Wake Forest Law Review

By Jason Wiener

Karen J. Williams was born in Orangeburg, South Carolina on August 4, 1951.[1] After receiving her B.A. from Columbia College in 1972, she taught social studies and English in local public schools.[2] She returned to school as a law student and received her J.D. from the University of South Carolina in 1980, graduating at the top of her class.[3] Before taking the bench, Judge Williams practiced in Orangeburg at Williams & Williams, where she worked alongside her husband Charles H. Williams and her father-in-law Senator Marshall B. Williams.[4]

On January 27, 1992, Karen Williams was nominated by President George H. W. Bush to serve on the Fourth Circuit Court of Appeals.[5]Upon confirmation, she became the first female to sit on that Court’s bench.[6]She made history again in 2007 when she served as the first female Chief Judge, a position she held until her resignation in 2009.[7]

Judge Williams took an active role on the bench and fearlessly addressed controversial appellate cases, which ultimately helped clarify the parameters of our Mirandarights. In 1966, the Supreme Court attempted to safeguard Fifth Amendment rights in the famous Mirandadecision.[8] In 1968, Congress passed 18 U.S.C. § 3501, an act that sought to expand the admissibility of voluntary confessions during federal prosecutions.[9] Although the Department of Justice had been reluctant to enforce that law, Judge Williams had to contend with the constitutionality of § 3501 in United States v. Dickerson.[10]

After Charles Dickerson voluntarily confessed to robbing several banks, he later sought to suppress the confession due to a technical violation of Miranda.[11] Reasoning that Congress had the authority to pass § 3501 pursuant to its authority to establish rules of procedure and evidence for the federal courts, and that the act allowed confessions to be admissible in evidence if they are voluntarily given, Judge Williams reversed the district court’s suppression of the evidence.[12] However, the Supreme Court reversed in Dickerson v. United States and held that Miranda was a constitutional decision that cannot be effectively overruled by Congress.[13] Although the New York Times chided Judge Williams’ opinion, her deference to the legislature on this issue was understandable given the unclear complexities of Miranda.[14]

Fourth Circuit Judge J. Harvie Wilkinson III noted that Judge Williams “brought warmth, refinement, dignity, and grace to the judicial process, which can sometimes be perceived as hard and cold.”[15]After she was diagnosed with Alzheimer’s disease, Judge Williams retired in 2009.[16]On November 2, 2013, the Honorable Karen J. Williams died at her home in Orangeburg at the age of 62.[17]She was survived by her husband and four children.[18]She is remembered daily at the University of South Carolina Law School, where a courtroom bearing her name honors her legacy. 


[1]Williams, Karen J., Fed. Jud. Ctr., https://www.fjc.gov/history/judges/williams-karen-j (last visited Apr. 15, 2019).

[2] Court Mourns the Passing of Former Chief Judge Karen J. Williams, U.S. Ct. of Appeals for the Fourth Cir. (Nov. 5, 2013),  http://www.ca4.uscourts.gov/news-announcements/2013/11/05/court-mourns-the-passing-of-former-chief-judge-karen-j.-williams.

[3]Id.

[4]Hon. Karen J. Williams 1951 – 2013Obituary, Dukes-Harley Funeral Home and Crematory, https://www.dukesharleyfuneralhome.com/obituary/2312344(last visited Apr. 15, 2019). 

[5]Id.

[6]Id.

[7]Id.

[8]Miranda v. Arizona, 384 U.S. 436 (1966). 

[9]18 U.S.C.A. § 3501.

[10]United States v. Dickerson, 166 F.3d 667, 671 (4th Cir. 1999).

[11]Id.

[12]Id.at 672. 

[13]Dickerson v. United States, 530 U.S. 428, 431 (2000).

[14]For the NYT’s take on Judge Williams and the Dickerson decision, see Deborah Sontag, The Power of the Fourth N.Y. Times (Mar. 9, 2003), https://www.nytimes.com/2003/03/09/magazine/the-power-of-the-fourth.html.

[15]Court Mourns the Passing of Former Chief Judge Karen J. Williamssupranote 2. 

[16]Id.

[17]Id.

[18]Hon. Karen J. Williamssupranote 4.


By Agustin Martinez and Ashley Oldfield

Born in 1954 in Tyler, Texas,[1] former Judge J. Michael Luttig attended Washington and Lee University for his undergraduate studies.[2] After graduating with a Bachelor of Arts degree in 1976,[3] Judge Luttig worked at the U.S. Supreme Court in the Office of the Administrative Assistant to the Chief Justice from 1976 to 1978.[4] Judge Luttig then attended the University of Virginia School of Law, earning his law degree in 1981.[5]

Following law school, Judge Luttig worked in the White House during the Reagan presidency, first as special assistant to the White House Counsel and then as assistant counsel from 1981 to 1982.[6] After leaving the White House, Judge Luttig worked as a judicial law clerk for then-Judge Antonin Scalia of the U.S. Court of Appeals for the D.C. Circuit from 1982 to 1983, and then for Chief Justice Warren E. Burger of the U.S. Supreme Court from 1983 to 1984.[7] Judge Luttig continued working for Chief Justice Burger from 1984 to 1985 as his special assistant.[8]

From 1985 to 1989, Judge Luttig worked in private practice for the New York law firm Davis Polk & Wardwell.[9] He then left private practice and worked for the U.S. Department of Justice for two years,[10] serving as assistant attorney general and counselor to the attorney general.[11] During his time at the Department of Justice, Judge Luttig helped prepare Justices David Souter and Clarence Thomas for their U.S. Supreme Court nomination hearings before the Senate.[12]

In 1991, President George H.W. Bush nominated Judge Luttig to a new seat on the U.S. Court of Appeals for the Fourth Circuit.[13] The Senate confirmed him that same year.[14] At the time of his appointment to the Fourth Circuit, Judge Luttig was the youngest federal court of appeals judge in the country.[15]

Judge Luttig wrote opinions in a wide variety of areas, ranging from criminal justice to civil rights to economic and labor regulation.[16] One of his more notable opinions, which was upheld by the Supreme Court, found a section of the federal Violence Against Women Act unconstitutional,[17] holding that the necessary “nexus between violence motivated by gender animus and interstate commerce” was lacking.[18] Judge Luttig was also among the first federal appeals judges to assert that the Constitution affords inmates the right to post-conviction DNA testing.[19]

Many of Judge Luttig’s clerks went on to become clerks for justices on the Supreme Court.[20] Additionally, in 2005, Judge Luttig was considered a potential contender for a position on the Court.[21] However, John G. Roberts, Jr., was nominated for the position instead and was later confirmed as the Chief Justice of the Supreme Court.[22]

Following fifteen years on the bench, Judge Luttig resigned from the Court of Appeals in May of 2006.[23] Since then he has served as general counsel and executive vice president of The Boeing Company.[24]

  1. Luttig, J. Michael, Fed. Judicial Ctr., https://www.fjc.gov/history/judges/luttig-j-michael (last visited Apr. 2, 2019).

  2. Id.

  3. Id.

  4. Executive Biography of J. Michael Luttig, Boeing, https://www.boeing.com/company/bios/j-michael-luttig.page (last visited Apr. 2, 2019).

  5. Fed. Judicial Ctr., supra note 1.

  6. Executive Biography of J. Michael Luttig, supra note 4.

  7. Id.

  8. Id.

  9. Id.

  10. Fed. Judicial Ctr., supra note 1.

  11. Executive Biography of J. Michael Luttig, supra note 4.

  12. Id.

  13. Fed. Judicial Ctr., supra note 1.

  14. Id.

  15. Executive Biography of J. Michael Luttig, supra note 4.

  16. Charles Lane & Jerry Markon, Similar Appeal, Wash. Post (July 17, 2005), https://www.washingtonpost.com/archive/politics/2005/07/17/similar-appeal/db16a144-03f0-443f-a5d3-291bf2718f84/?utm_term=.2e13a908e7ff.

  17. Id.

  18. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 838 (1999).

  19. Harvey v. Horan, 285 F.3d 298, 308 (2002) (Luttig, J., concurring); Lane & Markon, supra note 16.

  20. David Lat, Another Judge Leaves for Greener Pastures, Above the Law (July 26, 2006, 10:36 AM), https://abovethelaw.com/2006/07/another-judge-leaves-for-greener-pastures/.

  21. Lane & Markon, supra note 16.

  22. John G. Roberts, Jr., Oyez, https://www.oyez.org/justices/john_g_roberts_jr (last visited Apr. 2, 2019).

  23. David Lat, Lawyerly Lairs: Luttig in Lap of Luxury, Above the Law (July 27, 2010, 1:37 PM), https://abovethelaw.com/2010/07/lawyerly-lairs-luttigs-lap-of-luxuryplus-info-about-his-current-compensation/.

  24. Id.

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By Tristan Meagher & Nick McCauslin

United States v. Mills

In this criminal case, the Fourth Circuit affirmed the sentencing of Darryl Mills for possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1). After pleading guilty to the violation, Mills was sentenced to 70 months in prison based on a finding that his prior conviction of assault with a deadly weapon was a “crime of violence.” Mills argued that his prior conviction was not for a crime of violence, and thus his sentence should be reduced to 37 to 46 months, consistent with sentencing guidelines. The Fourth Circuit held because the district court noted that it would have imposed the 70 month prison sentence regardless of whether the prior conviction was a crime of violence and that the sentencing was substantively reasonable.

Williams v. Strickland

In this civil case, the Fourth Circuit affirmed the district court’s denial of summary judgment in favor of the defendants. Williams brought suit against police officers in the United States District Court for the District of South Carolina for using deadly force when arresting him, in violation of his Fourth Amendment Rights. As the officers attempted a traffic stop, Williams drove his car in the direction of one of the officers, prompting them to shoot Williams. The officers filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion finding that a reasonable jury could have determined that the car was not going to pass or had already passed the officer, in which case the use of deadly force would have been excessive. The Fourth Circuit agreed.

United States v. Simmons

In this criminal case, the district court revoked the defendant’s supervised release and sentenced him to 36 months in prison after he was found to have committed assault with a deadly weapon on a government official in violation of his release. The district court held that because assault with a deadly weapon on a government official is categorically a “crime of violence,” they were free to revoke his supervised release and implement the 36 month prison sentence. The Fourth Circuit vacated the revocation holding that assault with a deadly weapon on a government official is not categorically a crime of violence, because the offense can be committed without the requisitemens rea to qualify as a crime of violence. Accordingly, the case was remanded to the district court for resentencing. 

Robinson v. United States Department of Education

In this civil case, plaintiff Anthony Robinson appealed the dismissal of his case against the Department of Education. The district court dismissed his case because it lacked jurisdiction over the claim due to the lack of waiver of sovereign immunity for suits under the Fair Credit Reporting Act (FCRA). The issue on appeal was whether Congress waived sovereign immunity for suits under the FCRA. The Fourth Circuit ultimately focused on the term “person” in 15 U.S.C. § 1681(n) and § 1681(o). The Fourth Circuit ultimately refuses to read the word “sovereign” into the word “person, and thus affirmed the dismissal by the district court for lack of subject matter jurisdiction. 

Equinor USA Onshore Properties v. Pine Resources, LLC

The issue this civil case was what exactly the contractual requirements are in a Purchase and Sale Agreement (PSA). Specifically, what the clause that required Equinor USA to “spud” three wells meant. The district court finding, that the term “spud” required Equinor to drill, but not complete, the wells, was appealed by Pine Resources. Pine Resources contended that the parties clearly intended “spud” to mean complete the wells such that they can be used. The Fourth Circuit decided that the district court was correct in their finding. To come to that decision, the Fourth Circuit considered the record as a whole and whether or not it supported the district court’s conclusion as to the intent of the parties. They found that while there was some evidence that Pine Resources believed the PSA required product, the record—considered as a whole—showed that the PSA merely contemplated, but did not require, the completion of the wells. Thus, the decision by the district court was affirmed. 

Hately v. Watts

In this civil case, plaintiff David Watts appealed the dismissal of his suit that Watts violated the Virginia Computer Crimes Act and  the Federal Stored Communications Act. There were two issues on appeal.  The first was whether the district court’s finding that Hately failed to show necessary injury under his state law claim. The second was the district court’s finding that emails stored by a web-based email service were not considered “electronic storage” under federal law.  Regarding the first issue, the Fourth Circuit found both that the district court improperly applied the doctrine of collateral estoppel and that Watts had adequately alleged injury to his person or property. Regarding the second issue, the Fourth Circuit found that “previously opened and delivered emails” stored “in a web-based email client” were considered “electronic storage” under the federal Stored Communications Act. Therefore, they reversed the district court on both the state and federal claims and remanded it for trial. 

By Katy Thompson and Lanie Summerlin

          In Equal Employment Opportunity Commission v. McLeod Health Inc., Cecilia Whitten (“Whitten”) was employed by McLeod Health, Inc. (“McLeod”) for twenty-eight years as the editor of McLeod’s internal employee newsletter[1].  Whitten was born with postaxial hypoplasia of the lower extremity, so she lacks certain bones in her feet, legs, and right hand. Therefore, Whitten has limited mobility and has always struggled with falling.[2]  In 2012, Whitten fell three times: twice outside of work and once at work.  As a result, McLeod required Whitten to undergo several fitness-for-duty exams.[3]  McLeod concluded that Whitten was a high-fall risk.  Whitten proposed several reasonable accommodations, but McLeod determined that these accommodations would prevent Whitten from fulfilling her job’s essential function of travelling to the company’s different campuses to collect stories.[4]  Whitten was placed on medical leave and ultimately terminated.[5]

            Whitten filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), prompting EEOC to bring a suit against McLeod on Whitten’s behalf. The district court granted summary judgment to McLeod on both claims and the EEOC appealed.[6]  The issue before the Court was whether McLeod violated the Americans with Disabilities Act (“ADA”) by (1) requiring Whitten to undergo medical exams despite a lack of evidence that the exams were necessary (“illegal-exams” claim); and/or (2) terminating Whitten on the basis of her disability (“wrongful-discharge” claim).[7]

EEOC’s Arguments

            On appeal, the EEOC argued that summary judgment was not appropriate on either claim because there was sufficient evidence for a reasonable jury to rule in favor of the EEOC.[8]

            Under the ADA, an employer may not require an employee to undergo a medical exam unless the exam is job-related and consistent with business necessity.  Specifically, the employer must reasonably believe the employee’s ability to perform an essential job function is limited by a medical condition or that, due to a medical condition, the employee’s performance of an essential job function would pose a direct threat to the safety of the employee or others.[9]  The EEOC appealed summary judgment on the illegal exams claim by arguing that it had provided enough evidence for a reasonable jury to conclude that travelling to the company’s different campuses was not an essential function of Whitten’s job.[10]  McLeod’s description of Whitten’s position did not include travelling to McLeod’s campuses, and Whitten could gather information for the employee newsletter over the phone.  Also, the EEOC argued that McLeod’s belief that Whitten’s falls made her a direct threat was unreasonable because her falls did not cause injury.[11]

            Furthermore, to establish a wrongful-discharge claim a plaintiff must prove (1) she has a disability; (2) she is a qualified individual; and (3) her employer took adverse employment action against her because of her disability.[12]  The EEOC claimed that the first and third elements were clearly met and that it had presented enough evidence on the second element to preclude summary judgment.[13]  A qualified individual must be able to perform the essential functions of the job with or without a reasonable accommodation.[14]  The EEOC argued that a reasonable jury could determine, based on the evidence presented for the illegal-exams claim, that Whitten was a qualified individual because travelling was not an essential function of her job.[15]

McLeod’s Arguments

            On appeal, McLeod argued that summary judgment on both the illegal-exams claim and the wrongful-discharge claim was appropriate.[16]

            Specifically, in regards to the illegal-exams claim, McLeod argued that it did not violate the ADA by requiring Whitten to undergo work-related medical exams because it reasonably believed, based on objective evidence, that Whitten could not perform an essential function of her job without posing a direct threat to herself.[17]  McLeod claimed, and the district court agreed, that one of the essential functions of Whitten’s job was to navigate to and within the medical campuses.[18]  Thus, McLeod argued, the medical exams did not violate the ADA because McLeod believed Whitten’s disability rendered her unable to travel to and within the company’s different campuses without posing a direct threat to herself.[19]

            With respect to the wrongful-discharge claim, McLeod argued that summary judgment was appropriate because Whitten was not a “qualified individual” within the meaning of the ADA.  Specifically, McLeod asked the Court to affirm on the basis that the EEOC had not proven Whitten was a “qualified individual;” the medical exams indicated she could not perform an essential function of her job, regardless of whether she was provided with a reasonable accommodation.[20]

Holding: Summary Judgment Inappropriate as to Both Claims

            The Fourth Circuit reversed summary judgment on both claims and remanded the case to the lower court.[21]  Reviewing the grant of summary judgment on both claims de novo, the Court disagreed with the district court’s determination that McLeod had showed there was no genuine dispute as to a material fact; therefore, summary judgment was inappropriate.[22]

            The Court examined the evidence presented by both parties but disagreed with the district court’s finding that the EEOC failed to produce enough evidence for a jury to rule in its favor.[23] The Court acknowledged that the record contained evidence supporting McLeod’s position that it reasonably believed, based on objective evidence, that Whitten could not navigate to or within its campuses without posing a direct threat to herself.[24]  Based on the testimony of one of Whitten’s superiors, as well as her own testimony agreeing that her job required her to “safely navigate marketing department functions,” the Court found that a reasonable jury court rule in favor of McLeod.[25]

            However, the Court also found that a reasonable jury, based on the evidence presented in the lower court, could rule in favor of the EEOC.[26]  The Court looked at McLeod’s own written description of Whitten’s job, which contained no mention of navigating to and from company events or conducting in-person interviews.[27]  Although Whitten testified that she believed she collected better content by travelling to McLeod’s campus locations, she did not believe it was an “essential” function of her job because she could collect information and conduct interviews over the phone.[28]  Because the Court determined that the EEOC had produced “more than a scintilla of evidence” in support of its position that navigating to and from McLeod’s campus locations was not an essential function of Whitten’s job, the Court reversed summary judgment as to the illegal-exams claim.[29]

            The Court noted that even if the EEOC had failed to produce enough evidence that navigating to and from campus locations was an essential function of her job, McLeod would still not be entitled to summary judgment.[30]  The Court analyzed what McLeod knew before it required Whitten to take the medical exams; specifically, that (1) McLeod knew Whitten had performed the essential function of her job for twenty-eight years, despite her disability; (2) Whitten had recently fallen several times (once at work), none of which resulted in any severe injuries; (3) Whitten missed deadlines, came in late, and struggled with her workload; and (4) Whitten’s supervisor noted she recently appeared winded and groggy.[31]  The Court determined that a reasonable jury, based on the evidence, could have found that McLeod lacked a reasonable, objective basis for requiring Whitten to undergo work-related medical exams.[32]

            As to the wrongful-discharge claim, the question at issue was whether the EEOC had produced enough evidence to convince a jury that Whitten was a “qualified individual” within the meaning of the ADA.[33]  The Court noted that the district court, in analyzing the “wrongful-discharge” claim, relied on its finding that navigating to and from McLeod’s campus locations was an essential function of Whitten’s job.[34]  Because the medical exams had revealed that no reasonable accommodation would permit Whitten to perform that function, the district court concluded that the EEOC had not proven Whitten was qualified to continue her work with the company’s employee newsletter.[35]  However, because the Court had already determined that it was uncertain whether navigating to and from McLeod’s campus locations was an essential function of Whitten’s job, and because the medical exams may have been unlawful, the Court held that McLeod was not entitled to summary judgment.[36]

Conclusion

            Ultimately, the Fourth Circuit held that McLeod was not entitled to summary judgment on either of the EEOC’s ADA claims and remanded for further proceedings.[37]  The Court held that a reasonable jury could conclude that travelling was not an essential function of Whitten’s job.[38]  If a jury made this determination, then there could be sufficient evidence (1) that McLeod’s required medical exams were illegal; and (2) that Whitten was illegally terminated on the basis of her disability.[39]  This case is important because it provides an example of the level of evidence a plaintiff must offer to survive a summary judgment motion on ADA claims.  Also, this ruling sends a message to employers that the Fourth Circuit takes ADA claims very seriously, and it could encourage the EEOC to bring more ADA claims in this circuit.

[1] No. 17-2335, 2019 WL 385654, at *1 (4th Cir. Jan. 31, 2019).

[2] Id.

[3] Id. at *2.

[4] Id. at *3.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at *4.

[11] Id.

[12] Id. at *5.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at *3.

[17] Id. at *4.

[18] Id.

[19] Id.

[20] Id. at *5.

[21] Id.

[22] Id. at *3.

[23] Id. at *4–5.

[24] Id. at *4.

[25] Id. at *4.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at *5.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id. at *4.

[39] Id. at *5.

By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.

 

Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.

 

US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.

 

US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

Fourth Circuit Weighs in on Constitutional Challenges to Airport Metro Service Project

By Agustin Martinez and Ashley Oldfield

Facts

In Kerpen v. Metropolitan Washington Airports Authority,[1] the Fourth Circuit addressed numerous constitutional and statutory challenges to the Metropolitan Washington Airports Authority’s (“MWAA”) use of toll revenues to build and fund a metro service project. Beginning in 1962, Dulles Airport and an access road linking Dulles to the Washington, DC, area operated under the management of the Federal Aviation Administration (“FAA”).[2] However, when the need for capital improvements at Dulles and its sister airport, National, became apparent in the early 1980s, the government sought to transfer operation of both airports to an authority with the ability to raise the necessary funds.[3] Subsequently, Virginia and the District of Columbia passed legislation “to create an interstate compact for the management of Dulles and National” which resulted in MWAA.[4] The legislation granted MWAA the authority to acquire the airports and “to operate, maintain, and improve” them.[5] The following year, the Transfer Act (“Act”) authorized the lease of the airports (“Lease”) to MWAA and “the transfer of the airports’ ‘access highways and other related facilities.’”[6] The Act required MWAA to only use the property for “airport purposes” and to “assume responsibility” for the federal government’s Master Plan for the airports, which “contemplated” eventual metro service to Dulles.[7] To facilitate the metro service project, Virginia transferred operation of a toll road to MWAA, and MWAA agreed to use the resulting revenues to finance the metro service’s construction.[8]

Procedural History

Plaintiffs, users of the toll road, brought a putative class action suit challenging MWAA on various constitutional and statutory grounds.[9] They asserted that “MWAA is a federal instrumentality” and that it “violated Article I, Article II, and the Guarantee Clause of the Constitution”; the Administrative Procedures Act (APA); and “the terms of the Transfer Act and the Lease.”[10] In response, MWAA, the District of Columbia, the Secretary of Transportation, and the U.S. Department Of Transportation (collectively, “Defendants”) filed Motions to Dismiss for Failure to State a Claim.[11] The district court granted the Motions and dismissed all of Plaintiffs’ claims.[12] Upon appeal, the Fourth Circuit considered whether MWAA was subject to limitations under the Constitution and APA and whether its collection and use of tolls violated the terms of the Transfer Act and Lease.

Plaintiffs’ Arguments

On appeal, Plaintiffs argued that MWAA is a federal instrumentality under the four-factor Lebron standard.[13] First, Plaintiffs asserted that MWAA was created in pursuit of federal policy goals because “the Federal Government has a strong and continuing interest in the efficient operation of [MWAA’s] airports.”[14] Second, they argued that the federal government initiated MWAA’s creation because the Secretary of Transportation appointed the commission that recommended MWAA and Congress conditioned the airports’ transfer on meeting several requirements.[15] Third, Plaintiffs observed that three of MWAA’s directors are federally appointed and suggested that the remaining directors were also “beholden to federal interests . . . .”[16] Finally, they asserted that MWAA is subject to significant congressional oversight because Congress has established several “oversight mechanisms” for MWAA, including its previous Board of Review and current Board of Directors, and has subjected MWAA to oversight by the Department of Transportation.[17]

Plaintiffs further argued that, even if MWAA is not a federal instrumentality, the federal, government, and legislative powers delegated to it violate the nondelegation principle.[18] Plaintiffs listed a “vast panoply” of federal powers granted to MWAA by Congress and the FAA[19] and compared the present case to previous litigation involving MWAA in which the court held that “MWAA’s prior Board of Review was exercising federal power . . . .”[20] Plaintiffs also asserted that MWAA’s clear exercise of governmental power violated the Guarantee Clause because MWAA acts independently and without political accountability.[21] Additionally, Plaintiffs argued that MWAA exercised various legislative powers and particularly noted that its collection of tolls is an improper exercise of the legislative power to tax.[22]

Finally, Plaintiffs argued that the Transfer Act prohibited MWAA’s financing and construction of the Silver Line, a metro line connecting Dulles to Washington, DC, because the Act requires that airport revenues only be spent on the “capital and operating costs of the . . . Airports.”[23] Plaintiffs asserted that construction of the Silver Line could not be a capital cost of the airport because the Silver Line is largely “for the use of non-airport customers, on non-airport property” and will be turned over to its operator, the Metropolitan Washington Area Transit Administration (“WMATA”), upon completion.[24] Plaintiffs noted that a proper construction of the statute “required MWAA to leave space for a potential Metro line,” but prohibited MWAA from building the line itself.[25]

Defendants’ Arguments

Meanwhile, Defendants argued that operating commercial airports is not a core federal power reserved to the federal government by the Constitution.[26] They noted that, other than Dulles and National, the federal government has neither owned nor operated other commercial airports.[27] They asserted, therefore, that the Transfer Act did not violate separation of power principles, including the nondelegation doctrine, because the Act did not entail the delegation of a reserved core federal power.[28] Defendants also argued that, even if the Transfer Act did implicate a core federal power, the Act still satisfied the “intelligible principle” that is required when the federal government delegates a core power.[29] Defendants asserted that the Act’s strict statutory requirements for the Lease with MWAA sufficiently satisfied this broad “intelligible principle.”[30]

Next, Defendants argued that MWAA is not a federal instrumentality.[31] They emphasized that no court has previously held that an interstate compact, like MWAA, is a federal instrumentality that is subject to the Appointments Clause of the Constitution.[32] Defendants further asserted that MWAA was not created by the federal government; that the Transfer Act’s purpose was to transfer the operation and funding of Dulles and National to Virginia and the District of Columbia; and that the federal government did not control MWAA’s day-to-day operations or its governance and management decisions.[33] Defendants maintained, therefore, that the federal government neither created nor controlled MWAA, and thus it is not a federal instrumentality under the Lebron framework.[34]

In addition, Defendants argued that the Transfer Act did not violate the Guarantee Clause of the Constitution because the Act did “not remotely threaten Virginia’s republican form of government.”[35] Specifically, Defendants noted that Virginia and the District of Columbia established MWAA by virtue of statutes that were enacted by their respective legislative bodies and that MWAA’s appointed Board members are accountable to elected officials.[36] They also asserted that the Transfer Act limits MWAA’s authority to operating, maintaining, and improving Dulles and National, thus preventing the Act from running afoul of the Guarantee Clause.[37]

Finally, Defendants asserted that MWAA’s financing and construction of the Silver Line is permitted under the Transfer Act.[38] Defendants first argued that, as matter of law and statutory interpretation, Plaintiffs were barred from bringing an action to enforce the Transfer Act against MWAA.[39] Defendants then asserted that MWAA’s use of toll revenues for the Silver Line project was “reasonably related to improving passenger and cargo access to Dulles,” and thus was consistent with the Transfer Act’s legislative intent.[40]

The Fourth Circuit’s Analysis and Holding

The Fourth Circuit affirmed the district court’s dismissal of Plaintiffs’ claims. As an initial matter, the Court rejected Plaintiffs’ arguments that MWAA is a federal instrumentality.[41] Under Lebron, an entity is a federal instrumentality when it is (1) created and (2) controlled by the federal government.[42] The Court held that MWAA did not meet this definition.[43] First, the Court noted that the Transfer Act did not create MWAA because Virginia and the District of Columbia, with congressional pre-approval, had created MWAA through their own statutes.[44] The Transfer Act “simply specified the minimum powers MWAA must have in order to lease Dulles and National,” while also recognizing that Virginia and the District of Columbia were the sources of those powers.[45] Second, the Court explained that MWAA is not controlled by the federal government, as evidenced by the fact that only three of MWAA’s seventeen Board members are appointed by the federal government.[46] Although these three Board members have some influence on MWAA’s decisions, they alone cannot control MWAA.[47]

Moreover, the Court declined to adopt Plaintiffs’ instrumentality arguments because doing so would implicate other constitutionally permissible arrangements, including federal contractor agreements and interstate compacts like the Atlantic States Marine Fisheries Commission.[48] Thus, the Court held that Plaintiffs’ Appointments Clause and APA challenges failed because MWAA is not a federal instrumentality.[49] As the Court noted, the Appointments Clause and APA only apply to federal entities.[50]

The Court also rejected Plaintiffs’ claim that MWAA had been unconstitutionally delegated legislative power, government power, or federal power. “The principle of non-delegation requires that ‘core governmental power must be exercised by the Department on which it is conferred and must not be delegated to others in a manner that frustrates the constitutional design.’”[51] The Court held that MWAA’s structure did not violate the nondelegation doctrine.[52] First, the Court explained that MWAA only exercised those powers that originated from the Virginia and District of Columbia statutes; however, the plain text of those statutes did not transfer any legislative power from the federal government to MWAA.[53] Further, the Transfer Act recognized that those statutes had conferred non-legislative powers on MWAA.[54] The Court also indicated that, even if MWAA derived some of its power from the federal government, “[t]he strictures of the Transfer Act are sufficiently detailed as to more than satisfy the requirement of an ‘intelligible principle.’”[55]

Second, the Court noted that the Supreme Court has made it clear that it is unconstitutional for the government to delegate core government power to a private entity.[56] Therefore, the Court reasoned that there was “no unlawful delegation of ‘government power’ to a private entity in this case for the simple reason that MWAA is not a private entity”[57] Rather, MWAA is an interstate compact that is subject to the authority of elected officials.[58] Third, the Court adopted Defendants’ argument that operating a commercial airport is not an inherent federal power, and thus it rejected Plaintiffs’ claim that MWAA had been delegated a federal power.[59]

The Court then addressed Plaintiffs’ contention that MWAA’s establishment violated the Guarantee Clause. The Guarantee Clause states that the U.S. “shall guarantee to every State in this Union a Republican Form of Government.”[60] The Court concluded that there was no violation of the Guarantee Clause because “MWAA does not deny any state a republican form of government.”[61] Specifically, Virginia and the District of Columbia retained their republican governments, and MWAA is accountable to elected officials.[62] Finally, the Court analyzed whether MWAA’s collection and use of tolls violated the terms of the Transfer Act and Lease. Consistent with case law from its sister circuits, the Court gave significant deference to the Secretary of Transportation’s previous determination that MWAA’s construction of the Silver Line and use of toll revenues to finance the project was permissible under the Act and Lease.[63] The Court also indicated that the Secretary was entitled to such deference because, under the Transfer Act, it is the Secretary who is authorized to determine the scope of an “airport purpose.”[64] Therefore, the Court adopted the Secretary’s determination, noting that the Transfer Act and Lease had required MWAA to adopt the Master Plan for Dulles and National, which had envisioned extending metro service to Dulles.[65] Moreover, the Act and Lease recognized that MWAA could exercise eminent domain powers, indicating that the federal government “must have imagined that MWAA would make improvements to land that is not owned or controlled by [MWAA].”[66] In sum, the Court rejected all of Plaintiffs’ claims.

Conclusion

Plaintiffs raised several constitutional and statutory claims to challenge MWAA’s collection and use of toll revenues for the Silver Line project. However, none of those claims persuaded the Fourth Circuit to decide the case in Plaintiffs’ favor. As to the constitutional claims, the Court declined to subject MWAA to the constraints of Article I, Article II, and the Guarantee Clause of the Constitution. Further, the Court gave significant deference to the Secretary of Transportation’s interpretation of the Transfer Act and Lease, which weighed in favor of Defendants. The Court’s decision was guided by its own precedent, as well as precedent from the Supreme Court and sister circuits. Notably, the Court also made it clear that its decision was influenced by the prospect of “throw[ing] longstanding airport expansion arrangements into turmoil.”[67]

  1. No. 17-1735, 2018 WL 5117169 (4th Cir. Oct. 22, 2018).
  2. Id. at *1.
  3. Id.
  4. Id.
  5. Id.
  6. Id. (citations omitted).
  7. Id. at *1–2 (citations omitted).
  8. Id. at *2.
  9. Id.
  10. Id.
  11. Kerpen v. Metro. Wash. Airports Auth., 260 F. Supp. 3d 567, 570 (E.D. Va. 2017).
  12. Id. at 571.
  13. Opening Brief of Plaintiff-Appellants (Corrected) at 31, 33, Kerpen v. Metro. Wash. Airports Auth., No. 17-1735, 2018 WL 5117169 (4th Cir. Oct. 22, 2018) (citing Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 397–400 (1995)).
  14. Id. at 26, 33 (quoting MWAA v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 266 (1991)).
  15. Id. at 22–23, 35.
  16. Id. at 37–38.
  17. Id. at 38–39.
  18. Kerpen, 2018 WL 5117169, at *4.
  19. Opening Brief of Plaintiff-Appellants (Corrected), supra note 13, at 19–22.
  20. Id. at 22.
  21. Id. at 42–45.
  22. Id. at 50–53.
  23. Id. at 56.
  24. Id. at 56.
  25. Id. at 63–64.
  26. Brief for the Federal Appellees at 17, Kerpen v. Metro. Wash. Airports Auth., No. 17-1735, 2018 WL 5117169 (4th Cir. Oct. 22, 2018).
  27. Id. at 18.
  28. Id. at 21.
  29. Id.
  30. Id. at 23–24.
  31. Id. at 24–25.
  32. Id. at 25.
  33. Id. at 26–31.
  34. Id. at 31.
  35. Id. at 34.
  36. Id. at 32–33.
  37. Id. at 33.
  38. Id. at 34.
  39. Id. at 35–37.
  40. Id. at 39–43.
  41. Kerpen, 2018 WL 5117169, at *2.
  42. Id.
  43. Id. at *3.
  44. Id.
  45. Id.
  46. Id.
  47. Id.
  48. Id. at *3–4.
  49. Id. at *4.
  50. Id. at *4.
  51. Id. at *4 (quoting Pittston v. United States, 368 F.3d 385, 394 (4th Cir. 2004)).
  52. Id.
  53. Id.
  54. Id.
  55. Id.
  56. Id. at *5.
  57. Id. at *5.
  58. Id.
  59. Id.
  60. Id. at *6 (quoting U.S. Const. art. IV, § 4).
  61. Id.
  62. Id.
  63. Id. at *7.
  64. Id.
  65. Id.
  66. Id.
  67. Id. at *8.

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 Ryan C Dibilio and Robert M. Padget III

Facts

On August 2, 2018, the Fourth Circuit Court of Appeals decided Vandevender v. Blue Ridge of Raleigh, LLC.,[1] which addressed the required standards for a business to pay punitive damages in North Carolina.  Blue Ridge Health Care Center (“Blue Ridge”) operated a nursing home with a “vent unit,” which is a “[s]pecial facility for ventilator-dependent patients.”[2]   According to North Carolina law, vent units must provide at least 5.5 hours of nursing care per patient per day, and “[t]he direct care nursing staff shall not fall below a registered nurse and a nurse aide I at any time during a 24-hour period.”[3]  However, in a conscious effort to cut costs and increase profit, Blue Ridge consistently failed to meet these requirements by understaffing the vent units with nurses and caretakers, and by not providing the proper bedside supplies for adequate care.[4]  As a result of understaffing in the vent unit or a lack of bedside supplies, Del Ray Baird, Bettie Mae Kee, and Elizabeth Jones all died in Blue Ridge’s vent unit.[5]

The Parties’ Arguments and the District Court’s Ruling

The Plaintiff estates filed suit against three Defendants: Blue Ridge; CareOne, the owner of Blue Ridge; and CareVirginia Management, which helped manage Blue Ridge.[6]  All of the former Blue Ridge employees who testified at trial actually testified for the Plaintiffs.[7]  Defendants, on the other hand, only had two witnesses, each of whom were expert witnesses.[8]

In the district court, a jury returned verdicts awarding both compensatory and punitive damages for each of the three Plaintiffs.[9]  The jury awarded compensatory damages in the amount of $50,000 for Plaintiff Baird, $300,000 for Plaintiff Jones, and $300,000 for Plaintiff Kee.[10]  In addition, the jury awarded each Plaintiff punitive damages of $1,523,939.16.[11] The Defendants then moved for judgment as a matter of law.[12]  In supporting their motion, the Defendants argued that Plaintiffs failed to produce evidence of an aggravating factor, which is necessary for an award of punitive damages under North Carolina law.[13]  The Defendants also argued that the Plaintiffs failed to produce the necessary evidence to support a verdict in favor of Plaintiff Jones.[14]  The district court granted the motion as to Plaintiffs’ punitive damage awards; however, the district denied the motion as to the award of compensatory damages to Plaintiff Jones.[15]  The Plaintiffs appealed the grant of judgment for Defendants in regards to the punitive damages awards bringing the case to the Fourth Circuit.[16]  The Defendants then cross-appealed the denial of their motion regarding Plaintiff Jones’ award of compensatory damages.[17]

Under North Carolina law, a plaintiff can only recover punitive damages if the plaintiff proves that “the defendant is liable for compensatory damages and that one of [three possible] aggravating factors was present and was related to the injury for which compensatory damages were awarded.”[18]  Those three possible aggravating factors are “Fraud,” “Malice,” and “Willful or wanton conduct.”[19]  The Plaintiffs argued that the conduct of the Defendants’ managers did indeed constitute “willful or wanton conduct” as defined by North Carolina law.[20]  North Carolina law defines “willful or wanton conduct” as “the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.”[21]  The Plaintiffs did not assert that fraud or malice were present.[22]

The district court found two reasons why the Plaintiffs failed to present sufficient evidence to support an award of punitive damages.[23]  The district court’s first reason was that the “Plaintiffs failed to present evidence showing Defendant’s officers, directors, or managers participated in or condoned the asserted willful or wanton conduct.”[24]  The second reason the district court offered was that “even if such participation or condonation were assumed, Plaintiffs failed to present sufficient evidence to show they had the requisite state of mind to establish any aggravating factor.”[25]  As discussed below, the Fourth Circuit held that both reasons offered by the district court were in error.

As to the Defendants’ cross-appeal regarding compensatory damages awarded to Plaintiff Jones, the Defendants argued that the evidence was insufficient for the medical malpractice claim regarding Elizabeth Jones’s death.[26]  Plaintiff Jones died when the caregivers were unable to replace her tracheostomy tube in a timely manner.[27]  The Defendants argued that the evidence was insufficient because it failed to show that there was a breach of the applicable standard of care by the caregivers who tried to replace Plaintiff Jones’ tracheostomy tube or that the acts or lack thereof of the caregivers proximately caused Plaintiff Jones’ death.[28]

The Fourth Circuit’s Holding

First, the Court concluded the district court erred in finding Defendants’ managers did not participate in or condone decision-making that constituted an aggravating factor that would result in punitive damages. [29]  Under North Carolina law, companies are only liable for punitive damages if their “officers, directors, or managers . . . ‘participated in or condoned the conduct constituting the aggravating factors giving rise to punitive damages.’”[30]  Former Blue Ridge Administrator Ben McGovern clearly participated in the decisions to cut staffing and supplies, which was behavior that constitutes the aggravating factor “willful or wanton conduct.” [31]  The Court considered five factors (“the Everhart Factors”) to determine whether McGovern was a “manager” and would subject Blue Ridge to punitive damages: “(1) the employee was designated a manager; (2) the employee had supervisory powers; (3) the employee gave input on hiring and firing decisions and participated in personnel meetings; (4) the employee set work schedules for other employees; and (5) the employee handled money.”[32]  Here, the Court found Ben McGovern satisfied every Everhart factor except handling money, and thus, he was a “manager” for the purposes of subjecting Blue Ridge to punitive damages.

The Court next found Blue Ridge’s policy was to “[c]ut staffing to save money . . . .”[33]  While the district court found there was nothing in the record to show a corporate policy of cutting staff, the Fourth Circuit identified clear evidence in the trial testimony to make such a finding.[34]  For example, a former Administrator and a former Business Office Manager both left because of pressure to make cuts and because staffing was dangerously and obviously short.[35]

Furthermore, the Court found “[c]lear and convincing evidence that Defendants were fully aware of the dangerously inadequate staffing level . . . .”[36]  The Court noted that, “[i]n the medical context, a medical provider acts willfully and wantonly when she knowingly, consciously, and deliberately places a patient at risk of harm by acting contrary to known protocols and procedures.”[37]  The Court concluded that even though there was no “wicked purpose,” the staffing and supply cuts were “[a] deliberate corporate policy enacted to increase profits by millions of dollars.”[38]  Blue Ridge was repeatedly warned about the dangers of the staffing and supply cuts, but Blue Ridge failed to remedy the issues and even continued to make cuts and intensify the dangers.[39]  The Court declared, “[t]his is precisely the type of egregious conduct punitive damages are meant to deter.” [40]  The Court also briefly rejected Blue Ridge’s argument and upheld the district court’s determination that there was sufficient evidence to show Blue Ridge breached the requisite standard of care by failing to provide adequate bedside supplies, which proximately caused Elizabeth Jones’ death.[41]

Conclusion

The main issue in the case was whether the district court properly granted Blue Ridge’s motion for judgment as a matter of law that Plaintiffs failed to present sufficient evidence to find Blue Ridge liable for punitive damages.[42]  However, this conclusion would turn on several prerequisite determinations.  First, since North Carolina does not permit respondeat superior for punitive damages, the Court had to determine whether Blue Ridge’s managers participated in activities sufficient to constitute willful and wanton conduct.[43]  After considering the Everhart Factors, the Court concluded that former Administrator Ben McGovern was a “manager”, and thus Blue Ridge could be liable for punitive damages if his conduct constituted the aggravating factor “willful and wanton.” [44]

The next issue the Court addressed is whether Blue Ridge condoned willful and wanton conduct.  This issue was easily resolved because the Court found “[c]lear and convincing evidence that the Defendants were fully aware of the dangerously inadequate staffing levels yet did nothing or worse.”[45]  Another issue was whether Blue Ridge had the necessary state of mind for their conduct to constitute an aggravating factor.  The Court again found clear and convincing evidence that Blue Ridge “[e]ngaged in willful or wanton conduct by intentionally failing to follow federal and state laws on staffing . . . .”[46]  This conduct showed a “reckless indifference” to the patients, and thus the willful and wanton state of mind was satisfied.[47]

Further, the Court briefly addressed whether there was sufficient evidence to show Blue Ridge’s negligence proximately caused Elizabeth Jones’ death.  It was clear that the inadequate staffing and failure to provide proper bedside supplies proximately caused Elizabeth Jones’ death, so that issue was quickly dispensed with.[48]

Lastly, the Court had to adjust the amount of punitive damages awarded in order to comply with North Carolina law.  The jury awarded compensatory damages in the amount of $50,000 for the estate of Del Ray Baird, $300,000 for the estate of Elizabeth Jones, and $300,000 for the estate of Bettie Mae Kee.[49]  The jury also awarded $1,523,939.16 in punitive damages for each plaintiff. However, North Carolina law limits punitive damages to three times compensatory damages, or $250,000, whichever is higher.[50]  In accordance with North Carolina law, the Fourth Circuit reduced the award of punitive damages to $250,000 for the estate of Del Ray Baird, $900,000 for the estate of Elizabeth Jones, and $900,000 for the estate of Bettie Mae Kee.[51]

[1] 901 F.3d 231(4th Cir. 2018).

[2] Id. at 235.

[3] 10A N.C. Admin. Code 13D.3005 (1996).

[4] Vandevender, 901 F.3d at 235.

[5] Id. at 236.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 235.

[10] Id. at 236.

[11] Id.

[12] Id. at 235.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] N.C. Gen. Stat.§ 1D-15 (2017).

[19] Id.

[20] Vandevender, 901 F.3d at 239.

[21] N.C. Gen. Stat. § 1D-5(7) (2017).

[22] Vandevender, 901 F.3d at 239.

[23] Id. at 237.

[24] Id.

[25] Id.

[26] Id. at 240–41.

[27] Id. at 236.

[28] Id. at 241.

[29] Id. at 238.

[30] Id. at 238 (quoting N.C. Gen. Stat. §1D-15 (2017)).

[31] Id.

[32] Id. at 238 (quoting Everhart v. O’Charley’s Inc., 683 S.E.2d 728, 738 (N.C. Ct. App. 2009)).

[33] Id. at 238.

[34] Id.

[35] Id. at 239.

[36] Id.

[37] Id. (quoting Clarke v. Mikhail, 779 S.E.2d 150, 160 (N.C. Ct. App. 2015)).

[38] Id. at 240.

[39] Id.

[40] Id. (citing N.C. Gen. Stat.§ 1D-1(1995)).

[41] Id. at 240.

[42] Id. at 237.

[43] Id. at 238.

[44] Id. at 239.

[45] Id.

[46] Id.

[47] Id. at 240.

[48] Id.

[49] Id. at 236.

[50] Id. at 237 (citing N.C. Gen. Stat. §1D-25 (2017)).

[51] Id. at 241.

By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]

 

[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

By: Nick McCauslin & Tristan Meagher

Sierra Club v. United States Army Corps of Engineers

In this civil case, the Sierra Club asked the Court to set aside the Army Corps of Engineers’ (“Corps”) verification which allowed for construction of the Mountain Valley Pipeline through West Virginia using the “dry cut” method for the construction of river crossings which would take four to six weeks to complete. West Virginia regulates the construction of river crossings, requiring them to be completed within 72 hours. The Fourth Circuit vacated the Corps’ verification, finding that the Corps did not have the authority to require the use of the “dry cut” method in lieu of West Virginia’s restriction. A more thorough analysis as to why the Corps lacked the authority is expected in a future opinion.

United States v. Gibbs

In this criminal case, Erik Gibbs sought an en banc rehearing of his case after a divided panel of the Court affirmed his twenty-four-month sentence violating the terms of his supervised release. The Court denied the petition. In voting to deny the petition and vacate the panel’s order, Judge Wynn noted that since Gibbs was now released from prison, his case is moot. The court elected to deny the petition prior to the filing of concurring, separate, and dissenting opinions, even though this practice is atypical, in order to avoid unnecessary delay or prejudice to the defendant.

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.