Docket – January 16, 2019

4th U.S. Circuit Court of Appeals

City of New York v. U.S. Dep’t of Defense (P), 4th Cir. (Wilkinson) from EDVA at Alexandria (Hilton).

Three municipalities who use the National Instant Criminal Background Check System to carry out their obligations under state law lacked standing to compel the Department of Defense and its constituent military departments to comply more thoroughly with the System’s requirements.

The Department of Defense has long struggled to comply with the System’s affirmative reporting provision. But since the mass shooting at Sutherland Springs, Texas, components of the Department have taken a wide range of actions to correct their deficiencies. Efforts include the creation of new task forces and compliance plans, as well as the development of new technological processes to streamline reporting.

The municipalities’ challenge is not about System access; it is instead about the quality of the information in that System. Each appellant accesses the System frequently to carry out their obligations under state law. The municipalities see their existing access to the System as an invitation to compel any federal inter-agency legal requirement that may affect the quality of the information they receive. Courts are woefully ill-suited to adjudicate generalized grievances asking us to improve an agency’s performance or operations.

The municipal appellants’ claim does not challenge a discrete agency action. Moreover, the municipal appellants have failed to demonstrate that the Department’s reporting requirements in any way determine their rights and obligations. The court need not say here that information sharing can never constitute agency action. We simply note that claims to compel an agency to provide information are held to the same standard as any other. What the municipal appellants are ultimately asking for is a judicial decree making the assistance of the federal government more useful to them than it is now.  But they point to no case suggesting that the Administrative Procedures Act countenances such an action. And for good reason.


Bennett v. Garner (P), 4th Cir. (Keenan) from EDVA at Alexandria (Hilton).

Contrary to the district court’s holding, the appellant’s claims against his former employer were not precluded under Virginia’s doctrine of res judicata. Seeking to collect on a state-court judgment, he couldn’t have brought the claims at the time of his earlier litigation.

The appellant’s claims are brought solely in execution of his state court judgment. Instead of seeking to re-litigate the defendants’ liability under the parties’ agreement, the appellant argues that his fraudulent transfer claims were an attempt to collect on the judgment he is owed and couldn’t have been brought before the judgment was entered. The appellant need not be clairvoyant enough to amend his original complaint whenever he suspected that the defendant was moving money to avoid paying a potential judgment. He was not required to try to enforce his judgment before the judgment was awarded.

With respect to his alter-ego claim, the appellant similarly could not have maintained that claim before obtaining the judgment against the employer.

Vacated and remanded.

U.S. District Courts – Virginia Eastern

Freeman v. Curtis Bay Med. Waste Servs. LLC, EDVA at Richmond (Lauck).

In this personal injury suit, the plaintiff alleges he was injured by a boiler explosion at the defendant’s medical waste site while sitting at a traffic light nearby. The plant manager, who shares Virginia citizenship with the plaintiff, was not fraudulently joined. The complaint alleges facts that plausibly tie the plant manager to the explosion that caused the plaintiff’s injuries. Therefore, diversity jurisdiction does not exist, and removal was improper.

Motion to remand granted. The court declines to award attorneys’ fees.

United States v. Horma, EDVA at Richmond (Lauck).

Contrary to the defendant’s contentions, 18 U.S.C. 922(n) is not an unconstitutional violation of his Second Amendment right to keep a firearm for self-defense. The Fourth Circuit has held that the Second Amendment does not apply to “illegal” aliens, and the record establishes that the defendant presents as such; he worked without authorization and is unlawfully present in the United States.

Motion to dismiss indictment denied.

Categories: Daily Dockets

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