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Opinions – 4/23/12: 4th U.S. Circuit Court of Appeals

Civil Procedure

Driver’s Privacy Protection Act

BOTTOM LINE: Buyers’ claims under Driver’s Privacy Protection Act of 1994 failed as matter of law, because, where solicitation by lawyers is an accepted and expected element of conduct satisfying DPPA’s litigation exception, such solicitation is not actionable by persons to whom the personal information pertains.

CASE: Maracich v. Spears, No. 10-2021 (decided Apr. 4, 2012) (Judges Duncan, DAVIS & Wynn). RecordFax No. 12-0404-60, 34 pages.

COUNSEL: Philip Elbert, Neal & Harwell, Nashville, TN, for Appellants. Morris Cooke, Barnwell, Whaley, Patterson & Helms, LLC, Charleston, SC, for Appellees.

FACTS: This appeal arose from the dismissal of all claims alleged in a putative class action complaint filed pursuant to the Driver’s Privacy Protection Act of 1994 (“DPPA”), 18 U.S.C. §§2721-2725, which regulates the disclosure of personal information contained in the records of state motor vehicle departments.

Plaintiffs Michael Spears, Gedney Howe, Richard Harpootlian and Camden Lewis were South Carolina lawyers who in 2006-2007 instituted several “group action” lawsuits in South Carolina state court against numerous car dealerships pursuant to the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act, S.C. Code Ann. §56-15-10 et seq. The lawyers alleged that certain dealerships had collected unlawful fees from car buyers.

Through requests submitted to the South Carolina Department of Motor Vehicles (“DMV”) under the state Freedom of Information Act, S.C. Code Ann. §§30-4-10 to -165 (“FOIA”), the lawyers obtained personal information protected by the DPPA, including the names, addresses, telephone numbers, and car purchase information of thousands of car buyers, from which they identified potential named plaintiffs in the Dealers Act group action. This group action was referred to by the district court and the parties as the Herron litigation.

Defendants Edward Maracich, Martha Weeks and John Tanner were car buyers who received mailings from the plaintiff attorneys regarding the Dealers Act litigation. In 2009, individually and on behalf of a putative class of all others similarly situated, the buyers sued the lawyers in district court, alleging that the lawyers violated the DPPA when they obtained and used the buyers’’ personal information without their consent in connection with the Dealers Act litigation.

Both plaintiffs and defendants filed motions for summary judgment. The district court granted summary judgment in favor of the lawyers, concluding that the lawyers did not engage in prohibited solicitation but that, even if they did, their actions nonetheless satisfied the so-called “litigation” and “state action” exceptions to the statutory prohibitions under the DPPA, and therefore their actions comported with the requirements of the Act.

The buyers appealed to the 4th Circuit, which affirmed.

LAW: Under the DPPA, a state DMV is permitted to disclose drivers’ and/or car owners’ personal information for use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court. 18 U.S.C. §2721(b)(4).

In this case, the district court ruled that the litigation exception applied to the lawyers’ conduct because, as a matter of law, the undisputed facts demonstrated that they obtained and used the buyers’ personal information with the singular purpose of employing it in their investigation in anticipation of, and in connection with the prosecution of, the Herron litigation.

Specifically, the district court noted that the initial complaint and the amended complaint in the Herron litigation were evidence that the information obtained from the first two FOIA requests was useful in determining whether to file a group action, and that the buyers failed to come forward with any evidence to dispute the lawyers’ evidence that the personal information from the first two FOIA requests was obtained in order to assist in identifying the highest volume dealers.

The buyers argued, however, that solicitation cannot occur “in anticipation of” or “in connection with” litigation, and that if the lawyers solicited they could not, by definition, have been acting in anticipation of, or in connection with, litigation. This argument was without merit, as such a position would improperly constrict the common meaning of “in anticipation of” and “in connection with.” The solicitation of clients by trial lawyers is surely connected to litigation in that representation for a legal claim is the goal. Here, the lawyers were looking to build and bolster a case against the dealerships if their initial information from consumers proved the existence of plausibly systemic violations of the Dealers Act. As such, the district court did not err in granting of summary judgment in favor of the lawyers as to the applicability of the litigation exception.

Accordingly, the district court’s judgment was affirmed.

Criminal Law


BOTTOM LINE: With regard to congressman’s bribery convictions, the jury was properly instructed as to the definition of “official acts” and the “quid pro quo” element of the federal statute.

CASE: United States v. Jefferson, No. 09-5130 (decided Mar. 26, 2012) (Judges Niemeyer, KING & Duncan). RecordFax No. 12-0326-60, 65 pages.

COUNSEL: Lawrence Robbins, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, LLP, Washington, for Appellant. Mark Lytle, Office of the United States Attorney, Alexandria, VA, for Appellee.

FACTS: In August 2009, former Louisiana congressman William Jefferson was convicted in the Eastern District of Virginia of eleven offenses, including conspiracy, wire fraud, bribery, money laundering, and racketeering, arising from his involvement in multiple bribery and fraud schemes.

Jefferson appealed his convictions to the 4th Circuit on several grounds, including that an erroneous instruction was given to the jury with respect to the bribery statute’s definition of an “official act” and with regard to “quid pro quo” element of bribery statute. The 4th Circuit held that the instructions were proper, and affirmed all of Jefferson’s convictions, apart from his conviction for honest services wire fraud offense, in violation of 18 U.S.C. §§1343 and 1346, which was vacated for lack of venue.

LAW: Jefferson argued that the district court erroneously instructed the jury on what constitutes an “official act” under the federal bribery statute.

The “official act” issue required the assessment of the viability and applicability of the Supreme Court’s century-old decision in United States v. Birdsall, 233 U.S. 223 (1914). There, the Court recognized, under a predecessor bribery statute, that in order for a public officer’s action to be deemed “official,” it was not necessary that the act be prescribed by statute; it was sufficient that the act was governed by a lawful requirement of the department under whose authority the officer was acting.

The federal bribery statute was revised in 1962 to its current provision in 18 U.S.C. §201(b). The only notable distinction between the bribery statute as it existed in 1914 and the present version is that the predecessor version, instead of using the term “official act,” employed the phrase “decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit.” See Birdsall, 233 U.S. at 230.

Although §201(b)(1)(A) replaced that phrase with the words “official act,” the bribery statute now uses the substance of the predecessor’s phrase to define an “official act” under §201; there is no distinction in substance between an official act as defined by Birdsall, and an official act under Jefferson’s indictment. See United States v. Carson, 464 F.2d 424, 433 (2d Cir. 1972).

As such, the government relied on the Birdsall decision to support its position on the “official act” issue raised in the present case, and the district court agreed with the government’s position. Accordingly, the court instructed the jury, “An act may be official even if it was not taken pursuant to responsibilities explicitly assigned by law. Rather, official acts include those activities that have been clearly established by settled practice as part [of] a public official’s position.”

Jefferson contended that the definition of an official act used by the trial court, particularly its inclusion of the “settled practices” of a public official, was overly general, rendering the bribery statute unconstitutionally vague, thereby rendering his convictions fatally flawed. Specifically, he contended that the Supreme Court’s decision in United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), undercut the district court’s reliance on the Birdsall decision and foreclosed the use of a “settled practice” instruction on official acts under the bribery statute.

However, in Sun-Diamond, rather than examining the bribery statute, the Court examined the requirements for a violation of the illegal gratuity statute, found in 18 U.S.C. §201(c) – the bribery statute’s lesser included offense and close cousin. Indeed, the Sun-Diamond decision began its discussion by distinguishing the illegal gratuity statute from the bribery statute. United States v. Sun-Diamond Growers of California, 526 U.S. at 408.

The boundaries fixed by the Supreme Court in Birdsall fall well within the bribery statute, and have never been altered. See United States v. Moore, 525 F.3d 1033, 1041 (11th Cir. 2008). The Sun-Diamond decision did not abrograte the Birdsall standard.

The trial court’s instruction as to an “official act” was entirely consistent with the Birdsall principle, which has never been overruled. The instruction did not in any way supplant the statutory definition of what constitutes an official act; it simply explained to the jury that an official act need not be prescribed by statute, but may include acts that a congressman customarily performs, even if the act falls outside the formal legislative process. Thus, the “settled practice” instruction did not impermissibly expand the term “official act.” See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).

Jefferson also argued that the trial court erred in its jury instruction regarding the “quid pro quo” element of the bribery offense. The quid pro quo requirement is satisfied if the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor. See United States v. Quinn, 359 F.3d 666, 673 (4th Cir. 2004).

Here, the court advised the jury that “the quid pro quo requirement is satisfied if you find that the government has established beyond a reasonable doubt that the defendant agreed to accept things of value in exchange for performing official acts on an as-needed basis, so that [when]ever the opportunity presented itself, he would take specific action on the payor’s behalf.”

Jefferson intended to promote certain corporations in his official capacity as a congressman, in exchange for money and things of value paid through his family’s businesses. The government was not required to prove that Jefferson intended for his payments to be tied to specific official acts (or omissions); it was sufficient to show that he intended for each payment to induce the official to adopt a specific course of action. As such, the court’s jury instruction on the “quid pro quo” element was proper.

Accordingly, Jefferson’s bribery convictions were affirmed.

Criminal Procedure

Consent to search

BOTTOM LINE: Police search of home shared by defendant and his aunt was not invalid for lack of consent, because, even though defendant had previously refused to consent to search, aunt consented and defendant was not physically present to object to her consent.

CASE: United States v. Shrader, No. 10-5169 (decided Apr. 4, 2012) (Judges WILKINSON, Mott & Diaz). RecordFax No. 12-0404-61, 24 pages.

COUNSEL: Jonathan Byrne, Office of the Federal Public Defender, Charleston, WV, for Appellant. Thomas Ryan, Office of the United States Attorney, Charleston, WV, for Appellee.

FACTS: For more than three decades, Thomas Shrader harassed and intimidated D.S. and her husband. Shrader was eventually charged with two counts of stalking via a facility of interstate commerce in violation of 18 U.S.C. §2261A(2) (one count alleging that he targeted D.S. and the other that he targeted her husband) and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). The counts were severed and two separate trials were held, first on the firearms charge and subsequently on the two stalking counts.

Prior to the firearms trial, Shrader moved to suppress the firearms found in his house. The district court denied the motion. At the close of the firearms trial, Shrader requested that the court instruct the jury that the mere proximity of the firearms to Shrader “goes only to the firearms’ accessibility and not to the dominion or control which must be proven in order to establish possession of the firearms.” The district court instead instructed the jury that “[e]vidence of the mere proximity of the firearms to Shrader may establish only the firearms’ accessibility. However, the proximity of the firearms to Shrader may also help to establish dominion and control depending on the inferences you draw from the evidence presented in the case.” Shrader was convicted of the firearms offense.

Prior to his stalking trial, Shrader moved to dismiss the indictment on the grounds that 18 U.S.C. §2261A(2) was unconstitutionally vague. The district court denied the motion. Shrader was convicted of both counts of stalking.

Shrader appealed to the 4th Circuit, which affirmed the convictions.

LAW: Shrader first argued that the district court erred in denying his motion to suppress the firearms recovered from the house he shared with his aunt. Specifically, he contended that her consent to a search of their shared home was invalid because he had previously refused to consent to the search. While Shrader did not dispute that his aunt had authority to consent to the search, he argued her consent was invalid under the Supreme Court’s decision in Georgia v. Randolph, 547 U.S. 103 (2006), which held that “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Georgia v. Randolph, 547 U.S. 103, 122-23 (2006).

Shrader, however, failed to satisfy a key requirement of Randolph: he was not “physically present” to object to his aunt’s consent. Because Shrader was absent from the premises, and there was no evidence that he was arrested for the purpose of nullifying his refusal to consent to the search, his aunt’s consent provided adequate permission for the police to search the house, notwithstanding his earlier objection. As such, the district court properly denied his motion to suppress.

Shrader also appealed the district court’s refusal to give his proposed instruction to the jury with respect to his constructive possession of a firearm. However, the 4th Circuit has repeatedly affirmed the right of juries to consider proximity as a part of their analysis of a defendant’s constructive possession. See, e.g., United States v. Kimbrough, 477 F.3d 144, 147 n.5 (4th Cir. 2007). Here, the district court’s instruction accurately stated the law, and more so than Shrader’s proposed instruction. Thus, the district court accurately informed the jury that proximity alone goes only to accessibility, but when viewed in light of the remaining evidence in the case, can form part of the tableau that justifies a conviction based on constructive possession.

As to the stalking convictions, Shrader argued that 18 U.S.C. §2261A(2) was unconstitutionally vague. One of the elements required in order for a defendant to be convicted under the statute is that the defendant must possess either the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State, or the intent to place that person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family of that person, or a spouse or intimate partner of that person. 18 U.S.C. §§2261A(2)(A), 2261A(2)(B).

The test for vagueness is necessarily a practical rather than hypertechnical one. United States v. Biocic, 928 F.2d 112, 114 (4th Cir. 1991). “Harass” and “intimidate” are not uncommon terms and are clearly understood by laypersons. Overall, a common sense reading of the statute adequately defines the prohibited conduct. As such, Shrader’s contention that his stalking convictions must be overturned on vagueness grounds was without merit.

Accordingly, Shrader’s convictions were affirmed.

Health Care

Stark Law litigation

BOTTOM LINE: In a case alleging violations of the Stark Law and seeking compensation under the False Claims Act and equitable theories, the lower court violated the defendant hospital’s right to a jury trial by ordering it to pay $44 million on the equitable claims, based on the jury’s answer to a special interrogatory, after the setting aside the verdict in its entirety and granting a new trial on the False Claims Act counts.

CASE: U.S. Ex Rel. Drakeford v. Tuomey Healthcare System, No. 10-2316 (decided Mar. 15, 2012) (Judges DUNCAN, Wynn & Diaz). RecordFax No. 12-0330-60, 31 pages.

COUNSEL: William Wilkins, Nexsen Pruet LLC, Greenville, SC; Arthur Lewis, Lewis, Babcock & Griffin, LLP, Columbia, SC, for Appellant. Tracy Hilmer, United States Department of Justice, Washington, for Appellee.

FACTS: Tuomey Healthcare System, Inc., a nonprofit corporation incorporated in South Carolina, owned and operated Tuomey Hospital in Sumter County, S.C. Most of the physicians providing medical services at Tuomey Hospital were not employed by Tuomey, but rather practiced medicine through specialty physician groups organized as professional corporations.

In 2003, the members of Sumter County’s gastroenterology specialty group informed Tuomey that they were considering whether to perform outpatient surgical procedures in-office, rather than at Tuomey Hospital. The loss of these outpatient surgical procedures posed a serious financial concern for Tuomey.

To dissuade the specialist physicians from performing their outpatient procedures elsewhere, Tuomey sought to enter into agreements with them to perform outpatient procedures solely at Tuomey Hospital. During 2004 and 2005, Tuomey negotiated with all of the specialist physicians on its medical staff. One of those physicians was Michael Drakeford, with whom negotiations unsuccessfully ended in 2005. Between January 1, 2005, and November 15, 2006, Tuomey entered into compensation contracts with 19 other specialist physicians.

In October of 2005, Drakeford sued Tuomey in district court under the qui tam provisions of the FCA, 31 U.S.C. §3730(b). The United States intervened in Drakeford’s qui tam action, and subsequently filed its own complaint, alleging that Tuomey entered into compensation arrangements with certain physicians that violated §1877 of the Social Security Act, commonly known as the Stark Law, 42 U.S.C. §1395nn.

Because the Stark Law does not create its own right of action, the United States sought relief under the False Claims Act (“FCA”), 31 U.S.C. §§3729-33. The United States further asserted equitable claims premised on the alleged Stark Law violation, including payment under mistake of fact and unjust enrichment.

The district court eventually granted final judgment to the United States upon equitable claims of payment by mistake of fact and unjust enrichment against Tuomey arising out of the alleged violations of the Social Security Act, and awarding damages in the amount of $44,888,651, plus interest.

A jury returned a verdict finding that Tuomey did not violate the FCA, but responded affirmatively to a special interrogatory regarding whether it had violated the Stark Law. The district court set aside the jury verdict and ordered a new trial on the entire FCA claim. It further ordered that, based on the jury verdict, the United States was entitled to judgment on its equitable claims.

Tuomey appealed to the 4th Circuit, which vacated the district court’s judgment and remanded the case.

LAW: Tuomey contended that the district court violated its Seventh Amendment rights by basing its judgment with respect to the equitable claims on the jury’s interrogatory answer regarding the Stark Law, even though the district court had already set aside the jury’s verdict in its entirety. The Seventh Amendment provides that in suits at common law, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. The Seventh Amendment demands that facts common to legal and equitable claims be adjudicated by a jury. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11 (1959).

Here, the financial relationship between Tuomey and the physicians that violated the Stark Law was a factual predicate to liability on the equitable claims. The FCA claim was likewise premised on the existence of such an illegal relationship. As such, the factual issue of whether a financial relationship prohibited by the Stark Law existed was common to the equitable claims and the FCA claim, and it therefore followed that the district court was required to submit that issue to the jury before it could resolve the United States’ equitable claims.

The district court failed to do precisely that. Although it tried the FCA claim to a jury, and the jury returned a verdict on that claim that indicated that Tuomey had violated the Stark Law but had not violated the FCA, the district court set that verdict aside when it granted the government’s motion for a new trial under Rule 59, specifically ordering that the new trial would encompass the whole FCA claim, including whether Tuomey had violated the Stark Law.

As a result, the jury’s interrogatory answer regarding the Stark Law became a legal nullity. In other words, following the order granting the Rule 59 motion, a jury had yet to determine the common issue necessary to resolution of both the FCA claim and the equitable claims, i.e., whether Tuomey violated the Stark Law. In granting judgment to the United States on the equitable claims, the district court impermissibly resolved that common issue before a jury had adjudicated it. It thereby deprived Tuomey of its right to a jury trial, in violation of the Seventh Amendment.

Error is not harmless where both sides introduce sufficient conflicting evidence on the relevant questions such that the district court could not have granted a motion for judgment as a matter of law. Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 833 (4th Cir. 1994). Here, both sides introduced conflicting evidence regarding whether Tuomey’s contracts with the physicians violated the Stark Law. As such, the record was insufficient to assess whether the district court could have granted judgment as a matter of law, and remand of the case was necessary in order for the jury to determine the pertinent factual issues, including whether the contracts, on their face, violated the fair market value standard by taking into account anticipated referrals in computing the physicians’ compensation, and whether the contracts created a financial relationship as defined by the Stark Law.

Accordingly, the district court’s judgment was vacated and the case remanded.

Immigration Law

Waiver of inadmissibility

BOTTOM LINE: Section 212(h) of Immigration and Nationality Act, which bars aliens who have committed aggravated felonies and who have previously been admitted to the United States with lawful permanent resident status from seeking a waiver of removal, did not bar alien who adjusted post-entry to lawful permanent resident status from seeking a waiver of inadmissibility.

CASE: Bracamontes v. Holder, No. 10-2033 (decided Mar. 29, 2012) (Judges Niemeyer, Agee & WYNN). RecordFax No. 12-0329-60, 23 pages.

COUNSEL: Satnam Singh, Norfolk, VA, for Petitioner. Sheri Glaser, United States Department of Justice, Washington, for Respondent.

FACTS: Adolfo Bracamontes was transported illegally by his mother from Mexico to the United States in 1976, when he was two years old. In 1987, Bracamontes and his mother were granted temporary resident status, which was adjusted to lawful permanent resident status in 1990. Since 1976, Bracamontes lived continuously in the United States, except for a week-long visit to Mexico in 1988.

In 1999, Bracamontes pled guilty in Virginia state court to the aggravated felony of malicious wounding. He served his sentence and probation, complied with all court orders, and was released from custody in May of 2001. Shortly thereafter, Bracamontes married a United States citizen and had three children.

In January of 2009, his wife submitted an I-130 Petition for Alien Relative for his benefit, along with his I-485 Application to Register Permanent Residence or Adjust Status. Bracamontes sought a waiver of removal in spite of his aggravated felony conviction, based on his status as the spouse of a citizen, and asserted that his removal would result in extreme hardship for his family.

His application for adjustment of status was denied on the grounds that, because he was already a lawful permanent resident, he was not eligible for adjustment. Removal proceedings were immediately initiated against Bracamontes.

On October 27, 2009, an Immigration Judge (“IJ”) granted the Department of Homeland Security’s Motion to Pretermit his applications for adjustment of status and a waiver, concluding that he was ineligible for a waiver under 8 U.S.C. §1182(h), or §212(h) of the Immigration and Nationality Act (“INA”), because of his aggravated felony conviction. Bracamontes appealed to the Board of Immigration Appeals (“BIA”). While the appeal was pending, Bracamontes filed a motion to remand, seeking consideration and adjudication of an application for protection under the United Nations Convention Against Torture on the grounds that he feared retaliation from Mexican gangs for refusing to join them and opposing their activities in California.

The BIA dismissed his appeal and denied his motion to remand. Bracamontes filed a petition for review of the BIA decision with the 4th Circuit. He subsequently filed a motion with the BIA to reconsider his eligibility for a §212(h) waiver and his motion to remand. Bracamontes also sought a stay of removal; that motion was also denied. Bracamontes filed another petition for review of that BIA decision.

The 4th Circuit consolidated the petitions, and subsequently vacated the order of removal and remanded the case to the BIA for further proceedings.

LAW: Section 212(h) of the INA vests the Attorney General with the discretion to waive the inadmissibility of an alien based on the alien’s conviction for an aggravated felony if the denial of admission would result in extreme hardship to the alien’s United States citizen spouse or other family members. 8 U.S.C. §1182(h). By its plain language, §212(h) prohibits an alien from receiving a waiver of inadmissibility if that alien lawfully entered the United States with lawful permanent resident status and committed an aggravated felony subsequent to such admission as a lawful permanent resident.

“Admission” and “admitted” are defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. §1101(a)(13)(A). Neither term includes an adjustment of status; instead, both contemplate a physical crossing of the border following the sanction and approval of U.S. authorities. The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant. Id. §1101(a)(20). The statutory language is clear and unambiguous. An alien with lawful permanent resident status who has entered the United States legally, following inspection by an immigration officer, and is subsequently convicted of an aggravated felony, is statutorily ineligible for a §212(h) waiver. With respect to other aliens, however, the Attorney General retains the discretion to grant a waiver of inadmissibility to an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if the alien’s denial of admission would result in extreme hardship to the U.S. citizen. 8 U.S.C. §1182(h)(1)(B).

Here, the IJ found that Bracamontes was admitted to the United States as a returning temporary resident following his visit to Mexico in 1988, and was then subsequently “admitted” as a lawful permanent resident by virtue of the adjustment of his status in 1990. However, at the last time Bracamontes entered the United States, in 1988, he had only temporary resident status; he did not receive lawful permanent resident status until his adjustment in 1990 and had not “lawfully entered into the United States after inspection and authorization by an immigration officer” since that date. As such, Bracamontes never had an “admission” within the plain meaning of §212(h), and therefore remained eligible to seek a waiver of inadmissibility. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984). Therefore, Bracamontes was eligible for a waiver under 8 U.S.C. §1182(h) or §212(h).

Accordingly, the 4th Circuit granted the petition for review, vacated the BIA’s order of removal, and remanded the case.


Denial of application for new wireless tower

BOTTOM LINE: Under Telecommunications Act of 1996, city’s denial of telecommunications company’s zoning application to construct new wireless communication tower near elementary school was properly reversed because denial, which revealed no widespread local opposition to the tower, for example, was not supported by substantial evidence.

CASE: T-Mobile Northeast LLC v. City Council of the City of Newport News, No. 11-1293 (decided Mar. 26, 2012) (Judges King, DIAZ & Gergel (sitting by designation)). RecordFax No. 12-0326-61, 17 pages.

COUNSEL: Darlene Bradberry, Office of the City Attorney, Newport News, VA, for Appellants. Thomas Thompson, Davis, Wright & Tremaine, LLP, Washington, for Appellee.

FACTS: T-Mobile identified Nelson Elementary School in Newport News, Virginia, as a desirable location for a new wireless communication tower. T-Mobile subsequently entered into an agreement with the Newport News School Board to lease a parcel of land at the school for construction and operation of the tower. Under the local zoning ordinance, construction of the tower at the school required the issuance of a conditional use permit, and in April 2008 of T-Mobile submitted an application for the permit to the Newport News Planning Department.

The Planning Department and the School Board conducted a joint study into the appropriateness of building towers at elementary schools. In an August 2009 report, the Planning Department recommended Nelson Elementary as an acceptable site for a tower. Subsequently, the City Council held a work session to discuss the report, during which several council members expressed concerns about the location proposed for the tower. Ultimately, the City agreed to consider Nelson Elementary as a potential site, but decided to study alternative locations as well.

T-Mobile then submitted a slightly-modified permit application. Following a public hearing, the Planning Commission unanimously recommended approval of T-Mobile’s application. The City held a separate public hearing on T-Mobile’s application, where nine citizens spoke, six in favor of the application and three in opposition. The City subsequently voted 4-3 to deny T-Mobile’s application.

T-Mobile sued the City, alleging violations of section 704 of the Telecommunications Act of 1996. The magistrate judge issued his Report and Recommendation, finding that the City’s denial was not based on substantial evidence. The magistrate judge recommended granting summary judgment to T-Mobile on this claim, issuing an injunction ordering the City to approve T-Mobile’s application, and denying the City’s motion for summary judgment. Despite both parties’ objections, the district court adopted in full the magistrate judge’s Report and Recommendation.

The City appealed to the 4th Circuit, which affirmed.

LAW: The Telecommunications Act of 1996 required that the City’s denial of T-Mobile’s application be supported by “substantial evidence” contained in a written record.” 47 U.S.C. §332(c)(7)(B)(iii).

“Substantial evidence” is more than a mere scintilla, but less than a preponderance. It has been described as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” See AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423, 430 (4th Cir. 1998).

In this case, the district court did not find that the City’s denial was based on factors extrinsic to the ordinance; rather, effectively assuming the validity of these factors, the court concluded that the meager opposition did not amount to substantial evidence. The district court noted that T-Mobile submitted its application in response to customer complaints of a gap in coverage, and the court outlined the specifics of the tower. In sum, the district court thoroughly reviewed the evidence supporting the permit and did not impermissibly shift the burden to the City and its citizens.

Determining whether substantial evidence supports the denial of an application submitted pursuant to the Act is a fact-intensive inquiry. Here, the record showed no “repeated and widespread opposition” to the tower. Only three residents spoke at the hearing in opposition to the application, and another sent an email voicing his opposition. The City did not contend that the small turnout was attributable to lack of information in the community, and the City provided ample public notice of T-Mobile’s application, as did the School Board and the Planning Commission.

The district court properly considered the extent of the opposition in assessing whether substantial evidence supported a denial. See Petersburg Cellular Partnership v. Board of Supervisors of Nottoway County, 205 F.3d 688, 696 (4th Cir. 2000). With regard to the substance of the opposition, the district court also appropriately found that the expressed concerns were vague and uncorroborated. As such, the record did not support the City’s denial of T-Mobile’s application.

Accordingly, the judgment of the district court was affirmed.



BOTTOM LINE: District court properly dismissed claims against defendants for unfair and deceptive trade practices and defamation, because plaintiff failed to assert any argument that unfair and deceptive trade practices count was not covered by liability waivers signed by plaintiff, and complaint failed to allege facts sufficient to show that allegedly defamatory statements made by defendants about plaintiff, a public figure, were made with actual malice.

CASE: Mayfield v. National Association for Stock Car Auto Racing, Inc., No. 10-2437 (decided Mar. 26, 2012) (Judges GREGORY, Keenan & O’Grady). RecordFax No. 12-0326-62, 16 pages.

COUNSEL: Tillman Finley, Marino Law PLLC, Washington, for Appellants. David Boies, Boies, Schiller & Flexner, LLP, Armonk, NY, for Appellees.

FACTS: Jeremy Mayfield was a professional race car driver and the principal owner of Mayfield Motorsports, Inc., which operated a race team based in North Carolina. Mayfield raced in events staged by NASCAR. Brian France was the principal owner and chief executive officer of NASCAR. Prior to the 2009 racing season, Mayfield signed a number of agreements with NASCAR, whereby he agreed to abide by the NASCAR substance abuse policy and to submit to random drug testing. Several of the documents Mayfield signed purported to release NASCAR from any and all liability arising out of the NASCAR substance abuse policy.

On May 1, 2009, Mayfield was selected for random drug testing, and he was subsequently informed that his sample was positive for methamphetamine. In response, Mayfield claimed that he had ingested Claritin-D for allergies and Adderall XR for a claimed recent diagnosis of attention deficit hyperactivity disorder. Following another positive test, NASCAR suspended Mayfield indefinitely until he completed its Road to Recovery Program.

On May 15, 2009, Brian France held a press conference where he indicated that Mayfield had been suspended because he took a “performance-enhancing” or “recreational” drug.

On May 29, 2009, Mayfield sued NASCAR and France, alleging that these statements were intentional, malicious, reckless and false, and asserting claims for defamation, violation of the North Carolina Persons with Disabilities Protection Act, unfair and deceptive trade practices, breach of contract, and negligence. The defendants removed the case to federal court, and NASCAR asserted counterclaims against Mayfield for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and fraud.

The defendants moved for judgment on the pleadings, which the district court granted. Mayfield filed a motion to reconsider and to amend his complaint, and the court denied the motion.

Mayfield appealed to the 4th Circuit, which affirmed.

LAW: Under Florida law, which the parties agreed applied to this action, a party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract. Med. Ctr. Health Plan v. Brick, 572 So.2d 548, 551 (Fla. Dist. Ct. App. 1990). While waivers are generally disfavored and will be construed strictly, Cain v. Banka, 932 So.2d 575, 580 (Fla. Dist. Ct. App. 2006), exculpatory clauses are enforceable where the intention to be relieved was made clear and unequivocal in the contract, and the wording is so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away. Hinely v. Fla. Motorcyle Training, Inc., 70 So.3d 620, 624 (Fla. Dist. Ct. App. 2011).

In this case, several of the documents Mayfield signed purported to release NASCAR from any and all liability arising out of the NASCAR substance abuse policy. Florida courts have held that exculpatory clauses which negate one party’s contractual obligations fail for lack of mutuality. See Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. Dist. Ct. App. 1973). However, while Florida law will not enforce a waiver where the claim renders the contract itself “entirely nugatory,” it permits waiver of run-of-the-mill breach-of-contract actions. See Greater Orlando Aviation v. Bulldog Airlines, Inc., 705 So.2d 120, 121 (Fla. Dist. Ct. App. 1998). In this case, the liability waiver was enforceable under Florida law as to the plaintiffs’ unfair and deceptive trade practices counts.

An appellant’s brief must contain appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies. Fed. R. App. P. 28(a)(8). A party’s failure to raise or discuss an issue in his brief is to be deemed an abandonment of that issue. 11126 Baltimore Blvd., Inc. v. Prince George’s County, Md., 58 F.3d 988, 993 n.7 (4th Cir. 1995).

Here, Mayfield made no argument whatsoever that the unfair and deceptive trade practices count of their complaint was not covered by the waivers Mayfield signed. As such, this claim was properly dismissed.

The district court also properly dismissed all of Mayfield’s claims for failure to state a claim upon which relief may be granted. Mayfield did not dispute the district court’s finding that he was a public figure. Under N.Y. Times Co. v. Sullivan, a public figure must allege that the defamatory statement was made with “actual malice” – that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

Here, Mayfield asserted that the defendants’ statements were known by them to be false at the time they were made, were malicious or were made with reckless disregard as to their veracity. This sort of conclusory allegation, a mere recitation of the legal standard, was insufficient to state a claim of defamation.

Accordingly, the district court’s dismissal of Mayfield’s claims was affirmed.