Week 30 (2017)
Week of July 24, 2017 through July 28, 2017
Northrop Grumman Technical Services, Inc. v. DynCorp International LLC (Keenan 7/28/17): The Fourth Circuit held that a document produced by a counterclaim defendant that is never “received” by that party does not constitute an “other paper” under 28 U.S.C. § 1446(b)(3) from which it is first ascertainable that the case has become removable to federal court and, therefore, such a document does not trigger the 30-day removal period. Similarly, a written acknowledgment that a counterclaim defendant receives in response to the submission of its own document to another entity does not constitute an “other paper” under § 1446(b)(3). The court further held that when a defendant actively engages in defensive litigation in state court far beyond the 30-day removal period, the defendant’s request for removal is both untimely and waived by its litigation conduct. Accordingly, the court affirmed the district court’s order remanding the case to state court and concluded Northrop Grumman’s notice of removal was untimely and waived. Full Opinion
Michael A. Scott v. Cricket Communications, LLC (Duncan 7/28/17): The Fourth Circuit held the fact that a defendant asserts a class-size broader than the proposed class does not make a notice of removal incurably defective. The court opined that while a defendant need not tailor its evidence to exactly match the plaintiff’s proposed class, it must provide enough factual detail for the district court to discharge its constitutional duty and assess whether jurisdiction exists under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Because the district court committed legal error in disregarding Cricket’s evidence as over-inclusive, the court was unable to engage in appellate review to determine whether Cricket met its burden to prove jurisdiction and thus vacated the district court’s judgment and remanded for reconsideration consistent with the principles set forth in the court’s opinion. Full Opinion
United States of America v. David Patrick Diaz (Floyd 7/26/2017): The Fourth Circuit held that the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, is inapplicable to violations of 49 U.S.C. § 46504, interference with flight crew members and attendants. The court reasoned that interference with a flight crew is not categorically a crime of violence as defined by the force clause of 18 U.S.C. § 16(a), and restitution associated with violations of 49 U.S.C. § 46504 is governed by the Victim and Witness Protection Act, 18 U.S.C. § 3663, which provides the district court discretion in deciding whether to impose restitution and, if so, in what amount. The court therefore vacated the district court’s order requiring Diaz, who was being prosecuted for interference with a flight crew, to pay the full amount of restitution calculated in his presentence report and remanded for redetermination of the issue of restitution, concluding the district court erred when it found the MVRA to be applicable to Diaz’s violation of 49 U.S.C. § 46504. Full Opinion
United States of America v. David Patrick Diaz, No. 16-4226
Decided: July 26, 2017
The Fourth Circuit held that the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, is inapplicable to violations of 49 U.S.C. § 46504, interference with flight crew members and attendants, because interference with a flight crew is not categorically a crime of violence as defined by the force clause of 18 U.S.C. § 16(a). Instead, restitution associated with violations of 49 U.S.C. § 46504 is governed by the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, which provides the district court discretion in deciding whether to impose restitution and, if so, in what amount.
On March 16, 2015, the defendant David Patrick Diaz (“Defendant”) boarded a plane operated by United Airlines and departing from Washington Dulles International Airport (“Dulles”) bound for Denver, Colorado. Defendant was intoxicated as he boarded the flight, and approximately forty-five seconds after takeoff, he left his seat and rushed the cockpit. According to witnesses, the defendant yelled to passengers that the plane was going down and that “there was something in the belly of the plane.” Defendant also reportedly shouted about jihad and referenced the presence of a bomb. As passengers tackled Defendant and attempted to restrain him, the pilots decided to return to Dulles, where the flight was canceled and passengers were re-booked onto other flights. Defendant was indicted by a grand jury in the Eastern District of Virginia on one count of interference with flight crew members and attendants, in violation of 49 U.S.C. § 46504, and subsequently pled guilty to the offense.
The U.S. Probation Services determined in Defendant’s presentence report that United Airlines suffered a loss of $22,151.77 as a result of Defendant’s offense and recommended an order of restitution in that amount. Defendant argued that his violation of § 46504 fell within the scope of the VWPA, which provides that restitution is discretionary and should depend on, inter alia, the financial resources of the defendant and other factors a district court deems appropriate. The government argued that Defendant’s violation fell within the scope of the MVRA, which requires mandatory restitution for any offense that is both (1) a crime of violence and (2) one in which the victim has suffered a physical injury or pecuniary loss. Although the MVRA requires both elements to be met, the district court addressed only the latter element and held that restitution was mandatory because United Airlines had suffered a pecuniary loss. Defendant timely appealed the restitution order.
The Fourth Circuit vacated the district court’ order requiring Defendant to pay the full amount of restitution calculated in his presentence report and remanded for redetermination of the issue of restitution, concluding the district court erred when it found the MVRA to be applicable to Defendant’s violation of § 46504. As a threshold matter, the court analyzed whether it was possible for a crime that is presumptively covered by the VWPA to instead fall within the scope of the MVRA, to which the court answered in the affirmative. Thus, the court noted that the MVRA could apply in determining restitution for violations of § 46504, but only if the court also held that flight crew interference satisfied both prongs of the MVRA: that it is a crime of violence and one in which the victim has suffered a physical injury or pecuniary loss. The court refused to so hold, instead concluding that because flight crew interference is not a crime of violence, the first prong of the MVRA had not been met and, therefore, the MVRA was inapplicable.
The Fourth Circuit began its analysis by noting the district court’s error in failing to make a ruling as to the “crime of violence” requisite of the MVRA. This prong of the MVRA is met when the offense of conviction is a “crime of violence” as defined by 18 U.S.C. § 16. As the court conducted its analysis, it first had to determine whether 49 U.S.C. § 46504, which defines “flight crew interference” as encompassing both assault and intimidation, was “divisible,” in order to then decide whether to use a strict categorical approach or a modified categorical approach in evaluating 18 U.S.C. § 16. After surveying the relevant case law and model jury instructions on the issue, the court concluded that the phrase “assaulting or intimidating” in 49 U.S.C. § 46504 did not create different elements and, as such, the statute was indivisible and the modified categorical approach therefore inapplicable.
Having found the offense in § 46504 to be indivisible, the court then addressed the key issue of the case: whether flight crew interference is a “crime of violence” under the “physical force” clause of 18 U.S.C. § 16(a). The court first noted that the United States Supreme Court has interpreted § 16(a) as requiring “violent force.” Focusing on the “assault” portion of 49 U.S.C. § 46504, the court surveyed case law interpretation of the term and concluded that assault need only be a forcible touching and can be committed without the use of “violent force.” Accordingly, because flight crew interference in violation of § 46504 criminalizes forcible touching, the court held it could not categorically be a crime of violence under the force clause of 18 U.S.C. § 16(a). As such, the court concluded that the MVRA is inapplicable and that any restitution order issued by the district court should have instead been considered discretionary under the VWPA.
Because the district court erroneously considered restitution mandatory under the MVRA and thus never considered the defendant’s ability to pay, the Fourth Circuit decided the proper remedy was to vacate the restitution order and remand for reconsideration of the issue of restitution. The court noted that on remand, should the district court determine that restitution is proper, it must order payment of the full amount of the loss because although it has discretion to decide whether to award restitution in the first instance, it has no discretion to order only partial payment of the amount of restitution it determines is owed by the defendant.
Ultimately, the Fourth Circuit reversed and remanded the district court’s order of mandatory restitution.
Raymond J. Prince