Docket – February 15, 2019

NOTE: Evening Docket will be on hiatus on February 18, 2019 in honor of Presidents’ Day.

4th U.S. Circuit Court of Appeals

Norfolk So. Ry. Co. v. City of Roanoke (P), 4th Cir. (Diaz) from WDVA at Roanoke (Conrad).

In this discriminatory taxation, the district court properly concluded that the City of Roanoke’s stormwater management charge is a fee, rather than a tax. This distinction matters because only taxes are subject to challenge under the Railroad Revitalization and Regulatory Reform Act of 1976.

A charge is more likely to be a tax if it’s imposed by a legislative body, like Roanoke’s City Council, rather than an administrative agency. A charge is also more likely to be a tax if its primary purpose is to raise revenue for general government activity that benefits the entire community. Here, the charge’s purpose is more consistent with that of a fee than a tax, because the charge forms part of a comprehensive regulatory scheme. Although municipalities may have traditionally provided stormwater management as a public benefit at the discretion of their legislatures, the Clean Water Act’s regulatory scheme now requires the City to take myriad concrete actions to reduce discharges and pollutant concentrations — many of them relating directly to runoff from the appellant’s property and the waters that receive it.

A classic regulatory fee is designed to address harmful impacts of otherwise permissible activities, and to ensure that the actors responsible for those impacts bear the costs of addressing them. That is exactly the function served by Roanoke’s stormwater management charge, which ensures that owners of impervious surfaces bear the cost of managing stormwater runoff.

In sum, the charge is part of a regulatory scheme, rooted in the Clean Water Act, whose purpose is to remedy the environmental harms associated with stormwater runoff and to hold stormwater dischargers responsible for footing the bill. EPA’s regulations ensure that the harms of stormwater discharge are addressed, and the City levies a charge (as directed by the state) upon those whose activity creates the need for regulation. The charge also serves the regulatory function of incentivizing property owners to reduce the amount of impervious surface on their land and engage in stormwater management practices that qualify them for credits.

The third factor has controlling weight here because the charge’s regulatory purpose provides a better indication of its overall nature than the body that implemented it or the class of persons it is levied upon.


U.S. District Court – Virginia Eastern

Roe v. Shanahan, EDVA at Alexandria (Brinkema).

The plaintiffs have made a strong preliminary showing that the U.S. Air Force’s approach to servicemembers living with HIV is irrational, inconsistent, and at variance with modem science.

The plaintiffs are Air Force members who have been diagnosed with HIV. They allege that the military defendants’ policies with respect to the deployment and separation of HIV-positive servicemembers, on their face and as applied, violate the Equal Protection Clause. The plaintiffs also allege that the decisions to separate the plaintiffs from the Air Force were arbitrary and capricious, an abuse of discretion, and contrary to law. Finally, they allege that the defendants’ policies are based on outdated thinking that does not comport with the current state of HIV medical science, constituting an independent violation of the Administrative Procedure Act.

The Air Force’s discharge determinations were entirely dependent on the antecedent findings that the plaintiffs were subject to deployment restrictions based on the rationale that their condition makes them ineligible for deployment to an area of operation where servicemembers of their rank and responsibilities are frequently deployed. This categorical rule fails to pass muster under even the most deferential form of scrutiny. HIV, while incurable, is no longer a progressive, terminal illness. There appears to be no reason why asymptomatic HIV is singled out for treatment so different from that given to other chronic conditions, all of which are subject to worsening upon disruption of daily medication.

The process to which the plaintiffs were subjected does not comport with even the minimal requirements of the APA. Along with other similarly situated HIV-positive servicemembers, the plaintiffs face a particularly heinous brand of discharge, one based on an irrational application of outmoded policies related to a disease surrounding which there is widespread fear, hostility, and misinformation. In their cases, the stigma o f being removed from active duty and being labeled as unfit for service is coupled with the indignity suffered because the reason for their discharges bears no relationship to their ability to perform their] jobs. It is further compounded by the stigma and discrimination facing those living with HIV and the commonsense observation that HIV-positive servicemembers, if discharged under these circumstances, will likely be forced to reveal their condition. This is precisely the type of harm that back pay or reinstatement cannot remedy and for which status quo-preserving preliminary relief is designed.

The equities weigh heavily in plaintiffs’ favor, as does the public interest. The public benefits from the security provided by military departments populated with individuals dedicated to the notion of service. The plaintiffs have carried out their responsibilities in a creditable manner, earning the trust of their commanding officers and fellow servicemembers.

This case deals with national institutions, national policies, and national interests; the appropriate scope of relief should be national as well. Servicemembers who enlist in the Air Force serve the country at large, and there are no relevant regional or localized facts that would counsel in favor of limiting the scope of the injunction to the named plaintiffs.

Motion to dismiss denied; motion for preliminary injunction granted in part.

Virginia Circuit Courts

AV Automotive LLC v. Preske, Fairfax (Gardiner).

In this action for fraud, defamation, and business conspiracy, the plaintiffs have failed to state a claim on which the court can grant relief. The plaintiffs failed to allege, among other things, that the defendant knew the plaintiff was acting on the assumption that customer surveys were legitimate; that the defendant misrepresented a present fact; and that the defendants made or published a false factual statement; that the defendants associated in a mutual undertaking for the purpose of willfully and maliciously injuring the plaintiffs.

Demurrer sustained.

Categories: Daily Dockets

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