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Posts Tagged ‘Gregory’

A split panel of the Fourth Circuit has reversed, on interlocutory appeal, the denial of leave to amend a Title VII class action complaint alleging company-wide gender discrimination at  Family Dollar Stores. Judge Gregory wrote the opinion for the court in Scott v. Family Dollar Stores, Inc., in which Judge Keenan (who also wrote a separate concurrence) joined. Judge Wilkinson dissented.

This case is full of issues for proceduralists and class-action lawyers. It is likely to prove a source of significant worry for those defending employment class actions in the Fourth Circuit because it allows plaintiffs to transmute their original class allegations into something substantially different three years into the litigation (after briefing on the defendant’s motion for summary judgment was almost complete). The majority and dissent each think the other misunderstands the meaning of Wal-Mart Stores, Inc. v. Dukes, and this back-and-forth is worth studying. But the majority’s answers to the dissent’s identification of the various problems with allowing leave to amend seem unsatisfactory. One prominent criticism of the Supreme Court’s recent jurisprudence tightening up pleading and class certification requirements has been excessive solicitude for corporate defendants’ costs-of-litigation arguments. This decision seem subject to the mirror-image criticism. 

Judge Wilkinson’s discussion of the shortcomings of the majority’s analysis of prejudice is persuasive, particularly given the “clearly erroneous” standard of appellate review of factual determinations related to prejudice wrapped inside the “abuse of discretion” standard for reversing a denial of leave to amend. Perhaps the most impassioned part of Judge Wilkinson’s dissent, however, is his discussion of bad faith. Here is how that discussion begins:

A district court’s refusal to permit a pleading amendment on bad faith grounds is justified where “the plaintiff’s first theory of recovery is based on his own reading of . . . cases and it turns out that he misinterpreted how that theory would apply to the facts of his case.” [438 F.3d] at 428 (emphasis omitted). That situation is precisely what occurred here. Plaintiffs misinterpreted how certain class action precedents would apply to their case and then sought to construct an entirely new set of facts to overcome their error. Their willingness to adopt contradictory factual positions in order to match their evolving legal theories evidences a degree of bad faith sufficient to warrant denial of leave to amend. To the old-fashioned view that prior representations to a court actually count for something, the majority answers: Not much.

Judge Keenan writes separately “to emphasize that despite the dissent’s dystopian view, the majority has rendered a straightforward and limited decision: that the plaintiffs should be permitted to amend their original complaint after a dramatic shift in the law regarding class action certification.” Judge Keenan also notes that the majority opinion does not dictate that class certification is appropriate, and that “if the allegations included in the amended complaint ultimately are not substantiated, the class simply will not be certified, and the plaintiffs’ case will fail.” This observation, however, only underscores the prejudice that the plaintiffs’ flip imposes on the defendant. As the district court observed, “Plaintiffs wish to pursue extensive discovery to support and clarify their new theories, which will require the parties to re-open and conduct new expert discovery based on plaintiffs’ changed version of the facts.”

A footnote in Judge Wilkinson’s dissent responds to Judge Keenan’s concurrence, using about one-and-a-half times as many words in the footnote as the concurrence itself contained. After reciting a litany of questions assertedly unanswered by the majority, Judge Wilkinson concludes: “Perhaps my fine colleagues will some day provide some answers to some of these questions, but for now they are doing what football teams usually do on fourth down.”

On a different note, this is the second decision I’ve noted this week involving the concept of pendent appellate jurisdiction. The Seventh Circuit’s use of what Stephen Vladeck has described as “pendent appellate bootstrapping” seems to have been at the root of the Supreme Court’s DIG in Madigan v. Levin yesterday. The Fourth Circuit’s decision today was enabled by the court’s decision to use pendent appellate jurisdiction to review the denial of leave to amend on interlocutory appeal of the class certification decision. Unless I missed it, Judge Wilkinson did not take issue with this aspect of the majority’s decision, although doing so might have fit well with one of the primary themes of his dissent, namely that “this is a rude reversal.”

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In Tobey v. Jones, the Fourth Circuit needed to decide whether Aaron Tobey’s First-Amendment-based Bivens claim for money damages against two TSA officers (Jones and Smith, their real last names) survived the federal government’s 12(b)(6) motion. These officers (TSOs) radioed for police assistance after Tobey, having been selected for “enhanced secondary screening” at a Richmond (VA) International Airport security screening checkpoint, stripped down to his running shorts and socks to reveal portions of the Fourth Amendment written on his bare chest. When the airport police arrived, they arrested Tobey. They then questioned him and ultimately released him after about an hour. Tobey boarded his plane without any further difficulty. A few months later he sued the TSOs (Jones and Smith), the airport police, the airport commission, and some higher-level officials at the commission, the Department of Homeland Security, and the TSA.

The district court (Judge Hudson, EDVA) dismissed all of the claims except for a First Amendment-based claim that Smith and Jones “caused [Tobey's] seizure . . . because of the message conveyed by [his] silent, nonviolent expression of objection to the TSA’s screening policies . . . and thereby engaged in content and/or viewpoint discrimination.” The government appealed this denial.

A split panel of the Fourth Circuit affirmed. Judge Gregory, joined by Judge Duncan, held that Tobey’s complaint “plausibly set forth a claim that the TSA agents violated his clearly established First Amendment rights.” Judge Wilkinson authored an empassioned dissent.

Eugene Volokh and most commenters at Volokh Conspiracy have expressed agreement with the panel majority’s analysis. Are they  wrong about what “sounds right”? I think so. Not because of disagreement with Volokh’s take on the First Amendment, but because he focuses on First Amendment principles apart from the appropriate pleading rules and the particular facts of the case.

Viewed through the lens of Twombly and Iqbal, Tobey needed to plead facts rendering it plausible that the TSOs called the police because of disagreement with his message rather than because he stripped off his shirt and pants in the screening area. He did no such thing. Indeed, according to the district court, Tobey’s counsel conceded at oral argument that his behavior was bizarre, “and that the TSOs were justified in summoning the RIC Police for further inquiry.” It seems to me that should be the end of it, for that is all the TSOs are alleged to have done–summon the police. When people act in a concededly “bizarre” fashion in an airport screening area, the TSOs should call the police and let them handle the bizarreness. Whether the police should have handcuffed and arrested Tobey is a separate question from whether the TSOs should have called the police to deal with Tobey. And it is only that latter question that was at issue in the Fourth Circuit appeal.

I should also add that Judge Wilkinson’s take on the effect of taking off one’s shirt and pants in an airport screening area seems better grounded in the reality of modern air travel than Judge Gregory’s. Judge Wilkinson wrote that “[o]utside a few limited contexts, such as public swimming pools, removing one’s shirt and pants will always attract other people’s attention and distract them from whatever they happen to be doing.” Judge Gregory responds that “[p]assengers routinely remove clothing at an airport screening station, and in fact are required to do so by TSA regulations.” But this misses the point. Passengers do not routinely go bare-chested, nor are they are required to do so by TSA regulations. Judge Wilkinson may have overstated the case slightly in asserting that “[i]t is sheer fancy to think that defendants had anything on their minds other than eliminating the distraction that Tobey’s state of dishabille was causing.” But if so, only slightly. And in any event it was Tobey’s burden to allege facts making the alternative retaliation-for-protest explanation plausible.

Judge Gregory’s appeal to “autonomy and the celebration of difference” seems misplaced at an airport screening point. And he surely overstates the case when he writes that “[f]or us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic [tenets] of our Constitution.” For that redescribes what the TSOs were alleged to have done (call the police) with what followed from that call through the decisions and actions of the police (Tobey’s arrest). Judge Gregory writes that “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and RIC police act in close concert.” Yes, here, an arrest was a consequence. But to call it an “undoubtedly natural consequence” is to let the adverb and the adjective do too much work, depriving the police of any independent agency. Or so it seems to me.

 

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After seeing the link from Howard Bashman’s How Appealing and some of my prior posts about the Fourth Circuit pregnancy center cases , my friend (and CUA lawprof) Mark Rienzi sent me the plaintiff’s memorandum of law in support of summary judgment in the Montgomery County, Maryland pregnancy center compelled speech case. That case, argued the same morning as the Baltimore case, has proceeded through full discovery and to summary judgment briefing while the appeal of the preliminary injunction has been pending at the Fourth Circuit. This summary judgment record is not before the Fourth Circuit in the en banc appeal, but it is the record to which the legal standard identified by the Fourth Circuit will be applied by the district court.

I am not an impartial observer, as I was already convinced that the Montgomery County and Baltimore ordinances were unconstitutional and I have long supported the pro-life mission of the pregnancy centers targeted by the ordinances. But I believe that an impartial observer would share my assessment that the record in the Montgomery County case firmly establishes the unconstitutionality of the Montgomery County ordinance.

Reviewing this summary judgment memorandum reminds me of two episodes in the oral arguments over the Baltimore and Montgomery County ordinances.

First, near the end of the argument over the Baltimore ordinance, Judge King and Judge Wilkinson had an interchange in which Judge King advocated more discovery while Judge Wilkinson asserted that discovery is not the friend of the First Amendment (his point being that the time it takes to engage discovery is time during which protected speech may be unconstitutionally silenced). The discovery set forth in this brief shows that both judges are right and wrong in different ways. At least as far as the Montgomery County ordinance is concerned, discovery has been the friend of the First Amendment in the sense that it establishes the unconstitutionality of the ordinance. I expect discovery will establish the same about the Baltimore ordinance if that is the disposition ordered by the Fourth Circuit. But extensive discovery was not necessary. Under strict scrutiny, it is not the burden of the challengers to adduce evidence showing that the ordinance is unconstitutional. It is the burden of the government to show that the ordinance is the least restrictive means of accomplishing a compelling government interest. And the evidence on which the legislature acted should have been set at enactment such that extensive discovery is unnecessary.

Second, near the end of the argument over the Montgomery County ordinance, Rienzi as counsel for the challengers emphasized that the case was “fully teed up” for decision by the district court. In my estimation, this brief makes clear why he thought that was worth emphasizing.

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Something has been bothering me for a while about the en banc oral argument last month over a Baltimore ordinance that requires “limited-resource pregnancy centers” to post a notice that they do not refer for abortion or birth control services. I’ve now done some follow-up research. Others may view the results of this research differently, but in my view, counsel for Baltimore’s artful characterization of an advertisement in the record probably misled others present at the argument in the same way that it (temporarily) misled me.

At the argument, counsel for Baltimore asserted that the city was trying to combat “consumer deception in the offer of pregnancy services.” A powerful part of this argument came just two minutes in, when counsel pointed the court to an “Option Line” advertisement in the Joint Appendix that she described as “clearly and inherently misleading.” Counsel argued that the advertisement  was misleading because it offered “medical services” including “abortion” and “morning-after pill,” even though none of the centers actually offered abortions or the morning-after pill. Until near the end of the argument, none of the judges questioned counsel’s characterization of the Option Line advertisement even though she pointed to the page in the Joint Appendix where this “clearly and inherently misleading” advertisement could be found. And by the time one judge asked about it, it seemed as if the rest of the judges had already accepted the characterization.

This has been bothering me because, shortly after the argument, I googled “Option Line” and I could not see how someone scanning the Option Line website would get the impression that one could use the referral service to obtain either an abortion or the morning-after pill. I thought then that, unless Option Line’s advertising had changed substantially between passage of the ordinance (when the Baltimore City Council was allegedly concerned about deception) and the afternoon of the oral argument (when I reviewed the Option Line website), there was a real possibility that counsel for Baltimore had artfully and somewhat misleadingly characterized the advertisement in the JA.

I recently listened to the audio to verify my notes, and I pulled the Joint Appendix off of PACER to check the actual advertisement.  I’ve posted the relevant JA page here. The advertisement contains the words “abortion” and “morning after pill” and “medical services.” But, in my view, the advertisement cannot reasonably be viewed as offering the “medical services” of either “abortion” or the “morning-after pill.” In relevant part, the advertisement states:

Our consultants will connect you to nearby pregnancy centers that offer the following services:

  • Free pregnancy tests and pregnancy information
  • Abortion and Morning After Pill information, including procedures and risks
  • Medical services, including STD tests, early ultrasounds and pregnancy confirmation
  • Confidential pregnancy options

There is an obvious difference between offering information about abortion and the morning-after pill, on the one hand, and offering medical services such as the provision of abortion and the morning-after pill, on the other hand. Baltimore’s argument glides right over this difference. Unfortunately, Baltimore’s artful characterization of this advertisement mattered to the oral argument. Approximately 35 minutes into the argument, for example, Judge Shedd mentioned to counsel for the centers that “we’ve heard about the website that contained the false information,”thus suggesting that he accepted counsel’s artful characterization of the Option Line website.

Near the very end of the argument (around the 1:14:00 mark on the audio), Judge Niemeyer asked counsel whether Baltimore had any evidence that the clinics regulated by the ordinance “have advertised that they do provide abortions, falsely.” She responded “yes,” pointing to the Option Line advertisement. The argument continued:

Q (Niemeyer): What does it say, it says, “we provide abortion”?

A (Counsel): It says we provide medical services, quote, and then it also, quote, abortion and morning-after pill. . . .

* * *

Q (Wilkinson): That’s false advertising, isn’t it? It can be addressed in a variety of ways . . .

A (Counsel): It’s false. It is. . . .

As I’ve previously observed, the drift of this argument seemed to be that the case would be sent back for more discovery. If that happens, I would be surprised if Baltimore is able to show that any of the clinics regulated by their ordinance “have advertised that they do provide abortions, falsely.” As I read it, and as I suspect most other fair-minded readers would read it as well, the advertisement featured by counsel for Baltimore at oral argument does nothing of the sort.

In light of all this, it will be interesting, regardless of the outcome, to see what use the judges of the Fourth Circuit make of the record that is already before them.

[UPDATE: The companion case from Montgomery County has gone through discovery, although that record is not before the Fourth Circuit at this time. A link to the plaintiff's memorandum of law in support of summary judgment, which contains a discussion of the evidence in that case, is in the post above.]

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This morning’s lively en banc proceedings at the Fourth Circuit in abortion-counseling-related First Amendment challenges did not produce clear signs of a winner, but raised questions (at least in my mind) about what legal issues the court took the cases en banc to address. There was virtually no discussion of commercial speech doctrine, and no judge or set of judges developed a line of questioning that would seemingly lay the foundation to displace strict scrutiny as the appropriate standard of review. That said, oral argument reveals only so much. After all, the panel dissent in one of the cases contained an analysis of commercial speech that was surprisingly detailed in light of the dissenting judge’s failure to lay the predicates for that analysis in oral argument before the panel. It is possible that something similar could happen here–though it is much harder to make that kind of move when writing for a number of judges rather than just for oneself.

The en banc court heard back-to-back oral arguments in First Amendment challenges to Baltimore and Montgomery County (MD) ordinances requiring certain pregnancy counselors to post signs about the limited nature of the services that they offer. The court’s decision to take these cases en banc vacated panel decisions that granted First Amendment victories to the challengers. (For my earlier coverage of the panel decisions, see here; for my earlier coverage of the oral argument to the panel, see here.) Judge Niemeyer authored those vacated panel decisions, which Judge Agee joined, while Judge King dissented. That configuration of a Niemeyer majority with a King dissent produced back-to-back en banc arguments earlier this year in cases involving the liability of military contractors for activities at Abu Ghraib and other locations in the Iraq war zone. Those arguments resulted in procedural holdings about the lack of appellate court jurisdiction rather than definitive merits rulings. Something similarly limited with respect to the merits may result from this morning’s arguments as well.

As the panel dissenter, Judge King was one of the most vocal questioners at oral argument in both cases. In the Baltimore case, Judge King (along with a few other judges) emphasized the need for more discovery and a better developed record. Given the substance of his dissent in the Baltimore case and the tenor of questioning by other judges, my best guess is that the en banc court will vacate the district court decision in the Baltimore case and remand for further development of the underlying facts. That is not to say I think that is the best decision, only that I think it the most likely decision in light of the limited information revealed at oral argument.

In the Montgomery County case, Judge King returned repeatedly to the “abuse of discretion” standard for appellate review of a decision to grant or deny a preliminary injunction. Even when counsel for Montgomery County correctly noted (against interest) that legal issues were to be reviewed de novo within the context of the abuse of discretion standard for the ultimate decision to grant or deny, Judge King continued to highlight the abuse of discretion standard. Some of Judge King’s questions dovetailed in some respects with Judge Wilkinson’s repeated invocations of “balance” in First Amendment analysis. These emphases, together with some other indicators from oral argument, may suggest a narrow affirmance of Judge Chasanow’s decision. That decision identified a difference between the two sentences that the ordinance compelled centers to include on their signs, and split the difference between the two. Judge Chasanow upheld the portion of the ordinance requiring centers to state that they do not have a licensed medical professional staff, but enjoined the requirement to state that the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider. Judge Wilkinson thought this split-the-difference approach was a sensible balance, and he may not have been alone in that view.

While I have more confidence with respect to the guess about the Baltimore case than the Montgomery County case, I do not have a high level of confidence in either guess. The military contractor en banc cases earlier this year provided much clearer indications of where the center of gravity was on the court at the time of argument. By contrast, there were a number of cross-cutting issues and interventions in these argument.  During portions of the second argument, for example, Judge Gregory and Judge Motz seemed more skeptical of Montgomery County’s ordinance than Judge Wilkinson, who in turn seemed more speech-protective than some of the other judges during argument of the Baltimore case.

Because both of these appeals addressed the issuance of a preliminary injunction, the merits issue of the constitutionality of both ordinances was one step removed from straight-up consideration by the court. Issuance of a preliminary injunction depends on a court’s assessment of the moving party’s likelihood of success on the merits. This is a predictive judgment. If the Fourth Circuit were to hold that the district court in the Baltimore case should not have found a likelihood of success on the merits without allowing for further factual development, while the district court in the Montgomery County case made a reasonable split assessment of the movant’s likelihood of success in that case, that would still leave open the possibility that both ordinances could be completely enjoined down the road.

In my view, that would be the correct ultimate outcome in both cases. The reason for this assessment is the First Amendment standard of review. Both district courts, as well as all three judges on the original panel, thought that strict scrutiny was the appropriate merits standard of review for the preliminary injunction in the Montgomery County case. They were right. Judge King thought that discovery would have helped clarify the appropriate standard of review in the Baltimore case. He argued that Baltimore might have been able to develop evidence to show that the Baltimore ordinance regulated commercial speech. In my view, this argument is based on legal error.

At least as far as the questioning at today’s oral arguments is concerned, the possibility that commercial speech doctrine should apply on remand is the dog that didn’t bark. The qualifier “at least as far as the questioning reveals” is an important one. While Judge King’s questioning at the panel argument was largely favorable to the City, Judge King did not develop lines of questioning to support the analysis that his dissenting opinion ultimately contained. Perhaps a narrow procedural holding would be just an opening move in a push to ultimately apply the standard of review appropriate to regulations of commercial speech. If there is support for that kind of change in the doctrine, it was not revealed at oral arguments today. That is not to say that it did not exist, only that the arguments provided no evidence of the existence of such support. After this morning’s arguments, it remains difficult to see how either Baltimore or Montgomery County can avoid the application of strict scrutiny under First Amendment doctrine as it currently stands.

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Marc DeGirolami has a post bearing this title over at CLR Forum. The post reports on yesterday’s Fourth Circuit decision in Moss v. Spartansburg County School District Seven. Judge Niemeyer wrote the opinion for the court, in which Judge Gregory and Judge Wynn joined.

Apart from its discussion of substantive Establishment Clause principles, the opinion may be of interest for its assessment of Establishment Clause standing (an area of the law that could probably use some rethinking).

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Justin Levitt has a post with this title at Election Law Blog, with an overview and links to coverage. The decision happened yesterday, in United States v. Danielczyk. (See here for my oral argument preview and a link to AP coverage of the oral argument itself.)

Judge Gregory wrote the opinion, which was joined in by Chief Judge Traxler and Judge Diaz. This opinion must have brought Judge Gregory some satisfaction. The controlling Supreme Court decision, FEC v. Beaumont, came to the Supreme Court out of the Fourth Circuit. Judge Gregory authored a panel dissent in that case, and the outcome he advocated in dissent was adopted by the Supreme Court.

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The Fourth Circuit issued a published opinion in two argued cases today. The result in each case was to vacate and remand a decision out of the Eastern District of Virginia. That may be all that the decisions have in common, however. The first decision left the central issue open for resolution on remand after articulating the legal test for the district court to apply, while the second decision resolved the central issue while seemingly adopting a newly constrictive test.

In Oberg v. Kentucky Higher Education Student Loan Corporation, the court addressed whether corporations organized by Kentucky, Pennsylvania, Vermont and Arkansas were “persons” subject to suit under the False Claims Act, or instead “state agencies” not subject to suit under the False Claims Act as interpreted in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787-88 (2000). The appeals court held that the district court applied the wrong legal test in deciding that the corporations were not subject to suit. The Fourth Circuit vacated and remanded for district court application of the test developed under the test that is also used for the “arm of the state” prong of sovereign immunity analysis. Judge Motz wrote the opinion for the court, in which Chief Judge Traxler and Judge Keenan joined.

In Friends of Back Bay v. U.S. Army Corps of Engineers, the court held that the Army Corps of Engineers improperly issued a permit without completing an EIS under NEPA. Among other things, the court near the end of its opinion aligned the Fourth Circuit with the Second Circuit in stating that “the policy goals underlying NEPA are best served if agencies err in favor of preparation of an EIS when . . . there is a substantial possibility that the [proposed] action may have a significant impact on the environment.” I am not a NEPA expert, but the appellate court’s application of the various EIS factors and its adoption of the Second Circuit’s “substantial possibility” test seemed somewhat casual. Judge King wrote the opinion for the court, in which Judge Gregory and Judge Floyd joined.

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The mastermind of a major mortgage fraud conspiracy in North Carolina was able to shed his money laundering convictions with a merger argument. In United States v. Cloud, the Fourth Circuit held today that money laundering convictions premised on the payment of money to third parties simply to cover essential operating expenses for the underlying fraud merged into the underlying fraud and could not be punished under a since-amended federal money laundering statute. Judge Diaz wrote the opinion for the court, in which Judge Gregory and Judge Davis joined.

This decision in Cloud rests on the Fourth Circuit’s decision in United States v. Halstead, 634 F.3d 270 (4th Cir. 2011). That case sets forth Fourth Circuit’s interpretation of the Supreme Court’s 4-1-4 decision in United States v. Santos, 553 U.S. 507 (2008).

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Holding that a criminal trial was tainted by the admission of prior “bad act” evidence, a split Fourth Circuit panel yesterday reversed an individual’s drug and gun convictions. In addition to addressing the admissibility of prior bad act evidence, the opinion contains an extensive discussion of the detention of a vehicle for a canine sniff. Judge Keenan wrote the opinion for the court in United States v. McBride, in which Judge Gregory joined. Judge Wilkinson wrote an opinion concurring in part and dissenting in part.

The improperly admitted evidence consisted of reliable audio and video recordings of a prior drug transaction in which the defendant sold crack cocaine to a government informant. The panel majority reasoned that the evidence surrounding this earlier transaction, which took place 18 months prior to the charged conduct, “was unrelated in time, place, pattern, or manner to the conduct” for which the defendant was indicted. The panel majority further reasoned that it could not conclude that it was “highly probable that the error did not affect the judgment.”

Judge Wilkinson’s dissent argues that the appellate court’s decision “regrettably pulls the trial process away from both the trial court and the jury, substituting its own assessment of the relevance and weight of the defendant’s criminal activity.” The dissent’s analysis begins with a comparison:

Appellant’s position overlooks simply this: that institutional relationships are to law what personal relationships are to life. And keeping the relationship of trial and appellate courts free of unwarranted encroachments is essential to the harmonious workings of our system. . . . The majority pays lip service to our deferential review of the district court’s evidentiary rulings, but fails to show any actual regard for the reasoned rulings of the trial judge in this case.

The dissent concludes by arguing that “[s]ending this case back to the district court for a second round diminishes the trial process”:

Retrials are like yesterday’s breakfast–always stale and seldom satisfying. Witnesses often try to remember what they said at the first trial rather than their actual recollections of the events in question. Everyone is farther removed from the events the trial process is designed to reconstruct. “The very act of trying stale facts may well, ironically, produce a second trial no more reliable as a matter of getting at the truth than the first.” Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in part and dissenting in part).

It does more than merely inconvenience participants to put them through the process twice. Retrials can be traumatic, and criminal trials especially so, as witnesses are brought back for a second time to relive troubling events. As for the jurors here, it reduces to insignificance the time they spent in civic duty listening to evidence and argument and weighing facts whose accuracy is in no way questioned. The majority treads no ground here that was not covered at trial, reviewed by the district judge, and assessed by the jury in rendering a fair verdict. I would let the verdict stand in full. The district court applied proper legal standards, followed case law from ours and other circuits, made a sound and considered evidentiary inquiry, and admirably discharged its obligations throughout. With all respect to my fine colleagues in the majority, the trial court should be commended, not reversed.

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The Fourth Circuit yesterday affirmed the dismissal of contract and tort claims brought by driver Jeremy Mayfield against NASCAR and associates arising out of a positive drug test. Judge Gregory wrote the opinion for the Court in Mayfield v. NASCAR, in which Judge Keenan and Judge Grady (EDVA) joined. The decision upholds the application of a contractual liability waiver and applies Twiqbal to the defamation claim.

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The Fourth Circuit issued two published opinions in argued cases today.

In McDaniel v. Blust, the court affirmed dismissal of several claims that arose out a bankruptcy proceeding. Chief Judge Traxler wrote the opinion for the court, which was joined in by Judge Gregory and Judge Wynn. The opinion addresses the contours of the Barton doctrine, which provides that “before another court may obtain subject-matter jurisdiction over a suit filed against a receiver for acts committed in his official capacity, the plaintiff must obtain leave of the court that appointed the receiver.”

In United States v. Sarwari, the court affirmed the convictions and sentence of a man who submitted passport applications for his stepchildren, describing himself  as their “father” even though he was neither their birth father nor adoptive father. Judge Motz wrote the opinion for the court, which was joined in by Chief Judge Traxler and Judge Keenan. The opinion focuses primarily on the Bronston defense. In Bronston v. United States, 409 U.S. 352 (1973), “the Supreme Court held that an individual cannot be convicted of perjury when the allegedly false statement was ‘literally true but not responsive to the question asked and arguably misleading by negative implication.” In Sarwari, the panel first assumed without deciding that the Bronston defense was available against the particular false statement charges advanced by the government. The panel then proceeded to hold that the facts of the case did not fit within the defense. The panel reasoned that the term “father” is not “fundamentally ambiguous,” and that the evidence was sufficient for the jury to conclude that the defendant understood the term in the same way that it was understood by the government.

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In 2001, an eighteen year-old lawful permanent resident of the United States, formerly of Vietnam, was convicted of distributing cocaine in D.C. In 2003, he successfully completed probation pursuant to D.C.’s Youth Rehabilitation Act, and his conviction was “set aside.” Five years later, he applied for naturalization five years later. The federal government denied his application.Although his drug conviction had been set aside, in the eyes of the District of Columbia, it still counted against him under federal immigration law.

In an opinion issued today, the Fourth Circuit unanimously affirmed the denial of the application for naturalization. Judge Diaz wrote the opinion in Phan v. Holder, in which Judge Gregory and Judge Wynn joined.

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Virginia’s FOIA allows “citizens of the Commonwealth” access to certain government records. A citizen of Rhode Island and a citizen of California tried to use the law to get records, but they were rebuffed because they were not Virginians. They sued, contending that Virginia’s FOIA violates the Privileges and Immunities Clause in Article IV and the dormant Commerce Clause. They lost.

Judge Agee wrote the opinion in McBurney v. Young, in which Judge Niemeyer and Judge Gregory joined.

The challenge relied heavily on a Third Circuit ruling, Lee v. Minner, 458 F.3d 194 (3d Cir. 2006), that held unconstitutional a similar Delaware law. Judge Agee wrote that the decision in Lee extended the Privileges and Immunities Clause beyond what the Supreme Court has staked out, and that, in any event, the right at issue in that case was different from the right at issue in the Fourth Circuit case.

(Note: This is the second time that the case has been to the Fourth Circuit. The first appeal centered on standing. See McBurney v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010).)

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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 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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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 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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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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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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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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Judge Duncan, joined by Judge Motz, wrote the majority opinion earlier this week in United States v. Martin affirming the criminal forfeiture of a Mercedes and gobs of cash.

Although agreeing on some issues, the panel split in resolving the argument that “the district court was without jurisdiction to order the criminal forfeiture of their property after sentencing and the entry of judgments.” Judge Duncan’s opinion addresses this issue largely through application of the Supreme Court’s decision in Dolan v. United States, 130 S.Ct. 2533 (2010), a recent case addressing the consequences of a missed deadline:

Appellants correctly note that the district court neither referenced forfeiture in sentencing Appellants, nor included final orders of forfeiture in their judgments. In fact, the district court failed to enter the preliminary order of forfeiture until after it entered judgments and did not enter a final order of forfeiture until months later. Appellants argue that by missing the deadline set in Rule 32.2, the district court lost jurisdiction to enter orders of forfeiture and to amend the judgments to
include the orders of forfeiture.

Although Rule 32.2, as it existed in 2004, required a district court to finalize forfeiture orders at sentencing and include them in a final judgment, it did not set forth the consequences that would flow from missing that deadline. The Supreme Court, however, has recently provided guidance in an analogous context. Following this guidance, we conclude that missing the deadline set in Rule 32.2 does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so  long as the sentencing court makes clear prior to sentencing that it plans to order forfeiture.

In Dolan v. United States, 130 S. Ct. 2533 (2010), the Court examined a statute that set forth a deadline without specifying a consequence, and provided an analytical construct that is applicable here. There, the district court ordered the defendant, as part of his sentence, to pay restitution to the victim of his crime. Id. at 2537. The governing statute provided, “the court shall set a date for the final determination of
the victim’s losses, not to exceed 90 days after sentencing.” 18 U.S.C. § 3664(d)(5). It was undisputed both that the defendant was on notice that the district court would order restitution and that the district court missed the deadline to order restitution and failed to include an order of restitution in the defendant’s judgment. Dolan, 130 S. Ct. at 2538.

Judge Gregory dissented from the majority’s holding regarding the criminal forfeiture:

Not a single case, published or unpublished, has done what today’s majority does: it holds that even if a punishment of forfeiture is not discussed at sentencing or ordered in judgment, a defendant can still be subject to that punishment if she has notice that such punishment may be ordered.

It is undisputed that the district court did not enter a preliminary order of forfeiture before sentencing and judgment. Nor were proper remedial actions, such as amendment of the sentence pursuant to Rule 35, timely pursued under the Federal Rules of Criminal Procedure. Because the appellants’ sentences became final for purposes of Rule 32.2 before the district court entered the preliminary order of forfeiture, I would hold that the district court did not have authority to enter the preliminary and final orders of forfeiture in 2007 and the amended judgments in 2010, and therefore the district court’s orders and amended judgments should be vacated.

Dolan v. United States, which is the principal precedent that the panel argues about, had an unusual voting line-up. Justice Breyer wrote for a 5-4 majority, joined by Justice Thomas, Justice Ginsburg, Justice Alito, and Justice Sotomayor. Chief Justice Roberts authored a dissent, joined by Justice Stevens, Justice Scalia, and Justice Kennedy.

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The Fourth Circuit today issued two published opinions and a published order. A look at the three together reveals various ways in which one can end up in a published Fourth Circuit opinion or order, none of them very attractive.

Meyer v. Astrue is an appeal about the denial of Social Security disability benefits. In an opinion by Judge Motz, joined in by Judge King and Judge Duncan, the Fourth Circuit reversed the denial of benefits because the court could not determine from review of the record whether substantial evidence supported the denial of benefits. The facts portion of the opinion begins with the sentence: “In December 2004, Meyer fell 25 feet out of a deer stand while hunting and suffered significant injuries.”

Li v. Holder involves a petition for review of an order of the BIA remanding petitioner’s case to the IJ. Li is a Chinese citizen who entered the country illegally, was found to be removable, and was granted a voluntary departure. The BIA upheld a denial of Li’s application for adjustment of status, but remanded for the IJ to grant a new period of voluntary departure to provide certain “required advisals” that the IJ previously failed to provide. Li petitioned for review. The government contended that the Fourth Circuit lacked jurisdiction. The court disagreed based on binding panel precedent that it found had not been disturbed by the Supreme Court’s decision in Dada v. Mukasey, 554 U.S. 1 (2008). The court nevertheless declined jurisdiction on prudential grounds. The opinion is interesting for its discussion of the circumstances under which intervening Supreme Court precedent displaces prior circuit precedent–not often. Judge Agee wrote the opinion, in which Judge Wilkinson and Judge Shedd joined.

The published order today was a public admonishment of a New York attorney based on five violations of the rules of professional misconduct. It seems piling on to repeat the allegations and plaster the attorney’s name around the internet more, so just read the admonishment if you’re interested.

There were a few other unpublished opinions in argued cases, the most notable of which is Haile v. Holder, in which a panel vacated a denial of asylum. The beneficiary of this ruling is a citizen of Eritrea who asserted past persecution and a well-founded fear of future persecution based on her political opinion and her membership in a social group (which was her family, as her father had been persecuted for his political activities). Judge Gregory wrote the opinion, in which Judge Motz and Judge Shedd joined.

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The November 2011 issue of the Virginia Law Review contains an essay by Judge Diana Gribbon Motz of the United States Court of Appeals for the Fourth Circuit entitled The Constitutionality and Advisability of Recess Appointments of Article III Judges. The bottom line appears to be that recess appointments of Article III judges are constitutional but not advisable, although history shows that the arguments against inadvisability are probably overblown. I use “appears to be” as a qualifier because the essay all but affirmatively states that such appointments are constitutional.

Judge Motz begins the essay by noting that she became interested in the topic when President Clinton used a recess appointment to appoint Judge Roger Gregory to the Fourth Circuit.

Apart from the specific topic, the essay is interesting for what it reveals about Judge Motz’s approach to constitutional interpretation (albeit outside of a specifically judicial context): ” Writings surrounding the Constitutional Convention, such as the debates at the Convention, correspondence among the delegates, and contemporaneous writings, including the Federalist Papers—the legislative history, if you will—do provide some assistance.”

After concluding that “the revolutionary era and post-ratification writings are inconclusive as to whether the Recess Appointments  Clause was intended as a limited exception to Article III’s tenure and salary provisions,” Judge Motz turns to historical practice. Judge Motz’s sources in this section are interesting. As precedent for relying on historical practice, Judge Motz points out that the Supreme Court has done so in its Establishment Clause cases (including Marsh v. Chambers). Judge Motz relies heavily on a brief filed by the United States in the Ninth Circuit, and also relies on a Federalist Society publication.

Another interesting aspect of the essay is Judge Motz’s observation, in passing, about the material circumstances giving rise to legal scholarship: “In twentieth century, post-war America, our transportation and communication systems advanced at a dizzying rate, making it far more difficult to find any practical rationale for recess appointments. At the same time, colleges and law schools graduated persons in record numbers. During the booming economy, these graduates (and their teachers) took advantage of the opportunity not available during the depression or in war time to consider esoteric questions like the advisability of recess appointments of federal judges. These factors coalesced into a perfect storm when President Eisenhower made three recess appointments to the Supreme Court.”

As they say, read the whole thing.

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