The VLW Blog

The 4^th US Circuit Court of Appeals, with an opinion by Judge Designate Sandra Day O’Connor, rejected the claim of a man who said his free speech rights were violated because his fellow members of the Fredericksburg City Council would not let him pray “in Jesus’ name.”

The opinion is here. The Associated Press has comment from the ACLU and the Rutherford Institute, which took up the case of the Rev. Hashmel Turner.

By Peter Vieth

The 4th U.S. Circuit Court of Appeals, long considered the most reliably conservative of the federal appellate courts, is beginning to look more like the U.S. Supreme Court, at least on terrorism issues.

Nine judges who participated in the case of Ali al-Marri, the American resident and Qatari citizen who has been designated an enemy combatant, wrote seven different opinions covering 216 pages.

The judges split 5-4 on two key issues in Al-Marri v. Pucciarelli. The court held that President Bush has the authority to order the indefinite detention of civilians captured in the U.S. But it also held that al-Marri must be given an additional opportunity to challenge his military detention in South Carolina federal court.

The New York Times has an analysis of the case.

As some of its most consistently conservative members have left or taken senior status, the court was split 5-5 between Republican and Democratic appointees until former Supreme Court of Virginia Justice G. Steven Agee joined the court recently. Neither Agee nor another Republican appointee, Judge Dennis W. Shedd, participated in the Al-Marri case.

Judge William B. Traxler Jr., a Democratic appointee, was the swing vote on the two issues, with the other judges voting along party lines.

By Alan Cooper

Self-promotion, especially on a matter of public interest, makes it very tough to win a libel case. That’s the clear, if hardly new, message from the 4th Circuit in Hatfill v. The New York Times Co.

The suit was based on a series of five columns in 2002 by Times writer Nicholas Kristof taking the FBI to task for not thoroughly investigating Dr. Steven J. Hatfill as the source of letters containing anthrax that were mailed in September and October 2001. Five people died from exposure to the toxin.

U.S. District Judge Claude M. Hilton in Alexandria granted summary judgment for Kristof and The Times after ruling that Hatfill, an expert on biological weapons, was a limited-purpose public figure. As such, Hatfill had to show that Kristof wrote the columns with reckless disregard for the truth, and the evidence demonstrated that Kristof believed that Hatfill was the prime suspect and had some information to support that belief, Hilton held.

Writing for the 4th Circuit panel, Judge Paul V. Niemeyer agreed. One can become a limited-purpose public figure by attempting to influence the outcome of a public controversy, Neimeyer noted. Hatfill attempted to limit the controversy to “who committed the anthrax attacks in 2001,” while The Times contended that the controversy was much broader – the threat from bioterrorism and the nation’s lack of preparation for it.

Niemeyer agreed that the broader topic was the one at issue and emphasized that Hatfill had sought out reporters, researchers and government agencies to offer his opinion on it. Hatfill therefore fit so squarely in the category of limited-purpose public figure that the panel had no need to consider Hilton’s alternative findings that he also was public official and an involuntary public figure, Niemeyer said.

The 4th Circuit opinion came less than three weeks after the federal government agreed to pay Hatfill $5.82 million to settle his claim that the FBI and the Justice Department had invaded his privacy and ruined his career in the anthrax investigation.
By Alan Cooper

A divided panel of the 4th U.S. Circuit Court of Appeals upheld yesterday the constitutionality of the lethal injection procedures Virginia uses to execute inmates sentenced to death.

The opinion, Emmett v. Johnson, had been watched closely because it was the first federal appellate decision since the U.S. Supreme Court decision, Baze v. Rees, that upheld the constitutionality of Kentucky’s method of executing inmates. Kentucky uses the same three-drug cocktail that Virginia uses, but the attorneys for Christopher Scott Emmett contended that there are enough differences in the way the drugs are administered to at least require a remand to district court for an evidentiary examination of those differences.

Fourth Circuit Judges William B. Traxler Jr. and Dennis C. Shedd concluded that the procedures were close enough that no remand is necessary.

Judge Roger L. Gregory dissented. He noted the recent observation by the Supreme Court that “[w]hen the law punishes by death, it risks its own sudden descent into brutality. . . .” Gregory said, “[F]ailing to remand to the district court for further fact-finding sends us tumbling faster into that abyss.”

By Alan Cooper

Lawyers who follow the 4th U.S. Circuit Court of Appeals know the Richmond-based court is not generous with published opinions.

According to a cover story in the June 2008 ABA Law Journal, the court, which has been short-handed for years, issued the lowest percentage of published opinions of all federal circuits in 2006 – 6 percent vs. 16 percent for the average of all circuits.

One academic study of appellate courts has suggested that appellate judges’ ideological preferences are different in published and unpublished opinion; judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions.

So it may pay to track that vast shadow world of unpublished opinions. At least that’s our intro to a round-up of recent unpublished decisions of interest to Virginia lawyers:

* Cop Can Check Car Exhaust System. A Waynesboro police officer could stop a car to check for an illegally altered exhaust system, based on what the officer heard. When the officer could still hear the muffler rumbling from 70 feet away, it didn’t matter that he stopped the car before he could see whether the driver had altered the factory muffler. The 4th Circuit said in its July 7 opinion in U.S. v. Cousins that any mistake by the officer in guessing the cause of the exhaust noise did not eliminate his “reasonable and articulable suspicion” that the exhaust system violated Va. Code § 46.2-1049, and the guns and drug residue need not be suppressed.

* Attorney’s Fees On Late Petition. In its June 16 decision in Gaskins v. BFI Waste Services LLC, the appellate court vacated an award of $427,374 in attorney’s fees and costs to two men who won their race-based Title VII hostile environment case against BFI Waste Services, holding that Alexandria U.S. District Judge Gerald Bruce Lee had no authority under FRCP 6(b) to sua sponte extend the time for the plaintiffs to file their fee petition.

The court said that on remand for consideration of “excusable neglect,” the district court would have to weigh the plaintiffs’ option of a malpractice action against the lawyers who had won their “difficult and time-consuming case” and to whom plaintiffs already had paid $240,000 in fees, against BFI’s expense for appeal of the fee award that could have been reviewed two years ago.

* No Breach Of Real Estate Contract. A buyer got his $100,000 deposit back when the 4th Circuit reversed judgment for the seller of a Spotsylvania County tract in a million-dollar deal that fell apart at the closing table. According to the June 12 decision in Herder v. Simms, the Alexandria federal district court erred in holding that, by waiting until the parties were at closing to raise title defects, the buyer had waived the defects and had to close or breach the contract

* Feds Not Bound by Numbers in Letter. A letter from a federal prosecutor trying to sell a drug defendant a deal for “15 years instead of 65” was cold comfort for the defendant after his guilty plea and sentence of 26 years. In U.S. v. Morgan, the standard merger clause and other terms in the written plea agreement, plus the defendant’s responses in court, supported the longer sentence. But in its July 3 decision, the 4th Circuit did remand to the Roanoke U.S. District Court for resentencing under U.S. v. Booker.

By Deborah Elkins

A doctors’ group can’t sue dairy companies that claim milk promotes weight loss under Virginia consumer protection laws, the 4th U.S. Circuit Court of Appeals ruled June 19.

One print ad for the “Milk Your Diet” angle of the ubiquitous “Got Milk?” campaign featured a svelte Brooke Shields sporting a milk moustache beside revised text that claims studies show that nutrients in skim or low-fact milk “can help maintain a healthy weight.”

A report in the LA Times also noted those studies were funded by the dairy industry and that last year “the Federal Trade Commission forced two national dairy organizations to stop claiming that dairy consumption can cause weight loss.”

The Physicians Committee for Responsible Medicine took up the cause in Virginia, suing dairy producers and trade associations under the Virginia Consumer Protection Act and under Virginia’s false advertising statute. The doctors’ group wanted a permanent injunction preventing future weight-loss claims in ads and a “corrective market campaign.”

U.S. District Judge Leonie Brinkema dismissed the suit, saying there is no private cause of action for injunctive relief under either statute.

In a 15-page unpublished opinion in Physicians Committee for Responsible Medicine v. General Mills Inc., Judge Paul Niemeyer affirmed Brinkema’s dismissal of the doctors’ suit.

When a liquor license is granted, the bar or restaurant agrees to let ABC agents come on the premises to inspect for violations.

But apparently something else was going on June 2, 2004, when a police narcotics task force in Manassas Park invaded the Rack ‘N’ Roll Billiard Club with over 50 officers.

According to the civil rights lawsuit filed by the bar owner, David M. Ruttenberg, heavily armed SWAT teams, in full tactical gear, ordered patrons and employees up against the wall to be searched. Only six or seven of the law enforcement personnel were agents of the Virginia Alcohol Beverage Control Board, he claimed.

In his complaint, Ruttenberg says that after a search that lasted one or two hours, the team discovered only one ABC violation: Ruttenberg kept two bottles of unchilled Mexican beer that should have been labeled as “samples.” A homeless man employed by Ruttenberg and working as a police informant, who allegedly had participated in on-site drug transactions orchestrated by local police, was the only person arrested.

The scale and scope of this police exercise is at issue in an unpublished case released yesterday from the 4th U.S. Circuit Court of Appeals.

In a 40-page per curiam opinion in Ruttenberg v. Jones, the appellate court reversed Senior U.S. District Judge T.S. Ellis’s dismissal of Ruttenberg’s claim challenging the reasonableness of the administrative search, saying “we simply do not know enough about the circumstances surrounding the search and its execution to determine whether the inspection was reasonably conducted” or whether the defendants were eligible for qualified immunity.

The Gambler got it right: you got to know when to fold ’em.

A Vienna employment lawyer unfortunately got it wrong when he pursued a worthless contract case past the point of patience for the defendant former employer. A federal court has ordered the lawyer to pay $26,057 to the company he sued for “unreasonably and vexatiously” multiplying legal proceedings.

Ruby Salvin had sold insurance policies on a commission basis as an independent contractor for American National Insurance Company. Her written contract stated either party could terminate the relationship with 30 days’ written notice.

When ANICO terminated Salvin, she sued for breach of contract, tortious interference and fraud, claiming the company altered her sales records to decrease the money it still owed her. A Norfolk federal judge dismissed the tort claims outright.

According to the unpublished June 10 opinion in Salvin v. American Nat’l Ins. Co., ANICO’s deposition of Salvin “made clear her remaining breach of contract claim lacked merit.” When ANICO’s lawyer approached Salvin’s lawyer, Thomas Hennessy, Hennessy refused to voluntarily dismiss the contract claim.

Hennessy then filed an opposition to ANICO’s motion for summary judgment that raised an alternative theory based on allegations not included in Salvin’s original complaint, complete with a new affidavit from Salvin that contradicted her deposition testimony.

After it won summary judgment, ANICO sought attorney’s fees against Hennessy under 28 U.S.C. § 1927, which penalizes any lawyer “who so multiplies the proceedings in any case unreasonably and vexatiously …”

U.S. District Judge Jerome B. Friedman said Hennessy should have taken the advice and dismissed the suit. But Friedman said Hennessy only had to pay for ANICO’s fees after Salvin’s deposition made it clear she had no case.

In upholding the fee award in its per curiam opinion, the 4th Circuit said the record supported a finding Hennessy acted in bad faith, even assuming the more stringent subjective standard applied.

An in-house lawyer’s warning that he represented the company, not its employees or CEO, meant the CEO could not use the attorney-client privilege to keep the lawyer from testifying before a federal grand jury.

In an unpublished decision June 11 in U.S. v. Investment Properties of America LLC, the 4th U.S. Circuit Court of Appeals upheld denial of a motion to quash by Richmond U.S. District Judge Robert Payne.

A federal grand jury issued the subpoena in August 2007 to Eric Perkins, the former chief legal officer for commercial real estate company Investment Properties of America LLC, as part of an investigation of the misuse of funds by the LLC and its CEO, Edward H. Okun. With support from outside counsel, IPA’s legal staff had begun its own investigation of alleged improper loans in October 2006, and Perkins prepared a series of memoranda for the corporation in which he repeatedly referred to himself as “in-house counsel” and recommended actions IPA should take going forward.

In a Nov. 21, 2006, memo, Perkins stated he was “obligated to advise the company that continuing this course of conduct will likely result in both civil and criminal liability,” and that, as in-house counsel, he “represent[ed] the company as opposed to its sole owner, officers, managers, or individual employees.”

Okun nevertheless asserted that Perkins represented him personally and could not talk to the grand jury. The district court didn’t buy Okun’s claim that he believed Perkins was his personal lawyer. Even if Okun had that subjective belief, Payne said, it was not reasonable.

Nor could Okun muzzle Perkins with assertion of a “common interest” privilege, the 4th Circuit panel said. The record showed that Okun likely refused to cooperate with Perkins’ internal investigation, and Okun could not show any ongoing legal enterprise or strategy.

Challenging the government is not working out very well for Robert Steinburg. In 2005, he was tossed out of a Chesterfield County Planning Commission meeting and charged with disorderly conduct after a heated exchange with a commission member. His civil rights suit against the commission was tossed out by federal district Judge Robert Payne last year. Now, the 4th U.S. Circuit Court of Appeals has upheld Judge Payne’s decision. The Richmond Times Dispatch has the story here, the 4th Circuit’s opinion is here.