The House of Sand and Blog (CA11 and CA4)

First, allow me to introduce myself. I blog under the pseudonym "Milbarge," and my usual base of operations is the blog Begging the Question. I'm a 2002 law school graduate who spent two years working as a staff attorney for one of the federal courts of appeals, and is now clerking in the chambers of a judge on a different court of appeals. I'm excited to be here at AL&P, where the proprietors have asked me to keep an eye on goings-on in the Fourth and Eleventh Circuits. I don't plan on mentioning every decision or tidbit of news, but I hope to hit the highlights. My general philosophy will be to pass along the decisions that seem significant, or are interesting reading, but (unless it's a slow day) probably not things like fact-specific cases that follow clearly established circuit precedent. And I probably won't mention unpublished opinions either. If you think I've missed something, please feel free to mention it in the comments, or email me. Most of my posts won't run this long, but I wanted to cover the whole last week in both circuits.

Now, on to regular business and an explanation of this post's title. In last year's film House of Sand and Fog, Jennifer Connelly plays a woman who, through bureaucratic foul-ups, loses her house in a tax auction to Ben Kingsley. The movie is about the struggle for the house between the two, each believing themselves to be the rightful owner of the property. If the movie had not been adapted from the novel by Andre Dubus III, one might wonder if the real inspiration was the facts of a case decided by the Eleventh Circuit last week, Culliver v. Rockdale County. Linda Culliver didn't pay her taxes, moved away, and changed her name. The county tried to track her down but couldn't find her, and eventually sold her house. Culliver sued everyone involved, arguing primarily that the notice of the impending tax sale from the county did not satisfy due process. The Eleventh Circuit said the notice was good enough, as was the county's efforts to find Culliver, especially given that she moved and changed her name without telling the county. One sidenote: Culliver sued the house's new owner under the equitable theory of "money had and money received," which isn't one you see everyday.

In another one you don't see everyday, the Eleventh Circuit reversed a Rule 29 judgment of acquittal in a bank fraud case, United States v. Williams. In short, the district court erred by not viewing the evidence in the light most favorable to the Government, and not crediting the Government's take on conflicting evidence. Lastly for now, Gilchrist v. State Farm Mutual. There, the district court certified a class of some seventy million car insurance policyholders claiming antitrust violations. On interlocutory appeal of the class certification, the Eleventh Circuit ruled that the McCarran-Ferguson Act bars the plaintiffs' claims because it exempts from the antitrust laws claims concerning the "business of insurance." The bulk of the opinion is an analysis of what "business" and "insurance" mean under the Act, and whether the claim meets the other conditions for antitrust exemption.

Moving to the Fourth Circuit, first Wofford v. Evans. Students at an elementary school told teachers another student had a gun. School officials detained and questioned the suspect for a while without informing the kid's parent(s). The mother sued, claiming the child's Fourth Amendment rights were violated, and also claiming that the school's failure to notify her was a due process violation. The court, in an opinion by Judge Wilkinson, affirmed the district court's Rule 12(b)(6) dismissal of her suit. The money quote:

School officials must have the leeway to maintain order on school premises and secure a safe environment in which learning can flourish. Over-constitutionalizing disciplinary procedures can undermine educators' ability to best attain these goals. Imposing a rigid duty of parental notification or a per se rule against detentions of a specified duration would eviscerate the ability of administrators to meet the remedial exigencies of the moment. The Constitution does not require such a result.

Immediately breaking my just-announced rule against discussing unpublished opinions, I do have to mention Bessinger v. Food Lion, because it involves barbecue. After the South Carolina legislature voted to lower the Confederate battle flag from the state house, Bessinger, owner of a chain of barbecue joints, raised one above his establishment. After the publicity this generated, some stores pulled Bessinger's products from their shelves. He sued, claiming unfair trade practices. In a brief opinion, the Fourth Circuit adopted the district court's rulings that (a) some store managers were fraudulently joined in an attempt to defeat diversity jurisdiction, and (b) the defendants' actions were not "unfair" under the South Carolina Unfair Trade Practices Act.

In James v. Harrison, the court denied habeas relief to a prisoner. While hardly noteworthy, the facts are interesting. Trial counsel for James (two lawyers) did not attend voir dire or jury selection. James was tried with six co-defendants, and apparently their lawyers handled everything. The upshot is that the Fourth Circuit held that the state courts' rejection of this claim was neither contrary to, nor an unreasonable application of, federal law, as required to win habeas relief. A tough call, but it would probably be pretty difficult to establish prejudice here, because it looks like the group of defense counsel had agreed that one would speak for all. Ah, strategy.

In Harless v. CSX Hotels, the court dealt with an issue of pre-emption under the Labor Management Relations Act and whether the case could be remanded to state court after the plaintiff stripped the federal claims from her complaint (it could). I wonder if there was a motion to recuse filed in the matter, because the CSX hotel at issue was The Greenbrier, where the Fourth Circuit Judicial Conference often holds its annual meeting.

In United States v. Turner, the court refused to create a per se rule of juror disqualification for any veniremember who has an account in the bank the defendant is accused of robbing. The court noted that a particular prospective juror might have such a special affinity for the bank that striking is permissible, but it followed three other circuits in rejecting the absolute rule.

Finally, as noted by How Appealing, the Richmond paper had profiles of two Fourth Circuit judges commonly mentioned as short-listers for a Supreme Court seat: J. Harvie Wilkinson and J. Michael Luttig.