U.S. Court of Appeals For The Fourth Circuit

Oral Argument Calendar
Richmond, Virginia
(09/24/2001 - 09/28/2001 Session)



Monday, September 24, 2001
9:30 a.m.



COURTROOM 1 - Courthouse Room 435 (Red Carpet)

00-2328 Pleasurecraft Marine v. Thermo Power
CONTRACTS. Challenge to summary judgment in action arising
out of corporate asset purchase agreement.
Lower Court Judge: Shedd

00-2419 Intown Properties v. Wheaton Van Lines
CIVIL PROCEDURE. Whether appellant is a real party in
interest; amendment of complaint and relation back theory;
other issues.
Lower Court Judge: Seymour

00-2437 USA v. Antonio Morrison
ATTORNEY'S FEES. Whether defendants may recover attorney's
fees under a common benefit theory under the Equal Access
to Justice Act.
Lower Court Judge: Kiser

00-2435 Stanley Axel v. Kenneth Apfel
TITLE VII. Whether summary judgment was proper on
appellants' Title VII and ADEA claims in action challenging
government agency's implementation of affirmative action
plan.
Lower Court Judge: Nickerson


COURTROOM 2 - Courthouse Room 233 (Green Carpet)

00-2275 Larry Campbell v. John Lyon
TORTS. Challenge to summary judgment in action alleging
invasion of privacy, interference with business relations,
and abuse of process in regard to landfill project.
Lower Court Judge: Williams

00-2365 Deitra Golson v. Green Tree
EMPLOYMENT. Challenge to denial of employer's motion for
judgment as a matter of law on claim of pregnancy
discrimination; punitive damages.
Lower Court Judge: Perry

01-6730 Leonard-Bey v. Conroy
HABEAS CORPUS. Challenge to district court's grant of
habeas relief based upon allegation that counsel was
ineffective in not requesting expanded jury instruction on
law of felony murder.
Lower Court Judge: Nickerson

00-7408 Sherwood Hill v. D. A. Braxton
AEDPA. Whether Hill's allegation that prison officials lost
his legal material makes out a claim of state court impedi-
ment under 28 U.S.C.A. Section 2244(d)(1)(B) or justifies
equitable tolling of the one-year limitations period under
Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000).
Lower Court Judge: Bryan


Tuesday, September 25, 2001
9:30 a.m.



COURTROOM 2 - Courthouse Room 233 (Green Carpet)
(En banc rehearings)

99-2494 (L) 00-1065 Overnite Transp Co v. NLRB
REHEARING EN BANC


COURTROOM 1 - Courthouse Room 435 (Red Carpet)
(Beginning at conclusion of en banc rehearings)

01-1151 (L) 01-1271 01-1272 01-1818 Satellite Broadcasting v. FCC
CONSTITUTIONAL LAW. Whether the Satellite Home Viewer
Improvement Act violates the First Amendment or Copyright
Clause; challenge to FCC's decision regarding satellite
carriers' use of statutory license.
Lower Court Judge: Lee

00-2520 USA v. Consumer Health
FALSE CLAIMS ACT. Challenge to summary judgment in action
alleging double billing of Medicare and third-party payers;
challenge to dismissal of age discrimination claim based on
res judicata.
Lower Court Judge: Hilton

99-4883 (L) 99-4914 99-4915 USA v. Gary McDuffie
CRIMINAL. Whether exclusion of the defendants from the
courtroom during a discussion of juror safety constitutes
reversible error.
Lower Court Judge: Brinkema


COURTROOM 2 - Courthouse Room 233 (Green Carpet)
(Beginning at conclusion of en banc rehearings)

00-2495 Lauri Hartz v. Liberty Mutual
INSURANCE. Challenge to grant of summary judgment on claims
against insurer of misrepresentation, tort arising from
contract and intentional infliction of emotional distress.
Lower Court Judge: Messitte

01-1254 Big Red v. Davines S.P.A.
UNFAIR TRADE PRACTICES. Challenge to dismissal of action
alleging breach of contract, negligent misrepresentation
and unfair and deceptive trade practices arising out of
trade agreement to distribute hair products.
Lower Court Judge: Fox

01-1328 (L) 01-1363 Patricia Prichard v. Jane Kurucz
MEDICAL MALPRACTICE. Challenge to denial of motions for
mistrial and new trial based on plaintiff's counsel's
alleged misconduct; challenge to state's limit on
non-economic damages.
Lower Court Judge: Chambers


COURTROOM 3 - Courthouse Room 225 (Tan Carpet)
(Beginning at conclusion of en banc rehearings)

00-7427 USA v. James Segers
AEDPA. Whether one-year limitation period for filing
Section 2255 motion is tolled during pendency of rehearing
petition in U. S. Supreme Court.
Lower Court Judge: Osteen

01-1081 Montgomery Mutual v. Hartford Fire
INSURANCE. Whether district court erred in enforcing a
policy provision obligating insurer to pay even though
insured was fully indemnified by another insurer.
Lower Court Judge: Bryan

01-1105 Jackson Martin v. Manna Pro Corp
EMPLOYMENT. Whether summary judgment was properly granted
to defendant on discrimination claim under the West
Virginia Human Rights Act.
Lower Court Judge: Haden


COURTROOM 4 - Courthouse Room 420 (Tweed Carpet)
(Beginning at conclusion of en banc rehearings)

01-1296 R L Jordan Oil v. Boardman Petroleum
UNFAIR TRADE PRACTICES. Whether retailer violated state law
by selling gasoline below cost in order to underprice a
competitor.
Lower Court Judge: Herlong

00-7163 John Walkowiak v. William Haines
HABEAS CORPUS. Whether period during which a state Rule 35
motion was pending tolls the one-year statute of
limitations under the AEDPA.
Lower Court Judge: Keeley

00-1956 (L) 00-2135 Union Carbide v. NLRB
LABOR. Whether employer discharged employee for engaging in
protected concerted activity.


Wednesday, September 26, 2001
9:30 a.m.



COURTROOM 1 - Courthouse Room 435 (Red Carpet)

01-1275 (L) 01-1695 EMS Financial Inc v. Alta Financial Inc
ARBITRATION. Whether a district court can compel
arbitration of a contract dispute during the pendency of a
state court action to rescind the contract; other issues.
Lower Court Judge: Garbis

01-1265 Clark Construction v. Modern Mosaic
CONTRACTS. Challenge to summary judgment in action alleging
breach of contract to provide complete defense and full
indemnification for underlying litigation.
Lower Court Judge: Garbis

00-7439 Calvin Allen v. Tim O'Dell
HABEAS CORPUS. Whether the Section 2254 limitations period
is tolled during gap between state court's denial of
postconviction action and the prisoner's subsequent
petition for certiorari to the highest state court.
Lower Court Judge: Mullen

00-4675 USA v. Willis Haynes
CRIMINAL LAW. Whether the trial court erred by denying
appellant's motion for judgment of acquittal on all counts;
other issues.
Lower Court Judge: Messitte


COURTROOM 2 - Courthouse Room 233 (Green Carpet)

00-2247 (L) 00-2292 Robert Doe v. Elaine Chao
PRIVACY ACT. Challenge to summary judgment on the grounds
that plaintiffs failed to offer evidence of actual damages
despite having opted to recover statutory minimum damages;
attorney's fees; denial of class certification.
Lower Court Judge: Williams

01-1163 USA v. Tommy Srnsky
FEDERAL LAND POLICY MANAGEMENT. Whether landowners must
obtain a federal permit to use access road to their
property in National Forest.
Lower Court Judge: Keeley

01-1075 James Moser v. USA
BANKRUPTCY. Whether the IRS' third amendment of its proof
of claim is entitled to the presumption of correctness.
Lower Court Judge: Tilley


COURTROOM 3 - Courthouse Room 225 (Tan Carpet)

00-2503 Thomas Patten v. Stephen Nichols
CIVIL RIGHTS. What duty of care is owed by medical staff
treating an involuntarily committed patient at a
psychiatric facility; other issues.
Lower Court Judge: Kiser

00-2198 Donald McAbee v. William Halter
SOCIAL SECURITY. Whether claimant's new evidence required a
sentence six remand.
Lower Court Judge: Herlong

01-1071 U S Specialty Ins v. Skymaster
INSURANCE. Whether there must be causal link between breach
of aviation insurance policy provisions and accident to
avoid insurer's liability.
Lower Court Judge: Miller

01-1144 (L) 01-1230 Coastal Lumber v. NLRB
LABOR. Whether Board improperly certified collective
bargaining unit that allegedly contained statutory
supervisors.


COURTROOM 4 - Courthouse Room 420 (Tweed Carpet)

01-4 Heath Burch v. Thomas Corcoran
HABEAS CORPUS. Numerous issues arising out of state capital
murder conviction and sentencing.
Lower Court Judge: Garbis

01-6703 James Harvey v. Robert Horan
CIVIL RIGHTS. Whether state's denial of post-conviction DNA
testing is a constitutional violation.
Lower Court Judge: Bryan

01-1302 Eddie Hightower v. GMRI
ARBITRATION. Challenge to denial of motion to compel
arbitration in Title VII action.
Lower Court Judge: Britt

01-4249 USA v. John Hudson
SENTENCING. Challenge to district court's reduction for
acceptance of responsibility and refusal to enhance for
obstruction of justice where defendant failed to appear for
sentencing and was a fugitive.
15 mins. per side
Lower Court Judge: Mullen


Thursday, September 27, 2001
9:30 a.m.



COURTROOM 1 - Courthouse Room 435 (Red Carpet)

00-2523 Mark Silvestri v. General Motors
PRODUCTS LIABILITY. Challenge to grant of summary judgment
on issue of spoliation.
Lower Court Judge: Nickerson

00-2525 A. Archer v. Arlene Warner
BANKRUPTCY. Whether a fraud claim settled prior to filing
bankruptcy is dischargeable.
Lower Court Judge: Bullock

00-4929 USA v. Marc Simpson
CRIMINAL. Whether, in light of Apprendi, the term of
supervised release imposed after revocation of supervised
release is statutorily authorized; other issues.
Lower Court Judge: Fox

00-7578 USA v. Shahborn Emmanuel
HABEAS CORPUS. Whether the district court erred by sua
sponte construing without notice appellant's motion filed
under Rule 35 of the Federal Rules of Criminal Procedure as
a Section 2255 motion.
Lower Court Judge: Voorhees


COURTROOM 2 - Courthouse Room 233 (Green Carpet)

99-4417 (L) 99-4492 USA v. Jacob Harrison
CRIMINAL LAW & PROCEDURE. Ten-year consecutive sentences
under 18 U.S.C.A. Section 924(c)(1)(B)(i); other issues.
Lower Court Judge: Currie

01-1435 Continental Airlines v. United Airlines
ANTITRUST. Whether the installation of baggage templates at
airport's shared security checkpoints violates the Sherman
Act.
Lower Court Judge: Ellis

00-4345 USA v. Lent Carr
CRIMINAL LAW & PROCEDURE. Validity of arson conviction;
refusal to depart from guideline range.
Lower Court Judge: Howard


COURTROOM 3 - Courthouse Room 225 (Tan Carpet)

01-4173 USA v. William Streett
CRIMINAL LAW & PROCEDURE. Whether retrial after mistrial
due to a hung jury constitutes double jeopardy.
Lower Court Judge: Jones

01-1281 Joseph Duffy v. Vision Hardware
CONTRACTS. Whether the consideration received by a parent
corporation upon the sale of a subsidiary corporation
included relief from trade debt liabilities; other issues.
Lower Court Judge: Motz

01-1303 Lorraine Moser v. Ford Motor
PRODUCTS LIABILITY. Challenge to summary judgment in action
alleging defective seatbelt design and failure to warn.
Lower Court Judge: Keeley

01-1130 (L) 00-2533 Ellett Brothers v. USF&G
INSURANCE. Challenge to summary judgment in favor of
insurance company finding no duty to defend claims brought
against appellant by three California municipalities and
the NAACP for injunctive and declaratory relief and damages
due to negligent marketing and distribution of firearms.
Lower Court Judge: Shedd


COURTROOM 4 - Courthouse Room 420 (Tweed Carpet)

01-1295 Nationwide Mutual v. Jo-Anna Smelser
INSURANCE. Whether injuries received in drive-by purse
snatching were covered by uninsured motorists coverage.
Lower Court Judge: Bradberry

01-1140 Sydney Pettyjohn v. Mission-St. Joseph
EMTALA. Whether a psychiatric patient who is found not to
be suicidal at the time of discharge had an emergency
medical condition within the meaning of the Emergency
Medical Treatment and Active Labor Act.
Lower Court Judge: Cogburn

00-4423 USA v. Keith McAllister
CRIMINAL LAW. Whether the district court clearly erred in
imposing two-level enhancement pursuant to USSG Section
2D1.1(b)(1)(2000); other issues.
Lower Court Judge: Houck


Friday, September 28, 2001
8:30 a.m.



COURTROOM 1 - Courthouse Room 435 (Red Carpet)

00-4574 USA v. Melvin Adams
SENTENCING GUIDELINES. Whether district court had authority
to depart downward based on post-sentencing rehabilitation.
Lower Court Judge: Fox

00-4549 USA v. James Mason
SENTENCING GUIDELINES. Whether appellant's conviction
attained prior to age eighteen qualified as predicate
offense under career offender guideline, USSG Section 4B1.1
(1998).
15 mins. per side
Lower Court Judge: Haden

01-4155 USA v. Zia Hassanzadeh
CRIMINAL LAW & PROCEDURE. Whether defendant had sufficient
knowledge of the origin of illegally imported Iranian
carpets; challenge to the valuation of carpets for
sentencing purposes.
Lower Court Judge: Bryan

01-4026 USA v. Bing Sun
CRIMINAL LAW & PROCEDURE. Challenge to convictions for
violating the Arms Export Control Act by selling military
scrap metal to the People's Republic of China.
Lower Court Judge: Jackson


COURTROOM 2 - Courthouse Room 233 (Green Carpet)

01-4047 USA v. Donntraie Butler
SENTENCING GUIDELINES. Whether government's refusal to move
for downward departure was rationally related to legitimate
government end.
Lower Court Judge: Osteen

00-7681 Ana Kurfees v. INS
IMMIGRATION. Whether the district court had jurisdiction
over 28 U.S.C. Section 2241 petition of non-criminal alien.
Lower Court Judge: Voorhees

00-4771 USA v. Gordie Holman
CRIMINAL LAW. Whether admission of nontestifying
co-defendant's inculpatory statement violated Bruton v.
United States, 391 U.S. 123 (1968).
Lower Court Judge: Boyle

00-4591 USA v. Benjamin General
CRIMINAL LAW. Whether waiver of appellate rights is
enforceable; other issues.
Lower Court Judge: Howard


COURTROOM 3 - Courthouse Room 225 (Tan Carpet)

01-1132 Kimberly Certa v. Monroe Harris
FIRST AMENDMENT. Propriety of order dismissing complaint
challenging constitutionality of Va. Code Ann. Section
54.1-2718, on the ground that court should abstain under
Younger v. Harris, 401 U.S. 37 (1971), because there were
ongoing state administrative proceedings; other issues.
Lower Court Judge: Bryan

01-1126 Maureen Walsh v. Potomac Airfield
TORTS. Whether airport or adjoining landowners owed a duty
of care respecting tree obstructions adjacent to landing
fields.
Lower Court Judge: Smalkin

00-4762 USA v. Larry McVay
CRIMINAL. Whether appellant was denied the right to counsel
in a state conviction used as a predicate felony for career
offender status.
Lower Court Judge: Anderson

00-4245 USA v. Juan Martinez
CRIMINAL. Voluntariness of guilty plea in light of Apprendi
holding; other issues.
Lower Court Judge: Osteen


COURTROOM 4 - Courthouse Room 420 (Tweed Carpet)

00-4701 USA v. Alvin Pierce
CRIMINAL. Whether offense of indecent liberties with a
child qualifies as "crime of violence" for career offender
purposes.
15 mins. per side
Lower Court Judge: Thornburg

00-2532 Newport News Shipbld v. Queen Wiggins
LONGSHORE. Whether agency properly found that job claimant
performed for more than a year post-injury was not suitable
alternate employment.
15 mins. per side

01-4148 USA v. Shannell Lowe
CRIMINAL LAW. Whether reindictment on lesser charges after
a successful challenge to a previous indictment which
impacted on seventeen other cases constitutes prosecutorial
vindictiveness.
Lower Court Judge: Cacheris