Docket – January 7, 2019

4th U.S. Circuit Court of Appeals

Davison v. Randall (P), 4th Cir. (Wynn) from EDVA at Alexandria (Cacheris).

The interactive component of a Facebook Page administrated by the Chair of the Loudoun County Board of Supervisors was a public forum, and the Chair engaged in unconstitutional viewpoint discrimination when she banned the plaintiff from that forum.

The plaintiff has standing to sue based on record evidence that he intends to continue to use the Chair’s Facebook Page and that he faces a credible threat of future banning. These facts establish an injury in fact.

The district court properly concluded that the circumstances surrounding the Chair’s creation and administration of her Facebook Page, and banning of the plaintiff from that page, were actions under color of state law. She used the Chair’s Facebook Page as a tool of governance,” providing information to the public about her and the Board’s official activities, as well as soliciting public input on policy issues she and the Board confront.

The Chair’s Facebook page was a public forum. She intentionally opened the public comment section for public discourse, inviting “ANY Loudoun citizen” to post comments “on ANY issues, request, criticism, complement or just your thoughts.” She placed no restrictions on the public’s access to the page or use of the interactive component, and the public made numerous posts on matters of public concern. The record amply supports the district court’s finding that the Chair banned the plaintiff because he posted a comment alleging corruption in the school board – constituting black-letter viewpoint discrimination.

The district court also correctly dismissed claims against the Chair in her official capacity, finding that no policy played any role in the decision to ban the plaintiff from the Chair’s Facebook Page. There was no evidence that the Board knew of the Chair’s Facebook Page, let alone that it acquiesced in her administration of it.

Affirmed. Judge Keenan concurred, highlighting the need for more guidance from the Supreme Court about the interaction between the internet as a “public square” and First Amendment rights.

Cortez-Mendez v. Whitaker (P), 4th Cir. (Agee) from BIA.

Substantial evidence supports the Board of Immigration Appeals’ decision to deny withholding the petitioner’s removal from the United States. He asserts that gangs in his native El Salvador persecuted him because his father’s disabilities (deaf and mute) made him an “easy mark,” based on statements of ridicule the petitioner heard directed at his family.

The petitioner’s only evidence linking persecution to his father is that non-gang neighborhood harassers had “made fun of” him. It does not follow that gang members intimidated the petition because of his relation to his disabled father. Instead, circumstantial evidence in the record reflects that the petitioner was harassed because he didn’t join the gangs.

The Immigration & Naturalization Act doesn’t protect every person who rejects gang recruitment efforts. If the court were to grant withholding of removal based on the slim evidence in this record, every family member of a disabled person would be eligible for refugee status if anyone harassed them in their home country.

Petition denied.

United States v. Lynn (P), 4th Cir. (Jones) from MDNC at Greensboro (Osteen).

After the defendant pleaded guilty to being a felon in possession of a firearm, the district court did not err in failing to impose a sentence to run concurrent with an anticipated term of state imprisonment.

The district court recognized its discretion to order a concurrently-run sentence, but it found that the seriousness of the defendant’s offense conduct justified the court’s decision not to exercise that discretion. In most cases, the district court should decide whether its sentence will run concurrently with or consecutive to an anticipated state sentence involving relevant conduct. But the U.S. Sentencing Commission has pointed out that exercise of the court’s discretion will depend on the adequacy of the information available. Here, it is clear that the defendant’s case was not routine, and the court lacked adequate information to intelligently decide as to concurrent or consecutive sentencing. Thus, the court’s action was not erroneous.

Affirmed. Judge Floyd concurred in part and dissented in part.

U.S. District Court – Virginia Eastern

Under Virginia’s crime-fraud exception to the attorney-client and work-product privileges, the court will not quash the defendant’s subpoena to the non-party law firm that previously represented the plaintiff before it withdrew as counsel. The defendant presented substantial evidence that emails produced by the plaintiff, which would have been critical evidence of his case-in-chief, had been doctored, which would be a fraud on the court.
Motion to quash denied.

Categories: Daily Dockets

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