RECORD AS A JUDGE SHOWS HIGH REVERSAL RATE, TROUBLING RULINGS ON INDIVIDUAL RIGHTS
A People For the American Way Analysis of Boyle’s Judicial Record
President Bush has made his third nomination of North Carolina District Court Judge Terrence Boyle to the United States Court of Appeals for the Fourth Circuit after Boyle failed to win confirmation in two previous Congresses. The attempt to elevate Boyle to the Circuit Court has generated significant concern and opposition. Boyle has been reversed frequently by the conservative Fourth Circuit, often for making the same legal errors for which he had been reversed previously. In fact, his record of reversals is worse than any other district court judge nominated by President Bush. As discussed below, moreover, Boyle has apparently attempted to obscure his troubling record of reversals in answers recently submitted under oath to the Senate Judiciary Committee.
In addition, Judge Boyle has used his position on the bench to issue opinions reflecting an extreme judicial philosophy that is seriously damaging to ordinary Americans on civil rights and other issues. For example, the Supreme Court has twice reversed Boyle in voting rights cases, including once in a unanimous opinion by Justice Clarence Thomas. In another case, Boyle actually suggested that a state should be allowed to discriminate against women in employment and thus violate federal anti-bias law because that law somehow conflicts with the state’s “culture.” And in yet another opinion criticized by the Fourth Circuit, Boyle suggested that working should not be considered a “major life activity” under the Americans with Disabilities Act, directly contradicting prior court precedent.
During Boyle’s previous nominations, then-Senator John Edwards of North Carolina, a member of the Senate Judiciary Committee and one of Judge Boyle’s home-state senators, raised very serious concerns about Judge Boyle’s record and opposed giving Boyle a lifetime position on the Court of Appeals. Senator Edwards shared his concerns about Judge Boyle’s record and his opposition to Boyle’s confirmation with both Senate Judiciary Chairman Orrin Hatch and the White House Counsel. Explaining the reason for his objections, Senator Edwards said:
As a North Carolina Senator, I am very familiar with [Boyle’s] record. Judge Boyle’s decisions have been reversed or vacated more than one hundred times. Two of these rulings were by the United States Supreme Court, one by a unanimous vote. Judge Boyle’s record on civil rights is particularly troubling. In numerous cases, he has inaccurately interpreted the law in a way that undercuts basic civil rights protections . . . As a member of your committee, as a Senator from North Carolina, as the Senator most familiar with Judge Boyle’s record, and as your colleague, I ask that you not proceed with this nomination . . .1
In fact, due largely to these serious concerns raised by Senator Edwards, Boyle’s nomination did not previously go forward. Despite these concerns, Boyle has been re-nominated and a hearing on his nomination has been scheduled for March 1, 2005.
People For the American Way has carefully reviewed Judge Boyle’s available record and we share the conclusion, reached by Senator Edwards and many others, that Boyle should not be confirmed.2 Our review of Boyle’s record has been guided by the important criteria for confirmation to the federal bench suggested by more than 200 law professors in a letter to the Senate Judiciary Committee in July 2001. As these professors explained, no federal judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the Senate’s co-equal role with the President in the confirmation process, nominees must demonstrate that they meet the appropriate criteria. These criteria include “an exemplary record in the law,” a “commitment to protecting the rights of ordinary Americans and [not placing] the interests of the powerful over those of individual citizens,” a “record of commitment to the progress made on civil rights, women’s rights and individual liberties,” and a “respect for the constitutional role Congress plays in promoting these rights and health and safety protections, and ensuring recourse when these rights are breached.”3
Judge Boyle’s record during his 20 years as a United States District Court Judge in the Eastern District of North Carolina demonstrates that he does not satisfy the important criteria for confirmation that should be demanded of a federal appellate court nominee. Because the Supreme Court hears so few cases, the federal courts of appeal are in reality the courts of last resort for most Americans, and are crucial to preserving and protecting the rights, liberties, and interests that Americans hold dear. Judge Boyle’s record, however, demonstrates that his nomination is part of the Administration’s goal of packing the federal courts of appeals with right-wing ideologues who will turn back the clock on rights and interests critical to ordinary Americans. During his tenure as a district court judge, Boyle has already tried to turn back the clock by effectively overruling key federal laws and precedents that protect fundamental civil and constitutional rights. A lifetime appointment to the Court of Appeals would place him in an even more powerful position to jeopardize Americans’ rights for decades to come.
Terrence Boyle’s Background
Terrence Boyle was nominated to the United States District Court for the Eastern District of North Carolina in 1984 by President Reagan. Prior to becoming a judge, Boyle spent ten years in private practice with the Elizabeth City, North Carolina firm of LeRoy, Wells, Shaw, Hornthal & Riley, handling a variety of matters, including civil and criminal litigation in state and federal court.4
Earlier in his career, Boyle spent several years serving on Capitol Hill, first as Minority Counsel to the Housing Subcommittee of the U.S. House of Representatives Banking and Currency Committee from 1970 to 1973, then as a Legislative Assistant to Senator Jesse Helms in 1973.5 Years later, Senator Helms actively supported Boyle’s nomination to the District Court. In a letter to President Reagan concerning the nomination, Senator Helms assured the President that, “[Mr. Boyle] wholeheartedly shares your deeply held views on the proper role of the federal judiciary in our system of government.”6
Judge Boyle was previously nominated to the Fourth Circuit by former President George H.W. Bush in 1991.7 Serious concerns were raised about Boyle’s record and, while less controversial nominees were approved in 1991–92, Boyle failed to win confirmation. According to reports, Senator Helms proceeded during the Clinton Administration to block almost all of President Clinton’s nominees from North Carolina,8 creating many long-standing vacancies in that state and bringing about the “judicial emergency” that some say now justifies rapidly pushing through Boyle’s current nomination.9
Judge Boyle’s Record
Judge Boyle’s record is troubling in at least two distinct ways. First, he has been reversed frequently by the Fourth Circuit, one of the most conservative appeals courts in the entire country. In fact, he has been reversed considerably more frequently than has the average district court judge in the Fourth Circuit and around the country. He has also been reversed an average of more than twice as often per year as any other federal district court judge President Bush has nominated to the appellate bench. Such a high record of reversals, especially considering that Judge Boyle has frequently been reversed for making the same or similar errors, calls into question his ability as a jurist. And his apparent effort to obscure his record of reversals in his answers under oath to questions from the Senate Judiciary Committee, as detailed below, raises extremely serious concerns.
Second, Judge Boyle’s record reveals a troubling history of espousing a damaging neo-federalist philosophy from the bench that is particularly harmful to civil rights. He has been very aggressive in supporting “states’ rights” views in cases that criticize Congress’s authority to protect individuals from discrimination committed by state agencies. Moreover, a number of his decisions have been specifically hostile to civil rights, including with respect to cases brought by people with disabilities as well as in redistricting and race and sex discrimination cases, many of which have been reversed. And he has been reversed several times in important cases concerning campaign finance.
Judge Boyle’s Disturbing Record of Reversals
According to Judge Boyle’s answers to the Senate Judiciary Committee questionnaire in 2003 during the 108th Congress, his opinions had been “reversed, vacated or otherwise adversely determined” by the Fourth Circuit or the Supreme Court 139 times as of January 2003.10 In his earlier Judiciary Committee questionnaire, submitted in response to his 2001 nomination, Judge Boyle stated that, to put his large number of reversals “in perspective,” he has had a very long career as a judge.11 Boyle estimated that he had decided approximately 11,000 to 12,000 cases.12 He estimated that approximately 10% of his decisions have been appealed.13
As of 2003, even considering the large number of cases Boyle has decided in his career, Boyle still has a disproportionately high number of reversals. According to the data that Judge Boyle provided to the Judiciary Committee, Boyle has been reversed in approximately 12% of his decisions that have been appealed.14 By comparison, cases appealed to all the U.S. Courts of Appeal were reversed at an average of only 9.7% per year in the comparable years for which data are available.15During that same period, cases brought before the Fourth Circuit were reversed even more rarely, with approximately 7.5% of the Circuit’s district court opinions being reversed in a given year,16 making Boyle’s percentage of cases reversed unusually high within the Fourth Circuit.
Judge Boyle’s reversal statistics are also revealing when compared with the reversal statistics for the President’s other appeals court nominees who have served as district court judges. As of the time he submitted his 2003 questionnaire, Boyle had an average of 7.3 reversals per year. This average annual rate of reversal is the highest of any of the district court judges nominated by President Bush to the courts of appeals, and is more than twice as high as the next highest nominee.17 This is probably among the reasons why Boyle was given the lowest American Bar Association rating of any district court judge nominated for elevation to the Circuit court by Bush.18
As troubling as Boyle’s record appeared at the time he submitted his Senate Judiciary Questionnaire to the 108th Congress in 2003, the recent submission of an updated questionnaire to the 109th Congress raises even more cause for concern. When asked in his 2003 questionnaire to list “all appellate opinions where [his] decisions were reversed or where [his] judgment was affirmed with significant criticism of [his] substantive or procedural rulings” during his judicial career, Boyle listed 139 decisions. However, when asked the exact same question in his 2005 questionnaire, Boyle inexplicably listed only 68 decisions. Of these, only 59 had been listed in the 2003 questionnaire.19 Of the remaining nine, six were reversed after the 2003 questionnaire had been submitted, and three pre-dated the 2003 questionnaire but were left out of the 2003 questionnaire for unknown reasons. In addition, a preliminary search of the LEXIS legal database finds an additional eight cases in which Boyle was reversed since submitting his 2003 questionnaire that are not listed in his 2005 questionnaire.
Adding the reversals listed in the 2003 questionnaire to the reversals first listed in the 2005 questionnaire and the reversals found on the LEXIS legal database that are excluded from both questionnaires, it appears that in his nearly 21 years on the Eastern District of North Carolina bench, Boyle has been reversed at least 157 times. This would mean that Boyle has actually averaged not 7.3 reversals per year, but more than 7.45 reversals per year, making his true rate of reversal even more disturbing when compared to other district court judges President Bush has nominated to the courts of appeals. It also increases his total rate of reversal to approximately 13% of his decisions that have been appealed.20 Recalculating the average rates of reversal for the Circuit Courts to include statistics from 2003 and 2004, we find that Boyle’s rate of reversal is even worse compared to the average reversal rates of 9.59% for all Circuits and 7.29% in the Fourth Circuit.21
The extraordinary and unexplained difference between the number of cases Boyle concedes were “reversed or . . . affirmed with significant criticism” in his 2003 and 2005 questionnaires suggests, at best, an inability to consistently read and respond to identical questions while under oath. At worst, the difference sheds light on a convoluted effort to obscure his distressingly high rate of reversal.22 For example, in his 2005 questionnaire Boyle omitted at least five cases where the Fourth Circuit vacated and remanded his decisions because he committed a “plain error” of law.23 He left out at least two cases where the Fourth Circuit vacated and remanded Boyle’s opinions after he granted summary judgment to defendants pursuant to a magistrate judge’s recommendation without even considering the objections of plaintiffs.24 And he somehow excluded at least two cases where the Circuit reversed him for issuing sentences so obviously erroneous that even the government conceded Boyle was mistaken.25 The apparent attempt to cast his record in a more favorable light through his heavily edited new questionnaire has only given more force to concerns about his nomination.
Judge Boyle’s record of reversals is not only troubling because of the high, above-average numbers and attempts to mitigate them, but it is also disturbing because Boyle has been reversed repeatedly for committing “plain error” and other fundamental legal mistakes, as discussed below. The nature of the errors for which the Court of Appeals has found it necessary to overturn Judge Boyle’s rulings call into serious doubt his qualifications for a lifetime promotion to the appellate bench.
Judge Boyle has been reversed repeatedly for committing “plain error”
In criminal cases, the Fourth Circuit defines a “plain error” as one that is obvious, detrimentally affects the rights of the defendant, and is so egregious as to implicate the “fairness, integrity, or public reputation of judicial proceedings. . .” United States v. Bellamy, 264 F.3d 448, 445 (4th Cir. 2001), cert. denied, 543 U.S. 1143 (2002). This very strong language makes it clear that plain error is not a term used by the Circuit to describe harmless or justifiable mistakes. Rather, a plain error is one that clearly contradicts the law, compromises the rights of the defendant, and involves a serious lapse of judgment. In a number of cases, the conservative Fourth Circuit found that Boyle had committed “plain error,” usually harming an individual litigant’s rights.
One egregious instance in which Judge Boyle was reversed for committing plain error occurred in U.S. v. Garrison, CR-94-138-MU (W.D.N.C. 1996), rev’d, 1996 U.S. App. LEXIS 5827 (4th Cir.1996). As part of a plea agreement with a criminal defendant, the government agreed to request a downward departure from the sentencing guidelines. The government further agreed that any information learned from the defendant pursuant to the plea agreement would not be used in determining the guideline sentence. The government breached the agreement, however, by using evidence learned as a result of the plea agreement in drafting its presentence report. This improperly-included evidence resulted in a much higher guideline sentence than would have been calculated had the improper evidence not been used. It was from this higher guideline sentence that the government then asked Judge Boyle to depart.
When defense counsel objected to use of the presentence report, Judge Boyle forced the defendant to choose between having the objection resolved and imposition of the lighter sentence. Boyle told defense counsel, “I can either give him a guideline sentence, which I would be glad to do, or depart . . . You don’t get both, do you follow me?” 1996 U.S. App. LEXIS 5827 at 4 (4th Cir.1996). The Court of Appeals found that forcing the defendant to chose between resolution of his objections to the presentence report and receiving the downward departure constituted “plain error,” and the sentence was vacated and remanded. Id. at 9.26
In U.S. v. Adams, 2001 U.S. App. LEXIS 14572 (4th Cir. 2001), the Fourth Circuit held that Judge Boyle had committed “plain error” twice in the same case. First, he ordered the defendant, who was convicted of videocassette piracy, to pay restitution to the copyright holders, despite the fact that the defendant’s illegal videocassettes had been seized before he had the opportunity to sell any of the videos. The Fourth Circuit cited a number of cases, including Fourth Circuit precedent (Walker v. Forbes, Inc., 28 F.3d 409, 411-12 (4th Cir. 1994)) and a United States Supreme Court decision (Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 567 (1985)), in explaining that restitution is not a proper remedy when the copyright infringer has made no profit and his victims have suffered no diminution in the values of their copyrights. Id. at 3-4.
The second plain error in the Adams case resulted from Judge Boyle’s order foreclosing the defendant’s eligibility for federal benefits for a period of five years. Id. at 5. The Fourth Circuit explained that the statute allowing foreclosure of federal benefits is only applicable to drug traffickers and possessors. Id. Indeed, as the Court of Appeals noted, the statute is actually entitled “Denial of Federal benefits to drug traffickers and possessors,” making it obvious that copyright infringers are not among the class of criminals to which the statute applies. Id. Notwithstanding President Bush’s frequent claim that he wants to appoint judges who will interpret and not make the law, this is clearly an example of Judge Boyle seeking to, in effect, rewrite a specific federal statute. The court of appeals held that Judge Boyle’s application of the statute to a copyright infringer constituted a “plain error,” and vacated and remanded the case. Id. at 5-6.
Other cases in which the Court of Appeals held that Judge Boyle had committed “plain error” include:
- U.S. v. Barry, 2002 U.S. App. LEXIS 23237 (4th Cir. 2002), in which the Fourth Circuit found that Judge Boyle erred in upwardly departing from the guideline sentence of 84 months, nearly tripling the sentence to 240 months, without giving the defendant any notice. In its decision, the Fourth Circuit chided Judge Boyle, saying that “apparently, the court believed there was no specific Guideline sentence for Barry’s handgun conviction and that Barry could be sentenced anywhere within the statutory range of seven years to life.” Id. at 7. The court pointed out that, in fact, there was a guideline sentence, making Boyle’s significant upward departure without notice or explanation a “plain error.” Id. at 7, 9. The Fourth Circuit remanded the case for re-sentencing. Id. at 11.
- U.S. v. Williams, 2002 U.S. App. LEXIS 696 (2002), in which the Fourth Circuit reversed a sentence imposed by Judge Boyle as “plain error,” id. at 13, because Boyle had wrongly departed upwardly in sentencing by miscalculating the defendant’s offense level for sentencing purposes. The Fourth Circuit pointedly stated that “[n]o court of justice would require a man to serve . . . undeserved years in prison when it knows the sentence is improper.” Id. at 25 (quoting U.S. v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996)).
- U.S. v. Corbett, 1998 U.S. App. LEXIS 999 (4th Cir. 1998), in which the Fourth Circuit held that Judge Boyle had committed “plain error” by ordering a defendant to pay restitution without making any findings regarding the defendant’s ability to pay. Id. at 5. In so ruling, the Court of Appeals cited two Fourth Circuit precedents (United States v. Molen, 9 F.3d 1084 (4th Cir. 1993) and United States v. Bruchey, 810 F.2d 456 (4th Cir. 1987)) making it clear that a district court must take into account a criminal defendant’s ability to pay before the court may order restitution. Id. at 6.
- U.S. v. Livingston, 1994 U.S. App. LEXIS 6435 (4th Cir. 1994), in which Judge Boyle was found to have committed plain error when he enhanced a guideline sentence he imposed on a convicted defendant who had made a death threat during an armed robbery. The guidelines expressly state that when the defendant has used a gun in a robbery, the sentence cannot be enhanced for making a verbal death threat. United States Sentencing Commission, Guidelines Manual (Nov. 1992), guideline 2B3.1(b)(2)(A-F). In this case, the government itself expressly conceded that the sentence imposed by Judge Boyle was “plain error,” and the Fourth Circuit reversed. 1994 U.S. App. LEXIS 6435 at 2.
- U.S. v. Arrington, 1998 U.S. App. LEXIS 17088 (4th Cir. 1998), in which Judge Boyle was criticized by the Fourth Circuit for committing a “clear error” and abusing his discretion in denying a motion for reconsideration brought by a man who was sentenced for “using” a firearm during the commission of a drug-related crime, even though the weapon had not actually been used. As the appellate court pointed out, Supreme Court precedent plainly requires that in order for a defendant to be convicted for “using” a firearm in a drug crime, “active employment” of the weapon must have occurred. Bailey v. U.S, 516 U.S. 137, 144 (1995). The Supreme Court has described “active employment” as “brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire a firearm.” Id. at 148. However, Judge Boyle determined in Arrington that it was sufficient that the accused personally knew firearms were available to him at the scene to protect and embolden him. The Fourth Circuit rejected Boyle’s holding and found it to be a “clear error of law.” 1998 U.S. App. LEXIS 17088 at 5. The Fourth Circuit also concluded that “the [district] court abused its discretion” in denying Arrington’s motion for reconsideration. Id.27
- U.S. v. Hanno, 21 F.3d 42 (4th Cir. 1994), in which the Fourth Circuit found Boyle erred when he empanelled a jury to hear Hanno’s trial and then, before the trial began, removed six jurors from the Hanno jury, presumably to put them on another case, without notice to Hanno’s counsel or an opportunity for counsel or Hanno to be present during this action. The court, finding “plain error,” vacated the sentence and remanded for a new trial. Id. at 49.
Judge Boyle has been reversed frequently for making the same mistakes for which he has already been reversed
In addition to being reversed repeatedly for committing plain error, Judge Boyle has also been reversed frequently for making the same or similar errors for which he had previously been reversed on appeal. This suggests, at best, an inability to learn from past mistakes and, at worst, an ideology so strong that it outweighs precedent and established law. Repetitive reversals of Judge Boyle’s rulings are particularly evident with respect to criminal sentencing, improperly granting summary judgment, and ignoring the plaintiffs’ arguments before dismissing cases.
Criminal Sentencing
One of the legal errors for which Judge Boyle has frequently been reversed is departing improperly or otherwise misapplying the sentencing guidelines applicable to criminal defendants.28 Among the many instances of such reversals, in addition to those discussed above, two cases in particular stand out: U.S. v. Genao, 2000 U.S. App. LEXIS 8764 (4th Cir. 2000), and U.S. v. Phalan, 2002 U.S. App. LEXIS 6805 (4th Cir. 2002). In these cases, Judge Boyle’s departures were so obviously erroneous that even the government admitted that Boyle was mistaken and asked the Fourth Circuit to reduce the convicted defendant’s sentence.
In Genao, Boyle failed to grant the defendant credit for time served in another jurisdiction on a charge that was taken into consideration in determining the defendant’s offense level in the current case. 2000 U.S. App. LEXIS 8764 (4th Cir. 2000). This contradicted the clear requirements of United States Sentencing Guideline § 5G1.3(b), and the government agreed that the sentence needed to be adjusted in accordance with the guidelines. 2000 U.S. App. LEXIS 8764 at 2. The Fourth Circuit vacated the sentence and remanded it to the District Court for re-sentencing. Id.
In Phalan, the defendant was convicted of indecent exposure, a violation of a North Carolina statute that was assimilated by the federal Assimilative Crimes Act,29 and for which the maximum sentence available was one year’s probation. Nonetheless, Judge Boyle sentenced the defendant to two years’ probation. 2002 U.S. App. LEXIS 6805 (4th Cir. 2002). Again, the sentence was so clearly erroneous that even the government agreed Boyle had erred. As the Fourth Circuit recounted in vacating the sentence, “[t]he government agree[d] that the two-year term of probation imposed by the district court exceeded the statutory maximum . . . and request[ed] the sentence be vacated and the case remanded for re-sentencing.” Id. at 3.
A third case of note is the recent decision in United States v. Ruffin, 2004 U.S. App. LEXIS 25223 (2004), in which the sentence handed down by Boyle was so convoluted that the Fourth Circuit remanded it back to his court for clarification. In that case, because the defendant had provided substantial assistance to the government, the prosecution had filed a motion for a substantial assistance departure below the guideline range and mandatory minimum sentence of 180-210 months. Boyle granted the departure, but then issued an oral sentence of 188 months and a written sentence of 180 months. The sentences were not only contradictory, but neither reflected the agreed upon departure below the guideline range. Due to the “irreconcilable inconsistencies both in the oral sentence and the written judgment,” id. at 1, the Fourth Circuit remanded the case to the district court with instructions to “issue a new judgment order which is internally consistent and also consistent with the orally pronounced sentence.” Id. at 7.
Improper Summary Judgment Awards
The Fourth Circuit has reversed Judge Boyle repeatedly for violating the Federal Rules of Civil Procedure by failing to give parties proper notice and opportunity to respond when converting a motion to dismiss into a motion for summary judgment. Despite the clear requirement of Fed. R. Civ. P. 12(b) (reaffirmed by Fourth Circuit precedent, Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)) that a district court judge must give the parties notice of the transformation and an opportunity to respond, the Fourth Circuit has had to remind Boyle several times of this rule.
In Williams v. U.S., No. 4:96-CV-14-BO (E.D.N.C. 1998), Williams filed a motion to vacate, set aside, or correct his sentence. The government responded by filing a motion to dismiss or, in the alternative, a motion for summary judgment. Boyle granted the government summary judgment without providing Williams notice or an opportunity to respond to the summary judgment motion. The appeals court cited two Fourth Circuit precedents to illustrate the fact that “regardless of the merits, notice and opportunity to respond [are] required prior to summary judgment,” U.S. v. Williams, 1999 U.S. App. LEXIS 5126, 1-2 (4th Cir. 1999) (citing Roseboro and United States Dev. Corp. v. Peoples Fed. Sav. & Loan Ass’n, 873 F.2d 731, 736 (4th Cir. 1989) as precedent). The court granted a certificate of appealability, vacated Boyle’s order, and remanded the case to the district court. Id. at 2.
In Abdussamadi v. Vandiford, 5:98-HC-96-BO (E.D.N.C. 1998), the plaintiff filed a motion challenging the legality of a federal detainer lodged against him. After the government amended its motion to dismiss to include an affidavit, Judge Boyle decided to construe the government’s motion as a motion for summary judgment. Boyle then granted the motion for summary judgment without giving the petitioner any notice or chance to respond. Once again, the Fourth Circuit vacated and remanded the case, citing both Fed. R. Civ. P. 12(b) and Roseboro. Abdussamadi v. Vandiford, 1999 U.S. App. LEXIS 18663 at 2 (4th Cir. 1999).
In Lomas v. Red Storm Entertainment, No. 5:01-CV-237-BO(2) (E.D.N.C. 2001), Lomas brought suit against his employer when the employer offered him far less under a severance package than Lomas believed he was entitled to under a previous agreement with his employer. Boyle granted summary judgment to Red Storm. The appeals court found that Boyle had once again “failed to provide all parties a reasonable opportunity to present all material made pertinent to such a motion as required by Rule 12(b).” Lomas v. Red Storm Entertainment, 2002 U.S. App. LEXIS 22471, at 17 (4th Cir. 2002). The court also noted that because of “apparent ambiguity” in the employee agreement, there was a “genuine issue of material fact” in the case and “the parties should be accorded an opportunity to conduct any relevant discovery, and they should be permitted to present to the court any materials pertinent to the issue” before the district court entered its judgment. Id. Again the Fourth Circuit reversed Judge Boyle for violating the Federal Rules, and remanded the case. Id. at 18.
Ignoring A Party’s Objections to a Magistrate Judge’s Recommendations
Judge Boyle has been reversed at least twice for dismissing cases pursuant to a magistrate judge’s recommendation without first considering the objections of the plaintiff. In Pierce v. Jones, CA-94-68-5-BO (E.D.N.C. 1995), Judge Boyle granted summary judgment to the defendant based solely on the recommendation of the magistrate judge without considering the plaintiff’s timely objections to the magistrate’s report and recommendations. The Fourth Circuit reminded Judge Boyle that “the district court is obligated to review de novo those portions of the magistrate judge’s report to which objections are filed,” and vacated and remanded the case. 1996 U.S. App. LEXIS 50, 2 (4th Cir. 1996).
Less than a year after Judge Boyle’s decision in Pierce was vacated, the Fourth Circuit reversed Boyle again on the same grounds in Hayes v. Grimmer, 1996 U.S. App. LEXIS 32912 (4th Cir. 1996). In that case, as in Pierce, Boyle granted summary judgment to the defendant based on a magistrate judge’s recommendation without considering the plaintiff’s timely objections to the magistrate’s report.
Judge Boyle’s Disturbing “States’ Rights” and Anti-Civil Rights Record
As a district court judge, Boyle has compiled a troubling record of espousing strong views intended to promote “states’ rights” and limit federal authority to protect civil rights and other interests. He has been reversed twice by the United States Supreme Court for siding with white plaintiff voters in redistricting cases, including once in a unanimous opinion by Justice Clarence Thomas, and has sought to curb the rights of people with disabilities and other discrimination plaintiffs. He has also been reversed by the Supreme Court for seeking to invalidate a federal campaign finance law.
Hiring Discrimination and Discrimination Law
Refusing to enter a consent decree to remedy state hiring discrimination and advocating serious limits on discrimination law and deference to state “culture” in considering hiring discrimination claims.
United States v. North Carolina
One of Boyle’s most disturbing opinions was in United States v. North Carolina, 914 F.Supp. 1257 (E.D.N.C. 1996), rev’d 180 F.3d 574 (4th Cir. 1999), an employment discrimination case brought under Title VII by the United States against North Carolina. The United States charged that North Carolina had discriminated against women employed as correctional officers at men’s prisons and women who had sought such employment.30 The parties entered into a settlement agreement, subject to the court’s approval and entry of a consent decree, in which the state, while denying unlawful past discrimination, agreed to take certain remedial steps to increase the hiring and promotion of female correctional officers, as well as to provide compensation to women who were not hired or promoted due to their sex. Judge Boyle, who was harshly critical of the efforts by the United States to protect women from employment discrimination in this case, twice refused to approve the settlement agreement. The Fourth Circuit reversed, holding that Boyle’s refusal to enter the consent decree was an abuse of discretion.
In his first opinion refusing to approve the settlement, Judge Boyle was harshly critical of nearly every aspect of the proposed agreement, which he characterized as forcing the state to “submit to a wide array of expensive and intrusive mandates of unresolved value, necessity, and legality . . .” Id. at 1260. Boyle stated that “[w]ere this agreement properly before the Court, it would be flatly rejected.” Id. at 1263. However, Boyle concluded that he need not go this far since, in his opinion, the United States had failed to “establish a case or controversy sufficient to invoke the Court’s jurisdiction.” Id. Boyle found that the court did not have subject matter jurisdiction over the case because the United States did not have “reasonable cause” for bringing the action since there was “nothing to indicate in the claims of the identified alleged victims that the state has engaged in a pattern or practice of discrimination.” Id. at 1273.
Judge Boyle began by comparing Title VII cases to criminal prosecution:
Just as an accused is entitled to a prompt judicial hearing as to the existence of probable cause before being subjected to criminal prosecution, so too is a defendant facing the awesome power of the federal government in a Title VII context eventually entitled to a determination, as a preliminary matter, of whether reasonable cause might exist for prosecution of the claim.
Id. at 1264. Boyle then appeared to develop his own test for determining when the federal government can bring suit against a state in federal court, charging employment discrimination based on a disparate impact theory:
[I]n order to invoke the Court’s jurisdiction over an allegation of discrimination based upon disparate impact, there must be some case or controversy surrounding the government’s “reasonable belief” that the defendant has: 1) willfully and intentionally engaged in 2) an identifiable pattern or practice of resistance 3) intended to unlawfully discriminate, and 4) that this activity has actually caused an impact which is 5) visibly disparate from what must otherwise be the non-discriminatory norm.
Id. at 1267. According to Judge Boyle, “[n]one of the evidence . . . establishe[d] any of these elements.” Id. at 1267-68.
Boyle held that the first element “obviously missing” from the case was a “particular intentional discriminatory practice,” since the case was based on a statistical pattern of hiring discrepancies. Id. at 1268. According to Judge Boyle, because the government was unable to identify a specific employment practice that was harmful to women, there could be no claim of discrimination. Boyle held that “[w]ithout a specific demonstration of any particular practice, there can be no causation. Proceeding logically, there can be no effect without cause, no ‘impact’ absent ‘intentional practice.’” Id. at 1269.31
Boyle further concluded that the government had failed to establish what the “non-discriminatory norm” would be as it applied to the number of female prison guards in North Carolina. According to Judge Boyle, “the concept of disparity cannot exist without a reasonably established norm, and the norm cannot be simply some arbitrary quota or ideal.” Id. at 1272.
Finally, in explaining why the “non-discriminatory norm” with regard to North Carolina could not be determined, Boyle criticized the United States for attempting to force North Carolina to adhere to national standards of equal opportunity:
Our federal form of government prohibits finding any particular state to be guilty of having violated some federal law because its statistical abstract does not conform to what might be found in other states . . . Our form of government presumes that people in different states will act differently. Nothing is more offensive to the idea of federalism than the notion that the federal government will punish a state for having a non-conforming culture -–for being different from other states . . . Quite the contrary, federal law owes its existence to North Carolina’s absolute right to turn out differently than the other forty-nine states. The Constitution by which the original sovereigns, including North Carolina, created the federal government was ratified only on the understanding that a Bill of Rights would be adopted acknowledging the states’ and their peoples’ retention of sovereignty in all matters not explicitly ceded to the national government . . . It is most emphatically not the purpose of federal law to impose a uniformity of cultural outcome upon the individual states.
Id. at 1272-73.
Judge Boyle’s apparent suggestion that states can discriminate against a class of people whom Congress has protected under Title VII because of the state’s “culture” is a deeply troubling interpretation of states’ rights. The United States’ evidence in this case included not only proof that North Carolina had a smaller percentage of women employed as correctional officers than did any other state, but proof that stringent restrictions were placed on assignments that could be given to women, thereby limiting their opportunity for employment and promotion. Id. at 1268; United States v. North Carolina, 180 F.3d 574, 578 (4th Cir. 1999). It is disturbing for a federal judge to suggest that denying women employment opportunities is acceptable because the “culture” of a state discourages women from working in a given field.
In addition, Judge Boyle’s purported five-part test for federal discriminatory impact claims against state agencies clearly contradicts governing law and precedent and would seriously weaken federal protection against employment discrimination. As Congress and the courts have made clear, an employment practice that has a significant disparate impact on minorities that is not justified by business necessity is illegal under Title VII regardless of whether there is actual intent to discriminate.32As the Supreme Court made clear in its unanimous holding in Griggs, Title VII forbids “not only overt discrimination but also practices that are fair in form, but discriminatory in operation” and that “absence of discriminatory intent does not redeem” such practices. 401 U.S. at 431, 432. Yet Boyle claimed in North Carolina that the federal government must have a “reasonable belief” that a state agency had “intended to unlawfully discriminate” before it can invoke federal court jurisdiction in a disparate impact claim. 914 F.Supp. at 1267. Boyle’s extreme view would eviscerate Title VII, contrary to Court precedent and the will of Congress.
Judge Boyle refused to enter the consent degree and ordered the United States to show cause why the court should exercise subject matter jurisdiction in the case. He also gave North Carolina notice that it could withdraw its consent to the agreement and “resume a position adversary to that of” the United States. Id. at 1275.
The United States filed a brief in support of subject matter jurisdiction and, more than a year later, Judge Boyle entered an order effectively reversing himself and holding that the plaintiff “had pled a proper basis for the Court’s exercise of subject matter jurisdiction.” Order 5:93-CV-763-BO(1), March 11, 1998, at 5. (Nevertheless, the 1996 decision remained on the books and the 1998 decision was not published.) Shortly therafter, North Carolina filed a motion for leave to withdraw from the consent decree.
After the United States convinced Boyle that jurisdiction was appropriate, Boyle once again refused to approve the settlement agreement, issuing an order stating three reasons for again rejecting the settlement. First, Judge Boyle stated that, because the court had not previously approved the settlement, it was “merely an executory contract” that neither party was obligated to act under until the court approved it. Order 5:93-CV-763-BO(1), March 11, 1998, at 6. He also cited the state’s new desire to withdraw from the agreement. Id. at 7. Finally, he found that circumstances had substantially changed since the agreement was drafted. Id. at 6 – 7.
In particular, Judge Boyle noted that, since the suit began, the state had “taken an aggressive posture in the hiring, assignment, and promotional practices within the Department of Corrections with respect to women as employees” making “remedies fashioned at an earlier time . . . no longer responsive and relevant. . .” Id. Boyle also referenced recent North Carolina legislative action requiring the legislature to approve of any settlements in Title VII lawsuits brought against the Department of Corrections and requiring the Attorney General to issue an opinion on the advisability of the state’s entering into any settlement that required payment greater than $75,000. Id. at 7.
Judge Boyle concluded that, given these factors, “it would be unreasonable and an abuse of discretion for the Court to enforce an agreement that is no longer relevant to the conditions now existing.” Id. at 7. Having refused to approve the settlement agreement, Judge Boyle found the state’s motion for leave to withdraw from the agreement to be moot. Id. at 8.
The United States appealed and the Fourth Circuit reversed, holding that Judge Boyle’s “refusal to enter the consent decree constituted an abuse of discretion.” 180 F.3d 574 at 577. The Court of Appeals remanded the case to Judge Boyle with instructions to enter the consent decree, noting that, after the consent decree was entered, the parties were free to seek to have it modified if they still believed changed circumstances justified doing so. Id. at 582.
In its decision, the Fourth Circuit summarized the three factors Boyle had considered and held that “[n]one of these circumstances is a proper basis for refusal to enter the consent decree.” Id. at 581. The court held that the fact that the consent decree remained an executory contract until approved by the district court “has no conceivable impact on the fairness or adequacy of the agreement.” Id. The court also held that “a party’s change of heart regarding a settlement is not a valid basis upon which to refuse approval.” Id. Finally, the court held that neither of the “changed circumstances” cited by Boyle were reasonable grounds for refusing to enter the consent decree. Id. The Fourth Circuit noted that the Department of Corrections’ newly aggressive hiring and promotion of women did not address past wrongs or make the settlement’s remedial provisions “unfair,” and that the recent actions of the North Carolina legislature constituted no more than “procedural hurdles.” Id.
Boyle’s attempts to completely exempt state agencies from federal anti-discrimination laws
Federal law prohibiting employment discrimination
Ellis v. North Carolina
In Ellis, 2002 U.S. App. LEXIS 23717 (4th Cir. 2002), the Fourth Circuit reversed Boyle for apparently disregarding the fundamental principle that the Eleventh Amendment does not protect state defendants from suits challenging employment discrimination under the 1964 Civil Rights Act. In this case, Boyle dismissed plaintiff Betty Ellis’s claim of employment discrimination, holding that the Eleventh Amendment made North Carolina immune from the suit. In a brief per curiam opinion, the Fourth Circuit cited several Supreme Court precedents to illustrate the basic principle that in enacting Title VII, Congress properly abrogated the states’ Eleventh Amendment immunity. Fitzpatrick v. Bitzer, 427 U.S. 445, 456-7 (1976); Alden v. Maine, 527 U.S. 706, 755-57 (1999). The court vacated Boyle’s decision and remanded for further proceedings. 2002 U.S. App. LEXIS 23717 (4th Cir. 2002). Boyle’s ruling would have contradicted decades of precedent and allowed state agencies to blatantly violate fundamental federal anti-job bias laws.33
The Americans with Disabilities Act
Boyle has frequently demonstrated hostility toward the Americans with Disabilities Act (ADA), and has taken several opportunities to find that Congress exceeded its powers in making the ADA applicable to states, contrary to Supreme Court precedent.
Pierce v. King
In Pierce v. King, 918 F.Supp. 932 (E.D.N.C. 1996), aff’d, 131 F.3d 136 (4th Cir 1997), rev’d, 525 U.S. 802 (1998), a case vacated and remanded by the United States Supreme Court, Judge Boyle granted summary judgment to the defendant, holding that the Americans with Disabilities Act (ADA) was not applicable to a disabled state prisoner who was denied an accommodation that would have allowed him to participate in a work assignment for which inmates could receive “good time credit against the length of their sentence.” 918 F.Supp at 937.
According to Judge Boyle, Congress lacked authority under the Commerce Clause to enact an ADA applicable to state prisoners because state prisons do not have a “substantial effect” on interstate commerce. Id. at 939. Although Boyle acknowledged the great impact that state prisons do in fact have on interstate commerce, he opined that “the concept of substantiality is informed in part by traditional understandings of the proper roles of the federal government, the state governments, and the individual.” Id. Boyle allowed the interest that states have in managing their own prisons to trump the authority of Congress to legislate under the Commerce Clause:
Whatever the effects of prison labor upon interstate commerce might be, they are not sufficiently substantial . . . and are wholly insubstantial within the context of our nation’s federalist traditions, to legitimate applications of labor laws such as the ADA to state prisons.
Id. at 940.
In addition, Boyle stated that he believed Congress had no authority under Section 5 of the Fourteenth Amendment to apply the ADA to states at all. Id. According to Judge Boyle, “[a]lthough Congress invoked the power to enforce the Fourteenth Amendment in passing the ADA, it is unclear what right, if any, is vindicated by the Act.” Id. Boyle held that because the ADA seeks what he called “special treatment” for people with disabilities, rather than mere “equal treatment,” the Fourteenth Amendment provides no authority to Congress for abrogating states’ sovereign immunity:
Id.
Boyle went on to claim that “[e]ven if some positive rights to receive entitlement benefits under the ADA are rooted in the Fourteenth Amendment – and this Court very much doubts this – the requisite employment and public access relationships do not exist between prisoners and prisons, nor can such rights be practically extended within prison walls” Id. In addition, Boyle stated “it is impossible for prisoners to complain that they have suffered any form of employment discrimination proscribed by the ADA” because courts have consistently refused to find an employer-employee relationship between prisons and prisoners due to the fact that their primary relationship is not one of employment, but one of incarceration. Id.
Though the Fourth Circuit upheld Boyle’s opinion, the decision was subsequently vacated and remanded by the United States Supreme Court in light of the Court’s then-recent decision in a strikingly similar case, Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998). The plaintiff in Yeskey, a disabled prisoner, had been sentenced to 18 to 36 months in prison, but was eligible to participate instead in a “Motivational Boot Camp” for first-time offenders, successful completion of which would have led to his parole in just six months. The Department of Corrections, however, denied Yeskey participation on the grounds that the program was not suitable for persons with disabilities. Because the question had not been addressed by either of the lower courts that had considered Yeskey, the Court declined to settle the question of whether the ADA is a valid exercise of congressional power pursuant to Section 5 of the 14th Amendment. Id. at 212. The 9-0 opinion authored by Justice Scalia did hold, however, that “the plain text of Title II of the ADA unambiguously extends to state prison inmates” and that, as a result, the plaintiff was entitled to accommodations that would enable him to participate in the Boot Camp. Id. at 213.
Brown v. North Carolina Division of Motor Vehicles
A year after Pierce, Boyle heard Brown v. North Carolina Division of Motor Vehicles, 987 F.Supp. 451 (E.D.N.C. 1997), aff’d, 166 F.3d 698 (4th Cir. 1999), cert. denied, 531 U.S. 1190 (2001), a case brought by disabled citizens of North Carolina to challenge a state law that imposed a fee for the issuance of handicapped parking passes. The plaintiffs brought suit pursuant to Title II of the ADA, seeking a declaration that the fee was unlawful and an injunction against its continued imposition as well as recovery of the $5 fee they were each charged for parking passes, with interest. The ADA prohibits states from charging disabled individuals a fee for accessibility accommodations. Boyle took the opportunity to declare, once again, that application of the ADA to the states exceeded Congress’ powers under the Fourteenth Amendment and held that, despite the clear language of the ADA, individuals are barred from asserting an ADA claim against a state due to the Eleventh Amendment.
Boyle noted that, despite Congress’ clear intent to employ Section 5 of the Fourteenth Amendment to allow individuals to bring ADA suits against states, Congress must be “acting pursuant to a valid exercise of power” in order to invoke the Amendment. Id. at 455 (quoting Green v. Mansour 474 U.S. 64, 68 (1985)). Boyle held that Congress was not acting pursuant to a valid grant of congressional power in attempting to make the ADA applicable to the states.
In a section of his opinion entitled “The Enforcement Clause of the Fourteenth Amendment Is Not a Source of Authority to Abrogate States’ Sovereign Immunity,” id., Boyle opined that Section 5 of the Fourteenth Amendment only gives Congress the power to allow individuals to sue states for passing or enforcing laws directly contrary to the goals of the Fourteenth Amendment. Id. at 456. According to Boyle, the ADA is not the type of legislation typically enacted under the Fourteenth Amendment, is not consistent with the goals of the Amendment and, therefore, the states are not obliged to abide by the ADA.
In so holding, Boyle first found that legislative action pursuant to the Fourteenth Amendment has traditionally been designed to protect people from discrimination on the basis of race, alienage, national origin, or gender. In Boyle’s opinion, these are the only legitimate classes to be protected under the Amendment because they are the same classes the Supreme Court has determined are entitled to “heightened constitutional protections.” Id. at 457. Because the Court has never sought to assign heightened constitutional protection to people with disabilities, and Boyle believes that “it is incumbent upon the Supreme Court to make [the] determination” that people are entitled to heightened protection, id. at 458, it is improper for Congress to single out additional groups for heightened legislative protections. Id.
Second, Boyle reiterated his disturbing “special rights” theme from Pierce, in which he held that the ADA does not guarantee “equal protection” to people with disabilities but, instead, confers upon them “special treatment.”
Title VII . . . seeks a state of affairs where individuals are treated equally . . . The ADA on the other hand, seeks to single out the disabled for special, advantageous treatment. In other words, the ADA demands entitlement to achieve its goals. This is beyond the purview of the Enforcement Clause as the concept of entitlements has little to do with promoting the “equal protection of the laws.”
Id. According to Boyle:
[T]he ADA does not remediate invidious, arbitrary, or irrationally made classifications . . . [T]he ADA would force States to single out disabled individuals for advantageous treatment. This is not within Congress’ power under the Fourteenth Amendment’s Equal Protection Clause.
Id. at 459.
The Supreme Court has repudiated Boyle’s theories even in a decision limiting individuals’ rights under the ADA. In Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), the Court ruled 5-4 that individuals could not sue states for damages under Title I of the ADA because of insufficient evidence of state discrimination against the disabled and because the remedy was not congruent and proportional to the violation. But nowhere did the majority suggest that legislation pursuant to the Fourteenth Amendment must be limited to discrimination based on race, alienage, national origin or gender, and nowhere did the Court suggest that states cannot be required to comply with the ADA as Boyle had ruled. To the contrary, even the court majority specifically recognized that while damages were not available, Title I of the ADA “still prescribes standards applicable to the states” which can be enforced in lawsuits “for injunctive relief,” directly contrary to Boyle’s view. Id. at 374, n. 9. And in Tennessee v. Lane, 124 S.Ct. 1978 (2004), the Court ruled that even money damages may be available for some violations of Title II of the ADA. Boyle’s radical “states’ rights” view goes far beyond even the most conservative justices on the Supreme Court and would effectively dismantle the ADA as applied to state government agencies.
Williams v. Avent
In Williams v. Avent, Inc., 910 F.Supp. 1124 (E.D.N.C. 1995), aff’d by Williams v. Channel Master Satellite Sys., 101 F.3d 346 (4th Cir. 1996), Judge Boyle considered a plaintiff’s claim that her employer had failed to accommodate her disability under the ADA. The plaintiff injured her back in an automobile accident, which caused her doctor to classify her as having a “5% permanent partial disability of the back” and prescribe that she not lift more than 25 pounds at a time. Id. at 1129. Her employer refused to accommodate her disability or allow her to return to work in a different position, prompting her to bring this suit. Id. at 1130.
Boyle rejected the plaintiff’s claim, and ruled in favor of the defendant on a summary judgment motion. Id. at 1136. Though on appeal the Fourth Circuit upheld the judgment in favor of the defendant, on the basis that the plaintiff’s relatively minor disability was not sufficient to trigger ADA protections, the appeals court adopted a far more narrow rationale than Boyle and sharply criticized several key parts of his opinion. Williams v. Channel Master Satellite Sys., 101 F.3d 346 (4th Cir. 1996).
First, Boyle refused to consider whether the plaintiff’s suggested accommodations were reasonable. As part of her argument that her requested accommodations were reasonable, the plaintiff referenced 42 U.S.C. § 12111(9), which offers examples of “reasonable accommodation[s],” including “job restructuring . . . reassignment to a vacant position, [and] acquisition or modification of equipment or devices.” § 12111(9)(B). Boyle dismissed these examples, holding that because Congress used the phrase “may include,” the statute is “merely suggestive . . . has no force of law, and is not binding upon any court.” 910 F. Supp. at 1134. Instead, Boyle held that the courts should defer to employers in determining what is a “reasonable accommodation.”
The meaning of “reasonable” . . . is grounded in deference to an employer’s expert business decision flowing from a presumption that people behave in an economically rational manner, and an understanding that the requirement of reason is a requirement of economic rationality. While it may sometimes be less expensive for a business to incur the cost of an unreasonable accommodation rather than risk a lawsuit under the ADA, this has never been the Act’s purpose, and Courts should avoid encouraging the creation of such dilemmas by refusing to second-guess what is or is not a reasonable expense for a particular business to incur in order to maintain a particular employee.
Id. at 1133.
Boyle’s decision would give employers leave to find that even the most minor, inexpensive accommodations are “unreasonable” if an employer does not wish to go to the trouble of accommodating an employee. Certainly, it is easy to imagine a situation in which a worker would be denied even a slight accommodation because the employer believes it is easier to simply replace the worker, rendering accommodation economically “unreasonable.”
In fact, the Fourth Circuit specifically criticized Boyle’s holding that the definition of “reasonable accommodation” should be left to individual employers. It noted that the ADA makes it clear that employers must furnish reasonable accommodations “unless doing so imposes an ‘undue hardship.’” Id. at 349 (quoting 42 U.S.C. § 12112(b)(5)). The court also reminded Boyle that “[c]ourts are often asked to define reasonableness” in a variety of contexts and found that Boyle’s deferral to employers was “particularly inappropriate in the summary judgment context, where a court must view evidence in the light most favorable to the non-moving party.” 101 F.3d at 350. The Court of Appeals also noted the examples of reasonable accommodation listed in the statute and criticized Boyle for suggesting that the examples did not have force of law, stating, “[o]bviously, Congress considered these types of accommodations to be reasonable.” Id.
The Fourth Circuit was also critical of the portion of Boyle’s opinion dealing with the requirement under federal law that the plaintiff prove substantial impairment in performing a “major life activity.” The court noted that Boyle had failed to address the seriousness of the plaintiff’s lifting limitation in his opinion, and “perhaps more fundamentally,” Boyle had erred “in suggesting that working is not a major life activity.” 101 F.3d at 349 (emphasis in original). The court cited Fourth Circuit precedent that established working as a major life activity, Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994), and criticized Boyle for “improperly describing the regulatory language discussing working as a major life activity as ‘superfluous’” and stating that “[w]hile some courts might entertain claims under the ‘major life activity’ of ‘working,’ this Court does not.” 101 F.3d at 349.
Boyle’s improper attempt to use the 11th Amendment to shield state officials from responsibility for environmental racism
In the case of Franks v. Ross, 313 F.3d 184 (4th Cir. 2002), plaintiffs challenged the issuance of a permit to build a landfill in their town, which is “home to the largest percentage of African-Americans of any municipality in Wake County” and was already home to three other landfills. Id. at 188. Claiming that Wake County “has long engaged in a pattern of intentional discrimination in the siting of undesirable landfills near predominantly African-American communities,” plaintiffs brought suit against the county, the county board of commissioners, and two state officials, seeking injunctive relief to halt the construction of the landfill as well as making claims of civil rights and equal protection violations. Id. at 187-89. Boyle dismissed their claims, and they appealed to the Fourth Circuit. Id. at 188.
The Fourth Circuit first found that Boyle had abused his discretion in refusing to allow plaintiffs to amend their complaint after a state court had issued an opinion re-validating the issuance of the permit and thereby changing the facts of the plaintiffs’ case. Id. at 193. Boyle believed the plaintiffs had waited “nearly seven months” after the ruling to seek to amend their complaint and ruled that, due to the lapse in time, allowing the amendment would “clearly prejudice” the defendants. Id.However, the Fourth Circuit found that Boyle had been mistaken and the plaintiffs had actually sought to amend their complaint within three months of the separate court’s relevant decision. Id. The Fourth Circuit noted that “a decision premised on a ‘clearly erroneous finding of material fact’ constitutes an abuse of discretion” and found that such had been the case with Boyle’s denial. Id. The Fourth Circuit also found that Boyle had miscalculated when the statute of limitations began to run, and had thus improperly dismissed several of plaintiffs’ claims on that ground. Id. at 194-96.
The Fourth Circuit also addressed Boyle’s dismissal of the plaintiffs’ claims against the state officials who were responsible for approving and permitting sites for landfills, claiming they were entitled to sovereign immunity under the Eleventh Amendment. The Fourth Circuit noted that Boyle’s decision contradicted “the long-standing doctrine of Ex parte Young” that allows “suits against state officers for prospective equitable relief from ongoing violations of federal law.” Id. at 197-98.
The Fourth Circuit also criticized Boyle’s conclusion that Ex parte Young did not apply because the plaintiffs only sought to enjoin the construction, operation, and maintenance of the proposed landfill. Id. at 199. “While the [defendants themselves] would not be ‘constructing, operating, and/or maintaining” the landfill, “the plaintiffs were not required to present a perfectly drafted complaint in order to survive a motion to dismiss.” Id. The court found that the plaintiffs had given the defendants proper notice that they were seeking to enjoin their activities and “adequately asserted claims for injunctive relief . . . under Ex parte Young.” Id.
The Fourth Circuit noted specifically: “This case is not unique: the [] Defendants are state officials of North Carolina, acting in their official capacities. The Plaintiffs simply seek to enjoin them from engaging in what are alleged to be ongoing violations of federal law. The Plaintiffs adequately asserted claims for injunctive relief against the [] Defendants under Ex parte Young and the court erred in dismissing those claims.” Id.
Boyle’s improper effort to dismiss a case charging religious discrimination against state employees
Judge Boyle was recently reversed by the Fourth Circuit in a case where he dismissed plaintiff’s claims of religious discrimination as moot. In the case of DePineres v. Scott, 2004 U.S. App. LEXIS 12707 (2004), the pro se plaintiff brought action against a warden, assistant warden, and chaplain for religious discrimination and violation of his First Amendment rights when they denied him Kosher meals. Boyle found that the claim was moot because DePineres did not seek any money damages against the defendants. However, the Fourth Circuit issued an opinion – by a panel that included controversial Bush nominee Dennis Shedd – holding that, construing DePineres’ pro se complaint liberally, it could be determined that he did in fact seek money damages. The appellate court vacated the portion of Boyle’s decision holding DePineres’ religious discrimination claims moot, and remanded the case for further proceedings.
Judge Boyle’s reversals in redistricting cases
Judge Boyle has been reversed by the Supreme Court in several decisions favoring white plaintiff voters in redistricting cases. These include opinions he authored in Cromartie v. Hunt, (Cromartie I), 34 F. Supp 2d 1029 (E.D.N.C. 1998), rev’d 526 U.S. 541 (1999), and Cromartie v. Hunt (Cromartie II), 133 F. Supp. 2d 407 (E.D.N.C. 2000), rev’d sub nom Easley v. Cormartie, 532 U.S. 234 (2001). In addition, in Cannon v. North Carolina State Board of Education, 917 F.Supp. 387 (E.D.N.C. 1996), Judge Boyle, for unknown reasons, issued an opinion in a case assigned to another judge – the reasoning of which was later rejected by both his colleague and the Fourth Circuit – before the case could be heard by the judge to whom it was assigned.
Cromartie v. Hunt
Cromartie v. Hunt concerned the constitutionality of the drawing of North Carolina’s 12th Congressional District. District 12 had already been the subject of litigation, with a previous drawing of District 12 having been found unconstitutional because it was drawn as a black-majority district, with race as the primary factor in the district’s makeup. Shaw v. Hunt, 517 U.S. 899 (1996). After the district was re-drawn, a group of white voters brought this suit claiming that, once again, the district had been drafted primarily to create a black-majority district. The defendant state officials denied that race had been the primary consideration in drawing the district and claimed that the district had been created with the permissible goal of creating a safe Democratic district.
Before discovery, without an evidentiary hearing, and after considering only circumstantial evidence, including the size, shape, compactness, and racial composition of the district, a three-judge panel, in an opinion authored by Boyle, granted the plaintiffs’ motion for summary judgment. In addition, the court enjoined the defendants from conducting elections for congressional offices until the district was re-drawn. 34 F. Supp. 2d 1029 (1998). The district court’s decision was appealed directly to the United States Supreme Court, which unanimously reversed in an opinion written by Justice Clarence Thomas. 526 U.S. 541 (1999).
Justice Thomas’s opinion dealt with the district court’s violation of the fundamental requirement that, in ruling on a motion for summary judgment, a court must consider the evidence in the light most favorable to the non-moving party. To be entitled to judgment in this case, the plaintiffs would have had to prove that “the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Id. (quoting Shaw, 517 U.S. at 905; Miller v. Johnson, 515 U.S. at 916). Because the parties disagreed about the legislature’s motivation, and the legislature’s intent could not be conclusively discerned from mere circumstantial evidence, a genuine dispute of material fact existed, making summary judgment inappropriate. Justice Thomas wrote:
Evidence that blacks constitute even a supermajority in one congressional district while amounting to less than a plurality in a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines when the evidence also shows a high correlation between race and party preference . . . While appellee’s evidence might allow the District Court to find that the State acted with an impermissible racial motivation . . . it does not require that that court do so . . . (emphasis in original).
The District Court nevertheless concluded that race was the “predominant factor” in the drawing of the district. In doing so, it either credited appellees’ asserted inferences over those advanced and supported by the appellants or did not give appellants the inference they were due. In any event, it was error in this case for the District Court to resolve the disputed motivation at the summary judgment stage.
Id. at 551-2. The Supreme Court remanded the case to the district court. Id. at 553.
Following a three-day bench trial, the District Court found that District 12 had been drawn with racial considerations as the primary motive in a 2-1 decision authored, again, by Boyle. Cromartie II, 133 F. Supp. 2d 407 (2000). The court considered the size, shape, and compactness of the district. In addition, the court considered expert testimony claiming that it would have been possible to create a safe Democratic district with fewer minority voters as well as comments by one legislator and one legislative staff member that hinted at a racial motivation in drawing the district. Id. at 410-11.
In a 5-4 opinion, the Supreme Court reversed the district court again. Cromartie II, 532 U.S. 234 (2001). The Court held that the evidence Boyle relied upon in his new opinion was “precisely the kind of evidence we said was inadequate the last time this case was before us.” Id. at 244. And, while newly considered statistics and comments hinting at a racial motivation provided “a modicum of evidence supporting the District Court’s conclusion,” id. at 257, the Supreme Court held that all the evidence taken together was insufficient to prove that race was the primary motivating factor in redrawing the district. The Court held that the district court had committed “clear error” in finding for the plaintiffs and reversed the decision.34
Cannon v. North Carolina State Board of Education
In Cannon v. North Carolina State Board of Education, 917 F.Supp. 387 (E.D.N.C. 1996) (Boyle, J.), 959 F.Supp. 279 (E.D.N.C. 1997) (Britt, J.), aff’d, No. 97-1459 (4th Cir. 1997) (unpublished), the plaintiffs were white voters who were challenging the re-drawing of certain public school board districts in connection with the merger of the Durham County and City of Durham Public Schools. 959 F.Supp. at 291. The plaintiffs filed motions for a temporary restraining order, preliminary injunction, and permanent injunction in an effort to prevent school board elections planned in the newly-drawn districts, and to require the State Board of Education to re-draw the new districts. 917 F.Supp. at 388.
The plaintiffs contended that the new districts had been intentionally drawn to create “white” and “black” districts. 959 F.Supp. at 297. The defendants countered that the districts were drawn in an attempt to give equal representation to voters from the two districts being merged, and that the racial division among the districts was merely a byproduct of the fact that the majority of Durham County voters are white, while the majority of City of Durham voters are black. Id.
The lawsuit was filed in late February 1996, and the election was scheduled to take place on May 7 of the same year. The case was assigned to District Court Judge W. Earl Britt, who was on vacation at the time of the filing. In Judge Britt’s absence, under circumstances not fully explained in the court’s published opinion, Judge Boyle wholly accepted the plaintiffs’ contentions and found that three of the districts “are by conscious design predominantly black, while the other three . . . are by conscious design predominantly white.”35 Boyle concluded that the “racially-motivated school districting plan”36 was the result of “[r]acial gerrymandering, ”37 and that there was no justification for the “racially-motivated” districting likely to survive a strict scrutiny challenge.38 Judge Boyle noted in his February 23rd opinion that the “parties may . . . seek regular calendaring” of the case before Judge Britt and stated that, should they be “unable to obtain such calendaring within ten (10) days, this Court will issue the temporary restraining order.”39
Judge Britt issued an unpublished order on April 1, 1996, in which he apparently denied preliminary injunctive relief. 959 F. Supp. 289, 291, 295. In 1997, Judge Britt issued a summary judgment order completely dismissing plaintiff’s claims, squarely contradicting Judge Boyle’s opinion. Judge Britt explained that with respect to claims under the Voting Rights Act, plaintiffs had failed “to come forward with any evidence” to meet their burden of proof. Id. at 295. Contradicting Judge Boyle’s ruling, Judge Britt found that the plaintiffs failed to prove that the redistricting involved “purposeful discrimination against whites” or “an intent to thwart the participation of white voters.” Id. at 297, 298. The Fourth Circuit affirmed Judge Britt, again noting (in contrast to Judge Boyle) that the “evidence falls short of demonstrating that the legislative purpose was subordinated to racial considerations” and agreeing that “race was not a motivating basis” for the plan. No. 97-1459 (4th Cir. 1997) (unpublished), at p. 4, 5. The unanimous Fourth Circuit panel, as well as one of Boyle’s fellow district judges, thus reached the opposite conclusion from Judge Boyle and found no discrimination against white voters in the case.
Boyle’s record on campaign finance
In three cases brought by North Carolina Right to Life, Boyle has ruled in favor of NCRL and ruled unconstitutional federal or state laws regulating campaign finance. Boyle was reversed at least in part in all three cases, including two reversals by the Supreme Court.
In Beaumont v. FEC, 137 F.Supp. 2d 648 (E.D.N.C 2000), members and officers of North Carolina Right to Life and others challenged the provisions of federal law and regulation that prohibit corporations from making direct contributions to support or oppose candidates for federal office. Id. at 650. According to Boyle, these rules are unconstitutional as applied to “non-profit, ideological” corporations like NCRL which, he claimed, “pose[d] no threat to the political forum.” Id. at 653. Boyle dismissed the FEC’s argument that any burden the ban placed on First Amendment rights was lessened by allowing corporations to establish a “segregated fund” from which they can make limited, direct contributions to candidates for public office, because such funds are subject to reporting requirements and other “administrative burdens.” Id. at 656. The Fourth Circuit affirmed. Beaumont v. FEC, 278 F.3d 261 (2002).
In a 7-2 vote, however, the Supreme Court reversed. FEC v. Beaumont, 593 U.S. 146 (2002). The Court found that the ban did not violate the First Amendment and therefore was constitutional. Id. at 149. The court recognized that the basis for the ban was to protect the public from the potentially harmful influence of corporate dollars aimed at federal campaigns. Id. at 152.
The Court rejected the position that the non-profit corporations that Boyle referred to as innocuous and ideological “on a class-wide basis . . . pose no potential threat to the political system.” Id. at 159. “They, like their for-profit counterparts, benefit from significant ‘state-created advantages’ . . . and may well be able to amass substantial ‘political war chests.” Id. at 160 (quoting Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and FEC v. National Right to Work, 459 U.S. 197 (1982)). The Court noted that “not all corporations that qualify for favorable tax treatment under 501(c)(4) . . . lack substantial resources, and the category covers some of the Nation’s most politically powerful organizations, including the AARP, the National Rifle Association, and the Sierra Club.” Id. at 160. In addition, “[n]onprofit corporations are . . . no less susceptible than traditional business companies to misuse as conduits for circumventing the contribution limits imposed on individuals.”Id. The Court also noted that allowing non-profits to establish a PAC was an adequate method of allowing “some participation of unions and corporations in the federal electoral process.” Id. at 162 (quoting National Right to Work, 459 U.S. at 201).
Two other campaign finance decisions by Boyle favoring NCRL have been reversed at least in part. In NCRL v. Leake, 124 S.Ct. 2065 (2004), the Supreme Court vacated a Fourth Circuit ruling that largely affirmed a Boyle opinion, declaring unconstitutional several portions of North Carolina campaign finance law requiring disclosure of certain expenditures in light of the Court’s decision in McConnell v. FEC, 124 S.Ct. 619 (2003). And in NCRL v. Bartlett, 3 F.Supp. 2d 657 (E.D.N.C. 1998), Boyle struck down several provisions of North Carolina law, including a prohibition on legislators or candidates accepting or soliciting contributions from lobbyists while the state General Assembly was in session. The Fourth Circuit reversed Boyle with regard to his holding that this ban was unconstitutional. 168 F.3d 705 (1999). The court noted that, “[i]n fact, the activities of lobbyists are extensively regulated,” and also characterized the statute as doing “nothing more than plac[ing] a temporary hold on appellees’ ability to contribute during the General Assembly session, leaving them free to contribute during the rest of the calendar year.” Id. at 715.
The Fourth Circuit also went on to explain that the statute advanced a compelling state interest. The court pointed out that prohibiting contributions to non-incumbents as well as incumbents served the state’s goals because “contributions to incumbents [are not] the only way to gain favorable treatment . . . [S]ticks can work as well as carrots, and the threat of contributing to a legislator’s challenger can supply as powerful an incentive as contributing to that legislator himself.” Id. at 716. The court also rejected Boyle’s contention that the statute was faulty for failing to discriminate between large and small contributions because the “court has no scalpel to prove such fine distinctions” as which contributions are “large enough to support a potential quid pro quo” and which are not. Id. (internal quote omitted). The Supreme Court denied certiorari, 528 U.S. 1153 (2000).
Conclusion
Judge Terrence Boyle’s record clearly fails to demonstrate either an “exemplary record in the law,” or a “commitment to protecting the rights of ordinary Americans” and to the “progress made on civil rights, women’s rights, and individual liberties,” or a “respect for the constitutional role Congress plays in promoting these rights.” To the contrary, Boyle has an extremely troubling record of reversals, far worse than the average district court judge and other Bush nominees. That record, which his recent answers to the Senate Judiciary Committee apparently attempt to obscure, includes numerous reversals for “plain error” and for repeating the same mistake in multiple cases. Boyle has been reversed even by the conservative Fourth Circuit in a number of civil rights cases. He has actively promoted an extreme “states’ rights” philosophy that would eliminate protections against improper discrimination by state agencies on grounds of race and disability. He has shown a disregard for victims of discrimination based on race, gender, and disability that is so extreme that he improperly refused even to enter a consent decree to remedy such discrimination in one state-wide case. He has improperly tried to invalidate redistricting plans and campaign finance laws, drawing reversals from conservative judges including even Justice Clarence Thomas. As troubling as many of the President’s appellate court nominations have been, Boyle’s nomination is among the worst. His nomination should be rejected.
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.