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Week 28 (2020)

Week of July 6, 2020 through July 10, 2020

Buscemi v. Bell (Keenan 7/6/2020): The Fourth Circuit held that two candidates unaffiliated with a political party and one voter seeking to cast votes for write-in candidates lacked standing to challenge North Carolina’s requirements that an unaffiliated candidate be a “qualified voter” and that a write-in candidate submit a certain number of signatures before votes cast for that write-in candidate will be counted. The court also held that, although two plaintiffs had standing to challenge the signature requirements and filing deadline for unaffiliated candidates, these election laws impose only a modest burden that is justified by the state’s interest in regulating elections. Therefore, the court affirmed the district court’s judgment dismissing the plaintiff’s claims, relying in part on different reasons than those expressed by the district court. Full Opinion

Harwood v. American Airlines, Inc. (Niemeyer 7/6/2020): The Fourth Circuit held that a member of the uniformed services did not state a claim of discrimination under 38 U.S.C. § 4311 against his civilian employer because the complaint’s factual allegations of discriminatory intent were too attenuated to make them relevant; however, the court held that the airline employer failed to rehire him promptly after he completed a tour of duty, as required by the Uniformed Services Employment and Reemployment Rights Act. The court thus affirmed the district court’s order on all issues of liability but vacated the damage award and remanded for a recalculation of damages. Full Opinion

United States v. Gary (Gregory 7/7/2020): The Fourth Circuit denied the appellant’s petition for rehearing en banc of its previously decided majority opinion in United States v. Gary, 954 F.3d 194 (4th Cir. 2020). In Gary, the three-judge panel held that a Rehaif error is a structural error that is not amenable to harmless or to plain-error review. Judge Wilkinson, joined by four other judges (Niemeyer, Agee, Quattlebaum, Rushing), concurred for the sole reason that the panel’s holding, in Gary, was so incorrect and on an issue of such importance that the Supreme Court should consider it. Therefore, the court denied the appellee’s petition for rehearing en banc. Full Opinion

This court’s decision is far-reaching in its implications. It not only creates a circuit split of yawning proportions, but also an equally profound schism with the Supreme Court’s whole approach to error review and remediation. Is it eight—or nine—circuits that disagree with us? I have lost count, but the ranks are growing.

United States v. Gary, No. 18-4578, 2020 WL 3767152, at *1 (4th Cir. July 7, 2020) (Wilkinson, J., concurring).

Gordon v. Barr (Keenan 7/8/2020): The Fourth Circuit held that a prior misdemeanor conviction, under Virginia Code § 18.2-280(A), for willful discharge of “any firearm” in a public place without resulting bodily injury does not qualify as a federal “firearm offense” for purposes of removal under the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(C). The court reasoned that because the plain language of the statute, which includes “antique firearms,” encompasses a broader range of conduct than that covered by the INA removal statute, which excludes “antique firearms,” the Virginia offense does not qualify as a removable offense under the INA removal statute. Therefore, the court held that the Board of Immigration Appeals erred as a matter of law, granted the plaintiff’s petition for review, vacated the order of removal, and remanded with directions. Full Opinion

Smith v. Collins (Floyd 7/10/2020): The Fourth Circuit held that there was a genuine dispute of material fact as to whether a prisoner’s conditions of confinement imposed a significant and atypical hardship, so as to violate the prisoner’s procedural due process rights protected by the Fourteenth Amendment. The court found that the evidence showed that the prisoner’s confinement conditions were severe in comparison to those that existed in general population, the prisoner’s segregation status may have had consequences relating to the length of his sentence, and the four-plus years the prisoner spent in administrative segregation were significant enough to tip the scales in the prisoner’s favor, under the Supreme Court’s three-factor atypical-and-significant analysis established in Wilkinson v. Austin, 545 U.S. 209 (2005). The court thus vacated the district court’s summary judgment order and remanded the case for further proceedings. Full Opinion

John Bozeman