U.S. Fourth Circuit: July 2010 Archives
U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

July 2010 Archives

Airline Pilots Association's RICO Suit

US Airlines Pilots Ass'n v. AWAPPA, LLC, 08-1858, involved a US Airline Pilots Association's (USAPA) suit against the America West Airlines Pilots Protective Alliance, LLC (AWAPPA) and others, pursuant to the Racketeer Influenced and Corrupt Organization Act (RICO), seeking an injunction and damages claiming that the defendants engaged in extortionate acts that constitute a pattern of racketeering activity.  In affirming the district court's judgment, the court held that the district court did not err in granting defendants' motion to dismiss the complaint, as USAPA has failed to state a cognizable RICO claim because the appropriate "commonsensical, fact-specific" examination of the allegations in USAPA's complaint fails to yield a pattern of racketeering activity.  Also, the district court did not abuse its discretion in denial of leave to amend the complaint, nor did it err in denying plaintiffs' request for a temporary restraining order and preliminary injunction.

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McBurney v. Cuccinelli, 09-1615, concerned a challenge to the district court's dismissal of all parties on jurisdictional grounds, in plaintiffs' 42 U.S.C. section 1983 suit seeking declaratory and injunctive relief against the Attorney General of Virginia and others, claiming that the Virginia's Freedom of Information Act (VFOIA) violates the dormant commerce clause and the Privileges and Immunity Clause of the U.S. Constitution.

The court affirmed the district court's dismissal of the Attorney General and other defendants from the suit as, the Attorney General has not enforced, threatened to enforce, or advised other agencies to enforce the VFOIA against the plaintiffs.  However, the court reversed and remanded as to the dismissal of the plaintiffs as, the district court erred in dismissing plaintiffs for lack of standing, given that the complaint stated sufficient facts to support standing.

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State of North Carolina ex rel. Cooper v. Tennessee Valley Auth., 09-1623, concerned a challenge to the district court's entry of an injunction requiring immediate installation of emissions controls at four Tennessee Valley Authority (TVA) electricity generating plants in Alabama and Tennessee.  In reversing, the court held that, where TVA's plants cannot logically be public nuisances under Alabama and Tennessee law where TVA is in compliance with EPA National Ambient Air Quality Standards (NAAQS), the corresponding State Implementation Plan (SIPs), and the permits that implement them, as these standards impose more stringent requirements than source state nuisance law.

Sloas v. CSX Transp. Inc., 09-1249, concerned a challenge to the district court's judgment in favor of the plaintiff in a sheetmetal worker's suit against his employer for sustaining on-the-job injuries, pursuant to Federal Employers Liability Act (FELA).  In affirming the judgment in favor of the plaintiff, the court held that, the RRA benefits, including those under Tier II, are a collateral source that may not be considered in determining a FELA award; and 2) the district court did not err in submitting the matter of contributory negligence to the jury.

Ostergren v. Cuccinelli, 09-1723, concerned a First Amendment challenge to Virginia's Personal Information Privacy Act, which prohibits intentionally communicating another individual's social security number to the general public. In affirming in part, the court held that the First Amendment does reach plaintiff's publication of Virginia land records containing unredacted SSNs. The court also affirmed the district court's August 22, 2008 decision, as enforcing section 59.1-443.2 against plaintiff for the Virginia land records posted on her website would violate the First Amendment as Virginia's failure to redact SSNs before placing land records online means that barring plaintiff's protected speech would not be narrowly tailored to Virginia's interest in protecting individual privacy.  Further, there is a lack of jurisdiction to consider whether the First Amendment prohibits Virginia from enforcing section 59.1-443.2 against plaintiff for publishing non-Virginia public records containing unredacted SSNs.  However, the court reversed the district court's June 2, 2009 decision entering a permanent injunction, as the district court abused its discretion by not tailoring the scope of the remedy to fit the nature and extent of the constitutional violation.

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H.B. Rowe Co. Inc. v. Tippett, 09-1050, concerned a contractor's suit challenging a North Carolina statute that requires prime contractors to engage in good faith efforts to satisfy participation goals for minority and women subcontractors on state-funded construction projects. 

The court affirmed in part, reversed in part, and remanded the district court's judgment that the statutory scheme is constitutional both on its face and as applied. The court held that the State has met its burden of producing a strong basis in evidence for its conclusion that minority participation goals were necessary to remedy discrimination against African American and Native American (but not Asian American or Hispanic American) subcontractors.  Court also held that the statutory scheme is narrowly tailored to achieve the State's compelling interest in remedying discrimination in public-sector subcontracting against African American and Native American subcontractors.  However, the court held that the State has failed to justify its application of the statutory scheme to women.

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US v. Pettiford, 09-4119, concerned the government's challenge to the district court's order granting defendant's petition for post-conviction relief from the enhanced federal sentence of 188 months' imprisonment and reducing the sentence to a term of 100 months' imprisonment in a prosecution of defendant for being a felon in possession of a firearm.

In reversing and remanding the matter with instruction to reinstate the origianl sentence, the court held that the district court erred in granting defendant's petition because he did not show, nor could he show, that the vacated sentences alone rendered his federal sentence unlawful on one of the specified grounds.  The court also held that by failing to challenge his remaining predicate sentences at sentencing or on direct appeal, defendant procedurally defaulted on this claim that the district court improperly enhanced his sentence under the ACCA.  Lastly, the court held that under Maybeck, actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from actual innocence of the predicate crimes.

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Qui Tam Action Re Construction of U.S. Embassy in Baghdad

US v. First Kuwaiti Gen. Trading & Contracting Co., 09-1899, concerned a plaintiff's qui tam suit under the False Claims Act against his former employer, claiming that the company billed falsely for deficient work in connection with construction of the U.S. embassy in Baghdad and that it retaliated against him for action taken in furtherance of his FCA claims. In affirming the district court's grant of defendant's motion for summary judgment, the court held that plaintiff has produced no evidence either of knowing misrepresentations on defendant's part or having been mistreated for any actions taken on behalf of his FCA claims.

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Plus, a Criminal Matter Involving Sex Offender Registration

Kennedy v. Allera, 08-8513, concerned a challenge to the district court's denial of petitioner's habeas petition and a motion for an injunction to prohibit the Parole Commission from requiring him to register as a sex offender and challenging the constitutionality of SORNA.  In affirming the district court's judgment, the court held that the probation officer acted within his discretion in imposing the registration requirement as SORNA lawfully imposes, as a matter of federal law, registration obligations directly on sex offenders, such as defendant.  The court also held that the petitioner is not relieved of the duty to register by any restriction in Maryland law or by Maryland's failure to implement SORNA, and rejected petitioner's Tenth Amendment challenge.

Imaginary Images, Inc. v. Evans, 09-1199, concerned a suit by three exotic dance nightclubs, claiming First Amendment, vagueness, and overbreadth challenges to Virginia's alcohol licensing program that permits clubs to serve beer and wine but not mixed beverages.  In affirming the judgment of the district court, the court held that, under the standard of immediate scrutiny applicable to policies aimed at the harmful secondary effects of sexually oriented entertainment, Virginia's policy passes constitutional muster.  The court further held that the public interest served by the policy is substantial, the restriction on the clubs mild, and the burden on First Amendment values slight.

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Torres v. O'Quinn, 07-7340, concerned a former inmate's motion for a refund of the fees collected from his prison trust account in excess of twenty percent, that were taken to satisfy the filing fee requirement for his two appeals of the dismissal of two civil actions against prison officials.  In denying the motion, the court held that 28 U.S.C. section 1915(b)(2) permits only twenty percent of an inmate's preceding month's income to be withheld from a trust account, notwithstanding that, as here, the inmate had two in forma pauperis appeals pending before the court.  However, under the circumstances of this case, the court declines to order a refund because the amount withheld from his account and remitted on his behalf during his incarceration were actually owed and properly collected.

Ni v. Holder, 09-1584, concerned a Chinese citizen's petition for review of a BIA's denial of his application for withholding of removal.  In denying the petition in part and dismissing in part, the court held that the petitioner cannot establish a claim for withholding of removal based solely on his wife's forced abortion.  The court also held that the BIA did not err in denying the claim as petitioner has not presented any evidence so compelling that no reasonable factfinder could fail to find that he has shown past persecution or fear of future persecution in his own right.  Lastly, the court dismissed petitioner's claim that he is entitled to remand in order to present additional evidence for lack of jurisdiction.

Long v. Crowley, 08-2371, concerned plaintiffs' suit against the developer of a condominium complex seeking to rescind their contracts and obtain refunds of their deposits, claiming violations of the Interstate Land Sales Full Disclosure Act (ILSFDA).  In reversing the district court's grant of defendant's motion for summary judgment, the court held that to qualify for the Improved Lot Exemption under section 1702(a)(2), the sales contract must obligate the seller to build and deliver the required structure within two years of the date that the purchaser signs the contract and incurs obligations, rather than within two years of the date that the seller signs the contract.  Here, the sales contracts for the 182 condominiums did not obligate defendant to construct the condominiums within two years of the date that the purchasers signed the contracts and incurred obligations, and as such, these contracts were not exempt from regulation under ILSFDA.  Therefore, because the 192 sales contracts were not exempt, the 100 Lot Exemption could not be relied on to exempt the remaining condominiums because there were more than 100 lots or units in the development that were not exempt.

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US v. Nicholson, 08-6347, concerned a defendant's second appeal of the district court's second denial of his petition for habeas relief, claiming that he was deprived of his Sixth Amendment right to effective assistance of counsel because his lawyer had an actual conflict of interest.  In reversing the denial and remanding the matter for resentencing, the court held that defendant is entitled to section 2255 relief because a self-defense departure motion was inherently in conflict with interests of counsel's other client, and thus, defendant has proven the necessary link between the counsel's conflict of interest and his failure to move for a self-defense departure.  Furthermore, the government's suggestion that defendant's habeas corpus petition is moot because he has no chance of successfully pursuing a self-defense departure on resentencing is rejected.

Lin v. Holder, 09-1269, concerned a Chinese citizen's petition for review of the BIA's denial of his application for asylum and related relief, arising from events involving China's one-child policy.  In granting the petition, the court held that the IJ's adverse credibility determination was erroneously predicated on unrelated facts derived from another case, which is manifestly contrary to law and constitutes an abuse of discretion, and this was not harmless error.

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Former National Guard Colonel's Fourth Amendment Suit

Aikens v. Ingram, No. 08-2278,  concerned a challenge to the district court's order dismissing the action without prejudice for lack of subject matter jurisdiction for failure to exhaust any available intramilitary remedies, in a former colonel's suit against his former colleagues at the North Carolina Army National Guard, claiming that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Iraq.

In affirming the judgment, the court held that the district court did not abuse its discretion in denying plaintiff's motion to reopen the judgment under Fed Rule of Civ. Proc. 60(b)(6), because to the extent that plaintiff rests his argument on the district court's earlier purportedly erroneous dismissal of his case, his remedy was to appeal, not to file a Rule 60(b)(6) motion.

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US v. Luck, 09-6641, concerned a challenge to the district court's denial of defendant's motion to set aside his conviction on the basis of ineffective assistance of counsel in a prosecution of defendant for conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine.  In reversing denial and vacating and remanding the conviction, the court held that the trial counsel was ineffective in failing to request an informant instruction and this ineffectiveness prejudiced the outcome of defendant's trial.

US v. Alston, 09-4375, concerned a challenge to the district court's imposition of an enhanced sentence based on a prior conviction in a prosecution of a defendant for being a felon in possession of a firearm.  In vacating the sentence and remanding for resentencing, the court held that the defendant's Alford plea to a second-degree assault did not necessarily rest on facts establishing his participation in a type of assault that qualifies as a violent felony.

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MCI Constructors, LLC. v. City of Greensboro, 09-1606, concerned a challenge to the district court's grant of the defendant-city's motion to confirm an arbitration award in the amount of $14,939,004 in a contract dispute concerning a construction of a wastewater treatment plant.  In affirming the decision, the court held that the district court did not abuse its discretion in certifying the judgment as final under Rule 54(b), primarily because the relationship between the adjudicated and unadjudicated claims was severed by virtue of the parties' own admissions.  The court also held that the district court did not err in denying plaintiffs' motion to vacate the arbitration awards, and that the district court did not abuse its discretion in denying plaintiffs' motion to remand as the damages award is not ambiguous and the arbitration agreement did not require the arbitration panel to issue a reasoned award.

US v. Perez, No. 08-5078, concerned a challenge to the district court's imposition of a 96-month sentence in a conviction of defendant for unlawful possession of a firearm and ammunition by a person previously convicted of a felony.  In affirming the sentence, the court held that the district court did not err in applying a 2-point sentencing enhancement pursuant to U.S.S.G. section 5K2.3. The court also held that the district court's determination that defendant's actions had caused a significant disruption of a governmental function was not clearly erroneous, and that the totality of the circumstances demonstrates that defendant's sentence is substantively reasonable.

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