Archive for August, 2011

The Fourth Circuit issued a split decision today in Gray v. Hearst Communications, Inc. affirming the certification of a class of business advertisers. The class members are businesses that purchased advertising in The Talking Telephone Book directories published in various South Carolina markets. The class alleged that they bought this advertising on the basis of the publishers’ representation of its distribution coverage, but that the publisher “knowingly misrepresented its actual distribution, never made a full distribution as promised, and intentionally sought to conceal this deception.” The district court certified a class to pursue three theories: breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair and deceptive trade practices. Judge Shedd authored the Fourth Circuit’s majority opinion affirming certification, an unpublished opinion that was joined in by Judge Moon (senior judge from WDVA sitting by designation). Judge Wilkinson dissented.

The case was argued in December 2010. Eight months between argument and decision is a long time even for a split decision, particularly when the resulting opinions are not lengthy. The wait may have been due to a desire to wait until the Supreme Court decided Wal-Mart v. Dukes, a case discussed by both majority and dissent.

The decision may be of interest to students of appellate practice, inasmuch as the majority opinion attributes dispositive significance to a concession made by counsel for appellant at the oral argument.

For students of class action law, however, the majority opinion should be of less interest. The unpublished opinion contains only a cursory discussion of the predominance requirement of 23(b)(3). Moreover, the analysis examines only certification of the breach of contract claim, disposing of class certification questions surrounding the other two claims in a brief footnote. Also disposed of in another brief footnote at the end of the opinion are appellant’s arguments “that the district court abused its discretion by (a) certifying Gray’s class on a conditional basis, (b) failing to conduct a rigorous analysis of the record, and (c) finding the class satisfied the superiority, typicality, and adequacy requirements of Rule 23(b)(3).”

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The Fourth Circuit issued a published decision today affirming the district court’s dismissal of all claims in A Society Without a Name, For People Without a Home, Millennium Future-Present v. Virginia. The case, also known as ASWAN v. Virginia, involves challenges to various steps taken by Virginia Commonwealth University and the City of Richmond to relocate services for the homeless away from downtown Richmond.

The panel ruling was divided along a couple of dimensions. Judge Gilman (senior Sixth Circuit judge sitting by designation) wrote the lead opinion affirming the district court’s dismissal of all claims. Judge Motz wrote a separate opinion concurring in Judge Gilman’s opinion except with respect to analysis of the Society’s ADA claim against VCU (which Judge Motz would have allowed to proceed). Judge Wynn wrote a separate opinion concurring in Judge Gilman’s opinion except with respect to analysis of whether various claims were barred by the statute of limitations (the majority said yes and Judge Wynn said no).

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The Fourth Circuit usually has its opinions posted by this time of day, but they are probably experiencing some minor delays stemming from this afternoon’s earthquake. Here at the University of Richmond School of Law, we felt tremors for maybe 30 seconds or so. The shaking knocked over some large piles of books in my office and caused some pictures to hang askew, but caused no major damage that I’m aware of.


UPDATE (4 p.m.): No opinions in argued cases issued today.

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The Fourth Circuit issued a published opinion in Dewhurst v. Century Aluminum Company affirming the denial of a preliminary injunction seeking continuation of certain health care benefits. The dispute in Dewhurst arose out of Century’s decision to modify or terminate retiree health benefits for certain retirees, who then filed a suit contending that their benefits were vested and therefore protected from modification under the the Labor Management Relations Act and ERISA. Judge Copenhaver of the Southern District of West Virginia denied a motion for a preliminary injunction. Judge Agee authored the unanimous opinion affirming Judge Copenhaver’s denial of relief. Judges Wilkinson and King joined Judge Agee’s opinion.

The decision rejects appellants’ reliance on the so-called Yardman inference (named for the Sixth Circuit’s decision in Intl. Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983)). Appellants relied on Yard-Man for the proposition that retiree benefits “continue so long as the prerequisite status is maintained.” Judge Agee’s opinion concludes that the appellants overread not only Yard-Man, but also a Fourth Circuit decision (Keffer v. H.K. Porter Co., 872 F.2d 60, 62 (4th Cir. 1989)) that appellants (mistakenly) characterized as adopting appellants’ overly expansive interpretation of Yard-Man.

The decision also contains language emphasizing the clear showing of a likelihood of a success on the merits that must be made by one seeking a preliminary injunction.

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The Fourth Circuit’s en banc decision last week in United States v. Simmons changed the way that the Fourth Circuit analyzed prior North Carolina convictions for sentencing enhancement under the Armed Career Criminal Act. (See here for my earlier discussion of this decision.) The day after Simmons was handed down, a panel vacated the sentence for a drug conspiracy in United States v. Morton. Today brings news of another sentence vacated under Simmons–an almost 20-year sentence (235 months) in United States v. Trent. The ACCA sentencing enhancement had raised Trent’s sentencing range from 120-150 months to 235 to 293 months.

Trent’s arrest and prosecution followed a car chase in which Trent “drove faster than 100 miles per hour into oncoming traffic,” lost control of his Ford Taurus, and crashed into a commercial storefront. While escaping out a side door, Trent was observed dropping an object “about the size of his hand.” Officers ran down Trent and his passenger. A search of the car revealed a handgun and drug paraphernalia. Trent was convicted of being a felon in possession of a firearm. Among the predicate convictions relied upon by the government for a sentencing enhancement under ACCA were two convictions for felony speeding to elude arrest. The facts underlying those two convictions closely resembled the car chase that resulted in his federal prosecution. “[I]n all three incidents, Trent drove recklessly, wrecked his vehicle, fled on foot from police, and then attempted to dispose of his firearm.” Because Trent could not have been sentenced to more than one year imprisonment for each of those prior attempts, in light of the framework supplied by Simmons, those two prior convictions could not be used as the basis of the ACCA enhancement that Trent received.

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Frank Green of the Richmond Times-Dispatch reports on Virginia’s execution Thursday night of Terry Jerrell Jackson, 30, for the 2001 rape and murder of an elderly woman. The story focuses on the execution as witnessed by a French reporter, and it excerpts the story written by that reporter:

Jackson lies on a raised gurney fitted with leather straps. Six prison staffers methodically strap him down.

The curtain closes abruptly, and the employees, unseen, insert catheters into each of Jackson’s arms.

Five minutes pass, and the audience is silent. A cough escapes from behind the curtain.

After 10 minutes, the fabric is drawn open, and Jackson is still conscious, his arms crossed over his chest.

The catheters, barely visible, will carry the lethal cocktail of three drugs — an anesthetic, then a muscle paralyzer, and finally potassium chloride to stop respiration — to Jackson’s body.

Jackson’s execution is the first in Virginia this year, and the first in the state to use the anesthetic pentobarbital, which is normally used to euthanize animals.

Several states switched to the drug this year instead of sodium thiopental for their lethal injections after the sole US supplier ceased production.

Jackson’s face is largely hidden by the bulk of his body, but his chest can be seen rising and falling. His toes twitch.

Prison warden George Hinkle looks at Jackson. “Do you have any last words?”

Jackson appears to say “no,” but no one is really sure.

Hinkle steps away, and the injections begin. A clock above the door marks the time: 9:08 pm.

A minute passes, and Jackson’s toes stop twitching. To the witnesses, Jackson looks completely inert.

At 9:14, an official declares, to no one in particular, “the order of the court was carried out.”

Jerry Jackson is dead. The curtain is drawn once again, and the witnesses — some of them shaken — stand up. No relatives of the murder victim are in attendance.

Outside the chamber, in a dark parking lot of the prison, a dark Chevrolet van waits to take delivery of Jackson’s body.

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The Fourth Circuit’s 8-5 en banc decision in United States v. Simmons holds that the Fourth Circuit’s earlier decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), “no longer remains good law” in light of a Supreme Court decision interpreting a different statute.

At issue in Simmons and Harp is how to determine whether a particular offense under North Carolina law is “punishable by imprisonment for a term exceeding one year,” and therefore qualifies as a predicate felony conviction under the federal Controlled Substances Act. To simplify (perhaps oversimplify): The old approach (in Harp) looked to the offense itself and asked whether any defendant prosecuted for that offense could be eligible for punishment of more than one year. The new approach (in Simmons) looks to the maximum punishment for which the offender was eligible based on the particular facts that dictated where the offender’s sentence fell in North Carolina’s structured sentencing scheme.

Simmons’s prior offense of possession with intent to sell no more than ten pounds of marijuana was a Class 1 felony under North Carolina law. A Class 1 felony is punishable by a sentence exceeding one year’s imprisonment if certain conditions are satisfied. Those conditions were not satisfied with respect to Simmons’s prior offense. The Fourth Circuit held, consequently, that Simmons was not eligible for the 10-year statutory minimum under the federal Controlled Substances Act.

Judge Motz wrote the majority opinion, which was joined by Judges King, Gregory, Shedd, Davis, Keenan, Wynn, and Diaz. Judge Agee authored the principal dissent, joined by Chief Judge Traxler and Judges Wilkinson, Niemeyer, and Duncan. Judge Duncan also authored a solo dissent.

The decision appears noteworthy for a few reasons.


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Now that the Fourth Circuit panel that heard oral argument in Virginia v. Sebelius and Liberty University v. Geithner has disposed of the other two appeals heard that same morning, one can use the panel’s actions in those cases to speculate about the authorship of the opinions in the two challenges to the individual mandate. My best guess is that Judge Motz was assigned to author the principal opinion in Liberty University v. Geithner and that Judge Davis was assigned to author the principal opinion in Virginia v. Sebelius. This is all speculative, of course, but there is a long and glorious tradition of speculating about opinion authorship in appellate cases.


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On May 10, 2011, a three-judge panel of the Fourth Circuit composed of Judge Motz, Judge Davis, and Judge Wynn heard arguments in two cases challenging the individual mandate in the Affordable Care Act. The opinions in those two cases have yet to be released. That same morning, the panel also heard arguments in two criminal cases, United States v. Dietz and United States v. Darcus.

On May 20, the panel issued an unpublished order dismissing the appeal in United States v. Darcus. The appeal was from a conviction based on a plea agreement that included a waiver of the right to appeal. The government sought to enforce the waiver by means of a motion to dismiss, and the Fourth Circuit granted the motion. The order was entered by Judge Davis, with the concurrence of Judge Motz and Judge Wynn.

This past Thursday, August 18, the panel issued an opinion affirming the conviction and sentence in United States v. Dietz, the other non-healthcare case from the May 10 panel. Judge Wynn wrote the opinion, which was unpublished and unanimous.

The opinion rejects challenges to evidentiary rulings, the denial of a motion to substitute counsel, and a challenge to the sentence (which was 35 years’ imprisonment, a variance from the Guidelines lifetime imprisonment sentence). The underlying kidnapping and carjacking crimes arose out of two romantic relationships, which culminated in Dietz’s arrest after a twelve-hour hostage situation. Among Dietz’s demands was for “a solicitor, or Georgia state prosecutor, ‘to agree to not make any charges.'” The opinion does not say whether such an agreement was made. In any event, Dietz does not appear to have made a similar demand of the federal government, which ultimately prosecuted him.

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In connection with World Youth Day 2011, Pope Benedict XVI addressed a gathering of university professors. In comments that also touched on his own experience as a university professor, Benedict described the role of the university as “the ‘house’ where one seeks the truth proper to the human person.” He linked this understanding of the university to the Gospel message, which “perceives a rationality inherent in creation and considers man as a creature participating in, and capable of attaining to, an understanding of this rationality.”

Some more key language from Pope Benedict’s remarks:

At times one has the idea that the mission of a university professor nowadays is exclusively that of forming competent and efficient professionals capable of satisfying the demand for labor at any given time. One also hears it said that the only thing that matters at the present moment is pure technical ability. This sort of utilitarian approach to education is in fact becoming more widespread, even at the university level, promoted especially by sectors outside the University. All the same, you who, like myself, have had an experience of the University, and now are members of the teaching staff, surely are looking for something more lofty and capable of embracing the full measure of what it is to be human. We know that when mere utility and pure pragmatism become the principal criteria, much is lost and the results can be tragic: from the abuses associated with a science which acknowledges no limits beyond itself, to the political totalitarianism which easily arises when one eliminates any higher reference than the mere calculus of power. The authentic idea of the University, on the other hand, is precisely what saves us from this reductionist and curtailed vision of humanity.

In truth, the University has always been, and is always called to be, the “house” where one seeks the truth proper to the human person. Consequently it was not by accident that the Church promoted the universities, for Christian faith speaks to us of Christ as the Word through whom all things were made (cf. Jn 1:3) and of men and women as made in the image and likeness of God. The Gospel message perceives a rationality inherent in creation and considers man as a creature participating in, and capable of attaining to, an understanding of this rationality. The University thus embodies an ideal which must not be attenuated or compromised, whether by ideologies closed to reasoned dialogue or by truckling to a purely utilitarian and economic conception which would view man solely as a consumer.

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Here are two maps to help: Map 1, Map 2. I just returned from a trip to a family resort area near the easternmost point of the Fourth Circuit, according to Google Maps. The two linked maps suggest the easternmost point may be elsewhere. I trust Google on this one.

There are several opinions to catch up on from the past couple of days, including a fascinating 8-5 en banc split on a sentencing issue. (Which judge in the majority might you not have expected to be there if you were casually relying on conventional wisdom and knew who the other 7 judges were?) Opinions issued today include another split criminal procedure decision, as well as the first opinion from a case argued before the panel deciding the challenges to the individual mandate. Stay tuned.

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The National Electrical Manufacturers Association and the Department of Energy disagree about what qualifies as a “small electric motor” under the Energy Policy and Conservation Act. The disagreement is consequential because the Department promulgated energy conservation rules for electric induction motors with .25 to 3 horsepower, relying on its authority to establish energy conservation rules for “small electric motor[s]” under the Act. The Association petitioned for review of a final rule promulgated by the Department, contending that the statutory definition precluded the Department from regulating all motors over 1 horsepower and certain motors at or less than 1 horsepower.

By a 2-1 vote, the United States Court of Appeals for the Fourth Circuit denied the petition for review in National Electrical Manufacturers Association v. Department of Energy. Judge King wrote the opinion, which was joined by Judge Wynn. Judge Shedd dissented. The panel majority deferred to the Department’s interpretation at the second step of a Chevron analysis, whereas Judge Shedd would have stopped at step one. The opinions discuss what sort of agency interpretations are entitled to deference and the relevance of legislative history. There looks to be much here for administrative law mavens.

Kudos to Professor Caleb Nelson of the University of Virginia School of Law, for the majority’s reliance on his casebook on statutory interpretation in discussing the relevance of legislative history.

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In a published opinion authored by Judge Davis in United States v. Massenburg, the Fourth Circuit says no. Judge Motz and Judge Wynn joined the opinion.The decision orders suppression of evidence seized during a non-consensual patdown in Richmond, Virginia.

The facts, as summarized at the beginning of the opinion:

Responding one night to an anonymous tip that shots were fired in a high-crime neighborhood, Richmond police encountered four young men, including appellant Tyerail Massenburg, four blocks from the reported gunfire. When an officer approached them in a marked police car, the men were not evasive; they continued walking forward, toward the car, and voluntarily paused to speak with the officer upon the officer’s request. In fact, they were cooperative: one of the men reported that he had heard shots fired from a passing car two blocks away and handed over his identification when asked; and at least two of the men consented to voluntary pat-downs. Appellant Massenburg stopped with his friends, but he refused to consent to a frisk. As the officer interacting with Massenburg testified, he first thought Massenburg nervous when he began asking him to consent to a pat-down and Massenburg was “real reluctant to give consent.” J.A. 48. Based on the fact that appellant stood a foot or two away from the other men, who were shoulder-to-shoulder, and did not make eye contact as the officer renewed his requests for aconsensual search, the officer undertook a nonconsensual search. The search produced a firearm and some marijuana,the subjects of the suppression motion at issue here.

The introductory portion of the opinion concludes:

We recently warned against the Government’s proffering “whatever facts are present, no matter how innocent, as indicia of suspicious activity” and noted that we were”deeply troubled by the way in which the Government attempts to spin . . . mundane acts into a web of deception.” United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011) [Gregory, J., joined by Motz, J., and Wynn, J.].This concern is only heightened when the “mundane acts”emerge from the refusal to consent to a voluntary search. If the important limitations on the “stop and frisk” regime crafted by Terry v. Ohio, 392 U.S. 1 (1968), are not to become dead letters, refusing to consent to a search cannot itself justify a nonconsensual search.

The opinion also contains an extensive discussion of the collective knowledge doctrine, rejecting the Government’s attempt to defend the patdown on the basis of another officer’s uncommunicated pre-patdown observation of a “bulge” under Massenburg’s clothing.

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The Fourth Circuit says no–a prospective employee may not sue a prospective employer for retaliation under the Fair Labor Standards Act. The Court of Appeals split 2-1. Judge Niemeyer (joined by Judge Keenan) wrote an opinion affirming the decision of Judge Cacheris (E.D. Va.) in Dellinger v. Science Applications International Corporation. Judge King dissented.

The opinion appears to break little new ground, although ruling against the Secretary of Labor and EEOC, who filed an amicus curiae brief in support of the prospective employee.

One of the more interesting features of the decision is the consonance in tone between Judge King’s dissent from Judge Niemeyer’s opinion in Dellinger and Judge King’s dissent from Judge Niemeyer’s opinion for the court, sitting en banc, in Aikens v. Ingram (previously discussed here). An important difference between the two cases, of course, is that Judge Keenan voted with Judge King in Aikens but with Judge Niemeyer in Dellinger.

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What should a federal court do when a plaintiff brings a facial challenge to a legal provision, but can show only that the legal provision is invalid as applied in certain circumstances? That is one of the questions raised by the Tenth Circuit’s decision in Scherer v. United States Forest Service.

A common response is to deny relief on the facial challenge and leave open the possibility of an as-applied challenge in a later case. That is what the Tenth Circuit did in Scherer.

Another option available in some cases is to convert the facial challenge into an as-applied challenge and to craft relief tailored to the as-applied violation. That is what the Supreme Court did in Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006).

I have not studied the matter in detail, but my impression is that “Ayotte conversions” remain rare. Regardless of whether that descriptive observation is correct, it is an interesting question whether such conversions ought to be more common. I am inclined to think that the answer is yes, although this inclination is only that at this point.

The question is an important one given its consequences not only for the development of the law, but also for how its resolution affects the parties in any particular case. If the court converts and grants relief, then the plaintiff may be entitled to attorneys’ fees, whereas no such entitlement even arguably exists if the court simply denies relief. In Ayotte, for example, the district court on remand needed to decide whether to award fees. New Hampshire argued against an award of fees on the ground that the plaintiffs brought a facial challenge and lost. The district court rejected this argument and awarded fees, reasoning that the plaintiffs had prevailed even though they had not obtained relief as broad as originally sought.

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The Eleventh Circuit’s 2-1 ruling holding the individual mandate unconstitutional, but severable from the remainder of the Affordable Care Act, should come as no surprise to close observers (or careful auditors) of the oral arguments in the case. In fact the ruling was portended by Judge Hull’s first question (if memory serves correctly), which was not about the constitutional merits, but about severability. In any event, here are some initial reactions:

(1) This decision makes Supreme Court review inevitable, most likely in this case.

(2) While most have speculated that the Supreme Court will decide the constitutionality of the individual mandate by the end of June 2012, this decision makes that timing prediction significantly more likely, almost a virtual certainty.

(3) The ruling has no implications for the jurisdictional obstacles facing Virginia in Virginia v. Sebelius. The Eleventh Circuit ruled that it did not need to decide whether the States were proper challengers to the individual mandate because at least one party — a private individual — did have standing.

(4) The ruling likely has very limited implications for the constitutional merits of the Fourth Circuit’s rulings in Liberty University v. Geithner or Virginia v. Sebelius. Given the tenor of oral argument in the Fourth Circuit, it is widely expected that the Fourth Circuit will rule against the constitutional challenge. The Fourth Circuit opinions will have the benefit of being able to address both the Sixth and Eleventh Circuits’ analyses, if the judges so choose.

(5) If the Eleventh Circuit’s ruling were to be affirmed by the Supreme Court, Congress would need to respond. The Eleventh Circuit’s severability analysis (which I believe reaches the right result) creates a terrible scenario for health insurers. The guaranteed issue and community ratings provisions remain, but the individual mandate is no longer operative to force healthy people into the insurance pool. Congress could legislate around this difficulty in a number of ways. The important practical point for present purposes, though, is that Congress would have to do something. Because the results of congressional action are so unpredictable, expect America’s Health Insurance Plans and the Chamber of Commerce (which filed an amicus curiae brief arguing for inseverability) to ratchet up pressure on the severability analysis. As AHIP made clear in its amicus curiae brief (filed in the Fourth Circuit), either (i) a decision upholding the individual mandate as constitution, or (ii) a decision holding the individual mandate unconstitutional and inseverable from the insurance-related provisions, would be preferable to the Eleventh Circuit’s holding of unconstitutional but severable.

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Here is another link to a .pdf of the Eleventh Circuit’s opinions in Florida v. HHS.

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In a 2-1 ruling, the United States Court of Appeals for the Eleventh Circuit has held the individual mandate in the Affordable Care Act unconstitutional. CNN story here. An important detail (according to the Wall Street Journal) is that the court held the unconstitutional provision severable. More analysis to follow once the opinion is linkable.

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SCOTUSBlog is running an excellent symposium on the constitutionality of the Affordable Care Act. A recent post by Abbe Gluck and Gillian Metzger touches on an important point about the remedy. They first argue that the mandate is not unconstitutional. They then argue that if the mandate is unconstitutional, then it may be severable. They write:

In the context of the Commerce Clause inquiry, the mandate is a well-tailored “necessary and proper” means by which Congress can achieve the ACA’s goals. But that does not necessarily mean that, as a remedial matter, if the mandate falls, the Court need or should do more than simply sever it and leave the rest to Congress.

This observation is accurate. The test for constitutionality under the Necessary and Proper Clause does not line up directly with the test for severability. The point has been clouded by the federal government’s litigation decision to concede the inseverability of the mandate from some of the ACA’s insurance-related provisions. This “concession” is designed to serve two functions: (1) to bolster the case for constitutionality, which may turn on whether the individual mandate is an “essential part” of a larger regulatory scheme; and (2) to increase the cost of invalidating the individual mandate.

My only objection is that Gluck and Metzger do not go far enough, endorsing only the conclusion that the mandate “may” be severable. The case can and should be made that the mandate is severable–a case that could be made along lines I suggested (albeit in a descriptive/predictive rather than forensic mode) in a guest post on Balkinization this past February:

For different reasons, the Court’s pragmatists, minimalists, and textualists have good reason to move severability doctrine away from the sort of backward-looking counterfactual speculation that yielded Judge Vinson’s holding of inseverability (i.e., the determination that the individual mandate was inseverable from the remainder of the Act because Congress would not have enacted the Act without the mandate). While a detailed doctrinal analysis to support this assertion would be more appropriate for another venue, a careful review of the Court’s severability reasoning in United States v. Booker and Free Enterprise Fund v. Public Company Accounting Oversight Board suggests directions in which the Court may be moving the doctrine. Justice Breyer’s pragmatic approach to severability in Booker is more forward-looking and consequentialist than the standard approach. Chief Justice Robert’s approach to severability in Free Enterprise Fund emphasizes the need for clear evidence that Congress intended inseverability; given the typical absence of such evidence, the result of this approach is minimalist with respect to the scope of invalidation (though the pragmatic approach is more likely to be minimalist with respect to practical consequences). Finally, textualist Justices eschew, in other contexts, the sort of exercises in imaginative reconstruction that standard formulations of severability doctrine on their face require. Perhaps they might begin to do so in this context as well. For all these reasons, it is extremely unlikely that the Supreme Court would conclude both that the individual mandate is unconstitutional and also that the remainder of the Act is inseverable.

I provide some broader reasons, not specific to the mandate question, for disallowing inseverability doctrine’s expansion of holdings of unconstitutionality in Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738 (2010).

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On days like today, when the Fourth Circuit’s only opinions are unpublished opinions in cases that never made it to oral argument (and thus have opinions written by staff counsel), you may be wondering where you can get your federal appellate news. You should wander over to Michelle Olsen’s Appellate Daily. The blog has a monthly column for National Law Journal and a very active twitter feed (@AppellateDaily).

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In United States v. Brown, the United States Court of Appeals for the Fourth Circuit reversed a district court’s sentence reduction. Judge Shedd wrote the opinion, which Judge Wilkinson and Judge Duncan joined.

Congress has provided that a sentencing reduction may be granted “in the case of a defendant who has been sentenced . . . based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. 3582(c)(2). Brown’s sentence had been entered pursuant to a Rule 11(c)(1)(C) plea agreement that stipulated a sentencing range. Even though Congress later amended the sentencing guidelines that informed the range stipulated in the agreement, the court held that the sentence could not be reduced pursuant to 3582(c)(2).

The Fourth Circuit’s decision was dictated by the Supreme Court’s fractured opinions in Freeman v. United States, in which the Court split 4-1-4. Four Justices held that a sentence entered pursuant to a Rule 11(c)(1)(C) agreement was never eligible for relief under 3582(c)(2) because the resulting sentence was based on the agreement, not on a Guidelines range. But another four Justices held that 3582(c)(2) always allowed for relief. Justice Sotomayor held that a sentence entered pursuant to 11(c)(1)(C) was eligible for relief if, but only if, the plea agreement itself explicitly referenced a sentencing guideline. Treating Justice Sotomayor’s opinion as controlling, the Fourth Circuit affirmed the sentence ordered pursuant to the agreement because it did not explicitly incorporate a particular guideline.

The decision is not notable for revealing anything about the Fourth Circuit, which had no discretion to rule as it did in light of Freeman. The decision is notable, instead, for starkly illustrating how the hierarchical nature of the federal court system dictates a certain outcome, even while the process by which it does so can legitimately be questioned. The decision also highlights how Freeman can be taken to stand for an unusual 5-4 split, one that aligns Sotomayor with Roberts, Scalia, Alito, and Thomas while placing Kennedy with Ginsburg, Breyer, and Kagan.

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That is one of the questions that came to mind in reading today’s Third Circuit decision in Doe v. Indian River School District. The Third Circuit holds unconstitutional the Indian River School District’s policy of allowing Board members to open Board meetings (often attended by students) with a prayer. In practice, this policy resulted in almost exclusively Christian prayers.

The decision has some important factual differences, but it is closely related to a circuit split between the Fourth and Eleventh Circuits that I previously mentioned.

Constitutional analysis aside for the moment, a question raised by these cases is what is meant by “sectarian” and “non-sectarian.” The opinions all seem to use “sectarian” to denote a broad religious tradition, such as Christianity, as compared with another broad religious tradition such as Islam, Judaism, and so on. To invoke Jesus’ name is to render the prayer “sectarian.” Outside of the law, “sectarian” often has a narrower meaning. When used in this narrower sense, it denotes a particular group within a broad religious tradition as compared to another group within that tradition (such as the Old Order Amish within Christianity or the Wahabi within Islam). The broader usage in the caselaw appears to follow from the idea of “nonsectarian” as referring to some sort of ceremonial deist approach to prayer, or prayer that (as Chief Justice Burger put it in Marsh v. Chambers) is in “the Judeo-Christian tradition.” With “nonsectarian” thus understood, “sectarian” is shorthand for “not nonsectarian.”

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The Fourth Circuit issued a published opinion in United States v. Bonner affirming a decision by Judge Schroeder (MDNC) that overturned Calvin Bonner’s conviction for armed robbery because the government presented insufficient evidence. The opinion by Judge Gregory (joined by Judge Wynn and Judge Diaz) contains an extensive discussion of the limitations of inferences that may be drawn from certain DNA evidence presented by the government.

Two masked gunmen, one wearing a Yankees hat, robbed a Subway. The Yankees hat was later found nearby. Forensic examination revealed multiple DNA matches. The “predominant” profile matched was Bonner. This DNA evidence, along with other circumstantial evidence, formed part of the government’s case against Bonner. The government argued that the jury could reasonably infer that Bonner was wearing the hat on the night of the robbery, but Judge Gregory concludes that “[a]ny assumption that Bonner was the last wearer is an impermissible inference by the jury.”

Looking forward, this could be the end of the line for the government’s case. The Supreme Court does not typically decide fact-specific cases like this. The government may seek rehearing en banc, though obtaining rehearing will be difficult because the decision is unanimous and all three judges on the panel are active Fourth Circuit judges.

Denial of rehearing is not, however, a foregone conclusion. A case relevant to any prognostication is United States v. Moye, 454 F.3d 390 (4th Cir. 2006) (en banc).  In Moye, the Fourth Circuit sitting en banc reached the opposite outcome from a panel opinion written by Judge Gregory that reversed a conviction for insufficient evidence. In Moye, however, there was a dissent from the panel opinion, and the panel majority was reversing rather than affirming the district court’s judgment. Interestingly, Judge Duncan, who joined Judge Gregory’s panel opinion in Moye, voted for the opposite outcome sitting en banc than the outcome she voted for on the panel. See United States v. Moye, 422 F.3d 207 (4th Cir. 2005) (vacated by the grant of rehearing).

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John O’Brien reported in Legal Newsline earlier this week that the Fourth Circuit granted the motion of several pharmacy chains to stay its decision in West Virginia v. CVS Pharmacy pending a petition for certiorari. In the underlying case, the Fourth Circuit held, by a 2-1 vote, that a parens patriae action brought by West Virginia’s Attorney General (represented by two private law firms) was not removable under the Class Action Fairness Act (“CAFA”). Judge Niemeyer wrote the opinion, joined by Judge Davis. Judge Gilman (CA6, sitting by designation) dissented. The decision affirms Judge Copenhaver (SDWV).

The issue of when a federal court can look through the form of a parens patriae case to determine that the case actually is a removable “class action” or “mass action” under CAFA may be ripe for review by the Supreme Court, in this or some other case. For a decision that, on a broad level, conflicts with the Fourth Circuit’s decision, see the Fifth Circuit’s split decision in Louisiana v. Allstate Ins. Co., 536 F.3d 418 (2008). (I use the qualifier “on a broad level” because the Fifth Circuit decision held that the removed action qualified as a “mass action” under CAFA whereas the issue in the Fourth Circuit case is whether the removed action qualified as a “class action.” Notwithstanding this difference, the cases have many similarities.)

Additional cases and analysis may be found in an excellent student note by Dwight R. Carswell in Volume 78 of the University of Chicago Law Review.

Prediction: If and when the Supreme Court addresses this issue, the Court’s decision will be in line with the conclusion reached by the Fourth Circuit and Mr. Carswell.

(N.B. The title of the post comes from the concluding paragraph of Judge Gilman’s dissent: “In sum, there is a saying that if something looks like a duck, walks like a duck, and quacks like a duck, it is probably a duck. To my mind this case “quacks” much more like a CAFA class action than a parens patriae case. I would therefore reverse the judgment of the district court and allow this case to proceed in federal court.”)

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