U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

October 2013 Archives

VA's 'Certificate of Need' Law Pretty Much Unconstitutional

Virginia has this pretty onerous rule. If a medical service provider wishes to open a facility in a Virginia market, it has to first obtain a certificate of need. Not only does the certificate cost significant money, but it requires navigating a maze of bureaucratic processes to complete the approximately seven-month process. And if any person (including competing existing businesses) requests an "informal fact-finding" session, the process can take years.

Does it violate the dormant interstate commerce clause? It seems likely that it does -- it places a hefty burden on new operations, one if its purposes is to protect "existing" (by definition, in state) businesses, etc. And while the district court dismissed two plaintiff medical companies' claims, the Fourth Circuit, in an unusually direct reversal, all but killed the law.

Judge's Bad Call on Cross-Exam Gets Defendant New Trial

Cross-examination is fun. You ask a series of rapid-fire questions, ones that you hopefully know the answers to (surprises are rarely a good thing), and attempt to undermine the witness's testimony, either by catching him in an outright lie, or by exposing weaknesses in his story.

Your quest to make the witness look like a jackass in front of the jury is guaranteed by the Confrontation Clause of Sixth Amendment to the U.S. Constitution, incorporated to the states via the Fourteenth Amendment. This is all basic stuff, right? Stuff you'd learn in law school, maybe even during 1L year, right?

Sometimes, it isn't as easy in practice.

Risen Reporter's Shield Case Gets En Banc Denial, With Dissent

After the decision, and the amicus briefs, comes the expected denial. Next stop SCOTUS?

James Risen had a lot of inside information about the CIA, which he revealed in his book State of War. We're all pretty certain that the information came from Jeffrey Sterling, a disgruntled former agent, as he's the common link to a lot of the information about a variety of operations. The government, however, contends that only Risen can provide a direct link to the leaks.

The issue in the case is pretty fundamental: does the Supreme Court's holding in Branzburg v. Hayes really prohibit reporters from invoking the First Amendment to refuse to testify about their sources to a grand jury (and in other legal proceedings)?

Local Judge, Lawyer Implicated in Disability Fraud Scheme

The Eric C. Conn Law Complex is an interesting place. From the photos and videos of the welded-together trailers, to the Lincoln Monument and Statue of Liberty replicas on the lot, the setting is reminiscent of every lawyer stereotype the rest of us laugh about. Uproxx calls him the "Real life Saul Goodman," which isn't too far off, except the whole criminal aspect.

Except, that's exactly what the federal government is calling him.

Earlier this week, a Congressional report implicated Conn and retired Administrative Law Judge David B. Daugherty in a Social Security disability scheme that processed thousands of claims in "assembly-line fashion. The report accuses Conn of using manufactured evidence in claims brought before Judge Daugherty, which were rubber stamped en masse by the now-retired judge, reports The Associated Press.

4th Shut Out of SCOTUS So Far, But Guns and Libertarians Await

This is odd.

Out of all of the thirteen circuits, only one, the Fourth Circuit, has zero cases set for argument before the High Court. As part of our Supreme Court Week here at FindLaw, we're going through the big cases in each circuit that sit before SCOTUS, yet, for the Fourth there are none, nor are there any state cases from Maryland, North Carolina, South Carolina, Virginia, or West Virginia, according to Cert Pool.

None, for now. Though this circuit was shut out of the early grants and arguments, there are currently 126 petitions for certiorari from this circuit, plus a handful from each state, and here are a few that have gathered amici interest.

Judge Andre Davis, Obama Appointee, Will Take Senior Status

It looks like a spot is about to open up on the Fourth Circuit, the first vacancy since Judge Thacker was confirmed for the court's final vacancy last year.

Judge Andre Davis, an appointee of President Obama in 2009, will take senior status in February 2014, reports the Maryland Appellate Blog. He is the youngest of three Maryland-based Fourth Circuit judges, and has only been on the Fourth Circuit Court of Appeals for a few years, but is eligible for senior status at the age of 65, after serving nearly two decades on the federal bench.

Judge Davis has been a federal judge since 1995, when he was appointed to the U.S. District Court by President Clinton. The Maryland Appellate Blog notes that he was first nominated for the Fourth Circuit in 2000, but was not confirmed during his first go-round.

Antique Firearms, Black Powder Ammo in Felon-in-Possession Case

When is a gun not a gun? When it's really, really old, apparently.

Thomas Royal is a felon. Felons can't have guns or ammo, per the Gun Control Act, but that same act creates an interesting loophole: antique arms. Royal, when he was tased by police officers, was packing an antique Iver Johnson break-open revolver, .32 caliber, which was apparently manufactured "in or before 1898." That meant, per the GCA, that he was not violating the law.

Except he also had bullets.