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Hannah Davis (’12) argues in U.S. Court of Appeals for the Fourth Circuit

Hannah Davis (’12) argued in the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., on Friday, Jan. 27, as part of the Appellate Advocacy Clinic.  The Fourth Circuit is the federal appeals court for five states:  Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Davis was the 10th Wake Forest 3L to argue in the Fourth Circuit in the past five years.

Davis argued on behalf of Billy Lee Lisenby Jr., in the case of Lisenby v. Lear.  Lisenby alleges that a sheriff, a deputy sheriff (who was the brother of the sheriff), and a patrolman falsely arrested him as the result of a longtime feud. Lisenby sued the defendants in South Carolina state court pro se, claiming in forma pauperis status and thereby not having to pay a filing fee.

The defendants removed to federal court on the grounds that Lisenby’s claims involved federal law as well as state law and paid Lisenby’s filing fee. The federal district court remanded the case to state court based on the Prisoner Litigation Reform Act, 28 U.S.C. § 1915 (PLRA). Under the PLRA, a prisoner such as Lisenby who has filed three previous frivolous cases may not bring a case in federal court as a pauper but instead must pay the full filing fee at the time of filing.

The appeal presents a case of first impression for any circuit:  whether a district court may remand a case to state court after the defendants have removed a case that the plaintiff, due to the PLRA, could not have brought in federal court himself.  The defendants argue that the remand was improper, while, as appointed counsel for Lisenby, the Appellate Advocacy Clinic contends that either the remand cannot be appealed under 28 U.S.C. § 1447 or that the district court properly remanded the case due to the PLRA.

Davis argued to a panel of judges that included Chief Judge William Traxler of South Carolina, Judge J. Harvie Wilkinson of Virginia, and Judge James Wynn of North Carolina.

Judge Wilkinson is an active questioner who asks the longest and most complex questions of any judge on the court, and he asked Davis many questions starting in the opening minute of her argument.

“Hannah did a great job handling Judge Wilkinson’s many questions and making her points,” said Professor John Korzen, director of the Appellate Advocacy Clinic. “The argument was a challenging one, because there is an absence of authority, and the judges seemed sympathetic to the defendants’ argument that the case should have remained in federal court. Hannah won Judge Wilkinson’s respect and praise, and Chief Judge Traxler highly complimented her argument, too.”

Leslie Cockrell (’12) shared the work on the Clinic’s brief. An opinion is expected within 90 days.

The Appellate Advocacy Clinic is a two-semester course for 3Ls. This year the clinic is handling seven appeals in five different jurisdictions. An information session about the clinic for rising 3Ls will be held on Tuesday, Feb. 21, at noon.