Docket – January 8, 2019

4th U.S. Circuit Court of Appeals

Stewart v. Iancu (P), 4th Cir. (Wynn) from EDVA at Alexandria (Brinkema).

Contrary to the district court’s holding, 42 U.S.C. § 2000e-16(c)’s 180-day waiting period operates independently of the intake agency’s extended investigation window for amended complaints. Accordingly, the 180-day waiting period for filing a civil action, absent agency final action, begins with the filing of the initial administrative complaint, regardless of subsequent amendments to that complaint.

Regarding the question whether the waiting period is a jurisdictional bar (a first-impression issue in this circuit), the district court incorrectly held that it was. Instead, the waiting period functions more like a mandatory procedural hurdle for litigants than an affirmative agency step potentially giving rise to a remedy on review. The 180-day waiting period is not jurisdictional.

In this case, the claimant’s amendments of his complaint did not restart the 180-day clock. His waiting period began on the date he filed his “initial,” formal administrative complaint of discrimination and retaliation. Allowing agencies to repeatedly delay individuals’ ability to go to court, simply because they have amended their administrative complaints, would frustrate a congressional policy to make the courts the final tribunal for the resolution of controversies over charges of discrimination after all administrative remedies have been exhausted. This conclusion also comports with the broader purpose of Title VII as a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.

Finally, plaintiffs may bring Title VII claims for the first time before a district court, so long as they are like or reasonably related to charges in the original administrative complaint, and if they reasonably could have developed from the agency’s investigation of the original complaint.

Reversed and remanded.

Oberg v. Pa. Higher Ed. Assistance Agency (P), 4th Cir. (Motz) from EDVA at Alexandria (Hilton).

In this qui tam action against four student loan corporations alleged to have defrauded the Department of Education, the relator contends that the trial court erred in rejecting his proposed instructions to the jury. However, he failed to preserve this argument on appeal.

Under Federal Rule of Civil Procedure 51(d)(1)(B), a party may assign as error a failure to give an instruction, if that party properly requested it and — unless the court rejected the request in a definitive ruling on the record — also properly objected. For a court’s rejection of a proposed instruction to constitute a definitive ruling on the record, the record must simply provide a reviewing court with a sufficient basis from which to determine the district court rejected the substance of the proposed instruction, not merely the litigant’s choice of words. And, to be “definitive,” this rejection must be final, not tentative. Thus, where a litigant proposes an instruction and the district court’s final ruling on the record demonstrates that the court rejected it on the merits, the claim of error is preserved.

Here, however, the relator didn’t preserve his challenge to the district court’s failure to give his proposed jury instructions.At the charge conference, the district court outlined its proposed jury instructions in broad terms, explaining that it would give standard instructions on issues like the burden of proof and reasonable doubt, and would also instruct the jury on the essential elements of an FCA claim. When the district court called for any final comments, the defendant asked whether the court would read any of the relator’s proposed instructions. The court responded that it was “not reading anybody’s instruction[s]” and it had “the areas” it was “going to instruct on.” The relator indicated he had no further objections.

Even assuming that the district court’s statements constituted a final ruling that foreclosed further discussion of the issue, this court cannot discern whether it considered the relator’s proposed instructions and rejected them for their substance, or simply believed that its own instructions were an adequate substitute. To preserve the issue, the relator could have sought clarification as to the basis for rejecting his instructions, or he could have timely objected. He did neither.


Battle v. Ledford (P), 4th Cir. (Motz) from WDVA at Roanoke (Dillon).

The district court erred in concluding that a prisoner’s suit under 42 U.S.C. § 1983, filed after exhausting administrative remedies under the Prison Litigation Reform Act, was time-barred.

Virginia provides an elaborate grievance process for prisoner complaints, but its no-tolling rule as applied to prisoners seeking to bring § 1983 claims frustrates the goals of the federal statute and is thus clearly “inconsistent” with settled federal policy. Congress did not endorse such a no-tolling rule or diminish the interests underlying § 1983 by enacting the PLRA.

Because Virginia’s no-tolling rule is inconsistent with § 1983, a proper remedy in this narrow context involves applying federal equitable tolling principles to account for the time lost during the plaintiff’s 83-day mandatory exhaustion period. The plaintiff showed reasonable diligence during the 83-day exhaustion period, promptly denying the disciplinary charge against him and undergoing two rounds of appeals.

Every circuit that has confronted a state no-tolling rule and reached this question has applied federal law to equitably toll § 1983 limitations during the PLRA exhaustion period.

The plaintiff’s § 1983 complaint is timely, filed within two years of the date he exhausted administrative remedies required by the PLRA.

Vacated and remanded.

South Carolina v. United States (P), 4th Cir. (Wynn) from DSC at Aiken (Childs).

The State of South Carolina failed to establish its standing to bring this action to enjoin the United States and other defendants from terminating the construction of a mixed-oxide fuel nuclear processing facility located at the Savannah River Site in South Carolina.

The only theory of injury advanced by South Carolina — that it will be the permanent repository of the nuclear material currently stored at the Savannah River Site — rests upon a highly attenuated chain of possibilities and contingent future events that may not occur as anticipated, or indeed may not occur at all.

That the State’s claims are not currently justiciable does not mean that they never will be so. If uncertainty as to several links in the chain of possibilities is resolved, then South Carolina’s alleged injury may move from the speculative to the concrete, and therefore the two claims also may become ripe for review. But until that uncertainty is lifted, the Constitution demands that this courts withholds judicial review.

Preliminary injunction vacated.

United States v. Slager (P), 4th Cir. (Wynn) from DSC at Charleston (Norton).

A former police officer who pleaded guilty to killing Walter Scott, unarmed and fleeing, now challenges the district court’s 240-month prison sentence. This court finds the sentence was proper.

The district court did not err in using second-degree murder as the sentencing cross-reference for the offense, rather than voluntary manslaughter. This conclusion was supported by the court’s reasonable credibility determinations and the defendant’s voluntary, intentional, and repeated discharge of his firearm at the victim as he attempted to run away.

The district court also did not err in applying a two-level sentence enhancement for obstruction of justice. Section 3C1.1 of the U.S. Sentencing Guidelines does not clearly answer whether an attempt to significantly obstruct an investigation through unsworn statements warrants the enhancement. Nor has this court’s precedent provided an “obvious” or “clear” answer to that question. In such circumstances, the defendant cannot meet his burden to show that the district court plainly erred by applying the enhancement.


Court of Appeals of Virginia

Kelley v. Commonwealth (P), CAV (Decker) from Loudoun (Sincavage).

Evidence supports the defendant’s convictions for assault and battery under Code § 18.2-57.

The circuit court had the opportunity to evaluate the credibility of the victim’s testimony that the defendant “grabbed [her] face and turned it towards him as [she] was saying no, no, no and leaning back away from him [while he] attempted to kiss [her],” including the possibility of ulterior motive on her part. Because the testimony was neither inherently incredible nor so contrary to human experience as to render it unworthy of belief, the circuit court’s resulting conclusions will not be disturbed.

It was also entirely reasonable for the circuit court to conclude that the defendant intended to act in a rude manner in trying to kiss the victim and grabbing her face. He admittedly realized that she was “uncomfortable” and, after she pulled away, said “[w]e’ll save the kiss for later.” The circuit court likewise did not err in rejecting the defendant’s theory that he touched the victim in a congenial manner in order to convey gratitude.


Pittman v. Commonwealth (P), CAV (Humphreys) from Albemarle (Higgins).

No fiduciary or other special relationship is required to prove embezzlement. It is sufficient as a matter of law to wrongfully and fraudulently use, dispose of, conceal or embezzle any personal property delivered to the defendant by another person.

In the context of Code § 18.2-111, the plain (dictionary) meaning of “deliver” is to “give, transfer, yield possession or control of.” In this case, the record clearly shows that a person “delivered” a vehicle to the defendant for a limited purpose. Thus, no analysis whether that person also “entrusted” the vehicle is necessary. Evidence is sufficient to support both delivery of the personal property and the defendant’s requisite fraudulent intent to convert it to her own use.


Barney v. Commonwealth (P), CAV (Petty) from Hampton (Jones).

The circuit court improperly instructed the defendant’s criminal jury as to the definition of a firearm, so her convictions for use of a firearm during a felony are reversed.

To obtain a conviction for violating Code § 18.2-53.1 the Commonwealth must prove by direct or circumstantial evidence that the defendant possessed either (1) an actual firearm defined as an instrument designed, made, and intended to expel a projectile by means of an explosion, regardless of operability, or (2) an object that gave the appearance of being an actual firearm. Here, the circuit court failed to instruct the jury that possession is a necessary element of the offense.

However, because the defendant’s convictions were supported by sufficient evidence, a new trial is necessary.

Reversed and remanded.

U.S. District Court – Virginia Eastern

Frankel v. United States, EDVA at Norfolk (Davis).

An employee of the U.S. Navy cannot proceed on claims arising from another employee allegedly striking him with her car.

Another judge of this court, in dismissing the plaintiff’s prior suit arising out of the same incident, held that the driver was acting within the scope of her federal employment at the time of the accident. Issue preclusion prevents the plaintiff from re-litigating the scope-of-employment question. Thus, in this case the United States must be substituted as the proper defendant, and Davis has absolute immunity from suit. And sovereign immunity bars the plaintiff’s suit against the United States.

The plaintiff’s separate uninsured-motorist claim also fails, because such a claim under Virginia law cannot proceed until the plaintiff first secures entry of judgment against a tortfeasor. While the Virginia legislature has the power to modify the immunity enjoyed by state actors named in a lawsuit in order to eliminate the resulting remedy gap, the Supremacy Clause prevents Virginia from modifying the scope of the federal government’s sovereign immunity.

This result may seem inequitable. However, unless and until the Virginia legislature modifies the statutory procedure set forth in Va. Code § 38.2-2206(F) to allow a plaintiff to proceed directly against an insurer in similar circumstances, such perceived unfairness cannot be avoided.

Motion to dismiss granted.

Columbia Gas Transmission v. Grove Ave. Dev’rs Inc., EDVA at Norfolk (Davis).

In an easement dispute regarding construction of an asphalt roadway over two gas pipelines, and following a bench trial, the pipelines’ operator is entitled to declaratory relief prohibiting the developer’s planned roadway.

The proposed crossing, if constructed without mitigation measures, would constitute a material encumbrance that unreasonably interferes with the gas company’s lawful right to safely maintain and repair its pipelines, thus rendering its easement less useful and less convenient. The crossing would cause irreparable harm in the form of a material encroachment that threatens physical harm to the pipelines, risks the public safety, and compromises not only the gas company’s ability to repair the damage caused by vehicular traffic, but also compromises its ability to safely transmit an uninterrupted supply of natural gas to the Tidewater region.

Moreover, the gas company’s bargained-for easement rights as the dominant estate holder, as well as the public interest in safeguarding underground high-pressure natural gas transmission lines, vastly outweigh the developer’s interest in saving money.

Motion for injunctive and declaratory relief granted.

Categories: Daily Dockets

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