Federal Judge Terrence Boyle Unfit for Promotion to Appeals Court

Endnotes

1 Letter from Senator John Edwards to Senator Orrin Hatch, March 31, 2003.
2 A complete review of all Judge Boyle’s record is not possible because he has not produced the many unpublished opinions he has issued over his twenty years on the bench. This significant body of material should be reviewed by the Senate Judiciary Committee, particularly in light of his record of reversals as discussed below.
3 A copy of this letter is available from People For the American Way.
4 Boyle’s Answers 6 and 17 to Senate Judiciary Committee Questionnaire, 108th Congress.
5 Ans. 6 to Judiciary Committee Questionnaire, 108th Congress.
6 Almanac of the Federal Judiciary, Volume 1, 2002, 4th Circuit p. 23, quoting a UPI report.
7 "Dems Won’t Rush on Some Judges," CBS News, Nov. 12, 2001, available at www.cbsnews.com/stories/2001/11/12/politics/main317680.shtml
8 Id.
9 The seat to which Boyle has now been nominated has been designated a “judicial emergency” by the Administration. See Department of Justice website at http://www.usdoj.gov/olp/nominations.htm.
10 Ans. 15(2) to Judiciary Committee Questionnaire, 108th Congress.
11 Ans. 15(2) to Judiciary Committee Questionnaire, 107th Congress. Alluding to his long tenure is not the only way Boyle has attempted to mitigate his extraordinarily high rate of reversals. In summarizing the Fourth Circuit and Supreme Court opinions reversing his decisions in Ans. 15(2) to his 2003 Judiciary Committee Questionnaire, Boyle has, in a few instances, given what appear to be misleading descriptions of the circumstances under which he was reversed. For example, in U.S. v. Arrington, 1998 U.S. App. LEXIS 17088 (4th Cir. 1998), Boyle claims a habeas petition was simply remanded to the circuit court to “determine whether the . . . [criminal sentencing guideline] enhancement . . . applies,” when, in fact, the Fourth Circuit found Boyle had committed a “clear error of law” and abused his discretion in dismissing a motion for reconsideration and vacated and remanded the case for further proceedings consistent with its holding. See infra note 27. For other examples, see Ellis v. North Carolina, note 33, and Cromartie v. Hunt, note 34.
12 Ans. 15(2) to Judiciary Committee Questionnaire, 108th Congress.
13 Id.
14 Id.
15 Table B-5, U.S. Courts of Appeals – Appeals Terminated on the Merits, by Circuit. Tables for the years 1992 – 2002, available from the Administrative Office of the United States Courts.
16 Id.
17 Nominees’ reversals per year were determined by dividing the nominees’ total number of reversed decisions (as reported in his or her answer to 15(2) (alternately listed as 15(b)) in the Senate Judiciary Committee) by the number of years the nominee had served on the district court. The nominee with the next highest reversal rate was Judge Edward Prado, who as a district court judge was reversed, on average, 3.5 times a year. Due to the phrasing of the question, some nominees included appellate opinions that affirmed the nominee’s rulings in their entirety but also contained a dissent, while others only included affirmed cases when the appellate opinion contained significant criticism of the nominee’s jurisprudence and affirmed the nominee’s ruling in result only. It should be noted that, because it does not appear that Judge Boyle listed any appellate decisions critical only in their dissents, removing such decisions from the calculations of the other nominees’ reversal rates would only have the effect of lowering several of those nominees’ reversal rates, thus making Judge Boyle’s reversal rate appear even higher by comparison.
18 American Bar Association’s Standing Committee on the Federal Judiciary, "Ratings of Article III Judicial Nominees," 107th and 108th Congress, available at http://www.abanet.org.
19 Based on a comparison of exact case names, the two questionnaires had only 57 cases in common. However, in his 2003 questionnaire, Boyle apparently combined both the cases of Easley v. Cromartie and Hunt v. Cromartie into a single entry entitled Cromartie v. Hunt. In his 2005 questionnaire, he more accurately listed the cases separately. Assuming that both Easley v. Cromartie and Hunt v. Cromartie are considered as listed in both questionnaires, it brings the total number of cases in common to 59.
20 This number was derived by multiplying 12,000 by 10% to find the total number of Boyle cases to have been appealed according to his 2005 questionnaire, then dividing the number of Boyle cases that have been reversed by that number.
21 Table B-5, U.S. Courts of Appeals – Appeals Terminated on the Merits, by Circuit. Tables for the years 1992 – 2004, available from the Administrative Office of the United States Courts.
22 Other elements of his questionnaire appear to support the latter conclusion. As discussed in more detail at notes 11, 27, 33, and 34, several of the descriptions Boyle offers of the circumstances surrounding his reversals appear to be misleading attempts to mitigate the degree of error he committed in the decisions for which he was reversed.
23 U.S. v. Garrison, CR-94-138-MU (W.D.N.C. 1996), rev’d, 1996 U.S. App. LEXIS 5827 (4th Cir. 1996); U.S. v. Adams, 2001 U.S. App. LEXIS 14572 (4th Cir. 2001); U.S. v. Williams, 2002 U.S. App. LEXIS 696 (2002); U.S. v. Arrington, 1998 U.S. App. LEXIS 17088 (4th Cir. 1998); and U.S. v. Livingston, 1994 U.S. App. LEXIS 6435 (4th Cir. 1994). Throughout this report, the Fourth Circuit opinion alone will be cited where the unpublished opinion Boyle authored in the case has not been produced. These and other unpublished opinions should be produced and reviewed by the Senate Judiciary Committee.
24 Pierce v. Jones, CA-94-68-5-BO (E.D.N.C. 1995) and Hayes v. Grimmer, 1996 U.S. App. LEXIS 32912 (4th Cir. 1996).
25 U.S. v. Phalan, 2002 U.S. App. LEXIS 6805 (4th Cir. 2002) and U.S. v. Geano, 2002 U.S. App. LEXIS 6805 (4th Cir. 2002).
26 In making the point that, even when it intends to depart from the guideline sentence, the court is obligated to first determine the proper guideline sentence, the court cited its previous reversal of Boyle in United States v. Talbot, 902 F.2d 1129 (4th Cir. 1990), as the relevant precedent. In that case, the appeals court vacated defendant’s forty-five year sentence after finding that Boyle had improperly sentenced the defendant to consecutive sentences for possession and non-registration of two pipe bombs and incorrectly classified the defendant as a “career criminal” for the purpose of determining the proper sentencing guidelines.
27 Despite the Fourth Circuit’s finding that Boyle had committed “clear error” and had “abused [his] discretion” in dismissing Arrington’s motion for reconsideration after he was convicted for “using” a firearm in the case at hand, Boyle stated in his 2003 Senate Judiciary Questionnaire that the Fourth Circuit had simply “remanded for review . . . to determine whether the firearm enhancement . . . applies.”
28 In light of the recent Supreme Court decision ruling that the mandatory use of the federal sentencing guidelines is unconstitutional (United States v. Booker, 2005 U.S. LEXIS 628 (2005)), it is important to clarify that the discussion here does not depend upon the validity of the sentencing guidelines themselves. Rather, this section is intended to demonstrate Boyle’s clear failure to follow the then-established law concerning the guidelines.
29 18 U.S.C.A. § 13 (West 2000).
30 Among the facts relied on by the United States in support of its case were that, at eight percent, the North Carolina Department of Corrections had the smallest percentage of female correctional officers in the nation, 180 F.3d 574, 578, and a statistical analysis that showed that over a ten year period, 618 more females would have been hired as correctional officers had the hiring been gender-neutral. 914 F. Supp. 1267, 1268
31 Earlier in the opinion, Boyle also stated that “discrimination is an inherently intentional activity” and “[the] concept of ‘unintentional discrimination’ is logically impossible.” Id. at 1265.
32 See, 42 U.S.C. § 2000e-2(k)(1)(A) (2004); Griggs v. Duke Power, 401 U.S. 424 (1971); Thomas v. Washington County School Board, 915 F.2d 922 (4th Cir. 1990) and Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003). In his opinion, Boyle claimed that Griggs had been overruled “sub silentio” despite the fact that the Fourth Circuit has explicitly relied on Griggs, in Thomas and Peters, both before and after Boyle’s opinion. 914 F.Supp. at 265.
33 In both his 2003 and his 2005 Senate Judiciary Questionnaires, Boyle claims he actually dismissed Ellis’ “common law tort claims” against the state and that “[e]ven though there are no Title VII claims against the state, the Court of Appeals commented that the Eleventh Amendment immunity is abrogated under Title VII in suits against the state.” This starkly contrasts with the characterization of Boyle’s ruling offered in the Fourth Circuit’s opinion, which makes no mention of “common law tort claims” and specifically states that Boyle failed to recognize the state did not have immunity to “[Ellis’s] Title VII suit.” Because Boyle’s unpublished opinion in the case has not been released, it is impossible to determine which characterization of his opinion is correct. Ans. 15(2), 2003 and 2005 Senate Judiciary Questionnaires.
34 A finding of “clear error” was necessary to reverse Boyle in this appeal. The Court had to find that, given all the evidence, the Court is “left with the definite and firm conviction that a mistake has been committed.” U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). In his 2003 Senate Judiciary Committee questionnaire, Boyle described the Court’s action in the case, however, by saying “a majority of the Supreme Court substituted its determination of the facts and decided that based on the evidence, politics, rather than race, was the predominate factor used by the state in establishing the 12th Congressional District.” In fact, the Court actually found the district court had committed “clear error” in making its determination, not with misinterpreted evidence, but with insufficient evidence. In his 2005 questionnaire, Boyle described the Court’s actions more accurately, explaining that “[t]he Supreme Court reversed the trial court’s decision on the facts and the law.”
35 917 F. Supp. at 388.
36 Id. at 389.
37 Id. at 390.
38 Id. at 389.
39 Id. at 391.

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