, and shift financial accounts.

In Beck, the district court denied the Defendant's' initial motion to dismiss so the Plaintiff could conduct discovery. After discovery concluded, the Defendants again made a motion to dismiss, which was granted. In granting the motion, the district court found that the Plaintiffs had not submitted enough evidence to establish an issue of material fact that they faced a "certainly impending" risk of identity theft. In Watson, the district court did not even allow for discovery, and granted the Defendant's motion to dismiss.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of both cases for lack of subject matter jurisdiction. The court held that the Plaintiffs' alleged harm was too speculative and hypothetical to establish "certainly impending" injury-in-fact. In dismissing both cases, the Fourth Circuit noted that in other circuits where plaintiffs can establish injury-in-fact based on an increased risk of future identity theft, the plaintiff also alleged that "the data thief intentionally targeted the personal information comprised in the data breaches."

The Fourth Circuit also rejected the Plaintiffs' argument that they had standing based on a "substantial risk" that harm will occur. The Plaintiffs argued there was a substantial risk that harm would occur because generally 33% of health related data breaches result in identity theft. The Fourth Circuit, however, found that if that general point was true, than 66% of the veterans impacted by the breach would suffer no harm at all. The Fourth Circuit also declined to infer a substantial risk of harm exists if an organization offers free credit monitoring services, because that inference would discourage organizations from offering assistance. Finally, the Fourth Circuit found that the Plaintiffs did not suffer an injury-in-fact because they incurred a cost to protect against speculative threat because "self-imposed harms can not confer standing."

Finally, in denying the Plaintiffs injunctive relief request, the Fourth Circuit found that the Plaintiffs did not have standing under the APA. This was because allegations of the Dorn VAMC's past Privacy Act violations only demonstrated that the Plaintiffs could be victimized by a future data breach, not that there is an immediate danger that they will be victimized by a future data breach.

To read the full opinion, click here.

Panel: Judges Niemeyer and Diaz, and District Judge Keeley

Argument Date: 9/20/2016

Date of Issued Opinion: 2/6/2017

Docket Numbers: No. 15-1395

Decided: Affirmed by published opinion

Case Alert Author: Fernando Kirkman, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Douglas J. Rosinski, Columbia, South Carolina, for Appellants. Sonia Katherine McNeil, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: D. Michael Kelly, Bradley D. Hewett, MIKE KELLY LAW GROUP, LLC, Columbia, South Carolina, for Appellants. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William N. Nettles, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellees.

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/16/2017 01:40 PM     4th Circuit     Comments (0)  

March 14, 2017
  Iraq Middle Market Development Foundation v. Harmoosh, et al. - Fourth Circuit
Fourth Circuit Applies Basic Contractual Right to Claim for Recognition of Foreign Civil Judgment

Areas of Law: Contracts

Issue Presented: Whether the Maryland Recognition Act's arbitration clause exception applies if a party forgoes the right to arbitrate by participating in judicial proceedings in a foreign court.

Brief Summary: In a published opinion, the Fourth Circuit vacated the grant of summary judgment in favor of the appellee and remanded the case to the United States District Court for the District of Maryland. In a lawsuit brought by the appellant-creditor to recognize a civil judgment against the appellee-debtor from an Iraqi court, the district court granted a motion for summary judgment upon the appellee's invocation of an arbitration clause in the loan agreement. Upon appeal of this ruling, the Fourth Circuit held there was still a genuine issue of material fact as to whether the appellee voluntarily waived the arbitration clause during judicial proceedings in the Iraqi court. Because the Fourth Circuit found that such a voluntary waiver in a foreign court is not contrary to the disputed arbitration clause for the purposes of the Maryland Recognition Act, the appellee was not entitled to summary judgment by the district court.

Extended Summary: The appellant, Iraq Middle Market Development Foundation, is a non-profit corporation that makes and services loans to businesses in Iraq. In 2006, Iraq Middle Market agreed to lend $2 million to Jawad Al-Harmoosh for his company, AGTTT. A managing partner at AGTTT, Mohammad Harmoosh, signed a promissory note guaranteeing repayment of the loan. Harmoosh is a dual citizen of Iraq and the United States, and lives in Maryland. The loan agreement contained an arbitration clause which required that all legal disputes be "finally and exclusively settled by arbitration."

In 2010, Iraq Middle Market sued the appellees in federal court in Maryland for breach of contract after the appellees refused to repay the loan. The appellees moved to dismiss the claim by invoking the loan agreement's arbitration clause. The district court dismissed the suit, but thereafter the appellees did not move to compel arbitration. Subsequently, in 2014, the appellant filed another civil action against the appellees to collect on the promissory note. This time, the appellant did so in an Iraqi court. The appellees asserted multiple affirmative defenses, but the parties disagreed as to whether they ever raised the arbitration clause in that proceeding. Although invocation of an arbitration clause would have deprived the Iraqi court of jurisdiction, the suit was litigated on the merits through final judgment. The Iraqi court found in favor of the appellant and awarded $2 million in damages. That judgment was subsequently affirmed by two appellate courts in Iraq.

Upon that decision, appellant brought the present complaint seeking recognition of the Iraqi judgment under the Maryland Uniform Foreign Money-Judgments Recognition Act. Under that act, a foreign judgment regarding a sum of money is generally conclusive between the parties if it is "final, conclusive, and enforceable where rendered." Md. Code, Courts and Judicial Proceedings, § 10-702 & 10-703. However, the act does recognize exceptions to this general rule, including if "the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute was to be settled out of court." Md. Code, Courts and Judicial Proceedings, § 10-704(b)(4). The appellee invoked this statutory exception in a motion for summary judgment, which the district court granted because, in the court's view, the Iraqi judgment was "contrary to an arbitration provision."

The Fourth Circuit reviewed the grant of summary judgment de novo and first examined whether the disputed exception applies if a party forgoes its right to arbitrate by participating in judicial proceedings in a foreign court. This issue is a question of state law that had not yet been addressed by the Maryland Court of Appeals. Therefore, because the federal court had diversity jurisdiction over the case, its role was "to anticipate how [Maryland's highest court] would rule on this question."

The appellee contended that this exception permits courts to decline recognition of a foreign judgment if the dispute should not have been litigated at all under the terms of an arbitration clause. The Fourth Circuit found this argument to be overly broad. The court did not believe the state legislature would have intended for courts to enforce contractual rights the parties had waived or resolved in front of a foreign court. The Fourth Circuit had not addressed this issue before, but those courts that had considered similar provisions recognized that parties may waive such exceptions. Furthermore, the parallel federal act on recognition of foreign judgments, largely adopted by Maryland in creating the act at issue herein, allowed for either express or implied waiver of out-of-court remedies. The Fourth Circuit also found that appellee's argument was at odds with Maryland's common law of contracts, in which arbitration clauses can be waived the same as any other contractual right. Finally, the Fourth Circuit felt that appellee's arguments would frustrate the purpose of the Maryland Recognition Act, specifically international comity and mutual recognition of foreign judgments.

Therefore, the Fourth Circuit held that "judicial proceedings in a foreign court are not 'contrary to' an arbitration clause for the purposes of the Maryland Recognition Act if the parties choose to forego their rights to arbitrate by participating in those proceedings." In that event, the Fourth Circuit held that the exception invoked by the appellee simply would not apply.

With that new rule in mind, the Fourth Circuit considered whether the appellant had raised genuine issues of material fact on the issue of appellee's waiver of his arbitration rights. In this instance, waiver occurred only if appellee "so substantially utilize[d] the litigation machinery that to subsequently permit arbitration would prejudice" the appellant. Appellee did not dispute that appellant would lose entitlement to recover on a $2 million judgment if the appellee were allowed to assert the right to arbitrate.

The Fourth Circuit found that the appellant introduced sufficient evidence to preclude summary judgment. Specifically, the appellant showed that the appellee was aware of the right to arbitrate, as he had raised it in defense of the first lawsuit in Maryland, but still voluntarily litigated the dispute in Iraq. Both sides introduced conflicting evidence as to whether the issue of the arbitration clause was ever raised as a defense in the Iraqi court proceedings. Consequently, the Fourth Circuit found there were still genuine issues of material fact as to whether the appellee waived his right to arbitrate. Therefore, the appellee was not entitled to summary judgment and that grant was vacated, with the case remanded to the district court to resolve the factual questions still at issue in the case.

To read full opinion, click here.

Panel: Judges Wilkinson, Motz, and Floyd

Argument Date: 12/7/2016

Date of Issued Opinion: 2/2/2017

Docket Number: No. 16-1403

Decided: Vacated and remanded by published opinion

Case Alert Author: Patrick J.L. Dillon, Univ. of Maryland Carey School of Law

Counsel: ARGUED: D. Michelle Douglas, KALBIAN & HAGERTY, LLP, Washington, D.C., for Appellant. Mukti N. Patel, FISHERBROYLES LLP, Princeton, New Jersey, for Appellees. ON BRIEF: Haig V. Kalbian, KALBIAN & HAGERTY, LLP, Washington, D.C., for Appellant.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 01:20 PM     4th Circuit     Comments (0)  

  United States v. Dozier -- Fourth Circuit
Fourth Circuit Joins Ninth Circuit in Adopting Two-Step Analysis to Find General Attempt Conviction Constitutes Controlled Substance Offense under Sentencing Guidelines

Areas of Law: Criminal Law, Sentencing Guidelines

Issue Presented: Whether a defendant's prior conviction for attempt to distribute a controlled substance under West Virginia law constitutes a "controlled substance offense" under U.S.S.G. § 4B1.2 for purposes of the career offender sentencing enhancement.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the District Court erred in applying the modified categorical approach to determine whether the defendant's prior attempt conviction constituted a "controlled substance offense" for purposes of career offender sentencing. The Fourth Circuit explained that, under the categorical approach required by the U.S. Supreme Court in Mathis, a court must engage in two analyses: first, a court must determine whether the state's definition of "attempt" categorically comports with the generic definition of "attempt" as that term is used in the career-offender enhancement. Second, a court must determine whether the underlying state offense is a categorical match for the Guideline predicate offense. Applying this analysis, the Fourth Circuit nevertheless found that the District Court correctly concluded that the defendant's prior attempt conviction constituted a "controlled substance offense." Therefore, the Fourth Circuit affirmed the District Court's judgment.

Extended Summary: In 2015, Deshawn Dozier was charged with knowingly and intentionally distributing cocaine in violation of federal law. After Dozier entered his guilty plea, the probation officer provided the District Court with a presentence investigation report ("PSIR"), which recommended in part a career offender enhancement.

Dozier was designated a career offender due to two prior state convictions, which were categorized as "controlled substance offenses" under § 4B1.2 of the U.S. Sentencing Guidelines. Under § 4B1.2, a "controlled substance offense" includes the "attempt[] to commit such [an] offense[]." Dozier's second state conviction was a conviction for attempt to distribute a controlled substance under West Virginia law. Dozier objected to the categorization of his second conviction and his resulting career offender status. The District Court overruled Dozier's objection, holding that Dozier's attempt conviction constituted a "controlled substance offense" under a modified categorical approach. Thus, the District Court adopted the PSR's recommendation and imposed a sentence of 151-month imprisonment.

The Fourth Circuit first found that the District Court erred in applying the modified categorical approach to the West Virginia general attempt statute, reasoning that the statute is not divisible. Nevertheless, the Fourth Circuit held that the District Court correctly concluded that Dozier's prior attempt conviction constituted a "controlled substance offense" after analyzing the case under the proper categorical approach.

Citing United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013), Taylor v. United States, 495 U.S. 575, 602 (1990), and Mathis v. United States, 136 S. Ct. 2243, 2246 (2016), the Fourth Circuit explained that, when addressing whether a prior conviction triggers a Sentencing Guideline enhancement, the categorical approach focuses on the elements of the prior offense. For a prior conviction to qualify as a Guideline predicate offense, "the elements of the prior offense [must] 'correspond[] in substance' to the elements of the enumerated offense." Citing the Ninth Circuit decision in Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir. 2007), the Fourth Circuit found that because Dozier was convicted under West Virginia's general attempt statute two sets of elements were at issue: the elements of attempt and the elements of the underlying attempted controlled substance offense.

Citing two Ninth Circuit decisions United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014), the Fourth Circuit held that a court must engage in two related analyses to adhere to the "elements-only inquiry" required by Mathis. First, a court must determine whether the state's definition of "attempt" categorically comports with the generic definition of "attempt" as that term is used in the career-offender enhancement. Second, a court must determine whether the underlying state offense is a categorical match for the Guideline predicate offense.

First, the Fourth Circuit held that, under the Taylor categorical approach, West Virginia's attempt statute is a categorical match for the generic definition of "attempt." The Fourth Circuit's precedent defines "generic attempt" as requiring (1) culpable intent to commit the crime charged and (2) a substantial step towards the completion of the crime. West Virginia criminal law defines attempt as requiring "(1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." After comparison, the Fourth Circuit found that the degree of intent required under West Virginia's general attempt statute is no broader than that required under the generic definition. The Fourth Circuit also found that the definition of an overt act under West Virginia law "corresponds in substance" to the generic definition of a substantial act.

Second, the Fourth Circuit held that the underlying offense is a categorical match for a generic "controlled substance offense." U.S.S.G. § 4B1.2(b) provides that a controlled substance offense is an offense that "prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." The underlying statutory offense at issue, West Virginia Code § 60A-4-401, provides "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." Accordingly, the Fourth Circuit found the act and related intent elements of § 60A-4-401(a) are no broader than those of the generic offense. In addition, both the controlled substance offense and Dozier's underlying attempted offense, i.e., distributing cocaine, are felonies punishable by imprisonment for a term exceeding one year.

Therefore, the Fourth Circuit concluded that Dozier's prior attempt conviction qualifies as a controlled substance offense, and Dozier was properly deemed a career offender under the Sentencing Guidelines. As a result, the Fourth Circuit affirmed the District Court's judgment.

To read the full opinion, click here.

Panel: Judges Shedd and Keenan, and Senior Judge Davis

Argument Date: 10/27/2016

Date of Issued Opinion: 01/30/2017

Docket Number: No. 15-4532

Decided: Affirmed by published opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal Public Defender, Rachel E. Zimarowski, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Carol A. Casto, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Author of Opinion: Senior Judge Davis

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 12:58 PM     4th Circuit     Comments (0)  

  Sijapati v. Boente -- Fourth Circuit
Removability Statute: 5-Year Clock Resets Every Time a Non-Immigrant Leaves the United States

Areas of Law: Criminal Law, Immigration Law

Issue Presented: Whether the Fourth Circuit should accord Chevron deference to the Board of Immigration Appeals' interpretation of "the date of admission" under 8 U.S.C. § 1227(a)(2)(A)(i)(I) in Matter of Alyazji.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the Board of Immigration Appeals' interpretation of "the date of admission" in Matter of Alyazji is entitled to Chevron deference. In Alyazji, "the date of admission" under 8 U.S.C. § 1227(a)(2)(A)(i)(I) was construed as the date of admission "by virtue of which an alien was in the United States at the time that he committed the crime involving moral turpitude." Thus, the Fourth Circuit found that the petitioner's second admission date was "the date of admission" for purposes of determining his removability. The Fourth Circuit affirmed the Board of Immigration Appeals' order.

Extended Summary: Ashish Sijapati, a native of Nepal, was admitted to the United States on a non-immigrant L-2 visa on January 25, 2001. On December 31, 2002, Sijapati departed the United States for a two-and-a-half-week vacation to Nepal. On January 18, 2003, Sijapati reentered the United States pursuant to his existing L-2 visa. On December 12, 2007, a circuit court in Virginia convicted Sijapati of felony embezzlement and imposed an eighteen-month suspended sentence.

Following Sijapati's conviction, the Department of Homeland Security ("DHS") instituted removal proceedings against Sijapati under 8 U.S.C. § 1227(a)(2)(A)(i)(I), alleging that Sijapati had been convicted of a crime involving moral turpitude within five years of the date of his admission. Sijapati filed a motion to terminate the removal proceedings against him, arguing that his embezzlement conviction did not render him removable.

The immigration court denied Sijapati's motion. The immigration court found that the Board o