Docket – November 30, 2018

4th U.S. Circuit Court of Appeals

Tairou v. Whitaker (P), 4th Cir. (Gregory) from BIA.

The Board of Immigration Appeals erred in finding that the petitioner was not subjected to past persecution and that he lacked a well-founded fear of persecution were he to return to Benin. A threat of death constitutes persecution. Because the petitioner experienced multiple death threats in Benin, he established that he was subjected to past persecution.

Petition granted; remanded.

United States v. Terry (P), 4th Cir. (Gregory) from SDWV at Charleston (Goodwin).

Discovery of evidence seized during a traffic stop was not sufficiently attenuated from an unlawful search effectuated by surreptitious placement of a GPS device on the appellant’s vehicle, a flagrant constitutional violation.

The district court’s holding that the appellant did not have standing to move for suppression of the evidence seized during the traffic stop ignores the basic principle underlying the “fruit of the poisonous tree” doctrine: Defendants may seek to suppress not only evidence obtained as a direct result of an illegal search but also evidence later discovered as a result of that search. Accordingly, his drug conviction is vacated.

Reversed, vacated, and remanded.

Lester v. Flournoy (P), 4th Cir. (Diaz) from EDVA at Alexandria (O’Grady).

The defendant was sentenced to 22 years in prison because he was designated a career offender under the then-mandatory Sentencing Guidelines. However, later precedent established that this designation was wrong and that, as a result, his sentence should have been up to 11 years shorter. The district court denied his petition for habeas corpus relief. But the appellant’s challenge is permitted under the court’s recent decision in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018).

Vacated and remanded.

U.S. District Court – Virginia Eastern

EEOC v. Huntington Ingalls Inc.,  EDVA at Newport News (Morgan).

An employer is entitled to summary judgment as to the plaintiff’s disability-discrimination claim. The employer had refused to allow the plaintiff to use his hearing aids during a pre-hire hearing test, and he failed the minimum hearing standards for the position he sought.

Although the defendant would have been considered the plaintiff’s employer under the joint-employer doctrine, the plaintiff’s requested accommodation of working with his hearing aids in low-noise areas would not be reasonable given the defendant’s work environment. Further, the plaintiff has failed to adduce evidence that the defendant’s reason for not hiring him was a pretext for disability discrimination.

Motion for summary judgment granted.

U.S. District Court – Virginia Western

Wilhelm v. Ameristep Corp., WDVA at Roanoke (Dillon).

In this products liability case, the plaintiff alleges that he was injured when he fell from about 25 feet up in a tree while installing a tree step. He asserts that the tree step broke because of the location and size of an inclusion in its steel material. The defendant manufacturers and distributors argue that the tree step wouldn’t have broken if it had been fully installed and that the plaintiff was either contributorily negligent or misused the product. But there are disputes of fact as to whether there was unforeseen use and, if so, whether that use was a proximate cause of the accident.

Motion for summary judgment denied.

Categories: Daily Dockets

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