November 20, 2013 4th Circuit published opinions

Turner v United States

Turner and her husband went overboard during a storm. The Coast Guard, based on the information Turner’s father in law provided, did not begin active search and rescue until Turner’s boat was found the day after Turner went overboard. The search did not find either Turner who came ashore on her own or her husband who drowned. Turner sued for her injuries and her husband’s death. The district court granted summary judgment to the United States. The panel affirmed. It held that because the Coast Guard can but is not required to launch rescue efforts, it can only be liable if its actions worsen the Turner’s condition. Here, the Coast Guard did not begin search and rescue until after the boat was discovered and thus could not have worsened the conditions the turners found themselves in. Also, Turner never told the Coast guard about her situation and the state authorizes testified no rescue effort would have been undertaken by their agency due to the weather. The panel held that the Coast Guard’s practice of recording over audio recordings of phone calls was not spoliation as Turner did not give a litigation or preservation notice. The panel affirmed as to a Freedom of Information Act issue as Turner provided no evidence that the Coast Guard withheld any relevant documents. The panel finally held that while the summary judgment motion was late, she had the opportunity to oppose it and thus her due process rights were not violated.

United States v 515 Granby, LLC

The government condemned property held by Granby. Granby sought significantly higher compensation than offered by the government. After jury trial, Granby prevailed as the verdict was closer to its last offer. It sought attorney fees under the Equal Access to Justice Act. The district court denied the motion. The panel reversed and remanded. It held that under the Act both prelitigation and litigation positions must be considered. An unreasonable prelitigation position will generally lead to a fee award. If the litigation position is reasonable, the government must also prove that its prelitigation position did not force the case into litigation. The panel instructed the district court to view the totality of the prelitigation circumstances to see if the offers to Granby had a reasonable basis in fact and law and to determine the effect of the offers on Granby’s decision to litigate. The panel held that Granby’s need for the fees or financial situation generally was not relevant.

Durden v United States

Durden was raped by a soldier in a home on a military base and sued the government for negligently failing to prevent the rape. The district court dismissed for lack of subject matter jurisdiction. The panel affirmed. It first held that the case was properly viewed as one granting summary judgment. It then held that the landlord liability claim failed as threats to kill other soldiers and one burglary were insufficient under state law to make Durden’s rape foreseeable. The panel held the “special relationship” theory was properly rejected as the Army did not have any legal authority beside the rapist’s soldier status to control him. Thus under the Tort Claims Act, the government is not liable under this theory. The panel held that the government did not undertake a voluntary duty to Durden by controlling the soldier preparatory to discharging him as there was no evidence that the soldier was a threat to Durden and there was no state law suggesting a private person would be liable under the circumstances. The panel affirmed the denial of discovery as none of the information sought would lead to a different outcome. The panel held that the intentional tort exception to the Tort Claims Act did not bar this claim as the fact that the government learned of the soldier’s violent tendencies came about in its role as employer is not a bar under Untied States Supreme Court precedent.

Phillip Morris USA, Incorporated v Vilsack

Morris challenged a rule which retained 2003 tax rates for tobacco products to implement the Fair and Equitable Tobacco reform Act 7 USC 518 et seq. The district court rejected the challenge and the panel affirmed. It noted that the statute is silent as to the use of tax rates to calculate the total funds to be raised under the Act and how that is to be distributed among six classes of tobacco manufacturers. Thus, there is no independent textual support for Morris’ position that current rates must apply. Applying Chevron deference, the panel held that the agency interpretation of the Act was reasonable, that later statutes on tobacco taxes did not entrench Morris’ reading of the Act because there was no record of congressional action which is fundamentally incompatible with the agency position here and the technical amendment announcing the use of the 2005 rates was an exercise in judgment and expertise as evidenced by the detailed explanation of why it retained the 2003 rates instead of using new rates which would lower Morris’ assessment.

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