It appears that the Fourth Circuit may remain with five vacancies until the next president. Richmond lawyer E. Duncan Getchell Jr. has withdrawn his name from consideration after a long controversy and objections from key senators.Getchell withdrew after what he described as “prayerful consideration” that led him to conclude that it was no longer worth continuing his fight for the seat on the Fourth Circuit, a fight that began last September. For the full story, click hereHis chances were not helped when he was sued for being sued for defamation stemming from an appeal dismissed for malpractice. According to the lawsuit, Getchell was in charge of an appeal when the failure to file the trial transcript resulted in its dismissal. The lawsuit was brought by Christopher C. Spencer who says that Getchell conspired with his law partner, William R. Allcott to blame Spencer for the failure when the nomination ran into trouble. He insists that Getchell took complete control of the appeal after the trial and that the White House helped put out the false story that Spencer was the culprit — noting that he was the one who was sued. It is a form of common law defamation to attack the professional standing or conduct of another individual. Truth however remains a defense. Getchell could argue that he had was merely expressing an opinion, but this is routinely rejected as a defense when it clearly indicates a basis in undisclosed facts. The Virginia Supreme Court noted this in Williams v. Garraghty in 1995:

pure expressions of opinion cannot form the basis of a defamation action, but … “factual statements made to support or justify an opinion, however, can form the basis of an action for defamation.” See Swengler v. ITT Corp., 993 F.2d 1063, 1071 (4th Cir.1993) (construing Virginia law). It is for a court, not a jury, to determine, as a matter of law, whether an alleged defamatory statement is one of fact or of opinion.

The rule under the Restatement (Second) of Torts § 566 tracks the same general rule that a statement made as an opinion is still actionable “if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” Restatement (Second) of Torts § 566. “[I]f the recipient draws the reasonable conclusion that the derogatory opinion expressed in the comment must have been based on undisclosed defamatory facts, the defendant is subject to liability.”Getchell was also hurt due to the fact that he was not on the list of proposed nominees from either of the Virginia senators, who hold effective control in stopping a nominee from their state. He can now focus on defeating the lawsuit for $7.5 million.