Tag Archives: Concurrences and other non-dissenting separate opinions

New opinions — an immigration win and two criminal-appeal affirmances

Rodriguez v. AG — immigration — petition granted — Shwartz

The Third Circuit today granted a Domincan Republic citizen’s petition for review because the conviction that triggered his removal proceedings had been vacated and the notice of removal did not say that his placement in a deferred adjudication program supported removal.

Shwartz was joined by Ambro and Fuentes. The case was decided without argument; winning counsel was Fabian Lima.

 

US v. Robinson — criminal — partial affirmance — Roth

A divided Third Circuit panel today affirmed a criminal conviction but remanded, after the government’s concession of error and with no analysis, for a re-determination of whether the defendant is a career offender. The key issue on appeal was whether a defendant who uses a gun during a Hobbs Act robbery commits a “crime of violence” per 18 USC 924(c). The court held that the gun-use crime qualifies as a crime of violence when the defendant is tried and convicted together of both gun use and robbery.

Roth was joined by McKee; Fuentes concurred in part and concurred in the judgment. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Bernadette McKeon for the government.

 

US v. Galati — criminal — affirmance — Roth

A similar panel affirmed another criminal conviction against a similar challenge brought by the same counsel. The panel expressly followed the Robinson decision described above and described this case as bearing a striking resemblance.

Joining Roth were McKee and Jordan. Arguing counsel were Brett Sweitzer for the defendant and Mark Coyne for the government.

 

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.

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

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

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

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

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

 

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

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

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

 

US v. Stevenson — criminal — affirmance — Hardiman

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

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

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

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

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

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

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

An interesting and odd case.

 

Sunday v. AG — immigration — petition denied — Chagares

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

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

Divided panel issues significant abortion-clinic-access ruling

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

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

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

The blockbuster language from Jordan’s opinion:

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

Fuentes disagreed:

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

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

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

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

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