Woollard, MacDonald, and Standing to Raise a “Facial Challenge”

1. In a previous post, I criticized the Fourth Circuit’s habeas grant in MacDonald v. Moose. The Fourth Circuit held in that case that one textual provision of Virginia’s more encompassing “crimes against nature” statute was facially unconstitutional under Lawrence v. Texas. As my post indicated, and as some comments to the post discussed in detail, the Fourth Circuit was not making this determination de novo but rather under AEDPA’s deferential standard of review for claims adjudicated on the merits in state court proceedings.  The relevant state court determinations in MacDonald were that the statute was constitutional as applied to petitioner’s conduct and that he lacked standing to bring his facial challenge. Here is the reasoning with respect to the facial challenge:

MacDonald contends the sodomy statute, Code § 18.2-361(A), is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment. In accord with our previous decisions, we hold that MacDonald lacks standing to assert this claim. See McDonald v. Commonwealth, 48 Va. App. 325, 329, 630 S.E.2d 754, 756 (2006) (“[W]e will only consider the constitutionality of Code § 18.2-361(A) as applied to appellant’s conduct.”); Singson v. Commonwealth, 46 Va. App. 724, 734, 621 S.E.2d 682, 686 (2005) (defendant lacks standing to challenge statute generally); Tjan v. Commonwealth, 46 Va. App. 698, 706, 621 S.E.2d 669, 673 (2005) (same); see also Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941) (“It is well settled that one challenging the constitutionality of a provision in a statute has the burden of showing that he himself has been injured thereby.”); Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241 (1988) (“generally, a litigant may challenge the constitutionality of a law only as it applies to him or her”).

According to the Fourth Circuit panel opinion, however, one discrete textual provision of Virginia’s statute was facially unconstitutional, and “the state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” (emphasis added).

2. Nine days after the Fourth Circuit issued its opinion in MacDonald v. Moose, the court issued an opinion in Woollard v. Gallagher. Woollard was a Second Amendment challenge to Maryland’s “good and substantial reason” permitting requirement for gun possession outside one’s home. The district court in Woollard had held that this requirement was facially unconstitutional. In addition to rejecting Woollard’s claim that the permitting requirement was unconstitutional as applied to him, the panel opinion held that Woollard lacked standing to bring his facial challenge:

Because we conclude that the good-and-substantial-reason requirement is constitutional under the Second Amendment as applied to Appellee Woollard, we also must reject the Appellees’ facial challenge. See Masciandaro, 638 F.3d at 474. As the Supreme Court has explained, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (“It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.”).

On its face, this reasoning looks just like the reasoning that the Fourth Circuit held was “contrary to and involved and unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” when that reasoning was used by Virginia’s Court of Appeals in MacDonald.

3. The tension between the two cases cannot be explained on the grounds that the Woollard panel was unaware of the recent MacDonald decision. According to the date listed on the opinions, the two appeals were argued on the same day and two out of the three judges were the same in both cases (Judge King and Judge Diaz). And most importantly, Judge King authored both opinions.

4. The doctrine surrounding facial and as-applied challenges is notoriously murky. Some may view it as complex; others may view it as simply confused. In my view, the labels “facial” and “as-applied” hurt more than they help insofar as each lacks a stable meaning across cases. But to the extent that MacDonald’s facial challenge was an overbreadth-type (“bottom-up”) challenge, in which facial unconstitutionality depends on the proportion of unconstitutional applications to constitutional applications, then the reasoning used by the Virginia Court of Appeals in refusing to adjudicate the challenge seems unimpeachable (as the Fourth Circuit’s use of that reasoning in Woollard would seem to indicate). (For a discussion of the distinction between valid-rule  (or “top-down”) facial challenges and overbreadth-type (or “bottom-up”) facial challenges, see Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 931 (2011), a law review article cited by Judge King’s majority opinion in MacDonald.)

5. According to the portion of the appellant’s brief quoted by the panel opinion in MacDonald, the facial challenge in that case was an overbreadth-type challenge:

MacDonald maintains that he possesses standing to pursue his facial challenge under the Due Process Clause because the anti-sodomy provision was rendered unconstitutional by Lawrence. He relies on established Supreme Court authority for the proposition that standing exists: “where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of cases it was originally designed to cover.” Br. of Appellant 14 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

6. Virginia’s petition for en banc review is pending at the court. Its principal focus is the application of 2254(d) with respect to the state court’s as-applied understanding of Lawrence v. Texas. If the Fourth Circuit does grant en banc review, perhaps it will also take the opportunity to clarify the law surrounding facial and as-applied challenges more generally.

Read Full Post »

The Fourth Circuit’s obviously (and profoundly) mistaken habeas grant premised on the alleged facial unconstitutionality of Virginia’s “anti-sodomy provision”

[UPDATE: Additional discussion at Woollard, MacDonald, and Standing to Raise a "Facial Challenge" and here.]

A split panel of the Fourth Circuit yesterday granted habeas relief to a forty-seven year-old Virginia man convicted of criminally soliciting oral sex from a seventeen year-old girl. (HT and with link to AP coverage: Howard Bashman at How Appealing) The court held that the conviction was invalid because the predicate felony of sodomy was based on an unconstitutional provision of state law. Judge King wrote the opinion for the court in MacDonald v. Moose, in which Judge Motz joined. Judge Diaz dissented.

The panel majority reasons that the Virginia “anti-sodomy provision” is facially unconstitutional under Lawrence v. Texas because of Lawrence’s reasoning about Bowers v. Hardwick, which the Fourth Circuit describes as having involved a facial challenge to a materially indistinguishable Georgia statute. According to the panel opinion, “the invalid Georgia statute in Bowers is materially indistinguishable from the [Virginia] anti-sodomy provision being challenged here.” And although the Supreme Court upheld the materially indistinguishable Georgia statute against a facial constitutional challenge in Bowers, the Supreme Court in Lawrence v. Texas “recognized that the facial due process challenge in Bowers was wrongly decided.”  In other words (as Judge Diaz fairly reconstructs the majority’s argument in his dissent), “the majority reasons that MacDonald’s facial challenge must succeed just as–according to Lawrence–the facial challenge in Bowers should have.”

This decision is obviously mistaken about Bowers and Lawrence, and profoundly mistaken about the nature of constitutional adjudication.

To begin with, Bowers did not involve a “facial due process challenge.” The opinion for the Court in Bowers explicitly states: “The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” This mistake alone renders the Fourth Circuit’s reasoning unsustainable on its own terms. The panel opinion reasons that the Virginia statute is facially unconstitutional because the Georgia statute is facially unconstitutional, but Bowers simply did not deal with the alleged facial unconstitutionality of Georgia’s statute.

The Fourth Circuit’s majority opinion is also wrong to describe Lawrence as resolving a claim of facial unconstitutionality. The panel majority’s misapprehension of this decision can be seen in the way the panel describes the three questions presented in Lawrence:

(1) whether the criminalization of strictly homosexual sodomy violated the Equal Protection Clause of the Fourteenth Amendment; (2) more broadly, whether criminalization of sodomy per se between consenting adults contravened the fundamental liberty and privacy interests protected by the Fourteenth Amendment’s Due Process Clause; and (3) whether Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld against facial challenge a Georgia statute criminalizing all sodomy, should be overruled.

The panel opinion’s paraphrase of the first two questions presented materially changes both of those questions (and I have already explained what is wrong with the description of the third question). The Supreme Court actually undertook to address the narrower questions “[w]hether petitioners’ criminal convictions” violated the Fourteenth Amendment’s requirements of equal protection or due process. Under the Supreme Court’s formulation, the alleged violations of the Constitution inhere in petitioners’ convictions, not in the state’s legislation. And the Court’s supporting reasoning throughout the opinion is all about the petitioners’ personal interests in liberty and privacy.

As if to underscore the personal nature of the rights at issue and the importance of this as-applied understanding to its framing of the analysis, the portion of the Lawrence opinion for the Court that describes the questions presented concludes: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.” And in concluding the opinion as a whole, Justice Kennedy highlights again that “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Instead, the case involved “two adults” who engaged in sexual practices “with full and mutual consent from each other.”

Mr. MacDonald’s criminal solicitation did not involve two adults, but did involve a minor in a relationship “where consent might not easily be refused.” Yet the Fourth Circuit’s misreading of Bowers and Lawrence as involving facial invalidation permits what Virginia law has forbidden.

In light of the panel majority’s mistaken characterizations of both Bowers and Lawrence, the panel majority should not have been “confident” that Virginia’s “anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.” And at the very least, the panel majority should not have dismissed Judge Diaz’s conclusion that the Virginia courts had not made a decision that was contrary to or involved an unreasonable application of clearly established federal law. The panel majority’s reasoning would not have been sufficient to reverse a federal district court on direct appeal, much less displace a state appellate ruling under AEDPA’s standard of review.

There is more that could be said in criticism of the panel majority’s opinion (such as with respect to its misapplication of Ayotte v. Planned Parenthood). But I hope such criticisms will be rendered unnecessary by the grant of en banc rehearing.

The odds of such rehearing are never good, of course, and Virginia has an even steeper uphill climb given the panel composition and the composition of the en banc court. Yet it is no small thing for the Fourth Circuit panel to do what it did here, and the defects in analysis are not difficult to see. Moreover, there are both narrower ways (like Judge Diaz’s) and also broader ways of affirming the district court’s denial of habeas relief.

Whether or not the Fourth Circuit grants rehearing, however, it is worth mentioning a more fundamental problem with the panel majority’s conception of constitutional adjudication, a problem that will remain even if this opinion’s particular manifestation of the problem is deprived of legal effect by the grant of en banc rehearing. That problem is the legislative conception of judicial review inherent in its description of the effect of constitutional adjudication.

In the panel majority’s view, the so-called anti-sodomy provision in Virginia law “does not survive the Lawrence decision.” The panel reasons that– because Lawrence killed this provision–the underlying prosecution was not for solicitation of a felony but rather for solicitation of “an act that is not, at the moment, a crime in Virginia.” Indeed, the panel majority states, ” [t]he Commonwealth may as well have charged MacDonald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot.” But this is all wrong. Supreme Court decisions about constitutional matters do not decriminalize acts or change state legal codes. Supreme Court decisions may render certain state actions unconstitutional. But such judicial decisions (whether by the Supreme Court or any other federal court for that matter) cannot and do not change what is and is not criminal under state law. Yet that is precisely the effect attributed by the panel opinion to the Supreme Court’s decision in Lawrence.

The panel opinion is right that “the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal . . .” But the Commonwealth did no such thing. It declared conduct criminal through ordinary legislation, and the Fourth Circuit has now erroneously set aside a conviction for violation of that ordinary state legislation through an extraordinary exercise of the federal judicial power.

Read Full Post »

No problems with pregnancy centers in Montgomery County, but there ought to be a law?

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.

Read Full Post »

Artful characterization of allegedly misleading advertisement in Baltimore pregnancy center oral argument

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.]

Read Full Post »

Report from en banc Fourth Circuit oral argument in pregnancy center compelled speech cases

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.

Read Full Post »

Pregnancy centers win free speech victories over Baltimore and Montgomery County in Fourth Circuit

A split panel of the Fourth Circuit has handed First Amendment victories to pro-life pregnancy resource centers in the City of Baltimore and Montgomery County, Maryland. The decisions in these two cases hold that Baltimore and Montgomery County violated the First Amendment by requiring pregnancy resource centers to post signs indicating that their services were limited in certain ways. The majority opinions in Greater Baltimore Center for Pregnancy Concerns Inc. v. Baltimore and Centro Tepeyac v. Montgomery County reason that these ordinances compel noncommercial speech and fail strict scrutiny. Judge Niemeyer wrote the majority opinions in both cases, in which Judge Agee joined. Judge King dissented in both cases. (For my coverage of the oral argument in these appeals, see here. Howard Bashman has links to early news coverage at How Appealing.)

There is much that one can say about these cases as a matter of First Amendment law. But in this post I want to highlight some of the court dynamics revealed in the opinions.

First, this kind of panel alignment is one that has led to en banc reconsideration in the recent past. For example, Judge Niemeyer wrote the panel opinions in two Abu Ghraib contractor cases that were joined in by another Republican appointee and that drew a procedurally focused dissent from Judge King. But I would be surprised if the Fourth Circuit were to take these First Amendment cases en banc. Much of Judge King’s dissents in these two cases focus on case-specific things rather than basic principles of First Amendment law. And the ordinances do appear to have a “least restrictive means” problem, at a minimum.

Second, some of Judge King’s language in dissent is arresting. The concluding sentence of the introduction to Judge King’s dissent in the Baltimore case is particularly strongly worded: “Because these proceedings have thus followed a course more fitting a kangaroo court than a court of the United States, I write separately in dissent.” This “kangaroo court” accusation is much harsher than language that the Fourth Circuit itself  has sharply criticized when used by counsel. See, for example, footnote 4 of United States v. Venable, which was joined in by Judge King.

Read Full Post »

CA4 vacates and remands two from EDVA today: one on FCA and one on NEPA

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.

Read Full Post »

Somali pirates lose on appeal: Fourth Circuit affirms piracy convictions in U.S.S. Nicholas prosecution and reverses dismissal of piracy count in U.S.S. Ashland prosecution

The Fourth Circuit today issued published opinions in piracy prosecutions arising out of foiled attacks on the U.S.S. Ashland and the U.S.S. Nicholas. In both, the federal government won and the pirates lost.

The principal opinion, United States v. Dire, affirms the convictions and life-plus sentences of the Somali defendants against several challenges, including the claim “that their fleeting and fruitless strike on the Nicholas did not, as a matter of law, amount to a § 1651 piracy offense.” Judge King wrote the opinion for the Court, in which Judge Davis and Judge Keenan joined.

The other opinion, United States v. Said, vacates the dismissal of the § 1651 piracy count in the prosecution arising out of the attack on the U.S.S. Ashland. Judge King wrote the opinion for the Court, in which Judge Davis and Judge Keenan joined.

The Dire decision is a ringing endorsement of the thorough analysis provided by Judge Mark Davis (EDVA) earlier in the case. See United States v. Hasan, 747 F. Supp. 2d 599 (EDVA 2010). The Fourth Circuit’s opinion states: “Simply put, we agree with the conception of the law outlined by the court below. Indeed, we have carefully considered the defendants’ appellate contentions–endorsed by the amicus curiae brief submitted on their behalf [filed by counsel for the Said defendants]–yet remain convinced of the correctness of the trial court’s analysis.”

Read Full Post »

CA4: Anti-MLS Complaints State a Claim Under Section 1 of the Sherman Act

The Fourth Circuit held today in Robertson v. Sea Pines Real Estate that putative class actions challenging two MLS services in South Carolina under Section 1 of the Sherman Act could go forward. On interlocutory appeal, the appeals court affirmed denial of the defendants’ motion to dismiss. Judge Wilkinson wrote the opinion for the Court, in which Judge King and Judge Agee joined. The decision is notable not only for its discussion of Section 1 caselaw, but also for its application of Twiqbal.

Read Full Post »

Fourth Circuit dismisses Abu Ghraib military contractor appeal for lack of appellate jurisdiction

By 11-3 vote, the en banc Fourth Circuit in Al Shimari v. CACI International has dismissed the consolidated appeals of military contractors who worked at Abu Ghraib and other locations in Iraq. The contractors had appealed from the denial of their motions to dismiss claims brought by Iraqi nationals. The defendants’ motions to dismiss were premised on various grounds related to their status as military contractors in a theatre of armed conflict.

Judge King wrote the opinion for the court, in which Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and Floyd joined.

Judge Duncan authored a concurring opinion, in which Judge Agee joined, urging the district courts to “give due consideration to the appellants’ immunity and preemption arguments . . . which are far from lacking in force.”

Judge Wynn wrote a concurrence emphasizing that the court’s jurisdictional opinion “offers no guidance to the district court on the underlying merits of these matters.” (While this is true as a technical matter, the lawyers on both sides will undoubtedly parse the language very closely for future use in the litigation.)

Judge Wilkinson, Judge Niemeyer, and Judge Shedd dissented. Their grounds for dissent were set forth in dissenting opinions by Judge Niemeyer and Judge Wilkinson.

All told, the opinions take up 114 pages. It will take some time to digest them. In the normal case, the dismissal of appeals for lack of jurisdiction would mean the decisions go back down to the district court. But these consolidated cases are not normal cases, and they very well could end up in the Supreme Court next Term. If the contractors do seek Supreme Court review, that will place the Obama Administration in an awkward position given the “equivocal” nature of the position the federal government has thus far taken in the litigation (as observed by various Fourth Circuit judges at oral argument).

For some flavor of the passion aroused by this jurisdictional ruling, consider the following excerpts from the opening of Judge Wilkinson’s dissent:

The actions here are styled as traditional ones and wrapped in the venerable clothing of the common law. Even on common law terms, however, they are demonstrably incorrect, and the impact which tort doctrine will have on military operations and international relations magnifies the difficulties immeasurably. I dare say none of us have seen any litigation quite like this and we default if we accept uncritically or entertain indefinitely this novel a violation of the most basic and customary precepts of both common and constitutional law.

Sadly, the majority’s opinion does precisely this. After reading its decision, one could be forgiven for thinking that the issue before us is a simple jurisdictional question arising out of ordinary tort suits. But these are not routine appeals that can be quickly dismissed through some rote application of the collateral order doctrine. This case instead requires us to decide whether the contractors who assist our military on the battlefield will be held accountable through tort or contract, and that seemingly sleepy question of common law remedies goes to the heart of our constitutional separation of powers. Tort suits place the oversight of military operations in an unelected judiciary, contract law in a politically accountable executive. And in the absence of some contrary expression on the part of the Article I legislative branch, the basic principles of Article II require that contractual, not tort, remedies apply.

The majority emphatically decides this weighty question by pretending not to decide, as its dismissal of these appeals gives individual district courts the green light to subject military operations to the most serious drawbacks of tort litigation. But arrogating power to the Third Branch in a contest over military authority is the wrong call under our Constitution, and there is no garb for this decision so benign as to obscure the import of what the majority has done.

We tread this territory at our peril. This decision is contrary to decades of Supreme Court admonitions warning federal courts off interference with international relations. Of course military contractors should be held accountable, and it is important that a framework be set in place to accomplish this task. But instead of establishing that framework, the majority succumbs to mere drift and in so doing places courts in the most damaging and least defensible legal landscape possible. None of us have any idea where exactly all this is headed or whether the damage inflicted on military operations will be only marginal or truly severe. At a minimum, however, today’s decision breaches a line that was respected by our predecessors on courts high and low. I would not cross this boundary even if the collateral order doctrine could cloak my steps. With all respect for my fine colleagues, I would remand these actions to the district court with direction that they be dismissed.

Read Full Post »

Fourth Circuit nixes EEOC ADA claim based on conflict with SSDI representations

A divided Fourth Circuit panel yesterday affirmed the grant of summary judgment to an employer who refused to rehire to the same position an employee who went on disability leave. The decision turned on the application of Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), in which the Supreme Court addressed how courts should assess an ADA claim brought by an individual who has applied for and received Social Security Disability Insurance (SSDI) benefits.

Judge O’Grady (EDVA, sitting by designation) authored the unpublished opinion for the court in EEOC v. Greater Baltimore Medical Center, Inc., in which Judge Keenan joined. Judge Gregory wrote a dissenting opinion.

Although unpublished, the decision appears to be the first in which the Fourth Circuit has held that the Supreme Court’s decision in Cleveland applies not only to actions brought by individuals who have applied for and received SSDI, but also to actions brought by the EEOC on behalf of such individuals.

Read Full Post »

Where are the Fourth Circuit’s piracy decisions?

As the United States and a new Somali defendant gear up for trial this week in front of Judge Doumar, one question is on the mind of all concerned: Where are the Fourth Circuit’s piracy decisions?

The Fourth Circuit has been considering the definition of piracy for over a year now. Last spring, a three-judge panel consisting of Judge King, Judge Davis, and Judge Keenan heard oral arguments in an appeal arising out of an attack on the U.S.S. Ashland. Last September, the same panel heard oral arguments in an appeal arising out of an attack on the U.S.S. Nicholas. At the time of the Nicholas arguments, it appeared that the panel had put the case on some sort of fast track after the Ashland appeal was caught up in some procedural confusion. But the Nicholas appeal has not been quickly resolved even though, as I have previously argued, the procedural issue that seemed to dog the Ashland appeal has been resolved  by a different panel in a different case.

Regardless of the outcome of the Ashland appeal, it is curious that the decision in the Nicholas appeal has not yet been issued. Various judges on the panel did show interest at oral argument in issues beyond the definition of piracy, such as the extraterritorial application of Miranda and the unit of prosecution under 924(c). But the panel did not press the government very hard on the definition-of-piracy issues, as one would expect if the judges’ pre-argument review of the case pointed toward a ruling against the government.

There can be many reasons for the passage of so much time without a decision. And in big cases, the decisions can take a long time. Perhaps the panel is deeply fractured on one or more of the issues. Perhaps the judges have been busy working on other cases (as seems to be at least part of the explanation given lengthy or controversial opinions that have been released in recent months by the panel members in other cases). Or perhaps the opinion or opinions at issue raise knotty questions about other aspects of the Fourth Circuit’s case law that need to be smoothed out. At this point, it is all speculative from the outside.

That speculation could start building if more stories like yesterday’s AP story about the upcoming piracy trial begin to appear. As the story explains, ”[t]he trial of a Somali man U.S. authorities consider the highest-ranking pirate they have ever captured will begin this week in Virginia under a cloud of uncertainty about what the definition of piracy is.” Part of the uncertainty is whether the crime of piracy requires that the pirate actually took possession of the target ship, committing robbery at sea. Two district courts have gone different ways on that question. These are the two cases currently on appeal to the Fourth Circuit.

Read Full Post »

Cell carriers and localities split victories in Fourth Circuit cell-tower cases

T-Mobile won yesterday in the Fourth Circuit, while New Cingular Wireless lost last week in the same court. Both cases involved challenges to the denial of applications to erect cell towers in localities. Both appeals resulted in affirmances of the relevant district court decision, supporting the appellate court’s description of these kinds of cases as fact-intensive.

Judge Diaz wrote yesterday’s opinion for the court in T-Mobile Northeast LLC v. Newport News, in which Judge King and Judge Gergel (DSC) joined.

Judge Agee wrote the opinion for the court in New Cingular Wireless, PCS, LLC v. Fairfax County Board of Supervisors, in which Judge Davis and Judge Floyd joined.

Read Full Post »

Fourth Circuit affirms dismissal of Jeremy Mayfield’s claims against NASCAR

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.

Read Full Post »

Report from oral argument in Fourth Circuit appeals of First Amendment wins by pregnancy resource centers in Maryland

A Fourth Circuit panel consisting of Judge Niemeyer, Judge King, and Judge Agee heard oral arguments yesterday in two First Amendment challenges brought by pregnancy resource centers in Maryland. I attended both arguments. From the content and tenor of the proceedings, it seems very likely that the court will affirm the two district courts whose rulings were at issue, both of which held that ordinances compelling speech by pregnancy resource centers violate the First Amendment.

Read Full Post »

Fourth Circuit dismisses as non-justiciable NEPA challenge to I-81 improvement plans

Last Friday, the Fourth Circuit dismissed as non-justiciable the appeal of a judgment in a challenge to potential improvements to specific sections of I-81. Judge Wilkinson wrote the opinion for the Court in Shenandoah Valley Network v. Capka, which was joined in by Judge King and Judge Keenan. The I-81 improvement project will take place in two tiers. This litigation arose at the end of Tier 1, before Tier 2 had run its course. The nub of the dispute was the extent to which decisions made at Tier 1 would foreclose consideration of alternatives at Tier 2. The court concluded that the appellants were mistaken about the extent of foreclosure at Tier 2. The court was satisfied that, once the parties’ positions were clear, there was no actual dispute giving rise to a case or controversy. Accordingly, dismissal was warranted: “Because such [an actual] dispute is lacking here–and because we cannot issue an advisory opinion–we have no authority to adjudicate this suit.” The court also cashed out its justiciability conclusion in standing terms: There was no injury or threat of imminent injury.

One interesting feature of the decision comes in a footnote at the end, in which the court notes that it would not order vacatur of the district court’s judgment: “The gist of the district court’s ruling is that the review process should be allowed to move beyond Tier 1 to Tier 2. Because vacatur is an equitable remedy, U.S. Bancorp Mortg. Co. v. Bonner Mall P’Ship, 513 U.S. 18, 29 (1994), and because the balance of factors reveals no good reason to vacate the district court’s ruling, we decline to do so.” This reasoning, and the court’s careful phrasing of the justiciability problem (i.e., “there remains nothing to dispute” and “no justiciable controversy lingers”) suggests that the justiciability problem was not a pure standing issue, but some combination of mootness (of claims about Tier 1) and ripeness (of claims about Tier 2) .

Read Full Post »

Fourth Circuit affirms 240-month sentence imposed after upward departures and an upward variance from advisory Guidelines range of 57-71 months

The Fourth Circuit today issued a published opinion affirming imposition of statutory maximum sentence of 240 months on an offender who started with an advisory Guidelines range of 57 to 71 months. The ultimate sentence resulted from two upward departures and an upward variance.

Judge King wrote the opinion in United States v. Rivera-Santana, which was joined in by Judge Wilkinson and Judge Diaz.

Judge Payne was the sentencing judge. In justifying the upward variance, Judge Payne observed of the defendant:

This man has proved for years that he is a danger to society. He has proved for years that he has no respect for the law. He was proved for years that it is necessary to take strong action to protect the public. A man who will kill his wife, pregnant wife, and kill his own child and molest his granddaughter has no respect for the law and is a menace and . . . a proven danger to the public, to the citizenry of the nation that he has chosen on multiple occasions illegally to invade, and when he comes here, he violates all kinds of laws, any kind of law that stands in the way of accomplishing what he wants to do.

If he wants to gratify himself, he plunders an eight-year-old child. If he wants to have some company or make some money, he smuggles illegal aliens. He gets deported, he comes right back. He drives drunk. He steals, he beats. He is, in short, an anathema to society.

Read Full Post »

Report on Fourth Circuit en banc oral argument in Abu Ghraib contractor appeals

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.

Read Full Post »

Fourth Circuit affirms denial of discovery into selective prosecution claim related to Project Exile in RVA

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.

Read Full Post »

Two published opinions from the Fourth Circuit yesterday in argued cases

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.

Read Full Post »

Five from the Fourth: new published opinions on ERISA, immunity, debt collection, arbitration, and immigration

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.)

Read Full Post »

Fourth Circuit issues lengthy disquisition on Confrontation Clause implications of DNA evidence admitted through lab supervisor testimony about report based on tests performed by non-testifying others in the lab

The Fourth Circuit’s opinion today in United States v. Summers contains a lengthy Confrontation Clause analysis stemming from the government’s introduction of the testimony and report of a DNA lab supervisor who testified and prepared his report on the basis of tests performed by others in the lab (who were not present to testify). Judge King wrote the opinion, which was joined in by Judge Shedd. Judge Floyd concurred in the judgment.

Judge King’s analysis discusses Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico, among other opinions.

Judge Floyd contends that the majority should not have reached the Confrontation Clause issues because any error was harmless. The majority agreed that the error was harmless, but only as an alternative holding after concluding that there was no error. The majority does, however, question the wisdom of the prosecution’s introduction of the DNA evidence. The point of introducing the evidence was to link a black NorthFace jacket to the defendant. The defendant was allegedly wearing the jacket before running from police. When they apprehended him, he was not wearing any jacket, but the police found a jacket (containing a handgun and lots of crack cocaine in its pockets) on the roof of a residence along the defendant’s flight path. Here’s what the majority says about the need for the DNA evidence:

[W]e cannot help but note that the government’s decision to introduce DNA evidence derived from the jacket had the unintended collateral effect of rendering a straightforward case significantly more complex. With respect to proving ownership of the jacket, the evidence introduced through Shea was scarcely more than the thin glaze on a dense cake baked to doneness by the officers’ largely unshakable testimony that: (1) Summers was wearing the jacket before he ran; (2) he was not wearing the jacket when he was caught; and (3) the jacket was found in the immediate vicinity of his flight path. Although we suppose that the jury could have been impressed that Quantico weighed in on the issue, we hardly think that the government needed to rely on the FBI’s star power to prevail in its open-and-shut case. Even had the district court’s admission of Shea’s report constituted error, it would surely be harmless beyond a reasonable doubt.

Read Full Post »

Can judicial inquiry into “good faith” under Leon rely on uncontroverted facts outside the affidavit? Fourth Circuit says yes, notes 4-2 circuit split.

The Fourth Circuit issued an opinion today unanimously affirming the district court in United States v. McKenzie-Gude. Judge Motz wrote the opinion, which was joined in by Judge King and Judge Duncan. The appeal focused on the legality of a search of a residence where the defendant, 18 years old at the time, allegedly possessed an AK-47 and explosive chemicals. The police obtained a warrant and ultimately seized from the defendant’s bedroom “several weapons, assorted gun parts, two bullet-proof vests, hundreds of rounds of ammunition, chemicals and other materials that could be used to make explosive devices, and instructions for making such devices.”

The problem with the search is that the affidavit in support of the warrant never linked the address of the residence to be searched (which was in the affidavit) with the defendant (who was linked in the affidavit with past possession of an AK-47 and explosive chemicals). The residence to be searched was the defendant’s residence, but the affidavit never said so. At the same time, uncontroverted information known to the police indicated that the defendant resided at the address to be searched.

The government conceded that the affidavit lacked the necessary connection between the defendant and the residence to be searched, but argued under Leon that the officers executing the warrant “harbored an objectively reasonable belief in the existence” of the link between the defendant’s alleged criminal activity and the residence to be searched. If the officers were entitled to rely not only on the affidavit but also additional evidence known to them, the answer to that question is obviously yes. According to the Fourth Circuit, then, “the question before us is whether, in determining an officer’s good faith, a court may properly look beyond the facts stated in the affidavit and consider uncontroverted facts known to the officers but inadvertently not disclosed to the magistrate.” The court answered that question in the affirmative, stating that “[w]e have consistently rejected the notion that reviewing courts may not look outside the four corners of a deficient affidavit when determining, in light of all the circumstances, whether an officer’s reliance on the issuing warrant was objectively reasonable.”

The court notes in a footnote that the Sixth Circuit and Ninth Circuit have held that Leon good faith reliance can be measured only by what is in an officer’s affidavit. By contrast, the Seventh, Eighth, and Eleventh Circuits have adopted the rule followed by the Fourth Circuit.

Read Full Post »

Fourth Circuit affirms denial of suppression motion, recognizing limits to recent suppression holdings

The federal government has had difficulty beating back suppression motions in the Fourth Circuit this past year. Last week, however, a panel unanimously affirmed the denial of a suppression motion. Judge Wilkinson wrote the opinion in United States v. Glover, which was joined in by Judge King and Judge Diaz. (Attentive readers may also have noted that Judge Wilkinson authored the majority opinion in United States v. Braxton a couple of weeks ago, also affirming denial of a suppression motion–that time, over the dissent of Judge Wynn.)

The opinion begins as follows:

Paul Glover entered a conditional plea of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals the denial of his motion to suppress evidence obtained during a stop-and-frisk in a deserted gas station parking lot in the wee hours of the morning. For the reasons that follow, we affirm the district court’s denial of Glover’s suppression motion.

The stop-and-frisk here occurred after officers observed the defendant lurking outside of the range of the closed circuit cameras at a 24-hour service station at around 4:40 a.m. Judge Wilkinson writes that the circumstances facing the officers were far different than those in United States v. Foster, 634 F.3d 243 (4th Cir. 2011), which “concerned the stop of  a driver believed to be involved in drug activity in the middle of the day in a low-crime area.”

With respect to police reliance on nervous behavior, which the Fourth Circuit criticized in United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011), Judge Wilkinson wrote:

While it is important not to overplay a suspect’s nervous behavior in situations where citizens would normally be expected to be upset, see United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011), Glover was furtively watching the attendant from a location outside the range of surveillance cameras, glancing around the corner, and pulling his head back well before Officers Skipper and Archer stopped the patrol car. Such conduct is far more like the casing of the store in Terry than the case of nerves a citizen might ordinarily exhibit in interactions with police.

Read Full Post »

Fourth Circuit joins Seventh and First in holding that bankruptcy court order denying motion to dismiss as abusive under § 707(b) is a final order

The Fourth Circuit held unanimously earlier this week in McDow v. Dudley that a bankruptcy court’s order denying a motion to dismiss as abusive under § 707(b) is an appealable final order. Judge Niemeyer wrote the opinion for the Court, which was joined in by Judge King and Judge Agee.

Read Full Post »