Docket – December 13, 2018

4th U.S. Circuit Court of Appeals

Cowpasture River Preservation Ass’n v. U.S. Forest Service (P), 4th Cir. (Thacker) from USFS.

In issuing a Special Use Permit authorizing construction of the Atlantic Coast Pipeline through parts of the George Washington and Monongahela National Forests, with a right of way across the Appalachian National Scenic Trail, the U.S. Forest Service failed to comply with the National Forest Management Act, the National Environmental Policy Act, and the Mineral Leasing Act.

The Forest Service is trusted to “speak for the trees, for the trees have no tongues,” like Dr. Seuss’s Lorax. But here, the agency had serious environmental concerns that were suddenly and mysteriously assuaged in time to meet a private pipeline company’s deadlines. These circumstances support the conclusion that the agency abdicated its responsibility to preserve national forest resources.

Petition granted; agency decision vacated and remanded.

Va. Citizens Defense League v. Couric (P), 4th Cir. (Motz) from EDVA at Richmond (Gibney).

This case arises from the creation and publication of Under the Gun, a documentary film on gun violence in America. Aggrieved at their portrayal in the film, the appellants — Virginia Citizens Defense League and two of its members — filed this action for defamation by the film’s creators. The district court properly dismissed the case.

One member, who owns a gun store, contends that her business requires her to be knowledgeable about the right of individuals to purchase firearms” and that the edited footage suggests she isn’t. But no part of her job requires her to have nuanced views on gun policy. Had the film suggested that she didn’t know, for instance, whether a gun store owner must perform a background check, this might be a different case. But not having an answer as to effective alternatives to background checks does not imply anything about fitness to own a gun store and to sell guns.

The edited footage cannot reasonably be construed as implying that the League is unfit as a pro-2nd Amendment advocacy organization. At most, the film suggests that a handful of members could not immediately answer a difficult gun policy question. To be sure, the film gives the impression that a reporter’s final question stumped the panelists. But at worst, the plain, ordinary meaning of this edit conveys that these particular League members, after answering a series of related questions, didn’t have a ready-made answer to a nuanced policy question.

Although the filmmakers’ editing choices were questionable, the edited footage simply does not rise to the level of defamation under Virginia law.


Supreme Court of Virginia

Leonard v. Commonwealth (P), SCV (Mims) from Prince George (Sharrett).

The petitioner, a federal inmate, applied in the circuit court to change part of her name from Brian Allen to Bree Anne. She has been diagnosed with gender dysphoria and is transitioning from a male to female identity. The circuit court abused its discretion in denying her petition.

The petitioner’s application contained the information required by Code § 8.01-217(B) and articulated legitimate, non-frivolous reasons supporting the requested name change, supported by medical records. Had the circuit court held a hearing to receive and consider evidence, as required by subsection (D) as presently worded, it may have found a variety of reasons to ultimately deny the application. But the court denied the application prior to that stage, where the statute strictly limits review to assessing the application’s procedural sufficiency. Because the application in this case set forth good cause to be accepted for merits consideration, the circuit court abused its discretion in denying the application for lack of good cause.

The circuit court also abused its discretion by deviating from the statutory process for assessing a name-change application. The court referred the application to the Commonwealth’s Attorney for a response before denying the application for lack of good cause without a hearing four days after the response was received. Under Code § 8.01-217(D), a court must refer an application to the Commonwealth’s Attorney after finding that good cause exists to consider it on the merits; it cannot do so prior to making that initial determination. After finding that good cause exists, the court must make the referral and then hold a hearing. Only after the hearing may the court exercise its substantial discretion in deciding on the merits whether to grant the name change.

Reversed and remanded.

In re Phillips (P), SCV (Lemons).

No writ of actual innocence should issue in this case. This court’s authority to grant such a writ based on biological evidence is limited and does not lie where test results were not performed or certified by the Virginia Department of Forensic Science. Here, the petitioner doesn’t rely on test results provided by the Department but instead relies on tests conducted by the Serological Research Institute, a private laboratory. Therefore, the petition must be dismissed for failure to state a claim.

Bd. of Sup’rs of Fairfax Cty. v. Cohn (P), SCV (Goodwyn) from Fairfax (Mann).

Code § 15.2-2307(D)’s references to “building” and “structure” concern the edifices themselves, not their uses, and only protects the building or structure itself from removal. The circuit court erred in holding that § 15.2-2307(D) creates a vested right to an originally illegal use of a building or structure, after the owner has paid taxes to the locality for that building or structure for 15 years or more.

The Board of Zoning Appeals didn’t try to have the owners’ garage or garden House removed or declared illegal. The purported violation concerned only the use of those structures as dwellings. Code § 15.2-2307(D)(ii) doesn’t protect that use for the properties in question and, therefore, doesn’t prevent the county from requiring the owners to cease their illegal use of the structures as dwelling units and to remove the kitchens and other accoutrements that support that illegal use.

Reversed and final judgment.

McGinnis v. Commonwealth (P), SCV (Koontz) from CAV.

The safe harbor provision of Code § 8.01-271.1 does not apply in this case because it applies only where the “pleading, motion, or other paper is not signed.” Here, the motion in question was signed by the defendant himself, and § 8.01-271.1 provides no express remedy to these circumstances of this case. The statute simply does not contemplate a pleading signed by a party who may or may not have authority to do so. Assuming without deciding that the circuit court’s ruling on the motion to vacate the defendant’s convictions was properly before the court of appeals, this court can resolve this appeal on the merits and enter final judgment.

As defined by Code § 18.2-181, larceny by worthless check is not limited to checks passed as present consideration for goods and services. Here, the circuit court had sufficient evidence to conclude that on all three occasions in which the defendant presented a worthless check, he did so with the knowledge that there were not sufficient funds to cover the checks and with the intent to defraud the recipient. In refusing the defendant’s motion to vacate his convictions, the circuit court implicitly found, consistent with this court’s construction of the statute, that § 18.2-181 was not limited to checks made as payment for present consideration of goods or services, but applied to the passing of any worthless check with an intent to defraud. Accordingly, the judgment of the circuit court will be reinstated.

Reversed, vacated, and final judgment.

Smith v. Commonwealth (P), SCV (Lemons) from CAV.

The court of appeals properly found that evidence was sufficient to uphold a conviction of voluntary manslaughter.

Neither the defendant nor the Commonwealth asked the trial court to instruct the jury that words alone are never sufficient provocation to reduce murder to manslaughter, even though this principle is well established. The defendant expressly agreed to instructions that omitted the very legal principle on which she seeks to rely on appeal. An agreed jury instruction becomes the law of the case, even if it imposes “an inappropriate standard.” Thus, the defendant waived challenges to the wording of the voluntary manslaughter instruction.

In addition to the defendant’s familiarity with firearms and how to see whether a weapon is loaded, evidence was that the defendant aimed at the window near where the victim was standing, that the two had been arguing, and that the defendant went downstairs, got her gun, and came back upstairs and shot the victim. The jury could have inferred that she was angry with the victim and shot shot him in a heat of passion produced by the argument. Under these circumstances, this court cannot say that the evidence was insufficient to support the jury’s verdict.

Affirmed. Three justices concurred.

U.S. District Court – Virginia Western

Bonumose Biochem LLC v. Zheng, WDVA at Charlottesville (Moon).

In this trade-secrets case, the parties were involved with the scientific and commercial development of an artificial sugar called tagatose. In May 2017, the plaintiff sued for betrayal of trade secrets and breach of contract in the form of alleged siphoning of information about tagatose to a foreign entity. The United States later indicted the defendant for grant fraud related to the product.

The defendants have now filed an amended countercomplaint with three “counterclaims” that the plaintiff moves to dismiss and strike. Despite a clear prior ruling, the defendants consciously chose to proceed in the very same manner the court previously rejected: Plead first, and argue about the propriety of adding parties later. In addition to ignoring the court’s prior ruling that such a motion must be submitted before filing a pleading that joins non-parties, this approach flaunts the standing rules of this district and presses the boundaries of Federal Rule of Civil Procedure 11(b), wasting valuable time and resources and indicating a lack of respect for the court and opposing counsel.

The defendants’ reverse veil-piercing counterclaim consists mainly of repetitive, conclusory allegations of the type of that courts do not hesitate to dismiss in considering veil-piercing theories.

The plaintiff’s motions to dismiss and strike will be granted in part, with one counterclaim surviving.

Doe v. Shenandoah Valley Juvenile Ctr. Comm’n, WDVA at Harrisonburg (Dillon).

The defendant juvenile center is entitled to summary judgment as to a minor inmate’s claim regarding inadequate mental health treatment. However, disputed issues of fact precluding summary judgment with regard to his excessive force claim, including use of restraints, and to his claim based on the use of room confinement. These disputes exist both as to whether Doe has suffered an underlying constitutional violation and to the remaining elements of his claims under Monell v. Dept. of Soc. Servs., 436 U.S. 568 (1978).

Motion for summary judgment granted in part and denied in part.

Categories: Daily Dockets

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