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Unpublished opinions: why lawyers care

Lawyers who follow the 4th U.S. Circuit Court of Appeals know the Richmond-based court is not generous with published opinions.

According to a cover story in the June 2008 ABA Law Journal, the court, which has been short-handed for years, issued the lowest percentage of published opinions of all federal circuits in 2006 – 6 percent vs. 16 percent for the average of all circuits.

One academic study of appellate courts has suggested that appellate judges’ ideological preferences are different in published and unpublished opinion; judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions.

So it may pay to track that vast shadow world of unpublished opinions. At least that’s our intro to a round-up of recent unpublished decisions of interest to Virginia lawyers:

* Cop Can Check Car Exhaust System. A Waynesboro police officer could stop a car to check for an illegally altered exhaust system, based on what the officer heard. When the officer could still hear the muffler rumbling from 70 feet away, it didn’t matter that he stopped the car before he could see whether the driver had altered the factory muffler. The 4th Circuit said in its July 7 opinion in U.S. v. Cousins that any mistake by the officer in guessing the cause of the exhaust noise did not eliminate his “reasonable and articulable suspicion” that the exhaust system violated Va. Code § 46.2-1049, and the guns and drug residue need not be suppressed.

* Attorney’s Fees On Late Petition. In its June 16 decision in Gaskins v. BFI Waste Services LLC, the appellate court vacated an award of $427,374 in attorney’s fees and costs to two men who won their race-based Title VII hostile environment case against BFI Waste Services, holding that Alexandria U.S. District Judge Gerald Bruce Lee had no authority under FRCP 6(b) to sua sponte extend the time for the plaintiffs to file their fee petition.

The court said that on remand for consideration of “excusable neglect,” the district court would have to weigh the plaintiffs’ option of a malpractice action against the lawyers who had won their “difficult and time-consuming case” and to whom plaintiffs already had paid $240,000 in fees, against BFI’s expense for appeal of the fee award that could have been reviewed two years ago.

* No Breach Of Real Estate Contract. A buyer got his $100,000 deposit back when the 4th Circuit reversed judgment for the seller of a Spotsylvania County tract in a million-dollar deal that fell apart at the closing table. According to the June 12 decision in Herder v. Simms, the Alexandria federal district court erred in holding that, by waiting until the parties were at closing to raise title defects, the buyer had waived the defects and had to close or breach the contract

* Feds Not Bound by Numbers in Letter. A letter from a federal prosecutor trying to sell a drug defendant a deal for “15 years instead of 65” was cold comfort for the defendant after his guilty plea and sentence of 26 years. In U.S. v. Morgan, the standard merger clause and other terms in the written plea agreement, plus the defendant’s responses in court, supported the longer sentence. But in its July 3 decision, the 4th Circuit did remand to the Roanoke U.S. District Court for resentencing under U.S. v. Booker.

By Deborah Elkins

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