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4th Circuit goes 0-for-3 at Supreme Court in 2020-21 term

The intermediate U.S. appeals court that reviews federal cases from Maryland and four nearby states batted .000 at the Supreme Court this past term.

Of the three cases it heard from the 4th U.S. Circuit Court of Appeals, the high court upheld none during its 2020-21 term, which ended this month.

One of these three cases originated in Maryland.

In that appeal, the Supreme Court in May vacated a 4th Circuit decision and revived Big Oil’s bid to have Baltimore’s environmental lawsuit against about two dozen fossil fuel companies litigated in federal rather than state court.

The 4th Circuit was not alone in its lack of any success at the Supreme Court. Six other U.S. Circuit Courts of Appeals had decisions decisions reviewed but none affirmed by the justices this past term, according to SCOTUSblog, an online news service that compiles data on the high court.

Overall, the Supreme Court affirmed 20% of the cases it heard in 2020-21.

The 4th Circuit’s lack of affirmances at the high court stands in stark contrast to the 2019-20 term, when the justices upheld three of four cases it heard from the Richmond, Va.-based appellate court, according to SCOTUSblog.

And in five of the six terms before that, the 4th Circuit batted .500, missing out only in the 2017-18 session. In that term, the 4th Circuit was the only one of the 13 U.S. Circuit Courts of Appeals not to have a case heard by the Supreme Court, SCOTUSblog’s data revealed.

Appellate attorney J. Bradford McCullough predicted Friday that the 4th Circuit’s batting average might not return to that lofty level anytime soon with the court leaning ideogically liberal and the Supreme Court being more conservative.

“The 4th Circuit used to have such an image of being conservative and it’s tilted the other way,” said McCullough, of Lerch, Early & Brewer Chtd. in Bethesda. “It’s not the (staunchly liberal) 9th Circuit but it’s certainly not what it used to be.”

Of the 69 cases the Supreme Court heard this past term, 5% originated in the 4th Circuit, which also covers Virginia, West Virginia and the Carolinas.

In the Baltimore case, the justices said the 4th Circuit had applied too narrow a standard for federal court jurisdiction over the city’s lawsuit. The 4th Circuit had erroneously held that federal courts lacked statutory jurisdiction because the oil companies had not claimed to be acting at a federal officer’s direction, the Supreme Court said.

But the justices did not automatically grant federal jurisdiction over Baltimore’s lawsuit, choosing to leave that decision in the first instance to the 4th Circuit.

The case was BP PLC et al v. Mayor and City Council of Baltimore, No. 19-1189.

According to SCOTUSblog, the 11th U.S. Circuit Court of Appeals had the highest affirmance rate of the circuit courts, with 40% of its reviewed decisions upheld by the Supreme Court. The 11th Circuit covers Alabama, Florida and Georgia.

The two other 4th Circuit cases heard and reversed by the Supreme Court last term originated in Virginia and South Carolina.

In the Virginia case, the justices overturned the 4th Circuit in ruling that undocumented immigrants who were deported from the United States but reenter without authorization and are arrested are not entitled to a bond hearing. (Johnson v. Chavez, No. 19-897).

In the South Carolina case, the justices reinstated a man’s plea of guilty to gun possession by a felon.

The 4th Circuit had held that Michael Gary could withdraw his plea because he had not been told that if he went to trial the jury would have to find that he knew he was a felon when he possessed the firearm. But the high court said the failure to inform Gary was harmless error by the judge because Gary must have known he was a felon having been convicted of multiple felonies and thus there was no “reasonable probability” that Gary would actually withdraw his plea. (United States v. Gary, No. 20-444.)