Circuit Watcher

Livingston v. Wyeth, Inc., 4th Cir. Mar. 24, 2008

admin — Tue, 25 Mar 2008 05:27:50 +0000

06-1939 Livingston v. Wyeth, Inc.
Before NIEMEYER and MICHAEL, Circuit Judges, and Claude M. HILTON, Senior United States District Judge¹
NIEMEYER, Circuit Judge: Relying on the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A, Mark Livingston commenced this action against his employer Wyeth, Inc., a pharmaceutical company, alleging that Wyeth unlawfully discharged him because of his complaints to Wyeth’s management about Wyeth’s inability to implement on schedule a training program at its Sanford, North Carolina facility, supposing therefore that local employees would likely misrepresent or cover up the deficiencies in progress to internal compliance auditors and to the Food and Drug Administration. The training program was designed to train employees in good manufacturing practices, and its implementation was required by regulations of the Food and Drug Administration. Livingston asserted that in making his complaints, he reasonably believed that Wyeth’s potential conduct in misrepresenting or covering up the deficiencies in timely implementation of the program would constitute violations of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated under it, and therefore that his conduct was protected under the Sarbanes-Oxley Act.
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The district court entered summary judgment against Livingston, concluding that his complaints were not protected activity under the Sarbanes-Oxley Act because Livingston could not reasonably have believed that Wyeth was violating the securities laws. The court also concluded that Wyeth had shown, by clear and convincing evidence, that it had discharged Livingston for insubordination in threatening to have the police remove Wyeth’s Director of Human Resources from a company-sponsored holiday party and that Wyeth would have discharged Livingston regardless of whether he had complained about the progress of the training program.
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Because we conclude that no objectively reasonable basis existed for Livingston to have believed that Wyeth was violating the securities laws, we affirm. …
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MICHAEL, Circuit Judge, dissenting: I respectfully dissent from the majority’s holding that Mark Livingston can show no set of facts to entitle him to protection under the whistleblower provision of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. … Livingston v. Wyeth, Inc.

for the Eastern District of Virginia, sitting by designation. [↩]

Penn-Am. Ins. Co. v. Mapp, 4th Cir. Mar. 20, 2008

admin — Fri, 21 Mar 2008 06:07:07 +0000

06-2279 Penn-Am. Ins. Co. v. Mapp
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.
KING, Circuit Judge: Penn-America Insurance Company seeks to appeal from the district court’s Opinion and Order granting partial summary judgment to ACH Corporation of Chesapeake, Incorporated, and April Dawn Mapp. See Penn-Am. Ins. Co. v. Mapp, 461 F. Supp. 2d 442 (E.D. Va. 2006) (the “Opinion”). Penn-America initiated the underlying declaratory judgment proceeding in the Eastern District of Virginia, seeking declarations, inter alia, that it had no duty to defend or indemnify its insured, ACH, against tort claims being pursued by Mapp in Virginia state court. By its Opinion, the district court resolved the duty to defend issue in favor of ACH, but withheld ruling on the indemnification issue. The court then dismissed the proceeding from its “active docket,” subject to reinstatement upon “motion by any party.” Id. at 459. As explained below, the Opinion does not constitute an appealable decision and this appeal must be dismissed. … Penn-Am. Ins. Co. v. Mapp.

U.S. v. Brewer, 4th Cir. Mar. 20, 2008

admin — Fri, 21 Mar 2008 01:54:21 +0000

06-4836 U.S. v. Brewer
Before NIEMEYER and KING, Circuit Judges, and James A. BEATY, Jr., Chief United States District Judge¹
KING, Circuit Judge: Arthur Leon Brewer appeals from his sentence of seventy months in prison, imposed in the Eastern District of Virginia on his 2006 conviction for distributing more than five grams of cocaine base (”crack”), in violation of 21 U.S.C. § 841(a)(1). On appeal, Brewer, who is mentally handicapped, contends that the district court erred by, inter alia, denying him a downward departure based on diminished capacity and imposing a sentence that is unreasonable.² As explained below, we reject each of these contentions and affirm. … U.S. v. Brewer.

for the Middle District of North Carolina, sitting by designation. [↩]
In connection with his unreasonableness contention, Brewer argues that Amendment 706, the Sentencing Commission’s recent revision to the Guidelines concerning crack offenses, applies to his sentence and mandates a remand for resentencing. As explained further in Part II.B.2, because the Sentencing Commission made Amendment 706 retroactive, the sentencing court possesses ample authority to consider this argument, and we neither resolve the issue nor remand. [↩]

Yarbrough v. Johnson, 4th Cir. Mar. 17, 2008

admin — Mon, 17 Mar 2008 22:03:19 +0000

07-10 Yarbrough v. Johnson
Published opinion after argument: Affirmed
Eastern District of Virginia 2:05-cv-00368-JBF Jerome B. Friedman
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
NIEMEYER, Circuit Judge: A jury in Mecklenburg County, Virginia, convicted Robert Yarbrough of the 1997 capital murder and robbery of Cyril Hamby, and sentenced him to death. The Supreme Court of Virginia vacated his sentence because of an erroneous jury instruction. On remand, a second jury sentenced Yarbrough to death again, and the Supreme Court of Virginia affirmed.
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After exhausting state procedures for post-conviction relief, Yarbrough filed the present petition for a writ of habeas corpus under 28 U.S.C. § 2254, asserting six grounds for relief. The district court denied Yarbrough’s petition, but granted him a certificate of appealability with respect to his claim that his trial counsel was constitutionally ineffective because he failed to request that the trial court appoint a DNA expert at public expense. We expanded the certificate of appealability to include Yarbrough’s claim that the trial counsel was constitutionally ineffective for inadequately investigating and presenting evidence in mitigation at sentencing.
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For the reasons that follow, we affirm the district court’s dismissal of Yarbrough’s two claims for which a certificate of appealability has been issued, concluding that in denying these claims on the merits, the Supreme Court of Virginia neither unreasonably applied clearly established federal law nor made an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). … Yarbrough v. Johnson.

Cagle v. Branker, 4th Cir. Mar. 17, 2008

admin — Mon, 17 Mar 2008 21:59:40 +0000

07-6 Cagle v. Branker
Eastern District of North Carolina 5:02-hc-00666-H Malcolm J. Howard
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
WILKINSON, Circuit Judge: Richard Cagle, a North Carolina prisoner convicted of murder and sentenced to death, appeals the district court’s dismissal of his petition for a writ of habeas corpus. He claims that the absence of a key witness, ineffective assistance of counsel as to a motion to sever, ineffective assistance of counsel as to mitigation, and the lack of a jury instruction as to voluntary intoxication deprived him of a fair trial and sentence. Having reviewed his claims with care, we find them to be without merit and affirm the district court. … Cagle v. Branker.

NLRB v. HQM of Bayside, LLC, 4th Cir. Mar. 10, 2008

admin — Tue, 11 Mar 2008 01:14:44 +0000

06-2253 Application for Enforcement NLRB v. HQM of Bayside, LLC
Published opinion after argument: Application for enforcement granted
National Labor Relations Board 5-CA-30964
Before WILLIAMS, Chief Judge, MOTZ, Circuit Judge, and HAMILTON, Senior Circuit Judge.
WILLIAMS, Chief Judge: After finding that HQM of Bayside (”Bayside”) unlawfully withdrew recognition from a union, the National Labor Relations Board (the “Board”) petitioned this court to enforce its order against Bayside. The Board maintains that because the union had not lost majority support, Bayside’s unilateral withdrawal of recognition from (and subsequent refusal to bargain with) the union violated Sections 8(a)(1) and (5) of the National Labor Relations Act (the “Act”), 29 U.S.C.A. § 158(a)(1) & (5) (West 1998 & Supp. 2007). Because we conclude that substantial evidence supports the Board’s findings, we grant the Board’s application for enforcement.

In addition, Bayside argues that the Board abused its discretion in imposing an affirmative bargaining order. We lack jurisdiction to consider this challenge, however, because Bayside failed to raise it before the Board. … NLRB v. HQM of Bayside, LLC

Ellenburg v. Spartan Motors, 4th Cir. Mar. 10, 2008

admin — Tue, 11 Mar 2008 01:12:01 +0000

06-1864 Civil Private Ellenburg v. Spartan Motors
Published opinion after argument: Reversed and remanded
District of South Carolina 8:06-cv-01606-HFF Henry F. Floyd
Before NIEMEYER and GREGORY, Circuit Judges, and James P. JONES,¹ Chief District Judge.
NIEMEYER, Circuit Judge: The defendants in this products liability action, which was commenced in South Carolina state court, filed a Notice of Removal in the district court, pursuant to 28 U.S.C. §§ 1441 and 1446, alleging diversity jurisdiction under 28 U.S.C. § 1332. Six days later, the district court sua sponte entered an order remanding the case to state court, concluding that the Notice of Removal’s allegation that the value of the matter in controversy exceeded the sum of $75,000 was “inadequate to establish” the jurisdictional amount, because it failed to “allege facts adequate to establish” the amount. The defendants appeal the remand order, and the plaintiff, in reply, urges that we dismiss the appeal pursuant to 28 U.S.C. § 1447(d), which provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”

Because the sua sponte remand order of the district court did not rely on lack of subject matter jurisdiction, but rather on a procedural defect in pleading that was not timely raised by the plaintiff, indeed not raised at all by the plaintiff, we conclude that it does not fall within the scope of orders that are deemed unreviewable under 28 U.S.C. § 1447(d) and that therefore we have authority to review the court’s remand order. … Ellenburg v. Spartan Motors.

Chief United States District Judge for the Western District of Virginia, sitting by designation. [↩]

4th Cir. Mar. 7, 2008

admin — Sat, 08 Mar 2008 02:02:15 +0000

07-8 Prisoner death penalty Golphin v. Branker
Published opinion after argument: Affirmed
Eastern District of North Carolina 5:04-hc-00201-FL Louise W. Flanagan

4th Cir. Mar. 6, 2008

admin — Fri, 07 Mar 2008 04:55:16 +0000

06-5128 Criminal US v. Yearwood
Published opinion after argument: Affirmed
District of Maryland 1:05-cr-00105-RDB Richard D. Bennett

06-5169 Criminal US v. Mitchell
Published opinion after argument: Reversed
District of South Carolina 6:05-cr-01167-HFF Henry F. Floyd

4th Cir. Mar. 5, 2008

admin — Wed, 05 Mar 2008 22:38:13 +0000

07-1046 Civil Private Laurel Sand & Gravel v. Wilson
Published opinion after argument: Affirmed
District of Maryland 1:06-cv-00615-JFM J. Frederick Motz

4th Cir. Mar. 4, 2008

admin — Tue, 04 Mar 2008 21:42:31 +0000

06-2158 Civil Private Mora v. City of Gaithersburg
Published opinion after argument: Affirmed as modified
District of Maryland 8:05-cv-01993-PJM Peter J. Messitte

4th Cir. Mar. 3, 2008

admin — Mon, 03 Mar 2008 20:16:15 +0000

062119 Civil U.S. Neese v. Johanns
Published opinion after argument: Affirmed
Western District of Virginia 1:05-cv-00071-sgw Samuel G. Wilson