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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)  

October 30, 2017
  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)  

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)  

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 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 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 27, 2017
  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 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 of Immigration Appeals' ("BIA") decision in Matter of Alyazji controlled the determination of Sijapati's date of admission. In Alyazji, the BIA construed "the date of admission" as the date of "admission pursuant to which the alien was in the United States at the time that he committed the crime involving moral turpitude." Thus, the immigration court found that Sijapati's admission on January 18, 2003 was the date of admission for purposes of the statute. Accordingly, the immigration court declined to terminate Sijapati's removal proceedings but ordered that he be granted voluntary departure in lieu of removal. Sijapati appealed to the BIA, which, in its unpublished decision, affirmed the immigration court's determination. Sijapati then petitioned the Fourth Circuit for review of the BIA's order.

The Fourth Circuit denied the petition and affirmed the BIA's decision. According to Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), the BIA's interpretation of an ambiguous provision in the Immigration and Nationality Act ("INA") "must be given controlling weight unless th[at] interpretation[] [is] 'arbitrary, capricious, or manifestly contrary to the statute.'" ("Chevron deference"). However, because Chevron deference "is accorded only when an 'agency's interpretation is rendered in the exercise of [its] authority [to make rules carrying the force of law],'" the Fourth Circuit could not defer to the BIA's unpublished decision denying Sijapati's relief. Nevertheless, according to Hernandez v. Holder, 783 F.3d 189, 192 (4th Cir. 2015), when an unpublished decision lacking precedential weight relies on a precedential decision to which Chevron deference can apply that precedential decision controls "to the extent that 'Congress has not directly addressed the precise question at issue' and 'the [BIA]'s answer is based on a permissible construction of the statute.'"

Thus, to determine whether Alyazji's construction of "the date of admission" was entitled to deference, the Fourth Circuit applied this two-step inquiry. First, the court considered "whether Congress has directly spoken to the precise question at issue." If Congress' intent is clear, the court's inquiry comes to an end. If the statute is silent or ambiguous as to the specific issue, the court must then determine "whether the agency's answer is based on a permissible construction of the statute."

First, the Fourth Circuit held that the phrase "the date of admission" is ambiguous. Citing Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016), the Fourth Circuit explained that when conducting the first inquiry, a court focuses "purely on statutory construction without according any weight to the agency's position." After looking at the plain language of the statute, the Fourth Circuit found that the INA is silent as to which admission should be used in determining an alien's removability under 8 U.S.C. § 1227(a)(2)(A)(i)(I), in the event an alien has multiple admissions, like Sijapati.

The Fourth Circuit continued to the second inquiry - whether Alyazji reasonably interpreted the meaning of "the date of admission." In Alyazji, concentrating on the statutory provision's "focus[] on admission plus presence," the BIA concluded that "the most natural reading of section 237(a)(2)(A)(i) is that the phrase 'the date of admission' refers to the date of admission by virtue of which the alien was present in the United States when he committed his crime." The Fourth Circuit found that Alyazji's construction was not arbitrary, capricious, or manifestly contrary to the statute for three reasons. First, the BIA followed the normal principles of statutory construction, considering the statute's "overall design" and "the language of the [moral turpitude] provision itself." Second, the BIA explained how its interpretation was informed by its own precedent and judicial constructions of the statute. Third, the BIA reasonably concluded that an alternative construction - treating the date of an alien's first admission as "the date of admission" - "is not reconcilable with the language and purpose of the statute."

In conclusion, the Fourth Circuit held that the BIA's interpretation of "the date of admission" in Alyazji was entitled to Chevron deference. The court concluded that Sijapati's second admission date (January 18, 2003) was the date of admission, and therefore he committed a crime involving moral turpitude within five years of his admission.

To read the full opinion, click here.

Panel: Judges Traxler, Keenan, and Wynn

Argument Date: 10/25/2016

Date of Issued Opinion: 02/01/2017

Docket Number: No. 15-1204, No. 15-1804

Decided: Petitions for review denied by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Laura Halliday Hickein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Irina Manelis, DYER IMMIGRATION LAW GROUP, P.C., Henrico, Virginia, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent

Author of Opinion: Circuit Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 12:38 PM     4th Circuit     Comments (0)  

  Birmingham v. PNC Bank -- Fourth Circuit
Homeowner Underwater and Out of Luck

Areas of Law: Bankruptcy Law, Statutory Interpretation

Issue Presented: Whether reference in the deed of trust to escrow funds, insurance proceeds, and miscellaneous proceeds constituted additional collateral for purposes of 11 U.S.C. § 1322(b)(2) such that the creditor was not entitled to protection against claim being crammed down.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the district court did not err in affirming the bankruptcy court's determination that PNC Bank, the creditor, was entitled to protection from having its claim crammed down. The Fourth Circuit found that PNC Bank's loan was secured solely by debtor Birmingham's principal residence, and not by any additional collateral. Therefore, PNC Bank was entitled to 11 U.S.C. § 1322(b)(2)'s anti-modification protection of its claim against Birmingham.

Extended Summary: On May 23, 2014, Gregory Birmingham filed a voluntary petition for Chapter 13 bankruptcy. PNC Bank had a claim against Birmingham for a mortgage in the amount of $343,101.87, which was secured by a deed of trust on Birmingham's primary residence in Beltsville, Maryland. Birmingham was in arrears on his mortgage in the amount of $93,386.58. Birmingham filed his Original Chapter 13 Bankruptcy Plan on June 4, 2014. The plan included a cram-down (or modification) of PNC's interest in the property. A cram-down occurs when the principal balance of a debt is reduced to the value of the property securing the debt. At that time, Birmingham's property was valued at $206,400.

The anti-modification provision in the bankruptcy code protects a secured creditor from having its claim in a Chapter 13 bankruptcy proceeding modified. Birmingham sought to avoid application of this provision with regard to the debt he owed PNC. In particular, Birmingham filed a Complaint for Declaratory Action requesting that PNC's claim be treated as a partially unsecured claim subject to modification. He argued that certain provisions of the Deed of Trust ("Provisions") required collateral other than real property, which would remove the claim from 11 U.S.C. § 1322(b)(2)'s anti-modification protection. PNC filed a motion to dismiss contending that the items referred to in the Deed of Trust constituted incidental property, which was a part of Birmingham's principal residence. Therefore, PNC argued that the additional items did not expose the PNC mortgage to a cram-down. The bankruptcy court granted PNC's motion, noting that arguments identical to Birmingham's had been repeatedly denied by the bankruptcy court. Birmingham appealed to the United States District Court for the District of Maryland. The District Court affirmed the bankruptcy court's determination, holding that the Provisions were benefits that were "merely incidental" to the interest in real property and were not additional security for purposes of § 1322(b)(2). Birmingham then appealed to the Fourth Circuit.

The Fourth Circuit held that the district court properly affirmed the bankruptcy court's determination that PNC Bank was entitled to the protection of the anti-modification provisions of § 1322(b)(2) because the Provisions of the Deed of Trust were incidental property.

The court first analyzed the relevant statutory provisions. It noted that under Chapter 13, debtors may obtain adjustment of their debt through flexible repayment plans approved by a bankruptcy court. The adjustment of a debtor's debt depends on two statutory provisions, 11 U.S.C. § 506(a) and 11 U.S.C. § 1322(b)(2). Under § 506(a), a secured creditor's claim can be modified, or bifurcated, into secured and unsecured portions when the claim exceeds the value of the secured property. However, relying on the Supreme Court precedent Nobelman v. Am. Sav. Bank., 508 U.S. 324 (1993), the Fourth Circuit noted that a debtor's debt cannot be modified if the mortgage is secured "only by a security interest in real property that is the debtor's principal residence." The court looked to the Bankruptcy Code for the definition of "debtor's principal residence," which is "a residential structure if used as the principal residence by the debtor, including incidental property, without regard to whether that structure is attached to real property." Additionally, it defined "incidental property" as including "escrow funds" and "insurance proceeds."

Furthermore, the Fourth Circuit pointed to several cases from sister circuits, which held that the insurance and other items mentioned in the Provisions were only incidental property and did not create additional security in the property. For example, in Allied Credit Corp v. Davis, 989 F.2d 208 (6th Cir. 1993), the Sixth Circuit found that certain items that are inextricably bound to the real property itself as "part of the possessory bundle of rights" do not extend a lender's security beyond the real property. The Fourth Circuit found this reasoning persuasive as it applied to the provisions involving the escrow items, property insurance proceeds and miscellaneous proceeds. Therefore, the court found the Deed of Trust on Birmingham's property was secured only by real property that was his principal residence. Therefore, the Fourth Circuit affirmed the District Court's judgment.

To read the full opinion, click here.

Panel: Judges Thacker and Harris, and District Judge Lee

Argument Date: 10/26/2016

Date of Issued Opinion: 01/18/2017

Docket Number: 15-1800

Decided: Affirmed by published opinion.

Case Alert Author: Lauren Harrison, Univ. of Maryland Carey School of Law

Counsel: ARGUED: John Douglas Burns, THE BURNS LAW FIRM, LLC, Greenbelt, Maryland, for Appellant. Daniel J. Tobin, BALLARD SPAHR LLP, Washington, D.C., for Appellee. ON BRIEF: Bryan J. Harrison, Matthew G. Summers, BALLARD SPAHR LLP, Baltimore, Maryland, for Appellee.

Author of Opinion: District Judge Lee

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 12:22 PM     4th Circuit     Comments (0)  

  Hall v. Direct TV,LLC -- Fourth Circuit
DIRECTV Cannot Escape Claims that It Underpaid Employees

Areas of Law: Employment Law; Civil Procedure

Issue Presented: Whether the district court erred in finding that the Plaintiffs' claims should be dismissed because they did not sufficiently allege that the Defendants jointly employed them for purposes of the Fair Labor Standards Act ("FLSA").

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit reversed the district court's decision to dismiss the Plaintiffs' complaint. The court held that the Plaintiffs (who were satellite television technicians) adequately stated a claim under the FLSA because they sufficiently alleged the Defendants were jointly their employers and that they were employees, and not independent contractors of the Defendants.

Extended Summary: DIRECTV is the nation's largest satellite television provider and uses thousands of technicians to install and repair its satellite systems. DIRECTV manages the technicians through its "Provider Network." This network is organized as a pyramid in which DIRECTV contracts with home and secondary service providers who then contract with subcontractors. These subcontractors contract directly with the individual technicians. DirectSat was a home service provider in DIRECTV's network at the time of the filing of the relevant complaint. DirectSat was the middleman between DIRECTV and individual technicians. DirectSat implemented DIRECTV's hiring criteria, relayed DIRECTV's scheduling to the technicians using DIRECTV's work-assignment system, and supervised the technicians. DirectSat also maintained personnel files that were audited and regulated by DIRECTV. Additionally, DIRECTV required technicians to use DIRECTV equipment and attend DIRECTV training at Directsat facilities.

Between 2007 and 2014, each Plaintiff worked as a technician for DirectSat DIRECTV, or one of the other entities in the DIRECTV pyramid. Plaintiffs principal duty was to install and repair DIRECTV equipment. During their periods of employment, each Plaintiff was classified by their employer(s) as an independent contractor. The Plaintiffs alleged that DIRECTV directed and controlled Plaintiffs' work. For example, DIRECTV was the primary, if not the only client of each of the providers who served as the Plaintiffs' direct employers. Additionally, the Plaintiffs were required to wear DIRECTV gear, carry DIRECTV ID cards, and display the DIRECTV logo on their cars. DIRECTV also exercised quality control over each technician's work and controlled compensation. Finally, DIRECTV was allowed to terminate technicians by not assigning them work assignments through the work assignment system.

The Plaintiffs claimed they regularly worked in excess of forty hours per week, but were not paid overtime while they were DIRECTV technicians. So, the Plaintiffs filed various lawsuits in several jurisdictions, which were then consolidated. The Plaintiff's allege that the Defendants (DIRECTV and DirectSat) were their joint employers during the relevant period and that the Defendants' failure to pay overtime for the additional hours violated the overtime and minimum wage requirements of the Fair Labor Standards Act (FLSA). Additionally, the Plaintiffs brought claims under several Maryland wage statutes. The Defendants each moved to dismiss the Plaintiffs' Complaint, which was granted by the district court. The district court found that since the Plaintiffs did not allege that DIRECTV directly hired or fired them or controlled their compensation, the complaint did not allege facts that were sufficient to show DIRECTV was a joint employer. Additionally, the court concluded that the claims under the Maryland wage and labor statutes also failed. The Plaintiffs appealed the district court's dismissal.

The Fourth Circuit reversed the district court's decision finding that the Plaintiffs' allegations demonstrated that DIRECTV and DirectSat both jointly employed the Plaintiffs. The Fourth Circuit found that the district court (1) applied the improper legal test for determining whether entities are joint employers under the FLSA, and (2) misapplied the plausibility standard from Twombly and Iqbal. First, the court found that the district court incorrectly concluded that a worker must be an employee, as opposed to an independent contractor, of each joint employer for the entities to even be considered joint employers. Additionally, the Fourth Circuit found the district court improperly relied on Bonnette v. California, 704 F.2d 1465 (9th Cir. 1983), to determine whether the Defendants jointly employed the Plaintiffs.

The Fourth Circuit concluded that the correct inquiry involved two steps: (1) considering whether the Defendant and one or more additional entities shared, agreed to allocate responsibility for, or otherwise co-determined the key terms of the Plaintiffs' work; and (2) considering whether the worker was an employee or independent contractor by looking to the entire agreement as one agreement. Additionally, the Fourth Circuit concluded that Bonnette was not the correct test for determining whether two employers are joint employers. Instead, the 6-factor test announced in Salinas v. Commercial Interiors Inc., No. 15-1915, slip op. (argued Oct. 27, 2016), is the correct test for making the joint employment determination. Therefore, the court erred in granting the motion to dismiss.

Even with this determination, the Fourth Circuit had to consider whether the Plaintiffs' allegations were sufficient to state a plausible FLSA joint employment claim against the Defendants. The court found that the Plaintiffs stated plausible claims that DIRECTV and DirectSat were their joint employers because they alleged sufficiently that the companies codetermined the key terms and conditions of Plaintiffs' employment. Additionally, the court found that Plaintiffs were employees within the meaning of the FLSA. The court looked to the six factors from United States v. Silk in making this determination. It found that the Plaintiffs sufficiently alleged they were economically dependent on the Defendants while they were technicians.

Finally, the court considered the Defendants contention that the district court's determination should be affirmed because the Plaintiffs did not adequately "articulate a sufficiently detailed accounting of the number of uncompensated hours they worked during their respective periods of employment" to state a claim for unpaid overtime under the FLSA. The court noted that some courts have a strict standard and others have a more lenient standard in determining the sufficiency of the Plaintiffs accounting of their hours. Under the lenient standard, the Plaintiffs just need to state that they worked 40 hours and some additional hours, which they were not compensated for. The Fourth Circuit adopted the lenient standard in which "a plaintiff must provide sufficient factual allegations to support a reasonable inference that he or she worked more than forty hours in at least one workweek and that his or her employer failed to pay the requisite overtime premium for those over time hours." Additionally, the court carefully noted that plaintiffs do not have to specify the weeks, they just have to move the claim from conceivable to plausible. In this case, the Plaintiff's allegations provided a sufficient basis to support the reasonable inference that they were uncompensated for overtime hours while they were DIRECTV technicians.

To read the full opinion, click here.

Panel: Judges Wynn, Floyd, and Harris

Argument Date: 10/27/2016

Date of Issued Opinion: 01/25/2017

Docket Number: 15-1857

Decided: Reversed and remanded by published opinion.

Case Alert Author: Lauren Harrison, Univ. of Maryland Carey School of Law

Counsel: Larkin E. Walsh, STUEVE SIEGEL HANSON LLP, Kansas City, Missouri, for Appellants. Colin David Dougherty, FOX ROTHSCHILD LLP, Blue Bell, Pennsylvania, for Appellees. ON BRIEF: George A. Hanson, Kansas City, Missouri, Ryan D. O'Dell, STUEVE SIEGEL HANSON LLP, San Diego, 3 California, for Appellants. Nicholas T. Solosky, FOX ROTHSCHILD LLP, Washington, D.C., for Appellees.

Author of Opinion: Circuit Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 12:10 PM     4th Circuit     Comments (0)  

  Salinas v. Commercial Interiors Inc. -- Fourth Circuit
Who's the Boss? New Test to Determine Joint Employment under the Fair Labor Standards Act

Areas of Law: Employment Law

Issue Presented: Whether a worker is jointly employed for the purposes of determining liability under the employer's FLSA obligations.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit reversed the district court's judgment granting the defendant's motion for summary judgment, and ruled that the defendants jointly employed the plaintiffs. Relying on a newly announced six-factor test that focuses on whether employers "share[d] or codetermined the essential terms and conditions of employment," the Fourth Circuit held that the defendants did jointly employee the plaintiffs for the purposes of determining liability under the employers FLSA obligations.

Extended Summary: The plaintiffs sued JI General Contractor Inc. ("JI") and Commercial Interior Inc. ("Commercial") for unpaid wages in violation of the Fair Labor Standards Act ("FLSA"), Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law. The complaint alleged that Commercial and JI (1) jointly employed the plaintiffs, and (2) were jointly and severally liable.

The district court granted Commercial's motion for summary judgment and held that JI was the plaintiffs' sole employer because Commercial and JI entered into a legitimate contractor-subcontractor agreement. On appeal to the Fourth Circuit, the plaintiffs argued that the district court did not properly conform to the FLSA definition of "employ," "employee," and "employer;" and improperly limited joint employment. On appeal, the United States Court of Appeals for the Fourth Circuit reversed the district court's award of summary judgment.

In reversing the lower court, the Fourth Circuit reaffirmed that for the purposes of determining FLSA liability the business agreement is not important. For the purposes of determining joint employment and liability, the court first looks at whether two entities agree to allocate responsibility or codetermine the terms and conditions of the worker's employment. Next, the court must consider whether the two entities combined influence over the terms and conditions of the worker's employment makes the worker an employee.

The Fourth Circuit noted that while JI formally employed the plaintiffs, Commercial supervised the plaintiffs on the job site and maintained JI employee's time sheets. Additionally, before working, Commercial required JI employees to attend daily meetings where Commercial employees gave workers instructions while JI supervisors translated the instructions from English to Spanish. While working, JI employee used tools and materials owned and issued by Commercial bearing Commercial's logo while being directly supervised by Commercial employees. Finally, Commercial employees threatened to fire JI employees for substandard work, and during certain projects JI workers worked directly for Commercial and were issued pay checks from Commercial.

In determining whether a relationship between two corporate entities exists to determine FLSA obligations, the Fourth Circuit first looked to the Department of Labor regulations distinguishing "separate and distinct employment" from "joint employment." The regulations define separate employment as two or more employers that act entirely independently and may disregard all work performed by workers for another employee. The regulation defines joint employment as employment where the employment by one employer is not completely disassociated from employment by the other employer.

Relying on these regulations, the Fourth Circuit created a test to determine if employers "share or codetermine the essential terms and conditions" of employment, instead of relying on the test from other circuits that focuses on the economic relationship between the employers. To determine whether two entities constitutes joint employers for the purposes of FLSA, the Fourth Circuit held that courts should consider the following factors:

(1) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, whether by direct or indirect means; (2) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to - directly or indirectly - hire or fire the worker or modify the terms or conditions of the worker's employment; (3) The degree of permanency and duration of the relationship between the putative joint employers; (4) Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer;(5) Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another; and (6) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll; providing workers' compensation insurance; paying payroll taxes; or providing the facilities, equipment, tools, or materials necessary to complete the work.

In announcing the new test the Fourth Circuit cautioned that the factors are not exhaustive and the ultimate determination of joint employment must be based on the circumstances of the whole activity.

Using the factors in the new test, the Fourth Circuit held that the plaintiffs were jointly employed by both JI and Commercial. In applying the first and second factors, the court found that Commercial and JI jointly supervised and controlled the plaintiffs. Under the third and fourth factors, the court recognized that while Commercial did not own JI, most of JI's work came directly from Commercial. When JI did take work from another general contractor it was because Commercial did not have work for JI. Finally, the court held that the final factor supported the fact that JI and Commercial jointly employed the plaintiffs because Commercial supplied JI works with the tools, materials, and equipment necessary to work.

To read the full opinion, click here.

Panel: Judges Wynn, Floyd, and Harris

Argument Date: 10/27/2016

Date of Issued Opinion: 01/25/2017

Docket Numbers: No. 15-1915

Decided: Reversed by published opinion

Case Alert Author: Fernando Kirkman, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Sally Jean Dworak-Fisher, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Appellants. Michael J. Jack, LAW OFFICES OF MICHAEL J. JACK, Marriottsville, Maryland, for Appellee. Dean Romhilt, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. ON BRIEF: Darin M. Dalmat, Kathy L. Krieger, JAMES & HOFFMAN, P.C., Washington, D.C., for Appellants. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. Brian J. Petruska, LIUNA MID ATLANTIC REGIONAL ORGANIZING COALITION, Reston, Virginia; Catherine K. Ruckelshaus, NATIONAL EMPLOYMENT LAW PROJECT, INC., New York, New York, for Amici National Employment Law Project, Laborers' International Union of North America Mid-Atlantic Regional Organizing Coalition, and Centro De Los Derechos Del Migrantes.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 11:03 AM     4th Circuit     Comments (0)  

  Verisign, Inc. v. XYZ.com LLC, et al. -- Fourth Circuit
Dueling Domain Operator Falls Short of Proving Lanham Act Claim

Areas of Law: Lanham Act

Issue Presented: Whether the appellees violated the Lanham Act's prohibition against false advertising by promoting their product as "the next .com" and by criticizing their competitor's product through subjective language.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's award of summary judgment to appellees XYZ.com, LLC and Daniel Negari in a false advertising action brought by Verisign, Inc. under the Lanham Act.

Extended Summary: This case arose out of a false advertising action under the Lanham Act. Appellant Verisign, Inc. ("Verisign") is the exclusive operator of .com. and .net top-level domains. In 2014, after the Internet Corporation for Assigned Names and Numbers ("ICANN") approved the introduction of new top-level domains into the market, appellee XYZ.com, LLC ("XYZ") launched the .xyz domain. To promote the domain, XYZ and its CEO Daniel Negari ("Negari") made statements within two broad categories. First, XYZ made self-promotional statements about its registration numbers and popularity, including that XYZ secured over one million registrations and that .xyz was "the next .com." Second, XYZ made allegedly disparaging statements about Verisign's .com domain by declaring that it is "impossible to find the domain name that you want" and that "[a]ll of the good real estate is taken" except for "only . . . something with a dash or maybe three dashes and a couple numbers in it."

Verisign filed suit against XYZ and Negari alleging that appellees' statements violated the Lanham Act. To prevail on a false advertising claim under the Lanham Act, a plaintiff must show: (1) the defendant made a false or misleading representation of fact in a commercial advertisement; (2) the misrepresentation is material and likely to influence a consumer's decision; (3) the misrepresentation deceives or tends to deceive a substantial portion of the audience; (4) the defendant placed the misrepresentation in interstate commerce; and (5) the plaintiff suffered or is likely to suffer an injury by diversion of sales or lessening of goodwill.

Verisign contended that XYZ misrepresented actual consumer demand for the .xyz domain through its self-promotional statements and that XYZ made falsely disparaging statements about the .com domain. To support its claim, Verisign conducted a survey to test consumers' reactions to XYZ's statements. Verisign argued that it suffered approximately $527,000 in lost profits due to diverted sales, relying on an expert's testimony that she multiplied Verisign's lost profits by XYZ's market share at the time of the challenged statements. The District Court granted summary judgment to XYZ and Negari.

On appeal, the Fourth Circuit affirmed the District Court's judgment on the basis that Verisign failed to demonstrate that appellees' statements violated the Lanham Act. With respect to XYZ's self-promotional statements, the Fourth Circuit concluded that Verisign failed to prove that it suffered an injury caused by the challenged statements. Verisign's expert testimony proved only a temporal link between XYZ's statements and Verisign's lost profits, rather than the causal link required by the Lanham Act.

Turning to XYZ's allegedly disparaging statements, the Fourth Circuit held that the challenged statements did not constitute false or misleading factual statements, as required by the first element of a Lanham Act claim. Citing the Eighth Circuit's decision in American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir. 2004), the Fourth Circuit reasoned that XYZ's statements concerning the availability of desirable .com names constituted mere opinion or puffery and therefore did not violate the Lanham Act. Specifically, XYZ's claim that it is "impossible to find the domain name that you want" was not verifiable due to the indefinite nature of "you." The Fourth Circuit also extended its reasoning to Negari's statements that "[a]ll of the good real estate is taken" and that the "only thing that's left is something with a dash." The Fourth Circuit emphasized that "good" constituted a subjective opinion and that "only" resembled a colloquial exaggeration upon which no reasonable consumer would rely. The Fourth Circuit therefore affirmed the District Court's award of summary judgment to XYZ and Negari.

To read the full opinion, click here.

Panel: Judges Wynn, Floyd, and Harris

Argument Date: 10/27/2016

Date of Issued Opinion: 02/08/2017

Docket Numbers: No. 15-2526

Decided: Affirmed by published opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Lisa Schiavo Blatt, ARNOLD & PORTER LLP, Washington, D.C., for Appellant. Derek Alan Newman, NEWMAN DU WORS LLP, Seattle, Washington, for Appellees. ON BRIEF: Ronald L. Johnston, Los Angeles, California, Robert N. Weiner, Robert A. DeRise, Elisabeth S. Theodore, ARNOLD & PORTER LLP, Washington, D.C., for Appellant.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 10:48 AM     4th Circuit     Comments (0)  

  Smith v. Munday -- Fourth Circuit
A Case of Mistaken Identity: 4th Circuit Rules No Evidence, No Probable Cause

Areas of Law: Constitutional Law, Fourth Amendment, and Qualified Immunity

Issues Presented: 1) Whether investigating officers had probable cause to arrest appellant and 2) whether the arresting officer was entitled to qualified immunity.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that Officer Jason Munday's application for an arrest warrant lacked probable cause and thus violated Smith's Fourth Amendment rights. Having found that no probable cause existed for the warrant, the court determined that Officer Munday was not entitled to qualified immunity. Accordingly, the Fourth Circuit reversed the district court's ruling and remanded for further proceedings.

Extended Summary: In March 2009, investigating officers Munday and McGinley conducted an undercover investigation using a confidential informant, Rufus Lynch. The officers wired Lynch with audio and video recorders and paid him sixty dollars to engage in a drug transaction. Lynch then went to a location where he purchased crack cocaine from two individuals. After the transaction, Lynch returned to the officers and told them he had purchased the drugs from a "skinny Black female" named "April Smith." Both the audio recorder and camera failed to capture the drug transaction. Over a nine-month period following the transaction, Officer Munday scanned police databases for residents of Lincoln County with criminal records named April Smith. He eventually found a woman named April Yvette Smith, who was a Black female resident of Lincoln County and had been convicted of selling crack cocaine on three separate occasions. He also found two other "April Smiths" with criminal records. Officer Munday had no evidence that the woman who sold crack to Lynch had a criminal record, or was even a Lincoln County resident. He also did not attempt to investigate April Yvette Smith or connect her to the drug transaction. Nevertheless, Munday applied for and received an arrest warrant for Smith on charges of possession with intent to sell crack cocaine and selling or distributing cocaine. Smith was arrested in December 2009 in her home, which was eleven miles away from the site of the drug sale. Smith was held in custody for approximately eighty days until the Lincoln District Attorney's Office dropped the charges against her. Smith allegedly lost her job while in police custody.

Smith filed suit alleging, inter alia, constitutional violations of the Fourth and Fourteenth Amendments and state law claims for negligence and false arrest. The district court found no constitutional violation had occurred. The district court reasoned that the investigating officers had probable cause to believe that Smith was the woman who sold crack cocaine to Lynch because they were looking for a Black woman named April Smith who sold drugs, and found a person fitting this description only eleven miles away from where the drug sale occurred. The Fourth Circuit disagreed, stating that a criminal history, and common race, gender, and name are insufficient to establish probable cause. The court determined that Officer Munday did not have enough information for any reasonable or prudent person to believe there was probable cause. Moreover, the court reasoned, Munday had no evidence about Smith's conduct, let alone whether she was a participant in, connected to, or even physically present near the drug sale in question. All he knew was that she had previously been convicted for selling drugs, that she was a Black woman, and that she lived "near" the site of the drug sale. The court warned that finding this amount of evidence sufficient for probable cause would allow officers to obtain arrest warrants for any local residents who fit generic descriptions and have an unfortunately common name. The court distinguished this case from two previous cases with similar facts, Thompson v. Prince William County, 753 F.2d 363 (4th Cir. 1985), and Durham v, Horner, 690 F.3d 183 (4th Cir. 2012). In Thompson, the court noted, the police officer used multiple methods to establish the arrestee's identity; and in Durham, a grand jury - not the police officer - determined the existence of probable cause and found that it was the proximate cause of the arrest.

To the question of whether Munday was entitled to qualified immunity, the court determined that he was not. The court found it would be unreasonable for any officer to view Munday's dearth of evidence as sufficient to establish probable cause. Further, the court explained, had Munday carefully reflected on his warrant application, perhaps Smith would not have been incarcerated for eighty days and allegedly lost her job.

Judge Agee disagreed with the majority's finding that the arrest warrant was not supported by probable cause and that Officer Munday was not entitled to qualified immunity. He determined that reasonable minds could disagree as to whether probable cause existed, and therefore found that Munday was entitled to qualified immunity. In particular, Judge Agee disagreed with the majority's distinction between Smith's case and Durham, arguing that the two were analogous because Munday's evidence was "ample" when viewed in its totality. Moreover, Judge Agee argued the evidence in this case was stronger because, unlike in Durham, there was no contradictory evidence. Judge Agee thus concluded that the majority's holding that probable cause was lacking was erroneous. Finally, Judge Agee argued that Munday was entitled to qualified immunity because the majority failed to leave room for the "reasonable error" inherent in a qualified immunity analysis.

To read the full opinion, click here.

Panel: Gregory, Chief Judge, and King and Agee, Circuit Judges.

Argument Date: 09/20/2016

Date of Issued Opinion: 02/03/2017

Docket Number: No. 15-1496

Decided: Affirmed in part, reversed in part, and remanded by published opinion.

Case Alert Author: Yvette Pappoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Algernon Williams, Sr., LAW OFFICE OF ALGERNON WILLIAMS, Charlotte, North Carolina, for Appellant. Patrick Houghton Flanagan, CRANFILL SUMNER & HARTZOG LLP, Charlotte, North Carolina; Joseph Finarelli, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Matthew K. Lilly, CRANFILL SUMNER & HARTZOG LLP, Charlotte, North Carolina; Roy Cooper, North Carolina Attorney General, Donna Elizabeth Tanner, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Author of Opinion: Chief Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 10:36 AM     4th Circuit     Comments (0)  

  Abilt v. Central Intelligence Agency -- Fourth Circuit
National Security > Disability Discrimination: Sleepy Spy Shoulders "Unfortunate Burden" in State Secrets Privilege Case

Areas of Law: Employment Law, Disability Law

Issue Presented: Whether the district court correctly applied the state secrets doctrine.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court correctly applied the state secrets doctrine. The court affirmed the district court's decision to dismiss Abilt's lawsuits against the Central Intelligence Agency.

Extended Summary: In June 2006, the Central Intelligence Agency ("CIA" or the "Agency") hired Jacob E. Abilt as an Applications Developer. Abilt informed the Agency that he had narcolepsy. Abilt became a covert employee in May 2008, rendering classified many of the basic facts of his employment with the Agency, including his job responsibilities and the identities of most of his supervisors and coworkers. In early 2009, Abilt began to experience difficulty managing his narcolepsy and asked his then-supervisor for permission to take periodic naps. His then-supervisor granted this request. Around the same time, the Agency's Medical Officer cleared Abilt for a temporary-duty-yonder ("TDY") assignment to an overseas warzone. Abilt was then assigned to a new supervisor, who delayed Abilt's TDY assignment by 30 days after he saw Abilt sleeping at his desk. Over the next two years, the Agency cancelled Abilt's war zone and TDY assignments and allegedly denied him other assignments and training opportunities because of his narcolepsy. Abilt filed administrative complaints with the Equal Employment Opportunity Office ("EEOO"), alleging disability discrimination, failure to accommodate, and retaliation. The Agency rejected his claims as unsupported, and the Equal Employment Opportunity Commission affirmed. Abilt was fired in October 2011.

Abilt sued the Agency and Director John Brennan in February 2014 and again in December 2014. He presented the same claims he had alleged in his EEOO complaint, as well as a failure to accommodate claim under both Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The Agency invoked the state secrets privilege over various information related to Abilt's employment in both suits. Under the state secrets doctrine, the government may prevent the disclosure of information in a judicial proceeding if there is a reasonable danger that such disclosure will expose military matters which, in the interest of national security, should not be divulged. The district court dismissed Abilt's claims in both suits, holding that the Agency properly invoked the privilege. The court reasoned that neither Abilt nor the Agency could make a case without disclosing privileged information.

On appeal, Abilt argued that the district court misapplied the state secrets doctrine. He also contended that the Agency could defend itself by using non-classified information. The court disagreed, finding that even if Abilt could establish a prima facie case, the Agency could not defend itself without relying on privileged information. The court relied heavily on United States v. Reynolds, 345 U.S. 1, 10 (1953), and El-Masri v. United States, 479 F.3d 296, 302 (4th Cir. 2007), which established procedural requirements for invoking the privilege and the three-step analysis for the resolution of a claim of the privilege, respectively. The three-step analysis requires a court to: 1) ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied; 2) decide whether the information sought to be protected qualifies as privileged under the state secrets doctrine; and 3) determine how the matter should proceed in light of the successful privilege claim if the information is determined to be privileged.

First, the court determined the Agency satisfied Reynolds' procedural requirements by submitting Director John Brennan's affidavit asserting the state secrets privilege after personal consideration of Abilt's claims and determining that classified information related to his employment was at risk of disclosure in this case. Second, the court found that the information the government sought to protect, such as the identity of covert CIA employees, Abilt's work assignments, the location of CIA facilities overseas, and the sources and methods used by the CIA, was properly privileged. Therefore, the disclosure of such information would threaten the national security of the United States. Finally, in deciding the ultimate question of how the matter should proceed given the privileged information, the court determined the case had to be dismissed. The court first noted that establishing each of the prima facie elements of Abilt's claims without the privileged information would be an "extremely high hurdle." Nevertheless, the court reasoned, assuming Abilt could clear the hurdle, the case should still be dismissed because any defenses the Agency could offer would "undoubtedly" rely on privileged information. The court found unconvincing Abilt's argument that the lower burden at step two of the McDonnell Douglas framework, a framework used to evaluate discrimination and retaliation claims under both statutes, was evidence that the Agency could defend itself without resort to privileged information. The court reasoned that the Agency was entitled to proffer legitimate, non-discriminatory reasons for its actions and because those reasons are privileged, the case had to be dismissed.

The court acknowledged the "unfortunate burden" its decision placed on Abilt on behalf of the entire country, noting that "Abilt suffers dismissal of his claim 'not through any fault of his own, but because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security.'"

To read the full opinion, click here.

Panel: Wynn, Floyd, and Harris, Circuit Judges.

Argument Date: 10/27/2016

Date of Issued Opinion: 02/08/2107

Docket Number: No. 15-2568

Decided: Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Wynn and Judge Harris joined.

Case Alert Author: Yvette Pappoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Donna Renee Williams Rucker, TULLY RINCKEY PLLC, Washington, D.C., for Appellant. Jaynie Randall Lilley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Sharon Swingle, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.

Author of Opinion: Judge Floyd, Circuit Judge

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 09:57 AM     4th Circuit     Comments (0)  

March 2, 2017
  Billy E. Prince v. Sears Holding Corporation -- Fourth Circuit
Employee Beware--Check Your Mail for Insurability Questionnaires to Avoid ERISA Preemption

Areas of Law: Employee Retirement Income Security Act

Issue Presented: Whether the Employee Retirement Income Security Act ("ERISA") preempts state law claims for misrepresentation, constructive fraud, and infliction of emotional distress.

Brief Summary: Billy E. Prince, an employee of Sears Holding Corporation, brought a suit alleging that Sears improperly administered his late wife's life insurance benefits. Specifically, Mr. Prince brought the suit alleging misrepresentation, constructive fraud, and infliction of emotional distress. The United States Court of Appeals for the Fourth Circuit held that ERISA completely preempted Billy Prince's state law claims under the three prong test articulated in Sonoco Prods. Co. v. Physicians Health Plan, Inc.

Extended Summary: In November 2010, Mr. Prince submitted an application to Sears for $150,000 in life insurance for his wife. Sears administered its life insurance plans through The Prudential Insurance Company of America ("Prudential"). In May 2011, Sears sent Mr. Prince an acknowledgement letter and began withholding premiums from his pay. In late 2011, Mr. Prince's wife learned that she had Stage IV liver cancer. In 2012, Mr. Prince confirmed through his online benefits summary that he had elected to purchase life insurance coverage for his wife in the amount of $150,000. In 2013, however, Sears sent Mr. Prince a letter saying that his wife's coverage never became effective because there was no evidence that Mr. Prince had submitted his insurability questionnaire. According to Sears, Prudential sent Mr. Prince a notice in 2011 stating that if he failed to send in the questionnaire his application for life insurance would be terminated. Mrs. Prince passed away in May 2014.

Mr. Prince filed a complaint against Sears alleging constructive fraud and negligent misrepresentation as well as the intentional and reckless infliction of emotional distress. Concerning the claim of intentional and reckless infliction of emotional distress, Mr. Prince alleged that Sears misrepresented the life insurance policy and that this misrepresentation inflicted harm on him and the late Mrs. Prince. Sears removed the case to the United States District Court for the Northern District of West Virginia and argued that the suit should be dismissed because ERISA completely preempted Mr. Prince's state law claims. The district court agreed.

ERISA's § 502(a) is a broad provision that provides participants and beneficiaries with causes of action for the denial of benefits or rights under an ERISA plan. The Fourth Circuit determined that ERISA can preempt state law causes of action when: (1) a plaintiff has standing under § 502(a) to pursue his claim; (2) the claim falls within the scope of an ERISA provision that ERISA can enforce via § 502(a); and (3) the claim is not capable of resolution without interpreting the ERISA plan. Because Mr. Prince conceded that he had standing, the Fourth Circuit only considered the second and third prongs of the test articulated in Sonoco Products Company v. Physicians Health, Inc.

Under the second prong, Mr. Prince argued that his claims were not preempted because they were dependent upon Sears's actions prior to the denial of benefits when they began deducting premiums from his pay and reported that he had coverage. The court held that regardless of whether Mr. Prince's claims attacked Sears's actions prior to the denial or in issuing the denial, they were preempted because they challenged the administration of the ERISA plan, which is a core §502(a) claim. Additionally, because Mr. Prince's claims addressed only Sears's duties as an ERISA plan administrator, Sears owed Mr. Prince no independent legal duty. Regarding the third prong, Mr. Prince again argued that he was only challenging the actions Sears took prior to the denial of benefits. The court, however, held that the claims of misrepresentation and constructive fraud required an analysis of Sears's "duty" as a plan administrator, which stemmed from the ERISA plan. Similarly, for the claim of emotional distress, determining whether Sears acted in an "outrageous" manner required interpretation of the company's duties and responsibilities under the ERISA plan. Thus, the Fourth Circuit held that ERISA completely preempted Mr. Prince's state law claims, affirmed the judgment of the District Court, and dismissed the complaint.

To read the full opinion, click here.

Panel: Judges Motz, Kennan, and Thacker

Argument Date: 12/06/2016

Date of Issued Opinion: 01/27/2017

Docket Number: No. 16-1075

Decided: Affirmed by published opinion

Case Alert Author: Dena Robinson, Univ. of Maryland Carey School of Law

Counsel: Chad Lewis Taylor, SIMMERMAN LAW OFFICE, PLLC, Clarksburg, West Virginia, for Appellant. Jill E. Hall, BOWLES RICE LLP, Charleston, West Virginia, for Appellee. ON BRIEF: Frank E. Simmerman, Jr., SIMMERMAN LAW OFFICE, PLLC, Clarksburg, West Virginia, for Appellant. Gerard R. Stowers, BOWLES RICE LLP, Charleston, West Virginia, for Appellee.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/02/2017 10:31 AM     4th Circuit     Comments (0)  

February 23, 2017
  Scinto v. Stansberry -- Fourth Circuit
Federal Prisoner's Claims of Improper Medical Care Survive

Areas of Law: Constitutional Law, Eighth Amendment

Issue Presented: Whether the District Court in dismissing three Eighth Amendment claims improperly made credibility determinations and weighed the evidence.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the United States District Court for District of North Carolina erred in dismissing two Eighth Amendment claims against Dr. Phillip and Administrator McClintock, two employees at the Federal Prison Camp Seymour Johnson. The Fourth Circuit held that Scinto's claim against Dr. Phillip for his denial of insulin and the claim against Administrator McClintock and Dr. Phillip for the failure to provide aid during a medical emergency fit the Supreme Court's two-pronged test in Farmer v. Brennan.

Extended Summary: Paul Scinto, a former federal prisoner, appealed to the Fourth Circuit to review the District Court of North Carolina's dismissal of three Eighth Amendment claims that Defendants Phillip, Stansberry, and McClintock were deliberately indifferent to his medical needs, in violation of the Eighth Amendment. Scinto argued that in dismissing these claims, the district court violated the summary judgment standard by making credibility determinations and weighing the parties' evidence.

The Fourth Circuit noted that when prisoners allege they have been subjected to unconstitutional conditions of confinement, they must satisfy the Supreme Court's two-pronged test in Farmer v. Brennan. The first prong of Farmer's test is an objective prong requiring plaintiffs to demonstrate that "the deprivation alleged [was], objectively "sufficiently serious." The deprivation itself must be "extreme." The second prong of Farmer is a subjective prong, requiring plaintiffs to show that prison officials acted with a "sufficiently culpable state of mind." In order to prove deliberate indifference, plaintiffs must show that "the official kn[ew] of and disregard[ed] an excessive risk to inmate health or safety." Importantly, the Fourth Circuit noted that a plaintiff could make out a prima facie case of deliberate difference by demonstrating "that a substantial risk of [serious harm] was longstanding, pervasive, well-documented, or expressly noted by prison officials[.]"

Regarding Scinto's first claim against Dr. Phillip for allegedly denying him insulin to treat his diabetes, the Fourth Circuit found the plaintiff provided sufficient evidence to establish a genuine dispute of fact as to Farmer's objective and subjective prongs. The court found Scinto did this because he established that he suffered from a serious medical condition and he created a genuine issue of material fact regarding whether Dr. Phillip's failure to provide him with insulin constituted an "extreme deprivation." Additionally, the Fourth Circuit found that plaintiff's lengthy prison medical records showed that his diabetes diagnosis was "longstanding, pervasive, and well-documented." Plaintiff's second claim arose out of Dr. Phillip's and Administrator McClintock's alleged failure to provide him aid during a medical emergency. Specifically, Plaintiff alleged that during a lockdown he experienced extreme stomach pain and began throwing up vomit and blood. The Fourth Circuit held that Plaintiff's evidence created a genuine dispute of fact as to whether the denial of medical attention during this emergency resulted in serious injury or a substantial risk of serious injury. The Fourth Circuit also held that Plaintiff's evidence established genuine disputes of material fact as to both Farmer prongs. Last, regarding Plaintiff's final claim against Warden Stansberry alleging a denial of a proper diabetic diet during his six-month confinement in the Special Housing Unit, the Fourth Circuit affirmed the district court's award of summary judgment for the claim, but not for the reason stated. Instead, the Fourth Circuit held that the Plaintiff failed to raise a genuine dispute of material fact regarding whether the lack of a diabetic diet was a sufficiently serious deprivation actionable under the Eighth Amendment.

In addressing the qualified immunity claims raised by the Defendants, the Fourth Circuit held the Defendant's allegedly violated a clearly established statutory or constitutional right -- a prisoner's right to adequate medical care and freedom from deliberate indifference to medical needs. In addition, the Fourth Circuit found there was sufficient evidence that Plaintiff's aforementioned Eighth Amendment right was violated and that the right was clearly established. Thus, Dr. Phillip and Adminstrator McClintock were not entitled to qualified immunity.

To view the full opinion, click here.

Panel: Judges Niemeyer, Motz, and Wynn

Argument Date: 09/23/2016

Date of Issued Opinion: 11/04/2016

Docket Number: No. 15-1587

Decided:
Affirmed in part and reversed in part.

Case Alert Author: Dena Robinson, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Adam H. Farra, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, D.C., for Appellant. Robert J. Dodson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. ON BRIEF: Paul J. Zidlicky, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. John Stuart Bruce, Acting United States Attorney, G. Norman Acker, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees.
Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 02/23/2017 03:51 PM     4th Circuit     Comments (0)  

  Sotnikau v. Lynch -- Fourth Circuit
Involuntary Manslaughter under Virginia Law Is Not a Crime Involving Moral Turpitude

Areas of Law: Criminal Law, Immigration Law

Issue Presented: Whether involuntary manslaughter under Virginia law is categorically a crime involving moral turpitude for the purposes of removal proceedings.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that involuntary manslaughter under Virginia law is not categorically a crime involving moral turpitude, because a defendant can be convicted of the offense upon a showing of criminal negligence. Therefore, the Fourth Circuit concluded that the defendant was not subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I). The Fourth Circuit vacated the Board of Immigration Appeals' order of removal and remanded for further proceedings.

Extended Summary: Ihar Sotnikau ("Sotnikau") is a native of Belarus who was admitted to the United States as a lawful permanent resident in 2008. On June 18, 2010, Sotnikau and his friend Randy Hines were drinking on a pier along the Elizabeth River in Portsmouth, Virginia. At some point, Hines fell into the river and his body was found the next day. Sotnikau was charged with involuntary manslaughter in the Circuit Court of the City of Portsmouth, Virginia. He pleaded guilty and was sentenced to five years in prison.

In October 2011, the Department of Homeland Security (the "DHS") instituted removal proceedings against Sotnikau under 8 U.S.C. § 1227(a)(2)(A)(i)(I). Under the statute, a removable alien is one who "is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission." The DHS alleged that Sotnikau was convicted of a crime involving moral turpitude, i.e. involuntary manslaughter, committed within five years of being admitted to the United States. Sotnikau contested the DHS's interpretation of Virginia's involuntary manslaughter offense.

In March 2013, the Immigration Judge (the "IJ") concluded that Sotnikau had been convicted of a crime involving moral turpitude, citing the Board of Immigration Appeals' (the "BIA") 1994 decision in In re Franklin, 20 I. & N. Dec. 867 (BIA 1994). In that case, the BIA held that an involuntary manslaughter offense in Missouri constituted a crime involving moral turpitude because "the Missouri statute defined involuntary manslaughter as 'recklessly causing the death of another person.'" The IJ found that, because the mental state required to support a conviction for involuntary manslaughter under Virginia law is identical to the mental state that was at issue in the In re Franklin decision, Virginia's involuntary manslaughter offense is categorically a crime involving moral turpitude. Sotnikau appealed the IJ's decision to the BIA, which affirmed the decision and ordered Sotnikau's removal. Stonikau petitioned the Fourth Circuit for review.

The Fourth Circuit granted relief. In examining whether Virginia's involuntary manslaughter offense is a crime involving moral turpitude, the Fourth Circuit used the categorical approach outlined in Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012): The court looks at the elements of the crime at issue and determines whether those elements solely encompass behavior that involves moral turpitude. If they do, the crime is categorically one involving moral turpitude. But if those elements can include behavior that does not involve moral turpitude, the crime is not categorically one involving moral turpitude.

The Fourth Circuit started by discussing the definition of "moral turpitude." Citing the BIA decision In re Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992), the Fourth Circuit found that moral turpitude is present "[w]here knowing or intentional conduct is an element of an offense." Those circumstances include criminally reckless conduct, which "reflect[s] a willingness to disregard the risks inherent in the conduct." Criminally negligent conduct, however, is not included because "there [is] no intent required for conviction, nor any conscious disregard of a substantial and unjustifiable risk."

In analyzing the elements of Virginia's involuntary manslaughter offense, the Fourth Circuit found that the offense requires that "the offender either knew or should have known the probable results of his acts." See Conrad v. Commonwealth, 521 S.E.2d 321, 326 (Va. Ct. App. 1999 (en banc)). Thus, the court held that an involuntary manslaughter conviction can be secured in Virginia upon a showing of criminal negligence, without proving a conscious disregard of risks attendant to the offender's conduct. Therefore, the Fourth Circuit concluded that Virginia's involuntary manslaughter offense is not categorically a crime involving moral turpitude.

In response to the IJ's reliance on the In re Franklin decision, the Fourth Circuit held that decision did not control the outcome of this case because the definition of involuntary manslaughter in Virginia is "materially distinguishable" from the definition of involuntary manslaughter in Missouri. The court noted that while Missouri's involuntary manslaughter requires a "conscious disregard of a substantial and unjustifiable risk," Virginia's involuntary manslaughter does not.

To read the full opinion, click here.

Panel: Judges Niemeyer, King, and Agee

Argument Date: 12/08/2016

Date of Issued Opinion: 01/24/2017

Docket Number: No. 15-2073

Decided: Petition for review granted; vacated and remanded by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jason Matthew Zarrow, O'MELVENY & MYERS LLP, Washington, D.C., for Petitioner. Keith Ian McManus, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Mary Patrice Brown, O'MELVENY & MYERS LLP, Washington, D.C., for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Circuit Judge King

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2017 03:23 PM     4th Circuit     Comments (0)  

  Patterson v. Commissioner of Social Security Administration -- Fourth Circuit
'Show Your Work' - Fourth Circuit Remands SSA Claim for ALJ's Failure to Employ Special Technique in Evaluating Claimant's Mental Impairment

Area of Law: Administrative Law

Issue Presented: Whether an Administrative Law Judge's failure to follow the special technique required by 20 C.F.R. § 404.1520a when evaluating a claimant's mental impairment requires remand or may constitute harmless error.

Brief Summary: On an issue of first impression, the United States Court of Appeals for the Fourth Circuit held that an Administrative Law Judge's failure to follow the special procedures outlined in 20 C.F.R. § 404.1520a does not automatically require remand, but that the error was not harmless on the facts of the present case. Accordingly, the Fourth Circuit reversed the district court's order with instructions to remand to the Administrative Law Judge for appropriate review of claimant's impairment.

Extended Summary: In 2010, the Social Security Administration ("SSA") denied Constance L. Patterson's ("Patterson") application for disability insurance benefits. Patterson filed a request for a hearing, after which an Administrative Law Judge ("ALJ") affirmed the SSA's decision. The ALJ found Patterson was not disabled during the period for which she sought benefits based primarily on the conclusions of one doctor. Patterson sought review of the ALJ's decision on the grounds that the ALJ (1) failed to follow the special technique outlined in 20 C.F.R. § 404.1520a and (2) reached a decision without considering other medical evidence. The SSA's Appeals Council denied relief and Patterson subsequently filed suit in federal district court. The magistrate recommended affirming the SSA, on the grounds that (1) substantial evidence supported all of the ALJ's challenged findings and (2) the ALJ's failure to articulate his findings in accordance with the special technique regulation constituted harmless error. The district court adopted the magistrate's recommendation and affirmed the SSA's decision.

On appeal, Patterson sought to remand the case to the SSA for proceedings consistent with the regulations. Counsel for the SSA conceded the ALJ failed to apply the special technique regulation, but argued remand was unnecessary because the Fourth Circuit could conduct the analysis itself in determining whether substantial evidence supported the ALJ's denial of benefits. The court disagreed. The court found the ALJ's failure to use the special-technique regulation frustrated effective judicial review. In deciding this issue of first impression, the Fourth Circuit noted a split among its sister circuits on whether harmless error review applies. The court disagreed with the Sixth Circuit's holding in Rabbers v. Comm'r Soc. Sec. Admin., 582 F.3d 647 (6th Cir. 2009), that the special technique regulation offers only non-binding guidance for the benefit of the ALJ. The court reasoned that the plain language of the regulation describes what the SSA must do and the fact that the SSA chose to codify the procedure in a regulation prevents a conclusion that the special technique process was simply for the benefit of ALJs. Further, the court reasoned, an ALJ's failure to properly document application of the special technique would rarely be harmless because such a failure prevents judicial review.

The court noted that although the failure to follow the special technique regulation may not always require remand, the error did require remand in this case because the ALJ did not explain how he weighed all relevant evidence, nor did he explain how he reached his conclusions about the severity of the mental impairment as required by the regulation. The court did not take a position on the merits of Patterson's application for disability benefits because reviewing the ALJ's mental impairment evaluation was beyond the scope of its review. Ultimately, the Fourth Circuit reversed the district court's order with instructions to remand to the SSA for proceedings consistent with its own regulations in the interest of judicial efficiency.

To read the full opinion, click here.

Panel: King, Duncan, and Keenan, Circuit Judges

Argument Date: 12/07/2016

Date of Issued Opinion: 01/19/2017

Docket Number: No. 15-2487

Decided: Reversed and remanded with instructions by published opinion.

Case Alert Author: Yvette Pappoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: William Daniel Mayes, SMITH, MASSEY, BRODIE, GUYNN & MAYES, P.A., Aiken, South Carolina, for Appellant. Evelyn Rose Marie Protano, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Nora Koch, Acting Regional Chief Counsel, Charles J. Kawas, Acting Supervisory Attorney, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; William N. Nettles, United States Attorney, Marshall Prince, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Author of Opinion: Judge Duncan

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2017 10:47 AM     4th Circuit     Comments (0)  

February 22, 2017
  United States v. Robinson -- Fourth Circuit
Gun Owners, Beware: Armed = Dangerous

Areas of Law: Fourth Amendment, Second Amendment

Issue Presented: Whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonable believes to be equipped with a firearm, if state law allows persons to carry concealed firearms with a permit.

Brief Summary: The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of the defendant's motion to suppress a firearm uncovered during a frisk, because the frisk was justified. Citing Terry v. Ohio, 392 U.S. 1 (1968), and Pennsylvania v. Mimms, 434 U.S. 106 (1997), the Fourth Circuit held that when an officer reasonably suspects the person he has stopped is armed, the officer is "warranted in the belief that his safety . . . [is] in danger," thus justifying a Terry frisk. Accordingly, the Fourth Circuit concluded that because the officers made a lawful traffic stop and had reasonable suspicion to believe that the defendant was armed, the frisk was lawful.

Extended Summary: On the afternoon of March 24, 2014, the West Virginia Police Department received an anonymous tip. The tipster stated that a black male in the parking lot of a 7-Eleven had just loaded a firearm, concealed it in his pocket, and climbed into a blue-green Toyota Camry being driven by a white woman. Knowing that the parking lot was frequently used as a site for drug trafficking, Officer Hudson and Captain Roberts immediately responded. After observing a blue-green Toyota Camry driven by a white woman with a black male passenger who were not wearing seatbelts, Officer Hudson effected a traffic stop. Officer Hudson asked the driver for her license, registration, and proof of insurance. He also asked the passenger, the appellant, Shaquille Robinson, for his identification and to step out of the car.

As Robinson was exiting the vehicle, Captain Roberts asked Robinson if he had any weapons on him. Robinson "gave [Roberts] a weird look." Captain Roberts took the look to mean, "I don't want to lie to you, but I'm not going to tell you anything [either]." At that point, Captain Roberts directed Robinson to put his hands on the car and performed a frisk for weapons, recovering a loaded gun from Robinson's pocket.

Robinson was charged with illegal possession of a firearm by a felon. In the district court, he filed a motion to suppress the firearm, arguing that the frisk violated his Fourth Amendment rights. As explained in Terry v. Ohio, 392 U.S. 1 (1968), an officer can frisk a validly stopped person if the officer reasonably suspects the person is "armed and dangerous."

Robinson argued that the officers did not have reasonable suspicion to believe he was dangerous for two reasons. First, at the time of the frisk, West Virginia residents could lawfully carry a concealed firearm if they had a license. Because the police did not know whether Robinson possessed such a license, the tip that a suspect matching his description was carrying a loaded firearm concealed in his pocket was a report of innocent behavior that was not sufficient to indicate that he posed a danger to others. Second, Robinson argued that his behavior during the stop - being compliant, cooperative, and not displaying signs of nervousness - did not create suspicion.

The district court denied Robinson's motion to suppress. The district court explained that the "anonymous tip that [Robinson] [had] recently loaded a firearm and concealed it on his person in a public parking lot in a high-crime area," as well as Robinson's "weird look and failure to verbally respond to the inquiry whether he was armed," gave rise to the officers' reasonable suspicion that Robinson was armed and dangerous.

Robinson appealed the denial of his motion to suppress, and a panel of the Fourth Circuit reversed the district court's decision and vacated Robinson's conviction. The government then filed a petition for rehearing en banc. The full court vacated the panel's judgment and opinion.

Relying on Terry v. Ohio and Pennsylvania v. Mimms, the Fourth Circuit held that when an officer reasonably suspects the person he has stopped is armed, the officer is "warranted in the belief that his safety . . . [is] in danger," thus justifying a Terry frisk. The Fourth Circuit first acknowledged the Supreme Court's statement in Terry discussing the legality of the frisk: "there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." "[T]he danger," the Fourth Circuit concluded, "was thus found in the presence of a weapon during a forced police encounter."

Second, the Fourth Circuit acknowledged similar language in both Terry and Mimms regarding the relationship between "armed" and "dangerous." In Terry, in approving an officer's frisk of Terry, the Supreme Court stated that "a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety." In Mimms, the Supreme Court found the frisk there was justified because the bulge in Mimms' jacket "permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer." The Fourth Circuit concluded that in both Terry and Mimms, the Supreme Court deliberately linked "armed" and "dangerous," recognizing that the risk of danger is created simply because the person, who was forcibly stopped, is armed. Accordingly, the Fourth Circuit held that, in the present case, because the officers made a lawful traffic stop and had reasonable suspicion to believe that Robinson was armed, the frisk was lawful.

Robinson also argued that Mimms was distinguishable because the frisk there took place in a jurisdiction that made it a crime to carry a concealed deadly weapon, while West Virginia permitted its citizens to carry firearms. Robinson argued that when the person forcibly stopped might be legally permitted to possess a firearm, the risk of danger posed by the firearm is eliminated. The Fourth Circuit rejected this argument as well. Citing Adams v. Williams, 407 U.S. 143, 146 (1972), the Fourth Circuit held that the legality of the frisk does not depend on the illegality of the firearm's possession.

Finally, in dicta, the Fourth Circuit agreed with the district court's findings that the reliable tip that Robinson had recently loaded a firearm and concealed it in his pocket in a public parking lot in a high-crime area, as well as Robinson's failure to verbally respond to the inquiry whether he was armed, gave rise to a reasonable suspicion that Robinson was armed and dangerous. As a result, the Fourth Circuit affirmed the district court's decision.

Judge Harris (together with Chief Judge Gregory, Circuit Judge Motz, and Senior Judge Davis) disagreed with the majority's interpretation of "armed and dangerous." Judge Harris acknowledged that for many years, carrying firearms in public was prohibited or closely regulated, and a concealed gun was indicative of criminal activity and might give rise to "reasonable suspicion" sufficient to justify an investigative stop. However, Judge Harris emphasized, "that is no longer the case, at least in states like West Virginia."

Judge Harris observed that within the last decade, federal constitutional law has recognized new Second Amendment protections for individual possession of firearms, see McDonald v. City of Chicago, 561 U.S. 742, 791 (2010); District of Columbia v. Heller, 554 U.S. 570, 635 (2008); and state law has followed, providing expanded rights to carry guns in public, see United States v. Williams, 731 F.3d 678, 691 (7th Cir. 2013). Citing United States v. Black, 707 F.3d 531, 539-40 (4th Cir. 2013), Judge Harris noted that the Fourth Circuit had held that when a state elects to legalize the public carrying of firearms, the Fourth Amendment equation changes, and public possession of a gun is no longer "suspicious" in a way that would authorize a Terry stop. This view, Judge Harris found, had been supported by the Third, Sixth, and Seventh Circuits.

Therefore, Judge Harris concluded that in a state like West Virginia, which broadly allows public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person also is dangerous, so as to justify a Terry frisk. Additionally, none of the conduct reported in the anonymous tip was illegal under West Virginia law, or unusual where it occurred.

Judge Harris refused to "endorse a rule that puts us on a collision course with rights to gun possession rooted in the Second Amendment and conferred by state legislatures. Nor would [she] adopt a rule that leaves to unbridled police discretion the decision as to which legally armed citizens will be targeted for frisks, opening the door to the very abuses the Fourth Amendment is designed to prevent."

To read the full opinion, click here.

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

Argument Date: 09/22/2016

Date of Issued Opinion: 01/23/2017

Docket Number: No. 14-4902

Decided:
Affirmed by published opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kristen M. Leddy, Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Jarod J. Douglas, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Author of Opinion: Judge Niemeyer

Dissenting Opinion:
Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/22/2017 12:52 PM     4th Circuit     Comments (0)  

February 21, 2017
  United States v. Moreno-Tapia -- Fourth Circuit
Since-Vacated Convictions Cannot Undo Conviction or Sentencing Enhancement for Illegal Reentry

Areas of Law: Immigration Law, Criminal Law, Sentencing Guidelines

Issue Presented: Whether an undocumented person can collaterally attack an illegal reentry charge on the ground that his original deportation proceedings was predicated on since-vacated convictions. Whether the District Court wrongly considered since-vacated convictions when determining a defendant's sentencing range under the "crime of violence" provision in the Sentencing Guidelines.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment denying the defendant's motion to vacate his prior removal order and to withdraw his guilty plea to the charge of illegal reentry. Moreover, the Fourth Circuit found no error in the District Court's reliance on the defendant's vacated state convictions in determining his sentencing range under the Sentencing Guidelines.

Extended Summary: This case arose from the illegal reentry of a Mexican native. As a child, defendant-appellant Juan Antonio Moreno-Tapia ("Moreno-Tapia") immigrated to the United States from Mexico with his family. Although his parents and five siblings became legal permanent residents, Moreno-Tapia was unable to obtain legal permanent residency.

In 2006, Moreno-Tapia pled guilty to three charges of indecent liberties with a child, arising from a consensual relationship with a fifteen-year-old girl when he was twenty-one years old. The state court sentenced Moreno-Tapia to a sentence of fifteen to eighteen months' imprisonment and ordered him to register as a sex offender upon release. Neither the state court nor his attorney informed Moreno-Tapia of the immigration consequences associated with his guilty plea. Thereafter, the Department of Homeland Security ("DHS") initiated expedited removal proceedings against Moreno-Tapia. He was deported in 2009.

At some point prior to 2011, Moreno-Tapia reentered the United States without permission and was subsequently arrested. In 2014, Moreno-Tapia was charged with illegal reentry by a removed alien and with failure to register as a sex offender. Moreno-Tapia pled guilty to illegal reentry, and the District Court dismissed the charge for failure to register.

In 2015, Moreno-Tapia moved to vacate his 2006 convictions in state court. Specifically, Moreno-Tapia argued that his lawyer's failure to disclose his plea's immigration consequences rendered his 2006 convictions unconstitutional under the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010). The state court agreed and vacated Moreno-Tapia's 2006 convictions. Moreno-Tapia then returned to the District Court, moving to (1) vacate his 2009 removal order and withdraw his 2014 guilty plea for illegal reentry and (2) dismiss both counts of his 2014 indictment. The District Court denied both motions. On appeal, Moreno-Tapia challenged his federal charges and the enhancement of his sentence due to his since-vacated convictions.

To establish illegal reentry, the government must prove the defendant's prior removal, which generally requires a DHS removal order. The defendant, however, may bring a collateral attack against a removal order by demonstrating the following: (1) the defendant exhausted available administrative remedies; (2) the deportation proceedings improperly deprived the defendant of the opportunity for judicial review; and (3) the order's entry was fundamentally unfair. Moreno-Tapia argued that his immigration proceedings were fundamentally unfair, because they were grounded on unconstitutional, since-vacated convictions.

The Fourth Circuit affirmed the District Court's judgment. The Fourth Circuit declined to decide whether due process permits a collateral attack against an immigration order based on the constitutionality of an underlying conviction. Instead, the Fourth Circuit concluded that Moreno-Tapia's state convictions were in fact constitutional despite being vacated. Because the Supreme Court's 2010 decision in Padilla does not apply retroactively, the failure to warn Moreno-Tapia of his plea's immigration consequences did not render his 2006 convictions unconstitutional.

Turning to his sentence, Moreno-Tapia argued that the District Court improperly considered his since-vacated convictions when calculating his Sentencing Guidelines range. Rejecting this argument, the Fourth Circuit asserted that the relevant time for determining whether a prior conviction triggers enhancement under the "crime of violence" provision is the date of deportation, rather than the date of the subsequent illegal reentry charge or sentencing hearing. The Fourth Circuit articulated two reasons for its conclusion. First, the enhancement provision is written in the past tense, applying only if a defendant "previously was deported . . . after[] a conviction." Second, the enhancement provision did not expressly exclude since-vacated convictions from consideration. The Fourth Circuit further declined to find an exception for unconstitutional convictions, emphasizing again that Moreno-Tapia's state convictions were in fact constitutional.

To read the full opinion, click here.

Panel: Judges Harris, Traxler, and Diaz

Argument Date: 10/28/2016

Date of Issued Opinion: 01/26/2017

Docket Numbers: No. 15-4610

Decided: Affirmed by published opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law

Counsel:
John Arthur Duberstein, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Anand P. Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/21/2017 04:39 PM     4th Circuit     Comments (0)  

  United States v. Schmidt -- Fourth Circuit
Americans Abroad: No Transfer of Citizenship? No Property Abroad? You Are Still a "Traveler in Foreign Commerce" under U.S. Jurisdiction

Areas of Law: Criminal Law, Habeas Corpus

Issue Presented: Whether the defendant's "travel in foreign commerce" for purposes of 18 U.S.C. § 2423(c) ended after he departed the United States for the Philippines, got a work permit, had a full-time job, rented a home, used a local driver's license, and stayed in the Philippines for eighteen months.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the defendant was travelling in foreign commerce from the time he departed the United States until the time of his illicit sexual conduct in Cambodia. Citing United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007) and United States v. Bollinger, 798 F. 3d 201 (4th Cir. 2015), the Fourth Circuit construed "travel in foreign commerce," under 18 U.S.C. § 2423(c), as any movement abroad that maintains some nexus with the United States. Where Richard Schmidt kept a substantial amount of money in a United States bank account, never purchased any property abroad, and never made an effort to obtain permanent legal status in another country, the Fourth Circuit found that he was merely a visitor in the Philippines and Cambodia. Therefore, the Fourth Circuit reversed the district court's grant of the defendant's habeas corpus petition.

Extended Summary: Richard Schmidt ("Schmidt") is a sexual predator who has been repeatedly convicted of sex offenses involving young boys. In June 2002, to avoid arrest for allegedly making unauthorized contact with a minor in violation of his parole, Schmidt fled the United States for the Philippines. In the Philippines, Schmidt worked as a school instructor until he was arrested by Philippine authorities on charges of once again sexually molesting young boys. In December 2003, during a period of pre-trial release, Schmidt fled to Cambodia. His pattern of sex misconduct continued there and he was arrested by Cambodian authorities. Schmidt was subsequently deported to the United States to face numerous criminal charges, including a violation of 18 U.S.C. § 2423(c) ("§ 2423(c)") for illicit sexual conduct in Cambodia. Schmidt pled unconditionally guilty to this charge and was sentenced to a prison term of fifteen years and a lifetime of supervised release.

Schmidt filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of Maryland. He argued that he was innocent of violating § 2423(c) and that his counsel was ineffective for failing to notice this defect at the time he entered his plea.

Section 2423(c) provides that "[a]ny United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both."

Schmidt contended that his travel in foreign commerce ended during his stay in the Philippines, long before his illicit sexual conduct in Cambodia. He further claimed that any subsequent travel, such as his flight to Cambodia, was not independent travel in foreign commerce for purposes of § 2423(c). The district court agreed.

The Fourth Circuit disagreed, holding that Schmidt was "traveling in foreign commerce" from the time he departed the United States until the time of his illicit sexual conduct in Cambodia. The Fourth Circuit started its analysis by interpreting the term "travel in foreign commerce." First, the Fourth Circuit held that the term "travel" did not simply encompass movement from one place to another, but instead denoted a broader concept of movement abroad. Citing the Ninth Circuit's decision in United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007), the Fourth Circuit found that a person might still be traveling even after a significant amount of time in a given location so long as the visit was sufficiently transient or contemplated eventual departure. Thus, the Fourth Circuit concluded that travel could continue until a party either returned to his or her place of origin or permanently resettled elsewhere. Second, citing United States v. Bollinger, 798 F. 3d 201 (4th Cir. 2015), the Fourth Circuit held that "foreign commerce" required some nexus with the United States. Therefore, the Fourth Circuit construed "travel in foreign commerce" as "movement abroad that maintain[ed] some nexus with the United States."

Schmidt first argued that his travel in foreign commerce ended shortly after he arrived in the Philippines because he got a work permit, had a full-time job, rented a home, used a local driver's license, and remained in the Philippines for eighteen months. The Fourth Circuit disagreed, holding that Schmidt's status remained transient in the Philippines and Cambodia. The Fourth Circuit observed that Schmidt stayed in the Philippines on tourist visas and worked using an "alien employment permit" for "non-resident foreign nationals." Further, the Fourth Circuit found that Schmidt maintained a substantial amount of money in a United States' bank account, and never purchased a home or other property abroad. Specifically, the Fourth Circuit noted that Schmidt continually traveled on a United States passport and made no effort to obtain permanent status in another country. Therefore, the Fourth Circuit concluded that he was "just a visitor in the Philippines and Cambodia."

Schmidt also argued that his travel in foreign commerce ended shortly after he arrived in the Philippines because he had no intention of returning to the United States. The Fourth Circuit, however, observed that the element of travel and requisite nexus with the United States was an objective inquiry that did not turn solely on self-serving and subjective allegations of intent. Even though intent to permanently resettle might be one factor in determining when relevant travel in foreign commerce comes to an end, the Fourth Circuit found that it was not dispositive.

Finally, the Fourth Circuit compared Schmidt's case with United States v. Jackson. In United States v. Jackson, the Ninth Circuit concluded that the defendant's travel in foreign commerce ended after he moved to Cambodia, purchased a home, and commenced the five-year residency requirement for Cambodian citizenship. The defendant and his partner also sold their home and remaining property in the United States, transferring all their assets to Cambodia. The Fourth Circuit found that Schmidt's stay displayed none of these features. Therefore, the Fourth Circuit reversed the district court's decision and remanded for reinstatement of the judgment of conviction.

To read the full opinion, click here.

Panel: Judges Wilkinson, Agee, and Harris

Argument Date: 12/06/2016

Date of Issued Opinion: 01/04/2017

Docket Number: No. 16-6567

Decided: Reversed by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellant. Mary Elizabeth Davis, DAVIS & DAVIS, Washington, D.C., for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/21/2017 10:49 AM     4th Circuit     Comments (0)  

February 3, 2017
  Metro Machine Corp. v. Dir., Office of Workers' Comp. Programs, U.S. Dept. of Labor -- Fourth Circuit
Expansive Presumption Under Longshore and Harbor Workers' Compensation Act

Areas of Law: Federal Maritime Workers' Compensation, Administrative Law

Issue Presented: Whether claims for "secondary" injuries and injuries not listed on an original claim form are entitled to the Longshore and Harbor Workers' Compensation Act's presumption that they fall within the Act unless there is substantial evidence to the contrary.

Brief Summary:
The United States Court of Appeals for the Fourth Circuit denied the petition for review of a Benefits Review Board order affirming the ALJ's grant of a medical benefits claim under the Longshore and Harbor Workers' Compensation Act ("the Act"). The Fourth Circuit rejected the petitioner's argument that only primary injuries are entitled to the statutory presumption that they fall within the Act unless there is substantial evidence to the contrary. As long as a claimant identifies a primary injury that arose during work, secondary injuries are also entitled to the presumption. Moreover, the Act does not bar recovery for an injury that a claimant fails to identify on the original claim form but that evolves as a part of the claim without prejudice to the respondent.

Extended Summary: Claimant John Stephenson ("Claimant") began working for petitioner Metro Machine Corporation ("Metro") as a pipefitter in 1983. He had a long history of breathing problems and in 1996 was diagnosed with chronic obstructive pulmonary disease (COPD). On February 18, 2008, Claimant worked in the superstructure of a vessel and inhaled fumes from welding, burning, and the application of epoxy paint for over eight hours. During a subsequent eight-day hospitalization, Claimant was prescribed steroids, inhalers, antibiotics and albuterol. Upon discharge, he was prescribed a nebulizer and oxygen concentrator. After Claimant voluntarily retired in 2011, he was treated for a T7 vertebra fracture that his doctor attributed "most likely" to excessive coughing. In 2012, Claimant filed a claim for compensation under the Act.

The Act requires employers to provide medical care to employees who suffer an "injury." The Act defines injury to include both primary and secondary injuries. Primary injuries are those that arise out of, and in the course of, employment, while secondary injuries are those that "naturally or unavoidably result[]" from primary injuries. The Act also permits a presumption that any claim filed under it is presumed to fall within the Act unless there is substantial evidence to the contrary.

The only injury Claimant identified on his original claim form was exposure to fumes on February 18, 2008, that affected his lungs. At the informal conference regarding the claim, however, the claims examiner recommended payment of benefits for both Claimant's ongoing COPD and his fractured vertebra. Despite the recommendation, the ALJ only considered Claimant's COPD claim and found that he made a prima facie case showing harm, the worsening of the COPD, and a work incident that could have aggravated the harm. Therefore, the ALJ found that the presumption applied to the claim. Claimant moved for reconsideration due to the ALJ's failure to consider his fractured vertebra claim. After granting the motion, the ALJ rejected Metro's argument that the statutory presumption did not apply to the fractured vertebra injury because the Claimant did not identify it in his original claim form. Subsequently, the ALJ found the Claimant made a prima facie case with regard to the fracture and the presumption applied. The Benefits Review Board ("Board") affirmed the ALJ's decision. With regard to the vertebra fracture, the Board rejected Metro's arguments that the presumption could not apply to the claim because: (1) it was a secondary injury; and (2) it was outside the scope of Claimant's initial claim.

On appeal, the Fourth Circuit found no reversible error and denied the petition for review. After rejecting two of Metro's evidentiary arguments regarding the COPD claim, the court turned to Metro's argument that because Claimant's fracture was secondary and not identified in the original claim form, the presumption should not have applied to this claim regardless of whether Claimant made prima facie cases. In support of its argument that secondary injuries were not entitled to the presumption, Metro relied on two split-panel decisions by the Fifth Circuit in addition to the United States Supreme Court case U.S. Indus./Fed. Sheet Metal, Inc. v. Dir., OWCP, 455 U.S. 608 (1982). The Fourth Circuit found that Metro misread U.S. Industries. Contrary to Metro's reading, that case stands for just two propositions: (1) the statutory presumption only applies to injuries actually claimed; and (2) a claim must include a primary injury. Because the ALJ found that Claimant suffered a primary injury when his COPD was exacerbated, U.S. Industries posed no obstacle.

Addressing whether the presumption applied to the vertebra fracture, the court noted that Metro did not challenge that the claim evolved to include this injury. Moreover, Metro was made aware that Claimant was seeking medical benefits for this injury as early as the initial informal conference. Metro therefore could not claim that its ability to defend itself against this claim at the ALJ hearing, 16 months after the initial conference, was prejudiced by the failure of Claimant to initially include the injury.

The court also rejected Metro's argument that the ALJ failed to apply the "naturally or unavoidably results" standard under the Act for secondary injuries. While the court did agree that the ALJ made no reference to this standard, it concluded that the evidence clearly showed that this standard was met and remanding the case would be "futile." Finally, the court rejected Metro's argument that substantial evidence did not support the ALJ's conclusion that Metro failed to rebut the presumption with regard to the fracture.

To read the full opinion, click here.

Panel: Judges Traxler, Floyd and Thacker

Argument Date: 12/8/2016

Date of Issued Opinion: 1/20/2017

Docket Number: No. 15-2525

Decided:
Petition denied by published opinion

Case Alert Author: Annie McGuire, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Frank Nash Bilisoly, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Petitioners. Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk, Virginia; Matthew W. Boyle, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Mark Reinhalter, Counsel for Longshore, Sean G. Bajkowski, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent United States Department of Labor.

Author of Opinion: Judge Traxler

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/03/2017 01:43 PM     4th Circuit     Comments (0)  

February 2, 2017
  Lynch v. Jackson -- Fourth Circuit
Debtors Filing For Bankruptcy May List Higher Amounts Than Actually Spent

Areas of Law: Bankruptcy

Issue Presented: Whether a debtor filing for bankruptcy can use the National and Local Standard amounts for expenses even if his or her actual expenses are lower.

Brief Summary:
The United States Court of Appeals for the Fourth Circuit affirmed the United States' Bankruptcy Court for the Eastern District of North Carolina's holding that debtors seeking bankruptcy relief are entitled to the full National and Local Standard amount for a category of expenses if they incur any expense within the category.

In Ransom v. FIA Card Servs., 562 U.S. 61 (2011), the Supreme Court interpreted 11 U.S.C. §707(b)(2)(A)(ii)(I), and held that an expense amount is applicable to a debtor under the provision "only if the debtor will incur that kind of expense during the life of the plan." However, the Court did not determine how a debtor should list expenses that are lower than the amounts listed in the National and Local Standards. As such, the Fourth Circuit addressed the unanswered question and determined that the plain language of the statute entitles a debtor to list the full amount provided under the National and Local Standards for expenses, even if their incurred expenses are less than the amounts listed by the Standards.

Extended Summary: On April 6, 2015, Plaintiffs Gabriel and Monte Jackson filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of North Carolina. The Jacksons made more than the median income for a family of four and therefore were required to complete a means test to determine their disposable income. A test revealing disposable income above a certain level would be considered an abuse of the bankruptcy code and would prevent the debtor from proceeding in Chapter 7. The test required the Jacksons to use Official Form 22A-1 and 22A-2 as provided pursuant to 28 U.S.C. § 2075.

These forms instruct submitters to use certain expense amounts as provided under the National and Local Standards to answer certain questions and to deduct the enumerated expense amounts "regardless of [the submitters'] actual expenses." Following the instructions provided, the Jacksons included the standard expense amounts on their forms. However, on June 3, 2015, Bankruptcy Administrator Marjorie Lynch moved to dismiss the Jacksons' petition for abusing the bankruptcy code. Lynch argued that the official form instructions were incorrect and that a Chapter 7 debtor was "limited to deducting their actual expenses or the applicable National or Local Standard, whichever [was] lesser." The Jacksons argued that the statute was unambiguous in directing debtors to use the full National and Local Standard expense amounts.

The bankruptcy court denied Lynch's motion on the basis that the Jacksons complied with the statute. Lynch filed a notice of appeal on September 23, 2015, and all of the parties subsequently jointly filed a certification to appeal directly to the Fourth Circuit on October 21, 2015. The Fourth Circuit granted the bankruptcy court's recommendation for direct appeal to address the split between bankruptcy courts within the Eastern District of North Carolina over interpretation of 11 U.S.C. § 707(b)(2). Turning to the plain language of the statute, the Fourth Circuit found that it unambiguously established that a debtor is entitled to take the full amount of the Standards' expenses if the debtor incurs any expense in that category. Consequently, the Fourth Circuit affirmed the decision of the bankruptcy court.

To read the full opinion click here.

Panel: Judges Motz, Keenan, and Thacker

Argument Date:
12/06/16

Date of Issued Opinion: 01/04/17

Amended Date: 01/05/17

Docket Number: No. 16-1358

Decided:
Affirmed by published opinion.

Case Alert Author:
Vanessa Destime, Univ. of Maryland Carey School of Law
Counsel: ARGUED: Brian Charles Behr, OFFICE OF THE BANKRUPTCY ADMINISTRATOR, Raleigh, North Carolina, for Appellant. Robert Lee Roland, IV, LAW OFFICES OF JOHN T. ORCUTT, P.C., Raleigh, North Carolina, for Appellees. ON BRIEF: Tara Twomey, J. Erik Heath, NATIONAL CONSUMER BANKRUPTCY RIGHTS CENTER, San Jose, California, for Amicus Curiae.

Author of Opinion: Judge Thacker

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/02/2017 09:36 AM     4th Circuit     Comments (0)  

  Ohio Valley Environmental Coalition et al. v. Fola Coal Co., LLC -- Fourth Circuit
Permit Shield Defense Fails to Protect Noncompliant Coal Company

Areas of Law: Environmental Law

Issues Presented: Whether a National Pollution Discharge Elimination System permit required its permit holder to comply with state water quality standards. Whether the trial court erred by finding that a National Pollution Discharge Elimination System permit holder violated the state water quality standards by discharging ions and sulfates in quantities sufficient to increase conductivity.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment that the Fola Coal Company did not comply with the conditions of its permit and therefore was subject to liability under the Clean Water Act.

Extended Summary:
This case arose out of an action against appellant Fola Coal Company, LLC ("Fola") under the Clean Water Act ("Act"). Pursuant to the Act, National Pollution Discharge Elimination System ("NPDES") permits shield permit holders from liability when their pollution discharges comply with permit conditions. Acting under the approval of the Environmental Protection Agency ("EPA"), the West Virginia Department of Environmental Protection ("Department") is charged with the issuance of West Virginia NPDES permits, which incorporate state water quality regulations. Of particular significance to this case, a West Virginia regulation, titled 5.1.f, provided that permit-covered discharges may not violate applicable water quality standards, "whether or not such standards are delineated in the permit."

In 1996, Fola received a West Virginia NPDES permit, which allowed the facility to discharge into a local waterway. When Fola applied for permit renewal in 2009, it disclosed that its discharges would increase conductivity of the affected waterway in violation of state water quality standards. The Department granted the renewal but did not impose limitations on Fola's conductivity levels.

Appellees Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club (collectively "the Coalition") sued Fola under the Act's citizen-suit provision in 2013. The Coalition alleged that Fola discharged ions and sulfates in quantities sufficient to cause increased conductivity and therefore violated the NPDES permit's requirement to comply with state water quality standards. In response, Fola argued that its permit shielded the company from liability, because the Department declined to impose conductivity limits when it renewed the company's permit in 2009. To support its contention, Fola emphasized two points. First, the Department issued a regulatory interpretation that shielded a permit holder from liability upon disclosing its discharges to the Department in 2013. Second, the West Virginia legislature enacted a provision that explicitly prohibited the enforcement of water quality standards against NPDES permit holders in 2015. Rejecting Fola's argument, the District Court held that NPDES permits require compliance with state water quality standards, which Fola violated by depositing significant amounts of ions into the waterway.

On appeal, Fola contended that 5.1.f. regulated the permitting authority only and therefore did not impose obligations on the company to comply with water quality standards. Moreover, in response to the District Court's finding of a violation, Fola argued that (1) it was deprived of "fair notice" of its obligation to comply with water quality standards; (2) it relied on the Department's guidance that West Virginia would not pursue enforcement action; and (3) the District Court engaged in unlawful rulemaking.

Interpreting the NPDES permit as a contract, the Fourth Circuit rejected Fola's argument and held that the text of 5.1.f unambiguously imposed an obligation on the permit holder to comply with state water quality standards. The plain language of 5.1.f and extraneous evidence supported the District Court's determination that NPDES permit holders are obligated to comply with state water quality standards. In particular, the Fourth Circuit emphasized that the Department previously pursued an enforcement action against Fola's parent company for the exact water quality standards at issue in the instant case, removing any doubt that West Virginia intended to hold permit holders liable for violating state regulations. The Fourth Circuit's judgment is consistent with its precedent, which provides that permit holders must comply with all permit terms to be shielded from liability.

Affirming the District Court's finding of a violation, the Fourth Circuit again asserted that Fola's parent company's prior history with enforcement actions provided ample, personalized notice that the NPDES permit was enforceable. The Fourth Circuit also held that, even if Fola believed that West Virginia would not pursue enforcement that did not guarantee that third-party environmental agencies would not do so under the Act's citizen-suit provision. Finally, the Fourth Circuit concluded that the District Court engaged in findings of fact, not unlawful rulemaking.

To read the full opinion, click here.

Panel: Judges Motz, Diaz, and Lee

Argument Date: October 27, 2016

Date of Issued Opinion:
January 4, 2017

Docket Numbers:
No. 16-1024

Decided: Affirmed by published opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Michael Shane Harvey, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant. Joseph Mark Lovett, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellees. Thomas M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amici The State of West Virginia and West Virginia Department of Environmental Protection. ON BRIEF: Robert G. McLusky, Jennifer L. Hughes, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant. J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia; James M. Hecker, PUBLIC JUSTICE, Washington, D.C., for Appellees. Karen C. Bennett, Samuel L. Brown, Brian R. Levey, Kristy Bulleit, HUNTON & WILLIAMS LLP, Washington, D.C.; Jan A. Poling, AMERICAN FOREST & PAPER ASSOCIATION, Washington, D.C.; Amanda Waters, Erica Spitzig, NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES, Washington, D.C.; Linda E. Kelly, Quentin Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, D.C.; Peter Tolsdorf, AMERICAN PETROLEUM INSTITUTE, Washington, D.C.; Tom Ward, NATIONAL ASSOCIATION OF HOME BUILDERS, Washington, D.C., for Amici American Forest & Paper Association, American Petroleum Institute, National Association of Clean Water Agencies, National Association of Home Builders, National Association of Manufacturers, National Mining Association and Utility Water Act Group. John C. Cruden, Assistant Attorney General, David S. Gualtieri, Jennifer Neumann, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States Environmental Protection Agency. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Erica N. Peterson, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia; Kristin Boggs, General Counsel, Thomas L. Clarke, Senior Policy Advisor and Counsel, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Charleston, West Virginia, for Amici The State of West Virginia and West Virginia Department of Environmental Protection.

Author of Opinion: Judge Motz

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/02/2017 08:45 AM     4th Circuit     Comments (0)  

  United States v. Blankenship - - Fourth Circuit
Coal Company Executive's Conviction Leads to New Directive from the Fourth Circuit

Areas of Law: Criminal Procedure

Issue Presented: Whether the district court committed reversible error in providing a "two-inference" instruction, which instructed the jury that if it "view[ed] the evidence in the case as reasonably permitting either of two conclusions - one of innocence, the other of guilt - the jury should, of course, adopt the conclusion of innocence."

Brief Summary:
In a published opinion arising from a criminal trial held in the Southern District of West Virginia, the Fourth Circuit affirmed the appellant's conviction for conspiring to violate federal mine safety laws and regulations. On appeal, the appellant argued that the district court erred in instructing the jury to choose a verdict of not guilty if the evidence equally permitted either a guilty or not guilty verdict. The Fourth Circuit held that, even though this instruction is legally correct in the instant circumstance of equal inferences, it does not describe how the jury should rule if the inference of guilt is stronger yet still not enough to be beyond a reasonable doubt. Therefore, although the use of this instruction was harmless in appellant's case and his conviction was affirmed, the Fourth Circuit directed district courts in the circuit to not use the two-inference instruction going forward.

Extended Summary: The appellant was the chairman and chief executive officer of Massey Energy Company at the time of a tragic accident in 2010. The accident occurred at the company's Upper Big Branch coal mine in West Virginia, and caused the death of 29 miners. For years preceding the accident, the company had been cited by the Mine Safety & Health Administration ("MSHA") for violations of the Mine Safety & Health Act of 1977, 30 U.S.C. § 801, and its implementing regulations. The MSHA identified 549 separate violations at the Upper Big Branch Mine in the year before the accident. Many of those violations were later determined to be key contributing factors in the accident. The appellant was aware of the violations via daily reports and warnings from other senior officials, but stated that it was "cheaper to break the safety laws and pay the fines than to spend what would be necessary to follow the safety laws." The appellant's actions were consistent with this statement, leading to the death of the miners in the accident.

After a grand jury indictment and a subsequent six-week trial, the appellant was convicted of conspiring to violate federal mine safety laws. The district court sentenced appellant to one year of imprisonment and assessed a $250,000 fine, both of which are the maximum allowable under the law for that offense.

On appeal, the appellant disputed four decisions made by the court at trial. As to the first three, the Fourth Circuit considered arguments about the sufficiency of the indictment, the denial of re-cross examination of a witness, and an instruction about the term "willfully" in the applicable statute, but found no error by the district court in any of those decisions. The appellant also challenged the district court's use of the "two-inference" instruction as reversible error.

That instruction told the jury that, if it "view[ed] the evidence in the case as reasonably permitting either of two conclusions - one of innocence, the other of guilt - the jury should, of course, adopt the conclusion of innocence." The Fourth Circuit reviewed the issue de novo to determine if the instruction "accurately and fairly state[s] the controlling law." United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). The Fourth Circuit had never ruled on this particular instruction before, but noted that other federal circuits had. The Second Circuit, in United States v. Khan, 821 F.2d 90, 93 (2d. Cir. 1987), ruled that this instruction was technically correct as a matter of law, but implied that "a preponderance of the evidence standard is relevant, when it is not." Furthermore, the Second Circuit also held that this instruction "says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but no[t] strong enough to be beyond a reasonable doubt."

The Fourth Circuit agreed with this interpretation and therefore "direct[ed] our district courts not to use the two-inference instruction going forward." However, despite this new directive, the Fourth Circuit concluded that the district court's decision was not reversible error because, when viewed as a whole with the several dozen other instructions on reasonable doubt provided by the district court, the government's burden was stated correctly. Therefore, with no reversible error, the Fourth Circuit affirmed the appellant's convictions.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Judge Wynn, and Senior Judge Davis

Argument Date: 10/26/2016

Date of Issued Opinion: 01/19/2017

Docket Number: No. 16-4193

Decided:
Affirmed by published opinion

Case Alert Author: Patrick J.L. Dillon, University of Maryland Carey School of Law

Counsel: ARGUED: William Woodruff Taylor, III, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Appellant. Steven Robert Ruby, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Michael R. Smith, Eric R. Delinsky, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Appellant. Carol A. Casto, United States Attorney, R. Gregory McVey, Gabriele Wohl, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. Christopher A. Brumley, Jeffrey M. Wakefield, Nathaniel K. Tawney, Wesley P. Page, Bradley J. Schmalzer, FLAHERTY SENSABAUGH BONASSO PLLC, Charleston, West Virginia, for Amici Curiae.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

Edited: 02/02/2017 at 09:30 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 02/02/2017 08:11 AM     4th Circuit     Comments (0)  

December 7, 2016
  United States v. Rand -- Fourth Circuit
To Quash or Not to Quash: Fourth Circuit Establishes Standard for Third-Party Subpoenas

Areas of Law: Sixth Amendment, Criminal Procedure

Issue Presented: Whether evidentiary requirements imposed on prosecutors seeking subpoenas also apply to third parties.

Brief Summary: In a published decision written by Chief Judge Gregory, the United States Court of Appeals for the Fourth Circuit wrote, in an issue of first impression, that the district court for the Western District of North Carolina properly used the Nixon test (established in United States v. Nixon, 418 U.S. 683, 689-99 (1974)) when it determined that the appellant's request for a subpoena should be quashed. The appellant claimed: that the Nixon test applied only to prosecutors seeking subpoenas and that the standard embodied in Rule 17(c) of the Federal Rules of Criminal Procedure was the correct standard and thus, his third-party subpoena should not have been quashed because it did not meet the Rule 17(c) standard. The Fourth Circuit disagreed, declined to adopt a lower standard for third-party subpoenas, and wrote that the Nixon standard is not at odds with its interpretation of the Rule 17(c) standard. The Fourth Circuit found that the district court's use of the Nixon standard was correct and for this reason, as well as others established in the opinion, affirmed all of the challenged aspects of the appellant's convictions and sentence.

Extended Summary: This case involved Michael Rand, chief accounting officer of Beazer Homes USA, Inc. (Beazer). Rand was under federal investigation because the government believed he was misrepresenting the company's reported quarterly earnings. There was evidence indicating that Rand engaged in "cookie jar" accounting - the process by which money reserved for a business' future expenditures is taken from or added to the reserve in order to misstate the business' earnings. The government also believed that Rand failed to properly account for transactions involving sale-lease back agreements. These agreements required Rand to sell model homes to investors on behalf of Beazer. Rand would then rent the homes back from those investors until the homes could be sold to third parties. This allowed Beazer to share in the appreciation of the homes even after they were sold.

In March 2007, the FBI began its investigation of Beazer for mortgage fraud. A federal grand jury subpoena was issued to the company on March 23, 2007. The subpoena required the company to keep all emails and documents pertaining to mortgages and sales. On March 28, the company created an email "dumpster." This device saves all deleted emails from employees' trash folders without the employees' knowledge, thereby preventing permanent deletion. By March 30, Beazer's in-house counsel had instructed all employees to not destroy any records, and told Rand directly that he was required to keep everything. That day, and the day before, Rand deleted almost 6,000 emails. In June, Beazer brought in an auditing firm to conduct an internal investigation of its employees. By July 2008, the FBI had interviewed Rand multiple times. During these interviews, Rand admitted 1) to manipulating Beazer's earnings, 2) to the improper sale-lease back agreements, 3) to his mass deleting of emails, and 4) that he knew his conduct was illegal.

Rand was charged with several counts of conspiracy, securities fraud, mismanagement, improper accounting transactions, and obstruction of justice. A jury convicted Rand of seven counts and acquitted him of four. However, Rand was given a new trial due to juror misconduct. The government proceeded on two counts of conspiracy (including wire fraud conspiracy) and three counts of obstruction of justice. Rand was convicted of all five counts. Using the government expert's method of loss calculation to determine Rand's sentence, the district court found a loss of $135 million. This equated with an offense level of 51, resulting in an adjusted offense level of 43 and an advisory guideline sentence of life in prison. The district court ultimately sentenced Rand to 120 months in prison.

Rand appealed to the United States Court of Appeals for the Fourth Circuit. He claimed that the district court made several improper evidentiary rulings. First, Rand argued that the district court abused its discretion when it quashed his subpoena to Beazer, pursuant to Federal Rule of Criminal Procedure 17(c). This presented an issue of first impression for the Fourth Circuit.

Rule 17(c) permits a district court to quash a subpoena if compliance with the subpoena would be unreasonable or oppressive. In 1974, in United States v. Nixon, the Supreme Court instituted a four-part test, establishing the burden that is placed on the subpoena-requesting party. The test requires:(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition." The Nixon Court refined the test into three requirements: relevance, admissibility and specificity.

Rand argued that the Nixon test was only applicable to the prosecution's subpoenas, not to subpoenas issued to third parties - and that the "unreasonable or oppressive" standard, explained in Rule 17(c) was the correct standard. However, the Nixon Court did not decide whether a standard lower than "unreasonable or oppressive" exists because the district court in that case properly quashed the subpoena. The Fourth Circuit has applied the Nixon test to third parties in previous cases, but has also not considered how the Rule 17(c) evidentiary requirement - "unreasonable or oppressive" - should apply to third party subpoenas. Additionally, no federal circuit has applied the Rule 17(c) standard without also employing the Nixon standard in tandem. The Fourth Circuit found that Rand's argument that the Nixon standard was a higher standard that was inconsistent with both Rule 17(c) and his Sixth Amendment right to secure evidence in his favor was flawed. Consequently, the court declined to adopt a lower standard for third party subpoenas and found that the district court's use of the Nixon standard was proper. The Fourth Circuit added that the Nixon standard was not in conflict with the court's interpretation of Rule 17. Therefore, Rand's requests to subpoena Beazer for financial reports over an eight-year period was a "fishing expedition" that the district court rightfully prohibited under Nixon.

The Fourth Circuit also rejected Rand's claims regarding the limitation on certain testimony by a defense expert, the admission of certain lay opinion testimony by government witnesses, and improper comments by the prosecutor during closing. Finally, the court rejected Rand's complaint that his 120-month sentence was procedurally unreasonable.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Judges Niemeyer and Harris

Argument Date: 05/12/2016

Date of Issued Opinion: 08/26/2016

Docket Number: No. 15-4322

Decided: Affirmed by published opinion

Case Alert Author: Vanessa Destime, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Seth Paul Waxman, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Stephen D. Councill, ROGERS & HARDIN LLP, Atlanta, Georgia; Claire J. Rauscher, WOMBLE CARLYLE SANDRIDGE AND RICE LLP, Charlotte, North Carolina; Brent J. Gurney, Jeannie S. Rhee, Kelly P. Dunbar, Matthew Guarnieri, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellant. Jill Westmoreland Rose, United States Attorney, Maria K. Vento, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/07/2016 11:38 AM     4th Circuit     Comments (0)  

  Clem v. Fleming, Warden, Keen Mountain Correctional Center -- Fourth Circuit
Common Courtesy - Fourth Circuit Instructs District Court to Wait for Virginia Supreme Court's Ruling Before Resolving Habeas Petition

Areas of Law: Constitutional Law, Criminal Law, Habeas Corpus

Issue Presented: Whether the Virginia statute that mandates life imprisonment without parole for juveniles convicted of capital murder violates the United States Supreme Court's holding in Miller v. Alabama, 132 S. Ct. 2455 (2012).

Brief Summary: The United States Court of Appeals for the Fourth Circuit vacated the district court's order denying Jason Clem's successive habeas petition. Clem argued that his sentence as a juvenile to life without parole violated the Eighth Amendment, and the Supreme Court's ruling in Miller v. Alabama, 132 S. Ct. 2455 (2012). The Fourth Circuit remanded the case, but instructed the district court not to rule on Clem's petition until after the Supreme Court of Virginia rules on Jones v. Commonwealth, 763 S.E.2d 823 (Va. 2014), a case challenging the same Virginia sentencing statute.

Extended Summary: On March 8, 2004, Clem was indicted in Virginia for capital murder after he hit a co-worker with a hammer and then stabbed the co-worker with a knife. The co-worker died because of the attack.

On May 12, 2005, a jury found Clem guilty of capital murder. Because Clem was 16-years old at the time of his conviction, the judge instructed the jury that it could not sentence Clem to death. Instead, under Virginia law the jury could either impose a sentence of life imprisonment, or life imprisonment with a fine up to $100,000. The jury returned a verdict of life imprisonment with a $100,000 fine. After a sentencing hearing where the judge heard evidence of Clem's "tumultuous upbringing and history of mental illness" the judge found "no reason to deviate from the jury verdict," and imposed a sentence of life without parole and a $100,000 fine.

The Supreme Court of Virginia denied relief on direct appeal. Clem also unsuccessfully filed a state habeas petition wherein he argued that sentencing a juvenile to life without parole was cruel and unusual punishment. The Supreme Court of Virginia found Clem was procedurally barred from making the claim because it had not been raised on direct appeal. The United States District Court for the Western District of Virginia also rejected Clem's federal habeas petition where he presented similar arguments.

When the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) seven years later, Clem filed an authorized successive habeas petition in district court, challenging his sentence. In Miller, the Court held that the Eighth Amendment prohibits a mandatory life sentence without the possibility of parole for juveniles. Miller also requires a judge or jury to consider mitigating circumstances, including the juvenile's youth and attendant circumstances, during sentencing. On review of Clem's petition, the district court assumed, without deciding, that Miller applied retroactively, and found that Clem was excused from exhausting all of his state remedies before filing a federal habeas petition. However, the district court denied Clem's petition, finding that the judge in the original sentencing hearing considered mitigating factors consistent with the Miller requirements. While Clem's appeal to the Fourth Circuit was being decided, the United States Supreme Court expressly declared that the Miller rule is a substantive rule that applies retroactively. Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

The Fourth Circuit found that Clem had not exhausted all his state remedies because he never raised a Miller claim in the state court. However, the court reasoned that requiring exhaustion would provide no real remedy for Clem because of Virginia's statute of limitations for habeas petitions.

The Fourth Circuit also instructed the district court to wait for the Supreme Court of Virginia to rule in Jones v. Commonwealth, 763 S.E.2d 823 (Va. 2014), before ruling on Clem's habeas petition. Jones challenged the same Virginia statute that Clem challenged in his petition. The Supreme Court of Virginia ruled on Jones after Clem's federal habeas petition was already dismiss. Even though the Supreme Court of Virginia assumed that the Miller rule applied retroactively when deciding Jones, the United States Supreme Court vacated the ruling. The Supreme Court remanded Jones, and instructed the Supreme Court of Virginia to re-consider Jones' petition, because the Supreme Court officially declared that the Miller rule applied retroactively in Montgomery. The outcome in Jones may give Clem a state remedy that he has yet to exhaust or may allow the federal district court to rule because Clem has exhausted all his state remedies.

In a brief concurrence, Senior Judge Davis noted that the Supreme Court of Virginia already assumed the ruling in Miller applied when deciding Clem's petition, so the Court's announcement in Montgomery that Miller applied retroactively should be inconsequential. Judge Davis also reasoned that determining whether a state law violates the Eighth Amendment under Miller and Montgomery is a federal issue, not a state issue.

To read the full opinion, click here.

Panel: Judges Traxler and Duncan, and Senior Judge Davis.

Argument Date: 09/20/2016

Date of Issued Opinion: 10/19/16

Docket Number: No. 14-6682

Decided:
Vacated and remanded by unpublished per curiam opinion. Senior Judge Davis wrote a separate concurring opinion.

Case Alert Author: Fernando Kirkman, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Amy Lynn DeLine, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Robert H. Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

ON BRIEF: Guy S. Neal, Matthew J. Warren, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author of Opinion:
Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/07/2016 11:25 AM     4th Circuit     Comments (0)  

  Smith v. Baltimore City Police Department, et al. - Fourth Circuit
First 'Rodeo'? Try Again - Fourth Circuit Reverses Judgment in Favor of Baltimore City Police Department for Evidence Error

Areas of Law: Evidence, First Amendment, Fourth Amendment

Issue Presented: Whether the district court committed reversible error in admitting evidence of appellant's prior arrests in order to properly calculate damages in a police misconduct case.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court abused its discretion and committed reversible error by admitting appellant's prior arrest as evidence relevant to her claim for damages. The Fourth Circuit found the evidence was not relevant to damages and was prejudicial to Ms. Smith. Thus, the court reversed and remanded the judgment for a new trial.

Extended Summary: In May 2013, Makia Smith sued the Baltimore City Police Department ("BCPD"); then-BCPD Commissioner Anthony Batts; Officers Church and Campbell; and two other officers at the scene, Officers Pilkerton Jr. and Ulmer (collectively, "Appellees"). Ms. Smith testified that she saw two police officers arresting a teenager while she was driving with her daughter on Harford Road and became concerned when she saw one of the officer's knees pressed against the teen's temple. Ms. Smith stopped, got out of her car, and pulled her cell phone out to record what the officers were doing. Officer Church noticed her videotaping and ran toward her. According to Ms. Smith's testimony, she tried to get back in her car when Officer Church snatched the phone from her hand and stomped it. Ms. Smith testified that Officer Church then grabbed her by her hair and dragged her out of the car. She responded by punching, scratching and kicking him. Ms. Smith testified that she felt three or four other people join in the beating, and then blacked out when someone hit her in the back of her head. While she was being arrested, Ms. Smith remembered asking Officer Church if she could call her mother to pick up her daughter, to which Officer Church responded, "No. Child Protective Services will be here to get [her]."

Contrary to that testimony, Officer Church testified that he received a call for back up at Hartford Road. When he arrived, several teenagers were running through the street while Officer Jackson was attempting to arrest another teen. As Officer Church assisted Jackson in his efforts, he heard tires screech as multiple cars came to a stop. When he looked up, he testified that he saw Ms. Smith's car blocking traffic and saw Smith standing behind her car holding her phone up, as if she was videotaping. Officer Church testified that he told Ms. Smith to pull her car to the side or keep moving. She refused, so Officer Church "quickstepped" toward Ms. Smith and told her to move again. She refused again, so he moved closer and told her this was a traffic stop and asked for her license. At that point, Ms. Smith ran back to her car and Officer Church followed, reaching into her car to try to grab her keys. Officer Church testified that Ms. Smith started kicking, punching, and scratching him, so he reaching into the car and pulled her out. He then handcuffed her and began to arrest her. Ms. Smith was arrested and charged with various offenses, but the charges were eventually dropped via a nolle prosequi disposition.

Ms. Smith filed suit on May 8, 2013, alleging excessive force, § 1983 claims for First and Fourth Amendment violations, battery, and false arrest. On March 9, 2015, Ms. Smith filed a motion in limine to exclude all evidence or discussion of her prior arrests: a) second degree assault in 2005, b) fleeing and eluding in 2006, and c) second degree assault in 2010. None of those arrests resulted in convictions. At trial, the judge admitted evidence of Ms. Smith's prior arrests. The district court explained that the evidence was relevant to determine whether Ms. Smith suffered pain and suffering resulting from her encounter with Officer Church. The judge, in admitting the evidence, instructed the jury that the evidence could not be used to attack Ms. Smith's credibility. On cross-examination, Appellee's counsel asked Smith whether this was her "first rodeo," to which Ms. Smith's counsel objected. The district court overruled the objection, again reasoning that the evidence of the prior arrests may be relevant to determining the amount of emotional damages. Ultimately, the jury returned a verdict in favor of Officers Church and Campbell on all counts. Ms. Smith timely appealed.

The Fourth Circuit reviewed the district court's decision for abuse of discretion in what it classified a "classic he-said, she-said" dispute. The sole issue on appeal was whether the district court committed reversible error in admitting evidence of Smith's prior arrests. The appeal turned on whether Smith's prior arrests, which did not involve struggles with police, made it more or less probable that she suffered emotional damage. The court determined that the district court erred because this evidence was not relevant to damages and was prejudicial to Ms. Smith.

On the relevance question, the Fourth Circuit began its analysis by citing Federal Rule of Evidence ("FRE") 404(b), which prohibits the admission of prior-act evidence, and imposes a four-part test for assessing the admissibility of that evidence. The court noted that admission of prior-act evidence under FRE 404(b) is appropriate to assist the jury in measuring the extent of damages. However, the court explained, the evidence must still have probative value on the question of damages. The court relied heavily on Nelson v. City of Chicago, 810 F.3d 1061 (7th Cir. 2016) in finding that Smith's prior arrests were not relevant to the extent of her damages. Citing Nelson, the court reasoned that Smith's claims were directly related to the underlying encounter with the police, not her feelings toward police generally. This, the court remarked, was evidenced by Smith's testimony during cross-examination that she had "never had an interaction like this with an officer before." Further, the court admonished the Appellee's failure to disprove Smith's testimony by instead asking if this were Smith's "first rodeo," therefore hinting that she had been arrested before. The Fourth Circuit determined that the Appellees' line of questioning was a "clear indication that the evidence was being used to show character and propensity, rather than to demonstrate the extent of her damages." Finally, the court explained that the admission of Smith's prior arrests, which were not at all similar in nature to the underlying case, permitted the jurors to "fill in the gaps and let their imaginations run wild." Accordingly, the Fourth Circuit held the district court abused its discretion by admitting evidence irrelevant to damages for the purpose of credibility, propensity, and character of Smith.

Regarding prejudice, the court found the risk of prejudice from the mention of Smith's prior arrests was "enormous." Citing Nelson, the court remarked that admission of prior-act evidence generally impugns character and makes it difficult for a jury to draw a distinction between an arrest and a legal finding of wrongdoing. The court also noted that a judge could mitigate prejudice by giving a "carefully framed" limiting instruction telling the jurors to only consider the evidence of prior arrests insofar as it relates to determining the extent of a plaintiff's emotional damages. The Fourth Circuit found the district court judge's instructions insufficient and "meager" at best. The court reasoned that, while the district court instructed the jury to consider the testimony on the issue of damages, it did not confine the jury's consideration to that issue or mention "character" or "propensity to break the law," both of which are prohibited by FRE 404(b). That, the Fourth Circuit concluded, was enough to make the prejudice far outweigh the perceived probative value of Smith's prior arrests.

In addition to finding error, the court was tasked with determining whether the error was harmless. Here, the Fourth Circuit could not say with fair assurance the judgment was not substantially swayed by the admission of Smith's prior arrests. The court noted that the main issues in the case hinged on which witness the jury believed, therefore making Smith's credibility and character central to its verdict. Thus, the court reasoned, once the jury heard the evidence of Ms. Smith's prior arrests, it was reasonable for the jury to assume "where there's smoke, there's fire." Moreover, the court explained that the insufficient limiting instruction failed to mitigate the "naturally flowing" prejudice from the questioning. As a result, the Fourth Circuit held that the error was not harmless. Therefore, the court reversed the judgment of the district court and remanded the case for a new trial.

To read the full opinion, click here.

Panel: Keenan, Floyd, and Thacker, Circuit Judges

Argument Date: 09/20/2016

Date of Issued Opinion: 11/01/2016

Docket Number: No. 15-1604

Decided: Reversed and remanded by published opinion

Case Alert Author: Yvette Pappoe, Univ. of Maryland Carey School of Law

Counsel: Lawrence S. Greenberg, GREENBERG LAW OFFICE, Baltimore, Maryland, for Appellant. Suzanne Sangree, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Zebulan P. Snyder, GREENBERG LAW OFFICE, Baltimore, Maryland, for Appellant. George Nilson, City Solicitor of Baltimore City, William R. Phelan, Chief Solicitor, Glenn Marrow, Chief of Police Legal Affairs Division, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

Author of Opinion: Judge Thacker

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/07/2016 09:43 AM     4th Circuit     Comments (0)  

  Wells Fargo Equip. Fin., Inc. v. Asterbadi -- Fourth Circuit
Clock Is Reset: Limitation Period for Enforcement Begins to Run on Date of Registration of Foreign Judgment

Areas of Law:
Civil Procedure

Issue Presented: Whether Maryland's 12-year limitation period for enforcement on a foreign monetary judgment begins to run on the date of its registration in Maryland.

Brief Summary: The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision that a monetary judgment the plaintiff obtained against the defendant in Virginia, which the plaintiff registered in Maryland pursuant to 28 U.S.C. § 1963, was enforceable against the defendant in Maryland. The Fourth Circuit construed § 1963 to provide for a new judgment in the district court where the judgment was registered. The Fourth Circuit held that with the registered judgment functioning as a new judgment, Maryland's 12-year limitation period for enforcement ran from the date of registration.

Extended Summary: The enforceability of a registered foreign monetary judgment is governed by 28 U.S.C. § 1963. The statute provides that "a judgment in an action for the recovery of money . . . entered in any . . . district court . . . may be registered . . . in any other district . . . . A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner."

On October 4, 1993, CIT/Equipment Financing, Inc. ("CIT") obtained a $2.63 million judgment against Nabil J. Asterbadi ("Asterbadi") in the United States District Court for the Eastern District of Virginia ("the Virginia Judgment"). The judgment arose from a defaulted debt that Asterbadi incurred to invest in an airplane. Under Virginia law, the judgment remained enforceable for 20 years, i.e., until October 4, 2013. On August 27, 2003, in furtherance of its collection efforts, CIT registered the judgment in the United States District Court for the District of Maryland ("the District Court") pursuant to 28 U.S.C. § 1963. Under Maryland Rule 2-624, "a money judgment expires 12 years from the date of entry or most recent renewal."

In 2007, CIT sold and assigned its judgment against Asterbadi to Wells Fargo Equipment Finance, Inc. ("Wells Fargo"). On April 7, 2015, Wells Fargo began collection efforts and filed a notice of the assignment in the District Court.

Asterbadi argued that Maryland's 12-year limitation period for enforcement on the registered judgment began to run on the date that the Virginia judgment was entered, i.e., on October 4, 1993. Thus, Asterbadi argued that the registered judgment was unenforceable, as its enforceability expired on October 4, 2005, 12 years after 1993. Wells Fargo argued that when the Virginia judgment was registered in Maryland, it became, "in effect, a new judgment" governed by Maryland's 12-year limitation, which began to run on the date of registration, i.e., August 27, 2003. Thus, Wells Fargo argued, the registered judgment would expire on August 27, 2015. On August 26, 2015, Wells Fargo filed a renewal of the registered judgment in the District Court, which it contended, extended the judgment's enforceability under Maryland law to 2027.

The District Court agreed with Wells Fargo, holding that Maryland's time limitation for enforcement of the registered judgment began to run on the date of its registration in Maryland, August 27, 2003, and that the judgment was still enforceable against Asterbadi.

The Fourth Circuit affirmed the District Court's decision. The Fourth Circuit began its analysis by examining the legislative intent of 28 U.S.C. § 1963. The Fourth Circuit discussed three other circuits' cases Stanford v. Utley, 341 F.2d 265 (8th Cir. 1965), Home Port Rentals, Inc. v. International Yachting Group, Inc., 252 F.3d 399 (5th Cir. 2001), and Stiller v. Hardman, 324 F.2d 626 (2d Cir. 1963). Based on these cases, the Fourth Circuit found that the statute was enacted "as a device to streamline the more awkward prior practice of bringing suit on a foreign judgment and thereby obtaining a new judgment on the foreign judgment." Thus, the Fourth Circuit held that § 1963 allows the holder of a Virginia judgment "simply to register the Virginia judgment in Maryland but to retain the benefits of obtaining a judgment under the former practice." Moreover, the Fourth Circuit found the explicit statutory language of § 1963, which states that a district court judgment registered in another district court "shall have the same effect as a judgment of the district court . . . and may be enforced in like manner," supported this conclusion.

Therefore, the Fourth Circuit construed § 1963 to provide for a new judgment in the district court where the judgment was registered. The Fourth Circuit further explained that with the registered judgment functioning as a new judgment, the limitation period for enforcement runs from the date of registration. The Fourth Circuit found that other circuits, such as the Fifth, Eighth, and Ninth Circuits, had reached the same conclusion. See, e.g., Home Port Rentals, 252 F.3d at 405; Stanford, 341 F.2d at 268; In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980, 989 (9th Cir. 2008).

Thus, the Fourth Circuit held the registered judgment would have expired on August 27, 2015 - 12 years from the date of registration August 27, 2003. As Wells Fargo renewed the judgment for another 12 years on August 26, 2015, the registered judgment is enforceable in Maryland until August 26, 2027.

To read the full opinion, click here.

Panel: Circuit Judges Niemeyer and Diaz, and District Judge Keeley

Argument Date: 09/20/2016

Date of Issued Opinion:
11/04/2016

Docket Number: No. 15-2182

Decided: Affirmed by published opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: ARGUED: David B. Lamb, Washington, D.C., for Appellant. Steven Neal Leitess, LEITESS FRIEDBERG PC, Baltimore, Maryland, for Appellee. ON BRIEF: David A. Donohoe, Potomac, Maryland, for Appellant. Gordon S. Young, Pierce C. Murphy, LEITESS FRIEDBERG PC, Baltimore, Maryland, for Appellee.

Author of Opinion: Circuit Judge Niemeyer

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/07/2016 09:27 AM     4th Circuit     Comments (0)  

November 17, 2016
  Sharif v. United Airlines, Inc. and United Continental Holdings, Inc.
FMLA Leave Fraud Does Not Pay for Globetrotting United Airlines Worker

Areas of Law: Labor and Employment, Family and Medical Leave Act (FMLA)

Issue Presented: Whether an employee, who fraudulently took FMLA leave, has sufficient evidence to show that the employer's reasons for disciplining him were pre-textual and the true reason for the discipline was retaliatory.

Brief Summary:
Masoud Sharif took FMLA leave in the middle of an extensive trip to South Africa. His employer, United Airlines, investigated him and found that he had taken the leave fraudulently. When questioned about the leave, Mr. Sharif presented inconsistent narratives. United placed him on leave without pay for dishonesty and fraudulently taking leave. Mr. Sharif retired and sued United for retaliation under the FMLA. The United States Court of Appeals for the Fourth Circuit upheld a grant of summary judgment for United. The court held that Mr. Sharif did not have sufficient evidence to show that United's reasons for disciplining him were a pretext for retaliation. It further admonished that those who fraudulently take FMLA leave cannot take advantage of FMLA's protective provisions.

Extended Summary: On March 16th 2015, Masoud Sharif and his wife embarked on an extended vacation in South Africa. The two took approximately twenty days of leave from their employer, United Airlines. There was just one bump in the plan. Mr. Sharif could not get a co-worker to cover his March 30th shift. Nonetheless, the couple departed for South Africa without reserving return flights.

On March 30th at 7:00 a.m. Cape Town time, Mr. Sharif called United Airlines and left a message informing his employer that he would be taking medical leave under the Family Medical Leave Act (FMLA). Mr. Sharif suffers from panic attacks and was entitled to intermittent leave under the FMLA.

On March 31st, the Sharifs had still not made any reservations to return to Washington. Instead, they flew to Milan to visit Mr. Sharif's niece. Finally, on April 3rd, the Sharifs returned to Washington in time for Mrs. Sharif's next shift.

The United Airlines Employee Resource Center noted that Mr. Sharif had taken just one day of FMLA leave during his long vacation. When they discovered that he had done the same in September 2013, they informed a supervisor, who commenced an investigation. In the course of the investigation, Mr. Sharif was given the opportunity to explain himself to supervisors with a union representative present. Mr. Sharif first said that he was not scheduled to work that day. Then, he said that he did not remember calling out. Finally, he claimed he had started looking for a flight home on March 28th so that he could return for his shift and celebrate Persian New Year in Pittsburgh. He told the investigators that when he could not find a flight back to Washington for his shift he had a panic attack and called United to take leave under the FMLA.

United did not find Mr. Sharif's shifting narrative compelling and suspended him without pay for dishonesty and fraudulently taking FMLA leave - violations of the United Airlines Working Together Guidelines. United made it clear that Mr. Sharif would soon be terminated. The Union suggested that Mr. Sharif retire. Fearing termination, Mr. Sharif retired.

Mr. Sharif filed suit under 29 U.S.C § 2615 (a)(1), which makes it unlawful for an employer to "interfere with, restrain, or deny the exercise or attempt to exercise, any right guaranteed under the" FMLA. United Airlines moved for summary judgment, which the District Court granted. On appeal, Mr. Sharif sought to show he had sufficient evidence that the reasons given for his suspension were pre-textual and that United had actually disciplined him for taking FMLA leave.

The Fourth Circuit explained that the purpose of the FMLA is to provide job security to individuals with serious health conditions who need to take extensive leave. These individuals must provide documentation of their condition to the employer and then may take leave "when medically necessary." The provision of the FMLA under which Mr. Sharif sued bolsters the Act's purpose by preventing retaliation.

In order to prove an employer's action was retaliatory, the employee must show that 1) he engaged in a protected activity; 2) the employer took an adverse action against him; and 3) a causal connection between the protected activity and the adverse action exists. To do this, the employee may submit direct evidence of retaliation or utilize the McDonnell Douglas burden-shifting scheme. Under McDonnell Douglas, if the employee makes a prima facie showing of retaliation, the employer must show a nondiscriminatory reason for the adverse action. Then the employee may show that this reason is pre-textual by showing that a) the reason is not credible; or b) the decision was more likely than not retaliatory.

Mr. Sharif mounted a series of attacks attempting to show United's reasons for disciplining him were pretext. The Fourth Circuit rejected all of these.

First, Mr. Sharif attempted to rehabilitate his own narrative. He claimed he had a panic attack after not being able to find a flight home in time for his shift and then called out of work. He also explained that he gave inconsistent accounts in the interview because he had another panic attack during the interview. The court did not find this explanation convincing in light of other facts. First, Mr. Sharif had called to take the FMLA leave twelve hours after the last flight that would have returned him to Washington in time for his shift. Second, the Sharifs flew to Milan from Cape Town and then returned to Washington in time for the wife's shift. Third, his narrative of these events constantly shifted. Finally, Mr. Sharif was unable to provide receipts for the standby seats he claimed he purchased when asked by United. Based on this information, the court found it reasonable for United Airlines to conclude that Mr. Sharif simply did not want to return from his vacation. The court also recounted United Airlines' history with FMLA leave. It found that United had approved every FMLA leave request Mr. Sharif had submitted over two years - a total of fifty-six days. The court concluded that "this is not the record of a Company that is historically hostile to FMLA leave."

Second, Mr. Sharif claimed that the Employee Resources Center's notice to a supervisor that triggered the investigation was direct evidence of retaliation. But, the notice was purely factual. It stated that Mr. Sharif had taken FMLA leave during vacation and that he had done so before in 2013. Mr. Sharif argued that it showed he would not have been disciplined but for his taking of FMLA leave. The court disagreed and determined that the notice actually suggested a nondiscriminatory reason for United's actions.

Mr. Sharif next argued that United had only conducted a cursory investigation and had not complied with procedure. He said this showed pretext. Contrarily, the court explained, United had taken the appropriate steps in its investigation and had even given Mr. Sharif the opportunity to explain himself and provide proof of his version of the events. United had reviewed Mr. Sharif's work calendar, flight records, Mr. Sharif's phone call from South Africa, and Mr. Sharif's seat reservation history. But, Mr. Sharif stated that more was required - verification of his anxiety disorder, an independent check of seats on flights, and more opportunity to consult with the union. The court found United's actions sufficient. All that is required on the part of the employer is a "reasonably informed and considered decision." Mere failure to comply with procedure is insufficient to show pretext.

Finally, Mr. Sharif claimed that if he had skipped the shift rather than taking FMLA leave, he would not have received such sever discipline. So, the severity of the consequence for taking FMLA leave showed pretext. The court stated that addressing severity would make it a "super-personnel department." The consequences, however, seemed reasonable for fraud and dishonesty.

The court admonished that the FMLA serves the purpose of protecting employees who need intermittent leave. Thus, it cannot be fraudulently invoked. And, the court explained, the Department of Labor has issued regulations that disallow employees who fraudulently obtain FMLA leave from invoking FMLA protections.

Dishonest employees, the court remarked, pose a special risk to airlines that are charged with providing transportation services to the public. The court upheld summary judgment for United.

To read the full opinion, click here.

Panel: WILKINSON and FLOYD, Circuit Judges, and IRENE M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Argument Date: 09/21/2016

Date of Issued Opinion:
10/31/2016

Docket Number: No. 15-1747

Decided: Affirmed by published opinion

Case Alert Author: Laura Tallerico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C., for Appellant. Hugh Scott Johnson, Jr., PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Stephen Z. Chertkof, HELLER, HURON, CHERTKOF & SALZMAN, PLLC, Washington, D.C., for Amici Curiae. ON BRIEF: Andrea M. Downing, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C.; Richard T. Seymour, LAW OFFICE OF RICHARD T. SEYMOUR, P.L.L.C., Washington, D.C., for Appellant. Angela H. France, PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Erik D. Snyder, LAW OFFICES OF ERIK D. SNYDER, Washington, D.C.; Alan R. Kabat, BERNABEI & WACHTEL, PLLC, Washington, D.C.; Matthew C. Koski, NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, Oakland, California, for Amici Curiae.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/17/2016 09:15 AM     4th Circuit     Comments (0)  

  Ripley v. Foster Wheeler LLC -- Fourth Circuit
Scope of "Government Contractor Defense" Expanded to Apply in Failure to Warn Cases

Areas of Law: Products Liability, Federal Jurisdiction

Issue presented: Whether the "government contractor defense" is available to defendants in failure to warn cases.

Brief Summary: The United States Court of Appeals for the Fourth Circuit rejected Eastern District of Virginia guidance which limited the "government contractor defense" to design defect cases. The same rationales that the Supreme Court offered for the defense in design defect cases apply equally to failure to warn claims. Therefore, the Fourth Circuit held that the government contractor defense is available in failure to warn cases.

Extended Summary: Bernard W. Ripley was diagnosed with malignant mesothelioma twenty-five years after he stopped working as a boilermaker at Norfolk Naval Shipyard. Mr. Ripley and his wife brought suit in Virginia state court against multiple defendants including Foster Wheeler LLC and Foster Wheeler Energy Corporation ("Foster"). The complaint alleged that Mr. Ripley was exposed to asbestos contained in products that Foster manufactured for the Navy. The complaint further alleged that Foster failed to warn of the asbestos hazards.

Foster filed a notice of removal in the United States District Court for the Eastern District of Virginia. Foster claimed removal was appropriate under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). To remove a case under this statute, a defendant must establish: "(1) that it is a federal officer or 'a person acting under that officer,'" "(2) a 'colorable federal defense'; and (3) that the suit is 'for an act under color of office.'" Foster asserted a government contractor defense to satisfy the colorable federal defense element. The district court, however, remanded the case to state court, reiterating its "decades-old practice" of denying the government contractor defense in failure to warn cases. Without the defense, the district court did not have federal subject matter jurisdiction.

Foster appealed, asking the Fourth Circuit to reverse the remand order. The Fourth Circuit reversed and remanded the case to the federal trial court, holding that the government contractor defense is available in failure to warn cases and instructing the district court to determine whether Foster presented sufficient proof to warrant removal under the federal officer removal statute.

The Fourth Circuit began by reviewing the United States Supreme Court case Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In Boyle, the Court announced that "design defects in military equipment do not give rise to state-law tort claims if" the three elements of the government contractor defense are satisfied. The Court offered two rationales for the defense. First, separation of powers suggests that the judiciary should be hesitant to interfere with complex military decision-making made by the branches constitutionally delegated with the war powers. Second, if government contractors are required to take on a higher risk of liability, they will pass those costs on to the government; meaning that the supply of contractors, as well as research and development in military equipment, will decrease.

After the Fourth Circuit reviewed both of these rationales, it held that the government contractor defense may apply in failure to warn cases for two reasons. First, the Eastern District of Virginia was an "outlier" in failing to recognize the government contractor defense in failure to warn cases. The Second, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits have all applied the defense to failure to warn cases. Second, the rationales articulated by the Supreme Court for applying the defense in design defect cases apply with equal force to failure to warn cases. The judiciary should be hesitant to interfere with the complex warning and labeling requirements particular to military procurement contracts and specifications. Furthermore, the effect on government contractors is the same regardless of whether they are forced to take on a higher risk of liability for design defect or failure to warn claims.

To read the full opinion, click here.

Panel: Judges Traxler, Diaz, and Thacker

Argument Date: 09/22/2016

Date of Issued Opinion: 11/1/2016

Docket Number: No. 15-1918

Decided: Reversed and remanded by published opinion.

Case Alert Author: Annie McGuire, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Erik David Nadolink, WHEELER TRIGG O'DONNELL, LLP, Denver, Colorado, for Appellants. William Harty, PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for Appellee. ON BRIEF: Anthony B. Taddeo, Jr., David M. Sturm, Matthew D. Joss, TADDEOSTURM PLC, Richmond, Virginia, for Appellants. Robert R. Hatten, Hugh B. McCormick, III, PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for Appellee.

Author of Opinion: Judge Thacker

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/17/2016 08:35 AM     4th Circuit     Comments (0)  

November 10, 2016
  Dingle v. Stevenson -- Fourth Circuit
Roper v. Simmons Does Not Retroactively Invalidate a Guilty Plea

Areas of Law: Criminal Law, Habeas Corpus

Issue Presented: Whether Roper v. Simmons, the United States Supreme Court's decision that invalidated the death penalty for juvenile offenders, may be applied retroactively to invalidate a defendant's guilty plea, where the dependent pled guilty to avoid the death penalty.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that Roper, a substantive rule, did not apply retroactively to invalidate Dingle's guilty plea for three reasons. First, Roper applies only to sentences of capital punishment, while Dingle received a life sentence with the possibility of parole. Second, the Supreme Court has not suggested that a substantive rule stretches beyond the proscribed sentence to reopen guilty pleas with a different sentence. Third, Roper does not undermine the voluntariness of Dingle's guilty plea. Therefore, the Fourth Circuit affirmed the district court's dismissal of Dingle's habeas corpus petition.

Extended Summary: In 1993, Ronald Donald Dingle ("Dingle"), a 17-year-old juvenile at the time of his offense, was charged by the state of South Carolina with murder and a number of other crimes. The state intended to seek the death penalty against Dingle. Dingle pled guilty to all the charges in exchange for life imprisonment with the possibility of parole.

In 2005, the Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), which held that imposing capital punishment on juvenile offenders violated the Eighth Amendment. In 2013, Dingle filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of South Carolina. Dingle argued that Roper articulated a substantive rule that applied retroactively to his case and, therefore, his guilty plea should be abrogated. The district court found that Roper did not apply to situations where a defendant pled guilty to a non-capital sentence to avoid the possibility of a capital sentence. The district court denied Dingle's petition in its entirety.

Dingle appealed to the Fourth Circuit. The Fourth Circuit granted a certificate of appealability on one issue: "whether Roper v. Simmons, 543 U.S. 551 (2005), may be applied retroactively to invalidate Dingle's guilty plea where, pre-Roper, he allegedly pled guilty to avoid the death penalty."

The Fourth Circuit acknowledged that Roper was a substantive rule. However, in Roper, the Supreme Court made clear that its holding should be construed to apply only to capital punishment. As Dingle did not receive the death penalty, the Fourth Circuit held that Roper did not apply to Dingle's case.

The Fourth Circuit observed that the death penalty operated only as part of the calculus in Dingle's plea negotiations. In the court's view, acknowledging that Roper might have altered the calculus was "a far cry from finding that its substantive rule applie[d]." Citing Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Fourth Circuit explained that the Supreme Court has not yet suggested that a substantive rule stretches beyond the proscribed sentence to reopen guilty pleas with a different sentence. Pleading guilty typically entails a deliberate choice to accept the risks and rewards of a deal, and that decision may "not be casually set aside on the basis of buyer's remorse."

The Fourth Circuit explained that this principle was applied in Brady v. United States, 397 U.S. 742 (1970), a case similar to Dingle's case. In Brady, a criminal defendant was death penalty eligible and pled guilty to avoid capital punishment. When a subsequent Supreme Court decision would have made the defendant ineligible for the death penalty, the defendant urged that he be permitted to withdraw his plea. The Supreme Court rejected this argument, reasoning that "[t]he fact that Brady did not anticipate United States v. Jackson does not impugn the truth or reliability of his plea."

The Fourth Circuit held that although Roper altered the calculus underlying Dingle's decision to accept a plea agreement, it did "not undermine the voluntariness of his plea." Therefore, the Fourth Circuit affirmed the district court's dismissal of Dingle's petition.

To read the full opinion, clickhere.

Panel: Judges Wilkinson, Motz, and Harris

Argument Date: 09/20/2016

Date of Issued Opinion: 10/25/2016

Docket Number: No. 15-6832

Decided: Affirmed by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant. Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/10/2016 04:37 PM     4th Circuit     Comments (0)  

  Carlson v. Dyncorp Int'l LLC -- Fourth Circuit
Whistleblower Friendly: Fourth Circuit Introduces "Objectively Reasonable Belief" Standard

Areas of Law: Whistleblower Law, Civil Procedure

Issue Presented: Whether a court should apply an "objectively reasonable belief" standard in determining if an employee made efforts to stop a False Claims Act violation under the whistleblower provision of that statute.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court should have applied an "objectively reasonable belief" standard, instead of a "distinct possibility" standard, in determining whether the plaintiff engaged in a protected activity by making efforts to stop an FCA violation. Nevertheless, the Fourth Circuit affirmed the district court's dismissal of the plaintiff's claim. The Fourth Circuit noted that the plaintiff's belief that his employer (the defendant) was violating the FCA was not objectively reasonable, because the defendant's under-billing of the government was not an FCA violation.

Extended Summary: The False Claims Act (FCA)'s whistleblower provision, 31 U.S.C 3730(h)(1), protects a government contractor's employee from the contractor's retaliatory conduct as a result of "lawful acts done by the employee . . . in furtherance of an action under this section" (the first prong) or "other efforts to stop [one] or more violations of this subchapter" (the second prong). In other words, the two kinds of protected activity are: 1) activity that supports an FCA action against the employer alleging a fraud on the government, and (2) activity that is part of an effort to stop an FCA violation. To establish a prima facie case under this provision (and thus survive a motion to dismiss), the employee must plausibly allege that he engaged in one of these two kinds of protected activity.

Carlson, a Director of Stabilization and Governance at government contractor DynCorp International, LLC (DynCorp), raised concerns with his supervisors about lower-than - average indirect costs that DynCorp included in its bid for a government contract. Carlson also informed his supervisors about DynCorp's other irregular accounting and billing practices. The supervisors did not address his concerns. Carlson was soon fired by DynCorp and was told his termination was due to a reorganization.

In the district court, Carlson filed a lawsuit against DynCorp under the FCA whistleblower provision for retaliatory termination. Carlson claimed that his questioning DynCorp's accounting and billing practices constituted an effort to stop an FCA violation, the second prong of the whistleblower provision. He also claimed that he was terminated by DynCorp in retaliation for engaging in his protected activity. The U.S. District Court for the Eastern District of Virginia dismissed Carlson's complaint without prejudice under Rule 12(b)(6) for failure to state a claim. Carlson re-filed, and the district court dismissed his amended complaint with prejudice for the same reason. In reaching its decision, the district court applied a "distinct possibility" standard established by Eberhardt v. Integrated Design & Const., Inc. Under this standard, an employee engages in protected activity "when the conduct reasonably could lead to a viable FCA action." 167 F.3d 861 (4th Cir. 1999).

The Fourth Circuit held that the "distinct possibility" standard did not apply to the second prong for three reasons. First, because the second prong specifically states "other efforts," applying the "distinct possibility" standard renders the second prong "nonsensical." Second, the "distinct possibility" standard no longer existed once Congress excised the relevant language from the provision in 2009. Third, applying the "distinct possibility" standard to both the old and the new language would render the latter a nullity, in contradiction to a canon that courts engaged in statutory interpretation must "give each word some operative effect."

The Fourth Circuit then "assume[d], without deciding," that Carlson's proposed "objectively reasonable belief" standard applied. Under this standard, efforts to stop an FCA violation constitute protected activity where "those efforts are motivated by an objectively reasonable belief that the employer is violating, or soon will violate, the FCA." In adopting the "objectively reasonable belief standard," the court noted that the 6th, 7th, 8th, and 9th Circuits have already adopted this standard. Second, the "objectively reasonable belief" standard aligns with the Fourth Circuit's treatment of similarly structured whistleblower provisions in Title VII, the Age Discrimination in Employment Act, and the Americans with Disability Act.

Applying the "objectively reasonable belief" standard, the Fourth Circuit held that Carlson failed to show that his belief that DynCorp was violating the FCA was objectively reasonable. The court found that all Carlson accused DynCorp of doing was under-billing the government on existing contracts. Noting that the intent of the FCA was to "reach all types of fraud . . . that might result in financial loss to the Government," the court held that under-billing would not cause such loss and was, thus, not an FCA violation.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Circuit Judges Motz and Thacker

Argument Date: 03/01/2016

Date of Issued Opinion: 08/22/2016

Docket Number: No. 14-1281

Decided: Affirmed by unpublished opinion.

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: Jacob Madison Small, J. MADISON PLC, McLean, Virginia, for Appellant. Edward T. Ellis, LITTLER MENDELSON, P.C., Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Andrew B. Rogers, LITTLER MENDELSON, P.C., McLean, Virginia, for Appellee.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/10/2016 01:04 PM     4th Circuit     Comments (0)  

November 8, 2016
  Al Shimari, et al. v. CACI Premier Technology, Inc., et al. -- Fourth Circuit
Fourth Time's the Charm? Fourth Circuit Decides Applicability of Political Question Doctrine to Abuse at Abu Ghraib Prison

Areas of Law: Constitutional Law

Issue Presented: Whether the district court erred in dismissing appellant's complaint as non-justiciable under the political question doctrine, where that complaint alleged abuses suffered at the hands of a government contractor at the Abu Ghraib prison in Iraq.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit vacated the dismissal of the appellant's complaint by the United States District Court for the Eastern District of Virginia, in the fourth appearance of this case before the court. The district court had held that the complaint presented a non-justiciable political question because a judicial decision on the complaint (by former detainees of the Abu Ghraib prison in Iraq against a military contractor) would question sensitive military judgments. However, the Fourth Circuit found the district court erred by conducting an incomplete analysis into whether the military had direct control over the actions of the defendant and therefore outlined new rules as to when government contractors are shielded from judicial review under the political question doctrine. The case was remanded for the district court to reexamine its subject matter jurisdiction over the case based on the new rules.

Extended Summary: In 2008, four Iraqi nationals filed suit against CACI Premier Technology, Inc. (CACI), alleging repeated and systemic abuse by the defendant's employees, while they were detained by the United States at the Abu Ghraib prison in Iraq in 2003 and 2004. CACI is a government contractor that performed interrogation services for the military at Abu Ghraib during the period of the appellants' detention. The appellants were ultimately released from Abu Ghraib without charges, but allege in the complaint that CACI employees committed acts involving torture, war crimes, and cruel, inhuman, or degrading treatment during the period of their incarceration and all in violation of the Alien Tort Statute. The appellants also filed common law tort claims, including assault and battery, sexual assault and battery, and intentional infliction of emotional distress. The appellants assert that the alleged acts of abuse occurred because there was a command vacuum at the prison, in that military leaders failed to exercise control over the actions of the CACI interrogators and low-level military officers.

The instant appeal is the fourth time this case has been before the Fourth Circuit. The last time the case was before the court, the Fourth Circuit remanded the case back to the district court to conduct jurisdictional discovery on the issue of whether the political question doctrine barred the plaintiffs' claims. In that decision, the court declined to decide the political question issue because of a limited appellate record, but instructed the district court to undertake a factual inquiry as to the extent of the military's actual control over CACI interrogators and then to decide whether the claims implicated the political question doctrine.

On remand, the district court dismissed the complaint finding the claim presented a non-justiciable political question; more specifically, the district court found the military exercised direct control over interrogations at the prison, which would require an improper inquiry into sensitive military judgments under the political question doctrine. The district court also held that it lacked any judicially manageable standards to resolve the claims.

The appellants filed this appeal to the Fourth Circuit, asserting that the district court erred in finding the military had direct control over interrogations and in failing to evaluate whether the military had actually exercised such control over the actions of CACI interrogators. The appellants also argued that their claims would not require an evaluation of sensitive military judgments because the claims challenged the legality, not the reasonableness, of CACI's conduct. Finally, the appellants argued that the district court did indeed have manageable standards to resolve the claims.

The court first noted that a claim is not shielded from judicial review merely because it arises from action taken under orders of the military. In re KBR, Inc., Burn Pit Litigation, 744 F.3d 326, 333 (4th Cir. 2014). In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court established a six-factor test to aid courts in determining whether a case presents a political question barred from judicial review. Then, in Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d 402 (4th Cir. 2011), the Fourth Circuit distilled the six Baker factors into two factors to determine whether a court has subject-matter jurisdiction in a civil liability suit against a government contractor: (1) whether the government contractor was under the direct control of the military, and (2) whether a decision on the merits of the claim would require the court to question actual and sensitive military judgments. An affirmative response to either factor will generally trigger the political question doctrine.

Discussing the first factor from Taylor, the court in the instant case found that the district court failed to properly examine the level of direct control the military had over the actions of CACI. The district court found evidence that the military had formal control over the actions of CACI interrogators in the form of a command structure, outlined procedures, and various memoranda establishing the rules of interrogation. That court concluded such evidence was enough to satisfy the first Taylor prong, and dismissed the complaint without inquiring into the level of actual control. The Fourth Circuit, however, rejected the district court's conclusion and found there was evidence that the district court had ignored of the military's failure to exercise actual control. For example, the district court failed to evaluate a government report concluding that the higher ranking officers at the prison failed to supervise their subordinates.

The court laid out two new rules to aid the district court on remand in deciding this first Taylor factor. First, the Fourth Circuit instructed that when a contractor engages in a lawful action under the actual control of the military, the contractor's action will be considered a de facto military decision shielded from judicial review under the political question doctrine. Second the Fourth Circuit instructed that when a contractor engages in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine because the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity. In other words, the actions of a contractor can only be shielded from judicial review under the first Taylor factor if they both were committed under actual control of the military and were lawful.

The court then turned to the second Taylor factor, which considers whether judicial review will require the district court to question military judgments. The court concluded that the district court analysis was incomplete because it failed to draw the distinction between lawful and unlawful conduct as related to the military. The court stated that unlawful actions cannot be based on military expertise and judgment, so claims alleging unlawful conduct applicable to the CACI employees will fall outside the political question doctrine. As a result, the court ordered that the district court must, on remand, separate justiciable claims based on unlawful actions from those that actually question military decisions and are therefore shielded from judicial review. The court also noted that statutory allegations against a government contractor, such as the one in this case involving the Alien Tort Statute, are generally justiciable because adjudication of those claims only requires a court to state the law and apply the facts to it, a traditional judicial function that does not require a judgment on military decisions. According to the court, some of the alleged conduct will undoubtedly be subject to judicial review as clearly unlawful, such as sexual assaults and beatings, while others may be shielded, but the court declined to make a comprehensive determination on those decisions.

The court also ruled that the district court does indeed have manageable standards to resolve the issues herein on remand. The court stated that although the substantive international law at issue in the complaint may be unfamiliar and complicated, it is the function of the judiciary to decide such issues via interpretation of statutory terms and established international norms, as other federal courts have done before. The court ruled that the district court cannot abdicate the normal judicial role just because of the complexity of the issues presented.

Panel: Judges Keenan, Floyd, and Thacker

Argument Date: 05/12/2016

Date of Issued Opinion: 10/21/2016

Docket Number: No. 15-1831

Decided: Vacated and remanded by published opinion

Case Alert Author: Patrick J.L. Dillon, University of Maryland Carey School of Law

Counsel: ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, for Appellants. John Frederick O'Connor, Jr., STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellee. ON BRIEF: Katherine Gallagher, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York; Robert P. LoBue, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York; Shereef Hadi Akeel, AKEEL & VALENTINE, P.C., Troy, Michigan; Jeena Shah, CONSTITUTIONAL RIGHTS & INTERNATIONAL HUMAN RIGHTS CLINIC, Newark, New Jersey, for Appellants. Stephen I. Vladeck, Washington, D.C.; Charles S. Barquist, Los Angeles, California, Betre M. Gizaw, MORRISON & FOERSTER LLP, Washington, D.C., for Amici Professors of Constitutional Law and Federal Courts. Eric L. Lewis, A. Katherine Toomey, James P. Davenport, Waleed Nassar, LEWIS BAACH PLLC, Washington, D.C.; Melissa Hooper, HUMAN RIGHTS FIRST, New York, New York, for Amici Retired Military Officers. Dror Ladin, Hina Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union Foundation, Amnesty International, and Human Rights Watch. George M. Clarke, III, BAKER & MCKENZIE LLP, Washington, D.C.; Alberto Mora, Carr Center For Human Rights Policy, HARVARD KENNEDY SCHOOL, Cambridge, Massachusetts, for Amicus Alberto Mora. William J. Aceves, CALIFORNIA WESTERN SCHOOL OF LAW, San Diego, California; Deena R. Hurwitz, International Human Rights Law Clinic, AMERICAN UNIVERSITY, Washington, D.C., for Amicus Juan E. Mendez. L. Kathleen Roberts, Nushin Sarkarati, THE CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California; Michael E. Tigar, Oriental, North Carolina; Ali A. Beydoun, UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Washington, D.C., for Amici Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe Abdi Yousuf. Lawrence S. Ebner, Lisa N. Himes, Tami Lyn Azorsky, Jessica C. Abrahams, DENTONS US LLP, Washington, D.C., for Amici Professional Services Council-The Voice of the Government Services Industry, and Coalition for Government Procurement. Raymond B. Biagini, Daniel L. Russell Jr., Herbert L. Fenster, COVINGTON & BURLING LLP, Washington, D.C., for Amicus KBR, Incorporated.

Author of Opinion: Judge Keenan

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 02:48 PM     4th Circuit     Comments (0)  

  Simms v. United States - Fourth Circuit
Collateral Source Rule Permits Plaintiff's Recovery Despite Medicaid Payments

Areas of Law: Medical Malpractice, Federal Tort Claims Act

Issues Presented: 1) Whether the district court erred in calculating damages awarded to plaintiff for her son's past and future medical expenses; 2) whether the district court erred in measuring plaintiff's damages using the amount medical providers billed, rather than the amount the Medicaid program paid to providers; and 3) whether the district court erred in failing to hold a post-verdict prejudgment collateral source hearing.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court 1) properly awarded plaintiff damages attributable to her child's past medical expenses pursuant to West Virginia's "collateral source rule"; 2) correctly measured plaintiff's damages using the amount medical providers billed for her son's care, rather than the amount the West Virginia Medicaid program paid to providers; and 3) erred in failing to hold a post-verdict prejudgment collateral source hearing. However, the court vacated the district court's judgment with respect to damages awarded for past and future medical expenses and remanded the case to the district court for failure to hold a collateral source hearing.

Extended Summary: Misty Simms received prenatal care at a federally-supported health care center in West Virginia. In February 2008, Simms' physician detected potential fetal abnormalities during a routine ultrasound while Simms was eighteen weeks pregnant. The physician did not inform Simms of the concerns. Three months later, after a series of follow-up appointments, Simms learned that her fetus' brain was extremely underdeveloped, her child would never walk or talk, and would be severely mentally disabled. By then, Simms was in her third trimester and West Virginia law prohibited her from terminating her pregnancy. Simms gave birth to a son who was severely disabled and in an ongoing "vegetative state." He is now eight-years-old and has required twenty-four-hour care and monitoring throughout his life. To date, his care has cost over two million dollars in medical expenses. In 2011, Ms. Simms brought a wrongful birth action against the federal government under the Federal Tort Claims Act (FTCA). The district court found the government liable and awarded her over twelve million dollars in damages, including past billed medical expenses and future medical expenses for her son's care over a twenty-one-year life expectancy. The government appealed, challenging only the court's award of damages for past and future medical expenses.

First, the government argued that Simms did not have a right to recover past medical expenses because Medicaid paid those expenses. Under West Virginia law, a parent who brings a wrongful birth suit is entitled to recover the costs of raising a child with birth defects. The Fourth Circuit determined that such damages include medical costs attributable to the birth defects before and after the child reaches age 18. Further, parents are entitled to such recovery because of their legal obligation to support their child. The court found that Simms was entitled to recovery because she had a legal obligation to support her child and the health care center's negligence increased the weight of that obligation. Moreover, citing Kenney v. Liston, 760 S.E.2d 434, 440 (W. Va. 2014), the court reasoned that the collateral source rule protects payments made to or on behalf of an injured party from a third party such as insurance including Medicaid. Thus, the court held, the collateral source rule protected Simms' Medicaid payments and prohibited the government from offsetting Simms' damages based on Medicaid payment of her son's medical expenses.

Second, the government argued that even if the collateral source rule applied, the district court erred by calculating Simms' damages based on the amount her son's medical providers billed, rather than the amount the Medicaid program actually paid. The Fourth Circuit rejected this argument as well, noting that under West Virginia law, the proper measure of damages for medical expenses is the reasonable value of necessary medical services regardless of the amount actually paid. Citing Kenney, the court determined that benefits conferred by public payers, such as the West Virginia Medicaid program, do not alter the collateral source rule analysis. Thus, the court concluded, proof of the original medical bill is prima facie evidence that the expense was necessary and reasonable regardless of the amount paid and held that the district court did not err in calculating Simms' damages.

Finally, the government argued that the district court erred in refusing to reduce the damages award pursuant to West Virginia's Medical Professional Liability Act. That statute entitles a defendant to a post-verdict prejudgment hearing regarding a plaintiff's payments received from collateral sources. The court noted that the district court did not hold a collateral source hearing pursuant to the Act before it entered judgment. The court reasoned that a hearing was necessary for the district court to determine whether the statute entitled the government to a damages reduction and whether the Medicaid program may recover from Simms by subrogation, lien or reimbursement. Accordingly, the court vacated the district court's judgment with respect to damages awarded for past and future medical expenses and remanded the case to the district court to hold the requisite collateral source hearing.

To read the full opinion, click here.

Panel: Wynn and Harris, Circuit Judges, and Biggs, District Judge

Argument Date: 01/27/2016

Date of Issued Opinion: 10/07/2016

Docket Number: No. 15-2161

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Yvette Pappoe, Univ. of Md. Carey School of Law

Counsel: Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Mark Davis Moreland, MORELAND & MORELAND, Lewisburg, West Virginia, for Appellees. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Rachel Hanna, LAW OFFICE OF RACHEL HANNA, Lewisburg, West Virginia, for Appellees.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

Edited: 11/10/2016 at 12:11 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 11:57 AM     4th Circuit     Comments (0)  

  Holloman v. Markowski et al. -- Fourth Circuit
Pro Se Litigant Cannot Overcome Heavy Burden of Proof After Officer Fatally Shoots Her Son

Areas of Law: Fourth Amendment

Issues Presented: Whether a litigant who fails to prove widespread or flagrant violations of one's constitutional rights meets the Monell requirements to establish municipal liability under 42 U.S.C. § 1983. Whether a litigant overcome qualified immunity and establish officer liability for use of unreasonable and excessive force without precedent that the force used was unreasonable and excessive.

Brief Summary: In an unpublished per curiam decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Plaintiff-Appellant's municipal liability and excessive force claims in this 42 U.S.C. § 1983 action. Plaintiff-Appellant Marcella Holloman brought this case against Baltimore City and two individual police officers in the United States District Court for the District Court of Maryland. The District Court granted the City's motion to dismiss and the officers' motion for summary judgment. The Fourth Circuit affirmed the District Court's decision, relying on the United States Supreme Court decision in Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658 (1978). Monell established that a Plaintiff "must point to a persistent and widespread practice of municipal officials" where the duration and frequency of such practice demonstrate that the policymakers (1) "had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference." The Fourth Circuit found that Holloman's claims were too speculative to plausibly claim municipal liability. Additionally, using the Fourth Amendment's "objective reasonableness standard," the Fourth Circuit found the officers' use of force was not excessive. The Fourth Circuit affirmed the District Court's decision.

Extended Summary: Marcella Holloman was hosting a children's birthday party at her home when her son Maurice Donald Johnson, who suffered from bipolar disorder, came home and began breaking pieces of furniture in his bedroom. Hearing the sound of breaking glass, Holloman went up to Johnson's room and told him that she would take him to the hospital for psychiatric treatment after the party. Johnson replied that she would have to call the police to take him because he would not go voluntarily. Holloman and her daughter then removed the children from the home while Johnson continued to destroy personal property around the home. Johnson threw his mattress onto the front lawn and began tearing it apart. Holloman locked him out of the home and called for the police. Johnson kicked the front door, and ripped the back screen door off its hinges. Officers Paul Markowski and Gregory Bragg arrived at Holloman's home in response to the 911 call. Holloman notified the officers of Johnson's psychiatric issues, and explained that he would not stop his destructive behavior. She suggested that the officers use a Taser to bring her son under control, but asked them to not shoot Johnson.

The officers went to the back door and asked Johnson to calm down. Johnson responded by lunging at Officer Markowski, pinning him on the ground with his knees, and fighting him. Officer Bragg's efforts to pull Johnson off of Officer Markowski were unsuccessful. Officer Bragg then fired at least two gunshots, wounding and later killing Johnson.

Filing pro se, Holloman brought this 42 U.S.C. § 1983 action before the United States District Court for the District Court of Maryland against Baltimore City (Mayor Stephanie Rawlings-Blake), the Baltimore City Police Commissioner, Baltimore City Council and Officers Markowski and Bragg, individually. The District Court granted both the City's motion to dismiss and the Officers' motions for summary judgment. Holloman appealed to the Fourth Circuit. The two claims before the court were: the municipal liability claim and the excessive force claim.

The Fourth Circuit first addressed the municipal liability claim, relying on the Supreme Court's decision in Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658 (1978). There, the Supreme Court "held that municipalities face liability under § 1983 if a municipal policy or custom itself causes a deprivation of constitutional rights." Holloman claimed that the City failed to supervise and train its employees on how to interact with the mentally ill and that it had a general policy, pattern, and/or practice of failing to discipline its officers' conduct.

Monell established two requirements necessary to prevail on a §1983 claim against municipalities. First, a plaintiff needs to "point to a persistent and widespread practice of municipal officials" where the duration and frequency of such practice demonstrated that the policymakers (1) "had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference." The Fourth Circuit continued that "sporadic or isolated violations of rights" were not sufficient to give "rise to Monell liability." Only evidence of "widespread or flagrant violations" will create such culpability.

Holloman presented four specific instances of on-duty officers in Baltimore City killing citizens. She also presented a Baltimore Sun newspaper article that reported City officers having shot ten individuals, eight of them fatally, and that some of those individuals suffered from a mental illness. The Fourth Circuit held that Holloman failed to present any facts to indicate that the officer shootings she presented involved constitutional violations or that the City failed to properly train or discipline its officers. In the court's view this deficiency meant that Holloman failed to meet the Monell requirements. Finding Holloman's claim too speculative to impose municipal liability, the Fourth Circuit affirmed the District Court's decision, and granted the City's motion to dismiss.

Next, the Fourth Circuit addressed Holloman's excessive force claim against Officers Markowski and Bragg. Using the Fourth Amendment's "objective reasonableness standard" the court analyzed the excessive force claim "from the perspective of a reasonable officer on the scene." The Fourth Circuit noted that government officials sued under §1983 are protected under "qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." A plaintiff may overcome an officer's qualified immunity only if she can demonstrate that (1) "with the facts viewed in the light most favorable to the Plaintiff, the officer's conduct violated a federal right, and" (2) that the "right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional." The Fourth Circuit reasoned that there was no precedent establishing that an officer's use of lethal force is objectively unreasonable and thus, constitutionally excessive when such force is used on an unarmed, yet physically resistant suspect, after the suspect has destroyed property, attacked an officer, and showed no signs of stopping such behavior. The Fourth Circuit concluded that the officers did not use constitutionally excessive force and affirmed the District Court's decision, granting the officers motion for summary judgment.

To read the full opinion, click here.

Panel: Judge Wilkinson, Motz, and Harris

Argument Date: 09/20/2016

Date of Issued Opinion: 10/07/2016

Docket Number: No. 15-1878

Decided: Affirmed by unpublished per curiam opinion.

Case Alert Author: Vanessa Destime, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Stephen Louis Braga, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Frederic Nelson Smalkin, Jr., William Rowe Phelan, Jr., BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Hardev Chhokar, Brian Remondino, Josh Robbins, Andrew Selman, Third Year Law Students, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. George Nilson, City Solicitor, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

Author of Opinion: Per curiam

Case Alert Supervisor: Professor Renée Hutchins

Edited: 11/08/2016 at 12:44 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 11:26 AM     4th Circuit     Comments (0)  

  McCray v. Fed. Home Loan Mortg. Corp., et al. -- Fourth Circuit
Foreclosure Attorneys Can Be Considered Debt Collectors under the FDCPA

Areas of Law: Fair Debt Collection Practices Act

Issue Presented: Whether a law firm and its members are "debt collectors" as defined under the Fair Debt Collection Practices Act, when they, on behalf of creditors, pursue foreclosure against a debtor.

Brief Summary: The United States Court of Appeals for the Fourth Circuit reversed the district court's dismissal of the plaintiff's claim under the Fair Debt Collection Practices Act ("FDCPA") against a law firm and its members, because the district court erroneously found they were not "debt collectors" as defined under the FDCPA. The Fourth Circuit held that, as mandated by Powell, to constitute a "debt collector," a person must use a prohibited practice "in connection with the collection of any debt" or in an "attempt to collect any debt." The Fourth Circuit concluded that the defendants' actions surrounding the foreclosure proceeding, including sending a notice of intent to foreclose to the plaintiff, were "attempts to collect [a] debt" and, thus, the defendants were "debt collectors."

Extended Summary: The FDCPA, 15 U.S.C. § 1692a(6), defines the term "debt collector" to include "any person . . . who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." The definition, however, excludes such a person if his debt collection is "incidental to a bona fide fiduciary obligation." 15 U.S.C. § 1692a(6)(F)(i).

In 2005, Renee McCray ("McCray") took a loan from American Home Mortgage Corporation ("American Home") to refinance her house, giving American Home a 30-year note and a deed of trust on her house to secure repayment of the note. American Home subsequently sold the loan to the Federal Home Loan Mortgage Corporation ("Freddie Mac"), and Wells Fargo was retained to service the loan. In 2011, McCray, disputing a monthly billing statement, sent Wells Fargo a written request for information about the fees and costs that it was charging but received no response. After April 2012, McCray stopped making payments and went into default.

Wells Fargo retained Samuel I. White, P.C. ("the White Firm") to pursue foreclosure. In October 2012, the White Firm sent McCray a notice of intent to foreclose stating the nature of her default and the amount necessary to cure the default. The notice also stated that if McCray did not "bring the loan current . . . such as [by] repayment . . . , a foreclosure action may be filed in court." The notice concluded that the communication was "an attempt to collect a debt." Thereafter, several members of the White Firm were substituted as trustees ("the Substitute Trustees") on the deed of trust and filed for foreclosure in the Circuit Court for Baltimore City in February 2013.

Shortly after the Substitute Trustees commenced the foreclosure proceeding, McCray filed a lawsuit against Freddie Mac, Wells Fargo, the White Firm, and the Substitute Trustees in the United States District Court for the District of Maryland. McCray challenged the amount of her debt and the manner in which the defendants administered the loan. In particular, McCray alleged that the defendants failed to provide McCray with notices and requested information in violation of the FDCPA, the Truth in Lending Act ("TILA"), and the Real Estate Settlement Procedures Act ("RESPA").

The district court dismissed the FDCPA and TILA claims, and granted summary judgment to the defendants for the RESPA claim. With respect to the FDCPA claim against the White Firm and the Substitute Trustees, the only contested issue was whether these defendants were "debt collectors" as defined under the FDCPA. The district court found that the notice of intent to foreclose did not contain an "express demand for payment or specific information about her debt," and thus, was not an attempt to collect the debt. Accordingly, the district court concluded these defendants were not "debt collectors."

The Fourth Circuit affirmed the district court's dismissal of the TILA claim. However, the Fourth Circuit reversed the district court's dismissal of McCray's FDCPA claim against the White Firm and the Substitute Trustees. Citing Powell v. Palisades Acquisitions XVI, LLC, 782 F.3d 119 (4th Cir. 2014), the Fourth Circuit held that to be a "debt collector" under the FDCPA, a person needs only to have used a prohibited practice "in connection with the collection of any debt" or in an "attempt to collect any debt."

The Fourth Circuit found that the White Firm and the Substitute Trustees' activities were taken in connection with the collection of a debt or in an attempt to collect a debt for three reasons. First, citing Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373 (4th Cir. 2006), the Fourth Circuit explained that the plaintiff's "'debt' remained a 'debt' even after foreclosure proceedings commenced" and that the "[defendants'] actions surrounding the foreclosure proceeding were attempts to collect that debt." Second, the notice of intent to foreclose stated that these defendants were pursuing foreclosure because McCray had "missed one or more payments." Further, the notice stated that if McCray did not "bring the loan current . . . such as [by] repayment . . . , a foreclosure action may be filed in court." The notice also provided McCray with the nature of the default (such as the name of the lender and the date of default) and the amount necessary to cure the default. Third, the Fourth Circuit held that the defendants' actions in foreclosing on the property did not fall within the exception under 15 U.S.C. § 1692a(6)(F)(i) because the defendants' actions were not "incidental to their fiduciary obligation." Citing Wilson, the court held that foreclosure was "central" to the trustee's fiduciary obligation under the deed of trust. These factors led the court to conclude the defendants were "attempt[ing] to collect a debt."

Therefore, the Fourth Circuit concluded that the White Firm and the Substitute Trustees were "debt collectors" under the FDCPA. The Fourth Circuit remanded the case to the district court to determine whether the White Firm and Substitute Trustees, as debt collectors, violated the FDCPA.

To read the full opinion, click here.

Panel: Circuit Judges Niemeyer and Wynn, and District Judge Johnston

Argument Date: 05/10/2016

Date of Issued Opinion: 10/07/2016

Docket Number: No. 15-1444

Decided: Affirmed in part; reversed in part, and remanded by published opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: Kenzie Marie Rakes, MEYNARDIE & NANNEY, PLLC, Raleigh, North Carolina, for Appellant. Robert Harvey Hillman, SAMUEL I. WHITE, PC, Rockville, Maryland; Michael S. Barranco, TREANOR POPE & HUGHES, P.A., Towson, Maryland, for Appellees.

Author of Opinion: Circuit Judge Niemeyer

Dissenting Opinion: District Judge Johnston on Part IV

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 10:05 AM     4th Circuit     Comments (0)  

  United States v. Barnett/United States v. Williams -- Fourth Circuit
Gang's "First Lady" Not Guilty by Association

Areas of Law: Criminal Law, Evidence, Criminal Procedure

Issues Presented: Whether the government provided sufficient evidence to support the defendant's conviction for conspiring to commit murder in aid of racketeering activity. Whether the District Court improperly admitted lay witness testimony related to the meaning of slang words. Whether the District Court erroneously instructed the jury regarding the "pattern of racketeering activity" required for conspiracy to violate RICO. Whether the District Court improperly sentenced the defendant as a career offender in light of the Supreme Court's holding in Johnson v. United States,135 S. Ct. 2551 (2015). Whether the government provided insufficient evidence to prove that a gang leader's girlfriend conspired to violate RICO.

Brief Summary: In an unpublished opinion, the United States Court of Appeals for the Fourth Circuit found no reversible error pertaining to Alan Barnett and affirmed his convictions and sentence. However, the Fourth Circuit concluded the government failed to provide sufficient evidence in Samantha Williams's case and reversed her conviction for conspiring to violate the Racketeer Influenced and Corrupt Organization Act ("RICO").

Extended Summary: This case arose out of a 134-count indictment charging twenty-eight individuals involved with the United Blood Nation gang ("UBN"). Formed at Riker's Island Prison in New York City, UBN operates through a hierarchical structure and consists of several sub-groups along the East Coast. Alan "Big Al" Barnett and Samantha "Lady Sam" Williams were both affiliated with a UBN sub-group called Gangster Killer Bloods, commonly known as "G-Shine." Barnett was the second highest-ranking member of the G-Shine division in North Carolina. Williams was the girlfriend of G-Shine's leader, and hence the organization's "first lady," serving as the "mouthpiece" for the leader during his incarceration.

In a joint trial, the jury convicted both Barnett and Williams of conspiring to violate the Racketeer Influenced and Corrupt Organization Act ("RICO"). The jury also convicted Barnett of conspiracy to commit murder in aid of racketeering activity, two counts of conspiring to commit Hobbs Act robbery, conspiracy to distribute and possession with intent to distribute cocaine base, illegal use of a communication device, and distribution of cocaine. The United States District Court for the Western District of North Carolina sentenced Barnett to 360 months in prison, and sentenced Williams to 72 months in prison.

On appeal, Williams challenged the sufficiency of the evidence supporting her RICO conspiracy conviction. To prove a RICO conspiracy, the government must show (1) that an enterprise affecting interstate commerce existed; (2) that the defendant knowingly and intentionally agreed with another person to participate in the enterprise's affairs; and (3) that the defendant knowingly and willfully agreed that she or another member would commit at least two racketeering acts. Rejecting the government's argument that Williams's role as "first lady" proved the second element, the Fourth Circuit held that it would not broaden RICO's scope to presume that any individual affiliated with a gang knows about and agrees to the commission of racketeering acts. The Fourth Circuit reversed Williams's conviction for RICO conspiracy for insufficiency of evidence.

Additionally, Barnett raised various challenges to his sentence and convictions for RICO conspiracy and conspiracy to commit murder in aid of racketeering activity, all of which the Fourth Circuit rejected. Regarding his convictions, Barnett argued that (1) there was insufficient evidence to prove that Barnett conspired to murder another inmate for the purpose of maintaining or increasing his position in UBN; (2) the District Court erroneously admitted lay witness testimony related to the meaning of slang words; and (3) the District Court erroneously instructed the jury on the standard required for RICO conspiracy. The Fourth Circuit rejected each of Barnett's contentions.

Regarding his sentence, Barnett argued that the District Court improperly sentenced him as a career offender. Citing the Supreme Court's recent invalidation of the residual clause in the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), Barnett argued that the District Court improperly designated him as a career offender under the United States Sentencing Guidelines. The Fourth Circuit held that any error was harmless, emphasizing that the District Court indicated that it would have issued a 360-month sentence without consideration of the sentencing guidelines. The Fourth Circuit therefore upheld Barnett's sentence and convictions.

To read the full opinion, click here.

Panel: Judges Agee and Wynn, and Judge Thomas D. Schroeder of the United States District Court for the Middle District of North Carolina, sitting by designation

Argument Date: 03/24/2016

Date of Issued Opinion: 10/12/2016

Docket Numbers: 14-4866 and 14-4885

Decided: Affirmed in part and reversed in part by unpublished opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law
Counsel: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina; Jeffrey William Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant Williams. Jill Westmoreland Rose, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/08/2016 09:47 AM     4th Circuit     Comments (0)  

November 7, 2016
  Tankersley v. Almand, et al. -- Fourth Circuit
Fourth Circuit Upholds Maryland Court of Appeals Suspension of Attorney for Refusal to Disclose Social Security Number

Areas of Law: Privacy Act, Attorney Discipline

Issue Presented: Whether the Maryland Court of Appeals' suspension of an attorney's law license for refusal to provide his social security number to the Client Protection Fund of the Bar of Maryland violates Section 7(a)(1) of the Privacy Act.

Brief Summary: The Maryland Court of Appeals suspended an attorney for refusing to submit his social security number to the Client Protection Fund. The attorney sued claiming the suspension was a violation of Section 7(a)(1) of the federal Privacy Act. The Maryland defendants claimed they had the power to compel the attorney to disclose his social security number under two federal acts, the Welfare Reform Act or the Tax Reform Act. The Fourth Circuit agreed. It held the Tax Reform Act gives states and their agents, including Maryland's Client Protection Fund, the power to collect social security numbers in order to administer taxes. As such, suspending the attorney for his refusal to submit his social security number was not a violation of Section 7(a)(1) of the Privacy act.

Extended Summary: The Maryland Court of Appeals is required by state statute, Md. Code Ann., Bus. Occ. & Prof. § 10-311, to set up a Client Protection Fund (the Fund). The Fund is used to "maintain the integrity of the legal profession" and "to reimburse losses caused by defalcations of lawyers." The Fund must provide to the Maryland Comptroller a list of all lawyers who have paid the annual fee to the Fund. This allows the Comptroller to determine if each lawyer has paid taxes. The Maryland Court of Appeals promulgated rules to comply and cited Section 405 of the federal Tax Reform Act in doing so. The Maryland General Assembly also enacted statutes to comply with the federal Welfare Reform Act. One of these, Md. Code Ann., Fam. Law § 10-119.3(e)(1), requires Maryland licensing authorities to collect applicant's social security numbers.

In accordance with the above laws and regulations, in 2009, then-Chief Judge Robert M. Bell of the Maryland Court of Appeals requested that all members of the Maryland Bar disclose their social security numbers to the Fund. About nine thousand attorneys did not comply and the Maryland General Assembly threatened the court with a large budget cut if it did not take action against the nine thousand. As a result, the Maryland Court of Appeals promulgated Maryland Rule 16-811.5(a)(1) (now rule 19-605(a)(1)), which requires Maryland attorneys to provide their social security numbers to the Fund or face suspension of their law licenses.

Michael Tankersley is a Virginia resident practicing law in the District of Columbia. He has maintained District of Columbia and Maryland bar memberships since 1986 and 1987, respectively. In 2013, the Fund asked Mr. Tankersley to provide his social security number. Mr. Tankersley declined citing identity theft concerns. Thereafter, the Maryland Court of Appeals suspended his law license. He had no prior disciplinary incidents.

Mr. Tankersley filed a lawsuit against James Almand (the Chair of the Fund), the other trustees of the Fund, and the judges and clerk of the Maryland Court of Appeals under Section 7(a)(1) of the Privacy Act. He claimed that Maryland Rule 16-811.5(a)(1) violates Section 7(a)(1) of the Privacy Act. Section 7(a)(1) of the Privacy Act provides that: "t shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number" except when required by other federal statute. Mr. Tankersley moved for summary judgment and the defendants cross-moved to dismiss or for summary judgment. The United States District Court for the District of Maryland dismissed Mr. Tankersley's complaint finding that the Welfare Reform Act and the Tax Reform Act supersede the Privacy Act. Mr. Tankersley appealed. The Fourth Circuit affirmed.

On appeal, the Fourth Circuit was tasked with answering the following questions: First, does either the Welfare Reform Act or the Tax Reform Act allow the Fund to compel Tankersley to disclose his social security number? Second, if neither act does so, does the Privacy Act create a Section 1983 private right of action? The second question would have been a question of first impression. However, the majority did not reach that question because it found the Tax Reform Act supersedes the Privacy Act.

The majority first found the Welfare Reform Act could not be used as the basis for compelling Tankersley's social security number. It explained that Section 666 of the Welfare Reform Act requires states to collect social security numbers from applicants for professional licenses and not those already licensed. Tankersley was a licensed attorney and not an applicant.

The majority next found the Tax Reform Act was expansive enough to empower the Fund to collect social security numbers. Section 405 of the Tax Reform Act allows any state, political subdivision or agency responsible for tax administration to collect social security numbers if it is done: 1) for administration of a tax; and 2) from individuals who appear to be affected by the state's tax laws. Mr. Tankersley argued that Section 405 of the Tax Reform Act did not allow the Fund to collect his social security number for three reasons: 1) the statutory requirement that the Fund provide the social security numbers to the Maryland Comptroller does not constitute the administration of a tax; 2) the Fund is not an entity responsible for administrating taxes; and 3) he did not appear to be affected by Maryland tax laws. The majority disagreed.

First, the Fund was collecting the social security numbers for the administration of a tax. That the Fund passed the numbers to the Comptroller was enough. Because Congress had not defined "administration of a tax," the court used the ordinary meaning of the words - "manag[ing] the operation" of something or putting something "into effect." The Court further stated that this expansive plain meaning definition was consistent with how "tax administration" was applied elsewhere in the comprehensive act as well as the meaning of these same words in the Internal Revenue Code.

Second, the Fund is "an entity that has administrative responsibility for taxes." The majority explained that the statute gave states the power to collect the social security numbers, but the states could only act through their agents. The Maryland Court of Appeals, an agent of Maryland, delegated authority to the Fund to collect the social security numbers.

Finally, the court found that Mr. Tankersley appeared to be affected by Maryland tax law. Although he lived in Virginia and worked in the District of Columbia, Mr. Tankersley appeared to be affected by Maryland tax law because his Maryland bar license gave him the ability to earn income in Maryland.

Judge Davis, in his partial dissent, disagreed with the majority's interpretation of the Tax Reform Act. He also reached the issue of whether the Privacy Act created a Section 1983 right.

Judge Davis explained that Section 405 of the Tax Reform Act should not be interpreted so expansively as to include the Fund's collection of attorney's social security numbers. First, Judge Davis explained that the Fund's collection of social security numbers was not for the purpose of administering a tax, as the Fund was not created for the purpose of administering tax law. Second, the Fund is not an entity that can collect social security numbers because it is not "an agency having administrative responsibility of the law involved." Judge Davis interpreted this language as referring to tax related agencies. Judge Davis also rejected the majority's agency argument stating that the Fund is an agent of the Maryland Court of Appeals not the state. Finally, Judge Davis found that Mr. Tankersley did not appear to be affected by Maryland tax law because he lives in Virginia and practices law in the District of Columbia.

Thus, Judge Davis reached the question of first impression: whether Section 7 of the Privacy Act creates a Section 1983 private right of action. He noted that the Ninth and Eleventh Circuits are split on this issue. Judge Davis found that Tankersley could bring a Section 1983 claim under the Privacy Act. Though the Act does not explicitly confer a private right of action and focuses on what states may not do, it states that individuals have the right not to disclose their social security numbers to government entities. This shows that the Act was intended to benefit people like Mr. Tankersley. Judge Davis found that this right was not too "vague and amorphous" for courts to enforce. Finally, he wrote that nowhere in the Act did Congress foreclose a Section 1983 suit. Thus, Mr. Tankersley had the right to bring a Section 1983 action under the Privacy Act.

The tension between the majority and dissent reflects competing concerns - the government's ability to administer its tax laws against citizen's concerns over the ability of the government to secure their data.

To read the full opinion click here.

Panel:
Circuit Judges Diaz and King, and Senior Circuit Judge Davis

Argument Date:
05/12/2016

Date of Issued Opinion: 09/13/2016

Docket Number: No. 15-1081

Decided:
Affirmed by published opinion

Case Alert Author:
Laura Tallerico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Scott Matthew Michelman, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., for Appellant. Michele J. McDonald, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Julie A. Murray, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., for Appellant. Brian E. Frosh, Attorney General, Alexis Rohde, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

Author of Opinion:
Circuit Judge Diaz (Majority), Senior Circuit Judge Davis (Concurring in Part, Dissenting in Part)

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 04:22 PM     4th Circuit     Comments (0)  

  United States v. White -- Fourth Circuit
Fourth Circuit Vacates Sentence After Supreme Court's Landmark Decision in Johnson v. United States

Areas of Law: Criminal Law; Constitutional Law; Civil Procedure; ACCA; Sentencing

Issues Presented: Whether the district court erred in denying a defendant's motion to suppress evidence when an officer extended a traffic stop after noticing the smell of marijuana while conducting the traffic stop. Whether the district court erred in classifying appellant as a career criminal after the Supreme Court invalidated the residual clause of the Armed Career Criminal Act ("ACCA").

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the District Court did not err in denying a motion to suppress evidence because the arresting officer had reasonable suspicion to initiate and extend a traffic stop. However, the Court of Appeals held the District Court did err in sentencing appellant to enhanced punishment as a career criminal under the ACCA after the Supreme Court's decision in Johnson v. United States.

Extended Summary:
On July 9, 2013, Corporal Justin Doughty of the Charleston Police Department was on patrol in Charleston, West Virginia, when he observed a car veer out of its lane. Corporal Doughty pulled over the car to determine whether the driver was impaired. When Corporal Doughty approached the vehicle, he smelled an odor of burned marijuana emanating from the car. Corporal Doughty asked the driver to step out of the car and asked her several questions to determine whether she was impaired and why there was a marijuana odor. Then Corporal Doughty ordered the passengers out of the car to question them about the marijuana odor. During questioning, Corporal Doughty saw a firearm tucked in the side passenger seat where one of the passengers, Desmond Ra'Keesh White, had been sitting. Corporal Doughty placed White under arrest and called for back-up. White admitted the firearm belonged to him.

White was indicted in the United States District Court for the Southern District of West Virginia for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). White filed a motion to suppress evidence obtained from the traffic stop. The District Court denied the motion after finding reasonable suspicion supported the initial traffic stop because Corporal Doughty witnessed the car veer out of its lane. Additionally, the odor of marijuana provided reasonable suspicion for the extension of the traffic stop and probable cause to search the car where the firearm was recovered. After the denial of the motion, White entered a conditional plea. The agreement allowed White to plead guilty to being a felon in possession of a firearm while retaining his right to appeal the denial of the motion to suppress. During sentencing, White was classified as an armed career criminal under the Armed Career Criminal Act ("ACCA") based on his prior West Virginia state robbery conviction and three prior West Virginia state burglary convictions. White did not object to his classification as a career criminal. The District Court found that White was subject to the ACCA sentence enhancement and sentenced White to the mandatory minimum of 15 years imprisonment. White appealed his sentence and challenged the district court's denial of his motion to suppress.

The Fourth Circuit held that the district court properly denied the motion to suppress, but vacated White's sentence as a result of the Supreme Court's decision in Johnson v. United States.

As to the sentencing issue, White argued that his West Virginia burglary convictions were no longer violent felonies after the Supreme Court invalidated the residual clause of the ACCA. The government contended that White could not challenge his sentence because he had abandoned his claim. The government also maintained on the merits that the West Virginia burglaries qualified as violent felonies under the ACCA's enumerated burglary definition.

Resolving the preservation issue first, the court held that White had not abandoned the right to challenging his sentence by failing to include the claim in his initial brief to the court. As the Fourth Circuit explained, "when an intervening decision of [the] court or the Supreme Court affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a new argument, case theory, or claim based on that decision while his appeal is pending without triggering the abandonment rule." White did not abandon his claim because he did not have the opportunity to bring it up before the Supreme Court's decision in Johnson v. United States, which was issued during the pendency of White's appeal.

The court then turned to consider whether White's prior burglary convictions qualified as violent felonies despite the invalidation of the residual clause of the ACCA. Reviewing the lower court's decision for plain error, the Fourth Circuit found that White needed to show: (1) there was an error; (2) the error was plain; and (3) the error affected substantial rights. In determining whether an error occurred, the Fourth Circuit turned to the Supreme Court's decision in Johnson v. United States. In that case, the Supreme Court held the residual clause of the ACCA is unconstitutionally vague and violates the due process clause. After invalidation of the residual clause, White's prior West Virginia burglary convictions did not qualify as predicate violent felonies under the ACCA. To be considered violent felonies, the West Virginia burglary convictions therefore needed to match the definition of burglary in the ACCA.

The court used the categorical approach to interpret the ACCA and found the West Virginia definition of burglary needed to be the same or narrower than the ACCA-enumerated generic burglary definition to qualify under the definition of burglary in the ACCA. The court found the West Virginia definition of burglary was broader than the generic ACCA definition of burglary, so the burglary convictions did not meet the ACCA definition of burglary. Consequently, White's burglary convictions were not violent felonies under the ACCA and White should not have been considered a career criminal under the ACCA. This error in determining whether White was a career criminal was plain error because the established law clearly determined there was an error. Additionally, the court found this error affected White's substantial rights because he would have received a maximum of 10 years in prison instead of a minimum of 15 years in prison had he been correctly sentenced. The Fourth Circuit vacated White's sentence and remanding the case to the district court for re-sentencing without the enhancement.

To read the full opinion, click here.

* * * * *

In a second case, United States v. Harper, appellant challenged the district court's application of the ACCA based on a finding that his February 1997 offenses constituted multiple ACCA predicate crimes. The Fourth Circuit affirmed the district court's finding, reasoning that the defendant's offenses occurred at different times and in at least three different locations. Notably, the appellant there also argued that the ACCA's requirement that predicates be "committed on occasions different than one another" was unconstitutionally vague under Johnson v. United States, 135 S.Ct. 2551 (2015). The Fourth Circuit rejected this argument, holding that, unlike the ACCA's residual clause in Johnson, the ACCA requirement at issue had a workable standard and thus was not questionable.

To read the full opinion, click here.

Panel: Judges Agee, Wynn, and Schroeder

Argument Date: 03/24/2016

Date of Issued Opinion:
09/09/2016

Docket Number:
15-4096

Decided: Affirmed in part, vacated in part, and remanded by published opinion.

Case Alert Author: Lauren Harrison, Univ. of Maryland Carey School of Law
Counsel: ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Jennifer Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal Public Defender, Lex A. Coleman, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 04:13 PM     4th Circuit     Comments (0)  

  United States v. Garcia-Lagunas -- Fourth Circuit
Headline: Fourth Circuit Panel Disagrees Over Harm of Ethnically-Charged Evidence

Areas of Law: Evidence, Criminal Law

Issue Presented: Whether the government's use of ethnically-charged evidence to rebut appellant's assertion that he was too poor to have dealt in large quantities of drugs was harmless beyond a reasonable doubt.

Brief Summary: In a published opinion from a panel rehearing, the United States Court of Appeals for the Fourth Circuit affirmed the appellant's conviction for conspiracy to distribute or possess with intent to distribute cocaine, despite finding that the government committed non-constitutional error by using ethnically-charged evidence to rebut the appellant's defense that he was too poor to have dealt drugs in the amounts alleged by the government. The majority found the trial court erred in allowing expert testimony that all "Hispanic drug traffickers" send money they earn in the trade back to their native countries. Nonetheless, the court found the error harmless due to the strength of the government's case against the appellant. The court also remanded the case back to the United States District Court for the Eastern District of North Carolina after vacating the appellant's sentence because of a miscalculation of his Guidelines range. In dissent, Judge Davis vehemently disagreed with the majority's finding of harmless error.

Extended Summary: In 2012, the police arrested Alejandro Garcia-Lagunas in a trailer in rural Robeson County, North Carolina during execution of a search warrant. Police found the appellant inside the trailer with white powder under his nose appearing impaired. The appellant produced $600 in cash from his pocket upon police request, as well as a cell phone which matched a phone number given by the informant as one he used to communicate with his supplier. Later analysis of that phone's records connected it with hundreds of phone calls to multiple known drug dealers, several of whom testified against the appellant pursuant to plea agreements. During their search, in addition to the phone and cash, officers recovered a handgun, small baggies, body armor, digital scales, a small baggie of crack cocaine, and a bag containing 800 grams of a white powdery substance later found to be cocaine.

The appellant was charged with conspiring to distribute or possess with the intent to distribute 500 grams of cocaine and unlawfully reentering the United States after having previously been deported. He pleaded guilty to the charge of unlawful reentry, but proceeded to trial by jury on the drug conspiracy charge. At the trial, the defense elicited testimony on cross-examination as to the poor conditions of the trailer. This testimony was offered in support of the defense theory that the appellant was not a drug trafficker but rather a drug user. On redirect, the detective stated that "he had extensive experience investigating 'Hispanic drug traffickers,' and that 'they're very modest living' because 'they send the majority if not all of the proceeds back to their native countries.'" In response to a defense objection, the government argued that the testimony was relevant to rebut evidence about the poor conditions of the trailer. At the bench, the District Court stated, "I'm not quite sure what the relevance of all of this is, but I do know, based on my experience, that most Latins send money home whether they're drug dealers or not." The District Court then overruled the objection and the detective repeated his testimony to the jury, stating, "It is consistent with Hispanic drug traffickers not to misuse the drug proceeds and to send or get rid of the proceeds, send them to their native countries or their next over them in the drug trafficking organization." This line of testimony was referenced by the government in closing argument to counter the defense's theory of the case. The jury found the appellant guilty.

A pre-sentence investigation report (PSR) added three two-level enhancements to the appellant's criminal responsibility for possession of a dangerous weapon, threatening or directing the use of violence, and obstruction of justice. The defense objected to all the enhancements, but the court only sustained two of those objections. Those two rulings lowered the appellant's offense level to 36, which in turn yielded a Guidelines range of 188 to 235 months' imprisonment. Then, pursuant to an agreement between the appellant and the government relating to a proposed amendment to the Guidelines, the offense level was lowered again to 34, with a Guidelines range of 151 to 188 month's imprisonment. The District Court then sentenced the appellant to 188 months' imprisonment, but stated that it was "impos[ing] a sentence at the low end of the range because this constitutes the defendant's first felony conviction." The District Court also sentenced the appellant to 24 months' imprisonment on the unlawful reentry conviction, to be served consecutively to the sentence on the conspiracy charge.

In holding that the District Court did err, the Fourth Circuit cited the rule that "injection of a defendant's ethnicity into a trial as evidence of criminal behavior is self-evidently improper and prejudicial." United States v. Cruz, 981 F.2d 659, 664 (2nd Cir. 1992). Proceeding then to the harmless error analysis, the court outlined the standard for this inquiry: whether beyond a reasonable doubt a rational jury would have found the defendant guilty absent the error. Neder v. United States, 527 U.S. 1, 18 (1999).

The court found that a rational jury would have arrived at the guilty verdict even absent the error beyond a reasonable doubt because of the strength of the evidence introduced by the government at trial: the quantity of the drugs involved in the conspiracy, the voluminous phone records, circumstantial physical evidence found at the scene, and the testimony of multiple corroborative drug dealers. Unlike cases in which courts ruled that evidentiary errors were not harmless, the Fourth Circuit found that "what [the appellant] did with his earnings from the drug trade was not an element of the prosecution's case against him." The court also stated that "although the government repeated the offensive stereotype in its closing argument, the improper evidence did not pervade the trial." Finally, the court held that "the challenged testimony did not open the door to the admission of further damaging evidence that would otherwise not have come in."

Regarding the appellant's challenge to his sentence, the court reviewed the contentions for plain error. The court found that the District Court had committed such error by miscalculating his offense level. Although the District Court stated it would impose a sentence at the low end of the range, it did so from the wrong range by failing to take into account one of the sustained objections. Furthermore, the Fourth Circuit found this error affected the appellant's substantial rights because it added roughly three years of imprisonment to his sentence.

Judge Davis dissented from the majority opinion as to the harmless error holding. In Judge Davis' view, the Government failed to prove beyond a reasonable doubt that the ethnically charged generalization did not contribute to the jury's verdict. Judge Davis found merit in the evidence put forth by the defense that the defendant was too poor to have committed this large-scale conspiracy and stated that there were two compelling narratives in front of the jury. He found such competing narratives were the natural course for many trials and the government should not have the benefit of "blatantly foul blows...abetted by the trial judge, in the use of racial or ethnic entreaties aimed at undermining or dismissing outright the defense theory of the case." Judge Davis found this evidence to be quite persuasively used by the government in closing argument, as evidenced by the persuasive effect it had on the trial judge. Judge Davis wrote, "At a moment in our country's history when uncommon attention is being paid to issues of racial and ethnic stereotyping and consequent mistreatment, actual or threatened, this Court chooses to privilege the Government to employ, without consequence, irrelevant, prejudicial, and factually unwarranted evidence of blatant racial stereotyping to obtain a criminal conviction. In this moment, not even the ethnic heritage of distinguished federal judges is beyond trashing in the public sphere, and by a prominent candidate for the most powerful office on the planet, no less."

To read the full opinion, click here.

Panel: Judges Duncan and Diaz, and Senior Judge Davis

Argument Date: 09/17/2015

Date of Issued Opinion: 09/01/2016

Docket Number: No. 14-4370

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Patrick J.L. Dillon, University of Maryland Carey School of Law

Counsel: ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. Thomas G. Walker, 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: Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 03:38 PM     4th Circuit     Comments (0)  

  Lund v. Rowan County, North Carolina -- Fourth Circuit
Headline: Lawmaker-Led Prayer at Public Board of Commissioners Meeting Constitutionally Permissible

Areas of Law: Constitutional Law

Issue Presented: Whether lawmaker-led invocations at a town Board of Commissioner's meeting violated the First Amendment.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held the lawmaker-led opening prayer at every Board of Commissioner meeting was permissible under the First Amendment because it was not coercive and lawmaker-led prayer has a rich history and tradition in both Congress and state legislatures.

Extended Summary: Rowan County, North Carolina opens their Board of Commissioners public meetings with Christian, lawmaker-led invocations. Appellees, a group of non-secular and non-Christian community members, challenged the Board's practice as a violation of the Establishment Clause of the First Amendment. They filed suit in the U.S. District Court for the Middle District of North Carolina because the prayer practice 1) unconstitutionally affiliated the Board with one particular faith - Christianity, and 2) coerced appellees into participating in the invocation as a condition of attendance. The District Court held that given then-controlling precedent, the lawmaker-led prayer made legislators impermissible "supervisors of prayer." The District Court acknowledged that the Supreme Court's Town of Greece decision, which upheld the introductory prayer at issue in that case, "dismantled" the Fourth Circuit's legislative prayer doctrine. Nonetheless, the District Court found a number of factual distinctions justified a result different from Town of Greece. In particular, the court emphasized that in the instant case the commissioners delivered the prayers, as opposed to clergy, deviating from the long-standing tradition of using a chaplain. Further, the District Court stressed that the Board's practice created a "closed universe of prayer-givers" that "inherently discriminates and disfavors religious minorities."

The Fourth Circuit reversed the judgment of the District Court and remanded with directions. The court analyzed the Supreme Court's 2014 decision in Town of Greece v. Galloway and held that lawmaker-led prayer is a historical practice that the country accepts and that the Board's practices did not implicate the concerns articulated in Town of Greece for finding invocations coercive. Further, the Fourth Circuit concluded that the lawmaker-led prayer was similar to that of the clergy-led prayer at issue in Town of Greece.

In a dissent, Judge Wilkinson discussed the conceptual differences between Town of Greece and the instant case. He noted that legislator-led prayer is the very embodiment of the state. Judge Wilkinson also highlighted several concerns with the Board of Commissioners in Rowan County, most importantly the fact that from November 2007 to the beginning of the lawsuit in March 2013, 139 out of 143 meetings began with legislators delivering prayers that explicitly referenced Christianity.

To read the full text of this opinion, click here.

Panel: Judges Agee, Wilkinson, and Shedd

Argument Date: 01/27/2016

Date of Issued Opinion:
09/19/2016

Docket Number:
No. 15-1591

Decided: Reversed and Remanded by Published Opinion

Case Alert Author: Dena Robinson, Univ. of Maryland Carey School of Law

Counsel: Allyson Newton Ho, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas, for Appellant. Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh, North Carolina, for Appellees.

Author of Opinion: Judge Agee

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 03:25 PM     4th Circuit     Comments (0)  

  Ghazzaoui v. Anne Arundel County, et al. -- Fourth Circuit
Headline: The Little Pro Se Litigant that Could: Fourth Circuit Rules that District Court Should Resolve Claims of Excessive Force and False Arrest

Areas of Law: Constitutional Law, Civil Procedure, Civil Law

Issue Presented: Whether the district court erred in granting the defense motion for summary judgment or erred in denying the plaintiff's motion for recusal.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held the district court improperly dismissed Ramez Ghazzaoui's excessive force and false arrest claims against Officer Dwayne Raiford because the parties disputed material issues of fact. The Fourth Circuit found the competing account of events, photographs, and video evidence was sufficient to send the case to a jury. The Fourth Circuit also remanded the case back to the district court because the court failed to rule on Ghazzaoui's claim that police unreasonably searched his bedroom. The court upheld the summary judgment motion again Corporal Doyle Holquist because he was not present at the start of the altercation and only assisted Raiford with the arrest. The court also dismissed Ghazzaoui's motion for recusal and request for a different judge, finding the request was unfounded.

Extended Summary:
Ramez Ghazzaoui filed a complaint alleging that police used excessive force and falsely arrested him after an altercation in Ghazzaoui's home. In the original complaint, Ghazzaoui claimed that on April 26, 2013, Officer Dwayne Raiford and Corporal Doyle Holquist entered his home shortly before midnight, after a community security guard notified the police, that Ghazzaoui's garage door was open. Ghazzaoui alleges that while he was sleep, police officers searched the first floor of his home before going to the second floor of the home where police found Ghazzaoui sleeping. In the complaint, Ghazzaoui says the officers requested to see his identification. However, once he produced his Maryland Driver's License the officers did not leave the home.

After an altercation with police, Ghazzaoui was arrested, and charged with: obstructing a police officer in the performance of his lawful duties, resisting arrest, failing to obey orders, and injuring a law enforcement officer engaged in the performance of his duties. All the charges were resolved in Ghazzaoui's favor. Ghazzaoui's complaint alleged he was falsely arrested, and police used excessive force in violation of 42 U.S.C § 1983, the Maryland Declaration of Rights, and Maryland tort law. The district court granted the defense motion for summary judgment and dismissed all of Ghazzaoui's claims.

The United States Court of Appeals for the Fourth Circuit, reviewing Ghazzaoui's excessive force claims de novo, found the district court correctly dismissed some claims on summary judgment, but improperly dismissed the entire suit. The Fourth Circuit analyzed the force a police officer uses under the Fourth Amendment's objective reasonableness standard to determine if the force was excessive. The Fourth Circuit ruled that the excessive force claim against Holquist could not survive summary judgment because Holquist only assisted Raiford with the arrest and did not see the initial altercation.

However, the court held that Ghazzaoui's excessive force claims against Raiford should proceed to a jury. Ghazzaoui contended that he complied with the officer's command to sit down, but was still thrown against a wall and then to the floor smashing his head on the ground, before he was arrested. Raiford contended that Ghazzaoui poked him with a pen, disobeyed orders to sit down, and fell to the ground while resisting arrest. The Fourth Circuit found the competing accounts of what happened, paired with photographs supporting Ghazzaoui's version of events, meant the disputed facts at issue should be resolved by a jury, not on summary judgment.

The Fourth Circuit also concluded that the district court improperly dismissed Ghazzaoui's false arrest claim on summary judgment. Under Maryland law, a false arrest claim can only survive summary judgment if the plaintiff can prove there was no probable cause for the arrest. Under Maryland law, a conviction is sufficient to prove probable cause, even if the judgment is reversed. However, Maryland law also recognizes that a conviction does not demonstrate probable cause if it was obtained by fraud, perjury, or other corrupt means. Similarly, under federal law, a § 1983 false arrest claim requires the plaintiff to establish the defendant caused the arrest without probable cause and that all the criminal charges were resolved in the plaintiff's favor. The Fourth Circuit noted that Ghazzaoui had photographs, and video footage that may suggest he was falsely arrested and that Raiford may have perjured himself in state court. Therefore, the Fourth Circuit ruled that Ghazzaoui's claim should proceed to a jury.

Finally, the Fourth Circuit found the district court ruling on the summary judgment motion did not address Ghazzaoui's claim that police conducted an unreasonable search of his bedroom. While Ghazzaoui won most of his claims on appeal regarding his summary judgment, the Fourth Circuit quickly dismissed his motion for a new judge, finding that Ghazzaoui's request for recusal based on claims of bias and corruption were unfounded.

To read the full opinion, click here.

Panel: Judges Niemeyer, Shedd, and Harris

Argument Date: 8/26/2016

Date of Issued Opinion: 9/8/16

Docket Number:
No. 15-2581

Decided: Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Case Alert Author: Fernando Kirkman, Univ. of Maryland Carey School of Law

Counsel:
Ramez Ghazzaoui, Appellant Pro Se. Hamilton F. Tyler, ANNE ARUNDEL COUNTY OFFICE OF LAW, Annapolis, Maryland, for Appellees.

Author of Opinion:
Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 02:05 PM     4th Circuit     Comments (0)  

  Calobrisi v. Booz Allen Hamilton, Inc. -- Fourth Circuit
Headline: Age or Gender Discrimination at Work? Me Too. Fourth Circuit Joins Six Circuit in Considering "Me-Too" Evidence with Griffin Factors

Areas of Law: Employment Law, Anti-Discrimination Law, Evidence

Issue Presented: Whether a court should analyze the admissibility of each piece of "other employee" evidence pursuant to Griffin factors when determining whether an employer's stated reason for demotion is a pretext for discrimination.

Brief Summary: The United States Court of Appeals for the Fourth Circuit reversed the District Court's grant of summary judgment to the defendant on discrimination and constructive discharge claims because the District Court failed to consider the plaintiff's proffered "other employee" evidence. The Fourth Circuit held that, to determine whether the defendant's stated reason for the plaintiff's demotion was a pretext for discrimination, the district court should have analyzed the admissibility of each piece of the "other employee" evidence pursuant to Griffin factors, and should have examined how closely related the "other employee" evidence was to the plaintiff's circumstances and theory of the case, as mandated by Sprint.

Extended Summary: If a plaintiff brings an employment discrimination claim under the McDonnell Douglas burden-shifting framework, the analysis proceeds in three steps. First, the plaintiff has the burden of establishing a prima facie employment discrimination case. Second, the employer must articulate a legitimate, non-discriminatory reason for taking the adverse employment action at issue. Third, the burden shifts back to the plaintiff to show that the stated reason for the adverse employment action is pretext for a discriminatory purpose. At the third step of the analysis, the plaintiff may help to establish pretext by offering "other employee" evidence. "Other employee" evidence is evidence that other similarly situated employees have allegedly encountered adverse employment actions similar to those that the plaintiff experienced.

As explained in Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008), a court must examine the admissibility of each piece of the "other employee" evidence - if the evidence is relevant under Rule 401, and, if so, whether it should nevertheless be excluded under Rule 403. The question of whether the "other employee" evidence is relevant is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.

Carla Calobrisi ("Carlobrisi"), a 55 year-old female Principal of Booz Allen Hamilton, Inc. ("Booz Allen"), was demoted to Senior Associate "due to workload," and many of her responsibilities were transferred to two younger women. After Calobrisi raised concerns that her demotion was the result of age and gender discrimination, her supervisor suggested that she leave Booz Allen. Calobrisi soon left Booz Allen, and her position was filled by a 31-year-old male.

Calobrisi filed a lawsuit against Booz Allen in the District of Columbia Superior Court, alleging sex-based discrimination under Title VII of the Civil Rights Act, aged-based discrimination under the Age Discrimination in Employment Act, and retaliation claims. Booz Allen removed the case to the United States District Court for the District of Columbia, and the case was then transferred to the United States District Court for the Eastern District of Virginia. The District Court granted summary judgment to Booz Allen on the retaliation and discrimination claims. With respect to the discrimination claims, the only contested issue was the third step under the McDonnell Douglas framework, i.e., whether Calobrisi produced sufficient evidence for a jury to conclude that the stated reason for her demotion was a pretext for a discriminatory purpose. Calobrisi alleged that Booz Allen maintained a glass ceiling that prevented female employees, particularly those who were older or in higher ranking positions, from advancing. To support this theory, Calobrisi offered "other employee" evidence, which included the testimony of seven middle-aged female former Booz Allen employees. The employees contended that they had been targeted for adverse employment actions similar to those that Calobrisi experienced. The District Court, however, summarily concluded this evidence would not be admissible at trial and refused to consider it when ruling on summary judgment.

The Fourth Circuit reversed the grant of summary judgment on the discrimination claims. Citing a Sixth Circuit case, Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012), the Fourth Circuit held that a court should consider the Griffin factors in determining the admissibility of "other employee" evidence. The Griffin factors include: (1) whether the other discriminatory behavior described is close in time to the events at issue in the case; (2) whether the same decision-makers were involved; (3) whether the witness and plaintiff were treated in a similar manner; and (4) whether the witness and plaintiff were otherwise similarly situated. The Fourth Circuit found the District Court did not individually analyze the admissibility of each piece of the "other employee" evidence pursuant to these Griffin factors. Moreover, the Fourth Circuit reasoned that the District Court's one-sentence admissibility analysis ignored both the similar treatment experienced by Calobrisi and other employee witnesses, and the overlap of several decision-makers at Booz Allen. Thus, the Fourth Circuit found the District Court failed to determine how closely related the "other employee" evidence was to Calobrisi's circumstances and theory of the case, as mandated by Sprint.

The Fourth Circuit remanded the case to the District Court to determine the admissibility of Calobrisi's proffered "other employee" evidence. In particular, the Fourth Circuit suggested that some of the other employees' testimony "appear[ed] relevant" based on the common decisionmakers involved in the witnesses' departures and the similarities of the departures' circumstances. For example, members of Booz Allen's all-male leadership team triggered several of the departures, and each departure featured an abrupt demotion or revocation of responsibilities after years of positive reviews.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Judges Motz and Keenan

Argument Date: 03/24/2016

Date of Issued Opinion: 08/23/2016

Docket Number: No. 15-1331 and No. 15-1399

Decided: Affirmed in part; vacated and remanded in part with instructions by unpublished per curiam opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law
Counsel: Linda Marie Correia, CORREIA & PUTH, PLLC, Washington, D.C., for Appellant/Cross-Appellee. Stephen William Robinson, MCGUIREWOODS LLP, Tysons Corner, Virginia, for Appellee/Cross- Appellant. ON BRIEF: Amber C. Trzinski Fox, Jonathan C. Puth, CORREIA & PUTH, PLLC, Washington, D.C.; John R. Ates, ATES LAW FIRM, Alexandria, Virginia, for Appellant/Cross-Appellee. Melissa L. Taylormoore, Sarah A. Belger, MCGUIREWOODS LLP,Tysons Corner, Virginia, for Appellee/Cross-Appellant. Daniel B. Kohrman, Laurie A. McCann, Dara S. Smith, AARP FOUNDATION LITIGATION, Washington, D.C., for Amicus Curiae.
Author of Opinion: Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 11:48 AM     4th Circuit     Comments (0)  

  United States v. Alfaro - Fourth Circuit
Headline: Fourth Circuit Broadly Defines "Forcible Sex Offense" Under Sentencing Guideline 2L1.2

Area(s) of Law: Criminal Law, Immigration Law, Sentencing Guidelines

Issue Presented: Whether appellant's previous conviction of third degree sexual offense under § 3-307 of the Maryland Code constitutes a crime of violence under § 2L1.2 of the U.S. Sentencing Guidelines.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court properly found appellant's prior conviction of third degree sexual offense qualified as a crime of violence under the Sentencing Guidelines.

Extended Summary: Osmin Alfaro entered the United States illegally from El Salvador when he was a teenager. In 2003, Alfaro was convicted of third-degree sexual offense under § 3-307(a)(1) of the Maryland Code for sexually assaulting his then-estranged wife. Alfaro was deported in 2008 after failing to register as a sex offender in Maryland. He illegally re-entered the country in 2010. In 2014, he came to the attention of federal authorities and pled guilty to failing to register as a sex offender and illegal re-entry. The district court applied a 16-level sentencing enhancement after concluding that Alfaro's prior felony conviction of third-degree sexual assault qualified as a crime of violence - forcible sex offense - and sentenced him to 46 months' imprisonment.

On appeal, Alfaro challenged the district court's decision, arguing that while his offense was "forcible," it did not amount to a crime of violence because it did not qualify as a sex offense. Alfaro argued that for his conviction to qualify as a forcible sex offense under the Guidelines, the statute must require that the prohibited conduct be committed with an intent to gratify sexual urges. Because § 3-307(a)(1) can be violated with an intent to abuse, his conviction was not a crime of violence as defined by the Guidelines, Alfaro argued.

The court disagreed and determined that an intent to abuse was sufficient for a "forcible sex offense" and defined "sex offense" as an offense involving sexual conduct with another person. Applying a modified categorical approach, the court looked to the plain, ordinary meaning of the language used in the Guidelines to determine whether Alfaro's conviction qualified as a "forcible sex offense." The court reasoned that because "forcible sex offense" is not a traditional common-law crime, it would be "difficult, if not impossible" to employ the categorical approach of surveying the states' criminal codes to determine if Alfaro's prior conviction met the criteria of a crime of violence.

The court determined that "sex offense" simply refers to criminal offenses involving sexual conduct and reasoned that the Sentencing Commission purposefully did not limit crimes of violence to rape, but rather included all sexual offenses that are forcibly committed. Further, the court argued, the Commission's decision to resolve a circuit split and amend the Guideline to clarify that a sex offense may be forcible in the absence of physical force supports an expansive definition of "sexual offense" instead of the restrictive one Alfaro sought to apply. The court joined other circuits in defining the "sex offense" portion of "forcible sex offense" very broadly. Ultimately, the court held the district court did not err by treating Alfaro's prior conviction as a "forcible sex offense" under the Guidelines and affirmed his sentence.

To read the full opinion, click here.

Panel: Judges Traxler, Shedd, and Floyd

Argument Date: 03/24/2016

Date of Issued Opinion: 08/29/2016

Docket Number: No. 15-4102

Decided: Affirmed by published opinion

Case Alert Author:
Yvette Pappoe

Counsel: ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Leslie Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Author of Opinion:
Judge Traxler

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 11:20 AM     4th Circuit     Comments (0)  

October 24, 2016
  Chaille Dubois, et al. v. Atlas Acquisitions LLC -- Fourth Circuit
Buyer Beware When Scheduling Debts in Chapter 13 Bankruptcies

Areas of Law: Bankruptcy Law

Issue Presented: Whether a debt collection agency violates the Fair Debt Collective Practices Act (FDCPA) by filing proofs of claim based on time-barred debts in a Chapter 13 bankruptcy.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that Atlas Acquisitions, LLC, a debt collection agency, did not violate the FDCPA and affirmed the bankruptcy court's dismissal of Appellant's FDCPA claims because although the debt was time-barred, the statute of limitations did not extinguish the debt and the debtor failed to schedule a time-barred debt.

Extended Summary: The Fair Debt Collections Practices Act (FDCPA) was enacted by Congress to eliminate abusive debt collection practices. The statute prohibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt," or from using "unfair or unconscionable" methods to collect a debt. When debt collectors are found to be in violation of the FDCPA they are liable for actual damages, statutory damages up to $1,000, and attorney's fees and costs.

This case concerns two debtors, Chaille Dubois and Kimberly Adkins, who secured loans from payday lenders that were eventually sold to a third party debt collector, Atlas Acquisitions, LLC. Adkins owed two debts to Atlas, one for $184.62 and another for $390.00. Dubois owed $135.00 to Atlas based upon a loan that originated with payday lender Iadvance.

In the bankruptcy court, Atlas brought a proof of claim against both Dubois and Adkins for the unpaid debts. A proof of claim is the mechanism by which a creditor can register its interest against the assets of the bankruptcy estate. In bankruptcy court, Adkins and Dubois filed complaints against Atlas alleging that Atlas' claims were essentially stale and violated the FDCPA. The bankruptcy court quickly determined that filing a proof of claim was not a form of debt collection activity under the FDCPA and dismissed all of Dubois' and Adkins' claims.

The United States Court of Appeals for the Fourth Circuit first found that filing a proof of claim was a debt collection activity that could be regulated by the FDCPA because filing a proof of claim is an attempt to collect a debt. Next, the Fourth Circuit held that when the statute of limitations does not extinguish a debt, a time-barred debt falls within the Bankruptcy Code's broad definition of a claim because a time-barred debt still constitutes a "right to payment." The Fourth Circuit held that filing a proof of claim in a Chapter 13 bankruptcy based on a time-barred debt does not violate the FDCPA when the statute of limitations has not extinguished the debt. The Fourth Circuit affirmed the Bankruptcy Court for the District of Maryland's dismissal of Dubois and Adkins' FDCPA claims.

To read the full opinion, click here.

Panel: Judges Diaz, Floyd, and Thacker

Argument Date: May 10, 2016

Date of Issue:
August 25, 2016

Docket Number: No. 15-1945

Decided: August 25, 2016

Case Alert Author: Dena Robinson, Univ. of Maryland Carey School of Law

Counsel: Morgan William Fisher, LAW OFFICES OF MORGAN FISHER LLC,
Annapolis, Maryland, for Appellants. Donald S. Maurice, Jr.,
MAURICE WUTSCHER, LLP, Flemington, New Jersey, for Appellee.
ON BRIEF: Courtney L. Weiner, LAW OFFICES OF MORGAN FISHER LLC,
Washington, D.C., for Appellants. Alan C. Hochheiser, BUCKLEY
KING, LPA, Cleveland, Ohio, for Appellee.

Author of Opinion:
Judge Floyd

Case Alert Supervisor:
Professor Renee Hutchins

    Posted By: Renee Hutchins @ 10/24/2016 10:40 AM     4th Circuit     Comments (0)  

  Amaya v. Power Design, Inc. -- Fourth Circuit
Fourth Circuit Confirms Private Right of Action Under FLSA

Areas of Law: Labor & Employment law

Issue Presented: Whether workers employed under federal contracts expressly incorporating two federal labor statutes (the Davis-Bacon Act and Contract Work Hours and Safety Standards Act) can bring claims for unpaid hourly and overtime wages under the Fair Labor Standards Act.

Brief Summary: The United States Court of Appeals for the Fourth Circuit vacated and remanded the district court's grant of summary judgment of plaintiffs' FLSA claims in favor of defendant Power Design, Inc. The subcontracts at issue were governed by the Davis-Bacon Act (DBA) and the Contract Work Hours and Safety Standards Act (CWHSSA). While neither of those two statutes provided for a private right of action, they also did not bar the plaintiffs' FLSA claims. The Fourth Circuit explained that Congress enacted FLSA knowing it would apply broadly despite overlap with other labor statutes. Because there are no conflicts between the three statutes, plaintiffs were entitled to bring unpaid hourly and overtime wages under FLSA.

Extended Summary: Twenty electrical construction workers sought unpaid hourly and overtime wages for work completed under federally-funded subcontracts. The relevant subcontracts expressly incorporated the DBA and CWHSSA. These two federal statutes regulate different aspects of federal construction contracts. However, the workers sought relief under the FLSA because, unlike the DBA and CWHSSA, the FLSA provides a private right of action in state or federal court. The United States District Court for the District of Maryland held the workers could not "circumvent" the DBA and CWHSSA's lack of private rights of action by bringing a FLSA claim. The trial court therefore granted summary judgment in favor of the defendant.

The Fourth Circuit reviewed the issue de novo. The court began by comparing the justifications for the three statutes and their enforcement mechanisms. The DBA and CWHSSA regulate only certain aspects of federal construction contracts. The U.S. Department of Labor can address violations of the two statutes by withholding contract funds or banning awards of federal contracts for up to three years. In contrast, the FLSA has a broader purpose to "to eliminate, as rapidly as practicable, substandard labor conditions throughout the nation" and "to raise living standards without substantially curtailing employment or earning power." To enforce this statute, individuals can bring suit for FLSA violations directly in state or federal court.

Next, the court reviewed precedent from the United States Supreme Court and the Fourth Circuit that explained the interaction between the FLSA and other labor statutes. This precedent instructed that such statutes are not mutually exclusive. Consequently, the applicable provisions of all statutes can apply insofar as they do not conflict.

Turning to the case before it, the Fourth Circuit held that because Congress intended the FLSA to apply broadly regardless of overlap with other labor statutes and because the three statutes do not conflict, the workers' FLSA claims were not barred by the subcontracts' inclusion of the DBA and CWHSSA. Before examining potential conflicts among the three statutes, the court noted that the language of both the FLSA and the DBA and CWHSSA envisioned that they could all be applied concurrently with one another and other federal labor statutes. For example, when Congress passed the CWHSSA it acknowledged that the FLSA already applied to a lot of the construction industry and therefore many contractors would be subject to "several different legislative standards and enforcement procedures applicable to the same conduct."

Next, the court rejected the defendant's proposed conflicts among the three statutes. First, the Fourth Circuit explained that the DBA and CWHSSA's failure to provide an implied private right of action does not amount to a conflict with the FLSA. The court also found the DBA's wage requirements, which may impose higher payments than the FLSA's federal minimum wage, did not create a conflict. Next, the court concluded that calculating overtime under each statute does not create a statutory inconsistency or conflict. Lastly, the court found there is no conflict between the DBA and FLSA when calculating overtime under the FLSA. The court also rejected the defendant's argument that the actual amount of overtime compensation sought by the workers created a conflict between the DBA and FLSA. This was in part because the purported conflict did not arise from the statutes themselves but from a Department of Labor regulation, and the court would not defer to a regulation that causes a conflict with the FLSA. Finally, determining the overtime compensation the workers are properly owed is an issue of proof for the district court, not a legislative conflict.

To read the full text of this opinion, click here.

Panel: Judges Diaz, Floyd, and Thacker

Argument Date: 05/10/2016

Date of Issued Opinion:
8/15/2016

Docket Number: No. 15-1691

Decided: Vacated and remanded by published opinion

Case Alert Author: Annie McGuire, Univ. of Maryland Carey School of Law

Counsel:
Argued: Daniel Adlai Katz, THE LAW OFFICES OF GARY M. GILBERT &
ASSOCIATES, P.C., Silver Spring, Maryland, for Appellants. Leslie A. Stout-Tabackman, JACKSON LEWIS P.C., Reston, Virginia, for Appellee. Erin Michelle Mohan, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. On Brief: Lucy Brierly Bansal, THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, Maryland; Virginia Rae Diamond, ASHCRAFT & GEREL, LLP, Alexandria, Virginia, for Appellants. Paul DeCamp, Jeremy S. Schneider, JACKSON LEWIS P.C., Reston, Virginia, for Appellee. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. Maurice Baskin, LITTLER MENDELSON, P.C., Washington, D.C., for Amicus Associated Builders and Contractors, Inc.

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/24/2016 10:14 AM     4th Circuit     Comments (0)  

September 23, 2016
  Lane v. Anderson, et al. -- Fourth Circuit
Speak Up! Wounded Officer May Bring First Amendment Claim Arising From Police-Related Shooting

Areas of Law: First Amendment; Constitutional Law; Civil Procedure; Employment

Issues Presented: Whether the district court lacked subject matter jurisdiction under the Rooker-Feldman doctrine in a First Amendment retaliatory discharge case when the plaintiff's claim previously failed in state court. Whether the Baltimore City Sheriff was entitled to qualified immunity in a 42 U.S.C. § 1983 claim by a police officer who was terminated after giving media interviews about potential police misconduct and corruption. Whether the Baltimore City Sheriff was entitled to Eleventh Amendment immunity in a 42 U.S.C. § 1983 First Amendment retaliation claim. Whether Baltimore City was liable for the Baltimore City Sheriff's termination of a police officer.

Brief Summary: In an unpublished per curiam opinion, the United States Court of Appeals for the Fourth Circuit held the District Court had subject matter jurisdiction under the Rooker-Feldman doctrine in a 42 U.S.C. § 1983 action for retaliatory discharge though the claim previously failed in Maryland state court. Moreover, the Fourth Circuit denied qualified immunity to the Baltimore City Sheriff on the basis that the First Amendment protects against the termination of a police officer for speaking out against misconduct and corruption in a media interview. The Fourth Circuit also reversed the District Court's judgment granting Eleventh Amendment immunity to the Baltimore City Sheriff and remanded the case for full consideration of the four-factor Ram Ditta analysis. Finally, the Fourth Circuit affirmed the District Court's holding that Baltimore City could not be held liable for the Baltimore City Sheriff's termination of a deputy sheriff.

Extended Summary: On September 15, 2008, appellant James Lane ("Lane"), a former deputy sheriff, suffered a gunshot wound to the face while attempting to execute an arrest warrant with fellow officers at a home in the Sandtown-Winchester neighborhood in West Baltimore. During the incident, another officer shot and killed 25-year-old Emory Lamont Lewis ("Lewis"), who was wanted under a different warrant for the first-degree murder of his former girlfriend. After the incident, the Baltimore City Sheriff's Office ("BCSO") conducted an internal investigation and concluded it was Lewis who shot Lane in the face. Skeptical of the investigation's conclusions, Lane informed his superiors that he believed another officer accidentally shot him during the incident. Lane's superiors dismissed his concerns and transferred Lane out of the Warrant Apprehension Task Force.

In December 2010, Lane gave interviews to multiple media outlets, during which he expressed doubt about the internal investigation and concern that the BCSO was attempting to cover up misconduct. In response to Lane's interviews, the BCSO administratively charged Lane with two counts of engaging in conduct that reflected unfavorably upon the BCSO, two counts of representing the BCSO publicly without permission, one count of publicly criticizing the BCSO, and one count of making false statements. The hearing board found Lane guilty of five out of the six counts, but concluded that Lane was not guilty of making false statements. Despite the hearing board's recommendation of a five-day suspension without pay, Baltimore City Sheriff John W. Anderson ("Sheriff Anderson") terminated Lane on the basis that his actions brought "disrepute" to the agency.

After unsuccessfully appealing his termination through Maryland state court, Lane filed in federal court a 42 U.S.C. § 1983 action against Sheriff Anderson, in his official and individual capacities, and against Baltimore City, alleging retaliatory discharge in violation of his First Amendment right to free speech and in violation of the Maryland Declaration of Rights. Dismissing his complaint, the District Court concluded (1) it lacked subject matter jurisdiction under the Rooker-Feldman doctrine; (2) Sheriff Anderson was entitled to qualified immunity and Eleventh Amendment immunity; and (3) Baltimore City was not liable for Sheriff Anderson's actions as a Maryland official.

The Rooker-Feldman doctrine bars federal district courts from directly reviewing state-court decisions. As a threshold matter, the Fourth Circuit held that the Rooker-Feldman doctrine did not apply in the instant case, because Lane's claim sought relief from the injury caused by his termination and not by the state-court decision.

Turning to the issues of immunity, the Fourth Circuit engaged in the two-prong analysis set forth in Smith v. Gilchrist, 749 F.3d 302 (4th Cir. 2014), and concluded that Sheriff Anderson was not entitled to qualified immunity. This two-factor analysis requires an examination of whether the allegations substantiate a violation of a federal statutory or constitutional right, and whether the violation was of a clearly established right of which a reasonable person would have known. First, the Fourth Circuit determined that the First Amendment protected Lane's speech on the basis that (1) he spoke on a matter of public concern when he discussed potential police misconduct and corruption to the media; (2) Sheriff Anderson failed to justify Lane's termination by asserting only generalized concerns about the speech's polarizing effects; and (3) Lane's speech was a substantial factor in his termination. Turning to the second prong in the analysis, the Fourth Circuit found that, at the time of Lane's discharge, it was clearly established in the circuit that the First Amendment protects against the termination of a law enforcement officer for speaking out against misconduct and corruption surrounding a police-involved shooting. On the issue of Eleventh Amendment immunity, the Fourth Circuit remanded the case for full consideration, reasoning that the District Court erroneously failed to employ the four-factor test described in Ram Ditta v. Maryland National Capital Park and Planning Commission, 822 F.2d 456 (4th Cir. 1987).

Finally, the Fourth Circuit affirmed the District Court's holding that Baltimore City could not be held liable for Lane's termination on the basis that Sheriff Anderson did not act as a Baltimore City policymaker when making employment decisions. Citing Monell v. Department of Social Services of New York, 436 U.S. 658 (1978), the Fourth Circuit recognized that a municipality may be liable in a § 1983 claim if an official municipal policy resulted in the alleged constitutional violation. Although he had final policy-making authority for employment decisions within the BCSO, Sheriff Anderson derived his authority from state law and therefore did not act as a Baltimore City policymaker when he terminated Lane.

To read the full opinion, click here.

Panel: Judges King, Diaz, and Thacker

Argument Date: 05/12/2016

Date of Issued Opinion: 08/17/2016

Docket Number: 15-2153

Decided: Affirmed in part; reversed and remanded in part by unpublished per curiam opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law

Counsel: Howard Benjamin Hoffman, Rockville, Maryland, for Appellant. Jason L. Levine, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Annapolis, Maryland; Jason Robert Foltin, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Steven H. Goldblatt, Director, Shon Hopwood, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee Anderson. George A. Nilson, City Solicitor, William R. Phelan, Jr., Chief Solicitor, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellee Mayor and City Council of Baltimore. Deborah A. Jeon, Sonia Kumar, Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, Baltimore, Maryland; Debra Gardner, Tassity Johnson, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici American Civil Liberties Union Foundation of Maryland and Public Justice Center.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 09/23/2016 08:35 AM     4th Circuit     Comments (0)  

May 3, 2016
  Stop "Reid," et al. v. F.E.C. -- Fourth Circuit
Fourth Circuit Puts a Stop to Stop Reid

Areas of Law: Election law, Fifth Amendment

Issue Presented: Whether it violates the Fifth Amendment to impose different donation limits on non-connected political committees that have satisfied all criteria, except the waiting period, to become multi-candidate political committees.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court should have dismissed Stop Reid's first two claims for a lack of subject matter jurisdiction (rather than dismissing them on the merits in a motion for summary judgment), because the claims were moot after the plaintiff became a multi-candidate political committee. The court affirmed the district court's dismissal of the Tea Party Leadership Fund's claim that limits placed on multi-candidate political committee donations violated the Equal Protection clause of the Fifth Amendment because political committees that have satisfied all of the criteria except the waiting period were not subject to such limits.

Extended Summary: The Federal Election Campaign Act regulates the donation amount that groups can contribute to political campaigns. A political committee is a group of people that receive or spend at least $1,000 in a calendar year to influence the outcome of an election. A political committee may donate up to $2,600 per candidate, $34,400 to national party committees, and $10,000 combined to state party committees. The primaries and the general elections are considered separate elections for the purposes of calculating donation limits.

If a political committee meets certain criteria, it is eligible to become a multi-candidate political committee (MPC), with different donation limits. In order to be eligible for this classification, the political committee must: 1) have been registered with the Federal Election Committee for at least six months, 2) received donations from more than 50 people, and 3) made donations to at least five candidates for federal office. If these criteria are met, a political committee can become an MPC. The donation limits for a MPC are $5,000 to individual candidates, $15,000 to national party committees, and $5,000 to state party committees.

This case springs from the 2014 elections, during which a group named Stop Economic Instability Caused by Democrats (the opinion alternately refers to plaintiff as "Stop Reid" and "Stop Pac;" this alert will use "Stop Pac" for the sake of consistency), donated $2,600 to three political candidates and wished to donate additional funds totaling $5,000. Stop Pac met all the criteria in order to be classified as a MPC but had not fulfilled the necessary waiting period.

The Tea Party Leadership Fund ("the Fund"), which was already classified as an MPC, donated $5,000 to the Alexandria Republican City Committee ("ARCC"). The Fund wished to donate additional funds to the ARCC, totaling $10,000.

In the district court, the Plaintiffs brought three claims. First, Stop Pac alleged the donation limits set forth in the Federal Election Campaign Act violated the Equal Protection clause of the Fifth Amendment because MPCs are given a higher donation limit than those political committees who have satisfied all criteria except the waiting period. Second, Stop Pac argued the waiting period violated the First Amendment right to free speech and free association. Lastly, the Fund alleged the donation limits placed on MPCs violated the Equal Protection clause of the Fifth Amendment because political committees who have satisfied all criteria to become MPCs except the waiting period are similarly situated and have higher donation limits. The district court granted summary judgment to the Federal Election Committee on all counts.

The Fourth Circuit quickly disposed of the first two claims. Stop Pac became an MPC prior to the district court's ruling. The Fourth Circuit held that "capable of repetition yet evading review" in election law meant that a group might be subject to that same law in the future. The court held that since Stop Pac would not be held to the same donation limits in the future its claims were now moot and the district court had no authority to rule on the merits. The Fourth Circuit reversed and remanded the first two counts with instructions to the district court to dismiss them for lack of subject matter jurisdiction.

The Fourth Circuit further held the District Court had jurisdiction to hear the Fund's claim as the Fund would be subject to the same donation limitations in future. The court, however, ruled there was no discrimination regarding the donation limits. While MPCs have lower donation limits for national and state party committees, they have higher donation limits for individual candidates. The Fourth Circuit affirmed the district court's ruling.

To read the full opinion, click here.

Panel: Chief Judge Traxler, Judges Shedd and Dillon

Argument Date: 12/08/2015

Date of Issued Opinion: 02/23/2016

Docket Number: No. 15-1455

Decided: Affirmed in part; vacated and remanded in part with instructions by published opinion.

Case Alert Author:
Kathleen DeNobile, Univ. of Maryland Carey School of Law

Counsel: Michael T. Morley, COOLIDGE-REAGAN FOUNDATION, Washington, D.C., for Appellants. Kevin Paul Hancock, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellee. ON BRIEF: Dan Backer, DB CAPITOL STRATEGIES, Alexandria, Virginia, for Appellants Stop Reckless Economic Instability Caused by
Democrats, Tea Party Leadership Fund, and Alexandria Republican City Committee; Jerad Najvar, NAJVAR LAW FIRM, Houston, Texas, for Intervenor-Appellant American Future PAC. Lisa J. Stevenson, Deputy General Counsel-Law, Kevin Deeley, Acting Associate General Counsel, Harry J. Summers, Assistant General
Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 05/03/2016 01:06 PM     4th Circuit     Comments (0)  

April 27, 2016
  United States v. Robinson -- Fourth Circuit
Frisk No More: Person Carrying Weapon in 'Shall Issue' State Not Automatically Dangerous

Areas of Law: Criminal Procedure

Issue Presented: Whether a police officer had reasonable suspicion to believe a person carrying a concealed weapon in a 'shall issue' state was presently dangerous.

Brief Summary: The Ranson, West Virginia police department received an anonymous tip that a black man loaded a gun and then concealed it. The anonymous caller identified the car that the man got into. The officers later stopped the car and asked the suspect, Robinson, to exit the vehicle. An officer then frisked Robinson and discovered a gun in his pants pocket. The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") held that although Robinson was armed, he was not dangerous simply because he was reported as carrying a concealed firearm. Carrying a concealed weapon is not itself illegal in West Virginia and the facts surrounding the stop and frisk did not provide the officers with an objective basis to infer danger. Therefore, the Fourth Circuit held the officer who frisked Robinson lacked reasonable suspicion to believe that Robinson was armed and dangerous.

Extended Summary: As explained in Terry v. Ohio, 392 U.S. 1 (1968), police officers "may conduct a limited pat-down for weapons when there is reasonable suspicion that a suspect is both armed and dangerous." Whether Robinson was armed was not an issue in this case. The Fourth Circuit based its holding on the second prong of the Terry analysis, whether Robinson was dangerous.

The moment officers approached Robinson in his vehicle they asked him to step out. Robinson complied. The officers then asked Robinson if he had any weapons and "Robinson gave [them] a 'weird look.'" The officers then proceeded to frisk him and discovered a firearm in Robinson's pants pocket. Robinson was cooperative throughout the entire encounter. Only after frisking him did one of the officers recognized "Robinson from prior criminal proceedings and confirmed that Robinson was a convicted felon." A grand jury indicted Robinson on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Robinson moved to suppress the evidence challenging the unconstitutionality of the frisk. A magistrate judge assigned to the motion concluded that the frisk "was not supported by a 'reasonable belief that [Robinson] [was] armed and presently dangerous.'" The district court rejected the magistrate's holding and found that "a reasonable suspicion that Robinson was armed in a high-crime area, when combined with Robinson's failure to answer when asked by an officer if he was armed" gave the officer reasonable suspicion to believe Robinson was dangerous.

The Fourth Circuit reviewed the district court's factual findings for clear error and its legal conclusions de novo. According to the Fourth Circuit, "a valid [Terry] stop does not automatically entitle an officer to conduct a 'frisk.'" Instead, an officer "may frisk a person who has been legally stopped only if the officer has a reasonable and articulable suspicion that the person is 'armed and presently dangerous.'" In analyzing the justification for a frisk, the court must consider the totality of the circumstances "to determine if the officer had a 'particularized and objective basis' for believing that the detained suspect might be armed and dangerous."

The Fourth Circuit then analyzed whether Robinson was presently dangerous. First, the court noted that if "carrying a concealed firearm were prohibited by local law, then a suspect concealing a gun" would be considered presently dangerous. However, that is not the case in West Virginia. In 'shall issue' jurisdictions, such as West Virginia, where "it is legal to carry a gun in public ... and it is legal to carry a concealed firearm with a permit," the Fourth Circuit held that there is no reasonable suspicion to believe "that a person carrying or concealing a weapon during a traffic stop is anything but a law-abiding citizen who poses no danger to the authorities." The court noted that the United States Court of Appeals for the Sixth, Third, and Seventh Circuits have reached similar conclusions when open and concealed carry of a weapon is permitted by law. This, according to the court, is what the Supreme Court found "unacceptable in Gant." The court noted "it is no more acceptable here." The court also noted that a "frisk must be justified on the basis of 'what the officers knew before they conducted their search.'" See Florida v. J.L., 529 U.S. 266, 271 (2000).

The officer in this case did not discover that Robinson was a convicted felon until after the frisk took place. The court noted that officer safety is a "serious concern" under Terry, however West Virginia does not have a "'duty to inform' [law], which [requires] individuals carrying concealed weapons to disclose that fact to the police if they are stopped." In such cases, a "generalized risk to officer safety" is not enough to justify a frisk.

Next, the court analyzed whether Robinson's non-answer when asked if he was armed was a significant factor permitting the officers to infer that Robinson was dangerous. The court held that it did not.

In dictum, the Fourth Circuit noted that allowing officers to frisk a person carrying a gun in a 'shall issue' state would "'give police officers unbridled discretion...' implicating concerns about abuse" of police power. Further, the court noted that this could give "rise to 'the potential for intentional or unintentional discrimination based on neighborhood, class, race, or ethnicity.'" Lastly, the court noted that in a 'shall issue' state, a high crime area is exactly the place a law abiding citizen may feel the need to carry a weapon the most.

In dissent, Judge Niemeyer wrote that the majority's opinion contained "flaws of law and logic." Citing Pennsylvania v. Mimms, he noted that the Supreme Court has held "that a reasonable officer need have only a suspicion that the individual who has been lawfully stopped is armed and thus dangerous." According to Judge Niemeyer, "the dangerousness justifying the frisk arises from the combination of the police forcing an encounter with a person and that person's possession of a gun, whether the possession of a gun was legal or not." Lastly, Judge Niemeyer explained that the majority "has forgotten Terry's fundamental principle that the Fourth Amendment does not 'require...police officers [to] take unnecessary risks in the performance of their duties.'"

To read the full opinion, click here.

Panel: Judges Niemeyer, Harris, and Davis.

Argument Date: 10/29/2015

Date of Issued Opinion: 02/23/2016

Docket Number: No. 14-4902

Decided: Reversed and vacated by published opinion

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Jarod James Douglas, OFFICE OF THE UNITES STATES ATTORNEY, Wheeling, West Virginia, for Appelle. On Brief: Kristen M. Leddy, Research and Writing Specialist, Office of the Federal Public Defender, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/27/2016 03:04 PM     4th Circuit     Comments (0)  

  Kolbe et al. v. Hogan et al. -- Fourth Circuit
Fourth Circuit Creates Circuit Split on Gun Control Issue--Next Stop the Supreme Court?

Areas of Law: Constitutional Law, Second Amendment

Issue Presented: Whether the assault rifles and high capacity magazines banned under the Firearm Safety Act were protected under the Second Amendment and whether Maryland's Firearm Safety Act is constitutional under the Second Amendment.

Brief Summary: Plaintiffs challenged the district court's finding that the Firearm Safety Act (FSA) is constitutional. The United States Court of Appeals for the Fourth Circuit found that the district court incorrectly used intermediate rather than strict scrutiny to evaluate the FSA. The Fourth Circuit, however, upheld the lower court's finding that there was no equal protection challenge to the FSA and that the FSA was not void for vagueness.

Extended Summary: Maryland passed the Firearm Safety Act (FSA), which bans approximately sixty types of assault rifles, their "copies," and high capacity magazines. The FSA carved out an exception for retired law enforcement personnel, who retained their service weapons upon retirement. Plaintiffs challenged the constitutionality of the FSA, claiming that the statute violated their Second Amendment right to bear arms. Plaintiffs also alleged that the statute was void for vagueness for failing to define what constituted a "copy," and raised an equal protection claim because of the difference in treatment between the average citizen and retired law enforcement personnel.

The district court upheld the FSA's ban on assault rifles as constitutional using intermediate scrutiny. The district court also denied the plaintiffs' claim that the term "copies" was void for vagueness. Finally, the court found that the average citizen and a retired law enforcement officer were differently situated and thus could be afforded different treatment without violating the Constitution.

The Fourth Circuit reviewed the issues de novo. The court first looked at whether assault rifles and high capacity magazines were subject to the protections of the Second Amendment. In order for Second Amendment protections to apply, the firearm in question must be 1) in common use, 2) commonly possessed by law abiding citizens for lawful use and 3) not dangerous and unusual. The court held that assault rifles and large capacity magazines are in common use by law abiding citizens for lawful purposes such as home defense, hunting, and target practice. It also held that the terms "dangerous and unusual" must be read together because all firearms are dangerous. Thus, for a firearm to be excluded from Second Amendment protection a firearm must be both dangerous and unusual. In this context, "unusual" meant "rare." The court held that assault rifles and high capacity magazines are not "dangerous and unusual." They are therefore subject to Second Amendment protection. Because assault rifles and high capacity magazines are subject to Second Amendment protections, the Fourth Circuit held that the FSA should have been reviewed using strict scrutiny rather than intermediate scrutiny and remanded for the district court to apply the correct standard. This decision creates a circuit split between the Fourth Circuit and the Second and District of Columbia Circuits.

The court affirmed the district court on the Equal Protection challenge. The court held that retired law enforcement officers are sufficiently different (and thus could be treated differently) from ordinary citizens so as to warrant different treatment in three ways: that law enforcement have a unique combination of training and experience that an ordinary citizen does not have, that law enforcement has a "special degree of trust" and will likely act to protect citizens, and that law enforcement faces increased threats as a result of their employment that the average citizen does not.

The court also affirmed the district court's holding that the statute was not void for vagueness. The court held that the term "copies" was easily understood by the average citizen as a weapon which was a replica of another.

Judge King dissented from Part III of the opinion, regarding the level of scrutiny that the statute warranted. Judge King disagreed with the majority's reading of "dangerous and unusual." Judge King believed assault rifles to be military-like and unusually dangerous. In Judge King's view, such weapons therefore do not qualify for Second Amendment protection. Judge King would have affirmed the District Court's use of intermediate scrutiny.

Chief Judge Traxler dissented from Part IV of the opinion. Chief Judge Traxler wrote that retired law enforcement officers are no differently situated from the ordinary citizenry and would have remanded the equal protection challenge for further review.

To read the full opinion click here.

Panel: Chief Judge Traxler and Judges King and Agee

Argument Date: 04/25/15

Date of Issued Opinion: 02/04/16

Docket Number: Case Nos. 14-1945

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Kathleen DeNobile, 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. Douglas F. Gansler, 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, Assistant Attorney 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 4 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, 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 5 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.

Author of Opinion:
Chief Judge Traxler on Parts I, II, III, V, and VI. Judge Agee on Part III

Dissenting Opinion: Judge King on Part III, and Chief Judge Traxler on Part IV

Case Alert Supervisor: Professor Renée Hutchins

Edited: 05/03/2016 at 12:28 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 04/27/2016 02:51 PM     4th Circuit     Comments (0)  

April 19, 2016
  United States v. Under Seal -- Fourth Amendment
Juvenile Cannot Be Tried as Adult Where No Constitutional Punishment for Conviction Would Exist

Areas of Law: Criminal Law

Issue Presented: Whether a juvenile can be tried as an adult under statute that mandates punishment upon conviction that is not constitutional for juveniles.

Brief Summary: A juvenile cannot be tried as an adult if the statute that the government seeks to try the juvenile under only provides mandatory life imprisonment or death as possible punishments because both are unconstitutional when imposed on juveniles.

Extended Summary: The defendant (whose name was withheld because he was a juvenile when the crime was committed) was alleged to have been involved in a gang-related murder shortly before his eighteenth birthday. The government sought to have him tried as an adult under 18 U.S.C §1959 (a)(1) for murder in the aid of racketeering. The defense opposed the motion to try the defendant as an adult on the basis that the punishments outlined by the statute, mandatory life imprisonment or death, were deemed by the Supreme Court to be unconstitutional when applied to juveniles. The District Court agreed and denied the transfer motion because the defendant could not be constitutionally sentenced if convicted. The government filed an interlocutory appeal based on the District Court's ruling.

The United States Court of Appeals for the Fourth Circuit affirmed the District Court's decision. The court held that the minimum penalty proscribed by the statute was mandatory life imprisonment, thus the District Court did not have discretion to sentence the defendant to a term less than life. This would have resulted in an unconstitutional sentence.

The court also held that the penalty clause of the statute could not be severed from the portion that defined the criminal act to cure its constitutional defect because the primary purpose of a criminal statute is to outline a penalty for criminal conduct. Without the penalty clause, the statute would not provide a penalty. Furthermore, severing the penalty clause would not provide adequate notice to the public about possible punishments a person might face if convicted under the statute. Therefore, severing the penalty clause would be unfair.

To read the full text of this opinion, click here.

Panel: Judges Agee, Harris, and Chuang

Argument Date: 12/8/2015

Date of Issued Opinion: 04/30/2016

Docket Number: Case Nos. 15-4265

Decided: Affirmed by published opinion

Case Alert Author: Kathleen DeNobile, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Julia K. Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Keva Jeannette McDonald, THE LAW OFFICE OF KEVA J. MCDONALD, Fairfax, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Stephen M. Campbell, Tobias D. Tobler, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Frank Salvato, SALVATO LAW, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/19/2016 01:31 PM     4th Circuit     Comments (0)  

  Yates v. Terry et al. -- Fourth Circuit
Qualified Immunity No Guarantee for Police: Officer Faces Trial After Using Excessive Force on Iraq War Veteran

Areas of Law: Constitutional Law, Civil Law

Issue Presented: Whether denial of police officer's summary judgment motion in case alleging excessive force during a traffic stop (42 U.S.C. § 1983) should be reversed based on qualified immunity.

Brief Summary: In a published opinion written by Judge Biggs, the United States Court of Appeals for the Fourth Circuit ("the court") affirmed the district court's denial of Officer Christopher Terry's motion for summary judgment. The court held that Officer Terry did not have qualified immunity to protect him from liability for using excessive force on Brian Yates. More specifically, the court went through a two-step inquiry to determine whether Officer Terry was entitled to qualified immunity. First, the court was tasked with determining whether the facts established a constitutional violation. The court found that Officer Terry violated Yates' Fourth Amendment rights by using excessive force on him when he tased him three times during the traffic stop in question. Second, the court had to determine whether Yates' constitutional right to be free from such excessive force was clearly established. The court explained that any reasonable official in Officer Terry's position would have understood that his conduct of tasing a compliant arrestee three times during a non-threatening traffic stop was excessive force in violation of the arrestee's Fourth Amendment right to a reasonable seizure.

Extended Summary: On December 27, 2008, Brian Yates, a first sergeant and Iraq War Veteran, was driving on a highway in North Charleston, South Carolina. His mother and brother were in separate vehicles following closely behind him. While on the highway, Yates drove past two police cruisers, one being Officer Terry's. Officer Terry pulled onto the highway and was two vehicles behind Yates. When Officer Terry eventually activated his lights, Yates believed the officer was pulling over the car behind him. As a result, Yates switched lanes to allow Officer Terry to pass him. When Yates realized Officer Terry was attempting to pull him over, he compliantly stopped at a gas station.

At the gas station, Officer Terry approach Yates' vehicle and asked for his license. Yates indicated that he did not have his license on him but did have his military identification. Officer Terry then forced Yates out of his car and ordered him to put his hands on top of the car. Yates complied. Yates' mother and brother arrived at the scene during this time. Officer Terry then informed Yates that he was under arrest. When Yates asked why the officer did not provide an explanation. Yates kept both hands on the vehicle, but turned his head to the left. Officer Terry responded to Yate's movement by tasing him and Yates fell to the ground. Yates remained on the ground and did not make any attempts to get up, but Officer Terry proceeded to tase him a second time. After this second tase, Yates asked his brother to call his commanding officer and reached for his cell phone which was clipped to his waist. Officer Terry then tased Yates a third time. Following these events, other officers arrived on the scene and Yates was placed in handcuffs. He was charged with an excessive noise violation, no license in possession, and disorderly conduct. All of these charges were dropped.

On July 21, 2011, Yates filed this action in state court alleging multiple state and federal claims against Officer Terry, the City of North Charleston, the North Charleston Police Department, the Chief, and Unnamed John Does. The suit was removed to federal court and stayed while Yates was deployed to Germany and Kosovo. In May of 2014, Defendants moved for summary judgment and this motion was granted in all parts except with respect o the excessive force claim against Officer Terry in his individual capacity and various claims against the city. The claims against the city were eventually dropped after a subsequent motion, but Terry's excessive force claim was still at issue.

On April 28, 2015, the parties stipulated to all dismissals aside from Yates' 42 U.S.C. § 1983 claim for excessive force against Officer Terry. As a result, Officer Terry appealed this claim to the United States Court of Appeals for the Fourth Circuit, claiming that he was protected by qualified immunity. The court held that Officer Terry did not have qualified immunity to protect him from using excessive force on Yates. More specifically, the court went through a two-step inquiry to determine whether Officer Terry was entitled to qualified immunity.

First, the court was tasked with determining whether the facts established a constitutional violation. Here, Yates argued that Officer Terry used excessive force, which would be in violation his Fourth Amendment right to reasonable searches and seizures. As such, the court turned to the factors in Graham v. Conner to determine whether the amount of force used by Officer Terry was objectively reasonable. 490 U.S. 386 (1989). These factors included "the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. The court found that all three factors weighed heavily in Yates' favor. First, his offense of driving without a license was a nonviolent minor traffic infraction and was only a misdemeanor. Second, Yates was unarmed and complied with all of the officer's orders, making the first two tases completely unreasonable. Moreover, even though Yates reached for his cell phone prior to being tased a third time, Yates' brother indicated at trial that the officer allowed Yates to slide him the phone and knew the reason Yates gave him the phone. Lastly, Yates never attempted to resist arrest or flee the scene.

Second, the court had to determine whether Yates' constitutional right was clearly established. The court explained that any reasonable official in Officer Terry's position would have understood that tasing a compliant arrestee three times during a non-threatening traffic stop was excessive force in violation of the arrestee's Fourth Amendment right to a reasonable seizure. As such, the court found that Officer Terry was not entitled to qualified immunity and thus affirmed the district court's denial of his motion for summary judgment.

To read the full opinion, click here.

Panel: Judges Wynn, Harris, and Biggs

Argument Date: 01/27/2016

Date of Issued Opinion: 03/31/2016

Docket Number: Case No. 15-1555

Decided: Affirmed by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Robin Lilley Jackson, SENN LEGAL, LLC, Charleston, South Carolina, for Appellant. Jason Scott Luck, SEIBELS LAW FIRM, P.A., Charleston, South Carolina, for Appellee. ON BRIEF: Gordon H. Garrett, GARRETT LAW OFFICES, North Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Biggs

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/19/2016 07:32 AM     4th Circuit     Comments (0)  

April 11, 2016
  Gentry v. East West Partners Club Management, Inc. et al. -- Fourth Circuit
Finding the Right Standard: Court Upholds "But-For" Standard for Unlawful Termination Claim

Areas of Law: Employment Law, Disability Law, Americans with Disabilities Act

Issue Presented: (1) Whether the Americans with Disabilities Act requires proof that a plaintiff's disability was the "but-for" cause of termination. (2) Whether the district court's jury instruction on the definition of "disability" under the ADA was proper. (3) Whether the jury's award for damages was proper and adequate.

Brief Summary: In a unanimous decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's jury instruction on the proper causation standard under the Americans with Disabilities Act ("ADA") and the district court's jury instruction on the definition of disability under the ADA. The court also held that the jury's award for damages was adequate and proper.

Extended Summary: Judith Gentry was employed as an executive housekeeper at the Maggie Valley Club and Resort ("club"). In July 2007, Gentry fell at work and sustained a serious injury to her left foot and ankle. After surgery, she returned to work in January 2009; however, she continued to experience pain and difficulty walking. About a year later the club attempted to settle Gentry's workers' compensation claim, but Gentry declined out of fear that if she accepted, she might be terminated. Instead, she chose to mediate and her claim was ultimately settled in November 2010.

About a month later, Gentry was terminated. Gentry believed her termination was unlawfully connected to her disability and she sued the club on several state law grounds and under the ADA. At trial the jury found for Gentry on two of her state law theories, awarding her $20,000 in damages, but found for the club on all of her other claims. On appeal, Gentry challenged the jury instructions and the amount of damages awarded.

First, the Fourth Circuit determined that the district court's jury instruction on the termination standard for claims under the ADA was proper. The district court instructed the jury that to find for Gentry it must find that but-for Gentry's disability she would not have been terminated. On appeal, Gentry argued that the district court should have used the "motivating factor" standard instead - i.e., that the jury should find for her if her disability was a motivating factor in the decision to terminate her. The court analyzed the text of the ADA and held that its language required but-for causation. That conclusion, the court wrote, is also supported by the legislative history.

Next, the court addressed the definition of disability that the district court submitted in its instructions to the jury. Gentry argued that she was disabled under each of the three definitions of disability contained within the ADA. Under the ADA, if "a physical or mental impairment substantially limits one or more major life activities of [an] individual" then that individual is disabled. The district court instructed the jury that "substantially limits" means "restricts a person from performing [an] activity, compared to an average person in the general population." The court reviewed that instruction for plain error, and held that even assuming the instruction was erroneous Gentry's substantial rights were not affected. Accordingly, there was no reasonable probability that the court's instruction affected the outcome of her claim.

Under the ADA, an individual is also defined as "disabled" if that individual is "regarded as having such an impairment." The district court instructed the jury that it must decide if "a perception that [Gentry] was disabled, was the but-for reason" that she was terminated. The appellate court reviewed the instruction for abuse of discretion and found no such abuse.

Under the ADA, if an individual has "a record of...an impairment" then they are considered disabled. At trial, the district court omitted language from the instruction that would include even misclassified disabilities within that definition. However, because Gentry neither objected at trial, nor explained how the omission applied to her case, the court held that the district court did not abuse its discretion.

Finally, Gentry challenged the amount of damages the jury awarded. Gentry argued that because the club was permitted to explain its financial distress to the jury, she should have been able to introduce evidence that the club had liability insurance coverage. The court reviewed the district court's decision to not admit that evidence and held that it did not abuse it discretion in denying admission. Gentry also argued that she was entitled to a new trial because the jury's $20,000 award was inadequate. However, the court held that, in light of several mitigating factors that were submitted to the jury, it was reasonable for the district court to deny Gentry's motion for a new trial.

To read the full text of this opinion, please click here.

Panel: Judges Agee, Floyd, and Thacker

Argument Date: 12/10/2015

Date of Issued Opinion: 3/4/2016

Docket Number: 14-2382

Decided: Affirmed by published opinion

Case Alert Author:
Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Glen Coile Shults, Jr., LAW OFFICE OF GLEN C. SHULTS, Asheville, North Carolina, for Appellant. Matthew J. Gilley, FORD HARRISON, LLP, Spartanburg, South Carolina; Jonathan Woodward Yarbrough, CONSTANGY, BROOKS, SMITH & PROPHETE, LLP, Asheville, North Carolina, for Appellees. ON BRIEF: Jule Seibels Northup, NORTHUP MCCONNELL & SIZEMORE, PLLC, Asheville, North Carolina, for Appellant.

Author of Opinion: Judge Floyd

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 12:25 PM     4th Circuit     Comments (0)  

  United States v. Adams -- Fourth Circuit
Justice Goes Full-Term: Court Reviews Claim of Actual Innocence After Right to Review Was Waived

Areas of Law: Plea agreements, Waiver of federal habeas review

Issue Presented: Whether waiver of the right to federal habeas review bars such review when the basis for relief is claim of actual innocence.

Brief Summary: In a unanimous decision, the United States Court of Appeals for the Fourth Circuit held that waiver will not bar federal habeas review when the petitioner asserts a cognizable claim of actual innocence.

In 2008, Richard Adams pled guilty to robbery, possessing a firearm during a crime of violence, and being a felon in possession of a firearm. Under the terms of the plea agreement, the prosecution dropped several other charges and Adams waived his right to challenge his convictions through federal habeas review. Adams was sentenced to concurrent 120-month sentences for robbery and being a felon in possession. In addition, Adams was sentenced to a consecutive 120 months for possession of a handgun during a crime of violence. His total sentence was thus 240 months. Adams appealed but his sentence and conviction were affirmed by the Fourth Circuit.

In 2012, Adams filed a petition for federal habeas review. Adams' basis for relief was that he was actually innocent of the felon in possession conviction because he was not, in fact, convicted of a prior felony. Adams' claim relied on a prior Fourth Circuit decision, which changed how convictions under North Carolina's Structured Sentencing Act are classified. The court held that felonies are crimes for which a defendant must have actually faced the possibility of more than a year in prison. Hypothetical enhancements can not convert a crime into a felony if that crime is punishable by less than one year in prison. Therefore, argued Adams, because his prior conviction was not a felony as a matter of law, he was actually innocent of being a felon in possession.

The district court dismissed Adams' federal habeas petition. The court found he waived his right to such relief, and alternatively that no actual prejudice was suffered because a ruling in his favor would result in Adams serving the same amount of time.

The Fourth Circuit vacated the district court's decision. First, the court discussed the district court's finding that no actual prejudice was suffered. Although the prosecution abandoned that argument on appeal, the court noted that Adams' appeal is not barred. Convictions carry collateral consequences, therefore even convictions which carry concurrent sentences can be challenged on appeal.

Next, the court held that Adams' waiver was valid because he received the benefit of a colloquy during which he was fully apprised of his rights. Waiver, however, will not bar review if to do so would be a miscarriage of justice. In order to avoid a miscarriage of justice, the court found that Adams' cognizable claim of actual innocence was not waived.

Next, the court addressed the merits of Adams' habeas petition. The court found that Adams was innocent "in fact," not merely innocent by operation of law because Adams was, in fact, not a prior convicted felon. Further, the court found that because Adams' dropped charges were not related to his felon in possession charge, he did not need to prove factual innocence of the dropped charges.

Finally, the court reminded the prosecution that seeking to reinstate the dropped charges in retaliation for Adams' successful appeal would be a violation of Adams' due process rights. Adams is actually innocent of his felon in possession conviction, therefore the court entered judgment in favor of Adams and vacated the district courts' decision.

To read the full text of this opinion, please click here.

Panel: Motz, Floyd, Circuit Judges, and Gibney, sitting by designation

Argument Date: 12/9/2015

Date of Issued Opinion: 2/19/2016

Docket Number: 13-7107

Decided: Vacated by published opinion

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Marianna F. Jackson, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Christopher Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert A. Long, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion:
Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 12:13 PM     4th Circuit     Comments (0)  

  Perdue Foods LLC v. BRF S.A. -- Fourth Circuit
Playing Chicken: Did Foreign Company Purposefully Avail Itself of Privilege of Conducting Business in State, Triggering Court's Jurisdiction?

Issue Presented: Whether the trial court had jurisdiction over a Brazilian chicken distributor whose only tie to the forum state was a business relationship with Perdue.

Brief Summary: Perdue Foods, LLC, sells chickens internationally and domestically under the trademark, Perdue. BRF is a Brazilian chicken producer that sells chicken in Brazil under the mark Perdix. BRF was also seeking to register that trademark in various foreign countries. In order to avoid product and consumer confusion, Perdue and BRF entered into an agreement by which BRF agreed not to pursue the trademark "Perdix" outside of Brazil and Perdue agreed not to pursue registration of "Perdue" in Brazil. Based on this agreement, the two companies began conducting a business relationship by which Perdue bought 700,000 pounds of chicken from BRF between 2012-2014. Pursuant to this contract, Perdue sent purchase orders to BRF in Brazil and BRF sent invoices to Perdue in Maryland. The chicken was shipped exclusively to Tanzania from Brazil.

Despite this business relationship, Perdue alleged that BRF had not honored the trademark agreement and continued to pursue registration of its mark "Perdix" in several foreign countries. As such, Perdue brought suit against BRF in the United States District Court for the District of Maryland. BRF moved to dismiss the action, arguing that the Maryland court had no personal jurisdiction over BRF. The District Court granted the motion, finding Perdue had not alleged sufficient facts to establish the requisite jurisdiction. Perdue appealed.

In examining whether the court had personal jurisdiction, the United States Court of Appeals for the Fourth Circuit first examined what kind of personal jurisdiction was alleged - specific or general. The Fourth Circuit determined that general jurisdiction would not apply as it requires continuous business relationships and contacts with Maryland. The court then examined the inquiry under specific personal jurisdiction - which requires that the defendant purposefully established minimum contacts within the forum state. In this inquiry, the court examined: (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arose out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.

The Fourth Circuit ultimately held there were not sufficient facts under review to establish specific personal jurisdiction over BRF. Relying primarily on the first prong of the analysis, the court determined that BRF did not purposefully avail itself of the laws and privileges of the forum state (Maryland). The court was persuaded by the fact that BRF had no officers or offices in Maryland, never traveled to Maryland, never sent any products to Maryland, and never dealt with any company (other than Perdue) in Maryland. In fact, the only fact the court determined Perdue alleged that showed some connection to Maryland was the Maryland choice of law clause contained in the contract. Despite Perdue's efforts to equate this situation to Burger King, the court was unmoved. Burger King featured a more than twenty-year franchise relationship between the defendant and the forum state, and was thus distinguishable from this case. Unlike the prolonged business interaction between the franchise in Burger King and the forum state, BRF's contact with Maryland featured a very discrete contract between BRF and Perdue. Further, the court found it persuasive that BRF merely sent invoices to Maryland, but never anything further. Ultimately, the Fourth Circuit affirmed the District Court's ruling dismissing the action for lack of personal jurisdiction.

To read the full opinion, click here.

Panel: Judges Motz, Floyd, and Gibney, Jr.

Argument Date: 12/09/2015

Date of Issued Opinion: 02/19/2016

Docket Number: No. 14-2120

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Damon W.D. Wright, VENABLE LLP, Washington, D.C., for Appellant. Jeffrey Eric Ostrow, SIMPSON THACHER & BARTLETT LLP, Palo Alto, California, for Appellee. ON BRIEF: Brandon C. Martin, Palo Alto, California, Lori E. Lesser, SIMPSON THACHER & BARTLETT LLP, New York, New York; Geoffrey H. Genth, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 11:29 AM     4th Circuit     Comments (0)  

  United States ex rel. May & Radcliffe -- Fourth Circuit
Qui Tam Fo Fum: I Smell the Blood of Narrow Construction of the Public Disclosure Bar of the False Claims Act

Issue Presented: Whether a suit brought by one qui tam relator based on information an attorney learned during the prior representation of a different qui tam relator qualified as being "based upon" under the Public Disclosure Bar of the False Claims Act?

Brief Summary: The False Claims Act ("FCA") gives the government the ability to fine individuals and companies who file for government reimbursement using false or fraudulent information. The FCA also allows private litigants to bring an action on behalf of the government. Should such an action prevail, the government will pay the individual a bounty. The public disclosure bar prevents a court from hearing any actions brought by a qui tam relator that are based on publicly disclosed information.

The instant false claims case arises out of litigation that has been before the United States Court of Appeals for the Fourth Circuit before. Approximately ten years ago, Mark Radcliffe (not a litigant in the current case) brought a qui tam action alleging the company he formerly worked for (Purdue Pharmaceuticals) falsely inflated the efficacy of OxyContin to get government reimbursement for a more expensive version of the drug. The court eventually dismissed that case, holding that an agreement Mr. Radcliffe signed as part of his severance barred his qui tam claim. Following that dismissal, his wife, Angela Radcliffe, took on the case as the plaintiff and filed an ultimately fruitless petition for cert.

The current case, filed by both Angela Radcliffe and another former Purdue employee, Steven May, alleges essentially the same claims made in Mr. Radcliffe's original qui tam action. Mrs. Radcliffe and Mr. May also used the same attorney Mr. Radcliffe used in the original action. The District Court ruled that the Public Disclosure Bar ("Bar") of the FCA meant that the court did not have jurisdiction over this claim.

Mr. May and Mrs. Radcliffe claimed that the Bar did not apply because they never reviewed the actual filings in Mr. Radcliffe's case, but instead relied on information that their attorney learned during his representation of Mr. Radcliffe in the prior case. The Fourth Circuit held that though the litigants may not have reviewed the actual filings, using information their attorney developed in the previous action was sufficiently "based upon" publicly disclosed information so as to bar the claim on jurisdictional grounds under the FCA. While noting that most other circuits actually use a substantially related standard - barring any claim that is substantially the same as or related to a publicly disclosed action - the Fourth Circuit determined that the purpose of the bar was to discourage "piggybacking" on information that was generally known to the public.

Panel: Judges Traxler, Diaz, and Agee

Argument Date: 10/29/2015

Date of Issued Opinion: 01/29/2015

Docket Number: No. 14-2299

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Mark Tucker Hurt, THE LAW OFFICES OF MARK T. HURT, Abingdon, Virginia, for Appellant. Daniel Stephen Volchok, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for 2 Appellees. ON BRIEF: Paul W. Roop, II, ROOP LAW OFFICE, LC, Beckley, West Virginia, for Appellant. Howard M. Shapiro, Christopher E. Babbitt, Charles C. Speth, Ariel Hopkins, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 11:20 AM     4th Circuit     Comments (0)  

April 5, 2016
  Matherly v. Andrews -- Fourth Circuit
Forward Looking But Still Applicable: Fourth Circuit Holds Adam Walsh Act Not Impermissibly Retroactive

Areas of Law: Criminal Procedure, Criminal Law, Civil Procedure

Issues Presented: Whether the Adam Walsh Act ("the Act") was properly applied to a prisoner who was convicted of crimes and committed to Bureau of Prisons' ("BOP") custody before the Act became effective. Whether the BOP relinquished its legal authority over the prisoner before the government filed for certification of the prisoner as a "sexually dangerous person" under the Act.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the United States District Court for the Eastern District of North Carolina's ("district court") holding that the Adam Walsh Act was permissibly applied to a prisoner who was convicted and committed to the BOP's custody before the Act became effective. However, the Fourth Circuit reversed and remanded the district court's grant of summary judgment to the government on the issue of whether the BOP relinquished its legal authority over the prisoner before the government filed for certification of the prisoner as a sexually dangerous person.

Extended Summary: The Adam Walsh Act "authorizes the civil commitment of sexually dangerous persons who are in the custody of the BOP." A sexually dangerous person is a person who engaged in or "attempted to engage in sexually violent conduct or child molestation and" who "would have serious difficulty refraining from [such conduct] if released." Following completion of any criminal sentence the government or the BOP can ensure continued civil commitment by certifying to the district court that an individual is a sexually dangerous person. If such certification occurs, the inmate's release is stayed pending a hearing. "If after [the] hearing the district court finds by clear and convincing evidence that the person is" sexually dangerous, the court will commit the person to the Attorney General's custody "until it is determined that the person is no longer sexually dangerous to others."

Thomas Matherly pled guilty to one count of possessing child pornography. Following this conviction, his supervised release in an earlier case involving child sex charges was also revoked. He received a combined sentence in the two cases of 47 months imprisonment plus 3 years of supervised release. With time served and good time credits, Matherly was eligible for release on November 23, 2006. However, because November 23, 2006, was Thanksgiving Day, the BOP intended to release Matherly into supervised release on November 22, 2006. "On that same day, the government certified Matherly as a sexually dangerous person" under the Adam Walsh Act.

As required by the Act, the district court began civil commitment proceedings to determine whether Matherly was in fact sexually dangerous. Matherly conceded that he had previously molested children. He also conceded that he suffered from mental illness. In May 2012, after years of litigation by Matherly and others regarding the constitutionality of the Adam Walsh Act, the district court deemed Matherly to be sexually dangerous as defined by the Act. The court therefore ordered Matherly committed to the Attorney General's custody. In April 2013, Matherly filed a pro se petition for a writ of habeas corpus alleging that "the Act had been impermissibly applied retroactively to him." Matherly also contended he was not in BOP custody "within the meaning of [the Act]" when the government filed its certification. The district court rejected Matherly's claim, and Matherly appealed.

The Fourth Circuit affirmed the district court. The Fourth Circuit found that the Act does not operate retroactively and was therefore not impermissibly applied to Matherly. The Act addresses the potential for future harm posed by sexual predators and is not punishment for past crimes. The court explained that Congress expressed its intent that the Act apply to people "in the BOP's custody who would pose a current threat to the public if released," regardless of when the individual was convicted or was committed to the BOP's custody. Moreover, the court explained that the Act is not impermissibly retroactive as it "does not seek to affix culpability for prior acts" and only uses prior acts "for evidentiary purposes to support a finding of a person's mental abnormality, future dangerousness, or both."

However, the Fourth Circuit reversed the district court's grant of summary judgment to the government and remanded to allow the parties to further develop the record on when the government relinquished its legal authority over Matherly. In the court's view the records Matherly submitted were "insufficient to demonstrate that the BOP relinquished its legal authority over Matherly prior to the government's filing" for his certification as a sexually dangerous person.

To read the full text of this opinion, please click here.

Panel: Chief Judge Traxler, and Circuit Judges Agee and Wynn

Argument Date: 01/28/16

Date of Issued Opinion: 03/16/16

Docket Number: Case No. 14-7691

Decided: Affirmed in part; reversed and remanded in part by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joshua Robbins, Brian Remondino, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Michael Lockridge, BUREAU OF PRISONS, Butner, North Carolina, for Appellee. ON BRIEF: Stephen L. Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Thomas G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/05/2016 08:52 AM     4th Circuit     Comments (0)  

April 4, 2016
  Tyree v. United States -- Fourth Circuit
Pro Se Appellant Prevails: Federal Inmate Granted Opportunity for Discovery Before Court Reviews Merits

Areas of Law: Civil Law (Torts), Civil Procedure

Issue Presented: Whether the district court abused its discretion in entering summary judgment prior to discovery.

Brief Summary: The United States Court of Appeals for the Fourth Circuit ("the court") vacated and remanded the district court's grant of summary judgment to the government because the court had not allowed the parties to engage in the discovery process. The court found that discovery might have created a genuine issue of material fact sufficient to defeat summary judgment.

Extended Summary: Scott Tyree ("Tyree"), a federal prison inmate, filed suit under the Federal Tort Claims Act ("FTCA"), alleging that prison officials failed to protect him from, and failed to respond promptly to, an attack by his cellmate. Based primarily on the Government's affidavits accompanying its motion for summary judgment, the district court ruled that the prison guards responded immediately to the altercation, and granted summary judgment for the Government.

Tyree appealed this determination to the United States Court of Appeals for the Fourth Circuit, contending that the district court abused its discretion in entering summary judgment prior to discovery. Tyree emphasized that there was a dispute over how quickly the prison officials responded and this could have been resolved by video surveillance in the prison and written reports. Additionally, he asserted that prison records might show whether his cellmate had an institutional record indicating he should not have been housed with Tyree. Lastly, Tyree argued that he could have discovered whether the emergency system, including the tone and light, at the prison, was operational. The Fourth Circuit agreed with Tyree and ultimately vacated and remanded the district court's granting of summary judgment to the government, finding that discovery would potentially have created a genuine issue of material fact sufficient to defeat summary judgment.

To read the full opinion, click here.

Panel: Judges Motz, Floyd, and Davis

Argument Date: 02/19/2016

Date of Issued Opinion: 03/23/2016

Docket Number: Case No. 15-7528

Decided: Vacated and remanded by unpublished per curiam opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: Scott Tyree, Appellant Pro Se. Michael Bredenberg, SPECIAL ASSISTANT UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Per Curiam

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2016 02:35 PM     4th Circuit     Comments (0)  

  United States v. Cowley -- Fourth Circuit
Fourth Circuit Says 'No Way' to COA for IPA Appeal

Areas of Law: Criminal Procedure, Criminal Law, Appellate Procedure

Issues Presented: Whether a certificate of appealability is required for the denial of an Innocence Protection Act ("IPA") motion; and whether the district court abused its discretion when denying Cowley's IPA motion for untimeliness.

Brief Summary: In August 2000, Shane Cowley was convicted of crimes stemming from the attempted robbery and murder of Jeff Stone. He was sentenced to 45 years in prison. Both his conviction and sentence were affirmed on appeal. In 2004, Cowley's motion to vacate pursuant to 28 U.S.C. § 2255 was denied by the district court and the United States Court of Appeals for the Fourth Circuit. Also, in 2004, the Innocence Protection Act (IPA) became law allowing "federal prisoners to move for court-ordered DNA testing under certain specified conditions." Cowley's instant appeal centers on the denial of his IPA motion.

Before reviewing the denial of Cowley's IPA motion, the Fourth Circuit considered the government's argument that Cowley's appeal was not properly before the court because the district court denied a Certificate of Appealability (COA) and the Fourth Circuit did not grant one. The government further claimed that a COA was needed because the IPA motion presents itself as a successive habeas petition. The Fourth Circuit, citing both statutes, held that an appeal from the denial of an IPA motion is not subject to the COA requirement. First, the court explained the plain language of the IPA does not contain a COA requirement. Comparatively, the statute for a § 2255 motion expressly requires a COA. Next, the court found the text of the IPA makes clear that it is intended to provide different relief than habeas remedies. Therefore, the Fourth Circuit found that a COA is not needed for an appeal from the denial of an IPA motion.

After deciding that Cowley's appeal was properly before it because he did not need a COA, the Fourth Circuit examined the denial of Cowley's IPA motion for DNA testing for an abuse of discretion. A motion under the IPA must meet ten requirements including timeliness. There is a rebuttable presumption of timeliness on motions, "made within 60 months of enactment of the Justice for All Act of 2004 or within 36 months of conviction, whichever comes later." Cowley's motion was not subject to this rebuttable presumption because his 60-month period expired five years before his motion was filed.

Cowley argued that he could overcome a finding of untimeliness by demonstrating good cause and manifest injustice. First, Cowley stated he had shown "good cause" because he had been incarcerated for eight years between the IPA's passing and filing his motion and as such he had not been able to find an attorney or investigators to work on his case. The Fourth Circuit rejected this argument, explaining that incarceration and the inability to find an investigator are not good causes as all those bringing IPA motions will be incarcerated. The court further explained that ignorance of the law is also not enough for good cause. Next, Cowley argued that the denial of his motion would result in manifest injustice. Considering "all relevant facts and circumstances surrounding the motion," the Fourth Circuit rejected this argument as well.

The Fourth Circuit stated that both Cowley and his attorney were aware of the underlying DNA claims as early as trial but Cowley still waited 8 years to file the IPA motion. The court also pointed out that Cowley was appointed counsel during his § 2255 proceedings. Thus, for some time after the IPA was passed he did have counsel. Moreover, there was a minimal showing that the evidence would have DNA material available for testing and that the results of testing would "raise a reasonable probability" that Cowley didn't commit the crimes. Because Cowley was unable to rebut the presumption of untimeliness by showing good cause and manifest injustice, his motion was untimely. Thus, the Fourth Circuit found that the district court did not abuse its discretion and affirmed its denial of Cowley's IPA motion seeking DNA testing.

To read the full text of this opinion, please click http://www.ca4.uscourts.gov/Op...6067.P.pdf">here. [/L]

Panel: Judges Traxler, Shedd, and Dillon

Argument Date: 12/8/2015

Date of Issued Opinion: 2/29/16

Docket Number: No. 15-6067

Decided: Affirmed by published opinion

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: James Yash Moore, THE LAW OFFICE OF JAMES Y. MOORE, Ludlow, Kentucky, for Appellant. Erik S. Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee

Author of Opinion: Judge Dillon

Case Alert Supervisor: Professor Reneé Hutchins

    Posted By: Renee Hutchins @ 04/04/2016 02:20 PM     4th Circuit     Comments (0)  

March 31, 2016
  Oxygene v. Lynch -- Fourth Circuit
To Stay or Not to Stay: Removal of Haitian Refugee under Convention Against Torture Act Contingent on Showing of Specific Intent to Torture

Areas of Law: Immigration Law

Issue Presented: Whether a Haitian refugee who committed four felonies in the United States should be granted deferral of removal under the Convention Against Torture ("CAT").

Brief Summary: In a published opinion written by Judge Motz, the United States Court of Appeals for the Fourth Circuit ("the court") held that Wilerms Oxygene ("Oxygene") failed to establish that Haitian authorities would detain him (if deported) with the specific intent to inflict torture--a showing required under CAT. As a result, the court denied Oxygene's application for deferral of removal under CAT.

Extended Summary:
In 1994, Oxygene and his family fled political violence in Haiti and were admitted to the United States as refugees. In 2001, five years after he became a Legal Permanent Resident, Oxygene was convicted in a Virginia court of burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security commenced a removal proceeding against him. Shortly thereafter, Oxygene applied for deferral of removal under the Convention Against Torture Act ("CAT"). His application was heard by an Immigration Judge ("IJ").

Relying on U.S. Department of State country reports, the IJ found that "on several occasions police 'allegedly beat or otherwise abused detainees and suspects' and 'corrections officers use[d] physical punishment and psychological abuse to mistreat prisoners.'" The IJ further found that "approximately seventy percent [of prisoners] 'suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illness.'" Notwithstanding these findings, the IJ, relying heavily on In re J-E, 23 I. & N. Dec. 291 (BIA 2002), ultimately denied Oxygene's application. The IJ found that Oxygene had failed to demonstrate it was "more likely than not" that he would suffer torture upon removal to Haiti.

Oxygene timely appealed this denial to the BIA and included new medical evidence regarding his PTSD and depression that he alleged impacted his CAT claim. The BIA affirmed the removal order, indicating that Oxygene failed to show how the new evidence would change the result of the case.

Oxygene appealed to the United States Court of Appeals for the Fourth Circuit. First, the Fourth Circuit explained that it had limited jurisdiction over Oxygene's appeal due to his prior aggravated felony conviction. The sole issue considered by the court on appeal was whether In re J-E states the correct legal standard for intent in CAT claims.

The Fourth Circuit ultimately held that In re J-E's "specific intent" standard for CAT claims is correct and, as a result, denied Oxygene's application for deferral of removal under CAT. In reaching this conclusion, the court first looked to the specific language of the original CAT treaty, which defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The court explained that this is an express understanding of how the United States wished executive and judicial bodies to later interpret this treaty when it was implemented into domestic law. In 1998, Congress enacted the Foreign Affairs Reform and Restructuring Act ("Act") to implement CAT. In that Act, Congress defined torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The Act also said that "in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering." The court emphasized that this statutory language indicated specific intent was meant to be the standard under which CAT is assessed. Lastly, the court turned to In re J-E, explaining that the decision is consistent with the prior legislative history regarding the "specific intent" standard and is almost identical to Oxygene's. As a result, the court stated that In re J-E should be given deference and Oxygene's application for deferral of removal under CAT should be denied because he only offered evidence of general, rather than specific, intent that the Haitian government would torture him upon his deportation to Haiti.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan.

Argument Date:
12/08/2015

Date of Issued Opinion: 02/22/2016

Docket Number: Case No. 14-2380

Decided: Denied in part and dismissed in part by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge, Virginia, for Petitioner. Jeffrey R. Leist, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division; Ernesto H. Molina, Jr., Assistant Director; Gladys M. Steffens Guzman, Trial Attorney, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Motz

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/31/2016 09:21 AM     4th Circuit     Comments (0)  

March 29, 2016
  Ojo v. Lynch -- Fourth Circuit
Board of Immigration Appeals Must Recognize State Adoption Decisions

Areas of Law: Immigration Law, Administrative Law

Issue Presented: Whether the Board of Immigration Appeals must recognize state court orders determining when an individual has been adopted.

Brief Summary: Adebowale O. Ojo, a native of Nigeria and the adopted son of a U.S. citizen ("USC"), petitioned the United States Court of Appeals for the Fourth Circuit for review of a decision by the Board of Immigration Appeals ("BIA") denying Ojo's motion to reopen his removal proceedings. In denying the motion, the BIA relied on its administrative interpretation of INA § 1101(b)(1)(E)(i), relating to the adoption of children by USCs. The Fourth Circuit vacated the BIA decision and remanded for further proceedings because, contrary to what the BIA asserted INA § 1101(b)(1)(E)(i) is not ambiguous and thus does not contain a gap that Congress left for the BIA to fill. Moreover, the BIA's interpretation, which summarily disregards valid state court orders, is contrary to law.

Extended Summary: Ojo was born in Nigeria on August 28, 1983, and lawfully entered the U.S. in August 1989. Two weeks later, when Ojo was six years old, his uncle, a USC, became Ojo's legal guardian. More than ten years later, when Ojo was sixteen years old, Ojo's uncle filed a petition to adopt Ojo. On January 24, 2001, after Ojo turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption. Between 2009 and 2012, Ojo was convicted of two drug-related offenses. The offenses qualify as aggravated felonies under INA § 1101(a)(43)(B). In May 2013, the Department of Homeland Security ("DHS") charged Ojo with removability from the U.S. under INA § 1227(a)(2)(A)(iii) due to his aggravated felonies and the DHS' refusal to recognize his derivation of citizenship.

On May 5, 2014, an immigration judge determined that Ojo was removable from this country by clear and convincing evidence. The judge explained that because Ojo turned sixteen on August 28, 1999, and was not adopted by a USC until he was seventeen years old, he did not qualify as an adopted child under INA § 1101(b)(1)(E). On appeal to the BIA, Ojo advised the BIA that his adoptive father would seek a nunc pro tunc order (a court ruling that applies retroactively to correct an earlier ruling) from the Montgomery County Circuit Court specifying that Ojo's adoption became effective before he turned sixteen years old. The BIA ruled that Ojo was seventeen years old when adopted and did not qualify as an adopted child under INA § 1101(b)(1)(E) for the purposes of derivative citizenship under INA § 1431. In November 2014, Ojo filed a motion to reopen his removal proceedings, supported by a nunc pro tunc order entered on October 29, 2014, by the Montgomery County Circuit Court. That order made Ojo's adoption effective on August 27, 1999, the day before he turned sixteen years old. The BIA denied Ojo's motion to reopen, observing that it did not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both the filing of the adoption petition and decree. This is the BIA's Cariaga/Drigo precedent. On July 8, 2015, as the Fourth Circuit's review was pending, the BIA modified the Cariaga/Drigo precedent in its Matter of Huang decision, 26 I&N Dec. 627 (BIA 2015). In Huang, the BIA stated that it would recognize a nunc pro tunc order relating to an adoption "where the adoption petition was filed before the beneficiary's 16th birthday."

Applying a Chevron analysis, the Fourth Circuit held that the plain meaning of the term "adoption" in the relevant sections of the INA was not ambiguous. Where Congress speaks clearly, the statutory language controls and the BIA is not entitled to deference. The Fourth Circuit found no indication in the text of § 1101(b)(1)(E)(i) that Congress intended to alter or displace the plain meaning of "adopted." Therefore, a child is "adopted" for purposes of § 1101(b)(1)(E)(i) on the date that a state court rules the adoption effective, without regard to the date on which the act of adoption occurred. The federal government has "deferred to state-law policy decisions with respect to domestic relations." United States v. Windsor, 133 S.Ct. 2675, 2691 (2013). Therefore, the date on which an individual has been "adopted" under § 1101(b)(1)(E)(i) will depend on the effective date of the adoption as set forth in the relevant state court instructions. Carachuri-Rosendo v. Holder, 560 U.S. 563, 576-78 (2010) (explaining that federal immigration court must look to state conviction itself to determine whether state offense is "aggravated felony" under the INA).

According to the Fourth Circuit, it was contrary to law for the BIA not to recognize the nunc pro tunc order in Ojo's case. As a result, the BIA abused its discretion in denying Ojo's motion to reopen his removal proceedings.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan

Argument Date: 12/08/2015

Date of Issued Opinion: 02/16/2016

Docket Number: No. 15-1138

Decided: Vacated and remanded by published opinion

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Henry Caleb Griffin, GRIFFIN AND GRIFFIN, Annapolis, Maryland, for Petitioner. Sefanie A. Svoren-Jay, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

Edited: 03/29/2016 at 11:50 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 03/29/2016 09:09 AM     4th Circuit     Comments (0)  

March 7, 2016
  United States v. Berry -- Fourth Circuit
Fourth Circuit Joins Tenth to Announce: No Need for Circumstance-Specific Evaluation when Categorical Evaluation Holds Up

Areas of Law: Criminal Procedure

Issue Presented: Whether the district court erred in using a circumstance-specific approach rather than a categorical approach to conclude that Berry's past convictions justified his Tier III designation.

Brief Summary: Defendant Berry was convicted of a sex offense and, therefore, was required to register under the federal Sex Offender Registration and Notification Act (SORNA). Berry failed to register and pled guilty to a violation of 18 U.S.C. § 2250(a), which is a failure to register statute. At sentencing, the district court calculated Berry's Sentencing Guidelines (Guidelines) range as if Berry were a Tier III sex offender. The United States Court of Appeals for the Fourth Circuit compared Berry's sex offense with what constitutes a Tier III offense and disagreed with the district court, vacating Berry's sentence and remanding the case to the district court to properly determine Berry's tier classification in order to impose a sentence.

Detailed Summary: In 2002, Defendant Brian Keith Berry pled guilty in New Jersey state court to endangering the welfare of a child. Berry was convicted of a sex offense and, therefore, was required to register under SORNA. After release from prison, Berry was told to register with the New Jersey police. He complied with the requirement and provided law enforcement with a New Brunswick address. However, in March 2013, police discovered that Berry no longer resided at the New Brunswick address and subsequently issued a warrant for his arrest for violating the conditions of his parole. Berry was found in North Carolina where he admitted to failing to register. At trial, Berry pled guilty to violating 18 U.S.C. § 2250(a) and the district court found Berry to be a Tier III sex offender with a corresponding base offense level of 16. The district court's finding was based on a description of the conduct underlying Berry's prior sex offense, which was "penetrating the vagina of a five-year-old victim with his hand." The district court found this conduct was comparable to the offense of abusive sexual conduct against a minor who has not yet attained 13 years of age, which falls under the Tier III definition. Based on the analysis and the Tier III designation, the district court sentenced Berry to 33 months in prison and 5 years of supervised release. This timely appeal stems from the district court's sentencing because Berry did not believe he should have been sentenced as a Tier III sex offender.

The Fourth Circuit began its analysis with the requirement for sex offenders to register and the penalties when offenders do not follow through with such requirement. SORNA classifies sex offenders into three tiers based on the sex offender's underlying sex offense. The court then explained that Tier II and Tier III designations are for more serious sex offenses and Tier I is a catch-all provision for all other sex offenses. To determine a defendant's tier classification, courts must compare the defendant's prior sex offense conviction with the offenses listed in the tier definitions. Courts have three analytical frameworks they can use to make this comparison: (1) the categorical approach; (2) the modified categorical approach; and (3) the circumstance-specific approach. The categorical approach focuses solely on the relevant offenses' elements by comparing the elements of the prior offense of conviction with the elements of the federal offense. If the elements of the prior offense are the same as or narrower than the offense listed in the federal statute, there is a categorical match. But, if the elements of the prior conviction sweep more broadly to the point that there is a realistic probability that the statute defining the offense of the prior conviction encompasses conduct outside the offense enumerated in the federal statute, the prior offense is not a match. The modified categorical approach serves as a tool for implementing the categorical approach where the defendant's prior conviction is for violating a statute that sets out one or more elements of the offense in the alternative. This approach allows the court to look through a limited number of documents to determine which alternative formed the basis of the defendant's prior conviction. Once the elements are identified, the court does not look at any other documents and continues with the categorical approach. Finally, the circumstance-specific approach focuses on the circumstances underlying the defendant's prior conviction, not the elements of the offense.

The Fourth Circuit acknowledged that the Tenth Circuit recently considered which approach is best for analyzing the Tier III definition. The Tenth Circuit held that the categorical approach is best and the Fourth Circuit agreed. The Fourth Circuit explained that when a federal statute refers to a generic offense, SORNA's definition demonstrates that Congress' intent is to have the categorical approach apply. On the other hand, when the federal statute refers to specific conduct or factual circumstances, SORNA's definition demonstrates that Congress' intent is to have the circumstance-specific approach apply.

Here, a Tier III sex offender is defined under 42 U.S.C. 16911(4) as "a sex offender whose offense is punishable by imprisonment for more than 1 year and - (A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse or sexual abuse (as describe in sections 2241 and 2242 of this title 18); or (ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years." The Fourth Circuit applied the Tenth Circuit's analysis and explained that a reference to a specific Criminal Code section suggests a generic offense with a straightforward element test, requiring the categorical approach. In the instant case, the references to "aggravated sexual abuse" or "sexual abuse" are examples of straightforward element tests where the categorical approach applies.

However, the court explained when there is a reference to an act that has a number of alternative elements or a reference to a description rather than an element, the courts need to consider the specific circumstances encompassing the criminal conduct because there is not a straightforward element test or analysis to classify the act. For example, here, the statute referring to "more severe than abusive sexual conduct" and "a minor who has not attained the age of 13 years" are examples where the circumstance-specific approach applies.

The Fourth Circuit agreed with the Tenth Circuit and explained that language in 42 U.S.C. 16911(4) instructs courts to apply the categorical approach when comparing prior convictions with the generic offenses listed. However, the Fourth Circuit and the Tenth Circuit, made an exception to this standard when it comes to the specific circumstance of a victim's age. The Fourth Circuit also held that a similar approach should be taken with Tier II designations.

Next, the Fourth Circuit mentioned the Supreme Court's avoidance of the circumstance-specific approach because it leads to various difficulties and requires examining evidence to discover the specific circumstances of past convictions. This re-evaluation of various pieces of evidence may lead to several "mini-trials" and the United States Supreme Court frowns upon this approach. The Fourth Circuit mentioned that evaluating a victim's age is straightforward and requires inquiry into only one fact. Therefore, the Fourth Circuit explained, the categorical approach is the proper approach to review the SORNA Tier III definition and looking into the victim's age would be an exception.

The Fourth Circuit applied its decision to use the categorical approach in considering whether a defendant's prior conviction is a Tier III sex offense under 42 U.S.C. 16911(4)(A) and to look at the specific circumstances for the victim's age to Berry's particular issues. Here, in 2002, Berry violated the New Jersey Statute § 2C:24 - 4(a). At the time of conviction, the statute held "[a]ny person...who engaged in sexual conduct...or who causes the child harm... is guilty of a crime of the third degree." The New Jersey Supreme Court has ruled, in a multitude of cases, that an offender may violate the New Jersey Statute § 2C:24 - 4(a) by both physical and non-physical means such as deprivation of sufficient food or repeatedly appearing nude in front of a window; whereas, a Tier III designation requires a defendant to have engaged in or attempted physical contact with the victim. Therefore, because the New Jersey statute encompasses a much broader interpretation of sexual conduct than the Tier III definition, the Fourth Circuit believed Berry's Tier III designation was improper. The Fourth Circuit vacated Berry's sentenced and remanded the case for the district court to apply the proper tier classification, calculate the corresponding Guideline, and impose a proper sentence.

To read the full text of this opinion, please click here.

Panel: Judges Wilkinson, King, and Wynn

Argument Date: 12/10/2015

Date of Issued Opinion: 02/19/2016

Docket Number: No. 14-4934

Decided: Vacated and remanded by published opinion.

Case Alert Author:
Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Amicus Curiae.

Author of Opinion:
Judge Wynn

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/07/2016 01:01 PM     4th Circuit     Comments (0)  

February 29, 2016
  Grueninger v. Virginia Dep't. of Corrections -- Fourth Circuit
Attorney's Failure to Challenge Uncounseled Confession Justifies Reversal of Sex Abuse Conviction

Areas of Law: Criminal Law, Constitutional Law, Criminal Procedure

Issues Presented: (1) Whether defense counsel's failure to move to suppress client's uncounseled confession constituted ineffective assistance of counsel. (2) If so, whether counsel's ineffectiveness established cause and prejudice excusing Grueninger's procedural default of the claim.

Brief Summary: The Fourth Circuit found that but for counsel's deficient performance in failing to file the suppression motion or objecting to the use of Grueninger's confession during trial, the result of the proceeding would have been different. Therefore, with respect to the convictions on sexual abuse charges, the Fourth Circuit reversed and remanded the district court's dismissal of Grueninger's habeas petition.

Extended Summary:
On March 13, 2009, Virginia police arrested Eric Adam Grueninger for sexually abusing his fourteen-year-old daughter. An officer met with Grueninger in jail and administered Miranda warnings to which Grueninger responded, "These are felonies, I need an attorney." The officer immediately ceased all questions. Later that day, an officer searched Grueninger's home and found thumb drives in Grueninger's top dresser drawer containing pictures and videos of child pornography. Three days later, a new arrest warrant with additional charges was issued, and an officer visited Grueninger again to administer Miranda warnings and ask questions about the new charges. Grueninger admitted to various sexual acts with his daughter in addition to storing and accessing child pornography on his laptop.

A grand jury charged Grueninger with two counts of indecent liberties with a child under the age of fifteen, two counts of aggravated sexual battery by a parent, one count of rape by force or threat, three counts of forcible sodomy, and two counts of sexual object penetration (hereinafter collectively "the sexual abuse charges"). Grueninger was also charged with nine counts of possession and one count of distribution of child pornography (hereinafter "the child pornography charges"). Grueninger's attorney did not file a motion to suppress Grueninger's confession under Edwards v. Arizona, 451 U.S. 477 (1981), in writing before trial as local rules required. Counsel also failed to object to the introduction of the confession at trial. At the close of evidence, the trial court noted the importance of the confession, pointing out how the confession shifted the case to a different perspective. Grueninger was convicted on all counts and sentenced to a total term of 235 years, all but 88 suspended.

Grueninger appealed his convictions, arguing insufficient evidence and ineffective counsel. The Court of Appeals of Virginia affirmed, and the Supreme Court of Virginia denied his request for review. On July 25, 2011, Grueninger filed a pro se petition for writ of habeas corpus in the Hanover Circuit Court before the same judge who presided over his case. The Circuit Court held that Grueninger was not entitled to relief on any of his claims. In particular, the judge dismissed the petition due to procedural default on the substantive Edwards claim and found no prejudice caused by ineffective counsel. The Supreme Court of Virginia agreed. On June 12, 2013, Grueninger filed a federal habeas petition under 28 U.S.C. § 2254 in the Eastern District of Virginia (hereinafter "the district court"), largely alleging the same claims. The district court agreed with the circuit court. Grueninger later appealed to the United States Court of Appeals for the Fourth Circuit (hereinafter "Fourth Circuit"), which granted partial relief.

The Fourth Circuit reviewed the district court's denial of the habeas petition de novo and found its determination objectively unreasonable. As to the Edwards issue, the Fourth Circuit believed Grueninger unambiguously invoked his right to counsel after being given Miranda warnings in jail the first time and was subsequently interrogated by the visiting officer. Grueninger was also able to show ineffective counsel through deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668 (1984). The Fourth Circuit noted that the unfiled suppression motion was substantive and but for counsel's deficient performance in filing the Edwards motion or objecting to the use of Grueninger's confession during trial, the result of the proceeding would have been different. Therefore, with respect to the convictions on the sexual abuse charges, the Fourth Circuit reversed and remanded the district court's dismissal of the habeas petition. The court, however, affirmed the child pornography convictions because the Commonwealth presented overwhelming evidence tying Grueninger to the thumb drive and laptop file containing child pornography with his name on it, and Grueninger could not show a reasonable probability that the confession altered the outcome of the trial as to those charges.

To read the full opinion, click here.

Panel: Judges Motz, Gregory, and Harris

Argument Date: 10/27/2015

Date of Issued Opinion: 02/09/2016

Docket Number: Case No. 14-7072

Decided: Affirmed in part, reversed in part, and remanded by published opinion.

Case Alert Author: Nakisha Small, Univ. of Maryland Carey School of Law

Counsel: Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Appellant. Steven Andrew Witmer, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author of Opinion: Judge Harris

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/29/2016 12:44 PM     4th Circuit     Comments (0)  

February 25, 2016
  Nat'l. Fed. of the Blind v. Lamone -- Fourth Circuit
Absentee Voting For All: Tool To Be Implemented That Will Assist Voters With Disabilities

Areas of Law: Disability Law

Issue Presented: Whether individuals with various disabilities were denied meaningful access to Maryland's absentee voting program in violation of Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act (collectively "the Acts") because the state's absentee voting program requires voters to hand mark their ballots

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit upheld the United States District Court for the District of Maryland's holding that Maryland's absentee voting program which requires voters to mark their ballots by hand, denies individuals with disabilities who cannot hand mark their ballots, meaningful access to absentee voting in violation of the ADA and the Rehabilitation Act

Extended Summary: In Maryland, absentee voters can obtain their absentee ballots by mail, fax or by electronically downloading them. Voters who electronically download their absentee ballots must print out the hardcopy of the ballot, mark their selections by hand, sign the hardcopy and return the completed ballot to their local election board. For years, Maryland has been in the process of developing software, an online ballot marking tool ("the tool") that would allow absentee voters who electronically download their ballots to mark their choices electronically. The tool is compatible with various personal assistive devices that are used by people with various disabilities and would eliminate the need for people who are not able to hand mark their own ballots to find individuals to mark their ballots for them. The tool was used in a limited capacity in Maryland's 2012 primary and general elections. Although improvements continued to be made to the tool, it was not certified for general use by Maryland's State Board of Elections.

In 2014, the National Federation of the Blind and three individual Maryland voters with disabilities ("Plaintiffs") filed suit against the State Administrator of Elections and the five Board members ("Board") in their official capacities. The suit alleged that Maryland's absentee voting program violated the Acts as hand marking a hardcopy of a ballot without the assistance of another individual is impossible for voters who have various disabilities. Therefore, Plaintiffs alleged that the program deprived these individuals of meaningful access to absentee voting. Plaintiffs sought declaratory judgment and an injunction requiring the Board to make the tool available for use in the 2014 general election.

Prior to trial, several similarly situated individuals who were asserting similar claims though seeking an injunction to bar the tool's certification, filed a motion to intervene in the case. The district court permitted the putative intervenors to participate in the trial but denied their motion that would have allowed them to assert independent claims against the Board. In a bench trial, the district court held that because Maryland's absentee voting program did not allow Plaintiffs to mark their ballots without assistance, Plaintiffs had been denied meaningful access to absentee voting in violation of the Acts. The district court entered a permanent injunction prohibiting the Board from violating the Plaintiffs' rights and required the Board to make the tool available for use by the 2014 general election. The Board appealed.

The Fourth Circuit affirmed the district court's finding that the proper way to define the scope of the relevant public program was as Maryland's absentee voting program and not as Maryland's general voting program. The court based this finding on the fact that the Acts prohibit public entities from denying the benefits of public programs based on disability. The court also explained that the Supreme Court has suggested that courts should proceed cautiously when defining a public program as a definition that is too general may overlook the difficulties that people with disabilities may have in terms of accessing specific government services.

The Fourth Circuit also affirmed the district court's three core legal conclusions. The Fourth Circuit upheld the district court's conclusion that Plaintiffs were denied meaningful access to absentee voting by being required to rely on the assistance of others. The court explained that requiring individuals to vote with the assistance of others provides these individuals with a voting experience that is inferior and unequal to that afforded to everyone else. The Fourth Circuit also upheld the district court's conclusion that the tool is a reasonable accommodation that would give individuals with disabilities access to absentee voting. The court explained that the tool is reasonably secure, private, accessible to voters with disabilities and would likely not be a substantial cost or implementation burden as it has already been developed and implemented without apparent incident. The Fourth Circuit also upheld the district court's conclusion that the tool would not fundamentally alter Maryland's absentee voting program as use of the tool is not unreasonably at odds with the state's voting apparatus certification procedure.

The Fourth Circuit concluded its analysis by articulating that there is no evidence that the Board acted with discriminatory intent in implementing its absentee voting program. Moreover, Maryland's decision to allow all of its voters to vote absentee, provides voters with a unique and uncommon benefit.

To read the full text of this opinion, please click here.

Panel: Judges Gregory, Duncan, and Floyd

Argument Date: 10/28/15

Date of Issued Opinion: 02/09/16

Docket Number: Case No. 14-2001

Decided:
Affirmed by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellants. Jessica Paulie Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellees. Thomas Evans Chandler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America. ON BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellants. Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellees. Amy F. Robertson, CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, Denver, Colorado; Alyssa R. Fieo, MARYLAND DISABILITY LAW CENTER, Baltimore, Maryland, for Amici Civil Rights Education and Enforcement Center, Maryland Disability Law Center, ADAPT Maryland, American Civil Liberties Union, Arc Maryland, Arc of the United States, Association of Assistive Technology Act Programs, disAbility Law Center for Virginia, Disability Rights Advocates, Disability Rights Bar Association, Disability Rights Education & Defense Fund, Disability Rights North Carolina, Freedom Center, IMAGE Center for People with Disabilities, Independence Now, Judge 3 David L. Bazelon Center for Mental Health Law, League for People with Disabilities, Maryland Developmental Disabilities Council, Maryland Disabilities Forum, National Association of the Deaf, National Disability Rights Network, On Our Own of Maryland, Paralyzed Veterans of America, People on the Go, Protection and Advocacy for People with Disabilities, Southern Maryland Center for Independent Living, United Spinal Association, and West Virginia Advocates. Vanita Gupta, Principal Deputy Assistant Attorney General, Mark L. Gross, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America.

Author of Opinion:
Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/25/2016 04:23 PM     4th Circuit     Comments (0)  

  Warfaa v. Ali -- Fourth Circuit
Alien Tort Explained: Fourth Circuit Limits International Application of Alien Tort Statute

Areas of Law: Civil Procedure, International Law

Issues Presented: Whether the District Court has subject matter jurisdiction under the Alien Tort Statute or the Torture Victim Protection Act when acts of torture occur outside the United States.

Brief Summary: In the 1980s, Yusuf Ali was part of a military unit in Somalia that kidnapped and tortured Farhan Warfaa. Warfaa sought to bring claims against Ali for these actions. Ali now resides in the United States, while Warfaa still resides in Somalia. In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the District Court for the Eastern District of Virginia did not have subject matter jurisdiction under the Alien Tort Statute to hear Warfaa's claims against Ali because Warfaa's claims do not "touch and concern" the United States. The Fourth Circuit also held that two of Warfaa's claims could move forward under the Torture Victim Protection Act.

Extended Summary:
Throughout the 1980s, Somalia experienced a period of political upheaval. The country was ruled by military dictatorship, and the government persecuted opposition political organizations. Appellant Farhan Warfaa lived in Somalia during that time period and was a member of a clan that opposed the government. Yusuf Ali supported the dictatorship and was the commander of the Fifth Battalion of the Somali National Army.

In December of 1987, soldiers from Ali's unit kidnapped Warfaa from his home and took him to a military base. While in captivity, Warfaa was tortured by Ali and his soldiers, including severe beatings on more than nine occasions. In 1988, as the military regime was collapsing, Ali shot Warfaa in the wrist and leg, and left him for dead. Warfaa was able to bribe one of the remaining guards and escaped. He still lives in Somalia today.

Ali fled Somali in advance of the government's fall, and immigrated to Canada. He was eventually deported from Canada and traveled to the United States, where he was subsequently put in removal proceedings and deported. Ali returned to the United States on a spousal visa in 1996 and was permitted to remain after initially being placed in removal proceedings. He currently resides in the United States.

In 2005, Warfaa filed six claims against Ali in the District Court for the Eastern District of Virginia. Warfaa's claims include (1) attempted extrajudicial killing, (2) torture, (3) cruel, inhumane, or degrading treatment or punishment, (4) arbitrary detention, (5) crimes against humanity, and (6) war crimes. Warfaa alleged that the District Court had jurisdiction over all six claims based on the Alien Tort Statute. Warfaa also maintained the court had jurisdiction over the first two claims under the Torture Victim Protection Act of 1991.

While Warfaa's claims were initially filed in 2005, the District Court stayed the case until 2012 until either party could provide assurance from the U.S. State Department that the case would not interfere with U.S. foreign policy. The State Department ultimately chose not to comment, and the District Court allowed the case to move forward. The court also enforced a stay from 2012 to 2014 pending the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). Once the State Department declined to comment and the Supreme Court addressed the Alien Tort Statute in Kiobel, the District Court allowed Warfaa's case to move forward.

Warfaa claimed the District Court had subject matter jurisdiction over all six claims under the Alien Tort Statute ("ATS"). The ATS is a brief, one-sentence provision passed within the Judiciary Act of 1789, which provides that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." From its passage to 1980, the ATS was essentially never invoked. From 1980 onward, however, several courts interpreted the statute to permit claims of torture committed abroad where all claims involved foreign nations.

In Kiobel, however, the Supreme Court placed limitations on this application of the ATS. The Kiobel Court held that claims involving conduct that occurred in a foreign country are ordinarily not covered by the ATS, and that a "presumption against extraterritorial application" exists when applying the ATS to foreign cases. Kiobel did not categorically prohibit application of the ATS to foreign cases, but rather established a requirement that the actions in question must "touch and concern" the United States with sufficient force to displace the presumption against extraterritorial application.

Based on the Supreme Court's decision in Kiobel, the District Court granted summary judgment for Ali on the Alien Tort Statute claims. However, the District Court did allow Warfaa's first two claims to proceed under the Torture Victim Protection Act, finding that Ali could not claim "official act" immunity because his actions violated jus cogens norms and were so universally against international law that they could not be protected by governmental immunity.

Both parties appealed to the Fourth Circuit. On appeal, the Fourth Circuit upheld the judgment of the District Court and found that Warfaa's ATS claims were properly dismissed, but the two claims under the Torture Victim Protection Act ("TVPA") could go forward.

The Fourth Circuit applied the newly formed Kiobel test to Warfaa's case and found that Ali's actions did not sufficiently touch and concern the United States. While the court acknowledged that Ali did immigrate to the U.S. and has lived here for nearly 20 years, the court did not find sufficient facts to demonstrate a "strong and direct connection" to the United States to overcome the Kiobel presumption. The Fourth Circuit noted that Ali's residence in the United States was mere "happenstance" and did not demonstrate any compelling reason for U.S. courts to exercise jurisdiction over his actions in Somalia.

The court also upheld the District Court's decision to allow the claims under the TVPA to move forward. The court found that Ali's actions violated jus cogens norms, and Ali did not dispute this fact. Instead, Ali sought to have the Fourth Circuit overturn Yousuf v. Samatar, 699 F.3d 763 (4th Cir. 2012), which held that foreign officials cannot claim official act immunity for jus cogens violations. The court declined to overturn this precedent.

Judge Gregory dissented from the majority's opinion with regard to the ATS issue. In his dissent, Judge Gregory wrote that Ali's conduct did in fact "touch and concern" the United States. He noted that Ali is a lawful permanent resident of the U.S., has resided in the U.S. for 20 years, and received specialized military training at U.S. military institutions on three separate occasions, including once after his actions in Somalia against Warfaa. Judge Gregory also argued that the Alien Tort Statute is meant to give individuals a remedy against those living in the U.S. who have committed human rights atrocities.


To read the full text of this opinion, please click here.

Panel: Agee, Diaz, and Gregory (dissenting as to Part III)

Argument Date: 09/16/2015

Date of Issued Opinion: 02/01/2016

Docket Number: 14-1810, 14-1934

Decided: Affirmed by published opinion.

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for Appellant/Cross-Appellee. Tara Melissa Lee, DLA PIPER LLP (US), Reston, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, Mason Hubbard, DLA PIPER LLP (US), Washington, D.C.; Laura Kathleen Roberts, Nushin Sarkarati, Scott A. Gilmore, CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California, for Appellee/Cross-Appellant.

Author of Opinion: Agee, J.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/25/2016 08:37 AM     4th Circuit     Comments (0)  

February 24, 2016
  United States v. Williams et al. -- Fourth Circuit
Stick to the Sentencing Guidelines for Best Chance of Review

Areas of Law: Criminal Procedure

Issues Presented: Whether the district court complied with Federal Rule of Criminal Procedure 11 when accepting the defendants guilty pleas; and whether one of the sentences was reasonable.

Brief Summary: Defendants David James Williams and Kristin Deantanetta Williams each pled guilty to one count of conspiracy to possess and distribute cocaine and cocaine base. Both stipulated to a sentence of 120 months of imprisonment under Federal Rule of Criminal Procedure Rule 11 (c)(1)(c) in their plea agreements. The district court sentenced them accordingly. The defendants appealed their convictions to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit found no error with the convictions and affirmed. Appellant Kristin Williams also challenged her sentence on appeal.

Before accepting a plea, the district court is required to engage in a colloquy with the defendant to make sure the defendant understands the nature of the charges for which the plea is offered, any mandatory minimum and maximum penalties, and the rights the defendant is giving up by pleading guilty. A plea colloquy is reviewed for plain error, as opposed to harmless error, if the defendant does not ask to withdraw her guilty plea in the district court. Applying these rules to the cases before it, the United States Court of Appeals for the Fourth Circuit concluded that the district court complied with Rule 11's requirements and rejected the challenges.

With respect to Kristin Williams sentencing challenges, an appellate court may only review a defendant's sentence if: (1) it was imposed in violation of law; (2) it was imposed as a result of an incorrect application of the sentencing guidelines; (3) it is greater than the sentence specified in the applicable guideline range; or (4) it was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. However, a defendant who is sentenced pursuant to a stipulated plea agreement cannot appeal under (3) or (4) above unless the sentence imposed is greater than the sentence in the agreement.

In the instant case, the 120-month sentence Kristin Williams received was exactly what she stipulated to in the plea agreement. Therefore, the sentence did not run afoul of appellate review options (1), (3), or (4), described above. The only option the Fourth Circuit had for reviewing Williams' sentence was if her sentence had been imposed as a result of an incorrect application of the sentencing guidelines.

In previous opinions the Fourth Circuit has suggested that a sentence imposed pursuant to a Rule 11(c)(1)(c) plea agreement is not imposed as a result of an incorrect application of the Sentencing Guidelines because it is based on the parties' agreement--not on the district court's calculation of the Guidelines. Other circuits treat sentences imposed pursuant to Rule 11(c)(1)(c) differently. The court looked to the Supreme Court case Freeman v. United States to clarify its position. In Freeman, the Supreme Court held that a sentence imposed pursuant to a Rule 11(c)(1)(c) plea agreement is generally based on the agreement and not the Sentencing Guidelines. An exception exists where the "...agreement uses a Guideline sentencing range applicable to the charged offense to establish the term of imprisonment." Thus the Fourth Circuit clarified that a sentence imposed pursuant to a Rule 11(c)(1)(c) plea agreement may be reviewed only if the "agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment."

This clarification of the rule allows appeals of sentences that are imposed as a result of incorrect application of the Sentencing Guidelines. It also will allow review of some stipulated plea sentences. Appellant Kristin Williams, however, was not helped by the clarified rule because her plea agreement did not use the Sentencing Guidelines to calculate her sentence. Her sentence was not imposed as a result of an incorrect application of the Sentencing Guidelines and the Fourth Circuit could not review the reasonableness of the sentence. Therefore, the Fourth Circuit dismissed Williams' appeal of her sentence.

Panel: Judges Wilkinson, Shedd, and Wynn

Argument Date: 10/29/2015

Date of Issued Opinion: 1/28/2016

Docket Number: No. 14-4680, No. 14-4689

Decided: Affirmed in part, dismissed in part by published opinion.

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: Melvin Wayne Cockrell, III, THE COCKRELL LAW FIRM, PC, Chesterfield, South Carolina; Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South Carolina, for Appellants. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Author of Opinion: Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/24/2016 11:22 AM     4th Circuit     Comments (0)  

  United States v. Ramirez-Alaniz -- Fourth Circuit
Foreign Nationals Held in U.S. Indefinitely Under Civil Commitment

Areas of Law: Immigration Law

Issue Presented: Whether an undocumented person can be held in civil commitment if a district court finds that release creates a substantial risk of bodily injury to another person or serious damage to property.

Brief Summary: Ramirez-Alaniz entered the United States without inspection. In January 2011, Ramirez-Alaniz was sentenced to 30 months imprisonment after pleading guilty to criminal charges against him. After serving his sentence he was deported to Mexico. Two weeks later, he was detained by Customs and Border Patrol ("CPB") agents in Arizona and charged with illegal reentry following deportation. While under CPB detention, Ramirez-Alaniz "exhibited poor institutional adjustment, sexually inappropriate behavior, and noncompliance with the administration of medication." Due to this behavior the district court ordered that Ramirez-Alaniz undergo a dangerousness evaluation under 18 U.S.C. §§ 4246 and 4248. Ramirez-Alaniz was thereafter transferred to Federal Medical Center ("FMC") Butner. Mental health evaluators at FMC Butner found Ramirez-Alaniz incapable of proceeding with his criminal case and that his competency would not be restored in the near future.

The district court then conducted a commitment hearing. A psychiatrist and a psychologist testified that Ramirez-Alaniz responded well to medication and would not be a risk to the community so long as he was medicated. They also testified that there would be no way to ensure continued medication if Ramirez-Alaniz were released. The district court ordered Ramirez-Alaniz committed under § 4246, "given his psychotic disorder and cognitive defects." The district court in Arizona, following the commitment hearing, dismissed the criminal charges against him. On appeal, Ramirez-Alaniz contends that § 4246 is not applicable to his case since, upon release, he would be deported to Mexico, and § 4246 applies only to persons and property in the United States.

According to the United States Court of Appeals for the Fourth Circuit, Ramirez-Alaniz' argument "overlooks the fact that if released, Ramirez-Alaniz would...be released into the United States" as there is not currently a criminal action against him nor an action by the Department of Justice to commence removal proceedings in immigration court. Therefore, because he would be released into the United States, the district court's finding that he would pose a risk to persons or property in the U.S. in violation of § 4246 will stand. The court did not reach the extraterritorial argument raised by Ramirez-Alaniz. Ramirez-Alaniz also argued that American taxpayers should not be forced to cover the expense for foreign nationals, but the Fourth Circuit dismissed the claim as pure "speculation and hyperbole."

To read the full opinion, click here.

Panel: Judges Niemeyer, Duncan, Agee.

Argument Date: 12/09/2015

Date of Issued Opinion: 01/26/2016

Docket Number: No. 15-6003

Decided: Affirmed by unpublished opinion.

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Dodson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Jennifer F. Dannels, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Judge Niemeyer

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/24/2016 11:05 AM     4th Circuit     Comments (0)  

February 23, 2016
  Colon Health Centers of America, LLC v. Hazel -- Fourth Circuit
The Long CON and the Dormant Commerce Clause

Areas of Law: Constitutional Law, Health Law

Issue Presented: Does Virginia's Certificate of Need Program unconstitutionally violate the Dormant Commerce Clause by either a) discriminating against interstate commerce in both purpose and effect or b) by placing an undue burden on interstate commerce?

Brief Summary: Virginia's Certificate of Need (hereinafter "CON") program does not unconstitutionally discriminate against interstate commerce in violation of the Dormant Commerce Clause or place an undue burden on interstate commerce. Appellants Colon Health Centers and Progressive Radiology argue that the primary goal of the CON requirement is discriminatory in purpose and effect. The United States Court of Appeals for the Fourth Circuit (hereinafter "the court" or "the Fourth Circuit") rejected both of these arguments, pointing to the array of legitimate purposes the CON program serves, as well as the lack of appreciable difference in the approval/rejection rate for in-state and out-of-state applicants. Finally, the court engaged in Pike's balancing test and determined there is no undue burden on interstate commerce, as the appellants' asserted arguments do not outweigh the purpose of the CON program.

Extended Summary: Appellants, Colon Health Centers and Progressive Radiology, are out-of-state medical imaging service providers who applied for a certificate of need to operate in Virginia. The Virginia CON Program governs establishment and expansion of certain medical facilities inside the state and requires applicants to prove that there is public need for their proposed medical venture to prevent redundant accretion of medical facilities, protect the economic viability of existing providers, promote indigent care, and assist cost-effective health care spending.

When appellants' CON applications were rejected, they challenged the constitutionality of the program, claiming that it violates the Dormant Commerce Clause, and the Fourteenth Amendment's Equal Protection, Due Process, and Privileges and Immunities Clauses. The United States District Court for the Eastern District of Virginia dismissed the suit for failure to state a claim upon which relief could be granted. The Fourth Circuit affirmed the dismissal of the Fourteenth Amendment claims on appeal, but reversed and remanded the Commerce Clause issue for further factual development. The district court ultimately granted summary judgment in favor of the Commonwealth. Appellants urged the Fourth Circuit to reverse the decision, arguing that the CON program unconstitutionally violates the Dormant Commerce Clause by either a) discriminating against interstate commerce in both purpose and effect or b) placing and undue burden on interstate commerce.

While the Commerce Clause grants Congress the power to regulate commerce among the states, implicit in that grant is Congress' dormant ability to limit the power of a state to erect barriers against interstate trade by discriminating against and burdening out-of-state competitors. A state discriminates against interstate commerce in three ways: facially, in practical effect, and in its purpose. The parties agreed there was no facial discrimination in this case. The appellants instead argued the CON program discriminated in purpose because the goal of the program is to shelter in-state providers from competition at the expense of out-of-state businesses seeking entry into the market. The Fourth Circuit rejected this argument because CON programs serve an array of legitimate purposes. Alternatively, appellants argued that the CON program was discriminatory in effect because the different stages of approval in the process enabled local firms to thwart and stymie the applications of out-of-state firms. The court rejected this argument as well because the Commonwealth's expert pointed out that in 2014 both the application process and its results showed no appreciable difference in the treatment of in-state and out-of-state medical firms in Virginia.

Finally, the court engaged in Pike's balancing test to determine whether Virginia's CON program places an undue burden on interstate commerce. The Pike balancing test weighs the putative local benefits against incidental burdens on interstate commerce under a rational basis standard of review. The court rejected appellants' arguments that the CON program creates anticompetitive risks and is unsuccessful at containing healthcare costs, finding instead that Virginia had weighty interests in taking regulatory steps to counter perceived gaps and inefficiencies in the healthcare market. While the court noted that appellants' arguments were reasonable, it concluded the Virginia General Assembly would be a more appropriate forum for airing them.

To read the full opinion, click here.

Panel: Wilkinson, King, and Wynn, Circuit Judges

Argument Date: December 10, 2015

Date of Issued Opinion: January 21, 2016

Docket Number: Case No. 14-2283

Decided: Affirmed by published opinion

Case Alert Author: Nakisha Small, Univ. of Maryland Carey School of Law

Counsel: Darpana Sheth, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Robert J. McNamara, William H. Mellor, Mahesha P. Subbaraman, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Mark R. Herring, Attorney General, Cynthia V. Bailey, Deputy Attorney General, Christy W. Monolo, Assistant Attorney General, Carly L. Rush, Assistant Attorney General, Farnaz F. Thompson, Assistant Attorney General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. Milad Emam, WILEY REIN LLP, Washington, D.C., for Amici Shenandoah Independent Practice Association and Shenandoah Surgeons LLC. Jared M. Bona, Aaron R. Gott, BONA LAW P.C., La Jolla, California, for Amici Scholars of Economics and Scholars of Law and Economics. Robert W. Ferguson, Attorney General, Alan D. Copsey, Deputy Solicitor General, Richard A. McCartan, Senior Counsel, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON, Olympia, Washington; Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona; Douglas S. Chin, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF HAWAII, Honolulu, Hawaii; Jim Hood, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSISSIPPI, Jackson, Mississippi; William H. Sorrell, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier, Vermont, for Amici States of Washington, Arizona, Hawaii, Mississippi and Vermont. James J. O'Keeffe, IV, JOHNSON, ROSEN & O'KEEFFE, LLC, Roanoke, Virginia; Jamie Baskerville Martin, Jeremy A. Ball, Jennifer L. Ligon, MCCANDLISH HOLTON, Richmond, Virginia, for Amici Virginia Hospital & Healthcare Association and Virginia Health Care Association.

Author of Opinion: Judge Wilkinson

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 07:26 PM     4th Circuit     Comments (0)  

  Askew v. HRFC, LLC -- Fourth Circuit
1000% Interest Rate Listed in Your Loan Agreement? No Problem! - Fourth Circuit Says No Violation As Long As Creditor Charges Less than Statutory Maximum

Areas of Law: Consumer Protection

Issues Presented: Whether the lower court erred in holding that Hampton Roads Finance Company was not liable for (1) violating the Maryland Credit Grantor Closed End Provisions, (2) breach of contract, and (3) violating the Maryland Consumer Debt Collection Act.

Brief Summary: The Fourth Circuit affirmed the district court's order granting Hampton Roads Finance Company (HRFC) summary judgment on the Maryland Credit Grantor Closed End Provisions (CLEC) and breach of contract claims, but reversed and remanded the district court's order granting HRFC summary judgment on the Maryland Consumer Debt Collection Act (MCDCA) claim.

Detailed Summary: Dante Askew entered into a retail installment sales contract with a car dealership to finance Askew's purchase of a used car in 2008. Eventually, the car dealership transferred the contract to HRFC. The contract charged a 26.99% interest rate, which was over the CLEC maximum interest rate of 24%. HRFC realized the error in August 2010, and within a month sent a letter notifying Askew that the applied interest rate was an error and that HRFC had credited Askew's account $845.40. Subsequently, Askew fell behind on his payments and HRFC took action to collect on his account. HRFC contacted Askew five times between July 2011 and December 2012, and Askew alleged that HRFC threatened him in order to induce payment of the debt. In a law suit challenging HRFC's conduct, Askew specifically alleged that HRFC threatened that (1) it would report him to authorities for fraud, (2) a replevin warrant had been prepared, and (3) his current complaint in this case had been dismissed. HRFC moved for summary judgment, which the district court granted on all three of the claims. The United States Court of Appeals for the Fourth Circuit reviewed each claim independently and ruled on each.

The Fourth Circuit explained that under CLEC provisions creditors in Maryland may choose to make a loan governed under the CLEC if the creditor provides written notice. If CLEC applies, §12-1003(a) sets a maximum interest rate of 24% and requires that "[t]he rate of interest chargeable on a loan must be expressed in the agreement as a simple interest rate or rates." CLEC § 12-1018(a)(2) states that a violating creditor may collect on the principal of the loan, and not any other charges. Additionally, CLEC § 12-1018(b) states that a creditor who knowingly violates CLEC must forfeit to the debtor 3 times the amount of interest, fees, and other charges that were collected in excess. Although CLEC provides ample protection for the unknowing lender, CLEC also includes two safe-harbor provisions, one of which is crucial to the instant case. CLEC § 12-1020 allows a creditor to avoid liability "if, within 60 days after discovering an error and prior to institution of an action under [CLEC] or the receipt of written notice from the borrower, the credit grantor notifies the borrower of the error and makes whatever adjustments are necessary to correct the error." CLEC § 12-1020.

First, Askew claimed that under CLEC § 12-1003(a) HRFC needed to expressly provide in the contract that the interest rate was less than 24% and the number itself must be written on the contract. However, the Fourth Circuit interpreted CLEC § 12-1003(a) to require only that creditors charge less than a 24% interest rate and provide text that explains the interest rate is a simple interest rate. The Fourth Circuit found that even if an agreement states a 1000% interest rate, if in actuality the creditor charges the debtor less than 24% there is not a viable reason to impose liability on that creditor because a debtor "would be pleased to pay a rate 976 percentage points lower than what they agreed to in a contract."

Second, Askew argued that the safe harbor provision ought to begin at the time he entered the contract with HRFC, which would mean the discovery of the error was well past the 60-day period provided to fix the error. The Fourth Circuit delved into the meaning of "discovery" of an error and concluded that the phrase meant when the Defendant actually knew about a mistake. In the instant case, therefore, the 60-day period began to run from the point where HRFC actually knew about charging an interest rate above CLEC's maximum limit.

Askew next argued that HRFC's notice was cryptic and vague because the September 2010 letter did not explicitly identify the CLEC violation and HRFC's cure did not cover the amount CLEC mandates. The Fourth Circuit disagreed and explained the letter was sufficient and HRFC properly re-credited Askew the excess interest rate that amounted to $845.40.

Askew also argued that HRFC violated the MCDCA provisions, and the district court improperly granted HRFC summary judgment without Askew having an opportunity for proper discovery regarding the claim. The Fourth Circuit found that MCDCA § 14-202(6) provides a debtor protection from a debt collector who contacts the debtor in frequency, at unusual hours, or other manners that can be seen as abuse or harassment. Askew identified three particular circumstances in which he alleged HRFC violated MCDCA. The Fourth Circuit agreed with Askew and explained there is a line between truthful or future threats of legal action and false representations that legal action has already been taken against a debtor. Here, the Fourth Circuit ruled that HRFC had informed Askew that it had already taken legal action when in fact it had not. The Fourth Circuit also explained that a reasonable jury could find HRFC liable under MCDCA for abuse or harassment and therefore reversed the district court's order granting summary judgment to HRFC on the MCDCA claim.

Finally, the Fourth Circuit affirmed the district court's grant of summary judgment to HRFC on the breach of contract claim.

To read the full text of this opinion, please click here.

For further information regarding filing a MCDCA claim, please click here.

Panel: Judges Wynn, Diaz, and Davis

Argument Date: 09/15/2015

Date of Issued Opinion: 01/11/2016

Docket Number: No. 14-1384

Decided: Affirmed in part, reversed in part, and remanded by published opinion

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: Cory Lev Zajdel, Z LAW, LLC, Reisterstown, Maryland for Appellant. Kelly Marie Lippincott, CARR MALONEY P.C., Washington, D.C., for Appellee.

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 06:54 PM     4th Circuit     Comments (0)  

  Aikens v. Ingram et al. -- Fourth Circuit
Rights Without Remedies: Suit For Damages For Alleged Constitutional Violations Found Nonjusticiable

Areas of Law: Federal Jurisdiction, Justiciability, Enforcement Act of 1871

Issue Presented: Whether a member of the North Carolina National Guard can sue other members of the North Carolina National Guard in federal court for alleged constitutional rights violations that occurred while the service member was deployed on active duty.

Brief Summary: The United States Court of Appeals for the Fourth Circuit found that a section 1983 civil action for damages initiated by one service member against another for alleged constitutional violations that occurred while the service member was deployed on active duty is not justiciable in federal court.

Extended Summary: In 2003, Aikens, a member of the North Carolina National Guard ("NCNG"), was deployed on active duty to Kuwait. While there, his emails were illegally intercepted by other service members and relayed to NCNG executive officer von Jess, appellee. Von Jess, who was not deployed at the time, referenced the emails in a memorandum addressed to the North Carolina Governor's chief of staff and forwarded the emails to the Department of the Army Inspector General ("DAIG"). The DAIG concluded that, although the emails were obtained improperly, the information within the emails constituted instances of active duty misconduct, which ultimately lead to Aikens losing his federal recognition and his termination from the NCNG.

In 2006, Aikens sued both Ingram and von Jess under 42 U.S.C. section 1983 for an alleged violation of his Fourth Amendment rights. Aikens claimed that Ingram and von Jess encouraged the unconstitutional search and seizure of his emails while he was deployed in Kuwait. At trial, the district court found Aikens' claims nonjusticiable using a four-factor test described in Mindes v. Seaman and granted summary judgment for Ingram and von Jess. The Fourth Circuit affirmed the district court's decision, although under the "incident to service" test in Feres v. United States. The court declined to apply Mindes because, according to the court, Mindes applies to actions seeking equitable relief, not actions seeking damages.

By applying Feres, the Fourth Circuit joined nine other circuits in concluding that the "incident to service" test articulated in that case may bar section 1983 actions. The court explained that, although the Supreme Court has not yet applied Feres to section 1983 actions, the Court has used the "incident to service" test to bar Bivens claims between military personnel. Both Bivens claims and section 1983 claims allege constitutional violations. Also, relief under either claim would interfere with military discipline and decision-making. Citing those similarities, the court extended Feres and found that it may bar section 1983 actions.

Applying Feres, the court found that the alleged Fourth Amendment violation arose out of activity that was incident to service. Recognizing that the test is broad and amorphous, the court explained that because Aikens was deployed on active duty in a war zone and using a military computer to send his emails, the alleged violation was incident to his service in the military. In reaching its conclusion, the court was undeterred by the fact that Aikens was a member of the NCNG and neither in Ingram nor von Jess' chain of command.

Although he fully agreed with the majority opinion, Judge Shedd wrote separately to explain that Aikens' claim was insufficient on other grounds. Aikens failed to present evidence that either Ingram or von Jess were personally involved in the email monitoring. Aikens' case, therefore, was premised on conclusory allegations and summary judgment was proper as a matter of law.

To read the full text of this opinion, please click here.

Panel: Judges Thacker, King, and Shedd

Argument Date: 12/9/2015

Date of Issued Opinion: 01/29/2016; amended on 02/1/2016

Docket Number: 14-2419

Decided: Affirmed by published opinion

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: ARGUED: William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Gerald Kevin Robbins, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: William Woodward Webb, Jr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Author of Opinion: Judge Thacker

Concurring Opinion:
Judge Shedd

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 06:36 PM     4th Circuit     Comments (0)  

  Central Radio Company, Inc. v. City of Norfolk -- Fourth Circuit
Where There's a Sign, There's a Way: Company to Obtain Nominal Damages from City Due to Unconstitutional Sign Code

Areas of Law: Zoning law

Issue Presented: Whether a former sign code in Norfolk, Virginia, was a content-neutral restriction on speech reviewed under intermediate scrutiny or a content-based restriction subject to strict scrutiny.

Brief Summary: In a published opinion written by Judge Keenan, the United States Court of Appeals for the Fourth Circuit ("the court") held that the former sign code in Norfolk, Virginia, was a content-based restriction subject to strict scrutiny. Further, the court found that the sign code did not meet strict scrutiny because aesthetics and traffic safety are not compelling government interests. Thus, the former sign code was held unconstitutional under the First Amendment and the case was remanded to the district court for a determination of nominal damages.

Extended Summary: In Norfolk, Virginia, a former sign code applied to "any sign within the city which is visible from any street, sidewalk or public or private common open space." The term "sign" excluded any "flag or emblem of any nation, organization of nations, state, city, or any religious organizations," or any "works of art which in no way identify or specifically relate to a product or service." The sign code also implemented sizing restrictions, requiring that temporary signs be no more than 60 feet, and freestanding signs be no more than 75 feet. The city also required citizens to apply for a sign certificate prior to putting up a sign so the city could ensure their sign was in compliance with the sign code prior to display.

There arose an eminent domain dispute between Central Radio Company, Inc. ("Central Radio"), the Plaintiffs in this case, and Norfolk Redevelopment and Housing Authority ("NRHA"). The NRHA was trying to take property from Central Radio to transfer to Old Dominion University. NRHA was unsuccessful in court and subsequently appealed.

While this matter was on appeal, Central Radio put up a sign without applying for a sign certificate that was noncompliant with the sign code. The sign was a 375 square foot banner that had an American flag, Central Radio's logo, and a red circle with a slash across the words "eminent domain abuse." The sign further stated:

"50 years on this street; 78 years in Norfolk; 100 workers; threatened by eminent domain!"

An employee of Old Dominion University observed this sign and complained to a city official. Thereafter, the city's zoning enforcement staff got involved and informed Central Radio that its banner violated the sign code and that it should either take the sign down or adjust it. Central Radio never changed their banner after this warning so the City subsequently issued them citations for displaying an oversized sign and for failing to obtain a sign certificate before installing the sign.

Central Radio filed a civil action to enjoin the city from enforcing the sign code and made three allegations: (1) the sign code was unconstitutional because it subjected Central Radio's display to size and location restrictions but exempted certain "flags or emblems" and "works of art" from any similar limitations and thus, the code constituted content-based restriction that failed to satisfy strict, and even intermediate, scrutiny; (2) the sign code's requirement that citizens obtain a sign certificate prior to putting the sign up is an impermissible prior restraint on speech; and (3) the city selectively applied the sign code to Central Radio in a discriminatory manner.

The district court granted summary judgment to the City, explaining that the sign code was content neutral and thus should be evaluated using intermediate scrutiny. The district court further explained that the sign code was a constitutional exercise of the city's regulatory authority because it was reasonably related to the city's interests in promoting traffic safety and aesthetics. The United States Court of Appeals for the Fourth Circuit initially affirmed this holding, explaining that it was consistent with prior Fourth Circuit precedent. Central Radio then sought review in the United States Supreme Court. On review, the Supreme Court vacated the Fourth Circuit's opinion and remanded the case for reconsideration in light of the Supreme Court's 2015 case Reed v. Town of Gilbert.

On remand, the Fourth Circuit recognized that Reed was a complete departure from prior Fourth Circuit precedent. Using Reed as guidance, the court applied the Reed test to determine whether the former sign code was content-neutral or content-based. The Reed test specifies that "government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Using this test, the Fourth Circuit found the Norfolk sign code applied to particular speech because it exempted government, religious flags, emblems and certain works of art from its prohibition, while disallowing other flags. Because the former sign code is a content-based restriction, strict scrutiny applies and the government must show that the regulation furthered a compelling interest and was narrowly tailored to achieve that interest.

The court held that the government failed to meet strict scrutiny because aesthetics and travel safety are not compelling interests. Moreover, even if the government did meet strict scrutiny, the restriction was not narrowly tailored, but instead was under-inclusive. The court emphasized that the flag of an organization is no greater an eyesore than the flag of a government or religion. Moreover, the city failed to explain how limiting the size of the sign would eliminate threats to traffic safety. As a result, the former sign code was held unconstitutional under the First Amendment. The case was remanded to the district court for a determination of nominal damages to Central Radio.

To read the full opinion, click here.

Panel: Judges Gregory, Agee, and Keenan.

Argument Date: 09/17/2014

Date of Issued Opinion:
01/29/2016

Docket Number: Case No. 13-1997

Decided: Dismissed in part, affirmed in part, reversed in part, and remanded by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Michael Eugene Bindas, INSTITUTE FOR JUSTICE, Bellevue, Washington, for Appellants/Cross-Appellees. Adam Daniel Melita, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross- Appellant. ON BRIEF: Robert P. Frommer, Erica Smith, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants/Cross- Appellees. Melvin W. Ringer, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-Appellant.

Author of Opinion: Judge Keenan

Dissenting Opinion: None

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 12:58 PM     4th Circuit     Comments (0)  

  United States v. Moore and United States v. Latham -- Fourth Circuit
"Let's Kill My Wife:" Ex-husband and Mistress Convicted in Murder-For-Hire Plot

Areas of Law: Criminal Procedure; Constitutional Law; Evidence

Issue Presented: Whether the district court constructively amended the indictment through erroneous jury instructions in violation of the Fifth Amendment and improperly admitted hearsay and character evidence.

Brief Summary: Mr. Latham, a banking executive, divorced his wife. Latham was dating his assistant at the bank, Ms. Moore. Latham and Moore hired two ex-cons, Mr. Wilkinson and Mr. Yenawine to murder Latham's ex-wife. Both Latham and Moore were convicted in district court. Latham was sentenced to 120 months and Moore received 180 months incarceration. At issue here were the following charges for Latham and Moore: (Count 1) conspiracy to travel in interstate commerce "with the intent that a murder be committed for compensation;" and (Count 3) unlawful and wilful travel in interstate commerce "'with intent that a murder be committed' for compensation," both in violation of 18 USC § 1958(a).

Latham and Moore argued the trial judge improperly amended the indictment during jury instructions by making references to interstate commerce "facilities" on multiple occasions. Applying the fatal variance test, the United States Court of Appeals for the Fourth Circuit Court held the district court did not constructively amend the indictment in violation of the Fifth Amendment.

The key question in a fatal variance analysis is whether "a defendant has been tried on charges other than those listed in the indictment." United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994). The Fourth Circuit held that the district court's two references to the "use of facilities" did not constitute a constructive amendment because the bulk of the jury instructions properly tracked the indictment and omitted any mention of the use prong. The court also noted the parties' arguments focused solely on the travel prong.

In addition to the fatal variance claim, Latham and Moore also argued that (1) the district court improperly admitted out-of-court statements made by Yenawine to his ex-cellmate; and (2) the district court erroneously admitted "character evidence" as to Moore. The Fourth Circuit held the statements made by Yenawine to his ex-cellmate were properly admitted under Federal Rule of Evidence 804 in the discretion of the district court. As the to the admission of "character evidence," the Fourth Circuit held that none of the testimony was admitted in error.

Thus, the Fourth Circuit affirmed the district court's findings.

To read the full opinion, click here.

Panel: Chief Judge Traxler, and Judges Motz and Harris.

Argument Date: 12/10/2015

Date of Issued Opinion: 01/20/2016

Docket Number: No. 14-4645

Decided: Affirmed by published opinion.

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville, South Carolina; James Arthur Brown, Jr., LAW OFFICES OF JIM BROWN, PA, Beaufort, South Carolina for Appellants. Rhett DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, Nathan S. Williams, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 12:52 PM     4th Circuit     Comments (0)  

February 22, 2016
  Bauer v. Lynch -- Fourth Circuit
So Close Yet So Far: One Failed Push Up Has Potential to Change FBI's Fitness Test

Areas of Law: Employment Discrimination, Civil Action

Issue Presented: Whether the gender-normalized requirements of the FBI's physical fitness test is discriminatory?

Brief Summary: In a published opinion before Judges King and Harris, as well as specially designated United States District Judge Hazel for the District of Maryland, the United States Court of Appeals for the Fourth Circuit ("the court") found the district court did not apply the proper legal rule to determine whether the FBI's physical fitness test is discriminatory. The panel of judges vacated the district court's decision and remanded, stipulating that the question to consider on remand is whether the gender-normalized requirements of the physical fitness test treat men in a different manner than women.

Extended Summary:
In 2008, Jay Bauer applied to the FBI. After satisfying background checks, he was able to gain admission to the academy. In order to become an official FBI agent, however, Jay was subject to a 22-week program in Quantico, Virginia, which consisted of four main components, one being physical fitness. The FBI's physical fitness test, which is also referred to as the PFT, was developed by the FBI in 2003 because unfit trainees were getting injured and impeding the recruitment process. The FBI resolved this issue by making trainees pass the PFT twice, once to gain admission to the academy and again to graduate from the academy.

The FBI had a thorough development process for the PFT. It conducted two pilot studies to make sure the PFT was gender neutral. Several statistical analyses were conducted and the FBI determined that there were differences in physical capabilities between the equally fit sexes, so women should be required to pass lower PFT requirements in each of the four categories. After these collective considerations, the final test became the following: Sit-ups: 38 for men, 35 for women; 300-meter sprint: 52.4 seconds men, 64.9 seconds women; Push-ups: 30 men, 14 women; and 1.5 mile run: 12 min. 42 seconds men, 13 min. 59 seconds women.

Jay Bauer was able to successfully complete the PFT to gain admission to the academy. However, he failed to complete the PFT for graduation. More specifically, Jay was able to pass all portions of the PFT other than the push-up requirement. After five failed attempts at the PFT, the last of which he failed by a single push-up, Bauer was forced to resign. The FBI did give him a choice of how he would like to leave: (1) resign with the possibility of future employment; (2) resign permanently; or (3) be fired. Bauer chose the first option and just two weeks later was offered an FBI position as an Intelligence Analyst in Chicago, which he accepted.

On April 2, 2012, Bauer filed a Title VII action against the Attorney General claiming the gender-normed standards of the PFT were facially discriminatory under two Title VII provisions: (1) 42 U.S.C. 2000e-16(a) (prohibits sex discrimination by federal employers); and (2) 42 U.S.C. 2000e-2(1) (prohibits the use of different cutoff scores on employment tests on the basis of sex). This action was ultimately in front of the Eastern District of Virginia. Both parties filed cross-motions for summary judgment and Bauer prevailed. The district court agreed that the PFT was facially discriminatory because if Bauer was a woman, he would have completed the lesser amount of push-ups and passed the test.

The attorney general appealed this decision to the United States Court of Appeals for the Fourth Circuit, arguing that the district court applied an incorrect legal rule when it assessed the FBI's gender-normalized test standards. More specifically, the attorney general argued that the PFT is not facially discriminatory because it took into account the physiological differences that lead to different performance outcomes in men and women and that the gender-normed standards require the same level of fitness for all trainees. As a result, the attorney general argued that the test does not treat the sexes differently and, therefore, does not violate the two Title VII provisions in question.

This court agreed with the attorney general's contention about the difference in physiology of men and women and that the lower court applied the wrong standard. The court explained that "accommodations addressing physiological differences between the sexes are not necessarily unlawful" and that "equally fit men and women demonstrate their fitness differently." As a result, the court vacated and remanded the district court's decision and articulated that the question to be considered on remand is whether the gender-normalized requirements of the physical fitness test treat men in a different manner than women.

To read the full opinion, click here.

Panel: Judges King, Harris, and Hazel

Argument Date: 09/15/2015

Date of Issued Opinion: 01/11/2016

Docket Number: Case No. 14-2323

Decided: Vacated and remanded by published opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Michelle Reese Andrew, ANDREW LAW GROUP LLC, Wilmette, Illinois, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Paul K. Vickrey, NIRO, HALLER & NIRO, Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge King

Dissenting Opinion:
None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/22/2016 03:46 PM     4th Circuit     Comments (0)  

  United States v. Vinson -- Fourth Circuit
Domestic Violence Requires Intent: A Misdemeanor Crime of Domestic Violence Cannot Be Committed Through Negligent or Reckless Conduct

Areas of Law: Criminal Law

Issue Presented: Whether a conviction for assault in North Carolina under Gen. Stat. § 14-33 qualifies as a "misdemeanor crime of domestic violence (MCDV)" for the purpose of charging an individual under 18 U.S.C. § 922(g), which prohibits individuals convicted of a MCDV from owning a firearm.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held on rehearing that Rodney Marshall Vinson could not properly be charged with a violation of 18 U.S.C. § 922(g) because his North Carolina conviction for assault did not qualify as a "misdemeanor crime of domestic violence (MCDV)." Because a MCDV must involve the "use or attempted use of physical force," the Fourth Circuit found that a MCDV must involve intentional action. Because at least one interpretation of the North Carolina statute under which Vinson was convicted could result in a conviction based on negligent or reckless conduct without intent, the Fourth Circuit vacated its initial ruling and affirmed the lower court's dismissal of Vinson's indictment.

Extended Summary: Rodney Marshall Vinson was arrested and charged with possession of a firearm by a prohibited person under 18 U.S.C. § 922(g). Because Vinson had been convicted previously of assault in North Carolina, upon his arrest and based on the circumstances of that assault, the government alleged he was prohibited from owning a firearm because his prior assault conviction was a "misdemeanor crime of domestic violence (MCDV)." Vinson was convicted under North Carolina Gen. Stat. § 14-33, which requires that an individual commit an assault "upon a female person by a male person who is at least 18 years old." A misdemeanor crime of domestic violence by definition must have "the use or attempted use of physical force."

The United States District Court for the Eastern District of North Carolina analyzed whether North Carolina Gen. Stat. § 14-33 should be examined using the categorical approach or the modified categorical approach. The section under which Vinson was convicted states that the act may be an "assault, assault and battery, or affray." The categorical approach would treat each of these as different methods of committing the same crime, while the modified categorical approach would treat each as a distinct crime. The district court utilized the categorical approach and found that the "physical force" requirement of 18 U.S.C. § 921(a) meant "violent force." The district court noted that physical force or violent force was not an element of assault as defined by § 14-33. Because the definition of an MCDV was not met in Vinson's case, the district court dismissed the indictment.

The Fourth Circuit initially reversed after the United States Supreme Court's 2014 decision in United States v. Castleman (134 S.Ct. 1405). That decision broadened the definition of physical force and clarified that it was not necessary for "violent force" be present for a state conviction to qualify under the federal law. Vinson petitioned for rehearing on new grounds, arguing that intent was inherent in an MCDV and the North Carolina statute did not always require intent. The Fourth Circuit granted rehearing and permitted Vinson to raise the new issue of law for the first time on appeal.

In this rehearing, the Fourth Circuit considered Leocal v. Ashcroft (543 U.S. 1), a 2004 Supreme Court case that interpreted the "crime of violence" portion of 18 U.S.C. § 16. Specifically, the Court in Leocal looked at the word "use" in that statute and held that "use" in that context involved the intentional availment of force and not any sort of accidental or negligent conduct. The Fourth Circuit reasoned that because this language is largely identical to the language of 18 U.S.C. § 922(g), the logic in Leocal is applicable to Vinson's case.

Based on this, the Fourth Circuit held that it was irrelevant whether the categorical or modified categorical approach was applicable. While North Carolina case law establishes that a defendant must act intentionally to be guilty of assault, that intent can be established by a showing of "culpable negligence." The court found that because North Carolina case law defines culpable negligence to involve "thoughtless disregard," North Carolina Gen. Stat. § 14-33 is not a statute that requires an affirmative "use" of force in every potential conviction. Because each form of assault allows for this conviction absent intentional force, even under the modified categorical approach Vinson's conviction could not qualify as a MCDV.

As a result, the Fourth Circuit reversed its initial holding and upheld the district court's decision to dismiss Vinson's indictment.

To read the full text of this opinion, please click here.

Panel: Traxler, C.J., Gregory, and Agee

Argument Date: 01/27/2015

Date of Issued Opinion: 11/03/15

Docket Number: Case No. 14-4078

Decided: Vacated on rehearing and upheld district court's dismissal of indictment

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Robert Earl Waters, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

Author of Opinion: Traxler, C.J.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/22/2016 02:12 PM     4th Circuit     Comments (0)  

February 8, 2016
  Hall v. Greystar Management Services, L.P., et al. -- Fourth Circuit
Versailles Is Not Your Palace: Conversion Claim Survives After Apartment Complex Destroys 15,000 Pounds of Ex-Tenant's Belongings

Areas of Law: Civil Procedure

Issue Presented: Whether the district court abused its discretion when it dismissed Hall's complaint and denied her motions to reconsider and amend.

Brief Summary: Hall was notified by Greystar Management Services, the owner of her apartment complex, that she could no longer use a storage unit to store items for her service dog because the items created a fire code violation. She also eventually learned that her lease would not be renewed. Hall was subsequently evicted. Hall filed suit against Greystar Management, PSN Landscaping and Lieutenant Richard Kelly but the district court granted the defendants' motion to dismiss. Hall then filed a motion to amend her complaint. This was also denied. She then appealed to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit found that the district court did not abuse its discretion when it denied Hall's amended retaliation claim but the district court did abuse its discretion when it denied Hall's amended conversion claim.

Extended Summary:
Hall and her service dog lived in the Versailles apartments in Towson, Maryland from 2005 until 2011. During this time Hall used a storage unit to store things for her service dog. In 2009, Greystar Management Services (GMS) acquired Versailles and in August 2010, GMS told Hall her use of the storage unit created a fire code violation. Hall then asked for a three-bedroom apartment so she would have space to keep her dog's things.

While Hall was waiting on the requested three-bedroom, in December 2010, GMS removed Hall's property from the storage unit and placed it in dumpsters. GMS also informed Hall that her lease would not be renewed. She was instructed to vacate her apartment by April 30, 2011. In February 2011, Hall filed complaints with the Department of Housing and Urban Development (HUD), the U.S. Department of Justice, and the Maryland Commission on Civil Rights. After the complaints were filed, GMS told Hall there were no three-bedroom units available. After the April 30, 2011 deadline, Hall continued to rent her apartment on a month-to-month basis while looking for a new apartment.

GMS won a tenant holding over action against Hall and obtained an eviction order in Baltimore County District Court. On November 10, 2011, Hall's appeal was denied so she filed for a stay of enforcement pending a review of the decision by another judge. In the meantime, the movers Hall had hired told her they would not be able to move her things until December. Hall paid the rent for December 2011 and GMS accepted the payment. On or about November 30, 2011, the Circuit Court for Baltimore County denied Hall's motion for stay of enforcement. The next day, GMS had workers remove approximately 15,000 pounds of Hall's belongings. Some of the items were taken to a landfill.

In November 2013, Hall filed suit against GMS, the PSN Landscaping workers who removed her belongings, and Baltimore County Sheriff Lieutenant Richard Kelly, who supervised the eviction. The district court granted the defendants' motions to dismiss. In July 2014, Hall filed motions to alter or amend judgment and for leave to file an amended complaint. The motions were denied by the district court and the amended complaint was found to be "futile on all counts." Specifically, Hall's amended complaint failed to allege a causal connection between the protected activity (filing discrimination complaints) and the adverse action. The court found the amended complaint also failed to allege discriminatory intent. The district court also dismissed Hall's amended conversion claim as futile finding that it failed to "include a plausible claim for damages" and failed to identify the damages for the property removed prior to eviction. Hall appealed this decision.

First, the United States Court of Appeals for the Fourth Circuit found that the district court did not abuse its discretion in denying Hall's motion to amend her retaliation claim. For a retaliation claim, Hall needed to establish that 1) she was engaged in protected activity, 2) GMS was aware of that activity, 3) GMS took adverse action against her, and 4) a causal connection existed between the protected activity and the asserted adverse action. The Fourth Circuit found that Hall satisfied three of these prongs (she was engaged in a protected activity, GMS was aware of that activity, and GMS "acted with malice" when disposing of Hall's property). However, Hall's amended complaint failed to show that GMS took action because of her protected activity; there was no causal connection. Instead the complaint left open for speculation the cause for GMS's decision to destroy her property. Hall's complaint asked the court to infer retaliation, in response to Hall filing the complaints, as the cause for GMS's decision to destroy her property. The court could not infer retaliation from the destruction of the property in the storage unit because it occurred before Hall's protected activity. The court was also unable to infer retaliation from the destruction of the property removed from her apartment because there was a ten-month lapse between Hall's protected activity (filing the HUD complaint in February 2011) and GMS's adverse action (destroying her property from the apartment in December 2011).

Next, the Fourth Circuit considered the district court's denial of Hall's motion to amend the conversion claim. The Fourth Circuit found the issue identified by the district court--that Hall pleaded the same amount of damages in her original and amended complaint despite the court's finding that some property was abandoned--raised an issue of fact on the question of damages. This issue of fact could not be resolved on a motion to dismiss. The Fourth Circuit then examined whether Hall's complaint contained sufficient facts to state a claim of conversion against each defendant. Hall alleged that PSN, directed by GMS's attorney, removed file boxes from in and around Hall's vehicle, her housekeeper's vehicle and her attorney's vehicle. This property was placed on PSN's trucks and taken to a landfill where it was destroyed. The Fourth Circuit found that these facts "nudge Hall's conversion claim against GMS and PSN across the line from conceivable to plausible." The court thus found that the district court did abuse its discretion in denying the motion to amend the conversion claim against GMS and PSN. However, nothing in Hall's complaint alleged that Lieutenant Richard Kelly exerted ownership over her property so she failed to state a claim against Kelly. Hall's final claim was not considered because she failed to raise the issue in the lower court.

To read the full text of this opinion, please click here.

Panel: Judges Motz, Gregory, and Harris

Argument Date: 10/27/15

Date of Issued Opinion: 01/21/16

Docket Number: No. 14-2145

Decided: Affirmed in part, reversed in part, and remanded by unpublished opinion.

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Leslie Robert Stellman, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellant. Michael William Skojec, BALLARD SPAHR LLP, Baltimore, Maryland; Andrew Martin Battista, ANDREW M. BATTISTA, P.A., Towson, Maryland; Michele J. McDonald, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Adam E. Konstas, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellant. Michelle M. McGeogh, BALLARD SPAHR LLP, Baltimore, Maryland, for Appellee Greystar Management Services, L.P. Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee Richard Kelly.

Author of Opinion: Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/08/2016 10:42 AM     4th Circuit     Comments (0)  

January 28, 2016
  The Estate of Ronald Armstrong v. Village of Pinehurst -- Fourth Circuit
Tread Carefully with Taser: Court Limits Officers' Use of Tasers in Non-Violent Situations

Areas of Law: Civil Rights, Criminal Procedure

Issues Presented: Whether Pinehurst police officers used excessive force in their encounter with Ronald Armstrong, and if so, whether their actions are protected by qualified immunity.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that Pinehurst officers were protected by qualified immunity for their actions that led to the death of Ronald Armstrong. While the court did hold that the officers used excessive force when they "tased" Armstrong five times and pushed him to the ground, the Court found that the right to not be "subjected to tasing while offering stationary and non-violent resistance" was not sufficiently settled at the time such that every reasonable officer would have understood the right to exist. Because the right was not settled at the time, the Fourth Circuit upheld the District Court's grant of summary judgment for the officers.

Extended Summary: Ronald H. Armstrong suffered from paranoid schizophrenia and bipolar disorder. On April 23, 2011, Armstrong stopped taking his prescribed medication and began harming himself. Fearing for his safety, Armstrong's sister convinced Armstrong to check in to a local hospital. Armstrong eventually left the hospital and the examining doctor issued an involuntary commitment order, deeming Armstrong "mentally ill and dangerous to self" but not dangerous to others, on the commitment form.

Pinehurst police officers Gatling, McDonald, and Sheppard responded to the scene and found Armstrong wandering in an intersection near the hospital. The officers, along with two hospital security guards and Armstrong's sister, convinced Armstrong to leave the roadway and engaged him in conversation until the commitment order was finalized. Under North Carolina law, the officers were required to wait until the commitment order was finalized before taking action. Once the order was completed, the officers advanced on Armstrong and he wrapped his arms and legs around a nearby stop sign post. Officers attempted to pull Mr. Armstrong off the post for approximately 30 seconds, but were unsuccessful.

After this initial attempt, the officers began to utilize other methods to remove Mr. Armstrong from the pole. Officer Gatling utilized his taser - set to "drive stun mode" - five times "over a period of approximately two minutes." Drive stun mode is designed to be "used as a pain compliance tool" and not one that overrides the central nervous system. The tasing was unsuccessful and actually increased Armstrong's resistance, so all five officers pulled Armstrong off the post. Officers subdued Armstrong "by placing a knee on his back and standing on his back," and handcuffed both his arms and legs.

When officers began to collect Mr. Armstrong to return him to the hospital, his sister observed that he had become unresponsive. The officers turned Armstrong over and, saw that his "skin had turned a bluish color and he did not appear to be breathing." Officers radioed for Emergency Medical Services personnel and Armstrong was taken to the hospital's emergency department, but he was pronounced dead shortly after arriving at the hospital. Approximately 6 1/2 minutes passed between the finalization of Armstrong's commitment papers and the call for Emergency Services.

Armstrong's estate filed a complaint against each officer in the Superior Court of Moore County, North Carolina, alleging excessive force in violation of Armstrong's Fourth and Fourteenth Amendment rights. The officers removed the case to the United States District Court for the Middle District of North Carolina. The District Court subsequently held that the officers' use of force was reasonable and granted summary judgment for the officers on those grounds.

Armstrong's estate appealed to the Fourth Circuit, alleging that the officers used excessive force and were not protected by qualified immunity. The Fourth Circuit reversed the District Court on the issue of excessive force and held that the officers' use of force was not reasonable under the totality of the circumstances. However, the court upheld the grant of summary judgment on the grounds of qualified immunity, holding that Armstrong's right not to be tased in those circumstances was not sufficiently established at the time of his death.

The Fourth Circuit considered three factors in weighing the use of force; the factors were listed in Graham v. Connor, 490 U.S. 386, 396 (1989). Those factors were (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting or attempting to evade arrest by flight. The court concluded that these factors, specifically the second and third factors, permitted a limited use of force because of Armstrong's erratic behavior and potential danger to himself, but the level of force used was not objectively reasonable and thus violated Armstrong's Fourth Amendment rights. The court specifically pointed to the use of a taser in a situation that "does not raise a risk of immediate danger" as justification for concluding the officers used unreasonable force.

Nonetheless, the court ultimately upheld the District Court's grant of summary judgment. While the District Court held the officers did not use excessive force, the Forth Circuit concluded that the officers were protected by qualified immunity. In making that decision, the Fourth Circuit considered whether (1) the officers violated Armstrong's constitutional protections, and (2) if so, whether the violated protections were "clearly established" and "within the knowledge of a reasonable person." The court defined the precise right at issue in Armstrong's case to be "Armstrong's right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure."

The Fourth Circuit noted that "substantial case law indicated that [the officers] were treading close to the constitutional line." However, the court drew a distinction between existing case law on non-violent resistance and Mr. Armstrong's case, noting that "[it] would not necessarily have been clear to every reasonable officer that [cases which prohibit using force without first warning an individual who was non-compliant] applied to force inflicted after warning an individual exhibiting non-violent resistance to desist and discontinued before that individual was secured." Because the court found sufficient ambivalence in case law for how to respond to non-violent resistance from a mentally ill patient, the court held that Armstrong's right was not sufficiently established such to deprive the officers of qualified immunity.

Even with this holding, the Fourth Circuit sought to provide clarity in similar situations going forward. The court conducted a lengthy discussion on the use of tasers in varying circumstances, and ultimately concluded that a taser is analogous to a gun or baton and thus "may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser." The court concluded by noting that the officers in Armstrong's case would no longer be protected by qualified immunity if they or other officers use a taser in similar circumstances in the future.

Judge Wilkinson wrote a concurring opinion that joined the decision of the majority but differed in its underlying logic. Judge Wilkinson noted he was "happy" to join the majority in its judgment because the officers' conduct in causing the death of Mr. Armstrong was not the kind "that merited an award of monetary judgment." Judge Wilkinson criticized the majority for "opin[ing] on the merits of the excessive force claim" because the majority's standard "will be of less than limited help to officers wondering what exactly they may and may not do." Ultimately, the judge concluded that Armstrong did in fact pose some danger to himself and others, as shown by the possibility that he could have "bolt[ed] into the street" and caused a fatal accident. He ultimately wrote that the District Court was correct in granting summary judgment on the grounds that the officers did not use excessive force.

To read the full text of this opinion, please click here.

Panel: Thaker, Keenan, and Wilkinson (concurring)

Argument Date: 10/28/2015

Date of Issued Opinion: 01/11/2016

Docket Number: 15-1191

Decided: Affirmed by published opinion.

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Karonnie R. Truzy, CRUMLEY ROBERTS, LLP, Greensboro, North Carolina, for Appellant. Dan McCord Hartzog, CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: David J. Ventura, CRUMLEY ROBERTS, LLP, Charlotte, North Carolina, for Appellant. Dan M. Hartzog, Jr., CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina; Michael J. Newman, VAN CAMP, MEACHAM & NEWMAN PLLC, Pinehurst, North Carolina, for Appellees.

    Posted By: Renee Hutchins @ 01/28/2016 04:07 PM     4th Circuit     Comments (0)  

December 10, 2015
  United States v. Newman -- Fourth Circuit
K-Kutta Must Hit Pause on Rick Ross Label Deal While Serving Ten-Year Prison Term After Fourth Circuit Finds No Reversible Error

Areas of Law: Criminal Procedure

Issues Presented: Whether the district court erred in denying Kenneth Dewitt Newman's motion to withdraw an initial plea. Whether the judgment contained a clerical error. Whether incorrect grand jury testimony prejudiced Newman.

Brief Summary: Kenneth Dewitt Newman, also known as K-Kutta, appealed his convictions and sentences pursuant to two guilty pleas. The Government set aside his first guilty plea because of Newman's failure to cooperate. No longer restrained by the first guilty plea, the Government acquired a second indictment against Newman. In order to persuade the Government to dismiss the charges in the second indictment, Newman pled guilty to another charge. On appeal, Newman alleged that (1) the district court erred in denying his motion to withdraw his first guilty plea, (2) following his second guilty plea, the court's judgment contained a clerical error, and (3) incorrect grand jury testimony prejudiced him.

Regarding Newman's assertion that he should have been permitted to withdraw his first guilty plea, the Fourth Circuit explained the need to follow Federal Rule of Criminal Procedure 11(d). Rule 11(d) states that after a district court accepts a guilty plea but before sentencing, a defendant may withdraw his guilty plea if he can show a fair and just reason for requesting withdrawal. Rule 11(d) places the burden on the defendant to demonstrate that withdrawal should be granted. The Fourth Circuit echoed United States v. Moore and enumerated a non-exhaustive list of factors which provide guidance in determining whether a defendant has met his burden: "(1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether the defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether withdrawal will inconvenience the court and waste judicial resources." 931 F.2d 245, 248 (4th Cir. 1991).

In this instance, the Fourth Circuit determined that Newman failed to establish his plea was unknowing and involuntary under Moore's first factor; he did not pursue a claim that he was innocent under Moore's second factor; and he did not pursue a claim that counsel was ineffective under Moore's fourth factor. Instead, Newman made bare assertions of fair and just reasons to withdraw his plea but failed to provide any evidence to support his assertions. For example, Newman asserted that he did not understand his obligations under the plea agreement required him to provide information about people other than himself who might be involved in criminal activity. He also maintained that he was unaware he could not dispute the drug weight allegations after the lab reported new evidence. Nevertheless, the Government asserted it set aside the first plea agreement based on Newman's refusal to provide any further cooperation. The Fourth Circuit found the district court did not abuse its discretion in granting the Government's motion to set aside the agreement and denying Newman's motion to withdraw his plea because Newman did not dispute the lack of cooperation claim.

Regarding the clerical error, a discrepancy existed between the judgment, which indicated distribution of drugs, and the indictment, which charged possession with intent to distribute the same drugs. Newman and the Government agreed that Newman possessed all the drugs and had intent to distribute only cocaine, but the Government claimed Newman failed to establish any prejudice because of this discrepancy. The Fourth Circuit ruled that judicial economy weighed in favor of remand for correction of judgment to conform to Newman's plea.

Regarding prejudiced grand jury testimony, the Fourth Circuit emphasized that after a defendant admits guilt of the offense in open court, he cannot then raise independent claims relating to the deprivation of constitutional rights that happened prior to the guilty plea entry. In this instance, the alleged error took place prior to both of Newman's pleas and the error concerned a dismissed count. Therefore, the Fourth Circuit affirmed the district court's decision.

To read the full text of this opinion, please click here.

Panel: Judges Duncan, Diaz, and Floyd

Argument Date: 09/29/2015

Date of Issued Opinion: 10/28/2015

Docket Number: No. 15-4100

Decided:
Affirmed and remanded by unpublished Opinion.

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: John R. McGhee, Jr., KAY CASTO & CHANEY, PLLC, Charleston, West Virginia, for Appellant. R. Booth Goodwin, II, United States Attorney, R. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/10/2015 01:31 PM     4th Circuit     Comments (0)  

December 3, 2015
  United States v. Palomino-Coronado -- Fourth Circuit
After Defendant Has Sex with Minor Is One Picture Enough to Prove Intent Under §2251(a)?

Areas of Law: Criminal Law

Issues Presented: Whether there was sufficient evidence to convict Anthony Palomino-Coronado under §2251(a); and whether the district court improperly denied Palomino-Coronado's motion for judgment of acquittal under Federal Rule of Civil Procedure ("FRCP") 29.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit ("the court") held that the facts presented did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture. The court stated, "all the record shows is that [Palomino-Coronado] had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his [cellphone] in his basement; and that one sexually explicit picture was taken." Finally, the court attempted to narrow its holding by stating that a situation can present itself where "only one photograph was taken but where there was other evidence of purpose, and we do not hold that a sufficiency challenge would necessarily fall in that instance." However, the court felt that was not the case here, and as a result, reversed and vacated.

Extended Summary: On May 3, 2012, Prince George's County police officers responded to a home in Laurel, Maryland based on a report of a missing seven-year-old child, B.H. Officers found B.H. at the fence that separated her house and her neighbor's house. Her neighbor was Anthony Palomino-Coronado, a nineteen-year-old male. Police officers took B.H. to the hospital and a sexual assault exam was performed. The exam found there had been vaginal penetration and that B.H. had a vaginal infection, most likely the result of continued sexual activity. The nurse at the hospital interviewed B.H. and she told the nurse that she had been at Palomino-Coronado's house the night before, and that she had been there at least 10 times previously.

The detective for the case reported that in an unrecorded interview with B.H. and her caregiver, B.H. said that while at Palomino-Coronado's house he kissed her and they had sex. Detectives got a search warrant and seized Palomino-Coronado's cell phone, where they found a deleted picture of a man penetrating a female child. On May 15, 2012, an FBI child forensic specialist interviewed B.H. During this interview B.H identified the people in the picture recovered from Palomino-Coronado's phone as "B," referring to her, and "A," referring to Palomino-Coronado.

At trial, B.H. testified that Palomino-Coronado had touched her private parts on more than one occasion and also testified that she was scared during her initial interview with the detective because the detective told her that she wouldn't get to go home if she didn't say that she and Palomino-Coronado had had sex. However, B.H. again identified the people in the picture recovered from Palomino-Coronado's phone as "B.H." and "Anthony." The FBI child forensic specialist testified that, in her professional opinion, the interview that the detective conducted with B.H. was coercive and did not follow protocol. However, the specialist also testified about her own interview with B.H., in which B.H. identified the picture and also said that she and Palomino-Coronado had engaged in sexual conduct. After the state presented its case, Palomino-Coronado made a motion for judgment of acquittal based on insufficient evidence pursuant to FRCP 29. The motion was denied and Palomino-Coronado was convicted of knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct, in violation of 18 USC §2251(a). He was sentenced to 30 years imprisonment.

The United States Court of Appeals for the Fourth Circuit reviewed the case de novo. The court noted that evidence sufficient to sustain the conviction is "evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A defendant bringing a sufficiency challenge "must overcome a heavy burden," (United States v. Hotye, 51 F.3d 1239, 1245 (4th Cir. 1995)), and reversal for insufficiency must "be confined to cases where the prosecution's failure is clear." Burks v. United States, 437 U.S. 1, 17(1978). This was an issue of first impression for the Fourth Circuit, as it had not previously considered a challenge to the sufficiency of the evidence in a conviction under §2251(a).

Palomino-Coronado contended that the government failed to prove one of the elements of a § 2251(a) charge - specifically that he acted for the purpose of producing a visual depiction. Citing the First, Third and Eleventh Circuits, the Fourth Circuit found that § 2251(a) contains a specific intent element. In other words, under the statute, the government is required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct. (United States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012)). The government cannot just say "the photo speaks for itself." (United States v. Crandon, 173 F.3d 122, 129 (3rd Cir. 1999)).

Applying the law to the facts of this case, the court held that the evidence at trial did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. for the purpose of producing a picture. The government did not offer direct evidence or statements indicating intent and there was no testimony that Palomino-Coronado gave any instruction or direction to B.H. as part o their sexual encounter that would indicate purpose. The court stated, "all the record shows is that [Palomino-Coronado] had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his [cellphone] in his basement; and that one sexually explicit picture was taken." These facts, according to the court, did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture, and "to hold otherwise would eliminate the specific intent requirement under § 2251(a) into a strict liability offense."

Finally, the court attempted to narrow its holding by stating that a situation can present itself where "only one photograph was taken but where there was other evidence of purpose, and we do not hold that a sufficiency challenge would necessarily fall in that instance." However, the court felt that was not the case here, and as a result, reversed and vacated.

To read the full opinion, click here.

Panel: Judges Motz, King, and Gregory.

Argument Date: 09/17/2015

Date of Issued Opinion: 11/5/2015

Docket Number: No. 14-4416

Decided: Reversed and vacated by published opinion.

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Kristi Noel O'Malley, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. On brief: James Wyda, Federal Public Defender, OFFICE OF THE PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 03:55 PM     4th Circuit     Comments (0)  

  Watkins v. Rubenstein, et al. -- Fourth Circuit
Habeas Relief Reversed After Court Finds No Brady Violation

Areas of Law: Criminal Procedure; Habeas

Issue Presented: Whether the district court assumed new facts and failed to give due deference to the state court's findings of fact when it ruled that the prosecutor committed a Brady violation which warranted a grant of habeas relief.

Brief Summary: In a split decision, the United States Court of Appeals for the Fourth Circuit reversed the district court's grant of a writ of habeas corpus to Steven Watkins. The petition for a writ of habeas corpus was before the district court after Watkins was denied relief in West Virginia state court. The Fourth Circuit reversed, finding the district court improperly found new facts and did not give adequate deference to the state court's rulings.

Extended Summary: In 2007, Steven Watkins was convicted of attempted robbery in the second degree and received a sentence of five to eighteen years. Whether the victim was placed in fear at the time of the attempted robbery, a required element of the offense was hotly contested at trial. Watkins claimed that after the trial concluded the prosecutor told Watkin's trial counsel the victim was not in fear at the time of the attempted robbery. Watkins brought a petition for writ of habeas corpus at the state court level claiming the prosecutor knew the victim was not afraid at the time of trial and this violated Brady v. Maryland. The prosecutor admitted to having at least two conversations with the victim regarding the fear element and what the prosecution needed to prove to sustain a conviction. The prosecutor, however, denied the victim claimed to have never been afraid. Instead, the prosecutor suggested the victim had some hesitation about admitting fear of another man.

In order to grant habeas relief based on a Brady violation, the defense must show the prosecution had information that was favorable to the defense prior to trial; that this information was material to the defense; and was requested prior to trial.
The state court concluded that Watkins' trial attorney was told after the trial that the victim was not afraid during the attempted robbery. The state court also found the prosecutor and victim discussed the fear element but that there was no impropriety and thus no Brady violation. The state court denied Watkins' petition.

When Watkins filed his petition in the District court, the court granted the petition finding that the State admitted the victim stated he was not afraid. The District court deemed the State to have been in possession of Brady material.

The Fourth Circuit reversed finding the District Court assumed facts when it reached its conclusion. The Fourth Circuit found the record showed the prosecutor made a post-trial statement to Watkins' attorney that the victim may not have been afraid, but this could not be imputed to mean that the prosecutor had knowledge of the fact prior to trial. Moreover, the court held that the conversations which did take place were "no more than routine trial preparation."

In a concurring opinion, Chief Judge Traxler criticized the evidence presented by Watkins. The Chief Judge underscored that the only witness presented by Watkins was his original trial counsel, whose recollection of the conversation which took place with the prosecutor was vague. Watkins failed to call either the victim or the prosecutor. The Chief Judge accused Watkins of misrepresenting the strength of this testimony to the District Court.

In a dissenting opinion, Judge Motz wrote that the District Court correctly concluded that the state court unreasonably applied Brady v. Maryland to the facts at hand. Judge Motz believed that the state court's opinion found that the prosecution had knowledge of the lack of fear of the victim prior to trial. Moreover, Judge Motz wrote that the only possible conclusion to draw from the state court's findings was that the prosecutor was the individual to tell Watkins' trial attorney about the statement. Judge Motz criticized the state for its failure to put the prosecutor on the stand to deny the allegations.

To read the full opinion click here.

Panel: Chief Judge Traxler, Judges Niemeyer and Motz

Argument Date: 01/29/2015

Date of Issued Opinion: 09/23/2015

Docket Number: 14-6513

Decided: Reversed by published opinion.

Case Alert Author: Kathleen DeNobile, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Elbert Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellants. Michael Brian Hissam, BAILEY & GLASSER, LLP, Charleston, West Virginia, for Appellee. ON BRIEF: Patrick Morrisey, Attorney General, Christopher S. Dodrill, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellants.

Author of Opinion: Judge Niemeyer

Concurring Opinion: Chief Judge Traxler

Dissenting Opinion: Judge Motz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 03:20 PM     4th Circuit     Comments (0)  

  Griffin v. Baltimore City Police Deparment -- Fourth Circuit
When Process Matters: Former State-Prison Inmate's Civil Action for Damages Barred by Court Precedent and Federalism Concerns

Areas of Law: Civil Procedure, Habeas Corpus, Enforcement Act of 1871

Issue Presented: Whether a civil action for damages under 42 U.S.C. § 1983 based on an alleged violation of a constitutional right may lie when the plaintiff is no longer in custody and the underlying state conviction has not been invalidated through either a state remedy or federal habeas corpus.

Brief Summary: In a published opinion with a separate concurrence, the United States Court of Appeals for the Fourth Circuit found that a civil lawsuit filed under 42 U.S.C. § 1983 (hereinafter section 1983) is barred when the plaintiff's allegedly unconstitutional conviction or incarceration has not been invalidated through either state or federal review.

Extended Summary: On March 8, 1982, in Baltimore City Circuit Court, Wendell Griffin was convicted and sentenced to life in prison for murder and a related weapons charge. During the first twenty-eight years of his incarceration, Griffin made several attempts to appeal his conviction and challenge his incarceration, including a petition for federal habeas relief. None were successful.

In 2010, almost 30 years later, Griffin filed a pro se petition seeking post-conviction DNA testing of certain evidence, authorized by state law. In response, the circuit court appointed Griffin counsel. With assistance from counsel, Griffin uncovered potentially exculpatory evidence. At an initial evidentiary hearing, the circuit court found that the state's search for evidence related to Griffin's case was reasonable and the court declined to address the issue of whether the evidence was intentionally withheld until a later hearing. In February 2012, Griffin filed an unopposed motion to modify his life sentence to time served, which the circuit court granted. Griffin received three years of unsupervised probation. The probation was terminated early in December 2012.

No longer in custody, Griffin sued the Baltimore City Police Department and three of its former detectives under section 1983 in the United States District Court for the District of Maryland for their alleged role in concealing potentially exculpatory evidence. The district court dismissed Griffin's claim.

In a unanimous decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of Griffin's claim. The court found that section 1983 claims alleging an unlawful withholding of exculpatory evidence may not lie when the underlying conviction has neither been invalidated nor compromised through state or federal means.

Section 1983 claims are barred when, if successful, the claim would undermine the validity of a still-valid, prior conviction. As the Supreme Court explained in Heck v. Humphrey, there are two concerns that support such foreclosure. First, a successful section 1983 plaintiff could win damages premised on the wrongfulness of a still-valid conviction, resulting in "two conflicting resolutions" to the same controversy. Second, a section 1983 claim is, in effect, a collateral attack on a conviction, yet Congress has designated habeas corpus as the exclusive federal remedy for state prisoners seeking release from confinement.

The court recognized some exceptions to the bar articulated in Heck. First, section 1983 claims that do not necessarily compromise a still-valid conviction may still proceed. Second, if a section 1983 plaintiff could not have practically sought habeas relief while in custody, then a post-release 1983 complaint will not be barred by Heck.

The court held that Griffin's section 1983 claim was barred because he alleged an unlawful withholding of exculpatory evidence, which, if successful, would necessarily compromise the underlying conviction. Therefore, because Griffin's state conviction is still-valid, Heck barred Griffin's section 1983 claim. The court also explained that Griffin's release from custody did not alter this result because to do so would impermissibly turn section 1983 into a new front for federal post-conviction review.

The court further held that Griffin's section 1983 claim was barred because he had ample opportunity to seek federal habeas relief while in custody. The court explained that Griffin had the right to file the state authorized petition which ultimately led to the discovery of the exculpatory evidence during his three decades of incarceration. Moreover, even after the exculpatory evidence was found, Griffin was incarcerated for sixteen additional months - during which time he could have petitioned for habeas review. Therefore, the court concluded, Griffin's section 1983 claim ran square into the Heck bar again.

In dicta, the court made clear that its opinion did not foreclose Griffin from all recourse related to his alleged unlawful incarceration. Griffin may employ state remedies to either recover damages or to invalidate his conviction. Using section 1983 to mount a collateral attack on a still-valid state conviction, however, would intrude on long-settled principles of federalism and dual-sovereignty. Instead, habeas corpus is the appropriate means to mount such an attack.

In her concurrence, Judge Harris agreed with the majority on all points, but she highlighted the fact that the decision is in no way a judgment on the merits of Griffin's section 1983 claim. Rather, to be consistent with Heck, Griffin must invalidate his state conviction through state procedure before seeking federal relief through section 1983.

To read the full opinion click here.

Panel: Judges Wilkinson, Agee, and Harris

Argument Date: 09/17/2015

Date of Issued Opinion: 10/27/2015

Docket Number: Case No. 14-1494

Decided: Affirmed by Published Opinion

Case Alert Author: Travis Bullock, Univ. of Maryland Carey School of Law

Counsel: Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore, Maryland, for Appellant. Daniel C. Beck, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Sarah F. Lacey, LEVIN & CURLETT LLC, Baltimore, Maryland, for Appellant. George A. Nilson, City Solicitor of Baltimore City, Suzanne Sangree, Chief, Glenn Marrow, Deputy Chief, Police Legal Affairs Division, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

Author of Opinion: Judge Wilkinson

Concurring Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 03:04 PM     4th Circuit     Comments (0)  

  United States v. Patiutka -- Fourth Circuit
No Warrant? No Probable Cause? No Exception to the Fourth Amendment Says the Fourth Circuit

Areas of Law: Criminal Procedure

Issue Presented: Whether the warrantless search of Patiutka's car was incident to his arrest or fell within the automobile exception to the Fourth Amendment's warrant requirement.

Brief Summary: Following a warrantless search of Dmytro Patiutka's car, Virginia State Troopers discovered a credit card reader, credit card embosser, credit card re-encoder, and four new iPads. The officers arrested and questioned Patiutka. He was later charged with access device fraud and aggravated identity theft. Mr. Patiutka moved to suppress the evidence found during the search and any statements he made when arrested. The district court granted the motion to suppress because the search was not incident to Patiutka's arrest and it did not fall within the automobile exception to the Fourth Amendment.

Extended Summary: In 2013, Virginia State Trooper G.S. Cox pulled over Dmytro Patiutka for traffic violations. Although Patiutka's driver's license contained a different name and birth date from what Cox thought he had been given, the trooper told Patiutka that he was, "free to go." In his mind, however, Trooper Cox did not think Patiutka was free to leave, so he asked Patiutka for consent to search his car. It is unclear whether consent was actually given when Trooper Cox, with the assistance of Trooper Moore and other officers who had arrived, began to search Patiutka's car. They found a bag with a credit card reader and a suitcase with 4 new iPads. At this time, Patitutka asked why the officers were searching his car, and Cox responded, "I asked you could I search your car." Patiutka then told Cox to close the car, and Trooper Cox told the other officers to stop searching the car. Trooper Moore stopped searching the car and announced he was placing Patiutka into "investigative detention." With Patiutka in investigative detention, the officers continued to search Patiutka's car for 50 minutes, finding a credit card embosser, a credit card re-encoder, and blank credit cards. Following the search, Patiutka was taken to the police station and questioned by Trooper Moore and Secret Service agents. Patiutka made incriminating statements during this interview and was later charged with access device fraud and aggravated identity theft. Patiutka moved to suppress the physical evidence and statements resulting from the search of the car.

The United States District Court for the Western District of Virginia granted the motion to suppress and rejected the government's arguments that the search was incident to Patiutka's arrest or fell within other Fourth Amendment exceptions to the warrant requirement. The Fourth Circuit reviewed the grant of the motion to suppress de novo and reviewed the factual findings by the district court for clear error.

On appeal, the government argued that the search of Patituka's car was incident to his arrest. Police officers are allowed to search a vehicle incident to arrest when the arrestee is unsecured and close to the passenger compartment or it is reasonable to believe the vehicle contains evidence relating to the offense of arrest. The government argued that Trooper Cox had probable cause to arrest Patiutka for providing a false identity, and the car search was incident to the arrest for providing false identity information.

The district court found there was not probable cause to arrest Patiutka. The district court viewed the dashboard video of the stop and found that (1) Trooper Cox did not ask Patiutka any follow-up questions about the differing birthdates; (2) the Trooper asked for and believed he received consent to search the car, and the Trooper called off the search when consent was revoked; and (3) it is unclear what Patiutka said about his birthdate because of highway traffic, a barking police dog and Patiutka's foreign accent. The United States Court of Appeals for the Fourth Circuit found that probable cause to arrest Patiutka only arose after the officers discovered the credit card materials, so the search was not incident to Patiutka's arrest.

The government also argued the search fell under the automobile exception to the warrant requirement. Police officers may search a car without a warrant if they have probable cause to believe the car contains evidence of criminal activity. The district court found there was not an objective basis for probable cause to search because there are harmless reasons why one would be in possession of a credit card reader and four new iPads, and Officer Cox failed to question Patiutka after discovering these objects. The Fourth Circuit agreed with the district court, stating that the automobile exception did not apply because it requires police to have probable case and there was none.

Finally, the government argued the officers had probable cause to arrest due to the collective knowledge doctrine. The collective knowledge doctrine directs the court to "substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer." Collective knowledge does not, however, allow a court to aggregate disparate pieces of information from many officers to create probable cause. The district court and Fourth Circuit agreed that the collective knowledge doctrine did not apply because, as instructing officer, Trooper Cox did not have probable cause to conduct the search and, when Patiutka revoked consent, the search was called off.

The district court's grant of the motion to suppress was affirmed.

To read the full opinion click here.

Panel: Judges Motz, Wilkinson, and Agee

Argument Date: 9/15/2015

Date of Issued Opinion: 10/23/15

Docket Number: No. 14-4932

Decided: Affirmed by published opinion.

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellant. Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellee. ON BRIEF: Anthony P. Giorno, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellant. Larry W. Shelton, Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellee.

Author of Opinion: Judge Motz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 02:49 PM     4th Circuit     Comments (0)  

  United States v. Andrews -- Fourth Circuit
Honesty Is the Best Policy: Fourth Circuit Upholds Sentence Enhancement of Man Who Allowed Alibi Witnesses to Falsely Testify on His Behalf

Areas of Law: Criminal Law, Criminal Procedure

Issue Presented: Whether a defendant's sentence enhancement level should be raised for obstruction of justice when the defendant knowingly allows his alibi witnesses to falsely testify on his behalf.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit found no clear error in the United States District Court for the Middle District of North Carolina's imposition of a two-level sentence enhancement on a man whose alibi witnesses falsely claimed he was at their home during the time of a reported robbery.

Extended Summary: On March 27, 2011, a man believed to be Albert Lee Andrews III ("Andrews"), entered a Domino's Pizza in Kannapolis, North Carolina, armed with a handgun. He ordered an employee at gunpoint into the store's office and demanded that the manager who was working in the office, open the safe. When he was told the safe was empty, Andrews stole money from the cash registers and from two employees. He also stole the manager's wallet.

The store manager immediately reported the robbery to the police. While searching for Andrews, a police officer found an abandoned vehicle that had hit two other vehicles before running off of the road. From that vehicle, the police officer recovered two wallets, one belonging to Andrews and the other to the Domino's Pizza store manager. The officer also recovered a cell phone that had pictures of Andrews' family as well as listed calls made and received in Kannapolis at the time of the robbery, a traffic citation that was issued to Andrews, a bill of sale for the vehicle showing that Andrews owned it, and a baseball cap that was later proven by DNA analysis to belong to Andrews.

Andrews was charged with interfering with commerce by robbery under 18 U.S.C § 1951, and carrying and using a firearm during and in relation to a crime of violence under 18 U.S.C § 924 (c) (1) (A) (ii). Andrews pled not guilty and invoked his right to a jury trial. Andrews also filed several pro se motions, one of which accused prosecutors of intimidating potential witnesses and blocking their testimony as well as submitted a notice of alibi and a brief describing the alibi testimony.

In the opening statements at trial, Andrews' attorney identified two alibi witnesses, Jerrika Hunter ("Hunter"), Andrews' girlfriend, and Hunter's mother, Monica Moffet ("Moffet"). Hunter and Moffet testified that Andrews was at their home in Charlotte at the time of the robbery. This testimony was found to be false. Another witness, Brandi Lark, the mother of one of Andrews' children, testified that Andrews visited her home during the night in question and told her that he robbed the Domino's. Andrews chose not to testify and the jury found him guilty on all counts.

In 2013, the Fourth Circuit reviewed Andrews' sentence and ruled that he no longer qualified for sentencing as a career offender. As a result, the court vacated Andrews' sentence and remanded the case for resentencing. On remand, the United States Probation Office calculated Andrews' total offense level as 22. However, the government requested a two-level enhancement for obstruction of justice under U.S.S.G § 3C1.1 on the grounds that Andrews knowingly allowed the witnesses to be called and give false testimony.

The requested enhancement was granted and Andrews objected. However, the District Court found that Andrews' knowledge that his attorney was going to present Hunter and Moffet as alibi witnesses, his watching and listening to the false testimony, and his subsequent silence during trial amounted to obstruction of justice. The court resentenced Andrews to 115 months imprisonment on one count, 84 months consecutive on the other, and five years of supervised release.

U.S.S.G § 3C1.1 states that a sentence enhancement level may be increased by two levels if the defendant willfully obstructs or impedes or attempts to obstruct or impede the administration of justice with respect to the investigation, prosecution or sentencing of the offense of conviction. Moreover, the commentary of §3C1.1 lists subornation of perjury as an example of a covered conduct and states that a defendant can obstruct justice through his own conduct and through the conduct of others that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.

The Fourth Circuit noted that in U.S. v. Dunnigan, the Supreme Court instructed district courts to establish all of the factual predicates of perjury when finding obstruction of justice on that basis. 507 U.S. 87, 95 (1993). However, the Fourth Circuit also explained that the district court's obligation is to find facts on the critical component of § 3C1.1, which is a willful obstruction or impediment of the administration of justice. Further, a sentence enhancement is warranted if the court below made a proper finding of obstruction even if it did not find subornation of perjury. The court also explained that for deterrent and efficiency purposes, the district court must be afforded adequate discretion in its fact finding capacity as it holds a special advantage in fact finding when the sentence enhancement is based on testimony or trial proceedings that it previously observed.

The Fourth Circuit found no clear error in the district court's imposition of the sentence enhancement due to the overwhelming evidence that placed Andrews at the scene of the crime. This fortified the district court's conviction that the testimony of Andrews' alibi witnesses was patently false. Moreover, the Fourth Circuit agreed that Andrews was aware in advance of the trial that his alibi witnesses were planning to present false testimony, as he was put on notice through the notice of alibi, opening statements, the trial brief, and his pro se motion. The Fourth Circuit also agreed that although Andrews did not take the stand and personally perjure himself, the evidence showed that Andrews knowingly presented and actively orchestrated the presentation of false testimony, making him guilty of obstructing justice.

Andrews suggested that the imposition of the sentence enhancement penalized him from exercising his Fifth Amendment right to remain silent. However, the Fourth Circuit found that Andrews suffered no such penalty as the fact that the dynamics of a trial may present a defendant with difficult tactical choices such as taking the stand to rebut evidence, has never been held to infringe on the defendant's right to remain silent. The court also found that Andrews was not deprived of his right to present a vigorous defense as this right has never included the right to present false testimony. Lastly, the Fourth Circuit found that Andrews' right to counsel was also not violated as he was represented by counsel throughout the proceedings and there was no attempt to probe the content of his counsel's communication with him.

In concluding its analysis, the Fourth Circuit cautioned that not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice and that an obstruction of justice sentence enhancement should only be used in situations like the present where it is needed to safeguard the integrity of the proceeding.

To read the full text of this opinion, please click here.

Panel: Judges Wilkinson, Motz, and Keenan

Argument Date: 9/15/15

Date of Issued Opinion: 10/30/15

Docket Number: Case No. 14-4422

Decided: Affirmed by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellant. Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee. ON BRIEF: W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 12:44 PM     4th Circuit     Comments (0)  

  Oberg v. Pennsylvania Higher Education Assistance Agency -- Fourth Circuit
Whistleblower Suit Gets Go-Ahead from Fourth Circuit

Areas of Law: Constitutional Law, 11th Amendment

Issue Presented: Whether Pennsylvania Higher Education Assistance Agency is an arm of the Pennsylvania state government and thus immune from civil suit.

Brief Summary: In the third installment in a series of cases stemming from the same litigation, the Fourth Circuit held that the Pennsylvania Higher Education Assistance Agency (PHEAA) was not an arm of the Pennsylvania state government and reversed the grant of summary judgment for PHEAA.

Extended Summary:
This case is the third case that has come before the Fourth Circuit stemming from a whistleblower suit brought by Jon Oberg against several student loan servicers and providers. Oberg brought suit under the False Claims Act, alleging that the defendants inappropriately claimed federal student loan interest subsidy payments.

In Oberg II, the court reversed the District Court's ruling that PHEAA was an arm of the Pennsylvania state government and thus immune from suit, and remanded for further discovery on PHEAA's status as a state agency. After discovery, the District Court ruled that PHEAA was an arm of Pennsylvania government and granted summary judgment for PHEAA which resulted in this opinion.

The Fourth Circuit considered four factors when evaluating whether PHEAA was an arm of the state for the purposes of immunity from suit. These factors are whether any judgment would be paid by the State; how much autonomy is exercised by the organization; whether the organization involves itself with State concerns; and how the organization is treated under State law.

The court held that the first factor, whether a judgment would be paid by the State, weighed against PHEAA being held to be an arm of the State. PHEAA controls substantial revenue and assets. In the past, when PHEAA has settled other legal disputes, PHEAA paid the agreed upon settlements from its own funds rather than from State assets. Turning to the second factor, the court held that PHEAA was autonomous from the State government, citing its control over its substantial revenues and testimony from officers regarding the lack of legislative oversight. The Fourth Circuit next held that the third factor, whether the organization was involved with State concerns, weighed in favor of PHEAA being a state entity. The court found that PHEAA was primarily concerned with accessibility of higher education and that this was a state concern. Finally, as to the fourth factor, the court held that the PHEAA was treated as a State entity under State law. Balancing all four factors, the court ultimately held that PHEAA was not an arm of the state and that summary judgment was improperly granted.

The instant ruling - that PHEAA was not protected by Eleventh Amendment immunity - was applied by the Fourth Circuit in Pele v. Penn. Higher Educ. Assistance Agency, No. 14-2202, 2015 WL 6162942 (4th Cir. Oct. 21, 2015). In Pele, the court vacated and remanded the district court's grant of summary judgment in favor of PHEAA. Plaintiff Pele is now able to proceed with his suit against PHEAA under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., for refusing to remove information he claims was erroneous from his credit reports.

To read the full opinion in Oberg click here. To read the full opinion in Pele click here.

Panel: Chief Judge Traxler and Judges Gregory and Keenan

Argument Date: 05/12/2015

Date of Issued Opinion: 10/21/2015

Docket Number: 15-1093

Decided: Reversed and remanded.

Case Alert Authors: Kathleen DeNobile and J'Naia Boyd, Univ. of Maryland Carey School of Law

Counsel: Bert Walter Rein, WILEY REIN LLP, Washington, D.C., for Appellant. Paul D. Clement, BANCROFT PLLC, Washington, D.C., for Appellee. ON BRIEF: Michael L. Sturm, Brendan J. Morrissey, Stephen J. Obermeier, WILEY REIN LLP, Washington, D.C., for Appellant. John S. West, Megan C. Rahman, Richmond, Virginia, Christopher G. Browning, Jr., TROUTMAN SANDERS LLP, Raleigh, North Carolina, for Appellee Vermont Student Assistance Corporation; George W. Hicks, Jr., Raymond P. Tolentino,
BANCROFT PLLC, Washington, D.C., Joseph P. Esposito, Jill M. deGraffenreid, HUNTON & WILLIAMS LLP, Washington, D.C., Daniel B. Huyett, Neil C. Scur, STEVENS & LEE P.C., Reading, Pennsylvania, for Appellee Pennsylvania Higher Education Assistance Agency.

Author of Opinion:
Chief Judge Traxler

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 12:07 PM     4th Circuit     Comments (0)  

  Porter v. Zook -- Fourth Circuit
It's All About Who You Know: Fourth Circuit Remands Case Where Law Student Discovers Juror Relationship that Could Lead to Finding of Actual Bias in Murder Trial

Areas of Law: Criminal Law, Criminal Procedure, Federal Appellate Jurisdiction

Issue Presented: Whether the Fourth Circuit has jurisdiction over a habeas corpus petition when the District Court did not consider all of the appellant's claims, particularly one of actual juror bias.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit dismissed and remanded a challenge to the dismissal of a habeas corpus petition for lack of jurisdiction where the District Court's failed to consider Thomas Porter's claim of actual juror bias.

Extended Summary: In 2007, following a month-long manhunt, a jury in Arlington County, Virginia, convicted Thomas Porter of capital murder, grand larceny, and use of a firearm in commission of a felony for shooting a Norfolk police officer. The jury sentenced Porter to death, and a lengthy appeals process followed in the state and federal courts.

In the most recent decision in the Porter saga, the Fourth Circuit considered the District Court for the Eastern District of Virginia's dismissal of Porter's petition for writ of habeas corpus. The Fourth Circuit, however, never reached the merits of Porter's case because it determined it did not have jurisdiction. Specifically, the court held that the lower court did not make a final decision on Porter's claim of actual juror bias.

During the jury selection process at Porter's trial, the judge asked potential jurors whether they were related to law enforcement officers. One juror, Mr. Treakle, revealed that he had a nephew who was an officer in Arlington, but assured the judge that he could remain impartial. Mr. Treakle failed to tell counsel about his brother, who was a deputy sheriff in the town that borders Norfolk, where the crime took place.

While conducting an investigation for Porter's appeal, a law student interviewed the jurors who decided Porter's guilt, including Mr. Treakle. In an affidavit, Mr. Treakle admitted that he was very moved by the testimony of the officer's widow because he had a brother who was a deputy sheriff. Based on this new information, Porter raised two distinct, but related, juror bias claims in his federal habeas petition in District Court. On appeal, the Fourth Circuit determined that the District Court considered only the first claim, but not the second.

First, Porter raised a claim based on Mr. Treakle's conduct during voir dire, which the District Court analyzed under the standard identified in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). McDonough allows for a new trial if a juror fails to honestly answer a material question. The District Court ruled that although Mr. Treakle did not reveal all of his connections to law enforcement, he technically did not give false information during voir dire. Counsel was responsible for asking follow-up questions, which they failed to do.

Second, Porter claimed that Treakle was actually biased, or "biased in fact" because of his close relationship with his brother, who was an officer in a jurisdiction that participated in the manhunt for Porter. See Smith v. Phillips, 455 U.S. 209 (1982). The Fourth Circuit pointed out that the actual bias claim could succeed, even though the corresponding McDonough claim failed below. The Fourth Circuit cited a Fifth Circuit case, United States v. Scott, 854 F.2d 697, 698 - 700 (5th Cir. 1988), where a new trial was granted based, similarly, on a juror's undisclosed relationship to a deputy sheriff. According to the Fourth Circuit, the District Court failed to analyze this separate claim. Therefore, the Fourth Circuit panel remanded the case without comment on the merits so that the lower court could make a final decision on the actual bias claim.

To read the full opinion, click here.

Panel: Judges Shedd, Thacker, and Harris.

Argument Date:
September 16, 2015

Date of Issued Opinion: October 20, 2015

Docket Number: No. 14-5

Decided: Dismissed and remanded by published opinion

Case Alert Author: Natalie Bilbrough, Univ. of Maryland Carey School of Law

Counsel: Dawn Michele Davison, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Robert Lee, Lindsey Layer, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia; Brian K. French, NIXON PEABODY, LLP, Boston, Massachusetts; Trey Kelleter, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Appellant. Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 11:50 AM     4th Circuit     Comments (0)  

  United States v. Spencer -- Fourth Circuit
Rinse and Resentence: Court Demands New Sentence for Fluoride-Wielding Defendant

Areas of Law: Criminal Law, Sentencing

Issue Presented: Whether a defendant's sentence enhancement for evidence of intent to commit a crime was proper when the defendant sent dried toothpaste in a threatening letter.

Brief Summary: Todd Allen Spencer pled guilty to one count of threat to injure by communication under 18 U.S.C. § 876(c). Spencer sent a letter to the Clerk of the United States District Court for the Eastern District of Virginia that contained written threats and dried, powdery toothpaste. Spencer was sentenced to 46 months incarceration and was subject to a six-level sentencing enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(1). This enhancement was for "conduct evidencing an intent to carry out such threat." The Fourth Circuit held that Spencer's conduct in including the dried toothpaste did not demonstrate intent to carry out his threats, vacated his original sentence, and remanded for resentencing.

Extended Summary: Defendant Todd Allen Spencer mailed a letter to the Clerk of the United States District Court for the Eastern District of Virginia. In that letter, Spencer included a threat to kill or injure the letter's recipient, and also included in the envelope what the court describes as "dried, powdery toothpaste." Spencer subsequently pled guilty to one count of threat to injure by communication under 18 U.S.C. § 876(c).

At sentencing, the Government sought a six-level enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(1), on the grounds that "the offense involved . . . conduct evidencing an intent to carry out such threat." The district court found that Spencer's inclusion of the dried toothpaste was evidence of his intent to kill or harm the Clerk and applied the six-level enhancement. Spencer was sentenced to 46 months of incarceration.

On appeal to the United States Court of Appeals for the Fourth Circuit, Spencer argued that the district court erred in applying this enhancement. The application of this enhancement turns on "the defendant's intent and the likelihood that the defendant would carry out the threat." United States v. Worrell, 313 F.3d 867, 876 (4th Cir. 2002). As such, threats alone are not sufficient to justify inclusion of the § 2A6.1(b)(1) enhancement.

While the application notes for § 2A6.1(b)(1) do not include any example of applicable conduct, the Fourth Circuit looked at Sentence Guideline Manual § 2M6.1, which pertains to biological agents and toxins. This section is cross-referenced by the "intent to commit" section that was used to lengthen Spencer's sentence. The notes to the "biological agents and toxins" section state that "a defendant does not engage in conduct evidencing an intent to carry out a threat to use a biological agent or toxin by dispersing a substance that appears to be an agent or toxin but is not, and the defendant knows is not, an actual biological agent or toxin."

Based on this language, the Fourth Circuit concluded that Spencer did not have the necessary intent to kill or injure the letter's recipient that is required to qualify for the six-level enhancement under § 2A6.1(b)(1). The court found that inclusion of the dried toothpaste did not show Spencer's subjective intent to actually harm another individual or make his threats any more dangerous.

The court did consider whether the error committed by the district court was harmless, but concluded that it was not. The court noted that nothing in the record indicated that the district court would have been inclined to sentence above the guidelines had this enhancement not been applied, and that clearly the application of the enhancement lengthened Spencer's eventual sentence. Because the district court erred in applying the sentence and the error was not harmless, the Fourth Circuit vacated Spencer's original sentence and remanded his case to the district court for resentencing.

To read the full text of this opinion, please click here.

Panel: Judges Shedd, Duncan and Davis

Argument Date: N/A

Date of Issued Opinion: October 20, 2015

Docket Number: 15-4060

Decided: Sentence vacated and remanded to the district court for resentencing

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: Geremy C. Kamens, Acting Federal Public Defender, Frances H. Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, William D. Muhr, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Author of Opinion:
Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 11:40 AM     4th Circuit     Comments (0)  

  O.S. v. Fairfax County School Board -- Fourth Circuit
The ABCs of IDEA: What Does it Mean to Get a Free and Appropriate Public Education

Areas of Law: Education, Administrative

Issue Presented: Whether the Individuals with Disabilities Education Act ("IDEA") requires the school board's Individualized Education Programs ("IEP") to give each student a meaningful educational benefit.

Extended Summary: This case arises from a couple's challenge to the IEP that Fairfax County Public Schools implemented for their child, O.S., in the second grade. An IEP is required under IDEA to ensure that students with disabilities are given a "free and appropriate public education." It is also intended to give the student meaningful access to an educational benefit.

In this case, the student, O.S., had significant physical handicaps including a seizure disorder, a speech impediment, and a congenital heart condition. These conditions qualified O.S. as disabled under IDEA and thus required the school, in collaboration with O.S.'s parents, to develop IEPs for the student on a yearly basis. The first IEPs were developed for kindergarten and first grade and included speech therapy and in-class education, as well as special education and physical education. The parents agreed to these IEPs. However, when the second grade was approaching, the school made small revisions to the previous IEPs that the parents did not agree with.

IDEA allows parents to challenge an IEP in an administrative process if they do not agree with the school's assessment. The parents raised such a challenge because they felt O.S. should have access to both a one-on-one personal aide and a full-time nurse. In the administrative proceeding, the school presented fourteen witnesses and over two hundred exhibits detailing the progress that O.S. had been making under the current IEPs. The parents presented no witnesses and introduced only two tests suggesting that O.S. had regressed in his educational process due to the lack of one-on-one aide and full-time nursing services. The hearing was decided in favor of the school, and the parents appealed to the U.S. District Court for the Northern District of Virginia.

On appeal, the district court gave the requisite deference to the administrative process and determined that the school's IEPs were appropriate under the current law without the nurse and one-on-one aide. The parents argued that IDEA required that a student be given the tools necessary for meaningful educational benefit, which had not been achieved. The district disagreed and affirmed the administrative decision.

Since this was a statutory interpretation challenge to IDEA, the U.S. Circuit Court for the Fourth Circuit reviewed the District Court's decision de novo. In determining whether IDEA requires a meaningful education benefit to the student, the court held that the controlling law was decided in United States v. Rowley. In that case, the Supreme Court found that while IDEA requires meaningful access to a "free and appropriate public education," it only requires that the access be tailored to give the student some educational benefit. Despite this precedent, O.S. argued that 1997 and 2004 amendments to IDEA changed this standard. Relying on the restructured preamble indicating that Congress wanted to focus on providing higher expectations for students with special needs, as well as a decision by the 9th Circuit, O.S. argued that Congress changed the standard to require meaningful benefit to the student, not just meaningful access. The Fourth Circuit was not persuaded and held if Congress meant to derogate Supreme Court precedent it would have done so expressly. The court further stated that the educational benefit required was already determined to be meaningful under the current Rowley standard and that the school need only meet this standard when tailoring a student's access to a free and appropriate public education.

Panel: Judges Motz, Wynn, and Davis

Argument Date: 09/16/2015

Date of Issued Opinion: 10/19/2015

Docket Number:
No. 14-1994

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Dennis Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellants. John Francis Cafferky, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Michael Edward Gehring, Caitlin Elizabeth McAndrews, MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellants. Patricia A. Minson, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee.

Author of Opinion: Alexander H. Kelly, Univ. of Maryland Carey School of Law.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 11:20 AM     4th Circuit     Comments (0)  

  United States v. Slocumb -- Fourth Circuit
Just a Hunch: Fourth Circuit Vacates Conviction of Virginia Man in the Wrong Place, at the Wrong Time, for the Right Reasons

Areas of Law: Constitutional Law, Criminal Procedure

Issue Presented: Whether Culpeper, Virginia police obtained evidence and statements from the appellant in violation of the Fourth Amendment when they detained and arrested him after encountering him around midnight in the parking lot of a closed commercial business located in a known drug-trafficking area, then searched a car he had borrowed after his girlfriend, who was also present, consented to its search?

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit reversed, vacated, and remanded Andre Slocumb's case for further proceedings because the court concluded the Culpeper police did not have reasonable suspicion to detain him. In reaching its conclusion, the court found the Culpeper police had not articulated reasons why Slocumb's presence in the business's parking lot after hours, his behavior, and reason for being there - his girlfriend's car had broken down - added up to suspicion of criminal activity.

Extended Summary: On March 18, 2013, the Culpeper Police Department was preparing to execute a drug warrant on a target house. As part of its operation, the police used the parking lot of a salvage yard located across the street from the target house. The police arrived at the salvage yard around midnight, after the business was closed. Upon their arrival they encountered the appellant, Andre Slocumb, and his girlfriend, Sierra Lewis, with a baby. Slocumb and Lewis were in the process of transferring a car seat from a Cadillac to a Honda. One of the police officers, Lieutenant Timothy Chilton, approached the couple to inquire why they were in the salvage yard's parking lot. Slocumb explained that his girlfriend's car had broken down and he had come to pick her up. Although their conversation lasted less than a minute, Chilton thought Slocumb was "acting evasively" because he did not make eye contact and mumbled his answers to the officer's questions. Chilton then called Officer Grant over to stay with Slocumb and Lewis while he went to help the other officers execute the search warrant. Slocumb overheard Chilton tell Grant that he and Lewis "were not allowed to leave."

While waiting for Chilton to return, Slocumb told Grant he was in the salvage yard's parking lot to help his girlfriend whose car had broken down, and that he had borrowed his landlord's car, the Honda, to come pick her up. The explanation Slocumb gave Grant was consistent with what he told Chilton. Grant asked Slocumb for identification; he did not have any, but he told the officer his name was "Anthony Francis." Grant ran the name through dispatch, which returned a person with the same name whose description matched Slocumb's physical appearance. Grant asked Slocumb whether he was carrying anything illegal; Slocumb said no. Grant then asked Slocumb for consent to search him; Slocumb declined to consent to a search. Grant also explained why he and the other officers were in the area and asked Slocumb if he was aware of drug trafficking in the area; Grant thought that Slocumb became increasingly nervous over the course of questioning.

After about ten minutes, Chilton returned and Grant reported to him that Slocumb had given the name "Anthony Francis," which was consistent with the information Grant had received from dispatch. Chilton asked Slocumb additional questions regarding his identity to which he thought Slocumb provided inconsistent responses. Grant then asked Lewis for Slocumb's name, which she said was "Hakeem." Chilton and Grant recognized the name as that of an individual who was under investigation for drug trafficking. The officers then placed Slocumb under arrest for providing a false name and searched him. The search revealed almost $6,000.

After Chilton and Grant searched Slocumb, Officer Richard McKnight, who had helped execute the search warrant on the target house, came over to the salvage yard parking lot. McKnight questioned Lewis about Slocumb and asked her for consent to search the Honda; she consented. Upon searching the car, the police found methamphetamine, cocaine powder, and cocaine base under the passenger's seat. They also found Slocumb's landlord's purse, which contained a small amount of marijuana, in the trunk. Slocumb admitted the drugs were his, and the police took him to a magistrate's office where he made additional incriminating statements. Based on Slocumb's statements, the police obtained a warrant to search Slocumb's house. Their search uncovered marijuana smoking devices, a small amount of white powder, and other items.

Prior to trial, Slocumb filed a motion to suppress evidence and statements he made to the police. The district court denied Slocumb's motion, finding that the officers had reasonable suspicion to detain him and probable cause to arrest him. The district court also concluded that Lewis had apparent authority to consent to the search of the Honda. Slocumb pleaded guilty, but retained his ability to appeal the motion to suppress.

On appeal, Slocumb first argued that Chilton did not have reasonable suspicion to detain him. Because the parties agreed that Slocumb had been "seized," the court began its analysis by examining the totality of the circumstances to determine whether Chilton had reasonable suspicion to detain Slocumb. The Fourth Circuit examined the factors the district court considered when it denied Slocumb's motion to suppress: (1) the area around the salvage yard was a high-crime area; (2) it was after midnight; (3) Slocumb was in the parking lot of a business that had closed several hours earlier; (4) Slocumb's "evasive" behavior; and (5) that Slocumb's behavior was "inconsistent" with his explanation for why he was in the salvage yard parking lot. The court considered the first three factors together and noted that they support a finding of reasonable suspicion in general, but not as to a specific person. Next, the court considered Slocumb's behavior. Although the district court found that Slocumb had acted evasively because most people in Slocumb's situation would have welcomed a police officer, the Fourth Circuit rejected this rationale. The court found the fact that Slocumb did not attempt to flee or even leave the area weighed against finding reasonable suspicion because in other cases much more evasive behavior, such as walking away at a fast pace, did not support a finding of reasonable suspicion. Moreover, in cases where a defendant did not flee the scene, the Fourth Circuit has required more extreme signs of nervousness to find reasonable suspicion. Slocumb's mumbled responses, avoiding eye contact, and seemingly hurrying Lewis did not rise to the level of nervousness required to find reasonable suspicion. In concluding its analysis, the court noted that Chilton's suspicions should have been dispelled when Slocumb gave answers to Chilton's questions that were consistent with his actions.

The court rounded out its analysis with a reminder that the government cannot simply list factors and label them as suspicious; it must explain why those factors are indicative of criminal activity and therefore should support a finding of reasonable suspicion. The court did not reach Slocumb's probable cause and consent claims because it concluded that the police did not have reasonable suspicion to detain him.

To read the full text of this opinion, please click here.

Panel: Judges Gregory, Agee, and Diaz

Argument Date: 9/16/2015

Date of Issued Opinion: 10/22/2015

Docket Number: Case No. 14-4733

Decided: Reversed, vacated, and remanded for proceedings consistent with this opinion by published opinion.

Case Alert Author: Monica Basche, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 10:59 AM     4th Circuit     Comments (0)  

October 30, 2015
  Coastal Coal-West Virginia, LLC v. Dept. of Labor -- Fourth Circuit
Headline: Error by ALJ Disrupts Trend of Black Lung Benefits Affirmances

Areas of Law: Administrative Law, Employment Law

Issue Presented: Whether the Administrative Law Judge erred in awarding benefits to Richard L. Miller under the Black Lung Benefits Act.

Brief Summary: This case stems from an award of benefits to Richard L. Miller by an Administrative Law Judge (ALJ) and the Benefits Review Board. Miller is a former coal miner suffering from black lung disease. Coastal Coal, opposing the award, filed an appeal for review of the decision. On May 12, 2015, the Fourth Circuit dismissed the appeal as untimely. The current decision is in response to Coastal Coal's petition for a rehearing of the May 12, 2015 decision.

Before reviewing the ALJ's decision, the Fourth Circuit examined the issue of timeliness. The court determined that Coastal Coal filed a timely motion for reconsideration and the earlier panel erred when it ruled the petition untimely. The court cited to 20 CFR § 802.221(b), to support its reasoning, stating that the correct date for a filing is the date of postmark as opposed to the date of receipt.

Because the motion was timely, the Fourth Circuit turned to consider whether the ALJ erred in awarding benefits to Richard L. Miller. The court reviewed the decision de novo to determine whether the ALJ's decision was supported by substantial evidence. Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion."

To receive benefits under the Black Lung Benefits Act, , miners must prove four elements: (1) they have pneumoconiosis, (2) the pneumoconiosis came from employment in a coal mine, (3) they have a disabling respiratory or pulmonary condition, and (4) pneumoconiosis is a contributing cause to their respiratory disability. Additionally, an irrebuttable presumption of total disability due to pneumoconiosis attaches when a miner is suffering from lung disease that is diagnosed by a chest x-ray, biopsy or any other means reasonably expected to yield similar results. Although this presumption attaches, the miner still bears the burden of proving he or she has complicated pneumoconiosis.

Coastal Coal argued that the ALJ erred because the ALJ failed to consider conflicting interpretations of Miller's x-rays that had been provided by the doctors. The Fourth Circuit agreed with Coastal Coal. The court found the ALJ erred by not considering the doctors comments because the comments had a direct bearing on whether what was seen on the x-ray was chronic dust disease (pneumoconiosis) or some other disease. The court found substantial evidence did not support the award of benefits because the ALJ relied primarily on the x-rays without considering the comments. The Fourth Circuit granted Coastal Coal's petition for review, vacated the ALJ's award of benefits, and remanded the case for reconsideration of the x-ray evidence of complicated pneumoconiosis.

This decision, along with West Virginia CWP Fund v. Mullins, ends a year-long streak of the Fourth Circuit affirming benefit awards of the Benefits Review Board.

To read the full opinion, click here.

Panel: Judges Shedd, Duncan, and Hamilton

Argument Date: 9/29/2015

Date of Issued Opinion: 10/5/2015

Docket Number: No. 14-2012

Decided: Petition for rehearing and review granted, vacated and remanded by unpublished per curiam opinion

Case Alert Author: Diamond Martin, Univ. of Maryland Carey School of Law

Counsel: Jeffrey R. Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for Petitioner. Otis R. Mann, Jr., Charleston, West Virginia; Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Helen Hart Cox, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Washington, D.C., for Respondents.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Reneé Hutchins

Edited: 10/30/2015 at 01:59 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/30/2015 01:47 PM     4th Circuit     Comments (0)  

October 29, 2015
  United States v. Jones -- Fourth Circuit
Headline: Fourth Time's the Charm - The Fourth Circuit's Repeated Reminder to Consider 28 U.S.C. § 2255 and Federal Rule of Civil Procedure 60(b) Motions Separately

Areas of Law: Civil Procedure, Criminal Procedure

Issue Presented: Whether a post-judgment motion should be classified as a 28 U.S.C. § 2255 motion, a true Federal Rule of Civil Procedure 60(b) motion, or a hybrid of both.

Brief Summary: Dominique Alexander Jones filed a request for post-conviction relief in the United States District Court for the Eastern District of North Carolina. The district court dismissed Jones' 28 U.S.C. § 2255 motion as successive but unauthorized, and dismissed Jones' separately filed Federal Rule of Civil Procedure 60(b) motion on the same basis. The Fourth Circuit briefly reviewed the filing process for each motion. The Fourth Circuit then dismissed in part and affirmed in part, finding the district court correctly classified Jones' claim as a § 2255 motion.

Extended Summary: A 28 U.S.C. § 2255 motion is a pleading filed by a federal prisoner seeking to be released upon the ground that his or her sentence was either imposed in violation of the Constitution or some other law, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack. Once an initial § 2255 motion has been filed, the law requires a federal prisoner to seek preauthorization from a federal circuit court before filing additional collateral attacks on his conviction or sentence. In order to be granted such authorization, a movant must prove either: (1) newly discovered evidence that would prevent a reasonable fact finder from concluding the movant is guilty, or (2) a new rule of constitutional law, made retroactive to cases on collateral review.

Federal Rule of Civil Procedure 60(b) establishes another form of post-judgment relief. Rule 60(b) motions afford a movant relief from a final judgment for six specific reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) a void judgment; (5) a satisfied, released, discharged, reversed, or vacated judgment or a no-longer-equitable judgment; or (6) any other reason that justifies relief. A Rule 60(b) motion does not require preauthorization prior to filing.

When a movant presents a motion that has not been preauthorized, and that includes claims subject to both the requirements of a § 2255 successive habeas petition and a Rule 60(b) motion, it is considered a "mixed motion." Consistent with Fourth Circuit precedent, when a movant files a mixed motion, the district court must allow the movant the opportunity to elect between deleting the improper claims or having the entire motion treated as a successive application. In a series of cases, the United States Court of Appeals for the Fourth Circuit found the lower court had not allowed for such an election by the federal inmate, and consequently remanded the cases for such action to be permitted. See, e.g., U.S. v. Ethridge, _Fed.Appx._, 2015 WL 4910487 (4th Cir. August 18, 2015); U.S. v. Coleman, 2015 WL 5472569 (4th Cir. September 18, 2015); U.S. v. Adionser, 2015 WL 5947659 (4th Cir. October 14, 2015).

The Fourth Circuit will not issue a certificate of appealability without a substantial showing of the denial of a constitutional right. In the instant case, the Fourth Circuit explained that when a district court denies relief on procedural grounds, the federal prisoner must demonstrate that: (1) the dispositive procedural ruling is debatable and, (2) the motion states a debatable claim of the denial of a constitutional right. The Fourth Circuit denied Jones' certificate of appealability because Jones did not demonstrate that the procedural ruling in his case was debatable and therefore dismissed this portion of Jones' appeal.

However, the Fourth Circuit did note that it was in a position to decide whether Jones' post-judgment motion was a § 2255 motion, a Rule 60(b) motion, or a hybrid of the two. A district court must treat a Rule 60(b) motion as a successive collateral review application when failing to do so would create an excess or evasion of re-litigation. The Fourth Circuit distinguishes between a proper motion for reconsideration and a successive application by explaining " a motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application, while a motion seeking a remedy for some defect in the collateral review process will generally be deemed a proper motion to reconsider." United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (quoting Calderon v. Thompson, 523 U.S. 538 (1998)). Unlike the above-mentioned prior cases, the Fourth Circuit in Jones' case determined that the district court was correct in deciding Jones' motion as a proper and successive § 2255 motion because Jones attacked his conviction without attempting to remedy some defect in the collateral review process.

To read the full text of this opinion, please click here.

To read the full text of the cited opinions, please click Ethridge; Coleman; and Dixon.

Panel: Judges Neimeyer, King, and Gregory

Argument Date: 09/10/2015

Date of Issued Opinion: 09/23/2015

Docket Number: No. 15-6478

Decided: Dismissed in part; affirmed in part by unpublished Opinion.

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: Dominique Alexander Jones, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

Edited: 10/29/2015 at 01:48 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/29/2015 01:33 PM     4th Circuit     Comments (0)  

October 28, 2015
  United States v. McCoy -- Fourth Circuit
Headline: If You Do the [Past] Crime, the Court Can Add on Time: Fourth Circuit Declines to Extend Howard and Affirms Upward Departure in Sentence Based on Stale Convictions

Areas of Law: Criminal Law, Criminal Procedure, Sentencing

Issues Presented: Whether the district court abuses its discretion by considering stale convictions from the defendant's youth when making an upward departure from the sentencing guidelines. Whether it is substantively unreasonable for the court to apply a higher criminal history category than the Government requested in sentencing. Whether a sentence is rendered substantively unreasonable by a post-sentence retroactive amendment to the Sentencing Guidelines.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's decision to apply an upward departure to Dilade McCoy's sentence based on his prior criminal history. While affirming McCoy's 188-month sentence, the Fourth Circuit also distinguished this case from its holding in the 2014 case United States v. Howard.

Extended Summary: When he was fifteen years old, Dilade McCoy was convicted of two robberies. At age seventeen, he pled guilty to assault with a deadly weapon with intent to cause serious injury. In all three of these cases, McCoy was tried as an adult. In 2005, five years after he was discharged from the assault sentence, he was convicted for possession of cocaine. Most recently, in 2014, a jury convicted McCoy of conspiracy to distribute and possession with intent to distribute more than 500 grams but less than 5 kilograms of cocaine. This was McCoy's fifth criminal conviction since 1986.

McCoy's probation officer considered only the 2005 conviction when making his Presentencing Investigation Report ("PSR") for McCoy's 2014 conviction. The PSR set McCoy's base offense level at 32 and his criminal history category at II. The Sentencing Guidelines prescribed a sentencing range of 135 - 168 months.

The Government requested that the District Court allow an upward departure under section 4A1.3 of the Guidelines because of McCoy's serious criminal history. Section 4AI.3 allows for an upward departure when reliable information indicates that the defendant's criminal history category substantially underrepresents the defendant's criminal history or likelihood to commit another crime. The Government asked for the criminal history category to be raised to level IV and for a 192-month sentence. The United States District Court for the Eastern District of Virginia noted that McCoy's criminal history was "quite serious" and considered all three of McCoy's stale convictions to find a criminal history category of V. The court sentenced McCoy to 188 months in prison.

Dilade McCoy appealed his sentence and asked the Fourth Circuit to apply its reasoning from United States v. Howard, 773 F.3d 519 (4th Cir. 2014), to find that the upward departure was unreasonable. McCoy argued that the District Court (1) improperly considered his stale juvenile convictions from twenty-five years ago, and (2) unreasonably applied a higher criminal history category than the one the Government requested.

In Howard, the Fourth Circuit found substantively unreasonable an upward-departure life sentence imposed on a man convicted of drug-related crimes. In its reasoning, the Howard court faulted the sentencing court for treating the defendant, then age forty-one, as a de facto career criminal because of non-violent crimes he committed when he was under eighteen. The Howard court also found it significant that the Government had requested a 360-month sentence, yet the court sentenced Howard to life.

The Fourth Circuit panel distinguished McCoy's case from the one in Howard. McCoy's stale convictions were for serious, violent offenses, unlike the non-violent ones involved in Howard. Moreover, McCoy reoffended five years after his second jail sentence, showing a greater likelihood of recidivism. Most notably, the Fourth Circuit found the upward departure here, only twenty months difference, was much more modest that the one in Howard, which increased a 121-month sentence to life. The Fourth Circuit also found it insignificant that the District Court applied a higher criminal history category than the one the Government requested because the District Court still sentenced McCoy to less time than the 192-month sentence the Government suggested.

Lastly, McCoy claimed that his sentence was substantively unreasonable because Amendment 782 to the Guidelines went into effect after he was sentenced. Amendment 782 is a retroactive amendment that lowers the base offense levels for certain applicable drug-related crimes. The Fourth Circuit panel clarified that post-sentencing amendments do not make a pre-amendment sentence unreasonable and advised McCoy that he can request application of Amendment 782 by making a motion under 18 U.S.C. § 3582(c)(2) in District Court.

To read the full opinion, click here.


Panel: Judges Motz, King, and Gregory

Argument Date: September 17, 2015

Date of Issued Opinion: October 15, 2015

Docket Number:
No. 14-4745

Decided: Affirmed by published opinion

Case Alert Author: Natalie Bilbrough, Univ. of Maryland Carey School of Law

Counsel: Gregory Bruce English, ENGLISH LAW FIRM, PLLC, Alexandria, Virginia, for Appellant. Angela Mastandrea-Miller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Case Alert Circuit Supervisor: Renée Hutchins

    Posted By: Renee Hutchins @ 10/28/2015 04:12 PM     4th Circuit     Comments (0)  

  Pronin v. Johnson, et al. -- Fourth Circuit
Headline: ". . . And Access for All" - Fourth Circuit Vacates District Court's Grant of Summary Judgment on Russian National's Denial of Access to Courts Claim

Areas of Law: Prisoners' Civil Rights

Issue Presented: Whether the district court erred in granting summary judgment in favor of defendants on appellant-inmate's claims under 42 U.S.C. § 1983 of denial of access to courts, inadequate medical treatment, and an equal protection violation based on a corrections officer's alleged discriminatory conduct.

Brief Summary: In a per curiam opinion, the United States Court of Appeals for the Fourth Circuit vacated and remanded the district court's grant of summary judgment in favor of the defendants on the inmate-appellant's denial of access to courts claim under 42 U.S.C. § 1983. The court affirmed the grant of summary judgment as to the rest of appellant's claims, including his assertions of inadequate medical treatment and violation of his equal protection rights.

Extended Summary: Dmitry Pronin arrived in the United States in 2008 and resided in Catonsville, Maryland. On March 5, 2011, Pronin robbed a bank in Delaware, and was arrested about a week later in Baltimore, Maryland. He was subsequently convicted in federal court. A short time before Pronin robbed the bank, his mother, Yulia Pogrebenko, arrived in the United States from Russia. In June 2011, a fisherman found Pronin's mother's torso floating in the Chesapeake Bay, and in July 2011, a man found Pogrebenko's skull on Tolchester Beach in Kent County, Maryland. Pronin pleaded guilty to his mother's murder in state court on June 11, 2015, and was sentenced to twenty-five years in state prison. Pronin's murder sentence will be served after he completes his federal sentence for the armed robbery.

In connection with his federal incarceration Pronin filed a § 1983 civil action in the United States District Court for the District of South Carolina. He alleged various constitutional violations against prison employees, including certain guards, officials, and a doctor. The district court granted summary judgment in favor of the defendants on all of Pronin's claims. On appeal, Pronin argued that the trial court erred in granting summary judgment. The Fourth Circuit addressed three of Pronin's claims: (1) the corrections officers violated the First and Fourteenth Amendments by destroying his legal papers, which denied him access to the court; (2) he received constitutionally inadequate medical care in violation of the Eighth Amendment; and (3) a corrections officer violated his equal protection rights under the Fourteenth Amendment when, after Pronin had an altercation with his cellmate, the officer removed Pronin, who is Jewish, from his cell but allowed his cellmate, who is Hispanic, to remain.

The court reviewed the trial court's grant of summary judgment de novo, examining the facts in the light most favorable to the defendants. First, the court examined Pronin's denial of access to courts claim. This claim arose from an alleged incident in which a corrections officer left Pronin's medical records from Russia in his cell with his cellmate and they were partially destroyed; another corrections officer then threw away the remaining records. The medical records reportedly documented that Pronin has developmental disabilities, was diagnosed with bipolar and borderline personality disorders, and suffers from epilepsy and a nervous tick.

The Fourth Circuit found that Pronin's allegations about the destruction of the documents were clearly in conflict with affidavits that the two corrections officers submitted. This conflict created a dispute of material fact. Therefore, the district court erred when it concluded the corrections officers' affidavits were uncontested.

Next, the court examined whether Pronin suffered any actual injury as a result of the alleged destruction of his medical records. Quoting the Ninth Circuit, the court noted that although Pronin remained able to file a § 2255 claim, denial of access to courts encompasses "the opportunity to prepare, serve, and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one's personal liberty, or to assert or sustain a defense therein." Upon reviewing Pronin's § 2255 filings, the court found that Pronin alleged ineffective assistance of counsel because his attorney failed to seek a psychiatric evaluation for him and did not attach any medical documentation in support of his arguments for receiving a shorter sentence. Pronin also contended that he should receive a downward departure based on his mental condition. Due to the alleged destruction of his medical records, Pronin was only able to attach two 2015 psychiatric evaluations in support of his § 2255 claims - both occurring after his convictions. The court found that Pronin suffered an actual injury because he is now unable to show he was diagnosed with mental illnesses prior to his criminal convictions. This failing affects his ability to succeed on his § 2255 motion. Therefore, the court found the district court erred when it concluded Pronin had not alleged an actual injury.

Turning to Pronin's other contentions, the court first affirmed the district court's grant of summary judgment as to Pronin's claims of inadequate medical treatment and violation of his equal protection rights. The court noted that to prevail on a claim of constitutionally inadequate medical treatment, a prisoner must show the doctor "knew of and disregarded a substantial risk of serious injury or knew of and ignored serious need for medical care." The court concluded that the district court's grant of summary judgment was proper where Pronin presented no evidence of any medical condition the doctor should have been aware of, and failed to establish the doctor was even on duty during the relevant time period.

The court also noted that to prevail on his equal protection claim, Pronin must show that he was "treated differently from others with whom he is similarly situated and the unequal treatment was the result of intentional or purposeful discrimination." Pronin alleged that a Hispanic corrections officer violated his equal protection rights when she removed Pronin, who is Jewish, from his cell after an altercation with his cellmate but allowed the cellmate, who is Hispanic, to remain in the cell. Because Pronin failed to present any evidence of the officer's discriminatory intent or evidence that he and his cellmate are similarly situated, the court affirmed the district court's grant of summary judgment. The court found no other basis for reversal.

To read the full text of this opinion, please click here.

Panel: Judges Motz, Floyd, and Harris

Argument Date: 8/20/2015

Date of Issued Opinion: 10/7/2015

Docket Number: Case No. 15-6534

Decided: Affirmed in part, vacated and remanded in part by unpublished opinion

Case Alert Author: Monica Basche, Univ. of Maryland Carey School of Law

Counsel: Dmitry Pronin, Appellant Pro Se. Barbara Murcier Bowens, Assistant United States Attorney, Columbia, South Carolina, for Appellees.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/28/2015 04:02 PM     4th Circuit     Comments (0)  

October 19, 2015
  United States v. Hunt -- Fourth Circuit
Headline: Hypothetical Isn't Helpful: Fourth Circuit Remands Hunt's Case to Ensure Sentencing Enhancements Were Supported By Facts

Areas of Law: Criminal Law

Issue Presented: Whether a defendant's prior convictions should be re-examined to determine if the trial court impermissibly considered hypothetical sentence enhancements.

Brief Summary: Bobby Ray Hunt was subjected to a sentence enhancement under the Armed Career Criminal Act (ACCA) based on the district court's assessment of his prior criminal conduct. In an unpublished per curiam opinion, the United States Court of Appeals for the Fourth Circuit found that Hunt's sentence should be reconsidered because of the court's decision in United States v. Newbold. Hunt had two prior convictions in 1987 that were used by the government to justify giving him a longer sentence for his 2012 conviction. The Fourth Circuit held Hunt's sentence should be reconsidered to determine whether these 1987 convictions were serious drug offenses under the ACCA.

Extended Summary: In 1987, Bobby Ray Hunt was convicted of possession with intent to distribute and delivery of controlled substances. Hunt was also convicted of burning a house, and has two 1988 convictions for possession of marijuana with intent to deliver. These prior convictions became relevant in 2012, when Hunt pled guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). In the 2012 case, the district court found Hunt's three previous convictions qualified him for increased sentencing penalties under the Armed Career Criminal Act (ACCA). As such, the district court sentenced Hunt to 180 months of incarceration.

The ACCA mandates that an individual who is convicted of violating § 922(g) and has three prior convictions for either "violent felonies" or "serious drug offenses" must be given the statutory minimum sentence of 180 months in prison. The test for whether a conviction qualifies as a violent felony or a serious drug offense turns on the maximum potential penalty that an individual could have received at sentencing. In the present case, Hunt challenged the sentencing court's decision to consider his 1987 convictions for possession with intent to deliver and delivery of controlled substances, arguing that neither qualified as a serious drug offense under the ACCA.

In 2012 the Fourth Circuit decided United States v. Simmons. Simmons held that a man's first-time conviction for non-aggravated possession of marijuana should not have been considered when sentencing him under the Controlled Substances Act. This was because the trial court considered hypothetical sentencing enhancements to determine the maximum penalty for the aforementioned offense. Simmons established that when considering whether a prior conviction qualifies an individual for sentencing enhancement in a subsequent incident, the court must consider the actual penalties sought by prosecutors and not hypothetical enhancements that could have been pursued but were not.

Hunt filed a challenge to his sentence based on Simmons that was denied by the district court. However, while his appeal of that denial was pending before the Fourth Circuit, the court decided United States v. Newbold. The Fourth Circuit in Newbold recognized that the principle of Simmons applied to prior offense schemes under the ACCA, and that in Newbold's case the original offense did not qualify the defendant for an enhanced sentence. The sentencing court in Newbold did not articulate sufficient aggravating factors to prove the conviction was punishable by more than the default three-year tem. Because of this, the Fourth Circuit vacated the sentence and returned Newbold's case to the district court.

Based on the reasoning from Newbold, the Fourth Circuit in this case vacated Hunt's sentence, holding that "in light of [the holding in Newbold] we conclude that the district court should reconsider its determinations that Hunt's 1981 convictions were not serious drug offenses under the ACCA and that Hunt's 1987 convictions were serious drug offenses." Hunt's case will now return to the district court to examine whether the original convictions were properly considered in his current sentence.

To read the full text of this opinion, please click here.

Panel: Judges Shedd, Agee and Davis

Argument Date: N/A

Date of Issued Opinion: 09/10/2015

Docket Number: Case No. 14-6703

Decided: Vacated and remanded to the district court

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: Thomas P. McNamara, Federal Public Defender, Halerie F. Mahan, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Shalika S. Kotiya, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/19/2015 11:07 AM     4th Circuit     Comments (0)  

October 7, 2015
  Parker v. Stevenson, et al. -- Fourth Circuit
Headline: Individual Without Attorney Presents Viable Claim: Excessive Force Claim Reconsidered Where Lower Court's Sole Focus Was Severity of Injury

Areas of Law: Civil Procedure, Eighth Amendment

Issue Presented: Whether the district court erred in dismissing appellant's excessive force, cruel and unusual punishment, and deliberate indifference claims.

Brief Summary: In a per curiam opinion, the United States Court of Appeals for the Fourth Circuit vacated and remanded for further proceedings appellant Rodney Parker's excessive force claim within his civil complaint for deprivation of rights filed under 42 U.S.C. §1983.

Extended Summary: In 2012, in the U.S. District Court for the District of South Carolina, Rodney Parker filed a § 1983 civil action for deprivation of rights. The complaint raised Eighth Amendment excessive force, cruel and unusual punishment, and deliberate indifference claims against individuals at his prison, including the Warden, as well as several sergeants, officers, and a nurse. Specifically, Parker alleged (1) that an extraction team of correctional officers beat him and used excessive force when removing him from his cell and placing him in a restraint chair; (2) that his placement in a control cell without clothing, utensils, bedding, or a mattress for an extended period of time constituted cruel and unusual punishment and deliberate indifference; and (3) that the prison officials were deliberately indifferent for not providing adequate medical care for swelling in his lower extremities.

The district court granted summary judgment for the Defendants, and in doing so, drew the following conclusions: (1) the extraction team used reasonable force to remove Parker; (2) the record did not show that the extraction team beat Parker, (3) putting Parker in a control cell was reasonable given his prior conduct and prison violations, (4) the medical records showed Parker had been evaluated repeatedly for his condition, and (5) Eleventh Amendment immunity barred Parker's claims against Defendants in their official capacities.

On review, the United States Court of Appeals for the Fourth Circuit affirmed the grant of summary judgment on Parker's cruel and unusual punishment claim, as well as his deliberate indifference claim. However, the court vacated and remanded Parker's excessive force claim, finding significant error by the magistrate judge.

First, the court held there were several errors in the magistrate judge's report with regard to Parker's excessive force claim. The court highlighted that the magistrate judge used a standard that incorrectly considered "the extent of the injury inflicted." The court explained there was no "significant injury" threshold to be met in the instant case. Even where there is only a minor injury, an excessive force claim may proceed if there is a showing of malicious and sadistic use of force. As a result, the court vacated and remanded Parker's claim for further consideration.

On remand, the lower court should consider (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) any efforts made to temper the severity of a forceful response. The court went on to emphasize that the extent of Parker's injury is just one, rather than the sole factor, to consider in analyzing his excessive force claim. The court additionally stressed that the district court should view the facts and inferences from the record in the light most favorable to Parker, as he is the non-moving party.

To read the full opinion, click here.

Panel: Judges Agee, Diaz, and Davis

Argument Date: 08/31/2015

Date of Issued Opinion: 09/23/2015

Docket Number: Case No. 15-6613

Decided: Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: Rodney Parker, PRO SE, for Appellant. Drew Hamilton Butler, RICHARDSON PLOWDEN & ROBINSON, P.A., Charleston, South Carolina, for Appellees. Carmen Vaughn Ganjehsani, RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina, for Appellees. Caleb Martin Riser, RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina, for Appellees.

Author of Opinion:
Per curiam

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/07/2015 09:41 AM     4th Circuit     Comments (0)  

October 6, 2015
  United States v. Ductan -- Fourth Circuit
Headline: The Ductan Rule: Counsel, Whether You Want It or Not?

Issue Presented: Whether the district court violated the applicant's Sixth Amendment right to counsel when it (1) required him to proceed pro se after finding he forfeited his right to counsel, and (2) subsequently removed him from the courtroom and chose a jury in his absence.

Brief Summary: In April 2004, a confidential informant told the Charlotte Police ("CMPD") that Phillip Ductan had offered to sell him 100 pounds of marijuana. CMPD set up a controlled buy at a Cracker Barrel in Charlotte. On the day of the controlled buy, as CMPD officers approached the vehicle, Ductan threw his firearm on the ground and attempted to flee. In September 2004, a federal grand jury indicted Ductan on 3 counts: (1) conspiracy to possess with intent to distribute marijuana (in violation of 21 USC §846); (2) possession with intent to distribute marijuana and aiding and abetting the same (21 USC §§ 841 and 18 USC § 2); and (3) carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 USC § 924(c)(1)).

Ductan initially obtained private counsel to represent him on the charges, but counsel filed a motion to withdraw, citing Ductan's lack of cooperation and communication. At a hearing on counsel's motion, the magistrate judge asked Ductan whether he wished to hire a new attorney or instead wanted the court to appoint counsel. Ductan complained about the difficulties of finding counsel while incarcerated, but stated he didn't want to represent himself. When the magistrate judge pressed Ductan to choose whether to hire private counsel, have a court appointed counsel, or proceed pro se, Ductan began to make "nonsense statements," including "nonsense responses" to the judge when the judge asked Ductan if he was under the influence of drugs or alcohol. The judge explained to Ductan that "by making nonsensical statements [you're] found to have waived the right to counsel." The judge also directed the federal public defender to appoint standby counsel.

The case thereafter proceeded to trial. During voir dire, Ductan interrupted the court and kept making statements that made no sense. The magistrate judge had Ductan removed from the courtroom. Ductan was placed in a holding cell where he could watch and hear what was going on, but could not participate. Standby counsel was introduced to the jury, but not as counsel for Ductan. Standby counsel also did not move to strike jurors or otherwise participate in the jury selection process. After Ductan's conviction, the U.S. Court of Appeals for the Fourth Circuit heard the case on review.

Adopting the Ninth Circuit's reasoning in United States v. Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004), the court first found that when a district court determines a defendant has validly waived his right to counsel and fails to object to a district court's finding of forfeiture, the appellate court should review the case de novo. In its per curiam opinion, the Fourth Circuit, focused solely on whether the district court violated the applicant's Sixth Amendment right to counsel when it required him to proceed pro se after finding he forfeited his right to counsel. The court held that the magistrate judge erred in concluding that Ductan forfeited his right to counsel.

The Sixth Amendment guarantees to criminal defendants the "assistance of counsel for [their] defense." That right "cannot be waived by his conduct." Instead, for a defendant to assert his or her right to self-representation, the defendant must do so by knowingly, intelligently, and clearly and unequivocally forgoing counsel after "being made aware of the dangers and disadvantages of self-representation." In light of these rules, the Fourth Circuit instructed district courts to proceed with appointed counsel "absent an unmistakable expression by the defendant that so to proceed is contrary to his wishes."

Applying the test to Ductan, the court found that he had not clearly and unequivocally chosen to proceed as a pro se litigant and that even if he did, the district court did not warn him about the dangers and disadvantages of proceeding pro se.

In his concurring opinion, Judge Diaz wrote separately to discuss whether the district court violated the applicant's Sixth Amendment right to counsel when it subsequently removed him from the courtroom and chose a jury in his absence. While Judge Diaz determined that the magistrate judge was right in removing Ductan from the courtroom, he further determined the magistrate erred in not appointing counsel in Ductan's absence. Judge Diaz found such an appointment imperative considering the importance of voir dire. As Judge Diaz wrote, "if a pro se litigant is not in the courtroom, no critical stage of the trial may be conducted in his absence without the appointment of counsel." Agreeing with the majority that the right to counsel cannot be waived by misconduct, Judge Diaz found that a pro se litigant might lose his right to be present by misconduct, so long as the court appointed counsel in his absence. Judge Diaz found this to be lacking in Ductan's case because nothing on the record indicated that standby counsel was "representing Ductan."

To read the full opinion, click here.

Panel: Judges Motz, Shedd, and Diaz

Argument Date: 05/13/2015

Date of Issued Opinion: 09/2/2015

Docket Number: No. 14-4220

Decided: Vacated and remanded by published opinion

Case Alert Author: Eric Suarez, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Erin E. Comerford, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee

Author of Opinion: Per Curiam; Judge Diaz (concurrence)

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/07/2015 at 09:34 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/06/2015 04:50 PM     4th Circuit     Comments (0)  

  Charles Lee v. Norfolk Southern Railway Co. -- Fourth Circuit
Headline: Railroaded? The Federal Railroad Safety Act's Election of Remedies Provision

Issue Presented: Whether the Federal Railroad Safety Act's Election of Remedies Provision bars a plaintiff from seeking protection for alleged wrongful suspension under employment discrimination law and the Federal Railroad Safety Act's whistleblower protection provision for the same suspension.

Brief Summary: This case arises out of two lawsuits brought by Charles Lee against the Norfolk Southern Railway Company. Lee was employed by Norfolk Southern as a carman. As a carman, Lee was responsible for examining railcars for safety defects while in the rail yard. Lee's two lawsuits both involve Norfolk Southern suspending him for six months without pay. The company alleged that it did so because Mr. Lee drank while on duty and operated the company vehicle without authorization. Lee asserted in one lawsuit that his suspension was racially motivated and in the other that he was suspended in retaliation for refusing to violate a federal law. The District Court granted summary judgment to Norfolk Southern as to both lawsuits and the Fourth Circuit reversed.

Extended Summary: Charles Lee was formerly employed by Norfolk Southern as a carman. He brought two lawsuits against the company due to his six-month suspension without pay. He first brought an action in the Federal District Court for the District of North Carolina against Norfolk Southern under 42 U.S.C. § 1981 claiming his suspension was racially motivated. Specifically, Lee - who is African-American - alleged that his white counterparts were promoted and/or given opportunities that he was not; that his white supervisor also drank on the job but was not punished; and that his co-workers made racially charged and intimidating threats (including placing a noose in his locker). This case was dismissed by the District Court because Lee did not follow the arbitration procedure required by the collective bargaining agreement nor was Norfolk Southern Railway liable for the independent actions of its employees (pertaining to the racially-charged threats).

Shortly thereafter, Lee brought a second suit in which he alleged his suspension was in retaliation for refusing to comply with company orders not to follow a federal law. Specifically, Lee claimed that as a carman, he was required to report each instance a railcar had a safety defect. He stated that Norfolk Southern limited the amount of cars he could designate as defective, a violation of the Federal Railroad Safety Act ("FRSA"), and his refusal to comply with the caps was the reason he was suspended. He initially filed this complaint with the Occupational Safety and Health Administration ("OSHA") Board, claiming whistleblower protection violations. That complaint was dismissed by the OSHA Board and he then filed it in Federal District Court under a "kick-out" provision. He filed this suit entirely separately from the § 1981 racial discrimination claim. The Federal District Court for the District of North Carolina granted summary judgment to Norfolk Southern because a specific provision, the Election of Remedies Provision, of the FRSA barred the suit. That provision bars employees from seeking protection under this section and another provision of law for the same allegedly unlawful act. The District Court interpreted that to mean that because he sought protection under § 1981 for the allegedly unlawful suspension, the Election of Remedies Provision barred his suit under the FRSA whistleblower protection provision.

Upon review, the U.S. Court of Appeals for the Fourth Circuit endeavored to interpret the meaning of the Election of Remedies Provision to determine if the trial court was correct in its ruling. Using basic principles of statutory interpretation, the Fourth Circuit concluded that the District Court erred in granting summary judgment to Norfolk Southern. Specifically, the court agreed with Lee's assertion that the Election of Remedies Provision did not apply because being suspended due to race and being suspended as retaliation for complying with federal law constituted different unlawful acts.

This was the first time the Fourth Circuit interpreted this provision of the FRSA. Going forward, employees suspended or terminated may not be barred by the Election of Remedies Provision from bringing suits based on the same act that is rendered different due to violation of two or more federal laws. The Fourth Circuit ultimately reversed the District Court and remanded for further proceedings.

To read the full opinion, click here.

Panel: Judges Niemeyer, Diaz, and Floyd

Argument Date: 05/12/2015

Date of Issued Opinion: 09/18/2015

Docket Number: No. 14-1585

Decided: Reversed and Remanded by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: William Cox Tucker, Jr., MAPLES TUCKER & JACOBS, Birmingham, Alabama, for Appellant. John Bruce Lewis, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellee. Donald J. Munro, JONES DAY, Washington, D.C., for Amicus Association of American Railroads. Rachel Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. ON BRIEF: Rachel S. Decker, CARRUTHERS & ROTH P.A., Greensboro, North Carolina, for Appellant. M. Daniel McGinn, Nicole A. Crawford, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina; Dustin M. Dow, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellee. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Megan E. Guenther, Counsel for Whistleblower Programs, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. Louis P. Warchot, Daniel Saphire, ASSOCIATION OF AMERICAN RAILROADS, Washington, D.C.; Ronald M. Johnson, M. Carter DeLorme, JONES DAY, Washington, D.C., for Amicus Association of American Railroads.

Author of Opinion: Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/06/2015 03:08 PM     4th Circuit     Comments (0)  

October 5, 2015
  SD3, LLC v. Black & Decker (U.S.) Inc. -- Fourth Circuit
Headline: Twombly's "Parallel Plus More" Rule Does Not Require a Heightened Standard of Review at the Motion to Dismiss Stage in Antitrust Cases

Areas of Law: Business Law, Antitrust Law

Question Presented: Whether the Twombly requirement to plead parallel conduct plus something more in a §1 Sherman antitrust conspiracy claim imposes a heightened probability standard at the motion-to-dismiss stage.

Brief Summary: This antitrust case hinges on the Fourth Circuit's reading of the 12(b)(6) motion to dismiss standard announced in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The majority found that a plaintiff need only plausibly allege parallel conduct by defendant companies in addition to specific details of conduct in furtherance of the conspiracy to survive a motion to dismiss.

The district court's decision to dismiss SawStop's group boycotting claim was vacated and remanded for further proceeding against only the companies that were specifically accused of participating in the boycott. Additionally, the district court's decision to dismiss all other defendants and all other claims was affirmed. The dissent countered that Twombly imposed a heightened plausibility standard (more akin to a probability inquiry) in antitrust cases. According to the dissent's reading of Twombly, SawStop was rightly dismissed by the district court because there was an obvious alternate explanation for means-based parallel conduct, and SawStop was unable to provide the level of detail necessary to satisfy the "plus more" requirement.

Extended Summary: In the 1990s, plaintiff-appellant SawStop's founder, Stephen Gass, created active injury mitigation technology ("AIMT") that stops and retracts the blade of a table-saw when it detects fingers. Gass and his co-inventors took their prototype to a trade show to pursue licensing agreements. SawStop attracted the interest of a number of table-saw manufacturers and soon began negotiations with four well-known companies. After negotiations fell apart, SawStop sued.

In a complaint filed in the district court, SawStop first alleged a "group boycott conspiracy." SawStop contended that the table-saw manufacturers made an agreement in October 2001 that either all of them would adopt the AIMT or none of them would in order to protect against product liability exposure. By 2002, manufacturers who were already negotiating with SawStop ended discussions for a variety of different reasons or no reason at all.

SawStop next alleged a "standard rejection conspiracy." Under this claim, SawStop argued that its failed attempts to change table-saw safety standards was due to table-saw manufacturers convincing members to vote as a block and prevent the AIMT proposal from being adopted.

Finally, SawStop alleged a "contrived standard conspiracy." Under this theory, SawStop maintained that the defendants conspired to develop safety standards that would impose unnecessary costs on SawStop and further prevent adoption of the AIMT.

Based on the above three conspiracies, SawStop filed a complaint in February 2014 in the U.S. District Court for Eastern District of Virginia against twenty-two separate table-saw manufacturer defendants, alleging violation of §1 of the Sherman Act. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion due to SawStop's lack of direct evidence to support its claims.

Reviewing the motion to dismiss de novo, the United States Court of Appeals for the Fourth Circuit panel accepted as true all well-pled facts in the complaint and construed them in the light most favorable to SawStop. The court found that SawStop did not make a factual showing that each defendant conspired in violation of the antitrust laws. Due to SawStop's failure to specify the ways in which particular defendants were involved in each of the alleged conspiracies, the court affirmed the dismissal on all counts against seven of the twenty-two defendants. Although separately alleged, both standard-setting conspiracies failed because the facts of SawStop's complaint did not demonstrate anything other than ordinary participation in lawful standard-setting processes.

As to the group boycotting conspiracy, SawStop was required, under Twombly, to (1) show parallel action and something "more" that indicates agreement and (2) anticompetitive harm. The court held that the district court erred in using a probability-focused standard to conclude that SawStop had not provided enough evidence to support its claim. The court explained that Twombly's requirement to plead something more than parallel conduct does not impose a probability standard at the motion to dismiss stage. While the law did require the plaintiff to surmount a "plausibly suggesting" threshold at the pleading stage, that hurdle is considerably less than the "tends to rule out possibility" standard for summary judgment. Thus, by alleging that each manufacturer eventually ended negotiations (or reached the same end goal) after the secret meeting, and providing details regarding the participants of the boycott, time, place, manner of boycott, and motive to boycott - the court found that the group boycott, when construed in the light most favorably for SawStop, was plausibly alleged.

The court remanded the case, however, on the issue of anti-competitive harm because it was inadequately briefed and the district court's opinion offered no guidance.

Judge Wynn, in a concurring opinion, praised the majority for exercising judicial restraint by addressing SawStop's complaint as written instead of dismissing SawStop's case for policy reasons. Pointing to specific facts in SawStop's complaint regarding secret meetings and other details, Judge Wynn reaffirmed the plausibility of SawStop's group boycotting claim while pointing out the ways in which he believed Judge Wilkinson's reading of Twombly to be incorrect.

In his dissent, Judge Wilkinson presented his position that an ends-based approach instead of a means-based approach to finding parallel action undermines Twombly. Here, the many companies that ended negotiations with SawStop did so at different times and provided a variety of practical and legal explanations for their actions. Reading Twombly to require a heightened plausibility standard in antitrust cases, Wilkinson wrote that a plaintiff alleging a §1 violation of the Sherman Act fails to adequately plead his claim if there is an obvious, unrebutted alternative explanation for the defendant's conduct. Judge Wilkinson asserted that the majority, in his view, made mere communication the touchstone of liability in antitrust cases - creating a chilling effect amongst companies and rewarding the least marketable products with the greatest possibility of litigation success.

To read the full opinion click here.

Panel: Judges Agee, Wynn, and Wilkinson

Argument Date: 05/12/2015

Date of Issued Opinion: 09/15/2015

Docket Number: No. 14-1746

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Nakisha Small, Univ. of Maryland Carey School of Law

Counsel: Joel Davidow, CUNEO GILBERT & LADUCA, LLP, Washington, D.C., for Appellants. James Scott Ballenger, LATHAM & WATKINS, LLP, Washington, D.C., for Appellees. ON BRIEF: Jonathan W. Cuneo, Matthew E. Miller, CUNEO GILBERT & LADUCA, LLP, Washington, D.C., for Appellants. John D. Harkrider, Richard B. Dagen, AXINN, VELTROP & HARKRIDER LLP, Washington, D.C., Bernard J. DiMuro, DIMURO GINSBERG PC, Alexandria, Virginia, for Appellees Stanley Black & Decker, Incorporated, Black & Decker (U.S.) Incorporated, and Black & Decker Corporation; Christopher S. Yates, Christopher B. Campbell, Aaron T. Chiu, LATHAM & WATKINS LLP, San Francisco, California, for Appellee Emerson Electric Company; Paul Devinsky, Stefan M. Meisner, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Appellees Hitachi Koki USA Ltd. and Hitachi Koki Co., Ltd.; Lee H. Simowitz, Elizabeth A. Scully, Katherine L. McKnight, BAKER & HOSTETLER LLP, Washington, D.C., for Appellees Makita USA Incorporated and Makita Corporation; David M. Foster, Washington, D.C., Layne E. Kruse, Eliot Fielding Turner, FULBRIGHT & JAWORSKI LLP, Houston, Texas, for Appellees Robert Bosch Tool Corporation and Robert Bosch GmbH; James G. Kress, BAKER BOTTS L.L.P., Washington, D.C., Scott W. Hansen, Steven P. Bogart, James N. Law, REINHART BOERNER VAN DEUREN S.C., Milwaukee, Wisconsin, for Appellees Milwaukee Electric Tool Corporation, One World Technologies, Incorporated, OWT Industries, Incorporated, Ryobi Technologies, Incorporated, Techtronics Industries Co., Ltd., and Techtronic Industries North America, Incorporated. Seth D. Greenstein, David D. Golden, CONSTANTINE CANNON LLP, Washington, D.C., for Amici Curiae.

Author of Opinion: Judge Agee

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/05/2015 04:17 PM     4th Circuit     Comments (0)  

  Dixon v. Foot Locker et al. -- Fourth Circuit
Headline: Hoop Dreams Broken as Pro Se Litigant Fails to Score Against Foot Locker and Nike

Areas of Law: