Ashley Waring (‘15) and Karon Fowler (’15) argue in the Fourth Circuit appeals court

Group photo of Ashley Waring ('15), Karon Fowler ('15) and others outside the courthouse

Ashley Waring (’15) and Karon Fowler (’15) both argued on Tuesday, March 24, 2015, in the United States Court of Appeals for the Fourth Circuit in Richmond, Va., as part of the Appellate Advocacy Clinic. It was the first time that the Appellate Clinic had two arguments on the same day in the Fourth Circuit, according to Clinic Director John Korzen (’81 BA, ’91 JD). The three-judge panel that heard both arguments included Judge Robert King of West Virginia, Judge Roger Gregory of Virginia, and Senior Judge Andre Davis of Maryland.

Waring argued on behalf of Joseph Newbold in United States v. Newbold.  The case involves recent changes to federal sentencing law and whether a prior state conviction of Newbold’s still counts as a “predicate” offense (or third strike) under a federal statute, the Armed Career Criminal Act (ACCA).  Waring’s student partner on the briefs and in oral argument preparation was Kathleen Bradway (’15), who also attended the oral argument.

“Ashley did a superb job explaining the case and why the prior state conviction should not count as an ACCA predicate,” said Professor Korzen. “She delivered her prepared remarks perfectly and handled questions very well.”

Fowler argued in the case of Andrews v. America’s Living Center, LLC, a case brought under the Fair Labor Standards Act.  The case involves the term “costs” in Federal Rule of Civil Procedure 41(d), specifically whether an award of costs can include attorney’s fees.  The clinic was appointed to represent the defendant, which was awarded the costs by the district court, after the defendant could no longer afford counsel.  Fowler’s student partner on the briefs and in oral argument preparation was Andrew Parrish (’15), who attended the oral argument.  After the Rule 41(d) issue was fully briefed, the Fourth Circuit ordered supplemental briefing on whether it has appellate jurisdiction under the collateral order doctrine.  The clinic then contended in its supplemental brief that the Fourth Circuit should either dismiss due to lack of jurisdiction or affirm the district court’s award of costs.

At oral argument, counsel for the plaintiff, despite previously arguing in favor of appellate jurisdiction, conceded that that the Fourth Circuit lacked jurisdiction and asked the court to dismiss.  Fowler also contended that the court lacked jurisdiction and addressed the Rule 41(d) issue as well.  The judges expressed some concern about the award of attorney’s fees under Rule 41(d).  Then, within five hours of Fowler’s argument, the Fourth Circuit dismissed the appeal, the result the clinic had requested and the plaintiff’s counsel had acquiesced to at oral argument.

“Fowler made an excellent argument and smoothly adjusted to the plaintiff’s change of position while also making key points and addressing the judges’ concerns,” Professor Korzen said.  “It was a great learning experience to have to grapple with both jurisdictional limitations and practical concerns about the effect of an attorney fee award on a re-filed case, as well as an opponent’s sudden change of position.  I am very proud of all the work Waring, Bradway, Fowler, and Parrish put in to these two interesting appeals.”