Week One

Week of January 2, 2017 through January 6, 2017

Brandon Pegg v. Grant Herrnberger (Agee 1/4/2017): In this excessive force case, the Fourth Circuit reversed and remanded the decision of the District Court for the Northern District of West Virginia (Bailey) denying officer Herrnberger’s motion for summary judgment against Pegg’s claims of excessive force during arrest. Full Opinion

Laurie Wood v. United States (Niemeyer 1/4/2017): The Fourth Circuit affirmed the ruling of the United States District Court for the Eastern District of Virginia (Jackson) that granted sovereign immunity, under the discretionary function exception of the FTCA, for the Navy officers. Full Opinion

Ohio Valley Environmental Coalition v. Fola Coal Company, LLC (Motz 1/4/2017): In this civil case, the Fourth Circuit affirmed the holding of the United States District Court for the Southern District of West Virginia (Chambers) that Fola Coal had violated the Clean Water Act. Full summary included below. Full Opinion

Marjorie Lynch v. Gabriel Jackson (Thacker 1/4/2017): The Fourth Circuit affirmed the decision of the United States Bankruptcy Court for the Eastern District of North Carolina (Humrickhouse) that held that the debtors Gabriel and Montel Jackson were entitled to the full national and local standard amount for a category of expenses if they incur an expense in that category. Full Opinion

United States v. Richard Schmidt (Wilkinson 1/4/2017): In this criminal case, the Fourth Circuit reversed and remanded the decision of the United States District Court for the District of Maryland (Motz) that Richard Schmidt was innocent of the offense of illicit sexual conduct in violation of 18 U.S.C. § 2423(c), because he was not traveling in foreign commerce in connection with this conduct. Full Opinion

QinetiQ US Holdings, Inc. v. Commissioner of IRS (Keenan 1/6/2017): The Fourth Circuit affirmed the decision of the United States Tax Court that the IRS complied with all applicable procedural requirements in issuing the Notice of Deficiency to QinetiQ, and that the stock failed to qualify as a deductible expense in the applicable tax year. Full Opinion

 

Highlight Case:

Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, NO. 16-1024

Decided: January 4, 2017

The Fourth Circuit affirmed the district court’s ruling.

The Clean Water Act forbids all discharges of pollutants into waters of the United States, unless the discharger holds a permit. These permit holders are shielded from liability if their discharges comply with their permits. Fola Coal Company obtained a permit to discharge into a tributary of Twentymile Creek that is the subject of this litigation. On May 13, 2013, three environmental groups brought this lawsuit under the Clean Water Act’s citizen suit provision. The groups argue that Fola violated West Virginia Regulation 5.1.f incorporated in its permit by discharging too many ions and sulfates into the water, thus making the water too conductive. Fola argues that it disclosed the amount of ions and sulfates that it discharged into the water when it renewed its permit in 2009. It argues that because the West Virginia Department of Environmental Protection (“WVDEP”) never set a limitation on the amount of conductivity in Fola’s permit, WVDEP made an affirmative choice to impose any such limitation. Therefore, Fola argues that because it complied with all limitations in its permit, it should be shielded from liability under the Act.

The district court found that the regulation had been violated and ordered a special master of engineering to monitor Fola’s implementation of less burdensome methods to improve the discharge. Fola timely appealed to the Fourth Circuit. Fola contends that the district court misinterpreted its permit. The court first held that Regulation 5.1.f unambiguously regulates permit holders. Next, the court held that Regulation 5.1.f imposes obligations on the permit holder, not the permitting agency. Finally, the court held that its Piney Run decision held that a permit holder must comply with all of terms of its permit in order to be shielded from liability. The court then rejected Fola’s argument that it did not violate the regulation. The court praised the district court’s extensive and thorough fact-finding and therefore, affirmed the district court’s finding of an impaired stream caused by increased conductivity as a result of Fola’s mining.

Accordingly, the Fourth Circuit affirmed the ruling of the district court.

Full Opinion

Michael W. Rabb