Election drama headed towards Third Circuit?

Elliot Hannon has this story on Slate, published last night, entitled, “DNC Sues RNC Claiming Trump’s ‘Ballot Security’ Effort Is Illegal Voter Intimidation.”

The text of the article (boldface mine, hyperlinks in original):

The Democratic National Committee sued the Republican National Committee in a New Jersey federal court Wednesday, claiming that the RNC has supported and enabled Donald Trump in his claims the election is “rigged,” which, the suit says, is designed to illegally “intimidate and discourage minority voters from voting in the 2016 Presidential Election.” Specifically, the DNC’s suit says that Trump’s efforts to enlist supporters to engage in voter intimidation or “ballot security,” particularly in “other communities”—read: minority communities—violates a decades-old court order designed to prohibit attempts at voter suppression.

Although described as a suit, it’s actually an action to enforce a consent decree entered in an earlier suit whose appeal the Third Circuit heard in 2012, Democratic Nat’l Comm. v. Republican Nat’l. Comm.

Get your popcorn, could be quite a show.

New opinions — ripeness and arbitratrability

Marshall v. Commissioner PA DOC — capital / ripeness — dismissal — per curiam

Having already removed his first set of appointed lawyers, a capital inmate moved to remove the next set of lawyers, too. While his motion was still pending, he filed a notice of appeal, and some time after the district court denied the motion. Today, the Third Circuit dismissed the appeal for lack of jurisdiction, holding that the district court’s post-notice ruling did not cure the lack of ripeness.

The opinion was per curiam; the panel was Smith, Hardiman, and Restrepo. The case was decided without argument.

South Jersey Sanitation v. Applied Underwriters Captive Risk Assurance Co. — civil / arbitration — reversal — Greenaway

The Third Circuit today reversed a district’s denial of a motion to compel arbitration, holding that the challenges to arbitration failed because they applied to the contract as a whole instead of the arbitration agreement alone, and thus were issues for the arbitrator to decide instead of grounds to avoid arbitration.

Joining Greenaway were Jordan and Hardiman. Arguing counsel were Thomas Quinn of Wilson Elser for the appellant and Louis Barbone of Jacobs & Barbone for the appellee.


New opinion — local official entitled to qualified immunity

Zaloga v. Borough of Moosic — civil rights — reversal — Jordan

The Third Circuit today reversed a district court’s denial of summary judment on qualified-immunity grounds. The introduction:

This case is an appeal from an interlocutory decision denying defendant Joseph Mercatili’s claim to qualified immunity. Dr. Edward Zaloga, who had been engaged in an ongoing feud with local government officials, publicly opposed Mercatili’s reelection as the President of the Moosic, Pennsylvania Borough Council. Mercatili allegedly retaliated against Zaloga by seeking to damage his business interests.

Zaloga brought this § 1983 suit against several county entities and individuals, alleging various constitutional violations, including Mercatili’s retaliation. The United States District Court for the Middle District of Pennsylvania granted the defendants’ motion for summary judgment with respect to all defendants except Mercatili. The Court decided that Mercatili’s claim to qualified immunity depended on disputed facts and would have to be resolved by a jury.

Mercatili now appeals, arguing that he is entitled to qualified immunity because his conduct, even if Zaloga’s allegations are true, did not violate clearly established law. We agree and will reverse and remand for the District Court to grant summary judgment in Mercatili’s favor.

Joining Jordan were Smith and Rendell. Arguing counsel were Joshua Autry of Lavery Law for the appellants and Joseph Healey of O’Malley Harris for the appellees.

Judge Hardiman is not a “radical-right” judge: another sound-bite cheap shot at a Third Circuit judge

Critiquing appellate judges accurately is hard work. They decide cases in panels, not individually, and most of the cases they decide are dulls-ville to the general public. Dramatic insights into ability and ideology are few and far between.

But earlier in the election cycle, conservatives tried to score a political point against Donald Trump by painting Third Circuit Judge Maryanne Trump Barry as a radical pro-abortion extremist. It was a pathetic effort, egged on by people who surely knew better.

Now, it’s liberals’ turn to try to score a point against Trump by smearing judges, and this time the Third Circuit judge in the cross-hairs is Judge Thomas Hardiman.

Over the weekend, Huffington Post ran this essay by law professor Marjorie Cohn, entitled “The Threat of a Right-Wing Supreme Court: Analyzing Trump’s Prospective Judges.” The core premise of the piece is that the judges Trump has named as potential Supreme Court nominees are conservative (or, in the language quoted in the piece, “reflect a reflect a radical-right ideology that threatens fundamental rights and legal protections”).

Cohn tries to prove the judges’ radical-right wrongness by identifying conservative opinions written by each of the judges. For Judge Hardiman, she first notes his dissent in Drake v. Filko, arguing that the Second Amendment barred a state law that said you could only carry a handgun in public if you showed a justifiable need. Fair enough.

But then she writes:

Thomas Hardiman wrote two opinions allowing correctional officers to conduct strip searches of inmates accused of minor offenses.

The two cases she’s referring to are Florence v. Bd of Chosen Freeholders (2010), and Blaisure v. Susquehanna Co. (2015). The idea that these cases reveal Hardiman as a right-wing wingnut does not withstand scrutiny.

In Florence, Hardiman’s opinion was joined by Judge Sloviter. In Blaisure, he was joined by Chief Judge McKee and Judge Ambro. Are they all radical-right judges now, too?

And if Florence and Blaisure prove that Hardiman is so out-there, what about J.B. v. Fassnacht, which upheld strip searches for detained 12 year-olds? That ruling is vastly more troubling to me than either of Hardiman’s, and it was written by Clinton nominee Judge Julio Fuentes. Should progressives complain if a Republican nominated him to the Supreme Court?

With so many legitimate grounds to criticize Trump, why this? Sound-bite judge-bashing is lazy and poisonous, whether it’s done by conservatives or liberals.

Judge Hardiman will present at 2016 Federalist Society convention

Third Circuit Judge Thomas Hardiman will be a speaker at next month’s Federalist Society annual lawyer’s convention. The topic of the convention is “The Jurisprudence and Legacy of Justice Scalia.” Justices Thomas and Alito also will be speaking along with an impressive list of judges, lawyers, and and practitioners. Marcia Coyle has a National Law Journal story on the convention here.

Foolishly, the event’s webpage does not list Judge Hardiman among the five circuit judges (and one district judge and one state judge) named as “Speaker Highlights.”

New opinions — Third Circuit bashes trial court and prosecution but affirms anyway, plus a maritime case

U.S. v. Bailey — criminal — affirmance — McKee

The Third Circuit today held that a district court violated Rule 403 of the Federal Rules of Evidence when it admitted evidence of the defendants’ other bad acts, but that the error was harmless given the overwhelming evidence of their guilt. The defendants were convicted of heroin dealing; the erroneously admitted evidence included a surveillance video of a murder that was related to their drug trafficking. The court noted that it was disturbed by the prosecution’s tactic in using the murder video and “extremely troubled” by the district court’s admission of it, noting (cites omitted):

The extent of the district court’s [Rule 403] balancing regarding this piece of evidence was an off-handed and rather casual remark that the video of James being shot in the head at point blank range “wasn’t very graphic.” With that comment, the district court concluded that the video evidence would be admitted. For reasons known only to the court, the judge added that the admission of this evidence would give the defendants “an appeal issue.” The court was right.

Zing. And because the district court did not explain its 403 reasoning, the Third Circuit didn’t even apply the deferential abuse-of-discretion standard it normally would. But after the obligatory impotent Berger quote — which the opinion itself admitted “seems all too often to resemble the falling tree that no one hears” — the court found the error harmless and affirmed.

The opinion included this remarkable footnote:

Chief Judge McKee notes that he will begin naming attorneys who engage in such tactics in his opinions in order to deter such conduct. He hopes that this practice will stress that harmless error review is not an invitation to resort to unduly prejudicial tactics merely because the evidence is strong enough to obtain a conviction that will likely be immunized against reversal by the harmless error doctrine. He invites his colleagues to do the same.

Well, I’m not his colleague, but the docket lists as lead trial counsel for the prosecution Patrick C. Askin.

Joining McKee were Jordan and Roth. Arguing counsel were John Holiday, Gina Capuano, William Spade, and James Murphy for the four defendants and Norman Gross for the government.


Hargus v. Ferocious and Impetuous — maritime — reversal — Vanaskie

In the circuit’s most interestingly captioned case of the year to date, the Third Circuit today vacated a civil judgment for lack of maritime jurisdiction. And you don’t see this every day:

It bears noting that no entry of appearance was made on behalf of Hargus. Nor was a brief filed on his behalf and neither Hargus nor an attorney acting on his behalf participated in oral argument.

Vanaskie was joined by Fuentes and Restrepo. Arguing counsel was Matthew Duensing of the Virgin Islands for the appellants.

Third Circuit issues notice on new FRAP word limits

The Third Circuit today posted a notice to counsel on the court’s website addressing the new, shorter word limits for appellate briefs as well as other changes to the Federal Rules of Appellate Procedure.

The notice explains that all briefs filed after December 1 must comply with the new limits, except that appellee and reply briefs (but not motions or other non-brief filings) can use the old limits if the appellant’s brief was filed before December 1. The notice also includes this notable passage (hyperlink added):

The Court has reviewed the standing order of January 9, 2012 which discourages motions to exceed the word limits. The Court has determined that insofar as the order provides for granting a motion for excess words in extraordinary circumstances such as complex multi-party cases or when “the subject matter clearly requires expansion of the word limits” the order is in harmony with the comment to Rule 32 and will remain in force.

The notice also highlights two other key FRAP changes:

  • “Rule 4(a)(4) … clarifies that a motion listed in the Rule that is made after the time allowed by the Civil Rules will not toll the time for appeal,” and
  • “Rule 26(c) … ‘is amended to remove service by electronic means under Rule 25(c)(1)(D) from the modes of service that allow 3 added days to act after being served.'”

The notice states: “The full report and text of the Amendments are posted on the Court’s website. Counsel should read and become familiar with the changes to the Rules.” Sound advice.

New opinion — court rules for prisoner in speech-retaliation appeal

Mack v. Warden, Loretto FCI — prisoner civil rights — reversal — Fuentes

A divided Third Circuit panel ruled in favor on an inmate alleging violation of his rights. As the majority opinion summarized:

Mack’s allegations raise several issues of first impression in our Circuit, including (1) whether an inmate’s oral grievance to prison officials can constitute protected activity under the Constitution; (2) whether RFRA prohibits individual conduct that substantially burdens religious exercise; and (3) whether RFRA provides for monetary relief from an official sued in his individual capacity. We answer all three questions in the affirmative, and therefore conclude that Mack has sufficiently pled a First Amendment retaliation claim and a RFRA claim. We agree, however, that Mack’s First Amendment Free Exercise claim and Fifth Amendment equal protection claim must be dismissed. We will therefore affirm in part, vacate in part, and remand to the District Court for further proceedings.

Fuentes was joined by McKee; Roth dissented in part, arguing that inmates’ oral complaints should not be First-Amendment-protected speech. Arguing for the prisoner was Duke law appellate clinic student Russell Taylor (supervised by Sean Andrussier), and for the government was Jane Dattilo.

New opinion — paying employees for meals doesn’t excuse failure to pay them for overtime

Smiley v. E.I. DuPont — employment — reversal — Rendell

Employees of DuPont sued the company under the FLSA and state law for not paying them overtime for their off-the-clock time donning and doffing their uniforms and consulting with other employees. DuPont argued that it didn’t have to pay them this overtime because instead it paid them for their meal-break time, which it was not legally required to do. It argued that it could use the meal time for which it paid employees to offset the other time for which it didn’t. The district court agreed with DuPont, but today the Third Circuit reversed.

Joining Rendell were Vanaskie and Krause. Arguing counsel were Thomas Marrone for the employees, David Fryman of Ballard Spahr for Dupont, and Rachel Goldberg for the US Department of Labor as amicus curiae.

Lawyer wins landmark Third Circuit victory, according to himself

Yesterday the online National Law Review published an article reporting on the Third Circuit’s recent qui tam reversal in U.S. ex. rel. Customs Fraud v. Victaulic. The headline calls the decision “an important case of first impression” and “a landmark legal precedent.” The article is written like a news story, which is a little odd since the author is the lawyer who won the case. Odder still, he quotes himself in the story.

“Quoting yourself in a news story you wrote about your own case is something you probably shouldn’t do,” commented Matthew Stiegler, author of the landmark blog CA3blog.

For what it’s worth, here’s his take on why the case is a big deal:

The opinion issued yesterday addresses an issue that had not previously been addressed by any appellate court in the country, namely, whether a company that violates the country-of-origin marking requirement, and fails to pay marking duties, may be sued under the current version of the False Claims Act. The lower court had dismissed the complaint, reasoning, in part, that even if Victaulic had engaged in the alleged wrongdoing, it could not be held liable under the False Claims Act.  In yesterday’s decision, the Court of Appeals reversed, holding that False Claims Act liability “may attach as a result of avoiding marking duties.”

Happy Friday!

New opinions — an immigration reversal on aggravated felonies and a sentencing reversal on loss amount

Singh v. AG — immigration — reversal — Scirica

The Third Circuit today held that a Pa. conviction for possession of counterfeit drugs with intent to deliver is not an aggravated felony that would make the person convicted ineligible for discretionary relief from removal. The court held that the BIA erred by not applying the modified categorical approach. The court granted the petition for review and remanded.

Joining Scirica were Ambro and Jordan. Arguing counsel were Craig Shagin for the petitioner and Elizabeth Chapman for the government.


US v. Free — criminal sentencing — reversal — Fuentes

Here’s one you don’t see every day. A guy with plenty of money to pay his debts filed for bankruptcy and hid hundreds of thousands of dollars worth of assets, except he still had enough assets to pay his creditors in full. Not for nothing does the Third Circuit describe this as “bizarre.” The asset-hiding led to criminal convictions for bankruptcy fraud and a two-year sentence.

The issue in today’s appeal was how to calculate the loss amount for sentencing purposes, given that the creditors lost nothing. The district court used the amount the defendant concealed and the amount of debt he sought to discharge in bankruptcy. The Third Circuit reversed for resentencing, ruling that the loss amount is the amount the creditors lost or the amount the defendant intended to gain. The court noted that the resentencing court still could impose the same sentence, even without any loss enhancement, through an upward departure for lying and disrespect to the court. The court rejected as “too clever by half” his argument that the absence of loss rendered the evidence legally insufficient.

Joining Fuentes were Shwartz and Restrepo. Arguing counsel were Martin Dietz for the defendant and Laura Irwin for the government.



New opinions — a wiretap-suit-standing shocker and a qui tam reversal [updated]

Schuchardt v. President of the U.S. — civil — reversal — Hardiman

Today the Third Circuit ruled in favor of a solo civil practitioner named Elliott Schurchardt appearing pro se and appealing the denial of a pro se suit he brought against the government on behalf himself and others similarly situated. The pro se filer alleged that the NSA’s electronic monitoring violates the Fourth Amendment. The district court dismissed his suit on standing grounds, but the Third Circuit held that the pro se filer’s allegations were sufficient to survive dismissal on standing grounds, even though he alleged that the harm here resulted from collection of “all or substantially all of the email sent by American citizens by means of several large internet service providers.”

I’m going to go way out on a limb and predict a government rehearing petition and/or cert petition.

Joining Hardiman were Smith and Nygaard. Arguing counsel were Schuchardt (his address in the caption is in Virginia, his website lists Tennessee, and 2015 news coverage says Pittsburgh) pro se, and Henry Whitaker of the DOJ appellate section for the government.

UPDATE: seemingly intent on snatching defeat from the jaws of victory, the miraculously prevailing appellant already has been quoted in this news story as follows:

The appellate court ruling, however, limits his ability to subpoena evidence and depose witnesses, apparently exempting anything with a national security classification.

“If that’s the case, I’m not sure how much further the case can go because obviously, this entire area is classified,” said Schuchardt, who is considering an appeal to the Supreme Court on that part of the decision.


U.S. ex rel. Customs Fraud v. Victaulic — civil / qui tam — reversal — Roth

A divided Third Circuit panel today ruled that a district court erred in denying on futility grounds a qui tam relator’s motion for leave to amend its complaint. This appeal arises from the same amazing sitting I wrote about a couple weeks ago, the tenth published opinion from that panel.

Joining Roth was Krause; Fuentes dissented with vigor, arguing, “Whereas Twombly and Iqbal require plausible allegations of wrongdoing, CFI gives us unsupported assumptions and numerical guesswork.” Arguing counsel were Jonathan Tycko of D.C. for the appellant, Henry Whitaker (same one) for the government as amicus appellant, and Thomas Hill of D.C. for the appellee.



McKee’s early end to Third Circuit chief judgeship: collegiality over partisanship? [updated after speaking to Judge McKee]

When Third Circuit Judge Theodore McKee stepped down from his role as Chief Judge on October 1, he ended his chief judgeship early. Judge McKee’s term as chief would have run through 2017.

What’s the actual reason he stepped down early? I don’t know. The court’s press release didn’t mention that he was giving up his role before his term was over, let alone say why. And I don’t have any inside information. But I’ve got a theory.

[UPDATE: After I posted this, Judge McKee confirmed that my theory about why he stepped down early was “exactly dead on.”]

First, some background. Circuit-chief-judgeship-selection procedure is set by statute, 28 USC § 45. To become chief, you have to be under 65; your term runs for 7 years or until you turn 70, whichever comes first. McKee became chief in 2010 and was born in 1947, so his term was set to end in 2017.

Did he end early due to health? Because he wanted to scale back? Because he’s tired of the extra administrative role? I’ve seen nothing to support any of those hypotheses. The court’s press release says he’s not going senior, and his recent creation of the eyewitness-identification task force shows how comfortable he still was wielding the chief’s power.

But McKee’s decision to step down in 2016 had this clear consequence: it allowed Chief Judge Brooks Smith to become chief. Smith turns 65 in December, so, if McKee had served out his term into 2017, Smith would have been too old to become chief. Judge Michael Chagares would have been next in line, instead.

An aside:  am I suggesting McKee gamed his retirement date to keep Chagares from succeeding him? No. Chagares will still be chief (assuming he remains on the court and wants to be chief). If Smith serves his full term, he will be chief until 2021 when he turns 70. In 2021 Chagares will be only 59, so he’d still be eligible to serve a full seven-year term.

So why did McKee step down early? My guess [now confirmed] is he did it simply so that Smith could have the honor of serving as circuit chief. Third Circuit collegiality, pure and simple.

Okay, so now let’s look at all this through a partisan lens. McKee’s decision to step down early is remarkable in this poisonously partisan era, and not just because he’s a liberal and Smith was nominated by President George W. Bush. Here’s how the circuit’s chief judgeship succession will now play out in the years ahead, assuming everyone stays on the court, serves as chief when eligible, and serves a full term:

2016 – 2021  Smith

2021 – 2028  Chagares

2028 – 2035  Hardiman

2035 – ?   [to be determined — no judge who’s currently on the court]

So Republican-nominated judges can be chief until 2035, and likely longer than that if the next president is Republican.

Now, look at how the succession would have played out (same assumptions as above) had McKee served out his term:

2017 – 2024  Chagares

2024 – 2031  Hardiman

2031 – 2038  Krause

A Dem-appointed judge would have taken over in 2031, regardless who wins this November. GOP-nominated judges would have been able to be circuit chief for ‘only’ 14 years, not 19-plus.

Now, that’s all pretty deep in the weeds, obviously, but it demonstrates a basic point: McKee’s decision to step down early didn’t just benefit Smith, it also benefits Republicans. I doubt Judge McKee gave a damn.

If I’m right about all this [and I am], it shows that, even in 2016, there are still leaders who choose collegiality over partisanship.

The Third Circuit has a new Chief Judge

The Hon. D. Brooks Smith is the new Chief Judge of the United States Court of Appeals for the Third Circuit. He officially succeeded Judge Theodore McKee this past Saturday, becoming the court’s thirteenth Chief Judge. By statute, he is eligible to serve as Chief until he turns 70 in 2021.

Welcome, Chief Judge Smith!

New opinion — Third Circuit reverses in hard-fought Avaya appeal

Avaya v. Telecom Labs — civil / antitrust — reversal — Jordan

In an appeal that pitted a former Solicitor General against a former president of the American Academy of Appellate Lawyers, a divided Third Circuit today held that a district court erred by granting a mid-trial motion for judgment as a matter of law in this gigantic antitrust and civil suit. The majority slip opinion runs 118 pages. The dissent, another 15 pages, argues in part that the majority should not reverse based on an argument first made in the reply brief.

Jordan was joined by Greenaway; Hardiman dissented. Superstar arguing counsel were Seth Waxman for the appellant and James Martin for the appellees. (Argument audio here.)

Upcoming program — Judges and Journalists

The Third Circuit today announced a day-long event being held November 14 at the National Constitution Center in Philadelphia. The event is billed as “a dialogue on accuracy and access,” and the keynote speaker will be New York Times columnist Linda Greenhouse. Other presenters will include Third Circuit Judges McKee, Smith, Krause, and Rendell, as well as top national and local journalists.  Registration is free and includes lunch and a cocktail reception. The complete agenda is here.

I’m honored to be on a panel discussing topics on the horizon in the courts with Edson Bostic, Lawrence Lustberg, and Stephanie Resnick, moderated by Gaetan Alfano.

Space is limited, register online on the Third Circuit website, here.


Third Circuit officially announces new Chief

The Third Circuit today posted a news release announcing that Judge Smith will succeed Chief Judge McKee as the court’s Chief Judge, link here. Not many press releases qualify as can’t-miss reading, but I recommend it.

Two highlights:

“The Third Circuit is fortunate to have at the helm a judge with Brooks Smith’s
demonstrated record of leadership. Judge Smith led the judiciary through a significant
courthouse space reduction plan while also helping us secure a major commitment from
Congress to replace aging court facilities around the country,” said James C. Duff, the Director
of the Administrative Office of the U.S. Courts.


Judge Smith said, “Ted McKee is not only my colleague; he is also my dear friend.
Following him as Chief Judge of the Third Circuit goes beyond what I would call a ‘daunting
challenge.’ I may be succeeding him, but there is no way I can take his place. I am fortunate
that he will continue on the court as an active judge, and as someone I will look to for advice and counsel.”


New opinion — Third Circuit upholds rejection of generic drug-maker’s antitrust suit

Mylan Pharma. v. Warner Chilcott — antitrust — affirmance — Fuentes

“Product hopping” is a strategy name-brand drug makers use to suppress competition from makers of generic drugs. By changing their drugs in minor ways, they force generic makers to restart the federal approval process to show that their generic drug is the same. The practice has led to antitrust litigation, including today’s case involving an acne drug sold under the unfortunate brand name Doryx.

Today, the Third Circuit affirmed a district court ruling in favor of the antitrust defendant, holding that the plaintiffs failed to show that the defendants had monopoly power and failed to show that their product-hopping was in fact anti-competitive.

Joining Fuentes’s lucid opinion were Shwartz and Barry. Arguing counsel, amidst a phalanx of amici, were Jonathan Jacobson of Wilson Sonsini for the generic drug-maker and John Gidley of White & Case for the antitrust defendants.

“Alito Recalls Garth as ‘Epitome of Dedication'”

The title of this post is the headline of a story by David Gialanella in today’s New Jersey Law Journal. One highlight:

As a jurist, Garth was “the epitome of dedication,” “extraordinarily fair” and “very, very open-minded,” Alito recalled. Even when the circuit’s practice of sua sponte taking a case for en banc review had fallen by the wayside, Garth “continued to read every opinion very carefully” before it was issued, according to Alito.

Garth’s greatest lesson, according to Alito, was to study the record to form a better understanding of why the below court reached the ruling it did.

Also, Garth clerk Orin Kerr posted a fond tribute on Volokh Conspiracy yesterday, including this:

Judge Garth was in both attitude and demeanor a model judge. He wanted to get every case right, no matter how obscure it was, and he did cases by the book. If you listen to Richard Posner, you’ll hear that judges reach decisions that seem sensible on pragmatic grounds and then reason backwards to get there. Not Judge Garth. He was obsessed over the record and the standard of review.

New opinion — Third Circuit blocks hospital merger

Federal Trade Comm’n v. Penn State Hershey Medical Ctr. — antitrust — reversal — Fisher

The Third Circuit today ruled that the government was entitled to a preliminary injunction blocking the proposed merger of the two largest hospitals in the Harrisburg, Pa., area. The district court had denied the injunction, ruling that the FTC had failed to properly define the relevant geographic market. The Third Circuit’s review was plenary because the lower court misapplied economic theory. On the merits, it explained:

We find three errors in the District Court’s analysis. First, by relying almost exclusively on the number of patients that enter the proposed market, the District Court’s analysis more closely aligns with a discredited economic theory, not the hypothetical monopolist test. Second, the District Court focused on the likely response of patients to a price increase, completely neglecting any mention of the likely response of insurers. Third, the District Court grounded its reasoning, in part, on the private agreements between the Hospitals and two insurers, even though these types of private contracts are not relevant to the hypothetical monopolist test.

Joining Fisher were Greenaway and Krause. Arguing counsel were William Efron for the FTC and Louis Fisher of Jones Day for the hospitals.

Early news coverage by Pennlive here and Legal Intelligencer here. My prior post on the case (quoting a former FTC general counsel saying the district court’s ruling was “appallingly bad”) is here.

“Adjunct professor, alumnus appointed chief judge of 3rd U.S. Circuit Court”

The title of this post is the headline of a charming feature posted today on Penn State’s website on about-to-be-Chief Judge Smith.

Of particular interest to me:

Smith very much enjoys the case work he is involved in on the 3rd Circuit, and the processes of both studying a case and deciding a case. While he admits that the Court of Appeals process of deciding by three-judge panels is very different than that used by the District Courts, where a single judge makes the decision, he likes discussing the case with colleagues on the panel and finding common ground, as well as determining the right words for a judicial decision.

“The Court of Appeals is a constant intellectual challenge,” Smith said. “And the opportunity to teach has provided congruence between the study work of appellate cases and the pedagogy of a law professor. There are similarities in both positions.”

As for his legal legacy, he doesn’t give it much thought. He hopes his colleagues and the lawyers who appear before him view him as someone who decides each case based on its merits, and not on ideologies, politics or agenda.

“If they see me as motivated by proper concerns,” he stated, “I will be perfectly satisfied.”

New opinion — a quirky little treaty case

Didon v. Castillo — treaty — reversal — Greenaway

The Hague Convention allows a parent to petition for return of a child who has been removed from her country of “habitual residence” in violation of the parent’s rights. In a clear and thorough opinion, the Third Circuit today held that the Hague Convention does not permit a child to have two “habitual residence” countries at the same time, and ruled that the parent’s petition here must be dismissed because the child’s country of habitual residence does not recognize the Hague Convention.

Joining Greenaway were McKee and Fisher. Arguing counsel were civil appeals lawyer Anthony Vetrano of Vetrano Vetrano & Feinman for today’s losing parent and Michelle Pokrifka of CGA Law Firm for the winning parent.

Judge Garth died this week

Third Circuit Judge Leonard I. Garth passed away on Thursday. He was 95.

David Gialenella has this story in the New Jersey Law Journal, and the Rutgers website has this post.

In the Law Journal story, Chief Judge McKee is quoted describing Judge Garth as “absolutely tenacious,” and saying, “He was in many ways the conscience of the court, right up to his passing.”

UPDATE: Orin Kerr, a Garth clerk, has this warm tribute on Volokh Conspiracy, worth reading in full but featuring this:

Judge Garth was in both attitude and demeanor a model judge. He wanted to get every case right, no matter how obscure it was, and he did cases by the book. If you listen to Richard Posner, you’ll hear that judges reach decisions that seem sensible on pragmatic grounds and then reason backwards to get there. Not Judge Garth. He was obsessed over the record and the standard of review. He checked and double-checked whether jurisdiction was proper, because if there was no jurisdiction the court had no authority to decide the case.

He also insisted that his clerks give as much attention to hand-written pro se cases as to appeals by lawyers from big firms, on the thinking that every case was equal no matter whether the party was rich or poor. Clarence Earl Gideon wrote his cert petition in pencil, the judge would remind his clerks. You never know which pro se case might be the next Gideon.

New opinion — Court rejects necessity requirement for class certification

Gayle v. Warden Monmouth County Corr. Inst. — immigration / class action / jurisdiction — reversal — Krause

Today’s lone published opinion was issued by a panel comprised of Judges Fuentes, Krause, and Roth, which sat in February. It’s the third precedential opinion issued by that panel in the past week (Johnson and Hoffman are the other two), and all three are biggies. I went back and looked, and this is the ninth precedential opinion issued by that panel!  (Others include the kindergardener-abduction case, a criminal-sentencing appeal I described as “exceptionally aggressive,” and a big Fourth Amendment home search case.) I don’t normally track such things, but nine published opinions (and counting?) from one panel sitting has to be some kind of a record.

Anyway, today’s opinion arises from a class action suit challenging a federal statute imposing mandatory detention of aliens who have committed certain crimes. The facts and procedural history are complicated, but the gist of it is that the Court ruled today that the district erred by deciding the merits of the suit long after the class representatives’ claims had become moot, depriving both the district court and the Third Circuit of jurisdiction over the entire case except for a motion for class certification. (Oops.) The Court further held that the district court erroneously denied certification based on its view that a class action was “unnecessary” — noting a circuit split, the court held that necessity is not a freestanding basis for denying certification.

Krause was joined by Fuentes and Roth. Arguing counsel were Judy Rabinovitz of the ACLU Immigrants’ Rights Project for the class and Elizabeth Stevens for the government.

An update on the Hoffman case

I posted last Wednesday about an opinion the Third Circuit issued that day in Hoffman v. Nordic Naturals. In Hoffman, the court held that a district court was permitted to bypass the question of whether it had subject-matter jurisdiction over a case when it dismissed the case with prejudice on claim-preclusion grounds. My post criticized the opinion’s reasoning and gave my view that the opinion warranted rehearing.

At the time I posted, I had no connection to the case. I first saw the opinion Wednesday afternoon after the court posted it on its website.

After I published my post, I was contacted by the attorney who was the losing party in the appeal (he had done the appeal pro se), and he has now retained me to seek rehearing in the case.

My readers are entitled to expect that, when I discuss a case I’m involved with, I disclose that, as I did for example here, and I will continue to do that. So I’m posting this explanation to make clear that I had no awareness of the case before the court posted its opinion and no connection to the case at the time of my original post.



New opinions — affirming class certification and re-issuing an immigration opinion

Williams v. Jani-King of Philadelphia — civil / class action — affirmance — Fisher

The Third Circuit today affirmed a ruling certifying a class in a suit brought by two franchisees who allege that they are employees not independent contractors and thus are entitled to state-law wage protections. The class defendants argued that certification was error because the claims were not fit for class resolution, an issue implicating both commonality and predominance. The panel majority rejected this argument, emphasizing that an interlocutory challenge to certification is not the place to decide the merits. Judge Cowen dissented on commonality grounds, arguing that the majority opinion threatens the viability of franchising.

Joining Fisher was Chagares; Cowen dissented. Arguing counsel were Aaron Vanoort of Minnesota for the class defendants and Shannon Liss-Riordan of Massachusetts for the class plaintiffs.

UPDATE: commentary on JDSupra agreeing with the dissent here.


Ordonez-Tevalan v. A.G. — immigration — affirmance –Greenberg

The Third Circuit today granted panel rehearing and issued a new panel opinion in Ordonez-Tevelan v. A.G. The prior opinion is here, my summary is here. The disposition is unchanged, and my quick comparison of the two cases failed to reveal to me what changed. If an eagle-eyed reader alerts me I’ll update this post.



New opinion — split panel upholds dismissal of suit against officer who confronted and killed man high on PCP

Johnson v. City of Philadelphia — civil rights — affirmance — Fuentes

A lone police office responding to a radio call arrived on the scene to find a man “standing in the street, naked, high on PCP, and yelling and flailing his arms.” Police department policy directed the officer on what to do: “DEESCELAT[E] THE INCIDENT” by waiting for back-up, attempting to de-escalate through conversation, and retreating instead of using force. But, instead, the officer ordered the man to approach him. A confrontation ensued, the man reached for the officer’s gun, and the officer tasered the man and then used his gun to kill him. The man’s estate sued the officer and the city for excessive force.

Today, a divided Third Circuit panel affirmed dismissal of the man’s suit. The majority left open the possibility that an officer’s reckless initiation of an encounter could form the basis for an excessive-force claim, and also that the officer’s violation of department policy may be used to assess the reasonableness of a seizure. But the majority upheld dismissal of the suit on proximate-cause grounds, holding that there was no evidence from which a reasonable jury could find the requisite nexus between the officer’s act and the resulting death.

Judge Roth (notably, the only judge on the panel nominated by a Republican president) dissented, arguing, “By knowingly violating a police department regulation designed to keep mentally disturbed individuals safe, Dempsey set into motion the confrontation that ultimately led to Newsuan’s death – a confrontation whose foreseeability was the impetus for the establishment of Directive 136.”

Fuentes was joined by Krause, with Roth dissenting. Arguing counsel were Armando Pandola Jr. of Abramson & Denenberg for the estate and Craig Gottlieb of the city law department for the city.

New opinion — admission of police officers’ opinion testimony clear error, but harmless

U.S. v. Fulton — criminal — affirmance — McKee

The Third Circuit today held that the trial court committed obvious errors by admitting two police officers’ lay-opinion testimony, but that the errors were harmless in light of other proof of the defendant’s guilt. In order for lay-opinion testimony to be admissible under FRE 701, it must be (among other things) helpful to the jury. The Third Circuit held that one officer’s testimony interpreting phone records was not helpful because it was “dead wrong and even misleading.”  Other testimony about whether two people looked alike was not helpful because the officers were not sufficiently familiar with the people they were discussing. (This holding relates to the recent Dennis en banc and the circuit’s new eyewitness identification task force.) The court rejected various other challenges.

Joining McKee was Hardiman; Smith concurred but disagreed with the majority’s conclusion that the evidence was admitted erroneously. Arguing counsel were defender Louise Arkel for the defendant and John Romano for the government.

Habeas expert: “Court errs in denying habeas corpus to immigrants”

The title of this post is the headline of this op-ed on Philly.com today by Professor Eric Freedman. The decision he’s criticizing is Castro v. U.S. Dep’t of Homeland Security, which I discussed here.

Freedman writes:

Regardless of how Congress chooses to label these mothers and children, they are still entitled to a judicial forum. The constitutional protection of habeas corpus forbids Congress from denying people on our soil access to the courts by legislatively announcing that they are not here. Permitting such legerdemain would leave the writ “subject to manipulation by those whose power it is designed to restrain.”

Two big new opinions for the civ pro nerds [updated]

The Third Circuit issued two published opinions today, both fascinating if you enjoy tricky civil procedure issues.


Hoffman v. Nordic Naturals — civil — affirmance — Fuentes

Imagine you file a suit in state court. The defendant removes the case to federal court and then urges the federal court to dismiss your suit on a procedural ground. You’re sure the federal court has no jurisdiction at all to hear the case and so must remand it. The district court agrees with the defendant that dismissal would be warranted on the procedural ground — and it agrees with you that it has no jurisdiction. So what should the district court do?

Before today, I would have said the answer was dead obvious — the district court has to remand because it lacks jurisdiction. Without jurisdiction, it can’t decide your case, no matter how good it thinks either party’s arguments are, and no matter whether those arguments go to the merits of your claims or instead rest on a procedural ground.

But today the Third Circuit reached the opposite conclusion: “The District Court was . . . permitted to ‘bypass’ the jurisdictional inquiry in favor of a non-merits dismissal on claim preclusion grounds,” because “a court is not required to establish jurisdiction before dismissing a case on non-merits grounds.” That rationale seems wrong to me.

Here’s how the issue arose: plaintiff Harold Hoffman brought class-action lawsuit #1 in state court. The defendants removed the suit to federal court pursuant to CAFA, which gives federal courts jurisdiction to hear class actions big enough to meet certain thresholds, including that the amount in controversy exceeds $5 million. The district court denied Hoffman’s remand motion because it held that the suit met CAFA’s thresholds, and then on the merits it dismissed the suit on the pleadings. (Having dismissed the suit on the merits, the court gave Hoffman a chance to amend his suit, which he didn’t do.)

Hoffman then filed suit #2, again in state court. His new claims were basically the same as his old claims, but this time he defined the class more narrowly. Said the Third Circuit, “The purpose of this change, was, it seems, to reduce the amount recoverable and therefore defeat federal jurisdiction.” The defendant again filed notice of removal, Hoffman sought remand because this time CAFA did not confer jurisdiction, and the district court dismissed suit #2.

Today, the Third Circuit affirmed. But, critically, the court did not hold that the district court had jurisdiction over suit #2. Instead, it held that the district court didn’t need to have subject-matter jurisdiction over the case — that is, the removal need not have been legal — if the court ends up dismissing on non-merits grounds, citing the Supreme Court’s 2007 Sinochem case. Sinochem held that “a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case.” In my view, Sinochem is night-and-day different from what the court does here. Sinochem was just about forum selection and efficiency, not about courts nuking cases they don’t have the power to hear.

The whole point of the second removal was to throw out the second suit based on the federal court’s view of the merits. If the federal court didn’t have jurisdiction over the second suit, then it shouldn’t be the one to decide the preclusive effect of its merits ruling in the first suit. Nor should it decide whether tactical gamesmanship in repackaging the second suit warranted its dismissal. Only a court that has jurisdiction over the second suit — here, the state court — should get to decide those things.

As the hypothetical I began this post with suggests, I read today’s opinion to mean that federal courts can decide and dismiss removed state-filed suits — even if the removal was patently illegal — any time they can find a non-merits basis for dismissal. Suffice to say such a rule would be a big deal.

The introduction to today’s opinion emphasizes that the plaintiff here is a “serial pro se class action litigant.” (See, e.g., this law firm’s web page entitled, “Have you been Sued by Harold Hoffman?”) That fact wasn’t relevant to the court’s legal reasoning, but its prominent mention in the opinion may help explain the outcome here. And, frankly, it isn’t easy to imagine the court being eager to grant a rehearing petition filed by that same serial-filing pro se attorney. That’s a shame, because I think today’s opinion does warrant rehearing.

Joining Fuentes were Krause and Roth. The case was decided without oral argument.


UPDATE #1: After I posted the above, I was contacted by the losing party and ultimately retained to prepare a petition for rehearing in the case. I had no connection at all to the case at the time I wrote the post.

UPDATE #2: The same day the court issued its opinion, it also entered an order granting Nordic’s motion under FRAP 38 for sanctions and double its costs for filing an utterly frivolous appeal.


Wallach v. Eaton Corp. — civil — reversal — Krause

The Third Circuit issued a wonderfully cogent opinion today deciding a little point of antitrust procedure and a not-so-little point of class action procedure. The opinion’s introduction crisply explains:

In this case, we are called upon to determine, among other things, the fount and contours of federal common law applicable to the assignment of federal antitrust claims and the reach of the presumption of timeliness for motions to intervene as representatives of a class. Consistent with the Restatement of Contracts and the doctrines undergirding federal antitrust law, we hold that an assignment of a federal antitrust claim need not be supported by bargained-for consideration in order to confer direct purchaser standing on an indirect purchaser; such assignment need only be express, and that requirement was met here. We also hold that the presumption of timeliness, that is, the presumption that a motion to intervene by a proposed class representative is timely if filed before the class opt-out date, applies not only after the class is certified, as we held in In re Community Bank of Northern Virginia, 418 F.3d 277, 314 (3d Cir. 2005), but also in in the pre-certification context. Because the District Court failed to apply that presumption and the intervenors’ motion here was timely considering the totality of the circumstances, we conclude the District Court abused its discretion in denying their motion to intervene on that basis. Accordingly, we will reverse and remand for proceedings consistent with this opinion.

On the antitrust standing issue, the holding (antitrust claim assignments don’t require consideration) matters less than how the court got there. The court followed its prior precedent to conclude that the issue was controlled by federal common law. Since no precedent answered the question, the court then had to decide where to look for the content of federal common law. One side urged the court to look at the state law in all 50 states and adopt the prevailing approach; the other side urged it to follow the Restatement. The court decided that the Restatement was the right starting point and accepted the Restatement’s rule.

The class action timeliness-of-intervention rule has broad significance. The way the issue arose is that the defense sought to knock out the named plaintiff for lack of standing, other members of the putative class realized that the whole suit could be thrown out if the defense standing argument prevailed, so other putative class members moved to intervene but the district court said the intervention request was untimely. The Third Circuit disagreed for practical reasons:

[C]lass members would be compelled to intervene in every class action to protect their interests in the event the proposed class representatives are ultimately deemed inadequate”—giving rise to inefficiencies the class action device was designed to avoid  both before and after class certification. Denying the presumption to putative class members also could result in great inefficiencies and reductions in judicial economy in cases like the one before us, which would be dismissed after years of motion practice and discovery, only to be filed anew by plaintiffs who were unable to simply intervene and carry the motion for class certification through to its conclusion. Further, if the presumption of timeliness applied only to certified classes, then motions to intervene brought prior to class certification might be deemed untimely, even though those same motions would be timely if brought years later, after a class was certified.

(Internal quotation marks, alteration, and citation omitted.) Analyzing the timeliness of the motion to intervene itself, the court ruled that it was timely.

Joining Krause were Chagares and Scirica. Arguing counsel were Emmy Levens of Cohen Milstein for the appellants and Pratik Shah, of Akin Gump, for the appellees. On the appellee’s side alone, I count 22 lawyers on the brief from at least 6 household-name big firms. Fun fact: the lawyer who argued the losing side is co-head of Akin Gump’s Supreme Court and appellate practice; the lawyer who argued the winning side is an associate.

Judge Smith heading up judiciary space-trimming effort

The Judicial Conference posted a news release today which included this Third Circuit-related passage:

[T]he Conference received an update on its space reduction program, which was adopted by the Conference in 2013 as a Judiciary-wide cost saving measure. The key component of this effort is to reduce court space nationwide by three percent by the end of Fiscal Year 2018.  Judge D. Brooks Smith, chair of the Conference’s Space and Facilities Committee, reported to the Conference today that the courts have reached more than two-thirds of their overall target of reducing usable square footage by 870,305 square feet. This will result in an annual cost avoidance of approximately $15.5 million.

“In witnessing the commitment and follow-through by courts and court staff across the country, what has been most impressive is the spirit of cooperation, and sometimes even sacrifice, that has brought us to where we are now,” Judge Smith told the Conference. “All circuits have indicated that they plan to meet or exceed their circuit goals.”

The update also described pilot programs for prisoner e-filing and expanded intra-circuit judge-sharing.

New opinions — is the Third Circuit raising the bar for class certification again?

In re: Modafinil Antitrust Litig. — civil / class action — reversal — Smith

Today a divided Third Circuit panel vacated a district court order certifying a class in a pharmaceutical antitrust suit, announcing a new framework for analyzing the size of the class (“numerosity”). The majority directed that the numerosity inquiry “should be particularly rigorous when the putative class consists of fewer than forty members.” It ruled that the district court erred by placing too much weight on the late stage of the proceeding, directing that on remand the court should not take into account the sunk costs of litigation nor the risk of delay if certification were denied. The majority also held that the district court failed to “fully” explore whether class members could just join instead. The panel unanimously rejected the class defendants’ predominance arguments.

Judge Rendell dissented vigorously from the majority’s numerosity analysis, beginning thus:

Today, the Majority concludes that the able District Court judge abused his discretion by purportedly focusing on a consideration that we have never—indeed, by my research, no court has ever—stated it should not consider. How can that be? Furthermore, how can it be that the Majority mischaracterizes the late stage of the proceedings as being the focus of Judge Goldberg’s ruling when his reasoning actually focuses on the considerations that our case law dictates it should? Also how can it be that in analyzing judicial economy district courts are prohibited from considering the stage of the proceedings? I am perplexed. I am similarly perplexed as to why the Majority is directing the District Court on remand to figure out whether joinder is practicable when the appellants have failed to make that case themselves. I therefore respectfully dissent from part III.A of the Majority’s opinion.

This was Rendell’s second major dissent in two weeks.

Joining Smith was Jordan, with Rendell dissenting in part. Arguing counsel were Bruce Gerstein of Garwin Gerstein for the appellees, and Rowan Wilson of Cravath Swaine and Douglas Baldridge of Venable for the appellants.

UPDATE: news coverage on PennRecord.com, describing the court’s ruling as “surprising,” here.


Carpenters Health & Welfare Fund v. Management Resource Sys. — civil / labor — reversal — McKee

The Third Circuit today reversed a district court order dismissing a suit challenging a company’s failure to make contributions to employee funds.

Joining McKee were Fisher and Greenaway. Arguing counsel were Stephen Holroyd of Jennings Sigmond for the appellants and Walter Zimolong III for the appellees.


In re: Asbestos Pros. Liab. Litig. — civil — reversal in part — Scirica

In 1999, the Supreme Court described asbestos litigation as “elephantine.” Over a decade and a half later, the elephant is still lumbering along.

A worker exposed to asbestos died of lung cancer, and his estate sued the corporation whose equipment contained the asbestos he had been exposed to. In a fact-bound ruling applying Indiana law, the Third Circuit today affirmed dismissal of claims related to some of the equipment but reversed dismissal of claims related to other equipment.

Joining Scirica were McKee and Ambro. Arguing counsel were Robert McVoy from Illinois and Christopher Conley from Georgia.

Three new opinions

Associated Builders v. City of Jersey City — civil — reversal — Krause

Jersey City, NJ, offers tax exemptions to developers, but only if they meet certain labor conditions including using union labor, rejecting strikes and lock-outs, and a set percentage of local hiring. Today, the Third Circuit held that, in enacting the labor conditions, the city was acting as a regulator not a market participant. The ruling reversed the district court and meant that the conditions were reviewable for pre-emption and dormant-Commerce-Clause violation.

Joining Krause were Chagares and Scirica. Arguing counsel were Russell McEwan of Littler Mendelson for the appellants, Zahire Estrella for the city, and Raymond Heineman of Kroll Heineman for an intervenor.


Goodwin v. Detective Conway — civil rights — reversal — Fuentes

Rashied Goodwin sued police officers for false imprisonment and malicious prosecution after he was arrested; he alleged that the officers should have known he was innocent because they had a booking sheet indicating he was in jail at the time of the crime. The defendants moved for summary judgment based on qualified immunity, the district court denied the motion, and today the Third Circuit reversed. The court reasoned that the booking sheet did not show that Goodwin was in custody at the relevant time. (I was confused when I read the opinion because the key dates are replaced with empty brackets; I missed fn.6 explaining these are redactions requested by the parties.)

Joining Fuentes were Chagares and Restrepo. Arguing counsel were Eric Pasternack for the officers and Catherine Aiello of Lowenstein Sandler for Goodwin.


US v. Adeolu — criminal — affirmance — Vanaskie

The Third Circuit affirmed a criminal sentence, holding that the USSG 3A1.1(b)(1) vulnerable-victim sentencing enhancement does not require actual harm to the victim, only a nexus between the victim’s vulnerabilty and the crime’s success.

Joining Vanaskie were Greenaway and Shwartz. Arguing counsel were Karina Fuentes of the FPD for the defendant and AUSA Jose Arteaga for the government.


Circuit establishes task force on eyewitness identifications

The Third Circuit announced this afternoon that it has created the Third Circuit Task Force on Eyewitness Identifications. The order creating the task force was signed by Chief Judge McKee. The task force will:

make recommendations regarding jury instructions, use of expert
testimony, and other procedures and policies intended to promote reliable practices
for eyewitness identification and to effectively deter unnecessarily suggestive
identification procedures, which raise the risk of a wrongful conviction.

* * *

In order to discharge its responsibilities, the Task Force shall study the
available research pertaining to best practices for criminal investigations and
courtroom procedures, including without limitation: protocols for obtaining
identifications, expert testimony during trial, jury instructions, and any other area
pertaining to eyewitness identifications and testimony that can minimize the risk of
wrongful convictions.

The task force will issue a final report within 9 months, unless extended. The report will then be distributed to the district judges within the circuit.

The task force is comprised of 17 members: 4 CA3 judges (McKee, Smith, Shwartz, Restrepo), 6 district judges, a magistrate judge, a federal defender, a US Attorney, an FBI agent, a state AG, and two academics. McKee and EDPA Judge Goldberg are the co-chairs.

The announcement comes just weeks after the court’s en banc ruling in Dennis v. Secretary, in which the court affirmed habeas relief in a capital case and Chief Judge McKee wrote an extraordinary 54-page concurrence to “underscore the problems inherent in eyewitness testimony.”

UPDATE: the Court posted this press release, too.

New opinion — a public-sector-employment affirmance

Mancini v. Northampton Co. — civil / employment-civil rights — affirmance — Restrepo

The Third Circuit today affirmed a district court’s rulings in an employment dispute caused when new local Republican leaders fired a county solicitor who was a Democrat. At trial, the jury ruled in favor of the fired employee on her claims against the county but not those against the individual leaders. The court summarized the key issue thus:

This case requires us to consider whether there is an exception to the ordinary requirements of procedural due process when a government employee with a protected property interest in her job is dismissed as part of a departmental reorganization that results in the elimination of her position. We have not previously considered this so-called “reorganization exception.” We hold that a reorganization exception to constitutional procedural due process cannot apply as a matter of law where, as here, there is a genuine factual dispute about whether the reorganization was pretext for an unlawful termination.

The opinion’s introduction refers to the district judge below as “the able trial judge,” a generous tip-of-the-hat in an opinion authored by a judge who until this year sat in the same district.

Joining Restrepo were Fuentes and Chagares. Arguing counsel were Patrick Reilly of Gross McGinley for the appellee/cross-appellant and David Schwalm of Thomas Thomas & Hafer for the appellant/cross-appellee.

UPDATE: early news coverage here.

What the 2016 presidential election means for the Third Circuit

Much has been written about how the upcoming presidential election will impact the U.S. Supreme Court, but the election’s impact on the circuit courts has gotten much less attention. Liberal advocacy group Alliance for Justice posted this useful analysis back in May, and Russell Wheeler’s excellent research on circuit vacancies, such as here and here, also sheds light on what the election means for the circuits. [Update: also Matthew Yglesias’s interesting piece on Vox.com here.]

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.


The government confesses error and the Third Circuit reverses … after the defendant’s lawyer filed an Anders brief

The Third Circuit issued a remarkable unpublished opinion today in a criminal appeal, US v. Parsons, link here. The opinion is by Judge Barry, joined by Judges Fuentes and Shwartz.

I’m not sure I can tell the story any more clearly than the opinion does, so here it is:

In Anders, the Supreme Court emphasized that “[Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability.” 386 U.S. at 744. An attorney may seek permission to withdraw if he finds a case to be “wholly frivolous” after a “conscientious examination” of the record; such request must, however, “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. If the court agrees that the case is wholly frivolous, “it may grant counsel’s request to withdraw and dismiss the appeal,” but, “[o]n the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id.

* * *

In this case, counsel’s brief was, at least technically, inadequate under Anders. Although counsel listed the issue of “[i]nterpretation and application” of § 4A1.2(c)(1) in his statement of issues, he addressed the issue only in two footnotes that fail to explain why it was frivolous. (See Anders Br. at 9-10 n.2, n.3.) He likewise devoted only one sentence to the denial of a reduction for acceptance of responsibility, the second issue raised by Parsons in his pro se brief. (See id. at 19.) Simply stated, counsel failed to meaningfully deal with the two issues later raised by Parsons, such that we can be assured that he has considered them and found them “patently without merit,” see Marvin, 211 F.3d at 781; indeed, the Government itself acknowledges that a non-frivolous issue exists.

Parsons’ argument with respect to § 4A1.2(c) is, as the Government recognizes, non-frivolous. Section 4A1.2(c) provides that certain sentences, including sentences for a disorderly conduct offense, are included in the criminal history calculation only if “the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days” or if the prior offense was “similar to an instant offense.” Here, according to the PSR, Parsons’ 2006 disorderly conduct offense resulted in no punishment beyond the payment of fines and costs, and it is not similar to the instant firearms offenses. See U.S.S.G. § 4A1.2 cmt. n. 12(A). As the Government, to its credit, recognizes, this offense was erroneously counted, and the additional criminal history point bumped Parsons up into Criminal History Category V, resulting in a Guidelines range of 140 to 175 months. Had Parsons correctly been placed in Category IV, his Guidelines range would have been 121 to 151 months. His sentence, a total of 160 months’ imprisonment, could well have been lower had the Court calculated the correct Guidelines range.

The court vacated the sentence and remanded for resentencing without the erroneously-applied criminal history point.

As embarrassing appellate mistakes go, it doesn’t get much worse than filing an Anders brief and then having the court reverse under plain error. The opinion does not identify the attorney by name, but the docket indicates that the Anders brief was filed by Roland B. Jarvis, a Philadelphia lawyer appointed by the court. The AUSA praised by the court is Joseph LaBar.

I applaud the government and the court here. It would have been only human to pay less attention to the pro se brief after the defendant’s own lawyer had certified that the issues were all wholly frivolous, but instead the prosecutor and the judges here did their jobs.

I do have a concern about the court’s ruling, though. The court chose to remand now instead of appointing new counsel and allowing supplemental briefing, and it explained that it did so because “no one, including defense counsel in his effort to comply with the strictures of Anders, even obliquely refers to any potential issue as to the conviction itself.” Is the court saying it is confident that there are no other appealable errors, besides the one the pro se defendant found — and that the basis for this confidence is that no such errors were found by (1) the lawyer who filed the erroneous Anders brief, (2) the pro se defendant, or (3) the prosecution? If so, that confidence seems questionable.

And after the government confessed error but before today’s ruling, the defendant apparently asked the court to appoint new counsel for him, resulting in a clerk order which stated in part:

If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the Court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the Clerk to discharge current counsel and appoint new counsel. As appellant’s request for appointment of new counsel is an inherent part of the Court’s determination when presented with a case submitted pursuant to Anders v. California, 386 U.S. 738 (1967), no action will be taken on appellant’s request.

This order reinforces my uncertainty about whether remand for resentencing without appointment of counsel and supplemental briefing was the right disposition here.

Anyway, a very interesting case.


New opinion — divided panel rejects waiver argument and orders arbitration

Chassen v. Fidelity Nat’l Financial — civil / arbitration — affirmance — Smith

A divided Third Circuit panel today ruled in favor of a civil defendant seeking to compel individual arbitration (that is, non-class arbitration; the opinion refers to it as bipolar arbitration). The court held that the defendant did not waive its arbitration-clause defense — even though it did not raise the defense in two and a half years of expensive litigation below, and even though it could have but did not raise the arbitration defense to obtain class arbitration the whole time — because an effort to compel individual arbitration would have been futile under then-existing law. The majority ruled that the factors it previously had announced for deciding when a party waived an arbitration defense did not control when the sole reason for the delay in asserting the defense is futility.

Judge Rendell — who, as I’ve observed, has been a major force in the court’s recent en banc litigation — dissented. Her opinion began:

The majority’s opinion is flawed for a clear and obvious reason: it relies on caselaw that has no application here. Therefore, I must respectfully dissent.

In Muhammad v. County Bank of Rehoboth Beach, the New Jersey Supreme Court held that “the presence of the class-arbitration waiver in Muhammad’s consumer arbitration agreement render[ed] that agreement unconscionable.” 912 A.2d 88, 100 (N.J. 2006). Yet, despite the lack of a class arbitration waiver in the arbitration clauses here, the majority holds that a New Jersey court in 2009, at the outset of this case, would have found Muhammad controlling here. I reject that view, and urge you to read Muhammad and the actual arbitration clauses at issue here. Doing so will lead inexorably to one conclusion: this case is not Muhammad, and a motion by the Defendants in 2009 to compel arbitration thus would have been anything but futile. Moreover, the majority has expanded the concept of futility beyond what we as a court should recognize.

Seems like a good bet for a petition for en banc rehearing.

Joining Smith was Roth, with Rendell dissenting. Arguing counsel were Michael Quirk of William Cuker for the appellants and Michael O’Donnell of Riker Danzig for the defendant.


Fractured en banc court restores two felons’ gun rights

Suarez v. Attorney General — civil / 2nd Amendment

The en banc Third Circuit ruled today that the federal statute criminalizing gun possession by convicted felons violates the Second Amendment as applied to the two challengers here. It’s the court’s most closely divided en banc ruling since Chief Judge McKee became chief.

On the ultimate outcome, the court split 8 to 7 in favor of the challengers.  The 8 were Ambro with Smith and Greenaway, plus Hardiman with Fisher, Chagares, Jordan, and Nygaard. The 7 were Fuentes with McKee, Vanaskie, Shwartz, Krause, Restrepo, and Roth.

No one rationale commanded a majority of the court. As Eugene Volokh (whose work is cited repeatedly in today’s opinion) ably explains in a blog post here, Hardiman’s 5 embraced a broader view of the Second Amendment, Ambro’s 3 a narrower one.

It’s a fascinating vote split. The court’s most conservative judges voted together, but the moderate and liberal votes were more surprising, which reinforces a broader trend I flagged last year.

The 8-to-7 vote also invites some interesting what-ifs. Judge Rendell went senior over a year ago, and President Obama’s nomination of Rebecca Haywood has languished for almost six months now. If Rendell or Haywood were active judges today, would the en banc court have split down the middle, leaving no precedential decision? It’s possible.

Volokh writes that if the government asks the Supreme Court to grant certiorari, “it’s likely that the court will agree to hear the case.”

Arguing counsel were Patrick Nemeroff for the government, and Alan Gura of Gura & Possessky for the challengers.


New opinions — Bridgegate disclosure, taxpayer standing, and antitrust standing

NJ Media Group v. United States — civil — reversal — Jordan

The Third Circuit today vacated a district court order that had required disclosure of the names of the unidicted co-conspirators in the NJ Bridgegate scandal. The opinion explained, “Although the appeal arises out of a matter of high public interest, the issue presented is basic and undramatic.” The court ruled that a prosecution letter identifying the co-conspirators should be treated like criminal discovery, not a bill of particulars, and thus was not subject to public disclosure.

Joining Jordan were Ambro and Scirica. Arguing counsel were Jenny Kramer of Chadbourne & Parke for the appellant, Bruce Rosen of McCusker Anselmi for media groups seeking disclosure, and U.S. Attorney Paul Fishman for the government.

Early news coverage of the opinion by Ted Sherman on NJ.com is here.


Nichols v. City of Rehoboth — civil — affirmance — Fisher

A divided Third Circuit panel today held that a taxpayer lacked standing to sue because she failed to show any illegal use of taxpayer funds.

Fisher was joined by Rendell; Cowen dissented. Arguing counsel were David Finger of Finger & Slanina for the appellant and Max Walton of Connolly Gallagher for the appellees.


Hartig Drug Co. v. Senju Pharma. — civil / antitrust / class action — reversal — Jordan

The Third Circuit today ruled that a district court erred when it dismissed an antitrust class action suit under F.R.Civ.P. 12(b)(1) on standing grounds, holding that antitrust standing is not an issue of subject-matter jurisdiction. The appeal arose out of an antitrust suit alleging wrongful suppression of generic competition in the sale of medicated eyedrops. The winning argument was not made by the appellant, prompting the court to write, “Remarkably, Hartig neglects to address the argument at all, except to acknowledge that amici have raised it.” The opinion has some sharp words (“simply not so,” “attempt to change the discussion,” “wholly new argument”) for the appellees, too. Quite a victory for amici.

Joining Jordan were Ambro and Greenberg. Arguing counsel were Brent Landau of Hausfeld for the appellant and M. Sean Royall of Gibson Dunn for the appellee.


Addie v. Kjaer — civil — affirmance in part — Fisher

The Third Circuit largely upheld a district court’s rulings under Virgin Islands law granting pre- and post-judgment interest but denying attorney’s fees. The court ruled that certain prejudgment interest should have been paid at a statutory rate.

Fisher was joined by Krause and Roth. Arguing counsel were former Rendell clerk Robert Palumbos of Duane Morris for the appellants and Sherry Talton of Texas and Maria Hodge of the Virgin Islands for the appellees.

Tanker-spill case heading back to Third Circuit after $180M verdict

Linda Loyd has this story today on Philly.com, headlined “Judge makes $120M ruling against Citgo in massive 2004 Delaware River spill.” The case arose when a tanker ship struck an old anchor submerged near a refinery dock and spilled more than a quarter of a million gallons into the Delaware River. Loyd reports that the losing defendant has already filed a notice of appeal to the Third Circuit. The case is USA v. Citgo Asphalt Refining Company.

The Third Circuit decided an appeal in the case in 2013, captioned In re: Frescati Shipping, when it vacated a district court ruling in favor of the defendants in a 59-page slip op. that it amended three times. The 2013 opinion noted that future appeals would be referred to the same panel (Ambro, Greenaway, and O’Malley Fed. Cir. by designation).

New opinion — Court affirms denial of qualified immunity for teacher who let stranger take kindergartner

L.R. v. School Dist. of Phila. — civil rights — affirmance — Fuentes

A kindergarten teacher allegedly allowed a total stranger to remove one of his students from the classroom. According to the complaint, the stranger went right to the classroom and asked to take the student, the teacher asked the stranger to show identification and verification that the student had permission to leave school, and the stranger could not. Yet the teacher let his student leave with the stranger anyway, and later that day the stranger sexually assaulted the child. The child’s parent’s sued the teacher and the school district alleging denial of substantive due process, and the district court ruled that the teacher was not entitled to qualified immunity. Today, the Third Circuit affirmed: “we conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger.”

Joining Fuentes were Krause and Roth. Arguing counsel were Jeffrey Scott of Archer and Greiner for the teacher and district and Charles Becker of Kline & Specter, president-elect of the Third Circuit Bar Association, for the parent.

I shook my little fist for naught

I’m sorry to report that the Third Circuit this week denied panel and en banc rehearing in Coulston v. Superintendent. Back in June I blogged about the unpublished panel opinion in a long post entitled, “A Friday-morning shaking of my little fist against perceived injustice.” (I actually got so wound about it after my blog post that I did something I’ve never done before: I wrote poor Mr. Coulston and offered that he could tell the court I was willing to be appointed to do a rehearing petition for him, which he did, to no avail.)

Cert petition? Anyone?

En banc court — minus two judges listed as voted on rehearing, including the panel author — reverses in Chavez v. Dole Food

Chavez v. Dole Food — civil — reversal — Fuentes

The en banc Third Circuit today unanimously reversed a district court order dismissing a suit by Central American farmworkers over alleged pesticide exposure. The prior panel opinion had come out the other way, with Nygaard joined by Greenaway in the majority and Fuentes dissenting.

Needless to say, it is unusual to see a unanimous en banc ruling that reaches a different outcome than the panel majority did. So what happened? Two things, both interesting.

First, Greenaway switched sides. He joined Nygaard’s panel opinion in favor of Dole, but today he joins the en banc court ruling against Dole. He did not write separately to explain his switch.

Second, Nygaard did not participate. He wrote the panel opinion, and the order granting en banc rehearing stated he would participate, but the docket shows he did not participate in oral argument and he was not a member of the en banc panel today. Also, Hardiman was listed as participating in the en banc vote but was not on the en banc panel for argument or decision.

So, why did Nygaard and Hardiman not participate? Answer: I don’t know. Neither today’s opinion nor the docket entries say.

This is a case with a lot of blue-chip-corporation parties like Dow Chemical and Shell Oil, and it would not be surprising if some of the judges owned stock in one of them and thus had to recuse. Now, it would be surprising to me if such a conflict went unrecognized until after the en banc ruling. (But as I mentioned recently, during now-Justice Alito’s Scotus confirmation proceedings, then-Chief Judge Scirica said in 2005 that CA3 judges had been listed by mistake on en banc corams many times. That could explain well Hardiman but not Nygaard.)

For Nygaard, no potential financial conflicts jump out at me on a quick glance at his 2012 financial disclosure, the most recent of his posted on judicialwatch. But what matters is what he owned in 2016, not 2012, and that is not publicly available. Bottom line, if he recused after writing the panel opinion, I can’t tell why. (It does not appear to be health-related since, for example, his is sitting on argument panels next week.) In any event, his withdrawal is unusual.

As to Hardiman, he disclosed dividend income from Dow Chemical in his 2012 disclosure, also the most recent disclosure up on Judicialwatch, although that does not necessarily mean he still did at the time of this en banc case.

Anyway, I’ve gotten all sidetracked on the composition of the court here and haven’t said a thing about the substance of the opinion. From the introduction (footnote omitted):

Our resolution of this appeal is therefore threefold. First, we conclude that the Delaware District Court abused its discretion under the first-filed rule by dismissing the plaintiffs’ claims with prejudice. Second, we conclude that the Delaware District Court erred by refusing to transfer the plaintiffs’ claims against Chiquita Brands International to another forum. And third, we conclude that the timeliness dismissals entered by the Louisiana District Court do not create a res judicata bar to the plaintiffs’ Delaware suits. As these cases come to us today, there is a serious possibility that no court will ever reach the merits of the plaintiffs’ claims. More than twenty years after this litigation began, we think that outcome is untenable—both as a matter of basic fairness and pursuant to the legal principles that govern this procedurally complex appeal.

Joining Fuentes were McKee, Ambro, Smith, Fisher, Chagares, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. Arguing counsel were Jonathan Massey of Massey & Gail for the appellants and Andrea Neuman of Gibson Dunn and Steven Caponi (formerly) of Blank Rome for the appellees.

“Although we will affirm … we do so with some reluctance…. [T]he circumstances of this case appear to exemplify what can be described as a flaw in our system of justice”

Curry v. Yachera — civil rights — affirmance– Chagares

The quote that forms the title of this post comes from the introduction of today’s notable opinion upholding the dismissal of a civil rights complaint.

The court summarizes the facts underlying the suit like this (appendix cites and footnotes omitted):

In the fall of 2012, Curry read a newspaper article that stated there was an outstanding warrant for his arrest, related to a theft at a Wal-Mart store in Lower Macungie Township, Pennsylvania. Wal-Mart security employee Kerrie Fitcher identified Curry. Curry insists that he had never been in that Wal-Mart store. Curry called the Wal-Mart store and spoke to a security employee, John Doe, who refused to review the store surveillance video. Curry then called the Pennsylvania State Police and spoke to Trooper Brianne Yachera. Yachera informed Curry that he was going to jail and that the courts would “figure it out.”

On October 29, 2012, Curry was arrested and charged with (1) theft by deception and (2) conspiracy. Unable to afford bail, Curry was jailed. On November 14, 2012, while Curry was still in jail, he was charged with “theft by deception – false imprisonment” by Exeter Township Police Detective Richard McClure. This charge was separate and apparently unrelated to the charges brought by Yachera. Two months later, McClure met Curry in prison, admitted Curry was innocent of the November 14 charges, apologized, and said he would do whatever he could to help. In or about February 2013, McClure’s charges against Curry were dropped, but he remained in jail on the charges brought by Yachera. Curry was told he would need to wait until September 2013 for the case to proceed. During his imprisonment, Curry missed the birth of his child and lost his job. Curry feared losing his home and motor vehicle. He decided to plead nolo contendere to the remaining charges, theft by deception and conspiracy. Following his plea, he was released and returned home.

The court’s analysis begins with this remarkable passage (footnotes omitted):

The broader context of this matter is disturbing, as it shines a light on what has become a threat to equal justice under the law. That is, the problem of individuals posing little flight or public safety risk, who are detained in jail because they cannot afford the bail set for criminal charges that are often minor in nature. One recent report concluded that “[m]oney, or the lack thereof, is now the most important factor in determining whether someone is held in jail pretrial” and that “the majority of defendants cannot raise the money quickly or, in some cases, at all.” By way of example, in New York City in 2013, fifty-four percent of those jailed until their cases were resolved “remained in jail because they could not afford bail of $2,500 or less.” It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail. Further, those unable to pay who remain in jail may not have the “luxury” of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.

“Curry’s inability to post bail,” the court observed, “deprived him not only of his freedom, but also of his ability to seek redress for the potentially unconstitutional prosecution that landed him in jail in the first place.” The court denied the malicious prosecution claim because his conviction stood. The court did rule that his malicious prosecution claims should have been dismissed without prejudice because his claim will not accrue unless and until his conviction is reversed.

Joining Chagares were Fuentes and Greenberg. The case was decided without oral argument.


Auto-Owners Insurance Co. v. Stevens & Ricci — insurance — affirmance — Jordan

A divided Third Circuit panel affirmed a district court ruling in favor of the insurance company in a coverage dispute.

Joining Jordan was Hardiman; Greenaway dissented, arguing that the majority misapplied a rule against aggregation. Arguing counsel were David Oppenheim from Illinois for the appellant and Timothy Tobin from Minnesota for the appellee.


Court grants oral argument in forced-decryption appeal [updated]

Orin Kerr posted here today at Volokh Conspiracy that a Third Circuit panel of Judges Jordan, Vanaskie, and Nygaard will hear oral argument September 7 in an appeal involving Fifth Amendment self-incrimination limits on ordering a criminal suspect to decrypt his computer hard drives.

Back in June, Kerr had this thorough and interesting post explaining the core legal issue and expressing his hope that the Third Circuit rejects the Eleventh Circuit’s Fifth Amendment “foregone conclusion” analysis.

Update: here is news coverage of the oral argument by Chris Palmer in the Philadelphia Inquirer.

New opinions in three civil cases

Black v. Montgomery County — civil rights — reversal — Chagares

The Third Circuit today reversed a district court’s grant of summary judgment in favor of defendants in a remarkable civil rights suit, holding that the plaintiff was seized for purposes of her Fourth Amendment malicious-prosecution claim and that she stated a valid due process claim for fabricated evidence even though she was acquitted at trial. The case arose from what the plaintiff alleged was a badly bungled fire investigation and prosecution; the accused was found not guilty of arson after the jury deliberated less than 40 minutes.

Joining Chagares were Krause and Scirica. Arguing counsel for the appellant was Michael Schwartz of James, Schwartz & Associates; for the appellees, Carol Vanderwoude of Marshall Dennehey, Philip Newcomer of the Montgomery County Solicitor’s Office, and Claudia Tesoro of the Office of the Attorney General.


DePolo v. Board of Supervisors — civil — dismissal of appeal — McKee

The Third Circuit held that a ham radio operator’s federal suit challenging denial of permission to build a 180-foot radio tower (!) was precluded by his failure to appeal a prior adverse ruling by a township zoning appeals board.

Joining McKee were Ambro and Scirica. Arguing counsel were Fred Hopengarten of Massachusetts (whose solo telecom practice focuses on antenna and tower issues and whose website includes an image of his Third Circuit bar admission certificate) for the appellant, and Maureen McBride of Lamb McErlane and John Larkin of Gawthrop Greenwood for the appellees.


NY Shipping Assoc v. Waterfront Comm’n — affirmance — Nygaard

The Third Circuit upheld district court rulings upholding the NY Waterfront Commission’s power under an interstate compact to require non-discriminatory hiring policies.

Joining Nygaard were Fuentes and Roth (the case was argued on July 9, nine days before Fuentes went senior, so the panel composition comported with 3d Cir. IOP 3.1 even though all three judges were senior at the time the opinion issued). Arguing counsel for various appellants were Donato Caruso of New York and Kevin Marrinan of New York, and Peter Hughes of Ogletree Deakins; arguing counsel for appellees was Phoebe Sorial of the NY Harbor Waterfront Commission.

New opinions: a big immigration win for the government, and a little preemption circuit split

Castro v. U.S. D.H.S. — immigration — affirmance — Smith

The Third Circuit issued a blockbuster immigration ruling today, holding that (1) federal courts lack jurisdiction to review challenges to expedited removal orders, and (2) the statute depriving courts of such jurisdiction does not violate the Suspension Clause.

On the statutory issue, the court joined a majority of courts to address the issue, citing opinions from the Second, Fifth, and Ninth Circuits and rejecting opinions from the Ninth Circuit and two district courts.

On the Suspension Clause issue, the court admitted it was “very difficult.” The opinion summarized the issue thus:

Petitioners argue that the answer to the ultimate question presented on appeal – whether § 1252 violates the Suspension Clause – can be found without too much effort in the Supreme Court’s Suspension Clause jurisprudence, especially in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), and Boumediene v. Bush, 553 U.S. 723 (2008), as well as in a series of cases from what has been termed the “finality era.” The government, on the other hand, largely views these cases as inapposite, and instead focuses our attention on what has been called the “plenary power doctrine” and on the Supreme Court cases that elucidate it. The challenge we face is to discern the manner in which these seemingly disparate, and perhaps even competing, constitutional fields interact. Ultimately, and for the reasons we will explain below, we conclude that Congress may, consonant with the Constitution, deny habeas review in federal court of claims relating to an alien’s application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country.

Joining Smith were Hardiman and Shwartz. Hardiman also briefly concurred dubitante to express doubt about the opinion’s reasoning on the Suspension Clause issue. Arguing counsel were Lee Gelernt of the ACLU Immigrants Rights Project for the appellants and Erez Reuveni for the government. A large number of amici participated, represented by an impressive array of local and national counsel, and the opinion thanked amici for their valuable contributions.

Given its importance, the case is an obvious candidate for a petition for en banc rehearing, but the panel composition makes me suspect that finding a majority for rehearing will be difficult.

Update: Steve Vladeck has early commentary on the opinion in a post on his Just Security blog here. And it’s harsh commentary: “incredibly novel and misleading,” “simply nuts,” and “hopefully, a strong candidate for en banc review.”

Update2: Noah Feldman has this critical commentary (“The decision is wrong, and the U.S. Supreme Court should review it”) on Bloomberg View.

Rosenberg v. DVI Receivables XVII — civil — reversal — Ambro

Today the Third Circuit held that § 303(i) of the bankruptcy code does not preempt state-law claims predicated on the filing of an involuntary bankruptcy petition by non-debtors. The opinion creates a circuit split with the Ninth Circuit.

Joining Ambro were Jordan and Scirica. Arguing counsel were Lewis Pepperman of Stark & Stark for the appellants and Peter Levitt of Florida for the appellees.

The new 3CBA newsletter is out, featuring a tribute to Judge Sloviter

I just received the August 2016 issue of On Appeal, the newsletter of the Third Circuit Bar Association. The new issue features a warm tribute to Judge Dolores Sloviter, who recently took inactive status, by her former clerk Nancy Winkelman. Winkelman is now a top appellate practitioner at Schnader and President of the American Academy of Appellate Lawyers. Winkelman writes:

. . . I have been so grateful to work with and come to know this most extraordinary jurist: a brilliant intellect, with an extraordinary work ethic; a courage, strength, and independence born of upbringing, character, and necessity; a drive always for the best in herself and everyone around her; a deep commitment to justice and to the judicial system; and that unique and most precious combination of grit and heart.

And, just as Judge Sloviter saw something in me that others may not have seen thirty years ago, so she has given me the opportunity to see something in her. Like many brilliant women of her generation who would come to succeed in a male profession, circumstances required Judge Sloviter to develop a tough exterior. She is of the small cadre of women who were the first in their fields; who were the only women in the room for far too long; who were always surrounded by men who, even when they had good intentions (and many did not), could not possibly have left their prejudices and stereotypes at the door.


Appointed to the Third Circuit Court of Appeals by President Carter in 1979, Judge Sloviter was the first woman ever to serve as a judge on that Court. She was the first (and so far only) female Chief Judge of the Third Circuit. In fact, she is only the fourth woman in the entire country ever to serve as a Circuit Chief Judge at all. Judge Sloviter authored an astounding 808 precedential opinions in her almost 40-year tenure on the Court of Appeals, shaping the law in numerous areas, including antitrust and the First Amendment.

A fierce advocate for diversity and inclusiveness, as Chief Judge (a position she held from 1991 to 1998), Judge Sloviter created the ground-breaking Task Force on Equal Treatment in the Courts to examine racial and gender bias for the Third Circuit. She opened the Third Circuit Conference to all lawyers for the first time ever (a tradition that continues to this day). And she supported women and work-life balance in numerous ways, including offering part-time law clerk positions to working mothers.

It’s a lovely piece worth reading in full.

Also in this issue are detailed write-ups of State National by Reginald Sainvil of Reed Smith and Roberts v. Ferman by former Fisher clerk Devin Misour of Farrel & Reisinger.

The current On Appeal is not yet available on the 3CBA website, but you can download older issues at this link.

And if you practice in the Third Circuit and you’re not a 3CBA member yet, get on it. Dues are just $40, you can join here.

Circuit hiring staff attorneys to start next year

The Third Circuit today posted a hiring announcement on its website to hire four or more term staff attorneys. The term is one or two years (“firm commitment”) starting fall of 2017. Application closing date is October 10.

The announcement describes the positions thus:

In the Third Circuit, approximately thirty attorneys work with a dedicated administrative staff in a highly collegial environment. Term staff attorneys are a vital complement to our established group of supervisory attorneys and career attorneys. Term staff attorneys are hired at various levels of legal experience, and recent law school graduates work alongside and engage with attorneys with prior judicial clerkship or other professional experience. Our office has been a launching point for a wide range of careers nationwide, and many of our former staff attorneys have become leaders in public interest, private sector, and academic settings.

Primary staff attorney duties include:
• Developing expertise in habeas corpus, immigration, civil rights and constitutional law,
appellate jurisdiction, and federal civil and criminal procedure;
• Gaining familiarity with state and territorial laws of the Third Circuit;
• Drafting memoranda, per curiam opinions, and orders for the judges;
• Responding to questions from judges concerning individual cases, as needed; and
• Managing assigned cases.

The former Third Circuit staff attorneys I’ve met (a) are freakishly smart, and (b) have super-duper valuable insight into the court’s workings. These openings certainly will draw top-notch applicants.

New opinion — Third Circuit clarifies authentication of social media content

US v. Browne — criminal — affirmance — Krause

The lucid introduction to today’s opinion affirming in a criminal appeal:

The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence—a prerequisite to admissibility at trial. Appellant Tony Jefferson Browne was convicted of child pornography and sexual offenses with minors based in part on records of “chats” exchanged over Facebook and now contests his conviction on the ground that these records were not properly authenticated with evidence of his authorship. Although we disagree with the Government’s assertion that, pursuant to Rule 902(11), the contents of these communications were “self-authenticating” as business records accompanied by a certificate from the website’s records custodian, we will nonetheless affirm because the trial record reflects more than sufficient extrinsic evidence to link Browne to the chats and thereby satisfy the Government’s authentication burden under a conventional Rule 901 analysis.

The court appears to split with the Fourth Circuit over whether Facebook pages are self-authenticating, see slip op. 19 n.8. The opinion also addressed admissibility. It held that the chats were admissible as party-opponent admissions, except for one statement that should not have been admitted but the error was harmless.

Joining Krause were Fisher and Roth. Arguing counsel were Everard Potter for the government and Omodare Jupiter for the defendant.

What this world needs is more circuit blogs

When I started this blog in 2014, there weren’t any blogs quite like it. There still aren’t. Someone should start another!

When I was scheming about launching a Third Circuit blog, I was inspired by Tom Goldstein‘s Scotusblog. (The name at the top of the page, CA3blog, is a deliberate nod to Scotusblog.) I was inspired by Scotusblog in a few distinct ways:

  • Scotusblog is mind-bendingly good. It helped challenge me to try to make something that super-smart readers (you!) actually wanted to read.
  • I believe Scotusblog (along with Goldstein’s own practice) helped usher in the current era of Supreme Court specialists, and I hoped my blog could help do the same at the circuit level. Federal appellate specialists can do better work, and, well, the prevailing level of practice in the circuit courts has plenty of room to improve.
  • Scotusblog didn’t seem to hurt Goldstein’s career trajectory any, and selfishly I figured a blog might do me some good, too. I was a more-or-less unknown young lawyer, starting a solo practice far from where I went to law school and farther still from the circuit where I’d clerked. Yet here I was, dreaming of building something that no one else was delusional enough to try, a circuit-specialist solo practice. I hoped the blog would inch my delusion closer to reality.

I know I’m not the only one who has goals like that. And while it’s not for me to say whether I’ve made an inch of headway towards any those lofty aims, a few concrete signs of progress already: a cite in a Third Circuit opinion, quotes in the New York Times and Washington Post, and steady readership growth.

So, here’s hoping this blog will help to inspire someone out there to start something similar in another circuit. (Or here! Plenty of room!)

A notable non-precedential immigration case, highlighting an “unfortunate mistake” by government counsel

In a non-precedential opinion today in Chang-Cruz v. AG, the Third Circuit ruled in favor of an Ecuadoran citizen legally in the U.S. who argued that he’s eligible for cancellation of removal because his state convictions for drug-trafficking-related acts near a school were not aggravated felonies. Judge Krause wrote the opinion, joined by Judges Ambro and Nygaard.

Any pro-petitioner immigration ruling is noteworthy, but the end of today’s opinion is particularly interesting:

In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering “what effect, if any, Descamps has on this immigration case.” J.A. 619. Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal. These were issues well outside the scope of our remand. See Pareja v. Att’y Gen., 615 F.3d 180, 197 (3d Cir. 2010). Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in “obstructionism” by opposing the Government’s remand to the IJ to consider the plea transcript. See J.A. 879. It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation. We trust that this was an unfortunate mistake that will not be repeated.


New opinion — Third Circuit rejects copyright infringer’s appeal

Leonard v. Stemtech International — civil — affirmance, mostly — Shwartz

A “stem cell photographer” sued a nutritional-supplement company for copyright infringement. He took black-and-white photographs of stem cells through electron microscopes and then colored them in, at a time when few others were able to. The company wanted to use two of his pictures in its magazine but thought his $950 licensing fee was too high, so it sent him $500 and used the images, not just in its magazine but in many other marketing materials. After a trial, the jury returned a verdict in the photographer’s favor for $1.6 million. The company appealed the denial of its new-trial motion on secondary liability and various damages and fees grounds, and Leonard appealed the denial of prejudgment interest and other points. Today the Third Circuit affirmed on all grounds except that it vacated the order denying prejudgment interest. The court found many of the company’s arguments waived for failure to object below or develop them on appeal.

The slip opinion includes the two stem-cell images at issue. The Third Circuit very rarely includes visual images in the bodies of its opinions, but I think it’s a great idea and hope the court does it more often.

Joining Shwartz were Fuentes and Restrepo. Arguing counsel were Kathleen Kushi Carter of Hollins Law for the photographer and Jan Berlage of Gohn Hankey for the company.

Rendell’s role in Third Circuit en banc cases, and another look at whether the court uses en banc rehearing ideologically

I posted here about yesterday’s blockbuster capital-habeas en banc ruling in Dennis v. Secretary. Here are a couple thoughts on what Dennis can tell us about the dynamics of the court.

Rendell’s outsized role in en banc cases

Often en banc opinion assignments in the Third Circuit are just based on panel assignments — that is, if an en banc majority member wrote a panel opinion, then that judge normally writes the en banc majority opinion. But in Dennis no judge in the en banc majority was on the original panel, because all three panel members were en banc dissenters. So Chief Judge McKee (the ranking judge in the majority and thus the majority authorship assigner) had more latitude than usual in choosing who to assign the opinion to, and he picked Rendell. I see that as the latest sign of the great esteem in which she is held by her colleagues on the court.

Judge Rendell’s pivotal role in the current court’s en banc cases goes beyond yesterday’s case. The court has decided 4 en banc cases in the past 12 months (Lewis, Langbord, NCAA, and Dennis), and Rendell wrote the majority opinion in 3 of the 4! In the fourth, she wrote the dissent. Of the court’s 22 en banc cases decided since McKee became Chief in 2010, Rendell wrote for the court five times — more than any other judge — and wrote the lead dissent 4 other times — also more than any other judge.


Outlier-panel correction, revisited

In my big en banc-analysis post in May of 2015, I wrote:

Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

Four en banc cases have been issued since I wrote that, and 3 of the 4 effectively reversed the panel outcome. More interestingly, 2 of them look like what I said is rare, en banc majorities trumping outlier panels:

  • In Lewis, a panel majority of two Republican-nominated judges (Fisher with Chagares) issued a conservative ruling* (holding a criminal-trial error harmless). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and three Republican-nominated judges dissenting.
  • In Dennis, a panel of three Republican-nominated judges (Fisher with Smith and Chagares) issued a conservative ruling (denying capital habeas relief). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and four Republican-nominated judges dissenting.

* I’m using “conservative ruling” in these two bullets as shorthand for “ruling whose outcome conservatives traditionally favor.” Same idea with “liberal.”

What happened in Lewis and Dennis bears watching, but I still doubt it’s the new normal. Consider the other two en banc cases decided in the past year:

  • Langbord split the court’s Democratic-nominated judges, with four of them in the majority and three dissenting.
  • NCAA voting broke down non-ideologically, with liberal and conservative judges all in the majority and only Fuentes and Vanaskie dissenting.

There will never be enough en banc cases to draw robust conclusions from them about the court’s dynamics. The tiny sample size makes it impossible to tell the meaningful trends from the statistical blips.

Still, for appellate nerds, it’s fun to try.

En banc court upholds habeas relief in capital case, plus two divided panels and a sentencing affirmance

Another blockbuster August day today, with a big capital-habeas en banc ruling and three panel opinions. Over 300 pages of opinion today.

Dennis v. Secretary — capital habeas corpus — affirmance — Rendell

The en banc Third Circuit today affirmed habeas corpus relief for James Dennis, holding in a landmark habeas opinion that the prosecution suppressed evidence that effectively gutted its case and that the Pa. Supreme Court unreasonably applied Brady v. Maryland when it denied relief. The 2015 panel ruling (Fisher with Smith and Chagares) had ruled for the state.

Joining Rendell were McKee, Ambro, Fuentes, Greenaway, Vanaskie, Shwartz, and Krause, and by Jordan in part. McKee concurred “to underscore the problems inherent in eyewitness testimony and the inadequacies of our standard jury instructions relating to that evidence.” Jordan concurred in part and concurred in the judgment, noting:

Every judge of our en banc Court has now concluded that the Pennsylvania Supreme Court’s contrary determination was not only wrong, but so obviously wrong that it cannot pass muster even under AEDPA’s highly-deferential standard of review. In other words, it is the unanimous view of this Court that any fairminded jurist must disagree with the Dennis I court’s assessment of the materiality and favorability of the Cason receipt. Yet somehow a majority of the Pennsylvania Supreme Court endorsed Dennis’s conviction and death sentence. The lack of analytical rigor and attention to detail in that decision on direct appeal is all the more painful to contemplate because the proof against Dennis is far from overwhelming. He may be innocent.

Fisher dissented, joined by Smith, Chagares, and Hardiman, and Hardiman also authored a dissent that Smith and Fisher joined. Arguing counsel were Amy Rohe of Reisman Karron for Dennis and Ronald Eisenberg of the Philadelphia D.A.’s office for the state.


Watson v. Rozum — prisoner civil rights — reversal in part — McKee

A divided Third Circuit panel today ruled in favor of a prisoner alleging a First Amendment retaliation claim.

Joining McKee was Ambro; Ambro also concurred, explaining the court’s rejection of caselaw from the Fifth and Eighth Circuits and its disavowal of prior non-precedential circuit rulings. Hardiman dissented. Arguing counsel were Kemal Mericli of the Pa. A.G.’s office for the state and former Fisher clerk Ellen Mossman of Dechert for the prisoner.


NAACP v. City of Philadelphia — First Amendment — affirmance — Ambro

It’s unusual enough for the same panel to issue two precedential opinions on the same day, but it’s rare indeed for the same judge to dissent in both cases. But so it was here, where Hardiman again dissented from a McKee-Ambro majority. In this case, the majority affirmed a district court ruling that Philadelphia’s policy of banning non-commercial advertising at its airport violates the First Amendment.

Arguing counsel were Craig Gottlieb for the city and Fred Magaziner of Dechert (who clerked for Rosenn) for the challengers.


US v. Carter — criminal — affirmance — Shwartz

The Third Circuit affirmed a district court criminal sentence applying a sentencing enhancement for maintaining a stash house. The defendant had argued he did not maintain the stash house because he did not own or rent the house and did not pay for its operation from his own funds.

Joining Shwartz were Fuentes and Restrepo. The case was decided without oral argument.

New opinions — habeas corpus relief and three affirmances

OFI Asset Management v. Cooper Tire — civil — affirmance — Jordan

In a 51-page opinion, the Third Circuit today rejected an appellant’s challenge to the district court’s management of a complex securities-fraud class action. The court criticized the clarity appellant’s underlying complaint, then wryly observed:

Now that OFI [the plaintiff-appellant] has come to us with the same kind of broad averments that drove the District Court to demand specificity, we find ourselves more than sympathetic to that Court’s position.

The court also rejected a long list of intensely factbound substantive arguments.

Joining Jordan were Ambro and Scirica. Arguing counsel were James Harrod of Bernstein Litowitz for the appellants and Geoffrey Ritts of Jones Day for the appellees.


Goldman v. Citigroup Global — civil — affirmance — Jordan

The Third Circuit affirmed dismissal of a securities suit for lack of subject-matter jurisdiction, rejecting the plaintiffs’ arguments under Grable & Sons v. Darue Engineering that the court had jurisdiction despite the absence of a federal cause of action. The court refused to be bound by language in a prior precedential opinion such “a summary and unexplained jurisdictional ruling” where jurisdiction was not in dispute has no precedential effect. The court also rejected the appellants’ argument that an arbitration panel’s manifest disregard for the law created a federal-question jurisdictional hook.

Joining Jordan were McKee and Roth. Arguing counsel were Richard Gerace for the appellants and Brian Feeney of Greenberg Traurig for the appellees.


Dempsey v. Bucknell University — civil rights — affirmance — Krause

College student Reed Dempsey was arrested after another student accused him of assaulting her. The affidavit of probable cause accompanying the criminal complaint “recklessly omitted” certain facts. After the charges were later dropped, Dempsey brought a civil rights suit alleging that the arrest violated his Fourth Amendment rights.

Today, the Third Circuit affirmed summary judgment against Dempsey because, even considering the omitted facts, a reasonable jury could not find lack of probable cause to arrest. The court rejected Dempsey’s argument that, in analyzing a probable cause issue at summary judgment, a court must ignore unfavorable disputed facts. It held that, “when a court determines that information was asserted or omitted in an affidavit of probable cause with at least reckless disregard for the truth, it must perform a word-by-word reconstruction of the affidavit.” It ruled that information was recklessly omitted, reconstructed the affidavit to include it, and held that the any reasonable juror would find that the reconstructed affidavit established probable cause.

Joining Krause were Vanaskie and Shwartz. Arguing counsel were Dennis Boyle (formerly) of Fox Rothschild for Dempsey and James Keller of Saul Ewing for the defendants.


Brown v. Superintendent SCI Greene — habeas corpus — reversal — Ambro

The introduction of today’s opinion granting habeas corpus relief:

This case has a familiar cast of characters: two co-defendants, a confession, and a jury. And, for the most part, it follows a conventional storyline. In the opening chapter, one of the defendants (Miguel Garcia) in a murder case gives a confession to the police that, in addition to being self-incriminating, says that the other defendant (Antonio Lambert1) pulled the trigger. When Lambert and Garcia are jointly tried in Pennsylvania state court, the latter declines to testify, thereby depriving the former of the ability to cross-examine him about the confession. The judge therefore redacts the confession in an effort to comply with Bruton v. United States, 391 U.S. 123 (1968). As a result, when the jury hears Garcia’s confession, Lambert’s name is replaced with terms like “the other guy.” The idea is that the inability to cross-examine Garcia is harmless if the jury has no reason to think that the confession implicates Lambert.

During closing arguments, however, there is a twist when the prosecutor unmasks Lambert and reveals to the jurors that he has been, all along, “the other guy.” Now, instead of a conclusion, we have a sequel. Based on a Sixth Amendment violation caused by the closing arguments, we conclude that Lambert is entitled to relief. We therefore remand so that the District Court can give Pennsylvania (the “Commonwealth”) the option either to retry or release him.

In holding that the Bruton error was not harmless, the court noted that the prosecution’s key witness had flaws and rejected the state’s argument that error was harmless because the jury already knew about these other flaws and believed the witness anyway.

Joining Ambro were Krause and Nygaard. Arguing counsel were Ariana Freeman of the EDPA Federal Community Defender for Brown and Susan Affronti of the Philadelphia DA for the state.

New opinions — a rare plain-error reversal of a criminal sentence, and an expansion of disabilities-suit exhaustion

US v. Dahl — criminal — reversal — Scirica

The Third Circuit today held that it was plain error for the district court to sentence a criminal defendant as a sex-offender recidivist under USSG § 4B1.5. The district court had focused on the actual conduct underlying the defendant’s prior convictions in deciding whether his prior crimes qualified as sex offense convictions, but the Third Circuit held that courts are required instead to apply the categorical approach, focusing on whether the elements of the prior crime necessarily qualify, just as in the armed-career-criminal-enhancement context.

The court disavowed dicta from its 2012 ruling in Pavulak purporting to apply a modified-categorical approach. It reversed under plain error, even though it was undisputed that this defendant’s prior acts would have qualified as sex offenses, stating, “We generally exercise our discretion to recognize a plain error in the misapplication of the Sentencing Guidelines.”

Joining Scirica were Chagares and Krause. Arguing counsel were Brett Sweitzer of the Federal Community Defender in Philadelphia for the defendant and Bernadette McKeon for the government.


S.D. v. Haddon Heights Bd. of Educ. — civil / education / disability — affirmance — Greenaway

The Individuals with Disabilities Education Act is one of many constitutional or statutory protections against disability-related discrimination. The IDEA requires plaintiffs to administratively exhaust their claims before they can file suit. In its 2014 ruling in Batchelor, the Third Circuit held that the IDEA exhaustion requirement applies to claims that are raised under other statutes but which arise from rights explicitly protected by the IDEA. Today, the court extended Batchelor “narrow[ly]” to hold that IDEA’s exhaustion requirement also applies to non-IDEA claims that are “educational in nature and implicate services within the purview of the IDEA,” even when they “do not . . . arise from their enforcement of rights explicitly under the IDEA.”

Joining Greenaway were Jordan and Hardiman. Arguing counsel were Sarah Zuba of Reisman Carolla for the appellants and William Donio of Cooper Levenson for the appellee.

Three new opinions — antitrust, criminal sentencing, and prisoner civil rights

It’s mid-August, so clerkships are ending and opinions are issuing thick and fast. Three more today, including a significant prisoner-rights opinion.

Deborah Heart & Lung Ctr. v. Virtua Health — civil / antitrust — affirmance — Roth

A dispute between two health care providers over patient referrals led one of them to bring an antitrust suit against the other. The district court ruled for the defendant, and today the Third Circuit affirmed. The opinion begins, “In antitrust suits, definitions matter,” and the court found that the plaintiff failed to meet its own undisputed definitions of the relevant products and markets. The court stated that it wrote in order to clarify the plaintiff’s burden under Section 1 of the Sherman Act when the plaintiff doesn’t allege that the defendants have market power: such plaintiffs must show anti-competitive effects on the market as a whole.

Joining Roth were Fuentes and Krause. Arguing counsel were Anthony Argiropoulos of Epstein Becker for the appellant and Philip Lebowitz of Duane Morris for the appellees.

US v. Jones — criminal — affirmance — Hardiman

When defendants commit a crime while they are on supervised release, they get a new, revocation sentence, and the length of that sentence depends on the seriousness of the original offense. But what if the seriousness of the offense has changed between the time of the original conviction and the time of the revocation sentencing?

Jermaine Jones was sentenced back in 2000 as an armed career criminal. Since that time, the Supreme Court decided cases that Jones says would make him ineligible to be sentenced as an armed career criminal today. So when Jones violated the terms of his supervised release and faced revocation sentencing, the sentencing court had to decide how to calculate his revocation sentence now–as a career criminal or not? Jones argued that he should be sentenced today based on how his original offense would be classified today; it would be unconstitutional to sentence him as an armed career criminal now, so it would be wrong to classify him now as an armed career criminal when imposing a revocation sentence. The government argued he should be sentenced today based on how his offense was classified at the time.

Today, the Third Circuit agreed with the government and affirmed, holding that it was correct to classify Jones as an armed career criminal for purposes of calculating his revocation sentence.

Hardiman was joined by Smith (Sloviter also had been on the panel before she assumed inactive status). The case was decided without oral argument.


Parkell v. Danberg — prisoner civil rights — reversal in part — Chagares

A Delaware inmate fell and seriously injured his elbow. In the suit he eventually filed, he alleged a disturbing year-long ordeal of mistreatment and neglect by prison guards and health-care staff. He also alleged that his Fourth Amendment rights were violated by three-times-daily visual body cavity searches even though he had no contact with anyone. The district court granted summary judgment for the defendants.

Today in a 38-page opinion the Third Circuit reversed summary judgment on the Fourth Amendment cavity-searches claim, holding that the Fourth Amendment gives inmates a “very narrow” right to bodily privacy and that the prisoner here may be able entitled to prospective injunctive relief. The court affirmed summary judgment on his Eighth Amendment conditions-of-confinement and deliberate-indifference claims, as well as his effort to recover money damages on his Fourth Amendment claim, essentially because the pro se inmate had failed to marshal enough proof about who was actually responsible.

Joining Chagares were Fisher and Cowen. Arguing counsel for the inmate were Suzanne Bradley and former Barry clerk Brendan Walsh of Pashman Stein, who the court thanked for the quality of their pro bono representation. Counsel for the defendants were Devera Scott of the Delaware AG’s office and Chad Toms and Daniel Griffith of Whiteford Taylor.

New opinion — Third Circuit affirms denial of class certification in suit alleging that Widener law school advertised misleading graduate-employment stats

Harnish v. Widener Univ. School of Law — civil / class action — affirmance — Chagares

Six recent graduates of Widener University School of Law filed a class action against the law school, alleging:

Between 2005 and 2011, Widener reported that 90-97% of its students were employed after graduation. These numbers were widely and deliberately advertised in print and online publications, along with oral presentations, targeting prospective students. But in reality, only 50-70% of Widener graduates ended up in full-time legal positions, which Widener knew.

They alleged that these misleading employment statistics let Widener charge higher tuition. The district court denied class certification, finding that common questions did not predominate and that the named plaintiffs’ claims were not typical of the proposed class, and the plaintiffs filed for interlocutory review.

Today, the Third Circuit affirmed. The court rejected the plaintiffs’ argument that the district court’s predominance review was too demanding, stating that a court’s pre-certification predominance analysis must be rigorous and must consider the merits to the extent of predicting whether the class-wide evidence on the predominant issues will be sufficient to win. The court ruled that the plaintiffs failed predominance because their damages theory was non-cognizable under applicable state law. Although the court agreed with the plaintiffs that the district court mistakenly focused on the fact that graduates got fulltime legal jobs, it found the error harmless.

Joining Chagares were Krause and Barry. Arguing counsel were David Stone of Stone & Magnanini for the plaintiffs and Thomas Quinn of Wilson Elser for the law school.



New opinions — Cosby unsealing appeal dismissed as moot, plus a civil rights attorney-fees reversal

Constand v. Cosby — civil / justiciability — dismissal — Ambro

Sometimes I can’t summarize a case more clearly than the opinion does itself. The problem occurs frequently with Ambro opinions. To wit:

William H. Cosby, Jr., appeals the District Court’s order unsealing certain documents that reveal damaging admissions he made in a 2005 deposition regarding his sexual behavior. There was no stay of that order, and the contents of the documents received immediate and wide publicity. While the parties dispute whether the District Court properly balanced the public and private interests at stake in unsealing the documents, we must decide at the outset whether Cosby’s appeal has become moot due to the public disclosure of their contents. The Associated Press (the “AP”) argues in favor of mootness because resealing the documents after they have already become public will have no effect. Cosby claims this is not the case for two primary reasons, as resealing the documents would (1) at least slow the dissemination of their contents and (2) might affect whether they can be used against him in other litigation. For the reasons that follow, we conclude that the appeal is moot.

Interestingly, the opinion relies in part on the results of a Google search performed the Friday before the opinion issued, including what looks to me like the first-ever circuit citation to Deadspin.

The court in a footnote expressed “serious reservations” about the district court’s reasoning that unsealing the documents was supported by Cosby’s image as a “public moralist,” a phrase the court described as “vague and undefined” and having “no basis in our jurisprudence.”

Joining Ambro were Smith and Krause. Arguing counsel were George Gowen III of Cozen O’Connor for Cosby and Gayle Sproul of Levine Sullivan for AP.


Raab v. Ocean City — civil / attorney’s fees — reverse in part — Chagares

A two-judge Third Circuit panel today held that a settling civil-rights plaintiff can be a prevailing party eligible to recover attorney’s fees where the district court dismissed the suit sua sponte in an order incorporating and retaining jurisdiction over the private settlement, even though the district court entered no consent decree and apparently did not review the settlement before entering its order.

Joining Chagares was Restrepo; Van Antwerpen was on the panel when the case was orally argued but died before the opinion issued. Arguing counsel were Paul Rizzo of DiFrancesco Bateman for the plaintiff, A. Michael Barker of Barker Gelfand for one defendant, and Thomas Reynolds of Reynolds & Horn for another defendant.

New CA3blog feature: case tags

Regular readers have probably noticed that the past couple weeks some of my new-opinion posts have been less prompt than usual. I’ve been out of the office on vacation, and while my Third Circuit love continued unabated, there were fewer days where I was staring at the circuit’s opinion page at 12:31 p.m., hitting the refresh button over and over.

Anyway, one good thing to come out of the time away was I had a small idea for how to make the blog better: case tags. Case tags are a way to make it easier for readers (and for me) to find different categories of cases I’ve posted about. There are tags for different substantive-law areas: civil, criminal, agency, bankruptcy, habeas, immigration, prisoner rights, tax. There are tags for different case outcomes: reversals, dissents, concurrences etc. And tags for circuit splits, en bancs, major cases, Supreme Court and cert. Plus, for the heck of it, there are tags to keep track of my research posts and posts that got linked on How Appealing.

These new tags show up at the bottom of posts (but only when viewed on a computer browser, not a smartphone or tablet). To pull up other CA3blog posts with the same tag, just click on the tag itself. All the tags are listed in the bar on the right side of the screen, too, also hyperlinked to any tagged posts.

I went back and added tags for all posts since the start of the year. When I get a chance I’ll tag older posts too, but CA3blog now has over 500 posts so that won’t be a small project.

I always welcome input about the blog, so if you have any requests or ideas for how to make it better just post a comment or email me.


New opinion — Third Circuit affirms a white-collar conviction and sentence in Judge Restrepo’s first published opinion

US v. Miller — criminal — affirmance — Restrepo

The Third Circuit on Friday affirmed in a white-collar criminal appeal, holding that the district court correctly applied the ‘investment adviser’ offense-level enhancement to an unregistered investment adviser. The court also found no plain error where the government promised to recommend a lower offense level and then repeatedly requested that level but also stated when pressured by the sentencing judge that a higher level would be reasonable. Finally, the court rejected the defendant’s challenge to the substantive reasonableness of his 120-month sentence. The opinion, Judge Restrepo’s first published opinion as a Third Circuit judge, is a model of directness and clarity.

Joining Restrepo were Fuentes and Chagares. The case was decided without oral argument.

“The Third Circuit’s Supreme Court Scorecard”

Donald Scarinci of Scarinci Hollenback in New Jersey yesterday posted this column, whose title is the title of this post, on PolitickerNJ.com. Scarinci concludes that the Third Circuit’s high-court results this past term were “average” for its own three cases and “weren’t stellar” for other circuit-split cases in which the Third Circuit had taken a side.

New opinion — Third Circuit affirms denial of ineffective-assistance claim where trial counsel raised the issue only in a footnote

Nguyen v. Attorney General — habeas corpus — affirmance — Greenberg

The Third Circuit today affirmed the denial of habeas corpus relief in a case where the prisoner argued his trial counsel was ineffective for raising a speedy-trial issue only in a letter-brief footnote. The court noted its intimate familiarity with the (New Jersey) state court’s procedures and its certainty that those courts would view the footnote as sufficient to preserve the legal issue, and accordingly it held that counsel’s performance was not deficient. The court also rejected the prisoner’s strained argument that the state courts had found as fact that counsel had not raised the speedy-trial issue.

The opinion’s holding and its core reasoning both seem sound, but I wonder about some of the language. The opinion says at pages 3 and 20 that it reviewed the ineffective-assistance claim through a “doubly deferential” lens. In habeas cases, this double deference refers to the interplay of (1) the Strickland ineffective-assistance standard with (2) the 28 USC 2254(d) limitation on relief for claims adjudicated on the merits in state court. But here the state court denied the claim on prejudice grounds only (see op. p. 22, which states “District Court took no position” but presumably means ‘state court took no position,’ compare p.15), while the Third Circuit denied relief on deficient-performance grounds only, so the 2254(d) limitation on relief did not apply. So the “doubly deferential” language seems out of place here and I hope it does not create confusion in future cases.

Joining Greenberg were Ambro and Jordan; Ambro also concurred separately. Arguing counsel were Jonathan Edelstein of Edelstein & Grossman for the prisoner and James McConnell for the state.

Three new opinions, featuring two judges writing separately on substantial standing and waiver issues

Freedom From Religion Foundation v. New Kensington Arnold S.D. — civil / First Amendment —  reversal in part — Shwartz

For the past 60 years, a public high school in Pennsylvania has a had a granite monument on school grounds inscribed with the Ten Commandments. A student, a parent, and a group dedicated to the separation of church and state sued the school, alleging that the monument violated the Establishment Clause, but the district court dismissed the suit on standing and mootness grounds. Today, the Third Circuit reversed in part, holding that the parent had standing because she had direct contact with the monument and remanding to determine whether the parent was a member of the group.

Joining Shwartz were Smith and Hardiman; Smith concurred dubitante in a lengthy opinion explaining his doubt that a claim for nominal damages should suffice to confer standing or overcome mootness.

Arguing counsel were Marcus Schneider of Steele Schneider for the appellants, Anthony Sanchez for the school district, and Mayer Brown associate Charles Woodworth for amicus.


NLRB v. Fedex Freight — labor — petition denied — Scirica

A group of Fedex Freight drivers voted to unionize but Fedex refused to bargain with them, arguing that another group of employees had to be included, too. The NLRB ruled against Fedex and Fedex filed a petition for review. Today, a divided Third Circuit panel denied the petition for review. Apart from the merits issues, the majority and concurring opinions feature an important back-and-forth about when cursory presentation of an argument in district court will result in waiver on appeal.

Joining Scirica was Ambro; Jordan concurred in part and concurred in the judgment, explaining his view that Fedex waived one of its central arguments below by making it only in passing in a footnote. Arguing counsel were Milakshmi Rajapakse for the NLRB and Ivan Rich Jr. for Fedex.


US v. Stevenson — criminal — affirmance — Hardiman

The Third Circuit today affirmed a criminal defendant’s conviction and sentence, rejecting a series of challenges including his argument that the dismissal of the charges against him for a speedy-trial violation should have been with prejudice, not without. The court also held that indictment defects are subject to harmless error analysis, overruling its own prior precedent based on intervening Supreme Court precedent and splitting with the Ninth Circuit.

Joining Hardiman were Smith and Shwartz. The case was decided without argument.

New Jersey clobbered in sports-betting en banc

NCAA v. Governor — civil — affirmance — Rendell — en banc

The en banc Third Circuit today rejected New Jersey’s effort to legalize sports betting, holding that the effort violated the Professional and Amateur Sports Protection Act and that PASPA did not violate constitutional anti-commandeering principles. The en banc ruling came out the same way as the earlier panel ruling.

A couple quick observations.

First, New Jersey got pasted. They came into en banc rehearing with reason to be fairly confident about two votes (Fuentes and Vanaskie, the dissenters from Christie I and the Christie II panel), so they needed to pick up another 5 votes for an en banc majority. They picked up zero. Their position was built around business and federalism, but they failed to pick up a single Republican-nominated judge. For New Jersey and for state-sports-gambling advocates, today’s outcome was a disaster.

Second, there was some speculation last month by prominent legal experts (here and here) that the court’s slowness in issuing the opinion gave reason to think New Jersey would win. That speculation proved badly off the mark.

New Jersey reportedly will to petition for Supreme Court review, but one supporter admits it’s a “long shot.” Indeed.

New opinion — Third Circuit rejects challenge to gas pipeline permits

Delaware Riverkeeper Network v. Secretary — environmental — petition denial — Roth

The Third Circuit today rejected environmentalist petitioners’ challenges to permits for interstate natural gas pipelines in New Jersey and Pennsylvania. The court also rejected various justiciability and sovereign immunity arguments raised by the respondents.

Joining Roth were Greenaway and Scirica. Arguing counsel were Aaron Stemplewicz of the Delaware Riverkeeper Network and Edward Lloyd of Columbia Law School for the environmentalist petitioners, Joseph Cigan III and Lewin Weyl for the state agency respondents, and John Stoviak of Saul Ewing and Christine Roy of Rutter & Roy for the industry respondents.

New opinion — a remarkable career-offender-sentencing opinion

US v. Rengifo — criminal — affirmance — Roth

The Third Circuit on Friday embraced an exceptionally aggressive interpretation of the career-offender sentencing provision, affirming a defendant’s career-offender sentence without oral argument.

Under the US Sentencing Guidelines, a defendant can be sentenced as a career offender only if he has two qualifying prior convictions. One way a conviction can qualify — the way at issue in this case — is if it resulted in a “sentence of imprisonment exceeding one year and one month.”

One of Hector Rengifo’s two prior convictions was possession with intent to distribute marijuana. The sentence he received for this state conviction was “time served to 12 months.” Since 12 months plainly does not exceed one year and one month, the prior conviction doesn’t qualify and Rengifo isn’t a career offender, right? Wrong.

It turns out that Rengifo was released on parole after serving 71 days of the time-served-to-12-months sentence. Then his parole was revoked, he (as the opinion awkwardly puts it) “was sentenced to the remaining 294 days of the original sentence,” and he served another 120 days. He was released on parole again, revoked again, and “sentenced to the remaining 174 days of his sentence.” In the end he served his full original sentence, and nothing more. By “nothing more,” I’m referring to the fact that, in some jurisdictions, defendants who violate parole get additional time tacked onto their sentences for the parole-violating acts — revocation sentences, not just revocations. That’s not what happened here: Rengifo served 365 days. So, still not a sentence “exceeding one year and one month,” right? Wrong.

The government argued that, for career-offender-calculation purposes, Rengifo’s sentence was 365 days (the original max sentence) plus 294 days (the time he served after being released on parole the first time). The court rejected this argument — instead adopting a career-offender-calculation methodology it described as “harsher”:

[T]he correct total of Rengifo’s sentence of imprisonment is 833 days, which consists of the maximum imposed original sentence of 365 days, plus the maximum imposed sentence for the first revocation of 294 days, and plus the maximum imposed sentence for the second revocation of 174 days.

Holy cow!

The court rejected Rengifo’s due-process argument that this triple counting was double counting, and it rejected his rule-of-lenity argument because it found the career-offender guideline and application notes unambiguous. It relied mainly on USSG 4A1.2k n. 11, which says, “[i]f the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned.”  I don’t see how it’s not at least ambiguous whether “sentence imposed upon revocation” means a new sentence added to the underlying sentence for the parole-violating acts.

Joining Roth were Fuentes and Krause. The case was decided without oral argument.

Still more on Javier — rehearing and publication timing

I posted yesterday about Javier v. AG, explaining my view that the opinion hadn’t addressed a key question, and that the answer to that question might cast doubt on the holding. Any time I express doubts about a panel opinion, I’m interested to see how things play out as far as rehearing  — will it be sought, will the rehearing petition raise arguments along similar lines as my post, how will the court rule?

But, in this case, the court already denied rehearing. Recall that Javier originally was issued back in June as non-precedential. Javier filed for panel and en banc rehearing, two days after the government filed to publish the opinion. The court denied panel and en banc rehearing on July 7, almost a month before the panel re-issued the opinion as precedential.

Which raises a question interesting to appellate procedure nerds — did the non-panel judges who voted to deny rehearing en banc know at the time they voted that the opinion would be precedential? Should it matter? Do judges casting en banc votes scrutinize precedential opinions more closely? I think they should, and I bet many do.

Now, I don’t know what internal procedures the Third Circuit follows when petitions for rehearing and motions to publish are both pending, and I’m not suggesting that anyone did anything wrong here.

But in my view the better practice would be for a panel to rule on the motion to publish and issue the precedential panel opinion before the court votes on the en banc rehearing petition. (I recognize this might require some tweaking of IOP 9.5.) En banc rehearing votes should be — and should appear to be — fully informed and free of any potential for manipulation by the panel.

New opinion — can the government deport you for threatening to slap someone? [updated]

Javier v. AG — immigration — deny and dismiss — Greenaway

At the government’s request, the Third Circuit today issued as precedential an opinion it previously had issued as non-precedential,  holding that a conviction under Pennsylvania’s terroristic-threats statute (18 Pa Cons. Stat. 2706(a)(1)) categorically qualifies as a crime involving moral turpitude to support removal. The statute makes it a crime to “communicate[], either directly or indirectly, a threat to: [] commit any crime of violence with intent to terrorize another.” The court rejected the petitioner’s argument that, because “any crime of violence” includes simple assault and because simple assault is not turpitudinous, therefore the statute included non-turpitudinous conduct. The court reasoned that the turpitude derives from the intent to terrorize. The opinion disagreed with a 2010 non-precedential opinion, Larios v. AG, 402 F. App’x 705 (3d Cir. 2010) (Jordan, joined by Fuentes and Aldisert).

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument.


The title of my original post about today’s opinion in Javier was, “can the government deport you for threatening to slap someone?”

The court’s answer to that question is that, yes, you can be deported for threatening to slap someone, even though you can’t be deported for actually slapping someone, because an element of a conviction for threats is intent to terrorize.

But the Javier opinion’s reasoning contains a serious gap, in my view: does “intent to terrorize” require anything more, under Pennsylvania law, than ‘intent to make the person think you actually will assault them’? Because, if it doesn’t, then I see no sense in saying assaults aren’t categorically turpitudinous but mere threats to assault are. After all, we’d all agree that hitting someone is worse than making them afraid that you’re going to hit them, no?

I’m not an expert on Pennsylvania criminal law, so I don’t know if “intent to terrorize” requires more than the fear that would result from any believed threat of assault, but the opinion’s failure to discuss the point is concerning.

New opinions — an en banc ruling in the Double Eagle gold coins case, plus an immigration case

Langbord v. US Dept. of the Treasury — civil — affirmance — Hardiman

The en banc Third Circuit ruled that the government was allowed to keep 10 extremely rare and valuable Double Eagle gold coins it seized from the family that had handed them over for authentication. Previously a divided panel (Rendell and McKee with Sloviter dissenting) had ruled for the family. It’s an unusual en banc case in that covers a dizzying list of appellate issues, many of them fact-bound.

The court split 8+1 to 3. Joining Hardiman were Ambro, Fuentes, Smith, Fisher, Chagares, Vanaskie, and Shwartz. Jordan concurred in part and concurred in the judgment, describing the Mint’s strategy of claiming the coins without judicial authorization as “a bad idea.” Rendell with McKee and Krause dissented, criticizing the majority’s reasoning as “at best cryptic and, at worst, sets an incorrect and dangerous precedent that would allow the Government to nullify CAFRA’s provisions at will.”

Arguing counsel were Barry Berke for the family and Robert Zauzmer for the government.

An interesting and odd case.


Sunday v. AG — immigration — petition denied — Chagares

The Third Circuit held that the Immigration and Nationality Act does not grant the Attorney General authority to grant a waiver of inadmissibility, and it held that removal cannot be unconstitutionally disproportionate punishment because it is not punishment.

Joining Chagares were Fisher and Barry. Arguing counsel were Keith Whitson of Schnader Harrison in Pittsburgh for the petitioner and Andrew Oliveira for the government.

New opinion — Senator Menendez’s alleged actions not protected from prosecution

US v. Menendez — criminal — affirmance — Ambro

The Third Circuit rejected U.S. Senator Robert Menendez’s appeal from the denial of his motion to dismiss the indictment against him. Menendez (D-NJ) is charged with accepting gifts from a Florida doctor whom his office assisted in various ways. Because the charged acts were “essentially lobbying on behalf of a particular party,” the court rejected his argument that his actions are protected from prosecution by the Speech or Debate Clause, but the court also rejected the government’s position that the clause does not extend to legislative attempts to influence executive actions.

Joining Ambro were Jordan and Scirica. Arguing counsel were Abbe Lowell of Chadbourne & Parke for the Senator and Peter Koski for the government.

UPDATE: AP reports on 9/13 that the Court denied en banc rehearing.

New opinion — prison’s failure to timely respond to an inmate’s grievance opens door to the inmate’s federal suit

Robinson v. Superintendent — prisoner civil rights — reversal — Hardiman

A unanimous Third Circuit panel today held that a  Pennsylvania prison’s repeated failure to respond to an inmate’s grievance rendered its administrative remedies “unavailable” under the Prison Litigation Reform Act, reversing the district court and allowing the inmate’s civil-rights suit to proceed. The court explained:

The District Court concluded that SCI Rockview’s * * * response to Robinson—which was provided more than four months late and six weeks after Robinson filed suit, and did not even address the correct incident— rendered the prison’s administrative remedies “available” to him under the PLRA. We disagree.

The opinion had some pointed words for the prison:

If prisons ignore grievances or fail to fully investigate allegations of abuse, prisoners will feel disrespected and come to believe that internal grievance procedures are ineffective. If prisoners do not believe they will get a response from prison administration, they will be more likely either to bypass internal procedures entirely and file a complaint in federal court or use a federal lawsuit to prod prison officials into a response, thus taxing the judicial resources that Congress meant to conserve by passing the PLRA. Accordingly, we hope that the events that transpired in this case are not reflective of the way in which SCI Rockview responds to inmate grievances generally.

Joining Hardiman were Jordan and Greenaway. Arguing counsel for the prisoner was John Jacobus of Steptoe & Johnson (a Barry district court clerk) and Howard Hopkirk of the state AG’s office for the prison. The opinion thanked the Steptoe lawyers for handling the appeal pro bono.

New opinion — divided Third Circuit panel vacates career-offender criminal sentence under plain-error review

US v. Calabretta — criminal — reversal — Chagares

The Third Circuit reversed a criminal sentence under plain error review yesterday, holding that Johnson v. United States invalidates the residual clause of USSG 4B1.2 and that sentencing the defendant as a career offender was plain error.

Joining Chagares was Jordan. Fisher dissented, “specifically to address the erosion of the doctrine of plain error review in our Circuit.” Arguing counsel were John Meringolo of New York for the defendant and Steven Sanders for the government.

After panel rehearing, Third Circuit reverses course in non-precedential media case

Earlier this week the Third Circuit issued a non-precedential opinion in Cheney v. Daily News, reviving a firefighter’s defamation and invasion-of-privacy claims against a newspaper that used his photo, naming him in the caption, to accompany a news story about a fire department sex scandal he had nothing to do with. The same panel had issued an opinion coming out the other way back in February, then granted panel rehearing and heard oral argument.

I don’t have an intelligent view about the merits here, but I do applaud the panel’s willingness to reverse course. I’m a firm believer in panel rehearing. Modern appellate judges simply don’t have the luxury of agonizing forever over each case. Panel rehearing plays a valuable role in helping courts decide cases efficiently and accurately, but fulfilling that role requires judges confident enough to admit their rare mistakes.

As Justice Felix Frankfurter wrote, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

New opinions — it isn’t unreasonable for judges to run new federal sentences consecutive to existing unconstitutional state sentences

US v. Napolitan — criminal — affirmance — Krause

Sometimes a judge imposes a criminal sentence on a defendants who is already serving another criminal sentence. When that happens, the judge has to decide whether the new sentence starts running now (“concurrent”), or whether instead the new sentence doesn’t start running until the defendant’s current sentence is over (“consecutive”).

The difference between concurrent and consecutive may sound like small potatoes, and some judges may treat it that way, but in practice the choice can have a huge impact on how long a defendant has to serve.

Imagine a defendant whose first sentence is 10 years in state prison. After she has served half that sentence, she gets a federal conviction and a new 5-year sentence. If the new sentence is consecutive, her total time in prison is 15 years; if concurrent, she serves 10 years. If that’s you or your parent or your child, that’s a huge sentencing difference.

Now, let’s change the above hypothetical. Suppose that, at the time of the new sentencing, everyone in the courtroom agrees that the first sentence was illegal. Instead of the 10 years she got, the sentence should have been only 5 years. But it’s too late now for her to challenge the unconstitutional first sentence.

In a case like the second hypothetical, is it unreasonable for a judge to make the second sentence consecutive? Today, the Third Circuit held that it is not, affirming a defendant’s consecutive sentence. The court found the outcome largely dictated by the 1994 Supreme Court ruling in Custis v. United States, which held that federal defendants generally cannot collaterally attack prior state sentences used to enhance their later federal sentences.

The opinion’s legal reasoning looks perfectly sound to me. But I wish the court had included some language reminding district courts that, while they’re more or less free to run new sentences consecutive to unconstitutional existing sentences, that doesn’t make it a fantastic idea.

Joining Krause were Fuentes (the court’s newest senior judge!) and Roth. The caption does not indicate whether there was oral argument; the defendant was represented by AFDs Akin Adepoju and Renee Pietropaulo of the WDPA defenders, the goverment by Donovan Cocas and Rebecca Haywood.

New opinion — Third Circuit reaffirms the “picking off” exception to mootness

Richardson v. Director Federal BOP — inmate civil rights / class action — reversal — Smith

Class-action plaintiffs won a major victory in the Third Circuit today, as the court reaffirmed a rule that makes it harder for defendants to moot impending class-action suits by picking off the plaintiffs before they can seek class certification.

First, the facts. An inmate at USP Lewisburg housed in that prison’s “Special Management Unit” alleged that the prison had an unwritten policy of increasing inmate-on-inmate violence by housing hostile SMU inmates together and painfully restraining inmates who refused a hostile cellmate. Specifically (record cites omitted):

In support of this claim, Richardson [the inmate plaintiff] explains how—after seven months of living with a compatible cellmate—corrections staff asked him to “cuff up” on the cell door so that a new inmate could be transferred into his cell. Richardson alleges that this inmate, known among the prison population as “the Prophet,” had attacked over twenty former cellmates.  Richardson refused to “cuff up” because he did not want to be placed with “the Prophet.” Corrections staff then asked if Richardson was refusing his new cellmate, and he replied that he was. After taking “the Prophet” away, corrections staff returned thirty minutes later with a Use of Force team and asked Richardson if he would submit to the use of restraints. Richardson complied.

Richardson was then taken down to a laundry room where he was stripped, dressed in paper clothes, and put in “hard” restraints. Next, he was locked in a cell with another prisoner (who was also in hard restraints) and left there for three days before being transferred yet again. All told, Richardson alleges that he was held in hard restraints for nearly a month, was forced to sleep on the floor for much of that time, and frequently was refused both showers and bathroom breaks. Richardson also claims that there have been at least 272 reports of inmate-on-inmate violence at USP Lewisburg between January 2008 and July 2011 and that dozens of other inmates have suffered treatment similar to his as a result of this unwritten practice or policy.

The inmate sued for damages and injunctive relief and sought class certification. The district court denied certification on ascertainability grounds, and the inmate appealed. The prison argued that the claims for injunctive relief were moot because they moved the inmate out of the SMU after he sued and before he sought class certification. The prison also argued that all the named defendants had retired or changed jobs and that this too mooted any claim for injunctive relief.

Today, the Third Circuit reversed, rejecting both of the prison’s mootness arguments in a thorough, 44-page opinion. In the opinion’s most important holding, the court reaffirmed the “picking off” exception to mootness, which bars defendants from dodging class suits by mooting named plaintiffs before they have a fair opportunity to seek class certification and reduces premature certification motions.

Joining Smith were Hardiman and Nygaard. Arguing counsel were Alexandra Morgan-Kurtz of the Pennsylvania Institutional Law Project for the inmate and Michael Butler for the prison.

Senator Toomey is Blocking a Well-Qualified Judicial Nominee and Adding to the Lack of Gender Diversity in Our Judiciary

Note: I had the pleasure of co-authoring this post with Ellen C. Brotman, Chair of the White Collar and Government Investigations Practice at Griesing Law, LLC, a Philadelphia-based, woman-owned law firm. You can follow Ellen on Twitter @EllenBrotman.


Women judges graph

Last month, the United States Court of Appeals for the Third Circuit held the swearing in of its latest judge, the Honorable L. Felipe Restrepo, a naturalized American citizen, born in Colombia, a graduate of the University of Pennsylvania and Tulane Law School.  Judge Restrepo is a universally respected jurist and legal scholar who brings a diversity of background and training to the Court.

But despite this positive development, the Third Circuit still has a diversity problem: the Court has 13 active judges, and only two of them are women. That’s the lowest proportion of women of any federal appeals court in the country.

The Third Circuit’s shortage of women judges undermines both the public’s confidence in our justice system and the Court’s ability to tap into diverse perspectives in its deliberations.  Yet, as part of a Republican effort to thwart President Obama’s judicial nominations, Pennsylvania’s Republican United States Senator Pat Toomey is currently blocking the nomination of a well-qualified woman, Rebecca Ross Haywood, to the Court.  This partisan obstructionism has to stop.

The Third Circuit sits in Philadelphia and hears appeals from federal courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands. It is one of 12 regional federal circuit courts. Federal judges are nominated by the President, confirmed by the Senate, and serve for life. Once judges reach a certain age and number of years of service, they have the option of entering a sort of semi-retirement known as senior status. When a judge takes senior status, it creates an open seat on the court for a new active judge.

Nationwide, about a third of federal appellate judges are women. All but two other circuits have a proportion of women judges that’s twice as high as the Third Circuit’s; in three circuits, the proportion of women is three times greater. For example, the Eleventh Circuit — considered by many the most conservative circuit court in the country — has five women among its 11 active judges, or 45 percent.

Of course, it is encouraging that the Third Circuit is doing better when it comes to racial and ethnic diversity. The Court’s proportion of African American and Hispanic judges is above the national circuit-court average.

But those responsible for selecting judges should be doing everything they can to correct the Third Circuit’s shortage of women. After Judge Rendell took senior status a year ago, President Barack Obama nominated Rebecca Ross Haywood, the Chief of the Appellate Division in the United States Attorney’s Office in Pittsburgh, to fill Judge Rendell’s seat.  AUSA Haywood has more experience as a federal prosecutor and appellate advocate than any recent Third Circuit appointee. And Haywood’s nomination is historic — she would be the Court’s first-ever African-American woman. The American Bar Association gave Haywood its highest rating, Unanimously Well Qualified. Yet Senator Toomey questions Haywood’s abilities and is using Senate procedural rules to block her nomination.

Why is gender diversity important? Aside from the importance of equally recognizing accomplishments and providing role models and exemplars, diverse perspectives lead to better decision making.  One study found that women federal appellate judges are significantly more likely than men to rule in favor a party alleging discrimination. Just having women judges on the panel deciding a case has a significant impact on how the men judges on the panel rule, too: with a woman on the panel, the study found, men are significantly more likely to rule in in favor of a civil rights litigant. The recent scandal over misogynist and racist emails exchanged between Pennsylvania Supreme Court justices and attorneys here in Pennsylvania demonstrates how important a diverse bench is to the public’s ability to have confidence in justice system.

Just a decade ago, the Third Circuit had a solid contingent of women judges: Judge Delores Sloviter, Judge Jane Roth, Judge Marjorie Rendell, and Judge Maryanne Trump Barry. But, since 2006, all four women have taken senior status, and Judge Sloviter recently stopped hearing cases altogether. In that time, only two male Third Circuit judges went senior, and only two of the judges added since 2006 — Judge Patty Shwartz and Judge Cheryl Krause — are women.  From 2000 and 2012, 10 new judges joined the Court: all 10 were men.

AUSA Haywood deserves the nomination because she has the acumen, the training, and the character. The Third Circuit deserves a judge with AUSA Haywood’s skills, wisdom and distinct perspective. Senator Toomey’s constituents deserve a representative who will stop playing politics with our justice system. It’s time to move AUSA Haywood’s nomination forward.

New opinions — government can deny citizenship for false statements on old immigration applications

The Third Circuit has had a flurry of published immigration opinions in recent weeks, and today brings two more, both government wins.

Saliba v. AG — immigration — affirmance — Greenberg

A citizen of Syria falsely claimed to be a citizen of Lebanon when applying for temporary US residency. The deception got him temporary status and later legal permanent residence, but it was caught when he applied for citizenship. The district court denied his petition challenging citizenship denial, and today the Third Circuit affirmed in a lucid and well-reasoned opinion that is two-spaces-after-the-period away from violating every rule of good typography.

Joining Greenberg were Ambro and Jordan. The case was decided without oral argument, which seems like a missed opportunity because losing counsel speaks six languages.


Koszelnik v. Secretary of Dep’t of Homeland Security — immigration — affirmance — Roth

Stop me if this sounds familiar: a citizen of Poland falsely answered a question on a visa application and as a result gained permanent residency, but the falsehood was later caught when he applied for U.S. citizenship. The district court ruled against him, and the Third Circuit today affirmed, noting in a footnote:

Two panels of this Court are filing opinion in Koszelnik v. Secretary, No. 14-4816, and Saliba v. Attorney General, No. 15-3769, on this day dealing with similar issues. Each opinion is a further precedent supporting the other opinion.

(Saliba had a subtantially identical footnote.)

Joining Roth were Fuentes and Krause. Arguing counsel were John Bleimaier of Princeton for the appellant and Neelam Ihsanullah (who I suspect is no longer a member of the National Immigration Project of the National Lawyers Guild) for the government.


If someone approaches you today with this offer — “I will give you $10 if you successfully predict one published opinion for which the Third Circuit will not grant rehearing en banc, but if you lose you have to pay $1,000″ — consider taking a flier on today’s opinions.

Nominations are open for the ABA’s annual list of the top 100 (?) legal blogs

I just got an email from the ABA about nominating legal blogs for their Blawg 100 list. Here’s how my thought process went:

  1. Gee, I hope my blog makes the list this year.
  2. Should I ask my readers to vote for my blog? That seems like more self-promotion than I’m comfortable with. (Blech. Ick — “Pubished,” eh?)
  3. Hey, wait, maybe if I mention the awards, but pretend that I’m doing so only to discuss other blogs, I’ll get nominations without looking like a huckster.

Clever, no? (And when my obscure and ranting blog is not chosen, I plan to react quite graciously, like this.)

The ABA publishes an annual list, the Blawg 100, that purports to identify the best* legal blogs.** Except a lot*** of the obvious choices (Scotusblog, How Appealing, etc.) are already on their Blawg 100 Hall of Fame. The ABA deems the Hall its highest blog honor, so the 40 Hall of Famers aren’t eligible for the annual 100 list.****

* A list of the worst would be more fun.

** I hate the cutesy word “blawg.” I’d sooner refer to myself as a nose-picker than as a blawger.

*** Why is Douglas Berman’s Sentencing Law & Policy blog not in the Hall of Fame, or even on the most recent 100 list? Because it doesn’t measure up to Golf Dispute Resolution?

**** This is just as well, since it saves me ranting on about the misogyny of HOFer Simple Justice.

Am I the only one who questions whether there are 140 award-worthy legal blogs? I bet not. (But the time I spend writing my blog cuts into the time I have to read others, so what do I know?) I’ve often mentioned several of my favorites here, especially How Appealing and New Jersey Appellate Law, and I enjoy Noah Feldman‘s column on Bloomberg.

Anyway, this year I’m nominating De Novo: A Virginia Appellate Law Blog. De Novo is authored by Jay O’Keeffe, an appellate and business lawyer in Roanoke. De Novo consistently pulls off a balance I’ve aspired to: it’s filled with useful information and interesting ideas, yet it’s relentlessly readable.

Most of my favorite De Novo posts cover appellate advocacy, like this one entitled Legal Writing Tip: Focus Before Detail, this detailed one on a disastrous Ninth Circuit oral argument, and this one on how to handle the Fourth Circuit’s sinister rule that counsel don’t find out who’s on their panel until the morning of oral argument. (Plus he’s a fellow Butterick fanboy!) The content is terrific, and it’s always presented with clarity, humility, and humor.

Well, I hope you’ve enjoyed this post, which is not at all about nominating my blog for the Blawg 100.

New opinion — restitution award against child-porn producer does not bar later civil suit

Doe v. Hesketh — civil — reversal — Greenaway

Matthew Mancuso adopted a five-year-old girl, sexually abused her, took photos and videos of the abuse, and traded this child pornography online. He was convicted of sexual exploitation of a minor and received a sentence that included $200,000 in restitution to the victim. The victim later sued Mancuso under 18 USC 2255, but the district court held that the civil suit was barred by the prior restitution award. Today, the Third Circuit reversed, holding that section 2255 allows victims to sue for damages even if they already have received restitution for the same conduct.

Joining Greenaway were Scirica and Roth. Arguing counsel were Sidney Moore of Georgia for the appellant and Stanley Greenfield of Greenfield & Kraut for the appellee.

More on why I don’t think refusing to confess again in court means that the earlier confession was unreliable

I posted earlier today about the Third Circuit’s habeas corpus affirmance in Staruh v. Superintendent. (And the losing attorney just posted a comment.) I can’t help posting some further thoughts, which assume familiarity with my prior post.

The opinion says that the declarant-against-penal-interest’s “failure to testify is extremely probative of the truthfulness of her statements.” In other words, the fact that she wasn’t willing to repeat her confessions under oath is an extremely strong reason to think the confessions were false: she wouldn’t put her money where her mouth was.

That sounds reasonable enough at first blush, but I think it doesn’t survive scrutiny.

Consider. The defendant had asserted that the grandmom confessed her own guilt, and the defendant wanted the grandmom to repeat that confession in court. Assuming grandmom wasn’t eager to face a first-degree murder trial herself, she had 3 options:

  1. testify that the investigator was lying, she had never confessed, and she was innocent;
  2. testify that investigator was telling the truth but the confession had been a lie and she was innocent; or
  3. refuse to testify.

She chose #3. Outside the jury’s presence, she invoked the 5th Amendment right of self-incrimination. That 5th Amendment invocation is what the opinion referred to as her “failure to testify.”

Now, I’m no great 5th Amendment scholar, but if the grandmother believed her confession either (1) never happened, or (2) was false, why on earth would she invoke her right against self-incrimination? (Her out-of-court confessions weren’t under oath, so this even isn’t a situation where she incriminated herself either way, murder or perjury.)

The panel treated her unwillingness to testify as a tacit admission that her confessions were false, but in reality she was perfectly free to disavow the confessions, expressly, just by testifying. The fact that she refused to testify — that, instead, she pled the 5th — is not an extremely strong reason to think the confessions were false. If anything, it’s a pretty good reason to think they were true.

(And all that’s not just a fluky fact of this particular case, but it often will be true in statement-against-penal-interest / right-to-present-a-defense cases — the cases where the court’s “extremely probative” language will forever after be invoked.)

Now, I admit that it’s possible that grandmom was trying to be extremely clever. Maybe she thought she could make a false confession out of court, count on that confession being admitted at mom’s trial and resulting in mom being found not guilty and not resulting in grandmom being tried for murder herself. That’s not impossible, but I think it’s ludicrously unlikely. This isn’t Hollywood, this is grandmom living in a house with “diapers on the floor, kitchen faucets that did not work, a sink overflowing with dirty dishes, and toilets that were used without water.” Far-fetched what-ifs like that are no reason to set up a general presumption like the court (arguably) did here.

And the language in today’s opinion risks creating a powerful new reward for prosecutors who succeed in forcing recanting witnesses or confessing alternate perps to invoke the 5th Amendment. Now they don’t just keep those witnesses from taking the stand and looking the factfinder in the eye — they also get to make the witnesses’ out-of-court recantations and confessions disappear in a poof of smoke, too.

Do we really need to create another hurdle for defendants fighting to prove their innocence?




New opinion — preventing jurors from hearing the alternate perpetrator’s hearsay confessions does not warrant habeas relief

Staruh v. Superintendent — habeas corpus — affirmance — Smith

Two adults lived in the house where a three year-old died from blunt-force trauma: the victim’s mother and grandmother. The mother was the one charged with murder. On the eve of trial, after repeatedly claiming for over two years she had nothing to do with the injuries, the grandmother reportedly confessed in interviews with a defense investigator.

When the grandmother refused to repeat the confessions in court, the defense sought to tell the jury what the grandmother had said, offering it as a statement against penal interest. The court refused the request on hearsay grounds, and, knowing nothing about the grandmother’s confessions, the jury convicted the mother of murder.

In the habeas corpus appeal now before the Third Circuit, the mother argued that the court’s refusal to admit the grandmother’s confessions violated the mother’s due process right to present her defense. Today, without oral argument, the Third Circuit rejected the claim, affirming the district court’s ruling and denying habeas relief.

The court did not appear to dispute the mother’s contention that the confessions “were made before and during trial; were made on more than one occasion to a court-appointed investigator; were never repudiated; were very detailed; and were not the result of threats or inducements.” Yet it found that the confessions had “no indicia of credibility.” It explained:

Lois [the grandmother], in making the statements, was attempting to have her cake and eat it too.11 She was hoping to prevent her daughter from being convicted of murder by confessing to the crime, while at the same time avoiding criminal liability herself. Her last-minute change of heart, after she had both pleaded guilty to the lesser offense of endangering a child and disavowed any responsibility for Jordan’s death for two and a half years, further supports this view. This appears to be a “justice-subverting ploy” that provides the justification for requiring indicia of truthfulness.

In the footnote, the court noted that the defendant “appears to have been unable to obtain an affidavit from Lois reaffirming her confession . . . casting further doubt on its truthfulness.”

I question the court’s reasoning. Maybe the grandmom was lying to protect the mom. It’s possible. But it’s also possible that grandmom was the real murderer, her repeated and detailed and never-repudiated confession was the truth, and her refusal to affirm it was choosing her own freedom over the mom’s. The court’s certainty about which possibility is the truth, seemingly arrived at with no subsequent evidence or fact-finding about grandmom’s actual motivations, seems unwarranted. That seems like a choice for juries allowed to hear all the facts, not appellate courts.

Perhaps the panel meant only to say that relief was foreclosed by 2254(d)(1)’s limitation on relief, not that the claim failed as a de novo matter, but that’s not how I read the opinion.

In the opinion’s most dangerous passage, the court stated in a footnote that the grandmother’s unwillingness to testify “is extremely probative of the truth of her statements.” Read broadly, this language is nothing less than a repudiation of the penal-interest hearsay exception. The whole reason defendants like the mother seek to get in hearsay statements against penal interest is that the alternate perpetrator isn’t willing to repeat the confession in court. If the hearsay is never reliable enough when the declarant won’t testify at trial, then the penal-interest rule is an umbrella you can use only when it’s not raining. I hope that the court clarifies this critical point on rehearing or in a future case.

Joining Smith were Hardiman and Nygaard. The case was decided without oral argument.

UPDATES: I posted some further thoughts on this case here.

New opinion — the circuit’s next big internet-privacy opinin

In re: Nickelodeon Consumer Privacy Litig. — civil — partial affirmance — Fuentes

The opinion’s cogent introduction:

Most of us understand that what we do on the Internet is not completely private. How could it be? We ask large companies to manage our email, we download directions from smartphones that can pinpoint our GPS coordinates, and we look for information online by typing our queries into search engines. We recognize, even if only intuitively, that our data has to be going somewhere. And indeed it does, feeding an entire system of trackers, cookies, and algorithms designed to capture and monetize the information we generate. Most of the time, we never think about this. We browse the Internet, and the data-collecting infrastructure of the digital world hums along quietly in the background.

Even so, not everything about our online behavior is necessarily public. Numerous federal and state laws prohibit certain kinds of disclosures, and private companies often promise to protect their customers’ privacy in ways that may be enforceable in court. One of our decisions last year, In re Google Inc. Cookie Placement Consumer Privacy Litigation, addressed many of these issues. This case addresses still more.

This is a multidistrict consolidated class action. The plaintiffs are children younger than 13 who allege that the defendants, Viacom and Google, unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites. Many of the plaintiffs’ claims overlap substantially with those we addressed in Google, and indeed fail for similar reasons. Even so, two of the plaintiffs’ claims—one for violation of the federal Video Privacy Protection Act, and one for invasion of privacy under New Jersey law—raise questions of first impression in our Circuit.

The Video Privacy Protection Act, passed by Congress in 1988, prohibits the disclosure of personally identifying information relating to viewers’ consumption of video-related services. Interpreting the Act for the first time, we hold that the law permits plaintiffs to sue only a person who discloses such information, not a person who receives such information. We also hold that the Act’s prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior. In our view, the kinds of disclosures at issue here, involving digital identifiers like IP addresses, fall outside the Act’s protections.

The plaintiffs also claim that Viacom and Google invaded their privacy by committing the tort of intrusion upon seclusion. That claim arises from allegations that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then, despite its assurances, did exactly that. We faced a similar allegation of deceitful conduct in Google, where we vacated the dismissal of state-law claims for invasion of privacy and remanded them for further proceedings. We reach a similar result here, concluding that, at least as to Viacom, the plaintiffs have adequately alleged a claim for intrusion upon seclusion. In so doing, we hold that the 1998 Children’s Online Privacy Protection Act, a federal statute that empowers the Federal Trade Commission to regulate websites that target children, does not preempt the plaintiffs’ state-law privacy claim.

Accordingly, we will affirm the District Court’s dismissal of most of the plaintiffs’ claims, vacate its dismissal of the claim for intrusion upon seclusion against Viacom, and remand the case for further proceedings.

Joining Fuentes were Shwartz and Van Antwerpen. Arguing counsel were Jason Barnes for the appellants, David O’Neil of Debevoise & Plimpton and Michael Rubin of Wilson Sonsini for appellees, and Alan Butler of the Electronic Privacy Information Center and Jeffrey Wall of Sullivan & Cromwell for amici.

New opinion — divided panel reverses conviction based on failure to give entrapment defense [updated]

US v. Dennis — criminal — reversal in part — Nygaard

In a criminal appeal arising out of a stash house reverse sting, a divided panel reversed a defendant’s convictions for robbery and gun possession, holding that the district court erred in failing to instruct the jurors on entrapment, and specifically in weighing competing evidence in the government’s favor to deny the instruction. The majority also rejected the government’s harmless-error argument. It rejected the defendant’s argument that he was the victim of an outrageous prosecution violating due process.

Joining Nygaard was Hardiman; interestingly, Ambro dissented from the instruction reversal, and also expressed measured concerns about stash house reverse stings. Arguing counsel were Benjamin Yaster of Gibbons for the defendant and Mark Coyne for the government.

I expect a government petition for rehearing en banc and I’m certainly curious to see what happens.

[I updated my original post with more details.]

Three new immigration opinions

Three published opinions today — all three were immigration appeals, all three involved Hispanic petitioners, all three were decided without oral argument, and all three were government wins.

Bedolla Avila v. AG — immigration — denial — Smith

The Third Circuit issued an opinion applying the convoluted analysis to decide whether a crime counts as an aggravated felony for purposes of removal. First, the court attempts to apply the formal categorical approach to the statute of conviction. But sometimes the statute of conviction is divisible, and in which case the court departs from formal categorical approach and instead uses a modified categorical approach. (If those terms are Greek, they’re explained in the opinion.) Here, the court held that the petitioner was convicted under a divisible statute and used modified categorical analysis to identify the crime of conviction. Having identified the crime he was convicted of, the court then had to decide if it was an aggravated felony, as follows:

there are two independent but valid routes by which an offense may be found to qualify as an aggravated felony. The first, the illicit trafficking route, provides that a crime is an aggravated felony if it is a felony under state law and contains a trafficking element. Id. The second, the hypothetical federal felony route, provides that a crime is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id.

Applying the hypothetical federal felony route, the court held that the petitioner’s crime was analogous to possession with intent to distribute cocaine and thus qualified as an aggravated felony.

The court also rejected the petitioner’s argument that simultaneous removal proceedings against a person in front of an immigration judge and the Dept of Homeland Security are prohibited.

Joining Smith was McKee and Hardiman. The case was decided without argument; Sandra Greene of Greene Fitzgerald represented the petitioner.


Frias-Camilo v. AG — immigration — denial — Jordan

A native of the Dominican Republic was a lawful permanent resident for 7 years before pleading guilty to conspiracy to possess cocaine, but he “received no jail sentence, no term of probation, no community service, and owed no fines or fees.” The government in all its wisdom decided to deport him anyway. He argued he was not subject to removal because his guilty plea did not result in any punishment. The Third Circuit disagreed and denied his petition.

Joining Jordan were Ambro and Greenberg. The case was decided without oral argument; counsel for the petitioner was Raymond Lahoud of Barkout & Barkout.


Ordonez-Tevalan v. AG — immigration — denial — Greenberg

A Guatamalen woman twice entered the U.S. illegally and was caught both times. She tried to prevent removal the second time by explaining that she came to the U.S. in order to escape an ex-boyfriend who had raped her and threatened to kill her. The Third Circuit rejected her appeal on 3 independent grounds — the immigration judge’s credibility findings against her, her failure to prove that the abuse she feared was the result of her membership in a protected class, and her failure to prove that her abuse was caused or allowed by an official.

The court did rule against the government on a jurisdictional issue. While the Third Circuit petition was pending, the parties jointly moved to reopen proceedings in the Board of Immigration Appeals (apparently to correct an error in the record), and the BIA issued new orders denying relief on the same grounds as before. The petitioners did not file a new petition challenging the new orders, and the government argued that the Third Circuit lacked jurisdiction to review her challenge to the old orders. The court rejected this argument on the ground that the new orders did not alter the prior decisions.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument; counsel for the petitioners was Carol Donohoe of Reading, Pa.




“It would be surprising and distressing were the Third Circuit to allow the district court decision to stand.”

The quote forming the title of this post is from this story by Carrie Salls today on PennRecord. The district court decision in question is a ruling denying the Federal Trade Commission’s request of an injunction blocking a merger of two Harrisburg-area hospitals. The story reports that the district court’s ruling marked the first defeat on an attempted federal court hospital merger challenge in more than 10 years for the FTC.”

The quote is by former FTC general counsel Stephen Calkins, who predicts the circuit will rule on the antitrust appeal by the end of the summer (the district court ruling reportedly was in May, but the FTC already filed its reply brief earlier this week, opening brief here). Calkins also is quoted saying “it is especially important for the FTC to win the Third Circuit appeal,” and describing the district court ruling as “appallingly bad.”


Third Circuit revisits Lehman Brothers in another must-read sanctions opinion

Roberts v. Ferman — civil — affirmance — Smith

Fellow Third Circuit enthusiasts will recall the court’s ruling last year in Lehman Brothers, where the court held that a litigant’s failure to include a transcript in the appellate record resulted in forfeiture of the litigant’s claim. The ruling sparked much discussion, some of it critical of the opinion, some of it on this blog (see for example my post and this Third Circuit Bar Association newsletter article by Howard Bashman and me).

Today, the Third Circuit revisited Lehman Brothers, vigorously reaffirming the ruling but also emphasizing its narrowness. The court tartly noted, “we did not cavalierly hold that any failure to comply with [FRAP] Rule 10(b) would result in forfeiture.” It explained:

The takeaway, then, from Lehman Brothers should be clear: Gateway made an affirmative and serious misstatement in its brief before this Court when it stated that no record of the telephonic oral argument existed. This, we concluded, evinced either an intent to deceive the Court or a “remarkable lack of diligence.” Id. at 101. Even so, that alone was insufficient to warrant forfeiture, because we went on to consider Gateway’s post hoc explanation for its failure. Only upon finding Gateway’s explanation lacking did we conclude that forfeiture was an appropriate sanction.

The court held that Lehman Brothers‘ forfeiture sanction was not warranted in this case, even though this appellant also failed to include in the record some available and relevant transcripts, because “[t]here is no allegation that Roberts [the appellant] misrepresented the existence or non-existence of the trial transcript or that the explanation for his omission was a disingenuous post hoc rationalization.”

If today’s opinion’s ended there it would still be CA3-nerd can’t-miss reading, but there’s much more.

Gaps in the transcript were discovered while the case was still in district court, and the court directed the appellant to follow the FRAP 10(c) procedure for recreating the missing record. When the appellant failed to do so, the district court dismissed for failure to prosecute the appellant’s post-trial motion. With some withering language — for example, “Roberts’ counsel should take the time to read Rule 10(c)” — the Third Circuit held that this ruling was no abuse of discretion, and, alternatively, that the appellant’s actions would also foreclose review of the merits of his appeal. The opinion gives this useful practice guidance:

[O]ur holding in this case leaves open avenues for appellants to seek appropriate relief if they can show that they were prejudiced by the loss of part or all of the record below. Such an appellant must comply with the dictates of Rule 10(c) and then present specific reasons why his or her attempt to recreate the record was insufficient. This would allow us on appeal (or the district court when considering a posttrial motion) to properly assess whether we could in fact grant meaningful review of the appellant’s claims without the actual trial transcript available to us.

Finally, the court held that the district judge did not err in reconsidering sua sponte an earlier denial of summary judgment.

Joining Smith were Ambro and Krause. The case was decided without oral argument. Counsel for the appellant was Brian Puricelli, who in 2004 was the subject of a New York Times story (!) describing one of his briefs as “infested with typographical errors,” and reporting that a federal judge wrote, “Mr. Puricelli’s complete lack of care in his written product shows disrespect for the court.” Counsel for the appellee was Carol VanderWoude of Marshall Dennehy.



“As Trump has advanced this rhetoric, he has practically begged the question: What would his sister think?”

Rachel Berg has this fascinating article today on Realclearpolitics, venturing some answers to the query that forms the title of this post. The headline is, “Trump and His Jurist Sister: A Study in Contrasts.” Appellate star David Fine of K&L Gates is quoted:

Barry “is a very active judge at oral argument, which is usually a sign a judge has already read the briefs and is very actively thinking about the case,” said David Fine, an appellate lawyer based in Harrisburg, Pa. “She is very polite in questioning and at the same time also direct.”

I’m quoted too.

The article features an interesting discussion of Barry’s record in immigration appeals, focusing on an opinion I haven’t seen mentioned in any prior Barry/Trump coverage:

[M]any of her immigration-related decisions are notable for their clear breaks with Trump: in calling for limits on the executive’s authority, and in their explicit compassion for individuals.

* * *

[O]n the Third Circuit bench, Barry considered whether the government should be permitted to deport Malachy McAllister, who had fled persecution and political turmoil in Northern Ireland in the 1980s and ultimately sought asylum in the U.S. Beginning in 1999, however, immigration authorities sought to deport him.

The panel, including Barry, found that there were no legal avenues for McAllister and his family to remain in the country. But her opinion sought to highlight the humanity of the case and suggested that the law had fallen short.

“I refuse to believe that ‘Give me your tired, your poor, your huddled masses yearning to breathe free…’ is now an empty entreaty,” Barry wrote. “But if it is, shame on us.”

“I cannot find a way to keep the McAllisters in this country, and I have surely tried,” Barry added. “But the laws Congress has enacted, particularly those enacted in the wake of the September 11th horror, are bullet-proof, designed, as they should be, to combat terrorism. The problem here, though, is that Congress’s definition of ‘terrorist activity’ sweeps in not only the big guy, but also the little guy who poses no risk to anyone. It sweeps in Malachy McAllister.”

Check out the whole story, it’s worth it.



Third Circuit recusal procedure, the basics and beyond

Okay, quick show of hands — let’s see everyone who predicted that judicial recusal would ever be a national politics headline-grabber? Anybody?

First, there was a flurry of silly coverage about whether Judge Maryanne Trump Barry would recuse from the Bridgegate-disclosure appeal. Then the media tsunami about Donald Trump’s bashing a Hispanic district judge for not recusing from the Trump University case. All the sudden, judicial recusal is right up there with Game of Thrones and gorilla-enclosure practices amongst the key issues of our age that you’re expected to be able to discuss intelligently.

Fear not, I’m here to help.

The federal standard for judicial recusal is defined by statute, 28 USC § 455 (emphasis mine):

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

b) He shall also disqualify himself in the following circumstances:

1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
i) Is a party to the proceeding, or an officer, director, or trustee of a party;
ii) Is acting as a lawyer in the proceeding;
iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

That’s all pretty clear (albeit sexistly worded). Third Circuit IOP 11.2.2 elaborates on what counts as a financial interest.

Another situation not specifically mentioned in § 455(b) is where an appellate judge presided over the same case in trial court or state court. This comes up whenever a new circuit judge used to be a district or magistrate judge — that was true of six of the last seven Third Circuit appointees, so this pops up a lot. Third Circuit local rule 26.1.2 addresses this situation, requiring the parties to notify the court whenever it applies.

Okay, so that’s the standard, but what is the procedure for raising grounds for recusal? Recusal can happen either on the judge’s own initiative or at the request of a party.

Judicial-initiated recusal in the Third Circuit is covered by the circuit IOP 11.1:

11.1.1 Before cases are sent to a panel, the clerk transmits copies of the docket sheets and disclosure statements to each judge who responds promptly informing the clerk of those cases in which the judge is recused.

11.1.2 Each judge may submit to the clerk in writing those circumstances which would generally require a recusal, including names of businesses in which the judge or family members have a financial interest, names of lawyer relatives whose names may appear as counsel in the appeals, and names of law firms on whose cases the judge does not sit.

Third Circuit judges’ standing recusal lists (the second paragraph in 11.1) are not available to the public. But in the past the Third Circuit released information about at least one individual judge’s recusal practices. Howard Bashman reported that in 2000 the court disclosed that Judge Rendell recused herself from all cases in which a party or its law firm contributed over $2500 to her then-husband Edward Rendell’s political campaign, unless waived by the parties, and from any case involving such a contribution of $2500 or less if any party objected. Bashman reported in 2001 that Rendell’s contribution-related-recusal policy was on the Third Circuit’s website, but I don’t find any notices related to specific judges’ recusal policies on the website today.

Also, then-Judge Alito’s CA3 standing recusal lists were released to the Senate during his Supreme Court confirmation proceedings. He stated that his list included cases involving his sister’s law firm and, for his first four years on the court but not thereafter, cases he’d handled as a U.S. Attorney. His hearing testimony also indicated he updated his standing list annually.

Information about financial interests that could cause a judge to recuse is available from the disclosure forms that all federal judges are required to file annually. Those forms are available here (2015 reports are here [UPDATE: unfortunately now they’re behind a paywall], a searchable database is or at least was here), and I’ve mentioned them on the blog here and here.

Also, judges occasionally pledge to recuse from certain cases during their confirmation proceedings. For example, Alito’s circuit-nomination Senate questionnaire reportedly pledged to recuse from cases he had prosecuted as U.S. Attorney or involving certain companies.

For recusal requests raised by a party, 28 USC § 144 applies:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Whether recusal is initiated by the judge or by a party, either way a judge’s decision to recuse (or not to recuse) is normally not explained to the parties or the public. I’m not aware of any Third Circuit opinions where a judge explained his or her reasons for recusing or not recusing from a case (but I wouldn’t be surprised if it’s happened and I’ll update the post if anyone enlightens me). In a similar vein, there are Third Circuit cases about a district judge’s failure to recuse (notably US. v. Antar), but I don’t know of any about a circuit judge’s.

Not only do judges not explain why they recused, but in many cases no one outside the court will realize it happened. As indicated by IOP 11.1 quoted above, judge-initiated recusals normally occur long before the composition of the panel is disclosed to the parties. The recused judge is replaced on the panel, IOP 12.1, and the parties are none the wiser. But, at least for cases calendared by the court, it often will be apparent from the calendar when a judge may have recused from a specific case. If judges A, B, C comprise a panel deciding five cases submitted on a given day, but judges A, B, and D are the panel deciding another case, then it’s at least a good bet that judge C recused from the case D is hearing.

It’s easier to tell when judges have recused from considering a petition for rehearing en banc, because the order granting or denying rehearing en banc lists only the judges who participated, as I explained here. (But back in 2005 then-Chief Judge Scirica reportedly found frequent errors where recused judges were listed as participating; I don’t know how much such errors still occur.)

And I’ve also blogged here about a case decided earlier this year where the entire court apparently recused (due to one judge’s indirect financial stake in the case, as best I could tell [see John’s comment below]) and so the case was decided by a conflict panel of other-circuit judges.

So there you have it, recusal in all its glory. If I’ve overlooked anything, please post a comment or email me.

Divided Third Circuit panel upholds deportation based on special court-martial conviction

Gourzong v. AG — immigration — dismissal — Rendell

Under federal law, a non-citizen can be deported if he was “convicted of an aggravated felony,” and “convicted” requires a judgment of guilt “by a court.” Jamaican native Gurson Gourzong was convicted of an aggravated felony by a special court-martial. Unlike a general court-martial, a special court-martial is not necessarily presided over by a legally trained judge, and the record doesn’t clearly establish whether a legally trained judge presided over Gourzong’s special court martial.

Today, a divided Third Circuit panel held that, because “as a general matter” special courts-martial qualify as courts, therefore the special court-martial conviction here was a judgment by a “court,” and accordingly Gourzong was removable. In a footnote, the panel left open the possibility that aliens could prove their specific special courts-martial were not “courts,” but said Gourzong had made no such showing.

Judge Cowen dissented. The nub of his disagreement came down to his position that it should have been the government’s burden, not the alien’s, to establish that the specific special court-martial at issue qualified as a court. He also disagreed that the special courts-martial typically qualfied as courts, noting that the presiding officers lack military judges’ training and independence. And he criticized the government’s conduct in the case, noting its history of changing its position and its failure to timely file its brief.

Joining Rendell was Fisher; Cowen dissented. Arguing counsel were Craig Shagin of the Shagin Law Group for the petitioner and Jesse Bless for the government. The panel thanked Shagin for agreeing to serve as pro bono counsel for his “excellent advocacy” in the case, and Cowen  praised Shagin as “Gourzong’s able pro bono counsel.”

[As the circuit’s resident typography scold, I register my horror that the majority opinion put its record cites in boldface. My horror is mitigated only partially by the opinion’s use of hard spaces after section symbols.]

Becker, Higginbotham, and Ambro — three of Posner’s “great” judges

The second half of Seventh Circuit Judge Richard Posner’s provocative and essential Green Bag essay on the federal judiciary is out, here. (First part here.)

Third Circuit enthusiasts, take note:

It is not merely nostalgia that reserves the adjective “great” for a bare handful of Justices all dead, all of whom were pragmatic, moral, and in a nonpartisan sense “political”: Marshall, Holmes, Brandeis, Cardozo, Hughes, Jackson, the two Harlans, perhaps a few others (Story? Black? Rehnquist? Frankfurter?).16

16 And on the lower courts Traynor, Friendly, L. Hand, Kozinski, Boudin, Leval, Wisdom, Leventhal, Wilkinson, Magruder, C. Fried, Wyzanski, Weinstein, Vanderbilt, BeckerHigginbotham, Edwards, Shaw, Liu, Linde, Katzmann, Ambro – and many others.

I count only four active circuit judges in that footnote, including Judge Ambro.

H/T: How Appealing.

“[I]t is difficult to believe that this highly ethical and respected judge condones behavior that diminishes the judicial branch that she has served so well”

District Judge John Jones III of the Middle District of Pennsylvania had this op-ed in Sunday’s Philadelphia Inquirer, entitled “Commentary: Trump’s criticism of judge unwarranted and dangerous.” He criticizes Trump for his criticism of Judge Gonzalo Curiel, the California federal judge presiding over the Trump University case. Judge Jones notes that Judge Curiel asked him not had not asked him to speak out, but that he thought it important to do so.

One interesting passage:

Here is a not-so-surprising disclosure: Judges are all too human and deeply imperfect. We can certainly get it wrong. Indeed, I have been told that on a number of occasions by a court of appeals. And we are hardly above being criticized by the public. I know this only too well, having decided a number of high-profile and controversial cases during my 14 years on the bench that have generated searing personal criticisms. That is as it should be in a democracy.


Of course Trump should and likely does know better than to believe that judges operate this way. His sister Judge Maryanne Trump Barry is an accomplished and superb member of the Third Circuit U.S. Court of Appeals, based in Philadelphia. Barry has participated in countless decisions involving controversial cases and has served with great distinction. I cannot know what Barry thinks of her brother’s views on Curiel, but it is difficult to believe that this highly ethical and respected judge condones behavior that diminishes the judicial branch that she has served so well.
You don’t see that every day.
UPDATE: Post updated to correct my error.

“Trump’s sister, the federal judge, ‘a little different’ from him”

The title of this post is the headline of a winning story by Jane Musgrave today in the Palm Beach (Fla.) Post. I’m quoted, but I was outdone in the memorable-quote department:

“She’s quiet. She doesn’t go to the balls,” longtime family friend and Florida Trump delegate Robin Bernstein said, struggling to find the words to describe Barry. “She’s everything you’d want a judge to be. She’s eloquent and articulate.”


Which reminds me, I forgot to post this article by Robin Bravender last week on Greenwire, also comparing Judge Barry to her brother (and also quoting me). The headline: “Trump’s sister likes EPA better than he does.”

A Friday-morning shaking of my little fist against perceived injustice

Suppose, dear reader, you are in prison, convicted of murder. You believe you are innocent. You lost your direct appeal, so now you don’t get an appointed lawyer, you’re poor, and you have to prove your innocence by yourself, from prison. Good luck!

Then, a miracle. Another prisoner — call him McDougald — talked to your co-defendant, and your co-defendant admitted to McDougald that he committed the murder, not you, and that he lied at your trial in exchange for a lenient sentence for himself.  McDougald sent you a declaration laying out what your co-defendant admitted. Eureka!

Is McDougald telling the truth? Will the court believe him? Well, McDougald also gave you some corroboration. The co-defendant told McDougald that he left a fingerprint at the murder scene. McDougald also sent you the police forensic report, which the prosecution never turned over to you, confirming that they found the co-defendant’s fingerprints there.

You’re saved! But then, disaster.

Before you can file your blockbuster new evidence, you break a prison rule. As punishment, you’re going to be put in the Restricted Housing Unit. When the guards come to move you, they see that you have four boxes of legal materials, including McDougald’s declaration and the fingerprint report. You’re allowed to have four boxes of legal materials — but when you’re in the RHU, you’re only allowed to have one box.

And now it gets Kafkaesque: The guards tell you that since you have four boxes and RHU prisoners are only allowed to have one box, they’re going to seize all four boxes and destroy them. (Oh, and the cherry on top is they write you up again, for possession of contraband — your legal papers.)


Now you see why I’m an appellate blogger instead of a crime-story writer.


The foregoing facts are from Coulston v. Superintendent, a non-precedential per curiam opinion issued yesterday by the Third Circuit panel of Ambro, Shwartz, and Nygaard. After SCI Houtzdale guards seized prisoner Troy Coulston’s files, he filed a civil-rights suit alleging denial of his constitutional right of access to the courts. Prisons don’t get to destroy inmates’ legal papers every time they break a prison rule, right?

To win his access-to-the-courts claim, Coulston had to show that he lost a chance to pursue an underlying claim that was “nonfrivolous” or “arguable,” and that he has no other remedy. Sounds like Coulston, no? But, in his pro se complaint, the remedy Coulston sought was money damages, and the Third Circuit found this fatal to his claim:

Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), he cannot do so at this time. Heck holds that a damages remedy that necessarily implies the invalidity of a criminal conviction is impermissible while that conviction stands. Id. Coulston cannot demonstrate that the loss of his PCRA claim injured him unless he also demonstrates that his PCRA petition had merit, which necessarily would imply the invalidity of his murder conviction. [Cites to three 7th Circuit cases omitted.]

But wait. Does his access-to-the-courts claim “necessarily” imply the invalidity of his conviction? All Coulston has to show is that his underlying claim is “nonfrivolous,” not that it’s meritorious. Non-frivolousness doesn’t necessarily imply invalidity any more than probable cause would necessarily imply guilt beyond a reasonable doubt.

In other words, a finding that Coulston’s underlying claim is nonfrivolous plainly would not entitle him to release. Compare Heck, where the Court expressly relied on the lower court’s view that “if he won his case the state would be obliged to release him even if he hadn’t sought that relief.” That’s what “necessarily” means. Said Heck: “if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.” Hey, Coulston, that’s you.

And ohbytheway what a wacky Catch-22. You can sue the prison for taking away your ability to overturn your conviction, but only if you overturn your conviction first. How exquisite!

At an absolute minimum, given the apparent absence of controlling precedent on whether Heck bars access-to-courts claims for money damages, was this a question appropriate to decide in a non-precedential opinion? (Not just non-precedential, by the way, but also unsigned and issued one day after submission to the panel, without oral argument, and after denying the pro se litigant’s request for counsel despite “acknowledg[ing] the concerns Coulston expresses in his motion for counsel” because “we conclude he should nevertheless be capable of presenting his appeal.”)

Not in my book.

To its credit, the panel tries to soften the blow in a footnote, stressing that dismissals under Heck are without prejudice and explaining that prisoners may avoid dismissal under Heck by seeking injunctive relief instead of money damages.

Well, hooey. If the prison already destroyed Coulston’s files, what good will an injunction do him? And what non-moot injunctive relief would he even have standing to seek? If SCI Houtzdale really does have a policy of immediately destroying prisoners’ legal files, how could any prisoner bring a justiciable injunctive-relief claim? Besides, I see nothing in the opinion to discourage a district court from simply staying Coulston’s injunctive-relief-seeking action and then denying it once Coulston has failed to overturn his conviction.

The footnote also says prisoners alleging denial of access to the courts may ask the courts to extend the time for filing their habeas petitions, citing a district court case. But neither 28 USC 2244(d)(1)(B) nor the vanishingly narrow equitable tolling doctrine give me much confidence any prisoner will be able to benefit from this suggestion, either, even if you assume that more time always cures file destruction.

The footnote concludes, “Heck is thus an obstacle, but not an insurmountable one, to obtaining review of a conviction when a prisoner is denied access to the courts.” I wish I shared the panel’s optimism.

If I’m completely off my rocker here — wouldn’t be the first time — I’d sure be grateful to be set straight.

“But the results are so absurd that they call out for review by the highest court itself.”

So sayeth prominent legal columnist Noah Feldman in this post today on Bloomberg.com. He’s talking about the Third Circuit’s panel majority’s decision earlier this week in Free Speech Coalition, which I posted about here. Professor Feldman’s column, after slamming the opinion as “absurd” and “tone-deaf,” concludes by predicting that the Supreme Court “is likely to respond.”

Former CA3 Judge Lewis on judicial-nomination obstructionism: “It doesn’t have to be this way.”

Chris Mondics has a neat story this morning on Philly.com, entitled “History contradicts party-line animosity.” It features retired Third Circuit Judge Timothy Lewis, now at Schnader Harrison, describing the process by which he was confirmed, quickly and unanimously, after being chosen by Arlen Specter and nominated by Pres. George H.W. Bush. The article suggests that Lewis’s non-partisan confirmation “might point the way forward for the U.S. Supreme Court nomination of Merrick Garland,” but it’s equally instructive for the pending Third Circuit nomination of Rebecca Haywood.



New opinion — court rules for pornography producers in challenge to records laws

Free Speech Coalition v. AG — civil — vacatur — Smith

A divided Third Circuit panel today ruled in favor of pornography-industry plaintiffs challenging federal laws requiring them to maintain and allow inspection of certain records. The majority ruled that the statutes and regulations were content based and thus subject to scrutiny under the First Amendment. It further held that the inspection provisions facially violated the Fourth Amendment. Dissenting on the First Amendment issue, Judge Rendell argued strict scrutiny should not apply. This case was before the court for the third time; I discussed the previous round here.

Joining Smith was Scirica, with Rendell dissenting. Arguing counsel were J. Michael Murray for the plaintiffs and Anne Murphy for the government.

Volokh Conspiracy analyzes a pending Third Circuit self-incrimination case

Orin Kerr just posted an interesting piece on the Volokh Conspiracy blog discussing a pending Third Circuit appeal.

His post is entitled, “The Fifth Amendment limits on forced decryption and applying the ‘foregone conclusion’ doctrine,” and his subject is United States v. Apple Macpro, No. 15-3537, a pending appeal from an EDPA civil contempt order for failing to provide passwords to decrypt a hard drive believed to contain child pornography. (A New York Times story on the underlying case is here.)

After discussing the parties’ briefs, which he links in his post, Professor Kerr suggests “a pretty simple Fifth Amendment rule:”

On one hand, the government can’t make you enter in the password if that is how they make the case that you know it. On the other hand, if the government already knows that you know the password, you can be required to enter it in without a Fifth Amendment bar.

Worth a read.

New criminal sentencing opinion

United States v. Thompson — criminal — affirmance — Greenaway

In 2014, the US Sentencing Commission amended the sentencing guidelines to retroactively reduce the advisory range for many drug-crime sentences. A defendant who was sentenced before the change can get the reduction too, but only if their sentence was “based on” the earlier higher range and the reduction would be consistent with Sentencing Commission policy, 18 USC § 3582. A different guideline range applies to career offenders, and that range didn’t go down.

Today’s appeal presents an interesting question: what about defendants who qualified to be sentenced using the career-offender range (which didn’t change) but who made a deal so that they actually were sentenced under the standard range (which did). Can they get the reduction?

The Sentencing Commission answered this question, unfavorably to defendants, in a policy statement called Amendment 759. But both of the defendants here committed their crimes before Amendment 759 was enacted, and they argued that applying it against them would be ex post facto punishment.

Today, the Third Circuit held that the defendants’ sentences were “based on” the lowered guidelines range but that reducing their sentences was not consistent with Sentencing Commission policy, and that applying the policy against them did not violate the ex post facto clause because denying them the reduction “does not lengthen the period of time they will spend incarcerated–it merely denies them the benefit of a discretionary reduction of that period of time.” (Offhand I’d have thought the sounder basis for rejecting the defendants’ position was that at the time of their crimes they had no grounds to expect a non-career-offender-range deal.)

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument; pending Third Circuit nominee Rebecca Haywood was one of the government’s attorneys.

Trump’s judge-bashing, closer to home

Perhaps you’ve noticed Republican presidential candidate Donald Trump in the news lately. This week, the main storyline has been Trump’s criticism of the California federal district court judge presiding over a suit over Trump University. Here’s one story among gazillions.

Yesterday’s New York Times featured an article headlined, “A Biased Judge? Donald Trump Has Claimed It Before.” As a Third Circuit junkie, here’s the passage that jumped out at me:

Mr. Trump ridiculed a Pennsylvania judge appointed by President Jimmy Carter as “not his most brilliant appointment,” and wrote that the judge was “a willing accessory” to any crimes of convicts she had released from prison.

He does this despite his close ties to a federal judge, Maryanne Trump Barry, his sister.

What? A Pennsylvania judge appointed by Carter? Was he talking about Judge Sloviter? The article didn’t say.

So I went digging. It turns out he wasn’t talking about Sloviter, he was talking about EDPA Judge Norma Shapiro. The comments are from Trump’s 2000 book The America We Deserve. Trump argues we need judicial elections because “Criminals are often returned to society because of forgiving judges” and “When they hurt us, we need to make sure we can vote them out of the job.” He muses “what wonders a public vote would work on the career of Norma Shapiro,” then describes a 90’s case where she ordered prisoners released due to prison overcrowding. (Here’s one contemporary news story.) He called the ruling a “disaster” and “Shapiro’s jailbreak,” and said:

From 1998 to 1992, 20 percent of thugs arrested for killing cops were out on probation or parole. In my opinion, Judge Shapiro was a willing accessory to all those crimes.

Trump went on to write, “Unfortunately, there are plenty of Shapiros out there, which is one major reason why our streets are full of dangerous convicts.” Conclusion: “Clearly we don’t have too many people in prison. Quite the contrary.”

I have not seen any reporting at all on whether Trump still believes federal judges should be elected, and he has largely avoided discussing criminal-justice reform.

So, not Sloviter, but still extraordinary.

New opinions — a major immigration reversal, and an Alito loss

Cen v. Attorney General — immigration — reversal — Krause

The Third Circuit today struck down an immigration regulation, and it’s hard for me to imagine what possessed the government to take the position it did. Here’s the introduction from today’s opinion:

The Immigration and Nationality Act (INA) allows a child under the age of twenty-one whose alien parent has married a U.S. citizen abroad to obtain a temporary “K-4” visa to accompany her parent to the United States and, based on the parent’s marriage, to apply to adjust her status to that of a lawful permanent resident. On a petition for review of a decision of the Board of Immigration Appeals (BIA), we now consider the validity of a regulation that makes it impossible for a child who entered on such a visa to remain with her family and adjust her status from within the United States if she was over the age of eighteen at the time of her parent’s marriage. Because the regulation departs from the plain language of the INA, contravenes congressional intent, and exceeds the permissible scope of the Attorney General’s regulatory authority, we conclude it is invalid. We therefore will grant the petition for review and will reverse and remand to the BIA for further proceedings.

The Seventh Circuit struck down the same regulation in 2013, but the government has continued to enforce it outside that circuit. The Third Circuit today held that the regulation failed at step two of Chevron analysis. The opinion is thorough, and vigorous: “the Government’s reading of § 1255(d) would transform K-4 visas for older K-4 children into nothing more than tourist visas, giving their holders only a glimpse of what life with their families might have been like in America before being sent home because they are legally incapable of fulfilling § 1255(a)(2)’s eligibility requirement. Such a reading defies common sense.”

Joining Krause were Shwartz and Greenberg. Arguing counsel were Scott Bratton for the petitioner and Robert Stalzer for the government.


1621 Rt 22 West Operating Co. v. NLRB — labor — affirmance — Jordan

If I were a circuit judge, would I be a little nervous about ruling against a party represented a Supreme Court Justice’s sister? I might. But that’s what the Third Circuit fearlessly did today, ruling in favor of the NLRB in a case where arguing counsel for the petitioner was Rosemary Alito, the Justice’s younger sister and quite a formidible lawyer in her own right.

The appeal arose out of a workplace union election. After the NLRB ruled that the employer engaged in anti-union activities, the employer argued for the first time on appeal that the NLRB’s acting general counsel was serving illegally and therefore his complaint and all that followed were invalid. The Third Circuit held that it lacked jurisdiction to hear this argument because it was not exhausted. The court also rejected the employer’s arguments that an NLRB member should have recused because his chief counsel had previously represented the union in this case but did not participate in the NLRB’s review, that its labor practices were legal, and that the NLRB imposed the wrong remedy.

Joining Jordan, who has been on an opinion tear lately, were Ambro and Scirica. Arguing counsel were Alito of K&L Gates for the employer and Jeffrey Burritt and Benjamin Shultz for the government.

News update

Yesterday Andrew Seidman had an article on Philly.com entitled “Arcane legal issue could keep Bridgegate list secret,” summarizing the parties’ recent Third Circuit filings.

On Friday Nick Rumell had this article on Courthouse News Service entitled “Pa’s Ballot Access Rules Unfair to Third Parties,” discussing the Third Circuit’s ruling last week in Constitution Party and quoting prevailing counsel.

An interesting divided-panel employment-discrimination case that’s unpublished

I rarely blog about the Third Circuit’s non-published opinions, but the court issued one today which readers may find interesting. The case is Young v. City of Philadelphia Police Dept.

The appeal arises from a Title VII retaliation suit brought by a woman against the Philadelphia Police. The gist of her complaint is that, after she filed a sexual-harassment complaint against a fellow police trainee, the department retaliated by commencing a campaign of disciplinary write-ups for minor violations that she’d never been punished for before her complaint.

Title VII retaliation claims proceed in 3 stages: (1) the plaintiff must make a prima facie case of retaliation, (2) the employer must provide a legitimate non-discriminatory reason for its adverse employment action, and (3) the plaintiff must prove that the proffered explanation was pretextual and retaliation was the real motive. Here the district court granted summary judgment in favor of the employer. It ruled that the plaintiff failed at the first, prima facie stage because she did not show that retaliation was the  but-for cause for her discipline.

All three members of the Third Circuit panel agreed that the district court was wrong to require but-for causation at the first, prima facie stage. The majority opinion observed that the district court’s error was understandable “[b]ecause we have not stated in a precedential opinion that ‘but for’ caustion is not required at the prima facie stage of summary judgment analysis.”

The panel majority (Shwartz joined by Greenaway) affirmed anyway, ruling that the plaintiff failed to carry her burden at the the third, pretext stage. Vanaskie dissented because he believed the plaintiff’s pretext showing created a material issue of fact sufficient to survive summary judgment.

I have a few thoughts:

First, the opinion says the district court was wrong to require but-for causation at the prima facie stage, and it expressly acknowledges that no prior precedential opinion so holds. So why the heck is this opinion unpublished?

Second, the fact that there’s a dissent on the pretext issue adds a least a little to my surprise that it’s unpublished. While there’s certainly no rule that says that divided-panel opinions have to be published, they often are.

Third, the way the panel split here is interesting. I consider Vanaskie to be generally more conservative than Greenaway or Shwartz (see, for example, his recent en banc voting record), but most would consider his position here (favoring an employment-discrimination plaintiff) more liberal.

Finally, on a first read I found Vanaskie’s dissent pretty persuasive. But I’d be surprised if the votes are there for en banc rehearing.

Anyway, interesting case, and happy Friday.

An update on en banc petitions

A couple quick updates on the Third Circuit’s en banc rehearing front:

First, the court denied en banc rehearing in the NFL concussion-suit case. Media coverage here and here and in interesting blog post here.

Second, the panel losers in In re Asbestos Products Liability (panel decision post here) filed earlier this week for en banc and panel rehearing, coverage here.

Finally, I’ve got a hunch that draft opinions are circulating already in the Chavez v. Dole Food case argued en banc in February.

Third Circuit affirms ruling striking down PA third-party ballot-access limits, and wallops the AG

The Constitution Party of Pa. v. Cortes — election law — affirmance — Smith

The Third Circuit has been issuing some fascinating opinions over the past few weeks, and today brings another. The court affirmed a summary judgment grant in favor of several political parties who challenged Pennsylvania’s election-law system for making it too difficult for third parties to get on the ballot.

The defendants in the case were two state elections officials, and they were represented on appeal by the office of the PA attorney general. The officials did not challenge the substance of the district court ruling that the state’s ballot-access provisions were unconstitutional as applied. Instead, the officials appealed only two issues their brief characterized as “relatively narrow” and “more technical,” namely whether the district court’s order was invalid because it denied a facial challenge but accepted an as-applied challenge and whether the plaintiffs sued the wrong state officials.

The opinion amounts to a brutal indictment of the competence of the OAG’s advocacy in the case, an indictment all the more remarkable coming from one of the court’s most even-tempered judges. On the first appeal issue, the appellants “misunderstand[] the fundamental difference between facial and as-applied challenges.” Ouch. On the second issue, their position “falls apart once one properly understands the District Court’s opinion” and “is, to say the least, off the mark.” Pow.

Perhaps the most withering criticism comes in a footnote discussing the appellants’ decision not to challenge the district court’s ruling that the plaintiff’s constitutional rights were violated (emphasis mine):

In its opening brief, the Commonwealth notes that “[t]he legal rub here is that, even assuming some constitutional injury, or potential injury, has been inflicted on the litigants . . . that injury was not and could not be inflicted by the two officials they sued . . . .” Appellants’ Br. at 3. The Commonwealth then makes the two arguments discussed above but never addresses the District Court’s opinion on the merits. The Aspiring Parties take note of this and state that “the Commonwealth concedes that the challenged statutory scheme is unconstitutional as applied to the Minor Parties.” Appellees’ Br. at 28. In its reply, the Commonwealth argues that “[t]here was no concession.” Appellants’ Reply Br. at 3. Instead, the Commonwealth tries to argue that somehow they were able to dodge the merits of this case by assuming an injury and only raising these narrower issues on appeal. This displays a fundamental misunderstanding of the federal appellate process: by not challenging the merits of the District Court’s order, if the Commonwealth loses on the two arguments it raised in this appeal, the order will remain in effect and the Commonwealth will not be able to enforce both provisions against the Aspiring Parties. Indeed, at oral argument the Commonwealth conceded that this was a conscious decision, but when asked why it chose such a litigation strategy, its answer was more opaque than illuminating. See Oral Argument at 00:10:20, Cortes v. Constitution Party of Pa., (No. 15-3046).

Language like that is rare in this circuit; seeing it directed at lawyers in an office of a state attorney general is extraordinary. What a disaster.

Joining Smith were Ambro and Krause. Arguing counsel were Oliver Hall of the Center for Competitive Democracy for the third-party challengers and Claudia Tesoro of the Office of the Attorney General, joined on the brief by three other OAG lawyers and one law firm lawyer, for the state officials.

Divided panel issues significant abortion-clinic-access ruling

Bruni v. City of Pittsburgh — First Amendment — vacate in part — Jordan

The overwhelming majority of circuit court decisions are uncontroversial and essentially non-ideological. This ain’t one of them.

The Third Circuit today vacated an order dismissing First Amendment challenge to Pittsburgh’s ordinance prohibiting certain speech within fifteen feet of health care facilities. The suit was brought by five plaintiffs who “engage in what they call ‘sidewalk counseling’ on the public sidewalk outside of a Pittsburgh Planned Parenthood facility in an effort, through close conversation, to persuade women to forego abortion services.”

The blockbuster language from Jordan’s opinion:

Considered in the light most favorable to the Plaintiffs, the First Amendment claims are sufficient to go forward at this stage of the litigation. The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment, and the City cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the City’s legitimate, substantial, and content-neutral interests. McCullen teaches that the constitutionality of buffer zone laws turns on the factual circumstances giving rise to the law in each individual case – the same type of buffer zone may be upheld on one record where it might be struck down on another. Hence, dismissal of claims challenging ordinances like the one at issue here will rarely, if ever, be appropriate at the pleading stage. Instead, factual development will likely be indispensable to the assessment of whether an ordinance is constitutionally permissible.

Fuentes disagreed:

I agree with the majority that the allegations in the Complaint, taken as true, establish that Pittsburgh’s Ordinance restricting certain speech within 15 feet of designated health care facilities violates the intermediate-scrutiny standard for time, place, and manner regulations. I disagree, however, with the majority’s reasoning in support of that result. In particular, I disagree with its conclusion that the Supreme Court’s decision in McCullen v. Coakley requires governments that place “significant” burdens on speech to prove either that less speech-restrictive measures have failed or that alternative measures were “seriously” considered and “reasonably” rejected. That interpretation distorts narrow-tailoring doctrine by eliminating the government’s latitude to adopt regulations that are not “the least restrictive or least intrusive means of serving the government’s interests.” Nothing in McCullen or the Supreme Court’s First Amendment jurisprudence requires us to apply such a rule. Accordingly, as to Plaintiffs’ free-speech claim, I concur only in the judgment.

In an especially strongly worded footnote, the majority fired back (emphasis mine):

The concurrence repeatedly tries to downplay the significance of McCullen – variously referring to the opinion as “incremental,” “modest,” and “unexceptional” (Concurrence at 4-5) – and devotes much of its energy to narrowing that case only to its facts. It does so, presumably, in service of a desire to avoid the import of the Supreme Court’s decision. Consider our colleague’s reading of McCullen: “[u]nlike the majority, I do not believe that McCullen announces a general rule requiring the government to affirmatively prove that less-restrictive measures would fail to achieve its interests.” (Concurrence at 1-2.) Then try to reconcile that with the actual language of McCullen: “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” 134 S. Ct. at 2540. We are more ready than our colleague is to take the high Court at its word, and that is the heart of our disagreement with him.

I’d certainly expect a petition for en banc rehearing here. I’m not making any prediction about whether it would be granted, but I expect it would get a very careful look.

Joining Jordan was Vanaskie; Fuentes joined in part and concurred in the judgment on the First Amendment issue. Arguing counsel were Matthew Bowman (a CA3 Alito clerk) of the Alliance Defending Freedom for the challengers and Matthew McHale for the city.

Is the Third Circuit a “Judicial Hellhole?”

H. Sherman “Tiger” Joyce, president of the American Tort Reform Association, had a column on WashingtonTimes.com yesterday (link here) criticizing the Third Circuit’s 2015 ruling in In re Avandia Marketing. Joyce argues that RICO suits challenging drug-company marketing such as Avandia Marketing are an “important and obvious misuse of RICO” and he urges the Supreme Court to review the case.

Of note to Third Circuit readers:

The good news is that most courts have seen through the lie. * * *

But in Philadelphia, once criticized by The Wall Street Journal as “The City of Unbrotherly Torts” and twice in the past six years ranked by my organization as the worst of the nation’s civil court “Judicial Hellholes,” a federal trial judge denied GlaxoSmithKline’s motion to dismiss the dubious fraud claims of three labor union-affiliated health insurers. And splitting with three other circuit courts, the U.S. Third Circuit Court of Appeals recently upheld the trial court’s decision to proceed with the case.

So GSK has appealed again to the U.S. Supreme Court, which now has a chance to clarify the law and end this pernicious new line of legal extortion that will only exert more upward pressure on drug prices as still higher litigation costs are passed on to consumers. Justices are expected to meet June 2 to decide on additional cases they’ll hear next term, and everyone concerned about the affordability of medicines should hope they agree to hear this appeal.

If the Third Circuit’s decision is allowed to stand, opportunistic personal injury lawyers, their third-party payer clients and even some politically ambitious state attorneys general will be encouraged to misuse frivolous RICO lawsuits every time a pharmaceutical company changes warning label language in the interest of public safety.

The circuit court’s loose application of well-settled RICO causation and injury principles, and its disregard of general pleading standards under the Supreme Court’s Twombly and Iqbal decisions, can only invite third-party payers to seek windfalls — even if they never directly relied on a drug company’s allegedly fraudulent marketing or suffered an injury.

So Ambro, Scirica, and Roth, plus Rufe, all got bamboozled into loosely applying RICO and disregarding general pleading standards, huh? Color me skeptical.


Civ Pro refresher: suing the wrong defendant isn’t a standing issue

Davis v. Wells Fargo — civil — vacate in part — Jordan

The Third Circuit vacated in part in this messy civil appeal arising out of a foreclosure dispute between a homeowner, Wells Fargo bank, and an insurer. The court affirmed dismissal of the homeowner’s claims against Wells Fargo on claim preclusion and statute-of-limitations grounds. But the court reversed the dismissal of claims against the insurer. The district court had dismissed the case on standing grounds because the homeowner sued the wrong corporate entity, but the Third Circuit explained that “this case is not about standing at all” and that whether plaintiff sued the right defendant should have been decided under Rule 12(b)(6), not 12(b)(1). The opinion gives a lucid analysis of when each rule applies and why it matters.

While affirming dismissal of the claims against Wells Fargo, the court included this striking footnote:

Although we affirm the District Court’s dismissal of Davis’s claims against Wells Fargo, we would be remiss if we did not add a note about the disturbing allegations he has made. If they are true, the bank locked Davis out of his home before starting foreclosure proceedings, initiated a series of fraudulent assignments of the mortgage, and obtained insurance on the Property as part of a kickback scheme with the insurer while Davis paid excessive premiums. Although the insurance should have covered the leak and damage to the wall, Wells Fargo allegedly settled the damage claim for a payment of $317 – for roof repairs – but then took no action to actually repair the roof. And all of this took place during and around the time that Davis was serving three years of active duty in the United States Army in a time of war.

When asked about those facts during oral argument, Wells Fargo did not dispute their veracity, nor did its counsel seem particularly concerned about the brazenly exploitative character of the alleged actions of the bank. In one telling portion of the argument, when asked whether the bank had the right to make an insurance claim, take money for a roof repair, and then pocket that money and not make the repair, all while knowing the result could be further deterioration and structural damage to the Property, counsel said simply, “that is what the mortgage gives them the right to do.” See Oral Argument, http://www2.ca3.uscourts.gov/oralargument/audio/15-2658Davisv.WellsFargo.mp3, at 19:13-19:38 (argued March 2, 2016). If the allegations are true, they raise serious questions about bad faith that we are not now in a position to address. Suffice it to say, however, that although we affirm the dismissal of Davis’s claims, we hope the allegations of the amended complaint do not reflect Wells Fargo’s actual business practices.

Congratulations, Wells Fargo and counsel on your appellate victory!

Joining Jordan were Greenberg and Scirica. Arguing counsel were Earl Raynor for the homeowner, Stacey Scrivani of Stevens & Lee for Wells Fargo, and Matthew Faranda-Diedrich of Dilworth Paxson for the insurer.

A rare dissent from denial of rehearing en banc

Easy to miss among the unpublished opinions issued today was an order denying rehearing en banc in United States v. Kelly. The panel opinion, also unpublished, is here. It was authored by Greenaway and joined by Scirica and Roth.

Here’s the interesting part: four judges (McKee, joined by Ambro, Smith, and Restrepo) dissented from the denial of rehearing. Any dissent from denial of rehearing is quite rare in the Third Circuit. It’s rarer still given that the panel opinion was both unpublished and unanimous, and that none of the dissenters sat on the panel.

The heart of the issue is how jurors are instructed in drug-conspiracy cases, specifically whether those instructions unjustly expose mere purchasers to criminal liability as conspirators. McKee’s opinion explains his basis for dissenting in this introduction:

I appreciate that the panel’s decision in this case was
dictated by circuit precedent and that my colleagues therefore
felt compelled to affirm the jury’s determination that Kelly’s
membership in the Alford drug distribution conspiracy had
been proven beyond a reasonable doubt. However, I take the
unusual step of filing this opinion sur denial of rehearing to
explain why we have made a mistake by not availing
ourselves of this opportunity to reexamine our jury
instructions in drug conspiracies. I do so even though this
appeal has been resolved in a non-precedential opinion
because our current approach to informing jurors how to
distinguish between a purchaser from a drug conspiracy and a
member of that conspiracy is so meaningless that it presents
the illusion of an objective standard while furnishing no
guidance to jurors who must make this crucial distinction.

Our current standard for channeling a jury’s inquiry in
such prosecutions fails to provide a jury with sufficient
guidance to allow jurors to appropriately differentiate
between customers and co-conspirators. Although some of
our factors may be relevant to this inquiry, the irrelevant
factors I discuss below create the very real danger of placing
a thumb on the conspiratorial side of the scale and thereby
tipping the balance in favor of a conviction for conspiracy
when only a buyer-seller relationship has been established.
Because there is no way of knowing how this jury would have
viewed the circumstantial evidence against Kelly if that
additional weight had not been added to the conspiratorial
side of the scale, I believe this case “involves a question of
exceptional importance,” meriting en banc reconsideration.
Fed. R. App. P. 35(a).

He concludes thus:

Given the extent to which illegal drugs and illegal drug
sales continue to devastate and destroy lives and
communities, I have no doubt that we will have another
opportunity to revisit the factors we use in attempting to
distinguish between purchasers and co-conspirators.
Regrettably, in the interim we also will no doubt expose
numerous purchasers of drugs (even those who purchase
merely to “feed” their own addiction) to the exponentially
greater penalties that attach to being a member of a drug
conspiracy. I therefore take this opportunity to express my
concern that we are failing to afford jurors the guidance they
need and that the law requires in deciding whether evidence is
sufficient to establish guilt beyond a reasonable doubt in
cases such as this. Worse yet, the “guidance” that we do give
jurors is not only less than helpful, it is misleading because it
can be an open invitation to convict mere purchasers of illegal
drugs of the far more serious crime of being a member of a
drug conspiracy. Accordingly, I now echo the concern
expressed by Judge Becker a decade and a half ago and
explain why we should avail ourselves of this opportunity and
grant Kelly’s petition for rehearing.

Thirteen judges participated in the en banc rehearing decision, so the dissenters apparently fell three votes short, with five judges appointed by Democratic presidents not dissenting.

(I say “apparently” because nothing requires a judge who voted in favor of rehearing en banc to dissent from the denial. So it’s theoretically possible that one or two judges voted to grant rehearing but declined to join McKee’s dissent or issue their own.)

Two new opinions — a big telecom case and a little criminal-sentencing case

Stirk Holdings v. FCC — agency / telecom — vacate and remand — Ambro

Here is the remarkable introduction to Judge Ambro’s remarkable opinion today scolding the FCC:

Twelve years have passed since we first took up challenges to the broadcast ownership rules and diversity initiatives of the Federal Communications Commission (“FCC” or “Commission”). In some respects the Commission has made progress in the intervening years. In key areas, however, it has fallen short. These shortcomings are at the center of this dispute—the third (and likely not the last) round in a protracted battle over the future of the nation’s broadcast industry. Specifically, the parties present challenges to the Commission’s “eligible entity” definition, its Quadrennial Review process, and its rule on television joint sales agreements.
Although courts owe deference to agencies, we also recognize that, “[a]t some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.” Public Citizen Health Research Group v. Chao, 314 F.3d 143, 158 (3d Cir. 2002) (emphasis and internal quotation marks omitted). For the Commission’s stalled efforts to promote diversity in the broadcast industry, that time has come. We conclude that the FCC has unreasonably delayed action on its definition of an “eligible entity”—a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership—and we remand with an order for it to act promptly.

Equally troubling is that nearly a decade has passed since the Commission last completed a review of its broadcast ownership rules. These rules lay the groundwork for how the broadcast industry operates and have major implications for television, radio, and newspaper organizations. Although federal law commands the Commission to conduct a review of its rules every four years, the 2006 cycle is the last one it has finished; the 2010 and 2014 reviews remain open. Several broadcast owners have petitioned us to wipe all the rules off the books in response to this delay—creating, in effect, complete deregulation in the industry. This is the administrative law equivalent of burning down the house to roast the pig, and we decline to order it. However, we note that this remedy, while extreme, might be justified in the future if the Commission does not act quickly to carry out its legislative mandate.

Whereas the first two issues before us involve agency delay, the third is a challenge to agency action. The Commission regulates the number of television stations a company can own. In 2014, it determined that parties were evading its ownership limits through the influence exerted by advertising contracts known as joint sales agreements. As a result, it created a rule designed to address this perceived problem. However, we conclude that the Commission improperly enacted the rule; hence we vacate it and remand the matter to the Commission.

Ambro was joined by Fuentes; Scirica dissented in part because he would have gone further and ordered the FCC to issue its 2010 quadrennial review within 6 months. Arguing counsel were David Gossett for the FCC, and Helgi Walker of Gibson Dunn, Patrick Philbin of Kirkland & Ellis, and Georgetown Law professor Angela Campbell for various petitioners/intervenors.


United States v. Nerius — criminal sentencing — affirmance — Shwartz

Jean Nerius was convicted of two crimes. He was classified as a career offender at sentencing, resulting in a sentencing guidelines range of 37 to 46 months. Although his pre-sentencing prison-discipline record was bad, the judge sentenced him at the bottom of that range, 37 months. But the career-offender designation was error, so Nerius was resentenced. This time his guideline range was 30 to 37 months. And since his original sentencing his disciplinary record had been spotless. But this time the sentencing judge sentenced him to 36 months, near to top end of the guideline range and just one month less he’d gotten than when he was deemed a career offender.

On appeal, Nerius argued that his new sentence was presumptively vindictive — that the sentencing judge should be presumed to have punished him for winning his first appeal by going from a bottom-of-the-old-range sentence to an-almost-top-of-the-new-range sentence, when the only thing that had apparently changed since the first sentencing (besides the fact that he was no longer deemed a career offender) was that he’d been a model prisoner for the past two years.

Today, the Third Circuit rejected Nerius’s argument and affirmed his sentence. The panel said that no presumption of vindictiveness applies because the new sentence was shorter than the old one, period. The fact that the sentence went from the bottom of the guideline range to near the top, with no intervening bad acts, did not trigger the presumption.

If you believe that sentencing judges put much stock in guidelines ranges and career-offender designations, you’re more likely to think this ruling is unjust. If you don’t, well, you probably don’t. In that vein, it’s interesting that the panel consisted of two former district judges and one former magistrate judge.

Joining Shwartz was Smith and Hardiman. The case was decided without oral argument.

A divided panel applies civil rules strictly to dismiss an appeal as untimely

State National Insurance v. County of Camden — civil — dismissal — Fisher

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal because the appeal was untimely. It’s an interesting case both factually and legally.

The appeal was brought from dismissal of a legal malpractice suit. The legal malpractice suit, in turn, arose from a civil suit. A person injured in a car crash sued Camden County alleging negligent maintenance. The county had an insurance policy with a $10 million limit. The lawyer who represented the county allegedly told the insurance company (belatedly) that the case was meritless and she valued it at $50,000. But after a trial the jury awarded the victim $31 million, later remitted to $19 million. Four days later, the insurer sued the county and the attorney. (Actually, the former attorney — her Linkedin page states that she took “a very early retirement,” moved to another state, and became a realtor.)

Now here’s where things get tangled procedurally. The insurer’s original complaint against the lawyer — one of the 2 defendants — was dismissed in 2010. The insurer filed a motion to reconsider that ruling under Rule 59(e), and also a motion to certify an immediate appeal under Rule 54(b), both of which were denied. For the next four years, the insurer litigated its claims against the other defendant, the county. The district court eventually denied the insurer’s motion for summary judgment. The insurer believed that this denial undermined the basis for the earlier dismissal of the claims against the lawyer, so it sought to reinstate those claims under Rule 60(b)(6), and the court ordered briefing on the motion. While motion to reinstate the claims against the lawyer was pending, the insurer and the county settled the claims against the county, The joint stipulation of dismissal between the insurer and the county recited that the insurer wanted to renew its claims against the lawyer. The district court then denied the motion to reinstate the claims against the lawyer, and 15 days later the insurer filed a notice of appeal from the denial of the motion to reinstate the claims against the lawyer. FRAP 4 provides 30 days to file a notice of appeal after entry of judgment or the order appealed from.

The appeal turned on whether the insurer’s appeal involving its claims against the lawyer was timely, and the panel split. The majority (Fisher joined by Chagares) held that the appeal was untimely. Rule 60(b)(6) gives district courts authority to undo final judgments, it explained, and at the time when the insurer filed its 60(b)(6) motion the judgment was not final because the claims against the county remained pending. Thus Rule 60(b)(6) “was not a proper avenue by which to challenge” dismissal of the claims against the lawyer, and as a result the majority treated it as a nullity. And, while district courts also have inherent power to reconsider prior interlocutory orders, that power ends when the court loses jurisdiction, which the majority held happened when it entered a voluntary stipulation of dismissal of the claims against the county, even though no entry of judgment resulted from that. And because the 60(b)(6) motion was “not a proper Rule 60(b) motion,” the majority ruled that it could not toll the appeal-filing deadline under FRAP 4(a)(4)(A). The majority acknowledged that its ruling was “strict.”

Judge Jordan dissented, beginning:

The Majority acknowledges that its interpretation of the operative rules of procedure is “strict.” But the interpretation goes beyond strict: with all respect, it is wrong.

He reasoned:

As the Majority would have it, State National could only maintain its appeal rights by choosing between two bad alternatives: it could abandon its settlement of its separate claim against the County, or it could appeal the dismissal of the claims against Whiteside even as the District Court was actively reconsidering that dismissal. The federal rules of civil procedure and of appellate procedure are meant to permit the “just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, and to allow district courts to fully resolve all issues in the first instance so that appellate review is not “piecemeal,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). It would therefore be strange if the rules really did put State National in that bind.

In Jordan’s view, the insurer’s Rule 60 motion to reinstate the claims against the lawyer kept those claims open until the court ruled on the motion. He disagreed that the district court lost its power to reinstate the claims against the lawyer when the claims against the county were voluntarily dismissed, and also disagreed that the Rule 60(b) motion was a nullity because it was filed before the voluntary dismissal. In a footnote, he noted that the majority “are abolishing Rule 60(b) relief for parties in [the insurer’s] position” because any motion would be too early, too late, or, as here, both.

I’m betting the farm that the insurer will seek rehearing en banc, and rare though en banc rehearing is, I think such a motion has a realistic chance of being granted here. On first reading, I find the dissent’s analysis more persuasive. It’s one of the strongest Third Circuit dissents I’ve seen in recent years.

As noted, Fisher was joined by Chagares and Jordan dissented. Arguing counsel were Walter Andrews of Hunton & Williams for the insurer and Michael Canning and Matthew Fiorovanti of Giordano Halleran for the appellee.


New opinion — Court affirms plaintiffs’ win in overtime suit

Mazzarella v. Fast Rig Support — employment — affirmance — Shwartz

Two trucking companies hired drivers to haul water used for fracking. Although the drivers often worked more than 40 hours per week, the companies only paid them overtime above 45 hours per week. The drivers sued, alleging that the failure to pay them overtime for all hours over 40 per week violated the Fair Labor Standards Act. The companies argued that they were exempt from FSLA’s overtime rules per the Motor Carrier Act. The district court ruled that the companies failed to prove they met the MCA exemption. Today, the Third Circuit affirmed, noting that, while the defendants’ brief was filled with factual assertions, the record evidence they actually introduced was not enough to meet their burden.

Joining Shwartz were Smith and Hardiman. The case was decided without oral argument.


New opinion — a NEPA affirmance

Maiden Creek Assocs v. U.S. Dept. of Transp. — environmental — affirmance — Barry

The Third Circuit today affirmed an order dismissing a complaint brought under the National Environmental Policy Act and denying the plaintiffs’ motion to amend. The NEPA claim challenged some highway work that a developer and a township board believed would impede a planned shopping center.

Joining Barry were Fisher and Rendell. Arguing counsel were Marc Kaplin for the developer, Christopher Garrell for the township board, James Maysonett for the government, and Kenda Jo Gardner for the state department of transportation.

Now it’s Hardiman’s turn in the Trump-media glare [updated]

For several months, Judge Barry has been the Third Circuit judge in the national media spotlight in connection with the Trump presidential campaign. But that all changed yesterday when Trump included Hardiman on his list of 11 potential Supreme Court nominees.

My post yesterday collected conservative praise of Trump’s list and the couple early stories featuring Hardiman. UPDATE: Here’s another, from David Lat on Abovethelaw.

Since then more Hardiman coverage has emerged. A Wall Street Journal analysis of the 11 said this about Hardiman:

Judge Thomas Hardiman, 50, joined the Third U.S. Circuit Court of Appeals in 2007, after serving as a district court judge in Pennsylvania for four years. Both appointments came from George W. Bush. A graduate of University of Notre Dame and Georgetown University Law Center, he worked in private practice at Skadden, Arps, Slate, Meagher & Flom LLP and other law firms before becoming a judge. The Trump campaign says he’s the first in his family to attend college. In a decision he authored, which was later affirmed by the U.S. Supreme Court, the appeals court held that a jail’s policy of strip-searching all detainees, even those with minor alleged offenses, wasn’t a violation of the Fourth Amendment.

A Washington Post analysis of the 11 by Amber Phillips included this:

Hardiman is a judge on the U.S. Court of Appeals for the 3rd Circuit and also a George W. Bush appointee. He’s a Georgetown Law School graduate and has written two majority opinions that were reviewed by the Supreme Court: one supporting the strengthening of mandatory minimum sentences for criminals, and the others supporting a Pennsylvania jail’s policy of strip-searching the people it arrests, arguing that it does not violate a person’s Fourth Amendment right of unreasonable searches and seizures.

Arch-liberal Mark Joseph Stern of Slate had this:

Then there’s Thomas Hardiman. Another Bush appointee, Hardiman is a law and order guy. He wrote an opinion affirming the constitutionality of a jail’s policy to strip search every single arrestee—even those brought in for minor traffic offenses. (Regrettably, the high court narrowly upheld his decision.) In a different case, Hardiman wrote that there is no clearly established First Amendment right to videotape law enforcement officers in public—an extremely dubious if not outright incorrect proposition. Hardiman reads the Second Amendment quite broadly, arguing that states cannot restrict residents’ ability to carry handguns in public. And while he interprets the First Amendment broadly in the realm of campaign contributions, he takes a very narrow view of students’ free speech rights. Sound familiar?

Ron Brynaert of Dailycaller had this critical look at one of the same cases mentioned by Stern, Hardiman’s opinion in a 2010 case affirming summary judgment in favor of a police officer and ruling that there was no clearly established right to videotape officers during a traffic stop. (Neither article mentions the important fact that Hardiman’s opinion was joined in full by McKee and Pollak by designation.)

UPDATE: another liberal take, by Ian Millhiser on Thinkprogress, is here. He calls Hardiman “one of the more enigmatic names on Trump’s list” and says “he appears to have had more luck steering away from controversial cases,” resulting in “a thinner ideological profile than some of the other names on Trump’s list.”

Finally, Paul Gough had this brief profile of Hardiman in the Pittsburgh Business Times.

UPDATE: here’s a thoroughly reported critical profile of Hardiman by Rich Lord in Pittsburgh CityPaper from way back in 2003, when Hardiman’s WDPA nomination was pending.

And Laura Olson has this profile of Hardiman in the Allentown Morning Call, citing the 2003 profile and noting his bipartisan political ties.


Trump names Hardiman as one of his possible Supreme Court picks [updated]

Presumptive Republican presidential nominee Donald Trump today released a list of 11 potential Supreme Court justice nominees that he would vet to fill Justice Scalia’s seat, the Associated Press reports.

Among those on the list: Third Circuit Judge Thomas Hardiman.

[Hat tip to How Appealing.]


UPDATE: Early conservative commentary has been enthusiastic about Trump’s list but has little to say about Hardiman specifically:

Ilya Shapiro at Cato

John Yoo at National Review

Jim Geraghty at National Review

Paul Mirengoff at Powerline


UPDATE 2: Here is some good early Hardiman-focused coverage:

Brian Bowling at TribLive

Gina Passarella at Legal Intelligencer


Bridgegate appeal panel announced

The Third Circuit has just updated its argument calendar to indicate that the panel for the Bridgegate appeal, North Jersey Media Group v. United States, will be Ambro, Jordan, and Scirica. (Sorry, media, no Barry.) The listing is here.The argument will be at 3 p.m. on June 6 in the Maris courtroom, and it will be the only argument the panel hears.

As I noted earlier today, the panel reportedly will decide whether the argument will be open to the public based on briefing on that question due today.

You still don’t have a constitutional right to own an M-16 machine gun

United States v. One Palmetto State Armory — Civil / Second Amendment — affirmance — Thompson

The Second Amendment does not give people the right to own machine guns, the Third Circuit held today. And would-be machine gun owners can’t dodge the federal law against machine-gun possession by just creating a trust to own it instead.

Joining Thompson D-NJ were Ambro and Krause. Arguing counsel were Stephen Stamboulieh for the would-be machine gun owner and Patrick Nemeroff for the government.


Bridgegate appeal update

Tim Darragh has an informative update on the Bridgegate appeal this morning at NJ.com. Darragh reports that the Third Circuit ordered the parties to file briefs today on whether the June 6 oral argument should be open to the public, and next week on whether the as-yet-unnamed appellant gets to stay anonymous. He also reports that the media parties last night filed a motion to reconsider challenging Judge Ambro’s stay blocking release of the names.

Third Circuit panel will hear argument on Bridgegate disclosure; media fixates on Barry’s role

The long-simmering Bridgegate scandal will make its way to the Third Circuit next month, when a panel of the court hears argument on whether to release the names of the unindicted co-conspirators, per an order reportedly signed today by Judge Ambro.

Much of the early media coverage on the order focuses on whether Judge Barry would recuse herself from the panel, given that Governor Christie is both a central figure in the Bridgegate scandal and a top supporter of Barry’s brother, presumptive Republican Presidential nominee Donald Trump. Here are links to stories by Gawker, Twitchy, and Politico.

UPDATE: and here’s another, by Philip Bump for the Washington Post, that begins, “A clear disclaimer at the top: There is a chance — an outside, unlikely chance — that this happens.”

Of course, the odds of Barry (or any other individual judge) being even assigned to any particular three-judge panel are fairly low, and if she chose to recuse she likely would be replaced without the public ever knowing.

But even if there ends up not being any Barry angle, I expect this to remain a high-profile case for the court.

Two new opinions

Fair Housing Rights Ctr v. Post Goldtex — housing –affirmance — Nygaard

Today, the Third Circuit answered this “somewhat abstruse” housing-law question: “do the design and accessibility requirements of the Fair Housing Act (FHA), 42 U.S.C. § 3604(f)(3)(C), apply to a commercial building that was originally constructed before the requirements’ effective date, but converted into residential units after that date?” HUD had answered the question in the negative, and, applying Chevron deference, the Third Circuit today agreed.

Joining Nygaard were Fuentes and Smith. The case was decided without argument.


MRL Development v. Whitecap Investment  — civil — affirmance — Fisher

The plaintiffs bought treated lumber for the deck of a vacation home, but the lumber didn’t last, and the plaintiffs sued. The district court ruled that the suit was time-barred and granted summary judgment. Today the Third Circuit affirmed, applying the gist-of-the-action doctrine (which bars tort claims that merely replicated contractual claims).

Joining Fisher were Krause and Roth. Arguing counsel were Thomas Wilkinson of Cozen O’Connor for the appellants and Alex Moskowitz, Andrew Kelly, and Robert Carlson for the appellees.

New opinion — Third Circuit reverses on civil-procedure error

In re: Asbestos Prods. Liability — civil — reversal — Hardiman

A railroad worker was exposed to asbestos used for insulation on railcars. He contracted asbestosis and mesothelioma and sued the railcar manufacturers under state law. The defendants argued that the state-law claims were pre-empted, and the district court agreed and dismissed the suit. Today the Third Circuit reversed, holding that the district erred procedurally by dismissing based on facts that were not pled in the complaint. The court acknowledged that the district court could treat the motion as one for summary judgment instead of dismissal, but held that summary judgment was not appropriate here either because the defendants did not provide evidentiary support for the district court’s factual finding, or, at a minimum, there was a factual dispute and the court had to draw inferences in the non-movant’s favor.

Joining Hardiman were Ambro and Nygaard. Arguing counsel were John Roven of Houston for the appellant (joined on the brief by Howard Bashman ) and Holli Pryer-Baze of Akin Gump and Joseph Richotte for the appellees.

New opinion — a bankruptcy affirmance

In re: Net Pay Solutions — bankruptcy — affirmance — Hardiman

The Third Circuit today upheld a district court’s rulings in a bankruptcy case denying the debtor’s motions to avoid five preferential transfers. The debtor made five tax payments for its clients the day before it went out of business, and it sought to recover the funds in bankruptcy, but the court held that four were minimal as to each creditor and the fifth did not involve the debtor’s property because it was only held in trust.

Joining Hardiman was Smith; Sloviter had been on the panel before she assumed inactive status. Arguing counsel were Markian Slobodian as debtor’s trustee and Ivan Dale for the government.

New opinion — ‘interesting tax-accounting appeal’ is not an oxymoron, apparently

Giant Eagle v. Commissioner — tax — reversal — Roth

A supermarket offered its customers a discount on gas purchases: for every $50 spent on groceries, they got 10 cents off a future gas purchase. Naturally, at the end of the tax year, there were customers who had earned a gas discount but had not yet redeemed it. In its taxes, the supermarket claimed those earned-but-not-yet-redeemed discounts as deductions, reducing the total amount outstanding by past redemption rates. The IRS and the tax court disallowed the deductions, but today a divided Third Circuit reversed, ruling in the supermarket’s favor.

Joining Roth was Fisher; Hardiman dissented. Both opinions are excellent. Arguing counsel were Robert Barnes of Marcus & Shapira for the supermarket and Julie Avetta (who had quite a wedding announcement) for the government.

New opinions — two civil affirmances

Eisai, Inc. v. Sanofi Aventis — civil — affirmance — Roth

The Third Circuit today affirmed summary judgment in favor of the defendant in an antitrust case. Pharma giant Sanofi used various marketing strategies to sell its anticoagulant drug Lovenox. The court ruled that these strategies may have harmed Sanofi’s competitors, but the competitors did not show they cause broad harm to the competitive nature of the anticoagulant market.

Joining Roth were Ambro and Fuentes. Arguing counsel were Jay Fastow of Ballard Spahr for the appellant and George Cary of Cleary Gottlieb for the appellees.


Davis v. City of Philadelphia — civil / tax — affirmance — Hardiman

The Third Circuit today held that federal protections limiting penalties for late property-tax payments for active-duty servicemembers do not apply to taxes owed by a corporation solely owned by the servicemember. The city was represented on appeal by private counsel, apparently not an appellate specialist, and in a footnote the court rejected the city’s “odd suggestion” about the applicable standard of review. The court also rejected the parties’ view that the key issue in the case was standing.

Joining Hardiman were McKee and Smith. The case was decided without argument.

New opinion — a Fourth Amendment reversal

U.S. v. Vasquez-Algarin — criminal / Fourth Am. — reversal — Krause

The Third Circuit today decided an interesting and important search and seizure case today, holding that officers entering a dwelling to arrest someone must at least have probable cause to believe the person is there. The opinion ably explains matters:

Law enforcement officers need both an arrest warrant and a search warrant to apprehend a suspect at what they know to be a third party’s home. If the suspect resides at the address in question, however, officers need only an arrest warrant and a “reason to believe” that the individual is present at the time of their entry. This case sits between these two rules and calls on us to decide their critical point of inflection: how certain must officers be that a suspect resides at and is present at a particular address before forcing entry into a private dwelling?

* * *

We conclude that to satisfy the reasonable belief standard law enforcement required, but lacked, probable cause. The officers’ entry was therefore unconstitutional and, because the good-faith exception to the exclusionary rule is inapplicable here, the evidence seized from Vasquez-Algarin’s apartment should have been suppressed.

The court joined four other circuits in interpreting reasonable belief as at least functionally equal to probable cause, splitting sharply with the D.C. Circuit and less sharply with two others.

Joining Krause were Fuentes and Roth. Arguing counsel were Frederick Ulrich of the MDPA Federal Public Defender for the defendant and Daryl Bloom for the government.

New opinion — persistent police get valid consent to enter

United States v. Murray — criminal — affirmance — Barry

When police knocked on the door of a motel room, a woman inside said she was busy and to go away. A different officer knocked, and the woman again said she was busy. So the officer said he was a police officer and “asked her to open the door,” and he knocked on the window and showed his badge through the window. The woman then opened the door and let the police into the room, where they found evidence used to incriminate the defendant. The district court held that the officers’ entry into the motel room was lawful due to the woman’s voluntary, uncoerced consent. Today, noting the woman’s later testimony that she had been glad the police came and wanted to open the door, the Third Circuit affirmed.

Joining Barry were Fisher and Rendell. The case was decided without oral argument.

Third Circuit reversed in free-speech case

This morning the Supreme Court issued Heffernan v. City of Paterson, reversing by a 6-2 vote the Third Circuit, holding:

When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

Here, police officer Heffernan was fired after he was seen getting a political candidate’s yard sign. In reality he picked up the sign for his mother, but he was fired based on the mistaken view that he was supporting that candidate himself. In a decision I described at the time as “wacky” and a head-scratcher, the Third Circuit had affirmed summary judgment against Heffernan, without oral argument, on the theory that he was not actually exercising his First Amendment rights.

The Supreme Court remanded for further proceedings on whether the employers acted pursuant to a neutral policy.

Third Circuit to start using eVoucher in CJA cases

The Third Circuit website today announced:

The Court of Appeals will be going live on eVoucher on June 6, 2016.  All CJA attorneys are directed to review the attached notice regarding the deadline for submission of outstanding vouchers and the implementation process.

The notice is here. Some notable points:

In order to avoid delays in payment, all CJA appointed attorneys with outstanding
vouchers in appeals that are final or with vouchers eligible for interim payment must be
received in the Clerk’s Office in paper format on or before Wednesday, May 18, 2016.

* * *

Once the Court transitions to eVoucher on June 6, 2016, the Court will no longer
be able to process any vouchers submitted in paper format. All paper vouchers submitted
after May 18, 2016 will be returned to counsel without processing. Counsel will then
have to wait to resubmit the voucher until the Clerk’s Office can create the appointment
in eVoucher. Vouchers cannot be submitted electronically until after the Court goes live
on June 6th.

* * *

Any questions regarding this transition to eVoucher should be directed to
evoucher_helpdesk@ca3.uscourts.gov or 215-299-4966.

The notice unfortunately doesn’t mention this, but I would think that the court’s inability to accept vouchers between May 18 and June 6 will mean that it will excuse compliance with its normal rule that CJA vouchers must be submitted within 45 days of the end of the case for cases where the deadline falls in the three-week no-submission period.

I just submitted my first eVoucher bill last month, in a non-Third Circuit case, and I’m still reserving judgment about the new system. But, improvement or not, it’s coming soon.

New opinion — Third Circuit upholds NLRB rulings against challenge based on NLRB recess appointments

Advanced Disposal Svcs East v. NLRB — agency/labor — affirmance — Smith

The Supreme Court held in Noel Canning that the National Labor Relations Board lacked a quorum in 2012 and 2013 because the recess appointments of three of its members were invalid. The case decided today by the Third Circuit involved NLRB actions that were initially invalid but later were ratified by the then-properly-constituted board. The court held that the ratification sufficed to support the board’s actions, and on the merits held that the board’s ruling was supported by substantial evidence. On a preliminary issue — whether the employer forfeit its challenge to NLRB authority by failing to raise the issue before the board — the Third Circuit expressly deepened a circuit split, joining the D.C. Circuit against the Eighth Circuit. I doubt we’ve heard the last of this case.

Joining Smith was Hardiman; Sloviter also was on the panel when it heard argument but assumed inactive status before the opinion issued. Arguing counsel were Daniel Barker for the employer and Kellie Isbell for the NLRB.


New opinions — a rare criminal reversal and a bankruptcy reversal

US v. Lopez — criminal — reversal — Vanaskie

Criminal defendants don’t win too many Third Circuit appeals, especially by published opinion and most especially under plain-error review. But it happened today. The court vacated Victor Lopez’s conviction for being a felon in possession of a firearm, holding that the prosecution violated Doyle v. Ohio by impeaching Lopez with his post-Miranda silence and ordering a new trial despite trial counsel’s failure to object to the error. The court ruled that the error affected the outcome because the error impacted Lopez’s credibility and the case hinged on credibility.

In a footnote, the court lamented that the Doyle error was “particularly egregious” because such errors “unfortunately resurface[] too often, threatening to undermine the integrity of proceedings in our courts.” After reiterating that it remained troubled by the recurring violations, the court “commend[ed] Assistant United States Attorney Steven G. Sanders for his forthright acknowledgment of the Doyle error during oral argument,” noting, “He was a model of professionalism in apologizing for the error at trial and vowing to take steps to avoid having this type of error recur.” Audio of the oral argument is here.

For criminal defense counsel, three prejudice points bear noting:

  1. The whole record matters. In finding that the error affected the outcome, the court didn’t just look at the testimony, it also looked at how the prosecutor argued that testimony at closing and at the questions jurors asked during deliberations.
  2. The fact that the credibility contest was between a defendant and police officers did not prevent the court from finding a reasonable probability that the error affected the outcome. Nor did the fact that the dispute was over whether the cops framed the defendant. In other words, the court recognized a reasonable probability that, without the improper impeachment, the jury would have believed that the defendant was telling the truth that the cops framed him, and that two police officers were lying when they said they found the gun on him.
  3. The court rejected the government’s argument that the Doyle error did not make a difference because the jury also had valid reasons to disbelieve the defendant (he had prior felony convictions and gave a false name when arrested).

Joining Vanaskie were McKee and Jordan. Arguing counsel were Steven Sanders for the government and my former colleague Maria Pulzetti of the EDPA Federal Community Defender for Lopez.


In re: World Imports — bankruptcy — reversal — Jordan

The Third Circuit today reversed a district court ruling in a bankruptcy case, holding that contractual modifications to a creditor’s maritime liens were enforceable on goods in the creditor’s possession.

Joining Jordan were McKee and Vanaskie. Arguing counsel were Brendan Collins for the creditor and David Braverman for the debtor.

“Free Pa’s federal judicial nominees from Senate limbo”

The title of the post was the headline of an April 15 staff editorial on PennLive.com, criticizing Senate Republicans’ “absolute fetish of blocking President Barack Obama’s judicial appointments – an obstructionist posture that has burdened benches across the nation, particularly in Pennsylvania.” One of the obstructed nominations mentioned, of course, is that of Rebecca Ross Haywood to the Third Circuit.

From the editorial:

Reporter Rob Hotakainen writes that the Senate has approved just 17 judicial nominations since Republicans took control in 2015. That’s fewer than half the 40-plus circuit and district court nominees approved by the Democratic-controlled Senate during a similar period during George W. Bush’s presidency. In fact, last year saw the fewest judicial confirmations since 1960.

So much for Republican majority demonstrating it can govern.

The result is an overburdened federal judiciary for which there is little hope of assistance any time soon. That’s bad news for Pennsylvania, which has four judicial appointees awaiting votes – tied with Texas for the most in the nation.

Otherwise, Haywood’s nomination has been getting disappointingly little media attention recently, as the Garland nomination continues to use up all the judicial-nomination-coverage oxygen.

New opinion — Third Circuit decides a major preemption case

Sikkelee v. Precision Airmotive — civil — reversal — Krause

The Third Circuit today held that federal aviation-safety law does not preempt state-law products-liability claims, reversing on interlocutory review a district court grant of summary judgment. The appeal arose from a fatal Cessna plane crash in 2005; the pilot’s wife alleged that the crash was caused by faulty design of the plane’s carburetor.

The opinion features a thorough and thoughtful discussion of preemption, “a necessary but precarious component of our system of federalism.” (On this point the opinion cites a 1995 Kennedy concurrence, notable because Krause clerked for Kennedy in 1994-95.) The court rejected an expansive interpretation of prior landmark preemption case, Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. 1999), holding that Abdullah does not govern products-liability claims. It then proceeded to a close analysis and Congressional intent and relevant precedent.

Joining Krause were Chagares and Van Antwerpen. The high-powered arguing counsel were Teijinder Singh of Goldstein & Russell for the appellant and Kannon Shanmugam of Williams & Connolly for the appellees.


New opinion — Third Circuit upholds NFL concussion-suit settlement

In re: NFL Players Concussion Injury Litig. — class action — affirmance — Ambro

The Third Circuit today affirmed approval of a $1 billion settlement in a suit brought by former pro football players against the NFL for failure to inform of risks, and protect them from injuries, arising from concussions. The court rejected objections to both class certification and the settlement terms.

Early coverage by Ken Belson in New York Times here and Jeremy Roebuck on Philly.com here.

Joining Ambro were Hardiman and Nygaard. The superstar-studded cast of arguing counsel were Samuel Issacharoff and Paul Clement for appellees, and Howard Bashman, Deepak Gupta, Charles Becker, Cullin O’Brien, and Steven Molo for the appellant objectors. Audio of the almost-two-hour-long argument is here.

New opinion — Court affirms denial of habeas corpus relief

Dellavecchia v. Secretary PA DOC — habeas corpus — affirmance — Greenberg

After being arrested for murdering a man, James Dellavecchia smashed his head into the bars of his cell and was taken to the hospital. Dellavecchia was arraigned in his hospital bed and, while the arraigning police officer was there and without counsel, Dellavecchia made various admissions that the prosecution later used against him at trial. The state court found that admission of the defendant’s statements did not violate the Sixth Amendment because the statements were spontaneous and unsolicited. The district court denied Dellavecchia’s habeas petition, and today the Third Circuit affirmed, holding that the state-court ruling was not an unreasonable application of Supreme Court holdings and that, even if there were error, it would be harmless because the prosecution’s case was overwhelming.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument.


New opinion — two-judge panel affirms in civil appeal

Havens v. Mobex Network Svcs — civil / telecommunications — affirmance — Roth

The Third Circuit today affirmed district court rulings for the defense in a dispute over maritime telecommunications licenses. The court upheld dismissal of the plaintiffs’ claims under the Federal Communications Act and entry of judgment on their Sherman Act claim.

Joining Roth was Fuentes; Sloviter had been on the panel and heard oral argument but assumed inactive status before the opinion issued and so the opinion was filed by panel quorum. Arguing counsel were Stephen Hudspeth for the appellants and Robert Mauriello Jr. for the appellees.

Sheldon Adelson lost an appeal today in the Third Circuit [updated]

Casino magnate and major conservative political donor Sheldon Adelson lost a Third Circuit appeal today in an unpublished opinion. The opinion is here. Adelson (who, ironically, owns the Las Vegas Review-Journal) brought a defamation suit against a reporter for writing an article referring to him as “foul-mouthed.”  Huffington Post coverage of the suit here. The reporter’s defense, the opinion notes drily, is that the statement is “true in substance and fact.” The reporter sought discovery from a third-party of documents involving foul language by Adelson, the district court granted the discovery, and today the Third Circuit affirmed.

Gee whiz.

(Only the nerdiest among you will share my interest in noting that the opinion lists the attorneys in the caption, which is unusual for Third Circuit non-precedential opinions. UPDATE: a diligent reader reminded me that the court lists the attorneys in non-published opinions whenever oral argument was held.)

New opinion — Third Circuit finds serious misconduct by prosecution, but affirms due to overwhelming evidence

Gov’t of the V.I. v. Mills — criminal — affirmance — Krause

The Third Circuit today issued a major opinion on prosecutorial misconduct, holding that the prosecution committed severe and pervasive misconduct but that the defendant was not entitled to a new trial because the evidence against him was overwhelming, his defense was implausible, and the court gave effective curative instructions. The Third Circuit found three types of misconduct: urging jurors to convict Mills to protect themselves, urging jurors to convict based on bad conduct not relevant to the charged crimes, and displaying a photo of the victim’s corpse during closing argument to evoke sympathy.

Joining Krause were Fisher and Roth. (Notably, both Krause and Fisher were prosecutors before joining the court.) Arguing counsel were Su-Layne Walker for the government and Joseph DiRuzzo III for the defendant.

New opinion — Third Circuit recognizes Supreme Court overruling on settlement-offer mootness

Weitzner v. Sanofi Pasteur — civil / class action — affirmance — Scirica

Today the Third Circuit held that an unaccepted offer of judgment, filed prior to a plaintiff’s class certification motion, does not moot a plaintiff’s entire action. The court applied the recent Supreme Court ruling in Campbell-Ewald Co. v. Gomez, which the court recognized overruled its prior contrary holding in Weiss that an offer of complete relief generally moots the plaintiff’s claim. The court stated, “Beyond this, we decline to elaborate on the implications of Campbell-Ewald on our other holdings in Weiss.”

Joining Scirica were Shwartz and Roth. Arguing counsel were Carl Greco for the defendants and Todd Bank for the class plaintiffs.

Judge Sloviter, a “trailblazer” and “true legal giant,” assumes inactive status

Iconic Third Circuit Senior Judge Delores K. Sloviter assumed inactive status yesterday. Her decision was announced in a press release issued by Chief Judge McKee (link here from How Appealing). According to Chief Judge McKee’s statement, she “made the difficult decision due to a serious medical condition with her eyes.”

Chief Judge McKee’s statement contains a warm tribute to Judge Sloviter, describing her as “a trailblazer” and noting that she was the first woman to be a Third Circuit judge and the only woman to be the court’s Chief Judge. The statement concludes:

Judge Sloviter is a true legal giant. Her contribution to the Court and the legal profession cannot be diminished. I speak for the entire Court family in wishing Judge Sloviter good health, and in thanking her for all that she has done for the Third Circuit. We expect and hope that she will continue to play an active role in the life of the Court through participation on court committees and other duties.

Additional coverage by P.J. D’Annunzio in the Legal Intelligencer here, with admiring quotes from Shira Goodman, Chip Becker, and Bill Hangley. And Bruce Greenberg has this post on his New Jersey Appellate Law blog.

Chief Judge McKee’s statement does not mention what will happen to Judge Sloviter’s current clerks. (One of them is Tyson Herrold, per LinkedIn.) Here’s hoping they land on their feet.

Judge Sloviter’s final published opinion was last November, here. Her final decided case was yesterday, here. UPDATE: I spoke too soon. The court issued a per curiam opinion today (the day after she assumed inactive status) in which she is listed on the panel.

The Third Circuit will not be the same without her.


New opinion — partial reversal in an arbitration appeal

Hamilton Park v. 1199 SEIU — civil / arbitration — partial reversal — Ambro

The Third Circuit today affirmed in part and reversed in part in an appeal arising from an arbitration. The opening of the opinion aptly lays out the basics:

Hamilton Park Health Care Center filed a petition to vacate an arbitration award in a dispute with the 1199 SEIU United Healthcare Workers East union. The District Court denied the petition and confirmed the award. On appeal, Hamilton Park asserts that the Court erred by approving a multi-year arbitration award when the parties’ collective bargaining agreement (“CBA”) only contemplated a single-year award. Because the parties consented at arbitration to a multi-year award, we affirm this portion of the Court’s order.

Hamilton Park also argues that, even if a multi-year award is permissible, the Court should have severed a provision authorizing a new round of arbitration at a later date. We agree; thus we reverse and remand as to this portion of the order.

The conclusion clarifies the basis for reversal:

Our deference to an arbitrator’s award does not include the rubber stamping of a self-perpetuating arbitration provision that the parties did not agree to include. We therefore reverse the portion of the District Court’s order approving the inclusion of a new arbitration provision for disputes arising for the year starting June 30, 2015. We remand the case with instructions for the Court to void only the portion of the award providing for that arbitration. We affirm the Court’s order in all other respects.

(Citation and footnote omitted).

Joining Ambro were Jordan and Scirica. The case was decided without oral argument.

Today’s opinion was the court’s first published opinion since March 11.

Third Circuit hiring a clerk’s office court attorney

The Third Circuit posted a new job announcement this morning for a permanent court attorney position in the clerk’s office. I re-post job announcements like this one here partly as a service to the court, but mostly I do it because they give insight into how the court does its work.

The position reports to the chief deputy clerk and “provides legal guidance and direction for the procedural management of the court’s caseload.” Here are court attorney’s duties:

• Drafts Clerk’s procedural orders which facilitate case management.
• Conducts the initial screening of cases.
• Conducts legal research.
• Provides legal memoranda to the court in emergency matters.

The link to apply online is here. The closing date is April 22, so tarry not, my fellow appellate-procedure devotees!

A GVR and a capital-case cert denial for Third Circuit today

This morning’s U.S. Supreme Court order list included two Third Circuit cases of note.

First, the Court granted certiorari, vacated the judgment, and remanded in light of Johnson v. U.S. in Moon v. U.S., a criminal appeal the Third Circuit decided in a 2015 non-precedential opinion. Moon was represented by Philadelphia assistant federal defender Brett Sweitzer.

Second, the Court denied certiorari in Saranchak v. Wetzel, a capital habeas corpus appeal. The Third Circuit granted penalty-phase relief in 2015 while affirming the conviction, and Saranchak had sought cert presumably on the guilt-phase ruling.

The Court granted cert in one case to review a First Circuit case involving acquittals and Double Jeopardy (QP #1 on Scotusblog).

“Friends, neighbors hail Haywood nomination”

Today’s Uniontown (Pa.) Herald Standard has this adoring profile of Third Circuit nominee Rebecca Haywood by Pat Cloonan. The main sources are childhood friends, neighbors, and teachers, including a classmate who also became a lawyer:

“I think she has the intellect and temperament to be an outstanding appellate judge,” said Dan Sinclair, a partner in the Ecker[t] Seamans law firm who graduated with Haywood in 1986. “We had a lot of the same classes, and some activities. I hope the United States Senate considers her and confirms her quickly.”

* * *

Sinclair recalled Haywood being valedictorian of the Class of 1986.

“I can’t think of very many people I have met in this profession who are more qualified or more suited to be a federal appellate judge than she is,” Sinclair said. “Her work experience and her background make her very well suited for that.”

Neat story.

A glimmer of hope for litigant asking Supreme Court to review a Third Circuit ruling I called questionable

Last week the Supreme Court asked the Solicitor General to file a response to a certiorari petition challenging a controversial 2015 Third Circuit decision. Third Circuit, I love you, but I’m rooting for reversal.

Last August, the Third Circuit rejected Cosmo Fazio’s appeal challenging his guilty plea. I sounded off here, to wit:

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.

It bugged me so much that I went hunting online, and what I found bugged me some more:

Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.

Fazio’s motion for en banc rehearing (joined by an amicus) was denied, and he filed a Supreme Court petition for certiorari last month. Counsel of record remains Mark Goldstein. The government waived response, but last week the court requested one, due April 14. (The Supreme Court docket page is here.)

The call for response is encouraging, but statistically speaking a cert grant remains a longshot. A 2009 law review article reported that calls for response up the odds of granting cert from less than 1% to 8.6%.

Stay tuned.

UPDATE:  I just noticed that Third Circuit nominee Rebecca Ross Haywood was listed as one of the two lawyers representing the government in Fazio in the Third Circuit. (Michael Ivory was the AUSA who did the oral argument.) [UPDATE TO UPDATE: The opinion caption listed Haywood among counsel, but her name does not appear on the government’s brief.]

UPDATE 2: According to his linkedin page, the plea lawyer ended his practice in 2011 and now is a facilities engineer for a charity in Colorado. The PA Disciplinary Board website lists his status as suspended.

Third Circuit asked to decide scope of citizens’ right to film police [updated]

Today on Philly.com Jason Nark has a story entitled, “ACLU challenges ruling on right to film police,” which begins:

Civil rights lawyers on Monday appealed a federal court ruling in Philadelphia establishing that citizens do not necessarily have a constitutionally protected right to record police activity.

 The American Civil Liberties Union of Pennsylvania and local civil rights lawyers filed an appeal with the U.S. Court of Appeals for the Third Circuit on behalf of two Philadelphia residents, one arrested and the other detained, for taking photographs and video of police incidents in the city.

Last month, U.S. District Judge Mark A. Kearney ruled that unless a videographer announces the recording as an act of protest or a challenge to police, officers may stop the recording.

Prior news coverage of the case is here. Sharply critical commentary of the district court ruling in the Washington Post is here. Eugene Volokh criticized the ruling and predicted it will be reversed on appeal on Volokh Conspiracy here. The ACLU discusses the appeal here.

UPDATE: ACLU-PA staff attorney Molly Tack-Hooper yesterday posted this explanation of the case and the underlying issue on the ACLU blog Speaking Freely, entitled, “No, It’s Not Illegal to Record the Philadelphia Police! — Fields/Geraci Ruling Explained.”

Considering whether Haywood is qualified through the lens of an appeal she lost

Republican Senator Pat Toomey reportedly thinks Third Circuit nominee Rebecca Ross Haywood isn’t qualified. Yesterday I looked at whether Haywood is qualified by examining her legal experience. I concluded that her experience as an AUSA and a federal clerk compares favorably with the court’s recently appointed judges.

We can also approach the question of whether Haywood is circuit-judge material from a different angle. Being qualified isn’t just about experience, it’s also about ability.

As the chief of appeals for the WDPA U.S. Attorney’s office, Haywood has been involved in a lot of appeals. Earlier this week I linked to audio files for four of her oral arguments, featuring her argument in Wecht.

Today I want to take a closer look at another of Haywood’s appeals. I picked US v. Gregory Brown, 13-4442, for a few reasons. First, it’s pretty recent, briefed and argued in 2014. Second, it looks like Haywood handled the case personally, since there is no subordinate AUSA listed on the brief. Third, it resulted in oral argument and a published opinion. And, importantly, the government lost, so if Haywood’s work weren’t up to par this case would be a good bet to show that.

To assess the quality of Haywood’s work in Brown, I looked at the brief she filed in the appeal (from Pacer) and the oral argument.  (I also looked at Brown’s reply brief, the court’s opinion, and Haywood’s unsuccessful panel rehearing petition.) Here’s what struck me:

  • Overall, Haywood’s brief was outstanding: clear, clean, and on-target. Not a hint of the rhetorical fist-shaking that drains the credibility of so many appellate briefs. Thoroughly professional.
  • The brief wasn’t just competent, it was also confident and creative. In most briefs, the jurisdictional statement is just a dry litany, but she used it to mention on page one the powerful fact that the defendant had threatened to kill two federal judges. She departed from the typical formula in her issue statement, three pages long and full of facts and cites. Most related-case statements I see are lazy, but she put in the effort to find and list 23 other appeals the defendant had brought, again helping frame things to her advantage.
  • Her oral argument was terrific, too. (Here’s the link to the audio again; her argument starts at 16:25.) The panel (Ambro, Barry, Restani) was extremely engaged. Her answers are direct, respectful yet assertive, and cogent. Listen to the section from 22:24 to 24:10 (she’s responding to a long Ambro question that began at 21:30). That’s a model for how a thoroughly prepared advocate handles hard questions. It’s a graceful, powerhouse performance.
  • She was great, not perfect. The defendant’s reply brief said her brief ducked a significant issue. The typography in her brief wasn’t Butterick-caliber. And towards the end of her oral argument she was speaking a bit too quickly and seemed to speak over a judge.

Bottom line, I saw nothing in Haywood’s performance in Brown that would support Toomey’s charge that she is unqualified. All I see is a first-rate advocate with the makings of an outstanding judge.

A look at Third Circuit nominee Rebecca Haywood’s qualifications

Senator Pat Toomey reportedly has questioned Rebecca Haywood’s qualifications to be a Third Circuit judge, but a quick comparison of her background with the court’s recently confirmed judges shows that her qualifications compare favorably.

In the past 10 years, there have been 8 judges confirmed to the Third Circuit: Chagares, Jordan, Hardiman, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo.

Of those 8, there are 5 who had served as Assistant U.S. Attorneys (the times of service are approximate):

  • Chagares — 14 years as AUSA, with 5 years as chief of civil division
  • Jordan — 5 years as AUSA
  • Greenaway — 5 years as AUSA, with 2 as chief of narcotics
  • Shwartz — 14 years as AUSA, with 3 as chief of criminal division and 2 as executive AUSA
  • Krause — 5 years as AUSA

Haywood has been an AUSA for 17 years, with 6 years as appellate chief.

Of the same 8, there were 6 who had clerked for federal judges:

  • Chagares — circuit
  • Jordan — district
  • Greenaway — district
  • Vanaskie — district
  • Shwartz — district
  • Krause — circuit and USSC

Haywood clerked twice for WDPA Judge Bloch.

And, while I haven’t run the numbers on this, I’d bet the farm that Haywood has more experience arguing cases in the Third Circuit than any recent Third Circuit nominee. Earlier I linked here to a few of her more significant Third Circuit oral arguments.

Unqualified? Hard to square that with her record.

Haywood background round-up [updated]

Biographical information is beginning to emerge for Rebecca Ross Haywood, President Obama’s nominee to the Third Circuit.

First, here is the full text of the White House nomination announcement:

WASHINGTON, DC – Today, President Obama nominated Rebecca Ross Haywood to serve on the United States Court of Appeals for the Third Circuit.

“Throughout her career, Rebecca Ross Haywood has shown unwavering integrity and an outstanding commitment to public service,” said President Obama. “I am proud to nominate her to serve on the United States Court of Appeals.”

Rebecca Ross Haywood:  Nominee for the United States Court of Appeals for the Third Circuit

Rebecca Ross Haywood is an Assistant United States Attorney in the Western District of Pennsylvania, where she has served as Chief of the Appellate Division since 2010.  As part of the office’s Management Team, she regularly consults on and reviews filings for the United States Attorney’s Office for the Western District of Pennsylvania.  In addition, Haywood frequently practices before the United States Court of Appeals for the Third Circuit and confers with trial attorneys on cases before the United States District Court for the Western District of Pennsylvania.

Haywood was born in McKeesport, Pennsylvania and raised in the neighboring town of Elizabeth, Pennsylvania.  She received her A.B. cum laude in 1990 from Princeton University.  She then attended the University of Michigan Law School, where she served as an Associate Editor on the Michigan Law Review and obtained her J.D. magna cum laude in 1994.  After graduating from law school, Haywood clerked for the Honorable Alan N. Bloch of the United States District Court for the Western District of Pennsylvania from 1994 to 1996.  From 1996 to 1997, she worked in the Pittsburgh office of the law firm of Jones, Day, Reavis & Pogue (now Jones Day).  Haywood served as an Assistant United States Attorney for the Western District of Pennsylvania from 1997 to 2001, where she handled civil matters, including representing federal agencies in employment and medical malpractice cases.  From 2001 to 2003, she once again clerked for the Honorable Alan N. Bloch.  In 2003, Haywood returned to the Civil Division of the U.S. Attorney’s Office for the Western District of Pennsylvania, where she was promoted to Appellate Chief in 2010.

During her time in the United States Attorney’s Office, Haywood has been actively involved in workplace management and training, serving as a member of the executive and training committees since 2011, as well as serving as the coordinator for prevention of workplace harassment from 2004 to 2010.  In addition, she is actively involved in the community and regularly speaks to students and legal organizations about the law and her career.

Second, a Haywood wikipedia entry was born today.

Here is a link to the oral argument audio in one of the more significant appeals Haywood handled as an Assistant U.S. Attorney, United States v. Wecht. Haywood’s argument begins at 22:00. The panel was Smith, Fisher, and a spirited Van Antwerpen, and her opposing counsel was David Fine. The resulting opinion ruling in the government’s favor is here.

Three other notable Haywood oral arguments:

Strong coverage of the nomination controversy in this article entitled, “Toomey Irked by Obama’s Third Circuit Nominee,” by P.J. D’Annunzio in yesterday’s Legal Intelligencer.

Groups issuing statements in support of her nomination include Why Courts Matter Pennsylvania, here, and Alliance for Justice, here.

The best profile of Haywood so far is Brian Bowling’s article at triblive.com. A photo of Haywood accompanies the post, along with some good quotes (with hyperlinks added by me):

The nomination of Haywood, who is black, is an important step for diversifying the courts, said Tim Stevens, of the Pittsburgh Black Political Empowerment Project.

“There’s a dearth of people of color in the courts, either locally or nationally,” he said. “Her nomination is important not only as a person of color but as a person of integrity.”

Two former assistant U.S. attorneys who worked with Haywood and, as private attorneys, faced off against her in court, said she’ll make a good judge.

“Aside from possessing the most important quality a judge can have — which is good judgment — Rebecca is brilliant and thoughtful,” said Tina Miller, a criminal defense lawyer who has known Haywood for more than 20 years.

“She’ll make an excellent judge,” said Stephen Stalling[s], a criminal defense lawyer who worked with Haywood for four years. “She has first-rate appellate experience, an excellent legal mind and probably the perfect temperament to serve on the 3rd Circuit: She’s intellectually curious, fair-minded and smart as a whip.”

Stallings was AUSA co-counsel with Haywood in Wecht.

Bruce Greenberg has this informative post at his New Jersey Appellate Law blog.

The Daily Princetonian has this profile, featuring a quote from her favorite undergraduate professor.

I will continue to update this post as additional sources become available.

Politics, not qualifications, is why Haywood won’t be confirmed

Rebecca Ross Haywood is not going to be confirmed by this Senate. Not because she’s somehow unqualified, not because she “struggled” to answer an interview question from Senator Pat Toomey, and not because President Obama chose a “confrontational approach” to judicial nominations. Haywood won’t be confirmed because Toomey will use his blue-slip power to block her, as he would use that power to block any Obama Third Circuit nominee now. The rest is just a charade, an effort minimize the price Toomey pays on election day for blocking the court’s first African American woman, just as Haywood was surely chosen to maximize that price. Toomey knows it, Obama knows it, hopefully poor Haywood knows it too.

“Obama’s pick … draws Toomey’s ire”

Jonathan Tamari and Jeremy Roebuck are reporting at Philly.com that Republican Senator Pat Toomey is already attacking President Obama’s nomination of Rebecca Ross Haywood for the Third Circuit:

But Toomey questioned her qualifications, said the White House knows he does not support her, and said the administration had chosen a “confrontational approach” over a longstanding practice of cooperation when it comes to federal judges from Pennsylvania.

“Instead of blowing up a bipartisan working arrangement,” he added, “the president should take a step back, put an end to this political theater, withdraw a nomination that is not suitable for such an important lifetime position.”

* * *

Toomey said Haywood had “struggled to answer legal questions” about Obama’s executive actions shielding some illegal immigrants from deportation – moves that outraged conservatives.

Playing out as I predicted so far.

Rebecca Ross Haywood nominated for Third Circuit opening

Rebecca Ross Haywood, chief of appeals and Assistant US Attorney for the Western District of Pennsylvania, has just been nominated by President Obama to the Third Circuit. If confirmed, she will fill the seat vacated when Judge Rendell went senior and will be the third African American judge currently on the court.

Early coverage at philly.com here, statement by the Leadership Conference on Civil Rights and Human Rights here.

Former Third Circuit Chief Judge calls on Senate to act on Supreme Court opening

John Gibbons, former Chief Judge of the Third Circuit, signed a letter released today calling on Senate leaders to act on President Obama’s forthcoming Supreme Court nominee. Former D.C. Circuit Chief Judge Patricia Wald also signed the letter, which was featured in a story by Zoe Tillman in today’s National Law Journal.

The letter argues that there is no election-year exception to the Senate’s duty to consider judicial nominations, and “[t]o recognize such an exception would set a dangerous precedent.”

Gibbons was nominated to the Third Circuit by President Nixon and served from 1970 through 1990, when he retired to head the Gibbons law firm, where he continues to practice today. His seat on the court was filled by Samuel Alito.

New opinion — a petitioner win in an immigration appeal [updated]

Orozco-Velasquez v. Attorney General — immigration — remand — Roth

The Third Circuit issued a late-in the day opinion granting an immigration petition for review and remanding with instructions for the immigration court to consider the petitioner’s application for cancellation of removal. The appeal turned on interpretation of the Immigration and Nationality Act’s “stop-time” rule, and the court expressly disagreed with other circuits’ interpretation of the rule.

Joining Roth were McKee and Ambro. Arguing counsel were Amanda Johnson of Dechert for appointed amicus petitioner (the petitioner was pro se) and Robert Tennyson Jr. for the government. The opinion expressed appreciation to Stuart Steinberg and former Van Antwerpen clerk Ryan Moore of Dechert for undertaking the amicus curiae assignment pro bono, and noted that law student Johnson argued “adeptly.” It was issued a year and a week after the oral argument.

UPDATE: Amanda Johnson argued the case as third-year law student participating in Penn Law’s federal appellate litigation externship, supervised by Professor Louis Rulli as well as counsel at Dechert. Here is a Penn Law news release with background on the case.

New opinions — an extraordinary debt case and a jurisdictional dismissal

Goldenstein v. Repossessors Inc — civil — partial reversal — Krause

Oh, what a story. (The facts are taken from the opinion.)

A guy borrowed $1000 from a lender, offering his car as collateral. The interest rate on this loan was 250 percent. The lender wired the money into the guy’s account, and then the lender started withdrawing $208 each month. After two months the guy took the money out of the account because he didn’t realize it was the lender making those withdrawals. The next month, when the lender couldn’t withdraw the third payment, it promptly contracted to repossess the guy’s car. Then — the lender having already collected $415 in monthly installments and $50 as a transfer fee — the repossessor told the guy that to get his car back — this is just a few months after the guy took out the $1000 loan — he had to sign a release, pay a $250 repossession fee, and pay $2143 to satisfy the loan.

Which he did. Then he sued, under RICO, the FDCPA, and state law. Eye poppingly, the district court granted summary judgment, on all claims, against the guy.

Today, the Third Circuit affirmed as to one claim — upholding denial of the FDCPA claim because the defendants had a right to possess the car even if the underlying loan was illegally usurious — but reversed on everything else. The court emphatically rejected the district court’s view that RICO’s prohibition against collecting unlawful debt did not apply to seizing collateral. And the court reversed the summary judgment on the state law claims after offering this withering observation:

The District Court granted summary judgment against Goldenstein on his PFCEUA and UCC claims without addressing the substance of the PFCEUA claim, without even mentioning the UCC claim, and despite the fact that Appellees did not argue those claims in their motion for summary judgment.


Joining Krause were Greenaway and Greenberg. Arguing counsel were Robert Salvin for the guy and Neal Thakkar for the appellees.

S.B. v. KIndercare Learning — civil — jurisdictional dismissal — Sloviter

After a child was allegedly injured at a daycare center, her mother sued in state court. The daycare removed the case to federal court. The plaintiffs retained a new lawyer, who sought to voluntarily dismiss without prejudice because the child (age 4) was too young to explain her injury. The district court granted dismissal but ordered the plaintiffs to pay the daycare’s attorney fees and refile within 4 years (extendable for good cause). The plaintiffs appealed. and today the Third Circuit held that the voluntary dismissal without prejudice here was not an appealable final order. The court left open the possibility that a litigant could appeal the attorney fees once their amount had been set, and that a litigant could appeal the conditions in an appeal from a later dismissal with prejudice for failing to comply.

Joining Sloviter were Smith and Hardiman. The case was decided without argument.



Judge Barry the centrist, in 3 opinions

The trumped-up controversy about Judge Maryanne Trump Barry focuses on a single opinion, her 2000 panel opinion in Farmer, the New Jersey abortion-ban case. As I detailed here, that opinion doesn’t support the ideologues’ criticism.

But there’s a broader point that’s been lost so far, too: Judge Barry has been a federal judge since 1983. She’s written gazillions of opinions. The fact that her critics rest their case on one of them is telling.

So, I recently spent some time poring back over Judge Barry’s opinions. It was boring. Unanimous panel after unanimous panel, controversy nowhere to be seen.

Here’s a good example: her 2015 opinion in Montgomery County Recorder of Deeds v. Merscorp. It was a fight over mortgage-recording fees between county deed recorders and the electronic registry industry, a high-stakes case with a raft of amici. Judge Barry’s opinion decided the case in favor of the industry on narrow, statutory grounds, affirming the district court and joining several other circuits. She acknowledged the losers’ policy arguments but said the courts’ role was not to decide if a statute was good or bad. Her opinion was joined in full by Judge Chagares (a W. Bush nominee) and Judge Krause (an Obama nominee). The more Barry opinions you read, the more you find like this.

Of course, judges sometimes disagree. In 2013, Judge Barry sat on a panel with Judges Fuentes and Cowen to decide Galarza v. Szalczyk, a civil-rights appeal brought by the ACLU challenging an immigrant’s detention. The panel majority held that local law enforcement do not have to honor immigration detainers. Judge Barry dissented, and her opinion is gloriously Barry — vigorous writing, pragmatic reasoning, limited scope. Here’s the close:

In the face of all of this, the Majority, in a sweeping
Opinion, has decided this enormously important issue. And it
did not stop there. Rather, it went on to conclude that “[e]ven
if there were any doubt about whether immigration detainers
are requests and not mandatory orders,” to read § 287.7 to
mean that a federal detainer is a command to a law
enforcement agency to detain an individual would violate the
anti-commandeering principle of the Tenth Amendment.

Maybe it would, and maybe it wouldn’t, even
assuming, with no great confidence, that the Tenth
Amendment issue should have been reached. Galarza did,
indeed, raise the issue in the District Court. The County,
however, never offered a full-throated response on the merits,
or lack thereof, of that issue, arguing instead that the
constitutionality of § 287.7 should be litigated in another,
more appropriate, case. Not unimportantly, the District Court
did not in its lengthy Opinion even mention, much less
decide, anything to do with the Tenth Amendment. Very
importantly, the United States was not heard as to it.

All of this makes me very uncomfortable. Given the
posture of the case before the District Court, I’m not sure
how, if at all, the United States could have been brought in.

What I am sure of is that we have gone very far in this very
important case without any input from the United States, and
we should pull back now. For now, though, I’m not prepared
to say, on what has essentially been a one-sided presentation,
that “shall” really doesn’t mean “shall” but, instead, means
“please.” I respectfully dissent.

One last one. Just two years after Farmer, The Third Circuit decided an employment discrimination suit brought on behalf of a group of women, Lanning v. SEPTA, and Judge Barry wrote the panel majority opinion, joined by Judge Roth. The plaintiffs had alleged that Philadelphia’s transit authority discriminated against women by requiring that transit-police applicants meet an aerobic capacity test that equated to running a mile and a half in 12 minutes. The women were represented by top civil-rights lawyers and were joined by the Women’s Law Project and the Feminist Majority Foundation as amici.

Judge Barry, purported radical pro-abortion extremist, ruled against the women. She wrote:

While not all SEPTA arrests are aerobic contests, nor are they always effectuated to apprehend “serious” criminals, the District Court found that “[a]n inability to proficiently perform any … task[] would compromise the effectiveness of the SEPTA transit police.” (emphasis added). In essence, the Court concluded what, to us, is now evident: a SEPTA transit police officer must be ready and able to apprehend not just the numerous sedentary, petty criminals, but also the fleet-footed few who, from time to time, wreak serious harm on the people of Philadelphia.

(footnotes and cite omitted). And her majority opinion concluded:

One final note. While it is undisputed that SEPTA’s 1.5 mile run test has a disparate impact on women, it is also undisputed that, in addition to those women who could pass the test without training, nearly all the women who trained were able to pass after only a moderate amount of training. It is not, we think, unreasonable to expect that women — and men — who wish to become SEPTA transit officers, and are committed to dealing with issues of public safety on a day-to-day basis, would take this necessary step. Moreover, we do not consider it unreasonable for SEPTA to require applicants, who wish to train to meet the job requirements, to do so before applying in order to demonstrate their commitment to physical fitness. The poor physical condition of SEPTA officers prior to 1989 demonstrates that not every officer is willing to make that commitment once he or she is hired. In any event, the multi-agency training which SEPTA candidates receive does not provide sufficient physical fitness training to bring an unqualified candidate up to the physical standard requirements.

This is a raging feminist jurist? Then-Judge McKee didn’t think so. He dissented, at length and with vigor, writing:

Prior to today’s decision, it was established in this Circuit, as it remains established in others, that a job requirement that has a disparate impact based upon gender could only be upheld if the relationship between the discriminatory requirement was so closely related to the essential of a given job that it could be justified as a business necessity. Today, in upholding a discriminatory application process based only upon a colorable claim of business necessity, we retreat from that standard while purporting to apply it.

In the end, these 3 cases merely illustrate what is obvious to anyone with experience practicing in the Third Circuit: the cartoonish image of Judge Barry the hellbent crusader is a fiction. The only folks who actually believe she’s a radical extremist are the radical extremists.

The Washington Post delves into Barry-gate [updated]

Fred Barbash has a story this morning on WashingtonPost.com, entitled “Meet Donald’s Trump’s sister, the tough, respected federal judge Ted Cruz called a ‘radical pro-abortion extremist.'”


I’m featured — embarrassingly, as the lawyer “most notably” “stirred t[o] anger” by the Barry-bashing — and Barbash ends the story with a quote from CA3blog.

The article adds some telling details to the discussion: that Judge Barry was rated as a centrist in a study of circuit-judge ideology, that Seton Hall University publicly apologized for giving her an award, and that “antiabortion groups have been going after her for years about” the Farmer opinion.

Excellent story. Will it be the last word on this trumped-up controversy? Seems unlikely.

UPDATE: Rammesh Ponnuru of NationalReview.com responds to the Washington Post article, and to me, here.

New opinion — Third Circuit finds error and criticizes the prosecution, but affirms

U.S. v. Steiner — criminal — affirmance — Fuentes

The Third Circuit today held that (1) admission of a defendant’s arrest on an unrelated offense was error but the error was harmless, and (2) the district court did not erro when it refused to instruct the jury that, in order to convict the defendant of possessing various ammunition, it must be unanimous as to each type of ammunition.

With respect to the improper admission of the unrelated arrest, the court emphasized that the trial prosecutor (who is not identified in the opinion) “played a central role,” adding “we are deeply troubled by the prosecutor’s statement at trial and “admonish[ing] the government to take greater care in its representations to the trial court and not brandish Rule 404(b) so cavalierly.”

Joining Fuentes were Jordan and Vanaskie. Arguing counsel were Renee Pietropaolo for the defendant and Jane Dattilo for the government.

A sad case with a Third Circuit connection

Stu Bykofsky has a column on Philly.com this morning entitled, “Inmate deserves to have courts keep their promises.” The column features Marcus Perez, an inmate who pled guilty in state court “because of bad information he was given by a judge, who urged Perez to take a plea bargain.” The judge who dispensed the incorrect information?

Judge Theodore McKee, then of Common Pleas Court, now chief judge of the U.S. Court of Appeals for the Third Circuit, said that when he told Perez he would be eligible for parole, “I was dead wrong.”

McKee told him “life” didn’t mean “life” and, “You will not die in prison.”

But the law recently had changed to “life means life,” and McKee made a grievous error.

By the time Perez learned that the judge screwed up, the case had passed from McKee’s authority, which meant that he couldn’t correct his own mistake. Perez has filed many appeals, each pigheadedly opposed – first by D.A. Lynne Abraham, and now by Seth Williams.
Sad case.
Disclosure: Perez’s court-appointed counsel is Michael Wiseman, an accomplished Third Circuit advocate who was my supervisor when he was head of the Philadelphia federal defender’s capital habeas unit and I was an assistant federal defender.

Judge Krause named by Scotusblog as 1 of 5 federal-appellate candidates for Supreme Court

Back on February 16 I posted about whether any Third Circuit judges were plausible candidates to be nominated to fill Justice Scalia’s seat on the Supreme Court. I wrote:

Let’s start with their ages. Greenaway was born in 1957, Vanaskie in 1953, Shwartz in 1961, Krause in 1968, Restrepo in 1959. Advantage Krause.

How about circuit confirmation votes? Greenway: 84-0, Vanaskie: 77-20, Shwartz 64-34, Krause 93-0, and Restrepo 82-6. Advantage Greenaway and Krause.

Demographics? Greenaway is an African American man, Vanaskie is a white man, Shwartz and Krause are white women, and Restrepo is a Hispanic man. Disadvantage Vanaskie, after that it’s hard to say.

* * *

I’ve described Judge Krause here before as “a rising star” whose initial published work has been “Supreme-Court-shortlist caliber.” My Magic 8-Ball says she’s the Third Circuit judge likeliest to get the call from a Democratic president. But my hunch is that’s a better bet for the next opening than for this one.

Today, Tom Goldstein wrote a post on Scotusblog entitled, “Five potential nominees from the federal appellate bench.” He wrote:

It is easy to identify the candidates who (i) serve on a federal court of appeals; and (ii) received unanimous Republican support in the confirmation process.  By culling based on a few other criteria – such as academic background, age, and length of experience on the appellate bench – we identified this list of five candidates, in alphabetical order:

* * *

Hon. Cheryl Krause, who serves on the Third Circuit.  Previously, she was a federal prosecutor.  She was a law clerk to two Republican appointees.  She attended Stanford Law School.

Goldstein says he will publish profiles of Judge Krause and the other four in the coming days.

(My thanks to the intrepid reader who alerted me so quickly to the Scotusblog post.)

The effort to smear Judge Barry as a radical extremist is still alive, and still wrong

Third Circuit Judge Maryanne Trump Barry is a moderate-conservative Republican centrist. After a decade as a federal prosecutor, she was nominated to the district court by President Reagan and confirmed by voice vote by a Republican-controlled Senate. Chief Justice Rehnquist appointed her to chair a Judicial Conference committee. The New York Times reports that she was nominated to the Third Circuit by President Clinton thus:

In 1999, Mr. Clinton was having a hard time getting his appointments through the Senate, and he asked Senator Robert G. Torricelli of New Jersey to find a set of judges who could be confirmed. To balance out the Democratic appointments, Mr. Torricelli chose Ms. Barry.

Again she was confirmed, again by a Republican-controlled Senate, again by voice vote.

But recently Judge Barry has become a talking point in the Republican presidential campaign debate, and conservative partisans brand her a radical extremist. It is a preposterous claim.

Republican Presidential candidate Ted Cruz has been trying for a while now to score a point against fellow candidate Donald Trump by Judge Barry, who is Trump’s sister. I’ve discussed it here and here, and I was quoted about it on NJ.com here. Trump revived the controversy at Thursday’s Republican debate, noting that Cruz has been criticizing Barry and suggesting “maybe we should get a little bit of an apology from Ted.” (Trump mangled the facts, claiming that Barry had been criticized for “signing a certain bill” and asserting that Justice Samuel Alito “signed that bill.” In reality, Cruz criticized Barry for her opinion in the New Jersey abortion-case Planned Parenthood v. Farmer, and Alito concurred in the judgment.)

After the debate, prominent conservative commentators have rushed to defend join the attack on Judge Barry. First, Ramesh Ponnuro (who describes Cruz as “[a]n old friend of mine”) wrote on Nationalreview.com that “Judge Barry wrote an expansive opinion attacking and sneering at” New Jersey’s abortion-ban law, “and laying out an argument that would logically justify a constitutional right to infanticide.”

Then, former Akin Gump partner Paul Mirengoff wrote on Powerlineblog.com that Judge Barry’s “position on abortion” in the New Jersey opinion was “odious.” “Cruz is right about Trump’s sister,” he claimed: “The woman Trump holds out as a model jurist is obscenely pro-abortion.” (Other similar right-wing Barry-bashing here, here, and here. [Update: and here, by him.])

Here is the reality about Judge Barry’s opinion in Farmer:

  • Judge Barry’s opinion for the court was joined in full by Judge Leonard Garth, a Nixon appointee whom I’ve never before heard accused of being an obscenely pro-abortion radical extremist.
  • Then-Judge Alito concurred in the judgment, agreeing that Supreme Court precedent compelled the result Judge Barry reached.
  • New Jersey’s attorney general declined to defend the law. The district judge judge reached the same result the Third Circuit did. The Third Circuit did not grant rehearing en banc, and the Supreme Court did not grant certiorari.
  • Ponnuro accuses Judge Barry of writing an “expansive” opinion, but in fact her opinion was limited. The plaintiffs argued that the NJ law violated equal protection and did not serve a legitimate state interest, but the opinion declined to reach either question. The district court held that the law created an undue burden on women’s constitutional rights by offering no health exception and an inadequate life-of-the-mother exception; the opinion passed up the chance to endorse either of these points, too. The opinion even expressly refused to address whether a clearly drafted prohibition of intact-dilation-and-extraction abortion would be constitutional. (How Ponnuro squares this express reservation with his claim that Judge Barry’s opinion “would logically justify a constitutional right to infanticide,” I have no idea.)
  • Judge Barry’s opinion began by frankly acknowledging “deeply held convictions by men and women of good will, convictions which we recognize and respect.” It stated, “It is not for us to decide who is right and who is  wrong as a matter of conviction or philosophy.”  It acknowledged that “there are unquestionably numerous ethical, philosophical, and moral issues surrounding abortion.”
  • The opinion went into graphic detail describing how the fetus dies during various abortion procedures, repeatedly noting that during the procedure the fetus may still have a heartbeat. It said in passing, “whatever one may think of abortion in general and ‘partial birth abortion’ in particular.” It speculated that the purpose of the NJ law was “to dramatize to the public the ugly nature of abortions of all types.” By contrast, the most favorable thing the opinion says about abortions is that Supreme Court precedent establishes a constitutional right to have one. I don’t see a single pro-abortion or pro-choice sentence in the opinion.
  • It is impossible for me to tell from the opinion whether Judge Barry would vote for a late-term abortion ban if she were a legislator. To the extent the opinion offers any clues, I’d guess that Legislator Barry would vote in favor of such a ban if it were competently drafted.

Judge Barry’s Farmer opinion is aggressively limited. It treats pro-life policy views with respect but decides the appeal based on logic and precedent, not policy. The opinion is competent, professional, and utterly mainstream. If this opinion makes Judge Barry a radical extremist, then so is 98 percent of the federal judiciary.

One final point.

Back in 1998, when Judge Barry was still a district judge, she presided over Greenhut v. Hand, a case in which a pro-life volunteer at a pregnancy-services center sued a defendant who had threatened her. The pro-life volunteer sued under the Freedom of Access to Clinic Entrances Act, a law passed in response to growing violence against abortion providers. The opinion noted that this case was the first time that FACE was invoked to penalize threats against a pro-life volunteer. The defendant argued that FACE did not apply because the act protected only persons providing reproductive health services and the pro-life volunteer wasn’t.

Judge Barry emphatically rejected the defendant’s arguments and granted summary judgment in favor of the pro-life protester. The opinion has not one hint of disapproval of the plaintiff’s pro-life views, not a whisper of approval for the defendant’s pro-choice views.

Obscenely pro-abortion? Radical extremist? Nonsense.

Two new opinions, with a rare Third Circuit benchslap

Mammaro v. NJ Division of Child Protection — civil rights — reversal — Ambro

New Jersey child services took away a mother’s one-and-a-half-year-old child for “a few days” because the mother twice tested positive for marijuana and moved out of approved housing. After the mother got her infant back, she filed a civil rights suit against child services and the caseworkers involved. The district court dismissed the suit against child services but refused to dismiss a substantive due process claim against the caseworkers. The caseworkers appealed, and today the Third Circuit reversed, holding that the caseworkers were protected by qualified immunity. The court assumed a consensus of persuasive authority that temporary removal of a child could violate due process, but found no consensus that removing the infant was an “unconstitutional interference with the parent-child relationship” because no prior case so held.

Practitioners should take special note of a footnote in the opinion, inserted apparently at Chief Judge McKee’s request:

A hair follicle test [of the mother] in November 2011 showed a very small amount of marijuana and cocaine, but the amount found was too low to meet the standard for a positive test.

Although Chief Judge McKee joins this opinion in its entirety, he notes his concern with the misleading nature of the Division’s brief on this point. The brief stated that Mammaro “submitted to a hair follicle drug test, which was positive for cocaine and marijuana.” However, at oral argument, after counsel for Mammaro represented that she never tested positive for cocaine, the Division’s counsel (who was involved in drafting the brief) was given an opportunity to clarify whether the hair follicle test for cocaine was positive, as represented in the brief, or negative. Counsel first responded that the result was “inconclusive,” but then
conceded that Mammaro’s hair follicle analysis was “negative” for cocaine.

* * * given the thresholds employed by the lab and the Division’s own guidelines, Mammaro’s test results were negative.

Chief Judge McKee believes that it is (at best) unfortunate and (at most) disingenuous and intentionally misleading for the Division to have stated, without qualification or explanation, that Mammaro was using cocaine. The failure to explain or qualify such an assertion is particularly egregious here where the focus of our inquiry is the reasonableness of the challenged interference with Mammaro’s custody of her child, and the alleged bad faith of the Division. Moreover, the misstatement in the brief should not be minimized merely because the removal of Mammaro’s child preceded the disputed cocaine analysis. By its own statement, the Division provided the misleading lab results for “background information.” Since the information was, by the Division’s own admission, irrelevant to its decision to interfere with
Mammaro’s parental rights, Chief Judge McKee is concerned that it may have been offered in an attempt to “poison the [analytical] well.”

Not how any appellate attorney wants to be remembered in a published circuit opinion.

Joining Ambro were McKee and Hardiman. Arguing counsel were Michael Walters of the state attorney general for the child services defendants and Kenneth Rosellini for the mother.

Cunningham v. M&T Bank — civil — affirmance — Ambro

The Third Circuit upheld a district court’s ruling that a class-action lawsuit was barred by the statute of limitations and not subject to equitable tolling based on any fraudulent concealment.

Joining Ambro were McKee and Scirica. The case was decided without argument.

New opinion — partial dismissal in insurance-coverage appeal

Ramara Inc. v. Westfield Insurance — civil / insurance — dismissal in part — Greenberg

The Third Circuit held that a district court’s order that an insurer must defend a suit was immediately appealable, and applied Pennsylvania law to affirm the district court’s order.

Joining Greenberg were Fuentes and Chagares. The case was decided without argument.

NCAA en banc argument: only little surprises

I had the pleasure of attending this morning’s en banc oral argument in NCAA v. Governor of NJ. The ceremonial courtroom was packed, and even two of the judges who had recused were in the audience. Circuit advocacy (and circuit judging) is not often a big-crowds gig, so it was an entertaining spectacle.

Judge Ambro (presiding due to Chief Judge McKee’s recusal) opened with a heartfelt tribute to Justice Scalia, saying it was “so true” that he was “transformative” and describing him as “perhaps the greatest influential jurist of my generation.”

Here are a few things that surprised me:

  • Judge Barry missed participating by video feed due to technical difficulties, but at the last minute she was able to join in by audio;
  • Theodore Olson appeared to be reading his opening, word for word. Not just the opening sentence, but the whole first minute or two. (And later he declined to answer a judge’s direct question about what the recent troubles of daily-fantasy-sports betting meant for his position, saying he didn’t want to get into that.)
  • Paul Clement, who gave a virtuoso argument, leaned pretty heavily on legislative history. Heresy!

On a more substantive note, I was surprised that some of the court’s more conservative judges were the source of some of Olson’s toughest questions. I figured the court’s right was New Jersey’s best hope for getting towards the seven votes it needed to win, since a vote for New Jersey could be seen as a vote for state power and for business. But Judge Fisher was plainly dubious of Olson’s position, and Judges Hardiman and Jordan peppered him with tough questions, too.

But for all the little surprises, the bottom-line sense I got from today’s argument was not surprising. I came in doubting that New Jersey could find seven votes, and nothing that transpired during the argument reduced my doubt. We won’t know the result until the opinion(s) are issued, but Clement, the sports leagues, and the government have to feel pretty good about today.

Even more reason to question that Judge Barry is a radical extremist

Ted Cruz recently attacked Donald Trump by calling his sister, Third Circuit Judge Maryanne Trump Barry, a “radical pro-abortion extremist” for voting to strike down a New Jersey late-term abortion ban. (I discussed it here.) Cruz left out the fact that Nixon appointee Leonard Garth joined her opinion and W. Bush appointee Samuel Alito joined the result.

Now, David Eldridge further undermines the Barry-is-a-radical-extremist smear with this post at Insidesources.com, pointing out that Barry testified before the Senate Judiciary Committee in effusive support of Alito’s Supreme Court nomination:

Appearing on Capitol Hill before the Senate Judiciary Committee, Barry praised Samuel Alito, then a colleague on the United States Court of Appeals for the Third Circuit, as “a man of remarkable intellectual gifts.”

Alito, she told senators, “set a standard of excellence that was contagious, his commitment to doing the right thing, never playing fast and loose with the record, never taking a short cut, his emphasis on first-rate work, his fundamental decency.”

“You have heard the most glowing things said about Sam as a colleague on our court. I embrace every glowing statement,” she testified. “Let me just conclude with this … He is a man with impeccable legal credentials. He is a fair-minded man, a modest man, a humble man, and he reveres the rule of law.”

Maybe Barry supported Alito only because she figured he was a radical pro-abortion extremist, too?

Any Third Circuit short-listers for the Supreme Court?

The national media is filled with stories speculating about President Obama’s likeliest potential nominees for the Supreme Court vacancy created by Justice Scalia’s death. No Third Circuit judges have been mentioned in any of the stories I’ve seen. Does the Third Circuit have any plausible candidates? Here’s a quick look.

Obama has picked five Third Circuit judges: Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. (The three active Third Circuit judges appointed by Bill Clinton are all over 60, probably too old to get a serious look now.)

Let’s start with their ages. Greenaway was born in 1957, Vanaskie in 1953, Shwartz in 1961, Krause in 1968, Restrepo in 1959. Advantage Krause.

How about circuit confirmation votes? Greenway: 84-0, Vanaskie: 77-20, Shwartz 64-34, Krause 93-0, and Restrepo 82-6. Advantage Greenaway and Krause.

Demographics? Greenaway is an African American man, Vanaskie is a white man, Shwartz and Krause are white women, and Restrepo is a Hispanic man. Disadvantage Vanaskie, after that it’s hard to say.

Ability? Look, I practice in this court, so I’m not saying anything stupid here. All five are widely respected, and whether the administration sees any or all as Supreme Court-caliber legal minds is anyone’s guess. And ideology matters but no one knows how yet, so I’ll punt there, too.

I’ve described Judge Krause here before as “a rising star” whose initial published work has been “Supreme-Court-shortlist caliber.” My Magic 8-Ball says she’s the Third Circuit judge likeliest to get the call from a Democratic president. But my hunch is that’s a better bet for the next opening than for this one.

Obama moving ahead with circuit nominations — a Third Circuit nominee on the horizon?

Last month, I predicted:

My guess, not based on any insider information, is that the cause of the nomination delay is that Toomey is dragging out nomination negotiations with Obama as long as he possibly can. At some point, Obama would give up hope and submit a doomed nomination, but until then Toomey may have little to gain from signing off of any nominee.

President Obama still hasn’t named a nominee for the Rendell seat, but new reporting by Charlie Savage in yesterday’s New York Times suggests that the dynamic I described has begun to play out for other circuit openings:

At the time, there were eight vacancies on the appeals courts, but Mr. Obama had submitted the name of only one nominee: Luis Felipe Restrepo, a District Court judge in Philadelphia. He had Republican backing, and the Senate confirmed him last month.

Mr. Obama submitted no other names, according to administration officials, because the vacancies were in states that had at least one Republican senator, and those senators had refused to preapprove any nominee.

Traditionally, preapproval is part of the nomination process. The Senate Judiciary Committee generally does not schedule a hearing for a nominee without the consent of both senators from the state in which the seat is based, regardless of party.

Starting last month, Mr. Obama quietly broke with that tradition. He has now submitted nominees to fill four of those longstanding vacancies, even though none had preapproval from Republican senators. In an interview last week, Neil Eggleston, Mr. Obama’s White House counsel, said the president had moved forward because he hoped Republican senators would permit at least some to go through.

“The calendar was running out, and it was time to get moving,” Mr. Eggleston said. “At some point the process just has to get started.”

The article paints a mixed picture on Obama’s success filling circuit openings:

If he makes no more appointments to the regional appeals courts, Mr. Obama will leave at least 12 vacancies to his successor, counting seats that recently came open or are expected to by the end of the year. By that measure, Mr. Obama’s appeals court record would be about the same as Mr. Bush’s and better than that of Mr. Clinton — who also had trouble with a Republican Senate and left more than two dozen seats open.

But by other measures, Mr. Obama is on track to be a historical anomaly. He has appointed just 48 judges to the regional appeals courts so far, while Mr. Bush and Mr. Clinton each appointed more than 60.

The gap between Mr. Obama’s numbers and his recent predecessors’ occurred in the final two years of their presidencies. Mr. Obama appears likely to appoint the fewest such judges during that period of any president since Congress created the courts of appeal in 1891, with one exception: President Grover Cleveland, who named none in the two years before he left office in 1897.

But Cleveland had no vacancies to fill.

Judge Barry is back in the campaign headlines

Donald Trump put his sister, Third Circuit Judge Maryanne Trump Barry, squarely in the national media spotlight last year when he told interviewers she’d be a phenomenal Supreme Court justice.

Now that quote has Judge Barry back in the headlines, but this time it’s neither as positive nor as honest. Brent Johnson at NJ.com (among others) reports that fellow Republican candidate Ted Cruz today said:

Now, it’s good to stand with your sister. But Donald’s sister was a Bill Clinton-appointed federal appellate judge who is a radical pro-abortion extremist,” said Cruz, a Princeton University graduate. “Indeed, she wrote an opinion striking down restrictions on partial birth abortion, saying that restricting partial birth abortion was irrational. Even among liberal judges, that position is extreme, and Donald said, his extreme, abortion-supporting sister would make a terrific Supreme Court justice.

Judge Barry a radical extremist? Cruz isn’t the first Republican to float that one, but it’s still pure applesauce.

The case Cruz is bashing Barry for is Planned Parenthood of Central NJ v. Farmer, in which Judge Barry wrote the opinion striking down New Jersey’s late-term abortion ban.

Just one question. If Barry’s ruling striking down the New Jersey law was extreme even among liberal judges, what does Cruz make of the fact that the Third Circuit judge who concurred in the judgment in that case, opining that Supreme Court precedent “compels” the result Barry reached, was a fellow named Alito?


A few thoughts on Wednesday’s two en banc arguments

The Third Circuit will be hearing en banc oral argument in two cases on Wednesday: NCAA v. Governor (the sports betting case pitting Paul Clement against Ted Olson), and Chavez v. Dole Food (a civil-jurisdiction issue arising in the context of a suit by plantation workers alleging knowing exposure to toxic pesticides).

A couple interesting facts:

  • The first argument is at 9:30 in the Maris courtroom on the 19th floor, but the second argument at 11 a.m. is in the ceremonial courtroom on the 1st floor. Why the big move between arguments? Beats me.
  • Recently confirmed Judge Restrepo will sit for both cases, as expected.
  • Both cases had panel dissents by Judge Fuentes. Tangle with the pride of Toms River at your peril!

Anyway, the sports-betting case in particular is getting a lot more media attention than the typical Third Circuit appeal. I was even interviewed today by a reporter for ESPN, certainly a first for me. [Update: here’s the ESPN story quoting me.]

One of the questions I was asked today was how often en banc rehearing results in a different outcome from the original panel ruling. (Of course not all Third Circuit en banc cases involve any prior panel ruling, as I’ve discussed here. But the last six CA3 en banc grants have.)

Since Chief Judge McKee became chief, the Third Circuit has decided eight en banc cases in which a panel had issued an opinion. (There was a panel opinion in all four pending en banc cases, too.) Of those eight, the en banc opinion came out the same way as the panel opinion twice (25%); the en banc court effectively reversed the prior panel six times (75%). So that’s a small sample size, but it’s some evidence for the not-surprising conclusion that en banc rehearing en banc is bad news for the panel winner.

NCAA is a case where the panel dissenter was an active judge (Fuentes) and the panel majority judges (Rendell, Barry) are both now senior. (And in Chavez the panel dissenter was active (Fuentes) and the panel author (Nygaard) was senior.) That made me wonder whether active judges fare better in Third Circuit en banc cases. Is it common for active-judge dissenters to become en banc authors and senior-judge panel authors to become en banc dissenters?

Short answer: not really. Of the eight prior-panel cases, only one (Singer Management) fit that pattern, and in fact there were three (Lewis, Katzin, and Flores-Mejia) where the opposite happened. So active-vs-senior hasn’t mattered much in recent Third Circuit en banc case outcomes.

I’m looking forward to Wednesday’s arguments. If my schedule lets me attend in person, I hope to meet some readers and fellow Third Circuit lawyers.

New opinion — illegal to fire employee who complained about executive’s giant salary

MCPc v. NLRB — labor — vacate in part and remand — Krause

A company employee named Galanter was having lunch with a few co-workers, and they discussed how shorthanded and busy they were. Galanter commented that the company could have hired several workers with the $400,000 a year it was paying a new executive. Galanter was canned 8 days later; the company alleged that Galanter lied when confronted about the disclosure. NLRB counsel issued a complaint alleging that the company illegally fired Galanter for complaining about working conditions. The NLRB ruled for the employee and the company appealed.

Today, the Third Circuit reversed in part. It ruled that the employee’s lunchtime disclosure was protected activity as concerted conduct, but remanded for reconsideration of whether that protected activity was the reason for the firing. The opinion is a tour de force.

Joining Krause were Fuentes and Fisher. Arguing counsel were Dean Falavolito of Margolis Edelstein for the employer and Gregory Lauro for the NLRB.

“Obama’s New Appellate Court Nominees Should Be Blocked”

Still no nominee for Judge Rendell’s seat, but in the past week President Obama has named four circuit court nominees (two 7th Circuit, one 8th, and one 11th).

Conservative commentators are calling for Republicans in the Senate to block any federal appellate nominations until the next presidency. The title of this post is from Paul Mirengoff’s post at the influential conservative legal blog PowerLine, in which he begins:

In his final year in office, President Obama remains in a position to continue his project of transforming America. He can do so through Executive Orders, for example.

Republicans, though, are in a position to close the book on one front — the transformation of the federal judiciary. In November 2014, the GOP took control of the Senate. Consequently, no federal judge can be confirmed without Republican complicity. Indeed, as a practical matter, no federal judge can be confirmed unless Senate Judiciary Committee Chairman Charles Grassley allows it.

Until now, unfortunately, Grassley’s inclination has been to pat himself on back for confirming liberal nominees to important courts. I wrote about this here, in connection with the confirmation of Luis Felipe Restrepo, an aggressive left-winger, to the U.S. Court of Appeals for the Third Circuit.

It’s time for Grassley to stop surrendering.

Mirengoff closes by urging his readers to call Senator Grassley’s office to urge him to block Obama’s new appellate nominees.

Mirengoff links to a post by Ed Whelan at National Review which says, “If Senate Republicans are not to indulge in a game of unilateral surrender, these nominations ought to be dead on arrival.” Whelan argues that Democrats only confirmed two appellate nominees in 2008 and both were the product of bipartisan compromise, but “there is no evidence that suggests that Obama or Senate Democrats negotiated in advance with Senate Republicans over any of the recent nominees.” (He’s not talking about Restrepo, whose nomination clearly was negotiated with Republicans.)

I posted earlier that I’m skeptical that any nominee for Judge Rendell’s seat will be confirmed in 2016, and commentary like this does nothing to diminish my skepticism.

Recent Third Circuit Clerk: “Nudging Courts to Issue Decisions Can Pay Off”

You may recall the Third Circuit recent case where top appellate lawyer Roy Englert wrote to the Third Circuit urging them to issue a ruling a pending case. I wrote about the letter here (“sending the court a post-argument hurry-up letter strikes me as a risky move”) and the opinion here.

Albert Lichy has just written this piece in Daily Business Review, headlined, “Nudging Courts to Issue Decisions Can Pay Off.” Lichy was a 2014-15 clerk for Judge Ambro, so his insight is worth paying attention to.

Lichy writes that “the blink response” is that a lawyer can’t tell a judge to pick up the pace, but that the recent case shows how they can:

Is there a lesson to learn? I think so. The first is not to be afraid to nudge a court to action. If it’s been months since your case was argued and the court’s delay is causing serious damage to your client’s business, make the court aware. Or if a substantial amount of time has passed since oral argument and your appeal involved a straightforward issue, send a subtle reminder to the court—cases do fall through the cracks. (Just last August the Seventh Circuit apologized to the parties in one case on remand from the U.S. Supreme Court for putting their papers “in the wrong stack and forgetting” about them.)

If all else fails, take a page from the Taj’s playbook and get a popular blog to discuss your case. It’s no secret judges and law clerks use blogs as a news source. As in any context, however, a little tact goes a long way.

Certainly worth a read.

New opinion — divided Third Circuit panel upholds black lung statute-of-limitations ruling

Eighty Four Mining v. Director, Office of Workers’ Compensation Progs. — agency — affirmance — Vanaskie

After a board of the Labor Department awarded black lung benefits to a coal miner, the mining company argued that miner’s claim was untimely because a state board’s denial of state benefits should not restart the federal clock. The Third Circuit today disagreed with the company, denied the petition for review, and affirmed.

Joining Vanaskie was Rendell; Nygaard dissented. Arguing counsel were Norman Coliane of Thompson Calkins for the mining company, Heath Long of Pawlowski Bilonick for the miner, and Helen Cox for the government.

“Regardless of whether removing the President, ordering a census, and reapportioning Congressional districts are within our jurisdiction, Petitioner has not shown a clear and indisputable right to such drastic relief.”

The sentence that forms the headline of this post is from yesterday’s non-precedential Third Circuit opinion in In re: Natural Born Citizen Party National Committee. Normally I don’t post about unpublished opinions, but it’s Friday and I’m making an exception.

The court rejected a “difficult to understand” mandamus petition from a fringe political party (website highlight: “Become a Pre-1933 USA Citizen agent of the Public US Citizen Debtor Trust Transmitting Utility ‘Non-taxpayer’ for a fee of $1500”) and one of its two declared candidates for U.S. president (there are 1,544 registered presidential candidates this year, including Porcupines R. Spikey, Jr.). The mandamus petition evidently sought a stay of the 2016 election, appointment of special masters to conduct a census, and reapportionment of Congressional districts.

The court warned said candidate — re-warned, actually, since this wasn’t the first such mandamus petition he filed — that “frivolous and vexatious litigation may lead to sanctions.”

New opinions — qui tam and Sarbanes-Oxley

United States ex rel. Moore & Co. v. Majestic Blue Fisheries — qui tam — reversal — Rendell

The False Claims Act enables someone to sue someone else for defrauding the government — FCA suits are commonly called qui tam suits. (For example, there’s a big qui tam suit against disgraced cyclist Lance Armstrong related to his doping while sponsored by the US Postal Service.) This case involves a law firm that brought a qui tam suit alleging that foreign nationals fraudulently obtained fishing licenses reserved for citizens. The district court granted summary judgment for the defendants, but today the Third Circuit reversed. The main issue was whether the law firm’s suit survived the FCA’s public disclosure bar, and the court held that it did because it alleged information that was independent of and materially added to publicly disclosed information about the alleged fraud.

Joining Rendell were Vanaskie and Nygaard. Arguing counsel were Clay Naughton for the law firm and Robert Salcido of Akin Gump for the appellees.


Wiest v. Tyco Electronics Corp. — civil — affirmance — Greenberg

The Third Circuit today affirmed a district court’s ruling granting summary judgment against a former employee in an action for retaliation brought under the Sarbanes-Oxley Act.

Joining Greenberg were Fuentes and Chagares. The case was decided without oral argument.

The Third Circuit library is hiring an archivist

The Third Circuit announced this morning that it is hiring an archivist to organize the court’s important collection of historical materials. According to the job announcement, the new archivist’s “primary responsibilities include processing archival collections and digitizing historical court photographs.” It will be a two-year, half-time position.

This is wonderful news. Ever since the Third Circuit Historical Society lapsed into inactivity, there’s been a real need for someone to preserve and organize the circuit’s trove to make it accessible to scholars and the public. This new position will address that need; hopefully this will help jump-start the historical society back to life, too.

New opinion — Third Circuit lacks mandamus jurisdiction in patent cases

In re: Dr. Lakshmi Arunachalam — patent / mandamus — dismissal — per curiam

The Federal Circuit has exclusive jurisdiction over appeals in patent infringement actions. Today, the Third Circuit held that the Federal Circuit also has exclusive jurisdiction over mandamus petitions arising from such actions. Accordingly, the court dismissed for lack of jurisdiction the mandamus petition of a pro se litigant who claimed that the district court should have recused due to a financial interest in the case, and the court directed the clerk to transfer it to the Federal Circuit.

The panel was Fisher, Jordan, and Vanaskie. The case was decided without argument.

Guess which circuit holds the fewest oral arguments. (Hint: it’s the same one that issues the fewest published opinions.)

In the 12 months before September 30, 2014, the Third Circuit decided 2,402 cases. It heard oral argument in 238 of them, or 9.9% of its cases. The other 90.1% it decided without oral argument.

So what does that mean?

Well, the Third Circuit heard the fewest oral arguments in 2014 of any circuit. (The circuit-comparison stats all exclude the Federal Circuit.) The D.C. Circuit, which decided about a fifth as many cases, held more oral arguments. The Eighth Circuit, which decided a similar-but-smaller number of cases versus the Third Circuit, held 169 more oral arguments, or over 40% more. Even the Fourth Circuit, the only circuit that held oral argument in a (barely) lower percentage of its cases, held over 100 more arguments. When it comes to number of cases decided on the merits, the Third Circuit ranks 8th out of 12 circuits, middle-of-the-pack. Overall, the Third Circuit granted oral argument half as often as its sister circuits.

What about 2013? Same picture, even a little more extreme. In the year ending in 2013, the Third Circuit decided 2,715 cases and heard oral argument in 225, or 8.3%. Again, fewer oral arguments than any other circuit, and this time the Third Circuit had the lowest argument rate of any circuit.

[For 2015, the AOC hasn’t done the math yet. The raw numbers they’ve released for the 12 months before June 30, 2015 — the most recent data available — show the Third Circuit still holding the fewest oral arguments of any circuit, with an argument rate of 10.7%.]

Whoa, right? But there’s more.

Let’s look at how the Third Circuit’s argument numbers have changed over time. This graph shows the number of oral arguments the court has heard each of the past 17 years:


And here is the percentage of the court’s cases in which it heard argument over the same period:


That second graph shows that the plunge in oral arguments isn’t caused by a drop in the total number of cases. (To the contrary, the court is deciding on the merits 30% more cases per year compared to the late 90s.)

So it’s clear what we’re looking at isn’t any statistical blip: this is a robust trend, a historically significant transformation of the functioning of the court. The Third Circuit hears half as many oral arguments as it did a decade and half ago. A Third Circuit litigant around 2000 was three times more likely to get oral argument than she is today.


Now, I’m not the first one to notice this trend. Howard Bashman wrote this column in the Legal Intelligencer — after a year (2011) when the court heard 82 more arguments than it did in 2014 — arguing that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.” He concluded:

It may require at least a bit more work from the Third Circuit’s judges to slightly relax their current extreme reluctance to grant oral argument, but I cannot help but think that the extra work would yield great benefits in the form of stronger rulings and more satisfied litigants who will know that, win or lose, their arguments have been heard.

As a CA3 practitioner myself, there have been a few times I’ve been disappointed when the Third Circuit decided a case of mine without argument, cases where I believed I had raised substantial appellate issues. But, since I started my practice in 2010, the Third Circuit has heard oral argument in 30% of my cases. So I can’t complain, I’ve actually been fortunate.

But there’s still more to the story.

I’ve blogged here before about how the circuit’s rates for published opinions have dropped and are the lowest in the country. So, how do recent oral argument rates and publication rates compare? Take a look:



Both curves are down from 2009, cratered in 2013, and rebounded a bit in 2014.

Curiously, the circuit’s reversal-rate curve is similar, too:


Coincidence? Or are the similar-looking argument and publication graphs related?

Back in 2011, former Third Circuit Judge Timothy Lewis wrote (the emphasis is mine):

There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court’s business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate.

It’s natural to wonder if the plunging rates for argument and publication are related to the unconscionable delays in filling the seats vacated by Judges Sloviter and Scirica in 2013 — over a year before Judge Krause was commissioned, over 2.5 years before Judge Restrepo was. The court faces still a similar delay now, seven months and counting since Judge Rendell went senior, still waiting for a nominee.

As I noted above, the court is deciding 30% more merits cases now than it did in the late 90s — about 750 more per year — yet it hasn’t gotten a single new seat since 1990. When you take a busy court, jack up its caseload by 30%, add zero new judges, and drag your heels filling openings — well, at some point, as Judge Lewis said, there are consequences.

My hypothesis is that we’re looking at two consequences: fewer oral arguments and fewer published opinions. Now, these trends didn’t just appear in 2012 and they’re not limited to the Third Circuit. They could well be unrelated to caseloads and to each other. And the Third Circuit isn’t the only circuit struggling with vacancies. So I haven’t proven that hypothesis here.

But, if I am right, then the root of the problem here isn’t the court: it’s Congress.


[Notes: I’m grateful to top CA3 advocate Brett Sweitzer, among others, for raising my awareness of the oral argument drop at a recent forum of the Third Circuit Bar Association. The oral-argument data cited in this post are from AOC table B-10. The decided-cases data and the 6/30/2015 raw data come from B-1, reversal data come from B-5, and opinion-publishing data come from B-12.]

Restrepo’s first argument next week

Next Friday, brand-new Third Circuit Judge L. Felipe Restrepo will sit for the first time as a member of the court. He will sit on a panel with Judges Vanaskie and Shwartz for 3 arguments. This being the Third Circuit, it seems fitting that the first argument case on the docket that morning will be an asbestos-litigation appeal.

The court has a total of four panels sitting next week, and there’s not a single senior or visiting judge in the bunch.

New opinion — a legal error in arbitration is insufficient to upset its result

Whitehead v. Pullman Group — civil / arbitration — affirmance — Fuentes

How’s this for a lucid opening paragraph?

Singer-songwriters John Whitehead and Gene McFadden were “an integral part of the Philadelphia music
scene in the 1970s.” In 2002, appellant David Pullman
approached Whitehead and McFadden about purchasing their
song catalogue. The parties signed a contract but never
finalized the sale. Whitehead and McFadden passed away in
2004 and 2006, respectively, and Pullman became embroiled
in a series of disputes with their estates over ownership of the
song catalogue. The parties eventually agreed to arbitration.
Pullman, unhappy with the arbitral panel’s ruling, moved in
the District Court to vacate the arbitration award on the
ground that the panel had committed legal errors that made it
impossible for him to present a winning case. The District
Court denied Pullman’s motions, and Pullman now appeals.
Even if we were to agree with Pullman that the arbitrators
misapplied the law—and we do not—legal error alone is not a
sufficient basis to vacate the results of an arbitration.
Accordingly, we will affirm.

Joining Fuentes were Chagares and Greenberg. The case was decided without argument.

UPDATE: Nick Vadala of philly.com has the case backstory here.

Any hope for filling Third Circuit’s empty seat in 2016? I’m skeptical.

With Judge Restrepo finally on the Third Circuit, attention has turned to the Third Circuit’s other empty seat, the one created when Judge Rendell took senior status in July of last year. Even though Rendell announced her decision a year ago now, President Obama still has not nominated a replacement.

P.J. D’Annunzio had this article earlier this month in the Legal Intelligencer, headlined “Pa. US Courts Still Hampered by Vacancies,” reporting that the Philadelphia Bar Association plans to write to Senators Toomey and Casey “about the urgency of filling Rendell’s seat.” Recent letters to the editor, including this one by Glenn Sugameli of Judging the Environment and this one by Christine Stone of Why Courts Matter, have sounded the same note.

My guess, not based on any insider information, is that the cause of the nomination delay is that Toomey is dragging out nomination negotiations with Obama as long as he possibly can. At some point, Obama would give up hope and submit a doomed nomination, but until then Toomey may have little to gain from signing off of any nominee. Toomey took a political beating over the Restrepo nomination delay and I bet he prefers having the delay look like Obama’s fault instead of his.

While I certainly hope the Rendell seat is filled before Obama leaves office, I’ll be amazed if it is. Conservative activists are pushing hard to shut down confirmations already. Heck, they even wanted to block Restrepo. Last month I posted this informed commentator’s prediction that Restrepo will be the last Obama circuit judge confirmed. And Republicans will get a measure of credit for a deal to fill 4 other judicial spots by the end of February. I can’t persuade myself that Toomey will decide it’s good re-election-year politics to support any nominee for the Rendell seat.

One of the main talking points the liberal activists are using is that, back in 2008, Bush nominated Steven Agee for the Fourth Circuit in March and the Senate confirmed him in May. The Senate was Dem-controlled and one of Agee’s home-state senators was a Dem (and thus able to block the nomination). But I doubt the Republican Senate leadership today will find the Agee confirmation compelling precedent. There were 5 (!) openings on the Fourth Circuit at the time, and none of the other 4 Bush nominees made it through. If that’s the best example the Dems have, well, good luck.

I hope I’m wrong, but I predict that the too-long wait to get the Third Circuit to full strength will drag on at least another year.

New opinion — Conflict panel affirms in bankruptcy case

In re: Wettach — bankruptcy — affirmance — Sentelle

A Third Circuit panel of non-Third Circuit judges today affirmed a district court’s rulings in a bankruptcy case. The Third Circuit’s judges apparently all recused due to a peripheral financial interest in the case of one of them.  I previously posted about the case here and here. The appellant’s brief raised 10 issues, several related to constructive fraudulent transfer, but the court rejected them all.

Suppose, purely hypothetically, that the losing party believed that the panel opinion here contradicted prior CA3 precedent. When a conflict panel decides an appeal, en banc review is impossible, right? That’s an odd situation, but not as odd as constituting a conflict en banc panel I suppose.

Joining Sentellle (DC Cir) were Benton (CA8) and Gilman (CA6). Arguing counsel were James Cooney of Robert Lampl & Associates for the appellants and Neil Levin for the trustee.

Should judges recuse when their fellow judge has “a piece of the action?” — PA judges may be learning, but CA3 judges already knew

The Third Circuit issued a short little unpublished opinion in a bankruptcy appeal last week. The most interesting thing about it was that the panel was three judges from other circuits; I wrote about the case before oral argument, here. After that post, a couple intrepid readers helped me figure out that the apparent reason all the Third Circuit judges recused was that one of them had a peripheral financial stake in the outcome.

If the wisdom of the Third Circuit’s court-wide recusal were not clear before, it sure is clear now.

Today’s Philadelphia Inquirer features this story by Jessica Parks, about the controversy that’s erupted after one county judge refused to recuse himself from a case in which one of his fellow county judges had a massive financial interest. The Pennsylvania Superior Court recently split evenly over whether the judge’s failure to recuse was error. Even the lawyer who’s defending the trial judge’s ruling was quoted saying:

“The message was sent loud and clear to every lawyer and every judge in the state. Next time someone is in front of any court in Pennsylvania where one of the judges has a piece of the action on that case – no one’s going to ever do it again.”

“Next time.” The Third Circuit judges did the right thing this time. Reading about the Pennsylvania judiciary’s latest embarrassment, I bet they’re glad they did.

The 2015 judicial financial disclosure reports are out, and Chief Judge McKee dissents

Here is an interesting new article by Zoe Tillman in the National Law Journal about the wisdom of forcing federal judges to publicly reveal the banks where they hold accounts. It features Third Circuit Chief Judge Theodore McKee, whose 2015 report stated: “I see no reasoned or legitimate reason for requiring disclosure of where bank accounts are held,” and “As far as I am concerned, this is an invitation to identity theft and fraud and will not be corrected until someone is victimized by this mindless requirement!!”

Conflict-searchers and identity thieves can find the the 2015 reports here. (My 2014 post about the disclosure reports is here.)

The article reported that Chief Judge McKee did not expect his protest to change the status quo, but, channeling his inner legal blogger, “I feel better about doing something that I don’t believe in if I register my protest.”

New opinion — bankruptcy court can void an expired union contract

In re: Trump Entertainment Resorts — bankruptcy — affirmance — Roth

The Third Circuit today upheld a bankruptcy-court ruling voiding the continuing terms of a union’s expired collective-bargaining agreement in the Trump Taj Mahal’s Chapter 11 reorganization. The court summarized its reasoning thus:

Under the policies of bankruptcy law, it is preferable to preserve jobs through a rejection of a CBA, as opposed to losing the positions permanently by requiring the debtor to comply with the continuing obligations set out by the CBA. Moreover, it is essential that the Bankruptcy Court be afforded the opportunity to evaluate those conditions that can detrimentally affect the life of a debtor, whether such encumbrances attach by operation of contract or a complex statutory framework.

The appeal had received recent attention, on this blog and elsewhere, after counsel for the casino filed a letter on January 4 asking the court to hurry up and issue an opinion. How Appealing has links to early news coverage of today’s opinion.

Joining Roth were Shwartz and Scirica. Arguing counsel were Kathy Krieger for the union and Roy Englert for the casino.

New opinion — Third Circuit rejects Super Bowl ticket appeal based on standing

Finkelman v. NFL — civil / standing — affirm/dismiss — Fuentes

The NFL allegedly makes only 1% of Super Bowl tickets available to the public. New Jersey has a statute (apparently intended to prevent event-organizers from favoring insiders over the public) making it illegal to withhold from the public more than 5% of available seating for an event. Two plaintiffs — one who bought above-face-price scalped Super Bowl tickets, one who balked — sued the NFL in federal court, alleging that its Super Bowl ticket sales violated the NJ law. Today, the Third Circuit held that both plaintiffs lacked standing to argue that the NFL violated the statute.

I feel sure this opinion will be cited heavily by future standing opponents in the circuit. I won’t claim to have my brain fully wrapped around the standing issue here, but the notion that the guy who bought scalped tickets lacks standing — a position even the NFL didn’t advance — strikes me as a mighty tough sell.

Joining Fuentes were Smith and Barry. Arguing counsel were Bruce Nagel for the plaintiffs and Jonathan Pressment for the NFL.

Supreme Court rejects Third Circuit’s pro-prisoner filing-fee rule

This past April, the Third Circuit in Siluk v. Merwin sided with prisoners in a circuit split over how much inmate litigants had to pay each month to cover multiple filing fees. Interpreting the PLRA, the divided CA3 panel held that payments were capped at 20% of the inmate’s monthly income, meaning, for example, that an inmate who owed 5 filing fees would be docked 20% of his monthly income until each of the fees was paid sequentially. Other circuits had held that inmates could be billed 20% of their income for each suit they filed, simultaneously, meaning that the inmate who owed 5 filing fees could be docked his entire income each month. In June, the Supreme Court granted certiorari to resolve the circuit split, as I reported here.

This week a unanimous Supreme Court briskly rejected the pro-prisoner rule the Third Circuit (along with the Second and Fourth Circuits) had adopted. The case is Bruce v. Samuels, the USSC opinion is here.

Court explains how attorney active/inactive-status will work — important emails going out Friday [updated]

The Third Circuit yesterday posted this announcement on its website to give details on the procedure for the attorney-status framework that the court enacted as part of its revisions to the attorney-discipline rules last July. Under the new framework, any attorney who has not entered her appearance within the last five years (note that the five years runs from the date the attorney entered her appearance, not the date that the case was closed) will be moved to inactive status (and will be ineligible to practice in the Third Circuit until she successfully applies for reactivation) unless she affirmatively elects to remain on active status.

An email will go out on Friday from the court to those attorneys who are admitted to the Third Circuit bar who have not entered their appearance in the last five years. That email will contain a hyperlink that attorneys can use to elect their status.

Check the court’s announcement for all the details.

UPDATED: a careful reader points out that the clerk’s office phone number provided in the announcement is incorrect. The number should be (215) 597-2995.

Senate confirms Restrepo, finally

The Senate has confirmed L. Felipe Restrepo to the Third Circuit. He will fill a judgeship that has been vacant since Judge Scirica took senior status on July 1, 2013, 924 days ago.

UPDATE: the vote for confirmation was 82 to 6.

Recent Third Circuit judges received their commissions within a few days of their confirmation votes, so we should have a new Third Circuit judge by the end of the week, maybe tomorrow.

Third Circuit revives employment-discrimination suit

Connelly v. Lane Construction — employment discrimination — vacate & remand — Jordan

Sandra Connelly was a truck driver. According the suit she later filed, her male co-workers harrassed her, and her complaints about this harassment strained her work relationships. When the company then laid off drivers, she alleged, she was let go before less-senior male drivers, and when the company recalled laid-off drivers, the company brought back less-senior men but not her. She sued under title VII and state law, but the district court dismissed based its conclusion that she failed to plead a sufficiently plausible gender-discrimination claim. Today, the Third Circuit vacated that dismissal, holding that Connelly’s claims were sufficient to survive a motion to dismiss. The court reiterating that a complaint need not establish a prima facie case in order to survive dismissal, and that the test is whether the complaint is plausible on its face, a test that can be met “even if one believed it ‘unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.'”

Joining Jordan were Fisher and Chagares. Arguing counsel were Emily Town (formerly of Stember Cohn but now a WDPA clerk) for the employee, Samantha Clancy (formerly of Ogletree Deakins but now corporate counsel) for the appellant, and Christine Back for the EEOC as amicus appellant. (Neither Town nor Clancy are on their firms’ websites.)

Does nagging the court to issue an opinion work?

This interesting Law360.com article last week by Cara Salvatore describes an unusual move by  prominent appellate lawyer Roy Englert in a pending Third Circuit appeal. The appeal involves a union’s challenge to part of an Atlantic City casino’s bankruptcy reorganization; Englert represents the casino. The appeal was argued on March 4 before Shwartz, Scirica, and Roth. Englert’s letter “request[s], in all respect, that a decision, one way or the other, be issued in the very near future.” It closes, “With respect, in the case of the [casino], we are now at a point that a decision is needed very soon” and requests “a decision as soon as practicable.”

My two cents: I see nothing wrong with a party explaining unusual time-urgency in its briefs or at oral argument, but sending the court a post-argument hurry-up letter strikes me as a risky move.

Stay tuned.

New opinion — an alphabet-soup Clean Air Act affirmance

Group Against Smog & Pollution v. Shenango Inc. — environmental — affirmance — Van Anterwerpen

A company runs a plant that’s subject to the NAAQS established by the EPA, requiring them to create a SIP, which was enacted by the ACHD, but the EPA and the DEP and the ACHD sued for violations of the SIP and then GASP did too. I think. Today the Third Circuit affirmed dismissal of the private suit against the polluter, holding that the private suit was barred by the diligent-prosecution bar of the Clean Air Act.

Van Antwerpen was joined by Fuentes and Shwartz. The case was decided without argument (“TCWDWA”).

New opinions — another blow against class arbitration, and a plain-error sentencing reversal

Chesapeake Appalachia v. Scout Petroleum — arbitration — affirmance– Cowen

Last year in Opalinski the Third Circuit held that the availability of class arbitration is an issue for courts to decide unless the parties’ arbitration agreement provides otherwise “clearly and unmistakeably.” Today, the court held that the parties’ arbitration agreement here, which incorporated rules promulgated by the American Arbitration Assoc., did not delegate the class arbitrability decision to the arbitrators with the requisite clarity, and therefore it affirmed the district court’s order vacating the arbitrator’s decision.

Joining Cowen were Shwartz and Krause. Arguing counsel were Robert Pratter of Cohen Placitella for the appellants and Daniel Donovan of Kirkland & Ellis for the appellee.

US v. Moreno — criminal sentencing — reversal in part — Fisher

Applying plain-error review, the Third Circuit today vacated a criminal defendant’s sentence because the defendant’s right of allocution was violated when the court permitted the prosecutor to vigorously cross-examine the defendant during his allocution. The court held that the error was plain even though “no previous cases have explicitly proscribed cross-examination during allocution,” because cross-examination was clearly contrary to the purpose of allocution. Interestingly, the opinion went on to say that, even if the error here were not plain, the court would still exercise its supervisory power to hold that defendants may not be cross-examined during allocution. The court also affirmed the defendant’s conviction (concluding it was clear a Confrontation Clause violated occurred when a witness read into the record law enforcement reports, but that the error was harmless) and rejected a challenge to imposition of a sentencing enhancement.

Joining Fisher were Chagares and Jordan. Arguing counsel were Brett Sweitzer of the federal defender for Moreno and Jane Datillo for the government.

New opinion — an ERISA loss for a religious hospital

Kaplan v. St. Peter’s Healthcare System — ERISA — affirmance — Ambro

A Catholic hospital was sued by one of its employees who alleged that the hospital violated ERISA by, among other things, under-funding its employees’ retirement plan by over $70 million. The hospital moved to dismiss the suit, claiming that as a church agency it qualified for a certain ERISA exemption. Yesterday the Third Circuit affirmed a district court ruling denying the hospital’s motion to dismiss, holding that, although the ERISA exemption applies to retirement plans established by a church and then maintained by a church agency, it does not apply to plans established by a church agency.

A phalanx of amici appeared on both sides and the opinion notes that a Seventh Circuit case involving the same issue is pending now, so I doubt this fight is over yet.

Joining Ambro were McKee and Hardiman. Arguing counsel were Jeffrey Greenbaum of Sills Cummis & Gross for the hospital and Karen Handorf of Cohen Milstein for the employee.

New opinion — employer win in age-discrimination suit

Willis v. UPMC Children’s Hospital — employment discrimination — affirmance — Van Antwerpen

After a hospital fired a 61 year-old nurse, the nurse sued under the Age Discrimination in Employment Act and a state statute. The district court granted the hospital’s summary judgment motion, and today the Third Circuit affirmed.

Joining Van Antwerpen were Fuentes and Shwartz. The case was decided without oral argument.

Brookings blogger thinks Restrepo will be Obama’s last circuit appointment

Russell Wheeler has this blog post at Brookings, entitled “No further Obama impact on the make-up of Courts of Appeals.”

Wheeler is a former deputy director of the Federal Judicial Center. The balanced and informative post begins:

The Senate is set to confirm U.S. District Judge L. Felipe Restrepo to the Third Circuit Court of Appeals on January 11th, 425 days after his nomination. Median days from nomination to confirmation of Obama’s 55 circuit appointees (counting Restrepo) is 229, compared to 219 for Bush’s 60 appointees and 139 for Clinton’s 65 appointees.

There will be little need to update these figures, because any 2016 circuit confirmations after Restrepo are unlikely. His confirmation will also mark the high point of Obama’s overall impact on the makeup of the courts of appeals.

Certainly reason for pessimism that Judge Rendell’s seat will be filled any time soon.

New opinion — qualified immunity for denial of treatment for condition that could lead to impotence

Michtavi v. Scism — prisoner civil rights – reversal — Rendell

A prisoner underwent surgery for a prostate issue. The prison surgery allegedly caused retrograde ejaculation, which, if untreated, could leave him impotent. Prescription treatment was available, but the prison refused it pursuant to a policy against treating sexual dysfunction. The prisoner filed suit, the prison administrators moved to dismiss based on qualified immunity, and the district court denied qualified immunity. Today, the Third Circuit reversed, concluding that there is no clearly established prisoner right to medical treatment for conditions that could lead to impotence.

Joining Rendell were Vanaskie and Sloviter. The case was decided without argument; the prisoner was pro se on appeal.

New opinion — rest-stop operator not a state actor

PRBA Corp. v. HMS Host Toll Roads, Inc. — civil — affirmance — Smith

The Third Circuit today held that a private company that operates service plazas on state highways was not a state actor for purposes of a suit under 42 USC 1983. The company had been sued by Bare Exposure (“Atlantic City’s #1 All Nude Gentleman’s Club”) for removing its brochures from service-plaza common areas. The court affirmed the district court’s grant of summary judgment because the state was directly involved in neither the brochure removal nor the day-to-day operations of the service plazas.

Joining Smith were Fuentes and Nygaard. Arguing counsel were Michael Daily for the strip club and Catherine Bledsoe for the service-plaza operators.

Senate finally schedules floor vote on Restrepo nomination

This past spring, Senator Pat Toomey was getting battered over the delay in scheduling a committee hearing on the Third Circuit nomination of Judge Luis Felipe Restrepo. In May, Toomey’s office responded in part by assuring the public that Toomey was “confident he will be confirmed by year’s end.”

Although Toomey did not say it at the time, it now appears that “by year’s end” meant that Toomey had already decided to let the nomination languish until year’s end. Thus in the months that followed, he ignored call after call after call after call to ask the Republican leadership for a confirmation vote.

Now, just as critics predicted, when earlier this week Toomey finally did ask for a confirmation vote, it was scheduled right away. The floor vote on Restrepo’s nomination is set for January 11, 2016.

I’m happy for Judge Restrepo that he’s getting a vote finally. And it’s great for the Third Circuit that one of its vacancies will (presumably) be filled. But I’ll never believe that it shouldn’t have all happened half a year sooner.



Major 2255 opinion reissued with minor changes

Back in September, the Third Circuit issued an opinion in US v. Doe that I described as “a glorious 50-page monument to the absurd complexity of habeas law.”

As if to underscore the point, the court today granted panel rehearing and issued a new opinion, now 51 pages. The outcome hasn’t changed, and the only differences I can spot are a new footnote 4 on page 14 and an additional government lawyer in the caption.

UPDATE: I also see some minor wording changes on pages 11 and 12, removing some ‘possible/possibility’ language.

The great published-opinion drought of 2015

The Third Circuit last issued a published opinion on November 25, two weeks ago today. The court has issued 34 non-published opinions since then. Two weeks is easily the longest the court has gone without publishing an opinion since I started this blog a year and a half ago.

Will today be the day the opinion drought finally ends?

New telecommunications opinion

AT&T v. Core Communications — civil / telecommunications — vacate & remand — Roth

You know who AT&T is. Core Communications is a specialized phone company whose customers are all internet service providers (ISPs). AT&T’s customers called Core’s customers. Core billed AT&T for the calls, AT&T refused to pay, Core filed a complaint with the state utility commission, and the utility commission ruled in Core’s favor. Finally AT&T sued in federal court, seeking an injunction to enjoin enforcement, arguing that the state utility commission violated federal law, and the district court granted summary judgment to AT&T. Today, the Third Circuit vacated and remanded with instructions to grant summary judgment in Core’s favor.

Joining Roth were Ambro and Scirica. Arguing counsel were Shaun Sparks for the utility commission, Christopher Van de Verge for Core, and Mayer Brown associate Christopher Comstock for AT&T.

New employment-law opinion

Babcock v. Butler County — employment / FLSA — affirmance — Sloviter

A divided Third Circuit panel today affirmed a district court ruling a dismissing without discovery a suit brought by prison guards alleging that their full meal time was work that should have counted towards overtime. The panel majority joined a circuit majority in adopting a predominant-benefit test to decide whether meals were work time under the Fair Labor Standards Act, and held that they were not even though the guards pled that they were required to be prepared to serve at a moment’s notice during meals.

Joining Sloviter was Fuentes; Greenaway dissented. Arguing counsel were Justin Swidler for the guards and Marie Jones for the county.

Orin Kerr weighs in on the Google Cookie opinion

Orin Kerr has posted this lengthy explanation and analysis at Volokh Conspiracy of the Third Circuit’s opinion in In re Google Inc. Cookie Placement Consumer Privacy Litig. (my prior post on the case is here). The Third Circuit opinion discussed at length Professor Kerr’s scholarship, and his take on the opinion is likely to be taken seriously, too.

Professor Kerr’s bottom-line assessment:

I think the opinion is correct. It’s somewhat easy for me to say that, as the court agreed with and quoted my earlier writing on this issue * * *. Seriously, though, this was the first thorough and careful treatment of a really hard and important issue. Good for the Third Circuit for delving into the details of it; I suspect the opinion will be very influential.



Pittsburgh’s federal courthouse to be renamed tomorrow for Judge Weis, “the nicest judge”

Tomorrow morning the Third Circuit will hold a special session to rename Pittsburgh’s federal courthouse for former Third Circuit Judge Joseph F. Weis Jr., this charming Triblive.com story by Brian Bowling reports. Judge Weis died last year at 91, the year after he retired — his obituary, which quotes Judge Hardiman, is here.

From the story:

He’s not the first federal judge to have his name on a courthouse, but Joseph F. Weis Jr. could be the nicest judge to receive the honor.

“He never lost his humility,” said Roslyn Litman, a charter member of the Academy of Trial Lawyers of Allegheny County.

* * *

Litman, a Downtown attorney, cited Weis’ work in helping found the academy and spending countless hours on its mission of improving relations between lawyers and judges in the Western District of Pennsylvania.

“He uniquely represents the spirit of cooperation between the bench and the bar … by the work he did with the academy and the bar association,” she said.

New opinion — Third Circuit expands temp-employee rights

Faush v. Tuesday Morning — employment discrimination — partial reversal — Fuentes

An African American employee of a temporary-employment agency was assigned to work at a store, and it went badly. Ultimately, the temp sued the store under Title VII and other statutes, alleging that he was the victim of racial discrimination. The district court (some guy named Restrepo) granted summary judgment against the temp because he was not the store’s employee. Today, the Third Circuit vacated in part, holding that jurors could find that the temp was the store’s employee under Title VII. The opinion acknowledged that its ruling “will pertain to a large number of temporary employment arrangements.”

Joining Fuentes were Fisher and Krause. Arguing counsel were Wayne Ely for the temp and Robert Luxen for the store.

Quality commentary on the panel-voting-paradox case

David Post wrote this very informative piece for Volokh Conspiracy about last week’s Hanover 321 ruling, entitled “Wild voting paradox case in the 3rd Circuit.”

Post writes:

It must happen a lot.  And it is, one would think, quite fundamental to how appellate courts go about their business.

* * *

You would think that the hundreds of appellate courts in this country would — long ago — have addressed this matter, and come up with a procedure or protocol that they would follow when performing this most basic of their functions.  Indeed, one might even say that a multi-member court can’t really go about its business of deciding cases until it first decides how it is going to decide — by outcome-voting or by issue-voting.

But in fact, there are only a handful of examples where courts publicly address their choice of voting procedure or their views on the proper means to resolve the Paradox.

* * *

So the issue is — finally! — joined; I’m not aware of another case that engages the issue as forthrightly, nor one that lays out the opposing positions as clearly.

Well worth reading in full.

Also of possible interest is this reddit thread on the case.


New prisoner-civil-rights opinion

Chavarriaga v. State of N.J. Dep’t of Corr. — civil rights — reversal in part — Greenberg

In this prisoner-civil-rights appeal, the Third Circuit partially reversed a district court ruling for the defendants. The plaintiff alleged that, in retaliation for an excessive-force suit she had filed, prison staff forced her to be naked in view of male guards, subjected her to a painful body cavity search, denied sanitary napkins and medication, and locked her for days in a cell with nothing to drink but the water in the toilet. The Third Circuit rejected the district court’s ruling that these acts were not serious enough to violate the Eighth Amendment. The court also reversed dismissal of related equal-protection and state-law claims. The court affirmed dismissal of her claims against prison supervisors, but remanded to give the plaintiff a chance to identify the prison staff responsible.

Joining Greenberg were Ambro and Fuentes. Arguing counsel were Noel Crowley for the prisoner and Daniel Vannella for the defendants.


Happy Birthday, Restrepo nomination!

Today’s New York Times features this editorial slamming Senate Republicans, and PA Senator Toomey in particular, for the delay in confirming Judge L. Felipe Restrepo. Judge Restrepo was originally nominated to the Third Circuit a year ago yesterday.

It’s a powerful editorial. It urges Senate Democrats to “make these inexcusable delays a national issue,” and it concludes:

With each day that passes without a vote on Judge Restrepo and other nominees, Republicans undermine the justice system, and the biggest victims are ordinary Americans who cannot count on fully functioning courts.

Also today, P.J. DAnnunzio has this story in the Legal Intelligencer, headlined, “One Year After Nomination, Restrepo Still Not Confirmed.” It quotes a law professor blaming Toomey for the delay: “Either he’s not pushing or he doesn’t know how to push.”

New opinion — a glorious panel-voting mess, plus a correction

Hanover 3201 Realty v. Village Supermarkets — antitrust — vacate in part — Fuentes

This is an antitrust case that arose out of a real-estate dispute between two supermarkets. The outcome of the appeal turns on two issues: standing and the merits. The three judges on the panel all disagreed on the issues and the outcome, and the result is simply appeals-nerdtastic.

Judge Ambro’s concurrence cogently explains:

This case presents what academic literature terms a “voting paradox.” On the one hand, two judges (Judge Greenberg and I) believe that the outcome should be that Hanover’s suit not proceed, though we do so for different reasons. However, one majority of this Court (Judges Fuentes and Greenberg) believes that Hanover has antitrust standing (I do not because I do not discern antitrust injury), while another majority (Judge Fuentes and I) believes that Hanover should survive Village’s motion to dismiss (assuming it has antitrust standing). The paradox is that, if I vote on the judgment of this case (affirm or reverse) based on my individual views, a majority of the Court will have ruled against the prevailing party on each relevant issue, meaning that our Court’s reasoning would not support its judgment. However, if I follow, despite my dissent, Judge Fuentes and Greenberg on the antitrust standing issue, my individual vote would be inconsistent with my view of who should win were I alone ruling.

He explains the choice is between “issue voting” and “outcome voting”:

Broadly speaking, the former occurs when a judge surveys the holding on each question of law presented; a majority vote on any given issue counts as a holding of the court, and the remaining judge is bound by it as if it occurred in a prior precedential case.5 The latter, and more common, scenario occurs when a judge votes on the result of a case (affirm, vacate, reverse, etc.) according to his or her view of the proper outcome and without regard to the views of the other judges on a panel. Even if a careful reading of the judges’ opinions in a case shows that a majority would rule for the losing party on each relevant issue, an outcome-vote, as that term is usually used in the relevant literature, results in a win for the party the majority of judges think should win regardless of reasoning.

Here, the panel chooses issue voting — here again the panel is divided, naturally. (On a first read, I tend to agree with Greenberg on the voting issue.) It is a glorious confusing mess, dear readers, and I guarantee you’ll love it.

The panel was Fuentes, Ambro, and Greenberg. Arguing counsel were double Tarheel Lindsey Taylor of Carella Byrne for the appellant and Anthony Argiropoulos of Epstein Becker for the appellees.


Also today, the court corrected the error in Tuesday’s Google Cookie case that I spotted, and also corrected a typo in September’s Tonnage Clause case.

Free Speech Coalition panel rehearing: keep fighting to the final bell

Back in September, the Third Circuit granted panel rehearing in Free Speech Coalition v. AG. The original panel ruling had upheld federal record-keeping and inspection requirements imposed on pornography producers. The panel had the option under FRAP 40(a)(4) to decide the case without reargument, but it granted reargument and scheduled it for December 9.

This panel rehearing grant offers an object lesson in the importance of battling to the end. Here, the appeal was originally argued in December 2014, and it was decided by the panel on May 14, 2015. Lesser lawyers would have surveyed the landscape on May 14, decided that rehearing was a lost cause, and moved on.

But over a month after the panel decision (still within the 45-day FRAP 40(a)(1)(C) window to seek rehearing), the Supreme Court issued a new decision that arguably cast doubt on the CA3 ruling. Counsel for the Coalition caught it and pounced. A week later, they filed a rehearing petition focused on the new Supreme Court ruling. The government opposed rehearing, but the panel (Rendell, Smith, Scirica) granted the motion and vacated its prior ruling.

Whatever the final result, counsel’s diligence has given them another shot to win their case. Impressive work.

As a postscript, I noticed a couple other interesting things while reviewing the docket to write this post. First, the court granted the parties’ motion to file a deferred appendix due to the large size of the record. That’s an option many lawyers would not consider and the Third Circuit’s LAR 30.4 discourages, but the court allowed it here so it’s worth keeping in mind.  Second, the court granted the parties’ motion to dispense with filing paper copies of the large joint appendix. Who knew?

New opinion — a major consumer privacy ruling (with an error) [Updated]

In re Google Inc. Cookie Placement Consumer Privacy Litig. — consumer class action — vacate in part — Fuentes

Google apparently found a clever way to defeat the Safari browser’s cookie-blocking feature, but sometimes clever is illegal. When a grad student discovered what Google had done, Google had to pay out almost $40 million to settle two government suits. Then consumer plaintiffs filed class-action suits alleging various federal- and state-law violations, which were consolidated by the Multi-District Litigation panel. The district court dismissed the suits under FRCP 12(b)(6), and the consumers appealed. Today, the Third Circuit largely affirmed the dismissals, but vacated the dismissal of certain state-law privacy claims.

Unfortunately, the opinion contains a big error. On page 16 of the slip opinion, in a road map preview, the opinion states, “we will vacate the dismissal of plaintiffs’ Wiretap Act claim.” But in fact the opinion “affirm[s] the District Court’s dismissal of the plaintiffs’ Wiretap Act claim” at p. 41. Oops.

(Aside: not the first time that’s ever happened.)

Joining Fuentes were Fisher and Krause. Arguing counsel were Jason Barnes for the consumers and Michael Rubin for Google.


UPDATE: the court has issued a correction.

Third Circuit cases included in new contraception-mandate cert grant

The Supreme Court today granted certiorari in 7 cases involving challenges to the Affordable Care Act’s contraception-mandate. Two of the cases are out of the Third Circuit; both were decided in the same opinion upholding the mandate.

Lyle Denniston has this early coverage of the new grant at Scotusblog. The Court indicated (Scotusblog link here) that it expects to hold the argument in March.

Watch out, Buzzfeed! A little Friday blog navel-gazing.

Hey neat. My blog software tracks the number of visitors to CA3Blog, and last month was a new record:


It’s been fun watching the number of people reading my blog lately taking off. (And, yes, I’m still cackling about Judge Ambro quoting the blog in an opinion.)

For the stat-heads, I’ll explain that the growth in readers is more obvious when you realize that, before September, the blog’s 3 biggest months were all caused by specific posts getting picked up by How Appealing (Erwin last October, en banc analysis plus Restrepo in March, and publication stats in April). Bashman has way-way-way more readers than I do, so when he links to a post of mine, my visits spike. But the last two months have been different — no How Appealing links, just a steady daily readership that’s more than double what it used to be.

So, welcome to the blog and thanks, fellow CA3 junkies.

New immigration opinion

Singh v. AG — immigration — denial — Jordan

A lawful permanent resident was convicted of counterfeiting and fraud and left the country. Then he returned (apparently he was allowed back in by mistake) and proceeded to live here without incident for 7 years. before being detained for removal by ICE. He challenged his removal, arguing he was eligible for cancellation of removal by statute. The BIA rejected his challenge, and today the Third Circuit denied his appeal.

The court held that the petitioner’s seven-year clock never started due to his prior moral-turpitude conviction plus the inclusion of that crime in his removal notice. The court deemed itself bound by prior circuit precedent which in turn gave Chevron deference to a BIA ruling that today’s court described as “not without flaws,” “formalistic,” and “odd,” noting, “It would behoove the BIA to provide some clarity in this area.” Slip op. at 13 n.7.

Not a very satisfying result, but sometimes that’s what faithful judging looks like.

Joining Jordan were Fisher and Chagares. Arguing counsel were Nicholas Mundy for the petitioner and Lindsay Murphy for the Government.

The mysterious Third Circuit panel of Benton, Sentelle, and Gilman

On November 23, an unusual Third Circuit panel will sit for oral argument: Judge William Benton from the Eighth Circuit, Senior Judge David Sentelle from the D.C. Circuit,* and Senior Judge Ronald Gilman from the Sixth Circuit.

Now, this sort of thing isn’t unheard-of. Sometimes all the judges on a court have to recuse, and, when that happens, outside judges pinch hit. For example, just a couple months ago three Third Circuit judges decided this published Fourth Circuit case.

But the mystery in this case is why?

Presumably all the Third Circuit judges recused, but the basis for those recusals eludes me. The cases before the panel (one argued, one submitted on the briefs) are bankruptcy appeals. Both debtors are members of the same Pittsburgh business-litigation law firm; the legal issues are similar, and the attorneys on appeal are the same. But, after scanning the dockets and scouring the internet and asking a few smart folks who know these things, I can’t find any hint of why either case would require any (let alone every) Third Circuit judge to recuse.

This isn’t an important mystery, I admit, but mysteries needn’t be important to be maddening. So if anyone thinks they have the solution, please comment here or email me.

* Judge Sentelle is (like me in this respect, and quite possibly in only this respect) a ‘double Heel,’ having earned both his undergraduate and law degrees from the University of North Carolina. When I was in law school I was encouraged to apply to clerk for him because he was a feeder judge who often hired top UNC law students. He reportedly named his daughter Reagan and was a protege of Jesse Helms: I didn’t apply.


Third Circuit’s judicial emergency, on and on

The Third Circuit’s judicial emergency is the second-oldest circuit emergency in the country. Only the Fifth Circuit has had an emergency for longer. Judge Scirica went senior in July of 2013, and his seat remains empty, well over two years later.

And no one has even been nominated yet for the Third Circuit’s second empty seat, fully four months after Judge Rendell went senior, and nine months after she announced that she would.

The upshot? Third Circuit IOP 3.1 provides:

Unless there is a judicial emergency, each panel includes either two active judges of this court or one active judge and one senior judge of this court.

But because of the judicial emergency, the Third Circuit’s active judges are now playing a radically smaller than normal role in shaping its precedent: four out of the last five CA3 published opinions were issued by panels with a single active judge and two senior judges.

The last Republican administration forcefully condemned delays in confirming its judges. It blasted the idea that it was okay “to leave these critical seats empty.” It said, “the American people deserve better” It said, “we need our government to be at full strength.”

We still do.

Arbitration, “de facto corporate immunity,” and the Third Circuit

The New York Times today ran the second part of a special report on arbitration, entitled “Arbitration, a ‘Privatization of the Justice System.'” (Part I, with a cameo by avid hunter and EDPA Judge Schiller, is here.)

The story ends on this depressing note:

After the ruling, Ms. Pierce’s lawyers wrote to Mr. Kalogredis’s arbitration firm questioning his qualifications. The firm, American Health Lawyers Association, responded that it was not its responsibility to verify the “abilities or competence” of its arbitrators.

This brings to mind the recent Third Circuit case of Goldman Sachs v. Athena Venture (here), where the court refused to vacate an arbitration even though one of arbitrators allegedly committed gross misconduct. The opinion criticized the arbitration authority for its “remarkable” failure to investigate the arbitrator once the first evidence of misconduct came to light, but the court confirmed the arbitration award anyway.

And the broader concerns about arbitration’s growth brings to mind the Third Circuit’s unfortunate 2014 ruling in Khazin v. TD Ameritrade (here). That decision has been described by one commentator as extending to whistleblower suits the “trend of courts conferring de facto corporate immunity.”

The Third Circuit is sure to continue to face challenges to the expanding use of arbitration, and it will be interesting to see whether the growing concern about its fairness is reflected in case outcomes.

Leahy urges Toomey to ask for Restrepo vote

Senator Patrick Leahy (D-Vt.) is keeping the heat on Senator Pat Toomey over the mind-boggling delay of the nomination of Judge L. Felipe Restrepo to the Third Circuit. In this statement earlier this week on federal judicial nominations, Leahy singled out the Restrepo delay — 348 days and counting, and compared it with the 183 days it took Democrats to confirm Bush nominee Judge Thomas Hardiman:

One of those vacancies is an emergency vacancy on the U.S. Court of Appeals for the Third Circuit in Pennsylvania.  Judge Luis Felipe Restrepo is nominated to fill the vacancy and he has strong bipartisan support from his home state Senators, Senator Toomey and Senator Casey.  At Judge Restrepo’s hearing, Senator Toomey stated that “there is no question [Judge Restrepo] is a very well qualified candidate to serve on the Third Circuit” and underscored the fact that he recommended that the President nominate Judge Restrepo.  Once confirmed, Judge Restrepo will be the first Hispanic judge from Pennsylvania to ever serve on this court and only the second Hispanic judge to serve on the Third Circuit.

There is absolutely no reason to delay a vote on Judge Restrepo’s confirmation, and yet his nomination has been pending on the floor for over three months.  Since he was first nominated, Judge Restrepo’s nomination has been pending for a staggering 348 days.  The National President for the Hispanic National Bar Association, which strongly supports Judge Restrepo’s nomination, wrote last week in the HuffingtonPost about the inexcusable delay in his confirmation.  I ask unanimous consent to include a copy of this article in the Record at the conclusion of my remarks.

Contrast Senate Republican’s treatment of Judge Restrepo with President Bush’s nominee to the Third Circuit, Judge Thomas Hardiman, who was nominated in the last two years of the Bush presidency.  Judge Hardiman was confirmed in nearly half the time Judge Restrepo has been waiting, taking only 183 days from nomination to his confirmation.  Furthermore, it took only 7 days for Judge Hardiman to receive a confirmation vote once he was reported out of the Senate Judiciary Committee.  Judge Restrepo has been pending on the floor for 109 days – 15 times longer than Judge Hardiman.  I hope the Republican Senator from Pennsylvania will implore his leadership to bring this highly qualified nominee up for a vote without further delay.

And two earlier pieces of note:

Huffpost post by the president of the Hispanic National Bar Association

Philly.com op-ed by a writer from Center for American Progress



Judge Krause discussing ethics Nov. 13

Third Circuit Judge Cheryl Ann Krause is leading an ethics discussion over lunch at a White Collar Practice Conference being put on by the Pennsylvania Criminal Defense Lawyers. The conference will be at the Union League in Philadelphia. The luncheon with Judge Krause will be on Friday, November 13 at 12:40.  Attendees get 1/2 hour of CLE credit, too.

Some notable Third Circuit practitioners also are presenting at the conference, including Ellen Brotman, Lawrence Lustberg, and Robert Zauzmer.

Details and registration here.

Free online legal research in the pipeline, and now

Erik Eckholm had this story in yesterday’s New York Times, headlined “Harvard Law Readies Trove of Decisions for Digital Age.” He wrote:

Now, in a digital-age sacrifice intended to serve grand intentions, the Harvard librarians are slicing off the spines of all but the rarest volumes and feeding some 40 million pages through a high-speed scanner. They are taking this once unthinkable step to create a complete, searchable database of American case law that will be offered free on the Internet, allowing instant retrieval of vital records that usually must be paid for.

Everything is expected to be available by 2017. Intriguing.

Reading this story got me thinking about the online legal research options available already. I have a decent LexisNexis subscription — it’s actually my practice’s single biggest annual cost. But I often use free options instead, mostly for uncompensated research like for this blog.

The main free-legal-research source I use is Google Scholar. If you’ve never used it, it’s worth a look. Overall, I find it good for finding specific cases but not much use for sophisticated legal research. When I created a big Excel spreadsheet of recent en banc cases while researching my en banc analysis post, it was quite handy to be able to include hyperlinks to the cases. The good: broad coverage of published and unpublished cases, easy to limit searches by date and court, and usually includes reporter pagination. The bad: the shephardizing functionality is weak, there’s no way to filter out non-precedential cases, and research is difficult beyond looking for specific words or phrases.

I also sometimes use Villanova Law’s official digital archive of Third Circuit opinions. The search engine is circa 2004 and all you get are the slip ops, but sometimes that’s all you need. (For published cases since I started this blog in April 2014, I just use the blog’s search box, top right, instead.)

I’m also aware of free-for-members options like Casemaker for Pa. Bar members and Fastcase for NJ Bar members, but I don’t use them myself.

Other views? Comments always welcome.

“Why Everyone Is Upset About the Third Circuit’s Recent TCPA Decisions …”

The title of this post is part of the headline of this provocative new post by Michael Daly of Drinker Biddle at the National Law Review. (The rest of the headline: ” — And a Few Reasons Why They Shouldn’t Be).  The TCPA is the Telephone Consumer Protection Act, background here.

Daly begins:

Defendants’ discussions of the Third Circuit’s recent decisions in Leyse v. Bank of America [link] and Dominguez v. Yahoo [non-precedential] have been all doom and gloom. Some of that disappointment is understandable, as the Third Circuit vacated notable defense rulings and expanded the scope of consumers who have statutory standing to file suit under the TCPA. On closer examination, however, both of the decisions offer not only a sword to plaintiffs but a shield to defendants.
And concludes:
But the most important implication of the ruling may be the one that the court does not discuss, namely its effect on class certification. Because class certification is the point at which claims can go from annoying to annihilating, any additional arrow in defendants’ quiver is a good thing. And the Leyse decision appears to be just that. For example, if the proper plaintiff in a TCPA case is the consumer who “answered the telephone when the robocall was received,” id. at 23, and answering parties only have constitutional and statutory standing if they not only have an “injury in fact” but also are a “regular user of the phone line who occupies the residence,” it follows that plaintiffs in a putative class action must prove that they can establish those things on a classwide basis. It is difficult to fathom how references to a calling log alone would ever be able to ascertain such people, let alone prove their claims on a classwide basis. So while the Leyse decision may make it easier for certain consumers to assert individual claims, it also appears to make it harder for consumers to certify a class action.
It’s an informative post. Daly says he’ll have a follow-up post further discussing what the Third Circuit cases mean for TCPA defendants.

New opinion

In re: Avandia Marketing — civil — affirmance — Roth

In an interlocutory appeal arising out of class action litigation over the diabetes drug Avandia, the Third Circuit today affirmed a district court ruling that the plaintiffs adequately alleged standing and proximate causation for their RICO claims against GlaxoSmithKline.

Joining Roth were Ambro and Scirica. Arguing counsel were  John Beisner of Skadden Arps for GSK and Samuel Issacharoff for the plaintiffs. The case was argued over 11 months ago.


New opinion — insurer wins coverage dispute

Hanover Insurance v. Urban Outfitters — insurance — affirmance — Roth

Starting in 2009, Urban Outfitters marketed clothes branded as Navajo (yeesh), and the Navajo Nation sued them for trademark infringement. Urban Outfitter’s insurer then sought a declaratory judgment that it was not on the hook, which the district court granted. Today, the Third Circuit affirmed, holding that a “prior publication” exclusion in the insurance contract applied.

Joining Roth were Ambro and Scirica. Arguing counsel were Ilan Rosenberg of Gordon & Rees for the outfitters and Andrew Gallogly of Margolis Epstein for the insurer.

Two potential Third Circuit cert grants — Georgiou and Erwin

I posted yesterday about the two Third Circuit cases (Merrill Lynch and Heffernan) the Supreme Court has already agreed to review this term.

Two other Third Circuit cases are listed on Scotusblog’s “petitions we’re watching” page, and both are highly interesting:

  • Georgiou v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about the cert petition here.
  • Erwin v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about Erwin many times (“my runaway winner for Worst Decision of 2014,” etc.), most recently here.  Erwin’s counsel of record for the cert petition is Supreme Court vet Kevin Russell of Goldstein & Russell. The government got three extensions before answering. Erwin replied that the government’s response “is as radical and unfounded as the decision itself.”

A defense practice tip:  unless and until cert is granted and Erwin vacated, plea counsel would be wise to note this passage from the government’s answer (cites omitted):

Defendants can reduce the likelihood
that they will face a remand for resentencing, if they
choose to appeal despite an appeal waiver, by negotiating
provisions in plea or cooperation agreements
limiting the circumstances in which the government
may seek such a remedy. For instance, since the
decision below, defendants in the Eastern District of
Pennsylvania have pleaded guilty pursuant to a plea
agreement providing that “the filing and pursuit of an
appeal constitutes a breach only if a court determines
that the appeal does not present an issue that a reasonable
judge may conclude is permitted by an exception
to the waiver stated in the preceding paragraph
or constitutes a ‘miscarriage of justice’ as that term is
defined in applicable law.”

Such provisions protect a defendant’s ability to assert
reasonable arguments that his claims on appeal
are not barred by the waiver or that the waiver should
not be enforced.

Also of note, the government argues that mere dismissal remains the Third Circuit’s “ordinary” remedy and that no subsequent Third Circuit opinion has imposed Erwin‘s resentencing penalty.

I’ll be on the edge of my seat for the Oct. 30 conference results.


Two Third Circuit cases headed to Supreme Court

So far this term the Supreme Court has granted certiorari to review two Third Circuit cases.

The first is Merrill Lynch v. Manning. The question presented, per Scotusblog:

Whether Section 27 of the Securities Exchange Act of 1934 provides federal jurisdiction over state-law claims seeking to establish liability based on violations of the Act or its regulations or seeking to enforce duties created by the Act or its regulations.

My summary of the Third Circuit opinion noted an explicit circuit split and that the loser had  high-powered counsel (headlined by former acting SG Walter Dellinger), so the cert grant is no big surprise. The case has been set for argument December 1.

The other one is Heffernan v. City of Paterson. Eugene Volokh was among the lawyers who signed the successful cert petition. The QP:

Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.

I called the Third Circuit opinion a head-scratcher and described its holding as “[w]acky.” Time will tell whether the Court agrees.

New opinion — bad faith a basis for dismissal of involuntary bankruptcy petition

In re: Forever Green — bankruptcy — affirmance — Fuentes

Creditors can initiate involuntary proceedings against a debtor. Today, the Third Circuit held that a creditor’s bad faith provides independent grounds for dismissing an involuntary petition. The court adopted a totality-of-the-circumstances for assessing bad faith and held that the district court’s bad-faith finding was not an abuse of discretion.

Joining Fuentes were Nygaard and Roth. Arguing counsel were Aris Karalis for the debtor and Steven Eisenberg for the creditors.

“Some people want our next president to be a woman. Some people want our next president to be a Trump. Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”

Third Circuit Judge Barry spoke earlier this week at a D.N.J. US Attorney’s event. David Lat — managing editor at Above the Law, author of Supreme Ambitions, and confessed creator of the spunkiest legal blog ever — was there and posted this report.

The title of this post is from US Attorney Paul Fishman’s introduction of Barry; here is Lat’s account:

Judge Barry, the older sister of real estate magnate turned presidential candidate Donald Trump, is one of my favorite judicial divas. Last night, however, she was not as diva-licious or controversial as I was expecting. For example, she made no allusions to her little brother’s polarizing presidential bid. (But Paul Fishman did in introducing her: “Some people want our next president to be a woman. Some people want our next president to be a Trump. Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”)

In her remarks, Judge Barry emphasized themes of public service and humility. She spoke about how nervous she was when she first started work as an assistant U.S. attorney, confessing that when asked to write her first appellate brief, “I didn’t know what an appellate brief was!” At her first oral argument, during the defense counsel’s eloquent presentation, she panicked and wrote a note to her supervisor sitting next to her: “What do I say?” He advised her to get up, introduce herself, and argue that the evidence was overwhelming. When she did that, Judge John Gibbons responded by saying, “Frankly, counselor, I am underwhelmed.” It was not her finest hour.

But with hard work, and the help of a great mentor — chief of appeals John Barry, whom she later married — she got better over time. She served as chief of appeals herself, and then as first assistant U.S. attorney, before her appointment to the federal bench.

Oh, and some guy named Alito spoke, too.

En banc procedure in the Third Circuit, redux [updated]

[UPDATE: After reading my post, Legal Sports Report has pulled their article while they review.]

The influential sports-law blog Legal Sports Report is following NCAA and has a lengthy and interesting post today about the en banc process, but the post is wrong on a few points. My original post yesterday on Third Circuit en banc procedures is here.

The Legal Sports Report post claims, “We do not know yet which judges will be on the en banc panel,” explaining:

Generally, recusal decisions are not known until the matter is set for argument, and sometimes not until the day of the argument.

Some have speculated that, because the court’s order granting rehearing en banc named only nine of the active judges as having voted on the en banc petition (judges listed as “Present”), the other three judges who were not named are recused. This speculation is unwarranted.

There were no recusals noted in the court’s order (typically reflected as “Judge Smith took no part in this decision.”). The absence of the three judges (Chief Judge McDonald [oops: he means McKee] and Judges Chagares and Schwartz [Shwartz, actually]) is most likely a reflection of a quirk in the court’s rules.

Petitions for rehearing en banc are circulated to all active judges. The judges wishing to grant rehearing must affirmatively notify the clerk. Judges wishing to deny rehearing, however, may either affirmatively notify the clerk or simply make no response at all; either way, their vote counts as a “no” because rehearing en banc requires a majority of active judges, not a majority of active judges who vote.

So, although one or more of the three active judges not named in the order may have recused themselves, the more likely explanation is that they simply did not vote on the petition for rehearing but will still sit on the en banc panel.

This is wrong. The fact that McKee, Chagares, and Shwartz did not sign the order granting rehearing en banc in NCAA means they will not participate in the rehearing because they have recused themselves, not that they “simply did not vote.” The docket for each en banc case is explicit about this, listing the judges who signed the order granting rehearing en banc with the label “Coram.”

Don’t believe me? Look at Langbord, the gold-coins en banc argued earlier this week. Greenaway is not listed on the on order granting rehearing, and he did not participate in the argument. The last en banc with a recusal before that was Al-Sharif. Chagares is not on the order granting rehearing, and he did not participate in the argument.

(Also, the “sometimes not until the day of the argument” statement is wrong too, as Third Circuit practitioners well know.)

Given that error, all of this is wrong, too:

Bottom line, assuming no recusals, we can expect the en banc panel to have 14 or 15 judges—the 12 active judges plus Senior Judges Rendell and Barry, and possibly Judge Restrepo if he is confirmed prior to argument. Thus, New Jersey will need to find eight votes in order to prevail (a tie vote would leave the district court decision in force as the final decision, but  a tie is highly unlikely—in case of a tie, one judge would likely switch sides and join a narrow decision in order to provide finality to the issue).

These missteps aside, it’s an intelligent post with some plausible head-counting, and I recommend it.

UPDATE: One other thing. I said Legal Sports Report’s head-counting was plausible, but that doesn’t mean I think it’s right. The post reasonably predicts that in NCAA the more liberal judges will side with Congress and more conservative judges with the state. But, in predicting which judges will fall into which camp, the post hypothesizes that the liberals are the judges nominated by Dem presidents and the conservatives are the ones nominated by Republicans. In a lot of circuits that would be give you a reasonably accurate guesstimate, but not here. As I’ve shown in detail here, http://thirdcircuitblog.com/judges/a-closer-look-at-the-third-circuits-recent-en-banc-cases/, nominating party does not match up very well with vote ideology in the court’s recent en banc cases.




Good analysis of this week’s epic NYPD civil-rights reversal

I’ve long been a fan of Bruce Greenberg‘s New Jersey Appellate Law blog, and this week Bruce posted an insightful piece on the Third Circuit’s landmark civil-rights reversal in Hassan v. City of New York.

The entire post is worth reading, but what stood out to me was his description of Judge Ambro’s opinion as ” one of the most important decisions that the Third Circuit has made in some time,” and his prediction that it “will be long remembered.”

For some perspective on the case from the inside, here’s a sharp case timeline posted by the Center for Constitutional Rights, plaintiffs’ arguing counsel. And here’s a post by the Brennan Center for Justice, an amicus in the appeal, quoting one of the lawyers to say that Hassan “is on the right side of history.”

New opinion — deciding what “renewal” means

Indian Harbor v. F&M Equipment — contract — vacate & remand — Roth

The Third Circuit today vacated a summary-judgment grant in an insurance contract dispute, holding that, for a contract to be considered a renewal, it must contain the same or nearly the same terms as the original.

Joining Roth were Ambro and Fuentes. Arguing counsel were appellate lawyer Thomas Peterson of Morgan Lewis for the appellant and Joel Hopkins of Saul Ewing for the appellee.

Third Circuit en banc procedure — the basics and beyond

There was lots of national news coverage of yesterday’s en banc rehearing grant in the New Jersey sports-betting case, and just about every story had an error or two. The Washington Post story originally said 10 to 12 judges would participate, then changed it to “at least 12,” and now it says “possibly 12 or more.” But it’s hard to blame reporters for being confused about en banc procedures — even experienced circuit practitioners can get stumped.

So, let’s first hit the basics:

What is en banc rehearing? Federal appeals courts almost always decide cases using three-judge panels. But in very rare instances, the court decides cases en banc. As I’ve noted, in recent years the Third Circuit has done so in roughly 1 out of every 1000 cases it decides. En banc means the entire court decides the case, but figuring out exactly what ‘the entire court’ means can get tricky. So …

Which judges participate in an en banc rehearing? (“Participate” means to vote on which side wins the case (affirm or reverse), not on whether to grant rehearing in the first place.) It’s math:

  • All of the active Third Circuit judges (right now there are 12; senior judges are not active judges)
  • Minus active judges who recuse (in NCAA 3 active judges are not participating)
  • Plus any senior Third Circuit judges who (a) sat on the original panel and (b) elected to participate in the en banc (in NCAA 2 senior judges are participating)

Senior Third Circuit judges who did not sit on the panel are not eligible to participate in the en banc, period. (Several other circuits allow this.) Visiting judges (judges who are not Third Circuit judges) are not eligible to participate in en banc rehearing, period, even if they did sit on the panel, IOP 9.5.3.

If rehearing en banc has been granted, how can you tell which judges are participating? How can you tell if active judges recused, or if senior judges on the panel opted in? The order granting rehearing en banc. It gives a list of judges, and that identifies the judges who are participating in the en banc rehearing of that case as of that date. (After this, subtractions would occur only if a judge leaves the court or belatedly recuses; additions would occur only if a judge joins the court before en banc oral argument).

Which judges get a vote on whether to grant en banc rehearing in the first place? It’s the same as who gets to participate except that no senior judges get to vote, even if they sat on the panel.


Okay, so much for the basics. Now, let’s look at some other potential sources of confusion. First, some issues about the vote on whether to grant rehearing:

What if there is a tie about whether to grant rehearing en banc? It takes a majority to grant rehearing, so a tie means rehearing en banc is denied. That in turn means a three-judge panel decides the appeal, so, if there already is a panel opinion, it remains in force.

Is en banc rehearing ever granted before there is a panel ruling? Yes. The court can grant rehearing en banc any time it wants, and it doesn’t have to wait for a party to ask. In cases where en banc rehearing is granted, it is not unusual in recent years for the Third Circuit to do so before the panel issues any opinion.

Which majority is required to grant rehearing en banc — all active judges, or only participating active judges? If judges recuse, does that reduce the number of votes needed to grant rehearing? Yes. 3d Cir. LAR 35.3 says, “For purposes of determining the majority number necessary to grant a petition for rehearing [see 28 USC 46(d)], all circuit judges currently in regular active service who are not disqualified will be counted.” (IOP 9.5.3 is to the same effect.) That means you only need a majority of non-disqualified judges. (But be aware that a very authoritative secondary source cites R. 35.3 to mean that the Third Circuit will not grant rehearing en banc unless a majority of active judges are not disqualified).

And here are some issues for cases where rehearing en banc has been granted:

If en banc rehearing is granted, what happens to the panel decision? It is vacated when rehearing is granted, so it’s like it never existed. En banc opinions often do not discuss prior panel opinions.

What if there is a tie by the en banc court about whether to affirm or reverse?  An en banc tie leaves the district court’s ruling in place. It does not reinstate the panel opinion. It’s like the appeal never happened.

If a judge takes senior status while the en banc case is pending, does s/he still get a vote? Yes. If a judge voted on whether to grant rehearing en banc, that judge gets to participate in the entire rehearing even if s/he goes senior.

If a new judge joins the court while en banc rehearing is pending, does the judge get a vote? If this situation is addressed by the rules, I can’t find it, which is odd. This is a timely question, since it is very likely that Judge Restrepo will join the Court before either Chavez or NCAA are submitted, and possible he’ll be confirmed before Dennis or Langbord are decided (they were argued yesterday). I’ll update this answer if I’m able to find out more. Any commenter insight?

UPDATE: At least since 2010, new CA3 judges always participate in en banc cases if they are commissioned before the en banc oral argument (like Shwartz in Rojas and Caraballo-Rodriguez), but never if they are commissioned after oral argument (like Krause in Katzin and Flores-Mejia, like Shwartz in Quinn and Morrow, and like Vanaskie and Greenaway in Rigas and Puleo). So it’s a good bet that Restrepo will participate in Chavez (set for argument in February) and NCAA.

If all this makes your head spin, just be glad we’re not wading back into the recent thorny questions about how to tell the difference between an en banc plurality vs. a majority and whether it matters.


New opinion — a consumer procedural win, plus a new en banc grant

Leyse v. Bank of America — civil consumer — reversal — Fuentes

A consumer sued Bank of America, alleging that robo-calls used to market credit cards violated the Telephone Consumer Protection Act. (Who knew? A law bars any person from initiating any telephone call to residential phone using a prerecorded voice without prior consent or an exemption.) The district court dismissed, holding that the plaintiff lacked statutory standing because the call was meant for his roommate. Today, the Third Circuit reversed, holding that residents who receive the calls fall within the statute’s zone of interests.

Joining Fuentes were Sloviter and Roth. Arguing counsel were Todd Bank (whose website bills him as “The ‘Annoyance’ Lawyer”) for the consumer and former Asst. to the Solicitor General Joseph Palmore of Morrison & Foerster for the bank.


Also today, the Court granted en banc rehearing in NCAA v. Governor of NJ (vacated panel opinion here, my summary here). Senior-judge panel-members Rendell and Barry both will participate. [EDIT: Also of note, McKee, Chagares, and Shwartz are not participating]

Good coverage of the rehearing petition (quoting me — lucky for me he left out the part where I predicted rehearing would be denied!) by Zachary Zagger on Law360.com is here.

An en banc argument pitting Paul Clement against Ted Olson? Gonna be a big day at the Jim Byrne.

New opinion — Court revives major post-9/11 civil rights suit

Hassan v. City of New York — civil rights — reversal — Ambro

Here’s how today’s opinion begins (cites and parentheticals omitted):

Plaintiffs appeal the dismissal of their civil-rights suit
against the City of New York. They claim to be
targets of a wide-ranging surveillance program that the New
York City Police Department began in the
wake of the September 11, 2001 terrorist attacks. Plaintiffs allege that the Program is based on the
false and stigmatizing premise that Muslim religious identity
“is a permissible proxy for criminality, and that Muslim
individuals, businesses, and institutions can therefore be
subject to pervasive surveillance not visited upon individuals,
businesses, and institutions of any other religious faith or the
public at large.” They bring this lawsuit “to affirm the principle
that individuals may not be singled out for intrusive
investigation and pervasive surveillance that cause them
continuing harm simply because they profess a certain

In its narrowest form, this appeal raises two questions:
Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in
federal court to vindicate their religious-liberty and equalprotection
rights? If so, taking Plaintiffs’ non-conclusory
allegations as true, have they stated valid claims under the
First and Fourteenth Amendments to our Constitution? Both
of these questions, which we answer yes, seem
straightforward enough. Lurking beneath the surface,
however, are questions about equality, religious liberty, the
role of courts in safeguarding our Constitution, and the
protection of our civil liberties and rights equally during
wartime and in peace.

And the conclusion:

The allegations in Plaintiffs’ Complaint tell a story in
which there is standing to complain and which present
constitutional concerns that must be addressed and, if true,
redressed. Our job is judicial. We “can apply only law, and must abide by the Constitution, or [we] cease to be civil
courts and become instruments of [police] policy.”
Korematsu, 323 U.S. at 247 (Jackson, J., dissenting).
We believe that statement of Justice Jackson to be on
the right side of history, and for a majority of us in quiet
times it remains so . . . until the next time there is the fear of a
few who cannot be sorted out easily from the many. Even
when we narrow the many to a class or group, that
narrowing—here to those affiliated with a major worldwide
religion—is not near enough under our Constitution. “[T]o
infer that examples of individual disloyalty prove group
disloyalty and justify discriminatory action against the entire
group is to deny that under our system of law individual guilt
is the sole basis for deprivation of rights.” Id. at 240
(Murphy, J., dissenting).
What occurs here in one guise is not new. We have
been down similar roads before. Jewish-Americans during
the Red Scare, African-Americans during the Civil Rights
Movement, and Japanese-Americans during World War II are
examples that readily spring to mind. We are left to wonder
why we cannot see with foresight what we see so clearly with
hindsight—that “[l]oyalty is a matter of the heart and mind[,]
not race, creed, or color.” Ex parte Mitsuye Endo, 323 U.S.
283, 302 (1944).
We reverse and remand for further proceedings
consistent with this opinion.

Obviously a sweeping and important opinion. I’m looking forward to reading it with care, but I’ve got a Third Circuit opening brief due today so I’ll have to wait.

Joining Ambro were Fuentes and Roth; Roth issued a short concurrence. Arguing counsel were Baher Azmy of the Center for Constitutional Rights for the plaintiffs and Peter Farrell for the city,

New opinion — Remand in a “Kafkaesque” commitment case

US v. Foy — civil commitment / jurisdiction — remand — Greenberg

The Third Circuit usually posts new published opinions on its website around 12:25 p.m., but occasionally it posts them late in the day, and it did so today. It’s an odd, complicated, and disturbing case and I’m not sure I can do it justice now, but here’s the gist.

Way back in 2003, Joaquin Foy was charged with a crime, but prior to trial he was found incompetent and the charges were dropped but he was federally committed. By 2009 doctors concluded it was safe to release him but he has continued to be detained because he won’t  promise to take his meds if released! Foy contends that continuing to hold him violates federal law, resulting in a tangle of litigation in 3 different federal courts. Relevant to today’s appeal, Foy filed a pro se motion to vacate judgment under Rule 60 in EDPA, the district court denied it, and in 2011 the Third Circuit appointed counsel and ordered briefing. Today, 4 years later but without oral argument, a divided panel vacated the district court’s denial and remanded for the district court to decide whether to transfer or dismiss it.

Joining Greenberg was Greenaway. Krause dissented in part, describing the case as “nothing short of Kafkaesque and cries out to be heard by some court.” The case was decided without argument.

More criticism of the Restrepo-confirmation delay

The Los Angeles Times has this story today (headline: “Republican Senate accused of ‘slow walking’ Obama’s judicial nominees”) that features the delay in confirming Judge Restrepo to the Third Circuit.

Yesterday, Paul Gordon of People for the American Way posted this informative analysis of the current delays in federal judicial confirmations, also featuring Restrepo. One telling passage (emphasis in original):

Failing to confirm judges is not at all the norm even when the Senate and the White House are held by different parties.  A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms.  A week after those elections, Senator Patrick Leahy – who was about to become chairman of the Judiciary Committee – criticized Republicans for blocking votes on more than a dozen of Bush’s qualified nominees.  Partisanship took a back seat to responsible governing.

So in 2007, Leahy and new Majority Leader Harry Reid worked together to make sure the Judiciary Committee and full Senate fulfilled its constitutional responsibilities.  During those two years, the Senate vetted and confirmed 68 of Bush’s circuit and district court nominees.  In fact, the Democratic Senate had already confirmed 29 of Bush’s judges by this same point in the year (October 1 of 2007), a number that will increase to 33 over the weekend.  In stark contrast, the McConnell Senate has so far confirmed only six Obama judges. No matter how you look at it, 33 ≠ 6.

It’s becoming increasingly clear that, when Senator Toomey’s office said way back in May that he was confident Restrepo would be confirmed “by year’s end,” Toomey knew already the Third Circuit would suffer from this inexplicable delay.

New opinions — Rule 58 in the ECF age, and a Tonnage Clause case

Witasick v. Minnesota Mutual — civil — affirmed — Nygaard

Published Third Circuit opinions involving pro se litigants are fairly rare. Pro se civil litigants? Quite rare. Pro se civil litigants with felony records who are allowed to give oral argument?* New to me.

Now, if the pro se party won the case,that would be rarest of all, but it wasn’t to be. He did pick up some style points on a procedural issue, though.

Attorney Kevin Witasick had insurance coverage. After a coverage dispute, the parties settled and Witasick signed a covenant not to sue. At the same time, Witasick was prosecuted and convicted of fraud and related charges, and an insurer’s employee testified against him. Witasick then initiated the current case by suing the insurance companies. The district court dismissed the suit based on the settlement agreement, and today the Third Circuit affirmed.

Although the merits were a slam-dunk, there is an interesting procedural wrinkle that federal practitioners should note.

The court held that Witasick’s notice of appeal was timely, even though it was filed far more than 30 days after the district-court opinion dismissing his claims, because the district court did not set out the dismissal in a separate document, per FRCivP 58. While there was an ECF docket entry stating that the case terminated, and the court today agreed that ECF docket entries could satisfy Rule 58, the docket entry here did not because it did not give the basis for termination (and maybe because it was a mere clerical notation, although the opinion is less clear here). The court said that text orders usually would satisfy Rule 58, while utility events and minute entries cannot because they are not orders and are not signed by a judge. While that part looks like dicta, this is the first case I’ve seen grappling with how Rule 58 applies in the age of ECF.

Joining Nygaard are Fuentes and Greenaway. Arguing counsel were Kevin Witasick for himself and Jacqueline Herring for the insurers.

* He was allowed to do oral argument, but then he didn’t show. I should know — I argued the case that was supposed to be up second that morning, but the panel had us go first in case he arrived late.


Maher Terminals v. Port Authority of NY & NJ — Tonnage Clause — affirmed — Fisher

Maybe I overslept the day we covered the Tonnage Clause in con law. If you’re as sadly uninformed as I, the Tonnage Clause of the US Constitution (article I, section 10, clause 3) bars states from “lay[ing] any Duty of Tonnage” without Congress’s say-so.

Today, a divided Third Circuit panel held that a marine terminal operator challenging its rent cannot state a claim under the Tonnage Clause because said clause’s zone of interests is limited to injuries to a vessel as a vehicle of commerce. To its great credit, the majority opinion smoothly uses both “unmoor” and “[a]nchoring,” without going overboard with nautical whimsy.

Joining Fisher were Shwartz in full and Jordan in part. Dissenting in part, Jordan disagreed that the plaintiff failed to state a Tonnage Act claim. Might be a plausible case for cert. Arguing counsel were former Coast Guard captain Lawrence Kiern of Winston & Strawn for the appellant and Peter Isakoff of Weil Gotshal for the appellees.

New opinions — a criminal-sentencing reversal and a close look at stays pending appeal

US v. Nagle — criminal — reversal — Fisher

Two co-owners of a construction business were convicted of fraud and other charges. Apparently they were non-minority contractors who collaborated with a minority contractor; the minority business would bid on contracts and then give the defendants all the work. Both defendants challenged the sentencing court’s loss calculation, and today the Third Circuit vacated their sentences and reversed. The court held that the proper loss amount was not the face value of the work contracts: the fair market value of the services provided by the defendants had to be subtracted when calculating the loss. The court also rejected the government’s argument that the 10-level departures the defendants received rendered the loss-calculation error harmless.

Joining Fisher were Roth and Hardiman in part. Hardiman briefly concurred in the judgment in part. Arguing counsel were Ellen Brotman of Griesing Law for one defendant, William Kent for the other, and Bruce Bandler and Jenny Ellickson for the government.


In re: Revel AC — procedure, bankruptcy — reversal — Ambro

The Third Circuit today explained its prior-issued ruling reversing a district court’s denial of a request for a stay pending appeal. The case arises out of the Revel AC casino bankruptcy. In his majority opinion, Judge Ambro began, “We seldom focus on how to balance the four factors that determine whether to grant a stay pending appeal despite the practical and legal importance of those procedural standstills. So we take this opportunity to do just that.” (Entertaining mid-stringcite footnote: “Yes, we realize this is the same Circuit Court in the same year. Read on and realize that we are not immune from internal tensions in our opinions.”)

Joining Ambro was Krause; Shwartz dissented. Both opinions are strong. Arguing counsel were Jeffrey Cooper for the appellant and Jason Zakia for the debtor.

New opinions — a successful challenge to PA’s emissions plan, plus an arbitration-issue waiver

National Parks Conservation Ass’n v. U.S. E.P.A. — agency — vacate in part — Vanaskie

Three national environmental groups petitioned the Third Circuit to review the EPA’s approval under the Clean Air Act of Pennsylvania’s decision not to do more to limit emissions that cause atmospheric haze in national parks and wilderness areas. Today, the environmental groups won a partial victory when the court vacated the part of the EPA’s ruling that approved Pennsylvania’s analysis of “best available retrofit technology.” The court ruled that Pennsylvania’s analysis suffered from multiple flaws and that the EPA failed to give a sufficient explanation for overlooking those flaws.

Joining Vanaskie were Ambro and Shwartz. Arguing counsel were Charles McPhedran of Earthjustice for the environmental groups, Kate Bowers for the EPA, Robert Reiley for an intervenor state agency, and Chet Thompson for an intervenor power company.  Coverage of the oral argument here.

Goldman Sachs v. Athena Venture Partners — arbitration — reversal — Fuentes

Goldman Sachs pitched an investment to Athena using terms like terrific, low risk, and very safe. Athena invested $5 million and lost about $1.4 million. Athena initiated arbitration against Goldman, and, after a nine-day hearing, an arbitration panel ruled for Goldman.

During the arbitration, it was disclosed to the parties that one of the arbitration panel members had been charged with unauthorized practice of law. At the time, the panelist said it was a one-time oversight. Neither side investigated or objected at the time, but after the panel’s ruling Athena investigated and concluded that the panel member’s alleged misconduct was far more serious than disclosed. Athena moved to vacate the award, and the district court granted the motion. Today, the Third Circuit reversed, holding that Athena waived its objection because it should have known the full story before it lost the arbitration. The opinion criticized FINRA, the arbitration organization, for failing to catch the issues with the panel member.

Joining Fuentes were Ambro and Nygaard. Arguing counsel were Edward Posner of Drinker Biddle for Goldman and David Moffitt (his name is misspelled in the slip op.) of Saul Ewing for Athena.

Filing CA3 emergency motions during the court closure

Starting today, the Third Circuit is closed through September 29 due to the Pope’s visit to Philadelphia. The court posted instructions on its website for filing emergency motions during the closure:

The Clerk’s Office Will Close Thursday, September 24 And Will Reopen On Tuesday, September 29, 2015. For Emergency Motions, I.E. Motions Requiring Action Before Thursday, October 1, During This Time Call 267-299-4903 Or 267-299-4904 And Leave A Message Detailing The Nature Of The Emergency And Leaving A Contact Number So That The Attorney On Duty Can Respond. No Administrative Stays Will Be Issued In Immigration Cases From September 24 Until September 29. If An Emergency Stay Is Needed In An Immigration Matter, Please Call The Emergency Number. (See Below Closure Notice Under News & Announcements For Additional Information.)

An aside for my fellow typography nerds: my theory is that this was written by a clerk who is bitter about having to read lawyers’ briefs filled with hard-to-read Title Caps Headings and seized this opportunity for a little revenge.

Court grants en banc rehearing on applying first-filed rule to dismiss with prejudice

The Third Circuit just granted rehearing en banc in Chavez v. Dole Food.

The now-vacated panel opinion, upholding dismissal with prejudice of a civil suit based on the first-filed rule, is here, my summary is here. The panel was split, with Nygaard joined by Greenaway while Fuentes dissented.

Here’s the introduction from the panel dissent (I’ve omitted two footnotes):

More than two hundred plantation workers brought
this suit alleging their employers and certain chemical
companies knowingly exposed them to toxic pesticides over a
period of many years. As a result, they say, they have injured
kidneys, are infertile, and are at heightened risk of cancer.
Twenty years after first bringing suit, no court has heard the
merits of their claims. Because the Louisiana court dismissed
on procedural grounds, the Delaware District Court’s
dismissal of the plaintiffs’ claims—with prejudice—
effectively ends the plaintiffs’ lawsuit. The majority’s
affirmance of that decision, i.e., the dismissal with prejudice
of a duplicate claim filed in a second court, is not supported
by our caselaw and is contrary to the decisions of the only
other Courts of Appeals to have addressed the issue.

I agree with the majority opinion that the first-filed
rule applied to the plaintiffs’ successive filing in Delaware,
and, as such, that the District Court should have given the
Louisiana suit priority. But I do not agree that the first-filed
rule is a basis to terminate a claim that otherwise may be
prosecuted. That is not something we have ever held before; it
is contrary to our positions on successive litigation and
concurrent litigation in other contexts; and it is inappropriate
in light of the Supreme Court’s command that we must
adjudicate properly presented cases not heard elsewhere on
the merits. As our sister circuits have done in like cases, I
would vacate and remand for further proceedings.

Today’s order notes that Nygaard exercised his IOP 9.6.4 option as a senior judge who sat on the panel to sit on the en banc court.

My thanks to an alert reader from New York for emailing to alert me just minutes after the order posted to the court’s website.

Update: today’s grant makes 3 pending en banc cases, with Chavez joining Dennis (a capital-habeas appeal) and Langbord (the double-eagle-coins appeal).

New opinions — IDEA statute of limitations and 1983 favorable termination

G.L. v. Ligonier Valley School Dist. — education & disability law — affirmance — Krause

Judge Cheryl Krause, confirmed to the Third Circuit just last summer, already looks like a rising star. Her first opinions —  this prisoner civil-rights opinion in Young, this bar reciprocity opinion in NAAMJP, and especially this bankruptcy-mootness concurrence in In re: ONE2ONE Communications  — have been powerhouse efforts. Clear, thorough, and strong: Supreme-Court-shortlist caliber work, I’m starting to believe.

Today, the Court issued the latest Krause opinion, and it’s another tour de force. The case arose under the Individuals With Disabilities Act, and the appeal centered on how the IDEA’s confusingly drafted statute-of-limitations discovery rule works. The plaintiffs here, the school district, and the federal Department of Education as amicus each took a different position. After a careful analysis (the slip opinion runs 52 pages) of this issue of first circuit impression, the court sided with the government, holding that due process complaints under the IDEA must be filed within two years after the reasonable discovery of an injury.

Joining Krause were McKee and Greenaway. Arguing counsel were Charles Jelley for the students and parent, Christina Lane for the district, and Jennifer Rosen Valverde (her name is misspelled in the slip op.) of the Rutgers law school Special Education Clinic for amici. The opinion thanked the organizations led by the Rutgers clinic for “their helpful perspective and excellent briefing and argument.”


Bronowicz v. Allegheny County — prisoner civil rights — partial reversal — Greenaway

In order to recover for wrongful imprisonment under 42 U.S.C. 1983, a former prisoner must show that his challenge  to his underlying was favorably terminated. Today, the Third Circuit held that a 1983 plaintiff satisfied the favorable termination requirement even though the prior order vacating his sentence did not expressly state that the sentence was illegal.

Joining Greenaway were Fisher and Jordan. Arguing counsel were Robert Owsiany for the former inmate, Virginia Scott for the County, and Caroline Liebenguth for three defendant probation officers.

Leahy: I hope Toomey will get a firm commitment to schedule a confirmation vote this week for Restrepo

Senator Patrick Leahy (D-Vt), ranking Democrat on the Senate Judiciary Committee, released this statement yesterday:

Last week, I spoke about Senate Republicans’ virtual shutdown of the judicial nominations process since they took over the majority.  Their refusal to respond to the urgent needs of our independent Third Branch is threatening to harm our justice system and rob the judiciary of outstanding public servants.

One glaring example of this harm is the unnecessary delay of Judge Luis Felipe Restrepo, who was nominated last year to fill an emergency vacancy on the U.S. Court of Appeals for the Third Circuit in Pennsylvania.  Judge Restrepo was unanimously confirmed two years ago by the Senate to serve as a district court judge.  During his tenure as both a Federal district court judge and as a Federal magistrate judge, he has presided over 56 trials that have gone to verdict or judgment.  He is superbly qualified, and I have heard no objection to his nomination.  Despite his outstanding credentials and experience, it took the Republican majority seven months just to schedule a hearing in the Judiciary Committee for this qualified nominee.

Judge Restrepo has bipartisan support from both Pennsylvania Senators, and was voted out of the Judiciary Committee unanimously by voice vote.  Once confirmed, Judge Restrepo will be the first Hispanic judge from Pennsylvania to ever serve on this court and only the second Hispanic judge to serve on the Third Circuit.  He has the strong endorsement of the non-partisan Hispanic National Bar Association.  At his confirmation hearing in June, Senator Toomey stated that “there is no question [Judge Restrepo] is a very well qualified candidate to serve on the Third Circuit.”  Senator Toomey described Judge Restrepo’s life story as “an American Dream” and recounted how Judge Restrepo came to the United States from Columbia and rose to the top of his profession by “virtue of his hard work, his intellect, his integrity.”  I could not agree more.

Given his remarkable credentials, wealth of experience, and strong bipartisan support, you would think the Senate would have confirmed Judge Restrepo months ago.  Instead, he was nominated for a judicial emergency vacancy back in November 2014, and for 10 months since his nomination, he has been denied a vote on his confirmation.  No Senate Democrat opposes a vote on his nomination.  The only ones who are holding up his nomination are the Senate Republicans.  I have heard Senator Toomey indicate his strong support and that he would like to see Judge Restrepo receive a vote.  I know Senator Toomey can be a fierce advocate for issues he cares passionately about, and I hope he will get a firm commitment from the Majority Leader to schedule a confirmation vote this week.

In addition to Judge Restrepo’s nomination, there are 12 other non-controversial judicial nominees pending on the Executive Calendar waiting for a vote.  All of them were approved by voice vote by the Judiciary Committee.  There is no reason for Republicans to block these nominees.  More than eight months into this new year, Republican leadership has allowed votes on just six judicial nominees.  By this time in 2007, when I was Chairman of the Judiciary Committee, we had confirmed 29 judges nominated by President Bush.  That is nearly five times more nominees than what this Republican Majority has accomplished so far this year.  Because of the Republicans’ virtual shutdown of the confirmation process, judicial vacancies have increased by more than 50 percent – from 43 to 67.  This is demonstrates an astounding neglect of the needs of our independent Third Branch.

Instead of confirming Judge Restrepo and the 12 other non-controversial judicial nominees on the Executive Calendar, Republicans are talking about another doomed vote on harmful legislation to block women’s health care choices.  Republicans had already forced a failed “show vote” to defund critical health services for women, spending two days on that unnecessary political exercise.  Although Senate Republicans campaigned last year on the promise that they would govern responsibly if they won the majority, they continue to prioritize divisive issues that play only to their political base and yield no results for the American people.

I am urging Republican leadership to reverse course.  Confirm Judge Luis Felipe Restrepo without further delay.  And then confirm the other 12 non-controversial judicial nominees pending on our Executive Calendar.


A juvenile strip-search postscript

Yesterday, as I posted here, the Third Circuit sided with a juvenile detention center that was sued for its practice of strip searching children.

Today in the news is this disturbing story from Texas about a 14 year-old boy named Ahmed. Ahmed made a homemade clock and brought it to school, but found himself arrested when the principal suspected his clock was a bomb, “despite the fact that the ninth grader repeatedly told both teachers and the police that his project was not, in fact, a weapon.” In a photo of him in handcuffs, you can see him wearing a NASA t-shirt, bless his nerdy little heart. As he later described, “I was taken to a juvenile detention center, where they searched me, they took fingerprints and mug shots of me, and they searched me until my parents came and I got to leave the building.”

I have no idea whether that Texas detention center has the same strip-search policy as the Lancaster County center. But imagining that boy, and all the other boys and girls like him, being strip searched, bend-over-and-cough, makes me sad.

New opinions — an en banc puzzler and an ERISA case

US v. Lewis (en banc) – criminal – reversal – Rendell

Today, an en banc majority – or is it a plurality? – held that an Alleyne error at Jermel Lewis’s sentencing was not harmless. Previously, a divided panel had come out the other way (Fisher and Chagares majority, Rendell dissent) — link to my post on the panel opinion is here, link to my recent analysis of the court’s en banc cases here. A concurring opinion would have held that the error was structural so that proof of harm should not be required, while a dissent argued that the error was harmless because the defense at trial and sentencing did not contest the underlying factual issue.

A strange feature of the case is that the judges disagree about whether the lead opinion speaks for a majority or a plurality, but no one clears it up. There are three opinions:

  • the lead opinion by Rendell,
  • an opinion by Smith “concurring,” which is joined by McKee, Ambro, and (perhaps surprisingly) Jordan, and
  • a dissent by Fisher, joined by Chagares and Hardiman.

Fisher’s dissent refers to the lead opinion, prominently and repeatedly, as “the plurality.” But Smith refers to the lead opinion throughout as “the majority.” If the 4 judges who joined Smith opinion also joined the lead opinion, then the lead opinion was a majority (10 of 13). The fact that Smith’s opinion was identified as “concurring,” not “concurring in the judgment,” suggests that’s the case, as does the fact that the Smith opinion calls the lead opinion a majority opinion.

But the dissenters have a point: in substance, it looks to me like the Smith 4 agree with Rendell on the outcome but reject her rationale, and also Smith never expressly says that he is joining the lead opinion. Without the Smith 4, the lead opinion would indeed be only a plurality (6 of 13).

Majority or plurality? I’m not sure. Does it matter? Do en banc pluralities bind future panels? Or does the Third Circuit follow Supreme Court practice, where the outcome-joining opinion resting on the narrowest ground is the one that is precedential? If so, is that Rendell’s or Smith’s? I’m not sure of the answers to these questions offhand, either. It’s unfortunate the court left this sort of confusion by failing to set straight who joined what.

Another interesting feature of the case is that, according to the dissent’s footnote 1, the rationale adopted by the lead opinion was one advanced not by the defendant, but by an en banc amicus. (The amicus is Amachi, Inc., a religious child-mentoring program started by former Philadelphia Mayor Goode, represented by a big-firm associate.) Fisher expresses concern that this “allows defendants to take the tack most expedient at any point in their appeal.” I doubt it: what sane appellate counsel would make strategy choices based on such far-fetched contingencies? CA3 grants rehearing in about 1 out of 1000 decided cases, and the odds of amicus jumping in for you in an en banc are lower still. However, I do suspect that Amachi’s visible victory here may well embolden future interested parties to get involved as en banc amici, which strikes me as a good thing.

Arguing counsel were Paul Hetznecker for Lewis, Robert Zauzmer for the government, and Michael Addis of Cravath for amicus.


Board of Trustees v. C&S Wholesale -– ERISA — affirmance — McKee

 The court decided an ERISA case today.

McKee was joined by Hardiman and Scirica. Arguing counsel were Thomas Hart for the appellant and Susan Hoffman for the appellee.

New opinions — a 2255 blockbuster, strip searches for 12-year-olds, and an antitrust case

US v. Ross – criminal 2255 – vacate denial and instruct to dismiss — Jordan

In a major ruling, the Third Circuit today issued an opinion that appears to mean that 28 U.S.C. § 2255 does not permit prisoners to challenge an illegal conviction and sentence if the defendant also was convicted on other counts resulting in equal or greater concurrent sentences. I suspect the opinion is incorrect.

The defendant here, Edward Ross, was convicted on numerous counts, one of them being possession of a machine gun in violation of 18 USC § 922(o). On that count, Ross was sentenced to 10 years in prison plus a $100 special assessment. Ross also received 10-year sentences on other 6 counts, with all 7 sentences to run concurrently.

As to the machine-gun-possession charge, the jury was not required to find that Ross knew the gun was a machine gun. (It seems at least possible he didn’t know: the gun in question was made to be semi-automatic, and had been converted to automatic by changing the firing pin, and it was found in Ross’s residence, not in use.) Six other circuits have held that knowledge that the gun was a machine gun is an element of the crime. Today’s opinion said, “Given the opportunity, we might join our sister circuits,” and Ross “may be right that the 922(o) conviction is unlawful.”

Ross’s trial lawyer did not object to the instruction, and his direct-appeal lawyer did not raise the issue either. In a 2255 motion, he argued that prior counsel were ineffective for failing to raise the machine-gun-knowledge issue. “Sounds like a winner,” I would have said.

After the district court denied relief on prejudice grounds, the government argued on appeal  (it is not clear from the opinion whether they made the argument below) that Ross’s challenge to the 922(o) conviction was not even cognizable under 2255. Today, the Third Circuit agreed, ruling that, even if Ross’s trial and appellate counsel performed deficiently and even if Ross were prejudiced, he still would not be entitled to relief because his claim fails a threshold “custody” requirement.

Here was the panel’s reasoning. First, “[t]he plain text of 2255 provides relief only to those prisoners who claim the right to be released from ‘custody.’” Second, the special assessment that Ross received as a result of the 922(o) conviction did not satisfy this “custody” requirement because it was not severe. Third, any collateral consequences resulting from the 922(o) conviction did not satisfy “custody” because Ross failed to show any consequences uniquely attributable to that conviction. Thus, the court held that the relief Ross sought was not cognizable under 2255, and it vacated the district court’s order denying relief and directed the court to dismiss instead.

I have real doubts about this reasoning. Here is what 2255 says:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Here, the court reasoned as if 2255 said that a prisoner’s claims must each challenge his custody. But what 2255 says is that a prisoner in custody may move to vacate or correct his sentence. Ross is unquestionably a prisoner in custody on his federal sentence. So, at least as I read it, the text of 2255 does not support the reasoning in the opinion. And the opinion does not cite any previous case for the proposition that a prisoner who’s in custody can have his 2255 dismissed because his claims do not also meet a custody requirement.

So the Ross opinion strikes me as wrong — badly wrong, even — and warranting rehearing. But I haven’t read the briefs or pulled the cases cited, and today’s ruling was sought by top-flight AUSAs and embraced by 3 smart federal appellate judges, so maybe I’m missing something big.

Joining Jordan were Fisher and Shwartz. Arguing counsel were Penn Law student John McClam (with 3 Dechert lawyers on the brief, two of whom recently clerked for Third Circuit judges) for Ross and Robert Zauzmer for the government.


J.B. v. Fassnacht – juvenile civil rights – reversal – Fuentes

A 12-year-old was accused of doing something illegal and was ordered to be detained, analogous to an adult who is arrested and taken to jail before trial. The juvenile detention center where he was taken had a practice of strip-searching every child during intake. So the 12-year-old was put behind a shower curtain, and then, observed by an officer, he was “asked to turn around, drop his pants and underwear, bend over, spread his buttocks, and cough.”

No contraband was found. The accusation against the 12-year-old was later resolved when he agreed to write a letter saying he was sorry.

In 2011, the Supreme Court in Florence held that it was permissible to strip-search all arrestees before admitting them to a jail’s general population. But Florence was a case about strip-searching adults. Today, the Third Circuit held that Florence applies to juvenile, too.

Has a 12-year-old entered juvenile custody smuggling contraband in his or her rectum, ever? The opinion–oddly, in my view–does not say. Isn’t that relevant to whether these automatic, uniquely intrusive searches of children are warranted?

Instead, the opinion relies upon “the realities of detention, irrespective of age,” a study indicating that elementary-aged children are being recruited into gangs, the observation that “less invasive searches may leave undetected markings on the body indicating self mutilation or potential abuse in the home,” and the like, none of which strike me as compelling rationales for forcing 12-year-olds to strip naked for officers and expose their rectums.

Joining Fuentes were Nygaard and Roth. Arguing counsel were David MacMain for the 12-year-old and Kevin Allen for the defendants.


In re: Chocolate Confectionary Antitrust Litigation — antitrust — affirmance — Fisher

The Third Circuit affirmed the district court’s grant of summary judgment in favor of Hershey, Nestle, and Mars in this antitrust appeal, holding that the evidence was insufficient to create a reasonable inference of a price-fixing conspiracy.

Joining Fisher were Hardiman and Roth. Arguing counsel were Steve Shadowen and Laddie Montague Jr. for the appellants and William Cavanaugh Jr, David Marx, and Peter Moll for the chocolate makers.

New opinions — a capital habeas reversal and a bankruptcy affirmance

Saranchak v. Secretary — capital habeas — reversal in part — Smith

The Third Circuit today ruled that a PA death-row inmate was entitled to a new sentencing hearing due to ineffective assistance of counsel. The court concluded that the PA Supreme Court’s denial of penalty-phase relief was unreasonable and based on a factual premise that was clearly false. The court expressly relied on the ABA Guidelines to assess counsel’s performance. It found that the state court’s prejudice ruling also was unreasonable because it misstated the standard and failed to discuss most of the relevant evidence. The court also affirmed the denial of guilt-phase relief.

Joining Smith were Vanaskie and Roth. Arguing counsel were Stu Lev of the Federal Community Defender for the petitioner and Jennifer Peterson of PA AG for the state.


In re: ICL Holding Co. — bankruptcy — affirmance — Ambro

When a debtor files for bankruptcy and undergoes reorganization, there often aren’t enough assets to pay off all the debts, and the bankruptcy rules provide a clear hierarchy for which creditors get payed first. But 11 U.S.C. 363 also lets a debtor sell its assets outside of the bankruptcy reorganization. When it does, must any funds produced by the sale be distributed using the same hierarchy?

In a lucid opinion issued today, the Third Circuit upheld a 363 sale, rejecting arguments by the government that the sale upset bankruptcy’s priority rules.

Joining Ambro were Fuentes and Roth. Arguing counsel were Thomas Clark for the government and Anthony Clark of Skadden Arps for the debtor and purchasers,

New opinion — an ERISA case

N.J. Brain & Spine v. Aetna — ERISA — reversal — Chagares

The Third Circuit decided an ERISA case today. The opinion was only 9 pages long, making this one of my favorite ERISA opinions ever. (Oh, okay. The court held that a patient’s assignment of benefits to her healthcare provider conferred standing on the provider to sue for those benefits under ERISA.)

Joining Chagares were Hardiman and Shwartz. Arguing counsel were Eric Katz of Mazie Slater for the appellant, Edward Wardell of Connell Foley for the appellee, and Brian Hufford of Zuckerman Spaeder for amicus.

New opinions — David beats Goliath, plus a divided disability-rights ruling

Brand Marketing v. Intertek Testing — civil — affirmance — Hardiman

This appeal is a David vs. Goliath story. David wins.

Our David is David Brand, who founded a company — a “small” company, the opinion tells us up front — that makes heaters. Our Goliath is Intertek, a company — “an international product-testing company with more than 35,000 employees” — that Brand hired to test whether his heaters met U.S. safety standards. Intertek said the heaters passed, but in fact should not have, and, when the problems with the heaters came to light, the company that had been selling the heaters sued Brand. Brand lost and owed over $600,00.

So David (Brand) sued Goliath (Intertek). Goliath did what Goliaths do: after it bought the judgment that Brand owed to his former seller, Intertek then “aggressively tried to collect its judgment in the weeks leading up to trial, attempting, among other tactics, to transfer the judgment from the company to David Brand personally.” (Those facts don’t seem relevant to the issues on appeal, but perhaps were included for anyone who missed small company/big company intro.)

After a trial, the jury ruled for Brand for over $6 million, including $5 million in punitives. Intertek appealed. On appeal, Intertek was represented by Bill Hangley of Hangley Aronchick, who is widely regarded as one of the top lawyers in the state. Brand was represented by a trial lawyer for the far smaller Pittsburgh firm of Meyers Evans.

Today, the Third Circuit affirmed. Among the court’s holdings are that Pennsylvania’s economic-loss doctrine did not bar Brand’s claim for negligent misrepresentation and that such misrepresentation occurred when Intertek prepared a test data sheet that it knew a third party would receive and rely on. The court also upheld the jury’s $5 million punitive-damages award.

Joining Hardiman was Roth, as well as Fisher in part. Fisher dissented on the issue of whether the evidence was sufficient to support the punitive-damages instruction. Arguing counsel were Brendan Lupetin for Brand and William Hangley for Intertek.

So David won this round too, but, given the panel split, the caliber of the losing party’s counsel, and the Supreme Court’s interest in policing punitives, I suspect the fight may not be done yet.


D.M. v. N.J. Dep’t of Educ. — disability & education — remand — Fisher

This appeal arises from a suit under the Individuals with Disabilities Education Act, brought on behalf of a student who wanted to continued attending certain classes despite a state ruling that the school was not authorized to provide those classes. The IDEA has a provision, the so-called “stay put” rule, that says (roughly) that IDEA litigants get to stay in their current education placement until the suit is decided. The key issue in this appeal is whether the stay-put rule applies, and the panel majority ruled that it did.

Joining Fisher was Jordan; Shwartz dissented. The legal argument is pretty evenly matched, but Fisher wins the typography battle hands down: his cites are italicized, Shwartz’s are underlined, to the horror of Butterick devotees everywhere. Arguing counsel were Jennifer McGruther for the state and Vito Gagliardi, Jr. for the student.

A Third Circuit bar member allegedly sent “sickening” messages from his government-email account; is that grounds for circuit discipline?

At 4:23 p.m. this past Friday afternoon, as the Labor Day holiday weekend began and few were paying attention to the news, Philadelphia District Attorney Seth Williams released a statement announcing that he would not fire the three lawyers in his office implicated in the Porngate scandal. Instead, the statement said, the 3 lawyers would undergo “sensitivity training.”

The most prominent of the three — and a member of the Third Circuit bar — is Frank Fina. Fina came to the DA’s office from the state Attorney General’s office, and it was while working in that office that he sent and received the emails. Here is how Fina was described in a well-reported Philadelphia Magazine article (link):

Fina was the star prosecutor under Tom Corbett — the guy who made the governor’s career, in fact, by taking on political corruption in Harrisburg and then sending Sandusky away for the rest of his life. Fina hates politicians in general and corrupt ones in particular; he put House Speakers John Perzel and Bill DeWeese, among others, in prison. Fina takes a special pride in how loathed he remains in the state capital, and his approach to skimming the top off Harrisburg’s political elite is infamous: Secretaries and other minions were often brought to tears by Fina or his investigators, who threatened them with jail if they didn’t rat on their bosses. Balls to the wall — that’s Fina’s style. And an atmosphere Fina and his fellow gunslingers called “fuck fuck” reigned in the office. It meant there were no holds barred on anybody who worked there — they could get busted or teased or ridiculed about anything.

Back to those emails. In the media coverage I’ve seen, some of the descriptions of been pretty bland, others more vivid, but nothing I’d read prepared me for what I saw when I actually looked at them online. Even in grainy black and white, it was disturbing. The Philadelphia Daily News called reviewing the Porngate emails “sickening.” (I strongly recommend against it, they are filled with graphic pornographic and offensive content, but, if you need to see them for yourself, the link is here.)

On a Thursday afternoon from his state account, Fina allegedly sent an email with the subject line  “FW: New Office Motivation Policy Posters,”:


One of the attached images — I’m not re-posting them here — graphically shows a young woman performing oral sex on a man next to a desk. The caption reads: “PERFORMANCE: Monthly performance evaluations are mandatory for all secretarial staff.” Another is a woman, nude from the waist down, kneeling on the floor and performing oral sex on a man seated at a desk. The caption reads: “DEVOTION: Making your boss happy is your only job.”

Fina allegedly sent this email to two subordinates, agents in the AG’s office. Governor Wolf recently fired one of them for receiving this message and others.

And it’s not just pornography. Here’s one of many photos attached to an email (subject line “RE: Need Motivation for the Weekend?”) that Fina allegedly sent to an outside attorney from his official email account during business hours:


If a high-level, high-profile city law-enforcement official did all that in his last government job, is the problem fixed by sending him to sensitivity training? The president of Philadelphia NOW doesn’t think so: “They get to keep their jobs and their salaries,” she said. “And we get to be demeaned.”

But this is a Third Circuit blog, so what’s it all got to do with the Third Circuit? Well, since 11/26/2001, Fina has been a member of the Third Circuit bar. He appeared for the AG’s office in several Third Circuit cases opened between 2000 and 2003: Fahlfeder v. Varner, 00-2227: Saranchak v. Horn, 00-9009; Gibbs v. Frank, 02-3924, Wenger v. Frank, 03-3014; and Eak v. Johnson, 03-4708. According to PACER, he has not appeared since.

So here’s the question: if Fina did what he’s accused of, did he violate the circuit’s disciplinary rules? Is he at risk of professional discipline by the Third Circuit? Let’s look at the rules.

First, Rule 2.1(b) authorizes circuit discipline  for “discipline, including disbarment or suspension, by another court.” Pennsylvania’s Rule of Ethical Conduct 8.4(e), in turn, provide that it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice.” Could what Fina did here qualify? Maybe. The fact that he was and is a high-profile senior law-enforcement official could weigh against him here.

Another potential basis for discipline is circuit disciplinary Rule 2.1(e), which says that a member may be disciplined for “any other conduct unbecoming a member of the bar of this Court.” Is what Fina allegedly did conduct unbecoming a member of the Third Circuit bar? Again, I don’t know.

But I wonder if the District Attorney’s refusal to more seriously punish Fina will lead the Third Circuit to take a closer look at that question.


UPDATE: The Legal Intelligencer just posted an article headlined, “Williams Could Face Fallout From Porngate Prosecutors,” which asserts that the D.A.’s decision not to fire the prosecutors “will likely come back to haunt Williams if he decides to run for statewide office.”

New opinion — reversing summary judgment in a prisoner civil-rights case

Young v. Martin — prisoner civil rights — reversal — Krause

The Third Circuit today reversed a district court ruling granting summary judgment against a prisoner alleging that his Eighth Amendment rights were violated. The opinion’s introduction gives this cogent summary:

Leonard G. Young, Jr., a Pennsylvania prisoner with a long history of mental illness, filed suit alleging that Appellees-Defendants1 violated his Eighth Amendment rights by securing him in a four-point restraint chair, naked, for fourteen hours, although he did not pose a threat to himself or others. Because we agree with Young that the District Court erred as a matter of law in granting summary judgment against him, we will vacate the judgment and remand for further proceedings.

The opinion also contains a significant discussion of a recent DOJ report on Pennsylvania’s misuse of solitary confinement on prisoners with serious mental illness or intellectual disability.

Joining Krause were McKee and Greenaway. Arguing counsel were Robert Ridge for the prisoner and Kemal Mericli for the AG.

New opinion — divided panel affirms summary judgment against teacher fired for anti-student blog posts

Munroe v. Central Bucks School Dist. — First Amendment — affirmance — Cowen

If you don’t remember the name, you might remember the facts: Nathalie Munroe was a school teacher who became national news when she was fired for referring to her students in blog posts as “the jerk,” “an obnoxious kid,” “utterly loathsome,” and the like. After she was fired, she sued the district, claiming that her speech was protected by the First Amendment. The district court granted summary judgment against her, and today a divided Third Circuit panel affirmed, holding that her speech was not constitutionally protected.

Joining Cowen was Restani by designation, with Ambro dissenting. That division — a senior judge and a judge sitting by designation against an active judge — suggests the odds of rehearing en banc are higher than normal. Arguing counsel were Stanley Cheiken for the fired teacher and appellate lawyer Kimberly Boyer-Cohen of Marshall Dennehey for the district.

ECF problems for Windows 10 users, and solutions

Howard Bashman posted this at How Appealing last night:

Is the current method of federal appellate electronic filing becoming technologically obsolete? Whenever I try to discuss technology at the level required by this post, I quickly reveal my own ignorance. With that disclosure out of the way, let me sound a warning for those who may someday soon attempt their first federal appellate electronic filing after having upgraded to Windows 10.

The federal appellate CM/ECF electronic filing system requires a web browser with Java installed to operate. Microsoft’s new Windows 10 browser, known as Edge, does not support Java. And Google Chrome also recently stopped supporting Java. That does still leave the option of using the Firefox browser, which is what I used to e-file the Reply Brief that I filed today in the U.S. Court of Appeals for the Third Circuit. But that was after more than a few anxious moments wondering why none of the previous ways that I had accomplished federal appellate e-filings in the past was working.

Before the Windows 10 upgrade, I had used Internet Explorer to accomplish my CM/ECF federal appellate filings, which was one of the rare times that I would use that web browser. Microsoft Edge purports to allow the user to open a web page in Internet Explorer, but that option did not allow me to launch the CM/ECF application earlier today on my desktop computer running Windows 10.

If readers have encountered these or other recent difficulties with federal appellate e-filing, or have discovered solutions that haven’t yet occurred to me, please feel free to send along your experiences via email and I will gladly share points of general interest with this blog’s readers.

I confirm that Howard’s solution — using the Firefox browser — still works for CA3 ECF filing. If you don’t have Firefox, you can download it free from this link. Problem solved.

Also, there is a simple work-around that lets you still use Java on Chrome, link here. I used that successfully last week to file a motion when I was away from the office and using a computer that did not have Firefox.

Happy filing!

Update: if you already have Firefox but installing Windows 10 changed your default browser to Edge, directions for changing it back are here.



Pope grants deadline extensions, sort of

The Pope’s upcoming visit to Philadelphia is bringing the city to a virtual halt, and the Third Circuit is not immune.

The Court has announced that, in light of the papal visit, various filing deadlines that had been set for Sept. 24-28 will be extended automatically. The details are in the court’s announcement.

Also, the Clerk’s office and the help desk will be closed from the 24th through the 28th.

H/T: I missed the announcement on the court website, but happily Bruce Greenberg and his New Jersey Appellate Law blog did not. Edit: also the Third Circuit Bar Association sent an email blast to members immediately after the court’s announcement.

A tsunami of new opinions

Six new opinions today! Plus 3 others from yesterday. I’m swamped so I’m keeping it short.

In re: Search of Electronic Communications — 4th Amendment — dismissal — Fuentes

The court dismissed this appeal by Congressman Chaka Fattah challenging a search warrant, holding that challenges to unexecuted warrants do not qualify for interlocutory appeal.

Schmigel v. Uchal — civil procedure — reversal — Krause

The court held that the notice requirement of Pennsylvania’s certificate-of-merit requirement for state professional malpractice suits is substantive and thus applies in a federal-court diversity suit. Rendell dissented.

Lincoln Benefit v. AEI Life — civil procedure — vacate — Fuentes

The court held that, in order to survive a motion to dismiss, a diversity-suit plaintiff need not allege the citizenship of each member of an unincorporated association, so long as it alleges complete diversity in good faith after a reasonable attempt to identify the members. Ambro concurred, joined by both members of the panel, to urge the Supreme Court to return to its earlier LLC-diversity approach.

Zahner v. Secretary — civil — reversal in part — McKee

The court held that federal law pre-empted a PA law that purports to make all annuities assignable and reversed a district-court ruling that annuities count as resources for purposes of Medicaid eligibility. Rendell dissented.

Reyes v. Netdeposit — class action — vacate — McKee

The court vacated a district court order denying certification of a consumer class on commonality and predominance grounds. Charles Becker argued on behalf of amici.

U.S. v. Doe — 2255 — remand — Ambro

The court remanded in this significant 2255 appeal, vacating the district court’s denial of Doe’s successor motion. The opinion is a glorious 50-page monument to the absurd complexity of habeas law.


Yesterday’s opinions:

Spady v. Bethlehem School Dist. — civil rights — reversal — Vanaskie

The court held that a defendant in a suit under 1983 was entitled to summary judgment because his conduct did not violate a clearly established constitutional right.

Washington v. Secretary — habeas — affirmance — Fisher

The court again affirmed a grant of habeas relief for allowing redacted introduction of a co-defendant’s confession, following a Supreme Court GVR.


In addition, the panel granted the appellant’s motion for panel rehearing in May’s Free Speech Coalition v. A.G., summarized here. Presumably a revised opinion is forthcoming.

New opinion — hearing required in 2255

United States v. Tolliver — 2255 — reversal — Greenaway

Today the Third Circuit vacated a district court ruling that had adjudicated a motion under 28 U.S.C. 2255 (the analog to habeas corpus for prisoners who were prosecuted in federal court) without holding an evidentiary hearing. The court remanded for a hearing and the opinion contains strong language supporting the need for 2255 hearings:

A district court considering a § 2255 motion “‘must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record.’”  Id. at 545 (quoting Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). In the IAC context, a movant need only “raise[] sufficient allegations” that his counsel was ineffective in order to warrant a hearing. Id. at 549.

Also the court did not apply plain-error review, even though the lack of a hearing was not raised in district court: ““It is irrelevant whether the Government or [movant] requested the hearing.'” And the only disputed facts went to prejudice, not deficient performance.

All that is likely to be helpful for many prisoners seeking hearings to challenge their federal convictions, but it was bad news for the prisoner here because the district court had granted her 2255 relief without a hearing.  Full disclosure: I am the prisoner’s CJA-appointed counsel.

Joining Greenaway were Fuentes and Nygaard. I argued for the prisoner, Robert Zauzmer argued for the government.

New opinions — bar-admission reciprocity and ERISA

NAAMJP v. Castille — constitutional law — affirmance — Krause

When I moved back to PA from NC back in 2008, I was admitted to practice in PA without taking the PA bar exam because I’d passed the NC bar and PA and NC have reciprocity. (Would I have moved here if I had to take the bar exam? Tough one.) Reciprocity makes sense because the effort required to re-learn areas of the law utterly irrelevant to your practice is a laborious, expensive waste for established lawyers.

Now, apparently there are some lawyers who feel especially strongly about that, and they belong to a group called the National Association for the Advancement of Multijurisdictional Practice (motto: “One bar exam is more than enough”). Said group, and two of its members from MD and NJ, sued the justices of the PA Supreme Court, alleging that PA’s lack of reciprocity with their states violates various constitutional provisions.

Alas, today NAAMJP lost on appeal, just as it had lost in district court. The opinion, appropriately, is a great little con-law refresher for those whose recollection of Conviser has dimmed.

Joining Krause are Chagares and Barry. The case was decided without argument.

For those interested, a sympathetic ABA Journal article on reciprocity challenges is here.


Mirza v. Insurance Administrator — ERISA — reversal — Fuentes

Today’s other decision is an ERISA case, and today that’s all I’ve got.


New opinions — NJ sports betting and civil rights

NCAA v. Governor of NJ — civil — affirmance — Rendell

Ted Olson vs. Paul Clement is the appeals-nerd equivalent of Ali-Frazier, so any case where they square off is sure to draw attention. So it was here. Today, the Third Circuit held that New Jersey’s sports-betting law violated federal law. Early news coverage by AP here and Legal Intelligencer here. Clement wins this round.

For a free oral-argument DIY CLE, the audio of the argument is here.

Joining Rendell was Barry; Fuentes dissented. Arguing counsel were Theodore Olson for the governor, Ronald Riccio for a trade association, Michael Griffinger for two state legislators, Paul Clement for the NCAA, and Peter Phipps for the US.

Update: coverage of the decision in New York Times here and Washington Post here.

Sprauve v. West Indian Co. — civil rights — reversal in part — Chagares

Today, the Third Circuit held that a company — once private, but now 100% government-owned — was a government entity for purposes of a civil-rights suit under 1983. The case was argued back in December.

Joining Chagares were Jordan and Shwartz. Arguing counsel were Karin Bentz for the plaintiffs and Micol Morgan for and Mark Hodge for the government defendants.

New opinions — a cyber-security win for the government, plus an ERISA appeal

FTC v. Wyndham Worldwide — agency — affirmance — Ambro

Wyndham Hotels was hacked 3 times, and over 600,000 consumers’ data was stolen. Among the Wyndham brands are Ramada, Super 8, Howard Johnsons, and Days Inn. The Washington Post lays out the facts here. The Federal Trade Commission sued Wyndham, alleging that its inadequate cyber-security was unfair to consumers. Wyndham moved to dismiss, and when that was denied it brought this interlocutory appeal, arguing that the FTC lacked authority to regulate cyber-security and that it lacked notice that its cyber-security practices were unlawful. Today, the Third Circuit affirmed in an opinion peppered with criticisms sharper than one normally sees directed at a Biglaw-represented party, such as this:

Wyndham posits a reductio ad absurdum, arguing that if the FTC’s unfairness authority extends to Wyndham’s conduct, then the FTC also has the authority to “regulate the locks on hotel room doors, . . . to require every store in the land to post an armed guard at the door,” Wyndham Br. at 23, and to sue supermarkets that are “sloppy about sweeping up banana peels,” Wyndham Reply Br. at 6. The argument is alarmist to say the least. And it invites the tart retort that, were Wyndham a supermarket, leaving so many banana peels all over the place that 619,000 customers fall hardly suggests it should be immune from liability under § 45(a).

Joining Ambro were Scirica and Roth. Arguing counsel were Eugene Assaf of Kirkland & Ellis (a former Weis clerk) for Wyndham and David Shonka for the FTC. The appeal had heavy amicus involvement as well.


Stevens v. Santander Holdings — ERISA — affirmance — Greenberg

The Third Circuit held today that, when a district court held that a denial of benefits was arbitrary and remanded to the plan administrator to reinstate short-term benefits and assess the employee’s eligibility for long-term benefits, and when it retained jurisdiction over the case, the district court’s decision was not yet final. CA3 thus dismissed the appeal for lack of jurisdiction.

Joining Greenberg were Greenaway and Krause. Arguing counsel were Patricia Smith of Ballard Spahr for the employer and Mark DeBofsky for the former employee.

New opinions — a riposte on equitable mootness, plus 3 cases

In re: Tribune Media Co. — bankruptcy — reversal — Ambro

Two appellants challenged the Tribune Company’s bankruptcy reorganization plan, and the district court held that both challenges were equitably moot. Yesterday, the Third Circuit held that one challenge was equitably moot but that the other was not because their challenge would not disrupt the reorganization or harm third parties who have relied on it.

The holding is important for bankruptcy lawyers, but this is a fascinating case for other CA3 lawyers, too. Here’s why: just a month ago, Judge Krause — the court’s newest judge — issued a provocative and forceful opinion in In re: ONE2ONE urging her colleagues to abolish (or, failing that, modify) its equitable mootness doctrine.

In Tribune Media, Ambro responds directly to Krause, with a separate concurrence to his own majority opinion. (Vanaskie joins, Shwartz doesn’t.) Ambro acknowledges that Krause’s concurrence is well-crafted, but responds over 11 remarkable pages with a point-by-point rebuttal to her arguments against equitable mootness. If Krause’s opinion read like a petition for en banc review, and Ambro’s reads like a response in opposition. It’s a rare dialogue.

As noted, Vanaskie and Shwartz joined Ambro’s main opinion and Vanaskie joined his concurrence. Arguing counsel were appellate superstar Roy Englert for the challengers (one of the lawyers on the brief was Mark Stancil, an appellate star in his own right who clerked for the same Tenth Circuit judge I did) and James Johnston for the debtor.


Hansler v. Lehigh Valley Hosp. Network (panel rehearing) — FMLA — reversal — Fuentes

The Third Circuit granted panel rehearing and issued a new opinion in this FMLA case, originally decided in June. Before the panel was split, with Roth dissenting; now the panel was unanimous. While the outcome remained the same, the court changed language in the opinion. For example, where the old opinion said, “Lehigh Valley violated the Medical Leave Act,” the new one says, “Hansler has stated a claim that Lehigh Valley violated the Medical Leave Act.”


Jones v. SEPTA — employment — affirmance — Hardiman

The Third Circuit held that, under Title VII’s substantive discrimination provision, suspension with pay is not an adverse employment action.

Joining Hardiman were Greenaway and Krause. The case was decided without argument.


Chavez v. Dole Food Co. — jurisdiction — affirmance — Nygaard

A divided Third Circuit panel upheld a district-court order dismissing a suit with prejudice based on the first-filed rule, relying in part on its view that the “party’s forum shopping [wa]s so clearly on display.”

Nygaard was joined by Greenaway; Fuentes dissented, arguing that the majority created a circuit split. Arguing counsel were Jonathan Massey for the appellants, Caitlin Halligan for one appellee, and Steven Caponi (the only non-Scotus clerk who argued) for a second appellee.


New opinion — a rare habeas-petitioner win

Programming note: I was in Charlotte last week for the National Federal Habeas Corpus Seminar, and I’m out of town this week visiting family, so I’m behind on my opinion summaries. Apologies, dear readers.

Lee v. Superintendent — habeas corpus — affirmance — Ambro

I’ve observed here and here before that the Third Circuit’s once-robust reversal rate in habeas cases cratered after 2011. That post used statistics through 2013; in 2014, the habeas- and 2255-reversal rate remained vanishingly low. I’m pretty sure that reversal-rate freefall is awful news for habeas petitioners overall — CA3 didn’t suddenly get more deferential to district-court habeas rulings. Instead, a lot of prisoners who would have won reversals on appeal a few years ago get affirmed now.

But the Court’s recent decision in Han Tak Lee’s case proves that not all habeas affirmances are prisoner losses. Lee was convicted in Pa. court of murdering his daughter by setting fire to the building where she slept. In his habeas petition, Lee alleged that his due-process rights were violated because the prosecution’s arson-expert testimony was junk science. That’s a legally creative claim, and creative claims almost always lose in habeas these days, but the circuit’s ruling in Lee’s prior appeal was law of the case and it gave him enough to win in district court and again on appeal.

It is often said that cases like this prove how well our legal system works, but that is absurd. Even after the prosecution’s key evidence was discredited, and even after Lee hit the lottery when he got appellate powerhouse Peter Goldberger to represent him, he still won only by the skin of his teeth. And he first alleged in federal court the gross unreliability of the prosecution’s evidence against him back in 2005, but he sat behind bars for almost another decade before his release. Han Tak Lee was in maximum-security prison, wrongfully convicted of killing his own daughter, for 24 years. As he told People earlier this month, “I lost all my dreams.”

Joining Ambro were Fuentes and Greenberg. Arguing counsel were Peter Goldberger for Mr. Lee and Matthew Bernal for the state.


Two interesting links

Howard Bashman’s latest Upon Further Review column in the Legal Intelligencer (free link here) contains a fascinating discussion of video recording of Third Circuit arguments. (That’s a point I mentioned in my circuit website roundup here.) Bashman reports that Chief Judge McKee told him “he was hoping to convince his colleagues on the Third Circuit that the court should join the Ninth Circuit in posting video of its oral arguments online.” I share Howard’s strong support for the idea.

And here is the latest newsletter of the Bar Association for the Third Federal Circuit. As usual it is essential reading for CA3 practitioners and super-fans. It includes an article by Judge Smith discussing circuit cost-reduction efforts, which notes:

[I]n the wake of sequestration, Chief Judge
Theodore A. McKee implemented a fiscal austerity program to be applied to
both the use of space within the court units of the Circuit and the expenditure
of funds that could be re-programmed from facility improvements to personnel.
Quite simply, Chief Judge McKee’s concerns were that the job security of
court staff has priority over any short-term improvements in rented space. Our
Circuit was the only one in the country to adopt such a policy. And that policy
set the tone for our implementation of the national space reduction goals that
were subsequently mandated by the Judicial Conference.

The latest issue also includes this article, co-authored by Bashman and me, discussing the Lehman Brothers decision, plus an article by me on CA3 en banc practice, adapted from this blog post. I was proud to have the chance to contribute to 3CBA’s fine work.

New standing order for immigration cases

Today the Third Circuit issued a new standing order “to ensure that petitioners in immigration matters are not deported before the Court has an opportunity to act on a motion for stay of removal and to ensure that the Court has a sufficient record on which to decided such a motion.”

The standing order is here.

Under the new standing order, if a party files a facially valid stay of removal (meeting 4 criteria listed in the order), then the Clerk is directed to stay removal until a motions panel has considered the motion.

In June, Chief Judge McKee entered an order directing the government to find and return a mother and daughter who were about to be, or had just been, deported to Guatemala. According to this news account:

Cambria had asked the court to block Ana’s deportation while her latest appeal was pending. In its opposition to that request, the U.S. attorney’s office told the court that, as of June 9, immigration officials had no plans to remove Ana and her daughter. She was then removed 10 days later at 9:55 a.m. Friday morning.


New opinions — a child-sex suit against the voice of Elmo, and two cases a lot less likely to go viral

Well, it’s August, and that means clerkships are ending so chambers are cranking out a lot of opinions. After whole weeks without a published opinion back in the spring, this week has seen 1 Monday, 3 yesterday, and 3 more today. Happy days for CA3 fans.

Stephens v. Clash — civil — affirmance — Smith

Kevin Clash is “‘an internationally-known puppeteer and voice actor for children’s programming,’ best known for his role as the voice of Sesame Street‘s Elmo.” Sheldon Stephens alleged that Clash started a multi-year sexual relationship with him in 2004 when Clash was 44 and Stephens was 16. Stephens alleged that he did not become aware of the psychological harm he suffered until 2011, and he filed suit in 2013, 9 years after the sex began and 7 years after Stephens turned 18, but the district court dismissed the suit as untimely.

Today, the Third Circuit affirmed. The court held that the discovery rule applies,* but held the plaintiff’s claims were untimely anyway because, even if he did not recognize the extent of his injuries until later, he should have discovered that he was injured from the outset of the sexual “relationship.”

* The majority opinion says, “we hold that the discovery rule is applicable,” and refers to “this holding,” but in his concurrence Jordan asserts that this discussion is dicta because it is not necessary to the outcome.

Joining Smith were Jordan and Sloviter, with Jordan concurring separate to express doubt about the discovery holding. Arguing counsel were Stuart Mermelstein for the plaintiff and Michael Berger for the voice of Elmo.

In re: Semcrude — bankruptcy — Fisher — reversal

The Third Circuit’s introductory summary defies improvement by me:

Thomas L. Kivisto, co-founder and former President and CEO of SemCrude L.P., an Oklahoma-based oil and gas company, allegedly drove SemCrude into bankruptcy through his self-dealing and speculative trading strategies. SemCrude’s Litigation Trust sued Kivisto, and the parties reached a settlement agreement and granted a mutual release of all claims. One month later, a group of SemCrude’s former limited partners (collectively, “Oklahoma Plaintiffs”) sued Kivisto in state court, alleging breach of fiduciary duty, negligent misrepresentation, and fraud. Kivisto filed an emergency motion to enjoin the state action on the theory that the Oklahoma Plaintiffs’ claims derived from the Litigation Trust’s claims, which the U.S. Bankruptcy Court for the District of Delaware granted. On appeal, the U.S. District Court for the District of Delaware reversed, concluding that the claims were possibly direct and remanded. The Bankruptcy Court thereafter adopted the District Court’s order in its entirety and denied injunctive relief. Because we conclude that the claims are derivative, we will reverse.

Joining Fisher were Fuentes and Krause. Arguing counsel were Paul Bessette for Kivisto and Adam Schiffer for the Oklahoma plaintiffs. The case was argued back in December.

Devon Robotics v. DeViedma — civil — dismissal of interlocutory appeal — Krause

The Third Circuit dismissed this interlocutory appeal from denial of summary judgment, holding that it lacked jurisdiction. Civ pro nerds, rejoice! Remembering last month’s impressive equitable-mootness opinon, I’d say Judge Krause is already coming into her own as a procedure-law powerhouse.

Joining Krause were McKee and Greenaway. Arguing counsel were Gary Samms for the appellees and James Golden for the appellant.

New opinions — a questionable plea-ineffectiveness ruling, plus two civil-rights cases

US v. Fazio — habeas corpus — affirmance — Chagares

Cosmo Fazio is a non-citizen who pled guilty to cocaine distribution after his lawyer told him that, in light of the conviction, there was “a chance” he would be deported but in the lawyer’s opinion “he would not be.” Both the plea agreement and the plea colloquy said that “no one can predict to a certainty” what effect the conviction would have on his immigration status. Ten days after Fazio pled guilty, a new lawyer told him that deportation was not just possible, it was certain. Fazio immediately tried to take back his plea, and ultimately Fazio filed a 2255 motion arguing that his plea counsel was ineffective, which the district court denied.

Today, the Third Circuit affirmed, denying Fazio’s appeal. The court did not decide whether plea counsel’s performance was deficient, holding that Fazio was not prejudiced because the colloquy “cured” any error by counsel. (The court also enforced Fazio’s collateral-attack waiver, although the opinion suggests that it would not have enforced the waiver if it had found that the ineffective-assistance claim had merit.)

Chagares was joined by Ambro and Vanaskie. Arguing counsel were Almon Burke and Mark Goldstein for Fazio and Michael Ivory for the government.

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.


  • Here is the district court order denying Fazio’s motion to withdraw his plea, which describes the facts in greater detail than the CA3 opinion does; and
  • Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “seve