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Week 43 (2018)

Week of October 22, 2018 through October 26, 2018

Day v. Johns Hopkins Health Sys. Corp. (Wilkinson 10/26/2018): The Fourth Circuit held that an expert witness protected from liability based on their testimony under the Witness Litigation Privilege. The Privilege is part of federal common law and not displaced by RICO (specifically the racketeering activities under RICO) because of the importance of testimony to the litigation process. The court affirmed the District Court of Maryland’s (Baltimore) order dismissing Plaintiffs’ claims that the Defendant and his colleagues were liable for their testimony at an administrative hearing for the Federal Black Lung Program.  Full Opinion

Elec. Welfare Tr. Fund v. United States (Wilkinson 10/23/2018): The Fourth Circuit held that a federal district court lacked subject matter jurisdiction to hear a case concerning payments under the Affordable Care Act. As payments, and not taxes, exclusive jurisdiction was statutorily vested in the Court of Federal Claims. The Fund sued under the Tax Refund Statute to recover money paid to the Department of Health and Human Services, but in affirming the District Court, the case was properly dismissed. Full Opinion

Kerpen v. Metro. Washington Airports Auth. (Wilkinson 10/22/2018): The Fourth Circuit affirmed that an airport and its surrounding toll roads were not federal; therefore, it is a private entity and can charge toll road funds to build services at the airports’ discretion. The MWAA leases Washington Dulles and Reagan National airports from the federal government, and operates a toll road and metro line connecting the two to Washington, D.C. Even though leased from the federal government, MWAA has the right to decide how to spend toll funds under both the Transfer Act and the terms of the lease. Full Opinion

Highlight Case

South Carolina v. United States of America, No. 18-1148

Decided: October 26, 2018

The Fourth Circuit affirmed a District Court’s granting of summary judgment regarding the Department of Energy’s (hereinafter “DOE”) failure to comply with federal statutory obligations regarding the removal of plutonium from South Carolina.

In 2000, the US and Russia agreed to dispose of at least thirty-four metric tons of weapons-grade plutonium. The DOE developed a plan to turn the plutonium into fuel for nuclear power reactors. A facility to create the fuel was constructed near Aiken, South Carolina.  Then Governor Hodges insisted on an agreement regarding promises made by the government. Such provisions included that if the DOE processed less than one metric ton of plutonium through the facility in an 18-month period, it would remove at least one metric ton of defense plutonium within 2 years and all plutonium material within 8 years. Additional terms regarding the end date of the storage existed too.

South Carolina filed suit to compel the DOE to comply with the terms of agreements and for injunctive relief of the DOE to promptly remove not less than one metric ton of defense plutonium and make $1 million per day assistance payments to the State. Ultimately, summary judgment was awarded to South Carolina regarding the removal provisions and DOE had a nondiscretionary duty to remove one metric ton from S.C. by January 1, 2016. In an injunctive order dated December 20, 2017, the DOE is required the one-ton removal by January 1, 2020 and that the District Court of South Carolina retained jurisdiction to enforce the injunction.

DOE timely appealed the injunction, and the Fourth Circuit asserted its ability to review under 28 U.S.C. § 1292, even though the district court retained jurisdiction to enforce. In reviewing the injunction for abuse of discretion, the appellate court looked to see if DOE could comply with the injunction. The Court found that the original contracts foresaw the possibility of injunctive relief and that the DOE did not offer sufficient support that they could not comply with the two-year deadline. Therefore, the injunction was affirmed.

Full Opinion

Maura Ashton