U.S. Fourth Circuit: December 2009 Archives
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December 2009 Archives

Stone v. Instrumentation Lab. Co., No. 08-1970

In an employment retaliation action under the whistleblower provision of the Sarbanes-Oxley Act, grant of defendant's motion to dismiss in favor of remand to the appropriate administrative body for further proceedings is vacated and remanded as the plain language of section 1514A(b)(1)(B) unambiguously establishes a Sarbanes-Oxely whistleblower complainant's right to de novo review in federal district court if the Department of Labor has not issued a final decision and the statutory 180-day period has expired. 

Read Stone v. Instrumentation Lab. Co., No. 08-1970

Appellate Information

Argued: September 23, 2009

Decided: December 31, 2009

Judges

Opinion by District Judge Davis

Counsel

For Appellant:  Adam Augustine Carter, Employment Law Group, PC

For Appellee:  Robert Michael Shea, Morse Barnes-Brown & Pendleton, PC

US v. Matthews, No. 09-4005

Conviction of defendant for conspiracy to distribute marijuana and related crimes is affirmed where: 1) because the police department's policy authorizes the opening of closed containers encountered during an inventory search and the deputy adhered to that policy, the search falls within the inventory search exception, and thus, does not violate the Fourth Amendment; and 2) because the department's policy properly curtails the discretion of searching officers and the deputy adhered to that policy, the search falls within the inventory exception.     

Read US v. Matthews, No. 09-4005

Appellate Information

Argued: October 28, 2009

Decided: December 31, 2009

Judges

Opinion by Circuit Judge Duncan

Counsel

For Appellant:  James Orlando Broccoletti, Zoby & Broccoletti

For Appellee:   Peter Sinclair Duffey, Office of the US Attorney

Newport News Shipbuilding & Dry Dock Co. v. Holiday, No. 08-1129

In an action brought by plaintiff-longshoreman against defendant-employer, decision of the Department of Labor's Benefits Review Board (BRB) is affirmed in part, vacated in part, and remanded where: 1) the evidence relied upon by the ALJ is, for the purpose of rebutting an allegation of an aggravation of a prior injury, no evidence at all; 2) an award of plaintiff's attorney fees is remanded as it was an abuse of discretion for the BRB to look to an hourly rate appropriate ten years ago, arbitrarily adjusted with no regard to the fact of the case or the lodestar factors; and 3) BRB did not abuse its discretion to deduct 1.05 hours from plaintiff's appellate counsel in concluding that it did not sufficiently relate to appellate work.     

Read Newport News Shipbuilding & Dry Dock Co. v. Holiday, No. 08-1129

Appellate Information

Argued: September 22, 2009

Decided: December 29, 2009

Judges

Opinion by Circuit Judge Duncan

Counsel

For Appellant:  Jonathan Henry Walker, Mason Mason Walker & Hendrick, PC

For Appellee:   Joshua Thomas Gillelan, II, Longshore Claimants National Law Center

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., No. 08-2097

In an online-automobile dealer's action against a defendant-website company that allows consumers to comment on the quality of businesses, goods, and services, claiming that certain of these posted comments are false and harmful to its reputation, district court's grant of defendant-company's motion for summary judgment is affirmed as, the district court did not err in granting the Rule 12(b)(6) motion to dismiss because plaintiff failed to plead facts sufficient to show defendant was an information provider and not covered by Communications Decency Act (CDA) immunity. 

Read Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., No. 08-2097

Appellate Information

Argued: September 23, 2009

Decided: December 29, 2009

Judges

Opinion by Circuit Judge  Agee

Counsel

For Appellant:  Andrew Friedman, Patton Boggs, LLP

For Appellee:   Jonathan David Frieden, Odin Feldman & Pittleman, PC

Sepulveda v. Allen Family Foods, Inc., No. 08-2256

In an action brought by employees and their union against a poultry processing plant under the Fair Labor Standards Act (FLSA), judgment of the district court in favor of defendant is affirmed as the activity of donning and doffing protective gear constitutes "changing clothes" within the meaning of section 203(o) and is therefore not compensable under the prevailing customs or practices at the plant.  

Read Sepulveda v. Allen Family Foods, Inc., No. 08-2256

Appellate Information

Argued: October 28, 2009

Decided: December 29, 2009

Judges

Opinion by Circuit Judge  Wilkinson

Counsel

For Appellant:  C. Christopher Brown, Brown Goldstein & Levy, LLP

For Appellee:   Arthur Mortimer Brewer, Shawe & Rosenthal, LLP

Smith v. Smith, No. 08-7139

In an inmate's 42 U.S.C. section 1983 suit against a prison nurse claiming deliberate indifference to his serious medical needs, district court's judgment in favor of the defendant is reversed and remanded where: 1) the inmate made out a claim for a deliberate indifference and the district court erred in finding that he failed to state a claim under the Eighth Amendment; and 2) because the district court premised both the grant of the motion to dismiss and qualified immunity on its finding that plaintiff failed to allege deliberate indifference in his complaint, the immunity analysis was prematurely concluded on the erroneous basis that plaintiff did not plead facts sufficient to indicate defendant had deliberate indifference to his medical need.     

Read Smith v. Smith, No. 08-7139

Appellate Information

Argued: October 27, 2009

Decided: December 28, 2009

Judges

Opinion by Circuit Judge  Gregory

Counsel

For Appellant:  Jamal Malik Edwards, Kirkland & Ellis, LLP

For Appellee:   Samuel F. Arthur, III, Aiken Bridges Nunn Elliott & Tyler, PA

AES Sparrows Point LNG, LLC v. WIlson, No. 09-1539

Petition for review of the State of Maryland Department of the Environment's denial of a request for water quality certification, involving a proposed large-scale liquefied natural gas marine import terminal and pipeline project, is denied where: 1) Maryland waived any potential claim of sovereign immunity in connection with the present petition for review by expressly consenting to defending, in federal court, its decision to deny AES's Request for section 401(a)(1) Water Quality Certification; and 2) AES failed to establish any basis to disturb the Army Corps of Engineers' determination that Maryland had not waived its right to grant or deny AES's section 401(a)(1) Certification Request. 

Read AES Sparrows Point LNG, LLC v. WIlson, No. 09-1539

Appellate Information

Argued: September 24, 2009

Decided: December 22, 2009

Judges

Opinion by Circuit Judge  Hamilton

Counsel

For Appellant:  Jeffrey A. Lamken, Baker Botts LLP

For Appellee:   Adam Dean Snyder, Office of the Attorney General of Maryland

Levy v. Lexington County, No. 09-1550

In plaintiffs' action challenging a district's method of electing school board members claiming that the election process dilutes the voting strength of African-American voters, an order holding that the school board election system violates Section 2 of the Voting Rights Act of 1965 is vacated and remanded where: 1) the district court erred by considering only the elections that took place between 1984 and 2004; and 2) district court's application of the second and third Gingles factors was based on factual and legal errors. 

Read Levy v. Lexington County, No. 09-1550

Appellate Information

Argued: September 24, 2009

Decided: December 21, 2009

Judges

Opinion by Circuit Judge  Duncan

Counsel

For Appellant:  Allan Lee Parks, Jr., Parks Chesin & Walbert, PC

For Appellee:   Laughlin McDonald, ACLU

US v. Hawkins, No. 08-4576

District court's denial of a motion to sever carjacking charges from a felon possession charge by a defendant convicted of crimes related to carjacking and a subsequent arrest as a felon in possession of a firearm is affirmed in part, vacated in part and remanded where: 1) the district court erred in allowing joinder of the carjacking charges with the felon in possession charge because the charges are not of a same or similar character; 2) the misjoinder of the charges affected defendant's substantial rights because the misjoinder had substantial and injurious effect or influence in determining the jury's verdict; 3) defendant's conviction for being a felon in possession of a firearm is affirmed, but his sentence on this count is vacated as it was determined, in part, based on his convictions of the carjacking related crimes; 4) and defendant's conviction for carjacking related crimes is vacated. 

Read US v. Hawkins, No. 08-4576

Appellate Information

Argued: September 25, 2009

Decided: December 18, 2009

Judges

Opinion by Circuit Judge  Agee

Counsel

For Appellant:  Sicilia Englert, Lawlor & Englert, LLC

For Appellee:   Solette Allison Magnelli, Office of the US Attrorney

US v. Griffin, No. 08-4045

Defendant's conviction for being a felon in possession of a firearm is affirmed where: 1) the circumstances of a face-to-face encounter between an informant and an officer provided sufficient reasonable suspicion to justify the Terry stop of defendant's vehicle; and 2) given the circumstances confronting the officers, the brief protective search of defendant's vehicle was proper. 

Read US v. Griffin, No. 08-4045

Appellate Information

Argued: September 22, 2009

Decided: December 17, 2009

Judges

Opinion by Circuit Judge Shedd

Counsel

For Appellant:  Matthew Segal, Fedeal Defenders of Western North Carolina, Inc.

For Appellee:   Mark Andrews Jones, Office of the U.S. Attorney

Bostick v. Stevenson, No. 08-6331

In habeas proceedings involving claims of ineffective assistance of counsel, summary judgment against petitioner is reversed and remanded where: 1) the state procedural ground under which the district court found his claim to have been procedurally defaulted was not consistently applied at the time of his state proceedings; and 2) the performance of defendant's trial counsel was constitutionally deficient because counsel did not consult with defendant about an appeal following his conviction.  

Read Bostick v. Stevenson, No. 08-6331

Appellate Information

Argued: October 30, 2009

Decided: December 17, 2009

Judges

Opinion by Circuit Judge  Gregory

Counsel

For Appellant:  Daniel Vandergriff, Wake Forest University School of Law

For Appellee:   William Edgar Salter III, Office of the Attorney General

Walker v. Kelly, No. 08-11

In habeas proceedings, defendant's conviction and death sentence are affirmed where: 1) the district court properly conducted an evidentiary hearing on the Brady issue and rendered a decision on the merits; and 2) the district court properly determined that, even if defendant were able to show that the evidence at issue was withheld and that it was favorable to him, the alleged Brady material does not undermine confidence in the guilty verdict.     

Read Walker v. Kelly, No. 08-11

Appellate Information

Argued: September 22, 2009

Decided: December 16, 2009

Judges

Opinion by Circuit Judge  Traxler

Counsel

For Appellant:  Danielle Spinelli

For Appellee:   Katherine Baldwin Burnett

US v. Myers, No. 08-4343

Conviction of defendant for multiple drug offenses and sentence of 360-months' imprisonment is affirmed where: 1) the district court did not abuse its discretion in excluding the reverse 404(b) evidence as it was not of high probative value; and 2) defendant's sentence was procedurally and substantively reasonable.     

Read US v. Myers, No. 08-4343

Appellate Information

Argued: October 27, 2009

Decided: December 16, 2009

Judges

Opinion by Circuit Judge  King

Counsel

For Appellant:  Ann Loraine Hester, Federal Defenders Of Western North Carolina, Inc.

For Appellee:   Amy Elizabeth Ray, Office of the U.S. Attorney

In re: Crescent City Estates, LLC, No. 08-2367

28 U.S.C. section 1447(c) does not permit the imposition of legal fees on an attorney who erroneously removes a case from state to federal court. 

Read In re: Crescent City Estates, LLC, No. 08-2367

Appellate Information

Argued: October 29, 2009

Decided: December 7, 2009

Judges

Opinion by Circuit Judge  Wilkinson

Counsel

For Appellant:  Mark Jerome Friedman, DLA Piper US LLP

For Appellee:   W. Neil Eggleston, Debevoise & Plimpton, LLP

US v. Squirrel, No. 08-4150

In a conviction of defendants for being accessories-after-the-fact to first degree murder, judgment holding the defendants jointly and severally liable for additional restitution to the victim's estate in the amount of $1,459,854.22 is vacated and remanded as, unless a plea agreement provides otherwise, an order of restitution under the (Mandatory Victims Restitution Act of 1996) MVRA is to be based upon the loss directly and proximately caused by the defendant's offense, and here, the restitution paragraphs in defendants' plea agreements do not provide a valid basis for the district court's decision holding them jointly and severally liable to the victim's estate under the MVRA for her lost future income from the Tribe and her lost future wages.     

Read US v. Squirrel, No. 08-4150

Appellate Information

Argued: October 15, 2009

Decided: December 7, 2009

Judges

Opinion by Circuit Judge  Hamilton

Counsel

For Appellant:  Randolph Marshall Lee

For Appellee:   Jennifer A. Youngs, Office of the United States Attorney

US v. Rumley, No. 08-5269

In a prosecution for possession of a firearm by a convicted felon, district court's denial of defendant's motion to suppress a firearm seized from his vehicle during a traffic stop is affirmed as the district court did not commit plain error, or any error at all, in refusing to suppress the firearm as the police lawfully seized defendant's pistol when it came into plain view before any search of defendant's vehicle, and as such, Gant does not apply to the present facts.  

Read US v. Rumley, No. 08-5269

Appellate Information

Argued: October 29, 2009

Decided: December 7, 2009

Judges

Opinion by Circuit Judge  Motz

Counsel

For Appellant:  Allegra Mathilde Catha Black, Office of the Federal Public Defender

For Appellee:   Jean Barrett Hudson, Office of the United States Attorney

US v. Coleman, No. 08-5038

In a conviction of defendant for being a felon in possession of a firearm, arising from a consensual search of a bedroom by police and the seizure of a pistol resulting from the search while the police were investigating a break-in and a shooting at the defendant's residence, district court's grant of defendant's motion to suppress the pistol is reversed as, although the district court viewed the evidence through the lens of its later significance, the officers acted reasonably in seizing it based on what they knew at the time.   

Read US v. Coleman, No. 08-5038

Appellate Information

Argued: October 15, 2009

Decided: December 4, 2009

Judges

Opinion by Circuit Judge  Wilkinson

Counsel

For Appellant:  Thomas Ernest Booth

For Appellee:   W. Walter Wilkins, III

US v. Dawson, No. 08-4000

District court's imposition of a 70-months' sentence of defendant found guilty of conspiracy to distribute crack and powder cocaine is vacated and remanded as the defendant has met his burden of establishing plain error in the government's breach of the plea agreement to recommend the minor participant reduction at sentencing.   

Read US v. Dawson, No. 08-4000

Appellate Information

Argued: October 27, 2009

Decided: December 3, 2009

Judges

Opinion by Circuit Judge  Hamilton

Counsel

For Appellant:  Sandra Barrett

For Appellee:   Amy Elizabeth Ray, Office of the United States Attorney

US v. Johnson, No. 06-4391

Defendants' convictions for conspiracy and other crimes related to narcotic distribution is affirmed where: 1) district court did not abuse its discretion in denying a mistrial when a government witness took the witness stand and refused to testify; 2) prosecutor did not commit improper vouching of witness; 3) a defendant's claim that the evidence was insufficient to support her conviction is without merit; 4) there is no Confrontation Clause violation where expert witnesses present their own independent judgments, rather than merely transmitting testimonial hearsay, and are then subject to cross-examination; 5) any error in admitting a defendant's prior conviction for armed robbery for impeachment purposes was harmless, assuming that the district court erred in admitting the convictions; 6) sentence of a defendant is procedurally and substantively reasonable; and 7) a defendant's request to remand his case for resentencing in light of Amendment 706 to the Sentencing Guidelines is denied.   

 Read US v. Johnson, No. 06-4391  

Appellate Information

Argued: September 24, 2009

Decided: December 2, 2009

Judges

Opinion by District Judge Wilkinson

Counsel

For Appellant:  Gregory Bruce English, English & Smith; Daniel H. Ginsburg, Bennett & Bair, LLC; Jason E. Silverstein, Roland Walker & Mark Zayon

For Appellee:  Deborah A. Johnston, Office of the United States Attorney

Francis v. Giacomelli, No. 08-1908

In a case brought by a police commissioner and his deputies following a highly public dispute with the mayor of Baltimore resulting in the termination of their employment, dismissal of the action is affirmed as, based on the facts alleged in the complaint, the complaint fails to articulate any claim for relief that is plausible on its face. Furthermore, the mayor, against whom the allegations of due process violations were directed, is entitled to qualified immunity.     

Read Francis v. Giacomelli, No. 08-1908

Appellate Information

Argued: September 23, 2009

Decided: December 2, 2009

Judges

Opinion by District Judge Niemeyer

Counsel

For Appellant:  Neal Marcellas Janey, Sr.

For Appellee:  Matthew Wade Nayden

US v. Thompson, No. 08-4994

In a prosecution for possession by a felon of a firearm, district court's imposition of a 92-month sentence instead of the minimum 15-years' imprisonment is vacated and remanded as a North Carolina conviction for breaking and entering under North Carolina General Statutes section 14-54(a) is, as a matter of law, a violent felony within the meaning of ACCA. 

Read US v. Thompson, No. 08-4994

Appellate Information

Argued: September 24, 2009

Decided: December 2, 2009

Judges

Opinion by District Judge Niemeyer

Counsel

For Appellant:  Ann Margaret Hayes, Office of the United States Attorney

For Appellee:  Debra Carroll Graves, Office of the Federal Public Defender