THIS WEEK’S APPELLATE DEVELOPMENTS

With the Supreme Court’s first opinion day of the term looming on Friday, here is a quick look at other developments this week.

Supreme Court of Virginia

The court announced that writs were handed down in five appeals:

Berry v. F&S Financial , testing whether a plaintiff who does not serve defendant with process within one year after filing suit may then nonsuit the case

Taboada v. Daly Seven , apparently involving a criminal assault that occurred at a hotel

Berry v. Trible , a will contest case arising in Fauquier County

PMA Capital Insurance v. US Airways , a very interesting claim by the airline against its insurer, in which the airline sought coverage arising out of the government’s shutdown of air travel after the September 2001 terrorist attacks

Board of Supervisors v. BZA , a land use case involving a finding of a lawful nonconforming use, and implicating the rule of practical construction

Court of Appeals of Virginia

The court announced only one decision this week, ruling in Locklear v. Commonwealththat the trial court properly refused to modify a guilty plea many months after sentencing. The case contains an interesting jurisdictional twist, in which the court finds that one of the appellant’s three claims is, in essence, a civil challenge to subject matter jurisdiction under Rule 1:1. Since the Supreme Court has exclusive appellate jurisdiction over such claims, the court transfers this last argument to the Supreme Court for adjudication.

Fourth Circuit

On Monday, the Fourth decided ACLU v. Mote, a First Amendment challenge to certain restrictions on speech on the campus of the University of Maryland. In affirming the district court, the court of appeals finds that the campus is a limited public forum; that the limitations are viewpoint-neutral; and that the limitations are reasonable in light of the purpose served by the forum. Accordingly, the University is within its rights to restrict outsiders from exercising free speech rights on the campus.

Yesterday, the court reversed a grant of summary judgment in EEOC v. Navy Fed’l Credit Union, involving a claim of retaliation discrimination. This opinion constitutes the court’s latest pronouncement on the McDonnell Douglas burden-shifting analysis. The court also reverses a finding that the EEOC’s claim is barred by laches, when it attributes most of the delay in filing suit to a separate entity, the Fairfax County Human Rights Commission. Laches, it finds, only applies to delays occasioned by the party sought to be charged thereby.

Also yesterday, the court issued a formal opinion in the enemy combatant case, Padilla v. Hanft, which had been handed down in memorandum format last week. In this case, the court, tracking carefully the language in the Supreme Court’s recent decision in the Hamdi case, holds that the government may hold an enemy combatant, albeit one who is an American citizen, in custody for a military tribunal, without bringing charges for adjudication in a civilian court. The ruling has been widely reported as a victory for the Bush Administration in its efforts to exert more control over those persons captured in the process of planning or carrying out attacks on the nation. The court sees no basis for distinguishing between those persons who are captured on foreign soil and those captured here in the United States.

Today, the court hands down an opinion interpreting Maryland’s Wage Payment and Collection Law, determining that under that statute, stock options are not wages, and hence are not subject to an enhancement under the statute. The court also determines that an ERISA preemption claim was not properly preserved for appeal. In Varghese v. Honeywell Int’l, the court notes that Honeywell made certain arguments in its motion for summary judgment on the ERISA preemption issue, but did not renew those arguments when it moved for judgment as a matter of law at trial. In keeping with prior decisions from this and other circuits, the court holds that it will not review the denial of a motion for summary judgment after a trial on the merits. Judge Gregory writes the majority opinion; Judge Motz dissents from the ERISA ruling; and Senior Judge Hamilton dissents from the options-as-wages ruling.