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

December 2017 Archives

Posner Going Back to Court -- as an Advocate

Former Judge Richard Posner may have retired, but he definitely is not going away.

He ruled for almost 37 years at the U.S. Seventh Circuit Court of Appeals, then abruptly turned his attention to reforming the court system by helping pro se litigants. However, the U.S. Fourth Circuit said his "advisory counsel" services were "not needed."

But not even a federal circuit, where Posner loomed large for decades, can keep him out of the courtroom. He will be appearing in the Fourth Circuit whether the judges like it or not.

The Fourth Circuit Court of Appeals has refused to lift the preliminary injunction blocking President Trump's Executive Order seeking to prohibit transgender individuals from serving in the military. The Stone v. Trump matter is one of a few cases the administration is fighting out over the hastily demanded ban on transgender individuals in the military.

Back in November, a Maryland federal district court granted challengers of President Trump's anti-Transgender proclamation a preliminary injunction to block the executive order from going into effect until the litigation concluded. Similarly to the anti-Muslim travel bans that President Trump struggled with, every court to touch the transgender military ban has blocked it.

In the case of Sims v. Labowitz, the Federal Court of Appeals for the Fourth Circuit recently overturned the lower court's dismissal of the Fourth Amendment 42 USC 1983 claim against the now deceased officer, David Abbott. However, several other claims that were also dismissed, including one against the prosecutor, were left undisturbed or unchallenged.

Qualified immunity is one of the strongest protections police officers have to defend themselves from alleged constitutional violations they commit. But when obvious lines are crossed, even the dead can be made to stand trial. The facts of this case are rather disturbing, but do provide a clear example of when an officer should absolutely know what an obvious constitutional violation looks like.

The case of Stanley Penley v. McDowell County Board of Education may not be that remarkable when it comes to fact patterns. A teacher made an insensitive comment in one of his classes directed at a student. The student's parent complained. The teacher was investigated. The investigation resulted in the teacher's termination. The teacher lost on summary judgment, and now he lost his appeal.

And, sadly for that teacher, the appellate decision isn't even remarkable for the legal principles one could learn from it. Rather, the concurrence is worthy of mention. After getting beaten to the ground on every single appellate claim, which came after getting beaten to the ground on every claim at the district court, after a long and hard fought litigation, a concurrence all but calls this action frivolous.

The Fourth Circuit Court of Appeals issued a rather noteworthy decision for coal miners, operators, and the attorneys that represent them. The case involved the retroactive reach of the Black Lung Benefits Act's revised definition of a mine operator.

Interestingly, due to the framework of the BLBA, the mining company bringing the appeal only sought to challenge their liability, rather than the damages award. Notably, under the BLBA, the injured worker would still be able to receive the awarded damages, even without a finding of liability against the specific company. BLBA is a form of federal worker's compensation for mine workers, so the award comes from a common fund rather than the company.