Docket – April 15, 2019

4th U.S. Circuit Court of Appeals

Brandon v. Guilford Cty. Bd. of Elections (P), 4th Cir. (Niemeyer) from MDNC at Greensboro (Eagles).

The district court erred in denying a fee award to eight voting citizens of Greensboro, North Carolina, who successfully challenged their county’s redrawing of Greensboro city council districts. The district court found that the defendant, the Guilford County Board of Elections, was an “innocent” party that had no hand in enacting the redistricting law and didn’t defend it during litigation.

But civil rights fee-shifting statutes aren’t meant to punish defendants; they’re meant to enable potential plaintiffs to obtain the assistance of competent counsel in vindicating their rights. Enabling civil rights plaintiffs to have access to courts to enjoin enforcement of unconstitutional laws furthers the national policy of facilitating the redress of civil rights grievances — irrespective of whether the party enjoined was responsible for enacting the law at issue.

Moreover, because the Board was the government department charged with enforcement of the redistricting law, its concerns about responsibility are ultimately about how North Carolina has chosen to structure its enforcement apparatus. As the instrumentality charged with the enforcement of the challenged law, the Board was the only necessary defendant and the only entity “legally responsible for relief on the merits.”

Thus, the district court abused its narrowly circumscribed discretion in holding that “special circumstances” existed in this case to justify denying fees ordinarily awarded.

Reversed and remanded for determination of an appropriate fee award. Judge Richardson dissented.

U.S. District Court – Virginia Eastern

Acosta v. At Home Personal Care Servs. LLC, EDVA at Alexandria (Brinkema).

Based on evidence presented in a bench trial in this FLSA enforcement action, the defendants are jointly and severally liable for $128,446 in back pay and liquidated damages. This litigation stems from a dramatic shift in the treatment of third-party providers of home care services, articulated in amended regulations effective in 2015.

Here, the defendants concede that all but five of 44 personal-care aides worked at least some overtime for which they were not compensated at a time-and-a-half rate. Contrary to the defendants’ arguments, each o f the six factors under the “economic realities” test weighs in favor of finding that the contested aides were “employees” subject to the FLSA’s protections.

That an industry is heavily regulated does not mean that those working in the industry are not “employees.” Medicare and Medicaid may place a ceiling on how much the defendant may be compensated for the services performed by aides, but the defendant still determines each aide’s pay rate based not only on that ceiling but also on the company’s other costs. Similarly, Medicare and Medicaid may determine a patient’s eligibility for services and hours, but the employer trains its aides as to how to perform those services and goes to great lengths to ensure that they provide those services and work within the allotted hours.

The contested aides are also employees even if they care primarily or only for their own family members. Whatever feelings of love or obligation may have motivated the aides at issue to care for elderly or disabled family members, they also decided to enter into a mutually beneficial, compensated arrangement with the defendant. The defendant profited by billing for the services those aides provided and, as a side benefit, their patients reaped the benefits of obtaining care through a professionalized company from a loved one rather than a stranger.

The defendants were generally aware of the FLSA and made some effort to abide by its requirements. However, the company owner had reason to doubt her conclusion that the aides at issue could properly be considered independent contractors. Many of the sources of information on which she relied were ambiguous at best. And the Virginia Workers’ Compensation Commission advised her that it was difficult to determine whether the aides were employees or independent contractors and that it would be safer to secure workers’ compensation coverage for all aides. Yet she didn’t consult an attorney or the Department of Labor.

In short, the defendant was neither willfully ignorant nor reasonably diligent as to finding out what the law required, so the statutory default of liquidated damages equal to backpay is appropriate. As the sole owner and president, the company owner clearly qualifies as an equally liable employer. She exercised substantial control over the policies, job responsibilities, and day-to-day functioning of the aides at issue, and her name and signature appear all over the personnel records as the aides’ “supervisor.” She was intimately involved in decisions to hire, fire, and discipline aides.

The Department has demonstrated that defendants failed to maintain appropriate records. However, injunctive relief is not warranted here. Once the Department began investigating, the defendant company reclassified all aides as employees and immediately began treating them as such.

Judgment granted for the plaintiff.

Virginia Circuit Courts

Myer v. All Dulles Area Muslim Society, Fairfax (Poston).

The court will dismiss the plaintiff’s fourth amendment complaint and impose a pre-filing injunction against him.

The complaint is filled entirely with conclusory language unfounded in fact or law. The plaintiff asserts he is an owner of Defendant All Dulles Area Muslim Society (ADAMS) Center but has no good-faith basis to make such a claim. The ADAMS Center Articles of Incorporation provide that no earnings or property may inure to the benefit of any member or other private individual. Seven of the individual defendants, sued for tax violations related to the ADAMS Center’s status, have never served as an officer or director of the organization. The plaintiff has also repeatedly used insulting language, asserted baseless accusations of racism and corruption, and raised frivolous claims and appeals.

The plaintiff has a long history of litigation. He has 12 pending or recent lawsuits in this court alone, and he’s noted appeals in six of those cases, including this one. A federal lawsuit involves essentially the same claims as in this case and names not only these defendants but also several judges of this court.

These cases have become such a burden on this court that the Supreme Court of Virginia had to step in and recuse all 15 judges of the bench and appoint a judge designate. The undersigned judge has had to schedule five hearings in this case to hear baseless and frivolous motions, many of which have already been heard by him or other judges. Any time a judge rules against the plaintiff, he brings further harassing litigation. He has alleged a conspiracy between the undersigned judge and defense counsel and filed numerous motions filled only with vitriolic language directed at defense counsel. Because the plaintiff is indigent, monetary sanctions will be ineffective in preventing future improper behavior.

Motion to dismiss granted.

Bobby Lewis Acres v. Serco Inc., Fairfax (Mann).

Genuine issues of material fact preclude summary judgment for either moving party in this dispute between a government contractor and 21 of its former employees.

The employees allege that the defendant failed to pay them certain hardship and danger pay “uplifts” while they worked as government contractors in Afghanistan. The terms of the plaintiffs’ employment are governed by their respective offer letters and letters of assignment.

The offer letter and letter of assignment both refer to the “hardship” uplift but define it in conflicting ways. The plaintiffs argue that the Department of State’s Standardized Regulations have been incorporated into the contract through use of the phrase “as designated by the Department of State” in the offer letters and that those regulations lists the “hardship” differential for placement in Afghanistan as 35 percent. The defendant argues that the regulations were not incorporated and do not impose a mandatory amount even if they were.

Because the parties understand the same writing in different, yet not unreasonable ways, the contract terms are ambiguous. Therefore, the disputed issues are more appropriately determined by the trier of fact.

Motion for summary judgment denied.

Categories: Daily Dockets

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