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Tuesday, November 30, 2010

Get Back to Where You Once Belonged: Fourth Circuit Upholds Application of Forum Selection Clause

by Kirsten E. Small

The Fourth Circuit yesterday affirmed a district court order remanding a case to the state courts of Virginia. FindWhere Holdings, Inc. v. Systems Environment Optimization, LLC (No. 09-2155)

FindWhere, a seller of global positioning systems, entered into a distribution contract with Homeland Security Systems. The contract included a forum selection clause, which provided that venue any suit under the contract "shall lie exclusively in, or be transferred to, the courts of the State of Virginia." After FindWhere sued Homeland in Loudoun County, Virginia, Homeland removed the action to the Eastern District of Virginia on the basis of diversity jurisdiction. The district court granted FindWhere's motion to remand, holding that the forum selection clause allowed suits only in state court. Homeland appealed.

The Fourth Circuit first held that it had jurisdiction over the appeal, holding that the general prohibition of appellate review of remand orders does not include remands based upon forum selection clauses. In so holding, the court joined every other circuit that has considered the issue.

The court then affirmed the remand order. Homeland argued that the "or be transferred to" language of the forum selection clause established that venue in federal court was proper, because only a federal court can "transfer" a case to another jurisdiction. In rejecting this argument, the court first applied the "widely accepted rule" that when a forum selection clause uses the phrase "of [a state]," venue is exclusively in state court; only the phrase "in [a state]" indicates an intent to allow suit in state or federal court.

The Fourth Circuit then rejected Homeland's argument that the reference to "transferring" a case was evidence of an intent to permit suits in federal court. Although the language of the opinion is not crystal clear, the court appeared to hold that a proper reading of the word "transfer" includes not just district-to-district transfers under 28 U.S.C. § 1404(a), but also remands from federal to state courts in Virginia.

Monday, November 22, 2010

A Tale of Two Doctrines (Res Judicata and Differing Capacities)

By Kirsten E. Small

On Friday, the Fourth Circuit issued a helpful primer on the differing capacities doctrine and its application in employment litigation. Brooks v. Arthur (No. 09-1551)

Virginia corrections officers Donald Hamlette, James Brooks, and Samuel St. John were fired by Lieutenant Howard Arthur, allegedly because they complained of discrimination by Arthur and Major Randal Mitchell. In administrative proceedings, the Department of Employee Dispute Resolution (EDR) reinstated each officer with back pay, concluding that the officers' misconduct (consisting of various instances of dereliction of duty) did not warrant termination. The EDR also found that none of the officers had established a connection between the protected activity and the termination.

Thereafter, the officers sued Arthur and Mitchel in their individual capacities, alleging civil rights violations (discrimination and witness intimidation) and tortious interference with contract. The district court dismissed, holding that because Arthur and Mitchell were in privity with the Department of Corrections, the EDR proceedings were res judicata as to the civil suit.

The Fourth Circuit reversed. Describing the problem as one of "transitive capacity," the court explained that the EDR proceedings could have preclusive effect only if Arthur and Miller in their individual capacities were in privity with the Department of Corrections, a state entity. Privity could exist only if (1) the Department was in privity with Arthur and Mitchell in their official capacities, and (2) Arthur and Mitchell in their official capacities were in privity with themselves in their individual capacities.

Relying on Andrews v. Daw, 201 F.3d 521 (4th Cir. 2000) ("Daw II"), the court concluded that the analysis failed at the second step: under the doctrine of differing capacities, Arthur and Mitchell could not be in privity with themselves. If sued in their official capacities, Arthur and Mitchell would serve as proxies for the Department of Corrections, the real party in interest. When sued in their individual capacities, however, Arthur and Mitchell would be personally liable for any damages. Additionally, the theories of liability and defenses would differ--for example, the Department of Corrections could claim sovereign (but not qualified) immunity, while Arthur and Mitchel could claim qualified (but not sovereign) immunity.

The court remanded for further proceedings.

Friday, November 19, 2010

An advocacy tip from the Ninth Circuit: Brief your issues!

By Kirsten Small

The Fourth Circuit hasn't published any decisions this week, so instead I'm going to borrow from the Ninth which this week issued a vivid reminder that if you don't brief an issue, you can't win on it--because the court won't consider it.

The case is a familiar one: The Christian Legal Society's suit against Hastings College of Law. CLS alleged that Hastings's "all comers" policy violated CLS's First Amendment rights, a position it advocated all the way to the Supreme Court. Then, in a single sentence in its reply brief, CSL alleged that "the peculiarity, incoherence, and suspect history of the all-comers policty all point to pretext." The Supreme Court affirmed the Ninth Circuit's First Amendment ruling and remanded the pretext claim, stating that the Ninth Circuit could consider that claim if it was preserved. CLS then moved for a remand from the Ninth Circuit back to the district court for consideration of the pretext claim.

On Wednesday, the Ninth Circuit denied the motion. Noting that appellate courts "review only issues that are argued specifically and distinctly in a party's opening brief," the court admonished that all claims "must be articulated" in the statement of issues, the summary of argument, and the argument itself. CLS did not raise the pretext argument in any portion of its Ninth Circuit briefs, nor did it allude to the claim during oral argument.

The court rejected as insufficient references to "pretext" and "selective enforcement" appeared in CLS's opening brief. "[A] bare assertion in the fact section of the opening brief will not preserve a legal argument that is never made."

"Judges are not like pigs, hunting for truffles buried in briefs," the court concluded. Claims that are not clearly articulated will not be considered by the court.

Thursday, November 11, 2010

Two plaintiffs and a petitioner walk into a courthouse...

by Kirsten E. Small

The Fourth Circuit issued three published opinions yesterday. Let's get to 'em.

The Plaintiff
For my money, the most noteworthy of the bunch is Coleman v. Maryland Court of Appeals. Former procurement officer Daniel Coleman alleged that the Court of Appeals violated the Family and Medical Leave Act by terminating him after he requested sick leave for "a documented medical condition." The Fourth Circuit held that the Eleventh Amendment barred the claim.

The court began its analysis by discussing Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721 (2003), in which the Supreme Court held that Congress validly abrogated states' sovereign immunity when it enacted the family-care provision of the FMLA (which entitles employees to leave to care for a spouse, child, or parent with a serious health condition). The Hibbs Court held that the family-care provision was a proper exercise of Congress' power to enforce the 14th Amendment because that provision was a necessary remedy for gender discrimination.

The Fourth Circuit recognized that Hibbs requires separate constitutional evaluation of each of the four FMLA entitlements (childbirth, adoption, family care, and self-care). Joining the 5th, 6th, 7th, and 10th Circuits, the Fourth Circuit held that there is no discrimination-based justification for the self-care provision, and hence Congress did not validly abrogate sovereign immunity in enacting the self-care provision.

The Other Plaintiff
JTH Tax, Inc. v. Frashier concerns the amount-in-controversy requirement. JTH Tax, owner of Liberty Tax franchises (the ones who put people on the side of the road in Statue of Liberty costumes), sued a former franchisee in federal court alleging $80,000 in damages. At summary judgment, JTH claimed damages of about $60,000, whereupon the district court dismissed for lack of subject matter jurisdiction. The Fourth Circuit reversed, noting first that there was no allegation of bad faith in JTH's original allegation. Second, the Court held that the actual damages claims, when combined with the value to JTH of injunctive relief, satisfied the jurisdicational threshold. No new law here, but a good walk-through of the relevant principles.

The Petitioner
Finally, in Barnes v. Holder, the Court held that the BIA has properly interpreted immigration regulations to require "an affirmative communication attesting to the alien's prima facie eligibility" before removal proceedings may be terminated.

Tuesday, November 9, 2010

"It's not fair" is not one of the canons of statutory construction.

by Kirsten E. Small

The Fourth Circuit issued one published opinion yesterday: West Va. Highlands Conservancy v. Huffman, No. 09-1474.

Coal miners in West Virginia (well, everywhere really) are required by the Clean Water Act to control acid mine drainage. When they fail to do so, the West Virginia Department of Environmental Protection forfeits the mine owner's performance bond and starts remediating the drainage itself.

Or at least, that's the theory. In actuality, WVDEP was allowing acid mine drainage to continue at 18 bond forfeiture sites. The West Virginia Highlands Conservancy sued, claiming that WVDEP was required to obtain a permit for such discharges. The district court agreed based on the very broad language of the CWA, which covers "any addition of any pollutant ... from any point source" by "any person" (defined to include states and municipalities).

The district court held that WVDEP was required to obtain a permit under the plain statutory language. On appeal, WVDEP resorted to playground rhetoric, arguing that the CWA shouldn't apply to it because: (1) it's a state agency ("the rules don't apply to me"); (2) it didn't cause the discharges in the first place ("he did it"); and (3) application of the CWA to it would produce "absurd" results ("it's not fair").

The Fourth Circuit rejected these "policy" arguments and affirmed.

Friday, November 5, 2010

4th Circuit creates "lost child" exception to warrant requirement

by Kirsten E. Small

May 1, 2009 was a bad day for Melvin Taylor, but it could have been a worse day for the 4-year-old daughter of Taylor's girlfriend. A cab driver found the child wandering on a busy street in Richmond, Virginia, and contacted the police. Officer Anthony Ratliff responded, and the girl took him to a nearby--and apparently empty--row house. Ratliff followed her inside, shouting "hello" periodically as he looked for an adult who might be responsible for the child.

The adult Ratliff found was Taylor, who was sleeping in an upstairs bedroom. The bag of bullets on the bedside table gave Ratliff some pause as to the "responsible" part, so he asked Taylor his name (he gave a false one) and if he knew the address of the house he was in (he claimed not to). Ratliff's concerns not having been allayed, he performed a protective sweep and found a handgun under Taylor's mattress.

About that time, Taylor's cell phone rang with a call from "Baby's Mama," who helpfully provided Ratliff with the name "Orlando Taylor," which Ratliff then traced back to Melvin Taylor, who turned out to have a prior felony which made his possession of the gun illegal.

Taylor appealed his subsequent conviction, arguing that Ratliff was required to have a search warrant, or at least probable cause, before entering the house. The Fourth Circuit rejected this argument, holding that a warrant was unnecessary because there was no criminal investigation afoot--just an attempt to reunite a lost child with her parents. Aside from the warrant requirement, the court concluded that the search was reasonable, in its occurrence and its scope, in light of the exigent circumstances.

The case is United States v. Taylor.