Some early observations on the Fourth Circuit’s en banc pregnancy center compelled speech cases

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

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

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

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

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

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

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

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

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

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No problems with pregnancy centers in Montgomery County, but there ought to be a law?

After seeing the link from Howard Bashman’s How Appealing and some of my prior posts about the Fourth Circuit pregnancy center cases , my friend (and CUA lawprof) Mark Rienzi sent me the plaintiff’s memorandum of law in support of summary judgment in the Montgomery County, Maryland pregnancy center compelled speech case. That case, argued the same morning as the Baltimore case, has proceeded through full discovery and to summary judgment briefing while the appeal of the preliminary injunction has been pending at the Fourth Circuit. This summary judgment record is not before the Fourth Circuit in the en banc appeal, but it is the record to which the legal standard identified by the Fourth Circuit will be applied by the district court.

I am not an impartial observer, as I was already convinced that the Montgomery County and Baltimore ordinances were unconstitutional and I have long supported the pro-life mission of the pregnancy centers targeted by the ordinances. But I believe that an impartial observer would share my assessment that the record in the Montgomery County case firmly establishes the unconstitutionality of the Montgomery County ordinance.

Reviewing this summary judgment memorandum reminds me of two episodes in the oral arguments over the Baltimore and Montgomery County ordinances.

First, near the end of the argument over the Baltimore ordinance, Judge King and Judge Wilkinson had an interchange in which Judge King advocated more discovery while Judge Wilkinson asserted that discovery is not the friend of the First Amendment (his point being that the time it takes to engage discovery is time during which protected speech may be unconstitutionally silenced). The discovery set forth in this brief shows that both judges are right and wrong in different ways. At least as far as the Montgomery County ordinance is concerned, discovery has been the friend of the First Amendment in the sense that it establishes the unconstitutionality of the ordinance. I expect discovery will establish the same about the Baltimore ordinance if that is the disposition ordered by the Fourth Circuit. But extensive discovery was not necessary. Under strict scrutiny, it is not the burden of the challengers to adduce evidence showing that the ordinance is unconstitutional. It is the burden of the government to show that the ordinance is the least restrictive means of accomplishing a compelling government interest. And the evidence on which the legislature acted should have been set at enactment such that extensive discovery is unnecessary.

Second, near the end of the argument over the Montgomery County ordinance, Rienzi as counsel for the challengers emphasized that the case was “fully teed up” for decision by the district court. In my estimation, this brief makes clear why he thought that was worth emphasizing.

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Artful characterization of allegedly misleading advertisement in Baltimore pregnancy center oral argument

Something has been bothering me for a while about the en banc oral argument last month over a Baltimore ordinance that requires “limited-resource pregnancy centers” to post a notice that they do not refer for abortion or birth control services. I’ve now done some follow-up research. Others may view the results of this research differently, but in my view, counsel for Baltimore’s artful characterization of an advertisement in the record probably misled others present at the argument in the same way that it (temporarily) misled me.

At the argument, counsel for Baltimore asserted that the city was trying to combat “consumer deception in the offer of pregnancy services.” A powerful part of this argument came just two minutes in, when counsel pointed the court to an “Option Line” advertisement in the Joint Appendix that she described as “clearly and inherently misleading.” Counsel argued that the advertisement  was misleading because it offered “medical services” including “abortion” and “morning-after pill,” even though none of the centers actually offered abortions or the morning-after pill. Until near the end of the argument, none of the judges questioned counsel’s characterization of the Option Line advertisement even though she pointed to the page in the Joint Appendix where this “clearly and inherently misleading” advertisement could be found. And by the time one judge asked about it, it seemed as if the rest of the judges had already accepted the characterization.

This has been bothering me because, shortly after the argument, I googled “Option Line” and I could not see how someone scanning the Option Line website would get the impression that one could use the referral service to obtain either an abortion or the morning-after pill. I thought then that, unless Option Line’s advertising had changed substantially between passage of the ordinance (when the Baltimore City Council was allegedly concerned about deception) and the afternoon of the oral argument (when I reviewed the Option Line website), there was a real possibility that counsel for Baltimore had artfully and somewhat misleadingly characterized the advertisement in the JA.

I recently listened to the audio to verify my notes, and I pulled the Joint Appendix off of PACER to check the actual advertisement.  I’ve posted the relevant JA page here. The advertisement contains the words “abortion” and “morning after pill” and “medical services.” But, in my view, the advertisement cannot reasonably be viewed as offering the “medical services” of either “abortion” or the “morning-after pill.” In relevant part, the advertisement states:

Our consultants will connect you to nearby pregnancy centers that offer the following services:

• Free pregnancy tests and pregnancy information
• Abortion and Morning After Pill information, including procedures and risks
• Medical services, including STD tests, early ultrasounds and pregnancy confirmation
• Confidential pregnancy options

There is an obvious difference between offering information about abortion and the morning-after pill, on the one hand, and offering medical services such as the provision of abortion and the morning-after pill, on the other hand. Baltimore’s argument glides right over this difference. Unfortunately, Baltimore’s artful characterization of this advertisement mattered to the oral argument. Approximately 35 minutes into the argument, for example, Judge Shedd mentioned to counsel for the centers that “we’ve heard about the website that contained the false information,”thus suggesting that he accepted counsel’s artful characterization of the Option Line website.

Near the very end of the argument (around the 1:14:00 mark on the audio), Judge Niemeyer asked counsel whether Baltimore had any evidence that the clinics regulated by the ordinance “have advertised that they do provide abortions, falsely.” She responded “yes,” pointing to the Option Line advertisement. The argument continued:

Q (Niemeyer): What does it say, it says, “we provide abortion”?

A (Counsel): It says we provide medical services, quote, and then it also, quote, abortion and morning-after pill. . . .

* * *

Q (Wilkinson): That’s false advertising, isn’t it? It can be addressed in a variety of ways . . .

A (Counsel): It’s false. It is. . . .

As I’ve previously observed, the drift of this argument seemed to be that the case would be sent back for more discovery. If that happens, I would be surprised if Baltimore is able to show that any of the clinics regulated by their ordinance “have advertised that they do provide abortions, falsely.” As I read it, and as I suspect most other fair-minded readers would read it as well, the advertisement featured by counsel for Baltimore at oral argument does nothing of the sort.

In light of all this, it will be interesting, regardless of the outcome, to see what use the judges of the Fourth Circuit make of the record that is already before them.

[UPDATE: The companion case from Montgomery County has gone through discovery, although that record is not before the Fourth Circuit at this time. A link to the plaintiff’s memorandum of law in support of summary judgment, which contains a discussion of the evidence in that case, is in the post above.]

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Report from en banc Fourth Circuit oral argument in pregnancy center compelled speech cases

This morning’s lively en banc proceedings at the Fourth Circuit in abortion-counseling-related First Amendment challenges did not produce clear signs of a winner, but raised questions (at least in my mind) about what legal issues the court took the cases en banc to address. There was virtually no discussion of commercial speech doctrine, and no judge or set of judges developed a line of questioning that would seemingly lay the foundation to displace strict scrutiny as the appropriate standard of review. That said, oral argument reveals only so much. After all, the panel dissent in one of the cases contained an analysis of commercial speech that was surprisingly detailed in light of the dissenting judge’s failure to lay the predicates for that analysis in oral argument before the panel. It is possible that something similar could happen here–though it is much harder to make that kind of move when writing for a number of judges rather than just for oneself.

The en banc court heard back-to-back oral arguments in First Amendment challenges to Baltimore and Montgomery County (MD) ordinances requiring certain pregnancy counselors to post signs about the limited nature of the services that they offer. The court’s decision to take these cases en banc vacated panel decisions that granted First Amendment victories to the challengers. (For my earlier coverage of the panel decisions, see here; for my earlier coverage of the oral argument to the panel, see here.) Judge Niemeyer authored those vacated panel decisions, which Judge Agee joined, while Judge King dissented. That configuration of a Niemeyer majority with a King dissent produced back-to-back en banc arguments earlier this year in cases involving the liability of military contractors for activities at Abu Ghraib and other locations in the Iraq war zone. Those arguments resulted in procedural holdings about the lack of appellate court jurisdiction rather than definitive merits rulings. Something similarly limited with respect to the merits may result from this morning’s arguments as well.

As the panel dissenter, Judge King was one of the most vocal questioners at oral argument in both cases. In the Baltimore case, Judge King (along with a few other judges) emphasized the need for more discovery and a better developed record. Given the substance of his dissent in the Baltimore case and the tenor of questioning by other judges, my best guess is that the en banc court will vacate the district court decision in the Baltimore case and remand for further development of the underlying facts. That is not to say I think that is the best decision, only that I think it the most likely decision in light of the limited information revealed at oral argument.

In the Montgomery County case, Judge King returned repeatedly to the “abuse of discretion” standard for appellate review of a decision to grant or deny a preliminary injunction. Even when counsel for Montgomery County correctly noted (against interest) that legal issues were to be reviewed de novo within the context of the abuse of discretion standard for the ultimate decision to grant or deny, Judge King continued to highlight the abuse of discretion standard. Some of Judge King’s questions dovetailed in some respects with Judge Wilkinson’s repeated invocations of “balance” in First Amendment analysis. These emphases, together with some other indicators from oral argument, may suggest a narrow affirmance of Judge Chasanow’s decision. That decision identified a difference between the two sentences that the ordinance compelled centers to include on their signs, and split the difference between the two. Judge Chasanow upheld the portion of the ordinance requiring centers to state that they do not have a licensed medical professional staff, but enjoined the requirement to state that the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider. Judge Wilkinson thought this split-the-difference approach was a sensible balance, and he may not have been alone in that view.

While I have more confidence with respect to the guess about the Baltimore case than the Montgomery County case, I do not have a high level of confidence in either guess. The military contractor en banc cases earlier this year provided much clearer indications of where the center of gravity was on the court at the time of argument. By contrast, there were a number of cross-cutting issues and interventions in these argument.  During portions of the second argument, for example, Judge Gregory and Judge Motz seemed more skeptical of Montgomery County’s ordinance than Judge Wilkinson, who in turn seemed more speech-protective than some of the other judges during argument of the Baltimore case.

Because both of these appeals addressed the issuance of a preliminary injunction, the merits issue of the constitutionality of both ordinances was one step removed from straight-up consideration by the court. Issuance of a preliminary injunction depends on a court’s assessment of the moving party’s likelihood of success on the merits. This is a predictive judgment. If the Fourth Circuit were to hold that the district court in the Baltimore case should not have found a likelihood of success on the merits without allowing for further factual development, while the district court in the Montgomery County case made a reasonable split assessment of the movant’s likelihood of success in that case, that would still leave open the possibility that both ordinances could be completely enjoined down the road.

In my view, that would be the correct ultimate outcome in both cases. The reason for this assessment is the First Amendment standard of review. Both district courts, as well as all three judges on the original panel, thought that strict scrutiny was the appropriate merits standard of review for the preliminary injunction in the Montgomery County case. They were right. Judge King thought that discovery would have helped clarify the appropriate standard of review in the Baltimore case. He argued that Baltimore might have been able to develop evidence to show that the Baltimore ordinance regulated commercial speech. In my view, this argument is based on legal error.

At least as far as the questioning at today’s oral arguments is concerned, the possibility that commercial speech doctrine should apply on remand is the dog that didn’t bark. The qualifier “at least as far as the questioning reveals” is an important one. While Judge King’s questioning at the panel argument was largely favorable to the City, Judge King did not develop lines of questioning to support the analysis that his dissenting opinion ultimately contained. Perhaps a narrow procedural holding would be just an opening move in a push to ultimately apply the standard of review appropriate to regulations of commercial speech. If there is support for that kind of change in the doctrine, it was not revealed at oral arguments today. That is not to say that it did not exist, only that the arguments provided no evidence of the existence of such support. After this morning’s arguments, it remains difficult to see how either Baltimore or Montgomery County can avoid the application of strict scrutiny under First Amendment doctrine as it currently stands.

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Pregnancy centers win free speech victories over Baltimore and Montgomery County in Fourth Circuit

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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CA4: Anti-MLS Complaints State a Claim Under Section 1 of the Sherman Act

The Fourth Circuit held today in Robertson v. Sea Pines Real Estate that putative class actions challenging two MLS services in South Carolina under Section 1 of the Sherman Act could go forward. On interlocutory appeal, the appeals court affirmed denial of the defendants’ motion to dismiss. Judge Wilkinson wrote the opinion for the Court, in which Judge King and Judge Agee joined. The decision is notable not only for its discussion of Section 1 caselaw, but also for its application of Twiqbal.

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Split Fourth Circuit panel vacates removal order based on Chevron step-one determination about section 212(h) of the INA

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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Cell carriers and localities split victories in Fourth Circuit cell-tower cases

T-Mobile won yesterday in the Fourth Circuit, while New Cingular Wireless lost last week in the same court. Both cases involved challenges to the denial of applications to erect cell towers in localities. Both appeals resulted in affirmances of the relevant district court decision, supporting the appellate court’s description of these kinds of cases as fact-intensive.

Judge Diaz wrote yesterday’s opinion for the court in T-Mobile Northeast LLC v. Newport News, in which Judge King and Judge Gergel (DSC) joined.

Judge Agee wrote the opinion for the court in New Cingular Wireless, PCS, LLC v. Fairfax County Board of Supervisors, in which Judge Davis and Judge Floyd joined.

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Report from oral argument in Fourth Circuit appeals of First Amendment wins by pregnancy resource centers in Maryland

A Fourth Circuit panel consisting of Judge Niemeyer, Judge King, and Judge Agee heard oral arguments yesterday in two First Amendment challenges brought by pregnancy resource centers in Maryland. I attended both arguments. From the content and tenor of the proceedings, it seems very likely that the court will affirm the two district courts whose rulings were at issue, both of which held that ordinances compelling speech by pregnancy resource centers violate the First Amendment.

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Fourth Circuit addresses line between questions of fact and questions of law in a false claim of citizenship case

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

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

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

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NCUC approval of ICAs affirmed by Fourth Circuit in appeal brought by CMRS providers from judgment in favor of RLECs

If the title of this post means something to you, then you might find of interest the Fourth Circuit’s opinion today in New Cingular Wireless PCS, LLC v. Finley. Judge Davis wrote the opinion for the Court, which was joined in by Judge Agee and Judge Keenan.

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Virginia FOIA survives constitutional challenge under the Privileges and Immunities Clause and the dormant Commerce Clause

Virginia’s FOIA allows “citizens of the Commonwealth” access to certain government records. A citizen of Rhode Island and a citizen of California tried to use the law to get records, but they were rebuffed because they were not Virginians. They sued, contending that Virginia’s FOIA violates the Privileges and Immunities Clause in Article IV and the dormant Commerce Clause. They lost.

Judge Agee wrote the opinion in McBurney v. Young, in which Judge Niemeyer and Judge Gregory joined.

The challenge relied heavily on a Third Circuit ruling, Lee v. Minner, 458 F.3d 194 (3d Cir. 2006), that held unconstitutional a similar Delaware law. Judge Agee wrote that the decision in Lee extended the Privileges and Immunities Clause beyond what the Supreme Court has staked out, and that, in any event, the right at issue in that case was different from the right at issue in the Fourth Circuit case.

(Note: This is the second time that the case has been to the Fourth Circuit. The first appeal centered on standing. See McBurney v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010).)

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Profit margin on cocaine resale

The Fourth Circuit yesterday released an unpublished per curiam opinion in United States v. Stallworth affirming the life sentences of two individuals convicted of participating in a drug-trafficking conspiracy after having two prior felony drug convictions. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Agee.

According to the opinion, the conspiracy “would purchase a kilogram of cocaine for around $25,000 and then would cook it into crack cocaine, which members were able to sell for between $36,000 and $42,000.” If these numbers are accurate, they are surprising. For an activity that carries such serious consequences, one would expect the profit margin to be higher.

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Split panel in Fourth Circuit on sovereign immunity of U.S. when sued under Title VII in state court

The dueling opinions in today’s Fourth Circuit decision in Bullock v. Napolitano address whether Title VII waives the sovereign immunity of the United States to a damages suit in state court by authorizing suit in federal court.

By a 2-1 vote, the Fourth Circuit answered this question in the negative. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Judge Gregory dissented.

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Fourth Circuit order denying relief to Perry and Gingrich in challenge to Virginia ballot access rules

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

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

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

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

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Two Fourth Circuit rulings on civil commitment of sexually dangerous persons

The Fourth Circuit yesterday issued two published opinions dealing with the civil commitment of sexually dangerous persons, United States v. Timms and United States v. Hall. The two cases were decided by unanimous vote of a panel made up of Chief Judge Traxler, Judge Agee, and Judge Motz. They are follow-up cases to the Supreme Court’s decision in United States v. Comstock, which upheld Congress’s power to enact § 4248 under the Necessary and Proper Clause.

The opinion in Timms, by Judge Agee, contains an overview of the evolution and current state of judicial treatment of the “civil commitment system established by § 4248 as part of the Adam Walsh Child Protection and Safety Act of 2006.” The decision reverses a district court’s dismissal of a commitment action against Gerald Timms. The Fourth Circuit concludes that § 4248 does not violate the Equal Protection Clause and that Timms’s right to due process was not violated by extended delays in the consideration of his commitment (large chunks of which were due to the lengthy constitutional challenge to § 4248 resolved by the Supreme Court in Comstock).

In United States v. Hall, authored by Chief Judge Traxler, the Court of Appeals affirmed the district court’s determination that the government had failed to prove by clear and convincing evidence that Hall is sexually dangerous.

These two decisions are important because the vast majority of those that the federal government has certified as sexually dangerous persons are in FCI-Butner, the federal correctional facility in Butner, North Carolina. According to the opinion, the government has certified 130 persons as “sexually dangerous,” and 116 of those certifications were filed in the Eastern District of North Carolina. (Last February, the Raleigh Public Record did a two-part story (here and here) on the men at FCI-Butner being held as “sexually dangerous.”)

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The last of the Fourth Circuit’s unpublished opinions after argument in 2011

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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Fourth Circuit rejects vagueness challenge to conviction for producing a false identification document that “appears to be issued” by the United States

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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Fourth Circuit addresses nondebtor release, injunction, and exculpation provisions in Chapter 11 reorganization

The Fourth Circuit issued a published opinion today that addresses “the circumstances under which a bankruptcy court may approve nondebtor release, injunction, and exculpation provisions as part of a final plan of reorganization under Chapter 11 of the Bankruptcy Code.” The opinion also contains a discussion of the equitable mootness doctrine. Judge Diaz wrote the opinion in Behrmann v. National Heritage Foundation, in which Chief Judge Traxler and Judge Agee joined.

The court held that equitable relief provisions like those at issue in the case are permissible under certain circumstances, but that the bankruptcy court must make specific findings before ordering such relief (which was not done here). The court further held that the appeal was not equitably moot.

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Fourth Circuit joins Seventh and First in holding that bankruptcy court order denying motion to dismiss as abusive under § 707(b) is a final order

The Fourth Circuit held unanimously earlier this week in McDow v. Dudley that a bankruptcy court’s order denying a motion to dismiss as abusive under § 707(b) is an appealable final order. Judge Niemeyer wrote the opinion for the Court, which was joined in by Judge King and Judge Agee.

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Fourth Circuit picks one out of 13 issues to review in consolidated criminal appeals, and affirms after watching the videotape

In United States v. Eligwe, a Fourth Circuit panel consisting of Judge Wilkinson, Judge Shedd, and Judge Agee affirmed the convictions and sentences of three individuals for various offenses related to bank robbery. Of the thirteen issues raised on appeal, the panel opinion addresses only one, finding the other twelve to be without merit. The issue reviewed was whether one of the appellants had unambiguously invoked his right to counsel, so as to require cessation of questioning. To resolve this issue, the court went to the videotape. Judge Shedd wrote for a unanimous panel:

We find that Eligwe did not make an unambiguous request for an attorney. When read out of context, Eligwe’s isolated statements could perhaps be read as such a request. However,  after reviewing the video-taped interview, we conclude that no reasonable officer in light of the circumstances would have  understood those statements to be an unequivocal request for a  lawyer. Eligwe spoke quickly and with a heavy accent, and when  Mason attempted to ask Eligwe clarifying questions, Eligwe spoke over Mason and continued talking about the case. Furthermore, even if Eligwe had invoked his right to counsel, the district court did not err in introducing the custodial statements because Eligwe made the statements at issue after he reinitiated communication with Mason.

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4 years for an illegal liquor operation and Social Security disability fraud

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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How (not) to end up in a published Fourth Circuit opinion or order

The Fourth Circuit today issued two published opinions and a published order. A look at the three together reveals various ways in which one can end up in a published Fourth Circuit opinion or order, none of them very attractive.

Meyer v. Astrue is an appeal about the denial of Social Security disability benefits. In an opinion by Judge Motz, joined in by Judge King and Judge Duncan, the Fourth Circuit reversed the denial of benefits because the court could not determine from review of the record whether substantial evidence supported the denial of benefits. The facts portion of the opinion begins with the sentence: “In December 2004, Meyer fell 25 feet out of a deer stand while hunting and suffered significant injuries.”

Li v. Holder involves a petition for review of an order of the BIA remanding petitioner’s case to the IJ. Li is a Chinese citizen who entered the country illegally, was found to be removable, and was granted a voluntary departure. The BIA upheld a denial of Li’s application for adjustment of status, but remanded for the IJ to grant a new period of voluntary departure to provide certain “required advisals” that the IJ previously failed to provide. Li petitioned for review. The government contended that the Fourth Circuit lacked jurisdiction. The court disagreed based on binding panel precedent that it found had not been disturbed by the Supreme Court’s decision in Dada v. Mukasey, 554 U.S. 1 (2008). The court nevertheless declined jurisdiction on prudential grounds. The opinion is interesting for its discussion of the circumstances under which intervening Supreme Court precedent displaces prior circuit precedent–not often. Judge Agee wrote the opinion, in which Judge Wilkinson and Judge Shedd joined.

The published order today was a public admonishment of a New York attorney based on five violations of the rules of professional misconduct. It seems piling on to repeat the allegations and plaster the attorney’s name around the internet more, so just read the admonishment if you’re interested.

There were a few other unpublished opinions in argued cases, the most notable of which is Haile v. Holder, in which a panel vacated a denial of asylum. The beneficiary of this ruling is a citizen of Eritrea who asserted past persecution and a well-founded fear of future persecution based on her political opinion and her membership in a social group (which was her family, as her father had been persecuted for his political activities). Judge Gregory wrote the opinion, in which Judge Motz and Judge Shedd joined.

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Fourth Circuit ACCA decision on divorced-from-reality law professor hypotheticals, common sense, and floating fast-food restaurants

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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4th Circuit vacates judgment against super-cautious former trustees of ERISA plan

The Fourth Circuit today vacated  a judgment issued against the former trustees of an ERISA plan. Judge Agee wrote the opinion  in Plasterers’ Local Union No. 96 Pension Plan v. Pepper, which was joined in by Judge Duncan and Senior Sixth Circuit Judge Damon Keith.

After losses in the 1970s and ’80s, the former trustees adopted a very conservative investment plan and refused to consider deviations from it. Consequently, the plan generated lower returns than it would have adopted had it followed a more aggressive strategy.

The opening paragraph of the opinion:

Edgar Pepper and James Lertora (collectively “the Former Trustees”), former trustees of the Plasterers’ Local Union No.96 Pension Plan (“the Plan”), appeal from the judgment of the United States District Court for the District of Maryland in favor of the current trustees of the Plan (“the Current Trustees”). The district court’s judgment was based on its finding that the Former Trustees breached their fiduciary duties under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., regarding the investment of Plan assets as set forth under 29 U.S.C. § 1104(a)(1)(B) and (C). On appeal, the Former Trustees challenge the district court’s determination as to liability, its method of calculating damages, and the award of attorneys’ fees. We conclude that the district court erred as to each of these issues, and therefore vacate the judgment and remand the case for further proceedings.

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