Docket – February 1, 2019

4th U.S. Circuit Court of Appeals

Cruz-Quintanilla v. Whitaker (P), 4th Cir. (Harris) from BIA.

In reviewing the petitioner’s request for withholding of removal under the Convention Against Torture, the Board of Immigration Appeals applied the wrong standard to the question whether the petitioner’s native government will acquiesce in his torture.

Since 2002, the Board reviews findings of fact and credibility determinations only for clear error. With respect to mixed questions of law and fact, the Board must defer to an immigration judge’s factual findings but retain its independent judgment and discretion regarding application of the standard of law to those facts.

Whether the petitioner has established that the government would acquiesce in his torture is a mixed question of law and fact. The “acquiescence” element first requires an essentially factual prediction as to what would likely happen upon removal – here, a factual finding or findings as to how public officials will likely act in response to the harm the petitioner fears.

The immigration judge in this case was required to decide whether “how public officials will likely act” qualifies as “acquiescence” under the relevant regulations. As the 3rd Circuit concluded, that determination amounts to a legal judgment that must be reviewed by the Board de novo. Here, the Board reviewed the immigration judge’s acquiescence determination only for clear error.

Petition granted in part and remanded for review under the correct standard.

U.S. District Court – Virginia Eastern

Kirchgessner v. James River Air Conditioning Co., EDVA at Richmond (Gibney).

In this false-claims action, the relator is entitled to attorneys’ fees and costs in the amount of $110,735.

The government and the defendant reached a settlement of the claims, and the relator is entitled to reasonable attorneys’ fees. Contrary to the relator’s argument, the “Laffey Matrix” for attorneys’ rates in the Washington D.C. area is irrelevant to the Richmond area, where rates are considerably lower. D.C. counsel wasn’t necessary in this case, so the court reduces their rates by 20 percent for a reasonable figure in Richmond.

Relator’s counsel also spent too much time on this case, so the court will also reduce the number of hours by 25 percent. The court also will not award fees for briefing on whether the relator was entitled to fees, which was not in dispute.

Motion for fees and costs granted in part.

White v. Va. Bd. for People with Disabilities, EDVA at Richmond (Gibney).

The plaintiff has stated plausible claims under the ADA that her employer, the Virginia Board for People with Disabilities, retaliated against her for advocating for people with disabilities.

The plaintiff, who worked for the Board since 2007, has cerebral palsy. She says that the defendants promoted a less qualified person without a disability, even thought the plaintiff received positive performance evaluations. She also alleges that, on multiple occasions, the defendants unfairly scrutinized, criticized, and micromanaged her. These allegations sustain the plaintiff’s failure-to-promote and wrongful-termination claims under the ADA.

Her retaliation claim is supported by the close temporal relationship between her firing and her criticism of small fonts on Board documents and a liability waiver to be signed by people with disabilities.

Motion to dismiss granted in part and denied in part.

Robertson v. Sch. Bd. of the City of Richmond, Va., EDVA at Richmond (Gibney).

The plaintiff, a teacher’s assistant, has plausibly stated Fourth Amendment claims based on his alleged unreasonable seizure by Richmond Public Schools safety officers.

Based on reports that the plaintiff smelled like alcohol, school administrators detained him in their office and ordered him to report to a private drug-testing facility to determine his blood alcohol content. They also told him he was required to be escorted by school safety officers. His BAC was 0.0, and he tested negative for all other drugs tested.

Allegations that the school’s “protocol” permits its safety officers to detain employees and subject them to blood alcohol testing based on scant evidence of misconduct allow the court to draw a reasonable inference that there may have been other instances of unconstitutional conduct by school officials. Therefore, the plaintiff states a plausible claim based on custom or usage with the force of law.

The plaintiff also alleges that the school provided no training safety officers on constitutional limitations, despite have a drug-testing detention “protocol.” A sufficient causal link exists between the failure to train and the alleged constitutional violation to support liability based on the School Board’s own failure to train, rather than the personal choices of the officers.

Motion to dismiss denied in part and granted in part.



Categories: Daily Dockets

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