On the timeliness of a federal employment discrimination case

In cases under the federal employment discrimination statutes that require filing with the EEOC (Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act), the claimant will eventually receive from the EEOC a right-to-sue letter, and then the claimant has ninety days after receipt of the right-to-sue letter to file in court. See 29 U.S.C. § 626(e), 42 U.S.C. § 2000e-5(f).

In Miller v. Bristol Compressors, Chief Judge Jones of the W.D. Va. found that the plaintiff filed sued on the 91st day, and granted the defendant's motion to dismiss.

The facts were these: (1) the EEOC mailed the right-to-sue on May 31, (2) the complaint alleged on its face that the right-to-sue was received "on or about June 3," (3) in a late-filed affidavit, the plaintiff said that he was on vacation when the letter arrived in his mailbox and first saw it on June 5 (a Sunday), (4) suit was filed electronically on September 2 and the filing fee was paid on September 6.

Chief Judge Jones ruled as follows: (1) a motion to dismiss may be the proper means of asserting the statute of limitations, where the untimeliness is shown on the face of the complaint (2) in applying the 90-day limitations period, the Fourth Circuit does not follow an "actual receipt" rule, because of the potential for abuse, (3) in determining the date of receipt, the Court can apply the presumption underlying Rule 6(e), that the time from mailing to receipt is three days, (4) the Court did not need to decide whether the filing date was September 6 (the Tuesday after Labor Day, when the filing fee was paid) as opposed to September 2 (the Friday before Labor Day, when the complaint was e-filed), (5) plaintiff's motion for extra time to file his response was denied, because no excusible neglect or no particular reason at all was shown; (6) even with the affidavit, the Court would find that the date of receipt was June 3 and not June 5, applying the three-day rule, and not the date when the plaintiff got back from vacation, (7) September 2, when suit was e-filed, was the 91st day after June 3.

On the application of the three-day presumption, there is some diversity of opinion among the other circuits. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) ("When the date on which a right-to-sue letter was actually received is either unknown or disputed, courts have presumed various receipt dates ranging from three to seven days after the letter was mailed."); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986) (deciding on five days, citing 20 CFR § 422.210(c), the five-day presumption for receipt of right-to-sue notices in Social Security cases). See also Rao v. Baker, 898 F.2d 191, 195-96 (D.C. Cir. 1990) (explaining EEOC interprets "receipt ... of final decision" to include "a rebuttable presumption that in all cases in which evidence of the actual date of receipt is lacking, the final agency decision will be deemed to have been received [five] days following the date of decision") (citing 44 Fed. Reg. 34,494 (1979)).

The Fourth Circuit, in unpublished opinions, has recognized the three day presumption. See Nguyen v. Inova Alexandria Hosp., 1999 WL 556446, *3 (4th Cir.) ("If the date is unknown, however, it is presumed that service by regular mail is received within three days pursuant to Rule 6(e) of the Federal Rules."); Dixon v. Digital Equipment Corp., 1992 WL 245867, *1(4th Cir.) ("Rule 6(e) only provides a presumption regarding when notice was received. . . . Title VII claimants may only claim this presumption if the date of receipt of the right to sue letter is disputed."); Ish v. Arlington County, 1990 WL 180127, *1 (4th Cir.) ("We adopt the reconciliation of these positions suggested in Griffin v. Prince William Hosp. Corp., 716 F. Supp. 919, 921 n.7 (E.D. Va. 1989), which held that although Rule 6(e) does not automatically provide a three-day extension to § 2000e-5(f)(1), it does provide a presumption of receipt three days after mailing if the parties dispute the date of receipt.").

Next time, call Domino's

In Coffee v. Morris, the facts were these: the plaintiff mom was riding as passenger, her son was driving, she had two pizzas in her lap, the car gets pulled over for speeding as they were almost home, the son stops in front of their house, the officer tells Mom to stay in the car, Mom gets out, the officer grabs her, Mom sues claiming that her constitutional rights were violated.

On summary judgment, Judge Conrad found that the rights of the passenger were not clearly established, and granted the motion for the defendant based on qualified immunity.

On getting your case transferred from Roanoke to Big Stone Gap

In Simmons v. Johnson, Judge Conrad explained why a claim related to an incident at the Wallens Ridge facility in Wise County should be heard in the Big Stone Gap division rather than the Roanoke division in which it was filed.

West Virginia Supreme Court upholds constitutionality of coal severance tax

In U.S. Steel Mining Company, LLC v. Helton, the West Virginia Supreme Court in a split decision affirmed the constitutionality of West Virginia's coal severance tax. The AP has this article and the Charleston Gazette has this article about the decision.

Here and here are earlier posts on this topic.

Another Virginia bigamy case

The Harrisonburg paper has this report on a bigamy prosecution.

The article quotes the Commonwealth's Attorney:

"It’s a big deal when you get married," Mitchell said. "You can’t arbitrarily end that marriage by getting married to someone else."

The article did not say whether the defendant would claim that the bigamy statute was unconstitutional, on the theory that Lawrence v. Texas has declared all laws about sexual morality to be irrational and therefore invalid. I'm sure that every one of the judges up there would be delighted to entertain the issue.

Local attorney arrested on allegations that he e-mailed his client with instructions to lie in court

Someone sent me this link, which says in part:

"The Tennessee Bureau of Investigation is now investigating a Tri-Cities attorney for perjury, after he is accused of advising one of his clients to lie under oath. . . .

The arrest came after his client, a defendant in a DUI case, provided the judge with two emails from Pratt before her trial started today."

Is $4,000 too much in fees for a 4-page brief?

In this post, Ernie talks about Judge Posner and his opinion in Budget Rent-a-car System, Inc. v. Consolidated Equity LLC.

Judge Posner wrote:

"We ordered that sanctions be imposed on Consolidated Equity for this frivolous appeal, Fed. R. App. P. 38, and Budget has submitted a statement of its fees and costs. They are exorbitant. Because the appeal was dismissed before briefing, Budget’s only appellate submission was a four-page jurisdictional memo that cites five cases. Budget claims that the memo cost $4,626.50 to produce (3.3 partner hours at $425 per hour and 10.4 associate hours at $310 per hour); for so modest a product, 13.7 hours of high-paid professionals’ time are too many."

More perilous, the lawyers for Budget put in $165 as costs, which was the fee for one of its lawyers to be admitted to the bar of the appeals court, which caused Posner to add, "Budget’s mischaracterization further undermines the credibility of its submissions."

Ernie's post links to discussion among some lawyers that appeals court judges don't have a very good idea about what things cost.

Another case where I could be either counsel or expert witness

Reason links to this report in the Atlanta paper about the next big thing - liability claims against soda makers.

I thought I was an expert on Big Macs, but I have even more experience drinking Coca-Cola. My opinion? The cola marketing has no effect on anyone, so I suggest that you have a Coke and a smile.

After-acquired evidence as a defense to the merits in employment contract cases

According to this post from one of the Branham & Day blogs, the Tennessee Supreme Court held in Teter v. Republic Parking System, Inc., that after-acquired evidence can be presented as a defense to the merits of a claim for breach of an employment contract, but the burden of proof is on the employer.

What this means is that where the employee can only be fired "for cause," even if the cause the employer had in mind is insufficient or can't be proven, the employer can take discovery to find some other cause that it didn't even know about at the time of the dismissal.

I have argued for something similar under Virginia law, citing some old cases. At one hearing, the other lawyer argued, oh, those cases are old. The judge asked whether counsel believed that the age of enlightenment had reached the Supreme Court of Virginia only some time after those cases were decided.

On the writers and the Baseball Hall of Fame

This column from the Norfolk paper explains that the ballot for this the last year when the baseball writers could vote in Pete Rose to the Baseball Hall of Fame does not have his name on it, and so he's left with the veterans if he is to ever get into the Hall.

Some of my friends are passionate about Pete, I am not. Years ago, there was a Pizzeria Uno on King Street in Old Town Alexandria, and upstairs they had a life-sized picture of Pete from the 1975 World Series, with one arm slung around Fred Lynn of the Red Sox, happy as a clam, and with the other hand giving the photographer the finger. That sums him up for me: great baseball man, poor impulse control.

Among those who actually are on the ballot, with not much chance of success, is Dave Parker, who would get my vote just for his throw from right field to home plate during the 1979 All-Star game in the Seattle Kingdome that was shown every week during the closing credits of Mel Allen's This Week in Baseball, with that great violin and horn music in the background (a six second snippet of which can be heard here, where they are selling it for downloading to cellphones). He did it in slow motion, a strike from 300 feet, every Saturday.

You're doing a great job, Brownie?

I never knew or had forgotten until I read this Post article on the McConnell-Deeds race that the head of the State Board of Elections in Virginia is named Michael Brown.

On my youthful appearance

I am 41, and have greying hair, but people think I am younger.

A while back, someone called me to help them out with a small project, because they had been told by their regular lawyer that I was "the expert."

When we met, the client contact was surprised by my appearance. You're not at all what I expected, the contact said, I thought you were about 60.

Perhaps they were expecting "the expert" to look more like this.

On the efficacy of federal mandatory minimum sentences

The Roanoke Times reports here: "A Roanoke County man who ordered child pornography through the mail was sentenced Tuesday to 15 years in prison, the mandatory minimum for a previously convicted child molester. But U.S. District Court Judge James Turk told prosecutors that he would have levied a lighter sentence if he could, because he was unconvinced that Dennis Marco Mills, 48, had molested more children since his last conviction."

An expert for the government testified "that watching child pornography is the first rung on a ladder to molesting again." The U.S. Attorney argued "that someone would get a life sentence . . . and that the prosecution hoped it was Mills, a three-time convicted sex offender, rather than some future victim of his."

This is an interesting case, as the issues raised go the heart of what is sentencing all about. To what extent is the goal of sentencing to punish the accused for what he has done, as opposed to preventing him from doing what he might do? Also, the case is interesting from the point of view of mandatory minimum sentences, fixed by the legislature. From Judge Turk's comments, it appears that reasonable minds could disagree widely as to what sentence is appropriate in this case. Is society better served when the legislature makes a blanket decision about the minimum jail time for such cases, or should someone in the position of the judge be able to fashion an appropriate sentence based on the particular evidence in each individual case?

Warner grants clemency to Lovitt

The AP is reporting that earlier this afternoon, Governor Warner granted clemency in the case of Robin Lovitt, who was scheduled to be executed this week for a murder committed in 1998.

This is the case where the court clerk is accused of throwing out part of the evidence which could have exonerated the defendant (or not) if it was available for modern DNA testing today.

Judge Conrad substitutes U.S. as sole defendant in defamation case against Rep. Rahal

In Chapman v. Rahall, Judge Conrad of the W.D. Va. ruled that the United States was the sole proper defendant for the claims against West Virginia Congressman Nick Rahall for stuff he said on TV about the plaintiff, under the Federal Tort Claims Act as amended by the Westfall Act.

This outcome likely does in the plaintiff, either because of failure to exhaust administrative remedies for an FTCA claim or because of the intentional act exclusions to the liability of the United States under the FTCA.

Interesting that there was no discussion of the constitutional immunity of congressman under the U.S. Constitution's speech and debate clause. Years ago, the Supreme Court held in Hutchinson v. Proxmire, 443 U.S. 111 (1979), that the immunity under the Speech and Debate clause did not extend to statements made by Senator Proxmire in his press releases and newsletters.

Judge Urbanski on attorneys' fees and court costs in a Lanham Act case

In Southprint, Inc. v. H3, Inc., Magistrate Judge Urbanski of the W.D. Va. denied the winner's request for attorneys' fees in a Lanham Act case and also denied about half of the plaintiff's claim for court costs under Rule 54.

In particular, the expedited process server fee was denied, and costs were allowed only for those depositions that "were submitted and necessary in rendering a decision on the motion for summary judgment." Judge Urbanski also booted the claims for court reporter extras like condensed transcripts, transcripts on disc, and postage or shipping costs. Also, the judge booted the claim for a transcript of the court hearing on the motion for summary judgment. The court also allowed a fraction of the plaintiff's copying costs, which was a new one on me. Copy costs? Anyhow, the judge is right on all counts, so far as I know.

SW Virginia law list of books

Here is an Amazon list mostly of books I've read or written about on this blog, about Virginia trials or cases or lawyers. I'm sure that there are a few more such books out there, send me a line if I've missed some of the more obvious titles.

Also, check out Chad's post re: readings on Virginia politics.

Who says removal from state court in Virginia is a good thing

According to this Bacon's post, the Chamber of Commerce says that Virginia has the No. 4 best legal system in the country, trailing only those jurisprudential Edens situated in Delaware, Nebraska, and North Dakota.

Double reversal in the Virginia removal case

In the Roche v. Lincoln Property case, the plaintiffs brought their products liability case in state court in Virginia, the defendants removed the case to the E.D. Va., the trial court judge slammed the plaintiffs' case by booting their expert testimony under Daubert and granting summary judgment on the merits for lack of evidence, the plaintiffs appealed to the Fourth Circuit on issues related to the removal, the Fourth Circuit reversed the judgment for the defendant on jurisdictional grounds, and finally, in today's unanimous opinion, the Supreme Court reversed the decision by the Fourth Circuit, concluding that the propriety of removal was to be determined based on the actual, rather than the potential, defendants to the state court case.

One interesting footnote from the case says: "The Roches state that they preferred to litigate in state court for two principal reasons: Virginia does not permit summary judgment based on affidavits or deposition testimony, and Virginia has not adopted the rule of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to assess expert evidence." Hey, no kidding, since they were subsequently zapped in federal court by Daubert and summary judgment practice.

Odds of winning a federal appeal - not great

Here are some statistics that say federal court appellants generally lose.

Then again, the reversal rates in cases where the parties are represented by counsel in a civil case on legal issues are surely greater.

How the vote count has changed since election night

The Richmond paper says here: "Since the day-after-election tally, Gov.-elect Timothy M. Kaine has picked up about 3,000 votes, while Republican Jerry L. Kilgore gained about 2,500 votes. Independent H. Russell Potts Jr. lost 84 votes.

In the race for lieutenant governor, Lt. Gov.-elect Bill Bolling, a Republican from Hanover County, gained about 3,200 votes, while Democrat Leslie L. Byrne gained 3,800.

In the attorney general's race, McDonnell gained 1,600 votes, while Deeds picked up 3,200."

On Katrina refugees at Virginia

This story about college students from Louisiana schools who were admitted for a semester elsewhere while their schools were closed begins with the tale of a young woman from Tulane would like to stay on next semester at the University of Virginia (but evidently can't).

New judge in Wise County

Brian Patton says here the Coalfield Progress is reporting on its front page (but not online) that the 30th Circuit judges have appointed Joe Carico as the next general district court judge, to serve until the General Assembly selects a replacement for Judge Fulton, who took a job in Richmond. Carico was the Commonwealth's attorney in Wise County from December 1999 until March 2003 when he became the Chief Deputy under Attorney General Jerry Kilgore.

Describing Carico as a candidate for Commonwealth's Attorney in 1999, the Kingsport paper wrote:

"Carico, 29, is an associate with Norton law firm Wolfe and Farmer and a graduate of Samford University's Cumberland School of Law. A graduate of the University of Virginia's College at Wise, Carico also served four years in the Army as an artillery man before attending law school and clerking for Buchanan County Circuit Judge Bob Williams and with the Alabama Supreme Court."

The Becker-Posner Blog's discouraging words on the bird flu

The Posner and Becker posts on the avian flu are not full of good cheer.

Unrelated to this, Stephen Choi's oft-cited empirical survey of federal judges put Judge Posner at the top, and Judge Samuel Alito near the top at No. 16. The order of merit among the Fourth Circuit judges 65 and under as of 2003 was Wilkinson (No. 3), Niemeyer (No. 4), Luttig (No. 10), Motz (No. 32), Wilkins (No. 37), Williams (No. 49), and Michael (No. 66), if that tells you anything about Choi's "tournament."

On Appalachian food

On this article with an interview of the author of Appalachian Home Cooking: History, Culture, And Recipes, one of the items mentioned is "soup beans and corn bread with fresh onions on top."

My wife, being from Northern Virginia, once reported to me her discovery that my parents sometimes eat such a dish for lunch.

The Wagner family goes to New York

Earlier, the NY Times had this article on the cultural hurdles to the NY Mets' efforts to lure Southwest Virginia native and hard-throwing free agent relief pitcher Billy Wagner to come and pitch in New York.

The article says in part:

"This morning, Billy Wagner and his wife, Sarah, will leave their three children and herd of alpacas at their 60-acre spread near the Blue Ridge Mountains in central Virginia for 36 potentially life-altering hours in and around the biggest, noisiest and perhaps most intimidating city in the country. . . .

Of most concern is his comfort in the area, because his family plans to move with him. Philadelphia might have a slight edge in the Wagner sweepstakes even if the Phillies cannot match the Mets' money. The Mets sent a DVD to Wagner about greater New York, but now, in person, they will have their best opportunity to sell the big city to a player who does not have big-city roots. . . .

Wagner, who spent parts of nine seasons in Houston and the last two in Philadelphia, is no stranger to bright lights. But he is a professed country boy who grew up in a town of 360 nestled in the Appalachian Mountains of southwestern Virginia. The Mets understand that it is imperative to demystify the stereotype that life here begins and ends in Times Square. . . ."

Buy a condo to support your college football habit

This article from the Baltimore Sun begins with the tale of a couple who bought a condo in Blacksburg just to use for Hokie football weekends.

On relations between landowners and gas companies

The AP has this story that says some Appalachian landowners don't like the gas companies who are drilling like crazy these days.

On diversity jurisdiction and national banks

SCOTUSBlog has this post on the national bank / diversity jurisdiction case, on appeal from the Fourth Circuit, to be argued tomorrow in the U.S. Supreme Court. The issue is "whether, for purposes of diversity jurisdiction, a national bank is considered a citizen of every state in which it maintains branches, even when its main office is in a different state." The Fourth Circuit said yes, Wachovia is arguing no, and is supported by the Solicitor General's office.

Another free PDF converter

Via PDF for Lawyers, here is another free PDF converter, supposedly without some of the more annoying aspects of the other freebies.

Why shout Hoos and O's during the national anthem

Here from Wikipedia is an explanation of the Hoos! and O's! heard shouted during the National Anthem.

I don't mind the shouting, so long as they sing the rest of it, with gusto.