August 7, 2013 4th Circuit published opinions

Ackerman et al. v ExxonMobil Corporation

ExxonMobil removed the Ackerman case, but not a case involving almost all the same plaintiffs. The district court concluded extraordinary circumstances existed and abstained under the Colorado River doctrine. ExxonMobil only appealed the threshold determination of whether two parallel actions existed. The panel, with one judge concurring only in result, affirmed. The majority held that 28 USC 1446 only applies to the case which is removed. Because there was another case in state court which was amended to state almost the same claims and parties, there were two parallel cases. The fact that an injunction could have been issued does not void the amendment and in any event the district court announced it would not have issued an injunction. The concurrence argued the district court committed multiple errors including erroneously finding the plaintiffs did not act fraudulently in filing the amendment in the retained state court, failed to recognize that it had authority to enjoined the retained state case and failed to recognize that Public Law 109-58 section 1502 allows removal of claims involving MTBE (which is the underlying cause of action here). However, because issuing the 1446 injunction is highly discretionary, the judge concurred as he was uncomfortable ordering the district court to issue the injunction.

Santos v Frederick County Board of Commissioners

Santos was arrested on a civil immigration warrant by sheriff’s deputies not authorized to enforce federal immigration awl. She sued under 42 USC 1983. The district court granted summary judgment to all defendants. The panel affirmed in part and reversed and remanded in part. The panel held that the initial encounter was not a seizure as the officers were on routine patrol, went into a public area, stayed at least 6 feet back and did not use threatening or officious tones. The panel held that Santos was seized when the officers waved her to stay on the ground as a reasonable person would understand he or she was not free to leave. The panel held consistent with other federal courts to consider the matter, that absent federal permission, local police may not arrest or detain individual based on known or suspected civil violations of immigration law. It reasoned this rule serves the two policies of respecting congressional choice to not criminalize mere illegal presence and the Attorney general’s discretion in enforcing immigration laws. Here, the deputies violated the 4th Amendment by seizing Santos without permission or direction of the federal government at the time of the seizure as no agent of the federal government directed them to detain Santos. The deputies were also aware that the warrant was for deportation which is per se civil not criminal in nature. However, the right to be free from this violation was not clearly established at the time of the incident as the United States Supreme Court had not ruled on the issue at the time, the 4th Circuit had not recognized the right at the time of the incident and there was a split of authority in other circuits. The panel reversed as to the County and other municipal defendants as qualified immunity does not apply to them and remanded for analysis of the claims against them.

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