By Morgan Kleinhandler

The rise in technology and the COVID-19 pandemic have caused an increase in interconnectedness through the internet.[1]  The pandemic specifically has led to an increase in higher education utilizing remote learning and online test-taking options.[2]  Most colleges and universities were forced during the beginning and peak of the pandemic to move classes and examinations online, which has resulted in new ways for students to be academically dishonest during examinations.[3]

Recently, David Berkovitz, an assistant professor at Chapman University in California, has taken legal action against such academic dishonestly.[4]  When he discovered that his confidential exam questions had been uploaded to a subscription website geared towards college students, Berkovitz filed suit against the students who submitted the questions.[5]  Berkovitz argued that the exam questions constitute copyrighted material that he owns.[6]  The lawsuit has since reached national headlines, prompting a nationwide discussion over the copyright protection of university materials.[7]

Federal statutes primarily establish copyright law in the United States, which protects the ownership rights of an author of an original work.[8]  The Copyright Act of 1976, codified as Title 17 of the United States Code, governs federal copyright law and establishes what materials are protected by copyrights and how such protection is established.[9]  Specifically, 17 U.S.C. § 102 provides that “original works of authorship fixed in any tangible medium of expression” are protected by copyright law.[10]  This protection would extend to Berkovitz’s examination questions in the case at hand because he wrote them himself.[11]  Regardless of whether the students were given the question on physical paper or through electronic means, these originally developed questions would be considered “fixed in . . . [a] tangible medium of expression.”[12]

Although Berkovitz’s examination questions are undoubtedly copyrightable material so long as he wrote the questions himself, there is still the question of who would own the copyright in question.  Section 201(b) of the Copyright Act states that absent an express, written, and signed agreement otherwise, when an actor creates original works of authorship as an employee within the scope of employment, the employer owns the rights to the copyrighted work.[13]  In Berkovitz’s case, it seems that such an agreement had been put in place by his employer, Chapman University.[14]  In a press release, Chapman University stated that it allows its professors to maintain ownership over copyrightable works that they create.[15]  Therefore, so long as a written agreement signed by both parties exists, Berkovitz would have ownership over the examination questions released by his students.

Although there is an exception to copyright protection allowing for limited use of protected materials without author permission, it is unlikely that the students in this case would be protected by this exception.  Despite copyright law’s protection of authors’ rights to ownership over their works, this exception, known as the fair use doctrine, exists to allow for some limited but legal use of copyrighted material without first obtaining the author’s permission.[16]  In order to use copyrighted material under the fair use doctrine, 17 U.S.C. § 107 lays out four factors that courts use to analyze fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.[17]

In the case at hand, the students leaked Berkovitz’s questions to a for-profit website, meaning the first § 107 factor would likely not weigh in the students’ favor.  Further, because the materials leaked were confidential examination questions that would be useless to the professor if students had access to the questions before the test, the second factor of the fair use doctrine test would similarly weigh against fair use.  This reasoning means the third factor also weighs against fair use because the substance of the confidential questions would be deemed useless by the author, Berkovitz, once students have access to them prior to examinations.

Finally, because of the confidential nature of the examination questions and the importance of fairness in the university examination process, the fourth factor would also weigh against the students’ favor.  While the fair use doctrine was designed to allow for limited use of copyrighted material “to promote freedom of expression,” through certain kinds of uses, taking copyrighted material for the purpose of cheating on university examinations would most likely fall outside of this purpose.[18]

Federal Copyright protection is an important aspect of the law that protects author ownership and promotes creativity and innovation.[19]  With the new rise in online examination in higher education, Berkovitz’s lawsuit against students who leaked his copyrighted questions serves as a reminder to university students across the country that professor-made materials are owned by professors and may not legally be given to for-profit websites to promote cheating.

[1] Apurvakumar Pandya & Pragya Lodha, Social Connectedness, Excessive Screen Time During COVID-19 and Mental Health: A Review of Current Evidence, Frontiers Hum. Dynamics (July 22, 2022),

[2] Sean Gallagher & Jason Palmer, The Pandemic Pushed Universities Online. The Change Was Long Overdue., Harv. Bus. Rev. (Sept. 29, 2020),

[3] Id.; Sneha Dey, Reports of Cheating at Colleges Soar During the Pandemic, NPR (Aug. 27, 2021),,these%20students%20who%20were%20cheating.%22.

[4] Cherri Mossburg, Professor Files Lawsuit to Find Students Who Posted Exam Questions Online, CNN (March 20, 2022),

[5] Id.

[6] Id.

[7] Id.; Jaclyn Peiser, A Professor Found His Exam Questions Posted Online. He’s Suing the Students Responsible for Copyright Infringement., Wash. Post (March 17, 2022),

[8] 17 U.S.C. § 102.

[9] Id.

[10] Id.

[11] Id.; Mossburg, supra note 4.

[12] Id.; Copyright and Fair Use, Harv. U.,

[13] 17 U.S.C. § 201(b).

[14] Mossburg, supra note 4.

[15] Id.

[16] 17 U.S.C. § 107.

[17] Id.

[18] More Information on Fair Use,,,protected%20works%20in%20certain%20circumstances.

[19] Understanding Your Copyrights, Creative L. Ctr.,,%2C%20learning%2C%20and%20creative%20work

By Belén Wilson

The United States southeastern coast is known for its beautiful barrier islands and unique marshlands.  Though some of these islands have been preserved, many are now home to luxury resorts, hotels, and even modern retirement communities.[1]  While boom in development brings tourism to the islands, it comes at a painful cost to some of the coasts’ original community members, the Gullah/Geechee, who are fighting for ownership of their ancestral lands.[2]  The lack of protection the law affords to heirs’ property owners is responsible for the displacement of these local communities.[3]

The Gullah/Geechee are descendants of West African slaves who were brought to plantations on the southeastern coast of the United States, stretching from Wilmington, North Carolina to Jacksonville, Florida.[4]  These diverse people came from many ethnic groups; the nature of their enslavement on isolated islands created a unique culture with its own language that is still used today.[5]  This culture flourished during the Civil War, during which conflict plantation owners deserted their coastal properties.[6]  Their abandonment allowed the Gullah/Geechee to purchase the land, consequentially becoming the first African Americans to own large amounts of land in the United States.[7]  This land was then passed down generationally, though primarily done without legal title.[8]  When property is devised without an effective deed or will, but rather passed down generationally in a family, it becomes heirs’ property.[9]  Accordingly, heirs’ property is a form of tenancy in common whereby familial descendants receive a fractional interest in the land, like a share of a company’s stock.[10]

As generations pass, more heirs acquire an interest in the property, which causes unstable ownership because each heir possesses an unrestricted right to request a partition by sale of the property.[11]  This right to partition is particularly harmful to Gullah/Geechee communities, whose residencies on the coast are prime targets for real estate developers.[12]  Since all heirs own an interest in the property, a developer simply has to find one descendant and convince them to sell their share.[13]  If successful, this can force the sale of the entire property, causing the legal displacement of the heirs who live and have lived on the property for years.[14] Once the developer buys a share from a willing heir, the developer can order a partition sale, which are typically forced public sales that yield below market value.[15]  Courts that order these sales often do not consider the property’s ancestral value or broader historical and cultural significance.[16]

Partition sales of heirs’ property are one of the leading causes of involuntary land loss within the African American community.[17]  This loss of land prevents families from creating intergenerational wealth; researchers estimate African American property owners have lost billions of dollars and millions of acres of land through heirs’ property auctions.[18]  Despite this significant land loss, there was no meaningful legal reform until 2010 when the Uniform Law Commission enacted the Uniform Partition of Heirs Property Act (“UPHPA”), which provides due process protections to heirs’ property owners.[19]  Though it’s been eleven years since its passage, only eighteen states have adopted a version of the UPHPA.[20]

However, this year, seven states introduced a version of the UPHPA to their state legislatures, with North Carolina—a Gullah home state—being one of them.[21]  Many attorneys are working hard to protect heirs’ property rights, but the devasting amount of land loss and communal displacement showcases the need for legislative reform.[22]  While development along the coast is desirable, it must be balanced against the need to preserve the culture, language, and history of local communities.  The Gullah/Geechee are just one of many communities in the United States suffering from the inadequate protection of heirs’ property ownership,[23] and until there is reform they will remain susceptible to property and culture loss.

[1] For example, Hilton Head Island, where there is a large Gullah community, promotes its array of accommodations, ranging from luxurious resorts to exclusive beachfront homes and villas.  See Where to Stay on Hilton Head Island, SC, Hilton Head Chamber of Com. & Visitor and Convention Bureau, (last visited Apr. 1, 2021).

[2]See Brian Wheeler, Gullah Geechee: Descendants of Slaves Fight for Their Land, BBC News (Dec. 5, 2016),  The origin of the terms “Gullah” and “Geechee” are disputed, but it is generally accepted that Gullah people are located in coastal South Carolina while Geechee live along the Georgia coast and into Florida.  Id.

[3] Michelle Chen, Black Lands Matter: The Movement to Transform Heirs’ Property Laws, The Nation (Sep. 25, 2019),  (“[T]he Gullah . . . have seen their ancestral lands . . . virtually vanish through the attrition of heirs’ property.”).  For a recent video on how heirs’ property affects Gullah property owners, see Disrupt and Dismantle: The Battle for Black Land, Bet (Mar. 12, 2021),

[4] The Gullah Geechee, The Gullah Geechee Cultural Heritage Corridor Comm’n, (last visited Apr. 26, 2021).

[5] Id.  Since these Africans came from “more than two dozen ethnic groups and sp[oke] forty different languages, communication among slaves at first was difficult.”  Faith R. Rivers, The Public Trust Debate: Implications for Heirs’ Property Along the Gullah Coast, 15 Se. Env’t. L. J. 147, 151 (2006) (quoting Walter Edgar, South Carolina a History 71 (1998)).   “Accordingly, African Americans were forced by circumstance to develop their own means of communication, which led to the development of a creole language termed ‘Gullah.’”  Id.  

[6] SemDem, The Gullah-Geechee Have Owned Land Since the 1800s. One Terrible Law Allows Their Land to Be Stolen, DailyKos (Aug. 1, 2020, 10:29 AM), (stating that most plantation owners abandoned their land when the Civil War broke out).

[7] Rivers, supra note 5, at 154 ( “A significant number of Gullah heirs’ property owners can trace their ownership back to land purchases by former slaves during the Civil War and the Reconstruction period.”); DailyKos, supra note 6.

[8] Matt Reynolds, Fractured: How Jim Crow-Era Laws Still Tear Families from Their Homes, 107 A.B.A. J. 52, 54 (2021) (stating that after Reconstruction “unsophisticated property owners without the means or ability to hire a lawyer—or with a justifiable distrust of the courts—divvied up their assets informally, creating ‘interests’ for descendants”).

[9] See DailyKos, supra note 6.

[10] See Chen, supra note 3. 

[11] Restoring Hope for Heirs Property Owners: The Uniform Partition of Heirs Property Act, A.B.A. (Oct. 1, 2016),

[12] Kate Hidalgo Bellows, “We Lose the Land, We Lose the People”: A Farmer’s Quest to Save St. Helena’s Gullah Land, The Island Packet, (Sept. 25, 2020, 8:10 AM) (stating that the Gullah/Geechee’s coastal land is “a beautiful area of the state, which makes it extremely desirable”).

[13] See A.B.A., supra note 11.

[14] See DailyKos, supra note 6 (“It isn’t uncommon for a descendant to build a home on their heirs property, live there for their entire lives, and then be completely uprooted by just one out-of-state relative who has no connection to the community.”).

[15] Unif. Partition of Heirs Prop. Act, prefatory note (Unif. L. Comm’n 2010) [hereinafter UPHPA].  The winning bid at the sale is sometimes only a fraction of the land’s real value, thus economically devasting the heirs.  Id

[16] See A.B.A., supra note 11.

[17] Lizzie Presser, Their Family Bought Land One Generation After Slavery. The Reels Brothers Spent Eight Years in Jail for Refusing to Leave It, ProPublica (July 15, 2019),

[18] Reynolds, supra note 8.

[19] UPHPA, supra note 15 (stating that “this Act seeks to remedy the serious problems many of those who own family real property have faced in keeping their property and their wealth as a result of the application of the default rules governing tenancy-in-common property by providing a further set of coherent, default rules reforming the worst substantive and procedural abuses that have arisen in connection with the partition of tenancy-in-common property”).

[20] See Partition of Heirs Property Act, Unif. L. Comm’n, (last visited Apr. 1, 2021).

[21] Id.; see also H.B. 367, 2021 Gen. Assemb., 2021 Sess. (N.C. 2021),

[22] Securing legal title to land requires legal help and action, which many cannot afford.  Laura Bliss, In South Carolina, Hurricane Florence Put the Gullah People’s Way of Life in Peril, Pacific Standard (Sept. 19, 2018),  Additionally, while there is great pro bono work being done, it generally takes a minimum of six months, and sometimes years to find all heirs and clear title.  Id.  With the expedited nature of partition sales, it is imperative that the law afford heirs’ property owners due process rights to secure clear title if their property is at risk of being portioned.  See id.

[23] See A.B.A., supra note 11 (stating the diverse groups of families who have been harmed by heirs’ property ownership and partition laws). 

Post Image by Vanherdehaage on Flickr.

By Sarah E. Page

Pop culture is filled with references to hidden Nazi treasure. Monuments Men tells the story of the real hunt for stolen Nazi art[1] Television channels are rife with shows focusing on the search for hidden Nazi gold around the world.[2] However, one hoard is hidden in plain sight, and is now the subject of a dispute that made it all the way to the Supreme Court of the United States, which, in a decision released Feb. 3, sided with the treasure’s current owners regarding whether the dispute should be decided by U.S. courts.[3]

The collection, currently housed in Berlin’s Kunstgewerbemuseum,[4] is filled with artifacts of immense cultural and monetary value, and includes beautiful, gilded ecclesiastical artifacts such as the Cupola Reliquary, the Guelph Cross, and the Portable Altar of Eilbertus.[5] The beauty of the artifacts hides a long and rich history. Although that history originates in the beginnings of the German church, the conflict that brought the treasure before the Supreme Court is rooted in the beginnings of the Nazi Party’s control over Europe. In 1929, a consortium of Jewish art dealers based in Germany purchased the Guelph Treasure and displayed it around the world.[6] After their rise to power in 1933, the Nazi government began pressuring the group to sell their collection to Prussia, which promptly gifted the treasure to Hitler.[7] However, this transaction was for only a third of the collection’s appraised market value.[8]

The unjustly low price paid over 80 years ago is the cause of the current legal battle. A group of the original Jewish art dealers’ descendants composed of Alan Philipp, a resident of the United Kingdom, and United States residents Gerald Stiebel and Jed Leiber, [9] seek legal recourse for what they allege was an unjust transaction. Before availing themselves of the United States court system, the group first tried to use the Limbach Commission in Germany, which was established in 2003 to consider the fate of Nazi-acquired artifacts with questionable provenance that are currently in government possession.[10]

In that commission hearing, the museum foundation currently holding the collection argued that because the collection was in Amsterdam, and not under German control at the time of the sale, it cannot automatically be presumed that the Jewish art dealers faced pressure and threats from the Nazi Party to sell.[11] Arguably, this assertion failed to consider that one member of the group lived in Germany at the time of the deal, and while the treasure might not have been subject to Nazi control, the man may have felt that his life was in danger.[12] Furthermore, the museum claimed that because the market declined due to the Great Depression, the collection was worth much less at the time it was sold, and therefore the sale price was fair,[13] despite evidence of a letter from a Nazi official to Hitler outlining his intent to purchase the collection for a mere third of its value.[14]

The commission agreed with the museum, and determined that the Guelph Treasure was sold for a reasonable price that was not a result of duress.[15] Thus, the museum, whose deputy director has described the Guelph Treasure as “the highlight, the center, the heart of [their] medieval collection,” was not required to return the artifacts to the descendants of the original dealers.[16]

Understandably displeased, the heirs decided to bring their fight to the United States.[17] Most of their causes of action are straightforward, like replevin, conversion, and unjust enrichment;[18] but the question of whether an American court could actually decide these issues is a jurisdictional quagmire that halted the case’s progress in the U.S.

Both the district court[19] and the D.C. Circuit Court of Appeals[20] determined that the claims surrounding the sale of the Guelph Treasure were connected to the genocide of German Jews during the Holocaust, and therefore the Foreign Sovereign Immunities Act (“FSIA”) would not prevent the United States courts from gaining jurisdiction. But the museum appealed this decision to the Supreme Court, arguing that the FSIA’s expropriation exception should not apply, both because the claims are of a domestic taking, from a German citizen to the German government, and because the principle of international comity would require that American courts refrain from making a decision on a matter with only a tenuous connection to the United States.

Normally, foreign governments are granted sovereign immunity from suits in the United States under the FSIA, but there are a few exceptions.[21] Under the FSIA’s expropriation exception, when a foreign state takes property “in violation of international law,” and “that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States,” then the foreign government is susceptible to suits in the United States regarding the taken property.[22] The museum, of course, does not believe this exception applies.

The museum’s first contention seems to rest on the fact that the actual transaction only involved German parties, that the sale itself did not violate international law, and that the transaction’s connection with the horrors of the Holocaust cannot bring claims surrounding the transaction under the purview of the expropriation exception.[23] The taking itself must violate international law, and historically, that can only happen when the government takes from a foreign national.[24] The heirs of the art dealers argue that the court should consider only the plain text of the law, and as “taken in violation of international law” is not defined within the FSIA statute and not an obvious term of art, it should be interpreted according to its plain meaning.[25] Because genocide is an obvious violation of international law, and the potentially unjust sale of the Guelph Treasure was directly related to the Holocaust genocide, then the sale should render the treasure “taken in violation of international law.”[26]

Although the museum is correct and the sale of the Guelph collection was not genocide, Justice Thomas suggested in oral argument that it is impossible to separate actions taken by the Nazi party against the German Jewish population from the Holocaust.[27] However, despite this incisive comment during argument, Justice Thomas joined in a unanimous decision to vacate the lower courts’ interpretation of the expropriation exception.[28] Writing for the court, Chief Justice Roberts adopted the German museum’s perspective on the FSIA.[29]

Because the rest of the FSIA mentions only property related offenses, the Supreme Court stated that the expropriation exception should not be extrapolated to apply to events surrounding human rights violations.[30] This is because international law governing property tends to abide by the “domestic takings rule,” which holds that a government’s seizure of the property of its own citizen is not a matter governed by international law.[31] The Court articulated that Congress’s intention to allow American courts to intervene only when there is state action against property held by a citizen of another state is obvious because the verbiage used in the FSIA expropriation exception is identical to that of the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964.[32] This amendment dictated that federal courts could intervene in situations in which foreign nations had taken adverse action against the property of a non-citizen, and was passed as a reaction to the former Supreme Court’s reluctance to exercise jurisdiction over the actions of a foreign nation on foreign soil involving an American company’s property.[33] However, Congress did not alter the traditional “domestic takings rule” when it passed the Second Hickenlooper Amendment, and instead left state actions against the property of their own citizens out of the purview of international law.[34] Because the sale of the Guelph Treasure was a transaction between German citizens, there is no invocation of international law, and therefore, there is no possibility that the transactions could have violated international law for the purposes of jurisdiction under the FSIA exception.[35]

However, the Supreme Court did leave one small door open to allow the dealers’ descendants another chance at U.S. jurisdiction. If the dealers were no longer considered German citizens at the time of the transaction due to Germany stripping Jewish Germans of citizenship status, the “domestic takings rule” may not apply.[36] However, the Court declined to address this important factor and sent the issue back to the district court to ascertain whether that issue was properly preserved for appeal.[37]

The museum’s next argument is that the principle of comity should prevent American courts from presiding over these claims because Germany has a system that would adjudicate the claims and because the claims hold significant historical and political implications for Germany.[38] At a basic level, comity is the principle that governments should respect the governmental decisions of foreign states.[39] After asserting comity, the nation of Germany was dismissed as a party to the case, but the museum foundation asserts that this principle should cover them as well.[40] The descendants contend that not only is the museum’s comity argument just a restatement of the forum non conveniens argument that was dismissed earlier and not appealed,[41] but also that discretionary comity would be inappropriate here because the descendants would not be able to recover for their claims in Germany.[42] The Supreme Court artfully avoided stepping on international toes by declining to address this issue and basing the outcome of the case solely on the dispute under the FSIA.[43] Therefore, the issue of comity in similar cases is left for another day.

On one hand, the Supreme Court had a sympathetic set of plaintiffs and extreme, visceral disgust for the atrocities committed by the Nazis during the Holocaust. On the other hand, the Court faced the possibility of overly encroaching on international affairs.[44] Although faced with two very compelling arguments and the competing goals of both preserving international relations and recognizing the injustices inflicted on the German Jews by the Nazis, the Court effectively struck a balance between preserving traditional tenants of international law and recognizing the injustices that faced the art dealers at the time of the sale.[45]

[1] See Monuments Men Found., (last visited Feb. 4, 2021).

[2] See Hunting Nazi Treasure, Nat’l Geographic Channel, (last visited Feb. 4, 2021); Lost Gold of World War II, History, (last visited Feb. 4, 2021); Nazi Gold Train, Travel Channel, (last visited Feb. 4, 2021).

[3] Federal Republic of Germany v. Philipp, No. 19-351, slip op. at 1, 16 (U.S. Feb. 3, 2021),

[4] Hilary McDonnell, An Uncertain Fate for the Guelph Treasure, Hughes Hubbard & Reed (Nov. 11, 2020),

[5] What is the Guelph Treasure?, Stiftung Preußischer Kulturbesitz, (last visited Feb. 4, 2021).

[6] McDonnell, supra note 4.

[7] Id.

[8] Brief for Respondents at 5, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Oct. 22, 2020),

[9] Brief for Petitioners at ii, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020),

[10] Nicholas O’Donnell, Limbach Advisory Commission Recommends Against German Restitution of “Guelph Treasure,” Focuses on Terms of 1929 Agreement for Intended Sale, Sullivan &Worcester: Art L. Rep. (Mar. 26, 2014, 11:54 AM),

[11] Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, N.Y. Times (July 10, 2020),

[12] Schuetze, supra note 11.

[13] O’Donnell, supra note 10.

[14] Brief for Respondents, supra note 8, at 4.

[15] Brief for Petitioners, supra note 9, at 6.

[16] Schuetze, supra note 11 (quoting Lothar Lambacher).

[17] Nicholas O’Donnell, Civil Action Filed Against Germany for Restitution of Guelph Treasure, Sullivan &Worcester: Art L. Rep. (Feb. 24, 2015, 12:27 AM),

[18] Joint Appendix at 125–26, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020),

[19] Philipp v. Federal Republic of Germany, 248 F. Supp. 3d 59, 70–72 (D.D.C. 2017), aff’d, 894 F.3d 406 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021),

[20] Philipp v. Federal Republic of Germany, 894 F.3d 406, 410–413 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021),  

[21] Amy Howe, Argument Preview: Pleading Standards and the “Expropriation” Exception to the FSIA, SCOTUSblog (Oct. 27, 2016, 2:10 PM),

[22] 28 U.S.C. §1605(a)(3),

[23] Brief for Petitioners, supra note 9, at 16–18.

[24] Id. at 22–26.

[25] Brief for Respondents, supra note 8, at 11–12.

[26] Id. at 12–13.

[27] Coleman Sanders, Summary: Supreme Court Oral Argument in Federal Republic of Germany v. Philipp, Lawfare (Jan. 12, 2021, 1:19 PM),

[28] Philipp, slip op. at 15–16.

[29] Id. at 1, 7.

[30] Id. at 4–5.

[31] Id. at 4–6.

[32] Id. at 7–8; see also 22 U.S.C. § 2370(e)(2).

[33] Philipp, slip op. at 7–8; § 2370(e)(2).

[34] Philipp, slip op. at 7.

[35] Id. at 8.

[36] Brief for Respondents, supra note 8, at 27.

[37] Philipp, slip op. at 16.

[38] McDonnell, supra note 4.

[39] Brief for Respondents, supra note 8, at 9–10.

[40] Id. at 10.

[41] Id. at 43.

[42] Id. at 54–55.

[43] Philipp, slip op. at 15–16.

[44] Brief for Petitioners, supra note 9, at 49–50.

[45] Philipp, slip op. at 13 (hinting at potential retaliation if an American court claimed jurisdiction over these claims).

Post image of the Cupola Reliquary, courtesy Kunstgewerbemuseum. Photo by Fabian Frohlich.

Oil Pumps

By Daniel Stratton

Today, the Fourth Circuit issued a published opinion in the civil case K & D Holdings, LLC v. Equitrans, L.P. In K & D Holdings, the court held that an oil and gas lease granted to defendants, Equitrans and EQT, by plaintiff, K & D Holdings, was not divisible into separate components. In reaching that conclusion, the court reversed and remanded the case to the district court with instructions to enter judgment in favor of Equitrans and EQT.

The Terms of the Original Lease

In December 1989, Henry Wallace and Sylvia Wallace signed a lease granting Equitrans the oil and gas rights to an area of land covering 180 acres in Tyler County, West Virginia. Currently, K & D is the successor in interest to the Wallaces. Additionally, Equitrans L.P., the successor-in-interest to Equitrans Corp., subleased the rights to produce and store gas on the land to EQT Corp. Essentially, the terms of the lease now govern a relationship between K & D and EQT.

The terms of the lease grant EQT the right to use the land to explore and produce oil and gas, store gas, and protect stored gas. The lease’s initial term ran for five years and would continue on for as long as a portion of the land was used for “exploration or production of gas or oil, or as gas or oil is found in paying quantities thereon or stored thereunder, or as long as said land is used for the storage of gas or the protection of gas storage on lands in the general vicinity.” After taking control of the land, EQT never engaged in exploration, production, or gas storage, but has engaged in gas storage protection.  Equitrans owns the nearby Shirley Storage Field, a natural gas storage facility. The Federal Energy Regulatory Commission established a buffer zone of 2000 feet around the storage area for protection of the storage facility. The leased land falls within that buffer zone.

Due to EQT and Equitrans not using the leased land for gas or oil production, K & D sought to end the arrangement and enter into a more lucrative contract with another company. On September 20, 2013, K & D filed a lawsuit in state court against EQT, arguing that it was entitled to a rebuttable presumption under West Virginia state law that EQT had abandoned the land after not producing or selling gas or oil from the property for more than twenty-four months. EQT removed to the United States District Court for the Northern District of West Virginia. EQT and K & D filed cross motions for summary judgment.

On September 30, 2014, the court denied both cross motions. Acting sua sponte, the district court found as a matter of law that the lease was divisible. The court argued that because the lease had two primary purposes, (1) exploration and production and (2) storage and protection, the lease could be divided into two separate leases. The lease for exploration and production of oil and gas had expired in the district court’s view, because the initial five-year term had elapsed without EQT exploring for or producing oil or gas. The court held however, that the second lease, for storage and protection, was still in force because EQT had used the land for that purpose.

On January 21, 2015, the district court issued its final order, stating that K & D was entitled to drill exploration and production wells in areas that were not within the buffer zone of the Shirley Storage Field. EQT appealed.

West Virginia is for Lessors

Because this case was heard under diversity jurisdiction, West Virginia state law applies. Under West Virginia law, contract law principles apply equally to the interpretation of leases. The primary criterion for determining if a contract is severable is whether such an intention was reflected by the parties in the terms of the contract itself, the subject matter of the contract, and the circumstances giving rise the question.  A contract is not severable when it has material provisions and considerations that are interdependent and common to each other. Additionally, under West Virginia state law, there is a presumption against divisibility unless the contract explicitly states that it is divisible or the parties intent of divisibility is clearly manifested. As a general matter, West Virginia law regarding oil and gas leases are liberally construed in favor of the lessor, but only when there is ambiguity as to the lease terms.

A Lease Divisible Cannot Stand

On appeal, EQT made two arguments. First, it argued that the district court erred as a matter of law in holding the lease divisible. Second, EQT contended that the district court was wrong in determining that the exploration portion of the lease had terminated after its initial five-year term. Reviewing the district court’s findings of fact for clear error and its conclusions of law de novo, the Fourth Circuit agreed with both of EQT’s arguments.

Starting with its first argument, EQT pointed to the language of the lease itself. The lease’s use of the word “or” between each act required of EQT in order to continue the lease indicated that the acts were alternatives, and that only one would be required to keep the entire lease in effect. Applying West Virginia’s test for determining if a contract is severable, the Fourth Circuit concluded that the lease was intended to be entire and not divisible.  The Fourth Circuit applied the plain, ordinary meaning of the word “or,” holding that in this case it was a disjunctive and could not be considered to have the same meaning as the word “and.”

K & D argued that because EQT paid different rents depending on what activities it was engaging in, the lease was divisible. The court found this argument to not be persuasive, noting that the activities EQT could engage in under the lease were interrelated. Additionally, because the Fourth Circuit found no ambiguity in the lease, it did not need to liberally interpret in favor of the lessor.

Having decided that the lease was not divisible, the court then turned to the question of whether EQT had continuing rights under the lease. The terms of the lease dealing with renewal stated that the lease would continue beyond the initial five-year term if “(1) the lessee explores for or produces gas or oil; (2) ‘gas or oil is found in paying quantities thereon or stored thereunder’; or (3) the ‘land is used for the storage of gas or the protection of gas storage on lands in the general vicinity.” Again noting the use of the disjunctive “or,” the court found that because it was undisputed that part of the land was being used for protection, EQT continued to hold all rights under the original lease.

The Fourth Circuit Hold the Lease is Not Divisible and Valid; Reverses and Remands 

Having determined that the lease was not divisible and that EQT still held all rights under the original lease, the Fourth Circuit reversed and remanded the lower court’s decision, instructing that court to enter judgement in favor of EQT and Equitrans.

By Dan Menken

Today, in the civil case of Covey v. Assessor of Ohio County, a published opinion, the Fourth Circuit reversed the district court’s dismissal of Christopher and Lela Covey’s suit against government officials for entering the curtilage of their house without a search warrant.

Question of Fourth Amendment Protection From Unreasonable Government Intrusion

The Court was asked to decide whether government officials violated the Coveys’ Fourth Amendment right to protection from unreasonable government intrusion when the government officials entered the curtilage of the Covey’s home in search of marijuana without a warrant.

Government Tax Assessor Relayed Information to Police Regarding Marijuana Plants

On October 21, 2009, a field deputy for the tax assessor of Ohio County, West Virginia, entered the Covey’s property to collect data to assess the value of the property for tax purposes. The tax assessor entered the Covey’s property despite seeing “No Trespassing” signs, which is against West Virginia law. When searching the property, the tax assessor found marijuana in the Covey’s walk-out basement patio. The tax assessor then contacted the police.

When the police arrived, they entered the curtilage of the Covey’s residence and proceeded to the area where the marijuana was located. As they were searching the property they encountered Mr. Covey. The officers detained Mr. Covey and continued their search. The officers then waited several hours to obtain a warrant to search the house. During that time, Mrs. Covey returned home and was warned that she would be arrested if she entered the house, after which she left the premises. Upon returning an hour later, Mrs. Covey was seized and interrogated. After the police received the search warrant, the Coveys were arrested and jailed overnight.

On March 30, 2010, Mr. Covey pleaded guilty in state court to manufacturing marijuana in exchange for the government’s promise that they would not initiate prosecution against Mrs. Covey. He was sentenced to home confinement for a period of not less than one year and not more than five years. On October 20, 2011, the Coveys brought this suit pro se. The claims, brought under 42 U.S.C. § 1983 and Bivens, alleged that several defendants violated the Coveys’ Fourth Amendment rights by conducting an unreasonable search. The district court dismissed the Coveys’ claim concluding that none of the defendants violated the Fourth Amendment. This appeal followed.

Fourth Amendment Protects Curtilage of Home

The Court reviewed the district court’s grant of a motion to dismiss de novo. To prevail on a motion to dismiss, a plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal. A claim is plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

According to Oliver v. United States (1984), the Fourth Amendment protects homes and the “land immediately surrounding and associated” with homes, known as curtilage, from unreasonable government intrusions. Probable cause is the appropriate standard for searches of the curtilage and warrantless searches of curtilage is unreasonable.   The knock-and-talk exception to the Fourth Amendment’s warrant requirement allows an officer, without a warrant, to approach a home and knock on the door, just as any ordinary citizen could do. An officer may bypass the front door when circumstances reasonably indicate the officer might find the homeowner elsewhere on the property. The right to knock and talk does not entail a right to conduct a general investigation on a home’s curtilage.

The Complaint Presented Plausible Claims For Violations of the Fourth Amendment

Properly construed in the Coveys’ favor, the complaint alleges that the officers saw Mr. Covey only after they entered the curtilage. Thus, applying the Rule 12(b)(6) standard, the Court found that the Coveys plausibly alleged that the officers violated their Fourth Amendment rights by entering and searching the curtilage of their home without warrant. The district court erred by accepting the officers account of events, in which they stated that they saw Mr. Covey prior to entering the curtilage.

Turning to the tax assessor, the Court believed that his entering of the property, although illegal, was not a per se violation of the Fourth Amendment. In this case, the Court believed that the governmental interest in the search for tax purposes was minimal, while the Covey’s privacy interest is significant. Therefore, the Fourth Circuit held that the Coveys pleaded a plausible claim that the tax assessor conducted an unreasonable search of their home and curtilage.

Defendants’ Affirmative Defenses

According to Ashcroft v. al-Kidd (2011) qualified immunity “shields federal and state officials form money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct. As to the police officers, the Court stated that they should be aware that a warrantless search of the home, absent consent or exigency, is presumptively unconstitutional. Additionally, the Court noted that Fourth Circuit has, for over a decade, recognized that the curtilage of the home is entitled to Fourth Amendment protection. The Court felt that the tax assessor presented a closer case. Because there was no case law that spoke to a similar set of facts, and the tax assessor should have been aware that he was violating a Constitutional right by searching the property, the Court ruled that the tax assessor was not entitled to qualified immunity.

Finally, the defendants claimed that the Coveys’ § 1983 and Bivens claims are barred by Heck v. Humphrey (1994). There are two requirements for Heck to bar the Coveys’ claims. First, “a judgment in favor of the plaintiff [must] necessarily imply the invalidity of [a plaintiff’s] conviction or sentence.” Second, the claim must be brought by a claimant who is either (i) currently in custody or (ii) no longer in custody because the sentence has been served, but nevertheless could have practicably sought habeas relief while in custody. The court concluded that Mr. Covey’s claims did not necessarily imply the invalidity of his conviction and thus are not necessarily barred by Heck. The Court remanded the district court for further analysis under Heck.

Reversed and Remanded

Thus, the Fourth Circuit reversed the district court’s grant of dismissal and remanded the case for further proceedings.