Docket – December 19, 2018

NOTE: Evening Docket will be on hiatus from December 20, 2018 until the new year. Happy holidays!

4th U.S. Circuit Court of Appeals

Feminist Majority Found. v. Hurley (P), 4th Cir. (King) from EDVA at Richmond (Gibney).

A complaint for Title IX sex discrimination and retaliation sufficiently alleges a basis for imputing liability to the University of Mary Washington.

The university couldn’t turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace. The complaint alleges that the university had substantial control over the context of underlying harassment against members of a college feminist group because the harassment transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of campus. Some offending Yaks were also posted using the university’s wireless network. The complaint alleges that the university could have disabled access to Yik Yak campuswide, sought to identify those students using its network to harass and threaten other students, clearly communicated to the student body that sexually harassing behavior wouldn’t be tolerated, and provided anti-sexual harassment training to the entire student body and faculty. These allegations sufficiently describe the university’s substantial control over the context in which the alleged harassment occurred.

The university contends it was unable to control the harassers because the offending Yaks were anonymous. But according to the complaint, the university never sought to identify the students who posted the offending messages on Yik Yak or asked Yik Yak to identify those users. Harassment was reported to the university multiple times over many months, but administrators responded merely with listening circles, a generic email, and police protection at a one-off student event. The university’s Title IX coordinator advised the Feminists United members that the university was powerless to address the offending conduct.

First Amendment concerns do not render the university’s response sufficient because (1) true threats are not protected speech, and (2) it had several options that did not present First Amendment concerns. The threats described in the complaint appear to constitute criminal conduct. Steps should have been promptly taken by the University to identify the perpetrators. When an educational institution claims that it has done all it can to address instances of sexual harassment and threats, a reviewing court should consider whether the institution failed to take other obvious and reasonable steps. The plaintiffs have sufficiently alleged a sex discrimination claim under Title IX, based on deliberate indifference to specified student-on-student harassment.

Similarly, an educational institution can be liable for acting with deliberate indifference toward known instances of student-on-student retaliatory harassment. If an educational institution can be liable for student-on-student sexual harassment, it can also be liable for student-on-student retaliatory harassment.

Five other appellate courts have concluded that a school official can be liable under the Equal Protection Clause for his deliberate indifference to student-on-student sexual harassment. Here, the plaintiffs have sufficiently alleged an equal protection claim against President Hurley. Hurley allegedly sought to downplay the harassment and threats and made no effort to stop them. However, Hurley is nevertheless entitled to qualified immunity because he lacked fair warning that his conduct gave rise to such a claim.

Accordingly, the 42 U.S.C. § 1983 equal-protection claim against President Hurley was properly dismissed. But the district court erred in dismissing the Title IX sex discrimination and retaliation claims.

Affirmed in part, vacated in part, reversed and remanded. Judge Agee dissented.

No. 13-6491, Dec. 19, 2018. 4th Cir. (Niemeyer) from WDNC at Charlotte (Cogburn).

In 2003, the petitioner agreed to pleaded guilty to carjacking, use of a firearm in furtherance of a crime of violence, and possession of a firearm by a felon. Under the plea agreement, the government agreed, to dismiss two additional counts and to recommend a downward sentencing adjustment. The petitioner also agreed to waive “the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceeding under 28 U.S.C. § 2255.” He received a 272-months sentence.

In 2012, following our decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), the petitioner moved for relief under 28 U.S.C. § 2255 and was partially successful (based in part on the government’s partial waiver of its available defenses under the plea agreement). The district court entered an amended judgment in the petitioner’s criminal case on January 31, 2013, reimposing the 180-month sentence for the petitioner’s carjacking conviction and a consecutive 84-month sentence for his § 924(c) conviction.

In addressing the petitioner’s argument that he was “entitled to be resentenced,” the court rejected that argument based on various applicable provisions of law. However, its analysis didn’t indicate that the court considered itself limited to granting the relief that it entered. It did not abuse its discretion in entering the amended judgment in the form that it did.

Dismissed. Judge Gregory dissented in part.

U.S. District Court – Virginia Eastern

Interactive Brokers LLC v. Saroop, EDVA at Richmond (Payne).

The court vacated an arbitration award based on the arbitrators’ disregard for applicable law.

The plaintiff is an online brokerage firm that provides a web-based platform for sophisticated investors to purchase and sell securities and other products on various exchanges throughout the world. Its contracts with its customers include, among other things, waivers of liability for any and all losses sustained through the market. The defendants in this case were three such customers who brought a claim against the plaintiff for violating Financial Industry Regulating Authority (FINRA) rules.

There is no private right of action under FINRA rules. Further, the Arbitrators knew and understood that that a claim for damages must be tied to a recognized cause of a action, knew that principle was applicable in this dispute, and disregarded it. After receiving clear guidance from the court that they needed to establish a predicate for liability, the arbitrators doubled down by adding to their report more language about violating FINRA rules rather than discussing one of the claims for relief stated in their case summary.

The plaintiff’s counterclaims are reinstated, and the case is remanded to a FINRA arbitration panel with specific instructions that the counterclaims be considered by a different panel.

Plaintiff’s motion to vacate arbitration award granted.

Categories: Daily Dockets

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