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Opinions – 1/21/15: 4th U.S. Circuit Court of Appeals

Constitutional Law

Freedom of expression 

BOTTOM LINE: District court did not err in granting summary judgment to city on claims that a city sign ordinance, which exempted from regulation flags and other governmental and religious emblems, violated the plaintiffs’ constitutional rights; the exemptions indicated no preference for a particular speaker or message and were reasonably related to the city’s interests in promoting traffic safety and aesthetics, thus, the ordinance was a content-neutral restriction on speech that satisfied intermediate scrutiny.

CASE: Central Radio Company, Inc. v. City of Norfolk, Virginia, No. 13-1996 (decided Jan. 13, 2015) (Judges Agee & KEENAN) (Judge Gregory dissenting). TDR #15-0113-60, 29 pages.

COUNSEL: Michael Bindas, Institute for Justice, Bellevue, WA, for Appellants/Cross-Appellees. Adam Melita, City Attorney’s Office, Norfolk, VA, for Appellee/Cross-Appellant.

FACTS: The City of Norfolk adopted a zoning ordinance that included a chapter governing the placement and display of signs. However, as defined in the ordinance, a “sign” did not include any “flag or emblem of any nation, organization of nations, state, city, or any religious organization,” or any “works of art which in no way identify or specifically relate to a product or service.” Such exempted displays were not subject to regulation under the sign code. With respect to signs that were eligible for regulation, the sign code generally required that individuals apply for a “sign certificate” verifying compliance with the sign code.

In April 2010, the Norfolk Redevelopment and Housing Authority (“NRHA”), a chartered political subdivision of Virginia, initiated condemnation proceedings against the plaintiffs, Central Radio Company, Inc. and several other landowners, allegedly intending to take and transfer the various properties to Old Dominion University (“ODU”). Central Radio and the other landowners successfully opposed the taking in state court. A trial court initially ruled in favor of the NRHA, but that ruling was reversed on appeal by the Supreme Court of Virginia.

In March 2012, while the appeal was pending in state court, Central Radio’s managers placed a 375-square-foot banner on the side of Central Radio’s building facing a major state highway. The banner depicted an American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and a message regarding eminent domain. After an ODU employee complained to a City official, zoning officials issued Central Radio citations for displaying an oversized sign and for failing to obtain a sign certificate before installing the sign.

In May 2012, the plaintiffs initiated a civil action to enjoin the City from enforcing its sign code. The plaintiffs alleged that the sign code was unconstitutional because it subjected their display to size and location restrictions, but exempted certain from similar limitations any “flag” or governmental or religious “emblem.” The district court denied the plaintiffs’ motions and ultimately granted summary judgment in favor of the City.

The plaintiffs appealed to the 4th Circuit, which affirmed the judgment of the circuit court.

LAW: The plaintiffs argued that the sign code constituted a content-based restriction on speech that could not survive strict scrutiny. A distinction is content-based only if it distinguishes content with a censorial intent to value some forms of speech over others to distort public debate, to restrict expression because of its message, its ideas, its subject matter, or to prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Clatterbuck v. City of Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013). A regulation is not a content-based regulation of speech if: (1) the regulation is not a regulation of speech, but rather a regulation of the places where some speech may occur; (2) the regulation was not adopted because of disagreement with the message the speech conveys; or (3) the government’s interests in the regulation are unrelated to the content of the affected speech. Brown v. Town of Cary, 706 F.3d 294, 302 (4th Cir. 2013).

In a previous, comparable case reviewing a sign ordinance that generally subjected residential signs to certain quantity and size restrictions but exempted from regulation “holiday decorations” and “public art,” the 4th Circuit held that the municipality demonstrated a “reasonable relationship” between its exemptions and its legitimate interests in traffic safety and aesthetics. Id. at 304. Similarly, here, the City of Norfolk generally allowed signs regardless of the message displayed, and simply restricted the time, place, or manner of their location. And, while exemptions to those restrictions might have an incidental effect on some speakers or messages, it was reasonable to presume that works of art generally enhance rather than harm aesthetic appeal and that flags or emblems generally have a less significant impact on traffic safety than other, more distracting displays. Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 366 (4th Cir. 2012).

Thus, by exempting the flags or emblems of governmental or religious organizations from reasonable size restrictions, the City did not indicate any preference for a particular governmental or religious speaker or message, and the sign code exerted only an “incidental effect” on the flags or emblems of other organizations. Id. at 368. Given the City’s clear, content-neutral purpose and the absence of a more specific inquiry in the sign code regarding the content of the regulated signs, the sign code was a content-neutral regulation of speech. Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 434 (4th Cir. 2007). Because the sign code was content-neutral, intermediate scrutiny applied. Brown, 706 F.3d at 305.

Applying this level of scrutiny, the Norfolk sign code was enacted to promote aesthetics and traffic safety, both substantial government interests. Id. The sign code was narrowly tailored because it did not burden substantially more speech than is necessary to further the government’s legitimate interests. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). Finally, unlike an outright ban on speech, the sign code left open ample alternative channels of communication. Wag More Dogs, 680 F.3d at 369. Because the City’s content-neutral sign code satisfied intermediate scrutiny both facially and as applied to the plaintiffs’ display, the district court was correct in holding that the sign code satisfied the requirements of the First Amendment.

Accordingly, the judgment of the district court was accordingly affirmed.

DISSENT: In a case like this, involving political speech against the heaviest hand of government attempting to seize its citizens’ land, it is necessary to ensure a “reasonable fit” between the City’s asserted interests in aesthetics and traffic safety and the Code’s exemptions for government and religious emblems and flags. Brown v. Town of Cary, 706 F.3d at 303.

Here, the City did not demonstrate such a “reasonable fit.” Unlike the exemptions confronted in Brown for temporary holiday decorations and public art, there was no basis for presuming that the symbols and text of a government flag do not affect aesthetics or traffic safety and escape regulation, whereas a picture of a flag does negatively affect these interests and must be subjected to size and location restrictions. Therefore, the exemptions should have been forced to withstand heightened scrutiny under a content-based test.

Criminal Procedure

Insanity acquittal 

BOTTOM LINE: Under the federal commitment statute, which provides for commitment or release based on an insanity acquittee’s dangerousness, district court did not err in delaying defendant’s commitment proceedings arising from an earlier insanity acquittal until defendant was released from the term of imprisonment he was currently serving for a separate, later conviction, because the delay would serve the purposes of the federal commitment statute.

CASE: United States v. Conrad, No. 13-7384 (decided Jan. 13, 2015) (Judges DUNCAN, Keenan & Diaz). TDR #15-0113-61, 20 pages.

COUNSEL: Brian Beck, Office of the Federal Public Defender, Abingdon, VA, for Conrad. Jean Hudson, Office of the United States Attorney, Charlottesville, VA, for Appellee.

FACTS: In 2006, Samuel Conrad was indicted for multiple firearms offenses. Pursuant to a plea agreement executed in January 2007, the district court found Conrad not guilty only by reason of insanity (“NGI”). Pursuant to 18 U.S.C. §4243(a), the court ordered Conrad committed until eligible for release. Under 18 U.S.C. §4243, an NGI verdict renders a defendant an “acquitted person,” who “shall be committed” until eligible for release under the statute. Following a psychological examination, a hearing to determine commitment or release, based on a finding as to the defendant’s dangerousness, shall be conducted within 40 days of the NGI verdict.

In the present case, following a psychological examination, the district court held a hearing to determine Conrad’s dangerousness and ordered him released subject to various conditions. In August 2008, Conrad was charged with the murder of his sister-in-law. In February 2008, Conrad pleaded guilty to voluntary manslaughter for the 2008 murder charge and received a sentence of four years and seven months’ imprisonment with five years of supervised release. In July 2010, the district court revoked Conrad’s conditional release.

Conrad appealed the revocation of his conditional release to the United States Court of Appeals, 4th Circuit, which vacated that revocation as well as the original grant of conditional release because the district court lacked authority under §4243 to impose the conditions. The effect of the order was to revert the status of Conrad’s §4243 proceedings to the point prior to his conditional release. Therefore, it required a new hearing under §4243(e) to determine Conrad’s dangerousness and whether he should be unconditionally released or indefinitely committed.

In 2012, prior to the ordered remand, the government filed new charges against Conrad, resulting in his 2013 conviction and imprisonment. In that case, the district court initially found Conrad incompetent to stand trial, and it stayed further action in the case arising from the 2007 NGI adjudication until Conrad became competent. The court found Conrad’s competency restored in late 2012. At that point, Conrad was taken into custody to await trial on the 2012 charges.

Because Conrad was in custody and therefore could not be released through a §4243 hearing, the district court opted to await the outcome of the 2012-2013 case before conducting the §4243 hearing yet to be held. In 2013, Conrad pleaded guilty to possession of a firearm by a convicted felon and was sentenced to eight years’ imprisonment and three years’ supervised release. His release from prison was scheduled for 2019. Conrad then moved the district court to dismiss the §4243 commitment proceedings in the case below. The court denied Conrad’s motion to dismiss the commitment proceedings and ordered a delay of the proceedings until Conrad completed his current term of imprisonment.

Conrad appealed to the 4th Circuit, which affirmed the judgment of the district court.

LAW: Conrad argued that his status as an inmate prevented him from qualifying as an “acquitted” person, “posing a danger to the public,” or “being released” under §4243. Therefore, he claimed, the district court erred in denying his motion to dismiss the commitment proceedings. However, Conrad pointed to no statutory provision in §4243 or elsewhere that identified any circumstance that would render §4243 inapplicable. Certainly, he identified no provision permitting nullification of the statute’s applicability through subsequent commission of crime and incarceration.

Section 4243 applies on its face to NGI acquittees, and unambiguously requires a hearing to determine commitment or release. The case Conrad offered for support, United States v. Kenney, 152 F. Supp. 2d 631 (M.D. Pa. 2001), was not binding and was analytically distinguishable. As such, the district court did not err by denying Conrad’s motion to dismiss the commitment proceedings on the ground that §4243 did not apply to Conrad.

Moreover, §4243 authorizes the delay imposed by the district court, and the statute’s purposes supported the district court’s decision to delay the §4243 hearing until Conrad’s release from prison. Section 4243 guarantees two concomitant rights: on the one hand, the right of the acquittee to release once his mental disorder no longer makes him a danger to the public; and on the other, the right of the public at large to protection from the acquittee’s potential dangerousness. Jones v. United States, 463 U.S. 354, 368 (1983). Delaying Conrad’s hearing until he completes his term of incarceration served both purposes.

First, delay served the purpose of ensuring Conrad’s right to release once he was found recovered or not dangerous. Conrad was not eligible for release while he remained incarcerated for the 2013 conviction. Therefore, the statutory entitlement to release could not flow to Conrad until he was no longer in prison. Delaying his hearing until he had served his term of incarceration would allow Conrad’s right to release (if the court determined that he had recovered his sanity or did not pose a substantial risk to the public) to come to fruition.

Second, delay served the purpose of protecting the public from Conrad’s potential dangerousness. Because Conrad could not pose a danger to the public at large while he remained incarcerated, the public’s statutory right to protection did not arise until Conrad would otherwise be released from prison. For these reasons, the district court’s decision to delay the hearing until after Conrad completed his prison term did not run counter to the statute’s purposes, but, rather, furthered them.

Accordingly, the district court’s denial of Conrad’s motion to dismiss his commitment proceedings under 18 U.S.C. §4243 and its order that the proceedings be delayed while Conrad completed his current term of imprisonment were affirmed.

Criminal Procedure


BOTTOM LINE: District court erred in joining two carjacking counts against defendant with a felon-in-possession-of-a-firearm charge because the felon-in-possession count arose out of a distinct incident unrelated to the carjacking which occurred 17 days later, with nothing tying the two events together other than the defendant, and the felon-in-possession count was thus not an offense of the same or similar character as the carjacking counts.

CASE: United States v. Hawkins, No. 08-4576 (amended Jan. 13, 2015) (Judges Motz, AGEE & Davis (Sitting by Designation)). TDR #15-0113-62, 32 pages.

COUNSEL: Sicilia Englert, Lawlor & Englert, Greenbelt, MD, for Appellant. Solette Magnelli, Office of the United States Attorney, Baltimore, MD, for Appellee.

FACTS: On March 7, 2007, Collin Hawkins was indicted on four separate counts related to the carjacking of a vehicle driven by Reuben King, a driver for a car service in Baltimore, Maryland. Count I alleged a carjacking based on the robbery of King’s vehicle, in violation of 18 U.S.C. §2119 (2000). Count II alleged that Hawkins knowingly possessed and brandished a firearm in furtherance of a crime of violence, the carjacking, in violation of 18 U.S.C. §924(c)(1)(A)(ii). Count III alleged that Hawkins, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly and unlawfully possessed a loaded firearm, a Bersa model Thunder .9 mm pistol, in violation of 18 U.S.C. §922(g)(1), the gun seized when he was arrested. Count IV alleged another felon in possession of a firearm charge, relating to a shotgun seized during a search of Hawkins’s residence.

Prior to trial, Hawkins moved to sever the carjacking counts, Counts I and II, from Counts III and IV, in the basis of improper joinder. The district court denied the motion. The Government elected not to proceed on Count IV, and trial was held only on Counts I, II, and III. Hawkins pled not guilty to all three counts. However, as to Count III, Hawkins conceded his prior felony conviction and his possession of the .9 millimeter handgun at the time of his arrest both to the court prior to opening statements and again to the jury during opening statements.

The jury found Hawkins guilty on all three counts. Hawkins appealed his conviction and sentencing to the 4th Circuit, which affirmed in part and vacated in part the judgment of the district court.

LAW: Hawkins contended that the district court erred in denying his motion to sever Counts I and II from Count III because Count III was improperly joined with Counts I and II under Federal Rule of Criminal Procedure Rule 8. Rule 8(a) provides that the indictment or information may charge a defendant in separate counts with two or more offenses if the offenses charged are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. Rule 8(a) permits very broad joinder because the prospect of duplicating witness testimony, impaneling additional jurors, and wasting limited judicial resources suggests that related offenses should be tried in a single proceeding. United States v. Mir, 525 F.3d 351, 357 (4th Cir. 2008).

However, the requirements of Rule 8(a) are not infinitely elastic and cannot be stretched to cover offenses that are discrete and dissimilar. United States v. Mackins, 315 F.3d 399, 412 (4th Cir. 2003). In the present case, the Government contended that the carjacking counts and possession of a firearm by a felon (Count III) were all offenses of the “same or similar character.” While Hawkins admitted that Counts I and II were properly joined because they both related to the same carjacking that occurred on November 22, 2006, he argued that Count III was entirely unrelated to Counts I and II, in part because the felon-in-possession count arose out of a distinct incident unrelated to the carjacking and occurred 17 days later. Hawkins emphasized that there was no link between the carjacking counts and Count III because the handgun the police recovered from his person on December 9 was not the same gun used in the carjacking.

The Government did not contest the fact that the carjacking and felon in possession counts involved different firearms. It contended, nevertheless, that all three counts were properly joined as offenses of the “same or similar character” because all three were firearms offenses and because all these events occurred within a three-week period. In support of its argument, the Government cited United States v. Cole, 857 F.2d 971 (4th Cir. 1988), and United States v. Rousseau, 257 F.3d 925 (9th Cir. 2001).

However, the Government’s reliance on these cases was misplaced. In Cole, there was not merely “some connection” between the joined counts but a strong connection. Cole, 857 F.2d at 973. By contrast, here, the Government proffered no evidence demonstrating a logical and close connection between the alleged carjacking and possession of a .357 caliber revolver on November 22, and Hawkins’ possession of a .9 millimeter pistol on December 9. And, in Rousseau, the defendant was charged with two counts of violating the same statute, 18 U.S.C. §922(g)(1). By contrast, here, Hawkins was charged with three different offenses: carjacking and possession of a firearm in furtherance of a crime of violence, and, about three weeks later, being a felon in possession of a different firearm. There was no similarity in the connection between these three different counts and the counts on the same offense found appropriate for joinder in Rousseau.

Most persuasive was the decision of the 5th Circuit in United States v. Holloway, which involved a factual scenario very similar to that in the case at bar. United States v. Holloway, 1 F.3d 307, 310–11 (5th Cir. 1993). In Holloway, the defendant was tried on separate counts for robbery and being a felon in possession of a firearm although the arrest on the later charge came two months after the alleged robbery. The Court held that joinder of the robbery and unrelated felon-in-possession charge was improper under Rule 8. Id.

Similarly, in the present case, the only connection between Count III and the carjacking counts was the defendant, Hawkins. Such a connection was not sufficient to sustain joinder. See Cardwell, 433 F.3d at 387. As such, Counts I and II were not offenses of the “same or similar character” as Count III. The misjoinder of Counts I and II with Count III affected Hawkins’s substantial rights because the misjoinder had substantial and injurious effect or influence in determining the jury’s verdict. Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Therefore, reversal was required.

Accordingly, Hawkins’s convictions on Counts I and II were vacated; his conviction on Count III as a convicted felon in possession of a firearm was affirmed, but his sentence on that count was vacated as it was determined, in part, based on his convictions under Counts I and II; and the case was remanded for further proceedings.

Criminal Procedure

Search and seizure 

BOTTOM LINE: Law enforcement officers who, suspecting defendant of violating the terms of his supervised release by changing residences without notice, obtained and executed an arrest warrant at defendant’s new home, violated the rights of defendant and his roommates when, after finishing a protective sweep of the apartment, they conducted a walk-through and dog sniff; under applicable 4th Circuit precedent, once the protective sweep had ended, the officers needed a search warrant to go further.

CASE: United States v. Hill, No. 13-4806, United States v. Barker, No. 13-4811, United States v. Dunigan, No. 13-4820 (decided Jan. 13, 2015) (Judges DIAZ, Thacker & Grimm (Sitting by Designation)). TDR #15-0113-, pages.

COUNSEL: Andrew Greenlee, Brownstone, P.A., Winter Park, FL; Brian Kornbrath, Office of the Federal Public Defender, Clarksburg, WV; David Schoen, David I. Schoen, Attorney at Law, Montgomery, AL, for Appellants. Shawn Morgan, Office of the United States Attorney, Clarksburg, WV, for Appellee.

FACTS: In February 2013, Eric Barker was serving a term of supervised release in connection with a felony drug conviction. The conditions of his supervised release required him to notify his probation officer if he moved and to permit probation officers to visit him at home at any time and confiscate contraband in plain view. Suspecting him of moving without notification, law enforcement officials obtained a warrant for Barker’s arrest and executed it at his new home. Inside, the police officers found Barker and two other individuals, Robert Hill and Megan Dunigan, also on supervised release.

After the officers had taken all three into custody and had completed their protective sweep, they conducted a walk-through of the apartment to look for contraband and other evidence of supervised release violations. Officers then had a drug-detection dog sniff around the apartment. Only after the dog alerted did the officers seek a search warrant.

The defendants were charged with conspiracy to possess with intent to distribute heroin, aiding and abetting possession with intent to distribute heroin, and aiding and abetting the maintenance of a drug-involved residence. They filed motions to suppress evidence, challenging the lawfulness of the arrest warrant execution, protective sweep, walk-through, dog sniff, and the search warrant’s validity. They also sought to exclude evidence found during the execution of the search warrant as fruit of the poisonous tree. The magistrate judge recommended denying the motions to suppress, and the district court adopted the magistrate judge’s recommendation.

The defendants entered conditional guilty pleas to aiding and abetting possession with intent to distribute heroin and preserved the right to appeal the denial of their suppression motions. The district court sentenced Barker to 151 months in prison, Dunigan to 18 months, and Hill to 27 months. The court also imposed three years’ supervised release on each of them. The defendants appealed their convictions to the 4th Circuit, which vacated the judgment of the circuit court and remanded the case.

LAW: The defendants contended that once the protective sweep of the apartment had ended, the officers needed a warrant to go any further. The present case was similar to a prior case, United States v. Bradley, in which the 4th Circuit held that a parole officer must secure a warrant prior to conducting a search of a parolee’s place of residence even where, as a condition of parole, the parolee has consented to periodic and unannounced visits by the parole officer. United States v. Bradley, 571 F.2d 787, 789 (4th Cir. 1978). In reaching this conclusion, the Bradley Court recognized that, although the governmental interest in supervision is great and the parolee’s privacy interest is diminished, these considerations did not excuse the parole officer from complying with the Fourth Amendment’s warrant requirement. Id.

Here, as in Bradley, the defendants agreed to home visits by a probation officer but not to warrantless searches. Unlike in Bradley, however, the defendants here also agreed that a probation officer could visit them “at any time” and confiscate contraband in plain view. This distinction, however, was irrelevant, as the fact remained that the defendants, as in Bradley, did not consent to warrantless home searches as a condition of supervision.

Because none of the three relevant cases decided after Bradley explicitly or implicitly overruled its holding, Bradley controlled the outcome here. See Griffin v. Wisconsin, 483 U.S. 868, 870-71 (1987); United States v. Knights, 534 U.S. 112, 114 (2001); Samson v. California, 547 U.S. 843 (2006). Thus, Bradley remained good law in the 4th Circuit. As a result, law enforcement officers generally may not search the home of an individual on supervised release who is not subject to a warrantless search condition unless they have a warrant supported by probable cause. Because the officers did not have a warrant when they conducted the walk-through and dog sniff, those searches were unlawful.

While the government conceded that the dog sniff would have been an illegal search after the Supreme Court’s decision in Florida v. Jardines, 133 S. Ct. 1409 (2013), the government claimed that the evidence discovered in the course of this unlawful search was nevertheless admissible because the officers relied in good faith on then-binding appellate precedent holding that a dog sniff was not a search. Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011). However, the government did not cite any pre-Jardines case decided by the Supreme Court or the 4th Circuit that approved of a warrantless dog sniff inside a home. Therefore, the officers could not have reasonably relied on any binding appellate precedent when conducting the dog sniff in this case. As such, the Davis good-faith exception did not apply.

The government alternatively argued that the evidence was admissible under the independent source doctrine, which applies when a search pursuant to a warrant was in fact a genuinely independent source of the information and tangible evidence that would otherwise be subject to exclusion because they were found during an earlier unlawful search. Murray v. United States, 487 U.S. 533, 542 (1988). In the present case, however, the facts called into question whether an illegal search affected the officer’s decision to seek a warrant. Therefore, it was appropriate for the district court to consider the issue.

Accordingly, the judgments of the district court were vacated and the case remanded to the district court to determine whether the information gained from the illegal walk-through and dog sniff affected the officer’s decision to seek a warrant.

Immigration Law

Labor-certification application 

BOTTOM LINE: Federal statutory provision under which an alien who is unlawfully present in the United States may be eligible for adjustment of status if he is the beneficiary of a labor-certification application filed on or before April 30, 2001, operates as a statute of repose that is not subject to equitable tolling, even if the deadline was missed due to ineffective assistance of counsel.

CASE: Prasad v. Holder, No. 14-1034 (decided Jan. 12, 2015) (Judges Duncan, Agee & HARRIS). TDR #14-0112-60, 15 pages.

COUNSEL: Mark Mancini, Wasserman, Mancini & Chang, Washington, for Petitioner. Walter Bocchini, United States Department of Justice, Washington, for Respondent.

FACTS: Kamleshwar Prasad, a native and citizen of India who was unlawfully present in the United States, sought to adjust his status to that of lawful permanent resident. Though persons unlawfully present in this country generally are barred from becoming lawful permanent residents, Prasad relied on an exception in §245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1255(i), which provides that an alien who is unlawfully present in the United States may be eligible for adjustment of status if he is the beneficiary of a labor-certification application filed on or before April 30, 2001. Prasad’s original attorney filed Prasad’s labor-certification application on July 13, 2001, more than two months after the statutory deadline.

In 2007, assisted by different counsel, Prasad filed for adjustment of status. Although Prasad conceded that his labor-certification application was filed more than two months after the statutory deadline, he argued that because it was his attorney who failed to file a timely application on his behalf, the deadline should be equitably tolled. United States Citizenship and Immigration Services denied Prasad’s application on the ground that Prasad was not the beneficiary of a labor-certification application filed on or before April 30, 2001.

In the removal proceedings that followed, the Immigration Judge denied Prasad’s renewed application for adjustment of status and ordered his removal to India. Prasad filed a motion to reopen and reconsider, raising the equitable-tolling argument. The IJ denied the motion, and the Board of Immigration Appeals affirmed the IJ’s decision, holding that the §1255(i) deadline operates as a statute of repose and thus was not subject to equitable tolling. Prasad appealed the BIA’s decision to the 4th Circuit, which denied in part and dismissed in part Prasad’s petition for review.

LAW: Prasad’s main contention was that his attorney’s ineffective assistance in failing to file a timely labor-certification application justified equitable tolling of §1255(i)’s deadline. However, the deadline in §1255(i) operates as a statute of repose that is not subject to equitable tolling. Thus, whether the failures of Prasad’s original counsel otherwise might warrant equitable tolling was a question that was not reached by the appellate court.

A statute of repose puts an outer limit on the right to bring a civil action, after which no cause of action can accrue. CTS Corp. v. Waldburger, 573 U.S. ———, 134 S. Ct. 2175, 2182 (2014). Equivalent to a “cutoff,” a statute of repose operates as a substantive bar to liability, reflecting a legislative policy judgment that no legal right should be recognized after a statutorily determined end point. See id. To avoid interference with those legislative judgments, statutes of repose generally are treated as absolute time limits and are not tolled for any reason. First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989), cert. denied, 493 U.S. 1070 (1990).

Prasad argued that §1255(i)’s deadline was not a statute of repose, but instead a statute of limitations to which equitable tolling did apply. Whereas a statute of repose puts an end date on substantive liability, a statute of limitations is a purely procedural defense, imposing a time limit, usually based on when a claim accrues, during which a plaintiff must bring suit on an existing cause of action. See CTS Corp., 134 S. Ct. at 2182. Because a chief purpose of statutes of limitations is to require plaintiffs to pursue their claims promptly and with diligence, where a plaintiff has done just that but has been prevented by some extraordinary circumstance from bringing a timely action, equitable tolling of the deadline may be appropriate. Id.

As concluded by the 9th Circuit, the only other federal circuit court to address the question, the April 30, 2001 deadline has all the hallmarks of a statute of repose, consistent with Congress’s intent to close the class of individuals entitled to special treatment under §1255(i). Balam-Chuc v. Mukasey, 547 F.3d 1044, 1049 (9th Cir. 2008). Statutes of limitations are typically tied to the date on which a claim accrues, which means that the deadline may be different for each plaintiff. See CTS Corp., 134 S. Ct. at 2182. The defining feature of a statute of repose, on the other hand, is that it establishes the same deadline for everyone, setting out a fixed, statutory cutoff date independent of any variable related to claim accrual or discovery of an injury. Balam-Chuc, 547 F.3d at 1049. Section 1255(i)’s April 30, 2001 deadline is a textbook example of a specific date that marks the close of a class, not a general period based on discovery of an injury or accrual of a claim. Balam-Chuc, 547 F.3d at 1049.

Second, §1255(i)’s sunset date does not operate as a procedural time limit on the bringing of some extrinsic cause of action, as a statute of limitations does. Instead, §1255(i) defines the substantive right itself, with its sunset date one of a list of statutory conditions on eligibility for adjustment of status. Such conferral of a substantive right is the work of a statute of repose, not a statute of limitations. See First United, 882 F.2d at 866. Moreover, the limited legislative history addressing the April 30, 2001 deadline confirms that it was intended and understood as a statutory cutoff date outside of which applications could not be accepted. 46 Cong. Rec. 27161 (2000). Because Prasad did not meet the April 30, 2001 deadline, and because that deadline is a statute of repose not subject to equitable tolling, Prasad was not eligible for relief under §1255(i), and his motion to reopen was properly denied on that basis alone.

Accordingly, the judgment of the BIA was affirmed, and Prasad’s petition for review was denied in part and dismissed in part.

Immigration Law


BOTTOM LINE: Virginia law on unauthorized use of a motor vehicle does not qualify categorically as an “aggravated felony” for purposes of the federal statute authorizing the removal of any alien who is convicted of an aggravated felony at any time after admission to the United States; therefore, the appellate court vacated an order of removal against the petitioner, a Honduran citizen and lawful permanent U.S. resident.

CASE: Castillo v. Holder, No. 14-1085 (decided Jan. 14, 2015) (Judges Duncan, KEENAN & Diaz). TDR #15-0114-60, 17 pages.

COUNSEL: Ellis Baggs, Baggs Law Group, PLC, Mechanicsville, VA, for Petitioner. Nicole Thomas-Dorris, United States Department of Justice, Washington, for Respondent.

FACTS: Julio Castillo, a citizen of Honduras, entered the United States as a lawful permanent resident in July 1982, when he was about 11 years old. In 1995, Castillo was convicted in a Virginia state court of unauthorized use of a motor vehicle, in violation of Virginia Code §18.2-102 (unauthorized use). Under that statute, a person’s unauthorized use of another’s vehicle constitutes a Class 6 felony, unless the value of such vehicle is less than $200, in which case the person is guilty of a Class 1 misdemeanor. The Virginia court sentenced Castillo to serve a term of 18 months’ imprisonment, with all but 35 days suspended.

In January 2012, the Department of Homeland Security initiated removal proceedings against Castillo based on 8 U.S.C. §1227(a)(2)(A)(iii), which authorizes the Attorney General to remove any alien who is convicted of an aggravated felony at any time after admission. DHS contended that Castillo’s unauthorized use conviction in 1995 qualified as an “aggravated felony” under 8 U.S.C. §1101(a)(43)(G), because the crime was a theft offense for which the term of imprisonment was at least one year. Castillo disputed that his conviction qualified as a “theft offense.” The immigration judge rejected Castillo’s argument and held that Castillo was removable.

After the Board of Immigration Appeals dismissed Castillo’s appeal from the IJ’s order of removal, Castillo appealed to the 4th Circuit, which granted Castillo’s petition for review and vacated the order of removal.

LAW: Castillo contended that the BIA erred in holding that his unauthorized use conviction qualified as a “theft offense” under Subsection G. Under the Immigration and Nationality Act, a non-citizen is removable if he is “convicted of an aggravated felony at any time after admission.” 8 U.S.C. §1227(a)(2)(A)(iii). The INA defines “aggravated felony” by enumerating a long list of crimes, including a “theft offense” (including receipt of stolen property) offense for which the term of imprisonment was at least one year. 8 U.S.C. §1101(a)(43)(G). The INA does not define the term “theft offense.”

In In re V-Z-S-, which the BIA cited in its decision in the present case, the BIA categorized the California crime of “unlawful driving or taking of a vehicle” as a “theft offense,” even though the California statute does not require an intent to permanently deprive the owner of the property, as would be required for common law larceny. See In re V-Z-S-, 22 I. & N. Dec. 1338, 1346-47 (BIA 2000). The BIA thus construed the term “theft offense” to encompass the taking of property when there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Id. at 1346. Notably, however, in articulating this construction of the statute, the BIA emphasized that not all takings of property will meet this standard, because some takings entail a de minimis deprivation of ownership interests and constitute only a “glorified borrowing” of property. Id.

Subsequently, the BIA refined its definition of “theft offense” for purposes of Subsection G, clarifying that this term “consists of the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” In re Garcia-Madruga, 24 I. & N. Dec. 436, 440 (BIA 2008). For purposes of the present analysis, however, the Virginia crime of unauthorized use does not qualify as a “theft offense” even under this definition. To determine whether a Virginia conviction for unauthorized use qualifies as an aggravated felony “theft offense” under the above definition, it was necessary to employ a categorical approach. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).

The Virginia unauthorized use statute prohibits in relevant part: (1) the taking, driving, or use of another’s vehicle; (2) without consent of the owner; and (3) with the intent to temporarily deprive the owner of his possession of the vehicle but without intent to steal the vehicle. Va. Code §18.2-102. Under the Virginia statute, when an act violates the specific scope or duration of consent to use a vehicle, a trespassory taking occurs. Overstreet v. Commonwealth, 435 S.E.2d 906 (Va. Ct. App. 1993). Under this reasoning, Virginia law permits a conviction for unauthorized use when an owner authorizes an individual to use the owner’s vehicle for a stated purpose, but the individual uses the vehicle for even a slightly different purpose. See Medlin v. Commonwealth, 2004 Va. App. LEXIS 527 (Va. Ct. App. Nov. 9, 2004). Thus, the Virginia statute covers circumstances typically viewed as “glorified borrowing,” which the BIA has determined fall outside the definition of a “theft offense.” See In re V-Z-S-, 22 I. & N. Dec. at 1346.

As such, the BIA’s conclusion that Virginia unauthorized use is a “theft offense” was erroneous as a matter of law because the BIA focused solely on the statutory language and disregarded the fact that Virginia’s courts have held even de minimis deprivations of ownership interests to be statutory violations. See United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc). Because there is “a realistic probability” Virginia would apply its unauthorized use statute to conduct that falls outside the BIA’s definition of “theft offense,” Virginia unauthorized use does not qualify categorically as an “aggravated felony” under Subsection G. Therefore, the BIA erred as a matter of law in determining that Castillo previously had been convicted of an “aggravated felony” within the meaning of Subsection G.

Accordingly, Castillo’s petition for review was granted and the order for his removal was vacated.


Workers’ Compensation

Exclusive remedy provision

BOTTOM LINE: The exclusivity provision of the Virginia Workers’ Compensation Act barred a personal injury lawsuit filed in a Virginia district court by an employee of a North Carolina corporation against a subcontractor, a Virginia corporation, because the employee’s injury occurred in Virginia and the subcontractor was a statutory co-employee under Virginia law.

CASE: Demetres v. East West Construction, No. 14-1180 (decided Jan. 15, 2015) (Judges Niemeyer, GREGORY & Davis). TDR #15-0115-60, 11 pages.

COUNSEL: Earl Murphy, Moody Law Firm, Portsmouth, VA, for Appellant. Danielle Giroux, Harman, Claytor, Corrigan & Wellman, Richmond, VA, for Appellee.

FACTS: James Demetres was employed by Ashland Construction Co., a North Carolina corporation. In March 2011, Ashland hired a Virginia corporation, East West Construction, Inc., as a subcontractor to prepare a site in Virginia Beach for construction of a CVS Pharmacy, and designated Demetres as the superintendent. At the jobsite on March 28, 2011, a bulldozer, which was operated by an employee of East West, backed over Demetres, resulting in significant injuries and nearly killing him. Demetres subsequently received workers’ compensation benefits under North Carolina law through his employment with Ashland.

On March 27, 2013, Demetres filed a personal injury suit against East West in a Virginia district court, alleging negligence and seeking $100,000,000 in damages. East West filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that t the exclusivity provision of the Virginia Workers’ Compensation Act (“VWCA”), Va. Code Ann. §65.2-307, barred Demetres’s personal injury suit. The district court, relying largely on the decision in Garcia v. Pittsylvania County Service Authority, 845 F.2d 465 (4th Cir. 1988), granted East West’s motion and dismissed the suit.

Demetres appealed to the 4th Circuit, which affirmed the judgment of the district court.


LAW: Demetres argued that the Full Faith and Credit Clause required Virginia to defer to the law of North Carolina, the state that paid him benefits, in determining whether his suit was barred. Because this was a diversity action, the district court, sitting in Virginia, was required to apply Virginia law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941). Virginia subscribes to the lex loci delicti principle for determining the applicable substantive law in tort suits. Jones v. R.S. Jones & Assocs., Inc., 431 S.E.2d 33, 34 (Va. 1993).

According to that principle, the law of the place in which the injury occurred governs the substantive cause of action. Id. Because the injury that was the basis of this suit occurred in Virginia, the substantive law of Virginia governed. Under Virginia law, an injured employee who is covered by the VWCA is barred from suing his employer in tort for injuries “arising out of and in the course of the injured employee’s employment.” See, e.g., Simms v. Ruby Tuesday, Inc., 704 S.E.2d 359, 362 (Va. 2011); see also Va. Code Ann. § 65.2-307.

Under §65.2-302 of the Virginia Code, when any contractor contracts with a subcontractor for the performance of any part of the work undertaken by the contractor, then the contractor shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if that worker had been immediately employed by him. Va. Code Ann. §65.2-302(B). In such cases, the contractor is a “statutory employer.” Id. The Supreme Court of Virginia has interpreted the VWCA as barring suits where, as here, injured employees of a general contractor attempt to sue a subcontractor who was engaged in the general contractor’s “trade, business or occupation.” See, e.g., David White Crane Serv. v. Howell, 714 S.E.2d 572, 575 (Va. 2011).

When interpreting state law, a federal court is obligated to defer to the state’s highest court. See, e.g., Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir. 1998). Here, East West, a construction subcontractor preparing a worksite for Ashland, was clearly engaged in the same “trade, business or occupation” as Ashland. East West was therefore a statutory co-employee of Demetres under Supreme Court of Virginia precedent. Thus, if the VWCA applied to Demetres’s claim, his suit was barred.

Demetres argued that the VWCA did not apply to his claim because he obtained benefits in North Carolina. However, in Garcia v. Pittsylvania County Service Authority, the 4th Circuit held that the VWCA barred the claims of two employees of a North Carolina subcontractor for injuries sustained while working on a project for a Virginia general contractor in Virginia. Garcia, 845 F.2d at 468. The district court properly concluded that Garcia clearly foreclosed Demetres’s claim. Because Demetres’s injury occurred in Virginia, and East West was a statutory co-employee under Virginia law, his personal injury action was barred by the VWCA.

Accordingly, the judgment of the district court was affirmed.