Wake Forest Law Review

By Sophia Pappalardo & Kenya Parrish

In re: Murphy-Brown, LLC

In this civil case, the Petitioner requested mandamus relief from a gag order issued by the United States District Court for the Eastern District of North Carolina. The gag order imposed strict requirements on participants and potential participants of interrelated nuisance suits brought against hog farms in North Carolina. The Fourth Circuit found the district court’s order to be defective and granted the petition. Thus, the Fourth Circuit directed the district court to vacate the gag order and allow the parties to begin their suits again under guidelines set forth by the Fourth Circuit, but only if warranted by exceptional circumstances.

 

By Elliott Beale and Cassidy Webb

Samuel James Ervin III was born on March 2, 1926 in Morganton, North Carolina.[1] Judge Ervin joined the U.S. Army and served as a lieutenant from 1944 to 1946.[2] After Judge Ervin earned his Bachelor of Science from Davidson College in 1948, he received his LL.B. from Harvard Law School in 1951.[3] Following another two year stint in the U.S. Army, Judge Ervin returned to Morganton to work in private practice.[4] Judge Ervin worked at Patton, Ervin, and Starnes, where he became associated in 1957.[5] While working in private practice, Judge Ervin served as a solicitor for the Burke County Board of Commissioners from 1954 to 1956 and North Carolina State Representative from 1965 to 1967.[6] Governor Dan K. Moore named Judge Ervin to fill a vacancy on the North Carolina Superior Court for the 25th Judicial District in July 1967.[7] Judge Ervin served on the North Carolina Superior Court until 1980.[8]

On April 2, 1980, President Jimmy Carter nominated Judge Ervin to a new seat on the U.S. Court of Appeals for the Fourth Circuit.[9] He was confirmed by the Senate on May 21, 1980 and received his commission on May 23, 1980.[10] He served as Chief Judge of the Fourth Circuit from 1989 to 1996.  While serving as Chief Judge, Judge Ervin was also a member of the Judicial Conference of the United States from 1989 to 1995.[11] His service terminated on September 18, 1999 upon his death.[12]

One of the most interesting cases Judge Ervin said he presided over as a North Carolina judge was when the court effectively rewrote James B. Duke’s, founder of Duke Power, will.[13] Judge Ervin had to determine what Duke would have done with the dispositional investment his foundation had in Duke Power Company had Duke known about the Tax Reform Act at the time he made his will.[14] Judge Ervin also presided over one of the first inverse condemnation cases in Charlotte.[15] He had to determine whether airplanes could inversely condemn the property by flying at low altitudes regularly over people’s houses and if this enabled the individuals to recover damages for their property’s loss of value.[16]

Following his death, Judge James Dickson Phillips, Jr. fondly remembered Judge Ervin as the “very model of prudence and temperance, of fortitude and fairness.”[17] Judge Phillips described Judge Ervin as a man who wore no masks and acted with integrity, courtesy, and civility in all circumstances.[18]

Judge Ervin was survived by his wife, two daughters, and two sons.[19] His sons, Samuel “Jimmy” Ervin IV and Robert C. Ervin, both followed in their father’s footsteps and became judges.[20] Judge Ervin IV currently serves as an Associate Justice of North Carolina Supreme Court, and Judge R. Ervin currently serves as a North Carolina Superior Court judge.[21] Judge Ervin IV says one of the biggest lessons his father taught him “was to remember that behind any case that comes before the court there are real people with real problems whose lives will be substantially affected by what the members of the court do.”[22]

 

 

[1]Ervin, Samuel James III, Fed. Jud. Ctr., https://www.fjc.gov/node/1380526 (last visited Oct. 23, 2018).

[2]Id.

[3]Id.

[4]Id.

[5]Jimmy Rhyne, 50 Years Ago, News Herald (Jul. 10, 2017), https://www.morganton.com/townnews/law/years-ago/article_30f8f7a0-6586-11e7-8b89-b33a295af7d6.html.

[6]Fed. Jud. Ctr., supra note 1.

[7]Rhyne, supra note 5.

[8]Fed. Jud. Ctr., supra note 1.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13]Interview by Hilary L. Arnold with Judge Sam J. Ervin III, Chief Judge of the Fourth Circuit, in Morganton, NC, (Feb. 24, 1993 & Apr. 8, 1993), https://dc.lib.unc.edu/cdm/ref/collection/sohp/id/12622.

[14]Id.

[15]Id.

[16]Id.

[17]James D. Phillips, Jr., Sam J. Ervin III: A Tribute, 78 N.C. L. Rev. 1705, 1706 (2000).

[18]Id.

[19]Samuel James Ervin 3d, 73 Federal Judge, N.Y. Times (Sept. 21, 1999), https://www.nytimes.com/1999/09/21/us/samuel-james-ervin-3d-73-federal-judge.html.

[20]Sharon McBrayer, Taking the Bench: Sam Ervin Sworn in as NC Supreme Court Judge, News Herald (Jan. 8, 2015), https://www.morganton.com/news/taking-the-bench-sam-ervin-sworn-in-as-nc-supreme/article_44c98846-9796-11e4-a117-f7ef4aff205c.html.

[21]Id.

[22]Id.

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

By Mackenzie Bluedorn and Jacqueline Canzoneri

Relevant Facts

This case began as an age discrimination claim.  The Equal Employment Opportunity Commission (“EEOC”) initially challenged that Baltimore County’s (“County”) retirement plan violated the Age Discrimination in Employment Act (“ADEA”) because its age-based contributions required older employees to pay higher percentages of their salaries.[1]  When adopting its retirement benefit plan in 1945, the County stated that employees were eligible to retire and receive pension benefits at the age of 65, no matter how long the individual had actually been employed and contributing the plan.[2] Because the payments of an employee who joined the plan at an older age would accrue less interest than payments made by younger employees before the employees actually started to draw from the fund, the County determined that older employees should be charged higher rates.[3] Although the retirement benefit plan was amended several times over the years, the different contribution percentages based on age were never fully eliminated.[4] In response to this policy, the EEOC first brought civil suit in the District Court of Maryland in 2007, requesting injunctive relief to bar the discriminatory contribution percentages and reimburse employees subject to the age discrimination through back pay.[5]

 

Procedural Posture

This opinion was the third issued in a series of appeals for this case.  In 2010, the court of appeals initially reversed and remanded the district court’s holding in favor of Baltimore County, prompting the district court to reconsider whether the retirement benefit rates violated the ADEA.[6]  The issue once again reached the court of appeals for opinion in 2014. The second time, the district court had determined that the rates were impermissible and granted partial summary judgment on liability in favor of the EEOC, but the court of appeals then remanded again for consideration of damages.[7]  Although the parties had entered into a consent order for injunctive relief, the order did not discuss monetary relief and stated that the issue would be considered on a later date.[8]

The case then reached the court of appeals for a third time in 2018 after the EEOC appealed the district court’s determination on damages that it had discretion to deny an award of back pay otherwise afforded under the ADEA.  In reaching its decision, the district court held that it had discretion over whether or not to award that remedy or, in the alternative, that even if back pay were mandatory under enforcement of the ADEA, the court’s equitable powers still granted it the authority to deny back pay because the EEOC delayed so long in originally bringing this case.[9] The underlying issue for the court of appeals to consider on this third appeal was under the ADEA, is the monetary award of retroactive back pay discretionary, after liability has been established.

 

Plaintiff-Appellant Argument: Equal Employment Opportunity Commission (“EEOC”)

While Baltimore County grounded its argument in statutory language of the ADEA, the EEOC highlighted specific Fair Labor Standards Act (“FLSA”) provisions that have been incorporated into the ADEA.[10]  Most notably, the ADEA adopted the FLSA provision that violators “shall be liable” for back pay.[11] The EEOC argued that because back pay is a mandatory legal remedy under the FLSA, and because the ADEA adopted this language, it is not a discretionary issue. The choice of language reflected Congress’ intent that remedies under both of these statutes should be construed in the same manner. Thus, the District Court lacked discretion to determine whether back pay was owed.

 

Defendant-Appellee Argument: Baltimore County (“County”)

Baltimore County argued that back pay was properly denied because the district court is granted wide authority under the ADEA.  Specifically, the County claimed that the court has broad authority under 29 U.S.C. § 626(b) “to grant such legal or equitable relief as may be appropriate,” which could include the denial of back pay.[12]  Under broad authority, the court should be allowed to determine appropriate remedies, similar to the discretionary nature of back pay under Title VII. The County tried to expand precedent, by relying on various United States Supreme Court cases regarding Title VII pension issues.[13]  In those cases, the Court held that retroactive monetary awards are discretionary under Title VII and did not award any retroactive monetary relief.[14]

As the district court itself determined following the second remand of this case, it would be equitable to deny back pay in this instance, even if it were mandatory under the ADEA, because the EEOC had delayed initiating this suit for years.[15]  The County emphasized the long delay in the EEOC’s action, which led to the County incurring substantially more liability in back pay.[16]

 

Holding & Rationale

The Court of Appeals for the Fourth Circuit agreed with the EEOC’s interpretation of the ADEA’s language and concluded that retroactive monetary award of back pay is mandatory, not discretionary, upon the finding of liability.  The initial matter of liability was already decided through issuance of partial summary judgment in favor of the EEOC following the first remand of the case. To assess the statutory language of the ADEA, the court considered the plain language of the statute, congressional intent, United States Supreme Court precedent, and legislative history.

The court addressed the plain language of enforcement under 29 U.S.C. § 626(b).  As a threshold matter, the court stated that the ADEA was a remedial statute and therefore warrants liberal interpretation. Furthermore, because specific FLSA language regarding back pay was incorporated into the ADEA enforcement provision, interpretation of the provision should mirror prior interpretations of the relevant back pay provisions in the FLSA.[17]  As such, under the FLSA, retroactive monetary damages are considered mandatory. Thus, by extension, there was an apparent congressional intent that such damages should also be mandatory under the ADEA.[18]

In regard to relevant precedent, the court’s touchstone of inquiry was a United States Supreme Court case, Lorillard v. Pons,[19] where the Court applied a similar analytical framework while interpreting another portion of the ADEA.[20]  There, the Court stated that since the ADEA adopted specific FLSA language, it should be interpreted as its original counterpart was interpreted.[21] The Fourth Circuit also rejected the County’s reliance on the Title VII pension cases because there, back pay was an equitable remedy, whereas here under the ADEA, back pay would be a legal remedy.[22]

Next, the court considered legislative history.  While drafting the enforcement clause of the ADEA, Congress was faced with various potential enforcement mechanisms.[23]  Ultimately, Congress specifically chose to incorporate FLSA remedial measures into the ADEA.[24] This conscious decision of incorporation, and rejection of other options, is relevant legislative history that assists with judicial interpretation of statutory language.[25]

Finally, the court next addressed the district court’s alternative holding that, even if the statutory language indicated back pay was mandatory, the court still had discretion through its equitable powers.  The court of appeals fully rejected the district court’s comparison of the ADEA to Title VII, under which the Supreme Court had held that retroactive monetary awards were, in fact, discretionary.[26] The court of appeals explained that an award of back pay under Title VII was up to a court’s discretion because it was an equitable remedy; under the ADEA, however, back pay was a legal remedy, and only the amount of back pay was open-ended, to be determined at the discretion of the factfinder.[27]

 

Conclusion

The district court’s opinion was vacated and remanded for the consideration of the amount of back pay owed to the affected employees under the ADEA.

 

 

[1] EEOC. v. Baltimore Cty., 747 F.3d 267, 1–2 (4th Cir. 2014).

[2] Id. at 3.

[3] Id. at 4–5.

[4] Id. at 6.

[5] Id. at 7.

[6] EEOC. v. Baltimore Cty., No. 16-2216, 2018 U.S. App. LEXIS 26644, at *2 (4th Cir. Sept. 19, 2018).

[7] Id.

[8] Id.

[9] Id. at *2–*3.

[10] Id. at *4–*5.

[11] Id. at *5.

[12] Id. at *3.

[13] Id. at *9.

[14] Id.

[15] Id. at *3.

[16] Id. at *11.

[17] Id. at *5–*6.

[18] Id. at *7.

[19] 434 U.S. 575 (1978).

[20] Baltimore Cty., 2018 U.S. App. LEXIS 26644, at *8.

[21] Id.

[22] Id. at *10.

[23] Id. at *8.

[24] Id. at *9.

[25] Id.

[26] Id. at *10.

[27] Id.

 

 

 

 

 

By: Thomas Cain & Noah Hock

Equal Employment Opportunity Commission v. Baltimore County

In this case, the Equal Employment Opportunity Commission (“EEOC”) sought back pay for employees based on Baltimore County’s discriminatory practice involving improper contribution rates to the county’s age-based employee benefit plan. The district court found the county liable under the Age Discrimination in Employment Act (“ADEA”) and granted the EEOC partial summary judgment, but it denied a motion for back pay because the EEOC’s undue delay in investigating substantially increased the county’s back pay liability. The Fourth Circuit vacated the district court decision, ruling that an award of back pay is mandatory under the ADEA after a finding of liability. Thus, the case was remanded for a determination of back pay amounts to which affected employees are entitled.

By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

Schilling v. Schmidt Baking Company, Inc.

In this civil case, plaintiffs appealed the district court’s dismissal of their claims for overtime wages under the Federal Labor Standards Act (FLSA), the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law.  Under the FLSA, professional motor carriers, like Schmidt Baking Company, are generally exempt from the overtime wages requirement.  However, Congress recently waived this exemption for employees whose work affects the safety of vehicles weighing 10,000 pounds or less.  In concluding that the plaintiffs were protected by the FLSA waiver, the Fourth Circuit reversed the district court’s dismissal of the FLSA claims but affirmed the court’s dismissal of the claims brought under Maryland law.

Juniper v. Zook

In this criminal case, Anthony Juniper appealed the district court’s denial of his request for an evidentiary hearing concerning his claim that prosecutors failed to turn over exculpatory and impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).  The Fourth Circuit vacated the district court’s decision as to Juniper’s Brady claim, concluding that the district court abused its discretion by dismissing the claim without an evidentiary hearing.  The case was remanded to the district court for further proceedings.

Hensley v. Price

In this civil case, Deputies Michael Price and Keith Beasley appealed the district court’s denial of their motion for summary judgment, which asserted federal qualified immunity and related North Carolina state law defenses.  The Fourth Circuit affirmed the district court’s judgment, concluding that the deputies were not entitled to qualified immunity because their use of force was objectively unreasonable under the circumstances described through plaintiffs’ evidence.  In addition, the Fourth Circuit concluded that the deputies’ related state law defenses failed under the evidence taken in the light most favorable to the plaintiffs.         

OpenRisk, LLC v. Microstrategy Services Corp.

In this criminal case, OpenRisk appealed the district court’s grant of summary judgment in favor of Microstrategy, in which the court held that Federal copyright laws preempted OpenRisk’s computer fraud claims. The Fourth Circuit affirmed the district court’s judgment, concluding that the plaintiff’s computer fraud claims were preempted by the federal Copyright Act since the plaintiff’s sought liability based upon claims that, at their “core,” are not “qualitatively different” from the federal claims.

Maguire Financial, et al. v. PowerSecure International, Inc., et al.

In this civil case, Maguire Financial appealed the district court’s dismissal of its amended complaint containing claims of securities fraud. The Fourth Circuit affirmed the district court’s dismissal, concluding that Maguire Financial’s complaint failed to adequately allege scienter since a comprehensive analysis of the facts within the amended complaint did not create a “cogent and compelling” inference of scienter.  

United States v. Banker

In this criminal case, Banker appealed his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity. The Fourth Circuit affirmed Banker’s convictions, concluding that the district court’s jury instructions did not misstate the law and that there was sufficient evidence concerning the elements that the defendant knew or recklessly disregarded that the minor was underage.

 

By: Ashley Collette and Evan Reid

On October 12, 2017, the Fourth Circuit issued a published opinion in the civil case Siena Corporation v. Mayor and City Council of Rockville, Maryland. In its colorfully-worded decision, the court affirmed the dismissal of the “garden-variety zoning dispute recast in constitutional terms.”

Facts and Procedural History 

In 2013, Siena Corporation set out to construct an “ezStorage” self-storage facility in Rockville, Maryland. The property on which it chose to build was located down the block from an elementary school. Parents at the school expressed fears that the storage facility would lead to safety concerns for the elementary-aged students, including an increase in traffic and “U-Haul-style trucks” driven by inexperienced drivers, the storage of illegal or hazardous materials, and the potential release of asbestos. In response to these concerns, the City Council proposed the Planning Commission adopt a new zoning amendment that prohibited self-storage facilities within 250 feet of public schools. The Planning Commission recommended that the amendment be denied and held a public hearing on the proposed amendment.

While this was taking place, Siena obtained conditional site plan approval from the Planning Commission for their proposed “ezStorage” facility. However, this was conditional approval awaiting Siena’s full compliance with nineteen additional conditions as well as reviews by numerous local agencies.

The Rockville City Council ultimately adopted the zoning amendment prohibiting self-storage facilities in February of 2015. Siena brought suit against the City Council, the Mayor and two Councilmembers who had supported the amendment, and a Rockville resident who had urged its adoption (collectively “the Council”) seeking judicial review of the adoption of the zoning amendment in State court. Siena alleged in its complaint that the amendment violated its due process and equal protection rights under the Fourteenth Amendment and that the newly adopted zoning amendment targeted them specifically.

The Council removed the case to federal court and then moved to dismiss. The federal district court dismissed Siena’s federal due process claim, concluding that “Siena lacked a protected property interest in the ezStorage facility’s construction because it had not applied for a building permit.” Regarding Siena’s equal protection claim, the court held the zoning amendment had a rational basis and was thus constitutional. Siena appealed the district court’s decision to the Fourth Circuit, which reviewed the court’s decision de novo.

Due Process

To prevail on its claim that it was denied due process, Siena needed to show “(1) that it possessed a ‘cognizable property interest, rooted in state law,’ and (2) that the Council deprived it of property interest in a manner ‘so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.’” The Court found that Siena failed to meet either prong of the test. As to the first prong, Siena had not satisfied the conditions necessary to file for a building permit. But even if it had, the Court explained that zoning issues are local matters that should be decided at the local level. The Fourth Circuit noted that “[e]ven if Siena had a protected property interest here, the enactment of the zoning text amendment would fall short of a substantive due process violation.” Under its analyses of the second prong, the Court held that the action taken by the Council (the passing of an amendment barring self-storage businesses within 250 feet of public schools) was inside the limits of legitimate governmental action. The support for that conclusion was based on evidence that the Council heard testimony about the negative effects of self-storage sites and could have reasonably believed that testimony.

Equal Protection

The Fourth Circuit quickly disposed of Siena’s claim that the amendment violated the equal protection clause by pointing out that the action in question did not involve any rights protected by a higher level of scrutiny than rational basis. The Court stated that “the zoning text amendment is rationally related” to “the state interest in protecting schoolchildren.” Additionally, the Court noted that legislatures have great discretion in drafting statutes that involve economic matters, and this statute did not target Siena but rather applied equally to all self-storage businesses.

Conclusion

This case reaffirms the deference given to local authorities in zoning matters. The Fourth Circuit is hesitant to intervene absent a fundamental right at stake or targeting language.

Weekly Roundup: 10/23-10/27
By: Hanna Monson and Sarah Spangenburg

United States v. Julian Zuk
In this criminal case, the Government appealed the district court’s sentencing of defendant Julian Zuk as being “substantively unreasonable” after he had pled guilty to possessing child pornography as part of a plea agreement. The Fourth Circuit vacated the sentence and remanded for resentencing, reasoning that the 26 month time served sentence was not sufficient “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment.” 18 U.S.C. § 3553(a)(2)(A).

Campbell McCormick, Inc. v. Clifford Oliver
In this civil case, Campbell McCormick, Inc appealed an order of a federal district court that severed and remanded Oliver’s asbestos exposure claims against it. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction and also held that the elements for jurisdiction under the collateral order doctrine were not met.

SAS Institute, Inc. v. World Programming Limited
In this copyright case, SAS alleged that WPL breached a license agreement for SAS software and violated copyrights on that software. The Fourth Circuit agreed with the district court that the contractual terms at issue were ambiguous and that SAS had shown that WPL violated the terms. However, on the copyright claim, the Fourth Circuit vacated the district court’s judgment and remanded with instructions to dismiss as moot.

United States v. Shawntanna Lemarus Thompson
In this criminal case, Thompson pled guilty to a drug offense and being a felon in possession of a firearm. Thompson appealed his sentence after the district court increased his sentence when it found that Thompson’s previous state conviction for assault inflicting serious bodily harm constituted a “crime of violence” under § 4B1.2 of the U.S. Sentencing Guidelines. The Fourth Circuit affirmed the sentence because the residual clause of § 4B1.2 authorized the district court’s increased sentence.

By M. Allie Clayton

Today, in the civil case of Barton v. Constellium Rolled Products-Ravenswood, LLC., a published opinion, the Fourth Circuit affirmed the District Court in granting summary judgment for the company. The court stated that the governing collective bargaining agreement did not provide for vested retiree health benefits, and thus the former employer was within their power to unilaterally alter its retiree health benefits program.

Facts

A class of retirees and their union, The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industry & Service Workers International Union AFL-CIO/CLC (“The Union”), filed this action. The union had represented the retirees since 1988 and had negotiated collective bargain agreements with their previous employer—Constellium Rolled Products-Ravenswood, LLC (“Constellium”).

The Parties’ Agreement

There was a specific provision of their collective bargaining agreement (“CBA”) that governed group health insurance benefits: Article 15. The 2010 provision of Article 15 stated:

  1. The group insurance benefits shall be set forth in booklets entitled Employees’ Group Insurance Program and Retired Employees’ Group Insurance Program, and such booklets are incorporated herein and made a part of the 2005 Labor Agreement by such reference.
  2. It is understood that this agreement with respect to insurance benefits is an agreement on the basis of benefits and that the benefits shall become effective on July 15, 2010, except as otherwise provided in the applicable booklet, and further that such benefits shall remain in effect for the term of this 2010 Labor Agreement.

In addition to Article 15 and the various booklets incorporated by reference therein (which operated as summary plan description (“SPD”)), Constellium (or its predecessors) and retirees agreed to further parameters governing retiree health benefits that were contained in “Cap Letters.” The cap letters throughout the years governed how Constellium (or its predecessors) would allocate health care spending of employees based on pre- and post-January 2003 retirees. The third cap letter, which took effect on January 1, 2011, was unique in that it took effect after the concurrently-negotiated collective bargaining agreement did.

The Unilateral Change Leading to Litigation

While the parties were negotiating a new CBA in July 2012, Constellium proposed a change to Article 15 that would extend the cap on its contributions to retiree health benefits to those who retired before January 1, 2003, and freeze its Medicare Part B premium reimbursement amount for all hourly retirees at $99.90. The Union refused to bargain about this issue because it asserted that the retiree health benefits had already vested. Constellium notified the Union that it planned to make those changes on January 1, 2013, and made those changes on that day.

Procedural History

After discovery, the parties filed cross-motions for summary judgment. The district court granted the company’s motion and dismissed the case.

The Issue

Did Constellium’s unilateral alteration of those benefits breach its obligations under the CBA?

Reasoning

The Supreme Court in M&G Polymers USA, LLC v. Tackett stated that courts must “interpret collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.” Therefore, as this court was interpreting the collective bargaining agreement with the parties, it was bound by ordinary contract principles. Those ordinary contract principles included the rule that states that in order to find that the retiree health benefits vested, there must be unambiguous evidence that indicates that the parties intended that outcome.

The Fourth Circuit found that the plain language of the CBA and the SPD indicated that the benefits did not vest. They found that there was explicit durational language in the retiree health benefits SPDs. Bolstering that conclusion was the contrast of the retiree health benefits section with a different section of the SPD that stated unambiguously that the pension plans cannot be reduced and they are paid monthly for the participants. Because the language was unambiguous in another section, it clearly demonstrated that the parties knew how to express their intent that certain benefits should vest.

Disposition

Because there were clear temporal limitations on the employee health benefits, the retirees’ and the Union’s arguments that the benefits had already vested cannot be upheld. Therefore, the grant of summary judgment in favor of Constellium by the district court is affirmed.

By Ali Fenno

On February 21, 2017, the Fourth Circuit issued a published opinion in the civil case of vonRosenberg v. Lawrence. In vonRosenberg, the Fourth Circuit addressed whether the district court abused its discretion by staying a federal proceeding until the conclusion of a similar state action involving different parties and claims. After examining the abstention standard from Colorado River Water Conservation District v. United States, the Fourth Circuit vacated the abstention order and remanded the case back to the district court, holding that the district court abused its discretion by abstaining in favor of state court proceedings that were not parallel to the federal court proceedings.

Facts

Both this federal proceeding and the related state proceeding concerned whether the Diocese of South Carolina (the “Diocese”) dissociated itself from the Protestant Episcopal Church in the United States (the “Episcopal Church”). Bishop vonRosenberg, the federal plaintiff-appellant, claims that the Episcopal Church appointed him as Bishop of the Diocese after removing Bishop Lawrence, the federal defendant-appellee, from the position. But Bishop Lawrence contends that the Episcopal Church could not have removed him because the Diocese of South Carolina had dissociated from the Episcopal Church and acted independently of the organization. Thus, each party claimed to be the Bishop of the Episcopal Church in South Carolina.

State Claim

Litigation over the dissociation matter first began when the Diocese filed suit against the Episcopal Church in a South Carolina state court, claiming that the Diocese had dissociated from the Episcopal Church and sought “resolution of their real and personal property rights.” The Episcopal Church then counterclaimed for trademark infringement and dilution under the Lanham Act. It also requested that Bishop Lawrence and others be added as counterclaim defendants, but the state trial court denied the request in September 2013.

The state court issued its final order on February 3, 2015. It held that the Diocese had validly dissociated from the Episcopal Church and owned the property at issue, and permanently enjoined the Episcopal Church from using the Diocese’s marks. The Episcopal Church appealed, and the South Carolina Supreme Court heard oral arguments on September 23, 2013. No opinion from the state supreme court has yet been issued.

Federal Claim

Bishop vonRosenberg filed this federal action on March, 13, 2013, seeking declaratory-injunctive relief against Bishop Lawrence. He claimed that Bishop Lawrence violated the Lanham Act by falsely advertising himself as the Bishop of the Diocese. But the district court abstained the proceeding in favor of the state court proceedings in August 2013. The court reasoned that it had broad authority to decline jurisdiction on cases seeking declaratory relief. On appeal, the Fourth Circuit vacated the abstention order on the grounds that the district court had applied the wrong abstention standard; the district court should have applied the standard for actions involving both declaratory and non-declaratory relief from Colorado River Water Conservation District v. United States. The Fourth Circuit remanded the case so this correct standard could be applied.

On remand, the district court again abstained in favor of the state proceedings, and Bishop vonRosenberg appealed.

Failure to Meet the “Exceptional Circumstances” Abstention Standard

The Fourth Circuit began its analysis by establishing that Colorado River is a narrow standard; it requires that abstention of jurisdiction be justified by “exceptional circumstances.” The Fourth Circuit identified the first step in this “exceptional circumstances” test to be a determination of whether the state and federal cases are parallel. It listed three guiding principles for this determination: (1) the federal and state parties should have more in common than merely the litigation of substantially similar issues; (2) the parties themselves should be nearly identical; and (3) despite overlapping of facts, there must not be serious doubt that the state action would not resolve all the claims. The Fourth Circuit then noted that even if the if the factual circumstances are sufficiently parallel, Colorado River requires that a handful of procedural factors be balanced before abstaining.

In applying these principles to this case, the Court first observed that the parties in the two cases are not the same. Neither Bishop Lawrence nor Bishop vonRosenberg were parties to the state action. Furthermore, the two courts were not litigating the same claims. The state court looked only at the Episcopal Church’s false advertising claim, not that of Bishop vonRosenberg. Thus, because the state and federal cases involved different parties and different claims, the cases were not parallel as required by Colorado River‘s “exceptional circumstances” standard.

Conclusion

The Fourth Circuit concluded that the state and federal proceedings failed to meet Colorado River’s “exceptional circumstances” standard because, as they involved different parties and different claims, they could not be considered parallel cases. Accordingly, it vacated the abstention order and remanded the case back to the district court.