“Liking” a Facebook campaign page “is the Internet equivalent of displaying a political sign in one’s front yard” (4th Cir. 2013)

A split panel of the Fourth Circuit today reinstated the free speech and free association claims of some sheriff’s deputies in Hampton, Virginia who alleged that they had been fired from their jobs for supporting the incumbent sheriff’s political opponent. Among the issues in the case was whether clicking “Like” on the challenger’s campaign page was speech within the protection of the First Amendment. The district court said no: “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” But the Fourth Circuit today disagreed. Here is the relevant portion of the Court’s analysis (discussing the claim of one Carter):

Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for the Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so the Campaign Page’s name and a photo of Adams –which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the  “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones,  706 F.3d 379, 388 n.3 (4th Cir. 2013).

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it  is the Internet equivalent of displaying a political sign in  one’s front yard, which the Supreme Court has held is  substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43,  54-56 (1994). Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s  Campaign Page conveyed that message to those viewing his profile  or the Campaign Page.15 In fact, it is hardly surprising that  the record reflects that this is exactly how Carter’s action was  understood. See J.A. 160 (McCoy’s testimony that in light of  Carter’s liking Adams’s Campaign Page, “everybody was saying  that . . . Carter is out of there because he supported Adams  openly”); see also J.A. 793 (Sheriff’s Office employee stating  that Roberts had said that “certain employees were on the  Facebook page of his opponent, Jim Adams, indicating their support of Adams for Sheriff”).

All of this sounds just right.

Chief Judge Traxler wrote the opinion for the court in Bland v. Roberts, in which Judge Thacker joined.  Judge Hollander (D.Md., sitting by designation) wrote a separate opinion concurring in part and dissenting in part. The judges were not split on the liking-as-speech issue but on the application of qualified immunity, a split largely traceable to different views about the scope of the en banc holding in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc).

Read Full Post »

A Fourth Circuit anti-exhaustion ruling

John Coleman filed a FOIA request seeking some information from the DEA. The DEA eventually denied the request. But it took a really long time to do so. And when the DEA finally responded, they blamed Coleman because he did not prepay a certain fee. When Coleman sued the DEA in federal court to get the information he requested under FOIA, the DEA said he should lose because he had not exhausted his administrative remedies. The district court agreed with the DEA. Today, the Fourth Circuit decided Coleman’s appeal. The first sentence of the second paragraph of Judge Wilkinson’s opinion for the court in Coleman v. DEA states: “Having exhausted the litigant, the DEA proceeded to argue that it was Coleman who had failed to pay its fee request for a preliminary search of the documents and to exhaust his administrative remedies.” Who do you think won the appeal?

Read Full Post »

Fourth Circuit rejects psychic’s free speech and free exercise challenges to Chesterfield County (VA) regulatory scheme

The Fourth Circuit today affirmed the grant of summary judgment to Chesterfield County (VA) on free speech, free exercise, RLUIPA, and equal protection challenges brought by Patricia Moore-King. Ms. Moore-King, who practices spiritual counseling as Psychic Sophie, had challenged various Chesterfield County licensing and zoning restrictions that apply to her because she fits within the County Code’s definition of a “fortune-teller.” (For news coverage of the oral argument, see here.) Judge Duncan wrote the opinion for the court, in which Chief Judge Traxler and Judge Wilkinson joined.

From a doctrinal perspective, two noteworthy aspects of  Moore-King v. County of Chesterfield are its discussion of the professional speech doctrine and its analysis of the difference between “religion” and a “way of life.”

With respect to professional speech, Judge Duncan writes that “the relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providing personalized advice in a private setting to a paying client or instead engages in public discussion and commentary.”

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

Read Full Post »

Fourth Circuit Upholds Ban on Corporate Contributions

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

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

Read Full Post »

CA4 vacates and remands two from EDVA today: one on FCA and one on NEPA

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

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

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

Read Full Post »

Fourth Circuit allows Muslim prisoner’s RLUIPA claim against Virginia correctional officials to go forward

The Fourth Circuit today reinstated the claim of a Muslim prisoner incarcerated in Virginia who sued state correctional officials under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) after they refused to permit him to grow a short beard for religious reasons. The decision means that the prisoners claim can go forward, but further proceedings will be needed to determine whether the prisoner actually wins on the merits.

Chief Judge Traxler wrote the opinion for the court in Couch v. Jabe, in which Justice O’Connor and Judge Shedd joined. Here is the opening of the opinion:

William R. Couch, a Sunni Muslim currently incarcerated in a state correctional facility, brought this action alleging that prison officials violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by refusing to permit him to grow a one-eighth-inch beard in compliance with the requirements of his faith. The district court granted summary judgment to the prison officials, and Couch appeals. Because the prison officials did not explain how a one-eighth-inch beard would implicate health or security concerns, they failed
to satisfy their burden under RLUIPA of showing that the general grooming policy that they rely upon is the least restrictive means of furthering a compelling governmental interest. Accordingly, we vacate the grant of summary judgment and remand for further proceedings.

Read Full Post »

Fourth Circuit revives Rosetta Stone trademark claims against Google

The Fourth Circuit today partially reversed a district court decision that had granted broad protection to Google against trademark infringement claims arising out of its use of trademarked terms in keywords and advertisement text. Chief Judge Traxler wrote the opinion for the court in Rosetta Stone v. Google, in which Judge Keenan and Senior Judge Hamilton joined.

The language software company Rosetta Stone sued Google in 2009 asserting claims of: (1) direct trademark infringement; (2) contributory infringement; (3) vicarious infringement; (4) trademark dilution; and (5) unjust enrichment (under Virginia law). The district court granted summary judgment to Google on all five counts (see here for district court’s trademark claims analysis). Today’s decision affirms the win for Google on vicarious infringement and unjust enrichment, but vacates and remands with respect to direct infringement, contributory infringement, and trademark dilution.

With respect to direct infringement, the appeals court rejected Rosetta Stone’s argument that it is reversible error for a district court to decline to address all factors in the Fourth Circuit’s nine-factor, non-exclusive, totality-of-the-circumstances test for likelihood of confusion. The opinion suggests, however, that “[i]n the future . . . a district court opting not to address a given factor or group of factors should provide at least a brief explanation of its reasons.” The appellate court did, however, fault the district court for applying a too-demanding standard to Rosetta Stone’s evidence of intent to cause confusion, actual confusion, and consumer sophistication. This portion of the opinion contains a discussion of anecdotal and survey evidence, including in-house studies on confusion performed by Google. The Fourth Circuit also criticized the district court’s functionality analysis for focusing on whether Rosetta Stone’s mark made Google’s product more useful, rather than considering whether the mark was functional as Rosetta Stone used it. The appellate disposition of this functionality affirmative defense precludes Google’s further use of it in the litigation, but the remainder of the disposition simply leaves open the path for future litigation over the facts.

On contributory infringement, the Fourth Circuit held that the district court relied too heavily on the Second Circuit’s decision in Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010), which was an appeal from a jury verdict rather than a decision at the summary judgment stage.

Finally (with respect to the claims that the Fourth Circuit vacated), the court held that the district court impermissibly collapsed good faith and nominative fair use into a single question in assessing trademark dilution. The appeals court further held that the district court mistakenly read Louis Vuitton Malletier S.A. v. Haute Diggity Dog, L.L.C., 507 F.3d 252 (4th Cir. 2007) to require proof of actual economic loss or reputational injury, rather than a likelihood of dilution.

Read Full Post »

Split Fourth Circuit panel allows enforcement of slightly overbroad restrictive covenant

A split panel of the Fourth Circuit held today that BP could enforce a restrictive covenant in a deed against a purchaser who sought to use the purchased property for a gas station selling different gas than agreed to in the sale of the property. Chief Judge Traxler wrote the opinion in BP Products, North America, Inc. v. Stanley, which was joined in by Judge Shedd. Judge Floyd authored a dissenting opinion.

From the majority opinion:

The parties agree that under Virginia law, covenants “restricting the free use of land are not favored and must be strictly construed.” Mid-State Equip. Co. v. Bell, 225 S.E.2d 877, 884 (Va. 1976). They disagree, however, regarding the test by which such covenants should be judged. Defendants argue that the restriction should be judged by the standard discussed in Omniplex World Services Corp. v. U.S. Investigations Services, Inc., 618 S.E.2d 340, 342 (Va. 2005), which applies to noncompete covenants in employment contracts. BP contends that restrictive covenants in deeds are judged by a different standard, namely the one discussed in Merriman v. Cover, Drayton & Leonard, 51 S.E. 817, 819 (Va. 1905), and that the Omniplex and Merriman tests are distinct from one another. We agree with BP.

* * *

BP advances multiple arguments challenging the ruling by the district court that the PR was overbroad as a result of its
application to the sale of these enumerated items. BP first argues that, as a petroleum refiner, it has a legitimate business
interest in prohibiting the sale of any products that would dilute the demand for BP’s petroleum. BP also maintains that
the PR should be read to prohibit the sale of kerosene, benzol, or naphtha only to the extent those products are used for the
sale of fuel for internal combustion engines. Finally, BP argues that it is not seeking to prevent the sale of lubricants and that any prohibition of such sales “is academic and represents far too slender a reed on which to invalidate the entire Petroleum Restriction, and thereby allow Stanley to use the Property to sell non-BP fuel, the very use the parties indisputably intended that the Property could not be put.” Appellant’s brief at 48.

From the dissent:

BP contends that we can enforce the PR regardless of any overbreadth simply by excising the offending language. And, since oral argument, BP purportedly has released Stanley from the overbroad portions of the PR. See Ante at 13 n.3. Nevertheless, I cannot conclude that the PR becomes enforceable through alteration by the court or BP. First, Virginia law disfavors judicial reformation of covenants through bluepenciling. See Strategic Enter. Solutions, Inc. v. Ikuma, No. CL 2008-8153, 2008 WL 8201356, at *4 (Va. Cir. Ct. Oct. 7, 2008) (“The Virginia Supreme Court has not directly ruled on ‘blue-penciling’ overly broad clauses in restrictive covenants[;] however it is clear from the restrictive covenant jurisprudence in Virginia that the Court does not entertain the notion that these disfavored restraints on trade should be reformed by the judiciary . . . .”); Daston Corp. v. MiCore Solutions, Inc., No. CL-2010-9318, 2010 WL 7375597, at *5 (Va. Cir. Ct. July 30, 2010); Better Living Components, Inc. v. Coleman, No. CH04-13,307, 2005 WL 771592, at *5 (Va. Cir. Ct. Apr. 6, 2005). More fundamentally, however, Virginia law supports narrowly drawn covenants that are reasonable, and general public policy encourages parties to draft precise language on which all participants to a contract can  rely. Allowing BP, a multinational, sophisticated corporation, to draft blatantly overbroad restrictions and then, when challenged, simply declare that such restrictions are a mistake and meaningless not only is contrary to basic contract principles, but also is detrimental to the public interest. Accordingly, I find that the PR’s overbreadth spoils its enforceability and dissent from the majority’s contrary conclusion.

Read Full Post »

Fourth Circuit on bankruptcy’s Barton doctrine and lying to the government’s Bronston defense

The Fourth Circuit issued two published opinions in argued cases today.

In McDaniel v. Blust, the court affirmed dismissal of several claims that arose out a bankruptcy proceeding. Chief Judge Traxler wrote the opinion for the court, which was joined in by Judge Gregory and Judge Wynn. The opinion addresses the contours of the Barton doctrine, which provides that “before another court may obtain subject-matter jurisdiction over a suit filed against a receiver for acts committed in his official capacity, the plaintiff must obtain leave of the court that appointed the receiver.”

In United States v. Sarwari, the court affirmed the convictions and sentence of a man who submitted passport applications for his stepchildren, describing himself  as their “father” even though he was neither their birth father nor adoptive father. Judge Motz wrote the opinion for the court, which was joined in by Chief Judge Traxler and Judge Keenan. The opinion focuses primarily on the Bronston defense. In Bronston v. United States, 409 U.S. 352 (1973), “the Supreme Court held that an individual cannot be convicted of perjury when the allegedly false statement was ‘literally true but not responsive to the question asked and arguably misleading by negative implication.” In Sarwari, the panel first assumed without deciding that the Bronston defense was available against the particular false statement charges advanced by the government. The panel then proceeded to hold that the facts of the case did not fit within the defense. The panel reasoned that the term “father” is not “fundamentally ambiguous,” and that the evidence was sufficient for the jury to conclude that the defendant understood the term in the same way that it was understood by the government.

Read Full Post »

Fourth Circuit unanimously reverses grant of habeas relief to capital defendant

The Fourth Circuit today unanimously reversed the grant of habeas relief to a North Carolina capital defendant, Timothy Richardson, by Judge Boyle of the Eastern District of North Carolina. Judge Keenan wrote the opinion for the court in Richardson v. Branker, in which Chief Judge Traxler and Judge Motz joined.

The decision, which relies heavily on the Supreme Court’s decision last Term in Harrington v. Richter, ___ U.S. ,___ 131 S. Ct. 770, 786-87 (2011), rests on the appellate court’s determination that the district court did not demonstrate adequate deference to the state court decision at issue. The opinion states that the “required deference to the MAR court’s adjudication of Richardson’s claim of ineffective assistance of appellate counsel was wholly lacking in the district court’s consideration of the habeas petition.”

Along with analysis of North Carolina law governing when it is necessary to submit to the jury the mitigating factor of the defendant’s age–the (f)(7) mitigation factor–the opinion also discusses Brady and Atkins claims.

Read Full Post »

Divided Fourth Circuit panel knocks out “moral turpitude” framework for immigration decisions at Chevron step one

A divided panel of the Fourth Circuit held today in Prudencio v. Holder that the framework used by federal immigration judges to decide whether an individual has previously been convicted of a crime of moral turpitude is unauthorized because in conflict with the relevant provisions of the Immigration and Nationality Act. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd penned a vigorous dissent.

The decision defies easy summary, but the dispute is an important one. Here is how Judge Shedd’s dissent begins:

The categorical approach adopted by the majority is a doctrine created by the judicial branch to address issues of concern to the judicial branch—protection of Sixth Amendment rights and efficient use of judicial resources. Although an agency may choose to adopt some version of this approach, there is no  requirement to expand this difficult, almost unworkable, limiting analysis to an agency, especially in the immigration context, and I would not do so.

Read Full Post »

Photojournalist Isis loses on Privacy Protection Act claim in Fourth Circuit

The Fourth Circuit today unanimously affirmed a grant of summary judgment in favor of the United States on the claim of activist photojournalist Isis for money damages under the Privacy Protection Act. Chief Judge Traxler wrote the published opinion in Sennett v. United States, which was joined in by Judge Motz and Judge Keenan.

The claim arises out of a lawless protest by anti-IMF activists at the Four Seasons hotel in Washington D.C. in 2008. Isis asserts that she went to the hotel around 2:30 a.m. one morning after receiving an anonymous tip about an impending demonstration. She proceeded to video a protest in the hotel lobby that involved firecrackers, smoke-generating pyrotechnic devices, and paint-filled balloons, causing more than $200,000 in property damage. The police tracked her down, searched her residence, and hauled away a lot of her gear. She never was charged with a crime. She sued under the Privacy Protection Act and lost on summary judgment. The Fourth Circuit affirmed. The decision involves an extended analysis of the “suspect exception” in the PPA.

Read Full Post »

Attempt does not require an identified victim

The Fourth Circuit’s unanimous opinion today in United States v. Strieper affirms the imposition of two sentencing enhancements on attempted enticement and child pornography charges. Judge Floyd wrote the opinion, in which Chief Judge Traxler and Judge Shedd joined.

Among the issues discussed is whether one can attempt to entice without having identified a particular minor to entice. The panel believed so:

At oral argument, Strieper also suggested that there must be an identifiable victim to constitute an attempt. This argument did not appear in Strieper’s brief, and as such, it is waived. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). In addition, this position lacks merit, as it is well established that attempt requires only the requisite intent to commit the crime and a substantial step toward its commission. United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). So long as these elements are satisfied, no identified victim is necessary. Indeed, as we noted at oral argument, if two individuals intending to rob a bank start out with all accoutrements necessary for a robbery and agree simply to rob the first bank they happen upon rather than identifying a specific bank ahead of time, we could still conclude that the individuals had attempted to commit robbery.

Read Full Post »

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.”)

Read Full Post »

Commissioner Astrue wins another affirmance in the Fourth Circuit

The Fourth Circuit’s sole published opinion today came in Hancock v. Astrue, in which a panel of the Court of Appeals affirmed the denial of an application for supplemental security income (“SSI”). Chief Judge Traxler wrote the opinion, in which Judge Shedd and Judge Floyd joined (a South Carolina trifecta).

The appeal focused on the applicant’s cognitive functioning. Chief Judge Traxler wrote:

The only issue on appeal is whether the ALJ erred by concluding that Hancock’s level of cognitive functioning did not meet or equal the listed impairment for mental retardation, Listing 12.05. Listing 12.05 requires a showing of “deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22” (“Prong 1”). Listing 12.05 also requires the satisfaction of one of four additional requirements identified as Requirements A-D. At issue in this case was Requirement C, which requires “[a] valid verbal, performance, or full scale IQ of 60 through 70” (“Prong 2”), as well as “a physical or other mental impairment imposing an additional and significant work-related limitation of function” (“Prong 3”).

The ALJ found that Hancock did not establish any of the three prongs of Listing 12.05C. Although Hancock argues that the ALJ erred with regard to his findings as to each of the three prongs, the Commissioner does not contest Hancock’s ability to establish Prong 3. Therefore, we are left to consider whether substantial evidence existed to support the ALJ’s findings with respect to Prongs 1 and 2.

The court affirmed the ALJ’s rejection of an IQ score, based on the ALJ’s assessment of the inconsistency between the findings of the consultative psychologist, Dr. Joseph Appollo, and evidence of the applicant’s actual functioning and notes of treating psychiatrists.

The court also affirmed the ALJ’s conclusion that the applicant had no deficits in adaptive functioning:

In finding no deficits in adaptive functioning generally, the ALJ concluded that “the claimant has worked several jobs and performed a variety of tasks which would be expected to be beyond the capacity of a mentally retarded person.” A.R. 19. With regard to past jobs, the ALJ found that Hancock previously worked as a battery assembler and a drop clipper. [footnote omitted] With regard to tasks, the ALJ noted that Hancock has the ability to shop, pay bills, and make change; that she takes care of three small grandchildren at a level of care that satisfies the Department of Social Services; that she does the majority of her household’s chores, including cooking and baking; that she is attending school to obtain a GED; and that she does puzzles for entertainment. We believe this evidence was sufficient to support the ALJ’s conclusion that Hancock had no deficits in adaptive functioning.

Read Full Post »

Younger is broader in the Fourth Circuit, after today’s unpublished opinion in South Carolina Association of School Administrators v. Disabato

A South Carolina FOIA request by radio personality Rocky Disabato (“Rocky D”) has resulted in a Fourth Circuit ruling that adopts an expansive view of the circumstances in which it is appropriate for the federal courts to abstain under Younger v. Harris. Judge Wynn wrote the unpublished opinion in South Carolina Association of School Administrators v. Disabato, which was joined in by Chief Judge Traxler and Judge Wilkinson. (See here for an article about the parallel state litigation by Schuyler Kropf in The Post and Courier, and here, here, and here, for criticisms of the state trial court decision.)

After the Association brought a successful legal action against then-Governor Mark Sanford to obtain funds for education, Disabato sent the Association a public records request pursuant to the South Carolina Freedom of Information Act (“SC FOIA”). The Association responded that it was not subject to the SC FOIA.

On December 7, 2009 Disabato filed suit in the Charleston County Court of Common Pleas to obtain the records he sought.

On February 2, 2010, the Association brought a federal declaratory judgment action seeking a declaration that the SC FOIA was unconstitutional as applied to it as a purportedly public corporation. The federal DJ complaint alleged that application of the SC FOIA to non-profit corporations engaged in political speech and issue advocacy violates the First Amendment.

Disabato moved the federal court to abstain and dismiss. On April 22, 2010, the district court granted Disabato’s motion and dismissed the case based on Younger abstention. (The district court also ruled that Pullman abstention applied, but that ground would have been insufficient for dismissal, as a federal court that abstains under Pullman should stay rather than dismiss.)

The Fourth Circuit’s decision affirming the district court’s Younger-based dismissal rests on a broad understanding of Younger abstention. As the court notes, Younger abstention has migrated outside the context of pending state criminal proceedings.

In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987), the Supreme Court held Younger abstention to be appropriate in a civil case involving only private parties. After losing a multi-billion dollar case in Texas state court, Texaco brought a federal action in New York seeking to enjoin Pennzoil from enforcing its post-judgment rights to place liens on Texaco’s real property in Texas and to begin levying on Texaco’s Texas assets unless Texaco posted a bond (which Texaco argued it could not afford to post). Although the state was not a party in Pennzoil, the opinion emphasized that the federal proceeding interfered with the state’s interest in enforcing the judgments of its courts. The principal state interest at issue in Disabato, by contrast, appears to be in state courts being able to interpret and apply the SC FOIA in private-party litigation. That interest, standing alone, is insufficient under Pennzoil. Answering a charge of Justice Stevens in dissent, the opinion for the Court stated in a footnote that “the State of Texas has an interest in this proceeding ‘that goes beyond its interest as adjudicator of wholly private disputes.’ Our opinion does not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather, as in Juidice, we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.'” Pennzoil, 481 U.S., at 14 n.12.

Another state interest at issue in Disabato is in the constitutionality of the SC FOIA. But the state would be able to protect that interest in federal court, if need be.

The best explanation for the Fourth Circuit’s decision is a constitutional avoidance rationale, which fits more neatly into Pullman abstention. As the Court noted in Pennzoil, however, “considerations similar to those that mandate Pullman abstention are relevant to a court’s decision whether to abstain under Younger. Cf. Moore v. Sims, 442 U. S. 415, 428 (1979). The various types of abstention are not rigid pigeonholes into which federal courts must try to fit cases. Rather, they reflect a complex of considerations designed to soften the tensions inherent in a system that contemplates parallel judicial processes.” Pennzoil, 481 U.S., at 11 n.9.

While constitutional avoidance is a sensible grounds for abstention, there is a twist in this case in that the federal plaintiff is a “public body” under state law. While not the State itself, the Association is a “public body” subject to the SC FOIA, and the Association wants a federal forum. To the extent that the comity rationale for abstention indicates respect for the forum choices of the state, perhaps the Association’s choice of a federal forum should be given some weight.

In any event, the expansion of Younger seems unnecessary to support the outcome. It might have been more prudent doctrinally if the court had instead affirmed dismissal based on the discretion of federal courts to refuse to entertain declaratory judgment actions. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 286-87 (1995). That would not have required breaking any new legal ground.

Having pursued the analysis this far, I acknowledge in conclusion that this parsing of various grounds for abstention may reflect too much concern with the “rigid pigeonholes” that the Court warned against in Pennzoil.  Because the opinion is unpublished, the new legal ground broken in Disabato does not necessarily mark a permanent change in the landscape of abstention doctrine. It is a fascinating case nonetheless, at least for those of us who find this kind of thing fascinating (and let’s face it, if you’ve read this far, you just might be one of those people).

Read Full Post »

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.

Read Full Post »

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.

Read Full Post »

Fourth Circuit rejects constitutional challenges to ACA provisions . . . regarding black lung benefits

The Fourth Circuit yesterday rejected constitutional and other challenges to various changes made to the Black Lung Benefits Act by the Patient Protection and Affordable Care (“PPACA” or “Affordable Care Act” or “ACA” or “Obamacare” and so on). Judge Wilkinson wrote the opinion in West Virginia CWP Fund v. Stacy, which was joined in by Chief Judge Traxler and Judge Wynn.

The principal constitutional challenges were substantive due process and Takings Clause claims regarding a statutory provision that extended certain benefits to claims that were filed after January 1, 2005 and pending on or after the date of the ACA’s enactment (March 23, 2010). The challengers sought to distinguish Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976), in which the Supreme Court rejected a due process challenge to the Black Lung Benefits Act. The challengers sought to analogize their challenge to Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), in which five Justices voted to hold unconstitutional a certain retroactive imposition of liability in the coal industry. The five Justices in the Eastern Enterprises majority did not agree on a theory of unconstitutionality. Four found a violation of the Takings Clause, while one (Justice Kennedy) found a substantive due process violation. (The remaining four found no constitutional flaw.)

Judge Wilkinson’s opinion applies Usery v. Turner Elkhorn Mining, distinguishes Eastern Enterprises, and in the course of doing so, also reiterates the Fourth Circuit’s view that the rejection of a Takings Clause theory by five Justices–on the ground that a simple obligation to pay does not amount to a taking–“is more authoritative than the plurality’s conclusion” that the imposition of such an obligation could amount to a taking.

The opinion contains two interesting passages regarding the Affordable Care Act more generally. First, Judge Wilkinson concludes in a footnote that the BLBA amendments in the ACA would survive as severable even if the Supreme Court were to hold the individual mandate unconstitutional (as it has been asked to do). Second, Judge Wilkinson resoundingly rejects, because it threatens the separation of powers, the challengers’ argument that the BLBA amendments only passed due to their inclusion in massive and unwieldy ACA:

[P]etitioner’s argument that the BLBA amendments only passed due to their “inclusion . . . in approximately 2,700 pages of healthcare legislation,” Petitioner’s Reply Br. at 27-28, threatens the separation of powers by inviting courts to scrutinize the process by which a coordinate branch of government goes about its business. Likewise, it invites every loser in a legislative fight to contest not only the constitutionality of Congress’s final product, but the way that Congress went about enacting it. Such a plunge into the depths of Capitol Hill should be undertaken—if at all—only in the most extraordinary of circumstances, circumstances that are plainly not presented here. In sum, the difficulties with petitioner’s view are evident and legion.

Read Full Post »

Fourth Circuit affirms conviction and sentence for former SEC lawyer who participated in “pump and dump” scheme

The Fourth Circuit today affirmed the conviction and sentence of a former SEC lawyer who advised and participated in a “pump and dump” securities fraud conspiracy. Judge Niemeyer authored the opinion in United States v. Offill, which was joined in by Judge Wilkinson and Judge Traxler. The opinion contains extensive discussion of the admissibility of expert testimony about complex legal schemes. Here is a taste:

We conclude that the specialized nature of the legal regimes involved in this case and the complex concepts involving securities registration, registration exemptions, and specific regulatory practices make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury. The jury in this case needed to understand not only federal securities registration requirements but also the operation of several obscure Texas Code provisions and their relationship with the federal regime. To be sure, the ultimate responsibility for instructing the jury on the law belonged to the district court, but we cannot conclude that in these circumstances the district court abused its discretion by concluding that the expert testimony presented in this case would assist the jury. Indeed, we find it difficult to imagine how the government could have presented its case against Offill without the assistance of expert testimony to explain the intricate regulatory landscape and how securities practitioners function within it.

Read Full Post »

Fourth Circuit denies 2255 claim premised on government’s use of CBLA evidence

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

Read Full Post »

Catching up with the Fourth Circuit’s five published opinions this past week (and one from the prior week)

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

Read Full Post »

Explicit resolution of implicit intra-circuit split on appealability of pre-trial indictment count dismissals in the Fourth Circuit

A footnote in an opinion issued earlier this week appears to resolve an implicit intra-circuit split over the government’s ability to appeal a pre-trial order dismissing a particular count or counts in an indictment when the dismissal is based on a stipulation that the government will be unable to prove (or will not seek to prove) certain facts.

Read Full Post »

Can the prohibition on possessing firearms while “employed for” a convicted felon apply to cover situations in which the person carrying the firearms is not paid by the felon? The Fourth Circuit says “yes.”

Can the prohibition on possessing firearms while employed by a felon apply to cover situations in which the person carrying the firearms is not paid by the felon? In yesterday’s decision in United States v. Weaver, the Fourth Circuit says “yes.”

The government charged several alleged members of the Pagans Motorcycles Club (“PMC”) with violating 18 U.S.C. § 922(h). That provision prohibits the possession of firearms while “employed for” a convicted felon. The charges were based on orders the defendants allegedly received from PMC national vice president Floyd Moore, a convicted felon prohibited from possessing a firearm. The government conceded, however, that it could not (and would not seek to) prove that Moore paid the defendants. Rather, the government offered to prove that Moore sought to circumvent the prohibition against his possession of firearms by ordering the defendants to carry arms when accompanying him. The government alleged that Moore bragged that he did not need to carry a gun because other PMC members carried guns for him.

On a motion to dismiss the § 922(h) charges, the district court (Judge Johnston, S.D. W. Va.) held that the statute required the government to prove some sort of payment. In light of this holding and the government’s concession that it could not put forward such proof, the district court dismissed the § 922(h) charges.

The government appealed pursuant to 18 U.S.C. § 3731. In a published opinion authored by Judge Wilkinson, which was joined in by Chief Judge Traxler and Judge Niemeyer, the Fourth Circuit reversed.

Judge Wilkinson reasoned that the text of the statute imposes no compensation requirement, and that although “employ” can mean “to provide with a job that pays wages,” the term is not limited to this meaning. “By treating compensation as an essential condition of § 922(h),” Judge Wilkinson wrote,” the district court narrowed the intended scope of the statute, adding an element of proof not present in the plain language.” After some additional textual analysis, the opinion also explains that the district court’s interpretation “overlooks the structure and purpose of the statute,” which is, in part, an anti-circumvention provision that prevents convicted felons who themselves may not possess firearms (under § 922(g)) from employing armed bodyguards. This discussion relies in part on legislative history purporting to show that “Congress explicitly targeted the members of criminal organizations.” Finally, the opinion looks to precedent analyzing employment relationships in different contexts to “reinforce the proposition that law does not treat compensation as the sine qua non of an employer-employee relationship.”

The Fourth Circuit’s unanimous opinion is not quite the last word on the application of § 922(h) to the PMC defendants. That is because the opinion does not adopt “a definitive definition” (and, really, should we care about any other kind?) of the disputed statutory term. The panel leaves that task to the trial court upon remand, observing that “[w]e do not know whether the government can prove that the defendants breached § 922(h).” In the end, the panel’s narrow holding is simply that compensation is not “the sine qua non of the words ’employed for’ in § 922(h).”

The battle now returns to the district court.

Read Full Post »

En banc Fourth Circuit is 10-2 on outcome and 5-4-1-2 in opinions (with the 5-judge, 2-judge, and 1-judge opinions in agreement on a crucial issue for future cases, though perhaps not aggregable to establish that point in this case)

It has taken me some extra time to post about the Fourth Circuit’s en banc decision earlier this week in United States v. Vann because it has taken me a long time to get through the 100 pages of opinions. The issue in the case is whether a certain individual’s three convictions under North Carolina’s indecent liberties statute qualify as convictions for a “violent felony” under 18 U.S.C. § 924(e)(2), thereby triggering a mandatory minimum sentence under the federal Armed Career Criminal Act (“ACCA”). The short answer, for this defendant, is no. But whether any convictions for violating the indecent liberties statute can qualify as a “violent felony” in some other case remains unclear. (The write-ups by Jonathan Byrne at Fourth Circuit Blog and Matt Kaiser at his law firm’s blog provide a helpful overview of the opinions and issues.)

The simplest way of understanding the en banc decision, at one level, is in relation to the vacated panel opinion. Judge Niemeyer authored that split decision, which Judge Shedd joined. Judge King dissented. The panel opinion had affirmed the application of the ACCA 15-year mandatory minimum.

The en banc court consisted of twelve judges: Chief Judge Traxler, and Judges Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Agee, Davis, Keenan, Wynn, and Diaz. (Judge Duncan did not participate and Judge Floyd was not yet on the court.) By a 10-2 vote, the en banc court voted to vacate the sentence. The only two judges supporting the panel opinion are the two judges who joined it initially (Judges Niemeyer and Shedd). But the other 10 judges on the en banc court split 5-4-1 on their reasoning.

Read Full Post »