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Archive for January, 2012

Today, if a first-rate attorney can add 10 percent to the probability of getting a favorable decision on a regulatory ruling worth hundreds of millions of dollars, he is worth his many-hundreds-of-dollars-per-hour rate. If he can work out the multidimensional issues that enable the merger of two large corporations, he may be worth a commission of millions of dollars.

Charles Murray, Coming Apart: The State of White America, 1960-2010.

Does legal education help here? How?

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Today is the Feast of St. John Bosco (Don Bosco). He was a remarkable man. In honor of his feast, here is an instrumental rendition of Friend of the Young and the Poor, a song by Fr. Stephen Schenck, SDB.

You were the light in the dark for the young who could not see

And you were a spark for the young to become all they could be

Help us all come to be all that God calls us to be

We will send the message

We will be the witnesses that you, Don Bosco, are the friend of the young and the poor

Lead us safely through the storm to the heavenly shore

 

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A divided panel of the Fourth Circuit held today in Prudencio v. Holder that the framework used by federal immigration judges to decide whether an individual has previously been convicted of a crime of moral turpitude is unauthorized because in conflict with the relevant provisions of the Immigration and Nationality Act. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd penned a vigorous dissent.

The decision defies easy summary, but the dispute is an important one. Here is how Judge Shedd’s dissent begins:

The categorical approach adopted by the majority is a doctrine created by the judicial branch to address issues of concern to the judicial branch—protection of Sixth Amendment rights and efficient use of judicial resources. Although an agency may choose to adopt some version of this approach, there is no  requirement to expand this difficult, almost unworkable, limiting analysis to an agency, especially in the immigration context, and I would not do so.

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The Fourth Circuit today unanimously affirmed a grant of summary judgment in favor of the United States on the claim of activist photojournalist Isis for money damages under the Privacy Protection Act. Chief Judge Traxler wrote the published opinion in Sennett v. United States, which was joined in by Judge Motz and Judge Keenan.

The claim arises out of a lawless protest by anti-IMF activists at the Four Seasons hotel in Washington D.C. in 2008. Isis asserts that she went to the hotel around 2:30 a.m. one morning after receiving an anonymous tip about an impending demonstration. She proceeded to video a protest in the hotel lobby that involved firecrackers, smoke-generating pyrotechnic devices, and paint-filled balloons, causing more than $200,000 in property damage. The police tracked her down, searched her residence, and hauled away a lot of her gear. She never was charged with a crime. She sued under the Privacy Protection Act and lost on summary judgment. The Fourth Circuit affirmed. The decision involves an extended analysis of the “suspect exception” in the PPA.

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Having attended yesterday’s oral argument in the Fourth Circuit’s en banc consideration of Al-Quraishi v. L-3 Servs. Inc. and Al Shimari v. CACI Int’l Inc., I am now wading a little more deeply into the issues.

The D.C. Circuit’s decision in Saleh v. Titan Corp. involved similar claims to those asserted in the cases being considered by the Fourth Circuit. In reviewing that decision, I came across the statement in Judge Garland’s dissent that supplies the title for this post: “To deny preemption is not to grant plaintiffs free reign.”

Judge Garland must have meant “rein” instead of “reign.” But the mix-up is instructive. By asserting state tort law against contractors acting abroad under the control and direction of the U.S. military, authorizing discovery would be extending the “reign” of some other sovereign against the federal government’s chosen helpers in a war zone.

Judge Garland is right that this “reign” would not be “free.” The district court would hold the reins and govern the case based on the court’s perception of the relevant interests. But the appropriate question seems to be not simply how tight a rein the court may hold, but whether the horse should leave the starting gate at all.

(Note: Judge Garland may not be wrong, but rather avant-garde (instead of old guard) in his use of language. According to this Google Ngram, his chosen usage appears to be gaining in popularity while the conventional usage is running flat after something of a decline.)

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The Fourth Circuit, sitting en banc, heard oral arguments this morning in two cases asserting civil damages claims against military contractors for their activities at Abu Ghraib and other locations in the Iraq war zone. (A short write-up of the now-vacated panel decisions is available here, and more extensive  pre-argument discussions of various issues arising out of the panel opinions can be found at Lawfare here, here, here, and here.)

I attended the argument and came away with some (admittedly impressionistic) impressions that might be of interest to those following the cases who could not make it to Richmond for the argument:

- Almost all of the argument and questioning focused on whether the appellate court had jurisdiction. There was some discussion of the correctness (or not) of the D.C. Circuit’s decision in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), dismissing similar claims under a form of “battlefield preemption.” But most of that discussion was about the proper characterization of the doctrine: Is preemption the right way to think about the doctrine, or is it closer to an immunity? And there was much discussion of whether the contractors had a substantial claim to derivative immunity.

- Given how the argument went, it would be surprising if the court were to conclude both (1) that it has jurisdiction, and (2) that the district court properly ruled in allowing the claims against the contractors to go forward. If the Fourth Circuit concludes that it has appellate jurisdiction, the merits of the ruling are likely to be in the contractors’ favor.

- BUT it is difficult to make any confident predictions given that several of the judges either did not ask any questions or asked only one or two, leaving little to observe about their case-specific inclinations.

- Judge Niemeyer and Judge Shedd, responsible for the panel opinions, mounted vigorous questioning designed to show that a remand for discovery was not only unnecessary but also would defeat the very interests to be protected by the immunity doctrine whose applicability they needed to decide, as well as undermining some of the federal interests protected by the preemption doctrine at issue. Judge Wilkinson’s questioning revealed him to be aligned with Judge Niemeyer and Judge King on these issues.

- Judge King, author of the panel dissents, led the questioning for the jurisdictional skeptics. At various times, questions by Judge Wynn, and to a lesser extent by Judge Gregory, Judge Motz, and Judge Davis, revealed likely alignment with Judge King on this point.

- Judge Duncan asked a couple of questions that appeared to be aimed at some sort of middle ground that would allow the Fourth Circuit to dismiss for lack of appellate jurisdiction but still provide guidance to the district court that, on remand, it needs to give more weight to the federal interests threatened by further litigation of these claims. But Judge Wilkinson asked a question suggesting that, if the Fourth Circuit dismisses for lack of jurisdiction, the Fourth Circuit risks taking itself out of involvement until after trial.

- Some of the judges appeared receptive to a remand for lack of jurisdiction under the collateral order doctrine (the appellant’s theory of jurisdiction) with strong suggestions to the district court that it certify an interlocutory appeal under 1292(b). Judge Motz suggested that upholding jurisdiction under the collateral order doctrine would create a circuit split. Earlier in the argument, Judge Motz observed that the Supreme Court’s refusal to allow expansion of the collateral order doctrine was analogous to its treatment of Bivens claims.

- The federal government had a rough day. At the court’s invitation, the federal government had filed an amicus brief. (See here for Steve Vladeck’s summary of the government’s brief.) Counsel for the government, Thomas Byron, had an excellent presence and remained poised and articulate throughout. But the court was clearly not enamored with the federal government’s seeming attempt to have things both ways. When counsel for the government began with a customary expression of pleasure at the opportunity to appear at the invitation of the court, Judge Motz noted that she was “surprised” to hear that given that the brief filed by the government was “equivocal” about the issues. Later on, Judge Wilkinson said that he agreed with Judge Motz, that he thought the government was offering the “most obscure, equivocal kind of presentation . . . .” Judge Motz then interjected that she didn’t say quite that, and Judge Shedd (I think) stated something along the lines of “it sure sounded like that over here.” (Note: It’s hard to convey a flavor of how this all went over in the courtroom, so it’s probably worthwhile for those interested to listen to the recording of oral argument when it is available next week.) Although Judge Motz dissociated herself from some of the more strongly negative characterizations of the government’s position offered by Judge Wilkinson, it seemed that even at the end of argument, Judge Motz was not completely satisfied with the government’s argument. This was apparent from a question she asked about the government’s understanding of Dow v. Johnson, 100 U.S. 158 (1879), which involves the non-susceptibility of military actors to answer in civil tribunals for actions in warfare. She asked government counsel, somewhat skeptically, to explain the following statement from the government’s brief: “Dow and the policies it reflects may well inform the ultimate disposition of these claims. But we are not prepared at this point to conclude that the contractor defendants have demonstrated a right to immediate review of their contentions based on Dow alone.”

- Notwithstanding the difficulties faced by the federal government, it is conceivable that something close to the federal government’s position with respect to jurisdiction could prevail, leading to another interlocutory appeal not too far down the road. As previously noted, however, it is difficult to make any confident predictions given the sheer number of judges (14) and the limited amount of information that can be gleaned from the contents of questions.

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The Fourth Circuit yesterday released an unpublished per curiam opinion in United States v. Stallworth affirming the life sentences of two individuals convicted of participating in a drug-trafficking conspiracy after having two prior felony drug convictions. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Agee.

According to the opinion, the conspiracy “would purchase a kilogram of cocaine for around $25,000 and then would cook it into crack cocaine, which members were able to sell for between $36,000 and $42,000.” If these numbers are accurate, they are surprising. For an activity that carries such serious consequences, one would expect the profit margin to be higher.

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The Fourth Circuit’s unanimous opinion today in United States v. Strieper affirms the imposition of two sentencing enhancements on attempted enticement and child pornography charges. Judge Floyd wrote the opinion, in which Chief Judge Traxler and Judge Shedd joined.

Among the issues discussed is whether one can attempt to entice without having identified a particular minor to entice. The panel believed so:

At oral argument, Strieper also suggested that there must be an identifiable victim to constitute an attempt. This argument did not appear in Strieper’s brief, and as such, it is waived. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). In addition, this position lacks merit, as it is well established that attempt requires only the requisite intent to commit the crime and a substantial step toward its commission. United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). So long as these elements are satisfied, no identified victim is necessary. Indeed, as we noted at oral argument, if two individuals intending to rob a bank start out with all accoutrements necessary for a robbery and agree simply to rob the first bank they happen upon rather than identifying a specific bank ahead of time, we could still conclude that the individuals had attempted to commit robbery.

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The dueling opinions in today’s Fourth Circuit decision in Bullock v. Napolitano address whether Title VII waives the sovereign immunity of the United States to a damages suit in state court by authorizing suit in federal court.

By a 2-1 vote, the Fourth Circuit answered this question in the negative. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Judge Gregory dissented.

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A Fourth Circuit panel ruled unanimously today that the government must prove a reasonable fit between the ban on firearm possession by an unlawful user of a controlled substance and the objective of reducing gun violence. Judge Niemeyer wrote the opinion in United States v. Carter, which was joined in by Judge Diaz and Senior Judge Hamilton.

According to the opinion, every other circuit to address the issue has held that the ban in 18 U.S.C. § 922(g)(3) satisfies intermediate scrutiny. But the Fourth Circuit could not go along with this because the government had not borne its “burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence”:

Without pointing to any study, empirical data, or legislative findings, [the government] merely argued to the district court that the fit was a matter of common sense. In view of our decisions in Chester and Staten [which require "tangible evidence" rather than "unsupported intuitions"], we therefore remand this issue to the district court to allow the government to develop a record sufficient to justify its argument that drug users and addicts possessing firearms are sufficiently dangerous to require disarming them.

The opinion goes on to note that “[t]his burden should not be difficult to satisfy in this case, as the government has already asserted in argument several risks of danger from mixing drugs and guns.”

Another feature worth noting about the decision is that it assumes, without deciding, that unlawful drug users have the same Second Amendment rights as law-abiding citizens. The following paragraphs of the opinion set forth the current state of the law on this issue in the Fourth Circuit:

We first applied Heller in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), where we adopted—as had been adopted by two other circuits, United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), rev’d 614 F.3d 638 (7th Cir. 2010) (en banc)—a two-step approach for evaluating a statute under the Second Amendment. First, we inquire whether the statute in question “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” 628 F.3d at 680. And second, if the statute burdens such protected conduct, we apply “an appropriate form of means-end scrutiny.” Id. Following this approach, we now proceed to evaluate Carter’s constitutional challenge to § 922(g)(3).

Under the first step, we have three times deferred reaching any conclusion about the scope of the Second Amendment’s protection. In Chester, the government did not attempt to argue that domestic violence misdemeanants, who were prohibited by § 922(g)(9) from possessing a firearm, categorically fell outside the historical scope of the Second Amendment. Accordingly, we assumed, without deciding, that the misdemeanants there were entitled to some measure of constitutional protection and proceeded to the second step of applying an appropriate form of means-end scrutiny. See Chester, 628 F.3d at 680-82. In Masciandaro, the government did argue that possession of firearms in a national park should receive no Second Amendment protection whatsoever. See Masciandaro, 638 F.3d at 471. Nonetheless, we again did not decide the question because even if the defendant there had rights protected by the Second Amendment, the government would prevail under the intermediate scrutiny test that we applied. See id. at 473. And most recently in United States v. Staten, ___ F.3d ___, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), we assumed but did not decide that the defendant had rights under the Second Amendment and rejected his constitutional challenge under the second step, applying intermediate scrutiny. Id. at *5.

In this case, as in Masciandaro, the government contends that dangerous and non-law-abiding citizens are categorically excluded from the historical scope of the Anglo-American right to bear arms. But again we will assume that Carter’s circumstances implicate the Second Amendment because all courts that have addressed the constitutionality of § 922(g)(3) have upheld the statute, see, e.g., United States v. Dugan, 657 F.3d 998 (9th Cir. 2011); United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919 (8th Cir. 2010); United States v. Patterson, 431 F.3d 832 (5th Cir. 2005); United States v. Richard, 350 F. App’x 252 (10th Cir. 2009), and our remand in this case is to afford the government the opportunity to substantiate the record and Carter the opportunity to respond. If we ultimately conclude that step two cannot be satisfied, we will need to address the government’s argument under step one.

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The Fourth Circuit today unanimously affirmed the dismissal of a damages claim brought against several high-ranking government officials by Jose Padilla and his mother, Estela Lebron. Judge Wilkinson authored the opinion in Lebron v. Rumsfeld, in which Judge Motz and Judge Duncan joined.

Ken Anderson of The Volokh Conspiracy has flagged some early critical commentary by Steve Vladeck has some early critical commentary at Lawfare, which will be the best one-stop destination for quick expert analyses of the decision. I have not yet read Judge Wilkinson’s opinion in full, but the outcome is entirely unsurprising under existing law. I assume that parts would have been written differently if Judge Motz or Judge Duncan had written the opinion, but the unanimity of that particular three-judge panel is a strong indicator that the proposed Bivens action never had a chance.

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The Supreme Court granted a motion last week to add two individuals to the case it will hear addressing the constitutionality of the minimum essential coverage provision in the Affordable Care Act. (See Lyle Denniston’s post on the order at SCOTUSBlog.) This makes it less likely that the Court will need to reach the question whether the States can bring a justiciable challenge to that provision, which imposes obligations on individuals but not on States. That is all for the good, as the States do not have standing.

In the course of reading on an unrelated subject, I came across the following quotation that I thought worth passing along:

If Congress passes a law which exceeds the powers granted to it, the States–now that the doctrine of nullification is dead–do not raise the question of constitutionality, and contend with the national government, but the law goes quietly into the statute-book, and any person who feels aggrieved by it brings it before the courts, as he would the by-law of a railroad company the validity of which he wanted to test.

1 A. Lawrence Lowell, Essays on Government 104 (1890).

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The Fourth Circuit’s decision yesterday in United States v. Ramos-Cruz held that the government’s withholding from the defense of the actual names of two prosecution witnesses did not violate the Confrontation Clause in the Sixth Amendment. Judge Duncan wrote the opinion for the court, in which Judge Niemeyer joined. Judge Floyd concurred in the judgment, reasoning that the use of pseudonymous witnesses violated the Sixth Amendment, but that the constitutional violation was harmless error.

For criminal proceduralists, Judge Floyd’s dissent in this case looks like a must-read opinion. Some excerpts:

I do not take lightly the safety concerns accompanying the decisions made by Juan Diaz and Jose Perez—the two witnesses who testified using pseudonyms—to testify against Ramos-Cruz. As the record reflects, MS-13 has demonstrated its willingness to engage in violent reprisal against witnesses who testify against its members. There is no denying that by agreeing to testify against Ramos-Cruz, Diaz and Perez exposed themselves to danger. Most assuredly, requiring them to state their true names in open court would have made it easier for MS-13 to target them and their families. Safety concerns were thus real and valid.

We must recognize, however, that these concerns inhere in many prosecutions of defendants who are members of violent criminal organizations. The sad truth is that, in this respect, the situation presented in today’s case is not rare. Gangs often employ violence as a means of intimidating witnesses. Laura Perry, Note, What’s in a Name?, 46 Am. Crim. L. Rev. 1563, 1580 (2009); Joan Comparet-Cassani, Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation: The Waiver Doctrine After Alvarado, 39 San Diego L. Rev. 1165, 1194-96 (2002). Witness intimidation is a serious problem of an alarming magnitude, and it plagues many of our communities. See Alvarado, 5 P.3d at 222 & n.14; Comparet-Cassani, supra, at 1194-204. As a result, the prosecution of members of violent gangs—such as this prosecution of Ramos-Cruz—will often trigger safety concerns for many of the witnesses involved.

Nevertheless, in addressing these concerns, we cannot undermine our constitutional commitment to ensuring that criminal defendants, even those accused of belonging to violent criminal organizations, receive a fair trial. That means they must be allowed to rigorously test the government’s evidence, including all of its witnesses, in an adversarial proceeding before a jury. See Craig, 497 U.S. at 845; See Strickland v. Washington, 466 U.S. 668, 685 (1984). I am unconvinced that they are able to do so if the government can completely withhold the true names of its witnesses throughout the trial.

Access to the true names of the government’s witnesses is critical to ensuring that a criminal defendant is able to rigorously test their testimony in an adversarial manner. As noted, effective cross-examination often entails challenging the witness’s credibility. Hence, the opportunity for effective cross-examination, which the Sixth Amendment guarantees, includes the opportunity to challenge the witness’s credibility. See Van Arsdall, 475 U.S. at 679-80. But without a government witness’s true name, the criminal defendant is unable to perform the type of investigation—whether in court or out of court—necessary to be able to challenge his credibility. See Smith, 390 U.S. at 131. The criminal defendant cannot explore the witness’s background and qualifications to discover any facts that might reflect poorly on his credibility. See Alvarado, 5 P.3d at 221. In effect, denying a criminal defendant knowledge of the true names of the government’s witnesses severely inhibits his ability to perform what is often the most potent aspect of effective cross-examination: impeachment. In my opinion, because completely forbidding a criminal defendant from learning a witness’s true name prevents the opportunity for effective cross-examination, it denies the defendant a fundamental aspect of a fair trial.

My concerns with completely denying criminal defendants access to the true names of the witnesses testifying against them extend beyond practical consequences. Allowing the use of anonymous witnesses also undermines the perception that our criminal trials are open and even contests. Instead, it creates the impression that our criminal trials contain clandestine aspects that operate to provide the government with an upper hand. It does so by suggesting that convictions can be “based on the charges of . . . unknown—and hence unchallengeable—individuals,” Lee, 476 U.S. at 540, even if they can be physically seen. Simply put, obtaining a conviction by using anonymous witnesses appears eerie and covert, and does not inspire confidence in the promise that our criminal trials are open and even endeavors.

Interestingly, the majority opinion does not directly address the bulk of Judge Floyd’s constitutional arguments on their merits, but largely defers to the court’s prior unpublished opinion in United States v. Zelaya addressing the propriety of these witnesses’ testimony in a different case. Although Judge Floyd ultimately concurred in the judgment because he held that the Sixth Amendment error was harmless, I would not be surprised to see the Fourth Circuit decide to consider this issue en banc.

The majority opinion also discusses the standard of review for allegedly erroneous jury instructions (including a detailed discussion of harmless error) and the elements of the federal witness-tampering statute. Read the whole thing.

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The Fourth Circuit today affirmed the denial of discovery on a selective prosecution claim related to Project Exile, a federal-state partnership that targets convicted felons in possession of firearms in the Richmond, Virginia metropolitan area. Judge Duncan wrote the opinion in United States v. Venable, in which Judge Niemeyer and Judge King joined.

The opinion begins as follows:

Appellant James Venable was indicted by the United States Attorney’s Office for the Eastern District of Virginia (“United States Attorney’s Office”) on the charge of possessing a firearm while being a felon, in violation of 18 U.S.C. § 922(g)(1). Venable, an African American, moved to dismiss the indictment against him, claiming that the United States Attorney’s Office selected him for prosecution under a federal-state law enforcement initiative known as Project Exile because of his race, in violation of the equal protection component of the Fifth Amendment’s Due Process Clause. As part of the motion, Venable sought discovery into the criteria and procedures used by the government in deciding to prosecute him in federal court while two other individuals, both white, who were also felons in possession of the same firearms as him, were not. The district court concluded that Venable had failed to satisfy his rigorous burden to obtain discovery on his selective prosecution claim. On appeal, Venable requests that we reverse the district court’s order denying his motion for discovery and remand this case for discovery and an evidentiary hearing. For the reasons that follow, we affirm.

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The Fourth Circuit today issued two published opinions on Monday in argued cases. Both were unanimous affirmances.

In Hennis v. Hemlick, the Fourth Circuit affirmed the district court’s dismissal without prejudice of a writ of habeas corpus challenging the United States Army’s exercise of court-martial jurisdiction. The district court’s decision was based on Councilman abstention, which takes its name from Schlesinger v. Councilman, 420 U.S. 738 (1975). The Supreme Court held in Councilman that federal courts generally should not get involved in matters that are still working their way through the military justice system.

While serving as an enlisted Army soldier in 1986, Hennis was convicted of one count of rape and three counts of murder. The Supreme Court of North Carolina reversed his conviction. Hennis was acquitted in a retrial in April 1989. He was issued a discharge from the Army on June 12, 1989, re-enlisted one day later, and retired from the Army in 2004. A cold case review by North Carolina authorities matched DNA from Hennis to the woman that he had previously been tried for raping and murdering. The Army recalled Hennis to active duty and began court martial proceedings. Hennis petitioned in federal court for a writ of habeas corpus on the ground that the Army lacked jurisdiction to court marital him for conduct that occurred before his re-enlistment on June 13, 1989. The district court abstained under Councilman, and in this decision, the Fourth Circuit affirmed the district court’s decision to abstain. Judge Wynn wrote the opinion, in which Judge King and Judge Gregory concurred.

The second case from yesterday, United States v. Winfield, addressed the authority of a district court to impose a second sentence for violations of supervised release after effectively revoking supervised release and imposing a prison sentence in a prior hearing. The panel opinion, written by Judge Gregory and joined in by Judge Shedd and Judge Davis, affirms the district court’s sentence.

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It is to be observed, that the supreme court has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature. The latter can no more deprive the former of this right, than either of them, or both of them together, can take from the president, with the advice of the senate, the power of making treaties, or appointing ambassadors.

In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed, by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers. This appears evident from this consideration, that if the legislature pass laws, which, in the judgment of the court, they are not authorised to do by the constitution, the court will not take notice of them; for it will not be denied, that the constitution is the highest or supreme law. And the courts are vested with the supreme and uncontroulable power, to determine, in all cases that come before them, what the constitution means; they cannot, therefore, execute a law, which, in their judgment, opposes the constitution, unless we can suppose they can make a superior law give way to an inferior. The legislature, therefore, will not go over the limits by which the courts may adjudge they are confined. And there is little room to doubt but that they will come up to those bounds, as often as occasion and opportunity may offer, and they may judge it proper to do it. For as on the one hand, they will not readily pass laws which they know the courts will not execute, so on the other, we may be sure they will not scruple to pass such as they know they will give effect, as often as they may judge it proper.

From these observations it appears, that the judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers.

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[I]t is difficult to conceive how the state legislatures can, in any case, hold a check over the general legislature, in a constitutional way. The latter has, in every instance to which their powers extend, complete controul over the former. The state legislatures can, in no case, by law, resolution, or otherwise, of right, prevent or impede the general government, from enacting any law, or executing it, which this constitution authorizes them to enact or execute. If then the state legislatures check the general legislatures [sic], it must be by exciting the people to resist constitutional laws. In this way every individual, or every body of men, may check any government, in proportion to the influence they may have over the body of the people. But such kinds of checks as these, though they sometimes correct the abuses of government, oftner destroy all government.

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The Fourth Circuit has released an order in Perry v. Judd unanimously denying Rick Perry’s emergency motion for injunctive relief in his fight to get on the Virginia ballot. The panel issuing the order consisted of Judge Wilkinson, Judge Agee, and Judge Diaz. Given the timeline for printing ballots, this is the end of the road as a practical matter. The only step left is an emergency request to Chief Justice Roberts, in his capacity as Circuit Justice for the Fourth Circuit. Such a request would almost certainly be denied.

Some language from the opening (describing Perry as Movant, as it was his motion):

Movant had every opportunity to challenge the various Virginia ballot requirements at a time when the challenge would  not have created the disruption that this last-minute lawsuit has. Movant’s request contravenes repeated Supreme Court  admonitions that federal judicial bodies not upend the orderly progression of state electoral processes at the eleventh hour.  Movant knew long before now the requirements of Virginia’s  election laws. There was no failure of notice. The requirements have been on the books for years. If we were to grant the requested relief, we would encourage candidates for President who knew the requirements and failed to satisfy them to seek at a tardy and belated hour to change the rules of the game. This would not be fair to the states or to other candidates who did comply with the prescribed processes in a timely manner and it would throw the presidential nominating process into added turmoil.

[UPDATE: The decision rests entirely on laches, after emphasizing that mandatory preliminary injunctive relief (to alter rather than maintain the status quo) "is disfavored, and warranted only the most extraordinary circumstances." The order reasons that Perry's First Amendment challenge to the residency requirement for petition circulators was ripe as of the day that he officially declared his candidacy in Virginia. Having chosen to wait to file suit until after he was denied a place on the ballot, he subjected himself to the rule that "equity ministers to the vigilant, not to those who sleep upon their rights.The order also endorses, without definitively resolving, Virginia's argument about Perry's lack of standing (which the district court criticized but which I thought might have merit). The language of the twenty-two page order suggests that Judge Wilkinson wielded the primary pen in drafting. That makes sense given his seniority on the panel. All three judges must have been very busy given the short turnaround time of approximately 50 hours, including Sunday and a Monday holiday.]

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In a last-ditch attempt to get on the Virginia ballot, counsel for Republican presidential candidate Rick Perry has filed an Emergency Motion for Injunction Pending Appeal. In response to this Sunday filing, the Fourth Circuit has called for a response to be filed tomorrow, which is Martin Luther King, Jr. Day.

Some key language from the opening:

Movant filed this lawsuit on December 27, 2011, the same date the names of candidates qualified to appear on the ballot were scheduled to be certified and just two business days after Defendant Mullins made a preliminary determination and publicly announced Movant did not submit enough petition signatures to qualify to be placed on the ballot. Prior to this date, Movant reasonably expected to meet the requirements of Virginia’s “likely . . . unconstitutional” election law, and Respondents could not have suffered any injury, as they could not have begun the process of finalizing their ballot orders.

Movant moves this Court, pursuant to Rule 8(a) of the Federal Rules of  Appellate Procedure, for an order granting injunctive relief. Movant would show this Court should issue an injunction ordering Movant’s name to appear alongside others on the ballot for the Republican primary for the Commonwealth of Virginia, or in the alternative, that this Court issue an injunction ordering the Respondents not to order, print, or mail ballots prior to the Court’s final consideration of this appeal.

[UPDATE: Virginia filed its response, which is available at Politico.]

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Judge Gibney’s opinion denying relief to Rick Perry, Newt Gingrich, Rick Santorum, and Jon Huntsman is well written, particularly given the time constraints within which the writing was done. I am no expert in election law, but as a generalist, I am persuaded that his ruling is correct.

I think that Judge Gibney was wrong, however, to dismiss as “disingenuous” Virginia’s argument that the ballot-access-seeking candidates lack standing. Here is Judge Gibney’s analysis:

The defendants claim that the plaintiffs lack standing because they do not have 10,000 signatures, and therefore may not appear on the ballot. This disingenuous argument confuses a decision on the merits with standing. Here, the plaintiffs contend that they do not have 10,000 signatures because of the Commonwealth’s unconstitutional rules. They allege two distinct elements of injury: the inability to speak through non-Virginians, and the consequent failure to secure enough signatures to get on the ballot. These contentions satisfy the Article III standing requirement.

“Disingenuous” is a strong word.

Even if the argument is wrong, it does not appear disingenuous. And the claim that plaintiffs lack standing might not be wrong; it might be right.

Standing has three prongs: injury, causation, and redressability. Judge Gibney’s standing analysis examines only the injury prong. But it appears that Perry, Gingrich, Santorum, and Huntsman cannot satisfy the redressability prong. Even if they are right that the residency requirement for circulators is unconstitutional, there may be no redress available to them. That is largely a function of when they decided to sue–after it was too late.

Standing is assessed as of the time of filing. If a plaintiff’s complained-of injury could not be redressed as of the time of filing, then that plaintiff would lack standing. In denying relief based on laches, Judge Gibney observed that, as of the date of the ruling, Virginia could not get the candidates on the ballot on time. If the same was true as of the time of filing, then there was no relief that a court could have ordered to redress the claimed injury, and the plaintiffs would have lacked standing.

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Judge Gibney has denied relief to Rick Perry, Newt Gingrich, Rick Santorum, and Jon Huntsman in their attempt to get on the Virginia ballot. Here is a .pdf of today’s ruling in Perry v. Judd. The decision rests primarily on laches. Translation? They waited too long to challenge the ballot access rules. Some nice language from the opening:

The equitable doctrine of laches bars the plaintiffs’ request for a preliminary injunction. They knew the rules in Virginia many months ago; the limitations on circulators affected them as soon as they began to circulate petitions. The plaintiffs could have challenged the Virginia law at that time. Instead, they waited until after the time to gather petitions had ended and they had lost the political battle to be on the ballot; then, on the eve of the printing of absentee ballots, they decided to challenge Virginia’s laws. In essence, they played the game, lost, and then complained that the rules were unfair. 

(emphasis added)

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The Fourth Circuit issued published opinions in five cases today. That is a large number of opinions in argued cases for a single day. Two of the cases were argued in September. Both were split decisions. Two of the cases were argued in October. Both were unanimous as to outcome, but one featured an unusual concurring opinion joined by a panel majority. The fifth decision, from a case argued in December, was unanimous. I hope to have more to say about at least some of these opinions in the future, but here is a capsule summary for now.

Fortier v. Principal Life Ins. Co.  is a dispute over disability insurance. A split panel affirms the interpretation of an ERISA plan administrator that resulted in a denial of benefits. Judge Niemeyer wrote the opinion, which was joined in by Judge Wilkinson. Judge Floyd dissented. 

Lee-Thomas v. Prince George’s County is a dispute over sovereign immunity for a county board of education. A split panel affirms the district court’s decision that a statutory waiver of immunity, as interpreted by Maryland’s Court of Appeals, preserved claims against a county board’s of education for $100,000 or less. Judge King wrote the opinion, which was joined by Judge Davis. Judge Keenan dissented. 

Peabody Holding v. United Mine Workers presents a dispute about who decides arbitrability. A Fourth Circuit panel unanimously holds that the court rather than arbitrator must decide arbitrability, because the agreement contains no language unmistakably designating arbitrability for arbitration. Addressing arbitrability in an exercise of its independent judgment, the appellate court concludes that the dispute is arbitrable. Judge Diaz wrote the opinion, which was joined in by Judge Niemeyer and Judge Wynn. 

Zelaya v. Holder is an immigration case. The Fourth Circuit denies the petition for review with respect to an asylum claim and a withholding of removal claim, but grants the petition for review with respect to a Convention Against Torture claim. Senior Judge Hamilton wrote the opinion for the court, which was joined in by Judge Davis and Judge Floyd. Judge Floyd wrote a separate concurrence, in which Judge Davis joined. (One lesson? When Judge Floyd writes a separate concurrence, turnabout is fair play. See here for this panel’s similar voting in a different case. One question: What is going on with this panel?)

Warren v. Sessoms & Rogers is a case about the Fair Debt Collection Practices Act. The Fourth Circuit holds that the district court, based on the defendant’s characterizations of its Rule 68 offer of judgment, incorrectly dismissed the FDCPA complaint. Judge Motz wrote the opinion, in which Judge Gregory and Judge Floyd joined. (Judge Floyd did not write a separate concurrence.)

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The Fourth Circuit issued a published opinion yesterday that appears to cap long-running litigation over how the government should pay for brain damage caused to a child by government doctors. The specific issue on appeal was whether the government could obtain a reversionary interest in the $22,823,718 trust awarded for future care costs. The Fourth Circuit said yes. Judge Motz wrote the opinion in Cibula v. United States, in which Judge Gregory and Judge Duncan joined. (Note: This is the second time that this case has been to the Fourth Circuit. For background on the litigation, see Cibula v. United States, 551 F.3d 316 (4th Cir. 2009).)

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The Fourth Circuit yesterday issued two published opinions dealing with the civil commitment of sexually dangerous persons, United States v. Timms and United States v. Hall. The two cases were decided by unanimous vote of a panel made up of Chief Judge Traxler, Judge Agee, and Judge Motz. They are follow-up cases to the Supreme Court’s decision in United States v. Comstock, which upheld Congress’s power to enact § 4248 under the Necessary and Proper Clause.

The opinion in Timms, by Judge Agee, contains an overview of the evolution and current state of judicial treatment of the “civil commitment system established by § 4248 as part of the Adam Walsh Child Protection and Safety Act of 2006.” The decision reverses a district court’s dismissal of a commitment action against Gerald Timms. The Fourth Circuit concludes that § 4248 does not violate the Equal Protection Clause and that Timms’s right to due process was not violated by extended delays in the consideration of his commitment (large chunks of which were due to the lengthy constitutional challenge to § 4248 resolved by the Supreme Court in Comstock).

In United States v. Hall, authored by Chief Judge Traxler, the Court of Appeals affirmed the district court’s determination that the government had failed to prove by clear and convincing evidence that Hall is sexually dangerous.

These two decisions are important because the vast majority of those that the federal government has certified as sexually dangerous persons are in FCI-Butner, the federal correctional facility in Butner, North Carolina. According to the opinion, the government has certified 130 persons as “sexually dangerous,” and 116 of those certifications were filed in the Eastern District of North Carolina. (Last February, the Raleigh Public Record did a two-part story (here and here) on the men at FCI-Butner being held as “sexually dangerous.”)

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In the previous post, I asked whether a member of an Indian tribe has standing to bring a constitutional challenge to the minimum coverage provision in § 5000A of the tax code (aka the “individual mandate in Obamacare”). A member of an Indian tribe is in an unusual position under § 5000A. She is obligated to have minimum essential coverage, but she is exempt from the penalty for non-compliance. See 26 U.S.C. § 5000A(e)(3). Assuming that the penalty for non-compliance is the only legal consequence for not having minimum essential coverage, I do not see how she would have standing to bring a constitutional challenge to the requirement that she have minimum essential coverage.

If that is right, then what about Mary Brown? She is one of the private plaintiffs in the constitutional challenge to § 5000A to be decided by the Supreme Court. Ms. Brown’s lawyers have notified the Supreme Court that she has filed a petition for bankruptcy. Although there is not enough public information to make a conclusive determination, Ms. Brown’s financial situation probably qualifies her for a penalty exemption in § 5000A(e). If Ms. Brown does fall within one of the penalty exemptions, are there any arguments to support her standing that differ from those available to the member of an Indian tribe?

One that comes to mind is that financial circumstances are subject to change, whereas tribe membership is stable throughout one’s life. If a person’s qualification for exemption varies from month to month, then that person comes in and out of the legal crosshairs of someone with whom one can have a justiciable controversy. This difference is relevant, because someone permanently exempt has no legal adversity with anyone that would give rise to a justiciable controversy. The sometimes-exempt person, by contrast, sometimes does have such legal adversity.

The justiciability problem posed by a sometimes-exempt person is best thought of as a mootness problem rather than a standing problem. The general rule is that standing is assessed as of the time of filing. If the sometimes-exempt person was not exempt as of the time of filing, and the person otherwise had standing, then a change giving rise to that person’s exemption presents a problem of mootness. That doctrine is more flexible than standing. In Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), for example, Justice Ginsburg’s opinion for the Court expressed openness to an “argument from sunk costs.”

That is as far as I’ve taken the analysis for now. As always, I welcome suggestions, corrections, and other comments.

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