Wake Forest Law Review

Weekly Roundup 10/9-10/13
By: Evan Reid & Ashley Collette

United States v. Salmons
In this criminal case, the defendant appealed the district court’s decision, which found his prior crime of aggravated robbery was a predicate crime under the force clause of U.S.S.G.§ 4B1.2, thus requiring a longer minimum sentence. The Fourth Circuit affirmed the judgment of the district court, holding that aggravated robbery was categorically violent.

Fawzy v. Wauquiez Boats SNC
In this admiralty and maritime case, the plaintiff appealed the district court’s decision dismissing the case for lack of jurisdiction. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the plaintiff had filed an amended complaint prior to the court’s dismissal of the case.

Lucero v. Early
In this First Amendment case, the plaintiff appealed the district court’s decision dismissing his claim challenging the constitutionality of a protocol that he was arrested for violating. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding the district court did not consider all relevant facts and law in determining whether the protocol was content neutral.

Siena Corporation v. Mayor and City Council of Rockville, Maryland
In this civil case, the plaintiff appealed the district court’s dismissal of its claim that the City Council violated its constitutional rights when it passed a zoning amendment prohibiting the construction of a self-storage facility based on its proximity to a school. The Fourth Circuit affirmed the dismissal, holding that the plaintiff did not have a constitutionally-protected property right.

Gold

By Eric Benedict

Overview

On June 22, 2015, the Fourth Circuit issued its published opinion in the civil case, Recovery Limited Partnership v. Wrecked & Abandoned Vessel S.S. Central America. In Recovery Limited Partnership, the Fourth Circuit had to decide if an attorney who withdrew as counsel for a client could subsequently make a salvage claim, adverse to the client, after returning client documents. The Fourth Circuit held that attorneys who no longer represent their client have a pre-existing duty to return the documentation under the Rules of Professional Conduct and affirmed the District Court’s dismissal.

Recovery Partnership and the Hunt for Treasure

In 1857, the S.S. Central America Sank off the coast of South Carolina. The vessel was carrying a large quantity of gold when it sank, prompting a search for the wreckage. In 1980, Columbus-America Discovery Group (“CADG”), who was and agent for Recovery Partnership, located the wreckage and a federal court granted CADG salvage rights. During the course of the recovery, the Robol Law Office, LLC served as counsel for CADG and defended it against competing claimants. In addition, the firm leased space to a related business, EZRA Inc., which was tied to the salvage operation, to store documents and other materials relating to the salvage. EZRA would later default on the lease payments.

In 2013, some of the companies tied to the operation were placed into receivership, due to the disappearance of some of the recovered gold. The Receiver was ordered to collect the companies’ property from all parties, including attorneys. The Robol’s firm responded by giving the Receiver thirty-six file cabinets of documentation related to the companies. Robol later withdrew as counsel and filed an admiralty action for a salvage award.

Robol Claims a Right to a Salvage Award

Robol claimed that he was entitled to a salvage award. The Court explained that a Salvage Award is, “[C]ompensation to persons ‘by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part…” Robol claimed that because his firm voluntarily turned over the documentation in its possession, and because that information was valuable to the salvage efforts, he was entitled to the award. Robol asserted that the action was voluntary for a number of reasons. First, Robol claimed that CADG and EZRA owed past due attorney’s fees, which gave him a possessory interest in the documents through a retaining lien. Second, Robol claimed that because EZRA defaulted on the lease agreement, he was entitled to repossession of the contents of the leased space. Finally, Robol contended that he was instrumental in getting other parties to return documents to the Receiver. After the United States District court for the Eastern District of Virginia granted a motion to dismiss, Robol appealed to the Fourth Circuit for review.

The Fourth Circuit Rejects Robol’s “Voluntary” Acts

The Fourth Circuit reasoned that Robol was not entitled to a retaining lien, and therefore did not have a possessory interest in the documentation. Judge Niemeyer found two basis for rejecting the retaining lien claim. First, the relevant jurisdictions, Ohio and Virginia each maintain Rules of Professional Conduct that prohibit retaining liens and require a discharged attorney to turn over files to the client. Second, Judge Niemeyer observed that even if a retaining lien were available, it would not be appropriate “where doing so would cause foreseeable prejudice to the client.” Due to Robol’s testimony that the documents he provided saved the companies over $600,000, the court had little difficulty finding that withholding the documents would have caused foreseeable harm.

Next, the Court addressed Robol’s claim that the default on the lease gave him ownership of the documents. First, the court noted that, absent a clause providing for self-help in the lease, Robol had no legal right to self-help repossession. Second, Robol had completed an affidavit which admitted the documents were not his, but belonged to the companies. Next, the court noted that Robol willingly complied with the Receiver’s order to turn over the documents, without asserting any ownership rights. Finally the court emphasized that any claim under the defaulted lease was still subject to Robol’s duty to his former client.

Last, the Court refuted Robol’s argument that he convinced others to hand over important documentation. The Court, citing the record, concluded that the act was not voluntary because the conduct in question occurred while Robol was still counsel of record for the companies and because the documentation was already subject to the Receiver’s order.

In dicta, the Court also cast doubt on the appropriateness of Robol’s claim, citing the close relationship of an attorney with his or her client and the potential for a conflict of interest.

The Fourth Circuit Affirms District Court’s Dismissal

After a de novo review of the legal issues before them, the Circuit unanimously affirmed the District Court’s dismissal.

By Lauren Emery

Plaintiff Challenges District Court’s Finding of No Cause of Action in NATO’s Intentional Sinking of a Fishing Vessel and Unintentional Killing of its Owner

In Wu Tien Li-Shou v. United States, a published civil opinion released on January 23rd, the Fourth Circuit considered whether the intentional sinking of a fishing boat and the accidental killing of its owner presents a justiciable claim.  Wu Tien Li-Shou (Wu), a citizen of Taiwan, seeks damages from the United States for the killing of her husband and the destruction of his ship.

Taiwanese Fishing Boat, Taken Hostage by Somali Pirates, Attacked by NATO

Since the summer of 2009, the North Atlantic Treaty Organization (NATO) has conducted Operation Ocean Shield in the Gulf of Aden and the Indian Ocean in response to the threat posed by Somali-based piracy on global shipping.  On May 10, 2011, as part of Ocean Shield, the USS Groves engaged the Jin Chun Tsai (JCT), a Taiwanese fishing ship.  More than a year earlier, the ship had been hijacked by Somali pirates who used the skiffs stored on board to launch attacks.  More than two dozen pirates held three crew members hostage including the master and owner of the ship, Wu Lai-Yu (Master Wu).  After almost an hour of firing on the JCT, the pirates indicated their surrender and a special team from the USS Groves boarded the ship.  The team found three pirates dead along with Master Wu in his sleeping quarters “with the crown of his head shot off.”  The next day that USS Groves intentionally sunk the JCT with Master Wu’s body on board.

Military Engagement with Taiwanese Ship Does Not Provide a Justiciable Claim

The Fourth Circuit affirmed the district court’s finding that NATO’s actions presented a non-justiciable political question.  Furthermore it held, that even if there was subject matter jurisdiction over the case, Wu’s claims “would be ‘futile’ in light of the discretionary function exception to any waiver of the government’s sovereign immunity from suit.”

Claims Against NATO Actions Barred by Political Question Doctrine and Sovereign Immunity Exception

The Fourth Circuit found that Wu’s suit presented a political question because it would require the court to intervene in the middle of a “sensitive multinational counter-piracy operation” and to “second-guess the conduct of a military engagement.”  It claimed, “Wu would have us sit astride the top of the command pyramid and decree the proper counter-piracy strategies and tactics to the NATO and American commanders below.”  The court declared that such an action would violate the doctrine of separation of powers by demanding the judicial branch intervene in a dispute which is best suited for resolution by a coordinate branch of government.  Furthermore, it stated that matters of national security and defense are the most clearly marked areas for judicial deference.

On appeal, Wu claimed that both the Suits in Admiralty Act (SIAA) and the Public Vessels Act (PVA) waive sovereign immunity for in personam admiralty suits.   While neither statute contains an explicit exception to the scope of its waiver, the court declared that common law precedent recognizes that, “the SIAA must be read to include a discretionary function exception to its waiver of sovereign immunity” which is grounded in separation of powers concerns.  The Fourth Circuit explained that, because the separation of powers is a constitutional doctrine, courts must recognize it even in the absence of an explicit statutory command.  It claimed that this logic can also be extended to imply a discretionary function exception in the PVA.  The court further stated that “conduct of a military engagement is the very essence of a discretionary function” and therefore falls squarely within the exception to the SIAA’s and PVA’s sovereign immunity waiver.  Even if the NATO and American commanders abused their discretion in their engagement, the fact that the function is discretionary “ab initio exempts those choices from judicial review.”