July 5, 2013 4th Circuit published opinions

Union Carbide Corporation v Richards 

Richards was awarded black lung survivor benefits under Section 1556 of the Affordable Care Act. The panel affirmed.  It held that 1556 created a new claim not merely a new theory of liability in that benefits area automatically awarded when a miner was receiving benefits at the time of his death without requiring causal link between the death and black lung. Thus, res judicata did not apply and her previously rejected claim did not prevent recovery as the rejection was for failure to prove a casual link. It also held the post enactment statement of a senator could not overcome the plain language of the statute and that cost containment was still being served as only about 12% of eligible claimants actually made a claim.

Sons of Confederate Veterans, Virginia Division v City of Lexington, Virginia

Sons and City entered a consent decree allowing Sons to display the Confederate flag n public property. In 2011, City allowed Sons to put Confederate flags on flag standards on lamp posts. It later passed an ordinance limiting the use of the standards to the federal, state and city flags. Sons sued alleging violation of the consent decree and the First Amendment. The district court granted judgment to City. The panel affirmed. It held that the standards were designated public forums as schools and social groups had been allowed to place flags other than the federal, state or local flags with City permission. However, City was free to close the standards to private actors and did so here. The panel held that no precedent required an inquiry into the City’s motivation and the panel declined to impose one particularly as other flags can be displayed on other public and private property. The panel finally held that the ordinance did not violate the consent decree because the standards are no longer public property available for the display of the Confederate flag.

Corey v United States Department of Housing and Urban Development

Department imposed a civil penalty against Corey based on his requirements that a rental applicant provide a doctor’s note that her autistic brother was not a threat to others, carry renters insurance and agree to be responsible for any property damage caused by the brother. The panel affirmed holding the requirements violated 42 USC 3604 because were based on disability, were not required of nondisabled applicants and were not based on individualized fear arising for concrete information.

United States v Aparicio-Soria 

Aparicio-Soria’s sentencing g guideline advisory range was increased based on the district court’s determination that Maryland’s resisting arrest crime is a crime of violence. The panel, 2-1, affirmed. The majority applied the categorical approach and held the indivisible resisting arrest statute required violent force as an element based on Maryland appellate authority and 4th Circuit authority holding Maryland’s common law resisting arrest a crime of violence for career offender purposes. The dissent argued that Maryland appellate authority actually allowed conviction based on offensive contact and that the standards for career criminal and guideline enhancements were different. He argued the majority wanted to impose coherence to federal sentencing law rather than focus on the issue at hand.

United States v Bolander 

Bolander was found to be a sexually dangerous person and committed to the custody of the Attorney General. The panel affirmed. It held the district court acted within its discretion to conclude that would have difficulty controlling his pedophilia given the lifelong nature of this condition, his failure to complete treatment and his massive collection of child pornography gathered while on parole. It held that Bolander’s due process rights were not violated as the delay in his hearing was justified by the constructional challenges to the commitment statute and by Bolander’s own actions in requesting new counsel and several continuances. The panel also held Bolander waived his psychotherapy privilege as he failed to raise it at his deposition, failed to timely raise it before trial and voluntarily gave privileged information to his expert.

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