My new job

I’ve joined the Philadelphia District Attorney’s Office as the supervisor of the federal litigation unit. This is the unit in the DAO’s law division which handles federal habeas corpus cases.

Stepping away from a Third Circuit-focused solo practice that I love is hard, but I’m tremendously excited to be joining Larry Krasner’s office. And, happily for me, in my new role I’ll get to continue practicing regularly in my favorite court.

(What does this mean for the blog? To be honest, I’m not sure yet. Stay tuned.)

An updated look at Third Circuit chief judgeship succession

Back in 2016, in my biggest scoop and nerdiest moment as a blogger, I figured out that Judge McKee stepped down early as the Third Circuit’s Chief Judge so that Judge Smith could become chief.

In that 2016 post, I worked out how the circuit’s chief judgeship succession would go, assuming everyone stays on the court, serves as chief when eligible, and serves their full eligibility:

2016 – 2021  Smith

2021 – 2028  Chagares

2028 – 2035  Hardiman

2035 – ?   [to be determined — no judge who’s currently on the court]

So, four-plus years later, here’s what the updated assuming-no-surprises succession looks like:

2016 – 2021*  Smith

2021 – 2028  Chagares

2028 – 2035*  Hardiman

2035 – 2041* Matey

2041 – ? [to be determined — no judge who’s currently on the court]

* Not full seven-year term due to age-70 cutoff.

Strikingly, in this scenario three judges appointed by President George W. Bush will serve as the Third Circuit’s chief, while none appointed by President Obama will.

Third Circuit adopts new procedures for sensitive documents

The Third Circuit yesterday entered a new standing order adopting procedures to protect highly sensitive documents. A link to the order is here. Going forward, such documents are filed differently (hard copy only or on a secure electronic device) and stored by the court differently (in a secure paper file or offline). The order states that this move is made “[i]n response to recent disclosures of wide-spread breaches of private sector and government computer systems.”

The order defines “highly sensitive documents” as those involving

(1) Title III applications; (2) initial applications for search warrants; (3) matters of national security; (4) foreign sovereign interests, or cybersecurity; (5) terrorism; (6) investigation of public officials; (7) intellectual property or trade secrets likely to be of interest to foreign powers; or (8) the reputational interests of the United States.

That’s a fairly narrow set, certainly not everything that previously would have been filed under seal on ECF. But if you’re litigating an appeal that involves such materials, be sure you’re up speed on the new procedure.

Judge Greenberg has passed away

Third Circuit Judge Morton Ira Greenberg has passed away. He died on January 28 of non-covid pneumonia. He was 87.

Judge Greenberg was appointed to the Third Circuit by President Ronald Reagan in 1987, and he had been senior status since 2000. He succeeded Judge Leonard Garth and was succeeded by Michael Chertoff for the seat now held by Judge Michael Chagares, Greenberg’s former law clerk.

Judge Greenberg continued to decide appeals until his death. Last fall he authored the panel-majority opinion in a significant case deciding whether the public had the right to audio-record bail hearings that the city of Philadelphia did not record or transcribe. The court recently granted en banc rehearing in the case.

Among current Third Circuit judges, he was the second-longest serving (after Judge Walter Stapleton) and the second-oldest (after Judge Robert Cowen).

Prior to his Third Circuit service, Judge Greenberg was a long-time state-court judge in New Jersey, sitting on the state’s Superior Court for 14 years, first in the trial division and later its appellate division. Prior to that he was a state prosecutor and also spent 11 years in private practice—solo practice, notably. He was born in Philadelphia but grew up in Atlantic City, New Jersey. He graduated from the University of Pennsylvania and Yale Law School.

A warm 2014 profile by his law clerks Cory Brader and Andrey Spektor described Judge Greenberg as a judge whose record ” may appear enigmatic to those who define judges as
either liberal or conservative, yet is entirely consistent with the judge’s profile as an open-minded judicial minimalist”:

Open-minded is perhaps the best way to describe Judge Greenberg’s career as a federal appellate judge. He is not “doctrinaire at all,” says Judge Cowen. “He doesn’t offer kneejerk responses to difficult legal questions. His positions are always thought out.” Speaking at a ceremonial session dedicated to unveiling Judge Greenberg’s official portrait, the late Judge Edward Becker described his good friend as having “one of the clearest and sharpest, most logical minds” that he had ever encountered. Judge (now Justice) Samuel Alito added that Judge Greenberg is “really smart. If he is not a member of Mensa, he should be. He sees connections that others never spot. He recognizes irrelevancies that the rest of us are beguiled by. It is an intellectual challenge to sit with Mort.”

His former clerk Judge Chagares described Judge Greenberg in the profile as “a man of brilliance, fairness, integrity; a real gentleman, with a deep dedication to public service and a sterling reputation on the bench.”

In lieu of flowers, the family requests donations to the Princeton Rescue Squad, 2 Mt. Lucas Road, Princeton, NJ, 08540.

Analyzing what the 2020 elections could mean for the Third Circuit

After last night’s election in Georgia for two Senate seats, with control of the Senate up for grabs, President-elect Biden’s prospects for appointing federal judges are looking suddenly far rosier. As I write this, one Georgia race has been called for the Democratic candidate and the other appears likely to be as well. If that comes to pass, then the Democrats will control the Senate, and instead of two years of McConnell-led stonewalling we’re likely to see the machinery for confirming judges more or less functioning for at least the next two years. That would be a staggeringly important development.

So what does this mean here in the Third Circuit? Let’s take a look.

There are 14 seats (active judges, as distinct from senior-status or inactive judges) on the court. All 14 currently are filled, which means that no new judges can be added until-

  1. an active judge takes senior status
  2. an active judge takes inactive status or retires
  3. an active judge is elevated to the Supreme Court
  4. an active judge is impeached or dies

Of these, the first—judges going senior—is by far the most common, so let’s focus on that. On the Third Circuit, there are three active judges who are eligible to take senior status now: Chief Judge Smith and Judges McKee and Ambro. Chief Judge Smith has stated that he will remain chief (and thus remain active) until December of this year, when he will be succeeded by Judge Chagares. To my knowledge, none of the three have otherwise announced their intentions

Chief Judge Smith (Pa.) was nominated by Bush II and is generally seen* as a moderate conservative. Judge McKee (Pa.) was nominated by Clinton and is generally seen as a liberal. Judge Ambro (Del.) also was nominated by Clinton and is generally seen as a moderate liberal.

In addition to the three currently eligible, two more will become eligible to go senior during the current Senate, both in the fall of 2022: Judges Jordan and Greenaway, Jr.. Judge Jordan (Del.) was nominated by Bush II and is generally seen as a conservative, Judge Greenaway, Jr. (N.J.) was nominated by Obama and generally is seen as a moderate liberal.

In sum, 5 of the court’s 14 active judges will be eligible to take senior status and thus open their seat to be filled by the incoming administration. Of these 5, 3 were nominated by Democratic presidents, 2 by Republicans.

I’ve been a broken record expressing my view that Trump “flipping” the Third Circuit—that is, the court going from a majority of its active judges having been nominated by Democratic presidents to a majority nominated by Republican presidents—isn’t as big a deal as many on both sides suggest. My view would remain the same if Biden filled all 5 senior-eligible seats and the court went from its current 8-6 Republican majority to a 7-7 even split. A fundamentally centrist court will remain so.

Predicting what individual judges actually will do would be foolish. We have no idea. I doubt all of the judges have even decided themselves. I don’t think many informed observers expect those decisions to play out along neat nominating-party lines. I predict there will be openings—beyond that, we’ll see.

Recent senior-status decisions of Third Circuit judges offer some perspective:

  • Judge Vanaskie (Obama) went senior shortly after becoming eligible and his seat was filled by Trump;
  • Judge Fisher (Bush II) went senior shortly after Trump’s inauguration after being eligible to do so through most of Obama’s presidency and his seat was filled by Trump;
  • Judge Fuentes (Clinton) went senior shortly after becoming eligible at the end of Obama’s 2nd term and his seat was filled by Trump;
  • Judge Rendell (Clinton) went senior shortly after becoming eligible with a year and a half left in Obama’s second term, and when Obama’s nominee was blocked the seat was filled by Trump;
  • Judge Scirica (Reagan) went senior early in Obama’s second term after being eligible since early in Bush II’s second term and his seat was filled by Obama.

To me, all that mainly just reinforces the view that judges’ individual decisions are unlikely to play out along mechanical partisan lines.

As for who the Biden administration would nominate for any Third Circuit openings, that too is tough to predict. A recent (paywalled) Law360 article looking at that question nationally mentioned five Third Circuit candidates: EDPA Judge Wendy Beetlestone, Rebecca Haywood, Nilam Sanghvi, Ilana Eisenstein, and Catherine Struve. It’s certain that many others will receive serious consideration.

One thing I’m certain of: Biden should expect intense pressure to nominate women to the Third Circuit. Only 2 of the court’s current 14 active judges are women, which in my view is simply unacceptable.

President Trump got to fill four seats on the Third Circuit, three of them formerly held by judges nominated by Democratic presidents. Trump shifted the overall court to the right but I believe he did not transform it. I don’t think Biden will transform the Third Circuit either, and I suspect he’ll shift the court less than Trump has.

After last night, it will be fascinating to see.


* I’m endeavoring to describe here how judges are broadly viewed in ideological terms for the benefit of general readers. Close followers of the court recognize that such labels are of limited value.


The Third Circuit decides a big, contentious, and confusing criminal-appeal en banc

For over six years, I summarized more or less every precedential opinion issued by the Third Circuit, usually the same day they issued. I was always a bit on the fence about whether my case summaries were worth all the effort, but this past May I finally gave it up, probably for good. Other factors contributed, but in the end they fell victim—truly one the least significant victims—of this awful pandemic. Lawyer + blogger was one thing, but lawyer + blogger + full-time parent + stressed-out human was too much. For those who miss the case write-ups, I apologize.

While I’m not summarizing each case any more, I do aim to continue posting here about especially interesting ones. And, yesterday, the Third Circuit issued an especially interesting one. It was an en banc decision in United States v. Nasir, a criminal appeal. Substantively, it’s an important decision for crim-law practitioners, especially on career-offender sentences, Rehaif, and plain error. And the career-offender section contains an interesting discussion of  administrative deference under Kisor & Auer. But I want to focus on two more procedural points.

First, the opinion opens with an opaque footnote that makes it next to impossible to tell who joined what without reading all the opinions, so I want to clarify that.

The defendant raised 5 issues on appeal:

  • the first 3 are decided by the original panel only. They’re in an opinion that’s captioned as an en banc opinion, but those 3 sections (A, B, and C of section II) are not en banc rulings.
  • the 4th issue, the career offender issue in II.D, is decided en banc, unanimously. Deciding it en banc just lets the court overrule a prior precedent. All 16 judges join this part, and Judge Bibas also concurred separately to discuss lenity.
  • the fifth issue, the Rehaif plain-error issue in II.E, is decided en banc too. Here the court split 9 to 7. The majority was Jordan + McKee, Ambro, Greenaway, Jr., Krause, Restrepo, Matey Scirica, and Rendell. Matey added a concurrence. The dissenters were Porter + Smith, Chagares, Hardiman, Shwartz, Bibas, and Phipps. Both the majority and the dissenting opinions were strongly worded.

Second, I want to offer up my own two cents about how the court structured its decision. As noted, some sections are for the original panel, other sections for the en banc court. That structure is different from how the court has handled this situation in the recent past. For example, in the 2018 Douglas en banc, the court issued two separate decisions simultaneously—one en banc, deciding the en banc issues, and one by the original panel, deciding the remaining issues. In my view, the Douglas approach is very much preferable to the approach taken in Nasir. I predict persistent confusion about the fact that three subsections of yesterday’s opinion aren’t en banc.

My in-the-weeds niggling aside, it’s an impressive decision, written clearly and with vigor all around. The majority plants its flag squarely opposed to most of the other circuits on the Rehaif plain-error issue, so it will bear watching how other circuits, and the Supreme Court, react.


“Our darkest time has been his finest hour.”

The Third Circuit issued an opinion on Friday, perhaps you heard?

It was a dramatic day that capped a dramatic season for the court, which found itself the epicenter of President Trump’s efforts to upend the results of the 2020 presidential election in the courts. A link to Friday’s opinion—authored by Judge Bibas and surely among the most important opinions in the court’s history—is here.

[Disclosure: I was among counsel that filed an amicus brief in the appeal urging affirmance.]

I posted commentary about the appeal and about the election litigation generally on Twitter, much of it aimed at explaining what was happening to the non-lawyer public.

On Saturday, I posted a long, admiring thread on Twitter discussing Chief Judge Smith and his role in the election litigation. It began:

50 tweets later, it ended:

If you’re interested in reading the whole thread, here is a link that makes it easier to read.

The response to my effort to tell Chief Judge Smith’s story has floored me. I’ve wanted to tell it for years now, and I can’t express how satisfying it is that it’s resonated with so many other people, too.

Video CLE this Tuesday: tips for appeals in Pa. state and federal courts

Third Circuit practitioners may be interested in a live webcast CLE program that the Appellate Courts Committee of the Philadelphia Bar Association is hosting on this Tuesday, October 13 at 12:30. The topic: Essential Tips for Appeals in Pennsylvania State and Federal Courts. Details and registration are at this link.

From the event announcement:

The program will cover the key elements and rule requirements for appellate litigation in the Pennsylvania appellate courts and the U.S Court of Appeals for the Third Circuit. This CLE program is designed for those trial lawyers and litigators who do not regularly handle appeals.  The panel will review the nuts and bolts of appeals, with helpful practice pointers, and rule references.

The presenters:

  • Chip Becker of Kline & Specter, the immediate past president of the Third Circuit Bar Association who happens to be the son of legendary Third Circuit Judge Edward Becker;
  • Andra Laidacker of Kline & Specter too, a member of the Pa. Supreme Court Appellate Courts Procedural Rules Committee and former Pa. Supreme Court law clerk; and
  • me.

I’m looking forward to participating and hope you’re able to join us on Tuesday.

“Threats have greatly multiplied over the past five years”—judiciary seeks security improvements in the wake of the attack on Judge Salas’s family

Earlier, this year, a man posing as a delivery driver went to the New Jersey home of U.S. District Judge Esther Salas. In reality, the man was a self-described “anti-feminist” lawyer who had called Judge Salas as “a lazy and incompetent Latina judge appointed by Obama.” The man reportedly became fixated on Judge Salas because he was unhappy with her handling of a lawsuit he’d filed arguing that it violated mens’ rights not to subject women to the draft.

The man rang the doorbell of Judge Salas’s home. Her husband and her son opened the door, and the man opened fire. Her husband was shot three times and survived. Her son, who tried to protect his father, was shot through the heart and died. Judge Salas detailed the horrifying attack on her family in their home in this video.

This tragedy is not unique. It was preceded by the targeted murders of Judge John Wood (WD Tex.) in 1979 at his home, Judge Richard Daronco (SDNY) in 1988 at his home, Judge Robert Vance (CA11) in 1989 at his home, and family members of Judge Joan Lefkow (ND Ill) in 2005 at her home.

In the wake of the attack on Judge Salas’s family, the Judicial Conference of the United States has recommended a package of concrete measures Congress can take now to improve judicial security:

 (1) seeking legislation to enhance the protection of judges’ personally identifiable information, particularly on the internet; (2) supporting the development of a resource, in coordination with the U.S. Marshals Service, to monitor the public availability of judges’ personally identifiable information and potential and actual threats; (3) supporting additional appropriations for the U.S. Marshals Service to replace and sustain home intrusion security systems installed in judges’ homes with current security capabilities and technologies; (4) supporting increased appropriations for the U.S. Marshals Service to hire additional Deputy U.S. Marshals in accordance with the District Staffing Model; and (5) supporting a direct appropriation to the Federal Protective Service to fund required upgrades of security cameras at U.S. courthouses. A sixth recommendation seeking legislation to eliminate the sunset provision which grants the Judicial Conference authority to redact financial disclosure reports has been a goal of the Judicial Conference for many years.

In a September 4 letter to Senate leaders, Judge David McKeague and Judicial Conference secretary James Duff put it plainly: “Threats against federal judges are increasing and it is imperative that the Judicial Branch and Legislative Branch work together to take action to prevent another tragedy involving judges and their families.”

My view: measures like keeping federal judges’ home addresses off the internet and installing modern security systems in their homes are basic, commonsense steps. Even in these contentious times, protecting the lives of federal judges and their families should be something we all can agree on. Lawyers should speak up in support of these measures, and Congress should enact them without delay.

Because Judge Salas is right:

My family has experienced a pain that no one should ever have to endure. And I am here asking everyone to help me ensure that no one ever has to experience this kind of pain. We may not be able to stop something like this from happening again, but we can make it hard for those who target us to track us down.

“Let me be clear and tell you firsthand—this is a matter of life and death,” she said. “And we can’t just sit back and wait for another tragedy to strike.”

Temple Law announces exciting new Third Circuit clinic

Temple University’s Beasley School of Law announced this week the creation of a new clinic focusing on Third Circuit appeals. The clinic will focus on pro bono immigration appeals, but students may also work on prisoners’ rights and habeas cases, too.

The clinic will be taught by Temple Law professor Mary Levy and will partner with the Philadelphia-based Tucker Law Group.

From the announcement:

The clinic will be taught by Professor Mary Levy, who noted that while litigants in immigration and civil rights appeals have a much greater likelihood of success if they are represented by counsel, high quality, affordable representation is scarce. Levy expressed enthusiasm for the clinic as an “excellent opportunity to fill that gap by marshalling our exceptionally talented upper level students to provide pro bono representation while allowing them a ‘real world’ opportunity to utilize the advocacy skills they learned at Temple Law.”

This is splendid news, and I can’t wait to see the clinic students in action.

What the 2020 presidential election means for the Third Circuit

So if you haven’t heard there is a presidential election this fall.

Four years ago, I wrote about what the 2016 election would mean for the composition of the Third Circuit, predicting that if Trump won the court’s ideological center of gravity would shift substantially to the right. That’s proving accurate, with President Trump having filled 4 of the court’s 14 seats (formerly occupied by Judges Rendell, Fisher, Fuentes, and Vanaskie) with Judges Bibas, Porter, Matey, and Phipps.

So what impact will the 2020 election have on the Third Circuit?

It’s impossible to know with any confidence. With all 14 seats now filled, openings will emerge only if individual judges choose to go senior (or are elevated to the Supreme Court, or go inactive, or retire, or, morbidly, die). As is typical, none of the court’s judges have announced when they plan to do that.

So we just don’t know. But we can make some guesses.

Right now, there are three Third Circuit judges eligible to take senior status: Chief Judge Smith and Judges McKee and Ambro. Smith became eligible in 2016, McKee in 2012 (but was Chief through 2016), and Ambro in 2015. Smith became Chief in 2016 and his terms runs through 2023.

Between now and the end of the next presidential term in January 2025, two additional Third Circuit judges will become eligible to go senior: Judge Jordan in 2022, and Judge Greenaway, Jr. in 2022. (Judge Restrepo turns 65 in 2024 but won”t meet the rule of 80 until 2026).

Pause here to note that two of President George W. Bush’s nominees (Judges Chagares and Hardiman) still will not be eligible to go senior during the next term. If every judge went senior when they became eligible, two of Bush’s nominees would remain active judges later than all but one of Obama’s five nominees!

Pause also to observe that the election could impact the court’s make-up in another big way, if Congress adds new judgeships. Proposals to do that have been floated on both the right and the left. We’ll see.

Anyway. Assuming nothing surprising between now and inauguration day, then, there will be 5 Third Circuit judges eligible to go senior during the next presidential term:

  • Smith (68)
  • McKee (73)
  • Ambro (70)
  • Jordan (62)
  • Greenaway (62)

Two of those judges hold Pennsylvania seats (Smith and McKee), two Delaware (Ambro and Jordan), and one New Jersey (Greenaway). Two were nominated by a Republican president (Smith and Jordan by GWB), three by Democratic presidents (McKee and Ambro by Clinton, Greenaway by Obama). Judges McKee and Greenaway are the court’s only two Black judges.

My guesses?

If President Trump remains president, which of the five would go senior? My guess is one, Judge Jordan. I’m tempted to say zero, but the fact that both Judge Fisher and former Judge Vanaskie chose to go senior during Trump’s first term makes me distrust my gut on that.

If Joe Biden becomes president, who will go senior? I suspect that could depend on what the next Senate looks like. To keep things simpler, let’s assume that the Democrats gain and keep a Senate majority and don’t honor GOP blue slips so that Biden’s nominees are likely to be confirmed. My guess in that scenario: all five.

How confident am I in these predictions? Not at all, actually. My phone ain’t ringing off the hook with judges confiding their future retirement plans. And I sure was wrong about whether Vanaskie would let Trump fill his seat.

Anything could happen.

A glimmer of good news for people in prison seeking early release

U.S. v. Harris — criminal / sentencing — reversal — per curiam

Today, a rare bit of good news from the Third Circuit for incarcerated people seeking sentence reductions.  Sentence-reduction motions are one of the main tools available for fixing too-long sentences and for releasing inmates facing heightened risk from the covid pandemic.

A motion for reduction of a criminal sentence under 18 USC § 3582 — often referred to as a compassionate-release motion — must satisfy an administrative exhaustion requirement. That requirement provides in relevant part:

the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment

To “fully exhaust” a request, one must seek informal resolution, then submit an initial formal request to the prison, then wait for it to be denied (it’s always denied), then appeal the denial to the regional director, then wait for the appeal to be denied, then submit another appeal to the general counsel, and then wait for that to get denied. Good times.

Anyhow, the issue in this appeal was about how to interpret the compassionate-release statute’s administratative-exhaustion requirement. Specifically: if the BOP denies the request within 30 days, is the federal-court-after-30 days option still available? Or is the 30-day option available only if the BOP hasn’t done anything yet, so that if prisons deny the request within the 30 days then prisoners are locked into administratively exhausting all the way through before they can get to court?

Today, the Third Circuit held that a prisoner may file a compassionate-release motion in court 30 days after submission of the administrative request, even if prison denies it within the 30 days. The court relied on the plain text of the statute as well as the government’s concession on appeal.

The panel for the unsigned opinion was Shwartz, Restrepo, and Greenberg. The appeal was decided without oral argument.

New opinion — union-fee clawback appeal results in fractured ruling in favor of the unions

Diamond v. Pa. State Ed. Assoc. — civil / labor — affirmance — Rendell

After the Supreme Court overruled its prior precedent and struck down state laws that allowed public-sector unions to collect fair-share fees from non-members who benefited from the union’s work, a new round of litigation emerged where the non-members then sued for refunds of the fair-share fees they’d paid in the past. Today’s lone case involves two such appeal, one brought by teachers and another by state employees.

In a fractured ruling, the Third Circuit today ruled in favor of the unions, denying refund of the fair-share fees. In the lead opinion, Judge Rendell concluded that the plaintiffs’ claims failed because the fees had been collected in good faith under unambiguous then-controlling law. Concurring in the judgment, Judge Fisher disagreed that good faith was a defense to § 1983 liability but concluded that a similar-but-narrower common law defense that was available when the statute was passed in 1871 foreclosed the plaintiffs’ claims. Judge Phipps dissented, also rejecting any good-faith defense and disagreeing that Judge Fisher’s common-law defense would apply on the facts.

Arguing counsel were Leon Dayan of D.C. for one union, Jonathan Mitchell of Texas for one group of challengers (note he is not listed in the conventional format in the opinion caption), Casey Pitts of California for the other union, and Brian Kelsey of Illinois for the other group of challengers.

New opinions

This post catches up on opinions issued earlier this week.

Hope v. Warden York County Prison — immigration / covid — reversal — Hardiman (8/25)

In early April, the Chief Judge of the Middle District of Pennsylvania, nominated by George W. Bush, granted release to 22 people at heightened risk from covid infection who were being held in immigration custody in two Pa. prisons.

The Third Circuit held that the district court erred in initially granting relief by ex parte temporary restraining order, subsequently requiring the government to meet the higher reconsideration standard, and violating other provisions of Civil Rule 65. The Third Circuit also ruled that the district court abused its discretion when it found reasonable likelihood of success on the merits and in its evaluation of irreparable harm, the balance of harms, the public interest, and remedy. I can’t recall ever seeing a Third Circuit opinion that found error on so many different grounds.

Hardiman was joined by Smith and Scirica. The opinion noted that Judge Shwartz recused. Arguing counsel were Scott Stewart for the government and Witold Walczak of ACLU-PA for the petitioners.


Romero v. A.G. — immigration — affirmance — Rendell (8/25)

The Third Circuit upheld an immigration judge’s determination that an immigrant from Mexico did not have a reasonable fear of torture or persecution.

Joining Rendell were Greenaway, Jr., and Shwartz. The appeal was decided without oral argument.


Delade v. Cargan — civil rights — reversal — Porter (8/25)

This appeal arose from a strange arrest. During a manhunt following a shooting at a Pa. state trooper barracks, officers received a report a particular man was walking down a highway 15 miles a way carrying a rifle. When police ran the man’s name, the found that he had an outstanding warrant in Florida but that the warrant did not seek extradition back to Florida. So the officer called up Florida authorities, persuaded them to change to warrant to one seeking extradition, and then arrested the man based on that extradition warrant.

After that charge was later dropped, the man sued, alleging that his arrest violated his Fourth and Fourth Amendment due process rights. The district court granted the summary judgment for the officer on the Fourth Amendment claim but not the due process claim.

The Third Circuit reversed, holding that the officer was entitled to summary judgment on the due process claim too because unlawful-arrest and unlawful-pretrial-detention claims all fall under the Fourth Amendment only. Specifically, it held that unlawful-detention claims are not cognizable as due process claims for detention occurring before the detainee’s first court appearance, a conclusion it said was compelled by a Supreme Court dissent by Justice Alito and tracks the Fourth Amendment’s original public meaning.

Joining Porter were Chagares and Fisher. Arguing counsel were Danielle Mulcahey of Wright Reihner & Mulcahey for the arrested man and Michael Scarinci of the Pa. A.G.’s office for the trooper.


Weimer v. County of Fayette — civil rights — partial reversal — Fisher (8/25)

A woman was convicted in Fayette County, Pa., of murder and spent 11 years in prison before she was exonerated. She then sued the people she alleged were responsible for her wrongful conviction, including the former county DA, Nancy Vernon, who had participated in the investigation as well as the prosecution. The former DA sought dismissal of the claims against her based on absolute and qualified immunity. When the district court allowed some of the claims to proceed to discovery, the former DA appealed.

The Third Circuit reversed in part. It held that the former DA was not entitled to absolute immunity for acts that were investigatory rather than prosecutorial. The former DA was entitled to qualified immunity for two of the claims (for failure to intervene in the reckless police investigation and for ordering further investigation into bite-mark junk-science evidence) for lack of clearly established law and remanded for further proceedings.

Joining Fisher were Hardiman and Rendell. Arguing counsel were Joseph Culleiton of Blank Rome for the woman and  Marie Jones of JonesPassodelis for the former DA.


Defense Distributed v. A.G. — civil / Second Amendment — dismissal — Shwartz (8/25)

The lucid introduction:

Defense Distributed, the Second Amendment Foundation (“SAF”), and other firearm interest organizations, together with one of their members (“Plaintiffs”), challenge the New Jersey Attorney General’s efforts to prevent unregistered and unlicensed persons from distributing computer programs that can be used to make firearms with a three-dimensional (“3D”) printer. When Plaintiffs sued in the United States District Court for the District of New Jersey, the same claims by some of the same plaintiffs were already pending in the United States District Court for the Western District of Texas (“the Texas action”). Plaintiffs moved for a preliminary injunction in New Jersey, but the District Court stayed the proceedings until the Texas action was resolved and dismissed the injunction motion. Plaintiffs appeal the District Court’s orders, asking us to direct that Court to decide the motion for a preliminary injunction. Because the District Court’s stay and dismissal orders are not appealable, we will dismiss for lack of appellate jurisdiction. [Footnote omitted]

Judge Phipps dissented, arguing that denying review renders orders staying proceedings based on the first-filed rule free of meaningful appellate review.

Joining Shwartz was McKee, with Phipps dissenting. The appeal was decided without oral argument.


Starnes v. Butler Co. Court of Common Pleas — civil rights — partial affirmance— Hardiman (8/24)

A woman employed by Butler County, Pa., alleged that a judge in the county, Thomas Doerr, sexually harassed her, coercing her into a years-long sexual relationship in exchange for her job and then retaliating against her after the relationship ended and she filed a harassment complaint. When the woman sued, the judge sought dismissal, which the district court granted in part.

The Third Circuit affirmed in part, holding that the judge was not entitled to qualified immunity from the woman’s claims that (a) he violated right to equal protection by discriminating against her on the basis of sex, (b) he created a hostile work environment, (c) he violated her First Amentment rights to free expression and petitioning the government. The court ruled in the judge’s favor on one count, holding that he was entitled to qualified immunity on her claim that the judge violated her right to free association by either forcing her into a sexual relationship with him or by interfering with her subsequent relationship with her future husband.

Joining Hardiman were Rendell and Fisher. Arguing counsel were Karin Romano of Thomas Thomas & Hafer for the judge and Edward Olds of Olds Russ for the woman.

New opinions

The Third Circuit issued 2 published opinions today, 2 yesterday, 7 on Tuesday, and 1 Monday. Offhand I can’t remember the court ever cranking out 7 opinions in a single day before. (UPDATE: “only” 5 opinions, actually; one was an order amending and one an order granting panel rehearing). In this post I’ll summarize the opinions issued today and yesterday, and (hopefully!) I’ll get the rest in a later post.

Sierra Club v. EPA — environmental — reversal — McKee (8/27)

The Third Circuit today ruled in favor of the Sierra Club in their challenge to Pennsylvania’s too-lax proposed standards for pollution from coal-burning power plants.

Joining McKee were Bibas and Nygaard. Arguing counsel were Charles McPhedran of Earthjustice for the challengers, Brandon Adkins for the federal government, and Jesse Walker for the state.


Campbell v. Pa. School Boards Assoc. — civil — affirmance — McKee (8/27)

An anti-union activist made controversial online statements and filed an avalanche of records requests, all targeting Pa. school boards and their association. When the school-boards association countered by suing the activist in state court, the activist sued the association in federal court, alleging that the state suit amounted to First Amendment retaliation. The association argued that the Noerr-Pennington doctrine shielded it from liability for filing the state suit.

Today, the Third Circuit upheld summary judgment in favor of the school-district association. It held that the district court erred by requiring the activist to make his Noerr-Pennington showing by clear and convincing evidence, but it nevertheless held that the activist failed to show by a preponderance that the association intended the process (as opposed to the result) of the state suit as a weapon against the activist.

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


Rosen v. Superintendent Mahanoy SCI — habeas corpus — affirmance — McKee (8/26)

This habeas appeal is about the prosecution’s use at a retrial of a defendant’s statements to a prosecution expert made before the original trial. At Rosen’s original trial in Pa. court for murdering his wife, his defense was diminished capacity. Presenting that defense obliged Rosen to submit to a mental-health evaluation by the prosecution’s expert. Rosen was convicted but obtained a new trial on appeal.

At the re-trial, Rosen did not present a mental-health defense. Instead, he planned to testify in his own defense that he hadn’t premeditated or intended to kill his wife. But the trial court ruled that, if he testified, the prosecution could rebut his testimony with his prior statements to the prosecution’s expert. He didn’t testify and was convicted, and his state-court appeals failed.

In federal habeas, Rosen argued that allowing the prosecution to rebut his testimony with his statements to the prosecution expert  violated his Fifth Amendment right to silence. The Third Circuit disagreed, holding that, regardless of the merit of his claim, habeas relief was foreclosed by AEDPA’s limitation on relief because no Supreme Court holding spoke clearly enough to this situation.

Joining McKee were Ambro and Phipps. Arguing counsel were Karl Schwartz of Wiseman & Schwartz for the petitioner and Adrienne Jappe of the Montgomery County D.A.’s office for the commonwealth.


In re: Tribune Co. — bankruptcy — affirmance — Ambro (8/26)

When a media conglomerate declared bankruptcy, its creditors battled over who got paid. One group of creditors argued that their bankruptcy claims had higher priority than certain other creditors because they’d made a deal to that effect, known as a subordination agreement. One provision in bankruptcy law, § 510(a) says that bankruptcy courts enforce subordination agreements the same way that other courts do. But another provision, colorfully known as cram-down, says that sometimes courts can require creditors to accept a resolution of their claims that doesn’t unfairly discriminate “[n]otwithstanding section 510(a).”

The main issue in this appeal is what the notwithstanding phrase means: a group of creditors argued that the bankruptcy court could not cram down a plan that failed to enforce to subordination deal. In a factually and legally dense opinion, the Third Circuit disagreed, holding that a cramdown is not required to strictly enforce subordination agreements and that the plan’s allocation of payment among the creditors did not unfairly discriminate.

Joining Ambro were Krause and Bibas. Arguing counsel were Roy Englert, Jr. of Robbins Russell for the creditor challengers, James Johnston of Jones Day for the media conglomerate, and Jay Teitelbaum of New York for competing creditors.

My essay on opinion typography is in the otherwise-splendid new issue of Judicature

My essay entitled Typography for Judges appears in the new issue of Judicature. Even if you don’t quite share my nerdy enthusiasm for fonts and line spacing, you may still enjoy it because it illustrates good typography using Judge Stephanos Bibas’s opinions.

Readers may notice that this essay is similar to my 2019 blog post about what lawyers can learn about typography from a Bibas opinion. After that post, the good folks at Judicature invited me to adapt it for their judicial audience, and their deft editing improved the original in ways big and small.

Judicature, “the scholarly journal about the judiciary,” is published by the Bolch Judicial Institute of Duke Law School. The current issue, summer 2020, is brimming with interesting pieces, including this one on how courts are coping with Covid and this one on bringing back the 12-person civil jury.

And, of particular Third Circuit interest, the current issue also features highlights from the terrific symposium on judicial independence and the rule of law that Judge Marjorie Rendell spearheaded last fall, all linked here.

[UPDATE: also, the last issue featured Judge Theodore McKee’s article, The Creation and Conclusions of the Third Circuit Task Force on Eyewitness Identifications.]

Did I feel a bit silly about presuming to tell judges how their opinions should look? Indeed I did! But I was flattered to be asked, and, when it came down to it, the opportunity to babble about typography and wave my pom-poms for the Third Circuit proved irresistible.

New opinion — Third Circuit rules that it generally lacks jurisdiction to review BIA’s refusal to consider late appeals

Abdulla v. A.G. — immigration — affirmance — Chagares

When an immigration petitioner misses the deadline to seek review by the Board of Immigration Appeals of the denial of their petition, the BIA has discretion to consider the late-filed appeal. The BIA has said it has the power to conduct this discretionary review (termed self-certification) when the appeal presents “exceptional circumstances,” a standard it hasn’t defined.

In this appeal, the Third Circuit addressed whether it has jurisdiction to review the BIA’s denial of self-certification based on its conclusion that the appeal did not present exceptional circumstances, and it held that it did not. In a similar context (challenges to BIA denials of sua sponte reopening based on extraordinary circumstances) the court had held that BIA discretionary denials were unreviewable unless (1) the BIA relied on an incorrect legal premise, or (2) the BIA limited its discretion via a settled course such that its discretion is reviewable. Assuming these exceptions applied in this context too, the court concluded that the petitioner here would not meet them. The court also rejected two merits arguments foreclosed by prior circuit precedent.

Joining Chagares were Matey and Fuentes. The appeal was decided without oral argument.

It’s August, so here come the opinions

Three precedential opinions today, on top of two yesterday, so I think the annual end-of-clerkships opinion surge is here.

U.S. v. Seibert, Jr. — criminal sentencing — affirmance —Restrepo

The Third Circuit today rejected a man’s challenge to the 30-year prison sentence he received for possessing 1,500 child pornography images. At sentencing, the defense presented a psychological report concluding that the man had “the mind of a small child and does not have the capacity to use rationality to control his impulses,” but the Third Circuit rejected his argument that the sentence he received was substantively unreasonable, because it was within the Sentencing Guidelines range and the applicable range is high for deterrence.

The court also rejected the defendant’s procedural argument that the sentencing court erred by applying two similar sentencing enhancements both involving a pattern of activity, holding that applying both enhancements to the same conduct was permitted and that here the court applied them to different conduct.

“Mind of a small child.” 30 years.

Joining Restrepo were Ambro and Hardiman. The case was decided without oral argument.


In re: National Collegiate Student Loan Trusts — civil — partial reversal — Ambro

This appeal involves an especially complicated commercial dispute that arose after a bunch of students defaulted on their student loans. These loans had been packaged and sold as a security. The entity that sold the securities first hired a bank to collect the overdue loans. When the bank allegedly failed at that, the entity tried to hire someone else to collect. The bank went to court, arguing that the entity wasn’t allowed to hire the replacement collector.

Today, the Third Circuit ruled mostly in favor of the bank, holding that while the entity wasn’t barred from hiring a replacement collector, the way it went about it here violated the bank’s contractual rights and required their consent. I think.

Joining Ambro were McKee and Phipps. Arguing counsel were Michael Hanin of New York for one appellant group, Mathew Martel of Jones Day for another appellant, and Kimberly Evans of Grant & Eisenhofer for the appellee entity.


Abreu v. Superintendent Smithfield SCI — habeas corpus — vacatur — Chagares

After a man appealed from the denial of habeas corpus relief and the Third Circuit granted him a certificate of appealability on two of his claims, he was released early into ICE custody and removed (that is, deported) to the Dominican Republic. The Commonwealth argued that his removal mooted his appeal because a separate conviction, not challenged in his pending habeas challenge, permanently barred him from re-entering the U.S., and today the Third Circuit agreed. The court vacated the district court’s ruling and remanded with instructions to dismiss the petition as moot.

Joining Chagares were Restrepo and Bibas. Arguing counsel were Diana Stavroulakis of Pittsburgh for the petitioner and Hugh Burns for the Commonwealth.


Here are yesterday’s two opinions.

U.S. v. Heinrich — criminal — reversal — Smith

Well, here’s an odd one.

The defendant in a child-pornography-production case sought to introduce expert testimony tending to show he lacked the requisite specific intent, and the prosecution moved to exclude the expert’s testimony on Rule 403 and 704(b) grounds. The district judge’s law clerk held a telephonic pretrial status conference, and during this call informed counsel that the court intended to grant the government’s motion to exclude. But the district court never actually ruled. The defendant pleaded guilty while reserving his right to appeal the exclusion of his expert.

On appeal, the Third Circuit vacated and remanded for the district court to issue a ruling and opinion on the motion. The court explained, “we are left in the unenviable position—indeed, impossible position—of attempting to review an adjunct-presented non-ruling,” emphasizing the importance of creating a record on evidentiary rulings, and adding:

We also expect a district judge to assure that no inappropriate assumptions of judicial authority or appearances thereof occur either in chambers or through communications with parties, counsel, or the public. Regrettably, the District Judge’s unusual and inappropriate delegation of this telephone conference to his law clerk (if, in fact, that is what transpired here), created serious appearance problems.

Joining Smith were Chagares and Porter. Arguing counsel were Adam Hallowell of the WDPA U.S. Attorney’s office for the government and Samantha Stern of the WDPA federal defenders for the defendant.


Cabeda v. Attorney General — immigration — reversal — Jordan

A woman was convicted in Pennsylvania of involuntary deviate sexual intercourse for sexual contact with a teenager. Based on this conviction, the government sought to remove her, arguing that her conviction qualified as an aggravated felony under federal immigration law. The BIA ruled that she was removable as an aggravated felon. Applying the categorical approach, the Third Circuit disagreed, holding that the Pa. conviction did not qualify as an aggravated felony and granting the woman’s petition for review. Another BIA reversal.

Sounds pretty straightforward, right? Well, it wasn’t. All three judges on the panel wrote at length, which offhand I can’t remember happening before in the 5+ years I’ve been blogging. And the panel fractured badly, with only Judge Greenaway joining one main piece of Judge Jordan’s opinion (pp. 7–19) and only Judge Krause joining the rest (pp. 19–30). What looks to me like the meatiest part of the disagreement was between Jordan and Krause over whether circuit cases from an earlier, more expansive era of Chevron deference remain binding precedent. Fascinatingly, avowed Chevron foe Jordan was the one on the side of treating the more expansive Chevron cases as binding: “It is giving necessary respect to our existing precedent, even when we ourselves might be inclined to decide things differently now.” In the end Judge Krause concurred in the judgment while Judge Greenaway dissented from it.

The odds are almost always steeply against the Third Circuit granting en banc review, but I won’t be shocked if it’s granted here (if the government seeks it) given the importance and difficulty of the issues.

Arguing counsel were Thomas Griffin of Surin & Griffin for the petitioner and Andrew Oliveira of the DOJ OIL for the government.

Third Circuit affirms federal death sentence

United States v. Savage — capital — affirmance — Smith

In a 201-page opinion, the Third Circuit today affirmed the conviction and death sentences of Kaboni Savage.

Alas, I think it best if I don’t blog about the opinion because I represent one of Mr. Savage’s co-defendants whose appeal remains pending before the court. I’ll endeavor to post a guest blogger’s summary in the near future. Stay tuned.

Also today, the Court issued a slightly amended opinion in an immigration appeal it originally decided in May, Francisco-Lopez v. A.G. Links to the new opinion and an order helpfully explaining what changed here.


New opinion — another crime triggers longer career-offender sentences

U.S. v. Bullock — criminal sentencing — affirmance — Hardiman

The Third Circuit today held that a conviction under 18 U.S.C. § 111(b) is categorically a crime of violence, and thus eligible under the federal sentencing guidelines for major sentencing increases as a career offender. Section 111(a) makes it a crime to forcibly assault, resist, oppose, impede, intimidate, or interfere with” designated persons, including federal prison guards, and subsection (b) sets a higher statutory maximum sentence for committing those acts using a dangerous weapon or inflicting bodily injury. A crime qualifies as a crime of violence if it involves the use, attempted use, or threatened use of physical force against someone.

So basically the issue here boiled down to whether the least violent way to violate § 111(b) — say, intimidating a guard by means of any weapon “capable of causing physical injury or pain,” which sounds to me like anything this side of cooked spaghetti — requires at least threatened use of force.

The Court held that it did, joining six other circuits. While this is bad news for Mr. Bullock, the opinion may prove helpful to future defendants arguing that § 111(b) does not apply to them in the first place.

Joining Hardiman were Smith and Krause. The appeal appears to have been decided without oral argument.

New opinions, including another Title IX case

M.S. v. Susquehanna Twp. School Dist. — civil / Title IX — affirmance — Porter

An assistant principal at a Pennsylvania high school had sexual contact with a 16 year-old student. (The principal’s name is Shawn Sharkey, not to be confused with Daniel Sharkey, who had sexual contact with a woman in immigration-detention custody, from a Third Circuit case decided last year.) The student sued the school board under Title IX. For the school board to be liable for sexual harassment, “an appropriate person” must have had actual knowledge of it.

That’s where it gets tricky. Everyone agrees that the assistant principal would qualify as an appropriate person if he knew someone else was sexually harassing a student. Does his knowledge of his own actions satisfy the appropriate-person requirement? It does not, the Third Circuit held today, joining the only other circuit to answer the question. The perpetrator himself doesn’t count as an appropriate person for school-district Title IX liability.

Joining Porter were Rendell and Fisher. The appeal was decided without oral argument.


Late yesterday, the Court posted an opinion that actually issued back in May but was not posted then because it was under seal, apparently because one of the parties was a minor

U.S. v. C.S. — criminal — affirmance — Shwartz

Here’s the cogent intro—

C.S., a seventeen-year old, was adjudicated delinquent as a result of threats he made in an Internet chatroom dedicated to discussing terroristic attacks, in violation of 18 U.S.C. § 875(c). During several conversations, C.S. made threats against a local church. Although juvenile proceedings are usually sealed, the District Court permitted the Government to notify the church that it was the subject of a threat and that the party who communicated the threat had been prosecuted. The order did not identify C.S.

C.S. appeals the judgment and the notification order, arguing that the District Court: (1) erred in finding that his statements qualified as threats under § 875(c), and (2) violated the confidentiality provisions of the Juvenile and Delinquency Prevention Act of 1974 (“JDA”), Pub. L. No. 93-415, 88 Stat. 1109 (codified as amended in relevant part at 18 U.S.C. §§ 5031-5038), in allowing the Government to notify the church of the threats. Because the evidence proved that C.S. made threats that violated § 875(c) and the District Court acted well within its discretion in issuing the notification order, we will affirm.

The prosecution arose from a series of online group chats that a 17-year-old whose “screenename … evoked allegience to Islamic fundamentalist guerrillas” had discussing attacks on the Washington Monument and a local Catholic church, particularly his chatroom statement, “Or if Christians trigger me then I go at the church.”

Joining Shwartz were Ambro and Jordan. Arguing counsel were MDPA AUSA Kim Daniel for the government and MDPA AFD Quin Sorenson for the defendant.

Three interesting new opinions

Downey v. Pa. DOC — prisoner civil rights — partial reversal — Restrepo

A formalist would say that the side that wins an appeal is the one that presented the stronger legal authority in support of their position. A legal realist would say that any opinion that contains this paragraph in its factual recitation probably will not end happily for the defendants in a prisoner-civil-rights suit:

It took nearly two months for the surgical consultation to take place. Dr. Szulborski saw Downey [the prisoner] on March 18, 2015, concluding that Downey’s right eye required an emergency procedure in one to two weeks to save his vision. Dr. Tomazic quickly approved the procedure. Despite Downey’s well-documented rapidly deteriorating vision, however, no progress was made towards scheduling his surgery for the next nine months.

The prisoner, now blind, filed suit alleging violation of his Eighth Amendment rights, but the district court granted summary judgment for the defendants on the ground that the prisoner had failed to satisfy the prisoner’s grievance-process requirements.

Today, the Third Circuit reversed in part. Interpreting the prison’s grievance policy, the court concluded that prisoners were not required to follow the normal grievance procedures in urgent situations. The court rejected the defendants’ arguments that the situation wasn’t urgent enough or that the normal procedures applied to urgent claims for money damages. The court affirmed in part, holding that claims against state-actor defendants were barred by sovereign immunity even though that defense was first raised on appeal.

Joining Restrepo were Jordan and Fuentes. Arguing counsel were Corey Mowrey of Rieders Travis for the prisoner, and Sean Kirkpatrick of the Pa. AG’s office and Kenneth Powell of Weber Gallagher for the defendants.


The court also decided two appeals on Friday, but they didn’t post because the court’s website was down.

Ramsay v. Nat’l Bd. of Medical Examiners — civil / disability — affirmance — Shwartz

The Third Circuit affirmed a district court’s order granting a preliminary injunction requiring the National Board of Medical Examiners to grant testing accommodations to a medical student with dyslexia and ADHD.

Joining Shwartz were Greenaway, Jr., and Rendell. Arguing counsel were Mary Vargas of D.C. for the student and Robert Burgoyne of Perkins Coie for the board.


Sherwin-Williams v. County of Delaware, Pa. — civil — affirmance — Hardiman

The Sherwin-Williams paint company, owners of one of this world’s worst corporate logos, sued a county in Pennsylvania, seeking declaratory and injunctive relief to keep that county from retaining lawyers and pursuing lead-paint litigation against it. Is this the kind of blog whose author opines that this suit sounds genuinely asinine, even though t was argued on appeal by a fancy lawyer? It is. The Third Circuit crisply affirmed dismissal on two alternative grounds, Article III injury-in-fact standing and ripeness.

Joining Hardiman were Ambro and Restrepo. Arguing counsel were Leon DeJulius, Jr., of Jones Day for the company and David Senoff of First Law Strategy Group for the county.

Another day, another immigration-case reversal

Sathanthrasa v. A.G. — immigration — reversal — Krause

No litigant in recent memory has gotten clobbered in the Third Circuit the way the DOJ’s Office of Immigration Litigation has over the past couple of years. It’s frankly astonishing. I mentioned it back in February, when they’d lost seven precedential appeals in a row, and since then they’ve lost at least five more. Today, another.

The Third Circuit granted another petition for review and vacated another Board of Immigration Appeals ruling that had denied relief. This time, the court held that the immigration judge failed to follow the controlling regulations that required it to consider specific factors when it reconsidered a Sri Lankan immigrant’s asylum request after granting him withholding of removal. Adopting from other circuits, the opinion sets out a list of factors immigration courts are required to consider in assessing asylum applications, as well as additional points they must consider reconsidering such applications.

Joining Krause were Jordan and Greenaway, Jr. Arguing counsel were Visuvanathan Rudrakumaran of New York for the immigrant and Todd Cochran of the DOJ OIL for the government.


Two new opinions

In re: Suboxone Antitrust Litig. (amended 8/25/20) —civil—affirmance—Shwartz

Suboxone is a drug used to treat opiod addiction by blocking the effects of, and craving for, the drug. It’s a life-saving treatment and advocates have fought hard to make it more widely available. But the pharmaceutical corporation that manufactured it engaged in various alleged marketing practices allegedly designed to suppress competition, like switching it from a tablet to a film in order extend its exclusive-seller period while falsely disparaging the tablets when generic competition for their sales began.

Suboxone direct purchasers sued the drug maker, alleging anti-competitive conduct violating the Sherman Act and seeking class certification. The district court granted certification and the drug maker appealed. Today, the Third Circuit affirmed, holding that the plaintiff class satisfied the requirements for common injury, predominance, and class-representative adequacy.

Joining Shwartz were Greenaway, Jr., and Rendell. Arguing counsel were Peter Kohn of Faruqi & Faruqi for the plaintiffs and Jonathan Berman of Jones Day for the drug maker. Impressively, the opinion issued less than a month after the argument.


Commissioner IRS v. Brokertec Holdings, Inc.—tax—reversal—Ambro

Tax appeals aren’t very common in the Third Circuit, at least not ones decided by precedential opinion. But the court decided an interesting one today, siding with the IRS and holding that tax breaks, grants, and the like given by New Jersey to businesses in exchange for relocating to the state are taxable income.

Joining Ambro were Shwartz and Bibas. Arguing counsel were David Blair of Crowell & Moring for the business and Judith Hagley of the DOJ tax division for the government.

Three new opinions

Commonwealth of Pa. v. Navient Corp.—civil—affirmance—Ambro

The Third Circuit held today that Pennsylvania may bring a parallel enforcement action against a student loan provider under the Consumer Financial Protection Act of 2010 even though the CFPB already had brought a suit against them. It further held that Pennsylvania’s suit was not preempted by the Higher Education Act, which preempts failure-to-disclose claims but not affirmative-misrepresentation claims.

Joining Ambro were McKee and Phipps. Arguing counsel were Michael Shumsky of D.C. for the loan provider, Howard Hopkirk of the state AG’s office for Pa., and Christopher Deal for the CFPB.


The Court also issued two precedential opinions on Friday.

U.S. v. Pawlowski—criminal—affirmance—Ambro

In an appeal initially decided by non-precedential opinion where the court granted the government’s motion to decide it precedentially, the Third Circuit affirmed a district court’s denial of compassionate release based on COVID risk. The court held that its review was for abuse of discretion, and it found none.

Joining Ambro were Krause and Bibas. The case was decided without oral argument.


Blanco v. A.G.—immigration—reversal—Fisher

The Third Circuit reversed the BIA’s denial of a Honduran citizen’s claims for asylum and withholding of removal, holding that the BIA misapplied Third Circuit precedent on past persecution and improperly analyzed whether the man had to corroborate his testimony in support of his claim under the Convention Against Torture.

Joining Fisher were Porter and Rendell. Arguing counsel were Aaron Rabinowitz of Baker & Hostetler for the immigrant and Enitan Otunla for the government.

Four new opinions, with two involving circuit splits

Third Circuit decisions that create new circuit splits are rare, but it happened on Monday in a criminal-sentencing case and then again today in an immigration case.


Sanchez v. Secretary U.S. DHS — immigration — reversal — Hardiman

In what looks to me like a significant immigration ruling, the Third Circuit held today that an immigrant who is lawfully in the U.S. due to a grant of Temporary Protected Status cannot qualify for permanent residence under an INA provision applicable to people who were “inspected and admitted or paroled” in the U.S. The case turned on whether conferral of TPS constituted admission: the court held that it did not based on the statutory text, context, and purpose. The court created a split with the other two circuits to answer the question, the Sixth and Ninth Circuits.

Joining Hardiman were Porter and Phipps. Arguing counsel were Matthew Glover of the DOJ Civil Division for the government, Jaime Aparisi of Maryland for the immigrants, and Mary Kenney of the National Immigration Litigation Alliane for amicus in support of the immigrants.


St. Lukes Health Network Inc. v. Lancaster General Hosp.—civil / RICO — reversal — Greenaway, Jr.

The cogent introduction:

This case involves a state-run program to reimburse Pennsylvania hospitals for treating indigent patients. Plaintiffs-Appellants are a group of hospitals and their related health care networks that seek civil remedies from Defendants-Appellees, another hospital and hospital system, for violations of the Racketeer Influenced & Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964(c)–(d). Plaintiffs allege that Defendants submitted fraudulent claims for reimbursement, in violation of the wire fraud statute, 18 U.S.C. § 1343, and received an unduly inflated proportion of the available funding. As a result, Plaintiffs claim they were reimbursed an artificially smaller share of funds. The District Court dismissed Plaintiffs’ claims for lack of RICO standing, an additional requirement to Article III standing. It found that Plaintiffs failed to plead sufficient facts to demonstrate that their injury was caused by Defendants’ alleged fraud.

Because we find Plaintiffs’ theory of liability adequately alleges proximate causation, we will reverse the District Court and remand for further proceedings consistent with this opinion.

Joining Greenaway, Jr. were Porter and Matey. Arguing counsel were Brian Barnes of Cooper & Kirk for the appellants and Kevin Fay of Eckert Seamans for the appellees.


U.S. v. Seighman — criminal — affirmance — Hardiman

A defendant was convicted of a crime for which the statutory maximum sentence was 60 months in prison. After serving 54 months in prison and while out on supervised release, he violated his conditions of release. The judge revoked release and sentenced him to another 24 months in prison for the violation. On appeal, the defendant argued that the revocation sentence was invalid in light of the Supreme Court ruling last year in United States v. Haymond.

Reviewing for plain error, the Third Circuit yesterday affirmed. It distinguished this situation from the three factors relied on to reverse by Justice Breyer’s controlling opinion in Haymond, and it held that in any event any error was not plain because question was novel.

Joining Hardiman were Phipps and Nygaard. Arguing counsel were Jacob Schuman of the EDPA Federal Defenders for the defendant and Adam Hallowell of the WDPA US Attorney’s office for the government.


U.S. v. Birt — criminal — affirmance — Jordan

The First Step Act enacted by Congress in 2018 allows courts to retroactively reduce the sentences of defendants convicted of a “covered offense,” defined as one whose penalties were modified by the earlier Fair Sentencing Act. The Third Circuit held on Monday that a conviction for crack cocaine possession under 28 USC § 841 (a)(1) and (b)(1)(C) was not a 1SA “covered offense.” This holding creates a split with the First Circuit and deepens another split on a subsidiary question.

Joining Jordan were Ambro and Shwartz. Arguing counsel were Frederick Ulrich of the MDPA Federal Defenders for the defendant and William Behe of the MDPA US Attorney’s office for the government.

Three new opinions

Being a lawyer and a sometimes blogger was hard enough. But lawyer, blogger, teacher/daycare worker, and repository of pandemic anxiety? It doesn’t always work. Sorry for my delayed write-ups. All three cases are above-average significant.

Plastic Surgery Ctr. v. Aetna Life Insurance—civil / insurance—partial reversal—Krause

It’s an ERISA case so I don’t even feel guilty about just quoting the opening paragraph:

This case presents an issue of first impression for this Circuit and of great importance to the healthcare industry: What remedies are available to an out-of-network healthcare provider when an insurer agrees to pay for the provision of services that are not otherwise available in-network and then reneges on that promise? To frame the question in statutory terms, in what circumstances does section 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., which preempts state laws that “relate to” ERISA plans, preempt an out-of-network provider from pursuing common law breach of contract, promissory estoppel, and unjust enrichment claims? The District Court held the provider’s claims here were preempted. We disagree as to the breach of contract and promissory estoppel claims, so we will affirm, in part, and reverse, in part.

Joining Krause were Matey and Quiñonees Alejandro EDPA by designation. Arguing counsel were Michael DiCicco of Maggs & McDermott for the appellant and Colin O’Boyle of Elliott Greenleaf for the appellees.


Teamsters Local 177 v. UPS—civil / arbitration—reversal—Ambro

Taking sides in a circuit-split, the Third Circuit yesterday held that a district court has jurisdiction to confirm an arbitration award regardless whether there is an active dispute between the parties over the award. The court rejected the arbitration loser’s argument that the district court lacked subject-matter jurisdiction because it’s agreement to abide by the award meant there was no Article III standing.

Joining Ambro were Jordan and Shwartz. Arguing counsel were Edward O’Hare of Zazzali Fagella for the appellant and Michael Dell of Day Pitney for the appellee.


Williams v. Medley Opportunity Fund—civil / insurance—affirmance—Shwartz

The Third Circuit rejected a payday lender’s creative effort to channel any disputes over its loans to binding arbitration before a tribal arbitrator who would apply only tribal law, not state or federal statutes. The lender’s attempted end-run around federal usury protections was unenforceable as a prospective waiver of statutory rights, the court held.

Joining Shwartz were Scirica and Cowen. Arguing counsel were Daniel Volchok of WilmerHale and Sarah Harris of Williams & Connolly for the payday lenders and former Nygaard clerk Matthew Wessler of Gupta Wessler for the borrowers.

New opinion: Third Circuit revives nuisance & negligence claims against Bethlehem landfill

Baptiste v. Bethlehem Landfill Co.—civil / environmental—reversal—Restrepo

The Third Circuit today ruled in favor of a group of residents of Bethlehem, Pa., who sued their municipal landfill due to its overpowering smell and air pollution. The introduction:

Robin and Dexter Baptiste brought an action against the Bethlehem Landfill Company on behalf of a class of homeowner-occupants and renters claiming interference with the use and enjoyment of their homes and loss in property value caused by noxious odors and other air contaminants emanating from the Bethlehem landfill. They brought these claims under three state-law tort theories: public nuisance, private nuisance, and negligence.

The U.S. District Court for the Eastern District of Pennsylvania granted the company’s motion to dismiss the complaint. The District Court held that too many residents were similarly affected to sustain a private claim for public nuisance, that the odors affected too many people and the landfill was too far away from them to constitute a private nuisance, and that the plaintiffs had failed to identify a duty of care to maintain a negligence claim. We disagree, and therefore, we will reverse and remand.

Joining Restrepo were Roth and Fisher. Arguing counsel were Nicholas Coulson of Detroit for the residents, Matthew Owens of Chicago for amici supporting the residents, and Eric Klein of Florio Perrucci for the landfill.

New opinion on claim preclusion

Hay Groug Mgt v. Schneider —civil—partial reversal—Roth

The Third Circuit today issued a 15-page opinion, 15 months after the oral argument, deciding a claim-preclusion question. Applying Pennsylvania law, the district court had ruled that a party’s claim was precluded because it could have been raised in prior related litigation in the German courts. The Third Circuit disagreed, explaining that under Pennsylvania law the relevant question was instead whether the claim was required to be raised. On this basis, the court affirmed summary judgment as to one of the party’s claims but vacated and remanded on the other.

Joining Roth were McKee and Fuentes. Arguing counsel were Jeremy Heep of Troutman Pepper for the appellant and Karl Geercken of Alston & Bird for the appellee.

New opinion: Third Circuit recognizes constitutional right to challenge unreasonable immigration detention

Santos v. Warden, Pike County Correctional—immigration—reversal—Bibas

In an important victory for immigrants facing deportation, the Third Circuit today held that they may challenge unreasonably long detention without a bond hearing as a denial of due process.

The man who brought the challenge was a Dominican native who has been a lawful permanent resident since 2006 but pleaded guilty to possessing marijuana with intent to deliver. He was arrested pending deportation in 2017, over two-and-a-half years ago, and locked up ever since. The applicable statute, 8 USC § 1226(c), requires the government to detain certain people pending deportation, even if they are legal U.S. residents and without any chance to show low risk of flight or danger to the community if released on bond.

The Third Circuit held that immigrants in custody under § 1226(c) may bring as-applied due process reasonableness challenges to their detention. The court set out factors for courts to consider in assessing reasonableness, and it held that the 2.5-year-plus detention here was unreasonable. Directing that the mandate issue immediately,  the court remanded with orders for the district court to give the man a bond hearing, where the government bears the burden of justifying continued detention by clear and convincing evidence, within 10 days.

Joining Bibas were McKee and Nygaard. Arguing counsel were Rebecca Hufstader of the Nationalities Service Center for the immigrant, Sarah Wilson for the government, and Celso Perez of the ACLU Immigrants’ Rights Project for amici.

New opinions, including a big First Step Act case

U.S. v. Jackson—criminal sentencing—reversal—Smith

Back in the worse-old-days, the Sentencing Guidelines treated crack cocaine far more harshly than powder cocaine, a disparity widely criticized as racist. Congress changed that in 2010, but only for future cases, not for people already sentenced. Finally in 2018 Congress passed the First Step Act, which gave district courts discretion to reduce pre-2010 sentences to give them the benefit of the 2010 law, too.

Without getting too deep in the weeds, suffice to say that eligibility for First Step Act reductions turns on a drug-quantity number. (Pre-2010 sentences for crack distribution jumped upwards when the quantity possessed exceeded 5 grams; after 2010, the threshold rose to 28 grams.) The issue at the heart of today’s appeal was how that drug quantity should be determined: (a) by the crime of conviction, or (b) by the facts of each case. (This echoes other crim-law fights over whether to apply the categorical approach.)

The question arose in a two-defendant consolidated appeal:

  • Kevin Harris pleaded guilty to possessing more than 5 grams of crack with intent to distribute it and he was sentenced to 17-and-a-half years in prison. In his plea agreement, he stipulated that he possessed 33.6 grams of crack.
  • A jury found Anthony Jackson guilty of possessing more than 5 grams of crack with intent to distribute it and he was sentenced to 25 years in prison. The indictment charged him with having 48 grams.

So if the drug quantity that matters is the crime of conviction, both are eligible. If it’s the facts of the case that matter, neither is.

(It’s not the point of the case, but just pause a second to reflect on the stupefying brutality of those sentences. 33.6 grams of sugar equals less than 3 tablespoons; 48 grams less than 4. Both men got 6 years in prison per tablespoon. Sentences like that are so routine that it’s easy to lose sight of how terrible that is.)

Today, the Third Circuit held that eligibility for the reduction depends on the drug quantity from the statute of conviction, not from the facts of the case. The opinion is a model of careful statutory interpretation, both plain meaning and canons of construction. The court joined every other circuit to decide the issue.

Judge Hardiman dissented, acknowledging that the weight of authority strongly favored the majority but lucidly explaining why he found several district court opinions ruling the other way more persuasive.

Joining Smith was Krause, with Hardiman dissenting. Arguing counsel were Robert Zauzmer of EDPA and Ira Karoll of WDPA (a former Hardiman clerk) for the government, Christy Martin of the EDPA FCDO and Samantha Stern of the WDPA FDP for the defendants.


Leo v. Nationstar Mortgage—civil—affirmance—Smith

The Third Circuit today held that the filed-rate doctrine precluded borrowers’ overcharge claims against insurers because the alleged overcharges were baked into a rate filed with regulatory authorities.

Joining Smith were Chagares and Porter. The appeal was decided without oral argument.

New opinion: Third Circuit rules for the student in a major student-speech case

B.L. v. Mahanoy Area S.D.—First Amendment—affirmance—Krause

This is a pretty darn highbrow blog, so, left to my own devices, I’d probably have euphemism-ed my way around the factual heart of this case. But, hey, if the august Court can say it, I should too. So: a public high school student who didn’t make her school’s varsity cheerleading squad posted a photo captioned “fuck cheer” online. Well, actually, it was captioned, “Fuck school fuck softball fuck cheer fuck everything,” but I suspect it shall be remembered to history as the “fuck cheer” case.

Anyway, the cheerleading coaches weren’t amused, and they duly cut her from JV cheerleading team and the school and the district upheld their action, so she sued, alleging violation of her First Amendment free-speech rights. The district court granted her summary judgment, and today the Third Circuit affirmed.

The Court first held that the student’s claim was subject to the standard applicable to off-campus speech, rather than the circuit’s more-speech-limiting standard (derived from Tinker) for on-campus speech. It then held that punishing her for her post (her “snap,” the more-with-it-than-I opinion calls it, since it occurred on an app called Snapchat) violated her free-speech rights, rejecting the district’s argument that it should apply a more speech-limiting standard because the speech involved an extracurricular activity, which is sort of a fuck-cheer argument if you think about it, no? The court split with various other circuits on the questions of how and whether Tinker‘s standard applies to off-campus speech.

Judge Ambro concurred in the judgment, arguing that the panel should have ruled on narrower circuit-precedent grounds without deciding how Tinker applies to off-campus speech: “I dissent [from the Tinker holding] because it is a fundamental principle of judicial restraint that courts should “neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” He concludes:

The craft of judging has a restraining principle: Do not decide today what can be decided tomorrow, for tomorrow it may not need to be decided. We twist that tenet today by a wide-reaching holding for facts outside the question my colleagues call. In J.S., despite a well-reasoned concurrence urging that Tinker not apply to off-campus student speech,
J.S., 650 F.3d at 936–41 (Smith, J.), our en banc decisions in both it and Layshock declined to go that far. Yet a panel does so today with no more compelling context than either en banc case. Our task is to balance tolerance for expressive conduct with the need for order in our schools. The test in Tinker— whether student speech reasonably “forecast[s] substantial disruption of or material interference with school activities,” 393 U.S. at 514—is the law we applied en banc, and it no doubt works here to rule in B.L.’s favor. Why go further until it is needed?

It’s a fascinating and revealing conversation about how judges should judge. My crystal ball says a petition for rehearing en banc is certain to be filed and likely to get an extra-serious look, but no predictions about whether it will be granted.

Joining Krause was Bibas, with Ambro concurring in the judgment. Arguing counsel were Sara Rose of ACLU Pa. for the student and Michael Levin of Levin Legal Group for the school district.

New opinion: Third Circuit upholds mootness dismissal of union-fees suit

Hartnett v. Pa. State Educ. Assoc.—civil—affirmance—Bibas

The Third Circuit today affirmed the dismissal on mootness grounds of  a challenge to Pennsylvania’s statute authorizing unions to collect agency fees from non-members. Agency fees are intended to eliminate the freerider problem by charging non-members for the union’s costs for negotiating on their behalf.  The parties to the suit all agreed that the law was unenforceable after the Supreme Court’s 2018 ruling in Janus v. AFSCME, and the court found no reason to think that these defendants would try to collect the fees from these plaintiffs again, and that rendered the plaintiffs’ suit moot. (The opinion helpfully distinguishes mootness from standing, which remains if established at the outset.) “Just because a statute may be unconstitutional does not mean that a federal court may declare it so,” the opinion began. “If there is no real dispute over a statute’s scope or enforceability, we must dismiss any suit attacking it, no matter how obvious the result may seem.”

Joining Bibas were Chagares and Restrepo. The appeal was decided without oral argument.

Third Circuit ECF will be down Friday evening and all weekend

The Third Circuit announced today that its electronic filing system ECF will be undergoing maintenance and unavailable from this Friday June 26 at 5 pm through Monday June 29 at 6 am.

This is particularly significant for anyone with a filing due on Friday. Normally you’d be able to electronically file it up to midnight, but now you’ll need to do it before 5.

Video livestream of en banc Third Circuit argument on deference to Sentencing Guideline commentaries starts shortly

An en banc argument by video? Is that possible? The Third Circuit is about to find out.

This morning at 9:30—in 10 minutes—the court will hold en banc oral argument in United States v. Nasir, 18-2888, a criminal-sentencing appeal. Here is a cogent summary of the case by Cato Institute. The core issue is whether the Supreme Court’s recent decision in Kisor v. Wilkie changes the deference that courts give to commentary to the Sentencing Guidelines. Arguing counsel are listed as Keith Donoghue for the defendant and Whitney Cloud for the government.

You can listen to (but not watch) the argument by livestream at this youtube link. If you prefer (or if you’re reading this after Wednesday morning 6/24) the court will post the audio on its website later.

New opinions

Two new opinions today, plus three from earlier I’m getting to late.

S.-W. v. United States—civil—affirmance—Fisher

After a girl sustained a permanent injury to her shoulder during her childbirth, she sued the doctor who handled the delivery for malpractice. The statute of limitations applicable to such a suit normally would have been tolled by Pennsylvania law until the child turned 18. But, unbeknownst to the plaintiff, the doctor was employed by a deemed-federal entity, so the Federal Tort Claims Act was the exclusive remedy and no statutory applied. The plaintiff sought equitable tolling because the doctor was listed as a team member on the website of the private hospital where the birth took place, but the district court denied the request and today the Third Circuit affirmed.

The opinion first clarified that the standard for equitable tolling has two separate requirements: (1) that the plaintiff pursued her rights diligently, and (2) that some extraordinary circumstance beyond her control prevented timely filing. The plaintiff failed both prongs. Good news for medical-malpractice defendants, civil defendants generally, and attorney-malpractice lawyers.

Joining Fisher were Hardiman and Rendell. The case, submitted after the pandemic shutdown began, was decided without oral argument.


In re: Processed Egg Prods. Antitrust Litig.—antitrust—affirmance—Jordan

The Third Circuit today rejected antitrust plaintiffs’ challenges to a jury verdict against them on their allegations that egg producers conspired to raise prices by depressing supply. The plaintiffs’ main argument was that the court erred at the summary-judgment stage by evaluating their conspiracy allegations using the rule of reason instead of the standard for per se illegality. The Third Circuit disagreed:

The plaintiffs evidently believe that, because they are masters of their complaint, they are also
masters of the District Court in deciding the analytical approach to be taken in the case. Their power to dictate analysis and outcome is not what they wish it were.

Joining Jordan were Restrepo and Fuentes. Arguing counsel were Kathleen Sullivan of Quinn Emanuel for the plaintiffs and Jay Levine of Porter Wright for the egg producers.


On to the three prior opinions.

Jaroslawicz v. M&T Bank—civil / securities—partial reversal—Matey

After two banks merged, shareholders for one of the banks filed a class-action suit, alleging that the banks failed to disclose material information about the other bank. The district court dismissed their claims, but the Third Circuit vacated and remanded in part, upholding dismissal of their claims for misleading opinion statements but vacating dismissal of claims about the other bank’s risk disclosure.

Joining Matey were McKee and Siler CA6 by designation. Arguing counsel were Deborah Gross of Kaufman Coren & Ress for the appellants and former Barry clerk Bradley Wilson of Wachtell for the appellee bank parties.


U.S. v. Bellille—criminal—reversal—Ambro

Well, you don’t see this every day.

After a district court appointed a lawyer from the CJA panel to represent a defendant in a large multi-defendant RICO case, the lawyer moved to withdraw on the ground that he no longer was on the CJA panel, that he now was an in-house counsel for a corporation, that he was contractually barred from doing the case, and that he lacked the ability and resources to do it. The district court denied the motion. Then the lawyer (allegedly) joined a law firm of-counsel and moved to withdraw on the ground that the principal of the firm had represented a prosecution witness in the case, so he moved to withdraw again. The district court denied this motion, too. (The case arose in the Virgin Islands, and the district judge later explained that the existing CJA panel wasn’t big enough to represent all the defendants.)

The Third Circuit vacated and remanded. After first ruling that it had jurisdiction to hear interlocutory appeals from denials of motions to withdraw based on conflicts of interest, it got to the merits:

Accordingly, we remand for the District Court to develop further the factual record and decide Golubitsky’s motion based on that supplemented record. It must first determine whether there is an actual of-counsel relationship between Golubitsky and DiRuzzo (in other words, whether the facts on the ground are as the parties allege).

If there is no actual of-counsel relationship, Golubitsky’s representation of Bellille in theory could continue. But the Court should also determine whether Golubitsky and DiRuzzo associated to create a conflict. If the answer is yes, it may want to take disciplinary action. In that scenario, Golubitsky would probably be disqualified from representing Bellille based on the manufactured conflict and sanctionable conduct.

If there is a real relationship, then the Court must inquire whether Golubitsky and DiRuzzo were associated in a “firm” under Model Rule 1.10(a) based on the supplemented record. Were they not associated in a “firm,” the representation may continue and there is no need for screening mechanisms.

If there is an actual relationship, and Golubitsky and DiRuzzo were associated under Model Rule 1.10, the Court must assess whether the four requirements of Model Rule 1.7(b) are met. If even one is not met—for example, if the Court concludes that the representation involves the assertion of a claim by one client against another client in the same litigation, or Bellille and Ayala did not consent in writing to the representations—the Court must grant the motion to withdraw.

Fascinating stuff.

Joining Ambro were Greenaway, Jr., and Bibas. Arguing counsel were Alexander Golubitsky (the same lawyer seeking to withdraw) of DiRuzzo & Company for the appellant and Meredith Edwards of the USVI US Attorney’s office for the government.


In re: NFL Players’ Concussion Injury Litig.—civil—affirmance—Greenaway, Jr.

The settlement of the lawsuit brought by former pro football players against the National Football League has generated a series of legal battles. In this latest round, a group of former players challenged various rules enacted by the settlement claims administrator for distributing settlement funds to former players seeking compensation. The challengers argued that the revised rules amended the settlement itself and, even if they didn’t, they were an abuse of discretion. The Third Circuit rejected both arguments and affirmed.

Joining Greenaway, Jr., were Jordan and Krause. The appeal was decided without oral argument.

New opinion: Third Circuit deeply skeptical that private prison staff can’t be sued as federal actors

This opinion issued yesterday. I’m posting this the day after because yesterday my wife had surgery to repair the collarbone she broke in a mountain biking crash (she’s the tough one in the family) and caretaking precluded blogging.

Davis v. Samuels, Jr.—prisoner rights—partial reversal—Jordan

A man confined in a private prison that holds foreign nationals facing deportation sued the prison after it denied his request to let him get married. His suit raised several claims, all of which the district court dismissed. Yesterday the Third Circuit reversed in part.

[Disclosure: I provided some assistance to the appellant’s counsel in preparing for oral argument.]

One claim sought money damages under Bivens for violation of his right to marry. The district court dismissed that claim on the theory that the private prison administrators were not federal actors, despite acting under contract with the federal government. The Third Circuit expressed “deep[] skepticism” about that reasoning, but affirmed dismissal on the alternative ground that Bivens shouldn’t be extended to right-to-marry claims.

Another claim alleged a conspiracy to discriminate per 42 USC § 1983(3). The district court dismissed the 1983 claim applying the standard that applies to conspiracies by private actors, but the Third Circuit held that it was error to apply that standard to an alleged conspiracy involving both private and governmental actors.

The district court also dismissed various claims against governmental defendants, sua sponte, for failure to serve them, without considering whether to extend the time for service. The Third Circuit vacated that ruling as an abuse of discretion.

The appellants raised various other claims which the district court dismissed where the Third Circuit affirmed, including a 1983 claim for lack of state rather than federal action and 1981 and 2000d claims for lack of plausible allegations of national-origin discrimination.

Joining Jordan were Restrepo and Greenberg. Arguing counsel were Stephen Fogdall of Schnader Harrison for the would-be marriers and Laura Irwin of the WDPA US Attorney’s office and Thomas Specht of Marshall Dennehy for the defendants.


New opinion: Third Circuit vacates denial of 2255 relief on allocution-offer claim

U.S. v. Scripps—habeas / § 2255—reversal—Rendell

Rule 32 of the Federal Rules of Criminal Procedure requires the sentencing judge to “address the defendant personally in order to permit the defendant to speak.” But at Michael Scripps’s sentencing, the judge asked counsel whether the defendant wanted to speak, and, after directing counsel to discuss it with his client, accepted counsel’s negative response. The defendant filed a motion for postconviction relief under 28 USC § 2255, alleging that his counsel was ineffective for failing to challenge the judge’s failure to personally invite him to allocute. The district court denied the petition without an evidentiary hearing (and did not even grant a certificate of appealability).

Today, the Third Circuit vacated and remanded, holding that the district court abused its discretion in denying the 2255 motion without an evidentiary hearing. Dismissal without a hearing is appropriate only when the record “conclusively show[s]” that the petitioner isn’t entitled to relief, and here it did not because the court’s failure to personally address the defendant was error and counsel’s reasons for not challenging this error were not in the record: “while it would be highly unusual for counsel to omit such a clearly meritorious argument, nonetheless counsel may have had reasons for doing so.”

The court also considered the possibility that the case became moot when the petitioner was released from prison during the pendency of the appeal, concluding it did not because he still is subject to supervised release.

Joining Rendell were Bibas and Scirica. The appeal was decided without oral argument.

Two new opinions

The Court issued two precedential opinions on Friday.

Waterfront Commission of N.Y. Harbor v. Governor N.J.—civil—reversal—Smith

The federal courts lack jurisdiction to hear a lawsuit trying to prevent New Jersey from leaving an interstate compact, the Third Circuit held Friday. The compact, called the Waterfront Commission Compact, was formed in the 1950s between New Jersey and New York to regulate shipping-harbor hiring practices. When New Jersey moved to withdraw at the end of Governor Christie’s administration, the Commission sued the Governor in federal court to block the withdrawal. The district court granted summary judgment in favor of the Commission, but the Third Circuit vacated its ruling, holding that, because New Jersey was the real party in interest, the suit impinged on its sovereign immunity in violation of Ex parte Young.

Joining Smith were Hardiman and Krause. Arguing counsel were Sean Kelly of Saiber for the Commission, Aaron Love (formerly) of the state AG’s office for the governor, and Leon Sokol of Cullen & Dykman for various state officials.


U.S. V. Torres—criminal—affirmance—Porter

The introduction:

After a bench trial, the District Court found Michael Torres guilty of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District Court imposed a fifteen-year mandatory-minimum sentence under 18 U.S.C. § 924(e) of the Armed Career Criminal Act (“ACCA”) because it determined that Torres had three qualifying felony convictions.

Torres raises two arguments on appeal. First, he contends that the District Court erred by denying his motion to suppress the firearm. Second, Torres argues that his prior federal drug conspiracy conviction does not qualify as an ACCA predicate offense because it encompasses his other two substantive ACCA predicates. We will affirm. The firearm was discovered during a valid investigative stop. And we will join our sister circuits in holding that a drug conspiracy conviction counts as an ACCA predicate offense, so long as it was distinct in time from the underlying substantive offenses.

On the Fourth Amendment issue, the court upheld denial of suppression because it was seized during a valid Terry investigative stop based on an anonymous tip. In a footnote, the court observed that the officer believed that his body camera captured the stop but it malfunctioned.

On the ACCA issue, the court held that the conspiracy offense was distinct from the underlying substantive offenses, even though the underlying offenses were encompassed in the conspiracy offense, because they conspiracy continued for a year after the later substantive offense and included numerous other overt acts.

Joining Porter were Rendell and Fisher. The appeal was decided without oral argument.

Five new opinions, including significant appeals involving campaign contributions and Title IX

Four Five opinions today, it feels like August in May.

Deon v. Barasch—civil / First Amendment—affirmance—Nygaard

When Pennsylvania legalized casinos and horsetrack betting in 2004, it barred political contributions to state candidates by casino and racetrack owners and others, to “prevent the actual or appearance of corruption that may result from large campaign contributions; ensure the bipartisan administration of this part; and avoid actions that may erode public confidence in the system of representative government.” Pennsylvania’s neighbor, New Jersey has a similar restriction, as so do two other states, and three others have narrower political-contribution bans. A large majority of states with legalized gambling have no such restriction.

Two casino-affiliated people filed a suit alleging that Pennsylvania’s bar on their contributing to state candidates violated their First Amendment free speech rights. The district court ruled in their favor, and today the Third Circuit affirmed. The court assumed that intermediate scrutiny applies and that the state’s interest in combating corruption was sufficient, but it held that the restriction was not “closely drawn” because most other states with legalized gambling do not have them:

Perhaps the Commonwealth is accurately asserting that, like New Jersey and Louisiana, the presence of the gaming industry within its borders creates the need for a law with the breadth of Section 1513. But the inescapable fact here is that the experience of nineteen other states with commercial, nontribal casinos has not generated a similar legislative judgment. And because these schemes place less of a burden on First Amendment rights, the Commonwealth—at a minimum—had the burden of showing why the experiences of New Jersey and Louisiana provide a better basis to assess the proportionality of Section 1513 than one of these other states. It relies on the histories and legislative judgments of two states with similar laws to make its case here. But it does so without reference to states that have taken different approaches less burdensome to First Amendment rights.

The Commonwealth’s implicit appeal to “common sense” as a surrogate for evidence in support of its far-reaching regulatory scheme is noteworthy in this evidence-based inquiry, particularly in light of the approach taken by most other similarly situated states. Our assessment of fit is meaningless unless we can be sure that it is fixed to a reasonable understanding of the real world that Pennsylvania faces. Ultimately, this dearth of evidence is why the Commonwealth falls well short of its burden to show that Section 1513 is closely drawn. Like the District Court, we do not conclude that it is impossible for the Commonwealth to defend the proportionality of its law. We only conclude that it has failed to give us enough information to assess it here. This failure is dispositive.

Joining Nygaard were Jordan and Bibas. Arguing counsel were Howard Hopkirk of the Pa. Attorney General’s office for the Commonwealth and John Hamill of DLA Piper for the would-be contributors.


Norman v. Elkin—civil—partial reversal—Jordan

When a court of appeals begins to lose its good humor with a long-running case, the opening sentence of its opinion reads something like this one:

This appeal, the second we have been asked to decide in this case, marks what is, one hopes, effectively the final chapter of a bitter dispute spanning more than 14 years and involving state and federal courts, two different district court judges, two jury trials, and seemingly innumerable procedural and dispositive motions, both pre- and post-trial.

In this round—Norman VII, improbably; Norman V, the “long and tortuous litigation trail” case, is discussed here—the Third Circuit largely upheld the district court’s conclusion that all but a subset of the plaintiff’s breach of contract claim was time-barred under the discovery rule.

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


U.S. v. Garner—criminal—affirmance—Hardiman

The Third Circuit rejected two defendants’ arguments that their traffic stop was unreasonably prolonged in violation of the Fourth Amendment, that the court violated Rule 404(b) by admitting a prior criminal conviction, and that the evidence was insufficient to convict for conspiracy to distribute drugs.

Joining Hardiman were Porter and Phipps. Arguing counsel were John Yaninek of Thomas Thomas & Hafer for one defendant, Keith Donoghue of the EDPA federal defender for the other, and Scott Ford for the government.


Eshleman v. Patrick Indus.—civil / disability—reversal—McKee

The Third Circuit reversed a district court’s dismissal of a fired employee’s suit under the Americans with Disability Act. The introduction explains:

Eshleman claimed that Patrick Industries regarded him as disabled in violation of the Americans with Disabilities Act of 1990 (the ADA)1 because he took two months of medical leave for a lung biopsy procedure and two vacation days for an upper respiratory infection. The District Court held that the ADA did not cover Eshleman’s “regarded as” claim because his impairment lasted less than six months and was therefore “transitory and minor.” As we explain in more detail below, because the District Court did not conduct an independent analysis into whether Eshleman’s impairment was minor, apart from whether it was transitory, we will reverse and remand for further proceedings.

Joining McKee were Smith and Phipps. Arguing counsel were Samuel Dion of Dion & Goldberger for the appellant and Theresa Zechman of Stevens & Lee for the appellee.


Doe v. Univ. of the Sciences—civil / Title IX—reversal—Porter

A male college student was accused by two female students at the school of having sexual intercourse with each of them without consent. One alleged that she passed out from drinking at a party and woke to him having sex with her, and the other alleged that, after prior consensual sex, she refused to have sex without a condom but he did so anyway. The university retained an attorney to investigate, the investigator concluded that the accused had violated the school’s sexual misconduct policy by engaging in intercourse without either woman’s affirmative consent, and the university expelled him.

In response, the student sued the university, alleging that it violated Title IX by discriminating against him on the basis of his sex and breached its contract with him by violating its student-handbook policy promising “fair” investigations. The district court dismissed, but today the Third Circuit reversed.

As to the Title IX claim, the court joined the Seventh Circuit against at least four other circuits as to the pleading standard, holding that a Title IX claim simply requires facts supporting a plausible inference that the school discriminated against the person on the basis of sex. The student met this standard through two groups of evidence combined: that the university succumbed to pressure from the Obama Department of Education in a 2011 Dear Colleague letter, and that it was motivated by his sex because it didn’t investigate allegations against his two accusers and a witness.

As to the breach of contract claim, the court held that the handbook’s promises of fair and equitable treatment for those accused of sexual misconduct “require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses—including his or her accusers.”

Joining Porter were Restrepo and Matey. Arguing counsel were Joshua Engel of Engel & Martin for the student and Leslie Greenspan of Tucker Law Group for the university.

New opinion: Third Circuit applies “looser” categorical approach to mandatory minimum triggered by prior related offense

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

A federal statute, 18 USC § 2252(a)(2), imposes a 15-year mandatory minimum sentence for child-pornography offenses when the defendant has a prior state conviction “relating to” possession of child pornography. The defendant here pleaded guilty to the federal offense had a prior Pennsylvania conviction for child-pornography possession, but he argued that the mandatory minimum did not apply to him because (1) the Pa. offense was broader than the federal offense, and (2) the phrase “related to” rendered the statute void for vagueness.

Today, the Third Circuit rejected both arguments. The court rejected the argument that formal categorical-approach matching of elements applied and instead applied what it called a “looser categorical approach.” This looser categorical approach considers how the statutes terms are understood generically, “as commonly understood and informed by its constituent terms, but not strictly cabined by them as under the formal categorical approach.” The court split with the Ninth Circuit on this point.

Joining Fuentes were Shwartz and Scirica. The case was decided without oral argument, which I view as unfortunate.

New opinion: stipulating to jurisdictional elements of crime doesn’t violate Sixth Amendment

US v. Wilson—criminal—affirmance—Bibas

Although defendants have the right to decide to maintain their factual innocence, the Sixth Amendment does not prevent their lawyers from stipulating to jurisdictional elements of crimes even over their clients’ objections, the Third Circuit held today:

Criminal defendants have a Sixth Amendment right to choose the ultimate objectives of their defense. That includes the right to maintain their factual innocence, even if their lawyers advise them to admit guilt. But their lawyers call the shots on the tactics used to achieve those objectives. Defense lawyers may thus stipulate to the jurisdictional elements of crimes without their clients’ consent or over their clients’ objection.

The convictions were for robbing federally insured banks, a crime which requires proof beyond a reasonable doubt that the bank was federally insured. The court rejected the defendants’ arguments that, under McCoy v. Lousiana, stipulating to a jurisdictional element over without the client’s consent or over their objection necessarily deprived the defendants of effective assistance of counsel.

The court also rejected a slew of other challenges to the petitioner’s convictions, holding that:

  • the vehicle stop that led to their arrest was not impermissibly extended
  • use of cell-site location data was proper under the good-faith exception
  • refusing to sever the joint trial was not plain error,
  • failing to grant a mistrial after a witness said the defendants had a history of drug dealing,
  • the prosecution did not improperly vouch for its witnesses’ credibility,
  • the evidence was sufficient, and
  • various sentencing challenges

Joining Bibas were Hardiman and Greenaway. The case was decided without oral argument.

UPDATE: On June 23, the court vacated its original opinion and issued a new one. The old opinion is here, the new link in the heading is now to the new opinion. The order vacating the prior opinion states that the change was on page 24; the new opinion deleted the sentence that had a cite to Duka.

New opinion: prison’s misleading excuses prisoner’s administrative exhaustion, plus two other reversals yesterday

Hardy v. Shaikh—prisoner rights—reversal—Krause

The introduction says it more clearly than I can:

This case presents the question of whether and under what circumstances a misrepresentation renders a grievance process “unavailable” within the meaning of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We conclude that the District Court erred in finding that the second step of the grievance process here was available to the plaintiff, Steven Patrick Hardy, even though a prison counselor misled him into believing that after his grievance was rejected he should file a new one rather than appeal the rejection. Because that misrepresentation thwarted Hardy’s use of the grievance process, we find that he exhausted his available administrative remedies. Accordingly, we will reverse the District Court’s grant of summary judgment and remand for further proceedings.

The prisoner was battling to get treatment for his festering leg wound that ultimately required two partial amputations, but the prison deflected every attempt. It rejected one pro se grievance because it was not “legible, understandable, and presented in a courteous manner.” In an unusual-for-the-Third-Circuit footnote, the opinion observed:

Here, in the face of confusing and evolving grounds for rejection, Hardy repeatedly requested relief for a manifestly serious medical complaint. To put it mildly, the present record does not reflect well on the prison’s handling of it.

The court adopted a two-part test for whether an inmate’s use of the prison grievance process is thwarted by misrepresentation: (1) whether the instruction was the sort that a reasonable inmate would rely on, and (2) whether it was misleading enough to a reasonable inmate to interfere with use of the grievance process. Finding both prongs satisfied here, the court reversed.

Joining Krause were Jordan and Greenaway, Jr. Arguing counsel were Leticia Chavez-Freed of Chavez-Freed Law for the prisoner, Tiffany Temas of Weber Gallagher for the defendant prison employees, and Howard Hopkirk for the state DOC.


In addition to today’s lone precedential opinion , the Court also issued two others yesterday:

Wayne Land & Mineral Grp. v. Del. River Basin Comm’n—civil—reversal—Fisher

The Third Circuit vacated a district court’s ruling on the merits on three Pa. Republican state senators’ motion to intervene in a long-running fracking lawsuit, holding that the court was required to consider fully whether the senators need to establish Article III standing.

Joining Fisher were Restrepo and Roth. Arguing counsel were Matthew Haverstick of Kleinbard for the senators, Kenneth Warren of Warren Environmental Counsel for one appellee, and Jordan Yeager (formerly of Curtin & Heefner, now a county judge) for other appellees.

U.S. v. Reyes-Romero—criminal—reversal—Krause

Defendants who prevail against their federal criminal prosecution are eligible by statute to recover attorney’s fees and costs if the government’s position was “vexatious, frivolous, or in bad faith.” Here, the Third Circuit reversed a district court’s award under this  provision, acknowledging “faulty processes” by the government overall but concluding that this “was not based on the type of pervasive prosecutorial misconduct” required. The court rejected the defendant’s threshold arguments that (a) the government’s failure to appeal the underlying dismissal barred it from challenging its factual rulings in the fee litigation, and (b) the government’s failure to raise issues in the fee litigation that it had litigated in the underlying dismissal barred it from raising them on appeal from the fee award.

Joining Krause were Smith and Hardiman. Arguing counsel were Donovan Cocas of the WDPA US Attorney’s office for the government and Adrian Roe of Roe & Simon for the erstwhile defendant.

New opinion: Third Circuit upholds arbitration denial in rental-car-charges case

Bacon v. Avis Budget Group—civil / arbitration—affirmance—Shwartz

The Third Circuit today affirmed a district court’s denial of a motion to compel arbitration brought by a rental car company based on language that was (a) on the back of the car-rental form and (b) on the rental websites. The agreement some of the renters signed purported to incorporate terms set out “in the rental jacket,” but the court held that that term didn’t indicate clearly enough what the rental jacket was, and video of the rentals showed renters signing without seeing or being told about the terms on the back.  The court held that the website evidence failed because the defendants failed to produce admissible evidence about the sites’ contents and design. The court also held that it had appellate jurisdiction over the arbitration denials, including a denial based on a disputed fact to be decided at trial and a denial that in essence was without prejudice subject to additional discovery.

Joining Shwartz were Ambro and Bibas. Arguing counsel were Kim Watterson of Reed Smith for the rental car companies and Greg Kohn of Nagel Rice for the renters.

Three new opinions

The Third Circuit issued these 3 decisions on Friday.

Fischbein v. Olson Research Group—civil—reversal—Greenberg

Faxed solicitations to participate in paid market-research surveys are advertisements subject to the Telephone Consumer Protection Act’s bar on unsolicited fax ads, the Third Circuit held. The faxes’ offer of payment (even if described by the fax sender as an honorarium) for completing the surveys makes them an advertisement under the TCPA.

Joining Greenberg was Restrepo. Jordan dissented, arguing that the Court’s interpretation was contrary to the TCPA’s language. Arguing counsel were Philip Bock of Chicago for the disgruntled fax receivers, and, for the fax senders,  Samantha Southall and Patrick Doran of Buchanan Ingersoll and Francis Earley of New York.


Francisco-Lopez v. AG—immigration—reversal—Rendell

In 2012, a immigrant from Guatemala who was a lawful permanent resident pled guilty to a crime. In 2016, the Board of Immigration Appeals adopted a new standard defining crimes involving moral turpitude (CIMT). The government then initiated removal proceedings against the man on the theory that his conviction was for a CIMT, and the BIA ruled against him by applying its 2016 standard retroactively. Joining four other circuits, the Third Circuit ruled that the BIA should not have retroactively applied its decision.

Joining Rendell were Shwartz and Scirica. Arguing counsel were Lisa Kasdan of the Law Office of Marcia S. Kasdan for the petitioner and Craig Newell, Jr., for the government.

[UPDATE- the Court issued an amended opinion on August 13, deleting a specified part of footnote 5. The new opinion is now linked above, the old opinion is here.]


US v. Bradley—criminal—reversal—Jordan

The Third Circuit reversed a district court’s ruling suppressing evidence from a vehicle stop for speeding where the officer found cocaine in a backpack in the trunk, remanding for a determination whether the drugs would inevitably have been discovered during a valid inventory search upon impounding the vehicle because the driver’s license was suspended.

Joining Jordan were Ambro and Shwartz. Arguing counsel were Scott Ford for the government and Ronald Krauss of the MDPa defender for the driver.

New opinion reversing denial of motion to compel arbitration

Darrington v. Milton Hershey School—civil / arbitration—reversal—Porter

The Third Circuit today reversed a district court’s motion to compel arbitration because the applicable contract, a union collective bargaining agreement, “clearly and unmistakably” waived a judicial forum. The suit alleged discrimination and retaliation after two school employees were fired shortly after complaining about the school’s mandatory religious programming. The Third Circuit applied the clear-and-mistakable standard to the arbitrability of a state-law claim, and it declined to adopt other circuits’ bright-line tests for deciding whether waivers are clear and unmistakable.

Joining Porter were Greenaway, Jr., and Matey. Arguing counsel were Michael Jones of Eckert Seamans for the appellants and Katherine Oeltjen of Console Mattiacci Law for the appellees.

New opinion allowing overview testimony at a criminal trial

U.S. v. Lacerda—criminal—affirmance—Porter

The Third Circuit today affirmed three defendants’ convictions for mail and wire fraud arising from a business that purported to help customers cancel or modify their vacation-property timeshare. The court held that it was not an abuse of discretion to admit testimony from an FBI special agent providing a lengthy narrative overview of the investigation. The court also rejected a long list of challenges to the defendants’ convictions and sentences.

Joining Porter were McKee and Roth. The case was decided without oral argument.

Catching up on 11 Third Circuit opinions

The Third Circuit has issued 11 opinions since my last blog post two and a half weeks ago. From any readers who use my blog to keep current on the court’s precedential opinions, I beg forgiveness. I’ve been buried under an avalanche of pro bono COVID-19 litigation and am only today emerging blinking into the sunlight, and likely not for long. So let’s not tarry.


PPG Industries v. U.S.—civil / environmental—affirmance—Fisher [May 4]

The federal government’s control of a chemical plant during the two world wars does not render it liable to the plant’s current owners for environmental clean-up costs under CERCLA.

Joining Fisher were Restrepo and Roth.


Advanced Fluid Systems v. Huber—civil—affirmance—Jordan [April 30]

The Third Circuit affirmed a judgment under Pennsylvania’s Trade Secrets Act arising from a “sorry story of disloyalty and deception piled upon deception” involving an employee who stole information from his employer. The appellants argued that the employer couldn’t prevail under the TSA because it did not own the trade secrets, but the Third Circuit held that lawful possession was enough.

Joining Jordan were Greenaway, Jr., and Krause.


N.J. Coalition of Automotive Retailers v. Mazda Motor—civil—reversal—Greenberg [April 28]

The Third Circuit reversed a district court’s ruling that an auto-dealer trade association lacked standing to sue an automaker under New Jersey’s Franchise Protection Act.

Joining Greenberg were Jordan and Restrepo.


Calderon-Rosas v. A.G.—immigration—reversal—Krause  [April 27]

In what looks to be a major immigration-law ruling, the Third Circuit held that (1) it has jurisdiction over ineffective-assistance-of-counsel claims by immigration petitioners seeking  discretionary cancellation of removal and asylum (an issue on which the circuits are split) and, on the merits, (2) the petitioner here was denied effective assistance in proceedings before the Immigration Judge and this entitles him to remand to re-open the removal-cancellation proceeding.

Joining Krause were Greenaway, Jr., and Restrepo. Arguing counsel were Petra Fist of P&D Solutions for the petitioner and Christin Whitacre for the government.


Dooley v. Wetzel—prisoner rights—reversal—Rendell [April 27]

A district court when it dismissed a pro se prisoner’s complaint sua sponte and without leave to amend and declared that the dismissal counted as a strike against him under the Prison Litigation Reform Act.

Joining Rendell were Jordan and Scirica.


U.S. v. Sims—criminal / sentencing—affirmance—Hardiman [April 24]

The base offense level for conspiracy to commit sex trafficking by force, fraud, or coercion, 18 USC 1594(c), is level 34, the base offense level of the underlying substantive crime, the Third Circuit held, splitting with the Ninth Circuit.

Joining Hardiman were Greenaway, Jr., and Bibas.


Ali v. Woodbridge Twp.—civil / employment discrimination—affirmance—Greenaway, Jr. [April 22]

The Third Circuit denied an appeal brought by a Muslim man who was fired after (1) he included in his high school history lesson about 9/11 a Saudi Daily article that said the U.S. was responsible for the attacks and which contained a inks to an anti-Semitic article and (2) students in his class submitted Holocaust-denying papers.

Joining Greenaway, Jr., were Jordan and Krause.


In re: Lamictal Direct Purchaser Antitrust Litig.—antitrust—reversal—Ambro [April 22]

The Third Circuit held that a district court erred in granting class certification in an antitrust case without conducting a “rigorous analysis of the competing expert reports that rely on competing evidence and assume competing facts” and incorrectly conflating injury with damages.

Joining Ambro were Krause and Phipps.


Hope v. Warden York County Prison—habeas—Smith [April 21]

After a district court entered a temporary restraining order that directed the immediate release of 20 immigration detainees due to COVID-19 risk, the government appealed. The detainees argued that the Third Circuit lacked jurisdiction to hear an appeal from a TRO, but the Third Circuit disagreed. While normally a TRO is not immediately appealable, the TRO here was appealable because it mandated affirmative relief (release) instead of preserving the status quo and because “there is a substantial possibility that the petitioners’ release will result—if it has not already—in serious and potentially irreversible consequences.” The opinion was limited to the question of appellate jurisdiction and did not reach the merits.

Joining Smith were Hardiman and Scirica.


Fogle v. Sokol—civil rights—partial reversal—Matey [April 20]

The introduction:

Lewis James Fogle spent more than three decades in
prison for a crime he says he did not commit. Now free, he
alleges that his incarceration was no accident, sketching a
widespread conspiracy by law enforcement officials to violate
his civil rights. Implicated in this alleged scheme are former
Indiana County District Attorney Gregory Olson, former
Indiana County Assistant District Attorney William Martin,
and their one-time employer, Indiana County. They all raise
the shield of absolute immunity, a judicially created exception
to 42 U.S.C. § 1983. But the immunity from civil liability
enjoyed by prosecutors hinges on the sanctity of our judicial
process, not “any special esteem.” Kalina v. Fletcher, 522 U.S.
118, 127 (1997) (internal quotation marks omitted). And so
only truly prosecutorial functions, not investigative conduct,
justify complete protection from suit. Fogle’s complaint
alleges acts by Olson and Martin that, taken as true, fall outside
the narrow doctrine of absolute immunity and survive a motion
to dismiss. Fogle’s claims against Indiana County survive too
because there is no exception to the final judgment rule
allowing us to review municipal liability in this appeal. Thus,
we will affirm the District Court’s order denying Olson and
Martin’s motion to dismiss based on absolute immunity and
dismiss Indiana County’s appeal for lack of jurisdiction.

Joining Matey were Krause and Quiñones Alejandro EDPA by designation.


James v. NJ State Police—civil rights—reversal—Porter [April 21]

The Third Circuit reversed a district court’s denial of qualified immunity for a police officer who shot and killed a man with schizophrenia who did not immediately obey the officer’s command to drop a weapon that the schizophrenic man was pointing at his own head.

Joining Porter were Hardiman and Phipps.

New opinion—assisting police against Salvadoran gangs can establish asylum eligibility

Guzman v. AG—immigration—reversal—Roth

“After overhearing the murder of his two next-door neighbors and facing repeated threats from local gang members for his perceived role in assisting law enforcement, petitioner Brayan Antonio Guzman Orellana left his home in El Salvador and entered the United States seeking relief,” begins today’s Third Circuit opinion. The court vacated the ruling of the Board of Immigration Appeals against Guzman on his asylum claim, holding that (1) persons who publicly provide assistance against major Salvadoran gangs qualify as a particular social group (and thus are eligible for asylum and withholding of removal), (2) Guzman failed to prove persecution on account of political opinion, and (3) the BIA erred in concluding that Guzman was unlikely to face torture upon removal.

Joining Roth were Restrepo and Fisher. Arguing counsel were Brian Maida of Cravath Swaine for the petitioner and Greg Mack for the government.

New opinion

Walker v. Coffey—civil—affirmance—Restrepo

Appellant Carol Lee Walker brought suit against a
prosecutor and special agent from the Pennsylvania Office of
the Attorney General (OAG) alleging they violated provisions
of the Stored Communications Act, 18 U.S.C. §§ 2701 et seq.
(SCA), by inducing her employer, Pennsylvania State
University (Penn State or University), to disclose her work
emails with a facially invalid subpoena. Because the
Appellees’ actions, although improper, did not violate the
SCA, we will affirm the dismissal of Walker’s claims.

Joining Restrepo were Chagares and Jordan. Arguing counsel were Geoffrey Richard Johnson of Stevens & Lee for the appellant and Claudio Tesoro of the Pa. Attorney General’s office for the appellees.

Two interesting new opinions

McCafferty v. Newsweek Media Gp—civil / First Amendment speech—Bibas—affirmance

After a 12 year-old boy voiced his support for President Trump in an online video, print media interviews, and TV appearances, Newsweek magazine published an article sharply critical of the boy and others like him, describing them as “Trump’s Mini-Mes” and “defending raw racism and sexual abuse.” The boy’s parents sued Newsweek, alleging it defamed the boy and cast him in a false light. The district court granted the magazine’s motion to dismiss, and today the Third Circuit affirmed:

the article contained derogatory opinions based only on disclosed facts, which are not enough to show defamation or false light. Even if they could, C.M. does not plead facts showing actual malice, which the First Amendment requires of those who step into the political spotlight.

Joining Bibas were Ambro and Krause. The case was decided without oral argument.


US v. Tyler—criminal—reversal—Shwartz

The Third Circuit today reversed a district court’s ruling setting aside a criminal conviction on sufficiency-of-the-evidence grounds:

Because (1) the District Court erred in ruling that Fowler v. United States, 563 U.S. 668 (2011), applies only to situations where a defendant does not know the identity of a specific law enforcement officer to whom the witness would have communicated; and (2) there was sufficient evidence upon which a rational juror could conclude that (a) Tyler acted with intent to prevent Proctor from communicating with law enforcement, and (b) there was a “reasonable likelihood” that she would have communicated with a qualifying law enforcement officer had she not been murdered, we will reverse and direct the District Court to reinstate the verdict and proceed to sentencing.

Judge Rendell dissented, beginning, strikingly,:

I disagree with the Majority on one essential issue— Willie Tyler’s intent. Judge Jones, an experienced trial judge, vacated the jury’s verdict based on this issue, concluding that it was mere speculation that Willie acted with the intent to prevent Proctor from communicating with law enforcement. I was initially skeptical that this rejection of the jury’s verdict was warranted, but upon further reflection have come to believe that it was entirely correct.

Joining Shwartz was Scirica, with Rendell dissenting in part. Arguing counsel were Carlo Marchioli for the government and Quin Sorenson for the defendant.

Third Circuit issues updated notice of clerk’s office procedures during the pandemic

Yesterday the Third Circuit posted an amended notice about the clerk’s office’s procedures during the pandemic. A direct link to the notice is here.

Among other things, the notice:

  • provides an email address,, for filing things that can’t be filed on ECF because there’s no case number yet;
  • notes that “litigants who cannot file through the Court’s CM/ECF system”—I’d guess this refers primarily to pro se litigants—also may use the email to file;
  • and explains that the parties may file by mail or using a drop box that the court has installed on the first floor of the courthouse.



New opinions: one new, one amended

Ricketts v. AG—immigration—affirmance—Jordan

The Third Circuit today denied an immigration’s petition for review challenging the Board of Immigration Appeals’ ruling against him, holding that, even if the BIA erred by treating a procedural rule as jurisdictional, remand would be futile and such futility is a basis for denying the petition.

Joining Jordan were Greenaway, Jr., and Fisher. Arguing counsel were Noah Weiss of Williams & Connolly for the petitioner and Benjamin Moss for the government.


Also today the Court granted an unopposed motion to amend and issued an amended opinion in Raia, the important COVID-19 opinion it originally issued Friday. The amended opinion deleted  language that seemed to erroneously raise the exhaustion bar for petitioners seeking sentence reductions under 18 USC § 3582.

So, uh, about that op-ed

I’ve never been comfortable talking about my own pending cases here on the blog or in the media. Offhand I can’t remember a time I’ve ever mentioned a pending case of mine here (unless this counts), and even my post-decision comments have been by no means chatty. I’m a firm believer that briefs and oral arguments are where you persuade circuit judges, not “oh and another thing” blog posts or snappy soundbites in the paper. Scotus practitioners now regard “virtual briefing” as part of the gig, and maybe they see my squeamishness as naive or passé. But I’m not persuaded yet that virtual briefing has trickled down to circuit practice, nor that it should.

And so the situation I’ve put myself in now is an unfamiliar one: I wrote an op-ed that discusses a pending case of mine. For anyone who cares, I want to explain briefly how it came to pass.

Back in January, before I’d heard the word coronavirus, I was appointed by the Court to represent an indigent defendant named James Davis for his appeal from his criminal conviction. His appeal remains pending, currently on hold until the Supreme Court decides a potentially related case.

Last month I came to believe that Davis is at risk from covid-19 infection, so I filed a motion for his release pending appeal, which the government opposed and which a two-judge motions panel denied on March 20. The order denying the motion stated that Davis may renew the motion if he’s diagnosed with covid-19.

After denial of the motion, I came to believe that it was important that more lawyers try to get vulnerable clients out of prison, and also that more courts be granting such requests, without requiring a covid-19 diagnosis.

To that end, after the court ruled, I  wrote an op-ed using Davis’s case to illustrate what I thought lawyers and courts should do in light of the pandemic and submitted it to the Philadelphia Inquirer on March 22. (Getting no response from the Inquirer, :(, I tweeted along similar lines a few days later.)

Submitting an op-ed about a case of mine made me nervous, frankly. But because I saw it as an unusual and urgent situation, and because the court had ruled on the motion already, I went ahead and sent it off.

Flash forward a couple weeks. As various new facts came to light, I decided to file a renewed motion for Davis’s relief on April 1. The government has again opposed the motion and it now is pending for decision before the court. [UPDATE: it was denied.]

The day after I filed the renewed motion, April 2, the Inquirer contacted me to say it had (finally) decided to run my op-ed. After minor updating tweaks, my op-ed ran online starting Friday and will be in the print edition tomorrow.

The timing of the op-ed’s publication ain’t what I’d have chosen. I wish it ran earlier, and I wish it hadn’t run while my renewed motion in the case is pending. I weighed telling the paper not to run it, fearing it could reduce my client’s odds of being released now. But in the end I decided my fear was unfounded and my message was one I still hoped the public would hear.

If you’ve read this far, (a) sorry for the self-absorption, and (b) I’m not certain I’ve made the right choices as an advocate here and my purpose isn’t to persuade you that I have. This is all new to me. I think my point boils down simply to this: appearances notwithstanding, I didn’t decide to suddenly start working the refs.

For what it’s worth.

Influential criminal-law expert urges reconsideration or rehearing for Third Circuit’s Raia case

Professor Douglas Berman posted about Friday’s big decision in Raia yesterday on his Sentencing Law & Policy blog. His in-depth post is entitled, “Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A).” A link is here.

(I posted about Raia yesterday, offering my view that it misstated the statute’s full-exhaustion-or-30-days requirement as it were a full-exhaustion-and-30-days requirement. Berman’s post does not address that point.)

The thrust of Berman’s post is that language in Raia mistakenly suggests that the 30-day rule of 3582 is jurisdictional rather than subject to waiver by the prosecution or courts (as SDNY found earlier this week, here).  Here’s the heart of his post:

[T]hings go sideways as the Third Circuit panel says the following (which I am calling dicta because it does not respond to claims actually brought by the litigant):

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1.  That would allow the District Court to consider Raia’s compassionate-release request in the first instance.

But any remand would be futile.  As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.  Although the District Court’s indicative ruling did not mention the exhaustion requirement, it presents a glaring roadblock foreclosing compassionate release at this point.

Accordingly, since Rule 3(a)(2) is inapt and since remanding the matter under Rule 12.1 would be futile, we will deny Raia’s motion outright.

This “futile” language here creates the problematic impression that “30-day lapsing/exhaustion” language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls “nonjurisdictional claim-processing rules.”  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the “30-day lapsing/exhaustion” language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be met given the equities of a particular case.

(Emphasis mine.)

Berman expresses hope that counsel will seek reconsideration or emergency en banc review. He concludes, “Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.”

Third Circuit issues a ruling that could have a big impact on whether many prisoners win release due to the COVID-19 pandemic

United States v. Raia—criminal / covid-19—denial—Smith

The Third Circuit yesterday denied a prisoner’s motion for compassionate release based, in part, on the inmate’s risk of COVID-19 infection. It’s an important opinion that I believe will have broad and immediate impact, but it appears to me to contain an error.

[Disclosure: I’m active in Covid-19 release litigation on behalf of inmates, but not this case and not any that involve the issue that arose here.]

“Compassionate release” is a shorthand that refers to statutory authority to release inmates from prison early, before the end of their original prison terms, for specified reasons. Before 2018, the only ones allowed to request compassionate release for a prisoner was the Bureau of Prisons; the First Step Act changed that, allowing prisoners to file compassionate-release motions for the first time.

But there’s a catch: before they’re allowed to file their motions for compassionate release, they have to seek it from the BOP first. The statute (18 USC § 3582 (c)(1)(A)) says the court can grant a reduction only after either “[1] the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or [2] the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is shorter.” (Emphasis mine.) The basic idea is that, if the prison doesn’t promptly grant the request, the prisoner can either [1] keep on trying to get the prison to release him, or [2] go right to court.

But the second sentence of today’s opinion turns the statute’s “or” into an “and,” stating: “But before they make such requests, defendants must ask the Bureau of Prisons (BOP) to do so on their behalf, give BOP thirty days to respond, and exhaust any available administrative appeals.” (It appears to repeat the mistake later, stating that the defendant failed to exhaust because “BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.”)

Application of the 30-day rule is a big deal. Compassionate release is the most broadly applicable tool available to courts, by far, to release prisoners during the pandemic. The more rigidly courts interpret the rule, the more people in prison die. I don’t envy judges having to make these calls with stakes so high and time so short.

Anyhow. The court denied the motion because (1) district courts must decide such motions first and the court here hadn’t, and (2) release would be futile because of exhaustion. Did the and/or issue change the outcome on futility? I’m not sure.

The court closed with this notable paragraph:

We do not mean to minimize the risks that COVID-19 poses in the federal prison system, particularly for inmates like Raia. But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread. See generally Federal Bureau of Prisons, COVID-19 Action Plan (Mar. 13, 2020, 3:09 PM), Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added—and critical—importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one. Memorandum from Attorney Gen. to Dir., Bureau of Prisons 1 (Mar. 26, 2020), So we will deny Raia’s motion.

Joining Smith were Ambro and Chagares. The matter was decided without oral argument.


The Court issued two other opinions today. I’ll be quick.

US v. James—criminal—affirmance—Shwartz

The Court today granted panel rehearing and issued an amended opinion still affirming the fraud conviction of a former Virgin Islands senator and author of the Manly Manners trilogy. Judge Shwartz’s rehearing order gloriously and majestically identifies where the panel made changes to the prior one. (The order says that “[t]he majority” made changes to at specified places, which could mean a judge once planned to dissent but more likely just refers to the majority it took for panel rehearing to be granted.)

Shwartz was again joined by Smith and McKee.


US v. Folk—habeas—affirmance—Porter

The Third Circuit affirmed the denial of a 2255 motion raising a career-offender issue. The court also declined to issue a certificate of appealability for a challenge to an aggregate drug weight.

Joining Porter were Hardiman and Phipps.


Another BIA reversal, a unanimous en banc ruling, and two more

The Third Circuit issued significant rulings today and yesterday, including an en banc ruling yesterday. Please pardon my uninsightful post about them, I’m too busy now to give them the attention they deserve.


Doe v. A.G.—immigration—reversal—Restrepo

Petitioner fled his home country of Ghana and entered the United States without authorization after his father and neighbors assaulted him and threatened his life when they discovered that he was in a same-sex relationship. Petitioner seeks asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection from removal under the Convention Against Torture (CAT), because he fears being persecuted or tortured on account of his sexual orientation and identity as a gay man if returned to Ghana – a country that criminalizes same-sex male relationships and has no proven track record of combatting widespread anti-gay violence, harassment and discrimination. The Immigration Judge (IJ) denied his application and ordered his removal, and the Board of Immigration Appeals (BIA) affirmed.

He now petitions this Court for review of the BIA’s final decision. He argues that the BIA erred in finding, among others, that he had not suffered past persecution and did not have a well-founded fear of future persecution. For the following reasons, we will vacate the BIA’s decision and remand for further proceedings consistent with this opinion.1

Joining Restrepo were Roth and Fisher. Arguing for the petitioner were law school students Paige Beddow and Scott Cain, while Jonathan Ross argued for the government. The court ” acknowledge[d] and thank[ed] the instructors and students from the Immigration Law Clinic at West Virginia University College of Law for their skillful pro bono representation of the petitioner in this appeal.”

[Note: on April 16 the court issued an amended opinion to remove the petitioner’s name. I’ve updated the post and the link.]


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

Appellant, Kaboni Savage, was convicted of drug
offenses, money laundering, and witness tampering in 2005.
For those crimes, he was sentenced to 30 years’ imprisonment,
a special assessment of $1,400, and a fine of $5,000. The fine
has been periodically collected from Savage’s prison trust
account by the Federal Bureau of Prisons under the Inmate
Financial Responsibility Program. Pursuant to 18 U.S.C.
§ 3572(d)(3), Savage asked the District Court to modify his
judgment and provide that installment payments be made
directly to the court on a fixed schedule, based on a material
change in his economic circumstances. The issue before us is
whether the District Court properly denied Savage’s motion to
modify his fine payment schedule for a lack of jurisdiction
under § 3572(d)(3). For the reasons that follow, we conclude
that the District Court properly denied Savage’s request based
on a lack of jurisdiction.

Joining Fuentes were Shwartz and Fisher. The appeal was decided without oral argument.


Physicians Healthsource v. Cephalon—civil—affirmance—Greenaway, Jr.

In this digital age with myriad forms of communication, faxes no longer dominate, as they once did. Yet, faxes are the focus of our attention today. Although complicated by a phalanx of parties, the essence of this dispute is whether a pharmaceutical company violated a federal statute by impermissibly sending two faxes to a doctor.

The plaintiff-appellant in this case is Physicians Healthsource, Inc. (“PHI”), the prior employer of the doctor, who was the recipient of the faxes. The appellees in this case are Cephalon, Inc., Cephalon Clinical Partners, L.P., and Cephalon Development Corporation (collectively “Cephalon”), and SciMedica Group, LLC and SciMedica Group Marketing Research and Consulting, LLC (“SciMedica” collectively with
Cephalon “Defendants”).1 Cephalon drug representatives met with the PHI doctor on multiple occasions to discuss various pharmaceutical drugs. The two faxes in dispute were sent to the PHI doctor on behalf of Cephalon.

PHI believes these faxes were unsolicited and thus sent in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), Pub. L. No. 102-243, 105 Stat. 2394, as amended by the Junk Fax Prevention Act of 2005 (“JFPA”), Pub. L. No. 109-21, 119 Stat. 359 (codified as amended at 47 U.S.C. § 227, collectively referred to herein as the “TCPA”). Additionally, PHI argues that if the faxes are found to be solicited, they nevertheless violated the TCPA by failing to include opt-out language.

The District Court granted summary judgment in favor of Defendants, finding that there was no genuine dispute of material fact that the faxes were solicited and that the TCPA does not require solicited faxes to contain opt-out notices. For the reasons detailed below, we will affirm.

Joining Greenaway, Jr., were Porter and Cown. The appeal was decided without oral argument. Decided 3/30.


Riccio v. Sentry Credit—civil—affirmance—Smith (en banc)

This case presents a question of statutory
interpretation: does 15 U.S.C. § 1692g(a)(3) allow debtors
to orally dispute a debt’s validity?

It also presents a question of stare decisis: should our
en banc Court resolve a circuit conflict by overturning a
three-decades-old panel decision which has been eroded
by intervening Supreme Court authority?

Because we answer both questions affirmatively, we
will overrule Graziano v. Harrison’s contrary
interpretation of § 1692g(a)(3) and affirm.

The en banc court’s ruling was unanimous. Arguing counsel were Joseph Jones of Jones Wolf for the appellant and Jacob Cohn of Gordon Reese for the appellee. Decided 3/30.

New opinion

In re: Kareem Sampson—habeas corpus—affirmance—per curiam

Yesterday the Court denied a pro se petition to file a successor motion under § 2255 that was based on Rehaif v United States, 139 S.Ct. 2191 (2019), because Rehaif did not set forth a new rule of constitutional law.

The panel was Jordan, Krause, and Matey, and the petition was denied without oral argument.

Third Circuit’s courthouse closed after two attorneys develop coronavirus symptoms [updated]

The James Byrne U.S. Courthouse, which houses the Third Circuit as well as the EDPA district court, was ordered closed today through March 29 by district court Chief Judge Juan Sánchez. The closure order is posted on the EDPA website, direct link here.

The order reads:

The Court having been informed that two attorneys who have appeared in court in the James A. Byrne U.S. Courthouse in the past two weeks are currently displaying symptoms consistent with COVID-19, and to protect the health and safety of the public, staff, and judicial officers from further exposure to or spread of the disease,

With the concurrence of the Facility Security Committee, including the U.S. Court of Appeals for the Third Circuit, the Circuit Executive’s Office, and the U.S. Marshal, and in consultation with GSA, it is ORDERED the James A. Byrne U.S. Courthouse in Philadelphia, Pennsylvania will be closed from noon on Wednesday, March 25, 2020, through Sunday, March 29, 2020. No one will be permitted to enter the building during this closure with the exception of GSA-authorized cleaning personnel. The Byrne Courthouse will reopen for official business on Monday, March 30, 2020.

The United States District Court for the Eastern District of Pennsylvania remains open for official business. The Court’s Electronic Case Filing (ECF) system is not affected by the closure, and parties may continue to file electronically and email documents to the Clerk’s Office pursuant to the Standing Orders and other instructions on the Court’s website. The drop box in the lobby of the Byrne Courthouse will not be available until Monday, March 30, 2020.

The Court’s website is being updated regularly. Consult the Court’s website for further guidance:

The Third Circuit has posted the following important notice regarding procedures during the closure:

The Byrne Courthouse is CLOSED beginning Wednesday, March 25, 2020 until Monday, March 30, 2020

Wednesday, March 25, 2020

The Byrne Courthouse is CLOSED beginning Wednesday, March 25, 2020 until Monday, March 30, 2020. (See Attached EDPA Temporary Courthouse Closure Order Below.)

The Third Circuit Clerk’s Office is conducting remote operations during this time and will continue to process all electronic filings.

Counsel and pro se litigants who need to file a new original proceeding, such as a Petition for Review, a Petition for Writ of Mandamus or Prohibition, or a Motion for Leave to File a Second or Successive Habeas Petition may send the documents to the Clerk for filing via email addressed to

Litigants who cannot file through the Court’s CMECF system may also submit documents for filing by email addressed to  Please include the appeal number in the subject line of the email.

Any party who intends to file an emergency motion should call 267-299-4904 and leave a detailed message regarding the nature of the emergency and contact information.

New opinion–damage to ship not covered by all-risk policy

Chartis Property Casualty Co. v. Inganamort—maritime / insurance—affirmance—Jordan

The owners of a fishing vessel purchased an all-risk insurance policy on the ship that provided coverage against any non-excluded “fortuitous” loss. After the ship foundered at the dock in normal weather, the insurance company denied their claim because its investigation indicated the ship sank due to the owners’ failure to maintain it, and then if filed a declaratory-judgment action. Today, the Third Circuit held that the insureds bore the “not heavy, but … more than negligible” burden of proving fortuity, joining four other circuits, and affirmed the district court’s ruling that the owners did not meet their burden.

Joining Jordan were Greenaway, Jr., and Krause. Arguing counsel were James Beagle of Florida for the owners and Neil Mody of Connell Foley for the insurance company.

Tips for Third Circuit telephone oral arguments

The Third Circuit remains open for business during the coronavirus pandemic. That includes continuing to hold the oral arguments it had already scheduled, and continuing to schedule new ones too. There’s a full panel sitting this week, another next week, and one argument already scheduled for the following week.

The court has given the power to decide how to hold each argument—either in person or by audio-only phone conference—to each panel. I don’t know yet if the panel sitting this week is holding any in-person arguments. I do know that the lone argument last week was by phone, and I know that at least one of the arguments held this morning was by phone.

Since at least a good chunk of CA3 arguments are being done by phone, and since doing an appellate oral argument by phone is uncharted territory for almost all of us, I figured it might be helpful to offer a few suggestions for counsel preparing for one. Take my advice with a grain of salt; I helped counsel prepare for one of these CA3 phone arguments, but I haven’t done one myself.

Here are four tips plus a suggestion:

  1. Know the judges’ voices. If you’re not already able to identify the three judges on your panel by voice alone, fix that. If you’re having to guess about which judge just asked you or your opponent a question, you’re at a real disadvantage. Listen to past argument audio (if you’re really stuck, try to find a case where the judge is the only man/woman on the panel) until you’re confident you’ve got it.
  2. Be certain you know how to pronounce their names correctly. You’re more likely to need to say the judges’ names (to refer to an earlier question, for example) because you can’t just look at the judge when referring to “your Honor’s question.” Make sure you know them. Here’s a guide.
  3. Focus even harder on shutting up when a judge talks. This is always critical, but it’s even harder when you can’t read judges’ body language to see if they’re trying to jump in. Do your very best.
  4. Take advantage of your invisibility. Arguing by phone his harder in dozens of ways, but the bright side is that the judges can’t see you. Eye contact doesn’t matter, and no one cares if you’re standing serenely at a podium. That means you can use written materials more than you ever could during a normal argument. Take full advantage. But still make sure you’re listening intently when judges are asking questions, and still avoid reading especially after your intro.

In addition to those four tips, I also have a suggestion. This one feels like more a matter of opinion, so I don’t offer it as the gospel truth and I expect reasonable folks will see it differently:

Stay focused. The best way to show your respect for the court is to respect their time by being prepared and focused, as always. You may be tempted to open with heartfelt remarks about the pandemic, or your gratefulness to the judges, or how you weren’t able to prepare as well, or how you’re sorry in advance if you talk over them by mistake, or the like. But I think you should resist the temptation. Trust the judges to know all that already, and leave any solemnizing remarks to them. Even in this extraordinary moment, ditch the wind-up and the throat-clearing and dive right in.

Preparing for argument can be overwhelming in the best of times. Expect it to be that much harder and more stressful now. Just be patient with yourself, and stay safe everyone.

UPDATE: here’s a smart post on the same topic on the Sixth Circuit Appellate Blog by former SDOH U.S. Attorney Benjamin Glassman. Unlike me, he’s actually done appellate oral arguments by phone.

The Third Circuit should stop holding live arguments to protect its judges

On reflection, I respectfully disagree with the Third Circuit’s current decision to continue holding in-person oral arguments.

I acknowledge that there are sound reasons supporting that decision. Allowing parties to request argument by phone reduces the risk of infection to attorneys and court staff on a case-by-case basis. Practicing social distancing themselves during continuing court operations reduces the risk of infection to judges, their clerks, and court staff. Leaving the decision to individual panels reflects the Third Circuit’s deeply felt culture of mutual respect among its judges. And, as the Court’s notice recognized, it has “constitutional and statutory obligations and responsibilities,” which are not lightly put aside even in a global emergency.

But, in my view, those sound reasons all are overwhelmed a simple fact: continuing to hold live arguments increases the risk of judges being infected by coronavirus and dying, and increasing that risk is intolerable. Live arguments require judges to leave their homes, go out into the world, travel to the courthouse, and be in the courthouse. It is true that I don’t know what measures the Court is taking to protect judges, but do I know that judges and clerks and court staff and lawyers are humans, and humans are fallible. Human mistakes now put federal judges’ lives in danger, at a moment in history when federal judges’ dying would amplify the emergency our nation already faces.

I admire the Third Circuit and its judges for their willingness to carry on with live arguments now. But I believe the Court owes it to the country to protect its judges as best it can, so I hope the Court reconsiders.

The Third Circuit responds to coronavirus

The novel coronavirus pandemic has transformed life in the United States with dizzying ferocity, so inevitably we’re all feeling its impact here in the Third Circuit. With offices, businesses, and schools across the circuit shut down for weeks to come, many are focused now on hunkering down with family, not keeping abreast of federal appellate doings. But the Third Circuit remains open, oral arguments remain scheduled, and filing deadlines remain in place. This post aims to summarize matters.

Yesterday the Third Circuit posted a notice on its website regarding court operations during the pandemic. The court is “open for business and will fulfill its constitutional and statutory obligations and responsibilities.” A direct link to the notice is here.

Anyone with a pending or upcoming Third Circuit case should read the entire notice, but here are highlights to note:

  • oral arguments will proceed as scheduled, with each panel deciding the manner of argument. “Parties may file a motion requesting to appear by audio conference.” The court has a normal slate of arguments scheduled next week before Judges Jordan, Restrepo, and Fuentes/Greenberg.
  • Parties seeking emergency relief are to leave a message for the Clerk’s Office at 267-299-4904.
  • Normally parties requesting extensions by phone per LAR 31.4 (first extensions on briefs of 14 days or less) must do so at least 3 days before the due date, but until normal operations resume the 3-day limit is relaxed.
  • Filing of paper copies and briefs and appendices is deferred.
  • 3-day grace period on filing deadlines.

Note, however: ” The due date for a notice of appeal, petition for review or other document that
confers jurisdiction on the Court is not altered by this notice. The filing dates for
those papers remain as stated in the statute or rule that confers jurisdiction.”

So appeals are still moving forward. Most filing deadlines are loosened a little, your paper copies can wait, and if you have oral argument you can ask to do it by phone, but, bottom line, you’re still on the hook.

The Third Circuit’s procedures are broadly in line with other circuits’, helpfully linked and summarized on Lawfare here.

Beyond court procedures, I’ve heard lots of discussion about what will befall the circuit conference scheduled to begin May 13. The court has made no announcement yet, and the registration page remains live, so it’s reasonable to infer it hasn’t yet decided. My guess is that the odds of the conference going on as scheduled are more or less zero, and the choice will be between outright cancellation or postponing until fall. I don’t know the logistical challenges involved with postponing, and I’m a giant circuit-conference enthusiast, so I’m rooting for postponement.

I’ll end with one soapbox plea to my fellow lawyers. Many of us have our hands more than full trying to keep up with appeals while dealing with homebound-kid freakouts, non-homebound-older-parent freakouts, and all the other stresses of a pandemic-plus-economic-meltdown. So, yes, none of us will be at our best. But, no matter how frayed you get, do your level best to treat clerk’s office and court staff with the courtesy and patience they deserve. They’re keeping a federal circuit court humming under off-the-charts trying circumstances, and the last thing they need is any bonus headaches from us.

New opinion: Pa. sentence for loitering isn’t a sentence for loitering

U.S. v. James—criminal—affirmance—Fisher

Note: this opinion issued yesterday.

A man was convicted of possessing a firearm after a prior felony conviction and sentenced to  over eight years in federal prison. Of that over eight years, at least a year and a half resulted from his prior Pennsylvania misdemeanor conviction for loitering. The main issue on appeal was whether using the loitering conviction to increase his over-eight-year sentence was allowed under the Sentencing Guidelines. The Guidelines provide, “Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are never counted,” including “Loitering.”

Yesterday, the Third Circuit held that Pa. sentences for loitering aren’t covered by the Guidelines’ exclusion of sentences for loitering or anything similar. The intro explained:

Under the Federal Sentencing Guidelines, the sentences imposed for certain prior offenses, and for “offenses similar to them,” may not be counted in the calculation of an individual’s criminal-history score. U.S.S.G. § 4A1.2(c). One such offense is “[l]oitering.” U.S.S.G. § 4A1.2(c)(2). Yet there is (and has long been) a great variety of loitering provisions in force across the United States, and it is unclear which of those laws impose a sentence excludable under the Guidelines. In United States v.Hines, 628 F.3d 101 (3d Cir. 2010), our Court went some way toward resolving this difficulty. “Loitering” in § 4A1.2(c)(2), we said, covers a class of offenses that we called “loitering simpliciter,” and it does not reach a separate class that we dubbed “loitering plus.” 628 F.3d at 108. We then held that the defendant’s sentence under the New Jersey law at issue— which bars “wander[ing], remain[ing] or prowl[ing] in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance,” N.J. Stat. Ann. § 2C:33- 2.1(b)(1) (2019)—was countable because the offense is a form of loitering plus and, as applied to the defendant, was not sufficiently “similar to” the offenses that constitute loitering simpliciter.

The present appeal asks us to decide this same question for a sentence under Pennsylvania’s anti-loitering statute, 18 Pa. Cons. Stat. § 5506 (2019). Because that law is different from the New Jersey provision in important respects, we take this opportunity to clarify our understanding of “[l]oitering” in § 4A1.2(c)(2). We conclude that loitering simpliciter under the Guidelines encompasses all those offenses that do not require, either explicitly or by judicial interpretation, a purpose to engage in some type of unlawful conduct. On this understanding, we hold that the Pennsylvania law neither is a form of loitering simpliciter nor, as applied here, is sufficiently “similar to” the offenses that constitute that category. We accordingly will affirm the judgment of the District Court.

(Footnote omitted.)

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

New opinion–incorrect medical certifications can establish FCA liability

U.S. and N.J. ex. rel. Druding v. Care Alternatives—civil / qui tam —reversal—Greenaway, Jr.

Former employees of a hospice-care provider alleged that it admitted patients ineligible for Medicare and issued them medical certifications in order to increase the provider’s income from the government. The employees brought suit under the False Claims Act and presented an expert who opined that numerous medical certifications were inappropriate, while the provider’s expert disagreed. The district court granted the provider’s motion for summary judgment, ruling that the employees’ expert’s opinion didn’t create a triable dispute of fact because a doctor’s clinical judgment could never be false and because falsity required proof of “objective falsity.”

Today the Third Circuit reversed, rejecting the district court’s objective-falsity requirement and its bright-line rule that a doctor’s clinical judgment cannot be false. A claim for government-reimbursement can be false under the FCA if it rests on an incorrect certification of compliance with a statute or regulation, even if the certification wasn’t based on a separate false facts like made-up test results. The Third Circuit split with the Eleventh, which recently adopted an objective-falsity requirement.

Joining Greenaway, Jr., were Hardiman and Bibas. Arguing counsel were Russell Paul of Berger Montague for the former employees, Jason Popp of Alston & Bird for the provider, and Charles Scarborough of the DOJ appellate section for the government as amicus supporting the former employees.

New opinion: Third Circuit revives drivers’ wages suit against Uber Black

Razak v. Uber Technologies—civil—reversal—Greenaway, Jr.

Drivers for Uber’s limo service, Uber Black, sued Uber for violating the minimum-wage and overtime requirements of federal and state labor law. The district court granted summary judgment in favor of Uber because it concluded as a matter of law that the drivers had failed to show they were employees rather than independent contractors. Today, the Third Circuit vacated and remanded, holding that material factual issues precluded summary judgment, including over whether Uber exercised control over drivers and whether drivers could earn more through managerial skill.

Joining Greenaway, Jr. were Smith and Porter. Arguing counsel were Ashley Keller of Chicago for the drivers and former Mansmann clerk Robert Pritchard of Littler Mendelson for Uber.


New opinion: Third Circuit vacates BIA’s denial of asylum based on threats

Herrera-Reyes v. A.G.—immigration—reversal—Krause

Today the Third Circuit granted a petition for review from the Board of Immigration Appeals, again. The introduction:

This case presents the question whether and under what circumstances threats of violence may contribute to a cumulative pattern of past persecution when not coupled with physical harm to the asylum-seeker or her family. We conclude the Immigration Judge and the Board of Immigration Appeals erred in holding that Petitioner Jeydi Herrera-Reyes— a Nicaraguan national who received death threats from members of the governing Sandinista Party after her home was burned down, a convoy in which she was traveling came under gunfire, and a political meeting she was organizing was robbed at gunpoint—had not suffered past  persecution within the meaning of the asylum statute. We will therefore grant the petition for review and vacate and remand to the BIA.

After reviewing the circuit’s precedent on when threats can establish persecution, the court concluded that the BIA misapplied it in two ways:

First, although they purported to consider the incidents “cumulatively,” in practice they evaluated the threats to Petitioner in isolation and without accounting for the broader campaign of intimidation, harassment, and violence substantiated by the record; second, they treated the absence of physical harm to Petitioner herself as fatal to her claim without acknowledging the significance of violence to Petitioner’s property and close associates.

(Footnote and record cite omitted). On the first point, the court explained that the BIA “paid lip service to our cumulative approach” but failed to actually give the meaningful consideration required.

Joining Krause were Ambro and Bibas. The case was decided without oral argument.

New opinion: the BIA’s Third Circuit losing streak continues

Guadalupe v. AG—immigration—reversal—Roth

It’s been rough sledding for the Board of Immigration Appeals in the Third Circuit lately. The BIA has an unbroken string of precedential CA3 losses dating back to last July with EOHC, Rosa, Da Silva, Luziga, Fang, Yoc-US, and especially Quinteros.

That trend continued today. The Third Circuit held that the Supreme Court’s 2018 ruling in Pereira v. Sessions abrograted prior cases holding that a notice to appear which erroneously omits the time or date can be cured by inclusion of the missing info in a subsequent notice of hearing, rejecting the BIA’s conclusion to the contrary and splitting with the Sixth Circuit.

Joining Roth were Restrepo and Fisher. Arguing counsel were Marcia Kasdan of Hackensack, NJ, for the petitioner and Lindsay Corliss for the government.


New opinion: Third Circuit affirms a criminal conviction despite concerns

U.S. v. Diaz—criminal—affirmance—Rendell

The Third Circuit today affirmed a man’s conviction and sentence despite expressing concern about the district court’s handling of the man’s requests for new counsel and despite holding that the court erred in admitting a police officer’s expert testimony. I suspect both issues will have future application.

As to the new counsel issue, the man complained to the court before trial that his counsel wasn’t communicating with him and wasn’t letting him see discovery, requesting appointment of new counsel. The court directed counsel to file a response, which counsel didn’t do. But the lawyer later told the court that the issue was resolved and the client wanted him to remain on the case, and the client didn’t renew his new-counsel request at trial. The Third Circuit observed that additional steps by the district court “would have been appropriate and advisable,” but held that the district court didn’t abuse its discretion given the evidence that counsel was paying attention to the complaints, together with the fact that at trial the client didn’t request new counsel or complain about his counsel.

As to the expert-testimony issue, the man was prosecuted for conspiring in a drug operation and the police officer testified as an expert witness that the man worked as an underling in the operation. This testimony “obviously” violated FRE 701(b) because it gave the officer’s opinion an issue the jury had to decide. The officer also testified about that various recorded statements referred to drug activity—for example, that a text to the man that said “u got me waitin” meant waiting for a drug delivery. This testimony also violated Rule 701 because the statements contained no coded terminology requiring interpretation and the officer simply added his conclusion that they referred to drug dealing. The court said, “We find this testimony quite problematic and have no trouble concluding that the District Court should have excluded it.” But defense counsel (the same counsel about whom the man complained before trial) did not object to the Rule 701 violations, so the Third Circuit reviewed for plain error only and affirmed. The defendant wasn’t prejudiced enough by them given considerable valid evidence of guilt and effective cross-examination. And the error didn’t impact the integrity of the proceedings because the prosecutor didn’t rely on any of the improper testimony at closing.

Joining Rendell were Jordan and Scirica. Arguing counsel were Sean Camoni of the MDPa. U.S. Attorney’s office for the government and Jacob Schuman of the EDPa. Federal Community Defender’s office for the defendant.

Two new opinions: assignment of antitrust claims and the border-search exception

Walgreen Co. v. Johnson & Johnson—civil / contract—reversal—Jordan

A contract clause that forbids assignment of “rights or obligations under” the contract does not bar assignment of antitrust claims because antitrust claims arise by statute, not “under” the contract. the Third Circuit held today. The question arose in a suit brought by two retail pharmacies against a pharmaceutical company, asserting antitrust claims assigned to the pharmacies by the wholesalers who bought the drugs from the pharmaceutical companies. The Third Circuit rejected the pharmaceutical companies’ argument that, under New Jersey law, statutory claims engendered by a contract arise under it.

Joining Jordan were Scirica and Rendell. Arguing counsel were Scott Perwin of Florida for the pharmacies and William Cavanaugh Jr. of Patterson Belknap for the pharmaceutical companies.


U.S. v. Baxter—criminal—reversal—Smith

A man mailed a package from South Carolina to an address in the Virgin Islands. A border patrol drug-sniffing dog alerted to the package because it contained clothing that “smelled strongly of marijuana.” When border patrol opened it, they also found ammunition and gun parts inside, and the man was charged with illegal firearms transportation.

The district court granted the defendant’s motion to suppress under the Fourth Amendment, but the government appealed and today the Third Circuit reversed, holding that the search was permissible under the border-search exception even though the “border” here was between a U.S. state and a U.S. territory. The court rejected the district court’s view that a prior circuit case which had applied the exception to packages leaving the Virgin Islands didn’t apply to packages entering too.

Joining Smith were McKee and Shwartz. Arguing counsel were John Pellettieri for the government and Joseph DiRuzzo III of Florida for the defedant.

New opinion: Third Circuit affirms asbestos bankruptcy reorganization without a trust for future claims

In re: Energy Future Holdings Corp. (Fenicle)—bankruptcy—affirmance—Krause

The Third Circuit today held that the chapter 11 bankruptcy reorganization plan of an asbestos company did not violate the due process rights of latent asbestos claimants, even though it included a bar date and did not establish a trust to pay future claims, because the plan allowed individual claimants whose asbestos-related injuries manifest after the bar date to reinstate them. Today’s opinion is the latest in a long, proud line of Third Circuit cases grappling with how to adjudicate asbestos cases efficiently and fairly.

Joining Krause were Matey and Quiñones Alejandro EDPA by designation. Arguing counsel were Leslie Kelleher of Caplin & Drysdale for the appellant latent asbestos claimants and J. Christopher Shore of White and Case and Mark McKane of Kirkland & Ellis for the appellees.

New opinion [updated with a notable late-posted immigration opinion]

U.S. v. Bruce—criminal—affirmance—Shwartz

The Third Circuit today held that it was not plain error—indeed, was not error at all—to allow the government to seek a higher sentence based on his prior convictions. The defendant argued on appeal that the statute allowing the government to do so violated the non-delegation doctrine, but the court rejected this argument because it concluded that the statute delegated only executive power, not legislative power.

Joining Shwartz were Scirica and Rendell. The appeal was decided without oral argument.


E.O.H.C. v. Secretary USDHS—immigration—reversal—Bibas

This opinion posted late and I confess I haven’t read it all yet, but the introduction is a powerhouse:

This case raises the age-old question: “If not now, when?” Mishnah, Pirkei Avot 1:14. For aliens who are challenging their removal from the United States, the answer is usually “later.” But not always. And not here.

Federal district courts rarely have jurisdiction to hear disputes relating to removal. That is because the Immigration and Nationality Act (INA) strips them of jurisdiction over all claims “arising from any action taken or proceeding brought to remove” aliens. 8 U.S.C. §1252(b)(9). Instead, an alien must typically litigate his removal-related claims before an immigration judge. Then, after an order of removal, he may appeal to the Board of Immigration Appeals. Only after that may he file a petition for review with a court of appeals. Usually, district courts are not part of this process.

But some immigration-related claims cannot wait. When a detained alien seeks relief that a court of appeals cannot meaningfully provide on petition for review of a final order of removal, §1252(b)(9) does not bar consideration by a district court. Neither does §1252(a)(4), a provision that generally requires Convention Against Torture claims to await a petition for review. For if these provisions did bar review of all claims before the agency issues a final order of removal, certain administrative actions would effectively be beyond judicial review. If “later” is not an option, review is available now.

Appellants E.O.H.C. and M.S.H.S., his seven-year-old daughter, came from Guatemala through Mexico to the United States. The Government seeks to return them to Mexico while it decides whether to grant them asylum or instead remove them to Guatemala. They brought several claims in the District Court, challenging the Government’s authority to return them to Mexico. The District Court dismissed all their claims for lack of subject-matter jurisdiction. We see things differently.

One claim, involving the statutory right to counsel, arises from the proceedings to remove them to Guatemala, so it can await a petition for review. But the rest of the claims challenge the Government’s plan to return them to Mexico in the meantime. For these claims, review is now or never. So we will affirm in part and reverse and remand in part.

It appears to me that the key holding is that immigrant children and others threatened with interim return (versus permanent removal) under the so-called Migrant Protection Protocols (MPP) may bring constitutional and CAT challenges to the interim return in district court, free from INA jurisdiction-stripping provisions.

The opinion noted that the district court raised its ground for dismissal sua sponte and it declined supplemental briefing on the point. It disapproved:

Our adversarial system relies on giving each side a full and fair opportunity to air its best arguments and authorities. Rarely should a court address a complex issue without the benefit of briefing.

Joining Bibas were Ambro and Krause. Arguing counsel were Michael DePrince of Pepper Hamilton and Penn Law professor Tobias Barrington Wolff for the immigrants and Archith Ramkumar of the DOJ for the government.

Third Circuit’s ECF will be down all weekend

The Third Circuit emailed out the following notice late last night:

The electronic filing system (CM/ECF) will be undergoing maintenance beginning Saturday, February 15, 2020 at 12:00 AM to Tuesday, February 18, 2020 at 7:00 AM. Public filers will be unable to file documents during this time.

This should impact few if any filing deadlines since Monday is a federal holiday, see FRAP 26, but it is a longer-than-usual downtime, so be aware of it if you plan to file anything in the next few days.

Two new civil opinions [update: plus a late-posted criminal-appeal opinion]

UGI Sunbury LLC v. Permanent Easement for 1.7575 acres—civil—reversal—Matey

This appeal arises from a dispute over how much a natural-gas pipeline owner must pay to the owners of private land for easements across their properties. The district court rejected the pipeline company’s motion to exclude the landowners’ valuation expert, and it expressed agreement with one aspect of that expert’s testimony but found values substantially lower than he had offered.

On appeal, the Third Circuit held that the landowners’ expert testimony should have been excluded. It held that Federal Rule of Evidence 702 applies in bench trials and that the district court erred when it declined to assess the witnesses’s reliability before the bench trial.  It further held that the district court abused its discretion by failing to exclude it on both reliability and fit grounds. Finally, it held that the error was not harmless even though the district court hadn’t adopted the expert’s proposed values. The opinion’s discussion of the district court’s handling of the case was unusually critical.

Joining Matey were Krause and Quiñones Alejandro EDPA by designation. Arguing counsel were James Martin of Reed Smith for the pipeline owner, and Stephen Edwards of Laverly Law and Michael Faherty of Faherty Law Firm for the property owners.


In re: Somerset Regional Water Resources—civil—affirmance—Bibas

The Third Circuit today affirmed a district court’s ruling rejecting a borrower’s argument that the ambiguous loan agreement in dispute should be construed so that the collateral was limited to a worthless asset.

Joining Bibas were Ambro and Krause. The case was decided without oral argument.


UPDATE: after the court posted the preceding two opinions at the usual time, it posted a third one later in the day.

U.S. v. Hoffert—criminal—affirmance—Scirica

The Third Circuit affirmed a man’s convictions and sentences for filing false liens against federal agents who had denied his eccentric challenges to prior convictions. The court described the case as “the latest entry in a long and confusing saga.”

Evidently the man came to believe that he was being held without a valid sentencing order and, after a series of other fruitless filings, he filed liens against federal judges and other officials who’d denied him the relief he sought. He was convicted and sentenced to four years, consecutive to his existing sentence. On appeal, he challenged the statute of conviction as vague and overbroad and challenged the sufficiency of the evidence. The court rejected both arguments.

This is a sad, strange little case, the sort that sometimes receives cursory or even flippant treatment by courts. Judge Scirica’s opinion here does nothing of the sort. It is careful and fair, an understated model of evenhanded judging, just like its author.

Joining Scirica were Jordan and Rendell. Arguing counsel were Quin Sorenson of the MDPA federal defenders for the appellant and Jonathan Cantil of the WDNY U.S. Attorney’s office for the governemnt.

New opinion: Third Circuit clarifies narrowness of coram nobis writ, denying as untimely a man’s challenge to a prior conviction being used to deport him

Ragbir v. U.S.—immigration—affirmance—Smith

The Third Circuit today affirmed the district court’s denial of a man’s coram nobis challenges to an earlier conviction that the government now is using to removal him because he failed to provide sound reasons for waiting almost 10 years after his conviction to file his coram nobis petition.

Coram nobis is an English common-law writ that now functions as a gap-filler, offering a narrow vehicle for relief in situations where the petitioner’s release from custody bars him from using more common writs such as habeas corpus. Emphasis on narrow. The court today distilled prior caselaw to find five things the petitioner must show to qualify for coram nobis relief:

the petitioner (1) is no longer in custody; (2) suffers continuing consequences from the purportedly invalid conviction; (3) provides sound reasons for failing to seek relief earlier; (4) had no available remedy at the time of trial; and (5) asserted error(s) of a fundamental kind.

The opinion elaborates on the meaning of these five prerequisites. The petitioner here lost on the third one; he offered a series of reasons for delaying in raising his various claims, but the court rejected them all, emphasizing that “this Court does not apply a timeliness standard for coram nobis that is forgiving of delay and dilatoriness.”

Coram nobis is a somewhat obscure corner of the law, but, for future Third Circuit cases where it arises, today’s opinion will be a key case.

Joining Smith were Hardiman and Phipps. Arguing counsel were Amy Joseph and Daniela Ugaz of Washington Square Legal Services for the petitioner and Mark Coyne of the DNJ U.S. Attorney’s office for the government.

Registration is open for the 2020 Third Circuit Judicial Conference

The 2020 Third Circuit Judicial Conference will be May 13–15 in Philadelphia, and registration is now open. A direct link to the conference page, with an agenda, lodging info, and registration page, and more is here

Should you attend? If you practice in the Third Circuit, then yes, absolutely. It’s simply unbeatable for meeting members of the Third Circuit community, from judges all the way down to lawyers. My first Third Circuit conference I barely knew anyone, and the last one I had joined the Third Circuit Bar Association and knew lots of folks, and both times it was terrific.

And the CLE programming is first-rate and worth attending for all by itself. A few highlights of this year’s program include:

  • Judicial Independence and the Rule of Law, including Judge Scirica;
  • The Crisis of Wellness in the Legal Profession, including Judge Krause;
  • Rules: What’s on the Horizon, including Judges Ambro, Chagares, and Jordan; and
  • Media and Judicial Independence, including Judge Bibas along with Tom Goldstein, Linda Greenhouse, and Eugene Volokh.

Discounted early registration is $450 through February. On March 1 it goes up to $500, and after April 28 its $550.

So, tarry not! Register now, and we’ll see you in May.

New opinion: Third Circuit orders habeas relief based on admission of co-defendant’s confession

Johnson v. Superintendent Fayette SCI—habeas corpus—reversal—Rendell

The Third Circuit granted habeas relief today. How they got there takes a little explaining. Two men, Wright and Johnson, were tried together for a murder. Before the trial, Wright confessed to police and said Johnson was the shooter. If Wright were tried on his own, his own prior statement would have been admissible; if Johnson (the other guy) had been tried on his own, it would have inadmissible. So, at a joint trial, is it admissible?

Decades ago, courts would admit the “my co-defendant did it” statement at the joint trial and just instruct the jury to to consider it only against the defendant who said it, not the other guy, even though everyone knew full well that jurors would no such thing. In Bruton v. United States, the Supreme Court held that this practice violates’ other guys’ Sixth Amendment Confrontation Clause rights, because jurors aren’t robots. (Alas, the presumption that jurors follow their instructions remains alive and well in most other contexts to this day, with most courts impressively incurious about whether it’s grounded in reality.)

After Bruton, prosecutors adopted what some viewed as a cynical dodge: they’d introduce the statement but just change “my co-defendant did it” to “[the other guy] did it.” This “other guy” was never identified to the jury, so all but the dimmest jurors figured out that the “[other guy]” in the statement was the other guy being tried.

And that’s just what happened in this case. Wright’s confession came in, with “Johnson” changed to “the other guy” and the jury instructed not to consider Wright’s statement when deciding whether Johnson was guilty.  Except here it was even worse, because at the end of the trial both the prosecutor and Wright’s lawyer accidentally (or “accidentally,” for the cynics among you) revealed that Wright’s other guy was indeed Johnson. In 2012 the Pennsylvania courts denied relief, reasoning that the “other guy” plus the jury instruction was good enough. In federal habeas, the district court ruled that the state-court ruling was an unreasonable application of Bruton, but denied relief because it viewed the violation as harmless.

The Third Circuit reversed. It agreed that this was a clear Bruton violation and that the Pennsylvania ruling to the contrary was unreasonable. The bulk of the opinion focused on closely reviewing the overall evidence of Johnson’s guilt, concluding it was not overwhelming, and holding that under the Brecht standard the Bruton error was not harmless. The opinion began, “Although we generally rely on jurors to follow a court’s instructions, we cannot expect the superhuman from them.”

Joining Rendell were Krause and Matey. Arguing counsel were Craig Cooley of the Cooley Law Office for Johnson and Jennifer Andress of the Philadelphia D.A.’s office for the Commonwealth.

New opinions: Third Circuit rules for Philadelphia in major wage-gap fight

Greater Phila. Chamber of Commerce v. City of Phila.—civil/ constitutional—partial reversal—McKee

In an effort to reduce the persistent and substantial gap between what white men earn and what women and minorities earn, Philadelphia unanimously passed an ordinance in 2017 that bars employers in the city from asking about or relying on a prospective employee’s wage history.  Philadelphia was the first city in the country to enact such an ordinance, and since it did so more than a dozen states and municipalities did the same. The ordinance was opposed by various businesses in the city including Comcast, and the city chamber of commerce sued to enjoin enforcement of the ordinance. The district court enjoined the part of the ordinance that bars employers from asking about wage history as a commercial-speech violation, but denied the injunction as to the part that bars them from relying on wage history during hiring and salary negotiations.

Today, the Third Circuit ruled for the city across the board. It affirmed the district court’s ruling as to the reliance provision, observing that the chamber “does not present any arguments before us that seriously challenge” it. The court reversed the district court’s ruling against the city on the inquiry provision, upholding it under intermediate scrutiny because the city has a substantial interest in closing the wage gap and barring wage-history inquiry directly advances that interest.

This is a major victory for the city, which has an impressive recent track record in the circuit with big wins in the sanctuary-city case, the Fulton foster-program non-discrimination case, and today’s case in the past year. But it goes without saying that the city isn’t out of the woods yet in this one.

Joining McKee were Roth and Fuentes. Arguing counsel were city solicitor Marcel Pratt for the city and Miguel Estrada of Gibson Dunn for the city chamber of commerce. The case also featured substantial amicus participation on both sides.


U.S. v. Apple MacPro Computer—civil—reversal—Fuentes

The Third Circuit today ordered the release of a man named Rawls who’s been locked up for civil contempt for more than four years for not providing passwords for his computer to federal agents investigating him for child pornography possession. A federal statute,  18 U.S.C. § 1826(a), provides that witnesses held in contempt for refusing to comply may be confined for at most 18 months, and the court today held that “witnesses” includes suspects from whom the government demands passwords.

Judge McKee concurred to criticize the government’s apparent “insisting that Rawls’ incarceration for contempt be continued even though it already possesses sufficient evidence of Rawls’ possession and production of child pornography to obtain a conviction.” He expressed his hope that, if Rawls is criminally convicted, that the sentencing judge will take his lengthy civil-contempt incarceration into account when deciding his sentence.

Judge Roth dissented, arguing that the pre-indictment federal criminal investigation here does not fall within § 1826(a)’s scope because it is not a “proceeding before or ancillary to any court or grand jury of the United States.”

Arguing counsel were Keith Donoghue of the EDPA federal defenders for the confined man and Robert Zauzmer of the EDPA U.S. Attorney’s office for the government.

New opinion—Third Circuit rejects challenges to conviction for possessing prison contraband

U.S. v. Hendrickson—criminal—affirmance—Shwartz

A Virgin Islands man being held in a territorial facility on territorial charges was found in possession of a cell phone without a SIM card, which he told guards he was using to play music. He was charged with and convicted of the federal crime of possessing prison contraband. On appeal, he challenged his conviction on two grounds.

First, he argued that the SIM-cardless phone wasn’t contraband: it wasn’t “a phone … used by a user of commercial mobile service … in connection with such service.” The Third Circuit rejected this argument, interpreting the statutory phrase to mean “a phone generally used by users,” not “a phone that has been used by a user” (my words, not the court’s).

Second, he argued that he wasn’t subject to federal prosecution because he was being held in a territorial facility on territorial charges, not on federal charges. The court rejected this argument too, holding that the prison-contraband-possession statute applied to persons being held, whether on federal charges or not, at a facility where federal prisoners were being held. Since the facility here also held federal prisoners, the court affirmed.

Joining Shwartz were Smith and McKee. The appeal was decided without oral argument.

New opinion

U.S. v. Fishoff—criminal—affirmance—Roth

The pithy introduction:

Under Section 32 of the Securities Exchange Act, a defendant who violates a Security and Exchange Commission (SEC) rule or regulation but proves that he “had no knowledge of such rule or regulation” is not subject to imprisonment. The rule is intended to protect laypersons who commit technical violations. This case requires us to determine the precise burden on a defendant who wishes to use the so-called “non-imprisonment defense.” We hold that a defendant can establish lack of knowledge and avoid imprisonment if he demonstrates, by a preponderance of the evidence, that he did not know the substance of the rule or regulation that he violated. Because appellant Steven Fishoff did not establish a lack of knowledge of the rule that he pled guilty to violating and because his other procedural arguments fail, we will affirm the judgment of the District Court.

Joining Roth were McKee and Rendell. The case was decided without oral argument.

New opinion: Third Circuit holds that categorical approach can’t look beyond the most similar federal analog

Rosa v. A.G.—immigration—reversal—Fuentes

Today the Third Circuit ” address[ed] an issue of first impression under the Immigration and Nationality Act … that carries implications beyond immigration law: whether the categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, permits comparison with any federal crime, or only the ‘most similar’ one.” The Board of Immigration Appeals compared elements to multiple crimes. Specifically, the BIA applied the categorical approach by comparing the elements of man’s state convictions for drug distribution near a school not only to the federal distribution-near-a-school statute, but also to the statute criminalizing distribution generally. Today, the Third Circuit held that this was error because the categorical approach is limited to the most similar federal analog, granted the petition for review, and remanded.

Joining Fuentes were McKee and Shwartz. Arguing counsel were Derek Decosmo of DeCosmo & Rolon for the petitioner, Matthew George of the DOJ for the government, and Eric Mark of Newark for AILA as amicus.

The Third Circuit has begun appendix-hyperlinking pilot project, and it might apply to your case without you realizing it

The Third Circuit has begun a pilot project testing software that converts appendix citations in parties’ briefs into hyperlinks. This innovation, pioneered in the Fifth Circuit I believe, makes it wonderfully convenient for judges and clerks to check cites to the record, and with little-to-no added burden to the parties, so I’m hoping the testing is successful and appendix hyperlinking becomes standard.

For cases chosen by the court for inclusion in the pilot program, here’s how it works. Parties/counsel don’t create their own hyperlinks. Instead, they use a consistent format for cites to the appellate appendix: Appx__, with the page number in the blank. And they use the same format for the appendix page numbers themselves. Then, when the briefs are filed, the clerk’s office uses software that converts the appendix cites into hyperlinks. The clerk’s office then circulates the hyperlinked version within the court. (All of this is explained in a helpful 15-page manual that the court sends out attached to the notice of inclusion. The manual doesn’t appear to be on the court’s website yet.)

All litigants have to do is remember to use the court’s prescribed format for the cites and the pages. They may even save words on their word limit, since the court’s format results in appendix cites that count as one word, unlike the cite formats many lawyers use, like “JA 28.”

The only part that should be a challenge for any lawyers is that the appendix page numbers have to be applied by your pdf software. (Adobe Acrobat, Foxit Phantom, etc.). You can’t paginate your appendix by hand and then scan it. (Honestly, weeding out anyone still doing that may be a bonus.)

But, to be clear, this is still only a pilot program, it is not (yet) a requirement for all cases. I see no reason not to use the new format in all of your Third Circuit briefs, and I plan to do exactly that, but you don’t have to unless your case has been designated by the court for inclusion.

Which brings me to my last point: that designation happens at the beginning of the case, amidst other standard beginning-of-the-case paperwork. It is a separate ECF entry. The first page is titled, “Notice to counsel, pilot project for appendix citation hyperlinking.” So be careful not to overlook it. And be especially careful not to overlook it if you were not the lawyer originally appointed by the court. The court does not re-enter the pilot-project notice each time substitute counsel appear. (I humbly suggest that it should.) So all counsel should be careful to review the case-opening docket entries to determine whether the appeal has been chosen for inclusion.

Traps for the unwary aside, this is a positive step and I applaud the court for moving forward with it.

Two new opinions, one of them permitting collateral attacks on un-appealed removal orders

U.S. v. Dohou—criminal / immigration—reversal—Bibas

When an immigration judge ordered the removal of a man from Benin who’d been convicted of conspiring to sell marijuana, the man did not appeal the removal order. When the man then allegedly resisted efforts to put him on a plane, he was indicted the crime for hindering his removal. The man sought dismissal of the hindering charge on the ground that his lawyer at the underlying removal proceeding had been ineffective.

The district court held that it lacked jurisdiction over a collateral attack on the removal order, but today the Third Circuit reversed based on the text of the relevant jurisdiction statute, which authorizes review of prior removal orders that have “not been judicially decided.” He didn’t appeal the removal order, so no Article III judge considered it, so it was never judicially decided. On the merits, the court remanded the man’s ineffective-assistance-of-counsel claim for fact finding.

Joining Bibas were Ambro and Krause. Arguing counsel were former Fisher clerk Quin Sorenson of the MDPA federal defender for the man and Michelle Olshefski of the MDPA U.S. Attorney’s office for the governemnt.


U.S. v. Johnman, Jr.—criminal—affirmance—Matey

A statute requires persons “convicted of an offense” under specified laws to pay a special assessment. If a person is convicted of more than one offense, does the statute require more than one special assessment? Today, the Third Circuit answered that question in the affirmative, relying on a lengthy analysis of the text and courts’ pre-enactment interpretation of the same language in a different statute. The court rejected the defendant’s argument that the rule of lenity was triggered by inconsistent lower-court interpretations.

Joining Matey were Krause and Rendell. Arguing counsel were Alison Brill of the DNJ federal defender for the defendant and Robert Zauzmer of the EDPA U.S. Attorney’s office for the government.

New opinion: Third Circuit applies VAWA to block woman’s deportation

Da Silva v. A.G.—immigration—reversal—Roth

A woman from Brazil came to the U.S. in 1994, overstayed her visa, and later married an American man. Her husband was physically and emotionally abusive, refused to file for legal status “as a method to control her,” and cheated on her repeatedly. When she discovered one of his affairs, she confronted the woman and punched her twice in the nose. For this, she was prosecuted for assault in federal court and sentenced to 18 months in prison, and then the government began proceedings to deport her.

Under the Violence Against Women Act, petitioners can seek cancellation of removal under certain circumstances after an act or conviction “connected to” the petitioner’s abuse. The Board of Immigration Appeals reasoned (if that’s the word) that the nose-punching was not connected to the woman’s abuse because her abuser didn’t ask or force her to do it.

Today, the Third Circuit vacated and remanded, holding that the woman’s crime met VAWA’s “connected to” test because it had a causal or logical relationship to the abuse she suffered. The court also rejected the government’s request that the court instead remand to the BIA to give it a do-over on interpreting the connected-to standard. The opinion is a model of readable, unflashy judicial style.

Joining Roth were McKee and Rendell. Arguing counsel were Thomas Griffin of Surin & Griffin for the woman and Scott Stewart of the DOJ for the government.

Two new opinions

U.S. v. James—criminal—affirmance—Shwartz

Wayne James—whose Twitter bio describes him as “Lawyer, fashion designer, former senator, author of Manly Manners trilogy,” and here my friends is volume I—was a one-term senator in the Virgin Islands Legislature. He was later convicted of wire fraud and embezzlement for submitting false expense invoices to the legislature and using most of the proceeds for personal benefit. It seems he wanted some historical records about a nineteenth century labor riot in order to make a movie about it, and the false invoices were connected to that, I think. It’s confusing.

Anyhow, on appeal the erstwhile senator (etc.) challenged his convictions on four grounds:  (1) admission of evidence of acts falling outside the statute of limitations, (2) prosecutorial misconduct for introducing precluded evidence, (3) use of an evidence-summarizing demonstrative chart, and (4) seating an alternate after removal of a juror. The court rejected all four and affirmed.

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


Cirko v. Commissioner of Social Security—civil—affirmance—Krause

Claimants for Social Security disability benefits are not required to exhaust constitutional challenges to the appointments of the administrative law judges who denied their claims. That is, such claimants may raise Appointments Clause challenges in federal court even if they did not present them to the agency first.

Joining Krause were Ambro and Bibas. Arguing counsel were Joshua Salzman of the DOJ for the government and Thomas Sutton of Leventhal Sutton for the claimants.

In dramatic Third Circuit argument, prosecutor concedes relief in death penalty case

A helpful reader alerted me to a remarkable Third Circuit oral argument held last week. Or, rather, not held.

The appeal involved a capital habeas case where the district court granted relief based on trial counsel’s ineffective assistance for failing to object to an erroneous reasonable-doubt instruction. (The case is Fisher v. Secretary, 18-9005. Links to the district court opinion here and order here.) The Commonwealth appealed the district court’s ruling to the Third Circuit, the appeal was briefed, and the panel—Judges Restrepo, Bibas, and Porter—granted oral argument. Counsel for the Commonwealth was Montgomery County, Pa., Deputy D.A. Robert Falin.

At the outset of the argument, Judge Restrepo asked (all the quotes here are my transcription from the audio), “Sir, my understanding is you wanted to tell us something?” Prosecutor Falin responded:

I no longer believe that the lower court committed error. I spent the past few days working on the case, reading the briefs, doing research, and as the hours passed the less and less comfortable I became with our position. And it dawned on me that if I, as a career prosecutor, was not feeling good about these arguments, then perhaps it was not appropriate to come and stand before the Court and argue and advocate for them. So I am conceding that, I now believe there was no error below.

After some clarifying questions from the panel, during which Falin at one point apologized for the time the judges had spent preparing for the argument, there was a pause (I envision the judges exchanging wide-eyed glances here), and then Judge Restrepo said, to general laughter, “We’ll be back in two minutes!”

After a pause, the court reconvened. Opposing counsel, Stu Lev of the Federal Community Defender Capital Habeas Unit, thanked the prosecutor for his honesty and integrity, then Judge Restrepo thanked Falin and his office. Judge Restrepo continued:

And please, there’s absolutely no reason to apologize. I thank you for your candor. It’s really in the best tradition of a prosecutor, recognizing that a mistake has been made and moving forward.

Judge Bibas agreed, speaking with feeling:

I think it’s in Berger v. United States, [295 US 78, 88 (1935)], the Supreme Court talked about the prosecutor’s obligation not to be winning cases but to see that justice is done. It’s not easy to come in and confess error. But we don’t reject wisdom when it comes late. And we thank you very much for your candor in bringing this to us.

After Judge Porter agreed with his colleagues, it was over, less then five-and-a-half minutes start to finish.

Dramatic moments in appellate oral arguments are few and far between, by design. This was extraordinary.

New opinion—Third Circuit clarifies which dismissals trigger claim preclusion

Papera v. Pa. Quarried Bluestone Co.—civil—reversal—Bibas

When the plaintiffs in a civil dispute thought they’d agreed to a settlement with the defendants, they moved to dismiss their suit, which the district court granted. It gave them 60 days to either submit the settlement agreement for its approval or reopen the case and, when neither occurred, the court administratively closed the case. But the settlement fell through and, after the 60-day deadline, the plaintiffs refiled the suit. The district court granted summary judgment for the defendants based on claim preclusion.

Today, the Third Circuit vacated and remanded. The dismissal of the original suit was without prejudice because it was voluntary and it did not explicitly and unambiguously say it was with prejudice, FRCivP 41a. And dismissals without prejudice don’t trigger claim preclusion. The court adopted two clear-statement rules:

For purposes of claim preclusion, we will construe unclear dismissal orders as voluntary rather than involuntary. And we will construe unclear first voluntary dismissals as without prejudice, so they will not preclude relitigating the same claims. Only a clear and explicit statement will suffice to make a dismissal involuntary, or voluntary with prejudice.

Joining Bibas were Hardiman and Greenaway, Jr. The case was decided without oral argument.

Recent Third Circuit clerk [make that clerks] running for Congress

Two years ago, Tom Brier was a Third Circuit law clerk. Today, he’s running for a seat in Congress.

Back in 2017, Penn State news ran a profile of Brier in which he gushed about having butterflies looking forward to his clerkship for Judge Thomas Vanaskie. I blogged about it here, calling the profile “surely the least cynical thing you will read all day.”

Yesterday, Charles Thompson of PennLive profiled Brier, now 27, as he mounts a campaign for Congress. He’s running as a progressive Democrat for a seat currently held by Republican Scott Perry. (According to the article, pundits expect Pa. state Auditor General Eugene DePasquale to win the Democratic nomination.) If elected, Brier would reportedly be the youngest member of Congress.

I’m only aware of one Third Circuit clerkship alum currently in Congress—Delaware Senator Chris Coons, who clerked for Judge Roth. [Update: also Utah Senator Mike Lee clerked for then-CA3-Judge Alito.]  Former Becker clerk Zephyr Teachout, whom I posted about here when she ran for New York governor, ran unsuccessfully for Congress is 2016.

Brier clerked for Judge Vanaskie from 2017 to 2018, meaning his clerkship ended a few months before Vanaskie took senior status and then retired. After his clerkship, Brier joined Blank Rome in Philadelphia, when he decided to run for office to do something to help people. “So I sublet my apartment (in Philly), I moved all my stuff out, got an apartment here in Hershey, and moved back home,” he told PennLive.

Although he’s the underdog, Brier’s campaign has impressed local politicos, according to the article, and he has already raised over $200,000.

Brier told PennLive, “It’s a one-in-a-lifetime opportunity to come back to my hometown and run in the most important district in the most important state in the most important election of our entire lifetimes.”

UPDATE: After I tweeted this post, Fordham law professor John Collins pointed out that a second recent Third Circuit clerk also is running for Congress. Jerry Dickinson, a law professor at the University of Pittsburgh who clerked for Judge McKee in 2015–16, is running for Congress in Pittsburgh. He’s a progressive Democrat challenging incumbent Dem Michael Doyle, and he’s already raised almost $200,000. A nice profile is here.

[Disclosure: I made a modest contribution to both campaigns after posting this.]

Divided Third Circuit rejects Second Amendment challenge to gun-possession law by person convicted of driving drunk

Holloway v. Attorney General—civil / Second Amendment—reversal—Shwartz

The federal statute that makes gun possession a crime for persons convicted of crimes punishable by imprisonment for more than a year is not unconstitutional as applied to a defendant convicted of driving under the influence of alcohol, the Third Circuit held today. Under the Third Circuit’s fractured 2016 en banc ruling in Binderup, criminalizing gun possession by persons convicted of crimes does not violate the Second Amendment if the prior conviction is for a “serious crime.” The court held that DUI qualifies as a serious crime, looking to definitions, precedent, and the severity of the maximum sentence.

Judge Fisher dissented, arguing that the prior conviction was not for a serious crime because it was classified as a misdemeanor, did not involve use of force, and resulted in a short actual sentence.

Both opinions brim with formalist reasoning generally, and specifically with analysis of how to determine what aspects of the various Binderup opinions are controlling precedent. Binderup itself endeavored to identify what was binding on future panels, and—perhaps inevitably—the majority and the dissent here disagree about whether that was controlling, too. It’s a fascinating, baroque mess.

Joining Shwartz was Fuentes, with Fisher dissenting. Arguing counsel were Thais-Lyn Trayer for the government and Joshua Prince of Prince Law Offices for the challenger.


U.S. v. Hodge, Jr.—criminal—affirmance—Smith

The First Step Act reduces mandatory-minimum criminal sentences for certain gun-crime defendants, and it applies to prior-convicted defendants “if a sentence for the offense has not been imposed” as of the date the Act became law. Here, the defendant was convicted and sentenced, then the Third Circuit vacated his sentence and remanded for resentencing, then the First Step Act took effect, before the resentencing occurred. The district court ruled that the Act didn’t apply to the defendant, and today the Third Circuit affirmed in an elegantly concise opinion.

Joining Smith were McKee and Shwartz. Arguing counsel were Jennifer Blecher of the D.V.I. U.S. Attorney’s office for the government and Gabriel Vellagas of the D.V.I. defenders for the defendant.

New opinion: removal to federal court doesn’t establish remover’s consent to jurisdiction

Danziger v. Verkamp—civil—affirmance—Bibas

Here’s the introduction of today’s Third Circuit opinion affirming dismissal for lack of personal jurisdiction:

Removal to federal court changes the field of play, but not the game being played. Two law firms, Danziger and Morgan Verkamp, spent almost a year and a half in Pennsylvania state court disputing and ultimately taking discovery over a referral fee before any complaint was filed. After Morgan Verkamp removed the case to federal court, it successfully challenged personal jurisdiction. Danziger now argues that either there is specific personal jurisdiction over Morgan Verkamp in Pennsylvania or that Morgan Verkamp waived that objection. Not so.

There is no specific jurisdiction because Danziger’s claims neither arise out of nor relate to Morgan Verkamp’s activities in Pennsylvania. Nor did Morgan Verkamp consent to personal jurisdiction by merely taking part in pre-complaint discovery, because Pennsylvania law does not let defendants object to jurisdiction until the plaintiff files a complaint. And as we clarify today, a defendant who chooses to remove to federal court does not thus consent to personal jurisdiction; the defendant carries the defenses it had in state court with it to federal court.

Plus, the District Court need not find Danziger a new playing field. When the parties suggest transferring a case with a jurisdictional defect, a district court should ordinarily balance the equities of doing so before deciding to dismiss the case with prejudice. But at oral argument, Danziger conceded that it does not need the District Court to transfer its case; it could timely refile its claims in another forum. So we need not remand to let the District Court consider transferring this case, but will instead affirm.

Joining Bibas were Ambro and Krause. Arguing counsel were Gavin Lentz of Bochetto & Lentz for the appellant and Tejinder Singh of Goldstein & Russell for the appellees.

Also today, the court issued an amended panel opinion in Thomas v. Deputy Superintendent, a split-panel prisoner-rights appeal involving so-called dry-celling. The new opinion is here; my summary of the prior opinion is here. As best I can tell, the changes are not substantive and the outcome remains the same. The court denied Thomas’s petition for rehearing en banc, with Judges McKee, Greenaway Jr. (the panel dissenter), and Restrepo dissenting.

Two new opinions, each involving a circuit split

U.S. v. Tyson—criminal—affirmance—Restrepo

Knowledge of the victim’s age is neither an element of, nor an affirmative defense to, the crimes of transporting a minor to engage in prostitution or producing child pornography, the Third Circuit held today. Thus it ruled that the district court did not err in applying Rule 403 of the federal evidentiary rules to bar the defendant from presenting a mistake-of-age defense. The court split with the Ninth Circuit on one of the points, whether mistake of age is an affirmative defense to producing child pornography.

Joining Restrepo were Chagares and Jordan. Arguing counsel were John Abom of Abom & Kutulakis for the defendant and Francis Sempa for the government.


Laurel Gardens, LLC v. McKenna—civil—partial reversal—Cowen

The Third Circuit held that the district court erred when it rejected the plaintiff’s argument that it had personal jurisdiction over certain defendants under RICO’s nationwide-jurisdiction provision, 18 USC § 1965(b). The appeal arose from a civil RICO suit involving landscaping and snow-removal businesses. The court joined the majority in a 5-2 circuit split on the question of which statutory personal-jurisdiction provision applied in civil RICO suits brought in a district with jurisdiction over at least one defendant.

Joining Cowen were Greenaway, Jr., and Porter. The case was decided without oral argument.

New opinion: Third Circuit rejects First Amendment challenge to orders barring disclosure of subscriber-data subpoenas

In the Matter of the Application of Subpoena 2018R00776—First Amendment—affirmance—Roth

On Friday, the Third Circuit held that an order barring a service provider from disclosing to anyone that it had turned over subscriber data stored on the cloud to a grand jury did not violate the First Amendment. The government’s interest in maintaining grand jury secrecy was sufficient to uphold the non-disclosure orders, even though they amounted to prior restraint subject to strict scrutiny. The subpoenas and non-disclosure orders were pursuant to the Stored Communications Act. The service provider had sought to disclose to a third party, the subscriber’s bankruptcy trustee, and argued that such disclosure posed no risk to the grand jury’s investigation, but the court concluded that “[d]isclosure to anyone outside of the grand jury process would undermine the proper functioning of our criminal justice system.”

Roth was joined by Restrepo and Fisher. The opinion did not identify the parties’ counsel.

Third Circuit task force issues major report on eyewitness identifications

The Third Circuit Task Force on Eyewitness Identifications, formed in 2016 to study and address the problem of mistaken witness IDs leading to wrongful convictions, has issued its report. The full report is published in the Temple Law Review and is available online at this link. It’s a tremendously impressive effort and I expect it to have a real impact, here in the Third Circuit and nationally.

The task force was co-chaired by Judge McKee and EDPA Judge Mitchell Goldberg. Task force members included Chief Judge Smith, Judges Shwartz and Restrepo; district judges from across the circuit; and a broad range of academics, defenders, and prosecutors and law enforcement—20 in all.

The report draws on a deep body of scientific research on different factors leading to mistaken identifications and procedures to reduce them, and to reduce wrongful convictions resulting from them. It presents concrete recommendations regarding law enforcement best practices on matters such as how to interview eyewitness and elicit identifications.

Two committee members (a then-federal prosecutor and an FBI agent) disagreed with many of the committee’s conclusions and recommendations, and the report included their positions throughout and a separate statement. Two other members (Judge McKee and a law professor) proposed changes to the circuit’s jury instructions.

The report’s conclusion states:

The Third Circuit Task Force on Eyewitness Identification was the first such project undertaken by a federal court on the issue of eyewitness identification, but the national effort to deter the use of suggestive practices that result in wrongful convictions of innocent people has long preceded the Task Force’s work. A substantial body of scientific research has identified factors that contribute to wrongful convictions, and the corresponding best practices have robust, nationwide support. The Task Force is proud to contribute to this vital endeavor.

The task force report is engaging, thoughtful, and important, and I hope it gets the serious attention it deserves.

Divided Third Circuit panel reverses application of sentencing enhancement for physical restraint

US v. Bell—criminal sentencing—partial reversal—Greenaway, Jr.

The Sentencing Guidelines provide for a two-level enhancement if a robbery defendant “physically restrained” someone to facilitate the crime or escape. In this case, the defendant “physically confronted a store employee, by grabbing the employee’s neck, pointing [a fake gun] at his neck, and throwing the employee to the ground,” and, when the employee fought back, the defendant hit him with the fake gun and broke it. The district court imposed the enhancement for physical restraint, ultimately sentencing the man to over seven years in prison.

Today, the Third Circuit reversed, holding that applying the physical-restraint enhancement on these facts was error. The court (1) held that its review standard was de novo, (2) set out five factors courts deciding whether to apply the enhancement must balance, and (3) held that, balancing those five factors, imposing the enhancement was error. “If we apply the enhancement here,” the majority explained, “then any crime that involves a chance encounter with a victim with any physical dimension would require application of the enhancement.”

Judge Chagares dissented, arguing that the court’s review should be for clear error and that application of the enhancement wasn’t clearly erroneous because using force to try to confine the employee to the floor constituted physical restraint.

The defendant also challenged another enhancement, for “otherwise us[ing]” a dangerous weapon, but all three panel members agree that his challenge was foreclosed by prior precedent.

Joining Greenaway, Jr. were Ambro in full and Chagares in part; Chagares dissented in part. Arguing counsel were George Newman of Philadelphia for the defendant and Bernadette McKeon of the EDPA US Attorney’s office for the government.

[UPDATE: the court issued a revised opinion, now linked at the top of this post, “to correct a mis-numbering of the sections.” The old one is here.]

Third Circuit begins numbering its docket entries

The Third Circuit announced that, effective January 1, its new docket entries will be consecutively numbered.

Until now, entries on the docket were dated but not numbered, unlike docket entries in district courts. Adding numbers makes it a bit easier and more foolproof to cite, refer to, and store Third Circuit case documents.

(For pending cases, the old entries won’t be numbered retroactively, but new entries will be numbered as if they were.)

The notice posted on the court’s website stated, “We believe that the introduction of docket entry numbers will add clarity to the Court’s dockets and will benefit the public, litigants, and practitioners,” and I agree.


Catching up on the Third Circuit’s holiday-week opinion excitement

After issuing two opinions on Christmas Eve, which I confess to writing up a bit quickly amidst pre-holiday scrambling, the Third Circuit issued four more opinions the week between Christmas and New Years. One of them, Orie, was issued on panel rehearing from an opinion highlighted here.

Monongahela Valley Hospital v. United Steel Paper & Forestry Union — arbitration — affirmance — Ambro  [December 30]

“We have the rare situation where not even our heavy degree of deference to arbitrators can save an arbitration decision and award,” begins this opinion affirming the district court’s ruling that vacated an arbitrator’s decision in favor of a union in a dispute over vacation requests with a hospital employer. The arbitrator “dispens[ed] his own brand of industrial justice” by ignoring the plain language of the contract that gave the hospital “final” and “exclusive[]” authority to decide the disputes at issue, the Third Circuit held, observing, “we are not an amen corner for arbitrators’ rulings.”

Joining Ambro were Krause and Bibas. Arguing counsel were Anthony Resnick for the union and Hayes Stover of K&L Gates for the hospital.


Orie v. District Attorney—habeas corpus—affirmance—Jordan [December 30]

On panel rehearing, the Third Circuit again affirmed the denial of habeas corpus relief to the sister of, and former chambers secretary for, a Pennsylvania judge, but it removed a passage from its original opinion that the petitioner had argued conflicted with Supreme Court law.

The Third Circuit issued its original opinion in November. It contained a paragraph holding that the habeas statute bars federal courts from granting relief under Rule 60(b) of the Federal Rules of Civil Procedure when, due to counsel’s error, the petitioner files objections to a magistrate judge’s report and recommendation late. When the opinion issued, I wrote here that I believed the opinion was incorrect and that rehearing was warranted because the Supreme Court had earlier rejected the same reasoning, and the petitioner sought rehearing on that basis.

Granting panel rehearing, the court deleted the paragraph from its new opinion, but it affirmed again for the reasons given in the remainder of the original opinion.

Once again, joining Jordan were Bibas and Matey. Arguing counsel were James DePasqulale of Pittsburgh for the petitioner and Ronald Wabby of the Allegheny County D.A.’s office for the Commonwealth.


Espichan v. Attorney General—immigration—reversal—Ambro [December 27]

Whether a Peruvian immigrant could be deported after being convicted of a crime hinged, by statute, on whether his parents had a “legal separation.” That question in turn hinged on whether they had been married under Peruvian law, which recognizes de facto marriage. The BIA ruled for the government based on evidence that the father hadn’t held himself out as married, but the the Third Circuit granted the petition for review and transferred the case to a district court to decide, as a factual matter, whether the government could prove that the parents weren’t married. The court held that the summary judgment standard applied and that the government bore the burden as the moving party. If the parents were married, then there was no material dispute that they had legally separated, the court held. The panel retained jurisdiction over any subsequent appeal.

Joining Ambro were McKee and Roth. Arguing counsel were Kristina Ivtindzioski of New Jersey for the immigrant and Arthur Rabin of the Department of Justice for the government.


Coral Harbor Rehabilitation v. NLRB—labor—affirmance—McKee [December 26]

An entity purchased a nursing home where some of the nurses were unionized, but it changed their terms of employment unilaterally, without bargaining with the union, on the theory that it had converted the unionized nurses into supervisors and thus removed them from the National Labor Relations Act’s protection. The Third Circuit upheld the NLRB’s ruling for the nurses, holding that the record supported its conclusion that the nurses weren’t supervisors because they lacked the requisite independent judgment.

Joining McKee were Porter and Roth. The appeal was decided without oral argument.

Two new opinions

Ferreras v. American Airlines—class action—reversal—Jordan

This case involves claims for overtime wages brought by employees of American Airlines, Inc. (“American”). The employees allege that American violated the New Jersey Wage and Hour Law (“NJWHL”) because the airline’s timekeeping system defaults to paying employees based on their work schedules, even if they work additional hours outside of their shifts and in excess of 40 hours per week.

The employees brought their claims as a putative class action and moved for class certification. The District Court decided that all of the requirements for class certification, as set forth in Federal Rule of Civil Procedure 23, were met, and it thus certified the class. American appeals that order, arguing that the District Court did not conduct a rigorous analysis and that several of the requirements of Rule 23, including commonality and predominance, were not met. American argues that this case cannot proceed as a class action because determining when each employee was actually working will necessarily require individualized inquiries. We agree and will therefore reverse the order of the District Court.

Joining Jordan were Chagares and Restrepo.


Wells Fargo v. Bear Stearns—bankruptcy—affirmance—Smith

In conclusion, we hold that (1) a Bankruptcy Court’s determination of good faith regarding an obligatory postdefault valuation of collateral subject to a repurchase agreement receives mixed review. Factual findings are reviewed for clear-error while the ultimate issue of good faith receives plenary review; (2) 11 U.S.C. § 101(47)(A)(v) “damages,” which may trigger the requirements of § 562, require a non-breaching party to bring a legal claim for damages; (3) the safe harbor protections of 11 U.S.C. § 559 can apply to a non-breaching party that has no excess proceeds; and (4) Bear Stearns liquidated the securities at issue in good faith compliance with the GMRA. Thus, we will affirm the judgment.

Joining Smith were McKee and Phipps, in what I believe is the first precedential panel opinion with Judge Phipps on the panel.

New opinion: Third Circuit issues a revised panel opinion in doctor-referral appeal

USA ex rel. Bookwalter v. UPMC—civil / qui tam—reversal—Bibas (on panel rehearing)

The Third Circuit today issued a new panel opinion in an appeal involving an important challenge to physician referral practices.

This past September, the panel reversed the district court’s dismissal of the suit, with Judge Ambro concurring in the judgment and disagreeing with the panel majority about how to construe the Stark Act’s scope. The heart of Judge Ambro’s concern was that the majority interpreted Stark Act liability too broadly beyond its core concern about doctors referring patients to providers in which the doctors have a financial interest when it held that the relators met their burden by pleading that the doctors’ compensation correlated with their referrals. He “worr[ied] we are sending signals to hospitals throughout the Third Circuit, and the nation, that their routine business practices are somehow shady or suspicious and could leave them vulnerable to significant litigation.”

Today, the court announced that it granted panel rehearing in part while denying rehearing en banc, and it issued a new panel opinion (linked at the top of this post). The order very helpfully identifies what changed:

The majority has made changes to the language that appeared at pages 3–4, 6, 11, 15, 27–30, 32–33, 35–37, and 39–40 of the original opinion. Most of the material that appeared at pages 18–25 of the original opinion has been deleted. Judge AMBRO’s opinion concurring in the judgment has been withdrawn.

I haven’t compared the old and new opinions line-by-line, but it appears to me that the core change is reflected in the change of this heading from the original opinion:

The surgeons’ compensation varies with, or takes into account, the volume and value of their referrals

to this in the new opinion:

The surgeons’ compensation took into account the volume and value of their referrals

(Fellow typography nerds will note that the new opinion also spruced up the opinion’s already impressive design in the table of contents.)

Joining Bibas were Ambro and Fuentes. Arguing counsel were Gregory Simpson of Georgia for the appellants and Jessica Ellsworth of Hogan Lovells for the appellees.

New opinion–Third Circuit upholds nonconsensual third-party bankruptcy release

In re: Millenium Lab Holdings II, LLC—bankruptcy—affirmance—Jordan

When a debtor files for bankruptcy under Chapter 11, the bankruptcy court has broad power to confirm a reorganization plan that resolves the debtor’s debts and other liabilities to its creditors. The key question in this appeal was whether the bankruptcy court has the power to force the resolution of related liability—not the debtor’s liability to its creditors, but other entities’ liability to those creditors. The Third Circuit held that bankruptcy courts do possess that power: “On the specific, exceptional facts of this case, we hold that the Bankruptcy Court was permitted to confirm the plan because the existence of the releases and injunctions was integral to the restructuring of the debtor-creditor relationship.”

The facts here are complicated, but to simplify things a bit, the debtor was a corporation with shareholders. The debtor negotiated a bankruptcy settlement with some of its creditors that released its own liability as to all creditors. Nothing unusual there. But the deal also released the debtor’s shareholders’ liability to the creditors, including a creditor who didn’t consent to the deal. That is, the deal wiped out creditors’ claims against entities that weren’t bankruptcy debtors. The bankruptcy court confirmed the plan over the dissenting creditor’s objection, the district court affirmed, and yesterday the Third Circuit affirmed, too, holding that the release of non-debtor liabilities was constitutional in light of the Supreme Court’s 2011 decision in Stern v. Marshall. The court emphasized that it was not broadly sanctioning nonconsensual third-party releases in bankruptcy and that such releases must satisfy exacting standards and be approached by courts with “the utmost care.”

Joining Jordan were Chagares and Restrepo. Arguing counsel were Thomas Redburn Jr. of Lowenstein Sandler for the creditor and John O’Quinn of Kirkland & Ellis for the appellees.

New opinion–Third Circuit reverses summary judgment for GSK in Avandia dispute

In re: Avandia Marketing, Sales & Prods. Liab. Litig. (UFCW Local 1776)—civil—reversal—Restrepo

Here is the introduction of today’s opinion reversing summary judgment in favor of  pharmaceutical giant GlaxoSmithKline in one front of its running battle over liability for its diabetes drug Avandia:

Plaintiffs, two health benefit plans (“Plans”), appeal the District Court’s grant of summary judgment in favor of Defendant, GlaxoSmithKline LLC (“GSK”), the manufacturer of the prescription drug Avandia. The Plans brought suit against GSK under various state consumer-protection laws and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ch. 96 (“RICO”), based on, among other things, GSK’s marketing of Avandia. The District Court granted summary judgment in favor of GSK on the Plans’ claims, finding, in relevant part, that (i) the Plans’ state-law consumer-protection claims were preempted by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. ch. 9 (“FDCA”); (ii) the Plans had failed to identify a sufficient “enterprise” for purposes of RICO; and (iii) the Plans’ arguments related to GSK’s alleged attempts to market Avandia as providing cardiovascular “benefits” were “belated.” The Plans assert that the District Court erred in granting summary judgment, and we agree.

Applying the guidance recently provided by the Supreme Court in Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), we hold that the Plans’ state-law consumer-protection claims are not preempted by the FDCA. With respect to their RICO claims, the Plans should have been given the opportunity to seek discovery prior to the District Court’s granting summary judgment on such claims. Further, from the inception of this litigation, the Plans’ claims have centered on GSK’s marketing of Avandia as providing superior cardiovascular outcomes—in other words, cardiovascular benefits—as compared to other forms of treatment, and therefore, the District Court’s refusal to consider the Plans’ “benefits” arguments was in error because those arguments were timely raised. Therefore, for the reasons that follow, we will reverse in part and vacate in part the order of the District Court granting summary judgment in favor of GSK, and we will remand to the District Court for further proceedings consistent with this opinion.

Joining Restrepo were Smith and Ambro. Arguing counsel were Thomas Sobol of Massachusetts for the appellents and Jay Lefkowitz of Kirkland & Ellis for the appellee.

New opinion–Third Circuit vacates removal order and sharply criticizes BIA

Quinteros v. Attorney General—immigration—reversal—Roth

The Third Circuit today ruled in favor of an El Salvadoran man facing deportation, holding that the Board of Immigration Appeals (1) erred when it found that his prior conviction for conspiracy to commit assault was an aggravated felony, and (2) erred when it denied his challenge to removal under the Convention Against Torture.  On the CAT issue, the court ruled that the BIA erred in ignoring evidence that the petitioner’s tattoo would mark him as a gang member and result in his likely torture, and erred also in applying the wrong standard to decide whether Salvadoran officials acquiesce to the torture risk the petitioner faces.

In a concurring opinion joined by the rest of the panel, Judge McKee explained why “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as a neutral and fair tribunal as it is expected to be.” He added, “That criticism is harsh and I do not make it lightly.”

Joining Roth were McKee and Ambro; McKee concurred joined by Roth and Ambro. Arguing counsel were Damon Andrews of Kirkland & Ellis for the petitioner and Virginia Lum of the DOJ for the government.

New opinion—administrative-exhaustion tolling for prisoner suits still applies after prisoner’s release

Jones v. Unknown D.O.C. Bus Driver—prisoner rights—partial reversal—Bibas

Say you’re in prison, and you want to bring a civil rights suit against prison officials for something they did to you in custody. In Pennsylvania, the statute of limitations for bringing a civil rights suit is two years. But, because you’re a prisoner subject to the PLRA, you first have to exhaust administrative remedies before you’re allowed to file your suit, and the two-year clock is tolled while you’re exhausting.

Former prisoners are free to file civil rights suits for things done to them in prison, of course, and the same two-year time limit applies. But the PLRA’s administrative exhaustion requirement doesn’t apply to former prisoners.

So, imagine the following scenario. A prison guard mistreats you, and you immediately file a complaint to begin administratively exhausting. Six months later, before administrative exhaustion is complete, you are released. How long you have to file the suit? Was the two-year clock still tolled during the six months you spent administratively exhausting, even though now the exhaustion requirement doesn’t apply to you any more?

Today, the Third Circuit answered that question in the affirmative, holding that the time a former prisoner spent exhausting administrative remedies does not count toward the two-year limitation period. Otherwise, the court noted, prison officials could prevent former prisoners from ever suing them by drawing out the grievance process more than two years: “That cannot be so.”

Joining Bibas were Hardiman and Greenaway, Jr. Arguing counsel were Amir Ali of the MacArthur Justice Center for the prisoner and Anthony Kovalchick of the Pa. A.G.’s office for the prison officials.

New opinion on appeal waiver

In re: Odyssey Contracting Corp.—civil—affirmance—Ambro

[Disclosure: I assisted counsel for the appellant as a consultant prior to oral argument.]

The Third Circuit today held that a party waived its right to appeal a bankruptcy court ruling under the terms of a written stipulation it signed, even though the stipulation was silent as to the parties’ right to appeal. One side had argued that any appellate waiver had to be express, while the other side argued that, to the contrary, the intention not to waive the right to appeal had to be express. The court accepted the latter argument:

a party that agrees to resolve and end a case—and thus gives up its right to press its claims or defenses in exchange for finality—should not be left guessing whether the opposing party can appeal. Rather, the party seeking to appeal must make its intent to do so clear at the time of the stipulation.

Joining Ambro were Smith and McKee. Arguing counsel were Chris Georgoulis of New York for the appellant and Charles Fastenberg of Duane Morris for the appellees.

Two criminal-appeal opinions

U.S. v. Ludwikowski—criminal—affirmance—Fisher

A New Jersey pharmacist went to police to report that former customers were threatening to expose and to physically harm him after he stopped filling their oxycodone prescriptions. But when he did, police questioned him for several hours, without Miranda warnings, not just to gather evidence of the extortion but also to find out what he was afraid they would expose. They used his statements from that interrogation to prosecute him for drug distribution.

On appeal, he argued that his interrogation statements should have been excluded because his Miranda rights were violated. The Third Circuit disagreed, holding that no Miranda violation occurred because, on “only … the precise facts before us,” he was not in custody. The court also rejecting his other challenges based on the voluntariness of his statements and the admission of expert testimony about pharmacy practices. (The court cited an old Third Circuit case, Steigler v. Anderson, that I’d never seen before.)

Joining Fisher were Ambro and Restrepo. Arguing counsel were Lisa Mathewson for the defendant and Norman Gross for the government.


U.S. v. Tyrone Mitchell—criminal—partial reversal—Fuentes

The Third Circuit held today that the district court that sentenced a criminal defendant committed plain error when it relied on the man’s bare arrest record to determine his sentence. The court rejected seven other challenges to the convictions and the 85-year sentence this 50-year-old man received.

Joining Fuentes were McKee and Roth. Arguing counsel were Lisa Van Hoeck of the NJ federal defenders for the defendant and Robert Zauzmer of the EDPA US Attorney’s office for the governemnt.

New opinion—Third Circuit rules for government in CERCLA appeal over weapons-factory cleanup costs

Cranbury Brick Yard LLC v. United States—civil / environmental—affirmance—Bibas

This appeal arose from a dispute over who bears the costs of cleaning up a World War II-era weapons factory in New Jersey. The property’s former owner reached a settlement with the state that settled some of the liability issues. Then, the property’s current owner ratified that settlement.  When the current owner began doing the clean-up, the job proved unexpectedly expensive, and the current owner sued the federal government on the theory that it was liable as one of the site’s polluters for cost recovery and contribution under CERCLA. The district court granted summary judgment for the government, and today the Third Circuit affirmed. The court held that the current owner’s cost-recovery claim was barred by the prior settlement and that the contribution claim was time-barred.

Joining Bibas were Hardiman and Greenaway, Jr. Arguing counsel were John McGahren of Morgan Lewis for the current owner and Avi Kupfer of the DOJ for the government.

New opinion: divided Third Circuit panel rules that implant suit was filed in time

Adams v. Zimmer US—civil—reversal—Scirica

Today the Third Circuit held that a district court erred in granting summary judgment in a hip-implant product liability case  because materials disputes remained about when the patient should have realized that her implant was defective. The district court ruled that, applying Pennsylvania’s discovery rule, the patient’s time to file expired shortly before she brought the suit. The Third Circuit reversed, holding that the district court erroneously resolved factual disputes about whether the patient’s pain was caused by a defective implant instead of incorrect adjustment.

Joining Scirica was Ambro; Greenaway dissented vigorously (e.g., “the Majority is simply on an intellectual—but ultimately irrelevant—frolic”). Arguing counsel were Third Circuit Bar Association immediate past president Chip Becker of Kline & Specter for the patient and Bruce Jones of Minnesota for the implant makers.

New opinion: divided Third Circuit panel partially revives prisoner’s dry-celling suit

[The Third Circuit issued this opinion two days ago on November 12. I’m posting it later than usual due to an argument yesterday and a filing deadline the day before.]

Thomas v. Superintendent—prisoner rights—partial reversal—Porter

A peanut M&M.

A Pennsylvania prisoner ate a peanut M&M that his visitor offered him during a visit in the prison’s visiting room. Now, peanut M&Ms are allowed in the visiting room. Hell, the peanut M&M he ate came from a prison vending machine in the visiting room. But one of the guards alleged suspicion that the prisoner had eaten, not a real peanut M&M, but instead a small, colored balloon with drugs inside in an effort to sneak drugs into the prison. The theory, with my apologies for indelicacy, is that the inmate would swallow the drug-filled balloon, poop it out later, and recover the drugs inside. So the prison decided to dry cell him:

A “dry cell” is a cell that lacks water—all standing water has been drained from the toilet, the room’s water supply has been shut off, and the sink and toilet have been capped to prevent inmate access. An inmate may be placed in a dry cell when prison staff have observed the inmate attempt to ingest an item of contraband or they learn that the inmate is attempting to introduce contraband into the prison. Dry cells are used to closely observe the inmate until natural processes allow for the ingested contraband to be retrieved. To this end, dry cells lack all linens and moveable items other than a mattress, inmates’ clothes are exchanged for a simple smock, and their movements are carefully controlled to prevent them from concealing or disposing of any retrievable contraband.

To expedite his release from the dry cell, Thomas was offered laxatives, which he accepted. Over the next four days, Thomas had twelve bowel movements. No evidence of any contraband was found in any of Thomas’s bowel movements. Prison staff also x-rayed Thomas on June 1. The x-ray revealed no contraband.

And, yes, “lack all linens and moveable items other than a mattress” does mean no toilet paper and no soap, if you’re wondering. Now one might suppose that, after 4 days and












12 bowel movements, any justification for keeping the poor inmate in this appalling confinement was gone. But four prison officials—Eric Tice, Mark Garman, Timothy Miller, and Heather Halderman—decided otherwise.  Based on their decision, the inmate was dry celled for five more days, nine days total.

So he sued ’em.

The district court granted summary judgment in favor of the defendants. The Third Circuit reversed in part. It revived his Eighth Amendment challenge to the duration of his confinement, but upheld summary judgment on the conditions of confinement on the ground that there was no evidence that the defendants he sued were personally involved in those deprivations.

Joining Porter was Shwartz. Judge Greenaway dissented (is “fierily” a word?), arguing that affirming on the conditions claim reflects a “glaring error.” Arguing counsel were former Restrepo clerk James Davy, now of Equal Justice Under Law, for the inmate and Sean Kirkpatrick of the Pennsylvania AG’s office for the prison officials.


New opinion

United States v. Gray—criminal sentencing—affirmance—Quiñones Alejandro

The Third Circuit today rejected a criminal defendant’s challenges to three sentencing enhancements that increased his Sentencing Guideline advisory sentence range: for possessing a stolen gun, for reckless endangerment during flight, and for perjury during trial. As to the stolen-gun enhancement, the court held that a police report of the gun’s theft was sufficient to support it.

Joining Quiñones Alejandro (EDPA by designation) were Krause and Matey. The case was decided without oral argument.

New opinion: Third Circuit issues a major (and I think incorrect) habeas ruling

Orie v. District Attorney—habeas corpus—affirmance—Jordan

The Third Circuit today held that 28 USC § 2254(i) bars federal courts from granting relief under Fed. R. Civ. P. 60(b) when a lawyer’s error causes a petitioner to file objections to a magistrate judge’s report and recommendation after the deadline:

Janine’s arguments fail in light of a clear statutory directive . . . . The governing habeas statute, 28 U.S.C. § 2254, states plainly that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i). Thus, motions under Rule 60(b) that seek relief based on “incompetent and ineffective representation” during a proceeding under § 2254 are barred. Post v. Bradshaw, 422 F.3d 419, 423 (6th Cir. 2005) (quoting 28 U.S.C. § 2254(i)). Though couched in terms of excusable neglect, Janine’s plea that we ignore her attorney’s (and hence her) failure to timely respond to the R&R is exactly the kind of relief foreclosed by the statute itself.

It’s always possible I’m missing something, but I believe this reasoning is incorrect. “Ground for relief” as used in § 2254(i) means a ground for habeas relief, a substantive basis for vacating the conviction or sentence. It doesn’t mean that an attorney’s error can’t be the basis for overcoming a procedural barrier to relief. The Supreme Court held as much in Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012):

Arizona contends that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, bars Martinez from asserting attorney error as cause for a procedural default. AEDPA refers to attorney error in collateral proceedings, but it does not speak to the question presented in this case. Section 2254(i) provides that “the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief.” “Cause,” however, is not synonymous with “a ground for relief.” A finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted. In this case, for example, Martinez’s “ground for relief” is his ineffective-assistance-of-trial-counsel claim, a claim that AEDPA does not bar. Martinez relies on the ineffectiveness of his postconviction attorney to excuse his failure to comply with Arizona’s procedural rules, not as an independent basis for overturning his conviction. In short, while § 2254(i) precludes Martinez from relying on the ineffectiveness of his postconviction attorney as a “ground for relief,” it does not stop Martinez from using it to establish “cause.” Holland v. Florida, 560 U.S. ___, ___, 130 S.Ct. 2549, 2563, 177 L.Ed.2d 130 (2010).

Today’s opinion does not cite Martinez or Holland. In my view, the opinion’s reasoning is incorrect and rehearing is warranted.

The court also holds that 60(b) relief is barred by its prior decision in Nara v. Frank, 488 F.3d 187 (3d Cir. 2007), that its own review of the R&R was for plain error only, and that the R&R’s reasoning wasn’t plainly erroneous.

Joining Jordan were Bibas and Matey. Arguing counsel were James DePasqulale of Pittsburgh for the petitioner and Ronald Wabby of the Allegheny County D.A.’s office for the Commonwealth.

En banc Third Circuit unanimously adopts more flexible procedure for deciding prisoner cases

Brown v. Sage—prisoner rights—affirmance—Chagares (en banc)

The en banc Third Circuit today unanimously held that courts are not required to decide a prisoner’s request for indigent status (known as in forma pauperis or IFP) before reaching the merits of their suit, overruling prior circuit precedent. The panel had come out the other way applying the now-overruled precedent, with Judge Chagares urging en banc review.

The ruling was unanimous. All the court’s active judges except Judge Krause participated, plus Judge Fuentes. Chief Judge Smith briefly concurred, joined by Judge Fuentes. The case was decided without en banc oral argument.

Two new opinions

The Third Circuit issued two precedential opinions today. One, a bankruptcy case, holds that it is not  violation of the bankruptcy automatic stay for a secured creditor notified of the bankruptcy to fail to return collateral repossessed before petition was filed. The other, a criminal case, holds that a qui tam relator lacks standing to intervene to assert restitution rights in a parallel criminal prosecution. I’m busy finishing a brief to file today, so I’ll update this post after I’ve had the chance to read the opinions more carefully, likely tomorrow.

Two new opinions

The court issued two precedential opinions yesterday, I’m writing them up late because I taught my appellate-advocacy class yesterday.

In re: Healthcare Real Estate Partners—bankruptcy—reversal—Greenberg

The Third Circuit reversed a district court decision dismissing a debtor’s action for damages for violating the bankruptcy automatic stay. The court rejected the argument that it lacked jurisdiction because the underlying bankruptcy remained pending, holding that the automatic-stay-violation-damages action may be separate.

Joining Greenberg were Chagares and Greenaway Jr. Arguing counsel were Christopher Loizides of Loizides for the appellant and R. Craig Martin of DLA Piper for the appellees.


Consol Penn. Coal Co. v. Federal Mine Safety & Health Review Comm.—agency—affirmance—Jordan

The Third Circuit denied a petition for review challenging an agency ruling citing a mine company for its delay in notifying it about a serious injury. The court rejected the company’s challenges to the standard of review, the agency’s factual finding about the seriousness of the injury, and the mandatory-minimum penalty.

Joining Jordan were Bibas and Nygaard. Arguing counsel were James McHugh of West Virginia for the mine and Cheryl Blair-Kijewski for the government.

Third Circuit rules that Pittsburgh’s abortion-clinic buffer zone doesn’t apply to “sidewalk counseling”

Bruni v. City of Pittsburgh—First Amendment—affirmance—Krause

After Pittsburgh’s Planned Parenthood clinic was targeted with bomb threats, vandalism, and blockades, the city council enacted an ordinance that created a fifteen-foot buffer zone outside any healthcare-facility entrance. The ordinance provided that no person could “congregate, patrol, picket or congregate” within a buffer zone. Pro-life activists who try to persuade women entering clinics not to obtain an abortion, known as sidewalk counselors, filed suit, alleging that the buffer-zone ordinance violated their free-speech rights. In a prior appeal, the Third Circuit in 2016 vacated dismissal of their suit. On remand, the district court granted summary judgment for the city.

Today, the Third Circuit affirmed on alternative grounds, holding that the ordinance is not a content-based limitation on speech because, applying a limiting construction, it does not apply to sidewalk counseling in the first place. Applying intermediate scrutiny to the plaintiffs’ facial challenge, the court “easily” concluded that the ordinance as thus construed passed.

Judge Hardiman concurred to argue that the city will not be able to enforce the ordinance against quiet conversations regardless of their content within the bounds of protected speech and that it will have to enforce the ordinance against the clinic’s own employees who congregate or pace to help clinic patients.

Joining Krause were Hardiman and Greenberg; Hardiman also concurred. Arguing counsel were Kevin Theriot of Alliance Defending Freedom for the plaintiffs and Matthew McHale (now an AUSA) for the city.

New opinion

Orie v. Secretary Pa. DOC—habeas corpus—affirmance—Bibas

Former Pa. State Senator Jane Orie was prosecuted for using state employees for personal gain and then trying to cover it up. At her original trial, she introduced forged evidence (!) in an effort to shift the blame to her chief of staff. After the judge declared a mistrial, she was retried and convicted of original charges plus new evidence-tampering and forgery charges. After her challenges to her conviction were rejected in state court, she filed a federal habeas petition asserting, with chutzpah, that retrying her after the mistrial violated her double jeopardy right. The Third Court thought not.

Joining Bibas were Jordan and Matey. Arguing counsel were William Costopoulos of Costopoulos Foster & Fields for Orie and Ronald Wabby Jr. of the Allegheny County D.A.’s office for the Commowealth.

Judge Krause awarded writing prize for lawyer-wellness essay

Third Circuit Judge Cheryl Krause and her former law clerk Jane Chong are the 2019 winners of the American Inns of Court’s Warren E. Burger Prize for their essay “Lawyer Wellbeing as a Crisis of the Profession.” The prize announcement is here. Their prize will be presented October 26 at an event at the Supreme Court hosted by Justice Neil Gorsuch.

From the announcement:

The authors describe high rates of lawyer depression, anxiety, accidental overdose, and suicide and urge comprehensive examination of the conditions that contribute to lawyer distress. “[T]he suffering lawyer can be understood as a canary in the coalmine of the legal profession,” the authors write.

Going beyond poor mental health’s effect on individual lawyers and their ability to represent clients effectively, the essay instead focuses on the way in which modern legal practices impair lawyer wellbeing and degrade the profession’s ideals. These practices include long hours, diminished training opportunities for young lawyers, the increasing commercialization of practice, and the deterioration of civility and decorum. Striking at the core of professional identity, these practices have led to decreased autonomy, diminished connectedness to others, and debilitating self-doubt.

Calling for the profession to put its ideals into practice, the essay concludes with suggestions for reform. Recommendations include expanding opportunities to develop competence, rewarding public service as well as billable hours, and raising standards of conduct outside as well as inside the courtroom.

The Burger Prize is a writing competition to promote professionalism, ethics, civility, and excellence. The winning essay by Judge Krause and Chong will be published in an upcoming issue of the South Carolina Law Review.

Chong clerked for Judge Krause 2015-16. She is an associate at Williams & Connolly in Washington D.C., and previously was an editor of Lawfare.


New opinion—Third Circuit rules that county employee’s complaint about being eavesdropped was protected citizen speech

Javitz v. County of Luzerne—constitutional—partial reversal—Restrepo

The human resources director for a Pennsylvania county complained to her superiors that another county employee had broken the law by recording her meeting with union representatives without her consent. Things went downhill from there: she alleged that the county then retaliated against her, and it eventually fired her without explanation. She sued, alleging that her firing violated her First and Fourteenth Amendment rights. The district court ruled for the county on both claims, but today the Third Circuit reversed and remanded on her First Amendment retaliation claim. The court rejected the district court’s ruling that her speech was unprotected because she spoke as a public employee rather than a private citizen: “Who Javitz spoke to, what she spoke about, and why she spoke at all each fall outside the scope of her primary job duties and evidence citizen speech.”

Joining Restrepo were Porter and Fisher. Arguing counsel were Donna EM Davis of Throop, Pa., for the plaintiff, Vernon Francis of Dechert for the ACLU as amicus supporting the plaintiff, and Mark Bufalino of Elliott Greenleaf for the county.

3 Third Circuit judges will speak at a major event on judicial independence

“Americans increasingly view the judiciary as an extension of the political system,” and “Trust in the judiciary is at a crisis level.” So say the organizers of a remarkable program that will take place at Penn Law in Philadelphia on Saturday, October 26, entitled the Fair & Impartial Judiciary Symposium.

The day will feature retired Supreme Court Justice Anthony Kennedy speaking on “The Future of Judicial Independence.” Third Circuit Judges McKee, Scirica, and Rendell also will be presenting. There are too many other notable presenters to list them all, but they include Paul Clement, Kathleen Sullivan, and Linda Greenhouse. A link to the complete agenda is here.

The lead organizer of the event appears to be the Rendell Center for Civics and Engagement, the civics nonprofit founded in 2014 by Judge Rendell and former Governor Ed Rendell.

You can register to attend at this link. Registration is $75. For lawyers, 7.0 hours of Pa. CLE credit (including a welcome 3.5 hours of ethics credit) are available for an additional $280 fee ($70 for public interest or non-profit attorneys). Seating is limited, so if you want to attend don’t delay registering.

I’m going—I can’t imagine not going. I hope to see you there.

Third Circuit judges are running the place

Four of the 12 chairs of Judicial Conference committees named this year will be Third Circuit judges, a remarkable sign of Chief Justice Roberts’s confidence in the courts’ judges.

Yesterday the Judicial Conference announced Chief Justice Roberts’s committee chair appointments for this year. The 12 chairs named this year include one judge each from the Second, Sixth, and D.C. Circuits and five district judges from five different districts … and four Third Circuit judges:

  • Judge Fisher is the new chair of the Committee on Federal-State Jurisdiction;
  • Judge Chagares continues as chair of the appellate rules advisory committee;
  • Judge Hardiman continues as chair of the information-technology committee; and
  • Judge Scirica continues as chair of the Committee on Judicial Conduct and Disability.

The chairs appointed this year cover about half of all Judicial Conference committees; chairs serve initial terms of three years subject to one reappointment, so the other half of the committees weren’t up this year.

The Mighty Third, indeed.

New opinion: getting a TRO to block sports betting turns out to have been a bad gamble

NCAA v. Governor—civil—reversal—Rendell

A party seeking a temporary restraining order has to pay a bond to cover damages sustained if the other side is found to have been “wrongfully enjoined.” So if the district court grants your TRO request but the court of appeals reverses, it’ll cost you. But what if your TRO request was rock solid under controlling precedent at the time you sought the TRO, but the other side persuades the Supreme Court to overrule that precedent? Do you still have to cough up damages?

On Tuesday, the Third Circuit answered that question affirmatively. If the TRO was right when it issued but turns out to have been wrong in the end, then enjoining was wrongful and the TRO’s seeker has to pay.

The issue arose in an interesting context. Recall that, in 2013 and then again in 2016, en banc, the Third Circuit rejected New Jersey’s effort to legalize sports betting. During the second round of litigation, the NCAA and four pro sports leagues got a TRO barring sports betting from starting. But the Supreme Court unexpectedly granted cert and then reversed both Third Circuit decisions, holding that the federal statute barring sports betting violated the Tenth Amendment’s anti-commandeering principle. So the operators of a racetrack argued that they’d been wrongfully enjoined and sought damages on the $3.4 million bond. The district court said no, but the Third Circuit vacated and remanded to calculate the damages. Ironic that the sports leagues’ effort to block gambling turned out to have been a gamble.

Joining Rendell was McKee; Porter dissented in part, arguing that the injunction wasn’t wrongful because it was based only on the statute not its constitutionality. Fascinating split. Arguing counsel were Jeffrey Mishkin of Skadden for the leagues and Ronald Riccio of McElroy Deutsch for the racetrack operators.

New opinion on SEC enforcement injunctions

SEC v. Gentile—civil / securities—reversal—Hardiman

The Third Circuit held today that the statute of limitations which applies to civil fines and penalties, 28 USC § 2462, does not apply to Securities and Exchange Commission enforcement actions seeking injunctions barring future violations and limiting future trading, deepening a circuit split on the question. The court remanded for the district court to decide whether the injunctions sought here are authorized by law.

Joining Hardiman were Krause and Greenberg. Arguing counsel were Dnaiel Staroselsky for the SEC and Adam Ford of New York for the appellee.

Two new opinions

These two opinions issued yesterday but were posted on the court’s website late due to technical issues and I didn’t see them until this morning.


Pomicter v. Luzerne County Conv. Ctr.—First Amendment—partial reversal—Scirica

An animal-rights group sought to protest a circuit being held at a county convention center and were told that they must stay inside enclosed areas near the entrance and must not use profanity or voice amplification. The group sued, alleging that these protest policies facially violated their First Amendment free speech rights. The district court agreed, but yesterday the Third Circuit reversed in part. The protesters conceded that the convention center was a nonpublic forum, where restrictions on speech are constitutional if reasonable, and the Third Circuit held that the enclosure requirement was reasonable, but that the bans on profanity and voice amplification were not.

Joining Scirica were Ambro and Greenaway Jr. Arguing counsel were Thomas Campenni of Rosenn Jenkins & Greenwald for the convention center and former Greenberg clerk Alexander Bilus of Saul Ewing for the protesters.


Prometheus Radio Project v. FCC—civil / telecom—partial affirmance—Ambro

“Here we are again,” begins the Third Circuit’s opinion in the latest round of litigation challenging Federal Communications Commission rules on broadcast media ownership. The court (1) upheld the FCC’s rule barring mergers by two of the top four stations in a market, and (2) upheld provisions of the FCC’s incubator program for helping new entrants break into the broadcast industry, but (3) vacated the bulk of the FCC’s actions over the past three years involving broadcast ownership by women and racial minorities: ” Although it did ostensibly comply with our prior requirement to consider this issue on remand, its analysis is so insubstantial that we cannot say it provides a reliable foundation for the Commission’s conclusions.”

Joining Ambro was Fuentes; Scirica dissented in part, arguing that the FCC’s actions all pass muster and should be allowed to go into effect. Arguing counsel were Cheryl Leanza of Washington D.C. for one group of petitioners, Dennis Lane of D.C. for another petitioner group, Jack Goodman of D.C. for another petitioner group, Helgi Walker of Gibson Dunn for an intervenor, and Jacob Lewis for the FCC.

New opinion—Rooker-Feldman again

Malhan v. Secretary U.S. Dep’t of State—civil—partial reversal—Hardiman

Two big Third Circuit Rooker-Feldman opinions in less than a week is either a nightmare or pinch-me-I’m-dreaming, depending on your civpro-nerdiness quotient. On the heels of last week’s epic Rooker-Feldman opinion in Weber v. McGrogan, today the court ruled that a man’s federal suit challenging his child-support payments was free to proceed despite an interlocutory state-family-court order that made findings against him. The opinion synthesizes tricky Supreme Court and Third Circuit Rooker-Feldman precedent quite impressively. Younger abstention, too.

Joining Hardiman were Chagares and Goldberg EDPA by designation. Arguing counsel were Paul Clark of Jersey City, New Jersey for the father and Ragner Jaeger of the New Jersey attorney general’s office for the defendants.

What lawyers can learn about typography from a Bibas opinion

Yesterday I opined that the typography in Judge Bibas’s opinions was the best typography on the Third Circuit “by a country mile.” Lawyers looking to improve the appearance and readability of their briefs could learn a thing or nine from Judge Bibas’s opinions.

Let’s take a closer look at specific things Judge Bibas gets right that oh-so-many lawyers get wrong:

  • Heading capitalization His claim headings, both in the opinion body and the table of contents, use Title Caps not ALL CAPS. The subsidiary headings all use neither. Only the section headings in the body of the opinion use all caps (and even there he uses small caps—and not in the table of contents). The key point: no unreadable multi-line all caps headings. Most briefs still get this wrong and, to any reader who cares about typography, it’s like showing up for your oral argument wearing a propeller cap. Sorry.
  • One space after periods
  • Zero underlining, and easy on the boldface
  • Smaller paragraph indents Just say no to those goofy 1-inch paragraph indents so many lawyers still adore, at least.
  • Hyphenation on with justified text
  • Better line spacing Opinions are single-spaced, but Judge Bibas uses slightly more open line-spacing to improve readability. What a difference: notice how much more visually pleasing it is to read the majority opinion than the dissent. The rules for briefs prevent lawyers from single-spacing (alas) but we can get closer to the ideal by using 28-point line spacing (i.e. actual double-spacing for 14-point type) instead of Word’s default double-spacing.
  • Hard spaces after § symbols
  • No orphan headings (“keep with next” setting in Word)
  • Using a bulleted list for emphasis
  • En dashes for number ranges
  • Real em dashes Not double hyphens autocorrected into en dashes
  • Citations in text not footnotes With more judges reading briefs on tablets, this has gone from the majority choice to the correct choice for lawyers.

Put it all together and it looks terrific. With a little effort up front, your briefs could look almost this good too. (Good luck matching Judge Bibas’s clear writing, though.)

Sure, a professional typographer could still pick some nits. Using Times New Roman is the biggie; CA3 judges may not have the option of picking a better font, but lawyers do and should. I use Equity for maximum font-nerd cred. And using soft returns (shift + return in Word) and hanging indents in your tables of contents makes the structure easier for readers to see.

To learn more about good typography, the indispensable resource is Matthew Butterick’s book Typography for Lawyers, now in its second edition. If the appellate lawyer you were thinking about hiring doesn’t own a copy, keep on looking. Other reliable resources that are free include Butterick’s superb website and the Seventh Circuit’s typography guide.

Five new opinions, four of them reversals

Five opinions again today! Some long ones, too. “What a pleasure,” and “I’m doomed,” both.

Northeastern Pa. Freethought Society v. County of Lackawanna Transit System—First Amendment—reversal—Hardiman

[Disclosure: I assisted counsel for the atheist group on appeal, mainly by serving as a judge at an oral-argument moot.]

The Third Circuit today held that a county bus system violated the First Amendment by refusing to display an ad that read “Atheists” on the sides of its busses. The bus system barred any ads with religious messages, and the court held that this policy was viewpoint discrimination, splitting with a D.C. Circuit case with a pending certiorari petition. Even if barring speech on religious issues weren’t viewpoint discriminatory, the policy here still would fail as a content-based restriction because the bus system failed to show that its policy was reasonable.

Joining Hardiman was Porter; Cowen dissented, arguing that the bus system’s policy was not viewpoint-discriminatory and was reasonable. Arguing counsel were Molly Tack-Hooper of the Pa. ACLU for the atheist group and Thomas Specht of Marshall Dennehey for the bus system.


USA ex rel. Bookwalter v. UPMC—civil / qui tam—reversal—Bibas

The Third Circuit today reversed the dismissal of a suit under the False Claims Act and the Starks Act alleging healthcare fraud. From the introduction:

This appeal revolves around two questions: First, do the relators offer enough facts to plausibly allege that the surgeons’ pay varies with, or takes into account, their referrals? Second, who bears the burden of pleading Stark Act exceptions under the False Claims Act?

It answered the first question yes, and the second the defendants.

(Have I opined already that Judge Bibas’s opinions have the best typography on the court by a country mile?)

Joining Bibas was Fuentes; Ambro concurred in the judgment, arguing that the majority construed the Stark Act too broadly. Both opinions are masterfully written. Arguing counsel were Gregory Simpson of Georgia for the appellants and Jessica Ellsworth of Hogan Lovells for the appellees.


Howell v. Superintendent Rockview SCI—habeas corpus—affirmance—Fisher

After an all-white jury convicted a man of felony murder in Pennsylvania’s Allegheny County, the man filed a habeas corpus petition claiming that the county systematically excluded African Americans from the pool of potential jurors. His evidence showed that African Americans were over 10% the jury-eligible population but less than 5% of the jury pool. Today, the Third Circuit affirmed the denial of relief on his fair cross-section claim, on several grounds: his data was unreliable because it was derived from returned jury questionnaires without adequately accounting for unreturned questionnaires, the absolute and relative disparities he showed weren’t big enough, there was no readily identifiable cause for the disparity, the process was facially neutral, the disparity study only covered six months, and the county took various steps purportedly to reduce the disparity. On the bright side for habeas petitioners, the court held that the state court’s ruling had been contrary to and an unreasonable application of federal law under 28 USC § 2254(d)(1).

Judge Porter concurred, noting that he would not have reached the data-reliability point and underscoring that the county’s jury-selection goes beyond what the constitution requires by using motor-vehicle records in addition to voter-registration lists.

Judge Restrepo dissented, arguing that the petitioner’s evidence was strong enough and the Commonwealth had presented no contrary evidence, that the majority opinion “sets forth a new standard of statistical purity that will foreclose nearly all fair-cross-section claims,” and that the majority’s reasoning forecloses relief any time the excluded group constitutes less than 10% of the population: “Such an interpretation simply cannot be an accurate statement of the law.”

Arguing counsel were Loren Stewart of the EDPA federal defenders for the petitioner and Rusheen Pettit of the Allegheny County D.A.’s office for the Commonwealth.


Bank of Hope v. Chon—First Amendment—reversal—Bibas

When a bank sued a former executive for embezzlement, the former executive sent letters to shareholders disputing the banks allegations hoping to pressure it to settle. The district court banned the former executive from contacting shareholders, but today the Third Circuit vacated its order on the grounds that it “marshaled no evidence that this restriction on speech was needed to protect the trial’s fairness and integrity” and it failed consider less-restrictive alternatives.

Joining Bibas were Jordan and Matey. Arguing counsel were Stephen Harvey of Steve Harvey Law for the former executive and Michael Yi of New York for the bank.


Fed Cetera v. National Credit Services—civil / contract—reversal—Fuentes

A debt collector signed a contract with another company promising to pay the company a finder’s fee if it “consummated” a deal with the government during a set time period. The debt collector signed a contract with government during the time period, but didn’t start work on that contract until after the period was over. The debt collector argued that it didn’t owe the finder’s fee  because the deal wasn’t “consummated” when its deal was signed, only when it began performance. The Third Circuit concluded otherwise.

Joining Fuentes were Krause and Cowen. Arguing counsel were Michael McMcCaney Jr. (formerly?) of Keller & Goggin for the finder and Arthur Fritzinger of Cozen O’Connor for the debt collector.

Two new opinions: insurance coverage and arbitration

Sapa Extrusions v. Liberty Mutual Insurance—civil / contract / insurance—partial reversal—Porter

The Third Circuit today decided a Pennsylvania insurance-coverage dispute, partially reversing a ruling in the insurers’ favor.

In the underlying lawsuit, a company that made parts used in windows was sued by the window maker after customers complained that the parts were rusting. The partmaker settled with the window company for “a large sum.”

The partmaker then sought to recover under the 28 (!) different commercial general liability policies it had purchased. One might imagine that, if you’re a company who makes a part, the big reason you buy liability insurance is precisely to cover you if you get sued over your part, no? But evidently that point was in doubt given Pennsylvania caselaw involving what occurrences trigger insurance coverage, and the district court ruled that the 28 policies provided zero coverage.

Today, the Third Circuit reversed in part. Focusing on the specific language of the different policies, the court held that under Pennsylvania law most of the policies did not provide coverage because the problems with the part were not unforeseeable, fortuitous events. But the court revived the partmaker’s claims as to nine of the policies which used different language to define coverable occurrences.

Joining Porter were Restrepo and Fisher. Arguing counsel, all three of them top-shelf advocates, were James Martin of Reed Smith for the partmaker, and Teresa Ficken Sachs of Marshall Dennehey and Stephen Cozen of Cozen O’Connor for the insurers. Audio of the argument is here.


In re: Remicade Antitrust Litigation—civil / arbitration—reversal—Krause

The Third Circuit today held that a drug wholesaler’s antitrust claims against a pharmaceutical maker for price inflation were covered by an arbitration agreement between the two companies covering any “controversy or claim arising out of or relating to” their distribution agreement. A key issue in the appeal was whether federal or state law governed interpretation of the arbitration clause; the opinion’s bottom line was that non-preempted state law generally governed when it dictated a clear outcome. Applying New Jersey law, the court concluded that the arbitration clause covered the antitrust claims here.

Joining Krause were Shwartz and Fuentes. Arguing counsel were William Cavanaugh Jr. of Patterson Belknap for the pharmaceutical maker and David Sorensen of Berger Montague for the wholesaler.

Five new opinions

Weber v. McGrogan—civil—dismissal—Matey

A woman filed a pro se lawsuit in federal court arising from “her experiences dealing with New Jersey public officials during a child custody matter.” When she filed it, the custody dispute was still being litigated in state court. The district court dismissed her suit on Rooker-Feldman or Younger-abstention grounds, but its dismissal was without prejudice. The pro se plaintiff filed a notice of appeal, was notified by the court the ruling wasn’t final, asked the district court to issue a final ruling, and then agreed to dismiss her appeal. The defendants then asked the district court to dismiss with prejudice because she hadn’t amended, and response, the district court entered a docket entry stating that the case was terminated and citing the prior dismissal with prejudice.

So, was either (1) the docket entry terminating the case, or (2) the earlier order dismissing with prejudice as appealable final order? Today, the court answered this “surprisingly elusive” question in the negative. The docket entry wasn’t a final order because it was a “utility event” instead of a text order. The earlier dismissal wasn’t appealable either, despite prior Third Circuit cases allowing appeals by litigants choosing to stand on their complaint without securing a dismissal with prejudice because the pro se woman’s intent to stand on her complaint here wasn’t clear enough. So the court concluded that the woman still has a live action in district court and that she is free to appeal, again, after the district court enters a final order.

Starting in the introduction and continuing throughout the opinion, Judge Matey employs an epic-journey theme. For example, the opinion opens with a quote from Ulysses and then observes that finality is required for appellate jurisdiction because “an epic poem of problems often follows when charting any other course.” The recitation of the procedural history notes at one point, “And that is where the story begins its journey into mystery.” This style of writing has not been common in the Third Circuit, and it will be interesting to see whether Judge Matey, uh, continues down this path.

Joining Matey were Jordan and Bibas. Arguing counsel were Christopher Zirpoli of Covington & Burling as court-appointed amicus for the plaintiff and Michael Sarno of the NJ office of the attorney general for the state. The court thanked court-appointed counsel for his “able assistance.”


Sorry, dear reader, but when the court issues five opinions (!) in one day, and you go on for four paragraphs about the first one, and you’re actually a busy lawyer not a blogger, then the other four cases don’t get their due.

U.S. v. Aviles—criminal—reversal—Rendell

The Third Circuit today vacated a defendant’s sentence because it held that at least two of the prior convictions upon which the sentence was based did not qualify as felony drug offenses under 21 USC § 841.

Joining Rendell were McKee and Roth. Arguing counsel were MDPA AUSA Stephen Cerutti II for the government and MDPA AFPD, and former Fisher clerk, Quin Sorenson for the defendant.


North Sound Capital v. Merck—civil—reversal—Krause

The introduction:

In these consolidated appeals, we consider whether the Securities Litigation Uniform Standards Act (SLUSA) prohibits investors from bringing individual actions under state law if they exercise their constitutionally protected right to opt out of a class action. Hewing to SLUSA’s text, we conclude that these opt-out suits and the class actions from which these plaintiffs excluded themselves were not “joined, consolidated, or otherwise proceed[ing] as a single action for any purpose.” 15 U.S.C. § 78bb(f)(5)(B)(ii)(II). Accordingly, we will reverse the District Court’s dismissal of these suits and remand for further proceedings.

Joining Krause was Bibas; Shwartz dissented, arguing that the opt-out actions functioned as a single action with the class action and thus were properly dismissed. Arguing counsel were Daniel Hume for the appellants and Daniel Kramer for the appellees.


Chang v. Children’s Advocacy Center of Del.—civil / qui tam—affirmance—Porter

The Third Circuit today ruled that district courts are not statutorily required to hold an in-person hearing before dismissing a complaint under the False Claims Act and Delaware’s state-law analog.

Joining Porter were McKee and Rendell. Arguing counsel were Michael Confusione of Hegge & Confusione for the appellant and Dylan Steinberg for the government.


In re: Hackler—bankruptcy—affirmance—Roth

The Third Circuit held that a real-estate-title transfer under New Jersey’s tax foreclosure procedures may be voided under section 547(b) of the bankruptcy code.

Joining Roth were McKee and Porter. Arguing counsel were Elliott Almanza of Goldenberg, Mackler for the appellant and Leonard Walczyk of Wasserman, Jurista & Stolz for the appellee.

Third Circuit sets up workplace conduct committee and hires a director

The Third Circuit today announced the formation of a Workplace Conduct Committee and the appointment of its first Director of Workplace Relations. A link to the announcement is here.

The committee “will examine existing Third Circuit policies and procedures for preventing and addressing workplace misconduct” and “will present recommendations to the Judicial Council on how to promptly and effectively process complaints of such misconduct. Chief Judge Smith will chair the committee and its other members include six judges plus Circuit Executive Margaret Wiegand. I suspect it is not an accident that five of the eight committee members, including Third Circuit Judge Shwartz, are women.

The circuit’s new Director of Workplace Relations is Julie Procopiow Todd, who currently is an administrative judge for the EEOC. The director ” will coordinate implementation of employment dispute resolution policies for all courts within the Third Circuit” and “create a circuitwide workplace conduct office that will not only develop proposed policies but also provide trainings aimed at fostering healthy working environments and the fair resolution of workplace issues.”

Said Chief Judge Smith in the announcement, “Ms. Todd’s background in EEOC matters is an invaluable asset, and one that will redound to the great benefit of the entire Third Circuit as we continue our efforts to provide a safe, hospitable, and efficient workplace for all.”

Two interesting reversals: one on Eleventh Amendment grounds, the other in a prisoner-civil-rights case

This fall I’m fortunate enough to be a lecturer at Penn Law teaching appellate advocacy. (Co-teaching actually, with Pa. Innocence Project legal director and fellow Third Circuit Bar board member Nilam Sanghvi.) Yesterday I was scrambling to prepare last night’s class, so I’m posting about yesterday’s two interesting published decisions the day after.


In re: PennEast Pipeline Co.—civil / Eleventh Amendment—reversal—Jordan

The PennEast Pipeline Company plans to build a controversial natural gas pipeline through New Jersey and Pennsylvania. To acquire the land where the pipeline would go, PennEast wants to seize lots of properties through eminent domain, including 42 properties that are owned by the state of New Jersey. The company claimed authority to seize the properties under the Natural Gas Act of 1938, which lets private gas companies use the federal government’s eminent-domain power. New Jersey fought the company’s condemnation actions, asserting Eleventh Amendment state sovereign immunity, but the district court rejected the state’s argument and let the company’s condemnations proceed.

The Third Circuit vacated and remanded, holding that the company’s condemnation suits involving state property were barred by Eleventh Amendment sovereign immunity.  It held that (1) the NGA did not abrogate states’ sovereign immunity and (2) delegating federal eminent-domain power did not delegate federal power to overcome state sovereign immunity. The court recognized that its ruling could disrupt how the natural gas industry has long operated. It explained that gas pipelines “can still proceed” with the government itself doing the condemning of state property, but it acknowledged that new Congressional authorization could be required for this. “In any event, even if the federal government needs a different statutory authorization to condemn property for pipelines, that is an issue for Congress, not a reason to disregard sovereign immunity.”

Joining Jordan were Bibas and Nygaard. Arguing counsel were Jeremy Feigenbaum of the NJ attorney general’s office for the state and James Graziano of Archer & Greiner for the pipeline company.


Garrett v. Wexford Health—prisoner civil rights—reversal—Smith

Courts are often criticized for treating cases with wealthy litigants more seriously than cases with poor ones. It’s a fair criticism in my view, but there are exceptions and this case is a glimmering one.

Kareem Garrett was a state prisoner who needed a wheelchair and a walker to get around. After he was transferred to a different prison, the new prison allegedly took away his wheelchair and walker and forbade him from getting assistance from his fellow inmates. Unable to get around, he injured himself falling and wasn’t able to get to the doctor, bathe himself, or get food to eat. So, with no lawyer to help him, Garrett filed a civil rights complaint against officials at the prison, alleging that they denied him needed medical devices, disciplined him for asking for help walking, and laughed when he fell and struggled on the floor.

The corrections office rejected his grievances, concluding that his medical care had been reasonable and no evidence of neglect was found. In district court, Garrett asked for appointment of counsel but was denied. He filed various amendments alleging more factual details and trying to refine his legal claims, with his final amended complaint filed after his release from prison. The district court ultimately dismissed some of his claims for failing to administratively exhaust, and it dismissed the rest for failing to comply with Civil Rule 8’s “short and plain statement” requirement. Undaunted, Garrett appealed.

On appeal, Garrett finally got counsel to represent him pro bono: a Penn Law student supervised by two lawyers at Dechert. (The opinion doesn’t say it, but my understanding is that the decision to seek appointment of pro bono counsel in deserving prisoner appeals is made by the court.) And yesterday, in a 49-page precedential opinion that is thorough, careful, and magnificent, the Third Circuit ruled in Garrett’s favor.

First, the court held that Prisoner Litigation Reform Act’s administrative-exhaustion requirement doesn’t apply to claims filed by former prisoners after their release. So refiling his claims after his release cured any administrative-exhaustion defect, it held, disagreeing with an Eleventh Circuit decision. The court also held that the post-release-filed claims were timely because they related back to the original complaint, acknowledging that this holding conflicted with a recent Tenth Circuit decision.

Second, the court held that the district court abused its discretion by broadly dismissing Garrett’s pro se claims on Rule 8 short-and-plain-statement grounds, underscoring the “even more pronounced” liberal construction courts should apply to pro se pleadings and noting that the defendants’ responses to his claims demonstrate their ability to engage them.

Joining Smith were Chagares and Greenaway Jr. Arguing counsel were Justin Berg (then a Penn Law student, now clerking for an EDPA judge) for the prisoner and, for various defendants, Samuel Foreman of Weber Gallagher, Kemal Mericli of the Pa. attorney general’s office, and Cassidy Neal of Mattis Baum & O’Connor. The opinion expressed the Court’s gratitude to Berg and Stuart Steinberg and Cory Ward of Dechert “for donating their time and talent in accepting this pro bono appointment and for zealously representing Kareem Garrett before our Court.”


Third Circuit grants panel rehearing on § 924(c) issue

The Third Circuit today granted panel rehearing to reconsider a criminal appeal. The order granting rehearing is here, and the prior non-precedential opinion is here. The case is U.S. v. Walker, No. 15-4062.

The original panel opinion, inter alia, denied the defendant’s challenge to his firearms conviction under 18 U.S.C. § 924(c)(3). A couple weeks after the panel issued its opinion, the Supreme Court held in U.S. v. Davis that § 924(c)(3)(B) is unconstitutionally vague.

Today’s rehearing order states:

The petition for rehearing filed by appellant in the above-entitled case having been submitted to the judges who participated in the decision of this Court, it is hereby ORDERED that the petition for rehearing by the panel is granted. The opinion and judgment entered on June 5, 2019, are vacated. The parties are directed to file supplemental letter briefs, limited to five single-spaced pages, addressing the significance of United States v. Davis, 139 S. Ct. 2319 (2019), for the proper disposition of this case. The supplemental letter briefs should be directed to the panel and must be filed within fourteen days.

The prior panel opinion was authored by Judge Krause and joined by Judges Jordan and Roth, and today’s order was signed by Judge Krause for the court.

Third Circuit upholds procedural challenges to man’s deportation

Luziga v. Attorney General—immigration—reversal—Fisher

Here’s the introduction of today’s Third Circuit opinion granting a Tanzanian man’s immigration petition for review:

An Immigration Judge (IJ) decided, and the Board of Immigration Appeals (BIA) agreed, that Petitioner Ayub Luziga is ineligible for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT) because he was convicted of a “particularly serious crime,” and that he is not entitled to deferral of removal under the CAT  because he failed to carry his burden of proof. Luziga requests our review, arguing that the IJ and BIA made two legal errors. First, Luziga argues that the IJ and BIA misapplied the framework for making particularly serious crime determinations, a framework the BIA itself has established in its precedential opinions. Second, Luziga argues that the IJ failed to observe the rule we articulated in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), requiring immigration judges to notify a noncitizen in removal proceedings that he is expected to present corroborating evidence before finding that failure to present such evidence undermines his claim. We agree that the IJ and BIA erred in these respects; therefore, we will grant Luziga’s petition for review, vacate the underlying order, and remand.

On the first point, misapplication of the particularly-serious-crime framework, the IJ and BIA were required to consider separately the elements of his crime but failed to do so, focusing instead on the facts of the crime.

On the second, corroboration point, the opinion was blunt: “what we prohibit is failing to notify the noncitizen of an unspoken expectation and then penalizing him for failing to meet it,” and “we strictly enforce this rule.”

Joining Fisher were Ambro and Restrepo. Arguing counsel were Khary Anderson for the petitioner and Jennifer Khouri of the DOJ for the government. In a footnote, the court ” express its gratitude to a recent graduate of the University of Pennsylvania Law School, Khary Anderson, and his supervising lawyers, Joseph Patrick Archie and Christopher J. Mauro of Dechert LLP, for their excellent pro bono representation of the Petitioner in this matter.” Not a bad way to start a legal career.

Divided Third Circuit rules that immigration statute’s differential treatment of fathers and mothers violates equal protection

Tineo v. AG—immigration / equal protection—reversal—Greenaway Jr.

Today’s lone precedential Third Circuit case involves an interesting gender-based equal protection challenge to the statutory regime that controls how parents who are U.S. citizens are able to pass citizenship to their children. To over-simplify, the statutes impose some limits on fathers’ ability to pass citizenship to their children that don’t apply to mothers. The petitioner in this case is a citizen of the Dominican Republic who came to the U.S. as a teenager but now faces deportation. His father was a naturalized citizen who was unable (due to the workings of the statute) to pass his citizenship along to him, while his mother would have been able to were she still alive. So he challenged his removal by challenging the statutory regime on gender-discrimination grounds.

The Third Circuit ruled in the petitioner’s favor. It held that intermediate scrutiny applied, and that the gender classification here failed because the government failed to show that it served an important governmental interest today. It further rejected the government’s argument that it should leave any remedy to Congress, holding that the petitioner was entitled to the statutory benefit available to petitioners with similarly situated mothers.

Chief Judge Smith dissented in part, agreeing that intermediate scrutiny applied but arguing that the classification met it.

Joining Greenaway Jr. was Krause, with Smith dissenting in part. Arguing counsel were Nick Curcio of Michigan for the petitioner and Stefanie Hennes of the DOJ for the government.


New opinion: a noteworthy habeas reversal

Velazquez v. Superintendent Fayette SCI—habeas corpus—reversal—Greenaway

In a notable habeas case, the Third Circuit today reversed a district court’s denial of relief and held that the petitioner’s trial counsel provided ineffective assistance of counsel in connection with his attempted defense of guilty but mentally ill (GBMI). Pennsylvania law provides that no GBMI plea may be accepted until the judge has examined  the relevant mental-health-expert reports, held a hearing, and determined whether defendant was mentally ill at the time of the offense. In this case, the defendant said he wanted to plead GBMI, but the trial court took a straight guilty plea while promising to hold a GBMI hearing later. The trial lawyer never submitted reports, and the court never reviewed reports, held a hearing, or decided whether the defendant was mentally ill.

A claim for ineffective assistance of counsel has two prongs: deficient performance and prejudice. In the part of the case likely to have the broadest future application, the Third Circuit held that trial counsel’s performance “easily” qualified as deficient given his failure to research a key point of law, namely the applicable GBMI procedures. The harder question was whether the inmate had shown prejudice, especially because a GBMI plea wouldn’t have reduced the length of the sentence he received. The court held that proving prejudice required only demonstrating that he would have pled GBMI, not that the plea was likely to be accepted nor that a lesser sentence would have resulted.

The case also had a jurisdictional wrinkle. The court held that the district court erred by taking at face value the petitioner’s characterization of the relief sought and thus concluding that his claim wasn’t cognizable. The district court should have recognized that the claim was cognizable, imperfect pleading notwithstanding, and even if it weren’t the district court shouldn’t have dismissed it yet.

Having held that the petitioner was entitled to relief on his ineffective-assistance claim, the court remanded to district court with instructions to grant the habeas petition and to vacate the petitioner’s present judgment.

Joining Greenaway were Smith and Chagares. Arguing counsel were Rosemary Auge of the EDPA federal defenders for the inmate and Travis Anderson of the Lancaster County DA’s office for the Commonwealth. The opinion praised the petitioner’s current counsel, Auge and Arianna Freeman, for “skillfully and diligently” catching a misreading of the record made by every court and lawyer before and persuading the court to hear the petitioner’s GBMI claim.

It’s Judge Ambro Day at the Third Circuit

I posted earlier about the en banc decision issued today in the TSA-tort-liability case, in which the opinion for the court was authored by Judge Ambro. The court issued two panel opinions today too, and both of them were authored by Judge Ambro as well. Three published opinions by one judge issued on the same day? Impressive. Pretty sure this is the first time that’s happened in the five-plus years I’ve been doing the blog.

Verma v. 3001 Castor, Inc.—civil / employment — affirmance —Ambro

The cogent introduction:

A jury in the District Court awarded more than $4.5 million to a class of dancers at the Penthouse Club, an “adult gentleman’s club” in Philadelphia owned and operated by 3001 Castor, Inc., for unpaid minimum wages and unjust enrichment under Pennsylvania law. The Court denied the motion of Castor to set aside the verdict, and it appeals to us. We join our District Court colleague, Judge Brody, in concluding that, as a matter of “economic reality,” the dancers were employees of Castor, not its independent contractors, and we reject Castor’s novel argument that the federal Fair Labor Standards Act (“FLSA”) precludes the class’s claims for unjust enrichment. We also conclude that Castor is not entitled to any credit or offset against the jury award for payments already received by the dancers. We thus affirm across the board and sustain the jury’s verdict.

Joining Ambro were Greenaway and Scirica. Arguing counsel were John Innelli of Philadelphia for the club and Jamisen Etzel of Carlson Lynch for the dancers. So, two men argued this appeal in front of a panel made up of three men: not how it oughtta be.


Matheis Jr. v. CSL Plasma—civil / disability—reversal—Ambro

The Third Circuit held that plasma-donation centers are subject to the Americans with Discrimination Act’s bar on unreasonable discrimination by “service establishments,” joining the Tenth Circuit in a split with the Fifth.  The court further held that the district court erred in dismissing an ADA challenge to a center’s bar on plasma donations by anyone who uses a psychiatric service animal.

Joining Ambro were Restrepo and Fisher. Arguing counsel were Zachary Nahass of the CGA law firm for plaintiff, Bruce Douglas of Ogletree Deakins for the center, and John Delacourt of the Plasma Protein Therapeutics Association for amicus.

En banc Third Circuit rules that TSA screeners aren’t immune from tort suit

Pellegrino v. U.S.A. Transportation Security Admin.—civil—reversal—Ambro

The en banc Third Circuit today held that TSA officers not immune from suit for intentional torts. The Federal Tort Claims Act waives federal sovereign immunity for specified intentional torts “investigative or law enforcement officers,” defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” TSA screeners meet that definition, the court held, and “Words matter.”

The en banc court split 9 to 4. The majority: Chief Judge Smith and Judges Ambro, McKee, Chagares, Greenaway, Shwartz, Restrepo, Bibas, and Porter. The dissenters: Judges Jordan, Hardiman, Krause, and Scirica. (Judges Matey and Phipps joined the court after the oral argument and thus did not participate per circuit practice.) It’s a fascinating, ideologically fractured split sure to generate lots of conversation and tea-leaf reading by court watchers.

The panel decision had come out the other way, with Judges Krause and Scirica the majority and Judge Ambro dissenting.

Judge Krause dissented with gusto, describing the majority’s reading of the statute as “breathtaking”  and “textually unsound” and arguing that it creates a circuit split.

Arguing counsel were Paul Thompson of McDermott Will for the plaintiffs and Mark Sherer for the screeners and the government.

New opinion: plaintiff adequately alleged deliberate indifference in suit arising from mentally ill man’s suicide during police encounter

Haberle v. Borough of Nazereth—civil rights / disability—reversal—Scirica

The first time this case was before the Third Circuit, the court partially reversed the district court’s dismissal, holding that the American with Disabilities Act applies to police officers making an arrest and remanding to let the plaintiff amend her claim. I summarized that opinion as follows:

A severely depressed man with a gun was in an apartment threatening to kill himself. Fearing for the man’s life, his longtime partner called the Nazareth, PA, police to help. But instead of waiting for trained crisis negotiators to arrive, a local police officer called his fellow officers “a bunch of fucking pussies” and decided to go in himself because “[t]his is how we do things in Nazareth.” When the officer knocked on the door and identified himself as a police officer, the man inside killed himself.

The man’s estate sued the officer and the borough, alleging various constitutional violations and violation of the Americans with Disability Act. The Third Circuit yesterday upheld the dismissal of the constitutional claims, holding that the officer’s conduct does not shock the conscience, but remanded to allow the plaintiff to amend her ADA claim, holding that the ADA applies to police officers making an arrest.

On remand, the plaintiff amended her ADA claim, the district court dismissed again, and the plaintiff appealed again. Today, the Third Circuit reversed again, holding that the plaintiff’s allegations of deliberate indifference were sufficient because she “alleges facts that support a history of encounters between disabled individuals and Department personnel that resulted in harm to those individuals, the Department’s awareness of those encounters and their risks, and its failure to adopt an offered policy to address them.”

Joining Scirica were Ambro and Greenaway. The appeal was decided without oral argument.

New opinion—trial court erred in reducing punitive damages based on nominal-damages award

Jester v. Hutt—civil—partial affirmance—Hardiman

The Third Circuit today upheld a civil verdict in favor of a horse-boarding facility for breach of contract and defamation. The boarding facility had brought the claims against an owner of horses it had boarded, and the horse owner had countersued for negligence and related claims. The jury found for boarding facility and awarded compensatory and nominal damages plus $89,999 in punitive damages, which the trial court reduced to $5,500.

Both sides appealed, and the Third Circuit sided with the boarding facility. The court rejected the horse owner’s challenges to the verdict, and it vacated the trial court’s reduction of the punitives award. It held that precedent requiring proportionality between punitive damages and compensatory damages doesn’t apply to nominal damages, so the trial court erred in relying on the $1 nominal-damages award for defamation as a basis for slashing the jury’s punitives award.

Joining Hardiman were Porter and Cowen. Arguing counsel (not labeled as such in the opinion, but confirmed by the audio) were Gordon Einhorn of Thomas Thomas & Hafer for the horse owners and Mark Bradshaw of Stevens & Lee for the boarding facility.

Third Circuit rejects challenge to legislative prayer, grants en banc rehearing in Amazon third-party-vendors case

Fields v. Speaker of the Pa. House of Representatives—civil / First Amendment—partial affirmance—Ambro

The Pennsylvania House of Representatives opens legislative sessions with a prayer by a guest chaplain, but it bars nontheists from giving these prayers. Today, the Third Circuit rejected several constitutional challenges to the theistic-prayer-only policy. “As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power.” The court also held that the House’s request that visitors rise for the prayer was constitutional because it was not coercive.

[Disclosure: I provided some minor consulting assistance on appeal to counsel for the challengers.]

Joining Ambro was Fisher. Restrepo dissented in part, arguing that the House policy violates the establishment clause because it “purposefully excludes adherents of certain religions and persons who hold certain religious beliefs from serving as guest chaplains.” Arguing counsel were Karl Myers of Stradley Ronon for the House Speaker and Alexander Luchenitser of Americans United for Separation of Church & State for the challengers.


Also today, the court granted rehearing en banc in Oberdorf v. In Oberdorf, a divided panel had held that, under Pennsylvania law, Amazon was a seller in third-party-vendor sales and thus strictly liable for defective products sold by other vendors on its website. The now-vacated panel opinion is here, my blog post is here.

New opinion—filing deadline for railway-worker whistleblower claims isn’t jurisdictional

Guerra v. Consolidated Rail Corp.—civil—affirmance—Porter

The Federal Railway Safety Act requires employees alleging whistleblower retaliation to file an agency complaint within 180 days. The Third Circuit held today that this FRSA filing deadline is a claim-processing rule, not jurisdictional. The Court nevertheless affirmed dismissal of the complaint on timeliness grounds, rejecting the employee’s mailbox-rule argument on the facts. Judge Porter’s opinion was well-crafted, a model of clear and readable judicial writing.

Joining Porter were Hardiman and Cowen. Arguing counsel were Lawrence Katz of Coffey Kaye for the employee and Joseph Sirbak, II of Cozen O’Connor for the railroad.



Three new opinions, zero affirmances

Stone v. Troy Construction—civil—reversal—Jordan

Under the Fair Labor Standards Act, the statute of limitations to bring suit is a year longer if the FLSA violation was willful. Today, the Third Circuit reversed a district court’s ruling that employees’ claims were barred by the shorter deadline for non-willful violations, holding that the district court applied an overly burdensome standard for assessing wilfulness when it effectively required employer conduct worse than recklessness.

Joining Jordan were Krause and Roth. Arguing counsel were Matthew Miller of Swartz Swidler for the employees and James Boudreau of Greenberg Traurig for the employer.


Secretary US Dept. of Labor v. Bristol Excavating—civil—reversal in part—Jordan

In the second of today’s Jordan-authored FSLA reversals, the Third Circuit held that bonuses paid by third parties to employees do not automatically count as “remuneration” that employers must include when calculating the employees’ over time rate. Instead, whether bonuses paid by third parties must be included in the overtime-pay calculation depends on the understanding of the employer and the employees, to be determined case-by-case.

Joining Jordan were Smith and Rendell. (Smith replaced Vanaskie on the panel after the latter’s retirement.) Arguing counsel were Casandra Blaney of Brann Williams for the employer and Rachel Goldberg for the labor department.


Wolfington v. Reconstructive Orthopaedic Assocs.—civil—partial reversal—Fuentes

A surgery patient alleged that his medical provider violated the Truth in Lending Act by failing to make certain disclosures about installment payment of his deductible. The Third Circuit affirmed the district court’s dismissal of the claim on the ground that TILA’s disclosure requirement did not apply to the oral agreement here. But the Third Circuit vacated the district court’s sua sponte imposition of Rule 11 sanctions, holding that substantive grounds for the sanctions were mistaken and that sua sponte awards of attorneys’ fees under Rule 11 are not allowed.

Joining Fuentes were Krause and Cowen. Arguing counsel were Peter LeVan Jr. of the LeVan Law Group for the appellant and Laura Ruccolo of Capehart Scatchard for the medical provider.

New opinion: Third Circuit revives abortion-clinic buffer zone

Turco v. City of Englewood—civil—reversal—McKee

In response to ongoing incidents outside a local health clinic that provided women’s health services including abortion—members of an antiabortion group were gathering outside the clinic and engaging in “extremely aggressive, loud, intimidating, and harassing behavior” towards patients and others—the city of Englewood, New Jersey enacted a buffer-zone ordinance. The ordinance had the effect of requiring the aggressive protesters as well as others to keep a set distance from the clinic. The ordinance was challenged in federal court by a sidewalk counselor who alleged that the buffer-zone ordinance violated her First Amendment speech and free-association rights, and the district court granted summary judgment in her favor.

Today, the Third Circuit reversed, holding that genuine factual issues precluded summary judgment and that the Supreme Court’s 2014 McCullen decision was distinguishable because it involved a substantially larger buffer distance (35 feet versus 8 feet).

Joining McKee was Siler CA6 by designation; Vanaskie had been the third panel member before he retired. Arguing counsel were Donald Klein of the Weiner Law Group for the city and Francis Manion of the American Center for Law and Justice for the plaintiff.

Blog housekeeping

I’m back from my two-week vacation in Namibia. Dear reader, if you want to see mind-blowing golden dunes, get close-up with dazzling African wildlife, and meet amazingly welcoming English-speaking people—and you don’t mind bumping along a lot of dusty gravel roads—Namibia is hard to beat. It was a once-in-lifetime adventure, but now I’m glad to back to CA3-land.

I’m truly grateful to David Goodwin, who graciously agreed to take over here at CA3blog while I was gone. I hope you’ve enjoyed his posts as much as I have, and I hope I can coax him into continuing to share his incisive and witty analysis here in the future. I’ve gone back and updated David’s posts to make clearer who deserves the credit.

New Opinion: University of Immigration Honeypot [guest post]

This is a guest post by David Goodwin.

Fang v. USCIS—immigration—vacating—McKee

Much as there is no North Orange, there is also no University of Northern New Jersey. Apparently, DHS created a fake university in order to catch brokers of fraudulent F1 student visas, but managed to ensnare plenty of actual students as well. The plaintiff students were informed by DHS, by letter, that their valid F-1 status had been terminated due to their “fraudulent enrollment” in the fake school. They sued, but the District Court dismissed under 12(b)(1), determining that there had been no final agency action and also that the case was not ripe.

Writing for the Court, and expressing a great deal of displeasure with what appears to have been the government’s shifting position on the students’ culpability, Judge McKee disagrees. Under the APA, the order terminating the visas was final, and thus subject to federal court challenge, because 1) “there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated” (or even a clear way to do so), and 2) removal proceedings at which the plaintiffs could challenge the visa revocation might not ever happen, and the plaintiffs could not actually raise such a challenge in removal proceedings. Judge McKee elevates the second part of this discussion to an independent holding: “We therefore hold that removal proceedings cannot serve as an opportunity to review the USCIS’s denial of reinstatement because neither immigration judges nor the BIA have jurisdiction to review those decisions.” With regard to ripeness, Judge McKee applies the Circuit’s ripeness test and concludes that all factors are satisfied.

(Judge McKee observes, in footnote 100, that the agency might not have had statutory authority to cancel the visas in the first place.)

Joining Judge McKee were Judge Restrepo and Judge Fuentes. The original District Judge was Judge Linares, who has since retired; I’m curious to see who picks this up on remand.

Ira Kurzban of Kurzban, Kurzban, Tetzeli and Pratt argued for the students. Joshua Press argued for the government.

Three of a Perfect Pair [guest post]

This is a guest post by David Goodwin.

In re. Various and Sundry § 2244(b) Applications—§924(c)(3) residual clause—granting—Greenaway

In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that 18 U.S.C. §924(c)(3)(B) is unconstitutionally vague, the latest in a line of decisions invalidating “crime of violence” residual clauses. Decided while these applications to file second or successive § 2255 motions were pending,  Davis essentially answered the question posed by each; while the government continued to oppose aspects of some individual applications, Judge Greenaway’s short opinion for the court observes that they all involve merits inquiries and can be addressed by the relevant District Courts.

(I know of at least one person whose head will explode at the references to § 2255 motions as habeas petitions…)

Joining Judge Greenaway were Judge Ambro and Judge Chagares. Arguing were Arianna Freeman for the applicants and former Cowen clerk Steve Sanders (back in the appeals division!) for the government.

Mammana v. BOP—prison conditions/8th amendment—vacating—Fuentes

Former federal prisoner Anthony Mammana alleged that, while in disciplinary segregation, he was placed for four days in the ominously named “Yellow Room”: a chilled room with constant lighting, no toilet paper, no bedding and an extremely thin mattress, and only paper-like clothing. He claimed that these conditions of confinement violated the Eighth Amendment. The District Court dismissed, deeming these conditions “uncomfortable,” but not unconstitutional.

Writing for the Court, Judge Fuentes vacates and remands under the standard of Farmer v. Brennan, 511 U.S. 825 (1994); although since Mammana had pleaded that the defendants were aware of what was happening, the “sole issue” on appeal was whether the deprivation was sufficiently serious. Although individual conditions may not themselves amount to a deprivation, “mutually enforcing” conditions can add up to a deprivation. Here, Mammana had adequately alleged individual deficiencies that added up to a plausible deprivation of “the minimal civilized measure of life’s necessities,” such as warmth and sufficient sleep. His Eighth Amendment claim should have been allowed to proceed.

A curiosity: according to the opinion, the Magistrate Judge recommended that this part of Mammana’s complaint (I think?) be allowed to go forward. While Mammana lodged objections, the government did not. Nevertheless, the District Court appears to have reviewed the Report and Recommendation de novo anyway, knocking out the “only claim currently surviving.” (In the Third Circuit, the District Court’s decision to review de novo despite a failure to object can set up a blank slate for appeal, which appears to have happened here.)

Joining Judge Fuentes were Judge Shwartz and Judge Krause. The case was decided without oral argument. Matthew B. Weisberg of Weisberg Law and Gary Schafkopf of Schafkopf & Burgess are listed as Mammana’s counsel. AUSA D. Brian Simpson represented the government defendants.

Golden v. NJIT—attorney fees—reversing—C.J. Smith

The plaintiffs in this case submitted records requests to the New Jersey Institute of Technology (“NJIT”) under a state law authorizing them to do so. (The law in question gets abbreviated as “OPRA,” which I will not use because it conjures the fanciful mental image of Ms. Winfrey personally ordering the disclosure of public records and having opinions about fees.) Some of the requests implicated documents originating with the FBI, which refused to allow their disclosure. But once litigation began, however, the FBI and NJIT reversed course and produced many additional records. “A-ha!” crowed the plaintiffs. “This New Jersey state law is a fee-shifting statute, and so we can now go after you for attorney’s fees, you fools!” But the District Court shook its head. “Not so fast, you Pulitzer-winning putzes. The defendants acted reasonably and no nexus existed between your lawsuit and the disclosure. No fees!”

Writing for the Court, Chief Judge Smith frowns upon this conclusion. Under the “catalyst” theory, which the NJ Supreme Court follows, plaintiffs can recover if there’s a “factual causal nexus” between the litigation and the relief ultimately received (even if not actually ordered by the court) if the relief had a “basis in law.” Here, there was a causal nexus, and NJIT’s reliance on the FBI’s directives does not change its status as the relevant custodian. With regard to reasonableness, Judge Smith does not think the relied-upon NJ Supreme Court decision supports NJIT’s position; “the ‘reasonableness’ language in [the decision] refers to the reasonableness of an agency’s efforts to comply with a document request before a lawsuit is filed—not whether the proffered basis for denying access is reasonable.” Thus, the plaintiffs were entitled to fees, and the Circuit remands back to the District Court to decide dollars and cents.

There’s a bunch of fascinating stuff going on here, including a threshold jurisdictional holding about federal officer removal under 28 U.S.C. §1442(a)(1), which comes up far less often than you’d expect. The FBI removed the case to federal court as a third party, but did so in a “facially inadequate” notice that failed to enumerate the required conditions for removal. Chief Judge Smith concludes that all four are, in fact, satisfied; the most interesting factor, in my view, is a proposed federal defense that the relevant records were not subject to the state law of disclosure (rathe than, say, FOIA). Also, in footnote 13, the Court appears to join the Fifth and Eighth Circuits (among others, possibly; it’s a see, e.g. cite) to hold that third-party defendants can remove under the federal officer statute.

Joining the Chief were Judge Chagares and Judge Greenaway.

Katie Townsend of the Reporters Committee for Freedom of the Press argued for the appellants, and Gary Potters of Potters & Della Pietra is listed as counsel for the appellees; I guess the FBI wasn’t actually participating despite appearing on the caption (it didn’t have to pay).


A new opinion on the Dormant Commerce Clause and right to interstate travel [guess post]

This is a guest post by David Goodwin.

Owner Operator Independent Drivers Association v. Pennsylvania Turnpike Commission—Dormant Commerce Clause (!)/right to travel (!!)—affirming—Shwartz 

The Pennsylvania Turnpike is, apparently, really expensive—Verrazzano Bridge levels of expensiveand has gotten more so in recent years. No less an authority than Pennsylvania’s Auditor General has sounded the alarm. Intriguingly, the revenue actually collected exceeds what is needed to run the Turnpike, and is distributed to four different state programs—projects that, as will become important momentarily, are authorized by the federal Intermodal Surface Transportation Efficiency Act of 1991 (we’ll call this “the Act”).

The plaintiffs sued, alleging violations of the Dormant Commerce Clause and the constitutional right to interstate travel. The District Court dismissed, and the Third Circuit affirms.

Under the Dormant Commerce Clause, states may not discriminate against or unduly burden interstate commerce. Writing for the Court, Judge Shwartz observes that Congress may authorize states to take actions that burden interstate commerce, at which point the Dormant Commerce Clause doesn’t apply at all. Here, the Act, which is excerpted at length, is an expression of Congress’s “unmistakably clear” intent to allow for the use of toll revenues for non-toll projects, which in turn must contemplate that toll revenues can exceed the operating costs of the toll road. A failure to comply with annual certification requirements of the Act did not bring the defendants’ actions outside of the authorization or within the scope of a Dormant Commerce Clause challenge.

With regard to the right to interstate travel, Judge Shwartz holds that simply making one mode of travel less attractive or more burdensome does not implicate the right. That some may switch from toll roads to non-toll roads, in other words, does not rise to the level of impermissible deterrence.

(Because I am compelled to do so, I note that the font size changes suddenly for a single paragraph at the bottom of page 19, before popping back up to regular size at the end of the affected paragraph. A contribution from another panelist, perhaps?)

Joining Judge Shwartz were Judge Krause and Judge Fuentes. Paul D. Cullen, Sr.  of The Cullen Law Firm argued for the appellants (Junior was also on the brief). Duane Morris’s Robert L. Byer, a former Pennsylvania judge and founding member of the Third Circuit Bar Association, and Schnader’s Bruce P. Merenstein, a former Becker clerk, argued for the appeellees.  The Miguel Estrada filed one of the amicus briefs.


Five (!) new opinions, plus some housekeeping [guest post]

This is a guest post by David Goodwin.

Due to a briefing deadline, today’s summaries will be mercifully short. [ETA: In retrospect, this effort failed.]

First, though, some quick housekeeping: on Friday, the Court issued its formal remand in Knick v. Township of Scott, which the Supreme Court reversed in a 5-4 decision back in January. At issue was whether a Takings Claim can only be brought after a plaintiff has sought compensation under state law in state court. In his opinion, Chief Justice Roberts answered “no,” overruling the case the Third Circuit had relied on to the contrary. However, as Chief Judge Smith observes in his judgment order, the Court’s opinion “stands with respect to the Fourth Amendment claim.”

Without further ado, we address the fast five. Apologies for any typos.

Bastardo-Vale v. Att’y Gen.—immigration (particularly serious crimes)—denying petition—Shwartz (en banc)

An alien convicted of a “particularly serious crime” cannot obtain asylum or withholding of removal. In Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), the Circuit (Judge Ambro writing, with Judge Becker and a district judge joining) held that particularly serious crimes were limited to aggravated felonies. Today, the en banc Court overrules Alaka to hold that “particularly serious crime” means the same thing with regard to both asylum and withholding of removal and is not limited to just aggravated felonies. Rather, the Attorney General has the authority to designate certain offenses as per se serious and can also adjudicate crimes as serious on a case-by-case basis.

I imagine Stephen Miller will get right on declaring all crimes to be “particularly serious.”

Judge Shwartz’s opinion for the Court, apparently joined by everyone save Judges McKee and Ambro, engages in a lengthy statutory analysis, and includes a 3-page-long footnote responding to an argument raised in Judge McKee’s dissent. Intriguingly, Judge Shwartz also castigates the Board of Immigration Appeals, which elected to ignore Alaka entirely in favor of the Board’s own precedent, an act Judge Shwartz characterizes as a “blatant disregard of” binding precedent.

Judge McKee and Judge Ambro (the Alaka author) both dissent, writing separately but substantially joining each other’s opinions. In a classic demonstration of the Third Circuit’s emphasis on collegiality, both dissenting Judges praise Judge Shwartz’s opinion for the Court.

Cherylle Corpuz argued for petitioner Bastardo-Vale, Benjamin Moss argued for the government, and Joseph C. Hohenstein of Landau, Hess, Simon & Choi argued for amicus American Immigration Lawyers Association.

Paul Shifflett v. Korszniak—Prison Litigation Reform Act exhaustion—vacating and remanding—Ambro

Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust administrative remedies before filing a conditions-of-confinement lawsuit. In his opinion for the Court, Judge Ambro makes official what a prior opinion, Robinson v. Superintendent Rockview SCI, 831 F.3d 148 (3d Cir. 2016) (Hardiman, J.) “strongly implied”: a prisoner’s remedies are exhausted (or, more precisely, the administrative process becomes “unavailable”) as soon as the prison fails to respond to a properly submitted grievance in a timely fashion, because the PLRA requires “strict compliance” by prisoners and prisons alike. Thus, the plaintiff’s remedies were exhausted as soon as the prison missed the grievance-policy response deadlines, and so the District Court erred in dismissing his complaint for nonexhaustion. Judge Ambro also directs the District Court, on remand, to appoint counsel for Shifflett.

Joining Judge Ambro were Judges Greenaway and Scirica. The Yale Law School Appellate Litigation Project represented Shifflett on appeal, with Elise Wander arguing three days after commencement. Chase Defelice argued for the Department of Corrections. Argued for individual appellees were Emily B. Ryan-Fiore of Weber Gallagher Simpson Stapleton First & Newby, Carol A. VanderWoude of Marshall Dennehey Warner Coleman & Goggin, and Ava M. Plakins of Bonner Kiernan Trebach & Crociata.

Donna Dinaples v. MRS BPO—Fair Debt Collection Practices Act—affirming—Chagares

The Third Circuit had previously held in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014) (Scirica, J.), that a debt collector violates the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692f(8), by sending a collection letter displaying the debtor’s internal account number on the envelope. Does the same rule apply when the envelope doesn’t show the account number itself, but instead contains an unencrypted QR code that can be scanned to reveal the number? The District Court said yes, and Judge Chagares’s opinion for the Court agrees, applying the reasoning of Douglass and giving the FDCPA the requisite broad construction.

As a threshold issue, the Court also holds that the plaintiff had standing under Spokeo and its Circuit progeny, because the implication of “core privacy concerns” is enough to show a concrete injury. The Court also holds that the collector cannot claim a “bona fide error” defense, which does not apply to mistakes of law, but rather to clerical or other errors.

(If you, like me, were momentarily confused by the appellee: MRS BPO is a debt collection company, and not a person named Mrs. Bpo.)

Joining Judge Chagares were Chief Judge Smith and Judge Greenaway. Michael D. Alltmont of Sessions Fishman Nathan & Israel argued for MRS BPO and Yitzchak Zelman of Marcus and Zelman argued for the prevailing appellee.

Dexter Hillocks v. Att’y Gen.—Immigration (categorical approach)—granting petition and remanding—Fuentes

In determining whether convictions fall into categories that bar certain immigration relief (or lead, for that matter, to enhanced sentences under the Armed Career Criminal Act), courts are supposed to use the “categorical approach,” which looks to the essential elements of the conviction and disregards the actual facts of the conviction. For divisible statutes having multiple elemental paths, however, courts can use the “modified categorical approach,” peeking at the facts of the conviction to decide which path was taken.

The whole area is . . . somewhat complicated, and this case amply demonstrates why. The petitioner, Dexter Hillocks, had been convicted of using a communication facility (a phone) to facilitate a felony. The statute says:

A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under [35 P.S. § 780-101 et seq.], known as The Controlled Substance, Drug, Device and Cosmetic Act. 

Is this Pennsylvania offense an “aggravated felony” or “conviction relating to a controlled substance?” The agency, employing the modified categorical approach, looked at the plea colloquy, determined that Hillocks used the phone to facilitate the sale of heroin, and said “yep!”

Judge Fuentes agrees that the categorical approach, and not the modified categorical approach, was warranted here. Both possible paths to conviction, through the Pennsylvania Criminal Code and the Controlled Substance Act, did not amount to a categorical match to a federal felony that would fall under either definition, in part because an offender could “facilitate” basically anything, including any non-aggravated felony. Thus, “[b]ecause the Government ha[d] not identified divisible categories, at least one of which would match a generic federal aggravated felony,” the modified categorical approach was not appropriate.

With regard to whether this was a “conviction relating to a controlled substance,” Judge Fuentes observed that his prior en banc opinion in Rojas v. Att’y Gen, 728 F.3d 203 (3d Cir. 2013), had established that the categorical approach did not apply in “related to” controlled substance analysis for state convictions. But in an intervening case, Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the Supreme Court had used the categorical approach in these circumstances. Judge Fuentes holds that Mellouli partially abrogated Rojas, that the categorical approach should be used, and that, for substantially the same reasons the conviction was not an aggravated felony, the conviction also did not “relate to” a controlled substance.

Joining Judge Fuentes were Judge Ambro and Judge Bibas. Former Fisher clerk M. Patrick Yingling of Reed Smith argued for Hillocks and Gregory Pennington argued for the government.

United States ex rel. Charte v. American Tutor—False Claims Act/Entire Controversy Doctrine—vacating and remanding—Fuentes

Jean Charte sued her former employers twice, first in New Jersey state court and second as a relator under the federal False Claims Act (“FCA”). While the FCA was under seal pending the government’s decision to intervene, the state-court action was settled. The question: does New Jersey’s “entire controversy doctrine,” a res-judicata-on-steroids requirement that all claims relating to an underlying controversy be resolved in a single proceeding, require the dismissal of the FCA action given the settlement of the state-court action?

In his opinion for the Court, Judge Fuentes says it does not. First, FCA qui tam claims belong to the government, not the individual relator, so it would be unfair to give Charte the ability to essentially settle out the government’s claims during the pendency of the FCA proceeding. Second, that FCA actions are filed under seal meant that Charte couldn’t inform the defendant of the under-seal portion of the controversy (Judge Fuentes observes that Charte nevertheless tried to “litigate this case out in the open”). Third, as a matter of fairness, a contrary holding would allow potential FCA defendants to “smoke out” relators by suing them and settling with them, thereby barring qui tam suits, an outcome equity could not abide. Finally, while Charte could have brought the FCA claim as a state-court counterclaim, she did not have to do so, and it would have been filed under seal anyway.

(Based on the citations, that federal FCA claims can be brought in state court appears to be a partly novel holding, although the Second Circuit has also held that 3732(a) is nonjurisdictional in United States ex rel. Thistlewaite v. Dowty Woodville Polymer Ltd., 110 F.3d 861 (2d Cir. 1997)).

Judge Ambro joined Judge Fuentes’s opinion. Judge Hardiman dissented on the basis that fairness cut against Charte, as the District Court had found that Charte engaged in gamesmanship, and had never alerted the state court about the qui tam proceeding.

Sean F. Byrnes of Byrnes O’Hern & Heugle argued for Charte, while Michael F. Bevacqua, Jr. of Mandelbaum Salsburg argued for American Tutor.


Three new opinions: disability rights in prison, establishment clause echoes, and habeas [guest post]

This is a guest post by David Goodwin.

Robert Furgess v. Pennsylvania DOC—ADA/§ 504—vacating—Roth

Robert Furgess, a Pennsylvania prisoner, suffers from a serious neuromuscular disorder. When he was transferred to the prison’s Restrictive Housing Unit, he was no longer provided with accessible showers, and was not able to shower for months. When the prison finally cobbled together a makeshift replacement, Furgess injured himself and has since been confined to a wheelchair.

Under the ADA and § 504 of the Rehabilitation Act, a person may not be prevented from participating in a program, service, or activity, or otherwise be subject to discrimination, by reason of his disability. So is a prison shower a program, service, or activity? And even if it was, did the prison deprive Furgess of access to it “by reason of” his disability?

Writing for the Court, Judge Roth answers both of these questions in the affirmative.

First, case law and administrative guidance make plain that the “program, service, or activity” label is to be construed broadly, and Judge Roth distinguishes a relied-on Seventh Case that could be read to narrow the scope of the statute. Requests for accessible showers, Judge Roth concludes, “are requests for reasonable accommodations so that inmates with disabilities can take a shower—just like able-bodied inmates.”

Second, although the prison argued that Furgess lost access to the shower because of his transfer to the RHU, Judge Roth reads his complaint as alleging that the actual causal factor was his disability itself, not the transfer. Besides, “a prisoner’s misconduct does not strip him of his right to reasonable accommodations.” And Furgess had otherwise adequately alleged deliberate indifference, as his complaint recited the myriad occasions where Corrections officials had been alerted to, yet failed to address, his request for an accessible shower.

(A small point of curiosity: the opinion recites a short pre-Twombly version of the 12(b)(6) boilerplate, although the Court has held that this particular formulation survived Twombly/Iqbal.)

Joining Judge Roth were Judges Jordan and Krause. John F. Mizner of the Mizner Law Firm argued for Furgess, and Kemal Mericli in the AG’s office argued for the Commonwealth.

Freedom from Religion Foundation v. Lehigh County—Establishment Clause—affirming—Hardiman

For almost 75 years, the official seal of Lehigh County, Pennsylvania has included a Latin cross surrounded by nearly a dozen secular symbols of historical, patriotic, cultural, and economic significance to the community.” This is an Establishment Clause challenge, and those particular facts should sound more than a little like the facts from American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019). As that challenge failed, it should not surprise that this one does, too.

As Judge Hardiman explains, American Legion clarified that the much-unloved three-prong Lemon test does not apply to certain longstanding symbols, which instead enjoy a presumption of constitutionality. Freedom from Religion had not adequately shown that the presumption of constitutionality did not apply, and then failed to rebut the presumption. While the Court does not dismiss on standing grounds, Judge Hardiman’s opinion appears to invite an en banc (or Supreme Court) challenge to Establishment Clause “offended bystander” standing.

Joining Judge Hardiman are Judges Krause and Bibas. Marcus B. Schneider of Steele Schneider argued for the appellants; I checked, and Pierce Brosnan has never played a character named Steele Schneider, although there’s still time. Eric Baxter of the Becket Fund argued for Lehigh County. There were many amicus briefs filed.

Steven Romansky v. Superintendent Greene SCI—state habeas—affirming—Ambro

This case, described as a “procedural quagmire,” encompasses trials, retrials, and various applications for state collateral relief, all culminating in a federal habeas petition. What follows is a gross oversimplification.

The main claim before the Court is that, during his 1987 trial, Romansky was tried for a crime different from the one actually charged. But Romansky did not file his federal habeas petition until 11 years after the time to do so apparently expired, and so his claim would appear to be time-barred. Romansky argued that a 2000 retrial “reset” the habeas timeline under Magwood v. Patterson, 561 U.S. 320 (2010), which held that a resentencing results in a new judgment and, thus, that a subsequent habeas petition cannot be “second or successive” for at least certain challenges to that new judgment.

Complicating Romansky’s Magwood argument, however, is the fact that the challenge he now raises derives from his 1987 trial, not the retrial on other counts that had been vacated. And on these facts, Judge Ambro concludes, the habeas timeline was not restarted by the revised partial judgment entered in connection with the retrial. Judge Ambro acknowledges that the outcome might be different in jurisdictions following a “sentencing package” doctrine, where even a partial vacatur results in an entirely new sentence on everything, but “the Pennsylvania counts [sic? I think this should be “courts”] imposed separate sentences for each count and conducted only a ‘limited’ resentencing after the retrial.” As a result, Romansky’s main claim is time-barred.

Romansky also argued that his 2000 retrial counsel was ineffective for failing to raise a certain defect (apparently conceded by the Commonwealth to be an actual defect, on which he never received relief) with his 1987 trial despite repeated requests. This claim, while timely, fails on the merits; Judge Ambro holds that 2000 counsel had no obligation to raise claims affecting counts not before the court in the 2000 retrial, and that Romansky could not bring an federal constitutional ineffectiveness claim based on 2000 counsel’s failure to file a PCRA petition or other collateral attack. Whew.

Judge Ambro declines to expand the certificate of appealability to reach additional claims. Of note, one of them alleged that Pennsylvania, in deciding to adopt a grand jury system, was essentially bound by Supreme Court precedent on federal grand juries, even though the constitutional grand-jury requirement has not been incorporated to the states. The Court rejects this “creative” argument.

Joining Judge Ambro were Chief Judge Smith and Judge Restrepo. Ronnie J. Fischer of Bugaj Fischer argued for Romansky, and James P. Baker of the A.G.’s office argued for the Commonwealth.

Four new opinions, including a debut [guest post]

This is a guest post by David Goodwin.

It’s a veritable law of nature, as regular and predictable as the sun rising each day. You’re at a cocktail party, chatting away, and you mention the name “Judge Anthony Scirica.” Always the same response: “Oh!  General Electric Credit Corporation v. Nardulli & Sons!” Or maybe, during your weekly North Bowl league, someone spies retired Judge Timothy Lewis a few lanes down, leans over, and whispers, “Look over there! Mr.  Geisinger Health Plan v. Commissioner himself . . .  whoah, 215?” And who can forget learning in law school about “the legendary Learned Hand, author of  Metropolitan Trust Co. v. McKinnon?”*

Among today’s opinions is a similar debut. Without further ado . . .

United States v. Ronald Damon—Criminal Law (scope of appeal waivers)—affirming—Matey

When Ronald Damon pleaded guilty, he signed a waiver of his rights to file any appeal, collateral attack, writ, or motion challenging” a within- or below-Guidelines “sentence imposed by” the court. The issue: in this context, does a request for early termination of a period of supervised release, brought under 18 U.S.C. 3583(e)(1),  fall within the scope of the waiver? The District Court thought the answer was “yes,” and enforced the waiver to bar Damon’s challenge.

Writing for the Court, Judge Matey agrees. “Sentence,” Judge Matey holds, refers to “all penalties” imposed on Damon, and therefore must extend to his term of supervised release. And while Damon had argued that he was not challenging his sentence in the manner contemplated by the plea agreement, Judge Matey sees this as a distinction without a difference: a request for a modification seeks also to challenge the underlying sentence. Both parts of the analysis, I note, rely heavily on dictionary definitions.

While this decision arrives in the context of supervised release, it may plausibly extend to the more-common 3582(c)(2) discretionary sentencing challenges, too. Whether 3582(c)(2) motions fall under the ambit of broad appeal waivers is, I think, still an open question in the Circuit;  Damon may shut that door.

Joining Judge Matey were Judges Jordan and Bibas. Federal Defender Julie McGrain argued for Damon and AUSA John Romano argued for the government.

Nicholas Bergamatto v. Board of Trustees of the NYSA-ILA Pension Fund—ERISA—affirming—Jordan

This complex ERISA appeal has, as its core, two main issues: 1) was the plaintiff entitled to more benefits from his plan than he received, and 2) does the Third Circuit recognize a “de facto administrator” theory, where a plan participant sues not the plan’s actual administrator, but an entity that is alleged to function as the administrator, under a statute penalizing the late provision of plan information?

On the first point, Judge Jordan rules that the deferential standard applicable to ERISA review—”arbitrary and capricious/abuse of discretion” when, as here, the plan administrator exercises discretionary authority—dooms the plaintiff’s claims. The plan language was not ambiguous, and the administrator’s decision aligned with that language.

On the second point, Judge Jordan’s opinion for the Court makes plain that the Circuit does not recognize a de-facto plan administrator theory. The plaintiff sued the Executive Director of the plan, arguing he was a “de facto” administrator and thus subject to suit under 29 U.S.C. § 1132(a)(1)(A), which is explicitly limited by § 1132(c)(1) to “administrators” who fail to comply with requests for information. As Judge Jordan notes, most other Courts of Appeals, save the 11th and 1st Circuits, have rejected the idea that someone can be liable to suit as an administrator despite not being an administrator under ERISA, and both the plain language of the statute and relevant Third Circuit precedent cut against the de facto administrator theory. “In short,” Judge Jordan writes, “we must restrict application of the title ‘administrator’ to those who fit the statutory definition and not stretch the term to authorize penalties against others whom a disappointed plan participant might like to reach.”

Joining Judge Jordan were Chief Judge Smith and Judge Matey. The case was submitted without oral argument.

Abdul Jaludi v. Citigroup—arbitration/Sarbanes-Oxley/contracts—partial reversal—C.J. Smith

Jaludi, a former Citigroup worker, allegedly blew the whistle and was laid off for his troubles. He sued under RICO (apologies to Ken White) and Sarbanes-Oxley. Citigroup moved to compel arbitration, relying on a 2009 employee Handbook with expansive arbitration clauses that explicitly encompassed Sarbanes-Oxley claims, even though Dodd-Frank amended Sarbanes-Oxley to prohbit pre-dispute agreements to arbitrate whisleblower claims (and which, in turn, led the 2011 Handbook to delete Sarbanes-Oxley from the list of arbitrable claims). The District Court held that arbitration was nevertheless required.

Chief Judge Smith’s opinion for the Court reverses in part. The “in part” here is due to the presence of the RICO claim, which did fall within both Handbooks’ arbitration provisions. Judge Smith otherwise holds that the 2011 Handbook, which eliminated Sarbanes-Oxley from the list of arbitrable claims, superseded the 2009 Handbook. Taking an opportunity to clarify the state of Circuit law on whether there is an agreement to arbitrate, Judge Smith emphasizes: “we make clear today that the question of whether a later agreement supersedes a prior arbitration agreement is tantamount to whether there is an agreement to arbitrate. It is therefore a question to which state law, not federal law, applies.” And, under Pennsylvania law, “the later of two agreements between the same parties as to the same subject matter generally supersedes the prior agreement.”

This is the same panel as the case above, so joining Chief Judge Smith are Judges Jordan and Matey.

Jaludi originally proceeded pro se. Drexel’s Federal Litigation and Appeals Clinic was appointed as pro bono counsel, with recent graduate Sydney Melillo arguing for Jaludi mere days after graduating (and, hopefully, before bar prep got too out of hand). Thomas Linthorst of Morgan Lewis argued for Citigroup.

In re: Google Inc. Cookie Placement Consumer Privacy Litigation—class actions/cy pres awards—vacating—Ambro

This is a sequel to a 2015 decision about Google’s successful manipulation of browser cookie-blocking features—”don’t be evil” indeed. On remand, the parties agreed to a settlement and moved to certify a Fed. R. Civ. P. 23(b)(2) class. The  cy pres settlement, though, didn’t benefit any of the class members, and instead directed Google to cover class counsel’s fees and donate money to data privacy organizations, in exchange for which Google would obtain class-wide release.

The Ted Frank objected to the settlement, arguing that the cy pres money properly belongs to the class as compensation.

Judge Ambro’s opinion for the Court strikes a middle ground: while cy pres settlements may be appropriate for some 23(b)(2) classes, the District Court’s fairness analysis here was not sufficient. As a threshold issue, Judge Ambro concludes that the plaintiffs have standing under In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262, 273–74 (3d Cir. 2016). On the merits, the Court “see[s] no reason why a cy pres-only (b)(2) settlement that satisfies Rule 23’s certification and fairness requirements could not ‘belong’ to the class as a whole, and not to individual class members as monetary compensation.” But although the District Court here ran through the appropriate factors, Judge Ambro was “not persuaded the Court sufficiently assessed the fairness, reasonableness, and adequacy of the settlement,” and particularly the broad class-wide release of money-damages claims and the selection of specific cy pres recipients. The Court remands, warning:

The vista view of this case is not pretty. According to the complaint, an internet behemoth with unprecedented tools for monitoring private conduct told millions of Americans it would not track their personal browser history, and then it did so anyway to profit from the data. Through the proposed class-action settlement, the purported wrongdoer promises to pay a couple million dollars to class counsel and make a cy pres contribution to organizations it was already donating to otherwise (at least one of which has an affiliation with class counsel). By seeking certification under Rule 23(b)(2), the defendant and class counsel avoid the additional safeguards that apply to Rule 23(b)(3) actions. One might think this would leave room for class members to pursue damages individually; yet that relief is foreclosed as well, as the settlement contains a nationwide release of claims for money damages that arose or could arise were there unauthorized snooping, presumably covering tens if not hundreds of millions of Americans. In this context, we believe the District Court’s factfinding and legal analysis were insufficient for us to review its order certifying the class and approving the fairness, reasonableness, and adequacy of the settlement.

Joining Judge Ambro were Judge Krause and Judge Rendell. Enthusiasts of PDF-creation intrigue—I mean,  who isn’t these days?—will note that this opinion, alone of the 4, does not hyperlink footnote calls to the actual corresponding footnotes.

The Ted Frank of the Competitive Enterprise Institute argued for the appellants. Brian R. Strange of Strange & Butler and Anthony Weibell of Wilson Sonsini argued for the appellees. Oramel Skinner of the Arizona AG’s office argued on behalf of a grab-bag of amicus appellant states.

*: Yes, yes, I know, this is an opinion he issued as a District Judge sitting by designation. It was legitimately hard to tell which opinion was his first for the Second Circuit proper, as Court did not distinguish between its two Hands for quite some time.



New Decision: Applying McDonnell on 2241 Review [guest post]

This is a guest post by David Goodwin.

Robert Cordaro v. United States—Criminal Law (corruption/habeas)—affirming—Chagares

Robert Cordaro, a former Lackawanna County commissioner, allegedly wasted no time using his office for private financial gain, chiefly by influencing the awarding of contracts. Classic! He was convicted of bribery, Hobbs Act extortion, and racketeering. After the Third Circuit affirmed his conviction, Cordaro unsuccessfully challenged it via 28 U.S.C. § 2255.

But then the Supreme Court decided McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of “official act”—a development, Cordaro claimed, that rendered his conduct non-criminal. He initially tried to file a second 2255 motion, but his application was denied. So instead, Cordaro filed an actual federal  habeas corpus petition under 28 U.S.C. § 2241, which he could do only if 2255 was inadequate or ineffective to test the legality of his detentionthe “Dorsainvil” exception, which applies when subsequent statutory developments have rendered a person’s underlying conduct non-criminal. The District Court agreed with Cordaro that he was entitled to take advantage of the Dorsainvil exception, but denied his petition on the merits, concluding that he had failed to show that no reasonable juror would have convicted him if properly instructed under McDonnell.

The Third Circuit affirms. First, Judge Chagares holds that the Dorsainvil exception was proper here, as a retroactive application of McDonnell could conceivably render Cordaro’s conduct non-criminal (but see more below).

Second, Judge Chagares agrees with the District Court that, even under McDonnell, Cordaro had failed to show his conduct was non-criminal. Cordaro used his influence in the awarding and maintenance of contracts, specifically agreed to act on the contracts in question, and apparently received direct payments from some of the contractors. “Taking this evidence together,” Judge Chagares writes, “would some reasonable juror conclude that Cordaro committed official acts as defined by McDonnell? The answer is yes.” To Cordaro’s point that the various firms contracted with independent agencies, not the county itself, Judge Chagares concludes that the flow of authority makes no difference. “[W]hatever the chain of technical legal authority . . . there is ample evidence that Cordaro agreed to, could, and did influence who kept and lost contracts with county entities.” Judge Chagares likens this aspect of the case to the Court’s recent decision in United States v. Repak, where the appellant had argued, unsuccessfully, that making recommendations about contracts was different than directly acting on them.

At least one aspect of Cordaro’s argument appears to have been affected by the constricted procedural posture: he argued that erroneous jury instructions could have led the jury to convict him for the noncriminal meetings, as opposed to the influencing of contracts. Since this isn’t a direct appeal, but is instead a collateral attack under 2241, the standard is what a properly instructed jury would do under McDonnell, not what the actual jury in the case actually did.

Finally, the Court defers decision on several open questions:

  • Whether 2255(e), the safety valve that allows for the Dorsainvil exception to function, is a jurisdictional restriction that affects whether the District Court can entertain a 2241 petition on the merits from a federal prisoner.
  • Whether McDonnell applies retroactively on collateral review at all (the government conceded that it did, but its concession does not actually govern, and the Court says only that McDonnell “arguably satisfies” the retroactivity test).
  • Whether the “official acts” holding of McDonnell applies to Hobbs Act extortion and racketeering (which neither party questioned) or § 666 bribery (which was contested; the Court assumes it does because the claim fails anyway).

Joining Judge Chagares were Judge Ambro and Judge Greenaway. AUSA Stephen Cerutti argued for the government and Nixon Peabody’s Brian T. Kelly argued for Cordaro.

Presiding judge musing [guest post]

This is a guest post by David Goodwin.

The late Judge Van Antwerpen served on the Third Circuit from 2004 through 2016. He was 62 when elevated, and had been on the Eastern District of Pennsylvania since 1987. Confirmed in May 2004, he took senior status in October 2006, a little under a year and a half later⁠. His was certainly among the shortest active-status tenures on the Third Circuit, and perhaps among the broader Courts of Appeal as a general matter.

Which made me curious about something: had Judge Van Antwerpen ever presided over a panel?

In the Third Circuit (as is the case more generally), when the Chief Judge isn’t present, the presiding judge is the active judge having the most seniority, and there is always at least one active judge per panel (IOP 3.1 & 3.2). During Judge Van Antwerpen’s entire active-status tenure, he was senior to exactly one other judge: Judge Chagares, confirmed April 2006 (Judge Jordan arrived in December 2006, a little too late). April 2006 is cutting it quite close for panel composition, so it would be more likely that Judge Van Antwerpen presided over a panel consisting of himself and two senior judges, or one senior judge and one by-designation judge.

A quick-and-dirty Westlaw search returned 19 opinions where Judge Van Antwerpen was listed first. Except that many of those were either motions panels or pro se merits panels. For instance, he’s first on Eisenstein v. Ebsworth, 148 F. App’x 75 (3d Cir. 2005), with Judge Greenberg and Judge Nygaard, but that panel never actually heard arguments. Ditto with a few non-pro-se cases that were decided on submission (In re Strategic Techs., Inc., 142 F. App’x 562 (3d Cir. 2005)).

My quick search produced only one argued case with Judge Van Antwerpen presiding: United States v. Acorn Tech. Fund, L.P., 429 F.3d 438 (3d Cir. 2005), with Judge Aldisert and Judge Cowen, was argued October 18, 2005. But hey, one is more than none.

So the short answer is: yes, 1.5 years is enough time to end up presiding over an actual, can-hear-oral-argument panel. But just barely.


The Value of Clerking, Part N+1: Learning What Doesn’t Happen [guest post]

This is a guest post by David Goodwin.

Clerkships are a valuable learning experience for new attorneys, and the “why” is often summed up like so: “You get to see how the sausage is made.” That’s absolutely true. Learning how judges make their decisions, or what kind of arguments tend to take wing—these are all helpful skills to have and will stay with you throughout your career.

But also important is learning what doesn’t happen, how courts don’t work, and how judges don’t act. Sausage-making isn’t always The Jungle.

Humans are hard-wired to see patterns, even where none exist. For litigators and parties, this often translates into a need to assign reasons to the litigation process. Why did the judge do X? Why was I asked that question? Or the absolute, undisputed classic: why is everything taking so long? The case—your case, the thing you’ve been laboring over, the star at the center of all constellations—is at the forefront.

Seeking answers is a perfectly normal response. But we also tend to want those answers to have some grounding in substance. The judge asked that question because she was troubled by an issue in the case. The scheduling order was delayed because the panel was divided on whether to grant extra time. My appeal is taking so long to get decided because the issues are deeply complex, or the judges are struggling with the right outcome, or the court is trying to reconcile dangling threads of precedent.

Sometimes these guesses would be correct. Often, though, they are wrong.

One of the valuable lessons instilled through clerkships is that, sometimes, things just happen. Judging is a job. Courts are workplaces like any other. There are thousands of motions and merits decisions flying around. Things take a long time all the time, for no reason at all other than work and triage and (on occasion) someone just absolutely forgetting.

I remember once idly Googling the parties in a case only to find a forum thread dedicated to piecing together the hints and clues on the docket. A judge dropped out between the motions stage and the merits stage; he must have had a conflict! (Actually, you just happened to get a merits panel that included two judges from the motions panel.) These random letters on the word-limit order signal what track the appeal is on! (Actually, those are the case manager’s initials.) The delay between the case being submitted and the decision coming out means something! (It could, but it could also just mean that . . . things are taking a while, or someone’s slow with getting the vote in, or the clerk assigned to the case is also working on a 78-page RMBS opinion and you’re assigned a low priority.)

Realizing that there isn’t always a “substance” reason for the things that courts do is an extremely valuable thing to know. But perhaps even more than the other experiences during a clerkship, it can be a hard thing to retain once you’re back in the real world. The random things that happen begin again to seem significant.

A client asked, a few days ago, why the court was sitting on her appeal.  I had predicted a decision would come out in about 3 to 4 months, but 6 months later and all was crickets and tumbleweeds. She wanted to know: Was it a good sign? A bad sign? We had raised a tricky issue of law at oral argument; maybe we were winning on that point?

I said I didn’t know. It could mean something, but it could also not mean anything. It’s summer. The authoring judge could be on vacation. The clerk assigned to the case could have other work.

I guess we’ll find out when the decision is handed down.

(My suspicion is that the intrigue-to-mundane-reason ratio is a bit higher at the Supreme Court, where each question is thought to be exquisitely targeted and calculated and revealing, and delays through the end of the term often do mean something. But as in most things, the Supreme Court is an outlier, and I wouldn’t be surprised if clerks in that particular marble palace shake their heads at some of the tea-leaf reading that goes on in the media.)

Three new opinions: criminal, copyright, and ERISA [guest post]

This is a guest post by David Goodwin.

It’s August, and to quote Neil Hannon: here comes the flood. Judge Hardiman has all three opinions.

United States v. Porter—Criminal Law (issues abandoned by guilty pleas)—affirming—Hardiman

After the district court denied defendant-appellant Porter’s motion to suppress drugs found in his bag, Porter decided to enter an unconditional plea of guilty. Observing that defense counsel had made noises about wanting to appeal, the district court advised Porter of his appellate rights at sentencing. Porter appealed, and argued that he should be able to attack the district court’s suppression ruling because he had never affirmatively waived his right to do so and because the district court had broadened the scope of appeal rights at sentencing—an apparent attempt to get around the usual rule that suppression rulings cannot be attacked on appeal of unconditional guilty pleas.

In an opinion by Judge Hardiman, the Court disagrees. First, Judge Hardiman performs some doctrinal housekeeping, clarifying that language about how only “jurisdictional” issues survive unconditional pleas is incorrect and the product of label creep; the proper test is whether the issue is “constitutionally relevant” to the conviction. Second, Judge Hardiman observes that there was no “waiver” of appellate rights here (and thus no required intentional relinquishment), but rather something more akin to an automatic forfeiture. Third, the district court’s statements at sentencing did not serve to restore any appellate rights.

Two short comments. First, it is not entirely clear to me whether this decision functionally narrows the scope of claims that survive an unconditional plea or simply preserves the well-established status quo against a novel challenge. Second, I’m surprised that the Court did not resolve the “expanded rights” part of the argument by disentangling the right to appeal from the right to argue certain claims on appeal. But no matter; the Court would have arrived at the same destination.

Joining Judge Hardiman were Judges Cowen and (appropriately) Judge Porter. James Brink argued for the appellant and former Hardiman clerk (and current Pitt adjunct) Ira Karoll argued for the government, in front of his old boss.

Caesars Entertainment Corporation v. International Union of Operating Engineers Local 68 Pension Fund—ERISA/MPPAA—affirming—Hardiman

If you’re anything like me, that caption caused you to recoil, and the subsequent mention of the Multiemployer Pension Plan Amendments Act (MPPAA) to tremble. But 13 pages is a good omen.

This is an appeal by a pension fund from the reversal of an arbitration decision. At issue is a kind of partial pension withdrawal called “bargaining out,” where an employer “permanently ceases to have an obligation to contribute under one or more but fewer than all collective bargaining agreements under which the employer has been obligated to contribute . . . but continues to perform work . . . of the type for which contributions were previously required.” Caesars stopped contributing to an ERISA pension fund at one of its casinos that had closed, but continued doing so for three others. The Fund claimed that Caesars was liable under the “bargaining out” language, and an arbitrator agreed. The district court, however, did not.

Judge Hardiman concludes that the district court got it right. The central issue is whether the statutory language of “work . . . of the type for  which contributions were previously required” includes work of the type for which contributions are still required. He holds that here, “previously” is most properly understood to mean “no longer.”

To get to this point, Judge Hardiman engages in a historical original-public-meaning analysis of the word “previous,” using the “ordinary meaning at the time Congress enacted the relevant provision.” An archaeological dive into genuine historical sources—a dusty copy of Random House, the rare second edition of the Oxford English Dictionary, and the forgotten-to-time Fifth Edition of Black’s Law Dictionary—confirms that the learned congressional scribes used “previous” to mean “occurring before.” And the “largest structured corpus of historical English” backs up that “the word’s most common synonyms in the 1970s–80s were ‘before’ (the synonym used roughly 86% of the time), ‘earlier’ (12%), and ‘formerly’ (1%).” Also, the Pension Benefit Guaranty Corporation had said that “merely ceasing or terminating an operation” shouldn’t trigger withdrawal liability. Against this backdrop, the Fund’s “appeal[s] to purposivism”—an argument that the Court’s holding would defeat the purpose of the statute—are unavailing.

Joining Judge Hardiman were Judge Chagares and sitting-by-designation-MVP Judge Siler. Michael T. Scaraggi of Oransky, Scaraggi & Borg argued for the Fund and James Tysse of Akin Gump argued for Caesars.

Silvertop Associates v. Kangaroo Manufacturing—Copyright—affirming—Hardiman

The Copyright Act does not allow for copyright of certain features of “useful articles.” “But how,” you may ask, “does this apply to the validity of copyright vis-à-vis a full-body banana costume?”

Glad you asked! Rasta Imposta holds a copyright in its full-body banana costume. Appellant Kangaroo Manufacturing makes a full-body banana costume that is very, very similar to Rasta’s (the history of this banana mash is set forth in the opinion). Rasta sued and secured a preliminary injunction. On appeal, Kangaroo argued that Rasta’s copyright was not valid.

Relying on recent Supreme Court precedent, the Court holds that while the banana costume is indeed a “useful article,” its artistic features considered as a whole rendered it capable of independent existence as a copyrighted work. And the fact that a banana design can be “found in nature” did not defeat copyrightability because Rasta’s banana had more than a “minimal level of creativity.” Finally, the copyright doctrines of merger and scenes a faire—essentially, “would allowing copyright here grant a monopoly on banana costumes?”—did not apply because . . . well, there are lots of ways to make banana costumes.

Having tweaked Judge Hardiman’s 1980s originalism analysis in Caesars, I must course-correct by expressing my admiration for how he keeps a straight face in the presence of undeniable whimsy (and a citation to a case actually called Whimsicality, Inc. v. Rubie’s Costume Co.) until the very last moment: Rasta may protect the “veritable fruits of its intellectual labor.” Judge Hardiman, you deserve that one. (Also, there’s a really great Appendix that better show up on the Westlaw copy of the opinion.)

Joining Judge Hardiman were Judge Chagares and E.D. Pa. Judge Goldberg sitting by designation. Alexis Arena of Flaster Greenberg argued for Rasta and David Schrader of Paykin Krieg & Adams argued for Kangaroo.

Midsummer district court confirmations [guest post]

This is a guest post by David Goodwin.

Are those bells I hear? Bells chiming at the top of the Judicial Conference headquarters in Justice City, responding to a signal flare from the Administrative Office Citadel in the Jurisdictagon?

We must have new judges!

Yesterday, the Senate confirmed two new Pennsylvania district judges. One, in E.D. Pa., was originally an Obama nominee: John Milton Younge, who takes Judge McLaughlin’s seat, which opened in 2013. The other, William Stickman IV, was confirmed to W.D. Pa., taking Judge Conti’s seat.

The Judiciary Committee’s nominations page, meanwhile, shows two recent nominees reported out of committee: Stephanie Haines and J. Nicholas Ranjan, both W.D. Pa. They join other pending nominees, including Jennifer Wilson (M.D. Pa. and former Fuentes clerk), awaiting full Senate action. [Correction: Judge Ranjan was confirmed last month.]

While Pennsylvania has seen a few recent confirmations, the same cannot be said for the District of New Jersey, which has six openings dating back to February 2015. As far as I can tell, there are no nominations pending.

(DNJ tragically lost two beloved judges, William Walls and Jerome Simandle, who passed away in July.)

New opinion: The 4th Amendment and Exclusionary Rule in Immigration Proceedings [guest post]

This is a guest post by David Goodwin.

Erick Yoc-Us v. Att’y Gen.—Immigration—Granting Petition—Rendell

Today’s PO addresses the  other major non-DC Circuit area of administrative law: immigration petitions for review. Many immigration cases incorporate elements of criminal law, often with regard to whether certain crimes are deportable offenses.   This one, though, is a variation on the theme, asking whether the exclusionary rule of the Fourth Amendment, which prevents the government from using the fruits of an illegal search or seizure in a criminal prosecution, applies in immigration proceedings when state officials, not federal officials, are responsible for the underlying violation. In an opinion by Judge Rendell, the Court holds that the answer is “yes,” grants the petition, and remands for an evidentiary hearing so that the constitutional claim can be developed further.

Petitioners Yoc-Us and Espantzay were passengers in a van that was pulled over by a Pennsylvania state trooper, ostensibly for speeding. Greatly condensed, the officer allegedly prolonged the stop once he determined that some of the passengers were non-citizens, ordering them to a nearby rest stop and refusing to allow them to leave until ICE arrived.

At the outset of deportation proceedings, the petitioners moved to suppress the evidence of their alienage discovered as part of the traffic stop, arguing that the stop violated their Fourth Amendment rights. The immigration judge (“IJ”) denied the motion without a hearing, ruling that the exclusionary rule was not available because the sovereign that committed the violation—here, Pennsylvania—had nothing to do with the non-criminal deportation proceeding. The IJ also thought that the stop was constitutional. The Board of Immigration Appeals (“BIA”) affirmed, relying on INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), for the proposition that the exclusionary rule is only available in deportation proceedings when there are “egregious Fourth Amendment violations” that are fundamentally unfair. The BIA also agreed with the IJ that there was no prima facie case for suppression, so a hearing was not warranted.

Judge Rendell’s opinion for the Court disagrees with the agency. I will tackle the issues in a slightly different order than presented in the opinion.

First, in the main holding, Judge Rendell concludes that a “partial” exclusionary rule is available in deportation proceedings where state action (as opposed to federal action) is challengedthe “intersovereign” problem noted by the IJ. Relying on the Supreme Court’s post-Lopez-Mendoza “reluctance to have state and local officers engage in enforcement of federal immigration laws,” as expressed in recent decisions such as Arizona v. United States, 567 U.S. 387 (2012), Judge Rendell reasons that the rationale for applying the partial exclusionary rule in instances of federal officer misconduct operates with equal force when state officials have allegedly acted outside the bounds of the Constitution.

The upshot: the exclusionary rule can apply to state conduct when the record shows 1) a constitutional violation that is “fundamentally unfair,” 2) a violation that undermines the reliability of evidence, or 3) a pattern of widespread violations. In so holding, the Court joins the Fourth Circuit, which uses a similar rule.

Second, the record suggested that the petitioners had shown a prima facie violation of the Fourth Amendment because the officer arguably prolonged the stop to contact ICE and investigate their status.

Third, the allegations were egregious enough to warrant an evidentiary hearing, at least, because seizures or arrests based on race or perceived ethnicity can indeed amount to “egregious” violations of the Constitution. “The facts alleged by Petitioners,” Judge Rendell writes,” if supported by evidence, could support the conclusion that the illegal extension of the stop was solely based on race or perceived ethnicity.” Because the full facts of the claim awaited further development, Judge Rendell did not pass on its ultimate merits.

It’s a fascinating decision, although the underlying relief (basically, finding that the denial of the evidentiary hearing was an abuse of discretion) was fairly narrow, and the effect doctrinally appears to be simply extending the Third Circuit’s preexisting federal rule to the state-officer context. Of course, the opinion’s reliance on the Supreme Court’s aversion to state enforcement of federal immigration law sounds an ominous note; the author of Arizona is no longer on the Supreme Court, although Chief Justice Roberts did vote with the Arizona majority.

Joining Judge Rendell were Judges Ambro and Scirica. Joanna J. Cline of Pepper Hamilton argued for the petitioners and OIL’s Dana M. Camilleri for the government.

New opinion: a reversal in favor of the Social Security Administration [guest post]

This is a guest post by David Goodwin.

Russell Hess v. Commissioner of Social Security—Social Security—Reversal—Jordan

Approximately 1,500 federal lawsuits challenging the denial of Social Security or SSI benefits are filed each month. “[N]o other type of appeal from an administrative agency,” two law professors have remarked, “generates anywhere near the volume of litigation for district courts that disability claims do.” Wildly divergent outcomes in the agency yield wildly divergent outcomes across the district courts—even though Social Security cases, like other administrative cases, are ostensibly characterized by deference to the agency’s decision-making.

Today’s decision is about that central tension in the face of a perceived eagerness, on the part of district courts, to deny the agency the deference it is due. In Hess, the claimant lost before the agency, but prevailed in District Court. The government appealed, arguing that the Social Security Administrative Law Judge (“ALJ”) gave “valid” reasons for denying benefits that the District Court had incorrectly overlooked. The Third Circuit agreed and, in a decision by Judge Jordan, reversed with instructions to enter judgment in favor of the government.

The “somewhat complicated question” presented by the government’s appeal is whether the ALJ’s finding that Hess suffered from “moderate difficulties” in concentration, persistence, and pace undermined both a limitation to jobs requiring only simple instructions and questions along those lines to a vocational expert, as part of the complex interplay among the five steps used to determine whether a claimant is disabled. The District Court had thought that Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), required any questions posed to the vocational expert at step five to include the limitations found at previous steps. Not so, Judge Jordan says: “the findings at steps two and three will not necessarily translate to the language used at steps four and five,” even though the statement of limitation does need to reflect the claimant’s particular impairments.

Next, Judge Jordan concludes that a “simple tasks” limitation fairly reflected the finding of moderate difficulties, because the ALJ offered a “valid explanation” for it. Ramirez, Judge Jordan writes, “did not hold that there is any categorical prohibition against using a ‘simple tasks’ limitation” after a finding that a claimant “often” faces concentration, persistence, or pace difficulties. A “valid explanation” satisfies Ramirez‘s requirements.

The final piece of the puzzle is whether the ALJ’s decision was a true “valid explanation.” Central to Judge Jordan’s answer of “yes” are the ALJ’s extensive findings about the extent of Hess’s disabilities, such as the relative weight assigned by the ALJ to various expert reports, which are summarized across several pages of the decision.

Joining Judge Jordan were Judge Roth (whose statement about “magic word” requirements in a 1993 partial concurrence is cited with approval) and Judge Krause. Jordana Cooper argued for the government and Thomas F. Meister of Marzzacco Niven & Associates argued for the claimaint-appellee.

New opinion: Third Circuit approves attachment of U.S.-based assets of Venezuela’s state-owned oil company [guest post]

This is a guest post by David Goodwin.

Crystallex International v. Venezuela—Foreign Sovereign Immunities Act—affirmance—Ambro

In 2011, Venezuela nationalized its gold mines and seized gold deposits belonging to plaintiff Crystallex. Crystallex won an international arbitration award against Venezuela, confirmed its arbitration award in D.C., and set about trying to collect. An attempt to thwart asset transfers to various other entities using Delaware’s Uniform Fraudulent Transfer Act was unsuccessful, but Crystallex also went after the U.S.-based holdings of PDVSA, Venezuela’s state-owned oil company. Arguing that PDVSA was an “alter ego” of Venezuela under the Foreign Sovereign Immunities Act of 1976, Crystallex prevailed below, and today, the Third Circuit affirmed.

Judge Ambro’s opinion for the Court acknowledges the fraught political backdrop, but is anything but tentative; rather, it is a muscular, confident opinion in a very technical area of law. Jurisdictional pitfalls abound, but the primary issue is the proper application of First National City Bank v. Bancec, 462 U.S. 611 (1983), which allows judgment creditors to go after instrumentalities of foreign sovereigns if they are so “extensively controlled” that a principal/agent relationship is created. Judge Ambro summarizes the topline conclusions on pages 13 and 14, and I can do no better than to simply quote them below:

(A) whether the Bancec “alter ego” doctrine determines the District Court’s jurisdiction to attach PDVSA’s assets (it does), (B) the scope of the Bancec inquiry and whether its factors are satisfied here (they are), and (C) whether PDVSA’s shares of PDVH [the holding company for CITGO] are immune from attachment under the Sovereign Immunities Act (they are not).

There are several innovations along the way. For instance, the Court concludes that under 28 U.S.C. § 1963, sovereign immunity exceptions extend to subsequent enforcement actions that arise out of earlier litigation—which is what happened here, in what Judge Ambro terms a “continuation” of the arbitration confirmation proceedings in D.C. district court. And, in particular, Judge Ambro looks to two recent Supreme Court decisions—Republic of Sudan v. Harrison, 139 S. Ct. 1048 (2019), and Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018)—as clarifying application of the Sovereign Immunities Act and the Bancec inquiry. With regard to the latter, Judge Ambro’s opinion applies slightly different factors (from Rubin) than the District Court applied, but comes to the same conclusions. In fact, Judge Ambro writes on page 33 that actual application of Bancec is “straightforward.”

Joining Judge Ambro were Greenaway and Scirica.

The opinion cites extensively from oral argument, and with good reason: it was a four-hour tour de force. Joseph Pizzurro of Curtis Mallet-Prevost Colt & Mosle argued for PDVSA, Gibson Dunn’s Miguel Estrada argued for Crystallex, Arnold & Porter Kaye Scholer’s Kent Yalowitz argued for Venezuela, and Sullivan & Cromwell’s Amanda F. Davidoff argued for amicus appellants Blackrock Financial Management and the delightfully named Contrarian Capital Management. While he didn’t argue, former DNJ U.S. Attorney Paul Fishman was on Venezuela’s brief.

Introductions and a quick recap of Crystallex [guest post]

This is a guest post by David Goodwin.

Howdy! I’m David, and I’m a state appellate public defender in New York. As Matt mentioned last week, I will be taking care of this place while the master is away,* doffing my defender persona and donning my nerd-about-all-things-Third-Circuit guise. (Whether this particular donning and doffing is covered by the Fair Labor Standards Act is, of course, an open question.) I will try to keep up with the oncoming storm of POs, with posts generally appearing in the evening.

As I write, however, the Third Circuit has just released a 45-page opinion in Crystallex International v. Bolivarian Republic of Venezuela, the latest installment in a long-running international dispute that generated another PO back in January 2018. This new decision addresses a question explicitly left open by the prior opinion: whether Petróleos de Venezuela, S.A.  (“PDVSA”) is an “alter ego” of its parent country whose assets could be used to satisfy an arbitration award entered against Venezuela in favor of plaintiff Crystallex, under the Foreign Sovereign Immunities Act and Fed. R. Civ. P. 69(a).

The short answer: on these facts, yes. “Indeed,” Judge Ambro writes, “if the relationship between Venezuela and PDVSA cannot satisfy the Supreme Court’s extensive-control requirement, we know nothing that can.”

I suspect Matt knew this one was coming. Well timed.

Expect a detailed summary later today, along with a roundup of the impressive who’s-who of attorneys who argued the appeal.

*: I originally wrote that I was “pitch hitting” on Matt’s behalf. Alas, I suffer from a rare disorder called athletometaphorophobia: the fear of screwing up casual sports allusions. By extension, Judge Ambro’s page-5 comment about the CITGO sign outside of Fenway Park is met with a smile and a nod, both intended to communicate that I am definitely an in-the-know American who understands sportsball and its enthusiasts.


Third Circuit plans an important courthouse exhibit on judicial independence

The Third Circuit on Thursday posted on its website a 44-page request for quotes for a courthouse lobby exhibit. Now, you might imagine that’s a magical insomnia cure, but you’d be mistaken. The exhibit the court envisions is ambitious and timely—urgent, even—focusing on the subject of judicial independence.

The court’s statement contains a detailed outline of the planned exhibit, and I heartily encourage you to check it out. The exhibit will include quotations old and new, such as this by Alexander Hamilton:

The independence of the judges, once destroyed, the constitution is gone; it is a dead letter, it is a vapor which the breath of faction in a moment may dissipate.

And this by Chief Judge Smith:

[A]s seen in Brown and other decisions, the judiciary can fulfill a role as protector of individual rights when the two political branches fail to do so. Or putting it another way, the outcome of having a system of judicial review is that individual rights are more likely to be protected, especially considering that judges are far more insulated from political pressures than the political branches. This benefit has sometimes been characterized as an independent judiciary protecting against the tyranny of the majority.

The statement highlights several cases from the Third Circuit courts that showed judicial independence. Most of the examples are historical, but it notes, “If a more recent case is included in the exhibit, Judge Ambro’s opinion in Hassan, which is on the surveillance of the Muslim Community in New York City post-September 11, may be a good one to consider using.” (The superlative Hassan opinion is linked here.)

Make no mistake, this isn’t your standard boring civics display. This exhibit will be a significant statement by the Third Circuit, not just to visitors to the courthouse but to the entire nation.

I’ll be gone for a couple weeks, but CA3blog won’t be

My wife—Ms. CA3blog, if you will—was a Peace Corps volunteer in a remote village in Namibia, in southern Africa, years before we met. When we got married, the family she’d lived with sent a representative across the Atlantic to attend our wedding, and this year we’re finally returning the visit. For our family vacation this summer, Ms. CA3blog, our nine-year-old daughter, and I are headed back to the Namibian village where she lived. Ought to be a big adventure.

While away I’ll not be blogging, but panic not: David Goodwin, an eminently worthy replacement, has generously agreed to fill in while I’m gone.  David is a former Third Circuit staff attorney who went on to be a law clerk for D.N.J. Judge Hayden and CA3 Judge Fuentes, and he now works at Appellate Advocates, a non-profit defender office in New York. David is hands-down one of the sharpest Third Circuit followers I know, and I’m honored and grateful that he agreed to do it.

So, goodbye for a couple weeks, and I hope you enjoy David’s posts while I’m gone.


New opinion: Third Circuit rejects argument that immigration law’s stop-time rule applies to character requirement

Mejia-Castanon v. A.G.—immigration—affirmance—Scirica

Dissents in the Third Circuit are rare enough, but dissents authored by non-Third Circuits sitting by designation are rarer still. Once a year, maybe? It happened today in an immigration appeal, where Sixth Circuit Judge Siler (who must be the circuit’s most-frequent sitter-by-designation) dissented.

Immigrants subject to deportation can apply for cancellation of removal if they can show (a) 10 years of continuous physical presence and (b) good moral character. Congress modified the physical presence requirement with the stop-time rule, which says that physical-presence clock stops once the government serves a notice to appear.

The question in today’s appeal was whether the stop-time rule applies to the moral-character requirement, too. If an immigrant’s presence after notice service can’t help him for accruing 10 years, does that mean that bad acts after service can’t hurt him for proving good character? The court held that the stop-time rule does not apply to the moral-character requirement, holding that the relevant statute was ambiguous and applying Chevron deference to the BIA’s interpretation. The dissent disagreed, arguing that the statute wasn’t ambiguous. In my view the dissent’s reading would be less unfair but the majority’s reading is correct, alas.

Joining Scirica was Ambro; Siler CA6 by designation dissented. Arguing counsel were Theodore Murphy of the Murphy Law Firm for the immigrant and Sabatino Leo for the government.


Two new opinions, two interlocutory appeals, and two dissents

Obashi Investment Ltd. v. Tibet Pharma., Inc—civil / securities—reversal—Hardiman

In a rare certified interlocutory appeal, the Third Circuit today held that, as a matter of law, non-voting board observers affiliated with an insurer’s placement agent were not similar to directors for purposes of Section 11 of the Securities Act and therefore were not subject to suit under that provision.

Joining Hardiman was Scirica; Cowen dissented. Arguing counsel were A. Neil Hartzell of Boston and Michael Tremonte of New York for the appellants and Laurence Rosen of the Rosen Law Firm for the appellees.


Tennessee Gas Pipeline Co. v. Permanent Easement for 7.053 Acres—civil—reversal—Greenaway

From the introduction of today’s majority opinion:

On interlocutory appeal, this case now presents us with a single legal issue: whether state law or federal law governs the substantive determination of just compensation in condemnation actions brought by private entities under the [Natural Gas Act]. Because federal law does not supply a rule of decision on this precise issue, we must fill the void with a common law remedy. In doing so, we opt to incorporate state law as the federal standard. Accordingly, we will reverse the District Court’s order reaching the opposite result.

Joining Greenaway was Ambro. Chagares dissented, acknowledging that the “Supreme Court may well agree when it considers this legal issue” and that other courts’ holdings support it but arguing that the contrary outcome was compelled by a 1943 Supreme Court case. Arguing counsel were Elizabeth Witmer of Saul Ewing for the gas company and John Stieh of Levy Stieh for the landowners.

Immigration cases are awful

Radiowala v. A.G.—immigration—affirmance—Greenaway

In an unflinching opinion that reflects the workaday grotesquery of our immigration laws, the Third Circuit today denied a deportation challenge brought by a man who came to America from India fleeing violence 20 years ago, raised a family, built a successful business, and lost it all after a traffic stop.

The Board of Immigration Appeals denied cancellation of removal, ruling that the man met every requirement but one: that removing him would cause sufficient hardship to his family. The BIA accepted that the man’s business was the sole financial support for the entire family, providing food and shelter, college tuition for three kids, and medical care for a fourth in high school. All four of his kids are here legally, two as Dreamers and two as U.S. citizens. But the BIA ruled that eliminating the family’s sole source of rent, tuition, and medical care wasn’t family hardship enough. Its ruling on that score, the Third Circuit held today, in a pained opinion that begins, “We are a nation of immigrants,” was “unreviewable.”

Joining Greenaway were Chagares and Greenberg. The appeal was decided without oral argument.

Peter Phipps is confirmed to the Third Circuit

This afternoon the Senate confirmed Peter Phipps’s nomination to the Third Circuit. The vote was 56 for, 40 against, with Democratic Senators Jones, Manchin, and Sinema joining the Republicans. Judge Phipps will officially join the court, filling the seat previously occupied by Judge Thomas Vanaskie, when he takes his judicial oath and receives his commission.

The Third Circuit will now have its full complement of 14 active judges for the first time since 2013.

New opinion—Third Circuit rules for challengers to Pa. billboard laws

Adams Outdoor Advertising v. Pa. DOT—civil—partial reversal—Ambro

A billboard company challenged Pennsylvania’s laws regulating billboards, alleging that (1) the ban on billboards near exits was (a) vague or (b) a content-based speech restriction barred by First Amendment scrutiny and that (2) the permit process violates the First amendment because there is no time limit for processing permit applications. Today, the Third Circuit affirmed the dismissal of the vagueness challenge, remanded the First Amendment content-based challenge for intermediate-scrutiny review, and affirmed the district court’s ruling that the lack of an application-decision time limit violates the First Amendment.

Joining Ambro were Smith and Restrepo. Arguing counsel were Victor Cavacini of Gross McGinley for the billboard company and Claudia Tesoro for the state.

Four new opinions, including an ACA blockbuster

Commonwealth of Pa. v. President United States of America—civil—affirmance—Shwartz

The Third Circuit on Friday upheld a preliminary injunction blocking the Trump administration’s effort to provide major exemptions to the ACA’s contraceptive-care requirement. Pennsylvania and New Jersey challenged the administration’s attempted action under the Administrative Procedures Act. The Third Circuit held that the states had standing given their costs for state-funded health care resulting from lack of access to contraception. On the merits, the court held that the administration violated the APA by proceeding without notice-and-comment procedures, that its action was neither authorized by the ACA nor required by RFRA, and that the district court did not abuse its discretion by entering a nationwide injunction. Without a doubt this is one of the Third Circuit’s highest profile recent opinions. (And the panel was impressively quick for a major case, issuing the opinion less than two months after oral argument.)

I imagine the government is certain to seek Supreme Court review; it may seek rehearing en banc first, but I’d predict the odds are against it being granted. Stay tuned.

Joining Shwartz were McKee and Fuentes. Arguing counsel were Michael Fischer, chief deputy for impact litigation for the Pa. AG’s office, for the states; Hashim Moopan for the government (who in the linked profile lists his daily habit as reading How Appealing); and Mark Rienzi of the Becket Fund for Religious Liberty for intervenors.


Tilija v. AG—immigration—reversal—Greenaway

The Board of Immigration Appeals improperly denied a Nepali petitioner’s motion to remand his removal proceeding, the Third Circuit held. The BIA failed to accept his new evidence as true, and under the correct standard the man successfully made a prima facie claim for remand.

Joining Greenaway were Shwartz and Bibas. Arguing counsel were Rachel Horton of Schnader Harrison for the petitioner and Andrew Oliveira for the government.


U.S. v. Blunt—criminal—reversal—Restrepo

A husband and wife were convicted of benefits fraud after a joint trial, and on appeal they argued that the district court erred in denying their motions to sever. The Third Circuit agreed, vacating both defendants’ convictions: the husband’s because he was prejudiced by his wife’s otherwise-inadmissible testimony, and the wife’s because she was forced to choose between her privilege against testifying against her spouse and her right to testify in her own defense.

Joining Restrepo were Smith and McKee. Arguing counsel were Jennifer Wilson (whose MDPA nomination is pending before the full Senate) for the wife, former Fisher clerk Quin Sorenson of the MDPA defenders for the husband, and Kim Daniel for the government.


Nkomo v. AG—immigration—affirmance—Hardiman

The Third Circuit rejected an immigration petitioner’s argument that the immigration judged lacked jurisdiction over her removal proceedings because the notice to appear failed to specify the time and place of the hearing. It also rejected her challenges to removal on the merits.

Joining Hardiman were Chagares and Siler CA6 by designation. The appeal was apparently decided without oral argument.

Catching up on the summer opinion tidal wave—part II [updated]

Coba was issued July 8, the other two on July 5.

Coba v. Ford Motor Co.—civil—affirmance—Krause

[Update: in response to a panel-rehearing petition, the court issued an opinion on July 26 revising footnote 10 to remove its assertion that the appellant had mischaracterized evidence and to clarify why the evidence did not support the appellant’s position. The amended opinion is now linked above, the old opinion is here.]

Ford sold vehicles for a decade with gas tanks whose linings flaked off into the gas, and, as you might imagine, that wasn’t a bit good for the vehicles’ fuel filters, injectors, or engines. The plaintiff here sued in New Jersey federal court, alleging various state-law theories. The district court entered summary judgment for Ford, and the Third Circuit affirmed. After confirming that the district court had jurisdiction under CAFA even though it denied class certification before its final ruling, the court upheld summary judgment on all grounds, including that a warranty for defects in materials or workmanship does not cover design defects.

Joining Krause were Jordan and Roth. The case was decided without oral argument.


Spartan Concrete Prods. v. Argos USVI—antitrust—affirmance—Hardiman

Two Virgin Islands concrete companies engaged in a price war. The companies used the same concrete supplier, and that supplier gave a 10% volume discount to the bigger one but not the smaller one. The smaller company sued the supplier, alleging antitrust price discrimination. The district court entered a directed verdict for the supplier, and the Third Circuit affirmed. The court held that the plaintiff failed to show antitrust injury essentially because it failed to show that its inability to win the price war was caused specifically by the 10% discount. The court also upheld the denial of the plaintiff’s belated motion to amend its complaint to add other claims.

Joining Hardiman were Chagares and Restrepo. Arguing counsel were Christopher Kroblin of Kennerhals Ferguson for the plaintiff and Howard Feller of McGuire Woods for the supplier.


U.S. v. Santarelli—habeas—reversal—Restrepo

In a decision that’s notable for habeas lawyers but likely rather impenetrable for everyone else, the Third Circuit held that (1) a petitioner’s amended claims related back to those in her original petition and (2) the petitioner’s motion to raise additional claims that she filed after the district court’s denial was not a successive petition because it was filed before she exhausted all of her appellate remedies from the denial of the initial petition.

Joining Restrepo were McKee and Ambro. Arguing counsel were Connor Baer (formerly of K&L Gates, now clerking for a Third Circuit judge) for the petitioner and Sean Camoni for the government. K&L Gates was appointed by the Third Circuit to represent the petitioner on appeal pro bono.

The summer opinion tidal wave is upon us—recent opinions, part I

It’s July, which means Third Circuit clerkships are wrapping up and the scramble to get opinions out the door is on. Last month was the calm before the storm. This month: the storm. I’m out of town this week and had two deadlines yesterday so I’m sadly behind on my blogging. This is my first of two posts summarizing the recent opinions.

United States v. Payano—criminal—reversal—Krause

This is a significant criminal opinion. The Third Circuit held that a district court’s miscalculation of a defendant’s statutory sentencing range was plain error. The court emphasized the difference between the plain-error “substantially affects” standard for prejudice and a preponderance standard, and it held that the error here met that standard largely due to the prosecution’s reliance on the error in its sentencing arguments. The court rejected the argument that statutory-sentencing-range errors are presumptively prejudicial like Guidlines-range errors are.

Joining Krause were Jordan and Roth. Arguing counsel were former Restrepo clerk Abigail Horn of the EDPA defenders for the defendant and Bernadette McKeon for the government.


GN Netcom v. Plantronics—civil—partial reversal—Fisher

Hard to beat this intro for clarity:

GN Netcom, Inc. filed an antitrust lawsuit against competitor Plantronics, Inc. Plantronics executives deleted emails relevant to the litigation and instructed others to do the same. Many of these emails were unrecoverable, prompting GN to move for default judgment under Federal Rule of Civil Procedure 37. The District Court acted within its discretion when it denied the motion for default judgment, instead instructing the jurors that they were permitted to draw an adverse inference against Plantronics because of the missing emails. However, the District Court committed reversible error when it excluded GN’s expert testimony on the scope of Plantronics’ spoliation. Accordingly, we will affirm in part, reverse in part, and remand for a new trial.

Joining Fisher were Smith in part and McKee; Smith dissented in part, disagreeing that excluding expert testimony on spoliation warranted reversal. Arguing counsel were Elisabeth Theodore of Arnold & Porter for GN and Jon Dean of California for Plantronics.


Forrest v. Parry—civil rights—partial reversal—Greenaway

“Woefully deficient” is how the Third Circuit described the Camden Police Department’s investigation of officer-misconduct complaints, and things only went downhill for the defendants from there. The Third Circuit held that the district court improperly granted summary judgment on some claims, improperly excluded evidence, and issued jury instructions that confused to the relevant law. The core problem was that the district court drew artificial lines between different theories supporting the claims and the evidence supporting them.

Joining Greenaway were Bibas and Fuentes. Arguing counsel were former Fisher clerk Elizabeth Rose of Sullivan & Cromwell for the plaintiff, and Daniel Rybeck and Lilia Londar of Weir & Partners for the defendants.


Simon v. Gov’t Virgin Islands—criminal—partial reversal—Rendell

The Third Circuit reversed the denial of habeas corpus relief on two claims, holding that (1) the petitioner was entitled to an evidentiary hearing on his claim that the prosecution failed to disclose a prior deal with a witness and (2)  he also was entitled to an evidentiary hearing on his ineffective-assistance claim where his trial counsel also represented a co-conspirator.

Joining Rendell were Smith and Jordan. Arguing counsel were Joseph DiRuzzo III of Florida for the petitioner and Su-Layne Walker for the Virgin Islands.

New opinion—Third Circuit holds that one of world’s largest sellers is a “seller”

Oberdorf v.—civil—partial reversal—Roth

Amazon is subject to strict liability for injuries caused by defective products sold by other vendors on its website, the Third Circuit held today.

A woman sued Amazon after a dog collar she bought on Amazon from a third-party vendor broke and the recoiling dog leash left her blind in one eye. Her claims included strict liability, negligence, and failure to warn. Amazon moved for summary judgment on two grounds, both improbable-sounding. First, it argued that it wasn’t a “seller” in sales on its website involving third-party vendors and thus couldn’t be held strictly liable under Pennsylvania product-liability law. Second, it argued that it was a “provider … of an interactive computer service” posting “information provided by another information content provider” (think Craigslist or an online chat room) and thus shielded from liability by the Communications Decency Act. The district court sided with Amazon on both counts.

Today, the Third Circuit largely reversed. It held that (1) under Pennsylvania law, Amazon is a “seller” in third-party-vendor sales from its website, and (2) Amazon is not shielded from liability by the CDA for third-party-sale claims that are based on its “role as an actor in the sales process,” but it is shielded for claims based on its failure to add information such as warnings to vendors’ content.

Joining Roth were Shwartz in full and Scirica in part. Scirica dissented as to strict liability, arguing that “well-settled Pennsylvania products liability law precludes treating Amazon as a ‘seller’ strictly liable” for third-party-vendor claims. Arguing counsel were Eric Miller—formerly of Perkins Coie, now of the Ninth Circuit—for Amazon and David Wilk of Lepley Engelman for the woman.

New opinion: pretrial-release order no barrier to ICE detainer

United States v. Soriano Nunez—criminal / immigration—affirmance—Shwartz

A defendant was indicted for falsely claiming U.S. citizenship and related crimes. The magistrate judge denied the government’s motion for pretrial detention and set conditions for her pretrial release, but ICE blocked her release by lodging a detainer. The defendant moved to dismiss the indictment or release her, and the district court denied both requests. Today, the Third Circuit held that (1) it lacks jurisdiction to hear the motion to dismiss the indictment before judgment, and (2) the criminal-case release order does not foreclose ICE detention.

Joining Shwartz were McKee and Fuentes. Arguing counsel were Robert Zauzmer for the government and Jose Campos of Philadelphia for the defendant.

Three new opinions

E.D. v. Sharkey—civil rights—affirmance—Restrepo

[Disclosure: I helped to author an amicus brief filed on behalf of the ACLU and other groups in support of the immigration detainee, and I assisted the detainee’s able counsel with oral-argument preparation as a moot court judge.]

An employee at the controversial immigrant family detention center in Berks County, Pennsylvania, had sexual contact with a woman being detained there. The woman had fled Honduras with her three year-old child to escape violence and sexual assault. She filed a civil-rights suit alleging that the employee coerced her into giving in to his sexual demands and that the other staffers failed to stop him. The defendants moved for summary judgment, asserting qualified immunity and challenging the merits and municipal liability, and the district court ruled largely in the woman’s favor.

Today, the Third Circuit affirmed the denial of qualified immunity, holding that immigration detainees are entitled to the same due process protections as pretrial detainees, that the right not to be sexually assaulted by a state employee while confined was clearly established, and that the right to be protected by co-workers aware of ongoing assaults also was clearly established. The court observed that the disputed question of consent did not support summary judgment given both Pennsylvania law and ICE policies barring detainee sexual abuse regardless of consent, and the court questioned whether consent will be relevant at trial. Finally, the court denied the county’s appeal for lack of jurisdiction because it challenged municipal liability not qualified immunity.

Chief Judge Smith concurred to express concern about the form of the district court’s order, which (as EDPA opinions often do) set out its reasoning in a single footnote. He observed that, while footnote opinions are not inherently problematic, this one’s failure to identify undisputed facts and its cursory discussion without referring to record evidence fell short of what the Third Circuit requires in qualified immunity cases.

Joining Restrepo were Smith and Fuentes; Smith also concurred. Arguing counsel were Matthew Connell of MacMain Law Group for the appellants and Su Ming Yeh of the Pa. Institutional Law Project for the woman.


TD Bank v. Hill—civil / intellectual property—partial reversal—Krause

A long-running dispute between a bank and its former CEO culminated in a messy copyright squabble over a book the CEO wrote. Parts of his book, it seems, were adopted from a manuscript he’d written when he was still CEO for which the bank held a copyright. The district court rejected the CEO’s defenses on the copyright claims, but it vacated the broad injunction that the district court had entered blocking him from selling the book because no presumption of irreparable harm applied and because the bank had no real plans to publish its manuscript. The opinion includes nods to the case’s subject matter like “the latest chapter,” “the plot thickened,” “the best laid plans of mice and men,” and “peripeteia.”

Joining Krause were Fuentes and Cowen in part; Cowen dissented in part, arguing that the majority erred in ruling that the bank hadn’t waived its copyright-assignment argument. Arguing counsel were William Tambussi of Brown & Connery for the bank and Howard Hogan of Gibson Dunn for the CEO.


United States v. Baker—criminal—affirmance—Jordan

At the government’s request, the Third Circuit today published a previously non-precedential opinion in a criminal appeal, holding that the district court did not err in (1) refusing to give an entrapment instruction, (2) refusing to instruct the jury on an “I only meant to borrow it” defense to stealing public money, or (3) barring testimony by the defendant’s wife about her medical expenses.

Joining Jordan were Krause and Roth. The case was decided without oral argument.

How to become a good appellate lawyer

If you ask most normal lawyers what it takes to become a good appellate lawyer, I suspect the answers you get would boil down to something like this:

(1) be born freakishly smart, and

(2) possess people skills so deficient that you’re not able to pull off other, better-paying lawyer gigs.

This is wrong. Sure, brainpower helps, and so does an affinity for monkish solitude shackled to your computer. But innate brainy introversion isn’t the key to being a good appeals lawyer. The real key, I’m convinced, is sheer cussedness, a goat-like determination to win cases and to continually improve.

No, I mean it.

What, “Be Goat-Like!” isn’t the professional inspiration you clicked on this post to receive?

[Smiles emptily]

Okay, fine. Here, more wordily, are my big ideas on how to become a good appellate lawyer:

1. Find winning issues. There’s a Statue of David inside every big hunk of marble, but most sculptors settle for something far less. Is there a winning issue inside every appellate record? No there is not, says this bitter habeas lawyer. But digging for the strongest issues, and the strongest ways of framing them, is what sets great appellate lawyers apart from all the great-seeming ones. It’s so, so much less work to find the competent-sounding losing issues that everyone else cheerfully settles for than it is to keep hunting for the winners. That hunting is anything but glamorous. To everyone else, your “relentless” looks quite a bit like “unhinged.” Then, after you finally find the winning issue, it just looks obvious—everyone figures you’re just the lucky schmuck who bumbled into another good claim. So be it. Everything else you do during an appeal, all your Garner-approved issue statements and Butterick-approved typography, are mere pinstripes on your race car: the issues you find and frame are the engine.

2. Learn to write clearly. Some things you either have or you don’t, like long legs or Judge Ambro’s voice. Writing ability ain’t like that. Writing is a skill, which means the way to become competent is to set out on a deliberate course of study. Ever made a conscious decision to improve your writing, and then followed through on that decision over a period of months and years? No? Then (a) your writing probably stinks (sorry!), but (b) dramatic improvement is there for the taking.

For appellate advocacy, the #1 most important thing is clarity. When you write sentences that judges and clerks can understand without re-reading them three times, good things happen. To get started, pony up for a boring and stupid-expensive book you’ve probably never heard of: George Gopen’s The Sense of Structure. (Not quite as good, but far less expensive: used older editions of Joseph Williams’s Style.) Thank me later.

3. Learn tone. The #1 thing that other good lawyers get wrong but good appellate advocates get right is tone. I’ve blathered on about tone already in the context of oral argument, and the same basic points apply to brief-writing, too. Said I:

The right tone for appellate oral argument is a challenge to define. Be crisp and prepared but not wooden. Be reasonable but not wishy-washy. Be persuasive but not too emphatic. Four parts advocate, one part law professor, add just a dash of actor. It’s hard enough to define the right tone—summoning forth that tone under the knee-melting stress of argument is much harder, and maintaining it under fire is hardest of all.

Most oral advocates, in my view, err on the side of over-certainty. We argue as if the law is all obvious, the facts on each point overwhelming. The problem isn’t just that adjectives and adverbs don’t persuade, or that appellate judges bristle at bombast. The deeper problem is that judges don’t want to hear how easy and obvious your case is. If they thought it was that simple, they probably wouldn’t have granted you argument.

Our natural impulse is to assure the judges how overwhelming our side is, but most judges don’t want pat answers to hard questions. They want lawyers who know the facts and the law cold who are willing to help them grapple with the hardest parts of the case. You ain’t much help with the grappling if all you can do is deny that any hard parts exist.

The best way to learn tone, in my view, is to study how the great appellate advocates make their points. Pick two or three you admire (if you need some ideas, try here), get some of their briefs, and get reading. How do they talk about the ruling below, the other side’s arguments, and their own weakest points? Spoiler alert: it’s not the same way the crummy lawyers do.

4. Indulge delusions of grandeur. In reality, who is likely to read your brief with real care? Opposing counsel. The clerks. The judges, probably. Maybe mom. Will the quality of this brief meaningfully impact your professional reputation? Probably not. Heck, will anyone even notice whether you swung for the fences or just went through the motions? Quite possibly not.

That realization, friends, is the reef upon which many a promising appellate career founders. Why put in 100% effort on one appeal, when you can put in 25% effort on four, and get paid for four, without anyone the wiser? Your clients won’t know, the judges won’t care, and everyone else is too busy on their own cases to notice.

Why, then? One answer to this question comes from Anthony Bourdain of all people. In Kitchen Confidential, the book that launched him from restaurant anonymity towards TV fame, he describes the difference between his own middling cooking career and a contemporary’s he admired:

Now here, exactly, is where our career paths divide.

Scott had some chops now. He was good on the line. He had a résumé, some notable names and recommendations, working experience, exposure to France and French food.

So did I, at that point in my career. I was good! I’d been to France. I had a CIA diploma—at a time when that was a pretty rare and impressive credential. So, what the hell happened? How come I’m not a three-star chef? Why don’t I have four sommeliers?

Well, there are lots of reasons, but one reason is that I went for the money. The first chef’s job that came along I grabbed. And the one after that and the one after that. Used to a certain quality of life—as divorcees like to call it, living in the style to which I’d grown accustomed—I was unwilling to step back and maybe learn a thing or two.

Scott was smarter and more serious. He was more single-minded about what he wanted to do, and how well he wanted to do it.

Appellate lawyers, like chefs, only achieve our potential if we’re single-minded about what we want to do and how well we want to do it.

That means putting in the (unpaid, invisible) work between cases learning skills and confronting weaknesses. It also means, on each case you do, indulging your delusions of grandeur. Treat every brief and every argument like it’s the one that judges and lawyers will notice—and will take your measure by.

Because one day, it will be.

Phipps nomination advances to Senate floor

The Third Circuit nomination of Judge Peter Phipps advanced out of the Senate Judiciary Committee today on a straight party-line vote. Video of today’s hearing is here, the Phipps vote starts at 35:13.

Ranking Democrat Dianne Feinstein spoke against his nomination, noting that he has been on the district bench less than nine months and that home-state Senator Bob Casey had not returned his blue slip on Phipps’s nomination.

The committee also favorably reported two Pennsylvania district court nominations, William Stickman IV for WDPA and Jennifer Philpott Wilson for MDPA.

New opinion: Third Circuit upholds denial of plea withdrawal

U.S. v. James—criminal—affirmance—Jordan

A Virgin Islands man with no criminal record and a third-grade education pled guilty to conspiracy to sell drugs. Several months later, he sought to replace his lawyer, asserting that counsel had coerced into pleading guilty. New counsel was appointed and quickly moved to vacate the man’s plea, asserting entrapment by an informant. The district court denied the motion, reasoning that entrapment did not justify withdrawal of a guilty plea because it was merely legal innocence not factual innocence.

Today, the Third Circuit rejected the district court’s reasoning but affirmed anyway. First, the court held that the plea agreement’s waiver of appellate challenges to his sentence was not a waiver of challenges to his conviction including denial of motion to withdraw his plea. Second, joining the majority of a lopsided circuit split, the court held that an assertion of legal innocence such as entrapment can support withdrawal of a guilty plea. Here the court clarified that its 2001 Brown decision rejected an effort to withdraw a guilty plea based on insufficiency of the evidence, not legal innocence.  But third, it held that the defendant’s entrapment claim was factually insufficient to make the district court’s denial of plea withdrawal an abuse of discretion.

Joining Jordan were Smith and Rendell. Arguing counsel were Daniel Lader of Florida for the defendant and Sigrid Tejo-Sprotte for the government.

Three new opinions, including a notable employee-retaliation-suit reversal

Baloga v. Pittston Area School Dist.—contsitutional / public employment—partial reversal—Krause

The unimprovably clear introductory paragraph:

Mike Baloga, a custodian for the Pittston Area School District and vice president of the custodial union, alleges that the District and its maintenance director, Jim Serino, violated his First Amendment rights by retaliating against him based on his union association and related speech. Treating Baloga’s speech and association claims together, the District Court granted summary judgment in favor of the District and Serino, concluding that Baloga’s activity was not constitutionally protected because it did not implicate a matter of public concern. As we recently emphasized in Palardy v. Township of Millburn, however, where a public employee asserts retaliation in violation of the First Amendment as a free speech claim and a pure union association claim, those claims must be analyzed separately, and consistent with longstanding Supreme Court precedent, there is no need to make a separate showing of public concern for a pure union association claim because membership in a public union is “always a matter of public concern.” 906 F.3d 76, 80–81, 83 (3d Cir. 2018), cert. denied, No. 18-830, — S. Ct. —, 2019 WL 2078114, at *1 (May 13, 2019). Because Baloga has raised a triable issue about whether he was retaliated against based solely on his union association, we will affirm in part, reverse in part, and remand for further proceedings.

Joining Krause were Cowen and Fuentes. Arguing counsel were Cynthia Pollick of the Employment Law Firm for the custodian and Thomas Specht of Marshall Dennehey for the school district.


In re: S.S. Body Armor I, Inc.—bankruptcy—affirmance—Greenaway

Honestly, I struggled while reading this opinion to get over the fact that someone decided to name their company “S.S. Body Armor I.” It ended badly. In this appeal, the Third Circuit held that the district court’s denial of an emergency stay motion qualified as an appealable final order because denying the stay prevented “a full airing of the issues on appeal and a decision on the merits.” On the merits, it held that the district court properly denied the stay motion, a holding ultimately derived from its rejection of one side’s striking argument that $5 million in attorneys’ fees was inadequate compensation for its preservation of a specific legal claim.

Joining Greenaway were Ambro and Scirica. Arguing counsel were Alan Kornfeld of California for the appellee and Gary Sesser of New York for the fee challengers.


U.S. v. Greene—criminal—affirmance—Hardiman

Can an officer patting down a suspect identify a bulge in the suspect’s pocket, “by its feel and texture” alone, as a bag of marijuana? Indeed he can, held the Third Circuit today.

Joining Hardiman were Porter and Cowen. The case was decided without oral argument.

New opinion—separate accrual of trade-secrets claims saves bone-cement suit

Heraeus Medical GmbH v. Esschem—civil—partial reversal—Krause

The Third Circuit today held that, under Pennsylvania law on statutes of limitations, each act in a continuing trade-secret misappropriation accrues separately, so that even if the misappropriations began outside the limitations period a party can sue for the ones that occurred within the period. The appeal arose from “another skirmish in a long-running, cross-border court battle over the alleged theft of a trade secret: Heraeus Medical GmbH’s recipe for its bone cement.”

Joining Krause were Cowen and Fuentes. Arguing counsel were 1990 World University Debate Champion Matthew Wolf of Arnold & Porter for the appellant and Richard Harris of Greenberg Traurig for the appellee.


New opinions — federal bar on mentally ill persons possessing firearms doesn’t violate Second Amendment

Beers v. A.G.—civil / constitutional—affirmance—Roth

A man who was involuntarily committed to a psychiatric facility in 2005 after telling his mother he was suicidal and put a gun in his mouth. He had no mental health treatment after 2006. After a doctor opined in 2013 that he was able to handle firearms safely without risk of harm to himself or others, the man filed a Second Amendment as-applied challenge to the federal statute barring persons who had been committed to a mental institution from possessing guns. The district court dismissed the suit, and today the Third Circuit affirmed: ” Even though he claims to be rehabilitated, Beers cannot distinguish himself from the
historically-barred class of mentally ill individuals who were excluded from Second Amendment protection because of the danger they had posed to themselves and to others.”

Joining Roth were Shwartz and Rendell. Arguing counsel were Michael Gottlieb of Vangrossi & Recchuiti for the challenger and Tyce Walters of the DOJ Civil Division for the government.


Fan v. Stonemor Partners LP—civil / securities—affirmance—Restrepo

The Third Circuit affirmed dismissal of a securities-fraud suit against a company that sold funeral services to living people (“pre-need sales”), which evidently leads to accounting issues. The court held the company’s financial disclosures were sufficient to render various alleged misrepresentations immaterial.

Joining Restrepo were Smith and McKee. Arguing counsel were David Goldsmith of New York for the plaintiffs and Michael Holmes of Texas for the company.

The Great Opinion Drought of 2019 hath ended

The Third Circuit issued two precedential opinions today, it’s first precedential opinions since May 28. Has the court ever before not issued its first precedential opinion of the month before its 19th day? I wonder. Anyhow, it’s been a remarkable drought. Of course, this drought is the calm before the traditional end-of-clerkship summer deluge.

To the opinions!

Blake v. JP Morgan Chase Bank—civil—affirmance—Bibas

The Third Circuit today affirmed the dismissal of a consumer class action on timeliness grounds, agreeing with the consumers that each violation of the relevant statute accrues separately, but rejecting their argument that their class claims warrant American Pipe tolling because they were filed while a prior related class action was still pending.

Joining Bibas were Shwartz and Krause. Arguing counsel were Donna Siegel Moffa of Kessler Topaz for the consumers and Jonathan Massey of Massey & Gail for the bank.


Houser v. Superintendent—prisoner rights—affirmance—Chagares

The introduction:

Darien Houser filed a pro se lawsuit against prison officials for deliberate indifference to his medical needs. The District Court appointed him counsel. When counsel withdrew, however, the District Court declined to appoint a new lawyer. Houser tried the case himself and lost. He now argues that the District Court abused its discretion by denying him new counsel without considering the six factors that this Court set forth to guide district courts in Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993). We hold that Tabron applies to successive motions to appoint counsel, but that denying Houser new counsel was not an abuse of discretion. Accordingly, we will affirm.

Joining Chagares were Ambro and Greenaway. Arguing counsel were Teresa Akkara, now of Paul Weiss but formerly of Penn Law, I suspect she argued this as a law student) for the prisoner and Sean Kirkpatrick of the state Attorney General’s office and John Hatzell Jr. for the defendants.

Scirica clerk lands a Supreme Court clerkship, too

Recent Penn Law graduate Louis Capozzi, who recently began a clerkship for Third Circuit Judge Anthony Scirica, has (per David Lat on Above the Law, link here) been hired by Supreme Court Justice Neil Gorsuch to clerk OT 2021. Capozzi graduated law school summa cum laude, was executive editor of the law review, and president of the school’s Federalist Society chapter. Congratulations Mr. Capozzi!

While the Third Circuit isn’t a top feeder circuit, Judge Scirica has now had a number of clerks go on to Scotus clerkships in recent years, including Parker Rider-Longmaid (Ginsburg), William Levi (Alito), and Dana Irwin (Alito).

Meanwhile, Third Circuit alum Laura Wolk, who clerked for Judge Hardiman, begins her Scotus clerkship with Justice Clarence Thomas in October.

So, while the Third Circuit still may not be Scotus feeder central, it’s getting a few and my guess is it’ll get even more in the years ahead

Panel grants do-over of Vanaskie-authored shareholder-suit opinion

This past December 26, days before Judge Thomas Vanaskie’s retirement from the Third Circuit took effect, the court issued an opinion authored by Judge Vanaskie in Jaroslawicz v. M&T Corp., link here. The opinion reversed the dismissal of a shareholder suit arising from a bank merger.

Yesterday, with this order, the panel (Judges McKee and Siler CA6 by designation) granted the petition for rehearing, vacated its opinion, and reconstituted the panel to replace Judge Vanaskie with Judge Paul Matey.

In a separate order, the court directed the parties to submit supplemental briefs on whether a 1976 Third Circuit opinion conflicted with a later Third Circuit opinion and opinions from two other circuits on the degree of culpability required for claims under § 14(a) of the Exchange Act and on when certain regulatory risks must be disclosed.

Two new opinions

Sambare v. AG — immigration — affirmance — Restrepo

Imagine being deported from the country where you’ve lived, legally, for over a decade for driving a vehicle after smoking marijuana. Today, the Third Circuit denied a man’s petition for review challenging his order of removal, holding that the man’s Pa. DUI conviction supported his removal as a “violation of … any law or regulation of a State … relating to a controlled substance …, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.”

Joining Restrepo were Ambro and Greenberg. The case was decided without oral argument.


Mauthe v. Optum Inc. — civil /consumer — affirmance — Greenberg

A company that sells data about health care providers sought to gather that data by sending providers unsolicited faxes asking them to submit their data. A fax recipient sued the company, alleging that the faxes violated the Telephone Consumer Protection Act, but the district court granted summary judgment in favor of the alleged spam faxer and today the Third Circuit affirmed. The TCPA bars unsolicited advertisements, and the court held that to qualify as an advertisement the fax must “directly or indirectly encourage[] the recipient to influence the purchasing decisions of a third party.” Alas.

Joining Greenberg were Ambro and Restrepo. Arguing counsel were Philip Bock of Chicago for the fax recipient and Jessica Ellsworth of Hogan Lovells for the fax sender.

New order requires some (but not lawyers) to lock up their smartphones and laptops inside the courthouse

The Third Circuit today posted a new standing order on its website, link here. The order provides that, effective June 3, the marshals at all federal courthouses in the Eastern District of Pennsylvania (including the Third Circuit’s Byrne courthouse) will implement a new procedure that places significant new limits on use of electronic devices including phones inside the courthouse buildings. The order is signed by EDPA Chief Judge Sanchez. Everyone not exempted from the policy has to keep their devices in locked pouches until they leave.

Lawyers are among those exempted from the new policy, as are jurors, court officers and staff, law enforcement, and media. But lawyers can violate the order merely by letting non-exempted folks like paralegals, investigators, or assistants use their electronic devices inside, which seems certain to lead to inadvertent violations.

The order say that the policy applies to laptops, but how it does so is unclear to me. Under the policy, “all cameras, cellular telephones, smart phones, and similarly sized personal electronic devices” have to be turned off and carried in locked pouches. Are laptops “similarly sized personal electronic devices”? Do they fit in the vouches? If not, what happens to them under the new procedure? We’ll see.

Worth a careful read.

New opinion–Third Circuit vacates order sealing Avandia appeal documents

In re: Avandia Marketing (United Food & Commerical Workers Local 1776)—civil—reversal—Smith

In an interesting procedural opinion issued late yesterday, the Third Circuit vacated a district court’s ruling sealing some documents at GlaxoSmithKline’s request that the appellant wanted to include in the appendix on appeal:

We conclude that the District Court failed to apply the proper legal standard for the common law right of access, which requires as a starting point the application of a presumption of public access. See Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986). By applying, instead, our standard for a protective order under Federal Rule of Civil Procedure 26, the able District Judge incorrectly placed a burden on the plans to show an interest in disclosure—rather than on GSK to justify continued sealing. We will therefore vacate and remand to allow the District Court to consider GSK’s motions for continued confidentiality under the appropriate standard.

The panel majority declined, on constitutional-avoidance grounds, to reach the appellant’s argument that disclosure was required by the First Amendment’s right of access to civil trials. Judge Restrepo dissented on this point, expressing his view that avoidance was not required and that access to the documents was constitutionally required.

Joining Smith were Ambro in full and Restrepo in part; Restrepo dissented in part. Arguing counsel were former McKee clerk Hannah Brennan of Massachusetts for the appellant and Sean Fahey of Pepper Hamilton for GSK.

A quick report on last night’s bench-bar reception, plus my soapboxing

Last night the Third Circuit Bar Association hosted a reception at the courthouse in conjunction with the court’s May en banc sitting. I counted eight Third Circuit judges there, along with a nice turnout from law clerks, court staff, and attorneys. 3CBA president Andrew Simpson flew all the way from St. Croix just to be there, past president Jim Martin came out from Pittsburgh, and Chief Judge Smith even attended, less than two weeks after his hip replacement surgery. It was a wonderful event.

One observation: a big chunk the lawyers there last night were among the circuit’s most established and successful Philly-area federal appellate practitioners. That’s hardly surprising. But, people, events like this are emphatically not just for the Third Circuit in-crowd.

If you aspire to do more federal appeals, and to do them better, then events like last night’s reception are for you. Recent clerks, younger lawyers, women and minority lawyers, associates, solo and small-firm and non-profit lawyers, just-scraping-by immigration lawyers, etc: events like this are for you.

Getting to chat with judges is fun. You will never believe how kind and friendly Judge Chagares is. Judge Hardiman will make you laugh out loud. Judge Restrepo has a gift for making you feel more clever than you really are. And meeting other lawyers who share your nerdy appellate enthusiasm is inspiring, and mighty useful when you need moot judges, amicus authors, or panicky-filing-day advice, which you will.

I bet it’s common to feel like you’re on the outside looking in when it comes to Third Circuit practice. I long felt that way, certainly, and in some ways I still do. Way too many big Third Circuit arguments still pit one white-haired-white-guy partner against another. Often they’re dynamite advocates, sure, but we know they ain’t the only dynamite advocates in this circuit.

Events like last night’s reception, and groups like the Third Circuit Bar Association, can be vehicles for perpetuating the advantages of the haves—but, for the have-nots, they offer real opportunities, too.

Seize them.

A few thoughts on en banc oral argument: splitting time, the Soliloquy Rule, and flip flops somehow

I had the pleasure of attending the Third Circuit’s en banc oral argument this morning in Bastardo-Vale v. Attorney General. The heart of the issue was whether the en banc court should overrule prior circuit precedent rejected by other circuits in interpreting an immigration statute. It was a lively argument and I encourage Third Circuit practitioners to listen to it once audio is posted (or watch it, if the video is posted).

In the meantime, watching the argument inspired a few practice thoughts:

  • The petitioner’s side divided argument between counsel for the petitioner and amicus counsel. I’m never a fan of splitting argument, and I think the dynamics of en banc argument, where time is limited and the judges are scrambling more than usual to get a question in edgewise, make it even less attractive. Sometimes splitting up the argument among multiple advocates is unavoidable, as in multi-party appeals where the different parties have truly diverging interests, but I think counsel should view the argument-splitting option with real skepticism, especially in en banc arguments. Everyone made do well enough this morning, but my advice is to make the tough choice and pick the best advocate to present.
  • Specifically here, petitioner’s counsel proposed to split their rebuttal time. Chief Judge Smith denied the request, fortunately for them in my view, observing that it is difficult enough for individual judges to get their questions in and fracturing the rebuttal would make it even more difficult.
  • The Third Circuit has a well-established procedure in en banc arguments of giving each side five minutes at the start uninterrupted by questions. I very much wish I knew more about how that procedure came to exist and whether the judges currently view it as beneficial. I haven’t argued an en banc case, and maybe I’d change my tune if I did, but I don’t like the circuit’s uninterrupted-start procedure, which I’ve decided to call the Soliloquy Rule. As an advocate, I see the briefs as my chance to say my piece uninterrupted; oral argument is my chance to find out what the judges think and respond as best I can. While I get that articulating a coherent overview is a bigger challenge for counsel when there are a dozen or more judges firing questions, I just question whether that problem warrants the time it consumes.  Also, while the best advocates can use their monologues effectively, less experienced ones often head off down unhelpful paths, and the rule prevents judges from steering them to surer ground. Anyhow, the practice idea I’d offer is that the Soliloquy Rule can be waived, in full or in part, and I’d encourage counsel to consider doing so.
  • Finally, I’ve banged this drum before, but: don’t talk over judges. Don’t. Talk. Over. Judges. It’s a lot harder than it sounds, so make it a focus of your argument preparation. Practice it at home the week before (if nothing else, a welcome arg-prep consolation prize for your spouse). Write it in all caps across the top of your podium notes. It’s the most common argument blunder I see, but a blunder it is. Would you show up for your oral argument in cut-off shorts and flip flops? Not in a million years. That’s how we should feel about talking over judges, too.

New opinion — Third Circuit clarifies standard for government to re-open its case

United States v. Trant—criminal—affirmance—Smith

The Third Circuit today affirmed a Virgin Islands man’s conviction for being a felon in possession of a gun, rejecting various challenges including the defendant’s argument that the court shouldn’t have allowed the prosecution to reopen its case after it forgot to introduce a stipulation. The court clarified that the standard for reopening the government’s cases-in-chief focused on prejudice to the defendant and did not disfavor re-opening. The court observed, “A trial should be a solemn exercise in a search for truth, not a game of ‘gotcha,'” which I can’t quite restrain myself from observing is a sentiment not often enough invoked to the benefit of persons facing deprivation of liberty.

Joining Smith were Jordan and Rendell. Arguing counsel were Sigrid Tejo-Sprotte for the government and Gabriel Villegas of the DVI federal defender’s office for the defendant.


An initial look at Peter Phipps, Trump’s next Third Circuit nominee

President Donald Trump announced on May 3 that he intended to nominate U.S. District Judge Peter Phipps to the Third Circuit’s final open seat. As far as I can tell the nomination hasn’t formally been made yet, but presumably that will happen soon. [Update: the Senate Judiciary Committee indeed received the nomination on May 13.]

Phipps currently serves as a federal judge in the Western District of Pennsylvania. He was nominated by Trump in February of last year and was confirmed by voice vote in October, seven months ago. Before that, he was a career trial attorney in the U.S. Department of Justice’s Civil Division. He graduated from Stanford Law in 1998 and clerked for Sixth Circuit Judge Guy Cole Jr. He is 46.

Pennsylvania’s Republican Senator Pat Toomey released a statement praising Phipps’s nomination. A reporter tweeted that Democratic Pa. Senator Bob Casey said he will withhold his blue slip and has “significant concerns about Judge Phipps’ judicial and constitutional philosophy,” but another report said Casey supports the nomination, and he hasn’t posted a statement on his website or tweeted one. So Casey’s position remains unclear. But his opposition would be unlikely to matter regardless, as Judge Paul Matey’s recent confirmation despite the opposition of both N.J. senators illustrated.

Materials from Phipps’s 2018 district nomination:

  • Senate Judiciary questionnaire
  • Follow-up written responses
  • Hearing video—introductory remarks at 1:52:50, substantive answers at 2:03:55 (rule of law), 2:14:02 (Brown v. Board correctness), and 2:18:50 (implicit bias)
  • a post on Vetting Room blog concluding that his record was “fairly noncontroversial” and correctly predicting a painless confirmation.

To me, the striking thing about his 2018 written and oral responses was how non-ideological his record appears. Many of Trump’s judicial nominees have strong movement-conservative credentials, but Phipps does not. His paper trail is not extensive and far from incendiary (like “An Approach to Preparing Fact Witnesses for Deposition Testimony”). He has never been a Federalist Society member. The circuit judge he clerked for was nominated by President Clinton and is viewed as a liberal. He knocked on doors in 2000 and 2001 for two local political candidates who appear to be Republicans. He did several landlord-tenant cases pro bono, presumably on the tenants’ side. He spent a decade and a half in the Civil Division. He teaches admin law as an adjunct at Duquesne.

He appeared for the government in a number of controversial cases while at DOJ. For example, he defended HUD against a major housing-discrimination class action suit in Baltimore. During the Obama administration he defended the Air Force against a challenge to the “Don’t Ask, Don’t Tell” policy brought by an 18-year-veteran flight nurse discharged for “homosexual conduct.” And in 2017 he represented the Trump administration in litigation challenging its denial of access to abortion to a 17-year-old held at a government facility for immigrant children.

One point of particular Third Circuit interest: Phipps was heavily involved in the litigation over sports gambling in New Jersey on the government’s side. According to his questionnaire, he briefed the case on both appeal rounds and also drafted the brief in opposition to certiorari and a merits-stage amicus brief in the Supreme Court. There Supreme Court’s conservatives ended up rejecting the government’s (and the Third Circuit en banc majority’s) position.

From everything I’ve seen so far, Judge Phipps appears mainstream and qualified. While I believe that nominating a man for this opening is a mistake, I also believe that, viewed on his own merits, Phipps is a sound choice.

New opinion

SHI Partners v. Commissioner of Internal Revenue—tax—affirmance—Greenberg

The Third Circuit affirmed today in a tax case. The court rejected an Administrative Procedures Act challenge to the relevant tax regulations because it was based on hindsight, relying on the IRS’s practice since adopting the regulations. More than that I hesitate to venture on a first read.

Joining Greenberg were Ambro and Restrepo. Arguing counsel were Thomas Dupree of Gibson Dunn for the taxpayer and Judith Hagley for the government.

Sign up now for Third Circuit en banc bench & bar reception next Wednesday

The Third Circuit Bar Association is hosting a free reception for judges and lawyers at the circuit courthouse next Wednesday, May 15. Register now to be there!

The Third Circuit’s spring en banc sitting is that morning, so judges and lawyers from across the circuit will be in town. 3CBA’s president, Andy Simpson, is flying up from the Virgin Islands to be there. The en banc reception that 3CBA put on last year was a wonderful event. I was a wreck that night because I had a big oral argument the next day, and even I enjoyed it. I counted nine Third Circuit judges who attended.

The reception is Wednesday May 15 from 5 to 6 in the Hastie Library of the James Byrne U.S. Courthouse. Beer, wine, and food by DiBruno Brothers will be served.

There’s no charge to attend, and you don’t need to be a 3CBA member, but please RSVP by May 9 with an email to

If you’re able to make it, please join us.

The last 10 Third Circuit judges nominated by GOP presidents have been men; the next one will be, too.

Last December, I wrote, “I believe the executive branch does real and lasting damage to the judicial branch when it creates wild demographic distortions like the gender imbalance now afflicting the Third Circuit.” I titled that post, “The next Third Circuit nominee must be a woman.” But on Friday, President Trump announced that the next Third Circuit nominee will be a man.

On his own merits, District Judge Peter Phipps looks to me like a sound choice, and in other posts I’ll lay out why. This post isn’t about Judge Phipps, it is about how Republican presidents have harmed the Third Circuit by appointing only men.

Once Judge Phipps is confirmed, as I expect him to be, the 14 active Third Circuit judges will be 12 men and 2 women. How did that that happen? The answer is not complicated.

President Bill Clinton successfully appointed 6 Third Circuit judges. Their genders:

    • Male
    • Male
    • Female
    • Female
    • Male
    • Male

President George W. Bush appointed 7:

    • Male
    • Male
    • Male
    • Male
    • Male
    • Male
    • Male

President Barack Obama appointed 5:

    • Male
    • Male
    • Female
    • Female
    • Male

And President Donald Trump has appointed 3 so far, with 1 pending:

    • Male
    • Male
    • Male
    • Male (pending)

If we assume that Judge Phipps will be confirmed, then, recent presidents of each party will have added the same number of judges to the Third Circuit, 11 each. Democrats added 4 women. Republicans, indefensibly, added 0.

Sometimes both sides are equally to blame. Sometimes, not.

Peter Phipps to be nominated for Third Circuit

President Trump today announced his intent to nominate District Judge Peter Phipps to fill the last remaining vacancy on the Third Circuit. Judge Phipps has served on the U.S. District Court for the Western District of Pennsylvania since last October. Here is a link to download his district-court Senate Judiciary questionnaire. This nomination is to fill the opening created when Judge Thomas Vanaskie took senior status before retiring from the court.

The White House announcement isn’t posted on its website yet but a screen capture is in this tweet:

Two immediate observations: not from MDPA, and not a woman.

Two new opinions

U.S. v. Vailey-Snyder—criminal—affirmance—Hardiman

The Third Circuit today held that an inmate’s placement in administrative segregation while under investigation for a new crime does not trigger his constitutional or statutory rights to a speedy trial. The right is triggered by arrest or indictment, and placing an inmate in administrative segregation during investigation of an offense is neither. The court also rejected the defendant’s vouching and cumulative-error claims.

Joining Hardiman were Scirica and Rendell. Arguing counsel were Todd Hinkley for the government and Brandon Reish of Stroudsburg, Pa. (the caption has a typo, “Strousburg”) for the defendant.


U.S. ex rel. Doe v. Heart Solution (revised op.)— civil — partial affirmance — Roth

The Third Circuit issued a revised opinion today in this case. The original opinion, now vacated, is here.

The vacated conclusion read:

For the foregoing reasons, we will affirm the District Court’s judgment on the issue of Ms. Patel’s liability under the FCA for false claims submitted to Medicare for unsupervised neurological tests and on the issue of Ms. Patel’s common law fraud. We will reverse the remaining portions of the District Court’s summary judgment orders and remand this case to the District Court for further proceedings consistent with this opinion.

The new conclusion reads:

For the foregoing reasons, we will affirm the District Court’s judgment on the issue of Ms. Patel’s liability and damages under the FCA for false claims submitted to Medicare for unsupervised neurological tests and on the issue of Ms. Patel’s common law fraud. We will reverse the portions of the District Court’s summary judgment orders with respect to Heart Solution and with respect to Nita Patel’s liability and damages for the remaining common law claims and remand this case to the District Court for further proceedings consistent with this opinion.

Joining Roth were Jordan and Stearns D.Mass by designation. Arguing counsel were Mark Cedrone of Cedrone & Mancano for the woman and the company and Charles Graybow of the N.J. U.S. Attorney’s office for the government.

Two new opinions, including a split-panel win for class suing Penn over retirement-plan fees

Sweda v. Univ. of Pa. — ERISA — partial reversal — Fisher

The Third Circuit revived an ERISA class-action against the University of Pennsylvania today, reversing the district court’s dismissal of claims for breach of fiduciary duty by paying excessive recordkeeping and investment fees. The court joined the Eighth Circuit in holding that Twombly‘s pleading rule for antitrust cases does not apply to ERISA fiduciary-breach claims.

Joining Fisher was Shwartz; Roth dissented, spotlighting her concern that the university will face undue pressure to settle given the large amount at stake. Arguing counsel were Michael Wolff of Missouri for the class and former Hutchinson clerk Brian Ortelere of Morgan Lewis for Penn.


Tundo v. County of Passaic — civil rights — affirmance — Bibas

The Third Circuit held that New Jersey’s civil-service commission did not violate the due process rights of two laid-off corrections officers when it removed them from its rehire lists, even though the two had a reasonable expectation of staying on them, because the commission had left itself broad discretion to remove them from the lists.

Joining Bibas were Chagares and Sánchez EDPA by designation. The case was decided without oral argument.

Court issues updated Greenspan opinion—and shows its work

Today the Third Circuit re-issued a recent opinion with minor changes.

The court partially granted the government’s motion to amend the criminal-appeal opinion it issued in United States v. Greenspan. My summary of the old opinion is here, the order partially granting the motion is here, the new opinion is here. The order helpfully describes the changes as “minor.” Among the changes, the new opinion adds a citation to the standard for reviewing a defendant’s failure to raise cumulative error on direct review, p.29, and removes one reference to sandbagging, p.3.

Of little interest to most, but of great interest to close court followers, was the panel’s identification in its order of the pages on which the changes occurred. I’ve mentioned here past instances where the court hasn’t done this. I believe providing this sort of information is an excellent practice and am rooting for future panels to follow suit.

Third Circuit hiring director of workplace relations

The Third Circuit has posted a job announcement for a new position in the circuit executive’s office for a director of workplace relations. A link to the announcement is here.

The position will “provide[] confidential and impartial assistance to judiciary employees and judges on workplace conduct matters” and “coordinate[] the implementation of employment dispute resolution policies for all courts within the Third Circuit.” Among its duties will be to

Serve as the primary expert on workplace conduct and related issues for the Third Circuit Judicial Council, Court of Appeals, District Courts, Probation and Pretrial Offices, Federal Public Defenders, and the Judicial Council Workplace Conduct Committee. Research, analyze alternatives, prepare appropriate recommendations, and identify courses of action as appropriate.

This new position was created in the wake of the Federal Judiciary Workplace Conduct Working Group’s recommendations for reform after sexual misconduct accusations against Ninth Circuit Judge Alex Kozinski received national coverage. The Third Circuit is one of several circuits creating such a position.

The workplace-relations-director position will remain open until filled, but applications received before May 27 will get priority.

Two new opinions

In re: NFL Players’ Concussion Injury Litig. (RD Legal Funding LLC) — civil — partial reversal — Smith

After approval of the NFL concussion-suit settlement, some former players and family members sold their recovery rights to litigation funders in exchange for immediate payment. The district court voided these deals to protect the class members from predatory lending practices, and three of the litigation funders appealed. Today, the Third Circuit reversed in part. While commending the district court’s “very able” handling of the case, the court held that the court went too far in voiding the cash advance deals in their entirety. The court dismissed some of the appeals on timeliness grounds and another on appellate-jurisdictional grounds.

Joining Smith were Chagares and Bibas. Arguing counsel were Samuel Issacharoff of NYU Law School for the class, and (1) Michael Roth of Boies Schiller, (2) Raul Sloezen, and (3) Peter Buckley of Fox Rothschild for the litigation funders.


ADP LLC v. Rafferty — civil — partial reversal — Krause

The Third Circuit today held that, under New Jersey law, an employer’s non-compete agreements were not per se unenforeceable and remanded for the district court to determine whether their enforcement should be limited due to overbreadth. The introduction:

In this appeal, we must determine whether certain restrictive covenants, which high-performing employees enter into as a condition of a stock award, constitute an impermissible restraint on trade under New Jersey law. We conclude that these restrictive covenants are not unenforceable in their entirety because they serve a legitimate business interest, but they may place an undue hardship on employees because they are overbroad. Accordingly, we will remand for the District Court to consider whether and to what extent it is necessary to curtail the restrictive covenants’ scope, which is the approach prescribed by the New Jersey Supreme Court when confronted with overbroad restrictive covenants such as these.

Joining Krause were Hardiman and Bibas. Arguing counsel were Timothy Lowe of McDonald Hopkins for the employer and John Schmidt Jr. of Lindabury McCormick for the former employees.

Chief Judge Smith discusses oral-argument rates, #MeToo in the courts, lousy reply briefs, and more

Third Circuit Chief Judge D. Brooks Smith discussed the state of the circuit yesterday at a CLE program in Philadelphia. The event was put on by the Philadelphia Bar Association. I posted separately here about Chief Judge Smith’s important remarks about judicial independence at the end of the event.

Here are some other highlights from his talk:

  • The federal courts’ caseload has declined since 2008, which he called a “concerning phenomenon.” The Third Circuit’s caseload has dropped since 2014.
  • Specific caseload areas are growing, including health care/pharma and criminal cases from New Jersey, civil cases from Delaware, and, above all, immigration cases.
  • Pro se appeals are a majority of the Third Circuit’s caseload and have been for several years. In 2018, pro se appeals were 56% of the court’s cases.
  • Chief Judge Smith spoke at some length about the circuit’s oral-argument rate and why criticism of that rate as too low is overstated. He noted that few pro se cases are appropriate for oral argument, and that hearing fewer arguments allows the judges to rigorously prepare for the ones they hear. And he observed that the court hears oral argument in over a third (34.6% in 2018) of the cases submitted on the merits, which he characterized as “not a bad rate.”
  • As to argument video, he noted that court upgraded its video cameras, microphones, and audio to reduce feedback (praise be!). They’ve added the ability to focus on individual judges. He expects video posting to increase over time, as some have pointedly urged, and thinks that is a good thing even though he was “no great friend” of video-recording arguments originally. He reported that, in 2017, the circuit posted of video of 7.5% of its arguments, and 8.8% in 2018. Only two videos have been posted from the 95 arguments so far in 2019, but he predicted that will increase.
  • The circuit has been using software that inserts quasi-hyperlinks to cases and other legal authorities for judges reading briefs. He also mentioned software that links to appendix citations, but I’m not clear whether that’s live yet.
  • Chief Judge Smith has worked to get the attention of New Jersey’s senators to the state’s many district court vacancies, which have put D.N.J. in “dire straits,” but “so far without any success.”
  • The next circuit bench–bar conference will be in May of 2020 in Philadelphia.
  • The court held its judges-only conference last fall, which focused on judicial wellness. One aspect discussed was judicial disability, and Chief Judge Smith encouraged lawyers to contact him directly with information about a judge’s misconduct or disability.
  • He tries to keep an eye on cases that are taking particularly long to be decided. If lawyers believe a case is taking inordinately long, he invited them to bring it to his attention. (Asked how long is long enough to contact him about, he quipped, “You’re lawyers, figure it out.”)
  • He spoke at length about the Judiciary Workplace Conduct Working Group, which Circuit Executive Margaret Weigand was a member of. He emphasized attorneys’ ability to report misconduct based on second-hand awareness as well as judges’ duty to report, and described the efforts as a “major step.”
  • Chief Judge Smith was “deeply disturbed” that major news reports had painted a misleading picture about the number of misconduct complaints against judges. He observed that the majority of internal complaints were against non-judges, and that the reports failed to note that the “vast, vast” majority of complaints against judges were brought by disappointed prisoners and pro se litigants.
  • He spoke candidly about the court’s decision to create an award named for Joseph Biden recognizing service to the court: “the courts don’t have many friends,” so the decision was made to recognize “in as conspicuous a way as possible” those who had done a lot for them.
  • Asked for practice tips, he described, “brazenly and shamelessly,” his dim view of reply briefs. Most are repetitive, merely rehashing the opening brief, rarely presenting much that alters the equation in any way. In fact, his normal practice is to read the opening briefs and answer briefs before giving the briefs to his clerks, but, as to reply briefs, he just asks the clerks to read them and let him know if there’s anything in them he needs to know about. Zounds! He jokingly thanked the audience for letting him “vent on a subject very near and dear to my heart.”

Kudos to the Philadelphia Bar Association for putting on this valuable event.

Third Circuit’s Chief Judge expresses alarm at President Trump’s attacks on judges

Near the end of his absorbing talk yesterday in Philadelphia on the state of the Third Circuit, Chief Judge D. Brooks Smith was asked by a lawyer in the audience about the current partisan climate, attacks on judicial independence, and what the federal judiciary can do about it.

Chief Judge Smith responded that he had expected this question and was glad for it. He observed that he needed to be “circumspect” in addressing political or partisan matters, but that, at this point in his life, he “felt obligated to speak candidly.” The room went quiet.

Partisan rhetoric, he said, was at a level and volume we had not seen in our lifetime. While there had been other divisive times in our nation’s history, “this is definitely one of them.” He said there have been “attacks on the judiciary and on judges,” including “by the President of the United States. I find this alarming.”

He recalled Chief Justice of the United States John Roberts’s remarks on judicial independence last year, noting that the Chief Justice had “felt impelled” to make an “unusual public response.”

Chief Judge Smith explained that he was not worried that the attacks on the judiciary would affect him or his colleagues, but that he did worry about the public impact. He joked that he lived in the Alabama-in-between part of Pennsylvania, and he said he listened and heard a lot. When judges are criticized by true believers in one political figure or another, the criticisms are “congenial to the political figure they’re aligned with,” not based on an understanding of how the process works. He went on:

And that’s what we’re about [here he tapped the table for emphasis] is process. If our system is about anything it’s about process, and fair process. And we don’t [tap] have Obama judges and we don’t [tap] have Bush judges, and the people I work with don’t consider themselves that, I don’t consider them that.

Finally, if I can end on this pointed note. Why the hell would I take a life-tenured job guaranteed to earn me less over all those years than I could otherwise make, and I did take a substantial cut many years ago to become a judge, to pledge my allegiance to a political figure? What. Fun. Is. That? The fun of judging is the intellectual challenge and the independence to do what you think is right, what you hope is right legally.

Quite something. I went to this talk expecting nerdy circuit intel, which we also got and which I’ll summarize in a separate post.

I wasn’t expecting history.

Two new opinions

League of Women Voters of Pa. v. Commonwealth of Pa. — civil / attorney fees — partial affirmance — Scirica

Last year, the Pennsylvania Supreme threw out the state’s Republican-drawn congressional districts, ruling that they amounted to a partisan gerrymander that violated the Pennsylvania Constitution. One brief chapter in that litigation took place in federal court. After an unfavorable state-court ruling, GOP State Senate President Pro Tem Joe Scarnati removed the case to federal court, but then, on the eve of a federal-court hearing on the removal, moved to remand it back to state court, asserting a misunderstanding.

After the case returned to state court, the plaintiffs sought attorney’s fees and costs for opposing removal. The district court granted the motion, ruling that Senator Scarnati had no basis for believing that removal was proper and awarding about half the fees requested. The district court held Senator Scarnati personally liable for the fee award, per the plaintiffs’ request to avoid making taxpayers foot the bill.

Today, the Third Circuit rejected Senator Scarnati’s challenges to the decision to award fees and to the fee calculation based on a $400 hourly rate, but it held that the Senator, sued only in his official capacity, could not be held liable in his personal capacity, at least without a finding of bad faith. Sorry, taxpayers.

Joining Scirica were Ambro and Rendell. Arguing counsel were Matthew Haverstick of Kleinbard for the senator and Elisabeth Theodore of Arnold & Porter for the plaintiffs.


Hildebrand v. Allegheny County — employment — reversal — Fisher

The Third Circuit today vacated the dismissal with prejudice of an age-discrimination suit for failure to prosecute, concluding that the district court improperly assumed that the party was responsible for the delay, failed to consider the merits of his claim, and failed to honor the circuit’s established preference for decisions on the merits. The plaintiff was a fired Allegheny County DA’s Office detective who alleged that the office had a practice of forcing out older detectives.

Joining Fisher were Smith and McKee. Arguing counsel were Marjorie Crist of the Crist Law Center for the plaintiff and Charles Porter Jr. of Brucker and Porter for the employer.

New opinions — two Third Circuit rulings recognizing limits on religious-based discrimination

Fulton v. City of Philadelphia — civil — affirmance — Ambro

Catholic Social Services sued the City of Philadelphia because it wanted to continue to receive foster referrals from the city but it refused to comply with the city’s general anti-discrimination requirements because it refused to work with same-sex couples wanting to be foster parents. The Catholic foster agency claimed that the First Amendment’s Free Exercise, Establishment, and Free Speech clauses required the city to renew its contract with them despite the group’s unwillingness to comply with the city’s anti-discrimination laws. The district court ruled that Catholic Social Services was not entitled to a preliminary injunction, and today the Third Circuit affirmed, holding, “It has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”

The heart of the opinion:

CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.

The Catholic foster agency’s discrimination first came to light in this news story last year by Julia Terruso in the Philadelphia Inquirer.

[Disclosure: I assisted counsel for intervor-appellees by serving as an argument-moot judge.]

Joining Ambro were Scirica and Rendell. Arguing counsel were Lori Windham of the Becket Fund for Religious Liberty for Catholic Social Services, Jane Lovitch Istvan for the city, and Leslie Cooper of the ACLU for intervenor-appellees.


Curto v. A Country Place Condominium Assoc. — civil  — reversal — Ambro

A condominium community with a large Orthodox Jewish population had a swimming pool. To accommodate Orthodox principles, it aside over 60 hours a week for mens-only or women’s only swimming, leaving only 25 hours a week for mixed-gender swimming. Condo residents sued, alleging that the gender-segregation of the pool violated the Fair Housing Act. The district court ruled in favor of the condo, but today the Third Circuit reversed, holding that the pool segregation violates the FHA because it reserves most of the after-work hours to men.

Joining Ambro were Bibas and Fuentes. Fuentes also concurred to express skepticism that merely allocating the evening hours more evenly would save the condo’s sex-segregation policy. Arguing counsel were Sandra Park of ACLU for the plaintiffs and Angela Maione Costigan of Costigan & Costigan for the condominium association.

Chief Judge to discuss “State of the Third Circuit” in Philadelphia next week

Third Circuit Chief Judge D. Brooks Smith will present next Thursday, April 25, at a CLE program on the state of the Third Circuit. The program is co-hosted by the Federal Court and Appellate Court committees of the Philadelphia Bar Association. From the event announcement:

Chief Judge D. Brooks Smith will address the state of the United States Court of Appeals for the Third Circuit. The Chief Judge will discuss challenges faced by the Third Circuit including:

  • An increase in oral arguments
  • Innovations in the Third Circuit – video posting of arguments, etc.
  • Vacancies and the new judges
  • The lingering effects of the government shutdown
  • Expectations of the court for practitioners

Chief Judge Smith will also provide an update on newly-issued conduct rules promulgated in the wake of the Kozinski “scandal” of 2018.

This looks like an outstanding event. I’m registered for it, and I hope to see lots of my fellow Third Circuit enthusiasts there. Details and registration at this link.

My thanks to Howard Bashman for letting me know about it.

New 3CBA newsletter welcomes Porter, honors Vanaskie

The April 2019 issue of the Third Circuit Bar Association newsletter On Appeal is out, and available online at this link. The new issue features a welcome-to-the-court profile of new Judge David Porter and a warm tribute to recently retired Judge Thomas Vanaskie by one of his former law clerks.

Also in this issue:

  • an insightful summary of US ex rel. Doe v. Heart Solution,
  • advice (from me) for first oral arguments,
  • new 3CBA leader Andrew Simpson’s first President’s Note,
  • an acknowledgment of the tragic death of the son of Circuit Executive Margaret Wiegand, noting that donations may be made in his honor to the Wingman Foundation at this link, and, finally,
  • a note that the next Third Circuit Bench-Bar Conference will be in Philadelphia next spring.


New opinion — Third Circuit affirms doctor’s criminal conviction despite multiple errors [updated]

U.S. v. Greenspan — criminal — affirmance — Bibas

UPDATE: on May 1 the court granted the government’s motion to amend the original opinion and issued a new opinion. The link above is the new opinion; the prior one is here.

“Sometimes, the only plausible explanation for a lab’s stream of payments to a doctor is cash for blood.” Quite an opening to today’s Third Circuit opinion affirming a doctor’s convictions for fraud and taking bribes and kickbacks. In an opinion that’s a model of lucidity, the court found that the district court committed multiple errors—limiting an advice-of-counsel defense by suggesting that the defendant bore the burden of proof and excluding evidence in support of the defense, and at sentencing asking the defense counsel rather than the defendant himself whether he wished to allocute—but affirmed due in part to overwhelming evidence of guilt.

A practice point for criminal defense practitioners to note: the court noted but did not answer the question of whether cumulative error is a discrete claim that defendants must raise in district court or forfeit on appeal. [On reflection, I believe I was wrong that the opinion was discussing whether cumulative error must be raised in district court; instead, I now believe, it was talking about whether it must be preserved on appeal or forfeit on appeal. Thanks to a helpful reader for flagging this.]

Joining Bibas were Hardiman and Krause. Arguing counsel were Peter Goldberger for the defendant and Steven Sanders of the N.J. Office of the U.S. Attorney for the government. The opinion observed that defense counsel “thoroughly examined the extensive record and skillfully highlighted the errors and potential errors,” adding, “We are grateful for their expert assistance in doing so.”



Circuit Executive’s son killed in military helicopter crash

I’m sad beyond words to report that Circuit Executive Margaret Wiegand’s son passed away recently.

Marine Corps Major Matthew Wiegand was killed in a helicopter training accident on March 30 in Arizona. A news story describing the tragic accident is here; the cause remains under investigation. Major Wiegand, who was 34, held the highest qualifications in the AH-1Z Viper helicopter he was piloting. Pennsylvania Governor Tom Wolf has ordered Commonwealth flags to be flown at half-mast to honor him.

Funeral services will be this Wednesday, April 17, at 11 a.m. at Abington Presbyterian Church, 1082 Old York Rd., Abington, Pa. He will be buried with full military honors at Arlington National Cemetary in August.

Cards may be sent to Margaret Wiegand at the Court’s address. Contributions in Major Wiegand’s memory may be made to the Wingman Foundation, 10915 Via Brescia, Unit 909, San Diego, CA 92129.

Update: here is the obituary that ran in Sunday’s Philadelphia Inquirer.

CA3blog turns 5

Five years ago this week, I posted my first CA3blog post. (It was a quote about writing.) That was 1,095 nerdy blog posts ago. The composition of the Third Circuit has changed quite a lot in those five years, adding five new judges and losing too many to retirement, inactive status, or death. The Chief Judgeship passed from Judge McKee to Chief Judge Smith.

In the beginning, the blog was spectacularly obscure, naturally, but over time it’s been fortunate enough to attract a readership far beyond what I dreamed when I began. I’m grateful for that.

My Third Circuit–focused law practice has grown over those five years, too (I suspect the blog has helped there), to the point where I’ve toyed with the idea of scaling my blogging way back. We’ll see. Without a doubt, one of the great joys of doing this blog has been the opportunity it’s given me to connect with terrific lawyers around the circuit, and it’s hard to imagine giving that up.

I’m proud of my work on the blog, my various clumsy missteps and appalling typos notwithstanding. I’m particularly proud that it’s given me a platform to speak up against what I’ve seen as unfair attacks on judges and judicial nominees, who often can’t speak up for themselves. I firmly believe that’s a responsibility for all lawyers, and, in these times, an urgent one. If sometimes that’s seen as sucking up to the black robes, so be it. And I like to think I’ve been a useful voice for promoting better appellate advocacy and increased awareness of the Third Circuit’s important work.

Okay, enough navel gazing. Five years, egads. Thanks for reading!

Judge Barry’s retirement: media round-up [updated]

Third Circuit Judge Maryanne Trump Barry’s retirement in February, first reported by the New York Times earlier this week, has sparked yet another round of news coverage of the intensely private jurist.

Among them:

I love Goldberger’s quote in the Law360 article:

“She would consistently ask sharp, difficult, well-considered questions of both sides at argument, often based on the most extraordinary knowledge of key details of the record,” he said. “You absolutely had to know your case to contend with Judge Barry at argument. I appreciated that ability she had very much.”

(That reminds me of this early CA3blog post about an oral argument before a panel that included Judge Barry, entitled “The bench of fire.”)

And I’ll close with Chief Judge Smith’s statement quoted in the same article:

“Judge Barry was a very hard-working jurist with a sharp mind, keen instincts and a quick wit,” he said. “We all have been extremely fortunate to have Judge Barry as a colleague and friend. Judge Barry is a judicial giant, and everyone she has touched is a beneficiary of her extraordinary service.”

Judge Barry retired, ending inquiry [updated]

The New York Times reported today that Maryanne Trump Barry, the president’s sister, retired in February as a Third Circuit judge. Her retirement terminated a Second Circuit Judicial Council inquiry into her role in reported Trump-family “dubious tax schemes during the 1990s, including instances of outright fraud.”

Trump became a federal judge in 1983, and served on the Third Circuit from 1999 through last month. She assumed senior status in 2011 and took inactive status in 2017 shortly after President Trump’s inauguration.

From today’s report:

In a letter dated Feb. 1, a court official notified the four individuals who had filed the complaints that the investigation was “receiving the full attention” of a judicial conduct council. Ten days later, Judge Barry filed her retirement papers.


Following confidentiality requirements, Judge Barry’s name does not appear on the order ending the investigation or the correspondence with the complainants. The order identifies the judge in question as a senior inactive judge, about whom complaints were filed in October 2018. Under court rules, all complaints are reviewed by a judge, and those with an allegation of misconduct or disability are generally referred to a panel of judges for investigation.

“The complaints allege, on the basis of a news article, that the then-inactive senior circuit judge may have committed misconduct relating to tax and financial transactions,” says the order, dated April 1.

This is a sad end to the judicial career of a judge who was widely respected and warmly admired throughout her time on the bench.


UPDATE: Larry Neumeister and Maryclaire Dale have this strong follow-up story for AP, featuring statements from two of Judge Barry’s fellow Third Circuit judges:

Chief Judge D. Brooks Smith of the 3rd U.S. Circuit Court of Appeals in Philadelphia released a statement calling Barry a “judicial giant” whose 36 years as a judge in the Philadelphia federal courts were “beyond exemplary.”

“Judge Barry was a very hard working jurist with a sharp mind, keen instincts, and a quick wit. She was a role model for women in the law, and she took that responsibility seriously,” Smith said.

Judge Theodore McKee, another of Barry’s 3rd Circuit’s colleagues, told The Associated Press that Barry was a meticulous judge who protected the court’s reputation, and to the extent the complaints “may have cast aspersions on that, I know she would have been very concerned.”


New opinion — Third Circuit issues revised panel opinion in Delaware courts appeal

Adams v. Governor of Delaware (amended)–civil–partial reversal–Fuentes

The Third Circuit today granted panel rehearing, vacated its original panel opinion in the case striking down Delaware’s requirement that its judges be Democrats or Republicans, and issued a new panel opinion. The order granting panel rehearing stated in a footnote, ” As the merits panel has vacated the prior opinion and judgment, action is not required by the en banc court. Judges Jordan and Bibas have voted for rehearing en banc.”

What changed in the amended opinion? The new opinion itself does not say, but the changes I notice are:

  • a corrected footnote 16,
  • a new footnote 32 discussing standing and severability, and
  • a new section starting on page 35 concluding that the political-affiliation requirement is not severable.

The rest of the opinion, including the three-judge concurrence, appears unchanged; here is my prior summary:

The Delaware Constitution sets out a unique method for selecting state-court judges: the Governor appoints them (based on recommendations from nominating commissions, and without legislative involvement) subject to a requirement that the judges of each court contain a balance of Democrats and Republicans. For example, ” three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.” The goal was to create a bipartisan state judiciary, but one effect was to exclude candidates who aren’t members of either of the two major parties.

A Delaware lawyer who is registered as an Independent challenged the political-affiliation requirement as a violation of his First Amendment rights. The district court denied his challenge, ruling that restricting judgeship eligibility based on political affiliation was allowed because judges qualify as policymakers. Today the Third Circuit reversed, holding that judicial officers, whether appointed or elected, are not policymakers. In so holding, the court split with the Sixth and Seventh Circuits. The court also rejected the governor’s argument that the state’s interest in political balance supports its requirement, holding that even if the interest qualifies as vital the rule is not narrowly tailored to meet it. The court also rejected the Governor’s challenge to standing.

Judge McKee concurred, joined (unusually) by both of the other judges on the panel, emphasizing that the Delaware judiciary is highly regarded and expressing confidence that the state can preserve its esteemed legal culture without the current political-affiliation requirement.

Joining Fuentes were McKee and Restrepo. Arguing counsel were David McBride of Young Conaway for the challenger and David Finger of Finger & Slanina for the governor.

UPDATE: according to this post on Ballot Access News, the court denied en banc rehearing on May 7 by a vote of 9-4, with Judges Jordan, Hardiman, Krause, and Bibas voting to grant.

New opinion — a divided panel splits from a sister circuit on waiver

In re: Asbestos Prods. Liability Litig. (Schroeder) — civil — reversal — Smith

The Third Circuit today held that asbestos-litigation defendants waived their personal-jurisdiction defense and that the district court’s ruling to the contrary was an abuse of discretion. The defendants asserted personal jurisdiction as a defense at the outset, but they implicitly waived the defense by, among other things, asking the court for certain rulings before deciding whether to waive jurisdiction and objecting to transfer to a court with jurisdiction. In so holding, the court expressly split with the Sixth Circuit. Only in asbestos litigation is it not surprising when the opinion ends, ” Barring any additional preliminary matters, these 30-year-old cases should at last proceed to adjudication on the merit.”

Joining Smith was McKee; Fisher dissented, vibrantly. Between the dissent and the circuit split, I suspect there’s a bit of battling ahead before any proceeding to adjudication actually transpires. Arguing counsel were Louis Bograd of Motley Rice for the plaintiffs and Harold Henderson of Thompson Hine for the defendants.

New opinion — Third Circuit reissues opinion to clarify elements/means analysis

U.S. v. McCants — criminal — affirmance — Hardiman

In a decision reissued upon granting the appellant’s motion for panel rehearing, the Third Circuit again rejected a criminal defendant’s Fourth Amendment challenge to his conviction and his challenges to his sentencing as a career offender based on prior NJ convictions for second-degree robbery as crimes of violence.

While the new opinion does not indicate what changes it made, the changes appear to focus on elaborating on why the court concluded that New Jersey’s robbery statute set out alternative elements rather than means. I notice a new sentence on page 15 (beginning “‘At a trial, they are what ….”) and three new paragraphs on pages 16 and 17 (from “By contrast, in Mathis” through “list elements, not means.”)

Joining Hardiman are Krause and Bibas. Arguing counsel were Leticia Olivera of the NJ FPD for the defendant and Richard Ramsay of the NJ USAO for the government.

New opinion — Third Circuit decides a big case on drug-quantity aggregation

U.S. v. Rowe — criminal — reversal — Fisher

It is a crime to distribute, or to possess with intent to distribute, illegal drugs, and the distribution or possession of larger quantities triggers mandatory minimum sentences. For heroin, distribution or possession of 100 grams or more means a 5-year mandatory minimum, and 1000 grams means a 10-year mandatory minimum.

But how are those drug quantities calculated? Suppose a defendant acquires 600 grams of heroin, sells it all at once, then does it again. Are the two quantities added together, 600+600=1200, such that the defendant gets the 1000-gram 10-year mandatory? And does the answer depend on whether the crime was distribution (not a continuing offense) or possession (a continuing offense)?

Drug crimes are the most common federal crimes, so the answers to those questions matter a lot to lots of criminal defendants.

Today, in a major criminal-appeal ruling, the Third Circuit vacated a defendant’s drug conviction, holding that convictions and their resulting mandatory minimum sentences under 21 U.S.C. § 841(b)(1) must be based on discrete distributions or possessions that exceed the drug-quantity thresholds, not a series of smaller quantities aggregated to meet the quantity threshold.

The distribution holding is important in the Middle District of Pennsylvania, where aggregation of sale quantities to trigger mandatory minimums has been a longstanding outlier practice. The possession holding will apply more broadly. The key passage: “possession of 1000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1000 grams.”

The court vacated the defendant’s conviction and remanded for resentencing for distribution and possession of 100 grams with the government barred from offering new drug-quantity evidence on remand. (The district court had calculated the defendant’s sentence under the Sentencing Guidelines based on over 10 kilograms, relying on evidence that had been excluded at trial and not introduced at sentencing, which on appeal the the government conceded was error.)

Joining Fisher were Smith and McKee. Arguing counsel were Peter Goldberger for the defendant and Stephen Cerutti II of the MDPA US Attorney’s office for the government.

This was already Goldberger’s second major Third Circuit win of 2019, following Piasecki; not surprisingly, Goldberger recently was honored by a publication based on peer voting as lawyer of the year for appellate practice in eastern Pennsylvania. His co-counsel on the case was Goldberger’s long-term senior associate and former Third Circuit staff attorney Pamela Wilk.

New opinion — employer loses case by waiving its winning argument

Robinson v. First State Community Action Agency — civil — affirmance — Fuentes

The defendant in an employment-disability suit waived a meritorious legal argument by failing to assert it prior to appeal after accepting the plaintiff’s erroneous case theory, encouraging the court to adopt an erroneous jury instruction, and failing to raise the error in post-trial briefing. Because the error was waived, the court rejected the defendant’s argument that the court should review its jury-instruction claim for plain error.

The waived error? In district court, the plaintiff admitted that she could not prove that she was actually is dyslexic, but she alleged that her employer violated the Americans with Disabilities Act when it regarded her as dyslexic yet refused to accommodate her perceived disability. But a 2008 amendment to the ADA made clear that so-called regarded-as plaintiffs are not entitled to accommodation.

The court’s willingness to find waiver of a winning legal argument is correct in my view, but I still wonder why it has refused to do that in some other cases, most recently Bistrian.

Joining Fuentes were Krause and Cowen. The appeal was decided without oral argument.


Juvenile-sentencing appeal argued en banc last month put on hold

Last month the Third Circuit held en banc oral argument in United States v. Grant, an appeal presenting the issue of whether a de facto life sentence can be unconstitutional under Miller v. Alabama‘s rule barring mandatory life sentences for juveniles. Audio of the en banc argument is here.

The Third Circuit has now put Grant on hold for a related Supreme Court case. On March 18, the Supreme Court granted certiorari in Mathena v. Malvo  to examine the scope of Miller and whether it was expanded by the subsequent decision in Montgomery v. Louisiana. Four days after the Mathena cert grant, the Third Circuit put Grant on hold C.A.V. pending the decision in that case. (C.A.V. is an acronym for the Latin phrase curia advisari vult, literally “the court wishes to be advised.”)

Thanks to a reader for alerting me.

Get thee to the courtroom

This week I got to see two Third Circuit oral argument days. I had an argument of my own on the end of the second day, so the first day I was there to learn, the second to anxiously wait. The panel both days was composed of Judges Shwartz, Krause, and Bibas.

As I sat watching, I was reminded that, while we may all agree that briefing is where most Third Circuit cases are won or lost, there is nevertheless something satisfying about watching terrific advocates argue their cases. When a lawyer puts in the work to distill her position to its essence and to respond to the tough questions with relentless clarity, it is nerdy-exhilarating to behold.

Two arguments in particular that I saw this week brought this home for me. The first was a criminal appeal about whether Hobbs Act robbery convictions are crimes of violence under the Sentencing Guidelines. The advocates were Brett Sweitzer for the defendant and Robert Zauzmer for the government. They’re two of the circuit’s very best, so I knew it was going to be great, and great it was. A link to the audio is here.

The other was a civil appeal about whether Johnson & Johnson could force a plaintiff into arbitration using an arbitration agreement between the plaintiff and a different company. It featured two lawyers from Washington D.C. who, I confess, I hadn’t heard of before, Todd Kim of Reed Smith and Karla Gilbride of Public Justice. Here is the link to the audio. Kim (an Obama nominee the D.C. Court of Appeals) was excellent, and, my goodness, Gilbride was stellar.

I often encourage lawyers to listen to argument audio, or watch video, to learn from each other. I do it a lot. We’re all busy, and sitting in front of your computer is a whole lot more convenient than busting out the suit and heading over to the courthouse.

But the arguments that I remember most vividly—the arguments I’ve learned the most from—are the ones I’ve been there for. I’m glad to have been reminded of that this week.

New opinion — continuing-violation doctrine doesn’t apply to probation-violation detainer by another jurisdiction

Randall v. City of Phila. Law Dep’t — civil rights — affirmance — Bibas

A man was arrested and prosecuted in Philadelphia; as a result of that prosecution, other jurisdictions filed detainers for violating his probation. When Philly dropped the charges , the man was released into the other jurisdictions’ custody and was held another four months. Later, the man sued Philadelphia for malicious prosecution. His suit was timely filed if the statute of limitations started when the other jurisdictions released him, but untimely if it started when Philadelphia released him; stated differently, it was timely if the continuing-violation doctrine applied to his custody by non-parties on the resulting detainers, untimely if it didn’t. Yesterday, the Third Circuit affirmed dismissal of his suit as untimely, holding that the continuing-violation doctrine did not apply.

Joining Bibas were Smith and Chagares. The case was decided without oral argument.

Judge Matey receives his commission

The Third Circuit’s newest member, Judge Paul Matey, took his judicial oath and received his commission yesterday. (He is not yet listed on the court’s website but will be added soon.)  Judge Matey will serve with the judge for whom he clerked, Judge Robert Cowen.

My thanks to Twitter user @fedjudges for alerting me to the news.

With Judge Matey joining the court, the Third Circuit has one vacancy remaining, the one created when Judge Vanaskie took senior status and then retired. No nomination for that vacancy has been announced.


New opinion on the collateral estoppel use of a prior criminal proceeding on a subsequent civil suit [updated]

U.S. ex rel. Doe v. Heart Solution — civil — partial affirmance — Roth

UPDATE: the court vacated this opinion and issued a new one on May 3.

To what extent do admissions made during a criminal conviction for fraud dictate the result of a subsequent civil suit based on the same fraud? For the individual who pled guilty, the Third Circuit held today, the district court was correct to grant summary judgment against her by treating her plea colloquy as admissions of all the elements of civil liability. But for the company that she owned, which was not party to the prior criminal case, the Third Circuit held that the district court erred in granting summary judgment using the same collateral estoppel theory. “[T]he District Court failed to dissect the issues that were determined in the criminal case from those that were not.”

Joining Roth were Jordan and Stearns D.Mass. by designation. Arguing counsel were Mark Cedrone of Cedrone & Mancano for the woman and the company and Charles Graybow of the N.J. U.S. Attorney’s office for the government.

Paul Matey is confirmed to the Third Circuit

The Senate just confirmed Paul Matey’s nomination to the Third Circuit. The announced vote was 54 to 45. Congratulations, almost-Judge Matey. He receives his commission and officially becomes a judge when he takes his judicial oath, which normally occurs a few days after confirmation.

New opinion

Komis v. Secretary U.S. Dep’t of Labor — employment — affirmance — Scirica

In an appeal from a jury verdict against a former OSHA employee who sued the Secretary of Labor for creating a hostile work environment in retaliation for her filing more than 60 (!) workplace complaints, the Third Circuit held that any error in instructing the jury on the standard for retaliatory-hostile-workplace-environment claims involving federal employees was harmless because the former employee couldn’t prevail under the standard she sought. Along the way, the court held that federal employees may bring Title VII retaliation claims.

Three and a half years went by between the oral argument and today’s opinion, which is unheard-of in the Third Circuit. The opinion doesn’t mention it, and I haven’t looked the the docket, but my offhand guess is that the appeal was stayed for a Supreme Court case or two that ended up not providing an answer.

Joining Scirica were Greenaway and Roth. Arguing counsel were Mark Sheffer of Birchrunville, Pa., for the former employee and Richard Mentzinger, Jr., for the government.

The Third Circuit is about to be the first federal appellate court flipped by Trump, but that’s not nearly as significant as it sounds

With Paul Matey on track to be confirmed as the Third Circuit’s newest judge this afternoon, there’s been a flurry of recent coverage (most recently this story by Patrick Gregory for Bloomberg Law) about how the Third Circuit is the first of the circuits to flip from a Democratic majority to a Republican one. I want to briefly explain why I believe this flip is more symbolic than meaningful.

Let’s first get clear about what “flip” they’re referring to. The Third Circuit has 14 seats, which means that at full strength it has 14 active judges plus an undefined number of senior judges. When President Trump took office, it had 12 active judges. Of these 12, 7 were nominated by Democratic presidents (Judges McKee, Ambro, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo) and 5 by Republican presidents (Chief Judge Smith and Judges Fisher, Chagares, Jordan, and Hardiman). Since then, Judge Fisher took senior status and Judge Vanaskie retired, while Judges Bibas and Porter have been confirmed and Matey is about to be. Once Matey joins the court, then, there will be 6 active judges nominated by Democratic presidents and 7 by Republicans, with 1 opening left.

Those changes, I suspect, mean the Third Circuit has become somewhat more conservative since Trump took office. That is, going from [Fisher + Vanaskie + 2 vacant seats] to [Bibas + Porter + Matey + 1 vacant seat + senior Fisher] probably moves the court to the right overall.

That said, I believe the actual impact of that shift will be modest, and that it will have little to do with the so-called flip in majority control. I believe this for a number of reasons:

  • only a minuscule number of cases are decided en banc;
  • since 2010, a grand total of four Third Circuit en banc cases were decided by one- or two-vote majorities, and the conservative position prevailed in by far the most high-profile of them, the Binderup Second Amendment case;
  • the Third Circuit has a passionately collegial identity that makes it disinclined to decide ideologically charged cases by bare en banc majorities;
  • almost all circuit appeals are decided by three-judge panels, so there’s a large element of chance in whether any particular panel reflects the court’s overall balance;
  • panels are composed of active, senior, and visiting judges, and the Third Circuit has eight senior judges regularly sitting;
  • 6 of the court’s 8 sitting senior judges were nominated by Republican presidents, versus only 2 nominated by Democrats;
  • of the three nominated by President Trump, only Judge Porter had a notably ideological paper trail, and
  • most importantly, the party of the nominating president is a substantially less-reliable predictor of circuit judges’ voting than it is of Supreme Court justices’ voting.

A flip in the Supreme Court’s majority would be a big deal. All nine justices decide every case, so a majority flip could alter the outcome of every close one. But circuit courts function entirely differently, so an active-judge-majority flip will change the outcome in a vastly smaller proportion of its cases, and it will do so demonstrably and visibly even less.

To be clear, I’m not suggesting that commentators spotlighting the Third Circuit’s flip are wrong or disingenuous. Politically, it encapsulates the rapidly changing composition of the federal judiciary under President Trump and Senate Majority Leader McConnell. In my view, reporting and commenting on the Third Circuit’s flip is appropriate. But, for lawyers practicing in the Third Circuit, it is important to realize that the flip means little for them.

The Third Circuit has been a centrist court for decades, and I don’t expect this flip to change that.

Matey Senate confirmation vote scheduled for tomorrow afternoon

The Senate this evening invoked cloture on the Third Circuit nomination of Paul Matey, by a vote of 55 to 44.

Matey’s Senate confirmation vote is scheduled for tomorrow afternoon at 2:30.

New opinion

Kamal v. J. Crew — civil — reversal — Scirica

A federal statute bars retailers from printing more than the last five digits of credit card numbers on receipts. A J. Crew consumer discovered that his receipts included the first six numbers of his credit card, so he sued. The district court dismissed with prejudice for lack of standing due to lack of concrete injury. The Third Circuit affirmed the dismissal under Spokeo and its progeny, joining the majority in a circuit split, but held that it was error to dismiss with prejudice because the district court lacked jurisdiction.

Joining Scirica were Chagares and Rendell. Arguing counsel were Marvin Frank of New York for the consumer and Andrew Bunn, formerly of DLA Piper, for J. Crew.

Collegiality and credibility, Hemingway and statements regarding oral argument: two Third Circuit judges share their advocacy insights

Third Circuit Chief Judge D. Brooks Smith and Judge Stephanos Bibas shared guidance on appellate advocacy yesterday, and I feel sorry for anyone who wasn’t there.

The two judges presented at a CLE program at the courthouse co-sponsored by the Third Circuit Bar Association and the Philadelphia chapter of the Federal Bar Association. [Disclosure: along with Nilam Sanghvi and Rick Haggerty, I was one of the event’s organizers.]

A few of the points that stood out to me:

  • Both judges emphasized the Third Circuit’s collegiality. Judge Bibas said he realized upon joining the court that it’s reputation was “not just advertising,” it indeed is an “intensely collegial place.” Chief Judge Smith described the court’s collegiality as “extraordinary” and something he believed in with “almost religious intensity.” Any lawyer familiar with the Third Circuit knows it lacks the interpersonal fireworks of some other courts, but hearing the two judges talking about it yesterday drove home for me in a new way how central its collegiality is to the Third Circuit’s identity.
  • Chief Judge Smith described how he “enjoy[s] a really good brief.” (Every lawyer in the room secretly knew it was their briefs he had in mind.) He said he wakes up early, puts on coffee, and settles in with his dog to read briefs, and when it’s an excellent brief he “genuinely enjoy[s] it.” He wryly observed that he prefers briefs whose sentence structure is modeled more on Hemingway than Faulkner.
  • Judge Bibas spoke of the importance of repeat players protecting their credibility. He suggested counsel take on their cases’ weaknesses head-on instead of trying to hide them. He also encouraged lawyers to use an understated, respectful tone, honoring the “intense presumption” that people coming to the court offer their arguments in good faith. Later, he observed that lawyers who file briefs with shrill, intemperate language are less likely to get oral argument because the judges are less confident their arguments will assist them.

And a few smaller-bore points:

  • Chief Judge Smith prefers it when lawyers cite state-court sources as authority for what state law is. Citing federal cases for the meaning of state law strikes him as disrespectful to state courts, but he admitted being sure he was an outlier on this point.
  • When he was an advocate, Judge Bibas was a firm believer in oral argument moots, holding five or six of them for one case.
  • Chief Judge Smith mentioned that he does not see briefs that set out arguments why the court should grant oral argument in the case, and said this is something more lawyers could do. He explained that he didn’t mean a boilerplate request for argument, but rather explaining why counsel wants argument, something specific to the case or issue.

I’m sure my scribbled notes don’t let me do full justice to the judges’ comments, but it was a terrific program. The judges’ panel was ably moderated by Nancy Winkelman, formerly a top appellate practitioner at Schnader and currently interim head of the Philadelphia District Attorney’s office’s law department.

In addition to the two judges’ presentation, the program also included an attorney panel that was two-thirds dynamite, with certified superstars Elise Bruhl of the Philadelphia Law Department and Nilam Sanghvi of the Pa. Innocence Project, plus me. The lawyer panel was moderated gracefully by Chip Becker.

This program was the third in a continuing series of advocacy CLEs that the Third Circuit Bar Association is putting on in locations around the circuit, following similar events last year in Wilmington and Harrisburg. Next up? To be decided.

We’re fortunate in the Third Circuit to have judges who engage with the bar and share their perspectives on how to improve the quality of representation that litigants receive. Lawyers, don’t pass up these real opportunities when they come.

New opinion — Judge Porter’s first precedential opinion

Madar v. U.S. Citizenship & Immigration Svcs. — immigration — affirmance — Porter

The Third Circuit today rejected an immigrant’s argument that he was entitled to citizenship because his father had been a citizen and constructively satisfied the statutory requirements for retaining citizenship. The opinion assumed that the father retained his citizenship but held that any citizenship did not transfer to the son, joining other circuits in refusing to infer an equitable exception to the relevant statutory requirements.

The lucid opinion is the first precedential opinion authored by the Third Circuit’s newest judge, Judge David Porter.

Joining Porter were Greenaway and Shwartz. The case was decided without oral argument.

New opinion

U.S. v. Ayala — criminal — affirmance — Chagares

Yesterday the Third Circuit affirmed the conviction and 11-year sentence of a Virgin Islands woman who played a supporting role in the gunpoint robbery of a St. Thomas jewelry store. Her defense was that her involvement (securing plane tickets, hotel rooms, and a rental car for the robbers, sitting in the getaway car, and paying the robbers afterward) was the product of duress because she feared for her life and that of her brother at the hands of two violent men who told her to do it.

The court rejected a number of interesting challenges, including that D.V.I. courts lack jurisdiction to hear federal criminal cases and that D.V.I. judges lack authority serve after their 10-year terms have expired. The court rejected the defendant’s argument that certain evidence was erroneously excluded under Federal Rule of Evidence 403, but it noted that it was troubled that the district court did not give its reasoning on the record. Finally, the court upheld the district court’s decision to shackle her during sentencing based on the marshals’ view (the basis for which apparently was not discussed and is anything but obvious to this reader) that there was a security concern.

The court’s opinion presents the facts of the crime and the trial without comment, but, for me at least, it’s hard to read it without wondering whether justice was done here.

Joining Chagares were Hardiman and Restrepo. Arguing counsel were Joseph Diruzzo III of Florida for the defendant and Kim Chisholm for the government.

New opinions — two Speedy Trial Act reversals (!)

U.S. v. Reese — criminal — reversal — Ambro

“This is one of the rare cases in which the Speedy Trial Act … requires that we vacate a conviction and remand for dismissal of the indictment,” begins today’s first opinion.  And “rare” is both true and ironic, because today’s other opinion, issued by a different panel, does the same thing.

Here, with less than three weeks left on the defendant’s Speedy Trial Act clock, the district court continued the trial sua sponte for another two-and-a half months. The Third Circuit held that dismissal was required but left it to the district court to decide first whether re-prosecution would be allowed.

In a concurrence that, unusually, lists two judges as co-authors, Judges Ambro and Greenaway criticized five other circuits’ rulings that defendants can waive Speedy Trial Act claims by failing to seek dismissal on that basis in district court. The concurrence observed that waiver was not an issue here because the government had not raised it its brief or in oral argument.

Joining Ambro were Chagares and Greenaway. Arguing counsel were Jacob Schuman of the EDPA federal defender for the defendant and Michelle Olshefski of the MDPA U.S. Attorney’s office for the government.


U.S. v. Williams — criminal — reversal — Restrepo

The Third Circuit reversed on Speedy Trial Act grounds here, too, but in this case the panel directed the district court to dismiss with prejudice, precluding re-prosecution. The court joined three circuits in splitting with the Second Circuit and holding that “periods of unreasonable delay of more than ten days in the transport of a defendant to the site of a psychological examination conducted in the course of a proceeding to determine a defendant’s mental competency are non-excludable” for Speedy Trial Act purposes.

Joining Restrepo were Chagares (who sat on both panels) and Hardiman. Arguing counsel were Omodare Jupiter of the DVI federal defender for the defendant and Everard Potter of the DVI U.S. Attorney’s office for the government.


Close Third Circuit followers will note that today’s opinions were posted earlier than normal. The Court’s consistent practice is to post the day’s precedential opinions on its website around 12:35 (with rare late-afternoon postings, too), a couple hours after counsel receive them through ECF, but I stumbled upon today’s opinions around 10:30. I assume this earlier posting was a blip rather than a change in procedure, but we’ll see.

New opinion

Piasecki v. Bucks County Court — habeas — reversal — McKee

[Disclosure: as explained below, I assisted Peter Goldberger in representing the petitioner-appellant in this appeal.]

For a federal court to consider a habeas petition, the petitioner must be “in custody” at the time the petition is filed. Past cases have found custody to include parole restrictions, own-recognizance release pending appeal, and community service obligations. Today, the Third Circuit held that the requirements that come with registration under Pennsylvania’s Sex Offender Registration and Notification Act satisfy the habeas custody requirement because SORNA restricts registrants’ physical liberty in various ways, including banning computer internet access and requiring them to appear frequently at a state police barracks, in person. The court distinguished rulings from other Circuits involving other, less-restrictive sex-offender-registry statutes.

In an interesting footnote, the opinion focused more deeply on the condition banning computer internet access and observed that computer and internet bans are common, “Yet it is not at all clear that the judges imposing such sweeping  and unconditional bans appreciate the impact they would have if literally interpreted and enforced,” barring things like using an ATM, having a smartphone, navigating by GPS, or simply driving a late-model car. It noted with a lengthy stringcite that “many courts have struck down statutes or vacated sentences that impose broad bans on computer and internet usage.”

Joining McKee were Ambro and Restrepo. Arguing counsel were Stephen Harris of the Bucks County district attorney’s office for the Commonwealth and me for the petitioner — I had the privilege of arguing in place of Mr. Piasecki’s counsel, Peter Goldberger, who wrote the briefs, because he was out of state attending to a compelling family matter.

Two new opinions

US v. Island — criminal — affirmance — Scirica

A divided Third Circuit panel today answered a question that also has divided the circuits, holding that a criminal defendant’s term of supervised release is tolled while the defendant is absent from supervision as a fugitive. The majority reasoned that the relevant statutory text was silent on the matter and joined the Second, Fourth, and Ninth Circuits against the First.

Judge Rendell dissented, arguing that the text did answer the question and that the majority’s rule will prove burdensome for courts to apply.

Joining Scirica was Ambro, with Rendell dissenting. Arguing counsel were Keith Donoghue of the EDPA federal defenders for the defendant and Bernadette McKeon of the EDPA USAO for the government.


Sköld v. Galderma Labs. — civil — partial reversal — Jordan

The Third Circuit vacated a jury’s verdict in favor of an investor for unjust enrichment in a trademark dispute with a drug company. The investor’s claim was premised on his ownership of the mark, and the court held that the plain terms of the relevant contract gave ownership of the mark to the company. The interpretative issue boiled down to the contract’s use of “hereof and thereof” instead of “hereof or thereof,” and somewhere that contract drafter now feels either euphoric or terrible, depending.  The court also rejected the investor’s claims that he was entitled to directed verdict on other claims.

Joining Jordan was Chagares; Vanaskie had been the third judge on the panel before he retired. Arguing counsel were Bruce Clark of Clark Michie for the investor and Richard Rochford Jr. of New York for the company.


Register now for Effective Third Circuit Advocacy, featuring Chief Judge Smith and Judge Bibas, 3/6 in Philadelphia

Next Wednesday in Philadelphia, Third Circuit Chief Judge D. Brooks Smith and Judge Stephanos Bibas will be the featured presenters at a CLE program entitled Effective Third Circuit Advocacy. The event is co-sponsored by the Third Circuit Bar Association and the Philadelphia chapter of the Federal Bar Association. Registration is open now at this link.

The details:

  • Wednesday, March 6 from 3 to 5 with a wine-and-cheese reception afterwards
  • Ceremonial courtroom (first floor), James Byrne U.S. Courthouse, 601 Market Street
  • 2 hours Pennsylvania substantive CLE credit, approval pending
  • Registration is $25 for members of 3CBA and/or FBA, $50 for non-members. Discounted registration is available for law students and public-sector and public-interest attorneys.

Besides Chief Judge Smith and Judge Bibas, also presenting will be Chip Becker of Kline & Specter, Elise Bruhl of the Philadelphia Law Department, Nilam Sanghvi of the Pennsylvania Innocence Project, Nancy Winkelman of the Philadelphia District Attorney’s office, and me.

This is the third in a series of advocacy CLE events that 3CBA has co-sponsored. The first two events—in Wilmington, Delaware, featuring Judges Jordan and Roth, and in Harrisburg, Pennsylvania, featuring Judges Vanaskie and Krause—were both fantastic. If you’re able to attend this one, you’d be foolish not to.

CLE registration is capped, so register now.

New opinion — FTC’s suit against drug maker was filed too late [updated]

FTC v. Shire Viropharma — civil — affirmance — Smith

The Federal Trade Commission brought a federal action against a drug company, alleging that the drug company wrongfully delayed approval of generic competition to its lucrative drug through a string of meritless FDA filings. The FTC brought the action over 4 years after the company’s challenged actions, under a statute that permits the FTC to sue a company that “is violating” or “is about to violate” the law. Today, the Third Circuit held that this statutory provision does not authorize suit based on a long-past action plus a reasonable likelihood of recurrence, affirming judgment in favor of the company.

Here’s the (exceptional, in my view) introduction:

Shire ViroPharma, Inc. … manufactured and marketed the lucrative drug Vancocin, which is indicated to treat a life-threatening gastrointestinal infection. After Shire got wind that manufacturers were considering making generic equivalents to Vancocin, it inundated the United States Food and Drug Administration (“FDA”) with allegedly meritless filings to delay approval of those generics. The FDA eventually rejected Shire’s filings and approved generic equivalents to Vancocin, but the filings nonetheless resulted in a high cost to consumers—Shire had delayed generic entry for years and reaped hundreds of millions of dollars in profits. Nearly five years later—and after Shire had divested itself of Vancocin—the Federal Trade Commission (“FTC”) filed suit against Shire in the United States District Court for the District of Delaware under Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b). The FTC sought a permanent injunction and restitution, alleging that Shire’s petitioning was an unfair method of competition prohibited by the Act. Shire moved to dismiss, arguing that the FTC’s allegations of long-past petitioning activity failed to satisfy Section 13(b)’s requirement that Shire “is violating” or “is about to violate” the law. The District Court agreed and dismissed the case.

On appeal, the FTC urges us to adopt a more expansive view of Section 13(b). According to the FTC, the phrase “is violating, or is about to violate” in Section 13(b) is satisfied by showing a past violation and a reasonable likelihood of recurrent future conduct. We reject the FTC’s invitation to stretch Section 13(b) beyond its clear text. The FTC admits that Shire is not currently violating the law. And the complaint fails to allege that Shire is about to violate the law. We will therefore affirm the District Court’s judgment.

And the notable concluding paragraph:

The FTC’s improper use of Section 13(b) to pursue long-past petitioning has the potential to discourage lawful petitioning activity by interested citizens—activity that is protected by the First Amendment. Because we affirm the District Court’s judgment dismissing the complaint, we need not address the issue further but suggest that the FTC be mindful of such First Amendment concerns.

Joining Smith were McKee and Fisher. Arguing counsel were Matthew Hoffman for the FTC and Steven Reed of Morgan Lewis for the drug company.

Update: here is a provocative analysis by Debevoise, entitled “The Third Circuit Sharply Curtails the FTC’s Preferred Enforcement Power.” Highlights:

On February 25, 2019, the United States Court of Appeals for the Third Circuit upset
decades of Federal Trade Commission (FTC) practice by significantly limiting when the
FTC can bring competition and consumer protection enforcement actions in federal



The FTC could seek a rehearing or a rehearing en banc from the Third Circuit, and may
ultimately seek Supreme Court review. But given Shire’s bad facts and a strong
possibility that the current Supreme Court would agree with the Third Circuit’s “plain
language” analysis, the FTC may not want to risk extending this ruling beyond the
Third Circuit. The FTC may instead prefer to seek legislative intervention. Many FTC
reform bills have been introduced in Congress in recent years, and this decision could
lead to the introduction of additional bills in the 116th Congress.

Section 13(b) has been a cornerstone of the FTC’s consumer protection and competition
enforcement efforts. This decision will have immediate, far-reaching ramifications on
that strategy’s use in the Third Circuit for both antitrust and consumer protection
(including false advertising and privacy/cybersecurity) matters.

New opinion — debt purchasers who outsource collections are subject to FDCPA

Barbato v. Greystone Alliance — civil — affirmance — Krause

The Fair Debt Collection Practices Act aims to protect consumers by regulating the actions of “debt collectors,” defined to include those “in any business the principal purpose of which is the collection of any debts.”  A company that purchased charged-off consumer debt and then contracted out to another company the job of actually haranguing the consumers, argued that it was not subject to the FDCPA because it was not a debt collector. Today, the Third Circuit disagreed, relying mainly on past circuit precedent and the statute’s text.

Grammarians will rejoice at this footnote:

At both oral argument and in its supplemental briefing, Crown argued that the word “collection” is a verb. It is not. It is a noun. See Collection, Webster’s Third at 444 (denoting with the abbreviation “n” that the word being defined is a noun).

Joining Krause were Hardiman and Bibas. Arguing counsel were Matthew Rosenkoff of Atlanta for the debt collectors and Daniel Edelman of Chicago for the consumer.

New opinion

In re: Titus — bankruptcy — affirmance — Ambro

The opening paragraph:

When his old law firm broke its lease, attorney Paul Titus was on the hook for millions of dollars in unpaid commercial rent. The landlord tried to recover the rent by targeting the wages Mr. Titus was earning at his new firm. But Mr. Titus’s wages never passed through his hands alone; instead, they were deposited by his new firm directly into a bank account owned by both Mr. Titus and his wife as tenants by the entireties.

Not the first paragraph Mr. Titus was hoping for, I suspect. It continues:

Eventually, Mr. Titus was forced into bankruptcy and the landlord’s claim became a claim of the bankruptcy trustee. Now, after two trials in the Bankruptcy Court and two appeals to the District Court, we reach three conclusions. First, Mr. and Mrs. Titus are liable for a fraudulent transfer. When the wages of an insolvent spouse are deposited into a couple’s entireties account, both spouses are fraudulent transferees. Second, as for the precise measure of the Tituses’ liability, the bankruptcy trustee waived any challenge to the method used by previous courts to calculate fraudulent-transfer liability. Going forward, however, we clarify how future courts should measure liability when faced with an entireties account like the Tituses’ — an account into which deposits consist of both (fraudulent) wages and (non-fraudulent) other sources, and from which cash is spent on both (permissible) household necessities and (impermissible) other expenditures.1 Until now, a trustee somehow had to show that wage deposits were impermissibly spent on non-necessary expenditures, even though wage and nonwage deposits had become commingled in the account. Rather than expect a trustee to trace the untraceable, future courts should generally presume that wage deposits were spent on non-necessary expenditures in proportion to the overall share of wages in the account as a whole. Third, in evaluating the Bankruptcy Court’s application of the method in play at the time of its decision, we perceive no clear error. Thus we affirm.

In the footnote, the opinion noted that Judge Shwartz did not join the opinion’s discussion of the pro rata approach because it was unnecessary given the court’s finding of waiver and that instead choosing the liability-calculation method should be left to trial judge.

This case is one of many that arose out of the 1999 dissolution of the Pittsburgh firm Titus & McConomy. Third Circuit Judge Hardiman was a partner there from 1996 to 1999 and was a party to at least one of those other cases. In 2016, another Titus & McConomy appeal was decided by three non-Third Circuit judges, presumably because the entire court had recused.

Joining Ambro were Shwartz (with the exception noted) and Fuentes. Arguing counsel were Douglas Campbell of Campbell & Levine for the lawyer and his wife and Neal Levin of Chicago for the bankruptcy trustee.

Two new opinions

Bryan v. Gov’t of Virgin Islands — civil — affirmance — Hardiman

The Third Circuit today rejected various challenges by a Virgin Islands government employee to a territorial law designed to encourage more-senior employees to retire by making them pay 3% more into the retirement system than other employees have to.

Joining Hardiman were Chagares and Restrepo. Arguing counsel were Richard Rouco of Alabama for the employee and Su-Layne Walker for the government.


Contreras Ayabar v. Secretary DHS — immigration — affirmance — Ambro

A provision of the Immigration and Nationality Act authorizes the government to grant permanent-resident status to a child of an adult permanent resident. Here, a mother applied for that status for her son when he was still a minor, but while the application was pending he turned 21, and for that reason the DHS denied it. Today, the Third Circuit rejected the mother’s and son’s challenge to this denial, holding that age eligible must be assessed the time of the agency’s action, not when the application is filed, in light of the unambiguous language of the applicable statute.

Joining Ambro were Scirica and Rendell. Arguing counsel were Benjamin Zhu of Davis Polk for the mother and son and Alexander Halaska for the government.

Third Circuit rules against Trump administration in major sanctuary-cities appeal

City of Philadelphia v. Attorney General of the United States — civil — partial affirmance — Rendell

In a stinging loss for the Trump administration that they’ll surely ask the Supreme Court to review, the Third Circuit today rejected the Attorney General’s effort to deny federal grant money to Philadelphia in an effort to coerce the city into help federal law-enforcement “detain[] and remov[e] aliens upon their release from local criminal custody.” The court held that the AG lacked statutory authority to set policy conditions on the grant money:

Underlying this question, and potentially complicating its resolution, is the stark contrast in the priorities of the City and those of the Executive Branch regarding immigration policy. In resolving the discrete legal question before us, however, we make no judgment as to the merits of this policy dispute. Rather, our role is more confined, and our focus is only on the legality of the particular action before us.

Concluding that Congress did not grant the Attorney General this authority, we hold that the Challenged Conditions were unlawfully imposed.

Today’s ruling was a disaster for the Trump administration’s attack on sanctuary cities. The only sliver of good news for the administration was that the panel vacated the district court’s requirement for a judicial warrant to transfer a “criminal alien” to federal custody, holding that this injunction went beyond the bounds of the complaint.

My crystal ball says that the government is certain to ask the Supreme Court to grant certiorari, and that they’re quite unlikely to have the votes for rehearing en banc.

Joining Rendell were Ambro and Scirica. Arguing counsel were Neal Katyal of Hogan Lovells for the city and Katherine Allen for the government. Video of the oral argument—the best Third Circuit oral argument I’ve ever seen—is in my argument-compilation post here.

Two new opinions

Dessouki v. Secretary — immigration — affirmance — Bibas

The Third Circuit denied an immigrant’s petition for review today. The applicable statute offers a path to citizenship to immigrants whose custodial parent becomes a naturalized citizen if there has been “a legal separation” of his parents. But here the immigrant’s parents never married, and the court held that without marriage there cannot be a legal separation.

Joining Bibas were Greenaway and Fuentes. Arguing counsel were Douglas Grannan of Philadelphia for the immigrant and Elizabeth Fitzgerald-Sambou for the government.


McKinney v. Univ. of Pittsburgh — civil — reversal — Krause

The Third Circuit today held that a university faculty contract provision guaranteeing faculty an annual salary increase does not give them a property interest in the their salary not being reduced.

Joining Krause were Hardiman and Bibas. Arguing counsel were Kim Watterson of Reed Smith for the university and Sean Ruppert of Kraemer Manes for the professor. The opinion also acknowledged an “insightful and well-researched” amicus brief on behalf of other universities by Shannon Farmer and Burt Rublin of Ballard Spahr.


Two new opinions, including Workman

Workman v. Superintendent — habeas corpus — reversal — Fuentes

In an amended opinion, the Third Circuit today held that a habeas petitioner had shown that his trial counsel provided ineffective assistance of counsel by failing to mount a defense and, while that issue was procedurally defaulted, his post-conviction counsel’s ineffectiveness excused the default. [As I’ve disclosed in prior posts about this case, I did some minor consulting for petitioner’s counsel.]

In the court’s original opinion (and again in an amended one that it also later withdrew) the panel had presumed prejudice from trial counsel’s errors under US v. Cronic, but today the court held that the petitioner had shown prejudice under Strickland v. Washington. I wrote that the prior amended opinion was “puzzling” and that “something seems not quite right here,” and urged readers to stay tuned, so today’s ruling isn’t surprising and strikes me as substantially sounder than the previous ones. So, all’s well that ends well.

Joining Fuentes were Ambro and Restrepo. Arguing counsel were Marshall Dayan of the WDPA FD for the petitioner and Catherine Kiefer of the Philly DA’s office for the superintendent.


Patterson v. Pa. Liquor Control Board — civil — affirmance — Restrepo

The Third Circuit held that the Pennsylvania Liquor Control Board is an arm of the state (arm of the Commonwealth?) entitled to Eleventh Amendment sovereign immunity, affirming dismissal of a former employee’s civil rights suit against it.

Joining Restrepo were Greenaway and Bibas. Arguing counsel were Charles Sipio of Kolman Ely for the former employee and Claudia Tesoro of the PA Attorney General’s office for the LCB.

In Workman, may the third time be the charm

A Third Circuit panel this week granted panel rehearing—for a second time—in Workman v. Superintendent, a case in which the panel originally granted relief for ineffective assistance of counsel, but did so by presuming that counsel’s error prejudiced the defendant instead of requiring a prejudice showing (in habeas-speak, by applying Cronic not Strickland). I explained matters in this post after the second opinion. As I noted there, the second opinion was perplexing in light of the first rehearing petition, so the panel’s decision to grant rehearing again is not as surprising as it might seem.

[I’ll disclose again that I’ve done some minor consulting for counsel for the petitioner.]

There may be an impulse to view panel-rehearing grants in a negative light, but, as I’ve written here before, that’s not how I see them. I believe the panel rehearing serves a valuable function and I applaud the court’s willingness to take a second (or third!) look where needed to be confident of getting it right.

New opinion

US v. Garner–criminal–affirmance–Ambro

Today, the Third Circuit affirmed a defendant’s convictions for bank robbery and related crimes, rejecting his challenge to the sufficiency of the evidence. The court joined other circuits in holding that a defendant cannot be criminally liable for conspiring with a government informant.

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

Two new opinions, including an emphatic sentencing reversal

US v. Chapman–criminal–reversal–Restrepo

In a calmly scalding opinion, the Third Circuit today vacated a criminal sentence and remanded for resentencing by a different district judge because the sentencing judge refused to postpone sentencing despite knowing that the defendant’s lawyer had failed to notify the man beforehand of his sentencing hearing, which deprived the man of the chance to offer witnesses and letters seeking sentencing leniency.

When an opinion chooses to quote the district judge’s “pique” and “irritation,” when it says “it is plain the District Court erred” and it “unfairly” deprived the defendant’s rights, when it describes a position the sentencing judge rejected as “manifestly reasonable,” when it states that “the District Court improperly compromised the appearance of fairness” and describes this “appearance of unfairness” as “especially stark,” and when it orders resentencing by a different judge, I’d say the court is sending a stern message.

I’d guess that the court is aware that the district judge in question has been mentioned (here, for example) as a potential nominee to fill Judge Vanaskie’s seat, and also that a 2017 non-precedential CA3 opinion also was critical of a ruling by same district judge. If those guesses are right, today’s opinion is all the more remarkable.

Joining Restrepo was McKee; Vanaskie had been the third judge on the panel prior to his retirement. Arguing counsel were Candace Cain of the WDPA defender for the defendant and George Rocktashel of the MDPA AUSAs for the government.


US v. Daniels–criminal–affirmance–Cowen

The Third Circuit today affirmed a defendant’s career-offender sentence, holding that attempted drug dealing qualifies as a serious drug offense under the ACCA and that “the scope of attempt and accomplice liablity under Pennsylvania law is coextensive with the meaning of those terms under federal law.”

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

New opinion — Third Circuit strikes down Delaware’s requirement that state judges be Democrats or Republicans

Adams v. Governor of Delaware–civil–partial reversal–Fuentes

UPDATE: the Third Circuit vacated this opinion on panel rehearing and issued a new one, link here.

The Delaware Constitution sets out a unique method for selecting state-court judges: the Governor appoints them (based on recommendations from nominating commissions, and without legislative involvement) subject to a requirement that the judges of each court contain a balance of Democrats and Republicans. For example, ” three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.” The goal was to create a bipartisan state judiciary, but one effect was to exclude candidates who aren’t members of either of the two major parties.

A Delaware lawyer who is registered as an Independent challenged the political-affiliation requirement as a violation of his First Amendment rights. The district court denied his challenge, ruling that restricting judgeship eligibility based on political affiliation was allowed because judges qualify as policymakers. Today the Third Circuit reversed, holding that judicial officers, whether appointed or elected, are not policymakers. In so holding, the court split with the Sixth and Seventh Circuits. The court also rejected the governor’s argument that the state’s interest in political balance supports its requirement, holding that even if the interest qualifies as vital the rule is not narrowly tailored to meet it. The court also rejected the Governor’s challenge to standing.

Judge McKee concurred, joined (unusually) by both of the other judges on the panel, emphasizing that the Delaware judiciary is highly regarded and expressing confidence that the state can preserve its esteemed legal culture without the current political-affiliation requirement.

Joining Fuentes were McKee and Restrepo. Arguing counsel were David McBride of Young Conaway for the challenger and David Finger of Finger & Slanina for the governor.

Two new opinions

Roman v. City of Newark — civil rights — partial reversal — Ambro

A man was arrested for possession of illegal drugs, but the charges were dropped when the search ruled unlawful. The man then sued the officers and the city for violating his civil rights. The district court dismissed his claims, but today a divided Third Circuit majority reversed in part, holding that the man’s claims against the city based on a custom of unconstitutional searches and failure to train were adequately pled.

Joining Ambro was Jordan, who also authored a short concurrence. Hardiman dissented, faulting the majority for mentioning facts not alleged in the complaint and disagreeing with the majority as to the custom-of-searches (but not the failure-to-train) theory, and strenuously. Arguing counsel were Justin Santagata of Kaufman Semararo for the plaintiff and Wilson Antoine for the defendants.


Bedoya v. American Eagle Express — civil — affirmance — Shwartz

The Third Circuit rejected an employer’s argument that a federal statute pre-empted New Jersey law in defining employees and independent contractors, allowing a suit by delivery drivers alleging that the employer misclassified as contractors to proceed.

Joining Shwartz were Greenaway and Bibas. Arguing counsel were Harold Lichten for the plaintiffs, Joseph DiBlasio of Jackson Lewis for the employer, and Christopher Weber for New Jersey as amicus.

My advice to lawyers preparing for their first-ever oral argument

Oral arguments are like childbirth: it may feel wonderful once it’s over, but before and during it’s mostly hard as hell. If you’re preparing for your first oral argument, you may be feeling all kinds of un-wonderful: overwhelmed, anxious, and increasingly certain you’re about to be exposed to the world as a rare dullard. And alive as never before to each and every path to losing your case.

But hey: don’t worry. That’s normal! Healthy, even. Plenty of successful appellate advocates feel that way before every single argument. I do. The worst oral argument I ever gave was the one I felt most comfortable about beforehand. In his indispensable book on appellate oral advocacy, appellate star David Frederick says it thus:

A second wave of apprehension usually occurs after the first moot court when thoughtful colleagues have asked many incisive questions that the advocate—who thought he was prepared—does not know how to answer. While having all of those questions out on the table should become a source of great reassurance, nothing can quite match the feeling of helplessness that arises when question after question comes hurtling in without a coherent legal response. That wave then usually produces a serious emotional trough, as the weaknesses of the advocate’s side of the argument appear glaringly obvious and the strengths of the other side’s theory much more apparent than when the briefs were filed. If the advocate does not go through at least one of these emotional troughs during the preparation process, he probably is not applying a sufficiently objective analysis to his own case.

I urge you to take that last sentence to heart.

Anyway, if you’re preparing for your first oral argument, I have a few suggestions. Think of this as, “I already committed all the blunders so you don’t have to.” (Back in 2017, I wrote a post with advice for appellate lawyers used to arguing in other courts on what’s different about the Third Circuit—link here. You may find that post helpful too, but that one was aimed at experienced appellate folks and this one is written with newbies in mind.)

My advice:

  • Learn from others. Go and watch an argument session in person. Watch video of arguments. Listen to the audio of these arguments by some first-rate advocates. You’ll be amazed how much you’ll pick up just by paying attention to what works and what doesn’t.
  • Don’t burn out beforehand. Oral argument is like a marathon race where you’re only timed for the final 400 meters. Many novice advocates panic early, achieve peak mastery well before the argument, and arrive at the courtroom worn out, tired of the sound of their own voice, and fuzzy on the finer points. Even if you find out way in advance that argument has been granted, keep in mind that intense focus in the days beforehand is far more important than starting early. And get as much sleep as you can the several days before the argument, since most of us sleep like crap the night before.
  • As you prepare, focus on anticipating hard questions and preparing direct, clear answers. You’re not giving an interrupted speech, you’re having a formal, stylized conversation with three people you’re trying to persuade. During the course of the argument, the judges will do you a spectacular favor: they’ll tell you exactly what reasons might keep them from ruling in your client’s favor. And your #1 job—truly, more important than remembering to pick your nose as few times as possible while at the podium—is to hear the concerns the judges are raising and then to give your most persuasive responses to them. Not to wriggle past the tough questions so that you can get back to what you want to say. And you can only do that if you put in the work beforehand to figure out what those questions are likely to be and how best to answer them.
  • Prepare multiple layers of responses. While it’s important to get your best points out directly and clearly, it’s also important to have a back-up plan. Sometimes that point you thought was rock-solid instead goes over like a lead balloon. When judges aren’t satisfied with your initial response and keep pushing, you need to be ready to give them something more and/or something different. They’re telling you they’re not persuaded on this point yet, so here you need to go deeper, which means you need to have multiple layers of responses prepared.

Here’s what I mean. Say one of your main points is that trial counsel’s failure to object to a trial error was deficient performance, and your strongest argument is that the error should have been obvious because it was based on a Supreme Court case decided the year before. So you make that point in a couple sentences. If the panel doesn’t push back, great, you go on to your next main point. But if the panel does push back, you’re ready. In your pocket you’ve got other good arguments on this point—say, why that Supreme Court case isn’t distinguishable, how other circuits have ruled the way you want, how the lawyer’s other blunders show that this error wasn’t intentional, and how the other side implicitly conceded the point in district court. If the judges keep pressing you, you’re able to keep advancing the ball.

If you didn’t prepare multiple layers of responses on your key points, then when your first punch doesn’t land you’re stuck repeating yourself like a broken robot, mumbling something about standing on your briefs, hollering “If you say so, Judge!,” or lamely changing the subject while your face goes full red beet and the judges try to sneak each other knowing eye-rolls.

  • Do at least one moot. Lots of lawyers (including some I respect highly) don’t do moots before circuit arguments, but I believe moots (that is, practice arguments with other lawyers playing the role of the judges peppering you with questions) are essential for all of us not named Charles Alan Wright. More to the point, I believe if you don’t moot your first oral argument, then you deserve every one of the the-law-clerks-in-the-courtroom-are-wincing moments you’re so very likely to produce. I suggest two moots, the first one three to five days before your argument and the second the morning before.
  • Focus on nailing the basics. When a judge speaks, you don’t. When a judge asks a question, answer it directly and immediately: “Yes, because …” not, “I’ll get to that next …” When you don’t know an answer, say so. Breathe. And, perhaps most importantly, treat opposing counsel (and the district court judge, if you’re the appellant) with absolute professionalism: explain why their position is wrong, not why they’re bad people out to distort the record and hoodwink the court.
  • At least get their names right. Mispronouncing a judge’s name may irritate the judge and surely will earn you the wrath and scorn of the judge’s clerks. Here are the ones I’ve heard mangled:
    • Chagares — shuh GARR iss (rhymes with ‘the Harris,’ not ‘the Norris’)
    • Krause—rhymes with ‘house’
    • Restrepo—ruh STREPP oh
    • Bibas—BEE biss
    • Scirica — suh RICK uh
    • Cowen — first syllable rhymes with ‘now,’ not ‘go’
    • Nygaard — NYE gard (first syllable rhymes with ‘hi’)

For more comprehensive coverage of Third Circuit practice, there’s a detailed Third Circuit practice manual and a shorter (and free) online practice guide put out by the circuit bar association. Both are outstanding. The governing rules (federal appellate rules, local appellate rules, and circuit internal operating procedures) are all linked here. For authoritative answers to specific procedure questions, the circuit clerk’s office is a lifesaver.

Oral argument is hard, and preparing for your first one can feel overwhelming. But if you put in the work and commit to getting the fundamentals right, you’ll give the judges and your client what they need, and you might even make it out alive.

Two new opinions

Jean Louis v. AG — immigration — affirmance — Bibas

Judge Bibas has been a judge for only about a year, but his opinion-writing style already is instantly recognizable. Radical clarity, with lots of short sentences. I can’t think of any other circuit judge who could have written this introduction:

A non-lawyer “immigration expert” advised Dieuland Jean Louis that he could miss his asylum hearing without consequence. I App. A6-7. So he did. But the “immigration expert” was wrong—and an immigration judge relied on Jean Louis’s absence to order his removal in absentia. Id.

Jean Louis now contends that we should reopen that order because the non-lawyer’s advice qualifies as an exceptional circumstance. But that is not the law. Exceptional circumstances must be grave and beyond the applicant’s control. And holding the hearing without Jean Louis did not violate due process because he had the opportunity to attend. He chose not to.
So we will deny his petition for review.

Joining Bibas were Greenaway and Shwartz. The case was decided without oral argument.


FTC v. Penn State Hershey Medical Ctr. — civil — affirmance — Nygaard

The Third Circuit today rejected Pennsylvania’s argument that it was entitled to attorney’s fees for its work in derailing a hospital merger, concluding that the basis for the state’s win was a federal statutory provision that did not provide for attorney-fee recovery. The opinion ran a brisk 18 paragraphs, which is less than a paragraph per lawyer listed in the caption.

Joining Nygaard were Shwartz and Rendell. Arguing counsel were Howard Hopkirk for Pa. and William Coglianese of Jones Day for the hospitals.

Two new opinions

G.S. v. Rose Tree Media School Dist. — civil / education — affirmance — per curiam

Today the Third Circuit granted a motion to publish a previously unpublished opinion. Interestingly, the motion was filed by amici, not by a party. The non-published opinion had been authored by Judge Vanaskie, who has since retired, so the motion to publish was granted by the other two panel members and the opinion was issued as an unsigned per curiam.

The appeal arose from a suit brought under the McKinney-Vento Homeless Assistance Act, in which a boy and his parents alleged that a school district’s refusal to enroll the boy was illegal. In a previous suit between the parents and the district, the school had agreed to pay for the boy to go to a different school for one year, and the parents agreed to waive prior and also agreed to make no future McKinney-Vento claims. The court today held that the future-claim waiver was unenforceable for lack of consideration in light of a recitation of consideration in the settlement agreement which only referred to the prior claims, which strikes me as debatable. The court also rejected the district’s argument that the student was not homeless because he was living along with his family in his grandparents’ house for several years, given statutory language included as homeless children living doubled up with no durational limit.

The panel was Ambro and Jordan (and originally included Vanaskie). Arguing counsel were Katherine Meehan of Raffaele Puppio for the district and Michael Raffaele of Kershenbaum & Raffaele for the student and parents.


US v. Goldstein — criminal — affirmance — Roth

The Third Circuit held that the government’s warrantless use of cell-site location data violated the Fourth Amendment, reversing its prior ruling on that point in this case (captioned US v. Stimler, link here) in light of the Supreme Court’s intervening ruling in Carpenter. But the court affirmed the conviction again, this time under the good-faith exception.

Roth was joined by Chagares and Restrepo. Arguing counsel were Aidan O’Connor of Pashman Stein for the defendant and Norman Gross and Glenn Moramarco for the government.

Another stealth amended opinion

Late Friday the court issued an amended panel opinion in US v. Hird, the appeal from the Philadelphia traffic-court convictions that it originally decided last August, link here. Unfortunately, the amended opinion does not indicate what it changed in the 53-page opinion (the outcome appears the same), nor does it indicate in the opinion’s caption that it’s an amended opinion. Again. (The letter “a” at the end of the opinion pdf’s filename is the only giveaway in the opinion itself.)

New opinions

US v. Wright — criminal — affirmance — Shwartz

Today, a fractured Third Circuit panel reversed a district court’s order dismissing a criminal indictment with prejudice after two trials and two hung juries. The lead opinion held that the district court lacked inherent authority to dismiss the indictment absent misconduct or “any prejudice beyond the general anxiety and inconvenience of facing a retrial.”

Judge McKee concurred in the judgment and Judge Nygaard dissented. Although both separate opinions refer to Judge Shwartz’s opinion as a majority opinion, at first blush I read Judge McKee’s rationale as narrower than Judge Shwartz’s so it is unclear to me which opinion will be viewed as binding precedent by future panels.

The case originally was decided yesterday without Judge McKee’s opinion.

Arguing counsel were Donovan Cocas of the WDPA US Attorney’s office for the government and Renee Pietropaolo of the WDPA federal defenders for the defendant.

Bryan v. US — civil rights — affirmance — Roth

After customs agents searched the cabins of three cruise-shop passengers, the passengers brought Bivens claims against the agents and the a claim under the Federal Tort Claims Act against the government. Today, the Third Circuit affirmed summary judgment against the passengers, holding that the Bivens claims were barred by qualified immunity and the FTCA claim by the discretionary-function exception.

Joining Roth were Krause and Fisher. Arguing counsel were David Nissman of McChain Nissman for the passengers and Samantha Chaifetz for the government.

New opinion — Third Circuit vacates some of former Congressman Fattah’s convictions, but reinstates others [updated]

US v. Fattah — criminal — partial affirmance — Smith

[UPDATE: when I saw this opinion, I briefly thought, “wait, wasn’t that already decided? But the opinion wasn’t captioned as being amended as it normally would be, and I was distracted with something else, so I forgot to check and I just wrote a summary. Sorry. Today’s ruling amends the one the court issued back in August. Today’s opinion is 4 pages longer and, sorry again, I haven’t figured out yet what changed beyond the fact that the typeface is larger.]

In a sprawling 165-page, 12-section opinion, the Third Circuit today issued a mixed-bag opinion for former US Congressman Chaka Fattah Sr. and three co-defendants, vacating five counts of conviction, reversing judgements of acquittal on two counts, and otherwise affirming. The five vacated counts were for bribery and honest-services fraud, which the court vacated under the Supreme Court’s 2016 ruling in McDonnell v. US.

Joining Smith were Greenaway and Krause. Arguing counsel were: Jonathan Kravis for the government, Bruce Merenstein of Schnader for Fattah, Ann Flannery of Philadelphia for one co-defendant, Barry Gross of Drinker Biddle for another, and Glen Nager of Jones Day for the third. Video of the oral argument, which ran over two and half hours, is here.

Third Circuit Bar presidency passes from Becker to Simpson

Earlier this month, Andrew Simpson became president of the Third Circuit Bar Association. Simpson is a solo practitioner in St. Croix in the U.S. Virgin Islands, and he becomes the first Virgin Islands lawyer ever to lead 3CBA. He’s an accomplished appellate practitioner who appears regularly in the Third Circuit and last year won a unanimous Supreme Court reversal. (Plus an indefatigable hurricane survivor.)

Simpson takes over the presidency from Charles “Chip” Becker of Kline & Specter. Becker led 3CBA through two dynamic years as the group participated in the Court’s 2017 judicial conference, added four strong board members (Nilam Sanghvi of the PA Innocence Project and Penn Law, Tieffa Harper of the Delaware federal defender, Katherine Romano of Walsh Pizzi, and me), made progress towards a retooled website, and started a popular series of judge-led advocacy CLEs.

In addition to the change in presidency, the 3CBA board elected a new slate of board officers:

If you’re not already a 3CBA member, you ought to fix that. If you’re already a member and you’d like to get more involved by, say, helping with CLE events, writing a piece for the newsletter, or being considered for a future board opening, just reach out to me or any of the other board members.

To Chip, thank you for two dynamite years at the helm. And to Andy, congratulations and good luck!

New opinion

T Mobile Northeast v. City of Wilmington — civil — reversal — Jordan

A federal law required wireless providers challenging denials of permission to build cell towers to bring their challenge “within 30 days after” the denial. Here, the wireless provider raised its challenge before the denial was final, and didn’t supplement it within 30 days after. The district court held that the claim was unripe when filed and not saved by relation back, granting summary judgment against the provider. Today, the Third Circuit reversed, agreeing that the initial complaint was unripe but holding that the belated supplemental complaint related back to the unripe complaint and thus cured the timeliness problem.

Joining Jordan was Nygaard; Vanaskie had been the third judge on the panel. Arguing counsel were Scott Thompson of D.C. for the wireless provider and Joseph Van Eaton of D.C. for the municipal appellees.

The Third Circuit’s courthouse should be renamed for Becker or Hastie

Back in 2017, I wrote a post (link here) I entitled, “Why is the Third Circuit’s courthouse named for James Byrne?” The gist was that Byrne was an obscure Democratic member of Congress, that other circuit courthouses were named for more distinguished figures like Supreme Court justices and legendary circuit judges, and that there was ample precedent for renaming circuit courthouses, so renaming the Third Circuit’s courthouse was “worth considering.”

In my post, I offered up a quick list of nine folks for whom the courthouse could be renamed. Listed alphabetically, they were: Ruggero Aldisert, Edward Becker, William Brennan, William Hastie, Leon Higginbotham, Collins Seitz, Delores Sloviter, Arlen Specter, and James Wilson.

A recent discussion on Twitter got me going about this again and, a year and a half after my original post, I’ve got some more concrete views on renaming the Third Circuit courthouse.

This is worth doing. The name of the circuit courthouse really matters, and not just to nerdy Third Circuit diehards like us. For judges, we don’t create national holidays or build monuments in D.C., we name courthouses, but the civic purpose is the same and it’s not really about paying tribute to great individuals. Deciding who to name a courthouse after is a statement of our values. It is how we express, to ourselves and to future generations, our deepest aspirations for the role the law can play in strengthening our nation. The current name does not fulfill that purpose.

Of the nine candidates I brainstormed in my original post, I believe the choice boils down to two: Edward Becker or William Hastie. Either would be magnificent.

Becker is a giant of the modern federal judiciary, the judge who more than any other led the way to solving the great legal puzzle of our time, how to provide fair compensation for the millions of persons exposed to asbestos. He served on the Third Circuit for a quarter-century (five years as its chief) until his death in 2006. Today Becker is well-nigh universally beloved in the circuit. In this dark time of political polarization and judicial politicization, he is a bright beacon on the path back.

Hastie may be less vivid in our memory today, but he is unsurpassed in the Third Circuit’s history. Hastie was a pathbreaker—the first African American federal judge when he was appointed by FDR to the District of the Virgin Islands in 1937, the first African American circuit judge when he was appointed by Truman to the Third Circuit in 1949, and the first African American chief judge of a circuit starting in 1968. And Hastie was impactful before ever joining the bench, a leading civil rights advocate who with his former student Thurgood Marshall won the landmark Smith v. Allwright white-primaries case before the Supreme Court in 1944. He was a top candidate for the Supreme Court seat filled by Byron White (Earl Warren opposed Hastie for being “not a liberal”). At Hastie’s funeral, Chief Justice Warren Burger said, “In a court that has always included some of the outstanding members of the American judiciary”—preach!—”he was second to none.”

In my original post, I said my vote would be for Becker, but on reflection I don’t favor either over the other. Becker and Hastie aren’t the only strong candidates—compelling cases also could be made for Brennan and Higginbotham, too—but in my view they’re the two strongest. And I’m hardly original in reaching that conclusion: in the current courthouse, the lobby is named for Becker and the library for Hastie.

So, in the end, I can’t say whether it should be renamed for Becker or Hastie. I just know it should be renamed.

“Humor in the Court: The Edward R. Becker Papers”

Today, while hunting around online for another blog post I’m working on, I stumbled across this remarkable post on the Yale University Library’s website, the title of which is the title of this post. Yale houses former Third Circuit Judge Becker‘s papers (he graduated from law school there, as did his accomplished son Chip), and in them there is evidence not just of the judge’s rare legal acumen, but also his famously impish sense of humor.

One zany highlight is Judge Becker’s 1995 wanted poster, featuring the soft-spoken and singularly polite Judge Anthony Scirica. It was sent with a cover memo signed “Fast Eddie” that reported spotting “this guy Tony in the lobby,” and closed, “This guy worries. me.” The poster described Scirica as “known to impersonate Federal Judge” and “EXTREMELY DANGEROUS.”

Professor Eric Muller came across it while doing research in Judge Becker’s papers, and he sent me a copy last year; to be honest, I was too timid to post it. But now that I see it’s respectably online already, I doubt I’ll be disbarred or defenestrated for sharing it—no matter how dangerous the judges may be.

Two new opinions, both authored by retired Judge Vanaskie [updated]

The Third Circuit posted two new precedential opinions today, both authored by Judge Vanaskie, who has retired. Both opinions contain the following footnote:

“The Honorable Judge Vanaskie transmitted the opinion to the Clerk for filing prior to retiring from the bench on January 1, 2019. Due to the intervening holiday, the opinion has been entered on the docket by the Clerk this day.”

At the risk of being accused of Stiegler sticklerism, I think it would have been preferable (assuming that post-retirement issuance was unavoidable) to issue the opinions as two-judge per curiam opinions with footnotes indicating that Judge Vanaskie authored and submitted them prior to his retirement. Doing it the way the court did here invites controversy over the issuance of opinions after a panel member’s death or retirement, unnecessarily in my view.

[UPDATE: the court also issued two non-precedential opinions today that listed Judge Vanaskie on the coram but, unlike the published opinions, stated that the opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d) and 3d Cir. IOP 12.

IOP 12.1(d) speaks directly to this situation:

If the author of an opinion or member of the panel becomes unavailable after transmission of the opinion to the clerk, but before the opinion is filed, the chief judge may direct that the opinion be filed listing the unavailable judge on the coram, provided neither of the remaining judges has authored a concurrence or dissent. Ordinarily the opinion will be filed as a per curiam opinion but the chief judge may in his or her discretion direct that the opinion be filed with the unavailable judge listed as author. The clerk will note on the opinion that it was received in the clerk’s office before the panel member became unavailable.

So, while the internal procedures appear to favor the course I suggested above, they specifically give the Chief Judge the discretion to do exactly as he evidently did here.]


Simpson v. AG — civil — affirmance — Vanaskie

The Third Circuit upheld the ATF’s revocation of a gun dealer’s firearm licenses based on over 400 willful violations of gun laws, holding that such violations are willful if they involve “knowledge of a legal obligation and purposeful disregard or plain indifference to it.”

Joining Vanaskie were Chagares and Jordan. Arguing counsel were Joshua Prince of the Prince Law Offices for the dealer and Carlo Marchioli of the MDPA’s US Attorney’s office for the government.


Ku v. AG — immigration — affirmance — Vanaskie

The Third Circuit today held that an immigrant’s conviction for wire fraud resulted in a loss of over $10,000 and was a crime involving moral turpitude. The court further held that it lacked jurisdiction to review ruling of the Board of Immigration Appeals reversing an Immigration Judge’s grant of a waiver based on the extreme hardship that deportation would cause her U.S. citizen children.

Joining Vanaskie were Jordan and Nygaard. Arguing counsel were Thomas Griffin of Surin & Griffin for the immigrant and Gregory Pennington Jr. for the government.

Vanaskie enters retirement

Thomas Vanaskie retired yesterday, bringing to a close nearly 25 years of distinguished service as a federal judge, of which the last eight years were as a judge on the Third Circuit. Never flashy or ideological, he simply worked to get each case right. The Third Circuit is a centrist, practical court, and to me Vanaskie was its most centrist, practical judge.

I don’t expect to see another Third Circuit nominee like Vanaskie in my lifetime. He was a centrist nominated for elevation by President Obama in August 2009 with two Democratic home-state senators and a filibuster-proof Democratic Senate majority. He was 56 years old when he joined the Third Circuit, and he is 9 years older than Judge Michael Chagares, 4 years older than Judge Kent Jordan, and 12 years older than Judge Thomas Hardiman, even though those three had been nominated by the previous administration. Heaven knows what inspired 20 Republican Senators to vote against his nomination. His Senate Judiciary questionnaire may be the least controversial one you’ll ever see, right on down to his past presidency of his high school alumni association and his co-chairmanship of the circuit task force on libraries.

Vanaskie’s November announcement that he was taking senior status was a bombshell. Going senior just days after he became eligible to do so, and thereby creating a key fourth opening on the court to be filled by a manifestly unfit president, is one of the the most stunning and consequential Third Circuit developments in many years. It was an ironic ending to a drama-free quarter-century on the bench—but then, it was fitting that a judge who ignored partisan concerns throughout his judicial career would ignore them at the end, too.

Happily, Vanaskie’s retirement from the court is not the end of his legal career. According to media reports, he plans to work with a mediation firm and a start-up company developing a data-analysis program. His passion for technological innovation is long-standing: he spearheaded the Middle District’s early adoption of electronic filing and chaired the federal judiciary’s Committee on Information Technology.

I’ll give the final word to two of Vanaskie’s district court colleagues, quoted in the local newspaper article announcing his retirement:

“He sums up all the good things we want to have in a judge,” said Senior U.S. District Judge A. Richard Caputo. “He had a wonderful temperament. He was bright. He was fair and respectful to all, not just lawyers, but all litigants and court personnel.”


Vanaskie remained down to earth, said Senior U.S. District Judge James Munley. He maintained an office at the federal courthouse in Scranton and was always willing to help fellow judges.

“He was a friend, one you could always go to for advice,” Munley said. “He is a remarkable person and had been a leader of our court … He will be greatly missed.”


New opinion — Third Circuit allows Bivens claim for failure to protect prisoner to proceed

Bistrian v. Levi — civil rights — partial affirmance — Jordan

Peter Bistrian was being held in prison awaiting trial for wire fraud and earned the privilege of working outside his cell as an orderly. Another inmate, Steven Northington, asked Bistrian to pass notes from Northington to other prisoners. Northington was being held for a federal capital trial for being a leading member of the violent drug operation headed by Kaboni Savage. [Disclosure: I represent a co-defendant of Northington and Savage in a pending Third Circuit criminal appeal.]  Bistrian, who must be mind-bogglingly brave, told prison guards about Northington’s request and then agreed to pass Northington’s notes to the guards for them to photocopy before Bistrian delivered them. But when one of the prison guards screwed up and gave Bistrian the photocopy instead of the original, Bistrian’s cooperation was discovered, and Bistrian received multiple threats. Even though the guards were aware of these threats, they one day sent Bistrian into the recreation yard with Northington and two others, who commenced to “brutally beat” him, causing him “severe physical and psychological injuries.” What an unfathomable nightmare.

Bistrian sued the guards and the government, asserting Bivens claims for failing to protect him and for retaliating against him for filing inmate grievances. The defendants asserted qualified immunity and the district court granted summary judgment on this basis for some claims but not others. Yesterday, the Third Circuit affirmed in part, holding that Bistrian’s Bivens claims for failure to protect survived summary judgment but that his retaliation claims did not.

The court also refused to find that the defendants had waived their key legal argument by failing to raise it below, explaining that “[t]o rule otherwise would be to allow new causes of action to spring into existence merely through the dereliction of a party,” although I don’t follow how recognizing waiver of a legal argument by a party in one appeal would spring anything into existence.

Joining Jordan were Rendell and the about-to-retire Vanaskie. Arguing counsel were Jeffrey Scott of Archer for the defendants and Richard Bazelon of Bazelon Less for Bistrian.

New opinion [updated]

Jaroslawicz v. M&T Bank — civil — partial reversal — Vanaskie

UPDATE: on June 4, 2019, the court granted panel rehearing, vacated this opinion, and reconstituted the panel.

Today the Third Circuit reversed in part the dismissal of a shareholder suit in the wake of a 2012 bank merger, holding in a detailed opinion that the shareholders pleaded actionable claims for failing to disclose risk factors prior to the merger and plausibly alleged loss causation.

Joining Vanaskie were McKee and Siler CA6 by designation. Arguing counsel were Deborah Gross of Kaufman Coren for the appellants and Barry clerk Bradley Wilson of Wachtell for the appellees (George Conway III was on the brief).

The 10 most-read CA3blog posts of 2018

Ladies and gentlemen, I present you: the 10 most-clicked-on CA3blog posts of 2018. My favorite was the argument-as-kabuki post (#6), and the most fun to do was the oral-argument compilation (#7).

1. Some thoughts on yesterday’s remarkable oral argument in the Philadelphia sanctuary-city appeal (November 8)

Katyal is one of the most accomplished Supreme Court advocates alive, and I hadn’t seen one of his arguments before, so I was eager to watch him in action. I left with my jaw on the floor.

2. Lawyer’s Third Circuit brief results in bar discipline (December 7)

3. Is Paul Matey’s Third Circuit nomination still on track? (August 18)

4. New opinion — an interesting debt-collection-suit win (February 12)

the counsel match-up was David vs. Goliath–a junior consumer lawyer against a past president of the American Academy of Appellate Lawyers–and the junior lawyer won

5. Judge Vanaskie will take senior status (November 27)

6. Oral argument as kabuki (May 25)

Hitting the right tone for persuasive oral argument is like suppressing your impulse to talk over a judge. It’s not familiar or natural, and it’s not as easy as “respectful conversation.” Before you can begin to master it, first you have to decide to work at mastering it.

7. A bunch of good Third Circuit oral arguments (May 23)

8. The latest Third Circuit case statistics seemed to reveal a stunning transformation, but actually the data is useless (March 15)

9. The Third Circuit honors its newest judge, Stephanos Bibas (April 20)

There isn’t much glory in writing a circuit blog, but now and again it leads to wonderful things, and so it was yesterday when I had the privilege attending the investiture of the Third Circuit’s newest judge, Stephanos Bibas.

10. New opinion — Third Circuit clarifies the new-evidence standard for proving actual innocence (July 23)


To my surprise, two posts from previous years would have finished in this year’s top 10:


And the single least read post of 2018? I believe it was the deservedly ignored Due to snowstorm, today’s Third Circuit deadlines extended to tomorrow.


Happy holidays to all! And thank you for reading my nerdy little blog this year.

Court announces procedures for government shutdown; most deadlines remain in place

The Third Circuit posted the following announcement today on its website:

US Court of Appeals for the Third Circuit Open During Government Shutdown

The United States Court of Appeals for the Third Circuit is open during the Government Shutdown. Oral arguments will be heard as scheduled. All filing deadlines must be met. CM/ECF will remain operational. Attorneys representing federal government agencies in cases scheduled for oral argument must promptly contact the Clerk’s Office regarding any arrangements necessary during a lapse in funding, e.g. substitution of counsel, request to have case submitted on the briefs. Federal government agencies are expected to timely respond to emergency or expedited motions and cases. Deadlines for filings by federal government agencies in non-emergency cases will be suspended during the government shutdown. New deadlines will be established once the government shutdown has ended. To ensure an orderly resumption of work, government entities should expect that deadlines will be staggered. For example, filings due December 24, 2018 would be due seven days after the end of the shutdown; filings due December 26 would be due eight days after the end of the shutdown. The Court will be closed on December 25, 2018 and no deadlines have been set for that day. Attorneys appointed under the Criminal Justice Act should continue their representation and should continue to submit vouchers for payment. Payment of vouchers will be delayed.

Judge Vanaskie is retiring on January 2

Third Circuit Judge Thomas Vanaskie has announced that he is retiring from the court effective January 2. The story was first reported by the Wilkes-Barre, Pa., Citizens’ Voice, link here.

Judge Vanaskie had assumed senior status just last month, which created an open seat on the court. But this announcement means he now will leave the court entirely.

From the Citizens’ Voice story:

He said he is stepping down to spend more time with his family and pursue an opportunity with a mediation firm and a start-up company developing a computer program that will allow attorneys to quickly analyze massive amounts of data.

“I’ve done everything I could in the judiciary and had a great experience,” Vanaskie said. “I have some other opportunities I’d like to explore. I thought this was the right time to do it.”

Judge Vanaskie joined the Third Circuit in 2010 after being nominated by President Obama. His retirement will leave the court with nine senior judges.

Three reversals

Bedrosian v. US — tax — reversal — Ambro

Says the introduction:

This appeal presents two issues of first impression in our Court concerning the Internal Revenue Service’s assessment of civil penalties for violation of 31 U.S.C. § 5314 and its implementing regulations, which require certain persons annually to file a Report of Foreign Bank and Financial Accounts (colloquially called a “FBAR” or simply “Report”). First, we examine federal court jurisdiction over actions challenging the IRS’s assessment of civil FBAR penalties. We conclude that jurisdiction exists here but reserve the question whether it is established in the District Court when a taxpayer files suit to challenge a FBAR penalty before fully paying it. Second, we clarify that, to prove a “willful” FBAR violation, the Government must satisfy the civil willfulness standard, which includes both knowing and reckless conduct. To ensure this action accords with that standard, we remand for further proceedings consistent with our opinion.

The court sided with the government in holding that the district court applied the wrong standard for willfulness insofar as implied that the issue turned on the taxpayer’s subjective motivations and the overall egregiousness of his conduct.

Joining Ambro were Chagares and Greenaway. Arguing counsel were Andrew Weiner for the government and Patrick Egan of Fox Rothschild for the taxpayer.


US v. Bey — criminal — reversal — McKee

The Third Circuit today vacated a defendant’s criminal conviction, holding that, while the initial stop was lawful, the continuation of the stop after the officers should have realized that he did not meet the physical description violated the Fourth Amendment.

Joining McKee were Vanaskie and Restrepo. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Robert Zauzmer of the EDPA US Attorney’s office for the government.


And, yesterday:

In re: Community Bank of Northern Va. Mortgage Lending Practices Litig. — civil / jurisdiction — reversal — Shwartz

An attorney-fee-allocation dispute broke out after the final order approving a class action settlement. After one side filed a state action alleging breach of contract, the other side asked the federal court that had presided over the class action to halt the state litigation and decide the fee issue itself, which it did. The Third Circuit reversed, holding that the district court erred in exercising ancillary jurisdiction over the state litigation.

Joining Shwartz were Roth and Fisher. Arguing counsel were Stanley Stein of Pittsburgh for the appellant and Gary Lynch of Carlson Lynch for the appellee.

NRA group files for rehearing in NJ large-capacity gun-magazines appeal

The Association for New Jersey Rifle & Pistol Clubs on Wednesday filed a petition for en banc rehearing in ANJRPC v. AG, in which the Third Circuit denied the group’s Second Amendment challenge to New Jersey’s law limiting gun magazines to 10 bullets. The group posted its petition online, link here.

The petition asserts five grounds for rehearing, including that the Court should adopt “eschew tiers of scrutiny” and adopt in its place “[a]n approach based on text, history, and tradition.”

It unloads on the panel-majority opinion with a  barrage of sinister verbs: “refused,” “disregarded,” “directly contravenes,” “avoided that conclusion by grafting a new requirement,” “arrogated to itself,” “allowed the suppression of a fundamental right ‘for mere convenience,'” “invented,” “manufactured,” “proceeded to shift the burden of proof,” “made factual assertions that are dubious, irrelevant, or based on flawed empirical methodologies,” “ignoring almost all contrary evidence and counterargument,” “never even analyzed,” “refusing to hold the State to its burden of proof,” “flipped the burden,” and “created a circuit split without even trying to justify doing so.” This is a frankly bewildering approach to seeking a majority for Third Circuit en banc rehearing.

In the weeks since it issued, the panel-majority opinion in this case has been targeted for extraordinary criticism on pro-gun websites and conservative news outlets. A few examples:

  • here (graphic: “I WILL NOT COMPLY”), and
  • here (headline: “Venezuela Banned Gun Ownership Before Country’s Collapse”)

As I observed on Twitter, I don’t remember ever seeing a circuit case in which the public criticism focused so heavily on identifying the majority and dissenting judges by name and by the president who had nominated them, and I find it scary as hell.

The petitioner’s announcement states that, “If the court declines en banc review, ANJRPC is prepared to eventually seek review from the U.S. Supreme Court.”

Two new opinions [updated]

NLRB v. Imagefirst Uniform — labor — partial reversal — Cowen

The Third Circuit today partially granted the National Labor Relations Board’s application for enforcement of its decision holding that an employer violated the NLRA. The employer broke the law when it tried to block union representatives from handing out literature on the public sidewalk outside its building, but not when it called the police.

Joining Cowen were Krause and Fuentes. Arguing counsel were Kellie Isbell for the NLRB and Christopher Murphy of Morgan Lewis for the employer.


US v. McCants — criminal — affirmance — Hardiman

UPDATE: the panel granted rehearing and issued a new opinion, link here.

The Third Circuit today rejected a criminal defendant’s challenge to legality of a search that resulted from an anonymous 911 call, as well as his challenges to his sentencing as a career offender based on prior NJ convictions for second-degree robbery as crimes of violence.

Joining Hardiman were Krause and Bibas. Arguing counsel were Leticia Olivera of the NJ FPD for the defendant and Richard Ramsay of the NJ USAO for the government.

[post updated to correctly identify arguing counsel for the government.]

Today’s en banc vote: one more thing

A quick note that I only thought of after my original post: Judge Vanaskie is listed as participating in the vote on whether to grant rehearing en banc, although he took senior status effective November 30. I would have thought that whether a judge participated in a vote on whether to grant en banc rehearing was determined by his status on the date of the decision (today), not on the date the rehearing petition was filed (presumably before November 30). It seems I would have been mistaken.

The relevant procedure, IOP 9.5.3, doesn’t clearly answer this point, saying, “Pursuant to 28 U.S.C. ‘ 46(c), only active judges of this court may votefor rehearing en banc. Therefore, rehearing en banc shall be ordered only upon the affirmative votes of a majority of the judges of this court in regular active service who are not disqualified.”

(An obscure point perhaps, but it wouldn’t be all that far-fetched to imagine Judge Vanaskie being the decisive seventh vote in favor of rehearing here.)

Third Circuit grants en banc rehearing on PLRA three-strikes issue

The Third Circuit today granted rehearing en banc in Brown v. Sage. In Brown, a panel majority (Judge Fuentes, joined by Chief Judge Smith) had ruled that a prisoner had not accrued three strikes under the Prisoner Litigation Reform Act, while Judge Chagares had dissented vigorously and urged the court to hear the case en banc. My summary of the panel opinion is here, the now-vacated panel opinion is here.

New opinion — a Pa. conviction for endangering the welfare of a child is not a deportable child-abuse crime

Liao v. AG — immigration — reversal — Shwartz

A Chinese citizen who had been a legal permanent US resident for a decade was convicted in Pennsylvania of endangering the welfare of a child after a physical altercation with his girlfriend. Yesterday, the Third Circuit held that his conviction was not a “crime of child abuse” under the Immigration and Naturalization Act because the elements of the criminal statute allowed conviction on a lesser showing  than the INA. The court accordingly vacated the man’s removal order and remanded.

Joining Shwartz were Roth and Fisher. Arguing counsel were former Ambro clerk Joshua Bolian of Robbins Russell for the immigrant and Jonathan Robbins for the government. The opinion noted that Bolian appeared pro bono, noted that his service is in highest tradition of the profession, and thanked him for his representation.

John Gibbons, former Third Circuit Chief Judge, 1924-2018

Former Third Circuit Judge John J. Gibbons died yesterday at age 94. Judge Gibbons was a Third Circuit judge for 20 years and Chief Judge for three, serving from 1970 until his retirement in 1990.

The Gibbons law firm posted this announcement and remembrance, which begins:

It is with great sadness that Gibbons P.C. announces the passing of John J. Gibbons, the firm’s Standard-Bearer, on December 9, 2018.

Judge Gibbons, the former Chief Judge of the United States Court of Appeals for the Third Circuit, committed his six-decade career to protecting the rule of law in the United States. His commitment dates back to the 1960s – when, as the President of the New Jersey State Bar Association, he enlisted attorneys to help those unable to afford legal representation during the Newark Riots – and continued into the new century, culminating in his argument in front of the United States Supreme Court in support of civil liberties and government transparency in the war on terrorism.

Here are three links of particular interest:

  • video of an interview of Gibbons by his friend and former colleague, Judge Leonard Garth.
  • audio of Rasul v. Bush, the landmark Supreme Court case he argued in 2004 challenging the detention of 660 men at Guantanamo Bay without judicial review. His argument began, “What is at stake in this case is the authority of the Federal courts to uphold the rule of law.”
  • a wonderful 2008 public television profile of Gibbons.

The Gibbons Firm will celebrate his career with a memorial ceremony in January. Judge Gibbons was a fine judge, an accomplished lawyer, and a beloved person, and he will be missed.

New opinion

Castellanos Monzon v. De La Roca — international — affirmance — McKee

The Third Circuit today affirmed a district court’s denial of a father’s petition under an international agreement (the Hague Convention on the Civil Aspects of International Child Abduction Remedies) for the return of his child from the mother after they divorced and she moved with the child from Guatemala to the U.S.

Joining McKee were Ambro and Restrepo. Arguing counsel were John Boehler, formerly of Rutgers Law Associates and now of Beattie Padovano, for the father and Kennedy clerk Mark Taticchi of Drinker Biddle for the mother.

UPDATE: this story by Charles Toutant for New Jersey Law Journal provides helpful context on the procedural history.

Judges Restrepo and Bibas offer advice on appellate practice [guest post]

Note: this guest post was written by Karl Myers, a leading Pennsylvania appellate lawyer at Stradley Ronon. You can follow Karl on Twitter (as I do) at @KarlSMyers.

On November 28th, I attended a CLE program in Norristown at the Montgomery Bar Association, entitled “Tips on Third Circuit Practice From Two Circuit Judges.”  The panelists were Third Circuit Judges Felipe Restrepo and Stephanos Bibas.  It was an interesting discussion that covered the expected recommendations about briefing and argument, but also featured some interesting tidbits that likely will be of use to Third Circuit practitioners.

For example, Judge Bibas emphasized the need to carefully use authority in briefs.  He noted that he has seen a number of submissions that treat non-binding authorities (like district court and magistrate judge decisions) as if they are binding on the Third Circuit.  Citing those opinions necessitates a discussion about the facts and rationales employed.  That way the court has a good handle on why those cases have been cited and why they should be followed.  Along the same lines, Judge Bibas noted that he finds it particularly effective when advocates pull the briefing filed in the cases cited and use the context of that advocacy to demonstrate how the cases cited should be understood.

In terms of the Judges’ review process, Judge Restrepo starts by reading the appellant’s summary of argument, then reads the district court opinion, and then returns to the appellant’s brief.  He picked up this technique from Judge Cheryl Krause, as she quickly learned that reading the district court opinion first does not make much sense because some issues addressed in the district court opinion may not be appealed, and thus the district court’s discussion of those issues need not be considered.   Both Judges Restrepo and Bibas use a combination of paper and iPads for review of briefs and opinions.  Judge Bibas noted that he usually starts with reading hard copies but will use an iPad for a third or fourth review of the briefs or while traveling.

Judge Bibas shared some insights about the timing of oral argument and the associated need to timely file reply briefs.  He explained that cases are typically assigned to argument panels about 8 weeks before argument.  That assignment happens once the appellee’s (red) brief is filed – not when the reply is filed.  The panel members then will discuss candidates for argument typically 4 weeks or so before the argument week.  So it behooves an appellant to file its reply in a timely manner and not ask for more than one extension, as otherwise there is a good chance the panel will make a decision about argument without having considered the reply.  Both Judges Bibas and Restrepo noted that reply briefs are relatively rare, as they see them in fewer than half of all cases – a statistic I found surprising.  They both would like to see more replies, as they are often left wondering what the appellant’s response is to some of the appellee’s points in cases where they do not receive a reply.

With regard to argument itself, Judge Restrepo noted that even though a specific amount of time is set for each case, there is wide variance in how rigorously the time is enforced by each presiding judge.  So once a case is set for argument and the panel identified, he recommends watching the court’s argument videos or listening to the audio streams from another panel with the same presiding judge to get a feel for how the argument will be managed.

In my view, both Judges Restrepo and Bibas were interesting and engaging speakers and seemed to relish the opportunity to educate and engage with the bar so practitioners could have a better understanding of the court’s work and, as a result, more effectively represent their clients.

Lawyer’s Third Circuit brief results in bar discipline

The Disciplinary Board of the Supreme Court of Pennsylvania is scheduled to issue a public reprimand next month of an attorney who filed a Third Circuit brief containing comments the panel described as “unprofessional.”

According to a news report today, a Wilkes-Barre lawyer will appear on January 7 for the Board’s public reprimand. The lawyer reportedly acknowledged that his statements were inappropriate and consented to the reprimand.

The Third Circuit’s 2017 non-precedential opinion , authored by Chief Judge Smith, catalogs the offending statements in a footnote:

See Appellant’s Br. at 13 (“The District Court . . . smugly contradicted itself”); 14 (“If, as the District Court so proudly recited”); 15 (“a genuine issue of fact was clearly and intentionally overlooked by the District Court” and the District Court’s analysis is “quite frankly, outright false”); 16 (“evidences the District Court’s clear lack of understanding of Pennsylvania Tax Sale Law,” “seemingly in an effort to bolster a legal position that really does not exist, the District Court misstated the status of the law,” and the “Court chose to omit that crucial language to avoid giving Swinka their opportunity in court”); 17 (“two (2) distinct problems with the District Court’s unsubstantiated position”); 19 (“the District Court grossly erred in its ruling”); 19 n.1 (“the District Court