Week Twelve

Week of March 20, 2017 through March 24, 2017

Kevin Buker v. Howard County (Wynn 3/20/2017): The Fourth Circuit held that the termination of a fire department employee for violation of the department’s social media policy does not violate the employee’s First Amendment rights when the department’s interest in workplace efficiency and preventing disruption outweighs the public interest commentary contained in the Plaintiff’s First Amendment activity. The court further held that the Plaintiff’s facial challenge to the department’s social media policy under the First Amendment was properly dismissed as moot by the district court because the Defendant adopted a new social media policy and did not intend to re-issue the original versions. The court affirmed the district court’s grant of summary judgment in favor of Defendants on Plaintiff’s First Amendment retaliation claim and affirmed the district court’s dismissal of Plaintiff’s facial challenge to the social media policy. Full Opinion

Ronald Barton v. Constellium Rolled Products (Motz 3/22/2017): The Fourth Circuit held that a company’s collective-bargaining agreement did not provide for vested retiree health benefits, and in doing so, recognized that ordinary contract principles foreclose holding that retiree health benefits have vested unless unambiguous evidence indicates that the parties intended that outcome. The court affirmed the district court’s grant of summary judgment to the employer. Full Opinion

Bluewave Healthcare v. United States of America (Duncan 3/23/2017): The Fourth Circuit held that a district court’s order denying motions to quash writs of attachment against real and personal property and writs of garnishment against two bank accounts is an unreviewable interlocutory order. Here, the court reasoned that the district court’s order did not resolve an important issue distinct from the merits, and furthermore did not fall within the class of interlocutory orders Congress intended to exclude from the final-judgment rule. The court dismissed appellants’ challenge to the district court’s order for lack of jurisdiction. Full Opinion

Ryricka Custis v. Keith Davis (Gregory 3/23/2017): The Fourth Circuit held that the district court improperly sua sponte examined and dismissed an inmate’s lawsuit concerning prison conditions when it was not clear from the complaint that the Plaintiff failed to exhaust his administrative remedies. The court further held that an exception allowing sua sponte dismissal for failure to exhaust administrative remedies has not survived Jones v. Bock, 549 U.S. 199 (2007). The court vacated and remanded the case for further proceedings to determine if the Plaintiff exhausted all of his available administrative remedies. Full Opinion

Thomas Porter v. Harold Clarke (Wynn 3/24/2017): The Fourth Circuit held that a suit against prison officials for cruel and unusual punishment of inmates was improperly dismissed for mootness because Defendants’ voluntary cessation of a challenged practice does not moot such an action when the Defendants can revert to the challenged policies in the future. The court reversed and remanded the case to the district court. Full Opinion

US v. Keith Vinson (King 3/24/2017): The Fourth Circuit upheld the Defendant’s criminal convictions for various fraudulent schemes used to sustain his real estate empire. In doing so, the court found that the evidence against the Defendant was sufficient to support his convictions; that the trial court did not err in giving a willful blindness instruction to the jury; and that the Defendants 216-month sentence was not substantively unreasonable. The court rejected the Defendant’s contentions of error and affirmed his convictions and sentence as given by the district court. Full Opinion

 

Highlight Case

Kevin Buker v. Howard County, No. 15-2066

Decided: March 20, 2017

The Fourth Circuit held that the termination of a fire department employee for violation of the department’s social media policy does not violate the employee’s First Amendment rights when the department’s interest in workplace efficiency and preventing disruption outweighs the public interest commentary contained in the Plaintiff’s First Amendment activity. The court further held that the Plaintiff’s facial challenge to the department’s social media policy under the First Amendment was properly dismissed as moot by the district court because the Defendant adopted a new social media policy and did not intend to re-issue the original versions. The court affirmed the district court’s grant of summary judgment in favor of Defendants on Plaintiff’s First Amendment retaliation claim and affirmed the district court’s dismissal of Plaintiff’s facial challenge to the social media policy.

The Plaintiff was a former Battalion Chief with the Howard County, Maryland Department of Fire and Rescue Services (the “Department”). Starting on January 20, 2013, and in the weeks following, the Plaintiff posted a series of statements on Facebook concerning controversial public issues, his opinion of his superiors, and his view of the Department’s social media policy. On February 25, 2013, the Plaintiff was served with charges of dismissal. Following his dismissal, the Plaintiff brought a 42 U.S.C. § 1983 claim in federal district court seeking reinstatement and damages. He claimed that the Department impermissibly retaliated against him for exercising his First Amendment rights. Plaintiff also facially challenged the Department’s Social Media Guidelines and Code of Conduct. The Defendants filed motions for summary judgment on both claims. The District granted Defendants’ motion for summary judgment on the first claim, concluding that the Plaintiff’s Facebook activity was unprotected speech because the statements were capable of impeding the Department’s ability to efficiently perform its duties. Furthermore, the district court dismissed the Plaintiff’s facial challenge to the department’s social media policy as moot because the Department issued revised guidelines that did not include any of the provisions from the previous version that the Plaintiff challenged.

The Fourth Circuit began its analysis of the Plaintiff’s First Amendment retaliation claim by laying out the three-prong test set forth in McVey v. Stacy, 175 F.3d 271 (4th Cir. 1998). The test states that the plaintiff must show: (1) that he was a “public employee . . . speaking as a citizen upon a matter of public concern [rather than] as an employee about a matter of personal interest;” (2) that his “interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public;” and (3) that his “speech was a substantial factor in the employer’s termination decision.” McVey at 277–78.

The court found that “at least some of the Plaintiff’s Facebook activity referenced in the Department’s charging document touched on issues of public concern,” and, therefore, the Plaintiff met the first prong of the test. The court then concluded that the Department’s interest in preventing disruption outweighed the public interest commentary contained in Plaintiff’s Facebook activity because the Plaintiff’s speech disrespected his superiors and threatened the trust that the community and the Plaintiff’s subordinates had placed in the Plaintiff and the Department. Having concluded that the Plaintiff failed to meet the second prong of the McVey test, the court did not need to reach the third prong of the test and held that the district court properly granted summary judgment in favor of Defendants on Plaintiff’s First Amendment retaliation claim.

The court then analyzed whether the Plaintiff’s facial challenge to the Department’s Social Media Guidelines and Code of Conduct was properly dismissed as moot. The court cited the Department’s adoption of a new Social Media Policy and a revised Code of Conduct along with an affidavit of the current Fire Chief stating that he did not intend to re-issue the original versions to reason that the wrongful behavior was voluntarily ceased and could not reasonably be expected to recur. Therefore, the court held that the district court properly dismissed Plaintiff’s third-party facial challenge as moot.

Full Opinion

Jacob Taylor