Appellate arguments that are not waived by the appeal waiver in a plea agreement

In U.S. v. Romero, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Agee, and Diaz ruled that the appellant's three arguments raised on appeal were each of them within exceptions to the general rule that appeal waivers are enforceable, but the arguments were not established by the record or premature.

On being the test cow as a district court judge

In U.S. v. Perry, the Fourth Circuit in an opinion by Judge Diaz for a panel including Judge Richardson and District Judge Johnston from West Virginia affirmed the sentence imposed by the district court, where the district court judge described himself as the "test cow" on the issue of whether a certain offense under North Carolina state law was a crime of violence.

When Judge Wilkinson argues for reversal by the Supreme Court

In U.S. v. Gary, Judge Wilkinson joined by Judges Niemeyer, Agee, Quattlebaum, and Rushing, wrote at considerable length explaining why the United States Supreme Court should reject the analysis of the panel decision in the case.

The decision for the panel was written by Judge Gregory, joined by Judges Thacker and Floyd, about the holding of the Supreme Court in Rehaif v. U.S.

The issue is the characterization of the error as "structural" such that it subjects prior convictions to collateral attack, which Judge Wilkinson described as a tremendous cost to the government.

On tortious interference with parental rights in the context of custody litigation

With interest I listened to the arguments and read the opinion in Padula-Wilson v. Landry. In an opinion by Justice McCullough, the Court affirmed the dismissal of Ms. Wilson's claims of tortious interference with parental rights against the various professionals who got sucked into her custody litigation. She sued her children's guardian ad litem and the various therapists and counselors who gave opinions about her and her children for $16 million on various theories, but only the tortious interference claim and one of the defamation claims went to the Supreme Court.

In the Circuit Court, the judge sustained the Defendants' demurrers to the tortious interference claim, concluding that "extending the tort to cases like this one would open the door to every parent on the losing side of a custody or visitation case to sue the prevailing parent's witnesses, alleging that their testimony was false."

The Supreme Court affirmed, distinguishing its prior decision in Wyatt v. McDermott, which was a 4-3 decision, dealing with an adoption obtained through fraud. In Wyatt, the majority opinion concluded that "rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the parent-child relationship."  The dissenting opinion by Justice McClanahan in Wyatt pointed out that there was rather a great deal of substantive and procedural protection afforded by Virginia law in the context of adoption cases.

In Padula-Wilson, Justice McCullough cited many of those same statutes in concluding that the universe of legal protections related to custody litigation precluded the application of the tortious interference cause of action in the context of custody and visitation determinations, in which as with adoptions the injuries are based on the effects of court orders.

The Supreme Court did not say so, but it seems to me that the Circuit Court was correct, as a matter of economics and risk management professionals like the Defendants in this case would be deterred from providing services in connection with high-conflict litigation if their participation was likely to result in multi-million dollar liability claims against them brought by the losing side.

On being "made"

I listened with interest to the arguments in Vest v. Mountain Valley Pipeline.

The statute at issue is a mess: "C. Notice of intent to enter shall (i) be sent to the owner by certified mail, (ii) set forth the date of the intended entry, and (iii) be made not less than 15 days prior to the date of mailing of the notice of intent to enter."

Presumably, what was intended was a parallel to this: "B. A request for permission to inspect shall (i) be sent to the owner by certified mail, (ii) set forth the date such inspection is proposed to be made, and (iii) be made not less than 15 days prior to the date of the proposed inspection."

So, in C., the legislature wrote "mailing of the notice of intent to enter" when they almost certainly intended "date of the intended entry," just as they intended "date of the proposed inspection" in the preceding paragraph. 
 
But, why would "made" mean the same thing as "sent" in a sentence where both are used? 

Randomly, the Supreme Court of the United States has taken up the meaning of "shall be made," in a recent decision:

What remains is the phrase “shall be made.” “[S]hall be made” is a form of the verb “to make,” which means “to bring into existence,” “to produce,” “to render,” and “to cause to be or become.” Random House Dictionary of the English Language, at 866. Thus, “shall be made ” means “shall be produced,” etc.

Babb v. Wilkie, No. 18-882, 2020 WL 1668281, at *5 (U.S. Apr. 6, 2020).

Perhaps in this sense a written notice could be "made" by having been "brought into existence" or "produced" not less than 15 days before mailing, but that would be silly. In my experience that only happens when I put the mail in my car and forget that it is there and drive around with it for a while.

Today's administrative law case

I was listening today to the arguments before the Supreme Court of Virginia by way of the live stream.

One of the cases is about whether there is an implied cause of action to enforce a statute against a state agency that has refused to make a final decision, claiming lack of sufficient information from the aggrieved party.

I observe this statute in the Administrative Process Act:

§ 2.2-4029. Court judgments. Unless an error of law as defined in 2.2-4027 appears, the court shall dismiss the review action or affirm the agency regulation or decision. Otherwise, it may compel agency action unlawfully and arbitrarily withheld or unreasonably delayed except that the court shall not itself undertake to supply agency action committed by the basic law to the agency. Where a regulation or case decision is found by the court not to be in accordance with law under 2.2-4027, the court shall suspend or set it aside and remand the matter to the agency for further proceedings, if any, as the court may permit or direct in accordance with law.

The same language appears in the federal act, 5 U.S. Code § 706(1).

I don't know whether this language affects the issues in the case on appeal, but I know that the one time I brought such a claim under federal law, the agency mooted the case by making a prompt decision. 

Life during wartime

As I posted on Facebook, my first experience with the courts acting under the initial version of the Supreme Court's emergency order, that has since been renewed, was somewhat confusing. One judge took the position that he lacks "jurisdiction" to have any hearings by telephone or make any rulings except in the enumerated categories of essential cases. Another judge had a telephone conference and made a bunch of rulings and entered a new final order in a different case. Both views on the power of the circuit courts cannot be right. If the second view is wrong, then I suspect that we will spend some years to come relitigating the consequences.

When is other state law relevant

I was listening to the argument before the Supreme Court of Virginia in Everett v. Tawes, which seemed pretty high-powered to me, and part of the discussion was about the language in the Virginia Code that makes each installment of child support a judgment by operation of law, and part of the discussion was about the relevance of the law of other states on retroactive modification of support. Congress has required the states to make their child support laws include certain provisions as a condition of their participation in the federal welfare program. And so, the child support laws of the 50 states are quite similar with respect to those certain provisions, and the law of spousal support incorporates the same provisions, sometimes in some places. So, it might be that the law of many states includes a provision that each installment of support becomes a "judgment by operation of law, with the full force, effect, and attributes of a judgment ... including the ability to be enforced," to comply with 42 U.S.C. 666(a)(9). The state laws might be similar enough to provide some useful precedents, like the decisions involving the application of Uniform Laws in other states.