Third Circuit rules that Pittsburgh’s abortion-clinic buffer zone doesn’t apply to “sidewalk counseling”

Bruni v. City of Pittsburgh—First Amendment—affirmance—Krause

After Pittsburgh’s Planned Parenthood clinic was targeted with bomb threats, vandalism, and blockades, the city council enacted an ordinance that created a fifteen-foot buffer zone outside any healthcare-facility entrance. The ordinance provided that no person could “congregate, patrol, picket or congregate” within a buffer zone. Pro-life activists who try to persuade women entering clinics not to obtain an abortion, known as sidewalk counselors, filed suit, alleging that the buffer-zone ordinance violated their free-speech rights. In a prior appeal, the Third Circuit in 2016 vacated dismissal of their suit. On remand, the district court granted summary judgment for the city.

Today, the Third Circuit affirmed on alternative grounds, holding that the ordinance is not a content-based limitation on speech because, applying a limiting construction, it does not apply to sidewalk counseling in the first place. Applying intermediate scrutiny to the plaintiffs’ facial challenge, the court “easily” concluded that the ordinance as thus construed passed.

Judge Hardiman concurred to argue that the city will not be able to enforce the ordinance against quiet conversations regardless of their content within the bounds of protected speech and that it will have to enforce the ordinance against the clinic’s own employees who congregate or pace to help clinic patients.

Joining Krause were Hardiman and Greenberg; Hardiman also concurred. Arguing counsel were Kevin Theriot of Alliance Defending Freedom for the plaintiffs and Matthew McHale (now an AUSA) for the city.

New opinion

Orie v. Secretary Pa. DOC—habeas corpus—affirmance—Bibas

Former Pa. State Senator Jane Orie was prosecuted for using state employees for personal gain and then trying to cover it up. At her original trial, she introduced forged evidence (!) in an effort to shift the blame to her chief of staff. After the judge declared a mistrial, she was retried and convicted of original charges plus new evidence-tampering and forgery charges. After her challenges to her conviction were rejected in state court, she filed a federal habeas petition asserting, with chutzpah, that retrying her after the mistrial violated her double jeopardy right. The Third Court thought not.

Joining Bibas were Jordan and Matey. Arguing counsel were William Costopoulos of Costopoulos Foster & Fields for Orie and Ronald Wabby Jr. of the Allegheny County D.A.’s office for the Commowealth.

Judge Krause awarded writing prize for lawyer-wellness essay

Third Circuit Judge Cheryl Krause and her former law clerk Jane Chong are the 2019 winners of the American Inns of Court’s Warren E. Burger Prize for their essay “Lawyer Wellbeing as a Crisis of the Profession.” The prize announcement is here. Their prize will be presented October 26 at an event at the Supreme Court hosted by Justice Neil Gorsuch.

From the announcement:

The authors describe high rates of lawyer depression, anxiety, accidental overdose, and suicide and urge comprehensive examination of the conditions that contribute to lawyer distress. “[T]he suffering lawyer can be understood as a canary in the coalmine of the legal profession,” the authors write.

Going beyond poor mental health’s effect on individual lawyers and their ability to represent clients effectively, the essay instead focuses on the way in which modern legal practices impair lawyer wellbeing and degrade the profession’s ideals. These practices include long hours, diminished training opportunities for young lawyers, the increasing commercialization of practice, and the deterioration of civility and decorum. Striking at the core of professional identity, these practices have led to decreased autonomy, diminished connectedness to others, and debilitating self-doubt.

Calling for the profession to put its ideals into practice, the essay concludes with suggestions for reform. Recommendations include expanding opportunities to develop competence, rewarding public service as well as billable hours, and raising standards of conduct outside as well as inside the courtroom.

The Burger Prize is a writing competition to promote professionalism, ethics, civility, and excellence. The winning essay by Judge Krause and Chong will be published in an upcoming issue of the South Carolina Law Review.

Chong clerked for Judge Krause 2015-16. She is an associate at Williams & Connolly in Washington D.C., and previously was an editor of Lawfare.


New opinion—Third Circuit rules that county employee’s complaint about being eavesdropped was protected citizen speech

Javitz v. County of Luzerne—constitutional—partial reversal—Restrepo

The human resources director for a Pennsylvania county complained to her superiors that another county employee had broken the law by recording her meeting with union representatives without her consent. Things went downhill from there: she alleged that the county then retaliated against her, and it eventually fired her without explanation. She sued, alleging that her firing violated her First and Fourteenth Amendment rights. The district court ruled for the county on both claims, but today the Third Circuit reversed and remanded on her First Amendment retaliation claim. The court rejected the district court’s ruling that her speech was unprotected because she spoke as a public employee rather than a private citizen: “Who Javitz spoke to, what she spoke about, and why she spoke at all each fall outside the scope of her primary job duties and evidence citizen speech.”

Joining Restrepo were Porter and Fisher. Arguing counsel were Donna EM Davis of Throop, Pa., for the plaintiff, Vernon Francis of Dechert for the ACLU as amicus supporting the plaintiff, and Mark Bufalino of Elliott Greenleaf for the county.

3 Third Circuit judges will speak at a major event on judicial independence

“Americans increasingly view the judiciary as an extension of the political system,” and “Trust in the judiciary is at a crisis level.” So say the organizers of a remarkable program that will take place at Penn Law in Philadelphia on Saturday, October 26, entitled the Fair & Impartial Judiciary Symposium.

The day will feature retired Supreme Court Justice Anthony Kennedy speaking on “The Future of Judicial Independence.” Third Circuit Judges McKee, Scirica, and Rendell also will be presenting. There are too many other notable presenters to list them all, but they include Paul Clement, Kathleen Sullivan, and Linda Greenhouse. A link to the complete agenda is here.

The lead organizer of the event appears to be the Rendell Center for Civics and Engagement, the civics nonprofit founded in 2014 by Judge Rendell and former Governor Ed Rendell.

You can register to attend at this link. Registration is $75. For lawyers, 7.0 hours of Pa. CLE credit (including a welcome 3.5 hours of ethics credit) are available for an additional $280 fee ($70 for public interest or non-profit attorneys). Seating is limited, so if you want to attend don’t delay registering.

I’m going—I can’t imagine not going. I hope to see you there.

Third Circuit judges are running the place

Four of the 12 chairs of Judicial Conference committees named this year will be Third Circuit judges, a remarkable sign of Chief Justice Roberts’s confidence in the courts’ judges.

Yesterday the Judicial Conference announced Chief Justice Roberts’s committee chair appointments for this year. The 12 chairs named this year include one judge each from the Second, Sixth, and D.C. Circuits and five district judges from five different districts … and four Third Circuit judges:

  • Judge Fisher is the new chair of the Committee on Federal-State Jurisdiction;
  • Judge Chagares continues as chair of the appellate rules advisory committee;
  • Judge Hardiman continues as chair of the information-technology committee; and
  • Judge Scirica continues as chair of the Committee on Judicial Conduct and Disability.

The chairs appointed this year cover about half of all Judicial Conference committees; chairs serve initial terms of three years subject to one reappointment, so the other half of the committees weren’t up this year.

The Mighty Third, indeed.

New opinion: getting a TRO to block sports betting turns out to have been a bad gamble

NCAA v. Governor—civil—reversal—Rendell

A party seeking a temporary restraining order has to pay a bond to cover damages sustained if the other side is found to have been “wrongfully enjoined.” So if the district court grants your TRO request but the court of appeals reverses, it’ll cost you. But what if your TRO request was rock solid under controlling precedent at the time you sought the TRO, but the other side persuades the Supreme Court to overrule that precedent? Do you still have to cough up damages?

On Tuesday, the Third Circuit answered that question affirmatively. If the TRO was right when it issued but turns out to have been wrong in the end, then enjoining was wrongful and the TRO’s seeker has to pay.

The issue arose in an interesting context. Recall that, in 2013 and then again in 2016, en banc, the Third Circuit rejected New Jersey’s effort to legalize sports betting. During the second round of litigation, the NCAA and four pro sports leagues got a TRO barring sports betting from starting. But the Supreme Court unexpectedly granted cert and then reversed both Third Circuit decisions, holding that the federal statute barring sports betting violated the Tenth Amendment’s anti-commandeering principle. So the operators of a racetrack argued that they’d been wrongfully enjoined and sought damages on the $3.4 million bond. The district court said no, but the Third Circuit vacated and remanded to calculate the damages. Ironic that the sports leagues’ effort to block gambling turned out to have been a gamble.

Joining Rendell was McKee; Porter dissented in part, arguing that the injunction wasn’t wrongful because it was based only on the statute not its constitutionality. Fascinating split. Arguing counsel were Jeffrey Mishkin of Skadden for the leagues and Ronald Riccio of McElroy Deutsch for the racetrack operators.

New opinion on SEC enforcement injunctions

SEC v. Gentile—civil / securities—reversal—Hardiman

The Third Circuit held today that the statute of limitations which applies to civil fines and penalties, 28 USC § 2462, does not apply to Securities and Exchange Commission enforcement actions seeking injunctions barring future violations and limiting future trading, deepening a circuit split on the question. The court remanded for the district court to decide whether the injunctions sought here are authorized by law.

Joining Hardiman were Krause and Greenberg. Arguing counsel were Dnaiel Staroselsky for the SEC and Adam Ford of New York for the appellee.

Two new opinions

These two opinions issued yesterday but were posted on the court’s website late due to technical issues and I didn’t see them until this morning.


Pomicter v. Luzerne County Conv. Ctr.—First Amendment—partial reversal—Scirica

An animal-rights group sought to protest a circuit being held at a county convention center and were told that they must stay inside enclosed areas near the entrance and must not use profanity or voice amplification. The group sued, alleging that these protest policies facially violated their First Amendment free speech rights. The district court agreed, but yesterday the Third Circuit reversed in part. The protesters conceded that the convention center was a nonpublic forum, where restrictions on speech are constitutional if reasonable, and the Third Circuit held that the enclosure requirement was reasonable, but that the bans on profanity and voice amplification were not.

Joining Scirica were Ambro and Greenaway Jr. Arguing counsel were Thomas Campenni of Rosenn Jenkins & Greenwald for the convention center and former Greenberg clerk Alexander Bilus of Saul Ewing for the protesters.


Prometheus Radio Project v. FCC—civil / telecom—partial affirmance—Ambro

“Here we are again,” begins the Third Circuit’s opinion in the latest round of litigation challenging Federal Communications Commission rules on broadcast media ownership. The court (1) upheld the FCC’s rule barring mergers by two of the top four stations in a market, and (2) upheld provisions of the FCC’s incubator program for helping new entrants break into the broadcast industry, but (3) vacated the bulk of the FCC’s actions over the past three years involving broadcast ownership by women and racial minorities: ” Although it did ostensibly comply with our prior requirement to consider this issue on remand, its analysis is so insubstantial that we cannot say it provides a reliable foundation for the Commission’s conclusions.”

Joining Ambro was Fuentes; Scirica dissented in part, arguing that the FCC’s actions all pass muster and should be allowed to go into effect. Arguing counsel were Cheryl Leanza of Washington D.C. for one group of petitioners, Dennis Lane of D.C. for another petitioner group, Jack Goodman of D.C. for another petitioner group, Helgi Walker of Gibson Dunn for an intervenor, and Jacob Lewis for the FCC.

New opinion—Rooker-Feldman again

Malhan v. Secretary U.S. Dep’t of State—civil—partial reversal—Hardiman

Two big Third Circuit Rooker-Feldman opinions in less than a week is either a nightmare or pinch-me-I’m-dreaming, depending on your civpro-nerdiness quotient. On the heels of last week’s epic Rooker-Feldman opinion in Weber v. McGrogan, today the court ruled that a man’s federal suit challenging his child-support payments was free to proceed despite an interlocutory state-family-court order that made findings against him. The opinion synthesizes tricky Supreme Court and Third Circuit Rooker-Feldman precedent quite impressively. Younger abstention, too.

Joining Hardiman were Chagares and Goldberg EDPA by designation. Arguing counsel were Paul Clark of Jersey City, New Jersey for the father and Ragner Jaeger of the New Jersey attorney general’s office for the defendants.

What lawyers can learn about typography from a Bibas opinion

Yesterday I opined that the typography in Judge Bibas’s opinions was the best typography on the Third Circuit “by a country mile.” Lawyers looking to improve the appearance and readability of their briefs could learn a thing or nine from Judge Bibas’s opinions.

Let’s take a closer look at specific things Judge Bibas gets right that oh-so-many lawyers get wrong:

  • Heading capitalization His claim headings, both in the opinion body and the table of contents, use Title Caps not ALL CAPS. The subsidiary headings all use neither. Only the section headings in the body of the opinion use all caps (and even there he uses small caps—and not in the table of contents). The key point: no unreadable multi-line all caps headings. Most briefs still get this wrong and, to any reader who cares about typography, it’s like showing up for your oral argument wearing a propeller cap. Sorry.
  • One space after periods
  • Zero underlining, and easy on the boldface
  • Smaller paragraph indents Just say no to those goofy 1-inch paragraph indents so many lawyers still adore, at least.
  • Hyphenation on with justified text
  • Better line spacing Opinions are single-spaced, but Judge Bibas uses slightly more open line-spacing to improve readability. What a difference: notice how much more visually pleasing it is to read the majority opinion than the dissent. The rules for briefs prevent lawyers from single-spacing (alas) but we can get closer to the ideal by using 28-point line spacing (ie.e. actual double-spacing for 14-point type) instead of Word’s default double-spacing.
  • Hard spaces after § symbols
  • No orphan headings (“keep with next” setting in Word)
  • Using a bulleted list for emphasis
  • En dashes for number ranges
  • Real em dashes Not double hyphens autocorrected into en dashes
  • Citations in text not footnotes With more judges reading briefs on tablets, this has gone from the majority choice to the correct choice for lawyers.

Put it all together and it looks terrific. With a little effort up front, your briefs could look almost this good too. (Good luck matching Judge Bibas’s clear writing, though.)

Sure, a professional typographer could still pick some nits. Using Times New Roman is the biggie; CA3 judges may not have the option of picking a better font, but lawyers do and should. I use Equity for maximum font-nerd cred. And using soft returns (shift + return in Word) and hanging indents in your tables of contents makes the structure easier for readers to see.

To learn more about good typography, the indispensable resource is Matthew Butterick’s book Typography for Lawyers, now in its second edition. If the appellate lawyer you were thinking about hiring doesn’t own a copy, keep on looking. Other reliable resources that are free include Butterick’s superb website and the Seventh Circuit’s typography guide.

Five new opinions, four of them reversals

Five opinions again today! Some long ones, too. “What a pleasure,” and “I’m doomed,” both.

Northeastern Pa. Freethought Society v. County of Lackawanna Transit System—First Amendment—reversal—Hardiman

[Disclosure: I assisted counsel for the atheist group on appeal, mainly by serving as a judge at an oral-argument moot.]

The Third Circuit today held that a county bus system violated the First Amendment by refusing to display an ad that read “Atheists” on the sides of its busses. The bus system barred any ads with religious messages, and the court held that this policy was viewpoint discrimination, splitting with a D.C. Circuit case with a pending certiorari petition. Even if barring speech on religious issues weren’t viewpoint discriminatory, the policy here still would fail as a content-based restriction because the bus system failed to show that its policy was reasonable.

Joining Hardiman was Porter; Cowen dissented, arguing that the bus system’s policy was not viewpoint-discriminatory and was reasonable. Arguing counsel were Molly Tack-Hooper of the Pa. ACLU for the atheist group and Thomas Specht of Marshall Dennehey for the bus system.


USA ex rel. Bookwalter v. UPMC—civil / qui tam—reversal—Bibas

The Third Circuit today reversed the dismissal of a suit under the False Claims Act and the Starks Act alleging healthcare fraud. From the introduction:

This appeal revolves around two questions: First, do the relators offer enough facts to plausibly allege that the surgeons’ pay varies with, or takes into account, their referrals? Second, who bears the burden of pleading Stark Act exceptions under the False Claims Act?

It answered the first question yes, and the second the defendants.

(Have I opined already that Judge Bibas’s opinions have the best typography on the court by a country mile?)

Joining Bibas was Fuentes; Ambro concurred in the judgment, arguing that the majority construed the Stark Act too broadly. Both opinions are masterfully written. Arguing counsel were Gregory Simpson of Georgia for the appellants and Jessica Ellsworth of Hogan Lovells for the appellees.


Howell v. Superintendent Rockview SCI—habeas corpus—affirmance—Fisher

After an all-white jury convicted a man of felony murder in Pennsylvania’s Allegheny County, the man filed a habeas corpus petition claiming that the county systematically excluded African Americans from the pool of potential jurors. His evidence showed that African Americans were over 10% the jury-eligible population but less than 5% of the jury pool. Today, the Third Circuit affirmed the denial of relief on his fair cross-section claim, on several grounds: his data was unreliable because it was derived from returned jury questionnaires without adequately accounting for unreturned questionnaires, the absolute and relative disparities he showed weren’t big enough, there was no readily identifiable cause for the disparity, the process was facially neutral, the disparity study only covered six months, and the county took various steps purportedly to reduce the disparity. On the bright side for habeas petitioners, the court held that the state court’s ruling had been contrary to and an unreasonable application of federal law under 28 USC § 2254(d)(1).

Judge Porter concurred, noting that he would not have reached the data-reliability point and underscoring that the county’s jury-selection goes beyond what the constitution requires by using motor-vehicle records in addition to voter-registration lists.

Judge Restrepo dissented, arguing that the petitioner’s evidence was strong enough and the Commonwealth had presented no contrary evidence, that the majority opinion “sets forth a new standard of statistical purity that will foreclose nearly all fair-cross-section claims,” and that the majority’s reasoning forecloses relief any time the excluded group constitutes less than 10% of the population: “Such an interpretation simply cannot be an accurate statement of the law.”

Arguing counsel were Loren Stewart of the EDPA federal defenders for the petitioner and Rusheen Pettit of the Allegheny County D.A.’s office for the Commonwealth.


Bank of Hope v. Chon—First Amendment—reversal—Bibas

When a bank sued a former executive for embezzlement, the former executive sent letters to shareholders disputing the banks allegations hoping to pressure it to settle. The district court banned the former executive from contacting shareholders, but today the Third Circuit vacated its order on the grounds that it “marshaled no evidence that this restriction on speech was needed to protect the trial’s fairness and integrity” and it failed consider less-restrictive alternatives.

Joining Bibas were Jordan and Matey. Arguing counsel were Stephen Harvey of Steve Harvey Law for the former executive and Michael Yi of New York for the bank.


Fed Cetera v. National Credit Services—civil / contract—reversal—Fuentes

A debt collector signed a contract with another company promising to pay the company a finder’s fee if it “consummated” a deal with the government during a set time period. The debt collector signed a contract with government during the time period, but didn’t start work on that contract until after the period was over. The debt collector argued that it didn’t owe the finder’s fee  because the deal wasn’t “consummated” when its deal was signed, only when it began performance. The Third Circuit concluded otherwise.

Joining Fuentes were Krause and Cowen. Arguing counsel were Michael McMcCaney Jr. (formerly?) of Keller & Goggin for the finder and Arthur Fritzinger of Cozen O’Connor for the debt collector.

Two new opinions: insurance coverage and arbitration

Sapa Extrusions v. Liberty Mutual Insurance—civil / contract / insurance—partial reversal—Porter

The Third Circuit today decided a Pennsylvania insurance-coverage dispute, partially reversing a ruling in the insurers’ favor.

In the underlying lawsuit, a company that made parts used in windows was sued by the window maker after customers complained that the parts were rusting. The partmaker settled with the window company for “a large sum.”

The partmaker then sought to recover under the 28 (!) different commercial general liability policies it had purchased. One might imagine that, if you’re a company who makes a part, the big reason you buy liability insurance is precisely to cover you if you get sued over your part, no? But evidently that point was in doubt given Pennsylvania caselaw involving what occurrences trigger insurance coverage, and the district court ruled that the 28 policies provided zero coverage.

Today, the Third Circuit reversed in part. Focusing on the specific language of the different policies, the court held that under Pennsylvania law most of the policies did not provide coverage because the problems with the part were not unforeseeable, fortuitous events. But the court revived the partmaker’s claims as to nine of the policies which used different language to define coverable occurrences.

Joining Porter were Restrepo and Fisher. Arguing counsel, all three of them top-shelf advocates, were James Martin of Reed Smith for the partmaker, and Teresa Ficken Sachs of Marshall Dennehey and Stephen Cozen of Cozen O’Connor for the insurers. Audio of the argument is here.


In re: Remicade Antitrust Litigation—civil / arbitration—reversal—Krause

The Third Circuit today held that a drug wholesaler’s antitrust claims against a pharmaceutical maker for price inflation were covered by an arbitration agreement between the two companies covering any “controversy or claim arising out of or relating to” their distribution agreement. A key issue in the appeal was whether federal or state law governed interpretation of the arbitration clause; the opinion’s bottom line was that non-preempted state law generally governed when it dictated a clear outcome. Applying New Jersey law, the court concluded that the arbitration clause covered the antitrust claims here.

Joining Krause were Shwartz and Fuentes. Arguing counsel were William Cavanaugh Jr. of Patterson Belknap for the pharmaceutical maker and David Sorensen of Berger Montague for the wholesaler.

Five new opinions

Weber v. McGrogan—civil—dismissal—Matey

A woman filed a pro se lawsuit in federal court arising from “her experiences dealing with New Jersey public officials during a child custody matter.” When she filed it, the custody dispute was still being litigated in state court. The district court dismissed her suit on Rooker-Feldman or Younger-abstention grounds, but its dismissal was without prejudice. The pro se plaintiff filed a notice of appeal, was notified by the court the ruling wasn’t final, asked the district court to issue a final ruling, and then agreed to dismiss her appeal. The defendants then asked the district court to dismiss with prejudice because she hadn’t amended, and response, the district court entered a docket entry stating that the case was terminated and citing the prior dismissal with prejudice.

So, was either (1) the docket entry terminating the case, or (2) the earlier order dismissing with prejudice as appealable final order? Today, the court answered this “surprisingly elusive” question in the negative. The docket entry wasn’t a final order because it was a “utility event” instead of a text order. The earlier dismissal wasn’t appealable either, despite prior Third Circuit cases allowing appeals by litigants choosing to stand on their complaint without securing a dismissal with prejudice because the pro se woman’s intent to stand on her complaint here wasn’t clear enough. So the court concluded that the woman still has a live action in district court and that she is free to appeal, again, after the district court enters a final order.

Starting in the introduction and continuing throughout the opinion, Judge Matey employs an epic-journey theme. For example, the opinion opens with a quote from Ulysses and then observes that finality is required for appellate jurisdiction because “an epic poem of problems often follows when charting any other course.” The recitation of the procedural history notes at one point, “And that is where the story begins its journey into mystery.” This style of writing has not been common in the Third Circuit, and it will be interesting to see whether Judge Matey, uh, continues down this path.

Joining Matey were Jordan and Bibas. Arguing counsel were Christopher Zirpoli of Covington & Burling as court-appointed amicus for the plaintiff and Michael Sarno of the NJ office of the attorney general for the state. The court thanked court-appointed counsel for his “able assistance.”


Sorry, dear reader, but when the court issues five opinions (!) in one day, and you go on for four paragraphs about the first one, and you’re actually a busy lawyer not a blogger, then the other four cases don’t get their due.

U.S. v. Aviles—criminal—reversal—Rendell

The Third Circuit today vacated a defendant’s sentence because it held that at least two of the prior convictions upon which the sentence was based did not qualify as felony drug offenses under 21 USC § 841.

Joining Rendell were McKee and Roth. Arguing counsel were MDPA AUSA Stephen Cerutti II for the government and MDPA AFPD, and former Fisher clerk, Quin Sorenson for the defendant.


North Sound Capital v. Merck—civil—reversal—Krause

The introduction:

In these consolidated appeals, we consider whether the Securities Litigation Uniform Standards Act (SLUSA) prohibits investors from bringing individual actions under state law if they exercise their constitutionally protected right to opt out of a class action. Hewing to SLUSA’s text, we conclude that these opt-out suits and the class actions from which these plaintiffs excluded themselves were not “joined, consolidated, or otherwise proceed[ing] as a single action for any purpose.” 15 U.S.C. § 78bb(f)(5)(B)(ii)(II). Accordingly, we will reverse the District Court’s dismissal of these suits and remand for further proceedings.

Joining Krause was Bibas; Shwartz dissented, arguing that the opt-out actions functioned as a single action with the class action and thus were properly dismissed. Arguing counsel were Daniel Hume for the appellants and Daniel Kramer for the appellees.


Chang v. Children’s Advocacy Center of Del.—civil / qui tam—affirmance—Porter

The Third Circuit today ruled that district courts are not statutorily required to hold an in-person hearing before dismissing a complaint under the False Claims Act and Delaware’s state-law analog.

Joining Porter were McKee and Rendell. Arguing counsel were Michael Confusione of Hegge & Confusione for the appellant and Dylan Steinberg for the government.


In re: Hackler—bankruptcy—affirmance—Roth

The Third Circuit held that a real-estate-title transfer under New Jersey’s tax foreclosure procedures may be voided under section 547(b) of the bankruptcy code.

Joining Roth were McKee and Porter. Arguing counsel were Elliott Almanza of Goldenberg, Mackler for the appellant and Leonard Walczyk of Wasserman, Jurista & Stolz for the appellee.

Third Circuit sets up workplace conduct committee and hires a director

The Third Circuit today announced the formation of a Workplace Conduct Committee and the appointment of its first Director of Workplace Relations. A link to the announcement is here.

The committee “will examine existing Third Circuit policies and procedures for preventing and addressing workplace misconduct” and “will present recommendations to the Judicial Council on how to promptly and effectively process complaints of such misconduct. Chief Judge Smith will chair the committee and its other members include six judges plus Circuit Executive Margaret Wiegand. I suspect it is not an accident that five of the eight committee members, including Third Circuit Judge Shwartz, are women.

The circuit’s new Director of Workplace Relations is Julie Procopiow Todd, who currently is an an administrative judge for the EEOC. The director ” will coordinate implementation of employment dispute resolution policies for all courts within the Third Circuit” and “create a circuitwide workplace conduct office that will not only develop proposed policies but also provide trainings aimed at fostering healthy working environments and the fair resolution of workplace issues.”

Said Chief Judge Smith in the announcement, “Ms. Todd’s background in EEOC matters is an invaluable asset, and one that will redound to the great benefit of the entire Third Circuit as we continue our efforts to provide a safe, hospitable, and efficient workplace for all.”

Two interesting reversals: one on Eleventh Amendment grounds, the other in a prisoner-civil-rights case

This fall I’m fortunate enough to be a lecturer at Penn Law teaching appellate advocacy. (Co-teaching actually, with Pa. Innocence Project legal director and fellow Third Circuit Bar board member Nilam Sanghvi.) Yesterday I was scrambling to prepare last night’s class, so I’m posting about yesterday’s two interesting published decisions the day after.


In re: PennEast Pipeline Co.—civil / Eleventh Amendment—reversal—Jordan

The PennEast Pipeline Company plans to build a controversial natural gas pipeline through New Jersey and Pennsylvania. To acquire the land where the pipeline would go, PennEast wants to seize lots of properties through eminent domain, including 42 properties that are owned by the state of New Jersey. The company claimed authority to seize the properties under the Natural Gas Act of 1938, which lets private gas companies use the federal government’s eminent-domain power. New Jersey fought the company’s condemnation actions, asserting Eleventh Amendment state sovereign immunity, but the district court rejected the state’s argument and let the company’s condemnations proceed.

The Third Circuit vacated and remanded, holding that the company’s condemnation suits involving state property were barred by Eleventh Amendment sovereign immunity.  It held that (1) the NGA did not abrogate states’ sovereign immunity and (2) delegating federal eminent-domain power did not delegate federal power to overcome state sovereign immunity. The court recognized that its ruling could disrupt how the natural gas industry has long operated. It explained that gas pipelines “can still proceed” with the government itself doing the condemning of state property, but it acknowledged that new Congressional authorization could be required for this. “In any event, even if the federal government needs a different statutory authorization to condemn property for pipelines, that is an issue for Congress, not a reason to disregard sovereign immunity.”

Joining Jordan were Bibas and Nygaard. Arguing counsel were Jeremy Feigenbaum of the NJ attorney general’s office for the state and James Graziano of Archer & Greiner for the pipeline company.


Garrett v. Wexford Health—prisoner civil rights—reversal—Smith

Courts are often criticized for treating cases with wealthy litigants more seriously than cases with poor ones. It’s a fair criticism in my view, but there are exceptions and this case is a glimmering one.

Kareem Garrett was a state prisoner who needed a wheelchair and a walker to get around. After he was transferred to a different prison, the new prison allegedly took away his wheelchair and walker and forbade him from getting assistance from his fellow inmates. Unable to get around, he injured himself falling and wasn’t able to get to the doctor, bathe himself, or get food to eat. So, with no lawyer to help him, Garrett filed a civil rights complaint against officials at the prison, alleging that they denied him needed medical devices, disciplined him for asking for help walking, and laughed when he fell and struggled on the floor.

The corrections office rejected his grievances, concluding that his medical care had been reasonable and no evidence of neglect was found. In district court, Garrett asked for appointment of counsel but was denied. He filed various amendments alleging more factual details and trying to refine his legal claims, with his final amended complaint filed after his release from prison. The district court ultimately dismissed some of his claims for failing to administratively exhaust, and it dismissed the rest for failing to comply with Civil Rule 8’s “short and plain statement” requirement. Undaunted, Garrett appealed.

On appeal, Garrett finally got counsel to represent him pro bono: a Penn Law student supervised by two lawyers at Dechert. (The opinion doesn’t say it, but my understanding is that the decision to seek appointment of pro bono counsel in deserving prisoner appeals is made by the court.) And yesterday, in a 49-page precedential opinion that is thorough, careful, and magnificent, the Third Circuit ruled in Garrett’s favor.

First, the court held that Prisoner Litigation Reform Act’s administrative-exhaustion requirement doesn’t apply to claims filed by former prisoners after their release. So refiling his claims after his release cured any administrative-exhaustion defect, it held, disagreeing with an Eleventh Circuit decision. The court also held that the post-release-filed claims were timely because they related back to the original complaint, acknowledging that this holding conflicted with a recent Tenth Circuit decision.

Second, the court held that the district court abused its discretion by broadly dismissing Garrett’s pro se claims on Rule 8 short-and-plain-statement grounds, underscoring the “even more pronounced” liberal construction courts should apply to pro se pleadings and noting that the defendants’ responses to his claims demonstrate their ability to engage them.

Joining Smith were Chagares and Greenaway Jr. Arguing counsel were Justin Berg (then a Penn Law student, now clerking for an EDPA judge) for the prisoner and, for various defendants, Samuel Foreman of Weber Gallagher, Kemal Mericli of the Pa. attorney general’s office, and Cassidy Neal of Mattis Baum & O’Connor. The opinion expressed the Court’s gratitude to Berg and Stuart Steinberg and Cory Ward of Dechert “for donating their time and talent in accepting this pro bono appointment and for zealously representing Kareem Garrett before our Court.”


Third Circuit grants panel rehearing on § 924(c) issue

The Third Circuit today granted panel rehearing to reconsider a criminal appeal. The order granting rehearing is here, and the prior non-precedential opinion is here. The case is U.S. v. Walker, No. 15-4062.

The original panel opinion, inter alia, denied the defendant’s challenge to his firearms conviction under 18 U.S.C. § 924(c)(3). A couple weeks after the panel issued its opinion, the Supreme Court held in U.S. v. Davis that § 924(c)(3)(B) is unconstitutionally vague.

Today’s rehearing order states:

The petition for rehearing filed by appellant in the above-entitled case having been submitted to the judges who participated in the decision of this Court, it is hereby ORDERED that the petition for rehearing by the panel is granted. The opinion and judgment entered on June 5, 2019, are vacated. The parties are directed to file supplemental letter briefs, limited to five single-spaced pages, addressing the significance of United States v. Davis, 139 S. Ct. 2319 (2019), for the proper disposition of this case. The supplemental letter briefs should be directed to the panel and must be filed within fourteen days.

The prior panel opinion was authored by Judge Krause and joined by Judges Jordan and Roth, and today’s order was signed by Judge Krause for the court.

Third Circuit upholds procedural challenges to man’s deportation

Luziga v. Attorney General—immigration—reversal—Fisher

Here’s the introduction of today’s Third Circuit opinion granting a Tanzanian man’s immigration petition for review:

An Immigration Judge (IJ) decided, and the Board of Immigration Appeals (BIA) agreed, that Petitioner Ayub Luziga is ineligible for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT) because he was convicted of a “particularly serious crime,” and that he is not entitled to deferral of removal under the CAT  because he failed to carry his burden of proof. Luziga requests our review, arguing that the IJ and BIA made two legal errors. First, Luziga argues that the IJ and BIA misapplied the framework for making particularly serious crime determinations, a framework the BIA itself has established in its precedential opinions. Second, Luziga argues that the IJ failed to observe the rule we articulated in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), requiring immigration judges to notify a noncitizen in removal proceedings that he is expected to present corroborating evidence before finding that failure to present such evidence undermines his claim. We agree that the IJ and BIA erred in these respects; therefore, we will grant Luziga’s petition for review, vacate the underlying order, and remand.

On the first point, misapplication of the particularly-serious-crime framework, the IJ and BIA were required to consider separately the elements of his crime but failed to do so, focusing instead on the facts of the crime.

On the second, corroboration point, the opinion was blunt: “what we prohibit is failing to notify the noncitizen of an unspoken expectation and then penalizing him for failing to meet it,” and “we strictly enforce this rule.”

Joining Fisher were Ambro and Restrepo. Arguing counsel were Khary Anderson for the petitioner and Jennifer Khouri of the DOJ for the government. In a footnote, the court ” express its gratitude to a recent graduate of the University of Pennsylvania Law School, Khary Anderson, and his supervising lawyers, Joseph Patrick Archie and Christopher J. Mauro of Dechert LLP, for their excellent pro bono representation of the Petitioner in this matter.” Not a bad way to start a legal career.

Divided Third Circuit rules that immigration statute’s differential treatment of fathers and mothers violates equal protection

Tineo v. AG—immigration / equal protection—reversal—Greenaway Jr.

Today’s lone precedential Third Circuit case involves an interesting gender-based equal protection challenge to the statutory regime that controls how parents who are U.S. citizens are able to pass citizenship to their children. To over-simplify, the statutes impose some limits on fathers’ ability to pass citizenship to their children that don’t apply to mothers. The petitioner in this case is a citizen of the Dominican Republic who came to the U.S. as a teenager but now faces deportation. His father was a naturalized citizen who was unable (due to the workings of the statute) to pass his citizenship along to him, while his mother would have been able to were she still alive. So he challenged his removal by challenging the statutory regime on gender-discrimination grounds.

The Third Circuit ruled in the petitioner’s favor. It held that intermediate scrutiny applied, and that the gender classification here failed because the government failed to show that it served an important governmental interest today. It further rejected the government’s argument that it should leave any remedy to Congress, holding that the petitioner was entitled to the statutory benefit available to petitioners with similarly situated mothers.

Chief Judge Smith dissented in part, agreeing that intermediate scrutiny applied but arguing that the classification met it.

Joining Greenaway Jr. was Krause, with Smith dissenting in part. Arguing counsel were Nick Curcio of Michigan for the petitioner and Stefanie Hennes of the DOJ for the government.


New opinion: a noteworthy habeas reversal

Velazquez v. Superintendent Fayette SCI—habeas corpus—reversal—Greenaway

In a notable habeas case, the Third Circuit today reversed a district court’s denial of relief and held that the petitioner’s trial counsel provided ineffective assistance of counsel in connection with his attempted defense of guilty but mentally ill (GBMI). Pennsylvania law provides that no GBMI plea may be accepted until the judge has examined  the relevant mental-health-expert reports, held a hearing, and determined whether defendant was mentally ill at the time of the offense. In this case, the defendant said he wanted to plead GBMI, but the trial court took a straight guilty plea while promising to hold a GBMI hearing later. The trial lawyer never submitted reports, and the court never reviewed reports, held a hearing, or decided whether the defendant was mentally ill.

A claim for ineffective assistance of counsel has two prongs: deficient performance and prejudice. In the part of the case likely to have the broadest future application, the Third Circuit held that trial counsel’s performance “easily” qualified as deficient given his failure to research a key point of law, namely the applicable GBMI procedures. The harder question was whether the inmate had shown prejudice, especially because a GBMI plea wouldn’t have reduced the length of the sentence he received. The court held that proving prejudice required only demonstrating that he would have pled GBMI, not that the plea was likely to be accepted nor that a lesser sentence would have resulted.

The case also had a jurisdictional wrinkle. The court held that the district court erred by taking at face value the petitioner’s characterization of the relief sought and thus concluding that his claim wasn’t cognizable. The district court should have recognized that the claim was cognizable, imperfect pleading notwithstanding, and even if it weren’t the district court shouldn’t have dismissed it yet.

Having held that the petitioner was entitled to relief on his ineffective-assistance claim, the court remanded to district court with instructions to grant the habeas petition and to vacate the petitioner’s present judgment.

Joining Greenaway were Smith and Chagares. Arguing counsel were Rosemary Auge of the EDPA federal defenders for the inmate and Travis Anderson of the Lancaster County DA’s office for the Commonwealth. The opinion praised the petitioner’s current counsel, Auge and Arianna Freeman, for “skillfully and diligently” catching a misreading of the record made by every court and lawyer before and persuading the court to hear the petitioner’s GBMI claim.

It’s Judge Ambro Day at the Third Circuit

I posted earlier about the en banc decision issued today in the TSA-tort-liability case, in which the opinion for the court was authored by Judge Ambro. The court issued two panel opinions today too, and both of them were authored by Judge Ambro as well. Three published opinions by one judge issued on the same day? Impressive. Pretty sure this is the first time that’s happened in the five-plus years I’ve been doing the blog.

Verma v. 3001 Castor, Inc.—civil / employment — affirmance —Ambro

The cogent introduction:

A jury in the District Court awarded more than $4.5 million to a class of dancers at the Penthouse Club, an “adult gentleman’s club” in Philadelphia owned and operated by 3001 Castor, Inc., for unpaid minimum wages and unjust enrichment under Pennsylvania law. The Court denied the motion of Castor to set aside the verdict, and it appeals to us. We join our District Court colleague, Judge Brody, in concluding that, as a matter of “economic reality,” the dancers were employees of Castor, not its independent contractors, and we reject Castor’s novel argument that the federal Fair Labor Standards Act (“FLSA”) precludes the class’s claims for unjust enrichment. We also conclude that Castor is not entitled to any credit or offset against the jury award for payments already received by the dancers. We thus affirm across the board and sustain the jury’s verdict.

Joining Ambro were Greenaway and Scirica. Arguing counsel were John Innelli of Philadelphia for the club and Jamisen Etzel of Carlson Lynch for the dancers. So, two men argued this appeal in front of a panel made up of three men: not how it oughtta be.


Matheis Jr. v. CSL Plasma—civil / disability—reversal—Ambro

The Third Circuit held that plasma-donation centers are subject to the Americans with Discrimination Act’s bar on unreasonable discrimination by “service establishments,” joining the Tenth Circuit in a split with the Fifth.  The court further held that the district court erred in dismissing an ADA challenge to a center’s bar on plasma donations by anyone who uses a psychiatric service animal.

Joining Ambro were Restrepo and Fisher. Arguing counsel were Zachary Nahass of the CGA law firm for plaintiff, Bruce Douglas of Ogletree Deakins for the center, and John Delacourt of the Plasma Protein Therapeutics Association for amicus.

En banc Third Circuit rules that TSA screeners aren’t immune from tort suit

Pellegrino v. U.S.A. Transportation Security Admin.—civil—reversal—Ambro

The en banc Third Circuit today held that TSA officers not immune from suit for intentional torts. The Federal Tort Claims Act waives federal sovereign immunity for specified intentional torts “investigative or law enforcement officers,” defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” TSA screeners meet that definition, the court held, and “Words matter.”

The en banc court split 9 to 4. The majority: Chief Judge Smith and Judges Ambro, McKee, Chagares, Greenaway, Shwartz, Restrepo, Bibas, and Porter. The dissenters: Judges Jordan, Hardiman, Krause, and Scirica. (Judges Matey and Phipps joined the court after the oral argument and thus did not participate per circuit practice.) It’s a fascinating, ideologically fractured split sure to generate lots of conversation and tea-leaf reading by court watchers.

The panel decision had come out the other way, with Judges Krause and Scirica the majority and Judge Ambro dissenting.

Judge Krause dissented with gusto, describing the majority’s reading of the statute as “breathtaking”  and “textually unsound” and arguing that it creates a circuit split.

Arguing counsel were Paul Thompson of McDermott Will for the plaintiffs and Mark Sherer for the screeners and the government.

New opinion: plaintiff adequately alleged deliberate indifference in suit arising from mentally ill man’s suicide during police encounter

Haberle v. Borough of Nazereth—civil rights / disability—reversal—Scirica

The first time this case was before the Third Circuit, the court partially reversed the district court’s dismissal, holding that the American with Disabilities Act applies to police officers making an arrest and remanding to let the plaintiff amend her claim. I summarized that opinion as follows:

A severely depressed man with a gun was in an apartment threatening to kill himself. Fearing for the man’s life, his longtime partner called the Nazareth, PA, police to help. But instead of waiting for trained crisis negotiators to arrive, a local police officer called his fellow officers “a bunch of fucking pussies” and decided to go in himself because “[t]his is how we do things in Nazareth.” When the officer knocked on the door and identified himself as a police officer, the man inside killed himself.

The man’s estate sued the officer and the borough, alleging various constitutional violations and violation of the Americans with Disability Act. The Third Circuit yesterday upheld the dismissal of the constitutional claims, holding that the officer’s conduct does not shock the conscience, but remanded to allow the plaintiff to amend her ADA claim, holding that the ADA applies to police officers making an arrest.

On remand, the plaintiff amended her ADA claim, the district court dismissed again, and the plaintiff appealed again. Today, the Third Circuit reversed again, holding that the plaintiff’s allegations of deliberate indifference were sufficient because she “alleges facts that support a history of encounters between disabled individuals and Department personnel that resulted in harm to those individuals, the Department’s awareness of those encounters and their risks, and its failure to adopt an offered policy to address them.”

Joining Scirica were Ambro and Greenaway. The appeal was decided without oral argument.

New opinion—trial court erred in reducing punitive damages based on nominal-damages award

Jester v. Hutt—civil—partial affirmance—Hardiman

The Third Circuit today upheld a civil verdict in favor of a horse-boarding facility for breach of contract and defamation. The boarding facility had brought the claims against an owner of horses it had boarded, and the horse owner had countersued for negligence and related claims. The jury found for boarding facility and awarded compensatory and nominal damages plus $89,999 in punitive damages, which the trial court reduced to $5,500.

Both sides appealed, and the Third Circuit sided with the boarding facility. The court rejected the horse owner’s challenges to the verdict, and it vacated the trial court’s reduction of the punitives award. It held that precedent requiring proportionality between punitive damages and compensatory damages doesn’t apply to nominal damages, so the trial court erred in relying on the $1 nominal-damages award for defamation as a basis for slashing the jury’s punitives award.

Joining Hardiman were Porter and Cowen. Arguing counsel (not labeled as such in the opinion, but confirmed by the audio) were Gordon Einhorn of Thomas Thomas & Hafer for the horse owners and Mark Bradshaw of Stevens & Lee for the boarding facility.

Third Circuit rejects challenge to legislative prayer, grants en banc rehearing in Amazon third-party-vendors case

Fields v. Speaker of the Pa. House of Representatives—civil / First Amendment—partial affirmance—Ambro

The Pennsylvania House of Representatives opens legislative sessions with a prayer by a guest chaplain, but it bars nontheists from giving these prayers. Today, the Third Circuit rejected several constitutional challenges to the theistic-prayer-only policy. “As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power.” The court also held that the House’s request that visitors rise for the prayer was constitutional because it was not coercive.

[Disclosure: I provided some minor consulting assistance on appeal to counsel for the challengers.]

Joining Ambro was Fisher. Restrepo dissented in part, arguing that the House policy violates the establishment clause because it “purposefully excludes adherents of certain religions and persons who hold certain religious beliefs from serving as guest chaplains.” Arguing counsel were Karl Myers of Stradley Ronon for the House Speaker and Alexander Luchenitser of Americans United for Separation of Church & State for the challengers.


Also today, the court granted rehearing en banc in Oberdorf v. In Oberdorfer, a divided panel had held that, under Pennsylvania law, Amazon was a seller in third-party-vendor sales and thus strictly liable for defective products sold by other vendors on its website. The now-vacated panel opinion is here, my blog post is here.

New opinion—filing deadline for railway-worker whistleblower claims isn’t jurisdictional

Guerra v. Consolidated Rail Corp.—civil—affirmance—Porter

The Federal Railway Safety Act requires employees alleging whistleblower retaliation to file an agency complaint within 180 days. The Third Circuit held today that this FRSA filing deadline is a claim-processing rule, not jurisdictional. The Court nevertheless affirmed dismissal of the complaint on timeliness grounds, rejecting the employee’s mailbox-rule argument on the facts. Judge Porter’s opinion was well-crafted, a model of clear and readable judicial writing.

Joining Porter were Hardiman and Cowen. Arguing counsel were Lawrence Katz of Coffey Kaye for the employee and Joseph Sirbak, II of Cozen O’Connor for the railroad.



Three new opinions, zero affirmances

Stone v. Troy Construction—civil—reversal—Jordan

Under the Fair Labor Standards Act, the statute of limitations to bring suit is a year longer if the FLSA violation was willful. Today, the Third Circuit reversed a district court’s ruling that employees’ claims were barred by the shorter deadline for non-willful violations, holding that the district court applied an overly burdensome standard for assessing wilfulness when it effectively required employer conduct worse than recklessness.

Joining Jordan were Krause and Roth. Arguing counsel were Matthew Miller of Swartz Swidler for the employees and James Boudreau of Greenberg Traurig for the employer.


Secretary US Dept. of Labor v. Bristol Excavating—civil—reversal in part—Jordan

In the second of today’s Jordan-authored FSLA reversals, the Third Circuit held that bonuses paid by third parties to employees do not automatically count as “remuneration” that employers must include when calculating the employees’ over time rate. Instead, whether bonuses paid by third parties must be included in the overtime-pay calculation depends on the understanding of the employer and the employees, to be determined case-by-case.

Joining Jordan were Smith and Rendell. (Smith replaced Vanaskie on the panel after the latter’s retirement.) Arguing counsel were Casandra Blaney of Brann Williams for the employer and Rachel Goldberg for the labor department.


Wolfington v. Reconstructive Orthopaedic Assocs.—civil—partial reversal—Fuentes

A surgery patient alleged that his medical provider violated the Truth in Lending Act by failing to make certain disclosures about installment payment of his deductible. The Third Circuit affirmed the district court’s dismissal of the claim on the ground that TILA’s disclosure requirement did not apply to the oral agreement here. But the Third Circuit vacated the district court’s sua sponte imposition of Rule 11 sanctions, holding that substantive grounds for the sanctions were mistaken and that sua sponte awards of attorneys’ fees under Rule 11 are not allowed.

Joining Fuentes were Krause and Cowen. Arguing counsel were Peter LeVan Jr. of the LeVan Law Group for the appellant and Laura Ruccolo of Capehart Scatchard for the medical provider.

New opinion: Third Circuit revives abortion-clinic buffer zone

Turco v. City of Englewood—civil—reversal—McKee

In response to ongoing incidents outside a local health clinic that provided women’s health services including abortion—members of an antiabortion group were gathering outside the clinic and engaging in “extremely aggressive, loud, intimidating, and harassing behavior” towards patients and others—the city of Englewood, New Jersey enacted a buffer-zone ordinance. The ordinance had the effect of requiring the aggressive protesters as well as others to keep a set distance from the clinic. The ordinance was challenged in federal court by a sidewalk counselor who alleged that the buffer-zone ordinance violated her First Amendment speech and free-association rights, and the district court granted summary judgment in her favor.

Today, the Third Circuit reversed, holding that genuine factual issues precluded summary judgment and that the Supreme Court’s 2014 McCullen decision was distinguishable because it involved a substantially larger buffer distance (35 feet versus 8 feet).

Joining McKee was Siler CA6 by designation; Vanaskie had been the third panel member before he retired. Arguing counsel were Donald Klein of the Weiner Law Group for the city and Francis Manion of the American Center for Law and Justice for the plaintiff.

Blog housekeeping

I’m back from my two-week vacation in Namibia. Dear reader, if you want to see mind-blowing golden dunes, get close-up with dazzling African wildlife, and meet amazingly welcoming English-speaking people—and you don’t mind bumping along a lot of dusty gravel roads—Namibia is hard to beat. It was a once-in-lifetime adventure, but now I’m glad to back to CA3-land.

I’m truly grateful to David Goodwin, who graciously agreed to take over here at CA3blog while I was gone. I hope you’ve enjoyed his posts as much as I have, and I hope I can coax him into continuing to share his incisive and witty analysis here in the future. I’ve gone back and updated David’s posts to make clearer who deserves the credit.

New Opinion: University of Immigration Honeypot [guest post]

This is a guest post by David Goodwin.

Fang v. USCIS—immigration—vacating—McKee

Much as there is no North Orange, there is also no University of Northern New Jersey. Apparently, DHS created a fake university in order to catch brokers of fraudulent F1 student visas, but managed to ensnare plenty of actual students as well. The plaintiff students were informed by DHS, by letter, that their valid F-1 status had been terminated due to their “fraudulent enrollment” in the fake school. They sued, but the District Court dismissed under 12(b)(1), determining that there had been no final agency action and also that the case was not ripe.

Writing for the Court, and expressing a great deal of displeasure with what appears to have been the government’s shifting position on the students’ culpability, Judge McKee disagrees. Under the APA, the order terminating the visas was final, and thus subject to federal court challenge, because 1) “there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated” (or even a clear way to do so), and 2) removal proceedings at which the plaintiffs could challenge the visa revocation might not ever happen, and the plaintiffs could not actually raise such a challenge in removal proceedings. Judge McKee elevates the second part of this discussion to an independent holding: “We therefore hold that removal proceedings cannot serve as an opportunity to review the USCIS’s denial of reinstatement because neither immigration judges nor the BIA have jurisdiction to review those decisions.” With regard to ripeness, Judge McKee applies the Circuit’s ripeness test and concludes that all factors are satisfied.

(Judge McKee observes, in footnote 100, that the agency might not have had statutory authority to cancel the visas in the first place.)

Joining Judge McKee were Judge Restrepo and Judge Fuentes. The original District Judge was Judge Linares, who has since retired; I’m curious to see who picks this up on remand.

Ira Kurzban of Kurzban, Kurzban, Tetzeli and Pratt argued for the students. Joshua Press argued for the government.

Three of a Perfect Pair [guest post]

This is a guest post by David Goodwin.

In re. Various and Sundry § 2244(b) Applications—§924(c)(3) residual clause—granting—Greenaway

In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that 18 U.S.C. §924(c)(3)(B) is unconstitutionally vague, the latest in a line of decisions invalidating “crime of violence” residual clauses. Decided while these applications to file second or successive § 2255 motions were pending,  Davis essentially answered the question posed by each; while the government continued to oppose aspects of some individual applications, Judge Greenaway’s short opinion for the court observes that they all involve merits inquiries and can be addressed by the relevant District Courts.

(I know of at least one person whose head will explode at the references to § 2255 motions as habeas petitions…)

Joining Judge Greenaway were Judge Ambro and Judge Chagares. Arguing were Arianna Freeman for the applicants and former Cowen clerk Steve Sanders (back in the appeals division!) for the government.

Mammana v. BOP—prison conditions/8th amendment—vacating—Fuentes

Former federal prisoner Anthony Mammana alleged that, while in disciplinary segregation, he was placed for four days in the ominously named “Yellow Room”: a chilled room with constant lighting, no toilet paper, no bedding and an extremely thin mattress, and only paper-like clothing. He claimed that these conditions of confinement violated the Eighth Amendment. The District Court dismissed, deeming these conditions “uncomfortable,” but not unconstitutional.

Writing for the Court, Judge Fuentes vacates and remands under the standard of Farmer v. Brennan, 511 U.S. 825 (1994); although since Mammana had pleaded that the defendants were aware of what was happening, the “sole issue” on appeal was whether the deprivation was sufficiently serious. Although individual conditions may not themselves amount to a deprivation, “mutually enforcing” conditions can add up to a deprivation. Here, Mammana had adequately alleged individual deficiencies that added up to a plausible deprivation of “the minimal civilized measure of life’s necessities,” such as warmth and sufficient sleep. His Eighth Amendment claim should have been allowed to proceed.

A curiosity: according to the opinion, the Magistrate Judge recommended that this part of Mammana’s complaint (I think?) be allowed to go forward. While Mammana lodged objections, the government did not. Nevertheless, the District Court appears to have reviewed the Report and Recommendation de novo anyway, knocking out the “only claim currently surviving.” (In the Third Circuit, the District Court’s decision to review de novo despite a failure to object can set up a blank slate for appeal, which appears to have happened here.)

Joining Judge Fuentes were Judge Shwartz and Judge Krause. The case was decided without oral argument. Matthew B. Weisberg of Weisberg Law and Gary Schafkopf of Schafkopf & Burgess are listed as Mammana’s counsel. AUSA D. Brian Simpson represented the government defendants.

Golden v. NJIT—attorney fees—reversing—C.J. Smith

The plaintiffs in this case submitted records requests to the New Jersey Institute of Technology (“NJIT”) under a state law authorizing them to do so. (The law in question gets abbreviated as “OPRA,” which I will not use because it conjures the fanciful mental image of Ms. Winfrey personally ordering the disclosure of public records and having opinions about fees.) Some of the requests implicated documents originating with the FBI, which refused to allow their disclosure. But once litigation began, however, the FBI and NJIT reversed course and produced many additional records. “A-ha!” crowed the plaintiffs. “This New Jersey state law is a fee-shifting statute, and so we can now go after you for attorney’s fees, you fools!” But the District Court shook its head. “Not so fast, you Pulitzer-winning putzes. The defendants acted reasonably and no nexus existed between your lawsuit and the disclosure. No fees!”

Writing for the Court, Chief Judge Smith frowns upon this conclusion. Under the “catalyst” theory, which the NJ Supreme Court follows, plaintiffs can recover if there’s a “factual causal nexus” between the litigation and the relief ultimately received (even if not actually ordered by the court) if the relief had a “basis in law.” Here, there was a causal nexus, and NJIT’s reliance on the FBI’s directives does not change its status as the relevant custodian. With regard to reasonableness, Judge Smith does not think the relied-upon NJ Supreme Court decision supports NJIT’s position; “the ‘reasonableness’ language in [the decision] refers to the reasonableness of an agency’s efforts to comply with a document request before a lawsuit is filed—not whether the proffered basis for denying access is reasonable.” Thus, the plaintiffs were entitled to fees, and the Circuit remands back to the District Court to decide dollars and cents.

There’s a bunch of fascinating stuff going on here, including a threshold jurisdictional holding about federal officer removal under 28 U.S.C. §1442(a)(1), which comes up far less often than you’d expect. The FBI removed the case to federal court as a third party, but did so in a “facially inadequate” notice that failed to enumerate the required conditions for removal. Chief Judge Smith concludes that all four are, in fact, satisfied; the most interesting factor, in my view, is a proposed federal defense that the relevant records were not subject to the state law of disclosure (rathe than, say, FOIA). Also, in footnote 13, the Court appears to join the Fifth and Eighth Circuits (among others, possibly; it’s a see, e.g. cite) to hold that third-party defendants can remove under the federal officer statute.

Joining the Chief were Judge Chagares and Judge Greenaway.

Katie Townsend of the Reporters Committee for Freedom of the Press argued for the appellants, and Gary Potters of Potters & Della Pietra is listed as counsel for the appellees; I guess the FBI wasn’t actually participating despite appearing on the caption (it didn’t have to pay).


A new opinion on the Dormant Commerce Clause and right to interstate travel [guess post]

This is a guest post by David Goodwin.

Owner Operator Independent Drivers Association v. Pennsylvania Turnpike Commission—Dormant Commerce Clause (!)/right to travel (!!)—affirming—Shwartz 

The Pennsylvania Turnpike is, apparently, really expensive—Verrazzano Bridge levels of expensiveand has gotten more so in recent years. No less an authority than Pennsylvania’s Auditor General has sounded the alarm. Intriguingly, the revenue actually collected exceeds what is needed to run the Turnpike, and is distributed to four different state programs—projects that, as will become important momentarily, are authorized by the federal Intermodal Surface Transportation Efficiency Act of 1991 (we’ll call this “the Act”).

The plaintiffs sued, alleging violations of the Dormant Commerce Clause and the constitutional right to interstate travel. The District Court dismissed, and the Third Circuit affirms.

Under the Dormant Commerce Clause, states may not discriminate against or unduly burden interstate commerce. Writing for the Court, Judge Shwartz observes that Congress may authorize states to take actions that burden interstate commerce, at which point the Dormant Commerce Clause doesn’t apply at all. Here, the Act, which is excerpted at length, is an expression of Congress’s “unmistakably clear” intent to allow for the use of toll revenues for non-toll projects, which in turn must contemplate that toll revenues can exceed the operating costs of the toll road. A failure to comply with annual certification requirements of the Act did not bring the defendants’ actions outside of the authorization or within the scope of a Dormant Commerce Clause challenge.

With regard to the right to interstate travel, Judge Shwartz holds that simply making one mode of travel less attractive or more burdensome does not implicate the right. That some may switch from toll roads to non-toll roads, in other words, does not rise to the level of impermissible deterrence.

(Because I am compelled to do so, I note that the font size changes suddenly for a single paragraph at the bottom of page 19, before popping back up to regular size at the end of the affected paragraph. A contribution from another panelist, perhaps?)

Joining Judge Shwartz were Judge Krause and Judge Fuentes. Paul D. Cullen, Sr.  of The Cullen Law Firm argued for the appellants (Junior was also on the brief). Duane Morris’s Robert L. Byer, a former Pennsylvania judge and founding member of the Third Circuit Bar Association, and Schnader’s Bruce P. Merenstein, a former Becker clerk, argued for the appeellees.  The Miguel Estrada filed one of the amicus briefs.


Five (!) new opinions, plus some housekeeping [guest post]

This is a guest post by David Goodwin.

Due to a briefing deadline, today’s summaries will be mercifully short. [ETA: In retrospect, this effort failed.]

First, though, some quick housekeeping: on Friday, the Court issued its formal remand in Knick v. Township of Scott, which the Supreme Court reversed in a 5-4 decision back in January. At issue was whether a Takings Claim can only be brought after a plaintiff has sought compensation under state law in state court. In his opinion, Chief Justice Roberts answered “no,” overruling the case the Third Circuit had relied on to the contrary. However, as Chief Judge Smith observes in his judgment order, the Court’s opinion “stands with respect to the Fourth Amendment claim.”

Without further ado, we address the fast five. Apologies for any typos.

Bastardo-Vale v. Att’y Gen.—immigration (particularly serious crimes)—denying petition—Shwartz (en banc)

An alien convicted of a “particularly serious crime” cannot obtain asylum or withholding of removal. In Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), the Circuit (Judge Ambro writing, with Judge Becker and a district judge joining) held that particularly serious crimes were limited to aggravated felonies. Today, the en banc Court overrules Alaka to hold that “particularly serious crime” means the same thing with regard to both asylum and withholding of removal and is not limited to just aggravated felonies. Rather, the Attorney General has the authority to designate certain offenses as per se serious and can also adjudicate crimes as serious on a case-by-case basis.

I imagine Stephen Miller will get right on declaring all crimes to be “particularly serious.”

Judge Shwartz’s opinion for the Court, apparently joined by everyone save Judges McKee and Ambro, engages in a lengthy statutory analysis, and includes a 3-page-long footnote responding to an argument raised in Judge McKee’s dissent. Intriguingly, Judge Shwartz also castigates the Board of Immigration Appeals, which elected to ignore Alaka entirely in favor of the Board’s own precedent, an act Judge Shwartz characterizes as a “blatant disregard of” binding precedent.

Judge McKee and Judge Ambro (the Alaka author) both dissent, writing separately but substantially joining each other’s opinions. In a classic demonstration of the Third Circuit’s emphasis on collegiality, both dissenting Judges praise Judge Shwartz’s opinion for the Court.

Cherylle Corpuz argued for petitioner Bastardo-Vale, Benjamin Moss argued for the government, and Joseph C. Hohenstein of Landau, Hess, Simon & Choi argued for amicus American Immigration Lawyers Association.

Paul Shifflett v. Korszniak—Prison Litigation Reform Act exhaustion—vacating and remanding—Ambro

Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust administrative remedies before filing a conditions-of-confinement lawsuit. In his opinion for the Court, Judge Ambro makes official what a prior opinion, Robinson v. Superintendent Rockview SCI, 831 F.3d 148 (3d Cir. 2016) (Hardiman, J.) “strongly implied”: a prisoner’s remedies are exhausted (or, more precisely, the administrative process becomes “unavailable”) as soon as the prison fails to respond to a properly submitted grievance in a timely fashion, because the PLRA requires “strict compliance” by prisoners and prisons alike. Thus, the plaintiff’s remedies were exhausted as soon as the prison missed the grievance-policy response deadlines, and so the District Court erred in dismissing his complaint for nonexhaustion. Judge Ambro also directs the District Court, on remand, to appoint counsel for Shifflett.

Joining Judge Ambro were Judges Greenaway and Scirica. The Yale Law School Appellate Litigation Project represented Shifflett on appeal, with Elise Wander arguing three days after commencement. Chase Defelice argued for the Department of Corrections. Argued for individual appellees were Emily B. Ryan-Fiore of Weber Gallagher Simpson Stapleton First & Newby, Carol A. VanderWoude of Marshall Dennehey Warner Coleman & Goggin, and Ava M. Plakins of Bonner Kiernan Trebach & Crociata.

Donna Dinaples v. MRS BPO—Fair Debt Collection Practices Act—affirming—Chagares

The Third Circuit had previously held in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014) (Scirica, J.), that a debt collector violates the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692f(8), by sending a collection letter displaying the debtor’s internal account number on the envelope. Does the same rule apply when the envelope doesn’t show the account number itself, but instead contains an unencrypted QR code that can be scanned to reveal the number? The District Court said yes, and Judge Chagares’s opinion for the Court agrees, applying the reasoning of Douglass and giving the FDCPA the requisite broad construction.

As a threshold issue, the Court also holds that the plaintiff had standing under Spokeo and its Circuit progeny, because the implication of “core privacy concerns” is enough to show a concrete injury. The Court also holds that the collector cannot claim a “bona fide error” defense, which does not apply to mistakes of law, but rather to clerical or other errors.

(If you, like me, were momentarily confused by the appellee: MRS BPO is a debt collection company, and not a person named Mrs. Bpo.)

Joining Judge Chagares were Chief Judge Smith and Judge Greenaway. Michael D. Alltmont of Sessions Fishman Nathan & Israel argued for MRS BPO and Yitzchak Zelman of Marcus and Zelman argued for the prevailing appellee.

Dexter Hillocks v. Att’y Gen.—Immigration (categorical approach)—granting petition and remanding—Fuentes

In determining whether convictions fall into categories that bar certain immigration relief (or lead, for that matter, to enhanced sentences under the Armed Career Criminal Act), courts are supposed to use the “categorical approach,” which looks to the essential elements of the conviction and disregards the actual facts of the conviction. For divisible statutes having multiple elemental paths, however, courts can use the “modified categorical approach,” peeking at the facts of the conviction to decide which path was taken.

The whole area is . . . somewhat complicated, and this case amply demonstrates why. The petitioner, Dexter Hillocks, had been convicted of using a communication facility (a phone) to facilitate a felony. The statute says:

A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under [35 P.S. § 780-101 et seq.], known as The Controlled Substance, Drug, Device and Cosmetic Act. 

Is this Pennsylvania offense an “aggravated felony” or “conviction relating to a controlled substance?” The agency, employing the modified categorical approach, looked at the plea colloquy, determined that Hillocks used the phone to facilitate the sale of heroin, and said “yep!”

Judge Fuentes agrees that the categorical approach, and not the modified categorical approach, was warranted here. Both possible paths to conviction, through the Pennsylvania Criminal Code and the Controlled Substance Act, did not amount to a categorical match to a federal felony that would fall under either definition, in part because an offender could “facilitate” basically anything, including any non-aggravated felony. Thus, “[b]ecause the Government ha[d] not identified divisible categories, at least one of which would match a generic federal aggravated felony,” the modified categorical approach was not appropriate.

With regard to whether this was a “conviction relating to a controlled substance,” Judge Fuentes observed that his prior en banc opinion in Rojas v. Att’y Gen, 728 F.3d 203 (3d Cir. 2013), had established that the categorical approach did not apply in “related to” controlled substance analysis for state convictions. But in an intervening case, Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the Supreme Court had used the categorical approach in these circumstances. Judge Fuentes holds that Mellouli partially abrogated Rojas, that the categorical approach should be used, and that, for substantially the same reasons the conviction was not an aggravated felony, the conviction also did not “relate to” a controlled substance.

Joining Judge Fuentes were Judge Ambro and Judge Bibas. Former Fisher clerk M. Patrick Yingling of Reed Smith argued for Hillocks and Gregory Pennington argued for the government.

United States ex rel. Charte v. American Tutor—False Claims Act/Entire Controversy Doctrine—vacating and remanding—Fuentes

Jean Charte sued her former employers twice, first in New Jersey state court and second as a relator under the federal False Claims Act (“FCA”). While the FCA was under seal pending the government’s decision to intervene, the state-court action was settled. The question: does New Jersey’s “entire controversy doctrine,” a res-judicata-on-steroids requirement that all claims relating to an underlying controversy be resolved in a single proceeding, require the dismissal of the FCA action given the settlement of the state-court action?

In his opinion for the Court, Judge Fuentes says it does not. First, FCA qui tam claims belong to the government, not the individual relator, so it would be unfair to give Charte the ability to essentially settle out the government’s claims during the pendency of the FCA proceeding. Second, that FCA actions are filed under seal meant that Charte couldn’t inform the defendant of the under-seal portion of the controversy (Judge Fuentes observes that Charte nevertheless tried to “litigate this case out in the open”). Third, as a matter of fairness, a contrary holding would allow potential FCA defendants to “smoke out” relators by suing them and settling with them, thereby barring qui tam suits, an outcome equity could not abide. Finally, while Charte could have brought the FCA claim as a state-court counterclaim, she did not have to do so, and it would have been filed under seal anyway.

(Based on the citations, that federal FCA claims can be brought in state court appears to be a partly novel holding, although the Second Circuit has also held that 3732(a) is nonjurisdictional in United States ex rel. Thistlewaite v. Dowty Woodville Polymer Ltd., 110 F.3d 861 (2d Cir. 1997)).

Judge Ambro joined Judge Fuentes’s opinion. Judge Hardiman dissented on the basis that fairness cut against Charte, as the District Court had found that Charte engaged in gamesmanship, and had never alerted the state court about the qui tam proceeding.

Sean F. Byrnes of Byrnes O’Hern & Heugle argued for Charte, while Michael F. Bevacqua, Jr. of Mandelbaum Salsburg argued for American Tutor.


Three new opinions: disability rights in prison, establishment clause echoes, and habeas [guest post]

This is a guest post by David Goodwin.

Robert Furgess v. Pennsylvania DOC—ADA/§ 504—vacating—Roth

Robert Furgess, a Pennsylvania prisoner, suffers from a serious neuromuscular disorder. When he was transferred to the prison’s Restrictive Housing Unit, he was no longer provided with accessible showers, and was not able to shower for months. When the prison finally cobbled together a makeshift replacement, Furgess injured himself and has since been confined to a wheelchair.

Under the ADA and § 504 of the Rehabilitation Act, a person may not be prevented from participating in a program, service, or activity, or otherwise be subject to discrimination, by reason of his disability. So is a prison shower a program, service, or activity? And even if it was, did the prison deprive Furgess of access to it “by reason of” his disability?

Writing for the Court, Judge Roth answers both of these questions in the affirmative.

First, case law and administrative guidance make plain that the “program, service, or activity” label is to be construed broadly, and Judge Roth distinguishes a relied-on Seventh Case that could be read to narrow the scope of the statute. Requests for accessible showers, Judge Roth concludes, “are requests for reasonable accommodations so that inmates with disabilities can take a shower—just like able-bodied inmates.”

Second, although the prison argued that Furgess lost access to the shower because of his transfer to the RHU, Judge Roth reads his complaint as alleging that the actual causal factor was his disability itself, not the transfer. Besides, “a prisoner’s misconduct does not strip him of his right to reasonable accommodations.” And Furgess had otherwise adequately alleged deliberate indifference, as his complaint recited the myriad occasions where Corrections officials had been alerted to, yet failed to address, his request for an accessible shower.

(A small point of curiosity: the opinion recites a short pre-Twombly version of the 12(b)(6) boilerplate, although the Court has held that this particular formulation survived Twombly/Iqbal.)

Joining Judge Roth were Judges Jordan and Krause. John F. Mizner of the Mizner Law Firm argued for Furgess, and Kemal Mericli in the AG’s office argued for the Commonwealth.

Freedom from Religion Foundation v. Lehigh County—Establishment Clause—affirming—Hardiman

For almost 75 years, the official seal of Lehigh County, Pennsylvania has included a Latin cross surrounded by nearly a dozen secular symbols of historical, patriotic, cultural, and economic significance to the community.” This is an Establishment Clause challenge, and those particular facts should sound more than a little like the facts from American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019). As that challenge failed, it should not surprise that this one does, too.

As Judge Hardiman explains, American Legion clarified that the much-unloved three-prong Lemon test does not apply to certain longstanding symbols, which instead enjoy a presumption of constitutionality. Freedom from Religion had not adequately shown that the presumption of constitutionality did not apply, and then failed to rebut the presumption. While the Court does not dismiss on standing grounds, Judge Hardiman’s opinion appears to invite an en banc (or Supreme Court) challenge to Establishment Clause “offended bystander” standing.

Joining Judge Hardiman are Judges Krause and Bibas. Marcus B. Schneider of Steele Schneider argued for the appellants; I checked, and Pierce Brosnan has never played a character named Steele Schneider, although there’s still time. Eric Baxter of the Becket Fund argued for Lehigh County. There were many amicus briefs filed.

Steven Romansky v. Superintendent Greene SCI—state habeas—affirming—Ambro

This case, described as a “procedural quagmire,” encompasses trials, retrials, and various applications for state collateral relief, all culminating in a federal habeas petition. What follows is a gross oversimplification.

The main claim before the Court is that, during his 1987 trial, Romansky was tried for a crime different from the one actually charged. But Romansky did not file his federal habeas petition until 11 years after the time to do so apparently expired, and so his claim would appear to be time-barred. Romansky argued that a 2000 retrial “reset” the habeas timeline under Magwood v. Patterson, 561 U.S. 320 (2010), which held that a resentencing results in a new judgment and, thus, that a subsequent habeas petition cannot be “second or successive” for at least certain challenges to that new judgment.

Complicating Romansky’s Magwood argument, however, is the fact that the challenge he now raises derives from his 1987 trial, not the retrial on other counts that had been vacated. And on these facts, Judge Ambro concludes, the habeas timeline was not restarted by the revised partial judgment entered in connection with the retrial. Judge Ambro acknowledges that the outcome might be different in jurisdictions following a “sentencing package” doctrine, where even a partial vacatur results in an entirely new sentence on everything, but “the Pennsylvania counts [sic? I think this should be “courts”] imposed separate sentences for each count and conducted only a ‘limited’ resentencing after the retrial.” As a result, Romansky’s main claim is time-barred.

Romansky also argued that his 2000 retrial counsel was ineffective for failing to raise a certain defect (apparently conceded by the Commonwealth to be an actual defect, on which he never received relief) with his 1987 trial despite repeated requests. This claim, while timely, fails on the merits; Judge Ambro holds that 2000 counsel had no obligation to raise claims affecting counts not before the court in the 2000 retrial, and that Romansky could not bring an federal constitutional ineffectiveness claim based on 2000 counsel’s failure to file a PCRA petition or other collateral attack. Whew.

Judge Ambro declines to expand the certificate of appealability to reach additional claims. Of note, one of them alleged that Pennsylvania, in deciding to adopt a grand jury system, was essentially bound by Supreme Court precedent on federal grand juries, even though the constitutional grand-jury requirement has not been incorporated to the states. The Court rejects this “creative” argument.

Joining Judge Ambro were Chief Judge Smith and Judge Restrepo. Ronnie J. Fischer of Bugaj Fischer argued for Romansky, and James P. Baker of the A.G.’s office argued for the Commonwealth.

Four new opinions, including a debut [guest post]

This is a guest post by David Goodwin.

It’s a veritable law of nature, as regular and predictable as the sun rising each day. You’re at a cocktail party, chatting away, and you mention the name “Judge Anthony Scirica.” Always the same response: “Oh!  General Electric Credit Corporation v. Nardulli & Sons!” Or maybe, during your weekly North Bowl league, someone spies retired Judge Timothy Lewis a few lanes down, leans over, and whispers, “Look over there! Mr.  Geisinger Health Plan v. Commissioner himself . . .  whoah, 215?” And who can forget learning in law school about “the legendary Learned Hand, author of  Metropolitan Trust Co. v. McKinnon?”*

Among today’s opinions is a similar debut. Without further ado . . .

United States v. Ronald Damon—Criminal Law (scope of appeal waivers)—affirming—Matey

When Ronald Damon pleaded guilty, he signed a waiver of his rights to file any appeal, collateral attack, writ, or motion challenging” a within- or below-Guidelines “sentence imposed by” the court. The issue: in this context, does a request for early termination of a period of supervised release, brought under 18 U.S.C. 3583(e)(1),  fall within the scope of the waiver? The District Court thought the answer was “yes,” and enforced the waiver to bar Damon’s challenge.

Writing for the Court, Judge Matey agrees. “Sentence,” Judge Matey holds, refers to “all penalties” imposed on Damon, and therefore must extend to his term of supervised release. And while Damon had argued that he was not challenging his sentence in the manner contemplated by the plea agreement, Judge Matey sees this as a distinction without a difference: a request for a modification seeks also to challenge the underlying sentence. Both parts of the analysis, I note, rely heavily on dictionary definitions.

While this decision arrives in the context of supervised release, it may plausibly extend to the more-common 3582(c)(2) discretionary sentencing challenges, too. Whether 3582(c)(2) motions fall under the ambit of broad appeal waivers is, I think, still an open question in the Circuit;  Damon may shut that door.

Joining Judge Matey were Judges Jordan and Bibas. Federal Defender Julie McGrain argued for Damon and AUSA John Romano argued for the government.

Nicholas Bergamatto v. Board of Trustees of the NYSA-ILA Pension Fund—ERISA—affirming—Jordan

This complex ERISA appeal has, as its core, two main issues: 1) was the plaintiff entitled to more benefits from his plan than he received, and 2) does the Third Circuit recognize a “de facto administrator” theory, where a plan participant sues not the plan’s actual administrator, but an entity that is alleged to function as the administrator, under a statute penalizing the late provision of plan information?

On the first point, Judge Jordan rules that the deferential standard applicable to ERISA review—”arbitrary and capricious/abuse of discretion” when, as here, the plan administrator exercises discretionary authority—dooms the plaintiff’s claims. The plan language was not ambiguous, and the administrator’s decision aligned with that language.

On the second point, Judge Jordan’s opinion for the Court makes plain that the Circuit does not recognize a de-facto plan administrator theory. The plaintiff sued the Executive Director of the plan, arguing he was a “de facto” administrator and thus subject to suit under 29 U.S.C. § 1132(a)(1)(A), which is explicitly limited by § 1132(c)(1) to “administrators” who fail to comply with requests for information. As Judge Jordan notes, most other Courts of Appeals, save the 11th and 1st Circuits, have rejected the idea that someone can be liable to suit as an administrator despite not being an administrator under ERISA, and both the plain language of the statute and relevant Third Circuit precedent cut against the de facto administrator theory. “In short,” Judge Jordan writes, “we must restrict application of the title ‘administrator’ to those who fit the statutory definition and not stretch the term to authorize penalties against others whom a disappointed plan participant might like to reach.”

Joining Judge Jordan were Chief Judge Smith and Judge Matey. The case was submitted without oral argument.

Abdul Jaludi v. Citigroup—arbitration/Sarbanes-Oxley/contracts—partial reversal—C.J. Smith

Jaludi, a former Citigroup worker, allegedly blew the whistle and was laid off for his troubles. He sued under RICO (apologies to Ken White) and Sarbanes-Oxley. Citigroup moved to compel arbitration, relying on a 2009 employee Handbook with expansive arbitration clauses that explicitly encompassed Sarbanes-Oxley claims, even though Dodd-Frank amended Sarbanes-Oxley to prohbit pre-dispute agreements to arbitrate whisleblower claims (and which, in turn, led the 2011 Handbook to delete Sarbanes-Oxley from the list of arbitrable claims). The District Court held that arbitration was nevertheless required.

Chief Judge Smith’s opinion for the Court reverses in part. The “in part” here is due to the presence of the RICO claim, which did fall within both Handbooks’ arbitration provisions. Judge Smith otherwise holds that the 2011 Handbook, which eliminated Sarbanes-Oxley from the list of arbitrable claims, superseded the 2009 Handbook. Taking an opportunity to clarify the state of Circuit law on whether there is an agreement to arbitrate, Judge Smith emphasizes: “we make clear today that the question of whether a later agreement supersedes a prior arbitration agreement is tantamount to whether there is an agreement to arbitrate. It is therefore a question to which state law, not federal law, applies.” And, under Pennsylvania law, “the later of two agreements between the same parties as to the same subject matter generally supersedes the prior agreement.”

This is the same panel as the case above, so joining Chief Judge Smith are Judges Jordan and Matey.

Jaludi originally proceeded pro se. Drexel’s Federal Litigation and Appeals Clinic was appointed as pro bono counsel, with recent graduate Sydney Melillo arguing for Jaludi mere days after graduating (and, hopefully, before bar prep got too out of hand). Thomas Linthorst of Morgan Lewis argued for Citigroup.

In re: Google Inc. Cookie Placement Consumer Privacy Litigation—class actions/cy pres awards—vacating—Ambro

This is a sequel to a 2015 decision about Google’s successful manipulation of browser cookie-blocking features—”don’t be evil” indeed. On remand, the parties agreed to a settlement and moved to certify a Fed. R. Civ. P. 23(b)(2) class. The  cy pres settlement, though, didn’t benefit any of the class members, and instead directed Google to cover class counsel’s fees and donate money to data privacy organizations, in exchange for which Google would obtain class-wide release.

The Ted Frank objected to the settlement, arguing that the cy pres money properly belongs to the class as compensation.

Judge Ambro’s opinion for the Court strikes a middle ground: while cy pres settlements may be appropriate for some 23(b)(2) classes, the District Court’s fairness analysis here was not sufficient. As a threshold issue, Judge Ambro concludes that the plaintiffs have standing under In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262, 273–74 (3d Cir. 2016). On the merits, the Court “see[s] no reason why a cy pres-only (b)(2) settlement that satisfies Rule 23’s certification and fairness requirements could not ‘belong’ to the class as a whole, and not to individual class members as monetary compensation.” But although the District Court here ran through the appropriate factors, Judge Ambro was “not persuaded the Court sufficiently assessed the fairness, reasonableness, and adequacy of the settlement,” and particularly the broad class-wide release of money-damages claims and the selection of specific cy pres recipients. The Court remands, warning:

The vista view of this case is not pretty. According to the complaint, an internet behemoth with unprecedented tools for monitoring private conduct told millions of Americans it would not track their personal browser history, and then it did so anyway to profit from the data. Through the proposed class-action settlement, the purported wrongdoer promises to pay a couple million dollars to class counsel and make a cy pres contribution to organizations it was already donating to otherwise (at least one of which has an affiliation with class counsel). By seeking certification under Rule 23(b)(2), the defendant and class counsel avoid the additional safeguards that apply to Rule 23(b)(3) actions. One might think this would leave room for class members to pursue damages individually; yet that relief is foreclosed as well, as the settlement contains a nationwide release of claims for money damages that arose or could arise were there unauthorized snooping, presumably covering tens if not hundreds of millions of Americans. In this context, we believe the District Court’s factfinding and legal analysis were insufficient for us to review its order certifying the class and approving the fairness, reasonableness, and adequacy of the settlement.

Joining Judge Ambro were Judge Krause and Judge Rendell. Enthusiasts of PDF-creation intrigue—I mean,  who isn’t these days?—will note that this opinion, alone of the 4, does not hyperlink footnote calls to the actual corresponding footnotes.

The Ted Frank of the Competitive Enterprise Institute argued for the appellants. Brian R. Strange of Strange & Butler and Anthony Weibell of Wilson Sonsini argued for the appellees. Oramel Skinner of the Arizona AG’s office argued on behalf of a grab-bag of amicus appellant states.

*: Yes, yes, I know, this is an opinion he issued as a District Judge sitting by designation. It was legitimately hard to tell which opinion was his first for the Second Circuit proper, as Court did not distinguish between its two Hands for quite some time.



New Decision: Applying McDonnell on 2241 Review [guest post]

This is a guest post by David Goodwin.

Robert Cordaro v. United States—Criminal Law (corruption/habeas)—affirming—Chagares

Robert Cordaro, a former Lackawanna County commissioner, allegedly wasted no time using his office for private financial gain, chiefly by influencing the awarding of contracts. Classic! He was convicted of bribery, Hobbs Act extortion, and racketeering. After the Third Circuit affirmed his conviction, Cordaro unsuccessfully challenged it via 28 U.S.C. § 2255.

But then the Supreme Court decided McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of “official act”—a development, Cordaro claimed, that rendered his conduct non-criminal. He initially tried to file a second 2255 motion, but his application was denied. So instead, Cordaro filed an actual federal  habeas corpus petition under 28 U.S.C. § 2241, which he could do only if 2255 was inadequate or ineffective to test the legality of his detentionthe “Dorsainvil” exception, which applies when subsequent statutory developments have rendered a person’s underlying conduct non-criminal. The District Court agreed with Cordaro that he was entitled to take advantage of the Dorsainvil exception, but denied his petition on the merits, concluding that he had failed to show that no reasonable juror would have convicted him if properly instructed under McDonnell.

The Third Circuit affirms. First, Judge Chagares holds that the Dorsainvil exception was proper here, as a retroactive application of McDonnell could conceivably render Cordaro’s conduct non-criminal (but see more below).

Second, Judge Chagares agrees with the District Court that, even under McDonnell, Cordaro had failed to show his conduct was non-criminal. Cordaro used his influence in the awarding and maintenance of contracts, specifically agreed to act on the contracts in question, and apparently received direct payments from some of the contractors. “Taking this evidence together,” Judge Chagares writes, “would some reasonable juror conclude that Cordaro committed official acts as defined by McDonnell? The answer is yes.” To Cordaro’s point that the various firms contracted with independent agencies, not the county itself, Judge Chagares concludes that the flow of authority makes no difference. “[W]hatever the chain of technical legal authority . . . there is ample evidence that Cordaro agreed to, could, and did influence who kept and lost contracts with county entities.” Judge Chagares likens this aspect of the case to the Court’s recent decision in United States v. Repak, where the appellant had argued, unsuccessfully, that making recommendations about contracts was different than directly acting on them.

At least one aspect of Cordaro’s argument appears to have been affected by the constricted procedural posture: he argued that erroneous jury instructions could have led the jury to convict him for the noncriminal meetings, as opposed to the influencing of contracts. Since this isn’t a direct appeal, but is instead a collateral attack under 2241, the standard is what a properly instructed jury would do under McDonnell, not what the actual jury in the case actually did.

Finally, the Court defers decision on several open questions:

  • Whether 2255(e), the safety valve that allows for the Dorsainvil exception to function, is a jurisdictional restriction that affects whether the District Court can entertain a 2241 petition on the merits from a federal prisoner.
  • Whether McDonnell applies retroactively on collateral review at all (the government conceded that it did, but its concession does not actually govern, and the Court says only that McDonnell “arguably satisfies” the retroactivity test).
  • Whether the “official acts” holding of McDonnell applies to Hobbs Act extortion and racketeering (which neither party questioned) or § 666 bribery (which was contested; the Court assumes it does because the claim fails anyway).

Joining Judge Chagares were Judge Ambro and Judge Greenaway. AUSA Stephen Cerutti argued for the government and Nixon Peabody’s Brian T. Kelly argued for Cordaro.

Presiding judge musing [guest post]

This is a guest post by David Goodwin.

The late Judge Van Antwerpen served on the Third Circuit from 2004 through 2016. He was 62 when elevated, and had been on the Eastern District of Pennsylvania since 1987. Confirmed in May 2004, he took senior status in October 2006, a little under a year and a half later⁠. His was certainly among the shortest active-status tenures on the Third Circuit, and perhaps among the broader Courts of Appeal as a general matter.

Which made me curious about something: had Judge Van Antwerpen ever presided over a panel?

In the Third Circuit (as is the case more generally), when the Chief Judge isn’t present, the presiding judge is the active judge having the most seniority, and there is always at least one active judge per panel (IOP 3.1 & 3.2). During Judge Van Antwerpen’s entire active-status tenure, he was senior to exactly one other judge: Judge Chagares, confirmed April 2006 (Judge Jordan arrived in December 2006, a little too late). April 2006 is cutting it quite close for panel composition, so it would be more likely that Judge Van Antwerpen presided over a panel consisting of himself and two senior judges, or one senior judge and one by-designation judge.

A quick-and-dirty Westlaw search returned 19 opinions where Judge Van Antwerpen was listed first. Except that many of those were either motions panels or pro se merits panels. For instance, he’s first on Eisenstein v. Ebsworth, 148 F. App’x 75 (3d Cir. 2005), with Judge Greenberg and Judge Nygaard, but that panel never actually heard arguments. Ditto with a few non-pro-se cases that were decided on submission (In re Strategic Techs., Inc., 142 F. App’x 562 (3d Cir. 2005)).

My quick search produced only one argued case with Judge Van Antwerpen presiding: United States v. Acorn Tech. Fund, L.P., 429 F.3d 438 (3d Cir. 2005), with Judge Aldisert and Judge Cowen, was argued October 18, 2005. But hey, one is more than none.

So the short answer is: yes, 1.5 years is enough time to end up presiding over an actual, can-hear-oral-argument panel. But just barely.


The Value of Clerking, Part N+1: Learning What Doesn’t Happen [guest post]

This is a guest post by David Goodwin.

Clerkships are a valuable learning experience for new attorneys, and the “why” is often summed up like so: “You get to see how the sausage is made.” That’s absolutely true. Learning how judges make their decisions, or what kind of arguments tend to take wing—these are all helpful skills to have and will stay with you throughout your career.

But also important is learning what doesn’t happen, how courts don’t work, and how judges don’t act. Sausage-making isn’t always The Jungle.

Humans are hard-wired to see patterns, even where none exist. For litigators and parties, this often translates into a need to assign reasons to the litigation process. Why did the judge do X? Why was I asked that question? Or the absolute, undisputed classic: why is everything taking so long? The case—your case, the thing you’ve been laboring over, the star at the center of all constellations—is at the forefront.

Seeking answers is a perfectly normal response. But we also tend to want those answers to have some grounding in substance. The judge asked that question because she was troubled by an issue in the case. The scheduling order was delayed because the panel was divided on whether to grant extra time. My appeal is taking so long to get decided because the issues are deeply complex, or the judges are struggling with the right outcome, or the court is trying to reconcile dangling threads of precedent.

Sometimes these guesses would be correct. Often, though, they are wrong.

One of the valuable lessons instilled through clerkships is that, sometimes, things just happen. Judging is a job. Courts are workplaces like any other. There are thousands of motions and merits decisions flying around. Things take a long time all the time, for no reason at all other than work and triage and (on occasion) someone just absolutely forgetting.

I remember once idly Googling the parties in a case only to find a forum thread dedicated to piecing together the hints and clues on the docket. A judge dropped out between the motions stage and the merits stage; he must have had a conflict! (Actually, you just happened to get a merits panel that included two judges from the motions panel.) These random letters on the word-limit order signal what track the appeal is on! (Actually, those are the case manager’s initials.) The delay between the case being submitted and the decision coming out means something! (It could, but it could also just mean that . . . things are taking a while, or someone’s slow with getting the vote in, or the clerk assigned to the case is also working on a 78-page RMBS opinion and you’re assigned a low priority.)

Realizing that there isn’t always a “substance” reason for the things that courts do is an extremely valuable thing to know. But perhaps even more than the other experiences during a clerkship, it can be a hard thing to retain once you’re back in the real world. The random things that happen begin again to seem significant.

A client asked, a few days ago, why the court was sitting on her appeal.  I had predicted a decision would come out in about 3 to 4 months, but 6 months later and all was crickets and tumbleweeds. She wanted to know: Was it a good sign? A bad sign? We had raised a tricky issue of law at oral argument; maybe we were winning on that point?

I said I didn’t know. It could mean something, but it could also not mean anything. It’s summer. The authoring judge could be on vacation. The clerk assigned to the case could have other work.

I guess we’ll find out when the decision is handed down.

(My suspicion is that the intrigue-to-mundane-reason ratio is a bit higher at the Supreme Court, where each question is thought to be exquisitely targeted and calculated and revealing, and delays through the end of the term often do mean something. But as in most things, the Supreme Court is an outlier, and I wouldn’t be surprised if clerks in that particular marble palace shake their heads at some of the tea-leaf reading that goes on in the media.)

Three new opinions: criminal, copyright, and ERISA [guest post]

This is a guest post by David Goodwin.

It’s August, and to quote Neil Hannon: here comes the flood. Judge Hardiman has all three opinions.

United States v. Porter—Criminal Law (issues abandoned by guilty pleas)—affirming—Hardiman

After the district court denied defendant-appellant Porter’s motion to suppress drugs found in his bag, Porter decided to enter an unconditional plea of guilty. Observing that defense counsel had made noises about wanting to appeal, the district court advised Porter of his appellate rights at sentencing. Porter appealed, and argued that he should be able to attack the district court’s suppression ruling because he had never affirmatively waived his right to do so and because the district court had broadened the scope of appeal rights at sentencing—an apparent attempt to get around the usual rule that suppression rulings cannot be attacked on appeal of unconditional guilty pleas.

In an opinion by Judge Hardiman, the Court disagrees. First, Judge Hardiman performs some doctrinal housekeeping, clarifying that language about how only “jurisdictional” issues survive unconditional pleas is incorrect and the product of label creep; the proper test is whether the issue is “constitutionally relevant” to the conviction. Second, Judge Hardiman observes that there was no “waiver” of appellate rights here (and thus no required intentional relinquishment), but rather something more akin to an automatic forfeiture. Third, the district court’s statements at sentencing did not serve to restore any appellate rights.

Two short comments. First, it is not entirely clear to me whether this decision functionally narrows the scope of claims that survive an unconditional plea or simply preserves the well-established status quo against a novel challenge. Second, I’m surprised that the Court did not resolve the “expanded rights” part of the argument by disentangling the right to appeal from the right to argue certain claims on appeal. But no matter; the Court would have arrived at the same destination.

Joining Judge Hardiman were Judges Cowen and (appropriately) Judge Porter. James Brink argued for the appellant and former Hardiman clerk (and current Pitt adjunct) Ira Karoll argued for the government, in front of his old boss.

Caesars Entertainment Corporation v. International Union of Operating Engineers Local 68 Pension Fund—ERISA/MPPAA—affirming—Hardiman

If you’re anything like me, that caption caused you to recoil, and the subsequent mention of the Multiemployer Pension Plan Amendments Act (MPPAA) to tremble. But 13 pages is a good omen.

This is an appeal by a pension fund from the reversal of an arbitration decision. At issue is a kind of partial pension withdrawal called “bargaining out,” where an employer “permanently ceases to have an obligation to contribute under one or more but fewer than all collective bargaining agreements under which the employer has been obligated to contribute . . . but continues to perform work . . . of the type for which contributions were previously required.” Caesars stopped contributing to an ERISA pension fund at one of its casinos that had closed, but continued doing so for three others. The Fund claimed that Caesars was liable under the “bargaining out” language, and an arbitrator agreed. The district court, however, did not.

Judge Hardiman concludes that the district court got it right. The central issue is whether the statutory language of “work . . . of the type for  which contributions were previously required” includes work of the type for which contributions are still required. He holds that here, “previously” is most properly understood to mean “no longer.”

To get to this point, Judge Hardiman engages in a historical original-public-meaning analysis of the word “previous,” using the “ordinary meaning at the time Congress enacted the relevant provision.” An archaeological dive into genuine historical sources—a dusty copy of Random House, the rare second edition of the Oxford English Dictionary, and the forgotten-to-time Fifth Edition of Black’s Law Dictionary—confirms that the learned congressional scribes used “previous” to mean “occurring before.” And the “largest structured corpus of historical English” backs up that “the word’s most common synonyms in the 1970s–80s were ‘before’ (the synonym used roughly 86% of the time), ‘earlier’ (12%), and ‘formerly’ (1%).” Also, the Pension Benefit Guaranty Corporation had said that “merely ceasing or terminating an operation” shouldn’t trigger withdrawal liability. Against this backdrop, the Fund’s “appeal[s] to purposivism”—an argument that the Court’s holding would defeat the purpose of the statute—are unavailing.

Joining Judge Hardiman were Judge Chagares and sitting-by-designation-MVP Judge Siler. Michael T. Scaraggi of Oransky, Scaraggi & Borg argued for the Fund and James Tysse of Akin Gump argued for Caesars.

Silvertop Associates v. Kangaroo Manufacturing—Copyright—affirming—Hardiman

The Copyright Act does not allow for copyright of certain features of “useful articles.” “But how,” you may ask, “does this apply to the validity of copyright vis-à-vis a full-body banana costume?”

Glad you asked! Rasta Imposta holds a copyright in its full-body banana costume. Appellant Kangaroo Manufacturing makes a full-body banana costume that is very, very similar to Rasta’s (the history of this banana mash is set forth in the opinion). Rasta sued and secured a preliminary injunction. On appeal, Kangaroo argued that Rasta’s copyright was not valid.

Relying on recent Supreme Court precedent, the Court holds that while the banana costume is indeed a “useful article,” its artistic features considered as a whole rendered it capable of independent existence as a copyrighted work. And the fact that a banana design can be “found in nature” did not defeat copyrightability because Rasta’s banana had more than a “minimal level of creativity.” Finally, the copyright doctrines of merger and scenes a faire—essentially, “would allowing copyright here grant a monopoly on banana costumes?”—did not apply because . . . well, there are lots of ways to make banana costumes.

Having tweaked Judge Hardiman’s 1980s originalism analysis in Caesars, I must course-correct by expressing my admiration for how he keeps a straight face in the presence of undeniable whimsy (and a citation to a case actually called Whimsicality, Inc. v. Rubie’s Costume Co.) until the very last moment: Rasta may protect the “veritable fruits of its intellectual labor.” Judge Hardiman, you deserve that one. (Also, there’s a really great Appendix that better show up on the Westlaw copy of the opinion.)

Joining Judge Hardiman were Judge Chagares and E.D. Pa. Judge Goldberg sitting by designation. Alexis Arena of Flaster Greenberg argued for Rasta and David Schrader of Paykin Krieg & Adams argued for Kangaroo.

Midsummer district court confirmations [guest post]

This is a guest post by David Goodwin.

Are those bells I hear? Bells chiming at the top of the Judicial Conference headquarters in Justice City, responding to a signal flare from the Administrative Office Citadel in the Jurisdictagon?

We must have new judges!

Yesterday, the Senate confirmed two new Pennsylvania district judges. One, in E.D. Pa., was originally an Obama nominee: John Milton Younge, who takes Judge McLaughlin’s seat, which opened in 2013. The other, William Stickman IV, was confirmed to W.D. Pa., taking Judge Conti’s seat.

The Judiciary Committee’s nominations page, meanwhile, shows two recent nominees reported out of committee: Stephanie Haines and J. Nicholas Ranjan, both W.D. Pa. They join other pending nominees, including Jennifer Wilson (M.D. Pa. and former Fuentes clerk), awaiting full Senate action. [Correction: Judge Ranjan was confirmed last month.]

While Pennsylvania has seen a few recent confirmations, the same cannot be said for the District of New Jersey, which has six openings dating back to February 2015. As far as I can tell, there are no nominations pending.

(DNJ tragically lost two beloved judges, William Walls and Jerome Simandle, who passed away in July.)

New opinion: The 4th Amendment and Exclusionary Rule in Immigration Proceedings [guest post]

This is a guest post by David Goodwin.

Erick Yoc-Us v. Att’y Gen.—Immigration—Granting Petition—Rendell

Today’s PO addresses the  other major non-DC Circuit area of administrative law: immigration petitions for review. Many immigration cases incorporate elements of criminal law, often with regard to whether certain crimes are deportable offenses.   This one, though, is a variation on the theme, asking whether the exclusionary rule of the Fourth Amendment, which prevents the government from using the fruits of an illegal search or seizure in a criminal prosecution, applies in immigration proceedings when state officials, not federal officials, are responsible for the underlying violation. In an opinion by Judge Rendell, the Court holds that the answer is “yes,” grants the petition, and remands for an evidentiary hearing so that the constitutional claim can be developed further.

Petitioners Yoc-Us and Espantzay were passengers in a van that was pulled over by a Pennsylvania state trooper, ostensibly for speeding. Greatly condensed, the officer allegedly prolonged the stop once he determined that some of the passengers were non-citizens, ordering them to a nearby rest stop and refusing to allow them to leave until ICE arrived.

At the outset of deportation proceedings, the petitioners moved to suppress the evidence of their alienage discovered as part of the traffic stop, arguing that the stop violated their Fourth Amendment rights. The immigration judge (“IJ”) denied the motion without a hearing, ruling that the exclusionary rule was not available because the sovereign that committed the violation—here, Pennsylvania—had nothing to do with the non-criminal deportation proceeding. The IJ also thought that the stop was constitutional. The Board of Immigration Appeals (“BIA”) affirmed, relying on INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), for the proposition that the exclusionary rule is only available in deportation proceedings when there are “egregious Fourth Amendment violations” that are fundamentally unfair. The BIA also agreed with the IJ that there was no prima facie case for suppression, so a hearing was not warranted.

Judge Rendell’s opinion for the Court disagrees with the agency. I will tackle the issues in a slightly different order than presented in the opinion.

First, in the main holding, Judge Rendell concludes that a “partial” exclusionary rule is available in deportation proceedings where state action (as opposed to federal action) is challengedthe “intersovereign” problem noted by the IJ. Relying on the Supreme Court’s post-Lopez-Mendoza “reluctance to have state and local officers engage in enforcement of federal immigration laws,” as expressed in recent decisions such as Arizona v. United States, 567 U.S. 387 (2012), Judge Rendell reasons that the rationale for applying the partial exclusionary rule in instances of federal officer misconduct operates with equal force when state officials have allegedly acted outside the bounds of the Constitution.

The upshot: the exclusionary rule can apply to state conduct when the record shows 1) a constitutional violation that is “fundamentally unfair,” 2) a violation that undermines the reliability of evidence, or 3) a pattern of widespread violations. In so holding, the Court joins the Fourth Circuit, which uses a similar rule.

Second, the record suggested that the petitioners had shown a prima facie violation of the Fourth Amendment because the officer arguably prolonged the stop to contact ICE and investigate their status.

Third, the allegations were egregious enough to warrant an evidentiary hearing, at least, because seizures or arrests based on race or perceived ethnicity can indeed amount to “egregious” violations of the Constitution. “The facts alleged by Petitioners,” Judge Rendell writes,” if supported by evidence, could support the conclusion that the illegal extension of the stop was solely based on race or perceived ethnicity.” Because the full facts of the claim awaited further development, Judge Rendell did not pass on its ultimate merits.

It’s a fascinating decision, although the underlying relief (basically, finding that the denial of the evidentiary hearing was an abuse of discretion) was fairly narrow, and the effect doctrinally appears to be simply extending the Third Circuit’s preexisting federal rule to the state-officer context. Of course, the opinion’s reliance on the Supreme Court’s aversion to state enforcement of federal immigration law sounds an ominous note; the author of Arizona is no longer on the Supreme Court, although Chief Justice Roberts did vote with the Arizona majority.

Joining Judge Rendell were Judges Ambro and Scirica. Joanna J. Cline of Pepper Hamilton argued for the petitioners and OIL’s Dana M. Camilleri for the government.

New opinion: a reversal in favor of the Social Security Administration [guest post]

This is a guest post by David Goodwin.

Russell Hess v. Commissioner of Social Security—Social Security—Reversal—Jordan

Approximately 1,500 federal lawsuits challenging the denial of Social Security or SSI benefits are filed each month. “[N]o other type of appeal from an administrative agency,” two law professors have remarked, “generates anywhere near the volume of litigation for district courts that disability claims do.” Wildly divergent outcomes in the agency yield wildly divergent outcomes across the district courts—even though Social Security cases, like other administrative cases, are ostensibly characterized by deference to the agency’s decision-making.

Today’s decision is about that central tension in the face of a perceived eagerness, on the part of district courts, to deny the agency the deference it is due. In Hess, the claimant lost before the agency, but prevailed in District Court. The government appealed, arguing that the Social Security Administrative Law Judge (“ALJ”) gave “valid” reasons for denying benefits that the District Court had incorrectly overlooked. The Third Circuit agreed and, in a decision by Judge Jordan, reversed with instructions to enter judgment in favor of the government.

The “somewhat complicated question” presented by the government’s appeal is whether the ALJ’s finding that Hess suffered from “moderate difficulties” in concentration, persistence, and pace undermined both a limitation to jobs requiring only simple instructions and questions along those lines to a vocational expert, as part of the complex interplay among the five steps used to determine whether a claimant is disabled. The District Court had thought that Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), required any questions posed to the vocational expert at step five to include the limitations found at previous steps. Not so, Judge Jordan says: “the findings at steps two and three will not necessarily translate to the language used at steps four and five,” even though the statement of limitation does need to reflect the claimant’s particular impairments.

Next, Judge Jordan concludes that a “simple tasks” limitation fairly reflected the finding of moderate difficulties, because the ALJ offered a “valid explanation” for it. Ramirez, Judge Jordan writes, “did not hold that there is any categorical prohibition against using a ‘simple tasks’ limitation” after a finding that a claimant “often” faces concentration, persistence, or pace difficulties. A “valid explanation” satisfies Ramirez‘s requirements.

The final piece of the puzzle is whether the ALJ’s decision was a true “valid explanation.” Central to Judge Jordan’s answer of “yes” are the ALJ’s extensive findings about the extent of Hess’s disabilities, such as the relative weight assigned by the ALJ to various expert reports, which are summarized across several pages of the decision.

Joining Judge Jordan were Judge Roth (whose statement about “magic word” requirements in a 1993 partial concurrence is cited with approval) and Judge Krause. Jordana Cooper argued for the government and Thomas F. Meister of Marzzacco Niven & Associates argued for the claimaint-appellee.

New opinion: Third Circuit approves attachment of U.S.-based assets of Venezuela’s state-owned oil company [guest post]

This is a guest post by David Goodwin.

Crystallex International v. Venezuela—Foreign Sovereign Immunities Act—affirmance—Ambro

In 2011, Venezuela nationalized its gold mines and seized gold deposits belonging to plaintiff Crystallex. Crystallex won an international arbitration award against Venezuela, confirmed its arbitration award in D.C., and set about trying to collect. An attempt to thwart asset transfers to various other entities using Delaware’s Uniform Fraudulent Transfer Act was unsuccessful, but Crystallex also went after the U.S.-based holdings of PDVSA, Venezuela’s state-owned oil company. Arguing that PDVSA was an “alter ego” of Venezuela under the Foreign Sovereign Immunities Act of 1976, Crystallex prevailed below, and today, the Third Circuit affirmed.

Judge Ambro’s opinion for the Court acknowledges the fraught political backdrop, but is anything but tentative; rather, it is a muscular, confident opinion in a very technical area of law. Jurisdictional pitfalls abound, but the primary issue is the proper application of First National City Bank v. Bancec, 462 U.S. 611 (1983), which allows judgment creditors to go after instrumentalities of foreign sovereigns if they are so “extensively controlled” that a principal/agent relationship is created. Judge Ambro summarizes the topline conclusions on pages 13 and 14, and I can do no better than to simply quote them below:

(A) whether the Bancec “alter ego” doctrine determines the District Court’s jurisdiction to attach PDVSA’s assets (it does), (B) the scope of the Bancec inquiry and whether its factors are satisfied here (they are), and (C) whether PDVSA’s shares of PDVH [the holding company for CITGO] are immune from attachment under the Sovereign Immunities Act (they are not).

There are several innovations along the way. For instance, the Court concludes that under 28 U.S.C. § 1963, sovereign immunity exceptions extend to subsequent enforcement actions that arise out of earlier litigation—which is what happened here, in what Judge Ambro terms a “continuation” of the arbitration confirmation proceedings in D.C. district court. And, in particular, Judge Ambro looks to two recent Supreme Court decisions—Republic of Sudan v. Harrison, 139 S. Ct. 1048 (2019), and Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018)—as clarifying application of the Sovereign Immunities Act and the Bancec inquiry. With regard to the latter, Judge Ambro’s opinion applies slightly different factors (from Rubin) than the District Court applied, but comes to the same conclusions. In fact, Judge Ambro writes on page 33 that actual application of Bancec is “straightforward.”

Joining Judge Ambro were Greenaway and Scirica.

The opinion cites extensively from oral argument, and with good reason: it was a four-hour tour de force. Joseph Pizzurro of Curtis Mallet-Prevost Colt & Mosle argued for PDVSA, Gibson Dunn’s Miguel Estrada argued for Crystallex, Arnold & Porter Kaye Scholer’s Kent Yalowitz argued for Venezuela, and Sullivan & Cromwell’s Amanda F. Davidoff argued for amicus appellants Blackrock Financial Management and the delightfully named Contrarian Capital Management. While he didn’t argue, former DNJ U.S. Attorney Paul Fishman was on Venezuela’s brief.

Introductions and a quick recap of Crystallex [guest post]

This is a guest post by David Goodwin.

Howdy! I’m David, and I’m a state appellate public defender in New York. As Matt mentioned last week, I will be taking care of this place while the master is away,* doffing my defender persona and donning my nerd-about-all-things-Third-Circuit guise. (Whether this particular donning and doffing is covered by the Fair Labor Standards Act is, of course, an open question.) I will try to keep up with the oncoming storm of POs, with posts generally appearing in the evening.

As I write, however, the Third Circuit has just released a 45-page opinion in Crystallex International v. Bolivarian Republic of Venezuela, the latest installment in a long-running international dispute that generated another PO back in January 2018. This new decision addresses a question explicitly left open by the prior opinion: whether Petróleos de Venezuela, S.A.  (“PDVSA”) is an “alter ego” of its parent country whose assets could be used to satisfy an arbitration award entered against Venezuela in favor of plaintiff Crystallex, under the Foreign Sovereign Immunities Act and Fed. R. Civ. P. 69(a).

The short answer: on these facts, yes. “Indeed,” Judge Ambro writes, “if the relationship between Venezuela and PDVSA cannot satisfy the Supreme Court’s extensive-control requirement, we know nothing that can.”

I suspect Matt knew this one was coming. Well timed.

Expect a detailed summary later today, along with a roundup of the impressive who’s-who of attorneys who argued the appeal.

*: I originally wrote that I was “pitch hitting” on Matt’s behalf. Alas, I suffer from a rare disorder called athletometaphorophobia: the fear of screwing up casual sports allusions. By extension, Judge Ambro’s page-5 comment about the CITGO sign outside of Fenway Park is met with a smile and a nod, both intended to communicate that I am definitely an in-the-know American who understands sportsball and its enthusiasts.


Third Circuit plans an important courthouse exhibit on judicial independence

The Third Circuit on Thursday posted on its website a 44-page request for quotes for a courthouse lobby exhibit. Now, you might imagine that’s a magical insomnia cure, but you’d be mistaken. The exhibit the court envisions is ambitious and timely—urgent, even—focusing on the subject of judicial independence.

The court’s statement contains a detailed outline of the planned exhibit, and I heartily encourage you to check it out. The exhibit will include quotations old and new, such as this by Alexander Hamilton:

The independence of the judges, once destroyed, the constitution is gone; it is a dead letter, it is a vapor which the breath of faction in a moment may dissipate.

And this by Chief Judge Smith:

[A]s seen in Brown and other decisions, the judiciary can fulfill a role as protector of individual rights when the two political branches fail to do so. Or putting it another way, the outcome of having a system of judicial review is that individual rights are more likely to be protected, especially considering that judges are far more insulated from political pressures than the political branches. This benefit has sometimes been characterized as an independent judiciary protecting against the tyranny of the majority.

The statement highlights several cases from the Third Circuit courts that showed judicial independence. Most of the examples are historical, but it notes, “If a more recent case is included in the exhibit, Judge Ambro’s opinion in Hassan, which is on the surveillance of the Muslim Community in New York City post-September 11, may be a good one to consider using.” (The superlative Hassan opinion is linked here.)

Make no mistake, this isn’t your standard boring civics display. This exhibit will be a significant statement by the Third Circuit, not just to visitors to the courthouse but to the entire nation.

I’ll be gone for a couple weeks, but CA3blog won’t be

My wife—Ms. CA3blog, if you will—was a Peace Corps volunteer in a remote village in Namibia, in southern Africa, years before we met. When we got married, the family she’d lived with sent a representative across the Atlantic to attend our wedding, and this year we’re finally returning the visit. For our family vacation this summer, Ms. CA3blog, our nine-year-old daughter, and I are headed back to the Namibian village where she lived. Ought to be a big adventure.

While away I’ll not be blogging, but panic not: David Goodwin, an eminently worthy replacement, has generously agreed to fill in while I’m gone.  David is a former Third Circuit staff attorney who went on to be a law clerk for D.N.J. Judge Hayden and CA3 Judge Fuentes, and he now works at Appellate Advocates, a non-profit defender office in New York. David is hands-down one of the sharpest Third Circuit followers I know, and I’m honored and grateful that he agreed to do it.

So, goodbye for a couple weeks, and I hope you enjoy David’s posts while I’m gone.


New opinion: Third Circuit rejects argument that immigration law’s stop-time rule applies to character requirement

Mejia-Castanon v. A.G.—immigration—affirmance—Scirica

Dissents in the Third Circuit are rare enough, but dissents authored by non-Third Circuits sitting by designation are rarer still. Once a year, maybe? It happened today in an immigration appeal, where Sixth Circuit Judge Siler (who must be the circuit’s most-frequent sitter-by-designation) dissented.

Immigrants subject to deportation can apply for cancellation of removal if they can show (a) 10 years of continuous physical presence and (b) good moral character. Congress modified the physical presence requirement with the stop-time rule, which says that physical-presence clock stops once the government serves a notice to appear.

The question in today’s appeal was whether the stop-time rule applies to the moral-character requirement, too. If an immigrant’s presence after notice service can’t help him for accruing 10 years, does that mean that bad acts after service can’t hurt him for proving good character? The court held that the stop-time rule does not apply to the moral-character requirement, holding that the relevant statute was ambiguous and applying Chevron deference to the BIA’s interpretation. The dissent disagreed, arguing that the statute wasn’t ambiguous. In my view the dissent’s reading would be less unfair but the majority’s reading is correct, alas.

Joining Scirica was Ambro; Siler CA6 by designation dissented. Arguing counsel were Theodore Murphy of the Murphy Law Firm for the immigrant and Sabatino Leo for the government.


Two new opinions, two interlocutory appeals, and two dissents

Obashi Investment Ltd. v. Tibet Pharma., Inc—civil / securities—reversal—Hardiman

In a rare certified interlocutory appeal, the Third Circuit today held that, as a matter of law, non-voting board observers affiliated with an insurer’s placement agent were not similar to directors for purposes of Section 11 of the Securities Act and therefore were not subject to suit under that provision.

Joining Hardiman was Scirica; Cowen dissented. Arguing counsel were A. Neil Hartzell of Boston and Michael Tremonte of New York for the appellants and Laurence Rosen of the Rosen Law Firm for the appellees.


Tennessee Gas Pipeline Co. v. Permanent Easement for 7.053 Acres—civil—reversal—Greenaway

From the introduction of today’s majority opinion:

On interlocutory appeal, this case now presents us with a single legal issue: whether state law or federal law governs the substantive determination of just compensation in condemnation actions brought by private entities under the [Natural Gas Act]. Because federal law does not supply a rule of decision on this precise issue, we must fill the void with a common law remedy. In doing so, we opt to incorporate state law as the federal standard. Accordingly, we will reverse the District Court’s order reaching the opposite result.

Joining Greenaway was Ambro. Chagares dissented, acknowledging that the “Supreme Court may well agree when it considers this legal issue” and that other courts’ holdings support it but arguing that the contrary outcome was compelled by a 1943 Supreme Court case. Arguing counsel were Elizabeth Witmer of Saul Ewing for the gas company and John Stieh of Levy Stieh for the landowners.

Immigration cases are awful

Radiowala v. A.G.—immigration—affirmance—Greenaway

In an unflinching opinion that reflects the workaday grotesquery of our immigration laws, the Third Circuit today denied a deportation challenge brought by a man who came to America from India fleeing violence 20 years ago, raised a family, built a successful business, and lost it all after a traffic stop.

The Board of Immigration Appeals denied cancellation of removal, ruling that the man met every requirement but one: that removing him would cause sufficient hardship to his family. The BIA accepted that the man’s business was the sole financial support for the entire family, providing food and shelter, college tuition for three kids, and medical care for a fourth in high school. All four of his kids are here legally, two as Dreamers and two as U.S. citizens. But the BIA ruled that eliminating the family’s sole source of rent, tuition, and medical care wasn’t family hardship enough. Its ruling on that score, the Third Circuit held today, in a pained opinion that begins, “We are a nation of immigrants,” was “unreviewable.”

Joining Greenaway were Chagares and Greenberg. The appeal was decided without oral argument.

Peter Phipps is confirmed to the Third Circuit

This afternoon the Senate confirmed Peter Phipps’s nomination to the Third Circuit. The vote was 56 for, 40 against, with Democratic Senators Jones, Manchin, and Sinema joining the Republicans. Judge Phipps will officially join the court, filling the seat previously occupied by Judge Thomas Vanaskie, when he takes his judicial oath and receives his commission.

The Third Circuit will now have its full complement of 14 active judges for the first time since 2013.

New opinion—Third Circuit rules for challengers to Pa. billboard laws

Adams Outdoor Advertising v. Pa. DOT—civil—partial reversal—Ambro

A billboard company challenged Pennsylvania’s laws regulating billboards, alleging that (1) the ban on billboards near exits was (a) vague or (b) a content-based speech restriction barred by First Amendment scrutiny and that (2) the permit process violates the First amendment because there is no time limit for processing permit applications. Today, the Third Circuit affirmed the dismissal of the vagueness challenge, remanded the First Amendment content-based challenge for intermediate-scrutiny review, and affirmed the district court’s ruling that the lack of an application-decision time limit violates the First Amendment.

Joining Ambro were Smith and Restrepo. Arguing counsel were Victor Cavacini of Gross McGinley for the billboard company and Claudia Tesoro for the state.

Four new opinions, including an ACA blockbuster

Commonwealth of Pa. v. President United States of America—civil—affirmance—Shwartz

The Third Circuit on Friday upheld a preliminary injunction blocking the Trump administration’s effort to provide major exemptions to the ACA’s contraceptive-care requirement. Pennsylvania and New Jersey challenged the administration’s attempted action under the Administrative Procedures Act. The Third Circuit held that the states had standing given their costs for state-funded health care resulting from lack of access to contraception. On the merits, the court held that the administration violated the APA by proceeding without notice-and-comment procedures, that its action was neither authorized by the ACA nor required by RFRA, and that the district court did not abuse its discretion by entering a nationwide injunction. Without a doubt this is one of the Third Circuit’s highest profile recent opinions. (And the panel was impressively quick for a major case, issuing the opinion less than two months after oral argument.)

I imagine the government is certain to seek Supreme Court review; it may seek rehearing en banc first, but I’d predict the odds are against it being granted. Stay tuned.

Joining Shwartz were McKee and Fuentes. Arguing counsel were Michael Fischer, chief deputy for impact litigation for the Pa. AG’s office, for the states; Hashim Moopan for the government (who in the linked profile lists his daily habit as reading How Appealing); and Mark Rienzi of the Becket Fund for Religious Liberty for intervenors.


Tilija v. AG—immigration—reversal—Greenaway

The Board of Immigration Appeals improperly denied a Nepali petitioner’s motion to remand his removal proceeding, the Third Circuit held. The BIA failed to accept his new evidence as true, and under the correct standard the man successfully made a prima facie claim for remand.

Joining Greenaway were Shwartz and Bibas. Arguing counsel were Rachel Horton of Schnader Harrison for the petitioner and Andrew Oliveira for the government.


U.S. v. Blunt—criminal—reversal—Restrepo

A husband and wife were convicted of benefits fraud after a joint trial, and on appeal they argued that the district court erred in denying their motions to sever. The Third Circuit agreed, vacating both defendants’ convictions: the husband’s because he was prejudiced by his wife’s otherwise-inadmissible testimony, and the wife’s because she was forced to choose between her privilege against testifying against her spouse and her right to testify in her own defense.

Joining Restrepo were Smith and McKee. Arguing counsel were Jennifer Wilson (whose MDPA nomination is pending before the full Senate) for the wife, former Fisher clerk Quin Sorenson of the MDPA defenders for the husband, and Kim Daniel for the government.


Nkomo v. AG—immigration—affirmance—Hardiman

The Third Circuit rejected an immigration petitioner’s argument that the immigration judged lacked jurisdiction over her removal proceedings because the notice to appear failed to specify the time and place of the hearing. It also rejected her challenges to removal on the merits.

Joining Hardiman were Chagares and Siler CA6 by designation. The appeal was apparently decided without oral argument.

Catching up on the summer opinion tidal wave—part II [updated]

Coba was issued July 8, the other two on July 5.

Coba v. Ford Motor Co.—civil—affirmance—Krause

[Update: in response to a panel-rehearing petition, the court issued an opinion on July 26 revising footnote 10 to remove its assertion that the appellant had mischaracterized evidence and to clarify why the evidence did not support the appellant’s position. The amended opinion is now linked above, the old opinion is here.]

Ford sold vehicles for a decade with gas tanks whose linings flaked off into the gas, and, as you might imagine, that wasn’t a bit good for the vehicles’ fuel filters, injectors, or engines. The plaintiff here sued in New Jersey federal court, alleging various state-law theories. The district court entered summary judgment for Ford, and the Third Circuit affirmed. After confirming that the district court had jurisdiction under CAFA even though it denied class certification before its final ruling, the court upheld summary judgment on all grounds, including that a warranty for defects in materials or workmanship does not cover design defects.

Joining Krause were Jordan and Roth. The case was decided without oral argument.


Spartan Concrete Prods. v. Argos USVI—antitrust—affirmance—Hardiman

Two Virgin Islands concrete companies engaged in a price war. The companies used the same concrete supplier, and that supplier gave a 10% volume discount to the bigger one but not the smaller one. The smaller company sued the supplier, alleging antitrust price discrimination. The district court entered a directed verdict for the supplier, and the Third Circuit affirmed. The court held that the plaintiff failed to show antitrust injury essentially because it failed to show that its inability to win the price war was caused specifically by the 10% discount. The court also upheld the denial of the plaintiff’s belated motion to amend its complaint to add other claims.

Joining Hardiman were Chagares and Restrepo. Arguing counsel were Christopher Kroblin of Kennerhals Ferguson for the plaintiff and Howard Feller of McGuire Woods for the supplier.


U.S. v. Santarelli—habeas—reversal—Restrepo

In a decision that’s notable for habeas lawyers but likely rather impenetrable for everyone else, the Third Circuit held that (1) a petitioner’s amended claims related back to those in her original petition and (2) the petitioner’s motion to raise additional claims that she filed after the district court’s denial was not a successive petition because it was filed before she exhausted all of her appellate remedies from the denial of the initial petition.

Joining Restrepo were McKee and Ambro. Arguing counsel were Connor Baer (formerly of K&L Gates, now clerking for a Third Circuit judge) for the petitioner and Sean Camoni for the government. K&L Gates was appointed by the Third Circuit to represent the petitioner on appeal pro bono.

The summer opinion tidal wave is upon us—recent opinions, part I

It’s July, which means Third Circuit clerkships are wrapping up and the scramble to get opinions out the door is on. Last month was the calm before the storm. This month: the storm. I’m out of town this week and had two deadlines yesterday so I’m sadly behind on my blogging. This is my first of two posts summarizing the recent opinions.

United States v. Payano—criminal—reversal—Krause

This is a significant criminal opinion. The Third Circuit held that a district court’s miscalculation of a defendant’s statutory sentencing range was plain error. The court emphasized the difference between the plain-error “substantially affects” standard for prejudice and a preponderance standard, and it held that the error here met that standard largely due to the prosecution’s reliance on the error in its sentencing arguments. The court rejected the argument that statutory-sentencing-range errors are presumptively prejudicial like Guidlines-range errors are.

Joining Krause were Jordan and Roth. Arguing counsel were former Restrepo clerk Abigail Horn of the EDPA defenders for the defendant and Bernadette McKeon for the government.


GN Netcom v. Plantronics—civil—partial reversal—Fisher

Hard to beat this intro for clarity:

GN Netcom, Inc. filed an antitrust lawsuit against competitor Plantronics, Inc. Plantronics executives deleted emails relevant to the litigation and instructed others to do the same. Many of these emails were unrecoverable, prompting GN to move for default judgment under Federal Rule of Civil Procedure 37. The District Court acted within its discretion when it denied the motion for default judgment, instead instructing the jurors that they were permitted to draw an adverse inference against Plantronics because of the missing emails. However, the District Court committed reversible error when it excluded GN’s expert testimony on the scope of Plantronics’ spoliation. Accordingly, we will affirm in part, reverse in part, and remand for a new trial.

Joining Fisher were Smith in part and McKee; Smith dissented in part, disagreeing that excluding expert testimony on spoliation warranted reversal. Arguing counsel were Elisabeth Theodore of Arnold & Porter for GN and Jon Dean of California for Plantronics.


Forrest v. Parry—civil rights—partial reversal—Greenaway

“Woefully deficient” is how the Third Circuit described the Camden Police Department’s investigation of officer-misconduct complaints, and things only went downhill for the defendants from there. The Third Circuit held that the district court improperly granted summary judgment on some claims, improperly excluded evidence, and issued jury instructions that confused to the relevant law. The core problem was that the district court drew artificial lines between different theories supporting the claims and the evidence supporting them.

Joining Greenaway were Bibas and Fuentes. Arguing counsel were former Fisher clerk Elizabeth Rose of Sullivan & Cromwell for the plaintiff, and Daniel Rybeck and Lilia Londar of Weir & Partners for the defendants.


Simon v. Gov’t Virgin Islands—criminal—partial reversal—Rendell

The Third Circuit reversed the denial of habeas corpus relief on two claims, holding that (1) the petitioner was entitled to an evidentiary hearing on his claim that the prosecution failed to disclose a prior deal with a witness and (2)  he also was entitled to an evidentiary hearing on his ineffective-assistance claim where his trial counsel also represented a co-conspirator.

Joining Rendell were Smith and Jordan. Arguing counsel were Joseph DiRuzzo III of Florida for the petitioner and Su-Layne Walker for the Virgin Islands.

New opinion—Third Circuit holds that one of world’s largest sellers is a “seller”

Oberdorf v.—civil—partial reversal—Roth

Amazon is subject to strict liability for injuries caused by defective products sold by other vendors on its website, the Third Circuit held today.

A woman sued Amazon after a dog collar she bought on Amazon from a third-party vendor broke and the recoiling dog leash left her blind in one eye. Her claims included strict liability, negligence, and failure to warn. Amazon moved for summary judgment on two grounds, both improbable-sounding. First, it argued that it wasn’t a “seller” in sales on its website involving third-party vendors and thus couldn’t be held strictly liable under Pennsylvania product-liability law. Second, it argued that it was a “provider … of an interactive computer service” posting “information provided by another information content provider” (think Craigslist or an online chat room) and thus shielded from liability by the Communications Decency Act. The district court sided with Amazon on both counts.

Today, the Third Circuit largely reversed. It held that (1) under Pennsylvania law, Amazon is a “seller” in third-party-vendor sales from its website, and (2) Amazon is not shielded from liability by the CDA for third-party-sale claims that are based on its “role as an actor in the sales process,” but it is shielded for claims based on its failure to add information such as warnings to vendors’ content.

Joining Roth were Schwartz in full and Scirica in part. Scirica dissented as to strict liability, arguing that “well-settled Pennsylvania products liability law precludes treating Amazon as a ‘seller’ strictly liable” for third-party-vendor claims. Arguing counsel were Eric Miller—formerly of Perkins Coie, now of the Ninth Circuit—for Amazon and David Wilk of Lepley Engelman for the woman.

New opinion: pretrial-release order no barrier to ICE detainer

United States v. Soriano Nunez—criminal / immigration—affirmance—Shwartz

A defendant was indicted for falsely claiming U.S. citizenship and related crimes. The magistrate judge denied the government’s motion for pretrial detention and set conditions for her pretrial release, but ICE blocked her release by lodging a detainer. The defendant moved to dismiss the indictment or release her, and the district court denied both requests. Today, the Third Circuit held that (1) it lacks jurisdiction to hear the motion to dismiss the indictment before judgment, and (2) the criminal-case release order does not foreclose ICE detention.

Joining Shwartz were McKee and Fuentes. Arguing counsel were Robert Zauzmer for the government and Jose Campos of Philadelphia for the defendant.

Three new opinions

E.D. v. Sharkey—civil rights—affirmance—Restrepo

[Disclosure: I helped to author an amicus brief filed on behalf of the ACLU and other groups in support of the immigration detainee, and I assisted the detainee’s able counsel with oral-argument preparation as a moot court judge.]

An employee at the controversial immigrant family detention center in Berks County, Pennsylvania, had sexual contact with a woman being detained there. The woman had fled Honduras with her three year-old child to escape violence and sexual assault. She filed a civil-rights suit alleging that the employee coerced her into giving in to his sexual demands and that the other staffers failed to stop him. The defendants moved for summary judgment, asserting qualified immunity and challenging the merits and municipal liability, and the district court ruled largely in the woman’s favor.

Today, the Third Circuit affirmed the denial of qualified immunity, holding that immigration detainees are entitled to the same due process protections as pretrial detainees, that the right not to be sexually assaulted by a state employee while confined was clearly established, and that the right to be protected by co-workers aware of ongoing assaults also was clearly established. The court observed that the disputed question of consent did not support summary judgment given both Pennsylvania law and ICE policies barring detainee sexual abuse regardless of consent, and the court questioned whether consent will be relevant at trial. Finally, the court denied the county’s appeal for lack of jurisdiction because it challenged municipal liability not qualified immunity.

Chief Judge Smith concurred to express concern about the form of the district court’s order, which (as EDPA opinions often do) set out its reasoning in a single footnote. He observed that, while footnote opinions are not inherently problematic, this one’s failure to identify undisputed facts and its cursory discussion without referring to record evidence fell short of what the Third Circuit requires in qualified immunity cases.

Joining Restrepo were Smith and Fuentes; Smith also concurred. Arguing counsel were Matthew Connell of MacMain Law Group for the appellants and Su Ming Yeh of the Pa. Institutional Law Project for the woman.


TD Bank v. Hill—civil / intellectual property—partial reversal—Krause

A long-running dispute between a bank and its former CEO culminated in a messy copyright squabble over a book the CEO wrote. Parts of his book, it seems, were adopted from a manuscript he’d written when he was still CEO for which the bank held a copyright. The district court rejected the CEO’s defenses on the copyright claims, but it vacated the broad injunction that the district court had entered blocking him from selling the book because no presumption of irreparable harm applied and because the bank had no real plans to publish its manuscript. The opinion includes nods to the case’s subject matter like “the latest chapter,” “the plot thickened,” “the best laid plans of mice and men,” and “peripeteia.”

Joining Krause were Fuentes and Cowen in part; Cowen dissented in part, arguing that the majority erred in ruling that the bank hadn’t waived its copyright-assignment argument. Arguing counsel were William Tambussi of Brown & Connery for the bank and Howard Hogan of Gibson Dunn for the CEO.


United States v. Baker—criminal—affirmance—Jordan

At the government’s request, the Third Circuit today published a previously non-precedential opinion in a criminal appeal, holding that the district court did not err in (1) refusing to give an entrapment instruction, (2) refusing to instruct the jury on an “I only meant to borrow it” defense to stealing public money, or (3) barring testimony by the defendant’s wife about her medical expenses.

Joining Jordan were Krause and Roth. The case was decided without oral argument.

How to become a good appellate lawyer

If you ask most normal lawyers what it takes to become a good appellate lawyer, I suspect the answers you get would boil down to something like this:

(1) be born freakishly smart, and

(2) possess people skills so deficient that you’re not able to pull off other, better-paying lawyer gigs.

This is wrong. Sure, brainpower helps, and so does an affinity for monkish solitude shackled to your computer. But innate brainy introversion isn’t the key to being a good appeals lawyer. The real key, I’m convinced, is sheer cussedness, a goat-like determination to win cases and to continually improve.

No, I mean it.

What, “Be Goat-Like!” isn’t the professional inspiration you clicked on this post to receive?

[Smiles emptily]

Okay, fine. Here, more wordily, are my big ideas on how to become a good appellate lawyer:

1. Find winning issues. There’s a Statue of David inside every big hunk of marble, but most sculptors settle for something far less. Is there a winning issue inside every appellate record? No there is not, says this bitter habeas lawyer. But digging for the strongest issues, and the strongest ways of framing them, is what sets great appellate lawyers apart from all the great-seeming ones. It’s so, so much less work to find the competent-sounding losing issues that everyone else cheerfully settles for than it is to keep hunting for the winners. That hunting is anything but glamorous. To everyone else, your “relentless” looks quite a bit like “unhinged.” Then, after you finally find the winning issue, it just looks obvious—everyone figures you’re just the lucky schmuck who bumbled into another good claim. So be it. Everything else you do during an appeal, all your Garner-approved issue statements and Butterick-approved typography, are mere pinstripes on your race car: the issues you find and frame are the engine.

2. Learn to write clearly. Some things you either have or you don’t, like long legs or Judge Ambro’s voice. Writing ability ain’t like that. Writing is a skill, which means the way to become competent is to set out on a deliberate course of study. Ever made a conscious decision to improve your writing, and then followed through on that decision over a period of months and years? No? Then (a) your writing probably stinks (sorry!), but (b) dramatic improvement is there for the taking.

For appellate advocacy, the #1 most important thing is clarity. When you write sentences that judges and clerks can understand without re-reading them three times, good things happen. To get started, pony up for a boring and stupid-expensive book you’ve probably never heard of: George Gopen’s The Sense of Structure. (Not quite as good, but far less expensive: used older editions of Joseph Williams’s Style.) Thank me later.

3. Learn tone. The #1 thing that other good lawyers get wrong but good appellate advocates get right is tone. I’ve blathered on about tone already in the context of oral argument, and the same basic points apply to brief-writing, too. Said I:

The right tone for appellate oral argument is a challenge to define. Be crisp and prepared but not wooden. Be reasonable but not wishy-washy. Be persuasive but not too emphatic. Four parts advocate, one part law professor, add just a dash of actor. It’s hard enough to define the right tone—summoning forth that tone under the knee-melting stress of argument is much harder, and maintaining it under fire is hardest of all.

Most oral advocates, in my view, err on the side of over-certainty. We argue as if the law is all obvious, the facts on each point overwhelming. The problem isn’t just that adjectives and adverbs don’t persuade, or that appellate judges bristle at bombast. The deeper problem is that judges don’t want to hear how easy and obvious your case is. If they thought it was that simple, they probably wouldn’t have granted you argument.

Our natural impulse is to assure the judges how overwhelming our side is, but most judges don’t want pat answers to hard questions. They want lawyers who know the facts and the law cold who are willing to help them grapple with the hardest parts of the case. You ain’t much help with the grappling if all you can do is deny that any hard parts exist.

The best way to learn tone, in my view, is to study how the great appellate advocates make their points. Pick two or three you admire (if you need some ideas, try here), get some of their briefs, and get reading. How do they talk about the ruling below, the other side’s arguments, and their own weakest points? Spoiler alert: it’s not the same way the crummy lawyers do.

4. Indulge delusions of grandeur. In reality, who is likely to read your brief with real care? Opposing counsel. The clerks. The judges, probably. Maybe mom. Will the quality of this brief meaningfully impact your professional reputation? Probably not. Heck, will anyone even notice whether you swung for the fences or just went through the motions? Quite possibly not.

That realization, friends, is the reef upon which many a promising appellate career founders. Why put in 100% effort on one appeal, when you can put in 25% effort on four, and get paid for four, without anyone the wiser? Your clients won’t know, the judges won’t care, and everyone else is too busy on their own cases to notice.

Why, then? One answer to this question comes from Anthony Bourdain of all people. In Kitchen Confidential, the book that launched him from restaurant anonymity towards TV fame, he describes the difference between his own middling cooking career and a contemporary’s he admired:

Now here, exactly, is where our career paths divide.

Scott had some chops now. He was good on the line. He had a résumé, some notable names and recommendations, working experience, exposure to France and French food.

So did I, at that point in my career. I was good! I’d been to France. I had a CIA diploma—at a time when that was a pretty rare and impressive credential. So, what the hell happened? How come I’m not a three-star chef? Why don’t I have four sommeliers?

Well, there are lots of reasons, but one reason is that I went for the money. The first chef’s job that came along I grabbed. And the one after that and the one after that. Used to a certain quality of life—as divorcees like to call it, living in the style to which I’d grown accustomed—I was unwilling to step back and maybe learn a thing or two.

Scott was smarter and more serious. He was more single-minded about what he wanted to do, and how well he wanted to do it.

Appellate lawyers, like chefs, only achieve our potential if we’re single-minded about what we want to do and how well we want to do it.

That means putting in the (unpaid, invisible) work between cases learning skills and confronting weaknesses. It also means, on each case you do, indulging your delusions of grandeur. Treat every brief and every argument like it’s the one that judges and lawyers will notice—and will take your measure by.

Because one day, it will be.

Phipps nomination advances to Senate floor

The Third Circuit nomination of Judge Peter Phipps advanced out of the Senate Judiciary Committee today on a straight party-line vote. Video of today’s hearing is here, the Phipps vote starts at 35:13.

Ranking Democrat Dianne Feinstein spoke against his nomination, noting that he has been on the district bench less than nine months and that home-state Senator Bob Casey had not returned his blue slip on Phipps’s nomination.

The committee also favorably reported two Pennsylvania district court nominations, William Stickman IV for WDPA and Jennifer Philpott Wilson for MDPA.

New opinion: Third Circuit upholds denial of plea withdrawal

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

A Virgin Islands man with no criminal record and a third-grade education pled guilty to conspiracy to sell drugs. Several months later, he sought to replace his lawyer, asserting that counsel had coerced into pleading guilty. New counsel was appointed and quickly moved to vacate the man’s plea, asserting entrapment by an informant. The district court denied the motion, reasoning that entrapment did not justify withdrawal of a guilty plea because it was merely legal innocence not factual innocence.

Today, the Third Circuit rejected the district court’s reasoning but affirmed anyway. First, the court held that the plea agreement’s waiver of appellate challenges to his sentence was not a waiver of challenges to his conviction including denial of motion to withdraw his plea. Second, joining the majority of a lopsided circuit split, the court held that an assertion of legal innocence such as entrapment can support withdrawal of a guilty plea. Here the court clarified that its 2001 Brown decision rejected an effort to withdraw a guilty plea based on insufficiency of the evidence, not legal innocence.  But third, it held that the defendant’s entrapment claim was factually insufficient to make the district court’s denial of plea withdrawal an abuse of discretion.

Joining Jordan were Smith and Rendell. Arguing counsel were Daniel Lader of Florida for the defendant and Sigrid Tejo-Sprotte for the government.

Three new opinions, including a notable employee-retaliation-suit reversal

Baloga v. Pittston Area School Dist.—contsitutional / public employment—partial reversal—Krause

The unimprovably clear introductory paragraph:

Mike Baloga, a custodian for the Pittston Area School District and vice president of the custodial union, alleges that the District and its maintenance director, Jim Serino, violated his First Amendment rights by retaliating against him based on his union association and related speech. Treating Baloga’s speech and association claims together, the District Court granted summary judgment in favor of the District and Serino, concluding that Baloga’s activity was not constitutionally protected because it did not implicate a matter of public concern. As we recently emphasized in Palardy v. Township of Millburn, however, where a public employee asserts retaliation in violation of the First Amendment as a free speech claim and a pure union association claim, those claims must be analyzed separately, and consistent with longstanding Supreme Court precedent, there is no need to make a separate showing of public concern for a pure union association claim because membership in a public union is “always a matter of public concern.” 906 F.3d 76, 80–81, 83 (3d Cir. 2018), cert. denied, No. 18-830, — S. Ct. —, 2019 WL 2078114, at *1 (May 13, 2019). Because Baloga has raised a triable issue about whether he was retaliated against based solely on his union association, we will affirm in part, reverse in part, and remand for further proceedings.

Joining Krause were Cowen and Fuentes. Arguing counsel were Cynthia Pollick of the Employment Law Firm for the custodian and Thomas Specht of Marshall Dennehey for the school district.


In re: S.S. Body Armor I, Inc.—bankruptcy—affirmance—Greenaway

Honestly, I struggled while reading this opinion to get over the fact that someone decided to name their company “S.S. Body Armor I.” It ended badly. In this appeal, the Third Circuit held that the district court’s denial of an emergency stay motion qualified as an appealable final order because denying the stay prevented “a full airing of the issues on appeal and a decision on the merits.” On the merits, it held that the district court properly denied the stay motion, a holding ultimately derived from its rejection of one side’s striking argument that $5 million in attorneys’ fees was inadequate compensation for its preservation of a specific legal claim.

Joining Greenaway were Ambro and Scirica. Arguing counsel were Alan Kornfeld of California for the appellee and Gary Sesser of New York for the fee challengers.


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

Can an officer patting down a suspect identify a bulge in the suspect’s pocket, “by its feel and texture” alone, as a bag of marijuana? Indeed he can, held the Third Circuit today.

Joining Hardiman were Porter and Cowen. The case was decided without oral argument.

New opinion—separate accrual of trade-secrets claims saves bone-cement suit

Heraeus Medical GmbH v. Esschem—civil—partial reversal—Krause

The Third Circuit today held that, under Pennsylvania law on statutes of limitations, each act in a continuing trade-secret misappropriation accrues separately, so that even if the misappropriations began outside the limitations period a party can sue for the ones that occurred within the period. The appeal arose from “another skirmish in a long-running, cross-border court battle over the alleged theft of a trade secret: Heraeus Medical GmbH’s recipe for its bone cement.”

Joining Krause were Cowen and Fuentes. Arguing counsel were 1990 World University Debate Champion Matthew Wolf of Arnold & Porter for the appellant and Richard Harris of Greenberg Traurig for the appellee.


New opinions — federal bar on mentally ill persons possessing firearms doesn’t violate Second Amendment

Beers v. A.G.—civil / constitutional—affirmance—Roth

A man who was involuntarily committed to a psychiatric facility in 2005 after telling his mother he was suicidal and put a gun in his mouth. He had no mental health treatment after 2006. After a doctor opined in 2013 that he was able to handle firearms safely without risk of harm to himself or others, the man filed a Second Amendment as-applied challenge to the federal statute barring persons who had been committed to a mental institution from possessing guns. The district court dismissed the suit, and today the Third Circuit affirmed: ” Even though he claims to be rehabilitated, Beers cannot distinguish himself from the
historically-barred class of mentally ill individuals who were excluded from Second Amendment protection because of the danger they had posed to themselves and to others.”

Joining Roth were Shwartz and Rendell. Arguing counsel were Michael Gottlieb of Vangrossi & Recchuiti for the challenger and Tyce Walters of the DOJ Civil Division for the government.


Fan v. Stonemor Partners LP—civil / securities—affirmance—Restrepo

The Third Circuit affirmed dismissal of a securities-fraud suit against a company that sold funeral services to living people (“pre-need sales”), which evidently leads to accounting issues. The court held the company’s financial disclosures were sufficient to render various alleged misrepresentations immaterial.

Joining Restrepo were Smith and McKee. Arguing counsel were David Goldsmith of New York for the plaintiffs and Michael Holmes of Texas for the company.

The Great Opinion Drought of 2019 hath ended

The Third Circuit issued two precedential opinions today, it’s first precedential opinions since May 28. Has the court ever before not issued its first precedential opinion of the month before its 19th day? I wonder. Anyhow, it’s been a remarkable drought. Of course, this drought is the calm before the traditional end-of-clerkship summer deluge.

To the opinions!

Blake v. JP Morgan Chase Bank—civil—affirmance—Bibas

The Third Circuit today affirmed the dismissal of a consumer class action on timeliness grounds, agreeing with the consumers that each violation of the relevant statute accrues separately, but rejecting their argument that their class claims warrant American Pipe tolling because they were filed while a prior related class action was still pending.

Joining Bibas were Shwartz and Krause. Arguing counsel were Donna Siegel Moffa of Kessler Topaz for the consumers and Jonathan Massey of Massey & Gail for the bank.


Houser v. Superintendent—prisoner rights—affirmance—Chagares

The introduction:

Darien Houser filed a pro se lawsuit against prison officials for deliberate indifference to his medical needs. The District Court appointed him counsel. When counsel withdrew, however, the District Court declined to appoint a new lawyer. Houser tried the case himself and lost. He now argues that the District Court abused its discretion by denying him new counsel without considering the six factors that this Court set forth to guide district courts in Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993). We hold that Tabron applies to successive motions to appoint counsel, but that denying Houser new counsel was not an abuse of discretion. Accordingly, we will affirm.

Joining Chagares were Ambro and Greenaway. Arguing counsel were Teresa Akkara, now of Paul Weiss but formerly of Penn Law, I suspect she argued this as a law student) for the prisoner and Sean Kirkpatrick of the state Attorney General’s office and John Hatzell Jr. for the defendants.

Scirica clerk lands a Supreme Court clerkship, too

Recent Penn Law graduate Louis Capozzi, who recently began a clerkship for Third Circuit Judge Anthony Scirica, has (per David Lat on Above the Law, link here) been hired by Supreme Court Justice Neil Gorsuch to clerk OT 2021. Capozzi graduated law school summa cum laude, was executive editor of the law review, and president of the school’s Federalist Society chapter. Congratulations Mr. Capozzi!

While the Third Circuit isn’t a top feeder circuit, Judge Scirica has now had a number of clerks go on to Scotus clerkships in recent years, including Parker Rider-Longmaid (Ginsburg), William Levi (Alito), and Dana Irwin (Alito).

Meanwhile, Third Circuit alum Laura Wolk, who clerked for Judge Hardiman, begins her Scotus clerkship with Justice Clarence Thomas in October.

So, while the Third Circuit still may not be Scotus feeder central, it’s getting a few and my guess is it’ll get even more in the years ahead

Panel grants do-over of Vanaskie-authored shareholder-suit opinion

This past December 26, days before Judge Thomas Vanaskie’s retirement from the Third Circuit took effect, the court issued an opinion authored by Judge Vanaskie in Jaroslawicz v. M&T Corp., link here. The opinion reversed the dismissal of a shareholder suit arising from a bank merger.

Yesterday, with this order, the panel (Judges McKee and Siler CA6 by designation) granted the petition for rehearing, vacated its opinion, and reconstituted the panel to replace Judge Vanaskie with Judge Paul Matey.

In a separate order, the court directed the parties to submit supplemental briefs on whether a 1976 Third Circuit opinion conflicted with a later Third Circuit opinion and opinions from two other circuits on the degree of culpability required for claims under § 14(a) of the Exchange Act and on when certain regulatory risks must be disclosed.

Two new opinions

Sambare v. AG — immigration — affirmance — Restrepo

Imagine being deported from the country where you’ve lived, legally, for over a decade for driving a vehicle after smoking marijuana. Today, the Third Circuit denied a man’s petition for review challenging his order of removal, holding that the man’s Pa. DUI conviction supported his removal as a “violation of … any law or regulation of a State … relating to a controlled substance …, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.”

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


Mauthe v. Optum Inc. — civil /consumer — affirmance — Greenberg

A company that sells data about health care providers sought to gather that data by sending providers unsolicited faxes asking them to submit their data. A fax recipient sued the company, alleging that the faxes violated the Telephone Consumer Protection Act, but the district court granted summary judgment in favor of the alleged spam faxer and today the Third Circuit affirmed. The TCPA bars unsolicited advertisements, and the court held that to qualify as an advertisement the fax must “directly or indirectly encourage[] the recipient to influence the purchasing decisions of a third party.” Alas.

Joining Greenberg were Ambro and Restrepo. Arguing counsel were Philip Bock of Chicago for the fax recipient and Jessica Ellsworth of Hogan Lovells for the fax sender.

New order requires some (but not lawyers) to lock up their smartphones and laptops inside the courthouse

The Third Circuit today posted a new standing order on its website, link here. The order provides that, effective June 3, the marshals at all federal courthouses in the Eastern District of Pennsylvania (including the Third Circuit’s Byrne courthouse) will implement a new procedure that places significant new limits on use of electronic devices including phones inside the courthouse buildings. The order is signed by EDPA Chief Judge Sanchez. Everyone not exempted from the policy has to keep their devices in locked pouches until they leave.

Lawyers are among those exempted from the new policy, as are jurors, court officers and staff, law enforcement, and media. But lawyers can violate the order merely by letting non-exempted folks like paralegals, investigators, or assistants use their electronic devices inside, which seems certain to lead to inadvertent violations.

The order say that the policy applies to laptops, but how it does so is unclear to me. Under the policy, “all cameras, cellular telephones, smart phones, and similarly sized personal electronic devices” have to be turned off and carried in locked pouches. Are laptops “similarly sized personal electronic devices”? Do they fit in the vouches? If not, what happens to them under the new procedure? We’ll see.

Worth a careful read.

New opinion–Third Circuit vacates order sealing Avandia appeal documents

In re: Avandia Marketing (United Food & Commerical Workers Local 1776)—civil—reversal—Smith

In an interesting procedural opinion issued late yesterday, the Third Circuit vacated a district court’s ruling sealing some documents at GlaxoSmithKline’s request that the appellant wanted to include in the appendix on appeal:

We conclude that the District Court failed to apply the proper legal standard for the common law right of access, which requires as a starting point the application of a presumption of public access. See Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986). By applying, instead, our standard for a protective order under Federal Rule of Civil Procedure 26, the able District Judge incorrectly placed a burden on the plans to show an interest in disclosure—rather than on GSK to justify continued sealing. We will therefore vacate and remand to allow the District Court to consider GSK’s motions for continued confidentiality under the appropriate standard.

The panel majority declined, on constitutional-avoidance grounds, to reach the appellant’s argument that disclosure was required by the First Amendment’s right of access to civil trials. Judge Restrepo dissented on this point, expressing his view that avoidance was not required and that access to the documents was constitutionally required.

Joining Smith were Ambro in full and Restrepo in part; Restrepo dissented in part. Arguing counsel were former McKee clerk Hannah Brennan of Massachusetts for the appellant and Sean Fahey of Pepper Hamilton for GSK.

A quick report on last night’s bench-bar reception, plus my soapboxing

Last night the Third Circuit Bar Association hosted a reception at the courthouse in conjunction with the court’s May en banc sitting. I counted eight Third Circuit judges there, along with a nice turnout from law clerks, court staff, and attorneys. 3CBA president Andrew Simpson flew all the way from St. Croix just to be there, past president Jim Martin came out from Pittsburgh, and Chief Judge Smith even attended, less than two weeks after his hip replacement surgery. It was a wonderful event.

One observation: a big chunk the lawyers there last night were among the circuit’s most established and successful Philly-area federal appellate practitioners. That’s hardly surprising. But, people, events like this are emphatically not just for the Third Circuit in-crowd.

If you aspire to do more federal appeals, and to do them better, then events like last night’s reception are for you. Recent clerks, younger lawyers, women and minority lawyers, associates, solo and small-firm and non-profit lawyers, just-scraping-by immigration lawyers, etc: events like this are for you.

Getting to chat with judges is fun. You will never believe how kind and friendly Judge Chagares is. Judge Hardiman will make you laugh out loud. Judge Restrepo has a gift for making you feel more clever than you really are. And meeting other lawyers who share your nerdy appellate enthusiasm is inspiring, and mighty useful when you need moot judges, amicus authors, or panicky-filing-day advice, which you will.

I bet it’s common to feel like you’re on the outside looking in when it comes to Third Circuit practice. I long felt that way, certainly, and in some ways I still do. Way too many big Third Circuit arguments still pit one white-haired-white-guy partner against another. Often they’re dynamite advocates, sure, but we know they ain’t the only dynamite advocates in this circuit.

Events like last night’s reception, and groups like the Third Circuit Bar Association, can be vehicles for perpetuating the advantages of the haves—but, for the have-nots, they offer real opportunities, too.

Seize them.

A few thoughts on en banc oral argument: splitting time, the Soliloquy Rule, and flip flops somehow

I had the pleasure of attending the Third Circuit’s en banc oral argument this morning in Bastardo-Vale v. Attorney General. The heart of the issue was whether the en banc court should overrule prior circuit precedent rejected by other circuits in interpreting an immigration statute. It was a lively argument and I encourage Third Circuit practitioners to listen to it once audio is posted (or watch it, if the video is posted).

In the meantime, watching the argument inspired a few practice thoughts:

  • The petitioner’s side divided argument between counsel for the petitioner and amicus counsel. I’m never a fan of splitting argument, and I think the dynamics of en banc argument, where time is limited and the judges are scrambling more than usual to get a question in edgewise, make it even less attractive. Sometimes splitting up the argument among multiple advocates is unavoidable, as in multi-party appeals where the different parties have truly diverging interests, but I think counsel should view the argument-splitting option with real skepticism, especially in en banc arguments. Everyone made do well enough this morning, but my advice is to make the tough choice and pick the best advocate to present.
  • Specifically here, petitioner’s counsel proposed to split their rebuttal time. Chief Judge Smith denied the request, fortunately for them in my view, observing that it is difficult enough for individual judges to get their questions in and fracturing the rebuttal would make it even more difficult.
  • The Third Circuit has a well-established procedure in en banc arguments of giving each side five minutes at the start uninterrupted by questions. I very much wish I knew more about how that procedure came to exist and whether the judges currently view it as beneficial. I haven’t argued an en banc case, and maybe I’d change my tune if I did, but I don’t like the circuit’s uninterrupted-start procedure, which I’ve decided to call the Soliloquy Rule. As an advocate, I see the briefs as my chance to say my piece uninterrupted; oral argument is my chance to find out what the judges think and respond as best I can. While I get that articulating a coherent overview is a bigger challenge for counsel when there are a dozen or more judges firing questions, I just question whether that problem warrants the time it consumes.  Also, while the best advocates can use their monologues effectively, less experienced ones often head off down unhelpful paths, and the rule prevents judges from steering them to surer ground. Anyhow, the practice idea I’d offer is that the Soliloquy Rule can be waived, in full or in part, and I’d encourage counsel to consider doing so.
  • Finally, I’ve banged this drum before, but: don’t talk over judges. Don’t. Talk. Over. Judges. It’s a lot harder than it sounds, so make it a focus of your argument preparation. Practice it at home the week before (if nothing else, a welcome arg-prep consolation prize for your spouse). Write it in all caps across the top of your podium notes. It’s the most common argument blunder I see, but a blunder it is. Would you show up for your oral argument in cut-off shorts and flip flops? Not in a million years. That’s how we should feel about talking over judges, too.

New opinion — Third Circuit clarifies standard for government to re-open its case

United States v. Trant—criminal—affirmance—Smith

The Third Circuit today affirmed a Virgin Islands man’s conviction for being a felon in possession of a gun, rejecting various challenges including the defendant’s argument that the court shouldn’t have allowed the prosecution to reopen its case after it forgot to introduce a stipulation. The court clarified that the standard for reopening the government’s cases-in-chief focused on prejudice to the defendant and did not disfavor re-opening. The court observed, “A trial should be a solemn exercise in a search for truth, not a game of ‘gotcha,'” which I can’t quite restrain myself from observing is a sentiment not often enough invoked to the benefit of persons facing deprivation of liberty.

Joining Smith were Jordan and Rendell. Arguing counsel were Sigrid Tejo-Sprotte for the government and Gabriel Villegas of the DVI federal defender’s office for the defendant.


An initial look at Peter Phipps, Trump’s next Third Circuit nominee

President Donald Trump announced on May 3 that he intended to nominate U.S. District Judge Peter Phipps to the Third Circuit’s final open seat. As far as I can tell the nomination hasn’t formally been made yet, but presumably that will happen soon. [Update: the Senate Judiciary Committee indeed received the nomination on May 13.]

Phipps currently serves as a federal judge in the Western District of Pennsylvania. He was nominated by Trump in February of last year and was confirmed by voice vote in October, seven months ago. Before that, he was a career trial attorney in the U.S. Department of Justice’s Civil Division. He graduated from Stanford Law in 1998 and clerked for Sixth Circuit Judge Guy Cole Jr. He is 46.

Pennsylvania’s Republican Senator Pat Toomey released a statement praising Phipps’s nomination. A reporter tweeted that Democratic Pa. Senator Bob Casey said he will withhold his blue slip and has “significant concerns about Judge Phipps’ judicial and constitutional philosophy,” but another report said Casey supports the nomination, and he hasn’t posted a statement on his website or tweeted one. So Casey’s position remains unclear. But his opposition would be unlikely to matter regardless, as Judge Paul Matey’s recent confirmation despite the opposition of both N.J. senators illustrated.

Materials from Phipps’s 2018 district nomination:

  • Senate Judiciary questionnaire
  • Follow-up written responses
  • Hearing video—introductory remarks at 1:52:50, substantive answers at 2:03:55 (rule of law), 2:14:02 (Brown v. Board correctness), and 2:18:50 (implicit bias)
  • a post on Vetting Room blog concluding that his record was “fairly noncontroversial” and correctly predicting a painless confirmation.

To me, the striking thing about his 2018 written and oral responses was how non-ideological his record appears. Many of Trump’s judicial nominees have strong movement-conservative credentials, but Phipps does not. His paper trail is not extensive and far from incendiary (like “An Approach to Preparing Fact Witnesses for Deposition Testimony”). He has never been a Federalist Society member. The circuit judge he clerked for was nominated by President Clinton and is viewed as a liberal. He knocked on doors in 2000 and 2001 for two local political candidates who appear to be Republicans. He did several landlord-tenant cases pro bono, presumably on the tenants’ side. He spent a decade and a half in the Civil Division. He teaches admin law as an adjunct at Duquesne.

He appeared for the government in a number of controversial cases while at DOJ. For example, he defended HUD against a major housing-discrimination class action suit in Baltimore. During the Obama administration he defended the Air Force against a challenge to the “Don’t Ask, Don’t Tell” policy brought by an 18-year-veteran flight nurse discharged for “homosexual conduct.” And in 2017 he represented the Trump administration in litigation challenging its denial of access to abortion to a 17-year-old held at a government facility for immigrant children.

One point of particular Third Circuit interest: Phipps was heavily involved in the litigation over sports gambling in New Jersey on the government’s side. According to his questionnaire, he briefed the case on both appeal rounds and also drafted the brief in opposition to certiorari and a merits-stage amicus brief in the Supreme Court. There Supreme Court’s conservatives ended up rejecting the government’s (and the Third Circuit en banc majority’s) position.

From everything I’ve seen so far, Judge Phipps appears mainstream and qualified. While I believe that nominating a man for this opening is a mistake, I also believe that, viewed on his own merits, Phipps is a sound choice.

New opinion

SHI Partners v. Commissioner of Internal Revenue—tax—affirmance—Greenberg

The Third Circuit affirmed today in a tax case. The court rejected an Administrative Procedures Act challenge to the relevant tax regulations because it was based on hindsight, relying on the IRS’s practice since adopting the regulations. More than that I hesitate to venture on a first read.

Joining Greenberg were Ambro and Restrepo. Arguing counsel were Thomas Dupree of Gibson Dunn for the taxpayer and Judith Hagley for the government.

Sign up now for Third Circuit en banc bench & bar reception next Wednesday

The Third Circuit Bar Association is hosting a free reception for judges and lawyers at the circuit courthouse next Wednesday, May 15. Register now to be there!

The Third Circuit’s spring en banc sitting is that morning, so judges and lawyers from across the circuit will be in town. 3CBA’s president, Andy Simpson, is flying up from the Virgin Islands to be there. The en banc reception that 3CBA put on last year was a wonderful event. I was a wreck that night because I had a big oral argument the next day, and even I enjoyed it. I counted nine Third Circuit judges who attended.

The reception is Wednesday May 15 from 5 to 6 in the Hastie Library of the James Byrne U.S. Courthouse. Beer, wine, and food by DiBruno Brothers will be served.

There’s no charge to attend, and you don’t need to be a 3CBA member, but please RSVP by May 9 with an email to

If you’re able to make it, please join us.

The last 10 Third Circuit judges nominated by GOP presidents have been men; the next one will be, too.

Last December, I wrote, “I believe the executive branch does real and lasting damage to the judicial branch when it creates wild demographic distortions like the gender imbalance now afflicting the Third Circuit.” I titled that post, “The next Third Circuit nominee must be a woman.” But on Friday, President Trump announced that the next Third Circuit nominee will be a man.

On his own merits, District Judge Peter Phipps looks to me like a sound choice, and in other posts I’ll lay out why. This post isn’t about Judge Phipps, it is about how Republican presidents have harmed the Third Circuit by appointing only men.

Once Judge Phipps is confirmed, as I expect him to be, the 14 active Third Circuit judges will be 12 men and 2 women. How did that that happen? The answer is not complicated.

President Bill Clinton successfully appointed 6 Third Circuit judges. Their genders:

    • Male
    • Male
    • Female
    • Female
    • Male
    • Male

President George W. Bush appointed 7:

    • Male
    • Male
    • Male
    • Male
    • Male
    • Male
    • Male

President Barack Obama appointed 5:

    • Male
    • Male
    • Female
    • Female
    • Male

And President Donald Trump has appointed 3 so far, with 1 pending:

    • Male
    • Male
    • Male
    • Male (pending)

If we assume that Judge Phipps will be confirmed, then, recent presidents of each party will have added the same number of judges to the Third Circuit, 11 each. Democrats added 4 women. Republicans, indefensibly, added 0.

Sometimes both sides are equally to blame. Sometimes, not.

Peter Phipps to be nominated for Third Circuit

President Trump today announced his intent to nominate District Judge Peter Phipps to fill the last remaining vacancy on the Third Circuit. Judge Phipps has served on the U.S. District Court for the Western District of Pennsylvania since last October. Here is a link to download his district-court Senate Judiciary questionnaire. This nomination is to fill the opening created when Judge Thomas Vanaskie took senior status before retiring from the court.

The White House announcement isn’t posted on its website yet but a screen capture is in this tweet:

Two immediate observations: not from MDPA, and not a woman.

Two new opinions

U.S. v. Vailey-Snyder—criminal—affirmance—Hardiman

The Third Circuit today held that an inmate’s placement in administrative segregation while under investigation for a new crime does not trigger his constitutional or statutory rights to a speedy trial. The right is triggered by arrest or indictment, and placing an inmate in administrative segregation during investigation of an offense is neither. The court also rejected the defendant’s vouching and cumulative-error claims.

Joining Hardiman were Scirica and Rendell. Arguing counsel were Todd Hinkley for the government and Brandon Reish of Stroudsburg, Pa. (the caption has a typo, “Strousburg”) for the defendant.


U.S. ex rel. Doe v. Heart Solution (revised op.)— civil — partial affirmance — Roth

The Third Circuit issued a revised opinion today in this case. The original opinion, now vacated, is here.

The vacated conclusion read:

For the foregoing reasons, we will affirm the District Court’s judgment on the issue of Ms. Patel’s liability under the FCA for false claims submitted to Medicare for unsupervised neurological tests and on the issue of Ms. Patel’s common law fraud. We will reverse the remaining portions of the District Court’s summary judgment orders and remand this case to the District Court for further proceedings consistent with this opinion.

The new conclusion reads:

For the foregoing reasons, we will affirm the District Court’s judgment on the issue of Ms. Patel’s liability and damages under the FCA for false claims submitted to Medicare for unsupervised neurological tests and on the issue of Ms. Patel’s common law fraud. We will reverse the portions of the District Court’s summary judgment orders with respect to Heart Solution and with respect to Nita Patel’s liability and damages for the remaining common law claims and remand this case to the District Court for further proceedings consistent with this opinion.

Joining Roth were Jordan and Stearns D.Mass by designation. Arguing counsel were Mark Cedrone of Cedrone & Mancano for the woman and the company and Charles Graybow of the N.J. U.S. Attorney’s office for the government.

Two new opinions, including a split-panel win for class suing Penn over retirement-plan fees

Sweda v. Univ. of Pa. — ERISA — partial reversal — Fisher

The Third Circuit revived an ERISA class-action against the University of Pennsylvania today, reversing the district court’s dismissal of claims for breach of fiduciary duty by paying excessive recordkeeping and investment fees. The court joined the Eighth Circuit in holding that Twombly‘s pleading rule for antitrust cases does not apply to ERISA fiduciary-breach claims.

Joining Fisher was Shwartz; Roth dissented, spotlighting her concern that the university will face undue pressure to settle given the large amount at stake. Arguing counsel were Michael Wolff of Missouri for the class and former Hutchinson clerk Brian Ortelere of Morgan Lewis for Penn.


Tundo v. County of Passaic — civil rights — affirmance — Bibas

The Third Circuit held that New Jersey’s civil-service commission did not violate the due process rights of two laid-off corrections officers when it removed them from its rehire lists, even though the two had a reasonable expectation of staying on them, because the commission had left itself broad discretion to remove them from the lists.

Joining Bibas were Chagares and Sánchez EDPA by designation. The case was decided without oral argument.

Court issues updated Greenspan opinion—and shows its work

Today the Third Circuit re-issued a recent opinion with minor changes.

The court partially granted the government’s motion to amend the criminal-appeal opinion it issued in United States v. Greenspan. My summary of the old opinion is here, the order partially granting the motion is here, the new opinion is here. The order helpfully describes the changes as “minor.” Among the changes, the new opinion adds a citation to the standard for reviewing a defendant’s failure to raise cumulative error on direct review, p.29, and removes one reference to sandbagging, p.3.

Of little interest to most, but of great interest to close court followers, was the panel’s identification in its order of the pages on which the changes occurred. I’ve mentioned here past instances where the court hasn’t done this. I believe providing this sort of information is an excellent practice and am rooting for future panels to follow suit.

Third Circuit hiring director of workplace relations

The Third Circuit has posted a job announcement for a new position in the circuit executive’s office for a director of workplace relations. A link to the announcement is here.

The position will “provide[] confidential and impartial assistance to judiciary employees and judges on workplace conduct matters” and “coordinate[] the implementation of employment dispute resolution policies for all courts within the Third Circuit.” Among its duties will be to

Serve as the primary expert on workplace conduct and related issues for the Third Circuit Judicial Council, Court of Appeals, District Courts, Probation and Pretrial Offices, Federal Public Defenders, and the Judicial Council Workplace Conduct Committee. Research, analyze alternatives, prepare appropriate recommendations, and identify courses of action as appropriate.

This new position was created in the wake of the Federal Judiciary Workplace Conduct Working Group’s recommendations for reform after sexual misconduct accusations against Ninth Circuit Judge Alex Kozinski received national coverage. The Third Circuit is one of several circuits creating such a position.

The workplace-relations-director position will remain open until filled, but applications received before May 27 will get priority.

Two new opinions

In re: NFL Players’ Concussion Injury Litig. (RD Legal Funding LLC) — civil — partial reversal — Smith

After approval of the NFL concussion-suit settlement, some former players and family members sold their recovery rights to litigation funders in exchange for immediate payment. The district court voided these deals to protect the class members from predatory lending practices, and three of the litigation funders appealed. Today, the Third Circuit reversed in part. While commending the district court’s “very able” handling of the case, the court held that the court went too far in voiding the cash advance deals in their entirety. The court dismissed some of the appeals on timeliness grounds and another on appellate-jurisdictional grounds.

Joining Smith were Chagares and Bibas. Arguing counsel were Samuel Issacharoff of NYU Law School for the class, and (1) Michael Roth of Boies Schiller, (2) Raul Sloezen, and (3) Peter Buckley of Fox Rothschild for the litigation funders.


ADP LLC v. Rafferty — civil — partial reversal — Krause

The Third Circuit today held that, under New Jersey law, an employer’s non-compete agreements were not per se unenforeceable and remanded for the district court to determine whether their enforcement should be limited due to overbreadth. The introduction:

In this appeal, we must determine whether certain restrictive covenants, which high-performing employees enter into as a condition of a stock award, constitute an impermissible restraint on trade under New Jersey law. We conclude that these restrictive covenants are not unenforceable in their entirety because they serve a legitimate business interest, but they may place an undue hardship on employees because they are overbroad. Accordingly, we will remand for the District Court to consider whether and to what extent it is necessary to curtail the restrictive covenants’ scope, which is the approach prescribed by the New Jersey Supreme Court when confronted with overbroad restrictive covenants such as these.

Joining Krause were Hardiman and Bibas. Arguing counsel were Timothy Lowe of McDonald Hopkins for the employer and John Schmidt Jr. of Lindabury McCormick for the former employees.

Chief Judge Smith discusses oral-argument rates, #MeToo in the courts, lousy reply briefs, and more

Third Circuit Chief Judge D. Brooks Smith discussed the state of the circuit yesterday at a CLE program in Philadelphia. The event was put on by the Philadelphia Bar Association. I posted separately here about Chief Judge Smith’s important remarks about judicial independence at the end of the event.

Here are some other highlights from his talk:

  • The federal courts’ caseload has declined since 2008, which he called a “concerning phenomenon.” The Third Circuit’s caseload has dropped since 2014.
  • Specific caseload areas are growing, including health care/pharma and criminal cases from New Jersey, civil cases from Delaware, and, above all, immigration cases.
  • Pro se appeals are a majority of the Third Circuit’s caseload and have been for several years. In 2018, pro se appeals were 56% of the court’s cases.
  • Chief Judge Smith spoke at some length about the circuit’s oral-argument rate and why criticism of that rate as too low is overstated. He noted that few pro se cases are appropriate for oral argument, and that hearing fewer arguments allows the judges to rigorously prepare for the ones they hear. And he observed that the court hears oral argument in over a third (34.6% in 2018) of the cases submitted on the merits, which he characterized as “not a bad rate.”
  • As to argument video, he noted that court upgraded its video cameras, microphones, and audio to reduce feedback (praise be!). They’ve added the ability to focus on individual judges. He expects video posting to increase over time, as some have pointedly urged, and thinks that is a good thing even though he was “no great friend” of video-recording arguments originally. He reported that, in 2017, the circuit posted of video of 7.5% of its arguments, and 8.8% in 2018. Only two videos have been posted from the 95 arguments so far in 2019, but he predicted that will increase.
  • The circuit has been using software that inserts quasi-hyperlinks to cases and other legal authorities for judges reading briefs. He also mentioned software that links to appendix citations, but I’m not clear whether that’s live yet.
  • Chief Judge Smith has worked to get the attention of New Jersey’s senators to the state’s many district court vacancies, which have put D.N.J. in “dire straits,” but “so far without any success.”
  • The next circuit bench–bar conference will be in May of 2020 in Philadelphia.
  • The court held its judges-only conference last fall, which focused on judicial wellness. One aspect discussed was judicial disability, and Chief Judge Smith encouraged lawyers to contact him directly with information about a judge’s misconduct or disability.
  • He tries to keep an eye on cases that are taking particularly long to be decided. If lawyers believe a case is taking inordinately long, he invited them to bring it to his attention. (Asked how long is long enough to contact him about, he quipped, “You’re lawyers, figure it out.”)
  • He spoke at length about the Judiciary Workplace Conduct Working Group, which Circuit Executive Margaret Weigand was a member of. He emphasized attorneys’ ability to report misconduct based on second-hand awareness as well as judges’ duty to report, and described the efforts as a “major step.”
  • Chief Judge Smith was “deeply disturbed” that major news reports had painted a misleading picture about the number of misconduct complaints against judges. He observed that the majority of internal complaints were against non-judges, and that the reports failed to note that the “vast, vast” majority of complaints against judges were brought by disappointed prisoners and pro se litigants.
  • He spoke candidly about the court’s decision to create an award named for Joseph Biden recognizing service to the court: “the courts don’t have many friends,” so the decision was made to recognize “in as conspicuous a way as possible” those who had done a lot for them.
  • Asked for practice tips, he described, “brazenly and shamelessly,” his dim view of reply briefs. Most are repetitive, merely rehashing the opening brief, rarely presenting much that alters the equation in any way. In fact, his normal practice is to read the opening briefs and answer briefs before giving the briefs to his clerks, but, as to reply briefs, he just asks the clerks to read them and let him know if there’s anything in them he needs to know about. Zounds! He jokingly thanked the audience for letting him “vent on a subject very near and dear to my heart.”

Kudos to the Philadelphia Bar Association for putting on this valuable event.

Third Circuit’s Chief Judge expresses alarm at President Trump’s attacks on judges

Near the end of his absorbing talk yesterday in Philadelphia on the state of the Third Circuit, Chief Judge D. Brooks Smith was asked by a lawyer in the audience about the current partisan climate, attacks on judicial independence, and what the federal judiciary can do about it.

Chief Judge Smith responded that he had expected this question and was glad for it. He observed that he needed to be “circumspect” in addressing political or partisan matters, but that, at this point in his life, he “felt obligated to speak candidly.” The room went quiet.

Partisan rhetoric, he said, was at a level and volume we had not seen in our lifetime. While there had been other divisive times in our nation’s history, “this is definitely one of them.” He said there have been “attacks on the judiciary and on judges,” including “by the President of the United States. I find this alarming.”

He recalled Chief Justice of the United States John Roberts’s remarks on judicial independence last year, noting that the Chief Justice had “felt impelled” to make an “unusual public response.”

Chief Judge Smith explained that he was not worried that the attacks on the judiciary would affect him or his colleagues, but that he did worry about the public impact. He joked that he lived in the Alabama-in-between part of Pennsylvania, and he said he listened and heard a lot. When judges are criticized by true believers in one political figure or another, the criticisms are “congenial to the political figure they’re aligned with,” not based on an understanding of how the process works. He went on:

And that’s what we’re about [here he tapped the table for emphasis] is process. If our system is about anything it’s about process, and fair process. And we don’t [tap] have Obama judges and we don’t [tap] have Bush judges, and the people I work with don’t consider themselves that, I don’t consider them that.

Finally, if I can end on this pointed note. Why the hell would I take a life-tenured job guaranteed to earn me less over all those years than I could otherwise make, and I did take a substantial cut many years ago to become a judge, to pledge my allegiance to a political figure? What. Fun. Is. That? The fun of judging is the intellectual challenge and the independence to do what you think is right, what you hope is right legally.

Quite something. I went to this talk expecting nerdy circuit intel, which we also got and which I’ll summarize in a separate post.

I wasn’t expecting history.

Two new opinions

League of Women Voters of Pa. v. Commonwealth of Pa. — civil / attorney fees — partial affirmance — Scirica

Last year, the Pennsylvania Supreme threw out the state’s Republican-drawn congressional districts, ruling that they amounted to a partisan gerrymander that violated the Pennsylvania Constitution. One brief chapter in that litigation took place in federal court. After an unfavorable state-court ruling, GOP State Senate President Pro Tem Joe Scarnati removed the case to federal court, but then, on the eve of a federal-court hearing on the removal, moved to remand it back to state court, asserting a misunderstanding.

After the case returned to state court, the plaintiffs sought attorney’s fees and costs for opposing removal. The district court granted the motion, ruling that Senator Scarnati had no basis for believing that removal was proper and awarding about half the fees requested. The district court held Senator Scarnati personally liable for the fee award, per the plaintiffs’ request to avoid making taxpayers foot the bill.

Today, the Third Circuit rejected Senator Scarnati’s challenges to the decision to award fees and to the fee calculation based on a $400 hourly rate, but it held that the Senator, sued only in his official capacity, could not be held liable in his personal capacity, at least without a finding of bad faith. Sorry, taxpayers.

Joining Scirica were Ambro and Rendell. Arguing counsel were Matthew Haverstick of Kleinbard for the senator and Elisabeth Theodore of Arnold & Porter for the plaintiffs.


Hildebrand v. Allegheny County — employment — reversal — Fisher

The Third Circuit today vacated the dismissal with prejudice of an age-discrimination suit for failure to prosecute, concluding that the district court improperly assumed that the party was responsible for the delay, failed to consider the merits of his claim, and failed to honor the circuit’s established preference for decisions on the merits. The plaintiff was a fired Allegheny County DA’s Office detective who alleged that the office had a practice of forcing out older detectives.

Joining Fisher were Smith and McKee. Arguing counsel were Marjorie Crist of the Crist Law Center for the plaintiff and Charles Porter Jr. of Brucker and Porter for the employer.

New opinions — two Third Circuit rulings recognizing limits on religious-based discrimination

Fulton v. City of Philadelphia — civil — affirmance — Ambro

Catholic Social Services sued the City of Philadelphia because it wanted to continue to receive foster referrals from the city but it refused to comply with the city’s general anti-discrimination requirements because it refused to work with same-sex couples wanting to be foster parents. The Catholic foster agency claimed that the First Amendment’s Free Exercise, Establishment, and Free Speech clauses required the city to renew its contract with them despite the groups unwillingness to comply with the city’s anti-discrimination laws. The district court ruled that Catholic Social Services was not entitled to a preliminary injunction, and today the Third Circuit affirmed, holding, “It has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”

The heart of the opinion:

CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.

The Catholic foster agency’s discrimination first came to light in this news story last year by Julia Terruso in the Philadelphia Inquirer.

[Disclosure: I assisted counsel for intervor-appellees by serving as an argument-moot judge.]

Joining Ambro were Scirica and Rendell. Arguing counsel were Lori Windham of the Becket Fund for Religious Liberty for Catholic Social Services, Jane Lovitch Istvan for the city, and Leslie Cooper of the ACLU for intervenor-appellees.


Curto v. A Country Place Condominium Assoc. — civil  — reversal — Ambro

A condominium community with a large Orthodox Jewish population had a swimming pool. To accommodate Orthodox principles, it aside over 60 hours a week for mens-only or women’s only swimming, leaving only 25 hours a week for mixed-gender swimming. Condo residents sued, alleging that the gender-segregation of the pool violated the Fair Housing Act. The district court ruled in favor of the condo, but today the Third Circuit reversed, holding that the pool segregation violates the FHA because it reserves most of the after-work hours to men.

Joining Ambro were Bibas and Fuentes. Fuentes also concurred to express skepticism that merely allocating the evening hours more evenly would save the condo’s sex-segregation policy. Arguing counsel were Sandra Park of ACLU for the plaintiffs and Angela Maione Costigan of Costigan & Costigan for the condominium association.

Chief Judge to discuss “State of the Third Circuit” in Philadelphia next week

Third Circuit Chief Judge D. Brooks Smith will present next Thursday, April 25, at a CLE program on the state of the Third Circuit. The program is co-hosted by the Federal Court and Appellate Court committees of the Philadelphia Bar Association. From the event announcement:

Chief Judge D. Brooks Smith will address the state of the United States Court of Appeals for the Third Circuit. The Chief Judge will discuss challenges faced by the Third Circuit including:

  • An increase in oral arguments
  • Innovations in the Third Circuit – video posting of arguments, etc.
  • Vacancies and the new judges
  • The lingering effects of the government shutdown
  • Expectations of the court for practitioners

Chief Judge Smith will also provide an update on newly-issued conduct rules promulgated in the wake of the Kozinski “scandal” of 2018.

This looks like an outstanding event. I’m registered for it, and I hope to see lots of my fellow Third Circuit enthusiasts there. Details and registration at this link.

My thanks to Howard Bashman for letting me know about it.

New 3CBA newsletter welcomes Porter, honors Vanaskie

The April 2019 issue of the Third Circuit Bar Association newsletter On Appeal is out, and available online at this link. The new issue features a welcome-to-the-court profile of new Judge David Porter and a warm tribute to recently retired Judge Thomas Vanaskie by one of his former law clerks.

Also in this issue:

  • an insightful summary of US ex rel. Doe v. Heart Solution,
  • advice (from me) for first oral arguments,
  • new 3CBA leader Andrew Simpson’s first President’s Note,
  • an acknowledgment of the tragic death of the son of Circuit Executive Margaret Wiegand, noting that donations may be made in his honor to the Wingman Foundation at this link, and, finally,
  • a note that the next Third Circuit Bench-Bar Conference will be in Philadelphia next spring.


New opinion — Third Circuit affirms doctor’s criminal conviction despite multiple errors [updated]

U.S. v. Greenspan — criminal — affirmance — Bibas

UPDATE: on May 1 the court granted the government’s motion to amend the original opinion and issued a new opinion. The link above is the new opinion; the prior one is here.

“Sometimes, the only plausible explanation for a lab’s stream of payments to a doctor is cash for blood.” Quite an opening to today’s Third Circuit opinion affirming a doctor’s convictions for fraud and taking bribes and kickbacks. In an opinion that’s a model of lucidity, the court found that the district court committed multiple errors—limiting an advice-of-counsel defense by suggesting that the defendant bore the burden of proof and excluding evidence in support of the defense, and at sentencing asking the defense counsel rather than the defendant himself whether he wished to allocute—but affirmed due in part to overwhelming evidence of guilt.

A practice point for criminal defense practitioners to note: the court noted but did not answer the question of whether cumulative error is a discrete claim that defendants must raise in district court or forfeit on appeal. [On reflection, I believe I was wrong that the opinion was discussing whether cumulative error must be raised in district court; instead, I now believe, it was talking about whether it must be preserved on appeal or forfeit on appeal. Thanks to a helpful reader for flagging this.]

Joining Bibas were Hardiman and Krause. Arguing counsel were Peter Goldberger for the defendant and Steven Sanders of the N.J. Office of the U.S. Attorney for the government. The opinion observed that defense counsel “thoroughly examined the extensive record and skillfully highlighted the errors and potential errors,” adding, “We are grateful for their expert assistance in doing so.”



Circuit Executive’s son killed in military helicopter crash

I’m sad beyond words to report that Circuit Executive Margaret Wiegand’s son passed away recently.

Marine Corps Major Matthew Wiegand was killed in a helicopter training accident on March 30 in Arizona. A news story describing the tragic accident is here; the cause remains under investigation. Major Wiegand, who was 34, held the highest qualifications in the AH-1Z Viper helicopter he was piloting. Pennsylvania Governor Tom Wolf has ordered Commonwealth flags to be flown at half-mast to honor him.

Funeral services will be this Wednesday, April 17, at 11 a.m. at Abington Presbyterian Church, 1082 Old York Rd., Abington, Pa. He will be buried with full military honors at Arlington National Cemetary in August.

Cards may be sent to Margaret Wiegand at the Court’s address. Contributions in Major Wiegand’s memory may be made to the Wingman Foundation, 10915 Via Brescia, Unit 909, San Diego, CA 92129.

Update: here is the obituary that ran in Sunday’s Philadelphia Inquirer.

CA3blog turns 5

Five years ago this week, I posted my first CA3blog post. (It was a quote about writing.) That was 1,095 nerdy blog posts ago. The composition of the Third Circuit has changed quite a lot in those five years, adding five new judges and losing too many to retirement, inactive status, or death. The Chief Judgeship passed from Judge McKee to Chief Judge Smith.

In the beginning, the blog was spectacularly obscure, naturally, but over time it’s been fortunate enough to attract a readership far beyond what I dreamed when I began. I’m grateful for that.

My Third Circuit–focused law practice has grown over those five years, too (I suspect the blog has helped there), to the point where I’ve toyed with the idea of scaling my blogging way back. We’ll see. Without a doubt, one of the great joys of doing this blog has been the opportunity it’s given me to connect with terrific lawyers around the circuit, and it’s hard to imagine giving that up.

I’m proud of my work on the blog, my various clumsy missteps and appalling typos notwithstanding. I’m particularly proud that it’s given me a platform to speak up against what I’ve seen as unfair attacks on judges and judicial nominees, who often can’t speak up for themselves. I firmly believe that’s a responsibility for all lawyers, and, in these times, an urgent one. If sometimes that’s seen as sucking up to the black robes, so be it. And I like to think I’ve been a useful voice for promoting better appellate advocacy and increased awareness of the Third Circuit’s important work.

Okay, enough navel gazing. Five years, egads. Thanks for reading!

Judge Barry’s retirement: media round-up [updated]

Third Circuit Judge Maryanne Trump Barry’s retirement in February, first reported by the New York Times earlier this week, has sparked yet another round of news coverage of the intensely private jurist.

Among them:

I love Goldberger’s quote in the Law360 article:

“She would consistently ask sharp, difficult, well-considered questions of both sides at argument, often based on the most extraordinary knowledge of key details of the record,” he said. “You absolutely had to know your case to contend with Judge Barry at argument. I appreciated that ability she had very much.”

(That reminds me of this early CA3blog post about an oral argument before a panel that included Judge Barry, entitled “The bench of fire.”)

And I’ll close with Chief Judge Smith’s statement quoted in the same article:

“Judge Barry was a very hard-working jurist with a sharp mind, keen instincts and a quick wit,” he said. “We all have been extremely fortunate to have Judge Barry as a colleague and friend. Judge Barry is a judicial giant, and everyone she has touched is a beneficiary of her extraordinary service.”

Judge Barry retired, ending inquiry [updated]

The New York Times reported today that Maryanne Trump Barry, the president’s sister, retired in February as a Third Circuit judge. Her retirement terminated a Second Circuit Judicial Council inquiry into her role in reported Trump-family “dubious tax schemes during the 1990s, including instances of outright fraud.”

Trump became a federal judge in 1983, and served on the Third Circuit from 1999 through last month. She assumed senior status in 2011 and took inactive status in 2017 shortly after President Trump’s inauguration.

From today’s report:

In a letter dated Feb. 1, a court official notified the four individuals who had filed the complaints that the investigation was “receiving the full attention” of a judicial conduct council. Ten days later, Judge Barry filed her retirement papers.


Following confidentiality requirements, Judge Barry’s name does not appear on the order ending the investigation or the correspondence with the complainants. The order identifies the judge in question as a senior inactive judge, about whom complaints were filed in October 2018. Under court rules, all complaints are reviewed by a judge, and those with an allegation of misconduct or disability are generally referred to a panel of judges for investigation.

“The complaints allege, on the basis of a news article, that the then-inactive senior circuit judge may have committed misconduct relating to tax and financial transactions,” says the order, dated April 1.

This is a sad end to the judicial career of a judge who was widely respected and warmly admired throughout her time on the bench.


UPDATE: Larry Neumeister and Maryclaire Dale have this strong follow-up story for AP, featuring statements from two of Judge Barry’s fellow Third Circuit judges:

Chief Judge D. Brooks Smith of the 3rd U.S. Circuit Court of Appeals in Philadelphia released a statement calling Barry a “judicial giant” whose 36 years as a judge in the Philadelphia federal courts were “beyond exemplary.”

“Judge Barry was a very hard working jurist with a sharp mind, keen instincts, and a quick wit. She was a role model for women in the law, and she took that responsibility seriously,” Smith said.

Judge Theodore McKee, another of Barry’s 3rd Circuit’s colleagues, told The Associated Press that Barry was a meticulous judge who protected the court’s reputation, and to the extent the complaints “may have cast aspersions on that, I know she would have been very concerned.”


New opinion — Third Circuit issues revised panel opinion in Delaware courts appeal

Adams v. Governor of Delaware (amended)–civil–partial reversal–Fuentes

The Third Circuit today granted panel rehearing, vacated its original panel opinion in the case striking down Delaware’s requirement that its judges be Democrats or Republicans, and issued a new panel opinion. The order granting panel rehearing stated in a footnote, ” As the merits panel has vacated the prior opinion and judgment, action is not required by the en banc court. Judges Jordan and Bibas have voted for rehearing en banc.”

What changed in the amended opinion? The new opinion itself does not say, but the changes I notice are:

  • a corrected footnote 16,
  • a new footnote 32 discussing standing and severability, and
  • a new section starting on page 35 concluding that the political-affiliation requirement is not severable.

The rest of the opinion, including the three-judge concurrence, appears unchanged; here is my prior summary:

The Delaware Constitution sets out a unique method for selecting state-court judges: the Governor appoints them (based on recommendations from nominating commissions, and without legislative involvement) subject to a requirement that the judges of each court contain a balance of Democrats and Republicans. For example, ” three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.” The goal was to create a bipartisan state judiciary, but one effect was to exclude candidates who aren’t members of either of the two major parties.

A Delaware lawyer who is registered as an Independent challenged the political-affiliation requirement as a violation of his First Amendment rights. The district court denied his challenge, ruling that restricting judgeship eligibility based on political affiliation was allowed because judges qualify as policymakers. Today the Third Circuit reversed, holding that judicial officers, whether appointed or elected, are not policymakers. In so holding, the court split with the Sixth and Seventh Circuits. The court also rejected the governor’s argument that the state’s interest in political balance supports its requirement, holding that even if the interest qualifies as vital the rule is not narrowly tailored to meet it. The court also rejected the Governor’s challenge to standing.

Judge McKee concurred, joined (unusually) by both of the other judges on the panel, emphasizing that the Delaware judiciary is highly regarded and expressing confidence that the state can preserve its esteemed legal culture without the current political-affiliation requirement.

Joining Fuentes were McKee and Restrepo. Arguing counsel were David McBride of Young Conaway for the challenger and David Finger of Finger & Slanina for the governor.

UPDATE: according to this post on Ballot Access News, the court denied en banc rehearing on May 7 by a vote of 9-4, with Judges Jordan, Hardiman, Krause, and Bibas voting to grant.

New opinion — a divided panel splits from a sister circuit on waiver

In re: Asbestos Prods. Liability Litig. (Schroeder) — civil — reversal — Smith

The Third Circuit today held that asbestos-litigation defendants waived their personal-jurisdiction defense and that the district court’s ruling to the contrary was an abuse of discretion. The defendants asserted personal jurisdiction as a defense at the outset, but they implicitly waived the defense by, among other things, asking the court for certain rulings before deciding whether to waive jurisdiction and objecting to transfer to a court with jurisdiction. In so holding, the court expressly split with the Sixth Circuit. Only in asbestos litigation is it not surprising when the opinion ends, ” Barring any additional preliminary matters, these 30-year-old cases should at last proceed to adjudication on the merit.”

Joining Smith was McKee; Fisher dissented, vibrantly. Between the dissent and the circuit split, I suspect there’s a bit of battling ahead before any proceeding to adjudication actually transpires. Arguing counsel were Louis Bograd of Motley Rice for the plaintiffs and Harold Henderson of Thompson Hine for the defendants.

New opinion — Third Circuit reissues opinion to clarify elements/means analysis

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

In a decision reissued upon granting the appellant’s motion for panel rehearing, the Third Circuit again rejected a criminal defendant’s Fourth Amendment challenge to his conviction and his challenges to his sentencing as a career offender based on prior NJ convictions for second-degree robbery as crimes of violence.

While the new opinion does not indicate what changes it made, the changes appear to focus on elaborating on why the court concluded that New Jersey’s robbery statute set out alternative elements rather than means. I notice a new sentence on page 15 (beginning “‘At a trial, they are what ….”) and three new paragraphs on pages 16 and 17 (from “By contrast, in Mathis” through “list elements, not means.”)

Joining Hardiman are Krause and Bibas. Arguing counsel were Leticia Olivera of the NJ FPD for the defendant and Richard Ramsay of the NJ USAO for the government.

New opinion — Third Circuit decides a big case on drug-quantity aggregation

U.S. v. Rowe — criminal — reversal — Fisher

It is a crime to distribute, or to possess with intent to distribute, illegal drugs, and the distribution or possession of larger quantities triggers mandatory minimum sentences. For heroin, distribution or possession of 100 grams or more means a 5-year mandatory minimum, and 1000 grams means a 10-year mandatory minimum.

But how are those drug quantities calculated? Suppose a defendant acquires 600 grams of heroin, sells it all at once, then does it again. Are the two quantities added together, 600+600=1200, such that the defendant gets the 1000-gram 10-year mandatory? And does the answer depend on whether the crime was distribution (not a continuing offense) or possession (a continuing offense)?

Drug crimes are the most common federal crimes, so the answers to those questions matter a lot to lots of criminal defendants.

Today, in a major criminal-appeal ruling, the Third Circuit vacated a defendant’s drug conviction, holding that convictions and their resulting mandatory minimum sentences under 21 U.S.C. § 841(b)(1) must be based on discrete distributions or possessions that exceed the drug-quantity thresholds, not a series of smaller quantities aggregated to meet the quantity threshold.

The distribution holding is important in the Middle District of Pennsylvania, where aggregation of sale quantities to trigger mandatory minimums has been a longstanding outlier practice. The possession holding will apply more broadly. The key passage: “possession of 1000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1000 grams.”

The court vacated the defendant’s conviction and remanded for resentencing for distribution and possession of 100 grams with the government barred from offering new drug-quantity evidence on remand. (The district court had calculated the defendant’s sentence under the Sentencing Guidelines based on over 10 kilograms, relying on evidence that had been excluded at trial and not introduced at sentencing, which on appeal the the government conceded was error.)

Joining Fisher were Smith and McKee. Arguing counsel were Peter Goldberger for the defendant and Stephen Cerutti II of the MDPA US Attorney’s office for the government.

This was already Goldberger’s second major Third Circuit win of 2019, following Piasecki; not surprisingly, Goldberger recently was honored by a publication based on peer voting as lawyer of the year for appellate practice in eastern Pennsylvania. His co-counsel on the case was Goldberger’s long-term senior associate and former Third Circuit staff attorney Pamela Wilk.

New opinion — employer loses case by waiving its winning argument

Robinson v. First State Community Action Agency — civil — affirmance — Fuentes

The defendant in an employment-disability suit waived a meritorious legal argument by failing to assert it prior to appeal after accepting the plaintiff’s erroneous case theory, encouraging the court to adopt an erroneous jury instruction, and failing to raise the error in post-trial briefing. Because the error was waived, the court rejected the defendant’s argument that the court should review its jury-instruction claim for plain error.

The waived error? In district court, the plaintiff admitted that she could not prove that she was actually is dyslexic, but she alleged that her employer violated the Americans with Disabilities Act when it regarded her as dyslexic yet refused to accommodate her perceived disability. But a 2008 amendment to the ADA made clear that so-called regarded-as plaintiffs are not entitled to accommodation.

The court’s willingness to find waiver of a winning legal argument is correct in my view, but I still wonder why it has refused to do that in some other cases, most recently Bistrian.

Joining Fuentes were Krause and Cowen. The appeal was decided without oral argument.


Juvenile-sentencing appeal argued en banc last month put on hold

Last month the Third Circuit held en banc oral argument in United States v. Grant, an appeal presenting the issue of whether a de facto life sentence can be unconstitutional under Miller v. Alabama‘s rule barring mandatory life sentences for juveniles. Audio of the en banc argument is here.

The Third Circuit has now put Grant on hold for a related Supreme Court case. On March 18, the Supreme Court granted certiorari in Mathena v. Malvo  to examine the scope of Miller and whether it was expanded by the subsequent decision in Montgomery v. Louisiana. Four days after the Mathena cert grant, the Third Circuit put Grant on hold C.A.V. pending the decision in that case. (C.A.V. is an acronym for the Latin phrase curia advisari vult, literally “the court wishes to be advised.”)

Thanks to a reader for alerting me.

Get thee to the courtroom

This week I got to see two Third Circuit oral argument days. I had an argument of my own on the end of the second day, so the first day I was there to learn, the second to anxiously wait. The panel both days was composed of Judges Shwartz, Krause, and Bibas.

As I sat watching, I was reminded that, while we may all agree that briefing is where most Third Circuit cases are won or lost, there is nevertheless something satisfying about watching terrific advocates argue their cases. When a lawyer puts in the work to distill her position to its essence and to respond to the tough questions with relentless clarity, it is nerdy-exhilarating to behold.

Two arguments in particular that I saw this week brought this home for me. The first was a criminal appeal about whether Hobbs Act robbery convictions are crimes of violence under the Sentencing Guidelines. The advocates were Brett Sweitzer for the defendant and Robert Zauzmer for the government. They’re two of the circuit’s very best, so I knew it was going to be great, and great it was. A link to the audio is here.

The other was a civil appeal about whether Johnson & Johnson could force a plaintiff into arbitration using an arbitration agreement between the plaintiff and a different company. It featured two lawyers from Washington D.C. who, I confess, I hadn’t heard of before, Todd Kim of Reed Smith and Karla Gilbride of Public Justice. Here is the link to the audio. Kim (an Obama nominee the D.C. Court of Appeals) was excellent, and, my goodness, Gilbride was stellar.

I often encourage lawyers to listen to argument audio, or watch video, to learn from each other. I do it a lot. We’re all busy, and sitting in front of your computer is a whole lot more convenient than busting out the suit and heading over to the courthouse.

But the arguments that I remember most vividly—the arguments I’ve learned the most from—are the ones I’ve been there for. I’m glad to have been reminded of that this week.

New opinion — continuing-violation doctrine doesn’t apply to probation-violation detainer by another jurisdiction

Randall v. City of Phila. Law Dep’t — civil rights — affirmance — Bibas

A man was arrested and prosecuted in Philadelphia; as a result of that prosecution, other jurisdictions filed detainers for violating his probation. When Philly dropped the charges , the man was released into the other jurisdictions’ custody and was held another four months. Later, the man sued Philadelphia for malicious prosecution. His suit was timely filed if the statute of limitations started when the other jurisdictions released him, but untimely if it started when Philadelphia released him; stated differently, it was timely if the continuing-violation doctrine applied to his custody by non-parties on the resulting detainers, untimely if it didn’t. Yesterday, the Third Circuit affirmed dismissal of his suit as untimely, holding that the continuing-violation doctrine did not apply.

Joining Bibas were Smith and Chagares. The case was decided without oral argument.

Judge Matey receives his commission

The Third Circuit’s newest member, Judge Paul Matey, took his judicial oath and received his commission yesterday. (He is not yet listed on the court’s website but will be added soon.)  Judge Matey will serve with the judge for whom he clerked, Judge Robert Cowen.

My thanks to Twitter user @fedjudges for alerting me to the news.

With Judge Matey joining the court, the Third Circuit has one vacancy remaining, the one created when Judge Vanaskie took senior status and then retired. No nomination for that vacancy has been announced.


New opinion on the collateral estoppel use of a prior criminal proceeding on a subsequent civil suit [updated]

U.S. ex rel. Doe v. Heart Solution — civil — partial affirmance — Roth

UPDATE: the court vacated this opinion and issued a new one on May 3.

To what extent do admissions made during a criminal conviction for fraud dictate the result of a subsequent civil suit based on the same fraud? For the individual who pled guilty, the Third Circuit held today, the district court was correct to grant summary judgment against her by treating her plea colloquy as admissions of all the elements of civil liability. But for the company that she owned, which was not party to the prior criminal case, the Third Circuit held that the district court erred in granting summary judgment using the same collateral estoppel theory. “[T]he District Court failed to dissect the issues that were determined in the criminal case from those that were not.”

Joining Roth were Jordan and Stearns D.Mass. by designation. Arguing counsel were Mark Cedrone of Cedrone & Mancano for the woman and the company and Charles Graybow of the N.J. U.S. Attorney’s office for the government.

Paul Matey is confirmed to the Third Circuit

The Senate just confirmed Paul Matey’s nomination to the Third Circuit. The announced vote was 54 to 45. Congratulations, almost-Judge Matey. He receives his commission and officially becomes a judge when he takes his judicial oath, which normally occurs a few days after confirmation.

New opinion

Komis v. Secretary U.S. Dep’t of Labor — employment — affirmance — Scirica

In an appeal from a jury verdict against a former OSHA employee who sued the Secretary of Labor for creating a hostile work environment in retaliation for her filing more than 60 (!) workplace complaints, the Third Circuit held that any error in instructing the jury on the standard for retaliatory-hostile-workplace-environment claims involving federal employees was harmless because the former employee couldn’t prevail under the standard she sought. Along the way, the court held that federal employees may bring Title VII retaliation claims.

Three and a half years went by between the oral argument and today’s opinion, which is unheard-of in the Third Circuit. The opinion doesn’t mention it, and I haven’t looked the the docket, but my offhand guess is that the appeal was stayed for a Supreme Court case or two that ended up not providing an answer.

Joining Scirica were Greenaway and Roth. Arguing counsel were Mark Sheffer of Birchrunville, Pa., for the former employee and Richard Mentzinger, Jr., for the government.

The Third Circuit is about to be the first federal appellate court flipped by Trump, but that’s not nearly as significant as it sounds

With Paul Matey on track to be confirmed as the Third Circuit’s newest judge this afternoon, there’s been a flurry of recent coverage (most recently this story by Patrick Gregory for Bloomberg Law) about how the Third Circuit is the first of the circuits to flip from a Democratic majority to a Republican one. I want to briefly explain why I believe this flip is more symbolic than meaningful.

Let’s first get clear about what “flip” they’re referring to. The Third Circuit has 14 seats, which means that at full strength it has 14 active judges plus an undefined number of senior judges. When President Trump took office, it had 12 active judges. Of these 12, 7 were nominated by Democratic presidents (Judges McKee, Ambro, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo) and 5 by Republican presidents (Chief Judge Smith and Judges Fisher, Chagares, Jordan, and Hardiman). Since then, Judge Fisher took senior status and Judge Vanaskie retired, while Judges Bibas and Porter have been confirmed and Matey is about to be. Once Matey joins the court, then, there will be 6 active judges nominated by Democratic presidents and 7 by Republicans, with 1 opening left.

Those changes, I suspect, mean the Third Circuit has become somewhat more conservative since Trump took office. That is, going from [Fisher + Vanaskie + 2 vacant seats] to [Bibas + Porter + Matey + 1 vacant seat + senior Fisher] probably moves the court to the right overall.

That said, I believe the actual impact of that shift will be modest, and that it will have little to do with the so-called flip in majority control. I believe this for a number of reasons:

  • only a minuscule number of cases are decided en banc;
  • since 2010, a grand total of four Third Circuit en banc cases were decided by one- or two-vote majorities, and the conservative position prevailed in by far the most high-profile of them, the Binderup Second Amendment case;
  • the Third Circuit has a passionately collegial identity that makes it disinclined to decide ideologically charged cases by bare en banc majorities;
  • almost all circuit appeals are decided by three-judge panels, so there’s a large element of chance in whether any particular panel reflects the court’s overall balance;
  • panels are composed of active, senior, and visiting judges, and the Third Circuit has eight senior judges regularly sitting;
  • 6 of the court’s 8 sitting senior judges were nominated by Republican presidents, versus only 2 nominated by Democrats;
  • of the three nominated by President Trump, only Judge Porter had a notably ideological paper trail, and
  • most importantly, the party of the nominating president is a substantially less-reliable predictor of circuit judges’ voting than it is of Supreme Court justices’ voting.

A flip in the Supreme Court’s majority would be a big deal. All nine justices decide every case, so a majority flip could alter the outcome of every close one. But circuit courts function entirely differently, so an active-judge-majority flip will change the outcome in a vastly smaller proportion of its cases, and it will do so demonstrably and visibly even less.

To be clear, I’m not suggesting that commentators spotlighting the Third Circuit’s flip are wrong or disingenuous. Politically, it encapsulates the rapidly changing composition of the federal judiciary under President Trump and Senate Majority Leader McConnell. In my view, reporting and commenting on the Third Circuit’s flip is appropriate. But, for lawyers practicing in the Third Circuit, it is important to realize that the flip means little for them.

The Third Circuit has been a centrist court for decades, and I don’t expect this flip to change that.

Matey Senate confirmation vote scheduled for tomorrow afternoon

The Senate this evening invoked cloture on the Third Circuit nomination of Paul Matey, by a vote of 55 to 44.

Matey’s Senate confirmation vote is scheduled for tomorrow afternoon at 2:30.

New opinion

Kamal v. J. Crew — civil — reversal — Scirica

A federal statute bars retailers from printing more than the last five digits of credit card numbers on receipts. A J. Crew consumer discovered that his receipts included the first six numbers of his credit card, so he sued. The district court dismissed with prejudice for lack of standing due to lack of concrete injury. The Third Circuit affirmed the dismissal under Spokeo and its progeny, joining the majority in a circuit split, but held that it was error to dismiss with prejudice because the district court lacked jurisdiction.

Joining Scirica were Chagares and Rendell. Arguing counsel were Marvin Frank of New York for the consumer and Andrew Bunn, formerly of DLA Piper, for J. Crew.

Collegiality and credibility, Hemingway and statements regarding oral argument: two Third Circuit judges share their advocacy insights

Third Circuit Chief Judge D. Brooks Smith and Judge Stephanos Bibas shared guidance on appellate advocacy yesterday, and I feel sorry for anyone who wasn’t there.

The two judges presented at a CLE program at the courthouse co-sponsored by the Third Circuit Bar Association and the Philadelphia chapter of the Federal Bar Association. [Disclosure: along with Nilam Sanghvi and Rick Haggerty, I was one of the event’s organizers.]

A few of the points that stood out to me:

  • Both judges emphasized the Third Circuit’s collegiality. Judge Bibas said he realized upon joining the court that it’s reputation was “not just advertising,” it indeed is an “intensely collegial place.” Chief Judge Smith described the court’s collegiality as “extraordinary” and something he believed in with “almost religious intensity.” Any lawyer familiar with the Third Circuit knows it lacks the interpersonal fireworks of some other courts, but hearing the two judges talking about it yesterday drove home for me in a new way how central its collegiality is to the Third Circuit’s identity.
  • Chief Judge Smith described how he “enjoy[s] a really good brief.” (Every lawyer in the room secretly knew it was their briefs he had in mind.) He said he wakes up early, puts on coffee, and settles in with his dog to read briefs, and when it’s an excellent brief he “genuinely enjoy[s] it.” He wryly observed that he prefers briefs whose sentence structure is modeled more on Hemingway than Faulkner.
  • Judge Bibas spoke of the importance of repeat players protecting their credibility. He suggested counsel take on their cases’ weaknesses head-on instead of trying to hide them. He also encouraged lawyers to use an understated, respectful tone, honoring the “intense presumption” that people coming to the court offer their arguments in good faith. Later, he observed that lawyers who file briefs with shrill, intemperate language are less likely to get oral argument because the judges are less confident their arguments will assist them.

And a few smaller-bore points:

  • Chief Judge Smith prefers it when lawyers cite state-court sources as authority for what state law is. Citing federal cases for the meaning of state law strikes him as disrespectful to state courts, but he admitted being sure he was an outlier on this point.
  • When he was an advocate, Judge Bibas was a firm believer in oral argument moots, holding five or six of them for one case.
  • Chief Judge Smith mentioned that he does not see briefs that set out arguments why the court should grant oral argument in the case, and said this is something more lawyers could do. He explained that he didn’t mean a boilerplate request for argument, but rather explaining why counsel wants argument, something specific to the case or issue.

I’m sure my scribbled notes don’t let me do full justice to the judges’ comments, but it was a terrific program. The judges’ panel was ably moderated by Nancy Winkelman, formerly a top appellate practitioner at Schnader and currently interim head of the Philadelphia District Attorney’s office’s law department.

In addition to the two judges’ presentation, the program also included an attorney panel that was two-thirds dynamite, with certified superstars Elise Bruhl of the Philadelphia Law Department and Nilam Sanghvi of the Pa. Innocence Project, plus me. The lawyer panel was moderated gracefully by Chip Becker.

This program was the third in a continuing series of advocacy CLEs that the Third Circuit Bar Association is putting on in locations around the circuit, following similar events last year in Wilmington and Harrisburg. Next up? To be decided.

We’re fortunate in the Third Circuit to have judges who engage with the bar and share their perspectives on how to improve the quality of representation that litigants receive. Lawyers, don’t pass up these real opportunities when they come.

New opinion — Judge Porter’s first precedential opinion

Madar v. U.S. Citizenship & Immigration Svcs. — immigration — affirmance — Porter

The Third Circuit today rejected an immigrant’s argument that he was entitled to citizenship because his father had been a citizen and constructively satisfied the statutory requirements for retaining citizenship. The opinion assumed that the father retained his citizenship but held that any citizenship did not transfer to the son, joining other circuits in refusing to infer an equitable exception to the relevant statutory requirements.

The lucid opinion is the first precedential opinion authored by the Third Circuit’s newest judge, Judge David Porter.

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

New opinion

U.S. v. Ayala — criminal — affirmance — Chagares

Yesterday the Third Circuit affirmed the conviction and 11-year sentence of a Virgin Islands woman who played a supporting role in the gunpoint robbery of a St. Thomas jewelry store. Her defense was that her involvement (securing plane tickets, hotel rooms, and a rental car for the robbers, sitting in the getaway car, and paying the robbers afterward) was the product of duress because she feared for her life and that of her brother at the hands of two violent men who told her to do it.

The court rejected a number of interesting challenges, including that D.V.I. courts lack jurisdiction to hear federal criminal cases and that D.V.I. judges lack authority serve after their 10-year terms have expired. The court rejected the defendant’s argument that certain evidence was erroneously excluded under Federal Rule of Evidence 403, but it noted that it was troubled that the district court did not give its reasoning on the record. Finally, the court upheld the district court’s decision to shackle her during sentencing based on the marshals’ view (the basis for which apparently was not discussed and is anything but obvious to this reader) that there was a security concern.

The court’s opinion presents the facts of the crime and the trial without comment, but, for me at least, it’s hard to read it without wondering whether justice was done here.

Joining Chagares were Hardiman and Restrepo. Arguing counsel were Joseph Diruzzo III of Florida for the defendant and Kim Chisholm for the government.

New opinions — two Speedy Trial Act reversals (!)

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

“This is one of the rare cases in which the Speedy Trial Act … requires that we vacate a conviction and remand for dismissal of the indictment,” begins today’s first opinion.  And “rare” is both true and ironic, because today’s other opinion, issued by a different panel, does the same thing.

Here, with less than three weeks left on the defendant’s Speedy Trial Act clock, the district court continued the trial sua sponte for another two-and-a half months. The Third Circuit held that dismissal was required but left it to the district court to decide first whether re-prosecution would be allowed.

In a concurrence that, unusually, lists two judges as co-authors, Judges Ambro and Greenaway criticized five other circuits’ rulings that defendants can waive Speedy Trial Act claims by failing to seek dismissal on that basis in district court. The concurrence observed that waiver was not an issue here because the government had not raised it its brief or in oral argument.

Joining Ambro were Chagares and Greenaway. Arguing counsel were Jacob Schuman of the EDPA federal defender for the defendant and Michelle Olshefski of the MDPA U.S. Attorney’s office for the government.


U.S. v. Williams — criminal — reversal — Restrepo

The Third Circuit reversed on Speedy Trial Act grounds here, too, but in this case the panel directed the district court to dismiss with prejudice, precluding re-prosecution. The court joined three circuits in splitting with the Second Circuit and holding that “periods of unreasonable delay of more than ten days in the transport of a defendant to the site of a psychological examination conducted in the course of a proceeding to determine a defendant’s mental competency are non-excludable” for Speedy Trial Act purposes.

Joining Restrepo were Chagares (who sat on both panels) and Hardiman. Arguing counsel were Omodare Jupiter of the DVI federal defender for the defendant and Everard Potter of the DVI U.S. Attorney’s office for the government.


Close Third Circuit followers will note that today’s opinions were posted earlier than normal. The Court’s consistent practice is to post the day’s precedential opinions on its website around 12:35 (with rare late-afternoon postings, too), a couple hours after counsel receive them through ECF, but I stumbled upon today’s opinions around 10:30. I assume this earlier posting was a blip rather than a change in procedure, but we’ll see.

New opinion

Piasecki v. Bucks County Court — habeas — reversal — McKee

[Disclosure: as explained below, I assisted Peter Goldberger in representing the petitioner-appellant in this appeal.]

For a federal court to consider a habeas petition, the petitioner must be “in custody” at the time the petition is filed. Past cases have found custody to include parole restrictions, own-recognizance release pending appeal, and community service obligations. Today, the Third Circuit held that the requirements that come with registration under Pennsylvania’s Sex Offender Registration and Notification Act satisfy the habeas custody requirement because SORNA restricts registrants’ physical liberty in various ways, including banning computer internet access and requiring them to appear frequently at a state police barracks, in person. The court distinguished rulings from other Circuits involving other, less-restrictive sex-offender-registry statutes.

In an interesting footnote, the opinion focused more deeply on the condition banning computer internet access and observed that computer and internet bans are common, “Yet it is not at all clear that the judges imposing such sweeping  and unconditional bans appreciate the impact they would have if literally interpreted and enforced,” barring things like using an ATM, having a smartphone, navigating by GPS, or simply driving a late-model car. It noted with a lengthy stringcite that “many courts have struck down statutes or vacated sentences that impose broad bans on computer and internet usage.”

Joining McKee were Ambro and Restrepo. Arguing counsel were Stephen Harris of the Bucks County district attorney’s office for the Commonwealth and me for the petitioner — I had the privilege of arguing in place of Mr. Piasecki’s counsel, Peter Goldberger, who wrote the briefs, because he was out of state attending to a compelling family matter.

Two new opinions

US v. Island — criminal — affirmance — Scirica

A divided Third Circuit panel today answered a question that also has divided the circuits, holding that a criminal defendant’s term of supervised release is tolled while the defendant is absent from supervision as a fugitive. The majority reasoned that the relevant statutory text was silent on the matter and joined the Second, Fourth, and Ninth Circuits against the First.

Judge Rendell dissented, arguing that the text did answer the question and that the majority’s rule will prove burdensome for courts to apply.

Joining Scirica was Ambro, with Rendell dissenting. Arguing counsel were Keith Donoghue of the EDPA federal defenders for the defendant and Bernadette McKeon of the EDPA USAO for the government.


Sköld v. Galderma Labs. — civil — partial reversal — Jordan

The Third Circuit vacated a jury’s verdict in favor of an investor for unjust enrichment in a trademark dispute with a drug company. The investor’s claim was premised on his ownership of the mark, and the court held that the plain terms of the relevant contract gave ownership of the mark to the company. The interpretative issue boiled down to the contract’s use of “hereof and thereof” instead of “hereof or thereof,” and somewhere that contract drafter now feels either euphoric or terrible, depending.  The court also rejected the investor’s claims that he was entitled to directed verdict on other claims.

Joining Jordan was Chagares; Vanaskie had been the third judge on the panel before he retired. Arguing counsel were Bruce Clark of Clark Michie for the investor and Richard Rochford Jr. of New York for the company.


Register now for Effective Third Circuit Advocacy, featuring Chief Judge Smith and Judge Bibas, 3/6 in Philadelphia

Next Wednesday in Philadelphia, Third Circuit Chief Judge D. Brooks Smith and Judge Stephanos Bibas will be the featured presenters at a CLE program entitled Effective Third Circuit Advocacy. The event is co-sponsored by the Third Circuit Bar Association and the Philadelphia chapter of the Federal Bar Association. Registration is open now at this link.

The details:

  • Wednesday, March 6 from 3 to 5 with a wine-and-cheese reception afterwards
  • Ceremonial courtroom (first floor), James Byrne U.S. Courthouse, 601 Market Street
  • 2 hours Pennsylvania substantive CLE credit, approval pending
  • Registration is $25 for members of 3CBA and/or FBA, $50 for non-members. Discounted registration is available for law students and public-sector and public-interest attorneys.

Besides Chief Judge Smith and Judge Bibas, also presenting will be Chip Becker of Kline & Specter, Elise Bruhl of the Philadelphia Law Department, Nilam Sanghvi of the Pennsylvania Innocence Project, Nancy Winkelman of the Philadelphia District Attorney’s office, and me.

This is the third in a series of advocacy CLE events that 3CBA has co-sponsored. The first two events—in Wilmington, Delaware, featuring Judges Jordan and Roth, and in Harrisburg, Pennsylvania, featuring Judges Vanaskie and Krause—were both fantastic. If you’re able to attend this one, you’d be foolish not to.

CLE registration is capped, so register now.

New opinion — FTC’s suit against drug maker was filed too late [updated]

FTC v. Shire Viropharma — civil — affirmance — Smith

The Federal Trade Commission brought a federal action against a drug company, alleging that the drug company wrongfully delayed approval of generic competition to its lucrative drug through a string of meritless FDA filings. The FTC brought the action over 4 years after the company’s challenged actions, under a statute that permits the FTC to sue a company that “is violating” or “is about to violate” the law. Today, the Third Circuit held that this statutory provision does not authorize suit based on a long-past action plus a reasonable likelihood of recurrence, affirming judgment in favor of the company.

Here’s the (exceptional, in my view) introduction:

Shire ViroPharma, Inc. … manufactured and marketed the lucrative drug Vancocin, which is indicated to treat a life-threatening gastrointestinal infection. After Shire got wind that manufacturers were considering making generic equivalents to Vancocin, it inundated the United States Food and Drug Administration (“FDA”) with allegedly meritless filings to delay approval of those generics. The FDA eventually rejected Shire’s filings and approved generic equivalents to Vancocin, but the filings nonetheless resulted in a high cost to consumers—Shire had delayed generic entry for years and reaped hundreds of millions of dollars in profits. Nearly five years later—and after Shire had divested itself of Vancocin—the Federal Trade Commission (“FTC”) filed suit against Shire in the United States District Court for the District of Delaware under Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b). The FTC sought a permanent injunction and restitution, alleging that Shire’s petitioning was an unfair method of competition prohibited by the Act. Shire moved to dismiss, arguing that the FTC’s allegations of long-past petitioning activity failed to satisfy Section 13(b)’s requirement that Shire “is violating” or “is about to violate” the law. The District Court agreed and dismissed the case.

On appeal, the FTC urges us to adopt a more expansive view of Section 13(b). According to the FTC, the phrase “is violating, or is about to violate” in Section 13(b) is satisfied by showing a past violation and a reasonable likelihood of recurrent future conduct. We reject the FTC’s invitation to stretch Section 13(b) beyond its clear text. The FTC admits that Shire is not currently violating the law. And the complaint fails to allege that Shire is about to violate the law. We will therefore affirm the District Court’s judgment.

And the notable concluding paragraph:

The FTC’s improper use of Section 13(b) to pursue long-past petitioning has the potential to discourage lawful petitioning activity by interested citizens—activity that is protected by the First Amendment. Because we affirm the District Court’s judgment dismissing the complaint, we need not address the issue further but suggest that the FTC be mindful of such First Amendment concerns.

Joining Smith were McKee and Fisher. Arguing counsel were Matthew Hoffman for the FTC and Steven Reed of Morgan Lewis for the drug company.

Update: here is a provocative analysis by Debevoise, entitled “The Third Circuit Sharply Curtails the FTC’s Preferred Enforcement Power.” Highlights:

On February 25, 2019, the United States Court of Appeals for the Third Circuit upset
decades of Federal Trade Commission (FTC) practice by significantly limiting when the
FTC can bring competition and consumer protection enforcement actions in federal



The FTC could seek a rehearing or a rehearing en banc from the Third Circuit, and may
ultimately seek Supreme Court review. But given Shire’s bad facts and a strong
possibility that the current Supreme Court would agree with the Third Circuit’s “plain
language” analysis, the FTC may not want to risk extending this ruling beyond the
Third Circuit. The FTC may instead prefer to seek legislative intervention. Many FTC
reform bills have been introduced in Congress in recent years, and this decision could
lead to the introduction of additional bills in the 116th Congress.

Section 13(b) has been a cornerstone of the FTC’s consumer protection and competition
enforcement efforts. This decision will have immediate, far-reaching ramifications on
that strategy’s use in the Third Circuit for both antitrust and consumer protection
(including false advertising and privacy/cybersecurity) matters.

New opinion — debt purchasers who outsource collections are subject to FDCPA

Barbato v. Greystone Alliance — civil — affirmance — Krause

The Fair Debt Collection Practices Act aims to protect consumers by regulating the actions of “debt collectors,” defined to include those “in any business the principal purpose of which is the collection of any debts.”  A company that purchased charged-off consumer debt and then contracted out to another company the job of actually haranguing the consumers, argued that it was not subject to the FDCPA because it was not a debt collector. Today, the Third Circuit disagreed, relying mainly on past circuit precedent and the statute’s text.

Grammarians will rejoice at this footnote:

At both oral argument and in its supplemental briefing, Crown argued that the word “collection” is a verb. It is not. It is a noun. See Collection, Webster’s Third at 444 (denoting with the abbreviation “n” that the word being defined is a noun).

Joining Krause were Hardiman and Bibas. Arguing counsel were Matthew Rosenkoff of Atlanta for the debt collectors and Daniel Edelman of Chicago for the consumer.

New opinion

In re: Titus — bankruptcy — affirmance — Ambro

The opening paragraph:

When his old law firm broke its lease, attorney Paul Titus was on the hook for millions of dollars in unpaid commercial rent. The landlord tried to recover the rent by targeting the wages Mr. Titus was earning at his new firm. But Mr. Titus’s wages never passed through his hands alone; instead, they were deposited by his new firm directly into a bank account owned by both Mr. Titus and his wife as tenants by the entireties.

Not the first paragraph Mr. Titus was hoping for, I suspect. It continues:

Eventually, Mr. Titus was forced into bankruptcy and the landlord’s claim became a claim of the bankruptcy trustee. Now, after two trials in the Bankruptcy Court and two appeals to the District Court, we reach three conclusions. First, Mr. and Mrs. Titus are liable for a fraudulent transfer. When the wages of an insolvent spouse are deposited into a couple’s entireties account, both spouses are fraudulent transferees. Second, as for the precise measure of the Tituses’ liability, the bankruptcy trustee waived any challenge to the method used by previous courts to calculate fraudulent-transfer liability. Going forward, however, we clarify how future courts should measure liability when faced with an entireties account like the Tituses’ — an account into which deposits consist of both (fraudulent) wages and (non-fraudulent) other sources, and from which cash is spent on both (permissible) household necessities and (impermissible) other expenditures.1 Until now, a trustee somehow had to show that wage deposits were impermissibly spent on non-necessary expenditures, even though wage and nonwage deposits had become commingled in the account. Rather than expect a trustee to trace the untraceable, future courts should generally presume that wage deposits were spent on non-necessary expenditures in proportion to the overall share of wages in the account as a whole. Third, in evaluating the Bankruptcy Court’s application of the method in play at the time of its decision, we perceive no clear error. Thus we affirm.

In the footnote, the opinion noted that Judge Shwartz did not join the opinion’s discussion of the pro rata approach because it was unnecessary given the court’s finding of waiver and that instead choosing the liability-calculation method should be left to trial judge.

This case is one of many that arose out of the 1999 dissolution of the Pittsburgh firm Titus & McConomy. Third Circuit Judge Hardiman was a partner there from 1996 to 1999 and was a party to at least one of those other cases. In 2016, another Titus & McConomy appeal was decided by three non-Third Circuit judges, presumably because the entire court had recused.

Joining Ambro were Shwartz (with the exception noted) and Fuentes. Arguing counsel were Douglas Campbell of Campbell & Levine for the lawyer and his wife and Neal Levin of Chicago for the bankruptcy trustee.

Two new opinions

Bryan v. Gov’t of Virgin Islands — civil — affirmance — Hardiman

The Third Circuit today rejected various challenges by a Virgin Islands government employee to a territorial law designed to encourage more-senior employees to retire by making them pay 3% more into the retirement system than other employees have to.

Joining Hardiman were Chagares and Restrepo. Arguing counsel were Richard Rouco of Alabama for the employee and Su-Layne Walker for the government.


Contreras Ayabar v. Secretary DHS — immigration — affirmance — Ambro

A provision of the Immigration and Nationality Act authorizes the government to grant permanent-resident status to a child of an adult permanent resident. Here, a mother applied for that status for her son when he was still a minor, but while the application was pending he turned 21, and for that reason the DHS denied it. Today, the Third Circuit rejected the mother’s and son’s challenge to this denial, holding that age eligible must be assessed the time of the agency’s action, not when the application is filed, in light of the unambiguous language of the applicable statute.

Joining Ambro were Scirica and Rendell. Arguing counsel were Benjamin Zhu of Davis Polk for the mother and son and Alexander Halaska for the government.

Third Circuit rules against Trump administration in major sanctuary-cities appeal

City of Philadelphia v. Attorney General of the United States — civil — partial affirmance — Rendell

In a stinging loss for the Trump administration that they’ll surely ask the Supreme Court to review, the Third Circuit today rejected the Attorney General’s effort to deny federal grant money to Philadelphia in an effort to coerce the city into help federal law-enforcement “detain[] and remov[e] aliens upon their release from local criminal custody.” The court held that the AG lacked statutory authority to set policy conditions on the grant money:

Underlying this question, and potentially complicating its resolution, is the stark contrast in the priorities of the City and those of the Executive Branch regarding immigration policy. In resolving the discrete legal question before us, however, we make no judgment as to the merits of this policy dispute. Rather, our role is more confined, and our focus is only on the legality of the particular action before us.

Concluding that Congress did not grant the Attorney General this authority, we hold that the Challenged Conditions were unlawfully imposed.

Today’s ruling was a disaster for the Trump administration’s attack on sanctuary cities. The only sliver of good news for the administration was that the panel vacated the district court’s requirement for a judicial warrant to transfer a “criminal alien” to federal custody, holding that this injunction went beyond the bounds of the complaint.

My crystal ball says that the government is certain to ask the Supreme Court to grant certiorari, and that they’re quite unlikely to have the votes for rehearing en banc.

Joining Rendell were Ambro and Scirica. Arguing counsel were Neal Katyal of Hogan Lovells for the city and Katherine Allen for the government. Video of the oral argument—the best Third Circuit oral argument I’ve ever seen—is in my argument-compilation post here.

Two new opinions

Dessouki v. Secretary — immigration — affirmance — Bibas

The Third Circuit denied an immigrant’s petition for review today. The applicable statute offers a path to citizenship to immigrants whose custodial parent becomes a naturalized citizen if there has been “a legal separation” of his parents. But here the immigrant’s parents never married, and the court held that without marriage there cannot be a legal separation.

Joining Bibas were Greenaway and Fuentes. Arguing counsel were Douglas Grannan of Philadelphia for the immigrant and Elizabeth Fitzgerald-Sambou for the government.


McKinney v. Univ. of Pittsburgh — civil — reversal — Krause

The Third Circuit today held that a university faculty contract provision guaranteeing faculty an annual salary increase does not give them a property interest in the their salary not being reduced.

Joining Krause were Hardiman and Bibas. Arguing counsel were Kim Watterson of Reed Smith for the university and Sean Ruppert of Kraemer Manes for the professor. The opinion also acknowledged an “insightful and well-researched” amicus brief on behalf of other universities by Shannon Farmer and Burt Rublin of Ballard Spahr.


Two new opinions, including Workman

Workman v. Superintendent — habeas corpus — reversal — Fuentes

In an amended opinion, the Third Circuit today held that a habeas petitioner had shown that his trial counsel provided ineffective assistance of counsel by failing to mount a defense and, while that issue was procedurally defaulted, his post-conviction counsel’s ineffectiveness excused the default. [As I’ve disclosed in prior posts about this case, I did some minor consulting for petitioner’s counsel.]

In the court’s original opinion (and again in an amended one that it also later withdrew) the panel had presumed prejudice from trial counsel’s errors under US v. Cronic, but today the court held that the petitioner had shown prejudice under Strickland v. Washington. I wrote that the prior amended opinion was “puzzling” and that “something seems not quite right here,” and urged readers to stay tuned, so today’s ruling isn’t surprising and strikes me as substantially sounder than the previous ones. So, all’s well that ends well.

Joining Fuentes were Ambro and Restrepo. Arguing counsel were Marshall Dayan of the WDPA FD for the petitioner and Catherine Kiefer of the Philly DA’s office for the superintendent.


Patterson v. Pa. Liquor Control Board — civil — affirmance — Restrepo

The Third Circuit held that the Pennsylvania Liquor Control Board is an arm of the state (arm of the Commonwealth?) entitled to Eleventh Amendment sovereign immunity, affirming dismissal of a former employee’s civil rights suit against it.

Joining Restrepo were Greenaway and Bibas. Arguing counsel were Charles Sipio of Kolman Ely for the former employee and Claudia Tesoro of the PA Attorney General’s office for the LCB.

In Workman, may the third time be the charm

A Third Circuit panel this week granted panel rehearing—for a second time—in Workman v. Superintendent, a case in which the panel originally granted relief for ineffective assistance of counsel, but did so by presuming that counsel’s error prejudiced the defendant instead of requiring a prejudice showing (in habeas-speak, by applying Cronic not Strickland). I explained matters in this post after the second opinion. As I noted there, the second opinion was perplexing in light of the first rehearing petition, so the panel’s decision to grant rehearing again is not as surprising as it might seem.

[I’ll disclose again that I’ve done some minor consulting for counsel for the petitioner.]

There may be an impulse to view panel-rehearing grants in a negative light, but, as I’ve written here before, that’s not how I see them. I believe the panel rehearing serves a valuable function and I applaud the court’s willingness to take a second (or third!) look where needed to be confident of getting it right.

New opinion

US v. Garner–criminal–affirmance–Ambro

Today, the Third Circuit affirmed a defendant’s convictions for bank robbery and related crimes, rejecting his challenge to the sufficiency of the evidence. The court joined other circuits in holding that a defendant cannot be criminally liable for conspiring with a government informant.

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

Two new opinions, including an emphatic sentencing reversal

US v. Chapman–criminal–reversal–Restrepo

In a calmly scalding opinion, the Third Circuit today vacated a criminal sentence and remanded for resentencing by a different district judge because the sentencing judge refused to postpone sentencing despite knowing that the defendant’s lawyer had failed to notify the man beforehand of his sentencing hearing, which deprived the man of the chance to offer witnesses and letters seeking sentencing leniency.

When an opinion chooses to quote the district judge’s “pique” and “irritation,” when it says “it is plain the District Court erred” and it “unfairly” deprived the defendant’s rights, when it describes a position the sentencing judge rejected as “manifestly reasonable,” when it states that “the District Court improperly compromised the appearance of fairness” and describes this “appearance of unfairness” as “especially stark,” and when it orders resentencing by a different judge, I’d say the court is sending a stern message.

I’d guess that the court is aware that the district judge in question has been mentioned (here, for example) as a potential nominee to fill Judge Vanaskie’s seat, and also that a 2017 non-precedential CA3 opinion also was critical of a ruling by same district judge. If those guesses are right, today’s opinion is all the more remarkable.

Joining Restrepo was McKee; Vanaskie had been the third judge on the panel prior to his retirement. Arguing counsel were Candace Cain of the WDPA defender for the defendant and George Rocktashel of the MDPA AUSAs for the government.


US v. Daniels–criminal–affirmance–Cowen

The Third Circuit today affirmed a defendant’s career-offender sentence, holding that attempted drug dealing qualifies as a serious drug offense under the ACCA and that “the scope of attempt and accomplice liablity under Pennsylvania law is coextensive with the meaning of those terms under federal law.”

Joining Cowen were Krause and Fuentes. The case was decided without oral argument.

New opinion — Third Circuit strikes down Delaware’s requirement that state judges be Democrats or Republicans

Adams v. Governor of Delaware–civil–partial reversal–Fuentes

UPDATE: the Third Circuit vacated this opinion on panel rehearing and issued a new one, link here.

The Delaware Constitution sets out a unique method for selecting state-court judges: the Governor appoints them (based on recommendations from nominating commissions, and without legislative involvement) subject to a requirement that the judges of each court contain a balance of Democrats and Republicans. For example, ” three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.” The goal was to create a bipartisan state judiciary, but one effect was to exclude candidates who aren’t members of either of the two major parties.

A Delaware lawyer who is registered as an Independent challenged the political-affiliation requirement as a violation of his First Amendment rights. The district court denied his challenge, ruling that restricting judgeship eligibility based on political affiliation was allowed because judges qualify as policymakers. Today the Third Circuit reversed, holding that judicial officers, whether appointed or elected, are not policymakers. In so holding, the court split with the Sixth and Seventh Circuits. The court also rejected the governor’s argument that the state’s interest in political balance supports its requirement, holding that even if the interest qualifies as vital the rule is not narrowly tailored to meet it. The court also rejected the Governor’s challenge to standing.

Judge McKee concurred, joined (unusually) by both of the other judges on the panel, emphasizing that the Delaware judiciary is highly regarded and expressing confidence that the state can preserve its esteemed legal culture without the current political-affiliation requirement.

Joining Fuentes were McKee and Restrepo. Arguing counsel were David McBride of Young Conaway for the challenger and David Finger of Finger & Slanina for the governor.

Two new opinions

Roman v. City of Newark — civil rights — partial reversal — Ambro

A man was arrested for possession of illegal drugs, but the charges were dropped when the search ruled unlawful. The man then sued the officers and the city for violating his civil rights. The district court dismissed his claims, but today a divided Third Circuit majority reversed in part, holding that the man’s claims against the city based on a custom of unconstitutional searches and failure to train were adequately pled.

Joining Ambro was Jordan, who also authored a short concurrence. Hardiman dissented, faulting the majority for mentioning facts not alleged in the complaint and disagreeing with the majority as to the custom-of-searches (but not the failure-to-train) theory, and strenuously. Arguing counsel were Justin Santagata of Kaufman Semararo for the plaintiff and Wilson Antoine for the defendants.


Bedoya v. American Eagle Express — civil — affirmance — Shwartz

The Third Circuit rejected an employer’s argument that a federal statute pre-empted New Jersey law in defining employees and independent contractors, allowing a suit by delivery drivers alleging that the employer misclassified as contractors to proceed.

Joining Shwartz were Greenaway and Bibas. Arguing counsel were Harold Lichten for the plaintiffs, Joseph DiBlasio of Jackson Lewis for the employer, and Christopher Weber for New Jersey as amicus.

My advice to lawyers preparing for their first-ever oral argument

Oral arguments are like childbirth: it may feel wonderful once it’s over, but before and during it’s mostly hard as hell. If you’re preparing for your first oral argument, you may be feeling all kinds of un-wonderful: overwhelmed, anxious, and increasingly certain you’re about to be exposed to the world as a rare dullard. And alive as never before to each and every path to losing your case.

But hey: don’t worry. That’s normal! Healthy, even. Plenty of successful appellate advocates feel that way before every single argument. I do. The worst oral argument I ever gave was the one I felt most comfortable about beforehand. In his indispensable book on appellate oral advocacy, appellate star David Frederick says it thus:

A second wave of apprehension usually occurs after the first moot court when thoughtful colleagues have asked many incisive questions that the advocate—who thought he was prepared—does not know how to answer. While having all of those questions out on the table should become a source of great reassurance, nothing can quite match the feeling of helplessness that arises when question after question comes hurtling in without a coherent legal response. That wave then usually produces a serious emotional trough, as the weaknesses of the advocate’s side of the argument appear glaringly obvious and the strengths of the other side’s theory much more apparent than when the briefs were filed. If the advocate does not go through at least one of these emotional troughs during the preparation process, he probably is not applying a sufficiently objective analysis to his own case.

I urge you to take that last sentence to heart.

Anyway, if you’re preparing for your first oral argument, I have a few suggestions. Think of this as, “I already committed all the blunders so you don’t have to.” (Back in 2017, I wrote a post with advice for appellate lawyers used to arguing in other courts on what’s different about the Third Circuit—link here. You may find that post helpful too, but that one was aimed at experienced appellate folks and this one is written with newbies in mind.)

My advice:

  • Learn from others. Go and watch an argument session in person. Watch video of arguments. Listen to the audio of these arguments by some first-rate advocates. You’ll be amazed how much you’ll pick up just by paying attention to what works and what doesn’t.
  • Don’t burn out beforehand. Oral argument is like a marathon race where you’re only timed for the final 400 meters. Many novice advocates panic early, achieve peak mastery well before the argument, and arrive at the courtroom worn out, tired of the sound of their own voice, and fuzzy on the finer points. Even if you find out way in advance that argument has been granted, keep in mind that intense focus in the days beforehand is far more important than starting early. And get as much sleep as you can the several days before the argument, since most of us sleep like crap the night before.
  • As you prepare, focus on anticipating hard questions and preparing direct, clear answers. You’re not giving an interrupted speech, you’re having a formal, stylized conversation with three people you’re trying to persuade. During the course of the argument, the judges will do you a spectacular favor: they’ll tell you exactly what reasons might keep them from ruling in your client’s favor. And your #1 job—truly, more important than remembering to pick your nose as few times as possible while at the podium—is to hear the concerns the judges are raising and then to give your most persuasive responses to them. Not to wriggle past the tough questions so that you can get back to what you want to say. And you can only do that if you put in the work beforehand to figure out what those questions are likely to be and how best to answer them.
  • Prepare multiple layers of responses. While it’s important to get your best points out directly and clearly, it’s also important to have a back-up plan. Sometimes that point you thought was rock-solid instead goes over like a lead balloon. When judges aren’t satisfied with your initial response and keep pushing, you need to be ready to give them something more and/or something different. They’re telling you they’re not persuaded on this point yet, so here you need to go deeper, which means you need to have multiple layers of responses prepared.

Here’s what I mean. Say one of your main points is that trial counsel’s failure to object to a trial error was deficient performance, and your strongest argument is that the error should have been obvious because it was based on a Supreme Court case decided the year before. So you make that point in a couple sentences. If the panel doesn’t push back, great, you go on to your next main point. But if the panel does push back, you’re ready. In your pocket you’ve got other good arguments on this point—say, why that Supreme Court case isn’t distinguishable, how other circuits have ruled the way you want, how the lawyer’s other blunders show that this error wasn’t intentional, and how the other side implicitly conceded the point in district court. If the judges keep pressing you, you’re able to keep advancing the ball.

If you didn’t prepare multiple layers of responses on your key points, then when your first punch doesn’t land you’re stuck repeating yourself like a broken robot, mumbling something about standing on your briefs, hollering “If you say so, Judge!,” or lamely changing the subject while your face goes full red beet and the judges try to sneak each other knowing eye-rolls.

  • Do at least one moot. Lots of lawyers (including some I respect highly) don’t do moots before circuit arguments, but I believe moots (that is, practice arguments with other lawyers playing the role of the judges peppering you with questions) are essential for all of us not named Charles Alan Wright. More to the point, I believe if you don’t moot your first oral argument, then you deserve every one of the the-law-clerks-in-the-courtroom-are-wincing moments you’re so very likely to produce. I suggest two moots, the first one three to five days before your argument and the second the morning before.
  • Focus on nailing the basics. When a judge speaks, you don’t. When a judge asks a question, answer it directly and immediately: “Yes, because …” not, “I’ll get to that next …” When you don’t know an answer, say so. Breathe. And, perhaps most importantly, treat opposing counsel (and the district court judge, if you’re the appellant) with absolute professionalism: explain why their position is wrong, not why they’re bad people out to distort the record and hoodwink the court.
  • At least get their names right. Mispronouncing a judge’s name may irritate the judge and surely will earn you the wrath and scorn of the judge’s clerks. Here are the ones I’ve heard mangled:
    • Chagares — shuh GARR iss (rhymes with ‘the Harris,’ not ‘the Norris’)
    • Krause—rhymes with ‘house’
    • Restrepo—ruh STREPP oh
    • Bibas—BEE biss
    • Scirica — suh RICK uh
    • Cowen — first syllable rhymes with ‘now,’ not ‘go’
    • Nygaard — NYE gard (first syllable rhymes with ‘hi’)

For more comprehensive coverage of Third Circuit practice, there’s a detailed Third Circuit practice manual and a shorter (and free) online practice guide put out by the circuit bar association. Both are outstanding. The governing rules (federal appellate rules, local appellate rules, and circuit internal operating procedures) are all linked here. For authoritative answers to specific procedure questions, the circuit clerk’s office is a lifesaver.

Oral argument is hard, and preparing for your first one can feel overwhelming. But if you put in the work and commit to getting the fundamentals right, you’ll give the judges and your client what they need, and you might even make it out alive.

Two new opinions

Jean Louis v. AG — immigration — affirmance — Bibas

Judge Bibas has been a judge for only about a year, but his opinion-writing style already is instantly recognizable. Radical clarity, with lots of short sentences. I can’t think of any other circuit judge who could have written this introduction:

A non-lawyer “immigration expert” advised Dieuland Jean Louis that he could miss his asylum hearing without consequence. I App. A6-7. So he did. But the “immigration expert” was wrong—and an immigration judge relied on Jean Louis’s absence to order his removal in absentia. Id.

Jean Louis now contends that we should reopen that order because the non-lawyer’s advice qualifies as an exceptional circumstance. But that is not the law. Exceptional circumstances must be grave and beyond the applicant’s control. And holding the hearing without Jean Louis did not violate due process because he had the opportunity to attend. He chose not to.
So we will deny his petition for review.

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


FTC v. Penn State Hershey Medical Ctr. — civil — affirmance — Nygaard

The Third Circuit today rejected Pennsylvania’s argument that it was entitled to attorney’s fees for its work in derailing a hospital merger, concluding that the basis for the state’s win was a federal statutory provision that did not provide for attorney-fee recovery. The opinion ran a brisk 18 paragraphs, which is less than a paragraph per lawyer listed in the caption.

Joining Nygaard were Shwartz and Rendell. Arguing counsel were Howard Hopkirk for Pa. and William Coglianese of Jones Day for the hospitals.

Two new opinions

G.S. v. Rose Tree Media School Dist. — civil / education — affirmance — per curiam

Today the Third Circuit granted a motion to publish a previously unpublished opinion. Interestingly, the motion was filed by amici, not by a party. The non-published opinion had been authored by Judge Vanaskie, who has since retired, so the motion to publish was granted by the other two panel members and the opinion was issued as an unsigned per curiam.

The appeal arose from a suit brought under the McKinney-Vento Homeless Assistance Act, in which a boy and his parents alleged that a school district’s refusal to enroll the boy was illegal. In a previous suit between the parents and the district, the school had agreed to pay for the boy to go to a different school for one year, and the parents agreed to waive prior and also agreed to make no future McKinney-Vento claims. The court today held that the future-claim waiver was unenforceable for lack of consideration in light of a recitation of consideration in the settlement agreement which only referred to the prior claims, which strikes me as debatable. The court also rejected the district’s argument that the student was not homeless because he was living along with his family in his grandparents’ house for several years, given statutory language included as homeless children living doubled up with no durational limit.

The panel was Ambro and Jordan (and originally included Vanaskie). Arguing counsel were Katherine Meehan of Raffaele Puppio for the district and Michael Raffaele of Kershenbaum & Raffaele for the student and parents.


US v. Goldstein — criminal — affirmance — Roth

The Third Circuit held that the government’s warrantless use of cell-site location data violated the Fourth Amendment, reversing its prior ruling on that point in this case (captioned US v. Stimler, link here) in light of the Supreme Court’s intervening ruling in Carpenter. But the court affirmed the conviction again, this time under the good-faith exception.

Roth was joined by Chagares and Restrepo. Arguing counsel were Aidan O’Connor of Pashman Stein for the defendant and Norman Gross and Glenn Moramarco for the government.

Another stealth amended opinion

Late Friday the court issued an amended panel opinion in US v. Hird, the appeal from the Philadelphia traffic-court convictions that it originally decided last August, link here. Unfortunately, the amended opinion does not indicate what it changed in the 53-page opinion (the outcome appears the same), nor does it indicate in the opinion’s caption that it’s an amended opinion. Again. (The letter “a” at the end of the opinion pdf’s filename is the only giveaway in the opinion itself.)

New opinions

US v. Wright — criminal — affirmance — Shwartz

Today, a fractured Third Circuit panel reversed a district court’s order dismissing a criminal indictment with prejudice after two trials and two hung juries. The lead opinion held that the district court lacked inherent authority to dismiss the indictment absent misconduct or “any prejudice beyond the general anxiety and inconvenience of facing a retrial.”

Judge McKee concurred in the judgment and Judge Nygaard dissented. Although both separate opinions refer to Judge Shwartz’s opinion as a majority opinion, at first blush I read Judge McKee’s rationale as narrower than Judge Shwartz’s so it is unclear to me which opinion will be viewed as binding precedent by future panels.

The case originally was decided yesterday without Judge McKee’s opinion.

Arguing counsel were Donovan Cocas of the WDPA US Attorney’s office for the government and Renee Pietropaolo of the WDPA federal defenders for the defendant.

Bryan v. US — civil rights — affirmance — Roth

After customs agents searched the cabins of three cruise-shop passengers, the passengers brought Bivens claims against the agents and the a claim under the Federal Tort Claims Act against the government. Today, the Third Circuit affirmed summary judgment against the passengers, holding that the Bivens claims were barred by qualified immunity and the FTCA claim by the discretionary-function exception.

Joining Roth were Krause and Fisher. Arguing counsel were David Nissman of McChain Nissman for the passengers and Samantha Chaifetz for the government.

New opinion — Third Circuit vacates some of former Congressman Fattah’s convictions, but reinstates others [updated]

US v. Fattah — criminal — partial affirmance — Smith

[UPDATE: when I saw this opinion, I briefly thought, “wait, wasn’t that already decided? But the opinion wasn’t captioned as being amended as it normally would be, and I was distracted with something else, so I forgot to check and I just wrote a summary. Sorry. Today’s ruling amends the one the court issued back in August. Today’s opinion is 4 pages longer and, sorry again, I haven’t figured out yet what changed beyond the fact that the typeface is larger.]

In a sprawling 165-page, 12-section opinion, the Third Circuit today issued a mixed-bag opinion for former US Congressman Chaka Fattah Sr. and three co-defendants, vacating five counts of conviction, reversing judgements of acquittal on two counts, and otherwise affirming. The five vacated counts were for bribery and honest-services fraud, which the court vacated under the Supreme Court’s 2016 ruling in McDonnell v. US.

Joining Smith were Greenaway and Krause. Arguing counsel were: Jonathan Kravis for the government, Bruce Merenstein of Schnader for Fattah, Ann Flannery of Philadelphia for one co-defendant, Barry Gross of Drinker Biddle for another, and Glen Nager of Jones Day for the third. Video of the oral argument, which ran over two and half hours, is here.

Third Circuit Bar presidency passes from Becker to Simpson

Earlier this month, Andrew Simpson became president of the Third Circuit Bar Association. Simpson is a solo practitioner in St. Croix in the U.S. Virgin Islands, and he becomes the first Virgin Islands lawyer ever to lead 3CBA. He’s an accomplished appellate practitioner who appears regularly in the Third Circuit and last year won a unanimous Supreme Court reversal. (Plus an indefatigable hurricane survivor.)

Simpson takes over the presidency from Charles “Chip” Becker of Kline & Specter. Becker led 3CBA through two dynamic years as the group participated in the Court’s 2017 judicial conference, added four strong board members (Nilam Sanghvi of the PA Innocence Project and Penn Law, Tieffa Harper of the Delaware federal defender, Katherine Romano of Walsh Pizzi, and me), made progress towards a retooled website, and started a popular series of judge-led advocacy CLEs.

In addition to the change in presidency, the 3CBA board elected a new slate of board officers:

If you’re not already a 3CBA member, you ought to fix that. If you’re already a member and you’d like to get more involved by, say, helping with CLE events, writing a piece for the newsletter, or being considered for a future board opening, just reach out to me or any of the other board members.

To Chip, thank you for two dynamite years at the helm. And to Andy, congratulations and good luck!

New opinion

T Mobile Northeast v. City of Wilmington — civil — reversal — Jordan

A federal law required wireless providers challenging denials of permission to build cell towers to bring their challenge “within 30 days after” the denial. Here, the wireless provider raised its challenge before the denial was final, and didn’t supplement it within 30 days after. The district court held that the claim was unripe when filed and not saved by relation back, granting summary judgment against the provider. Today, the Third Circuit reversed, agreeing that the initial complaint was unripe but holding that the belated supplemental complaint related back to the unripe complaint and thus cured the timeliness problem.

Joining Jordan was Nygaard; Vanaskie had been the third judge on the panel. Arguing counsel were Scott Thompson of D.C. for the wireless provider and Joseph Van Eaton of D.C. for the municipal appellees.

The Third Circuit’s courthouse should be renamed for Becker or Hastie

Back in 2017, I wrote a post (link here) I entitled, “Why is the Third Circuit’s courthouse named for James Byrne?” The gist was that Byrne was an obscure Democratic member of Congress, that other circuit courthouses were named for more distinguished figures like Supreme Court justices and legendary circuit judges, and that there was ample precedent for renaming circuit courthouses, so renaming the Third Circuit’s courthouse was “worth considering.”

In my post, I offered up a quick list of nine folks for whom the courthouse could be renamed. Listed alphabetically, they were: Ruggero Aldisert, Edward Becker, William Brennan, William Hastie, Leon Higginbotham, Collins Seitz, Delores Sloviter, Arlen Specter, and James Wilson.

A recent discussion on Twitter got me going about this again and, a year and a half after my original post, I’ve got some more concrete views on renaming the Third Circuit courthouse.

This is worth doing. The name of the circuit courthouse really matters, and not just to nerdy Third Circuit diehards like us. For judges, we don’t create national holidays or build monuments in D.C., we name courthouses, but the civic purpose is the same and it’s not really about paying tribute to great individuals. Deciding who to name a courthouse after is a statement of our values. It is how we express, to ourselves and to future generations, our deepest aspirations for the role the law can play in strengthening our nation. The current name does not fulfill that purpose.

Of the nine candidates I brainstormed in my original post, I believe the choice boils down to two: Edward Becker or William Hastie. Either would be magnificent.

Becker is a giant of the modern federal judiciary, the judge who more than any other led the way to solving the great legal puzzle of our time, how to provide fair compensation for the millions of persons exposed to asbestos. He served on the Third Circuit for a quarter-century (five years as its chief) until his death in 2006. Today Becker is well-nigh universally beloved in the circuit. In this dark time of political polarization and judicial politicization, he is a bright beacon on the path back.

Hastie may be less vivid in our memory today, but he is unsurpassed in the Third Circuit’s history. Hastie was a pathbreaker—the first African American federal judge when he was appointed by FDR to the District of the Virgin Islands in 1937, the first African American circuit judge when he was appointed by Truman to the Third Circuit in 1949, and the first African American chief judge of a circuit starting in 1968. And Hastie was impactful before ever joining the bench, a leading civil rights advocate who with his former student Thurgood Marshall won the landmark Smith v. Allwright white-primaries case before the Supreme Court in 1944. He was a top candidate for the Supreme Court seat filled by Byron White (Earl Warren opposed Hastie for being “not a liberal”). At Hastie’s funeral, Chief Justice Warren Burger said, “In a court that has always included some of the outstanding members of the American judiciary”—preach!—”he was second to none.”

In my original post, I said my vote would be for Becker, but on reflection I don’t favor either over the other. Becker and Hastie aren’t the only strong candidates—compelling cases also could be made for Brennan and Higginbotham, too—but in my view they’re the two strongest. And I’m hardly original in reaching that conclusion: in the current courthouse, the lobby is named for Becker and the library for Hastie.

So, in the end, I can’t say whether it should be renamed for Becker or Hastie. I just know it should be renamed.

“Humor in the Court: The Edward R. Becker Papers”

Today, while hunting around online for another blog post I’m working on, I stumbled across this remarkable post on the Yale University Library’s website, the title of which is the title of this post. Yale houses former Third Circuit Judge Becker‘s papers (he graduated from law school there, as did his accomplished son Chip), and in them there is evidence not just of the judge’s rare legal acumen, but also his famously impish sense of humor.

One zany highlight is Judge Becker’s 1995 wanted poster, featuring the soft-spoken and singularly polite Judge Anthony Scirica. It was sent with a cover memo signed “Fast Eddie” that reported spotting “this guy Tony in the lobby,” and closed, “This guy worries. me.” The poster described Scirica as “known to impersonate Federal Judge” and “EXTREMELY DANGEROUS.”

Professor Eric Muller came across it while doing research in Judge Becker’s papers, and he sent me a copy last year; to be honest, I was too timid to post it. But now that I see it’s respectably online already, I doubt I’ll be disbarred or defenestrated for sharing it—no matter how dangerous the judges may be.

Two new opinions, both authored by retired Judge Vanaskie [updated]

The Third Circuit posted two new precedential opinions today, both authored by Judge Vanaskie, who has retired. Both opinions contain the following footnote:

“The Honorable Judge Vanaskie transmitted the opinion to the Clerk for filing prior to retiring from the bench on January 1, 2019. Due to the intervening holiday, the opinion has been entered on the docket by the Clerk this day.”

At the risk of being accused of Stiegler sticklerism, I think it would have been preferable (assuming that post-retirement issuance was unavoidable) to issue the opinions as two-judge per curiam opinions with footnotes indicating that Judge Vanaskie authored and submitted them prior to his retirement. Doing it the way the court did here invites controversy over the issuance of opinions after a panel member’s death or retirement, unnecessarily in my view.

[UPDATE: the court also issued two non-precedential opinions today that listed Judge Vanaskie on the coram but, unlike the published opinions, stated that the opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d) and 3d Cir. IOP 12.

IOP 12.1(d) speaks directly to this situation:

If the author of an opinion or member of the panel becomes unavailable after transmission of the opinion to the clerk, but before the opinion is filed, the chief judge may direct that the opinion be filed listing the unavailable judge on the coram, provided neither of the remaining judges has authored a concurrence or dissent. Ordinarily the opinion will be filed as a per curiam opinion but the chief judge may in his or her discretion direct that the opinion be filed with the unavailable judge listed as author. The clerk will note on the opinion that it was received in the clerk’s office before the panel member became unavailable.

So, while the internal procedures appear to favor the course I suggested above, they specifically give the Chief Judge the discretion to do exactly as he evidently did here.]


Simpson v. AG — civil — affirmance — Vanaskie

The Third Circuit upheld the ATF’s revocation of a gun dealer’s firearm licenses based on over 400 willful violations of gun laws, holding that such violations are willful if they involve “knowledge of a legal obligation and purposeful disregard or plain indifference to it.”

Joining Vanaskie were Chagares and Jordan. Arguing counsel were Joshua Prince of the Prince Law Offices for the dealer and Carlo Marchioli of the MDPA’s US Attorney’s office for the government.


Ku v. AG — immigration — affirmance — Vanaskie

The Third Circuit today held that an immigrant’s conviction for wire fraud resulted in a loss of over $10,000 and was a crime involving moral turpitude. The court further held that it lacked jurisdiction to review ruling of the Board of Immigration Appeals reversing an Immigration Judge’s grant of a waiver based on the extreme hardship that deportation would cause her U.S. citizen children.

Joining Vanaskie were Jordan and Nygaard. Arguing counsel were Thomas Griffin of Surin & Griffin for the immigrant and Gregory Pennington Jr. for the government.

Vanaskie enters retirement

Thomas Vanaskie retired yesterday, bringing to a close nearly 25 years of distinguished service as a federal judge, of which the last eight years were as a judge on the Third Circuit. Never flashy or ideological, he simply worked to get each case right. The Third Circuit is a centrist, practical court, and to me Vanaskie was its most centrist, practical judge.

I don’t expect to see another Third Circuit nominee like Vanaskie in my lifetime. He was a centrist nominated for elevation by President Obama in August 2009 with two Democratic home-state senators and a filibuster-proof Democratic Senate majority. He was 56 years old when he joined the Third Circuit, and he is 9 years older than Judge Michael Chagares, 4 years older than Judge Kent Jordan, and 12 years older than Judge Thomas Hardiman, even though those three had been nominated by the previous administration. Heaven knows what inspired 20 Republican Senators to vote against his nomination. His Senate Judiciary questionnaire may be the least controversial one you’ll ever see, right on down to his past presidency of his high school alumni association and his co-chairmanship of the circuit task force on libraries.

Vanaskie’s November announcement that he was taking senior status was a bombshell. Going senior just days after he became eligible to do so, and thereby creating a key fourth opening on the court to be filled by a manifestly unfit president, is one of the the most stunning and consequential Third Circuit developments in many years. It was an ironic ending to a drama-free quarter-century on the bench—but then, it was fitting that a judge who ignored partisan concerns throughout his judicial career would ignore them at the end, too.

Happily, Vanaskie’s retirement from the court is not the end of his legal career. According to media reports, he plans to work with a mediation firm and a start-up company developing a data-analysis program. His passion for technological innovation is long-standing: he spearheaded the Middle District’s early adoption of electronic filing and chaired the federal judiciary’s Committee on Information Technology.

I’ll give the final word to two of Vanaskie’s district court colleagues, quoted in the local newspaper article announcing his retirement:

“He sums up all the good things we want to have in a judge,” said Senior U.S. District Judge A. Richard Caputo. “He had a wonderful temperament. He was bright. He was fair and respectful to all, not just lawyers, but all litigants and court personnel.”


Vanaskie remained down to earth, said Senior U.S. District Judge James Munley. He maintained an office at the federal courthouse in Scranton and was always willing to help fellow judges.

“He was a friend, one you could always go to for advice,” Munley said. “He is a remarkable person and had been a leader of our court … He will be greatly missed.”


New opinion — Third Circuit allows Bivens claim for failure to protect prisoner to proceed

Bistrian v. Levi — civil rights — partial affirmance — Jordan

Peter Bistrian was being held in prison awaiting trial for wire fraud and earned the privilege of working outside his cell as an orderly. Another inmate, Steven Northington, asked Bistrian to pass notes from Northington to other prisoners. Northington was being held for a federal capital trial for being a leading member of the violent drug operation headed by Kaboni Savage. [Disclosure: I represent a co-defendant of Northington and Savage in a pending Third Circuit criminal appeal.]  Bistrian, who must be mind-bogglingly brave, told prison guards about Northington’s request and then agreed to pass Northington’s notes to the guards for them to photocopy before Bistrian delivered them. But when one of the prison guards screwed up and gave Bistrian the photocopy instead of the original, Bistrian’s cooperation was discovered, and Bistrian received multiple threats. Even though the guards were aware of these threats, they one day sent Bistrian into the recreation yard with Northington and two others, who commenced to “brutally beat” him, causing him “severe physical and psychological injuries.” What an unfathomable nightmare.

Bistrian sued the guards and the government, asserting Bivens claims for failing to protect him and for retaliating against him for filing inmate grievances. The defendants asserted qualified immunity and the district court granted summary judgment on this basis for some claims but not others. Yesterday, the Third Circuit affirmed in part, holding that Bistrian’s Bivens claims for failure to protect survived summary judgment but that his retaliation claims did not.

The court also refused to find that the defendants had waived their key legal argument by failing to raise it below, explaining that “[t]o rule otherwise would be to allow new causes of action to spring into existence merely through the dereliction of a party,” although I don’t follow how recognizing waiver of a legal argument by a party in one appeal would spring anything into existence.

Joining Jordan were Rendell and the about-to-retire Vanaskie. Arguing counsel were Jeffrey Scott of Archer for the defendants and Richard Bazelon of Bazelon Less for Bistrian.

New opinion [updated]

Jaroslawicz v. M&T Bank — civil — partial reversal — Vanaskie

UPDATE: on June 4, 2019, the court granted panel rehearing, vacated this opinion, and reconstituted the panel.

Today the Third Circuit reversed in part the dismissal of a shareholder suit in the wake of a 2012 bank merger, holding in a detailed opinion that the shareholders pleaded actionable claims for failing to disclose risk factors prior to the merger and plausibly alleged loss causation.

Joining Vanaskie were McKee and Siler CA6 by designation. Arguing counsel were Deborah Gross of Kaufman Coren for the appellants and Barry clerk Bradley Wilson of Wachtell for the appellees (George Conway III was on the brief).

The 10 most-read CA3blog posts of 2018

Ladies and gentlemen, I present you: the 10 most-clicked-on CA3blog posts of 2018. My favorite was the argument-as-kabuki post (#6), and the most fun to do was the oral-argument compilation (#7).

1. Some thoughts on yesterday’s remarkable oral argument in the Philadelphia sanctuary-city appeal (November 8)

Katyal is one of the most accomplished Supreme Court advocates alive, and I hadn’t seen one of his arguments before, so I was eager to watch him in action. I left with my jaw on the floor.

2. Lawyer’s Third Circuit brief results in bar discipline (December 7)

3. Is Paul Matey’s Third Circuit nomination still on track? (August 18)

4. New opinion — an interesting debt-collection-suit win (February 12)

the counsel match-up was David vs. Goliath–a junior consumer lawyer against a past president of the American Academy of Appellate Lawyers–and the junior lawyer won

5. Judge Vanaskie will take senior status (November 27)

6. Oral argument as kabuki (May 25)

Hitting the right tone for persuasive oral argument is like suppressing your impulse to talk over a judge. It’s not familiar or natural, and it’s not as easy as “respectful conversation.” Before you can begin to master it, first you have to decide to work at mastering it.

7. A bunch of good Third Circuit oral arguments (May 23)

8. The latest Third Circuit case statistics seemed to reveal a stunning transformation, but actually the data is useless (March 15)

9. The Third Circuit honors its newest judge, Stephanos Bibas (April 20)

There isn’t much glory in writing a circuit blog, but now and again it leads to wonderful things, and so it was yesterday when I had the privilege attending the investiture of the Third Circuit’s newest judge, Stephanos Bibas.

10. New opinion — Third Circuit clarifies the new-evidence standard for proving actual innocence (July 23)


To my surprise, two posts from previous years would have finished in this year’s top 10:


And the single least read post of 2018? I believe it was the deservedly ignored Due to snowstorm, today’s Third Circuit deadlines extended to tomorrow.


Happy holidays to all! And thank you for reading my nerdy little blog this year.

Court announces procedures for government shutdown; most deadlines remain in place

The Third Circuit posted the following announcement today on its website:

US Court of Appeals for the Third Circuit Open During Government Shutdown

The United States Court of Appeals for the Third Circuit is open during the Government Shutdown. Oral arguments will be heard as scheduled. All filing deadlines must be met. CM/ECF will remain operational. Attorneys representing federal government agencies in cases scheduled for oral argument must promptly contact the Clerk’s Office regarding any arrangements necessary during a lapse in funding, e.g. substitution of counsel, request to have case submitted on the briefs. Federal government agencies are expected to timely respond to emergency or expedited motions and cases. Deadlines for filings by federal government agencies in non-emergency cases will be suspended during the government shutdown. New deadlines will be established once the government shutdown has ended. To ensure an orderly resumption of work, government entities should expect that deadlines will be staggered. For example, filings due December 24, 2018 would be due seven days after the end of the shutdown; filings due December 26 would be due eight days after the end of the shutdown. The Court will be closed on December 25, 2018 and no deadlines have been set for that day. Attorneys appointed under the Criminal Justice Act should continue their representation and should continue to submit vouchers for payment. Payment of vouchers will be delayed.

Judge Vanaskie is retiring on January 2

Third Circuit Judge Thomas Vanaskie has announced that he is retiring from the court effective January 2. The story was first reported by the Wilkes-Barre, Pa., Citizens’ Voice, link here.

Judge Vanaskie had assumed senior status just last month, which created an open seat on the court. But this announcement means he now will leave the court entirely.

From the Citizens’ Voice story:

He said he is stepping down to spend more time with his family and pursue an opportunity with a mediation firm and a start-up company developing a computer program that will allow attorneys to quickly analyze massive amounts of data.

“I’ve done everything I could in the judiciary and had a great experience,” Vanaskie said. “I have some other opportunities I’d like to explore. I thought this was the right time to do it.”

Judge Vanaskie joined the Third Circuit in 2010 after being nominated by President Obama. His retirement will leave the court with nine senior judges.

Three reversals

Bedrosian v. US — tax — reversal — Ambro

Says the introduction:

This appeal presents two issues of first impression in our Court concerning the Internal Revenue Service’s assessment of civil penalties for violation of 31 U.S.C. § 5314 and its implementing regulations, which require certain persons annually to file a Report of Foreign Bank and Financial Accounts (colloquially called a “FBAR” or simply “Report”). First, we examine federal court jurisdiction over actions challenging the IRS’s assessment of civil FBAR penalties. We conclude that jurisdiction exists here but reserve the question whether it is established in the District Court when a taxpayer files suit to challenge a FBAR penalty before fully paying it. Second, we clarify that, to prove a “willful” FBAR violation, the Government must satisfy the civil willfulness standard, which includes both knowing and reckless conduct. To ensure this action accords with that standard, we remand for further proceedings consistent with our opinion.

The court sided with the government in holding that the district court applied the wrong standard for willfulness insofar as implied that the issue turned on the taxpayer’s subjective motivations and the overall egregiousness of his conduct.

Joining Ambro were Chagares and Greenaway. Arguing counsel were Andrew Weiner for the government and Patrick Egan of Fox Rothschild for the taxpayer.


US v. Bey — criminal — reversal — McKee

The Third Circuit today vacated a defendant’s criminal conviction, holding that, while the initial stop was lawful, the continuation of the stop after the officers should have realized that he did not meet the physical description violated the Fourth Amendment.

Joining McKee were Vanaskie and Restrepo. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Robert Zauzmer of the EDPA US Attorney’s office for the government.


And, yesterday:

In re: Community Bank of Northern Va. Mortgage Lending Practices Litig. — civil / jurisdiction — reversal — Shwartz

An attorney-fee-allocation dispute broke out after the final order approving a class action settlement. After one side filed a state action alleging breach of contract, the other side asked the federal court that had presided over the class action to halt the state litigation and decide the fee issue itself, which it did. The Third Circuit reversed, holding that the district court erred in exercising ancillary jurisdiction over the state litigation.

Joining Shwartz were Roth and Fisher. Arguing counsel were Stanley Stein of Pittsburgh for the appellant and Gary Lynch of Carlson Lynch for the appellee.

NRA group files for rehearing in NJ large-capacity gun-magazines appeal

The Association for New Jersey Rifle & Pistol Clubs on Wednesday filed a petition for en banc rehearing in ANJRPC v. AG, in which the Third Circuit denied the group’s Second Amendment challenge to New Jersey’s law limiting gun magazines to 10 bullets. The group posted its petition online, link here.

The petition asserts five grounds for rehearing, including that the Court should adopt “eschew tiers of scrutiny” and adopt in its place “[a]n approach based on text, history, and tradition.”

It unloads on the panel-majority opinion with a  barrage of sinister verbs: “refused,” “disregarded,” “directly contravenes,” “avoided that conclusion by grafting a new requirement,” “arrogated to itself,” “allowed the suppression of a fundamental right ‘for mere convenience,'” “invented,” “manufactured,” “proceeded to shift the burden of proof,” “made factual assertions that are dubious, irrelevant, or based on flawed empirical methodologies,” “ignoring almost all contrary evidence and counterargument,” “never even analyzed,” “refusing to hold the State to its burden of proof,” “flipped the burden,” and “created a circuit split without even trying to justify doing so.” This is a frankly bewildering approach to seeking a majority for Third Circuit en banc rehearing.

In the weeks since it issued, the panel-majority opinion in this case has been targeted for extraordinary criticism on pro-gun websites and conservative news outlets. A few examples:

  • here (graphic: “I WILL NOT COMPLY”), and
  • here (headline: “Venezuela Banned Gun Ownership Before Country’s Collapse”)

As I observed on Twitter, I don’t remember ever seeing a circuit case in which the public criticism focused so heavily on identifying the majority and dissenting judges by name and by the president who had nominated them, and I find it scary as hell.

The petitioner’s announcement states that, “If the court declines en banc review, ANJRPC is prepared to eventually seek review from the U.S. Supreme Court.”

Two new opinions [updated]

NLRB v. Imagefirst Uniform — labor — partial reversal — Cowen

The Third Circuit today partially granted the National Labor Relations Board’s application for enforcement of its decision holding that an employer violated the NLRA. The employer broke the law when it tried to block union representatives from handing out literature on the public sidewalk outside its building, but not when it called the police.

Joining Cowen were Krause and Fuentes. Arguing counsel were Kellie Isbell for the NLRB and Christopher Murphy of Morgan Lewis for the employer.


US v. McCants — criminal — affirmance — Hardiman

UPDATE: the panel granted rehearing and issued a new opinion, link here.

The Third Circuit today rejected a criminal defendant’s challenge to legality of a search that resulted from an anonymous 911 call, as well as his challenges to his sentencing as a career offender based on prior NJ convictions for second-degree robbery as crimes of violence.

Joining Hardiman were Krause and Bibas. Arguing counsel were Leticia Olivera of the NJ FPD for the defendant and Richard Ramsay of the NJ USAO for the government.

[post updated to correctly identify arguing counsel for the government.]

Today’s en banc vote: one more thing

A quick note that I only thought of after my original post: Judge Vanaskie is listed as participating in the vote on whether to grant rehearing en banc, although he took senior status effective November 30. I would have thought that whether a judge participated in a vote on whether to grant en banc rehearing was determined by his status on the date of the decision (today), not on the date the rehearing petition was filed (presumably before November 30). It seems I would have been mistaken.

The relevant procedure, IOP 9.5.3, doesn’t clearly answer this point, saying, “Pursuant to 28 U.S.C. ‘ 46(c), only active judges of this court may votefor rehearing en banc. Therefore, rehearing en banc shall be ordered only upon the affirmative votes of a majority of the judges of this court in regular active service who are not disqualified.”

(An obscure point perhaps, but it wouldn’t be all that far-fetched to imagine Judge Vanaskie being the decisive seventh vote in favor of rehearing here.)

Third Circuit grants en banc rehearing on PLRA three-strikes issue

The Third Circuit today granted rehearing en banc in Brown v. Sage. In Brown, a panel majority (Judge Fuentes, joined by Chief Judge Smith) had ruled that a prisoner had not accrued three strikes under the Prisoner Litigation Reform Act, while Judge Chagares had dissented vigorously and urged the court to hear the case en banc. My summary of the panel opinion is here, the now-vacated panel opinion is here.

New opinion — a Pa. conviction for endangering the welfare of a child is not a deportable child-abuse crime

Liao v. AG — immigration — reversal — Shwartz

A Chinese citizen who had been a legal permanent US resident for a decade was convicted in Pennsylvania of endangering the welfare of a child after a physical altercation with his girlfriend. Yesterday, the Third Circuit held that his conviction was not a “crime of child abuse” under the Immigration and Naturalization Act because the elements of the criminal statute allowed conviction on a lesser showing  than the INA. The court accordingly vacated the man’s removal order and remanded.

Joining Shwartz were Roth and Fisher. Arguing counsel were former Ambro clerk Joshua Bolian of Robbins Russell for the immigrant and Jonathan Robbins for the government. The opinion noted that Bolian appeared pro bono, noted that his service is in highest tradition of the profession, and thanked him for his representation.

John Gibbons, former Third Circuit Chief Judge, 1924-2018

Former Third Circuit Judge John J. Gibbons died yesterday at age 94. Judge Gibbons was a Third Circuit judge for 20 years and Chief Judge for three, serving from 1970 until his retirement in 1990.

The Gibbons law firm posted this announcement and remembrance, which begins:

It is with great sadness that Gibbons P.C. announces the passing of John J. Gibbons, the firm’s Standard-Bearer, on December 9, 2018.

Judge Gibbons, the former Chief Judge of the United States Court of Appeals for the Third Circuit, committed his six-decade career to protecting the rule of law in the United States. His commitment dates back to the 1960s – when, as the President of the New Jersey State Bar Association, he enlisted attorneys to help those unable to afford legal representation during the Newark Riots – and continued into the new century, culminating in his argument in front of the United States Supreme Court in support of civil liberties and government transparency in the war on terrorism.

Here are three links of particular interest:

  • video of an interview of Gibbons by his friend and former colleague, Judge Leonard Garth.
  • audio of Rasul v. Bush, the landmark Supreme Court case he argued in 2004 challenging the detention of 660 men at Guantanamo Bay without judicial review. His argument began, “What is at stake in this case is the authority of the Federal courts to uphold the rule of law.”
  • a wonderful 2008 public television profile of Gibbons.

The Gibbons Firm will celebrate his career with a memorial ceremony in January. Judge Gibbons was a fine judge, an accomplished lawyer, and a beloved person, and he will be missed.

New opinion

Castellanos Monzon v. De La Roca — international — affirmance — McKee

The Third Circuit today affirmed a district court’s denial of a father’s petition under an international agreement (the Hague Convention on the Civil Aspects of International Child Abduction Remedies) for the return of his child from the mother after they divorced and she moved with the child from Guatemala to the U.S.

Joining McKee were Ambro and Restrepo. Arguing counsel were John Boehler, formerly of Rutgers Law Associates and now of Beattie Padovano, for the father and Kennedy clerk Mark Taticchi of Drinker Biddle for the mother.

UPDATE: this story by Charles Toutant for New Jersey Law Journal provides helpful context on the procedural history.

Judges Restrepo and Bibas offer advice on appellate practice [guest post]

Note: this guest post was written by Karl Myers, a leading Pennsylvania appellate lawyer at Stradley Ronon. You can follow Karl on Twitter (as I do) at @KarlSMyers.

On November 28th, I attended a CLE program in Norristown at the Montgomery Bar Association, entitled “Tips on Third Circuit Practice From Two Circuit Judges.”  The panelists were Third Circuit Judges Felipe Restrepo and Stephanos Bibas.  It was an interesting discussion that covered the expected recommendations about briefing and argument, but also featured some interesting tidbits that likely will be of use to Third Circuit practitioners.

For example, Judge Bibas emphasized the need to carefully use authority in briefs.  He noted that he has seen a number of submissions that treat non-binding authorities (like district court and magistrate judge decisions) as if they are binding on the Third Circuit.  Citing those opinions necessitates a discussion about the facts and rationales employed.  That way the court has a good handle on why those cases have been cited and why they should be followed.  Along the same lines, Judge Bibas noted that he finds it particularly effective when advocates pull the briefing filed in the cases cited and use the context of that advocacy to demonstrate how the cases cited should be understood.

In terms of the Judges’ review process, Judge Restrepo starts by reading the appellant’s summary of argument, then reads the district court opinion, and then returns to the appellant’s brief.  He picked up this technique from Judge Cheryl Krause, as she quickly learned that reading the district court opinion first does not make much sense because some issues addressed in the district court opinion may not be appealed, and thus the district court’s discussion of those issues need not be considered.   Both Judges Restrepo and Bibas use a combination of paper and iPads for review of briefs and opinions.  Judge Bibas noted that he usually starts with reading hard copies but will use an iPad for a third or fourth review of the briefs or while traveling.

Judge Bibas shared some insights about the timing of oral argument and the associated need to timely file reply briefs.  He explained that cases are typically assigned to argument panels about 8 weeks before argument.  That assignment happens once the appellee’s (red) brief is filed – not when the reply is filed.  The panel members then will discuss candidates for argument typically 4 weeks or so before the argument week.  So it behooves an appellant to file its reply in a timely manner and not ask for more than one extension, as otherwise there is a good chance the panel will make a decision about argument without having considered the reply.  Both Judges Bibas and Restrepo noted that reply briefs are relatively rare, as they see them in fewer than half of all cases – a statistic I found surprising.  They both would like to see more replies, as they are often left wondering what the appellant’s response is to some of the appellee’s points in cases where they do not receive a reply.

With regard to argument itself, Judge Restrepo noted that even though a specific amount of time is set for each case, there is wide variance in how rigorously the time is enforced by each presiding judge.  So once a case is set for argument and the panel identified, he recommends watching the court’s argument videos or listening to the audio streams from another panel with the same presiding judge to get a feel for how the argument will be managed.

In my view, both Judges Restrepo and Bibas were interesting and engaging speakers and seemed to relish the opportunity to educate and engage with the bar so practitioners could have a better understanding of the court’s work and, as a result, more effectively represent their clients.

Lawyer’s Third Circuit brief results in bar discipline

The Disciplinary Board of the Supreme Court of Pennsylvania is scheduled to issue a public reprimand next month of an attorney who filed a Third Circuit brief containing comments the panel described as “unprofessional.”

According to a news report today, a Wilkes-Barre lawyer will appear on January 7 for the Board’s public reprimand. The lawyer reportedly acknowledged that his statements were inappropriate and consented to the reprimand.

The Third Circuit’s 2017 non-precedential opinion , authored by Chief Judge Smith, catalogs the offending statements in a footnote:

See Appellant’s Br. at 13 (“The District Court . . . smugly contradicted itself”); 14 (“If, as the District Court so proudly recited”); 15 (“a genuine issue of fact was clearly and intentionally overlooked by the District Court” and the District Court’s analysis is “quite frankly, outright false”); 16 (“evidences the District Court’s clear lack of understanding of Pennsylvania Tax Sale Law,” “seemingly in an effort to bolster a legal position that really does not exist, the District Court misstated the status of the law,” and the “Court chose to omit that crucial language to avoid giving Swinka their opportunity in court”); 17 (“two (2) distinct problems with the District Court’s unsubstantiated position”); 19 (“the District Court grossly erred in its ruling”); 19 n.1 (“the District Court has acted far outside its bounds”), 20 (“The District Court . . . was once again, wrong.”); 21 (“This issue presents the Third Circuit with one of the more shocking decisions and questionable reasoning by the District Court. The District Court astonishingly claims”); 22 (“[i]t is not only disingenuous for the District Court” and “the District Court misstates, and clearly misunderstands”); 23 (asserting the Court “padded its opinion with irrelevant citations to cases”); 24 (“The District Court has gone to great lengths to deprive Swinka of its rights”); 25 (“most egregiously, the District Court seeks to deprive Swinka of its rights” and “clearly feels that Swinka’s rights are secondary to everyone else merely because of the values involved”) .

The panel’s view of these statements was scalding:

Swinka appeals the dismissal of all of its claims, except the breach of contract action. In doing so, Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel.[ When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

I can’t tell who actually referred the matter to the Disciplinary Board, but the opinion included a pointed note that counsel is a member of the PA bar bound by ethics rule 8.2(a) (“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”).

So, lawyers: don’t do that.

[UPDATE: I included the lawyer’s name in my original post, but I’ve removed it (not at anyone’s request) because I decided it wasn’t necessary to include.]

New opinion — divided Third Circuit rejects initial challenge to NJ large-capacity-gun-magazine ban

Ass’n of NJ Rifle & Pistol Clubs v. AG — constitutional — affirmance — Shwartz

A divided Third Circuit panel today ruled against challengers to New Jersey’s law limiting gun magazines to 10 bullets, affirming the district court’s denial of a preliminary injunction.

Given the issue, the panel’s split, the high level of amicus involvement, and the current Supreme Court, petitions for en banc rehearing and/or certiorari seem highly likely.

Joining Shwartz was Greenaway; dissenting was Bibas. Arguing counsel were David Thompson of Cooper & Kirk for the challengers and Jeremy Feigenbaum for the state.

Court will observe day of mourning Wednesday, but most filing deadlines remain in place

The Third Circuit has posted this announcement on its website:

Wednesday, December 5, 2018 – National Day of Mourning

The United States Court of Appeals for the Third Circuit will observe the National Day of Mourning on Wednesday, December 5, 2018. Limited Clerk’s Office staff will be available to address emergencies and accept filings. Filing deadlines that fall on Wednesday, December 5, 2018 will be automatically extended for Federal Government agencies. Non-federal government parties may continue to file through the Court’s CM/ECF system.

I believe no arguments had been scheduled. Note that deadlines are extended only “for Federal Government agencies.”

The next Third Circuit nominee must be a woman

Back in 2016, I posted this chart showing how the Third Circuit stacks up against the other circuits on gender diversity:

Since that day, three new judges have been nominated to the Third Circuit, all three by President Trump, two confirmed and one pending. All three: men.

Last week, Judge Thomas Vanaskie took senior status, creating a fourth opening for President Trump to fill, less than halfway through his term. (President Obama added five during his two terms, one of them Vanaskie.) Among other things, this means that the number of active Third Circuit judges named Thomas is no longer greater than the number of them who are women, which is progress of a sort.

Once Paul Matey is confirmed, the Third Circuit’s active judges will be 11 men and 2 women.  A court that just a decade ago featured a robust, ideologically diverse contingent of women active judges—Sloviter, Roth, Rendell, Barry—will be more gender-skewed than a Black Sabbath show.

Some conservatives still dismiss any attention to the diversity of federal judicial nominations as a “quota mentality.” I disagree. I believe the executive branch does real and lasting damage to the judicial branch when it creates wild demographic distortions like the gender imbalance now afflicting the Third Circuit.

No excuses: the person nominated to fill Judge Vanaskie’s seat has to be a woman.

But, let’s face it, if the only voices who speak up about this now—before a nominee is named—are nerdy, liberal-leaning circuit bloggers, the odds aren’t great. So I hope in the days ahead that people the administration will listen to speak up, publicly or privately. Those of us who care about the Third Circuit and the federal judiciary as a whole have a duty to protect it. Now, I submit, is one of those moments.

The Third Circuit’s next nominee should be a woman. The Trump administration needs to hear that now.

Two new opinions

(The Third Circuit issued two published opinions yesterday. I had a Third Circuit brief due that I filed at 10:22 pm, so blogging had to wait.)

US v. Hester — criminal — partial reversal — Restrepo

The Third Circuit affirmed the denial of a motion to suppress evidence seized during a traffic stop, but reversed the application of a sentencing enhancement for evidence tampering.

On the suppression issue, the court held that the traffic stop was a seizure and that the defendant submitted to authority despite his eventual failed attempt to flee, but that the stop was supported by reasonable suspicion.

On the sentencing issue, it held that application of the enhancement was erroneous for two reasons: (1) factually, the defendant’s actions didn’t amount to tampering (“we cannot agree that ex post expressions of regret about not having committed a potentially criminal act amounts to an attempt to commit that same criminal act” is a cool line), and (2) legally, the enhancement didn’t apply because it required possession of a gun “in connection with” another offense and no connection was present here. The court rejected the government’s argument that remand was pointless because the judge had already departed downward due to uncertainty about the enhancement’s application.

Joining Restrepo were Smith and McKee. Arguing counsel were John Romano for the government and Leticia Olivera of the NJ federal defenders for the defendant.


In re: Revel — bankruptcy — affirmance — Ambro

The Third Circuit affirmed a ruling leaving in place a tenant’s favorable lease terms after the landlord declared bankruptcy and was purchased free and clear. Best line: “The Lease is long and neither simple nor direct. Indeed, it is an almost impenetrable web of formulas, defined terms, and cross-references–a ‘bloated morass,’ in the words of the Bankruptcy Court.”

Joining Ambro were Chagares and Greenaway. Arguing counsel were Stuart Moskovitz for the new landlord and Jeffrey Cooper of Rabinowitz Lubetkin for the tenant.


New opinion

In re: IMMC Corp. — bankruptcy — affirmance — Rendell

The Third Circuit today held that, because a bankruptcy court lacked the power to adjudicate an adversary proceeding, it properly denied a trustee’s motion to transfer the adversary proceeding to a district court. The court sidestepped the statutory question of whether a provision authorizing “courts” to transfer proceedings included bankruptcy courts, but noted in a footnote that Judge Roth would have answered that question in the negative.

Joining Rendell were Shwartz and Roth. Arguing counsel were Mara Beth Sommers of Florida for the trustee and Clair Wischusen of Fox Rothschild for the appellees. I do believe this is the first time since I started this blog that a Third Circuit panel composed of three women precedentially decided a case argued by two women. Pretty cool.

Two new opinions, including a partial reversal of the Bridgegate convictions

US v. Baroni — criminal — partial reversal — Scirica

The introduction admirably summarizes things:

Defendants William E. Baroni, Jr. and Bridget Anne Kelly engaged in a scheme to impose crippling gridlock on the Borough of Fort Lee, New Jersey, after Fort Lee’s mayor refused to endorse the 2013 reelection bid of then-Governor Chris Christie. To this end, under the guise of conducting a “traffic study,” Baroni and Kelly, among others, conspired to limit Fort Lee motorists’ access to the George Washington Bridge—the world’s busiest bridge—over four days in early September 2013: the first week of Fort Lee’s school year. This scheme caused vehicles to back up into the Borough, creating intense traffic jams. Extensive media coverage ensued, and the scandal became known as “Bridgegate.”

In 2015, a grand jury indicted Baroni and Kelly for their role in the scheme. Each Defendant was charged with seven counts: conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, 18 U.S.C. § 371, and the substantive offense, id. § 666(a)(1)(A); conspiracy to commit wire fraud, id. § 1349, and two counts of the substantive offense, id. § 1343; and conspiracy against civil rights, id. § 241, and the substantive offense, id. § 242. A jury convicted Defendants on all counts. They appeal only their judgments of conviction.

For reasons that follow, we will affirm Defendants’ judgments of convictions on the wire fraud and Section 666 counts but will reverse and vacate their civil rights convictions.

Criminal liability on the civil rights convictions turned on whether their actions were subject to qualified immunity. The court today held that they were protected by qualified immunity, even though their actions had been clearly illegal in the Third Circuit for almost three decades, because there was not a robust consensus on the point among the rest of the circuits. It wrote, “The Supreme Court has suggested that a single binding case from the defendant’s jurisdiction is insufficient to give notice that certain conduct could lead to criminal punishment. See Carroll
v. Carman, 135 S. Ct. 348, 350 (2014).” But Carroll assumed for the sake of argument that a single prior decision could constitute clearly established law, and instead held that the case relied on there did not answer the question. So today’s holding appears, at least at first blush, to expand significantly the scope of qualified immunity.

Joining Scirica were Ambro and Siler CA6 by designation. Arguing counsel were Michael Levy of Sidley Austin for one defendant, Jacob Roth of Jones Day for the other, and Bruce Keller for the government.


Weitzner v. Sanofi Pasteur — civil — affirmance — Smith

The Third Circuit upheld a grant of summary judgment in favor the defense in a suit under the Telephone Consumer Protection Act, holding that the plaintiffs’ untimely claims were not subject to class-action tolling under American Pipe.

Joining Smith were McKee and Restrepo. Arguing counsel were Todd Bank of NY for the appellants and Carl Greco of Scranton for the appellees.

Judge Vanaskie will take senior status

Third Circuit Judge Thomas Vanaskie will take senior status on November 30, creating a new opening on the court for President Trump to fill. Judge Vanaskie became eligible to go senior earlier this month.

Judge Vanaskie’s seat will be the fourth seat on the court potentially filled by President Trump and the Republican-controlled Senate, and the third of the four previously occupied by a judge nominated by a Democratic president.

Huge development.

New opinion–NJ child-porn possession is not an aggravated felony

Salmoran v. AG — immigration — partial reversal — Greenaway

Today the Third Circuit held that a New Jersey conviction for possessing child pornography is  crime of child abuse but not an aggravated felony, meaning it supports removal but does not bar an application for cancellation of removal.

Joining Greenaway were Restrepo and Bibas. Arguing counsel were Matthew Archambeault of Philadelphia for the petitioner and Lindsay Dunn for the government.

New opinion — a district court got it wrong, but not wrong enough to grant mandamus

In re: McGraw-Hill Global Educ. Holdings — civil / contract / procedure — denial of mandamus — Smith

The introduction of today’s opinion:

These consolidated mandamus petitions require us to decide whether two professional photographers bringing separate copyright infringement actions are bound by a forum selection clause in contracts they did not sign. We conclude that the photographers are not bound because they are not intended beneficiaries of the agreements, nor are they closely related parties. Our conclusion means that one District Court got it right, and the other got it wrong. But mandamus is an extraordinary remedy. Because the erring District Court’s mistakes were not clear or indisputable, we decline to issue the writ.

Joining Smith was Hardiman; Roth dissented in part, arguing that the court should have corrected the erroneous ruling and that it should lower its mandamus standard in consolidated-petition cases. Arguing counsel were Beth Weisser of Fox Rothschild for the alleged infringers and Maurice Harmon of Harmon & Seidman for the photographers.

An intro to Twitter for lawyers on the fence about trying it

I started using Twitter the day the CA3blog site crashed.

In September of last year, I wrote something provocative here about a book by Judge Posner (“batshit crazy”)  that got a bazillion hits from readers on Twitter, enough hits to bring down the blog’s website. Until that day I’d been a proud Twitter hold-out, but crashing my humble blog got my attention.

Fourteen months, 2,466 tweets, and 1,093 followers later, I’ve learned a thing or two about Twitter. And though I’m very far from a Twitter guru, I thought it might be useful to share what I’ve learned for others—especially appellate lawyers like me—who don’t use Twitter and wonder if they should.

Twitter can be useful, and it can also be god-awful.

The useful:

  • it’s good for breaking news;
  • it’s hard to be beat for legal news that isn’t sexy enough for media coverage (like judicial-nominations developments and analysis, for example);
  • there’s a vibrant, welcoming online community of appellate lawyers who post there;
  • it’s a decent way to expand your professional network, especially if you’re lousy at cocktail-party banter; and
  • it’s a way to participate in the conversation on things you care about.

For myself, I’ve had some wonderful experiences on Twitter, interactions that I’d never have had any other way. Geeking out with a top conservative academic about circuit nominees, for example, or trading ideas about how to get better at oral argument. And through Twitter I’ve become friends with a slew of smart, decent women and men I’d never have run into otherwise. At its best, Twitter is glorious.

The god-awful:

  • it’s an addictive-by-design time-suck;
  • chances are it won’t get you one single case;
  • it brings out the worst in many of us; and
  • it makes it wonderfully easy for you to say something spectacularly stupid for the whole world to see.

Twitter is how I imagine cocaine: exhilarating at times, and an effective dopamine jolt, but in the long run, the more you try to get from it, the more it sucks from you.

So, can you enjoy useful Twitter while avoiding the god-awful? Maybe. Many do. But, honestly, I bet many regular Twitter users would say “probably not.”

Appellate types, Twitter will try to claw you in. You’re a professional arguer for god’s sake, so when someone you’ve heard of takes a jab at you, you’re going to want to swing back and show your stuff. And chances are you’re goal-oriented and competitive, so before you know it you’re eying your follower count and spending Saturday evenings trying to craft 280 characters of devastating wit. Ugh.

So, on that jolly note, here are a few thoughts on how to get started with Twitter, should you decide you want to.

Setting up your account. Use your real name unless you plan to just lurk or blow off steam. Anonymous accounts tend to get ignored. Compose your profile-page blurb with some care—other viewers will see it anytime they hover their mouse arrow over anything you post, so it’s the main thing many users will know about you.

Deciding who to follow. This part may seem daunting at first, but it’s actually the easiest part. Search for people you respect. You’ll find lots of lawyers, scads of law professors, and more or less every journalist and politician.

To get you started, nationally prominent appellate lawyers active on Twitter include George Conway, Walter Dellinger, John Elwood, Deepak Gupta, Neal Katyal, Kannon Shanmugam, and Laurence Tribe. A few others who’ve earned broad followings include Jonathan Adler, Howard Bashman, Adam Feldman, Susan Hennessey, Carissa Hessick, Orin Kerr, Leah Litman, Sean Marotta, Raffi Melkonian, Jaime Santos, and Ken White (@Popehat).

But, most of all: me.

Getting followers. Step one, follow the people you want to follow you, and many will follow you back. Find users like you, look at their followers (click on their name, and then on their profile page click on “followers” near the top), and go nuts. Step two, interact with some appellate-oriented folks who tweet a lot and have a lot of followers. Respond to their tweets, say something nice, disagree intelligently, whatever. Step three—and this is the one that actually matters—be helpful and interesting. If you add value, people will find you.

Avoiding professional self-immolation. Twitter is public, dummy. After you’ve drafted a tweet but before you hit the tweet button, ask yourself, “Would I be cool with this being quoted in the Washington Post?” And, “Could this be the basis for a bar complaint?” Try not to post when you’re angry, or enjoying a delicious double IPA. Don’t aim to humiliate anyone, especially if they’re less powerful than you. Err on the side of concealing your inner dumbass.

Bottom line, do I think you should start using Twitter? No, I don’t. It’s absolutely not necessary for your career, and it could well hurt more than it helps. You almost certainly stare at your phone too much as it is, for heaven’s sake.

But if you’re inclined to try it anyway, by all means join the fun.

Two new opinions, one puzzling

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.


ABA rates Matey “Qualified”

The American Bar Association Standing Committee on the Federal Judiciary released its rating for Third Circuit nominee Paul Matey today, finally, rating him “Qualified.” The committee’s vote was not unanimous, with a minority of the committee rated him “Not Qualified.”

I suspect today’s announcement, coupled with yesterday’s Senate hearing, assures that, barring some new left-field development, Matey will be confirmed to the Third Circuit’s last open seat.

The Third Circuit posts a bunch of new argument videos, including the sanctuary-cities case

The Third Circuit has posted video of thirteen new oral arguments, available on its website at this link. There are a number of high-interest cases in the new batch, in particular the argument between Neal Katyal and the government in the Philadelphia sanctuary-cities appeal that I gushed over here, City of Philadelphia v. Attorney General, video here.

Two new opinions, including an impressive one by Judge Bibas

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.

Matey gets his Senate hearing, finally [updated]

This morning the Senate Judiciary Committee held its hearing on the Third Circuit nomination of Paul Matey, some seven months after his nomination. A link to video of the hearing is here.

Oddly, the ABA still has not released its rating for Matey.

I haven’t had a chance to watch the hearing video yet and will update this post once I do. Looks like Senator Booker expressed unhappiness over the White House’s lack of consultation on the nomination.

UPDATE: here is a sampling of media coverage of Matey’s hearing:

  • “Chris Christie attorney general preview? Senate grills court nominee about NJ scandals,” link
  • CNN: “Former Christie lawyer grilled on Bridgegate ties in Judiciary nomination hearing,” link
  • Courthouse News: “Third Circuit Nominee Feds Off Questions About Christie Antics,” link
  • Law360, “No Bridgegate Role, 3rd Circ. Pick Says Of Work For Christie,” link

New opinion

US v. McClure-Potts — criminal — affirmance — Greenaway

The Third Circuit today affirmed a criminal conviction for Social Security fraud, rejecting the defendant’s arguments that (1) she should have received a Sentencing Guidelines reduction for frauds committed “other than for profit” despite having received government benefits, (2) certain factual findings by the judge at sentencing were clearly erroneous, and (3) the court erred in calculating the loss amount used to set her Guidelines range.

Joining Greenaway were Ambro and Chagares. Arguing counsel were Fritz Ulrich of the MDPA federal defenders for the defendant and Stephen Cerutti of the MDPA US Attorney’s office for the government.

Some thoughts on yesterday’s remarkable oral argument in the Philadelphia sanctuary-city appeal

Yesterday afternoon the Third Circuit held oral argument in City of Philadelphia v. Attorney General United States, a blockbuster appeal about whether the Trump administration can withhold law-enforcement grant money from Philadelphia to compel the city to assist with deporting immigrants. Thanks to a nick-of-time extension, I was able to attend the argument in person.

Here’s the just-posted link to the argument audio. (Here’s hoping the court chooses to post the video, too. [UPDATE: they did! It’s here.])

The panel was Judges Ambro, Scirica, and Rendell. Arguing for the government was Katherine Allen, a civil appellate attorney at the Department of Justice, and appearing for the city was Neal Katyal, a partner at Hogan Lovells and former Acting Solicitor General. Given all that, I expected an extraordinary oral argument, and extraordinary it was.

The argument was preceded by a comment by Judge Ambro that would seem baffling in some courts, but not here. Sounding a bit sheepish, he explained that the panel would actually be sticking at least roughly to the 30-minutes-a-side time limit. (Two of the judges had an event to attend afterwards.)  “Normally this panel’s M.O.,” he explained, “is to go on forever.”

Katyal is one of the most accomplished Supreme Court advocates alive, and I hadn’t seen one of his arguments before, so I was eager to watch him in action. I left with my jaw on the floor. To wit:

  • I’ve written before about the right tone for appellate argument, and how hard it is to achieve. In my view, Katyal’s tone was pitch-perfect throughout. One little example: he acknowledged up front that a particular point was the hardest part of his argument and then proceeded to defend it. (This is 53:52 through 56:30 in the audio file.) Sounds easy, but in the heat of the moment few lawyers strike that balance well.
  • A circuit panel argument may be small potatoes for a lawyer who’s argued three dozen Supreme Court cases, but you’d never have known it. He was emphatically not coasting on reputation and talent. At one point he referred to a point Judge Rendell had made during an oral argument the day before, and afterward he tweeted that he’d sat in on several Third Circuit arguments this week. That’s a concrete expression of commitment to the case and respect for the court. If a guy who was on TV a couple days before his argument isn’t too busy to prepare that thoroughly, what’s our excuse?
  • Katyal plainly went in with the goal of emphasizing that his positions had been adopted by the prior courts to have considered them. Lesser advocates would try to accomplish that goal with one sledgehammer swing, something like “the government’s frankly outrageous position has been completely and utterly rejected by every single court to consider it!” Katyal took a different approach. Instead of bombast, he used timing and elegant repetition, referring to the other courts’ rulings in his opening, his closing, and at his crescendo points throughout. David Frederick‘s superb book Supreme Court and Appellate Advocacy calls this “The Mantra,” and Katyal’s argument was an elegant model of how to do it effectively.

I could go on, but perhaps I sound like enough of a swooning teenager already. I haven’t talked about Allen’s argument here, but it was very high quality as well. If you’re an appellate lawyer looking to get better at oral argument, be sure to give this one a careful listen.

Judge Ambro closed the argument by observing how well both advocates had argued and what a privilege it was to have them, and I agree entirely.

New opinion — Third Circuit rejects preemption application in high-profile plane-crash suit

Sikkelee v. Precision Airmotive — civil — reversal — Shwartz

After the pilot of a small airplane died in a plane crash, his widow sued the manufacturer of the plane’s engine, asserting state-law strict liability and negligence claims. The district court ruled that the claims were barred under conflict preemption and, alternatively, that the defendants were entitled to summary judgment under state law. Today, a divided Third Circuit panel reversed on both grounds in an opinion that helpfully summarizes the baroque law of preemption. Broadly speaking, the engine manufacturer argued that the suit should be barred because the design of its engine was dictated by the FAA, and the panel majority rejected that argument based on its view that the manufacturer in fact was able to modify the design.

Notably, the court observed in a footnote that the district court had repeatedly referred to a settlement that was irrelevant to any of the legal issues, and the court expressed its “hope [that] the District Court’s analysis and tone were not influenced by it.”

Judge Roth dissented on the preemption holding, arguing that the majority “takes a piecemeal approach to the Supreme Court’s impossibility preemption precedents” and “misframes the applicable regulatory regime.”

Joining Shwartz was Rendell, with Roth dissenting in part. (Thus making this the sadly rare Third Circuit panel comprised entirely of women.) The eminent arguing counsel were Tejinder Singh of Goldstein & Russell for the widow and Kannon Shanmugam of Williams & Connolly for the manufacturer. Audio of the argument is here.


Matey’s questionnaire posted

The questionnaire prepared by Third Circuit nominee Paul Matey has been posted on the Senate Judiciary Committee’s website. A link to the questionnaire is here.

Unsurprisingly, Matey’s questionnaire indicates that his selection process began with a call from then-Governor Chris Christie informing Matey that he would recommend him to the White House for a judgeship.

I posted last week that Matey’s SJC hearing reportedly will be held November 14. He has not received his ABA rating yet and, to my knowledge, neither New Jersey senator has announced whether he will return his blue slip for Matey’s nomination.

Matey was nominated by President Trump in April to fill the opening created when Judge Fuentes took senior status in July 2016.

Matey’s Senate Judiciary hearing reportedly coming soon

The Senate Judiciary Committee intends to hold a hearing on November 14 for Third Circuit nominee Paul Matey, according to Ed Whelan on National Review (link). According to the report, the committee aims to report his nomination to the Senate floor in early December. The hearing is not listed on the Senate Judiciary Committee’s online hearing calendar.

Judge Porter receives his commission

Judge David Porter, confirmed by the Senate on October 11, took his judicial oath and received his commission on October 15. He is now officially a Third Circuit judge. He has the rare privilege of serving alongside the judge he clerked for, Chief Judge Smith.

Judge Porter becomes the Court’s 13th active judge, filling the opening created when Judge Fisher took senior status in February 2017. One open seat remains on the court, the one created when Judge Fuentes took senior status in July 2016 for which Paul Matey was nominated the same day Judge Porter was.

Judge Porter’s confirmation vote (50 to 45) was the closest in the Third Circuit’s recent history, and the closest ever I suspect.

Judge Porter is 52, making him the third-youngest member of the court after Judges Bibas and Krause. He’s only one year younger than Judge Hardiman, who has been on the court for over a decade.

My congratulations again to Judge Porter, and I look forward to seeing him in action one day soon.

David Porter is confirmed to the Third Circuit [updated]

David Porter’s Third Circuit nomination was just confirmed by the Senate. The announced vote was 50 to 45.

Congratulations, about-to-be-Judge Porter!

Update: the vote was announced shortly before it occurred. Apparently Porter’s nomination was included in a package that Senate Democrats unanimously allowed to go forward as part of a deal to allow Senators to go home and campaign. I’m quite surprised that Democrats agreed to include Porter’s nomination in the deal, given strong opposition to his nomination by Senator Casey and liberal groups. Either way, Porter’s wait is over and he’ll be a Third Circuit judge once he takes the oath.

Hardiman clerk set to make Supreme Court law-clerk history

A decade ago, Isaac Lidsky went from clerking for Third Circuit Judge Thomas Ambro to becoming the Supreme Court’s first-ever blind law clerk, clerking for Justices O’Connor and Ginsburg.

Next year, Laura Wolk, who is clerking for Third Circuit Judge Thomas Hardiman, will reportedly become the Supreme Court’s first-ever blind female law clerk, hired to clerk for Justice Thomas.

Here is an inspiring recent profile of Wolk from the Notre Dame law school website. (She also was interviewed in 2016 by the Catholic website Crux, here.) In the profile, she discusses clerking for Judge Hardiman (as well as DC Circuit Judge Janice Rogers Brown):

“I have had the great fortune to clerk for two judges who are not only brilliant jurists, but also people of paramount integrity,” she said. “My professional skills and the development of my own legal philosophy have benefited immensely from working with Judge Brown and Judge Hardiman, and I am sure that I will put what I have learned in this regard into practice every day.”

The profile also notes that she took up running with Judge Hardiman (as his clerks are famously wont to do) and plans to run a half-marathon with the Judge and her co-clerks this spring.

Mighty impressive.

Hat tip: I learned about Wolk from David Lat’s article on Scotus-clerk hiring yesterday on Above the Law, link here. Lat’s article also notes that Zachary Savage, who clerked for Judge Scirica, is clerking this term for Justice Kagan.

Third Circuit grants en banc rehearing in juvenile-sentencing case [updated]

The Third Circuit yesterday granted rehearing en banc in a criminal case, United States v. Corey Grant, 16-3820, and set oral argument for February 20. The order is here. This is the court’s second en banc grant this week, joining the TSA-liability case Pellegrino, noted here.

Here is my write-up of the now-vacated Grant panel decision, which held that a de facto life sentence of 65 years was unconstitutional under Miller v. Alabama. The opinion stated that it joined three circuits against one on the de facto-life issue. The panel was unanimous on that point, while Judge Cowen dissented on the panel’s denial of relief on an additional sentencing-package ground. Greenaway was the author joined by Cowen and Padova EDPA.

Today’s order doesn’t specify whether the grant was spurred by the Miller issue or the sentencing-package issue, and I haven’t gone hunting on Pacer to see what the parties filed, but my guess is it’s about the Miller issue.

Update: a helpful reader pointed out what I should have noticed myself: the order states that it’s granting the government’s rehearing petition. This shows what I’d originally only suspected, that the en banc issue is the Miller issue.

Third Circuit grants rehearing en banc in TSA screener liability case

The Third Circuit this morning granted rehearing en banc in Pellegrino v. TSA, setting argument for February 20. A link to the order is here.

My summary of the now-vacated panel decision, in which the panel majority held that the government is immune from suit for the intentional torts of TSA airport security screeners, is here. The panel split was Judges Krause and Scirica in the majority with Judge Ambro dissenting.

Judge Barry named in New York Times story alleging Trump family tax fraud [updated]

The New York Times today posted a detailed investigative article asserting that President Donald Trump engaged in questionable tax schemes in the 1990s, “Including outright fraud.” The story, by David Barstow, Susanne Craig, and Russ Buettner, is here.

Third Circuit Judge Maryanne Trump Barry, a senior judge on inactive status, is named in the article. According to the story, she along with her two brothers filed a tax return on their father’s estate that “vividly illustrates the effectiveness of the tax strategies devised by the Trumps in the early 1990s,” “[r]ecycl[ed] … legally dubious techniques,” “dodged tens of millions of dollars in estate taxes,” “aggressively discounted … appraisals,” “appear[ed] to have hidden key facts from the I.R.S.,” “drastically understat[ed] the value of apartment complexes and shopping centers,” and “made no mention of” two significant assets.

In the story, Judge Barry denied comment and President Trump’s lawyer “defended the tax returns filed by the Trumps.”

This is a stunning development. More to come on this story, I’m sure. As readers know, I’ve long held Judge Barry in high regard. The allegations are quite serious, but I don’t know what to make of this yet and I believe she’s earned our circumspection until we know more.

A blog update

Since I started this blog back in 2014, one of the things I’ve done is post summaries of all published Third Circuit opinions as they’re issued, normally the same day. But over the past several days I haven’t been doing that. To be honest, like many of you I got swept up in the drama surrounding the Supreme Court nomination of Brett Kavanaugh. And, more broadly, I’ve always debated with myself whether the time I spend writing all those case summaries is worth it to my readers and to me, and those debates have gotten louder as my law practice continues to grow. So, as I write this, I’m still undecided about whether this is just a brief hiccup or a change of course.

In the meantime, those wishing to monitor the court’s new opinions should check the court’s website directly, here, and those wishing to monitor my opinions is invited to follow me on Twitter at @CA3blog.

Third Circuit establishes a new award named after Joe Biden to honor service to justice and the courts

The Third Circuit announced today that it has created a new award, the Joseph R. Biden, Jr. Award for Exemplary Service to the Third Circuit, and Biden himself will be the first recipient. Chief Judge D. Brooks Smith will present the award at a judges’ meeting on October 18 in Wilmington, Delaware.

The new award “recognizes outstanding service in promoting the cause of justice and the work of the courts within the Third Judicial Circuit.” Future recipients will be announced at the circuit conference.

Chief Judge Smith gave this statement:

I am extremely pleased that Vice President Biden has agreed to accept the inaugural award which will bear his name. As a veteran U.S. Senator and as a former Senate Judiciary Committee chairman, Vice President Biden has for decades been a friend, supporter, and defender of an independent federal judiciary. Over those years, his commitment to the courts and judges within the Third Circuit has been unflinching. This is a small way for the Third Circuit family to say ‘thank you.’

(Do I think it’s irrelevant that Biden was a leading Senate opponent of Chief Judge Smith’s own nomination? No, I do not.)



Third Circuit cancels upcoming en banc arguments

On Friday, the Third Circuit entered orders in the two cases that had been scheduled en banc oral argument on October 10, which I previously discussed here, announcing that the arguments would not happen on that date and that the court would decide at some later date whether to hold arguments in these cases on the next en banc date, February 20, 2019. The orders did not provide the reason(s) for this unusual change of course.

Two new opinions, including a sledgehammer affirmance of attorney fee denial, sanction, and disciplinary referral

Young v. Smith — civil / attorney fees and sanctions — affirmance — McKee

Hard though it is to believe, not every lawyer reads or heeds my advice not to act as counsel for an appeal in which their own conduct is at issue.* It happened again in this case, and it ended spectacularly badly for the lawyer, Cynthia Pollick: flat denial of her request for over $700,000 in attorney’s fees, plus a $25,000 sanction, plus a disciplinary-board referral.

Among the lawyer’s many expensive mistakes, per the opinion:

  • seeking $733,002.23 in fees after a $25,000 settlement;
  • submitting a bill that was 44 single-spaced pages of teeny tiny type;
  • conducting herself at the fee hearing in a manner that the district judge said “transported [him] to a universe devoid of legal principles and fundamental notions of relevance,” “strange and obstreperous conduct” that “fl[ou]ted any semblance of propriety and decorum”; and
  • arguing she was free to ignore two prior admonitions for her billing practices because those rulings had been affirmed in decisions that were non-precedential.

The court held that 42 USC § 1988(b) permits courts to deny outrageously excessive and conscience-shocking fee requests in their entirety, and held that this standard was met by counsel’s “grossly excessive and absurd, but also fraudulent” request.

The opinion closed by emphasizing the uniqueness of the case and that blanket fee denials should be “exceedingly rare.”

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

* To be clear, I’m not suggesting that new counsel is any sort of cure-all. It didn’t seem to help earlier this year in Clemens, for example. But new counsel are virtually always going to be in a stronger position to defend district-court counsel’s actions.


Russell v. Superior Court Marshal — civil rights — partial affirmance — Krause

Today’s opinion begins powerfully: ” In this tragic case, after Appellee Jamila Russell enlisted the help of the Virgin Islands Superior Court and its Court Marshals with her truant teenage son, L.T., Deputy Marshal Chris Richardson allegedly shot him at his home, unarmed and mostly undressed, rendering him a quadriplegic.” The Third Circuit held that quasi-judicial immunity does not extend to a suit challenging the manner in which a judicial officer executes a court order. The court also affirmed denial of qualified immunity but ordered dismissal of a gross-negligence claim based on sovereign immunity.

A practice note: the opinion notes disapprovingly that the appellants “take it upon themselves to offer additional clarity by pointing to extra detail found not in the complaint but rather in the Marshals’ own affidavits and an internal incident report,” detail the did not consider in this interlocutory appeal from denial of dismissal.

Joining Krause were Roth and Fisher. Arguing counsel were Gordon Rhea of South Carolina for the mother and her son and Paul Gimenez from the Office of General Counsel for the Superior Court of the Virgin Islands for the defendants.


Three new opinions

The Third Circuit issued three published opinions yesterday.

US. v. Rivera-Cruz — criminal — affirmance — Hardiman

The introduction ably explains:

Reynaldo Rivera-Cruz appeals an order of the United
States District Court for the Middle District of Pennsylvania
denying his motion for a sentence reduction. The relevant
statute (18 U.S.C. § 3582(c)(2)) authorizes sentence
reductions for defendants initially “sentenced to a term of
imprisonment based on” a United States Sentencing
Guidelines (USSG) range that was later lowered by the
United States Sentencing Commission. In Koons v. United
States, 138 S. Ct. 1783 (2018), the Supreme Court held that
such relief is unavailable to a defendant whose Guidelines
range is “scrapped” in favor of a statutory mandatory
minimum sentence. Id. at 1787–88. We now hold that the
same is true where, as here, a statutory maximum displaces
the defendant’s Guidelines range.

In Koons, a statute set the available sentence completely outside the Guidelines range, by requiring a minimum that was above the top of the range. Here, the statute also took the available sentence completely out of the Guidelines range, but by setting a maximum that was below the bottom of the range. The court reasoned that the “distinction is immaterial” here.

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


Schultz v. Midland Credit Mgmt. — civil / FDCPA — reversal — Vanaskie

A debt collector sent out form collection letters stating that forgiveness of debt may be reported to the IRS. But some of the recipients of that letter owed less than $600, and the IRS doesn’t require reporting of debt discharges under $600. One such recipient filed a putative class action suit against the debt collector under the Fair Debt Collection Practices Act. The district court dismissed, but the Third Circuit reversed, cautioning that the convenience of using form letters does not excuse compliance with the FDCPA.

Joining Vanaskie were Hardiman and Shwartz. Arguing counsel were Andrew Milz of Flitter Milz for the recipients and David Schultz of Chicago for the debt collector.


Judge v. Shikellamy School Dist. — civil — affirmance — Hardiman

A school principal was arrested on charges of drunk driving and resigned as principal but later sued alleging constructive discharge. Concluding that her resignation was voluntary, the Third Circuit affirmed dismissal of her suit. The opinion explained that the court had not explained how to analyze constructive-discharge claims, and the court adopted the Eleventh Circuit’s five-point framework.

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

Two new opinions

US v. Thomas — criminal — partial affirmance — Greenaway

A media company intervened in a criminal case involving aid to a foreign terrorist group, seeking to unseal records from the case including a guilty-plea document and materials involving surveillance discovery. The district court denied the request on national security grounds. Today, the Third Circuit affirmed as to the plea document, recognizing a presumptive First Amendment right to access but holding that the presumption was overcome here, and remanded for the district court to reconsider redaction of the rest.

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


Reese v. Warden — criminal — Fuentes — affirmance

The Third Circuit today held that a federal prisoner may not challenge his pretrial detention through a habeas petition under 28 USC § 2241. The ruling was a bit unusual in that the court noted that the issue was novel in the circuit, decided it with a signed precedential opinion, and agreed with two sister-circuit cases from the 80’s, one of them per curiam — but it denied the pro se inmate’s request for counsel, summarily affirmed without full briefing, and ruled that no substantial question was presented.

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

Two new opinions

In re: Hertz Global Holdings — civil / securities — affirmance — Jordan

The Third Circuit today affirmed a district court’s ruling that plaintiffs had failed to plead a “strong inference of scienter” for their claim under the Private Securities Litigation Reform Act. The opinion lays out in devastating detail the allegations that Hertz overstated its profits, but ultimately concludes that likeliest inference from this evidence is that the Hertz-executive defendants were “just bad leaders,” not that they engaged in systemic fraud.

Joining Jordan were Ambro and Hardiman. Arguing counsel were Douglas Wilens of Florida for the plaintiffs, Adam Unikowsky of Jenner & Block for Hertz, and Gregory Markel of New York for one of the executives.


Walker v. Senior Deputy Coffey — civil rights — partial affirmance — Roth

The Third Circuit today held that a prosecutor and an agent were entitled to qualified immunity for using a facially invalid subpoena to get a woman’s work emails, because the woman didn’t have a clearly established right to privacy for the content of her work emails, at least where the employer had authority over the emails and consented to turn them over in response to the invalid subpoena. The opinion notes the Court’s “dismay[]” at the prosecutor’s and agent’s action here: their subpoena left the date, time, place of production, and party blank. (Assistant General Counsel at Penn State Katherine Allen, identified in the opinion, complied with it anyway.)

My two cents: I have no view on whether applying qualified immunity here is a correct application of controlling law, but I believe the outcome here illustrates the awfulness of qualified immunity. Law enforcement officials get to serve cartoon subpoenas with impunity if the law isn’t also clear enough yet that what they get with the cartoon subpoenas was constitutionally protected? If it’s clear they used wrongful means to get something, that would be all qualified immunity requires in my world.

The court remanded to allow the plaintiff to amend her Stored Communications Act claim.

Joining Roth were Jordan and Stearns D. Mass by designation. Arguing counsel were Geoffrey Johnson of Jenkintown for the woman and John Knorr III for the state.

Court withdraws “prematurely filed” opinion

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.

New opinion — Third Circuit revives union member’s 1st Amendment free-association claim [update: never mind]

[Update:  The court removed the opinion from its website. On the docket a clerk’s order was entered, stating, “The Court’s opinion and judgment dated September 19, 2018, having been prematurely filed is hereby VACATED., filed.” Thanks to a helpful reader for alerting me.]


Palardy v. Township of Millburn — civil — partial reversal — Siler CA6 by designation

The Third Circuit today reversed a district court’s grant summary judgment against a police officer who alleged that he was not made police chief due to his union membership. The court joined a circuit minority on the question of whether recent Supreme Court cases limiting speech protections for public employees to matters of public concern also apply to association claims, holding that they do not. Union membership, the court held, is First-Amendment-protected conduct.

Joining Siler were Ambro and Scirica. Arguing counsel were Dennis Durkin of Roseland, NJ, for the former police officer and Littie Rau of Ruderman Horn for the township.

New opinion — Third Circuit upholds denial of disabled student’s IDEA suit

K.D. v. Downingtown Area School Dist. — disability — affirmance — Bibas

The Third Circuit today sided with a school district in appeal over whether the district court complied with the Individuals with Disabilities Act and two other statutes. The plaintiff, supported by a bevy of disability-rights amici, argued that the district (which also garnered substantial amicus support) had failed to develop adequate individual education plans for for an elementary-school student with ADHD, dyslexia, and other disabilities struggling to keep up in school.

Joining Bibas were Greenaway and Restrepo. Arguing counsel were Catherine Reisman of Reisman Carolla for the student and Karl Romberger, Jr. of Sweet Stevens for the district.

New opinion, or rather newly precedential

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.

En banc Third Circuit will wade into the crime-of-violence quagmire in two oral arguments next month

The Third Circuit granted rehearing en banc in two related criminal cases that will be argued on October 10. The cases are US v. Santiago, 16-4194, and US v. Harris, 17-1861.

The appellant in Santiago summarized the issue thus:

Whether a defendant’s prior New Jersey conviction for assaulting a law enforcement officer is a “crime of violence” under the elements clause of the Sentencing Guidelines

And one appellant in Harris:

Does Appellant’s ACCA-enhanced sentence violate his right to due process of law because it relies on prior convictions for Pennsylvania robbery and aggravated assault that are not categorically violent felonies under the Armed Career Criminal Act?

So if Johnson, Descamps, Mathis, and the categorical approach are your cup of tea, you won’t want to miss en banc argument day next month.

Judge Restrepo was “slightly hesitant” when the White House asked if he would consider a Third Circuit judgeship

A winning profile of Third Circuit Judge L. Felipe Restrepo appears today on Al Día, by John McGuire. A link is here, and the entire profile is well worth your time.

One highlight is Judge Restrepo describing his reaction to being nominated for a Third Circuit seat:

Restrepo went on to become a U.S. magistrate judge, and then President Obama nominated him to be a district court judge, an experience that he referred to as “very flattering and very humbling.” When the White House called him again to ask if he would consider a circuit court appointment, the judge admits he was slightly hesitant at first.

“It’s nothing I ever pursued because I really didn’t fancy myself an appellate lawyer,” Restrepo recalled. “But I have a world of respect for President Obama, and when they call and ask you to do something like this, it’s tough to say no.”


Third Circuit affirms bankruptcy court’s belated switch that cost one side $275M

In re: Energy Future Holdings — bankruptcy — affirmance — Greenaway

A bankruptcy court order granted reconsideration about a year after approving a merger, and under the new ruling the would-be merging corporation no longer was entitled to a $275 million termination fee. The would-be merger appealed, of course, arguing that the reconsideration motion was untimely and wrong on the merits. Today, a divided Third Circuit panel affirmed.

Joining Greenaway was Fuentes; Rendell dissented, arguing that reconsideration was granted without a clear error to correct and that the bankruptcy court’s analysis of the merits was flawed. Arguing counsel were Howard Seife of Norton Rose for the would-be merger, and Douglas Hallward-Driemeir of Ropes & Gray and Michael McKane of Kirkland & Ellis for the various appellees.

Three new opinions

Rinaldi v. US — prisoner rights — partial reversal — Krause

In a significant prisoner case, a divided Third Circuit panel today ruled in favor of a prisoner whose suit alleged that USP Lewisburg administators retaliated against him for filing inmate grievances by moving him into a cell with another prisoner known for assaulting his cellmates. The prisoner did not to administratively exhaust that claim with prison officials before filing suit—understandably!—but the government chose to argue that it should be dismissed for failure to exhaust and the district court agreed. Today the Third Circuit (per unanimous panel) disagreed, announcing the standard for when a prisoner’s failure to exhaust is excused by administrator’s intimidation and remanding for the district court to apply this standard.

The panel split over a second exhaustion issue. As to another of the prisoner’s claims, he failed to follow the prison’s grievance procedures, but the prison considered the merits of this claim anyway. The panel majority held that, with the PLRA as with habeas, a claim is exhausted even if it was not properly presented if it was considered anyway and denied at the highest level of review. On this point, Judge Scirica dissented.

Finally, the unanimous panel affirmed the district court’s dismissal of the prisoner’s claim under the Federal Tort Claims Act, holding that the FTCA’s discretionary-function exception to liability included prisoners’ challenges to BOP housing and cellmate assignments.

Joining Krause was Fuentes and Scirica in part, with Scirica dissenting in part. Arguing counsel were Tarah Ackerman of Allegheny Technologies (formerly of Jones Day) for the inmate, appointed by the court pro bono, and Timothy Judge of the US Attorney’s office in Scranton for the government.


Jutrowski v. Township of Riverdale — civil rights — partial affirmance — Krause

Several state troopers and local police officers participated in arresting a man for drunk driving. During the arrest, one of the officers kicked the man in the face while he was on the ground, hard enough to break the man’s nose and eye socket. But the officers had the man’s face  pinned to the pavement when the bone-breaking kick was delivered, so the man didn’t see who did it. The officers — Riverdale police officers Travis Roemmele and Christopher Biro, NJ state troopers Jeffrey Heimbach and James Franchino–all denied that they were the one who kicked the man, and–critically–they all denied having seen who did. (Officer Biro’s dashcam video “allegedly did not record.”) The man sued for excessive force, and, today, the Third Circuit rejected his excessive force claim:

We are now called upon to outline the contours of this “personal involvement” requirement in § 1983 cases and to consider its application when a plaintiff who indisputably suffered a constitutional injury at the hands of one officer comes up against to the proverbial “blue wall of silence.” Despite the unfortunate situation created for plaintiffs like Jutrowski who are unable to identify their attackers through no fault of their own, we hold that a plaintiff alleging that one or more officers engaged in unconstitutional conduct must establish the “personal involvement” of each named defendant to survive summary judgment and take that defendant to trial.

Unfortunate situation indeed. Because the man couldn’t identify after discovery which of the officers present delivered the kick, the Third Circuit affirmed dismissal of his excessive force claim against them all. On the bright side:

Nonetheless, where a plaintiff adduces sufficient evidence of an after-the-fact conspiracy to cover up misconduct, even of an unidentified officer, he may be able to state a claim under § 1983 for the violation of a different constitutional right: the due process right of access to the courts. Such is the case here.

Joining Krause were Jordan and Greenberg. Arguing counsel were Robert Degroot of Newark for the kicked man, Anthony Seijas of Cleary Giacobbe for the Riverdale defendants, and Matthew Lynch of the NJ AG’s office for the state-trooper defendants.


Clemens v. New York Central Mutual Fire Insurance — civil — affirmance — Greenaway

The introduction, minus cites:

After a jury awarded him $100,000 in punitive damages under the Pennsylvania Bad Faith Statute, 42 Pa. Cons. Stat. § 8371, Appellant Bernie Clemens submitted a petition for over $900,000 in attorney’s fees from Appellee New York Central Mutual Fire Insurance Company (“NYCM”). The District Court denied this petition in its entirety, reasoning that it was not adequately supported and that the requested amount was grossly excessive given the nature of the case. Finding no abuse of discretion, we will affirm and, in doing so, take the opportunity to formally endorse a view already adopted by several other circuits—that is, where a fee-shifting statute provides a court discretion to award attorney’s fees, such discretion includes the ability to deny a fee request altogether when, under the circumstances, the amount requested is “outrageously excessive.”

The opinion hammered counsel’s failure to maintain contemporaneous time records for most of the litigation (the court expressed astonishment that counsel sought recovery of over $25,000 for 64.5 hours spent reconstructing their time records), submission of time entries like “Other” and “Communicate,” and submission of 562 hours of otherwise unexplained time for trial preparation for the one-week trial.

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

Three new opinions [updated]

Update: on October 30 the panel granted the Commonwealth’s petition for panel rehearing and vacated the original opinion, with a new opinion and judgment to come.

Workman v. Superintendent — habeas corpus — reversal — Fuentes

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.


US v. Renteria — criminal — affirmance — Fuentes

The Third Circuit today split with the Second Circuit in holding that venue for a conspiracy conviction does not require proof that it was reasonably foreseeable that conduct in furtherance of the conspiracy would occur in the venue district, affirming a defendant’s conviction and sentence.

[Disclosure: I assisted counsel for the defendant by being a judge for her oral argument moot.]

Joining Fuentes were Greenaway and Rendell. Arguing counsel were Susan Lin of Kairys Rudovsky for the defendant and Bernadette McKeon of the EDPA U.S. Attorney’s office for the government.



Trinity Industries v. Greenlease Holding Co. — civil — partial reversal — Jordan

One company built railcars at a particular site for over 75 years, then another company bought the site and built railcars there for another 14 years. A state investigation of the site revealed illegal waste dumping on the site, resulting in a criminal prosecution and almost $9 million in clean-up costs. The two companies disputed how the clean-up costs should be allocated between them under CERCLA and an analogous state law. The district court allocated 62% of the clean-up cost to the first company; today, the Third Circuit vacated and remanded, holding that the district court’s allocation methodology was speculative because it materially deviated from the second company’s expert’s allocation methodology.

Joining Jordan were Chagares and Hardiman. Arguing counsel were Steven Baicker-McKee of Babst Calland for the first company and Paul Steinman of Eckert Seamans for the second.

Two new opinions, including a significant FCRA consumer win

Long v. SEPTA — civil — partial reversal — Fisher

Philadelphia’s public-transit authority, SEPTA, violated the Fair Credit Reporting Act by failing to send job applicants who had prior criminal convictions copies of the background checks that it  relied on when it rejected their applications. The district court rejected the applicants’ FCRA claims on the ground that they had alleged only a bare procedural violation without any concrete injury such as an error in their background check.

Today, the Third Circuit reversed in part because “the FCRA does not condition the right to receive a consumer report on whether having the report would allow an individual to stave off an adverse employment action. Rather, the statute applies to all consumers.” As to standing, the court reiterated its recent caselaw “‘decidedly in favor of allowing individuals to sue to remedy violations of their statutory rights, even without additional injury.”

Joining Fisher were Chagares and Restrepo. Arguing counsel were Deepak Gupta of Gupta Wessler for the applicants and Elizabeth Malloy of Cozen O’Connor for SEPTA.


Lupu v. Loan City LLC — civil — partial reversal — Ambro

The Third Circuit today held that, under Pennsylvania law, a title insurer’s duty to defend an insured is assessed claim-by-claim by comparing the insurance contract to the complaint, rejecting application of the “in for one, in for all” rule.

Joining Ambro were McKee and Restrepo. Arguing counsel were Michael Coughlin of Kaplin Stewart for title insurer and Brett Messinger of Duane Morris for the insured.

Two new opinions, including a rare PLRA win with a rare dissent urging en banc rehearing

Brown v. Sage — prisoner rights — reversal — Fuentes

Today, a divided Third Circuit panel ruled in favor of a prisoner who argued that he should have been allowed to file suits in forma pauperis because he had not accrued three prior frivolous filings under the Prison Litigation Reform Act’s three-strikes view. Applying circuit precedent, the majority held that one of the prisoner’s asserted strikes did not qualify because the court had denied the IFP motion and dismissed the complaint as frivolous simultaneously. It also held that strikes that accrue after the filing of the complaint do not count under the three-strikes rule.

In a vigorous dissent, Judge Chagares argued that the majority ignored controlling statutory law and created a circuit split, and he urged the court to grant en banc rehearing:

My learned colleagues have applied the law of this Court, but that jurisprudence was superseded by statute over twenty years ago. Nevertheless, the majority has extended it,
thereby creating a circuit split, mandating adherence to an inflexible rule that many courts in this circuit have abandoned, and increasing litigation (and confusion) over what constitutes
a “strike” for purposes of 28 U.S.C. § 1915(g). I write separately because I believe that the Court should take this case en banc to align our jurisprudence with the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (the “PLRA”) and with the decisions of our sister Courts of Appeals. Adherence to our outdated and rigid twostep procedure — the prism through which courts in this circuit must now divine whether prior dismissals that occurred both in and out of this circuit constitute strikes — should be discarded in favor of the flexible and discretionary approach required by the PLRA.

Joining Fuentes was Smith; Chagares concurred in part and dissented in part. Arguing counsel for the prisoner was Judah Bellin, a recent Penn Law grad who handled the case through the school’s federal appellate externship program, pro bono, and for the government was Michael Butler.


US v. Gonzalez — criminal — affirmance — Chagares

After a man killed his son’s ex-wife, and then himself, in the lobby of a Delaware courthouse, prosecutors charged the son and his sister with stalking resulting in death and related counts. Both were convicted and sentenced to life in prison. (Their mother also was convicted, but she died while the appeal was pending.) They appealed their convictions and sentences on 13 different grounds, but today the Third Circuit affirmed. The opinion observed that the case was complicated and raised numerous issues of first impression, and effusively praised District Judge McHugh’s handling of the case.

Joining Chagares were Scirica and Rendell. Arguing counsel were Tieffa Harper of the Delaware federal defender for the son, Jeremy Ibrahim Sr. for the sister, and Jamie McCall for the government.

Two especially interesting new opinions

In re: Johnson & Johnson Talcum Powder Prods. — civil — affirmance — Smith

Today a divided Third Circuit panel ruled against a woman who brought a consumer class-action suit against a baby-powder maker. The plaintiff alleged that perineal use of the baby powder can lead to increased risk of ovarian cancer. Her legal theory was that she suffered an economic injury by purchasing a product that was unsafe, even if it was only unsafe to other consumers. The majority held that her allegations were legally insufficient: “buyer’s remorse, without more, is not a cognizable injury under Article III.”

Judge Fuentes dissented, acknowledging that the majority’s conclusion makes perfect sense in the abstract but arguing that it failed to recognize that a product’s overall safety often is a key to consumers’ decisions about whether to buy it. Many of us would be less likely to buy a product marketed as safe that gives lots of other people cancer, and companies presumably know that. So denying economic recovery here allows companies to profit from hiding the danger, by preventing recovery by the consumers who spent their money on a product they would never have bought had they known.

Joining Smith was Chagares, with Fuentes dissenting. Both opinions are outstanding. Arguing counsel were Timothy Blood of California for the consumer and Matthew Powers of O’Melveny & Myers for the baby-powder maker.


Tima v. AG — immigration — affirmance — Bibas

A Cameroonian man in the U.S. on an expiring student visa entered into a sham marriage with a U.S. citizen almost three decades ago. He was discovered and pled guilty to making a false statement about being married, but the government didn’t try to deport him at the time. So he moved on with his life, married a citizen over 20 years ago, and had three children, all U.S. citizens. In 2003, the government in its infinite wisdom started trying to deport him for marriage fraud and a crime involving moral turpitude, namely the marriage-fraud false-statement conviction. The man applied for a fraud waiver under 8 USC § 1227(a)(1)(H).

Today, the Third Circuit denied the man’s petition for review, holding that the fraud waiver did not apply to removal based on the moral-turpitude conviction. By its terms, the fraud waiver applies to “grounds of admissibility directly resulting from such fraud.” The gist seems to be that, while the conviction here seems to be “directly resulting,” it wasn’t a ground “of admissibility” because the crime occurred after his admission. Even though the court admitted that its interpretation rendered part of the statute surplussage, and admitted that the man’s argument on this point was “cogent,” it still found the statute’s meaning clear enough that the rule of lenity did not apply, based on evidence including the “technical meaning” of the word “paragraph” as opposed to sections, subsections, subparagraphs, clauses, and subclauses, in light of authorities like the House Legislative Counsel’s Manual of Drafting Style.

My respectful view: if I first found myself relying on some legislative counsel style guide to support my statutory interpretation, and next I were forced to admit that applying the rule against surplussage would defeat my interpretation, then, even though three other circuits have interpreted the statute the same way, I believe the rule of lenity would start sounding plausible. Plausible enough, at least, that explaining why it rejected it, to uphold the quarter-century-late deportation of a father of three, warranted more than the single sentence of reasoning the opinion gave it here.

Joining Bibas were Jordan and Scirica. Arguing counsel were Matthew Archambeault of Corpuz & Archambeault for the man and Karen Melnik for the government.

Judge Krause and Judge Vanaskie offer their views about the Third Circuit’s oral-argument rate

Two Third Circuit judges spoke yesterday at a CLE event on effective appellate advocacy, and they had some mighty interesting things to say about how the court is responding to criticism that it isn’t granting oral argument often enough.

Yesterday’s CLE was a tremendous event, sponsored by the Third Circuit Bar Association. (But I’m biased, since I’m on the 3CBA board and was one of the program’s organizers.) Judges Vanaskie and Krause presented on one panel, with David Fine moderating. The other panel was three dynamite appellate lawyers —Nilam Sanghvi, Craig Shagin, and Sara Solow, moderated by Tom Schmidt. I learned a lot, and all the attendees I spoke to afterwards were glad they came. Organizational boosterism aside, if you practice much in the Third Circuit, you really should make every effort to attend programs like this.

Okay, so here’s what the two judges had to say about oral argument rates. (If you’re new here, I have scads of prior posts about the issue, notably here and here.) This is a hot topic in these parts, so I’ll give a blow-by-blow account in as much detail as my notes and memory permit. [I’m no journalist, so if you were there and remember any of this differently, by all means please contact me!]

To put it in some context, this came up about halfway through the judges’ panel, I believe they discussed this topic at greater length than any other, and the judges seemed clearly to have come prepared to address it. The issue came up when Fine observed that the circuit’s rate had fallen from past years and asked the judges whether they saw the decline in arguments as positive or negative.

Judge Krause tackled it first, and she began, “We listen.” She said the judges have been hearing those in the bar (“Mr. Stiegler and others,” she said, and I blushed) who’ve raised the issue. She acknowledged at length the benefits of holding more arguments: to the parties, to the bar for professional development, to the public at large to see their judiciary in action. And, not least, to the nation itself, so that constituents, the bar, and the public understand the importance of separation of powers, balance of powers, and “an independent judiciary,” emphasis hers. So, she said, there are lots of reasons to have more arguments, and she emphasized that the judges of the court now discuss this issue regularly.

And, she explained, the number of Third Circuit oral arguments has in fact gone up. I was especially interested to hear this, as regular readers will know, because the AOC’s most recent public stats about this are sadly useless. She said that in 2016 the Third Circuit held 201 oral arguments, while in 2018 it held 255, an increase of almost 30%. (I haven’t independently confirmed that data, but I’m certain if she said it then it’s correct.) Other circuits’ recent argument numbers did not increase, she noted, which suggests that the increase was the product of the judges’ deliberate choice.

Finally, Judge Krause said that she expected the number of Third Circuit arguments to continue to increase. She said that judges are joining the court with recent experience in the bar who share that perspective, by which I believe she meant the bar’s perspective about the value of argument and the need for more of them.

Judge Vanaskie largely echoed Judge Krause’s comments. He agreed that “certainly” the judges have had discussions about the frequency of oral argument. He explained that deciding how many arguments to hold was a balancing act. When preparing for each argument, he said, the judges take an extremely deep dive into the case. It takes a lot work to be that well prepared, and doing it for every case the court decides isn’t feasible.

As it stands now, he said, every lawyer knows that when the court grants argument it is extremely important, that the panel is troubled by the case and not of one mind. And he believes holding argument in every case would be a mistake, because it would dilute its importance and add to the expense of an appeal for all clients.

Judge Vanaskie reiterated that the issue is under active consideration in the court. He said that at every judges’ meeting now there is some discussion about it. He said the judges are open to listening.

Finally, Judge Krause contrasted the Third Circuit’s practice to the Second Circuit’s, where argument is held in most cases but the lawyers sometimes get only five minutes. She asked whether (and I’m paraphrasing from memory here) arguments that short really help enough to justify their cost and said she did not believe so.

Fascinating and remarkable, and not, I suspect, the last word in this conversation.

Five new opinions

Five precedential opinions today! I was in Harrisburg today for a Third Circuit Bar advocacy CLE event with Judges Vanaskie and Krause, which was super but perhaps not perfectly timed for Five Opinion Day.


Preston v. Superintendent Graterford SCI — habeas corpus — affirmance — Rendell

Damien Preston was tried for third-degree murder, convicted, and sentenced to 20 to 40 years in prison. The Third Circuit today held that, at his trial, his constitutional right to confront the witnesses against him was violated when the prosecution introduced a witness’s prior statements to help convict Preston and the witness refused to answer any substantive questions on cross-examination. But, because this is a habeas corpus case, he lost anyway for opaque reasons.

Preston’s trial lawyer missed the Confrontation Clause issue, a blunder the opinion describes as “clearly substandard.” Then his direct appeal lawyer and his post-conviction lawyer did, too. Preston was able to overcome post-conviction counsel’s mistake based on Martinez v. Ryan. Significantly for habeas nerds, the court held that Martinez requires only trial counsel’s deficient performance, not prejudice, and that Martinez‘s substantiality requirement is the same as COA reasonable debatability. And he even proved that his trial counsel’s performance was deficient. But Preston lost in the end because the court held that he failed to show a reasonable probability that, but for counsel’s error, the outcome would have changed.

So, in the end, important good news for future defendants and habeas petitioners, but bad news for Mr. Preston.

Joining Rendell were Greenaway and Fuentes. Arguing counsel were Tom Gaeta of the EDPA federal defender (and former CA3 staff attorney) for the petitioner and Max Kaufman of the Philadelphia DA’s office for the Commonwealth.


Lee v. Sixth Mount Zion Baptist Church — civil — affirmance — Shwartz

When a church fired its pastor, the pastor sued for breach of contract. The district court granted summary judgment on the ground that deciding the claim would violate the Establishment Clause by entangling the court in religious doctrine, and today the Third Circuit affirmed.

Joining Shwartz were Roth and Rendell, a rare Third Circuit panel where all three judges are women. By contrast, all five lawyers listed in the caption for the parties appear to be men. Arguing counsel were Gregg Zeff of Zeff Law Firm for the pastor and Daniel Blomberg of Becket Fund for the church.


In re: Tribune Media — bankruptcy — affirmance — Ambro

The Third Circuit today affirmed a district court’s ruling rejecting employment discrimination claims brought by a former television station employee. The opinion’s conclusion aptly summarizes:

Younge challenges the Bankruptcy Court’s statutory and constitutional authority to decide his employment discrimination claims and asks if he can recover for an incident of racial harassment by Schultz, a co-worker at WPHL. We lack any basis to question the Court’s authority at this stage, as Younge never objected to it during bankruptcy proceedings
and instead knowingly and voluntarily submitted to the Court’s jurisdiction.

When we turn to the merits, we also see no reason to disturb the District Court’s decision affirming that of the Bankruptcy Court.  Although Schultz exhibited racial animosity toward Younge, we cannot impute liability to WPHL for a hostile work environment claim because we have no evidence that it had knowledge of Schultz’s racial bias at the time of the incident. Similarly, we cannot say that Younge was wrongfully terminated because WPHL provided a legitimate, non-discriminatory reason for his discharge. More importantly, its rationale was not pretextual because Younge and Schultz were both fired for engaging in the same conduct. Younge gives us no examples of similarly situated individuals who were disciplined more leniently for the same type of conduct. Without this type of evidence, we cannot rule in his
favor. Thus we affirm.

Joining Ambro were Scirica and Siler CA6 by designation. Arguing counsel were Timothy Creech of Philadelphia for the plaintiff and Robert Hochman of Sidley Austin for the station.


Vorchheimer v. Philadelphian Owners Assoc. — civil / disability — affirmance — Bibas

The Third Circuit affirmed dismissal of a suit brought under the Fair Housing Act by a woman with a disability alleging that her apartment building owners failed to accommodate her disability by rejecting her request to leave a walker in the lobby but offering alternative accommodations: ” Necessity is a demanding legal standard. For a housing accommodation to be “necessary” under the Act, it must be required for that person to achieve equal housing opportunity, taking into account the alternatives on offer.”

Joining Bibas were Hardiman and Roth. Arguing counsel were Stuart Lurie of Rosenthal Lurie for the woman and Christopher Curci of Freeman Mathis for the building owners.


Twp. of Bordentown v. FERC — civil / environmental — partial reversal — Chagares

Two New Jersey townships and an environmental group brought “a bevy of challenges” to  the approval of an interstate natural gas pipeline by FERC and New Jersey’s Department of Environmental Protection. The Third Circuit rejected their challenges to FERC’s approval, but remanded to the NJDEP because it misinterpreted federal law in denying the challengers’ request for a hearing. Not often do you see a 69-page opinion, complete with table of contents, in a case decided without oral argument.

Joining Chagares were Greenberg and Fuentes.

Three new civil-appeal opinions

US ex rel. Silver v. Omnicare — civil / qui tam — reversal — Chagares

The False Claims Act, which allows whistleblowers to sue for frauds against the government, has a provision that prevents FCA actions that rely substantially on allegations already known to the public. An FCA relator alleged a kickback scheme — that a pharmacy gave below-cost rates to one category of nursing home customers in exchange for favorable treatment of the pharmacy from the homes as to another category of customers. The district court granted summary judgment based on the public-disclosure bar, relying in part on public evidence that the unlawful practice occurred in the industry generally. Today, the Third Circuit reversed, holding that the suit was not barred by the public-disclosure bar because publicly-known facts did not point to specific fraudulent transactions by this specific pharmacy.

Joining Chagares were Vanaskie and Fuentes. Arguing counsel were Shauna Itri of Berger & Montague for the whistleblower and Michael Manthei of Holland & Knight for the pharmacy.


Delaware Riverkeeper Network v. Secretary, PA DEP — civil / environmental — affirmance — Hardiman

The Third Circuit today rejected an environmental group’s Clean Water Act challenge to a Pennsylvania natural-gas pipeline project. The court also distinguished a First Circuit ruling in holding that the state agency’s water-quality certification was final and appealable even though the administrative appeal of the certification is still pending.

Joining Hardiman were Jordan and Scirica. Arguing counsel were Aaron Stemplewicz of the Delaware Riverkeeper Network and Mark Freed of Curtin & Heefer for the environmentalists, Joseph Cigan III for the state, and John Stoviak of Saul Ewing for the pipeline builder.


Taksir v. Vanguard Group — civil / securities — affirmance — Chagares

An investor sued Vanguard, alleging that Vanguard advertised stock-trade commissions for certain customers of $2, but then actually charged $7. The district court rejected Vanguard’s argument that the class-action suit was barred by the Securities Litigation Uniform Standards Act, and, in an interlocutory appeal, today the Third Circuit affirmed.

Joining Chagares were Smith and Fuentes. Arguing counsel were Stuart Steinberg of Dechert for Vanguard and Christopher Nelson of the Weiser Law Firm for the investor.

New opinion — remarkably lopsided en banc Third Circuit sides with rental-assistance tenants [updated]

Hayes v. Harvey (en banc) — housing — reversal — Greenaway

[Update 2: a couple hours after the original opinion posted, the clerk issued an order that read, “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.” I’ve updated the post accordingly; the original opinion is here.]

Holy cannoli. Today the en banc Third Circuit ruled 12 to 1 11 to 2 in favor of the tenant in a significant housing appeal, a dramatic switch from the panel’s 2-to-1 ruling against the tenant. The core legal issue was whether a federal statute that says Section 8 enhanced voucher tenants “may elect to remain” in their homes gives them the right to remain in their homes.

[Disclosure: I provided modest pro bono consulting to counsel for the appellants during the en banc litigation.]

The en banc author was Judge Greenaway, who had dissented with gusto from the panel ruling. Judge Hardiman flipped, joining the en banc majority after siding with the landlord at the panel stage. Judge Fisher, the panel author, was the lone dissenter. Judges Fisher and Hardiman, the original panel majority, were the only dissenters. Few observers would have predicted such a lopsided outcome here.

My post on the panel ruling is here. (It began, “In a significant public-housing opinion that I think has a realistic shot at en banc rehearing,” and you betcha I’m bragging.)

Appellate lawyers should note the valuable role that amici curiae played in the en banc litigation here. Hayes had one supporting amicus brief from advocacy groups at the panel stage, but at both the rehearing stage and the en banc merits stage the amicus support Hayes garnered was impressive, from legal aid offices to the City of Philadelphia and its housing authority. (Vooys, the en banc decided two weeks ago, also had major amicus participation.) En banc petitions and briefs are an under-utilized opportunity for amicus participation, and Hayes shows why that’s starting to change.

Arguing counsel were Rachel Garland of Community Legal Services for the tenant, Susanna Randazzo of Kolber & Randazzo for the landlord, and Gerard Sinzdak for HUD as amicus.

[I’ve updated the post to clarify that it involves recipients of Section 8 rental-assistance vouchers, not public-housing residents.]

New opinion — police officer’s questioning unreasonably extended traffic stop [updated]

US v. Clark — criminal — affirmance — Ambro

A police officer stopped a vehicle for traffic violations, questioned the driver, questioned the passenger, pat-down searched the passenger, and, 23 minutes after the stop began, discovered a gun and a marijuana joint on the passenger. Today, the Third Circuit affirmed the suppression of the fruits of the pat-down search, holding that the officer impermissibly extended the traffic stop beyond its mission by questioning the driver about his criminal history and the passenger about other criminal activity after the driver’s authority to drive the vehicle had been confirmed.

Joining Ambro were Jordan and Vanaskie. Arguing counsel were AUSA Norman Gross for the government and Lisa Van Hoeck of the federal defender for the defendant.


UPDATE: A second notable Fourth Amendment development today: in the afternoon, the court posted an order granting panel rehearing in US v. Goldstein, and directing the parties to file supplemental briefs addressing cell-site date and the Supreme Court’s subsequent ruling in Carpenter v. United States. Goldstein’s appeal had been decided last year, my post here; he and two co-defendants were convicted for conspiring to kidnap Orthodox Jewish husbands to aid their wives in obtaining divorces.

New opinion — Third Circuit reverses arbitration order

Cup v. Ampco Pittsburgh Corp. — civil — reversal — Hardiman

In a dispute between a union and an employer over retiree benefits, the district court granted the union’s request for arbitration, but today the Third Circuit reversed on the ground that the collective bargaining agreement did not cover retirees. The court also held that a district court order compelling arbitiration, dismissing the substantive claims without prejudice, and administratively closing the case is an appealable final order.

Joining Hardiman were Smith and Restrepo. Arguing counsel were Nathan Kilbert of the United Steelworkers for the union and Jeremy Blumenfeld of Morgan Lewis for the employer.

Four new opinions

The Third Circuit issued four precedential opinions yesterday, but I’m posting about them today because I was in a meeting all afternoon for a new CA3 appeal I’m doing.

Geness v. Cox — civil rights and disability — partial reversal — Krause

An intellectually disabled man with mental illness was charged for a crime that may not have occurred, found incompetent to stand trial, and then held without a trial for nearly a decade. Then, when the man finally got a hearing, the prosecutor voluntarily dismissed the charges due to—get this—”substantive evidentiary issues in this matter that likely could and would impair the Commonwealth’s ability to meet its burden of proof, even if the defendant were competent.”

So the man filed a lawsuit against the arresting officer, Jason Cox, who is now the  the town’s police chief, alleging violations of his civil rights and his rights under the Americans with Disability Act. In a searing opinion, the Third Circuit affirmed dismissal of the man’s civil-rights claims (“Absurd as it may seem that Geness was detained for nine years for a crime that may not have occurred and now cannot pursue relief under § 1983, multipoint failures in the criminal justice system have brought us to this juncture.”) but reinstated his due process and ADA claims to let him amend.

Joining Krause were Smith and Greenaway. Arguing counsel were Joel Sansone of Massimo Terzigni for the plaintiff and former CA3 staff attorney Carol VanderWoude of Marshall Dennehey for the officer.


Lifewatch Services v. Highmark — antitrust — reversal — Ambro

One of life’s great law-nerd pleasures is reading an Ambro opinion deciding a consequential business case. Want a quick master-class on how crisp topic sentences can turn daunting and dry into lucid and engaging? Read this opinion.

The introduction:

The seller of a medical device, believing it was shut out of the market for it, brought suit on federal antitrust grounds against associated health insurance companies. The claim was that they shielded themselves from patient demand for the seller’s device by agreeing to deny coverage as “not medically necessary” or “investigational,” even while the medical community, other insurers, and independent arbiters viewed it as befitting the standard of care. The District Court dismissed the claim. For the reasons that follow, we reverse its judgment and remand the case for further consideration.

Joining Ambro were Restrepo and Fuentes. Arguing counsel were Gary Elden of Shook Hardy for the device maker and Daniel Laytin of Kirkland & Ellis for the insurers.


Tanksley v. Daniels — civil / copyright — affirmance — Fisher

A Philadelphia man “wrote, produced, directed, filmed, starred in, and copyrighted” a television pilot about an African American hip hop mogul, and he pitched it to a top television producer. Several years later, that same producer launched Empire, the Fox television series about an African American hip hop mogul. The Philadelphia man sued, alleging copyright infringement and other claims. The Third Circuit affirmed the district court’s dismissal based on a comparison of the two shows’ characters, settings, and storylines.

Joining Fisher were Chagares and Vanaskie. Arguing counsel were Mary Bogan and Predrag Filipovic of IFight4Justice for the Philadelphia man and Richard Stone of Jenner Block and Mathieu Shapiro of Obermayer for the defendants.


Conard v. Pa. State Police — civil rights — partial reversal — Greenberg

The Third Circuit reversed the dismissal a fired police dispatcher’s First Amendment retaliation claim. The opinion “clarif[ied] the applicable First Amendment legal standard in two respects”:

First, we conclude that the framework for First Amendment claims brought by government employees against their employers does not apply to Conard’s retaliation claim, because the speech which Conard alleges triggered the retaliation against her—filing administrative complaints and a lawsuit against her former employer— occurred after she had left her State Police employment….

Second, in the context of this action, Conard was not required to plead that defendants engaged in retaliatory conduct “of a particularly virulent character,” a standard applicable to retaliation claims where the retaliatory conduct involves speech by a public employee defendant.

Joining Greenberg were Chagares and Fuentes. Arguing counsel were former Hardiman clerk Eric Hamilton of Williams & Connolly for the fired dispatcher and Howard Hopkirk of the Pa. Attorney General’s office for the defendants. The opinion closed by thanking Conard’s appellate counsel “for having represented her in a fine way on a pro bono basis.”

The terrific Third Circuit staff attorney office is hiring now

The Third Circuit is hiring several two-year-term staff attorneys. A link to the position announcement is here.

The Third Circuit’s staff attorney office is elite, and everyone I know who’s been there had a positive experience. Plus you come out with circuit insider expertise that the rest of us swoon for.

From the announcement:

In the Third Circuit, approximately twenty-five attorneys work with a dedicated administrative staff in a highly collegial environment. Term staff attorneys are a vital complement to our established group of supervisory attorneys and career attorneys. Term staff attorneys are hired at various levels of legal experience, and recent law school graduates work alongside and engage with attorneys with prior judicial clerkship or other professional experience. Our office has been a launching point for a wide range of careers nationwide, and many of our former staff attorneys have become leaders in public interest, private sector, and academic settings.

The deadline to apply is October 8.

A new habeas opinion

Mitchell v. Superintendent — habeas — affirmance — Greenberg

Two defendants were jointly tried for murder. One of the defendants, Eley, won habeas relief in the Third Circuit in 2013 on a claim arising from the admission of certain evidence at the trial. Eley’s co-defendant Mitchell raised the same legal issue in exactly the same posture, but his case moved more slowly then Eley’s, and the district court denied Mitchell relief, based on a Supreme Court case decided years before the Third Circuit decided Eley.

Today, the Third Circuit affirmed. The court’s view appeared to be that, while Eley had gotten a windfall because his panel had missed controlling law fatal to his claim, Eley’s win didn’t help poor Mitchell. Eley was freed five years ago, but Mitchell is serving life.

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

Four new opinions: a big removal ruling plus three reversals [updated]

Encompass Insurance v. Stone Mansion Restaurant — civil — partial affirmance — Chagares

The federal removal statute provides that, in a diversity case, a case may not be removed if “any of the parties in interest properly … served” is a citizen of the forum state. Here, a forum-state defendant successfully got its case out of state court by initially agreeing to accept service (instead of formal service) but then delaying that service until after it had removed. The plaintiff screamed bloody murder (“nonsensical,” “inconceivable”), but the Third Circuit affirmed the denial of remand on textual grounds. The court acknowledged that its holding may demonstrate “a need for a change in the law,” and it recognized that it could lead to future defendants gaming the removal statute by monitoring dockets and removing between filing and service (a pernicious practice termed “snap removal”) but said that it was up to Congress to fix it.

This opinion strikes me as a big deal and a viable candidate for en banc or certiorari review.

Joining Chagares were Jordan and Fuentes. Arguing counsel were Joshua Guthridge of Robb Leonard for the appellant and Miles Kirshner of Margolis Edelstein for the appellee.

UPDATE: I’ve updated the post to correct an error of mine that appeals whiz Katherine Romano kindly pointed out to me. My original post mistakenly described the defendant as non-diverse rather than a forum defendant.


Kane v. Barger — civil rights — reversal — Fuentes

When a police officer interviewed a sexual-assault victim, alone, he allegedly pulled down her shorts and her shirt in order to view her injuries, questioned her “relentless[ly]” about whether her vagina was injured, used his personal cellphone to take pictures of her breasts and buttocks, and lied about photographing her, and admitted he lied because he didn’t want his girlfriend to be jealous. The district court granted summary judgment in favor of the officer on qualified immunity grounds, but today the Third Circuit reversed, emphatically holding that the officer’s actions violated the woman’s right to bodily integrity and that that right was clearly established.

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


Levins v. Healthcare Revenue Recovery Gp — civil / FDCPA — partial reversal — Jordan

A provision of the Fair Debt Collection Practices Act requires a debt collector from using any name other than its “true name.” Today, the Third Circuit held that the plaintiffs stated a valid true-name violation where the company left debt-collection messages identifying itself using a name that was neither its full business name, the name under which it usually transacted business, or a commonly used acronym. The court rejected the plaintiffs’ related arguments under FDCPA’s caller-identity and deceptive-means provisions.

Joining Jordan were Ambro and Vanaskie. Arguing counsel were Philip Stern of Stern Thomasson for the plaintiffs and Christian Scheuerman of Marks O’Neill for the debt collector.


US v. Mayo — criminal — reversal — Jordan

The Third Circuit today vacated a criminal defendant’s sentence, holding that a conviction under Pennsylvania’s aggravated-assault statute, 18 Pa. Cons. Stat. § 2702(a)(1), does not qualify as a violent felony under the residual clause of ACCA, the Armed Career Criminal Act.

Joining Jordan were Chagares and Fuentes. Arguing counsel were Fritz Ulrich of the MDPA defender for the defendant and Carlo Marchioli of the MDPA US Attorney’s office for the government.


Three new opinions, including the Virgin Islands en banc

Vooys v. Bentley (en banc) — jurisdiction — dismissal — McKee

In an almost-unanimous en banc ruling today, the Third Circuit held that Congress statutorily terminated its jurisdiction over any certiorari petition from a final decision of the Supreme Court of the Virgin Islands if the petition was filed on or after the statute’s effective date, overruling its prior ruling in Bason. The lone dissenter, interestingly, was Judge Bibas, the court’s newest member.

Arguing counsel were Rhea Lawrence of Lee Rohn & Associates for the respondents, UVA law students Laura Cooley and Tanner Russo for the petitioners, and Dwyer Arce of Nebraska for the VI bar association as amicus.

Update: the court issued an amended opinion on 8/22 to delete an orphan footnote, so I’ve updated the opinion link.

Update 2: Turns out I was right when, the day the court granted en banc rehearing, I wrote:

While nothing is certain, the posture of this order (sua sponte and prior to panel ruling) strongly suggests that overruling of Bason is likely. En banc grants in similar postures resulted in overrulings in Joyce, Rojas, Al-Sharif, and Quinn in recent years.


US v. Hird — criminal — partial affirmance — Nygaard

In a six-defendant consolidated criminal appeal arising out of the prosecution of Philadelphia traffic-court judges and others for ticket-fixing, the Third Circuit affirmed on almost all grounds, reversing only as to one defendant’s sentence with the government’s concurrence. It’s a heavily fact-intensive opinion, rejecting challenges to the sufficiency of the indictment’s fraud allegations and the sufficiency of perjury evidence, among others.

UPDATE: the court issued an amended opinion on January 18, 2019. The link above now goes to the new opinion; the original opinion is here. Unfortunately, the amended opinion did not indicate what changed or even indicate in the caption that this was an amendment.

Joining Nygaard were Greenaway and Fisher. Arguing counsel were Lisa Mathewson, Peter Goldberger, Michael Engle of Stradley Ronon, and Mark Cedrone of Cedrone & Mancano for the defendants and Robert Zauzmer for the government.


Murray v. City of Philadelphia — civil — dismissal — Chagares

The Third Circuit today dismissed a pro se appeal brought by a mother seeking to litigate on behalf of her son’s estate, holding that a non-attorney who is not a beneficiary of an estate may not litigate pro se on behalf of the estate.

Joining Chagares were Smith and Fuentes. The case was decided without oral argument, but the opinion thanked former Fisher clerk Ellen Mossman (now Ellen Ratigan) and Will Sachse of Dechert and recent Penn Law grad Chase McReynolds for providing “high-quality assistance” as amicus curiae counsel.

Is Paul Matey’s Third Circuit nomination still on track?

Four months ago, Paul Matey was nominated for the Third Circuit’s open seat formerly held by Judge Fuentes. I can’t tell whether he’s still on the path to confirmation, but there are signs that he may not be.

First, Matey still hasn’t had his Senate Judiciary Committee hearing yet, and I haven’t seen anything indicating he’s getting one soon. Meanwhile, tomorrow’s SJC hearing will include an Eighth Circuit nominee nominated two months after Matey. And SJC already has held hearings on three four other circuit nominees submitted after Matey.

Second, he still hasn’t received a rating from the ABA. Here again, four circuit nominees and a slew of district nominees announced after him have gotten their ratings.

Third, Matey just switched jobs. He left his position as in-house counsel at a hospital to join the New Jersey law firm Lowenstein Sandler‘s white-collar group. Eric Strauss reports on

“Whether serving as a federal prosecutor, aiding Gov. Christie or leading the legal team at University Hospital, I’ve always known Lowenstein Sandler’s unmatched reputation for excellence,” Matey said in a statement. “Working alongside so many of my former colleagues, and a valued friend and exceptional attorney like Chris, made joining the firm an easy choice.”

Matey was nominated for a federal judgeship by President Donald Trump earlier this year, but the confirmation process has not yet begun.

“We are very fortunate to have Paul as our partner,” Porrino added in an emailed statement to ROI-NJ, “and look forward supporting him during his judicial confirmation process.”

Honestly, I’m not sure what to make of all this. I think it’s possible none of this means anything and Matey still will be confirmed without incident.

But I’m starting to wonder.

Update: there’s a bit more information in this August 20 story by Meghan Tribe for NJ Law Journal, noting that Matey was targeted for recruitment to the firm by a fellow alum of Governor Christie’s legal team.

Two new opinions, including Judge Bibas’s first precedential opinion

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.

Chief Judge Smith discusses Third Circuit’s low oral-argument rate

On Friday, Law360 posted an important story by Jeannie O’Sullivan on the rarity of oral argument in the Third Circuit, link here. (If you’re not a Law360 subscriber you can access it through Twitter here.) I’ve looked at that topic here a few times, here in particular.

The article features an interview with Third Circuit Chief Judge D. Brooks Smith in which he says he’d like to see the circuit’s oral-argument-grant rate “a little higher”:

The trend certainly appears to be a negative, Judge Smith said, although he acknowledged that the court must consider the cost-effectiveness of oral argument. Pro se cases, which make up more than half of the court’s docket, usually aren’t well-suited for oral argument, he said. The ones more likely to get the oral argument green light are those that could be overturned, tackle an issue of first impression or involve a situation of public interest, versus just private parties.

“The helpfulness of argument is always of importance to those of us who are judges. You want to make sure the expense really is going to pay some kind of dividend to the process,” Judge Smith told Law360.

“That said, would I like to see the percentage a little higher? Yes. But I don’t think it would rise any considerable degree if we, in fact, undertook some diligent effort to up our numbers,” he said.

He said he thinks his Third Circuit peers agree that no case truly warranting oral argument is denied it.

Chief Judge Smith also addressed the oral-argument-rate issue last year in a story in the Legal Intelligencer, quoted here.

O’Sullivan also quotes Reed Smith partner James Martin, former president of the American Academy of Appellate Lawyers, discussing AALS’s landmark 2015 report on federal appellate oral argument rates, link here. (It’s a tremendous report. If you haven’t read it yet, you should.) Martin describes the reaction the AALS oral argument report has received from judges:

The overall response among the circuits has been “all over the map,” Martin said, with some judges indicating it’s something they want to address and others being “not all that troubled.” Judge Smith, who is among the jurists that have joined the academy’s discussion about the report, is a “very conscientious” jurist who takes the appellate bar’s concerns seriously, Martin said.

I’m also quoted in the story, describing circuit practitioners’ concern about the low argument rate while acknowledging the bar’s own responsibility to improve the usefulness of arguments to the judges. As much as I’d like to see the court holding more arguments, Chief Judge Smith is absolutely right: judges aren’t going to grant more arguments unless they believe those arguments will help them decide cases better. And, even now, there are too many lousy arguments that waste the judges’ time because the lawyer didn’t understand how to prepare and present a federal appellate argument. So if lawyers want the court to hold more arguments, one part of the answer is that we need to make our arguments better.

Anyhow, it’s an excellent story on a hot Third Circuit topic.

New opinion — Third Circuit reverses denial of qualified immunity in car-chase-shooting appeal

Bland v. City of Newark — civil rights — reversal — Hardiman

The Third Circuit today held that police officers were entitled to qualified immunity from suit after shooting an unarmed man 16 to 18 times at the end of a dangerous high-speed car chase when they thought he was armed and unwilling to surrender.

Joining Hardiman were Smith and Bibas. Arguing counsel were Peter Ventrice of Brause Brause & Ventrice and Lucas Phillips Jr. of East Orange NJ for the plaintiffs and Michael Walters of the state AG’s office and Gary Lipshutz of the Newark Law Dept. for the defendants.

Two new opinions

Berardelli v. Allied Services Inst. of Rehab. Medicine — civil / disability — reversal — Krause

The Third Circuit today held that the Rehabilitation Act, like the Americans with Disabilities Act, generally requires covered actors to accommodate the service animals used by persons with disabilities. The case arose after a school refused to allow a girl with epilepsy to attend school with her service dog trained to detect seizures.

Joining Krause were Ambro and Rendell. Arguing counsel were Arleigh Helfer III of Schnader for the girl and James Conaboy of James Conaboy for the school.


In re: W.R. Grace — bankruptcy — partial reversal — Ambro

Today’s opinion opens, “Mass-tort liability of entities with asbestos operations typically results in their filing for bankruptcy protection,”  and few would disagree. Two decades ago the Supreme Court described the scale of asbestos litigation as elephantine, and it continues on today, with the Third Circuit still playing a central role.

Asbestos bankruptcy reorganizations often include an injunction that channels asbestos liability claims to a trust — not just claims against the debtor itself, but also claims against other entities such as the debtor’s insurers. The question in today’s opinion was whether the legal claims of a group of plaintiffs against an asbestos company’s insurers were subject to the chaneling injunction. The court agreed with the bankruptcy court that the claims fell within the terms of the injunction, but it remanded to reconsider whether chaneling their claims was allowed by the bankruptcy code.

Joining Ambro were McKee and Restrepo. Arguing counsel were Daniel Cohn of Boston for the appellants and Michael Giannotto of Goodwin Procter for the appellees.

Federal appellate advocacy CLE set for September 5 in Harrisburg, featuring two Third Circuit judges

Next month, the Third Circuit Bar Association will put on a free CLE on federal appellate advocacy in Harrisburg, PA. The featured presenters will be Third Circuit Judge Thomas Vanaskie and Judge Cheryl Ann Krause. The program also will include a panel of expert appellate practitioners. It’s a terrific opportunity to hone your skills and to meet practitioners and judges. And it’s free, with lunch provided.

The details:
Effective Third Circuit Advocacy
Federal courthouse, 228 Walnut St, Harrisburg PA
Wednesday, September 5, 2018
10:30 to 12:30, followed by lunch
2.0 hours of PA CLE credit

(I’m on the 3CBA board and am one of the event organizers, along with David Fine and Nilam Sanghvi.)

This is the second in a series of appellate advocacy CLEs that 3CBA is putting on around the circuit. The first one, in Delaware and featuring Judges Jordan and Roth, was a big hit. (My “Oral argument as kabuki” post discussed a useful oral-argument lesson I learned there.)

The program and lunch are free, but registration by August 31 is required. To register, email me at with your name and address. And if you’re not a current 3CBA member, now’s a great time to join or renew, link here.

Don’t miss it.

New opinion — petitioner wins ACCA residual-clause appeal

US v. Peppers — criminal sentencing / § 2255 — reversal — Jordan

The Third Circuit today vacated a district court’s denial of relief in a successor post-conviction challenge to a criminal defendant’s sentencing under the residual clause of the Armed Career Criminal Act. The opinion’s introduction ably summarizes:

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm. That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions. Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague. He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause. But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson. Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand. First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on postsentencing cases (i.e., the current state of the law) to support his Johnson claim. Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such. Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction. We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.

Joining Jordan were Chagares and Fuentes. Arguing counsel were MDPA AFD Fritz Ulrich for the petitioner and MDPA AUSA Carlo Marchioli for the government.

New opinion — Third Circuit vacates some of former congressman’s convictions

US v. Fattah — criminal — partial reversal — Smith

[UPDATE: the court issued an amended opinion replacing this one on January 16, 2019, link here.]

In a 142-page opinion, the Third Circuit today affirmed some, vacated some, and reinstated some of the criminal convictions of former Philadelphia Congressman Chaka Fattah Sr. and three co-defendants. The facts and procedural history of the opinion alone spanned over 40 pages, longer than most published opinions.

Joining Smith were Greenaway and Krause. Arguing counsel were Jonathan Ian Kravis for the government, Bruce Merenstein of Schnader for Fattah, and Ann Flannery of Philadelphia, Barry Gross of Drinker Biddle, and Glen Nager of Jones Day for the three co-defendants.

Four new opinions [updated]

The Third Circuit issued four precedential opinions today, all unanimous affirmances — three civil, one criminal:

Tepper v. Amos Financial — civil / FDCPA — affirmance — Ambro

The Third Circuit held today that debt collectors who purchase consumers’ debts from creditors (instead of being hired by the creditors to collect the debts) are subject to the Fair Debt Collection Practices Act. Said the court, “Those entities whose principal business is to collect the defaulted debts they purchase seek to avoid the Act’s reach. We believe such an entity is what it is—a debt collector.”

Joining Ambro were Jordan and Vanaskie. Arguing counsel were Erik Helbing for the consumers and John Jacko III of Fellheimer & Eichen for the debt collector.

St. Pierre v. Retrieval Masters Creditors — civil / FDCPA — affirmance — Krause

In an issue of first circuit impression, the Third Circuit held that collecting unpaid highway-tolls bills falls outside the scope of the FDCPA, distinguishing prior circuit caselaw that collecting unpaid water and sewer bills falls within its scope. The opinion announced a three-part test for deciding what constitutes a “debt” subject to the FDCPA.

Joining Krause were Greenaway and Jones MDPA by designation. Arguing counsel were Michael Quirk of Berezofsky Law Group for the consumer and Joel Bertocchi of Chicago for the debt collector.


Reading Health Systems v. Bear Stearns — civil / arbitration — affirmance — Roth

Here is the first paragraph of today’s opinion:

In this case, we address an emerging trend in the brokerage industry. Ordinarily, broker-dealers, as members of the Financial Industry Regulatory Authority (FINRA), are required by FINRA Rule 12200 to arbitrate all claims brought against them by a customer. Seeking to avoid this obligation to arbitrate, broker-dealers have begun inserting forum selection clauses in their customer agreements, without mentioning the customer’s right to arbitrate. This practice, which has been condoned by several of our sister circuits, deprives investors of the benefits associated with using FINRA’s arbitral forum to resolve brokerage-related disputes.

“[C]ondoned by several of our sister circuits,” perhaps, but not condoned by the Third. Affirming the district court’s order compelling J.P. Morgan to submit to FINRA arbitration, the court expressly split with the Second and Ninth Circuits while siding with the Fourth Circuit.

Joining Roth were Shwartz and Pappert EDPA even though the appeal arose from the EDPA. Arguing counsel were Jonathan Youngwood of Simpson Thacher for the appellant and Mark Strauss of New York for the appellee.


US v. Johnson — criminal — affirmance — Fisher

The Third Circuit rejected a series of challenges to a criminal defendant’s conviction and sentence arising from a series of bank robberies. Proceeding after a Supreme Court GVR, the court held that the district court’s failure to instruct the jury on an element of the crime was Alleyne error but that reversal was not warranted under plain error review. The court also held that a prior federal bank-robbery conviction under 18 USC § 2113(d) was a crime of violence under the § 924(c) federal gun-enhancement statute.

Interestingly, the court firmly rejected the government’s argument that the defendant forfeited some of his claims by failing to raise them prior to the Supreme Court’s remand.

Joining Fisher were Jordan and Scirica. Arguing counsel were Ron Krauss for the defendant and Bob Zauzmer for the government.

New opinion — Third Circuit rejects Johnson challenge to Guidelines career-offender designation

US v. Green — criminal — affirmance — Chagares

By statute, 28 USC § 2255, federal prisoners are allowed to file a petition challenging their conviction within one year of a Supreme Court decision recognizing a retroactively applicable “newly recognized” right. In 2015, the Supreme Court held in US v. Johnson that the so-called residual clause of the Armed Career Criminal Act was unconstitutionally vague, and it later held that this rule applied retroactively. The wording of the residual clause of the ACCA statute is similar to the wording of the residual clause of the career-offender provision of the Sentencing Guidelines. So the prisoner in this case filed a petition within a year of Johnson asserting that he was erroneously classified under the Guidelines as a career offender.

Splitting with the Seventh Circuit, the Third Circuit today held that the prisoner’s claim did not involve a right that was “newly recognized” under § 2255 because the court interpreted a subsequent Supreme Court ruling, Beckles v. US, to foreclose application of Johnson to Guidelines residual-clause career-offender challenges. The court also distinguished its ruling last year in In re: Hoffner. (And, on a typography note, the paragraph formatting in the opinion is inconsistent.)

Joining Chagares were Greenberg and Fuentes. Arguing counsel were Fritz Ulrich for the prisoner and John Pelletieri for the government.

[Disclosure: I’ve provided some consulting assistance to counsel for the prisoner.]

Two new opinions

US v. Williams — criminal — affirmance — Roth

Things rarely seen: a panel opinion in which all three judges filed separate concurring opinions. It happened today in case where the Third Circuit rejected a defendant’s challenges to the denial of his suppression motion based on withdrawal of consent and his classification as a career offender.

Judge Hardiman concurred in part and concurred in the judgment to argue that the modified categorical approach need not be applied in cases involving RICO predicate offenses. Judge Roth concurred (“I agree with the reasoning and the conclusions of the majority opinion, which I in fact wrote”) to argue that, while the modified categorical approach may be required in RICO-predicate cases, it shouldn’t be. And Judge Fisher concurred, arguing that the defendant validly withdrew consent to the search but that it was supported by probable cause.

Arguing counsel were Kimberly Brunson for the federal defender and Donovan Cocas for the government.


Wang v. AG — immigration — reversal — Nygaard

The Third Circuit today held that a Chinese citizen’s conviction for violating the Commodities Exchange Act did not qualify as a deportable aggravated felony.

Joining Nygaard were Chagares and Jordan. Arguing counsel were Thomas Moseley of Newark for the petitioner and Keith McManus for the government.

New opinion — Third Circuit decides jurisdiction for appeals from nationality determinations transferred out-of-circuit

Ricketts v. AG — immigration — dismissal — Jordan

On Monday, the Third Circuit held that, when a deportation proceeding is transferred out-of-circuit to determine whether the person the government is trying to deport actually is a U.S. citizen, an appeal from that determination must go to the circuit court where the case was transferred to, not the circuit court where the case originated. The Third Circuit acknowledged that this holding may conflict with a prior Ninth Circuit ruling.

Joining Jordan were Greenaway and Fisher. The appeal was decided without oral argument.

New opinions — a dramatic new chapter in the Doe transgender-bathrooms appeal, and a big class-action ruling

Doe v. Boyertown Area School Dist. (amended) —  civil — affirmance — McKee

Today the Third Circuit issued a revised, narrower panel opinion in Doe, the big transgender-bathrooms appeal in which the panel announced its ruling from the bench after oral argument. My post on the court’s original opinion is here.

Also today, the court issued an order denying without prejudice the appellants’ request for rehearing en banc, stating that they may re-file in light of the revised panel opinion.

And, most dramatically, Judge Jordan issued an opinion dissenting from the en banc denial, joined by Judges Chagares, Hardiman, and Bibas. The order and dissent are not posted on the court’s website, unfortunately, but they are on Pacer and also have been posted by one of the parties at this link.

Judge Jordan’s dissent explains that his purpose is not to take issue with the outcome of the panel opinion, conceding that the record can support the denial of the preliminary injunction. But he disagrees, strenuously, with the revised panel opinion’s discussion of whether requiring transgender students to use bathrooms according to their sex at birth would violate Title IX. He argues that this discussion is unnecessary, debatable, and dicta, concluding, “it is … axiomatic that we should confine ourselves to resolving the specific matters before us, not some bigger issue we might like to address.”

Remarkable. And still not the last word, I suspect.


Mielo v. Steak ‘n Shake — civil / class action — reversal — Smith

Here is the introduction from today’s opinion reversing class certification:

In this class action lawsuit, two disability rights advocates have sued Steak ’n Shake under the Americans with Disabilities Act (“ADA”). Alleging they have
personally experienced difficulty ambulating in their wheelchairs through two sloped parking facilities, these Plaintiffs seek to sue on behalf of all physically disabled individuals who may have experienced similar difficulties at Steak ’n Shake restaurants throughout the country. The District Court certified Plaintiffs’ proposed class, and Steak ’n Shake now appeals that certification decision. We are tasked with answering two questions: First, whether Plaintiffs have standing under Article III of the United States Constitution, and second, whether they have satisfied the requirements set out in Federal Rule of Civil Procedure 23(a).

As to the first question, we conclude that Plaintiffs have standing to bring their claims in federal court. Although a mere procedural violation of the ADA does not qualify as an injury in fact under Article III, Plaintiffs allege to have personally experienced concrete injuries as a result of ADA violations on at least two occasions. Further, Plaintiffs have sufficiently alleged that these injuries were caused by unlawful corporate policies that can be redressed with injunctive relief. We withhold judgment as to whether those corporate policies are indeed unlawful, as our standing inquiry extends only so far as to permit us to ensure that Plaintiffs have sufficiently pled as much.

As to the second question before us, we conclude that Plaintiffs have failed to satisfy Rule 23(a). The extraordinarily broad class certified by the District Court
runs afoul of at least two of Rule 23(a)’s requirements [numerosity and redressability]. In light of this conclusion, the District Court’s judgment will be reversed, and this matter will be remanded to the District Court to reconsider if a class should be certified.

Joining Smith are Hardiman and Restrepo. Arguing counsel were David Raizman of Ogletree Deakins for the appellants and Edwin Kilpela Jr. of Carlson Lynch for the appellee.

Three new opinions

US v. Green IV — criminal — affirmance — Fisher

The Third Circuit today rejected a criminal defendant’s challenge to a vehicle stop. The officer made the stop for speeding after pacing the vehicle from between a mile and two-tenths of a mile away. After the driver refused to consent to a vehicle search, the officer made the driver wait for 15 minutes for a dog to arrive to sniff the vehicle for drugs. The court rejected challenges to both the initial stop and the prolongation.

The court’s analysis of reasonable suspicion turns on statements by the driver that it deems fishy but which strike me as quite unremarkable. For example, the opinion thought a key fact was that, when asked by the officer how he was doing, the driver responded, “I can’t complain,” instead of immediately explaining to the officer that his daughter recently had broken her leg. On the other hand, the opinion’s prolongation section is an admirably lucid discussion of an area of the law that is anything but.

Joining Fisher were Greenaway and Nygaard. Arguing counsel were Kimberly Brunson of the WDPA FPD for the defendant and Michael Ivory for the government.


Adorers of the Blood of Christ v. FERC — civil / agency — affirmance — Greenaway

By statute, the D.C. Circuit has exclusive jurisdiction over certain decisions by the Federal Energy Regulatory Commission. After FERC approved a natural-gas pipeline through land owned by a religious organization, the religious organization sued to block the project under the Religious Freedom Restoration Act in the Eastern District of Pennsylvania. The district court dismissed for lack of jurisdiction, and today the Third Circuit affirmed, holding that RFRA does not function as an exception to the exclusive-jurisdiction grant.

Joining Greenaway were Smith and Krause. Arguing counsel were J. Dwight Yoder of Gibbel Kraybill for the religious group, Susanna Chu for FERC, and Elizabeth Witmer of Saul Ewing for the gas company.


PA DHS v. USA — civil — affirmance — Greenberg

The Third Circuit today rejected a state agency’s challenge to a district court ruling in favor of the federal government in a dispute over reimbursement of fees for Medicare and Medicaid provider training.

Joining Greenberg were Jordan and Krause. Arguing counsel were W. Scott Foster for the agency and Suzanne Yurk for the government.

New opinion — Third Circuit rules for the government in FTCA filing-deadline appeal

Sconiers v. USA — civil — affirmance — Greenaway

The Third Circuit today affirmed the dismissal of a suit under the Federal Tort Claims Act because the claimant failed to file suit within six months of the agency’s written denial, rejecting the claimant’s argument that the FTCA’s timeliness requirement was satisfied once she filed her claim with the agency within two years.

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

New opinion — Third Circuit clarifies the new-evidence standard for proving actual innocence

Reeves v. Coleman — habeas corpus — reversal — Shwartz

[Disclosure: I represented the petitioner-appellant in this appeal, along with my superb pro bono co-counsel David Fine.]

Under habeas corpus law, petitioners who present new evidence of their actual innocence can have federal review of their procedurally barred or untimely constitutional claims if their innocence showing is strong enough. But what evidence qualifies as “new” evidence of innocence? Is innocence evidence “new” any time it was not presented at trial? What if it was available at trial, but counsel failed to discover or present it due to ineffective assistance of counsel?

Today the Third Circuit held that innocence evidence is new if it is the very evidence upon which the petitioner relies to demonstrate his counsel’s ineffective assistance, and that Reeves’s evidence meets that test, vacating the district court’s denial of relief based on the availability of the evidence at trial. The new-evidence standard announced today is more permissive than the various standards most district courts in the circuit have been applying, and today’s ruling is helpful for innocent prisoners fighting to get federal review of their claims.

Judge McKee concurred separately “to emphasize the weight of the evidence that supports Reeves’s claim of actual innocence,” noting that his showing is so substantial that a group of former federal judges and prosecutors filed an amicus brief on his behalf.

Joining Shwartz were McKee and Cowen, with McKee also concurring. Arguing counsel were yours truly for the petitioner and Ryan Lysaght of the Dauphin County D.A.’s office for the Commonwealth. Audio of the argument is here.


Update: the Court issued an amended opinion on July 23 that made minor, non-substantive edits to the footnotes in the concurrence. The link in the heading now goes to the amended opinion, the original opinion is here.


New opinion — Third Circuit sides with city in challenge to its gas-bill lien system

Augustin v. City of Phila. — municipal — reversal — Hardiman

The Third Circuit today held that a district court erred in granting summary judgment in favor of a group of landlords who challenged on due process grounds Philadelphia’s system for imposing and enforcing liens to collect debts for commercial and residential gas service.

Joining Hardiman were Smith and Brann MDPA by designation. Arguing counsel were Craig Gottlieb of the city law department for the city and the formidable Irv Ackelsberg of Langer Grogan for the landlords.

New opinion — on the “hellish judicial duty” of deciding attorney-fees melees

US ex rel. Palmer v. C&D Technologies — qui tam / attorney fees — affirmance, mostly — Greenberg

The Third Circuit today decided a fascinating train-wreck of an appeal, an attorney-fees dispute in which the court said “both parties adopted unproductive tactics and strayed from professional etiquette, conduct that ultimately caused the District Court to proclaim that ‘[i]t is a hellish judicial duty to review and resolve disputed attorneys’ fee petitions, particularly in cases, like this one, where the adversaries fan the flames at virtually every opportunity.'”

How could you not read that opinion?

Today’s opinion is punchy and clear, as Greenberg opinions usually are. The court almost entirely upheld the district court’s ruling, which awarded the qui tam relator’s counsel almost $1.8 million in fees, rejecting relator’s counsels’ arguments that the award should have been higher. (It appears to me that counsel argued their own appeal, which as I recently opined in discussing another case is usually a mistake.)

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

New opinion — a major reversal in a capital habeas appeal

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.

New opinion — divided panel rules that TSA screeners are immune from suit

Pellegrino v. TSA — civil — affirmance — Krause

Deciding an issue of first impression, the Third Circuit today held that the federal government is immune from suit for intentional torts committed by TSA airport security screeners.

The Federal Tort Claims Act confers sovereign immunity to the government for intentional torts by federal employees, subject to an exception for “investigative or law enforcement officers.” The core issue in today’s appeal was whether TSA screeners fall within the exception. The panel majority held that they do not, interpreting the exception to apply only to officers with criminal law enforcement powers.

Judge Ambro dissented in an opinion that ran 58 pages. Here is the heart of it, from his conclusion (cites omitted):

The[ two judges in the majority] look to other statutes for clarification, consult various canons of construction, and also examine legislative history. Ultimately they conclude § 2680(h) covers only criminal law enforcement officers. In doing so, they depart from other Circuits’ interpretation of the proviso. They also disregard Supreme Court precedent that tells us how to interpret § 2680(h)’s language. Their decision insulates TSOs from all intentional tort claims, leaving plaintiffs without a civil remedy. Absent congressional action, they cannot recover if a TSO assaults them, unlawfully detains them, or unlawfully lodges a criminal complaint against them. All of this is because my colleagues look through a lens that legislates “criminal” into a provision it nowhere appears.

This is not what Congress intended, as it enacted § 2680(h) to serve as a broad remedy against tortious conduct. It also ignores Congress’s definition of “investigative or law enforcement officer,” which we must apply “even if it varies from that term’s ordinary meaning.”

In view of these principles, I disagree with my colleagues’ reasoning. Instead of relying on non-textual sources, we must apply § 2680(h)’s plain language; other statutes, the canons, and legislative history (i.e., authorities outside of the proviso) cannot defeat its words. Because the text tells the tale, I part with today’s holding.

In a footnote, the majority responds to Judge Ambro’s assertion that the statute’s text is unambiguous with, “Would it were so.”

Both opinions are exceptionally good, and it’s inspiring to see such high-caliber work devoted to an appeal that easily could have been (and originally was on track to be, it appears) disposed of as a routine pro se appeal without argument or counsel on both sides.

Joining Krause was Scirica, with Ambro dissenting. Arguing counsel were Mark Sherer for the government and former Smith clerk Paul Thompson of McDermott Will as court-appointed amicus curiae on behalf of the pro se trial plaintiffs. The court thanked Thompson for accepting the case pro bono and for the quality of his briefing and argument.

“Thomas Hardiman is back at work”

Impossibly, Judge Hardiman was the subject of feverish speculation right up until President Trump’s announcement of someone else as his nominee for the Supreme Court, again. Last year, it was Justice Gorsuch; this week it was D.C. Circuit Judge Brett Kavanaugh. While I’m glad Judge Hardiman is being treated as such a strong candidate, I sure don’t envy him these public ordeals.*

Today, Geoff Mulvihill of the Associated Press has this excellent story, headlined, “Twice a Supreme Court runner-up, Thomas Hardiman is back at work.” It includes quotes from Chief Judge Smith and Judge McKee, as well as from friends who have spoken to Judge Hardiman. Here are some highlights:

Former Sen. Rick Santorum, a Pennsylvania Republican, said Tuesday that Judge Hardiman was taking the letdown “very well.”

“He said to me, ‘When you grow up on the other side of the tracks, you’re used to taking a few bumps,‘” Mr. Santorum said.


Mr. Santorum, who has known Judge Hardiman for decades, said the two-time finalist was wondering if there was a reason he keeps missing out. Mr. Santorum blamed an “inside-the-Beltway mentality” that “you’ve got to pick someone from Yale” — as Mr. Trump did.

Mr. Santorum said he was more disappointed than Judge Hardiman, saying he “really thought Trump was going to do something different.”


[Ken] Gormley said Judge Hardiman texted him that he knows Judge Kavanaugh and that “he’s a great person and a great judge, and he thinks he’ll make a great justice. He was happy for him.”


Judge Smith said that in recent weeks, Judge Hardiman had been making sure his judicial duties were up to date, lest he leave his colleagues in the lurch if he left the appeals court abruptly.

“I certainly don’t expect that Judge Hardiman will change in any way,” Judge Smith said. “He’s a solid guy.”


“At least he made it to the playoffs,” said Theodore McKee, another 3rd Circuit judge.

Well worth reading in full.


* I had a tiny ordeal of my own on Monday. The New York Times editorial page contacted me on Monday morning to ask if I’d write an op-ed about Judge Hardiman to run that night if he was the choice. Flattering!

I, a fool, figured it wouldn’t be too hard—I’m pretty up-to-speed on the Judge’s record, and I write stuff the same day for this blog all the time, right? Wrong. It was agony. I was still frantically revising at 8:59 p.m. when word of the choice finally leaked out.

I’m a bit embarrassed when I think how hard that day was for me, yet how much harder it must have been for Judge Hardiman and his many supporters.

Two new opinions [updated]

Holland v. Rosen — civil — affirmance — Ambro

Until last year, New Jersey relied on monetary bail to ensure defendants’ appearance at their trials. The opinion in this case explains how this system produced perverse results: “In practice, the State’s reliance on monetary bail resulted in the release of defendants who could afford to pay for their release, even if they posed a substantial risk of flight or danger to others, and the pretrial detention of poorer defendants who presented minimal risk and were accused of less serious crimes.” So New Jersey replaced its cash-bail-based system with one that relied mainly on non-monetary measures ranging from monthly phone check-ins to electronic monitoring and home confinement, and the state’s pre-trial jail population dropped by over 20%.

That sounds like good news for everyone … except for those wealthier criminal defendants who before would have been able to just write a check but now faced restrictions on their pre-trial liberty. One of them challenged the new regime, represented by Kirkland & Ellis with Paul Clement handling the oral argument personally, seeking an injunction to prevent the state from imposing any restrictions on him without first offering him monetary bail, but today the Third Circuit rejected his challenge and affirmed. The Third Circuit identified the key legal issue as whether there is a federal constitutional right to monetary bail as an alternative to non-monetary conditions of pretrial release, and, “Our answer is no.”

Joining Ambro were Fuentes and Restrepo. Arguing counsel were Paul Clement of Kirkland & Ellis for the challengers, Stuart Feinblatt of the NJ AG’s office for the state, and Alexander Shalom of ACLU of NJ for amici supporting the state.

UPDATE: how on earth did the opinion omit the critical fact that the defendant (arrested for his role in a bar fight) was a Cowboys fan? S.P. Sullivan has the story at


Walsh v. Defenders Inc. — civil / class action — affirmance — Greenberg

The Third Circuit affirmed a district court’s order remanding a class action to state court under the local controversy exception to jurisdiction under the Class Action Fairness Act. CAFA allows class-action defendants to remove larger class actions to federal court, and the local-controversy exception allows class plaintiffs to get some cases back to state court. The outcome here turns on the specific facts of what the opinion describes as a “confusing case.”

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

“Thomas Hardiman could be in for quite a birthday gift” has a story today, link here, headlined “This Massachusetts native is reportedly among the finalists to be Donald Trump’s Supreme Court pick.” The title of this post is the sub-head of the story.

The article notes that it was reported today that Judge Hardiman is one of four potential nominees for the current Supreme Court vacancy for whom the White House has prepared a “rollout package,” suggesting he’s one of the four finalists.

The story concludes:

It’s still unclear where exactly Hardiman ranks among that final four. NPR reported Thursday night that he is “still in the mix” but “seen as fourth.” Either way, it does certainly seem like the Waltham native could be in for a nerve-wracking birthday.

An aside: Do I read No. I have an automatic Google search set up so that I get an alert whenever the phrase “Third Circuit” appears. That’s how I find almost all of the items that I re-post. Sometimes I worry that people think I spend all my time surfing the web instead of practicing law. (I don’t.)

Two new opinions

Bakran v. Secretary Dept. Homeland Security — civil / immigration — affirmance, basically — Shwartz

The Third Circuit today rejected a citizen’s challenges to a statute that prevents persons convicted of certain sex offenses from sponsoring a family member to enter the country. The opinion’s introduction summarizes ably:

Ahmed Bakran appeals from the District Court’s order granting summary judgment in favor of the Secretary of the United States Department of Homeland Security, the Director of the United States Citizenship and Immigration Services (the “USCIS”), and the Attorney General (“Defendants”) on Bakran’s statutory and constitutional challenges to the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 402(a), 120 Stat. 587, 622-23 (2006) (the “AWA”), and related agency memoranda.

The AWA restricts the ability of a United States citizen convicted of a sex offense to sponsor an immediate relative’s immigration application. Bakran claims that certain protocols used to enforce the AWA violate the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (the “APA”). The protocols he challenges, however, simply guide the Secretary’s determination, and as we explain herein, we lack jurisdiction to review them.

Bakran also asserts that the AWA violates his right to marriage and is impermissibly retroactive. The AWA does not infringe his marriage right but rather deprives him of an immigration benefit to which he has no constitutional right. Moreover, because the Act is aimed at providing prospective protection, it is not  impermissibly retroactive. Therefore, we will vacate the District Court’s order granting summary judgment to Defendants on Bakran’s APA claims, and remand with directions to dismiss the APA claims for lack of jurisdiction, and affirm the District Court’s order denying relief on his constitutional and retroactivity challenges to the AWA.

Joining Shwartz were Greenaway and Simandle DNJ by designation. Arguing counsel were Nicklaus Misiti of New York for the appellant and Sara Wilson for the government.

Clientron Corp. v. Devon IT — civil — reversal — Greenaway

In an odd and interesting case today, the Third Circuit vacated a district court’s order that pierced the corporate veil as a sanction for egregious discovery abuse, but the court left the door open to a significant sanction being reimposed on remand.

Joining Greenaway were Krause and Jones MDPA by designation. Arguing counsel were John van Loben Sels of California for the appellant and Gary Samms of Obermayer Rebmann for the appellees.

Three new opinions, including a major immigration appeal

S.E.R.L. v. AG — immigration — affirmance — Jordan

This appeal posed a fascinating tension: immigrant advocates urged the court not to apply Chevron deference. Broadly, conservatives today tend to oppose immigration and Chevron deference, while liberals tend to favor both. When the “liberal” side advances the “conservative” position, as here, the familiar ideological guideposts are harder to read.

The legal issue in today’s case was whether a Honduran woman and her children qualified for withholding of removal under the Immigration and Nationality Act as members of a “particular social group.” Their group, they argued, consisted generally of family members of domestic-abuse victims. The Board of Immigration Appeals had interpreted “particular social group” narrowly, in a way fatal to the family’s claim here, and the family argued that its strict test wasn’t entitled to Chevron deference.  Today, the Third Circuit rejected their position, holding that the BIA’s interpretation is entitled to Chevron deference and denying the petition for review.

Joining avowed Chevron foe Jordan were Krause and Greenberg. Arguing counsel were Russell Falconer of Texas for the family and Sheri Glaser for the government. A footnote in the opinion thanked several groups for filing amicus briefs “which have assisted our consideration of the legal issues before us and also shine a light on an issue of international concern.”

Minarsky v. Susquehanna Co. — civil / employment discrimination — reversal — Rendell

A county secretary alleged that she was subjected to years of sexual harassment by a superior, the since-fired head of the county’s veterans-affairs department, and she sued various defendants including the county based on a theory vicarious liability. The district court granted summary judgment in favor of the county, but today the Third Circuit reversed, holding that whether the county had satisfied the Faragher-Elllerth affirmative defense to vicarious liabililty for workplace harassment should be decided by a jury.

Joining Rendell were Greenaway and Fuentes. Arguing counsel were David Koller of Koller Law for the secretary, Dana Zlotucha of Kreder Brooks Hailstone for the county, and Gerald Hanchulak for the superior.

Wayne Land & Mineral Gp. v. Delaware River Basin Comm’n — environmental — reversal — Jordan

The Third Circuit today reversed a district court’s dismissal of a suit brought by a company trying to keep the Delaware River Basin Commission from regulating its fracking work. The relevant law allows the commission to regulate a “project,” and the Third Circuit held that that term in ambiguous and remanded for fact-finding on the drafters’ intent.

Judge Scirica wrote a brief separate opinion. The signature line states simply that the opinion is “concurring,” and it ends with the statement that “I concur,” but the body of the opinion states that he agrees with part of the court’s opinion but has a concern that “precludes him from joining in full.” Specifically, he joined with the court’s ambiguity analysis but disagreed with the opinion’s inclusion of an assessment of the strengths and weaknesses of other issues that the district court will decide on remand.

(Readers may recall that is the case in which a lawyer fainted during the original oral argument.)

Joining Jordan were Hardiman and Scirica at least in part, and Scirica concurred. Arguing counsel were David Overstreet of Overstreet & Nestor for the appellant, Kenneth Warren of Warren Environmental Counsel for the commission, and Jordan Yeager of Curtin & Heefner for an intervenor group.

Judge Bibas shares a tribute to Justice Kennedy

Third Circuit Judge Stephanos Bibas has written a tribute to soon-to-retire Supreme Court Justice Anthony Kennedy, whom Judge Bibas clerked for in the October 1997 term. It is posted on Scotusblog, a link is here. It’s a charming essay, describing how Bibas’s teeth chattered at his clerkship interview until the Justice calmed him down with conversation and warmth.

Here is how it closes:

This past year, I ran the judicial nomination-and-confirmation gauntlet. From beginning to end, Justice Kennedy took the time to offer his unflagging personal support and encouragement. And at my investiture earlier this spring, he impressed upon us how each generation must pledge anew its fidelity to the rule of law and do its part to carry out this sacred trust.

When the public looks at justices of the Supreme Court, it sees only august black robes and solemn faces. But those of us who know Justice Kennedy know that he embodies dignity and respect for all, in his care for others no less than in his decisions. I will strive to live up to his example.

Sweet vindication for the Third Circuit

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.

Another cert grant with Third Circuit implications

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.

Cert granted in Fosamax case

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.

Porter’s committee vote delayed again [updated]

David Porter will have to wait at least another week for a Senate Judiciary Committee vote on his nomination to the Third Circuit.

Porter originally was scheduled for a committee vote on June 21, but the vote was held over for a week. At the time, Judiciary Chairman Chuck Grassley said it was held over at Democrats request. But Senator Jeff Flake has announced that he is blocking the Eleventh Circuit nomination of Britt Cagle Grant over tariff policy, and Roll Call reported that Porter’s nomination would “likely” be stalled by Flake as well.

Today, Porter and Grant both were on the agenda for Judiciary Committee votes on their nomination, but Senator Grassley announced:

We will not be able to vote on two nominees to the appellate court even though they are ready for votes. So Britt Grant Eleventh Circuit and David Porter Third Circuit will be held over another week.

No further explanation.


UPDATE2: Good coverage on the Flake blockade of Porter and Grant by The Hill on June 30 here.

Meanwhile, the other pending Third Circuit nominee, Paul Matey, still has not been set for a Judiciary Committee hearing and has not received his ABA rating yet. It looks to me like he will be the next circuit judge the ABA rates. Four judges nominated after him already have received their ABA ratings to accommodate the committee’s hearing schedule.


Judge Hardiman is back in the spotlight after Justice Kennedy retires

Supreme Court Justice Anthony Kennedy announced his retirement yesterday morning, and already several sources have reported that Third Circuit Judge Thomas Hardiman is one of the leading candidates to be nominated by President Trump to replace him.

Judge Hardiman is one of 25 judges on Trump’s announced list of potential Supreme Court nominees, and Trump stated yesterday that the nominee for Kennedy’s seat will come from that list.

Numerous sources already have named Hardiman as a frontrunner. For example:

  • Alex Swoyer of the Washington Times reported that Fox News has identified five frontrunners, and one of them is Judge Hardiman. The others: Brett Kavanaugh, Amy Coney Barrett, Amul Thapar, and Raymond Kethledge.
  • Meanwhile, a different Fox News report, this one by Alex Pappas, named Hardiman as one of six “early frontrunners,” along with the other four mentioned above plus Joan Larsen.
  • In Bloomberg Law, Patrick Gregory informally polled Supreme Court watchers and reported that Hardiman was one of four names (along with Kavanaugh, Thapar, and Don Willett) who came up repeatedly. Kenneth Jost noted that Justices Breyer and Kagan both were runners-up for earlier openings before being nominated themselves.
  • And, finally, CNN reporters Ariane de Vogue, Eli Watkins, and Amanda Morris had this report spotlighting six contenders and included Hardiman, who they said “has a personal story that appeals to the President.” The other five they named were Kavanaugh, Barrett, Kethledge, Thapar, and Mike Lee.

Wes Venteicher had this interesting story yesterday for the Pittsburgh Tribute-Review, headlined “Could Supreme Court retirement open door for Fox Chapel’s Hardiman?” The story quoted Judge Fisher:

Trump reportedly summoned Hardiman, 52, and Colorado’s Neil Gorsuch to Washington before announcing his nomination. He ultimately chose Gorsuch to fill a vacancy created by the death of former Justice Antonin Scalia.

“It had to be an honor. I would expect he’ll be there again,” fellow Third Circuit Judge D. Michael Fisher said Wednesday.

Fisher, who said he is close friends with Hardiman, said the two have never had any discussions on social issues.

“I think he’s conservative in the way he approaches cases and looks at what our job is in interpreting statutes and trying to ascertain what Congress means, and how you evaluate a statute, (and) how you evaluate what’s spoken by administrative agencies,” Fisher said.

“I certainly think that he’d be an excellent person to be selected this time, and I don’t know of any reason why he wouldn’t be seriously considered,” he said.

And for Business Insider, Allan Smith had this in-depth report, quoting Carter Phillips and former Judge Robert Cindrich.

We shall see!

New opinion — TCPA provides no relief from text-message avalanche [updated]

Dominguez v. Yahoo — civil / consumer — affirmance — Roth

Some poor guy named Dominguez bought a cell phone that was assigned a phone number that used to be someone else’s, and that someone else had subscribed to get a text message every time she received an email. All Dominguez’s efforts to stop these messages were for naught, so he got 27,800 text messages from Yahoo—about 50 texts a day, every day, for 17 months.

Improbably, Dominguez did not kill anyone, and instead he sued Yahoo under the Telephone Consumer Protection Act, which makes it unlawful to use an autodialer to send non-emergency text messages. Today, the Third Circuit affirmed a ruling against poor Dominguez, holding that he failed to show that Yahoo’s text-notification service was an autodialer because it wasn’t calling numbers randomly or sequentially. No doubt he will find great solace in the court’s acknowledgement that “[t]here can be little doubt that Dominguez suffered great annoyance as a result of the unwanted text messages.”

Joining Roth were Shwartz and Pappert EDPA by designation. The case was decided without oral argument.

Update: a blog post by TCPA defense lawyer Eric Troutman exults:

Today’s ruling … is a huge– and undoubtedly satisfying– victory for Yahoo!, but it also represent [sic] a massive shift in case law in favor of a limited reading of ATDS [automatic telephone dialing system], just when courts seemed to be content to continue reading the ATDS definition broadly. What an amazing development.

A memorable footnote

In the course of denying a petitioner’s mandamus petition today in an unpublished opinion, the Third Circuit panel included this understated footnote:

As Petitioner has pointed out, his “comment” that “if the US Attorney intends to strip [him] of his first and thirteenth amendment rights … [t]he US Attorney can rest assured that will happen only after [he] runs out of his second amendment rights,” may well “earn [him] additional visits from … federal law enforcement officials.” Petition, at 5.

Porter nomination update: postponed committee vote and responses to post-hearing questions [updated]

The Senate Judiciary Committee had been scheduled to vote today on the Third Circuit nomination of David Porter, along with several other judicial nominees, but at the hearing Committee Chairman Chuck Grassley announced that at the Democrats’ request the votes had been postponed one week.

Also today I obtained a copy of Porter’s written responses to post-hearing questions from committee members. A link to those responses, which run 38 pages, is here: Porter Responses to QFRs. The questions came from Senators Feinstein, Durbin, Whitehouse, Coons, Hirono, and Booker, all Democrats. At a quick glance, most of the questions appear to focus on Porter’s judicial philosophy, his past writings, and the extent of his involvement with a group that opposed Justice Sotomayor’s nomination and listed him as a co-founder (as discussed here).


UPDATE — my take:

New opinion: Third Circuit affirms “extraordinary” award of attorneys’ fees after voluntary dismissal

Carroll v. E One — civil — affirmance — Smith

Say you’re a lawyer who represented a litigant in district court, and you lost, and your client has decided to appeal, and a central issue in the appeal involves whether you did something wrong: should you handle the appeal yourself? Not in my view. No matter how sure you may be that you did not screw up, if the appeal will focus substantially on whether you screwed up, you’re the wrong one for the job.

In the last couple years there have been a few Third Circuit appeals where lawyers have not done as I suggest above, and it hasn’t gone well. Here’s a memorable one, an appeal from summary judgment against the client and over $28,000 in sanctions against the lawyer; the panel called the lawyer out by name throughout the opinion and flat affirmed.

Today, it happened again, and again it went badly for the side whose lawyer stayed on. The Third Circuit affirmed a district court’s award of over $127,000 in attorneys’ fees and costs after a voluntary dismissal with prejudice under Fed. R. Civ. P. 41(a)(2). The court recognized that attorneys’ fees and costs normally are not available after a voluntary dismissal with prejudice, but held that they may be awarded in extraordinary circumstances that were present here:

Exceptional circumstances include a litigant’s failure to perform a meaningful pre-suit investigation, as well as a repeated practice of bringing meritless claims and then dismissing them with prejudice after both the opposing party and the judicial system have incurred substantial costs. Because such exceptional circumstances are present in this case, the District Court’s award will be affirmed.

The opinion’s harshest language was directed at the fact that one client said that he learned that he was a plaintiff in the suit only after the firm emailed him, seemingly after the suit was filed: “Such an uninformed rush to the courthouse skirts the norms of proper legal practice in pursuit of the fruits of aggregation. It should not be condoned.”

What gives me pause me about today’s ruling is that, while the basis for the award was counsel‘s actions–including actions apparently taken without the clients’ knowledge, and actions in other cases on behalf of other clients–the ones on the hook for the six-figure award here, I’d think, are the clients.

Joining Smith were Hardiman and Roth. Arguing counsel were Joseph Cappelli of Bern & Partners (formerly Bern Cappelli) for the appellants and Jan Miller of St. Louis for the appellee.

Judge Vanaskie named to college conference sports hall of fame

Third Circuit Judge Thomas Vanaskie was named last month to the Middle Atlantic Conference Hall of Fame. Judge Vanaskie was a star defensive back for the Lycoming Warriors football team before graduating in 1975.

You should read the entire news story on Lycoming’s website, link here, it’s wonderfully informative, but here is Judge Vanaskie’s quote:

“It’s a tremendous honor from the league I played for so long ago,” Vanaskie said. “To be inducted into the MAC Hall of Fame, that means the world to me. I was fortunate enough to play for Frank Girardi. He was the defensive backs coach when I came there as a freshman and as luck would have it, I was moved to defensive back. I was supposed to be a linebacker but I was undersized for that. He started me in my third game as a freshman. He got me started and I had great coaches and great teammates throughout. I also had great professors. Lycoming College did such a great job to prepare me and it’s such an underrated school. I just had great experiences there.”

And his football coach said, “It’s been a long time since I coached him but I’ll tell you what, he’s one of the ones I remember,” and:

“When he was a player for me, he had such great passion, not only for playing football but in his academics,” Girardi said. “He always had a great passion in whatever he did and obviously he’s so successful now as a judge.”

In 2013, Judge Vanaskie was named to the CoSIDA Academic All-America Hall of Fame, reportedly one of only 10 inductees from a Division III school during the past 40 years.

Congratulations Judge Vanaskie!

New opinion — Third Circuit issues opinion in transgender-bathroom case

Doe v. Boyertown Area SD — civil — affirmance — McKee

Last month, a Third Circuit panel dramatically announced just minutes after the oral argument that it would affirm the district court’s ruling in favor a school district policy that allowed transgender students to use bathrooms corresponding with their gender identity. My post on the oral ruling is here, and a link to post-argument commentary prediction an en ban petition and criticizing the panel as “Activist Judges” is here.

This afternoon, the Third Circuit issued its opinion, stating, “Although we amplify the District Court’s reasoning because of the interest in this issue, we affirm substantially for the reasons set forth in the District Court’s opinion.”

Joining McKee were Shwartz and Nygaard. Arguing counsel were Randall Wenger of the Independence Law Center for the appellants, Michael Levin of the Levin Law Group for the school district, and Ria Tabacco Mar of the ACLU for an intervenor.

New opinion — a big Third Circuit immigration ruling

Osorio-Martinez v. AG — immigration — reversal — Krause

In 2016, the Third Circuit issued a blockbuster immigration ruling in Castro v. US DHS, holding that federal courts lack jurisdiction to hear a challenges to removal brought by a group of women and children caught, on US soil, shortly after entering the US, and that this statutory denial of jurisdiction did not violate the Suspension Clause. It was a crushing loss for immigrant advocates and one of the Third Circuit’s most controversial recent opinions.

Today, just two years later, a different Third Circuit panel heard a second appeal brought by four of the children and their mothers who were among those denied a forum in Castro. The opinion’s introduction explains:

Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile (SIJ) status—a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements.

That one difference, the court held today, is dispositive:

[W]e are now confronted with a matter of first impression among the Courts of Appeals: Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal? We conclude that it does.

The court observed that the ” Government’s decision to continue seeking removal is particularly noteworthy because, as far as we are aware, until very recently DHS has never attempted to remove SIJ-classified children back to their countries of origin, much less on an expedited basis.”

How broadly available is SIJ status? Is today’s ruling just a narrow exception, or does it promise to swallow the Castro rule? I didn’t notice any discussion of these questions in today’s opinion, and I’m hoping that immigration experts will shed light here in the days ahead.

Joining Krause were Ambro and Scirica. Arguing counsel were Jessica Rickabaugh of the Tucker Law Group for the appellants and Joseph Darrow of the DOJ for the government. Other notable counsel on the briefs include Nancy Winkelman (formerly of Schnader, now at the Philadelphia District Attorney’s office) for amicus appellant and pending Sixth Circuit nominee Assistant Attorney General Chad Readler for the government.

New opinion

US v. Ramos — criminal — reversal (for government) — Roth

The Third Circuit today vacated a criminal sentence on the government’s appeal, holding that Pennsylvania’s crime of second-degree assault with a deadly weapon, 18 Pa. CS § 2702(a)(4), is categorically a crime of violence and that the defendant therefore qualified as a career offender under the advisory Sentencing Guidelines (even though he did not under the ACCA).

Joining Roth were Smith and Hardiman. Arguing counsel were Robert Zauzmer for the government and Arianna Freeman for the defendant.

New opinion — Third Circuit finds that misconduct by prosecution doesn’t warrant reversal but that erroneous imposition of a sentencing enhancement does

US v. Welshans — criminal — partial reversal — Restrepo

The Third Circuit today affirmed a defendant’s child-pornography conviction but reversed his sentence.

As to the conviction, the court rejected the defendant’s argument that it violated due process to allow in evidence and argument that the computer files included “deeply abhorrent” videos and images involving very young children. Although the court agreed that the prosecution committed misconduct that was plain, and agreed that the evidence should have been excluded under Rule 403, it denied relief given the prosecution’s overwhelming evidence.

As to the sentence, the panel majority held that the sentencing court erred in applying the Sentencing Guidelines enhancement for obstruction of justice because his acts (moving computer files into the recycling bin when he was told police were on their way) were contemporaneous to his arrest and did not materially hinder the investigation. The majority also held that the government waived the material-hinderance point by first raising it at oral argument.

Joining Restrepo were Ambro in full and Fuentes as to the conviction; Fuentes dissented on the sentencing reversal. Arguing counsel were Renee Pietropaolo for the defendant and Laura Schleich Irwin for the government.

New opinion — Third Circuit rejects EMTALA whistleblower appeal

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.

Senator Hatch asserts that the blocking of Haywood’s nomination was not “a blue-slip issue”

At the outset of this morning’s hearing on the Third Circuit nomination of David Porter, Senator Orrin Hatch said the following, starting at 23:15 in the video:

Now, we may also hear about another nomination to the Third Circuit, and how there are purportedly differences in how the blue slip was treated then. But the issue there was the Leahy-Thurmond rule under which the Senate generally stops confirming judicial nominees around the mid-summer in a presidential election year. Chairman Grassley gave our colleagues from Minnesota almost seven months to return blue slips from Judge Stras. President Obama nominate Rebecca Hayward [sic] on March 15, 2016.  Giving the senators from Pennsylvania the same amount of time as the senators from Minnesota would have meant a hearing would not have been held until the late summer at the earliest. So the characterization of this as a blue-slip issue, as Chairman Grassley has explained before, is inaccurate.

And here is my respectful response: liar, liar, pants on fire.

David Porter’s Senate Judiciary Committee hearing was this morning [updated]

Third Circuit nominee David Porter appeared this morning before the Senate Judiciary Committee. I did not attend the hearing in person but I watched it live-streamed online. Chief Judge Smith (who Porter clerked for on the district court) attended.

I posted my reactions to Porter’s testimony as it happened on Twitter, and a link to the thread is here. As I summarized there, “my immediate reaction is that Porter acquitted himself superbly well and did everything he needed to do to assure his confirmation.”

The only surprise came when Porter explained that, although he had been listed as a leader of a state coalition formed to oppose Justice Sotomayor’s nomination, in fact his only involvement had been a 10- or 15-second phone call from a person calling from the conservative Judicial Crisis Network, during which he agreed to participate in a second call but ended up having no further involvement. He acknowledged that his name was listed as a leader of the group but said that was done without his authorization and he didn’t find out about it until 2014. JCN has now scrubbed its website of the materials in question. That’s all rather mind-blowing, but I don’t expect it to end up being a barrier to Porter’s confirmation.

Buzzfeed reporter Zoe Tillman was at the hearing, and her informative live-tweet thread is here.

I’ll update this post as news coverage of the hearing appears.

UPDATE: In the Legal Intelligencer, Ellis Kim has this story, headlined, “Third Circuit Nominee Downplays Political Past in Hearing.”

UPDATE2: A story by Tracie Mauriello from the June 12 Pittsburgh Post-Gazette, headlined, “Even founders appear unaware of group at center of judicial nomination controversy,” featuring quotes from others listed as founders of the PA anti-Sotomayor group.

New opinion — sexual abuse by guards can constitute cruel and unusual punishment

Ricks v. Shover — prisoner civil rights — reversal — Rendell

The Third Circuit today issued an important new prisoner-rights ruling, holding that a single act of sexual abuse without force or injury can violate the Eighth Amendment:

Whether sexual abuse can constitute “cruel and unusual punishment” under the Eighth Amendment is a matter of first impression in our Court. We write today to state in plainest terms that it does. Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact.

The court reversed the district court’s dismissal of the prisoner’s Eighth Amendment sexual-abuse claim against a guard who allegedly rubbed his erect penis against the prisoner during a pat-down search. It stated, ” Absent more specific allegations as to the severity of Keil’s conduct or the surrounding context, including the need for the search, we cannot conclude that he plausibly violated Ricks’ right to be free from “cruel and unusual punishments,” but remanded to allow the prisoner to amend his complaint. The court also reversed the dismissal of an excessive-force claim against a supervisor who allegedly slammed the prisoner into a wall when he protested.

Joining Rendell were Chagares and Scirica. Arguing counsel were former Smith clerk and Boies Schiller associate James Kraehenbuehl for the prisoner and Claudia Tesoro of the PA Attorney General’s office for the guards. The court noted that Kraehenbuehl represented the prisoner pro bono and thanked him for “the high caliber of representation” he provided.

ABA rates David Porter “Qualified” [updated]

This morning the American Bar Association rated Third Circuit nominee David Porter as “qualified.” The rating committee’s vote was unanimous. Link here.

The ABA Standing Committee on the Federal Judiciary rates judicial nominees as well qualified, qualified, or not qualified. Stephanos Bibas was rated well-qualified, as have been most of President Trump’s circuit nominees. (And as was Rebecca Haywood.) Other circuit nominees rated qualified were John Bush for the Sixth Circuit, Ryan Bounds for the Ninth Circuit, and Britt Grant for the Eleventh Circuit; Steven Grasz for the Eighth Circuit was rated not qualified with one abstention.

Porter’s Senate Judiciary Committee hearing is tomorrow morning.

Also today, Tracie Mauriello has an excellent article on Porter’s nomination in the Pittsburgh Post-Gazette, link here. It begins, “David Porter will almost certainly join the bench of the 3rd U.S. Circuit Court of Appeals, but the …  Trump judicial nominee first will have to run a gantlet of angry Democrats who believe he never should have gotten this far in the confirmation process.”

UPDATE: the last time a Third Circuit nominee was confirmed with an ABA rating of Qualified or below was Judge Fuentes in 1999. While unconfirmed G.W. Bush nominee Shalom Stone was rated Qualified, all of G.W. Bush’s and Obama’s confirmed Third Circuit nominees were at least majority Well Qualified.

But outside the Third Circuit there have been plenty of Qualified circuit judges confirmed in recent administrations, notably Jane Kelly for the Eighth Circuit, William Pryor for the Eleventh Circuit, and Janice Rogers Brown for the D.C. Circuit.

UPDATE 2: Andy Simpson, a fine Virgin Islands appeals lawyer and President-elect of the Third Circuit Bar Association, offers this thoughtful response to my post:

I suggest that you are putting too much emphasis on ABA ratings.

Current SCOTUS CJ John Roberts was given a Q for his nomination to the DC Circuit
Current SCOTUS J Sonia Sotomayor was given a majority Q, minority WQ for her nomination to the SDNY
Judge McKee was given a majority Q, minority NQ for his nomination to the Third Circuit

Three circuit stalwarts, Richard A. Posner, Frank H. Easterbrook and J. Harvie Wilkinson III were in the same boat as Judge McKee: All received majority Q, minority NQ ratings for their circuit nominations.

I basically agree with Andy. I meant the WQ-vs-Q stuff above mainly for nerdy curiosity, not to suggest it’s a big deal. As I posted on Twitter, “Bottom line, I think the Qualified rating is good-enough news for supporters of Porter’s nomination and another reason to believe he is on the path to being confirmed.”

Porter nomination update: hearing Wednesday, Senate questionnaire available, and liberal groups come out strongly opposing

Three significant developments on the Third Circuit nomination of David Porter:

  • First, I am reliably told his Senate Judiciary hearing will be this Wednesday. I haven’t seen that announced yet and will update this post when I confirm it. [UPDATE: the Committee has confirmed that Wednesday’s hearing will include Porter and five district-court nominees.]
  • Second, Porter’s questionnaire is now available at this link.
  • Third, the liberal Alliance for Justice has released this report announcing their strong opposition to his nomination, which is expected. (I learned about it from How Appealing.)

Porter still has not received a rating from the ABA. They still have four nominees to rate from the previous wave (link here), so it’s possible the rating will not be released in time for the Judiciary hearing.

UPDATE 2: People for the American Way also came out against Porter’s nomination today in a letter (link here) sent to the Judiciary Committee, stating, “Nominated over the objections of a home state senator and with a disturbing ideological record, Porter should not have a hearing, let alone be confirmed.”

UPDATE 3: two more national groups, the Leadership Conference on Civil and Human Rights (link here) and the National Council of Jewish Women, also submitted letters opposing the nomination today.

UPDATE 4: the state group Why Courts Matter-PA has set up a website opposing Porter’s nomination called The David Porter Files, link here, and the leaders of several state groups including the AFL-CIO and Planned Parenthood have issued statements in opposition.

New opinion — Third Circuit rejects government’s belated challenge to suppression

US v. Kalb — criminal — affirmance (for defendant) — Scirica

By statute, the government is allowed to file an interlocutory appeal from an order suppressing evidence; “The appeal in all such cases shall be taken within 30 days after the decision, judgment or order has been rendered and shall be diligently prosecuted.” 18 USC § 3731. In this case, the district court ordered suppression and, more than 30 days later, the government filed a motion to reconsider, which the defendant argued was untimely but the district court denied on the merits. Today, the Third Circuit held that § 3731’s deadline is jurisdictional, and that a motion for reconsideration filed after the deadline does not support jurisdiction to review the suppression order; the court also affirmed the denial of the consideration motion because it relied on arguments the government could have made earlier. Thus, today’s opinion is a rare bird, an affirmance in a criminal appeal that comes out in favor of the defense.

Joining Scirica were Jordan and Hardiman. Arguing counsel were Robert Zauzmer of the EDPA US Attorney’s office for the government and Brett Sweitzer of the EDPA federal defender’s office for the defendant, both stellar. The argument audio is here.

New opinions — three affirmances

Bonilla v. Sessions — immigration — affirmance — Shwartz

The Third Circuit denied a El Salvadoran citizen’s petition for review of removal, rejecting the man’s argument that his right to due process was denied when reasonable-fear-screening proceedings before the immigration judge went forward without his counsel. Although the hearing notice said that counsel should appear with the client at the hearing, the lawyer (unidentified in the opinion except to clarify that appellate counsel was different) “assumed it would be held telephonically.” The court did not decide whether parties have a right to counsel at a reasonable-fear hearing, denying relief instead because the man had notice of his right to counsel and failed to show prejudice.

Although today’s opinion does not say so, Pacer shows that the panel issued a non-precedential opinion in the case on March 15. Two months later, after the mandate had issued, the government filed a motion to publish, which the panel granted. Motions to publish are an under-utilized tool, in my view. [UPDATE: after my original post the order granting the motion to publish was posted on the court’s website.]

Joining Shwartz were Jordan and Krause. The case was decided without argument.


US v. Foster — criminal — affirmance — Jordan

The Third Circuit today affirmed two criminal convictions, rejecting five different challenges to their convictions and sentences: a Fourth Amendment issue, a 404(b) admissibility claim, a sufficiency-of-the-evidence challenge to evidence of constructive possession of a firearm, and two firearm-use sentencing-enhancement claims.

Joining Jordan were Shwartz and Krause. Arguing counsel were Renee Pietropaolo of the WDPA federal defender for one defendant, Eleni Kousoulis of the DE federal defender for the other, and Elizabeth Van Pelt of the DE US Attorney’s office for the government.


US v. Shaw — criminal — affirmance — Restrepo

Finally, the Third Circuit upheld a former prison guard’s convictions for sexually assaulting an inmate and obstruction of justice. The court rejected challenges to the sexual-assault instructions (splitting with the Tenth Circuit), the sexual-assault sufficiency, two evidentiary challenges, and a speedy-trial claim.

Joining Restrepo were Smith and McKee. Arguing counsel were Robert Pickett of Pickett and Craig for the defendant and Desiree Grace of the NJ US Attorney’s office for the government.

Column: activist judges decided transgender-bathroom appeal, en banc rehearing request likely

Tony Perkins, the president of the conservative Family Research Council who gained attention earlier this year for saying that President Trump gets “a mulligan” for his alleged affair with Stormy Daniels, wrote a column published today at Patriot Post, the headline of which described the three-judge Third Circuit panel who decided the recent transgender-bathroom appeal as “Activist Judges.”

Describing co-counsel for the plaintiffs as “our friends,” and quoting one of them in his column, Perkins writes, “odds are the group will appeal to the full Third Circuit court.”

In another media interview published yesterday in the Mercury News, the same lawyer said, “The Supreme Court has already spoken,” and, “[t]his decision is out of step with longstanding legal protection for privacy.” That story similarly reports that the advocacy groups who brought the suit are considering an appeal.

In his column, Perkins writes that cases like this one show “why President Trump’s judicial confirmations matter”:

Back in November of last year, the Senate sent reinforcements to the Third Circuit in the form of Judge Stephanos Bibas, the first White House pick to fill a vacancy on that bench. Two more are waiting in the wings — Paul Matey and David Porter, both strict constructionists who are waiting for their turn on the fast track of Sen. Chuck Grassley’s (R-IA) committee. Once they make it through the process (which, given the lightning-quick pace of this Senate’s confirmations, could be any day) maybe they can help inject some common sense into Alexis’s case.


Oral argument as kabuki

In January, Third Circuit Judge Kent Jordan presented on the topic of oral argument at a Third Circuit Bar Association CLE in Delaware, and one thing in particular that he said has been rolling around in my mind ever since. It’s commonplace to advise lawyers that oral argument isn’t an interrupted speech but rather a respectful conversation, and that’s good enough advice as far as it goes. But Judge Jordan emphasized that oral argument is something unique, a highly stylized form of communication like kabuki theater.


Kabuki is a Japanese dance-drama style that’s over four centuries old. If you’re not familiar with it, here’s a description and here’s a video. I see from internet searching that kabuki is sometimes used as a metaphor for political posturing where the outcome is pre-ordained, but I don’t think that’s what Judge Jordan meant. Instead, he used kabuki as an example of a performance art with conventions that are arcane and rigidly observed and that require years of disciplined training for performers to master.

So understood, I think his kabuki metaphor for oral argument is illuminating in many ways. Let me suggest two, one concrete and one more abstract.

First—and this is one of the points Judge Jordan was making—when a judge begins to speak, you stop. Even mid-syllable. Even mid-important, carefully prepared, ever-so-devastating-syllable. For many lawyers, that is not normal conversation. We talk over each other all the time: to finish out a thought, to jump in when the other person seems to be winding up, to signal enthusiasm. Hitting pause the instant a judge starts, and not talking again until the judge is done, doesn’t come naturally at all to many of us. It’s kabuki not conversation, and it takes commitment and discipline.

I’ll add that this is especially true for men, and most especially for men arguing before judges who are women. One landmark study showed that, in conversations between men and women, men cut in 46 out of 48 times. Another study found that men are three times as likely to interrupt women as they are to interrupt other men. Sadly, these gender dynamics play out at oral argument, too. For example, while I was preparing for my last argument I listened to one Third Circuit argument that was so smart and elegant, spectacular in every way but one: he kept talking over the female judge on the panel. I don’t think that necessarily means that lawyer was a misogynist jerk, but it does show he needed to work on an argument skill.

My second oral-argument-is-like-kabuki example is my own idea, so don’t blame this one on Judge Jordan. The right tone for appellate oral argument is a challenge to define. Be crisp and prepared but not wooden. Be reasonable but not wishy-washy. Be persuasive but not too emphatic. Four parts advocate, one part law professor, add just a dash of actor. It’s hard enough to define the right tone—summoning forth that tone under the knee-melting stress of argument is much harder, and maintaining it under fire is hardest of all.

Most oral advocates, in my view, err on the side of over-certainty. We argue as if the law is all obvious, the facts on each point overwhelming. The problem isn’t just that adjectives and adverbs don’t persuade, or that appellate judges bristle at bombast. The deeper problem is that judges don’t want to hear how easy and obvious your case is. If they thought it was that simple, they probably wouldn’t have granted you argument.

Our natural impulse is to assure the judges how overwhelming our side is, but most judges don’t want pat answers to hard questions. They want lawyers who know the facts and the law cold who are willing to help them grapple with the hardest parts of the case. You ain’t much help with the grappling if all you can do is deny that any hard parts exist.

I confess, when I get a tough question at argument, my natural impulse is to respond with something like, “No, your honor, because the Supreme Court clearly has held ___.” But instead of over-selling, it’s often more effective to acknowledge the gray areas while still remaining firmly an advocate. More like this: “Well, that’s probably one of the crux issues in this case. I think the clearest sign that ___ is ___.”

Again, it goes back to Judge Jordan’s kabuki point. Hitting the right tone for persuasive oral argument is like suppressing your impulse to talk over a judge. It’s not familiar or natural, and it’s not as easy as “respectful conversation.” Before you can begin to master it, first you have to decide to work at mastering it.

Written judgment issued in transgender-bathroom appeal

The Third Circuit panel today issued a judgment in Doe v. Boyertown Area School Dist., No. 17-3113. A link is here. As I posted here earlier, the panel heard oral argument this morning and ruled from the bench shortly after.

The judgment states that a formal opinion will be issued later but the judgment will issue now. It states that the court affirms the district court’s denial of a preliminary injunction for substantially the reasons given in the district court’s “exceptionally well reasoned” opinion.

I’m eager to hear the audio of the oral argument, which the court has not yet posted.

Apart from being an important case, the procedural mechanics of the panel’s action here are notable. The judgment was posted on the precedential opinions page of the court’s website, but I don’t think this is a precedential opinion — it is not labeled as precedential nor titled as an opinion of the court — and, given the rapid timeframe, I’d guess it was not circulated to the entire court before entry as draft precedential opinions normally are, and as the formal opinion it mentions likely will be. That’s why I’ve referred to the earlier oral ruling and this written judgment as an action by the panel, like a non-precedential opinion, rather than a decision by the Third Circuit. But I’m not certain I’ve got that right, and I suspect it will not matter in the end.

Court affirms in transgender-bathroom appeal … a half hour after oral argument [updated with judgment and audio]

A panel of the Third Circuit heard oral argument today, held a brief recess, and then reconvened and announced that it would affirm the ruling below. Quite extraordinary.

The case involved access by transgender school students to the bathroom of their choice — that is, whether a school district could allow transgender students to use the bathroom corresponding with their gender, not their sex at birth. The suit was brought by school parents who claimed that the policy violated other students’ bodily privacy rights. The district court ruled in favor of the school district. Today’s argument was before Judges McKee, Shwartz, and Nygaard.

I wasn’t aware of a specific case where a Third Circuit panel had ruled from the bench after argument, but on Twitter Katie Romano pointed to a 2008 immigration appeal where it had happened. [UPDATE: Andy Simpson also pointed me to a 2001 Virgin Islands appeal where Chief Judge Becker read an opinion from the bench after argument, In re: Application for Change or Reassignment of Judge Pursuant to 28 U.S.C. §§ 144, 455 (3d Cir. May 30, 2001).] Still, extremely rare.

Early coverage by Jeremy Roebuck for the Philadelphia Inquirer here and by Bobby Allyn for WHYY here. UPDATE: and Mark Joseph Stern has a report for Slate here.

From Roebuck’s story:

Circuit Judge Theodore McKee said he and his colleagues – Judges Patty Shwartz and Richard Lowell Nygaard – recognized how important the case was to students at Boyertown Area Senior High School and wanted to resolve the issue before the students at the heart of the case, many of them seniors, graduated later this month.

Reading an order from the bench, McKee said that the judges agreed with the lower court that found the privacy of four students who sued the district in the Berks County borough last year had not been violated by administrators’ decision to allow transgender students into the bathrooms and locker rooms of their choice.

“We agree that the plaintiffs have not demonstrated a likelihood of success,” McKee said, reading from the bench, “and that they have not demonstrated that they will be irreparably harmed.”

UPDATE #2: The written judgment, issued the same day as the argument, is here.

UPDATE #3: The audio of the oral argument is here, and the ruling audio is here.

Third Circuit amends internal procedures involving initial en banc review [updated]

The Third Circuit today issued an updated version of its internal operating procedures, link here, along with an announcement describing the update, link here.

The gist of it is that the court has amended the IOPs to clarify the standard the court applies when deciding whether to grant initial en banc hearing — that is, en banc review before any panel decision. New IOP 9.2 states (using language previously in 9.4.2 and 9.5.4) that initial en banc hearing is extraordinary and occurs only when a majority “determines that the case is controlled by a prior decision of the court which should be reconsidered and the case is of such immediate importance that exigent circumstances require initial consideration by the full court.” The announcement states that the purpose of the amendment is “to provide a consistent procedure.”

UPDATE: I’d guess this change was spurred by the initial en banc hearing in Vooys.

A bunch of good Third Circuit oral arguments

If you want to get better at oral argument, how do you do it? I recently had a big Third Circuit argument (link to the audio here, if you’re curious), so I’ve been puzzling over that question a lot. You can work harder to prepare for each individual argument, you can read books about oral advocacy, and you can practice not saying, “I try not to read that many cases, your Honor. . . . That’s why I wore a suit today,” like this fellow did. All helpful.

But one of the best ways to improve at oral argument is to listen critically to good arguments. It’s easy to find good Supreme Court arguments, but finding circuit arguments takes a bit more work. The Third Circuit posts audio of all of its arguments online (low-quality audio, alas), and video of a handful, but you have to know which cases to look for.

For this post, I’ve pulled together links to some Third Circuit oral arguments by some excellent oral advocates. (Plus one Supreme Court argument because I couldn’t bear to leave Judge Bibas out.) To be clear, this isn’t a list of the best Third Circuit arguments or advocates — for each one linked here, there are many others I could have included. But if you’re looking for model arguments from our circuit, I believe this list will get you off to a good start.


Future Third Circuit judges and Third Circuit nominees

Cheryl Krause — Mitchell Partners v. Irex Corp.argumentopinion

Stephanos Bibas — Tapia v. US* — argumenttranscriptopinion

Peter Phipps (also Ted Olson and Paul Clement) — NCAA v. Governor II (panel) — argument [he starts at 47:10] — opinion

Rebecca Haywood (vs. Lisa Freeland) — US v. Thompsonargumentopinion

* Supreme Court argument.


Former Third Circuit judges

John Gibbons — Gov’t of V.I. v. Lansdaleargumentopinion

Timothy Lewis (vs. Robert Zauzmer)– US v. Kempargument [he starts at 32:20] — opinion


Former solicitors general

Paul Clement, Ted Olson — NCAA v. Governor II (en banc) — argumentopinion

Neal Katyal — City of Philadelphia v. Attorney Generalvideoaudio [he starts at 26:15]

Seth Waxman (vs. James Martin) — Avaya v. Telecom Labsargumentopinion


Third Circuit Bar Association presidents

Chip Becker — L.R. vs. School Distargument [he starts at 16:10] — opinion

Lisa Freeland — In re: Hoffnerargumentopinion

Peter Goldberger — US v. Hirdvideo [he starts at 9:50, 37:50, and 43:00] — audio

James Martin — Grider v. Keystone Healthargumentopinion

Nancy Winkelman — Huertero v. USargumentopinion

Andrew Simpson — Sala v. Hawkargumentopinion


Other Third Circuit advocates

Howard Bashman  — A.S. v. Smithkline Beechamargumentopinion

Ellen Brotman — US v. Richardsonargumentopinion

Ilana Eisenstein — US v. Cooperargument [she starts at 13:13] — opinion

Jonathan Feinberg — US v. Bennettargumentopinion

David Fine vs. Robert Zauzmer — US v. Rosarioargument

Arianna Freeman — Brown v. Superintendentargumentopinion

Lisa Mathewson — US v. HIrdvideo [she starts at 19:15] — audio

Bruce Merenstein — US v. Fattahvideo [he starts at 19:00] — audio

Katherine Romano — Katz & Assocs. v. Concepts in Healthargument

Matthew Stiegler (me) — Reeves v. Fayette SCI argument opinion


Other advocates from outside the circuit

Michael Carvin — Ehrheart v. Verizon Wirelessaudio [he starts at 11:35] — opinion

John Elwood — USA v. EME Homer argument [he starts at 28:25] — opinion

Roy Englert — In re: Tribune Mediaargumentopinion

Miguel Estrada — Crystallex Int’l v. Venezuelavideoaudioopinion

David Frederick — In re: Zoloftargumentopinion

Deepak Gupta — In re: NFL Players Concussion Injury Litig.argument [he starts at 21:25]– opinion

Alan Gura — Binderup v. AGargument [he starts at 12:50] — opinion**

Orin Kerr — US v. Auernheimerargumentopinion

Christopher Landau — In re: Jevic Holdingargument [starts at 14:20] — opinion

Patricia Millett — In re Nortel Networksargument [starts at 28:10]– opinion

Andrew Pincus — DE Coalition v. Strineargumentopinion

Carter Phillips — Gonzalez v. Owens Corningargument [he starts at 20:10] — opinion

Tejinder Singh vs. Kannon Shanmugam  — Sikkelee v. Precision Airmotiveargumentopinion

** The links are for the panel argument and the en banc opinion. Here is the en banc argument.

Cert denied in eye-drops case

The Supreme Court this morning denied certiorari in Alcon Laboratories v. Cottrell, a Third Circuit case I’ve mentioned here:

  • Third Circuit opinion summary — link
  • blog post about the rehearing petition —  link

[Update: I’ve edited this post to remove a mistaken link to a post about a different case.]

Following up on the Third Circuit’s adoption of the new law-clerk-hiring plan

On Thursday, the Third Circuit announced that it is adopting for at least one year the new hiring plan for law clerks, as I posted here. Here are some more details:

  • The new hiring plan makes two main improvements: (1) hiring would start after law students’ second year, not their first, and (2) it bars exploding offers.
  • The new plan was first announced in February by Chief Judges Katzmann of the Second Circuit, Wood of the Seventh Circuit, Thomas of the Ninth Circuit, and Garland of the D.C. Circuit. It was issued after over 100 law school deans sent the judiciary a letter last year urging reform of clerk-hiring practices.
  • So by adopting the plan, the Third Circuit joins its neighbors to the north (Second) and south (D.C.).
  • I learned that the Third Circuit adopted the plan after receiving a second letter from the deans of law schools within the Third Circuit urging them to do so.
  • The court’s announcement was issued the day after its en banc sitting, which suggests the judges met to discuss and vote on it in person.
  • Law professor Aaron Nielson pointed out to me on Twitter that the Third Circuit’s announcement refers to “[p]articipating judges,” which could mean that one or more Third Circuit judges are not participating. He noted that the Ninth Circuit’s announcement used the same phrase while stating that the “great majority” of its judges will follow the new plan. My initial reaction was that I read the Third Circuit’s announcement to mean that all the court’s judges are following the plan for a year, but on reflection I believe Professor Nielson may be right, and if I learn more I will update this post.
  • Also last week, as reported by Marcia Coyle in the National Law Journal, Justice Ginsberg spoke in favor of the law plan, and Justice Kagan said she will take into account judges’ and schools’ compliance with the plan in her own clerk hiring.

Third Circuit adopts the new law-clerk hiring plan

Big clerkship news: the Third Circuit today posted an announcement that it will adhere to the new law clerk hiring plan. The announcement states:

Starting with students who entered law school in 2017, the application and hiring process will not begin until after a law student’s second year.

For students who entered law school in 2017 (graduating class of 2020): Judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers before June 17, 2019.

For students who enter law school in 2018 (graduating class of 2021): Judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers before June 15, 2020.

A judge who makes a clerkship offer will keep it open for at least 48 hours, during which time the applicant will be free to interview with other judges.

This is a one-year pilot plan. Participating judges will reconsider their participation after one year.



Audio of yesterday’s en banc argument, plus four new argument videos

The en banc Third Circuit heard oral argument yesterday morning in Hayes v. Harvey, a significant public-housing-law appeal. My prior posts on Hayes are here and here. Audio of the argument is up already on the court’s website here.

I also just noticed that the Court has posted on its website video of four April arguments. Judges Chagares, Vanaskie, and Fisher heard all four. Two are federal criminal appeals and the redoubtable Bob Zauzmer argued them both for the government (arguing two cases the same day would be my demise). And my fellow Third Circuit Bar Association board member Lisa Rodriguez of Schnader argued Ortiz.

New opinions — one consumer wins a credit-card appeal, another one loses an insurance appeal

These two opinions were issued yesterday, May 16, but I had a big oral argument in the afternoon and was too beat to summarize them.

Krieger v. Bank of America — civil / consumer — reversal — Krause

The Third Circuit ruled in favor of a consumer plaintiff in a credit-card dispute with Bank of America. The opinion’s introduction neatly summarizes matters:

The same day Appellant William Krieger fell victim to a credit card scam and discovered a fraudulent $657 charge on his bill, he protested to his card issuer, Bank of America (BANA), and was told both that the charge would be removed and that, pending “additional information,” BANA considered the matter resolved. And indeed, Krieger’s next bill reflected a $657 credit. But over a month later Krieger opened his mail to some particularly unwelcome additional information: BANA was rebilling him for the charge. He disputed it again, this time in writing, but after BANA replied that nothing would be done, he paid his monthly statement and then filed this action, alleging BANA violated two consumer protection laws: the Fair Credit Billing Act, which requires a creditor to take certain steps to correct billing errors, and the unauthorized-use provision of the Truth in Lending Act, which limits a credit cardholder’s liability for the unauthorized use of a credit card to $50. The District Court granted BANA’s motion to dismiss the operative complaint after determining Krieger had failed to state a claim as to either count. Because we conclude the District Court’s decision was contrary to the text, regulatory framework, and policies of both statutes, we will reverse.

Joining Krause were Ambro and Conti WDPA by designation. The district judge was MDPA Judge Brann. Arguing counsel were Brett Freeman of the Sabatini Law Firm for the consumer and Michael Falk of Reed Smith for the bank.

American Orthopedic & Sports Med. v. Independent Blue Cross Blue Shield — ERISA — affirmance — Krause

The Third Circuit rejected an insured’s argument that ERISA bars insurance companies from enforcing anti-assignment clauses (clauses in health insurance plans that prevent the insured from assigning their claim to a third party including the healthcare provider). The court disagreed with two other circuits that viewed the issue as controlled by statutory language, but in the end agreed with all circuits to reach the issue that the clauses were enforceable. The court left open the possibility that a would-be assignee could instead proceed in a power-of-attorney capacity, but held that here that argument was waived.

Joining Krause were Ambro and Rendell. Arguing counsel were Samuel Saltman of Callagy Law for the appellant, and Susan Danielski of Dugan Brinkmann and Michael Holzapfel of Becker for the insurers. 

New opinion — en banc Third Circuit rejects FDCPA discovery rule

Rotkiske v. Klemm — civil / consumer — affirmance — Hardiman

In a rare unanimous en banc opinion, the Third Circuit today split with two other circuits and held that the Fair Debt Collection Practices Act’s statute of limitations begins to run when the violation occurs, not when it is discovered. The opinion is crisp and clear: “In our view, the Act says what it means and means what it says.”

The opinion was unanimous with the entire active court plus Judge Fisher. Arguing counsel were Matthew Weisberg of Weisberg Law and Adina Rosenbaum of Public Citizen for the appellant and Carl Zapffe of Kentucky for the appellees. Video of the argument is here.

New opinion — Third Circuit rejects limit on attorney-fee recovery in IDEA suit

Rena C. v. Colonial School Dist. — civil / disability — reversal — Fisher

(I’m posting this later than usual because I had a moot today for my upcoming Third Circuit argument.)

The Third Circuit today ruled in favor of a plaintiff who prevailed in a suit under the Individuals with Disabilities Education Act in a dispute over attorney’s fees. The opinion’s introduction explains the context:

Under the IDEA, when parents and school districts dispute a child’s educational placement, a parent may file an administrative due process complaint that can lead to an administrative hearing. At least ten days before the dispute reaches a hearing, the school district can extend a settlement offer to the parent, referred to herein as a “ten-day offer.” If the matter proceeds to a hearing and the parent is the prevailing party, this ten-day offer becomes significant. A parent who is the prevailing party may be awarded reasonable attorney’s fees under the IDEA, but the ten-day offer allows a school district to limit its exposure to such fees by limiting a parent’s eligibility for attorney’s fees to only those fees accrued before the time of the ten-day offer. If a parent rejects the ten-day offer, the parent may only receive attorney’s fees for work done after the time of the offer if (1) the hearing leads to more favorable relief than the offer included, or (2) the parent was substantially justified in rejecting the offer.

Joining Fisher were Nygaard and Greenaway; Greenaway also concurred to express his hope that IDEA litigants will negotiate in good faith instead of simply rejecting “terse or inexact offers.” Arguing counsel were David Berney for the trial plaintiff and Karl Romberger of Sweet Stevens for the school district.

Supreme Court grants certiorari to review Third Circuit maritime asbestos-liability ruling

The Supreme Court today granted certiorari in Air & Liquid Systems v. Devries, No. 17-1104. This case comes from the Third Circuit, where it was captioned In re: Asbestos Prods. Liability Litig (No. VI). The Third Circuit opinion is here, my summary is here. The gist is whether maritime law recognizes a “bare metal” defense against liability from asbestos injuries for a manufacturer who delivered a product before its asbestos was added.

New opinion — Third Circuit affirms dismissal of in rem maritime suit

Liberty Woods Int’l v. The Motor Vessel Ocean Quartz — maritime — affirmance — Roth

The Third Circuit today upheld the dismissal of a shipping customer’s suit against a cargo ship, in rem, for damage to its cargo. The introduction explains:

Liability for the damage is governed by the carrier’s bill of lading, which contains a forum selection clause requiring suit to be brought in South Korea. LWI instead sought to bring an in rem suit against the Vessel in the District of New Jersey, arguing that the foreign forum selection clause violates the Carriage of Goods by Sea Act (COGSA) because South Korea does not allow in rem suits.

The court affirmed on the ground that the forum-selection clause doesn’t violate COGSA because in rem suits are not substantive rights under COGSA.

Joining Roth were McKee and Ambro; Ambro also concurred separately to note that in rem suits provide a way to impose liability and that COGSA requires that shippers have a means to collect damages against the value of the ship. Arguing counsel were Craig English of New York for the customer and Richard Whelan of Palmer Biezup for the ship.


New opinion — Third Circuit allows religious employer to intervene in contraception-coverage suit

Commonwealth of Pa. v. President United States — civil — reversal — Hardiman

The Third Circuit today reversed a district court’s order denying intervention by a religious employer into a suit brought by Pennsylvania against the Trump administration challenging its executive orders exempting both religious non-profits and for-profit employers morally opposed to contraception from relevant parts of the Affordable Care Act.

Reversing under abuse-of-discretion standard, the Third Circuit held that the employer, a Pittsburgh retirement home operated by a Catholic non-profit corporation, had a sufficient interest in the case and that, although they sought the same relief as the President of the United States, the Department of Health and Human Services, the Treasury Department, and the Labor Department, their interests were not adequately protected by the existing parties.

In the key passage, the court reasoned:

First, the Little Sisters’ situation is similar to Trbovich, where a statute obligated the Secretary of Labor to uphold the “related[] but not identical” interests in enforcing the rights of union members against their union as well as the “public interest” in assuring free and democratic
union elections. 404 U.S. at 538–39. Zubik likewise tasked the government with serving two related interests that are not identical: accommodating the free exercise rights of religious
objectors while protecting the broader public interest in access to contraceptive methods and services. And like Benjamin, the Zubik compromise must balance the rights of “two groups with quite divergent desires and interests.” 701 F.3d at 958. Finally, as in Kleissler, the government must defend “numerous complex and conflicting interests.” 157 F.3d at 973. The religious exemption IFR applies not only to religious nonprofit corporations like the Little Sisters, but also to closely held and publicly traded for-profit corporations. And the moral exemption IFR protects parties for reasons unrelated to religion. The religious and moral interests of these entities are numerous and varied. Accordingly, there is no guarantee that the government will sufficiently attend to the Little Sisters’ specific interests as it attempts to uphold both IFRs in their entirety. See Kleissler, 157 F.3d at 967 (concluding that the proposed intervenors had carried their burden by showing “a reasonable doubt whether the government agency would adequately represent [their] concerns”).

Since the government’s interest will always be broader than a would-be-intervenor’s, this reasoning seems in tension with the circuit’s precedent presuming that the government is an adequate representative and that a district court’s denial of intervention is reviewed for abuse of discretion only. A petition for rehearing en banc seems inevitable.

Joining Hardiman were Bibas (in what I believe is his first vote in a precedential appeal) and Roth. Arguing counsel were Michael Fischer for Pennsylvania and Lori Windham of the Becket Fund for Religious Liberty for the employer.