[Posted December 22, 2014] Do you handle federal appeals? If so, I need to take a few minutes of your time to go over three decisions from the past week. Right now would be a good idea, for reasons that will be quite clear to you very soon.
On Wednesday, December 17, a panel of the Fourth Circuit handed down Hudson v. Pittsylvania County, a thou-shalt-read, no-excuses-allowed, published opinion that addresses when a judgment is final and appealable.

On Friday, the same court issued Whiteside v. US, a §2255 proceeding. Friday’s opinion comes after an en banc rehearing, something that’s always important to consider. But the lesson – and I think it’s appropriate to describe it as a painful lesson – should carry over to other appellate proceedings.

Ignore these decisions at the peril of your malpractice carrier.

In addition, today another panel rules that North Carolina’s ultrasound statute violates the First Amendment by compelling speech by abortion providers. The decision is Stuart v. Camnitz. It emphatically is not a slow news week at 1100 East Main.


Hudson is a challenge to Pittsylvania County’s practice of beginning its semi-monthly Board of Supervisors’ meetings with an invocation. As the opinion describes it, “This opening invocation was usually explicitly Christian in nature, and the Board asked the audience to stand for the prayers.” Hudson, who is identified only as “a non-Christian resident ofPittsylvania County who has attended nearly every Board meeting since late 2008,” objected to what she saw as an establishment of religion. She filed a civil-rights action in US District Court.

In March 2013, the district court entered summary judgment in her favor, permanently enjoining the county “from repeatedly opening its meetings with prayers associated with any one religion,” and retained jurisdiction to consider a §1988 fee petition. Five months later, the court awarded $53,000 in fees and costs. The county appealed within 30 days after entry of this order.

Earlier this year, while the appeal was pending, SCOTUS handed downTown of Greece v. Galloway, a sharply divided decision that upheld thatNew York town’s practice of beginning its meetings with prayers. That seemed to portend a reversal here. But wait:

Before turning to the merits, however, we must first address the threshold jurisdictional issue presented by [Hudson’s] motion to dismiss.

What’s this? A dismissal motion? Hudson asked the Fourth not to reach the merits because, she claimed, the notice of appeal had been filed too late. She argued that the county had to note the appeal within 30 days of the March judgment order; it wasn’t allowed to wait until entry of the fee order in August.

If you’ve ever received a motion like this, you know well the hot feeling it engenders in the pit of your stomach. Your head reels as you contemplate the awful possibility that the Bad Guys might be right, and you’ve screwed up the appeal by missing a jurisdictional deadline.

Alas, that dreadful sensation can only grow for the county’s lawyers, as the panel unanimously concludes that the appeal is untimely. When a district court enters judgment on the merits of a claim, and retains the case solely to consider an award of statutory fees and costs, the clock starts ticking immediately for an appeal of the underlying judgment. That means that the notice of appeal had to be filed in April, not September. Accordingly, the appellate court is without jurisdiction over the case, so it never reaches the merits of the primary issue.

There is a saving provision that might have salvaged the county’s appeal: FRAP 58(e) allows tolling of the running of the appeal period to allow the district court to adjudicate post-trial motions, and this fee petition likely would qualify for that. But the tolling provision doesn’t apply automatically; it only applies when the court invokes it, presumably in response to a motion. Since the county never made that motion, the rule doesn’t help.

I invite my loyal readers – and what the heck; even those of you who have only arrived on this scene recently – to note that this result is almost certainly different from what would prevail in state courts. There, where a circuit court enters what would normally be a final order adjudicating the merits, but “retains jurisdiction” to consider ancillary relief such as fees or sanctions, that order is not final and cannot be appealed.

There’s a denouement to the story. The panel does take up the county’s appeal of the fee award, since the notice of appeal was timely as to that decision. But this challenge fails on the merits, as the Fourth finds that the fee award was within the district court’s discretion.


The en banc decision in Whiteside v. US will raise some eyebrows. Whiteside pleaded guilty in 2010 to a drug-distribution offense. Because he had two previous drug-distribution convictions, he was classified as a career offender under then-current Fourth Circuit caselaw. The district court sentenced him to 210 months in prison. I’ll do the math for you; that’s about seventeen years.

One year and twelve days later, the Fourth Circuit handed down US v. Simmons, in which the court acknowledged that a recent decision from SCOTUS meant that that preexisting career-offender caselaw from the Fourth was incorrect. With this new arrow in his quiver, Whiteside filed a §2255 action in which he sought resentencing. He pointed out that without the erroneous sentencing enhancement, he might only be looking at nine years in prison, not 17.

The district court denied the petition, noting that it was untimely filed. Earlier this year, a Fourth Circuit panel reversed that decision and sent the case back for a hearing on the merits. But the court chose to rehear the case en banc, leading to Friday’s decision.

By a vote of 12-3, the Fourth votes to affirm the denial of the petition as untimely. Such petitions have to be filed within one year, and Whiteside missed that deadline. He argued that the Simmons case from 2011 constituted a new “fact” that restarted the clock for him. But adopting the uniform view of other circuits, the majority notes that Simmons was a change of law, not a new fact, so that won’t work.

Whiteside’s next tack produces the “3” in the 12-3 ruling. He argues that the statute of limitations should be equitably tolled. As the majority opinion notes,

Equitable tolling of petitions for collateral review is available only when a defendant demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). Under this court’s precedent, equitable tolling is appropriate in those “rare instances where – due to circumstances external to the party’s own conduct – it would be unconscionable to enforce the limitation period against the party and gross injustice would result.”

The question becomes, then, whether the Fourth Circuit’s incorrect caselaw, once uncovered and corrected in Simmons, is an extraordinary circumstance.

The majority holds that Whiteside had not, in fact, “been pursuing his rights diligently.” He could have filed a petition within a year, but he didn’t. In response to his argument that the prior caselaw made that futile, the court cites SCOTUS precedent for the premise “that alleged futility cannot serve as ‘cause’ for a procedural default in the context of collateral review.” That is, you have to exercise your right to sue even though it would be objectively futile to do so under the current state of the law.

The majority also looks to practical considerations. It holds that opening the courthouse doors to Whiteside would essentially open a floodgate of claims, all time-barred but subject to ex post facto review based on subsequent changes in law – it would “foreshadow a tectonic shift of resources from trial and direct appeal to repetitive rounds of collateral review.”

There are two dissenting opinions. Both Judge Gregory (writing for Senior Judge Davis) and Judge Wynn channel their inner John McEnroe, fairly shouting, “You cannot be serious!” The dissents note that the origin of Whiteside’s predicament is the Fourth Circuit itself, which got the interpretation of the sentencing parameters wrong in the first place. When the court corrected that error in 2011 – after a gentle prod from the Supreme Court – it should, the dissenters feel, have afforded some succor to those who suffered because of the court’s mistake.

There are plenty of appellate bons mots in the dissents. The authors have, you will see, been boning up on their Scalia-isms.

Judge Gregory notes that the court has the SCOTUS-given authority to grant equitable tolling, observing that the Supreme Court caselaw provides that there is a presumption in favor of doing so. But “[r]ather than heed the Supreme Court, the majority constructs for itself and then hides behind false barriers to doing what is right.” While he acknowledges that the perceived futility of a motion doesn’t forgive a failure to make that motion, he notes the irony implicit in the majority’s holding: “I find it glaringly inconsistent of the majority to warn against ‘invit[ing] additional collateral attacks,’ … while simultaneously penalizing Whiteside for not bringing a meritless petition in the time before Simmons was decided …” He derides the majority’s deference to “the holy principle of finality” – now, there’s a phrase that will make its way into future appellate briefs – and criticizes “the majority’s hyperbolic tendencies” when it forecasts a collateral-review deluge.

Here’s his concluding paragraph, which is worth quoting in full:

My point is that the statistical deck was stacked against Deangelo Whiteside from the beginning. Then, our mistake in casting him a career offender relegated him to an even longer term of imprisonment. In the face of this mistake, it is ironic that our branch of government is the one dragging its feet on the road towards equal justice under the law. Rather than take the slightest step in defense of a citizen’s liberty, we throw up our hands and say, “too little, too late.” And for what reason? To avoid the chaos that would befall society if criminals were imprisoned according to a correct understanding of the law?

Not to be outdone, Judge Wynn takes up the cat-o-nine-tails and resumes the process of scourging the majority. He starts by quoting Judge Wilkinson – not even remotely coincidentally, the author of the majority opinion:

The majority opinion will, without a doubt, “drive citizens to rub[] their eyes and scratch[] their heads.” United States v. Foster, 674 F.3d 391, 395 (4th Cir. 2012) (Wilkinson, J., concurring in denial of rehearing en banc). “If one were to inquire of an objectively reasonable person on the street whether” a court should allow the correction of a sentencing mistake caused solely by its own error—an error that will likely cost a man eight years of freedom—no doubt the citizen’s “response would be ‘Of course. Why do you ask?’” Id.


The majority opinion spills considerable ink explaining why the judiciary should not bear the burden of its own mistake. Those who were wrongly (over-)sentenced will surely sleep easier knowing that the courts are not being overworked by too many “tickets to being resentenced.” Ante at 16. The prison staff that must look after wrongly-imprisoned defendants—not to mention the taxpayers who foot the hefty bill for their (wrongful) incarceration—might, however, take issue with the majority’s calculus.

Time for an aside: For those of us who make our livings by reading appellate opinions – usually exceedingly dry stuff – vituperative prose like this is fascinating, in a morbid kind of way. It’s like an appellate auto crash: you can’t avert your eyes, even though you know that, in the interest of civility, decorum, and respect for the institution, you should. I will readily admit that you’re a better person than I am if you can turn away from this series of highly entertaining bench-slaps.

Now, where were we? Oh, yes; Judge Wynn’s vigorous dissent. He next cites a Seventh Circuit decision, which held that “justice requires the ability to rectify substantial uncontroverted judicial errors that cause significant injury. This is why in our anthropomorphization of Justice, she is wearing a blindfold, and not running shoes.” Finally, he returns to his starting point:

“Even appellate judges are endowed with brains in the hope and expectation that they will be used to obvious purpose.” Foster, 674 F.3d at 394 (Wilkinson, J., concurring in denial of rehearing en banc). If rectifying a mistake of our own creation—one that will cost a man eight years of his freedom—does not constitute an “obvious purpose,” I do not know what does.

I really do commend to you the task of reading the full opinion – plus dissents, of course – to get a sense for where the Fourth is on this issue.


Finally, today’s decision in Stuart v. Camnitz is unanimous; Judge Wilkinson writes for Chief Judge Traxler and Judge Duncan. The court holds that North Carolina’s ultrasound statute cannot be squared with the First Amendment. In doing so, it affirms a district judge’s order granting summary judgment and enjoining enforcement of the statute.

The Tar Heelers’ act required doctors or technicians to perform and narrate an ultrasound before an abortion can be performed, even if the patient doesn’t want to see or hear it. “The woman, however, may ‘avert[] her eyes from the displayed images’ and ‘refus[e] to hear the simultaneous explanation and medical description’ by presumably covering her eyes and ears.”

This, you will immediately appreciate, is not a requirement that finds its direct inspiration in Hippocrates. It’s unquestionably an attempt by opponents of abortion to make it tougher for pregnant women to go through with the procedure, by conscripting physicians to provide arguments to dissuade the patient.

The threshold issue is what level of scrutiny should be applied to the statute. The state understandably urged rational-basis review, while the challengers argued that the court should apply strict scrutiny.

The court notes that compelled speech is fully within the First Amendment. (“[T]he First Amendment . . . includes both the right to speak freely and the right to refrain from speaking at all.”) Finding this “quintessential compelled speech,” the court observes that a content-based speech regulation typically gets strict scrutiny; but the state countered that this is a regulation of the practice of medicine, and that leads to rational-basis analysis. So, how does a court resolve these competing principles?

Easy: heightened scrutiny. The Fourth Circuit affirms the district court’s decision to follow the middle path of intermediate scrutiny. In doing so, it parts company with the Fifth and Eighth Circuits, each of which had applied the more-forgiving rational-basis review. The Fourth finds that those decisions rely on a misreading of the relevant SCOTUS decision.

Using the middle-ground approach, the court notes that protecting fetal life and health are indeed valid governmental interests. But it finds that this statute goes far beyond a reasonable means of addressing that interest:

This statutory provision interferes with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient’s psychological health, interfering with the physician’s professional judgment, and compromising the doctor-patient relationship.

The court concludes that this statute imposes “an extraordinary burden on expressive rights,” and thus affirms the district court’s injunction.

In answer to the question that has already occurred to you, I’m not certain what this ruling portends for Virginia’s parallel statute. I doubt that our statute contains the exact provisions at issue here, so today’s ruling may not be on all fours with the Virginia act.