Appellate Case Roundup

By Joe Murray

The appellate courts have been busy this summer. Unfortunately, none of the opinions are very enjoyable to read—unless you love technical opinions on ERISA, SOX, and the MSPB.

Pense v. MD Dep’t of Public Safety, No. 18-1554 (4th Cir. June 11, 2019) (11th Amendment): Just a reminder when bringing claims under state law against a state in federal court: a state can only waive its 11th Amendment immunity “by the most express language or by such overwhelming implication from the [statutory] text.” Pense’s claims alleging sexual orientation discrimination under Maryland’s FEPA are dismissed.

Northrop Grumman Systems Corp. v. US Department of Labor, No. 17-1811 (4th Cir. June 13, 2019) (SOX): The 4th Circuit makes it clear to DOL that SOX whistleblower protection is limited to six specific areas and is not a catchall retaliation provision. The 4th Circuit reversed the DOL’s judgment,[1] finding that an employee arbitration policy is not shareholder fraud and, even if it could be shareholder fraud, there was no objective reason to believe this particular arbitration clause constituted a violation of SOX.

Sweeney v. Merit Systems Protection Board, No. 18-1458 (4th Cir. June 14, 2019) (unpublished) (Merit Systems Protection Board): Sweeney had to choose between two bad options: participate in termination proceedings or agree to reassignment to another facility two hours away. Sweeney chose the reassignment and then initiated MSPB review over the legality of his reassignment. The 4th Circuit reiterated that the MSPB cannot review an employee’s challenge to voluntary actions, even if the employee’s voluntary action is to choose between unattractive options.

Odle v. UMWA 1974 Pension Plan, No. 18-1398 (4th Cir. June 20, 2019) (unpublished) (ERISA): The 4th Circuit found the Pension Plan abused its discretion in denying additional service credit when it failed to provide Odle the opportunity to review key evidence during the administrative process. This failure required reversal of the decision and remanded for further proceedings since the lack of disclosure prejudiced Odle.

Smith v. Reliance Standard Life Ins., No. 18-2225 (4th Cir. June 20, 2019) (unpublished) (ERISA): When (1) multiple doctors state a person is permanently disabled, (2) the person undergoes a multitude of medical procedures, (3) the Social Security Administration deems the person disabled, and (4) the person takes at least 17 medications a day (with side effects), don’t cherry-pick two or three enigmatic or opaque statements in the medical notes to terminate disability benefits. Reliance abused its discretion under ERISA in terminating Smith’s long-term disability benefits.

Atkins v. Town of Wake Forest, No. COA18-1167 (N.C. App. July 2, 2019) (unpublished) (REDA): While in the hospital for his workers’ compensation injury, Atkins admits to previously lying about why he was not riding his police motorcycle every day. After he files a workers’ compensation claim, Wake Forest has private investigators trail Atkins, who discover his activities at Disney World exceed his self-reported limitations and doctor’s restrictions. Four months after Atkins filed his workers’ compensation claim, Wake Forest terminates him for “untruthfulness” based on the lie and “workers’ compensation fraud.” REDA violation? No, because there is no causal connection: There is no temporal proximity and Wake Forest had a legitimate, nondiscriminatory reason for termination.

Board of Trustees v. Four-C-Aire, Inc., No. 17-2295 (4th Cir. July 3, 2019) (ERISA): I’m going to level with you: I skimmed this one. This multiemployer-pension-plan ERISA case found the pension plan alleged a viable claim for delinquent exit contributions when the governing agreements and the CBA “require participating employers to pay an exit contribution when they no longer have a duty to contribute to the Fund due to the expiration of the underlying CBA.”

Overbey v. Mayor & City Council of Balt., No. 17-2444 (4th Cir. July 11, 2019) (settlement agreements): This case arises from the settlement of a police brutality claim, but it’s relevant for any settlements involving governmental entities. The settlement agreement contained a non-disparagement clause preventing Overbey from discussing her case publicly. Overbey violated the non-disparagement clause, and Baltimore withheld half the settlement amount as liquidated damages. The 4th Circuit held that non-disparagement clauses like the one in Overbey’s settlement agreement amount to a waiver of 1st Amendment rights and that those clauses are unenforceable and void.

Randolph v. Powercomm Construction, Inc., No. 18-1728 (4th Cir. July 11, 2019) (unpublished) (FLSA): I noted the first appeal in this case back in 2017.[2] The 4th Circuit is still not impressed with the district court’s determination of attorney’s fees and reiterates that a district court must consider unsuccessful plaintiffs and degree of success in determining attorney’s fees.


[1] The DOL ordered Northrop to reinstate the complaining party; awarded her back pay, front pay, and damages; and $507,821.12 for litigation costs, expert witness fees, and reasonable attorney’s fees.

[2] If you’re tired of reading my posts after three years, please feel free to submit your own posts to us. We’re always looking for submissions.