Tag Archives: Major cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

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

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

 

US v. Carter — criminal — affirmance — Shwartz

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

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

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

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

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

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

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

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

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

 

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

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

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

New Jersey clobbered in sports-betting en banc

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

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

A couple quick observations.

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

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

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

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

Cen v. Attorney General — immigration — reversal — Krause

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

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

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

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

 

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

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

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

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

New opinion — Third Circuit decides a major preemption case

Sikkelee v. Precision Airmotive — civil — reversal — Krause

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

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

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

 

New opinion — Third Circuit upholds NFL concussion-suit settlement

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

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

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

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

New opinion — 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.