Docket – April 9, 2019

NOTE: There are no new case summaries for April 10, 2019.

4th U.S. Circuit Court of Appeals

McCaffrey v. Chapman (P), 4th Cir. (Quattlebaum) from EDVA at Alexandria (Trenga).

Under the Elrod-Branti exception to First Amendment protection, the district court properly dismissed a Loudoun County deputy sheriff’s claims against the sheriff, who declined to reappoint the deputy for supporting the sheriff’s political opponent.

The court’s prior precedent provides that the sheriff has a duty to carry out the policies the voters approved in the election. The complaint indicates that the plaintiff’s duties and responsibilities as a sworn deputy sheriff involved carrying out the sheriff’s policies and priorities.

A sworn deputy sheriff like the plaintiff has a special role in carrying out the law enforcement policies, goals, and priorities on which the sheriff campaigned and prevailed. He was entitled to carry out the policies on which he ran and won with deputies who didn’t oppose his re-election.

The complaint here illustrates the rationale behind the Elrod-Branti exception. An entire section reads as a political attack ad against the sheriff, attacking his character by accusing him of questionable fund raising, expenditures, and hiring practices; abusive and malicious treatment of employees; and unprofessional conduct. Requiring a sheriff to employ deputies who have displayed the level of hostility portrayed in this complaint could reasonably impede a sheriff’s obligation to his electorate to implement the platform on which he campaigned. This does not mean that law enforcement responsibilities are or should be handled in a political manner. The court’s decision is based on the reality that sheriffs do and should carry out the policies, goals, and priorities on which they ran.

In addition, Virginia law concerning the roles of sheriffs and their deputies confirms that deputies performing law enforcement functions have a policymaking role. In Virginia, a sheriff may appoint deputies to “discharge any of the official duties of their principal during his continuance in office,” and “any such deputy may be removed from office by his principal.” A sheriff in Virginia is also civilly and criminally liable for his deputy’s acts.

Accordingly, the sheriff’s decision not to re-appoint the deputy didn’t violate the deputy’s First Amendment right to freedom of political association, or to freedom of speech under the Pickering-Connick doctrine.

Affirmed 2-1. Judge King dissented.

Court of Appeals of Virginia

MPS Healthcare Inc. v. Dep’t of Med. Assistance Servs. (P), CAV (Chafin) from City of Richmond (Balfour).

Criminal background check results may be provided to the Department of Medical Assistance Services for audit purposes.

Here, the Department’s director found that MPS Healthcare Inc. must reimburse the agency for an overpayment of $63,972, based on failure to maintain adequate documentation of criminal background checks. MPS maintains that, pursuant to Code § 19.2-389, the criminal background check results for nurses who were part of the audit could not be released to the Department. But when Code § 19.2-389 is read in conjunction with Code § 32.1-162.9:1 and 12 VAC 30-120-1730(A)(5), MPS was clearly required to procure background checks for its employees within 30 days of hiring and document the criminal record checks performed in compliance with Code § 32.1-162.9:1. MPS was also required to provide such documentation to  the Department upon request.

The legislature intended agencies to be given access to the results of criminal background check results for employment purposes. To ensure that Medicaid providers are complying with regulatory and statutory requirements of performing criminal background checks on all employees, the Department’s auditors should be given access to the results of the checks.

MPS shall reimburse the Department in the overpayment amount of $63,972.


Guan v. Ran (P), CAV (panel) from Alexandria.

The court lacks jurisdiction to review an injunction that is not effective due to the movant’s failure to post a bond.

Here, the order granting a temporary injunction is part of a complex litigation involving the parties’ divorce and the effect of an amended property settlement agreement on the ownership rights and management responsibilities for their company. Once the injunction becomes effective, the wife’s personal, pecuniary, or property rights in the company will be adversely affected. At that point, she will qualify as an aggrieved party for purposes of this court’s review of the injunction order.

But the injunction is not yet effective because the husband has not given bond with security in an amount that the trial court considers proper to pay the costs and damages sustained by the wife, if it turns out that she was improperly enjoined. It appears that the trial court has not yet determined what the appropriate amount of bond will be. Until the husband gives bond with security, the wife is not yet enjoined from any action and is not an aggrieved party for purposes of review.

Because the temporary injunction has not yet taken effect and there is not yet an aggrieved party enjoined by such temporary injunction, this court does not yet have jurisdiction to review the merits of the order.

Petition for review dismissed.

Categories: Daily Dockets

%d bloggers like this: