Docket – January 14, 2019

4th U.S. Circuit Court of Appeals

Appalachian Voices v. St. Water Control Bd. (P), 4th Cir. (Gregory) from FERC.

Pursuant to the Clean Water Act, the Virginia State Water Control Board certified that it had reasonable assurance that activities related to the construction of a natural gas pipeline would not degrade the state’s water resources. Contrary to the petitioners’ arguments, the Board’s certification for upland areas was not arbitrary and capricious.

The Board’s decisions, including re-opening of the comment period, not conducting a combined-effect analysis, and reliance on existing water quality standards in the agency’s reasonable-assurance determination, were made in consideration of relevant factors and do not demonstrate a clear error of judgment.

Petition denied.

Minnieland Private Day Sch. Inc. v. Applied Underwriters Captive Risk Assurance Co. (P), 4th Cir. (Gregory) from EDVA at Alexandria (Trenga).

The parties’ agreement is an insurance contract for purposes of Virginia Code § 38.2–312.

At issue in this appeal is an innovative program of workers’ compensation insurance that offers small and mid-sized employers the benefits of both a guaranteed cost policy and a retrospective rating plan in one insurance program. In this case, the insurer canceled the employer’s policy for non-payment after raising the monthly premium by over 1,000 percent.

Explicit internal references, interrelated terms, and shared subject matter are strong evidence that the parties intended various documents to be part of one integrated transaction. Issuance of the policy was expressly conditioned on the employer’s prior execution of the agreement. The subject matter of the documents is the same. The RPA also discusses the insurance coverage. Because the insurance program was marketed and sold as a package deal, the employer’s failure to execute the agreement would have frustrated the purpose of the transaction.

Construing an affiliate’s policy terms as integrated with those of the agreement, as though the terms of each were written in a single document, it becomes clear that the contract at issue is an “insurance contract” under Virginia law.


United States v. Ross (P), 4th Cir. (Gregory) from DMD at Baltimore (Motz).

The district court failed to explain why it imposed the defendant’s term of confinement and to address his non-frivolous arguments in favor of a lower sentence. These omissions render his sentence procedurally unreasonable.

The district court didn’t address or consider any of the numerous non-frivolous arguments advanced by defense counsel requesting a lower and concurrent sentence. The sentencing court didn’t provide an individualized assessment of important mitigation evidence, as it was required to do, including an assessment regarding the defendant’s mental health. The district court also failed to address the defendant’s history of gainful employment, his role as a caretaker for his aging mother, and the relatively small amount of illicit material found in his computer as mitigating factors when calculating his term of confinement.

The requirement that the district court adequately explain the term of confinement similarly applies to the special conditions of his supervised release. These errors are not harmless. However, this court makes no assessment regarding the fairness or propriety of the defendant’s term of confinement or special conditions of supervised release.

Vacated and remanded.

Categories: Daily Dockets

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