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Archive for the ‘Fourth Circuit’ Category

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 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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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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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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The police in Raleigh, NC pulled over a Crown Victoria and found a firearm in the console between the passenger and driver. The vehicle had broken some traffic laws, but the real reason that the policed pulled it over was because Officer Greenwood had relayed to the stopping officers information from a confidential informant about the presence of a man with a gun in the vehicle. The vehicle’s passenger first denied but later admitted that the gun was his. He stated that he had fired the gun earlier in the day to scare Chill Will, a man with whom he was having a dispute. At trial, the district court admitted Officer Greenwood’s testimony about what the confidential informant told him, not for the truth of the matter but for the purpose of explaining why the police acted as they did.

The Fourth Circuit affirmed the resulting conviction today in an unpublished opinion in United States v. Washington. Judge Wynn authored the opinion, in which Judge Keenan and Senior Judge Hamilton concurred. The panel rejected Confrontation Clause and Rule 403 challenges.

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A panel of the Fourth Circuit issued an unpublished per curiam opinion in Kronberg v. LaRouche affirming an order of dismissal without prejudice for failure to comply with discovery obligations. Appellants sought the harsher penalty of dismissal with prejudice, as well as a decision on a 12(b)(6) motion. But the appellate court concluded that the district court did not abuse its discretion in ordering dismissal without prejudice. The panel consisted of Judge Niemeyer, Judge Shedd, and Judge Davis.

Some key language:

[T]he decision to implement sanctions is left to the discretion of the trial court. In this case, the magistrate judge weighed the facts before it and ultimately concluded that—because Kronberg had been a diligent litigant when she had counsel of choice—it was unfair to dismiss the case with prejudice. This decision is consistent with the “strong policy that cases be decided on the merits, and that dismissal without deciding the merits is the most extreme sanction” that should only be done “with restraint.” United States v. Shaffer Equipment Co., 11 F.3d 450, 462 (4th Cir. 1993).

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Judge Diaz of the Fourth Circuit found himself considering North Carolina business law once again, writing the unpublished opinion in The Country Vintner of North Carolina, LLC v. E&J Gallo Winery, Inc., which was joined in by Judge Davis and Judge Keenan. Before reaching the issues of North Carolina law, though, Judge Diaz needed to address abstention issues that only arise in federal court: whether the district court should have abstained under Burford or Thibodaux. The opinion, affirming the judgment of the district court in favor of defendant Gallo Winery. The court affirms the district court’s determinations that the plaintiff’s Uniform and Deceptive Trade Practices Act claim was just a repackaged Wine Act claim, and that the Wine Act claim failed.

Here is how the opinion begins:

We consider in this case whether, under the North Carolina Wine Distribution Agreements Act, (“Wine Act” or “Act”) a wine  wholesaler’s contractual right to distribute an imported wine survives a change in the winery that imports the brand. The district court declined to abstain from resolving this issue in favor of a state court proceeding, and held that Appellant’s  distribution rights did not survive a change in importers. The district court also dismissed Appellant’s separate claim under  the North Carolina Unfair and Deceptive Trade Practices Act. We affirm.

Some key language regarding abstention:

[T]he district court was interpreting a straightforward regulatory scheme that had not been the subject of much controversy in prior state or federal cases. Further, it carefully distinguished prior cases in which we held that abstention was appropriate and found that the circumstances here were inapposite. Moreover, a 2010 amendment to the Wine Act makes it unlikely that the question presented in this appeal is likely to recur. In sum, Country Vintner has failed to overcome the heavy deference we accord district courts in deciding whether to abstain from hearing a case.

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In an unpublished disposition in United States v. Glisson, the Fourth Circuit has affirmed convictions and sentences on narcotics and firearms charges for two brothers, while vacating and remanding on one count for one of the brothers based on a Second Amendment as-applied challenge.

The panel that issued the per curiam disposition consisted of Judge Gregory, Judge Shedd, and Judge Davis. Judge Davis wrote an opinion concurring in part and concurring in the judgment.

The puzzling aspect of the decision is its remand for further evidentiary development of an as-applied Second Amendment challenge to 922(g)(9), which the Fourth Circuit upheld against a similar challenge in United States v. Staten, issued last December. In his partial concurrence, Judge Davis notes that the remand “may seem puzzling in some sense in light of United States v. Staten, — F.3d —, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), but given the  disposition of this appeal, it would seem likely that the government will move successfully to dismiss that charge altogether upon remand.”

Judge Davis is right. The remand does seem puzzling. And the puzzle does not go away upon considering that the remand may be pointless. Is there a new principle that the Fourth Circuit will vacate and remand for harmless non-error?

The more prudent course seemingly would have been to affirm in light of Staten. The panel’s failure to do so, even in an unpublished disposition, suggests that the court may countenance insistence on individualized determinations under Second Amendment challenges to convictions under 922(g)(9), notwithstanding that such insistence appears unwarranted under binding circuit case law.

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The Fourth Circuit’s unpublished per curiam opinion in United States v. Rydland provides a helpful and concise discussion of some rules of evidence relating to the use of notes to refresh a witness’s recollection and to impeach the witness with prior inconsistent statements. The panel that issue the opinion consisted of Judge Wilkinson, Judge Motz, and Judge Shedd.

The panel distilled two key principles that governed the district court’s ruling: ” (1) a party may not attempt to introduce otherwise inadmissible evidence under the guise of refreshing recollection and (2) a witness may not use a document to refresh recollection unless she has exhibited a failure of memory.”

The panel’s distillation of these principles is interesting in itself. In a footnote, the opinion notes that the district court cited three cases, to which citations the opinion added explanatory text. The three citations were to a 2004 opinion from the First Circuit, a 1967 opinion from the Eighth Circuit, and a 1965 opinion from the Fifth Circuit. Presumably, the district court’s ruling was based on something like a reliable bench book containing established principles of evidence law, rather than on-the-spot electronic research into the latest decisions.

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Less than a month after oral argument, the Fourth Circuit issued an unpublished per curiam opinion reversing the dismissal of claims against the Law Office of  William M. Rudow, LLC (“Rudow Law”) under the Fair Debt  Collection Practices Act (“FDCPA”) and the Maryland Consumer Debt Collection Act (“MCDCA”). The panel consisted of Judge Niemeyer, Judge Motz, and Judge Floyd.

The panel held that the district court erred in holding that the plaintiff could not sue under the FDCPA and MCDCA because she did not owe the debt that Rudow Law sought to collect. The fact that Maryland law characterizes replevin as a tort action did not bring it outside of the reach of the FDCPA. And “the district court erred in holding that non-debtors,  or those with no financial interest in the collateral at issue, may not bring suit under the FDCPA.” The per curiam opinion explains that “[t]he enforcement provision of the FDCPA imposes liability on any debt collector who fails to comply with the statute’s provisions ‘with respect to any person.’ 15 U.S.C. § 1692k(a) (emphasis added). Consequently, absent a limitation in the substantive provisions of the FDCPA, any aggrieved party, not just a debtor, may bring an action under the statute.”

The per curiam opinion and quick turnaround make this seem like an easy case.  Yet the opinion also seems to offer two important holdings about the scope of the FDCPA, seemingly qualifying the opinion for published status under Local Rule 36(a).

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The Fourth Circuit’s sole published opinion today came in Hancock v. Astrue, in which a panel of the Court of Appeals affirmed the denial of an application for supplemental security income (“SSI”). Chief Judge Traxler wrote the opinion, in which Judge Shedd and Judge Floyd joined (a South Carolina trifecta).

The appeal focused on the applicant’s cognitive functioning. Chief Judge Traxler wrote:

The only issue on appeal is whether the ALJ erred by concluding that Hancock’s level of cognitive functioning did not meet or equal the listed impairment for mental retardation, Listing 12.05. Listing 12.05 requires a showing of “deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22″ (“Prong 1″). Listing 12.05 also requires the satisfaction of one of four additional requirements identified as Requirements A-D. At issue in this case was Requirement C, which requires “[a] valid verbal, performance, or full scale IQ of 60 through 70″ (“Prong 2″), as well as “a physical or other mental impairment imposing an additional and significant work-related limitation of function” (“Prong 3″).

The ALJ found that Hancock did not establish any of the three prongs of Listing 12.05C. Although Hancock argues that the ALJ erred with regard to his findings as to each of the three prongs, the Commissioner does not contest Hancock’s ability to establish Prong 3. Therefore, we are left to consider whether substantial evidence existed to support the ALJ’s findings with respect to Prongs 1 and 2.

The court affirmed the ALJ’s rejection of an IQ score, based on the ALJ’s assessment of the inconsistency between the findings of the consultative psychologist, Dr. Joseph Appollo, and evidence of the applicant’s actual functioning and notes of treating psychiatrists.

The court also affirmed the ALJ’s conclusion that the applicant had no deficits in adaptive functioning:

In finding no deficits in adaptive functioning generally, the ALJ concluded that “the claimant has worked several jobs and performed a variety of tasks which would be expected to be beyond the capacity of a mentally retarded person.” A.R. 19. With regard to past jobs, the ALJ found that Hancock previously worked as a battery assembler and a drop clipper. [footnote omitted] With regard to tasks, the ALJ noted that Hancock has the ability to shop, pay bills, and make change; that she takes care of three small grandchildren at a level of care that satisfies the Department of Social Services; that she does the majority of her household’s chores, including cooking and baking; that she is attending school to obtain a GED; and that she does puzzles for entertainment. We believe this evidence was sufficient to support the ALJ’s conclusion that Hancock had no deficits in adaptive functioning.

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The Fourth Circuit’s opinion in United States v. Staten, issued last month, contains several observations about the use of social science reports. The government relied on a number of studies to establish the rate of domestic violence, the rate of recidivism among domestic violence offenders, and the use of firearms by domestic violence offenders. The government did not, however, introduce paper copies of these reports in the district court, asserting that they were freely available over the Internet. The Fourth Circuit found this approach to be generally okay (though not the best practice), with one exception:

We believe the far better practice is for the government to offer copies of whatever reports/articles upon which it seeks to rely in attempting to carry its burden under intermediate scrutiny for inclusion in the record at the district court level. However, with respect to the reports upon which the government relies in the present case, because Staten has never disputed the accuracy of either the government’s representations as to their ready availability via the Internet or the accuracy of the government’s representations as to their content, we reject Staten’s argument that the government cannot rely upon the reports to meet its burden under intermediate scrutiny in this case. We also note that, with one exception which we will address later in this opinion, we had no trouble viewing such reports via the Internet using the websites included in the addendum to the government’s appellate brief.

The one exception was an article from the Journal of the American Medical Association, which required a paid subscription for access to the full text. Senior Judge Hamilton, writing for the Fourth Circuit panel, wrote:

The online citation provided by the government for the full-text version of this report requires a paid subscription to the Journal of the American Medical Association. Fortunately for the government, we were able to confirm the accuracy of the government’s citation to our full satisfaction by viewing an abstract of the report on the Internet website for the Journal of the American Medical Association and by observing that the Seventh Circuit, sitting en banc, cited the same report for the same statistic in Skoien II, 614 F.3d at 643. Nonetheless, we are hereby putting the government on notice that, while it caught a break under the circumstances this time, if a social science report, article, or raw data upon which it relies is not readily available free of charge on the Internet, the government must offer a paper copy in the district court for the record in order for it to be considered.

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A South Carolina FOIA request by radio personality Rocky Disabato (“Rocky D”) has resulted in a Fourth Circuit ruling that adopts an expansive view of the circumstances in which it is appropriate for the federal courts to abstain under Younger v. Harris. Judge Wynn wrote the unpublished opinion in South Carolina Association of School Administrators v. Disabato, which was joined in by Chief Judge Traxler and Judge Wilkinson. (See here for an article about the parallel state litigation by Schuyler Kropf in The Post and Courier, and here, here, and here, for criticisms of the state trial court decision.)

After the Association brought a successful legal action against then-Governor Mark Sanford to obtain funds for education, Disabato sent the Association a public records request pursuant to the South Carolina Freedom of Information Act (“SC FOIA”). The Association responded that it was not subject to the SC FOIA.

On December 7, 2009 Disabato filed suit in the Charleston County Court of Common Pleas to obtain the records he sought.

On February 2, 2010, the Association brought a federal declaratory judgment action seeking a declaration that the SC FOIA was unconstitutional as applied to it as a purportedly public corporation. The federal DJ complaint alleged that application of the SC FOIA to non-profit corporations engaged in political speech and issue advocacy violates the First Amendment.

Disabato moved the federal court to abstain and dismiss. On April 22, 2010, the district court granted Disabato’s motion and dismissed the case based on Younger abstention. (The district court also ruled that Pullman abstention applied, but that ground would have been insufficient for dismissal, as a federal court that abstains under Pullman should stay rather than dismiss.)

The Fourth Circuit’s decision affirming the district court’s Younger-based dismissal rests on a broad understanding of Younger abstention. As the court notes, Younger abstention has migrated outside the context of pending state criminal proceedings.

In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987), the Supreme Court held Younger abstention to be appropriate in a civil case involving only private parties. After losing a multi-billion dollar case in Texas state court, Texaco brought a federal action in New York seeking to enjoin Pennzoil from enforcing its post-judgment rights to place liens on Texaco’s real property in Texas and to begin levying on Texaco’s Texas assets unless Texaco posted a bond (which Texaco argued it could not afford to post). Although the state was not a party in Pennzoil, the opinion emphasized that the federal proceeding interfered with the state’s interest in enforcing the judgments of its courts. The principal state interest at issue in Disabato, by contrast, appears to be in state courts being able to interpret and apply the SC FOIA in private-party litigation. That interest, standing alone, is insufficient under Pennzoil. Answering a charge of Justice Stevens in dissent, the opinion for the Court stated in a footnote that “the State of Texas has an interest in this proceeding ‘that goes beyond its interest as adjudicator of wholly private disputes.’ Our opinion does not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather, as in Juidice, we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’” Pennzoil, 481 U.S., at 14 n.12.

Another state interest at issue in Disabato is in the constitutionality of the SC FOIA. But the state would be able to protect that interest in federal court, if need be.

The best explanation for the Fourth Circuit’s decision is a constitutional avoidance rationale, which fits more neatly into Pullman abstention. As the Court noted in Pennzoil, however, “considerations similar to those that mandate Pullman abstention are relevant to a court’s decision whether to abstain under Younger. Cf. Moore v. Sims, 442 U. S. 415, 428 (1979). The various types of abstention are not rigid pigeonholes into which federal courts must try to fit cases. Rather, they reflect a complex of considerations designed to soften the tensions inherent in a system that contemplates parallel judicial processes.” Pennzoil, 481 U.S., at 11 n.9.

While constitutional avoidance is a sensible grounds for abstention, there is a twist in this case in that the federal plaintiff is a “public body” under state law. While not the State itself, the Association is a “public body” subject to the SC FOIA, and the Association wants a federal forum. To the extent that the comity rationale for abstention indicates respect for the forum choices of the state, perhaps the Association’s choice of a federal forum should be given some weight.

In any event, the expansion of Younger seems unnecessary to support the outcome. It might have been more prudent doctrinally if the court had instead affirmed dismissal based on the discretion of federal courts to refuse to entertain declaratory judgment actions. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 286-87 (1995). That would not have required breaking any new legal ground.

Having pursued the analysis this far, I acknowledge in conclusion that this parsing of various grounds for abstention may reflect too much concern with the “rigid pigeonholes” that the Court warned against in Pennzoil.  Because the opinion is unpublished, the new legal ground broken in Disabato does not necessarily mark a permanent change in the landscape of abstention doctrine. It is a fascinating case nonetheless, at least for those of us who find this kind of thing fascinating (and let’s face it, if you’ve read this far, you just might be one of those people).

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A unanimous panel of the United States Court of Appeals for the Fourth Circuit today issued a decision rejecting an as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(8),  which prohibits a person subject to a certain type of domestic violence protective order from possessing a firearm. Senior Judge Hamilton wrote the published opinion in United States v. Chapman, in which Judge Niemeyer and Judge Diaz joined.

The decision applies intermediate scrutiny and largely tracks the Fourth Circuit’s opinion in United States v. Staten, also authored by Senior Judge Hamilton. In Staten, the Fourth Circuit upheld 18 U.S.C. § 922(g)(9) against an as-applied Second Amendment challenge. That statutory provision prohibits the possession of a firearm by one convicted of a misdemeanor crime of domestic violence.

Some key language from today’s opinion:

Chapman having cast no doubt on the government’s proffered social science evidence and after reviewing it ourselves, we again hold “the government has established that: (1) domestic violence is a serious problem in the United States; (2) the rate of recidivism among domestic violence misdemeanants is substantial; (3) the use of firearms in connection with domestic violence is all too common; (4) the use of firearms in connection with domestic violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide.” Staten, 2011 WL 6016976, at *11. Given these established facts, along with logic and common sense, we are constrained to hold that the government has carried its burden of establishing a reasonable fit between the substantial governmental objective of reducing domestic gun violence and keeping firearms out of the hands of persons who are currently subject to a court order which: (1) issued after a hearing satisfying the fundamental requirements of procedural due process; (2) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (3) by its terms, explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. See United States v. Reese, 627 F.3d 792,   803-04 (10th Cir. 2010) (applying intermediate scrutiny and rejecting Second Amendment challenge to defendant’s conviction under § 922(g)(8)(A)-(B), and (C)(ii)).

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In the last two weeks of 2011, the Fourth Circuit issued five unpublished opinions after argument, two in criminal cases and three in civil cases, all unanimous. The court affirmed in three cases, reversed in one, and affirmed in part and vacated in part in the fifth case.

In United States v. Davis, the court affirmed denial of a motion to suppress notwithstanding the appellant’s argument that the officers extended the scope and duration of a traffic stop beyond the circumstances justifying it. A panel consisting of Judge Niemeyer, Judge Duncan, and Judge Floyd issued  a per curiam opinion.

In United States v. Buczkowski, a panel consisting of Chief Judge Traxler, Judge Agee, and Judge Diaz reduced twenty-seven counts of transporting child pornography down to one. The unpublished per curiam opinion begins as follows:

Daniel Buczkowski was convicted of one count of possessing  child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twenty-seven counts of transportation of child pornography in  interstate or foreign commerce, see 18 U.S.C. § 2252(a)(1).  Buczkowski appeals, challenging the convictions and sentences imposed on the transportation counts only. While we find the  government’s evidence sufficient to establish that Buczkowski transported child pornography, that evidence established only a  single act of transportation. Accordingly, we affirm the  conviction and sentence on the first transportation count,  vacate the remaining transportation convictions and sentences, and remand for resentencing.

In Miller v. Montgomery County, the Fourth Circuit affirmed a dismissal for lack of standing. Miller sought to challenge the denial of an application for an exemption from Montgomery County’s Conservation Law relating to certain trees that Miller intended to harvest, but the landowner rather than Miller signed the application. Judge Keenan wrote the opinion, in which Chief Judge Traxler and Judge Gregory joined.

In Young Again Products, Inc. v. Acord, the Fourth Circuit affirmed the imposition of sanctions and a civil contempt order. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Motz concurred.

In Trice, Geary & Myers, LLC v. CAMICO Mutual Insurance Company, a Fourth Circuit panel unanimously reversed a grant of summary judgment in favor of an insurance company, holding that claims brought against a policyholder triggered a duty to defend. Judge Wynn wrote the opinion, in which Judge Gregory and Judge Diaz joined.

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The opinion line-up for United States v. Bell, a recent Fourth Circuit opinion ordering resentencing in a drug case, showcases a defection by two of the three judges. It reads as follows:

Judge Davis wrote the opinion, in which Judge Floyd and Senior Judge Hamilton joined except as to footnote 8. Senior Judge Hamilton wrote an opinion concurring in part and concurring in the judgment, in which Judge Floyd joined.

The defecting-inducing footnote states, in part:

Perhaps in some future case we might be required to decide whether a defendant in circumstances similar to Bell’s bears a burden of production as to his or her personal consumption of a validly prescribed medication. But that question is not before us; in this case, whatever burden of production Appellant Bell may have had was satisfied by the very evidence produced by the government itself, along with the drug screens and evidence of her longstanding legitimate medical needs. Thus, to the extent the concurrence purports to announce a rule imposing an “obligation” on such a defendant to produce evidence of personal consumption at sentencing, it constitutes mere dicta and, in any event, was not argued by the government.

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Judge Wilkinson wrote an opinion for a unanimous panel of the Fourth Circuit last week affirming the dismissal of an action brought by the owner of approximately 100,000 shares of Wachovia Corporation against the bank and four of its senior executives. Judge Motz and Judge Duncan joined in the opinion.

The opinion in Rivers v. Wachovia Corporation begins:

A former shareholder in Wachovia Corporation, appellant John M. Rivers, Jr. seeks to recover personally for the precipitous decline in value of his approximately 100,000 shares of Wachovia stock during the recent financial crisis. The district court, however, dismissed Rivers’s suit against Wachovia and four of its senior executives. The court concluded that Rivers’s complaint stated a claim derivative of injury to the corporation and that he was therefore barred from bringing a direct or individual cause of action against the defendants. Because Rivers’s varied attempts to recast his derivative claim as individual are unavailing, we shall affirm the judgment
The opinion ends:
In the end, Rivers has failed to articulate principled limits on the claims he seeks to press. Limiting individual suits to those who intended to sell is no limit at all; virtually every shareholder considers selling his shares at various points in time and every investor who suffers substantial monetary losses will be tempted to recall a prior intent to sell. Rivers claims his injury is unique but the number of people who may step forward with a similar tale of inducement not to sell is nigh infinite. Decisions to buy, sell, or hold shares inevitably involve a degree of risk and uncertainty. It is all too common to look back and wish one had invested differently. Investment presupposes risk—it is not the role of courts to reverse the consequences of infelicitous decisions after the fact or to allow one investor to recover losses at the expense of fellow shareholders. To the extent a shareholder wishes to litigate this sort of monetary loss due to the misrepresentations of corporate executives, his remedy lies within the framework of the derivative suit on behalf of the corporation. Because Rivers pursued a very different route, his suit was properly dismissed, and the judgment is affirmed.

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A panel of the Fourth Circuit held unanimously last week that the Maryland Wage Payment and Collection Law (“MWPCL”) does not constitutional a fundamental public policy of Maryland sufficient to defeat a choice-of-law clause choosing the law of another state. Judge Gregory wrote the opinion in Kunda v. C.R. Bard, Inc., which was joined in by Judge Motz and Judge Duncan. Some key language:

[T]he MWPCL contains no express language of legislative intent that that law is a fundamental Maryland public policy. Furthermore, the MWPCL contains no language indicating that any contractual terms contrary to its provisions are void and unenforceable, or that any provision of the MWPCL may not be waived by agreement. Thus, we find that the MWPCL is not a fundamental Maryland public policy.

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For several years, Richard Jaensch used a fake ID to get through airport security faster by giving TSA agents the impression that he was a foreign diplomat. The government eventually caught up with him, and he was convcted under 18 U.S.C. § 1028(a)(1), which criminalizes the use of a false identification document that appears to be issued by or under the authority of the federal government. He was convicted and sentenced to a $750 fine and one year of probation. On appeal, Jaensch argued, among other things, that § 1028(a)(1).

In a published opinion in United States v. Jaensch, the Fourth Circuit held unanimously that the statute was not vague as applied to Jaensch. The panel also rejected Jaensch’s other challenges and affirmed his conviction and sentence. Judge Wynn wrote the opinion, which was joined by in Judge Agee and Senior Judge Hamilton.

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Earlier this week, a split Fourth Circuit panel result two knotty jurisdictional questions. The first relates to appellate jurisdiction  in a case that has been transferred from a district court in one circuit to a district court in another circuit. The second relates to the commercial activities exception of the Foreign Sovereign Immunities Act. Judge Duncan wrote the majority opinion in Wye Oak Technology, Inc. v.  Republic of Iraq, in which Judge Osteen (M.D.N.C.) joined. Judge Shedd dissented.

Wye Oak sued the Republic of Iraq for breach of contract in the United States District Court for the Eastern District of Virginia. The underlying contract was between Wye Oak and Iraq’s Ministry of Defense. Iraq moved to dismiss for  lack of jurisdiction (both subject-matter jurisdiction and personal jurisdiction) and for improper venue. The subject-matter jurisdiction argument was based on the Foreign Sovereign Immunities Act. Wye Oak  invoked the commercial activities exception. Iraq then argued that the commercial activities exception did not apply to the claim against Iraq, because the contract was entered into by Iraq’s Ministry of Defense–a separate legal person–rather than Iraq itself. The District Court held that the commercial activities exception did apply after determining that Iraq and Iraq’s Ministry of Defense should be “treated as one and the same” for purposes of the FSIA. The District Court also held, however,  that venue was improper, and immediately transferred the case to the United States District Court for the District of Columbia. The transferee court stayed the case while the parties appealed the denial of the motion to dismiss to the Fourth Circuit.

The Fourth Circuit affirmed, holding that it possessed appellate jurisdiction notwithstanding the transfer, and that Iraq and Iraq’s Ministry of Defense were not separate legal purpose persons for purposes of the FSIA’s commercial activities exception.

Judge Shedd dissented from the holding regarding appellate jurisdiction over the now-transferred case.

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