October 16, 2013 4th Circuit published opinions

Scott v Family Dollar Stores, Inc.

Scott brought a putative class action against Stores alleging sex discrimination in hiring and compensation. The district court denied leave to amend the complaint as futile under Dukes v Wal-Mart and prejudicial to Stores and denied class certification. The panel, 2-1 with a concurrence, reversed in part. The majority held that the denial of leave to amend was err as the new allegations fleshed out a claim of centralized control which, if true, places the claims outside the Wal-Mart decision. Further, much of the delay in the case is due to Stores litigation strategy and the case is far from trial. The majority remanded the case for a new analysis of class certification. The concurrence noted the majority only allowed the amended complaint to be filed which is reasonable given the change in the law announced in Wal-Mart. The dissent argued that the amended complaint was actually a completely new legal theory diametrically opposed to the original complaint in that the original theory was subjective bias and the new theory is centralized mandatory bias. Thus, the dissent argued that the proposed amendment was prejudicial by injecting a new theory 3 years into the case, was a bad faith effort to get out from plaintiffs’ wrong guess as to whether Wal-Mart would be affirmed, and was futile as the allegations were only that middle managers had discretion to administer compensation programs. The dissent accused the majority of gutting Wal-Mart in the 4th Circuit and unnecessarily dumping an unmanageable nightmare onto the district court.

Garcia v Holder

Garcia sought cancelation of removal at his removal hearing. The immigration judge denied his request based on a finding that he had voluntarily left the country under threat of removal. The panel denied his petition for review. It held that the Board of immigration Appeals had discretion to interpret 8USC 1229b to reset the 10 year continuous presence clock based on voluntary departures as the text of the statute did not address the issue and did not make the 90 and 180 day periods in 1229b(d)(2) the exclusive measures of breaks in continuity. The panel noted that it joined 8 other circuits in so holding. The panel also held that Garcia bore the burden of proving he was subject to a documented formal process when he was detained at eh border, he presented unclear evidence on the issue and the issue must therefore be resolved against him.

Kuusk v Holder

Kuusk moved to untimely reopen her denial of cancelation of removal. The Board of Immigration Appeals applied the general 4th Circuit rule for equitable tolling and denied the motion. The panel affirmed. It joined 7 other circuits in holding the 90 day period to move to reopen is a statute of limitations subject to equitable tolling. It further held that the general 4th Circuit rule requiring either wrongful conduct on the government’s part or extraordinary circumstances outside the movant’s control applied noting that no circuit applies a special lenient rule in immigration cases. It finally held the board properly applied the standard as the immigration officer gave accurate limited advice on applying for a marriage based green card, did not tell her to ignore the removal proceeding and her own attorney warned her twice to file a timely reopening motion. While denying her petition, the panel noted she appeared to have a viable claim and that there were several options available to her which may alleviate the harsh result required by law in this case.

United States v George

George moved to suppress the handgun discovered in his pocket during a frisk. The district court denied his motion and George pled guilty to felon in possession. The panel affirmed. It held the totality of the circumstances-aggressive driving by the driver of the car in a high crime area at 3:30 am, the driver’s inconsistent explanations, the presence of four men in the car, George’s nervousness, failure to put his right hand on the dashboard as instructed and dropping his wallet and cell phone as he exited the car-support a finding of individualized reasonable suspicion justifying the frisk.

United States v Sterling (Risen intervening)

Sterling and Risen petitioned for en banc review of the opinion which affirmed the subpoenas for the identity of certain anonymous sources. No judge requested a poll as to Sterling’s petition and only one judge voted to review Risen’s case. Two judge field statements noting they owned stock in one of the amicus corporate parent companies, but that did not require their recusal given the lack of substantial financial impact on their holdings. Judge Gregory dissented in the risen case arguing that the issue of reporter’s privilege in criminal cases is of extraordinary importance and should be heard en banc and further argued the privilege should be extended to criminal cases in the 4th Circuit.

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