Category Archives: Appellate

SCOTUS Vacates 4th Circuit Decision on Trump Immigration Order

Readers of the EDVA Update have followed our coverage of the challenges to President Trump’s multiple immigration Executive Orders, including challenges starting in both the Eastern District of Virginia and the District of Maryland.  While President  Trump received an initial loss and then a qualified win in the Eastern District, he did not fare so well in Maryland, leading to the Fourth Circuit case of International Refugee Assistance Project v. Trump.  In an en banc decision, the Fourth Circuit pulled no punches, handing a sharp loss to the President in a controversial decision.  The U.S. Supreme Court, however, has recently vacated the Fourth Circuit’s decision, effectively dismissing the case on mootness grounds.  As a legal matter, this wipes out the Fourth Circuit’s and lower court decisions in the case.

The Supreme Court acted after calling for letter briefs from both the Government and the ACLU on whether the case still presented a live controversy after President Trump issued a new Executive Order on September 24th superseding the previously-challenged order.  On October 10th, the Court sided with the Government and vacated the Fourth Circuit’s decision via an anti-climatic, short paragraph:

We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780. Because that provision of the Order expired by its own terms on September 24, 2017, the appeal no longer presents a live case or controversy. Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. We express no view on the merits. Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

This ends the current litigation originating from the Fourth Circuit.  Yet, a new suit challenging the September 24th Executive Order was filed in the District of Maryland on behalf of the Council on American-Islamic Relations and six other plaintiffs.  It remains to be seen how far this case advances in the Fourth Circuit.

While the Supreme Court has halted the case coming out of the Fourth Circuit, it did not end a similar challenge originating out of Hawaii.  Trump v. Hawaii remains alive at the Court, likely because this case challenged an aspect of the original Executive Order that was not raised in the Fourth Circuit litigation, namely a 120-day suspension of admission of refugees into the United States that is still in effect.  That particular suspension, however, is scheduled to end on October 24th, which will likely render Trump v. Hawaii moot as well.  Apparently anticipating this, the Supreme Court has removed Trump v. Hawaii from its argument calendar.

The Hawaii Plaintiffs, though, are not going quietly.  In response, they sought leave from the district court to file an Amended Complaint challenging the September 24th Executive Order in the existing case.  While this tactic may permit the current litigation to survive, it is likely to cause the Supreme Court to either vacate the Ninth Circuit decision in the case, or to dismiss the writ of cert as improvidently granted (“DIG-ing” the case, in SCOTUS parlance).  Doing so will allow the case to survive for now, but the litigants will likely be forced to start afresh in the district court.

Supreme Court of Virginia Addresses the Reach of Conspirator Liability under the Virginia Business Conspiracy Act

The Supreme Court of Virginia recently addressed conspirator civil liability under the Virginia Business Conspiracy Act, Va. Code §§ 18.2-499 and -500.  Borrowing from Illinois law, the Court recited that “[t]he function of the conspiracy claim is to extend liability in tort beyond the active wrongdoers to those who have merely planned, assisted or encouraged the wrongdoer’s acts.”   While the case does not really change the substance of Virginia law, the opinion in Gelber v. Glock offers language that will likely appear in every future Virginia brief on conspirator liability and in the conspiracy jury instructions.

Tucked into the back of a 39-page opinion dealing with a family feud over an estate, the Supreme Court provides its tutorial on conspirator liability.   Admittedly, this is not federal law, but VBCA claims often appear in E.D. Va. litigation when state claims are before the federal court under diversity jurisdiction or pendent jurisdiction.

The Family Feud Case

The case is Gelber v. Glock, Record No. 160500 (June 22, 2017), a decision from an appeal heard during the Supreme Court of Virginia’s February 2017 Session.  The facts are those of the classic family feud.  In an early will, Mrs. Gelber left her estate to be divided among her five children.  Subsequent estate documents seemingly altered this directive—Mrs. Gelber’s real and personal property was to go to just one of her daughters.  The Executors sued on multiple theories, including a claim that the lucky daughter was part of a civil conspiracy with one of her sisters and a brother-in-law.

The Circuit Court for Henrico County granted a Motion to Strike the conspiracy claim.   The Supreme Court found no error in this circuit court ruling.  Given this straightforward appellate finding, the Supreme Court perhaps likely could have addressed the conspiracy Assignment of Error in a single paragraph.  But the Justices chose to give us a powerful tutorial on conspirator liability under the VBCA.  The tutorial is perhaps dicta, but it is nonetheless part of the Supreme Court opinion.

The Language of the Virginia Business Conspiracy Act

The VBCA is a two-part statute found in Title 18 of the Virginia Code, the criminal law title.  Va. Code § 18.2-499 identifies the elements of the criminal conspiracy. The next section, Va. Code § 18.2-500, provides for civil remedies for conspiracy violations.  Subpart A of the section reads:

Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff’s counsel, and without limiting the generality of the term, “damages” shall include loss of profits.

The Reach and Purpose of Civil Conspiracy Liability

The real punch from the Gelber decision is the confirmation of conspirator liability beyond the primary tortfeasor.  The decision explains, “the object of a civil conspiracy claim is to spread liability to persons other than the primary tortfeasor.”  Gelber at 37.  The Court expands its discussion in footnote 21.  Quoting from Beck v. Prupis, 162 F. 3rd 1090, 1099 n. 18 (11th Cir. 1998), aff’d, 529 U.S. 494 (2000), the Gelber Court adds that “[i]n a civil context … the purpose of the conspiracy claim is to impute liability– to make X jointly liable with D for what D did to P.”   This is language is straight from Prosser and Keeton on Torts § 46 (5th Ed. 1984).

The Gelber opinion continues, in the same footnote 21, “[t]hus, a civil conspiracy plaintiff must prove that someone in the conspiracy committed a tortious act that proximately caused his injury; the plaintiff can then hold other members of the conspiracy liable for that injury.”  In support of this statement, the Supreme Court cites authority not only from the 11th Circuit, but also from the 8th Circuit, and from the Utah federal court and the Illinois Supreme Court.

The cited Eighth Circuit decision, Simpson v. Weeks, 570 F.2d 240, 242-43 (8th Cir. 1978), provides a clever analogy, “[t]he charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible for any overt act or acts.”   The Utah federal court decision, Boisjoly v. Morton Thiokol, Inc., 707 F. Supp. 795, 803 (D. Utah 1988), explains that “[c]ivil conspiracy is essentially a tool allowing a plaintiff injured by the tort of one party to join and recover from a third party who conspired with the tortfeasor to bring about the tortious act.”

Finally, Gelber confirms that conspiracy liability is the same for low-level players as it is for conspiracy kingpins.  The cited Supreme Court of Illinois decision, Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill. 1994), offers, “[t]he function of the conspiracy claim is to extend liability in tort beyond the active wrongdoers to those who have merely planned, assisted or encouraged the wrongdoer’s acts.”

Summary: Gelber and VBCA Conspirator Liability

The Supreme Court of Virginia ranges far and wide for its authority on conspirator civil liability perhaps because a clear statement of civil liability tied to a conspiracy claim was previously missing from the Virginia case law.  For instance, plaintiffs looking for authority for conspirator civil liability have frequently cited Carter v. Commonwealth, 232 Va. 122 (1986), a criminal case about vicarious liability for the use on a firearm in a felony.  This is not to say that Virginia law was any different before Gelber, but that it was challenging to find on-target Virginia citations supporting conspirator civil liability.

Expect that the Gelber language will be prominent in trial briefs and jury instructions for future VBCA claims in the state courts and in the federal courts.

Fourth Circuit Pulls No Punches in en banc Ruling on Second Immigration Order

In writing for the majority in the Fourth Circuit’s May 25, 2017 en banc decision on the second Immigration Order, Chief Judge Roger L. Gregory pulled no punches.  The combined opinions of the Court in International Refugee Assistance Project v. Trump (No. 17-1351) span 206 pages, but in the opening paragraph of his majority opinion, the Chief Judge puts a dagger into the Administration’s arguments.  He writes:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex Parte Milligan, 71 U.S.  (4 Wall) 2. 120 (1866), remains “a law for rulers and people, equally in war and in peace.”  And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with the vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

There’s no ambiguity in these words.

This Blog Post is the EDVa Update’s seventh posting on the Immigration Orders.   We posted previously on EO-1 back on February 3, 7, and 14, and then on EO-2 on March 20 and 30, and again on April 21.

Thirteen of the Fourth Circuit’s fifteen judges participated in the en banc argument (two judges recused themselves—more on this below).  Chief Judge Gregory’s opinion is joined by six other judges from the court.  There are two concurring opinions (including substantially concurring votes with the majority), and three dissents.

The bottom-line result is that the Fourth Circuit affirmed the Maryland District Court’s nationwide preliminary injunction barring enforcement of Section 2(c) of Executive Order 13780, the second Immigration Order signed by President Trump.   The decision was probably expected, but the vitriolic tenor of the majority opinion is still a surprise.

The same Executive Order is the subject of an injunction entered by a Hawaii federal judge.  That ruling is also on appeal, and a three-judge panel from the Ninth Circuit heard oral argument on May 15, 2017.  That panel is not yet ruled.

On June 1, 2017, the Administration filed in the U.S. Supreme Court its Petition for a Writ of Certiorari and for an emergency stay of the decision.  A stay requires the affirmative votes of five Justices.

Isolation of the Judicial Review Issue

The issue at the core of the Immigration Order battle is whether in the immigration context the federal courts should look behind the facial justifications given for the Executive Order.  The campaign statements of candidate Trump allegedly evidenced an anti-Muslim animus, and post-inauguration statements by the President and his advisors were alleged to confirm this animus.  But it was generally conceded that the obvious flaws in EO-1 were corrected and that EO-2 was facially neutral.

In the briefing and at the oral argument, the Administration aggressively defended the second Immigration Order as facially legitimate, and argued that for this reason the Court should look no further.  The Plaintiffs alleged that the Order’s stated purpose was given in bad faith, and therefore, the federal courts must consider whether the Plaintiffs made the requisite showing of bad faith.

Fourth Circuit’s Majority Analysis

The Fourth Circuit moved to the core issue finding “that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose.”

The Court then delivered its key finding: “Plaintiffs have made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith, we [therefore] find it appropriate to apply our long-standing Establishment Clause doctrine.”    Chief Judge Gregory concluded that “the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.”  The opinion discusses the now familiar evidence from the litigation on both the first Immigration Order and the second Immigration Order.   “[T]he Government’s argument that EO-2’s primary purpose is related to national security . . . is belied by evidence in the record that President Trump issued the first Executive Order without consulting the relevant agencies, . . . and that those agencies only offered a national security rationale after EO-1 was enjoined.´  This leads to the circuit court’s conclusion, “[L]ike the district court, we think the strong evidence that the national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a ‘litigating position’ than is the actual purpose of EO-2.”

The Chief Judge then again applied the dagger:

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the in the name of the Constitution’s separation of powers.  We declined to do so not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.  The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

Judge Keenan offered a concurring opinion, which Judge Thacker joined.  Judge Wynn added his own concurring opinion.

The Three Dissents

Judges Niemeyer, Shedd, and Agree wrote dissenting opinions.

In his dissent, Judge Niemeyer accepted the Administration’s argument that in the immigration context the federal courts should not look beyond the given facially legitimate and bona fide reasons for the Immigration Order.  He concludes, “considering the Order on its face, as we are required to do . . . it is entirely without constitutional fault that the Order was a valid exercise of the President’s authority . . . “Judge Niemeyer would draw the line as barring any further court review.  But after this defense was breached, he is deeply troubled by the majority’s willingness to rely on statements made by candidate Trump during the presidential campaign.

The second dissent, by Judge Schedd, joins with Judge Niemeyer, but adds a practical public interest analysis.  He concludes that “the district court’s public interest analysis misses the mark.”  When weighing the public’s interest, as courts are required to do when considering preliminary injunctions, the national security interests of the nation seem to have been swept under the rug.  Judge Shedd would deny a preliminary injunction on the ground that a balancing of interests favors enforcement of the Order.

Judge Agee joins with the other dissenters, but states as a separate basis for his dissent the questionable standing of the remaining Plaintiffs.  Obviously, if the remaining Plaintiffs have no standing, the Court could end the case.

Judge Wilkinson’s Recusal

Judge J. Harvey Wilkinson recused himself because his son-in-law is the acting Solicitor General who argued the case for the Administration.  While the recusal was legally appropriate, Judge Wilkinson’s absence deprives the decision of the analysis from one of the Fourth Circuit’s thought leaders.  His vote would not have changed the result, but if Judge Wilkinson had participated and had joined the majority, or had provided a concurring opinion, then the Administration might be very hesitant to push this case to the Supreme Court.  On the other hand, a strong dissent from Judge Wilkinson would have added gravitas to the Administration’s arguments.

Summary

The Fourth Circuit’s en banc decision in International Refugee Assistance Project v. Trump does not come as a surprise, based upon the oral argument.  The circuit court perhaps could have decided for the Administration by adopting Judge Trenga’s analysis (see EDVa Update March 30, 2017 Post, EDVa Back in the Immigration Fray: Judge Trenga Provides Qualified Win for President Trump’s New Immigration Order), but it went decidedly the other way in its 10-3 decision.  The surprise is the vitriolic tenor of the majority opinion.   The en banc argument was civil, as is always so in the Fourth Circuit.  But the opinions evidence deep-seated and intense views on the role of the federal courts and on the veracity of the Trump Administration, and certainly the Chief Judge pulled no punches when he wrote for the majority.

The late-breaking news is that the Administration has filed its Petition for Certiorari with the U.S. Supreme Court.  An early vote on the request for a stay (which can come this month before the summer recess) would signal the Court’s leaning on the issues.

C-Span to Broadcast Live Audio of Today’s 4th Circuit’s Argument on Immigration Executive Order

The Fourth Circuit will hear en banc the oral argument today at 2:30 pm in International Refugee Assistance Project v. Trump.   For the first time (that we know) the Court will allow a live audio broadcast of proceedings.

Earlier this year the Ninth Circuit permitted the live audio broadcast of the argument on the prior Immigration Executive Order.  137,000 people logged in to listen.

Listeners can find the link to the audio feed on the Fourth Circuit’s web page here.  The Court has also advised that an MP3 audio file will be available for download approximately one hour after the argument concludes here.Graphic

The case Orders and Briefs are available online on the site.  In the Case Information section under Public Advisory #4 in the News & Announcements section on Page 1, the Orders, Briefs and more are accessible.

Only 14 of the Court’s 15 active judges will hear the case.  Judge Wilkinson has recused himself because his son-in-law is the Acting Solicitor General.  The even number of participating judges presents the awkward possibility of a tie vote.

For an overview of the issues in the appeal, you should see our earlier EDVa Update posts on the Immigration Order battles here, here, here, here, and here.  But if you only have time to review one post, go our March 30th post.   While the instant appeal addresses an order from the District Court for Maryland, and not Judge’s Trenga’s ruling in Sarsour et al. v. Trump, his opinion provides extremely well-reasoned coverage of the issues.

En Banc 4th Circuit to Hear Trump Immigration Executive Order Appeal

The Fourth Circuit Court of Appeals will sit en banc to hear the latest appeal regarding President Trump’s second Executive Order regarding immigration.  All active judges of the Fourth Circuit will now participate in oral argument scheduled for May 8th in Richmond, instead of the customary three-judge panel.  

This decision comes from the Fourth Circuit itself, after acting sua sponte to request the views of the parties in the case (we discussed the court’s request in our earlier post here).  As a practical matter, this potentially eliminates one round of appellate review in the Fourth Circuit, speeding up the timeline to reach the U.S. Supreme Court with this case.  Otherwise, a party losing in front of a three-judge panel could petition for an en banc hearing in front of the full Fourth Circuit, which could have added another 6-9 months before an appeal to SCOTUS.  

The May 8th oral argument promises to be a spectacular event, at least for appellate aficionados.  Both sides will present experienced appellate advocates, and the Fourth Circuit’s information office has already set aside an overflow room with a live audio/video feed of the argument, in addition to accepting credentialed media in reserved seating.  

If you want to attend the argument in person, plan on showing up to the courthouse well in advance of the 2:30 p.m. hearing.  Otherwise, pull the parties briefs off the Fourth Circuit’s website here, and wait for the audio of the argument to be posted the following day on the court’s website here.

EDVA Back in the Immigration Fray: Judge Trenga Provides Qualified Win for President Trump’s New Immigration Order

The Eastern District of Virginia continues to influence the national debate over President Trump’s new Executive Order on immigration.  Judge Anthony Trenga of the EDVA offered one of the first wins for the Government when he denied immediate injunctive relief against the new Executive Order.  While Judge Trenga’s opinion was not the first to arrive in the Fourth Circuit, his decision is already appearing in the Government’s appellate briefs.

On Friday, March 24, 2017, in Sarsour et al. v. Trump (Case No. 1:17cv 120), Judge Trenga denied injunctive relief sought by plaintiffs challenging President Trump’s second Executive Order on immigration.  In a 32-page opinion, Judge Trenga provided detailed consideration of the replacement Immigration Executive Order issued by the Administration on March 6, 2017.  After cataloging significant changes in the replacement Order, the judge concluded that it’s not likely that the plaintiffs can prove that the President acted outside his delegated and constitutional authority, and thus the Court denied the emergency relief sought by the plaintiffs.

In our March 20th blog post, we reported on decisions from district courts in Hawaii and Maryland that granted nationwide temporary injunctive relief enjoining critical parts of the replacement Order.  The Government has noticed an appeal of the Maryland order to the Fourth Circuit.  Judge Trenga’s ruling is the first significant decision arguably upholding the constitutionality of the replacement Immigration Executive Order.

Meanwhile in the Fourth Circuit, the Maryland Order is on the hot seat.  The Government has moved to stay that Order and asked for accelerated briefing.  The Fourth Circuit granted the acceleration request on March 23rd, and the Government filed its Opening Brief the following day.  Additionally, 12 states field an amici brief in support of the Government’s position.  The opposition briefs are due on April 14th, and oral argument is scheduled for May 8th in Richmond.  Further, the Fourth Circuit sua sponte has requested the views of the parties whether the May 8th hearing should be en banc before all of the Fourth Circuit judges, instead of the customary three-judge panel.  The deadline for the responses of the parties on this issue is today.

The Replacement Immigration Executive Order

In a previous blog post, we summarized the replacement Order.  The first Executive Order from late-January had obvious facial flaws, including the absence of any national security justification for the critical and controversial “travel ban” provisions.

The replacement Order is, by all measures, facially neutral, and the Administration has provided its statement of justification focused on national security concerns.  The justification includes explanations of why each “travel ban” country poses significant immigration dangers.

Judge Trenga’s Sarsour v. Trump Opinion – Preliminaries

The Sarsour Complaint was filed by a series of individual plaintiffs; unlike the earlier Aziz v. Trump case where the Commonwealth of Virginia assumed the lead in the case, there is no state presence in this case.

The specific substantive claims are similar to those in the Hawaii and Maryland cases.  That is, there is a count based on the Immigration and Naturalization Act (“INA”), a claim grounded in the Establishment Clause, and then Due Process claims.

Judge Trenga sets the stage for his Sarsoar opinion by reminding us that he’s ruling on a TRO/Preliminary Injunction motion.  These are both “extraordinary remedies” which should be “granted only sparingly and in limited circumstances.”  He then outlines the now-familiar four-step analysis from Winter v. Nat.  Res. Def. Council, Inc., 555 U.S. 7 (2008).

The Court’s findings recognize that the plaintiffs have sufficiently shown their standing to challenge the new Executive Order.  The opinion then turns to the INA and APA-based claims. Recall that the earlier Maryland District Court opinion rejected the INA claim as a basis for temporary injunctive relief.  Judge Trenga likewise concluded that the plaintiffs have failed to clearly show that the President’s authority is limited under the relevant INA sections

The Critical Establishment Clause Analysis

As before in the other cases, Judge Trenga’s core analysis is directed to the Establishment Clause claim, which is Count 1 in the Sarsour Complaint.  Sarsour’s allegation is that the replacement Immigration Executive Order “violates the Establishment Clause because it disfavors the religion of Islam.”  Sarsour conceded that the new Executive Order does not facially violate the Establishment Clause, and the District Court then applied the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971).  Within this test, Judge Trenga focused on the first part of the Lemon test, specifically whether the replacement order has a secular purpose.

Judge Trenga rejected the Government’s argument that the President offered a legitimate, rational, and non-discriminating purpose in the replacement Executive Order, and in turn, this permitted the federal courts to go outside of the four corners of the Order to analyze constitutional validity.  (This was the same argument that the Government made unsuccessfully in defense of the original Executive Order; the argument was also unsuccessful before the Ninth Circuit and before Judge Brinkema in Aziz v. Trump.)

Judge Trenga then went to the heart of the case: “[T]he question is now whether the President’s past statements continue to fatally infect what is facially a lawful exercise of presidential authority.”  The past statements are those by candidate Trump and campaign surrogates promising a ban on Muslim immigration.  These allegedly anti-Muslim statements were the bases for the earlier federal court decisions enjoining the original Executive Order, and they served as the bases in the Hawaii and Maryland District Court decisions enjoining the new Order.  Citing Supreme Court authority, Judge Trenga explained that “past actions [do not] forever taint any effort on [the government’s] part to deal with the subject matter.”

Continuing in the next paragraph, Judge Trenga wrote, “the Court cannot conclude for the purposes of the motion that the statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority . . . .”   He then concludes “the substantive revisions reflected in [the replacement immigration Executive Order] have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominant purpose . . . is to discriminate against Muslims based on their religion . . . .”   The Establishment Clause count, therefore, failed at this point in the proceedings.

Continuing with the four-step TRO/Preliminary Injunction analysis, Judge Trenga agreed that the plaintiffs made an adequate showing of irreparable harm.  But because of the revisions in the replacement Executive Order, the plaintiffs did not establish that the equities tipped in their favor, and the plaintiffs also did not establish that the public interest favored the issuance of immediate injunctive relief.

The Fourth Circuit Accelerates Consideration of the Maryland District Court’s Ruling

On March 17th, the Government noticed its appeal of the injunction granted by the Maryland District Court.  If Judge Trenga’s Sarsour ruling is appealed, then the Fourth Circuit might consolidate the two cases. But even without a formal appeal, the Fourth Circuit will have before it multiple citations to Judge Trenga’s opinion and analysis in the Government’s opening brief.

At this point, the Maryland District Court injunction remains in place, and the Fourth Circuit will consider the matter promptly.  As noted above, the Government has already filed its Motion to Stay the Maryland Injunction, and the Fourth Circuit has accelerated consideration of the appeal.

At this point, the Fourth Circuit is likely to see the next major action on the Executive Order, as it appears that the Government is more interested in appellate review here as opposed to the Ninth Circuit.

Stay tuned.

President Trump’s Immigration Executive Order Heads to the Fourth Circuit

The Trump Administration issued its replacement Immigration Executive Order on March 6, 2017 (Order No. 13,780).  This Executive Order arrived three weeks after several federal courts, including the EDVa and the Ninth Circuit, enjoined enforcement of core terms of the earlier Immigration Executive Order (Order No. 13,769).

In this Blog Post, we report on two federal court rulings blocking enforcement of the replacement Immigration Executive Order. EDVa has not yet been drawn into this legal battle.  But it is emerging that Judge Brinkema’s analysis in her widely-reported February 13, 2017 decision in Aziz v. Trump provides the template for judicial review of the new Executive Order.  This Post revisits Judge Brinkema’s decision and shows how the decisions this week from federal courts in Hawaii and in Maryland have tracked her analysis.  This analysis will soon be scrutinized in the Fourth Circuit, as, the Government noticed its appeal late on Friday night (March 17).

We previously reported on Judge Brinkema’s ruling in Aziz v. Trump granting the Commonwealth of Virginia’s Motion for a Preliminary Injunction.  Judge Brinkema ruled that Virginia would likely prevail on its Establishment Clause claim and issued a narrowly-drafted Preliminary Injunction Order.  No appeal was taken by the Government.

The Aziz v. Trump decision is significant not so much for developments in Immigration Law (although it has significance consequences), but for the three-step analysis applied by Judge Brinkema: (1) It was first decided that Virginia had standing to challenge the Executive Order as a party whose own interests were at stake (the Court did not reach a decision on Virginia’s parens patriae standing theory); (2) her opinion then confirms that federal courts unquestionably have the authority to review the constitutionality of actions by the Executive Branch, including actions of the President; (3) and lastly, perhaps most importantly, a federal court does not have to accept the facial justifications offered for Executive Branch action, but may consider evidence of contrary, unconstitutional motives.

The Replacement Immigration Executive Order

The Administration’s replacement Immigration Executive Order is identically entitled “Protecting the Nation from Foreign Terrorist Injury into the United States.”  The Order seeks to restrict the entry of foreign nationals from specified countries and suspends entrance from the United States refugee program for a set time period.   The new Order seeks to address the Ninth Circuit’s February 9, 2017 decision in Washington v. Trump, and to some degree to answer concerns from Judge Brinkema’s February 13, 2107 Aziz v. Trump decision.

Some of the more obvious flaws and procedural frailties from the earlier Immigration Executive Order are either omitted or repaired, but the core of the order remains essentially unchanged.  That is, the so-called “travel ban” provisions remain in the Order.

The Hawaii Court’s Ruling and “Pretextual Justification”

The legal arguments have shifted slightly in the challenges to the new Immigration Executive Order. In the February challenges to the first Order, the Government argued that the President’s actions in the realm of national security could not be reviewed by a federal court. When Judge Brinkema and the Ninth Circuit forcefully batted down this argument, the Government was left without any factual defense.  Recall that Judge Brinkema’s opinion cited Virginia’s factual allegations showing evidence that the Order’s true purpose was to block Muslim entry into the United States.  The evidence included multiple quotes from Donald Trump on the campaign trail, and added quotations from Rudy Giuliani alleging that the purpose of Order was to make good on the so-called “Muslim Ban” campaign promises.

In wading into the Pretextual Justification issue, Judge Derrick K. Watson, from the Hawaii District Court, begins with an acknowledgment that “It is undisputed that the [new] Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.”  The Government argued that the core language was “religiously neutral,” and that the new Immigration Executive Order could not have been religiously motivated because “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population . . . .”  The Government continued that “[C]ourts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’”  In the Government’s analysis, this should have ended the case and defeated Hawaii’s arguments.

But the Hawaii federal judge did not stop with the Government’s argument.  He cited the Ninth Circuit’s February 9, 2017 decision regarding the earlier Immigration Executive Order in Washington v. Trump:  “It is well-established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”  This is the entry of the “Pretextual Justification” issue: Were the Trump Administration’s facially-neutral legal justifications intended to obscure a purpose of barring Muslim immigrants?

The allegations of anti-Muslim animus—taken in substantial part from the record in Aziz v. Trump—was obviously not going away.  Judge Watkins continued, “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”

The evidentiary record before Judge Watson included more than the Trump campaign statements and promises, and more than the Giuliani commentary on a “Muslim ban.”  The judge had before him the earlier Declaration National Security Officers that criticized the Trump Administration’s arguments.   In the view of Judge Watson, the Administration’s case was further damaged a by February 21, 2017 statement by Stephen Miller, the President’s Senior Advisor.  Miller stated, “fundamentally, [despite ‘technical’ revisions meant to address the Ninth Circuit’s concerns in Washington v. Trump,] you are still going to have the same basic policy outcome [as the first].”

The Hawaii District Court found that the plaintiffs would likely prevail on their Establishment Clause claim.   Late on March 15, 2017, Judge Watson entered a nationwide TRO enjoining enforcement of Sections 2 and 6 of the new Immigration Executive Order.  Section 2(c) is the “travel ban” part of the Order, and Section 6 suspends the refugee program.

Maryland Federal Court Frames Issue as “Pretextual Justification”

Meanwhile, in the Maryland District Court, Judge Theodore D. Chuang authored a 43-page opinion in International Refugee Assistance Project v. Trump.  Judge Chuang released his decision on March 16, 2017, along with a nationwide preliminary injunction enjoining enforcement of Section 2(c) of the new Executive Order. Unlike the earlier cases involving the first Immigration Executive Order where the lead plaintiffs were the states, the plaintiffs in the Maryland action are nonprofit entities and several individuals. The Maryland District Court, however, had no difficulty finding that these plaintiffs have standing.

As in the Hawaii ruling, the Maryland plaintiffs prevailed on the Establishment Clause claim, the greatest vulnerability for the Immigration Executive Order.  The Court considered in some detail claims based on the Immigration and Nationality Act, but rejected those claims.  The Court also weighed and credited a number of the Government’s arguments. For example, the President’s assertions that the Order is driven by national security and foreign policy judgments is in the opinion recognized as a valid secular purpose.

Judge Chuang, citing Supreme Court precedent, framed the critical issue this way: “The question, however, is not simply whether the Government has identified a secular purpose for the travel band.  If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated.”  Here the Government’s argument that the case is only about a “facially legitimate and bona fide reason” for the Executive Branch action is rejected   The judge concludes that “in this highly unique case, the record provides strong indication that the national security purpose is not the primary purpose for the travel ban.”

Where Do We Go From Here?  To the Fourth Circuit.

The Government has now picked its battleground.   Late on Friday, March 17, 2017, the Government noticed its appeal of the Maryland District Court ruling to the Fourth Circuit.  While Judge Brinkema’s ruling will not formally reach the Fourth Circuit, her reasoning will be examined on appeal when the Circuit Court reviews Judge Chuang’s decision.

Under the current Briefing Order, the Government’s Opening Brief will be due on April 26, 2017 in the Fourth Circuit.  Unlike in last month’s Ninth Circuit consideration in the Washington case where the Government sought emergency review of the TRO, the Government is not seeking an emergency review of the Maryland District Court’s preliminary injunction ruling.  After the Government’s rough experience in the Ninth Circuit, it was probably an easy decision to go to Richmond rather than San Francisco.

Is the Standard for Summary Judgment Evolving in EDVA?

Is the standard for summary judgment evolving, and has the Eastern District kept up with the evolution? 

In a July 6, 2016 decision in Guessous v. Fairview Property Investments, LLC, (Dkt. No. 15-1055), the Fourth Circuit reversed Judge Lee on all six counts in a fairly standard discrimination case.  The Court found repeatedly that the record was sufficient to permit a reasonable jury to find for the plaintiff, yet the District Court had credited the Defendant’s summary judgment evidence and granted summary judgment.  Stated differently, the appellate court reminds us that a district court’s weighing the evidence at summary judgment is impermissible.

The adjustment to the summary judgment standard traces to a May 2014 Supreme Court decision in what was a fairly routine § 1983 case.  In Tolan v. Cotton, 572 U.S. __ , 134 S.Ct. 1861 (2014), a Texas district court had granted summary judgment to a police officer deciding that his conduct in a police shooting was “objectively reasonable.”  There was evidence on both sides of the summary judgment issues; the district court weighed the evidence and came down in favor of the police officer.

The Fifth Circuit affirmed, albeit on different grounds, but three judges on that court voted in favor an en banc hearing. The case could easily have been passed over at the certiorari stage (Justice Alito, joined by Justice Scalia, wrote a concurring opinion complaining that the case was so routine that the Court should not have granted certiorari), but it seemed that several of the Supreme Court justices were looking for the opportunity to remind lower courts that a judge’s function at summary judgment is not to weigh the evidence but to determine whether there is a genuine issue for trial.”  This is the time-honored directive from Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), but the Court’s Tolan decision suggests that justices believed that the standard needed some reinforcing.

The Fourth Circuit followed Tolan a few weeks later in McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014).  It then quoted from Tolan: “It is an ‘axiom that in ruling on a motion for summary judgment, [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’”   Not long afterwards, in March 2015, the Fourth Circuit provided “further elaboration” of the summary judgment standard in Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015).  In an ominous introduction that highlighted a “clear misapprehension of summary judgment standards”, the panel of Judges Floyd, Keenan, and Harris cited Tolan:

Ordinarily we would begin our discussion with a brief restatement of the standard of review for a motion for summary judgment. When “the opinion below reflects a clear misapprehension of summary judgment standards,” however, further elaboration is warranted. Tolan v. Cotton (citations omitted) (per curiam).

Given this harsh treatment of the district court, it was no surprise that the Fourth Circuit reversed in part and remanded for trial.  The Court observed that in the Tolan case the district court had “fail[ed] to credit evidence that contradicted some of its key factual conclusions” and “improperly ‘weighed the evidence’ and resolved disputed issues in favor of the moving party.”

The Tolan and Jacobs decisions arguably provide a course correction in the summary judgment standards in cases where there is conflicting record evidence. The frequent Tolan quote is this:

Where there is conflicting evidence, the court must credit the evidence of both sides and acknowledge that there is a genuine issue of material fact that cannot be resolved by summary judgment. See Tolan v. Cotton (stating that summary judgment is inappropriate where each side has put forward competent evidence that raises a dispute about a material fact).

Westlaw identifies more than 870 case citations to Tolan.  Granted, many of the citations are for the § 1983 issues, but the case still stands tall because of the adjustments to the summary judgment standard.  Since Tolan, the above quote appears in multiple summary judgment rulings by Judge Cacheris, and in several ruling by Judge O’Grady.  Magistrate Judge Buchanan has also cited Tolan.  The Westlaw search shows, however, no other reliance either way on Tolan in the Alexandria Division of the Eastern District.

Sometimes district courts cite only the controlling circuit court decision without mentioning the Supreme Court case. The leading Fourth Circuit authority is the Jacobs decision.  Westlaw confirms that Jacobs has been cited in 136 cases, with most of these from within the circuit; there are more than 70 citations from the Maryland District Court, but only four from the Eastern District of Virginia, and just one of those four is from the Alexandria Division.

The Fourth Circuit’s Guessous decision relies on both Tolan and JacobsThe Court writes:

The court must “view the evidence in the light most favorable to the [nonmoving] party.”  Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation omitted).   “The court . . . cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015).  In general, if “an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate.” Fed. R. Civ. P. 56 advisory committee’s note to 1963 amendment.

Guessous at 16-17.  It is after these pointed citations that the Court launches into its “reasonable jury” analysis.   “A reasonable jury could easily conclude, however . . .”       Id. at 22. “This alone would be enough to allow a reasonable jury to conclude. . .”   Id. at 23.  “[T]he record is sufficient to permit a reasonable jury to conclude . . .” Id. at 28.  “[A] reasonable jury would certainly be entitled to reach a different conclusion . . .”   Id. at 30.  The Court’s unanimous decision reversed and remanded on all six counts.

Because so much of the Eastern District’s civil docket encounters summary judgment, Tolan and Jacobs are important precedents.  Other districts within the circuit, mostly notably the District of Maryland, seem to have recognized the course adjustment.  The Guessous decision perhaps is a wake-up call to the rest of the circuit, including the Eastern District of Virginia, to recognize the appellate direction for a tighter summary judgment standard.

Is the Specter of New Rule 37(e) Influencing District Courts in Spoliation Rulings?

We have written multiple times on the EDVa Update Blog about the Court’s handling of spoliation claims. Recently we covered the 4th Circuit’s remand of a District Court ruling applying an adverse inference following a failure to preserve certain evidence.  We have also written on the workings of amended Fed. R. Civ. P. 37(e).  With sweeping changes ahead with the amendment to Rule 37(e) (effective date: December 1, 2015), the Court’s analysis of spoliation claims and associated sanctions will undergo major changes.

The Eastern District’s 61-page opinion in Integrated Direct Marketing, LLC v. May & Merkle, Inc., Case No. 1:14-cv-1183 (E.D. Va. Sept. 8, 2015), is likely one of the last pre-Rule 37(e) amendment spoliation rulings we will see. In this case, the ruling is consistent with the analysis that will soon apply, but the District Court in the case took a very different route to get to the same place. Even though the record included substantial evidence of ESI spoliation, the Court based its ruling on its finding of false statements in an affidavit, which allowed it to side-step the current legal swamp on spoliation.

IDM Case Posture: Summary Judgment and Spoliation Arguments

The IDM case presented an unfortunate but common fact pattern.   It is alleged in the pleadings that Drew May, an Executive Vice President at IDM, was pushed out of the company.   As he left, he allegedly downloaded a large number of IDM’s electronic documents to an external hard drive. May then signed on as new vice president at Merkle, a competitor to IDM.   While IDM was threatening suit, the former VP allegedly deleted (on the day before the filing of the Complaint) many of the IDM documents that he allegedly downloaded to his external hard drive. The deletion activity allegedly continued for the next couple weeks. Since the VP knew of the credibly threats of a lawsuit, there was a duty preserve relevant ESI and documents.

IDM sued in the Alexandria Division of the Eastern District on multiple counts. The lead claims were for trade secrets misappropriation, breach of fiduciary duty, beach of a confidentiality agreement, and conversion. The discovery quickly turned to the ESI on the VP’s external hard drive.

IDM retained Craig Ball, a nationally-known eDiscovery attorney and forensic investigator to examine the VP’s external hard drive.  Ball uncovered the VP’s conduct and identified more than 500 deleted IDM documents. Ball’s work also identified incriminating dates of the VP’s alleged deletions.

After a prolonged discovery war, both defendants moved for summary judgment arguing that there were no trade secrets involved and there had been no misappropriation. Defendant Merkle was apparently able to distance itself from the VP’s conduct; the Court granted Merkle’s motion on all counts.

The VP’s defense was complicated by the spoliation and false statement issues. The Court’s opinion notes that relevant evidence was not truly lost, and in fact, had been recovered. The Court was nonetheless troubled by the conduct, which included false statements in an affidavit submitted to the Court. IDM’s substantive case, however, was deteriorating. It faced an added hurdle that its designation of experts came late, and the Court had barred the damages experts from testifying—a huge problem in proving IDM’s $46 million claimed damages.

In its post-discovery pleadings, IDM emphasized the evidentiary spoliation and the VP’s false statements, and it targeted the most severe spoliation sanctions—striking of defenses and/or an adverse inference instruction to the jury.

The District Court‘s solution in its rulings was to veer away from spoliation and to focus on the false statements in the VP’s affidavit. Curiously, the Court concluded that since the forensic work led to the recovery of the deleted ESI, there was “insufficient evidence to support a finding of spoliation.” In its remedy, the Court avoided the draconian sanctions requested by IDM, but imposed stiff financial sanctions against the VP.

The VP’s motion for summary judgment was granted on all but the conversion counts, but the Court ordered him to pay a portion of IDM’s attorney’s fees plus the forensic expert’s bill.

Influence of Rule 37(e)’s Upcoming Arrival?

The District Court’s ruling comes under the current rules and case law. In 10 weeks, however, amended Rule 37(e) will be effective, and the requisite analysis will shift. The coming rule will limit the Court’s inherent authority to impose spoliation sanctions (instead, authority will come from the new amended Rule), will structure the factual and legal analysis, and will direct turning away in most situations from the draconian sanctions and towards remedies that are not outcome determinative. Hopefully, what is currently a legal swamp will disappear, and District Courts will then see have a clearer analytical path and predictable sanctions.

Notwithstanding the District Court’s conclusion that there was insufficient evidence to support a finding of spoliation (the findings suggest egregious spoliation but not real prejudice to IDM), it appears that IDM had a serious argument that the VP’s conduct supported striking his defenses or giving IDM an adverse inference instruction. Even under the upcoming new Rule 37(e) provisions, the VP’s spoliation arguably could support the imposition of the requested draconian sanctions. But the new Rule and the accompanying Committee Note state a preference for the alternative yet less-severe sanctions.

The IDM Court arrived at a solution that would be consistent with the coming rule. But the Court arrived at this result by a very different route.   The lengthy opinion side-stepped entirely the spoliation issue, and thereby avoided the current legal swamp. Instead, the Court grounded its ruling on the VP’s submission of a false affidavit.   This is an understandably safe route, but an unnecessary path after December 1, 2015 under the new Rule 37(e).

Fourth Circuit: Appellate Challenge to Summary Chart Requires Careful Attention to Avoid Waiver

A recent decision by the U.S. Court of Appeals for the Fourth Circuit illustrates the need for careful planning at the briefing stage to review the admission of a summary chart at trial.  In U.S. v. Katsipis, 598 Fed. Appx. 162 (4th Cir. 2015), an appeal from the U.S. District Court for the Eastern District of Virginia (Norfolk Division), a criminal defendant challenged his conviction under 33 U.S.C. § 1908(a) (2012), which requires ocean-going vessels to maintain an accurate “Oil Record Book.”  The Oil Record Book is a log of any discharge of oil contaminants into the sea, which is required under MARPOL, an international treaty governing ocean-going vessels.

During a U.S. Coast Guard inspection of the M/V Antonis G. Pappadakis, a bulk cargo carrier, multiple crew members accused Chief Engineer Lambros Katsipis of rigging a bypass system that flushed contaminated bilge water out to sea without sending the water through the ship’s oily water separator as required.  The crew members alleged that Katsipis encouraged them to lie about this bypass system to any law enforcement personnel who asked about it, and the Oil Record Book failed to reflect the bypass system.  Katsipis was subsequently indicted and tried by a jury in the Norfolk Division of the U.S. District Court for the Eastern District of Virginia.

At trial, the Government offered into evidence, under Fed. R. Evid. 1006, a summary chart prepared by a witness who investigated the ship.  The summary chart totaled the number of times that the defendant’s predecessor ran the oily water separator and then compared that number against the substantially-lower number of times that the defendant ran the separator over the same period of time.  The summary chart drew upon records in the ship’s Oil Record Book. The jury convicted Katsipis, and he was sentenced to one year of probation.

On appeal, Katsipis argued that the summary chart was improperly admitted into evidence.  Katsipis pointed to the witness’s testimony about the chart, specifically that the witness acknowledged during cross-examination that “the chart was of limited usefulness, as it accounted for no potentially confounding variables over the aggregate twenty-three month period.”

In a pointed comment in the opinion, the Fourth Circuit interpreted Katsipis’s argument as a challenge to admission under Fed. R. Evid. 403 and not under Fed. R. Evid. 1006.  The Fourth Circuit noted, “[w]hile Fed. R. Evid. 1006 typically governs the admission of summary charts, Katsipis only claims that the chart presented a danger of prejudice that outweighed its probative value, not that it failed to meet the standard for admission under Rule 1006.  Accordingly, we review Katsipis’s claim under Rule 403.”

As most federal trial lawyers know, Fed. R. Evid. 403 provides a low bar to the admission of relevant evidence.  If the danger of unfair prejudice substantially outweighs the probative value of the evidence, the court may exclude the evidence.  In real practice, Rule 403 does not often succeed in excluding evidence.  Instead, the Rule is only seriously considered in extreme cases, an illustrative example being repetitive graphic photos of murder victims at a crime scene.  It is no real surprise that the Fourth Circuit rejected Katsipis’s Rule 403 argument.

Further, the Court never considered whether the summary chart was proper under Rule 1006 because Katsipis was deemed to have waived the argument.  The Fourth Circuit’s opinion is unclear whether the waiver resulted from Katsipis’s failure to object under Rule 1006 during trial or whether the appellate briefs submitted to the Fourth Circuit omitted the argument.  Either way, this case offers an example of how an appellate consultant could assist a lawyer at trial, especially in criminal cases.  An appellate lawyer with a different eye can assist trial counsel to identify and preserve issues for appeal, while the trial lawyer focuses on the many preparations needed for a jury case.

Finally, this case reminds trial practitioners of the value of Fed. R. Evid. 1006 and the charts that may be presented to a jury to summarize voluminous (and dry) information or records.  We are all aware that people tend to be visual learners, especially so in our modern era dominated by smart phones and tablets.  Trial counsel should use this important tool of advocacy, which is chiefly limited only by the attorney’s creativity.