Alberto Diaz - CONFIRMED

United States Court of Appeals for the Fourth Circuit

Biography

On November 4, 2009, President Obama nominated Judge Diaz to the Fourth Circuit Court of Appeals stating, Judge Diaz has " been [an] exceptional public servant[] for the people of North Carolina and I am honored to nominate [him] today to serve from the federal bench."[1]

Judge Diaz was born in Brooklyn, New York in 1960.  He attended the University of Pennsylvania's Wharton School, and received a B.S. in Economics in 1983.  Diaz received his J.D. from New York University in 1988.  While there, he received the Moot Court Advocacy Award, and was the Senior Casebook Editor of the Moot Court Board.  The next year, he enrolled in Boston University, later earning a Masters' in Business Education there in 1993.  Diaz is a member of the North Carolina bar.

Diaz began his legal career in the Marines, where he worked as a prosecutor and defense counsel, handling over 80 felony and misdemeanor cases.  Later, he went on to be the Chief Review Officer, supervising three attorneys and processing a daily docket of over 100 criminal cases.

He later moved to the Navy's JAG Office, serving four years as appellate counsel and handling over 200 criminal appeals.  Diaz entered private practice in 1995, working at Hunton & Williams as an associate focusing on commercial litigation, where he stayed until moving to the bench in 2001.  In 1999 and 2000 he received the firm's E. Randolph Williams Award for public service, given to lawyers completing at least 100 pro bono hours in a calendar year.  While in private practice, Diaz continued serving the Marines as a JAG Reserve Appellate Defense Counsel, a Reserve Navy-Marine Corps Trial Judiciary Military Judge, and a Reserve Appellate Military Judge in the Navy-Marine Corps' Court of Criminal Appeals until his retirement in 2006.  

Diaz is a part-time instructor in Central Piedmont Community College's and the University of North Carolina's paralegal programs.  He remains an active member of military groups, including the Marine Corps Association and the Marine Memorial Association.  He is also a current board member of the Marine Corps Coordinating Council of Greater Charlotte.  Between 2001 and 2005, Diaz was a member of the St. Gabriel Catholic Church Men's Club.[2]  Since 2003, Diaz has been a member of Florence Crittenton Services, a maternal health organization promoting child birth and healthy parenting among teens and young women. 

Notably, from 1995 to 2001, Diaz was a member of the Defense Research Institute ("DRI"), and for a time served as a member of their Insurance Law Committee.  DRI, the "Voice of the Defense Bar," is an organization defending the interests of business in civil litigation.  This same group in 2007 signed onto a Riegel v. Medtronics[3] amicus brief arguing that medical devices should be exempt from state consumer protection statutes if they received approval for sale and marketing by the Food and Drug Administration.[4] 

Diaz was appointed to an unexpired term on the North Carolina Superior Court Judge in 2001, and became the first Latino to serve on that bench.  Although he lost his election bid in November 2002 to keep the seat,[5] the next month he was appointed Special Superior Court Judge.  In 2003, Diaz applied for appointment as a U.S. Magistrate Judge for the Western District of North Carolina, was interviewed, but not selected.[6]  In 2005, Diaz was appointed as a Special Superior Court Judge for Complex Business Cases, where he has served since.  He received a unanimous well-qualified rating from the American Bar Association. 

Legal

There is a limited amount of available information about Judge Diaz's judicial record.  Many of the decisions from the North Carolina Superior Court, where Diaz sat for many years, are not published.  And, like most state courts, many sentencing decisions he handed down in criminal cases were not published.  However, from the existing information, his record raises concerns in a variety of legal areas: consumer protection, the rights of criminal defendants, civil rights, and the rights of victims of medical malpractice. 

Before confirming Diaz to this influential seat, it is incumbent upon the Senate to ask the nominee questions about his concern for equal justice for all.  His resume does not contain any significant civil rights work.[7]  He worked on behalf of Big Tobacco interests in private practice.  And, as a military lawyer and later military judge, his views on executive power need further examination as the circuit to which he is nominated hears many of these cases.[8] 

This is problematic as the Fourth Circuit for years been viewed by ultraconservatives as the model of success for their court-packing plan.  Over the last several years, the judges on the Fourth Circuit issued opinions striking down portions of the Violence Against Women Act[9] and the Clean Water Act;[10] upholding Virginia's mandatory parental notification statute for abortions;[11] ruling in favor of Big Tobacco that the FDA lacks the authority to regulate nicotine as a drug;[12] denying Title VII protections to workers reporting outrageous racially derogatory comments (e.g., "[t]hey should put those two black monkeys [African Americans] in a cage with a bunch of black apes and let the apes f**k them") – even though circuit precedent and company policy required employees to report such comments.[13]  The court even went so far as to declare that federal law enforcement officials do not have to follow the longstanding rules, articulated in Miranda v. Arizona, requiring police officers to inform the people they arrest of some of their basic constitutional rights – a decision later reversed by Chief Justice Rehnquist writing for a 7 to 2 Supreme Court majority.[14]  More recently, the Fourth Circuit held that individuals detained as "enemy combatants" in the aftermath of 9/11 could be detained indefinitely without charge.[15]  It is in this context that Judge Diaz's nomination must be evaluated. 

Private Practice

While an associate at Hunton, Diaz represented the defendant in an important voting rights case, Jenkins v. Manning,[16] brought by The Lawyers' Committee on Civil Rights, challenging a Delaware school district's at-large electoral system.  In Jenkins, the plaintiffs alleged that the voting method used to determine at-large school district members diluted the voting strength of African American voters, providing them less opportunity to participate in the political process and to elect candidates of their choice in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973.  The case was twice appealed to the Third Circuit, resulting in the only voting rights opinion written by then-Judge Alito while on the Third Circuit.  (He ruled in favor of the school district, and his opinion was the subject of discussion at his Supreme Court confirmation hearing.)  Although the district court on remand found legally sufficient evidence of white block voting, and the Circuit panel on which Judge Alito sat agreed that each factor of the applicable three-factor test had been met, the court nevertheless upheld the electoral system in a controversial ruling. 

Diaz was also lead counsel for the American General Finance, Co. in a predatory lending case while at Hunton.[17]  The plaintiffs were homeowners who mortgaged their home and secured as collateral a single parcel of their land (thus, leaving other parcels of land untouched).  They sued American General after the company used their entire property as security for the loan for bad faith, fraud, violations of the Truth in Lending Act and West Virginia consumer protection statutes.  At trial, the jury heard excerpts from an American General employee's prior testimony that the company had a general practice of falsifying loan documents, and ultimately awarded the homeowners over $250,000 in damages.  On appeal, the court held that admitting the statements was in error and reversed the jury verdict.

After he was nominated, press reports indicated that Diaz "made a name for himself at Hunton & Williams representing Phillip Morris during tobacco lawsuits in the late 1990s."[18] Yet, we were unable to locate any tobacco case on which Diaz was record counsel.  However, in his questionnaire, Diaz offered that he "conducted document review and prepared legal memoranda on issues related to the litigation."[19]

Judicial Record

Judge Diaz's record on the bench is mixed, and it contains few opinions outside of the business context.  This is not surprising since he has served for four years as a Special Business Court Judge.  Notably, this court has been praised by corporate journals as being the "model for the nation" in terms of its liability climate that favors business interests.[20]  There are a scant number of cases on which he ruled, either as a Business Court Judge or as a Mecklenberg Superior Court Judge, demonstrating his analysis of other areas of the law such as labor disputes, civil rights, and discrimination claims.  Although Judge Diaz has spoken out on behalf Latino rights while on the bench, [21] we found troubling opinions in which Judge Diaz ruled against consumers, victims of medical malpractice, and the rights of criminal defendants – and on more than one occasion been reversed on appeal for doing so.  

When presented with an opportunity to rule on consumer protection matters, Diaz has issued pro-defendant rulings that were later overturned.  On a matter of first impression in North Carolina courts, he denied, on per se grounds, class certification in a consumer lawsuit brought under the Telephone Consumer Protection Act – only to be reversed by the North Carolina Court of Appeals.[22]  The Court of Appeals took the more nuanced, consumer friendly approach when analyzing class certification under the Act, ruling that each case should be analyzed under its own set of unique facts. 

In a case pitting union leaders against their members, Fisher v. Communications Workers of America,[23] Diaz found in favor of the plaintiff employees.  The suit alleged that the union violated the North Carolina Identity Theft Protection ("NCITPA"), committed unfair and deceptive trade practices under state law, and invaded the employees' privacy by posting their names and social security numbers on work bulletin boards.  It was a matter of first impression before the court, and Diaz ruled against the union's motion to dismiss holding instead that two claims – the NCITPA and unfair trade practices – were viable. 

Diaz also dismissed a medical malpractice case against a county hospital on grounds of governmental immunity, only to be reversed by the North Carolina Court of Appeals in a decision that made clear that Judge Diaz ignored long-standing North Carolina Supreme Court precedent.[24]  In this suit, plaintiff alleged that negligent procedures conducted by hospital staff during his birth left him with permanent, life-long injuries.  Judge Diaz granted the hospital's motion for summary judgment based on governmental immunity because it happened to be owned by the county. [25]  The appeals court held that Judge Diaz erred and that the "case [was] not distinguishable from [an earlier North Carolina Supreme Court decision] in any meaningful respect."[26]

Ehrenhaus v. Baker[27] is one of Judge Diaz's most high profile rulings.  Ehrenhaus rose out of the financial crisis that engulfed much of the American economy in the fall of 2008.  At the time, Bear Stearns had collapsed, government regulators were taking drastic measures to prop up the financial system, and Wachovia bank, based in Charlotte, feared that the government would take over the company and liquidate its assets.  Amidst this storm, Wachovia's board decided to sell the bank to either CitiGroup or Wells Fargo, ultimately settling on a deal with Wells Fargo in which Wachovia would issue new shares and sell them to Wells Fargo at a price much lower than the company's shares had been valued in the recent past.  Wachovia shareholders, who stood to lose both voting power and share value, asked Diaz to issue a preliminary injunction.  They argued that Wachovia's board breached its fiduciary duties toward them in consummating the merger, and that Wachovia's bank holding company aided and abetted in this breach of fiduciary duties.  Diaz rejected both claims, holding that the board did not violate North Carolina substantive law, and that board's decision-making process, although shortened due to the "extraordinary circumstances" confronting them, was reasonable and fell within the standard of care demanded by North Carolina law.  Diaz did throw out one minor section of the proposed merger, but that did not stop the overall deal.

Judge Diaz has also issued criminal rulings which are concerning.  In State v. Stone, Judge Diaz found for the police on an unreasonable search and seizure Fourth Amendment question, a decision later reversed by two state appellate courts.[28]  In Stone, the defendant was a passenger of a vehicle who gave consent to a generic search for weapons and drugs during a routine traffic stop.  In the process of conducting a pat-down, the officer pulled the defendant's sweat pants away from his body and trained his flashlight to the groin area.  Diaz held that although the search was "intrusive," it was reasonable under the circumstances.  Both the North Carolina Court of Appeals and the North Carolina Supreme Court disagreed, ruling that the flashlight search inside the pants exceeded the scope of consent.[29]  

In State v. Morgan,[30] Judge Diaz was reversed by the North Carolina Court of Appeals on double jeopardy grounds.  While serving on the Mecklenburg County Superior Court, he reinstated a DWI charge against a defendant that had initially been dismissed by the district court on a technicality (key police affidavits were improperly notarized; the notary's expiration date was missing).  Diaz determined that since the notary's commission was valid, even if not noted on the stamp, he reinstated the case.  The court of appeals reversed.  Once the district court dismissed the charge because of insufficient evidence, double jeopardy barred further prosecution despite the mere technicality. 

Perhaps more troubling is Diaz's recent competency ruling in a case in which the state may seek the death penalty.[31]  In State v. Montgomery, Diaz rejected the defendant's motion to be declared incompetent, although two psychiatrists and a psychologist testified that he likely suffers from paranoid schizophrenia and cannot assist his defense.  The case is somewhat sensational, as the defendant is charged with killing two local police officers.  Although Diaz noted that the defendant has a low IQ, scattered thoughts, and abnormal behavior, he ultimately concluded that the defendant was choosing not to aid in his own defense by not communicating with his lawyers.  Unlike the majority of paranoid schizophrenics, Diaz found, the defendant is "fastidious in his grooming habits . . . generally cooperative in taking prescribed medications . . . and generally coherent and stable in his interactions with family members, albeit with intermittent episodes of somewhat abnormal behavior."[32] 

And, in State v. Freeman,[33] an unpublished case Diaz discusses in his committee questionnaire, Diaz made a determination that the defendant in a first degree murder case was competent to stand trial while at the same time lacked the mental capacity to represent himself at trial.  Diaz based his determination upon the report of a "staff psychiatrist" after the defendant was placed in a mental hospital.  Without knowing more, this question raises serious concerns about whether Freeman had the opportunity to present his own psychological evaluation, the quality of his initial legal representation, and the process by which he was admitted to the mental institution. 

Conclusion

The Fourth Circuit, perhaps above all others, needs judges committed to our nation's core constitutional values.  The President and the White House understand the importance of having a judiciary which provides equal justice for all.  Thus, the opportunity to apply this core American principle in a broad, impactful way should be borne out by nominating an attorney who has a demonstrated commitment to this goal.  Judge Diaz possesses many admirable qualities, and although we are hopeful that he will faithfully apply the Constitution to ensure its mandate of equal justice for all, it is incumbent upon those voting for his confirmation to flesh these matters out before confirming him to this influential seat on the court of appeals.

» AFJ Report on Alberto Diaz (pdf)

[1]  Press Release, The White House, President Obama Nominates Judge Albert Diaz and Judge James Wynn to the Fourth Circuit Court of Appeals (Nov. 4, 2009).

[2] Albert Diaz, Senate Judiciary Committee Questionnaire, 111th Cong. 8 (2009).  Diaz wrote that the male-only group is "a religious service organization whose membership has traditionally been limited to men.  Because it is an organization dedicated exclusively to fellowship, spiritual growth, and participation in a variety of service projects, I do not believe the Club's membership limitation results in invidious discrimination."

[3]  552 U.S. 312 (2008).

[4]  Brief for Defense Research Institute et al. as Amici Curiae Supporting Respondents (No. 06-179). 

[5]  Judge Diaz requested a recount after he lost.  See Richard Rubin, "Recount of Cayer Victory Over Diaz; 529-Vote Margin for Superior Court Seat Qualifies for Repeat Tally," Charlotte Observer (Nov. 13, 2002) pg 3B. 

[6]  Supra n. 1 at 32.

[7]  Id. at 46.  Diaz wrote in his Questionnaire that he represented the post-conviction appeal of a North Carolina death row inmate, but we were unable to locate any case of which he was counsel of record. 

[8]  In a letter to the editor submitted over 25 years ago, Diaz stated that those entering the Marines do not "lust for a war" to further career ambitions.  Albert Diaz & Clark Brett, Letter to the Editor, "North Carolinians Won't Fall for Name Game," N.Y. Times (Aug. 1. 1982).

[9] Brzonkala v. Va. Polytechnic Inst. & State Univ., 132 F.3d 949 (4th Cir. 1997) (Judge Motz (Clinton) wrote the opinion, in which Judge Hall (Ford) joined, upholding the civil remedy provision of the Violence Against Women Act; Judge Luttig (Bush I) dissented), rev'd en banc, 169 F.3d 820 (4th Cir. 1999) (Judge Luttig (Bush I) wrote the opinion, in which Judges Wilkinson (Reagan), Widener (Nixon), Wilkins (Reagan), Niemeyer (Bush I), Hamilton (Bush I), and Williams (Bush I) joined, striking down the provision as exceeding Congress's authority under the Commerce Clause and Section 5 of the 14th Amendment; Judge Motz (Clinton) wrote a dissenting opinion, in which Judges Murnaghan (Carter), Ervin (Carter), and Michael (Clinton) joined), aff'd by United States v. Morrison, 528 U.S. 807 (1999).

[10] Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) (reversing the district court's declaratory judgment and holding that the Army Corps of Engineers' issuance of permits creating valley fills with the spoil of mountaintop coal removal was not ultra vires under the Clean Water Act) (Judge Neimeyer (Bush I) wrote the opinion, in which Judge Hamilton (Bush I) joined; Judge Luttig concurred in part (Bush I)).  

[11] Planned Parenthood v. Camblos, 155 F.3d 352 (4th Cir. 1998) (Judge Luttig (Bush I) wrote the opinion, in which Judges Wilkinson (Reagan), Widener (Nixon), Wilkins (Reagan), Niemeyer (Bush I), and Williams (Bush I) joined; Judge Wilkinson (Reagan) and Widener (Nixon) each wrote a concurring opinion; Judge Michael (Clinton) wrote an opinion concurring in the judgment but questioning the application absent a mandatory judicial bypass, in which Judges Murnaghan (Carter), Ervin (Carter), and Motz (Clinton) joined).

[12] Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155 (4th Cir. 1998) (Judge Widener (Nixon) wrote the opinion, in which Senior Judge Michael (Carter), United States District Judge for the Western District of Virginia, sitting by designation joined.  Senior Judge Hall (Ford) wrote a dissenting opinion), reh'g en banc denied by 161 F.3d 764 (4th Cir. 1998) (Judges Murnaghan (Carter), M. Blane Michael (Clinton), and Motz (Clinton) voted in favor of rehearing; Judges Widener (Nixon), Ervin (Carter), Niemeyer (Bush I), Luttig (Bush I), Williams (Bush I), and Traxler (Clinton) voted against).

[13] Jordan v. Alternative Res. Corp., 458 F.3d 332 (4th Cir. 2006) (Judge Neimeyer (Bush I) wrote the opinion, in which Judge Widener (Nixon) joined; Judge King (Clinton) dissented); reh'g en banc denied by 467 F.3d 378 (4th Cir. 2006) ( Judges Michael (Clinton), Traxler (Clinton), King (Clinton), Gregory (Clinton), and Wilkins (Reagan) voted for rehearing; Judges Widener (Nixon), Wilkinson (Reagan), Niemeyer (Bush I), Shedd (Bush II), and Duncan (Bush II) voted against).

[14] United States v. Dickerson, 166 F.3d 667 (4h Cir. 1999) (Judge Williams (Bush I) wrote the opinion, in which Judge Kiser (Reagan), Senior United States District Judge for the Western District of Virginia, sitting by designation, joined; Judge Michael (Clinton) dissented in part); rev'd by 530 U.S. 428 (2000).

[15] Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) (Judge Motz (Clinton) wrote the opinion, in which Judge Gregory (Clinton) joined; Judge Hudson (Bush II), United States District Judge for the Eastern District of Virginia, sitting by designation dissented; aff'd in part, rev'd in part by 534 F.3d 213 (4th Cir. 2008) (By a 5 to 4 vote: Judges Williams (Bush I), Wilkinson (Reagan), Niemeyer (Bush I), Traxler (Clinton), and Duncan (Bush II) voting in the affirmative that, if the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; Judges Michael (Clinton), Motz (Clinton), King (Clinton), and Gregory (Clinton) voting in the negative.  By a 5 to 4 vote: Judges Michael (Clinton), Motz (Clinton), Traxler (Clinton), King (Clinton), and Gregory (Clinton) voting in the affirmative that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant; Judges Williams (Bush I), Wilkinson (Reagan), Niemeyer (Bush I), and Duncan (Bush II) voting in the negative.)

[16] Jenkins v. Manning, 116 F.3d 685 (3rd Cir. 1997).

[17]  Fisher v. American General Finance Co., CA 00-350-2 (S.D.W.Va.); rev'd in part, vacated in part, 52 F. App'x 601 (4th Cir. 2002).

[18] Id.

[19] Supra n. 1 at 47.

[20] Directorship Magazine, Boardroom Intelligence, June/July 2008, Vol. 34 No. 3.  Boardroom's cover is a cartoon of a man entering a courthouse with the inscription "Abandon All Hope, All Yee Who Enter Here" above the door.  The phrase "aggressive plaintiff's bar" is also used throughout its pages. 

[21] Albert Diaz, Letters to the Editor, Charlotte Observer: "Editorial Nicely Counters Hysteria Over Pledge" (supporting reciting pledge in both English and Spanish) (Feb. 3, 2007); "Language Must Not Bar Justice for Immigrants" (courthouse doors should not be closed due to language barriers) (Aug. 27 2003); "North Carolinians Won't Fall for Name Game" (July 10, 2002) (voters won't reject a judicial candidate because she has a Latino name).

[22] Blitz v. Agean, 2007 NCBC LEXIS 21 (N.C. Super Ct. June 25, 2007), aff'd in part, rev'd in part, 677 S.E.2d 1 (N.C. Ct. App. 2009).

[23] 2008 NCBC LEXIS 19 (N.C. Super. Ct. Oct. 30, 2008).

[24] Odom v. Lane, 588 S.E.2d 548 (N.C. Ct. App. 2003). 

[25] Id. at 549.

[26] Id.

[27] 2008 NCBC LEXIS 21 (N.C. Super. Ct., Dec. 5, 2008).

[28]  02 CRS 245456 & 03 CRS 079221, Mecklenburg Superior Court Division, rev'd 634 S.E.2d 244 (N.C. Ct. App. 2006); aff'd 653 S.E.2d 414 (N.C. 2007). 

[29] But see State v. Price, 02 CRS 61580, 65019, 50310, 61581, 15483, 03 CRS 9087 Buncombe Country (N.C. Super Ct. Oct. 28, 2003) (granting defendant's motion to suppress evidence seized from his person after concluding that police did not have a sufficient reason to frisk suspect); State v. Blanton, 05 CRS 213467, Mecklenburg County (N.C. Super. Ct. Aug. 14, 2006) (granting defendant's motion to suppress crack cocaine seized because police did not have probable cause to search defendant at traffic stop); and State v. Covington, 05 CRS 232844, 232845, 232847, Mecklenburg County (N.C. Super. Ct. Aug. 15, 2006) (granting defendant's motion to suppress evidence and statements to officers because police failed to show checkpoint was established for proper programmatic purpose). 

[30] 660 S.E.2d 545 (N.C. Ct. App. 2008).

[31] State v. Montgomery, 07 CRS 215042, 44, Mecklenburg Superior Court Division (2009).

[32] Id. at p. 10.

[33] 06 CRS 218510, 28031, Mecklenburg Superior Court Division (unpublished).