Docket – March 12, 2019

4th U.S. Circuit Court of Appeals

Sanitary Bd. of the City of Charleston, W.V. v. Wheeler (P), 4th Cir. (Wilkinson) from SDWV at Charleston (Goodwin).

The Environmental Protection Agency properly disapproved West Virginia’s revised standard for the receiving waters of the Charleston Sanitary Board’s wastewater treatment facility along the Kanawha River.

The Clean Water Act authorizes the EPA to oversee the intergovernmental efforts to protect our nation’s navigable waters. In that role, the EPA is required to bring its own discretion and expertise to bear on those scientific and technical matters for which it is well-suited. This discretion extends to its review of state water quality standards. Because the EPA had discretion to deny the proposed standard and followed a reasoned and well-documented path to reach its final decision, we must afford its judgment the deference that the law requires.

Through standards of review and court/agency interactions, this case and many others underscore that law and science must work in tandem on environmental issues, not at loggerheads. Indeed, it is that partnership between law and science, as illustrated here, that offers the best hope of avoiding environmental disruptions that may one day visit serious adverse consequences upon us all.


United States v. Whyte (P), 4th Cir. (Agee) from WDVA at Danville (Kiser).

A jury convicted the defendant-appellant of several fraud offenses, with parallel False Claims Act proceedings, arising from his failure to provide multinational forces in Iraq with contracted-for armored vehicles.

First, the criminal prosecution was not collaterally estopped by the prior False Claims action because the government is not a party to a False Claims action in which it has declined to intervene. Here, the district court correctly concluded that the government cannot be considered to have been a party to the False Claims suit — with a full and fair opportunity to litigate the matter — for collateral estoppel purposes as it relates to this criminal proceeding. The district court properly declined to dismiss the indictment on this basis.

Second, the indictment properly charged the essential elements of the offense, and the evidence was sufficient to support the convictions, even if the contract at issue was ultimately with the multilateral MNF-I rather than the government. Evidence at trial was sufficient to establish the status of the government under the contract because the defendant’s company contracted with and defrauded the U.S. Department of Defense.


Court of Appeals of Virginia

Lambert v. Commonwealth (P), CAV (O’Brien) from Russell (Moore).

Trial evidence supported the jury’s conclusion that the defendant-appellant had driven his vehicle under the influence of self-administered drugs.

Evidence established that the appellant had methadone, alprazolam, and nordiazepam in his blood at the time it was drawn. He admitted to a law enforcement officer that he’d received a dose of methadone at a treatment clinic just before the accident, but the record contains no direct evidence of how he obtained the dose. Still, the factfinder was entitled to conclude that the appellant had taken the drugs and initially lied about not consuming them to conceal his guilt.

The appellant’s initial false statement, the observations of witnesses and medical personnel of appellant’s physical condition, and the lack of evidence that he consumed anything after the accident also support the factfinder’s conclusion that appellant was driving under the influence of self-administered


Mendez v. Commonwealth (U), CAV (Russell) from Albemarle (Hughes).

Under Code § 18.2-460(C), the felony obstruction-of-justice statute, a threat that constitutes attempted obstruction must have a direct relationship to an enumerated felony. The General Assembly has determined that threatening certain public officials as they attempt to perform their official duties is more egregious than the average threat because the threat is made not only against the individual but the office he or she holds as a representative of the people as sovereign. But concluding that a particular action is vile, abhorrent, and criminal doesn’t compel the conclusion that the activity violates a specific statute.

Here, the defendant’s obstruction convictions arose from his efforts to obtain a U-visa with the help of a deputy commonwealth’s attorney. When she told him she couldn’t assist him in obtaining the visa, he continued to visit her office and left profane messages for her that included threats to her and her family. Although she subsequently required a regular security escort, none of the defendant’s threats made in 2016 obstructed or impeded anyone in earlier prosecutions, nor could they have. To find otherwise leaves the scope of § 18.2-460(C) open to prosecutorial creativity, and the resulting variation runs afoul of the principle that an accused cannot be punished unless his or her case falls plainly and unmistakably within the statute.

Reversed and remanded.

U.S. District Court – Virginia Eastern

Waste Mgm’t Inc. v. Great Divide Ins. Co., EDVA at Richmond (Lauck).

Waste Management’s insurer has no duty to defend the company in underlying litigation brought by a commercial garbage truck driver who suffered an accident at a WM landfill. The injured driver was employed by another company and didn’t, and likely couldn’t, seek to hold WM vicariously liable for negligence by his own employer in the underlying litigation.

Motion for summary judgment granted.

U.S. District Court – Virginia Western

Wubneh v. Hutchinson, WDVA at Roanoke (Kiser).

Genuine issues of material fact remain as to whether a former Virginia Department of Corrections employee violated the Eighth Amendment rights of the plaintiff, an inmate. The defendant’s affidavit claims that he didn’t assault or use excessive force against the plaintiff, and he corroborates his version of events with the investigator’s affidavit and investigatory report. However, the plaintiff’s affidavit claims that the defendant yelled at him threateningly and then deliberately slammed his hand in a tray slot. Affidavits from fellow inmates at least partly corroborate the plaintiff’s version. Moreover, the defendant and plaintiff have conflicting accounts of whether the plaintiff was violating any prison rules or acting disruptively.

The defendant points to medical evidence that the plaintiff suffered little to no injury as a result of the alleged incident. This evidence is expressly contradicted in the record by the plaintiff’s statement that his hand was injured by the defendant’s actions. The investigator mentions that the plaintiff was in a sling at the time of his interview. The plaintiff is not required to show significant injury to establish a claim for excessive force.

Motions for summary judgment denied.

Categories: Daily Dockets

%d bloggers like this: