South Carolina Lawyers Weekly, February 28, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 5 ■

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Past drugrelated crimes too prejudicial in trucking crash ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

You don’t want to be in the room where this happens Since 2020, Brown has incorporated information on calendar fraud into cybersecurity presentations and

A trial court was right to disallow evidence that a truck driver who caused a highway crash had had past convictions for drug-related offenses because they had no probative value and didn’t show that his employer had engaged in negligent hiring and retention, the South Carolina Court of Appeals has ruled.

Isabelle MacKenzie was injured while riding her motorcycle in 2016 because the truck driver, Charles Barr, had blocked the roadway with his logging truck. Barr said he’d stopped on the left side of the road because his tire was flattening and he went to a friend’s house nearby, believing that the friend could help inflate the tire. The friend wasn’t home, so Barr pulled the truck back onto the highway, but he failed to completely cross before a vehicle rounding the curve slammed into him. MacKenzie, who’d been following the vehicle, couldn’t avoid the crash.

MacKenzie was awarded nearly $180,000 in actual damages, but had sought to include part of Barr’s criminal record to support her employment-related claims against Barr’s employer, C&B Logging, and her request for punitive damages. She argued that Barr’s “laundry list” of moving violations and drug-related

See Phishing Page 5 ►

See Drug History Page 5 ►

Hackers are finding a new weak point in calendar invites ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com When COVID-19 struck, calendar software and videoconferencing became a viable, popular means of doing business. Unfortunately, cybercriminals got the memo and have begun pursuing a new and particularly dangerous line of attack.

In recent years, internet bad guys have increasingly targeted law firms and their valuable corporate and customer data, looking to profit by weaseling into networks and injecting themselves into others’ financial affairs.

Email attacks have long been the

hacker’s preferred modus operandi, and remain so even today. But most people have become rightly more suspicious of emails, so today’s hackers, like the savvy businesspeople they are, are casting wider nets and chasing multiple revenue opportunities.

Calendar fraud attacks started appearing a few years ago, but particularly since the pandemic started, these efforts to infiltrate platforms such as Zoom, Microsoft Teams, WebEx, and Google Calendar are wreaking havoc on unwitting victims.

“We’re on these [videoconferences] a lot more than we used to be, and if

something’s on our calendar, we just kind of trust that we put it there or that someone in our office or someone else who had access put it there,” said Patrick Brown, vice president of Enterprise and Operational Risk Management at Lawyers Mutual of North Carolina.

Unfortunately, that may not always be the case.

Circumstances supported warrantless cellphone ‘ping’ ■ BY NICHOLAS A. HURSTON Exigent circumstances supported a warrantless request to a cellphone provider for a “ping” of the defendant’s cellphone, the 4th U.S. Circuit Court of Appeals has held in a case of first impression.

Prosecutors had argued that the man’s violent criminal history and armed threats of harm to civilians and police allowed them to consider the defendant “an extreme urgent threat to the community,” which justified the warrantless search.

Senior Judge Barbara Milano Keenan agreed

with the lower court’s statement that even a brief delay in apprehending the defendant placed several individuals at significant risk of harm.

“Based on the record before us, we hold that the officers reasonably concluded that use of the ‘exigent form’ was necessary to obtain a prompt response from the cell phone provider when an armed and dangerous suspect was at large,” Keenan wrote in a Feb. 1 opinion.

The case stemmed from domestic violence allegations reported by Jaquanna Foreman, who was defendant Erick Hobbs’s former girlfriend.

Foreman was at home with her 7-year-old

daughter when Hobbs used a handgun to forcibly enter her home and retrieve a television set.

Before leaving, Hobbs threatened to kill her, her daughter, and other family members. Hobbs also allegedly stated that if she contacted the police, he also would kill any responding officers.

Officers took Foreman and her daughter to the police station. At the station, Foreman told the officers of Hobbs’s criminal record. Detective Michael Nesbitt verified that information and concluded there was an “extreme urgent threat See Ping Page 6 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

Bluffton mayor awarded $50M in defamation claim

Insurer to pay $6M to settle bad faith suit after fatal crash

Early intervention in litigation

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022

LAWYERS IN THE NEWS Steinberg Law Firm in Charleston announced that Catherine “Catie” Meehan has been promoted to partner. Meehan, the firm’s first female partner, is a former registered nurse who focuses her practice on workers’ compensation and personal injury.

Kevin McKibbin has joined K&L Gates LLP as a partner in the firm’s private equity practice in its

Charleston office. McKibbin’s practice focuses on the representation of private equity funds and their portfolio companies in complex business transactions, and He joins the firm from the Chicago office of Jones Day. Craig Holderman has joined Nexsen Pruet as chief operating officer. He most recently served as chief financial officer at Ogletree Deakins in Greenville.

NEWS BRIEFS Order requiring face masks in courthouses rescinded The chief justice of South Carolina’s Supreme Court has rescinded the order mandating the use of masks or other facial coverings in county and municipal courthouses, effective March 1.

Chief Justice Donald Beatty issued the initial order requiring masks in July 2020, citing the “rapidly increasing COVID-19 infections and an alarming positive test rate” that existed at the time. But in a Feb. 17 order, Beatty said that the requirement was no longer needed.

“Effective vaccines against COVID-19 have been developed and distributed, and are widely available at no cost,” Beatty wrote. “Further, positive case and percent positive rates continue to fall, and other, similar mandates in existence at the time of that order have been rescinded.”

The new order says that anyone who is at risk or concerned about the dangers of COVID-19 may continue to wear a mask inside any courthouse, subject to a request from judges, courthouse staff, or law enforcement to briefly remove that mask when necessary for security or identification purposes. Judges may also require the removal of a mask during the presentation of a case to ensure fairness, or require that persons present in a courtroom wear a mask in individual cases where warranted by the circumstances.

The new order also rescinds the mandate that all courthouses conduct temperature screenings, although judges and courthouse staff retain the discretion to conduct temperature screenings or employ other reasonable mitigation measures at entrances to courthouses or within courthouses and in courtrooms.

Staff reports

Board of Governors seat added for Sr. Lawyer Division The South Carolina Bar has added a board seat to its Board of Governors, the state’s Supreme Court announced in a Feb. 4 order.

Pursuant to Rule 410(c) of the South Carolina Appellate Court Rules and effective immediately, the amendment to Article VII, Section 7.2 of the South Carolina Bar Constitution adds one representative from the Senior Lawyers Division, aligning it with the two representatives from the Young Lawyers Division, Bar communications director Mary-Kathryn Craft said.

The board is composed of the president, the president-elect, the Immediate Past President, the Secretary,

the Treasurer, the president-elect and immediate past president of the Young Lawyers Division, two representatives of the Senior Lawyers Division, and the Chair of the House of Delegates. All members are members ex officio, together with two members (“the elected members”) from each judicial region and two additional members (“the at large members”) who shall be elected as provided by the constitution.

Staff reports

McMaster names attorney to lead juvenile justice agency COLUMBIA (AP) — South Carolina Gov. Henry McMaster has announced that he is appointing an attorney who has temporarily steered the state’s struggling Department of Juvenile Justice to be the agency’s next permanent leader.

Richland County attorney Eden Hendrick has helmed the agency since September, following the departure of former executive director Freddie Pough, who left under fire by lawmakers.

“She’s done a magnificent job since then,” McMaster said at a Feb. 22 news conference. “We could not do any better than to allow Director Hendrick to bring her time and talents full-time into this position.”

Hendrick has restructured agency’s leadership, modernized facilities, instituted sign-on and retention bonuses at the agency to try to fill correctional officer vacancies and asked lawmakers for funding to move mentally ill youth out of detention facilities they are illegally housed at, she said.

“Reforming DJJ will be a complicated and difficult process that will take time,” Hendrick said. “I am optimistic and inspired about the change that has occurred in the past five months I’ve been there, and I’m confident that this trend will continue.”

Hendrick previously worked as an attorney for the Department of Social Services and handled family court cases for the Fifth Circuit Solicitor’s Office.

Pough, Hendrick’s predecessor, stepped down following a scathing state audit, a no-confidence vote by state senators and a walkout by correctional officers at the Broad River Road Complex in Columbia.

The report conducted by the Legislative Audit Council found a number of issues, from an increase in violence at agency facilities to students missing GED testing because they were locked up in isolation units. Staffing and transportation shortages also meant some youths were not receiving adequate and timely medical care.

In 2020, the U.S. Department of Justice ordered the state to make changes to one of its juvenile prisons

BAR DISCIPLINE

ROUNDUP Attorney: Charles Thomas Brooks III Location: Sumter Bar membership: Member since 1996 Disciplinary action: Reprimanded on Feb. 9 Background: Brooks represented a client in a domestic matter. On the morning of a scheduled hearing, the client told Brooks’ paralegal she couldn’t attend because she was out of town.

The paralegal drafted an affidavit for use at the hearing based on facts the client provided via telephone. At the paralegal’s request, the client emailed written authorization for the paralegal to sign the client’s name on the affidavit.

Brooks presented the affidavit in court and informed the judge that his client was out of town. When the judge questioned Brooks about this, Brooks asked to withdraw the affidavit. Brooks said he was unaware that his paralegal had signed the client’s name but acknowledges that he failed to properly supervise his paralegal. Separately, in two different cases, Brooks placed a retainer paid to him into his trust account and treated the entire retainer as earned upon receipt even though no written fee agreement authorizing an advance fee existed between Brooks and the client.

or face a lawsuit, according to a federal report. Federal investigators found the agency was violating the civil rights of incarcerated youths, from failing to train staff to using “punitive, prolonged” isolation units that left youths confined to small, dark cells for 23 hours a day.

The Senate must still confirm Hendrick’s appointment.

4th Circuit upholds ruling blocking S.C. abortion law RICHMOND, Va. (AP) — A federal appeals court has upheld a lower court ruling that temporarily blocks the enforcement of South Carolina’s fetal heartbeat law, which would ban most abortions after six weeks of pregnancy.

The “South Carolina Fetal Heartbeat and Protection from Abortion Act” is similar to abortion restriction laws previously passed in a dozen states that became tied up in the courts.

South Carolina’s law requires doctors to perform ultrasounds to check for fetal cardiac activity, which can typically be detected about six weeks into pregnancy. Once activity is detected, the abortion can only be performed if the pregnancy was caused by rape or incest, or if the mother’s life is in danger.

Republican Gov. Henry McMaster signed the law last year, but it was immediately challenged in a lawsuit filed by Planned Parenthood.

In its Feb. 22 ruling, a three-judge panel of the 4th U.S. Circuit Court of Appeals upheld a ruling by U.S. District Court Judge Mary Geiger Lewis, who suspended the law on its second day in effect.

The appeals court rejected the state’s argument that it was improper to stall all parts of the law rather than just the “heartbeat” provision.

The court also dismissed the state’s

Previous discipline: Brook s was reprimanded in August 2012 for substantially overbilling the South Carolina Commission on Indigent Defense for his representation of indigent clients.

Attorney: David Alan Harley Location: Greer Bar membership: Member since 1997 Disciplinary action: Reprimanded on Feb. 9 Background: In five separate matters, Harley failed to timely provide an accounting to a client, failed to act with diligence on behalf of a client or timely reply to a notice of investigation by the ODC in each of two separate matter cited in the order of discipline, failed to respond to a notice of investigation into a matter where Harley failed to timely pay bills owed for services rendered, and failed to adequately communicate with a client about the status of her case or provide a requested accounting.

Previous discipline: None All information contained in the Bar Discipline Roundup is compiled and edited

by Lawyers Weekly editor in chief David Donovan. He can be reached at david. donovan@sclawyersweekly.com.

contention that Planned Parenthood did not have legal standing to bring the challenge on behalf of women who would potentially be prevented from getting abortions.

The 4th Circuit found that all of the provisions of the law — including requiring an abortion provider to perform an ultrasound, display the ultrasound images to the patient, and offer the patient the opportunity to listen to any detected fetal heartbeat — are designed to implement the ban.

“These provisions serve to carry out the six-week abortion ban and make little sense without the ban. As such, the district court did not abuse its discretion by declining to sever the remaining portions of the Act,” Judge Stephanie Thacker wrote for the court in its unanimous ruling.

South Carolina Attorney General Alan Wilson said he is considering all legal options. His spokesperson declined to say whether the state will ask the 4th Circuit to hold a hearing before the full court.

“We are disappointed in the Court’s opinion. However, we will continue to explore any and all means necessary to protect life in the remaining stages of this case as well as in any other cases that may arise,” Wilson said in a statement.

The ruling comes as states around the country await U.S. Supreme Court action in another case that could dramatically limit abortion rights overall.

In December, attorneys for Mississippi asked the high court to uphold its ban on most abortions after the 15th week of pregnancy.

The state also asked justices to overrule the landmark 1973 Roe v.

Wade case and the follow-up 1992 decision that prevents states from banning abortion before viability, the point around 24 weeks of pregnancy when a fetus can survive outside the womb.

South Carolina’s law has been See Page 3 ►

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Bluffton mayor awarded $50M in defamation claim ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A Beaufort County jury has awarded $50 million to the mayor of Bluffton after finding that she had been defamed for years by an outspoken critic of local government officials.

On Feb. 3, the jury ordered Calvin “Skip” Hoagland to pay $40 million in actual damages John Parker and $10 million in punitive damages.

Mayor Lisa Sulka alleged that in 2015 Hoagland began a false campaign against her, hurling malicious public statements intended to harm her reputation and subject her to mental anguish. Hoagland accused Sulka of various wrongdoings in office Daniel through published numerous Henderson emails to several officials, alleging, among other things, that she used city employees to sell memberships in the Hilton Head Chamber of Commerce, misappropriated and misused funds, engaged in unfair competitive practices, and committed IRS violations.

John Parker and Daniel Henderson of Parker Law Group in Ridgeland represented Sulka.

They said that the defamatory acts occurred primary through email but also included newspaper publications and public statements. They called Hoagland’s emails “rambling” and “incoherent,”

adding that he continued to “publish them with vigor” despite knowing that they were not accurate.

Parker and Henderson said the verdict wasn’t the reaction of a runaway jury, but a fair return, and that while Sulka hasn’t recovered the award, “hope springs eternal.” They also said it was “an honor and privilege [to represent] a person of Mayor Sulka’s character.”

According to the complaint Hoagland falsely stated many times that Sulka is a corrupt, mentally ill criminal who should be removed from office and publicly shamed.

In one email to South Carolina Attorney General Alan Wilson and others, Hoagland allegedly wrote, “What are you all going to do about our lying crooked, corrupt real estate agent Mayor Lisa Sulka? … How much of her incompetent corrupt happy horse manure are we all supposed to stand? You understand she illegally used town employees to profit a private corporation correct?

Not to mention her real estate dealings.”

Hoagland is the founder and president of Domains New Media, another platform Hoagland was accused of using to launch his attacks, according to that publication’s website. According to the complaint, Hoagland in one email wrote that he would stake his 40-year reputation that Sulka was involved in “massive wrongdoing.”

Hoagland fired the attorney hired by his insurance company and chose not to participate in the trial. He told reporters before the trial began that he wouldn’t show up because he couldn’t be pursued for something that he didn’t do, and that his statements weren’t defamatory, only attempts to hold an official accountable. In Hoa-

VERDICT REPORT — DEFAMATION

Amount: $50 million Injuries alleged: Emotional distress, fear, and injury to reputation and standing in community Case name: Sulka v. Hoagland and Domains New Media, LLC Court: Beaufort County Circuit Court Case No.: 2017-CP-07-01547 Judge: Maite Murphy Date of verdict: Feb. 3 Insurance carrier: PURE Insurance Attorneys for plaintiff: John Parker and Daniel Henderson of Parker Law Group in Ridgeland Attorney for defendant: None gland’s absence, Sulka introduced 12 witnesses and presented 50 exhibits in proving her case.

Hoagland also chose to forgo the reading of the verdict. According to the Associated Press, Hoagland laughed when he was informed of the verdict, saying, “That’s a joke, right? … That’s insanity.”

Hoagland did not immediately respond to an email from Lawyers Weekly seeking comment on the case, but reportedly told The Island Packet in Bluffton that he is happy with the “predetermined” decision because it allows him to seek damages for free speech violations by a “lawless, filthy, frivolous” suit aimed at silencing a government critic.

Insurer to pay $6M to settle bad faith suit after fatal crash ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The insurer for a driver who caused a car crash that killed two people—including a young mother— and seriously injured two others has agreed to pay $6 million to the plaintiffs in the case, their attorneys report.

Bert Utsey of Clawson Fargnoli Utsey in Charleston and John Bell of Bell & Brigham in Augusta, Georgia report that the at-fault driver, Ilia Popov, crossed the center line on a four-lane highway near Charleston and struck another vehicle head-on. The four people in the car were headed north from Florida to attend a graduation at The Citadel, Utsey said.

The young mother, who was set to marry the soonto-be Citadel graduate, was killed, as was her father.

Her infant child and her mother survived.

“It’s a tragic story,” Utsey said. “The guy’s girlfriend got pregnant, and the Citadel has a rule that a cadet can’t be married, so they decided to have the baby and wait until after the graduation to get married. And the bride-to-be was killed on the way to that graduation.”

Utsey said that he believes that Popov, a Bulgarian native who had been living in the Dorchester area, fled to Eastern Europe after the crash and refused to cooperate.

Utsey said that Popov’s insurer, QBE Insurance

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blocked, pending the outcome of that case. If the court simply upholds Mississippi’s ban, other Republican-governed states would likely enact similar measures, while any demise of Roe could prompt more sweeping bans.

Opponents of such laws have argued that many women do not know they are pregnant at six weeks. And, they say, with such an early deadline, the law gives women little time to consider whether to have an abortion.

Medical experts say the early cardiac activity is not an actual heartbeat but rather an initial flutter of electric movement within cells in an embryo.

They say the heart does not begin to

Corp., failed to settle the claims within its $100,000 policy limits, but paid those limits into court via an interpleader action. When the tort suit was reduced to judgment, Utsey said, the plaintiffs obtained a judicial assignment of Popov’s right to sue QBE for bad faith.

QBE offered several defenses, Bert Utsey Utsey said, including contesting the validity of the judicial assignment, claiming the interpleader action barred the bad faith action, and arguing that it had acted in good faith given the existence of two other possible claimants from the crash.

After U.S. District Judge Richard Gergel granted the plaintiffs partial summary judgment related to the defense based on the interpleader action, the parties agreed to the setJohn Bell tlement, Utsey said.

“They had a $100,000 policy and they ended up paying 60 times what the coverage was,” Utsey said.

Karl Folkens of Florence mediated the case.

J.R. Murphy of Murphy & Grantland in Columbia represented QBE. Murphy did not respond to a request for comment.

form until the fetus is at least nine weeks old, decrying efforts to promote abortion bans by relying on medical inaccuracies.

Confederate marker fight may send S.C. and Charleston to court COLUMBIA (AP) — South Carolina’s top lawyer and Charleston appear to be heading to court to figure out if the city broke a state law protecting Confederate memorials when it removed a marker commemorating a rebel general from the front lawn of a public school.

SETTLEMENT REPORT — MOTOR VEHICLE WRECK/BAD FAITH

Amount: $6 million Injuries alleged: Death to two plaintiffs and serious personal injuries to two plaintiffs Case name: Popov v. QBE Insurance Corp.

Court: U.S. District Court for the District of South Carolina Case No.: 2:20-cv-00739 Judge: Richard Gergel Mediator: Karl Folkens of Florence Date of settlement: Feb. 10 Most helpful experts: George Vaka of Tampa, Florida, and Don Dinsmore of Chapel Hill, North Carolina Insurance carrier: QBE Insurance Corp.

Attorneys for plaintiffs: Bert Utsey of Clawson Fargnoli Utsey in Charleston and John Bell of Bell & Brigham in Augusta, Georgia Attorney for defendant: J.R. Murphy of Murphy & Grantland in Columbia

The stone memorial calling the street outside the school the “Robert E. Lee Memorial Highway” was removed in July at the request of leaders at the Charleston Charter School for Math and Science in downtown Charleston, city officials said.

The highway was never constructed, so city officials decided the monument didn’t fall under the state’s Heritage Act, which protects statues, street names, markers and anything else considered historic from being changed or removed without permission of the state Legislature.

State Attorney General Alan Wilson sent a letter to Charleston Mayor John Tecklenburg, saying the city must either restore the monument to

the school or get permission from the General Assembly to move it.

“Unless the Lee Memorial is restored to its rightful place in preserving history, we will go to court to uphold the Heritage Act. The rule of law must prevail,” Wilson wrote in his letter.

Lawyers for the city are working on a formal response to Wilson’s letter, but said they thoroughly reviewed the request and found it followed the Heritage Act and a state Supreme Court ruling in September that upheld the law but struck down a requirement that two-thirds of the General Assembly must approve a move or name S e e P a g e 16 ►

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022

Early intervention in litigation ■ BY GALINA DAVIDOFF While in graduate school, I worked for an early intervention program that involved sending psychologists to talk to struggling young families before they developed serious problems.

Professionals of all kinds—doctors, exterminators, psychotherapists and lawyers—always point out that getting them involved earlier brings substantial benefits and prevents future problems and disasters.

Litigation consultants, more commonly known as jury consultants, have been saying the same thing for years: Taking a look at your case through the jurors’ eyes early in the litigation process helps you avoid losses and maximize your wins, helps shape discovery and prepare for mediations and arbitrations.

Most lawyers associate litigation consultants with mock trials conducted a few weeks before trial and with jury selection. But the most seasoned trial attorneys prefer to talk with their litigation consultant as early as possible. Plaintiffs’ attorneys may even do it before filing a complaint.

Defense attorneys do it when they learn enough to realize that they have a serious matter on their hands. They send their litigation consultants the complaint and perhaps one or two additional case documents and ask for their thoughts: What is this case about for jurors? What are our potential themes? Do you see any red flags or pitfalls for our side? What are our main strengths? How would the local issues play in this litigation? What background information do we need for jurors to be able to understand the case issues? What questions will jurors have about this case? What would they want to know most of all? What experts will jurors want to hear? How damaging is this fact or document?

Sometimes the consultant will send a memo outlining their thoughts in response. Sometimes there is only a conversation or two with or without a memo. In rare cases, an early jury research project would be commissioned.

Jury research projects that involve renting space, hiring surrogate jurors, flying the trial team to the case venue, feeding everyone, and videotaping the proceedings are necessarily expensive.

It appears that litigation managers are finally hearing the call for more strategic thinking and respect for jurors’ abilities and limitations. They no longer want a “no stone unturned” prolonged discovery.

They want to know early on if their case is winnable and do not want to wait to find out the answer until the eve of the trial, having spent millions on discovery and litigation.

Prior to the pandemic, only a small subset of jury research projects was conducted online, and those involved special platforms and technical difficulties. So, early intervention jury research was pretty rare.

The pandemic greatly accelerated the trend of getting litigation consultants involved earlier rather than later in the litigation process and in taking jury research projects online.

With trials postponed into an indefinite future, many chose to use the time to think about their themes and discovery strategies with their consultants’ help. And as everyone became proficient in joining Zoom meetings with colleagues, friends, and grandchildren, online projects became much more feasible, saving thousands of dollars in expenses.

Understanding the changing environment, large companies and insurers that manage multiple cases conducted seminars on the early use of litigation consultants. I’ve received more invitations to lead such seminars in 2020 and 2021 than in the prior 20 years taken together.

The goals of early intervention specified by litigation managers were as follows: 1. To identify “nuclear” cases early on 2. To help shape discovery strategy and expert selection 3. To prepare witnesses for video depositions 4. To save money not only on the final outcome but also on the litigation process Keeping your ultimate audience in mind from the beginning of a case is beneficial in many respects. Great trial lawyers used to think about their closing arguments as soon as they started working on a case.

As many have abandoned this practice, the result of discovery is often a great number of facts and arguments that do not tell a story but obscure it.

That is fine if you don’t mind the expense and are prepared to then ruthlessly edit your case, limiting your trial presentation only to the facts that help you tell the winning story.

But the reality of human psychology is that after we invest time and effort into developing information, we hate to have it fall by the wayside.

And so you have many prolonged trials in which jurors are overwhelmed by the sheer number of facts and arguments not united by themes and story. Judges do what they can to See Page 5 ►

"Helping lawyers practice better, more efficiently, and more profitably."

■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EXECUTIVE EDITOR Andy Owens aowens@scbiznews.com ■ EDITOR IN CHIEF David Donovan ddonovan@sclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@sclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Ryan O’Shea, Production Supervisor roshea@molawyersmedia.com ©2022 BridgeTower Media. Material published in South Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers.

The material may not be republished, resold,

The difficult but important task of letting someone go

recorded, or used in any manner, in whole

■ BY CHRISTOPHER R. EARLEY BridgeTower Media Newswires

tant here.

I believe in fair and generous severance and will briefly describe the severance offered. If done right, the entire conversation should be no longer than a few minutes.

consent. Any infringement will be subject to

The aftermath

with General Statewide Circulation by South

“In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst you can do is nothing.”

— Theodore Roosevelt There are few things harder for me than letting go of someone who is not working out. This is, however, just a necessary part of running a successful practice that must be done from time to time.

If someone has to go and you delay the inevitable, you are stalling the growth of your firm — and that person’s growth as well. That is not fair to that person, and it does not reflect strong leadership.

Here are some things to keep in mind if you are faced with the hard decision of whether or not to let go of someone.

Making the decision

I call this the litmus test. If you are being really honest with yourself when evaluating your team members, the test of whether someone is

working out is simply to ask yourself: Would I enthusiastically re-hire this person again?

Brutal honesty is needed here, and there is no middle ground. The answer to this simple binary question will give you clarity on whether someone is either helping you or hindering you.

If it is the former, then continue to make sure that person is growing and thriving. If it is the latter, you at that point can decide either to kick the can or to be proactive and make the necessary change for your firm.

Having the conversation

It is unquestionably an uncomfortable meeting when you have to sit down with the team member to let the person go. I always make sure to have a witness present and to get right to the point.

I begin the conversation by telling the person I have given great thought to the decision and have decided that he or she is no longer a good fit for the firm and would be a better fit someplace else. This is not the time to rehash the past or to argue. Being blunt and straightforward is really impor-

You will find great relief that you made this decision. Your existing team members will probably wonder what took you so long. At the same time, the departing team member will likely realize that he was not a good fit for the position and that he can thrive and be better suited at a different company.

You made a hard decision, but that hard decision instantly and positively impacted the lives of others. That is a hallmark of true and genuine leadership.

No one ever enjoys letting go of someone, but it must be done when it is necessary.

Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families.

or in part, without the publisher’s explicit

legal redress.

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trim the number of issues presented to the jury, but they can only do so much.

Retired Judge Mark Bennet, who served on the federal bench for nearly a quarter of a century and is known not only for his opinions but also for many eloquent publications on jury selection and trial persuasion, said it best: “Walk into any state or federal jury trial from Alaska to Florida, or from Maine to Hawaii, and you will likely discover the long-awaited cure for insomnia. Bottle it, sell it on a TV infomercial, and you could get rich …

I remain shocked that lawyers with both the perseverance to make it through law school and the courage

to enter a federal courtroom are still so lacking in the art of persuasion and in the traits necessary to become great trial lawyers.”

It appears that litigation managers are finally hearing the call for more strategic thinking and respect for jurors’ abilities and limitations.

They no longer want a “no stone unturned” prolonged discovery. They want to know early on if their case is winnable and do not want to wait to find out the answer until the eve of the trial, having spent millions on discovery and litigation.

Besides helping to decide whether a case is winnable or needs to be settled in a hurry, mock jury deliberations inevitably point out new avenues of strengthening the case. Be-

cause most cases never make it to a jury, these findings are typically used to drive a more favorable settlement position.

One of my most satisfying professional memories is of a case that was resolved in mediation after two rounds of jury research in a betthe-company case. The first round showed us losing the case on all counts despite the eight expensive experts that supported it. The second round validated our newly developed strategy that dispensed with heavy reliance on expert testimony in favor of a case story that resonated with jurors.

When the trial lawyer incorporated the new story into his opening statement in mediation, the other

side caved on the spot. (It certainly helped that our new story was focused on the embarrassing mistakes made by the opposition, which would have greatly hurt its public image if exposed at trial.)

The opposing attorney shook our client’s hand and said, “Congratulations, you just made your case!” This was a great outcome, but it could have been even greater if the intervention had been conducted earlier, saving some of the money spent on experts whose testimony was not needed to persuade a jury.

Galina Davidoff is a Boston-based jury consultant with a nationwide practice. The founder of Davidoff Consulting, she can be contacted at gdavidoff@davidoffconsulting.com.

PHISHING / Trusted apps make for very dangerous hacks C o nt inu e d f r o m 1 ►

continuing legal education, though he admits that it may only be one small part of a comprehensive discussion covering smishing (SMS/text phishing), vishing (voice phishing), and other -ishings. But Brown said that while calendar scams might go by a different name, it’s the same game.

“Basically, it’s a form of phishing that takes advantage of the userfriendly features in calendars where an appointment is automatically added to your calendar even before you accept it,” Brown said.

Calendar fraud can be particularly effective because these very high-risk entries, notifications, and invitations reside within trusted web applications, said Jack Pringle of Adams & Reese in Columbia, who focuses his practice on privacy, cybersecurity, and data management.

“A lot of people don’t give thought that one’s calendar might be an attack vector,” Pringle said. “But as with anything else, it’s important to understand that it’s not magic if someone manages to put something on your calendar if they know your email address and if settings allow them to put things on your calendar without ap-

proval.”

A study conducted by cybersecurity and antivirus provider Kaspersky Lab, focusing mainly on Google Calendars, found that users are less likely to ignore calendar invitations and events and more likely to open links on the fly that they assume to be sound.

These conference links act like a legitimate meeting app, Brown said, but lead the recipient to an empty room.

And by the time they realize what they’ve waded into, it’s too late.

“No one else shows up for the meeting but, in the background, something has happened,” Brown said. “Maybe it’s downloaded malware or ransomware or keylogger [software that records the strokes the user makes on their keyboard] or some sort of command-and-control software.”

A good day of work beats a bad day of phishing

One third of law firms with 100 attorneys or more have been victimized by cybercriminals, according to the American Bar Association, and they’re not the only targets in the legal industry.

In 2019, the North Carolina State Bar was infiltrated by hackers demanding ransom. While the associa-

tion’s servers were locked up and its website rendered inoperable, no data appeared to have been stolen. The bar recovered from the attack without paying a ransom and intensified its efforts to improve network security, including moving its data offsite into a secure cloud environment with realtime and redundant backups.

“As you might imagine, we receive our fair share of … attacks, so employee education is a big part of our security plan,” said Peter Bolac, assistant executive director and legislative liaison at the bar.

Brown recommended quarterly, if not monthly, security awareness training. He likens it to regular CPR training for lifeguards, except it provides “muscle memory” for hacker defense.

“It keeps us all safer and keeps everyone thinking about it,” Brown said.

“If you see something suspicious, anything that you don’t remember putting there, report it. If you’re at a firm with secretaries or paralegals, check with them.”

Most experts agree that protecting everything, all the time, from experienced, motivated bad actors is likely impossible. In addition to being computer whizzes, scammers are notori-

ously persistent, sometimes setting reminders to send messages until the invitation is deleted or the recipient enters the room.

To help counteract that persistence, as with other cyber scams, experts recommend a healthy dose of skepticism and common sense. In a world where information from family schedules to financial information is synced and responses are often instantaneous, Brown said that the motto should be “don’t trust anything.”

“Take a second to stop, breathe, and think,” Brown said. “Don’t just assume that something is trustworthy.”

Some platforms claim to have adjusted their settings to help defend against these types of attacks, but Pringle said that the working assumption should be that a calendar application by default is going to automatically accept invitations.

“Each of us has to weigh the benefits of various technology tools and features—convenience, ease, rapid transactions, etc.—with the potential risks those tools and features create or heighten,” Pringle said. “There is almost always some tension between security and convenience … we have to put friction in the process [of cyberattacks].”

DRUG HISTORY / Charges were unrelated to crash C o nt inu e d f r o m 1 ►

charges and convictions were admissible because they showed that Barr had stopped at his friend’s house for drugs rather than aid, demonstrated a breach of duty to society and a history of making poor decisions, and could be used to impeach Barr if he lied about his convictions.

Florence County Circuit Court Judge D. Craig Brown allowed evidence of Barr’s traffic violations because they were probative in the sense that an employer can anticipate that one who has improperly operated a vehicle might cause harm in the scope of his employment. But because none of Barr’s convictions involved operating a vehicle while impaired and a trooper at the scene testified that he didn’t believe Barr was impaired at the time of the crash, they didn’t indicate that C&B had showed reckless disregard for MacKenzie’s rights, because nothing suggested an increased likelihood that Barr wouldn’t follow safety procedures in pulling over.

MacKenzie appealed the exclusion of the other convictions. Judge John D. Geathers, writing for a

unanimous Court of Appeals in a Feb. 9 opinion, found that pursuant to Rule 403 of the state’s rules of evidence Brown had properly excluded evidence that he’d found to be more prejudicial than probative.

MacKenzie argued that leaving out the evidence of the drug-related offenses allowed the jury to hear only part of the story about Barr’s criminal history—Brown had allowed evidence of Barr’s traffic violations—but Geathers said that this is not what Rule 403 is intended to do.

“If the rest of the story is found by the court to be substantially more unfairly prejudicial than probative, it is to be excluded,” Geathers wrote. “Simply showing that Barr had a criminal record is not sufficient to admit the evidence without some showing that it was related to the ultimate issue in the case that is now on appeal—namely, whether C&B’s decision to hire and retain Barr justified an award of punitive damages,” Geathers wrote.

MacKenzie pointed to the state Supreme Court’s 1991 ruling in Green v. Hewett, which held that participation in a drug conspiracy

(Barr was convicted of criminal conspiracy in 2012) is a crime of moral turpitude that should’ve been admitted under the then-common law rule regarding impeachment, and that it is egregious enough to be viewed as a breach of Barr’s duty to society as a whole, which is required to prove a claim of negligent hiring, supervision, or training.

But the problem with her argument, Geathers wrote, is that the only issue in Green was whether the conspiracy—and its admissibility under the moral turpitude standard—was admissible for impeachment purposes, not to prove a negligent hiring claim or support a request for punitive damages.

“And that definition no longer has any relevance under South Carolina law when it comes to the admission of prior bad acts,” Geathers wrote, citing its 2012 decision in State v. Black.

MacKenzie argued that evidentiary law regarding moral turpitude wasn’t changed by Rule 609, citing multiple references to Green in the reporter’s note to the rule.

But Geathers wasn’t persuaded, writing that the rule doesn’t use

the moral turpitude standard but instead allows impeachment with a conviction for any crime which carries a maximum sentence of death or imprisonment for more than one year, which Barr’s did not.

“Further, the rule provides for a different standard for balancing probative value and prejudicial effect for an accused who is a witness,” Geathers wrote.

Chief Judge H. Bruce Williams and Judge Thomas Huff concurred in the decision.

Robert Moseley and Megan Early-Soppa of Marcinak Law Group in Greenville represented Barr and C&B Logging. Moseley declined to comment on the pending matter.

Camden Hodge, Eric Poulin, and Roy Willey of Anastopoulo Law Firm in Charleston represented MacKenzie. Willey declined to comment on the pending litigation.

The 12-page decision is MacKenzie v. C&B Logging and Charles Brandon Barr (Lawyers Weekly No. 011-008-22). The full text of the opinion is available online at sclawyersweekly.com.

6 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022

Lawyers see some ambiguities in federal arbitration measure ■ BY BARRY BRIDGES bbridges@lawyersweekly.com Employment lawyers are evaluating the impact of a federal bill that, upon President Biden’s expected signature, will prohibit employers from mandating arbitration for sexual harassment and sexual assault claims, with some predicting that Congress may ultimately pass similar legislation sending other types of workplace issues to the courtroom.

H.R. 4445, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” was approved in the U.S. House of Representatives on Feb. 7 and passed in the Senate on Feb. 10. The White House has indicated Biden’s support for the measure.

The bill amends the Federal Arbitration Act to prohibit the enforcement of mandatory pre-dispute arbitration agreements at the election of the person alleging the conduct “or the named representative of a class or in a collective action alleging such conduct.”

That option of pursuing a claim via arbitration or the courts is an important one for employees, because it gives them the “power to control the narrative,” said Michael D. Pushee, an employee-side attorney in Rhode Island. An employee who wants to take a public stand against an employer, for whatever reason, can proceed in federal or state court and choose a jury trial.

“Some may not want the publicity or scrutiny associated with alleging claims of sexual harassment. The privacy that comes with arbitration can provide that,” Pushee said. “With electronic docketing and social media, court filings are now more public than ever.”

Jessica Schachter Jewell, a business-side practitioner with Nixon Peabody in Boston, said that “the usual discourse” is that arbitration is pro-employer and employees favor

litigation. But Jewell says she doesn’t think that is always the case, “as arbitration offers more privacy and is faster than going through the courts.”

The bill also explicitly states that any questions on whether the act applies to a particular claim will be decided by a court, not an arbitrator, “irrespective of whether the agreement purports to delegate such determination to an arbitrator.”

“That is important because it allows employees who file a lawsuit to remain in federal or state court and have that court decide whether the claims are subject to arbitration,” Pushee said.

That is opposed to a situation in which a lawsuit is filed while a parallel arbitration proceeding is also moving forward just to decide whether arbitration is even permissible. “It streamlines things for the employee,” Pushee said.

Tip of the iceberg?

Boston’s James W. Bucking, an employer-side attorney at Foley Hoag, characterizes the act on its face as a “fairly narrow carve-out” pertaining to a limited number of claims.

However, he envisions a potential “slippery slope” effect that the law could have on mandatory arbitration provisions in other contexts.

“I don’t see how you can say, for example, that you need to publicly call out sexual harassment but not racial harassment,” Bucking says.

“This could serve as a ‘foot in the door.’ It’s really hard to imagine that there won’t be future carve-outs, and I think that racial discrimination and transgender discrimination could be the next developments at the federal level.”

Pushee says that in light of the bill’s definition of sexual harassment as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,” the bill would

already seem to encompass not only sexual harassment claims in the traditional sense, but other sex-based harassment claims as well.

“Under Title VII … unwelcome conduct includes harassment based upon sexual orientation, gender identity and pregnancy,” he said. “It appears all of these types of claims would be covered by H.R. 4445.”

Potential uncertainties

Michael A. Gamboli, a businessside attorney at Partridge, Snow & Hahn in Rhode Island, describes the act as a “gaping departure” from the otherwise broad protections contained in the Federal Arbitration Act. “The FAA makes it largely impossible [for an employee] to avoid mandatory arbitration and goes so far as to invalidate any state law to the contrary under the Supremacy Clause of the Constitution,” Gamboli says.

He observed that the measure also upends the 2018 U.S. Supreme Court decision in Epic Systems Corp. v. Lewis, in which the justices held that a mandatory arbitration agreement forcing individual arbitration of employment claims and waiving the right to proceed as a class action was enforceable.

The legislation presents a bit of a shift in that federal law is outpacing state laws on the topic, Gamboli says.

“For example, with sexual orientation being a protected class, state law typically evolves more quickly than federal law. Here, only a few states have passed legislation purporting to ban forced arbitration of sexual harassment or other employment claims, so passing the pending legislation would be a rare case of the federal law evolving more quickly than state law in the employment arena,” Gamboli says.

But the three-page bill does present some unanswered questions at this early stage. For example, Jewell

points to workplace claims encompassing allegations of different types of wrongful conduct.

“One wrinkle that Congress didn’t necessarily foresee is that while the act applies to a limited type of employee claim, some cases may have multiple causes of action against an employer,” Jewell said. “So it’s a very simple bill on the one hand, but I can foresee some logistical issues where there are multiple claims. Will some be subject to arbitration while others go to court? It may be that you have to proceed in two different forums.”

Employers will have to give some thought in reviewing their policies and should be proactive early in deciding on the kind of position they want to take, Bucking said. On the claim-splitting issue, for example, a company may want to specify that an employee will take a sexual harassment allegation in court with everything else going to arbitration, or may simply decide that everything should go to court.

“Employers may approach it differently, but every company should look at their workforce and the nature of their claims history and decide what they want to do,” Bucking says.

Elsewhere, Pushee identifies ambiguity in Section 3 of the bill, which states that it shall apply to any dispute that “arises or accrues on or after the date of enactment of this Act.” He envisioned a scenario in which conduct has been occurring over months or even years, with some happening before the enactment and some after.

“What does that mean? Does the claim arise or accrue when the harassment first happens or does it arise when the employee first complains about it?” Pushee said. “Does that mean the employee must arbitrate the older conduct, but is allowed to file a federal lawsuit as to the recent misconduct? There is some uncertainty there.”

PING / Imminent danger justified pings C o nt inu e d f r o m 1 ►

to the community.”

Around midnight, Nesbitt submitted an “exigent form” to Hobbs’s cellphone provider, T-Mobile, seeking immediate police access without a warrant to “pings” that would show the location of Hobbs’s cell phone and to call logs showing the phone numbers Hobbs contacted.

T-Mobile responded within an hour with real-time pings on Hobbs’s phone. Nesbitt was alerted every 15 minutes to Hobbs’s general location. Another officer used the call logs to figure out which of Hobbs’s associates lived within that general area.

Hobbs tried to flee when a team of officers tried to conduct a traffic stop of his vehicle. He was arrested, and a handgun was found on the ground between the curb and the driver’s side of his vehicle.

Hobbs moved to suppress evidence of the firearm. The exigent circumstances exception to the warrant requirement didn’t justify the officers’ use of cell phone pings and call logs, he argued.

District Judge Deborah K. Cha-

sanow of the District of Maryland denied the motion, holding that Nesbitt “reasonably concluded that the ‘exigent form’ was the only way to ensure a timely response from TMobile, because ‘even an hour delay under the circumstances here could be disastrous.’”

Chasanow also said the officers had properly used the call logs to “narrow the search area” shown by the pings.

Keenan noted this was a case of first impression since the Fourth Circuit hadn’t yet considered the exigent circumstances exception in the context of police use of a cellphone “ping” along with call logs from a suspect’s cellphone.

She found a 2016 decision from the 2nd U.S. Circuit Court of Appeals, United States v. Caraballo, instructive. The exigent circumstances in that case “justified the officers’ failure to obtain a warrant for access to the defendant’s cell phone ‘pings.’”

The Caraballo court pointed out that the officers had “good reason to believe” the defendant was armed and they “were aware that he was the primary suspect in a brutal murder.” Most importantly,

however, the officers “had ‘specific reasons to think’ that he would act to kill undercover officers and other informants who had infiltrated his drug operation.”

While the officers could have obtained a warrant within about six hours, the defendant’s cellphone provider would act immediately to comply with any “exigent” request.

Further, according to the court, there was relatively limited police intrusion on the defendant’s privacy interests. The use of pings was “strictly circumscribed” and the officers located the defendant within two hours.

Keenan said the same reasoning applied here.

“When Foreman recounted Hobbs’ actions to the police, she was trembling and distraught, explaining that Hobbs was armed and had threatened to kill her, her minor daughter, other family members and any law enforcement officers who might try to apprehend him,” she wrote.

She added that the officers were “so concerned about Foreman’s safety that they escorted her to the police station, an extremely rare precaution according to Detective

Nesbitt, and initiated ‘constant surveillance’ of Foreman’s residence while Hobbs was still at large.”

Keenan said the district court made no error when it held that “‘the only way to get help from TMobile’ in a timely fashion was by submitting an ‘exigent form.’”

“Under these circumstances, we hold that the officers reasonably concluded that Hobbs was armed and dangerous, that he posed an imminent threat to Foreman, to her family members, and to law enforcement officers, and that these exigent circumstances required them to seek the cell phone location information from T-Mobile without delay.”

Keenan offered a word of caution, though, emphasizing that the exigent circumstances exception “does not serve as a tool of convenience to be employed by law enforcement in the absence of immediate danger to persons, a fleeing suspect, or the need to ‘prevent the imminent destruction of evidence.’”

In fact, she noted, the warrant requirement, by design, imposes certain restrictions on law enforceS e e P a g e 16 ►

OPINION DIGESTS / 7

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Feb ruary 28, 2022

Opinions S.C. SUPREME COURT

7

S.C. COURT OF APPEALS

4TH U.S. CIRCUIT COURT OF APPEALS

S.C. SUPREME COURT

Criminal Practice Constitutional – Speedy Trial – Reason for Delay – Attorney Protection Order Part of the delay in bringing defendant to trial arose from an order of protection given to defense counsel during his participation in the federal trial against Dylann Roof. We agree with our Court of Appeals that this delay should not be attributed to the state, but we do not agree that—because defendant chose to retain counsel who he knew was under an order of protection—this part of the delay must be attributed to defendant.

Counsel did not fail to act on defendant’s behalf; additionally, during this period, the state was still seeking the death penalty against defendant.

Defendant was entitled to keep his lawyer, even though doing so delayed his trial. This specific period of delay should be weighed as neutral or valid.

This does not change the outcome of the speedy trial analysis. As modified, we affirm the Court of Appeals’ decision to uphold the circuit court’s rejection of defendant’s claim that his right to a speedy trial was violated.

State v. Barnes (Lawyers Weekly No. 010-004-22, 4 pp.) (Per curiam) Appealed from Edgefield County Circuit Court (Diane Schafer Goodstein, J.) On writ of certiorari to the Court of Appeals. Kathrine Haggard Hudgins for petitioner; Alan McCrory Wilson, Mark Reynolds Farthing and Samuel Hubbard for respondent. S.C. S. Ct.

Attorneys Discipline – Public Reprimand – Unearned Fees Without a fee agreement allowing him to do so, the respondent-attorney placed retainers in his trust account, treating the retainers as earned upon receipt. Respondent also failed to properly supervise a paralegal, who (with emailed permission from a client) signed the client’s name on an affidavit and then notarized the affidavit.

Respondent violated Rules 1.5(a), (c) and (f), 5.3(b). We accept the agreement for discipline by consent and publicly reprimand respondent.

In re Brooks (Lawyers Weekly No. 010-005-22, 4 pp.) (Per curiam) John Nichols and Ericka Williams for the Office of Disciplinary Counsel; Charles Thomas Brooks, pro se. S.C. S. Ct.

Attorneys Discipline – Public Reprimand – Accounts, Communication & Diligence – Health Problems

8

7

S.C. COURT OF APPEALS, UNPUBLISHED

While suffering from serious health problems that are now well managed, the respondent-attorney failed to provide promised fee accountings to clients, failed to promptly respond to inquiries by the Office of Disciplinary Counsel, failed to deliver a promised expert opinion letter, and failed to adequately communicate with a client.

Respondent admittedly violated Rules of Professional Conduct 1.15(d), 1.3, 1.4, 1.5(a), 8.1(b) and 8.4(e).

We accept the agreement for discipline by consent and publicly reprimand respondent.

In re Harley (Lawyers Weekly No. 010-006-22, 5 pp.) (Per curiam) John Nichols and Ericka Williams for the Office of Disciplinary Counsel; David Alan Harley, pro se. S.C. S. Ct.

S.C. COURT OF APPEALS

Tort/Negligence Truck Driver – Respondeat Superior Claim – Prior Drug Convictions A truck driver’s previous drug charges and convictions do not indicate that his employer showed a reckless disregard for the rights of the plaintiffmotorcyclist, because there was nothing about the charges and convictions that indicated an increased likelihood that the truck driver would not follow safety procedures in pulling over to the side of the road. On the other hand, the unfairly prejudicial nature of the allegation that the truck driver had previously possessed narcotics, and the suggestion that he might have stopped on the side of the road to obtain the same, is self-evident when it comes to whether jurors might have improperly considered it in imposing punitive damages.

We affirm the trial court’s exclusion of evidence of the truck driver’s previous drug charges and convictions.

The consideration in Green v.

Hewett, 305 S.C. 238, 407 S.E.2d 651 (1991), of whether a drug conspiracy crime was admissible as a crime of moral turpitude for impeachment purposes had nothing to do with what evidence may be introduced to prove a negligent hiring claim or support a request for resulting punitive damages. And the definition of moral turpitude at issue in Green no longer has any relevance under South Carolina law when it comes to the admission of prior bad acts.

We have found no authority, and plaintiff has cited none, suggesting that “crimes of moral turpitude” under any name have any relationship to whether the defendant-employer was negligent in plaintiff’s employment claims, or whether plaintiff was entitled to punitive damages.

Clearly, evidence of the truck driver’s previous drug charges would not be admissible under Rule 609, SCRE. Neither would convictions that were not punishable by death or imprisonment in excess of one year.

7

U.S. DISTRICT COURT

Further, Rule 609(a)(1) requires application of the balancing test of Rule 403, SCRE. In performing the Rule 403 balancing test, the circuit court considered whether the probative value of the truck driver’s previous convictions was “substantially outweighed by the danger of unfair prejudice.”

The circuit court said, “I do not believe that [the drug-related convictions] are probative, and any probative value is certainly outweighed by the potential prejudicial effect in this case.” While the circuit court did not specifically use the term “substantially outweighed,” the court found that the drug-related convictions had no probative value, meaning that virtually any unfair prejudice from the evidence would substantially outweigh its probative value.

Nor would the truck driver’s offenses have qualified under Rule 609(a)(2), which concerns crimes of dishonesty.

Our Supreme Court has repeatedly held that drug convictions generally are not admissible under Rule 609(a) (2).

Affirmed.

MacKenzie v. C&B Logging (Lawyers Weekly No. 011-008-22, 12 pp.) (John Geathers, J.) Appealed from Florence County Circuit Court (Craig Brown, J.) Camden Hodge, Eric Poulin and Roy Willey for plaintiff; Robert Moseley and Megan Early-Soppa for defendants. S.C. App.

S.C. COURT OF APPEALS, UNPUBLISHED

Workers’ Compensation Death Benefits – Causation – Smoke Inhalation & Influenza The Appellate Panel of the Workers’ Compensation Commission mischaracterized the medical evidence of causation and ignored other evidence that the smoke-inhalation injury, which the decedent-deputy suffered during three 12-hour shifts at a massive fire, was a proximate cause of his death.

We reverse the Appellate Panel’s decision, which overturned the single commissioner’s award of death benefits.

The Appellate Panel read equivocal testimony from the deputy’s treating physicians to mean that he died solely from complications from the flu, despite evidence that he was otherwise healthy and that smoke inhalation left him vulnerable to the flu.

The Appellate Panel did not lack a causation opinion. Despite this, it reached its own proximate cause conclusion based on an erroneous mischaracterization of the medical and circumstantial evidence.

The State of South Carolina, Horry County, and national law enforcement organizations recognized the deputy as having died in the line of duty.

Horry County Coroner Robert Edge,

8

Jr., testified he amended the deputy’s death certificate to change the manner of death from “natural” to “accidental” after reviewing Dr. William Largen’s Medical University of South Carolina death summary noting the deputy’s “smoke inhalation injury.” No physician has requested that Coroner Edge correct the death certificate as to the deputy’s manner of death.

Finally, Horry County Sheriff Phillip Thompson testified before the single commissioner that he met with the deputy at the start of his first shift working the Carolina Forest fire perimeter, and the deputy “seemed fine, seemed well,” with no coughing, sneezing, or redness in his eyes.

The deference required by our standard of review does not require us to ignore the Appellate Panel’s mischaracterization of the medical evidence.

Our review of the Appellate Panel’s order—in conjunction with the medical records, deposition transcripts, live testimony, and submitted expert opinions—convinces us that substantial evidence does not support the Appellate Panel’s findings, most notably, its statement that “no opinion of any doctor who actually treated Causey supports a finding that [the deputy] sustained any injury due to his alleged smoke exposure.”

Reversed.

Causey v. Horry County (Lawyers Weekly No. 012-001-22, 12 pp.)

(Stephanie McDonald, J.) (Thomas Huff, J., concurring in result only without separate opinion) Appealed from the Workers’ Compensation Commission. Francis Humphries, William Henry Monckton and Allison Paige Sullivan for appellant; Roy Allen Howell and Kirsten Leslie Barr for respondents. S.C. App. Unpub.

Criminal Practice Criminal Sexual Conduct with a Minor – Corroborating Testimony – Time & Place The state’s question to the victim’s foster father as to whether the victim told his foster father about the alleged incident with defendant and the “Yes” answer do not constitute bolstering since the foster father gave no opinion as to the victim’s credibility and he did not say whether he believed the victim’s disclosure. Furthermore, the trial court did not abuse its discretion in overruling defendant’s hearsay objection because the trial court properly limited the foster father’s answer to whether the victim disclosed the alleged incident’s time and place. Such testimony is not hearsay under Rule 801(d)(1), SCRE. We affirm defendant’s conviction for criminal sexual conduct with a minor in the first degree.

We acknowledge that following defendant’s initial hearsay objection, the state should not have added the phrase “that happened between him and his uncle.” However, the trial court adequately handled the situation by instructing the foster father

8 / OPINION DIGESTS to only give a yes or no answer as to whether the victim told him anything and to not discuss anything the victim said.

Moreover, the trial court continued to properly limit the foster father’s testimony regarding the victim’s disclosure to the time and place of the incident under Rule 801(d)(1), SCRE. Thus, we find the trial court did not err in overruling defendant’s objection.

Nonetheless, even if the trial court erred in overruling defendant’s objection to the state’s question, the error was harmless. The other evidence in this case—specifically the victim’s testimony that defendant sexually abused him; evidence of the victim’s consistent disclosures to other witnesses about the sexual abuse; and testimony from the victim and other witnesses that defendant was present in the victim’s Turbeville home at the time of the alleged sexual abuse, despite defendant’s assertion that he was in Rock Hill—make the state’s question identifying defendant as the alleged perpetrator in this case harmless Affirmed.

State v. Cameron (Lawyers Weekly No. 012-002-22, 6 pp.) (Per curiam) Appealed from Clarendon County Circuit Court (Craig Brown, J.) Tara Dawn Shurling for appellant; Alan McCrory Wilson, Joshua Abraham Edwards and Ernest Finney for respondent. S.C. App. Unpub.

Civil Practice Appeals – Dismissed Counterclaims – Pleading Amendment The circuit court dismissed defendant’s counterclaims, denied his motion to reconsider and did not rule on his motion to amend. This court remanded for consideration of the motion to amend, but our Supreme Court reversed, holding that the issue on appeal—whether the circuit court had erred in dismissing defendant’s counterclaims without allowing defendant to amend his pleadings—was not preserved for review. On remand, the circuit court nonetheless allowed defendant to amend his pleadings to allege “corporate code” violations and, after a trial, ruled for defendant. We reverse.

This court had already remanded the case so that the circuit court could consider the motion to amend; that decision was reversed by the Supreme Court. Had the Supreme Court intended for the circuit court to rule on the motion to amend, we believe it would not have reversed this court, or that it would have gone to greater lengths to spell out that it was not closing off that procedural avenue.

The circuit court ruled that the case was dismissed with prejudice a decade ago, then rejected a motion to reconsider more than a year later; this ruling was never altered on appeal. If the circuit court’s initial ruling, and the subsequent ruling by our Supreme Court, are to have any meaning, then defendant should not have been allowed to pursue his claim further.

Furthermore, allowing defendant to move forward with his counterclaims was erroneous because doing so would violate the statute of limitations. No appellate court modified the order to dismiss the case with prejudice. Therefore, defendant’s counterclaims remained dismissed, and could not be used for the purposes of the relate-back doctrine.

Reversed.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022

Andrews v. Broom (Lawyers Weekly No. 012-003-22, 7 pp.) (Per curiam) Appealed from Spartanburg County Circuit Court (Mark Hayes, J.) Matthew Terry Richardson, Whitney Boykin Harrison and James Edward Cox for appellant; Rodney Pillsbury for respondent. S.C. App. Unpub.

ert David Garfield for appellant; Neal Michael Lourie, Joshua Snow Kendrick and Christopher Shannon Leonard for respondent. S.C. App. Unpub.

Criminal Practice

Tort/Negligence

Murder – Victim’s Prior Bad Acts – Merchandise-Return Scam

FTCA – Derivative Sovereign Immunity – Contractor’s Expertise – Grate in Bike Path

In an attempt to show the victim’s control over him, defendant proffered evidence that she enlisted him to participate in her merchandise-return scam. However, the record supports the circuit court’s finding that defendant’s testimony and receipts failed to prove the victim’s alleged prior bad acts by clear and convincing evidence. Moreover, defendant failed to establish the relevance of the proffered “scam” evidence to the victim’s prior aggression against him or the question of whether he acted in selfdefense when he smothered her with bubble wrap “to make her stay quiet.”

The circuit court did not abuse its discretion in finding the financial scam evidence inadmissible.

We affirm defendant’s murder conviction.

Before his trial, defendant sought immunity under the Protection of Persons and Property Act. He argues the circuit court erred in declaring the expert testimony of Dr. Lois Veronen on battered person syndrome and defendant’s state of mind was not “appropriate” for the pretrial immunity hearing. However, the circuit court invited defendant to put his expert on the stand, and defendant failed to do so. Consequently, this issue is unpreserved for our review.

State v. Evangelista (Lawyers Weekly No. 012-004-22, 7 pp.) (Per curiam) Appealed from Beaufort County Circuit Court (Deadra Jefferson, J.) Robert Michael Dudek for appellant; Alan McCrory Wilson, Jeffrey Young, Donald Zelenka, Melody Jane Brown, William Joseph Maye and Isaac McDuffie Stone for respondent. S.C. App. Unpub.

Tort/Negligence False Arrest – Security Guard – Contract Premises At issue is whether the defendantsheriff’s deputies had probable cause to arrest plaintif, a nightclub security guard, for simple assault based on plaintiff’s handcuffing of McKenzie Williamson, who had tried to get into the club four times without paying and had made threatening gestures (gang signs and shooting gestures).

The deputies’ testimony that plaintiff had tackled Williamson and was off club premises when he handcuffed Williamson did not match their earlier statements, and their dashcam video was equivocal as to whether the handcuffing took place on or off club premises. Evidence supports the circuit court’s determination that the facts available to the arresting deputy, viewed from the standpoint of an objectively reasonable officer, did not provide probable cause for the deputy to arrest plaintiff for simple assault.

We affirm judgment for plaintiff.

Mack v. Lott (Lawyers Weekly No. 012-005-22, 8 pp.) (Per curiam) Appealed from the Circuit Court in Richland County (DeAndrea Benjamin, J.) Andrew Lindemann and Rob-

U.S. DISTRICT COURT

Where Fort Jackson (the Fort) awarded the defendant-contractor a design-build task order to resurface certain roads on the Fort, the Fort did not authorize the contractor to replace or modify any drainage grate that consisted of steel bars running with the flow of traffic. The contractor is not entitled to derivative sovereign immunity from plaintiff’s claim that the contractor’s negligent construction of a sunken drainage grate—consisting of equally spaced parallel steel bars running with the flow of underground stormwater and the road—caused the front wheel of her late husband’s bicycle to become lodged between the parallel steel bars, forcing the rear tire of his bicycle into the air, throwing his body onto the pavement, and causing his death from the impact of his body hitting the pavement.

The court denies the contractor’s motions to dismiss and for summary judgment.

The Federal Tort Claims Act explicitly excludes independent contractors from its scope, but Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940) created the concept of derivative sovereign immunity. Under Yearsley, a government contractor is not subject to suit if (1) the government authorized the contractor’s actions and (2) the government “validly conferred” that authorization, meaning it acted within its constitutional power.

Here, the Fort acted within its constitutional power to authorize the repaving of Hampton Parkway. The issue before the court is whether the Fort authorized the contractor’s actions.

The Fort did not provide the contractor a comprehensive construction design and specification plan to enact.

To the contrary, it sought the professional judgment of the contractor to design and resurface Hampton Parkway according to all applicable relevant laws and standards.

Consequently, the first element of Yearsley is unmet. The contractor is not entitled to derivative sovereign immunity.

The contractor argues plaintiff’s decedent, Dr. Frank Hill, was not a foreseeable plaintiff, as no evidence has been presented that the contractor was aware that bikers used Hampton Parkway. This assertion is contradicted by the record.

For example, the Fort’s statement of work required the contractor to “follow the recommendations of SDDCTEA Fort Jackson 2011 Comprehensive Traffic Study as [it relates] to signage and markings within [the] area of work.” The 2011 study included numerous references to bicycle traffic on the Fort, and the contractor’s project manager testified he received a copy of the 2011 study and reviewed it.

The court concludes the contractor owed a duty of care to Dr. Hill, a foreseeable plaintiff. A question of fact exists as to whether the work completed on Hampton Hill constitutes a breach of that duty.

And plaintiff has presented suf-

ficient evidence as to causation to overcome the contractor’s summary judgment motion. For example, one of plaintiff’s experts, along with a defense expert, “agree Dr. Hill flipped over the handlebars of his bicycle due to a sudden intense deceleration caused by him striking a fixed object” and “there is no other fixed object nearby” the accident site other than the sunken grate.

Motions denied.

Hill v. Associates Roofing & Construction, Inc. (Lawyers Weekly No. 002-001-22, 13 pp.) (Mary Geiger Lewis, J.) 3:19-cv-00958. Christopher Kenney, John Schmidt, Melissa Copeland, Richard Harpootlian and William Sweeny for plaintiff; Andrew Robert de Holl, Beth Drake, Carl Reed Teague, Kevin Lindsay Terrell, Heath McAlvin Stewart, Monica Towle, Stephanie Burton, Elizabeth Martineau and Meagan Lynn Allen for defendants. D.S.C.

Tort/Negligence SCTCA – Defamation – Malice – Publication Plaintiff alleges that her supervisors at the defendant-state agency defamed her by accusing her of falsifying documents. For purposes of this motion, the parties agree that plaintiff’s defamation claim is actionable per se because she alleges that the defamatory statements concern her fitness to perform her job. Accordingly, malice and special damages are presumed, and plaintiff’s claim is actionable based on the content of the supervisors’ statements without regard to their state of mind or intent to injure.

Consequently, plaintiff’s claim does not imply recklessness, wantonness, ill will or intent to injure. Therefore, defendant is not immune from plaintiff’s defamation claim under the South Carolina Tort Claims Act. It is recommended that defendant’s motion to dismiss be granted; however, plaintiff may amend her complaint to cure pleading deficiencies.

Plaintiff’s allegation that defendant “publicly [stated] that Plaintiff had falsified the documents and that she was being unprofessional and unethical” does not identify a specific person or persons to whom the statements were made and therefore fails to plausibly allege that defendant published the statements to a third party. Nor does plaintiff allege where and when the statements were made. Without such allegations, the complaint fails to state a defamation claim upon which relief can be granted.

Pettigrew v. South Carolina Department of Mental Health (Lawyers Weekly No. 002-002-22, 15 pp.) (Paige Gossett, USMJ) 3:21-2488.

Elizabeth Salley Millender for plaintiff; Richard Morgan and Chandler Elizabeth Aragona. D.S.C.

4TH U.S. CIRCUIT COURT OF APPEALS

Criminal Practice Government’s sentencing decisions limit ACCA collateral review Where the government chooses at sentencing to specify which of the convictions listed in the presentence report support an enhancement under the Armed Career Criminal Act, or ACCA, it cannot rely on collateral review on ACCA predicates that were not identified at sentencing to pre-

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10 / OPINION DIGESTS serve an enhancement that can no longer be sustained.

Background

Robert Benton Jr. was convicted of multiple offenses. For one of those offenses, possession of a firearm by a convicted felon, Benton was sentenced to 30 years’ imprisonment under the ACCA, which applies when a defendant has three or more prior convictions for a “violent felony” or “serious drug offense.” Benton filed a 28 U.S.C. § 2255 motion seeking to vacate his sentence, arguing that in light of intervening Supreme Court decisions narrowing the definition of “violent felony,” he no longer has three qualifying predicate convictions. The district court denied relief.

Analysis

In United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), this court held that the government cannot rely on collateral review on ACCA predicates that were not identified at sentencing, in order to preserve an enhancement that no longer can be sustained by the original predicates. Benton argues that under Hodge, it was improper in these collateral proceedings to treat as four separate predicates the Sept.

13, 1991, drug arrest listed as a single predicate in his pre-sentence report, or PSR. The court agrees.

Benton’s PSR specifically designated four ACCA predicates, listing the Sept. 13, 1991, drug arrest as a single predicate conviction. It is true, as the government argues, that the additional convictions it seeks to rely on now can be found in the criminal history section of Benton’s PSR. But that was true in Hodge, as well, and the very point of this court’s decision in that case: When the government “chooses to specify which of the convictions listed in the PSR it is using to support an ACCA enhancement,” it narrows the range of “potential ACCA predicates from all convictions listed in the PSR to those convictions specifically identified as such.”

Just as in Hodge, the “apparently intentional exclusion of some convictions” left Benton without notice that the government later might use those same convictions to support an ACCA enhancement. And lacking such notice, Benton had no reason at sentencing to argue—and perhaps good reason not to argue—that the overlooked convictions might qualify as four sepa-

rate predicate offenses.

The government also suggests that enforcing Benton’s right to notice in this case would be an empty formality. The court disagrees. The number of predicate offenses arising from an arrest is an important component of adequate notice. A single arrest that leads to multiple convictions is likely to implicate the ACCA’s requirement that predicate offenses be “committed on occasions different from one another”—a requirement that often entails a factually and legally complex analysis. Indeed, the district court here found that the four convictions listed in the PSR’s criminal history section constituted separate offenses only after a thorough examination of documents and application of this court’s multi-factored test.

Under Hodge, that crucial inquiry should have taken place at sentencing, not on collateral review: Benton is entitled to an opportunity to argue against ACCA predicates “at the time of sentencing,” when the government bears the burden of showing that a single arrest is for separate and distinct criminal offenses. The government, in short, has offered no meaningful ground for distinguishing Hodge from this case.

The government nevertheless contends that under the concurrent sentence doctrine, this court need not review Benton’s § 922(g) sentence.

Along with his 360-month sentence under § 922(g), Benton is serving two other concurrent 360-month sentences, for his convictions on Counts One and Three. As a result, the government reasons, a reduction in Benton’s § 922(g) sentence could have no effect on his overall sentence, so no purpose is served by reviewing that sentence on appeal. The court disagrees.

A court may not decline to review a sentence where the defendant may suffer adverse collateral consequences if the sentence is left unreviewed.

Here, it appears that, if the court were to leave Benton’s § 922(g) sentence unreviewed, he could be denied any effective benefit from a First Step Act sentence reduction on Counts One and Three.

Reversed, vacated and remanded.

United States v. Benton (Lawyers Weekly No. 001-017-22, 12 pp.)

(Pamela Harris, J.) Case No. 19-7471.

Jan. 24, 2022. From D.S.C. at Florence (Cameron McGowan Currie, S.J.) Shari Silver Derrow for Appel-

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022

lant. Michael Rhett DeHart for Appellee. 4th Cir.

Criminal Practice Waiver of PSR objections is ineffective assistance Where a woman charged with possession with intent to distribute had several meritorious objections to her presentence report that were waived by her trial counsel, and there was a reasonable probability that her sentence would have been reduced if the objections had been made, an en banc court found she received ineffective assistance of counsel.

Background

In 2017, Precias Freeman pleaded guilty without the benefit of a plea agreement to an indictment charging her with possession with intent to distribute hydrocodone and oxycodone.

She was sentenced to serve more than 17 years in prison. New appellate counsel then submitted an Anders brief requesting this court’s assistance in identifying appealable issues. It directed counsel to brief whether Freeman received effective assistance of counsel and whether her sentence is substantively reasonable.

Ineffective assistance

Freeman’s counsel waived a meritorious objection to the calculated drug weight in the presentence report, or PSR. At her initial sentencing hearing, the government agreed to revise the drug weight in Freeman’s initial PSR based on a statement she made as part of her proffer. Had it done so, Freeman’s base offense level would have been unchanged at 32. Instead, the revised PSR doubled Freeman’s calculated drug weight, resulting in a base offense level of 34.

Freeman’s probation officer must have relied primarily on Freeman’s own statements to support the presumption that she successfully filled two prescriptions a day. The increase in Freeman’s drug weight between the two PSRs based on substantially the same underlying information, and in contravention of the district court’s instructions to review Freeman’s proffer, strongly suggests that it was not proper. Further, the PSR did not account for Freeman’s personal opioid use, which, during the relevant period, she

reported was 60-80 pills a day. Freeman, therefore, had a strong argument that her drug weight calculation should have been reduced, thereby reducing her offense level by two points.

Freeman’s counsel also waived a meritorious objection to the PSR’s application of a two-level enhancement for obstruction of justice based on Freeman’s move to North Carolina while released on bond. Freeman had a non-frivolous argument that this enhancement was improper because her move was not deliberately obstructive.

By waiving Freeman’s objection to the upward departure for obstruction of justice, counsel also effectively lost the opportunity for Freeman to receive a downward adjustment for acceptance of responsibility.

Because counsel waived these objections, the district court adopted the factual findings of the revised PSR in full, and Freeman was sentenced under a guidelines range of 210 to 240 months. If any one of these meritorious objections had been successful, however, Freeman’s offense level would have been decreased by at least two levels, and she would have been sentenced under a lower guidelines range. And, if all of them had been successful, Freeman would have been sentenced under the significantly lower guidelines range of 97 to 121 months.

The government argues that counsel’s decision was a tactical decision that is entitled to deference. But a decision cannot have been tactical “if it made no sense or was unreasonable.”

At Freeman’s sentencing hearing, counsel was candid that he was waiving her objections because he did not believe they could “reduce the number that is relevant to this court.” But a cursory “investigation” would have revealed that this conclusion was wrong, and any reasonably competent attorney would not have made the same mistake.

That counsel’s deficient performance prejudiced Freeman is also apparent on the record here. Freeman had several meritorious objections to her PSR and, but for counsel’s unreasonable waiver of these objections, there was a reasonable probability that her sentence would have been reduced.

Finally, it is true that the court below stated it would have imposed an identical sentence as a variance, regardless of the calculated guidelines range. But, while this court has found

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I Feb ruary 28, 2022

that this type of statement by a sentencing judge may insulate a sentence from harmless error review, it declines to allow it to do so in the Strickland prejudice context. Here, it is clear from the record that, but for counsel’s unprofessional waiver of Freeman’s objections at sentencing, there is a reasonable probability that her sentence would have been different.

Vacated and remanded.

Dissent

(Quattlebaum, J., with whom Wilkinson, J., Nieyemer, J., Agee, J. and Rushing, J., join, dissenting): The record on direct appeal does not provide clear reasons for Freeman’s counsel’s decisions. Thus, we should not disregard our normal and prudent practice of evaluating a claim like this on collateral review where we would have the benefit of a fully developed record. Because the majority rejects this approach, and because doing so creates a real risk of an incorrect and unjustified decision, I respectfully dissent.

United States v. Freeman (Lawyers Weekly No. 001-018-22, 36 pp.)

(Roger Gregory, C.J.) (A. Marvin Quattlebaum Jr., J., dissenting) Case No. 19-4104. Jan. 25, 2022. From D.S.C. at Spartanburg (Timothy M. Cain, J.) Hannah Rogers Metcalfe for Appellant. William Jacob Watkins for Appellee. 4th Cir.

Administrative Agency failed to properly consider pipeline’s impact on fish Where the Fish and Wildlife Service failed to adequately evaluate the “environmental baseline” and “cumulative effects” for the Roanoke logperch and the candy darter within the right of way of a proposed pipeline, its biological opinion and incidental take statement was vacated.

Background

A collection of environmental nonprofit organizations challenge the Fish and Wildlife Service’s 2020 Biological Opinion and Incidental Take Statement, or BiOp, for the Mountain Valley Pipeline. Petitioners argue that the agency failed to adequately evaluate the “environmental baseline” and “cumulative effects” for two listed species: the Roanoke logperch and the candy darter. They also allege that the agency neglected to fully consider the impacts of climate change.

Past effects

The agency must evaluate the environmental baseline within “the action area.” In this case, the action area includes the pipeline construction right of way and waterbodies that may be impacted by the project. While the BiOp ably describes the range-wide conditions of the Roanoke logperch and the candy darter, it fails to adequately evaluate the environmental baseline for these species within the action area itself.

To begin, the BiOp’s evaluation of the environmental baseline for the logperch is sparse and scattered. In fact, other portions of the record suggest that a host of unaddressed stressors might already be impacting logperch in the action area. Even if the one-sentence recitation of general threats to the logperch passes as an action-area analysis—and it does not—there are several other factors it neglected to discuss. Regarding the environmental baseline for the candy darter, the agency never narrows its analysis to

focus on the specific action area.

The Fish and Wildlife Service argues it was not required to “provide an inventory” of “each activity that has occurred or is occurring in the action area.” But petitioners are not asking for a list of past and present activities; they are asking for the impacts of those activities to be accounted for—as required by the Endangered Species Act. And neither the Fish and Wildlife Service nor Mountain Valley adequately explain how the BiOp could account for these impacts if the activities giving rise to them are never even mentioned.

The Fish and Wildlife Service also argues that, since it incorporated the results of two population and risk-projection statistical models—one for the logperch and one for the darter—into the BiOp, it necessarily “account[ed] for all potential” “past and ongoing stressors in the action area.” This explanation isn’t found anywhere in the record. Moreover, it is it is hard to see how these models satisfy the agency’s burden to evaluate the environmental baseline within the action area when both models are general populationlevel models.

Cumulative effects

The Fish and Wildlife Service’s ostensive cumulative effects analysis— for all five studied species—is less than a page. The Fish and Wildlife Service and Mountain Valley argue once more that they were implicitly evaluated when the agency incorporated the logperch and darter models’ projections.

But the court fails to see how the sparse and scattered references to population-level analyses of “extinction risk” or “resiliency” were intended to pass for an evaluation of cumulative impacts within the “action area.” Even if they were, these “relatively simple” models fail to include numerous factors that can impact the logperch and darter, including climate change.

It is not clear whether the Fish and Wildlife Service should consider climate change as part of the environmental-baseline analysis, the cumulative-effects analysis or both. But for the court’s purposes, it makes no difference; the only question is whether the agency properly evaluated it at all.

It did not.

Jeopardy determination

Petitioners next contend—at the third primary step of the biologicalopinion process—that the Fish and Wildlife Service failed to incorporate its environmental- baseline and cumulative-effects findings into its jeopardy determinations for the logperch and darter. The court agrees. Because the Fish and Wildlife Service failed to properly evaluate the project’s environmental context at step two, its nojeopardy conclusions for the Roanoke logperch and candy darter at step three—which purport to fold these flawed evaluations into the agency’s analysis—are necessarily arbitrary.

Remaining arguments

Petitioners allege that the Fish and Wildlife Service (1) arbitrarily limited the scope of the action area; (2) erroneously excluded the Blackwater River from its logperch analysis and (3) crafted “unlawfully vague” incidental take limits for the logperch and darter.

None of these arguments have merit.

Vacated and remanded.

Appalachian Voices v. United States Department of the Interior (Lawyers Weekly No. 001-019-22, 40 pp.) (James A. Wynn Jr., J.) Case No. 20-2159. Feb. 3, 2022. On Petition for Review of Order of the United States

Fish and Wildlife Service. Elizabeth Fay Benson for Petitioners. Kevin William McArdle for Respondents. George Peter Sibley III for Intervenor. 4th Cir.

Administrative ALJ improperly relieved OSHA of its burden of proof Where the Occupational Safety and Health Administration, or OSHA, did not argue that a company’s safety program was inadequate to prove constructive knowledge during the trial or in its post-trial brief, the administrative law judge, or ALJ, erred by relying heavily on the inadequacy of the safety program in holding that the OSHA violations were foreseeable and therefore that the company had constructive knowledge of the violations.

Background

In November 2017, Eric Marsh, an employee of New River Electrical Corporation suffered severe burns when he picked up a live electrical wire at a job site. OSHA investigated the accident, determined that New River committed three serious violations of the applicable safety regulations and fined the company $38,802. An ALJ affirmed OSHA’s decision, although he decreased the penalty to $12,934.

New River now seeks review of that final order.

Analysis

To establish an OSHA violation, “the Secretary must prove by a preponderance of the evidence (1) the applicability of the standard, (2) the employer’s noncompliance with the terms of the standard, (3) employee access to the violative condition, and (4) the employer’s actual or constructive knowledge of the violation.”

The secretary generally may choose to prove that an employer failed to use reasonable diligence—and therefore that the violations were reasonably foreseeable such that the employer can be charged with constructive knowledge—by demonstrating that the employer failed to take specific risk-prevention measures on the job site where the accident occurred. This is the approach the secretary took with New River, arguing that the three violations at issue were foreseeable because New River did not create a “grounding plan” or conduct a proper risk assessment before beginning work that day.

This court’s precedents, which are largely in accord with most circuits that have addressed this issue, establish that the secretary may rely on the inadequacy of an employer’s safety program to prove that a violation was reasonably foreseeable and therefore that the employer had constructive knowledge of a violation. When the secretary relies on the inadequacy of a safety program to prove this element of his case-in-chief, the secretary must carry the burden of proof.

But the secretary may establish constructive knowledge without addressing the employer’s safety program at all. In those cases, an employer may still invoke the affirmative defense of unpreventable employee misconduct.

Under those circumstances—when the secretary does not raise the issue of the adequacy of the safety program but an employer invokes it as an affirmative defense—it is the employer who bears the burden of proving all four elements of the defense.

In this case, the secretary did not allege that New River’s safety program was inadequate to prove constructive knowledge. Instead, in his post-trial

brief, the secretary made two primary arguments in favor of finding that New River had constructive knowledge of the violations: (1) that New River did not create a grounding plan for the Madison Mills project and (2) that New River did not create a proper risk assessment before beginning its work.

The secretary, therefore, did not put New River’s safety program at issue during the trial or in his post-trial brief. Rather, New River raised the unpreventable-employee-misconduct defense and proffered evidence of its safety policies and disciplinary records to bolster that defense. The secretary’s post-trial brief only mentioned the safety program in response to New River’s affirmative defense.

In his written decision, however, the ALJ relied heavily on the inadequacy of New River’s safety program in holding that the foremen’s violations of OSHA safety regulations were foreseeable and therefore that New River had constructive knowledge of the violations. By relying almost exclusively on the inadequacy of New River’s safety program— an issue not raised by the secretary—to establish constructive knowledge, the ALJ essentially relieved the secretary of his burden to prove his prima facie case.

This improper allocation of the burden of proof cannot be deemed harmless error. If the secretary had chosen to argue the inadequacy of New River’s safety program, he had an obligation to put on evidence and advance those arguments initially. Then, New River would have been afforded the opportunity to respond directly to the arguments and evidence raised by the secretary.

Reversed and remanded.

New River Electric Corporation v. Occupational Safety and Health Administration (Lawyers Weekly No. 001-020-22, 22 pp.) (Thomas T. Cullen, J., sitting by designation) Case No. 20-2173. Feb. 1, 2022. From The Occupational Safety and Health Review Commission. Keith Louis Pryatel for Petitioner. Jin Young Chong for Respondent. 4th Cir.

Civil Rights Jury to decide if fatal shooting was warranted Where there were disputed facts over whether the decedent’s conduct provided justification for a state trooper to fire fatal shots, including that the officer claimed the man turned toward him while raising his hands, but the decedent was shot in the back, the officer wasn’t entitled to qualified immunity on summary judgment.

Background

Spencer Lee Crumbley was shot dead by West Virginia State Trooper Cory Elliott. According to Elliot, he lost sight of Crumbley during a foot chase. When Elliott turned a corner, he saw Crumbley turned away from him. Crumbley then abruptly turned toward Elliott and began to raise his hands, causing Elliot to believe that he might have a gun. That is when the shooting happened. As it turned out, Crumbley did not have a gun in his hands. But his conduct earlier in the encounter, including threats of violence and erratic behavior, added to the sudden hand movements, may well have been sufficient justification for Elliott’s split-second decision to use deadly force.

But one important detail calls Elliott’s story into question: Crumbley

12 / OPINION DIGESTS was shot in the back. Based on that detail, Jeffery Stanton, Crumbley’s son, sued for excessive force. The district court granted the troopers’ motion for summary judgment on all counts.

Qualified immunity

The court must consider whether there are any material disputes of fact left in this record that, when resolved, would amount to the violation of a clearly established constitutional right. If there are, summary judgment is inappropriate.

If the question before the court was whether—given the split-second nature of the decision— Elliott reasonably believed that Crumbley might have a weapon and might shoot, then the court may well find qualified immunity. Crumbley was erratic that day; he had threatened to shoot the troopers multiple times; he had swung a shovel at the troopers and the troopers knew that Crumbley had a gun on the property and was inclined to use it. With all that as context, Elliott may have made an objectively reasonable decision to react with deadly force to Crumbley’s abrupt hand movements.

But the court cannot simply accept the trooper’s statements as true given potentially contradictory physical evidence, and Elliot’s testimony here is at least in tension with some other evidence. Start with the obvious: Crumbley was shot in the back. Elliott says he started shooting when Crumbley turned toward him and began to raise his hands, and that the shot in the back must have happened because Crumbley continued to turn as the shooting went on. The shot in the back does not out-and-out refute that story, but it does draw it into question. Another explanation of that fact is that Elliott shot Crumbley while his back was turned.

The shot in the hand also complicates Elliott’s narrative. Elliott’s story is not unquestionably true given the placement of the wounds. So a reasonable jury, even without expert testimony, might consider these questions and determine that not just one but two shots struck the victim while his back was turned. Beyond the physical evidence, a reasonable jury’s doubt based on the physical evidence might find support in possible inconsistencies and omissions in Elliott’s story.

Taken as a whole, the totality of the evidence presented here creates a genuine fact question about whether Elliot’s story is true or whether Crumbley was shot while running away.

And if the jury finds that Crumbley was shot in the back while unarmed and running away, that would violate his clearly established rights. That is enough to defeat qualified immunity, at least at this point.

Remaining issues

The district court rightly questioned whether Trooper Cornelius could be held liable as a mere bystander. During oral argument, however, Stanton’s counsel expressly withdrew his bystander-liability claims against Cornelius. Stanton also asks the court to “either recalibrate or abolish” qualified immunity. This request is, of course, beyond the court’s say-so. Suffice to say that qualified immunity is “controversial, contested, and binding.”

Finally, Stanton’s state-law claims were dismissed because, according to the district court, he failed to properly plead those claims under the West Virginia Wrongful Death Act. The court finds that Stanton has made plausible allegations meeting the required showing under that statute, even if he has put those allegations under the

wrong headings.

Reversed in part, affirmed in part and remanded.

Stanton v. Elliott (Lawyers Weekly No. 001-021-22, 20 pp.) (Julius N. Richardson, J.) Case No. 21-1197, Feb. 1, 2022. From N.D. W.Va. at Elkins (John Preston Bailey, J.) James Anthony McKowen for Appellant. Michael Deering Mullins for Appellees.

4th Cir.

Constitutional Prison’s single-vendor policy did not violate Muslim detainee’s rights Where a practicing Muslim detainee argued that he should not be forced to purchase his prayer oils from a commissary that sells swine and idols because Islam prohibits buying religious items from such vendors, the corrections department prevailed at trial on the Religious Land Use and Institutionalized Persons Act, or RLUIPA, claim because the single-vendor policy was the “least restrictive means” of furthering a compelling governmental interest.

Background

Brad Faver, an inmate in the custody of the Virginia Department of Corrections, or VDOC, and a practicing Muslim, commenced this action alleging that the VDOC had denied him the ability to practice tenets of his religion in violation of the RLUIPA. Specifically, he alleged that, because of the VDOC’s single-vendor policy for its commissaries, he was required to purchase “his perfumed oils [for prayer] from Keefe Commissary,” which also happens to sell “swine and idols” to other inmates. He alleged that “Islam prohibits the acquisition of religious accoutrements from a company that sells swine and idols.”

Following a bench trial, the district court concluded that the VDOC did not violate Faver’s rights under RLUIPA. It concluded that the policy furthered the VDOC’s compelling interest of “preventing contraband, which promotes prison safety and security, and reducing the time prison personnel must devote to checking commissary shipments, which controls costs.”

The court found further that the policy was “the least restrictive means to further its compelling interests.”

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022

some of the problems the VDOC experienced before its single-vendor policy, such as burdensome searches of commissary orders and increased risk of introduction of contraband into the facilities.” VDOC testimony supports that finding.

Moreover, it is far from clear that the VDOC could simply add a single Islamic vendor. The VDOC has authorized more than 40 religious groups in its facilities, and members of each of these would be entitled to request an arrangement with another vendor should Faver prevail here.

There would also be practical problems in qualifying each vendor. The vendor would have to be willing to fulfill the requirements imposed on Keefe, including background checks, audits and specialized training. It would also have to be willing to use an ordering process for inmate purchases that would remain blind to the inmate. With each additional vendor, therefore, the VDOC would have to devote more staff time to administering the procurement of items, undermining an efficiency that the singlevendor policy provided. And with respect to adding a vendor specifically to provide prayer oil, the VDOC would face unique security and safety problems, as the district court found in a well- supported finding.

Affirmed.

Dissent

(Motz, J.): Under the RLUIPA, the government bears the burden of showing that a challenged prison policy “is the least restrictive means of furthering [a] compelling governmental interest.” To satisfy this burden, the government must “demonstrate that it considered and rejected” less restrictive alternatives proposed by the inmate. The VDOC has failed to demonstrate that it considered and rejected a less restrictive alternative to its single-vendor policy. Accordingly, I dissent from the majority’s contrary holding.

Faver v. Clarke (Lawyers Weekly No. 001-022-22, 21 pp.) (Paul V. Niemeyer, J.) (Diana Gribbon Motz, J., dissenting) Case No. 19-7634. Feb. 1, 2022. From W.D. Va. at Roanoke (Joel Christopher Hoppe, M.J.) Dallas S. LePierre for Appellant. Laura Haeberle Cahill for Appellee. 4th Cir.

Criminal Practice

Analysis

In this appeal, the VDOC does not dispute that its single-vendor policy substantially burdens Faver’s religious exercise, and Faver does not dispute that the policy furthers a compelling governmental interest. The parties disagree, however, on whether the policy is the “least restrictive means” of furthering the compelling governmental interest.

Faver has brought to the VDOC’s attention two alternatives to the single-vendor policy that would allow him to obtain prayer oil that complies with his religious beliefs. First, he has proposed a “centralized exception” that would create an approved list of various religious vendors from which inmates could purchase approved religious items. Second, he has proposed that the VDOC enter into a contract with an Islamic vendor, similar to the contract it entered into with its single commissary vendor Keefe.

However, as the district court found—a finding that Faver has not challenged as clear error—“a contract with another outside vendor would again force the VDOC to work with multiple vendors, resurrecting at least

Exigent circumstances support warrantless ‘ping’ of cellphone Where the defendant’s former girlfriend told police he had broken into her home, was armed and threatened to kill her, her family or law enforcement; the police found her credible and the defendant had a violent criminal history, exigent circumstances supported a warrantless request to the cellphone provider for a “ping” of the defendant’s cellphone.

Background

In this appeal, Erick Hobbs primarily challenges the district court’s denial of his motion to suppress evidence obtained after police collected cellphone location data from his cellphone provider without a warrant on the ground of exigent circumstances.

In supplemental briefing on appeal, Hobbs argues that the district court erred in failing to comply with the requirements of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which was decided while this appeal was pending.

Analysis

This court has not previously considered the exigent circumstances exception in the context of police use of a cellphone “ping” along with call logs from a suspect’s cellphone. The court finds instructive the Second Circuit’s analysis in United States v. Caraballo, 831 F.3d 95 (2d Cir. 2016).

There, after the defendant was suspected of murdering an informant working with law enforcement, the police obtained without a warrant a “ping” on the defendant’s cellphone.

The murder victim, a fellow drug dealer, had informed police several months earlier that the defendant would kill her if he ever learned that she was cooperating with the police. The police also knew that the defendant had access to firearms and previously had committed certain violent crimes.

The Second Circuit concluded that exigent circumstances justified the officers’ failure to obtain a warrant for access to the defendant’s cellphone “pings.” The court observed that the officers (1) had “good reason to believe” that the defendant was armed, (2) were aware that he was the primary suspect in a brutal murder and (3) most importantly, had “specific reasons to think” that he would act to kill undercover officers and other informants who had infiltrated his drug operation.

Although the officers could have secured a warrant within about six hours, the defendant’s cellphone provider typically took multiple days to respond to a warrant seeking such information but would act immediately to comply with any “exigent” request for the same information. And finally, the court noted that police intrusion on the defendant’s privacy interests was relatively limited, because the officers’ use of the “pings” was “strictly circumscribed” and the officers located the defendant within two hours.

The same reasoning applies here.

When Hobbs’ former girlfriend, Jaquanna Foreman, recounted Hobbs’ actions to the police, she was trembling and distraught, explaining that Hobbs was armed and had threatened to kill her, her minor daughter, other family members and any law enforcement officers who might try to apprehend him.

Foreman stated that Hobbs had brandished a handgun during the incident, owned an assault rifle and was “obsessed with firearms.” Before submitting the “exigent form” to T-Mobile, the officers confirmed that Hobbs had a violent criminal history, including convictions for robbery and attempted murder. After assessing that Foreman’s account was credible and observing the damage to her home, the officers had probable cause to conclude that Hobbs had broken into Foreman’s home and had committed an assault and a theft inside.

The record additionally shows that the extent of the intrusion on Hobbs’ privacy rights was reasonably confined to the exigency. Therefore the district court did not clearly err in finding that “the only way to get help from T-Mobile” in a timely fashion was by submitting an “exigent form.

Rehaif

Hobbs argues that he is entitled to vacatur of his conviction because the indictment did not allege, and the jury was not instructed to find, that Hobbs knew he was a felon at the time of the offense, as required by Rehaif. Although it is undisputed that the district court erred in failing to instruct the jury on the mens rea required for a conviction under section 922(g), and

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that the indictment was defective for failing to allege this element of the offense, Hobbs has not established that these errors affected his substantial rights. Hobbs has failed to carry his burden of showing a reasonable probability that he would not have been convicted absent the Rehaif error.

Affirmed.

United States v. Hobbs (Lawyers Weekly No. 001-023-22, 13 pp.)

(Barbara Milano Keenan, J.) Case No. 19-4419. Feb. 1, 2022. From D. Md. at Baltimore (Deborah K. Chasanow, S.J.) Joshua Elliott Hoffman for Appellant. Brandon Keith Moore for Appellee. 4th Cir.

Criminal Practice ‘Abuse of trust’ sentencing enhancement applied to executive Where a company executive vice president convicted of willful failure to collect or pay taxes and making materially false statements to federal agents conducted the company’s affairs with significant discretion, particularly in relation to delinquent payroll taxes, the district court did not err in applying an abuse-of-trust enhancement at sentencing.

Background

Teresa Blankenship Barringer was the longtime executive vice president, or EVP, and a board member of J&R Manufacturing Inc. Her responsibilities as EVP included managing J&R’s accounting, payroll, sales and accounts receivable, while her duties as a board member included collecting and paying federal payroll taxes. In this appeal, she challenges her convictions and 36-month sentence for multiple counts of willful failure to collect or pay over taxes and making materially false statements to federal agents.

Pretrial motion

Barringer first contests the district court’s denial of her pretrial motion to dismiss the wire fraud and false statement counts. Specifically, she asserts that the wire fraud charges were deficient because her actions did not deprive another of a property interest. Any error as to the district court’s denial of Barringer’s pretrial motion to dismiss the wire fraud counts was harmless, however, because it subsequently granted her motion for a judgment of acquittal on these charges.

Although Barringer responds that she was prejudiced by impermissible spillover evidence from the wire fraud counts that tainted the jury’s consideration of the remaining counts, the court does not find that argument convincing.

Regarding the false statement counts, Barringer contends that, given the invalidity of the wire fraud counts, her statements to investigators were not “material to a matter within the jurisdiction of the agency.” But her understanding of both of those terms is too constrained. Finally, the court is persuaded that substantial evidence supports Barringer’s conviction on the false statement counts, so the district court did not err when it declined to grant her motion for a judgment of acquittal on the false statement counts.

Due process

Barringer also raises a due process claim, asserting that the government knowingly relied on the “patently false” testimony of Ron Vincek, the senior director of 401(k) operations for the company’s 401(k) retirement plan administrator, that Barringer’s

actions could have put J&R’s entire 401(k) plan in jeopardy.

The court detects no plain error here. At bottom, the court is unconvinced that Vincek’s testimony was patently false. In fact, Vincek’s testimony that Barringer’s improper distributions “could” “put the entire 401(k) plan in jeopardy” “for the whole company” was plausibly accurate because her actions could have impacted the plan’s tax-favored status. Even if that result may not have been a likely one, it was not an incorrect statement of the potential legal consequences of Barringer’s actions.

Therefore, her due process claim fails.

Sentencing

The court now turns to Barringer’s arguments on the abuse-oftrust enhancement under § 3B1.3.

The guidelines provide for a twolevel enhancement “if the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.”

Barringer first contends that the district court erred when finding that she occupied a position of trust.

The court disagrees. Barringer’s corporate role and the discharge of her duties sufficiently demonstrate that she conducted J&R’s affairs with significant discretion and occupied a position of trust, particularly related to the delinquent payroll taxes, because her position was “characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).”

Barringer nonetheless argues that the Sixth Circuit’s decision in United States v. May, 568 F.3d 597 (6th Cir. 2009), shows that her responsibilities do not support an abuse-of-trust enhancement. However, May’s underlying principles on discretion actually support the court’s conclusion here. Considering Barringer’s discretion as the dispositive factor, as the Sixth Circuit contemplated, the court would readily conclude that she occupied a position of trust.

Finally Barringer claims that the district court erroneously applied this enhancement because it results in double-counting. That is to say, she posits that an element of her tax-fraud conviction includes the same conduct as that penalized by the enhancement (occupying a position of trust), meaning she is ineligible for the enhancement. The court disagrees.

Affirmed.

United States v. Barringer (Lawyers Weekly No. 001-024-22, 33 pp.) (G. Steven Agee, J.) Case No. 20-4584. Feb. 2, 2022. From W.D. Va. at Abingdon (James P. Jones, S.J.) Gerald Thomas Zerkin for Appellant. Jennifer R. Bockhorst for Appellee. 4th Cir.

Immigration Deferential standard of review rejected In an issue of first impression, where the government argued that the immigration judge’s decision should be upheld so long as it was based on a “facially legitimate and bona fide reason,” the court joined two circuits in rejecting this argument.

That standard was developed in a limited setting of denying visas and does

not translate to this context, which is to determine whether an asylum seeker reasonably fears prosecution or torture if he is returned to Guatemala.

Background

After Adan de Jesus Tomas-Ramos reentered the United States illegally, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas- Ramos failed to establish a reasonable fear of such harm. An immigration judge, or IJ, concurred with that determination.

Tomas-Ramos now contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was erroneous. In addition, TomasRamos argues that his rights were violated when his lawyer was denied a chance to make a closing statement.

Standard

The government argues that, instead of the usual substantial evidence standard, the court should apply a still more deferential standard and uphold the IJ’s decision so long as it was based on a “facially legitimate and bona fide reason.” The court now joins two other circuits and rejects this argument.

The “facially legitimate and bona fide reason” standard of review sought by the government was developed “in a limited and distinctive setting: challenges to government decisions to deny visas.” Those principles do not translate to this context because, while the executive has nearly unfettered discretion over visa determinations, the executive’s discretion is not unfettered here.

Reasonable fear

To establish a reasonable fear of persecution, Tomas-Ramos must show “a reasonable possibility that he [] would be persecuted on account of his [] race, religion, nationality, membership in a particular social group or political opinion” if returned to Guatemala. He credibly testified to having received death threats from a gang attempting to recruit his son, and this court has expressly held that “the threat of death qualifies as persecution.”

The asylum officer recognized that Tomas-Ramos might have been threatened because of his relationship to his son, but held that immediate family is not a qualifying “particular social group” because it “lacks social distinction.” The asylum officer held that the gang’s threats against Tomas-Ramos did not give rise to a reasonable fear of persecution based on a protected ground. That reasoning was in error.

The government argues, however, that this error does not matter, because the IJ correctly held that there was no nexus between TomasRamos’s relationship to his son and the threats against him. This court cannot agree. Tomas-Ramos’s consistent testimony—which the asylum officer found credible, and the IJ never questioned—was that gang members threatened to kill him because he resisted their efforts to recruit his son, preventing him from joining the gang.

This court has held that the nexus requirement is satisfied in precisely that scenario.

Relocation

The government argues that the court still may affirm the negative reasonable fear determination on an

alternative basis: the IJ’s additional finding that “[Tomas-Ramos] can relocate.” The court disagrees.

Because the IJ incorrectly believed that Tomas-Ramos had not established past persecution, she never had the opportunity to assess relocation under the proper framework. In evaluating Tomas-Ramos’s testimony that he could not safely relocate because gang members would search for him wherever he moved, the IJ could not take into account what is now presumed: that Tomas-Ramos has a wellfounded and reasonable fear that if he is returned to Guatemala, he again will be subjected to persecution.

In these circumstances, the court follows its ordinary rule of vacating and remanding so that the agency may make the relevant factual assessments under the proper standard and in the first instance. Tomas-Ramos’s torture claim is also remanded to the agency for further consideration.

Counsel

Given the court’s disposition of Tomas-Ramos’s underlying claims, it would be premature to resolve TomasRamos’s remaining argument: that the IJ violated a statutory right to counsel by denying his counsel’s request to speak at the end of his reasonable fear review hearing.

On remand, the IJ may allow counsel to participate to the extent TomasRamos contends is required. At a minimum, counsel will have the opportunity to request whatever forms of participation they believe to be required, and to object on the record if they are denied, giving the IJ an opportunity to consider those objections and sharpening the issues for review.

Petition for review granted, vacated and remanded.

Tomas-Ramos v. Garland (Lawyers Weekly No. 001-025-22, 25 pp.)

(Pamela Harris, J.) Case No. 20-1201, Feb. 2, 2022. From an Order of an Immigration Judge. Michael D. Lieberman for Petitioner. Patricia E. Bruckner for Respondent. 4th Cir.

Tort/Negligence Netherlands agency immune from stolen artwork claim Where the plaintiff sued to recover paintings taken under duress by the Nazis following the German invasion of the Netherlands in 1940, the Ministry of Education, Culture & Science of the Netherlands was entitled to sovereign immunity under the Foreign Sovereign Immunities Act, or FSIA, because its core functions were predominantly governmental.

Background

Bruce Berg, a resident of South Carolina, brought suit for recovery of paintings and other works of art taken under duress by the Nazis following the German invasion of the Netherlands in 1940. Berg sued the Kingdom of the Netherlands; Ministry of Education, Culture & Science of the Netherlands; Cultural Heritage Agency of the Netherlands, or RCE, and several private and public municipal museums in the Netherlands holding the artworks.

The district court held that the ministry and RCE are political subdivisions of the Netherlands entitled to sovereign immunity under the FSIA. Second, it held that the municipal and private museums had insufficient contacts with South Carolina to support the court’s exercise of personal jurisdiction and that venue was not proper

14 / OPINION DIGESTS in South Carolina as to them. Fourth, it concluded that the allegations were insufficient to show that Berg had a legally cognizable interest providing him standing to sue.

Berg appealed some, but not all, of these rulings. The opening brief did not appeal the district court’s dismissal of several party defendants, including the Kingdom of the Netherlands and the private museums. Nor did the opening brief directly raise as a ground for appeal the district court’s dismissal for lack of venue over the municipal museums. As such, this appeal concerns only two groups of defendants: (1) the Ministry and RCE and (2) the four municipal museums.

FSIA

The only applicable exception to sovereign immunity under the FSIA in this case is the expropriation exception. Under the dichotomy employed in the statute, legally separate agencies and instrumentalities may lose their sovereign immunity under the second clause of the expropriation exception, while legally inseparable political subdivisions cannot.

At the district court, Berg acknowledged that the “Ministry’s core functions appear to be: (1) to set policy and regulate education, culture and media and (2) to invest in research, the media, and cultural functions, and to fund artists.” Nevertheless, both at the district court and on appeal, Berg ignores the expansive scope of the ministry’s functions and takes a decidedly myopic view, focusing only on its “funding and investing in various initiatives” and “property management.” Because a private player in the market could engage in investment or property management, Berg argues that the ministry’s core function is commercial.

But Berg’s focus on this narrow aspect of the ministry’s broad functions runs contrary to the inquiry demanded by the core functions test― “whether the core functions of the foreign entity are predominantly governmental or commercial.” Plainly, on this record, the core functions of the ministry, encompassing all aspects of the government of the Netherlands relating to education, culture and science are predominantly governmental. Other courts considering such issues have considered entities similar to the ministry to be political subdivisions and applied FSIA immunity.

Berg relies on the decision of the district court in the District of Columbia in de Csepel v. Republic of Hungary. Unlike the plaintiffs in de Csepel II, however, the record is devoid of any suggestion by Berg that the ministry has any separate identity from the government of the Netherlands.

In sum, the record supports the district court’s finding that the ministry, and thus RCE, are political subdivisions of the Netherlands and do not lose FSIA immunity for artworks located outside of the United States which were expropriated in violation of international law.

Venue

The district court found that subsection 28 U.S.C. 1391(f)(3) governed the municipal museums as agencies or instrumentalities of the Netherlands. That subsection permits venue in any judicial district in which an agency or instrumentality “is licensed to do business or is doing business.”

Though the district court found the municipal museums had engaged in commercial activity in the United States, the allegations of nationwide solicitation and sales did little to show

that the municipal museums are “doing business” in the District of South Carolina. On appeal, Berg nowhere challenges this ruling.

Defendants filed a motion for summary affirmance arguing that the failure to challenge the dismissal of the municipal museums dooms his appeal as it relates to the municipal museums. In his response, Berg argues that following remand, venue should be transferred to the District of Columbia pursuant to 28 U.S.C. § 1406(a). Berg notes that dismissal, rather than transfer, may limit the causes of action he may bring should he be required to refile in the District of Columbia because of the running of the statute of limitations.

But Berg never asked the district court to transfer venue to the District of Columbia. As such, the district court’s dismissal for lack of venue over the municipal museums is forfeited.

Affirmed.

Berg v. Kingdom of the Netherlands (Lawyers Weekly No. 001026-22, 20 pp.) (Michael F. Urbanski, J., sitting by designation) Case No. 20-1765, Feb. 3, 2022. From D.S.C. at Charleston (Bruce H. Hendricks, J.) Daniel Woofter for Appellant. Samuel Batiste Hartzell and Sarah Erickson Andre for Appellees. 4th Cir.

Consumer Protection Magistrate judge’s jurisdiction not affected by absent class member Where 28 U.S.C. § 636(c) provides a magistrate judge with jurisdiction to approve a class action and enter judgment only by consent of the parties, the court, in a case of first impression, joined every other circuit to address the issue in holding that absent class members aren’t “parties.”

Background

This case arises from a class action alleging that Nationstar Mortgage LLC violated federal and state consumer-protection laws in servicing the class members’ mortgage loans.

Following protracted litigation, Nationstar and the Robinsons negotiated a $3 million settlement. Pia McAdams, a class member, objected to the settlement, arguing that the class notice was insufficient; the settlement was unfair, unreasonable and inadequate; the release was unconstitutionally overbroad and the attorneys’ fee award was improper. A magistrate judge (acting on a referral by the district court) overruled McAdams’s objections.

Jurisdiction

The magistrate judge could approve the class action and enter judgment only by consent of the parties.

McAdams asserts that “parties” for purposes of 28 U.S.C. § 636(c) include absent class members, like her. This is a question of first impression in this circuit.

But every other circuit to address the issue has concluded that absent class members aren’t parties. This court now joins them, holding that the magistrate judge had jurisdiction to approve the settlement. Because the contemporary, common meaning of “parties” excludes absent class members and the statute lacks signs showing any legislative intent to classify them as such, the court concludes “parties,” as used in § 636, doesn’t include absent class members.

Notice

The parties dispute the court’s

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standard of review. It hasn’t spoken on this question, and other circuits are split. Two circuits review a district court’s finding on the adequacy of class action notice for abuse of discretion. Three others review the issue de novo. But even assuming de novo review is proper, the class notice was adequate.

The magistrate judge approved three types of notice—email, postcard and longform. The settlement administrator emailed notice to class members for whom it had an email address. It also mailed notice to class members for whom it had a physical address. And it searched a national database to update the addresses for those whose postcard notice was returned as undeliverable. Both the email and postcard informed class members that there was a $3,000,000 settlement fund, explained how to file a claim and presented the option to opt-out. They also listed a website and telephone number where class members could get the longform notice.

In sum, the methods of notice here fairly apprised class members of the proceedings as well as their options.

Class members had access to information about the total settlement, attorneys’ fees and distribution method.

The notices also provided them with the means to find more information if they wanted it. Thus, the notices were adequate.

Fair, reasonable and adequate

McAdams next contests the magistrate judge’s finding that the settlement was fair, reasonable and adequate. McAdams doesn’t claim that the magistrate judge failed to address the relevant criteria under Federal Rule of Civil Procedure 23(e)(2)(C) and addressed the factors from In re Jiffy Lube Securities Litigation, 927 F.2d 155 (4th Cir. 1991); nor does she argue that he improperly weighed them. Instead, she complains that the magistrate judge “failed to make a ‘rough estimate’ of what class members would have received had they prevailed at trial.” But this court has never required such an estimate.

Even the out-of-circuit cases McAdams cites don’t require an estimate in every case.

In any event, while the magistrate judge didn’t estimate the potential recovery should the case proceed to trial, he found that most class members “probably only had nominal damages.” That’s consistent with the resulting settlement.

Remaining arguments

McAdams also argues the settlement release is “ambiguous, overbroad, and beyond the permissible scope of release for class action settlements.” The court disagrees. The release is tied to cases arising out of a set action and time frame.

Finally, McAdams contends that the magistrate judge abused his discretion by approving the $1,300,000 attorneys’ fee request because: (1) the magistrate judge didn’t comply with Rule 23(h)(3)’s requirement that he “find the facts and state [his] legal conclusions”; (2) the attorneys’ fee award constitutes an unacceptably large portion of the overall award and (3) the “clear sailing” provision is impermissible. All three challenges fail.

Affirmed.

McAdams v. Robinson (Lawyers Weekly No. 001-027-22, 23 pp.) Albert Diaz, J. Case No. 21-1087. Feb. 10, 2022. From D. Md. at Greenbelt (Timothy J. Sullivan, M.J.) Michael T. Houchin for Appellant. Jonathan K. Tycko and Erik Wayne Kemp for Ap-

pellees. 4th Cir.

Administrative Jurisdiction found lacking over Navy contractor’s suit Where a federal contractor sought clarification on whether the nature of its Navy service contract made it subject to California’s labor laws, the suit was dismissed because the contractor failed to satisfy the exhaustion requirements of the Contract Disputes Act or CDA.

Background

In 2015, employees of a Navy services contractor, Systems Application & Technologies Inc., or SA-TECH, sued the contractor in California state court for violations of the state’s labor laws. Before and during that suit, SATECH sought guidance from the Navy as to whether California’s labor laws applied to it and its subcontractors, given the federal nature of its service contract. When its requests went unanswered, SA-TECH filed a claim with its contracting officer under the CDA. The contracting officer denied the claim.

SA-TECH then filed a complaint in federal district court in Maryland, seeking declaratory and injunctive relief. The district court dismissed the complaint for lack of subject matter jurisdiction pursuant to the CDA’s exhaustion requirements.

Count One

SA-TECH’s claim in Count One concerned whether it is an agent of the Navy. The parties agree that this claim is nonmonetary. SA-TECH therefore could have satisfied the exhaustion requirement by asserting a claim for (1) “the adjustment or interpretation of contract terms” or (2) “other relief arising under or relating to th[e] contract.” Either way, it needed to show that it was entitled to seek the contract interpretation or other relief “as a matter of right.” The court agrees with the district court that SATECH failed to meet this standard.

SA-TECH failed to point to a specific contract term whose meaning required adjustment or interpretation.

Instead, SA-TECH primarily argues that the control exercised by the Navy over SA-TECH and its operation of some Navy ships, as evidenced by the contracts and other facts in the record, proves that SA-TECH is the Navy’s agent under the Vessels and Admiralty Acts. It then demands the Navy confirm, or this court declare, that position to be true.

The court agrees with the district court that SA-TECH’s agency-status claim does not truly seek an interpretation or adjustment of any contractual terms, but instead requests “other relief” relating to the contracts. However, SA-TECH’s claim fares no better under the “other relief” prong. Even allowing that the relief sought “[relates to the contracts],” SA-TECH has not shown it is legally entitled to the opinion it seeks “as a matter of right.”

The district court’s ruling as to Count One is affirmed.

Counts Two and Three

Counts Two and Three are SATECH’s claims concerning wage and overtime payments under California law. Although the district court acknowledged that “the distinction between monetary and non-monetary claims is not always straightforward,” it ultimately concluded that these counts primarily sought monetary

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payment. This court agrees.

SA-TECH maintains that its request—declaratory relief as to whether a California Supreme Court decision (Mendiola) applies, and, if so, whether the government will allow settlement, sleep-time or other costs—is a valid, future-looking nonmonetary claim.

SA-TECH argues that these questions implicate significant consequences, unrelated to money damages, such as an interpretation of governing law. It further contends that the approach adopted by the district court, which looked to whether the “gravamen” of the claim was money, would turn all contract claims into monetary damages claims, since money is inherently at issue in all contracts.

The court disagrees and concludes that SA-TECH seeks indemnification by another name. To be sure, the initial claim and complaint also request a decision regarding whether Mendiola or federal law govern wage-time provisions under the contract. However, it is not clear what specific contract clause or rate schedule, if any, SA-TECH requests interpretation of.

What SA-TECH wants this court to do, either explicitly or in effect, is to declare whether California or federal labor law applies to all “future missions under the 2013 Contract,” irrespective of any applicable contract provisions or particular SA-TECH subcontractors. In turn, SA-TECH wishes for the Navy to “support (financially and legally) its interpretation” by guaranteeing any necessary payments of unknown settlement and labor costs.

Counts Two and Three are monetary claims for which SA-TECH did not present a requested sum certain, as required to exhaust its remedies.

Accordingly, the district court correctly dismissed SA-TECH’s claims under Counts Two and Three.

Affirmed.

Systems Application & Technologies Inc. v. United States (Lawyers Weekly No. 001-028-22, 29 pp.) (James A. Wynn, Jr.) Case No. No. 20-2275. Feb. 14, 2022. From D. Md. at Greenbelt (Paula Xinis, J.) Craig Alan Holman for Appellant. Anne Murphy for Appellee. 4th Cir.

Arbitration Dispute over trust agreement’s coverage isn’t arbitrable Where parties to a trust agreement disputed which employers were covered by the agreements, neither the statute nor the trust agreement required the dispute to be arbitrated.

Background

Under the Labor Management Relations Act, unions and management can enter into trust agreements to provide employment benefits. And sometimes the management of several employers join together to reach those agreements with a union. When that happens, disputes may arise about adding or removing employers from the trust agreement’s coverage.

In this appeal the court must decide, whether by statute or agreement, labor unions and management are required to arbitrate disputes about which employers are covered by the trust agreements that create funds for employee benefits.

Statute

The union trustees argue that 29 U.S.C. § 186(c)(5)(B) compels arbitration of the dispute over amending the definition of “employer” in the trust agreements. But § 186(c)(5)(B)’s arbi-

tration provision applies only in a narrow set of circumstances. That section provides that in the event of a “deadlock on the administration of such fund,” an arbitrator resolves “such deadlock.” Thus, to the extent that arbitration must occur under § 186(c)(5) (B), it is only over the “administration” of employee benefit trust funds.

This court has not yet interpreted the term “administration” in § 186(c) (5)(B), but some other circuits have.

The court agrees with these courts, which have held that amending the trust agreements, which would be changing how the trusts are constituted, is not part of managing the trusts or administering the trusts. This understanding also comports with the rest of the statutory language in § 186(c)(5)(B).

In arguing that § 186(c)(5)(B) includes amending the definition of “employee,” the union trustees primarily rely on Barrett v. Miller, 276 F.2d 429 (2d Cir. 1960) and Emp. Trustees of W. Pa. Teamsters v. Union Trustees of W. Pa. Teamsters (Western Pennsylvania Teamsters), 870 F.3d 235 (3d Cir. 2017). However, these cases do not advance the union trustee’s position.

Finally, the union trustees also cite to this court’s decision in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union AFL-CIO/CLC, Local No. 850L v.

Continental Tire North America, Inc., 568 F.3d 158 (4th Cir. 2009), which compelled arbitration under 29 U.S.C. § 185. This decision, however, has no bearing for interpreting § 186(c)(5)(B), which is the statutory provision at issue here.

In sum, the authority on which the union trustees rely is not persuasive.

Section 186(c)(5)(B) does not provide a valid reason to compel arbitration over the proposal of the union trustees to expand the definition of “employer” in the trust agreements.

Marvin Quattlebaum Jr., J.) Case No. 21-1260. Feb. 15, 2022. From D. Md. at Baltimore (George L. Russell III, J.) Ashley Evangeline Macaysa for Appellants. Michael J. Collins for Appellees.

4th Cir.

Agreement

Analysis

The union trustees argue that, independent from § 186(c)(5)(B), arbitration may be compelled by contract.

Section 8.01 confers arbitration “in the event the Trustees cannot decide any matter or resolve any dispute because of a tie vote.” But § 8.01’s reach is limited by § 8.03, which states: “[t]he arbitrator shall not have the power or authority to change or modify the basic provisions of this Agreement.” At oral argument, the union trustees’ counsel conceded that the term “employer,” which as stated above determines, among other things, who contributes to the trusts, is a “basic provision” of the trust agreements. And for good reason.

Determining which entity must contribute to the trust agreements goes to the “essence” of the trusts, or at the very least qualifies as the “starting point,” “foundation” and “principal component” of the trusts. Thus, § 8.03’s express bar of arbitration to amend basic provisions—combined with the fact that the definition of “employer” is a basic provision—provides the “positive assurance” that the parties never agreed to arbitrate disputes about amending the definition of “employer.”

Despite their concession about the term “employer,” the union trustees insist that any expansion of who may contribute to the funds is a trivial matter that does not amount to amending any basic provision. They offer three reasons for this characterization, none of which are persuasive.

Affirmed.

Krueger v. Angelos (Lawyers Weekly No. 001-029-22, 13 pp.) (A.

Arbitration Bank customer avoids arbitration of residential mortgage dispute Where a customer alleged his bank violated the Truth in Lending Act, or TILA, by using money in his deposit accounts to pay the outstanding balance on a Home Equity Line of Credit or HELOC, the bank could not compel arbitration because the arbitration agreements were executed after passage of the Dodd-Frank Act, which imposed restrictions on the use of mandatory arbitration agreements for mortgage-related transactions.

Background

William Lyons Jr. filed suit against PNC Bank NA, alleging violations of TILA related to PNC’s set-off of funds from two of Mr. Lyons’s deposit accounts to pay the outstanding balance on a HELOC. PNC moved to compel arbitration based on an arbitration provision in the parties’ agreement applicable to the two deposit accounts.

The district court found that amendments made by the DoddFrank Act to TILA barred arbitration of Mr. Lyons’s claims related to the 2014 account because it was opened after the effective date of the provisions but that those restrictions did not apply retroactively to bar arbitration of his claims related to the 2010 account.

PNC appeals the district court’s partial denial of its motion to compel arbitration, and Mr. Lyons cross-appeals the district court’s partial grant of the motion to compel arbitration.

The Dodd-Frank Act amended TILA, including by adding a section entitled “Arbitration,” which imposed restrictions on the use of mandatory arbitration agreements for mortgagerelated transactions. The plain language of § 1639c(e)(3) is clear and unambiguous: a consumer cannot be prevented from bringing a TILA action in federal district court by a provision in an agreement “[related] to” a residential mortgage loan—like a HELOC. PNC insists, however, that § 1639c(e)(3) cannot prohibit arbitration of Mr. Lyons’s claims because the provision was not intended to restrict agreements to arbitrate. Rather, argues PNC, the provision limits a consumer from agreeing to waive certain claims but does not control the proper judicial forum for resolution of such claims.

PNC notes that § 1639c(e)(3) does not include the term “arbitration” and cites to a series of Supreme Court cases which have held that arbitration is not precluded merely because a statute provides a plaintiff with a cause of action. But these cases are inapposite. In contrast to the provisions at issue in the cases cited by PNC, which authorize a cause of action, § 1639c(e)(3) expressly prohibits a covered agreement from barring a consumer “from bringing an action in an appropriate district court of the United States, or any other court of competent jurisdiction.”

Further, PNC’s position is difficult to reconcile with the structure of DoddFrank. While the text of § 1639c(e)(3) does not include the term “arbitration,” the provision is found in a short sec-

tion entitled “Arbitration.” Moreover, the court’s interpretation is consistent with the legislative history of the provision. And it is also consistent with the Consumer Financial Protection Bureau’s implementing regulations.

PNC nevertheless contends that, when Mr. Lyons opened the 2014 account, he was not entering a new contractual relationship with PNC but merely continuing an existing relationship with the bank and, therefore, that the later account is properly covered by the arbitration provision in the earlier account agreement. But the record makes clear that the arbitration provision applicable to the 2010 account via the 2013 account agreement was not entered into by Mr. Lyons until June 11, 2013—ten days after the effective date of § 1639c(e)(3). Thus, the arbitration clause is precluded by § 1639c(e) (3) from applying to Mr. Lyons’s claims related to either the 2010 account or the 2014 account.

PNC argues, however, that the court lacks jurisdiction to review the district court’s order compelling arbitration of the 2010 account agreement. But the district court’s partial grant of PNC’s order to compel arbitration of the 2010 account is “inextricably intertwined” with the district court’s partial denial of the order to compel arbitration of the 2014 account because the court’s consideration of the latter order necessarily resolves the former. PNC may not compel arbitration of Mr. Lyons’s claims as to both the 2010 account and the 2014 account.

Affirmed in part, reversed in part.

Concurrence/Dissent

(Quattlebaum, J.): I agree with the majority’s analysis that § 1639c(e)(3) applies to the kind of set-off claim Mr. Lyons raises here. I also concur that § 1639c(e)(3) bars arbitration over the 2014 account because both the account and its own terms and conditions postdate Dodd-Frank. I write separately from my colleagues, however, because I do not believe we have jurisdiction to adjudicate Mr. Lyons’s cross-appeal.

Lyons v. PNC Bank NA (Lawyers Weekly No. 001-030-22, 23 pp.) (Roger Gregory, C.J.) (A. Marvin Quattlebaum Jr., J., concurring and dissenting) Case Nos. 21-1058 and 21-1289. Feb. 15, 2022. From D. Md. at Baltimore (Stephanie A. Gallagher, J.) Daniel J. Tobin for PNC Bank NA. Ellen Louise Noble for William Lyons Jr. Kevin E. Friedl for Amicus Curiae Consumer Financial Protection Bureau. 4th Cir.

Civil Practice Plaintiff lacks standing to challenge Israel-boycott order Where a man sued the Maryland governor and attorney general over an executive order that he interpreted as prohibiting him from bidding on state procurement contracts due to his personal boycotts of Israel-tied products, but the executive order only prohibited a business from engaging in antiIsrael national origin discrimination in the process of preparing a bid for a state procurement contract, his suit was dismissed.

Background

Saqib Ali seeks to pursue § 1983 proceedings against Maryland’s governor and attorney general, challenging as unconstitutional an executive order that prohibits boycotts of Israel by business entities that bid on the state’s procurement contracts. The district court dismissed with prejudice Ali’s lawsuit

16 / OPINION DIGESTS for want of Article III standing to sue.

Analysis

Ali’s primary argument that he has sustained a direct injury is predicated on his own interpretation and understanding of the executive order, a construction that prohibits him from bidding due to his personal boycotts of Israel-tied products. The court cannot agree, however, with Ali’s interpretation of the executive order.

As the district court recognized, “Section C, which contains the language Mr. Ali would have to sign to submit a bid, does require that bidders affirm that they would not take ‘other actions intended to limit commercial relations’ with ‘a person or entity on the basis of Israeli national origin.’”

But as the court further observed, that language “is limited by [two] ‘prefatory clauses’ —‘in preparing its bid on this project’ and ‘in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier.’”

Accordingly, the court determined that the key passage of Section C should be read as follows: “In preparing its bid on this project, the bidder ... has not, in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier ... taken other actions intended to limit commercial relations, with a person or entity on the basis of Israeli national origin.”

The court then explained that, read in that manner, the certification required by “Section C is effectively limited to an affirmation that the bidder has not discriminated in the bid formation process.” The court agrees with the district court’s well-reasoned distillation of the plain text of the executive order.

If a business entity has engaged in anti-Israel national origin discrimination in the process of preparing a bid for a state procurement contract, the executive order would bar that entity from being awarded the contract. If, by contrast, the entity has engaged in a boycott of Israel entirely unrelated to the bid formation process, the executive order is of no moment.

The amended complaint alleges that Ali boycotts Israel in his personal capacity only, by “[refusing] to purchase Sabra hummus or SodaStream products, which have ties to Israel and its occupation of Palestine.” Those limited factual allegations are problematic for Ali, in that the amended complaint “does not allege that he boycotts Israel in his business capacity,” much less in the context of preparing a bid for a state procurement contract. As such,

C o nt inu e d f r o m 6 ►

ment to protect suspects’ rights.

The time and effort to get a warrant is typically not enough to show exigent circumstances.

“Based on the record before us, we hold that the officers reasonably concluded that use of the ‘exigent form’ was necessary to obtain

C o nt inu e d f r o m 3 ►

change.

“Courts exist to resolve sincere differences of legal opinion, which is what we have in this case,” Charleston spokesman Jack O’Toole said in a statement.

Several cities, counties and universities across the state have wanted to remove memorials or the names of segregationists from buildings, but none of them have been as aggressive as Charleston.

the court rejects Ali’s related theory that he possesses standing to sue premised on a direct injury.

Ali relies on recent district court decisions that involve similar procurement provisions of other states; in them, the courts ruled that plaintiffs sustained direct injuries that conferred Article III standing to sue. In two of these cases, however, “as a result of their refusal to sign, the plaintiffs ... either lost a contract that otherwise would have been theirs, or were refused payment on a contract under which they had already rendered performance.” By contrast, Ali has not submitted a bid for any state procurement contract, much less been offered or accepted one.

As an additional source of direct injury, Ali argues on appeal that section C constitutes an unconstitutionally vague loyalty oath. The court is satisfied, however, that Ali’s characterization of the executive order as an unconstitutional loyalty oath does not create a direct injury that confers Article III standing to sue. The executive order requires a business entity to refrain from discriminating on the basis of Israeli national origin only in forming a bid. It does not require the entity to, for example, pledge any loyalty to Israel or profess any other beliefs.

Finally, although the court is satisfied that Ali has not alleged facts adequate to establish Article III standing to sue, the dismissal of his amended complaint should be without prejudice.

Affirmed as modified.

Ali v. Hogan (Lawyers Weekly No. 001-031-22, 23 pp.) (Robert Bruce King, J.) Case No. 20-2266. Feb. 18, 2022. From D. Md. at Baltimore (Catherine C. Blake, S.J.) Gadeir Ibrahim Abbas for Appellant. Adam Dean Snyder for Appellees. 4th Cir.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Fe br u ar y 28, 2022

tive and citizen of Honduras, applied for asylum, withholding of removal and protection under the Convention Against Torture. Because MejiaVelasquez failed to produce biometrics (such as her photograph, fingerprints and signature) in support of her application, after having been warned of the consequences of failing to do so, the immigration judge or IJ, deemed her application abandoned and ordered her removed to Honduras. The BIA affirmed in a decision dismissing her appeal.

Mejia-Velasquez argues mainly that she did not receive sufficient notice that she was required to provide biometrics, and that the BIA’s decision upholding the notice given in this case relied on its erroneous decision in Matter of D-M-C-P-, 26 I. & N. Dec. 644 (BIA 2015), which misinterpreted the regulation by eclipsing a portion of its requirements.

Analysis

her by the IJ at her Feb. 7, 2017 master calendar hearing. That document, entitled “Fingerprint Warning,” contained all the information that could reasonably be contemplated by the regulation’s requirement of “a biometrics notice.” The court concludes that the content of this document was sufficient to constitute “a biometrics notice.”

Mejia-Velasquez contends further, however, that the biometrics notice required by § 1003.47(d) must come in the form of an “appointment notice” from the USCIS Application Support Center that schedules applicants’ appointments for providing biometrics.

While this argument might support her criticism of the DHS’s current practice, it does not substantially advance her position that § 1003.47(d) was not satisfied at her February 2017 hearing.

Finally with respect to her first petition for review, Mejia-Velasquez contends that even if she were provided with a biometrics notice satisfying § 1003.47(d), the IJ nonetheless erred in deeming her I-589 application for relief abandoned and the BIA likewise erred in affirming that conclusion and dismissing her appeal. She makes essentially three arguments, none of which the court finds persuasive.

In her second petition for review, Mejia-Velasquez challenges the BIA’s May 27, 2020, order denying her motion to reconsider its Jan. 22, 2020, decision dismissing her application.

The court finds no abuse of discretion here. The BIA permissibly found that Mejia-Velasquez failed to identify any legal error, factual error or overlooked arguments in its Jan. 22, 2020 decision.

Petitions for review denied.

Katherin Mejia-Velasquez, a na-

In 8 C.F.R. § 1003.47(d), the DHS must (1) “notify” the applicant of the need to provide biometrics, (2) “provide” the applicant with “a biometrics notice” and (3) “provide” the applicant with “instructions” for providing biometrics. The BIA’s interpretation in Matter of D-M-C-P-, however, requires the DHS to satisfy only the first and the third requirements, omitting the requirement that it provide “a biometrics notice.” In this case, the BIA concluded that, because the DHS had provided Mejia- Velasquez with all of the information required by Matter of D-M-C-P-, the DHS had satisfied the requirements of § 1003.47(d).

The regulation is unambiguous as to the three requirements specified— oral notification, a biometrics notice and instructions. But Matter of D-MC-P-, when construing the regulation, omitted the requirement for providing applicants with “a biometrics notice.”

Accordingly, the BIA’s interpretation of § 1003.47(d) in Matter of D-M-C-Pis not entitled to deference for at least two reasons. First, the regulation is not “genuinely ambiguous” with respect to these requirements. Second, even if the regulation was ambiguous, the BIA’s interpretation is not a reasonable one because it fails to account for a distinct requirement in the regulation.

The government contended at oral argument that, regardless of whether Matter of D-M-C-P- properly interprets § 1003.47, Mejia-Velasquez actually received a biometrics notice in this case because one was provided to

a prompt response from the cell phone provider when an armed and dangerous suspect was at large,” Keenan said.

Baltimore attorney Joshua E. Hoffman represented Hobbs. He said the issue regarding T-Mobile being “notoriously slow” in responding to warrants was “unexpected,” and he was surprised it

was effective. He added that he felt the Fourth Circuit misapplied the Caraballo holding because that defendant exhibited a far greater and more imminent threat compared with Hobbs.

On Feb. 15, Hoffman filed a request that the Fourth Circuit conduct a rehearing of the appeal en banc.

Brandon Keith Moore of the Office of the United States Attorney in Baltimore did not respond to a request for comment.

The 13-page opinion is United States v. Hobbs (Lawyers Weekly No. 001-023-22, 13 pp.) The full text of the opinion is available online at sclawyersweekly.com.

The city removed a statue of former U.S. Vice President and slavery supporter John C. Calhoun from a pedestal that towered over downtown in the summer of 2020. Wilson’s office said it was allowable because the statue was not on public property and didn’t honor an event covered by the Heritage Act. The Heritage Act became law in 2000 as part of a bill that also removed the Confederate flag from the state House and Senate chambers and from flying above the State-

house dome. It specifically protects monuments from 10 wars — from the Revolutionary War to the Persian Gulf War. It also protects monuments honoring African Americans and Native Americans as well as a catchall phrase of “any historic figure or historic event.”

The Robert E. Lee monument at the Charleston school was placed there in 1947 and is one of several similar markers placed on roads around the state by the United Daughters of the Confederacy.

The group placed its marker in Columbia as a program that “glorified the Confederacy, explained secession as a political act rather than a defense of slavery, and vilified the federal government’s empowerment of African Americans during Reconstruction,” according to the Historic Columbia preservation organization.

The American Heritage Association, which is suing over the removal of the Calhoun statue, also is threatening a lawsuit against the city over the removal of the Lee marker.

Immigration BIA erred when it interpreted ‘unambiguous’ rule Where a regulation requires the Department of Homeland Security or DHS, to notify an applicant of the need to provide biometrics, such as photographs and fingerprints; provide the applicant with a biometrics notice and provide instructions for producing biometrics, the Board of Immigration Appeals, or BIA, erred when it interpreted the regulation in a way that omitted the second requirement.

Background

Dissent

(Motz, J.): Mejia-Velasquez does not deny that she failed to have her fingerprints taken. She argues, however, that DHS failed to fulfill its own obligation to first provide her with a biometrics notice setting a date and time to have her fingerprints taken.

I agree that DHS failed to fulfill that obligation and would thus grant the petition for review.

Mejia-Velasquez v. Garland (Lawyers Weekly No. 001-032-22, 37 pp.) (Paul V. Niemeyer, J.) (Diana Gribbon Motz, J., dissenting) Case Nos. 20-1192 and 20-1628. Feb. 15, 2022. From the Board of Immigration Appeals. Evelyn Rose Griggs Smallwood for Petitioner. Rachel Louise Browning for Respondent. 4th Cir.