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Posts Tagged ‘Wilkinson’

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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The Fourth Circuit issued its opinions yesterday in two pregnancy center compelled speech cases: Centro Tepeyac v. Montgomery County and Greater Baltimore Center for Pregnancy Concerns, Inc. v. Baltimore. The decisions tracked the tentative predictions I made after observing oral argument: a narrow, procedure-based decision to vacate and remand the permanent injunction against enforcement in the Baltimore case, and affirmance of the preliminary injunction against enforcement in the Montgomery case.

In the Baltimore case, Judge King wrote for an eight-judge majority (consisting of himself, Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker). Judge Niemeyer authored a dissenting opinion, in which Judges Wilkinson, Shedd, and Agee joined. Judge Wilkinson authored a separate dissent.

In the Montgomery County case, Judge King wrote for a nine an eleven-judge majority. Judge Gregory and Judge Davis, who did not hear the Baltimore case, joined the judges from the Baltimore case, as did Judge Wilkinson. In addition to joining Judge King’s opinion, Judge Wilkinson wrote a solo concurrence. Judges Niemeyer, Shedd, and Agee dissented. [Editorial note: This paragraph edited from the original version to correct error noted in the first comment.]

The combined opinions add up to about 140 pages and it’s July 4th, so detailed legal analysis will have to wait.

With respect to First Amendment law standing alone, my preliminary impression is that the decisions have the potential to inject confusion into what should otherwise be a straightforward application of First Amendment law for these ordinances. As Judge Wilkinson notes in his Greater Baltimore dissent, “[t]here has never been any dispute that the Ordinance forces organizations like the Center to communicate a message they would otherwise never utter. Given the dangers of compelled speech, this kind of mandated disclosure should be a last resort, not a first recourse.” Yet the majority opinion remands to allow Baltimore to try to establish that its ordinance was somehow a regulation of commercial speech. In support of this decision, the court provides a diffuse statement of the law surrounding commercial speech. The opinion does not endorse the application of the standard of review appropriate to commercial speech but instead asserts that the district court erred by rejecting application of this standard of review based on insufficient facts.

Instead of training its analysis on the speech actually regulated–the speech that takes place in the centers where the government-ordered messages must be posted–the majority opinion sweeps in the need for considering things like “the scope and content of [the Center's] advertisements.” This focus apparently derives from Fargo Women’s Health Organization, Inc. v. Larson, 381 N.W. 2d 176 (1986), which the majority discusses in detail. But that case dealt with a preliminary injunction that prohibited deceptive advertising rather than legislation compelling delivery of the government’s message in conjunction with in-person speech about pregnancy. Indeed, the North Dakota Supreme Court struck out the compelled-speech portion of the underlying injunction in Larson even though–unlike the Baltimore and Montgomery County ordinances–that injunction directly regulated advertising rather than the in-person provision of information. (It may also be worth noting that this non-binding decision of the North Dakota Supreme Court predated the binding decision of the Supreme Court of the United States discussing the boundaries of commercial speech doctrine in Riley v. National Federation of the Blind, 487 U.S. 781 (1988).)

Although en banc rehearing is typically reserved for “questions of exceptional importance” (FRAP 35), it does not follow that en banc decisions actually resolve questions of exceptional importance. The Greater Baltimore decision does not. From the perspective of First Amendment law, its principal defect is failure to delineate the operative legal principles for separating commercial speech from non-commercial speech and explain why those principles called for the kind of discovery it thought necessary. To the extent that it does discuss these principles, the majority’s analysis drifts from focus on the nature of the speech directly burdened by the in-center positing requirement. But this drift is largely a consequence of its focus on discovery and procedure rather than elaboration of First Amendment law. Hopefully the opinion’s diffuse discussion of commercial speech doctrine may at least avoid doing serious damage to First Amendment law precisely because it is so diffuse.

Nor does the Centro Tepeyac decision resolve any questions of exceptional importance. Its affirmance of the district court’s conclusion that strict scrutiny applies to the challenged ordinance is noteworthy but uncontroversial. Had it not relied so heavily on the “abuse of discretion” standard of review, parts of that opinion would be more problematic. The challengers bore the burden of showing a likelihood of success on the merits, but once the court properly recognized that strict scrutiny was necessary, it should have required the government to demonstrate narrow tailoring. It did so, in part. But as Judge Niemeyer points out in dissent, this should have included consideration of less restrictive alternatives to compelled speech for both sentences of the compelled speech.

Given how little these decisions actually decided as a matter of First Amendment law, it seems the principal legal effect of the court’s en banc consideration in that area was to deprive the panel opinions in these cases of their precedential force. As someone who thinks those panel opinions were correctly decided in the first instance, that consequence is unfortunate. But the litigation will continue. And barring some surprising fact development or substantial change in governing law, I remain hopeful that the cases will ultimately end up yielding results close to the initial panel decisions.

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John Coleman filed a FOIA request seeking some information from the DEA. The DEA eventually denied the request. But it took a really long time to do so. And when the DEA finally responded, they blamed Coleman because he did not prepay a certain fee. When Coleman sued the DEA in federal court to get the information he requested under FOIA, the DEA said he should lose because he had not exhausted his administrative remedies. The district court agreed with the DEA. Today, the Fourth Circuit decided Coleman’s appeal. The first sentence of the second paragraph of Judge Wilkinson’s opinion for the court in Coleman v. DEA states: “Having exhausted the litigant, the DEA proceeded to argue that it was Coleman who had failed to pay its fee request for a preliminary search of the documents and to exhaust his administrative remedies.” Who do you think won the appeal?

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The Fourth Circuit today affirmed the grant of summary judgment to Chesterfield County (VA) on free speech, free exercise, RLUIPA, and equal protection challenges brought by Patricia Moore-King. Ms. Moore-King, who practices spiritual counseling as Psychic Sophie, had challenged various Chesterfield County licensing and zoning restrictions that apply to her because she fits within the County Code’s definition of a “fortune-teller.” (For news coverage of the oral argument, see here.) Judge Duncan wrote the opinion for the court, in which Chief Judge Traxler and Judge Wilkinson joined.

From a doctrinal perspective, two noteworthy aspects of  Moore-King v. County of Chesterfield are its discussion of the professional speech doctrine and its analysis of the difference between “religion” and a “way of life.”

With respect to professional speech, Judge Duncan writes that “the relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providing personalized advice in a private setting to a paying client or instead engages in public discussion and commentary.”

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

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Times were different in 2006 when Judge Wilkinson wrote the Duke Law Journal piece excerpted below, Gay Rights and American Constitutionalism: What’s a Constitution For?

The California Supreme Court had not yet construed that State’s constitution to provide a right to same-sex marriage. But the citizens of Virginia were considering an amendment to that State’s constitution (an amendment that ultimately passed).

Judge Wilkinson argued against using a constitutional amendment as a ” preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say.” He thought that “it would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience.” And  “[i]t would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.” Because “Lawrence and Romer are a far cry from this momentous step,” he argued, a constitutional amendment “would simply indulge the worst suspicions about the Supreme Court, preempting a decision that may never come.”

Some additional excerpts:

A tragedy is befalling American constitutional law. Both left and right in the gay rights struggle have indiscriminately indulged the impulse to constitutionalize.

* * *

Lawrence has been taken to task for overblown rhetoric, its overruling of precedent, its repudiation of traditional moral values, its reliance on unenumerated rights, and its resort to foreign law, most especially a decision of the European Court of Human Rights. Still, the result in Lawrence is eminently just and humane; the real flaw of the decision was to set the struggle over gay rights on a constitutional course. The Court’s lack of faith and trust in democracy was endemic. * * * [D]emocracy itself was on a decent and humane path, and the Court’s decision to preempt it with a problematic constitutional pronouncement was dangerously shortsighted.

* * *

It would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience. It would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.

* * *

The marriage amendment phenomenon then can only be viewed as a preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say. This is an insufficient basis on which to amend foundational texts like state constitutions. A constitutional amendment is not by nature a preemptive device. It is instead an extraordinary mechanism–a tool of last resort properly reserved for situations which present no other choice. To amend a constitution preemptively, in anticipation of the proverbial rainy day, is, simply put, gratuitous. Such needless use of the amendment process is antithetical to the very essence of constitutional lawmaking and to the notion of a fundamental, guiding, and multigenerational charter. * * * Although a state with no other recourse is surely justified in responding to an activist constitutional interpretation, gratuitous amendments to our most basic documents of governance are hurtful and alienating in a way all their own.

* * *

It is the job of legislatures, not constitutions, to reflect evolving standards and to register change from whatever direction it may arrive. Statutes are more amenable to adjustment and modification than constitutional provisions are. And American constitutional tradition has always preserved for majorities the right to overrule courts on policy matters through statutory amendment rather than through the cumbersome process of constitutional change.

* * *

This difference between constitutional and statutory law bears quite directly on the question of gay rights. No constitution should ever assign its citizens pariah status. No constitution should relegate its citizens so symbolically and semipermanently to the shadows of national life. As a matter of statute, however, the balance changes. Statutes exist for the expression of values central to the imperative of social cohesion. Statutes legitimately articulate within limits a community’s aspirations for marriage, the raising of children, and the conduct of family life. It is in this difference between constitutional and statutory law that America strikes the balance between claims of personal rights and assertions of community prerogative.

* * *

[T]he chief casualty of the same-sex marriage debate has been the American constitutional tradition. Although electorates understandably are more concerned with results than with process, the Framers were concerned supremely with process, and that process has made possible our civility, self-governance, and greatness as a democratic nation. * * * It is not wrong for gay citizens to wish to share fully in the life of this country, to partake of its most basic and sacred institution, and to experience the intimacy, bonding, and devotion to another that only an institution such as marriage can bring. To embrace this view one need not believe that sexual infidelities will disappear, but only that many gay couples will make good on their vows and lead fuller, richer, and more productive lives as a result.

 That, however, is hardly the end of the matter. Marriage between male and female is more than a matter of biological complementarity–the union of the two has been thought through the ages more mystical and profound than the separate identities of each alone. Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures may weaken the sanction of law and custom necessary for human families to flourish and children to grow. These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? The dangers of doing otherwise are clear. When we  politicize our basic documents of governance, we deepen exponentially the wounds of civic life.

 The more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are much too sure they are right. Certainty is, to be sure, a constant feature of our politics–some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day’s time and arena. Their message is as clear today as it was at the Founding: Leave Constitutions alone!

Excerpts from: J. Harvie Wilkinson III, Gay Rights and American Constitutionalism: What’s A Constitution for?, 56 Duke L.J. 545 (2006).

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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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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.

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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.

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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 today joined the Seventh and Eighth Circuits in their split from the Ninth Circuit over the correct application of Georgia v. Randolph, 547 U.S. 103 (2006), in a situation in which consent to search a shared home was given by one person with authority to consent in the absence of another individual who had previously refused consent. Compare United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) (requiring physical presence of objecting co-tenant), and United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (same), with United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008) (allowing prior co-tenant’s refusal to operate even in the absence of continuing physical presence).  The court also upheld the federal anti-stalking statute, 18 U.S.C. § 2261A(2)(A), against a vagueness challenge. Judge Wilkinson wrote the opinion for the court in United States v. Shrader, which was joined in by Judge Motz and Judge Shedd.

With respect to the circuit split over Georgia v. Randolph, the opinion states that the Ninth Circuit’s approach of allowing refusal to operate even in the absence of the objecting co-tenant raises practical problems:

How broadly is constructive knowledge of a suspect’s prior refusal to consent to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that be assessed from the totality of the circumstances? Is there some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph would involve courts in such questions, diverting attention from the basic social expectations that underlie not only the opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement that an objecting cotenant be physically present thus not only shows fealty to the Supreme Court’s precedent, but also focuses police and courts on the customary norms that form the basis for this area of law.

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From J. Harvie Wilkinson, III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance:

Most of us are wired in the belief that, of course, we are right. Judges in particular become vested in their own views with time. No electorate forces us to make adjustments. We are the kings and queens of our realms. All rise as we walk into the courtroom; no one is to interrupt the Honorable Judges as we hold forth in our robes from an elevated perch. This accumulation of tokens of our majesty makes it more difficult to practice restraint and more imperative to have internal checks in place. Especially in constitutional cases, the first question should be not “What do I decide?” but “May I in fact decide?” And in all cases, we must ask: might not the views of others be equal or superior to our own? These are questions that do not arise naturally or produce honest answers frequently. Most of us pose these questions only fitfully and episodically. All of us know we should do so all the time. But the struggle for restraint remains essentially a struggle against nature, and the stakes for self-governance have seldom been so high.

 

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The Fourth Circuit’s unanimous opinion today in United States v. Castillo-Pena presents an interesting fact pattern for appreciating the line between questions of fact and questions of law.

The case was a prosecution under 18 U.S.C. § 911 for falsely claiming U.S. citizenship. An immigration agent who interviewed Castillo-Pena described his claim to have a valid Puerto Rican birth certificate. The agent further testified, “I told him, well, if you would like to make a statement that you are a U.S. citizen, we can do that, and he said yes, I would like to.” The agent then took out a piece of paper, and Castillo-Pena apparently changed his mind, stating that he didn’t want to sign anything without a lawyer present. When prosecuted for falsely claiming U.S. citizenship, Castillo-Pena asserted that “when [the immigration agent] asked him whether he would like to make a statement that he was a U.S. citizens, and he responded ‘yes, I would like to,’ this did not constitute a false representation of U.S. citizenship, but rather a statement of future intent to make a claim of citizenship.” The Fourth Circuit concluded that “whether Castillo-Pena’s answer constituted a present claim of citizenship . . . was a dispute appropriately evaluated by the jury as trier of fact.”

Judge Wilkinson wrote the opinion for the court, in which Judge Duncan and Judge Agee joined.

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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. Capkawhich 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) .

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A wife obtained a domestic violence protective order in Alexandria (VA) Juvenile & Domestic Relations Court against her husband based on his aggressive behavior and threat to kill her (a threat made credible, in part, by her husband’s prior combat experience in the Navy). The order included a bolded, all caps warning stating that “while this protective order is in effect, you may be subject to a federal penalty under the 1994 amendment to the Gun Control Act, 18 U.S.C. § 922(g)(8), for possessing, transporting, or receiving a firearm.” Here’s what happened next:

Just over one hour after the court issued the order and an officer served it on [the husband], [he] entered the Sharpshooters firearms retail store and small arms range in Lorton, Virginia. There, [he] paid for a monthly membership, rented a Glock 22 handgun, and purchased two boxes of ammunition containing fifty rounds each. He proceeded to a firing lane for approximately thirty minutes of shooting, after which he returned the gun and left the range. Shortly thereafter, [the wife] contacted the police when she arrived home to find [the husband's] Sharpshooters membership card near the door inside her apartment.

The husband was convicted and sentenced on two counts of possessing a firearm or ammunition in violation of 18 U.S.C. § 922(g), which prohibits possession by individuals subject to a domestic violence protective order. On appeal, the husband argued that his convictions violated the Second Amendment and that it was plain error to convict and sentence him on two separate counts for the simultaneous possession of a firearm and ammunition.

In a unanimous opinion authored by Judge Wilkinson, and joined by Judge Wynn and Judge Floyd, the Fourth Circuit held in United States v. Mahin that the convictions did not violate the Second Amendment but that it was plain error to convict and sentence on two counts instead of one.

From the Second Amendment analysis:

[O]ur precedent indicates the district court is not required to speculate on a case-by-case basis what violent acts may have unfolded had the government failed to prosecute under § 922(g)(8). In Chapman we noted specifically that a conviction under § 922(g)(8)(A)-(B) and (C)(ii) is constitutional even if the statute’s “prohibitory net . . . may be somewhat over-inclusive” in reaching persons who would not misuse a firearm if permitted to possess one. Chapman, 2012 WL 11235, at *8. For intermediate scrutiny has never been held to require a perfect end-means fit. It is sufficient that § 922(g)(8) rests on an established link between domestic abuse, recidivism, and gun violence and applies to persons already individually adjudged in prior protective orders to pose a future threat of abuse. The obvious utility of Congress’ chosen means in advancing Congress’ indisputably important ends relieves trial courts of the need to ruminate in every case on what might have been if not for an indictment under § 922(g)(8).

From the plain error analysis and conclusion:

In United States v. Dunford, 148 F.3d 385 (4th Cir. 1998), we held that the defendant’s simultaneous possession of multiple firearms and ammunition supported only one count of conviction under § 922(g). Mahin’s indictment included two counts under §922(g)(8), one for the possession of a firearm and the other for the simultaneous possession of ammunition at the Sharpshooters firing range, which under Dunford constitutes only one violation. In light of Dunford, we agree with Mahin that the district court committed plain error in convicting and sentencing Mahin on both counts of the indictment. Because the court sentenced Mahin on each count and imposed a special assessment of $100 for each conviction, its rror affected Mahin’s substantial rights. We therefore affirm Mahin’s conviction under 18 U.S.C. § 922(g)(8) as to count one, reverse his conviction as to count two for possession of ammunition while subject to a protective order, vacate his sentence, and remand for the limited purpose of resentencing in accordance with this decision.

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A Maryland jury awarded $2 million for lead poisoning of an infant girl at a property in Baltimore. The award was reduced to $850,000 under a Maryland law limiting non-economic damages. The plaintiff sought to collect the full $850,000 from Penn National, an insurance company that provided liability insurance to one of the property’s owners for a portion of the period of lead exposure. Penn National filed a declaratory judgment action in federal court seeking a declaration that it was responsible for paying only the pro rata portion of the damages award corresponding to the months during the exposure period that its policy covered the property.

In Pennsylvania National Mutual Casualty Insurance v. Roberts, issued today, the Fourth Circuit unanimously held that the insurer was responsible only for a pro rata  portion of the damages awarded and that the district court had improperly expanded the number of months that the insurer’s coverage was effective. Judge Wilkinson wrote the opinion, in which Judge Duncan and Judge Gergel (D.S.C., sitting by designation) joined.

Some excerpts:

 

At bottom, an insurance contract is an agreement to accept a premium in exchange for a contractually defined risk. If an insurance company cannot limit its risk to a defined period, it will be unable to determine the precise risks assumed under a contract, which in turn will prevent it from accurately pricing coverage. Not only will this hinder rational underwriting, but the higher premiums necessary to compensate for this rising uncertainty will be passed on to policyholders everywhere. Because we do not wish to force “insureds to bear the expense of increased premiums necessitated by the erroneous expansion of their insurers’ potential liabilities,” see Bao v. Liberty Mut. Fire Ins. Co., 535 F. Supp. 2d 532, 541 (D. Md. 2008) (internal quotation marks and citation omitted), we refuse to adopt Roberts’s approach.

* * *

We recognize that Roberts unfortunately may not be able
to recover her entire judgment from either [of the property's actual owners]. It is a dispiriting but inescapable fact that sometimes really bad things happen, and those responsible are either insolvent or inadequately insured. But that regrettable reality does not allow us to ignore Maryland law, to hold an insurance company to a contractual provision to which it never agreed, or to scramble together whole areas of law that are conceptually distinct. The district court was right to allocate Penn National’s liability using the pro-rata time on-the-risk approach.

* * *

The law may not be difficult here, but the human costs incurred are undeniably hard. It is sad that Roberts may recover only partially on her judgment. The jury obviously believed this child suffered significant brain damage from lead poisoning and that Attsgood and Gondrezick were liable. The condition of the property and the failure to procure appropriate insurance were the property owners’ responsibility. Roberts’s misfortune cannot be laid at Penn National’s feet, for that company has not disputed that it must pay that portion of the judgment to which its policy applied. To place the entire judgment on the insurer would be chaotic, rewarding those who decline to purchase adequate coverage and ultimately punishing those who do. This would lead in turn to more uncovered risks and lessened opportunities for the recompense of serious loss.

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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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