Docket – April 25, 2019

4th U.S. Circuit Court of Appeals

Bell v. Brockett (P), 4th Cir. (Quattlebaum) from WDNC at Charlotte (Mullen).

This case involves a defendant class action, a litigation “unicorn.” Here, while the district court failed to follow Federal Rule of Civil Procedure 23 its decision is affirmed due to the unique circumstances of this case.

Class counsel was not appointed when the class was certified. During the ensuing seven months before counsel was appointed, the liability phase of the case continued. While events impacting the liability and potential damages of the unnamed class members took place, the class had no attorney owing duties and responsibilities to the class.

However, after receiving notice of the class certification, no class members objected to the absence of class counsel or to the failure of the district court to appoint class counsel at the time of certification. Even when class members finally moved to decertify the case more than two years after the class was certified and almost two years after class counsel was named, they failed to raise such an objection. Likewise, class members did not raise the district court’s failure to apply the Rule 23(g) factors prior to or in their decertification motions. As a result, this litigation has progressed to an extent that it would be difficult if not impossible to remedy the errors that the class members now raise. Over 2,500 class members have resolved the claims against them. These settlements have involved payment of funds by defendant class members and the distribution of funds. The toothpaste cannot be put back into the tube.


United States v. Walker (P), 4th Cir. (King) from SDWV at Charleston (Goodwin).

The district court properly rejected the defendant’s plea agreement, sustained the prosecution’s peremptory strike of an African-American juror before trial, and calculated the defendant’s Sentencing Guidelines range after his convictions for drug and firearms offenses.

In finding the advisory Guidelines range under the proposed plea agreement too lenient, the district court considered the defendant’s criminal history, his potential for violence, and the nature of his offenses. The court emphasized his extensive criminal history and multiple violent activities.This individualized assessment of the defendant’s situation thus relied on appropriate considerations.

In reviewing the jury venire, the prosecutors sought to empanel women jurors who were married, who were older, and who had children. Juror 22 was single, had no children, and, at 38 years old, was younger than average. Those reasons are each facially race-neutral. Because each of the defendant’s proposed comparators on the jury possessed at least two of the three race-neutral characteristics relied on by the prosecutors, the trial court did not clearly err in overruling the defendant’s Batson challenge.

Finally, the second presentence report specifically concluded that the firearm in the defendant’s possession was stolen. Because he has no evidence to cast doubt on that, the district court did not err in applying the stolen firearm enhancement.

Affirmed. Judge Niemeyer wrote a concurring opinion.

U.S. District Court – Virginia Eastern

Sheppard v. Visitors of Va. State Univ., EDVA at Richmond (Hudson).

The plaintiff, a former student at Virginia State University, has failed to state claims for Title IX gender discrimination and due process violations.

This action arises from an altercation between the plaintiff and other students, where plaintiff allegedly sought to retrieve his stolen possessions from another student and inadvertently pushed her when she tried to obstruct him. After she obtained a protective order against him, the University’s Office of Student Conduct initially permitted him to complete courses online but later forced him to withdraw from enrollment.

The plaintiff argues that the University subjected him to unequal treatment because it waited to pursue charges against the other students until almost five months after his own proceedings. But he has not identified similarly situated female students, alleged facts to support the inference that they were treated more favorably than he was, or alleged any facts beyond conclusory allegations that gender was a motivating factor in the time difference between the disciplinary proceedings.

Moreover, the plaintiff’s due process claims cannot proceed because immunity limits the his recovery to injunctive relief and he has failed to allege the deprivation of a protected interest giving rise to a plausible violation.

The contention that a withdrawal notation on the plaintiff’s transcript affects his reputation carries no weight. There are many reasons why a student may withdraw from university courses that don’t involve a negative connotation. Further, while the plaintiff’s attempt to transfer universities allegedly was delayed by the University’s hold on his transcript, that hold was released. The plaintiff offers no basis to find that the hold implicated a protected liberty interest, and in any event no injunctive relief exists to remedy the issue.

Motion to dismiss granted.

Categories: Daily Dockets

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