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

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

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

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

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

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

Congratulations, Wells Fargo and counsel on your appellate victory!

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

A rare dissent from denial of rehearing en banc

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

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

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

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

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

He concludes thus:

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

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

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

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

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

Here is the remarkable introduction to Judge Ambro’s remarkable opinion today scolding the FCC:

Twelve years have passed since we first took up challenges to the broadcast ownership rules and diversity initiatives of the Federal Communications Commission (“FCC” or “Commission”). In some respects the Commission has made progress in the intervening years. In key areas, however, it has fallen short. These shortcomings are at the center of this dispute—the third (and likely not the last) round in a protracted battle over the future of the nation’s broadcast industry. Specifically, the parties present challenges to the Commission’s “eligible entity” definition, its Quadrennial Review process, and its rule on television joint sales agreements.
Although courts owe deference to agencies, we also recognize that, “[a]t some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.” Public Citizen Health Research Group v. Chao, 314 F.3d 143, 158 (3d Cir. 2002) (emphasis and internal quotation marks omitted). For the Commission’s stalled efforts to promote diversity in the broadcast industry, that time has come. We conclude that the FCC has unreasonably delayed action on its definition of an “eligible entity”—a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership—and we remand with an order for it to act promptly.

Equally troubling is that nearly a decade has passed since the Commission last completed a review of its broadcast ownership rules. These rules lay the groundwork for how the broadcast industry operates and have major implications for television, radio, and newspaper organizations. Although federal law commands the Commission to conduct a review of its rules every four years, the 2006 cycle is the last one it has finished; the 2010 and 2014 reviews remain open. Several broadcast owners have petitioned us to wipe all the rules off the books in response to this delay—creating, in effect, complete deregulation in the industry. This is the administrative law equivalent of burning down the house to roast the pig, and we decline to order it. However, we note that this remedy, while extreme, might be justified in the future if the Commission does not act quickly to carry out its legislative mandate.
Whereas the first two issues before us involve agency delay, the third is a challenge to agency action. The Commission regulates the number of television stations a company can own. In 2014, it determined that parties were evading its ownership limits through the influence exerted by advertising contracts known as joint sales agreements. As a result, it created a rule designed to address this perceived problem. However, we conclude that the Commission improperly enacted the rule; hence we vacate it and remand the matter to the Commission.

Ambro was joined by Fuentes; Scirica dissented in part because he would have gone further and ordered the FCC to issue its 2010 quadrennial review within 6 months. Arguing counsel were David Gossett for the FCC, and Helgi Walker of Gibson Dunn, Patrick Philbin of Kirkland & Ellis, and Georgetown Law professor Angela Campbell for various petitioners/intervenors.


United States v. Nerius — criminal sentencing — affirmance — Shwartz

Jean Nerius was convicted of two crimes. He was classified as a career offender at sentencing, resulting in a sentencing guidelines range of 37 to 46 months. Although his pre-sentencing prison-discipline record was bad, the judge sentenced him at the bottom of that range, 37 months. But the career-offender designation was error, so Nerius was resentenced. This time his guideline range was 30 to 37 months. And since his original sentencing his disciplinary record had been spotless. But this time the sentencing judge sentenced him to 36 months, near to top end of the guideline range and just one month less he’d gotten than when he was deemed a career offender.

On appeal, Nerius argued that his new sentence was presumptively vindictive — that the sentencing judge should be presumed to have punished him for winning his first appeal by going from a bottom-of-the-old-range sentence to an-almost-top-of-the-new-range sentence, when the only thing that had apparently changed since the first sentencing (besides the fact that he was no longer deemed a career offender) was that he’d been a model prisoner for the past two years.

Today, the Third Circuit rejected Nerius’s argument and affirmed his sentence. The panel said that no presumption of vindictiveness applies because the new sentence was shorter than the old one, period. The fact that the sentence went from the bottom of the guideline range to near the top, with no intervening bad acts, did not trigger the presumption.

If you believe that sentencing judges put much stock in guidelines ranges and career-offender designations, you’re more likely to think this ruling is unjust. If you don’t, well, you probably don’t. In that vein, it’s interesting that the panel consisted of two former district judges and one former magistrate judge.

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

A divided panel applies civil rules strictly to dismiss an appeal as untimely

State National Insurance v. County of Camden — civil — dismissal — Fisher

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal because the appeal was untimely. It’s an interesting case both factually and legally.

The appeal was brought from dismissal of a legal malpractice suit. The legal malpractice suit, in turn, arose from a civil suit. A person injured in a car crash sued Camden County alleging negligent maintenance. The county had an insurance policy with a $10 million limit. The lawyer who represented the county allegedly told the insurance company (belatedly) that the case was meritless and she valued it at $50,000. But after a trial the jury awarded the victim $31 million, later remitted to $19 million. Four days later, the insurer sued the county and the attorney. (Actually, the former attorney — her Linkedin page states that she took “a very early retirement,” moved to another state, and became a realtor.)

Now here’s where things get tangled procedurally. The insurer’s original complaint against the lawyer — one of the 2 defendants — was dismissed in 2010. The insurer filed a motion to reconsider that ruling under Rule 59(e), and also a motion to certify an immediate appeal under Rule 54(b), both of which were denied. For the next four years, the insurer litigated its claims against the other defendant, the county. The district court eventually denied the insurer’s motion for summary judgment. The insurer believed that this denial undermined the basis for the earlier dismissal of the claims against the lawyer, so it sought to reinstate those claims under Rule 60(b)(6), and the court ordered briefing on the motion. While motion to reinstate the claims against the lawyer was pending, the insurer and the county settled the claims against the county, The joint stipulation of dismissal between the insurer and the county recited that the insurer wanted to renew its claims against the lawyer. The district court then denied the motion to reinstate the claims against the lawyer, and 15 days later the insurer filed a notice of appeal from the denial of the motion to reinstate the claims against the lawyer. FRAP 4 provides 30 days to file a notice of appeal after entry of judgment or the order appealed from.

The appeal turned on whether the insurer’s appeal involving its claims against the lawyer was timely, and the panel split. The majority (Fisher joined by Chagares) held that the appeal was untimely. Rule 60(b)(6) gives district courts authority to undo final judgments, it explained, and at the time when the insurer filed its 60(b)(6) motion the judgment was not final because the claims against the county remained pending. Thus Rule 60(b)(6) “was not a proper avenue by which to challenge” dismissal of the claims against the lawyer, and as a result the majority treated it as a nullity. And, while district courts also have inherent power to reconsider prior interlocutory orders, that power ends when the court loses jurisdiction, which the majority held happened when it entered a voluntary stipulation of dismissal of the claims against the county, even though no entry of judgment resulted from that. And because the 60(b)(6) motion was “not a proper Rule 60(b) motion,” the majority ruled that it could not toll the appeal-filing deadline under FRAP 4(a)(4)(A). The majority acknowledged that its ruling was “strict.”

Judge Jordan dissented, beginning:

The Majority acknowledges that its interpretation of the operative rules of procedure is “strict.” But the interpretation goes beyond strict: with all respect, it is wrong.

He reasoned:

As the Majority would have it, State National could only maintain its appeal rights by choosing between two bad alternatives: it could abandon its settlement of its separate claim against the County, or it could appeal the dismissal of the claims against Whiteside even as the District Court was actively reconsidering that dismissal. The federal rules of civil procedure and of appellate procedure are meant to permit the “just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, and to allow district courts to fully resolve all issues in the first instance so that appellate review is not “piecemeal,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). It would therefore be strange if the rules really did put State National in that bind.

In Jordan’s view, the insurer’s Rule 60 motion to reinstate the claims against the lawyer kept those claims open until the court ruled on the motion. He disagreed that the district court lost its power to reinstate the claims against the lawyer when the claims against the county were voluntarily dismissed, and also disagreed that the Rule 60(b) motion was a nullity because it was filed before the voluntary dismissal. In a footnote, he noted that the majority “are abolishing Rule 60(b) relief for parties in [the insurer’s] position” because any motion would be too early, too late, or, as here, both.

I’m betting the farm that the insurer will seek rehearing en banc, and rare though en banc rehearing is, I think such a motion has a realistic chance of being granted here. On first reading, I find the dissent’s analysis more persuasive. It’s one of the strongest Third Circuit dissents I’ve seen in recent years.

As noted, Fisher was joined by Chagares and Jordan dissented. Arguing counsel were Walter Andrews of Hunton & Williams for the insurer and Michael Canning and Matthew Fiorovanti of Giordano Halleran for the appellee.


New opinion — Court affirms plaintiffs’ win in overtime suit

Mazzarella v. Fast Rig Support — employment — affirmance — Shwartz

Two trucking companies hired drivers to haul water used for fracking. Although the drivers often worked more than 40 hours per week, the companies only paid them overtime above 45 hours per week. The drivers sued, alleging that the failure to pay them overtime for all hours over 40 per week violated the Fair Labor Standards Act. The companies argued that they were exempt from FSLA’s overtime rules per the Motor Carrier Act. The district court ruled that the companies failed to prove they met the MCA exemption. Today, the Third Circuit affirmed, noting that, while the defendants’ brief was filled with factual assertions, the record evidence they actually introduced was not enough to meet their burden.

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


New opinion — a NEPA affirmance

Maiden Creek Assocs v. U.S. Dept. of Transp. — environmental — affirmance — Barry

The Third Circuit today affirmed an order dismissing a complaint brought under the National Environmental Policy Act and denying the plaintiffs’ motion to amend. The NEPA claim challenged some highway work that a developer and a township board believed would impede a planned shopping center.

Joining Barry were Fisher and Rendell. Arguing counsel were Marc Kaplin for the developer, Christopher Garrell for the township board, James Maysonett for the government, and Kenda Jo Gardner for the state department of transportation.

Now it’s Hardiman’s turn in the Trump-media glare [updated]

For several months, Judge Barry has been the Third Circuit judge in the national media spotlight in connection with the Trump presidential campaign. But that all changed yesterday when Trump included Hardiman on his list of 11 potential Supreme Court nominees.

My post yesterday collected conservative praise of Trump’s list and the couple early stories featuring Hardiman. UPDATE: Here’s another, from David Lat on Abovethelaw.

Since then more Hardiman coverage has emerged. A Wall Street Journal analysis of the 11 said this about Hardiman:

Judge Thomas Hardiman, 50, joined the Third U.S. Circuit Court of Appeals in 2007, after serving as a district court judge in Pennsylvania for four years. Both appointments came from George W. Bush. A graduate of University of Notre Dame and Georgetown University Law Center, he worked in private practice at Skadden, Arps, Slate, Meagher & Flom LLP and other law firms before becoming a judge. The Trump campaign says he’s the first in his family to attend college. In a decision he authored, which was later affirmed by the U.S. Supreme Court, the appeals court held that a jail’s policy of strip-searching all detainees, even those with minor alleged offenses, wasn’t a violation of the Fourth Amendment.

A Washington Post analysis of the 11 by Amber Phillips included this:

Hardiman is a judge on the U.S. Court of Appeals for the 3rd Circuit and also a George W. Bush appointee. He’s a Georgetown Law School graduate and has written two majority opinions that were reviewed by the Supreme Court: one supporting the strengthening of mandatory minimum sentences for criminals, and the others supporting a Pennsylvania jail’s policy of strip-searching the people it arrests, arguing that it does not violate a person’s Fourth Amendment right of unreasonable searches and seizures.

Arch-liberal Mark Joseph Stern of Slate had this:

Then there’s Thomas Hardiman. Another Bush appointee, Hardiman is a law and order guy. He wrote an opinion affirming the constitutionality of a jail’s policy to strip search every single arrestee—even those brought in for minor traffic offenses. (Regrettably, the high court narrowly upheld his decision.) In a different case, Hardiman wrote that there is no clearly established First Amendment right to videotape law enforcement officers in public—an extremely dubious if not outright incorrect proposition. Hardiman reads the Second Amendment quite broadly, arguing that states cannot restrict residents’ ability to carry handguns in public. And while he interprets the First Amendment broadly in the realm of campaign contributions, he takes a very narrow view of students’ free speech rights. Sound familiar?

Ron Brynaert of Dailycaller had this critical look at one of the same cases mentioned by Stern, Hardiman’s opinion in a 2010 case affirming summary judgment in favor of a police officer and ruling that there was no clearly established right to videotape officers during a traffic stop. (Neither article mentions the important fact that Hardiman’s opinion was joined in full by McKee and Pollak by designation.)

UPDATE: another liberal take, by Ian Millhiser on Thinkprogress, is here. He calls Hardiman “one of the more enigmatic names on Trump’s list” and says “he appears to have had more luck steering away from controversial cases,” resulting in “a thinner ideological profile than some of the other names on Trump’s list.”

Finally, Paul Gough had this brief profile of Hardiman in the Pittsburgh Business Times.

UPDATE: here’s a thoroughly reported critical profile of Hardiman by Rich Lord in Pittsburgh CityPaper from way back in 2003, when Hardiman’s WDPA nomination was pending.

And Laura Olson has this profile of Hardiman in the Allentown Morning Call, citing the 2003 profile and noting his bipartisan political ties.


Trump names Hardiman as one of his possible Supreme Court picks [updated]

Presumptive Republican presidential nominee Donald Trump today released a list of 11 potential Supreme Court justice nominees that he would vet to fill Justice Scalia’s seat, the Associated Press reports.

Among those on the list: Third Circuit Judge Thomas Hardiman.

[Hat tip to How Appealing.]


UPDATE: Early conservative commentary has been enthusiastic about Trump’s list but has little to say about Hardiman specifically:

Ilya Shapiro at Cato

John Yoo at National Review

Jim Geraghty at National Review

Paul Mirengoff at Powerline


UPDATE 2: Here is some good early Hardiman-focused coverage:

Brian Bowling at TribLive

Gina Passarella at Legal Intelligencer


Bridgegate appeal panel announced

The Third Circuit has just updated its argument calendar to indicate that the panel for the Bridgegate appeal, North Jersey Media Group v. United States, will be Ambro, Jordan, and Scirica. (Sorry, media, no Barry.) The listing is here.The argument will be at 3 p.m. on June 6 in the Maris courtroom, and it will be the only argument the panel hears.

As I noted earlier today, the panel reportedly will decide whether the argument will be open to the public based on briefing on that question due today.

You still don’t have a constitutional right to own an M-16 machine gun

United States v. One Palmetto State Armory — Civil / Second Amendment — affirmance — Thompson

The Second Amendment does not give people the right to own machine guns, the Third Circuit held today. And would-be machine gun owners can’t dodge the federal law against machine-gun possession by just creating a trust to own it instead.

Joining Thompson D-NJ were Ambro and Krause. Arguing counsel were Stephen Stamboulieh for the would-be machine gun owner and Patrick Nemeroff for the government.


Bridgegate appeal update

Tim Darragh has an informative update on the Bridgegate appeal this morning at Darragh reports that the Third Circuit ordered the parties to file briefs today on whether the June 6 oral argument should be open to the public, and next week on whether the as-yet-unnamed appellant gets to stay anonymous. He also reports that the media parties last night filed a motion to reconsider challenging Judge Ambro’s stay blocking release of the names.

Third Circuit panel will hear argument on Bridgegate disclosure; media fixates on Barry’s role

The long-simmering Bridgegate scandal will make its way to the Third Circuit next month, when a panel of the court hears argument on whether to release the names of the unindicted co-conspirators, per an order reportedly signed today by Judge Ambro.

Much of the early media coverage on the order focuses on whether Judge Barry would recuse herself from the panel, given that Governor Christie is both a central figure in the Bridgegate scandal and a top supporter of Barry’s brother, presumptive Republican Presidential nominee Donald Trump. Here are links to stories by Gawker, Twitchy, and Politico.

UPDATE: and here’s another, by Philip Bump for the Washington Post, that begins, “A clear disclaimer at the top: There is a chance — an outside, unlikely chance — that this happens.”

Of course, the odds of Barry (or any other individual judge) being even assigned to any particular three-judge panel are fairly low, and if she chose to recuse she likely would be replaced without the public ever knowing.

But even if there ends up not being any Barry angle, I expect this to remain a high-profile case for the court.

Two new opinions

Fair Housing Rights Ctr v. Post Goldtex — housing –affirmance — Nygaard

Today, the Third Circuit answered this “somewhat abstruse” housing-law question: “do the design and accessibility requirements of the Fair Housing Act (FHA), 42 U.S.C. § 3604(f)(3)(C), apply to a commercial building that was originally constructed before the requirements’ effective date, but converted into residential units after that date?” HUD had answered the question in the negative, and, applying Chevron deference, the Third Circuit today agreed.

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


MRL Development v. Whitecap Investment  — civil — affirmance — Fisher

The plaintiffs bought treated lumber for the deck of a vacation home, but the lumber didn’t last, and the plaintiffs sued. The district court ruled that the suit was time-barred and granted summary judgment. Today the Third Circuit affirmed, applying the gist-of-the-action doctrine (which bars tort claims that merely replicated contractual claims).

Joining Fisher were Krause and Roth. Arguing counsel were Thomas Wilkinson of Cozen O’Connor for the appellants and Alex Moskowitz, Andrew Kelly, and Robert Carlson for the appellees.

New opinion — Third Circuit reverses on civil-procedure error

In re: Asbestos Prods. Liability — civil — reversal — Hardiman

A railroad worker was exposed to asbestos used for insulation on railcars. He contracted asbestosis and mesothelioma and sued the railcar manufacturers under state law. The defendants argued that the state-law claims were pre-empted, and the district court agreed and dismissed the suit. Today the Third Circuit reversed, holding that the district erred procedurally by dismissing based on facts that were not pled in the complaint. The court acknowledged that the district court could treat the motion as one for summary judgment instead of dismissal, but held that summary judgment was not appropriate here either because the defendants did not provide evidentiary support for the district court’s factual finding, or, at a minimum, there was a factual dispute and the court had to draw inferences in the non-movant’s favor.

Joining Hardiman were Ambro and Nygaard. Arguing counsel were John Roven of Houston for the appellant (joined on the brief by Howard Bashman ) and Holli Pryer-Baze of Akin Gump and Joseph Richotte for the appellees.

New opinion — a bankruptcy affirmance

In re: Net Pay Solutions — bankruptcy — affirmance — Hardiman

The Third Circuit today upheld a district court’s rulings in a bankruptcy case denying the debtor’s motions to avoid five preferential transfers. The debtor made five tax payments for its clients the day before it went out of business, and it sought to recover the funds in bankruptcy, but the court held that four were minimal as to each creditor and the fifth did not involve the debtor’s property because it was only held in trust.

Joining Hardiman was Smith; Sloviter had on the panel before she assumed inactive status. Arguing counsel were Markian Slobodian as debtor’s trustee and Ivan Dale for the government.

New opinion — ‘interesting tax-accounting appeal’ is not an oxymoron, apparently

Giant Eagle v. Commissioner — tax — reversal — Roth

A supermarket offered its customers a discount on gas purchases: for every $50 spent on groceries, they got 10 cents off a future gas purchase. Naturally, at the end of the tax year, there were customers who had earned a gas discount but had not yet redeemed it. In its taxes, the supermarket claimed those earned-but-not-yet-redeemed discounts as deductions, reducing the total amount outstanding by past redemption rates. The IRS and the tax court disallowed the deductions, but today a divided Third Circuit reversed, ruling in the supermarket’s favor.

Joining Roth was Fisher; Hardiman dissented. Both opinions are excellent. Arguing counsel were Robert Barnes of Marcus & Shapira for the supermarket and Julie Avetta (who had quite a wedding announcement) for the government.

New opinions — two civil affirmances

Eisai, Inc. v. Sanofi Aventis — civil — affirmance — Roth

The Third Circuit today affirmed summary judgment in favor of the defendant in an antitrust case. Pharma giant Sanofi used various marketing strategies to sell its anticoagulant drug Lovenox. The court ruled that these strategies may have harmed Sanofi’s competitors, but the competitors did not show they cause broad harm to the competitive nature of the anticoagulant market.

Joining Roth were Ambro and Fuentes. Arguing counsel were Jay Fastow of Ballard Spahr for the appellant and George Cary of Cleary Gottlieb for the appellees.


Davis v. City of Philadelphia — civil / tax — affirmance — Hardiman

The Third Circuit today held that federal protections limiting penalties for late property-tax payments for active-duty servicemembers do not apply to taxes owed by a corporation solely owned by the servicemember. The city was represented on appeal by private counsel, apparently not an appellate specialist, and in a footnote the court rejected the city’s “odd suggestion” about the applicable standard of review. The court also rejected the parties’ view that the key issue in the case was standing.

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

New opinion — a Fourth Amendment reversal

U.S. v. Vasquez-Algarin — criminal / Fourth Am. — reversal — Krause

The Third Circuit today decided an interesting and important search and seizure case today, holding that officers entering a dwelling to arrest someone must at least have probable cause to believe the person is there. The opinion ably explains matters:

Law enforcement officers need both an arrest warrant and a search warrant to apprehend a suspect at what they know to be a third party’s home. If the suspect resides at the address in question, however, officers need only an arrest warrant and a “reason to believe” that the individual is present at the time of their entry. This case sits between these two rules and calls on us to decide their critical point of inflection: how certain must officers be that a suspect resides at and is present at a particular address before forcing entry into a private dwelling?

* * *

We conclude that to satisfy the reasonable belief standard law enforcement required, but lacked, probable cause. The officers’ entry was therefore unconstitutional and, because the good-faith exception to the exclusionary rule is inapplicable here, the evidence seized from Vasquez-Algarin’s apartment should have been suppressed.

The court joined four other circuits in interpreting reasonable belief as at least functionally equal to probable cause, splitting sharply with the D.C. Circuit and less sharply with two others.

Joining Krause were Fuentes and Roth. Arguing counsel were Frederick Ulrich of the MDPA Federal Public Defender for the defendant and Daryl Bloom for the government.

New opinion — persistent police get valid consent to enter

United States v. Murray — criminal — affirmance — Barry

When police knocked on the door of a motel room, a woman inside said she was busy and to go away. A different officer knocked, and the woman again said she was busy. So the officer said he was a police officer and “asked her to open the door,” and he knocked on the window and showed his badge through the window. The woman then opened the door and let the police into the room, where they found evidence used to incriminate the defendant. The district court held that the officers’ entry into the motel room was lawful due to the woman’s voluntary, uncoerced consent. Today, noting the woman’s later testimony that she had been glad the police came and wanted to open the door, the Third Circuit affirmed.

Joining Barry were Fisher and Rendell. The case was decided without oral argument.

Third Circuit reversed in free-speech case

This morning the Supreme Court issued Heffernan v. City of Paterson, reversing by a 6-2 vote the Third Circuit, holding:

When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

Here, police officer Heffernan was fired after he was seen getting a political candidate’s yard sign. In reality he picked up the sign for his mother, but he was fired based on the mistaken view that he was supporting that candidate himself. In a decision I described at the time as “wacky” and a head-scratcher, the Third Circuit had affirmed summary judgment against Heffernan, without oral argument, on the theory that he was not actually exercising his First Amendment rights.

The Supreme Court remanded for further proceedings on whether the employers acted pursuant to a neutral policy.

Third Circuit to start using eVoucher in CJA cases

The Third Circuit website today announced:

The Court of Appeals will be going live on eVoucher on June 6, 2016.  All CJA attorneys are directed to review the attached notice regarding the deadline for submission of outstanding vouchers and the implementation process.

The notice is here. Some notable points:

In order to avoid delays in payment, all CJA appointed attorneys with outstanding
vouchers in appeals that are final or with vouchers eligible for interim payment must be
received in the Clerk’s Office in paper format on or before Wednesday, May 18, 2016.

* * *

Once the Court transitions to eVoucher on June 6, 2016, the Court will no longer
be able to process any vouchers submitted in paper format. All paper vouchers submitted
after May 18, 2016 will be returned to counsel without processing. Counsel will then
have to wait to resubmit the voucher until the Clerk’s Office can create the appointment
in eVoucher. Vouchers cannot be submitted electronically until after the Court goes live
on June 6th.

* * *

Any questions regarding this transition to eVoucher should be directed to or 215-299-4966.

The notice unfortunately doesn’t mention this, but I would think that the court’s inability to accept vouchers between May 18 and June 6 will mean that it will excuse compliance with its normal rule that CJA vouchers must be submitted within 45 days of the end of the case for cases where the deadline falls in the three-week no-submission period.

I just submitted my first eVoucher bill last month, in a non-Third Circuit case, and I’m still reserving judgment about the new system. But, improvement or not, it’s coming soon.

New opinion — Third Circuit upholds NLRB rulings against challenge based on NLRB recess appointments

Advanced Disposal Svcs East v. NLRB — agency/labor — affirmance — Smith

The Supreme Court held in Noel Canning that the National Labor Relations Board lacked a quorum in 2012 and 2013 because the recess appointments of three of its members were invalid. The case decided today by the Third Circuit involved NLRB actions that were initially invalid but later were ratified by the then-properly-constituted board. The court held that the ratification sufficed to support the board’s actions, and on the merits held that the board’s ruling was supported by substantial evidence. On a preliminary issue — whether the employer forfeit its challenge to NLRB authority by failing to raise the issue before the board — the Third Circuit expressly deepened a circuit split, joining the D.C. Circuit against the Eighth Circuit. I doubt we’ve heard the last of this case.

Joining Smith was Hardiman; Sloviter also was on the panel when it heard argument but assumed inactive status before the opinion issued. Arguing counsel were Daniel Barker for the employer and Kellie Isbell for the NLRB.


New opinions — a rare criminal reversal and a bankruptcy reversal

US v. Lopez — criminal — reversal — Vanaskie

Criminal defendants don’t win too many Third Circuit appeals, especially by published opinion and most especially under plain-error review. But it happened today. The court vacated Victor Lopez’s conviction for being a felon in possession of a firearm, holding that the prosecution violated Doyle v. Ohio by impeaching Lopez with his post-Miranda silence and ordering a new trial despite trial counsel’s failure to object to the error. The court ruled that the error affected the outcome because the error impacted Lopez’s credibility and the case hinged on credibility.

In a footnote, the court lamented that the Doyle error was “particularly egregious” because such errors “unfortunately resurface[] too often, threatening to undermine the integrity of proceedings in our courts.” After reiterating that it remained troubled by the recurring violations, the court “commend[ed] Assistant United States Attorney Steven G. Sanders for his forthright acknowledgment of the Doyle error during oral argument,” noting, “He was a model of professionalism in apologizing for the error at trial and vowing to take steps to avoid having this type of error recur.” Audio of the oral argument is here.

For criminal defense counsel, three prejudice points bear noting:

  1. The whole record matters. In finding that the error affected the outcome, the court didn’t just look at the testimony, it also looked at how the prosecutor argued that testimony at closing and at the questions jurors asked during deliberations.
  2. The fact that the credibility contest was between a defendant and police officers did not prevent the court from finding a reasonable probability that the error affected the outcome. Nor did the fact that the dispute was over whether the cops framed the defendant. In other words, the court recognized a reasonable probability that, without the improper impeachment, the jury would have believed that the defendant was telling the truth that the cops framed him, and that two police officers were lying when they said they found the gun on him.
  3. The court rejected the government’s argument that the Doyle error did not make a difference because the jury had valid reasons to disbelieve the defendant — he had prior felony convictions and gave a false name when arrested.

Joining Vanaskie were McKee and Jordan. Arguing counsel were Steven Sanders for the government and my former colleague Maria Pulzetti of the EDPA Federal Community Defender for Lopez.


In re: World Imports — bankruptcy — reversal — Jordan

The Third Circuit today reversed a district court ruling in a bankruptcy case, holding that contractual modifications to a creditor’s maritime liens were enforceable on goods in the creditor’s possession.

Joining Jordan were McKee and Vanaskie. Arguing counsel were Brendan Collins for the creditor and David Braverman for the debtor.

“Free Pa’s federal judicial nominees from Senate limbo”

The title of the post was the headline of an April 15 staff editorial on, criticizing Senate Republicans’ “absolute fetish of blocking President Barack Obama’s judicial appointments – an obstructionist posture that has burdened benches across the nation, particularly in Pennsylvania.” One of the obstructed nominations mentioned, of course, is that of Rebecca Ross Haywood to the Third Circuit.

From the editorial:

Reporter Rob Hotakainen writes that the Senate has approved just 17 judicial nominations since Republicans took control in 2015. That’s fewer than half the 40-plus circuit and district court nominees approved by the Democratic-controlled Senate during a similar period during George W. Bush’s presidency. In fact, last year saw the fewest judicial confirmations since 1960.

So much for Republican majority demonstrating it can govern.

The result is an overburdened federal judiciary for which there is little hope of assistance any time soon. That’s bad news for Pennsylvania, which has four judicial appointees awaiting votes – tied with Texas for the most in the nation.

Otherwise, Haywood’s nomination has been getting disappointingly little media attention recently, as the Garland nomination continues to use up all the judicial-nomination-coverage oxygen.

New opinion — Third Circuit decides a major preemption case

Sikkelee v. Precision Airmotive — civil — reversal — Krause

The Third Circuit today held that federal aviation-safety law does not preempt state-law products-liability claims, reversing on interlocutory review a district court grant of summary judgment. The appeal arose from a fatal Cessna plane crash in 2005; the pilot’s wife alleged that the crash was caused by faulty design of the plane’s carburetor.

The opinion features a thorough and thoughtful discussion of preemption, “a necessary but precarious component of our system of federalism.” (On this point the opinion cites a 1995 Kennedy concurrence, notable because Krause clerked for Kennedy in 1994-95.) The court rejected an expansive interpretation of prior landmark preemption case, Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. 1999), holding that Abdullah does not govern products-liability claims. It then proceeded to a close analysis and Congressional intent and relevant precedent.

Joining Krause were Chagares and Van Antwerpen. The high-powered arguing counsel were Teijinder Singh of Goldstein & Russell for the appellant and Kannon Shanmugam of Williams & Connolly for the appellees.


New opinion — Third Circuit upholds NFL concussion-suit settlement

In re: NFL Players Concussion Injury Litig. — class action — affirmance — Ambro

The Third Circuit today affirmed approval of a $1 billion settlement in a suit brought by former pro football players against the NFL for failure to inform of risks, and protect them from injuries, arising from concussions. The court rejected objections to both class certification and the settlement terms.

Early coverage by Ken Belson in New York Times here and Jeremy Roebuck on here.

Joining Ambro were Hardiman and Nygaard. The superstar-studded cast of arguing counsel were Samuel Issacharoff and Paul Clement for appellees, and Howard Bashman, Deepak Gupta, Charles Becker, Cullin O’Brien, and Steven Molo for the appellant objectors. Audio of the almost-two-hour-long argument is here.

New opinion — Court affirms denial of habeas corpus relief

Dellavecchia v. Secretary PA DOC — habeas corpus — affirmance — Greenberg

After being arrested for murdering a man, James Dellavecchia smashed his head into the bars of his cell and was taken to the hospital. Dellavecchia was arraigned in his hospital bed and, while the arraigning police officer was there and without counsel, Dellavecchia made various admissions that the prosecution later used against him at trial. The state court found that admission of the defendant’s statements did not violate the Sixth Amendment because the statements were spontaneous and unsolicited. The district court denied Dellavecchia’s habeas petition, and today the Third Circuit affirmed, holding that the state-court ruling was not an unreasonable application of Supreme Court holdings and that, even if there were error, it would be harmless because the prosecution’s case was overwhelming.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument.


New opinion — two-judge panel affirms in civil appeal

Havens v. Mobex Network Svcs — civil / telecommunications — affirmance — Roth

The Third Circuit today affirmed district court rulings for the defense in a dispute over maritime telecommunications licenses. The court upheld dismissal of the plaintiffs’ claims under the Federal Communications Act and entry of judgment on their Sherman Act claim.

Joining Roth was Fuentes; Sloviter had been on the panel and heard oral argument but assumed inactive status before the opinion issued and so the opinion was filed by panel quorum. Arguing counsel were Stephen Hudspeth for the appellants and Robert Mauriello Jr. for the appellees.

Sheldon Adelson lost an appeal today in the Third Circuit [updated]

Casino magnate and major conservative political donor Sheldon Adelson lost a Third Circuit appeal today in an unpublished opinion. The opinion is here. Adelson (who, ironically, owns the Las Vegas Review-Journal) brought a defamation suit against a reporter for writing an article referring to him as “foul-mouthed.”  Huffington Post coverage of the suit here. The reporter’s defense, the opinion notes drily, is that the statement is “true in substance and fact.” The reporter sought discovery from a third-party of documents involving foul language by Adelson, the district court granted the discovery, and today the Third Circuit affirmed.

Gee whiz.

(Only the nerdiest among you will share my interest in noting that the opinion lists the attorneys in the caption, which is unusual for Third Circuit non-precedential opinions. UPDATE: a diligent reader reminded me that the court lists the attorneys in non-published opinions whenever oral argument was held.)

New opinion — Third Circuit finds serious misconduct by prosecution, but affirms due to overwhelming evidence

Gov’t of the V.I. v. Mills — criminal — affirmance — Krause

The Third Circuit today issued a major opinion on prosecutorial misconduct, holding that the prosecution committed severe and pervasive misconduct but that the defendant was not entitled to a new trial because the evidence against him was overwhelming, his defense was implausible, and the court gave effective curative instructions. The Third Circuit found three types of misconduct: urging jurors to convict Mills to protect themselves, urging jurors to convict based on bad conduct not relevant to the charged crimes, and displaying a photo of the victim’s corpse during closing argument to evoke sympathy.

Joining Krause were Fisher and Roth. (Notably, both Krause and Fisher were prosecutors before joining the court.) Arguing counsel were Su-Layne Walker for the government and Joseph DiRuzzo III for the defendant.

New opinion — Third Circuit recognizes Supreme Court overruling on settlement-offer mootness

Weitzner v. Sanofi Pasteur — civil / class action — affirmance — Scirica

Today the Third Circuit held that an unaccepted offer of judgment, filed prior to a plaintiff’s class certification motion, does not moot a plaintiff’s entire action. The court applied the recent Supreme Court ruling in Campbell-Ewald Co. v. Gomez, which the court recognized overruled its prior contrary holding in Weiss that an offer of complete relief generally moots the plaintiff’s claim. The court stated, “Beyond this, we decline to elaborate on the implications of Campbell-Ewald on our other holdings in Weiss.”

Joining Scirica were Shwartz and Roth. Arguing counsel were Carl Greco for the defendants and Todd Bank for the class plaintiffs.

Judge Sloviter, a “trailblazer” and “true legal giant,” assumes inactive status

Iconic Third Circuit Senior Judge Delores K. Sloviter assumed inactive status yesterday. Her decision was announced in a press release issued by Chief Judge McKee (link here from How Appealing). According to Chief Judge McKee’s statement, she “made the difficult decision due to a serious medical condition with her eyes.”

Chief Judge McKee’s statement contains a warm tribute to Judge Sloviter, describing her as “a trailblazer” and noting that she was the first woman to be a Third Circuit judge and the only woman to be the court’s Chief Judge. The statement concludes:

Judge Sloviter is a true legal giant. Her contribution to the Court and the legal profession cannot be diminished. I speak for the entire Court family in wishing Judge Sloviter good health, and in thanking her for all that she has done for the Third Circuit. We expect and hope that she will continue to play an active role in the life of the Court through participation on court committees and other duties.

Additional coverage by P.J. D’Annunzio in the Legal Intelligencer here, with admiring quotes from Shira Goodman, Chip Becker, and Bill Hangley. And Bruce Greenberg has this post on his New Jersey Appellate Law blog.

Chief Judge McKee’s statement does not mention what will happen to Judge Sloviter’s current clerks. (One of them is Tyson Herrold, per LinkedIn.) Here’s hoping they land on their feet.

Judge Sloviter’s final published opinion was last November, here. Her final decided case was yesterday, here. UPDATE: I spoke too soon. The court issued a per curiam opinion today (the day after she assumed inactive status) in which she is listed on the panel.

The Third Circuit will not be the same without her.


New opinion — partial reversal in an arbitration appeal

Hamilton Park v. 1199 SEIU — civil / arbitration — partial reversal — Ambro

The Third Circuit today affirmed in part and reversed in part in an appeal arising from an arbitration. The opening of the opinion aptly lays out the basics:

Hamilton Park Health Care Center filed a petition to vacate an arbitration award in a dispute with the 1199 SEIU United Healthcare Workers East union. The District Court denied the petition and confirmed the award. On appeal, Hamilton Park asserts that the Court erred by approving a multi-year arbitration award when the parties’ collective bargaining agreement (“CBA”) only contemplated a single-year award. Because the parties consented at arbitration to a multi-year award, we affirm this portion of the Court’s order.

Hamilton Park also argues that, even if a multi-year award is permissible, the Court should have severed a provision authorizing a new round of arbitration at a later date. We agree; thus we reverse and remand as to this portion of the order.

The conclusion clarifies the basis for reversal:

Our deference to an arbitrator’s award does not include the rubber stamping of a self-perpetuating arbitration provision that the parties did not agree to include. We therefore reverse the portion of the District Court’s order approving the inclusion of a new arbitration provision for disputes arising for the year starting June 30, 2015. We remand the case with instructions for the Court to void only the portion of the award providing for that arbitration. We affirm the Court’s order in all other respects.

(Citation and footnote omitted).

Joining Ambro were Jordan and Scirica. The case was decided without oral argument.

Today’s opinion was the court first published opinion since March 11.

Third Circuit hiring a clerk’s office court attorney

The Third Circuit posted a new job announcement this morning for a permanent court attorney position in the clerk’s office. I re-post job announcements like this one here partly as a service to the court, but mostly I do it because they give insight into how the court does its work.

The position reports to the chief deputy clerk and “provides legal guidance and direction for the procedural management of the court’s caseload.” Here are court attorney’s duties:

• Drafts Clerk’s procedural orders which facilitate case management.
• Conducts the initial screening of cases.
• Conducts legal research.
• Provides legal memoranda to the court in emergency matters.

The link to apply online is here. The closing date is April 22, so tarry not, my fellow appellate-procedure devotees!

A GVR and a capital-case cert denial for Third Circuit today

This morning’s U.S. Supreme Court order list included two Third Circuit cases of note.

First, the Court granted certiorari, vacated the judgment, and remanded in light of Johnson v. U.S. in Moon v. U.S., a criminal appeal the Third Circuit decided in a 2015 non-precedential opinion. Moon was represented by Philadelphia assistant federal defender Brett Sweitzer.

Second, the Court denied certiorari in Saranchak v. Wetzel, a capital habeas corpus appeal. The Third Circuit granted penalty-phase relief in 2015 while affirming the conviction, and Saranchak had sought cert presumably on the guilt-phase ruling.

The Court granted cert in one case to review a First Circuit case involving acquittals and Double Jeopardy (QP #1 on Scotusblog).

“Friends, neighbors hail Haywood nomination”

Today’s Uniontown (Pa.) Herald Standard has this adoring profile of Third Circuit nominee Rebecca Haywood by Pat Cloonan. The main sources are childhood friends, neighbors, and teachers, including a classmate who also became a lawyer:

“I think she has the intellect and temperament to be an outstanding appellate judge,” said Dan Sinclair, a partner in the Ecker[t] Seamans law firm who graduated with Haywood in 1986. “We had a lot of the same classes, and some activities. I hope the United States Senate considers her and confirms her quickly.”

* * *

Sinclair recalled Haywood being valedictorian of the Class of 1986.

“I can’t think of very many people I have met in this profession who are more qualified or more suited to be a federal appellate judge than she is,” Sinclair said. “Her work experience and her background make her very well suited for that.”

Neat story.

A glimmer of hope for litigant asking Supreme Court to review a Third Circuit ruling I called questionable

Last week the Supreme Court asked the Solicitor General to file a response to a certiorari petition challenging a controversial 2015 Third Circuit decision. Third Circuit, I love you, but I’m rooting for reversal.

Last August, the Third Circuit rejected Cosmo Fazio’s appeal challenging his guilty plea. I sounded off here, to wit:

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.

It bugged me so much that I went hunting online, and what I found bugged me some more:

Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.

Fazio’s motion for en banc rehearing (joined by an amicus) was denied, and he filed a Supreme Court petition for certiorari last month. Counsel of record remains Mark Goldstein. The government waived response, but last week the court requested one, due April 14. (The Supreme Court docket page is here.)

The call for response is encouraging, but statistically speaking a cert grant remains a longshot. A 2009 law review article reported that calls for response up the odds of granting cert from less than 1% to 8.6%.

Stay tuned.

UPDATE:  I just noticed that Third Circuit nominee Rebecca Ross Haywood was listed as one of the two lawyers representing the government in Fazio in the Third Circuit. (Michael Ivory was the AUSA who did the oral argument.) [UPDATE TO UPDATE: The opinion caption listed Haywood among counsel, but her name does not appear on the government’s brief.]

UPDATE 2: According to his linkedin page, the plea lawyer ended his practice in 2011 and now is a facilities engineer for a charity in Colorado. The PA Disciplinary Board website lists his status as suspended.

Third Circuit asked to decide scope of citizens’ right to film police [updated]

Today on Jason Nark has a story entitled, “ACLU challenges ruling on right to film police,” which begins:

Civil rights lawyers on Monday appealed a federal court ruling in Philadelphia establishing that citizens do not necessarily have a constitutionally protected right to record police activity.

 The American Civil Liberties Union of Pennsylvania and local civil rights lawyers filed an appeal with the U.S. Court of Appeals for the Third Circuit on behalf of two Philadelphia residents, one arrested and the other detained, for taking photographs and video of police incidents in the city.

Last month, U.S. District Judge Mark A. Kearney ruled that unless a videographer announces the recording as an act of protest or a challenge to police, officers may stop the recording.

Prior news coverage of the case is here. Sharply critical commentary of the district court ruling in the Washington Post is here. Eugene Volokh criticized the ruling and predicted it will be reversed on appeal on Volokh Conspiracy here. The ACLU discusses the appeal here.

UPDATE: ACLU-PA staff attorney Molly Tack-Hooper yesterday posted this explanation of the case and the underlying issue on the ACLU blog Speaking Freely, entitled, “No, It’s Not Illegal to Record the Philadelphia Police! — Fields/Geraci Ruling Explained.”

Considering whether Haywood is qualified through the lens of an appeal she lost

Republican Senator Pat Toomey reportedly thinks Third Circuit nominee Rebecca Ross Haywood isn’t qualified. Yesterday I looked at whether Haywood is qualified by examining her legal experience. I concluded that her experience as an AUSA and a federal clerk compares favorably with the court’s recently appointed judges.

We can also approach the question of whether Haywood is circuit-judge material from a different angle. Being qualified isn’t just about experience, it’s also about ability.

As the chief of appeals for the WDPA U.S. Attorney’s office, Haywood has been involved in a lot of appeals. Earlier this week I linked to audio files for four of her oral arguments, featuring her argument in Wecht.

Today I want to take a closer look at another of Haywood’s appeals. I picked US v. Gregory Brown, 13-4442, for a few reasons. First, it’s pretty recent, briefed and argued in 2014. Second, it looks like Haywood handled the case personally, since there is no subordinate AUSA listed on the brief. Third, it resulted in oral argument and a published opinion. And, importantly, the government lost, so if Haywood’s work weren’t up to par this case would be a good bet to show that.

To assess the quality of Haywood’s work in Brown, I looked at the brief she filed in the appeal (from Pacer) and the oral argument.  (I also looked at Brown’s reply brief, the court’s opinion, and Haywood’s unsuccessful panel rehearing petition.) Here’s what struck me:

  • Overall, Haywood’s brief was outstanding: clear, clean, and on-target. Not a hint of the rhetorical fist-shaking that drains the credibility of so many appellate briefs. Thoroughly professional.
  • The brief wasn’t just competent, it was also confident and creative. In most briefs, the jurisdictional statement is just a dry litany, but she used it to mention on page one the powerful fact that the defendant had threatened to kill two federal judges. She departed from the typical formula in her issue statement, three pages long and full of facts and cites. Most related-case statements I see are lazy, but she put in the effort to find and list 23 other appeals the defendant had brought, again helping frame things to her advantage.
  • Her oral argument was terrific, too. (Here’s the link to the audio again; her argument starts at 16:25.) The panel (Ambro, Barry, Restani) was extremely engaged. Her answers are direct, respectful yet assertive, and cogent. Listen to the section from 22:24 to 24:10 (she’s responding to a long Ambro question that began at 21:30). That’s a model for how a thoroughly prepared advocate handles hard questions. It’s a graceful, powerhouse performance.
  • She was great, not perfect. The defendant’s reply brief said her brief ducked a significant issue. The typography in her brief wasn’t Butterick-caliber. And towards the end of her oral argument she was speaking a bit too quickly and seemed to speak over a judge.

Bottom line, I saw nothing in Haywood’s performance in Brown that would support Toomey’s charge that she is unqualified. All I see is a first-rate advocate with the makings of an outstanding judge.

A look at Third Circuit nominee Rebecca Haywood’s qualifications

Senator Pat Toomey reportedly has questioned Rebecca Haywood’s qualifications to be a Third Circuit judge, but a quick comparison of her background with the court’s recently confirmed judges shows that her qualifications compare favorably.

In the past 10 years, there have been 8 judges confirmed to the Third Circuit: Chagares, Jordan, Hardiman, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo.

Of those 8, there are 5 who had served as Assistant U.S. Attorneys (the times of service are approximate):

  • Chagares — 14 years as AUSA, with 5 years as chief of civil division
  • Jordan — 5 years as AUSA
  • Greenaway — 5 years as AUSA, with 2 as chief of narcotics
  • Shwartz — 14 years as AUSA, with 3 as chief of criminal division and 2 as executive AUSA
  • Krause — 5 years as AUSA

Haywood has been an AUSA for 17 years, with 6 years as appellate chief.

Of the same 8, there were 6 who had clerked for federal judges:

  • Chagares — circuit
  • Jordan — district
  • Greenaway — district
  • Vanaskie — district
  • Shwartz — district
  • Krause — circuit and USSC

Haywood clerked twice for WDPA Judge Bloch.

And, while I haven’t run the numbers on this, I’d bet the farm that Haywood has more experience arguing cases in the Third Circuit than any recent Third Circuit nominee. Earlier I linked here to a few of her more significant Third Circuit oral arguments.

Unqualified? Hard to square that with her record.

Haywood background round-up [updated]

Biographical information is beginning to emerge for Rebecca Ross Haywood, President Obama’s nominee to the Third Circuit.

First, here is the full text of the White House nomination announcement:

WASHINGTON, DC – Today, President Obama nominated Rebecca Ross Haywood to serve on the United States Court of Appeals for the Third Circuit.

“Throughout her career, Rebecca Ross Haywood has shown unwavering integrity and an outstanding commitment to public service,” said President Obama. “I am proud to nominate her to serve on the United States Court of Appeals.”

Rebecca Ross Haywood:  Nominee for the United States Court of Appeals for the Third Circuit

Rebecca Ross Haywood is an Assistant United States Attorney in the Western District of Pennsylvania, where she has served as Chief of the Appellate Division since 2010.  As part of the office’s Management Team, she regularly consults on and reviews filings for the United States Attorney’s Office for the Western District of Pennsylvania.  In addition, Haywood frequently practices before the United States Court of Appeals for the Third Circuit and confers with trial attorneys on cases before the United States District Court for the Western District of Pennsylvania.

Haywood was born in McKeesport, Pennsylvania and raised in the neighboring town of Elizabeth, Pennsylvania.  She received her A.B. cum laude in 1990 from Princeton University.  She then attended the University of Michigan Law School, where she served as an Associate Editor on the Michigan Law Review and obtained her J.D. magna cum laude in 1994.  After graduating from law school, Haywood clerked for the Honorable Alan N. Bloch of the United States District Court for the Western District of Pennsylvania from 1994 to 1996.  From 1996 to 1997, she worked in the Pittsburgh office of the law firm of Jones, Day, Reavis & Pogue (now Jones Day).  Haywood served as an Assistant United States Attorney for the Western District of Pennsylvania from 1997 to 2001, where she handled civil matters, including representing federal agencies in employment and medical malpractice cases.  From 2001 to 2003, she once again clerked for the Honorable Alan N. Bloch.  In 2003, Haywood returned to the Civil Division of the U.S. Attorney’s Office for the Western District of Pennsylvania, where she was promoted to Appellate Chief in 2010.

During her time in the United States Attorney’s Office, Haywood has been actively involved in workplace management and training, serving as a member of the executive and training committees since 2011, as well as serving as the coordinator for prevention of workplace harassment from 2004 to 2010.  In addition, she is actively involved in the community and regularly speaks to students and legal organizations about the law and her career.

Second, a Haywood wikipedia entry was born today.

Here is a link to the oral argument audio in one of the more significant appeals Haywood handled as an Assistant U.S. Attorney, United States v. Wecht. Haywood’s argument begins at 22:00. The panel was Smith, Fisher, and a spirited Van Antwerpen, and her opposing counsel was David Fine. The resulting opinion ruling in the government’s favor is here.

Three other notable Haywood oral arguments:

Strong coverage of the nomination controversy in this article entitled, “Toomey Irked by Obama’s Third Circuit Nominee,” by P.J. D’Annunzio in yesterday’s Legal Intelligencer.

Groups issuing statements in support of her nomination include Why Courts Matter Pennsylvania, here, and Alliance for Justice, here.

The best profile of Haywood so far is Brian Bowling’s article at A photo of Haywood accompanies the post, along with some good quotes (with hyperlinks added by me):

The nomination of Haywood, who is black, is an important step for diversifying the courts, said Tim Stevens, of the Pittsburgh Black Political Empowerment Project.

“There’s a dearth of people of color in the courts, either locally or nationally,” he said. “Her nomination is important not only as a person of color but as a person of integrity.”

Two former assistant U.S. attorneys who worked with Haywood and, as private attorneys, faced off against her in court, said she’ll make a good judge.

“Aside from possessing the most important quality a judge can have — which is good judgment — Rebecca is brilliant and thoughtful,” said Tina Miller, a criminal defense lawyer who has known Haywood for more than 20 years.

“She’ll make an excellent judge,” said Stephen Stalling[s], a criminal defense lawyer who worked with Haywood for four years. “She has first-rate appellate experience, an excellent legal mind and probably the perfect temperament to serve on the 3rd Circuit: She’s intellectually curious, fair-minded and smart as a whip.”

Stallings was AUSA co-counsel with Haywood in Wecht.

Bruce Greenberg has this informative post at his New Jersey Appellate Law blog.

The Daily Princetonian has this profile, featuring a quote from her favorite undergraduate professor.

I will continue to update this post as additional sources become available.

Politics, not qualifications, is why Haywood won’t be confirmed

Rebecca Ross Haywood is not going to be confirmed by this Senate. Not because she’s somehow unqualified, not because she “struggled” to answer an interview question from Senator Pat Toomey, and not because President Obama chose a “confrontational approach” to judicial nominations. Haywood won’t be confirmed because Toomey will use his blue-slip power to block her, as he would use that power to block any Obama Third Circuit nominee now. The rest is just a charade, an effort minimize the price Toomey pays on election day for blocking the court’s first African American woman, just as Haywood was surely chosen to maximize that price. Toomey knows it, Obama knows it, hopefully poor Haywood knows it too.

“Obama’s pick … draws Toomey’s ire”

Jonathan Tamari and Jeremy Roebuck are reporting at that Republican Senator Pat Toomey is already attacking President Obama’s nomination of Rebecca Ross Haywood for the Third Circuit:

But Toomey questioned her qualifications, said the White House knows he does not support her, and said the administration had chosen a “confrontational approach” over a longstanding practice of cooperation when it comes to federal judges from Pennsylvania.

“Instead of blowing up a bipartisan working arrangement,” he added, “the president should take a step back, put an end to this political theater, withdraw a nomination that is not suitable for such an important lifetime position.”

* * *

Toomey said Haywood had “struggled to answer legal questions” about Obama’s executive actions shielding some illegal immigrants from deportation – moves that outraged conservatives.

Playing out as I predicted so far.

Rebecca Ross Haywood nominated for Third Circuit opening

Rebecca Ross Haywood, chief of appeals and Assistant US Attorney for the Western District of Pennsylvania, has just been nominated by President Obama to the Third Circuit. If confirmed, she will fill the seat vacated when Judge Rendell went senior and will be the third African American judge currently on the court.

Early coverage at here, statement by the Leadership Conference on Civil Rights and Human Rights here.

Former Third Circuit Chief Judge calls on Senate to act on Supreme Court opening

John Gibbons, former Chief Judge of the Third Circuit, signed a letter released today calling on Senate leaders to act on President Obama’s forthcoming Supreme Court nominee. Former D.C. Circuit Chief Judge Patricia Wald also signed the letter, which was featured in a story by Zoe Tillman in today’s National Law Journal.

The letter argues that there is no election-year exception to the Senate’s duty to consider judicial nominations, and “[t]o recognize such an exception would set a dangerous precedent.”

Gibbons was nominated to the Third Circuit by President Nixon and served from 1970 through 1990, when he retired to head the Gibbons law firm, where he continues to practice today. His seat on the court was filled by Samuel Alito.

New opinion — a petitioner win in an immigration appeal [updated]

Orozco-Velasquez v. Attorney General — immigration — remand — Roth

The Third Circuit issued a late-in the day opinion granting an immigration petition for review and remanding with instructions for the immigration court to consider the petitioner’s application for cancellation of removal. The appeal turned on interpretation of the Immigration and Nationality Act’s “stop-time” rule, and the court expressly disagreed with other circuits’ interpretation of the rule.

Joining Roth were McKee and Ambro. Arguing counsel were Amanda Johnson of Dechert for appointed amicus petitioner (the petitioner was pro se) and Robert Tennyson Jr. for the government. The opinion expressed appreciation to Stuart Steinberg and former Van Antwerpen clerk Ryan Moore of Dechert for undertaking the amicus curiae assignment pro bono, and noted that law student Johnson argued “adeptly.” It was issued a year and a week after the oral argument.

UPDATE: Amanda Johnson argued the case as third-year law student participating in Penn Law’s federal appellate litigation externship, supervised by Professor Louis Rulli as well as counsel at Dechert. Here is a Penn Law news release with background on the case.

New opinions — an extraordinary debt case and a jurisdictional dismissal

Goldenstein v. Repossessors Inc — civil — partial reversal — Krause

Oh, what a story. (The facts are taken from the opinion.)

A guy borrowed $1000 from a lender, offering his car as collateral. The interest rate on this loan was 250 percent. The lender wired the money into the guy’s account, and then the lender started withdrawing $208 each month. After two months the guy took the money out of the account because he didn’t realize it was the lender making those withdrawals. The next month, when the lender couldn’t withdraw the third payment, it promptly contracted to repossess the guy’s car. Then — the lender having already collected $415 in monthly installments and $50 as a transfer fee — the repossessor told the guy that to get his car back — this is just a few months after the guy took out the $1000 loan — he had to sign a release, pay a $250 repossession fee, and pay $2143 to satisfy the loan.

Which he did. Then he sued, under RICO, the FDCPA, and state law. Eye poppingly, the district court granted summary judgment, on all claims, against the guy.

Today, the Third Circuit affirmed as to one claim — upholding denial of the FDCPA claim because the defendants had a right to possess the car even if the underlying loan was illegally usurious — but reversed on everything else. The court emphatically rejected the district court’s view that RICO’s prohibition against collecting unlawful debt did not apply to seizing collateral. And the court reversed the summary judgment on the state law claims after offering this withering observation:

The District Court granted summary judgment against Goldenstein on his PFCEUA and UCC claims without addressing the substance of the PFCEUA claim, without even mentioning the UCC claim, and despite the fact that Appellees did not argue those claims in their motion for summary judgment.


Joining Krause were Greenaway and Greenberg. Arguing counsel were Robert Salvin for the guy and Neal Thakkar for the appellees.

S.B. v. KIndercare Learning — civil — jurisdictional dismissal — Sloviter

After a child was allegedly injured at a daycare center, her mother sued in state court. The daycare removed the case to federal court. The plaintiffs retained a new lawyer, who sought to voluntarily dismiss without prejudice because the child (age 4) was too young to explain her injury. The district court granted dismissal but ordered the plaintiffs to pay the daycare’s attorney fees and refile within 4 years (extendable for good cause). The plaintiffs appealed. and today the Third Circuit held that the voluntary dismissal without prejudice here was not an appealable final order. The court left open the possibility that a litigant could appeal the attorney fees once their amount had been set, and that a litigant could appeal the conditions in an appeal from a later dismissal with prejudice for failing to comply.

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



Judge Barry the centrist, in 3 opinions

The trumped-up controversy about Judge Maryanne Trump Barry focuses on a single opinion, her 2000 panel opinion in Farmer, the New Jersey abortion-ban case. As I detailed here, that opinion doesn’t support the ideologues’ criticism.

But there’s a broader point that’s been lost so far, too: Judge Barry has been a federal judge since 1983. She’s written gazillions of opinions. The fact that her critics rest their case on one of them is telling.

So, I recently spent some time poring back over Judge Barry’s opinions. It was boring. Unanimous panel after unanimous panel, controversy nowhere to be seen.

Here’s a good example: her 2015 opinion in Montgomery County Recorder of Deeds v. Merscorp. It was a fight over mortgage-recording fees between county deed recorders and the electronic registry industry, a high-stakes case with a raft of amici. Judge Barry’s opinion decided the case in favor of the industry on narrow, statutory grounds, affirming the district court and joining several other circuits. She acknowledged the losers’ policy arguments but said the courts’ role was not to decide if a statute was good or bad. Her opinion was joined in full by Judge Chagares (a W. Bush nominee) and Judge Krause (an Obama nominee). The more Barry opinions you read, the more you find like this.

Of course, judges sometimes disagree. In 2013, Judge Barry sat on a panel with Judges Fuentes and Cowen to decide Galarza v. Szalczyk, a civil-rights appeal brought by the ACLU challenging an immigrant’s detention. The panel majority held that local law enforcement do not have to honor immigration detainers. Judge Barry dissented, and her opinion is gloriously Barry — vigorous writing, pragmatic reasoning, limited scope. Here’s the close:

In the face of all of this, the Majority, in a sweeping
Opinion, has decided this enormously important issue. And it
did not stop there. Rather, it went on to conclude that “[e]ven
if there were any doubt about whether immigration detainers
are requests and not mandatory orders,” to read § 287.7 to
mean that a federal detainer is a command to a law
enforcement agency to detain an individual would violate the
anti-commandeering principle of the Tenth Amendment.

Maybe it would, and maybe it wouldn’t, even
assuming, with no great confidence, that the Tenth
Amendment issue should have been reached. Galarza did,
indeed, raise the issue in the District Court. The County,
however, never offered a full-throated response on the merits,
or lack thereof, of that issue, arguing instead that the
constitutionality of § 287.7 should be litigated in another,
more appropriate, case. Not unimportantly, the District Court
did not in its lengthy Opinion even mention, much less
decide, anything to do with the Tenth Amendment. Very
importantly, the United States was not heard as to it.

All of this makes me very uncomfortable. Given the
posture of the case before the District Court, I’m not sure
how, if at all, the United States could have been brought in.

What I am sure of is that we have gone very far in this very
important case without any input from the United States, and
we should pull back now. For now, though, I’m not prepared
to say, on what has essentially been a one-sided presentation,
that “shall” really doesn’t mean “shall” but, instead, means
“please.” I respectfully dissent.

One last one. Just two years after Farmer, The Third Circuit decided an employment discrimination suit brought on behalf of a group of women, Lanning v. SEPTA, and Judge Barry wrote the panel majority opinion, joined by Judge Roth. The plaintiffs had alleged that Philadelphia’s transit authority discriminated against women by requiring that transit-police applicants meet an aerobic capacity test that equated to running a mile and a half in 12 minutes. The women were represented by top civil-rights lawyers and were joined by the Women’s Law Project and the Feminist Majority Foundation as amici.

Judge Barry, purported radical pro-abortion extremist, ruled against the women. She wrote:

While not all SEPTA arrests are aerobic contests, nor are they always effectuated to apprehend “serious” criminals, the District Court found that “[a]n inability to proficiently perform any … task[] would compromise the effectiveness of the SEPTA transit police.” (emphasis added). In essence, the Court concluded what, to us, is now evident: a SEPTA transit police officer must be ready and able to apprehend not just the numerous sedentary, petty criminals, but also the fleet-footed few who, from time to time, wreak serious harm on the people of Philadelphia.

(footnotes and cite omitted). And her majority opinion concluded:

One final note. While it is undisputed that SEPTA’s 1.5 mile run test has a disparate impact on women, it is also undisputed that, in addition to those women who could pass the test without training, nearly all the women who trained were able to pass after only a moderate amount of training. It is not, we think, unreasonable to expect that women — and men — who wish to become SEPTA transit officers, and are committed to dealing with issues of public safety on a day-to-day basis, would take this necessary step. Moreover, we do not consider it unreasonable for SEPTA to require applicants, who wish to train to meet the job requirements, to do so before applying in order to demonstrate their commitment to physical fitness. The poor physical condition of SEPTA officers prior to 1989 demonstrates that not every officer is willing to make that commitment once he or she is hired. In any event, the multi-agency training which SEPTA candidates receive does not provide sufficient physical fitness training to bring an unqualified candidate up to the physical standard requirements.

This is a raging feminist jurist? Then-Judge McKee didn’t think so. He dissented, at length and with vigor, writing:

Prior to today’s decision, it was established in this Circuit, as it remains established in others, that a job requirement that has a disparate impact based upon gender could only be upheld if the relationship between the discriminatory requirement was so closely related to the essential of a given job that it could be justified as a business necessity. Today, in upholding a discriminatory application process based only upon a colorable claim of business necessity, we retreat from that standard while purporting to apply it.

In the end, these 3 cases merely illustrate what is obvious to anyone with experience practicing in the Third Circuit: the cartoonish image of Judge Barry the hellbent crusader is a fiction. The only folks who actually believe she’s a radical extremist are the radical extremists.

The Washington Post delves into Barry-gate [updated]

Fred Barbash has a story this morning on, entitled “Meet Donald’s Trump’s sister, the tough, respected federal judge Ted Cruz called a ‘radical pro-abortion extremist.'”


I’m featured — embarrassingly, as the lawyer “most notably” “stirred t[o] anger” by the Barry-bashing — and Barbash ends the story with a quote from CA3blog.

The article adds some telling details to the discussion: that Judge Barry was rated as a centrist in a study of circuit-judge ideology, that Seton Hall University publicly apologized for giving her an award, and that “antiabortion groups have been going after her for years about” the Farmer opinion.

Excellent story. Will it be the last word on this trumped-up controversy? Seems unlikely.

UPDATE: Rammesh Ponnuru of responds to the Washington Post article, and to me, here.

New opinion — Third Circuit finds error and criticizes the prosecution, but affirms

U.S. v. Steiner — criminal — affirmance — Fuentes

The Third Circuit today held that (1) admission of a defendant’s arrest on an unrelated offense was error but the error was harmless, and (2) the district court did not erro when it refused to instruct the jury that, in order to convict the defendant of possessing various ammunition, it must be unanimous as to each type of ammunition.

With respect to the improper admission of the unrelated arrest, the court emphasized that the trial prosecutor (who is not identified in the opinion) “played a central role,” adding “we are deeply troubled by the prosecutor’s statement at trial and “admonish[ing] the government to take greater care in its representations to the trial court and not brandish Rule 404(b) so cavalierly.”

Joining Fuentes were Jordan and Vanaskie. Arguing counsel were Renee Pietropaolo for the defendant and Jane Dattilo for the government.

A sad case with a Third Circuit connection

Stu Bykofsky has a column on this morning entitled, “Inmate deserves to have courts keep their promises.” The column features Marcus Perez, an inmate who pled guilty in state court “because of bad information he was given by a judge, who urged Perez to take a plea bargain.” The judge who dispensed the incorrect information?

Judge Theodore McKee, then of Common Pleas Court, now chief judge of the U.S. Court of Appeals for the Third Circuit, said that when he told Perez he would be eligible for parole, “I was dead wrong.”

McKee told him “life” didn’t mean “life” and, “You will not die in prison.”

But the law recently had changed to “life means life,” and McKee made a grievous error.

By the time Perez learned that the judge screwed up, the case had passed from McKee’s authority, which meant that he couldn’t correct his own mistake. Perez has filed many appeals, each pigheadedly opposed – first by D.A. Lynne Abraham, and now by Seth Williams.
Sad case.
Disclosure: Perez’s court-appointed counsel is Michael Wiseman, an accomplished Third Circuit advocate who was my supervisor when he was head of the Philadelphia federal defender’s capital habeas unit and I was an assistant federal defender.

Judge Krause named by Scotusblog as 1 of 5 federal-appellate candidates for Supreme Court

Back on February 16 I posted about whether any Third Circuit judges were plausible candidates to be nominated to fill Justice Scalia’s seat on the Supreme Court. I wrote:

Let’s start with their ages. Greenaway was born in 1957, Vanaskie in 1953, Shwartz in 1961, Krause in 1968, Restrepo in 1959. Advantage Krause.

How about circuit confirmation votes? Greenway: 84-0, Vanaskie: 77-20, Shwartz 64-34, Krause 93-0, and Restrepo 82-6. Advantage Greenaway and Krause.

Demographics? Greenaway is an African American man, Vanaskie is a white man, Shwartz and Krause are white women, and Restrepo is a Hispanic man. Disadvantage Vanaskie, after that it’s hard to say.

* * *

I’ve described Judge Krause here before as “a rising star” whose initial published work has been “Supreme-Court-shortlist caliber.” My Magic 8-Ball says she’s the Third Circuit judge likeliest to get the call from a Democratic president. But my hunch is that’s a better bet for the next opening than for this one.

Today, Tom Goldstein wrote a post on Scotusblog entitled, “Five potential nominees from the federal appellate bench.” He wrote:

It is easy to identify the candidates who (i) serve on a federal court of appeals; and (ii) received unanimous Republican support in the confirmation process.  By culling based on a few other criteria – such as academic background, age, and length of experience on the appellate bench – we identified this list of five candidates, in alphabetical order:

* * *

Hon. Cheryl Krause, who serves on the Third Circuit.  Previously, she was a federal prosecutor.  She was a law clerk to two Republican appointees.  She attended Stanford Law School.

Goldstein says he will publish profiles of Judge Krause and the other four in the coming days.

(My thanks to the intrepid reader who alerted me so quickly to the Scotusblog post.)

The effort to smear Judge Barry as a radical extremist is still alive, and still wrong

Third Circuit Judge Maryanne Trump Barry is a moderate-conservative Republican centrist. After a decade as a federal prosecutor, she was nominated to the district court by President Reagan and confirmed by voice vote by a Republican-controlled Senate. Chief Justice Rehnquist appointed her to chair a Judicial Conference committee. The New York Times reports that she was nominated to the Third Circuit by President Clinton thus:

In 1999, Mr. Clinton was having a hard time getting his appointments through the Senate, and he asked Senator Robert G. Torricelli of New Jersey to find a set of judges who could be confirmed. To balance out the Democratic appointments, Mr. Torricelli chose Ms. Barry.

Again she was confirmed, again by a Republican-controlled Senate, again by voice vote.

But recently Judge Barry has become a talking point in the Republican presidential campaign debate, and conservative partisans brand her a radical extremist. It is a preposterous claim.

Republican Presidential candidate Ted Cruz has been trying for a while now to score a point against fellow candidate Donald Trump by Judge Barry, who is Trump’s sister. I’ve discussed it here and here, and I was quoted about it on here. Trump revived the controversy at Thursday’s Republican debate, noting that Cruz has been criticizing Barry and suggesting “maybe we should get a little bit of an apology from Ted.” (Trump mangled the facts, claiming that Barry had been criticized for “signing a certain bill” and asserting that Justice Samuel Alito “signed that bill.” In reality, Cruz criticized Barry for her opinion in the New Jersey abortion-case Planned Parenthood v. Farmer, and Alito concurred in the judgment.)

After the debate, prominent conservative commentators have rushed to defend join the attack on Judge Barry. First, Ramesh Ponnuro (who describes Cruz as “[a]n old friend of mine”) wrote on that “Judge Barry wrote an expansive opinion attacking and sneering at” New Jersey’s abortion-ban law, “and laying out an argument that would logically justify a constitutional right to infanticide.”

Then, former Akin Gump partner Paul Mirengoff wrote on that Judge Barry’s “position on abortion” in the New Jersey opinion was “odious.” “Cruz is right about Trump’s sister,” he claimed: “The woman Trump holds out as a model jurist is obscenely pro-abortion.” (Other similar right-wing Barry-bashing here, here, and here. [Update: and here, by him.])

Here is the reality about Judge Barry’s opinion in Farmer:

  • Judge Barry’s opinion for the court was joined in full by Judge Leonard Garth, a Nixon appointee whom I’ve never before heard accused of being an obscenely pro-abortion radical extremist.
  • Then-Judge Alito concurred in the judgment, agreeing that Supreme Court precedent compelled the result Judge Barry reached.
  • New Jersey’s attorney general declined to defend the law. The district judge judge reached the same result the Third Circuit did. The Third Circuit did not grant rehearing en banc, and the Supreme Court did not grant certiorari.
  • Ponnuro accuses Judge Barry of writing an “expansive” opinion, but in fact her opinion was limited. The plaintiffs argued that the NJ law violated equal protection and did not serve a legitimate state interest, but the opinion declined to reach either question. The district court held that the law created an undue burden on women’s constitutional rights by offering no health exception and an inadequate life-of-the-mother exception; the opinion passed up the chance to endorse either of these points, too. The opinion even expressly refused to address whether a clearly drafted prohibition of intact-dilation-and-extraction abortion would be constitutional. (How Ponnuro squares this express reservation with his claim that Judge Barry’s opinion “would logically justify a constitutional right to infanticide,” I have no idea.)
  • Judge Barry’s opinion began by frankly acknowledging “deeply held convictions by men and women of good will, convictions which we recognize and respect.” It stated, “It is not for us to decide who is right and who is  wrong as a matter of conviction or philosophy.”  It acknowledged that “there are unquestionably numerous ethical, philosophical, and moral issues surrounding abortion.”
  • The opinion went into graphic detail describing how the fetus dies during various abortion procedures, repeatedly noting that during the procedure the fetus may still have a heartbeat. It said in passing, “whatever one may think of abortion in general and ‘partial birth abortion’ in particular.” It speculated that the purpose of the NJ law was “to dramatize to the public the ugly nature of abortions of all types.” By contrast, the most favorable thing the opinion says about abortions is that Supreme Court precedent establishes a constitutional right to have one. I don’t see a single pro-abortion or pro-choice sentence in the opinion.
  • It is impossible for me to tell from the opinion whether Judge Barry would vote for a late-term abortion ban if she were a legislator. To the extent the opinion offers any clues, I’d guess that Legislator Barry would vote in favor of such a ban if it were competently drafted.

Judge Barry’s Farmer opinion is aggressively limited. It treats pro-life policy views with respect but decides the appeal based on logic and precedent, not policy. The opinion is competent, professional, and utterly mainstream. If this opinion makes Judge Barry a radical extremist, then so is 98 percent of the federal judiciary.

One final point.

Back in 1998, when Judge Barry was still a district judge, she presided over Greenhut v. Hand, a case in which a pro-life volunteer at a pregnancy-services center sued a defendant who had threatened her. The pro-life volunteer sued under the Freedom of Access to Clinic Entrances Act, a law passed in response to growing violence against abortion providers. The opinion noted that this case was the first time that FACE was invoked to penalize threats against a pro-life volunteer. The defendant argued that FACE did not apply because the act protected only persons providing reproductive health services and the pro-life volunteer wasn’t.

Judge Barry emphatically rejected the defendant’s arguments and granted summary judgment in favor of the pro-life protester. The opinion has not one hint of disapproval of the plaintiff’s pro-life views, not a whisper of approval for the defendant’s pro-choice views.

Obscenely pro-abortion? Radical extremist? Nonsense.

Two new opinions, with a rare Third Circuit benchslap

Mammaro v. NJ Division of Child Protection — civil rights — reversal — Ambro

New Jersey child services took away a mother’s one-and-a-half-year-old child for “a few days” because the mother twice tested positive for marijuana and moved out of approved housing. After the mother got her infant back, she filed a civil rights suit against child services and the caseworkers involved. The district court dismissed the suit against child services but refused to dismiss a substantive due process claim against the caseworkers. The caseworkers appealed, and today the Third Circuit reversed, holding that the caseworkers were protected by qualified immunity. The court assumed a consensus of persuasive authority that temporary removal of a child could violate due process, but found no consensus that removing the infant was an “unconstitutional interference with the parent-child relationship” because no prior case so held.

Practitioners should take special note of a footnote in the opinion, inserted apparently at Chief Judge McKee’s request:

A hair follicle test [of the mother] in November 2011 showed a very small amount of marijuana and cocaine, but the amount found was too low to meet the standard for a positive test.

Although Chief Judge McKee joins this opinion in its entirety, he notes his concern with the misleading nature of the Division’s brief on this point. The brief stated that Mammaro “submitted to a hair follicle drug test, which was positive for cocaine and marijuana.” However, at oral argument, after counsel for Mammaro represented that she never tested positive for cocaine, the Division’s counsel (who was involved in drafting the brief) was given an opportunity to clarify whether the hair follicle test for cocaine was positive, as represented in the brief, or negative. Counsel first responded that the result was “inconclusive,” but then
conceded that Mammaro’s hair follicle analysis was “negative” for cocaine.

* * * given the thresholds employed by the lab and the Division’s own guidelines, Mammaro’s test results were negative.

Chief Judge McKee believes that it is (at best) unfortunate and (at most) disingenuous and intentionally misleading for the Division to have stated, without qualification or explanation, that Mammaro was using cocaine. The failure to explain or qualify such an assertion is particularly egregious here where the focus of our inquiry is the reasonableness of the challenged interference with Mammaro’s custody of her child, and the alleged bad faith of the Division. Moreover, the misstatement in the brief should not be minimized merely because the removal of Mammaro’s child preceded the disputed cocaine analysis. By its own statement, the Division provided the misleading lab results for “background information.” Since the information was, by the Division’s own admission, irrelevant to its decision to interfere with
Mammaro’s parental rights, Chief Judge McKee is concerned that it may have been offered in an attempt to “poison the [analytical] well.”

Not how any appellate attorney wants to be remembered in a published circuit opinion.

Joining Ambro were McKee and Hardiman. Arguing counsel were Michael Walters of the state attorney general for the child services defendants and Kenneth Rosellini for the mother.

Cunningham v. M&T Bank — civil — affirmance — Ambro

The Third Circuit upheld a district court’s ruling that a class-action lawsuit was barred by the statute of limitations and not subject to equitable tolling based on any fraudulent concealment.

Joining Ambro were McKee and Scirica. The case was decided without argument.

New opinion — partial dismissal in insurance-coverage appeal

Ramara Inc. v. Westfield Insurance — civil / insurance — dismissal in part — Greenberg

The Third Circuit held that a district court’s order that an insurer must defend a suit was immediately appealable, and applied Pennsylvania law to affirm the district court’s order.

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

NCAA en banc argument: only little surprises

I had the pleasure of attending this morning’s en banc oral argument in NCAA v. Governor of NJ. The ceremonial courtroom was packed, and even two of the judges who had recused were in the audience. Circuit advocacy (and circuit judging) is not often a big-crowds gig, so it was an entertaining spectacle.

Judge Ambro (presiding due to Chief Judge McKee’s recusal) opened with a heartfelt tribute to Justice Scalia, saying it was “so true” that he was “transformative” and describing him as “perhaps the greatest influential jurist of my generation.”

Here are a few things that surprised me:

  • Judge Barry missed participating by video feed due to technical difficulties, but at the last minute she was able to join in by audio;
  • Theodore Olson appeared to be reading his opening, word for word. Not just the opening sentence, but the whole first minute or two. (And later he declined to answer a judge’s direct question about what the recent troubles of daily-fantasy-sports betting meant for his position, saying he didn’t want to get into that.)
  • Paul Clement, who gave a virtuoso argument, leaned pretty heavily on legislative history. Heresy!

On a more substantive note, I was surprised that some of the court’s more conservative judges were the source of some of Olson’s toughest questions. I figured the court’s right was New Jersey’s best hope for getting towards the seven votes it needed to win, since a vote for New Jersey could be seen as a vote for state power and for business. But Judge Fisher was plainly dubious of Olson’s position, and Judges Hardiman and Jordan peppered him with tough questions, too.

But for all the little surprises, the bottom-line sense I got from today’s argument was not surprising. I came in doubting that New Jersey could find seven votes, and nothing that transpired during the argument reduced my doubt. We won’t know the result until the opinion(s) are issued, but Clement, the sports leagues, and the government have to feel pretty good about today.

Even more reason to question that Judge Barry is a radical extremist

Ted Cruz recently attacked Donald Trump by calling his sister, Third Circuit Judge Maryanne Trump Barry, a “radical pro-abortion extremist” for voting to strike down a New Jersey late-term abortion ban. (I discussed it here.) Cruz left out the fact that Nixon appointee Leonard Garth joined her opinion and W. Bush appointee Samuel Alito joined the result.

Now, David Eldridge further undermines the Barry-is-a-radical-extremist smear with this post at, pointing out that Barry testified before the Senate Judiciary Committee in effusive support of Alito’s Supreme Court nomination:

Appearing on Capitol Hill before the Senate Judiciary Committee, Barry praised Samuel Alito, then a colleague on the United States Court of Appeals for the Third Circuit, as “a man of remarkable intellectual gifts.”

Alito, she told senators, “set a standard of excellence that was contagious, his commitment to doing the right thing, never playing fast and loose with the record, never taking a short cut, his emphasis on first-rate work, his fundamental decency.”

“You have heard the most glowing things said about Sam as a colleague on our court. I embrace every glowing statement,” she testified. “Let me just conclude with this … He is a man with impeccable legal credentials. He is a fair-minded man, a modest man, a humble man, and he reveres the rule of law.”

Maybe Barry supported Alito only because she figured he was a radical pro-abortion extremist, too?

Any Third Circuit short-listers for the Supreme Court?

The national media is filled with stories speculating about President Obama’s likeliest potential nominees for the Supreme Court vacancy created by Justice Scalia’s death. No Third Circuit judges have been mentioned in any of the stories I’ve seen. Does the Third Circuit have any plausible candidates? Here’s a quick look.

Obama has picked five Third Circuit judges: Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. (The three active Third Circuit judges appointed by Bill Clinton are all over 60, probably too old to get a serious look now.)

Let’s start with their ages. Greenaway was born in 1957, Vanaskie in 1953, Shwartz in 1961, Krause in 1968, Restrepo in 1959. Advantage Krause.

How about circuit confirmation votes? Greenway: 84-0, Vanaskie: 77-20, Shwartz 64-34, Krause 93-0, and Restrepo 82-6. Advantage Greenaway and Krause.

Demographics? Greenaway is an African American man, Vanaskie is a white man, Shwartz and Krause are white women, and Restrepo is a Hispanic man. Disadvantage Vanaskie, after that it’s hard to say.

Ability? Look, I practice in this court, so I’m not saying anything stupid here. All five are widely respected, and whether the administration sees any or all as Supreme Court-caliber legal minds is anyone’s guess. And ideology matters but no one knows how yet, so I’ll punt there, too.

I’ve described Judge Krause here before as “a rising star” whose initial published work has been “Supreme-Court-shortlist caliber.” My Magic 8-Ball says she’s the Third Circuit judge likeliest to get the call from a Democratic president. But my hunch is that’s a better bet for the next opening than for this one.

Obama moving ahead with circuit nominations — a Third Circuit nominee on the horizon?

Last month, I predicted:

My guess, not based on any insider information, is that the cause of the nomination delay is that Toomey is dragging out nomination negotiations with Obama as long as he possibly can. At some point, Obama would give up hope and submit a doomed nomination, but until then Toomey may have little to gain from signing off of any nominee.

President Obama still hasn’t named a nominee for the Rendell seat, but new reporting by Charlie Savage in yesterday’s New York Times suggests that the dynamic I described has begun to play out for other circuit openings:

At the time, there were eight vacancies on the appeals courts, but Mr. Obama had submitted the name of only one nominee: Luis Felipe Restrepo, a District Court judge in Philadelphia. He had Republican backing, and the Senate confirmed him last month.

Mr. Obama submitted no other names, according to administration officials, because the vacancies were in states that had at least one Republican senator, and those senators had refused to preapprove any nominee.

Traditionally, preapproval is part of the nomination process. The Senate Judiciary Committee generally does not schedule a hearing for a nominee without the consent of both senators from the state in which the seat is based, regardless of party.

Starting last month, Mr. Obama quietly broke with that tradition. He has now submitted nominees to fill four of those longstanding vacancies, even though none had preapproval from Republican senators. In an interview last week, Neil Eggleston, Mr. Obama’s White House counsel, said the president had moved forward because he hoped Republican senators would permit at least some to go through.

“The calendar was running out, and it was time to get moving,” Mr. Eggleston said. “At some point the process just has to get started.”

The article paints a mixed picture on Obama’s success filling circuit openings:

If he makes no more appointments to the regional appeals courts, Mr. Obama will leave at least 12 vacancies to his successor, counting seats that recently came open or are expected to by the end of the year. By that measure, Mr. Obama’s appeals court record would be about the same as Mr. Bush’s and better than that of Mr. Clinton — who also had trouble with a Republican Senate and left more than two dozen seats open.

But by other measures, Mr. Obama is on track to be a historical anomaly. He has appointed just 48 judges to the regional appeals courts so far, while Mr. Bush and Mr. Clinton each appointed more than 60.

The gap between Mr. Obama’s numbers and his recent predecessors’ occurred in the final two years of their presidencies. Mr. Obama appears likely to appoint the fewest such judges during that period of any president since Congress created the courts of appeal in 1891, with one exception: President Grover Cleveland, who named none in the two years before he left office in 1897.

But Cleveland had no vacancies to fill.

Judge Barry is back in the campaign headlines

Donald Trump put his sister, Third Circuit Judge Maryanne Trump Barry, squarely in the national media spotlight last year when he told interviewers she’d be a phenomenal Supreme Court justice.

Now that quote has Judge Barry back in the headlines, but this time it’s neither as positive nor as honest. Brent Johnson at (among others) reports that fellow Republican candidate Ted Cruz today said:

Now, it’s good to stand with your sister. But Donald’s sister was a Bill Clinton-appointed federal appellate judge who is a radical pro-abortion extremist,” said Cruz, a Princeton University graduate. “Indeed, she wrote an opinion striking down restrictions on partial birth abortion, saying that restricting partial birth abortion was irrational. Even among liberal judges, that position is extreme, and Donald said, his extreme, abortion-supporting sister would make a terrific Supreme Court justice.

Judge Barry a radical extremist? Cruz isn’t the first Republican to float that one, but it’s still pure applesauce.

The case Cruz is bashing Barry for is Planned Parenthood of Central NJ v. Farmer, in which Judge Barry wrote the opinion striking down New Jersey’s late-term abortion ban.

Just one question. If Barry’s ruling striking down the New Jersey law was extreme even among liberal judges, what does Cruz make of the fact that the Third Circuit judge who concurred in the judgment in that case, opining that Supreme Court precedent “compels” the result Barry reached, was a fellow named Alito?


A few thoughts on Wednesday’s two en banc arguments

The Third Circuit will be hearing en banc oral argument in two cases on Wednesday: NCAA v. Governor (the sports betting case pitting Paul Clement against Ted Olson), and Chavez v. Dole Food (a civil-jurisdiction issue arising in the context of a suit by plantation workers alleging knowing exposure to toxic pesticides).

A couple interesting facts:

  • The first argument is at 9:30 in the Maris courtroom on the 19th floor, but the second argument at 11 a.m. is in the ceremonial courtroom on the 1st floor. Why the big move between arguments? Beats me.
  • Recently confirmed Judge Restrepo will sit for both cases, as expected.
  • Both cases had panel dissents by Judge Fuentes. Tangle with the pride of Toms River at your peril!

Anyway, the sports-betting case in particular is getting a lot more media attention than the typical Third Circuit appeal. I was even interviewed today by a reporter for ESPN, certainly a first for me. [Update: here’s the ESPN story quoting me.]

One of the questions I was asked today was how often en banc rehearing results in a different outcome from the original panel ruling. (Of course not all Third Circuit en banc cases involve any prior panel ruling, as I’ve discussed here. But the last six CA3 en banc grants have.)

Since Chief Judge McKee became chief, the Third Circuit has decided eight en banc cases in which a panel had issued an opinion. (There was a panel opinion in all four pending en banc cases, too.) Of those eight, the en banc opinion came out the same way as the panel opinion twice (25%); the en banc court effectively reversed the prior panel six times (75%). So that’s a small sample size, but it’s some evidence for the not-surprising conclusion that en banc rehearing en banc is bad news for the panel winner.

NCAA is a case where the panel dissenter was an active judge (Fuentes) and the panel majority judges (Rendell, Barry) are both now senior. (And in Chavez the panel dissenter was active (Fuentes) and the panel author (Nygaard) was senior.) That made me wonder whether active judges fare better in Third Circuit en banc cases. Is it common for active-judge dissenters to become en banc authors and senior-judge panel authors to become en banc dissenters?

Short answer: not really. Of the eight prior-panel cases, only one (Singer Management) fit that pattern, and in fact there were three (Lewis, Katzin, and Flores-Mejia) where the opposite happened. So active-vs-senior hasn’t mattered much in recent Third Circuit en banc case outcomes.

I’m looking forward to Wednesday’s arguments. If my schedule lets me attend in person, I hope to meet some readers and fellow Third Circuit lawyers.

New opinion — illegal to fire employee who complained about executive’s giant salary

MCPc v. NLRB — labor — vacate in part and remand — Krause

A company employee named Galanter was having lunch with a few co-workers, and they discussed how shorthanded and busy they were. Galanter commented that the company could have hired several workers with the $400,000 a year it was paying a new executive. Galanter was canned 8 days later; the company alleged that Galanter lied when confronted about the disclosure. NLRB counsel issued a complaint alleging that the company illegally fired Galanter for complaining about working conditions. The NLRB ruled for the employee and the company appealed.

Today, the Third Circuit reversed in part. It ruled that the employee’s lunchtime disclosure was protected activity as concerted conduct, but remanded for reconsideration of whether that protected activity was the reason for the firing. The opinion is a tour de force.

Joining Krause were Fuentes and Fisher. Arguing counsel were Dean Falavolito of Margolis Edelstein for the employer and Gregory Lauro for the NLRB.

“Obama’s New Appellate Court Nominees Should Be Blocked”

Still no nominee for Judge Rendell’s seat, but in the past week President Obama has named four circuit court nominees (two 7th Circuit, one 8th, and one 11th).

Conservative commentators are calling for Republicans in the Senate to block any federal appellate nominations until the next presidency. The title of this post is from Paul Mirengoff’s post at the influential conservative legal blog PowerLine, in which he begins:

In his final year in office, President Obama remains in a position to continue his project of transforming America. He can do so through Executive Orders, for example.

Republicans, though, are in a position to close the book on one front — the transformation of the federal judiciary. In November 2014, the GOP took control of the Senate. Consequently, no federal judge can be confirmed without Republican complicity. Indeed, as a practical matter, no federal judge can be confirmed unless Senate Judiciary Committee Chairman Charles Grassley allows it.

Until now, unfortunately, Grassley’s inclination has been to pat himself on back for confirming liberal nominees to important courts. I wrote about this here, in connection with the confirmation of Luis Felipe Restrepo, an aggressive left-winger, to the U.S. Court of Appeals for the Third Circuit.

It’s time for Grassley to stop surrendering.

Mirengoff closes by urging his readers to call Senator Grassley’s office to urge him to block Obama’s new appellate nominees.

Mirengoff links to a post by Ed Whelan at National Review which says, “If Senate Republicans are not to indulge in a game of unilateral surrender, these nominations ought to be dead on arrival.” Whelan argues that Democrats only confirmed two appellate nominees in 2008 and both were the product of bipartisan compromise, but “there is no evidence that suggests that Obama or Senate Democrats negotiated in advance with Senate Republicans over any of the recent nominees.” (He’s not talking about Restrepo, whose nomination clearly was negotiated with Republicans.)

I posted earlier that I’m skeptical that any nominee for Judge Rendell’s seat will be confirmed in 2016, and commentary like this does nothing to diminish my skepticism.

Recent Third Circuit Clerk: “Nudging Courts to Issue Decisions Can Pay Off”

You may recall the Third Circuit recent case where top appellate lawyer Roy Englert wrote to the Third Circuit urging them to issue a ruling a pending case. I wrote about the letter here (“sending the court a post-argument hurry-up letter strikes me as a risky move”) and the opinion here.

Albert Lichy has just written this piece in Daily Business Review, headlined, “Nudging Courts to Issue Decisions Can Pay Off.” Lichy was a 2014-15 clerk for Judge Ambro, so his insight is worth paying attention to.

Lichy writes that “the blink response” is that a lawyer can’t tell a judge to pick up the pace, but that the recent case shows how they can:

Is there a lesson to learn? I think so. The first is not to be afraid to nudge a court to action. If it’s been months since your case was argued and the court’s delay is causing serious damage to your client’s business, make the court aware. Or if a substantial amount of time has passed since oral argument and your appeal involved a straightforward issue, send a subtle reminder to the court—cases do fall through the cracks. (Just last August the Seventh Circuit apologized to the parties in one case on remand from the U.S. Supreme Court for putting their papers “in the wrong stack and forgetting” about them.)

If all else fails, take a page from the Taj’s playbook and get a popular blog to discuss your case. It’s no secret judges and law clerks use blogs as a news source. As in any context, however, a little tact goes a long way.

Certainly worth a read.

New opinion — divided Third Circuit panel upholds black lung statute-of-limitations ruling

Eighty Four Mining v. Director, Office of Workers’ Compensation Progs. — agency — affirmance — Vanaskie

After a board of the Labor Department awarded black lung benefits to a coal miner, the mining company argued that miner’s claim was untimely because a state board’s denial of state benefits should not restart the federal clock. The Third Circuit today disagreed with the company, denied the petition for review, and affirmed.

Joining Vanaskie was Rendell; Nygaard dissented. Arguing counsel were Norman Coliane of Thompson Calkins for the mining company, Heath Long of Pawlowski Bilonick for the miner, and Helen Cox for the government.

“Regardless of whether removing the President, ordering a census, and reapportioning Congressional districts are within our jurisdiction, Petitioner has not shown a clear and indisputable right to such drastic relief.”

The sentence that forms the headline of this post is from yesterday’s non-precedential Third Circuit opinion in In re: Natural Born Citizen Party National Committee. Normally I don’t post about unpublished opinions, but it’s Friday and I’m making an exception.

The court rejected a “difficult to understand” mandamus petition from a fringe political party (website highlight: “Become a Pre-1933 USA Citizen agent of the Public US Citizen Debtor Trust Transmitting Utility ‘Non-taxpayer’ for a fee of $1500”) and one of its two declared candidates for U.S. president (there are 1,544 registered presidential candidates this year, including Porcupines R. Spikey, Jr.). The mandamus petition evidently sought a stay of the 2016 election, appointment of special masters to conduct a census, and reapportionment of Congressional districts.

The court warned said candidate — re-warned, actually, since this wasn’t the first such mandamus petition he filed — that “frivolous and vexatious litigation may lead to sanctions.”

New opinions — qui tam and Sarbanes-Oxley

United States ex rel. Moore & Co. v. Majestic Blue Fisheries — qui tam — reversal — Rendell

The False Claims Act enables someone to sue someone else for defrauding the government — FCA suits are commonly called qui tam suits. (For example, there’s a big qui tam suit against disgraced cyclist Lance Armstrong related to his doping while sponsored by the US Postal Service.) This case involves a law firm that brought a qui tam suit alleging that foreign nationals fraudulently obtained fishing licenses reserved for citizens. The district court granted summary judgment for the defendants, but today the Third Circuit reversed. The main issue was whether the law firm’s suit survived the FCA’s public disclosure bar, and the court held that it did because it alleged information that was independent of and materially added to publicly disclosed information about the alleged fraud.

Joining Rendell were Vanaskie and Nygaard. Arguing counsel were Clay Naughton for the law firm and Robert Salcido of Akin Gump for the appellees.


Wiest v. Tyco Electronics Corp. — civil — affirmance — Greenberg

The Third Circuit today affirmed a district court’s ruling granting summary judgment against a former employee in an action for retaliation brought under the Sarbanes-Oxley Act.

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

The Third Circuit library is hiring an archivist

The Third Circuit announced this morning that it is hiring an archivist to organize the court’s important collection of historical materials. According to the job announcement, the new archivist’s “primary responsibilities include processing archival collections and digitizing historical court photographs.” It will be a two-year, half-time position.

This is wonderful news. Ever since the Third Circuit Historical Society lapsed into inactivity, there’s been a real need for someone to preserve and organize the circuit’s trove to make it accessible to scholars and the public. This new position will address that need; hopefully this will help jump-start the historical society back to life, too.

New opinion — Third Circuit lacks mandamus jurisdiction in patent cases

In re: Dr. Lakshmi Arunachalam — patent / mandamus — dismissal — per curiam

The Federal Circuit has exclusive jurisdiction over appeals in patent infringement actions. Today, the Third Circuit held that the Federal Circuit also has exclusive jurisdiction over mandamus petitions arising from such actions. Accordingly, the court dismissed for lack of jurisdiction the mandamus petition of a pro se litigant who claimed that the district court should have recused due to a financial interest in the case, and the court directed the clerk to transfer it to the Federal Circuit.

The panel was Fisher, Jordan, and Vanaskie. The case was decided without argument.

Guess which circuit holds the fewest oral arguments. (Hint: it’s the same one that issues the fewest published opinions.)

In the 12 months before September 30, 2014, the Third Circuit decided 2,402 cases. It heard oral argument in 238 of them, or 9.9% of its cases. The other 90.1% it decided without oral argument.

So what does that mean?

Well, the Third Circuit heard the fewest oral arguments in 2014 of any circuit. (The circuit-comparison stats all exclude the Federal Circuit.) The D.C. Circuit, which decided about a fifth as many cases, held more oral arguments. The Eighth Circuit, which decided a similar-but-smaller number of cases versus the Third Circuit, held 169 more oral arguments, or over 40% more. Even the Fourth Circuit, the only circuit that held oral argument in a (barely) lower percentage of its cases, held over 100 more arguments. When it comes to number of cases decided on the merits, the Third Circuit ranks 8th out of 12 circuits, middle-of-the-pack. Overall, the Third Circuit granted oral argument half as often as its sister circuits.

What about 2013? Same picture, even a little more extreme. In the year ending in 2013, the Third Circuit decided 2,715 cases and heard oral argument in 225, or 8.3%. Again, fewer oral arguments than any other circuit, and this time the Third Circuit had the lowest argument rate of any circuit.

[For 2015, the AOC hasn’t done the math yet. The raw numbers they’ve released for the 12 months before June 30, 2015 — the most recent data available — show the Third Circuit still holding the fewest oral arguments of any circuit, with an argument rate of 10.7%.]

Whoa, right? But there’s more.

Let’s look at how the Third Circuit’s argument numbers have changed over time. This graph shows the number of oral arguments the court has heard each of the past 17 years:


And here is the percentage of the court’s cases in which it heard argument over the same period:


That second graph shows that the plunge in oral arguments isn’t caused by a drop in the total number of cases. (To the contrary, the court is deciding on the merits 30% more cases per year compared to the late 90s.)

So it’s clear what we’re looking at isn’t any statistical blip: this is a robust trend, a historically significant transformation of the functioning of the court. The Third Circuit hears half as many oral arguments as it did a decade and half ago. A Third Circuit litigant around 2000 was three times more likely to get oral argument than she is today.


Now, I’m not the first one to notice this trend. Howard Bashman wrote this column in the Legal Intelligencer — after a year (2011) when the court heard 82 more arguments than it did in 2014 — arguing that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.” He concluded:

It may require at least a bit more work from the Third Circuit’s judges to slightly relax their current extreme reluctance to grant oral argument, but I cannot help but think that the extra work would yield great benefits in the form of stronger rulings and more satisfied litigants who will know that, win or lose, their arguments have been heard.

As a CA3 practitioner myself, there have been a few times I’ve been disappointed when the Third Circuit decided a case of mine without argument, cases where I believed I had raised substantial appellate issues. But, since I started my practice in 2010, the Third Circuit has heard oral argument in 30% of my cases. So I can’t complain, I’ve actually been fortunate.

But there’s still more to the story.

I’ve blogged here before about how the circuit’s rates for published opinions have dropped and are the lowest in the country. So, how do recent oral argument rates and publication rates compare? Take a look:



Both curves are down from 2009, cratered in 2013, and rebounded a bit in 2014.

Curiously, the circuit’s reversal-rate curve is similar, too:


Coincidence? Or are the similar-looking argument and publication graphs related?

Back in 2011, former Third Circuit Judge Timothy Lewis wrote (the emphasis is mine):

There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court’s business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate.

It’s natural to wonder if the plunging rates for argument and publication are related to the unconscionable delays in filling the seats vacated by Judges Sloviter and Scirica in 2013 — over a year before Judge Krause was commissioned, over 2.5 years before Judge Restrepo was. The court faces still a similar delay now, seven months and counting since Judge Rendell went senior, still waiting for a nominee.

As I noted above, the court is deciding 30% more merits cases now than it did in the late 90s — about 750 more per year — yet it hasn’t gotten a single new seat since 1990. When you take a busy court, jack up its caseload by 30%, add zero new judges, and drag your heels filling openings — well, at some point, as Judge Lewis said, there are consequences.

My hypothesis is that we’re looking at two consequences: fewer oral arguments and fewer published opinions. Now, these trends didn’t just appear in 2012 and they’re not limited to the Third Circuit. They could well be unrelated to caseloads and to each other. And the Third Circuit isn’t the only circuit struggling with vacancies. So I haven’t proven that hypothesis here.

But, if I am right, then the root of the problem here isn’t the court: it’s Congress.


[Notes: I’m grateful to top CA3 advocate Brett Sweitzer, among others, for raising my awareness of the oral argument drop at a recent forum of the Third Circuit Bar Association. The oral-argument data cited in this post are from AOC table B-10. The decided-cases data and the 6/30/2015 raw data come from B-1, reversal data come from B-5, and opinion-publishing data come from B-12.]

Restrepo’s first argument next week

Next Friday, brand-new Third Circuit Judge L. Felipe Restrepo will sit for the first time as a member of the court. He will sit on a panel with Judges Vanaskie and Shwartz for 3 arguments. This being the Third Circuit, it seems fitting that the first argument case on the docket that morning will be an asbestos-litigation appeal.

The court has a total of four panels sitting next week, and there’s not a single senior or visiting judge in the bunch.

New opinion — a legal error in arbitration is insufficient to upset its result

Whitehead v. Pullman Group — civil / arbitration — affirmance — Fuentes

How’s this for a lucid opening paragraph?

Singer-songwriters John Whitehead and Gene McFadden were “an integral part of the Philadelphia music
scene in the 1970s.” In 2002, appellant David Pullman
approached Whitehead and McFadden about purchasing their
song catalogue. The parties signed a contract but never
finalized the sale. Whitehead and McFadden passed away in
2004 and 2006, respectively, and Pullman became embroiled
in a series of disputes with their estates over ownership of the
song catalogue. The parties eventually agreed to arbitration.
Pullman, unhappy with the arbitral panel’s ruling, moved in
the District Court to vacate the arbitration award on the
ground that the panel had committed legal errors that made it
impossible for him to present a winning case. The District
Court denied Pullman’s motions, and Pullman now appeals.
Even if we were to agree with Pullman that the arbitrators
misapplied the law—and we do not—legal error alone is not a
sufficient basis to vacate the results of an arbitration.
Accordingly, we will affirm.

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

UPDATE: Nick Vadala of has the case backstory here.

Any hope for filling Third Circuit’s empty seat in 2016? I’m skeptical.

With Judge Restrepo finally on the Third Circuit, attention has turned to the Third Circuit’s other empty seat, the one created when Judge Rendell took senior status in July of last year. Even though Rendell announced her decision a year ago now, President Obama still has not nominated a replacement.

P.J. D’Annunzio had this article earlier this month in the Legal Intelligencer, headlined “Pa. US Courts Still Hampered by Vacancies,” reporting that the Philadelphia Bar Association plans to write to Senators Toomey and Casey “about the urgency of filling Rendell’s seat.” Recent letters to the editor, including this one by Glenn Sugameli of Judging the Environment and this one by Christine Stone of Why Courts Matter, have sounded the same note.

My guess, not based on any insider information, is that the cause of the nomination delay is that Toomey is dragging out nomination negotiations with Obama as long as he possibly can. At some point, Obama would give up hope and submit a doomed nomination, but until then Toomey may have little to gain from signing off of any nominee. Toomey took a political beating over the Restrepo nomination delay and I bet he prefers having the delay look like Obama’s fault instead of his.

While I certainly hope the Rendell seat is filled before Obama leaves office, I’ll be amazed if it is. Conservative activists are pushing hard to shut down confirmations already. Heck, they even wanted to block Restrepo. Last month I posted this informed commentator’s prediction that Restrepo will be the last Obama circuit judge confirmed. And Republicans will get a measure of credit for a deal to fill 4 other judicial spots by the end of February. I can’t persuade myself that Toomey will decide it’s good re-election-year politics to support any nominee for the Rendell seat.

One of the main talking points the liberal activists are using is that, back in 2008, Bush nominated Steven Agee for the Fourth Circuit in March and the Senate confirmed him in May. The Senate was Dem-controlled and one of Agee’s home-state senators was a Dem (and thus able to block the nomination). But I doubt the Republican Senate leadership today will find the Agee confirmation compelling precedent. There were 5 (!) openings on the Fourth Circuit at the time, and none of the other 4 Bush nominees made it through. If that’s the best example the Dems have, well, good luck.

I hope I’m wrong, but I predict that the too-long wait to get the Third Circuit to full strength will drag on at least another year.

New opinion — Conflict panel affirms in bankruptcy case

In re: Wettach — bankruptcy — affirmance — Sentelle

A Third Circuit panel of non-Third Circuit judges today affirmed a district court’s rulings in a bankruptcy case. The Third Circuit’s judges apparently all recused due to a peripheral financial interest in the case of one of them.  I previously posted about the case here and here. The appellant’s brief raised 10 issues, several related to constructive fraudulent transfer, but the court rejected them all.

Suppose, purely hypothetically, that the losing party believed that the panel opinion here contradicted prior CA3 precedent. When a conflict panel decides an appeal, en banc review is impossible, right? That’s an odd situation, but not as odd as constituting a conflict en banc panel I suppose.

Joining Sentellle (DC Cir) were Benton (CA8) and Gilman (CA6). Arguing counsel were James Cooney of Robert Lampl & Associates for the appellants and Neil Levin for the trustee.

Should judges recuse when their fellow judge has “a piece of the action?” — PA judges may be learning, but CA3 judges already knew

The Third Circuit issued a short little unpublished opinion in a bankruptcy appeal last week. The most interesting thing about it was that the panel was three judges from other circuits; I wrote about the case before oral argument, here. After that post, a couple intrepid readers helped me figure out that the apparent reason all the Third Circuit judges recused was that one of them had a peripheral financial stake in the outcome.

If the wisdom of the Third Circuit’s court-wide recusal were not clear before, it sure is clear now.

Today’s Philadelphia Inquirer features this story by Jessica Parks, about the controversy that’s erupted after one county judge refused to recuse himself from a case in which one of his fellow county judges had a massive financial interest. The Pennsylvania Superior Court recently split evenly over whether the judge’s failure to recuse was error. Even the lawyer who’s defending the trial judge’s ruling was quoted saying:

“The message was sent loud and clear to every lawyer and every judge in the state. Next time someone is in front of any court in Pennsylvania where one of the judges has a piece of the action on that case – no one’s going to ever do it again.”

“Next time.” The Third Circuit judges did the right thing this time. Reading about the Pennsylvania judiciary’s latest embarrassment, I bet they’re glad they did.

The 2015 judicial financial disclosure reports are out, and Chief Judge McKee dissents

Here is an interesting new article by Zoe Tillman in the National Law Journal about the wisdom of forcing federal judges to publicly reveal the banks where they hold accounts. It features Third Circuit Chief Judge Theodore McKee, whose 2015 report stated: “I see no reasoned or legitimate reason for requiring disclosure of where bank accounts are held,” and “As far as I am concerned, this is an invitation to identity theft and fraud and will not be corrected until someone is victimized by this mindless requirement!!”

Conflict-searchers and identity thieves can find the the 2015 reports here. (My 2014 post about the disclosure reports is here.)

The article reported that Chief Judge McKee did not expect his protest to change the status quo, but, channeling his inner legal blogger, “I feel better about doing something that I don’t believe in if I register my protest.”

New opinion — bankruptcy court can void an expired union contract

In re: Trump Entertainment Resorts — bankruptcy — affirmance — Roth

The Third Circuit today upheld a bankruptcy-court ruling voiding the continuing terms of a union’s expired collective-bargaining agreement in the Trump Taj Mahal’s Chapter 11 reorganization. The court summarized its reasoning thus:

Under the policies of bankruptcy law, it is preferable to preserve jobs through a rejection of a CBA, as opposed to losing the positions permanently by requiring the debtor to comply with the continuing obligations set out by the CBA. Moreover, it is essential that the Bankruptcy Court be afforded the opportunity to evaluate those conditions that can detrimentally affect the life of a debtor, whether such encumbrances attach by operation of contract or a complex statutory framework.

The appeal had received recent attention, on this blog and elsewhere, after counsel for the casino filed a letter on January 4 asking the court to hurry up and issue an opinion. How Appealing has links to early news coverage of today’s opinion.

Joining Roth were Shwartz and Scirica. Arguing counsel were Kathy Krieger for the union and Roy Englert for the casino.

New opinion — Third Circuit rejects Super Bowl ticket appeal based on standing

Finkelman v. NFL — civil / standing — affirm/dismiss — Fuentes

The NFL allegedly makes only 1% of Super Bowl tickets available to the public. New Jersey has a statute (apparently intended to prevent event-organizers from favoring insiders over the public) making it illegal to withhold from the public more than 5% of available seating for an event. Two plaintiffs — one who bought above-face-price scalped Super Bowl tickets, one who balked — sued the NFL in federal court, alleging that its Super Bowl ticket sales violated the NJ law. Today, the Third Circuit held that both plaintiffs lacked standing to argue that the NFL violated the statute.

I feel sure this opinion will be cited heavily by future standing opponents in the circuit. I won’t claim to have my brain fully wrapped around the standing issue here, but the notion that the guy who bought scalped tickets lacks standing — a position even the NFL didn’t advance — strikes me as a mighty tough sell.

Joining Fuentes were Smith and Barry. Arguing counsel were Bruce Nagel for the plaintiffs and Jonathan Pressment for the NFL.

Supreme Court rejects Third Circuit’s pro-prisoner filing-fee rule

This past April, the Third Circuit in Siluk v. Merwin sided with prisoners in a circuit split over how much inmate litigants had to pay each month to cover multiple filing fees. Interpreting the PLRA, the divided CA3 panel held that payments were capped at 20% of the inmate’s monthly income, meaning, for example, that an inmate who owed 5 filing fees would be docked 20% of his monthly income until each of the fees was paid sequentially. Other circuits had held that inmates could be billed 20% of their income for each suit they filed, simultaneously, meaning that the inmate who owed 5 filing fees could be docked his entire income each month. In June, the Supreme Court granted certiorari to resolve the circuit split, as I reported here.

This week a unanimous Supreme Court briskly rejected the pro-prisoner rule the Third Circuit (along with the Second and Fourth Circuits) had adopted. The case is Bruce v. Samuels, the USSC opinion is here.

Court explains how attorney active/inactive-status will work — important emails going out Friday [updated]

The Third Circuit yesterday posted this announcement on its website to give details on the procedure for the attorney-status framework that the court enacted as part of its revisions to the attorney-discipline rules last July. Under the new framework, any attorney who has not entered her appearance within the last five years (note that the five years runs from the date the attorney entered her appearance, not the date that the case was closed) will be moved to inactive status (and will be ineligible to practice in the Third Circuit until she successfully applies for reactivation) unless she affirmatively elects to remain on active status.

An email will go out on Friday from the court to those attorneys who are admitted to the Third Circuit bar who have not entered their appearance in the last five years. That email will contain a hyperlink that attorneys can use to elect their status.

Check the court’s announcement for all the details.

UPDATED: a careful reader points out that the clerk’s office phone number provided in the announcement is incorrect. The number should be (215) 597-2995.

Senate confirms Restrepo, finally

The Senate has confirmed L. Felipe Restrepo to the Third Circuit. He will fill a judgeship that has been vacant since Judge Scirica took senior status on July 1, 2013, 924 days ago.

UPDATE: the vote for confirmation was 82 to 6.

Recent Third Circuit judges received their commissions within a few days of their confirmation votes, so we should have a new Third Circuit judge by the end of the week, maybe tomorrow.

Third Circuit revives employment-discrimination suit

Connelly v. Lane Construction — employment discrimination — vacate & remand — Jordan

Sandra Connelly was a truck driver. According the suit she later filed, her male co-workers harrassed her, and her complaints about this harassment strained her work relationships. When the company then laid off drivers, she alleged, she was let go before less-senior male drivers, and when the company recalled laid-off drivers, the company brought back less-senior men but not her. She sued under title VII and state law, but the district court dismissed based its conclusion that she failed to plead a sufficiently plausible gender-discrimination claim. Today, the Third Circuit vacated that dismissal, holding that Connelly’s claims were sufficient to survive a motion to dismiss. The court reiterating that a complaint need not establish a prima facie case in order to survive dismissal, and that the test is whether the complaint is plausible on its face, a test that can be met “even if one believed it ‘unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.'”

Joining Jordan were Fisher and Chagares. Arguing counsel were Emily Town (formerly of Stember Cohn but now a WDPA clerk) for the employee, Samantha Clancy (formerly of Ogletree Deakins but now corporate counsel) for the appellant, and Christine Back for the EEOC as amicus appellant. (Neither Town nor Clancy are on their firms’ websites.)

Does nagging the court to issue an opinion work?

This interesting article last week by Cara Salvatore describes an unusual move by  prominent appellate lawyer Roy Englert in a pending Third Circuit appeal. The appeal involves a union’s challenge to part of an Atlantic City casino’s bankruptcy reorganization; Englert represents the casino. The appeal was argued on March 4 before Shwartz, Scirica, and Roth. Englert’s letter “request[s], in all respect, that a decision, one way or the other, be issued in the very near future.” It closes, “With respect, in the case of the [casino], we are now at a point that a decision is needed very soon” and requests “a decision as soon as practicable.”

My two cents: I see nothing wrong with a party explaining unusual time-urgency in its briefs or at oral argument, but sending the court a post-argument hurry-up letter strikes me as a risky move.

Stay tuned.

New opinion — an alphabet-soup Clean Air Act affirmance

Group Against Smog & Pollution v. Shenango Inc. — environmental — affirmance — Van Anterwerpen

A company runs a plant that’s subject to the NAAQS established by the EPA, requiring them to create a SIP, which was enacted by the ACHD, but the EPA and the DEP and the ACHD sued for violations of the SIP and then GASP did too. I think. Today the Third Circuit affirmed dismissal of the private suit against the polluter, holding that the private suit was barred by the diligent-prosecution bar of the Clean Air Act.

Van Antwerpen was joined by Fuentes and Shwartz. The case was decided without argument (“TCWDWA”).

New opinions — another blow against class arbitration, and a plain-error sentencing reversal

Chesapeake Appalachia v. Scout Petroleum — arbitration — affirmance– Cowen

Last year in Opalinski the Third Circuit held that the availability of class arbitration is an issue for courts to decide unless the parties’ arbitration agreement provides otherwise “clearly and unmistakeably.” Today, the court held that the parties’ arbitration agreement here, which incorporated rules promulgated by the American Arbitration Assoc., did not delegate the class arbitrability decision to the arbitrators with the requisite clarity, and therefore it affirmed the district court’s order vacating the arbitrator’s decision.

Joining Cowen were Shwartz and Krause. Arguing counsel were Robert Pratter of Cohen Placitella for the appellants and Daniel Donovan of Kirkland & Ellis for the appellee.

US v. Moreno — criminal sentencing — reversal in part — Fisher

Applying plain-error review, the Third Circuit today vacated a criminal defendant’s sentence because the defendant’s right of allocution was violated when the court permitted the prosecutor to vigorously cross-examine the defendant during his allocution. The court held that the error was plain even though “no previous cases have explicitly proscribed cross-examination during allocution,” because cross-examination was clearly contrary to the purpose of allocution. Interestingly, the opinion went on to say that, even if the error here were not plain, the court would still exercise its supervisory power to hold that defendants may not be cross-examined during allocution. The court also affirmed the defendant’s conviction (concluding it was clear a Confrontation Clause violated occurred when a witness read into the record law enforcement reports, but that the error was harmless) and rejected a challenge to imposition of a sentencing enhancement.

Joining Fisher were Chagares and Jordan. Arguing counsel were Brett Sweitzer of the federal defender for Moreno and Jane Datillo for the government.

New opinion — an ERISA loss for a religious hospital

Kaplan v. St. Peter’s Healthcare System — ERISA — affirmance — Ambro

A Catholic hospital was sued by one of its employees who alleged that the hospital violated ERISA by, among other things, under-funding its employees’ retirement plan by over $70 million. The hospital moved to dismiss the suit, claiming that as a church agency it qualified for a certain ERISA exemption. Yesterday the Third Circuit affirmed a district court ruling denying the hospital’s motion to dismiss, holding that, although the ERISA exemption applies to retirement plans established by a church and then maintained by a church agency, it does not apply to plans established by a church agency.

A phalanx of amici appeared on both sides and the opinion notes that a Seventh Circuit case involving the same issue is pending now, so I doubt this fight is over yet.

Joining Ambro were McKee and Hardiman. Arguing counsel were Jeffrey Greenbaum of Sills Cummis & Gross for the hospital and Karen Handorf of Cohen Milstein for the employee.

New opinion — employer win in age-discrimination suit

Willis v. UPMC Children’s Hospital — employment discrimination — affirmance — Van Antwerpen

After a hospital fired a 61 year-old nurse, the nurse sued under the Age Discrimination in Employment Act and a state statute. The district court granted the hospital’s summary judgment motion, and today the Third Circuit affirmed.

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

Brookings blogger thinks Restrepo will be Obama’s last circuit appointment

Russell Wheeler has this blog post at Brookings, entitled “No further Obama impact on the make-up of Courts of Appeals.”

Wheeler is a former deputy director of the Federal Judicial Center. The balanced and informative post begins:

The Senate is set to confirm U.S. District Judge L. Felipe Restrepo to the Third Circuit Court of Appeals on January 11th, 425 days after his nomination. Median days from nomination to confirmation of Obama’s 55 circuit appointees (counting Restrepo) is 229, compared to 219 for Bush’s 60 appointees and 139 for Clinton’s 65 appointees.

There will be little need to update these figures, because any 2016 circuit confirmations after Restrepo are unlikely. His confirmation will also mark the high point of Obama’s overall impact on the makeup of the courts of appeals.

Certainly reason for pessimism that Judge Rendell’s seat will be filled any time soon.

New opinion — qualified immunity for denial of treatment for condition that could lead to impotence

Michtavi v. Scism — prisoner civil rights – reversal — Rendell

A prisoner underwent surgery for a prostate issue. The prison surgery allegedly caused retrograde ejaculation, which, if untreated, could leave him impotent. Prescription treatment was available, but the prison refused it pursuant to a policy against treating sexual dysfunction. The prisoner filed suit, the prison administrators moved to dismiss based on qualified immunity, and the district court denied qualified immunity. Today, the Third Circuit reversed, concluding that there is no clearly established prisoner right to medical treatment for conditions that could lead to impotence.

Joining Rendell were Vanaskie and Sloviter. The case was decided without argument; the prisoner was pro se on appeal.

New opinion — rest-stop operator not a state actor

PRBA Corp. v. HMS Host Toll Roads, Inc. — civil — affirmance — Smith

The Third Circuit today held that a private company that operates service plazas on state highways was not a state actor for purposes of a suit under 42 USC 1983. The company had been sued by Bare Exposure (“Atlantic City’s #1 All Nude Gentleman’s Club”) for removing its brochures from service-plaza common areas. The court affirmed the district court’s grant of summary judgment because the state was directly involved in neither the brochure removal nor the day-to-day operations of the service plazas.

Joining Smith were Fuentes and Nygaard. Arguing counsel were Michael Daily for the strip club and Catherine Bledsoe for the service-plaza operators.

Senate finally schedules floor vote on Restrepo nomination

This past spring, Senator Pat Toomey was getting battered over the delay in scheduling a committee hearing on the Third Circuit nomination of Judge Luis Felipe Restrepo. In May, Toomey’s office responded in part by assuring the public that Toomey was “confident he will be confirmed by year’s end.”

Although Toomey did not say it at the time, it now appears that “by year’s end” meant that Toomey had already decided to let the nomination languish until year’s end. Thus in the months that followed, he ignored call after call after call after call to ask the Republican leadership for a confirmation vote.

Now, just as critics predicted, when earlier this week Toomey finally did ask for a confirmation vote, it was scheduled right away. The floor vote on Restrepo’s nomination is set for January 11, 2016.

I’m happy for Judge Restrepo that he’s getting a vote finally. And it’s great for the Third Circuit that one of its vacancies will (presumably) be filled. But I’ll never believe that it shouldn’t have all happened half a year sooner.



Major 2255 opinion reissued with minor changes

Back in September, the Third Circuit issued an opinion in US v. Doe that I described as “a glorious 50-page monument to the absurd complexity of habeas law.”

As if to underscore the point, the court today granted panel rehearing and issued a new opinion, now 51 pages. The outcome hasn’t changed, and the only differences I can spot are a new footnote 4 on page 14 and an additional government lawyer in the caption.

UPDATE: I also see some minor wording changes on pages 11 and 12, removing some ‘possible/possibility’ language.

The great published-opinion drought of 2015

The Third Circuit last issued a published opinion on November 25, two weeks ago today. The court has issued 34 non-published opinions since then. Two weeks is easily the longest the court has gone without publishing an opinion since I started this blog a year and a half ago.

Will today be the day the opinion drought finally ends?

New telecommunications opinion

AT&T v. Core Communications — civil / telecommunications — vacate & remand — Roth

You know who AT&T is. Core Communications is a specialized phone company whose customers are all internet service providers (ISPs). AT&T’s customers called Core’s customers. Core billed AT&T for the calls, AT&T refused to pay, Core filed a complaint with the state utility commission, and the utility commission ruled in Core’s favor. Finally AT&T sued in federal court, seeking an injunction to enjoin enforcement, arguing that the state utility commission violated federal law, and the district court granted summary judgment to AT&T. Today, the Third Circuit vacated and remanded with instructions to grant summary judgment in Core’s favor.

Joining Roth were Ambro and Scirica. Arguing counsel were Shaun Sparks for the utility commission, Christopher Van de Verge for Core, and Mayer Brown associate Christopher Comstock for AT&T.

New employment-law opinion

Babcock v. Butler County — employment / FLSA — affirmance — Sloviter

A divided Third Circuit panel today affirmed a district court ruling a dismissing without discovery a suit brought by prison guards alleging that their full meal time was work that should have counted towards overtime. The panel majority joined a circuit majority in adopting a predominant-benefit test to decide whether meals were work time under the Fair Labor Standards Act, and held that they were not even though the guards pled that they were required to be prepared to serve at a moment’s notice during meals.

Joining Sloviter was Fuentes; Greenaway dissented. Arguing counsel were Justin Swidler for the guards and Marie Jones for the county.

Orin Kerr weighs in on the Google Cookie opinion

Orin Kerr has posted this lengthy explanation and analysis at Volokh Conspiracy of the Third Circuit’s opinion in In re Google Inc. Cookie Placement Consumer Privacy Litig. (my prior post on the case is here). The Third Circuit opinion discussed at length Professor Kerr’s scholarship, and his take on the opinion is likely to be taken seriously, too.

Professor Kerr’s bottom-line assessment:

I think the opinion is correct. It’s somewhat easy for me to say that, as the court agreed with and quoted my earlier writing on this issue * * *. Seriously, though, this was the first thorough and careful treatment of a really hard and important issue. Good for the Third Circuit for delving into the details of it; I suspect the opinion will be very influential.



Pittsburgh’s federal courthouse to be renamed tomorrow for Judge Weis, “the nicest judge”

Tomorrow morning the Third Circuit will hold a special session to rename Pittsburgh’s federal courthouse for former Third Circuit Judge Joseph F. Weis Jr., this charming story by Brian Bowling reports. Judge Weis died last year at 91, the year after he retired — his obituary, which quotes Judge Hardiman, is here.

From the story:

He’s not the first federal judge to have his name on a courthouse, but Joseph F. Weis Jr. could be the nicest judge to receive the honor.

“He never lost his humility,” said Roslyn Litman, a charter member of the Academy of Trial Lawyers of Allegheny County.

* * *

Litman, a Downtown attorney, cited Weis’ work in helping found the academy and spending countless hours on its mission of improving relations between lawyers and judges in the Western District of Pennsylvania.

“He uniquely represents the spirit of cooperation between the bench and the bar … by the work he did with the academy and the bar association,” she said.

New opinion — Third Circuit expands temp-employee rights

Faush v. Tuesday Morning — employment discrimination — partial reversal — Fuentes

An African American employee of a temporary-employment agency was assigned to work at a store, and it went badly. Ultimately, the temp sued the store under Title VII and other statutes, alleging that he was the victim of racial discrimination. The district court (some guy named Restrepo) granted summary judgment against the temp because he was not the store’s employee. Today, the Third Circuit vacated in part, holding that jurors could find that the temp was the store’s employee under Title VII. The opinion acknowledged that its ruling “will pertain to a large number of temporary employment arrangements.”

Joining Fuentes were Fisher and Krause. Arguing counsel were Wayne Ely for the temp and Robert Luxen for the store.

Quality commentary on the panel-voting-paradox case

David Post wrote this very informative piece for Volokh Conspiracy about last week’s Hanover 321 ruling, entitled “Wild voting paradox case in the 3rd Circuit.”

Post writes:

It must happen a lot.  And it is, one would think, quite fundamental to how appellate courts go about their business.

* * *

You would think that the hundreds of appellate courts in this country would — long ago — have addressed this matter, and come up with a procedure or protocol that they would follow when performing this most basic of their functions.  Indeed, one might even say that a multi-member court can’t really go about its business of deciding cases until it first decides how it is going to decide — by outcome-voting or by issue-voting.

But in fact, there are only a handful of examples where courts publicly address their choice of voting procedure or their views on the proper means to resolve the Paradox.

* * *

So the issue is — finally! — joined; I’m not aware of another case that engages the issue as forthrightly, nor one that lays out the opposing positions as clearly.

Well worth reading in full.

Also of possible interest is this reddit thread on the case.


New prisoner-civil-rights opinion

Chavarriaga v. State of N.J. Dep’t of Corr. — civil rights — reversal in part — Greenberg

In this prisoner-civil-rights appeal, the Third Circuit partially reversed a district court ruling for the defendants. The plaintiff alleged that, in retaliation for an excessive-force suit she had filed, prison staff forced her to be naked in view of male guards, subjected her to a painful body cavity search, denied sanitary napkins and medication, and locked her for days in a cell with nothing to drink but the water in the toilet. The Third Circuit rejected the district court’s ruling that these acts were not serious enough to violate the Eighth Amendment. The court also reversed dismissal of related equal-protection and state-law claims. The court affirmed dismissal of her claims against prison supervisors, but remanded to give the plaintiff a chance to identify the prison staff responsible.

Joining Greenberg were Ambro and Fuentes. Arguing counsel were Noel Crowley for the prisoner and Daniel Vannella for the defendants.


Happy Birthday, Restrepo nomination!

Today’s New York Times features this editorial slamming Senate Republicans, and PA Senator Toomey in particular, for the delay in confirming Judge L. Felipe Restrepo. Judge Restrepo was originally nominated to the Third Circuit a year ago yesterday.

It’s a powerful editorial. It urges Senate Democrats to “make these inexcusable delays a national issue,” and it concludes:

With each day that passes without a vote on Judge Restrepo and other nominees, Republicans undermine the justice system, and the biggest victims are ordinary Americans who cannot count on fully functioning courts.

Also today, P.J. DAnnunzio has this story in the Legal Intelligencer, headlined, “One Year After Nomination, Restrepo Still Not Confirmed.” It quotes a law professor blaming Toomey for the delay: “Either he’s not pushing or he doesn’t know how to push.”

New opinion — a glorious panel-voting mess, plus a correction

Hanover 3201 Realty v. Village Supermarkets — antitrust — vacate in part — Fuentes

This is an antitrust case that arose out of a real-estate dispute between two supermarkets. The outcome of the appeal turns on two issues: standing and the merits. The three judges on the panel all disagreed on the issues and the outcome, and the result is simply appeals-nerdtastic.

Judge Ambro’s concurrence cogently explains:

This case presents what academic literature terms a “voting paradox.” On the one hand, two judges (Judge Greenberg and I) believe that the outcome should be that Hanover’s suit not proceed, though we do so for different reasons. However, one majority of this Court (Judges Fuentes and Greenberg) believes that Hanover has antitrust standing (I do not because I do not discern antitrust injury), while another majority (Judge Fuentes and I) believes that Hanover should survive Village’s motion to dismiss (assuming it has antitrust standing). The paradox is that, if I vote on the judgment of this case (affirm or reverse) based on my individual views, a majority of the Court will have ruled against the prevailing party on each relevant issue, meaning that our Court’s reasoning would not support its judgment. However, if I follow, despite my dissent, Judge Fuentes and Greenberg on the antitrust standing issue, my individual vote would be inconsistent with my view of who should win were I alone ruling.

He explains the choice is between “issue voting” and “outcome voting”:

Broadly speaking, the former occurs when a judge surveys the holding on each question of law presented; a majority vote on any given issue counts as a holding of the court, and the remaining judge is bound by it as if it occurred in a prior precedential case.5 The latter, and more common, scenario occurs when a judge votes on the result of a case (affirm, vacate, reverse, etc.) according to his or her view of the proper outcome and without regard to the views of the other judges on a panel. Even if a careful reading of the judges’ opinions in a case shows that a majority would rule for the losing party on each relevant issue, an outcome-vote, as that term is usually used in the relevant literature, results in a win for the party the majority of judges think should win regardless of reasoning.

Here, the panel chooses issue voting — here again the panel is divided, naturally. (On a first read, I tend to agree with Greenberg on the voting issue.) It is a glorious confusing mess, dear readers, and I guarantee you’ll love it.

The panel was Fuentes, Ambro, and Greenberg. Arguing counsel were double Tarheel Lindsey Taylor of Carella Byrne for the appellant and Anthony Argiropoulos of Epstein Becker for the appellees.


Also today, the court corrected the error in Tuesday’s Google Cookie case that I spotted, and also corrected a typo in September’s Tonnage Clause case.

Free Speech Coalition panel rehearing: keep fighting to the final bell

Back in September, the Third Circuit granted panel rehearing in Free Speech Coalition v. AG. The original panel ruling had upheld federal record-keeping and inspection requirements imposed on pornography producers. The panel had the option under FRAP 40(a)(4) to decide the case without reargument, but it granted reargument and scheduled it for December 9.

This panel rehearing grant offers an object lesson in the importance of battling to the end. Here, the appeal was originally argued in December 2014, and it was decided by the panel on May 14, 2015. Lesser lawyers would have surveyed the landscape on May 14, decided that rehearing was a lost cause, and moved on.

But over a month after the panel decision (still within the 45-day FRAP 40(a)(1)(C) window to seek rehearing), the Supreme Court issued a new decision that arguably cast doubt on the CA3 ruling. Counsel for the Coalition caught it and pounced. A week later, they filed a rehearing petition focused on the new Supreme Court ruling. The government opposed rehearing, but the panel (Rendell, Smith, Scirica) granted the motion and vacated its prior ruling.

Whatever the final result, counsel’s diligence has given them another shot to win their case. Impressive work.

As a postscript, I noticed a couple other interesting things while reviewing the docket to write this post. First, the court granted the parties’ motion to file a deferred appendix due to the large size of the record. That’s an option many lawyers would not consider and the Third Circuit’s LAR 30.4 discourages, but the court allowed it here so it’s worth keeping in mind.  Second, the court granted the parties’ motion to dispense with filing paper copies of the large joint appendix. Who knew?

New opinion — a major consumer privacy ruling (with an error) [Updated]

In re Google Inc. Cookie Placement Consumer Privacy Litig. — consumer class action — vacate in part — Fuentes

Google apparently found a clever way to defeat the Safari browser’s cookie-blocking feature, but sometimes clever is illegal. When a grad student discovered what Google had done, Google had to pay out almost $40 million to settle two government suits. Then consumer plaintiffs filed class-action suits alleging various federal- and state-law violations, which were consolidated by the Multi-District Litigation panel. The district court dismissed the suits under FRCP 12(b)(6), and the consumers appealed. Today, the Third Circuit largely affirmed the dismissals, but vacated the dismissal of certain state-law privacy claims.

Unfortunately, the opinion contains a big error. On page 16 of the slip opinion, in a road map preview, the opinion states, “we will vacate the dismissal of plaintiffs’ Wiretap Act claim.” But in fact the opinion “affirm[s] the District Court’s dismissal of the plaintiffs’ Wiretap Act claim” at p. 41. Oops.

(Aside: not the first time that’s ever happened.)

Joining Fuentes were Fisher and Krause. Arguing counsel were Jason Barnes for the consumers and Michael Rubin for Google.


UPDATE: the court has issued a correction.

Third Circuit cases included in new contraception-mandate cert grant

The Supreme Court today granted certiorari in 7 cases involving challenges to the Affordable Care Act’s contraception-mandate. Two of the cases are out of the Third Circuit; both were decided in the same opinion upholding the mandate.

Lyle Denniston has this early coverage of the new grant at Scotusblog. The Court indicated (Scotusblog link here) that it expects to hold the argument in March.

Watch out, Buzzfeed! A little Friday blog navel-gazing.

Hey neat. My blog software tracks the number of visitors to CA3Blog, and last month was a new record:


It’s been fun watching the number of people reading my blog lately taking off. (And, yes, I’m still cackling about Judge Ambro quoting the blog in an opinion.)

For the stat-heads, I’ll explain that the growth in readers is more obvious when you realize that, before September, the blog’s 3 biggest months were all caused by specific posts getting picked up by How Appealing (Erwin last October, en banc analysis plus Restrepo in March, and publication stats in April). Bashman has way-way-way more readers than I do, so when he links to a post of mine, my visits spike. But the last two months have been different — no How Appealing links, just a steady daily readership that’s more than double what it used to be.

So, welcome to the blog and thanks, fellow CA3 junkies.

New immigration opinion

Singh v. AG — immigration — denial — Jordan

A lawful permanent resident was convicted of counterfeiting and fraud and left the country. Then he returned (apparently he was allowed back in by mistake) and proceeded to live here without incident for 7 years. before being detained for removal by ICE. He challenged his removal, arguing he was eligible for cancellation of removal by statute. The BIA rejected his challenge, and today the Third Circuit denied his appeal.

The court held that the petitioner’s seven-year clock never started due to his prior moral-turpitude conviction plus the inclusion of that crime in his removal notice. The court deemed itself bound by prior circuit precedent which in turn gave Chevron deference to a BIA ruling that today’s court described as “not without flaws,” “formalistic,” and “odd,” noting, “It would behoove the BIA to provide some clarity in this area.” Slip op. at 13 n.7.

Not a very satisfying result, but sometimes that’s what faithful judging looks like.

Joining Jordan were Fisher and Chagares. Arguing counsel were Nicholas Mundy for the petitioner and Lindsay Murphy for the Government.

The mysterious Third Circuit panel of Benton, Sentelle, and Gilman

On November 23, an unusual Third Circuit panel will sit for oral argument: Judge William Benton from the Eighth Circuit, Senior Judge David Sentelle from the D.C. Circuit,* and Senior Judge Ronald Gilman from the Sixth Circuit.

Now, this sort of thing isn’t unheard-of. Sometimes all the judges on a court have to recuse, and, when that happens, outside judges pinch hit. For example, just a couple months ago three Third Circuit judges decided this published Fourth Circuit case.

But the mystery in this case is why?

Presumably all the Third Circuit judges recused, but the basis for those recusals eludes me. The cases before the panel (one argued, one submitted on the briefs) are bankruptcy appeals. Both debtors are members of the same Pittsburgh business-litigation law firm; the legal issues are similar, and the attorneys on appeal are the same. But, after scanning the dockets and scouring the internet and asking a few smart folks who know these things, I can’t find any hint of why either case would require any (let alone every) Third Circuit judge to recuse.

This isn’t an important mystery, I admit, but mysteries needn’t be important to be maddening. So if anyone thinks they have the solution, please comment here or email me.

* Judge Sentelle is (like me in this respect, and quite possibly in only this respect) a ‘double Heel,’ having earned both his undergraduate and law degrees from the University of North Carolina. When I was in law school I was encouraged to apply to clerk for him because he was a feeder judge who often hired top UNC law students. He reportedly named his daughter Reagan and was a protege of Jesse Helms: I didn’t apply.


Third Circuit’s judicial emergency, on and on

The Third Circuit’s judicial emergency is the second-oldest circuit emergency in the country. Only the Fifth Circuit has had an emergency for longer. Judge Scirica went senior in July of 2013, and his seat remains empty, well over two years later.

And no one has even been nominated yet for the Third Circuit’s second empty seat, fully four months after Judge Rendell went senior, and nine months after she announced that she would.

The upshot? Third Circuit IOP 3.1 provides:

Unless there is a judicial emergency, each panel includes either two active judges of this court or one active judge and one senior judge of this court.

But because of the judicial emergency, the Third Circuit’s active judges are now playing a radically smaller than normal role in shaping its precedent: four out of the last five CA3 published opinions were issued by panels with a single active judge and two senior judges.

The last Republican administration forcefully condemned delays in confirming its judges. It blasted the idea that it was okay “to leave these critical seats empty.” It said, “the American people deserve better” It said, “we need our government to be at full strength.”

We still do.

Arbitration, “de facto corporate immunity,” and the Third Circuit

The New York Times today ran the second part of a special report on arbitration, entitled “Arbitration, a ‘Privatization of the Justice System.'” (Part I, with a cameo by avid hunter and EDPA Judge Schiller, is here.)

The story ends on this depressing note:

After the ruling, Ms. Pierce’s lawyers wrote to Mr. Kalogredis’s arbitration firm questioning his qualifications. The firm, American Health Lawyers Association, responded that it was not its responsibility to verify the “abilities or competence” of its arbitrators.

This brings to mind the recent Third Circuit case of Goldman Sachs v. Athena Venture (here), where the court refused to vacate an arbitration even though one of arbitrators allegedly committed gross misconduct. The opinion criticized the arbitration authority for its “remarkable” failure to investigate the arbitrator once the first evidence of misconduct came to light, but the court confirmed the arbitration award anyway.

And the broader concerns about arbitration’s growth brings to mind the Third Circuit’s unfortunate 2014 ruling in Khazin v. TD Ameritrade (here). That decision has been described by one commentator as extending to whistleblower suits the “trend of courts conferring de facto corporate immunity.”

The Third Circuit is sure to continue to face challenges to the expanding use of arbitration, and it will be interesting to see whether the growing concern about its fairness is reflected in case outcomes.

Leahy urges Toomey to ask for Restrepo vote

Senator Patrick Leahy (D-Vt.) is keeping the heat on Senator Pat Toomey over the mind-boggling delay of the nomination of Judge L. Felipe Restrepo to the Third Circuit. In this statement earlier this week on federal judicial nominations, Leahy singled out the Restrepo delay — 348 days and counting, and compared it with the 183 days it took Democrats to confirm Bush nominee Judge Thomas Hardiman:

One of those vacancies is an emergency vacancy on the U.S. Court of Appeals for the Third Circuit in Pennsylvania.  Judge Luis Felipe Restrepo is nominated to fill the vacancy and he has strong bipartisan support from his home state Senators, Senator Toomey and Senator Casey.  At Judge Restrepo’s hearing, Senator Toomey stated that “there is no question [Judge Restrepo] is a very well qualified candidate to serve on the Third Circuit” and underscored the fact that he recommended that the President nominate Judge Restrepo.  Once confirmed, Judge Restrepo will be the first Hispanic judge from Pennsylvania to ever serve on this court and only the second Hispanic judge to serve on the Third Circuit.

There is absolutely no reason to delay a vote on Judge Restrepo’s confirmation, and yet his nomination has been pending on the floor for over three months.  Since he was first nominated, Judge Restrepo’s nomination has been pending for a staggering 348 days.  The National President for the Hispanic National Bar Association, which strongly supports Judge Restrepo’s nomination, wrote last week in the HuffingtonPost about the inexcusable delay in his confirmation.  I ask unanimous consent to include a copy of this article in the Record at the conclusion of my remarks.

Contrast Senate Republican’s treatment of Judge Restrepo with President Bush’s nominee to the Third Circuit, Judge Thomas Hardiman, who was nominated in the last two years of the Bush presidency.  Judge Hardiman was confirmed in nearly half the time Judge Restrepo has been waiting, taking only 183 days from nomination to his confirmation.  Furthermore, it took only 7 days for Judge Hardiman to receive a confirmation vote once he was reported out of the Senate Judiciary Committee.  Judge Restrepo has been pending on the floor for 109 days – 15 times longer than Judge Hardiman.  I hope the Republican Senator from Pennsylvania will implore his leadership to bring this highly qualified nominee up for a vote without further delay.

And two earlier pieces of note:

Huffpost post by the president of the Hispanic National Bar Association op-ed by a writer from Center for American Progress



Judge Krause discussing ethics Nov. 13

Third Circuit Judge Cheryl Ann Krause is leading an ethics discussion over lunch at a White Collar Practice Conference being put on by the Pennsylvania Criminal Defense Lawyers. The conference will be at the Union League in Philadelphia. The luncheon with Judge Krause will be on Friday, November 13 at 12:40.  Attendees get 1/2 hour of CLE credit, too.

Some notable Third Circuit practitioners also are presenting at the conference, including Ellen Brotman, Lawrence Lustberg, and Robert Zauzmer.

Details and registration here.

Free online legal research in the pipeline, and now

Erik Eckholm had this story in yesterday’s New York Times, headlined “Harvard Law Readies Trove of Decisions for Digital Age.” He wrote:

Now, in a digital-age sacrifice intended to serve grand intentions, the Harvard librarians are slicing off the spines of all but the rarest volumes and feeding some 40 million pages through a high-speed scanner. They are taking this once unthinkable step to create a complete, searchable database of American case law that will be offered free on the Internet, allowing instant retrieval of vital records that usually must be paid for.

Everything is expected to be available by 2017. Intriguing.

Reading this story got me thinking about the online legal research options available already. I have a decent LexisNexis subscription — it’s actually my practice’s single biggest annual cost. But I often use free options instead, mostly for uncompensated research like for this blog.

The main free-legal-research source I use is Google Scholar. If you’ve never used it, it’s worth a look. Overall, I find it good for finding specific cases but not much use for sophisticated legal research. When I created a big Excel spreadsheet of recent en banc cases while researching my en banc analysis post, it was quite handy to be able to include hyperlinks to the cases. The good: broad coverage of published and unpublished cases, easy to limit searches by date and court, and usually includes reporter pagination. The bad: the shephardizing functionality is weak, there’s no way to filter out non-precedential cases, and research is difficult beyond looking for specific words or phrases.

I also sometimes use Villanova Law’s official digital archive of Third Circuit opinions. The search engine is circa 2004 and all you get are the slip ops, but sometimes that’s all you need. (For published cases since I started this blog in April 2014, I just use the blog’s search box, top right, instead.)

I’m also aware of free-for-members options like Casemaker for Pa. Bar members and Fastcase for NJ Bar members, but I don’t use them myself.

Other views? Comments always welcome.

“Why Everyone Is Upset About the Third Circuit’s Recent TCPA Decisions …”

The title of this post is part of the headline of this provocative new post by Michael Daly of Drinker Biddle at the National Law Review. (The rest of the headline: ” — And a Few Reasons Why They Shouldn’t Be).  The TCPA is the Telephone Consumer Protection Act, background here.

Daly begins:

Defendants’ discussions of the Third Circuit’s recent decisions in Leyse v. Bank of America [link] and Dominguez v. Yahoo [non-precedential] have been all doom and gloom. Some of that disappointment is understandable, as the Third Circuit vacated notable defense rulings and expanded the scope of consumers who have statutory standing to file suit under the TCPA. On closer examination, however, both of the decisions offer not only a sword to plaintiffs but a shield to defendants.
And concludes:
But the most important implication of the ruling may be the one that the court does not discuss, namely its effect on class certification. Because class certification is the point at which claims can go from annoying to annihilating, any additional arrow in defendants’ quiver is a good thing. And the Leyse decision appears to be just that. For example, if the proper plaintiff in a TCPA case is the consumer who “answered the telephone when the robocall was received,” id. at 23, and answering parties only have constitutional and statutory standing if they not only have an “injury in fact” but also are a “regular user of the phone line who occupies the residence,” it follows that plaintiffs in a putative class action must prove that they can establish those things on a classwide basis. It is difficult to fathom how references to a calling log alone would ever be able to ascertain such people, let alone prove their claims on a classwide basis. So while the Leyse decision may make it easier for certain consumers to assert individual claims, it also appears to make it harder for consumers to certify a class action.
It’s an informative post. Daly says he’ll have a follow-up post further discussing what the Third Circuit cases mean for TCPA defendants.

New opinion

In re: Avandia Marketing — civil — affirmance — Roth

In an interlocutory appeal arising out of class action litigation over the diabetes drug Avandia, the Third Circuit today affirmed a district court ruling that the plaintiffs adequately alleged standing and proximate causation for their RICO claims against GlaxoSmithKline.

Joining Roth were Ambro and Scirica. Arguing counsel were  John Beisner of Skadden Arps for GSK and Samuel Issacharoff for the plaintiffs. The case was argued over 11 months ago.


New opinion — insurer wins coverage dispute

Hanover Insurance v. Urban Outfitters — insurance — affirmance — Roth

Starting in 2009, Urban Outfitters marketed clothes branded as Navajo (yeesh), and the Navajo Nation sued them for trademark infringement. Urban Outfitter’s insurer then sought a declaratory judgment that it was not on the hook, which the district court granted. Today, the Third Circuit affirmed, holding that a “prior publication” exclusion in the insurance contract applied.

Joining Roth were Ambro and Scirica. Arguing counsel were Ilan Rosenberg of Gordon & Rees for the outfitters and Andrew Gallogly of Margolis Epstein for the insurer.

Two potential Third Circuit cert grants — Georgiou and Erwin

I posted yesterday about the two Third Circuit cases (Merrill Lynch and Heffernan) the Supreme Court has already agreed to review this term.

Two other Third Circuit cases are listed on Scotusblog’s “petitions we’re watching” page, and both are highly interesting:

  • Georgiou v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about the cert petition here.
  • Erwin v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about Erwin many times (“my runaway winner for Worst Decision of 2014,” etc.), most recently here.  Erwin’s counsel of record for the cert petition is Supreme Court vet Kevin Russell of Goldstein & Russell. The government got three extensions before answering. Erwin replied that the government’s response “is as radical and unfounded as the decision itself.”

A defense practice tip:  unless and until cert is granted and Erwin vacated, plea counsel would be wise to note this passage from the government’s answer (cites omitted):

Defendants can reduce the likelihood
that they will face a remand for resentencing, if they
choose to appeal despite an appeal waiver, by negotiating
provisions in plea or cooperation agreements
limiting the circumstances in which the government
may seek such a remedy. For instance, since the
decision below, defendants in the Eastern District of
Pennsylvania have pleaded guilty pursuant to a plea
agreement providing that “the filing and pursuit of an
appeal constitutes a breach only if a court determines
that the appeal does not present an issue that a reasonable
judge may conclude is permitted by an exception
to the waiver stated in the preceding paragraph
or constitutes a ‘miscarriage of justice’ as that term is
defined in applicable law.”

Such provisions protect a defendant’s ability to assert
reasonable arguments that his claims on appeal
are not barred by the waiver or that the waiver should
not be enforced.

Also of note, the government argues that mere dismissal remains the Third Circuit’s “ordinary” remedy and that no subsequent Third Circuit opinion has imposed Erwin‘s resentencing penalty.

I’ll be on the edge of my seat for the Oct. 30 conference results.


Two Third Circuit cases headed to Supreme Court

So far this term the Supreme Court has granted certiorari to review two Third Circuit cases.

The first is Merrill Lynch v. Manning. The question presented, per Scotusblog:

Whether Section 27 of the Securities Exchange Act of 1934 provides federal jurisdiction over state-law claims seeking to establish liability based on violations of the Act or its regulations or seeking to enforce duties created by the Act or its regulations.

My summary of the Third Circuit opinion noted an explicit circuit split and that the loser had  high-powered counsel (headlined by former acting SG Walter Dellinger), so the cert grant is no big surprise. The case has been set for argument December 1.

The other one is Heffernan v. City of Paterson. Eugene Volokh was among the lawyers who signed the successful cert petition. The QP:

Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.

I called the Third Circuit opinion a head-scratcher and described its holding as “[w]acky.” Time will tell whether the Court agrees.

New opinion — bad faith a basis for dismissal of involuntary bankruptcy petition

In re: Forever Green — bankruptcy — affirmance — Fuentes

Creditors can initiate involuntary proceedings against a debtor. Today, the Third Circuit held that a creditor’s bad faith provides independent grounds for dismissing an involuntary petition. The court adopted a totality-of-the-circumstances for assessing bad faith and held that the district court’s bad-faith finding was not an abuse of discretion.

Joining Fuentes were Nygaard and Roth. Arguing counsel were Aris Karalis for the debtor and Steven Eisenberg for the creditors.

“Some people want our next president to be a woman. Some people want our next president to be a Trump. Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”

Third Circuit Judge Barry spoke earlier this week at a D.N.J. US Attorney’s event. David Lat — managing editor at Above the Law, author of Supreme Ambitions, and confessed creator of the spunkiest legal blog ever — was there and posted this report.

The title of this post is from US Attorney Paul Fishman’s introduction of Barry; here is Lat’s account:

Judge Barry, the older sister of real estate magnate turned presidential candidate Donald Trump, is one of my favorite judicial divas. Last night, however, she was not as diva-licious or controversial as I was expecting. For example, she made no allusions to her little brother’s polarizing presidential bid. (But Paul Fishman did in introducing her: “Some people want our next president to be a woman. Some people want our next president to be a Trump. Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”)

In her remarks, Judge Barry emphasized themes of public service and humility. She spoke about how nervous she was when she first started work as an assistant U.S. attorney, confessing that when asked to write her first appellate brief, “I didn’t know what an appellate brief was!” At her first oral argument, during the defense counsel’s eloquent presentation, she panicked and wrote a note to her supervisor sitting next to her: “What do I say?” He advised her to get up, introduce herself, and argue that the evidence was overwhelming. When she did that, Judge John Gibbons responded by saying, “Frankly, counselor, I am underwhelmed.” It was not her finest hour.

But with hard work, and the help of a great mentor — chief of appeals John Barry, whom she later married — she got better over time. She served as chief of appeals herself, and then as first assistant U.S. attorney, before her appointment to the federal bench.

Oh, and some guy named Alito spoke, too.

En banc procedure in the Third Circuit, redux [updated]

[UPDATE: After reading my post, Legal Sports Report has pulled their article while they review.]

The influential sports-law blog Legal Sports Report is following NCAA and has a lengthy and interesting post today about the en banc process, but the post is wrong on a few points. My original post yesterday on Third Circuit en banc procedures is here.

The Legal Sports Report post claims, “We do not know yet which judges will be on the en banc panel,” explaining:

Generally, recusal decisions are not known until the matter is set for argument, and sometimes not until the day of the argument.

Some have speculated that, because the court’s order granting rehearing en banc named only nine of the active judges as having voted on the en banc petition (judges listed as “Present”), the other three judges who were not named are recused. This speculation is unwarranted.

There were no recusals noted in the court’s order (typically reflected as “Judge Smith took no part in this decision.”). The absence of the three judges (Chief Judge McDonald [oops: he means McKee] and Judges Chagares and Schwartz [Shwartz, actually]) is most likely a reflection of a quirk in the court’s rules.

Petitions for rehearing en banc are circulated to all active judges. The judges wishing to grant rehearing must affirmatively notify the clerk. Judges wishing to deny rehearing, however, may either affirmatively notify the clerk or simply make no response at all; either way, their vote counts as a “no” because rehearing en banc requires a majority of active judges, not a majority of active judges who vote.

So, although one or more of the three active judges not named in the order may have recused themselves, the more likely explanation is that they simply did not vote on the petition for rehearing but will still sit on the en banc panel.

This is wrong. The fact that McKee, Chagares, and Shwartz did not sign the order granting rehearing en banc in NCAA means they will not participate in the rehearing because they have recused themselves, not that they “simply did not vote.” The docket for each en banc case is explicit about this, listing the judges who signed the order granting rehearing en banc with the label “Coram.”

Don’t believe me? Look at Langbord, the gold-coins en banc argued earlier this week. Greenaway is not listed on the on order granting rehearing, and he did not participate in the argument. The last en banc with a recusal before that was Al-Sharif. Chagares is not on the order granting rehearing, and he did not participate in the argument.

(Also, the “sometimes not until the day of the argument” statement is wrong too, as Third Circuit practitioners well know.)

Given that error, all of this is wrong, too:

Bottom line, assuming no recusals, we can expect the en banc panel to have 14 or 15 judges—the 12 active judges plus Senior Judges Rendell and Barry, and possibly Judge Restrepo if he is confirmed prior to argument. Thus, New Jersey will need to find eight votes in order to prevail (a tie vote would leave the district court decision in force as the final decision, but  a tie is highly unlikely—in case of a tie, one judge would likely switch sides and join a narrow decision in order to provide finality to the issue).

These missteps aside, it’s an intelligent post with some plausible head-counting, and I recommend it.

UPDATE: One other thing. I said Legal Sports Report’s head-counting was plausible, but that doesn’t mean I think it’s right. The post reasonably predicts that in NCAA the more liberal judges will side with Congress and more conservative judges with the state. But, in predicting which judges will fall into which camp, the post hypothesizes that the liberals are the judges nominated by Dem presidents and the conservatives are the ones nominated by Republicans. In a lot of circuits that would be give you a reasonably accurate guesstimate, but not here. As I’ve shown in detail here,, nominating party does not match up very well with vote ideology in the court’s recent en banc cases.




Good analysis of this week’s epic NYPD civil-rights reversal

I’ve long been a fan of Bruce Greenberg‘s New Jersey Appellate Law blog, and this week Bruce posted an insightful piece on the Third Circuit’s landmark civil-rights reversal in Hassan v. City of New York.

The entire post is worth reading, but what stood out to me was his description of Judge Ambro’s opinion as ” one of the most important decisions that the Third Circuit has made in some time,” and his prediction that it “will be long remembered.”

For some perspective on the case from the inside, here’s a sharp case timeline posted by the Center for Constitutional Rights, plaintiffs’ arguing counsel. And here’s a post by the Brennan Center for Justice, an amicus in the appeal, quoting one of the lawyers to say that Hassan “is on the right side of history.”

New opinion — deciding what “renewal” means

Indian Harbor v. F&M Equipment — contract — vacate & remand — Roth

The Third Circuit today vacated a summary-judgment grant in an insurance contract dispute, holding that, for a contract to be considered a renewal, it must contain the same or nearly the same terms as the original.

Joining Roth were Ambro and Fuentes. Arguing counsel were appellate lawyer Thomas Peterson of Morgan Lewis for the appellant and Joel Hopkins of Saul Ewing for the appellee.

Third Circuit en banc procedure — the basics and beyond

There was lots of national news coverage of yesterday’s en banc rehearing grant in the New Jersey sports-betting case, and just about every story had an error or two. The Washington Post story originally said 10 to 12 judges would participate, then changed it to “at least 12,” and now it says “possibly 12 or more.” But it’s hard to blame reporters for being confused about en banc procedures — even experienced circuit practitioners can get stumped.

So, let’s first hit the basics:

What is en banc rehearing? Federal appeals courts almost always decide cases using three-judge panels. But in very rare instances, the court decides cases en banc. As I’ve noted, in recent years the Third Circuit has done so in roughly 1 out of every 1000 cases it decides. En banc means the entire court decides the case, but figuring out exactly what ‘the entire court’ means can get tricky. So …

Which judges participate in an en banc rehearing? (“Participate” means to vote on which side wins the case (affirm or reverse), not on whether to grant rehearing in the first place.) It’s math:

  • All of the active Third Circuit judges (right now there are 12; senior judges are not active judges)
  • Minus active judges who recuse (in NCAA 3 active judges are not participating)
  • Plus any senior Third Circuit judges who (a) sat on the original panel and (b) elected to participate in the en banc (in NCAA 2 senior judges are participating)

Senior Third Circuit judges who did not sit on the panel are not eligible to participate in the en banc, period. (Several other circuits allow this.) Visiting judges (judges who are not Third Circuit judges) are not eligible to participate in en banc rehearing, period, even if they did sit on the panel, IOP 9.5.3.

If rehearing en banc has been granted, how can you tell which judges are participating? How can you tell if active judges recused, or if senior judges on the panel opted in? The order granting rehearing en banc. It gives a list of judges, and that identifies the judges who are participating in the en banc rehearing of that case as of that date. (After this, subtractions would occur only if a judge leaves the court or belatedly recuses; additions would occur only if a judge joins the court before en banc oral argument).

Which judges get a vote on whether to grant en banc rehearing in the first place? It’s the same as who gets to participate except that no senior judges get to vote, even if they sat on the panel.


Okay, so much for the basics. Now, let’s look at some other potential sources of confusion. First, some issues about the vote on whether to grant rehearing:

What if there is a tie about whether to grant rehearing en banc? It takes a majority to grant rehearing, so a tie means rehearing en banc is denied. That in turn means a three-judge panel decides the appeal, so, if there already is a panel opinion, it remains in force.

Is en banc rehearing ever granted before there is a panel ruling? Yes. The court can grant rehearing en banc any time it wants, and it doesn’t have to wait for a party to ask. In cases where en banc rehearing is granted, it is not unusual in recent years for the Third Circuit to do so before the panel issues any opinion.

Which majority is required to grant rehearing en banc — all active judges, or only participating active judges? If judges recuse, does that reduce the number of votes needed to grant rehearing? Yes. 3d Cir. LAR 35.3 says, “For purposes of determining the majority number necessary to grant a petition for rehearing [see 28 USC 46(d)], all circuit judges currently in regular active service who are not disqualified will be counted.” (IOP 9.5.3 is to the same effect.) That means you only need a majority of non-disqualified judges. (But be aware that a very authoritative secondary source cites R. 35.3 to mean that the Third Circuit will not grant rehearing en banc unless a majority of active judges are not disqualified).

And here are some issues for cases where rehearing en banc has been granted:

If en banc rehearing is granted, what happens to the panel decision? It is vacated when rehearing is granted, so it’s like it never existed. En banc opinions often do not discuss prior panel opinions.

What if there is a tie by the en banc court about whether to affirm or reverse?  An en banc tie leaves the district court’s ruling in place. It does not reinstate the panel opinion. It’s like the appeal never happened.

If a judge takes senior status while the en banc case is pending, does s/he still get a vote? Yes. If a judge voted on whether to grant rehearing en banc, that judge gets to participate in the entire rehearing even if s/he goes senior.

If a new judge joins the court while en banc rehearing is pending, does the judge get a vote? If this situation is addressed by the rules, I can’t find it, which is odd. This is a timely question, since it is very likely that Judge Restrepo will join the Court before either Chavez or NCAA are submitted, and possible he’ll be confirmed before Dennis or Langbord are decided (they were argued yesterday). I’ll update this answer if I’m able to find out more. Any commenter insight?

UPDATE: At least since 2010, new CA3 judges always participate in en banc cases if they are commissioned before the en banc oral argument (like Shwartz in Rojas and Caraballo-Rodriguez), but never if they are commissioned after oral argument (like Krause in Katzin and Flores-Mejia, like Shwartz in Quinn and Morrow, and like Vanaskie and Greenaway in Rigas and Puleo). So it’s a good bet that Restrepo will participate in Chavez (set for argument in February) and NCAA.

If all this makes your head spin, just be glad we’re not wading back into the recent thorny questions about how to tell the difference between an en banc plurality vs. a majority and whether it matters.


New opinion — a consumer procedural win, plus a new en banc grant

Leyse v. Bank of America — civil consumer — reversal — Fuentes

A consumer sued Bank of America, alleging that robo-calls used to market credit cards violated the Telephone Consumer Protection Act. (Who knew? A law bars any person from initiating any telephone call to residential phone using a prerecorded voice without prior consent or an exemption.) The district court dismissed, holding that the plaintiff lacked statutory standing because the call was meant for his roommate. Today, the Third Circuit reversed, holding that residents who receive the calls fall within the statute’s zone of interests.

Joining Fuentes were Sloviter and Roth. Arguing counsel were Todd Bank (whose website bills him as “The ‘Annoyance’ Lawyer”) for the consumer and former Asst. to the Solicitor General Joseph Palmore of Morrison & Foerster for the bank.


Also today, the Court granted en banc rehearing in NCAA v. Governor of NJ (vacated panel opinion here, my summary here). Senior-judge panel-members Rendell and Barry both will participate. [EDIT: Also of note, McKee, Chagares, and Shwartz are not participating]

Good coverage of the rehearing petition (quoting me — lucky for me he left out the part where I predicted rehearing would be denied!) by Zachary Zagger on is here.

An en banc argument pitting Paul Clement against Ted Olson? Gonna be a big day at the Jim Byrne.

New opinion — Court revives major post-9/11 civil rights suit

Hassan v. City of New York — civil rights — reversal — Ambro

Here’s how today’s opinion begins (cites and parentheticals omitted):

Plaintiffs appeal the dismissal of their civil-rights suit
against the City of New York. They claim to be
targets of a wide-ranging surveillance program that the New
York City Police Department began in the
wake of the September 11, 2001 terrorist attacks. Plaintiffs allege that the Program is based on the
false and stigmatizing premise that Muslim religious identity
“is a permissible proxy for criminality, and that Muslim
individuals, businesses, and institutions can therefore be
subject to pervasive surveillance not visited upon individuals,
businesses, and institutions of any other religious faith or the
public at large.” They bring this lawsuit “to affirm the principle
that individuals may not be singled out for intrusive
investigation and pervasive surveillance that cause them
continuing harm simply because they profess a certain

In its narrowest form, this appeal raises two questions:
Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in
federal court to vindicate their religious-liberty and equalprotection
rights? If so, taking Plaintiffs’ non-conclusory
allegations as true, have they stated valid claims under the
First and Fourteenth Amendments to our Constitution? Both
of these questions, which we answer yes, seem
straightforward enough. Lurking beneath the surface,
however, are questions about equality, religious liberty, the
role of courts in safeguarding our Constitution, and the
protection of our civil liberties and rights equally during
wartime and in peace.

And the conclusion:

The allegations in Plaintiffs’ Complaint tell a story in
which there is standing to complain and which present
constitutional concerns that must be addressed and, if true,
redressed. Our job is judicial. We “can apply only law, and must abide by the Constitution, or [we] cease to be civil
courts and become instruments of [police] policy.”
Korematsu, 323 U.S. at 247 (Jackson, J., dissenting).
We believe that statement of Justice Jackson to be on
the right side of history, and for a majority of us in quiet
times it remains so . . . until the next time there is the fear of a
few who cannot be sorted out easily from the many. Even
when we narrow the many to a class or group, that
narrowing—here to those affiliated with a major worldwide
religion—is not near enough under our Constitution. “[T]o
infer that examples of individual disloyalty prove group
disloyalty and justify discriminatory action against the entire
group is to deny that under our system of law individual guilt
is the sole basis for deprivation of rights.” Id. at 240
(Murphy, J., dissenting).
What occurs here in one guise is not new. We have
been down similar roads before. Jewish-Americans during
the Red Scare, African-Americans during the Civil Rights
Movement, and Japanese-Americans during World War II are
examples that readily spring to mind. We are left to wonder
why we cannot see with foresight what we see so clearly with
hindsight—that “[l]oyalty is a matter of the heart and mind[,]
not race, creed, or color.” Ex parte Mitsuye Endo, 323 U.S.
283, 302 (1944).
We reverse and remand for further proceedings
consistent with this opinion.

Obviously a sweeping and important opinion. I’m looking forward to reading it with care, but I’ve got a Third Circuit opening brief due today so I’ll have to wait.

Joining Ambro were Fuentes and Roth; Roth issued a short concurrence. Arguing counsel were Baher Azmy of the Center for Constitutional Rights for the plaintiffs and Peter Farrell for the city,

New opinion — Remand in a “Kafkaesque” commitment case

US v. Foy — civil commitment / jurisdiction — remand — Greenberg

The Third Circuit usually posts new published opinions on its website around 12:25 p.m., but occasionally it posts them late in the day, and it did so today. It’s an odd, complicated, and disturbing case and I’m not sure I can do it justice now, but here’s the gist.

Way back in 2003, Joaquin Foy was charged with a crime, but prior to trial he was found incompetent and the charges were dropped but he was federally committed. By 2009 doctors concluded it was safe to release him but he has continued to be detained because he won’t  promise to take his meds if released! Foy contends that continuing to hold him violates federal law, resulting in a tangle of litigation in 3 different federal courts. Relevant to today’s appeal, Foy filed a pro se motion to vacate judgment under Rule 60 in EDPA, the district court denied it, and in 2011 the Third Circuit appointed counsel and ordered briefing. Today, 4 years later but without oral argument, a divided panel vacated the district court’s denial and remanded for the district court to decide whether to transfer or dismiss it.

Joining Greenberg was Greenaway. Krause dissented in part, describing the case as “nothing short of Kafkaesque and cries out to be heard by some court.” The case was decided without argument.

More criticism of the Restrepo-confirmation delay

The Los Angeles Times has this story today (headline: “Republican Senate accused of ‘slow walking’ Obama’s judicial nominees”) that features the delay in confirming Judge Restrepo to the Third Circuit.

Yesterday, Paul Gordon of People for the American Way posted this informative analysis of the current delays in federal judicial confirmations, also featuring Restrepo. One telling passage (emphasis in original):

Failing to confirm judges is not at all the norm even when the Senate and the White House are held by different parties.  A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms.  A week after those elections, Senator Patrick Leahy – who was about to become chairman of the Judiciary Committee – criticized Republicans for blocking votes on more than a dozen of Bush’s qualified nominees.  Partisanship took a back seat to responsible governing.

So in 2007, Leahy and new Majority Leader Harry Reid worked together to make sure the Judiciary Committee and full Senate fulfilled its constitutional responsibilities.  During those two years, the Senate vetted and confirmed 68 of Bush’s circuit and district court nominees.  In fact, the Democratic Senate had already confirmed 29 of Bush’s judges by this same point in the year (October 1 of 2007), a number that will increase to 33 over the weekend.  In stark contrast, the McConnell Senate has so far confirmed only six Obama judges. No matter how you look at it, 33 ≠ 6.

It’s becoming increasingly clear that, when Senator Toomey’s office said way back in May that he was confident Restrepo would be confirmed “by year’s end,” Toomey knew already the Third Circuit would suffer from this inexplicable delay.

New opinions — Rule 58 in the ECF age, and a Tonnage Clause case

Witasick v. Minnesota Mutual — civil — affirmed — Nygaard

Published Third Circuit opinions involving pro se litigants are fairly rare. Pro se civil litigants? Quite rare. Pro se civil litigants with felony records who are allowed to give oral argument?* New to me.

Now, if the pro se party won the case,that would be rarest of all, but it wasn’t to be. He did pick up some style points on a procedural issue, though.

Attorney Kevin Witasick had insurance coverage. After a coverage dispute, the parties settled and Witasick signed a covenant not to sue. At the same time, Witasick was prosecuted and convicted of fraud and related charges, and an insurer’s employee testified against him. Witasick then initiated the current case by suing the insurance companies. The district court dismissed the suit based on the settlement agreement, and today the Third Circuit affirmed.

Although the merits were a slam-dunk, there is an interesting procedural wrinkle that federal practitioners should note.

The court held that Witasick’s notice of appeal was timely, even though it was filed far more than 30 days after the district-court opinion dismissing his claims, because the district court did not set out the dismissal in a separate document, per FRCivP 58. While there was an ECF docket entry stating that the case terminated, and the court today agreed that ECF docket entries could satisfy Rule 58, the docket entry here did not because it did not give the basis for termination (and maybe because it was a mere clerical notation, although the opinion is less clear here). The court said that text orders usually would satisfy Rule 58, while utility events and minute entries cannot because they are not orders and are not signed by a judge. While that part looks like dicta, this is the first case I’ve seen grappling with how Rule 58 applies in the age of ECF.

Joining Nygaard are Fuentes and Greenaway. Arguing counsel were Kevin Witasick for himself and Jacqueline Herring for the insurers.

* He was allowed to do oral argument, but then he didn’t show. I should know — I argued the case that was supposed to be up second that morning, but the panel had us go first in case he arrived late.


Maher Terminals v. Port Authority of NY & NJ — Tonnage Clause — affirmed — Fisher

Maybe I overslept the day we covered the Tonnage Clause in con law. If you’re as sadly uninformed as I, the Tonnage Clause of the US Constitution (article I, section 10, clause 3) bars states from “lay[ing] any Duty of Tonnage” without Congress’s say-so.

Today, a divided Third Circuit panel held that a marine terminal operator challenging its rent cannot state a claim under the Tonnage Clause because said clause’s zone of interests is limited to injuries to a vessel as a vehicle of commerce. To its great credit, the majority opinion smoothly uses both “unmoor” and “[a]nchoring,” without going overboard with nautical whimsy.

Joining Fisher were Shwartz in full and Jordan in part. Dissenting in part, Jordan disagreed that the plaintiff failed to state a Tonnage Act claim. Might be a plausible case for cert. Arguing counsel were former Coast Guard captain Lawrence Kiern of Winston & Strawn for the appellant and Peter Isakoff of Weil Gotshal for the appellees.

New opinions — a criminal-sentencing reversal and a close look at stays pending appeal

US v. Nagle — criminal — reversal — Fisher

Two co-owners of a construction business were convicted of fraud and other charges. Apparently they were non-minority contractors who collaborated with a minority contractor; the minority business would bid on contracts and then give the defendants all the work. Both defendants challenged the sentencing court’s loss calculation, and today the Third Circuit vacated their sentences and reversed. The court held that the proper loss amount was not the face value of the work contracts: the fair market value of the services provided by the defendants had to be subtracted when calculating the loss. The court also rejected the government’s argument that the 10-level departures the defendants received rendered the loss-calculation error harmless.

Joining Fisher were Roth and Hardiman in part. Hardiman briefly concurred in the judgment in part. Arguing counsel were Ellen Brotman of Griesing Law for one defendant, William Kent for the other, and Bruce Bandler and Jenny Ellickson for the government.


In re: Revel AC — procedure, bankruptcy — reversal — Ambro

The Third Circuit today explained its prior-issued ruling reversing a district court’s denial of a request for a stay pending appeal. The case arises out of the Revel AC casino bankruptcy. In his majority opinion, Judge Ambro began, “We seldom focus on how to balance the four factors that determine whether to grant a stay pending appeal despite the practical and legal importance of those procedural standstills. So we take this opportunity to do just that.” (Entertaining mid-stringcite footnote: “Yes, we realize this is the same Circuit Court in the same year. Read on and realize that we are not immune from internal tensions in our opinions.”)

Joining Ambro was Krause; Shwartz dissented. Both opinions are strong. Arguing counsel were Jeffrey Cooper for the appellant and Jason Zakia for the debtor.

New opinions — a successful challenge to PA’s emissions plan, plus an arbitration-issue waiver

National Parks Conservation Ass’n v. U.S. E.P.A. — agency — vacate in part — Vanaskie

Three national environmental groups petitioned the Third Circuit to review the EPA’s approval under the Clean Air Act of Pennsylvania’s decision not to do more to limit emissions that cause atmospheric haze in national parks and wilderness areas. Today, the environmental groups won a partial victory when the court vacated the part of the EPA’s ruling that approved Pennsylvania’s analysis of “best available retrofit technology.” The court ruled that Pennsylvania’s analysis suffered from multiple flaws and that the EPA failed to give a sufficient explanation for overlooking those flaws.

Joining Vanaskie were Ambro and Shwartz. Arguing counsel were Charles McPhedran of Earthjustice for the environmental groups, Kate Bowers for the EPA, Robert Reiley for an intervenor state agency, and Chet Thompson for an intervenor power company.  Coverage of the oral argument here.

Goldman Sachs v. Athena Venture Partners — arbitration — reversal — Fuentes

Goldman Sachs pitched an investment to Athena using terms like terrific, low risk, and very safe. Athena invested $5 million and lost about $1.4 million. Athena initiated arbitration against Goldman, and, after a nine-day hearing, an arbitration panel ruled for Goldman.

During the arbitration, it was disclosed to the parties that one of the arbitration panel members had been charged with unauthorized practice of law. At the time, the panelist said it was a one-time oversight. Neither side investigated or objected at the time, but after the panel’s ruling Athena investigated and concluded that the panel member’s alleged misconduct was far more serious than disclosed. Athena moved to vacate the award, and the district court granted the motion. Today, the Third Circuit reversed, holding that Athena waived its objection because it should have known the full story before it lost the arbitration. The opinion criticized FINRA, the arbitration organization, for failing to catch the issues with the panel member.

Joining Fuentes were Ambro and Nygaard. Arguing counsel were Edward Posner of Drinker Biddle for Goldman and David Moffitt (his name is misspelled in the slip op.) of Saul Ewing for Athena.

Filing CA3 emergency motions during the court closure

Starting today, the Third Circuit is closed through September 29 due to the Pope’s visit to Philadelphia. The court posted instructions on its website for filing emergency motions during the closure:

The Clerk’s Office Will Close Thursday, September 24 And Will Reopen On Tuesday, September 29, 2015. For Emergency Motions, I.E. Motions Requiring Action Before Thursday, October 1, During This Time Call 267-299-4903 Or 267-299-4904 And Leave A Message Detailing The Nature Of The Emergency And Leaving A Contact Number So That The Attorney On Duty Can Respond. No Administrative Stays Will Be Issued In Immigration Cases From September 24 Until September 29. If An Emergency Stay Is Needed In An Immigration Matter, Please Call The Emergency Number. (See Below Closure Notice Under News & Announcements For Additional Information.)

An aside for my fellow typography nerds: my theory is that this was written by a clerk who is bitter about having to read lawyers’ briefs filled with hard-to-read Title Caps Headings and seized this opportunity for a little revenge.

Court grants en banc rehearing on applying first-filed rule to dismiss with prejudice

The Third Circuit just granted rehearing en banc in Chavez v. Dole Food.

The now-vacated panel opinion, upholding dismissal with prejudice of a civil suit based on the first-filed rule, is here, my summary is here. The panel was split, with Nygaard joined by Greenaway while Fuentes dissented.

Here’s the introduction from the panel dissent (I’ve omitted two footnotes):

More than two hundred plantation workers brought
this suit alleging their employers and certain chemical
companies knowingly exposed them to toxic pesticides over a
period of many years. As a result, they say, they have injured
kidneys, are infertile, and are at heightened risk of cancer.
Twenty years after first bringing suit, no court has heard the
merits of their claims. Because the Louisiana court dismissed
on procedural grounds, the Delaware District Court’s
dismissal of the plaintiffs’ claims—with prejudice—
effectively ends the plaintiffs’ lawsuit. The majority’s
affirmance of that decision, i.e., the dismissal with prejudice
of a duplicate claim filed in a second court, is not supported
by our caselaw and is contrary to the decisions of the only
other Courts of Appeals to have addressed the issue.

I agree with the majority opinion that the first-filed
rule applied to the plaintiffs’ successive filing in Delaware,
and, as such, that the District Court should have given the
Louisiana suit priority. But I do not agree that the first-filed
rule is a basis to terminate a claim that otherwise may be
prosecuted. That is not something we have ever held before; it
is contrary to our positions on successive litigation and
concurrent litigation in other contexts; and it is inappropriate
in light of the Supreme Court’s command that we must
adjudicate properly presented cases not heard elsewhere on
the merits. As our sister circuits have done in like cases, I
would vacate and remand for further proceedings.

Today’s order notes that Nygaard exercised his IOP 9.6.4 option as a senior judge who sat on the panel to sit on the en banc court.

My thanks to an alert reader from New York for emailing to alert me just minutes after the order posted to the court’s website.

Update: today’s grant makes 3 pending en banc cases, with Chavez joining Dennis (a capital-habeas appeal) and Langbord (the double-eagle-coins appeal).

New opinions — IDEA statute of limitations and 1983 favorable termination

G.L. v. Ligonier Valley School Dist. — education & disability law — affirmance — Krause

Judge Cheryl Krause, confirmed to the Third Circuit just last summer, already looks like a rising star. Her first opinions —  this prisoner civil-rights opinion in Young, this bar reciprocity opinion in NAAMJP, and especially this bankruptcy-mootness concurrence in In re: ONE2ONE Communications  — have been powerhouse efforts. Clear, thorough, and strong: Supreme-Court-shortlist caliber work, I’m starting to believe.

Today, the Court issued the latest Krause opinion, and it’s another tour de force. The case arose under the Individuals With Disabilities Act, and the appeal centered on how the IDEA’s confusingly drafted statute-of-limitations discovery rule works. The plaintiffs here, the school district, and the federal Department of Education as amicus each took a different position. After a careful analysis (the slip opinion runs 52 pages) of this issue of first circuit impression, the court sided with the government, holding that due process complaints under the IDEA must be filed within two years after the reasonable discovery of an injury.

Joining Krause were McKee and Greenaway. Arguing counsel were Charles Jelley for the students and parent, Christina Lane for the district, and Jennifer Rosen Valverde (her name is misspelled in the slip op.) of the Rutgers law school Special Education Clinic for amici. The opinion thanked the organizations led by the Rutgers clinic for “their helpful perspective and excellent briefing and argument.”


Bronowicz v. Allegheny County — prisoner civil rights — partial reversal — Greenaway

In order to recover for wrongful imprisonment under 42 U.S.C. 1983, a former prisoner must show that his challenge  to his underlying was favorably terminated. Today, the Third Circuit held that a 1983 plaintiff satisfied the favorable termination requirement even though the prior order vacating his sentence did not expressly state that the sentence was illegal.

Joining Greenaway were Fisher and Jordan. Arguing counsel were Robert Owsiany for the former inmate, Virginia Scott for the County, and Caroline Liebenguth for three defendant probation officers.

Leahy: I hope Toomey will get a firm commitment to schedule a confirmation vote this week for Restrepo

Senator Patrick Leahy (D-Vt), ranking Democrat on the Senate Judiciary Committee, released this statement yesterday:

Last week, I spoke about Senate Republicans’ virtual shutdown of the judicial nominations process since they took over the majority.  Their refusal to respond to the urgent needs of our independent Third Branch is threatening to harm our justice system and rob the judiciary of outstanding public servants.

One glaring example of this harm is the unnecessary delay of Judge Luis Felipe Restrepo, who was nominated last year to fill an emergency vacancy on the U.S. Court of Appeals for the Third Circuit in Pennsylvania.  Judge Restrepo was unanimously confirmed two years ago by the Senate to serve as a district court judge.  During his tenure as both a Federal district court judge and as a Federal magistrate judge, he has presided over 56 trials that have gone to verdict or judgment.  He is superbly qualified, and I have heard no objection to his nomination.  Despite his outstanding credentials and experience, it took the Republican majority seven months just to schedule a hearing in the Judiciary Committee for this qualified nominee.

Judge Restrepo has bipartisan support from both Pennsylvania Senators, and was voted out of the Judiciary Committee unanimously by voice vote.  Once confirmed, Judge Restrepo will be the first Hispanic judge from Pennsylvania to ever serve on this court and only the second Hispanic judge to serve on the Third Circuit.  He has the strong endorsement of the non-partisan Hispanic National Bar Association.  At his confirmation hearing in June, Senator Toomey stated that “there is no question [Judge Restrepo] is a very well qualified candidate to serve on the Third Circuit.”  Senator Toomey described Judge Restrepo’s life story as “an American Dream” and recounted how Judge Restrepo came to the United States from Columbia and rose to the top of his profession by “virtue of his hard work, his intellect, his integrity.”  I could not agree more.

Given his remarkable credentials, wealth of experience, and strong bipartisan support, you would think the Senate would have confirmed Judge Restrepo months ago.  Instead, he was nominated for a judicial emergency vacancy back in November 2014, and for 10 months since his nomination, he has been denied a vote on his confirmation.  No Senate Democrat opposes a vote on his nomination.  The only ones who are holding up his nomination are the Senate Republicans.  I have heard Senator Toomey indicate his strong support and that he would like to see Judge Restrepo receive a vote.  I know Senator Toomey can be a fierce advocate for issues he cares passionately about, and I hope he will get a firm commitment from the Majority Leader to schedule a confirmation vote this week.

In addition to Judge Restrepo’s nomination, there are 12 other non-controversial judicial nominees pending on the Executive Calendar waiting for a vote.  All of them were approved by voice vote by the Judiciary Committee.  There is no reason for Republicans to block these nominees.  More than eight months into this new year, Republican leadership has allowed votes on just six judicial nominees.  By this time in 2007, when I was Chairman of the Judiciary Committee, we had confirmed 29 judges nominated by President Bush.  That is nearly five times more nominees than what this Republican Majority has accomplished so far this year.  Because of the Republicans’ virtual shutdown of the confirmation process, judicial vacancies have increased by more than 50 percent – from 43 to 67.  This is demonstrates an astounding neglect of the needs of our independent Third Branch.

Instead of confirming Judge Restrepo and the 12 other non-controversial judicial nominees on the Executive Calendar, Republicans are talking about another doomed vote on harmful legislation to block women’s health care choices.  Republicans had already forced a failed “show vote” to defund critical health services for women, spending two days on that unnecessary political exercise.  Although Senate Republicans campaigned last year on the promise that they would govern responsibly if they won the majority, they continue to prioritize divisive issues that play only to their political base and yield no results for the American people.

I am urging Republican leadership to reverse course.  Confirm Judge Luis Felipe Restrepo without further delay.  And then confirm the other 12 non-controversial judicial nominees pending on our Executive Calendar.


A juvenile strip-search postscript

Yesterday, as I posted here, the Third Circuit sided with a juvenile detention center that was sued for its practice of strip searching children.

Today in the news is this disturbing story from Texas about a 14 year-old boy named Ahmed. Ahmed made a homemade clock and brought it to school, but found himself arrested when the principal suspected his clock was a bomb, “despite the fact that the ninth grader repeatedly told both teachers and the police that his project was not, in fact, a weapon.” In a photo of him in handcuffs, you can see him wearing a NASA t-shirt, bless his nerdy little heart. As he later described, “I was taken to a juvenile detention center, where they searched me, they took fingerprints and mug shots of me, and they searched me until my parents came and I got to leave the building.”

I have no idea whether that Texas detention center has the same strip-search policy as the Lancaster County center. But imagining that boy, and all the other boys and girls like him, being strip searched, bend-over-and-cough, makes me sad.

New opinions — an en banc puzzler and an ERISA case

US v. Lewis (en banc) – criminal – reversal – Rendell

Today, an en banc majority – or is it a plurality? – held that an Alleyne error at Jermel Lewis’s sentencing was not harmless. Previously, a divided panel had come out the other way (Fisher and Chagares majority, Rendell dissent) — link to my post on the panel opinion is here, link to my recent analysis of the court’s en banc cases here. A concurring opinion would have held that the error was structural so that proof of harm should not be required, while a dissent argued that the error was harmless because the defense at trial and sentencing did not contest the underlying factual issue.

A strange feature of the case is that the judges disagree about whether the lead opinion speaks for a majority or a plurality, but no one clears it up. There are three opinions:

  • the lead opinion by Rendell,
  • an opinion by Smith “concurring,” which is joined by McKee, Ambro, and (perhaps surprisingly) Jordan, and
  • a dissent by Fisher, joined by Chagares and Hardiman.

Fisher’s dissent refers to the lead opinion, prominently and repeatedly, as “the plurality.” But Smith refers to the lead opinion throughout as “the majority.” If the 4 judges who joined Smith opinion also joined the lead opinion, then the lead opinion was a majority (10 of 13). The fact that Smith’s opinion was identified as “concurring,” not “concurring in the judgment,” suggests that’s the case, as does the fact that the Smith opinion calls the lead opinion a majority opinion.

But the dissenters have a point: in substance, it looks to me like the Smith 4 agree with Rendell on the outcome but reject her rationale, and also Smith never expressly says that he is joining the lead opinion. Without the Smith 4, the lead opinion would indeed be only a plurality (6 of 13).

Majority or plurality? I’m not sure. Does it matter? Do en banc pluralities bind future panels? Or does the Third Circuit follow Supreme Court practice, where the outcome-joining opinion resting on the narrowest ground is the one that is precedential? If so, is that Rendell’s or Smith’s? I’m not sure of the answers to these questions offhand, either. It’s unfortunate the court left this sort of confusion by failing to set straight who joined what.

Another interesting feature of the case is that, according to the dissent’s footnote 1, the rationale adopted by the lead opinion was one advanced not by the defendant, but by an en banc amicus. (The amicus is Amachi, Inc., a religious child-mentoring program started by former Philadelphia Mayor Goode, represented by a big-firm associate.) Fisher expresses concern that this “allows defendants to take the tack most expedient at any point in their appeal.” I doubt it: what sane appellate counsel would make strategy choices based on such far-fetched contingencies? CA3 grants rehearing in about 1 out of 1000 decided cases, and the odds of amicus jumping in for you in an en banc are lower still. However, I do suspect that Amachi’s visible victory here may well embolden future interested parties to get involved as en banc amici, which strikes me as a good thing.

Arguing counsel were Paul Hetznecker for Lewis, Robert Zauzmer for the government, and Michael Addis of Cravath for amicus.


Board of Trustees v. C&S Wholesale -– ERISA — affirmance — McKee

 The court decided an ERISA case today.

McKee was joined by Hardiman and Scirica. Arguing counsel were Thomas Hart for the appellant and Susan Hoffman for the appellee.

New opinions — a 2255 blockbuster, strip searches for 12-year-olds, and an antitrust case

US v. Ross – criminal 2255 – vacate denial and instruct to dismiss — Jordan

In a major ruling, the Third Circuit today issued an opinion that appears to mean that 28 U.S.C. § 2255 does not permit prisoners to challenge an illegal conviction and sentence if the defendant also was convicted on other counts resulting in equal or greater concurrent sentences. I suspect the opinion is incorrect.

The defendant here, Edward Ross, was convicted on numerous counts, one of them being possession of a machine gun in violation of 18 USC § 922(o). On that count, Ross was sentenced to 10 years in prison plus a $100 special assessment. Ross also received 10-year sentences on other 6 counts, with all 7 sentences to run concurrently.

As to the machine-gun-possession charge, the jury was not required to find that Ross knew the gun was a machine gun. (It seems at least possible he didn’t know: the gun in question was made to be semi-automatic, and had been converted to automatic by changing the firing pin, and it was found in Ross’s residence, not in use.) Six other circuits have held that knowledge that the gun was a machine gun is an element of the crime. Today’s opinion said, “Given the opportunity, we might join our sister circuits,” and Ross “may be right that the 922(o) conviction is unlawful.”

Ross’s trial lawyer did not object to the instruction, and his direct-appeal lawyer did not raise the issue either. In a 2255 motion, he argued that prior counsel were ineffective for failing to raise the machine-gun-knowledge issue. “Sounds like a winner,” I would have said.

After the district court denied relief on prejudice grounds, the government argued on appeal  (it is not clear from the opinion whether they made the argument below) that Ross’s challenge to the 922(o) conviction was not even cognizable under 2255. Today, the Third Circuit agreed, ruling that, even if Ross’s trial and appellate counsel performed deficiently and even if Ross were prejudiced, he still would not be entitled to relief because his claim fails a threshold “custody” requirement.

Here was the panel’s reasoning. First, “[t]he plain text of 2255 provides relief only to those prisoners who claim the right to be released from ‘custody.’” Second, the special assessment that Ross received as a result of the 922(o) conviction did not satisfy this “custody” requirement because it was not severe. Third, any collateral consequences resulting from the 922(o) conviction did not satisfy “custody” because Ross failed to show any consequences uniquely attributable to that conviction. Thus, the court held that the relief Ross sought was not cognizable under 2255, and it vacated the district court’s order denying relief and directed the court to dismiss instead.

I have real doubts about this reasoning. Here is what 2255 says:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Here, the court reasoned as if 2255 said that a prisoner’s claims must each challenge his custody. But what 2255 says is that a prisoner in custody may move to vacate or correct his sentence. Ross is unquestionably a prisoner in custody on his federal sentence. So, at least as I read it, the text of 2255 does not support the reasoning in the opinion. And the opinion does not cite any previous case for the proposition that a prisoner who’s in custody can have his 2255 dismissed because his claims do not also meet a custody requirement.

So the Ross opinion strikes me as wrong — badly wrong, even — and warranting rehearing. But I haven’t read the briefs or pulled the cases cited, and today’s ruling was sought by top-flight AUSAs and embraced by 3 smart federal appellate judges, so maybe I’m missing something big.

Joining Jordan were Fisher and Shwartz. Arguing counsel were Penn Law student John McClam (with 3 Dechert lawyers on the brief, two of whom recently clerked for Third Circuit judges) for Ross and Robert Zauzmer for the government.


J.B. v. Fassnacht – juvenile civil rights – reversal – Fuentes

A 12-year-old was accused of doing something illegal and was ordered to be detained, analogous to an adult who is arrested and taken to jail before trial. The juvenile detention center where he was taken had a practice of strip-searching every child during intake. So the 12-year-old was put behind a shower curtain, and then, observed by an officer, he was “asked to turn around, drop his pants and underwear, bend over, spread his buttocks, and cough.”

No contraband was found. The accusation against the 12-year-old was later resolved when he agreed to write a letter saying he was sorry.

In 2011, the Supreme Court in Florence held that it was permissible to strip-search all arrestees before admitting them to a jail’s general population. But Florence was a case about strip-searching adults. Today, the Third Circuit held that Florence applies to juvenile, too.

Has a 12-year-old entered juvenile custody smuggling contraband in his or her rectum, ever? The opinion–oddly, in my view–does not say. Isn’t that relevant to whether these automatic, uniquely intrusive searches of children are warranted?

Instead, the opinion relies upon “the realities of detention, irrespective of age,” a study indicating that elementary-aged children are being recruited into gangs, the observation that “less invasive searches may leave undetected markings on the body indicating self mutilation or potential abuse in the home,” and the like, none of which strike me as compelling rationales for forcing 12-year-olds to strip naked for officers and expose their rectums.

Joining Fuentes were Nygaard and Roth. Arguing counsel were David MacMain for the 12-year-old and Kevin Allen for the defendants.


In re: Chocolate Confectionary Antitrust Litigation — antitrust — affirmance — Fisher

The Third Circuit affirmed the district court’s grant of summary judgment in favor of Hershey, Nestle, and Mars in this antitrust appeal, holding that the evidence was insufficient to create a reasonable inference of a price-fixing conspiracy.

Joining Fisher were Hardiman and Roth. Arguing counsel were Steve Shadowen and Laddie Montague Jr. for the appellants and William Cavanaugh Jr, David Marx, and Peter Moll for the chocolate makers.

New opinions — a capital habeas reversal and a bankruptcy affirmance

Saranchak v. Secretary — capital habeas — reversal in part — Smith

The Third Circuit today ruled that a PA death-row inmate was entitled to a new sentencing hearing due to ineffective assistance of counsel. The court concluded that the PA Supreme Court’s denial of penalty-phase relief was unreasonable and based on a factual premise that was clearly false. The court expressly relied on the ABA Guidelines to assess counsel’s performance. It found that the state court’s prejudice ruling also was unreasonable because it misstated the standard and failed to discuss most of the relevant evidence. The court also affirmed the denial of guilt-phase relief.

Joining Smith were Vanaskie and Roth. Arguing counsel were Stu Lev of the Federal Community Defender for the petitioner and Jennifer Peterson of PA AG for the state.


In re: ICL Holding Co. — bankruptcy — affirmance — Ambro

When a debtor files for bankruptcy and undergoes reorganization, there often aren’t enough assets to pay off all the debts, and the bankruptcy rules provide a clear hierarchy for which creditors get payed first. But 11 U.S.C. 363 also lets a debtor sell its assets outside of the bankruptcy reorganization. When it does, must any funds produced by the sale be distributed using the same hierarchy?

In a lucid opinion issued today, the Third Circuit upheld a 363 sale, rejecting arguments by the government that the sale upset bankruptcy’s priority rules.

Joining Ambro were Fuentes and Roth. Arguing counsel were Thomas Clark for the government and Anthony Clark of Skadden Arps for the debtor and purchasers,

New opinion — an ERISA case

N.J. Brain & Spine v. Aetna — ERISA — reversal — Chagares

The Third Circuit decided an ERISA case today. The opinion was only 9 pages long, making this one of my favorite ERISA opinions ever. (Oh, okay. The court held that a patient’s assignment of benefits to her healthcare provider conferred standing on the provider to sue for those benefits under ERISA.)

Joining Chagares were Hardiman and Shwartz. Arguing counsel were Eric Katz of Mazie Slater for the appellant, Edward Wardell of Connell Foley for the appellee, and Brian Hufford of Zuckerman Spaeder for amicus.

New opinions — David beats Goliath, plus a divided disability-rights ruling

Brand Marketing v. Intertek Testing — civil — affirmance — Hardiman

This appeal is a David vs. Goliath story. David wins.

Our David is David Brand, who founded a company — a “small” company, the opinion tells us up front — that makes heaters. Our Goliath is Intertek, a company — “an international product-testing company with more than 35,000 employees” — that Brand hired to test whether his heaters met U.S. safety standards. Intertek said the heaters passed, but in fact should not have, and, when the problems with the heaters came to light, the company that had been selling the heaters sued Brand. Brand lost and owed over $600,00.

So David (Brand) sued Goliath (Intertek). Goliath did what Goliaths do: after it bought the judgment that Brand owed to his former seller, Intertek then “aggressively tried to collect its judgment in the weeks leading up to trial, attempting, among other tactics, to transfer the judgment from the company to David Brand personally.” (Those facts don’t seem relevant to the issues on appeal, but perhaps were included for anyone who missed small company/big company intro.)

After a trial, the jury ruled for Brand for over $6 million, including $5 million in punitives. Intertek appealed. On appeal, Intertek was represented by Bill Hangley of Hangley Aronchick, who is widely regarded as one of the top lawyers in the state. Brand was represented by a trial lawyer for the far smaller Pittsburgh firm of Meyers Evans.

Today, the Third Circuit affirmed. Among the court’s holdings are that Pennsylvania’s economic-loss doctrine did not bar Brand’s claim for negligent misrepresentation and that such misrepresentation occurred when Intertek prepared a test data sheet that it knew a third party would receive and rely on. The court also upheld the jury’s $5 million punitive-damages award.

Joining Hardiman was Roth, as well as Fisher in part. Fisher dissented on the issue of whether the evidence was sufficient to support the punitive-damages instruction. Arguing counsel were Brendan Lupetin for Brand and William Hangley for Intertek.

So David won this round too, but, given the panel split, the caliber of the losing party’s counsel, and the Supreme Court’s interest in policing punitives, I suspect the fight may not be done yet.


D.M. v. N.J. Dep’t of Educ. — disability & education — remand — Fisher

This appeal arises from a suit under the Individuals with Disabilities Education Act, brought on behalf of a student who wanted to continued attending certain classes despite a state ruling that the school was not authorized to provide those classes. The IDEA has a provision, the so-called “stay put” rule, that says (roughly) that IDEA litigants get to stay in their current education placement until the suit is decided. The key issue in this appeal is whether the stay-put rule applies, and the panel majority ruled that it did.

Joining Fisher was Jordan; Shwartz dissented. The legal argument is pretty evenly matched, but Fisher wins the typography battle hands down: his cites are italicized, Shwartz’s are underlined, to the horror of Butterick devotees everywhere. Arguing counsel were Jennifer McGruther for the state and Vito Gagliardi, Jr. for the student.

A Third Circuit bar member allegedly sent “sickening” messages from his government-email account; is that grounds for circuit discipline?

At 4:23 p.m. this past Friday afternoon, as the Labor Day holiday weekend began and few were paying attention to the news, Philadelphia District Attorney Seth Williams released a statement announcing that he would not fire the three lawyers in his office implicated in the Porngate scandal. Instead, the statement said, the 3 lawyers would undergo “sensitivity training.”

The most prominent of the three — and a member of the Third Circuit bar — is Frank Fina. Fina came to the DA’s office from the state Attorney General’s office, and it was while working in that office that he sent and received the emails. Here is how Fina was described in a well-reported Philadelphia Magazine article (link):

Fina was the star prosecutor under Tom Corbett — the guy who made the governor’s career, in fact, by taking on political corruption in Harrisburg and then sending Sandusky away for the rest of his life. Fina hates politicians in general and corrupt ones in particular; he put House Speakers John Perzel and Bill DeWeese, among others, in prison. Fina takes a special pride in how loathed he remains in the state capital, and his approach to skimming the top off Harrisburg’s political elite is infamous: Secretaries and other minions were often brought to tears by Fina or his investigators, who threatened them with jail if they didn’t rat on their bosses. Balls to the wall — that’s Fina’s style. And an atmosphere Fina and his fellow gunslingers called “fuck fuck” reigned in the office. It meant there were no holds barred on anybody who worked there — they could get busted or teased or ridiculed about anything.

Back to those emails. In the media coverage I’ve seen, some of the descriptions of been pretty bland, others more vivid, but nothing I’d read prepared me for what I saw when I actually looked at them online. Even in grainy black and white, it was disturbing. The Philadelphia Daily News called reviewing the Porngate emails “sickening.” (I strongly recommend against it, they are filled with graphic pornographic and offensive content, but, if you need to see them for yourself, the link is here.)

On a Thursday afternoon from his state account, Fina allegedly sent an email with the subject line  “FW: New Office Motivation Policy Posters,”:


One of the attached images — I’m not re-posting them here — graphically shows a young woman performing oral sex on a man next to a desk. The caption reads: “PERFORMANCE: Monthly performance evaluations are mandatory for all secretarial staff.” Another is a woman, nude from the waist down, kneeling on the floor and performing oral sex on a man seated at a desk. The caption reads: “DEVOTION: Making your boss happy is your only job.”

Fina allegedly sent this email to two subordinates, agents in the AG’s office. Governor Wolf recently fired one of them for receiving this message and others.

And it’s not just pornography. Here’s one of many photos attached to an email (subject line “RE: Need Motivation for the Weekend?”) that Fina allegedly sent to an outside attorney from his official email account during business hours:


If a high-level, high-profile city law-enforcement official did all that in his last government job, is the problem fixed by sending him to sensitivity training? The president of Philadelphia NOW doesn’t think so: “They get to keep their jobs and their salaries,” she said. “And we get to be demeaned.”

But this is a Third Circuit blog, so what’s it all got to do with the Third Circuit? Well, since 11/26/2001, Fina has been a member of the Third Circuit bar. He appeared for the AG’s office in several Third Circuit cases opened between 2000 and 2003: Fahlfeder v. Varner, 00-2227: Saranchak v. Horn, 00-9009; Gibbs v. Frank, 02-3924, Wenger v. Frank, 03-3014; and Eak v. Johnson, 03-4708. According to PACER, he has not appeared since.

So here’s the question: if Fina did what he’s accused of, did he violate the circuit’s disciplinary rules? Is he at risk of professional discipline by the Third Circuit? Let’s look at the rules.

First, Rule 2.1(b) authorizes circuit discipline  for “discipline, including disbarment or suspension, by another court.” Pennsylvania’s Rule of Ethical Conduct 8.4(e), in turn, provide that it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice.” Could what Fina did here qualify? Maybe. The fact that he was and is a high-profile senior law-enforcement official could weigh against him here.

Another potential basis for discipline is circuit disciplinary Rule 2.1(e), which says that a member may be disciplined for “any other conduct unbecoming a member of the bar of this Court.” Is what Fina allegedly did conduct unbecoming a member of the Third Circuit bar? Again, I don’t know.

But I wonder if the District Attorney’s refusal to more seriously punish Fina will lead the Third Circuit to take a closer look at that question.


UPDATE: The Legal Intelligencer just posted an article headlined, “Williams Could Face Fallout From Porngate Prosecutors,” which asserts that the D.A.’s decision not to fire the prosecutors “will likely come back to haunt Williams if he decides to run for statewide office.”

New opinion — reversing summary judgment in a prisoner civil-rights case

Young v. Martin — prisoner civil rights — reversal — Krause

The Third Circuit today reversed a district court ruling granting summary judgment against a prisoner alleging that his Eighth Amendment rights were violated. The opinion’s introduction gives this cogent summary:

Leonard G. Young, Jr., a Pennsylvania prisoner with a long history of mental illness, filed suit alleging that Appellees-Defendants1 violated his Eighth Amendment rights by securing him in a four-point restraint chair, naked, for fourteen hours, although he did not pose a threat to himself or others. Because we agree with Young that the District Court erred as a matter of law in granting summary judgment against him, we will vacate the judgment and remand for further proceedings.

The opinion also contains a significant discussion of a recent DOJ report on Pennsylvania’s misuse of solitary confinement on prisoners with serious mental illness or intellectual disability.

Joining Krause were McKee and Greenaway. Arguing counsel were Robert Ridge for the prisoner and Kemal Mericli for the AG.

New opinion — divided panel affirms summary judgment against teacher fired for anti-student blog posts

Munroe v. Central Bucks School Dist. — First Amendment — affirmance — Cowen

If you don’t remember the name, you might remember the facts: Nathalie Munroe was a school teacher who became national news when she was fired for referring to her students in blog posts as “the jerk,” “an obnoxious kid,” “utterly loathsome,” and the like. After she was fired, she sued the district, claiming that her speech was protected by the First Amendment. The district court granted summary judgment against her, and today a divided Third Circuit panel affirmed, holding that her speech was not constitutionally protected.

Joining Cowen was Restani by designation, with Ambro dissenting. That division — a senior judge and a judge sitting by designation against an active judge — suggests the odds of rehearing en banc are higher than normal. Arguing counsel were Stanley Cheiken for the fired teacher and appellate lawyer Kimberly Boyer-Cohen of Marshall Dennehey for the district.

ECF problems for Windows 10 users, and solutions

Howard Bashman posted this at How Appealing last night:

Is the current method of federal appellate electronic filing becoming technologically obsolete? Whenever I try to discuss technology at the level required by this post, I quickly reveal my own ignorance. With that disclosure out of the way, let me sound a warning for those who may someday soon attempt their first federal appellate electronic filing after having upgraded to Windows 10.

The federal appellate CM/ECF electronic filing system requires a web browser with Java installed to operate. Microsoft’s new Windows 10 browser, known as Edge, does not support Java. And Google Chrome also recently stopped supporting Java. That does still leave the option of using the Firefox browser, which is what I used to e-file the Reply Brief that I filed today in the U.S. Court of Appeals for the Third Circuit. But that was after more than a few anxious moments wondering why none of the previous ways that I had accomplished federal appellate e-filings in the past was working.

Before the Windows 10 upgrade, I had used Internet Explorer to accomplish my CM/ECF federal appellate filings, which was one of the rare times that I would use that web browser. Microsoft Edge purports to allow the user to open a web page in Internet Explorer, but that option did not allow me to launch the CM/ECF application earlier today on my desktop computer running Windows 10.

If readers have encountered these or other recent difficulties with federal appellate e-filing, or have discovered solutions that haven’t yet occurred to me, please feel free to send along your experiences via email and I will gladly share points of general interest with this blog’s readers.

I confirm that Howard’s solution — using the Firefox browser — still works for CA3 ECF filing. If you don’t have Firefox, you can download it free from this link. Problem solved.

Also, there is a simple work-around that lets you still use Java on Chrome, link here. I used that successfully last week to file a motion when I was away from the office and using a computer that did not have Firefox.

Happy filing!

Update: if you already have Firefox but installing Windows 10 changed your default browser to Edge, directions for changing it back are here.



Pope grants deadline extensions, sort of

The Pope’s upcoming visit to Philadelphia is bringing the city to a virtual halt, and the Third Circuit is not immune.

The Court has announced that, in light of the papal visit, various filing deadlines that had been set for Sept. 24-28 will be extended automatically. The details are in the court’s announcement.

Also, the Clerk’s office and the help desk will be closed from the 24th through the 28th.

H/T: I missed the announcement on the court website, but happily Bruce Greenberg and his New Jersey Appellate Law blog did not. Edit: also the Third Circuit Bar Association sent an email blast to members immediately after the court’s announcement.

A tsunami of new opinions

Six new opinions today! Plus 3 others from yesterday. I’m swamped so I’m keeping it short.

In re: Search of Electronic Communications — 4th Amendment — dismissal — Fuentes

The court dismissed this appeal by Congressman Chaka Fattah challenging a search warrant, holding that challenges to unexecuted warrants do not qualify for interlocutory appeal.

Schmigel v. Uchal — civil procedure — reversal — Krause

The court held that the notice requirement of Pennsylvania’s certificate-of-merit requirement for state professional malpractice suits is substantive and thus applies in a federal-court diversity suit. Rendell dissented.

Lincoln Benefit v. AEI Life — civil procedure — vacate — Fuentes

The court held that, in order to survive a motion to dismiss, a diversity-suit plaintiff need not allege the citizenship of each member of an unincorporated association, so long as it alleges complete diversity in good faith after a reasonable attempt to identify the members. Ambro concurred, joined by both members of the panel, to urge the Supreme Court to return to its earlier LLC-diversity approach.

Zahner v. Secretary — civil — reversal in part — McKee

The court held that federal law pre-empted a PA law that purports to make all annuities assignable and reversed a district-court ruling that annuities count as resources for purposes of Medicaid eligibility. Rendell dissented.

Reyes v. Netdeposit — class action — vacate — McKee

The court vacated a district court order denying certification of a consumer class on commonality and predominance grounds. Charles Becker argued on behalf of amici.

U.S. v. Doe — 2255 — remand — Ambro

The court remanded in this significant 2255 appeal, vacating the district court’s denial of Doe’s successor motion. The opinion is a glorious 50-page monument to the absurd complexity of habeas law.


Yesterday’s opinions:

Spady v. Bethlehem School Dist. — civil rights — reversal — Vanaskie

The court held that a defendant in a suit under 1983 was entitled to summary judgment because his conduct did not violate a clearly established constitutional right.

Washington v. Secretary — habeas — affirmance — Fisher

The court again affirmed a grant of habeas relief for allowing redacted introduction of a co-defendant’s confession, following a Supreme Court GVR.


In addition, the panel granted the appellant’s motion for panel rehearing in May’s Free Speech Coalition v. A.G., summarized here. Presumably a revised opinion is forthcoming.

New opinion — hearing required in 2255

United States v. Tolliver — 2255 — reversal — Greenaway

Today the Third Circuit vacated a district court ruling that had adjudicated a motion under 28 U.S.C. 2255 (the analog to habeas corpus for prisoners who were prosecuted in federal court) without holding an evidentiary hearing. The court remanded for a hearing and the opinion contains strong language supporting the need for 2255 hearings:

A district court considering a § 2255 motion “‘must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record.’”  Id. at 545 (quoting Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). In the IAC context, a movant need only “raise[] sufficient allegations” that his counsel was ineffective in order to warrant a hearing. Id. at 549.

Also the court did not apply plain-error review, even though the lack of a hearing was not raised in district court: ““It is irrelevant whether the Government or [movant] requested the hearing.'” And the only disputed facts went to prejudice, not deficient performance.

All that is likely to be helpful for many prisoners seeking hearings to challenge their federal convictions, but it was bad news for the prisoner here because the district court had granted her 2255 relief without a hearing.  Full disclosure: I am the prisoner’s CJA-appointed counsel.

Joining Greenaway were Fuentes and Nygaard. I argued for the prisoner, Robert Zauzmer argued for the government.

New opinions — bar-admission reciprocity and ERISA

NAAMJP v. Castille — constitutional law — affirmance — Krause

When I moved back to PA from NC back in 2008, I was admitted to practice in PA without taking the PA bar exam because I’d passed the NC bar and PA and NC have reciprocity. (Would I have moved here if I had to take the bar exam? Tough one.) Reciprocity makes sense because the effort required to re-learn areas of the law utterly irrelevant to your practice is a laborious, expensive waste for established lawyers.

Now, apparently there are some lawyers who feel especially strongly about that, and they belong to a group called the National Association for the Advancement of Multijurisdictional Practice (motto: “One bar exam is more than enough”). Said group, and two of its members from MD and NJ, sued the justices of the PA Supreme Court, alleging that PA’s lack of reciprocity with their states violates various constitutional provisions.

Alas, today NAAMJP lost on appeal, just as it had lost in district court. The opinion, appropriately, is a great little con-law refresher for those whose recollection of Conviser has dimmed.

Joining Krause are Chagares and Barry. The case was decided without argument.

For those interested, a sympathetic ABA Journal article on reciprocity challenges is here.


Mirza v. Insurance Administrator — ERISA — reversal — Fuentes

Today’s other decision is an ERISA case, and today that’s all I’ve got.


New opinions — NJ sports betting and civil rights

NCAA v. Governor of NJ — civil — affirmance — Rendell

Ted Olson vs. Paul Clement is the appeals-nerd equivalent of Ali-Frazier, so any case where they square off is sure to draw attention. So it was here. Today, the Third Circuit held that New Jersey’s sports-betting law violated federal law. Early news coverage by AP here and Legal Intelligencer here. Clement wins this round.

For a free oral-argument DIY CLE, the audio of the argument is here.

Joining Rendell was Barry; Fuentes dissented. Arguing counsel were Theodore Olson for the governor, Ronald Riccio for a trade association, Michael Griffinger for two state legislators, Paul Clement for the NCAA, and Peter Phipps for the US.

Update: coverage of the decision in New York Times here and Washington Post here.

Sprauve v. West Indian Co. — civil rights — reversal in part — Chagares

Today, the Third Circuit held that a company — once private, but now 100% government-owned — was a government entity for purposes of a civil-rights suit under 1983. The case was argued back in December.

Joining Chagares were Jordan and Shwartz. Arguing counsel were Karin Bentz for the plaintiffs and Micol Morgan for and Mark Hodge for the government defendants.

New opinions — a cyber-security win for the government, plus an ERISA appeal

FTC v. Wyndham Worldwide — agency — affirmance — Ambro

Wyndham Hotels was hacked 3 times, and over 600,000 consumers’ data was stolen. Among the Wyndham brands are Ramada, Super 8, Howard Johnsons, and Days Inn. The Washington Post lays out the facts here. The Federal Trade Commission sued Wyndham, alleging that its inadequate cyber-security was unfair to consumers. Wyndham moved to dismiss, and when that was denied it brought this interlocutory appeal, arguing that the FTC lacked authority to regulate cyber-security and that it lacked notice that its cyber-security practices were unlawful. Today, the Third Circuit affirmed in an opinion peppered with criticisms sharper than one normally sees directed at a Biglaw-represented party, such as this:

Wyndham posits a reductio ad absurdum, arguing that if the FTC’s unfairness authority extends to Wyndham’s conduct, then the FTC also has the authority to “regulate the locks on hotel room doors, . . . to require every store in the land to post an armed guard at the door,” Wyndham Br. at 23, and to sue supermarkets that are “sloppy about sweeping up banana peels,” Wyndham Reply Br. at 6. The argument is alarmist to say the least. And it invites the tart retort that, were Wyndham a supermarket, leaving so many banana peels all over the place that 619,000 customers fall hardly suggests it should be immune from liability under § 45(a).

Joining Ambro were Scirica and Roth. Arguing counsel were Eugene Assaf of Kirkland & Ellis (a former Weis clerk) for Wyndham and David Shonka for the FTC. The appeal had heavy amicus involvement as well.


Stevens v. Santander Holdings — ERISA — affirmance — Greenberg

The Third Circuit held today that, when a district court held that a denial of benefits was arbitrary and remanded to the plan administrator to reinstate short-term benefits and assess the employee’s eligibility for long-term benefits, and when it retained jurisdiction over the case, the district court’s decision was not yet final. CA3 thus dismissed the appeal for lack of jurisdiction.

Joining Greenberg were Greenaway and Krause. Arguing counsel were Patricia Smith of Ballard Spahr for the employer and Mark DeBofsky for the former employee.

New opinions — a riposte on equitable mootness, plus 3 cases

In re: Tribune Media Co. — bankruptcy — reversal — Ambro

Two appellants challenged the Tribune Company’s bankruptcy reorganization plan, and the district court held that both challenges were equitably moot. Yesterday, the Third Circuit held that one challenge was equitably moot but that the other was not because their challenge would not disrupt the reorganization or harm third parties who have relied on it.

The holding is important for bankruptcy lawyers, but this is a fascinating case for other CA3 lawyers, too. Here’s why: just a month ago, Judge Krause — the court’s newest judge — issued a provocative and forceful opinion in In re: ONE2ONE urging her colleagues to abolish (or, failing that, modify) its equitable mootness doctrine.

In Tribune Media, Ambro responds directly to Krause, with a separate concurrence to his own majority opinion. (Vanaskie joins, Shwartz doesn’t.) Ambro acknowledges that Krause’s concurrence is well-crafted, but responds over 11 remarkable pages with a point-by-point rebuttal to her arguments against equitable mootness. If Krause’s opinion read like a petition for en banc review, and Ambro’s reads like a response in opposition. It’s a rare dialogue.

As noted, Vanaskie and Shwartz joined Ambro’s main opinion and Vanaskie joined his concurrence. Arguing counsel were appellate superstar Roy Englert for the challengers (one of the lawyers on the brief was Mark Stancil, an appellate star in his own right who clerked for the same Tenth Circuit judge I did) and James Johnston for the debtor.


Hansler v. Lehigh Valley Hosp. Network (panel rehearing) — FMLA — reversal — Fuentes

The Third Circuit granted panel rehearing and issued a new opinion in this FMLA case, originally decided in June. Before the panel was split, with Roth dissenting; now the panel was unanimous. While the outcome remained the same, the court changed language in the opinion. For example, where the old opinion said, “Lehigh Valley violated the Medical Leave Act,” the new one says, “Hansler has stated a claim that Lehigh Valley violated the Medical Leave Act.”


Jones v. SEPTA — employment — affirmance — Hardiman

The Third Circuit held that, under Title VII’s substantive discrimination provision, suspension with pay is not an adverse employment action.

Joining Hardiman were Greenaway and Krause. The case was decided without argument.


Chavez v. Dole Food Co. — jurisdiction — affirmance — Nygaard

A divided Third Circuit panel upheld a district-court order dismissing a suit with prejudice based on the first-filed rule, relying in part on its view that the “party’s forum shopping [wa]s so clearly on display.”

Nygaard was joined by Greenaway; Fuentes dissented, arguing that the majority created a circuit split. Arguing counsel were Jonathan Massey for the appellants, Caitlin Halligan for one appellee, and Steven Caponi (the only non-Scotus clerk who argued) for a second appellee.


New opinion — a rare habeas-petitioner win

Programming note: I was in Charlotte last week for the National Federal Habeas Corpus Seminar, and I’m out of town this week visiting family, so I’m behind on my opinion summaries. Apologies, dear readers.

Lee v. Superintendent — habeas corpus — affirmance — Ambro

I’ve observed here and here before that the Third Circuit’s once-robust reversal rate in habeas cases cratered after 2011. That post used statistics through 2013; in 2014, the habeas- and 2255-reversal rate remained vanishingly low. I’m pretty sure that reversal-rate freefall is awful news for habeas petitioners overall — CA3 didn’t suddenly get more deferential to district-court habeas rulings. Instead, a lot of prisoners who would have won reversals on appeal a few years ago get affirmed now.

But the Court’s recent decision in Han Tak Lee’s case proves that not all habeas affirmances are prisoner losses. Lee was convicted in Pa. court of murdering his daughter by setting fire to the building where she slept. In his habeas petition, Lee alleged that his due-process rights were violated because the prosecution’s arson-expert testimony was junk science. That’s a legally creative claim, and creative claims almost always lose in habeas these days, but the circuit’s ruling in Lee’s prior appeal was law of the case and it gave him enough to win in district court and again on appeal.

It is often said that cases like this prove how well our legal system works, but that is absurd. Even after the prosecution’s key evidence was discredited, and even after Lee hit the lottery when he got appellate powerhouse Peter Goldberger to represent him, he still won only by the skin of his teeth. And he first alleged in federal court the gross unreliability of the prosecution’s evidence against him back in 2005, but he sat behind bars for almost another decade before his release. Han Tak Lee was in maximum-security prison, wrongfully convicted of killing his own daughter, for 24 years. As he told People earlier this month, “I lost all my dreams.”

Joining Ambro were Fuentes and Greenberg. Arguing counsel were Peter Goldberger for Mr. Lee and Matthew Bernal for the state.


Two interesting links

Howard Bashman’s latest Upon Further Review column in the Legal Intelligencer (free link here) contains a fascinating discussion of video recording of Third Circuit arguments. (That’s a point I mentioned in my circuit website roundup here.) Bashman reports that Chief Judge McKee told him “he was hoping to convince his colleagues on the Third Circuit that the court should join the Ninth Circuit in posting video of its oral arguments online.” I share Howard’s strong support for the idea.

And here is the latest newsletter of the Bar Association for the Third Federal Circuit. As usual it is essential reading for CA3 practitioners and super-fans. It includes an article by Judge Smith discussing circuit cost-reduction efforts, which notes:

[I]n the wake of sequestration, Chief Judge
Theodore A. McKee implemented a fiscal austerity program to be applied to
both the use of space within the court units of the Circuit and the expenditure
of funds that could be re-programmed from facility improvements to personnel.
Quite simply, Chief Judge McKee’s concerns were that the job security of
court staff has priority over any short-term improvements in rented space. Our
Circuit was the only one in the country to adopt such a policy. And that policy
set the tone for our implementation of the national space reduction goals that
were subsequently mandated by the Judicial Conference.

The latest issue also includes this article, co-authored by Bashman and me, discussing the Lehman Brothers decision, plus an article by me on CA3 en banc practice, adapted from this blog post. I was proud to have the chance to contribute to 3CBA’s fine work.

New standing order for immigration cases

Today the Third Circuit issued a new standing order “to ensure that petitioners in immigration matters are not deported before the Court has an opportunity to act on a motion for stay of removal and to ensure that the Court has a sufficient record on which to decided such a motion.”

The standing order is here.

Under the new standing order, if a party files a facially valid stay of removal (meeting 4 criteria listed in the order), then the Clerk is directed to stay removal until a motions panel has considered the motion.

In June, Chief Judge McKee entered an order directing the government to find and return a mother and daughter who were about to be, or had just been, deported to Guatemala. According to this news account:

Cambria had asked the court to block Ana’s deportation while her latest appeal was pending. In its opposition to that request, the U.S. attorney’s office told the court that, as of June 9, immigration officials had no plans to remove Ana and her daughter. She was then removed 10 days later at 9:55 a.m. Friday morning.


New opinions — a child-sex suit against the voice of Elmo, and two cases a lot less likely to go viral

Well, it’s August, and that means clerkships are ending so chambers are cranking out a lot of opinions. After whole weeks without a published opinion back in the spring, this week has seen 1 Monday, 3 yesterday, and 3 more today. Happy days for CA3 fans.

Stephens v. Clash — civil — affirmance — Smith

Kevin Clash is “‘an internationally-known puppeteer and voice actor for children’s programming,’ best known for his role as the voice of Sesame Street‘s Elmo.” Sheldon Stephens alleged that Clash started a multi-year sexual relationship with him in 2004 when Clash was 44 and Stephens was 16. Stephens alleged that he did not become aware of the psychological harm he suffered until 2011, and he filed suit in 2013, 9 years after the sex began and 7 years after Stephens turned 18, but the district court dismissed the suit as untimely.

Today, the Third Circuit affirmed. The court held that the discovery rule applies,* but held the plaintiff’s claims were untimely anyway because, even if he did not recognize the extent of his injuries until later, he should have discovered that he was injured from the outset of the sexual “relationship.”

* The majority opinion says, “we hold that the discovery rule is applicable,” and refers to “this holding,” but in his concurrence Jordan asserts that this discussion is dicta because it is not necessary to the outcome.

Joining Smith were Jordan and Sloviter, with Jordan concurring separate to express doubt about the discovery holding. Arguing counsel were Stuart Mermelstein for the plaintiff and Michael Berger for the voice of Elmo.

In re: Semcrude — bankruptcy — Fisher — reversal

The Third Circuit’s introductory summary defies improvement by me:

Thomas L. Kivisto, co-founder and former President and CEO of SemCrude L.P., an Oklahoma-based oil and gas company, allegedly drove SemCrude into bankruptcy through his self-dealing and speculative trading strategies. SemCrude’s Litigation Trust sued Kivisto, and the parties reached a settlement agreement and granted a mutual release of all claims. One month later, a group of SemCrude’s former limited partners (collectively, “Oklahoma Plaintiffs”) sued Kivisto in state court, alleging breach of fiduciary duty, negligent misrepresentation, and fraud. Kivisto filed an emergency motion to enjoin the state action on the theory that the Oklahoma Plaintiffs’ claims derived from the Litigation Trust’s claims, which the U.S. Bankruptcy Court for the District of Delaware granted. On appeal, the U.S. District Court for the District of Delaware reversed, concluding that the claims were possibly direct and remanded. The Bankruptcy Court thereafter adopted the District Court’s order in its entirety and denied injunctive relief. Because we conclude that the claims are derivative, we will reverse.

Joining Fisher were Fuentes and Krause. Arguing counsel were Paul Bessette for Kivisto and Adam Schiffer for the Oklahoma plaintiffs. The case was argued back in December.

Devon Robotics v. DeViedma — civil — dismissal of interlocutory appeal — Krause

The Third Circuit dismissed this interlocutory appeal from denial of summary judgment, holding that it lacked jurisdiction. Civ pro nerds, rejoice! Remembering last month’s impressive equitable-mootness opinon, I’d say Judge Krause is already coming into her own as a procedure-law powerhouse.

Joining Krause were McKee and Greenaway. Arguing counsel were Gary Samms for the appellees and James Golden for the appellant.

New opinions — a questionable plea-ineffectiveness ruling, plus two civil-rights cases

US v. Fazio — habeas corpus — affirmance — Chagares

Cosmo Fazio is a non-citizen who pled guilty to cocaine distribution after his lawyer told him that, in light of the conviction, there was “a chance” he would be deported but in the lawyer’s opinion “he would not be.” Both the plea agreement and the plea colloquy said that “no one can predict to a certainty” what effect the conviction would have on his immigration status. Ten days after Fazio pled guilty, a new lawyer told him that deportation was not just possible, it was certain. Fazio immediately tried to take back his plea, and ultimately Fazio filed a 2255 motion arguing that his plea counsel was ineffective, which the district court denied.

Today, the Third Circuit affirmed, denying Fazio’s appeal. The court did not decide whether plea counsel’s performance was deficient, holding that Fazio was not prejudiced because the colloquy “cured” any error by counsel. (The court also enforced Fazio’s collateral-attack waiver, although the opinion suggests that it would not have enforced the waiver if it had found that the ineffective-assistance claim had merit.)

Chagares was joined by Ambro and Vanaskie. Arguing counsel were Almon Burke and Mark Goldstein for Fazio and Michael Ivory for the government.

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.


  • Here is the district court order denying Fazio’s motion to withdraw his plea, which describes the facts in greater detail than the CA3 opinion does; and
  • Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.
  • Here is the CA3 oral argument audio.


Santini v. Fuentes — civil rights — affirmance — Van Antwerpen

The court today revived a civil rights suit brought by a farmer against police who forcefully arrested him. The district court had granted summary judgment against the farmer, but the Third Circuit reversed in part, “emphasizing that . . . we must construe all facts and inferences in favor of the nonmoving party.”

Joining Van Antwerpen were Chagares and Krause. The case was decided without argument.

Disability Rights NJ v. Commissioner — civil rights — affirmance — Hardiman

The court today largely upheld New Jersey’s laws allowing non-emergency forcible medication of mentally ill persons in state custody without judicial process. The only persons with a right to judicial process before being forcibly administered psychotropic drugs are patients who are no longer subject to involuntary confinement but who are still in custody awaiting transfer to another facility. (Why the heck did NJ cross-appeal that?)

Joining Hardiman were Smith and Barry. Arguing counsel were Nathan Mammen of Kirkland & Ellis for the disability-rights group and Stuart Feinblatt for the state.

New opinion — Third Circuit rules against deeds recorders in fee-suit appeal

Montgomery County, Pa. Recorder of Deeds v. Merscorp — civil — reversal — Barry

In an appeal involving a battalion of heavy-hitting amici, the Third Circuit today ruled against a county deed recorder who sought millions in unpaid recording fees from an electronic mortgage-loan registration system. When homeowners transfer a mortgage interest, they have to record the transfer with the county and pay a fee. But banks and mortgage lenders figured out a way to avoid paying those fees when they transferred mortgage interests. A county recorder sued, arguing that the industry end-run around recording fees violated Pennsylvania law, and a district court agreed. The Third Circuit reversed, holding that Pa. law does not require all land conveyances to be recorded.

For appellate junkies, the most notable feature of the case was the impressive talent involved on behalf of various amici. Local firms involved on the industry side included Reed Smith, Fox Rothschild, K&L Gates, while amici on the recorder’s side included a long list of legal aid and consumer groups. In all, forty one lawyers in all appeared on the briefs!

Joining Barry were Chagares and Krause. Arguing counsel were Robin Brochin for the electronic registration system and Joseph Kohn for the county recorder.

“It’s a very rare thing when Michael Mukasey, Greg Craig, Walter Dellinger, Larry Thompson, Jamie Gorelick, Seth Waxman and Peter Keisler agree that a [Third Circuit] court decision siding with federal prosecutors is wrong”

The quote that forms the title of this post is by former acting solicitor general Neal Katyal in this article by Adam Liptak today in the New York Times. Katyal has filed a USSC cert petition on behalf of George Georgiou, whose securities-fraud conviction the Third Circuit upheld in January. The legal luminaries Katyal mentions, represented by fellow luminary Seth Waxman, have all joined an amicus brief seeking reversal.

The Third Circuit opinion is here and the amicus brief is here.

A key cert issue is whether Brady v. Maryland allows prosecutors not to turn over material exculpatory evidence if the defense could have found it themselves. Here, the Third Circuit (Greenaway with Chagares and Vanaskie) quoted its own 1991 precedent to say that Brady does not oblige the government to provide defendants with evidence they could obtain from other sources by exercising reasonable diligence. But the Third Circuit’s opinion did not mention the Supreme Court’s 2004 pronouncement in Banks v. Dretke that “Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material . . . . A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”

The SG’s cert response is due later this month.

New opinion — court upholds mortgage-loans litigation-class certification

In re: Community Bank of Northern Va. Mortgage Lending Practices Litig. — class action — affirmance — Jordan

Today the Third Circuit upheld a district court ruling certifying a nationwide litigation class in a mortgage-loan practices suit brought against a bank now owned by PNC Bank. The court rejected a laundry list of challenges by PNC to class certification, notably its argument that intra-class conflicts defeat adequacy of representation because the same counsel represent different sub-classes; that would have been a problem if it were a limited-fund settlement class, but it was no longer a problem as a litigation class with no limited fund. (Imagine my excitement to see the court cite Ortiz v. Fibreboard, the somewhat obscure mass-tort case that I wrote my law review note on [what! Lexis is charging 22 bucks to access my note?] way back when.)

Joining Jordan were Fisher and Greenaway. Arguing counsel were Martin Bryce of Ballard Spahr for the bank and Bruce Carlson and Roy Walters for the appellees.

En banc rehearing granted in double-eagle-coins case

Today the Third Circuit granted rehearing en banc in Langbord v. U.S. Treasury, the double-eagle-coins case. The April panel opinion was authored by Rendell and joined by McKee, with Sloviter dissenting. According to the order granting rehearing, Sloviter and Rendell both will participate in the en banc review.

The now-vacated panel opinion is here, my summary is here.


New opinion — a habeas procedural affirmance

Norris v. Brooks — habeas corpus — affirmance — Hardiman

One of the most important habeas corpus cases of the past decade or so was the Supreme Court’s ruling in Martinez v. Ryan, which held that ineffective assistance of counsel at the initial state post-conviction stage can excuse procedural default of a habeas claim of trial IAC. (In Pennsylvania, “initial” means PCRA proceedings in the Court of Common Pleas, as opposed to any appeals from denial of the PCRA.) One of the key questions after Martinez was how the case would apply retroactively to prisoners whose habeas petitions had already been denied. Last year, the Third Circuit in Cox v. Horn held that such prisoners could raise Martinez claims in a motion under FRCivP 60(b) for relief from judgment.

Today, the Third Circuit ruled that a district court did not abuse its discretion in denying a prisoner’s Martinez motion under Rule 60(b) because the district court had ruled that the procedural default arose not from an error made in initial state postconviction proceedings, but instead from an error made during the postconviction appeal.

Joining Hardiman were Rendell and Vanaskie. Arguing counsel were Arianna Freeman of the EDPA FCD for the prisoner and Susan Affronti of the Philadelphia DA for the Commonwealth.

New opinions — one on bankruptcy dischargeability, one on Medicare hospital-reimbursement

In re Bocchino — bankruptcy — affirmance — Van Anterwerpen

A stockbroker made two abysmal investment choices for his clients for which he pocketed big commissions. Here’s one of them, from today’s opinion:

The first investment involved an entity known as Traderz Associates Holding, Inc. (“Traderz”). Bocchino learned from a superior that Traderz “might go public” and that the endeavor was supported by “some commitment” from a
popular fashion model. Based solely on these facts, and without any other independent investigation into the quality of the entity, Bocchino immediately sought investment from clients. Bocchino received over $40,000 in commissions from Traderz sales.

Traderz “turned out to be a fraudulent venture” and “the anticipated value of the investments vanished.” So the SEC sued him and he ended up with $178,000 judgments against him. He then declared bankruptcy under Chapter 13, but the SEC argued that much of the judgment amounts were non-dischargeable. The bankruptcy court sided with the SEC, as did the district court, and today the Third Circuit affirmed, holding that the debts were nondischargeable because the broker’s gross recklessness established scienter and he proximately caused his clients’ losses.

Joining Van Antwerpen were Chagares and Krause. The case was decided without argument.

Geisinger Community Medical Ctr. v. Secretary HHS — agency — reversal — Fisher

To the health-law diehards out there, my apologies. The key law in this case is 42 U.S.C. 1395ww(d)(8)(E)(i). That cite alone is a pretty decent hint that interest in this case is apt to be narrow. A sophisticated grasp ruling eludes me, I must confess, but it has something to do with how Health & Human Services classifies hospitals when it decides how much to reimburse them for Medicare-treatment costs. The hospital won, and an HHS regulation failed Chevron, that much I know.

Joining Fisher was Chagares; Cowen dissented. Arguing counsel were Joseph Glazer for the hospital challenging its classification and Tara Morrissey for the government.




New opinion — court vacates class certification in sunroof suit against Volvo

Neal v. Volvo Cars — civil class action — reversal — Smith

Today the Third Circuit vacated a district-court ruling granting class certification in a consumer class action brought against Volvo alleging defective sunroof drainage. The court directed the district court to “define the class membership, claims, and defenses, and so that it may rigorously analyze predominance in the first instance.”

Joining Smith were Chagares and Hardiman. Arguing counsel were Peter Herzog III for Volvo and Eric Katz of Mazie Slater for the class plaintiffs.

New opinion — an equitable-mootness reversal and a call to abolish it

In re: ONE2ONE Communications — bankruptcy — reversal — Greenaway

A company filed for Chapter 11 bankruptcy reorganization. Over one creditor’s objections, the bankruptcy court confirmed the reorganization plan. The creditor appealed to the district court, which ruled that its appeal was equitably moot. The creditor then appealed to the Third Circuit, urging the court to overrule its prior adoption of the equitable mootness doctrine.

Today, the Third Circuit reversed. The panel could not overrule prior circuit precedent, but the court held that the district court’s application of the doctrine was an abuse of discretion.

Joining Greenaway were McKee and Krause. Krause filed a long and thoughtful concurrence urging the en banc court to abolish or at least reform the “legally ungrounded and practically unadministerable” equitable mootness doctrine. Arguing counsel were Courtney Schael for the creditor and Michael Sirota for the debtor.

New opinion — court denies an interesting technical challenge to deportation

Paek v. A.G. — immigration — denial — Rendell

Ka Paek was admitted to the U.S. as a lawful permanent resident — conditionally at first, then permanently — because his father was a citizen in the military. Fourteen years later, after he also had married a U.S. citizen, he was convicted of robbery and related charges and the government decided to deport him. Paek challenged removal, arguing he was eligible for a waiver of inadmissibility. The waiver may not be granted to an “alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,” but Paek argued that it could be granted because he was “admitted to the United States” as a conditional resident, and only became a permanent resident after his admission. Today, the Third Circuit rejected Paek’s argument and dismissed his appeal because even a conditional resident is “admitted for permanent residence” under the INA.

Joining Rendell were Hardiman and Vanaskie. Arguing counsel were Ben Winograd for the deportee and Bernard Joseph for the government.

New opinion — a CA3 opinion applying the required-records exception to the 5th Amendment

US v. Chabot — tax / criminal — affirmance — Restani

During an investigation of overseas bank accounts, the IRS issued a summons requiring Eli Chabot to turn over certain bank records that a federal regulation required him to keep. Chabot opposed the summons, invoking his Fifth Amendment privilege against self-incrimination. The district court ruled for the IRS, and today the Third Circuit affirmed. Joining six other circuits, the court held that the records fell within the required-records exception to the Fifth Amendment, even though Chabot argued that the information in the records was almost exactly what the government needed to charge them with felonious failure to report.

Joining Restani, who sat by designation, were Ambro and Cowen. (That’s one active, one senior, and one visiting, illustrating the circuit’s judicial emergency.) Arguing counsel were Richard Levine for the taxpayer and Robert Branman for the government.

New opinions — court upholds state election-disclosure law, plus a trademark case

Delaware Strong Families v. Attorney General — First Amendment / elections — reversal — Greenaway

A group that calls itself Delaware Strong Families (mission: “to rebuild a culture of marriage, family and freedom”) wanted to distribute a voter guide without having to reveal whose money was funding them. A state law required such disclosure. DSF sued, alleging that the disclosure law was unconstitutionally overbroad, and the district court granted them a preliminary injunction. Today, the Third Circuit reversed, holding that, because the disclosure law is constitutional as applied, DSF was not entitled to an injunction.

Joining Greenaway were McKee and Krause. Arguing counsel were Jonathan Cedarbaum of Wilmer Hale for the state and Allen Dickerson for the group. The issue, the counsel and amici involved, and the fact that the group filed similar suits in two other jurisdictions suggests to me that a cert. petition is on the way.

Arrowpoint Capital v. Arrowpoint Asset Management — trademark– reversal — Jordan

A financial-services corporation with Arrowpoint in its name sued several other investment-related companies with Arrowpoint in their names, alleging trademark infringement. The district court denied an injunction, but today the Third Circuit vacated, concluding that the ruling below rested on “an overly narrow interpretation of the kind of confusion that is actionable.”

Joining Jordan were Smith and Sloviter. Arguing counsel were Corby Anderson for Arrowpoint and Lewis Prutzman for the other Arrowpoints.

New opinions — the post-vacation marathon catch-up edition

I was on vacation last week. I had planned to keep posting on new opinions, diehard CA3 enthusiast that I am, but I ended up assisting a colleague on an urgent habeas case instead. So now I’ve got serious some catching up to do. Here goes, starting with today’s opinion and working back …

United States v. Centeno — criminal — reversal — Shwartz

The Third Circuit today vacated two criminal convictions: one because the prosecutor’s closing argument sought conviction on a basis not charged in the indictment and thus resulted in an improper constructive amendment, the other because one count of conviction violated double jeopardy because that count was a lesser-included offense of another count of conviction (the defendant failed to object at trial; the government confessed error on appeal). The panel rejected sufficiency-of-the-evidence challenges.

Joining Shwartz were Fisher and Jordan. Arguing counsel for one co-defendant was Brett Sweitzer of the EDPA FD, for the other Elizabeth Plasser Kelly; arguing for the government was Denise Wolf.

Perelman v. Perelman — ERISA — affirmance — Vanaskie

The Third Circuit affirmed district-court rulings that an ERISA plaintiff lacked standing to raise certain claims and was not entitled to attorney’s fees. Vanaskie was joined by Ambro and Shwartz. The case was decided without argument.

Evankavitch v. Green Tree Servicing — consumer — affirmance — Krause

A consumer win in a debt-collection appeal, cogently summarized in the Third Circuit opinion’s opening paragraph:

Under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., a debt collector is liable to a consumer for contacting third parties in pursuit of that consumer’s debt unless the communication falls under a statutory exception. One of those exceptions covers communication with a third party “for the purpose of acquiring location information about the consumer” but, even then, prohibits more than one such contact “unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.” 15 U.S.C. § 1692b. In this appeal following a jury verdict and judgment entered against a debt collector for repeated contact with third parties, we consider a matter of first impression among the Courts of Appeals: whether the burden in such a case is on the debt collector to prove or the consumer to disprove that the challenged third-party communications fit within § 1692b’s exception for acquisition of location information. We conclude that the debt collector bears that burden and will therefore affirm.

Joining Krause were Fuentes and Fisher. Arguing counsel were Deepak Gupta of D.C. appellate boutique Gupta Wessler for the debtor and David Bird of Reed Smith for the debt collector.

US v. Small — criminal — affirmance — Chagares

Sometimes, the line between clever and stupid is murky. Kevin Small was serving a state prison sentence, and when that sentence was over he was to be handed over to serve a federal sentence for tax fraud. So he arranged for a fake federal court order purporting to vacate his federal sentence to be sent to the state prison. I never would have believed that that would work, but it did. Clever? Stupid? Both?

Anyway, the issue on appeal was whether Small’s gambit amounted to the federal crime of escape, which normally applies to an escapee from federal custody. The court held that it did. Poor Small now has 5 years for escape tacked onto his 11+ years for tax fraud.

Joining Chagares were Ambro and Vanaskie. Arguing counsel were Eleni Kousoulis for Small and Christy Fawcett for the government.

US v. Fountain — criminal — affirmance — Krause

In a consolidated tax-fraud appeal, the Third Circuit affirmed. The court rejected a host of challenges to the convictions and sentences. The main significance of the case appears to be that it clarifies the standard for criminal liability under the Hobbs Act for defendants prosecuted for acting under color of official right.

Joining Krause were Fuentes and Fisher. Arguing counsel for the defendants were Julie McGrain, Lawrence Bozzelli, and Daniel Siegel, while Joseph Khan argued for the government.

Trinity Wall Street v. Wal-Mart — corporate governance — reversal — Ambro

In a high-profile shareholder-suit appeal, the Third Circuit ruled that Wal-Mart was allowed to block one of its shareholders from submitting a proposal for shareholder vote that would have required Wal-Mart to re-evaluate its sale of high-capacity guns.

Vanaskie joined Ambro’s 60-page majority opinion. Krause concurred in the judgment, joined by Vanaskie in part. Arguing counsel were Theodore Boutrous, Jr. of Gibson Dunn for Wal-Mart and Joel Friedlander for the shareholders.

US v. Edwards — criminal — reversal — Smith

The Third Circuit vacated a criminal conviction because the prosecution violated the 5th Amendment by repeatedly referring to the defendant’s post-arrest, post-Miranda silence during the trial and closing arguments. The government conceded the error on appeal but argued unsuccessfully that it was harmless because the court gave a curative instruction. The court held that the instruction did not make the error harmless because it only came after the court had overruled the defendant’s contemporaneous objection and because it was contradicted by other instructions.

Joining Smith were McKee and Scirica. Arguing counsel were Alvin Entin for the defendant and Nelson Jones for the government.

American Farm Bureau v. US EPA — environmental — affirmance — Ambro

The Third Circuit upheld a 2010 EPA regulation limiting discharge of pollution into the Chesapeake Bay. The long opinion concludes thus:

Water pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come). Any solution to it will result in winners and losers. To judge from the arguments and the amici briefs filed in this case, the winners are environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers. The losers are rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA. Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.

Joining Ambro were Scirica and Roth. Arguing counsel were Richard Schwartz for the polluters, J. David Gunter II for the EPA, John Mueller for environmental intervenors, and Christopher Pomeroy and Steven Hann for municipal interventors.

US v. Lowe — criminal — reversal — McKee

The Third Circuit reversed the denial of a motion to suppress evidence, holding that (1) the defendant was seized when the officers approached him and ordered him to take his hands out of pockets and (2) the officers lacked reasonable suspicion when they seized the defendant.

Joining McKee were Greenaway and Krause. Arguing counsel were Robert Epstein for the defendant and Robert Zauzmer for the government.

 Jensen v. Hessler — consumer — affirmance — McKee

The Third Circuit held that a false statement in a debt-collector communication is actionable under the FDCPA only if it is material. The court held that listing the wrong name for a court clerk on a subpoena was not material and affirmed.

Joining McKee were Rendell and Fuentes. Arguing counsel were Sergei Lemberg for the debtor and Mitchell Williamson and Lauren Burnette for the debt-collectors.


Supreme Court denies stay of Third Circuit contraception-coverage ruling

Lyle Denniston had this post at Scotusblog yesterday which begins:

Continuing to make sure that female employees and students have access to birth control, but that religious non-profit organizations where those women work or study do not have to provide it, the Supreme Court took action Monday on a case that is developing for next Term.

In a two-page order, the Court turned aside requests by Roman Catholic colleges, charities, and other non-profits in Pennsylvania to keep on hold a ruling by the U.S. Court of Appeals for the Third Circuit, rejecting those groups’ challenge to the Affordable Care Act’s contraceptive mandate.   Justice Samuel A. Alito, Jr., had temporarily put that ruling on hold last April until further legal papers were filed, but had taken no further action since.

The order further describes how the Third Circuit ruling applies while the cert petition remains pending.

The Third Circuit case is Geneva College v. Secretary, decided in February; my coverage of the circuit decision is here.

Court reverses dismissal of challenge to drug-patent settlement

King Drug Co. v. Smithkline Beecham — patent — reversal — Scirica

In 2013, the Supreme Court held in FTC v. Actavis that, when the holder of a drug patent sues a competitor for patent infringement but then settles that suit by making a payment to the alleged infringer — a “reverse payment” — such a payment can violate antitrust laws.

Today, the Third Circuit held that the holding of Actavis applies not only to reverse payments in the form of cash, but also reverse payments in a non-cash form, where the patent holder relinquishes its future right to compete with the alleged infringer by making an authorized generic drug.

Joining Scirica were Ambro and Roth. Arguing counsel were Bruce Gerstein for the appellants, Mark Hegedus for the FTC as amicus, Barbara Mather of Pepper Hamilton for the patent-holder, and Jay Lefkowitz of Kirkland & Ellis for the alleged infringer.

Early coverage in New Jersey Law Journal here and the WSJ Pharmalot blog here.

“How many federal prisoners have ‘strong Johnson claims’ (and how many lawyers will help figure this out)?”

In the other big Supreme Court case today, the Court held in Johnson v. U.S. that the residual clause of the Armed Career Criminal Act statute is unconstitutionally vague.

That’s big news for the Third Circuit (and every other federal court) because it’s going to mean another big round of criminal sentencing upheaval as courts wrestle with how the decision applies to past sentences.

The title of this post comes from Berman’s important post today on Sentencing Law &  Policy today, which raises critical practical post-Johnson questions: who is going to put in the work to find the inmates with Johnson claims, and then who is going to represent them? He writes:

…. I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in feder[a]l prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid.

And in another post today, Berman makes this provocative point:

The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

It will be interesting to see whether Johnson helps nudge courts like the Third Circuit to catch up.

Restrepo committee vote delayed

As feared, this morning the Senate Judiciary Committee postponed a vote on the Third Circuit nomination of L. Felipe Restrepo, without explanation. Apparently this means no vote until after after July 4 at the earliest.

Alliance for Justice yesterday posted here criticizing the judicial-nominations delays. And informative coverage yesterday on Latin Post here.

Not so fast: will Restrepo committee vote happen tomorrow after all?

I posted yesterday that the Senate Judiciary Committee has scheduled a vote on L. Felipe Restrepo’s Third Circuit nomination for tomorrow. The committee’s website still shows the Restrepo vote scheduled, but several sources now are reporting that it may be delayed.

Yesterday, P.J. D’Annunzio reported in the Legal Intelligencer (emphasis added):

A U.S. Senate Judiciary Committee vote to confirm Judge Luis Felipe Restrepo to the U.S. Court of Appeals for the Third Circuit is likely to be pushed back, once again delaying the already-drawn-out confirmation process.

While no official word has been given that a request for a delay has been made by committee members, Beth Levine, spokeswoman for the Judiciary Committee chairman, U.S. Sen. Chuck Grassley, R-Iowa, said in an email that it was safe to assume the confirmation vote for Restrepo will be held over.

In the article, courts activist Glenn Sugameli calls on Senator Toomey to ask the committee chair to hold the vote as scheduled (Keystone Progress has done so as well, as reported here), and this People for the American Way blog post argues that non-committee members have done so in the past.

New opinion — an employee FMLA win in “a sad case”

Hansler v. Lehigh Valley Hospital Network — employment — reversal — Fuentes

The Third Circuit today ruled that the district court erred when it dismissed a former employee’s complaint under the Family Medical Leave Act based on an invalid request for leave, holding that the FMLA required the employer to give the employee a chance to cure any deficiencies.

Ambro joined the panel majority; Roth dissented, beginning, “The majority fashions a new rule to fit a sad case.” Arguing counsel were Samuel Dion for the employee and former Greenberg clerk Andrea Kirshenbaum of Post & Schell (mistakenly listed as Post & Schnell in the opinion) for the employer.

Supreme Court grants cert. to resolve PLRA circuit split that Third Circuit recently joined

The Supreme Court this morning granted certiorari to decide the PLRA inmate-filing-fee-stacking issue that the Third Circuit ruled on in April in Siluk v. Merwin. My post on the panel ruling, which noted the circuit split is  here. The grant came in Bruce v. Samuels, 14-844, from a D.C. Circuit case that came out on the other side of the split, ruling against the prisoner.

The question presented:

Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner’s monthly income regardless of the number of cases or appeals for which he owes filing fees.

It does not appear that the county petitioned for cert in Siluk.

New opinions — CA3 hands Philly CHU a huge win; plus an insurer punitive-damages win

In re: Commonwealth’s Motion to Appoint Counsel Against or Directed to Defender Association of Philadelphia — civil procedure — consolidated cases: affirming some, reversing some — Fuentes

The Third Circuit today rejected the Philadelphia D.A.’s effort to block the Capital Habeas Unit  of the Federal Community Defender in Philadelphia (“the CHU”) from representing the CHU’s capital clients in state court. It is a significant win for the CHU and for Pennsylvania’s death-row inmates.

[Full disclosure: I was an attorney in the Philadelphia CHU before opening my current practice, and I continue to represent capital inmates in PA.]

The CHU’s basic mission is to represent capital clients in federal habeas corpus litigation in federal court. In theory, habeas litigation starts after state-court litigation is all over, but in practice it is common for federal habeas litigants to return to state court to exhaust issues that were missed earlier. When federal habeas petitioners return to state court to exhaust their federal claims, the CHU continues to represent them.

And the CHU’s representation has been uniquely effective — PA has a big death row, but not a single capital inmate has been executed against his will since the death penalty was reinstated in 1976. (Three inmates have been executed who dropped their appeals and volunteered for execution.)  And that drives some prosecutors bananas.

Those prosecutors (along with recently retired PA Supreme Court Chief Justice Castille) have gone to war to try to block the Philly CHU from appearing in state court. The latest battle in that war is this case. The Commonwealth and various counties asked state judges to block the CHU from representing their clients in state court. The CHU — represented by Wilmer and Pepper Hamilton — fought back, removing the 7 cases to federal court and then asking the federal courts to dismiss. The district courts split.

Today, a unanimous panel held that the CHU’s removal to federal court was proper, that the prosecutors’ efforts to disqualify the CHU were pre-empted by federal law, and that the CHU was entitled to dismissal. If the Commonwealth doesn’t seek cert I’ll eat my keyboard.

Joining Fuentes were McKee and Greenaway. McKee also concurred separately. Arguing counsel were Hugh Burns of the Philadelphia D.A. for the Commonwealth and Paul Wolfson of Wilmer for the CHU.

McKee’s concurrence begins:

Although it does not alter our legal analysis of the issues before us, it is difficult not to wonder why the Commonwealth is attempting to bar concededly qualified defense attorneys from representing condemned indigent petitioners in state court. A victory by the Commonwealth in this suit would not resolve the legal claims of these capital habeas petitioners. Rather, it would merely mean that various cash-strapped communities would have to shoulder the cost of paying private defense counsel to represent these same petitioners, or that local pro bono attorneys would have to take on an additional burden. And it would surely further delay the ultimate resolution of the petitioners’ underlying claims.

And concludes:

Though this dispute has been cloaked in claims of state authority and appeals to principles of federalism, I am unfortunately forced to conclude that this suit actually arises out of simple animosity or a difference in opinion regarding how capital cases should be litigated. Given the costs of capital litigation and the very real stakes for the petitioners in these cases, it is extremely regrettable that this debate has now played out in our judicial forum.

An extraordinary case.

Wolfe v. Allstate Property — insurance — partial reversal — Rendell

The Third Circuit today decided an interesting appeal involving insurance coverage of punitive damages. Under Pennsylvania law, a person cannot insure herself against punitive damages. Here, a person insured by Allstate got drunk rear-ended Wolfe. Wolfe sued, and Allstate made a low settlement offer. At trial, the jury awarded compensatory damages (which Allstate paid) and $50,000 punitive damages (which only the insured owed because the policy did not cover punitive damages). Wolfe agreed not to collect the punitive damages from the insured, and in exchange the insured assigned his rights against Allstate to Wolfe.

Wolfe then sued Allstate for breach of contract and bad faith. The gist of the suit was that Allstate’s lowball settlement offer prevented settlement and therefore wrongly exposed the insured to a punitive-damages judgment. After a trial, the jury awarded Wolfe $50,000 in punitive damages.

Today, the Third Circuit vacated the punitive damages award, predictively applying Pennsylvania law to hold that punitive damages awarded in an earlier personal-injury suit may not later be recovered in a breach-of-contract or bad-faith suit against the insurer.

Joining Rendell were Jordan and Lipez CA1 by designation. Arguing counsel were William Carlucci for Wolfe and Marshall Walthew (a former Sloviter clerk) of Pepper Hamilton for Allstate.

Restrepo scheduled for committee hearing, finally

At long last, the Senate Judiciary Committee has set a hearing for the Third Circuit nomination of L. Felipe Restrepo. The hearing is set for Wednesday, June 10 at 1:30.

Judge Rendell announced earlier this year that she is taking senior status in July, so it’s possible that Judge Scirica’s seat (empty almost two years now) will be filled before Rendell’s opens. Dare to dream.

The unsealed part of yesterday’s sealed Fourth Circuit opinion is all about the Third Circuit

How Appealing readers will have noted this post late last night:

Fourth Circuit issues all but footnote 10 of panel’s opinion under seal, which at least allows the judges to argue over footnote 10’s propriety: It’s thankfully quite rare for a federal appellate court to issue an opinion under seal. It is even more rare for an opinion to be issued under seal except for one footnote. And the reason that footnote wasn’t kept under seal is because it was the subject of a concurrence in part (devoted to explaining why the author didn’t join in the footnote) and a concurrence by the third judge on the panel in strong defense of the footnote.

The opinion does not clearly explain why it is sealed; the appeal appears to arise from a federal criminal prosecution of a Dead Man Incorporated (a Maryland prison gang) member (indictment news release here).

CA3blog readers may be interested to see that much of the unsealed part of the opinion is a discussion of a Third Circuit ruling, United States v. Bonner, 363 F.3d 213 (3d Cir. 2004). The unsealed part of the CA4 panel opinion expresses surprise that the government failed to confess plain error. The dissenting CA4 judge cites Judge Smith’s concurrence in Bonner noting that judges should rarely criticize a legitimate exercise of prosecutorial discretion. The concurring CA4 judge, the irrepressible Senior Judge Davis, counters that actually Judge Smith approved dissenting Judge McKee’s “full-throated”  criticism of the prosecution in Bonner, and says:

Unlike judges, such as our concurring friend, who apparently believe it is never appropriate for those of us in the Judicial Branch to express reservations or disapproval of manifestly irregular, if not illegal, “strategic choices” by prosecutors, I believe judges need to say more, not less, to the political branches about the serious deficits in our criminal justice system. Judges McKee and Smith plainly agree . . . .

Don’t see that every day.

Third Circuit reversed in Facebook-threats case

The Supreme Court today reversed the Third Circuit in Elonis v. United States, holding that it was error to convict Elonis without proving that the defendant had a culpable mental state with respect to whether the statement was a threat.

The Supreme Court opinion is here, the now-reversed CA3 opinion is here, and my prior coverage is here and here.

Tough day for the Third Circuit.

Supreme Court summarily reverses Third Circuit on qualified immunity

The Supreme Court today summarily reversed a 2014 Third Circuit ruling in a prisoner-rights suit. A divided CA3 panel had held that prison officials were not entitled to qualified immunity in an Eighth Amendment suit brought by the estate of a prisoner who had committed suicide. The Supreme Court, in a unanimous per curiam opinion, reversed and held that there was no clearly established right to proper implementation of adequate suicide prevention protocols. USSC assumed that CA3 was correct that circuit precedent can clearly establish a right when that precedent conflicts with other circuits, but ruled that CA3 was wrong about what its own precedent held.

The case was Barkes v. First Correctional Medical in the Third Circuit (circuit opinion here, my summary here), and Taylor v. Barkes in the Supreme Court (opinion here).

New opinion — the “F*** Medicare” case

US v. Kolodesh — criminal — affirmance — Jordan

The Third Circuit today affirmed the conviction and sentence of a defendant convicted of Medicare fraud. The defendant raised a blizzard of different challenges on appeal, but the one the opinion seemed to relish the most was an argument that prosecutor committed misconduct by using a defendant’s recorded statement that “We have to f*** them over this time.” The defendant’s brief termed this the “F*** Medicare Statement,” a phrase the opinion repeated four times in denying the claim.

The opinion repeatedly noted errors and omissions by Kolodesh’s trial and appellate counsel: raising new contentions in the reply brief, repeatedly failing to contemporaneously object, challenging the accuracy of a transcript but “seem[ing] to forget, however, that he stipulated at trial to the truth and accuracy of the transcripts,” twice waiving appellate arguments through cursory briefing, misstating the record, and twice “simply rearguing the weight of the evidence, without pointing to anything that shows the District Court clearly erred.” Coming on the heels of the harsh Lehman Brothers opinion, I wonder if we’re seeing a trend towards a court less reticent about calling out lawyers.

Joining Jordan were Chagares and Barry. The case was decided without oral argument.

New opinion — a reluctant denial of immigration review

Sesay v. Attorney General — immigration — affirmance — Krause

The Third Circuit today held that petitioners who aided terrorist groups are ineligible for asylum even if they acted only under duress. The panel acknowledged that Musa Sesay was himself a victim of terroristic violence who faced “regular beatings and the barrel of a gun,” and “resisted when possible and escaped when he could.” Although “sympathetic to Sesay’s plight,” and “recogniz[ing] the harsh consequences of our holding,” the court denied the petition for review.

Joining Krause were Rendell and Smith. Arguing counsel were Thomas Massucci for the petitioner and Jeffrey Menkin for the government.

New opinion — deciding what “overnight” means

Bonkowski v. Oberg Indus. — civil — affirmance — Cowen

A patient was admitted to a hospital for treatment after midnight and, after comprehensive testing, was released over 14 hours later. The patient was fired from his job, allegedly for being absent due to his hospital visit. He sued under the FMLA, which protects employees from retaliation for qualifying absences, including “overnight” hospital stays. Today, a divided Third Circuit panel ruled that when a patient is admitted and discharged on the same calendar day, his treatment is not “overnight” and thus does not trigger FMLA protection.

Joining Cowen was Greenberg; Fuentes dissented. Arguing counsel were Tiffany Waskowicz for the patient and Erin McLaughlin for the employer.

New opinion — bankruptcy structured dismissals approved by divided panel

In re: Jevic Holding Corp. — bankruptcy — affirmance — Hardiman

The holding of today’s lone case is crisply summarized in the introduction:

This appeal raises a novel question of bankruptcy law: may a case arising under Chapter 11 ever be resolved in a “structured dismissal” that deviates from the Bankruptcy Code’s priority system? We that, in a rare case, it may.

Hardiman was joined by Barry and by Scirica in part. Scirica dissented in part: he would have rejected the structured dismissal here and reversed. Arguing counsel were Jack Raisner for the appellants, Christopher Landau of Kirkland (a Scalia and double-Thomas clerk) for appellees, and Wendy Cox of the DOJ for the US as amicus.

New opinion —

In re Grand Jury — criminal — affirmance — Cowen

The Third Circuit on Friday affirmed a district court order holding a corporation in contempt for failing to comply with a grand jury subpoena. The sole owner and employee of the corporation had asserted a Fifth Amendment self-incrimination challenge to the subpoena. In a footnote, the court mentioned that nothing in Hobby Lobby suggests that the Fifth Amendment applies to corporate custodians.

Joining Cowen were Fisher and Chagares. Arguing counsel were Damian Conforti of Podvey Meanor for the corporation and John Romano for the government.

Restrepo nomination obstacles removed

The Pittsburgh Post-Gazette reported tonight that Senator Pat Toomey has submitted his blue-slip to allow the Third Circuit nomination of L. Felipe Restrepo to move forward. Toomey’s move followed the Judiciary Committee’s announcement today that it had completed its background investigation, which in turn came on the heels of a week of media Toomey-battering over the delay.

Next step: committee hearing. Nothing scheduled yet.

Court upholds core of federal porn-records law

Free Speech Coalition v. Attorney General — First Amendment — partial affirmance — Smith

The Third Circuit today rejected First Amendment facial and as-applied challenges to federal statutes that require any producer of pornography to maintain records listing the name and birth date of each performer. The Court rejected challenges based on the fact that the law, intended to combat child pornography, applies to (more or less) all sexually-explicit visual materials, including purely private and noncommercial productions (such as “sexting” between consenting adults) and those with “clearly mature” performers. The court left the door open to future as-applied challenges involving private productions or clearly mature performers.

Today’s ruling was not a total defeat for the laws’ challengers, as the court struck down a provision allowing warrantless searches of the records and remanded for reconsideration of another provision that the records be stored in an office open 20 hours per week.

Joining Smith were Rendell and Scirica. Arguing counsel were Michael Murray for the challengers and Anne Murphy for the government.

Early blog coverage of the opinion here, H/T How Appealing.

New opinion — upholding denial of overtime pay

Resch v. Krapf’s Coaches — civil — affirmance — Shwartz

The Third Circuit today affirmed a summary-judgment ruling against the plaintiffs in a case involving unpaid overtime brought under the Fair Labor Standards Act and related state law. The court held that the plaintiffs, drivers for a shuttle-bus service, were not covered by the FLSA’s overtime-pay requirement because some of their routes were interstate.

Joining Shwartz were Ambro and Vanaskie. Arguing counsel were Andrew Santillo of Winebrake & Santillo (nice website) for the drivers and Randall Schauer of Fox Rothschild for the company.

New opinion — ERISA attorney-fees reversal

Templin v. Independence Blue Cross — ERISA — reversal — Nygaard

The Third Circuit today reversed a district court denial of attorney fees in an ERISA case, holding that the “catalyst theory” applies and that “some” success was enough to meet it. The court remanded to let the district court apply the right standard.

Joining Nygaard were Ambro and Fuentes. Arguing counsel were Anthony Pauduano for the appellents and Katherine Katchen of Akin Gump and Mark Oberstaedt of Archer & Greiner for the appellees.

More on yesterday’s claim-forfeiture opinion in light of How Appealing’s post

I posted yesterday about Lehman Bros. v. Gateway Funding, a provocative decision that threw out an appellant’s claim for failure to include the relevant transcript.

Yesterday evening, Howard Bashman posted a lengthy comment critical of the decision on How Appealing. Bashman’s post describes the ruling as “harsh” given that the failure to include the transcript was a minor transgression that did not disadvantage the panel because the appellee filed the transcript. He suggested the panel might have been wiser to grant oral argument so it could “deliver[] in-person a message that likely would not be forgotten for quite some time, if ever,” and:

Instead of deeming the issue forfeited, the panel could have simply ordered the appellant to reimburse the appellee for the costs of obtaining and providing the transcript to the court. And the panel could have imposed far more substantial sanctions if the panel believed that any effort to deceive the panel was intentional.

Bashman noted the concern that the ruling could lead to unfair results in future cases:

In a footnote, the appellate court notes that it probably would have reached the same outcome even if the appellant had provided the necessary transcript, whose existence the appellant claims not to have been aware of (although the Third Circuit questioned the credibility of this assertion). Nevertheless, because the panel’s actual holding is that the appellant’s failure to provide the transcript forfeited the issue, in a subsequent case this holding could operate to the detriment of a party that in fact truly was unaware of the existence of the transcript.

He closed:

In the past, the Third Circuit had been hesitant to impose significant sanctions for relatively minor transgressions. Today’s ruling, from three of that court’s newer judges, may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.

I basically agree with Bashman’s criticism of the opinion, but my take is a little different.

In my opinion, it is not at all far-fetched that a lawyer would think that no transcript would be available for a telephone call with a district judge. Especially this lawyer: judging from his web page, Gateway’s lead counsel is a construction lawyer. True, he’s an experienced lawyer, admitted in 1988 and listed on Super Lawyers the past several years, but it is not obvious that his practice has him in federal court very often, let alone dealing with appeals and transcripts. His name does not show up in Google Scholar’s case database for a single Third Circuit case. He has no record of professional discipline in PA (although he was hit with a big sanction in a 2011 E.D. Pa. case for having “in bad faith unreasonably and vexatiously multiplied the proceedings”).

I don’t know the guy, but nothing I’ve seen suggests he was lying when he said he didn’t realize a transcript of the phone call was available, and I think it would have been better had the panel given him a chance to respond beyond his reply brief before throwing haymakers in a published opinion. And I agree with Bashman that, regardless of whether the transcript omission was innocent here, the panel’s opinion could be a dangerous precedent for the future. But I may be less concerned about that because the opinion was careful to describe this as an unusual situation.

I also question whether forfeiture of the claim was the right sanction. The direct victim of a claim-forfeiture ruling is the not the lawyer, it’s the party. Nothing in the opinion suggests the party did anything wrong here. Maybe the panel figured that difference didn’t matter in this case, but the court would have been on stronger ground if it had focused on punishing counsel instead of their client.

Having said all that, I don’t think the panel was wrong to be upset. I just don’t think that the failure to get the transcript is the real issue. The real issue is that, thinking there was no transcript, counsel presented an argument that the panel saw as deceptive. The lower court ruled that counsel had abandoned an issue during the call. Counsel made the choice to challenge that abandonment ruling, and apparently to do so without candor: counsel argued that there was no record to support abandonment, and apparently they did not acknowledge what happened on the call. It turns out that the judge gave counsel many chances to argue that issue, finally asking, “There’s nothing about [the argument at issue] that I should be concerned with, is that right?” And counsel responded, “Not that I can see, Your Honor.”

So if counsel was going to argue on appeal that they had not abandoned the issue below, and if counsel thought the transcript was not available, the brief should have acknowledged counsel’s statements and argued why they did not constitute abandonment. (Well, and if abandonment was a central issue, counsel should have confirmed whether a transcript was available.) Just pretending those statements didn’t exist and arguing “no record” (if that is in fact what appellant did, I haven’t read the briefs), was a very bad strategy.

One of the take-home lessons of this case, in my view, is the importance of appellate counsel. The mistakes counsel apparently made here are mistakes I would never expect from an appellate specialist. Sticking to what you’re good at may cost you some fees, but that’s a small price to pay to avoid a starring role in F.3d.

A fine article on the role of clerks

I don’t often re-post materials posted on How Appealing, on the assumption that anyone into appeals enough to read my modest little blog must also be reading his. (And you should be if you ain’t.)

But here’s an article worth making an exception for, despite its snoozy title: “The Management of Staff by Federal Court of Appeals Judges,” by Duke law professor Mitu Gulati and CA7 judge Richard Posner.

The article is explains how federal appellate judges use clerks, permanent clerks, secretaries, and staff counsel. It describes a standard model and then describes common variations from the model, and its based on about 20 in-person interviews of judges, plus another about 50 phone interviews.

For anyone who practices regularly in federal appeals — especially the many appellate practitioners who did not clerk for federal appellate judges themselves  — this article sheds very useful light on how cases get decided.

Even as a former appellate clerk myself, I have to actively resist the habit of thinking of the judges as the only audience for my briefs. Maybe those judges have seen cases like yours by the dozens, but their clerks haven’t, especially for cases where the briefing is completed in the fall and winter. And, conversely, those clerks often are very adept at spotting your who-cares Bluebook errors.

A brief-writer who ignores the role clerks will play in deciding her case reduces her chances of winning.

New opinion — “This appeal presents us with an opportunity to emphasize the importance of following the rules.”

Lehman Brothers v. Gateway Funding — civil — affirmance — Hardiman

The headline of this post is the first line of today’s opinion, which then continues:

At issue is Rule 10 of the Federal Rules of Appellate Procedure, which imposes certain duties on counsel in preparing the record on appeal. Appellant Gateway Funding Diversified Mortgage Services, L.P. violated Rule 10 when it failed to include in the appellate record a transcript necessary to evaluate its principal claim. We hold that claim forfeited.

Well, that ought to get everyone’s attention, no?

What happened is that, in district court, the judge ruled that an argument had been abandoned by Gateway during a telephonic oral argument. On appeal, Gateway disputed that finding, but it only argued that there was “no record” to support abandonment and it did not order or include a transcript of the argument at issue. But then the appellee included the transcript with its brief, so Gateway argued that its failure to include the transcript was now moot. But “Gateway’s cavalier argument is wrong,” and the omission “at best shows a remarkable lack of diligence and at worst indicates an intent to deceive this Court.” Ow.

Joining Hardiman were Greenaway and Krause. The case was decided without argument, which normally means I don’t list the lawyers, but I’ll save rubber-neckers the click and note that counsel for Gateway was Paul Bucco and Matthew Sack of Davis, Bucco, & Ardizzi.

Court grants en banc rehearing in big capital habeas case

The Third Circuit today granted en banc rehearing in Dennis v. Secretary, an important capital habeas case decided by the panel in February. The panel ruled for the state, reversing a district court grant of habeas relief.

Here was my write-up of the panel opinion:

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.

Guess I get to keep the farm.

Toomey supports Restrepo’s CA3 nomination. Now he’s blocking it.


United States Senator Pat Toomey (Gage Skidmore wikimedia commons cc-by-sa 3.0)

US Senator Pat Toomey is blocking a hearing on the Third Circuit nomination of L. Felipe Restrepo, according to David Hawkings at Roll Call. In a post today, Hawkings reported that PA’s Republican Senator has not returned his blue slip on Restrepo’s nomination. Per Senate procedures, Toomey’s action leaves the nomination in limbo.

This is a shocking. In November,Toomey loudly endorsed Restrepo’s nomination, saying in a press release:

I am pleased that President Obama today has nominated Judge Luis Felipe Restrepo to serve our nation on the Third Circuit Court of Appeals,” said Sen. Toomey.  “As both a federal magistrate and district judge, Judge Restrepo has served the people of Pennsylvania honorably and with distinction.  He also is dedicated to his community by giving his free time to the Make-a-Wish Foundation.  Sen. Casey and I recommended Judge Restrepo to the White House for a seat on the federal district court, and I believe that he will also make a superb addition to the Third Circuit based in Philadelphia.

Now, almost six months later, Toomey’s office told Hawkings the Senator still supports the nomination and “hopes it gets done this year.”  His office “declined to discuss the missing blue slip.”

A follow-up report by Jennifer Bendery that just posted on Huffington Post added this embarrassing exchange:

When asked Tuesday if he’s withholding his blue slip, the Republican senator gave The Huffington Post a confusing answer.

“No, I’m not. Well, let me explain how that works to you. But I’ve got to run for this lunch,” he said, walking away quickly. “But I support his confirmation.”

Toomey said he didn’t have any new concerns about Restrepo and that he would turn in his blue slip. At some point.

“I will be submitting it at the appropriate time,” he said, before disappearing into an elevator.


Hawkins offers an explanation why Restrepo’s nomination is being blocked a senator who supports it:

Progressive advocacy groups and some Senate Democrats suspect Restrepo is being held hostage by the GOP as the latest act of retribution for Obama’s executive action on immigration last fall, which sought to grant an indefinite reprieve from deportation to millions of people in the country illegally.

The initial Republican approach — withholding funding from the Department of Homeland Security unless the president reversed course — ended up as a high-profile collapse this winter, and the Senate GOP’s fallback effort to deny Loretta Lynch’s confirmation as attorney general after she said she would support Obama’s policy has come to naught this spring. Now, some on the right are suggesting the best possible Plan C is preventing new judges on the appeals courts.

Also today, a Philadelphia pastor and activist with People for the American Way had an op-ed on entitled, “Why the holdup on Third Circuit judge nominee?”

H/t Glenn Sugameli of Judging the Environment.

New opinion — revocation of supervised release must proceed before supervision expires

United States v. Merlino — criminal — reversal — Vanaskie

Today, the Third Circuit held that district courts lack jurisdiction to revoke a criminal defendant’s supervised release and impose a revocation sentence when the warrant or summons issues after the term of supervised release has already expired. That’s good news for the defendant here, reputed Philly organized crime boss (and now restaurant maitre d’)  Joseph “Skinny Joey” Merlino. (The court had announced the outcome a couple weeks ago.)

The facts weren’t great for the defense. Merlino’s supervised-release term ran through September 6, 2014. In June of 2014, he was seen “conversing with several convicted felons” at a cigar bar. On September 2, the district court ordered issuance of a summons, but Merlino’s lawyer got the court to postpone the revocation hearing until October, which in turn delayed issuance of the summons. Then in October, Merlino argued that the court now lacked jurisdiction. It is easy to understand why dissenting Judge Shwartz describes Merlino’s win as “an odd result,” and I suspect many defense lawyers whose valid scheduling issues now get ignored will rue the result here.

Joining Vanaskie was Ambro, who concurred separately; as noted, Shwartz dissented. Arguing counsel were Edwin Jacobs for Merlino and David Troyer for the government.

New opinion — the author of the New Jersey Appellate Blog wins an appeal with an interesting procedural issue

Bohus v. — civil — reversal — Jordan

Bruce Greenberg of Lite, Depalma, Greenberg — the author of one of my favorite CA3-oriented blogs, New Jersey Appellate Blog, and an accomplished federal and state appellate lawyer — won an interesting Third Circuit civil appeal today.

The case arose out of some restaurant gift certificates sold online. Plaintiffs alleged the certificates violated various NJ state laws and filed a class-action lawsuit. In a prior appeal, CA3 certified to the New Jersey Supreme Court a question about whether a state law covered gift certificates, and the state court answered that it covered these gift certificates. But then, on remand, the district court ruled that the plaintiffs still lose because the state-court interpretation should not apply retroactively. Applying NJ retroactivity law, CA3 today reversed, holding that the state court’s certified answer applied to the named plaintiffs.

Readers of Greenberg’s blog will recall that this is the appeal where, after oral argument, the panel invited counsel to sidebar to shake the judges’ hands. (That’s similar to the practice in the Fourth Circuit, where the judges all come down from the bench afterwards and shake your hand at the counsel table.) That post, which was picked up on How Appealing, is here.

Joining Jordan were Chagares and Vanaskie. Greenberg argued for the plaintiffs, Michael McDonald of Gibbons argued for the defendants.

Finally a committee hearing for Restrepo nomination?

The Senate Judiciary Committee has announced a nominations hearing for Wednesday, May 6. The committee has not yet announced which judicial nominees will be heard; I’m told by Glenn Sugameli of the Judging the Environment project that that announcement is expected sometime Friday.

Sugameli told me he encourages those concerned to contact Senators Pat Toomey and Bob Casey to see if they have asked Chairman Grassley to include CA3 nominee L. Felipe Restrepo in the May 6 hearing.

New opinion — partial remand in labor-law appeal

800 River Road Operating Co LLC v. NLRB — labor law — partial remand — Rendell

Today’s lone opinion arises out of an election to unionize employees at a health-care company. The union charged the company with several labor-law violations during the election, and ultimately the NLRB sided with the union. Today, the Third Circuit affirmed on two issues but remanded on a third because, it held, the board failed to apply the right test.

The opinion’s opening sentence is not a model of judicial art:

Petitioner 800 River Road Operating Co. LLC, d/b/a Woodcrest Health Care Center (“Woodcrest”), seeks review of the National Labor Relations Board (“NLRB” or “Board”) decision and order (“Order”), which found that Woodcrest violated § 8(a)(1) and (a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 151-169 (“NLRA” or “Act”), by ommitting [sic] various unfair labor practices. Woodcrest Health Care Ctr., 360 N.L.R.B. No. 58 (Feb. 27, 2014).

Joining Rendell were Smith and Krause. Arguing counsel were appellate star Erin Murphy of Bancroft for the company and Jared Cantor for the NLRB.

Update: today the court corrected the typo in the opening sentence. A blog reader?

FRAP committee proposes shorter briefs and tighter deadlines

I’m pretty sure most of my readers also read Howard Bashman’s How Appealing blog. But just in case anyone missed it, Bashman reports that the FRAP Advisory Committee (CA3 Judge Chagares is a member and Penn Law professor Catherine Struve is the reporter) yesterday approved a proposal to cut primary briefs from 14,000 to 13,000 words and to eliminate the FRAP 26(c) 3-day rule.

He notes that the committee

plans to consider in the very near future whether the 14-day period for filing a reply brief should be extended to 17 or 21 days. In addition, the FRAP Advisory Committee intends to send a letter to the chief judges of all the U.S. Courts of Appeals explaining that expanding the time for reply briefs will remain under consideration, and that courts should consider continuing to afford 17 days in which to file reply briefs in the interim.

And he explains:

Four more things must occur before this rule amendment goes into effect. The Standing Committee must approve the amendment. The Judicial Conference of the United States must approve the amendment. The U.S. Supreme Court must sign-off on the amendment. And the U.S. Congress must refrain from vetoing the amendment.

New opinion — civil affirmance

Pollara Group v. Ocean View — civil — affirmance — Jordan

The Third Circuit today refused to consider a challenge to the denial of summary judgment because the movant failed to preserve its factual issues by renewing its arguments in a motion for judgment as a matter of law. The court also rejected an inconsistent-verdicts challenge to the jury’s verdict awarding compensatory and punitive damages.

Joining Jordan were Chagares and Shwartz. Arguing counsel were Andrew Simpson for the appellants and Rhea Lawrence for the appellees.

New opinions — a civil-rights dismissal affirmance and a civil-forfeiture reversal

Two published cases today.

Vargas v. City of Philadelphia — civil rights — affirmance — Jordan

The Third Circuit today upheld dismissal of a civil-rights suit brought against Philadelphia arising from a woman’s horrifying death from an asthma attack when police allegedly blocked the woman from being taken to the hospital. Acknowledging the “tragic” facts, the court held that any seizure by the officers was reasonable under the community caretaking doctrine even though it did not involve a seizure of evidence or a vehicle search. The court also upheld dismissal of the substantive due process, failure-to-train, and false imprisonment claims.

Joining Jordan were Fisher and Greenaway. Arguing counsel were James Hockenberry for the plaintiff and Jane Istvan  (whose webpage indicates she co-authored an article intriguingly titled, “Effective Brief Writing Despite High Volume Practice”) for the city.

Langbord v. U.S. Dep’t of the Treasury — civil asset forfeiture — reversal — Rendell

The Civil Asset Forfeiture Reform Act was enacted in 2000 to curb forfeiture abuse by government. (Mission unaccomplished.) CAFRA requires the government to file a forfeiture-complaint within 90 days of seizure, and here the government, acting badly, did not do so. Today the Third Circuit held that government violated the statute. A divided panel ordered the seized property, two ten double eagle gold coins (a double eagle coin sold at auction in 2002 for over $7.5 million), returned to the people it was seized from, even though they allegedly were not the rightful owners because the coins were stolen from the government.

Joining Rendell was McKee. Sloviter dissented, agreeing that the government violated the statute but “definitely” not agreeing the government had to hand over the coins. Arguing counsel were Barry Berke for the Langbords and Robert Zauzmer for the government.

New opinions — a class-action reversal and an immigration win

Byrd v. Aaron’s Inc. — class action — reversal — Smith

In a significant class-action ruling, the Third Circuit today reversed a district court’s denial of class certification on ascertainability grounds. The panel noted (giant footnotes omitted):

there has been apparent confusion in the invocation and application of ascertainability in this Circuit. (Whether that is because, for example, the courts of appeals have discussed ascertainability in varying and distinct ways, or the ascertainability requirement is implicit rather than explicit in Rule 23, we need not say.)

Joining Smith were Rendell and Krause. Rendell concurred separately to argue:

[T]he time has come to do away with this newly created aspect of Rule 23 in the Third Circuit. Our heightened ascertainability requirement defies clarification. Additionally, it narrows the availability of class actions in a way that the drafters of Rule 23 could not have intended.

Arguing counsel were Frederick Longer of Levin Fishbein for the class plaintiffs and Kristine Brown of Alston & Byrd and Anthony Williott of Marshall Dennehey for the defendants. Thirteen firms are listed as counsel on appeal.

Chavez-Alvarez v. Attorney General — immigration — remand — Smith

Jose Chavez-Alvarez, the same fellow who last week won a major habeas victory granting him a pre-removal bond hearing, this week won again on the merits of his challenge to removal.  The court held that Chavez-Alvarez’s military conviction for sodomy was not a crime for which the term of imprisonment was at least one year, because he received a general sentence for multiple offenses.

Joining Smith were Jordan and Van Antwerpen. Arguing counsel were Craig Shagin of the Shagin Law Group for Chavez-Alvarez (that’s the same firm that represented him in last week’s win) and Kathryn DeAngelis for the government.

New opinion — upholding NJ’s gay-conversion-therapy ban, again

I’ve been on the road for the past couple days so I missed Monday’s published opinion:

Doe v. Governor — civil — affirmance — Sloviter

In this case, the court affirmed dismissal of another challenge to a New Jersey law banning so-called gay-conversion therapy. Smith and Vanaskie joined.

Also yesterday the court published this order vacating summary judgment and a injunction against Wal-Mart, promising an opinion later. The order was signed by Ambro with Vanaskie, and Shwartz also on the panel. Good coverage by Saranac Hale Spencer in the Legal Intelligencer here.

New opinion — divided panel rules for prisoner in filing-fee dispute, deepening circuit split

Siluk v. Merwin — prisoner litigation — reversal — McKee

A divided Third Circuit panel today ruled in a prisoner’s favor in a case involving how indigent inmates who file multiple suits must pay the filing fees. The PLRA requires even poor inmates to pay filings fees in full. That’s $350 in district court, $505 on appeal (UPDATE: the court later amended the opinion to say that the appeal fee when the inmate appealed was $455). To pay off these fees over time, poor inmates must make monthly payments of 20% of their prior month’s income.

So what happens when a poor inmate has 2 filing fees to pay? Is the deduction sequential (20% every month until each fee is paid in turn), or concurrent (40% each month)? The majority today held that the deductions apply sequentially, not concurrently. The majority thus deepened a circuit split on the issue, joining CA2 and CA4 against CA5, CA7, CA8, CA10, and CADC.

McKee was joined by Garth; Chagares dissented. Arguing counsel were Reed Smith associate Paige Forster (a former Fisher clerk) for the inmate and Jeffrey Sandberg (click that link!) for the government. Both the majority and the dissent praised prisoner’s counsel for the quality of their pro bono representation.

Next stop, the Scotusblog petitions we’re watching page.

Happy birthday to blog, happy birthday to blog

One year ago today I started CA3blog. It’s been a fun and gratifying year. In its modest little way, the blog has begun to serve a useful role in as a source of circuit news and occasional amusement.

Selfishly, the best thing about the blog for me has been how it brings me in contact with other Third Circuit lawyers and appellate enthusiasts. I hope that continues.

I’m not sure what the future holds for CA3blog. Should I keep posting on every published case? Focus instead on in-depth posts, like my recent published-opinion-stats post? Try to cajole folks I admire into guest-posting? Post about my own CA3 cases? Hunt down recent clerks to get more insider perspective? Close up shop and go back to spending all my time on my real love, appellate lawyering?

My Magic 8-Ball is hazy. I’d be happy to hear what you think, in comments or offline.

Happy birthday, blog, and thanks for reading.

New opinion — a major immigration reversal

Chavez-Alvarez v. Warden — immigration — reversal — Nygaard

If you are a citizen charged with a crime, you have a right to a hearing about whether you have to stay locked up until your case is decided.

But if you are not a citizen and the government decides to deport you, a federal statute says you stay locked up — in prison, with people convicted of crimes — until your case is decided. No bond hearing, no individualized assessment of flight risk.

But, at some point, the statute that says you don’t get a hearing is trumped by the constitutional guarantee of due process. And so, in two prior cases, Diop and Leslie, the Third Circuit applied case-specific balancing to rule that the long pre-deportation detentions without hearings in those cases were unconstitutional.

Which brings us to today’s case. Jose Chavez-Alvarez — Mexican citizen, lawful permanent resident, Army veteran, father of two sons who are US citizens — has been detained for deportation since 2012. His detention has been lengthy because his legal challenges to deportation have taken a long time to decide. The government argued that, since he is the one who keeps unsuccessfully challenging his deportation, it is his fault that his detention has gone on so long and he is not entitled to a hearing, and the district court agreed.

Today, the Third Circuit reversed. It held that, on the facts of this case, Chavez-Alvarez’s hearingless detention had become constitutionally impermissible after between 6 months and a year. It found that Chavez-Alvarez’s legal challenges to deportation were made in good faith and the government should have recognized they would take time to resolve. The court therefore ordered a hearing within 10 days to determine whether, on the facts of this case, continued detention was warranted.

Joining Nygaard’s lucid opinion were Rendell and Jordan. Arguing counsel were Valerie Burch of the Shagin Law Group for Chavez-Alvarez, Leon Fresco for the government, and Michael Tan for the ACLU as amicus.

Says Fresco’s faculty webpage:

Leon Fresco currently serves as a Deputy Assistant Attorney General at the Department of Justice, where he is in charge of overseeing the Office of Immigration Litigation. In this role, he supervises over 300 attorneys and oversees all civil immigration litigation, both affirmative and defensive, and is responsible for coordinating national immigration matters before the federal district courts and circuit courts of appeals.

Which underscores both the importance of this case and the likelihood that it’s not over yet.

New opinion — a circuit-court GVR, sort of

In re: Blood Reagents Antitrust Litig. — antitrust class action — vacate & remand — Scirica

When the U.S. Supreme Court thinks a lower court ought to reconsider its opinion in light of some later case, it issues a GVR (for Grant certiorari, Vacate, and Remand). It’s a convenient way for the court to enforce its recent cases without the effort of full-blown review.

Usually, that’s not how things work in the circuit courts. If the district court applied the wrong analysis, the appellant still needs to show why it should win under the right analysis.

But usually is not always, and today’s lone CA3 published opinion is one of the exceptions. Here, in an antitrust class action, the district court granted class certification and the defendants appealed. After the district court’s ruling, the Supreme Court issued Comcast Corp v. Behrend, a class-action opinion reversing the Third Circuit. The defendants here argued that the class-certification ruling violated Comcast.

Today, the Third Circuit agreed. Scirica, the circuit’s class-action-law guru, wrote that the district court “had no opportunity to consider the implications of Comcast” and that some of district court’s reasoning violated Comcast. The court also held that rigorous application of Daubert is required at the certification stage. But instead of deciding whether class certification was appropriate, the court vacated and remanded.

That approach may be uncommon, but this case shows why it makes sense. Courts of appeal function best when they have a lower-court opinion that tackles the key issues. When the lower-court opinion was based on precedent since overruled, especially in a complicated case, remand makes sense. Interesting case.

Joining Scirica were Smith and Chagares. Arguing counsel were Paul Saint-Antoine of Drinker Biddle for the defendants and Jeffrey Corrigan of Spector Roseman for the class.

New opinions — foreclosure-suit limits and an invalid immigration regulation

Two published opinions today.

Kaymark v. Bank of America — foreclosure / consumer — reversal — Fisher

After a homeowner defaulted on a mortgage, the bank foreclosed. The foreclosure suit included demands for certain fees that had not been incurred yet. The homeowner then brought suit, alleging that these demands violated the Fair Debt Collection Practices Act. The district court dismissed, but today the Third Circuit reversed in part. The court held that the FDCPA applies to mortgage complaints, not just debt-collection letters, and held that the homeowner adequately pled an FDCPA violation when he alleged that the bank sued for fees it had not yet incurred and did not disclose that these fees were estimates. The court affirmed dismissal of other claims.

Joining Fisher were Fuentes and Krause. Arguing counsel were Michael Malakoff—  for the homeowner, Thomas Allen (a UNC law alum!) for the bank, and Jonathan Bart for the law firm that filed the foreclosure suit,

Shalom Pentecostal Church v. Secretary DHS — immigration — affirmance — Krause

The Third Circuit today struck down an immigration regulation. The underlying statute permits certain immigrant religious workers to get a visa if (among other requirements) they have been carrying on religious work for the two years before seeking the visa. The regulation limited the statute by providing that the two years of religious work must have been done while lawfully in the country. The district court struck down the regulation’s limitation as ultra vires, and today the Third Circuit — apparently the first circuit to reach the issue — affirmed. The court also rejected the government’s standing arguments, and it remanded for further proceedings.

Joining Krause were Rendell and Greenaway. Arguing counsel were William Stock for the immigrant and Geoffrey Forney for the government.

More on published opinions

Professor David Cleveland has posted this follow-up on the Appellate Advocacy Blog to my recent post about the Third Circuit’s low published-opinion numbers.

He writes:

Matthew suggests that judicial vacancy is the the likely reason for the Third Circuit’s recent spike in its unpublished opinion rate to 92.3%. That seems accurate, though the Third has been hovering in the high-80s for a while now. Judicial vacancy may have pushed them up to the low-90s where the high-volume circuits are.

The Third Circuit last year issued the fewest published opinions of any circuit, again

The new AOC statistics are out. They’re a trove for appeals-nerds like me, and I’ll probably have a couple posts about them. First up: a look at the stats for published and unpublished decisions.

The big news? In 2014, for the second year in a row, no circuit issued fewer published opinions than the Third Circuit.

CA3 issued 177 published, signed opinions last year. The next lowest was CA2, with 210. So CA3 isn’t just the lowest, it is the lowest by over 15%. By contrast, there were 3 circuits that published over 500 opinions (CA7, CA8, and CA9). (All the 2014 data I’m using here is from report table B-12, which in prior years was S-3.)

Except for CA3, all the circuits fall into one of two categories: the ones like CA9 with lots of cases and a high unpublished-decision rate, and the ones like DC with fewer cases and a lower unpublished-decisions rate. CA3 is an outlier because it doesn’t have lots of cases relative to other circuits but still has a high unpublished rate.

Here are some numbers.

92.3% of CA3 dispositions were unpublished last year, which is slightly lower than CA4 and CA11 and only a little higher than CA6 and CA9. But these other circuits with high rates of unpublished dispositions all decide more cases. So, for example, even with a higher unpublished-cases rate, CA4 still issued 217 published opinions, 40 more than CA3 did.

Meanwhile, CA3 terminated a total of 2493 cases last year. That was more than five other circuits: DC (634), CA1 (942), CA7 (1902), CA8 (2348), and CA10 (1457). But all of those circuits issued unpublished decisions at far lower rates than CA3’s 92.3%: DC (54.1%), CA1 (64%), CA7 (63.4%), CA8 (75.2%), and CA10 (79.1%). And the other circuits joining CA3 above 90% unpublished all have a lot more cases than CA3’s 2493: CA2 (3111), CA4 (3787), CA5 (5203), CA6 (3460), CA9 (7515), CA11 (3999).

Interesting, no? But what’s the explanation? Is the reason for CA3’s low number of published opinions the judicial emergency?

Maybe. Recall, Sloviter and Scirica both went senior in the summer of 2013; Krause filled Sloviter’s seat last summer, while Scirica’s seat remains open with Restrepo’s nomination stiiiiiill pending. Do the numbers show a sudden drop in published opinions fitting that timeframe? Here:

Year — Number of published signed opinions — percentage unpublished

2009 — 245 — 89.3

2010 — 246 — 89.8

2011 — 214 — 90.9

2012 — 234 — 87.3

2013 — 163 — 93.8

2014 — 177 — 92.3

So CA3 has had low publishing numbers for a while, but things did get more extreme in 2013. And that holds true when you compare CA3 to other circuits: from 2009 to 2012, there were 2 or 3 circuits each year with fewer published opinions. In 2013 and 2014: zero.

So you could make a good case that the Third Circuit’s judicial emergency helps explain its recent low publishing numbers.

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.

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