4th Cir.'s Floyd at Forefront of Social Justice Rulings

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By Patrick Gregory

June 1 — Judge Henry F. Floyd's April opinion reinstating a transgender bathroom access suit wasn't his first to tackle a hot-button social justice issue.

In a 2014 Floyd opinion, the U.S. Court of Appeals for the Fourth Circuit invalidated Virginia's same-sex marriage ban.

Floyd—known for having “judicial backbone”—issued another headline-grabbing ruling as a federal district court judge.

He decided that the federal government couldn't indefinitely hold terrorist plotter Jose Padilla as an enemy combatant.

Floyd received nominations to the bench from both President George W. Bush and President Barack Obama, a notable occurrence for federal judges.

He also served in all three branches of South Carolina's state government.

Bathroom Access

Floyd's April opinion reinstating the transgender bathroom access suit was “the leading decision on the issue,” an American Civil Liberties Union attorney representing the boy told Bloomberg BNA at the time of the decision.

A transgender boy sought access to a bathroom at his high school under Title IX, in G.G. v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 BL 123552 (4th Cir. 4/19/16), (84 U.S.L.W. 1539, 4/21/16).

The district court should have given deference to the Department of Education's interpretation of its own regulations implementing Title IX, the Fourth Circuit said.

A DOE opinion letter interpreting those regulations said schools “must treat transgender students consistent with their gender identity” if they choose to treat students differently or to separate them based on sex.

The regulations were ambiguous as to whether gender should be determined by gender identity or by a student's genitalia.

Accordingly, the DOE's interpretation warranted deference, the court found.

The Fourth Circuit denied en banc review May 31, G.G. v. Gloucester Cty. Sch. Bd., 4th Cir., No. 15-2056, reh'g denied 5/31/16 (84 U.S.L.W. 1777, 6/2/16).

This issue deserves “an open road” to the U.S. Supreme Court, Judge Paul V. Niemeyer said in his dissent from that denial.

The school board June 7 filed a motion to stay the Fourth Circuit's mandate pending appeal to the Supreme Court.

On the same day, the Fourth Circuit automatically stayed the mandate pending a ruling on that motion.

Unanimous Approval

The judge's career has seen many controversies, but his confirmation to the Fourth Circuit in 2011 wasn't one of them.

The Senate's unanimous, 96-0 vote to confirm Floyd—then a district judge—was a “rare bipartisan display of support” for one of Obama's judicial nominees, McClatchy Newspapers said at the time.

“Republicans, Democrats, independents, vegetarians” all had a common opinion that Floyd “has got the best temperament of anybody in South Carolina,” Sen. Lindsey Graham (R-S.C.) said at Floyd's confirmation.

Superlative praise from Rep. James E. Clyburn (D-S.C.) went even further.

“I can tell you without question that no one has ever been considered for a judgeship, no one has ever served in a judgeship that has demonstrated the kind of judicial temperament” shown by Floyd, Clyburn said.

Law School Election

Floyd was elected to the South Carolina state legislature while still in law school at the University of South Carolina.

That was valuable experience, Floyd said in 2011.

It enabled him to work with the legislature's judiciary committee, which drafted much of the legislation considered by the state's house of representatives.

“And so I got a real good lesson in how to put statutes together, how to interpret them, what the pitfalls could be,” he said.

Floyd said he believed that experience would greatly assist “in the area of statutory construction and interpretation” at the Fourth Circuit.

Floyd would later serve in the other two branches of South Carolina's government—as a county attorney and state circuit court judge—in addition to being a commissioner on the state's forestry commission.

But Floyd's career hasn't been limited to government—he worked in private practice for almost 20 years.

Marriage, ‘Judicial Backbone.'

Floyd wrote the Fourth Circuit's opinion invalidating Virginia's same-sex marriage ban in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (83 U.S.L.W. 169, 8/5/14).

That decision was an example of Floyd's “ ‘judicial backbone,' ” according to a story in The State, a South Carolina newspaper.

Floyd's peers describe him as having “a quiet, courteous personality with the strength to do what he believes is right even if it's unpopular or might be reversed on appeal,” the story said.

He recognized that his Bostic opinion would be unpopular with some.

“We recognize that same-sex marriage makes some people deeply uncomfortable,” the Fourth Circuit said.

But “inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”

Jose Padilla

As a district judge, Floyd showed that strength in Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005), a follow-up to the Supreme Court's procedural ruling in Rumsfeld v. Padilla, 542 U.S. 426 (2004).

Floyd's ruling went against the president who nominated him to the district court judgeship—George W. Bush.

The opinion found that Jose Padilla—a U.S. citizen associated with al Qaeda and an alleged “dirty bomb” plot—couldn't be detained indefinitely as an enemy combatant under the Non-Detention Act, 18 U.S.C. §4001(a).

The decision was a “sound rebuke to the Bush administration,” according to the Associated Press.

It was also a “rare judicial rebuke of executive authority in wartime,” the Blog of Legal Times said.

Floyd wrote that to rule in the government's favor here “would also be to engage in judicial activism.”

“This Court sits to interpret the law as it is and not as the Court might wish it to be.”

Floyd said Bush had “no power, neither express nor implied, neither constitutional nor statutory” to hold Padilla as an enemy combatant.

The judge distinguished the detention of a U.S. citizen “captured on the battlefield” from the detention of Padilla, who was arrested at a U.S. airport.

The Fourth Circuit reversed the decision in Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005) (74 U.S.L.W. 1158, 9/20/05).

Not Camera Shy

Even earlier, Floyd was getting national attention as a state court judge in 1996—on Court TV.

Floyd presided over the 3-week trial of State v. Beckham, involving the gruesome murder of a state senator's daughter.

The entire trial was televised live.

Floyd had a “good experience” with Court TV and “never got burned by it,” Floyd testified in 2011.

“I run a pretty tight courtroom and I have not had problems” with television cameras, he said.

DNA Decision

A state court ruling by Floyd was one of the first to allow admission of mitochondrial DNA evidence, in State v. Council, No. 94-GS-2_1049, aff'd, 515 S.E.2d 508 (S.C. 1999) .

Unlike traditional DNA evidence, mitochondrial DNA comes from the mother of a victim or suspect.

“It was only the second time in the United States that mitochondrial DNA evidence was admitted,” Floyd said in 2011.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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