Fourth Circuit

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.

Interesting Quote from a CA4 Concurring Opinion re: Tribal Sovereignty and Tribal Corporations

Matthew L.M. Fletcher

Tribal corporations are still sovereigns, end of story. From United States v. Bly (concurring opinion)

It does point to the fact that, in addition to being a state agency, the University is a corporation under state law. This is true but irrelevant. The Supreme Court has never suggested that the state law designation of a sovereign entity as a corporation eliminates that entity’s status as a sovereign. Indeed, when a sovereign Indian Tribe and a corporation that was an “ ‘arm’ of the Tribe” sought to be recognized as “person[s]” under a federal statute, the Supreme Court denied this status to both the Tribe and corporation, without distinguishing the two, because both were sovereign entities. Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 704, 705 n. 1 (2003). Similarly, the Court has recognized that although “state officials literally are persons,” they are nonetheless presumed not to be included within the statutory term “person” when acting in their “official capacity” because in those circumstances they are “no different from … the State itself.” See Will v. Mich. Dept. of State Police, 491 U.S. 58, 64, 71 (1989).

Aleman v. Chugash Materials

Matthew L.M. Fletcher

Earlier this year, the 4th Circuit held, per Wilkinson, J., that Section 1981 may be used to prosecute race discrimination claims against Alaskan Native Corporations. In short, the Court concluded that ANC’s are not sovereigns. A troubling conclusion unmoored from even Alaskan Supreme Court precedents like John v. Baker. Here are the materials:

Aleman v. Chugash Support Services, Inc. Opinion

Appellant Brief

Appellee Brief

Appellant Reply Brief

Appellant’s Amicus