Fourth Circuit

Noah Feldman on the Impact of Western Sky-Inspired Litigation on Tribal Sovereignty

Matthew L.M. Fletcher

Noah Feldman has posted “Tribes Don’t Get a Pass on Federal Law” on Bloomberg. HT How Appealing.

Despite the title (oh those editors!), tribal sovereignty isn’t mentioned until the last two paragraphs:

[Judge] Wilkinson tried to duck the deepest question in the case: Would it be all right to take federal law out of the picture altogether if Indian law applied instead? In this case, in practice, the recourse to tribal law would’ve been empty. But what if the Cheyenne River Sioux did have a robust arbitration mechanism in place or rules to guide an arbitration?

Under the decision, that shouldn’t matter: The court held that any agreement that rejects the application of federal law can’t be enforced. At the margin, this decision may actually reduce Indian tribes’ sovereignty. Whether it will help protect consumers from predatory lenders will depend on how other courts cite it.

These are good points. They could be tempered with a couple minor quibbles, mostly that the Cheyenne River Sioux Tribe, as I understand it, had nothing to do with Western Sky’s dispute resolution strategies. Perhaps anything the court said about that’s tribes sovereignty has to be dicta, and my reading of the opinion didn’t see anything like that (unlike the Seventh Circuit’s decision in Jackson).

This will be good fodder for consideration at the ASU e-Commerce meeting later this week….

 

Law Review Article on Principal Briefs in Supreme Court Cases (Inc. Adoptive Couple v. Baby Girl)

Kate Fort

Here.

Given the decision of NCFA to appeal the recent win in the Eastern District of Virginia to the Fourth Circuit this may be useful (if frustrating) reading.

As always, Adoptive Couple v. Baby Girl materials, including briefs, law review articles, and cases, are here.

Fourth Circuit Briefs in Arbitration Case Arising from the Wreckage of Western Sky

Matthew L.M. Fletcher1 Comment

Here are the briefs in Hayes v. Delbert Services Corp.:

Hayes Brief

Delbert Services Brief

Amicus Brief

Lower court materials here.

Fourth Circuit’s Decision in Moses v. CashCall

Matthew L.M. Fletcher

Here are the materials:

CashCall Opening Brief

Moses Brief

CashCall Reply

Amicus Brief — Bankruptcy Attys

Amicus Brief — Chapter 13 Trustees

CA4 Opinion

An excerpt:

This bankruptcy appeal presents the issue of whether two claims, one for declaratory relief and one for money damages, asserted by debtor Oteria Moses in an adversary proceeding, are subject to arbitration. The bankruptcy court retained jurisdiction over the first claim and denied the motion of CashCall, Inc. to compel arbitration. With respect to the second claim, it made recommended findings of fact and conclusions of law, likewise to retain jurisdiction over the claim and deny the motion to compel arbitration. On appeal from the bankruptcy court, the district court affirmed the bankruptcy court’s denial of the motion to compel arbitration as to the first claim and, itself, denied the motion to compel arbitration with respect to the second claim.
On appeal, we hold, for the reasons given by Judge Niemeyer in Parts I, II.A, and III of his opinion, in which Judge Gregory joined, that the district court did not err in affirming the bankruptcy court’s exercise of discretion to retain in bankruptcy Moses’ first claim for declaratory relief. We also hold, however, that the district court erred in retaining in bankruptcy Moses’ claim for damages under the North Carolina Debt Collection Act and denying CashCall’s motion to compel arbitration of that claim. Judge Gregory and Judge Davis wrote separate opinions concurring in that judgment. Judge Niemeyer wrote a separate opinion on that issue, dissenting.
Accordingly, the judgment of the district court is affirmed in part and reversed in part, and this matter is remanded to the district court with instructions to grant CashCall’s motion to compel arbitration on Moses’ second claim for damages.

Fourth Circuit Dismisses Yamassee Indian Tribe’s Pro Se Land Claims

Matthew L.M. Fletcher

Here are the materials in Yamassee Indian Tribe v. Allendale County Government:

Allendale County Brief

CA4 Order

Yamassee Brief

Brantley Brief

Slate: Worst Argument Ever against Gay Marriage — Pocahontas and John Rolfe?

Matthew L.M. Fletcher

Hubba wha?

Here, “The Worst Argument Ever Made Against Gay Marriage” by David S. Cohen.

An excerpt:

I won’t hide the ball here, so here it is: Gay people should not be able to get married because Pocahontas married John Rolfe.

This argument was actually made in federal court Tuesday, before the judges of the Court of Appeals for the 4th Circuit in Richmond, Virginia. They were hearing a challenge to Virginia’s ban on same-sex marriage. The argument is hands-down the worst argument ever offered against same-sex marriage.

A link to the oral argument is here.

Fourth Circuit Affirms Major Crimes Act Murder Conviction Arising on Eastern Band Cherokee Reservation

Matthew L.M. Fletcher

Here is the opinion in United States v. Lespier.

Fourth Circuit Upholds North Carolina Statute Encouraging Black and Indian Public Contracting

Matthew L.M. Fletcher

Interesting case, quite possibly going to the Supreme Court for review (assuming the CA4 doesn’t reverse en banc) — H.B. Rowe Co. v. Tippett.

Eastern Band Cherokee Member Challenges Federal Garnishment of Gaming Per Caps

Matthew L.M. Fletcher

This is an interesting case to watch, United States v. Lambert, in the Fourth Circuit. Here is the opening brief:

Lambert Appellant Brief

UPDATE: CA4 Opinion

Here is a similar case involving the Eastern Band’s efforts to raise sovereign immunity (materials here). The Lambert case is the direct challenge to the garnishment by a convict.

Patricia Millett Recommended for CA4

Matthew L.M. Fletcher

Patricia Millett is a speaker at this year’s FBA Indian Law Conference (agenda).

From BLT, via How Appealing:

Akin Gump Strauss Hauer & Feld partner Patricia Millett, who co-chairs the firm’s Supreme Court practice, is among the group of five Virginia residents recommended by the Virginia Bar Association to serve on the U.S. Court of Appeals for the 4th Circuit.

The voluntary bar association recommended Millett along with state Sen. John Edwards (D-Roanoke), Virginia Supreme Court Justice Barbara Keenan, University of Virginia Law School professor James Ryan, and Hunton & Williams partner John Thomas, a former Virginia Supreme Court justice. The names were submitted this week to Virginia Senators Mark Warner and Jim Webb. Other bar associations in Virginia are also assessing candidates.

Millett, who lives in Alexandria, has argued extensively in the Supreme Court as a partner with Akin Gump and while serving as an assistant to the Solicitor General from 1996 to 2007, when she went into private practice. At Akin Gump, Millett’s practice has an emphasis in administrative law, civil rights, and national security, among other areas.

The Virginia State Bar’s executive committee is scheduled to meet Friday to review applicants who want to serve on the 4th Circuit in Richmond. The four vacancies on the court—which takes appeals from the Carolinas, Virginia and West Virginia, and Maryland—have generated considerable attention in recent months as lawyers speculate about the court shifting to the left under the Obama administration.

Millett is among several D.C.-based lawyers who applied for consideration by the Virginia State Bar. Covington & Burling partner Michael Baxter; Holland & Knight senior counsel Sharon Eubanks; and Wiley Rein partner Richard Simpson also applied. All four live in Virginia, but only Simpson is a member of the Virginia Bar.

The VSB, the only mandatory bar association, does not make recommendations but instead determines whether a candidate is highly qualified, qualified, or not qualified. Edwards, Keenan, Ryan, and Thomas also submitted their names to the VSB for consideration.