Virginia’s Top 5 Civil Opinions of February 2019

Robertson v. Sch. Bd. of the City of Richmond, Va., Feb. 1, 2019. 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. BV v. U.S. PTO (P), Feb. 4, 2019. 4th Cir. (Duncan) from EDVA at Alexandria (Brinkema).

The district court did not err in concluding that BOOKING.COM is a protectable mark. The U.S. Patent & Trade Office failed to satisfy its burden of proving that the relevant public understood BOOKING.COM, taken as a whole, to refer to general online hotel reservation services rather than the company.

If the mark is descriptive, it is protectable. Adding the top-level domain “.com” to a generic second-level domain like “booking” can yield a non-generic mark, consistent with the district court’s finding this case.

However, the court will not disturb the district court’s grant of the USPTO’s attorneys fees under 15 U.S.C. § 1071(b)(3), in the amount of $76,874. The American Rule’s requirement that Congress “clearly and directly” express an intent to deviate from that rule may apply to § 1071(b)(3) – a statute that, if read to include attorneys fees, anomalously requires an appealing party to pay the prorated salaries of government attorneys. Nonetheless, Shammas v. Focarino – which interpreted the statute to be independent of the American Rule – remains the law in this circuit, so must pay for all the expenses of the proceeding below.

Affirmed. Judge Wynn concurred in part and dissented in part.

King v. DTH Contract Servs. Inc. (P), Feb. 5, 2019. CAV (Huff) from Va. WCC.

A random attack on a workers’ compensation claimant by someone the claimant knows is compensable if the employment generates a risk of assault to the claimant. Thus, a claimant may prove an assault arose out of his employment if he can prove the job subjected him to greater risk of assault—even if he knew his assailant—as long as no evidence suggests the motivation for the assault was personal.

Here, for reasons that were never determined, a former co-worker stabbed the appellant in the face while he was working alone as the overnight attendant at a rest area for the appellee-employer. The Workers’ Compensation Claimant erred in denying him benefits on grounds that the attack was not random because the victim knew the assailant. When an assailant’s motive is unknown, he can still prove the assault arose out of his employment if the employment placed him at a greater risk of assaults than the general public.

Reversed and remanded.

Roe v. Shanahan, Feb. 15, 2019. 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.

Mercer v. MacKinnon (P), Feb. 21, 2019. SCV (McCullough) from Loudoun (Sincavage).

The circuit court properly dismissed this case for lack of personal jurisdiction. Although the court has not previously construed the phrase “persistent course of conduct,” persuasive authority from other courts sheds some light on the scope and duration of the conduct that is necessary to justify the assertion of personal jurisdiction over a litigant.

Here, the defendant’s pre-litigation contact with Virginia consisted of traveling to Virginia, having certain legal documents drawn up, and returning with her aunt to Canada. Her other contact with Virginia was for the limited purpose of litigating a single case. These contacts with Virginia didn’t exist for a long or longer than usual time or continuously, and they weren’t enduring or lingering. The contacts were instead a limited, discrete quantum of activity. Thus, the defendant’s activities were not sufficient in scope and duration to constitute a persistent course of conduct under Code § 8.01-328.1(A)(4).


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