231058.P John Doe v. Jane Doe

Author: Thacker
Decision: Affirmed
Case Type: Civil Private
Appeal From: EDNC
Originating Judge: Dever
Link: https://www.ca4.uscourts.gov/opinions/231058.P.pdf

The Fourth Circuit affirmed the district court’s decision to deny Appellant’s motion to proceed using the pseudonym “John Doe”, rather than his real name, after concluding that the district court did not abuse its discretion.

Appellant attended Tulane University in August 2018 and was on track to graduate in May 2022 prior to the events giving rise to this lawsuit. According to Appellee Jane Doe, Appellant had engaged in originally consensual sex with both her and another “Sue Roe” in early 2022. However, both women reported that after falling asleep, they had both awoken to him engaging in sexual activity. After rumors began spreading around the school, Appellant withdrew from Tulane. Appellant alleged that Appellee’s statement to Tulane investigators and the rumors spread about him were “false, defamatory, and contradicted by other evidence”, and that Appellee conspired with Sue Roe and submitted false evidence during the investigation. Tulane found Appellant responsible for sexual misconduct and expelled him from the university on May 8, 2022.

Appellant then filed this civil action against Appellee, alleging claims for defamation, abuse of process, tortious interference with contract, intentional infliction of emotional distress, and civil conspiracy. Along with the Complaint, Appellant filed an ex parte motion for leave to proceed using a pseudonym along with a supporting memorandum. In his motion, Appellant asked only “for leave to proceed under pseudonym.” Therefore, while Appellant’s supporting memorandum noted that Jane Doe and Sue Roe were pseudonyms and that “all students shall be identified herein by pseudonym as well,” the district court construed the motion only as one to allow Appellant to use a pseudonym for himself -- not as a motion for leave to use pseudonyms for Jane Doe, Sue Roe, or anyone else. After considering the applicable factors as set out by this court, the district court denied Appellant’s motion. Appellant then appealed.

The district court utilized five factors set forth in James v. Jacobson, 6 F.3d 233 (4th Cir. 1993) to consider when deciding motions to proceed by pseudonym. Appellant argued that the district court abused its discretion by determining that the factors weighed against anonymity, failed to consider irreparable harm to his reputation, and failed to balance Appellant’s privacy interest in anonymity against the public’s interest in open judicial proceedings.

After a full review of the five James factors, the Fourth Circuit held that the district court did not abuse its discretion because it did not rely on incorrect factual or legal premises, nor did it give any indication that it was acting by general rule.

The court then went on to Appellant’s second contention—the district court’s alleged failure to consider irreparable harm to his reputation. The court disposed of this argument immediately, as Appellant failed to make an argument about reputation apart from the James factors, so there was no reason for the district court to consider it separately.

Lastly, the court concluded that the district court balanced Appellant’s privacy interests extensively, dedicating two pages to the weighing of these interests. The Fourth Circuit court held that the district court carefully considered each of Appellant’s arguments and did not abuse its discretion in denying Appellant’s motion. Thus, Appellant was not allowed to proceed as a pseudonymous plaintiff, and the district court’s ruling was affirmed.

211764.P Brian Bowen, II v. Adidas America Inc.

Author: Rushing
Decision: Affirmed
Case Type: Civil Private
Appeal From: DSC
Originating Judge: Anderson
Link: https://www.ca4.uscourts.gov/opinions/211764.P.pdf

Brian Bowen II was a promising and exceptional basketball player who aspired to play professionally. After graduating high school in 2017, Bowen committed to play NCAA Division I basketball for the University of Louisville in exchange for a full, four-year scholarship. The scholarship agreement awarded Bowen a full, four-year scholarship covering tuition, fees, books, housing, meals, and miscellaneous expenses in exchange for Bowen’s commitment to play on the men’s basketball team. However, before playing his first game, Bowen’s father was found to have accepted a bribe in connection with Bowen’s decision to play for Louisville.

In 2017, Federal prosecutors unveiled a criminal complaint against Christian Dawkins, James Gatto, Merl Code, and Munish Sood, the key players in the bribery scheme. The complaint charged that these defendants facilitated bribes to student-athletes or their family members to entice the athletes to play basketball at Division I schools sponsored by apparel company Adidas America, Inc. Although evidence suggested that Bowen was ignorant of his father’s misdeeds, his father’s decision to accept the bribe violated NCAA rules and undermined Bowen’s eligibility to play NCAA basketball. Consequently, Louisville cut Bowen from the team, although he was allowed to keep his scholarship. Bowen then transferred to the University of South Carolina, voluntarily giving up the scholarship.

Bowen later sued the central figures in the bribery scheme under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq., to recover treble damages, including lost future professional earnings and the attorney’s fees and costs he incurred trying to restore his NCAA eligibility. The defendants moved to dismiss, arguing in part that Bowen had not alleged a cognizable injury to his business or property as necessary to pursue the claim, and even if he had, he not plausibly alleged that the defendants proximately caused his injuries. The district court agreed and granted summary judgment in favor of the defendants. Bowen then appealed.

Bowen contended that the defendants caused him to suffer three cognizable business or property injuries: (1) loss of benefits secured by his scholarship agreement with Louisville; (2) loss of his NCAA eligibility; and (3) loss of money spent on attorney’s fees attempting to regain his eligibility.

• The scholarship agreement: According to Kentucky contract law, an unambiguous contract will be enforced strictly to its terms. A court may only look “as far as the four corners of the document to determine the parties’ intentions.” Here, the agreement was unambiguous, and only provided to Bowen tuition, fees, books, housing, meals, and miscellaneous expenses. The agreement did not include “elite coaching, preferred playing positions on the court, athletic training, strength and nutrition services, competitive playing time, and experience reading game film,” as Bowen claimed. Because Bowen was allowed to keep the scholarship after leaving the team, the court held that Bowen had not demonstrated that he suffered a cognizable injury under his scholarship agreement.
• NCAA Eligibility: Bowen next contended that the loss of his NCAA eligibility was a cognizable business or property injury. The court easily disposed of this argument, holding that “a student-athlete’s eligibility is a status, not a thing ‘of material value’ that athlete ‘own[s] or possess[es].’” For example, there was no indication Bowen could sell, lease, or otherwise transfer his eligibility to another person.
• Attorney’s Fees: Because Bowen’s lost NCAA eligibility was not an injury to a business or property interest under § 1964(c), the legal fees and expenses he incurred attempting to restore his eligibility are similarly not cognizable.

Thus, the court affirmed the district court’s judgment.

United States v. Cuevas

Case Type: Criminal
Appeal From: EDNC
Author: Niemeyer, Thacker, and Rushing

In an unpublished opinion, the Fourth Circuit affirmed the district court’s 295 month prison sentence after the appellant possessed and distributed methamphetamine. After an initial remand to the district court, the district court sentenced Cuevas to 295 months’ imprisonment. Cuevas argued that the district court erred in calculating the drug weight attributed to him at sentencing and in applying a sentencing enhancement for being the leader or organizer of a criminal investigation. Cuevas further asserted that the district court abused its discretion by imposing three unreasonable conditions of supervised release and did not sufficiently explain why the conditions were appropriate.

The court first determined that the sentencing error was harmless as the error: (1) did not result in a different sentence, and (2) the prison term did not amount to an abuse of discretion. The court explained that the district court was substantively reasonable in its decision to sentence Cuevas to a 295-month prison term, and all of the district court’s reasoning was adequately explained. Thus, the district court did not abuse its discretion and the order was affirmed.

US v. Bryan Ogle

Case Type: Criminal
Author: Rushing

The Fourth Circuit affirmed the trial court’s ruling that a Tennessee conviction for aggravated assault is a violent felony within the meaning of the Armed Career Criminal Act (“ACCA”). The ACCA’s “force clause” refers to violent force- force that is capable of causing physical pain or injury to another person. The Fourth Circuit held that Ogle knowingly driving his car into a police cruiser while the deputy was inside constituted violent force, and thus, his violation of the statute constituted a violent felony under the ACCA.

Cesar Solis-Flores v. Merrick Garland

Case Type: Immigration
Author: Rushing

The Fourth Circuit upheld the Board of Immigration Appeals’ (“the Board”) order of removal because petitioner, Cesar Solis-Flores, was ineligible for cancellation of removal because his prior conviction for receipt of stolen property was a crime involving moral turpitude. However, the Fourth Circuit remanded the case to the Board anyway, as the Board incorrectly held that Solis-Flores had been given significant notice of his bond obligation.

In 2012, the Department of Homeland Security issued Solis-Flores a notice to appear, charging that he was removable as an alien present in the United States without having been admitted or paroled. Solis-Flores admitted he was removable as charged and applied for cancellation of removal. After conducting a hearing, the immigration judge concluded that Solis-Flores was not eligible for cancellation of removal because he had previously been convicted of a crime involving moral turpitude. This conviction was for receiving stolen property.  However, the immigration judge granted Solis-Flores the privilege of voluntary departure in lieu of removal.

Solis-Flores appealed to the Board. The Board upheld the immigration judge’s ruling, as Solis-Flores’s conviction was a crime involving moral turpitude. The Board then declined to reinstate voluntary departure because Solis-Flores had not posted the required bond despite receiving proper notice of his obligation to do so. The Board held that relevant regulation did not require the immigration judge to provide advance notice of the bond requirement. Solis-Flores then petitioned the Fourth Circuit.

The Fourth Circuit first considered Solis-Flores’s challenge to the denial of his application for cancellation of removal. Solis-Flores disputed (1) under what circumstances receipt of stolen property involves moral turpitude, and (2) whether his statute of conviction applies. The Court disagreed with Solis-Flores, holding that this was a crime of moral turpitude, as, in accordance with precedent, the Board’s determination rested on the fact that receipt of stolen property could be a crime involving moral turpitude only if it required proof of the receiver’s intent to permanently deprive the victim of her property. The Fourth Circuit also rejected Solis-Flores’s second argument: that the Virginia statute Solis-Flores violated did not qualify as a crime involving moral turpitude. Virginia courts have identified four elements required for conviction under the violated statute, most important of which is “That at the time he bought or received them, or aided in concealing them, he knew they had been stolen.” Because knowledge that the property was stolen is an element, Solis-Flores’s conviction qualified as a crime involving moral turpitude.

Lastly, the Fourth Circuit considered the Board’s refusal to remand to the immigration judge for a new grant of voluntary departure. After denying cancellation of removal, the immigration judge granted Solis-Flores voluntary departure. However, Solis-Flores did not post the mandatory bond. On appeal to the Board, Solis-Flores argued that the immigration judge failed to comply with 8 C.F.R. § 1240.26(c)(3)(i), which required the immigration judge to inform an alien of the bond obligation before granting voluntary departure. The Board rejected this argument, holding that advanced notice is required only for discretionary conditions on voluntary departure and not for mandatory conditions like the bond requirement. Thus, the Board concluded the immigration judge had not erred and denied remand.

The Fourth Circuit held that the Board erred as a matter of law. The relevant regulation unequivocally required that the immigration judge, “in all cases”, is to inform an alien of the bond amount and deadline “before granting voluntary departure.” Thus, the Fourth Circuit granted the petition in part and remanded to the Board to consider Solis-Flores’s request for remand to the immigration judge for a new period of voluntary departure with the required advisals.

Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC

Author: Harris
Case Type: Civil; TCPA
Appeal From: S.D.W.V.
Originating Judge: Chambers
Link: https://www.ca4.uscourts.gov/opinions/221279.P.pdf

The Fourth Circuit held the district court improperly dismissed plaintiff dental office’s TCPA complaint against the publisher of a desk reference manual.  The publisher sent an unsolicited fax describing its manual as “convenient,” “trusted, [and] FDA-approved” and offering the manual free of charge to the fax recipient.  Plaintiff alleged that the publisher earned a commission from the manual’s publication, and the commission relied on how many copies the publisher distributed to medical practitioners.  As alleged, this unsolicited fax touting the quality of a product offered at no cost to the recipient was sufficiently commercial to be an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act, such that plaintiff’s complaint adequately stated a claim under the TCPA.  

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Ponce-Flores v. Garland

Author: Rushing
Case Type: Immigration
Appeal From: Board of Immigration Appeals
Link: https://www.ca4.uscourts.gov/opinions/212377.P.pdf

The Fourth Circuit denied Petitioner Jesus Ponce-Flores’ petition for review of the denial of his application for deferral of removal to Honduras.  Although his risk of torture was substantial, Ponce-Flores failed to demonstrate that a government official would more likely than not inflict or acquiesce in it. 

Younger v. Crowder

Case Type: Prisoner Civil Rights
Appeal From: DMD
Originating Judge: Bennett
Author: Richardson
Link: https://www.ca4.uscourts.gov/opinions/216422.P.pdf

The Fourth Circuit affirmed a federal jury’s award of $700,000 to Younger, a pretrial detainee, after three Maryland corrections officers viciously beat him.  Crowder, the officer’s responsible warden and a defendant in the underlying action, knew of the attack and failed to properly report it to an investigative division.  The Fourth Circuit held Crowder was not entitled to qualified immunity because Younger clearly established Crowder’s knowledge of and failure to act following the officers’ retaliatory attack against Younger constituted deliberately indifferent conduct in violation of the Fourteenth Amendment. 

In re: Weldon Stewart, Jr.

Case Type: Successive Habeas Corpus
Appeal From: DSC
Author: Quattlebaum
Link: https://www.ca4.uscourts.gov/opinions/21278.P.pdf

The Fourth Circuit denied Stewart’s application to file a successive habeas petition, finding that Stewart failed to meet the “rigorous newly discovered evidence requirements” under 28 U.S.C. § 2244(b)(2)(B), specifically to demonstrate that given the new evidence, no reasonable factfinder would find Stewart guilty of voluntary manslaughter in his girlfriend’s death. In his successive petition, Stewart alleged he remembered a repressed memory of his girlfriend dying by suicide.  When compared to the extensive evidence offered by the state against Stewart, Stewart’s discovered memory was not reasonably likely to meet the § 2244 standard.  Neither could the alleged memory suffice for an independent substantive ground for relief absent any constitutional error in Stewart’s underlying state proceeding.

211680.U Progressive Northern Insurance Company v. Donald Ladue

Case Type: Civil Private
Appeal From: DSC
Originating Judge: Norton
Link: https://www.ca4.uscourts.gov/opinions/211680.U.pdf

The Fourth Circuit held that, for purposes of motor vehicle coverage, a Class II Insured cannot stack UIM coverage limits, even when his carriers agreed that the policy was portable. It is well-settled under South Carolina law that a Class II insured can not stack UIM coverage limits. Because the accident at issue did not involve a covered vehicle, it was undisputed that Donald Ladue was a Class II insured, and thus could not stack coverages.

Ladue attempted to avoid this prohibition by arguing that Allstate and Progressive could not place limits on the portability of UIM coverage under South Carolina law. The court held that, while this was true, Ladue was still attempting to stack UIM coverages as a Class II insured, which is prohibited. Thus, the court affirmed the district court’s order.

221430.U Harold Hoblick v. US

Case Type: Civil U.S.
Appeal From: DSC
Originating Judge: Norton
Link: https://www.ca4.uscourts.gov/opinions/221430.U.pdf

The Fourth Circuit held that the United States’s hiring and retention decisions were grounded in public policy, and therefore the discretionary function exception did not apply. Thus, the United States was immune from suit.

Harold and Miriam Hoblick brought a negligence claim against the United States after Harold was assaulted and injured by a crewmember on board the USNS Maury. The district court dismissed the action for lack of subject matter jurisdiction, finding that the United States was entitled to sovereign immunity on the Hoblicks’ claims.

The Fourth Circuit affirmed, holding that the United States is generally immune from suit. However, there is a limited waiver to this immunity known as the discretionary function exception, which requires the application of a two-prong test. At issue here was the second prong: whether the challenged conduct is based on considerations of public policy. The court found that the United States’ hiring practices were grounded in public policy, and therefore the exception did not apply.

222034.P John and Jane Parents 1 v. Montgomery County Board of Education

Case Type: Civil Private
Appeal From: DMD
Originating Judge: Grimm
Link: https://www.ca4.uscourts.gov/opinions/222034.P.pdf

Overview:

The Fourth Circuit dismissed a claim that the Montgomery County Board of Education’s “Guidelines for Gender Identity for 2020-2021” unconstitutionally usurped parents’ fundamental right to raise their children under the Fourteenth Amendment. Before reaching the merits of this argument, the court dismissed the case for lack of standing, as the parents did not allege a current injury, certainly impending injury, or substantial risk of future injury.

Detail:

The Montgomery County Board of Education adopted Guidelines for Gender Identity for 2020–2021 that permit schools to develop gender support plans for students. The Guidelines allow implementation of these plans without the knowledge or consent of the students’ parents. They also authorize the schools to withhold information about the plans from parents if the school deems the parents to be unsupportive.In response, three parents with children attending Montgomery County public schools challenged the portion of the Guidelines that permit school officials to develop gender support plans and then withhold information about a child’s gender support plan from their parents. Terming it the “Parental Preclusion Policy,” the parents alleged the policy unconstitutionally usurped the parents’ fundamental right to raise their children under the Fourteenth Amendment.

However, before reaching the merits of the parents’ argument, the parents must have alleged that that the Parental Preclusion Policy caused an injury to them sufficient to give them standing. The Fourth Circuit determined that they had not. The parents did not allege that that their children had gender support plans, were transgender or were even struggling with issues of gender identity. As a result, they had not alleged facts that the Montgomery County public schools had any information about their children that was currently being withheld or that there was a substantial risk information will be withheld in the future. Thus, under the Constitution, they did not allege the type of injury required to show standing. The court went on to state that, “Absent an injury that creates standing, federal courts lack the power to address the parents’ objections to the Guidelines. That does not mean their objections are invalid. In fact, they may be quite persuasive. But, by failing to allege any injury to themselves, the parents’ opposition to the Parental Preclusion Policy reflects a policy disagreement. And policy disagreements should be addressed to elected policymakers at the ballot box, not to unelected judges in the courthouse. So, we remand to the district court to dismiss the case for lack of standing.”

US v. Michael Young

Case Type: Criminal
Appeal From: DSC
Originating Judge: Seymour

Link: https://www.ca4.uscourts.gov/opinions/224373.U.pdf

The Fourth Circuit held that a 180-month mandatory minimum sentence does not plainly violate the Eighth Amendment. The Court affirmed that Apellant Michael Kenneth Young’s term-of-years sentence was not grossly disproportionate to his crime – two counts of possessing a firearm as a convicted felon – and thus, did not violate the Eighth Amendment.

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221066.P US v. Ilana Bangiyeva

Case Type: Civil U.S.
Appeal From: EDVA
Originating Judge: O'Grady

Link: https://www.ca4.uscourts.gov/opinions/221066.P.pdf

The Fourth Circuit held that the Government’s rights had been violated when the district court ordered that the wife of a tenant in common was allowed to stay in the tenant’s home after the Government assumed his ownership rights. The Government argued that as a now tenant in common of two-thirds of the property, it was entitled to seek the partition and sale of the property. By only allowing the Government a lien on the property, the district court stripped it of core property rights otherwise enjoyed by tenants in common under New York state law. The Court agreed and overturned the district court’s ruling.

221320.P John Massey, Jr. v. Virginia Polytechnic Institute

Case Type: Civil Private
Appeal From: WDVA
Originating Judge: Dillon
Link: https://www.ca4.uscourts.gov/opinions/221320.P.pdf

Overview:
John Massey filed a lawsuit in Virginia state court asserting federal claims against his former employer, Virginia Polytechnic Institute and State University (“Virginia Tech”). After taking a voluntary nonsuit of the action and refiling in federal district court ten days later, Virginia’s motion to dismiss the case on statute of limitation grounds was granted. Massey then appealed, arguing that under VA law, a voluntary nonsuit tolls the limitations period as long as the action is refiled within six months after the nonsuit was granted. The Court of Appeals agreed with Massey, vacated the district court’s order, and remanded for further proceedings on Massey’s complaint.

Detailed:
John Massey, a long-term employee of Virginia Tech, had a double hernia that caused pain and limited his daily life activities. Massey had surgery in April 2019 and took ten days of leave to recover. On July 29, 2019, Virginia Tech informed Massey that his position would be abolished on October 31, 2019, because of financial issues. Believing this termination to be retaliation based on his disability, Massey filed an action against Virginia Tech in Virginia state court asserting claims under § 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794. Massey later filed a motion for a voluntary nonsuit, which was granted by the court, dismissing Massey’s complaint. Massey then refiled in federal district court on January 29, 2021.

Virginia Tech immediately moved to dismiss this new complaint, arguing that the claim was not filed within the applicable one-year limitation period. Massey argued that the claim was timely because Virginia’s nonsuit statute tolled the statute of limitations. Virginia Tech’s reply brief relied on Fourth Circuit opinions Shofer v. Hack Co. and Woodson v. Allstate, stating that Virginia had not waived sovereign immunity for RA claims filed in state court, and therefore the state court did not have jurisdiction over Massey’s complaint, making state court a “clearly inappropriate forum”, and thus rendering the tolling statute inapplicable. See Shofer v. Hack Co., 970 F.2d 1316, 1319 (4th Cir. 1992); Woodson v. Allstate, 855 F.3d 628, 634 (4th Cir. 2017). The district court agreed and granted the motion to dismiss. This appeal followed.

After analyzing the applicable statutes to RA claims in Virginia, the Court overturned the ruling, holding that “It would thus appear from the plain language of the statutes that Massey complied with the requirements of the nonsuit statute and is entitled to the tolling of the limitations period granted by Va. Code Ann. § 8.01-229(E)(3).” The Court disagreed with Virginia Tech’s argument that Shofer and Woodson controlled this issue, as they were distinguishable from the issue presented.

Those cases both involved claims subject to exclusive federal jurisdiction. However, federal and state courts have concurrent jurisdiction as to claims brought under the Rehabilitation Act. Thus, state court was not a “clearly inappropriate forum” as defined by Shofer and Woodson.

Virginia Tech also argued that the state court was an inappropriate forum within the meaning of Shofer and Woodson because Virginia retains sovereign immunity against RA claims in state court. Because Virginia has not passed a law consenting to private suits asserting violations of the RA, state court was a clearly inappropriate forum. The Court disagreed with this argument as well. Once again, the Court distinguished Shofer and Woodson, stating that these cases were applying federal law and tolling rules, while the question the Court needed to resolve was whether tolling is available under Virginia law. The Court ultimately held that Massey’s complaint was valid and triggered the tolling provisions of Va. Code § 8.01-229(E)(3). Thus, Massey’s complaint was timely filed. The Court vacated the district court’s order and remanded for further proceedings on Massey’s complaint.