In the three-plus weeks between January 29 and yesterday, the Third Circuit issued 72 nonprecedential opinions and 0 precedential ones.

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.

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.

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.

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.

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.

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.

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.

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.

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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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), https://www.bop.gov/resources/news/20200313_covid-19.jsp. 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), https://www.justice.gov/file/1262731/download. 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.]

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

[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

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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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 expensive—and 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.

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.

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.

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.

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 detention—the “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.

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.

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 challenged—the “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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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.

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.

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.]

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.)

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.

Workman v. Superintendent — habeas corpus — reversal — Fuentes

Well, something seems not quite right here, but here goes. Back in September, the Court issued a panel opinion, link here, which I summarized as follows:

The Third Circuit today ruled in favor of a habeas corpus petitioner, holding that his trial counsel was ineffective for failing almost entirely to mount a defense and that post-conviction counsel’s ineffectiveness excused default of that issue under Martinez v. Ryan. Notably, the court held that the petitioner did not need to prove prejudice from his counsel’s error because, under United States v. Cronic, prejudice was presumed due to counsel’s near-total failure to contest the prosecution’s case.

[Disclosure: I provided minor consulting assistance to counsel for the petitioner.]

Joining Fuentes were Ambro and Restrepo. Arguing counsel were Marshall Dayan of the WDPA defender for the petitioner and Catherine Kiefer of the Philadelphia DA’s office for the Commonwealth.

Then last month the panel granted the Commonwealth’s petition for panel rehearing, vacated its original opinion, and promised a new one. The Commonwealth’s rehearing petition had argued that applying Cronic here was error but (remarkably) that the court could more soundly reach the same result by finding that counsel was ineffective under the usual deficient-performance-and-prejudice Strickland test.

But then today, the panel reissued the opinion with, as best I can tell, no substantive changes.  The new opinion corrects a few missing line-spaces between paragraphs (while leaving a typo in a heading, “Asssistance,”) but still applies Cronic.

I’m not sure how to interpret this, to be honest, but stay tuned.

[UPDATE: my original post linked to the old opinion instead of the new one, sorry to add to the confusion.]

[UPDATE2: the panel granted rehearing again.]

[UPDATE3: here’s the new opinion.]

Alpizar-Fallas v. Favero–civil — reversal — Rendell

The Third Circuit today reversed a district court’s dismissal of a deception claim brought under New Jersey’s Consumer Fraud Act.

Joining Rendell were Jordan and Vanaskie. Arguing counsel were Charles Gormally of Brach Eichler for the appellant and Kymberly Kochis of NY for the appellee.

Jacobs v. Federal Housing Finance Agency — civil — affirmance — Bibas

Since joining the Third Circuit about a year ago, Judge Stephanos Bibas has authored a number of opinions. But, in my view at least, today’s opinion in Jacobs marks the beginning in earnest of what I expect to be his momentous career on the bench. It’s a true powerhouse opinion, dispatching a complicated appeal with an elegant clarity that I expect to become Bibas’s hallmark. And the fact that he did it on behalf of a panel that also includes Judges Hardiman and Krause–three superb judges, all under 54 and all in the conversation for elevation to the Supreme Court, on the same court and sitting together–underscores why the Third Circuit is going to be an influential, fascinating court for many years to come.

But enough CA3 sis-boom-bah. Today’s appeal arose from a challenge to one aspect of the federal government’s response to the 2008 financial catastrophe. Fannie and Freddie Mac, the government agencies created to back home mortgages, were headed towards collapse, so the Congress passed a bill to keep them afloat in exchange for conservatorship by the Treasury Department and payment of their dividends to the Treasury instead of their private shareholders. The shareholders sued, asserting that the government lacked the power to enact the statute and violated the statute. The court rejected both arguments and concluded that, if the challengers’ relief were granted, the entire deal would unravel.

Joining Bibas were Hardiman and Krause. Arguing counsel were Michael Pittenger of Potter Anderson for the challengers, Howard Cayne of Arnold & Porter for one of the agencies, and Gerard Sinzdak of DOJ for the Treasury Department.

City of Cambridge Retirement Sys. v. Altisource Asset Mgmt. — civil / securities / class action — affirmance — Fisher

The Third Circuit affirmed a district court’s ruling that the plaintiffs in a securities fraud class action failed to meet the requirements of the Private Securities Litigation Reform Act.

Joining Fisher were Krause and Roth. Arguing counsel were Kevin Green of San Diego for the appellant and Walter Carlson of Sidley Austin for the appellees.

Earlier today, the Third Circuit posted a precedential opinion in Palardy v. Township of Millburn, 17-2597. Now it’s gone from the court website. On the case docket, there is a clerk’s order entered today that reads, “The Court’s opinion and judgment dated September 19, 2018, having been prematurely filed is hereby VACATED., filed.” My thanks to a helpful reader for pointing it out to me.

US v. Glass — criminal — affirmance — Vanaskie

The Third Circuit this afternoon granted the government’s motion to publish an opinion in a case it previously had decided by non-precedential opinion. Such motions seem to rarely filed except by the government in criminal cases, which I see as unfortunate and a disservice to the court.

Anyhow, the case involved a defendant’s challenge to being sentenced as a Sentencing Guidelines career offender. The court rejected his argument that Pennsylvania’s PWID statute criminalized offers and thus didn’t qualify as predicate controlled substance offenses.

Joining with Vanaskie were Krause and Restrepo. The case was decided without oral argument.

In the Hayes en banc case decided earlier today, which I posted about here, the clerk just entered an order stating, “At the direction of the Court, an amended opinion shall be filed to reflect that Judge Hardiman joined in the dissent filed by Judge Fisher.”

Oops.

In re: Arctic Glacier Int’l — bankruptcy — affirmance — Bibas

The Third Circuit today issued the first precedential opinion authored by its newest member, Judge Stephanos Bibas. The issue in the appeal was whether a party that bought shares in a bankrupt company after the bankruptcy reorganization was bound by terms of the reorganization plan applicable to shareholders. In an opinion that’s devoid of flash and a model of clarity, the court held that it was.

Joining Bibas were Smith and Hardiman. Arguing counsel were David Gordon of New York for the appellants and Mark Rasmussen of Jones Day for the appellees.

Newark Cab Assoc. v. City of Newark — civil — affirmance — Chagares

The Third Circuit today denied an appeal brought by Newark taxicab and limo operators seeking to revive their challenge to a deal between the city and ride-sharing giant Uber. The deal freed Uber from regulations that apply to taxi drivers, such as the need to buy a taxi medallion, get a commercial license, and charge rates set by the city. The court acknowledged that the city’s deal with Uber put the plaintiffs in “an undoubtedly difficult position,” but it upheld the district court’s dismissal of their constitutional and state-law claims.

Joining Chagares were Jordan and Hardiman. Arguing counsel were Richard Wedinger of Barry, McTiernan, & Wedinger for the cab operators and James Lewis of Pennington Law Group for the city.

Abdul-Salaam v. Secretary — capital habeas — partial reversal — Chagares

The Third Circuit today held that a capital petitioner was entitled to habeas corpus relief due to ineffective assistance of this penalty-phase trial counsel in failing to investigate and present mitigation. It’s a significant capital habeas opinion because it involves a depressingly common scenario in capital cases, where counsel presents a sliver of the available mitigation evidence while failing to uncover the rest of what was available. Today’s opinion firmly rejected the arguments that counsel’s skepticism about whether he’d present certain evidence justified his failure to investigate it and that counsel’s presentation of morsels of evidence rendered all the evidence he missed cumulative.

Although the opinion didn’t emphasize the point, this case is another example of a district court denying a certificate of appealability on a claim that the Third Circuit thereafter granted relief on. In other words, the Third Circuit found that the claim was meritorious after the district court decided it was so weak that no reasonable jurist could even debate its merit! What a blunder.

Joining Chagares were Greenaway and Shwartz. The case was decided without oral argument.

A helpful reader kindly pointed out to me an interesting little Third Circuit victory hidden in last week’s Supreme Court ruling in Pereira v. Sessions that Chevron deference does not apply to an immigration-statute provision involving cancellation of removal.

Back in 2016, the Third Circuit faced the same question in Orozco-Velasquez. The petitioner argued that he was entitled to cancellation of removal, and that the BIA’s ruling compelling the opposite result was not entitled to Chevron deference. At least six circuits had held that the BIA’s ruling was entitled to Chevron deference, and none had held that it wasn’t.

But the Third Circuit split with them all.

Orozco-Velasquez held that the BIA’s ruling didn’t get Chevron deference, explicitly disagreeing with the other circuits, and ruled for the petitioner. The opinion was authored by Judge Roth and joined by Judges McKee and Ambro.

In last week’s Supreme Court ruling, the Third Circuit was vindicated. Justice Kennedy’s concurrence explains (emphasis mine):

The first Courts of Appeals to encounter the question concluded or assumed that the notice necessary to trigger the stop-time rule found in 8 U. S. C. §1229b(d)(1) was not “perfected” until the immigrant received all the information listed in §1229(a)(1). Guamanrrigra v. Holder, 670 F. 3d 404, 410 (CA2 2012) (per curiam); see also Dababneh v. Gonzales, 471 F. 3d 806, 809 (CA7 2006); Garcia-Ramirez v. Gonzales, 423 F. 3d 935, 937, n. 3 (CA9 2005) (per curiam).

That emerging consensus abruptly dissolved not long after the Board of Immigration Appeals (BIA) reached a contrary interpretation of §1229b(d)(1) in Matter of Camarillo, 25 I. & N. Dec. 644 (2011). After that administrative ruling, in addition to the decision under review here, at least six Courts of Appeals, citing Chevron, concluded that §1229b(d)(1) was ambiguous and then held that the BIA’s interpretation was reasonable. See Moscoso-Castellanos v. Lynch, 803 F. 3d 1079, 1083 (CA9 2015); O’Garro v. United States Atty. Gen., 605 Fed. Appx. 951, 953 (CA11 2015) (per curiam); Guaman-Yuqui v. Lynch, 786 F. 3d 235, 239–240 (CA2 2015) (per curiam); Gonzalez-Garcia v. Holder, 770 F. 3d 431, 434–435 (CA6 2014); Yi Di Wang v. Holder, 759 F. 3d 670, 674–675 (CA7 2014); Urbina v. Holder, 745 F. 3d 736, 740 (CA4 2014). But see Orozco-Velasquez v. Attorney General United States, 817 F. 3d 78, 81–82 (CA3 2016). The Court correctly concludes today that those holdings were wrong because the BIA’s interpretation finds little support in the statute’s text.

Don’t mess with the Third Circuit.

The Supreme Court today granted certiorari to hear an Eleventh Circuit case to decide whether to overrule the “separate sovereigns” exception to the double jeopardy clause. The case is Gamble v. United States, 17-646. The Court did not act on a cert petition from a Third Circuit case raising the same issue that it had re-listed 10 times (Scotus docket here), but it seems clear that any eventual ruling in Gamble will have an impact here, too.

Thanks to MDPA assistant federal defender Fritz Ulrich for pointing out the Third Circuit dimension to me.

The Supreme Court today granted certiorari in Merck Sharp & Dohme v. Albrecht, the Third Circuit case decided as In re: Fosamax. The question presented, per Scotusblog:

Whether a state-law failure-to-warn claim is pre-empted when the Food and Drug Administration rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning.

The cert grant was not unexpected after, at the Court’s invitation, the Solicitor General filed an amicus curiae brief urging the Court to grant review. Justice Alito is recused from the case.

My earlier coverage of the appeal is here and here.

Gillespie v. Regionalcare Hospital Partners — civil — affirmance — McKee

A pregnant women arrived at Pennsylvania’s Southwest Regional Medical Center complaining of pain and vaginal bleeding. After examining her, ER personnel discharged the woman and told her to go to a different hospital. The nurse at Southwest Regional in charge of evaluating patient care and addressing medical errors believed that discharging the woman violated a federal law against hospital-patient dumping known as EMTALA. Right after she told her supervisor that Southwest Regional had to report the EMTALA violation, she was fired. She sued, alleging that her firing violated EMTALA’s whistleblower protection, and the district court granted summary judgment to the hospital.

Today, the Third Circuit affirmed the ruling against the fired nurse. To be covered by EMTALA’s whistleblower provision, the nurse had to have “reported a violation.” Here, the court explained, the nurse didn’t “report” anything because she alleged her superiors already knew about and to the EMTALA violation but refused to report it anyway. So, no “report.” (I have no EMTALA expertise, but I would have guessed that the medical center’s failure to report was itself an EMTALA violation, separate from the original patient-dumping violation, and one that the nurse did report, but the opinion does not mention this theory so I’m not sure.) Anyhow, a tough case.

Joining McKee were Smith and Restrepo. Arguing counsel were Noah Geary for the nurse and Marla Presley of Jackson Lewis for the medical center.