Archive | September 2013

Fourth Circuit Judge Andre Davis to Take Senior Status

By Steve Klepper (Twitter: @MDAppeal)

As of this morning, the United States Courts’ website indicates that Judge Andre M. Davis, of the United States Court of Appeals for the Fourth Circuit, will be taking senior status effective February 28, 2014. Although Judge Davis has been sitting on the Fourth Circuit for less than five years, he is eligible for senior status upon turning 65 because he has been an Article III judge since becoming a U.S. District Judge on August 14, 1995. Judges are eligible to assume semi-retired senior status when they turn 65 if they have served 15 years or more as Article III judges.

In the Fourth Circuit’s 2011 Affordable Care Act decision in Liberty University v. Geithner, Judge Davis dissented from the court’s ruling that the Anti-Injunction Act stripped the federal courts of jurisdiction to adjudicate the act’s constitutionality before it goes into effect in 2014.

Judge Davis is the first of President Obama’s Article III nominees to take senior status. Moreover, although Judge Davis is the youngest of the Fourth Circuit’s three Maryland-based judges, he is the first to announce he will take senior status.

While I wish that Judge Davis could have been in active service longer – he was first nominated to the Fourth Circuit in 2000 but was not then confirmed – his selfless decision to assume senior status should be a boon to the Fourth Circuit. For U.S. District Judges, assuming senior status is a much easier decision. A senior district judge has more control over his or her docket while still being the one-and-only judge in his or her courtroom. But a senior circuit judge loses all seniority on three-judge panels and is unable to participate in en banc proceedings unless he or she sat on the original three-judge panel.

The Fourth Circuit could use more senior judges. Unlike other U.S. Courts of Appeals, like the Second Circuit and D.C. Circuit, where numerous senior circuit judges continue to hear cases, the Fourth Circuit for years has had only one of its senior judges (Judge Clyde Hamilton of South Carolina) at its service. Judge William Wilkins served only briefly as a senior judge before leaving for private practice in South Carolina. Judge J. Michael Luttig left to become general counsel for Boeing before even becoming eligible for senior status. And tragedy has struck the Fourth Circuit in recent years, with the untimely death of Judge M. Blane Michael in 2011, and Judge Karen Williams’ 2009 retirement because of early-onset Alzehimer’s Disease. The Fourth Circuit has relied heavily on outside senior judges, including Judge C. Arlen Beam of the Eighth Circuit and Judge Arthur Alarcon of the Ninth Circuit, to complete three-judge panels.

Not to Worry: A Comment on Today’s Dissent in Ray v. State

By Steve Klepper (Twitter: @MDAppeal)

(This post has been updated to address some points I overlooked in my original post. The irony.)

Today the Court of Appeals, in Ray v. State, issued useful guidance on the limits on an appellate court’s discretion under Md. Rule 8-131(a) to consider the merits of a waived claim. The five-judge majority, in an opinion by new Chief Judge Barbera, held that the Court of Special Appeals, in an opinion by new Court of Appeals Judge Watts, erroneously reached the merits of the defendant’s claim in Ray v. State, 206 Md. App. 309 (2012).

Two judges dissented.  The dissent “agree[d] that the Court of Special Appeals erred in concluding that the matter was a proper subject of appellate review.”  Nevertheless, the dissent “disagree[d] with the Majority’s failure to vacate the Court of Special Appeals’ holding about the merits of Ray’s Fourth Amendment claim—a decision that rests on an expanded and worrisome interpretation of Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795 (2003) …. This means that the Court of Special Appeals’ holding will be applied by trial courts until the next time this Court decides a case applying Pringle in a similar context.”

Not to worry. The decision of the Court of Special Appeals on the merits of the question is now only dicta:

A Court of Special Appeals’ opinion underlying a judgment, which is reversed or vacated in its entirety by this Court on another ground, may, depending upon the strength of its reasoning, constitute some persuasive authority in the same sense as other dicta may constitute persuasive authority. Nonetheless, analytically the intermediate appellate court’s opinion is only dicta because it no longer supports or reflects a viable appellate judgment.  Accordingly, such an opinion is not a precedent for purposes of stare decisis.

West v. State, 369 Md. 150, 797 A.2d 1278, 1282 (2002).

The wrinkle in Ray is that the Court of Appeals ultimately affirmed the judgment below, since the Court of Special Appeals had ruled against the defendant on the merits of the question that it should not have reached. But the principle in West still should prevail—since the Court of Special Appeals erred in reaching the question in the first place, its discussion on the merits is dicta.

Nevertheless, there is some potential for confusion, since a not-too-close review of the procedural history of the case would show “affirmed.” I’ve even seen practitioners, and occasionally judges, cite as precedential a case with the signal “reversed on other grounds,” without recognizing that the opinion below was rendered dicta. The lesson, though, is that one should always carefully review the procedural history of the case, rather than just being content that Westlaw or LEXIS shows the decision was affirmed.

But I do believe that that the dissent in Ray v. State is properly labeled a “concurrence,” since the opinion concurs with the disposition of the case by the Court of Appeals.

Certiorari Grants, September 20, 2013

From the Court of Appeals website:

Granted September 20, 2013

Sonia Carter, et al. v. The Wallace & Gale Asbestos Settlement Trust – Case No. 84, September Term, 2013

Issues – Torts – 1) Did CSA err in its decisions that the trial court should have admitted the testimony and opinion of Respondent’s expert and should have instructed the jury on apportionment of damages? 2) Did CSA err in its conclusion that the use plaintiffs were required to join the action with a formal pleading and are now barred by the statute of limitations? Read More…

A Proposal to Cut Costs in CJA Appeals

By Steve Klepper (@MDAppeal)

Inspired by Michelle Olsen’s May 2013 post reprinting her letter to D.C. Circuit Chief Judge Merrick Garland regarding the Court’s oral argument policy, I today sent a letter to Chief Judge Garland proposing how to reduce printing costs for court-appointed counsel.   Read More…

Reflecting on Secrecy in 4th Circuit Panel Composition

By Steve Klepper

I am currently en route to Richmond for an argument before the Fourth Circuit. (Don’t worry, I’m on a train, not driving while  blogging.)  I know my record.  I know my cases. I know my argument. But I don’t know which three judges will be hearing argument tomorrow. The Fourth Circuit jealously guards the identity of a panel until 8:30 on the morning of argument.  Read More…

Proposed New Maryland Rules for Amicus Briefs

By Michael Wein

Today, the Rule’s Committee meets to discuss and likely adopt various proposed Amendments, some directly impacting Maryland appeals. The link, (particularly pages 14-20), is located at and the Reporters Note summarizing these changes for appeal Briefs is reproduced below. The basic summary is that for the first time, Maryland appears keen to enact a Rule Change to have Amici Curiae (“Friend of the Court” Briefs, usually by interest groups), for the most part, adopt much of the very influential and formal Supreme Court Amici Curiae Practice, with much more specificity on times for filing, and the extent to which there can and should be Amici involvement in existing appeal cases. Read More…

Appellate Reviews: In re The Lone Ranger (2013)

Welcome to Appellate Reviews, where appellate judges experienced in reviewing others’ opinions apply that skill to others’ reviews of popular culture. We’ll begin with our top court’s top movie buff, Judge Harrell. We hope that over time this series will branch out to other judges and other genres.

In re The Lone Ranger (2013), Before The Honorable Glenn T. Harrell, Jr., Judge, Court of Appeals (with Steven M. Klepper, Reporter)

Review Under Review: 1 star (Peter Travers, Rolling Stone)

Representative Quote: “Why is The Lone Ranger such a huge flop at the box-office? … Because the movie sucks, that’s why.”

Ruling on Appeal: Reversed. Read More…

Gauging the Impact of Obama’s Fourth Circuit Appointees

By Jonathan Biran

During President Obama’s first term, the U.S. Senate confirmed six of his nominees to the 15-seat Fourth Circuit. Conventional wisdom among Fourth Circuit practitioners seems to be that the Obama appointees (Judges Davis, Keenan, Wynn, Diaz, Floyd, and Thacker) have changed the Court significantly.  Among other manifestations of this change in composition of the Court, I’ve heard some say that the Court appears to be more fractious now than in the past.  I wanted to see if there is any data to back up that perception, so I looked at the Court’s published opinions from 2008 through the first six months of 2013 to compare the percentage of unanimous opinions versus those with concurring and dissenting opinions.  Read More…

Looking for the Next Big Case

By Brad McCullough

During its past two terms, the Court of Appeals issued several decisions that attracted a lot of attention. It’s hard to know whether any decision this year will draw the same level of interest, but a quick review of the cases to be argued during September and October revealed at least two cases that should prove interesting. Read More…