Posts Tagged ‘Fourth Circuit’

The Fourth Circuit yesterday granted the motion of Ronald Evans to filed a successive habeas application based on Graham v. Florida, 130 S.Ct. 2011 (2010), in which the Supreme Court held that the Constitution forbids the imposition of a sentence of life without parole for a juvenile not convicted of homicide. The panel’s unpublished opinion explains that Evans is currently serving a sentence of life imprisonment without parole after being convicted of six narcotics crimes and a criminal conspiracy that extended some time beyond his eighteenth birthday.

The government agreed that Graham could support a successive petition in an appropriate case. But the government disputed that this was such a case. The panel’s one-paragraph unpublished per curiam opinion explains neither the basis of the government’s position nor the panel’s reasons for rejecting it. The opinion states simply that the motion is granted “[b]ecause Evans has made a ‘prima facie showing’ that his ‘claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable'” (quoting 28 U.S.C. 2244(b)(2)(A)).

The panel consisted of Judge Wilkinson, Judge Motz, and Judge Davis.

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The Senate cannot agree on much these days, it seems, but the Senate did unanimously agree today that Judge Henry Floyd of South Carolina should be confirmed to the United States Court of Appeals for the Fourth Circuit. James Rosen of McClatchy Newspapers has the story here. The Fourth Circuit now has 14 active judges (out of a possible 15). (HT: How Appealing)

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One of the top stories currently running at The American Spectator is “Obamacare’s Last Best Hope”, by David Catron. The bio describes Mr. Catron as a “health care revenue cycle expert” who blogs at Health Care BS (which is devoted to “cleaning the Augean stables of the health care debate”). Mr. Catron may know much more about health care finance than I do, but he is confused about the federal tax Anti-Injunction Act (“AIA”) and why one might be willing to conclude that it blocks pre-enforcement challenges to the individual mandate.

Let’s begin with the paragraph that drew my attention:

Some left-leaning legal scholars see a ray of hope in the Liberty v. Geithner ruling because Judge Diana Motz, the Clinton appointee who resurrected the tax issue, invoked the Anti-Injunction Act (AIA). AIA forbids legal challenges to taxes before they go into effect and the IRS has tried to collect them. Because the mandate doesn’t take effect until 2014, experts sympathetic to “reform” hope this new perspective will cause the Supreme Court to put off its encounter with ObamaCare. According to Kevin C. Walsh, who teaches law at the University of Richmond, “[T]he Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate.” And, considering the denunciations to which the Court was subjected pursuant to Bush v. Gore, the justices may indeed be reluctant to join the judicial fray in 2012.

It’s peculiar that I am the only “legal scholar” mentioned in this paragraph about “left-leaning legal scholars” who are “sympathetic to ‘reform'” and hope that the AIA “will cause the Supreme Court to put off its encounter with ObamaCare.” I will leave to others to judge whether I am “a left-leaning legal scholar.” I think it’s safe to say, however, that Mr. Catron’s sole reason for tagging me as such is because I think the Fourth Circuit got the AIA question right in Liberty University v. Geithner. For better or worse, Mr. Catron can infer whatever he likes from my view on this jurisdictional question. But he should at least get that view right. The post of mine that he links in his piece advocates congressional action to lift the AIA bar for these challenges. That’s not the kind of move one advocates while simultaneously hoping that the Supreme Court will “put off its encounter with ObamaCare.” As I explained in that same post (which Mr. Catron apparently has not read): “A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.”

Mr. Catron concludes by observing that the Department of Justice ” must make the case that, the President’s prevarications notwithstanding, the mandate is indeed a tax. If they can get over that bar, plus make the sale on Judge Motz’ AIA theory, there is a chance that ObamaCare and its mandate will survive — until November 6, 2012.” This analysis confuses two issues: (1) whether the mandate is a tax under the Constitution; and (2) whether a challenge to the mandate is barred by the federal tax Anti-Injunction Act. It may be counter-intuitive to treat these as two different issues, but sometimes the law is counter-intuitive. And on this point, the law is clear. The AIA can bar a pre-enforcement challenge to the mandate even if the monetary exaction for non-compliance is a “penalty” rather than a “tax” under the Constitution.

Rather than speculating about political or ideological leanings, Mr. Catron may wish to get straight on the law and consider the possibility that some of us who think that the Fourth Circuit was right about the AIA hold that view because a close look at the relevant legal authorities suggests as much. An analysis along those lines wouldn’t make for good copy or allow one to suggest that the President is a liar, but it may actually be true and help people understand the issues.

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As explained in a prior post, the jurisdictional infirmities exposed by the Fourth Circuit’s rulings in Virginia v. Sebelius and Liberty University v. Geithner should bring renewed attention to the alternative state standing theories in Florida v. HHS not yet addressed by any court. There are two such theories.  This post discusses the first, and a later post will examine the second.

The states’ lead theory is one of indirect injury from the incremental Medicaid expenditures each state will have to make when presently uninsured individuals comply with the mandate by enrolling in Medicaid. See States’ 11th Cir. Br. at 67-69.

The federal government has argued that this allegation of indirect injury is insufficient as a matter of law, that the claimed injury rests on speculation, and that any potential injury from individuals’ compliance with the mandate is neither actual nor imminent. Additionally, relying on Pennsylvania v. New Jersey, 426 U.S. 660 (1976), the federal government has argued that “it is difficult to see how a State can claim injury on the ground that its citizens choose to accept benefits the State offers them under State law. Reply to Mot. to Dismiss at 13.

The distinction between direct and indirect injuries in the state standing context is traceable to Florida v. Mellon, in which Florida sought to challenge a federal tax on the ground that it would “have the result of inducing potential taxpayers to withdraw property from the state, thereby diminishing the subjects upon which the state power of taxation may operate.” 273 U.S. 12, 17-18 (1927). The Court held that Florida could not go forward with the suit because the State was not in immediate danger of sustaining “any direct injury as the result of the enforcement of the act in question.” Id. at 18. In short, the Court drew a line between direct and indirect injury, and held that it lacked jurisdiction because the claimed fiscal injury arising by virtue of the actions of private citizens in response to the federal law was indirect.

While the line between indirect and direct may be hard to identify in certain cases, the distinction seems administrable enough to foreclose the claimed injury to states resulting from individuals’ compliance with the individual mandate. Recall, also, that states are not permitted to sue the federal government as parens patriae. Allowing states to rely on indirect fiscal injury could provide for easy circumvention of that limitation.

In attacking the states’ indirect injury argument as speculative, the federal government has argued that (i) the pre-mandate status quo already imposes costs on the states in the form of uncompensated care; and (ii), moving more people into insurance may result in a net reduction of costs borne by the states even though some of that insurance is state-provided insurance through Medicaid. The federal government has also pointed to circuit court cases denying standing to states on the ground that the complained-of fiscal effects were too attenuated. See Pennsylvania v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976); Iowa v. Block, 771 F.2d 347, 352-54 (8th Cir. 1985).

If the Supreme Court were to consider this speculation argument, it is unclear (from the filings I have reviewed, anyway) whether the factual record would be sufficiently developed to ground a prediction about the effects of the mandate on state fiscs (which are likely to vary from state to state). If the record were to be found insufficiently developed, that would cut against the states because it is their burden to establish standing.

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Regardless of what one thinks about the constitutionality of the individual mandate in the Affordable Care Act, there appears to be an emerging bipartisan consensus that (1) its constitutionality should be resolved by the Supreme Court, and (2) the Supreme Court should act sooner rather than later (i.e., by the end of the October 2011 Term rather than in some later term). For example, the news coverage here in Virginia after yesterday’s rulings dismissing Virginia’s challenge and dismissing Liberty University’s challenge included statements urging Supreme Court review by both Republican Governor Bob McDonnell and Democrat Senator Mark Warner (relevant statements quoted below if you don’t want to click through).

In light of yesterday’s rulings, however, there is a real possibility that the Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate. Challenges by the states have been dogged by questions about jurisdiction from the outset. The Fourth Circuit’s answer to some of those questions knocked out Virginia’s case. The 26-state mandate challenge in Florida v. HHS has so far dodged jurisdictional bullets because of the presence in that case of private parties, whose standing to challenge the mandate has generally been accepted by the federal courts. But yesterday’s Fourth Circuit ruling in Liberty University v. Geithner has breathed new life into a private-plaintiff jurisdictional problem that the parties to the mandate challenges had left for dead. Specifically, the Fourth Circuit held that the Tax Anti-Injunction Act prohibited individuals subject to the mandate from bringing a pre-enforcement challenge because such a suit was one to restrain the assessment or collection of a tax.

If there is a jurisdictional problem preventing both the private plaintiffs (who are subject to the individual mandate) and the State plaintiffs (who are not subject to the individual mandate) from having a federal court hear their constitutional challenges, then the Supreme Court cannot get to the merits of the mandate challenges any time soon.

One response may be to hope that the Supreme Court reads the Tax Anti-Injunction Act differently from the Fourth Circuit. That response may rest on wishful thinking. I need to study the relevant precedents more closely than I have previously, but Judge Motz’s opinion strikes me as persuasive. (See also the amicus brief filed by two former Commissioners of the IRS, Mortimer Caplin and Sheldon Cohen.)

In any event, there is no need to take a chance and rest the possibility of a mandate-challenge merits decision on speculation about how the Supreme Court will resolve the legal uncertainty about application of the Tax Anti-Injunction Act. The Act sets forth a statutory limitation that Congress can and should change to allow a pre-enforcement challenge to the individual mandate. Importantly, it appears that Congress can make this change effective immediately and can make clear that the change preserves jurisdiction over private-party challenges to the individual mandate that have already been filed. See Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006) (“We have in the past ‘applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.'”), quoting Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); see also Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994) (“[I]n Andrus v. Charlestone Stone Products Co.436 U.S. 604, 607-608, n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount in controversy requirement for federal question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was ‘now of no moment.'”). (My assessment of the legal soundness of a “retroactive” jurisdictional cure is based on just a little bit of digging around thus far, and I have not yet vetted the assessment with others, but the foregoing authorities appear to support it. Critical commentary is, of course, welcome on this or any other aspect of the post.)

In sum: The constitutional merits of the challenges to the individual mandate have divided largely (though not cleanly) along party lines, but there appears to be bipartisan agreement that the merits should be decided soon. A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.


Statement by Gov. McDonnell (R-VA) on the need for prompt Supreme Court review of the constitutionality of the individual mandate:

“As federal courts across the country continue to come to differing conclusions on the merits of cases arguing the unconstitutionality of the federal health care law, today’s decision further exemplifies why these cases should be expedited to the nation’s highest court.  It is the Supreme Court that will ultimately determine whether the federal mandate on every citizen to purchase health insurance violates the U.S. Constitution.  States and businesses continue to expend time and money and languish in uncertainty as they try to come into compliance with a law that may ultimately be ruled unconstitutional. It is exasperating that the President and the Justice Department oppose a prompt resolution of this case through an expedited appeal.  America needs finality in this case.”

Statement by Sen. Mark Warner (D-VA) on the desirability of prompt Supreme Court review of the constitutionality of the individual mandate:

“This is going to end up getting decided by the Supreme Court and candidly, I hope, the sooner the better. I do believe there are a lot of parts of the health care reform law that make sense. I think there are some parts that need to be corrected.”

[Note: The Warner quotation comes directly from the linked video. The accompanying text misquotes Sen. Warner.]

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Hurricane Irene brought peace (eirene) of a sort to Richmond. Without power, there is only so much that one can do. And many in Richmond have been, and remain, without power.

The Fourth Circuit has not done much this week. Until today, there were no opinions in argued cases. The one opinion issued today breaking this week’s argued-case silence is United States v. Martin.The decision affirms an illegal sentence under plain-error review. One suspects there may be more to the case than revealed in the relatively spare unpublished per curiam opinion released today. The case was argued on December 10, 2010, before a panel consisting of Justice O’Connor, Chief Judge Traxler, and Judge Keenan. It is unusual for an opinion to take this long to be issued.

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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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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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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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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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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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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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The Fourth Circuit today issued a unanimous, unpublished opinion in United States v. Williamson, a case dealing with the admissibility of a recorded statement made to a confidential informant. Most unanimous unpublished opinions raise no noteworthy issue. But Williamson seems unusual because the court injected a Fifth Amendment issue into a case that came on remand from the Supreme Court after a procedural history that focused everyone’s attention on a Sixth Amendment issue. Moreover, the Fourth Circuit’s decision to highlight a potential new issue for review is difficult to understand because it appears to make little practical difference to how the case will ultimately be resolved (at least so far as this non-specialist in criminal procedure can tell).

More after the jump.


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In Charlottesville, Virginia, Thomas Jefferson once sought to re-write the Gospels by stripping out all passages that did not meet his conception of who Jesus was. Contemplating this project, Jefferson wrote to a friend:

I should proceed to a view of the life, character, and doctrines of Jesus, who sensible of the incorrectness of his forbears’ idea of the Deity, and of morality, endeavored to bring them to the principles of a pure deism, and juster notions of God, to reform their moral doctrines to the standard of reason, justice, and philanthropy, and to inculcate the belief of a future state. This view would purposely omit the question of his divinity, and even his inspiration.

Shorn of embarrassing invocations of miracles and other phenomena that mystify an enlightened sensibility, the Jefferson Bible is also a pale shadow of the Gospels.

In Forsyth County, North Carolina, the County Board of Commissioners had a policy of inviting the religious leaders of congregations in the county to deliver a prayer before meetings. The County’s policy promised invited religious leaders that they would be “free to offer the invocation according to the dictates of your own conscience.” The invitation requested “only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker.”

The United States Court of Appeals for the Fourth Circuit has held that this policy, as implemented by the Board, is unconstitutional.


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The Fourth Circuit issued an unpublished order in First American Title Insurance Co. v. Western Surety Co. certifying three questions to the Supreme Court of Virginia. Judge Agee (formerly of the Supreme Court of Virginia) directed entry of the order, with the concurrences of Judge Duncan and Judge Norton (D.S.C., sitting by designation).

The certified questions arise out of “a real estate transaction gone awry.” For more details about the facts, read the order. The certified questions: (1) is there a private cause of action under the Virginia Consumer Real Estate Settlement Protection Act (“CRESPA”) against a surety and surety bond, by a party other than the State Corporation Commission? (2) If not, is there a cause of action to assert a common law claim, such as breach of contract, in lieu of a private cause of action under CRESPA? (3) If either of the causes of action mentioned in the first two questions is available, “does a a title insurance company have standing, either in its own right or as a subrogee of its insured, to maintain a cause of action against a surety and the surety bond . . .?”

See below the jump for some case background and the the text of Supreme Court of Virginia Rule 5:40(a), which sets forth the circumstances under which the Court is empowered to answer certified questions.


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When it comes to interpreting the Constitution on the United States Court of Appeals for the Fourth Circuit, Judge Wilkinson and Judge Niemeyer do not often engage in such sharply divergent analyses as are apparent in today’s opinions in Joyner v. Forsyth County. At issue is the constitutionality under the Establishment Clause of the prayer policy of the Forsyth (NC) County Board of Commissioners, as implemented during 2007 and 2008. In an opinion authored by Judge Wilkinson and joined by Judge Keenan, the Fourth Circuit finds that Forsyth County has violated the Establishment Clause. Judge Niemeyer dissents.

Snippets from the majority opinion after the jump. Portions of the dissent and issue analysis in later posts.


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The Fourth Circuit affirmed the denial of relief to a student alleging that punishment imposed by school officials for her internet speech violated various provisions of the Constitution. Judge Niemeyer wrote the opinion in Kowalski v. Berkeley County Schools, which was joined by Judges Duncan and Agee.

Summary and snippets after the jump.


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