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Posts Tagged ‘Traxler’

A split panel of the Fourth Circuit held today that BP could enforce a restrictive covenant in a deed against a purchaser who sought to use the purchased property for a gas station selling different gas than agreed to in the sale of the property. Chief Judge Traxler wrote the opinion in BP Products, North America, Inc. v. Stanley, which was joined in by Judge Shedd. Judge Floyd authored a dissenting opinion.

From the majority opinion:

The parties agree that under Virginia law, covenants “restricting the free use of land are not favored and must be strictly construed.” Mid-State Equip. Co. v. Bell, 225 S.E.2d 877, 884 (Va. 1976). They disagree, however, regarding the test by which such covenants should be judged. Defendants argue that the restriction should be judged by the standard discussed in Omniplex World Services Corp. v. U.S. Investigations Services, Inc., 618 S.E.2d 340, 342 (Va. 2005), which applies to noncompete covenants in employment contracts. BP contends that restrictive covenants in deeds are judged by a different standard, namely the one discussed in Merriman v. Cover, Drayton & Leonard, 51 S.E. 817, 819 (Va. 1905), and that the Omniplex and Merriman tests are distinct from one another. We agree with BP.

* * *

BP advances multiple arguments challenging the ruling by the district court that the PR was overbroad as a result of its
application to the sale of these enumerated items. BP first argues that, as a petroleum refiner, it has a legitimate business
interest in prohibiting the sale of any products that would dilute the demand for BP’s petroleum. BP also maintains that
the PR should be read to prohibit the sale of kerosene, benzol, or naphtha only to the extent those products are used for the
sale of fuel for internal combustion engines. Finally, BP argues that it is not seeking to prevent the sale of lubricants and that any prohibition of such sales “is academic and represents far too slender a reed on which to invalidate the entire Petroleum Restriction, and thereby allow Stanley to use the Property to sell non-BP fuel, the very use the parties indisputably intended that the Property could not be put.” Appellant’s brief at 48.

From the dissent:

BP contends that we can enforce the PR regardless of any overbreadth simply by excising the offending language. And, since oral argument, BP purportedly has released Stanley from the overbroad portions of the PR. See Ante at 13 n.3. Nevertheless, I cannot conclude that the PR becomes enforceable through alteration by the court or BP. First, Virginia law disfavors judicial reformation of covenants through bluepenciling. See Strategic Enter. Solutions, Inc. v. Ikuma, No. CL 2008-8153, 2008 WL 8201356, at *4 (Va. Cir. Ct. Oct. 7, 2008) (“The Virginia Supreme Court has not directly ruled on ‘blue-penciling’ overly broad clauses in restrictive covenants[;] however it is clear from the restrictive covenant jurisprudence in Virginia that the Court does not entertain the notion that these disfavored restraints on trade should be reformed by the judiciary . . . .”); Daston Corp. v. MiCore Solutions, Inc., No. CL-2010-9318, 2010 WL 7375597, at *5 (Va. Cir. Ct. July 30, 2010); Better Living Components, Inc. v. Coleman, No. CH04-13,307, 2005 WL 771592, at *5 (Va. Cir. Ct. Apr. 6, 2005). More fundamentally, however, Virginia law supports narrowly drawn covenants that are reasonable, and general public policy encourages parties to draft precise language on which all participants to a contract can  rely. Allowing BP, a multinational, sophisticated corporation, to draft blatantly overbroad restrictions and then, when challenged, simply declare that such restrictions are a mistake and meaningless not only is contrary to basic contract principles, but also is detrimental to the public interest. Accordingly, I find that the PR’s overbreadth spoils its enforceability and dissent from the majority’s contrary conclusion.

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The Fourth Circuit issued two published opinions in argued cases today.

In McDaniel v. Blust, the court affirmed dismissal of several claims that arose out a bankruptcy proceeding. Chief Judge Traxler wrote the opinion for the court, which was joined in by Judge Gregory and Judge Wynn. The opinion addresses the contours of the Barton doctrine, which provides that “before another court may obtain subject-matter jurisdiction over a suit filed against a receiver for acts committed in his official capacity, the plaintiff must obtain leave of the court that appointed the receiver.”

In United States v. Sarwari, the court affirmed the convictions and sentence of a man who submitted passport applications for his stepchildren, describing himself  as their “father” even though he was neither their birth father nor adoptive father. Judge Motz wrote the opinion for the court, which was joined in by Chief Judge Traxler and Judge Keenan. The opinion focuses primarily on the Bronston defense. In Bronston v. United States, 409 U.S. 352 (1973), “the Supreme Court held that an individual cannot be convicted of perjury when the allegedly false statement was ‘literally true but not responsive to the question asked and arguably misleading by negative implication.” In Sarwari, the panel first assumed without deciding that the Bronston defense was available against the particular false statement charges advanced by the government. The panel then proceeded to hold that the facts of the case did not fit within the defense. The panel reasoned that the term “father” is not “fundamentally ambiguous,” and that the evidence was sufficient for the jury to conclude that the defendant understood the term in the same way that it was understood by the government.

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The Fourth Circuit today unanimously reversed the grant of habeas relief to a North Carolina capital defendant, Timothy Richardson, by Judge Boyle of the Eastern District of North Carolina. Judge Keenan wrote the opinion for the court in Richardson v. Branker, in which Chief Judge Traxler and Judge Motz joined.

The decision, which relies heavily on the Supreme Court’s decision last Term in Harrington v. Richter, ___ U.S. ,___ 131 S. Ct. 770, 786-87 (2011), rests on the appellate court’s determination that the district court did not demonstrate adequate deference to the state court decision at issue. The opinion states that the “required deference to the MAR court’s adjudication of Richardson’s claim of ineffective assistance of appellate counsel was wholly lacking in the district court’s consideration of the habeas petition.”

Along with analysis of North Carolina law governing when it is necessary to submit to the jury the mitigating factor of the defendant’s age–the (f)(7) mitigation factor–the opinion also discusses Brady and Atkins claims.

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A divided panel of the Fourth Circuit held today in Prudencio v. Holder that the framework used by federal immigration judges to decide whether an individual has previously been convicted of a crime of moral turpitude is unauthorized because in conflict with the relevant provisions of the Immigration and Nationality Act. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd penned a vigorous dissent.

The decision defies easy summary, but the dispute is an important one. Here is how Judge Shedd’s dissent begins:

The categorical approach adopted by the majority is a doctrine created by the judicial branch to address issues of concern to the judicial branch—protection of Sixth Amendment rights and efficient use of judicial resources. Although an agency may choose to adopt some version of this approach, there is no  requirement to expand this difficult, almost unworkable, limiting analysis to an agency, especially in the immigration context, and I would not do so.

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The Fourth Circuit today unanimously affirmed a grant of summary judgment in favor of the United States on the claim of activist photojournalist Isis for money damages under the Privacy Protection Act. Chief Judge Traxler wrote the published opinion in Sennett v. United States, which was joined in by Judge Motz and Judge Keenan.

The claim arises out of a lawless protest by anti-IMF activists at the Four Seasons hotel in Washington D.C. in 2008. Isis asserts that she went to the hotel around 2:30 a.m. one morning after receiving an anonymous tip about an impending demonstration. She proceeded to video a protest in the hotel lobby that involved firecrackers, smoke-generating pyrotechnic devices, and paint-filled balloons, causing more than $200,000 in property damage. The police tracked her down, searched her residence, and hauled away a lot of her gear. She never was charged with a crime. She sued under the Privacy Protection Act and lost on summary judgment. The Fourth Circuit affirmed. The decision involves an extended analysis of the “suspect exception” in the PPA.

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The Fourth Circuit’s unanimous opinion today in United States v. Strieper affirms the imposition of two sentencing enhancements on attempted enticement and child pornography charges. Judge Floyd wrote the opinion, in which Chief Judge Traxler and Judge Shedd joined.

Among the issues discussed is whether one can attempt to entice without having identified a particular minor to entice. The panel believed so:

At oral argument, Strieper also suggested that there must be an identifiable victim to constitute an attempt. This argument did not appear in Strieper’s brief, and as such, it is waived. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). In addition, this position lacks merit, as it is well established that attempt requires only the requisite intent to commit the crime and a substantial step toward its commission. United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). So long as these elements are satisfied, no identified victim is necessary. Indeed, as we noted at oral argument, if two individuals intending to rob a bank start out with all accoutrements necessary for a robbery and agree simply to rob the first bank they happen upon rather than identifying a specific bank ahead of time, we could still conclude that the individuals had attempted to commit robbery.

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The Fourth Circuit yesterday issued two published opinions dealing with the civil commitment of sexually dangerous persons, United States v. Timms and United States v. Hall. The two cases were decided by unanimous vote of a panel made up of Chief Judge Traxler, Judge Agee, and Judge Motz. They are follow-up cases to the Supreme Court’s decision in United States v. Comstock, which upheld Congress’s power to enact § 4248 under the Necessary and Proper Clause.

The opinion in Timms, by Judge Agee, contains an overview of the evolution and current state of judicial treatment of the “civil commitment system established by § 4248 as part of the Adam Walsh Child Protection and Safety Act of 2006.” The decision reverses a district court’s dismissal of a commitment action against Gerald Timms. The Fourth Circuit concludes that § 4248 does not violate the Equal Protection Clause and that Timms’s right to due process was not violated by extended delays in the consideration of his commitment (large chunks of which were due to the lengthy constitutional challenge to § 4248 resolved by the Supreme Court in Comstock).

In United States v. Hall, authored by Chief Judge Traxler, the Court of Appeals affirmed the district court’s determination that the government had failed to prove by clear and convincing evidence that Hall is sexually dangerous.

These two decisions are important because the vast majority of those that the federal government has certified as sexually dangerous persons are in FCI-Butner, the federal correctional facility in Butner, North Carolina. According to the opinion, the government has certified 130 persons as “sexually dangerous,” and 116 of those certifications were filed in the Eastern District of North Carolina. (Last February, the Raleigh Public Record did a two-part story (here and here) on the men at FCI-Butner being held as “sexually dangerous.”)

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