Archive for November, 2011

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

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

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

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

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

As they say, read the whole thing.

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The Fourth Circuit has issued a published opinion in United States v. Higgs denying 2255 relief on Brady and Strickland claims premised on the government’s use of Comprehensive Bullet Lead Analysis (“CBLA”) evidence. Judge Traxler wrote the opinion, in which Judges Shedd and Keenan joined.

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The Fourth Circuit yesterday vacated another enhanced sentence under the Armed Career Criminal Act in light of its August 2011 8-5 en banc decision in United States v. Simmons (prior discussions here and here). The panel that issued the unpublished per curiam opinion in United States v. Bellamy was composed of Judges Motz, Agee, and Wynn.

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A Fourth Circuit panel today ordered habeas relief to overturn a South Carolina capital conviction. The 2-1 decision was issued 14 months after argument. The underlying crime took place almost 30 years ago (in January 1982).

Judge King wrote the opinion for the panel in Elmore v. Ozmint, which was joined in by Judge Gregory. Judge Wilkinson wrote a dissenting opinion.

The combined opinions take up 194 pages (163 for the majority, 31 for the dissent).

Here are the first two paragraphs of Judge Wilkinson’s dissent:

It would be amusing, if it were not so very serious, to imagine for a moment the majority’s visit to a haberdashery. The visit would be a fun one, because my friends in the majority would try on every hat in the shop, except, of course, the one that might conceivably fit. Here, the majority dons the headwear of the jury, the state trial court, the state appellate court, the state post-conviction relief (PCR) court, and the federal district court, but then inexplicably leaves the premises without a passing glance at the cap befitting federal appellate judges reviewing under AEDPA the considered judgment of  a state court that a defendant’s counsel was not ineffective  and that there was no prejudice arising from that counsel’s  allegedly deficient performance.

The majority spends a considerable amount of time defending its conclusion that Edward Lee Elmore is entitled to habeas relief on his ineffective assistance of counsel claim.  But as Mark Twain is reputed to have said, “The more you explain it, the more I don’t understand it.”  SEC v. Chenery  Corp., 332 U.S. 194, 214 (1947) (Jackson, J., dissenting).  Simply put, the majority’s rejection of the South Carolina  PCR court’s determination that defense counsel’s alleged  deficiencies did not result in prejudice cannot be squared with  the deferential standards required under AEDPA, the facts of  this case, or Supreme Court precedent. And in the course of its decision, the majority unjustly impugns the criminal justice system of South Carolina, slanders a deceased man who simply had the misfortune of discovering his neighbor’s mutilated body, and grants habeas relief to a prisoner whom overwhelming evidence suggests brutally raped and murdered an  elderly woman in her home. For these reasons, I respectfully dissent.

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Judge Keenan wrote a for a unanimous panel (consisting also of Judges King and Davis) today in the published opinion in United States v. Spence. The opinion begins:

In this appeal, we consider whether Troy Spence’s sentence for possession of child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B), was properly enhanced as provided in 18 U.S.C. § 2252A(b)(2) based on his prior conviction under South Carolina common law for assault and battery of a high and aggravated nature (ABHAN). The sentencing enhancement at issue applies when a defendant has a prior conviction under certain federal statutes or a prior conviction under a state law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” (the sexual abuse enhancement). 18 U.S.C. § 2252A(b)(2).

The district court, employing the modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990) and Shepard v. United States, 544 U.S. 13, 20 (2005), relied on the indictment charging the ABHAN offense to conclude that the ABHAN conviction qualified as a predicate offense under the sexual abuse enhancement. Spence argues on appeal that the district court erred in applying the modified categorical approach, and that the court should have limited its consideration of the prior conviction to a categorical analysis only. We disagree with Spence’s argument, and affirm the district court’s judgment.

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The Fourth Circuit issued an unpublished per curiam opinion today in Scott v. Eaton Corp. Long Term Disability Plan. The panel, composed of Judges Motz, King, and Duncan, unanimously reversed a district court decision (Senior Judge Herlong, D.S.C.) that reversed a disability plan’s denial of benefits. The appellate panel accepted the plan’s argument that its decisionmaking process was sound and that its ultimate decision was supported by substantial evidence. After setting forth the law that an ERISA plan administrator’s decision is reviewed for abuse of discretion, the court wrote:

The record is clear that Eaton thoughtfully considered the views of Dr. Riley. Eaton and its  reviewers discussed Dr. Riley’s views, but gave them little weight because of their inconsistency and the fact that many of them were not based on objective evidence. Furthermore, Dr. Riley’s conclusions–those of a well-meaning family doctor–were contradicted by several specialists, who gave no indication of unreliability. It was not unreasonable to discount Dr. Riley’s conclusions in these circumstances.


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Ruth Marcus of the Washington Post argues in an op-ed that a Supreme Court ruling on the constitutionality of the individual mandate should come sooner rather than later. The argument targets some of the prudential reasoning at the end of Judge Kavanaugh’s dissent in Seven-Sky v. Holder while passing over Kavanaugh’s “technical interpretation of the statute.” Marcus argues that “the arguments of Kavanaugh and other advocates of constitutional can-kicking are unconvincing.” Fine. But whatever one’s prudential views about timing, they cannot overcome what a straightforward textual interpretation of the AIA requires. For that reason, advocates of AIA avoidance should aim their arguments at Congress in seeking an exception from the AIA (as I have previously argued).

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David Rivkin & Lee Casey have an op-ed in the Wall Street Journal that contains some misleading argument about the federal tax Anti-Injunction Act (alternate link here). Here are the key paragraphs:

Finally, the Supreme Court has also agreed to consider one of the highly technical arguments raised in the case, whether the federal Anti-Injunction Act (AIA) prohibits a challenge to the individual mandate before the requirement actually takes effect in 2014. This issue has always been a red herring, arising because the government tried to argue that the individual mandate can be justified under Congress’s power to tax, even if it is insupportable under the power to regulate interstate commerce.

Virtually every lower court to consider ObamaCare—both those that have struck down the law as unconstitutional and those that have upheld it—has agreed that the AIA does not apply here. There is every reason to believe that the Supreme Court will do the same. The AIA was designed to protect federal tax-collection activities, generally requiring that a tax be paid before its legality can be challenged in court. The mandate, of course, is not a tax—but an affirmative regulatory requirement. It is enforced by a penalty. The only connection with the federal tax apparatus is that the penalty will be collected by the Internal Revenue Service from tax refunds otherwise due to violators, and its application here would only postpone challenges to the individual mandate to 2014.

A few problems with these two paragraphs:

(1) The federal tax AIA bar does not arise “because the government tried to argue that the individual mandate can be justified under Congress’s power to tax.” In fact, such an assertion is doubly wrong. First, the issue arises because the statutory text of the ACA requires that the tax penalty be assessed and collected in the same manner as other tax penalties that cannot be challenged pre-enforcement because of the federal tax Anti-Injunction Act. Second, Rivkin & Casey’s opposing counsel disclaim a connection between the constitutional justification of the tax penalty as a tax and the operation of the AIA as a bar. Although one would not know it (and would probably think the opposite) from reading the Rivkin & Casey op-ed, the Supreme Court has held that a challenge to a penalty may be barred by the AIA even if the penalty is not “justified under Congress’s power to tax.”

(2) The split on the AIA in the circuit courts of appeals is 2-1, the same as the split on the unconstitutionality of the individual mandate. If these splits were predictive, then Rivkin & Casey should predict that their challenge will lose on the merits.

(3) The connection between the tax penalty for non-compliance with the insurance requirement and the “federal tax apparatus” is not limited to the means of enforcement. The calculation of the penalty (and therefore the assessment of the amount due on one’s tax return) depends on other elements of an applicable individual’s tax return.

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Here’s an interesting tidbit from a Times-Dispatch story about a bank robber who was accidently released from the Richmond City Jail and promptly returned to rob the same SunTrust bank branch that he had robbed immediately prior to his jailing:

In his ramblings, Emile apologized profusely to witnesses, including the teller he robbed April 30 at the SunTrust branch in the 1800 block of West Broad Street. But he said he had meant her no harm and cast himself as a fool who committed a crime against a corporate entity and not against an individual. Prosecutor Elizabeth A. Hobbs argued that the robbery was a violent crime that terrified the teller.

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Michael Gerson has some strong words in today’s Washington Post about the Obama administration’s stance vis-a-vis Catholic institutions. Here’s a taste:

HHS has drawn conscience protections so narrowly that Catholic colleges, universities and hospitals — any Catholic institution that employs and serves non-Catholics — will be required to offer health coverage that includes contraception and drugs that cause abortion. In global health grants, new language is appearing that requires the integration of family planning and “reproductive health” services, effectively barring the participation of Catholic institutions. Archbishop Timothy Dolan, president of the USCCB, calls these policies an “assault which now appears to grow at an ever-accelerating pace in ways that most of us could never have imagined.”

The main victims of this assault are not bishops but the poor and vulnerable. USCCB-sponsored human trafficking programs, for example, provide employment assistance, legal services, child care and medical screening. But because case managers won’t refer for abortions, HHS would rather see these programs shut down in favor of less effective alternatives. This form of anti-religious extremism counts casualties.

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Today’s split decision in United States v. Powell bristles with strong language on both sides. Writing for a panel majority consisting of himself and Judge Floyd, Judge Shedd upbraids the government and places this case among a trio of recent cases in which the government failed to justify a Terry stop and frisk:

In a case such as this, where law enforcement officers briefly pat down a person for safety reasons, reasonable suspicion that the person is armed and dangerous is necessary in order for the patdown to be lawful under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1 (1968). Earlier this year, in United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011), we noted “our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Twice in the past few months, we reiterated this concern. See United States v. Massenburg, 654 F.3d 480, 482 (4th Cir. 2011); United States v. Digiovanni, 650 F.3d 498, 512 (4th Cir. 2011). In all three cases, we held that the Government failed to meet its minimal burden of articulating facts sufficient to support a finding of reasonable suspicion. Today, we once again are presented with a case in which the Government has attempted to meet its burden under Terry by cobbling together a set of facts that falls far short of establishing reasonable suspicion. For this reason, we vacate the judgment.

Responding in dissent, Judge King distinguishes between the justification for a Terry stop and the justification for a patdown, finding that the latter was present:

When a police officer’s life is on the line, common sense tells us that he should sooner be reasonable in his suspicion that a suspect may be armed and dangerous than in suspecting that a passerby is up to no good. The risk of dismissing a suspicion that a suspect may be armed is inherently perilous to arresting officers. As a result, the officers in this case were entitled to take reasonable steps to protect themselves and others after they received confirmation that Powell may be armed, even if that evidence might not have been sufficient for an initial Terry stop.


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It’s been a busy week here in Richmond, and I’ve fallen behind a bit in passing along notable Fourth Circuit opinions. Here’s a catch-up post reporting on six published opinions: five from this past week, and one from the week before that.


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Brad Joondeph has a reminder at ACA Litigation Blog that tomorrow’s conference at the Supreme Court will include discussion of five of the six cert petitions addressing the constitutionality of the minimum essential coverage provision. I add to that a reminder that the University of Richmond Law School is hosting a conference about the ACA litigation on Friday November 11. This conference is about “everything but the merits” of the healthcare litigation. Details available in the conference brochure.

(Note to Virginia lawyers: The program has been approved for 6 MCLE credits; registration is free.)

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The D.C. Circuit’s opinion upholding the minimum essential coverage provision is available here. Brad Joondeph has a quick summary at ACA Litigation Blog. More to come here on the Anti-Injunction Act, which split the panel. Judge Kavanaugh’s dissent is, in my estimation, persuasive and powerfully reasoned. The nature of the 2-1 circuit split on the applicability of the Anti-Injunction Act suggests that, at the very least, the issue is a difficult and close one.

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