New opinion — disabilities-suit exhaustion

A parent and her son sued a school district under the Individuals with Disability Act and other laws. The district court dismissed their suit for failure to exhaust administrative remedies under IDEA. The plaintiffs appealed, and CA3 affirmed.

The case is Batchelor v. Rose Tree Media School District. Opinion by Greenaway, joined by Ambro and Hardiman. Arguing counsel were Frank Schwartz for the plaintiffs and Craig Ginsburg for the district.

New opinion — En banc opinion on preserving procedural sentencing error

The en banc court today ruled that, going forward, a defendant must object to procedural errors at sentencing in order to avoid plain error review, superseding a 2008 panel ruling to the contrary and, according to the majority, splitting with CA4 (and maybe CA7). But the court applied the old rule to the case before it and reversed for resentencing.

The case is United States v. Flores-Mejia. Opinion by Roth, joined by McKee, Rendell, Ambro, Fisher, Chagares, Jordan, Hardiman, and Vanaskie, and by Fuentes as to the need to apply the old rule and how it applies. Greenaway dissented, joined by Smith, Shwartz, and Sloviter, and by Fuentes in part. Arguing counsel were AFD Robert Epstein for the defendant and AUSA Robert Zauzmer for the government.

Update: I have a few thoughts.

First, although there’s a circuit split here, my hunch is cert is unlikely. I’m skeptical that there are 5 votes on the current Court for the dissent’s view, no matter how persuasive its textual analysis of FRCrP 51 may be.

Second, I find the court’s application of its procedural reasonableness rule (the ‘old rule’ above) baffling. The standard is that sentencing courts must “acknowledge and respond to” adequately presented sentencing arguments, and failure to give “meaningful consideration” to such arguments is error. Here, the court heard the argument and replied “Ok, thanks. Anything else?” I guess that might count as ‘acknowledging,’ but how could it be ‘responding to?’ How does that show meaningful consideration? The majority says it is error but “it’s a close issue.” Close? How much further from a meaningful response is possible? Yet the dissenters go further: except for Fuentes, they would affirm. I don’t understand it. If you’re not going to apply a prior holding, don’t you have to overrule it? If judges don’t care about this sort of thing, who will? (Answer: nerds like me.) Anyhow, today’s ruling largely moots the whole point anyway.

Third, the judge split here is interesting. The majority’s core holding is pro-government, so, given a split, one might expect the conservatives in the majority and the liberals in dissent. But McKee, Rendell, Ambro, and Vanaskie all joined the majority, while Smith joined the dissent. Judicial economy was central to the majority’s reasoning, while the language of the controlling federal rule was not, and that may help explain the voting.

Finally, the court applied the old rule here because it wasn’t fair to punish a lawyer for failing to make an objection that then-settled law said wasn’t required. So what about defendants sentenced today? Tomorrow? Do CA3 judges think that lawyers who do federal sentencings read their new opinions on a daily basis? I bet it will be weeks or even months before the word of Flores-Mejia really gets around. Interesting practical problem.

New opinion — federal agency jurisdiction

800px-View_of_the_Ewen_Breaker_of_the_Pa._Coal_Co._The_dust_was_so_dense_at_times_as_to_obscure_the_view._This_dust..._-_NARA_-_523378

“View of the Ewen Breaker of the Pa. Coal Co. The dust was so dense at times as to obscure the view. This dust penetrated the utmost recesses of the boy’s lungs. A kind of slave-driver sometimes stands over the boys, prodding or kicking them into obedience. S. Pittston, Pa.” [1911] (Wikimedia Commons public domain)

The Shamokin Filler Company repeatedly violated federal workplace-safety standards that limit breathable coal dust. So it sued, arguing that it should be regulated by OSHA’s less-stringent standards instead of the Federal Mine Safety and Health Administration’s more-stringent ones. In today’s lone published opinion, CA3 denied the company’s petition for review.

The case is Shamokin Filler Co. v. Federal Mine Safety and Health Review Commission. Opinion by Fuentes, joined by McKee and Chagares. Arguing counsel were Adele Abrams for the company and Sara Johnson for the government.

New opinion — applying plain error to affirm forcibly medicating a schizophrenic defendant to make him competent to be sentenced

Abraham Cruz was convicted of threatening a federal law enforcement officer. After trial but before sentencing, the district court ordered a competency evaluation at the prosecution’s request, and he was found incompetent due to schizophrenia. It is unclear whether his mental illness was ever raised at trial to challenge competency or support a defense. Like many persons with schizophrenia, Cruz refused anti-psychotic medication. After an evidentiary hearing, the district court ordered Cruz forcibly medicated so that he could be sentenced. Even though Cruz, through counsel, had not opposed the forcible-medication motion and presented no evidence or argument at the hearing, he appealed, apparently still represented by the same office. Reviewing for plain error only, CA3 affirmed.

The case is United States v. Cruz. Opinion by Cowen, joined by Fisher and Tashima CA9 by designation.

Judging from the opinion, this case is disturbing. I hope Cruz at least gets counsel to represent him for a 2255 motion.

CA3 hears argument in gay-conversion-therapy-ban case

444px-Hypnose_(Schneider)

Hypnosis. Sascha Schneider, 1904 (Wikimedia Commons public domain)

A CA3 panel heard argument yesterday in an appeal challenging New Jersey’s ban on so-called gay-conversion therapy. The case is King v. Governor of NJ, the panel is Smith, Vanaskie, and Sloviter. Argument audio has not been posted yet (it will be here), but coverage of the argument is here.

H/T: Howard Bashman at How Appealing.

New opinions — third-party election-law case and habeas reversal

Two interesting cases today, both reversals.

First up is a significant election-law case. Third-party candidates in PA have to apply to get on the ballot, and their applications must include a specified number of signatures. Three state political parties–the Constitution Party, the Green Party, and the Libertarian Party–challenged PA’s third-party ballot-access procedure, and the district court dismissed for lack of standing. On appeal, a divided panel found standing and reversed.

The case is Constitution Party of PA vs Aichele. Opinion by Jordan, joined by Roth, with dissent by Ambro. Arguing counsel were Oliver Hall for the third parties and Claudio Tesoro for the Commonwealth.

Today’s other case is a rare reversal in favor of a non-capital habeas petitioner. Defense counsel at Horace Branch’s criminal trial failed to present two witnesses, and Branch argued that his counsel was ineffective. The state courts denied MAR relief and the district court denied relief (and denied COA). CA3 reversed, holding that the state court denial was an unreasonable application of federal law and that the district court abused its discretion in failing to grant an evidentiary hearing.

The case is Branch v. Sweeney. Opinion by Greenberg joined by Fuentes and Van Antwerpen. Arguing counsel were Elyse Lyons (a 3L in Duke Univ. law school’s appellate litigation clinic) for the inmate and Sara Friedman for the state. Footnote 3 of the opinion notes that the clinic represented Branch with great skill and thanked Ms. Lyon by name “for this fine representation.”

New opinions–DOC can’t be sued for erroneous denial of half-way-house transfer, plus a criminal-sentencing affirmance with a dissent

Two published decisions today.

First up is the sad case of Darryl Powell. Powell was serving a prison sentence and was due to be transferred to a community correctional center (a half-way house). But DOC made an error, so instead Powell was stuck in prison an extra 17 months. Powell sued under 1983, and the district court dismissed. On appeal, CA3 affirmed. Although the court “sympathize[d] with Powell,” it held that he had no liberty interest in transfer from prison to a half-way house.  (The error also caused Powell serve an extra seven months on parole, but the court rejected Powell’s wrongful-parole claim based on its sua sponte conclusion that he sued the wrong employee.) Seems like a harsh result.

The case is Powell v. Weiss. Opinion by Hardiman, joined by Ambro and Greenaway. Arguing counsel were Brian Zeiger for Powell, and Laura Neal and Alan Robinson for the corrections employees.

Today’s other case involves a criminal sentencing issue. When a defendant violates the terms of her supervised release, the court must (given specified circumstances) revoke her release and impose a new prison sentence. Here, the court held that the general sentencing statute, 18 USC 3553, also governs such revocation sentences.

The case is US v. Thornhill. Opinion by Smith, joined by Hardiman; Rendell concurred that section 3553 applies, but dissented from the panel majority’s ruling that no remand was needed to allow the district court to apply the correct standard. Arguing counsel were Elisa Long for the defendant and Michael Ivory for the government.

Two argument panels this week

The court is hearing panel oral arguments in Philadelphia this week in two courtrooms. A panel of Rendell, Chagares, and Jordan are hearing arguments Tuesday and Wednesday. A panel of Smith, Vanaskie, and Shwartz sits Tuesday and of Smith, Vanaskie, and Sloviter sits Wednesday. There are 3 arguments each sitting, all starting at 10 a.m.

 

Cheryl Ann Krause has been confirmed

Dechert partner and Penn Law adjunct Cheryl Ann Krause has been confirmed by the Senate. The vote was 93-0. She fills the seat that opened when Sloviter went senior. When she receives her commission, the court will have 13 active judges (8 nominated by Democratic presidents, 5 by Republicans) and one remaining open seat. Krause is the fourth CA3 Obama nominee confirmed.

Judge Krause will be the only former Scotus clerk on the court, and at 46 its youngest judge.

Update: After her confirmation, Krause was quoted by Jeff Blumenthal of Philadelphia Business Journal (link here):

“I am humbled and grateful to President Obama and the Senate, and in particular [Pennsylvania’s U.S. Senators, Robert Casey and Pat Toomey] for this opportunity to return to public service and am deeply honored to join the esteemed bench of this Court,” Krause said. “I look forward to continuing its traditions of excellence and collegiality.”

New opinion — affirming 2255 denial

Perhaps believing CA3′s reversal rate in federal post-conviction appeals is too high — in 2013 it was 0.8% — a conservative CA3 panel today contorted to make 2255 relief even harder. It  wrote:

As a collateral challenge, a motion pursuant to 28 U.S.C. § 2255 is reviewed much less favorably than a direct appeal of the sentence.  See, e.g., United States v. Frady, 456 U.S. 152, 167-68 (1982). Indeed, relief under § 2255 is available only when “the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’  and  . . .  ‘present[s] exceptional circumstances where the need for the remedy afforded by the writ . . . is apparent.’”  Davis v. United States, 417 U.S. 333, 346 (1974) (quoting  Hill v. United States, 368 U.S. 424, 428 (1962)).

And the opinion repeats this “fundamental defect which inherently results in a complete miscarriage of justice” standard in its conclusion. Actually, what Davis held is that 2255 applies to federal statutory claims, not just constitutional claims. The language quoted today was passing dicta offered to show that “ a prior case “did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the “laws of the United States.” That’s an odd source for sweeping 2255 standard-of-review language.

The impact of that scare-language should be negated, at least as to ineffective-assistance-of-counsel claims, by the opinion’s later acknowledgment that “if Travillion shows both elements of Strickland, he satisfies the requirements of § 2255.” Time will tell.

The case is US v. Travillion. Opinion by Van Antwerpen, joined by Fisher and Tashima CA9 by designation. Arguing counsel were Louise Arkel for the inmate and Jane Dattilo for the government.

 

Court rejects effort to appeal same-sex marriage ruling

When PA Governor Corbett decided not to appeal a district-court ruling striking down the state’s same-sex-marriage ban, it looked like CA3 would be shut out of the historic legal fight over same-sex-marriage.

But not entirely–yesterday the court got to decide a minor related issue. When the Governor chose not to appeal, a county clerk responsible for issuing marriage licenses sought to intervene to appeal. The district court denied the motion, reasoning that the clerk was bound by his ruling and lacked standing to appeal it.

In a two-sentence order, CA3 summarily affirmed for essentially the reasons given by the district court. The order was signed by Shwartz, with Fuentes and Jordan also on the panel.

Brown v. Board it ain’t. But the clerk reportedly has vowed to seek Supreme Court review, so maybe CA3 will get its chance yet.

Wait … there was another CA3 cert grant this term?

Well, I try to follow CA3 closely, but when it comes to Scotus cases outside of my own practice areas I often just rely on the experts at Scotusblog. So when their case stats page said there was just one CA3 cert-grant this term, Bond v. US, well, I poked no further. (My fault, not theirs.)

Imagine my surprise, then, when I finally realized that Burwell v. Hobby Lobby — only the biggest Scotus case of the term — had a companion grant, Conestoga Wood Specialties Corp. v. Burwell, from CA3. Oops.

Anyhow, CA3 decided Conestoga Wood last July, opinion here. The list of amici runs over 6 pages in the slip op, so it was a big case long before cert was granted. Cowen wrote the opinion for the panel majority, joined by Vanaskie. The majority held that, because a corporation is distinct from its owners, it cannot engage in religious exercise. Jordan dissented, 66 pages of Justice Kennedy-esque grand tone like this:

My colleagues, at the government‟s urging, are willing to say that the  Hahns’ choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit.

That deeply disappointing ruling rests on a cramped and confused understanding of  the  religious rights preserved by Congressional action and the Constitution. The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface,  where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is. I do not believe my colleagues or the District Court judge whose opinion we are reviewing are ill-motivated in the least, but the outcome of their shared reasoning  is genuinely tragic, and one need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the government‟s determination to either make the Hahns bury their religious scruples or watch while their business gets buried.

Of course, Jordan’s position prevailed in the Supreme Court.

Conestoga’s en banc petition fell a single vote 2 votes short. (Order here). (Update: My thanks to David Fine for pointing out that 6 of 12 is not enough to grant rehearing.) The only Republican-nominated judge voting against rehearing en banc was Chagares.

Krause nomination hits the home stretch, confirmation expected after July 4

As I predicted, Cheryl Krause’s CA3 confirmation vote appears to be nearing. Last Thursday, the Senate voted 57-39 to invoke cloture, and a confirmation vote now is expected after the July 4 holiday.

In a floor speech before the vote, Republican PA Senator Toomey expressed his enthusiastic support for Krause’s nomination. He noted she has experience “both on prosecution side and defense side, so she understands both perspectives, both of which need to be understood to have a proper balanced perspective on the court.” Hear hear.

Toomey also described his ongoing bipartisan collaboration on judicial nominations with Democratic Senator Casey, noting that they were working on filling the remaining vacancies, which include the last CA3 seat.

Video of the proceedings on C-Span here; Toomey’s remarks begin at 36:17, the vote begins at 2:16:03 and ends at 2:49:50. Coverage of the vote by Daniel Wilson at Law360.com here.

New opinions — “bench of fire” case ends in immigration reversal, plus an employment reversal

Regular readers may recall the “bench of fire” argument, wherein a CA3 panel reset my standard for what constitutes a hot bench. I wrote:

If I ever create an online legal dictionary, the entry for “hot bench” will just be a link to this recent argument. Holy moly. The case was Mayorga v. AG, a deportation challenge argued April 8.

Start at 8:30 (that’s AG counsel’s argument, after the panel sat Mayorga’s lawyer down early). The resignation in counsel’s voice by 9:09 is priceless.

The panel was Hardiman, Sloviter, and Barry. Arguing counsel were Tad Macfarlan pro bono (assigned by CA3 superstar David Fine) for the petitioner and Anthony Nicastro for the AG, and both did quite well considering.

Mayorga was decided today. Reversing, the panel held that a conviction for unlicensed firearms dealing is not categorically a crime involving moral turpitude and therefore does not support a lifetime ban on entry to the country. Opinion by Sloviter joined by Barry, with Hardiman dissenting on standing.

A couple things I found interesting in Mayorga:

  • CA3 goes weeks at a time without issuing a published opinion with a dissent. I haven’t researched it yet, but I bet CA3′s dissent rate is way below other circuits’.
  • The court included a prominent footnote naming and thanking K&L Gates for allowing its associate to represent the indigent petitioner.
  • For appeal nerds, Hardiman’s dissent offers an inside-baseball nugget. He explained that Mayorga’s winning issue was spotted by a motions panel (my guess is it was a circuit staff attorney who actually spotted it), reviewing the merits of Mayorga’s case in order to decide whether to grant his motion to appoint counsel. If my guess is right, this is the second case this week where the outcome turned on vigilant clerks and staff counsel (I discussed the other here).

The day’s other published case was an employment-discrimination appeal. When a DA’s-office detective was fired, he sued for age discrimination. The district court dismissed the suit, but CA3 vacated in part.

The case is Hildebrand v. Allegheny County. Opinion by Vanaskie, joined by Greenaway and Roth. Arguing counsel were Marjorie Crist for the employee, Virginia Scott and Bernard Schneider for the employers, and Anne Occhialino for the EEOC as amicus. Sad to say in 2014, but it’s refreshing to see a CA3 appeal where 3 of the 4 arguing attorneys are women.

 

 

New opinion — debt-collection suit reversal

Sometimes, the court’s own summary says it best:

Timothy McLaughlin had a mortgage. As a result of an error, the mortgage company  believed that he was in default and referred the matter to the law firm … (collectively “PHS”).    PHS sent McLaughlin a letter about the debt that he claims violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692  et seq.  The District Court  dismissed certain  claims because McLaughlin did not ask PHS to validate the debt before he filed suit. Because we conclude that he is not required to do so, we will reverse. We will, however, affirm the District Court’s imposition of  sanctions against PHS for its failure to produce certain documents during discovery.

The case is McLaughlin v. Phelan Hallinan & Schmieg. Opinion by Shwartz, joined by Smith and Vanaskie. Arguing counsel were Trent Echard for the plaintiff and Jonathan Bart for the debt-collecting firm.

Law clerks make justice happen, sometimes

We lawyers are sure that we win cases because of our great lawyering and lose them because of someone else’s bad facts or law. That’s often delusion, and proof of that came again yesterday in a soon-to-be-forgotten Establishment Clause case.

Here was how I summarized the case:

A neighbor sued under 1983, and the district court held that her Establishment Clause claim was barred because the statute of limitations began to run when the sign was posted. CA3 reversed, and for a reason not argued by the litigants: state statutes limitations do not apply to Establishment Clause claims challenging a still-existing display.

That holding won’t change the world, but what made the case interesting to me was this: the court rejected the appellant’s argument, but it reversed anyway based on an argument the appellant didn’t make. But if the lawyers didn’t come up with it, who did?

Maybe it was one of the judges, but my guess is that it was one of their clerks. Maybe it was a circuit staff attorney. Whoever it was, s/he has my respect. There are a lot of cases, a lot of meritless arguments, and a lot of lousy briefs to slog through. For clerks, it’s easier to just analyze the lawyer’s arguments, accept or reject them, and keep on moving. Going beyond the briefs — to get it right, even if the lawyers didn’t — is effort. It’s essentially invisible effort, justice for justice’s sake alone.

Just last week I was critical of what I see as a bad mistake in a published CA3 case. “Buck-naked wrong,” said I. It’s a mistake that reflects badly on the court in general, in my view, but the clerks who missed it are the ones who are going to squirm. I was a clerk myself, and, well, I know of what I speak.

Circuit court clerks aren’t perfect, any more than judges or lawyers or nerdy bloggers. When they go the extra mile to get it right, it’s a reminder of the critical role they play.

The budgets are coming, the budgets are coming!

Paul_revere_ride

The Midnight Ride (Wikimedia Commons public domain)

CA3 is advertising to hire a circuit case-budgeting attorney. (So are CA4, CA7 & CA8, and CA10. Update: CA1, too.)

CA3′s job listing says the case budgeting attorney will

work with Third Circuit committees, district court judges, magistrate judges, and Criminal Justice Act (CJA) panel attorneys to develop budgets and review budgets of criminal mega-cases and death penalty cases. Specifically, in conjunction with counsel and the assigned judge, the Circuit Case Budgeting Attorney will assist in preparation of budgets that address attorney and paralegal time, experts, investigation, and other case costs.

My two cents: case budgets sound sensible, but in practice they are a disaster. Most federal judges have no earthly idea how many hours are needed to provide competent representation in a capital case, and that’s likely to be doubly true in circuits like ours where CHUs do most of it. I’ve experienced capital case budgets in other circuits, and it was unpleasant indeed. For many indigent capital and multi-defendant litigants, case-budgeting will mean deep funding cuts. And over time this will further dry up the already shallow pool of competent CA3 lawyers doing this work.

After the British invaded, Washington’s army suffered a hard winter at Valley Forge: “Some men had no shoes, no pants, no blankets. Weeks passed when there was no meat and men were reduced to boiling their shoes and eating them. The wintry winds penetrated the tattered tents that were at first the only shelter.”

The budgets are coming — boiled shoes and tattered tents for CJA defense are coming too.

New opinion — establishment clause reversal

The Borough of Shickshinny, Pennsylvania (pop. 838) posted a sign on borough property that read:

 “Bible Baptist Church Welcomes You!”    It has a directional arrow with “1 BLOCK” written on it, and depicts a gold cross and a white Bible.

A neighbor sued under 1983, and the district court held that her Establishment Clause claim was barred because the statute of limitations began to run when the sign was posted. CA3 reversed, and for a reason not argued by the litigants: state statutes limitations do not apply to Establishment Clause claims challenging a still-existing display.

The case is Tearpock-Martini v. Borough of Shickshinny. Opinion by Vanaskie, joined by Chagares and Greenaway. The appeal was decided without argument.

 

Krause confirmation vote coming soon?

Cheryl Krause’s CA3 nomination has been awaiting a full-Senate vote for over 11 weeks now. According to judicialnominations.org, of the 16 judicial nominations pending before the full Senate, Krause has been there the longest, by more than a month.

From my quick look at 2014 circuit confirmations, about 10 weeks looks like the mean wait-time between committee vote and Senate vote.

So I think we can expect a Krause confirmation vote soon.

My earlier post on Krause’s nomination is here.

Update — New opinion: Retroactivity law is mighty confusing, even for CA3

UPDATED

First, my original post:

Last year, Alleyne v. United States expanded the rule of Apprendi to hold that facts that increase the prescribed range of punishment must be found by jury beyond a reasonable doubt. Earlier this year, CA3 held in US v. Winkelman that Alleyne does not apply to defendants whose convictions already are final. Today, the court reiterated that Alleyne is not retroactive, and clarified that Alleyne is a new rule.

The case is US v. Reyes. Opinion by Nygaard, joined by McKee and Chagares. It was decided on the briefs.

Ho hum. But, now, what I missed:

Reyes said it was only reiterating Winkelman, and Winkelman said it held that Alleyne does not apply on collateral review, but actually Winkelman was only a successor case, by both its facts and reasoning. (Not a habeas nerd? Collateral means all habeas corpus petitions, successor means only that subset of habeas petitions filed by people who’ve already lost a habeas in the same case; so a ruling that applies only to successors is narrow, one that applies to all collaterals is broad.) So Winkelman’s outcome, denying the successor, may have been defensible, but its stated holding was not.

But here’s the startling part: Reyes actually doubles down on its Winkelman error.  Reyes says:

[O]f course, the decision  to make Alleyne
retroactive rests exclusively with the Supreme Court, which
has not chosen to do so.  See Winkelman, 746 F.3d at 136; see
also Simpson, 721 F.3d at 876 (“Unless the Justices
themselves decide that  Alleyne  applies retroactively on
collateral review,” lower courts may not do so.);  United
States v. Redd,  735 F.3d 88, 91 (2d Cir. 2013).  Therefore,
Alleyne  does not provide Reyes  with any basis for relief
because the Supreme Court has not chosen to apply  Alleyne’s
new rule retroactively to cases on collateral review.

Slip op. at 6. This is buck-naked wrong. The decision to make Alleyne retroactive rests exclusively with the Supreme Court only as to successors, per 28 USC 2244(b)(2)(A), a provision that does not apply to non-successor collateral cases like Reyes. Simpson and Redd, like Winkelman, are successor cases, not collateral cases. The court will have to grant rehearing in this case to correct this error.

My sincere thanks to Peter Goldberger (who has forgotten more case law than I’ll ever know) for pointing out what I’d missed.

 

4 new opinions — a really dumb cop, an asbestos reversal, acronyms, and Younger abstention

It’s a big day for published opinions today, with four.

First up is a criminal affirmance with odd facts. Waterman was a police officer. One day, he up and told a supervisor he had downloaded 20 child porn videos. The FBI interviewed him about it — a year and a half later. Waterman told the FBI that he threw away the hard drive when it died. But the next day, he was caught in his patrol car breaking apart a computer circuit board (which doesn’t store data); also in the car was an already damaged hard drive (which does).  He was convicted of destroying evidence and his sentence was enhanced for interfering with administration of justice. On appeal, CA3 held it was not clear error to apply the enhancement even though no one saw him destroy the hard drives after the FBI interview.

The case is US v. Waterman. Opinion by Mariani MDPa by designation, joined by Fisher and Scirica. Arguing counsel were Maggie Moy of the FPD for Waterman and John Romano for the USA.

Today’s second opinion is a reversal in an asbestos case. When one former asbestos defendant went bankrupt, two others brought a bankruptcy claim seeking the money it owed a joint settlement fund. CA3 held that the bankruptcy claim stated a valid claim for breach of contract and reversed.

The case is In re G-I Holdings. Opinion by Fisher, joined by Scirica and Mariani MDPa. Argued by Rachel Bloomekatz and Stephen Hoffman for the appellants and Andrew Rossman for the debtor.

The third opinion arose from an FMLA employment suit. The employee sued claiming that he was punished for taking health leave. The district court granted summary judgment for the employer, and CA3 affirmed.

The case is Ross v. Gilhuly. Opinion by Jordan, joined by Ambro & Roth. (The opinion is filled with acronyms. Jordan is mighty lucky he’s not a D.C. Circuit lawyer.) Arguing counsel were Charles Sipio, a 2012 Widener law grad, for the employee, and Madeline Baio (her web page reveals that she won an award for best brief as a 1L in 1981) for the employer.

The final opinion involves a public employee who alleged discrimination, and his employer punished him because it believed his allegations contained false statements. He sued, and the district court invoked Younger abstention and dismissed. Interpreting the 2013 Scotus ruling in Sprint Communications, CA3 affirmed.

The case is Gonzalez v. Waterfront Commission. Opinion by Smith, joined by Rendell and Hardiman. The case was decided without oral argument.

New CA3 cert grant — Facebook-threats case

Having just reversed the Third Circuit on a criminal conviction arising from an ugly romantic break-up, yesterday Scotus granted cert to review another one. Virginia is for lovers, but Pennsylvania is for menacing, but perhaps not federally criminal, ex-lovers.

The case is US v. Elonis. The CA3 opinion upholding the conviction is here: Scirica was the author, joined by Hardiman and Aldisert. CA3 oral argument audio here. Elonis was represented in CA3 and on cert by Ronald Levine and Abraham Rein of Post & Schell. They were joined on the cert petition by Vinson & Elkins and the UVa Scotus clinic.

The question presented is whether subjective intent to threaten is required by either the First Amendment or the criminal statute. After Elonis’s wife left him, he made a series of posts on Facebook, including this (excerpted):

Did you know that it’s illegal for me to say I
want to kill my wife?
It’s illegal.
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not
allowed to say.
Now it was okay for me to say it right then
because I was just telling you that it’s illegal for
me to say I want to kill my wife.
I’m not actually saying it.
I’m just letting you know that it’s illegal for me
to say that.
It’s kind of like a public service.

Now the Supreme Court will decide whether that was “okay.”

For more, here are some links:

  • Scotusblog page with QPs and cert and amicus filings here
  • Post by the law school clinic here
  • Blog post by Jessica Mason Pieklo on RH Reality Check here
  • Early news coverage in USA Today here and Slate here

An unusual visitor

In April I observed here that visiting judges have been hearing far fewer CA3 cases than in years past. Bucking the trend, visiting judge Jane Restani sat with the court this week, visiting from an Article III court I’d never even heard of: the United States Court of International Trade. (Court page here, wikipedia here). Its mission:

to resolve disputes by:

Providing cost effective, courteous, and timely service to those affected by the judicial process;

Providing independent, consistent, fair, and impartial interpretation and application of the customs and international trade laws; and

Fostering improvements in customs and international trade law and practice and improvements in the administration of justice.

Judge Restani’s poor law clerks probably find themselves climbing a steep learning curve, since  customs courts doesn’t get much experience handling tricky and important capital habeas cases like the one the panel heard yesterday. (Although Judge Restani sounded admirably prepared at argument.)

Ambro and Barry were the other two judges on the panel.

New opinion — moocher-hunting isn’t searching

One new opinion today.

Richard Stanley thought he’d figured out how to share child porn on the internet without getting caught: instead of using his own internet connection, he mooched his neighbor’s (non-password protected) wifi. Police can track the activity to the neighbor’s ISP, but that doesn’t tell them who’s mooching. Pretty clever.

Unfortunately for Mr. Stanley, the state police also had a clever idea: bring in the “MoocherHunter.” A MoocherHunter, as you no doubt already know, is a software tool that measures directional signal strength to give you an idea where a wifi moocher is. It hunted, Stanley confessed, and he pled guilty but reserved the right to challenge the warrantless MoocherHunter-ing. Today, CA3 affirmed, denying Stanley’s appeal and holding that moocher-hunting isn’t searching.

The case is US v. Stanley. Opinion by Smith, joined by Shwartz (mostly) and Scirica. The opinion’s earnest use of “mooching” throughout is endearing.

At the end of the opinion is an interesting detour for Fourth Amendment nerds and CA3 nerds. Having found no search, the court nevertheless went on to criticize the district court’s  alternative reasoning rationale that people assume the risk that what they send over the internet will be exposed to police. The panel majority rejected this view because it “could, without adequate qualification, unintentionally provide the government unfettered access to this mass of private information without requiring its agents to obtain a warrant.”

Interestingly, Shwartz did not join that section of the opinion. Also interestingly, she did not write separately, but instead Smith explained her contrary position in a footnote. Shwartz viewed the discussion as unnecessary (it’s obviously dicta) and in any event she viewed the district court’s assumption-of-risk holding as correct in cyber-trespassing cases.

Early news coverage here.

 

 

New opinions — another correction, and another donning-and-doffing appeal

Two opinions today, both echoing recent appellate-junkie news.

First, the court issued a corrected opinion in Foglia v. Renal Ventures, a published reversal from last week. I mentioned here that it was 9 months between argument and opinion, but apparently that wasn’t quite long enough to catch an error. (Your diligent blogger had to know: the only change was on page 7, the original opinion erroneously said it was joining the First, Fifth, and Eleventh [corrected to Ninth] Circuits.)

Kudos to the court for catching and correcting its error (and for giving notice of the correction, unlike Scotus). Nothing nearly so embarrassing as Scalia’s plus ça faux pas earlier this term.

Today’s new opinion comes in a labor case brought by police officers arguing, among other things, that they should be paid for their time putting on and removing (“donning and doffing”) their uniforms each day. Appeals nerds will recognize this as the same sort of claim that got Posner in some well-deserved hot water earlier this year, when he cited his own in-chambers don-and-doff experiment as support for the outcome, leaving dissenting Judge Woods “startled, to say the least.” You’ll not be surprised to learn that CA3 chose not to reprise (or, at least, not to brag about in its opinion) Posner’s experiment — didn’t even cite the opinion. CA3 affirmed summary judgment against the officers.

The case is Rosano v. Township of Teaneck. Opinion by Fisher, joined by McKee and Sloviter. Arguing counsel were Marcia Tapia for the donner-and-doffers, Angelo Genova for the township.

New opinion — bankruptcy reversal

When a federal court interprets a state statute, how much deference does it owe to an intermediate state court’s interpretation of that statute? That was a key issue in an appeal decided today. The district court criticized the state court ruling but treated it as binding. Reversing, CA3 disagreed: “a federal court interpreting a state law may discount state appellate decisions it finds flawed, if it predicts the state supreme court would reach a contrary result.”

The case is In re: Makowka. Opinion by Hardiman, joined by Sloviter and Barry. It’s a published reversal without oral argument, unusual but not unheard-of.

New opinions — false claims, securities fraud

First up, a reversal that deepens a circuit split. A nurse who was fired sued her former employer under the False Claims Act, alleging the employer was lying about its compliance with state regulations. The district court dismissed for failure to state a claim based on heightened pleading requirements for fraud claims, but CA3 reversed. The court noted a circuit split on FCA pleading requirements and joined Circuits 1, 5, & 9, rejecting Circuits 4, 6, 8, & 11.

The case is Foglia v. Renal Ventures Management. Opinion by Sloviter, joined by McKee and Smith. Arguing counsel Ross Begelman for the nurse and Barry Muller for the employer. Nearly 9 months passed between argument and issuance, unusual for a 12-page opinion with no dissent.

Update: the opinion was reissued on 6/10/14, new opinion here.

The other published case today is a securities-fraud affirmance. A pension fund sued a drug-maker, alleging the maker misled the public about an Alzheimer’s drug it was developing.  CA3 upheld 12b6 dismissal of the suit.

The case is City of Edinburgh v. Pfizer. Opinion by Scirica, joined by Smith and Shwartz. Arguing counsel were Daniel Berger for the funds and John Villa for the drug-maker.

 

CA3 reversed in Bond

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John Singer Sargent’s painting Gassed, referenced in the opening sentence of today’s opinion.

The Supreme Court this morning decided Bond v. United States, the lone cert grant from CA3 this term. Opinion here. CA3 was reversed 9-0, again, with Roberts writing for the court and the other 3 conservatives concurring in the judgment.

Update: NYT coverage here, reaction on Volokh Conspiracy here, noting, “It is worth noting that this is one of the few cases that has gone to the Supreme Court twice. Even more unusually, Carol Anne Bond prevailed both times without losing a single justice’s vote.”  Most unusual of all is the fact that both times the Court reversed unanimous panel decisions.

New opinion — shareholder challenge to tax-deductible CEO pay fails

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This is my daughter, making the exact same face I made when I read this opinion.

Today, I learned that, when a corporation pays its top executives over $100 million, the corporation can claim that as a tax-deductible business expense. Because, really, what could be more sensible than having insanely large executive pay be subsidized by taxpayers?

Anyhow, that’s what Viacom did (the opinion dryly notes Viacom in 2011 earned over $2 billion), and one of its shareholders sued the corporation and its board members over it. Today, without reaching the question of whether the deduction was legal,* the Third Circuit ruled for Viacom.

The case is Freedman v. Redstone, the opinion is here. The author is Greenberg, joined by Fuentes and Van Antwerpen. Arguing counsel were Arnold Gershon for the shareholder and Stuart Baskin for Viacom.

Sigh.

* In a footnote, the Court notes, “Though we place only limited significance on this circumstance, the amount of compensation paid the executives was so large that it well may have come to the IRS’s attention. Yet so far as we are aware, the IRS did not challenge the compensation’s deductibility.”

“Several of the figures most central to the region’s mortgage fraud problem cooperated with prosecutors, and got non-prison sentences.”

The Pittsburgh Post-Gazette and Duquesne’s law school recently teamed up to study mortgage-fraud prosecutions in WDPA. The upshot was two articles last weekend, here and here. Two related stories here and here.

Sentencing policy is getting long overdue attention (including at the recent CA3 judicial conference), and NACDL among others is tackling the trial penalty head-on, so this is a timely study.

Core findings:

• Leniency for cooperation was doled out liberally. At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward “substantial assistance” to the investigation. That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.

• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months. By contrast, defendants who pleaded guilty but didn’t provide substantial assistance to prosecutors, got average sentences of three years in prison. Those few who went to trial faced an average of 6½ years behind bars.

• Several of the figures most central to the region’s mortgage fraud problem cooperated with prosecutors, and got non-prison sentences. For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house. Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.

Hat tip: Douglas Berman’s Sentencing Law & Policy, which observes here, “I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.”

Upcoming oral arguments

Doesn’t everyone who clerks for a federal appellate judge daydream about arguing in front of the judge s/he clerked for? Next week, Brian Rabbitt gets to live the dream. He clerked for Hardiman in 2009-10, and on Wednesday he’s arguing before a panel of Hardiman, Scirica, and Roth. Rabbtit is an associate at Williams & Connolly. The case is Carlyle Investments Management v. Moonmouth Co., 13-3526.

Two other appeals (one criminal, one immigration) will be argued the same day with the same panel, the only panel sitting next week. Calendar here.

Katzin en banc oral argument audio

Audio of this morning’s en banc argument in USA v. Katzin is up already, here. Katzin is a high-profile Fourth Amendment case. The specific issue at argument was application of the good-faith exception to warrantless vehicle placement of a GPS, a search not covered by binding precedent. My argument preview is here. Lead EDPA appellate AUSA Robert Zauzmer seems likely to extend his impressive en banc win streak; in my opinion he’s one of the top oral advocates regularly appearing in CA3.

Chief Judge McKee offered a characteristic practice pointer, commending Zauzmer for admitting that he was seeking a slight extension of a particular case, noting “lesser advocates would not have done this.”

Catherine Crump argued for the defendant (starting at 27:50 in the audio). At the close of argument, McKee described her argument as “phenomenal.”

For more, early AP news coverage here.

 

Panel rehearing grant in CA3-cert case

No CA3 opinions today, but an arcane order granting panel rehearing and vacating the prior panel opinion in United Industrial, Service, Transportation, Professional & Gov’t Workers of North America Seafarers Union v. Gov’t of the Virgin Islands. Arcane, because this case came to CA3 not as an appeal but rather on writ of certiorari to the Supreme Court of the Virgin Islands (what, you mean you haven’t read CA3 L.A.R. 112?). The rehearing petition, here, argued that the lower-court decision should be vacated as moot due the death of a party.

Appellate lawyering, and darling-murder

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Murder in the House, by Jakub Schikaneder (public domain / Wikimedia Commons)

Today, some thoughts about appellate advocacy. Specifically, about the difference between Great Lawyers and great lawyering.

There are lots of brutally bad federal appellate briefs out there, so it’s a relief to read a brief by a Great Lawyer. It’s a brief that makes you say, “wow, here’s a mighty smart lawyer who worked mighty hard.” A masterful brief, with law-review-worthy string cites and soaring prose, a rich vocabulary and clever allusions, all spiced with a devastating put-down or two to add zing. A Great Lawyer writes even obviously marginal issues with panache and erudition. Those are the briefs whose writers command attention and rise above the dreck.

But that’s not great lawyering.

Great appellate lawyering is harder to spot than Great Lawyers because it works very hard to hide and disguise itself. When I look at great lawyering in a circuit appeal, all I notice are easy issues. Great lawyering is a brief you finish reading and say, “any clown could win an issue this simple and clear-cut, how come I never get cases like this?” Great lawyering results in a lot of unpublished circuit opinions, unsexy little victories no one will notice, except for the clients.

Great appellate lawyering is recklessly ethical because it subordinates the lawyer’s interest in dazzling to the clients’ interest in winning. It is irrational because it takes more work than most clients or courts will pay you for. It isn’t brilliant, it is relentless — relentless in finding a winning point, relentless in pruning away the weaker issues and arguments, relentless in transforming good-enough fourth drafts into clear and persuasive briefs.

I used to write to impress other lawyers; now I write to persuade judges. It’s harder than it looks. Here’s a quote that helped light the way:

[I]f you require a practical rule of me, I will present you with this: Whenever you feel an impulse to perpetrate a piece of exceptionally fine writing, obey it — wholeheartedly — and delete it before sending your manuscript to press. Murder your darlings.

Weev postscript

I posted here and here about hacker Andrew “Weev” Auernheimer’s recent Third Circuit win vacating his conviction. Now, Staci Zaretsky at Above the Law reports that Auernheimer has sent his trial judge, prosecutors, and FBI agent an invoice requesting (“PAY ME MY MONEY, YOU LYING SUBHUMAN GARBAGE”) $13.2 million for his time behind bars.

Report, with the full “entertainingly trollish” letter, here.

New opinion — high-low agreement enforcement

During a civil trial, the parties entered into a high-low agreement — regardless of the outcome, the defendant would pay no more than $2.7 million and no less than $900,000. After the jury returned an $8.6 million verdict, the plaintiffs asserted that the defendants had breached the agreement. The defendants moved to enforce the agreement, but the trial judge ruled that it lacked jurisdiction to resolve the issue. Today, CA3 reversed, and it remanded to let the district court decide whether the deal was breached.

The case was Bryan v. Erie County Office of Children & Youth. Opinion by Fuentes, joined by Fisher and Stark D.Del. by designation. Arguing counsel were Sheila Haren for the trial defendants and Jay Paul Deratany for the plaintiffs.

 

CA3 cert case stiiillll pending

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The lone CA3 case pending before the Supreme Court is term is proving to a stumper.

Over a month ago, I wrote:

In the current term (OT 2013), only 1 CA3 decision had cert granted: Bond v. US, a treaty-power criminal case making a return trip to Scotus. Bond was argued in the Court back in early November but no opinion yet; it is the second-oldest argued case awaiting decision, and it appears the author will be Roberts or Kennedy (my money’s on Kennedy, reversing again).

Bond still hasn’t come down, and it now is the oldest undecided Scotus case. My author prediction was wrong: Roberts is the only justice who hasn’t authored a November-argument case, so it seems clear he assigned Bond to himself. I’m sticking with my reversal prediction.

New opinions — two civil-rights appeal reversals

Two opinions today, both appeals from 1983 suits, both reversing in part.

The first involves a police-misconduct 1983 suit arising out of shocking facts, shocking enough that a jury awarded $2.7 million damages. And after a remittitur motion, a second jury awarded $4 million. A second remittitur motion followed, but instead of ruling on that motion the district court just reinstated the first verdict. CA3 reversed, instructing the district court to reinstate the second verdict and then rule on the second remittitur motion.

The case is Lesende v. Borrero. Opinion by Cowen, joined by Fisher and Scirica. Arguing counsel were John Scott for the defendant city and Robert Kobin for the trial plaintiffs.

The second is another police-misconduct suit where a state police officer went around to the back of a property without trying the front door but argued that his warrantless entry was covered by the “knock and talk” exception. The district court denied the plaintiff’s motion for judgment as a matter of law on unlawful entry and the jury ruled for the officer. CA3 reversed, holding that the officer violated the Fourth Amendment as a matter of law and was not entitled to qualified immunity.

The case is Carman v. Carroll. Opinion by Fuentes, joined by McKee & Schiller EDPA by designation. Argument audio here. Arguing counsel were Barry Dyller for the trial plaintiffs and Deputy AG Sean Kirkpatrick for the officer.

UPDATE: Julie McGrain has a helpful write-up of Carman at Federal Defender Third Circuit Blog, here.

Judicial conference wrap-up

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Yes, this really is the Hershey Lodge’s bathroom wallpaper.

Last week was the Third Circuit judicial conference in Hershey. I was there. A few hyper- hyperlinked thoughts:

  • The circuits have come under fire for their judicial-conference spending (CA9 held theirs in Maui in 2011: oops), but I saw nothing to criticize here. Especially since CA3 foisted the cost of receptions off on outside groups including the Third Circuit Bar Association. I agree with Justice Kennedy that “The circuit conference is a prudent and proper exercise of the judicial function.” Even in this time of federal judicial budget struggles, judges and lawyers need a forum to grapple with systemic legal issues,.
  • Chief Judge McKee’s influence on the program was evident and, in my opinion, very positive.
  • Justice Alito: budding stand-up comedian. I did learn two things from his talk: (1) the Court has an internal deadline of the end of May for majority opinions and June 15 for dissents, and (2) the Justices have a no-talking-about-cases-at-lunch rule. During Alito’s talk, I kept rolling my eyes and mouthing “Not true,” but no one noticed.
  • SG Verrilli said the reason the US sided with the town in the recent legislative-prayer case was Congress’s interest in keeping its own opening prayers. I found that wacky, but this time I kept it to myself.
  • EDNY judge John Gleeson stole the show with his talk on innovative sentencing. Sixty-year-olds aren’t Scotus nominees, but Gleeson sounded Scotus-caliber to me.*
  • Cheryl Krause, whose CA3 nomination is pending before the full Senate, was there, often with a sitting judge or 2 at her side. On the rumor front, I overheard that Becker’s district court chambers have been designated for her, which may reflect the confidence that she’ll be confirmed.
  • Screened at the conference was a documentary film on criminal re-entry called Pull of Gravity. Website here, trailer here, reaction video here. The odd part: the Philly US Attorney’s office was the film’s executive producer (what sequester?), and Executive AUSA Robert Reed is its biggest champion. The good part: the film itself is eye-opening and honest. Look for it.
  • If you’re in Hershey for a meal, try Troeg’s Brewery tasting room; Nugget Nectar is the beer-nerd choice.

* Update: for more on mandatory minimums, see yesterday’s thoughtful post at Hercules & the Umpire.

New opinion — NJ professional-suit appeal

New Jersey has a statute that says that, if you want to sue a licensed professional for negligence or malpractice, you need to find a like professional to vouch for your claim. CA3 today ruled that this requirement applies to an intentional tort claim seeking money damages, a result it admitted was “counterintuitive (one may argue illogical),” affirming the district court’s dismissal.

The case is Nuveen Municipal Trust v. Withumsmith Brown. Opinion by Ambro, joined by Vanaskie and Aldisert. Arguing counsel were Robert Heim (who was impressive on a class-actions panel at the CA3 conference last week) and Scotus regular Eric Brunstad for the appellant; Michael Canning, Donald Campbell, and Louis Modugno for appellees. Goes to show that the side with the superstar lawyers doesn’t always win.

For more: Bruce Greenberg’s New Jersey Appellate Law blog analysis here.

New opinion — tax reversal

CA3 reversed today in a tax appeal, holding that the district court erred in summarily denying the taxpayer’s estate’s argument that a tax expert’s mistaken advice excused its late payment.

The case was Estate of Thouron v. US. Opinion by Ambro, joined by Hardiman and Greenaway. Arguing counsel were Maureen McBride for the estate and Jonathan Cohen for the government.

Upcoming oral arguments

A panel of McKee, Chagares, and a shifting third (Nygaard, Garth, and Thompson of DNJ) is sitting for arguments in Philadelphia next week. Schedule for the sitting here.

Two recent CA3 clerks will be arguing; both are law firm associates appearing pro bono. Hardiman alum Michael Glick will argue Scott v. Warden on Tuesday, and 2007 Fisher alum Paige Foster will argue Siluk v. Merwin on Wednesday. Welcome back to both.

Also next week there’s a capital habeas argument on Tuesday in Michael v. Wetzel. CA3 remanded Michael’s case in 2006 for a competency evaluation. The panel is Ambro, Greenberg, and Nygaard. Arguing are Amy Donnella for the Philly CHU and James Barker for the AG.

Finally, this week there are two panels sitting out-of-town, one in Pittsburgh and one in the Virgin Islands. Some clerks bitter, some happy …

New opinions, including 2 without oral argument

Three published opinions today, which goes to show that someone’s been working even as the Judicial Conference wraps up today. Two of them were decided without oral argument, which is unusual.

First is US v. Smith, which, without argument, reversed a restitution order imposed at resentencing on the ground that restitution was outside the scope of the remand. A remand to consider specified sentencing issues does not authorize the sentencing court to revisit other sentencing issues, even if both parties urge the revisiting. The court also affirmed on several other issues. Any published opinions without oral argument are uncommon, and criminal-appeal reversals without argument are rare.

Opinion by Barry, joined by Sloviter and Hardiman. Arguing counsel for Smith was Peter Levin. Three other defendants also were on the appeal  (disclosure: one of the co-defendants was a co-defendant of one of my clients in an unrelated prosecution).

The second opinion today also is a criminal appeal, US v. Harris aka Pickle. Harris pled nolo contendere but sought an offense-level reduction for acceptance of responsibility. The court held that a nolo plea does not automatically bar the reduction, but affirmed denial of the reduction here.

Opinion by McKee, joined by Fisher and Sloviter. Arguing counsel were Joseph Yablonski for the defendant and Jane Dattilo for the government.

Third up is an immigration appeal, Capadan v. Attorney General. This opinion was released back in March as an unpublished opinion; today the court granted the AG’s motion to reissue as a precedential opinion. Unpublished opinions that break new ground do happen, and Capadan is a reminder that the court sometimes will publish if you ask. The court affirmed, holding that a PA conviction for indecent assault is an aggravated felony supporting removability.

Opinion by Rendell, joined by Smith and Hardiman. No oral argument, but counsel were Valerie Burch for Capadan and Christina Martin and Carmel Morgan for the AG.

 

New opinion — arbitration clause interpretation

CA3 reversed today in an insurance-coverage appeal. The district court had held that the claims fell under an arbitration clause and dismissed the suit. CA3 reversed and remanded. The court noted “concerns about the policy implications of forcing a provider to arbitrate participants’ claims against an insurer,” because the insurer’s position “trivializes the important public policy interests served by permitting providers to bring such claims on behalf of plan participants.”

The case is Cardionet v. Cigna Health, opinion here. Opinion by Fuentes, joined by Fisher and Stark D.Del. Arguing counsel were Mark Gallant of Cozen for the provider and Paul Hummer of Saul Ewing for the insurer.

Denial of en banc rehearing in consumer-class-certification appeal

CA3 denied rehearing en banc rehearing Friday in a high-profile case involving products-liability-suit class certification. Ambro, joined by McKee, Rendell, and Fuentes, dissented from the denial. Given CA3′s track record shaping class-action law, I doubt we’ve heard the last of this issue.

The panel opinion is Carrera v. Bayer Corp. The en banc denial and dissent are here. The panel opinion built on a prior CA3 case, Marcus v. BMW. Ambro wrote Marcus, so his dissent here carries special force: “Several amici — including this country’s most recognized expert on procedure, Arthur Miller — warn that Carrera threatens the viability of low-value consumer class action ‘that necessitated Rule 23 in the first instance.’” Ambro  also urges the Rules Committee to take a look.

A blog post about the denial and dissent by Bruce Greenberg of New Jersey Appellate Law blog here. He’s the one who uploaded the rehearing denial; he thinks the dissenters are right. Hat tip also to Howard Bashman’s How Appealing.

One year on the court: Judge Shwartz — introduction

The Third Circuit’s newest judge, Patty Shwartz, has now been on the court for a year. One year isn’t long enough to give a full picture any judge, but it’s a start.

Good lawyers know their judges. It’s one of the advantages lawyers have who do a lot of CA3 appeals. They have a better sense of how a judge will approach their case, how she handles oral argument, whether she’s likely to be the swing vote on their panel, even whether she’s reachable with an en banc petition. CA3 regulars have that sort of knowledge about Rendell, Smith, and Sloviter, but most don’t know Shwartz as well yet.

So over a series of posts, I’ll take a closer look at Judge Shwartz and her first-year body of work — the opinions she’s written, opinions she’s joined, and her oral arguments. To be clear, I don’t suggest there’s anything unusual about Shwartz here; as other judges join the court, I plan to do one-year summaries for them, too.

Quick follow-up on habeas reversal rates

I posted yesterday about CA3′s dropping reversal rate. I noted the overall drop was driven by a dramatic drop in CA3′s reversal rate for prisoner-petition appeals, including habeas, and I hypothesized that two 2011 Scotus habeas opinions might help explain why.

I was floored by what I’d found. Here’s a little more perspective from the other circuits. I’ve limited the years and focused on private-prisoner-petition cases, which includes habeas but does not include 2255s:

So CA3 was not the only circuit that dramatically lowered its reversal rate between 2011 and 2012: so did CA1, CA4, CA5, and CA7. And between 2012 and 2013, the reversal rate dropped in all 11 circuits.

Indeed, adding a couple more years’ data, it’s notable how similar the curves for CA4, CA5, and CA7 are to CA3′s:

2011 peaks, 2012 plunges. This still doesn’t prove that Richter and Pinholster caused the reversal-rate drop, but it does confirm that CA3′s experience is not unique.

* I’ve omitted the DC circuit due to their tiny numbers in this category. They had 12 cases and affirmed in all.

New opinions — criminal sentencing plain error, pre-emption

Two published opinions today.

In U.S. v. Tai, CA3 found plain error and remanded because the district court applied the USSG role enhancement without any finding that another participant was criminally culpable. The court denied other plain-error challenges.

Opinion by Shwartz (her 7th since joining the court), joined by Fuentes and Rosenthal SDTX. Arguing counsel were Peter Goldberger for the defendant and Paul Shapiro for the government.

In In re: Fosamax, the court affirmed dismissal of state-law product liability claims on pre-emption grounds. Remarkable to see an appeal where, on one side, an associate did the argument, and on the other side it was an NLJ top-100 lawyer backed by a big-firm who’s-who. Guess who won.

Opinion by Jordan, joined by Vanaskie and Greenberg. Arguing counsel, both out-of-circuit, were Brandon Bogle and Jay Lefkowitz.

New opinion — declining declaratory judgment jurisdiction

In today’s lone published opinion, CA3 affirmed a district court ruling declining jurisdiction over a suit under the Declaratory Judgment Act. The court answered in the affirmative a “question of the ‘outer boundar[y]‘ of a district court’s discretion under the DJA, specifically whether a district court may decline jurisdiction over a declaratory judgment action when there are no parallel state proceedings.”

The case was Reifer v. Westport Insurance Corp. Opinion by Van Antwerpen, joined by Fuentes and Greenberg. Arguing counsel, both out-of-circuit, were Christopher Wadley for the insurance company and David Knauer for Reiffer.

A closer look at reversal rates — habeas is the big news

The suddenly famous Ellen Brotman commented here yesterday that CA3′s 5% reversal rate was lower than previous years. Very true. Reversals are dropping, led by a freefall in CA3 habeas reversals. I’ve whipped up some quick graphs to illustrate.

First, CA3′s overall reversal rate over the last 13 years:

At first glance that looks like a steep, steady drop. But notice that two years — 2006 with its 28% reversal rate, and 2013 with 5.4% — are outliers. Eight of the 13 years fall between 9% and 12%.

Here are CA3′s reversal rates for the two largest categories of cases, criminal and private civil:

So civil reversals are dropping, while criminal reversals spiked in 2006* but have otherwise have held relatively stable. Bottom line: private civil and criminal appeals don’t explain the 2013 reversal-rate plunge.

To get the plunge, we need to look at prisoner post-conviction appeals.** Here there are two groups: 2255 petitions for federal convictions, and habeas corpus petitions for state convictions. The numbers are startling:

Look at that habeas relief rate, the red line. For 10 years 2002 to 2011, CA3 reversed over 12% of cases every year, peaking in 2011 at 16%. Then, the elevator shaft: 6% in 2012, 3% in 2013. That’s a historic shift happening before our eyes.

Now look at the blue line, which is post-conviction challenges to federal convictions. Except for 2009,* that’s been a fairly steady downward trend, but now “downward” has become “dream on, appellant.” CA3′s 0.8% reversal rate was the lowest of any circuit in 2013. In fact, it was the lowest one-year reversal rate of any circuit since 2004. Hard to believe.

Aside: what explains this abrupt drop in post-conviction reversals? Did district court judges suddenly get more perfect? Unlikely. Did a landmark case require appeals courts to defer more to district courts? Don’t think so. On the habeas side, there were two big 2011 decisions (Richter and Pinholster) that make it harder for courts to grant habeas relief (and another one last week); if district courts started denying everything in 2011 and CA3 started affirming them all when they arrived on appeal a year later, the drop in habeas relief would make sense. I haven’t found habeas relief-rate stats, so that’s only hypothesis, and it shouldn’t explain the 2255-reversal-rate drop. But I strongly suspect the difference is that CA3 is now affirming a lot of denials that, in past years, it would have reversed.

Anyway. So how does CA3 compare to its sister circuits? Here’s a comparison of CA3′s overall reversal rate vs. the rate for all circuits:

Until the last couple years, CA3 was reversing more often; not any more. Here are the criminal and private civil reversals, CA3 and for all circuits:

Nothing too startling. Other than 2006, criminal and civil reversals nationally have been steady. Here’s a comparison of CA3 habeas and 2255 reversal rates vs. all circuits**:

So habeas & 2255 reversals are dropping sharply nationwide. And CA3′s big habeas-reversal drop (red) brings it in line with the national average (green) after a decade of above-average reversing.

Update: I have more analysis of habeas reversal rates in other circuits here.

The source for all this data is here and here — the table I used is B-5, the lines I used are criminal, U.S. prisoner petitions (which I’ve called 2255), private prisoner petitions (which I’ve called habeas), and other private civil.

* I assume the first big CA3 reversal spike — criminal direct appeals in 2006 — is the result of Booker‘s holding in 2005 that Apprendi applies to the Sentencing Guidelines. I don’t know offhand what caused the second CA3 spike, for 2255 appeals in 2009; nationally, the 2255 reversal rate went down that year.

** Update:  The available numbers defy precise answers, and the stats I’ve posted obscure some of the complexity. The stats I gave above for 2255 cases actually are the stats for all US prisoner petitions. That includes 2255s, but, it also includes prisoner civil rights and conditions cases; roughly, 2255s were about 84% of the category nationally. The same caveat applies to the habeas stats I gave; in 2013 habeas cases were about 55% of their category. (Source: 2013 table B-7). Bottom line, it’s no easy thing to pin down causes of the drop in reversals.

 

 

Financial disclosure trivia

Federal judges annually report their outside income, investments, gifts, debts, and the like. Yesterday the Center for Public Integrity posted a searchable database collecting federal appellate judges’ disclosures. Litigants can double-check judicial recusals (financial conflicts are missed in a small number of cases: CPI report here, AP story here, apparently no CA3 judges goofed Update: actually, CPI identified a 2010 financial conflict involving Judge Roth; Bruce Greenberg’s New Jersey Appellate Law blog reports that the parties were notified and did not respond). Or just snoop.

For CA3 judges, I saw no scandal in the database but a couple interesting facts:

  • Barry is by far the wealthiest circuit judge in the country (reportedly through her father, not her kid brother)
  • Greenaway is the only CA3 judge with credit-card debt
  • Fordham Law paid Shwartz only $2,500 for teaching (c’mon, Fordham, that’s less than a tenth of what Seton Hall paid Chagares)
  • Scirica redacts a lot, and
  • Aldisert isn’t getting rich off of Winning on Appeal

Hat tip: Howard Bashman at How Appealing and Bruce Greenberg at New Jersey Appellate Law.

Reversals compilation 2014

This post will compile all 2014 CA3 published reversals. It is current through July 11.

Civil

Criminal

Civil Rights

Immigration

Habeas & 2255

Bankruptcy

Other

New opinion: landmark civil-rights suit win

“The facts underlying this appeal — many of which are undisputed — are hardly believable.” So begins the Third Circuit’s opinion reinstating Byron Halsey’s § 1983 claims, including malicious prosecution, arising from his wrongful conviction and 22 years’ imprisonment. Halsey falsely confessed. “Except when an innocent defendant is executed,” the court wrote, “we hardly can conceive of a worse miscarriage of justice.”

The case was Halsey v. Pfeiffer. The opinion was by Greenberg, joined by Jordan and Vanaskie. Arguing counsel were David Rudovsky for Halsey and Michael Simitz for the defendants. Oral argument audio here.

That’s the 7th published reversal this month, against only 4 published affirmances.

Judges are people too

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Judge Richard Kopf

I’m a huge fan of D. Neb. Judge Kopf’s Hercules and the Umpire blog. Vibrant and unflinching. His theme: judges are people, and even smart people trying their damnedest to get it right sometimes don’t. That’s not CA3blog’s theme, but I do say appellate lawyers need to understand judges better. For that, Kopf is essential.

Recently, Kopf and Scott Greenfield at Simple Justice have been blogging back and forth about sentencing and clemency. Kopf regrets a harsh drug sentence he once imposed on a defendant named Hasan, Greenfield finds it “incomprehensible” a judge would impose a sentence he knew was unfair: “I would like to believe that they could have put a gun to my head and I still would have refused to impose a sentence I thought to be too harsh, but then, that could explain why I was never made a federal judge.”

Here’s Kopf’s response today, a comment posted on Simple Justice:

Your concluding remarks are important. I hope everyone thinks hard about them. How in the hell could any sane person impose a life sentence on Hasan or even a sentence of 324 months. I did so, as a very young judge, and I wrote a long opinion explaining why. But I do want you to know that I came close to concluding “hell no” and saying I hereby quit this stupid fucking job. But, I was, as Lorin Duckman pointed out gently to me while using different words, a “good German” judge.
I almost became an academic. I studied classic political thought. When I became a judge, I believed and understood that Congress had the right to set punishments and I had the obligation to enforce them in almost every circumstance. No game playing. Play it straight up. Do what Congress tells you because, and this is and was very important to me, the role of an unelected life tenured federal trial judge is very hard to square with democracy unless the judge’s role definition is greatly circumscribed. These thoughts were in mind in 1993—I really labored over that sentencing opinion. Ultimately, I concluded that Hasan participated in the sale of a shitload of crack and that crack ripped the lives of poor black people apart. Who was I to say that Congress was wrong and a life sentence was too harsh for someone who knowingly poisoned some of the least among us?
Those thoughts are still with me, but I much less certain about them. In fact, I [am] much less certain about every aspect of judging. And, that is why I write my blog. I have doubts about myself as a judge, and they are profound doubts. The People have every right to know about the frailties of judges like me. Your concluding remarks may well highlight one of my biggest failings.

Strong stuff.

New opinion: mayor’s conviction affirmed

CA3 today affirmed the conviction of the former mayor of Hamilton Township, NJ. He was convicted under the Hobbs Act and Travel Act for taking money to convince the local school board to use a no-bid contract for insurance. On appeal, he argued that he had no power over the school board so he wasn’t acting officially, but the court disagreed.

The case is US v. Bencivengo. Opinion by  Rendell, joined by Smith and Hardiman. Arguing counsel were Jerome Ballarotto for the defendant and Steven Sanders for the government. Argument audio here.

Update: a useful case summary and defender practice tip here, by AUSA Keith Donoghue at the Federal Defender Third Circuit Blog.

“I was ignorant of my own limitations”

Appellate advocacy is hard work. In some ways, the need for effort is obvious. Of course you have to put in the hours on each case learning the facts, researching the law, drafting and editing the briefs; of course you’re more likely to win if you outwork the other side.

But working hard on each case isn’t enough, not nearly. You also have to work hard on the skills of appellate advocacy, especially writing. Most of us don’t, and don’t even see the need. We’re like legal-writing professor Wayne Schiess:

When I was a full-time practicing lawyer, I thought I was a good writer. I believed I was above average within the profession. Now I see that I was quite mediocre, that I was poorly educated about the standards of high-level professional writing, and that I was ignorant of my own limitations.

Bryan Garner is right: “If you think you’re quite good . . . it’s probably a delusion.”

My own journey from self-satisfied to alarmed to improving has been helped along by books. The 3 most helpful to me:

Most such lists would include Strunk & White and Garner’s The Winning Brief. And any good CA3 enthusiast also would recommend Aldisert‘s glorious Winning on Appeal.

Appellate lawyers are professional writers.  Time we acted like it.

The bench of fire

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If I ever create an online legal dictionary, the entry for “hot bench” will just be a link to this recent argument. Holy moly. The case was Mayorga v. AG, a deportation challenge argued April 8.

Start at 8:30 (that’s AG counsel’s argument, after the panel sat Mayorga’s lawyer down early). The resignation in counsel’s voice by 9:09 is priceless.

The panel was Hardiman, Sloviter, and Barry. Arguing counsel were Tad Macfarlan pro bono (assigned by CA3 superstar David Fine) for the petitioner and Anthony Nicastro for the AG, and both did quite well considering.

Happy Friday.

My Scotus scorecard missed the shadows

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Photo by Hans / CC0 / Pixabay

Earlier this week I posted about how CA3 has fared lately in the Supreme Court. Nothing fancy, I just looked at CA3 cert-grants and reversal rates and how they compare to other circuits. As I said in my post, I just pulled these stats from Scotusblog, I even said it was “easy.”

Not so fast.

The sort of simple reversal-rate analysis I gave is misleading, argue John Summers and Michael Newman of Hangley Aronchick.* The Supreme Court resolves circuit splits; every time they do, they’re passing judgment on each circuit in the split, not just the one from which cert was granted. Summers & Newman call these ‘shadow decisions.’

To illustrate: imagine a circuit split with CA4 and CA5 on one side, CA9 on the other. Suppose Scotus grants cert from the CA5 case and affirms. Using simple analysis, only CA5 gets scored. Summers and Newman argue that CA4 and CA9 — the shadow-decision circuits — should, too. I agree.

Summers & Newman explained their method and findings on Scotusblog in 2012, here, and on Hangley’s Supreme Court Project page, here. And, of particular interest to me, they had a great short article in Legal Intelligencer in 2011 focusing on CA3, here. Applying their method to the 2005-10 terms, they found that CA3 had the lowest reversal rate of any circuit.

So now I’m eager to figure out how CA3 has done in shadow decisions since the 2010 term. And to find out more about the Hangley Scotus project. Stay tuned.

*  Howard Bashman used the same methodology back in 2006 (Report Card here) to score CA3 in the OT 2005 term. No idea who first had the idea. Summers & Newman are the ones spreading the gospel now.

A word on style & respect

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This blog is a sort of nerdy serial love-note to the Third Circuit. The last thing I want is to imply disrespect for the Court, so I want to explain one of my style choices.

When I refer to judges here, I generally don’t give titles or first names. So, not “The Honorable Theodore A. McKee, Chief Judge of the United States Court of Appeals for the Third Circuit,” not even “Chief Judge McKee.” Just “McKee.” Here’s why:

  • I refer to judges a lot here. Dropping the titles cuts a lot of clutter.
  • The audience I’m writing for is sophisticated. When I blog, I have in my head readers who know whom I mean when I say Sloviter or Scalia or Posner, and who aren’t scandalized by an inside-baseball tone.
  • It ain’t a brief, it’s a blog.

For similar reasons, I use “the court,” not “the Court.” If my choices seem disrespectful, please know that’s not my intent. If it bugs you (especially if your first name is The Honorable), tell me. I don’t claim to have it all figured out yet.

Stiegler

Notable pending asbestos appeal, and the argument red-light

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Photo by By Angie from Sawara, Chiba-ken, Japan (Flickr) / CC-BY-2.0 via Wikimedia Commons

One of CA3′s bigger pending cases, Williams v. BASF, was argued March 13. The defendants are accused of destroying evidence of products containing asbestos; key appeal issues include choice of law, waiver, and Anti-Injunction Act. One of the arguing attorneys was appellate star and former assistant solicitor general Kannon Shanmugam; another was Eugene Assaf, a former Weis clerk.

At the outset of argument (the audio file is here; panel was McKee, Ambro, and Fuentes), McKee noted the case’s complexity. He said, “I don’t usually ride the clock anyhow,” (0:16) and advised, “Don’t be surprised if the red light goes on and no one asks you to sit down.” (0:30). He wasn’t lying: the argument ran over 2 hours. (True story: a CA3 panel once laughed at me for saying my time had expired.)

I’m a mass-tort nerd from way back, so I’ll be watching the outcome here.

CA3′s Scotus scorecard

Scotusblog‘s extraordinary data trove makes it easy to see how the Third Circuit has fared lately in the Supreme Court. Answer? Pretty well.

In the five most recent completed terms (OT 2008 to 2012), Scotus granted cert to review 25 CA3 cases. Of these 25, they affirmed 10 and reversed 15, for a 60% reversal rate. The  overall Scotus reversal rate during that period of 73%. So CA3 is doing better there than other courts.

In the current term (OT 2013), only 1 CA3 decision had cert granted: Bond v. US, a treaty-power criminal case making a return trip to Scotus. Bond was argued in the Court back in early November but no opinion yet; it is the second-oldest argued case awaiting decision, and it appears the author will be Roberts or Kennedy (my money’s on Kennedy, reversing again).

Bond CA3 opinion here (Jordan for the court, concurrences by Rendell and Ambro — I’m surprised to see a Scotus-remanded case assigned to the junior member of the panel), audio of CA3 argument by former Solicitor General Paul Clement here.)

For the upcoming term (OT 2014), Scotus has granted cert in 9 cases so far, none of them from CA3.

Visiting judges visiting less

Over the last six years, CA3′s use of visiting judges – any judge who’s not a Third Circuit judge — has plummeted:

In raw numbers, visiting judges in 2008 sat on CA3 appeals 443 times; by 2013, they sat only 72 times.

Here is how the Third Circuit compares to the other circuits for 2013:

So CA3 (orange bar) is now at the low end, but CA5 and CA10 are even lower–and CADC used no visiting judges in 2013, for the 5th year in a row.

So the Third Circuit is using fewer visiting judges than it did, but why? It’s not due to fewer appeals. This chart below shows how many times a judge was assigned to a Third Circuit merits panel per year:

So judge-assignments in the circuit are rising, not dropping. The difference is that active CA3 judges are filling a lot more slots now: about 5,000 in 2008, over 6,500 in 2013.

So I don’t have an explanation, but the bottom line is more Third Circuit cases are getting decided by active Third Circuit judges.

Source: AOC Federal court management statistics, 9/13 / case participations

Two criminal-appeal reversals

Two published opinions today, both criminal appeals, both authored by non-CA3 judges, and both reversals.

First up, US v. White, reversing the denial of a motion to suppress possession of 2 guns. White’s home was sweep-searched incident to his arrest, even though the arrest happened outside the home; the district court erred by analyzing the search as if the arrest had been inside. Opinion by a D. Del. Judge Stark by designation, joined by Fuentes and Fisher. Argued by young-appellate-lawyer-to-watch AFD Keith Donoghue for the defendant, Paul Shapiro for the government.

The other was United States v. Velazquez, reversing on speedy trial grounds. Opinion by CA1 Judge Lipez, joined by Rendell, dissent by Jordan. Argued by Jerome Kaplan (of Beverly Hills!) for the defendant, Bernadette McKeon for the Government.

Upcoming capital habeas argument

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Photo by Lars Karlsson / GFDL / Wikimedia Commons

April’s last CA3 argument is this Thursday. Just 1 case: a capital habeas appeal brought by the Philly DA, challenging Judge Padova’s grant of habeas relief to “Sugar Bear” Lark based on racially discriminatory use of peremptory strikes in jury selection at trial in 1985. The case is Lark v. DOC, 12-9003.

CA3′s prior ruling in this case, a 2011 remand, is here. It contains this apt description of the complexity of habeas law:

We can understand why by this time a reader of this opinion would wonder whether we ever would reach the substantive issue on this appeal, i.e., did the District Court correctly grant Lark habeas corpus relief leading to his release or a new trial? But our long discussion of the procedural and jurisdictional issues was necessitated by the remarkable complexity of the law governing habeas corpus petitions which to a large extent is the result of the interaction of state and federal law inherent in our dual sovereignty system. In fact, solving the procedural and jurisdictional issues before we could reach the substantive issues on this appeal was a process much like solving Rubik’s cube.

Thursday’s panel will be McKee, Scirica, and Greenberg. Arguing counsel are CA3 veterans Tom Dolgenos of the Philly DA and Stu Lev of the Philly CHU.

Update: oral argument audio here.

A clue about who’s holding up the last nomination?

I’ve noted here and here that Scirica went senior last July but Obama still has not nominated anyone for his seat. A recent news story suggests that it’s not the White House causing the delay, it’s PA’s Republican US Senator, Pat Toomey.

According to a story in Tuesday’s Pittsburgh Post-Gazette, Toomey and PA’s other Senator, Dem. Bob Casey, are negotiating a deal. According to opponents of the deal, Casey would sign off on Toomey’s conservative pick for a W.D.Pa. seat, and in exchange Toomey “would defer to Mr. Casey on at least three of Pennsylvania’s other eight judicial vacancies.”

Both Senators refused comment for the story. One the deal’s opponents blogged on March 25 that the senators were expected to jointly forward Toomey’s district court pick to Obama “any day now.”

Hat tip: Howard Bashman at How Appealing.

 

Judicial conference registration fee goes up this week, and my embarrassing Verrilli story

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It will cost $55 more to register for the 2014 Third Circuit Judicial Conference if you wait until after April 18. Until then, its $480.

The conference is May 7-9 in Hershey. Current agenda here. Highlights include a talk by Justice Alito, a fireside chat with Solicitor General Verrilli, and a screening of the documentary Pull of Gravity.

Verrilli stars in one of my all-time embarrassing lawyer moments. A couple years out of law school, I played a minor role in helping a local lawyer prepare for a Supreme Court argument. Somehow I got to sit in on a moot in D.C. that Verrilli was hosting at Jenner. Any non-fool would have sat and learned, quietly. But no. There I was, earnestly explaining why I disagreed with Verrilli about something or other. His main reaction, I imagine, was pity.

So I’ll be there for his chat–silently.

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The fool

 

More appellate-rock-star oral arguments

While I’m on the subject of oral advocacy models, here are links to audio for a few other-circuit arguments by elite appellate advocates:

  • Gregory Garre, National Environmental Dev. v. EPA (D.C. Cir. Jan. 17, 2014)
  • Evan Tager, Bennett v. CSX Transportation (4th Cir. Oct. 29, 2013)
  • Paul Clement, Dupont v. Kolon Industries (4th Cir. May 17, 2013)
  • Miguel Estrada, Georgia Pacific v. Von Drehle (4th Cir. Feb. 1, 2013)

 

Oral argument done right in Weev

Yesterday’s Weev ruling reminded me of the fine oral argument given by his pro bono lawyer, Volokh Conspiracist and former Garth clerk Orin Kerr. Audio file here. It’s worth a listen, because Kerr gets a couple things right that a lot of CA3 advocates get wrong.

Kerr’s not treating questions like a nuisance detour from what he wants to be saying. At 2:11 and 3:23 and throughout, he shuts up to let the panel ask another question. So many lawyers try to head off questions, raising their voice and talking fast at the end of their answers to bull their way back into their prepared monologue. When we do that the judges aren’t even hearing our grand orations, they’re thinking about their grand questions and listening for a pause.

Under-prepared lawyers are afraid of questions. Our #1 goal in argument is Don’t Look Stupid, and we figure we’re on safer ground with the speech we prepared vs. the response we’re winging. Kerr’s not winging his responses, so he has the confidence to let the judges take him wherever they want to go all the way til 9:23. That’s rare.

Kerr’s preparation also shows in his direct, clear responses. Direct, like his first answer at 1:45 when the first words out of his mouth state the answer to the judge’s question, and then he gives his explanation. Lesser advocates don’t lead with direct responses, and it drives judges crazy. But getting there takes work: Chief Justice Roberts, who knows a thing or two about oral advocacy, says you need prepared answers to a thousand questions. Lots of us walk in about 990 short.

Finally, notice Kerr’s elegant intro. A crisp 40 seconds that gives the whole core of his argument.

For more:

Orin Kerr video interviews at scotusblog

Joining the CA3-blog party

 

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Party shoes. Espressolia / Pixabay / CC0

 

There are several fine Third Circuit blogs that helped inspire me to join the merriment. Together, we’ll surely fan the flames of CA3-mania to levels heretofore unseen.

So check out, in no particular order:

And, while not limited to CA3, Howard Bashman‘s How Appealing also is essential reading for any CA3 junkie.

The CA3 blogger with the best back-story by far is Findlaw’s Gabriella Khorasanee. She writes, “Began my career as a lawyer [she was a Nigro clerk and a Dewey Ballantine associate] and then decided to pursue my dreams of being a fashion designer. Now come full circle and I’ve taken my experiences as an attorney and fashion blogger, and combined them to be a legal blogger.” Blogging from Sunnyvale, CA, she also does Findlaw’s blogs on CA1, CA2, CA7, CA8, CA10, and CAFed. Which sounds like a lot, but it doesn’t keep her from also editing Mama’s International Secret Society, “a ladies’ online lifestyle magazine covering fashion, accessories, beauty, art, music, events, travel and cuisine and all the things we love.” I don’t know about M.I.S.S., but her CA3 blog is good stuff.

I have no fashion advice to give, but I’m glad to join the CA3-blog party.

 

McKee to the rescue

For those who missed it, a few months ago CA3 Chief Judge McKee played a central role in exposing another federal judge’s breath-taking misconduct.

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Richard Cebull

Richard Cebull was a district judge in Montana. He got caught sending an email with a racist Obama joke. The Ninth Circuit investigated and found that Cebull’s misconduct was far more pervasive than publicly known, and spelled it out in an order concluding Cebull violated judicial ethics. At this point, Cebull chose to retire, whereupon the Ninth Circuit vacated its violation order and decided not to release it to the public. “Moot,” they said.

Enter Chief Judge McKee. He petitioned, twice, to make the violation order public. He was refused by the Ninth Circuit. But he won. In January, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States — five circuit judges, including Scirica and the judge I clerked for, David Ebel — ordered release of the damning details. They wrote, “The imperative of transparency of the complaint process compels publication of orders finding judicial misconduct.”

The Committee’s order laying out the whole story, including McKee’s role, is here.

Feeder court? No.

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Photo by Mdf / GFDL via Wikimedia Commons

 

Feeder judges are judges whose clerks tend to get Supreme Court clerkships. Feeder courts have feeder judges. Ambitious law students pay a lot of attention to that, few litigants probably care.

But, because I’m a nerd for judicial inside baseball, I researched which Third Circuit judges are feeders. Answer: none, but Scirica is the closest.

Over the entire USSC careers of the 9 current Justices, 4 clerks a year each, they’ve hired a total of 15 former CA3 clerks (not counting Alito’s own former circuit clerks). But 6 of them clerked for judges no longer on the Third Circuit. Eight others clerked for judges who have since gone senior, which tends to dim one’s feeder cachet. So there has been exactly one Supreme Court clerk who came from a currently non-senior CA3 judge — Chagares sent one to Alito.

Focusing on recent hiring, the last 5 Scotus clerk-hiring cycles saw 5 former CA3 clerks hired:

  • 3 Scirica (2 Alito, 1 Breyer)
  • 1 Barry (Alito)
  • 1 Chagares (Alito)

That’s not in the same league as to the real feeder judges and circuits. In the 2013 hiring cycle alone, there were 15 CADC clerks, 6 CA9 clerks, and 5 CA4 clerks. Again just in 2013, uber-feeders Wilkinson, Kavanaugh, and Garland had 4 each.

Surprisingly, the district court judges in Philadelphia are almost keeping pace with the circuit judges. Brody had a clerk go on to Roberts last year and Baylson has one with Breyer now. And the legendary Pollak had 3 clerks go on to Scotus clerkships.

New opinion: Weev wins

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Weev self-portrait (weev at en.wikipedia)

 

The Third Circuit today vacated the conviction of Andrew Auernheimer, better known as “Weev” and generally described as a hacker and internet troll. The court held that the district court lacked venue. This was one of the circuit’s higher-profile recent cases. Quick writing: the argument was just 3 weeks ago.

Opinion by Chagares, joined by Greenaway and Vanaskie. Arguing counsel were Orin Kerr for Weev and Glenn Moramarco for the Government.

Kerr’s reaction post here.

Legal Intelligencer coverage here.

Update: I analyzed the Weev oral argument here.

Two other CA3 published opinions today:

  • reversing grant of summary judgment in a 1983 failure-to-train suit arising out of a NJ prison attack, opinion by Fisher joined by Jordan and Sloviter.
  • affirming denial of intervention in a Virgin Islands prison-conditions suit, opinion by Fisher joined by Cowen and Nygaard.

Why make attorneys justify doing online legal research?

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Attorneys appointed to represent indigent defendants are paid for their time and reimbursed for their case expenses. Among the most common case expenses are fees for doing online legal research using Westlaw or Lexis. But, to get reimbursed for that expense, lawyers are required by the Third Circuit (here, p. 9) to prepare a separate document with a “brief statement indicating the issue or issues that were the subject matter of the research” and an “estimate of the number of hours of attorney time that would have been needed to perform manual research.”

Manual research?

I have no idea how many hours it would take to do manual research, because every appellate lawyer on earth stopped relying on “manual research” over a decade ago. Court: I love you, but requiring lawyers to hop through this hoop for every bill they submit is silly. Would any judge hire a clerk who refused to use Westlaw or Lexis? It’s 2014 — the only lawyers who ought to be explaining are the ones who did a federal appeal without online research.

Why not also make us justify taking the train to court, when we could have come by horse and buggy?

 

Krause nomination goes to Senate

Cheryl Ann Krause’s nomination to the Third Circuit now is pending before the full Senate. She was nominated in February for Sloviter’s seat. She was ABA-rated unanimously well qualified, had her Judiciary Committee hearing March 12, and was reported out of committee by voice vote last week.

Krause is a partner at Dechert and teaches appellate advocacy at Penn. She clerked for Justice Kennedy and CA9 Judge Kozinski.

If confirmed, she’d be a noteworthy addition to the court in several ways. She’d be the only former Scotus clerk and the youngest member of the court, at 46. She also would be, to my knowledge, the only active judge with criminal defense experience (half of the active judges were prosecutors).

If Krause is confirmed, the court will still have one vacancy. Scirica went senior last July but the White House has yet to nominate someone. (Mr. President: I’m available. And none of my death row clients killed police officers, so I should be confirmable.)

For more:

Judiciary Committee questionnaire

Nomination announcement

Judgepedia entry

 

CA3 judges & who nominated them

There are 23 Third Circuit judges, 12 active and 11 senior.

Of the 12 actives, 7 were nominated by Democratic presidents–4 Clinton, 3 Obama. The other 5 all were nominated by George W. Bush. Of the seniors, it’s 3 Dems, 8 Republicans.

The Dem majority is a bit of a fluke. One of W’s nominees (Van Antwerpen) got his commission in 2004 and went senior in 2006, and Obama got to nominate his replacement (Vanaskie). On the other hand, over 5 years into Obama’s presidency the two youngest judges on the court (Hardiman and Chagares) are still both W nominees.

There are 2 vacancies. Sloviter went senior last June, Scirica last July. Cheryl Ann Krause (Kozinski and Kennedy clerk, Dechert partner and Penn professor) was nominated in February for Sloviter’s seat; her nomination was reported out of committee a week ago and now is before the full Senate. No nominee for Scirica’s spot yet.

 

2013 Statistics

The AOC has released the most recent batch of federal court data, for the year ending in March 31, 2013.

Some Third Circuit highlights:

  • the overall reversal rate was 5.4% (rate for all circuits was 6.9%, with the DC & 7th Circuits by far the highest and the 10th & 4th the lowest);
  • the reversal rate for private civil cases was almost twice as high as for criminal cases (10.3% vs. 5.3%);
  • less than 1% of federal-prisoner-petition appeals resulted in reversal, the lowest rate of any circuit; and
  • 3,720 cases were terminated. That’s about 3 cases per judge per week.

Nationally, the total number of cases filed has been dropping since 2006.

For more:

2013 federal caseload statistics

Past years’ stats

 

Upcoming en banc argument on GPS searches

The only en banc argument on the Third Circuit calendar is United States v. Katzin. The argument is set for May 28.

Katzin involves two related issues:

  1. Do police need a warrant to attach a GPS to someone’s car? and
  2. Do the fruits of a warrantless GPS search get suppressed?

All 3 panel judges agreed that a warrant is required, and the majority held that the fruits must be suppressed per the exclusionary rule. No circuit had reached either issue.

The panel author was Greenaway, joined by Smith; Van Antwerpen dissented. Arguing counsel were Thomas Dreyer and Rocco Cipparone Jr. for the appellants, Catherine Crump for amici ACLU and NACDL (with CA3 superstar Peter Goldberger on brief), and Robert Zauzmer for the Government.

For more:

 

 

My favorite writing quote

Look for the clutter in your writing and prune it ruthlessly. Be grateful for everything you can throw away. Reexamine each sentence you put on paper. Is every word doing new work? Can any thought be expressed with more economy? Is anything pompous or pretentious or faddish? Are you hanging on to something useless just because you think it’s beautiful?

Simplify, simplify.

William Zinnser, On Writing Well