Wake Forest Law Review

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.

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 Hayley Degnan

Facts

In 2015, Ross Abbott (“Abbott”), a student from the University of South Carolina (“USC”) met with USC’s director of campus life to approve a “Free Speech Event” hosted by two student groups, intending to draw attention to free speech threats across college campuses.[1] After its approval, the event proceeded on November 23, 2015, during which time, Abbott and other students circulated handouts detailing incidents of censorship at USC and on other college campuses, and displayed posters, including a “large red swastika” and the word “wetback.”[2] Directly following the event, the University’s Office of Equal Opportunity Programs (“EOP Office”) received three written complaints, including accusations that students involved in hosting the event made sexist and racist remarks.[3] The next day, Carl Wells (“Wells”), USC’s Assistant Director of the EOP Office, sent Abbott a letter that (1) instructed him to contact the office to appear for a required meeting, (2) stated the University may move to investigate and impose sanctions, and (3) claimed to have a “Notice of Charge” attached, although this notice was later revealed to be a clerical error.[4] Two weeks later, Wells had the mandated meeting with Abbott to discuss the complaints; he explained that this meeting was standard practice under USC’s “Student Non-Discrimination and Non-Harassment Policy” following the receipt of student complaints, and he offered Abbott the opportunity to explain Abbott’s own understanding of what transpired at the event. On December 23, 2015, two weeks after their meeting, Wells informed Abbot that the University found no cause for further investigation or sanction.[5]

Procedural History

In February 2016, Abbott and the two student groups involved in hosting the “Free Speech Event” (“Plaintiffs”), filed suit against multiple USC officials, alleging violations of their First Amendment rights. Plaintiffs made two claims: (1) that the University’s investigation procedures in connection with the discrimination and harassment complaints impermissibly chilled their free expression under the First Amendment, and (2) the University’s harassment policy on its face violated the First Amendment because it was overly broad and exceedingly vague.[6] Both parties moved for summary judgment on the first claim, and the district court granted summary judgment to the members of the university (“Defendants”). The district court also found in favor of the Defendants on the second claim, without reaching the merits due to the Plaintiffs’ lack of standing.[7]

The first issue considered by the district court involved whether the Plaintiffs’ speech had been so restricted as to constitute a First Amendment injury when Defendants required Abbott to attend a meeting in conjunction with the University’s “Student Non-Discrimination and Non-Harassment Policy.”[8] The court held that the Plaintiffs’ had suffered such an injury in the form of a “chilling effect” on their speech because the Plaintiffs could have reasonably feared discipline and self-censored otherwise protected speech during the investigation process.[9] However, the court ultimately held that the temporary chill on plaintiffs’ First Amendment speech, while present, was constitutional given USC’s narrowly drawn investigation practices under the “Student Non-Discrimination and Non-Harassment Policy” to achieve its compelling end of upholding the rights of its students to be free from illegal discrimination and harassment.[10]

The second issue considered by the district court was whether Plaintiffs had standing to bring a facial challenge and seek injunctive relief against Defendants’ policy. The court held that plaintiffs lacked the standing necessary to seek an injunction because they could not point to a non-speculative claim of future injury.[11] The Fourth Circuit Court of Appeals addressed both issues on appeal, first determining whether the district court erred in granting Defendants’ summary judgment motion on the as-applied First Amendment challenge, considering both (1) whether a First Amendment harm befell the plaintiffs, and (2) whether the Defendants’ “Student Non-Discrimination and Non-Harassment Policy” and related investigation practices survived under strict scrutiny review. 

Plaintiffs’ Arguments

The Plaintiffs advanced two major arguments in support of their claim that the University’s “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights by requiring Abbott to participate in a meeting with Wells.[12] First, they asserted that the investigation practices of the University used in accordance with the policy “chilled” their ability to exercise protected speech. In support, they explained that the inquiry process, which the University undertook to abide by its own policy, caused them to “reasonably fear” disciplinary action if they chose to sponsor other events.[13] Thus, they decided to cancel an annual Marijuana Legalization Rally, avoided putting on any additional events, and generally shied away from engaging in student discourse, which was a major part of their operations on campus. Furthermore, plaintiffs suggested that the “Notice of Charge” referenced in the letter and the mandate of a meeting, which came from an authoritative figure at the University would reasonably make any college student of “ordinary firmness” self-censor his or her expression out of fear.[14] Additionally, the Plaintiffs relied on Fourth Circuit authority to relay this “ordinary firmness” standard for self-censorship impeding on First Amendment rights.[15] Plaintiffs also suggested that this chilling effect extended from the date Wells sent Abbott the letter to the date when the action was filed, which is when Plaintiffs contended they first felt comfortable reengaging in their full First Amendment rights.

In addition, Plaintiffs argued that the investigative practices used by the Defendants in conjunction with the “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights because the process was not the least restrictive means to meet the University’s goal of protecting student rights.[16] Plaintiffs did not dispute that the University has a compelling interest in ensuring students are free from illegal discrimination and harassment at school; yet, they contested the University’s means of carrying out that end via their investigation under the “Student Non-Discrimination and Non-Harassment Policy.”[17] They argued that the University’s inquiry process was neither “necessary nor narrowly drawn” because the University was able to handle the student complaints without involving the Plaintiffs. To further this argument, Plaintiffs stressed that Defendants should have “weeded out” any insubstantial or frivolous complaints before resorting to the inquiry process.[18] Additionally, Plaintiffs contended that even if the Defendants rightfully resorted to investigating following some sort of screening, the defendants commenced the incorrect form of inquiry; they should have spoken to the complaining students or witnesses of the accused discriminatory or harassing behavior first.[19] Then, following this independent investigation, the Defendants could have contacted Abbott and determined how to proceed.

Defendants’ Arguments

In general, Defendants argued that they did not violate the First Amendment as a matter of law and that qualified immunity protected them from damages liability for any claimed harm by the Plaintiffs.[20] To further this argument, Defendants pointed out that they did not choose to take any action against the Plaintiffs in relationship to the “Free Speech Event” or ask them to refrain from exercising their full First Amendment rights during the time between the event and the letter from Wells or the letter and the meeting with Wells to lead them to self-censor. Furthermore, the Defendants noted that even after the meeting between Wells and Abbot that occurred as a result of its “Student Non-Discrimination and Non-Harassment Policy, the University did not impose any sanctions or restrictions on the Plaintiffs that may have harmed their abilities to express their First Amendment rights in this context.[21] As a more direct response to the Plaintiffs’ arguments about experiencing a “chilling” effect as a result of the letter from Wells, the Defendants argued that the Plaintiffs failed to establish that they actually experienced any such “chilling” or harm. None of the Plaintiffs identified any specific events they wished to sponsor and refrained from sponsoring during the time in question.[22]

In response to the second argument, the Defendants alleged that their inquiry procedure under the “Student Non-Discrimination and Non-Harassment Policy” survived at strict scrutiny. First, the Defendants argued that it was necessary to investigate these complaints as non-frivolous because although the event was approved, USC’s director of Campus life who approved the event, was not physically present at the time the event took place. Thus, she could not see the context within which it occurred and could not know that it was being carried out in the manner or for the purposes that the Plaintiffs articulated.[23] Second, it is not clear that meeting with Abbott was a more “restrictive” form of inquiring about the nature of what transpired, and in fact, giving individuals the opportunity to present their positions is often beneficial to them.[24]

Court’s Holding 

The Fourth Circuit Court of Appeals ultimately affirmed the district court’s ruling on both claims. To begin its discussion of the first issue embedded in the Plaintiffs’ as-applied challenge, the court recognized the Defendants’ qualified immunity unless Plaintiffs could show both “(a) the violation of a constitutional right, and (b) that the right was “clearly established” at the time of the First Amendment violation.”[25] The court first considered whether plaintiffs’ contention that their speech was chilled amounted to a harm under the First Amendment that would entitle them to damages.[26] Although noting some of the irony and novelty associated with the specifics of this case, the court recognized a precedential case in this area of First Amendment claims where it was previously willing to find the Plaintiff entitled to damages for a past chilling of his rights.[27] The court found that the standard articulated in that case and by the district court below was that a chilling of speech is only recognizable as a First Amendment harm “if it is objectively reasonable.”[28] In defining “objectively reasonable,” the court held that the action which purportedly caused the chilling must be “likely to deter a person of ordinary firmness from the exercise of the First Amendment.”[29] The court agreed with the Plaintiffs’ argument on this point, holding, “we do not doubt that a college student reasonably might be alarmed and thus deterred by an official letter from a University authority referring to an attached ‘Notice of Charge.’”[30]

However, the Court rejected the Plaintiffs’ proposed timeline for when this chilling effect took place, which Plaintiffs argued extended from the time Abbott received the letter to the time of this action. It found that following the meeting between Wells and Abbott, Defendants explained that it would not take further action against the Plaintiffs, thus no student of ordinary firmness would continue to self-censor.[31] In fact, the court suggested that had the University taken the opposite approach following the meeting between Wells and Abbott, the students may have continued to be deterred from exercising their rights and had a stronger claim. Following this point, the court recognized that the “more difficult question” involved in the case at hand is whether the Plaintiffs experienced such a chilling during the time between the letter announcing the potential for a full investigation and the meeting.[32]

While the court expressed that it was willing to recognize that a student of ordinary firmness may have been chilled during this more difficult timeframe to distinguish, it suggested in order for the Plaintiff to recover damages for such a chilling “it is not enough to establish that a person could have engaged in self-censorship as a result of the University Defendants’ actions.”[33] Here, the Court appeared to find the Defendants’ argument that the Plaintiffs could not articulate a specific intended expression that was chilled as a result of this incident compelling.[34] Further, based on the Plaintiffs’ testimony, this time period appeared to overlap with the Thanksgiving holiday, final exam period, and start of winter vacation, suggesting that no such self-censorship kept them from activities on campus.[35] Thus, in relation to this first issue, the Court held that the University’s inquiry into the complaints under “Student Non-Discrimination and Non-Harassment Policy” did not actually amount to a “cognizable restriction on Plaintiffs’ speech.”

Despite finding for the Defendant on this issue, which defeated the Plaintiffs’ First Amendment claims, the court went on to consider whether any restriction on the Plaintiffs’ free speech survived under the strict scrutiny standard of review. Here, the court recognized that had the University’s procedure lead to actual self-censorship, Plaintiffs would have had to show that the investigation practice under the “Student Non-Discrimination and Non-Harassment Policy” was “necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.”[36] Since both parties had conceded that upholding a school environment that is free from illegal discrimination and harassment is a compelling end, the only part of the issue left to consider was whether the procedure was narrowly tailored to meet that end.[37] Ultimately, the court found that the investigative process under “Student Non-Discrimination and Non-Harassment Policy” was so tailored.[38]

The court rejected the Plaintiffs’ argument that the University should have screened these discrimination and harassment complaints as frivolous matters because there was allegedly harassing behavior and speech that occurred at the event, which a University cannot dismiss.[39] Furthermore, by contacting Abbott and not resorting to meeting with the complainants or other witnesses first, the court reasoned that the University not only afforded Abbott with greater due process, but also created a standard procedure under its “Student Non-Discrimination and Non-Harassment Policy,” which it could enact with ease and efficiency.[40] Therefore, the court agreed with the district court’s finding that the investigative process adopted by the University represented a “minimally invasive” narrowly tailored to the compelling end of prohibiting discrimination and harassment.

The Court also affirmed the district court’s ruling on the second claim on appeal, rejecting the Plaintiffs’ facial challenge to the “Student Non-Discrimination and Non-Harassment Policy” and request for injunctive relief based on their lack of standing.[41]

Conclusion

Although admittedly an “unusual First Amendment claim,” this case addresses the issue of free speech on college campuses, which as Plaintiffs’ “Free Speech Event” highlighted is a pertinent issue in today’s society.[42] While the Fourth Circuit appeared willing to recognize students’ claims that a chilling or self-censoring of First Amendment protected speech may amount to an actionable harm, it ultimately found that the Plaintiffs failed to establish such a chilling actually occurred in this case. Yet, by focusing much of the opinion on the Plaintiffs’ arguments on this issue and citing to Fourth Circuit precedent on the matter, it leaves open the opportunity to address the “chilling” effect University policies have on free speech again. Thus, despite its ultimate holding for the Defendants in this case, the Fourth Circuit presented some willingness to recognize First Amendment protections against campus policies, perhaps to a different result when not within the peculiarities of a case of this sort.

[1] Abbott v. Pastides, No. 17-1853, 2018 WL 3910682 at *1, *6 (4th Cir. Aug. 16, 2018).

[2] Id.

[3] Id. at *7.

[4] Id. at *7–*8.

[5] Id. at *9.

[6] Id. at *10.

[7] Id.

[8] Id. at *11.

[9] Id.

[10] Id. at *12.

[11] Id. at *12–*13.

[12] Id. at *14.

[13] Id.

[14] Id. at *17.

[15] See Cooksey v. Futrell, 721 F.3d 226, 236 (holding that a state regulatory board chilled plaintiff’s speech by taking actions that would reasonably deter or self-censor an individual from exercising his or her First Amendment rights fully).

[16] Abbott, 2018 WL 3910682, at *21.

[17] Id.

[18] Id. at *22.

[19] Id. at *23.

[20] Id. at *10.

[21] Id. at *16–*17.

[22] Id. at *19.

[23] Id. at *21–*22.

[24] Id. at *23.

[25] Id. at *13.

[26] Id. at *14.

[27] See Reyes v. City of Lynchburg, 300 F.3d 449, 455 (holding that a plaintiff may be entitled to damages under a First Amendment claim for a period, during the past where the plaintiff has alleged his rights were chilled).

[28] Abbott, 2018 WL 3910682, at *15.

[29] Id. (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

[30] Id. at *18.

[31] Id. at *17–*18.

[32] Id. at *18.

[33] Id. at *19; see also Reyes, 300 F.3d at 455 n. 8 (holding that because the plaintiff could not show he was deterred from a specific expression, he was not entitled to damages for a First Amendment claim based on a past chilling effect).

[34] Id.

[35] Id.

[36] Id. at *21 (citing Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, 393 (E.D. Va. 2008)).

[37] Id. at *20; see e.g. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (holding that strict scrutiny applies to content-based speech regulated under the First Amendment).

[38] Id. at *24.

[39] Id. at *22 (citing S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 76–77 (4th Cir. 2016)) (holding that a school may be found liable for a decision to not address student-on-student harassment).

[40] Id. at *24.

[41] Id. at *34.

[42] Id. at *14.

By: Lanie Summerlin

Henderson v. Bluefield Hosp. Co.

In this civil appeal, the National Labor Relations Board (“NLRB”) appealed the District Court’s refusal to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act. The NLRB sought preliminary injunctions against two hospitals until NLRB agency adjudication of a complaint filed against the hospitals by the National Nurses Organization Committee (“Union”) was complete. The injunctions would have required the hospitals to bargain with the Union in good faith, and NLRB argued the injunctions were necessary to protect the nurses’ fundamental right to be represented through collective bargaining. The District Court denied these injunctions because it ruled the NLRB failed to prove this type of relief was necessary to preserve the remedial power of the NLRB. The Fourth Circuit affirmed the District Court’s decision and emphasized that the NLRB has the burden of proving irreparable harm absent the injunction. Ultimately, the Fourth Circuit held the NLRB failed to meet this burden because its theories of harm were speculative; the NLRB failed to explain why its own forms of relief available after completion of the agency process would be insufficient.

U.S. v. Bell

In this criminal appeal, Quintin Bell (“Bell”) challenged his convictions of four counts of drug trafficking and one count of illegal possession of a firearm. Bell argued the District Court erred in (1) denying his motion to suppress statements he made to police officers who were executing a search warrant on his residence; (2) admitting evidence of another arrest of Bell under Federal Rules of Evidence Rule 404(b); (3) denying Bell’s motion to disclose the identity of a confidential informant; and (4) enhancing Bell’s sentence to 480 months’ imprisonment due to his prior convictions. The Fourth Circuit held the District Court did not err in denying Bell’s motion to suppress his statements because Bell was not being interrogated at the time the statements were made; the officer’s question was directed to Bell’s wife and Bell voluntarily answered. The Fourth Circuit also held the District Court did not abuse its discretion by admitting evidence of Bell’s other arrest because this evidence’s relevance to Bell’s motive and intent was not substantially outweighed by the risk of unfair prejudice to Bell. In regards to the confidential informant, the Fourth Circuit held the District Court did not err in refusing to disclose the informant’s identity because Bell failed to prove the informant’s identity was necessary to establish his own guilt or innocence. The Fourth Circuit also reviewed Bell’s criminal record and held that his 480 month sentence was appropriate due to the nature of the crimes on his record. Overall, the Fourth Circuit affirmed Bell’s convictions. Judge Wynn dissented; he argued the Fourth Circuit should have remanded the issue of Bell’s statements to police officers to the District Court for a determination of whether Bell perceived himself as being interrogated. Judge Wynn also argued that Bell’s prior convictions do not qualify as predicate convictions to enhance his sentence.

VanDevender v. Blue Ridge of Raleigh

This civil appeal focuses on the District Court’s decisions as to two judgment as a matter of law (“JMOL”) motions filed by Blue Ridge of Raleigh (“Blue Ridge”). Blue Ridge operated a long-term skilled nursing facility in Raleigh, North Carolina, but consistently failed to meet state-mandated staffing levels and supplies requirements. The estates of three deceased ventilator-dependent patients at Blue Ridge brought claims of wrongful death nursing home malpractice against Blue Ridge. The jury awarded compensative and punitive damages to each Plaintiff. However, the District Court granted Blue Ridge’s motion for JMOL as to all three Plaintiffs’ punitive damages awards because it ruled the Plaintiffs had not produced sufficient evidence. The District Court denied Blue Ridge’s motion for JMOL as to Plaintiff Jones’s compensatory damages. Plaintiffs appealed the JMOL as to their punitive damages, and Blue Ridge cross-appealed the denial of JMOL as to Plaintiff Jones’s compensatory damages. The Fourth Circuit held the District Court erred in granting JMOL as to the Plaintiffs’ punitive damages. Based on the record, the Fourth Circuit held that a jury could determine Blue Ridge’s staffing policies and managerial decisions constituted willful or wanton conduct. It held that the District Court erred by requiring the Plaintiffs to prove malice, which is not required for willful or wanton conduct. The Fourth Circuit emphasized that Blue Ridge failed to follow state and federal laws on staffing and intentionally failed to follow its own patient safety policies. Additionally, the Fourth Circuit affirmed the District Court’s denial of Blue Ridge’s JMOL motion as to Plaintiff Jones’s compensatory damages. There was sufficient evidence that Blue Ridge breached the standard of care it owed to Plaintiff Jones by being understaffed without proper supplies. The Fourth Circuit remanded with instructions for the District Court to enter punitive damages for all three Plaintiffs consistent with North Carolina’s statutory limits.