Archive for the ‘Fourth Circuit’ Category

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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Justin Levitt has a post with this title at Election Law Blog, with an overview and links to coverage. The decision happened yesterday, in United States v. Danielczyk. (See here for my oral argument preview and a link to AP coverage of the oral argument itself.)

Judge Gregory wrote the opinion, which was joined in by Chief Judge Traxler and Judge Diaz. This opinion must have brought Judge Gregory some satisfaction. The controlling Supreme Court decision, FEC v. Beaumont, came to the Supreme Court out of the Fourth Circuit. Judge Gregory authored a panel dissent in that case, and the outcome he advocated in dissent was adopted by the Supreme Court.

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

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

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

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

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The Fourth Circuit issued a published opinion in two argued cases today. The result in each case was to vacate and remand a decision out of the Eastern District of Virginia. That may be all that the decisions have in common, however. The first decision left the central issue open for resolution on remand after articulating the legal test for the district court to apply, while the second decision resolved the central issue while seemingly adopting a newly constrictive test.

In Oberg v. Kentucky Higher Education Student Loan Corporation, the court addressed whether corporations organized by Kentucky, Pennsylvania, Vermont and Arkansas were “persons” subject to suit under the False Claims Act, or instead “state agencies” not subject to suit under the False Claims Act as interpreted in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787-88 (2000). The appeals court held that the district court applied the wrong legal test in deciding that the corporations were not subject to suit. The Fourth Circuit vacated and remanded for district court application of the test developed under the test that is also used for the “arm of the state” prong of sovereign immunity analysis. Judge Motz wrote the opinion for the court, in which Chief Judge Traxler and Judge Keenan joined.

In Friends of Back Bay v. U.S. Army Corps of Engineers, the court held that the Army Corps of Engineers improperly issued a permit without completing an EIS under NEPA. Among other things, the court near the end of its opinion aligned the Fourth Circuit with the Second Circuit in stating that “the policy goals underlying NEPA are best served if agencies err in favor of preparation of an EIS when . . . there is a substantial possibility that the [proposed] action may have a significant impact on the environment.” I am not a NEPA expert, but the appellate court’s application of the various EIS factors and its adoption of the Second Circuit’s “substantial possibility” test seemed somewhat casual. Judge King wrote the opinion for the court, in which Judge Gregory and Judge Floyd joined.

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Over at Jost on Justice, Kenneth Jost has a post blaming the Republican party for politicizing the Supreme Court through nominations dating back to the Nixon Presidency. (HT: Howard Bashman, How Appealing) By repeating what Justice Lewis Powell has previously described as the “mindless misjoinder” of Haynsworth’s name with Harold Carswell’s, the post unfairly insults Judge Clement Haynsworth in service of an overtly partisan account of Supreme Court nomination history.

The gist of Jost’s post is that, although it is tempting to blame both major parties for politicizing the Supreme Court, “a longer historical perspective makes clear that it is the Republican Party that has politicized the Supreme Court, deliberately and wantonly, with little if any regard for the potential damage to the court’s long-term ability to maintain public confidence.” Jost then follows with a three-paragraph accounting of Republican nomination practices.*

In discussing nominations for the seat vacated by Fortas, Jost writes that “Nixon’s two rejected nominees – Clement Haynesworth and G. Harrold Carswell – insulted the court’s dignity.” Apart from misspelling Haynsworth’s name, Jost’s decision to lump these two nominees together suggests a lack of care. I’m not aware of any scholarly or popular history arguing that Haynsworth and Carswell were comparable jurists. Indeed, the record is to the contrary.

Yes, Judge Carswell was an underwhelming candidate for the Supreme Court. Carswell’s nomination occasioned  Senator Roman Hruska’s famous remarks about judicial mediocrity: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”

Haynsworth was no mediocrity. Here is what Justice Lewis Powell wrote in the foreword to a 1991 book about Haynsworth’s nomination:

[Haynsworth] was appointed by President Eisenhower in 1957 to the United States Court of Appeals for the Fourth Circuit, which was headquartered in my home city of Richmond. His appointment was widely approved by the bar, as his qualifications for the federal bench were the highest.

* * *

His obituary in the Washington Post of November 23, 1989, correctly stated that Haynsworth “brought to the bench a reputation as a top-flight lawyer . . . [whose] judicial opinions were known for the workmanlike way in which they were crafted.”

* * * When Justice Fortas resigned, the president nominated Clement Haynsworth. I strongly supported him and was successful in obtaining support for the nomination for the nomination from all but one of the past presidents of the American Bar Association. Despite wide support for Haynsworth from the bar and from leaders in the South, the Senate by a vote of fifty-five to forty-five rejected the nomination.

I repeat what I have said before: The defeat of this eminently qualified jurist was “purely political” and reflected adversely on the Senate rather than on Clement Haynsworth. He accepted his defeat with grace and without bitterness. * * *

As may be evident from what I have said, in my view Clement Haynsworth was an exceptionally able–indeed a distinguished–federal judge. As John P. Frank, the author of this book, emphasizes, Haynsworth also was “a perfect gentleman,” a loyal friend, and as fine a human being as I have ever known.

After Haynsworth was not confirmed, the president nominated G. Harrold Carswell, an undistinguished federal judge from Florida. References were frequently made in the press and elsewhere to “the Haynsworth and Carswell” nominations, despite the fact that two more dissimilar judges would not be easy to find. Yet, this mindless misjoinder of names occasionally is made even today.

* * *

America lost the services of a potentially great Supreme Court justice when the Senate defeated Judge Haynsworth’s nomination. But America’s loss was the fourth circuit’s gain. * * * Certainly, his nomination and defeat were significant events in American history. For me, at least, he left a much more significant mark on American law through his scholarly and distinguished opinions as a fourth circuit judge. Indeed, I believe it was the quality of his work on the fourth circuit after his defeat that has led many to recognize the injustice of the Senate’s 1969 vote.

Lewis F. Powell, Jr., Foreword ix-xi (emphasis added), in John P. Frank, Clement Haynsworth, the Senate, and the Supreme Court (University of Virginia Press 1991).

* There is more to disagree with in Jost’s opinionated rendition than his treatment of Judge Haynsworth. For example, whatever other objections one may have to President Reagan’s nomination of Antonin Scalia, it is simply wrong to assert that the “selection of Antonin Scalia for Rehnquist’s seat amounted to a conservative poke-in-the-eye to bipartisanship.” Justice Scalia was confirmed by a Senate vote of 98-0. But I’m only concerned in this post to take sharp issue with Jost’s characterization of Haynsworth.

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The mastermind of a major mortgage fraud conspiracy in North Carolina was able to shed his money laundering convictions with a merger argument. In United States v. Cloud, the Fourth Circuit held today that money laundering convictions premised on the payment of money to third parties simply to cover essential operating expenses for the underlying fraud merged into the underlying fraud and could not be punished under a since-amended federal money laundering statute. Judge Diaz wrote the opinion for the court, in which Judge Gregory and Judge Davis joined.

This decision in Cloud rests on the Fourth Circuit’s decision in United States v. Halstead, 634 F.3d 270 (4th Cir. 2011). That case sets forth Fourth Circuit’s interpretation of the Supreme Court’s 4-1-4 decision in United States v. Santos, 553 U.S. 507 (2008).

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