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Posts Tagged ‘Wynn’

The Supreme Court today unanimously overturned a Fourth Circuit decision that affirmed the denial of attorneys’ fees in a civil rights case. The Court in Lefemine v. Wideman vacated a Fourth Circuit decision that affirmed the denial of “prevailing party” attorney’s fees to a plaintiff who had secured declaratory and injunctive relief but no money damages.

Unanimous summary decisions like this one are a problem for any inferior court. Yet some courts deciding some issues seem more likely to result in such decisions (such as the Sixth Circuit operating under AEDPA or the Ninth Circuit examining qualified immunity). The Fourth Circuit has generally steered clear of this kind of unanimous overturning. What happened here?

It looks like the Fourth Circuit panel simply misapplied Supreme Court precedent, in large part because of an earlier circuit precedent (from 1993) that also (but without correction) misapplied Supreme Court precedent.

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

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

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Four owners of a trucking company sold the business’s sole remaining asset–a warehouse–and retired. After selling the warehouse, the businessmen sold their company stock to an investment company that promised to pay the company’s taxes. The investment company never did pay those taxes, and the IRS came after the former owners of the trucking company for the tax bill, which was in the neighborhood of $880,000. The IRS said the transaction with the investment company was a tax shelter scam, but the Tax Court sided with the former owners of the trucking company. A split panel of the Fourth Circuit affirmed. Judge Davis wrote the opinion for the Court in Starnes v. Commissioner, in which Judge Niemeyer joined. Judge Wynn wrote a dissenting opinion.

Depending on one’s view of the facts, either (a) the former owners of the trucking company were victims of unscrupulous cheats, persecuted by an overeager federal government out to take away their hard-earned retirement money, or (b) they pulled a fast one on the federal government, saving themselves over $100,000 each in taxes. Depending on one’s view of the law, either (a) the government should have stayed its hand because it misunderstood North Carolina law, or (b) the government was denied the benefit of federal law elevating substance over form in evaluating the tax consequences of transactions like the one at issue here.

The first few paragraphs of Judge Wynn’s dissent summarize his view of the case:

This case involves a straightforward transaction made complicated so as to facilitate the fraudulent avoidance of a tax liability. Simply put, the petitioners, former shareholders of Tarcon, reduced the sole asset of Tarcon to cash by selling that asset, a warehouse, for $3,180,000. After that October 30, 2003 sale, Tarcon had $3,091,955 in its bank account and no  tangible assets. As a result of the warehouse sale, Tarcon incurred a federal tax liability of $733,699 and a North Carolina tax liability of $147,931, for a total of $881,628. If the story had ended there, the four former shareholders, each of whom owned 25 percent of Tarcon, would have completed the liquidation of Tarcon by paying those tax liabilities and dividing the remaining sum, allowing each to receive a distribution of approximately $552,582.

Of course, the story doesn’t end there. Instead, MidCoast entered with a fraudulent scheme that would allow the former shareholders to avoid paying their $881,628 tax liability. Under its proposal, MidCoast would pay the former shareholders $2,621,136 for their Tarcon stock and legal fees; in return, Tarcon would transfer its sole asset, roughly $3.1 million in cash, to MidCoast. Why, though, would the shareholders turn over Tarcon’s $3.1 million to MidCoast and receive only $2.6 million in return?

The answer is evident when Tarcon’s outstanding tax liabilities of $881,627 are factored into the equation. Indeed, it then becomes clear that the former shareholders actually negotiated to be paid $2.6 million in cash—for cash that in reality totaled only $2,210,425, resulting in a windfall of $410,711. That windfall was, in fact, a cut from Tarcon’s $881,627 tax liability, transferred to MidCoast when it purchased the former shareholders’ stock, and which it undoubtedly was scheming to avoid under the guise of offering an “asset recovery premium.” While I recognize the intricacies of MidCoast’s subsequent actions to avoid paying the full liability of $881,627, this transaction cannot escape its ultimately simple  label: a transparent scam designed by the parties to fraudulently evade paying taxes. Accordingly, I must respectfully dissent.

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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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A split Fourth Circuit issued an opinion yesterday in the continuing saga of school desegregation litigation in North Carolina’s Pitt County. The decision vacates and remands a district court decision that had ruled in the school board’s favor in rejecting a challenge to a recent student assignment plan.

The current chapter of the story began with the filing in April 2011 of a motion for injunctive relief by a parents’ group who complained that the School Board’s 2011-12 Assignment Plan insufficiently addressed racial disparities. But the story cannot simply pick up there because a key part of the School Board’s defense to this April 2011 action was that its 2011-12 Assignment Plan complied with a 2009 Settlement Agreement/Release and Order that was reached in mediation of a dispute over the 2006-07 Assignment Plan.

The 2006-07 dispute–known as the Everett litigation–also involved the Greenville Parents’ Association. The Association had filed a complaint with the federal Office of Civil Rights (Department of Education) objecting to the Board’s use of race in the 2006-07 Assignment Plan.

In the litigation over the 2006-07 plan, then, the School Board was being hit from both sides–by some parents for not doing enough about racial disparities and by others for placing too much emphasis on race in student assignments.

The 2009 mediated settlement agreement and order in the Everett litigation created a process for input from all sides in creating the 2011-12 Assignment Plan. The Board and the various interested parties went through this agreed-upon process, but the resulting plan was not satisfactory to the plaintiffs. That dissatisfaction led to the motion for injunctive relief at issue in the appeal decided yesterday.

As presented to the Fourth Circuit, the principal issue was who bore the burden of proof in seeking injunctive relief. The appeal also presented a question about appellate jurisdiction.

In an opinion authored by Judge Wynn, and joined in by Judge Diaz, the Fourth Circuit held in Everett v. Pitt County Board of Education that the district court erred “by failing to apply, and requiring the School Board to rebut, a presumption that racial disparities in the 2011-2012 Assignment Plan resulted from the School Board’s prior unconstitutional conduct in operating a racially segregated school district.” Judge Niemeyer dissented, arguing that the majority’s disposition “overlooks . . . the procedural posture of his case and, most importantly, the impact of the settlement agreement reached by the parties ‘as to all matters in dispute’ from the date of the original desegregation orders to the date of the court’s approval of the settlement agreement in a consent order, dated November 4, 2009.”

The decision is a victory for UNC’s Center for Civil Rights, which represented the plaintiffs. Their background page on the case contains links to the appellants’ brief, the school board’s brief, and the reply brief.

The case raises difficult issues about continuing judicial oversight of a school district that has not yet achieved unitary status. It is difficult to evaluate the dueling opinions without further study of the record, including the precise terms of the settlement agreement/release and order, though my preliminary impression is that the majority opinion does not adequately address the dissent’s contentions about the effect of the 2009 settlement agreement/release and order. The one thing that is clear, though, is that the litigation will continue for the foreseeable future.

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The Fourth Circuit yesterday issued a decision in a messy dispute among plaintiffs’ lawyers, car dealers, and car purchasers over the use of South Carolina’s FOIA law to obtain personal information about car purchasers for use in litigation against car dealers. Judge Davis wrote the opinion for the Court in Maracich v. Spears, in which Judge Duncan and Judge Wynn joined.

The court’s summary of its holding:

[W]e hold that the district court erred in ruling that the Lawyers did not engage in solicitation. Yet, the Lawyers indisputably made permissible use of the Buyers’ personal information protected by the DPPA, here, for use “in connection with [litigation],” including “investigation in anticipation of litigation.” 18 U.S.C. §2721(b)(4). Ultimately, the Buyers’ damages claims asserted under the DPPA fail as a matter of law, notwithstanding the fact that the Buyers can identify a distinct prohibited use (mass solicitation without consent) that might be supported by evidence in the record. In short, where, as a matter of settled state law and practice, as here, solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable by persons to whom the personal information pertains.

The opinion notes that its decision in favor of the lawyers largely tracks the approach of the Eleventh Circuit in Rine v. Imagitas, 590 F.3d 1215, 1226 (11th Cir. 2009). The buyers relied on the Third Circuit’s decision in Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008), but the court thought that decision to be “plainly distinguishable.”

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The Fourth Circuit held today that section 212(h) of the Immigration and Nationality Act “does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility.” Judge Wynn wrote the opinion for the Court in Bracamontes v. Holder, in which Judge Agee joined. Judge Niemeyer concurred in part and dissented in part.

The split between the majority and the dissent focused on whether the statute unambiguously foreclosed the BIA’s interpretation of the relevant statutory provision. Judge Niemeyer’s dissent begins as follows:

While the majority has perhaps set forth a plausible construction of § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), its construction is not the only, or even the most, plausible construction. Indeed, I conclude that the different construction given to § 212(h) by the BIA is not only plausible but is more consistent with the other provisions of the INA. But choosing the best construction is not our task. When a statute yields two plausible constructions, we should defer to the agency, especially when the statute pertains to immigration matters.

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The Fourth Circuit has certified two questions to the Virginia Supreme Court.

One certified question involves the interpretation of a homeowners insurance policy under Virginia law:

For purposes of interpreting an “all risk” homeowners insurance policy, is any damage resulting from [the covered home's] drywall unambiguously excluded from coverage under the policy because it is loss caused by: (a) “mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage itself”; (b) “faulty, inadequate, or defective materials”; (c) “rust or other corrosion”; or (d) “pollutants,” where pollutant is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste”?

The per curiam unpublished certification order in Travco Insurance Company v. Ward was entered by a panel consisting of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith. The panel heard oral arguments on September 20, 2011. The court’s reasoning with respect to certification is not that extensive for the amount of time that this appeal has been pending.

The other certified question arises out of the employment context:

Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer, such as a supervisor or manager, but who participated in the wrongful firing of the plaintiff?

Judge Floyd authored the certification order in VanBuren v. Grubb, on behalf of a panel that also included Judge Niemeyer and Judge Motz. The reasoning in favor of certification is much more extensive than in Ward. In addition to noting that the Virginia Supreme Court has not addressed this issue, the order notes that no consensus has arisen among Virginia’s trial courts and that other states are split on the issue.

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

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

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

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

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

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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 issued two published opinions on Monday in argued cases. Both were unanimous affirmances.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Fourth Circuit held today that SunTrust Mortgage did not violate TILA when, in the course of extending additional credit to an existing creditor in a refinancing, it used a disclosure form derived from Model Form H-8 in the Appendix to Regulation Z, rather than a form derived from Model Form H-9. Judge Niemeyer wrote the majority opinion for a split Fourth Circuit panel in Watkins v. SunTrust Mortgage, Inc. Judge Diaz joined Judge Niemeyer’s opinion. Judge Wynn dissented.

Judge Niemeyer’s opinion begins as follows:

The issue presented is whether a lender violates the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”), in providing notice to a borrower who is refinancing his mortgage of the right to rescind the transaction, using a form of notice substantially similar to Model Form H-8 in the Appendix to Regulation Z, 12 C.F.R. pt. 226, rather than using Model Form H-9, which was designed for refinancing transactions.

The district court dismissed the borrower’s complaint for failure to state a claim upon which relief could be granted, concluding that although Model Form H-8 is somewhat different from Model Form H-9, the use of Model Form H-8 in a refinancing transaction did not amount to a TILA violation.

We agree. Model Form H-8 includes all of the information required by TILA and Regulation Z to advise borrowers of the right to rescind a consumer credit transaction, including a refinancing transaction, and accordingly we affirm.

In dissent, Judge Wynn accuses the majority of ignoring binding circuit authority requiring strict conformity with TILA:

Whereas the majority holds that the notice provided by Form H-8 is close enough to meet the disclosure requirements of the Truth in Lending Act, this Court in Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F.2d 65, 67 (4th Cir. 1983), made it plain that the Truth in Lending Act requires strict compliance. But, tellingly, the majority ignores our binding and controlling decision in Mars by not even citing to it.

Judge Wynn argues that the majority should not have looked for substantial similarity, for once SunTrust Mortgage decided to comply by relying on the appropriate model form, it needed to pick the right model form:

Here, SunTrust chose to use the “appropriate model form in Appendix H” disclosure method rather than to devise its own form to provide “substantially similar notice” required under the Truth In Lending Act. Thus, the dispositive issue on appeal is whether a lender that chooses to use the “appropriate model form in Appendix H” must use the appropriate form to comply with the Truth in Lending Act. Certainly yes. As it is undisputed that SunTrust did not use the appropriate model form, it follows that SunTrust was not in compliance with the Truth in Lending Act. It is a simple and straightforward result that is readily understood by both the lender and borrower. In  short, the intervention of courts should end when it is determined that a lender who chose to use the appropriate model disclosure form method used the wrong form.

Judge Wynn also twice suggests that the majority’s holding results from a failure to exercise “judicial restraint.”

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The Fourth Circuit issued two published opinions in argued cases today. Judge Wynn authored both opinions, which were unanimous.

At issue in Creekmore v. Maryview Hospital was the admissibility, under Virginia Code § 8.01-581.20, of the testimony of an OB-GYN about the standard of care for a nurse’s postpartum monitoring of a high-risk patient with preeclampsia. The district court admitted the testimony and the court of appeals affirmed. The panel deciding the appeal consisted of Judge Wilkinson, Judge Wynn, and Judge Floyd.

In CGM, LLC v. BellSouth Telecommunications, the Court of Appeals held that a billing agent for competitive LECs lacked statutory standing to bring an action for declaratory relief against an incumbent LEC regarding the claim that the ILEC failed to pass on to CLECs the full value of discounts offered by the ILEC to its customers. No CLECs were parties in the case. Some key language:

CGM has no interconnection agreement with BellSouth. CGM has not brought this suit pursuant to any interconnection agreement. And no party to an interconnection agreement is a plaintiff in CGM’s suit. Because Section 251(c)’s resale duties and the related 47 C.F.R. § 51.613 are not free-standing but exist, to the extent that they do at all (given parties’ freedom to contract around them), only as embodied in interconnection agreements, CGM has no rights, and BellSouth no duties, under the circumstances of this case.

Although decided on statutory standing grounds, this case has some echoes of the Fourth Circuit’s decision on Article III standing in Neese v. Johanns:

In this case, any claim to a specific sum of money must flow from the contractual relationship between the Secretary and the producer. See 7 U.S.C. § 518b(a) (“The Secretary shall offer to enter into a contract . . . under which the producer of quota tobacco shall be entitled to receive payments under this section. . . .”) (emphasis added). Appellants, however, cannot maintain such a claim. After accepting the Secretary’s offer of payment contracts without reservation and entering into those contracts, they transferred all their rights under those contracts to third parties. Quite simply, appellants have no rights left to invoke and, therefore, lack standing to pursue further contracts or payments from the Secretary.

Procedure buffs may be interested in noting the court’s conclusion that a motion to dismiss for lack of statutory standing is properly brought under FRCP 12(b)(6) rather than FRCP 12(b)(1). It is also worth noting how easily the court dispatched the attempt to rely on the Declaratory Judgment Act as a free-standing cause of action.

The panel deciding CGM consisted of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith.

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The Fourth Circuit yesterday rejected constitutional and other challenges to various changes made to the Black Lung Benefits Act by the Patient Protection and Affordable Care (“PPACA” or “Affordable Care Act” or “ACA” or “Obamacare” and so on). Judge Wilkinson wrote the opinion in West Virginia CWP Fund v. Stacy, which was joined in by Chief Judge Traxler and Judge Wynn.

The principal constitutional challenges were substantive due process and Takings Clause claims regarding a statutory provision that extended certain benefits to claims that were filed after January 1, 2005 and pending on or after the date of the ACA’s enactment (March 23, 2010). The challengers sought to distinguish Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976), in which the Supreme Court rejected a due process challenge to the Black Lung Benefits Act. The challengers sought to analogize their challenge to Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), in which five Justices voted to hold unconstitutional a certain retroactive imposition of liability in the coal industry. The five Justices in the Eastern Enterprises majority did not agree on a theory of unconstitutionality. Four found a violation of the Takings Clause, while one (Justice Kennedy) found a substantive due process violation. (The remaining four found no constitutional flaw.)

Judge Wilkinson’s opinion applies Usery v. Turner Elkhorn Mining, distinguishes Eastern Enterprises, and in the course of doing so, also reiterates the Fourth Circuit’s view that the rejection of a Takings Clause theory by five Justices–on the ground that a simple obligation to pay does not amount to a taking–”is more authoritative than the plurality’s conclusion” that the imposition of such an obligation could amount to a taking.

The opinion contains two interesting passages regarding the Affordable Care Act more generally. First, Judge Wilkinson concludes in a footnote that the BLBA amendments in the ACA would survive as severable even if the Supreme Court were to hold the individual mandate unconstitutional (as it has been asked to do). Second, Judge Wilkinson resoundingly rejects, because it threatens the separation of powers, the challengers’ argument that the BLBA amendments only passed due to their inclusion in massive and unwieldy ACA:

[P]etitioner’s argument that the BLBA amendments only passed due to their “inclusion . . . in approximately 2,700 pages of healthcare legislation,” Petitioner’s Reply Br. at 27-28, threatens the separation of powers by inviting courts to scrutinize the process by which a coordinate branch of government goes about its business. Likewise, it invites every loser in a legislative fight to contest not only the constitutionality of Congress’s final product, but the way that Congress went about enacting it. Such a plunge into the depths of Capitol Hill should be undertaken—if at all—only in the most extraordinary of circumstances, circumstances that are plainly not presented here. In sum, the difficulties with petitioner’s view are evident and legion.

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The Fourth Circuit yesterday issued a published opinion in United States v. Wellman affirming convictions on three offenses related to child pornography possession along with a ten-year sentence on one of the counts. Judge Keenan wrote the opinion, which was joined in by Judge Wynn and Senior Judge Hamilton.

In disposing of the defendant’s Fourth Amendment claim, Judge Keenan assumed without deciding that the content of the warrant application was insufficient to find probable cause, but held that the evidence was not subject to suppression because the West Virginia State Police relied in good faith on the issued search warrant. Although the structure of this reasoning does not yield clear guidance about what must be included in a warrant application, the panel did “decline to impose a requirement that a search warrant application involving child pornography must include an image of the alleged pornography.”

The opinion rejects the defendant’s statutory argument as an impermissible “attempt to graft a subjective, fact-based knowledge requirement onto an objective legal standard.”

The Eighth Amendment proportionality analysis concludes easily that Congress acted “well within its authority” in providing for a ten-year sentence for recidivist possessors of child pornography. In the lead-up to the analysis, Judge Keenan quotes a First Circuit decision stating that the instances of disproportionate sentences invalid under the Eighth Amendment should be “hen’s-teeth rare.” This suburbanite does not know what that means based on any experience with hens, but I suppose the number of such sentences is not much more than a goose egg.

 

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As previously discussed, the Fourth Circuit has dealt more than a few defeats to federal prosecutors this year on suppression motions arising out of Terry stops and Terry frisks. The unpublished opinions by a split panel in United States v. Braxton reveal that the Terry terrain continues to require careful navigation.

Judge Wilkinson wrote the majority opinion, in which Judge Floyd joined, affirming the district court’s denial of a suppression motion. Although the district court did not invoke the correct formula, the panel majority concluded that the facts revealed by the record justified the district court’s decision:

Here, the officers confronted a dangerous situation  presenting numerous indicia of criminal activity. They were  outnumbered by the passengers in a vehicle bearing bad tags traveling through a dangerous area with darkly tinted windows.  While “[w]e do not exclude the possibility that in some circumstances a patdown is not required[,]. . . we hesitate before criticizing [Officer Williams’s] choice of the means to protect himself in emergent circumstances on the street from the relative calm and safety of chambers.” United States v. Casado, 303 F.3d 440, 448-49 (2d Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

Proper adherence to the standards of Terry does not require  us to gamble with the lives of police officers who exercise reasonable judgment in fulfilling their duty in the trying situation presented by a roadside car stop. The Supreme Court  has long noted that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983) (citing Mimms, 434 U.S. 106). Officer Williams executed a minimally intrusive frisk, justified at the time by a reasonable suspicion that he and his fellow officers were in a situation that could escalate and place both the officers and the occupants of the car at risk. Where the totality of circumstances supports a reasonable suspicion that Braxton was “armed and dangerous,” the absence of those three talismanic words, while error, is not fatal to the district court’s ruling in this case.

Judge Wynn dissented, objecting that “under the majority’s holding, any passenger in a vehicle with bad license tags could be subjected to a patdown search, even absent a finding of reasonable suspicion that particular is armed and dangerous, if the vehicle is stopped in a high-crime area.” According to Judge Wynn, this contradicts the rule that “an officer must have justification for a frisk or a ‘pat down’ beyond the mere justification for the traffic stop.”

Judge Wynn’s dissent criticizes the majority for making factual findings on a cold appellate record, exceeding the limited role of an appellate court. According to Judge Wynn, this led to at least one apparent factual error:

I can find no support in the record for the  majority opinion’s statement that, “Braxton then elbowed Officer Williams in an attempt to escape, but he was subdued after a struggle with Officer Williams and another assisting officer.” Ante p. 3. The transcript shows that Officer Williams recalled that Defendant “attempted to elbow me to get me off of him.” Transcript, at 56. Nothing in the record indicates that Officer Williams stated that Defendant made “an attempt to escape.”

To the contrary, Officer Williams testified under crossexamination that the police report was incorrect if it reflected that Defendant “attempted to push [Officer Williams] back and run” and that in fact Defendant complied with Officer Williams’s request to get out of the vehicle and put his hands up, allowing Officer Williams to pat him down. Transcript, at 61. He further agreed that “any insinuation in the police report” that Defendant did not comply was incorrect. Id. at 62.

This emphasis continues a theme sounded in Judge Wynn’s dissent from the Court’s published opinion in United States v. Foster, previously discussed here, which was issued on the same day as Braxton.

 

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The Fourth Circuit earlier this week issued an unpublished per curiam opinion in United States v. Smith affirming a conviction and 48-month sentence arising out of an illegal liquor operation in Halifax County, Virginia. In addition to providing some insight into the mechanics of running an illegal still, the opinion contains a discussion of the Fourth Amendment’s open fields doctrine, a formula for calculating the tax loss to the government from the illegal liquor operation (including $13.50/gal, with production estimated based on sugar purchases and other records), and dueling video surveillance systems. The panel consisted of Judge Agee, Judge Wynn, and Senior Judge Hamilton.

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The Fourth Circuit issued six opinions in argued cases between yesterday and the day before (3 published and 3 unpublished). One of the published opinions, holding that an ACCA enhancement was appropriate and reversing the district court’s contrary determination, featured three separate opinions weighing in on the value of common sense.

Judge Agee wrote the majority opinion in United States v. Foster, in which Senior Judge Hamilton joined. Judge Wynn dissented. Senior Judge Hamilton wrote a concurring opinion largely responding to Judge Wynn.

The issue in Foster is one that has roiled the Fourth Circuit in recent times: the propriety of a sentencing enhancement under the Armed Career Criminal Act. In this case, the Shepard documents relied upon by the government showed convictions for breaking and entering the “Sunrise-Sunset Restaurant” and the “Corner Market.” The issue was whether it is appropriate to infer that these convictions were for breaking and entering a building or structure. The precise details of the legal dispute aside for the moment, here are some quotations providing a sense of the back and forth on the panel.

Judge Agee, quoting the First Circuit:

“The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality,law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.” Rainer, 616 F.3d at 1216. As we concluded with respect to the “business” in Shelton, we find that the indictments’ references to the “Sunrise-Sunset Restaurant” and the “Corner Market,” in the context of the applicable Virginia statute, ensure that Foster entered buildings or structures and was thus convicted of generic burglary for purposes of the ACCA.

Senior Judge Hamilton, concurring:

I write separately to make three observations concerning the use of common sense in ACCA cases. First, there is nothing truly remarkable about the use of common sense in ACCA cases. * * *

Second,  leaving our common sense at the front door makes little sense in examining court documents in ACCA cases. For example, what if the Virginia state court documents reflected that Foster was convicted of breaking and entering into an “Outback Steakhouse” or a “Wawa”? Under the dissent’s interpretation of Shepard, a district court would be precluded from using such a conviction because the documents themselves do not prove to an absolute certainty that every Outback Steakhouse or Wawa is affixed to the ground. As the dissent sees it, our common sense cannot step in and tell us what we already know because there is an infinitesimally small possibility that there is some Outback Steakhouse or Wawa floating on a river somewhere in a far-off land. * * *

Finally, the dissent implies that the use of common sense “replace[s the district court’s] fact-finding with our own.” The use of common sense is not the equivalent of fact-finding. The standard of review in ACCA cases is de novo, United States v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005), and the use of common sense here is the same common sense courts routinely employ in determining the meaning of a state or federal statute.

Judge Wynn, dissenting:

None of the judicial records pertaining to Defendant’s prior convictions contain any allegation that the Corner Market or the Sunrise-Sunset Restaurant are buildings or structures; they are referred to only by their proper names. Indeed, nothing in the record either proves or disproves that those establishments are located in buildings or structures, or that Defendant “necessarily admitted” to those facts as part of his guilty plea. If not from these judicial records, where then did the majority obtain its “evidence” that the Sunrise-Sunset Restaurant and the Corner Market are buildings? [footnote 2]

[Footnote 2: In fact, the majority's statement that "[a] defendant who pleads guilty to the burglary of a McDonald’s Restaurant, under similar circumstances to this case, necessarily pleads guilty to the burglary of a building or structure  illustrates perfectly the danger of such speculation based only on common sense or logic. Ante p. 11. Notably, it is not apparent what “similar circumstances” would render the per se determination that a McDonald’s Restaurant is a building for purposes of invoking the ACCA. Without some extrinsic knowledge of the circumstance of location in this case or another, it could well fit within the description of the McDonald’s Restaurant that operated out of a riverboat in Saint Louis for twenty years. See http://www.yelp.com/biz/mcdonalds-riverboat-st-louis (last visited Nov. 10, 2011); http://www.flickr.com/photos/tom-margie/2864343408/lightbox/ (last visited Nov. 10, 2011).

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