Category Archives: Local Procedure

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.

Practitioners’ Alert: New Procedure to Request Emergency Relief After Business Hours

The EDVA Clerk’s Office recently announced a new procedure for civil emergency matters (such as requests for emergency injunctions or TRO’s), that seek the immediate attention of a district judge outside of regular business hours or during weekends / holidays.  This is a brand-new procedure – for both attorneys and staff in the Clerk’s Office.

The new procedure is briefly described here on the EDVA website.  First, a party must electronically file a written motion requesting the emergency relief.  If no case is currently pending, the attorney will need to electronically open a new case (see here for the process to open new cases), followed by electronically filing the motion that requests the relief.

Once the motion is filed, the party must then call the Clerk’s Office via a special telephone number, which varies among the divisions within EDVA.  The telephone numbers are:

  • Alexandria Division:      (703) 403-2789
  • Norfolk / Newport News Division:      (757) 619-0307
  • Richmond Division:      (804) 313-1762

According to the Clerk’s Office, these numbers will go to cell phones that will be monitored by Clerk’s Office staff members.  Attorneys who call the numbers should expect to leave a voice mail explaining the emergency, in addition to providing the case number and contact information for the attorney.  The staff member will then triage the voice mail messages in consultation with a judge who is “on duty,” and then return the call “within a reasonable period of time” to advise how the request will be handled.  Practitioners should not expect to speak directly to a staff member during the initial phone call.

Practitioners should also be aware that this is a new procedure for the Clerk’s Office, and staff members have yet to be fully trained on the new process.  While that training unfolds across EDVA’s divisions, practitioners should keep a handy reference back to the Clerk’s Office web page outlining the procedure.

The EDVA Drama Over the Immigration Executive Order Advances to the Preliminary Injunction Opinion: An Update on the Constitutional showdown in Judge Brinkema’s Court

This Blog post is the third in a series tracking the EDVA case of Aziz et al. v. Trump, the challenge to the January 27th Immigration Executive Order.  The earlier posts covered the January 28th Habeas Corpus Petition filing and the first courtroom confrontation on Friday morning, February 3, 2017, and then followed the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order, with an eye on parallel proceedings in the Seattle federal court and the Ninth Circuit.

This third Blog post reports on Judge Brinkema’s February 13th Order in Case No. 1:17cv116—LMB/TCB, which grants Virginia’s Motion for Preliminary Injunction, and the judge’s accompanying Memorandum Opinion.  Consideration of the EDVa Order necessarily includes the Ninth Circuit’s February 9, 2017 Order and Opinion denying the Government’s request for an emergency stay of the February 3rd TRO issued by the Seattle federal district court.  The Seattle TRO enjoined the enforcement of Sections 3 and 5 of the Immigration Executive Order anywhere in the nation.  The Ninth Circuit left the TRO in place and returned the matter to the Seattle court for further proceedings.

Path to February 10th Hearing

Virginia’s Solicitor General, Stuart Raphael, set the battle lines in the Aziz case when he filed the Commonwealth’s February 2nd Brief in Support of the Motion for Preliminary Injunction.  Virginia proposed a fairly narrow and targeted order.  Unlike in the Seattle case where Washington and Minnesota pursued a nationwide ban on both substantive sections of the Executive Order, Virginia focused on the harm to the Commonwealth and its residents, and it challenged only Section 3(c) of the Executive Order, the section that applied to immigrants from the seven specified countries who held Green Cards or student/work visas.  Raphael knew what evidence Virginia could marshal in the short time to the preliminary injunction hearing, and he seemingly tailored the objectives to mesh with the evidence.

On February 3rd, Judge Brinkema granted Virginia’s Motion to Intervene.  Her reasoning essentially confirmed Virginia’s standing in the case.

On Wednesday, February 8, 2017, the Government filed its opposition to Virginia’s arguments.  Prior to this pleading, the Government had submitted its brief to the Ninth Circuit and had completed the appellate argument in an extraordinary telephone hearing (the circuit judges were in California, Hawaii, and Arizona, while the arguing counsel were in Seattle and D.C. – and 137,000 listeners followed the argument online).  The Government’s argument in the EDVA case tracked its position taken in the Ninth Circuit that the states did not have standing and that the federal courts have no jurisdiction to review the President’s findings and actions in the Executive Order.  The Government’s opposition went on to contest Virginia’s Due Process and Establish Clause arguments, but offered little or no evidence to support is defense.

The next day, the Ninth Circuit ruled against the Government and rejected the effort to stay the Seattle TRO.  In the EDVA case, Virginia filed its Reply Brief along with pages of supporting affidavits and public statements made by then candidate-Trump and others.

To use a football analogy, the Government stacked its defense for an all-out blitz; in doing so, the Government risked that if the states did have standing and the federal courts decided the Executive Order was reviewable, then there would be no remaining defenders who might tackle the states’ claims on the facts.

Ninth Circuit’s February 9th Ruling

Late on Thursday, the Ninth Circuit ruled 3-0 denying the Government’s Motion for an Emergency Stay Pending an Appeal of the Seattle TRO.

The Opinion first batted down the argument that Washington and Minnesota did not have standing.  The Court then turned to the crux of the Government’s position, that the federal courts could not review the Executive Order.  The Opinion rejects the Government position: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”  From there, the Court marches through the legal test and concludes that the Government has not met its burden to stay the TRO.

The Seattle TRO stands as a nationwide ban on enforcement of the key parts of the Executive Order.  The Government argued that the ban, even if upheld in part, was overbroad. The Ninth Circuit responded simply:  “[W]e decline to limit the geographic scope of the TRO.”

Judge Brinkema’s February 13th Order and Opinion

In a one-hour Friday morning hearing before a packed courtroom, Judge Brinkema heard arguments on Virginia’s Motion for a Preliminary Injunction in Aziz v. Trump.  Her Minute Order noted only that she was taking the matter “Under Advisement” and she would rule shortly.  The judge’s questioning of counsel, as reported by USA Today, highlighted a “startling” lack of evidence that travelers from the seven Muslim-majority countries represented a specific national security threat.  The judge, sua sponte, read from the joint affidavit by former national security officials who stated that they were “unaware of any specific threat” posed by travelers from the seven countries.  Following the hearing, the Government had few, if any, reasons to believe it might prevail when Judge Brinkema ruled.

Judge Brinkema’s Order and 22-page Opinion were released late on Monday, February 13, 2017.  The Order grants Virginia’s requested Preliminary Injunction, albeit without nationwide effect.  (For this limited scope, Judge Brinkema explains, “To avoid any claim that the preliminary injunction to be entered in this litigation is defective because of overbreadth, this Court declines the Commonwealth’s invitation to impose broader relief.”)  The Order bans enforcement of Section 3(c) of the Executive Order as applied only to Virginia residents and students who hold Green Cards or have otherwise valid visas.

Unlike the Seattle case, Aziz v. Trump followed an orderly procedure from TRO to Preliminary Injunction in the EDVA, with the opportunity for adequate briefing and presentation of evidence.  Virginia had even filed comprehensive Proposed Findings of Fact.  Indeed, Judge Brinkema’s Opinion includes an eight-page Findings of Fact section.

A year from now, the details of Judge Brinkema’s Opinion will be mostly forgotten.  Her dispatch of the Government’s lead argument that the Executive Order is not reviewable by the federal courts may, however, be long discussed.  The judge writes:

Maximum power does not mean absolute power.  Every presidential action must still comply with the limits set for Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.

The Opinion even references Marbury v. Madison, probably the first case studied in Constitutional Law class.  

The EDVA Opinion does not discuss Virginia’s standing other than to reference Judge Brinkema’s Order and Opinion from February 3rd granting Virginia’s Motion to Intervene.  In the progression through the legal standard for preliminary injunction, the Opinion states that “[t]he Commonwealth had produced unrebutted evidence supporting its position that it is likely to succeed on an Establishment Clause claim.”  There is no discussion of Virginia equal protection, due process, or statutory claims except in a footnote where the Court explains that “[B]cause the Commonwealth has established a likelihood of success on its Establishment Clause claim, the court does not need to address [the other claims].”  The Court concluded that Virginia proved sufficient bases for the Preliminary Injunction Order.

Summary and Status

The Immigration Executive Order, issued only 2½ weeks ago, is now the subject of more than 40 lawsuits.  The drama began when international flights landed at JFK Airport and then at Dulles Airport—passengers who boarded the flights holding valid Green Cards and visas learned that an Executive Order issued after take-off blocked their legal entry into the United States.

In Aziz v. Trump, the EDVA case, the initial parties were the Aziz bothers and other travelers who were blocked from entry, denied legal counsel, and almost immediately placed on returning flights.  As the case moved forward, the parties shifted and the issues narrowed.  The Commonwealth of Virginia sought to intervene.  Soon, in both the EDVA litigation and in the Seattle case, the states had the leading roles, and the issues focused on the states’ standing and whether the federal courts could review the Executive Order.  The Ninth Circuit and now the EDVA have confirmed that the states do have standing.  And, perhaps most significantly, the courts have emphatically rejected the Government’s argument that this Executive Order is beyond review by the federal courts.

The Seattle case has returned to the district court with the initial nationwide TRO banning enforcement of most of Sections 3 and 5 of the Immigration Executive Order in place.  In a new order issued this morning, the Seattle district judge noted that the Ninth Circuit construed the TRO as a preliminary injunction, and thus he has dispensed with further consideration of a preliminary injunction and has ordered the parties “to continue with other aspects of this litigation.”

Meanwhile, after 112 Docket entries and appearances by 28 amici parties, Judge Brinkema’s more limited Preliminary Injunction Order may now be appealed to the Fourth Circuit.

Week 2 in the EDVA Drama Over the Immigration Executive Order: An Update on the Charged Immigration Issues Brewing in Judge Brinkema’s Court

While national media attention has focused on tonight’s hearing before the Ninth Circuit regarding President Trump’s immigration Executive Order, there are still proceedings in the Eastern District that could become center stage.  This Blog post is the second post tracking the legal events in the EDVA case of Aziz at al. v. Trump, the challenge to the January 27th Immigration Executive OrderLast week’s post covered the sprint from the January 28th initial Habeas Corpus Petition filing to the first courtroom confrontation on Friday morning, February 3, 2017.  This week, the focus shifts to the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order, but also with an eye on parallel proceedings in the Seattle federal court and the Ninth Circuit.

Friday’s Orders in EDVA, Seattle, and the Ninth Circuit

Before the close of business on Friday, February 3, 2017, Judge Brinkema released her Order and Memorandum Opinion covering the issues argued that morning in Aziz v. Trump, Case No. 1:17cv116—LMB/TCBThe Order and Opinion continued her earlier Temporary Restraining Order (TRO) to Friday, February 10th, and set the stage for the Court’s consideration of the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order.

Meanwhile, 2,500 miles away in the Seattle federal court and before the Ninth Circuit, a broader set of issues advanced.  The Seattle judge, in Washington v. Trump, 2:17cv141, issued a TRO that barred enforcement of both Section 3(c) and most of Section 5 of the Executive Order.

The Government sought emergency relief from the TRO in the Ninth Circuit Court of Appeals.  On Saturday, February 4th, the appellate court denied the Government’s request for emergency relief, but ordered the parties to file briefs on Sunday evening and on Monday.  After the expedited briefing, the Ninth Circuit scheduled a telephonic hearing for later this evening (Feb. 7th) on the Government’s Motion for a Stay of the underlying TRO.  A ruling is expected shortly, most likely within a few days.

The Immigration Executive Order

An Executive Order is technically not legislation but instead a presidential directive to executive agencies as to how to enforce certain laws.  The core of the January 27th Immigration Executive Order: (1) calls for a review by Homeland Security (in consultation with the Department of State and the Director of National Intelligence) of the U.S. visa-issuance procedures, (2) in Section 3(c), puts a 90-day ban on entry (with limited exceptions) on individuals from seven Muslim-majority countries (the ban on persons from Syria is indefinite), and (3) in Section 5, suspends for 120 days the U.S. Refugee Admissions Program.  (An added provision appearing immediately after the travel ban calls for the government to develop a “uniform screening standard and procedure” for all individuals seeking to enter the United States.  Applied literally, this appears to require all visitors to go through the same screening measures, regardless of where they come from or how long they intend to stay.  This added provision is not the subject of either the EDVa or Seattle proceedings.)

Section 3(c) is the lightning rod for the current Aziz v. Trump litigation.

EDVA Proceedings and Posture

Judge Brinkema’s February 3rd Orders granted Virginia’s Motion to Intervene.  The Court also permitted intervention by a second set of individual plaintiffs.  The judge continued her Saturday Night TRO to February, February 10th.  Under FRCP Rule 65(b)(2), a TRO’s duration cannot exceed 14 days.  Thus, Judge Brinkema will hear argument on Virginia’s Preliminary Injunction Motion on February 10th.

Virginia’s brief targets Section 3(c) of the Executive Order.  The Commonwealth filed its Complaint on February 3rd.  Its Preliminary Injunction Motion and brief were filed the day before.  The Government’s brief is due early this week.

Virginia’s argument is first that Section 3(c) is too broad.  As written, the section bars visa and Green Card holders from seven Muslim-majority countries from entry into the U.S. for 90 days.  The Virginia brief cites U.S. Supreme Court authority holding that Green Card holders have due process rights, and the Executive Order strips them of their rights without an available process.  The Virginia argument extends these rights to certain visa holders as well.

The second argument contends that the Executive Order was “motivated by animus towards Muslims.”  The brief argues that the directives are presumptively unconstitutional and should be held to strict scrutiny.

The expected Government response will track arguments in the Government’s Ninth Circuit brief described below.

Seattle Federal Court and the Ninth Circuit

As has been widely-reported in the national press, on February 3rd, a Seattle federal judge granted a TRO sought by the States of Washington and Minnesota.  His TRO is much broader than Judge Brinkema’s Order—the Seattle TRO bars enforcement of Section 3(c) and most of Section 5 of the Executive Order.   Additionally, the Seattle TRO is granted “on a nationwide basis” while Judge Brinkema’s current Order is narrowly written.  The parties in the Seattle matter were directed to submit no later than the end of February 6th a briefing schedule.  In an email from the Washington Solicitor General to the Department of Justice counsel, Washington State proposes that the Preliminary Injunction briefs be due on February 9, 15, and 17 in the Seattle district court.

Meanwhile, the Government sought from the Ninth Circuit an immediate stay of the Seattle TRO.   On Saturday, February 4th, a two-judge panel denied the emergency motion.  The Court ordered Washington and Minnesota to file briefs by 11:59 p.m. PST on Sunday night.  The states filed.  The Government’s Reply came in right at the 3 p.m. PST deadline.

The Washington/Minnesota Brief in Opposition to the Motion for a Stay includes a supporting declaration signed by former members of the Obama Administration, including Madeline Albright, John Kerry, Michael Hayden, Janet Napolitano, Leon Panetta, and Susan Rice that makes, among other things, a policy argument.   The affidavit concludes by alleging that “the Executive Order does not further—but instead harms—sound national security and foreign policy.”

The Government’s response argues from the start that “the Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees.”  The response also attacks the Seattle TRO as “vastly overbroad.”

If the Ninth Circuit denies the Government’s Motion for a Stay, then a route to the U.S. Supreme Court theoretically opens.  But the more likely result is that the case remains at least for another ten days in the Seattle district court—the Seattle judge’s TRO lasts at most 14 days, so he should rule on the Motion for Preliminary Judgment, probably close to February 17th.  That Order could then go back to the Ninth Circuit, and then possibly to the U.S. Supreme Court.

State Department and Homeland Security Press Releases

At the same time as the legal wrangling, the State Department issued a press release stating that it had restored more than 50,000 cancelled visas and that the “provisional revocation [of visas pursuant to the Executive Order] is now lifted, and those visas are now valid for travel to the United States, if the holder is otherwise eligible.”

Similarly, Homeland Security announced via its website on February 4th that it had “suspended all actions to implement the Immigration Executive Order and will resume standard inspections of travelers as it did prior to the signing of the travel ban.”  But the press release added that the Justice Department will continue to defend the Executive Order.

The Preliminary Injunction Hearing on Friday, February 10th

Assuming that the Ninth Circuit denies the Government’s Motion for a Stay, the national focus likely shifts to the EDVA proceedings because of the Preliminary Injunction hearing set for this Friday before Judge Brinkema.  This hearing comes at least one week before the issues regarding the Executive Order would likely return to the Seattle federal courtroom.

Unless the Ninth Circuit provides a comprehensive opinion in response to the Motion to Stay the Seattle TRO, a ruling and opinion from Judge Brinkema will be the first substantive ruling on provisions of the Executive Order.  We might then expect the Government to take the issue immediately to the Fourth Circuit.

Thus, it is very possible that the national spotlight will suddenly shift to Alexandria after tonight’s telephone hearing before the Ninth Circuit.  If you are a practitioner appearing in federal court in Alexandria for Friday motions, be prepared for a heavy police presence, protesters, and a long line at security.

The EDVa Drama Over the Immigration Executive Order: From IAD to Courtroom 701 in Seven Wild Days

News reports have followed the short saga of the Immigration Executive Order issued on Jan. 27th by President Trump, but the legal saga culminating in this morning’s hearing (Friday, Feb. 3rd) before Judge Brinkema is remarkable, even by EDVA standards.

Earlier this morning, the first confrontation over the Executive Order unfolded in Judge Brinkema 7th Floor courtroom in Aziz at al. v. Trump, Case No. 1:17cv116—LMB/TCB.  As filed, the matter addressed the detainment of two brothers, both Green Card holders, traveling through Dulles Airport on their way to meet their father, who lives in Flint, Michigan.  The plight of the Aziz brothers appears now to be resolved, but the Commonwealth of Virginia has sought to intervene to push the broader issues with the Executive Order.

The issues before Judge Brinkema included the original parties’ Motion for Abeyance, Virginia’s Intervention Motion, the Motion of a second set of Plaintiffs to Intervene, and a Rule to Show Cause.  The Minute Order shows that the judge granted both Motions to Intervene and the original parties’ Motion to Hold Claims in Abeyance.  The judge denied, however, the Motion for the Rule to Show Cause.

The case thus continues with the Commonwealth of Virginia seemingly in the driver’s seat on the Plaintiffs’ side.

Friday Afternoon Executive Order

President Trump signed his Executive Order at about 4:30 PM on Friday, January 27, 2017.  As of the time of signing, flights from the Middle East heading to various US international airports were already in the air with arrivals beginning on Saturday morning.  This meant that a number of passengers from the seven foreign nations identified in the Executive Order were flying into an uncertain situation.  These passengers held Green Cards and valid student/work visas – without this advanced-entry approval, they never would have been permitted to board the international flights in the first place.

Saturday Morning—Incoming Flights

The first of the affected flights landed at JFK Airport early on Saturday, January 28th.  About 45 minutes later the first affected flight landed at Dulles Airport.  On board the Dulles fight were the two Aziz brothers, Yemeni nationals who were granted Green Cards because their father is a US citizen.  The brothers were connecting through Dulles on the way to Michigan where their father was planning to meet them.

The Aziz brothers and as many as 60 other arriving passengers were detained by the US Customs and Border Protection (CBP) and blocked from leaving a designated area at Dulles Airport.  CBP is an agency within the US Department of Homeland Security (DHS).

Habeas Petition and TRO/Injunction

Apparently anticipating a showdown, a group of immigration lawyers gathered at Dulles Airport.  By questioning passengers who were not detained, the lawyers confirmed that the Aziz brothers and others were in fact detained.  There was also concern that this group of detainees were being questioned by CBP officers and possible arrangements had been made to return the detainees to the countries from which they came.

The lawyers sought access to their new clients, but the CBP denied all access.

Late that afternoon, a Petition for Writ of Habeas Corpus and Complaint for an Injunction were filed in the Alexandria federal court.  The filing sought a targeted TRO: first, the Petitioners asked that the attorneys be granted access to their clients, and second, that for a minimum of at least seven days the detainees not be removed from the United States.

At about 9:30 PM on Saturday night, Judge Brinkema signed a two-point Temporary Restraining Order.  The Order requires that “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.”  The TRO continues that “respondents are forbidden from removing petitioners–lawful permanent residents at Dulles International Airport–for a period of 7 days from the issuance of this Order.”

CBPs Saturday Night Defiance of the TRO

Copies of Judge Brinkema’s Order were delivered to the lead CBP officers at Dulles Airport.  The CBP officers apparently defied the federal court order–the lawyers who were to have access to their clients were again denied that access.  It also is the case that CBP put several, and perhaps many, of the detainees on return flights during the day on Saturday.

Sunday—Congressional Visitors to Dulles

On Sunday, January 29th, several members of Congress from the DC area, including Rep. Don Beyer, appeared at Dulles.  Beyer, in an affidavit later filed with the federal court, reported that “to my knowledge, not a single attorney was permitted access to any detained traveler.  My congressional colleagues and I were also denied access to detainees.”  Beyer concluded in his affidavit that “CBP’s continued enforcement of the Executive Order amounted to a constitutional crisis: four members of Congress asked CBP officials to enforce a federal court order and we were all turned away.”

Commonwealth of Virginia’s Intervention

On Tuesday, the Commonwealth of Virginia sought to intervene through its Attorney General, Mark Herring.  The next morning, Virginia filed with the federal court a Motion for a Rule to Show Cause, essentially requesting that the recipients of the TRO Order be required to explain their defiance or be held in contempt of court.  The Virginia pleadings sought a hearing on Friday, February 3rd.   Virginia additionally moved for a Preliminary Injunction to enjoin enforcement of Section 3(c) of the Executive Order, the broader section of the Executive Order.  Judge Brinkema set the Virginia Intervention Motion and the Motion for the Rule to Show Cause for a hearing this morning (Feb. 3rd).

On Wednesday, the U.S. Attorney entered an appearance.  Not long afterwards, the original parties filed a Joint Request to Hold Claims in Abeyance.  The pleading states that the parties “have a signed agreement to resolve Petitioner’s claims against Defendants.”   For this reason, the parties asked that Petitioner’s claims in this case be held in abeyance.

Thursday’s Pleadings Avalanche

The pleadings continued to pour in on Thursday—the PACER Docket Sheet lists twelve entries.

Virginia offered an additional Declaration in support of its motion for a Rule to Show Cause.  Virginia also filed its Opposition to the Joint Motion to Hold Claims in Abeyance. The Virginia Brief argues that “the Government’s conduct suggests that it may be maneuvering to delay the case in order to avoid having to account for whether it complied with this Court’s Temporary Restraining Order.”  The argument continues, “the Government has been holding press conferences claiming that it promptly complied with this Court’s TRO. It has time to explain why it appears that not even a single LPR [Green Card or student/work visa holder] detained at Dulles has been allowed to see a lawyer.”

The Virginia position is that while the claims of the Aziz brothers appear to be on their way to resolution, the issues regarding the constitutionality of the Executive Order still must be adjudicated.  Then, a second group of individual plaintiffs filed their own Motion to Intervene.

Just before 7 PM, Virginia filed its Brief in Support of Preliminary Injunction.  The US Attorney then filed its Opposition to Virginia’s Intervention and Opposition to the Rule.

Friday Morning Hearing

The Court’s schedule for this morning’s hearing showed Aziz v. Trump as the only remaining matter on Judge Brinkema’s 10AM docket.  Local authorities warned of traffic backups in the vicinity of the Alexandria federal courthouse.

The Court’s Minute Order confirms a 64-minute hearing and provides a cryptic summary of the rulings.  Judge Brinkema granted the joint Motion to Hold Matters in Abeyance—this perhaps resolves the Aziz brothers claims.  But the judge granted Intervention to the Commonwealth of Virginia and to the second Plaintiffs (though the Motion for a Rule to Show Cause was denied).  The Preliminary Injunction Hearing remains on the calendar for next Friday, February 10th.

A wild week in the Rocket Docket, and with the potential for more to come next week.

The Bench: the Judges of the Alexandria Division

Have you wondered who are the judges for the Alexandria Division of the U.S. District Court for the Eastern District of Virginia?  How are the judges appointed or selected?  How long has each served?  When may a federal judge shift to Senior Status?  And, when can federal judges retire?  For answers to some of these questions and more, read on.

We now have eleven Article III authorized judgeships for the Eastern District of Virginia.  This number is set by statute (as recently as 1966, the Court had only four authorized judgeships).  Four District Judges are assigned to the Alexandria courthouse.  We have Magistrate Judges in each of the Divisions in the District, including five Magistrate Judges in Alexandria, and we have Bankruptcy Judges in each Division as well.

Article III District Judges

Appointment/Confirmation.  Article III judges are appointed by the President and confirmed by the Senate.  Once confirmed, a federal District Judge has the “judicial power of the United States.”   Article II of the U.S. Constitution gives the President and the Senate concurrent authority over nominations of executive officers and members of the Federal Judiciary.  Specifically, the President “shall nominate, by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court, and all other Officers of the United States.”

The judicial selection process typically begins with a “senatorial courtesy” recommendation from the home state senators.  The senior senator from the President’s party forwards the nomination to the White House. There is no set process for the situation that we will soon have in Virginia where the two senators are from a different party than the President.   Nonetheless, the “blue slip” policy of the Senate Judiciary Committee affords every senator at least a consultative role in the judicial appointments for his or her home state.

After the President has made an appointment, the Senate Judiciary Committee considers the nominee. If a majority of the Committee votes in favor of the nominee, then the nomination goes to the floor of the Senate. A simple majority of the Senate confirms the nomination.   This sounds streamlined, but as we know, the reality of judicial appointments and confirmations is something else.

The District’s Chief Judge.  The Chief Judge of the Eastern District is Rebecca Beach Smith.  Chief Judge Smith sits in Norfolk.  Her duties as Chief Judge are mostly administrative, but she presides at all meetings of the judges.  She became the Chief Judge in 2011 and is now 5 years into her 7-year term.  By statute, the Chief Judge is the senior judge in terms of his or her commission, but who is not yet 65 years old.  See 28 USC § 136.   Also, a Chief Judge serves only a single term.  In 2018, when Chief Judge Smith steps down from the position, most likely Judge Mark Davis (who also sits in Norfolk) will have the position.  He is the senior judge among the three judges in the District who in 2018 will be younger than 65.

Alexandria Division Article III Judges.  There are four Article III judges assigned to the Alexandria Division.  Judicial assignments (referred to as “duty stations”) are typically to a courthouse within a judicial Division.  See 28 USC 456(d).  The chart below shows the Alexandria Division District Judges, their ages, and the year each judge came to the federal bench:

Leonie Brinkema Age 72 1993
Gerald Bruce Lee Age 64 1998
Liam O’Grady Age 66 2007
Anthony Trenga Age 67 2008

Judges Brinkema and O’Grady served as Magistrate Judges before appointment and confirmation as Article III judges.  The dates shown above are their confirmation dates as Article III judges.  Judge Lee served previously as a judge on the Fairfax Circuit Court.

Senior Judges on Alexandria Court.   We have three active Senior Judges in Alexandria. Article III judges may serve for life, but they have the option of taking Senior Status or retiring when certain service requirements are met.

Senior Status for a federal judge is a form of semi-retirement; a federal judge who moves to Senior Status continues to hold the full authority of an Article III judge, and may continue to serve full-time, but has the option of a reduced caseload if he or she chooses.   A District Judge may move to Senior Status if he or she satisfies the criteria of 28 U.S.C. § 371.  The Chief Judge of the Fourth Circuit then annually must certify a Senior Judge’s continuing compliance with the criteria.

Our three Senior Judges in the Alexandria Division are:

James Cacheris Age 83 1981 (Sr. Status — 1998)
Claude Hilton Age 76 1985   (Sr. Status – 2005)
T.S. Ellis, III Age 76 1987   (Sr. Status – 2007)

Judge Albert V. Bryan, Jr. is also a Senior Judge on the Court, but his status is “inactive.”

A  District Judge who is age 65 and has 15 years of judicial service qualifies for Senior Status.  This is the “Rule of 80”— 65 + 15.  For those who are counting, applying the basic criteria to the four District Judges of the Alexandria Division means that one of the judges is now eligible for Senior Status, and another will be eligible in 2017.  The Rule of 80 provides that for every year over age 65, a judge qualifies for senior status with one less year of experience.  This means that by 2019, all of our current Alexandria Division District Judges will be eligible for Senior Status.

Significantly, for purposes of counting judgeship positions, a judge who moves to Senior Status is treated as retired and therefore no longer fills one of the approved judgeships for the District.  For example, after Judge Hilton opted for Senior Status in 2005, he continued to serve full-time as a judge, but his status-change opened the seat that was eventually filled by Judge O’Grady.

District Judges may also outright retire.  If the retirement criteria are met, then a retired District Judge will continue to be paid 100% of his salary at the time of retirement.

Magistrate Judges and Bankruptcy Judges.

Magistrate Judges.  The Alexandria Division has five Magistrate Judges:

Theresa Buchanan 1996 3rd Term
John Anderson 2008 2nd Term
Ivan Davis 2008 2nd Term
Michael Nachmanoff 2015 1st Term
T. Rawles Jones, Jr. (retired in 2014; recalled)

Magistrate Judge Jones retired in 2014, but continues to serve part-time working with Judge Trenga on the Lumber Liquidators action (MDL No. 15:1md2627–AJT/TRJ).  His status is referred to as “recalled.”

Under the Federal Magistrates Act, 28 USC 636 et seq., an appointed Panel investigates candidates and reports to the Court, and then the judges of the District (include the active Senior Judges) elect a Magistrate Judge.   A full-term appointment is for eight years, and a part-time Magistrate Judge serves at most a four-year term.  Magistrate Judges Anderson and Davis were recently re-appointed to their second eight-year terms.

The authority of a Magistrate Judge is set by the federal act and delegated by the District Court.  Thus, most actions of a Magistrate Judge are reviewable by a District Judge.

Bankruptcy Judges.  There are two Bankruptcy Judges in the Alexandria Division, each serving a 14-year term. They are appointed by the U.S. Circuit Courts of Appeals.  (For example, in the Alexandria Division, it is the judges on the U.S. Court of Appeals for the Fourth Circuit who select the Bankruptcy Judges by majority vote.)

Judge Brian Kinney was named to the Alexandria Division of the U.S. Bankruptcy Court for the Eastern District of Virginia in 2011; his term runs to 2025.  Judge Robert Mayer is retiring from the Bankruptcy Court effective January 4, 2017.  Alexandria practitioner Klinette H. Kindred has been named as the second Bankruptcy Judge in the Alexandria Division, and she is expected to take the bench in early 2017.

Filing Deadline Changes: The Disappearance and then the Return of the 3-Day Cushion

On December 1, 2016, amendments to Fed. R. Civ. P. Rule 6(d) went into effect.  At the same time, amendments to EDVa Local Civil Rule 7(F)(1) also went into effect.  For practical purposes, the F.R.C.P amendments make ECF service good for nearly all purposes and eliminate the added 3-day cushion that applied to most response and reply filings.  The EDVa Local Rule revision adds back the otherwise lost three days.  While the overall consequence may seem insignificant, you should be alert to at least one nuance from these changes.

To appreciate the changes, we summarize below the F.R.C.P. Rule 6(d) amendment and the changes to Local Civil Rule 7(f)(1).  Then we revisit the Sprint Option provision in the standard Rule 16(b) Scheduling Order used in the Alexandria Division.  See R. Larson, “The 1-Week EDVa Discovery Sprint from Filing to Ruling in 7½ Days.”  As explained below, the combined new F.R.C.P. and Local Rule amendments provide some added coverage for the beloved Sprint Option.

FRCP Rule 6(d) Amendments — Good-bye 3-Day Cushion

In April 2016, the U.S. Supreme Court approved the F.R.C.P. Rule 6(d) amendment that removes electronic service from the modes of service under Rule 5(b) that allows an extra three days for responses.   The Rule before amendment provided:

(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).

The workings of this Rule for the most part simply extended the motion response and reply times by three days.  For example, a motion that provided 11 days for the response in fact provided 14 days because of the 3-day cushion that was automatically added.  Now, when the services is by ECF (which is covered as electronic service under Rule 5(b)(2)(E)), the 3-day cushion vanishes.

The amended version of the Rule looks almost exactly the same except a close look shows that subpart 5(b)(2)(E) has been erased.   This now-gone segment is where Rule 5(b) allows for electronic service, which we usually translate to mean ECF service.  A quick look at Rule 5(b)(2)(E) suggests that the electronic service provisions apply only if the receiving party “consented in writing” to electronic service.   You might conclude that the changes add to a big nothing because you perhaps could refuse to consent.  You may have forgotten, however, that when you registered for ECF filing (as all EDVa practitioners are required to do) you consented to electronic service.   The EDVA Complete E-Filing Policies and Procedures Manual provides in Chapter 4 that “[b]y participating in the electronic filing process, the parties consent to the electronic service of all documents and will make available electronic mail addresses for service.”

To this point in the analysis, the F.R.C.P. Rule 6(d) amendments effectively shorten the response and reply times for most motion pleadings.

Local Civil Rule 7(F)(1) Amendment — the 3 Lost Days Return

EDVa Local Civil Rule 7 covers local Motions practice.  Subpart (F)(1) provides for filing response and reply briefs, and until the new revisions took effect set the filing dates at 11 days and three days respectively.  But with the addition of the 3-day cushion, the effective response and reply dates have been 14 days and six days.  The Local Rule subpart read (until now):

(1)  All motions, unless otherwise directed by the Court and except as noted herein below in subsection 7(F)(2), shall be accompanied by a written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies. Unless otherwise directed by the Court, the opposing party shall file a responsive brief and such supporting documents as are appropriate, within eleven (11) days after service and the moving party may file a rebuttal brief within three (3) days after the service of the opposing party’s reply brief. No further briefs or written communications may be filed without first obtaining leave of Court. [Emphasis added.]

Absent modification of this Local Rule, the amendments to F.R.C.P. Rule 6(d) would result in significantly shorter response and reply times.

The EDVa amendments to Local Civil Rule 7(F)(1) substitute 14 days and three days as the new response and reply dates.  This Local Rule change was issued on extreme short notice—on November 17, 2016, only two weeks ago.  So we are essentially back where we started.  The major difference is that we have eliminated a provision appropriate to the time when nearly all pleadings traveled by snail mail.

When practicing in other Districts, be sure to check the Local Rules to see whether the EDVa changes have been adopted in the other District.   Failure to check could potentially result in painful consequences.

The Sprint Option and the Alexandria Division’s Rule 16(b) Scheduling Order

The give/take changes described above are not entirely neutral.  One difference is that the combined new F.R.C.P. and Local Rule amendments provide added coverage for the Sprint Option.

What we refer to as the “Sprint Option” is a creature of the standard Alexandria Division Rule 16(b) Scheduling Order, and it is not a Local Rules provision.   The standard Scheduling Order issued by the Alexandria magistrate judges includes this language:

In order to provide for the prompt resolution of non-dispositive matters, a non-dispositive motion may be filed and served by no later than 5:00 p.m. on a Friday and noticed for a hearing at 10:00 a.m. on the following Friday. Under this expedited schedule, a response must be filed and served by no later than 5:00 p.m. the Wednesday before the hearing and any reply should be filed and served as early as possible on Thursday to give the Court time to review all pleadings before the hearing. At the moving party’s discretion, a non-dispositive motion may also be filed and noticed for a hearing in accordance with the briefing schedule provided in Local Civil 7(F)(1) discussed above in order to provide additional time for briefing and consideration by the Court. [emphasis added]

In short, file and serve by 5 PM on Friday, and you can be before the Court the next Friday morning.

This is a key provision that greatly disturbs lawyers from other districts, but also one that keep the Rocket Docket roaring forward.  The 3-day cushion, however, had the potential to disrupt this process.  To stay on the Sprint Option track, a party had to avoid the 3-day cushion in prior F.R.C.P. Rule 6(d).  This required service of the pleading by “handing it to the person” to be served, or by leaving the pleading at the person’s home or office.   For practice in the Alexandria Division, this was a major impediment if the opposing counsel (or local counsel) was anywhere outside of Alexandria.

The above-describe challenge goes away with the combined F.R.C.P. Rule 6(d) and EDVa Local Rule 7(F)(1) amendments.  ECF service by 5:00 PM on Friday (with the NEF returned—service time is when the NEF issues, and not when you hit the last ECF button) suffices, and the Sprint Option is now more widely available without concerns about the in person service and the 3-day cushion.  The same applies to the Sprint Option responses and replies—ECF filing is adequate service without adding the 3-day cushion.

Handling Overlapping and Duplicative Damages

In a recent case, Judge Liam O’Grady astutely handled in his Jury Instructions and a Special Verdict Form the prospect of a jury’s duplicative and overlapping damage determinations.  He then resolved the parties’ dispute on overlapping damages when he decided post-verdict remittitur motion.  This case provides a roadmap for practitioners on how to handle similar problems in future cases.

Multi-count Complaint and Overlapping Damages

The case of Hair Club for Men, LLC v. Ehson et al, Civil Action No. 1:16cv236–LO/JFA involved a two-year covenant not-to-compete.  Plaintiff (a former employer) sued to enforce the covenant against a departing employee and her new employer.  Plaintiff sought not only an injunction but also considerable damages.

The Complaint alleged the usual suite of claims found in covenant-not-to-compete cases. The leading claim was for Breach of Contract, followed by claims for Trade Secrets Misappropriation, Tortious Interference, Unjust Enrichment, and Breach of Fiduciary Duty.

The case narrowed at summary judgment when the Court held that the defendants were liable on certain counts.  Judge O’Grady ruled that the non-compete covenant was enforceable, and that, as a matter of law, the ex-employee breached her fiduciary duty.  But still the Trade Secrets and Tortious Interference claims had to be tried, and the measure of damages for all claims was left open for trial.  Perhaps surprisingly, the case did not settle after these rulings.

Seven months after filing of the Complaint, the case went to a jury trial for four days.  The jury’s Special Verdict Form awarded Breach of Contract damages of $156,096, and then awarded damages of $258,330 on each of the three remaining counts.  Additionally, the jury responded to the question of whether the damages awarded were duplicative by circling “Yes.”

Jury Instructions and Special Verdict Form

Judge O’Grady’s jury instructions navigated through the duplicative damages issue, and the Special Verdict Form focused the jury on the key question of duplication.  Jury Instruction No. 39 addressed the possibility of overlapping damage awards:

In this case, Hair Club seeks to recover the same type of damages for lost profits on its breach of contract, breach of fiduciary duty of loyalty, misappropriation of trade secrets and tortious interference with contract and business advantage claims. A party is not entitled to multiple recovery for its losses. However, if you find that Hair Club has proved every element of each of its damages, and is entitled to recover for its claimed losses, you will be asked whether the recovery is duplicative, so that Hair Club does not recover more than it is entitled.

On the Special Verdict Form, Question No. 7 asked “Are any of the answers to questions 1, 3, 5, or 6 duplicative?”, followed by a simple “Yes/No” option.  (The four identified questions corresponded to Plaintiff’s four separate remaining counts.)

Dealing with Duplicative Damages

Despite the simple “Yes/No” question, the jury’s verdict left uncertainty as to the overall damages.  If the Court simply added all of the multiple damage awards, then the result would be a judgment for $934,086.  Plaintiff agreed that the jury intended that the three awards of $258,330 were for the same conduct and damage.  But Plaintiff also argued that the Breach of Contract damages should be added to the common damages, for a total damage award of $414,426.  Judge O’Grady, however, concluded that the appropriate total damage award was $258,330.

Virginia law prohibits the award of duplicative damages “when the claims, duties, and injuries are the same.” Wilkins v. Peninsula Motorcars, Inc., 266 Va. 558, 587 S.E.2d 581 (2003).  Judge O’Grady added that the “two claims are not duplicative if the conduct underlying the claims is different.”  For this, he cited Advance Marine Enterprises, Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 (1998), and his analysis tracks the Wilkins opinion.  The trial court must “evaluate whether multiple damage awards constitute impermissible double recovery” and that under Virginia law it is the responsibility of the trial court in reviewing a verdict to supervise “the damage awards to avoid double recovery.”

Plaintiff relied on Advanced Marine to argue that the damages were in part separate and therefore should be added to yield the aggregate damage award, but Judge O’Grady distinguished Advance Marine.   In that case, the plaintiff proved a common set of compensatory damages under separate claims for Trade Secrets Misappropriation and Business Conspiracy.  While the plaintiff was limited to only one set of compensatory damages, the plaintiff was allowed to recover both punitive damages under the Trade Secrets claim and to treble the compensatory damages under the Business Conspiracy claim.

Judge O’Grady summed his conclusion by stating that “compensatory damages for the same injury, based on the same evidence, should be awarded only once.  This was consistent with Advance Marine.  This rule holds even if the injury is articulated in multiple causes of action with separate burdens of proof.”  But equally important, the judge ruled that it was his responsibility to make the determination using the jury’s answers on the Special Verdict Form.

Summary

The dilemma of overlapping and repetitive damages arises frequently.  In the case before Judge O’Grady, the jury considered damages on four separate counts.  The trial evidence, however, addressed the damages as a single compensatory loss.  When the jury answered that the damages were duplicative, it was then the trial judge’s responsibility to resolve the parties’ disagreement on the extent of the duplication.

Too often, a jury’s verdict states only its liability findings and separate awards on multiple counts.  In this situation, a judge ventures into potentially dangerous territory if he or she imputes that the damages are duplicative.

A question for both trial lawyers and judges is how best to manage this issue to steer away from the quagmire.  Judge O’Grady’s jury instruction in Hair Club cleanly instructs on duplicative damages.  He coupled his Instructions with the simple Special Verdict Form question about duplication.  In Hair Club, this seems to have worked well, and perhaps is the model for multi-count cases where the claimed damages overlap.

New Trend in Attorney’s Fees Declarations?

As the judges of the Eastern District continue to differ regarding reasonable hourly rates for attorneys, practitioners need to be aware of a potential new trend regarding declarations supporting or opposing petitions for attorney’s fees.  Unfortunately, that new trend appears likely to make such petitions more detailed and time-consuming – and therefore, more expensive.

Traditionally, declarations supporting a petition for attorney’s fees in the Eastern District have followed a familiar pattern: An outside attorney reviews the hourly rates charged, the number of hours charged, the docket sheet, and selected motions/briefs.  The resulting opinions were usually based upon a “general” review of or familiarity with the litigation.  These reviews were not usually “deep dives” into the documents, pleadings, or billing records for a good, simple reason:  keeping costs down.

This custom may need to change, based upon the recent case of Salim v. Dahlberg, 1:15-cv-468 LMB / IDD, 2016 WL 2930943 (E.D. Va. May 18, 2016), which was covered by the EDVA Update here.  In that case, Judge Leonie M. Brinkema of the Alexandria Division was faced with a petition for attorney’s fees after the plaintiff prevailed on part of his civil rights claim.  The petition was supported by declarations from six leading attorneys, all whom have extensive experience in the Eastern District.  As Judge Brinkema said in her opinion, all six were “well-known to and well-respected by the Court,” and all “summarily conclude[d] that the hourly rates charged and hours worked were reasonable.”

In opposition, the defendant submitted one declaration by attorney Wayne G. Travell, a partner with Hirschler Fleischer’s Tysons office.  Despite the lop-sided number of supporting declarations, Judge Brinkema rejected much of the plaintiff’s fee petition (along with the conclusions in the six supporting declarations) and essentially adopted much of the opinion and analysis expressed by Mr. Travell.

Mr. Travell’s declaration is extensive, at 18 pages long with 47 paragraphs.  He discusses in detail the steps he took to form his opinion (including documenting the telephone calls he had with the respective counsel).  He recounts the applicable law, and then provides a detailed recitation of the facts (citing and quoting from the pleadings in the case).  The heart of his declaration, however, appears to be nearly eight pages of detailed examination of the plaintiff attorney’s time records, including identifying alleged instances of double-billing, block-billing, and vague entries.

In her opinion, Judge Brinkema sided with Mr. Travell’s declaration because he “actually reviewed counsels’ billing records, provide[d] a detailed analysis of those records, discusse[d] the specific issues involved in the case, and evaluate[d] the work performed with respect to those issues.”  In contrast (according to the court’s opinion), the six supporting declarations were unpersuasive because none went into a “detailed analysis of plaintiff’s counsels’ time sheets; instead, the declarants base their conclusions almost exclusively on a review of the pleadings and of [plaintiff counsel’s] declaration.”

Mr. Travell’s declaration is another example of judicial pushback in the Eastern District against excessive attorney hourly rates (or, at least hourly rates perceived as excessive by the bench).  But it also likely signals that some judges will more closely scrutinize petitions for attorney’s fees, including attorney declarations that support and oppose those petitions.  For this reason, Mr. Travell’s declaration is likely a roadmap for future petitions in the Alexandria Division, if not throughout the Eastern District.  And the irony is straight-forward:  While the intent may be to hold down hourly rates, the added expense of more detail in such declarations will ultimately increase the cost of litigation overall.  But regardless of this impact, practitioners need to be aware of this possibility.

Is there a New Cap on Recoverable Attorney Rates in EDVA?

There is yet further disagreement among the judges of the Eastern District regarding reasonable attorney hourly rates.  As we noted in a previous EDVA Update here, this disagreement is manifesting itself most frequently in the Alexandria Division, as judges there confront (and push back against) the higher hourly rates frequently charged by larger law firms in the Northern Virginia/ DC metro area.

Today’s example of the disagreement comes in the recent case of Integrated Direct Marketing, LLC v. Drew May, et al., 1:14-cv-1183, 2016 WL 3582065 (E.D. Va. June 28, 2016).  In this case, Judge Leonie M. Brinkema of the Alexandria Division of the Eastern District invited a plaintiff to file a motions for sanctions and attorney’s fees after successfully demonstrating that the defendant made materially false statements in both an affidavit and during courtroom testimony.  But after the plaintiff petitioned for over $63,000 in attorney’s fees, Judge Brinkema strongly criticized the hourly rates and record keeping of plaintiff’s counsel, and she cut the fee award down to only $17,000.

To justify their hourly rates, plaintiff (represented by attorneys from both the DC and Connecticut offices of Ogletree, Deakins, Nash, Smoak & Stewart, PC) relied upon the matrix of hourly rates approved by Judge Gerald Bruce Lee in Vienna Metro (discussed in a prior EDVA Update here).  But Judge Brinkema rejected the Vienna Metro matrix.  By doing so, she sided with Judge T.S. Ellis’s opinion in Route Triple Seven (also discussed in a prior EDVA Update here) in the ongoing dispute regarding hourly attorney rates.  Below is a summary of the experience levels of each attorney, the hourly rates sought by the plaintiff, and the rates awarded by Judge Brinkema:

Attorney’s Legal Experience

Requested Hourly Rate

Awarded Hourly Rate

30 years $ 545 $ 450
9 years $ 395 $ 350
6 years $ 335 $ 275
5 years $ 320 $ 250

To set these hourly rates, the court followed the rates determined by Judge Ellis in Route Triple Seven.  Significantly, Judge Brinkema did not rely upon any other expert witness testimony or evidence to set these hourly rates.  (And, as we saw in the Route Triple Seven case, there the court relied upon its own “experience” to determine an appropriate reasonable rate.)  These hourly rates are in sharp contrast to the $550 – $600 hourly rates approved by Judge Lee in Vienna Metro.

It is clear that a revolt against high hourly rates (or, at least, rates perceived as high) is brewing among many judges of the Alexandria Division of the Eastern District.  It also appears that a hard cap of approximately $450 – $500 for an experienced attorney’s hourly rate is forming, at least in the eyes of several judges who have rejected the Vienna Metro matrix.