Fourth Circuit: NC town can’t deny forum for takings claim

In an opinion published last week by the U.S. Court of Appeals for the Fourth Circuit, Judge Shedd writes that a town being sued for a Fifth Amendment taking can’t avoid the suit by playing jurisdictional games.

In this case, homeowners were suing their town over various regulations and actions dealing with beach erosion; one of their claims was that the town was depriving them of the value of their land without just compensation, a “taking” under the Fifth Amendment. (The town is Nags Head, on the NC outer banks, nestled between the sites of the first heavier-than-air flight and the Lost Colony.)

The homeowners initially sued in state court. The town removed the case to federal court, and then asked to have the takings claim dismissed because it was unripe. Under existing Supreme Court precedent, takings claims must first be raised under state procedures for dealing with those claims before a federal court will deem those claims “ripe” for federal litigation. The federal district court dismissed the claims under this “state-litigation” requirement.

The appeals court, however, saw mischief here. The town itself took the case out of state court and into federal court, only to ask to have it dismissed because it should be in state court instead of federal court. The Supreme Court has ruled that similar manipulative litigation is not allowed when a state invokes Eleventh Amendment immunity. The situation here is analogous, the Fourth Circuit wrote. The town waived its opportunity to have a state forum when it removed the case from that forum.

The Fourth Circuit sends the case back to the district court to deal with the landowners’ Fifth Amendment takings claims.

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Posted in Fourth Circuit, North Carolina

Fourth Circuit weighs in on circuit split; harmless error review in collateral challenge to conviction

In an opinion published today, the U.S. Court of Appeals for the Fourth Circuit announced that, in collateral challenges to federal criminal convictions under § 2255, it would follow the harmless error standard used by most of the other circuit courts of appeal.

The defendant in this case was sentenced to 80 years for federal witness tampering (it involved firebombing). He hoped to cut this down because the U.S. Supreme Court recently narrowed the scope of what may be considered witness tampering under federal law; at trial, the jury was instructed under the old standard. So he filed a collateral challenge to his conviction, citing the Supreme Court’s decision and the incorrect jury instruction.

Finding that the jury instruction was indeed incorrect, the court had to evaluate whether the difference in the instruction was harmless. Here, the court had to decide for the first time what standard to apply in § 2255 cases: the Chapman standard of “harmless beyond a reasonable doubt,” or the Brecht standard of “substantial and injurious effect.” The former is traditionally applied on direct appeals, the latter in habeas proceedings under § 2254. The latter is also harder for a defendant to show.

The court noted that four sister circuits had gone with the Brecht standard (the Sixth, Ninth, Tenth, and Eleventh Circuits, for those keeping score at home; click for opinions). One sister circuit has used the Chapman standard in this context (the Seventh).

The court ultimately joined the majority in applying the Brecht standard. In the Fourth Circuit, harmless error review in § 2255 litigation is now governed by the “substantial and injurious effect” standard. The court wrote that the defendant was unable to satisfy this burden, and affirmed the judgment below which denied his challenge.

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Posted in Fourth Circuit

DC Circuit: To measure a crime’s “seriousness,” use Sentencing Guidelines

An opinion issued today by the U.S. Court of Appeals for the D.C. Circuit begins by saying that the defendant “is innocent of the crime for which he was charged and convicted. The government does not dispute that point.” But the government still insisted that the conviction should stand, because they argued that the defendant could have instead been convicted of a different, equally serious crime. Judge Garland, writing for the court, held that this was not so.

The defendant’s actual innocence claim arose out of a recent Supreme Court decision which narrowed the scope of “honest services fraud” to cases of bribes and kickbacks — which is most definitely not what happened in the defendant’s case. The government did not dispute his claim of innocence under this new understanding of the law, but instead argued that the evidence showed that he made a false statement. According to the government, this crime is equally serious.

This matters because, in order to win an innocence claim after you’ve been convicted, you must show that you are also innocent of more serious charges that the government could have pursued. (Some courts have interpreted this to include equally serious charges also.) So the question in this case became, is making a false statement just as serious as honest services fraud?

The government argued yes, because the maximum sentences of these crimes are the same. But the defendant pointed out that the U.S. Sentencing Guidelines indicate that honest services fraud is the more serious crime: it has a guideline base offense level of 14, compared to the false statement’s base level of 6. (For someone with no criminal history, this makes a difference of about 15 months in prison.)

The court agreed with the defendant, ruling that the Sentencing Guidelines are a better indicator of the seriousness of a crime than the statutory maximum sentence. As a result, the defendant’s conviction should be thrown out.

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Posted in DC Circuit

Fed. Circuit: Necessity of burning forest can be challenged

In an opinion today for the U.S. Court of Appeals for the Federal Circuit, the court deals with a situation in which the U.S. Forest Service set fire to a landowner’s property in order to help prevent a forest fire from spreading. The landowner claimed that burning this particular land was not actually necessary to prevent the spread of the fire, and wants to be compensated for the burnt timber. The court decided that the lawsuit against the government could go forward, despite the government’s claim of necessity.

"Firewise_Black_Forest_Fire" by flickr user USDAgov

Sometimes the needs of the many outweigh the needs of the few… or the one.

It has long been established under the law that the government can, for example, destroy your home, if doing so will prevent your entire neighborhood from burning down. And they don’t even have to compensate you for it: they did it out of necessity, because it would have been far worse to let all the homes be destroyed. So when the landowner sued in this case, the Court of Federal Claims held that this doctrine of necessity applied, and dismissed the case outright.

Not so fast, the Federal Circuit ruled on appeal. The property owner in this case alleges that setting fire to this piece of land wasn’t actually necessary — in other words, the fire would not have reached the land or spread beyond it. Also, it is alleged that the government could have burned more of its own land instead and had the same preventative effect. The Federal Circuit ruled that there should be some inquiry and discovery into whether these allegations are true, before simply dismissing the case. If necessity does not apply, this could be a taking of private property, which under the Fifth Amendment, requires compensation. The Federal Circuit sends the case back to the lower court so that the discovery process can go forward.

This ruling has important implications for the future. The Forest Service, going forward, will need to be prepared to justify its decisions to burn private land when controlling wildfires. With wildfires seeming to grow more frequent and more intense every year, this is no small issue. While this ruling threatens the government with litigation over difficult, literally heat-of-the-moment decisions with great consequences (potentially, human lives), it also protects landowners from potentially arbitrary and unjustified government action.

It will now be up to the lower court to balance these interests and determine whether the burning was actually justified by necessity.

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Posted in Federal Circuit

Fed. Circuit: To prove marriage, use state law

In a recent opinion for the U.S. Court of Appeals for the Federal Circuit, Judge Mayer writes that state evidence law should be used to prove a couple was married for the purposes of awarding veterans’ survivor benefits. Alabama state law requires “clear and convincing” proof to establish a common law marriage. The court held that this standard of proof must be used for purported Alabama common law marriages, rather than the more lenient “preponderance of evidence” standard usually applied in evaluating veterans claims.

"The wedding ring" by flickr user leehaywood

Shoulda put a ring on it. (A marriage certificate wouldn’t hurt, either.)

The court, reviewing rulings in two cases from the Court of Appeals for Veterans Claims, interpreted the federal statute defining “marriage” for the purposes of survivor benefits: it says that marriage can be established according to the law of the state where the couple lives. The veterans’ survivors in these cases lived in Alabama, which is one of the jurisdictions that allows for “common law marriage” (D.C. is another). Common law marriage allows couples to prove they are married under certain circumstances without a valid marriage license or certificate.

The Federal Circuit writes that this section of the statute applies not only to what must be proved to establish common law marriage, but also to how much proof is needed. In the case of Alabama, one must prove by “clear and convincing evidence” the factors establishing common law marriage. (Maybe the claimants would have had better luck if they had lived here in D.C., which only requires proof by a preponderance of evidence.)

The lower court had found that the evidence in each case did not meet this heightened state law standard, and the Federal Circuit saw no reason to disturb these rulings.

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Posted in Federal Circuit, Veterans Appeals