[Posted January 29, 2016] The Fourth Circuit hands down three published opinions today, two of which caught my eye.

First Amendment

A Norfolk business named Central Radio got its fourth view of an appellate courtroom in an appeal decided today: Central Radio Company v. City of Norfolk. My readers with good memories may recall that this is the company that won an eminent-domain battle with the Norfolk Redevelopment and Housing Authority in the Supreme Court of Virginia 2013. That case involved whether the Authority could use blight-remediation condemnation to acquire property that was not itself blighted. The justices ruled three years ago that it could not, and the company got to stay put.

This is a separate case against the City. During the ordeal with the Authority, the company placed a banner on the side of its building with a protest message:






In response, a zoning inspector told the company to take down the sign, since it violated the City’s sign ordinance. That regulation specified a maximum size for several kinds of signs, including this one.

That led to secondary litigation – a suit seeking injunctive and declaratory relief, claiming that the sign ordinance was an unconstitutional restriction on freedom of speech. The district court and Fourth Circuit sided with the City, using previous Fourth Circuit caselaw. But last year, SCOTUS issued a key ruling in Reed v. Town of Gilbert that meant that the Fourth’s previous test was inappropriate. The high Court remanded Central Radio’s case to the Fourth for reconsideration in light of Reed. Today, that move finally pays off for the company.

It doesn’t get an unqualified win; the judges agree that the company’s discriminatory-enforcement claim was unsupported, so summary judgment for the City on that claim is affirmed. But the court finds that the Reed test now requires strict scrutiny of the sign ordinance, and under that harsh light, the regulation can’t stand up.

Here’s a good example of why. The City claimed that it had a legitimate interest in regulating the size of signs, so as to avoid creating a distraction for drivers. (A brief aside: the discriminatory-enforcement claim pointed out another sign that’s familiar to drivers here in Tidewater – the enormous and startling electronic billboard for Nauticus on Waterside Drive. Westbound drivers encounter that blaring sign when they round a curve, without warning. Norfolk cheerfully encourages that one.) But the ordinance banned certain types of flags and signs, while allowing others. For example, governmental and religious flags were allowed, but others were forbidden; a mural showing a work of art was cool but an advertisement for a product was uncool.

The problem is that the City never justified how one type of flag, sign, or mural would be less distracting than another. That means that the restriction is content-based, so strict scrutiny applies.

The company had also sought permanent injunctive relief against the ordinance itself. The City dodged that bullet by amending its ordinance late last year, and today’s panel agrees that that moots this issue.

The court remands the case for entry of a nominal award for the First Amendment violation, and for other relief as it sees fit. One important omission is any mention of whether Central Radio brought this claim under §1983. If so, then it might be in for a hefty attorney’s-fee award, for that nominal win and for helping to persuade the City to ditch the content-based ordinance. We’ll have to wait for the denouement.

Governmental immunity

The court decides not to decide Aikens v. Ingram, a claim by one military officer against two others. The origin of the non-decision is a 65-year-old doctrine that will be familiar to anyone handling federal tort claims involving the military.

This is a case of domestic snooping. Aikens was a colonel in the North Carolina Army National Guard, and commanded a unit known as the Rear Operations Center. His supervisor, Adjutant General Ingram, allegedly (this was a summary-judgment appeal, so the plaintiff gets the benefit of the facts) appointed one Lieutenant Colonel von Jess to serve as the colonel’s adjutant. The suit alleged that the general and the LTC were pals, and both felt antipathy toward the colonel, helped along by the colonel’s unfavorable performance evaluation of the LTC.

The colonel was activated and sent to Kuwait, but the general and LTC stayed home. While he was overseas, two enlisted men hacked into his e-mails, evidently found some salacious stuff (we don’t know for sure what was in them), and forwarded it to the LTC. That officer was only too happy – so we have to infer from the state of this record – to forward that information to the general, as well as to the Department of the Army.

So, what do you do with unlawfully obtained evidence? A civilian court may or may not have suppressed it; that’s actually doubtful here because Army regulations state that a servicemember’s e-mails can be monitored. Nevertheless, the Army used the information to essentially decertify the colonel, and he was “constructively terminated” (that’s the Fourth’s phrase) from the National Guard.

The colonel sued the general and the LTC in federal court, asserting that they “facilitated unconstitutional searches and seizures of his personal emails while he was deployed in Kuwait.” He claimed that the two officers had directed the enlisted men to hack his e-mails.

The district court dismissed the claims based on the Mindes v. Seaman doctrine from the 5th Circuit. The Fourth Circuit panel today disagrees that that’s the right standard; it applies where a plaintiff seeks equitable relief, and the colonel only sought money damages, at least at the appellate level. The Fourth turns instead to the Feres v. US doctrine that servicemembers know all too well.

Feres holds that members of the armed forces can’t sue in tort for injuries that arise out of or are in the course of “activity incident to service.” I’ll cut right to the chase and note the court’s key holding: it extends the doctrine to §1983 liability. In doing so, the court draws support from several other circuits, though as far as I can tell, this is a first-impression holding here.

The court closes the loop by finding that this claim arises under the broad (and poorly defined) ambit of “activity incident to service.” That finding requires the courts to back off and leave to the military those matters involving its officers’ and enlisted members’ relationships.

Judge Shedd files a concurring opinion, stating that even if there were no Feres doctrine, he would still vote to dismiss, because at the summary judgment stage, the colonel had no evidence to establish that either officer actually directed or authorized the enlisted men to conduct the snooping.