That was fast. En Banc Rehearing granted in case decided February 20.

If I had been keeping up with my coverage of the Court of Appeals, I might have speculated whether the split decision in Mazie Green v. Portfolio Recovery Associates, LLC (February 20, 2024) would result in a petition for rehearing en banc or an appeal to the Supreme Court. As I was not keeping up, however, we do not need to speculate, because the Court has granted the rehearing en banc already. Technically, this means I shouldn't summarize the now withdrawn panel opinion, but as it is likely the en banc will result in taking the view of either the majority or the dissent, let's dive in.

Ms. Green, who is pro se, appealed a judgment in a debt collection action. Portfolio Recovery Associates is a debt collection agency that acquires debt, mostly from credit card issuers, and then seeks to recover from the debtor. Generally, debt buyers like PRA seek to recover directly from the debtor, but failing that will file a warrant in debt in the general district court of the jurisdiction where the debtor was last know to live to obtain a judgment on the debt and then seek enforcement of the judgment. Service is almost always by posting.

A fairly significant percentage of these debt actions are not contested and the debt buyer gets a default judgment. If, however, the judgment is contested, the debt buyer may have difficulty establishing the debt depending on what documentation they received from the original creditor (or as in this case, from a third-party). They can also run afoul of the Fair Debt Collections Practices Act if, for example, the debtor previously contested the debt or cannot show that they had a good faith belief that the debt was actually owed.

PRA acquired Green's alleged debt from Synchrony Bank in 2019, but the documents submitted in the general district court to establish the chain back to the original credit card agreement involved three other credit card servicers of Green's "PayPal" credit card. All of the "bills of sale" from one bank to the next were for multiple accounts and none specifically referenced Green's account. She argued that PRA was thus unable to establish the requisite change of title to prove she owed the debt to PRA. she also contended that PRA was in violation of the FDCPA for having failed to perform due diligence to determine whether it had standing to pursue her for the debt. The general district court ruled in favor of PRA and Green appealed.

In the circuit court, PRA admitted that none of the documents it had submitted included Green's name or account number. PRA could also offer no explanation as to why in some of its documents the last four digits of the account was different from that originally alleged in the warrant in debt, though they contended that the account number had been changed at some point. The circuit court ruled for PRA on the debt, dismissing Green's FDCPA claim as well.

The Court of Appeals, Judge Causey joined by Ortiz, reverses the judgment and remands for an order finding that PRA failed to establish that it owned the debt it was trying to collect and for further proceedings on the FDCPA claim. The majority finds that PRA did not have standing to pursue the debt because its evidence supporting ownership of Green's oblication was "scanty and incomplete." The majority goes on to find that even if PRA has standing, it didn't prove ownership of the debt, thus it should not have prevailed on the claim and there is a colorable argument that it is in violation of the FDCPA.

Judge Malveaux dissents from these decisions, finding that Green improperly couched her argument in terms of standing, rather than the merits of PRA's claim. Unlike the majority, she does not consider this an "unsettled" question, because PRA's belief that it was owed the debt, even if wrong, was sufficient to grant it standing, thus she would not reach the merits of that claim or whether the dismissal of the FDCPA claim was proper.

There was an additional issue regarding whether a procedure in the general district court was proper, but all three judges agree that issue is not properly before them.

If the majority decision stands, it may create minor ripple in the debt collection business. As indicated above, most of the actions to collect these debts are uncontested in the general district court, so strict proof is never required to establish the damages. However, when a debtor does contest the claim, the majority view will make it more difficult for the debt buyer to establish their ownership of the debt -- or even the standing to bring the suit.

Three, count 'em, Three Amici Briefs, and a plurality decision, in this Highly Charged Case which is Bound for the Supreme Court of Virginia (and maybe the US Supreme Court).

School Districts have become the latest ideological battleground between America's competing factions on social issues. Carlos Ibanez, et al. v. Albemarle County School Board, et al. (February 20, 2024) is Virginia's most recent entry into the fray. The nature of the suit is a challenge to Albemarle County Schools new anti-racial discrimination policy and a challenge by a group of parents (for themselves and their children, and with support from the Alliance Defending Freedom) which asserts that the policy is actually discriminatory by treating minorities differently. To put it bluntly, this is a case about a Diversity, Equality, and Inclusion (DEI) policy and whether it is too "woke". The circuit court found that the plaintiffs lacked standing or otherwise had not made out a case and dismissed.

The resulting plurality decision with Judge Lorish, Judge Beales and (now retired) Judge Humphreys, each writing separately, is already on appeal to the Supreme Court of Virginia, and could potentially go on from there the the US Supreme Court. The lead opinion, by Judge Lorish, is 44 pages, Judge Humphreys takes just seven pages to state his partial disagreement with lead opinion, and Judge Beales takes 49 pages to set out his mostly dissenting opinion. Despite Judges Humphreys and Beales each having issues with the lead opinion, however, their differences do not allow for a majority result on any specific issue, thus the judgment dismissing the challenge was affirmed.

The parents had three amici supporting them. Melissa Moschella, Ph.D, of The Heritage Foundation, Ian Rowe, of the American Enterprise Institute, and The Family Foundation of Virginia, which is a legal action arm of Focus on the Family in Virginia. All of these groups may be fairly characterized as being on the conservative end of the American political spectrum. The School Board did not have an amicus -- perhaps the Board did not seek out any supporting briefs.

I will be frank in saying that while I usually do not shy away from addressing controversial subjects, I am reticent to say more about this case than that I agree with Judge Lorish's parting observation that "whether [the plaintiffs' disagreement with the Board ] is or is not a legitimate concern, it is a concern about policy. And concerns about policy should be made to policymakers, not judges.” This is a direct quote from Menders v. Loudoun County

School Board, 65 F.4th 157 (4th Cir. 2023). Unlike this case, the 4th Circuit allowed some, but not all, of the challenges to a similar policy in Loudoun County to proceed. Menders is being brought by Liberty Justice Center (not to be confused with Liberty Counsel).

This case is not about whether the anti-discrimination policy of the School Board is actually discriminatory -- it's about the proper forum for debating that issue. It seems inevitable that the Supreme Court of Virginia will grant review of this case -- and this or another case like it will eventually reach the US Supreme Court. I am content to wait for those decisions.

Two Criminal Appeals from the Court of Appeals

Highland County is Virginia's least populous county, with around 2,200 residents. But even in a small community, crime is not unknown. The appeal of Robert Marshall Cornelius v. Commonwealth of Virginia (February 13, 2022) involves the tragic incident in which a 14-year-old was convicted of second-degree murder of his grandmother. Though the facts of the case suggested that the killing may have been accidental as he maintained, Cornelius agreed to enter an Alford plea to the murder charge. Unlike a "bare plea," an Alford plea preserves issues for appeal that would otherwise be waived and alos preserves the right to maintain actual innocence. As a juvenile tried as an adult, Cornelius was entitled to serve his sentence in a facility of the Department of Juvenile Justice and to have regular reviews of his status at which the court could release him without conditions, order his continued treatment at the DJJ, admit Cornelius to parole, or order his transfer to the DOC to serve the balance of his sentence as an adult.

Cornelius sought at a review hearing in 2023 to establish that his progress to rehabilitation while in the DJJ warranted a reconsideration of the transfer order and also asked the circuit court to admit him to parole. The circuit denied the requests and ordered that he be transferred to the DOC. Cornelius appealed.

On appeal, "the parties [were] sharply divided on the applicable standard of review for the trial court’s judgment made pursuant to Code § 16.1-285.2." Cornelius asserted that because the evidence received concerning his rehabilitation was uncontroverted, the Court of Appeals should apply a de novo standard. The Commonwealth contended that the issue was one committed to the circuit courts discretion and should be reviewed for abuse of discretion.

The Court of Appeals, Judge Huff joined by Judges Malveaux and Chaney, found that the abuse of discretion standard of review was the proper one. This virtually assures affirmance of the decision, and that is the case here.

As an editorial comment, I would note that Cornelius had an extraordinary team of attorneys briefing and arguing his case, and the Commonwealth had one of it most capable appellate advocates. The recording of the oral argument is available on the Court's website.

A motion for nolle prosqui is a request by the Commonwealth to dismiss a criminal indictment, in most cases without prejudice to refiling a new criminal charge for the same offense. In principle, the Commonwealth must shows "good cause" for doing so. In practice, the circuit courts almost never require the prosecution to give any reason, let alone actually testing whether the reason is a good one. What's more, an order granting a "nol pros" is not subject to appeal, but can only be challenged if (when) the new charge is brought.

Adam Marcus Griffin v. Commonwealth of Virginia (February 13, 2024) is an appeal from a case where the Commonwealth nol prossed three indictments then charged the defendant again that same day. Griffin argued that the Commonwealth had not demonstrated good cause of dismissing the indictments and, thus, the new indictments were improper.

Now, there is a wrinkle to this case that does not occur in most such cases -- immediately prior to the nol pros motion, Griffin had moved the circuit court to dismiss the indictments without prejudice, asserting that they had been improperly rendered by a mutil-jurisdictional grand jury. Although the court denied the motion, the Commonwealth, while maintaining that the indictments were proper, nonetheless sought to dismiss them "in an abundance of caution." The new indictments were entered by the regular grand jury for the jurisdiction. The Court of Appeals, Judges Beales joined by Judges Friedman and Callins, affirm the judgment of the circuit court finding that the granting of the nol pros was not without good cause.

There was an additional issue of venue raised in the appeal, which is somewhat ironic given that Griffin's original assertion that the indictments had been improperly brought by a multi-jurisdiction. The venue issue involves the solicitation of a murder of a witness against Griffin while he was in jail in neighboring jurisdiction. Griffin argued that the solicitation was complete once it was first raised in the jail, but the Court of Appeals found that the evidence in the light most favorable to the Commonwealth showed that some aspects of the solicitation occurred in the jurisdiction where the charge brought.