Docket – January 29, 2019

4th U.S. Circuit Court of Appeals

McClure v. Ports (P), 4th Cir. (Motz) from DMD at Baltimore (Garbis).

The plaintiff and the public-sector union he represents asserted First and Fourteenth Amendment claims to reinstate special-access privileges to restricted Maryland Transit Administration property, after state officials allegedly limited those privileges in retaliation for the plaintiff’s criticism of the transit administration. The district court properly entered summary judgment for transportation officials.

The plaintiffs undoubtedly have an interest in accessing transit property, but they’ve never been entitled to uninhibited access. Keycard access to restricted spaces was extended as a purely discretionary courtesy. When the plaintiff upset a transit employee by criticizing her work, the transit administration revoked this discretionary courtesy and further asked the plaintiff to seek permission before attending hearings where that same employee might be in attendance. The administration has a critical interest in managing its employees’ work environment, and the union is still free to represent its members offsite or seek permission for onsite access. As such, the effect of the new access policies is not sufficiently adverse to support a First Amendment retaliation action.

At the time he was removed by police, the plaintiff’s lawful purpose for being onsite didn’t give him carte blanche to access restricted transit administration offices, especially since he’d explicitly been barred from being there without permission. When he refused to leave when asked, a reasonable person considering the totality of circumstances would conclude that there was probable cause to believe the plaintiff had violated the law.


Perez v. Cissna (P), 4th Cir. (Quattlebaum) from WDNC at Charlotte (Conrad).

As the district court concluded, a temporary ex parte emergency order for the plaintiff’s application for juvenile lawful permanent residency under 8 U.S.C. § 1101(a)(27)(J) was not a predicate state court custody order for purposes of the statute. Therefore, the plaintiff, who entered the U.S. unlawfully at age 16, was not entitled to the special-immigrant-juvenile process.

U.S. Citizen & Immigration Services didn’t impose an ultra vires requirement for permanent rather than temporary custody orders within the special-immigrant-juvenile application process. Its decision wasn’t a categorical rejection of temporary orders and focused more on the terms reflecting the order’s ex parte and emergency nature. The agency decisions don’t offend federalism principles. All that happened here is that the plaintiff sought a federal benefit in applying for special-immigrant-juvenile status, and the agency charged with determining whether he qualified reviewed the pertinent state court order.

Finally, the Full Faith and Credit Act is inapplicable under the facts presented in this case.

Affirmed 2-1. judge King wrote a dissenting opinion.

Court of Appeals of Virginia

Fleischer v. Commonwealth (P), CAV (O’Brien) from Franklin (Perdue).

After the defendant’s conviction for felony unauthorized use of a motor vehicle, the circuit court didn’t abuse its discretion in ordering her to pay restitution in the amount necessary to replace the involved vehicles’ locks and cylinders, and to reprogram one car’s computer.

By unlawfully taking the victim’s vehicle and its contents, the defendant compromised the victim’s ability to protect her vehicles from unwanted intrusion. She abandoned the car, unlocked. Although the vehicle was recovered and returned to the victim, both sets of keys were missing. As a result, the locks on both cars no longer still functioned to limit access. And the court ordered restitution only for the cost of restoring a pre-existing security system rendered ineffective by the defendant’s criminal conduct.

Therefore, requiring the defendant to pay for changing the locks is not too remote or attenuated from the crime to establish an abuse of discretion. These costs were for losses directly caused by her criminal offense and did not go beyond making the victim whole.


Roanoke Ambulatory Surgery Ctr. v. Bimbo Bakeries USA Inc. (P), CAV (Beales) from VWCC.

When does the statute of limitations bar a health care provider from submitting a claim to the Workers’ Compensation Commission contesting the sufficiency of payment for health care services rendered to a claimant pursuant to Code § 65.2-605.1?

If the employer denied or contested payment for any portion of the health care services, the health care provider may file a claim with the commission within one year of the date on which the relevant medical award becomes final. Code § 65.2-605.1(F)(ii) applies here because the insured employer, by its express statement objecting to further payment, did deny or contest payment for any portion of the health care service provided, and the health care provider filed its claim within one year of the commission’s award to the injured claimant.

Reversed and remanded for entry of an award of $27,281.09 for the balance of the health care provider’s unpaid charges, in addition to interest at the judgment rate.

Categories: Daily Dockets

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