New opinion — gay man’s fear of persecution not enough to prevent his deportation

Gonzalez-Posadas v. AG — immigration — petition denial — Jordan

A Honduran man challenged his removal by arguing that he would face anti-gay discrimination in his home country. The immigration judge “concluded that the events complained of, namely two unreported rapes, extortion by [a criminal gang], and exposure to homophobic slurs, were insufficient to establish past persecution or a risk of future persecution on account of sexual orientation.” After he lost his appeal to the Board of Immigration Appeals, he petitioned the Third Circuit.

In an opinion issued late yesterday, the Third Circuit denied the man’s petition, ruling that he had failed to prove that the rapes or the gang harassment were motivated by his sexual orientation and failed to substantiate his fear of future anti-gay persecution, although the court admitted that “other interpretations of the record are certainly possible.”

Joining Jordan were Chagares and Vanaskie. The case was decided without oral argument. The petitioner was represented by attorneys with Immigration Equality.



New opinion — insurance company wins policy-interpretation dispute

Torre v. Liberty Mutual — insurance — affirmance — per curiam

The Torres own land with a house on it. Both the land and the house were damaged in Hurricane Sandy. The insurer paid to remove debris from the house, but refused to pay to remove debris from the land. The insurance contract said, “we wil pay the expense to remove non-owned debris that is on or in insured property.” The Torres sued, the district court ruled for the insurer, and today the Third Circuit affirmed. It ruled that “on or in insured property” unambiguously referred to only the house, not the land.

The panel was Ambro, Vanaskie, and Sloviter, and the case was decided without argument.

New liberal report: “Republicans bringing judicial confirmation process to a standstill”

Yesterday the Alliance for Justice issued this report, summarized here, criticizing Senate Republicans’ failure to fill federal judicial openings, including the Third Circuit judicial-emergency seat for which L. Felipe Restrepo has been nominated.

From the Alliance report:

Rather than working to ensure that our federal courts have enough judges to fairly administer justice, Republicans have adopted a slow-walk approach at each point of the nomination and confirmation process—from working to fill vacancies in their own states, to processing nominees through committee, to holding confirmation votes on the Senate floor. As a result, vacancy numbers are once again rising, and the number of “judicial emergencies”—vacancies on courts that right now lack enough judges to handle their caseloads—has nearly doubled.

The report notes that the Third Circuit seat has now been vacant over 630 days, longer than any circuit seat with a nomination pending before the Judiciary Committee.

The Alliance report also criticizes a Wall Street Journal editorial (available free here) from this past Sunday’s paper that said:

[A] fruitful area for resistance may be on Mr. Obama’s appellate-court nominees * * *. Simply refuse to confirm all of his appellate nominees until he stops abusing his power. * * *

The President and liberals would protest, but the public would barely notice. * * * In 2017 a Republican President would still have more judicial openings to fill.

Perhaps the standstill has only begun.

That crazy pro se appeal by the congressman’s son isn’t looking so crazy after all

When a pro se criminal defendant files an interlocutory appeal asking the Third Circuit to stay his prosecution so that he can file pro se appeal to argue why his indictment should be dismissed, his odds of success are more or less zero.

But not actually zero, we now know, because earlier this month the court stayed the criminal prosecution of Chaka Fattah, Jr., son of the embattled member of Congress, and ordered expedited briefing. Today Fattah filed his pro se opening brief.

Fattah is not a lawyer; reportedly he has a high-school education. I skimmed his brief, and I’ll go on the record right here: in a battle of untrained brief-writers between Fattah and that chief executive whose petition recently drew Supreme Court ire, Fattah would kick Mr. CEO’s butt.

He’s an avid reader of CA3blog, he told me today by telephone, describing with enthusiasm how my post on Bashman’s brief taught him the importance of proper en-dash use. (!) This supports my heretofore-secret belief that my blog is more useful than law school.

The government’s brief is due April 7. The case is calendared for May 21. The chances that the court will allow a pro se defendant to orally argue his appeal are zero …

… more or less.

Transcript lost, defendant lost

Kareem Russell was tried and convicted of a crime in federal court and sentenced to prison for seven years. (Full disclosure: I think Russell was a co-defendant of a  Third Circuit client of mine in an unrelated case.) Then he wanted to appeal — but something went badly wrong with his trial transcript.

First, getting the transcript from the court reporter required “protracted attempts.” Then, when he got the transcript, it was a disaster: “a rough transcription replete with mistakes and omissions.” And court reporter wouldn’t turn over the audio recordings. The government “investigat[ed] the court reporter and r[a]n[] a forensic examination of her laptop.” In the end he got a transcript of the first and third days of the trial, but no transcript for day two, on which three prosecution witnesses testified.

What a disaster. I can’t imagine the frustration I’d feel if this happened to my client, or my father, or my son.

The whole reason transcripts exist is to provide a clear record of what happened at the trial. Without a transcript, it’s harder to tell if there was reversible error or not. So who pays that price?

The Third Circuit answered that question again (alas this is not the first lost-transcripts case) in an unpublished opinion last Friday in United States v. Russell, with the facts as stated above. Russell lost, because “to be successful with an argument that because a portion of the trial transcript is missing the case warrants reversal, a defendant must make a specific showing of prejudice.” (internal quotations and alterations omitted). And, without the transcript, the defendant was unable to make that “specific showing.” Naturally.

That is a correct application of binding circuit precedent, but it is disturbing still.

Disturbing too is the idea that this same court reporter (she is unnamed in the opinion, unhelpfully) may have transcribed other cases. If, in one case, a reporter produces a transcript filled with gaps and mistakes and partial audio can be recovered only after a forensic scan of her laptop, how could you be confident about any transcripts this reporter produced in other cases around that time? Has the court done a review? Have the litigants and counsel in those cases been notified?


New opinion — 29 pages of ERISA

Cottillion v. United Refining — ERISA — affirmance — Ambro

The Third Circuit today held that a company violated ERISA when it failed to give its retirees a benefits-adjustment it had promised. I’m pretty sure one of Ambro’s clerks cried when he told them he’d assigned the opinion to himself.

Joining Ambro were Chagares and Vanaskie. Arguing counsel were Christopher Rillo for the company and Tybe Brett for the retirees.

A closer look at the Third Circuit’s recent en banc cases

Can a middle-school student be punished for wearing an “I ♥ boobies” bracelet to school? Can a defendant be prosecuted using evidence from a GPS tracker that police hid on his car without a warrant? Can police take DNA samples from everyone they arrest? These are among the questions that have led the Third Circuit in recent years to rehear cases en banc.

Since Chief Judge McKee became chief in 2010, the Third Circuit has issued 18 en banc rulings (they’re all listed at the bottom of this post). Looking at the court as a whole, a couple things jump out at me:

    • 18 cases in about 5 years isn’t many;
    • Of the 18 cases, 6 are criminal, 4 education (3 student speech, 1 due process), 2 immigration, 2 bankruptcy (both asbestos-related), 1 habeas, 1 class action, and 2 other civil cases. I expected more civil cases;
    • 5 of the 18 rulings were unanimous;
    • In at least 5, the court’s decision to go en banc was sua sponte. In at least 6, en banc rehearing was granted before the panel ruled; and
    • Of the 6 criminal cases, the government won 5.

Interesting, right? But I wanted to see how much these 18 cases can tell us about the ideology of the court and its judges. En banc cases are an especially useful lens because (most) every active judge votes in every case, so we can compare votes much more directly than we can in panel cases. Can votes in 18 cases tell us anything meaningful about the court or the judges? I’m not sure. But I’ve crunched some numbers so you can decide for yourself what, if anything, it all means.

Here’s what I did. For each case, I classified one side–majority or dissent–as liberal, one as conservative. In my scoring, liberals side with criminal defendants, students, consumers, etc.; conservatives side with prosecutors, corporations, etc. (I omitted a unanimous bankruptcy case, Grossman’s, that I couldn’t classify). Then I tallied the votes to find each judge’s percentage of liberal votes.

But some of the cases seemed more telling ideologically than others. So also I picked out 6 cases from the 17 that presented the clearest ideological divide–cases where it was clearest to me that liberals and conservatives would favor different outcomes –and ran the numbers for those cases separately.

The results? With apologies to my smartphone readers, here is a table with how the judges voted in the 17 cases:

En banc table graphic

Liberal votes in blue, conservative in red. (Gray means the judge dissented in part, black means the judge wasn’t on the court yet, white means the judge did not sit, presumably due to recusal). The names of the 6 more ideological cases are bolded. Again, links to all these cases are at the bottom of this post.

Overall, the liberal side won 10 times and the conservative side won 7 times.

Now let’s interpret. Here is how I’d characterize the voting records in ideological terms — judges with similar voting records are listed on the same line, from liberal on the left to conservative on the right:

More liberal


Smith / Fuentes

 Greenaway / Ambro

Rendell / Vanaskie / Jordan

Chagares / Fisher / Hardiman

More conservative

So, for example, the McKee-era en banc votes of Smith and Fuentes are more conservative than McKee and more liberal than Greenaway and Ambro, with Smith’s votes slightly more liberal than Fuentes’s.

Note that I’ve omitted Sloviter, Scirica, Barry, and Shwartz from this analysis. All were active for only part of this period, so their sample sizes were smaller. For what it’s worth, Sloviter’s profile was close to McKee, while Shwartz and Scirica were both close to Ambro.)

So–again, looking purely at votes in this body of cases–I’d describe the Third Circuit’s judges as 1 liberal (McKee), 4 moderates (Smith, Fuentes, Greenaway, Ambro, plus Shwartz so far), and 6 conservatives (Rendell, Vanaskie, Jordan, Fisher, Chagares, Hardiman). Krause has not voted in a decided en banc yet.

A few more thoughts on the ideology data:

  • The conservative judges were more predictable than the liberals. Chagares and Hardiman were the only two judges who never disagreed. And in the 6 most ideologically charged cases, 3 judges voted conservative every time, 0 voted liberal every time.
  • Smith’s moderately liberal en banc voting record is probably not what George W. expected; Vanaskie’s conservative record is probably not what Obama expected.
  • Rendell’s en banc votes do not align with her reputation. By my count, she voted with the conservatives more than half the time; and in the more ideologically charged cases, she voted with the conservatives two-thirds of the time.
  • Again, I’m not sure how much stock I put in the ideology analysis here. It’s a fairly small sample size, my choices about which side is liberal or conservative are debatable, and my choices about which cases are more ideological are debatable, too. Circuit judges regularly follow controlling precedent over their own policy preferences. En banc voting patterns may not match panel voting patterns. Bottom line, I think these numbers are interesting and suggestive, but far from definitive.

Anyway, so much for ideology. What does all of this mean for lawyers practicing in this circuit? Here are the conclusions I draw about Third Circuit en banc practice:

  1. Don’t get your hopes up. The court grants rehearing en banc in about 1 decided case in 1000. Federal Appellate Practice‘s observation applies here: “filing a petition for rehearing is a little like buying a lottery ticket. It most often will prove a waste of time and money. But occasionally–and sometimes unpredictably–it will produce an enormous return.”
  2. Your best hope for getting en banc rehearing might be to overrule a prior precedent. Of the last 6 CA3 en banc decisions, 4 overruled prior precedent. In 3 of those 4, the overruled precedent had made CA3 an outlier. Two other factors leading to recent en banc overrulings: subsequent CA3 and Supreme Court cases had eroded the precedent, and the precedent caused confusion and uneven results. The opinions provide a valuable roadmap for lawyers looking for effective arguments for en banc rehearing.
  3. Don’t wait until after the panel has ruled to argue why the precedent should be overruled. Panels lack the power to overrule prior precedent, so you may be tempted to hold your arguments about overruling a case for your rehearing petition. But these cases show that’s a mistake. When the Third Circuit grants rehearing en banc to overrule a prior decision, it usually does so before the panel rules, per 3d Cir. IOP 5.5.4  (requiring internal circulation of all published and split-panel unpublished opinion drafts). Of the 6 cases I see where the court overruled a precedent, rehearing was granted before the panel had ruled in 5; only once since 2010 has the en banc court overruled a precedent after the panel had ruled.
  4. Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

The 18 CA3 en banc cases since McKee became chief, from most recent to oldest, are:

US v. Katzin

US v. Flores-Mejia

Rojas v. AG

Al-Sharif v. US C&I

US v. Quinn

US v. Caraballo-Rodriguez

BH v. Easton SD

Morrow v. Balaski

Garrus v. Secretary

US v. Mitchell

Singer Mgt v. Milgram

Layshock v. Hermitage SD

US v. Blue Mountain SD

Sullivan v. DB Investments

In re Global Indus. Tech.

In re Grossman’s

US v. Rigas

Puleo v. Chase Bank

New opinion — court allows belated re-trial of a habeas winner

Wilson v. Secretary PA DOC — habeas corpus — affirmance — Hardiman

Today’s lone opinion involves a rare and interesting issue of habeas law.

The petitioner here “holds the remarkable distinction of having received writs of habeas corpus vacating not one, but two murder convictions.” First, in 2004, he got the district court to vacate his conviction for killing Swift. The court granted a conditional writ, vacating the conviction but allowing the Commonwealth to retry him within 180 days.

The prosecution did not retry Wilson for the Swift murder within 180 days, and Wilson remained in prison while Wilson continued to challenge his other murder conviction. That challenge succeeded too:  in 2009, the Third Circuit upheld the grant of relief in the second murder. (The two errors warranting relief were independent: Batson in the first case, Brady in the second. That’s depressing.)

Then, in 2010, the Philly DA moved to retry Wilson for the Swift murder. Wilson sought to block retrial in two ways: by moving to enforce the Swift mandate, and by seeking an unconditional writ under Fed. R. Civ. P. 60(b). The district court denied both requests, but Wilson appealed only the 60(b) issue.

Today, the Third Circuit affirmed, holding that Wilson was not entitled to 60(b) relief because he did not exhaust state remedies. The panel expressly created a circuit split with the Sixth Circuit on this point.

Joining Hardiman were Ambro and Greenaway. Arguing counsel were the formidable Michael Wiseman for Wilson and Thomas Dolgenos for the Philly DA.

A legal-writing resource

I recently came across this page collecting a series of articles from the ABA’s Litigation magazine by George Gopen. Their subject is legal writing.

In the first article in the series, Gopen writes:

The bottom-line question about writing quality is simply this: Did the reader get delivery of what the writer was intending to send? If the answer is “yes,” the writing was good enough; if it is “no,” the writing was not good enough. And it matters little how impressive or dazzling the writing seemed to be along the way.

To get control of writing, litigators must understand as much as they can about how the reader goes about the act of reading. It is insufficient to compose a sentence that is capable of being interpreted in the way that best serves your case. Instead you must compose it so the odds are as high as possible that an intelligent reader will be led to interpret it in the way you intended. We have all been taught writing according to what the writer should and should not do. The perspective should be shifted to consider what readers actually do. That will be the task of this series of articles.

Gopen’s top two points:

  1. readers have an easier time recognizing your sentence’s key points when they appear to come right before periods, colons, and semicolons, and
  2. readers expect your key sentence’s points to come in the main clause, so you should normally avoid writing, “The Court held that ….”

Provocative and useful, even if (like me) you don’t buy into everything he suggests.

H/T Raymond P. Ward at the (new) legal writer.

New opinion — court broadly applies overtime law

McMaster v. Eastern Armored Services — employment — affirmance — Fuentes

The Third Circuit today ruled that the Fair Labor Standard Act requires an armored-truck courier company to pay a driver/guard overtime. The case required untangling a statutory thicket. The FLSA required overtime. An exception to the law exempted certain motor carriers. An exception to the exception un-exempted motor carrier employees whose job “in whole or in part” affects the safe operation of vehicles under 10,000 pounds. Here, the employee spent 49% of her time in vehicles under 10,000 pounds, so the panel held that she gets overtime.

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

Since I have judicial-emergency-on-the-brain, two observations. First, the issue here was more complicated (and novel, with no prior rulings in any circuit) than I’d expect for a published case without oral argument. Second, this is one of what seems like a growing number of CA3 panels with two senior or non-CA3 judges. I wonder whether the Third Circuit’s judicial emergency is part of why cases like this are decided without argument and with a single active judge on the panel.

Committee re-examining inactive-status proposal

The Circuit posted this terse announcement Monday: “In light of comments already received, the Third Circuit Court of Appeals Attorney Discipline Committee is reexam[in]ing proposed Rule 17.”

Proposed Rule 17 sought to create a new inactive status. It said attorneys who have not appeared in the past five years must file a form to remain active. I welcome the committee’s re-examination of that proposed rule. I don’t see any benefit to justify the added headache for lawyers and the court.

I wonder what this announcement means for the other proposed amendments to the attorney-discipline rules. It was issued the same day as the deadline for public comments.

My original post on the proposed amendments is here.

Restrepo nomination: the wait for a hearing goes on [updated]


“2010-07-20 Black windup alarm clock face” by Sun Ladder – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons –


Well, the good news is that the Senate Judiciary Committee is finally holding a judicial-nomination hearing tomorrow. But the bad news is it reportedly won’t include L. Felipe Restrepo’s nomination. More delay for the Third Circuit’s judicial emergency.

I’m told Congressional Quarterly (which is paywalled) has posted that the judiciary committee will hold a hearing tomorrow morning on two nominations, Stoll Fed. Cir. (for an opening that is not a judicial emergency) and Ketchmark WDMO (also not a judicial emergency, and nominated after Restrepo).

UPDATE: the Senate Judiciary Committee website has just been updated here confirming that the hearing tomorrow will be for Stoll and Ketchmark only, not Restrepo.

Recall that, as reported last week in Legal Intelligencer, committee chair Chuck Grassley’s spokesperson said she “couldn’t even estimate” when Restrepo will get a hearing.

Last week People for the American Way’s blog observed that the Republican-controlled committee is moving more slowly on Obama’s judicial nominees than the Democratic-controlled committee did on George W. Bush’s:

In Bush’s last two years, the Senate confirmed 68 circuit and district court nominees, slashing the number of vacancies from 56 at the start of 2007 to as low as 34 in the fall of 2008. Today’s Republican Senate has confirmed no nominees so far this year. In the meantime, the number of current vacancies has climbed from 39 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.

PFAW’s blog last week also observed that the committee has held no judicial nomination hearings since January 21, and said, “Hearings for Judge Restrepo and other judicial nominees are long overdue.”

A few other resources of interest:

  • Judging the Environment has this helpful page with information on Restrepo’s nomination.
  • Alliance for Justice has posted this nominee background report on Restrepo, highlighting his key cases as a lawyer and as a judge.
  • The ABA has collected here a wealth of data on judicial vacancies overall.

My prior posts on the Restrepo nomination are here, here, here, and here.

H/T Glenn Sugamelli, who since 2001 has headed Judging the Environment‘s judicial nominations project.

Are Third Circuit judges reading briefs on tablets?


In other circuits, judges have made it known that they read briefs on tablets or iPads. For example, a majority of Fifth Circuit judges reportedly read briefs on iPads. Second Circuit Judge Wesley has explained that he does, too.

It is helpful for judges that lawyers know whether they are reading briefs using tablets, as the Columbia Business Law Review has explained:

The words themselves—that is, the content—may well be the same, but the style should differ. Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print.

* * *

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.

Also see this post, “5 Tips for Writing Briefs for Tablets.”

So, are Third Circuit judges reading briefs on tablets instead of on paper? I’d love to know. I recently tried to find out from the Circuit Executive’s office. I was told that not all judges read briefs on paper, but beyond that they could not say.

I’ll be looking for chances to find out more. In the meantime, if anyone has insight about it, please post in comments or contact me directly.

New opinion — no clearly established First Amendment protection for elected officials’ speech

Werkheiser v. Pocono Twp.  — First Amendment qualifed immunity — reversal — Cowen

Harold Workeiser was an elected township supervisor who also worked for the township as roadmaster. His fellow township supervisors decided not to reappoint him as roadmaster; he sued, alleging that they were retaliating against him for policy positions he took as supervisor. The township moved to dismiss based on qualified immunity, and the district court denied the motion.

Today, the Third Circuit reversed, holding that the township was entitled to qualified immunity because it is not clearly established that an elected official’s speech is protected by the First Amendment, nor is a First Amendment right to be free of retaliation clearly established on the facts here.

Joining Cowen were Vanaskie and Greenberg. Arguing counsel were Steven Hoffman for the township and Cletus Lyman for the ex-roadmaster.

Restrepo-nomination news and Fisher in district court

Saranac Spencer Hale has this article in today’s Legal Intelligencer, focusing filling long-open WDPA seats. (Free access via Google here.)

The article touches on two points of interest to Third Circuit followers. First, this update on the Restrepo nomination:

When U.S. Sen. Chuck Grassley, R-Iowa, took over as chair of the Senate Judiciary Committee at the start of this year, he indicated that he planned to maintain the same pace for moving consensus judicial nominees along to the full Senate for confirmation.

U.S. Sen. Patrick Leahy, D-Vermont, who had been chair of the committee before Grassley, had held hearings for nominees roughly every two weeks.

“That’s not true already,” Sugameli said of Grassley’s intent for keeping up with moving nominees along. So far this year the committee has held one hearing for judicial nominees.

Restrepo is not a controversial nominee, Sugameli said. He had the support of both Casey and Toomey when he was nominated to the district court in late 2012, he was confirmed by a voice vote in the Senate, and both home-state senators have, again, given him their support for his nomination to the Third Circuit.

Restrepo had to be renominated at the beginning of January and there is a new chairman with new staff examining his background, plus there was the high-profile hearing for Loretta Lynch, the nominee for attorney general, that took up a lot of time, Beth Levine, a spokeswoman for Grassley, explained of the delay.

The run-up to the Lynch hearing, which concluded last week with a 12-8 vote to move her on to a vote by the full Senate, required “all hands on deck,” Levine said.

Staff had to review 100 speeches from Lynch, Levine said, explaining the weight of the material involved.

They are still reviewing the background material for judicial nominees, like Restrepo, who are in the pipeline, she said. But coming up soon will be the hearing for the deputy attorney general.

Levine “couldn’t even estimate” a timeframe for Restrepo’s hearing, she said.

Second, the article mentions that Judge Fisher has recently took on two district court cases:

Third Circuit Judge D. Michael Fisher recently stepped in to take on two cases in the Western District, due partly to the shortage of judges on that bench. Fisher has his chambers in Pittsburgh and had also wanted to get trial experience, since he joined the appellate bench after having been in private practice and then serving as Pennsylvania’s attorney general.

“Two Third Circuit Judges” and sentencing policy

Professor Berman posted this morning at Sentencing Law & Policy about D.Iowa Judge Mark Bennett’s article “A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges.” The SSRN link to the article is here.

The two CA3 judges referenced in the title are Judges Fisher and Hardiman. From the intro (cites omitted):

[Bennett’s article] responds
to law review articles by two Third Circuit judges that suggest that
federal sentencing judges should be concerned about Congress’s next
move as we sentence defendants. Judge Fisher refers to this as a
“legislative backlash.” Judge Hardiman warns that “Congress
might impose new, detailed statutory penalties that will leave
district [court] judges with even less discretion than they possessed
in the mandatory Guidelines era.” While I have heard these
refrains before, I find them both odd and at odds with fundamental
notions of separation of powers and federal sentencing judges’
overarching command to impose a sentence that is “sufficient, but
not greater than necessary, to comply with the purposes” of federal

Looks interesting.


For the punctuation enthusiasts

‘Holy Writ,’ a glorious article by Mary Norris in the current New Yorker, is about commas, not Third Circuit advocacy.

But if you’re the sort who reads an appellate blog, there’s a good chance you’ll really enjoy it.

If an article is not enough to scratch your punctuation itch, Norris has a book due out in April, Between You & Me: Confessions of a Comma Queen. And if April is too long, I recommend Noah Lukeman’s A Dash of Style.

What can the Third Circuit’s website learn from other circuits’ sites?

I love the Third Circuit’s court website, and I use it every day. The Third Circuit isn’t just the subject of my blog, it’s the heart of my practice, and the website is essential for keeping up to date.

Every other federal circuit has a website, too–1 2 4 5 6 7 8 9 10 11 DC–and their sites offer some intriguing ideas for ways that the CA3 website could get even better. Other circuits–especially the Fourth and Ninth–make it easier to follow the court and to find appellate advocacy models. Here’s a quick look.


CA3 posts all its opinions, and they provide the case name, case number, and the court below. If you already know what case you’re looking for, that’s all you need. But other circuits make it easier for lawyers to find just-issued cases that matter to them without having to download and read each one. Here are the 3 best:

  • CA4’s opinions page doesn’t just give the case name, it also gives a category (criminal, civil private, immigration, civil rights, habeas, 2255, etc), opinion author, and disposition;
  • CA8’s lists the panel and gives a short abstract; and
  • CA9’s lists the category and author and gives a useful search tool.

Also somewhat handy is the search box that both CA10 and CADC provide so you can text-search opinions (meaning you can find all circuit opinions that contain the word “Chemerinsky,” for example, right from the opinion page).

These circuits’ pages make it easier for lawyers to stay current on circuit caselaw, and that benefits everyone.

Argument audio

CA3 gives access to oral-argument audio, which is great and not all circuits do. But all the CA3 site tells you is the case name, number, and argument date. Again, that’s fine if you already know the exact case you want, but if you don’t then you have to go hunting on PACER.

Other circuits make browsing argument audio easier. CA4 and CADC both tell you who was on the panel and who argued. CA5 lists arguing counsel; CA8 lets you search by counsel. CA9 lists the panel. CA7 gives the case type (criminal, civil, prisoner, etc). All useful features.

The Ninth Circuit wins the technology prize: it offers argument video. It is split-screen, so you see both the panel and the lawyer, and video quality is quite good. Imagine how helpful it is for lawyers to be able to see their own arguments looking for areas to improve. And I’d love to be able to watch and learn from top CA3 advocates like Peter Goldberger or a dozen others without ever leaving my office.


The same basic observation I’ve made about opinions and argument audio applies to argument calendars, too. CA3’s calendar gives you the case name and case number. Other circuits make it easier to find cases of interest. Once again, CA4‘s and CA9‘s are the best: besides the case name and number, you get the case type, a direct link to the case on PACER, and a short description of the issues.

Links and resources

CA3 has many helpful links and resources, including forms, good brief & appendix cheat-sheets, CJA do’s and don’t’s, and a link to the circuit bar associate and its practice guide.

Three circuit cites go even further with helpful resources:

  • CA4 – an appellate procedure guide, handy page-specific links to appellate rules;
  • CA7 – typography guides, sample briefs, redaction guides, and a criminal appeal handbook; and
  • CA9 — especially informative guides to practice, appellate jurisdiction, and standards of review, plus substantive circuit-law guides for immigration, social security, and 1983 cases.

The Third Circuit’s website is a tremendous resource for lawyers, and hopefully in the years ahead it will only get better.


Renee Edelman is the Circuit’s new CJA case-budgeting attorney

Renee Hurtig Edelman is the Third Circuit’s new case-budgeting attorney.

Case-budgeting attorney is a new position at the Circuit. According to the hiring notice, the case-budget 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.

I know Renee, we worked together at the Philly CHU. She’s smart as a whip and has a deep understanding of what it takes to litigate complex cases competently. She’ll be a tremendous asset to the Circuit.

(A valuable tip, fellow CJA lawyers: she is a big Duke basketball fan.)

Welcome to CJA-world, Renee.

New opinion — forum-selection clause enforced

Carlyle Investment Mgmt. v. Moonmouth Co. — contract — affirmance — Roth

The Third Circuit today affirmed a district court order applying a forum-selection clause and remanding to state court. The clause appeared in a contract between A & B. A is affiliated with X, B is affiliated with Y. The court held that the A and B’s contract was enforceable against X & Y.

Joining Roth were Hardiman and Scirica. Arguing counsel were Alan Kolod for the appellant and Sarah Teich for the appellees.

I posted earlier today how much I enjoyed today’s Scotus opinions in Yates v. United States. Let me illustrate on reason why. After the intro, here is the first paragraph of the Yates dissent:

While the plurality starts its analysis with §1519’s
heading, see ante, at 10 (“We note first §1519’s caption”), I
would begin with §1519’s text. When Congress has not
supplied a definition, we generally give a statutory term
its ordinary meaning. See, e.g., Schindler Elevator Corp.
v. United States ex rel. Kirk, 563 U. S. ___, ___ (2011) (slip
op., at 5). As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that
possesses physical form.” Ante, at 7 (punctuation and
citation omitted). A fish is, of course, a discrete thing that
possesses physical form. See generally Dr. Seuss, One
Fish Two Fish Red Fish Blue Fish (1960). So the ordinary
meaning of the term “tangible object” in §1519, as no
one here disputes, covers fish (including too-small red

Meanwhile, here is the first paragraph after the intro of Carlyle Investment:

Plaintiffs are Carlyle Investment Management, L.L.C.,
a large publicly traded investment management firm; two
affiliated entities, TC Group, L.L.C. and TCG Holdings,
L.L.C.; three founders and officers of Carlyle, David
Rubinstein, Daniel D’Aniello, and William Conway, Jr.; and
three Carlyle-affiliated former directors of Carlyle Capital
Corporation Ltd. (CCC), James Hance, John Stomber, and
Michael Zupon. Defendants are Louis J.K.J. Reijtenbagh;
three entities he owns and controls, Plaza, Moonmouth
Company S.A., and Parbold Overseas Ltd.; and an affiliated
Dutch company, Stichting Recovery CCC. The record
indicates that Plaza is the only corporate defendant that has
not been dissolved.

Different styles.

Appellate-dork blogger reads new opinion, can’t stop grinning


Look, I admit I’m a law nerd. My Tenth Circuit co-clerks took sinister delight in imposing a no-talking-about-the-law-during-lunch rule on me. And I’m fairly sure I’m in the minority when I say how frustrating it is that my fellow habeas-conference attendees don’t want to hash out the interplay between 2254(d)(2) and (e)(1) during the breaks between sessions.

But, still. I can’t be the only one who finds the jousting between Ginsburg, Alito, and Kagan in Yates v. United States today hugely entertaining. Right?

[Update: right. Professor Berman over at Sentencing Law & Policy gushes “Amazing stuff.”]

Geneva College news and commentary

The Third Circuit’s ruling earlier this month in Geneva College — upholding Obamacare’s contraception-care procedures against a RFRA challenge —  was one of the Circuit’s highest-profile recent cases. Here are links to the most interesting coverage.


National Law Journal here

Nonprofit Law Prof Blog here

Legal Intelligencer here



RH Reality Check here

Bustle here

Thinkprogress here



One News Now here

The Daily Signal here here



Third Circuit opening is named a judicial emergency

Today the Administrative Office of the U.S. Courts designated a Third Circuit seat as a judicial emergency. The emergency is for the seat that opened when Judge Scirica took senior status and that Judge Restrepo has been nominated to fill.

CA3 joins CA5 and CA11 as the only circuits with AOC-designated judicial emergencies. The Scirica seat qualifies as a judicial emergency because the vacancy has existed for more than 18 months and CA3’s adjusted filings are between 500 and 700 per panel.

Paul Gordon of People for the America Way here lamented the CA3 emergency and criticized the Judiciary Committee’s failure to act more quickly on Restrepo’s nomination (I’ve added a link and omitted another):

next week’s committee schedule is up [link here], and no hearings have been announced for judicial nominees.

* * *

The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other). With this vacancy now a judicial emergency and a second vacancy on the circuit opening in July, the decision to slow-walk this nomination is even more harmful.

H/T Glenn Sugameli of Defenders of Wildlife.

New opinion — grappling with the “slippery concept” of which side won

McBride v. Int’l Longshoremen’s Assoc. — civil — affirmance — Nygaard

The Third Circuit today affirmed a district court’s determination that a party was a prevailing party entitled to attorney’s fees and rejected an argument that the district court’s post-remand rulings exceeded its mandate.

Joining Nygaard were Fuentes and Greenaway. The case was decided without argument.

New opinion — prisoners have no right to parole, but court vacates dismissal of retaliation claim

Fantone v. Latini — prisoner civil rights — reversal — Greenberg

In a notable inmate-rights ruling, the Third Circuit today ruled that Pennsylvania inmates have no protected liberty interest in being paroled but reversed the dismissal of an inmate’s retaliation claim.

State inmate Phillip Lee Fantone was granted parole, but that grant was rescinded due to pending prison discipline against him. Fantone filed suit, alleging that his due process rights were violated by the parole rescission. He also alleged that a guard unlawfully retaliated against him by keeping him in restricted housing because he refused to confess to committing a crime in prison and filed a grievance against the guard.

The court today affirmed dismissal of the due process claims because it held that Pa. inmates have no liberty interest in parole. But it reversed dismissal of the retaliation claim because the inmate’s allegation was legally sufficient given the “proper deference [owed] to his pro se pleadings.”

Joining Greenberg were Vanaskie and Cowen. Arguing counsel were Peter Laun of Jones Day for the inmate and Kemal Mericli for the state.

En banc argument in criminal appeal Thursday

The Third Circuit will hold its first en banc argument of the year on Thursday.

The case is United States v. Jermel Lewis, and the issue in the case is whether it was harmless error to fail to charge in the indictment and present to the jury the facts used to increase the mandatory-minimum sentence.

In the now-vacated panel opinion, Fisher joined by Chagares held that the error was harmless; Rendell dissented.  My post on the panel opinion is here.

The argument will be held at 10 a.m. in the Maris courtroom on the 19th floor. I have not double-checked, but I assume arguing counsel remain Paul Hetznecker for the defendant and Robert Zauzmer for the government.

A bit of backstory on a big 2014 habeas reversal

I went to law school at UNC Chapel Hill, so it pains me a bit to say anything good about Duke. But Duke Law’s appellate litigation clinic represented the winning side in one of last year’s most important habeas corpus cases, Branch v. Sweeney. For anyone who wants to learn more about the law-student team that won Branch, here are two law-school news stories I came across recently, here and here.

Go, Duke!

Circuit proposes changes to attorney-discipline rules


The Third Circuit does not appear to impose attorney discipline often. The court website lists two cases, neither within the past two years. (In a 2012 case, the lawyer had filed 30 CA3 appeals, and 20 of them faced procedural termination due to the lawyer’s failure to meet filing deadlines!)

Discipline may be rare, but it happens, so the court has proposed to amend its Rules of Attorney Disciplinary Enforcement. Bruce Greenberg has cogently summarized the changes at his New Jersey Appellate Law Blog.

The main changes would be:

  • creating an inactive status, which the court imposes either (a) by request, or (b) when the lawyer has not appeared in CA3 in 5 years and has not filed a form asking to remain active;
  • exposing lawyers to CA3 discipline if they have been disciplined by another court — under the current rules, only disbarment or suspension in another court triggers reciprocal discipline; and
  • clarifying that lawyers are not subject to CA3 discipline for administrative suspension in another court caused by, for example, failure to pay annual fees or meet CLE requirements.

Comments on the proposed rules can be filed by mail or email by March 9. Details here.

One thing I would change: the proposed rule has several 10-day deadlines. Back in 2009, FRAP wisely changed most of its 10-day deadlines to 14–the end result is usually the same, with less risk of miscalculation. For the same reason, and to harmonize with FRAP, the court should go to 14-day deadlines here.


New opinion — Allstate beats the EEOC

EEOC v. Allstate — employment discrimination — affirmance — Hardiman

In the interest of efficiency, Allstate fired over six thousand of their agents, and then offered them all the chance to be independent contractors–but only if they signed a release that waived any legal claims about the firing. The EEOC sued Allstate, alleging that Allstate’s refusal to keep agents who would not sign away their firing claims was illegal retaliation. The district court granted summary judgment for Allstate, this court reversed, and the new district court granted summary judgment for Allstate again.

Today, CA3 affirmed, holding that the EEOC retaliation claim was foreclosed by prior holdings that employers can required fired employees to waive existing claims in exchange for un-earned benefits. The court rejected EEOC’s argument that the rule ought not apply because the employees were just converted into contractors, not severed.

Joining Hardiman’s opinion were Scirica and Barry. Arguing counsel were Paul Ramshaw for EEOC and former EEOC general counsel Donald Livingston of Akin Gump  for Allstate.

Restrepo nomination update, plus some senior-status news

Here’s an update on the pending Third Circuit nomination of Judge Luis Felipe Restrepo to fill Judge Scirica’s seat, which I posted about before here and here.

The nomination is still before the Senate Judiciary Committee. In a procedural move, the original nomination was returned in mid-December when the Senate adjourned, so he was renominated in early January.

Here is Restrepo’s committee questionnaire.

He received a favorable but split ABA Rating. A substantial majority rated him well qualified, a minority rated him qualified.

This letter to the editor criticizes the delay in confirming him.

The liberal advocacy group People for the American Way singled out Judge Restrepo’s nomination as a bipartisan success-story:

Good-faith consultations can lead to highly favorable results, as we saw at the end of 2014 with a Pennsylvania vacancy on the Third Circuit. After fruitful conversations between the White House and Senators Bob Casey (D) and Pat Toomey (R), this fall’s nomination of Luis Restrepo for that seat was immediately met with the strong endorsement of both senators.

Finally, the most informative update on the Restrepo nomination is this Legal Intelligencer article last week by Saranac Hale Spencer, which reports:

President Obama nominated Restrepo to the appeals court last November, just over a year after the judge had taken the bench in the Eastern District of Pennsylvania.

That nomination came in the first batch from the White House since the election that flipped the Senate leadership in favor of the Republicans.

U.S. Sen. Chuck Grassley, R-Iowa, has since taken over as chair of the Senate Judiciary Committee and has indicated that he plans to maintain the same pace for moving consensus judicial nominees along to the full Senate for confirmation.

When U.S. Sen. Patrick Leahy, D-Vt., was chair of the committee, he held hearings roughly every two weeks, said Glenn Sugameli, who tracks judicial vacancies for the Defenders of Wildlife in Washington, D.C.

So far, the committee has had one hearing for four judicial nominees—three for the Southern District of Texas and one for the District of Utah.

Those were the nominees next in line for a hearing and, if the same practice holds, Restrepo should be in the next batch of nominees to go in front of the committee, Sugameli said.

There would be two district court nominees and another circuit court nominee in that group, so, it’s conceivable that Restrepo could be held back since circuit nominees are typically under greater scrutiny and the committee will sometimes split them up, Sugameli said. However, he said, neither Restrepo nor the nominee to the Federal Circuit are controversial.

Restrepo had the support of both of Pennsylvania’s senators—Robert Casey, a Democrat, and Pat Toomey, a Republican—when he was nominated to the district court in late 2012 and both senators have, again, given him their support for his nomination to the Third Circuit.

Unless he is confirmed by the full Senate before July, there will be two vacancies on the Third Circuit, which is relatively rare, Sugameli said.

The Seventh Circuit, in Illinois, has a seat that has been open since 2010 and another one that is slated to open when a judge takes senior status in February and the Fifth Circuit, in Texas, has two empty seats with no nominees.

“Texas and Pennsylvania are uniquely in the situation of having justice delayed being justice denied,” Sugameli said, referring to the state of the federal judiciary in those states as a whole, including district court vacancies, and the length of time the seats have been open.

In addition to discussing Restrepo’s nomination, Spencer’s article also has some great senior-status tidbits for CA3 nerds. She reports that Chief Judge McKee is the only active CA3 judge eligible to go senior, and “doesn’t plan to do that any time soon, he said.” She also reports that Judge Rendell plans to keep an 80% caseload, participating in 4 of the 5 or 6 sittings per year.

New opinion — a Social Security case

Zirnsak v. Colvin — Social Security — affirmance — Van Antwerpen

At the requesting of the prevailing party, today the Third Circuit published a previously unpublished Social Security opinion. Joining Van Antwerpen were Vanaskie and Cowen. The case was decided without argument.

I have a confession. My interest in Third Circuit caselaw is broad, much broader than my current criminal-and-habeas practice. But it’s not wide enough for Social Security cases.

Circuit upholds ACA contraception-coverage requirement

Geneva College v. Secretary — civil – RFRA — reversal — Rendell

The Third Circuit denied a major religious-rights challenge to Obamacare today, ruling that the act’s contraception-coverage scheme does not violate the Religious Freedom Restoration Act (RFRA).

Here is the introduction (some citations omitted):

The appellees in these consolidated appeals challenge the preventive services requirements of the Patient Protection and Affordable Care Act (“ACA”) (2010), under the Religious Freedom Restoration Act (“RFRA”). Particularly, the appellees object to the ACA’s requirement that contraceptive coverage be provided to their plan participants and beneficiaries. However, the nonprofit appellees are eligible for an accommodation to the contraceptive coverage requirement, whereby once they advise that they will not pay for the contraceptive services, coverage for those services will be independently provided by an insurance issuer or third-party administrator. The appellees urge that the accommodation violates RFRA because it forces them to “facilitate” or “trigger” the provision of insurance coverage for contraceptive services, which they oppose on religious grounds. The appellees affiliated with the Catholic Church also object on the basis that the application of the accommodation to Catholic nonprofit organizations has the impermissible effect of dividing the Catholic Church, because the Dioceses themselves are eligible for an actual exemption from the contraceptive coverage requirement. The District Courts granted the appellees’ motions for a preliminary injunction, and, in one of the cases, converted the preliminary injunction to a permanent injunction. Because we disagree with the District Courts and conclude that the accommodation places no substantial burden on the appellees, we will reverse.

Judge Rendell is the author, joined by McKee and Sloviter. Arguing counsel were Mark Stern for the government and Gregory Baylor and Paul Pohl (a former Weis clerk and past chair of the CA3 lawyer’s advisory committee) for the parties challenging the law.

A cert petition seems inevitable. Early news coverage of this decision by Saranac Hale Spencer in the Legal Intelligencer is here.

News analysis of recent circuit Fourth Amendment trends

Saranac Hale Spencer has this article today in the Legal Intelligencer discussing recent CA3 search-and-seizure cases, in which I am quoted.

The headline: “In Three Opinions, Third Circuit Joins Shift Away From Suppression of Evidence.” The most recent of the cases she discusses is last week’s affirmance in U.S. v. Wright.

Update: this Google link to the article avoids the paywall.

New opinion — reversing a capital-habeas grant of relief

Dennis v. Secretary — capital habeas — reversal — Fisher

In an important capital habeas corpus opinion, today the court reversed a district court’s grant of relief in a Pennsylvania case.

The unanimous panel reversed the district court’s grant of relief under Brady v. Maryland for the prosecution’s failure to disclose 3 pieces of exculpatory evidence. The panel held that it was not unreasonable for the state court to limit Brady to evidence that was admissible and evidence not obtainable by the defense through reasonable diligence. The court also ruled that it was reasonable to find immaterial an exculpatory police report that impeached a key prosecution eyewitness because that witness was cross-examined about her identification at trial. All three are important holdings on recurring issues, and I expect Dennis to make an impact.

Judge Fisher wrote the opinion, and he was joined by Smith and Chagares. Arguing counsel were Thomas Dolgenos for the Philadelphia DA and Stu Lev of the Philadelphia CHU for the death-row inmate. Lev was joined on the brief by five lawyers from Arnold & Porter plus a lawyer from the federal defender in Nevada.

Given the conservative panel and its aggressive reasoning, I’d bet the farm that the inmate will seek rehearing en banc.


Inquirer features Facebook-threats-case lawyers

Ron Levine and Abe Rein, the Post & Schell lawyers whose Third Circuit Facebook-threats case is pending in the Supreme Court, were featured in this front-page article yesterday by Chris Mondics of the Philadelphia Inquirer:

Soft-spoken and precise, Levine is a sought-after defense lawyer whose clients typically include well-heeled executives and moneyed corporations, not indigent criminals accused of threatening to kill their wives in rap lyrics on Facebook.

He did his undergraduate work at the Wharton School of the University of Pennsylvania and then spent two years at Oxford, where he did graduate work in sociology. After law school and a clerkship with the federal district court in Philadelphia, Levine spent 17 years as an assistant U.S. attorney in the city, rising to become the head of the criminal division before founding the white-collar defense practice at Post & Schell in Center City. One reason clients seek him out is his deep familiarity with the way the Justice Department works and how prosecutors think – qualities that help head off indictments.

Levine is also among a pool of local lawyers who represent indigent clients at reduced rates, and that is how he came to represent Elonis.

Levine, 61, says it didn’t take much convincing when Lawrence Stengel, the federal district judge who presided over the Elonis trial, called and asked if he would represent Elonis.

“The issue isn’t so much my belief in guilt or innocence; the issue is, did the government in a fair way bring charges and prove charges according to the law?” Levine said.

Levine drafted Rein to assist in the case in part because Rein had spent several years running a Web design company before law school, and Levine reasoned that his deep familiarity with the Web would be an asset.

Here’s my favorite quote, Levine reflecting on his first Supreme Court case:

“This isn’t the capstone of my career,” Levine remarked, “but it isn’t a routine matter either.”

My prior posts on the Elonis case are here and here.


New opinion — another search-warrant suppression decision

Here’s how the first paragraph of today’s lone published opinion summarizes the issue:

We recently confronted the question of whether suppression is required when a law enforcement officer obtains a valid search warrant but mistakenly interprets a judge’s sealing order as prohibiting him from showing the list of items to be seized to the person whose property is being searched. See United States v. Franz, 772 F.3d 134 (3d Cir. 2014). This case presents the related question that arises when, as a result of a sealing order, the list of items to be seized is inadvertently omitted from the warrant when it is executed.

From there, things get a bit murkier. The court held that the exclusionary rule did not require suppression of the evidence seized in violation of the Fourth Amendment because the officer’s mistake wasn’t at least gross negligence. This despite prior CA3 precedent that this same mistake usually is at least grossly negligent, and despite the fact that the officer here had extensive experience.

So why was this officer not grossly negligent? Because (1) the prosecution did not really benefit from the mistake, and (2) the mistake was isolated. Neither rationale makes any sense to me.  What does benefit-to-the-prosecution have to do with whether the officer’s error was negligent?  Sounds more like a backdoor deliberateness requirement to me. And why are rare mistakes less negligent? The court says, “Only if mistakes of this nature recur with some frequency will a criminal defendant be in a position to argue that the calculus has changed,” but that seems exactly backwards. A mistake no one else is making is more negligent, not less.

[Update: on reflection, my original post was off-target. The panel’s reasoning is well-grounded in recent Supreme Court 4th Amendment jurisprudence. My quarrel is with that binding precedent, not today’s decision.]

Anyway, interesting case, and a well-written opinion even if I don’t buy the reasoning.

The case is United States v. Wright. Opinion by Fuentes, joined by Ambro and Nygaard. The case was decided without argument.

My comment opposing the proposed FRAP word-limit cut

You’ve probably heard that the rules committee has proposed cutting the FRAP word-limit on briefs from 14,000 to 12,500. The proposal is here. Howard Bashman ably summarizes matters in this column in the Legal Intelligencer. Inspired by Bashman’s How Appealing blog posts, I submitted this comment today:

Brevity is a reflection of good advocacy, not its cause. Under the current limit, the courts are burdened with too many aimless, bloated 14,000-word briefs. Under the proposed limit, they will get aimless, bloated 12,500-word briefs instead. The problem is real, but the solution proposed will miss the mark. I favor the current word limit.

I’m winning the shortest-comment contest for now.

You can view all the comments here. (Mine hasn’t posted yet.) Don’t miss Judge Easterbrook’s and Judge Silberman’s. You can submit a comment of your own by February 17th here.

A review of Federal Appellate Procedure Manual, by Alex Kozinski & John K. Rabiej

FAPM cover

Alex Kozinski, the colorful Ninth Circuit judge, has co-authored a new book for appeals weenies, the Federal Appellate Procedure Manual (Juris 2014). His co-author is John K. Rabiej, the longtime head staffer to the federal rules committees.

Inside FAPM you’ll find three sections:

  1. a 50-page mini-primer on jurisdiction, briskly covering topics like standards of review, the final-decision rule, and interlocutory appeals;
  2. 150 pages on the FRAP rules — this is the heart of the book — and
  3. 18 pages of forms and tables.

When I first got it, I thought, “Neat book. But who’s it for?” If you want to know what a FRAP rule says, just read the rule; if you want to know how its been interpreted, read the cases. FAPM sprinkles in some case-cite footnotes, but it is nothing like a treatise. I never bother reading headnotes or syllabi, and I thought FAPM might be the same flavor of useless.

But then it saved my butt.

See, I’ve always been too focused on substance lazy to get clear on how Rule 26‘s deadline-computing works. You get three extra days, but sometimes you don’t … it’s easy to grasp when you focus on it, but I never had. Anyway, in my case, the court gave me an extension until December 1, and I was thinking I had until December 4. Then on November 29, I read FAPM’s blurb on Rule 26, which said, “The Rule does not apply to a date certain fixed by the court in an order to act, e.g., file no later than February 1.”

(1)  “Oh, crap.”

(2) “Maybe this book is more useful than I thought.”

Now, maybe you’re reading this thinking, “huh, I had no idea Stiegler was that ignorant.” Fair enough. But, see, that just happened to be my blindspot — you may have blindspots of your own. A short little book like this can help you spot them. If it saves your tuckus just once, it pays for itself.

fapm inside

Click to enlarge.

In the end, that’s where I come down on FAPM. It’s not the most useful book on my shelf. I wish it had better coverage beyond FRAP on nuts-and-bolts things that matter to appellate practitioners, like how panels are composed or what staff counsel does. (It does discuss a few potential rules changes the committee has discussed and compares circuit practice in a few areas.) You’d be nuts to buy it instead of the Third Circuit Bar Association’s PBI’s indispensable Third Circuit Appellate Practice Manual [see Peter Goldberger’s comment below], or Mayer Brown’s pricier Federal Appellate Practice.

But it saved my butt, and it might save yours.


If you want to buy a copy, you can get it from the publisher with free shipping at this link, and the coupon code FAPM25 gets you 25% off the $95 list price.

Disclosure: I have no ties to the authors or the publisher. I got the book free from the publisher — they asked me to do a review and to include their link.



Judge Rendell announces plans to go senior

Judge Rendell has announced her intent to take senior status, according to this article by Jeremy Roebuck of the Philadelphia Inquirer last night:

In July, Rendell will take “senior status” on the 13-member court, a designation that allows her to hear cases but reduces her workload. The decision clears the way for President Obama to appoint a full-time replacement before the end of his term.

There currently are 10 senior-status CA3 judges, Judge Scirica the most recent of them.

H/t Howard Bashman at How Appealing.

A vigorous Erwin dissent, and I’m in the chorus


A Chorus Line (Dcdjdrew – Wikipedia – Creative Commons 3.0)

One day, when I fancy this blog a bit more of a Big Deal, maybe I will hand out year-end CA3 awards: Best Opinion, Sexiest Judge Alive, that sorta thing.

If I were doing it this year, my runaway winner for Worst Decision of 2014 would be United States v. Erwin. Regular readers know I’ve posted about Erwin a bunch.

Anyway, today Judge Ambro (joined by Rendell, Greenaway, and Vanaskie) issued an opinion for his dissent from denial of rehearing en banc. The en banc denial was announced last month. Today’s dissent is not on the court’s website, which is a shame, because it’s a good one, what Justice Stewart would have called “a snapper.”

Here’s the heart of it, sans cites:

Here is the novelty: the District Court may now resentence Erwin without the Government reprising its downward-departure motion, potentially increasing his time in prison by over four years. The opinion relies on statements from contract law, but, on closer examination, contract principles faithfully applied call for a different remedy from the one our Court orders. * * * To restore the parties to their pre-breach positions, we need only nullify Erwin’s appeal. To do this, we should not consider Erwin’s arguments, no matter how meritorious.

Rejecting this approach, the panel created the new rule that a “defendant must accept the risk that . . . enforcing the waiver may not be the only consequence” of an appeal. Unlike traditional contract remedies, any consequence that goes beyond enforcing the waiver gives the Government more than it bargained for. Specifically, it bargained for Erwin’s cooperation (which it got) and his waiver of the argument that his sentence was calculated incorrectly. * * * Now the Government gets more than the full benefit of its bargain, namely, an opportunity to sentence Erwin again without an obligation to compensate him for his cooperation.

From the conclusion:

In every one of the thousands of criminal appeals this Court has heard since the first appellate waiver in a plea bargain, we have never before held that an attempt to litigate a waived argument opens the door to a harsher sentence. Yet here we do. This cuts counter to how we have acted, and it goes against the majority of cases in other circuits.

And here, dear reader, is the first-ever mention of this illustrious blog in a CA3 opinion:

The panel provides no sound reason for its new remedy, and I join the growing chorus of commentators who have lamented this decision. See Kevin Bennardo, United
States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements, 71 Wash. & Lee L. Rev. Online 160 (2014); Alain Leibman, “Third Circuit Holds that Breach of Agreement not to Appeal Justifies Government’s Withdrawal of 5K Motion,” White Collar Defense and Compliance (Sept. 18, 2014), available at http://whitecollarcrime. (“Not only did the court get it wrong in terms of appreciating the true nature of the parties’ exchange of commitments, but it did not even apply contracts law correctly.”); Matthew Stiegler, “Divided Court Denies En Banc Rehearing in Erwin Appeal-Waiver Case,” CA3blog (December 31, 2014), available at (“An ignominious ending to 2014.”); Lathrop B. Nelson, III, “Third Circuit Issues Cautionary Tale for Appellate Waivers,” White Collar Alert (Aug. 24, 2014), available at 2014/08/27/third-circuit-issues-cautionary-tale-for-appellate-waivers/ (“What about those defendants who have legitimate appellate issues that decline to appeal for fear of a harsher sentence if the court deems the appeal within the scope of their appellate waiver?”); Hon. Richard George Kopf, “Pigs Get Fed, Hogs Get Slaughtered,” Hercules and the Umpire (Sept. 2, 2014), available at 02/pigs-get-fed-hogs-get-slaughered/ (“Contract principles are not intended to be punitive, and more than four years extra in prison appears to be punitive rather than restorative in nature.”); Scott H. Greenfield, “Such a Deal (or Snitches Get Stiches),” Simple Justice (Sept. 8, 2014), available at (“Nobody would have seen this coming.”).

So on this momentous occasion, I close with three thoughts.

First: I hope the uptick in page-views for my Erwin posts over the past week means that someone in a black robe in the Jim Byrne is hip to how big a disaster Erwin will be.

Second: welcome, new readers.

Third: I’m sad that Douglas Berman’s Sentencing Law & Policy is left out of the blog-chorus, because I bet his post was the one everyone else found.

New opinions — bankruptcy sanctions and nursing-home liability

Two opinions today.

First, CA3 upheld a bankruptcy-court order imposing over $100,000 in sanctions against debtor’s counsel for accusing creditor’s counsel of bribing a witness. To be more precise, they reversed the district court’s ruling vacating the sanctions.

The case is In re Prosser. Lucid opinion by Shwartz, joined by Chagares and Jordan. Arguing counsel were Samuel Israel of Fox Rothschild for the creditors and Norman Abood (one of the sanctioned lawyers!) for the debtor.


Today’s other case is an appeal from a civil trial in which a nursing home and its officers and directors were sued for mismanaging the home. CA3 upheld the jury’s liability verdict and the damages awarded against the officers, but vacated the punitive damages awarded against the directors because their conduct was insufficiently outrageous.

The case is In re: Lemington Home. Opinion by Vanaskie, joined by Smith and Shwartz. Arguing counsel were Michael Bowe for the trial defendants and Nicholas Krawec of Bernstein-Burkley for the plaintiff.

New opinion — the court affirms denial of 1983 retaliation suit, and I scratch my head

When I read the first sentence of the opinion —

Appellant Jeffrey Heffernan, a police officer in Paterson, New Jersey, was demoted after being observed obtaining a local mayoral candidate’s campaign sign at the request of his mother.

— I was sure the court was going to rule in favor of the demoted officer. Poor guy was just getting a sign for bedridden mom. But I was wrong. The court affirmed summary judgment against him because he failed to show that he actually exercised his First Amendment rights. So, the employer can’t fire you for free speech, except that they can fire you for free speech if you weren’t actually engaged in free speech. Wacky, no?

The case is Heffernan v. City of Paterson. Opinion by Vanaskie, joined by Greenberg and Cowen. The case was decided without argument.

New opinions: a reversal on sua sponte grounds, plus two affirmances

Three published opinions today.

First up is an unusual case where CA3 reversed on a basis first noticed by the court itself. An employee sued this former federal employer, and the district court dismissed on statute-of-limitations grounds. After the employee appealed, CA3 ordered briefing on an issue he hadn’t raised, namely whether that statute-of-limitations applies, and today the court reversed on that basis.

The court declined to deem timeliness waived, even though the appellant hadn’t raised it in district court or his opening brief, because the issue was purely legal and important and the court gave the parties a full opportunity to brief it on appeal. As far as I can tell, the fact that the appellant missed the issue didn’t change his burden at all–since it wasn’t a total waiver, it was scot-free de novo. Surprising.

The case is Kannikal v. Attorney General. Opinion by Rendell, joined by Jordan and Nygaard. Arguing counsel were Faye Riva Cohen for the employer and Stephanie Marcus for the government.


Next up is an affirmance of summary judgment in an employee-discrimination appeal. The core issue was whether the employee had shown a causal connection between her protected activities and the employer’s adverse actions, and CA3 held that on the facts here she had not.

The case is Daniels v. School District. Opinion by Greenberg, joined by Vanaskie and Cowen. The case was decided without oral argument.


Today’s last case is a white-collar-criminal affirmance. The central holding is that the defendant’s purchases of US stocks “through U.S. market makers acting as intermediaries for foreign entities” were a valid basis for conviction and not an improper extraterritorial application of US law. The court also denied a raft of other claims.

The case is U.S. v. Georgiou. Opinion by Greenaway, joined by Chagares and Vanaskie. Arguing counsel were Scott Splittberger for the defendant and Louis Lappen for the government.

Famous, the wrong way [updated]

Lawyers all make mistakes, and most of us have made big ones. When it happens to you, will you fight for your client, or yourself?

Today, a vivid reminder from the Supreme Court that choosing wrong just might make you the wrong kinda famous.

The heart of it (record cites omitted, eviscerating alteration in original):

Horwitz and Butts, as they have subsequently acknowledged, failed to meet with Christeson until more than six weeks after his petition was due. There is no evidence that they communicated with their client at all during this time. They finally filed the petition on August 5, 2005—117 days too late. They have since claimed that their failure to meet with their client and timely file his habeas petition resulted from a simple miscalculation of the AEDPA limitations period (and in defending themselves, they may have disclosed privileged client communications). But a legal ethics expert, reviewing counsel’s handling of Christeson’s habeas petition, stated in a report submitted to the District Court: “[I]f this was not abandonment, I am not sure what would be.”

* * *

[I]n their response to the District Court’s order to address the substitution motion, Horwitz and Butts characterized the potential arguments in favor of equitable tolling as “ludicrous,” and asserted that they had “a legal basis and rationale for the [erroneous] calculation of the filing date.”

Thirteen times the Supreme Court’s opinion identifies Horwitz and Butts by name. The case is Christeson v. Roper.

UPDATE: my original post was remiss in failing also to mention the heroes of the tale, New York attorney Joseph Perkovich and Philadelphia attorney Jennifer Merrigan. The opinion makes plain enough their extraordinary work for Christeson (more backstory in this Linda Greenhouse column in the New York Times), even without mentioning that their work was entirely pro bono. Perkovich and Merrigan: the right kinda of famous.

Alito on Becker

Chris Mondics has this article in today’s Philadelphia Inquirer about Justice Alito’s appearance in Philadelphia today to accept an award honoring the late CA3 Chief Judge Edward Becker.

A highlight:

Becker, who authored more than 2,000 opinions during his time on the bench, produced
prodigious amounts of work, Alito recalled, sometimes attending his children’s soccer games
with a law clerk who would brief him on cases as he walked along the sidelines.


New opinions: First-Amendment retaliation and an admin appeal

Albert Flora was the part-time Chief Public Defender for Luzerne County, PA. His office was “plagued with problems as a result of years of insufficient funding.” When the county (his boss) refused to provide adequate funding, he brought a class-action lawsuit against it on behalf of his clients, which he won.

Meanwhile, Flora’s office also represented minors who were victims of the horrifying “Kids for Cash” scandal. The state supreme court had ordered those minors’ records expunged but Flora learned that they still had not been, 4 years later, so he notified the trial judge and others. This made the county manager angry– the notifying, not the failure to expunge.

The county decided to hire a full-time chief defender. They interviewed Flora but hired someone else, and Flora was relieved of his duties ahead of schedule. Flora sued under 1983, asserting the foregoing facts and alleging that he had been terminated in retaliation for pushing for funding and blowing the whistle on the expungement noncompliance, violating his First Amendment rights. The district court ruled that Flora’s actions were not protected by the First Amendment and dismissed.

Today, CA3 reversed, holding that the district court failed to accept Flora’s allegations as true and that Flora sufficiently alleged protected citizen speech.

The case is Flora v. County of Luzerne. Opinion by Jordan, joined by Rendell and Nygaard. Arguing counsel were Mary Catherine Roper of ACLU-PA for Flora and Deborah Simon of Elliott Greenleaf for the county.


Today’s other opinion arises from an administrative law case. Here, a port authority fired a worker for excessive absenteeism related to an off-duty injury. An agency ruled that the firing violated a provision against disciplining employees for following a physician’s treatment plan. The port authority appealed, and today CA3 ruled in their favor, holding that the provision at issue only covered treatment for on-duty injuries.

The case is Port Authority v. Secretary. Opinion by Smith, joined by Hardiman and Barry. Arguing counsel were Megan Lee for the port authority and Steven Gardiner for the agency. Also arguing were Ronald Johnson of Jones Day for an amicus and Charles Goetsch for an intervenor.


“‘You’ve got to admit’ …. that a number of people in the United States ‘are very prejudiced against Muslims.'”

Michael Boren of the Philadelphia Inquirer has coverage here of yesterday’s oral argument in a case involving New York City’s surveillance of Muslims after 9/11. Audio of the argument is here.

The case is Hassan v. City of New York, and the panel is Ambro, Fuentes, and Roth. (The quote in the headline was of Judge Roth.)

News coverage of today’s Fattah-subpoena argument

It appears I was correct that “John Smith” is Congressman Chaka Fattah.

The Third Circuit heard argument today In the Matter of Search of Electronic Communications (Both Sent and Received) In the Account of John Smith At Internet Service Provider Google Inc., and Mark Fazlollah and Jonathan Tamari of the Philadelphia Inquirer report here that it was clear from the argument that the email at issue was Congressman Fattah’s.

The court has not yet posted audio of the argument.

Update: audio of the argument is here.

New opinion: Locomotive Inspection Act preemption

Finally, the Locomotive Inspection Act case we’ve all been dying for. Actually, it’s more a preemption case, and tricky enough to divide the panel. The majority ruled that the LIA did not preempt the state law claims, reversing.

The case is Delaware & Hudson Railway v. Knoedler Manufacturers. Opinion by Jordan, joined by Fisher. Dissent by Hardiman. Arguing counsel were Gregory Longworth for appellants and Matthew Planey for appellee.

A troll, a GPS search, and a moocher-hunter: CA3’s year in tech

This article by Saranac Hale Spencer in the Legal Intelligencer this week observes that in 2014 technology-related appeals in the Third Circuit “allowed the court to set precedent on the intersection of the law and the Internet.” The article discusses 3 biggies from the past year plus an interesting-sounding appeal now pending on internet cookies.

More CA3 staff attorney hiring

Back in September, I noted, the court advertised for two staff attorney positions to start in September 2015. This week, the court advertised additional openings, for 2 or more attorneys to fill current vacancies. As with the prior listings, these are one-year terms:  “limited number of term extensions may be available.” Salary is listed at $74,884 for attorneys with a year of experience. Closing date is January 19.

The notice is here.

New opinion: interlocutory criminal appeal dismissed on jurisdiction

The Third Circuit dismissed an interlocutory criminal appeal today. Even though the government and the co-defendants agreed that the court had jurisdiction, the court ruled otherwise.

Three co-defendants, including the chief of staff to a Philadelphia city councilman, were convicted of honest services fraud and other charges. In 2012, CA3 vacated the convictions under Skilling. On remand, the co-defendants argued that double jeopardy barred the prosecution from using certain evidence and that the limit on constructive amendment of indictments barred it from making certain arguments. When the district court disagreed, they appealed.

Today, CA3 dismissed the appeal. The defendants’ double-jeopardy arguments did not trigger the collateral-order exception to the final-judgment rule because the exclusion of evidence they sought would not require dismissal of any count in its entirety. The defendant’s constructive-amendment arguments failed under Midland Asphalt. And because the co-defendants had not shown irreparable injury, the court also denied mandamus.

The case is US v. Wright. Opinion by Vanaskie, joined by Ambro and Chagares. Arguing counsel were Lisa Matthewson for the defendants and Jennifer Williams for the government. The co-defendants were represented by Ellen Brotman of Montgomery McCracken and Peter Goldberger, making this one of the more star-studded recent CA3 criminal appeals.

Monday secret-case oral argument — part of the Congressman Fattah case?

There’s a CA3 case that will be orally argued this Monday. Here’s the caption: In the Matter of Search of Electronic Communications (Both Sent and Received) In the Account of John Smith At Internet Service Provider Google Inc.

Interesting, right?

It gets more interesting upon a check of the PACER docket, which reveals:

  • the docket entries all are sealed;
  • Kerry Kircher, general counsel for the US House, will be arguing as counsel for amicus appellant identified as the Bipartisan Legal Advisory Group of the U.S. House;
  • Google also is arguing as an amicus;
  • Robert Zauzmer, the EDPA USA’s top criminal appellate lawyer, is arguing for the government;
  • The other AUSAs on the docket are Paul Gray and Eric Gibson, and
  • John Smith is identified as an intervenor-appellant, and his retained counsel is listed on the docket as Luther Weaver III.

So, what’s going on here?

Maybe this Philadelphia Inquirer story from last March sheds light:

U.S. Rep. Chaka Fattah, who has been contending with a long-running federal investigation, told Congress this week that federal prosecutors in Philadelphia had subpoenaed “certain documents” from his congressional offices.

Following House rules that require such disclosure, the Philadelphia Democrat notified Speaker John A. Boehner of the subpoena in a letter dated Monday, saying that he believed some of the information prosecutors demanded was protected by congressional privilege and that he would fight to stop its release.

I intend to move to quash the subpoena to that extent,” Fattah wrote in the letter, published in Tuesday’s Congressional Record.

* * *

In the fall, the U.S. Attorney’s Office in Philadelphia subpoenaed records of city property taxes and utility bills for Fattah’s East Falls home. His lawyer, Luther E. Weaver 3d, said at the time that the property-tax subpoenas were part of an investigation that had begun about seven years ago.

* * *

Fattah, whose district includes much of Philadelphia and a portion of Montgomery County, said in his letter to Boehner (R., Ohio) that after consulting with House lawyers, he had concluded some of the subpoenaed records were “not material and relevant.”

And this news story gives more details on the Fattah case. It links to a guilty plea memo of Fattah’s reported longtime aide. The two AUSAs who signed the memo? Gray and Gibson.

So it looks to me like the Third Circuit is hearing argument Monday on Congressman Fattah’s interlocutory appeal from a ruling refusing the quash a subpoena of email, and the U.S. House and Google are standing with him.

The panel is Ambro, Fuentes, and Roth.

En banc error-correction

Regular readers know I’ve been critical of the Third Circuit for denying en banc rehearing of some recent panel decisions I thought wrong. The retroactivity ruling in Reyes was one: “Wrong, and okay with it,” I wrote. The appeal-waiver ruling in Erwin was another: “An ignominious ending to 2014,” said I.

So I read with interest this blog post by Professor Richard Re on Re’s Judicata, lucidly discussing whether correcting obvious panel errors is an appropriate use of en banc rehearing. My recent scolding of the court rested on my view that panel error correction (or at least big error correction) is a core en banc purpose. Re’s post shows why that ain’t necessarily so.

Here’s the nub:

The more interesting issue is whether Judge Thompson is correct that en banc is inappropriate when based on “disagree[ment] with the result reached by the original panel.” At first blush, Judge Thompson seems to be on solid ground. If mere disagreement were enough, that would indeed mean that “nearly every case would attract the full court’s attention.”

But what if a panel decision were obviously wrong–something, one hopes, that is fairly rare? That possibility isn’t ruled out by FRAP 35(a), which speaks only of what is ordinarily appropriate for en banc. Moreover, that approach would have pragmatic appeal. When a panel makes a tough call, the mere possibility or suspicion of error might not justify the costs of sorting through the merits via en banc review. Only major stakes or disuniformity could then provide the extra justification for en banc. But if a panel issued a decision that is wrong on its face, then why not just reverse it en banc? Writing the en banc opinion shouldn’t take too much effort, and the legal system would avoid the normal costs associated with bad precedent. So long as judges can reliably and quickly identify obvious errors, en banc review for obvious error would seem sensible.

If it makes sense to go en banc to correct obvious error, why doesn’t FRAP 35(a) say that? Perhaps because such a rule would introduce an unfortunate element of disrespect into the en banc process. It is unpleasant enough to write a panel decision that gets rejected en banc. It would be all the more unpleasant if a majority of your colleagues expressly do so because they think you really badly missed the boat. This kind of thing isn’t good for collegiality and might even deter courts from going en banc.

Although Re’s blog has been around since May, I only recently found it, thanks, invevitably, to How Appealing. Re is ludicrously accomplished–Harvard, Yale Law, Kavanaugh and Kennedy clerkships, DOJ Honors Program, a UCLA law professor who surely still gets carded when he orders a beer–and the quality of his posts is extraordinary. Here’s another gem for fellow CA3 nerds, discussing the recent en banc ruling in Katzin.


New opinions: the PLRA may be crazy, but it’s not *that crazy

The PLRA–the unfair federal law governing prisoner lawsuits–requires prisoners to exhaust administrative remedies before they can sue for violations of their civil rights, and it sets a statute of limitations. Is the limitations period tolled while prisoners exhaust? If not, then the prison could prevent court scrutiny of its own actions–could deny the prisoner his day in court, no matter how serious the claim–just by dragging its feet.

Sounds insane, but that’s what two WDPA federal judges held. Happily, today CA3 reversed. The court held that the PLRA statute of limitations is statutorily tolled while prisoners exhaust their administrative remedies. The court also reversed the lower court’s dismissal of other claims, holding that the prisoner’s allegations stated a valid claim.

The case is Pearson v. Secretary. Opinion by Sloviter, joined by McKee and Rendell. Arguing counsel were Jessica Collins of Kellogg Huber (an associate) for the prisoner and Kemal Mericili for the DOC. The panel thanked Kellogg Huber for their able pro bono representation.


Today’s second published reversal in favor of a prisoner plaintiff–did that ever happen in the pre-Orange Is The New Black era?–is a class-action case. The lead inmate alleged that the federal prison had a practice of assigning enemy inmates to the same cell, failing to intervene when inmate-on-inmate violence resulted, and punishing inmates who refused to cell with an enemy. The inmate sued and sought class certification and an injunction. The district court granted summary judgment to the prison, ruling that the suit failed to identify the class clearly enough (ascertainability).

Today, CA3 reversed. CA3 held that class ascertainability was not a prerequisite to class certification when the suit seeks only injunctive relief under FRCivP 23(b)(2). It also held that, to seek discovery in order to oppose summary judgment, a formal discovery motion is not required and an affidavit or declaration is sufficient.

I believe I’ve never read a more strongly worded reversal of a ruling made by a 91-year district judge. I mean, when the federal courthouse in Scranton is named for you, and your former law clerk sits on the appeals court, you’re probably hoping no one will say you “imposed extra requirements . . . that [you] then paradoxically ruled were fatal” and “It is difficult to understand why.” And you surely don’t expect them to say your ruling “undermined, rather than served, the purposes of Rule 23,” “was neither necessary nor appropriate,” and lacks “Common sense.” And this: “Here, the district court granted summary judgment to the defendants without even”–even!–“considering the declaration that Shelton’s attorney filed . . . . This was an abuse of discretion.” Kapow.

The case is Shelton v. Bledsoe. Opinion by McKee, joined by Smith and Sloviter. Arguing counsel were Christine Levin of Dechert for the inmate and Michael Butler for the government.


In today’s third and final case–a civil case, also a reversal–the panel held that the district court misapplied state law when it dismissed the suit pursuant to an outdated version of New Jersey’s “idiosyncratic” entire-controversy doctrine.

The case is Ricketti v. Barry. Opinion by Hardiman, joined by Smith and Barry. Arguing counsel were Bruce Crelin of Kern Augustine for the appellant and Robert Travisano of Epstein Becker for the appellees.

More on the Weev / Auernheimer case

Ho hum, just another news profile of a successful CA3 appellant: an article on Backchannel by Adam Penenberg about hacker activist Andrew Auernheimer, whose criminal conviction Orin Kerr persuaded the Third Circuit to vacate on venue grounds last year. My prior posts on the case here, here, and here.

The whole article is worth the read, but here’s the part discussing the appeal:

Even before sentencing, [trial defense counsel Tor] Ekeland had begun working on the appeal, lining up the Electronic Frontier Foundation (EFF) and George Washington University law professor Orin Kerr, a leading legal expert on computer crime. Kerr didn’t believe that Auernheimer (and Spitler, who pleaded guilty and received three years probation and the same 73 grand in restitution as weev) had committed unlawful access. He also questioned why the case warranted a felony conviction. They didn’t pilfer passwords or hack into any servers. They found a gaping security flaw in AT&T’s network. He disagreed with the restitution, which by law was supposed to cover AT&T’s losses, yet the company had never claimed any. Also joining Ekeland’s team were Hanni Fakhoury from Electronic Frontier Foundation; Marcia Hofmann, a former EFF staff attorney who had gone into private practice; and penning a brief in support was Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society. Without them, Ekeland says he could never have marshalled the resources and knowhow he needed to launch the appeal.

But it was Kerr who would argue the case before the court, which was fine by Ekeland. “When you have Mariano Rivera to come in and close your game, you don’t go out and fucking pitch yourself,” he says. They faced an uphill battle: only 8.7% of cases on the Third Circuit are reversed on appeal.

In addition to his objections with the CFAA, Kerr was disturbed by the government’s choice of venue — transporting Auernheimer from his Arkansas home to stand trial more than a thousand miles away from his family, friends and resources, adding tens of thousands of dollars to his trial expenses at a whim. A mere fraction of the email addresses he had scraped from the servers belonged to Jersey residents; the harm to the state was, at most, circumstantial.

* * *

On March 19, 2014, Ekeland was in Philadelphia to appear with Kerr and lawyers from EFF before the Third Circuit, which covers New Jersey and other Eastern states. The courtroom was packed, and a crowd watched on a monitor in the hallway. Security was tight. U.S. marshals brought a box of plastic handcuffs and some explosive-sniffing dogs. Kerr had just begun his remarks when one of the justices cut him off, telling him he wanted to discuss the issue of venue. The three justices wanted to know why the trial was held in New Jersey.

Ekeland couldn’t believe it. They were parroting lines from his own briefs from the trial, as well as Kerr’s. As the proceedings dragged on, it was clear they were hostile to the government’s arguments. One even reminded the government lawyer that venue is mentioned in two places in the United States Constitution.

It sure is, baby! Ekeland thought.

Afterward, as the room cleared of weev’s supporters, one of the judges joked, “We have other interesting cases today, you know.”

I can attest to the tight security at the argument. Besides what the article mentions, there also was a second metal-detector set up outside the courtroom–that’s the only time I’ve ever seen that.

H/T Howard Bashman at How Appealing.

New opinion: court affirms 2255 denial

In the court’s first published opinion of 2015, CA3 affirmed denial of relief in a 28 USC 2255 appeal. The claim at issue is ineffective assistance of counsel, which comes up a lot in post-conviction cases, but the facts are quirky enough that I don’t see this case having much impact.

Davenport pled guilty. A paragraph in his plea agreement listed points that the government and the defendant agreed to both recommend at sentencing. As originally drafted, one of those points was that the defendant possessed a gun, but during plea negotiations the parties struck the gun-possession stipulation. At sentencing, Davenport argued he did not possess a gun, and in response the government argued that he did. In his 2255, Davenport argued that counsel was ineffective for failing to argue that the government breached the plea agreement, essentially arguing that striking the stipulation that he did possess a gun was tantamount to stipulating that he did not possess a gun.

The district court denied relief, and today CA3 affirmed, holding that the government did not breach the plea agreement so counsel was not ineffective for arguing otherwise. The court did note that it gives the benefit of any doubt about the terms of a plea agreement to the defendant, and that the government must adhere strictly to its terms. Logic nerds will thrill to see the court cite “the logical fallacy of the inverse–the incorrect assumption that if P implies Q, then not-P implies not-Q.”

The case is US v. Davenport. Opinion by Hardiman, joined by Fisher and Jordan. Arguing counsel were AUSA Christian Fisanick for the government and K&L Gates partner Nicholas Ranjan for the petitioner. The court acknowledged Ranjan’s “excellent advocacy” as pro bono counsel.

Divided court denies en banc rehearing in Erwin appeal-waiver case

With four judges dissenting, the Third Circuit today denied en banc rehearing in United States v. Erwin, one of its most controversial decisions of 2014. Rendell, Ambro, Greenaway, and Vanaskie would have granted en banc rehearing. Erwin held that defendants who violate their plea deals can be resentenced without the deal.

I’ve posted about Erwin here, here, and here. The panel opinion is here.

An ignominious ending to 2014.

New opinion: medical director who supervised kickback payments properly received position-of-trust enhancement

A not-so-Happy New Years Eve for Dr. Ashokkumar Babaria, whose 46-month sentence the Third Circuit upheld today. Dr. Babaria was convicted of paying kickbacks to physicians in exchange for Medicare and Medicaid patient referrals. At sentencing, the district court imposed a two-level enhancement for abusing a position of trust. On appeal, the CA3 panel affirmed, holding that Dr. Babaria’s position as medical director and manager of a medical provider qualified as a position of trust under the Guidelines.

The case is United States v. Babaria. Opinion by Barry, joined by Smith and Hardiman. Arguing counsel were Joseph Mancano for the defendant and Glenn Moramarco for the government.

Court (and blog) holiday-schedule info

The Court will be closed on December 26, the day after Christmas, in addition to being closed on the December 25 federal holiday. Filings otherwise due on the 26th now are due on the 29th. Also, litigants filing emergency motions requiring action before the 31st are instructed to leave detailed messages notifying the clerk. Court notice with details here.

Meanwhile, I plan to take a break from blogging until January 5. Will I be able to stay away?

Happy holidays to all.

New opinion: NFL concussion-suit opinion issued on class-certification jurisdiction

I’ve blogged about the NFL concussion suit appeal here and here and here and here because its a big case and the appellate counsel involved are celestial.

Back in September, CA3 entered an order denying an interlocutory petition by a group of retired players who objected to preliminary class-certification. Today, the divided panel issued its opinion explaining the basis for that denial.

The majority held that it lacked jurisdiction to hear the petition because the district court’s class-certification ruling was labelled conditional. The dissent argued this holding will “result in inefficient (indeed, chaotic) piecemeal litigation,” and included an unusual nod to the majority author as “a well-regarded textualist.”

The case is In re: National Football League Players Concussion Injury Litigation. Majority opinion by Smith, joined by Jordan; folksy dissent by Ambro. Arguing counsel were Steven Molo of MoloLamken for the settlement objectors and Bruce Birenboim of Paul Weiss and Samuel Issacharoff for the settlement-proponents.

Alumni profile of CA3-nominee Restrepo

Tulane Law School last week published this positive profile of pending CA3-nominee Luis Restrepo, a Tulane-Law alum.

A highlight:

“Phil is a widely respected member of the Philadelphia legal community and a distinguished Tulane alumnus,” said Tulane University President Michael Fitts, who spent 14 years as law school dean at Penn. “He has developed an excellent reputation over the years, and he will be a great addition to the federal appellate bench. Phil is also just a warm and engaging guy.”

Media coverage of Restrepo’s nomination has been predictably sparse, so this brief profile was in interesting read.

New opinion: false-advertising injunction upheld

Today’s only published opinion is an affirmance in a Lanham Act false-advertising appeal.

CA3 today upheld a preliminary injunction barring a steam-iron seller from making false claims about its product. The product packaging claimed that the iron had “more powerful steam” than a competitor’s, and in fine print on the package it defined just what it meant by that phrase. But when it was sued, the company argued that, even if its iron wasn’t more powerful per its own fine-print definition, its “more powerful steam” claim still could be true because some consumers understood the phrase differently than the small-print definition on the package. The district court refused to consider this consumer-survey evidence, and the panel affirmed:

[W]e principally consider how courts should interpret an advertising claim when the packaging or label unambiguously defines a claim term. The District Court decided that the packaging’s definition of a claim term applies to the claim’s explicit message. Based on this decision, the District Court disregarded consumer survey evidence offering alternative meanings for the claim term. We agree with the District Court and find its approach firmly based in false advertising law and logic.

The case is Groupe SEB USA v. Euro-Pro Operating. Opinion by Fisher, joined by Jordan and Hardiman. Arguing counsel were Roger Colaizzi of Venable for the seller and Gretchen Jankowski of Buchanan Ingersoll for the plaintiff.

New opinion: class-action-removal standards

A policyholder brought a class-action suit against an insurance company in state court, and the insurance company removed the case to federal court under CAFA. The policyholder moved to remand, and the district court granted the motion. Today, CA3 reversed in part in an opinion focused on the burdens of proof for class-action-removal jurisdiction. CA3 held that the district court erred by failing put on the remand-proponent the burden of proof on CAFA numerosity and erred in finding that numerosity was not satisfied. It held that the district court correctly found that that the remand-opponent failed to meet its burden of proof on amount-in-controversy, but left the door open for them to fix that on remand.

The case is Judon v. Travellers Property. Opinion by Smith, joined by Hardiman and Krause. Arguing counsel were Suzanne Tighe of Haggerty Goldberg for the policyholder and Joseph Kernen of DLA Piper for the insurance company.

New (precedential?) order: remanding for suppression findings

In an unusual little order, CA3 today remanded for the district court to state the factual basis for its order denyng suppression of the fruits of a search. Such findings, the panel explained, were required by Fed. R. Crim. P. 12(d).

The case strikes me as unusual because, while it posted on the court’s website on the page for  precedential opinions, it was titled a order rather than an opinion, the order itself was not labelled precedential, and it was signed by one judge and attested by the court clerk. I am uncertain whether future panels will consider it precedential. I’m also not clear how panels decide whether to issue and an order instead of an opinion. Certainly an order is more efficient here, but I’m not sure how this error was different from other lower-court errors the court corrects by opinion.

One other point that may or may not mean something. In a footnote, the panel observed that the defendant sought to appeal on other grounds but ruled that these grounds were waived by his guilty-plea appeal waiver. No mention of voiding the plea deal as the panel had done in Erwin, en banc rehearing granted.

All of which may perfectly routine and mean nothing. If anyone has more insight about any of that, comment away.

The case is United States v. Diaz-Hinirio. Shwartz signed the order, Chagares and Jordan also were on the panel.


New opinion: Dodd-Frank whistleblower suits not exempt from arbitration agreements

First, the galling facts alleged:

Appellant Boris Khazin is a financial services professional and former employee of Appellees TD Ameritrade, Inc. and Amerivest Investment Management Company (collectively with other Appellees, “TD”). When Khazin began working for TD, the parties executed an employment agreement in which they agreed to arbitrate all disputes arising out of Khazin’s employment.

At TD, Khazin was responsible for performing due diligence on financial products offered to TD customers. When he eventually discovered that one of TD’s products was priced in a manner that did not comply with the relevant securities regulations, he reported this violation to his supervisor, Lule Demmissie, and recommended changing the price to remedy the violation.

In response, Demmissie instructed Khazin to conduct an analysis of the “revenue impact” of his proposed change. The analysis revealed that although remedying the violation would save customers $2,000,000, it would cost TD $1,150,000 in revenues and negatively impact the balance sheet of one of Demmissie’s divisions. After reviewing these results, Demmissie allegedly told Khazin not to correct the problem and to stop sending her emails on the subject. When Khazin subsequently approached her to renew his initial recommendation, she again informed him that no change would be made.

Over the next few months, Demmissie and TD’s human resources department confronted Khazin about a purported billing irregularity that, according to him, was unrelated to his duties and turned out to be nonexistent. Nevertheless, Khazin was told that he could no longer be trusted, and his employment was terminated.

So, TD allegedly was breaking the law and costing their customers money, but they decided to keep breaking the law and costing their customers money, because complying with the law and saving their customers money would cost them some money. And then they allegedly trumped up a reason to fire the oversight officer who found the violation. And when the fired oversight officer sued, they fought to dismiss the suit to make him arbitrate instead.

Party like its 2008.

After Wall Street’s recklessness caused the greatest global financial catastrophe since the Great Depression, Congress enacted Dodd-Frank. One of the act’s purposes was to increase financial-industry transparency, and one of the ways it did that was by paring back arbitration clauses that keep whistleblowers out of court. If banks can fire whistleblowers and then prevent those fired whistleblowers from suing in court, the thinking went, then lawbreaking banks win and whistleblowers (and the rest of us) lose.

Specifically, Dodd-Frank contains a provision that voids arbitration agreements requiring arbitration of “a dispute arising under this section.” Today, CA3 held that “this section” refers only to the older Sarbanes-Oxley act, not Dodd-Frank itself, and affirmed dismissal of a fired whistleblower’s Dodd-Frank suit.

The case is Khazin v. TD Ameritrade. Opinion by Fuentes, joined by Greenberg and Cowen. Arguing counsel were Keith Biebelberg for the fired whistleblower and Aaron Taishoff (an associate) for the whistleblower-firers.

New opinion: panel strikes down immigration regulations

On Friday, a CA3 panel struck down an immigration regulation as arbitrary and capricious and in violation of the APA, reversing the district court’s determination that the case was not ripe because the agency had not ruled on the issue yet.

The regulation at issue governs temporary work visas for unskilled workers, and the thrust of the challenge was that the regulation allowed companies to bring foreign workers into the country at artificially low wages. CA3 held that the case was ripe, even though the agency was reviewing the challenged rule, because the agency already is enforcing the rule. The court then reached the merits rather than remanding to give the district court the first crack.

The case is Comite De Apoyo A Los Trabajadores Agricolas v. Perez. Opinion by Greenberg, joined by Fuentes and Cowen. Arguing counsel were Edward Tuddenham for the challengers and Geoffrey Forney for the government.

I’m no administrative-law expert, but I suspect this interesting case is a decent candidate for cert even though the panel distinguished rather than disagreed with sister-circuit cases.

CA3 orders response to Erwin rehearing petition

CA3 just ordered the government to file a response to a petition for rehearing in one of the most closely-watched appeals of the year.

Back in August, a CA3 panel decided US v. Erwin, holding that criminal defendants who violate their appeal waivers void their plea deals. Panel opinion here. The widely read Sentencing Law & Policy blog posted about Erwin here and noted a new law review article discussing Erwin here.

I posted about Erwin here (my all-time second-most-viewed post) and here, observing:

[A]lmost a third of criminal defendants in CA3 are getting sentence reductions for cooperation, like Erwin did. The vast majority of these reductions are the product of plea deals, like Erwin’s was. Now, after Erwin, every one of those reductions is at risk . . . .

Last month, Erwin filed a petition for rehearing en banc. That petition was joined by an amicus for NACDL by David Fine and Peter Goldberger, which includes this striking passage (I’ve omitted the cites):

[T]here are certainly cases in which a defendant might reasonably question whether his plea was entered knowingly and voluntarily or whether an express or implied exception to the waiver might allow him an appeal. But the Panel Opinion makes no distinction between plainly baseless appeals and close-but-ultimately-unsuccessful appeals. As a result, the Panel’s precedent may well cause all but the most risk-insensitive defendants to forego appeals even when they may have valid claims.

Some might see that deterrent effect as beneficial, but there is a reason the Court recognizes that waivers must be entered into knowingly and voluntarily and, even in the strictest appellate waivers, that there must be an implicit exception for miscarriages of justice. Unlike most civil contract actions, cases involving plea agreements implicate constitutional rights and, usually, one party’s liberty. Given the interests at stake, the Court should be sure that any remedy for a breach of an appellate waiver does no more than necessary to restore the parties’ expectation interests in the specific case before the Court lest a punitive remedy chill other, later litigants who might have strong – but not ultimately prevailing – claims that their waivers should not be given effect.

Today, Judge Chagares, on behalf of the en banc court, ordered the government to file a response. Stay tuned.

New opinion: former passengers lack standing to challenge vehicle search

It is well-settled that owners of cars, but not mere passengers, have standing to object to police searches of vehicles. But what about former passengers? Here, a defendant was a former passenger — he had ridden in the getaway car before it was abandoned at a dead end — and he asked the court to rule that former passengers have standing to challenge a vehicle search because (for reasons not apparent from the opinion) they have a stronger privacy interest in the contents of a car than current passengers do. CA3 described that as “a somewhat creative argument,” but rejected it and affirmed.

The case is US v. Burnett. Opinion by Greenberg, joined by Fuentes and Cowen. The case was decided without oral argument.

The opinion begins with this offbeat observation:

A well-informed criminal concerned about having standing to challenge a search of his escape vehicle if he is apprehended after a robbery would recognize that even though the owner of the vehicle may claim a privacy interest in the vehicle and its contents, a passenger or former passenger of the vehicle faces an uphill battle if he attempts to establish that he has standing to move to suppress evidence found in the vehicle during the search.


Scotus argument today in CA3’s Facebook-threats case

The Supreme Court held argument today in a case from the Third Circuit. The case is Elonis v. United States, and the central issue is the standard for criminal liability for online threats.

Today’s argument transcript is here. My post on the Elonis cert grant is here. Some early coverage of the argument by Lyle Denniston on Scotusblog is here, Brett Kendall in the Wall Street Journal is here, and Richard Wolff in USA Today is here. Wolff predicted:

it seemed the most likely outcome would be to send the case back for a second trial, with instructions that jurors prove the despondent author either knew his words could cause fear or was reckless in posting them repeatedly.

Having recently been reversed both in Bond and in Carman, CA3’s Scotus cold streak may continue.

En banc rehearing granted on Alleyne harmlessness

The Third Circuit today granted en banc rehearing in US v. Jermel Lewis, a September split-panel decision in which the majority held that failure to submit to a jury facts increasing a mandatory-minimum sentence was harmless error. Fisher wrote the panel majority opinion, joined by Chagares, and Rendell wrote the panel dissent. Rehearing is set for February 19.

Today’s order granting rehearing is here; the now-vacated panel opinion is here; my blog post on the panel opinion is here.

New opinion — whistleblower-suit win

When Arlene Ackerman still was superintendent of Philadelphia’s school district–before she resigned in exchange for a payment from the desperately cash-strapped district of almost $1 million, and before she then filed for unemployment benefits–she allegedly broke the rules by awarding a no-bid contract for school security cameras. A district administrator alerted the local news, the FBI, and state officials–and then he was fired. So he sued the district, Ackerman, and others under 1983 and Pennsylvania’s whistleblower law. The defendants sought dismissal based on qualified immunity, which the district court denied. Today, CA3 affirmed, holding that the defendants were not entitled to dismissal on qualified-immunity grounds. I’m not a First Amendment qualified-immunity expert, but this looks to me like a significant case for its embrace of a robust role for whistleblowers.

The case is Dougherty v. School District of Philadelphia. Opinion by Fisher, joined by Jordan and Hardiman. Arguing counsel were Blank Rome associate Will Rosenzweig for the school district and solo star Lisa Mathewson for the whistleblower.

New opinion — a win for White Chocolate

When I’m prosecuted, I really hope the prosecutor lards the case caption with an incriminating-sounding a/k/a for me. (= ‘also known as’).  “USA v. Matthew Stiegler a/k/a Puppy-Squisher” or something. Some prosecutors can’t resist putting them in the caption, I guess they think they show what a bad guy the defendant is. But I suspect what judges really see is a red flag of prosecutorial overreaching.

Which brings us to today’s case, US v. Dwayne Thompson a/k/a White Chocolate a/k/a D. Mr. Chocolate was a cocaine supplier convicted of conspiracy to distribute cocaine and money laundering and sentenced to 292 months. The district court denied suppression of the fruits of a vehicle search and a confession he gave before he was presented to a magistrate judge for arraignment. Today, CA3 affirmed on the fruits but reversed and remanded on the statement. It held that Chocolate’s McNabb-Mallory right to prompt presentment was violated because most of the delay in arraigning him was due to the government’s effort to get him to cooperate.

Opinion by Greenaway, joined by McKee and Fuentes. Arguing counsel were Sarah Gannett of the EDPA FD for Mr. Chocolate and WDPA AUSA Michael Ivory for the government.

New opinion — federal-question jurisdiction reversal

This appeal turns on federal-question jurisdiction. The plaintiffs challenged certain short sales of stock in state court, and the defendants removed to federal court. The district court denied the plaintiffs’ request to remand. Today, CA3 held that there was no federal-question jurisdiction and reversed. Along the way, the court split with the 9th Circuit on the question of whether an exclusive-jurisdiction provision itself conferred jurisdiction.

The case is Manning v. Merrill Lynch Pierce Fenner & Smith. Opinion by Smith, joined by Vanaskie and Sloviter. The case was decided without oral argument. This is a notable David-over-Goliath appeal win. The defendants were represented on appeal by a slew of household-name firms, while the plaintiffs were represented by a solo practitioner whose website is just terrible.

CA3 gets a Scotus smackdown on qualified immunity

Back in May, CA3 reversed and remanded in a civil-rights case arising out of a police property entry. The panel held that the “knock and talk” exception to the warrant requirement did not apply because the police officers had gone directly to the defendant’s back door, and, further, that this rule was clearly established such that the officer was not entitled to qualified immunity from suit. The case was Carman v. Carroll, CA3 opinion here, my summary here.

Today, the not-a-mere-error-correction-Court-except-when-we-are Supreme Court summarily reversed on qualified-immunity grounds in a unanimous per curiam opinion. The Court “assum[ed] for the sake of argument that controlling circuit precedent could constitute clearly established federal law” for qualified immunity purposes, but held that the case relied upon by CA3 was insufficient to clearly establish. In a line that’s no doubt causing a little squirming today in my favorite circuit, the opinion says “The Third Circuit’s decision is even more perplexing” in light of cases from other circuits and states that came out differently on the 4th Amendment issue.

The Court today expressly did not reach the 4th Amendment issue of whether an officer can start a knock-and-talk at the back door.

Thanks to Peter Goldberger for bringing today’s ruling to my attention.

New opinion: criminal affirmance

One opinion today, an affirmance in a criminal appeal from a child-porn conviction. Issues on appeal included whether a search warrant’s failure to identify the items sought requires exclusion of the fruits of the search.

The case is US v. Franz. Opinion by Jordan, joined by Fisher and Hardiman. Arguing counsel were Richard Hark for the defendant and Alicia Freind for the government.


New opinion — immigration affirmance

Not a single published opinion last week, the first time that’s happened since I started my blog. Kinda sad.

But we finally get one today. It’s an immigration appeal, rejecting the petitioner’s argument that so-called stop-time rule poses a new disability on his past conduct.

The case is Guzman v. AG. Opinion by Rendell, joined by Greenaway and Krause (is this her first published join?). Arguing counsel were David Katona for the petitioner and Tim Ramnitz for the government.

New opinion — Jim Thorpe will stay buried in Jim Thorpe

Ellie 834

Tourist train in the station, Jim Thorpe, PA. Photo by me.

Jim Thorpe was an extraordinary athlete. Jim Thorpe is a lovely borough in Carbon County, PA. The athlete is buried in the town. Wikipedia explains how it happened:

Following the 1953 death of renowned athlete and Olympic medal winner Jim Thorpe, Thorpe’s widow and third wife, Patricia, was angry when the government of Oklahoma would not erect a memorial to honor him. When she heard that the boroughs of Mauch Chunk and East Mauch Chunk were desperately seeking to attract business, she made a deal with civic officials. According to Jim Thorpe’s son, Jack, Patricia was motivated by money in seeking the deal. The boroughs merged, renamed the new municipality in Jim Thorpe’s honor, obtained the athlete’s remains from his wife and erected a monument to the Oklahoma native, who began his sports career 100 miles (161 kilometres) southwest, as a student at the Carlisle Indian Industrial School in Carlisle, Pennsylvania.

If it’s odd to imagine selling your ex’s remains because you need the cash, it’s even odder to imagine renaming your town after a famous guy who never set foot there as a business-recruitment scheme.

Anyway, odd and odder became a federal case when some members of Thorpe’s family sued the borough seeking return of his remains under the Native American Graves Protection and Repatriation Act, which requires museums to return Native Americans remains upon request by their descendants or tribe. The district court ruled in the plaintiff family members’ favor, but today CA3 reversed, holding that the Act does not apply because the borough is not a museum.

The case is Jack Thorpe v. Borough of Jim Thorpe. Opinion by McKee, joined by Chagares and Shwartz. Arguing counsel were William Schwab for the appellants, Christopher Fusco for cross-appellees, Stephen Ward for the appellees, and Daniel Wheeler for amicus curiae.

A closer look at Bashman’s winning brief

One of my main reasons for starting this blog was to spotlight high-quality appellate advocacy. My motives are both selfish (I improve my own skills by learning from the best, and I learn by writing about it) and not (bringing attention to top-shelf appellate lawyering helps raise the standard of CA3 practice overall). My posts about appellate advocacy have been among my all-time most-read posts: this look at Orin Kerr’s oral argument in the Weev appeal and this post on the power of clear writing, to name two.

Today I want to take a closer look at Howard Bashman’s opening brief in Schmidt v. Skolas, a CA3 appeal he won last week (link to the brief in PDF here, CA3 opinion here). Schmidt arose as a shareholder suit against a drug company alleging below-market sale of assets. The district court dismissed the suit as untimely, and Bashman entered the case on appeal.

Four things stand out that Bashman nailed:

Focus. The best thing this brief does — and the hardest — is pare the appeal down to its core. Bashman chooses one, limited issue: premature statute-of-limitations dismissal. He refuses to clutter his brief and weaken his position by swatting at all the alternative grounds for affirmance; I’m sure he knew they were coming, but he correctly judged that the panel would decline to reach them. He cites his key case in the argument summary’s first sentence. He comes in at 7,560 words, just over half the limit. This brief isn’t a slap-fight, it’s a knockout punch.

Clean writing. Bashman writes not to impress, but to persuade. The sentences are clear on the first reading. Here’s an example from the argument summary. The first sentence explains that suits may be dismissed under 12(b)(6) on statute-of-limitations grounds only in the rarest of cases. Second sentence:

The district court thought that this was such a case, but the district court was wrong — not only on substance, when rejecting plaintiff’s proper invocation of the discovery rule, but also procedurally in relying on materials outside of plaintiff’s amended complaint to hold all claims time-barred.

The single-syllable words in the opening clause are strong and clear. The parts that are hardest to understand are in the second half of the sentence, where the reader can digest them more easily, and they are prefaced with quick summarizing transitions (“not only on substance,” “but also procedurally”).

Clarity like that is no accident. Here’s how a less careful writer might say the same thing:

Because the district court in this case improperly rejected plaintiff’s invocation of the discovery rule, and because it also relied on materials outside of plaintiff’s amended complaint to hold all claims time-barred, this was not one of the extraordinary cases where dismissal at the 12(b)(6) stage was warranted, and the district court’s ruling to the contrary plainly was substantive and procedural error requiring reversal.

Clarity is power.

Confident citing. Bashman writes with authority because he leans less on authority. Lesser advocates fill their briefs with quotes and end every sentence with a citation or three. Bashman hammers the key cases, but his arguments are his own.

Consider his substantive, discovery-rule argument. The first 7 pages contain only 3 case cites.  Eight of the first 11 paragraphs are cite-free. Block quotes, record quotes, or footnotes? Zero. That’s radically different from most briefs. I’ve written love notes with more F.3d cites.

Good typography. Bashman didn’t just build a strong house, he gave it a nice coat of paint, too. His brief looks professional because he avoids the most common typography errors: over-capitalization, underlining, two spaces between sentences, boring Times New Roman font. He even gets picky stuff right like using en-dashes instead of hyphens for page ranges. Looks to me like he’s read Butterick.

Yesterday I asked which has a bigger impact on winning, good lawyers or good issues. Reversal in Schmidt was no sure thing, and in lesser hands the outcome may well have been different.

Update:  here is a link to the opening brief:  Schmidt opening brief. And here is Bashman’s reply brief: Schmidt reply.

New opinion: Bashman wins another

Another Howard Bashman win last week, this one on statute-of-limitation grounds. I’m going to post on the case more shortly.

The case is Schmidt v. Skolas. Opinion by Sloviter, joined by Greenaway. Dissent by Rendell. Arguing counsel were Bashman for the appellant and , for the appellees: Michael Kichline of Dechert, Michael Blanchard, Jeffrey Weil of Cozen O’Connor, and John Ryan.

A remarkable 2255 reversal, plus a False Claims affirmance

Which is a better predictor of victory on appeal, a good issue or a good lawyer? Here’s my ludicrous proposal for an experiment to test that. Start with 100 lawyers and 100 cases. Have each of the 100 lawyers do all 100 appeals. Then you have data on which lawyers won more often (better lawyers) and on which cases won more often (stronger cases). Which would have better shot to win, the 50th-best lawyer with the 10th-strongest case, or the 10th-best lawyer with the 50th-strongest case? I bet most judges think the strength of the issue has more of an impact on who wins, but my own hunch is that the quality of the lawyer matters more.

Such navel-gazing is inspired by today’s fascinating reversal in US v. Dung Bui. Mr. Bui pled guilty to conspiracy to distribute drugs. Apparently the reason he chose to plead guilty was that his lawyer told him that a guilty plea would let him avoid a 10-year mandatory minimum prison sentence per the “safety valve.” But, in fact, he never was eligible for the safety valve, so he got the mandatory minimum. Bui filed a motion under 28 USC 2255 (the federal-conviction equivalent of habeas corpus) arguing that his lawyer provided ineffective assistance of counsel by incompetently advising him to plead guilty. He lost in district court, pro se like almost all 2255 litigants, and then appealed. CA3 granted a certificate of appealability (meaning they ruled that the issue was debatable among jurists of reason and therefore the appeal was allowed to proceed), and they appointed a lawyer to do the appeal. And that’s where it gets interesting.

The appointed lawyer (not an appellate specialist, judging from his website*) reviewed the case and decided that the issue was frivolous. So instead of filing a brief, he filed an Anders brief and asked the court to let him withdraw. The court granted his motion to withdraw, but then it did something remarkable: it appointed new counsel to replace him. Those new counsel were Brett Sweitzer and Maria Pulzetti, Assistant Federal Defenders in the E.D.Pa. Federal Community Defender’s appeals unit. They are two of the ablest appellate lawyers I know.

The upshot: far from agreeing that Bui’s issue was frivolous, today a unanimous panel granted relief on his plea-stage-IAC claim and reversed. The main legal issue was whether the district court was right that the plea colloquy cured counsel’s mistaken advice — it did not here, as it would in “the majority of guilty plea cases,” because the judge never said Bui would be ineligible for the safety valve and some of his statements about sentencing discretion were confusing given the mandatory minimum.

(And, to add another wrinkle to the do-lawyers-matter question, Bui had a co-defendant who lost on “the same issues” in an unpublished opinion by a different — and more conservative — panel 3 weeks ago, here. That panel denied on prejudice grounds, relying on the plea and colloquy.*)

The case is US v. Bui. Opinion by Greenaway, joined by McKee and Fuentes. The case was decided without oral argument.

In today’s other published opinion, the court upheld the dismissal of a qui tam suit under the False Claims Act on the ground that the claimant lacked the direct and independent knowledge required to establish subject-matter jurisdiction.

The case is US ex rel. Schumann v. Astrazeneca Pharm. Opinion by Roth, joined by Greenaway and Vanaskie. Arguing counsel were Paul Honigsberg for the claimant and Mark Haddad and Catherine Stetson for the appellees.

* To be clear, I’m not familiar with either Bui’s original appeal lawyer or Pham’s lawyer, and apart from reading the Anders brief and skimming Pham’s opening brief, I know nothing about the quality of their work. Nothing here is intended as a comment on either’s ability or performance in this case.

Wrong, and okay with it.


Train wreck at Montparnasse 1895 (Wikimedia Commons)

Four months ago, a CA3 panel issued  a published opinion with a gross legal error. I posted about it when it was issued, here. It was a surprising blunder, but judges are busy and the mistake wasn’t easy to catch just by reading the opinion. Mistakes happen, and they can be fixed. So, even though it had won the appeal, the E.D.Pa. US Attorney’s office promptly moved to amend the opinion to correct the error. On Friday, three and a half months later, the panel finally ruled on the government’s motion to amend.


Denied? Huh. On what grounds? you ask. Well, here is the explanation provided by the panel, see if you can follow the legal reasoning:

The foregoing motion is denied.

It is signed by the author of the original opinion, Judge Nygaard, on behalf of the original panel, Chief Judge McKee and Judge Chagares.

Not a proud day for the United States Court of Appeals for the Third Circuit.


New opinions — reversal of civil-rights dismissal and an amended opinion

CA3 issued a remarkable reversal today in an appeal from dismissal of a 1983 suit. It all started when Lagano, a mob informant, was murdered. Apparently the mob found out he was informing and killed him. Lagano’s estate sued the local prosecutor’s office and the chief detective, alleging that they leaked Lagano’s informant-status to the mob. The 3-count suit was brought under both 1983 and NJ law. The district judge (a Clinton appointee and a Spottswood Robinson clerk) dismissed the entire suit, on several grounds: 1983 personhood, Eleventh Amendment sovereign immunity, qualified immunity, and statute of limitations.

Suffice to day CA3 did not see things the way the district court did. It reversed on personhood (on two independent grounds) and sovereign immunity and qualified immunity. But it did affirm on statute of limitations (which applied only to 1 of the 3 counts).

The case is Estate of Lagano v. Bergen Co. Prosecutor’s Office. Opinion by Vanaskie, joined by Chagares and Greenaway. Arguing counsel were David Ragonese (he’s since become a state judge) for the estate and Brian Flanagan for the prosecutor’s office and investigator.

Today’s other opinion was an amended opinion in a notable prisoner-rights case originally decided in August. The case is Montanez v. Secretary, my post on the original opinion is here. At a glance, the result appears unchanged. I’ll update this post if I figure out what’s different.

New opinions: Bashman wins, plus an arbitration case

Howard Bashman’s appellate blog How Appealing is essential reading for federal appellate junkies everywhere. And he’s a highly respected appellate advocate in his own right. So when he argues a CA3 case, and he’s opposed by another top-shelf appellate specialist, it deserves a little extra attention. Even if the legal issues in the appeal are a trifle dry.

Bashman represents a plaintiff born with a birth defect and her mother. The plaintiffs alleging that GlaxoSmithKline drug Paxil caused the defect and sued them in PA state court. GSK removed to the case to federal court, and the district court remanded to state court because it found that GSK was a citizen of PA. Then CA3 then held in another case that GSK is a citizen of DE, so GSK removed to federal court a second time, and this time the district court denied removal but certified the issue for interlocutory appeal. The issue in the case was whether the second removal was timely under 28 USC 1446. Ruling for Bashman’s clients, CA3 today reversed.

The case is A.S. v. Smithkline Beecham. Opinion by Shwartz, joined by Smith and Roth. Arguing counsel were Howard Bashman for the plaintiffs and Lisa Blatt of Arnold & Porter for GSK. The argument was less than a month ago, audio is here.

In today’s other published case, CA3 reversed a district court opinion that had enforced an arbitration clause against a non-signatory to the agreement based on equitable estoppel.

The case is Flintkote Co. v. Aviva. Opinion by Vanaskie, joined by Smith and Shwartz. Arguing counsel were Fred Alvarez for the appellant and Louis Chiafullo for the appellee.



New opinion–plain error to sentence without offering allocution

CA3 today held that a district court committed plain error when it failed to offer the defendant an opportunity to make an allocution prior to being sentenced for violating a term of supervised release. The court rejected the government’s argument that the error was not prejudicial because the parties had agreed to the sentence.

The case is United States v. Paladino. Opinion by Greenaway, joined by Fuentes and Nygaard. Arguing counsel were Sarah Gannett for the defendant and Michael Ivory for the government.

New opinion–en banc ruling in the car GPS search case

In a major 4th Amendment ruling, a sharply divided en banc court today held that evidence gained through warrantless installation of a GPS on a car was admissible under the good-faith exception to the exclusionary rule.

The case is US v. Katzin. Opinion by Van Antwerpen, joined by Rendell, Fisher, Chagares, Jordan, Hardiman, Vanaskie, and Shwartz. Main dissent by Greenaway, joined by McKee, Ambro, Fuentes, and Smith; Smith also wrote a brief dissent that the other dissenters all joined. Arguing counsel were Catherine Crump of ACLU for Katzin and amici, and Robert Zauzmer for the government.



New opinions — eminent domain, bankruptcy, and ERISA

After a fairly quiet CA3-opinion week, three today.

First up, a divided panel today reversed in an eminent-domain appeal. Here’s majority’s introduction:

The issue before us is straightforward: does Columbia
Gas Transmission, LLC (“Columbia”), have the right of
eminent domain to obtain easements over the land  of
objecting landowners, outside of the existing right of way, in
order to replace deteriorating pipeline? The answer is equally
straightforward and clear: yes.

And the dissent’s:

The  Majority  interprets  the  pertinent  regulations  to
unambiguously  allow  private gas companies to  replace  a
pipeline anywhere, on anybody’s  property, without any type
of formal administrative review.    In  deciding  that  the Federal
Energy Regulatory Commission (“FERC”)  has  extended such
a broad  grant  of the sovereign power of eminent domain  to
private companies, the Majority  relies on  a definition  of
“replacement”  not  provided  in the  text  of the  regulations  but
supplied by  Columbia,  even though  it is at odds with what
Columbia admits is the common understanding  of what
constitutes  a “replacement” and despite the fact that  FERC
had never  adopted  that definition  until,  in the middle of an
unrelated  rulemaking,  the agency  crafted a footnote  in
reaction to  the District Court’s decision in this case.  In my
view, the Majority’s  limitless  reading of the regulations is
deeply problematic and renders them  constitutionally suspect.
To avoid  logical difficulties within  the regulations, as well as
to avoid  constitutional concerns,  some sort of locational
limitation  must  serve as  a constraint on  pipeline replacement
outside of an original right-of-way.

The case is Columbia Gas v. 1.01 Acres. Opinion by Rendell joined by Chagares, dissent by Jordan. Arguing counsel were John Wilburn of McGuire Woods for the gas company and Joshua Autry of Lavery Faherty Patterson for the landowners.

Next up is a bankruptcy reversal. At issue is a dispute (arcane, to my non-expert eyes) involving the adequacy of a trustee’s effort to recover of fraudulently transferred property.

The case is In re Allen. Opinion by Fisher, joined by Scirica and Cowen. Arguing counsel were Jason Baruch for the appellant and Daniel Allen for himself, pro se, which is a real rarity.

Today’s final case is an ERISA appeal in which the court affirmed, holding that an investment company that allegedly charged excessive fees was not a fiduciary to 401(k) participants.

The case is Santomenno v. John Hancock. Opinion by Fisher, joined by Van Antwerpen and Tashima CA9 by designation. Arguing counsel were Stephen Skillman of Szaferman Lakind for the investors, James Fleckner for the company, and Radha Vishnuvajjala for the US Department of Labor as amicus.


CA3 practitioner Berry guest-blogging this week at Volokh Conspiracy

Michael Berry, a media-law expert and partner at LSKS in Philadelphia, is guest-blogging on drone law this week at Volokh Conspiracy. First post here, intro post here. Berry is admitted in CA3 and was prevailing counsel in this CA3 published case.

Mike was my law review editor. To this day, I think of him every time I double-check whether I’ve italicized the period in id. Despite that, I’m happy to see him doing so well.

New opinion — non-resident citizen diversity status

CA3 today affirmed dismissal of a civil suit for lack of diversity jurisdiction. The suit arose from a mishap on an airplane: a man standing in the aisle waiting for the bathroom fell on another passenger and broke her arm. She invoked diversity jurisdiction to sue him in federal court. She lived in Ohio; he was a US citizen born in PA but now living in Germany. The district court dismissed, finding that he was domiciled in Germany and holding that he was stateless for diversity-jurisdiction purposes. CA3 affirmed, holding that a US citizen domiciled in another country cannot sue or be sued in diversity but finding this conclusion “troubling.”

The case is Freidrich v. Davis. Opinion by Sloviter, joined by Rendell and Greenaway. The case was submitted 10 days ago without oral argument.

Sentencing advice from Chief Judge McKee

I’m attending the US Sentencing Commission annual seminar now under way in Philadelphia.​ One of the panels yesterday was A View from the Appellate Bench, featuring CA3 Chief Judge McKee.

Notable among the points made by Chief Judge McKee:

  • He encouraged defense counsel to get the defendant to communicate his humanity. Putting a real human face on the defendant is helpful and necessary for sentencing.
  • He almost never looks at the pre-sentence report when deciding a sentencing appeal. CA11 Judge Pryor said in his experience former district court judges tended to look at PSRs while those without prior district court service tended not to. So don’t write your brief assuming all your judges will also read the PSR.
  • He observed that, even though CA3 is not one of the circuits that formally presumes a within-Guidelines sentence is reasonable, in the end it probably comes out that way. He could not recall a within-Guidelines sentence CA3 ever found substantively unreasonable.
  • He strongly believes in 18 USC 3353’s parsimony principle (“a sentence sufficient, but not greater than necessary“), although he observed it is very difficult to apply. CA11 Judge Pryor, perhaps less of a strong believer in sentencing parsimony, had a chuckle over his own comment that it should be called the Goldilocks principle instead.
  • He reiterated his view that PA’s sentencing framework is far superior to the federal sentencing guidelines.
  • He feels it would be helpful to the circuit judges if sentencing judges explained what it is they were trying to achieve. He gave an example of a judge who imposed an above-Guidelines sentence and explained that his reason was to incapacitate the defendant as long as possible, and that was helpful to him in assessing that sentence’s reasonableness.
  • He agreed with fellow panelist CA6 Judge Gibbons that judges should not refer to defendants by their first names. He commented that someone who does that shouldn’t be a judge.
  • Also of note, Judge Gibbons reminded defense counsel of the importance of candor, noting that when you tell the court half the story and the court finds out the full story, that won’t be helpful to your client. She also decried the epidemic of plain-error issues on appeal caused by failing to object below.

New opinion — another removal reversal

Today CA3 reversed a removal order because it held that PA’s reckless-endangerment statute is not categorically a crime involving moral turpitude. This follows the court’s similar reversal earlier this month in Hernandez-Cruz, which involved PA’s child-endangerment statute, although today’s opinion does not cite it. The opinion joins other circuits declining to apply Chevron deference to unpublished, single-member BIA decisions.

The case is Mahn v. AG. Opinion by Fuentes, joined by McKee and Greenaway. Arguing counsel were Wayne Sachs for the petitioner and Andrew Insenga for the AG.

Housekeeping note

I am attending the U.S. Sentencing Commission’s Annual National Seminar the rest of this week, so I’ll be delayed in posting new opinions the next couple days.

Among the presenters will be Chief Judge McKee and 2014-CA3-conference-presenter Judge Gleeson EDNY. I’m hoping to see other CA3 practitioners there too.

New opinion — issue preclusion through prior state-court litigation

Today’s only published opinion arises from a utility-rate dispute. A state utility commission ruled that certain utility costs could not be passed along to customers, and the companies’ challenge to that ruling failed in state court and Scotus denied cert. The companies then sued the commission in federal court, effectively seeking to set aside the state result. The district court dismissed, and today a divided CA3 panel affirmed, holding that the companies claims did not survive issue preclusion.

The case is Metropolitan Edison Co. v. Pa. Public Utility Commission. Opinion by Jordan, joined by Ambro. Dissent by Roth, who argued that state-court application of federal agency rulings should be subject to collateral attack in federal court. Arguing counsel were John Shepherd of Skadden Arps for the companies and Aspassia Staevska for the commission.

New opinions — 2 criminal-sentencing reversals

Two opinions today, both remanding for resentencing.

First up is a defendant win from a divided panel. In the underlying case, a former local police chief pled guilty to corruption was sentenced to over 11 years. The issue that led to reversal was the district court’s application of a two-level enhancement for abuse of a position of trust.

The case is US v. Solomon. Opinion by Hardiman, joined by Scirica and and in part by Roth. Roth dissented in part because she would have affirmed. Arguing counsel were Elisa Long of the FD for Solomon and Robert Eberhardt for the government.

Today’s other case is a government sentencing win. The defendant was convicted of selling drugs and sentenced to 220 months. Today, CA3 reversed because, in two technical ways, the district court incorrectly calculated the Guideline sentence.

The case is US v. Boney. Opinion by Smith, joined by Vanaskie and Sloviter. The case was decided without argument.

New opinions — IAC remand and a race-discrimination appeal loss

Two interesting opinions today.

First up is a rarity. Normally, claims of ineffective assistance of counsel (IAC) are not considered on direct appeal and must wait until habeas/2255. But today CA3 reached an IAC claim on appeal because the defendant might not be eligible for habeas because he is not in custody. The panel held that the defendant’s counsel was prejudiced by trial counsel’s failure to argue that a VI harassment statute violated the 1st Amendment, and it remanded for factfinding as to whether counsel’s performance was deficient. The remand is important because it reflects the court’s focus on counsel’s actual reasons. Significant case for habeas lawyers like me.

The case is Government v. Vanterpool. Opinion by Greenaway, joined by Rendell and Fuentes. Arguing counsel were Kyle Waldner for the defendant and Kimberley Salisbury for the government.

The day’s other case arises from suits brought by African American students against a wealthy suburban school district. A core allegation was that the district discriminated against African American students in deciding who is assigned to special education classes. The district court ruled for the district, and today a divided CA3 panel affirmed.

The case is Blunt v. Lower Merion School District. Opinion by Greenberg, joined by Ambro (except for one subsection); dissent by McKee (except for two subsections).

McKee’s 53-page dissent begins:

Today we hold that a group of African-American
parents and students have not produced  sufficient evidence to
have a jury decide if race is a factor in how African-American
students are assigned to special education classes in their
school district. My colleagues reach this result even though
the record contains numerous issues of disputed  fact that
would support plaintiffs’ claims if a jury resolved those
disputes in the plaintiffs’ favor.
The allegations here are not pretty. No one likes to
think that a school district, especially one with an outstanding
educational reputation, allows race to be a factor in assigning
African-American students to special education classes.
However, there is sufficient evidence on this record to
establish that a trial is warranted to determine whether this
school district did exactly that. I therefore write separately to
express my strong disagreement with my colleagues’
conclusion that these plaintiffs cannot survive summary


New opinions — “gay-conversion” therapy-ban upheld, plus two others

The year is 2014, yet still there are licensed counselors keen to “convert” kids with same-sex attraction. So last year, New Jersey passed a law banning licensed counselors from engaging in gay-conversion therapy on patients under 18. Plaintiffs sued, arguing that the ban violated their and their patients’ free-speech and free-exercise rights. The district court ruled against them, and today CA3 affirmed.

In a long opinion, CA3 held that the ban does limit speech (seeming to split with CA9) but that it advances NJ’s substantial interest in protecting its citizens from harmful care. The court categorized the limited speech here as professional speech and held that professional speech gets the same protection as commercial speech (again splitting with other circuits). Finally, the court affirmed intervention, joining the circuit-split majority allowing intervention without standing. A cert petition seems certain (UPDATE: sure enough, counsel already has told AP they will seek cert, H/T How Appealing), and I wouldn’t bet the house against a grant.

The case is King v. Governor of NJ. Opinion by Smith, joined by Vanaskie and Sloviter. (Impressive to issue a major 74-page opinion two months after argument.) Arguing counsel were Mathew Staver for the would-be converters, Susan Scott for the state, and David Flugman of Kirkland & Ellis for the intervenor. I posted after the oral argument here (maybe my best-ever accompanying visual).

Today’s second case involves the much more mundane subject of utility rates. NJ enacted legislation to promote construction of new electric power plants. Today, CA3 held that federal law preempts NJ’s law. Former SG Paul Clement was among the many prominent counsel on the appeal.

The case is PPL Energyplus v. Solomon. Opinion by Fuentes, joined by Shwartz and Rosenthal SDTX by designation. Arguing counsel were Richard Engel for the state, Clifton Elgarten and Richard Zuckerman for two intervenors, Clement for the appellees, and Clare Kindall and Robert Solomon for amici.

In today’s final case, CA3 upheld denial of class certification and summary judgment against a plaintiff. The case is Grandalski v. Quest Diagnostics. Opinion by Rendell, joined by Chagares and Jordan. Arguing counsel were Lisa Rodgriguez for the appellants and Robert Hochman for the appelles.

New opinion — divided panel finds Alleyne error harmless

Alleyne, a successor to Apprendi, held that facts increasing a mandatory-minimum sentence must be charged in the indictment and found by the jury beyond a reasonable doubt. That didn’t happen in Jermel Lewis’s case, but today CA3 affirmed his sentence. The panel majority rejected Lewis’s argument that the Alleyne error was structural and held that in this case it was harmless because the jury would have made the same findings the judge did.

The case is US v. Lewis. Opinion by Fisher, joined by Chagares. Dissent by Rendell. Arguing counsel were Paul Hetznecker for the Lewis and Robert Zauzmer for the government.

Rendell’s dissent includes this:

The look back to the trial record that the
majority performs perpetuates the very error deemed to be
reversible in Alleyne: judges substituting their view for the
jury verdict, and thereby imposing a sentence which violates
the Sixth Amendment. In so doing, today’s decision
impermissibly designates both the indictment and petit jury
verdict a “mere preliminary to a judicial inquisition into the
facts of the crime the State actually seeks to punish.” Blakely
v. Washington, 542 U.S. 296, 307 (2004) (emphasis in
The lesson of Alleyne is that juries, not judges, must
find the elements of  a crime that support the sentence
imposed. The majority’s harmlessness exercise completely
upends this principle, finding that judges can determine
statutory elements from the facts in a trial, and uphold a
sentence in direct conflict with the indictment and verdict.
For that reason, even under a harmless error standard, I would
vacate the sentence and remand for resentencing.

My Magic 8 Ball foretells a petition for en banc rehearing.

Update: Douglas Berman posts at Sentencing Law and Policy blog, here, that Judge Rendell’s dissent “suggests there is a lot more to the matter.”

Two oral arguments of interest tomorrow

Before my clerkship, I imagined that any circuit oral argument would a masterpiece of preparation and skill. I still remember the excitement and awe I felt before the first day of arguments.

I was quickly disabused.

But two CA3 oral arguments tomorrow figure to provide that caliber of advocacy.* In the morning, appellate specialist and How Appealing blogger Howard Bashman will argue against Arnold & Porter appellate luminary Lisa Blatt. The panel is Smith, Shwartz, and Roth. The case is Miller v. SmithKline Beecham, the briefs are here.  (And arguing the other case that morning will be Lisa Freeland, the head FPD of WDPa and a top advocate, although both sides are arguing by video).

In the afternoon will be the NFL concussion-suit argument I’ve blogged about here and here. Appearing will be Steven Molo of MoloLamken, Prof. Samuel Issacharoff of NYU Law, and Bruce Birenboim of Paul Weiss, national-profile advocates all. (Public Citizen’s motion for 5 minutes to argue as amicus was denied.) The panel is Ambro, Smith, and Jordan — Jordan replaced Krause after the argument was calendared.

* I’m sure there are other first-rate arguments this week too–I always appreciate a heads-up about CA3 cases to watch.

Appeals nerds rejoice!

Update: and here, from the other end of the oral-advocacy spectrum, is a post on Above the Law on a recent CA5 eyebrow-raiser. If you thought it might help your client to argue, “I think I know a little bit about federal court. Go ahead and tell me, though,” see how it turned out for this unfortunate fellow first.

New opinion — cross-examining defendant about post-arrest silence violated Fifth Amendment

A defendant charged with dealing cocaine testified in his own defense and offered innocent explanations for various incriminating facts. During cross-examination, the prosecutor asked why he had not come forward earlier with his exculpatory explanations. The district court overruled the defendant’s Fifth Amendment objection, but today CA3 reversed and ordered a new trial. The court deemed the prosecutor’s questions “textbook examples of a Fifth Amendment violation” and “obvious error.” The opinion also colorfully rejected various government arguments on appeal as “actually border[ing] on frivolous,” “badly strained,” and “frankly painful to watch.” Yikes.

The case is US v. Shannon. Opinion by Jordan–a former AUSA himself and one of CA3’s more conservative judges–joined by Rendell and Chagares. Arguing counsel were Paul Boas for the defendant and Donovan Cocas for the government.

New opinion — denial of qualified immunity affirmed

A big CA3 prisoner-rights win came down yesterday.

A Delaware jail inmate committed suicide after many prior attempts. His family sued the prison administrators, alleging that the suicide resulted from serious deficiencies in the medical care provided by the private vendor the prison hired. Among the sad and unsurprising facts that emerged in discovery:

In deposition testimony, Appellants [the prison officials] acknowledged that
they were aware of the deteriorating quality of FCM’s [the vendor’s]
provision of medical services. Williams admitted that FCM’s
performance had degraded significantly and that he was
aware FCM may not have been fulfilling its contractual
obligations. He was aware of significant
backlogs, that FCM may have been intentionally shortstaffing to save money, and that inmate complaints had increased. [Citations omitted]

The administrators asserted qualified immunity, but the district court disagreed. A divided CA3 panel yesterday affirmed and remanded for trial. The majority held that circuit precedent recognizing Eighth Amendment supervisory liability survived a recent Supreme Court case; the dissent disagreed on this point and others, with the two opinions vigorously engaging each other.

The case is Barkes v. First Correctional Medical. Opinion by Fisher, joined by Ambro. Hardiman dissented. Arguing counsel were Jeffrey Martin for the prisoner’s family and Catherine Damavandi of the DE DOJ for the prison officials.

Star commenter John commented here that he’d be shocked if the appellants don’t seek en banc review, and I agree, although without digging deeper I don’t have much insight on how they’ll fare.

Staff attorney hiring

CA3 today announced it plans to hire at least two staff attorneys to start next year. The announcement sheds some light on the key role staff attorneys play at the court:

Staff attorneys serve the court at large and are essential in furthering the disposition of matters before the Court. In the Third Circuit, the office has approximately twenty attorneys, plus a dedicated support staff. Staff attorneys work in a highly collegial work environment with experienced supervisory attorneys, career attorneys, attorneys with prior judicial clerkship or law firm experience, and recent law school graduates. The office has been a launching point for a wide range of careers nationwide, and many former staff attorneys have become leaders in public interest, private sector, and academic settings.
Primary staff attorney duties include:
•  Developing expertise in habeas corpus, immigration, civil rights and constitutional law,
appellate jurisdiction, and federal civil and criminal procedure;
•  Gaining familiarity with state and territorial laws of the Third Circuit;
•  Drafting memoranda, per curiam opinions, and orders for the judges;
•  Responding to questions from judges concerning individual cases, as needed; and
•  Managing assigned cases.

I had thought staff-attorney positions were all career positions, but no:

[CA3] anticpates hiring two or more staff attorneys to serve one-year terms, from September 2015 through September 2016. A limited number of two year term positions and term extensions may be available.

So some staff-attorney spots are structured like clerkships. Advertised pay for entry-level attorneys is $61,857. Would that it were more.


New opinions — trade-dress infringement and immigration

Two opinions today.

First, the court today affirmed dismissal of a Lanham Act trade-dress infringement and unjust enrichment suit but vacated the grant of attorney’s fees to the defendant because the district court requisite findings.

The case is Fair Wind Sailing v. Dempster. Opinion by Fuentes, joined by Rendell and Greenaway. Arguing counsel were Stefan Herpel for the appellant and Lisa Michelle Komives for the appellees.

Today’s other case involves a Mexican citizen who pled guilty in the U.S. to assault and child endangerment was ordered deported. CA3 today held that PA’s child-endangerment statute does not categorically implicate moral turpitude and remanded.

The case is Hernandez-Cruz v. AG. Opinion by Fuentes, joined by Greenaway and Nygaard. Arguing counsel were Jamie Jasso for the petitioner and Katherine Clark for the AG.

New opinion — criminal sentencing reversal

One doesn’t see many appellate wins for defendants repeatedly convicted of threatening to kill judges, but here’s one.

Last night CA3 issued a criminal-sentencing reversal involving application of the USSG 4B1.1(a) career-offender enhancement. The facts are a tangle, but the heart of it is that the panel held that the the Supreme Court decision in Descamps overruled prior circuit case law whereby, depending on the crime facts, some Pa. convictions for making terroristic threats could count as crimes of violence to trigger the enhancement.

The case is US v. Brown. Opinion by Ambro, joined by Barry and Restani Ct.Intl.Trade by designation. Arguing counsel were Thomas Patton for the defendant and Rebecca Ross Haywood for the government.

New opinions — 3 criminal appeals, including two government losses and a major 4th Amendment case

I posted separately about today’s 2 civil opinions here. Below are the 3 criminal opinions.

First up is a big Fourth Amendment win for criminal defendants. From the introduction:

In nearly all circumstances, we require police officers
to obtain a warrant  supported by probable cause  before
engaging in a search or seizure of a person, their house, their
papers, or their effects. One of the few exceptions to this rule
allows police to conduct a  warrantless search or seizure when
exigent circumstances require them to act with such alacrity
that  requiring  them to first obtain a warrant would be
unreasonable. The question at the heart of this case requires
us to determine  whether  an exigency has abated such that
officers are no longer excused from the warrant requirement.

And from the conclusion:

We do not mean to underplay the dangers that
police officers may face when pursuing a suspect into an
unfamiliar building. Nonetheless, once the  officers  had
secured the premises and apprehended  Mallory, the
exigencies of the moment abated and the warrant requirement
reattached. We therefore affirm the order of the District
Court granting Mallory’s motion to suppress.

My crystal ball tells me a petition for rehearing is a near-certainty. Stay tuned.

The case is US v. Mallory. Opinion by Fisher, joined by Fuentes and Stark D.Del. by designation. Arguing counsel were Brett Sweitzer for Mallory and Robert Zauzmer for the government.

The second case also is a defendant win, and it also was argued by Zauzmer (AUSA in charge of appeals in EDPA) — first time I’ve seen that. Anyway, the defendant here put computer images of child porn in a shared folder on a file-sharing network. The prosecution was unable to show that anyone ever accessed them, but the defendant was convicted of distributing child porn.  Today CA3 reversed, holding: “A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder.”

The case was US v. Husmann. Opinion by Fuentes, joined by Greenberg and Van Antwerpen EDIT: Van Antwerpen dissented. Arguing counsel were Theodore Forrence for the defendant and Zauzmer for the government.

The last case arises from the Hobbs-Act official-extortion convictions of Newark’s Deputy Mayor and his business associate. The defendants raised a host of issues on appeal, but CA3 affirmed.

The case is US v. Salahuddin. Opinion by Fisher, joined by Cowen and Tashima CA9 by designation. Arguing counsel were Thomas Ashley and Alan Zegas for the defendants and David Feder for the government.


New opinions — two civil reversals

A big day, 5 published opinions. I’ll summarize the 3 criminal opinions separately. Below are the two civil cases.

A Goldman Sachs vice president took a job with another company, and when he left he took some computer files with him. Criminal charges for taking the files are pending against the employee; this suit arises from his claim for indemnification and attorney’s fees from Goldman. The district court granted summary judgment for the employee; today, CA3 reversed, finding Goldman’s applicable by-laws ambiguous.

The case is Aleynikov v. Goldman Sachs. Opinion by Fisher, joined by Jones EDPa by designation; Fuentes dissented. Arguing counsel were Christopher Duffy of Boies Schiller for Goldman Sachs and Kevin Marino for the former employee.

Today’s other civil case is the latest appeal arising out of the elephantine asbestos class-action litigation. Decades ago, a talc manufacturer discovered its product contained asbestos, hid that fact, and so defended asbestos-injury suits for decades. When the truth came out, the old plaintiffs sued again: “the crux of their complaint is that BASF and Cahill defrauded them in their initial lawsuits and caused them to settle or dismiss claims that they would otherwise have pursued.” The district court dismissed, and today CA3 reversed the dismissal of the fraud and fraudulent concealment claims.

The case is Williams v. BASF Catalysts. Opinion by Fuentes, joined by McKee and Ambro.

New opinion — consumer win in debt-collection appeal

The federal Fair Debt Collection Practices Act limits what debt collectors may make visible on envelopes sent to collect debts. In this case, a debt collector sent a envelope, and visible through the window of the envelope was an account number — apparently an internal account number generated by the debt collector. The debtor sued, asserting that this visible account number violated the FDCPA. The district court held that the account number met a benign language exception; today, CA3 reversed, holding that, if such an exception exists, this account number would not meet it because “it is a piece of information capable of identifying Douglass as a debtor” and “Disclosed to the public, it could be used to expose her financial predicament.” I’m not persuaded. I get lots of mail with account numbers that don’t involve debt collection. I don’t see — and the opinion never says — how an internal account number could “expose” the recipient “as a debtor.”

The case is Douglass v. Convergent Outsourcing. Opinion by Scirica, joined by Fisher and Mariani MDPA by designation. Arguing counsel were Cary Flitter for the debtor and Richard Perr for the debt collector.

More on Erwin

I posted here yesterday on US v. Erwin, one of CA3’s most important opinions of the year to date. Today, two additional notes.

First, the impact of Erwin will be magnified exponentially by circuit sentencing practice. I noted this a few weeks back:

Digging deeper into the numbers, the biggest single reason CA3 defendants get below-Guidelines sentences is for substantially assisting the prosecution, accounting for 31.2% of all CA3 sentences. That’s the highest circuit rate in the country, by far. The national rate is only 12.8%. In fact, one CA3 district — E.D.Pa. — has the single highest rate of defendants credited for substantial assistance of any district in the country, 43.6%. And DNJ is third at 35.7%.

So almost a third of criminal defendants in CA3 are getting sentence reductions for cooperation, like Erwin did. The vast majority of these reductions are the product of plea deals, like Erwin’s was. Now, after Erwin, every one of those reductions is at risk if the defendant appeals; so every one of those defendants has an incredibly powerful incentive not to appeal, even if the defendant and her lawyer strongly believe they have a valid claim to raise. So the impact of Erwin is broad indeed.

Second, a comment over at Douglas Berman’s Sentencing Law & Policy blog (which graciously linked to my original post) caught my eye, although I’m no contract-law whiz. Commenter Clint Broden (him, I assume) wrote:

It seems to me that the Third Circuit does not understand contract law. If the government alleges a breach and asks for the remedy of voiding the contract then the defendant should also not be bound by the contract. This means that the appeal should be considered on the merits because there is not longer a plea agreement barring an appeal. One could also argue that since the plea of guilty was part of the plea agreement that the defendant should now have the right to go to trial upon remand. Under this ruling it is now the government that is having its cake and eating it too. It can withdraw the 5k1 but was still allowed to assert the appellate waiver on appeal. If the government seeks to void the plea agreement instead of specific performance that also should have consequences.



New opinions — three reversals

Three opinions, three reversals — one a significant criminal appeal, the other two disability-rights.

First, the criminal case, a defendant win on 404(b) and prosecutorial misconduct. Here’s the court’s cogent intro summary:

Ebon Brown  brings this appeal following his
conviction  in the United States District Court for the
Western District of Pennsylvania  of  unlawful possession
of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1).
He  raises three arguments on appeal. First,  he  argues  the
District Court erroneously denied his motion to suppress the firearm  recovered  by  law enforcement. Second,  he
argues that the District Court erroneously admitted, under
Federal Rule of Evidence 404(b),  evidence  that he had
previously obtained guns through  a straw purchaser. And
third, he argues  that  a new trial is warranted because the
District Court permitted the prosecutor  to make improper
statements during closing  arguments.
We are not
persuaded by Brown’s  argument that  evidence of  the
firearm should have been suppressed.  We agree,
however,  that the District Court erred in admitting
evidence of  Brown’s  past firearm purchases and  by
overruling Brown’s objection to the prosecutor’s closing
arguments. Because the  Rule 404(b)  error  was  not
harmless,  we will  vacate the judgment of the District
Court and remand for a new trial.

Aside: I’d love to see a study done on whether prosecutorial misconduct happens more often in cases where the caption was larded with sinister AKAs — here the caption reads “United States of America v. Ebon P.D. Brown, a/k/a/ E-Murder.” I’ve always thought that practice unworthy of our legal system.

The case is US v. Brown. Opinion by Smith, joined by Vanaskie and joined in part by Shwartz. Shwartz dissented in part, concluding that any 404(b) error was harmless. Arguing counsel were Kimberly Brunson for the defendant and Rebecca Haywood for the government.

Next up is a pro-plaintiff disability-rights reversal. The suit was brought under the IDEA, ADA, and the Rehabilitation Act on behalf of a disabled public-school student who alleged discrimination and denial of a free appropriate education. The district court dismissed the IDEA claim and granted summary judgment the rest. In this appeal, CA3 reversed the IDEA dismissal.

The case is D.E. v. Central Dauphin School Dist. Opinion by Fisher, joined by Van Antwerpen and Tashima CA9 by designation. Arguing counsel were Joel Mallord of Dechert for the family and Thomas Specht for the district.

The final case is another partial win for a plaintiff in a disability appeal. Budhun’s job was 60% typing, so it was a problem when she broke a bone in her hand, and she eventually lost her job. She sued under the FMLA and tried to amend to add an ADA claim. The district court granted summary judgment to the employer; today CA3 affirmed the ADA amendment-denial but vacated and remanded on the FMLA claim.

The case is Budhun v. Reading Hospital. Opinion by Chagares, joined by Shwartz and Aldisert. The case was submitted without oral argument.


Zephyr Teachout, former CA3 clerk and political rising star

Zephyr Teachout clerked for CA3 wonder-judge Edward Becker. I haven’t made a study of the Most Famous Former Third Circuit Clerks (yet), but I suspect at this moment in time she’s leading the pack. (Update: Or maybe not. In the comments, Peter Goldberger reminds me about “a guy named Sam Alito.”) She’s challenging Andrew Cuomo for the Democratic nomination for Governor of New York. It seemed like a silly idea at first — For Governor? Against Cuomo? Zephyr??? But she’s run an inspired campaign, Cuomo has not, and just this week the New York Times declined to endorse Cuomo. Jaw-dropping.

Zephyr is a friend of mine, and, inevitably, that’s CA3-related too. I interviewed with Becker during her clerkship, we had mutual friends, and we struck up a friendship. After her clerkship ended (my third year in law school) we started a legal non-profit together, along with my law school classmate David Neal, called the Fair Trial Initiative. Embarrassing photo here. After doing amazing work for FTI, she finally left for Vermont and the Howard Dean presidential campaign, and the rest is history. Suffice to say I’ve spent much of the past 3 months sporting a look of stupid incredulity, babbling to anyone who will listen “can you believe this …”

Full disclosure: I contributed some money to Zephyr’s campaign. This isn’t a political blog, and I’m not writing this to try to persuade anyone to support her. But it’s not every day that a CA3 clerk alum becomes a national political sensation, still less someone I know. So silence wouldn’t do.

I wonder what Judge Becker would have said if he were alive to see this. I’m pretty sure it would have been a good story well-told.

New opinions — election-law reversal and Lanham Act affirmance (Update: and an FLSA affirmance)

Three opinions today. I already discussed one of them separately here.

CA3 continued its recent flurry of Virgin Islands cases today with an election-law reversal. Candidates for Governor and Lt. Governor of the Virgin Islands were barred from the ballot and they sued. The district court dismissed their appeal, but CA3 applied VI law to vacate.

The case is Coffelt v. Fawkes. Opinion by Vanaskie, joined by Fisher and Shwartz. Arguing counsel were Andrew Simpson for the candidates and Kimberly Salisbury for the government.

Today’s final opinion arose from a dispute between two pharmaceutical companies that sell competing fertillity drugs. One of them made statements about the other’s drug and the other sued. The district court found that the plaintiff was not entitled to a Lanham Act preliminary injunction because it failed to show irreparable harm; CA3 today affirmed.

The case is Ferring Pharmaceuticals v. Watson Pharmaceuticals. Opinion by Chagares, joined by Shwartz and Aldisert. Arguing counsel were Arne Olson for the plaintiff and David Phillips for the defendant.

Update:  turns out there was a fourth opinion issued yesterday, too. Unless I’m losing my mind, it was added to the CA3 website after the others, which is the first time I’ve noticed that done. Hmm. Anyway, it’s another Chagares opinion — three in one day, it must be August. This one affirms the dismissal of class-action and individual FLSA claims against various healthcare providers.

The case is Lynn v. Jefferson Health System. Opinion by Chagares, joined by Shwartz and Aldisert. The case was submitted without argument.


New opinion — violating an appeal waiver voids the plea deal

The Third Circuit just issued what looks to me like a very significant new criminal sentencing ruling: when a defendant violates an appeal waiver, he can be re-sentenced without the deal. Defendants who plead guilty and waive their appeals (i.e. virtually all federal defendants) can still raise miscarriage-of-justice challenges to their sentences, but the cost of losing such a challenge just went way, way up.

In the case decided today, defendant Erwin pled guilty to oxycodone distribution. Under his plea deal, the government agreed to move for a 5-level downward departure for cooperation, while Erwin agreed not to appeal. But Erwin did appeal, arguing that his sentence was a miscarriage of justice because the court calculated the downward departure from his guidelines level instead of his (lower) statutory maximum. CA3 rejected his argument, and granted the government’s argument for resentencing without the downward departure motion. Erwin’s sentence could well go from 188 months to 240 months upon resentencing — ouch.

The case is US v. Erwin. Opinion by Chagares, joined by McKee and Nygaard. Note that McKee was the assigning judge on the panel — interesting to me that he did not keep this one. Arguing counsel were Kentucky attorney Jeffrey Brandt for the defendant and Norman Gross for the government.

There were two other opinions today, I’ll post about them separately.

Edit: some quick further thoughts on the impact of the decision. The opinion at n.10 noted that there were nearly 50 motions to enforce an appellate waiver filed in CA3 in 2013, and concluded “the costs are not trivial.” If the court’s hope is that this holding will dramatically cut federal-court costs, I’m skeptical. Some defendants are still going to violate their appeal waivers, and every time the government invokes Erwin, the upshot will be a full-blown sentencing in front of a new judge: talk about a non-trivial cost. And I’d expect most of them to get higher sentences and then to assert appellate IAC in a 2255 motion. All those additional resentencings and 2255 motions will mean more work for district courts, even if it’s less work for CA3.

Update: I posted further thoughts on Erwin here.

New opinion — Virgin Islands cert case

Before I started this blog, I had no idea that CA3 had certiorari jurisdiction over Virgin Islands Supreme Court cases. Today I learned that such cert jurisdiction soon will be a thing of the past, because in 2012 Congress eliminated CA3’s cert jurisdiction and replaced it with Scotus direct review. Today’s decision involves a cert petition filed before the 2012 change; the court ruled that it retains cert jurisdiction over such cases but it dismissed this case as moot.

The case is United Industrial v. Government of the Virgin Islands. Opinion by Cowen, joined by Fisher and Nygaard. Arguing counsel were Namosha Boykin for the petitioner and Joss Springette for the respondent.

Appellate-rule amendments proposed

The Judicial Conference rules committee this week issued proposed changes to various federal rules, including the Federal Rules of Appellate Procedure. A link to the proposed amendments is here, with written comments here sought by February 17, 2015. Bruce Greenberg provides a lucid synopsis here of the changes at his New Jersey Appellate Blog. Howard Bashman also had an uncharacteristically lengthy post about the word-count change Wednesday at How Appealing.

The proposal many lawyers probably care about most is the change to Rule 32 that would cut the word limit for opening briefs about 10%, from 14,000 words to 12,500 words. Personally, I’m not too vexed about that one; I agree with Scalia and Garner that “[t]he power of brevity is not to be underestimated,” so I work hard to write concise briefs and I usually come in well under the limit.

On the other hand, I surely would miss the extra 3 days to file now granted to rules-hounds by Rule 26(c).

I may have more to say on the amendments after I’ve had more time to consider them.

NFL concussion-suit oral argument set for September 10

CA3 just set oral argument for September 10 in the NFL concussion-suit appeal, one of the court’s most-watched cases. The argument is on the petition to appeal of 7 former NFL players, plus amicus Public Citizen, who object to the recent class settlement.

I’ve written about this case here and here, noting the appeal  “is fast becoming one of the biggest cases of the year. Among the legal luminaries who’ve now joined the fray are Beth Wilkinson, Samuel Issacharoff, Stephen Rosenthal, and Ted Wells,” joining Martin Totaro, Hangley Aronchick, and Alan Morrison. So it’s a safe bet that the quality of argument will be very, very high.

Adding to the interest is the fact that this will be the first oral-argument sitting for new CA3 judge Cheryl Krause. Joining her on the panel will be Ambro and Smith.


New opinion — Government 4th Amendment win

By my count, CA3 has reversed 13 times this year in published criminal appeals. (My compilation of 2014 reversals is here.) Four of those 13 reversals have been government wins. That’s pretty extraordinary, given that the overwhelming majority of criminal appeals are by defendants. Today, another government win.

The opinion begins:

In light of the “automobile exception” to the usual search warrant requirement, it is difficult to pick a worse place to conceal evidence of a crime than an automobile. The Supreme Court has interpreted—and reinterpreted—the automobile exception so expansively that the Court essentially has obviated the requirement that the government obtain a warrant to search a vehicle provided it has probable cause to  believe that the vehicle contains evidence of a crime.

The case is US v. Donahue. Opinion by Greenberg, joined by Ambro and Barry. Arguing counsel were Gino Bartolai Jr. for the defendant and Todd Hinkley for the government.

Incidentally, it’s been a bad week for MDPA Judge Caputo. Today’s reversal was his case below, as was a reversal earlier this week in which CA3 was reversing the case for the third time.

New opinion — bad faith does not support supervised-release revocation

A defendant was convicted, and his sentence included over $500,000 in restitution. He was ordered make periodic restitution payments of at least 10% of his income. He then inherited over $400,000, and so the government moved to modify the restitution payment order. He paid $100,000 in towards restitution, but blew most of the rest in a lavish spending spree while he got extensions on the government’s motion to modify. The district court ruled that the defendant’s bad faith violated the restitution order. Today, CA3 reversed, holding that revocation requires violation of a specific condition of supervised release, and neither bad faith nor violation of an informal agreement with the prosecution sufficed.

The case is US v. Bagdy. Opinion by Vanaskie, joined by Smith and Shwartz. Arguing counsel were Candace Cain for the defendant and Donovan Cocas for the government.

New opinions — First Amendment, two criminal, and an immigration

CA3 issued 4 published opinions today.

The day’s headliner is a ruling that allows Philadelphia police officers to contribute to their union’s PAC, reversing the district court and striking down on First Amendment grounds a half-century-old city rule that aimed to insulate police from political influence. Section I.C of the opinion offers a lively history of Philly police corruption and noted that the city argued it remains a serious concern.

The case is Lodge 5 v. City of Philadelphia. Opinion by Hardiman, joined by Scirica and Nygaard. Arguing counsel were Thomas Jennings for the union and Eleanor Ewing for the city.

The day’s other reversal is a criminal appeal. The basis for reversal was the district court’s failure to make clear what evidence it relied on for a drug-quantity finding at sentencing (p.29). The court affirmed on numerous other issues, including, unusually, one on which the Government confessed error.

The case is US v. Freeman. Opinion by Fisher, joined by Cowen and Nygaard. Arguing counsel were Pamela Colon for one defendant, Dale Smith for the other, and Nelson Jones for the government.

The court also affirmed a criminal appeal. After Claxton was convicted of drug dealing, the district court granted his judgment of acquittal for insufficient evidence, but CA3 reversed, and on remand Claxton was sentenced to 10 years. In this appeal, he raised issues including speedy trial, jury issues, Rule 403, Brady, and sentencing safety-valve eligibility, and CA3 affirmed.

The case was US v. Claxton. Opinion by Fisher, joined by Cowen and Nygaard (same panel as the previous case). Judge Cowen also wrote separately to express his view that the defendant waived one of this claims by failing to include or cite the relevant transcript in the record on appeal. Arguing counsel were Susan Moorehead for the defendant and Nelson Jones for the government.

Today’s final case is an immigration appeal. A Jamaican citizen who overstayed his visa had two minor drug convictions and was ordered deported. He conceded his removability but argued he was entitled to a waiver of criminal admissibility. After losing before the BIA, he appealed, and CA3 affirmed. On one point the court joined 4 circuits against CA2.

The case is Syblis v. AG. Opinion by Fisher (3 published opinions in one day = clerkships ending), joined by Jordan and Scirica. Arguing counsel were Ryan Muennich for the deportee and Anthony Nicastro for the government.


New opinions — a prisoner-rights reversal (again) and a white-collar affirmance

Two opinions today.

The first is a prisoner civil-rights case back in CA3 for the third time. Pa. prisons take money from inmate accounts to pay restitution and other conviction-related costs. Two inmates, Montanez and Hale, sued under 1983 to allege that such removal violates due process. After twice being reversed for ruling that the inmates failed to state a claim, the district court ruled against the inmates again. Today, CA3 reversed in part. The court affirmed the district court’s dismissal of Montanez’s suit as untimely, rejecting his accrual-date, continuing-violation, and equitable-tolling arguments. But Hale’s suit was timely, and the court found a genuine issue of material fact on whether denying him pre-deprivation notice and an opportunity to be heard violated due process.

The case is Montanez v. Secretary. Opinion by Roth, joined by Greenaway and Vanaskie. Arguing counsel were Ernest Preate Jr. (the former Pa. AG who became an advocate from inmate rights after his own federal criminal conviction) for Montanez, Su Ming Yeh of the PA Institutional Law Project for Hale, and Howard Hopkirk for the state.

Today’s other case is a white-collar criminal appeal. The defendant was convicted of securities fraud and perjury. He challenged the validity of an SEC rule, the sufficiency of the evidence, and denial of his new-trial motion based on newly discovered evidence. CA3 affirmed.

The case is US v. McGee. Opinion by Aldisert, joined by Chagares and Shwartz. Arguing counsel were John Grugan of Ballard Spahr for the defendant and Bernadette McKeon for the government.

New opinion — breach-of-contract damages

This appeal arises from a contractual dispute between a sports-car racing team and its sponsor. At trial, the district court found that the sponsor breached its contract and awarded the team $7 million in damages, but it refused to award additional damages on failure-to-mitigate, windfall, and policy grounds. On appeal, CA3 affirmed the damages awarded and reversed the damages denied, remanding for further proceedings.

The case is Vici Racing v. T-Mobile. Opinion by Baylson EDPA by designation, joined by Ambro and Greenaway. Arguing counsel were James Martin for the sponsor and Joseph Klock for the team.

New opinions — a death penalty affirmance and a case about missing packages

Two published opinions today.

The first involves Antyane Robinson’s habeas corpus challenge to his death sentence. The jurors that decided his fate were told that the alternative to death was life imprisonment, but they were not told that life meant life without parole. The PA courts ruled that juries need only be told about the unavailability of parole if the prosecutor “expressly” argues the defendant’s “future” dangerousness. Today, CA3 affirmed the district court’s ruling denying habeas relief.

The case is Robinson v. Beard. Opinion by Chagares, joined by Vanaskie and Aldisert. Arguing counsel were Matthew Lawry for the inmate and Jaime Keating for the state.

The day’s other case involves missing UPS packages. A company specializing in coins and metals alleged that 27 separate shipments, together worth over $150,000, were lost or stolen by UPS employees. The district court dismissed, ruling that the plaintiffs’ state-law claims were pre-empted, and today CA3 affirmed.

The case is Certain Underwriters v. United Parcel Service. Opinion by Chagares, joined by Rendell and Jordan. Arguing counsel were Robert Cosgrove for plaintiffs and Jerry DeSiderato for UPS.

New opinions issued last week — habeas, criminal, and FMLA reversals and an ERISA affirmance

CA3 entered 4 published opinions last week while I was away on vacation. They were:

  • Cox v. Horn (habeas)– this is CA3’s most significant habeas ruling of 2014 so far. It is CA3’s first significant opinion applying Martinez v. Ryan, the Scotus case that held that post-conviction counsel’s ineffectiveness can excuse procedural defaults. Barry, joined by Ambro and Restani, vacated the district court’s dismissal of petitioner’s FRCP Rule 60(b)(6) motion for relief from judgment. Arguing counsel were Stu Lev of the Philly CHU for the inmate and Molly Lerber for the DA.
  • US v. Napolitan (criminal) — the Government won a sentencing reversal on appeal, successfully challenging the district court’s sentencing procedure in refusing to apply two enhancements. It’s holding purported to join 9 other circuits disagreeing with CA8, so there’s a circuit split. The court also rejected the defendant’s request for a new trial based on newly discovered evidence of false testimony. Opinion by Smith, joined by Vanaskie and Shwartz. Arguing counsel were Renee Pietropaolo for the defendant and Donovan Cocas for the government.
  • Menkes v. Prudential Insurance (ERISA) — CA3 affirmed rulings that certain insurance coverage is governed by ERISA and that ERISA pre-empts the plaintiffs’ state-law claims. Opinion by Chagares, joined by McKee and Fuentes. (Aren’t ERISA appeals always assigned to the junior judge on the panel?) Arguing counsel were Andrew Bell for the employees, Hillary Richard for the insurer, and Scott Smith for the employers.
  • Lupyan v. Corinithian Colleges Inc (employment) — CA3 reversed the district court’s grant of summary judgment against an employee who brought interference and retaliation claims under the FMLA. Opinion by McKee, joined by Fuentes and Schiller by designation. Arguing counsel were Adam Gorzelsky for the employee and Jeffrey Balicki for the employer.

There also were two non-opinion case developments of note last week. First, the court remanded Conestoga Wood to the district court for reconsideration in light of the Supreme Court’s ruling reversing CA3.

Second, the NFL-concussion-settlement appeal I first blogged about here is fast becoming one of the biggest cases of the year. Among the legal luminaries who’ve now joined the fray are Beth Wilkinson, Samuel Issacharoff, Stephen Rosenthal, and Ted Wells. A panel of Ambro, Smith (lucky hit for the objectors, represented by former-Smith-clerk Totaro), and the just-confirmed Krause entered an order last week directing the objectors to file a reply regarding their petition to appeal by this Friday.

New opinions — attorney advertising and insurance arbitration

Two opinions today, plus a panel rehearing grant.

First up is an interesting attorney-advertising case. Certain judges had praised a lawyer in unpublished opinions, and the lawyer prominently quoted that praise on his website. One of the judges asked him to take down the quote, and ultimately the New Jersey Supreme Court adopted a professional rule banning advertising with opinion-quotes unless the opinion appears in full. The district court rejected the lawyer’s argument that this rule violated his First Amendment speech rights, but CA3 reversed. The court ruled that the ban was unduly burdensome and not reasonably related to consumer deception.

The case is Dwyer v. Cappell. Opinion by Ambro, joined by Hardiman and Greenaway. Arguing counsel were Andrew Dwyer for himself and Susan Scott for the state. Maybe Dwyer will be able to find more quotes from his remarkable win today to add to his site.

Today’s other opinion was summarized by CA3 thus:

Appellee Lincoln T. Griswold purchased a life
insurance policy that was later sold to Appellant Coventry
First LLC (Coventry) for an allegedly inflated price that
included undisclosed kickbacks to the broker. Griswold sued,
and Coventry moved to dismiss the case for lack of standing
or, in the alternative, to compel arbitration. The District Court
denied the motion and Coventry appealed. Two questions are
presented: (1) whether we have appellate jurisdiction to
review the District Court’s denial of a motion to dismiss for
lack of standing; and (2) whether the District Court erred
when it denied a motion to compel arbitration.

The court answered both questions in the negative and affirmed.

The case is Griswold v. Coventry First LLC. Opinion by Hardiman, joined by Ambro and Greenaway (same panel as today’s other case, but argued a month earlier). Arguing counsel were Ronald Mann for the insured and Kannon Shanmugam for the insurer, both appellate heavy hitters. Link to the argument audio here.

Besides today’s two published opinions, the court also entered an order granting panel rehearing in NLRB v. New Vista Nursing and Rehabilitation, a case decided by CA3 over a year ago (opinion here). The cases involves the Recess Appointments Clause, so I assume rehearing was granted to assess the impact of the June USSC ruling in Noel Canning. Stay tuned.

Back to blogging

I was away on vacation last week. Because I’m that nerdy, I’d planned to keep updating the blog while I was gone. But, because I’m that absent-minded, I couldn’t post because I didn’t bring the password. Sorry for the radio silence. I will post on last week’s opinions and update the reversals compilation soon. But first, three new opinions today.

New(ish) opinion — major criminal reversal on evidentiary grounds

Akeem Caldwell was tried for being a felon in possession of a gun. He testified at trial, denying possession; during cross-examination, the prosecution introduced his prior conviction for felon-gun-possession. On appeal, CA3 reversed, holding that introduction of the prior conviction violated Rule 404(b) of the Federal Rules of Evidence.

The court began by noting, “We have repeatedly emphasized that Rule 404(b) must be applied with careful precision, and that evidence of a defendant’s prior bad acts is not to be admitted unless both the proponent and the District Court plainly identify a proper, non-propensity purpose for its admission.” After surveying the history of prior-bad-act-admissibility, the court said, “let us be clear: Rule 404(b) is a rule of general exclusion, and carries with it no presumption of admissibility.” The court described in detail the four-step 404(b) analysis district courts must follow, which is summarized thus:

Rule 404(b) provides that prior act evidence is inadmissible unless the evidence is (1) offered for a proper non-propensity purpose that is at issue in the case; (2) relevant to that identified  purpose; (3) sufficiently probative under Rule 403  such that its probative value is not outweighed by any inherent danger of unfair prejudice; and (4) accompanied by a limiting instruction, if requested.

The court applied the four-step analysis to find a 404(b) violation. Finally, it found that the error was not harmless even “[t]hough the prosecution’s case may have been strong” and rejected the government’s argument that the prior convictions were admissible as impeachment under Rule 609. The opinion closed where it began, reiterat[ing]  the importance of a methodical approach by the proponent of prior act  evidence and  a carefully reasoned ruling by  the trial judge who must decide the question of admissibility.”

The case is United States v. Caldwell. Opinion by Smith, joined by Vanaskie and Shwartz. Arguing counsel were Renee Pietropaolo for the defendant and Michael Ivory for the Government.

This important opinion was issued back on July 24, but somehow I missed it until I saw it on Matt Kaiser‘s excellent Federal Criminal Appeals Blog.

New opinion — courts not arbitrators decide whether class claims are subject to arbitration

Employees sued their employer in federal court, individually and as a class, for failing to pay overtime. The employees had signed an employment agreement that included a provision that any dispute relating to their employment would be submitted to arbitration. The employer moved to compel arbitration, and the district court granted the motion and terminated the case in 2011; in its order, the district court said it was up to the arbitrator to decide whether arbitration of the classwide claims was available. The arbitrator went on to rule that classwide arbitration was available and issued a partial award for the employees.

Then — even though the employer was the party who moved to compel arbitration, and even though the employer did not appeal the part of the 2011 order it didn’t like but instead waited to see what the arbitrator said — the employer then went back to district court and asked it to vacate the award. The district court denied the motion, so the employer appealed. Today, CA3 reversed.

First, the panel held that the employer’s failure to appeal the 2011 order, instead waiting until after it lost before the arbitrator, was no problem because the employees were not prejudiced. This part of the opinion cited no authority. I don’t know that this holding is wrong, but I sure don’t know that it’s right.

On the merits, the panel deemed the crux issue to be who decides whether class-wide claims were subject to arbitration, the arbitrator or the district court. It held that the district court decides here because the arbitration clause did not unmistakeably provide otherwise. The opinion said the agreement was silent there, but it did not address the provision that an arbitrator would decide “any dispute . . . relating to . . . any provision of this Agreement.” Also odd.

The case is Opalinski v. Robert Half Int’l. Opinion by Ambro, joined by Jordan and Roth. Arguing counsel were Robert Alfred for the employer (one of 8 lawyers from 5 offices in 4 states on the brief) and Shannon Liss-Riordan for the employees.

Update: appellees have filed for panel and en banc rehearing.

Judge Gleeson and sentencing fairness


US District Judge John Gleeson (EDNY) (Wikimedia Commons public domain)

2014 CA3 judicial conference presenter Judge John Gleeson (EDNY) has been in the news this week for reducing the sentence of a defendant he himself had originally sentenced. Articles in the New York Times here and here. The original sentence was the product of the trial penalty and stacking.

I’m not normally one for long quotations, but I think they’re warranted here. This is how Gleeson’s memorandum in the case begins (I’ve omitted the footnotes):

There are injustices in our criminal justice system, including in this district,
and they often result from the misuse of prosecutorial power.  I have pointed some out in
recent years in the hope that doing so might help eradicate or reduce the number of such
abuses. But prosecutors also use their powers to remedy injustices.  In the spirit of fairness –
and with the hope of inspiring other United States Attorneys to show similar wisdom and
courage – I write to applaud the admirable use of prosecutorial power in this case.

The power United States Attorney Loretta Lynch has put to use in Francois
Holloway’s case inheres in our adversarial system. It is the power to seek justice even after
all appeals and collateral attacks have been exhausted and there is neither a claim of
innocence nor any defect in the conviction or sentence. Even in those circumstances, a
prosecutor can do justice by the simple act of going back into court and agreeing that justice
should be done. After careful consideration of Holloway’s crimes, the views of his victims,
and his conduct during the two decades he has been imprisoned as a result of this case, the
government has decided that it need not stand by silently while Holloway serves three more
decades of an unjust sentence. Specifically, it has agreed to an order vacating two of
Holloway’s counts of conviction and to a resentencing of him on the remaining counts. Even
people who are indisputably guilty of violent crimes deserve justice, and now Holloway will
get it.

And here is how it ends:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for
being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s
nothing we can do” about an excessive sentence after all avenues of judicial relief have been
exhausted. Doing justice can be much harder. It takes time and involves work, including
careful consideration of the circumstances of particular crimes, defendants, and victims – and
often the relevant events occurred in the distant past.  It requires a willingness to make hard
decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed
robberies. He deserved serious punishment. The judgment of conviction in his case was
affirmed on direct review by the Supreme Court, and his collateral attack on that judgment
failed long ago. His sentence was far more severe than necessary to reflect the seriousness of
his crimes and to adequately protect the community from him, but no one would criticize the
United States Attorney if she allowed it to stand by doing nothing.

By contrast, the decision she has made required considerable work. Assistant
United States Attorney Nitze had to retrieve and examine a very old case file. He had to track
down and interview the victims of Holloway’s crimes, which were committed 20 years ago.
His office no doubt considered the racial disparity in the use of § 924(c), and especially in the
“stacking” of § 924(c) counts. He requested and obtained an adjournment so his office could
have the time necessary to make an extremely important decision. United States Attorneys’
offices work with limited resources. The effort that went into deciding whether to agree to
vacate a couple of Holloway’s convictions could have been devoted to other cases.

Finally, the easy route – that is, the “there’s nothing we can do about your
sentence” response – would have eliminated any concern that Holloway might squander the
opportunity to make something of the rest of his life. The United States Attorney’s decision
here will be criticized if Holloway commits another crime upon his early release from prison.
She could have extinguished that risk by doing nothing. But she has the wisdom and courage
to confront it the right way – by asking me to ensure that Holloway gets the re-entry
assistance a prisoner who has spent decades in prison will need.

This is a significant case, and not just for Francois Holloway. It demonstrates
the difference between a Department of Prosecutions and a Department of Justice.  It shows
how the Department of Justice, as the government’s representative in every federal criminal
case, has the power to walk into courtrooms and ask judges to remedy injustices.

The use of this power poses no threat to the rule of finality, which serves
important purposes in our system of justice. There are no floodgates to worry about; the
authority exercised in this case will be used only as often as the Department of Justice itself
chooses to exercise it, which will no doubt be sparingly.  But the misuse of prosecutorial
power over the past 25 years has resulted in a significant number of federal inmates who are
serving grotesquely severe sentences, including many serving multiple decades and even life
without parole for narcotics offenses that involved no physical injury to others. Even
seasoned federal prosecutors will agree that many of those sentences were (and remain)
unjustly severe.

The United States Attorney has shown here that justice is possible in those
cases. A prosecutor who says nothing can be done about an unjust sentence because all
appeals and collateral challenges have been exhausted is actually choosing to do nothing
about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare
clemency petitions for federal prisoners, and indeed the Department of Justice has
encouraged the bar to locate and try to help deserving inmates.

Those lawyers will find many inmates even more deserving of belated justice than Holloway. Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good
reason why all of them must end up in the clemency bottleneck. Some inmates will ask
United States Attorneys for the kind of justice made possible in this case, that is, justice
administered not by the President but by a judge, on the consent of the Department of Justice,
in the same courtroom in which the inmate was sentenced. Whatever the outcome of those
requests, I respectfully suggest that they should get the same careful consideration that Ms.
Lynch and her assistants gave to Francois Holloway.

Remarkable stuff. Coming as it does from a 9-year federal prosecutor who got the Attorney General’s Distinguished Service Award, it packs a punch.

New opinion — Medicare reimbursement appeal

When a woman was injured, Medicare paid for her medical care. She later sued for her injuries and reached a settlement. She argued that she got to keep the Medicare payment despite the settlement. A NJ state court held that the settlement did not cover medical expenses, but Medicare then demanded repayment,  and she sued. The district court dismissed her suit. In an opinion analyzing the interplay of the federal Medicare as a Secondary Payer Act and the New Jersey Collateral Source Statute , CA3 affirmed.

The case is Taransky v. Secretary. Opinion by Hardiman, joined by Sloviter and Barry. Arguing counsel were Franklin Solomon for the woman and Daniel Tenny for the government.

New opinion — reversing denial of post-judgment discovery

In 1975, a gun malfunctioned and injured its owner. The owner sued the gun-maker and won an $847,000 judgment. But the gun-maker is based in Turkey and has ignored all efforts to collect the judgment, and today the debt has risen to about $25 million. When the owner learned in 2011 that the gun-maker had a large transaction with an American company, the owner sought post-judgment discovery in aid of judgment-execution from the American company, and the district court denied it in part because it thought discovery might be futile. The owner appealed, and CA3 reversed, holding that the district court “improperly considered the possibility that discovery might be futile without determining whether that was in fact the case.”

The case is Ohntrup v. Makina Ve Kimya Endustrisi Kurumu. Opinion by Hardiman, joined by Ambro and Fisher. Arguing counsel were William Ford for the American company, Casey Green for the owner, and Thomas Sullivan for the poor law firm that represented the gun-maker at trial and finally was allowed to withdraw from the case.

More CA3 defendants get sentences below-Guidelines than within-Guidelines

Less than 36% of criminal defendants sentenced in the Third Circuit are receiving sentences within the range set by the Sentencing Guidelines, according to the most recent data from the US Sentencing Commission. This is much lower than the within-Guideline sentencing rate nationally, which is 48.6%. Only CA2 and CA9 courts sentence within the Guidelines less often than CA3.

Defendants sentenced outside the Guideline range almost always are sentenced below the Guidelines range. Within CA3, less than 2% of defendants received an above-Guidelines sentence.

Digging deeper into the numbers, the biggest single reason CA3 defendants get below-Guidelines sentences is for substantially assisting the prosecution, accounting for 31.2% of all CA3 sentences. That’s the highest circuit rate in the country, by far. The national rate is only 12.8%. In fact, one CA3 district — E.D.Pa. — has the single highest rate of defendants credited for substantial assistance of any district in the country, 43.6%. And DNJ is third at 35.7%. (Why? Are prosecutors more generous about rewarding cooperation? Are they more draconian about punishing non-cooperation?)

On the other hand, very few defendants within CA3 — less than 1% — are benefiting from early disposition programs. That’s far below the national rate of 9.2%, a figure driven mostly by a 28.6% rate in CA9 (including 56.8% in SDCa!) and 17.3% rate in CA10. And EDNY, where CA3-conference-presenter Gleeson sits, has a 10.9% early-disposition-sentence-reduction rate. In the wake of this year’s CA3 circuit conference, I’m hoping use of early disposition in CA3 will rise dramatically.

These stats all come from the US Sentencing Commission’s 2nd quarter Preliminary Quarterly Data Report released earlier this week. H/T Douglas Berman at Sentencing Law and Policy.

Retired players and Public Citizen ask to appeal NFL-concussion-suit class certification

Earlier this week, 7 retired NFL players asked CA3 to let them appeal from the district court’s order certifying a settlement class in the ongoing concussion lawsuit brought by players against the NFL. Today, Public Citizen filed an amicus in support of the 7 seeking to appeal. The New York Times wrote that the request to appeal appeal is “an unusual strategy because the proposed settlement is not final and may still be altered.”

Unusual or not, the appeal effort has real legal muscle behind it. Counsel for the players is Martin Totaro, an appellate specialist at MoloLamken in DC and a former Smith clerk, and the Philly powerhouse Hangley Aronchick. And Public Citizen and Alan Morrison are widely  respected repeat players in class-action-fairness litigation.

Stay tuned.

Update: the CA3 website’s ‘cases of interest’ page gives a link to the players’ petition to appeal, but the link doesn’t work currently.

Government moves to amend the opinion I called “buck-naked wrong”

Last month, I blogged here about the Third Circuit panel opinion in US v. Reyes. I tactfully observed that the opinion mistakenly applied the higher retroactivity standards for successor habeas petitions to a first habeas petition:

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.

The panel’s error favored the Government, but, to its great credit, the Government has filed a motion to amend the panel opinion to correct the error. The motion is signed by AUSAs Robert Zauzmer and Bernadette McKeon. After quoting the same paragraph I quoting in my post, the Government’s motion continued:

This paragraph is unnecessary to the Court’s decision, and is inconsistent
with this Court’s precedent. In United States v. Swinton, 333 F.3d 481, 485-87
(3d Cir. 2003), the Court held that, in addressing a first petition for relief under
28 U.S.C. § 2255 (as in this case), a district court or Court of Appeals has
authority to determine whether a new Supreme Court decision is retroactively
applicable on collateral review. In contrast, the Swinton Court explained, only
the Supreme Court may apply a new rule retroactively when addressing a second
or successive petition under Section 2255.

The decisions cited in the paragraph at issue in the opinion – United States
v. Winkelman, 746 F.3d 134 (3d Cir. 2014); Simpson v. United States, 721 F.3d 875 (7th Cir. 2013); and United States v. Redd, 735 F.3d 88, 91 (2d Cir.2013) – all
involved second or successive 2255 petitions, and correctly observed that in that
context only the Supreme Court may declare a new rule retroactively applicable.
In contrast, the present case, like Swinton, concerns an initial petition.

The Government’s motion was filed June 30 and it remains pending.

Common-sense reasonableness is smart appellate lawyering. Motions like this are part of why Zauzmer is one of the Third Circuit’s top advocates. At oral argument in another recent case, Chief Judge McKee went out of his way to praise Zauzmer for a concession, observing, “lesser advocates would not have done this.” Judges notice.

New opinion — carjacking a more expensive car leads to a longer sentence


Don’t carjack this one. (Mercedes-Benz SLS AMG (C 197) – Frontansicht geöffnet, 10. August 2011, Düsseldorf. Wikimedia Commons CC-BY-SA 3.0-de)

Two different victims are car-jacked. One is driving a Ford worth $5,000, the other is driving a Mercedes worth $60,000. Neither car is damaged during the crime. If the cases and defendants are otherwise identical, should the defendant whose victim drove a more expensive car get a longer sentence? In the Third Circuit, the answer now is “yes.”

The case is United States v. Smith. Opinion by Jordan, joined by Rendell and Chagares. The opinion was issued without oral argument just 12 days after its panel date.

What Smith actually held is that the USSG 2B3.1 sentence enhancement for property “taken, damaged, or destroyed” applies to undamaged car-jacked cars. And that enhancement goes up one level for property worth over $10,000 and two levels for property worth over $50,000.

The upshot? Our Ford carjacker might get a prison sentence of 41 to 51 months. Our otherwise identical Mercedes carjacker gets 57 to 71 months. Because the victim was driving a nicer car, the prison sentence is 40% longer.

I don’t see how this result is any different from one where a kidnapper gets a longer sentence because his victim was wearing a Rolex instead of a Timex. A head-scratcher.

Update: no rehearing petition filed, mandate issued.


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.

Update: Elisa Long discusses Flores-Mejia in this post on the Federal Defender Third Circuit Blog.


New opinion — federal agency jurisdiction


“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


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. Lyons 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 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!


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, 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


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


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


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.


* 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


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


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.

UPDATE II: The Supreme Court reversed per curiam, opinion here.

Judicial conference wrap-up


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 and vacaturs. It is current through December 12. Cases I recognize as especially important are in bold.



Civil Rights


Habeas & 2255



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


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


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


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


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.


Notable pending asbestos appeal, and the argument red-light

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


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


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.


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



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.


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.


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


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?


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