The Court of Appeals on Tuesday dismissed as moot an appeal by the Mattaponi Indian Tribe when the underlying lawsuit was settled by the City of Newport News and the VMRC. The tribe had sought leave to intervene in an administrative appeal brought by the City in the Newport News Circuit Court. The trial court denied the motion to intervene, and the tribe filed an interlocutory appeal. Last year, the Court of Appeals denied that appeal on jurisdictional grounds.

The City and the VMRC then reached a settlement agreement, and the underlying Circuit Court action was dismissed. The tribe then reinstated its appeal. Tuesday, the Court of Appeals dismissed the tribe’s appeal as moot, since the underlying case had been settled.

The case is noteworthy for the apparent frustration of the tribe — its intervention motion, once denied, essentially became unappealable. The opinion, drafted by Judge Kelsey, also contains pithy (that’s a euphemism) quotes from other cases on the same subject, such as these: “Officious intermeddlers ought not to be allowed to hijack litigation that the real parties in interest can resolve to mutual benefit.” “[A] permissive intervenor may not breathe life into a non-existent lawsuit.” “[A]n intervenor cannot keep a lawsuit alive which the original parties wish to end.”

The opinion preserves to the tribe the right to litigate independently its rights under the Treaty at Middle Plantation, executed in 1677.



Heather Sue Mercer, the woman who won a spot on the Duke University men’s football team in 1994, only to lose it, was awarded some $350,000 in legal fees by a U.S. District Court after a successful Title IX claim against the university. Today the Fourth Circuit affirmed that award in a published opinion.

The principal issue in the appeal was whether a plaintiff who won only nominal damages could recover attorney’s fees under Title IX’s fee-shifting provisions. The court of appeals, noting that Supreme Court precedent generally disfavored awards when the damages awarded are nominal, nevertheless approved the district court’s award, noting the difference between a technical, or de minimis victory, and one that fundamentally alters the relationship between the parties and advances important social interests, such as gender-based discrimination.



Tuesday the US Supreme Court issued an opinion in Roper v. Simmons, ending the practice of imposing the death penalty on defendants who were juveniles at the time of their offenses. Effects of the 5-4 decision will be felt across the several states, including Virginia, that have continued to permit the execution of 16 and 17 year olds since the Supreme Court banned executions for persons under 15 in 1989. Today’s opinion sets the threshold at 18, and means that convicted sniper Lee Boyd Malvo cannot face the death penalty in future prosecutions.



On February 28, the Supreme Court of the United States granted certiorari in a case involving the question of whether a company headquartered elsewhere, but with a Virginia subsidiary office and with substantial business activity here, can be considered a citizen of the Commonwealth for diversity purposes. The Fourth Circuit had ruled in 2004 that the subsidiary was, in fact, a citizen of Virginia.

The case is Lincoln Property Co. v. Roche.