Wake Forest Law Review

By: Sophia Pappalardo & Kenya Parrish

United States v. James Michael Farrell

In this criminal case, Appellant was convicted after a jury trial for ten offenses of money laundering conspiracy, substantive money laundering, and obstruction of justice. Appellant was prosecuted for his role in an elaborate multi-state marijuana trafficking organization. On appeal, Appellant contested several rulings made by the district court regarding evidence admissibility and sufficiency, and jury instructions. The Fourth Circuit rejected Appellant’s contentions of error and affirmed the judgment of the district court. 

United States v. Joshua Wayne Riley

In this criminal case, Appellant was convicted on federal drug-related charges in 2013. Appellant was released from prison in 2016 and began serving his five-year supervised release term. The district court determined Appellant violated the conditions of his supervised release and sentenced Appellant to twelve months’ imprisonment. Appellant appealed, arguing that the court erred in finding Appellant’s statements sufficient to establish the violation of his supervised release. The Fourth Circuit affirmed the judgment of the district court. 

Thomas Franklin Bowling v. Director, VA Dept. of Corrections

In this habeus corpuscase, Appellant was sentenced to life with the possibility of parole when he was seventeen years old and was first eligible for parole in April 2005. Thereafter, Appellant was annually denied parole by the Virginia Parole Board. Appellant alleged that the Parole Board’s repeated denials violated Appellant’s Eighth and Fourteenth Amendment rights. The district court granted the Appellee’s motion to dismiss. Regarding the Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections did not apply to Appellant because he was sentenced to life with the possibility of parole. Additionally, the district court held that the Parole Board’s procedures satisfied the Fourteenth Amendment’s procedural due process requirements. The Fourth Circuit affirmed the judgment of the district court.

By Ryan C Dibilio and Robert M. Padget III

Hannah P. v. Daniel Coats

In this case, Appellant Hannah P. (“Hannah”) asserted that her former employer, the Office of the Director of National Intelligence (“Appellee”), discriminated against her pursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et seq., and violated the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et. seq., by not hiring her for a permanent position.  The district court granted summary judgment for Appellee as to all claims.  The Fourth Circuit affirmed the district court’s judgment as to the Rehabilitation Act and FMLA retaliation claims; however, the Fourth Circuit vacated the judgment as to Hannah’s FMLA interference claim.  The Court determined a genuine issue of material fact remains as to whether Hannah provided notice of her disability and interest in FMLA leave sufficient to trigger Appellee’s duty to inquire.  The Fourth Circuit held that a reasonable jury could find that Hannah’s disclosure of her depression and her April 9, 2015 request for psychiatrist-recommended leave was indeed sufficient to trigger Appellee’s duty to inquire further as to whether she was seeking FMLA leave.  Disclosure of a potentially FMLA-qualifying circumstance, such as depression, and an inquiry into leave options has been held by the Fourth Circuit as sufficient to create a material question of fact regarded whether the employer’s FMLA inquiry obligations have been triggered.  Thus, the case was remanded for consideration of Hannah’s FMLA interference claim.

United States v. Gregory Kyle Seerden

In January 2017, George Kyle Seeden (“Appellant”) was accused of sexual assault on a woman he met in Virginia Beach, Virginia, while visiting for training.  Subsequently, the Naval Criminal Investigation Service (“NCIS”) obtained a military search warrant and found child pornography on Appellant’s phone.  NCIS used this to obtain a federal search warrant and discovered more child pornography.  Appellant sought to suppress the evidence because it violated the Military Rules of Evidence and because it was fruit of the poisonous tree.  While the district court agreed the evidence violated the Military Rules of Evidence “authorization” requirement in Rule 315, the Court admitted the child pornography found in the second search under the good faith exception.  Appellant entered a conditional guilty plea in violation of 18 U.S.C. §§ 2251(a) and (e), production of child pornography.  He then appealed.  The Fourth Circuit reviews a district court’s decision to deny a motion to suppress under two standards of review: (1) findings of fact are reviewed for clear error; and (2) legal conclusions are reviewed de novo.  The Court held that the evidence should not be suppressed under the Military Rules of Evidence because the Federal Rules of Evidence govern admissibility in federal criminal proceedings.  The Court stated, “just as states ‘lack the power to impose on federal courts requirements stricter than those mandated by the federal Constitution . . . so too does the military.’”  Consequently, the Fourth Amendment provides the standard for whether evidence seized pursuant to a non-federal warrant is admissible in federal court.  Further, even if the initial search violated the Fourth Amendment, the good faith exception to the exclusionary rule precludes the evidence obtained in the first and second searches.  The good faith exception admits evidence obtained in unlawful searches on reasonable reliance on a defective warrant.  As Appellant’s commanding officers authorized the search of his phone believing it to be a valid authorization, the good faith exception applies and the evidence is admissible.  For these reasons, the Fourth Circuit affirmed the district court’s judgment.

United States v. Nicholas Young

This was a criminal case in the Eastern District of Virginia where a jury convicted Nicholas Young (“Young”) on one count of attempting to provide material support to the Islamic State of Iraq and the Levant and two counts of attempting to obstruct justice.  Young asserted five sets of errors on appeal.  The first pertained to the district court admitting Nazi and White Supremacist paraphernalia that the FBI discovered in a search of his home and whether the seizure of the items exceeded the search warrant’s scope.  The Fourth Circuit affirmed the district court’s ruling and concluded the seizure did not exceed the warrant’s scope.  The second alleged error was the district court’s admission of an expert witness.  However, determining a witness is an expert is a highly deferential standard, and the Fourth Circuit concluded the district court did not abuse its discretion by admitting the expert.  The next error that Young alleged was that the district court erred when it allowed admission of evidence of Young owning weapons and of evidence of comments Young made about attacking federal buildings. Young also argued that the district court erred in excluding certain comments made by Young and several FBI agents that Young believed to be exculpatory. However, the Fourth Circuit again concluded the district court did not abuse its discretion in its evidentiary rulings.  The fourth alleged error is that the government did not provide sufficient evidence to prove the attempted obstruction of justice charges.  Here, the Fourth Circuit concluded that the evidence presented at trial was insufficient to convict Young on the attempted obstruction of justice counts.  Thus, the Fourth Circuit affirmed the material support conviction, vacated the obstruction convictions, and remanded for resentencing.

ACA Financial Guaranty v. City of Buena Vista, Virginia

In this case, bonds were issued to refinance debt on a municipal golf course in the City of Buena Vista, Virginia (the “City”).  The repayment of the bonds depended on the City making lease payments of the golf course and the City failed to make these payments.  After the City did not make the lease payments, this litigation ensued.  The district court dismissed the complaint.  The Fourth Circuit affirmed the dismissal of the complaint, holding the City’s obligation to make rent payments is not legally enforceable when the obligation to make the payments is expressly subject to the City’s annual decision to appropriate funds.  The Court reasoned that the language of the lease agreement was unambiguous in that if the City did not appropriate funds, the City had no obligation to make the rent payments.  The City decided not to appropriate funds for the rent payments and therefore had no obligation to make the rent payments.  The Fourth Circuit opined that there can be no suit against a party for breaching an obligation if the party never had the obligation in the first place.  Thus, the district court’s judgment was affirmed.

Nikki T. Thomas v. Nancy A. Berryhill

This was a civil case in which the Commissioner of Social Security denied Nikki Thomas’s (“Thomas”) application for supplemental security income (“SSI”).  Thomas obtained review in the district court, which affirmed the denial.  She then appealed to the Fourth Circuit, which found that the Administrative Law Judge (“ALJ”) made two errors, vacated the ruling, and remanded the case.  The issues on appeal were, first, whether the ALJ erred by failing to provide a logical explanation about how the judge weighed the evidence and made the ultimate conclusion regarding Thomas’s residual functional capacity (“RFC”).  The second issue was whether there was an apparent conflict between the dictionary of occupational titles and the vocational expert’s testimony.  The Fourth Circuit determined that when evaluating Thomas’s RFC, the ALJ did not adequately explain the conclusions pertaining to Thomas’s mental impairments because the analysis contained too little explanation for the Court to be able to conduct a meaningful review. Additionally, the Fourth Circuit concluded that there was a conflict between the dictionary of occupational titles and the testimony of the vocational expert, but the ALJ did not identify or resolve it.  For these reasons, the Fourth Circuit vacated the district court’s grant of summary judgment and remanded to the district court with instructions to remand to remand to the Commissioner of Social Security for further administrative proceedings.

Mitra Rangarajan v. Johns Hopkins University

In this civil case, Mitra Rangarajan (“Rangarajan”) was constructively discharged from her job as a nurse practitioner at the School of Medicine of Johns Hopkins University (“Johns Hopkins”).  Rangarajan contended that she was discharged because of discrimination and retaliation, while Johns Hopkins contended that she was discharged because of her performance.  Rangarajan commenced four separate actions against Johns Hopkins arising out of her discharge, alleging state torts of defamation and interference with prospective advantage, as well as violations of the False Claims Act, the Maryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981.  The district court dismissed all four of the actions.  Three of the actions were dismissed by the district court as a sanction for “flagrant and unremitting” violations of the Federal Rules of Civil Procedure by Rangarajan.  The Fourth Circuit held that the district court did not abuse its discretion by dismissing those actions as a sanction.  The Fourth Circuit noted that Rangarajan received notice that dismissal of her actions was a potential sanction that the district court would take.  There was a full opportunity for Rangarajan to respond, and she did in fact respond before any decision on sanctions was actually made.  Rangarajan also rendered the entire discovery process virtually useless by her actions, and the parties had invested substantial time and money in the discovery process.  The Court finally opined that Rangarajan’s abuse of the proceeding would have likely continued into the future.  Thus, the district court did not abuse its discretion and the judgment of the district court was affirmed.

By Mackenzie Bluedorn

Relevant Facts

            The original dispute stemmed from secured loans made from BB&T to Ollie William Faison (“Faison”).  Conditions of the loan included that, should the loans need to be handed over to an attorney for collection, Faison would be responsible for collection costs and reasonable attorneys’ fees.[1]  However, Faison later petitioned for bankruptcy before repayment of the loans.[2]  Shortly thereafter, the bank sold its interests in the loans to a third party, SummitBridge National Investments III, LLC (“SummitBridge”).[3]  Following this transfer, SummitBridge began legal proceedings to enforce the secured claim against Faison.  Although Faison ultimately created a plan for repayment based on the farmland collateral securing his loans, which was approved by the bankruptcy court, SummitBridge was still left with the attorneys’ fees it had incurred while pursuing the claim.[4]  These fees exceeded the amount that was secured by the collateral, effectively making SummitBridge an under-secured creditor.  As such, SummitBridge subsequently filed an unsecured claim for the recovery of its attorneys’ fees in the previous action.[5]

Issue

            Under the Bankruptcy Code, can a creditor pursue an unsecured claim for attorneys’ fees when those fees were guaranteed by the debtor prior to filing for bankruptcy but only incurred subsequent to the bankruptcy petition?

Procedural Posture

            SummitBridge filed an unsecured claim against Faison in the District Court for the Eastern District of North Carolina, a bankruptcy court.  The court found, under the Bankruptcy Code, that a creditor like SummitBridge could not assert an unsecured claim for attorneys’ fees subsequent to Faison filing a bankruptcy petition.[6]  SummitBridge then appealed the ruling, bringing the case now before the Court of Appeals for the Fourth Circuit.

Defendant-Appellee Argument – Faison

            Faison argued that SummitBridge’s claim was directly barred by the Bankruptcy Code.  Under §502, a claim for fees should be determined “as of the date of the filing of the petition . . . .”[7]  Per this language, Faison argued, SummitBridge’s claim could not be determined as of the date of the petition, and was therefore not valid as of that date, because the fees were not incurred until after he filed for bankruptcy.[8]  He also argued under §506, which speaks to identifying whether claims are secured and the recovery of attorneys’ fees for over-secured claims.[9]  He argued that this section implicated a conclusion that attorneys’ fees could be recovered for secured claims but not unsecured claims, such as the one SummitBridge had against him.

            Faison also made a policy argument.  He insisted that SummitBridge was a secured creditor and was guaranteed recovery on the principal loan by the collateral securing the debt.[10]  Because the principal loan was secured, it would be unfair to allow the creditor to also pursue additional unsecured claims against him.[11]  Furthermore, he argued that allowing an otherwise secured creditor to bring unsecured claims for fees would come at the direct expense of other unsecured creditors, who thus might not be able to recover their own principal as a result of the additional claims.[12]

Holding & Rationale

            The Court of Appeals for the Fourth Circuit first took a textual approach, reviewing the explicit language of the Bankruptcy Code in §§ 502 and 506, as it responded to Faison’s arguments.  Under §502, the court rejected Faison’s argument by stating that the claim itself need not be evaluated as of the date of the bankruptcy petition; rather, the right to that claim need only have been created as of the date of the petition.[13]  A previous Supreme Court ruling precluded that the actual amount of the claim needed to be known as of the date of the petition.[14]  Furthermore, Faison’s argument would be inconsistent with the §502, which enumerated specific exceptions; this scenario was not an enumerated exception, leading to the conclusion that recovery of attorneys’ fees incurred post-petition were not meant to be excepted from the claims that could be brought.[15] The court also rejected an analogy to another case that rejected an unsecured claim for interest following the debtor’s petition for bankruptcy.  The court indicated this case was inapplicable because §502 expressly disallows claims for unmatured interest, but it does not expressly disallow claims for attorney’s fees.[16]

            The court next responded to Faison’s argument under §506.  It indicated that his negative inference was inappropriate.  Although this section speaks to recovery of fees under a secured claim, it simply does not speak to allowing or disallowing similar recovery for unsecured claims.[17]  This section should be used primarily for determining whether certain types of claims are secured or unsecured, not for deciding whether certain claims are permitted or prohibited.[18] 

            Lastly, the court addressed Faison’s argument that allowing this kind of unsecured claim for an otherwise secured creditor would create bad policy.  The court stated that the Bankruptcy Code’s lack of specific disallowance on the issue indicates Congress did not believe allowing such claims would be unfair.[19]  Similarly, the court further indicated that this claim did not come unjustly at the expense of other unsecured creditors.  The claim might impair their recovery of principal loans, but by disallowing SummitBridge’s claim, the court would effectively be protecting unsecured creditors at the expense of an under-secured creditor, upsetting the necessary hierarchy of repayment.[20]  Ultimately, the court joined the Second and Ninth Circuits to reverse the finding of the district bankruptcy court and remand for further proceedings.[21]

Conclusion

            The Fourth Circuit joined other courts in finding that a creditor can sue for fees incurred post-petition so long as the creditor’s right to sue for those fees was established pre-petition.  This holding protects contractual rights of creditors even during a debtor’s bankruptcy filing, where many rights of creditors can be suspended.


[1] SummitBridge Nat’l Invs III, LLC v. Ollie William Faison, 2019 U.S. App. LEXIS 3967, at *1, 2 (4th Cir. 2019).

[2] Id.

[3] Id. at *3.

[4] Id.

[5] Id.

[6] Id. at *4.

[7] Id. at *7.

[8] Id.

[9] Id. at *11.

[10] Id. at *15.

[11] Id.

[12] Id. at *17.

[13] Id. at *8.

[14] Id. at *9.

[15] Id. at *10–11.

[16] Id. at *14–15.

[17] Id. at *12.

[18] Id. at *13.

[19] Id. at *16.

[20] Id. at *17.

[21] Id. at *19.

By Thomas Cain and Noah Hock

Wood v. Arnold

In this civil case, Appellant Wood claimed teaching and assessment materials from a high school world history class violated her First Amendment rights under either the Establishment Clause or the Free Speech Clause.  At issue were a statement comparing Islamic and Christian faiths and a worksheet requiring Wood to demonstrate her knowledge of some of the tenets of Islam.  Considering the challenged materials within the context of the world history curriculum, the Fourth Circuit found the materials did not violate the Establishment Clause because they did not impermissibly endorse any religion and did not violate the Free Speech Clause because they did not compel Wood to profess any religious belief.  As such, the Fourth Circuit affirmed the District Court’s ruling granting summary judgment in favor of the defendants.

Rodriguez-Arias v. Whitaker

In this case, Petitioner Rodriguez-Arias sought review of the final order of the Board of Immigration Appeals (BIA) which denied his claim for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  The Fourth Circuit joined the Ninth and Third circuits in holding that when deciding a CAT case, the risks of torture from all sources should be combined when determining whether a CAT applicant is more likely than not to be tortured in a particular country.  The Court held that the BIA failed to properly aggregate the risks of torture and failed to meaningfully engage with the documentary and additional evidence about the risk of torture that Petitioner faces in El Salvador.  Thus, the Court vacated the BIA’s order and remanded the case for further proceedings consistent with this opinion.

Norfolk Southern Railway Company v. City of Roanoke

In this civil case, Appellant Norfolk Southern Railway sought review of the district court’s order granting summary judgment for the City of Roanoke on Appellant’s claims of discriminatory taxation in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act).  The case hinged on the characterization of the “stormwater management charge” as either a tax or a fee.  After weighing the relevant factors, the Fourth Circuit ultimately held that the charge was a fee, as it was more so a part of a regulatory scheme with the purpose whose purpose is to remedy the environmental harms and to hold stormwater dischargers responsible.  Thus, the Fourth Circuit affirmed the district court’s decision granting summary judgement for the defendants because only taxes are subject to challenge under the 4-R Act.

Photo by Airman 1st Class Aspen Reid.

By Henry O. Hilston

The Honorable William W. Wilkins, who goes by Billy in legal circles, was born in 1942 in Anderson, South Carolina.[1]  He grew up in Greenville, South Carolina, where his father worked as an attorney.[2]  He enjoyed watching his father try cases in the county courthouse, which led to his childhood resolve to become an attorney in the future.[3]  He went on to get a B.A. from Davidson college in 1964, and then he immediately went to law school at the University of South Carolina, graduating with a J.D. in 1967.[4]  That same year, Wilkins entered the military.  He served two years on active duty in the Army, attaining the rank of captain.[5]  In 1969, he rotated to the U.S. Army Reserves, serving from 1969­­-83 and rising to the rank of Lieutenant Colonel.[6]

Upon leaving active service in the Army, Wilkins’ legal career began in full.  From 1969-70, he clerked for Clement Haynsworth, who was then the Chief Judge for the Fourth Circuit Court of Appeals.[7]  After that term, he served as a legal assistant to Strom Thurmond, United States Senator, from 1970-71.[8]  Wilkins then entered private practice in Greenville, South Carolina.[9]  From 1974-81, concurrent with his private practice, he also served as the Solicitor (District Attorney) of the 13th Judicial Circuit of South Carolina.[10]

On July 9, 1981, President Ronald Reagan nominated Wilkins to a seat on the United States District Court for the District of South Carolina that Robert W. Hemphill had vacated; the Senate confirmed his appointment on July 20, 1981.[11]  Judge Wilkins was President Reagan’s first federal judicial appointment.[12]  Wilkins did not spend long at the District Court level.  On June 2, 1986, President Reagan elevated Judge Wilkins to the Fourth Circuit where he would fill a seat vacated by Emory M. Sneeden, and the Senate confirmed his elevation on June 13, 1986.[13]  From 2003-2007, he served as Chief Justice of the Fourth Circuit and was a member of the Judicial Conference of the United States.[14]  He kept that position until July 1, 2007, when he chose to assume senior status.  His service was officially terminated in 2008 because of his retirement.[15]

Those accomplishments by themselves cut an impressive figure.  Concurrent with his district and appellate court service, however, Wilkins also served as the first chairman of the United States Sentencing Commission from 1985-94.[16]  Under Wilkins’ guidance, the Commission developed and promulgated sentencing guidelines for the federal judicial system.  Before that reform, there was little uniformity in federal sentencing, arguably because there was too much discretion available to judges.[17]  Speaking to the House Judiciary after the first release of the structured sentencing guidelines, he stated that the goal was not to make something “perfect” but rather something that would “bring greater certainty and fairness” to sentencing in federal court.[18]  Wilkins left his mark on the federal judicial system in more ways than serving as a judge.

Wilkins’ concurrent service on the Commission helps elucidate some of the opinions that he authored during his tenure on the Fourth Circuit.  In United States v. Hughes, for instance, Wilkins penned the majority opinion that held, among other things, that it was plain error for a district court judge to impose a sentence based on judge-found facts in excess of the maximum allowed based on the facts found by the jury.[19]  Likewise, in United States v. White, Wilkins wrote the majority opinion, holding that a district court committed plain error in treating the sentencing guidelines as mandatory, but that such treatment did not affect the defendant’s substantial rights.[20]  These two opinions show how Wilkins continued to rein in judicial discretion in sentencing, while simultaneously permitting some latitude to judges in how they handle that critical phase of adjudication.

Of course, Judge Wilkins is not the type of person to remain still for long.  After retiring from the Fourth Circuit, he has returned to private practice and is currently employed by Nexsen Pruet at the Greenville office.[21]  He leads the firm’s White-Collar Criminal Defense, Shareholder Litigation/Corporate Compliance, and Appellate Advocacy practices.[22]  This work keeps Wilkins in the courtroom, though he is now back on the side opposite the bench where he first began his legal career.


[1] Wilkins, William Walter, Fed. Jud. Ctr., https://www.fjc.gov/history/judges/wilkins-william-walter (last visited Feb. 11, 2019).

[2] Greenville Journal Staff, The Life and Trials of William Walter Wilkins, Greenville J. (May 27, 2011), https://greenvillejournal.com/2011/05/27/the-life-and-trials-of-william-walter-wilkins/.

[3] Id.

[4] Wilkins, William Walter, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] William W. Wilkins, Nexsen Pruet, https://www.m.nexsenpruet.com/professionals/william-wilkins (last visited Feb. 11, 2019).

[13]Wilkins, William Walter, supra note 1.

[14] Id.

[15] Id.

[16] Brent E. Newton & Dawinder S. Sidhu, The History of the Original United States Sentencing Commission, 1985—1987, 45 Hofstra L. Rev. 1167, 1188 (2017).

[17] Id. at 1169-70.

[18] Id. at 1302.

[19] 401 F.3d 540 (4th Cir. 2005).

[20] 405 F.3d 208 (4th Cir. 2005).

[21] William W. Wilkins, supra note 12.

[22] Id.

By Ryan Meier & Jacqueline Canzoneri

Judge James Harvie Wilkinson III—better known as J. Harvie Wilkinson—was born on September 29, 1944 in New York City. He spent his early years in Richmond but attended boarding school in New Jersey before earning his undergraduate degree with honors from Yale University in 1967.[1] Shortly after, Judge Wilkinson moved back to the South and served in the U.S. Army from 1968 to 1969 before earning his Juris Doctor degree from the University of Virginia School of Law in 1972. After graduating from law school, Wilkinson spent a year as a clerk for Supreme Court Justice Lewis F. Powell, Jr.[2] He then worked as an associate professor at the University of Virginia Law School, where he would later earn full professor status, as well as briefly serving as the editorial page editor for the Norfolk Virginian-Pilot—a local newspaper in Virginia.[3] Judge Wilkinson would go on to become Deputy Assistant U.S. Attorney General in the Justice Department’s Civil Rights Division until 1983.[4]

On January 30, 1984, President Ronald Reagan nominated Wilkinson to fill a seat on the United States Court of Appeals for the Fourth Circuit vacated by Judge John D. Butzner Jr.[5] Judge Wilkinson was confirmed by the Senate and received commission on August 13, 1984.[6] His judicial record is regarded as consistently conservative. In his over 30 years of service as a federal judge, Judge Wilkinson had the opportunity to rule on a wide variety of cases. In one of his most notable cases, Richmond Medical Center for Women v. Hicks,[7] Judge Wilkinson wrote a concurring opinion upholding a controversial partial birth abortion ban in Virginia. Wilkinson expressed his disapproval of partial birth abortions, describing the procedure as gruesome and stating that such measures are “not something this good land should seek to constitutionalize.”[8] In the early 2000’s, Judge Wilkinson wrote the majority opinion in United States v. Al-Hamdi, a contentious case regarding the United States’ authority to indefinitely detain an American citizen captured during an invasion in Afghanistan.[9] In the opinion, Judge Wilkinson upheld the constitutionality of the indefinite detainment and expressed a deference to the defense branch in wartime conduct. The decision was appealed to the United States Supreme Court and was ultimately overturned.[10] From 1996 to 2003, Judge Wilkinson served as Chief Judge of the Fourth Circuit.[11]

Shortly thereafter, a vacancy on the Supreme Court created by retiring Justice Sandra Day O’Connor led President George W. Bush to consider Judge Wilkinson for the nomination.[12] Though he was a strong candidate for the position, Judge Wilkinson was passed over in favor of current Chief Justice of the Supreme Court John Roberts.[13] On his own consideration and the Roberts nomination, Wilkinson said, “I was given a good shot, and you just can’t find a better person or a better judge than John Roberts.”[14]     

In addition to his work on the federal bench, Wilkinson is also an avid writer. To date, Wilkinson has written six books: Harry Byrd and The Changing Face of Virginia Politics, 1945–1966; Serving Justice: A Supreme Court Clerk’s View; From Brown to Bakke: The Supreme Court and School Integration, 1954–1978; One Nation Indivisible: How Ethnic Separatism Threatens America; Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance; and All Falling Faiths: Reflections on the Promises and Failure of the 1960s.[15]

Over his long tenure on the Fourth Circuit, Judge Wilkinson has become a well-respected member of the judiciary. Rodney A. Smolla, Dean of the University of Richmond School of Law, describes Wilkinson as “highly respected within the 4th Circuit and nationally . . . He has an extremely personable and gregarious personality.” Judge Wilkinson, now entering his 35th year on the federal bench, continues to be an influential advocate within the federal court system, emphasizing the removal of personal attachment to cases, and asserting “the authority [judges] have, derives from loyalty to the rule of law not from personal political views, and we need to resist the temptation of supplanting our own views and interpretations.”[16]


[1] Judges of the Court, U.S. Court of Appeals for the Fourth Circuit,http://www.ca4.uscourts.gov/judges/judges-of-the-court/judge-j-harvie-wilkinson-iii (last visited Jan. 29, 2019).

[2] Robyn Hagan Cain, 5 Things to Know About Judge J. Harvie Wilkinson III, FindLaw (Sept. 12, 2012, 3:12 PM), https://blogs.findlaw.com/fourth_circuit/2012/09/5-things-to-know-about-judge-j-harvie-wilkinson-iii.html.

[3] Who is J. Harvie Wilkinson III?, ABC News (Oct. 2005), https://abcnews.go.com/Politics/SupremeCourt/story?id=1257307.

[4] A Nation Mesmerized and Seduced: Judge J. Harvie Wilkinson III ’72 on “Cosmic Constitutional Theory”, UVA Lawyer (2013), https://www.law.virginia.edu/static/uvalawyer/html/alumni/uvalawyer/f13/wilkinson.htm.

[5] Judges of the Court, supra note 1.

[6] Id.

[7] 422 F.3d 160 (4th Cir. 2005).

[8] Id. at 162.

[9] 356 F.3d 564 (4th Cir. 2004).

[10] Who is J. Harvie Wilkinson III?, supra note 3.

[11] Id.

[12] Elisabeth Bumiller, Court in Transition: The President; An Interview By, Not With, The President, N.Y. Times (July 21, 2005), https://www.nytimes.com/2005/07/21/us/front%20page/court-in-transition-the-president-an-interview-by-not-with.html.

[13] Id.

[14] Id.

[15] Books by J. Harvie Wilkinson III, Thirftbooks, https://www.thriftbooks.com/a/j-harvie-wilkinson-iii/751777/ (last visited Jan. 29, 2019).

[16] All Falling Faiths, C-Span: Wash. Journal (Feb. 11, 2017), https://www.c-span.org/video/?423742-6/washington-journal-judge-harvie-wilkinson-iii-discusses-all-falling-faiths