Two messy new opinions

Oliver v. Roquet — civil rights / civil commitment — reversal — Krause

This appeal arose after a state psychologist recommended an unfavorable action against a civil detainee in a report that referred critically to the detainee’s pro se litigation and legal assistance for other detainees. The psychologist said the detainee’s legal work could be “counter-therapeutic” for him.

In an interlocutory appeal, the Third Circuit today held that the district court erred in denying the psychologist’s qualified-immunity motion. The court first rejected the detainee’s argument that the psychologist’s assertion of qualified immunity came too late because it was not included in her first motion to dismiss.

The court then held that the detainee’s First Amendment claim failed to adequately allege causation. A state actor’s mere consideration of protected activity normally is enough to plead retaliation in a retaliation case, but more than mere consideration of protected activity is required to state a valid retaliation claim against a mental health professional at a state institution for the civilly committed: “There must be particular facts alleged that allow the court to reasonably infer it is the protected activity itself, and not simply medically relevant behavior associated with that activity, that formed the basis of the defendant’s adverse action.”

Finally, the court alternatively held that the detainee’s asserted right was not clearly established.

Joining Krause were Ambro and Smith. Arguing counsel were David DaCosta of the NJ Attorney General’s office for the psychologist and Stephen Fogdall of Schnader as amicus counsel for the detainee. The court thanked Fogdall “for accepting this matter pro bono and for the quality of his briefing and argument in this case.”

 

Fahie v. People — criminal — affirmance — Jordan

The Third Circuit today affirmed a Virgin Islands criminal conviction. The court held that it was not an abuse of discretion for the court to issue an aiding-and-abetting instruction even though the co-defendant had pled to being an accessory after the fact, rejecting the defendant’s argument that the plea meant there was no one for him to abet.

The case was unusual in two ways. First, the Third Circuit granted certiorari to review the Virgin Islands ruling after Congress revoked the court’s cert. jurisdiction. But the court applied its prior precedent to hold that the revocation did not apply to cases that had commenced in the Virgin Islands courts before the revocation, precedent the Virgin Islands bar association decried in an amicus brief as “absurd.” Second, the court dismissed as improvidently granted a second issue on which the court had granted certiorari, concluding that the issue turned in territorial rather than federal law. A bit of a mess.

Joining Jordan were Chagares and Hardiman. Arguing counsel were David Cattie for the petitioner, Su-Layne Walker of the VI Attorney General’s office for the people, and Edward Barry for the bar association amicus.

Why is the Third Circuit’s courthouse named for James Byrne?

Okay, my fellow Third Circuit enthusiasts, it’s quiz time.

Question: The courthouse where the Third Circuit sits is named the James A. Byrne United States Courthouse. So, who was James A. Byrne?

  1. the Third Circuit’s first African American judge
  2. an FDR-era U.S. Senator, Secretary of State, and Supreme Court Associate Justice
  3. the Third Circuit’s first Chief Judge
  4. the only Third Circuit judge (besides Samuel Alito) elevated to the Supreme Court

Answer: None of the above.

James Aloysius Byrne was a Congressman from Philadelphia from 1953 to 1973. Before that, he was a mortician. He lost in the 1972 Democratic primary to Bill Green, and he died in 1980. His Wikipedia page is here, his Congressional bio is here.

The wrong answers? #1 is William Hastie. #2 is James F. Byrnes. #3 is John Biggs Jr. #4 doesn’t exist — Alito is the only one.

So why was the Third Circuit’s courthouse named after Byrne? Beats me.

Byrne’s biographical pages just list the positions he held, they doesn’t list a single accomplishment. He’s buried in suburban Philly, and Allen Dulles once thanked him for writing a letter of recommendation for a woman who wanted to work for the CIA. Otherwise, he’s an internet cipher, undistinguished and forgotten.

As best I can tell, the reason why the courthouse is named after Byrne was this: Byrne’s two decades in Congress ended around the time the courthouse was being built. He left Congress in 1973, the building was completed in 1975.

Looking at the names of other circuits’ courthouses, I think it’s fair to say that none are named after a less distinguished figure than ours.

Four circuits’ courthouses are named after Supreme Court Justices: the Second (Thurgood Marshall), Fourth (Lewis Powell), Sixth (Potter Stewart), and Tenth (Byron White). Marshall and Stewart served on their circuit courts, while Powell and White both were strongly identified with their home states.

Four circuits’ courthouses are named after legendary circuit judges: the Fifth (John Minor Wisdom), Ninth (James Browning), Eleventh (Elbert Parr Tuttle), and DC (E. Barrett Prettyman).

The other three are, like the Third Circuit’s, named after members of Congress. The Seventh Circuit’s courthouse is named for Senator Everett Dirksen, a Senate minority leader credited with helping to write the Civil Rights Acts of 1964 and 1968. The Eighth Circuit building is named after longtime Senator and abortive Vice Presidential candidate Thomas Eagleton. The closest analog to the Third Circuit is the First Circuit’s courthouse named for Congressman Joe Moakley. Moakley was first elected by defeating a virulently anti-busing incumbent, and after a quarter-century in Congress rose to serve as chair of the powerful Rules Committee.

Are there any better options to name the Third Circuit’s courthouse after than Byrne? Gracious yes. Here’s my back-of-the-napkin list:

I’m probably forgetting other good options. My vote’s for Becker.

As luck would have it, there’s lots of precedent for Congress renaming federal courthouses.

At least four federal circuit courthouses were renamed, all four for judges. The Ninth Circuit’s courthouse was renamed for Browning in 2005, the Second Circuit’s was renamed for Marshall in 2001, the DC Circuit’s was renamed for Prettyman in 1997, and the Fifth Circuit’s was renamed for Wisdom in 1994.

There also is precedent for changing to a courthouse’s name from a politician’s to a judge’s. The federal courthouse in Charleston, SC, was renamed in 2015 for pioneering district judge and civil rights attorney Waties Waring. The building formerly was named for Senator Ernest Hollings.

And there are countless examples of federal courthouse renamings. A few recent ones:

  • Last year the federal courthouse in Shreveport, LA was renamed for a former federal district judge.
  • Also last year the federal courthouse in Greenville, NC, was renamed for a bankruptcy judge.
  • Also last year the federal courthouse in Gainesville, GA, was renamed for a federal district judge.
  • In 2013 the federal courthouse in Sherman, TX was renamed for a federal district judge.
  • And, of course, here in the Third Circuit the federal courthouse in Pittsburgh was renamed in 2015 for Third Circuit Judge Joseph Weis.

I haven’t heard discussed the idea of changing the name of the Third Circuit’s courthouse. But I think it’s worth considering.

Sorry, Mr. Byrne.

UPDATE: Reader Greg emailed me this interesting comment (there seems to be a glitch preventing comments from posting):

As best I can tell you’re right–it appears the courthouse was named after Byrne because of his congressional service and because he was retiring around that time. His upcoming retirement prompted lavish praise in the Congressional Record in 1972, see https://www.gpo.gov/fdsys/pkg/GPO-CRECB-1972-pt28/pdf/GPO-CRECB-1972-pt28-3-1.pdf#page=59. The bill naming the courthouse after him followed shortly after – https://www.gpo.gov/fdsys/pkg/STATUTE-86/pdf/STATUTE-86-Pg1019.pdf#page=7 – see Sec. 38.
 
A related fun tidbit: then-Senators Specter and Santorum introduced a bill in 2001 to name the courthouse’s lobby the “Edward R. Becker Lobby.” See https://www.congress.gov/bill/107th-congress/senate-bill/1790/actions. That bill was referred to the Senate Committee on Environment and Public Works, though I couldn’t find what happened to it after that–but google turns up numerous references to the lobby being named after Judge Becker.

 

 

 

New opinions — two civil affirmances

Jones v. Does — civil / arbitration — affirmance — Fuentes

Today the Third Circuit ruled against an employer who argued that an overtime-pay suit against it should have submitted to arbitration. The employees sued the employer under the Fair Labor Standards Act. The employer moved to stay or dismiss pending arbitration, arguing that disputes over interpretation of the collective-bargaining agreement had to be arbitrated, but the district court disagreed and a divided Third Circuit panel affirmed.

Joiing Fuentes was Chagares; Ambro dissented. Arguing counsel were Stuart Weinberger of Goldberg & Weinberger for the employer and Matthew Miller of Swartz Swidler for the employees.

 

Petras v. Simparel — civil / qui tam — affirmance — McKee

The Third Circuit today affirmed dismissal of a suit under the False Claims Act. Addressing an issue of first impression, the court held that the Small Business Administration was not acting as the government for FCA purposes when it was merely a receiver for a private company. The court also relied on legislative history to rule that certain contingent obligations fell outside the FCA’s scope.

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

 

New opinion — error to dismiss inmate’s claim that prison retaliated against him for doing his job as legal assistant

Wisniewski v. Fisher — prisoner civil rights — reversal — Vanaskie

The Third Circuit today reversed a district court’s dismissal of an inmate’s civil-rights suit.

The prisoner, Thomas Wisniewski, worked as an inmate legal aide in SCI Smithfield’s law library. In the course of helping a mentally ill inmate prepare a grievance — doing his job — Wisniewski obtained a similar grievance from another inmate to use as a model. The prison treated this as circulating a petition, which is insane. (For starters, the prison’s own guidelines defined petitions as containing 3 or more signatures.) So the prison put poor Wisniewski in restricted housing for almost 90 days for misconduct, and Wisniewski alleged that they retaliated in several other ways including firing him from his law-library job. The district court dismissed, ruling that Wisniewski failed to allege a First Amendment retaliation claim and his other claims were time-barred.

Today the Third Circuit crisply reversed, holding that the prisoner’s allegations stated a valid First Amendment claim and that the district court erred in failing to consider whether tolling during administrative exhaustion rendered his other claims timely.

Joining Vanaskie were Ambro and Scirica. Arguing counsel were Hardiman clerk (famously so) Richard Heppner Jr. of Reed Smith for the prisoner and Debra Rand of the PA DOC for the prison defendants. The opinion expressed sincere appreciation to Heppner and his Reed Smith co-counsel Patrick Yingling, a Fisher clerk, for their “excellent representation,” noting they “performed admirably” and were “of immense assistance to the Court.”

Scotus review of Third Circuit case sought to resolve circuit split over who can challenge rental-car searches

A Supreme Court powerhouse filed a petition for certiorari last week challenging a Third Circuit ruling in a vehicle-search case.

Terrence Byrd was stopped by Pennsylvania police while driving a rental car. He was alone in the car, and he was not listed on the rental agreement. Police searched his car, found drugs and body armor in the trunk, and arrested him. Byrd argued that the search violated the Fourth Amendment, but the district court ruled that Byrd had no reasonable expectation of privacy because he was the sole occupant of the car and wasn’t listed on the car-rental agreement.

Following prior circuit precedent that such persons have no expectation of privacy and thus no standing to challenge the vehicle search, the Third Circuit panel affirmed in a non-precedential opinion authored by Eighth Circuit Senior Judge Michael Melloy sitting by designation. The opinion noted that the circuits were split on the issue.

Two days ago, Byrd filed a petition urging the Supreme Court to resolve the circuit split. Counsel of record on the petition is Joshua Rosenkranz of Orrick Herrington, founder of the Brennan Center for Justice and now a prominent Supreme Court litigator. Also on the petition was Frederick Ulrich of the MDPA federal defender, who represented Byrd in the Third Circuit.

The petition took a clever approach to illustrating the circuit split:

In February 2014, the Meadowlands, in East Rutherford, New Jersey, was host to Super Bowl 48. Suppose the local police, knowing that thousands of
out-of-towners would be drinking and driving that weekend, decided to set up an elaborate network of sobriety checkpoints around town. Under Third Circuit law, the police would have been allowed to conduct full-vehicular searches of every rental car driven by an unlisted driver that they stopped that weekend, regardless of whether they had a warrant or any suspicion of a crime. The same is true in the Fourth, Fifth, and Tenth Circuits and two state supreme courts.

Over the ensuing two years, Super Bowls 49 and 50 took place in Glendale, Arizona and San Francisco, California, respectively. There, football fans could rest easy knowing they retained their Fourth Amendment rights against warrantless and suspicionless searches. For unlike the Third Circuit, the Ninth Circuit (like the Eighth and four state courts of last resort) holds that an unlisted driver has a reasonable expectation of privacy in a rental car as long as he has the renter’s permission to drive the car.

Then came Super Bowl 51, held in Houston, Texas. There, the governing Fourth Amendment doctrine is woefully inconsistent, for in Texas, as in four other states, the state high court and applicable federal circuit court have reached opposite conclusions on the issue of whether an unlisted driver’s expectation of privacy in a rental car is reasonable. Thus, football fans could have challenged warrantless and suspicionless searches of their vehicles there, if they were prosecuted in state court, but not if they were prosecuted in federal court.

Such is the elusive nature of the Fourth Amendment’s protection against unreasonable searches under the law today.

Stay tuned.

 

 

 

Right-to-film-police appeal is among new argument videos

The Third Circuit has posted video recordings of three recent oral arguments, and one of them is a case that has gotten a lot of attention. All three cases were argued on May 9 before Judges Ambro, Restrepo, and Nygaard.

The high-profile case is Fields v. City of Philadelphia, the PA ACLU’s appeal from a district court ruling that civilians have no First Amendment right to film on-duty police absent expressive conduct. The case has gotten extensive media coverage, such as this 2016 story.

The other two new videos:

  • Bennett v. Superintendent, a habeas corpus appeal argued by the Drexel Law Appellate Litigation Clinic and
  • Mendoza-Ordonez v. AG, an immigration appeal involving asylum.

Arguing counsel and case summaries for all three pages are here, just click the arrow to the left of each case number for the details.

Trump reportedly close to nominating David Porter to Third Circuit [updated]

Jennifer Bendery reported yesterday on Huffington Post that a “source familiar with the nomination process” says President Donald Trump is close to nominating David Porter to the Third Circuit. (I first saw the report on How Appealing.) Porter is a Buchanan Ingersoll partner in Pittsburgh who clerked for Chief Judge Brooks Smith. Bendery writes:

Porter’s nomination to the Third Circuit is expected to be announced in the next couple of weeks, per this source, and is being pushed by Sen. Pat Toomey (R-Pa.), one of Porter’s home-state senators.

The same source reportedly says that PA’s other senator, Democrat Bob Casey, has serious concerns about Porter’s nomination. Bendery says Casey has “warned the White House he’s prepared to withhold Porter’s blue slip if Trump nominates him.”

The article (keep in mind Huffington Post is liberal-leaning) contains some background on Porter:

President Barack Obama nearly nominated Porter, a Republican corporate attorney, to a district court in 2014 as part of a bipartisan package deal that also included Democratic judicial nominees. But progressive groups torpedoed that agreement by launching a campaign highlighting Porter’s ties to groups opposed to abortion rights, LGBTQ rights and gun control.

* * *

Among other things, Porter led the Federalist Society’s Pittsburgh Lawyers Chapter, helped found a coalition that tried to stop Supreme Court Justice Sonia Sotomayor’s confirmation, and has been a contributor and trustee at the conservative Center for Vision and Values.

I’ll have more (a lot more, knowing me) to say about Porter if he’s nominated, but for now I’ll just repeat what I said a few weeks back: there are two Pennsylvania seats, one a holdover that should be filled by an older moderate and one a new opening that Republicans should be free to fill with the qualified nominee of their choosing, and at least two of the three circuit openings should be filled by a woman.

UPDATE: The Huffington Post story doesn’t give Porter’s age. His law firm profile indicates he graduated law school in 1992 and college in 1988, suggesting he’s around 51.

New opinions — Third Circuit orders habeas relief due to ineffective assistance of counsel

Bey v. Superintendent — habeas corpus — reversal — McKee

The Third Circuit today ruled in a prisoner’s favor in a habeas corpus appeal, holding that the prisoner’s trial lawyer was ineffective for failing to object to a faulty jury instruction and that, while this claim was procedurally defaulted, the default was excused under Martinez v. Ryan because his state post-conviction counsel (known as PCRA counsel in Pennsylvania) was ineffective for not raising the issue.

Interestingly, the issue involved eyewitness identifications, the subject of the circuit task force Judge McKee co-chairs. The jury was instructed, without objection, that an eyewitness i.d. “may not be received with caution.”

Joining McKee were Restrepo and Hornak WDPA by designation. Arguing counsel were Michael Wiseman of Swarthmore PA (my former boss, and a force to be reckoned with in criminal and habeas cases) for the prisoner and John Goldsborough of the Philadelphia DA’s office for the commonwealth.

 

New opinion — IRS error doesn’t excuse taxpayer’s late filing

Rubel v. CIR — tax — affirmance — Shwartz

Suppose the IRS denies your petition and tells you in a letter that your appeal is due April 19, so you appeal on April 19. But actually the statute says your appeal was due a week or two earlier, so the IRS argues that your appeal ought be tossed as untimely.

Fair? Maybe not, but today the Third Circuit held that the appeal deadline was jurisdictional so fairness mattered not. In a footnote, the court primly “remind[ed] the IRS to exercise care when drafting correspondence to a taxpayer.”

Joining Shwartz were Greenaway and Simandle DNJ by designation. Arguing counsel were Carlton Smith of New York for the taxpayer and Richard Caldarone for the government.

New opinions — an immigration reversal and 1L property-class flashbacks

Flores v. AG — immigration — reversal — Fuentes

Our government decided to remove a Guatemalan woman who had pled guilty to being an accessory after the fact to murder — she saw her jealous ex-boyfriend kill her current boyfriend, but did not tell police because because the murderer threatened to kill her and her 3-year daughter if she did. She contested her removal because “her father, who had physically and sexually abused her as a child, wanted to kill her” and “she had been raped by members of a local gang immediately following her previous removal to Guatemala.” The BIA ruled against her on the grounds that her conviction was related to obstruction of justice and thus so serious that she was ineligible for withholding of removal. The Third Circuit today reversed in a thorough and compelling opinion.

Joining Fuentes was Ambro; Shwartz dissented. Arguing counsel were Marcia Kasdan for the petitioner and Andrew Insenga for the government.

US v. Cardaci — property / tax — partial affirmance — Jordan

I could be mistaken, but I’m pretty sure I’ve never seen this sentence in a court opinion before: “To give one admittedly extreme example, it stands to reason that a healthy twenty-six-year-old wife would have a greater interest in a life estate than would her ailing eighty-nine-year old husband.” Will today’s opinion containing that sentence become the leading case for this proposition? I’m eager to find out.

After a husband’s business nosedived and he failed to pay around $80,000 in taxes, the government sued him for back taxes, seeking a forced sale of the home where he lived with his wife. The district court decided the husband’s share of the jointly owned house wasn’t worth enough and instead ordered the husband to start paying the government rent instead. Today, the Third Circuit held that the district court did have the power to order a forced sale of a jointly owned house in New Jersey, but it remanded for reconsideration of the remedy.

Joining Jordan were Greenaway and Rendell. Arguing counsel were Julie Avetta (subject of this 2009 Washington Post “OnLove” essay, and also an accomplished classical singer) for the government and Anthony Monzo of Monzo Catanese for the homeowners.

New opinion — Third Circuit affirms non-dischargeability of tax liabilities

In re: Giacchi — bankruptcy — affirmance — Roth

Today the Third Circuit rejected a debtor’s argument that certain tax liabilities were dischargeable in bankruptcy. The opening paragraph of the opinion:

In this appeal, we must determine whether Internal Revenue Service Forms 1040, filed after the IRS has made an assessment of the taxpayer’s liability, constitute “returns” for purposes of determining the dischargeability in bankruptcy of tax debts under 11 U.S.C. § 523(a)(1)(B). Thomas Giacchi did not file tax returns on time for the years 2000, 2001, or 2002. Instead, he filed the forms years after they were due and after the Internal Revenue Service had assessed a liability against him. In 2010 and 2012, Giacchi filed for bankruptcy, and in 2013 he sought to discharge his tax liability for the years 2000, 2001, and 2002. The District Court affirmed the Bankruptcy Court’s order denying the discharge. We will affirm the District Court’s ruling.

Joining Roth were Fisher and Greenaway. The case was decided without oral argument.

New opinion — Third Circuit rejects appeal by pretrial detainee held in administrative segregation

Steele v. Warden — prisoner civil rights — affirmance — Restrepo

A pre-trial detainee was put into administrative segregation after he was accused of threatening other detainees into using a particular bail-bond provider, and being in segregation delayed the detainee from posting his own bail. The detainee sued, alleging violation of his substantive and procedural due process rights. The district court granted summary judgment to the defendants, and today the Third Circuit affirmed. Most notably, the court held that pretrial detainees have a substantive-due-process liberty interest in exercising his bail option once bail has been set, but ruled that the detainee’s right wasn’t violated here because he was still able to access mail and contact his lawyer.

The court appointed counsel to represent the detainee on appeal and issued the opinion close to a year after oral argument. The opinion is a model of lucidity.

Joining Restrepo were Ambro and Nygaard. Arguing for the detainee was Penn law student William Stewart, while Lori Dvorak of Dvorak & Associates argued for the appellees. The court thanked Stewart and his supervising attorneys from Dechert for handling the case pro bono and for their “excellent advocacy.”

“Oral Argument in Federal Court Becoming a Lost Art”

P.J. D’Annunzio had this fine article in the Legal Intelligencer Monday — its headline is the title of this post — looking at the decline in the number federal circuit and district court oral arguments.

Of particular interest are Chief Judge Brooks Smith’s views:

The expense of oral argument is something that is often overlooked in the conversation over its disappearance, Smith said. Travel costs can be prohibitive for clients who need to send their lawyers cross-country to appear in a circuit court. This leads to clients settling with having their arguments made in briefs.

* * *

For the most part, Smith said, lawyers do stick pretty close to their briefs when arguing before the court. Be that as it may, he noted that there is still use for the practice.

“The phenomenon of oral argument is something I still marvel at as something that is able to refine a point orally that might not come across on the printed page,” Smith said.

It also provides judges with the opportunity to ask for greater clarification of a point that may have been unclear in a brief. Additionally, Smith said oral argument can be used by a judge on a panel to persuade his or her colleagues on a certain point.

“That judge may be seeking to make a point with one or both of the other judges on the panel,” Smith said.

 

Paul Matey is reportedly a leading contender for Third Circuit seat

David Lat reported Monday on Above the Law (link here) that a “leading contender” for the Third Circuit’s open New Jersey seat is Paul Matey, a hospital executive and former deputy chief counsel to Governor Chris Christie. Matey clerked in 2002-03 for Third Circuit Judge Robert Cowen.

Lat doesn’t give Matey’s age, but his Linkedin profile says he started college in 1989, which likely puts him around 46 years old.

Matey was an AUSA in New Jersey from September 2005 to December 2009, overlapping with Lat who left that office in early 2006. (Lat’s article notes Matey’s AUSA service but not the overlap or any relationship between them.) So when Lat reports that Matey is a leading contender and that his Christie connections “do[]n’t seem to have been held against Matey,” I wonder if Lat’s source is Matey himself.

Here is a news report on Matey’s departure from Christie’s staff, and here is his Republican National Lawyers Assoc. member profile (which lists two papers Matey co-authored with “N. Gorsuch”).

Matey is the only Third Circuit contender identified in the article.

Last month I posted that the New Jersey seat and one of the PA seats should be filled by well-qualified moderate Republicans in their 50s. Matey is a Republican but he isn’t in his 50’s. We’ll find out more if he’s nominated.

Two remarkable starts to oral argument

Every once in a while, an oral argument starts off better than the lawyer could have imagined. Here’s how Howard Bashman‘s Third Circuit argument began last Thursday:

Bashman:  Good morning your honors. May it please the Court. My name is Howard Bashman and I represent the plaintiffs-appellants, Kenneth and Rose Mann, as parents and guardians of Sheldon Mann. With the Court’s permission I’d like to reserve three minutes for rebuttal.

Judge McKee: Sure… This is a real honor. You’re well known to this Court. I don’t think you’ve ever argued before a panel that I’ve been on before. So this is a delight. Not to say that your case has merit or it doesn’t have merit, but it’s nice to see you arguing before a panel that I’m on. Go ahead.

On the other hand — and this is probably less rare, sadly — sometimes an argument starts off worse than the lawyer probably hoped. Take this opening by John Eastman arguing another case the same morning:

Eastman: Good morning your honor.

Judges: Good morning.

Eastman: My name is John Eastman, I’m representing the American Civil Rights Union, the appellant in this case. I want to start off by acknowledging that the National Voter [pause] I’m sorry, go ahead.

Judge Rendell: No, go ahead.

Eastman: [Pause] You’re asking how the slip had, uh, my co-counsel but we had filed the oral argument that I would be arguing.

Judge Rendell: Okay.

Judge McKee: Okay. And you are Mr. Eastman?

Eastman: I am Mr. Eastman, yes. I want to start by acknowledging that the National Voter Registration Act is rather confusing on a whole lotta levels. And …

Judge McKee: I’m not sure it’s all THAT confusing …

Eastman: [raising voice to talk over judge] … well, its its intricate its…

Judge McKee: [continuing] … unless you’re trying to read something into it that’s not there.

Ouch.

Lawyers never know how an argument will go. Sometimes the surprise is a happy one — sometimes not.

Three big new opinions by Judge Hardiman

In re: Trustees of Conneaut Lake Park — civil — reversal — Hardiman

Pennsylvania law bars insurance companies from paying out fire insurance to a “named insured” if the owner of the property owes back taxes on it. The main purpose of this law, the Third Circuit noted today, is to keep property owners from profiting from arson.

This appeal arose from a fire at a beach club owned by one corporation and operated by another. The operator insured the club against fire damage, there was a fire, and the operator submitted a claim. It emerged that the owner owed taxes on the property; the non-payment happened long before the operator ever entered the picture. But the upshot was that the vast majority of the operator’s insurance payout — hundreds of thousands of dollars — went to various government bodies to pay off the owner’s back taxes, not to cover the fire losses of the operator who paid the policy. Not surprisingly, the operator sued. (The suit was transferred to bankruptcy court when the owner filed for bankruptcy.)

The district court ruled that the operator was entitled to the insurance payout because the PA statute was ambiguous and the legislative intent was to apply it only to insureds who were themselves the tax-delinquent property owners. Today, the Third Circuit reversed, holding that the plain language of the statute required it to be applied to any named insured and rejecting the operator’s argument that the outcome violated the takings clause. The court left the door open for the operator to try to recover money from the owner in the bankruptcy proceedings.

Now, I’m no insurance expert, but I suspect this holding could create a giant mess for Pennsylvania. Does the Third Circuit’s reading of PA law mean that now every would-be tenant in the state needs to research and then monitor their property owner’s property tax payments or face catastrophic loss from denial of fire-insurance proceeds they bought and paid for in perfect good faith? Is that realistic? How many PA tenants don’t even know the identity of their property owner? Do PA tenants need to insist that future property leases require the owners to be and stay current on property taxes as a lease condition? What about current leases? Unless I’m mistaken, the consequences of today’s paean to plain meaning could be broad and profoundly disruptive.

The opinion does not address these concerns, but it defends its holding with a policy argument of its own, warning that the insurer’s “interpretation could incentivize an end run around Section 638 by permitting unscrupulous owners to use the corporate form to collect insurance proceeds without satisfying their delinquent taxes.” Fair point. But, in my view, the problem the court avoids is nothing compared to the problems it creates. If the operator seeks en banc rehearing, I think it deserves a serious look.

Joining Hardiman were Fisher and Greenaway. Arguing counsel were John Mizner for the operator-insured and Arthur Martinucci of Quinn Buseck for the appellants.

 

Cazun v. AG — immigration — affirmance — Rendell

The Third Circuit today affirmed the denial of an asylum applicant’s appeal, upholding the government’s rule that aliens subject to reinstated removal orders are ineligible to apply for asylum. Although the panel was unanimous on the outcome, it divided along ideological lines on the rationale. The majority found the statute ambiguous and applied Chevron deference to the agency’s interpretation, but the concurrence in the judgment found the statute unambiguous and thus that Chevron was inapplicable.

Joining Rendell was McKee; Hardiman concurred in the judgment. Arguing counsel were Keren Zwick of the National Immigrant Justice Center for the asylum applicant and Carmel Morgan for the government.

 

US ex rel. Gerasimos Petratos v. Genentech — civil / qui tam — affirmance — Hardiman

The Third Circuit issued a significant False Claims Act ruling yesterday, affirming on alternative grounds the district court’s dismissal of a pharmaceutical qui tam action.

The appeal arose from a drug company’s marketing of its “multi-billion dollar cancer drug” Avastin; the company’s head healthcare data analyst alleged that the company concealed key information about the drug’s side effects, which resulted in doctors prescribing the drug more often and the government paying out more Medicare claims. The analyst then sued under the False Claims Act.

The district court dismissed the suit on falsity grounds based on its view that the analyst had to prove that how the drug was used had been rejected by the FDA, not by individual doctors. The Third Circuit disagreed, holding that the district court had conflated two different statutory standards. But the Third Circuit affirmed on alternative grounds, holding that the suit failed on materiality grounds under the recent USSC Escobar decision, essentially because the government continued paying out Medicare claims even after the analyst revealed his information. The court concluded, “Petratos’s allegations may be true and his concerns may be well founded—but a False Claims Act suit is not the appropriate way to address them.”

Joining Hardiman were Scirica and Rosenthal SDTX by designation. Arguing counsel were Matthew McCrary of San Francisco for the appellants, Mark Mosier of Covington & Burling for the company, and Weili Shaw for the government.

UPDATE: this post on JDSupra calls Genentech a “gift to qui tam defendants” because it relied on the government’s non-intervention as evidence that the alleged wrong was immaterial. The post asserts that the government chooses to intervene in less than 25 percent of cases, and “No authority has ever suggested … before” that non-intervention suggests immateriality.

New opinions — Third Circuit reverses in an immigration appeal and rejects the government’s jurisdictional challenge in a criminal appeal

Myrie v. AG — immigration — reversal — Ambro

Jarndyce and Jarndyce, I just learned from Wikipedia, is “a fictional court case from the novel Bleak House by Charles Dickens” which “has become a byword for seemingly interminable legal proceedings.”

The Third Circuit invoked that fictional case today in an opinion sending back — for a fifth time — a Panamanian citizen’s challenge to removal. From the start, the man has argued that, if sent back to Panama, gangs there would target him with impunity. This time, the basis for reversal was that the Board of Immigration erroneously reviewed only for clear error his claim that he likely would be tortured with official acquiescence if removed; the Third Circuit held that this was a mixed question of law and fact that the BIA should have instead reviewed de novo. The court also directed the BIA to consider the petitioner’s circumstantial evidence of official acquiescence to torture.

Joining Ambro were Chagares and Fuentes. Arguing counsel were Nathanael Kibler of Tennessee for the petitioner and Erica Miles for the government.

 

US v. Rodriguez — criminal — affirmance — Restrepo

The Third Circuit today affirmed a district’s denial of a motion for a sentencing reduction. The defendant argued that it was substantively unreasonable for the district court to deny his motion for a sentencing reduction based on a change to the Sentencing Guidelines after his sentencing. The most significant aspect of today’s ruling was that the court rejected the government’s argument that it lacked jurisdiction to review the appellate claims like the one raised here, joining three circuits and splitting with one.

Joining Restrepo were Chagares and Roth. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and MDPA AUSA Carlo Marchioli for the government.

New opinion — Third Circuit sides with insurer in asbestos-coverage fight, again rejecting an asserted waiver

General Refractories v. First State Insurance — insurance — reversal — Vanaskie

If you made a list of the most fun things about being a circuit judge, I suspect that “reviewing the district court ruling of a judge who since has become your colleague on the appeals court” would be pretty far from the top.  But it happens, and yesterday it resulted in a unanimous reversal in an asbestos-insurance-coverage appeal.

The dispute arose from a Pennsylvania insurance policy that excluded losses “arising out of asbestos.” The policyholder argued that this only excluded losses related to raw asbestos, not asbestos-containing products. The insurer argued it excluded both.

The district court — Judge Restrepo, before his 2016 elevation to the Third Circuit — sided with the policyholder, ruling that “asbestos” was ambiguous and that the insurer’s asserted exclusion of asbestos-product liability was unenforceable. But yesterday the Third Circuit reversed, holding that, even if “asbestos” meant only raw asbestos, under PA law the words “arising out of” unambiguously encompassed all losses that would not have occurred but for the raw asbestos, thus including asbestos-product losses.

For the second time in less than a week, the court (indeed, the exact same panel) grappled with whether to rest its holding on a position not asserted below, and again it took the more assertive route. The policyholder argued that the insurer waived its but-for causation argument by not raising it below, instead focusing on the meaning of the word asbestos. The Third Circuit ruled that the two arguments were close enough, and alternatively that, even if the causation argument were waived, this was an exceptional circumstance where the public interest would require it to be heard. “Were we to ignore the consistent and explicit meaning assigned to the phrase in Pennsylvania insurance exclusions,” it said, “we would cast doubt on a tradition of interpretation that many parties have relied upon in defining their contractual obligations.”

It’s hard to be sure from the opinion how sound its no-waiver ruling is, but I think the alternative public-interest ruling is wrong. One sentence — “The causation argument is waived so we don’t reach it and nothing in today’s opinion casts doubt on PA’s well-settled rule” — would have protected state law and the waiver rule.

I’d have predicted that the court would be especially unwilling to reverse one of its own this way, but evidently not so.

Joining Vanaskie were Jordan and Krause. Arguing counsel were Theodore Boutrous Jr. of Gibson Dunn for the insurer and Michael Conley of Offit Kurman for the policyholder.

A few highlights from the Third Circuit conference

I’ve just returned from the Third Circuit judicial conference in Lancaster. All 11 active judges were there, along with at least six senior judges and a bevy of district judges from around the circuit. I loved having the chance to see so many of the circuit’s judges and fellow lawyers. Especially everyone I got to meet for the first time, and extra-especially everyone who exclaimed to me, “Wait, are you that CA3blog guy?!”

A couple highlights and random observations:

  • The theme of this year’s conference was technology. Former Third Circuit Judge Chertoff’s keynote address focused on data, privacy, and the doctrinal challenges that lie at their intersection. And fellow Garth clerks Orin Kerr and Harvey Rishikof expanded on the topic in a dazzling presentation the next morning, as did several other sessions.
  • Howard Bashman‘s How Appealing blog got a nice little Supreme Court shout-out. During Justice’s Alito’s lunchtime fireside chat with Chief Judge Smith, Alito was confessing to something or other. Maybe it was his strategy for how to interrupt lawyers at Supreme Court argument? Anyway, Alito joking pleaded for secrecy, and said something like, “Now, I know Howard Bashman is here today, but …”
  • Judge Scirica received the prestigious 2017 American Inns of Court Professionalism Award for the Third Circuit. (The press release is here.) In his acceptance remarks, Scirica spoke movingly of the importance of an independent judiciary and the critical role the practicing bar and the academy have to rise to the judiciary’s defense when its decisional independent is unfairly attacked.
  • While Judge Jordan was presenting the award to Judge Scirica — he described himself as “a devout member of the Tony Scirica fan club”  — Chief Judge Smith playfully leaped over and rubbed Jordan’s bald head. Jordan said something like “I knew that was coming.” Then, during the dessert reception that night, I saw Smith do the same thing to Judge Ambro’s far-from-bald head. This, friends, is a collegial court.
  • The Third Circuit’s low oral argument rate is a sore subject for many lawyers, and during the last session of the conference a lawyer in the audience made a plea for more oral arguments. In response, panelist Judge Shwartz explained that any one judge on the panel can call for argument, so when the court doesn’t grant argument that means all three agreed. She said the briefing was usually excellent and many appeals involved straightforward issues. She also said that she is mindful of how much work preparing for oral argument is for the lawyers.

It was a tremendous event, and I’m looking forward to the next one already.

New opinion — plaintiffs failed to present evidence that Delaware’s massive ongoing failure to release its prisoners on time was “callously misguided”

Wharton v. Danberg — prisoner civil rights — affirmance — Greenaway

The Third Circuit today issued a remarkable opinion in a remarkable case, rejecting Delaware inmates’ argument that the state violated the constitution by failing to release a horrifying proportion of its inmates on time. The heart of the opinion comes near the end:

Viewing the facts in the light most favorable to Appellants, we could conclude that over-detentions are rampant in Delaware and that correctional officials are trying, albeit without great success, to tackle that challenge. So far, this is not deliberate indifference. Appellants need more to rescue their claim. They would need to show that Appellees’ efforts to improve COR so obviously miss the mark that pursuing those efforts manifests disregard for the real problem and thereby amounts to deliberate indifference. Such evidence is absent from the record.

The word “discovery” appears once in the opinion, in passing.

Joining Greenaway were Jordan and Rendell. Arguing counsel were Stephen Hampton of Grady & Hampton for the inmates and Michael McTaggart for the state.

 

New opinion — Third Circuit clarifies test for manufacturer-distributor patent disputes, despite the appellant’s waiver

Covertech Fabricating v. TVM Building Prods. — patent — partial affirmance — Krause

The Third Circuit today affirmed on alternative grounds a district court ruling in favor of the manufacturer in a trademark dispute, but it vacated the lower court’s damages calculation. The opinion’s introduction:

Too often the silence of contracting parties must be
filled by the voice of the courts. Such is the case here, where
we are called upon to resolve a trademark dispute in which no
written contract designates ownership, and, in the process, to
clarify the paradigm through which common law ownership
of an unregistered trademark is determined when the initial
sale of goods bearing the mark is between a manufacturer and
its exclusive distributor. The District Court in this case
awarded ownership to the manufacturer, but did so on the
basis of the first use test, and found the distributor liable for infringement and fraud before rejecting its defense of
acquiescence and awarding damages under the Lanham Act.
Because the District Court failed to recognize and apply the
rebuttable presumption of manufacturer ownership that we
conclude pertains where priority of ownership is not
otherwise established, and because the District Court
incorrectly relied on gross sales unadjusted to reflect sales of
infringing products to calculate damages, we will affirm on
alternative grounds as to ownership, will affirm as to fraud
and acquiescence, and will vacate and remand as to damages.

Beyond the merits holdings, the opinion also features notable appellate procedure rulings. The court held that the first-use test did not apply to manufacturer-distributor trademark disputes, but the losing party below never made that argument in district court nor even in its opening brief on appeal. Instead, the Third Circuit itself directed the parties to brief the issue. The court noted the manufacturer’s waiver, but said “it is necessary and appropriate for us to take up the question of the proper legal test because it is a purely legal question, the resolution of which is in the public interest” (citation omitted).

The court also opted to apply the correct six-factor test on appeal, instead of remanding to give the district court the first crack. It noted that application of the factors was “fully briefed, the parties have confirmed that they would not add to the record on remand, and our application of the test may provide helpful guidance to district courts.”

Joining Krause were Jordan and Vanaskie. Arguing counsel were Brian Shaffer of Morgan Lewis for the appellee distributor and J. Michael Baggett of McCann Garland for the appellant manufacturer.

No Supreme Court review for two prominent Third Circuit cases

Today the Supreme Court denied certiorari in two notable cases from the Third Circuit, Langbord v. Dept. of Treasury (the en banc gold-coins case) and Castro v. DHS (the case about whether federal courts will hear claims raised by petitioners seized on U.S. soil after recent illegal entry).

The denial in Langbord is no big surprise, but the Castro petitioners had amassed powerful support.

The Court also denied the Commonwealth’s petition for cert challenging the Third Circuit’s grant of habeas corpus relief in Brown v. Superintendent.

The Third Circuit has 3 open seats. Who should fill them? [updated]

With Justice Neil Gorsuch confirmed, attention now turns to filling vacancies on the lower federal courts, including the Third Circuit. David Lat posted on the topic on Above the Law on Friday, and his post contained at least two points of particular interest to Third Circuiters:

  • “[T]he nominees are very young — some names I’ve heard mentioned are still in their 30s,” and
  • “I’ve heard through the grapevine that interviews for some (but not all) spots on the Third, Seventh, and Ninth Circuits … are underway.”

The Third Circuit urgently needs judges. Of the 14 seats on the court, three are open:

  • Judge Rendell’s seat (Pennsylvania), open since July 2015. President Obama nominated Rebecca Ross Haywood for this seat but Senator Pat Toomey blocked her.
  • Judge Fuentes’s seat (New Jersey), open since July 2016.
  • Judge Fisher’s seat (Pennsylvania), open since February 2017.

The $64,000 question: Who should fill these three seats?

Home-state senators have the power to block judicial nominations by withholding their blue slips. That means Pennsylvania’s Democratic Senator Robert Casey can block two of the seats, and either of New Jersey’s Democratic Senators (Cory Booker and Bob Menendez) can block the third.

Casey and Menendez are both up for re-election in 2018. Menendez is under indictment for federal corruption charges. Booker has been mentioned as a potential 2020 presidential candidate. So all three likely will be under the microscope.

What will Trump do? What will Casey, Booker, and Menendez do? What should they do?

I’ve given this a lot of thought since my last posts about it (here and here) last November, and I believe the solution is straightforward.

First, all three seats need to be filled. ‘They blocked us before so we’ll block them now’ is the wrong answer.

Second, at least two of the three seats should be filled by women. The Third Circuit has only two active judges who are women, the worst gender imbalance [until recently, see below] of any circuit in the country. Perpetuating that imbalance is unthinkable.

Third, both the Rendell seat and the Fuentes seat should be filled by consensus picks. The precedents here are Judges Greenaway and Vanaskie, both nominated by President Obama with a Democratic-controlled Senate to fill seats that opened during President Bush’s presidency.  Both were moderate centrists — Greenaway was a federal criminal prosecutor and corporate counsel who clerked for a Republican-nominated judge, Vanaskie was MDPA chief judge with a decade and a half on the federal bench and was a Scranton commercial litigator before that.  And both were over 50 when commissioned — Greenaway 52, Vanaskie 56.

Yes, Republicans may have stolen the Rendell and Fuentes seats from Democrats by obstruction, but the way forward for Democrats now is compromise, not more obstruction. So, agree on two well-qualified moderate Republicans in their 50’s, one from PA and one from NJ, and confirm them.

Democrats may fight to fill the Rendell seat with a moderate Democrat, arguing that Republicans stole the seat by Toomey’s indefensible obstruction of Haywood and citing President Clinton’s compromise nomination of Republican Judge Barry as a precedent. That was my view before, and it may still help as a bargaining position, but the fact is those sorts of arguments didn’t get Republicans in the seats filled by Greenaway and Vanaskie, so I don’t expect them to get a Democrat in Rendell’s seat, either.

Fourth and finally, the Fisher seat should be Trump’s to fill with the qualified nominee of his choosing. Judge Fisher waited to go senior until Trump took office, so it’s a Republican seat, fair and square.  If the administration wants a 38 year-old Federalist Society stalwart here, it should be able to. But I expect Casey to insist that this nomination be paired with the Rendell-seat nomination to protect his leverage.

This isn’t rocket science. The right answer is clear enough. The administration and the home-state Democratic senators ought to be able to work together amicably and expeditiously to fill these seats and get the Third Circuit finally back to full strength.

But if Trump tries to fill all three seats with young conservative partisans? Expect a war.

 

UPDATE: Professor Jonathan Adler has helpfully pointed out to me that the Eighth Circuit is now down to one woman active judge (Judge Diane Murphy took senior status in November), so the Third Circuit no longer has the worst gender imbalance of the circuits. Still.

Also, as Howard Bashman‘s How Appealing noted, Professor Orin Kerr responded to this post on Twitter here and here proposing Lee DeJulius, Stephanos Bibas, and Chris Paoelella (“assuming he’s Jersey enough”) for the three seats.

New opinion — a landmark prisoner-civil-rights win in solitary-confinement case

Palakovic v. Wetzel — prisoner civil rights — reversal — Smith

The Third Circuit issued a major prisoner-rights decision today, ably summarized in its opening paragraph:

Brandon Palakovic, a mentally ill young man who
was imprisoned at the State Correctional Institution at
Cresson, Pennsylvania (SCI Cresson), committed suicide
after repeatedly being placed in solitary confinement.
His parents, Renee and Darian Palakovic, brought this
civil rights action after their son’s death. The District
Court dismissed the family’s Eighth Amendment claims
against prison officials and medical personnel for failure
to state a claim upon which relief can be granted. We
write today to clarify and elaborate upon the legal
principles that apply to Eighth Amendment claims arising
out of prison suicides. For the reasons that follow, we
will vacate the District Court’s dismissals.

The opinion chillingly documents Palakovic’s alleged suicide-risk red flags, and it notes that the complaint alleges that the prison’s ” practice for dealing with mentally ill prisoners like Brandon was to relegate them to solitary confinement.” And the court “acknowledge[d] the robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long-term isolation in solitary confinement” and “the increasingly obvious reality that extended stays in solitary confinement can cause serious damage to mental health.”

Joining Smith were Jordan and Shwartz. Arguing counsel were Bret Grote of the Abolitionist Law Center for the prisoner’s estate, Howard Hopkirk of the PA AG’s office for the defendant prison officials, and associate Cassidy Neal of Matis Baum for the defendant medical providers.

Third Circuit’s support-animal ruling generates criticism

Last week I posted about a Third Circuit ruling in Revock v. Cowpet Bay West reviving Fair Housing Act claims by a Virgin Islands emotional-support-dog owner against neighbors who posted online opposing her attempt to live with the animal despite their condominium’s no-pets rule. I wrote:

I’m mighty skeptical that private citizens should be subject to FHA liability for saying mean things online about emotional-support-animal-owning neighbors. I think it’s not unlikely that private citizens will say mean things about today’s opinion.

As predicted, Revock has drawn fire, mainly from conservative commentators. So far I’ve seen this one by Hans Bader on the Competitive Enterprise Institute blog (“menaces free speech,” “[a]larmingly,” “extremely expansive”), this one by Walter Olson on the Cato Institute’s Overlawyered blog, this one by Scott Greenfield on his Simple Justice blog, and this one by Eric Goldman on the Technology & Marketing Law blog, two of which were linked by Howard Bashman on How Appealing. William Goren also discussed the case on his Understanding the ADA blog, and Eugene Volokh flagged it in his latest Short Circuit roundup post on Volokh Conspiracy. So Revock has gotten a lot more attention — and a lot more criticism — than most Third Circuit published opinions.

No petition for rehearing has been filed in the case yet. Given that counsel for the neighbors apparently didn’t challenge whether the support-dog owner had a qualifying handicap and didn’t raise any free speech defense, it’s far from certain one will be.

 

 

New opinion — Third Circuit tackles antitrust-jurisdiction issues in pharma reverse-payments appeals

In re: Lipitor Antitrust Litig. — civil / jurisdiction — partial affirmance — Fisher

In two sprawling MDL antitrust class actions involving drug-company reverse payments consolidated into one appeal, the Third Circuit yesterday addressed two antitrust-jurisdiction issues. First, it held that it (not the Federal Circuit) had jurisdiction over suits involving fraudulent procurement and enforcement of patents, where “patent law neither creates plaintiffs’ cause of action nor is a necessary element to any of plaintiffs’ well-pleaded claims.” Second, it held that the district court erred in denying a post-removal motion to remand to state court on the ground that the defendants had potential federal patent-law defenses, because “federal jurisdiction depends on the content of the plaintiff’s complaint, not a defendant’s possible defenses.” The court remanded appeal involving this second issue for jurisdictional discovery.

Joining Fisher were Ambro and Smith. Amongst a list of counsel that ran 10 pages long in the opinion, arguing counsel for the appellants were: Barry Refsin of Hangley Aronchick, Scott Perwin of Florida, David Sorensen of Berger & Montague, James Cecchi of Carrella Byrne, and James Alioto of California. Arguing for the appellees (the pharmaceutical-company antitrust defendants) were Robert Milne of White & Case, Jay Lefkowitz of Kirkland, and Noah Leibowitz of Simpson Thacher.

New opinions

I’m out of the office this week, and next week is the Third Circuit conference, so my posting will be a bit irregular for a while. To wit, here are yesterday’s two published opinions.

In re: Lansaw — bankruptcy — affirmance — Melloy

The first paragraph:

The filing of a bankruptcy petition operates as an automatic stay of debt collection activities outside of bankruptcy proceedings. 11 U.S.C. § 362(a). If “an individual [is] injured by any willful violation of [the] stay,” that individual “shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” Id. § 362(k)(1). In the present case, Frank Zokaites committed several willful violations of the automatic stay arising from Garth and Deborah Lansaw’s bankruptcy petition. Because of these violations, the Bankruptcy Court awarded the Lansaws emotional-distress damages as well as punitive damages under § 362(k)(1). The District Court affirmed the awards, and Zokaites now appeals. We conclude that § 362(k)(1) authorizes the award of emotional-distress damages and that the Lansaws presented sufficient evidence to support such an award. We also conclude that the Lansaws were properly awarded punitive damages. Accordingly, we will affirm.

Joining Melloy CA8 by designation were Fisher and Krause.

 

Andrews v. Scuilli — civil rights — reversal — Nygaard

The first paragraph:

David Andrews was found not guilty of the crimes for which he was charged. He brought suit against Officer Robert Sciulli for false arrest and malicious prosecution.1 On appeal he contends that the District Court erred by granting summary judgment, on the basis of qualified immunity, in favor of Sciulli. We agree. We will reverse the District Court’s judgment and remand the cause for trial.

Joining Nygaard were Vanaskie and Krause.

New opinion — “alarmed” Third Circuit upholds ruling against DRPA in contract dispute

Alpha Painting v. DRPA — civil — partial affirmance — Rendell

A blistering Third Circuit opinion today upheld a district court ruling that the Delaware River Port Authority improperly denied a bridge-painting contract to the low bidder.  The opinion described DRPA’s underlying conduct as “so puzzling,” done “for reasons that still elude us,” alarm[ing],” and “defy[ing] reasonable explanation.” Its appellate efforts fared no better:

  • “DRPA argues that it has a rational basis for labeling Alpha not responsible. We cannot see how.”
  • “Most of DRPA’s arguments on appeal, in an effort to distract us from this glaring deficiency in proof . . . .”
  • “This argument, however, borders on the frivolous.”

Probably not what DRPA was hoping for when they decided to appeal. The one silver lining for DRPA was that the Third Circuit vacated the lower court’s remedy of awarding the contract to the contractor plaintiff.

Joining Rendell were McKee and Fuentes. Arguing counsel were Thomas Elliott of Elliott Greenleaf for DRPA [misidentified in the original opinion caption, corrected  4/26/17] and former Greenberg clerk Jennifer Hradil of Gibbons for the contractor.

 

 

New opinion — Third Circuit affirms in pro se ERISA appeal

Secretary USDOL v. Kwasny — ERISA — affirmance — McKee

The Third Circuit today affirmed a district court’s grant of summary judgment in an ERISA case against Richard Kwasny, a former law-firm partner who directed employee retirement-fund contributions into the firm’s general assets.

Joining McKee were Restrepo and Hornak WDPA by designation. The case was decided without argument.

Kwasny is identified in the caption as “Attorney for Appellant,” and is listed on Pacer as “Richard J. Kwasny, Esq.” and coded “Pro Se Atty,” having used on his civil information statement an email address starting with “kwasnylaw@.” Kwasny was suspended in PA for five years in 2014 and disbarred in New Jersey in 2015 for mismanaging client funds and practicing law while on administrative suspension.

New Third Circuit Bar newsletter is out

The April 2017 issue of On Appeal, the newsletter of the Third Circuit Bar Association, is out and available at this link. Two of the highlights:

  • a fond tribute to Judge Leonard Garth by one of his former clerks, Rutgers Law School Dean Ronald Chen, and
  • a useful practice note on argument waiver and interlocutory appeals by former Fisher clerk Patrick Yingling of Reed Smith.

This is the first newsletter since Chip Becker of Kline & Specter began his term as 3CBA president, and this issue also includes a gracious President’s Note by him.

New opinion — township officials violated their constituents’ First Amendment rights but win on qualified-immunity grounds

Mirabella v. Villard — civil — reversal — Restrepo

A husband and wife, both lawyers, got into a dispute with their neighbors and tried to get their local government officials to help them. When the township didn’t do what the couple asked, they sent the board an email that said the board’s refusal put them “in the position of having to sue neighbors” and “the Township will be an indispensable party in this litigation.” The then-chair of the township board (he’s since become a county judge) thereafter told the couple, “Please never contact me, the Board of Supervisors or the Township employees directly. . . . The dye is caste.” The couple sued the township and the supervisors, alleging First Amendment retaliation and right-to-petition claims, and the district court denied the defendants qualified immunity.

Today, the Third Circuit reversed, holding that while the couple adequately pled both retaliation and right-to-petition claims, neither right had been clearly established. The court quoted prior precedent that “‘defining constitutional rights and only then conferring immunity … is sometimes beneficial to clarify the legal standards governing public officials.”

Joining Restrepo were Fuentes and Shwartz. Arguing counsel were Harry Mahoney of Deasey Mahoney & Valentini for the defendants and John Mirabella for himself and his wife in a rare grant of oral argument to a pro se litigant.

Cert petition challenging controversial Third Circuit immigration ruling in Castro set for conference

The Supreme Court has distributed for its April 13 conference the petition for certiorari filed in Castro v. DHS, challenging the Third Circuit’s controversial 2016 ruling denying habeas corpus review to petitioners recently seized on U.S. soil. My prior posts on Castro are here, here, and here. The Third Circuit denied en banc rehearing in October by an 8-4 vote, with Judges McKee, Greenaway, Vanaskie, and Restrepo voting in favor.

The cert issues are summarized by Scotusblog thus:

(1) Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that the petitioners are not entitled to judicial review of their statutory, regulatory and constitutional claims, even by habeas corpus, and are “prohibited from invoking the protections of the suspension clause” to challenge their removal; and (2) whether the 3rd Circuit erred in concluding, contrary to every other circuit to address the issue, that persons who have entered the United States may be “assimilated” to the constitutional status of noncitizens arriving at our borders, and thereby denied constitutional rights.

Castro’s petition is supported by four amicus briefs, filed on behalf of the American Bar Association as well as various scholars and organizations. (All the filings are available on Scotusblog.) The brief filed on behalf of 90 immigration-law professors describes the Third Circuit’s ruling as “unprecedented” and “an extreme departure from established law” that “threatens to disrupt fundamental rights and legal precepts far beyond the instant case.” The ABA’s brief is just as hard-hitting: “This Court should immediately review the Third Circuit’s unprecedented decision to deny constitutional habeas protection to persons on U.S. soil.”

Opposing cert, the government’s brief argues that “the court of appeals’ decision is far narrower than petitioners suggest, and creates no conflict with any decision of this Court or any other circuit,” and that the Supreme Court, “has repeatedly indicated that aliens do not instantaneously gain constitutional rights in connection with their admission the moment they cross the border clandestinely.”

Stay tuned.

 

New opinion – housing-rights win for emotional-support-dog owners

Revock v. Cowpet Bay West — civil / housing / disability — reversal — Restrepo

The Fair Housing Act’s protection against housing discrimination covers a disabled person’s reasonable and necessary use of an emotional-support animal in one’s home despite a rule prohibiting one, the Third Circuit ruled today. The court reversed a district court grant of summary judgment in favor of the defendant condominium, holding that a plaintiff’s FHA claim survived her death under federal common law and that there was a factual dispute over whether the condominium refused to accommodate. The court also found a factual dispute over whether the defendants — including a neighbor who criticized the plaintiffs on his blog — interfered with the plaintiffs’ housing rights by harassing them after they complained.

The parties did not dispute, and the court did not decide, whether the plaintiffs were disabled or whether the accommodation they requested was reasonable. Suffice to say emotional-support animals are not universally beloved, as this scathing 2014 New Yorker article confirms.

Restrepo was joined by Fuentes and Vanaskie. Arguing counsel were Karin Bentz of St. Thomas for the plaintiffs; James Parker of Florida, Boyd Sprehn of Benham & Chan, and Kyle Waldner of St. Thomas for the defendants, and April Anderson for the government as amicus supporting the plaintiffs.

UPDATE: I’m mighty skeptical that private citizens should be subject to FHA liability for saying mean things online about emotional-support-animal-owning neighbors. I think it’s not unlikely that private citizens will say mean things about today’s opinion.

 

New opinion — bankruptcy blocks construction liens

In re: Linear Electric — bankruptcy — affirmance — Roth

The Third Circuit today held that a supplier may not file a construction lien under New Jersey law when the contractor has filed for bankruptcy, because doing so would violate the Bankruptcy Code’s automatic-stay provision. Construction liens allow a supplier to collect a debt owed to the contractor by a property owner in order to recoup what the contractor owes to the supplier.

Joining Roth were Shwartz and Cowen. The case was decided without oral argument.

Register before Friday for Third Circuit conference and save $55

The Third Circuit Judicial Conference is just three weeks away. The conference is April 19 to 21 in Lancaster, PA. Nerdy hearts from Erie to St. Thomas are a-flutter.

The conference registration page says that the fee for registration is $495 “before March 31” but goes up to $550 “AFTER March 31.” Appellate sticklers are left wondering what the rate is on March 31. But, to be safe, register by tomorrow.

And, hey, the $55 you save will more than pay for your annual Third Circuit Bar Association dues.

 

New opinion — Third Circuit affirms denial of prison-phone-service provider’s motion to compel arbitration

James v. Global Tellink — civil / arbitration — affirmance — Hardiman

Global Tel-Link contracts with prisons to provide phone service to inmates. They have been accused by the FCC, at least six state attorney generals, and many many many many others of charging inmates excessive rates, reportedly up to $14 a minute!  (Not to be outdone, the other major prison-phone-service provider reportedly has been sued repeatedly for recording attorney-client legal calls.)

In New Jersey, a group of inmates and family members sued Global Tel-Link for charging rates it alleged were “unconscionable.” GTL sought to dismiss some of the claims based on an arbitration clause in the terms of service it posted online. But at least some of the plaintiffs never saw or assented to the terms of service because they signed up by phone.

Today, the Third Circuit affirmed the district court’s order denying the GTL’s motion to compel arbitration. GTL can’t force the plaintiffs to arbitrate their claims just by telling users that using their service constituted acceptance of their terms, without actually informing them of the terms nor eliciting assent to them.

Joining Hardiman were Chagares and Scirica. The case was decided without argument.

New opinion — Third Circuit rules for defendants on CAFA jurisdiction

Ramirez v. Vintage Pharmaceuticals — civil / class action — reversal — Vanaskie

In 2005, Congress passed the Class Action Fairness Act to make it easier for defendants to keep large class actions from being decided by state courts. Under CAFA, a suit can be eligible for removal if more than 100 plaintiffs seek a joint trial, but consolidation only for pretrial purposes doesn’t qualify.

Today, the Third Circuit ruled in favor of defendants seeking to keep a case in federal court, holding that language in the 100+ plaintiffs’ single complaint that “claims have been filed together . . . for purposes of case management on a mass tort basis” wasn’t clear enough to defeat removal: “Where, as here, more than 100 plaintiffs file a single complaint containing claims involving common questions of law and fact, a proposal for a joint trial will be presumed unless an explicit and unambiguous disclaimer is included.”

Joining Vanaskie were Chagares and Krause. Arguing counsel were Angela Vicari of Arnold & Porter for the defendants and Keith Bodoh of Georgia for the plaintiffs.

New opinions — Third Circuit takes sides in circuit split on federal jurisdiction over suits seeking declaratory and legal relief

Rarick v. Federated Mutual — civil / jurisdiction — reversal — Hardiman

Federal courts have broad discretion to refuse to hear declaratory-judgment suits, but a “virtually unflagging” duty to hear suits seeking legal relief. Today, the Third Circuit addressed the intersection of these two standards, deciding how much discretion federal courts have about whether to hear suits seeking both declaratory and legal relief.

Other circuits have split over what jurisdictional standard to apply to these hybrid declaratory/legal suits. The Seventh and Ninth Circuits have ruled that if the legal claims are not independent of the declaratory claims, the court may decline jurisdiction over the entire suit. Three other circuits apply the virtually-unflagging standard. And one has focused on which claims constitute the “heart of the matter,” and this is the standard that district courts within the Third Circuit had followed, including in the two cases decided in today’s appeal.

Today, the Third Circuit adopted the independent-claim test, reversing the district courts. It explained, ” The independent claim test is superior to the others principally because it prevents plaintiffs from evading federal jurisdiction through artful pleading.”

Joining Hardiman were Chagares and Scirica. Arguing counsel were Charles Spevacek of Minnesota and James Haggerty of Haggerty Goldberg.

 

US v. Repak — criminal — affirmance — Smith

The Third Circuit today issued a 68-page opinion affirming a public official’s conviction for extortion and bribery. Ronald Repak, the longtime head of Johnstown, PA’s redevelopment authority, was convicted of getting contractors who did business with the authority to replace the roof on his home and excavate land for his son’s gym. (Something tells me indicted admitted-new-roof-gift-receiver Philadelphia DA Seth Williams won’t enjoy reading this opinion much.)

The opinion addressed a flurry of claims:

  • The court affirmed admission of other-bad-acts evidence under FRE 404(b), even though the district court had failed to explain how the evidence was relevant to the defendant’s mental state or why the unfair prejudice did not outweigh its probative value.
  • The court affirmed admission of evidence that Repak had an affair, rejecting his FRE 403 claim.
  • The court rejected the defendant’s challenges to the sufficiency of the evidence for the Hobbs Act extortion counts and the bribery counts.
  • The court rejected Repak’s plain-error challenges to the extortion and bribery jury instructions.
  • The court rejected Repak’s argument that the indictment was constructively amended.
  • The court denied Repak’s claim that the prosecutor committed misconduct during closing arguments. The court did say that the prosecutor’s reference to Repak’s affair was “inappropriate, irrelevant to any issue at trial, and unnecessarily prejudicial.”

Joining Smith were McKee and Shwartz. Arguing counsel were Laura Irwin for the government and Timothy Lyon of Pittsburgh for the defendant.

New opinion — Third Circuit vacates Fosamax summary judgment

In re: Fosamax — civil — reversal — Fuentes

Plaintiffs alleged that an osteoporosis drug sold by Merck caused thigh-bone fractures. Merck sought summary judgment, arguing that the plaintiffs’ product-liability claims were preempted because the FDA would not have approved the warning the plaintiffs tendered. Today, the Third Circuit vacated, emphasizing that the predictive preemption defense at issue is “demanding” and that the plaintiffs’ evidence was enough to defeat summary judgment.

Of particular note is this paragraph near the end of the opinion:

There is a deeper problem lurking in the District Court’s decision to grant Merck a merits judgment in all of the MDL cases. A mass tort MDL is not a class action. It is a collection of separate lawsuits that are coordinated for pretrial proceedings—and only pretrial proceedings—before being remanded to their respective transferor courts.170 Some purely legal issues may apply in every case. But merits questions that are predicated on the existence or nonexistence of historical facts unique to each Plaintiff—e.g., whether a particular Plaintiff’s doctor would have read a warning in the Adverse Reactions section and ceased prescribing Fosamax as a result—generally are not amenable to across-the-board resolution. Each Plaintiff deserves the opportunity to develop those sort of facts separately, and the District Court’s understandable desire to streamline proceedings cannot override the Plaintiffs’ basic trial rights.171 As a technical matter, Merck’s actual burden at the summary judgment stage was to prove that there is no genuine dispute in every single MDL case that Plaintiffs’ doctors would have continued to prescribe Fosamax even if the fracture warning had been added to the Adverse Reactions section before May 2009. It could not do so, and the District Court’s grant of summary judgment on the merits was therefore erroneous.

Joining Fuentes were Chagares and Restrepo. The opinion ran 78 pages with 172 footnotes. Superstar arguing counsel were former Assistant to the Solicitor General David Frederick of Kellogg Hansen for the plaintiffs and John Beisner of Skadden Arps for Merck. Audio of the oral argument is here.

New opinions — three civil reversals

The Third Circuit issued three published opinions yesterday, all three reversing at least in part.

Aliments Krispy Kernals v. Nichols Farms — civil / arbitiration — reversal — Fuentes

The Third Circuit remanded for a district court to resolve a factual issue about whether the parties to a contract agreed to arbitration. The district court had denied the motion to enforce arbitration, but the Third Circuit ruled that at least two material factual disputes must be resolved first.

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

 

Egan v. Delaware River Port Authority — civil / employment discrimination — partial reversal — Shwartz

The Third Circuit vacated a defense verdict in a suit brought under Family and Medical Leave Act, holding that the district court erred in requiring the plaintiff to support his FMLA claim with direct (as opposed to circumstantial) evidence. The court affirmed the defense verdict on the plaintiff’s claim under the Americans with Disabilities Act.

Significantly, Judge Jordan concurred in the judgment, noting his “discomfort” with Chevron deference and urging that the doctrine “deserves another look.” (He expressed similar views in during a public program in January.)

Joining Shwartz was Smith, with Jordan concurring in the judgment. Arguing counsel were Michael Salmanson of Salmanson Goldshaw for the plaintiff, Rachel Goldberg for the government as amicus supporting the plaintiff, and Zachary Davis of Stevens & Lee for the defendant.

 

Carvalho-Grevious v. Delaware State Univ. — civil / employment discrimination — partial reversal — Fisher

A professor sued a university and administrators under Title VII, alleging retaliation for complaining about discrimination. The district court granted summary judgment in favor of all defendants, but the Third Circuit reversed in part, reviving claims against the university and an administrator. The court endorsed the Fourth Circuit’s view that retaliation plaintiffs need only show at the prima facie stage that retaliation was the likely reason for the employer’s adverse action, criticizing the Sixth and Tenth Circuit’s view that such plaintiffs must prove but-for causation.

Joining Fisher were Ambro and Smith. Arguing counsel were Christine Burke of Karpf Karpf & Cerutti for the professor and James Taylor Jr. of Saul Ewing for the defendants.

Supreme Court reverses Third Circuit on bankruptcy structured dismissals

The Supreme Court this morning reversed the Third Circuit in Czyzewski v. Jevic Holding Corp., holding that bankruptcy courts may not circumvent the Bankruptcy Code’s creditor-payment hierarchy by means of structured dismissals. The Court’s ruling was 6 to 2, with Justices Thomas and Alito arguing in dissent that the Court should have dismissed the case instead.

The Supreme Court opinion is here, the reversed 2015 Third Circuit opinion is linked here.

Cases today

The Court issued three published cases today, but I was presenting about the Third Circuit at a training today and I haven’t had a second to read them yet. Looks like three civil appeals, one of them arbitration and the other two employment discrimination. I’ll post summaries tomorrow.

New opinion — compelling a person to unencrypt his computer wasn’t plain error

US v. Apple Macpro Computer — criminal — affirmance — Vanaskie

The government was investigating John Doe for accessing child pornography on the internet, so they searched his home and seized his cell phone and computer. But Doe’s computer hard drive was encrypted, and the government wasn’t able to access any illegal images stored there. So the government sought an order requiring Doe, essentially, to tell the government his password to unencrypt the computer drive, and the court granted the government’s request. When Doe did not provide his password, asserting that he could not remember it, the court found Doe in civil contempt and ordered him held until he complies. Doe appealed, arguing that it violated his Fifth Amendment right against self-incrimination to compel him to tell the government how to unencrypt his hard drive.

Today, the Third Circuit affirmed without squarely resolving how self-incrimination applies to encryption. Because Doe did not appeal from the district court order that rejected his Fifth Amendment claim, but instead later appealed from the contempt order, the court said its review of the Fifth Amendment was at most for plain error, and it found none. The court also affirmed the contempt order based on evidence tending to show that Doe was able to remember the hard drive password.

Joining Vanaskie were Jordan and Nygaard. Arguing counsel were Keith Donoghue of the EDPA Federal Community Defender for Doe, Mark Rumold of the Electronic Frontier Foundation for amicus curiae, and Nathan Judish for the government.

My prior coverage of the case is here and here, and Professor Orin Kerr’s commentary on today’s ruling is here.

 

Bashman criticizes Third Circuit’s cautious video-posting policy, but I think their caution makes sense

Howard Bashman‘s latest appellate column in Legal Intelligencer is provocative. He criticizes the Third Circuit’s new argument-posting procedures (Rule 2.6 here) as “a set of procedures that even the most hardened bureaucrat would find inspirational.” The upshot, he says, is that only two videos were posted in the first two months, “the softest of imaginable launches.” The Third Circuit’s approach, he writes, is “remarkably cautious” and “seems antiquated and unnecessarily restrictive.”

Bashman suggests this fix:

Instead of creating unnecessary extra work for the lawyers and judges on any given argued case, the Third Circuit should change its policy to provide that the video of all oral arguments will be posted online unless the majority of a panel, either on its own motion or at the request of counsel for good cause shown, decides against it.

It’s a fine column that makes a reasonable point with vigor, but I see the issue a bit differently.

I’m disinclined to criticize the Third Circuit for not going as far as the Ninth Circuit when it’s gone further than all the other circuits. After all, it may well be that, without the cautious procedures Bashman laments, the court would not have been willing to post argument video at all.

And, let’s face it, these are historically scary times to be a federal judge exposed to the public eye. Just ask now-inactive Judge Barry. A presidential candidate turned her into national news by distorting what she’d written in a decade-old opinion. Think what they could have done to her if they’d been able to pore over dozens of argument videos, cherry-picking the most-inflammatory sounding moments to feature in attack ads and viral videos.

True, Judge Barry’s situation is unlikely to recur, but two Third Circuit judges have been mentioned within the past year as short-list Supreme Court nominees. Of course opponents of a Supreme Court nomination would fine-tooth comb every single public argument video the nominee appears in.

It’s not easy being a good appellate judge if you have to weigh every question for how it would play on Fox News or Huffington Post. Asking questions during oral argument is fundamentally different from crafting an opinion. During argument, judges think out loud, they test ideas and limits, and they play devil’s advocate. Sometimes they ask perfectly appropriate questions which, out of context, could be made sensational. They don’t challenge every outrageous argument. And they’re human, so sometimes they say things off the cuff that upon reflection they regret.

All that, plus video can be so much more incendiary and headline-grabbing than dry quotes from an opinion.

Bashman is right that posting argument videos is valuable for lawyers and the public. I share his hope that the pace of video posting increases over time. But I’m content with the procedures the court has in place, and I have no quarrel with the court’s modest start. If I were a Third Circuit judge, I might feel “remarkably cautious” about posting argument videos willy-nilly, too.

The Third Circuit’s new online argument calendar is glorious

A couple years ago, I put together a post about some of the best features of other federal circuits’ websites. One thing I noted was how much easier to use other circuits’ online argument calendars were. The Third Circuit’s old online calendar told you only two things about each case:

  • the short caption, and
  • the case number

That meant if you wanted to find out if any upcoming oral arguments were of interest, you had to trudge, case by case, through Pacer to find out what the appeal was about and who the lawyers arguing it were. What a slog.

The upshot? As I said at the Judges and Journalists event in November, following the Third Circuit was like driving a car down the highway with the windshield painted over. You could look in the rearview mirror to see what just happened (opinions), but it was a lot harder to find out what was about to happen (oral arguments).

Hurrah! The Third Circuit recently updated its online argument calendar, and what an improvement. Now, for each argued case, the online calendar will tell you:

  • the case number
  • each party
  • each arguing attorney
  • brief statements of the appellate issue by each side

Knowing the issues and the lawyers makes all the difference in making it feasible for lawyers, journalists, and the public to follow the work of the court at the argument stage.

To get these details for each case, you click on the case list link on the main page, then click on the case list link on the next page, then, on the arguments page, click on the arrow on the far left next to the case number you’re interested in.

My modest suggestions for improving the online calendar even further:

  1. cut out the unnecessary intermediate page between the calendar and the arguments page; and
  2. instead of having a separate arguments page for each day, it would be easier if an entire week’s arguments were on one page.

I don’t know this, but my hunch is that new Chief Judge Smith had a hand in making this happen. I’m sure implementing this change and entering all the case date is a lot of work for the circuit staff.

I appreciate everyone’s work who made this happen, and I applaud the court for this important upgrade.

Judicial Conference asks for new judgeships, but none for the Third Circuit

The Judicial Conference decided today to ask Congress for 57 new federal judge seats. Five are circuit judgeships, all for the Ninth Circuit. The rest are district judgeships, including three for New Jersey and one for Delaware.

Alas, no new judgeships for the Third Circuit, which hasn’t gotten a new seat in over a quarter-century even though it’s deciding 30% more cases than it did in the late 1990s.

The Judicial Conference announcement is here, and the list of requested judgeships is here.

Three new opinions, including an immigration reversal

Chavez-Alvarez v. AG — immigration — reversal — Ambro

Years after a lawful permanent resident was convicted by a military court of sodomy and other crimes, the government sought to deport him on the theory (among others) that his sodomy conviction was for a crime involving moral turpitude. The BIA upheld removal, “determining that because Chavez-Alvarez’s particular crime was subject to a sentence enhancement because it was committed forcibly, and because the application of the enhancement in his case was the “functional equivalent” of a conviction for the enhanced offense, he was convicted of forcible sodomy.”

Today, the Third Circuit reversed. Applying the categorical approach, the court ruled that a military conviction for sodomy did not require proof of force and, given Lawrence v. Texas, was not a crime involving moral turpitude. The court rejected the argument that the president’s military sentencing guidelines functioned to create separate offenses for categorial-approach analysis.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Craig Shagin of the Shagin Law Group for the petitioner — by my quick count, this is the fourth CA3 published win for Shagin since 2015! — and Sabatino Leo of the DOJ for the government.

 

Fried v. JP Morgan Chase — civil — affirmance — Ambro

In my book, this is opinion-introduction perfection:

Ginnine Fried bought a home in 2007 for $553,330. It was near high tide in the real estate market, but she had to believe she was getting a bargain, as an appraisal estimated the home’s value to be $570,000. Fried borrowed $497,950 at a fixed interest rate to make her purchase and mortgaged the home as collateral. Because the loan-to-purchase-price ratio ($497,950 / $553,330) was more than 80%, JPMorgan Chase Bank, N.A. (“Chase”), the servicer for Fried’s mortgage (that is, the entity who performs the day-to-day tasks for the loan, including collecting payments), required her to obtain private mortgage insurance. Fried had to pay monthly premiums for that insurance until the ratio reached 78%; in other words, the principal of the mortgage loan needed to reduce to $431,597, which was projected to happen just before March 2016.

We now know that the housing market crashed in 2008, and the value of homes dropped dramatically. Fried, like many homeowners, had trouble making mortgage payments. Help came when Chase modified Fried’s mortgage under a federal aid program by reducing the principal balance to $463,737. The rub was that Chase extended Fried’s mortgage insurance premiums an extra decade to 2026. Whether it could do this depends on how we interpret the Homeowners Protection Act (“Protection Act”), 12 U.S.C. § 4901 et seq. Does it permit a servicer to rely on an updated property value, estimated by a broker, to recalculate the length of a homeowner’s mortgage insurance obligation following a modification or must the ending of that obligation remain tied to the initial purchase price of the home? We conclude the Protection Act requires the latter.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Jonathan Massey of Massey & Gail (the attorney who won the Chavez en banc last year) for the bank and Antonio Vozzolo of NJ for the homeowner.

 

Edinboro College Park Apts. v. Edinboro University Foundation — antitrust / sovereign immunity — partial reversal — Smith

When apartment owners sued a state university’s foundation and its president for conspiring to monopolize the student-housing market, the defendants asserted they were state actors immune from antitrust liability. Today, the Third Circuit agreed because the university’s anticompetitive conduct conformed to a clearly articulated state policy and the foundations were directed by the university.

Joining Smith were McKee and Restrepo. Arguing counsel were Matthew Wolford of PA for the apartment owners, Matthew McCullough of MacDonald Illig for the foundation, and Kemal Mericli of the PA AG for the president.

 

Another amazing twist for Fattah Jr.: pro se oral argument

Two years ago, I wrote about the Third Circuit’s remarkable decision to hear the pro se interlocutory appeal of Chaka Fattah Jr. I said:

When a pro se criminal defendant files an interlocutory appeal asking the Third Circuit to stay his prosecution so that he can file pro se appeal to argue why his indictment should be dismissed, his odds of success are more or less zero.

But not actually zero, we now know, because earlier this month the court stayed the criminal prosecution of Chaka Fattah, Jr., son of the embattled member of Congress, and ordered expedited briefing.

* * *

The chances that the court will allow a pro se defendant to orally argue his appeal are zero …

… more or less.

Sadly for Fattah, his interlocutory appeal was dismissed without oral argument and, after a trial, he was convicted of fraud and sentenced to five years in prison.

Now, Fattah has appealed his conviction — pro se, naturally. After the briefs were in (the government needed 3 extensions!) Fattah once again defied long, long odds when the panel granted him oral argument. The court ordered the marshals to produce Fattah, and yesterday he got to orally argue his appeal. A link to the argument audio is here.

When was the last time the Third Circuit heard pro se oral argument in a criminal appeal by an incarcerated appellant? I’ve never heard of it before.

Jeremy Roebuck has this lively report on the oral argument at Philly.com. The panel was Chief Judge Smith and Judges Hardiman and Krause. Roebuck reports that Fattah’s argument elicited “skeptical questions” from the panel and “may not ultimately lead to Fattah’s success.”

The court appointed Ellen Brotman, a top white-collar and appeals lawyer now in solo practice in Radnor, PA, to file a brief and orally argue on Fattah’s behalf as amicus curiae. AUSA Eric Gibson argued for the government.

Chutzpah is not always rewarded in the staid world of federal appellate practice, so it’s fascinating to see how effective Fattah has been in getting the Third Circuit to take his case so seriously.

New opinions — a Title IX blockbuster and a prisoner-civil-rights reversal with a blistering reprimand for the lower court

Two opinions published today — both of them authored by Judge Fisher, both of them partial reversals in favor of civil plaintiffs, and both broadly significant.

Doe v. Mercy Catholic Med. Ctr. — civil / sex discrimination — reversal in part — Fisher

In a major Title IX opinion, the Third Circuit today ruled in favor of a medical resident whose Title IX sex discrimination claims had been dismissed by the district court. The resident alleged that her supervising doctor sexually harassed her and retaliated when she rebuffed him. The court reversed dismissal of claims for retaliation and quid pro quo and affirmed dismissal of a hostile-environment claim on statute of limitations grounds.

First, it ruled that the medical center’s residency program fell within Title IX’s scope, reading education broadly while rejecting the center’s argument that Title IX reaches only principally educational entities. The court listed features for deciding if something is an “education program or activity covered by Title IX:

(A) a program is incrementally structured through a particular course of study or training, whether full- or part-time; (B) a program allows participants to earn a degree or diploma, qualify for a certification or certification examination, or pursue a specific occupation or trade beyond mere on-the-job training; (C) a program provides instructors, examinations, an evaluation process or grades, or accepts tuition; or (D) the entities offering, accrediting, or otherwise regulating a program hold it out as educational in nature.

Second, the court held that Doe’s private causes of action for retaliation and quid pro quo were cognizable under Title IX, rejecting the argument that Title VII’s employment-discrimination provisions (with its elaborate administrative exhaustion requirements) were her exclusive remedy. On this point the court expressly split with the Fifth and Seventh Circuits while joining the First and Fourth Circuits. The court did not reach whether Doe’s private hostile environment claim was cognizable because it held that Doe’s was time-barred, rejecting her argument that her dismissal was part of a continuing violation.

Joining Fisher were Krause and Melloy by designation. Arguing counsel were Joshua Boyette of Swartz Swidler for Doe, Christine Monta for the government as amicus supporting Doe, and Robin Nagele of Post & Schell for the medical center.

 

Pearson v. Prison Health Svc. — prisoner civil rights — partial reversal — Fisher

After an inmate at SCI Somerset in Pennsylvania had a botched surgery for appendicitis, he sued prison and medical staff for Eighth Amendment deliberate indifference, and the district court granted summary judgment for the defendants. Today the Third Circuit ruled in the prisoner’s favor as to one of the defendants and affirmed as to the others.

The court rejected the lower court’s view that expert testimony was always necessary to establish deliberate indifference. The court ruled that lay jurors were capable of deciding that (1) a prison nurse acted with deliberate indifference when he forced the prisoner, screaming in pain, to crawl to a wheelchair to obtain treatment, and (2) delay or denial of treatment for a non-medical reason was deliberate indifference.

The court also “[r]egretfully” criticized Magistrate Judge Keith Pesto and District Judge Kim Gibson (though neither is named in the text of the opinion) for irrelevant editorializing generally to the effect that too many prisoner suits were frivolous:

When we remanded this case, we were hopeful that the Magistrate Judge and District Judge would cease making these kinds of irrelevant, categorical statements for several reasons, including that they are unnecessary and might cast our judicial system in a bad light by leading an observer to question the impartiality of these proceedings. In addition, it is antithetical to the fair administration of justice to pre-judge an entire class of litigants, and we expect courts to conduct, at a minimum, a careful assessment of the claims of each party. By failing to exhibit such an individualized inquiry, these statements disserved the important principle that “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 13 (1954).

Despite our optimism, and despite our admonishment of these sorts of categorical statements, this commentary continued since we last remanded this case to the District Court. ***

As we noted in Pearson’s prior appeal and will reiterate now, Pearson suffered from two serious medical conditions, and “it does not appear . . . that he filed this lawsuit for recreational purposes or to harass prison personnel.” Pearson, 519 F. App’x at 84. It appears he filed this suit because he genuinely believes that the prison officials acted deliberately indifferent to his medical needs in violation of his constitutional rights. Whether or not he ultimately prevails, equality before the law is one of the founding principles of our government and Pearson deserves to have his case treated as carefully and thoughtfully as any other litigant’s.

While we remain convinced that the Magistrate Judge and District Judge are capable of handling Pearson’s trial without any bias, we trust that our message will be heard on this third remand and that this editorializing will cease going forward.

Extraordinary stuff.

In a footnote, the court added that district judges are responsible for magistrate judges’ reports that they adopt in their entirety, and it noted that district judges and magistrates must recuse, sua sponte, whenever their impartiality might reasonably be questioned!

Joining Fisher were Krause and Greenberg. Arguing counsel were Brandon Verdream of Clark Hill for the prisoner, and Kemal Mericli of the PA AG’s office and Kathryn Kenyon of Meyer Unkovic for the defendants.

New opinion — Third Circuit affirms in a difficult habeas case

Johnson v. Lamas — habeas corpus — affirmance — Rendell

When William Johnson was tried in Philadelphia for murder, his co-defendant refused to testify against him, so the prosecution just introduced the co-defendant’s earlier statement implicating Johnson. That violated Johnson’s Confrontation Clause right, the Third Circuit said and the Commonwealth conceded, but on Friday the court affirmed anyway because it held that it was not unreasonable for the state court to rule that the error was harmless. Actually, the state court only addressed whether the error prejudiced the defendant and could not have influenced the outcome of the case, and I’m not sure the panel was correct at fn.21 to treat that as a decision on whether state proved the error was harmless beyond a reasonable doubt. But that’s a byzantine habeas issue and it’s not obvious whether a different analysis would have changed the outcome.

The Third Circuit also rejected Johnson’s argument that the prosecutor violated due process by insisting that the co-defendant take the stand even though the prosecutor knew he would refuse to testify. The state court had denied this claim, and the Third Circuit said: “We do not need to determine whether we owe deference to the Superior Court’s determination because we do not think the authorities Johnson relies upon clearly establish a due process violation.” I’m very skeptical that this reasoning is correct — I’m aware of no support for the idea that 2254(d)’s “clearly established” requirement still applies if the federal court does not owe deference to the state court decision, and the court does not cite any.

Rendell was joined by Fuentes and Krause. Arguing counsel were David Rudovsky of Kairys Rudovsky for Johnson and Catherine Kiefer of the Philadelphia DA’s office for the commonwealth. The argument was over a year ago.

Note: the court issued this opinion on Friday, but I was out of the office.

New opinion — a stone-crazy Philadelphia murder trial results in rare habeas reversal

McKernan v. Superintendent — habeas corpus — reversal — Roth

The Third Circuit today reversed a district court’s denial of habeas corpus relief, holding that the trial counsel provided ineffective assistance and the state court’s ruling to the contrary was unreasonable.

Today’s case arose from a late-90s Philadelphia murder trial.  Mid-trial, the judge told the victim’s family in chambers that she was very disturbed that they were criticizing her publicly and that she did not want to hear the case if they were unhappy with her. The family’s website described how the judge had been criticized by Charlton Heston as “Let ’em Loose Lisa” and “a bleeding heart judge that often sympathizes with murderers,” which the judge told the family was “a total lie.” Defense counsel was present when the judge said all this, but he advised the client not to seek the judge’s recusal. In the end the judge found the defendant guilty of first-degree murder.

In the part of the opinion likely to have the broadest significance, the court held that defendants’ right to an impartial trial extends to bench trials (trials such as this one where judges not juries are the factfinders). On the merits of McKernan’s ineffective-assistance claim, the court found that, “in the unique circumstances of this case,” counsel’s failure to seek the judge’s recusal was deficient performance because any competent attorney would have done so.

Joining Roth were Fisher and Greenaway. Arguing counsel were Maria Pulzetti of the EDPA Federal Community Defender for the petitioner and Joshua Goldwert of the Philadelphia DA’s office for the Commonwealth.

Early Reuters coverage of today’s opinion here, and Jeremy Roebuck’s Philly.com story is here.

New opinion — court affirms criminal conviction

US v. Jackson — criminal — affirmance — Greenberg

The Third Circuit today affirmed a drug-dealing conviction, summarizing its ruling thus (footnote omitted):

Jackson challenges the district court authorized wiretaps because he
contends that the state court lacked jurisdiction to permit the
underlying wiretaps of cellphones outside of Pennsylvania. In
this case intercepted calls were placed and received outside of
that state, even though the calls in part concerned cocaine
trafficking in Pennsylvania. Accordingly, Jackson contends that
the evidence obtained through the federal interceptions was the fruit of illegal conduct and should have been suppressed.

Jackson also claims that during the trial there were three
unchallenged prejudicial plain errors: (1) the admission of a case
agent’s testimony interpreting the contents of certain telephone
calls; (2) the admission of co-conspirators’ testimony about their
convictions and guilty pleas for the same crime; and (3) the
prosecutor’s mention of a co-conspirator’s Fifth Amendment
right not to testify when she was prompted to identify the
evidentiary rule that permitted the admission into evidence of
what otherwise would have been inadmissible hearsay. Jackson
urges that those errors separately and cumulatively require
reversal of his conviction.

We conclude that inasmuch as the District Court did not
err in denying Jackson’s motions to suppress the wiretap
evidence and his other contentions of error, even if correct,
would not make claims rising to the level of plain errors
entitling him to relief, we will affirm Jackson’s conviction.

Joining Greenberg were Fisher and Krause. Arguing counsel were F. Clinton Broden of Dallas, TX for the defendant and Donovan Cocas for the government.

New opinions — a partial sentencing reversal and an odd dual-juries affirmance

US v. Douglas — criminal sentencing — partial reversal — Shwartz

The Third Circuit today held that a district court erred when it imposed an obstruction-of-justice enhancement to a defendant’s criminal sentence. The enhancement was imposed because the defendant missed his original trial date due to an emergency room visit, but this was error because the government did not prove that the failure to appear was willful.

Over Judge Greenaway’s dissent, the court rejected the defendant’s claim that the court also erred by imposing a sentencing enhancement for abuse of a position of trust. The majority held that being a non-supervisor airline mechanic with a security clearance qualified for the enhancement.

Judge Greenaway’s dissent began:

The Sentencing Guidelines are meant to constrain judicial discretion, focusing and channeling decisions about criminal punishment in order to provide consistent,disciplined conclusions. I fear that my colleagues have shed those constraints. By disregarding the binding source of law here—the Sentencing Guidelines themselves—the majority has left the abuse of a position of public trust enhancement without limits on its scope. The Guidelines, and our consistent precedent in applying them, delineate particular sorts of abuse of trust which trigger this enhancement. The majority’s interpretation sweeps those textual and precedential distinctions away, rendering the enhancement indiscriminately applicable to a panoply of criminal actors.
Joining Shwartz was Vanaskie in full and Greenaway in part. Arguing counsel were Arnold Bernard, Jr. of Pittsburgh for the defendant and Michael Ivory for the government. The case was argued last March.

 

US v. Brown — criminal — affirmance — Jordan

The Third Circuit held that a district court did not commit plain error when it empaneled separate juries, one for this defendant and one for his co-defendant, for the same trial. The court noted that dual-jury trials “seem[] to have very little precedent in this Circuit,” and “we do not mean by this ruling to encourage the practice.”

Brown also urged the court to reconsider its 2014 en banc holding that defendants must object to procedural errors at sentencing to avoid plain error review. Problem was, he didn’t actually assert any errors with his sentence!

Joining Jordan were Chagares and Hardiman. The case was decided without oral argument.

How to make your briefs easier for judges to read

Lawyers are not always rational. We buy $600 shoes to wear for oral argument, to stand hidden from the navel down by a lectern and 10 yards from the nearest Article III personage, but we file briefs that, by the standards of professional typography, look like dogshit.

Here are five ways to make your briefs easier for judges to read:

  1. No all-caps claim headings. SORRY, BUT YOUR FOUR-LINE-LONG ALL-CAPS CLAIM HEADINGS ARE VIRTUALLY UNREADABLE. A JUDGE’S ATTENTION IS YOUR MOST PRECIOUS RESOURCE, DON’T FRITTER IT AWAY BY MAKING THEM SLOG THROUGH NARCOLEPSY-INDUCING HEADINGS JUST BECAUSE THAT’S HOW YOU’VE ALWAYS DONE IT. And Oh By The Way Those Long Title-Caps Headings Are No Picnic To Read, Either. Just use regular capitalization for your claim headings, boldfaced in the argument section and unbolded in the table of contents. Save all-caps for your section headings (statement of facts, argument, etc.) and furious emails.
  2. No Courier. Don’t use a typewriter-style font, they’re harder to read. Seen any books, magazines, or newspapers set in Courier lately? Me neither. Font choice matters. Use a proportionally spaced serif font, and bonus points if you pick one besides Times New Roman.
  3. Wider side margins. FRAP 32 requires margins of “at least one inch,” not ‘exactly one inch.’ Bigger margins equal shorter lines and more white space, and both make reading easier. Sure it will add more pages, but the word count is what matters. Use 1.2″ to 1.5″ side margins instead.
  4. Avoid substantive footnotes. Lots of judges — including Third Circuit judges — read briefs on tablets instead of on paper. For tablet readers, jumping back and forth between the text and footnotes is extra tedious. They’ll find you extra tedious if you keep sticking your points in footnotes.
  5. Use italics instead of underlining. Underlining citations or for emphasis is a relic of the typewriter age. Underlining interferes with easy reading by making it harder for your eye to recognize lowercase letters like y and p.

There’s a lot more to professional typography than these five points — check out Matthew Butterick’s stupendous book Typography for Lawyers (2d ed.), or the Seventh Circuit’s useful little online typography guide. But getting the basics right is a fine start.

Making your brief less of a chore for busy judges to read will do more for your client’s chances, and your own image, than those Bruno Maglis ever will.

The new Third Circuit Appellate Practice Manual is out, and you need it

The new edition of the Third Circuit Appellate Practice Manual has been released, and I just ordered my copy. If you haven’t already, you should order it too. Owning the APM is not optional if you practice in the Third Circuit and want folks to think you know what you’re doing.

Here is a link to the third edition’s table of contents. Two things stand out.

First, it covers it all, from whether to appeal to seeking certiorari. The previous edition is seven years old, and the new edition updates everything. It also adds two new chapters, on federal certification of state law questions and amicus briefs.

Second, the roster of authors is simply spectacular. Chief Judge Smith and Judges Scirica, Aldisert, Ambro, and Krause all have contributed. The co-editors are James Martin and Nancy Winkelman. Howard Bashman covers electronic filing. Bruce Merenstein covers who may appeal. Charles Becker and Patricia Dodszuweit handle motions practice. David Rudovsky tackles oral argument. Peter Goldberger covers criminal and habeas appeals. Deena Jo Schneider handles rehearing petitions. You get the idea.

The APM is published by PBI Press and costs $177 shipped, plus tax. It is 720 pages and comes with a searchable thumb drive. PBI will send you automatic updates unless you opt out.

I bought the 2010 second edition back when I started my practice. I keep it next to my desk and use it on every Third Circuit appeal I do, scribbling notes in the margins as I go. Using it over the years, I’ve been struck again and again how much effort all the authors put in to make each chapter indispensable. It’s like having a couple dozen of the best lawyers in the circuit whispering advice in your ear as you do your appeal, only less awkward.

Chief Judge Smith writes in the introduction, “every lawyer who picks up this volume ought to see each chapter as a ‘must read.’ I know I do….” Me too.

 

Judge Fisher takes senior status and becomes law school jurist in residence

Third Circuit D. Michael Fisher has taken senior status, effective February 1. I’d predicted here that he would and made passing mention here that he had, but it’s an important event that warrants its own post.

Judge Fisher, 72, served as an active judge on the court since 2003. He had been eligible to go senior since 2014. His assumption of senior status creates a third open seat on the court.

The same day Judge Fisher assumed senior status, he was named the University of Pittsburgh Law School’s first Distinguished Jurist in Residence:

Currently an adjunct professor at Pitt Law, he is expected to teach two courses every fall term and be on site during the spring term to meet with students and participate in other activities.

“The Distinguished Jurist in Residence program advances the law school’s twin goals of excellence in teaching in order to ensure that our graduates are practice-ready and of encouraging the kind of public service to which Judge Fisher has dedicated his career,” said Pitt Law Dean William M. Carter Jr. “This new program will bring extraordinary judges to the law school to enrich the educational experience of our students, and I am proud and honored that Judge Fisher has agreed to serve as our inaugural Distinguished Jurist in Residence.”

“I have had a longtime association with the University of Pittsburgh and its law school as a Trustee and adjunct professor,” said Fisher. “It is exciting to have this opportunity to take a more significant role at the law school to work with outstanding faculty under the leadership of Dean Carter and to help in the education of our excellent students.”

It’s a well-deserved honor for the court’s newest senior judge.

New opinion: Third Circuit sets limits on death-row solitary confinement

Williams v. Secretary — prisoner civil rights — affirmance — McKee

In a major opinion issued today, the Third Circuit held that death row inmates have a due process right not to be housed in solitary confinement, without meaningful review, after a court has vacated their death sentences. The court recognized this right and held that it is clearly established (and thus enforceable in a federal civil rights suit) going forward, but it affirmed the district court’s grant of summary judgment against the two prisoners who brought these suits because the right was not clearly established until this opinion.

Both plaintiffs originally were sentenced to death, later won sentencing-phase relief, and in the end were re-sentenced to life in prison. Years passed after the courts vacated their death sentences before their resentencings — 6 years for one of them, 8 years for the other — and the prisons kept them in solitary confinement on death row the whole time, without any regular review of their housing status. The two prisoners brought federal civil rights suits, alleging that keeping them in solitary on death row violated their due process liberty interests. In today’s opinion, the court affirmed on qualified immunity grounds but established a precedent that will bar prisons from continuing this appalling practice.

Joining McKee were Fuentes and Roth. Arguing counsel were James Bilsborrow of New York (a former Smith clerk) for the prisoners and John Knorr III of the OAG for the defendants.

Judge Barry assumes inactive status

The Associated Press reported on Thursday that Third Circuit Judge Maryanne Trump Barry assumed inactive status, effective immediately. She will cease hearing cases; according to the report she is giving up her staff and chambers but can still serve on court committees. Chief Judge D. Brooks Smith complimented her in the story as “a talented judge with a knack for handling complex cases.”

Characteristically, Judge Barry did not announce a reason for stepping down now. She is 79 years old and has been a federal judge for over three decades, and that’s reason enough. But she also has landed in the headlines often over the last year and a half for reasons related to her brother, President Trump. I get the sense that she detests the controversial attention, and I can’t help wondering if that contributed to her decision to go inactive now.

Judge Barry is the second Third Circuit judge to assume inactive status in the past year, after Judge Sloviter did so last April.  The court now has only two active and two senior sitting women judges.

Circuit bar-status notices will be emailed out next week

The Third Circuit has posted this notice on its website:

Beginning on February 6, 2017, the Third Circuit Court of Appeals will initiate its 2017 campaign to update its attorney rolls pursuant to Rule 17.2 of the Rules of Attorney Disciplinary Enforcement. Counsel who have not entered an appearance or have not updated their contact information within the past 5 calendar years will receive a personalized email. The email will provide a direct link for counsel to confirm or update his or her contact information and to request that active status be maintained or to elect an alternative status.

Please do not delete the email as a failure to respond will result in counsel’s status being changed to inactive. See R.A.D.E. 17.2.

Counsel may access the Attorney Admissions Checker for his or her current status and the date that he or she last entered an appearance. Please refer to the Attorney Admissions page on the Court’s website for additional information and answers to frequently asked questions.

New opinion — court grants resentencing after remand from Supreme Court

US v. Steiner — criminal sentencing — reversal — Fuentes

The Third Circuit today vacated a criminal sentence, ruling that the district court committed plain error when it sentenced the defendant as a career offender using a conviction under Pennsylvania’s burglary statute. That statute is not divisible and thus the sentencing court was obligated to apply the categorical approach instead of the modified categorical approach it used.

The posture of the case was interesting. The court had affirmed the defendant’s conviction in a 2016 published opinion that I discussed here. (I’m not rehashing the parts of today’s opinion that remained unchanged, though they are significant.)  In his petition for certiorari, as the court explained maybe a wee bit defensively, the defendant raised his sentencing argument for the first time, and the Supreme Court vacated and remanded. On remand, the government confessed plain error, and the court agreed.

Also of note: the court recognized that the defendant likely had already served longer than he would be resentenced to and therefore ordered him released pending expedited resentencing.

Fuentes was joined by Jordan and Vanaskie. Arguing counsel remained Renee Pietropaolo for the defendant and Jane Dattilo for the government.

We get to keep Judge Hardiman

Last week I predicted that President Donald Trump would nominate Third Circuit Judge Thomas Hardiman over Tenth Circuit Judge Neil Gorsuch. Yesterday, Trump picked Gorsuch. Whatever other talents I may have, it appears that reading Trump’s mind isn’t among them.

I feel for Judge Hardiman, who earned heartfelt support from those he’s worked with, regardless of party affiliation, from every phase of his career. The past weeks cannot have been relaxing for the Judge and his family. He came so very close.

But while I’m sad today for Judge Hardiman, I’m glad for the Third Circuit. For now at least, we get to keep him.

An “exposed … plagiarist” just broke the news that Gorsuch is the nominee

Benny Johnson of Independent Journal Review has this report confirming that President Trump will name Judge Neil Gorsuch as his Supreme Court nominee.

Two high-ranking administration sources have confirmed to Independent Journal Review that President Donald Trump’s Supreme Court pick is Colorado Judge Neil Gorsuch.

Gorsuch, who recently traveled to Washington, D.C., was put on Trump’s short list for the appointment after he met with the then-president-elect after the 2016 election.

Speaking on background, an administration source instrumental to the SCOTUS selection process tells IJR, “Yes. It is Gorsuch. 100 percent. The Hardiman thing is a head fake.” Thomas Hardiman is the other judge Trump was considering for the vacancy, who is also in Washington, D.C.

A second source within the Trump administration confirmed IJR’s reporting.

A head fake? Good god.

Now, if I were a high-ranking administration source eager to pour my leaking heart out about who the President of the United States was going to nominate to the Supreme Court, Benny Johnson is not the reporter I would choose. This 2015 Washington Post story calls him a “disgraced journalist[]” and describes how he lost his job as “viral politics editor” at Buzzfeed when he was “exposed as a plagiarist.”

Strange days.

 

CNN is reporting that Gorsuch has been told he is the likely pick

Link, story by Ariane de Vogue:

The two judges who have been considered the top finalists to be President Donald Trump’s nominee for the Supreme Court — Neil Gorsuch and Thomas Hardiman — are being brought to Washington ahead of tonight’s White House announcement, sources tell CNN.

The move comes as there were increasing indications that Gorsuch will be Trump’s choice, sources briefed on the White House deliberations tell CNN.

One source said that Gorsuch was told it was likely him. Those close to the process warn that until it is announced, Trump could change his mind.

 

Earlier

Here are a few Twitter chatter highlights:

Bill Kristol: “I actually think Trump will name Gorsuch, and look forward to @tribelaw putting partisanship aside and testifying for him.”

Laurence Tribe: “Gorsuch is as smart as he is conservative, and he writes elegantly. Hardiman is a friend of Trump’s sister. Whom do YOU think T will name?”

Eric Lesh: “So according to @NPR reporting, Trump SCOTUS shortlister, Judge Hardiman, personally thinks climate change is a hoax npr.org/2017/01/30/512

Orin Kerr: “If Trump wants to lock in support from his GOP base, I think he’ll get that with Gorsuch. Not so much with Hardiman.”

Ann Coulter: “If @realDonaldTrump’s S. Ct nominee is Hardiman, Trump’s immig. policies won’t stand a chance. Hardiman is the Jeb! Bush of judges.”

Rogue POTUS Staff: “#UnholyTrinity back Gorsuch for SCOTUS. Had POTUS convinced. But POTUS swaying back to Hardiman for spite, despite look of more nepotism.”

Peter Hasson: “Source tells me re: SCOTUS: Trump liked Hardiman’s personality/blue-collar background but concerns over Hardiman’s immigration stance.”

Melissa Stanzione: “tidbit: Been talking 2 a lot of former clerks for #SCOTUSnominees Gorsuch, Sykes, Pryor, Kethledge & Hardiman 1/ Not one peep from Hardiman clerks??? Any former clerks who want to chat? What could it mean??? 2/  Correction: haven’t been talking to Hardiman clerks because haven’t gotten responses!”

Ed Whelan: “I knew that this would be a boring presidency.”

Jeff Zeleny [CNN]: “Two finalists – Gorsuch and Hardiman – being brought to Washington ahead of announcement, learns. Many signs point to Gorsuch.”

Deirdre Walsh [CNN]: “SCOTUS news:Gorsuch told he’s likely pick but Trump bringing Hardiman to DC too via @Arianedevogue & @PamelaBrownCNN”

Daniella Diaz [CNN]: “There is increasing indications that Neil Gorsuch will be Trump’s choice for SCOTUS. ”

Aaron Martin: “Fed Judge Mike Fisher on possible #SCOTUS nom of coworker Hardiman: “A great choice…would be nice to have someone from Pgh on SC.” #WPXI”

SCOTUSDaily: “Word has it, Gorsuch is our guy. #SCOTUSnominee”

Kevin Daley: “I’m hearing that personnel are in place in Washington to guide GORSUCH through the confirmation process.”

Peter Hasson [DailyCaller]: “Sources close to Trump: pick is supposed to be Gorsuch and was settled days ago..But still outside chance Trump calls audible (Hardiman)”

Liberal website: Hardiman is conservative

Dylan Matthews just posted this article on Vox, headlined, “Why some conservatives fear Donald Trump is about to betray them on the Supreme Court.”

The article rehashes (unfounded) conservative fears that Hardiman will prove to be a liberal like Justice Souter, with a few details new to me — Allahpundit? It also regurgitates the suddenly omnipresent Common Space analysis that purports to demonstrate — science! — that Hardiman will be a centrist, essentially because PA’s Senators at the time of his elevation were Republican Arlen Specter and the then-just-elected Democrat Bob Casey. Oy. But in the end Vox concludes that conservatives have little to worry about with Hardiman, which I’m sure will be a great relief to them.

A Hardiman profile in Delaware Law Weekly

P.J. D’Annunzio just posted this profile of Judge Hardiman for Delaware Law Weekly, headlined, “Eyes Shift to Hardiman as Trump Prepares His Supreme Court Pick.”

One good quote here (link added):

Stephen Orlofsky, a former New Jersey federal judge and past president of the Third Circuit Bar Association, has had cases before Hardiman.

Orlofsky said Hardiman doesn’t betray any political leanings on the bench.

“I have not found Hardiman to be an ideologue,” he said. “He calls it the way he sees it, he’s always well prepared, he’s a smart guy. I’d rather appear before him then a lot of judges because he’s engaged.”

But I believe my favorite part of the story comes when the intrepid reporter calls up Judge Barry’s chambers for a comment:

[A]n assistant to Trump Barry relayed a message from the judge: she “hasn’t done interviews for the past 34 years and isn’t going to start now.”

Santorum among those backing Hardiman

Shane Goldmacher and Eliana Johnson just posted this story on Politico, headlined, “Trump’s Supreme Court pick gets personal.” Former Senator Santorum’s take:

Those pushing Hardiman, including former presidential candidate Rick Santorum, are explicitly appealing to Trump’s populism.

“I just think this is a signature moment for the president,” said Santorum, who has been in touch with Trump, Vice President Mike Pence and other administration officials to lobby on Hardiman’s behalf.

“You wouldn’t know he’s a federal judge. You just wouldn’t,” Santorum said of Hardiman, who said he spent time with in Washington during the inauguration. Santorum said the responses when people met Hardiman were the same: “’That guy is going to go on the Supreme Court? He’s such a good guy, he’s such a real person.’”

“You have Gorsuch, who comes from a pedigree, a background — in the vernacular you would say he’s an elite — went to Columbia and Oxford and Harvard and clerked for the Supreme Court and his parents were in the Reagan cabinet which is a terrific pedigree…He would be a very traditional pick and would fit in with all the other Harvard and Yale-educated lawyers on the court,” Santorum said. “The one thing I’ve always liked about Tom is Tom is not your Harvard, Yale lawyer.”

Santorum was a PA senator when Hardiman was chosen for the district court in 2003.

The article reports that “Gorsuch remains the favorite in elite conservative legal circles.”

New opinions — two civil affirmances

Issa v. School District — education — affirmance — Fisher

The Third Circuit today affirmed a district court ruling granting a preliminary injunction in favor of international-refugee students who alleged that their school district violated federal law when it denied their request to transfer from a for-profit school for at-risk students into a public school with intensive ESL offerings. It’s an impressive opinion, readable and fact-grounded.

Joining Fisher were Krause and Mellow CA8 by designation. Arguing counsel were Thomas Specht of Marshall Dennehey for the district and Witold Walczak of the PA ACLU for the students.

 

Capps v. Mondelez Global — employment discrimination / FMLA — affirmance — Restrepo

The court ruled for the employer in a family-leave-suit appeal today, holding that “an employer’s honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim.”

Restrepo was joined by Fuentes and Shwartz. Arguing counsel were Christine Burke of Karpf Karpf for the employee, Leslie Greenspan of the Tucker Law Group for the employer, and Jeremy Horowitz of the EEOC as amicus.

RedState: “Donald Trump’s Supreme Court Pick Should Not Be Thomas Hardiman”

Link here. The gist:

In my view, Thomas Hardiman does not have enough of a record of solid calls in controversial cases to give judicial conservatives confidence that he can withstand the heat of deciding a nationally debated case that is central to the culture wars. Of the three current front-runners, Bill Pryor and Neil Gorsuch fit that bill more closely.

Hardiman is conservative, no doubt — in a somewhat authoritarian way at times. He is solid on the Second Amendment, where his decisions give the greatest hope to judicial conservatives that he would be willing to stick his neck out for a principle. Hardiman tends to be more authoritarian on the First Amendment and other issues relating to government power.

But most fundamentally, we don’t really know whether he has the backbone to stare down leftist orthodoxy in a tough case. Understand: judging is not a matter of achieving the “right result” but a question of how you get to the result. Whether Hardiman is a consistent enough judicial conservative to replace Antonin Scalia is, in my mind, an open question. I thought John Roberts was a solid pick despite his relatively sparse record, and folks like Ann Coulter disagreed, saying we didn’t have a solid enough basis to know what Roberts would do.

Turned out she was right.

We can’t make that mistake again.

 

White House sources say Trump could announce Supreme Court pick Monday and Hardiman is the leading contender: roundup [updated]

UPDATE Monday: President Trump has tweeted that he has made his choice and will announce it Tuesday at 8 p.m.

Julie Pace of AP reports:

A White House official says President Donald Trump could announce his pick for the Supreme Court as early as Monday.

Trump originally said the announcement would come on Thursday, but the official says the timeframe could be sped up.

Three federal appeals court judges are said to have emerged as leading candidates: Neil Gorsuch, Thomas Hardiman and William Pryor. The official says the president has also been considering Diane Sykes, one of his early favorites for the high court seat.

[UPDATE: ABC reporter Jonathan Karl tweeted Sunday afternoon that the White House is preparing for a nomination announcement “likely Tues[day], possibly tomorrow.” He also tweeted that a senior administration official told him Trump’s short list was down to Gorsuch and Hardiman.

CNN confirms and adds (emphasis mine, hyperlinks omitted):

President Donald Trump has settled on his first Supreme Court nominee and is poised to reveal his selection early this week, two officials say, in an announcement that many inside the White House hope could change the subject from a weekend of thundering criticism over the executive order on immigration.

* * *

“Our world changes constantly but there is a very good chance we are announcing early this week unless (President Trump) changes his mind about who,” a senior adviser told CNN.

* * *

Hardiman emerged as the leading contender, two people close to the process said, but they cautioned that Trump could still change his mind and deliver a surprise.]

Also today, Joel Gerhrke reports in the Washington Examiner that an anonymous source revealed President Trump’s assessment of Judge Hardiman:

“‘He’s probably the most conservative judge that can get confirmed,'” a well-placed source familiar with the deliberations quoted Trump as saying in a private meeting.

Yesterday Sari Horwitz had this profile of Judge Hardiman. Among those quoted discussing Hardiman is Chip Becker:

“As a judge, he’s thoughtful, decent and tries hard to stay true to the contours of the law and facts when reaching a decision,” said Charles “Chip” Becker, a partner at Kline & Specter in Philadelphia and president of the Third Circuit Bar Association who has argued before Hardiman several times. “Personally, he’s warm, friendly and funny.”

Becker points to Hardiman’s opinion in the case Florence v. Board of Chosen Freeholders , a challenge to the strip-search policy in a New Jersey jail, to emphasize that Hardiman is known for seeing “the varying sides of an issue.”

Also yesterday, Ariane de Vogue had this Hardiman profile on CNN.com, headlined, “Thomas Hardiman, the non-Ivy League Supreme Court candidate.”

And on Friday, arch-conservative blogger Paul Mirengoff had this post, entitled, “What to Make of Trump’s Sister’s Praise for Potential Supreme Nominee.” He concludes (correctly, in my view) that Judge Barry’s reported support for Hardiman sheds little light on how conservative he is. And, to his credit, Mirengoff now says he was wrong to call one of Barry’s opinions “obscenely pro-abortion,” admitting he “went too far” (and, to my astonishment, hyperlinking his “too far” admission to this blog’s criticism of his statement).

Finally, David Savage had this fine Hardiman profile in Friday’s Los Angeles Times, describing him as “a conservative jurist from Pittsburgh with a personal story not unlike many of the blue-collar voters who catapulted Trump to the White House.”

 

Law professor bashes Third Circuit’s Castro decision and calls Hardiman’s vote “close to being disqualifying”

Professor Steve Vladeck posted this today at the Just Security blog, entitled, “The Muslim Ban, Judicial Review, and the Supreme Court.” Here it is, quoted nearly in full:

There’s so much to say about the Executive Order on immigration issued on Friday by President Trump. * * *

Needless to say, judicial review has already played an enormous role here–and could play an even bigger role going forward. And each of the courts to act on the Executive Order thus far have assumed that the non-citizens at issue have a right to the very judicial review they are invoking. But at least in the Third Circuit, that’s not at all clear–thanks to that court’s deeply troubling ruling last August in Castro v. Department of Homeland Security.

In a nutshell, Castro held that non-citizens physically but not lawfully present on U.S. soil are not protected by the Constitution’s Suspension Clause–meaning that they have no constitutional right to judicial review, even if their detention and/or removal from the country is clearly unlawful. In reaching this holding, the Third Circuit made two massive analytical leaps (and errors), both of which I documented at length in a longer post from August. First, the Court of Appeals held that the so-called “entry fiction,” under which the Supreme Court treats arriving non-citizens literally stopped at the border as if they are not technically on U.S. soil for purposes of the applicability (or not) of certain constitutional protections, extends to non-citizens living in the United States who do not have lawful immigration status. The Supreme Court has never embraced this extension, and indeed, has handed down several decisions recognizing at least some constitutional protections for such individuals–and for good reason. Second, even assuming the “entry fiction” extends to non-citizens physically but not lawfully present in the United States, the Third Circuit held that non-citizens in such status have no entitlement to judicial review under the Suspension Clause, even though the Supreme Court has never suggested that the Suspension Clause (as opposed to, e.g., the Due Process Clause) doesn’t apply “at the border,” and, indeed, has expressly applied the Suspension Clause to non-citizens detained at Guantánamo–who, obviously, have even less of an entitlement to constitutional protection than folks physically detained on sovereign U.S. territory.

My post from last August offers longer analysis of why this reasoning is so problematic. And a petition for certiorari in the Supreme Court is already pending in Castro (with the government’s response due on February 27). I wanted to re-up this issue this morning, though, for two different reasons:

First, it is now so much more important for the Supreme Court to grant certiorari in Castro–and reverse the Third Circuit. * * * [U]nder Castro, the Executive Branch’s actions could theoretically be immune from such review, at least in Pennsylvania, New Jersey, and Delaware (okay, and in the U.S. Virgin Islands, too).

Second, with President Trump due later this week to announce his nominee for the Supreme Court seat vacated by Justice Scalia’s death, it is worth emphasizing that one of the judges on the rumored short-list–Judge Thomas Hardiman–was part of the Third Circuit’s ruling in Castro, and, indeed, joined the majority opinion “in full.” (He wrote separately to suggest a different ground on which to deny access to judicial review to the petitioners.) In my view, at least, endorsing such a doctrinally flawed, analytically problematic, and poorly reasoned opinion on such a major constitutional question comes close to being disqualifying in its own right. But at the very least, it should provoke questions from the Senate Judiciary Committee for Judge Hardiman (or any nominee, for that matter) about the proper role of the courts in supervising detention within the United States–and in standing up to Executive Branch actions that, at least based on precedent, certainly seem to be unconstitutional.

After all, if the past 36 hours are any indication, we’re going to need such judicial review quite a lot in the coming weeks, months, and <gulp> years.

Given this weekend’s dramatic developments, I’ll be surprised if Castro — authored by Chief Judge Smith and also joined by Judge Shwartz — doesn’t become a part of the public discussion about the impending nomination.

My prior posts on Castro are here and here.

“Penn State Law student lands dream-come-true federal clerkship”

The headline of this post is from a news item on Penn State News, link here, featuring Tom Brier, an upcoming clerk for Judge Thomas Vanaskie. It is surely the least cynical thing you will read all day, as this quote illustrates:

“In a lot of ways, this is the culmination of everything I worked for since I first met Judge Vanaskie,” Brier said. “To be here now, I definitely have butterflies, almost like before a basketball game in college, but I’m also incredibly excited at the same time.”

Judge Vanaskie is quoted too. Happy Friday.

UPDATE: Penn Law also released some upcoming-clerks news today: both winners of the school’s Keedy Cup moot court competition will be clerking for Third Circuit judges. Congratulations to Andrew D’Aversa (Scirica) and Aaseesh Polavarapu (Chagares). And one of the competition’s judges this year was Judge Patty Shwartz.

New opinion — Third Circuit reverses course in grand-jury-appeal jurisdiction case [updated]

In re: Grand Jury Matter #3 — criminal / jurisdictional — reversal — per curiam

This past October, a divided Third Circuit panel ruled in this case that it lacked jurisdiction to hear an appeal from grand jury evidentiary ruling because, while the appeal was pending, the grand jury indicted the defendant. (My post on the prior ruling is here.)

Today, the same Third Circuit panel granted rehearing, vacated its prior opinion, and now ruled that it did have jurisdiction because the grand jury investigation was continuing. On the merits, it held that the district court erred in admitting the evidence:

With jurisdiction, we turn to an important question
involving the limits of the exception to the confidentiality
normally afforded to attorney work product. It loses
protection from disclosure when it is used to further a fraud
(hence the carve-out is called the crime-fraud exception).
The District Court stripped an attorney’s work product of
confidentiality based on evidence suggesting only that the
client had thought about using that product to facilitate a
fraud, not that the client had actually done so. Because an
actual act to further the fraud is required before attorney work
product loses its confidentiality and we know of none here,
we reverse.

The panel remained McKee, Ambro, and Scirica. Counsel for the John Doe appellant was Scott Resnik of New York, with Mark Dubnoff for the government.

UPDATE: Keith Donoghue, an appellate-unit assistant federal defender in Philadelphia, has posted this helpful analysis of the opinion on the Federal Defender Third Circuit Blog.

Is the Federalist Society backing Gorsuch over Hardiman? [updated]

Crunch time is here, and Judge Thomas Hardiman is finding out who his friends are. Unless I’m very mistaken, he’s just found out who a prominent conservative opponent of his nomination is, too.

Last night, Jennifer Hansler wrote this ABC News story, headlined “Trump Supreme Court Adviser Praises Judge Neil Gorsuch as Potential Heir to Scalia’s Legacy,” featuring the following comments by Federalist Society leader Leonard Leo:

“He [Gorsuch] has very, very distinguished background,” Leo said. “He has probably 200 or so published opinions as an appeals clerk judge. They are extremely eloquently written, they’re incisive, understandable, clear, opinionated.”

The president values clarity and eloquence — qualities he admired in the late Justice Antonin Scalia — in his potential nominees, according to Leo.

“If you want to move the country’s jurisprudence in the right direction, you need people who are clear in their thinking and in their writing and who are going to be in the position to educate the broader legal community and the public at large about what’s at stake in these cases,” he said.

Among other traits Trump wants in a potential justice: someone who is “extraordinarily talented,” who is “going to be respected by all” and “who’s going to stick to his guns.”

Hardiman is nowhere mentioned. That alone is telling. But I read the substance of Leo’s comments, with their focus on eloquence and clarity and extraordinary talent, as a concerted effort to help Gorsuch’s prospects and hurt Hardiman’s [that is, to help Gorsuch’s prospects of being chosen over Hardiman].

If you thought Hardiman’s own long Federalist Society track record would keep its leaders at least neutral now, I’d say you were mistaken.

UPDATE: Two days after this post, on Saturday, Leo praised Hardiman to CNN:

“Tom Hardiman is an interesting mix of two worlds,” said Leonard Leo, an adviser to Trump on the Supreme Court search. “On the one hand he is very much in the mold of Justice Scalia, well-schooled on the doctrines of originalism and textualism, and he is very experienced. And yet, at the same time, Judge Hardiman hails from a family of relatively modest means, from an industrial working class city in Western Pennsylvania.”

 

A Politico story on Barry’s input on Trump’s nomination decision

Politico posted this story by Shane Goldmacher last night, entitled, “Trump’s sister weighs in on Supreme Court pick.” The story quotes one anonymous presidential advisor who said Judge Maryanne Trump Barry is “high on” Judge Thomas Hardiman and another who said it wouldn’t be fair to say that Barry is the only reason Hardiman has “juice on the list.” Neither fact is at all surprising.

From those quotes, Politico characterizes Barry as “a quiet but influential ally” of Hardiman’s nomination and mentions “the idea” that Barry “is among the president’s judicial counselors.” Neither characterization is clearly supported by the facts reported in the story.

I’m also quoted in the story. What I meant to give the reporter were boring observations that any two judges on the court work together regularly and that, if Judge Barry were supportive of Judge Hardiman then that could help explain why he’s apparently a finalist. I have no personal knowledge about Judge Barry’s role here or her view of Judge Hardiman, and I regret if my inartful quotes could be read to suggest otherwise.

In my view, there’s nothing remarkable about Trump soliciting Barry’s feedback about a judge sitting on the same court she does. Speaking with any of a judge’s colleagues should be a routine part of Supreme Court vetting. And it’s hardly a shock if Barry thinks highly of Hardiman, no doubt many judges do.

It’s all interesting to Third Circuit nerds, but I don’t think it’s big news. As Carrie Severino of Judicial Network says in the story, “If she wants to throw in ‘Tom Hardiman is a wonderful colleague,’ fine.”

Here’s why I think Hardiman is more likely than Gorsuch to be Trump’s Supreme Court nominee

The news coverage over the past 24 hours has annointed Tenth Circuit Judge Neil Gorsuch as the favorite to be nominated for the Supreme Court by President Trump. I’m skeptical.

Gorsuch is the walking embodiment of the mainline GOP legal establishment: D.C. politico parent, Harvard Law, Scotus clerkship, fancy firm, Justice Department, feeder judge, dazzling writing. When Trump looks at Gorsuch, I think he sees John Roberts and Brett Kavanaugh and Merrick Garland.

I think he sees the guy Jeb Bush would beg him to choose.

Jeff Sessions, Sean Spicer, Steve Bannon, Jared Kushner, Linda freaking McMahon — every one of them is a Johnny Cash middle finger to establishment D.C. Republicans. And now he’s going to pick their darling for the Supreme Court? Anything’s possible, but it seems unlikely to me.

Judge Thomas Hardiman fits Trump’s core us-against-them political narrative in a way Gorsuch never can. The Supreme Court is filled with Ivy League grads and glittering resumes. Hardiman? Just ability and rock-solid conservatism. No Oxford, no Ivy League law degree, no clerkship, no prestigious stable of Scotus clerks, and no rhetorical flash. President Jeb might never have given him a second look: perfect.

The mainstream media all seem to think Gorsuch is the front-runner today. But if the choice really does come down to Gorsuch or Hardiman, I’m betting on Hardiman.

Trump reportedly sought input from Barry on Supreme Court choice

Jess Bravin’s story posted tonight in the Wall Street Journal offers the first confirmation I’ve seen that Third Circuit Judge Maryann Trump Barry had a role in selecting President Trump’s Supreme Court nominee:

During his campaign, Mr. Trump turned to leaders of conservative organizations such as the Heritage Foundation and the Federalist Society to compile a list that ultimately numbered 21 candidates, including federal judges, state supreme court justices, and a U.S. senator. Since winning the election, he has continued to consult with leaders of those groups, and also sought advice from his sister, Judge Maryanne Trump Barry of the Third U.S. Circuit Court of Appeals in Philadelphia, the people close to the process said.

Hardiman is one of the two Scotus front-runners … or he isn’t

Politico reports:

President Donald Trump has narrowed his first Supreme Court nomination to three finalists, with 10th Circuit judge Neil Gorsuch and 3rd Circuit judge Thomas Hardiman emerging as front-runners while 11th Circuit Judge Bill Pryor remains in the running but fading, according to people familiar with the search process.

A Federalist Society leader approves:

“Under our Constitution, the power rests with the people, and that was at the core of Justice Scalia’s legacy, and you heard from President Trump’s inauguration that is the core of Trump’s agenda, and that’s very much the core of what Neil Gorsuch’s record is as a jurist,” Leo said. “He’s an excellent writer. He’s got sharp analytical ability, strong intellect and he’s got a lot of strength and courage. Those are things that the president very much wants in a nominee.”

“Hardiman,” Leo added, “shares many of the same qualities.”

Leo went on to say that Hardiman is “an extraordinarily talented and smart jurist” who has “a very direct and understandable writing style.”

Then there’s this:

As Gorsuch’s fortunes have risen, Pryor’s have dimmed. A 2006 George W. Bush appointee, Pryor is currently the subject of raging debate on an off-the-record group email list that includes many in the conservative legal and political communities, including many Republican Senate staffers, thanks to his decision to join the majority in Glenn v. Brumby, a 2011 opinion that protected transgender people from workplace discrimination.

“I think everybody on this list probably has something I’m not going to agree with. I think that decision with Pryor probably would be the one that would fall into that category,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a conservative legal organization.

John Malcolm, who oversees a legal center inside the Heritage Foundation, acknowledged that “Bill Pryor has been getting attacked from the right. Which is strange to me.”

Strange? Try bananarama.

Meanwhile, Adam Liptak of New York Times is reporting that Trump’s “2 Supreme Court Choices” don’t include Hardiman, naming Gorsuch and Pryor “The two leading contenders.” But then later in the story, which doesn’t even mention Hardiman:

The two were described as among the leading contenders by an administration official who spoke on the condition of anonymity to discuss internal White House planning.

Fun fact: a photo accompanying the NYT story shows Judge Gorsuch taking an oath, and the judge in the background of the photo is the wonderful Tenth Circuit judge I clerked for, David M. Ebel.

So either he is, or he isn’t.

UPDATE: There’s a heck of a barroom brawl going on among leading conservatives over whether Gorsuch is conservative enough. Here’s one side, Ed Whelan on National Review, with links to his adversary.

UPDATE 2: The New York Times story has been updated and now refers to three leading contenders including Hardiman, but still asserts that Gorsuch and Pryor “appear to be the most likely choices” contrary to what many other outlets are reporting about Pryor’s dimming prospects.

“This is the federal appellate court where Trump’s appointees could have the most immediate impact”

I’ve analyzed President’s Trump’s ability to impact the composition of the Third Circuit here and here. I wrote, “My best guess is that by 2018 the Third Circuit has 7 GOP-nominated judges and 7 Dem-nominated judges and that overall the court will be significantly more conservative-leaning than it is now.”

On Friday, Jonathan Adler posted this analysis on Volokh Conspiracy, headlined, “How President Trump will shape the federal courts.” He writes (emphasis added):

On the U.S. Circuit Courts of Appeal, there are currently 17 vacancies, with two more to come in February. Trump’s nominations for these spots will be significant, but they will not do much to alter the ideological balance on individual courts. Other than the U.S. Courts of Appeals for the 2nd and 3rd Circuits, Trump’s initial nominees will either expand Republican-appointed majorities or modestly bolster Republican-appointed minorities.

* * *

Third Circuit: Two vacancies. A third vacancy will be created on Feb. 1 when Judge D. Michael Fisher takes senior status. This is the federal appellate court where Trump’s appointees could have the most immediate impact. Among sitting judges there are seven Democratic nominees and five Republican nominees (including Fisher). If Trump is able to fill these vacancies, the 3rd Circuit will have an equal number of Democratic and Republican nominees.

So Adler’s math looks a lot like mine.

He also offers this interesting take (and reiterates it here):

For what it’s worth, I expect that the rate at which judges retire or take senior status will be affected by the caliber and qualifications of Trump’s initial judicial nominees. That is, sitting judges will feel more comfortable taking senior status and creating new vacancies if they feel confident that they will be replaced by qualified nominees. This may be particularly true for Republican appointees on the bench, insofar as we assume that judges prefer to be replaced by a president of the same party that appointed  them, but I expect the qualifications of Trump’s nominees will influence the decisions of Democratic appointees as well.

Hardiman reportedly a Trump finalist for Supreme Court nomination: news roundup [updated]

Multiple news outlets, including CBS News legal correspondent Jan Crawford, are reporting that President Trump has narrowed his search for a Supreme Court nominee to three or four candidates, one of them Third Circuit Judge Thomas Hardiman.

Naturally this has led to another flurry [make that a torrent] of Hardiman profiles.

The most substantive of them is by Amy Howe on Scotusblog, link here, and it warrants reading in full. She concludes that Hardiman is a “solid, although hardly knee-jerk, conservative who was active in Republican politics before joining the federal bench,” and notes, “During his nearly ten years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative,” although some of his rulings are “harder to pigeonhole.” Beyond analyzing his decisions, Howe also sheds some new biographical light:

Hardiman’s wife Lori, with whom he has three children, is from a well-connected Democratic family in Pennsylvania, but Hardiman registered to vote as a Republican in 1994. Hardiman has headed the local Big Brothers Big Sisters program, and he has also served as a “Big Brother” himself. A 2003 article in the Pittsburgh City Paper raised questions about Hardiman’s role in defending a challenge to a Ten Commandments plaque on public property, as well as his role in opposing housing discrimination cases. Hardiman is a fluent Spanish speaker who studied in Mexico; while living in Washington he worked with Ayuda, a legal aid clinic representing poor Spanish-speaking immigrants, on (among others) domestic violence and political asylum cases. During his Senate confirmation hearings, he described one of his immigration cases for Ayuda as “one of the most important cases I have ever handled.”

Meanwhile, CNN’s Ariane de Vogue writes:

Hardiman of the 3rd Circuit Court of Appeals, for example, is almost a decade younger at 51 and offers Trump a compelling personal story.
Hardiman hails from a blue collar family in Massachusetts and was the first in his family to graduate from college, driving a cab to help pay his bills. Hardiman is not product of the Ivy League having attended Notre Dame and Georgetown.
Those close to him think that Trump might appreciate Hardiman’s dry wit and the fact that while he is persuasive he doesn’t take over a room.
Like Sykes, Hardiman referred to Heller several times in a dissent he penned in 2013 in a case concerning gun licenses.
The opposition of Hardiman has been relatively muted and Ian Millhiser of the progressive Think Progress has written that he is “one of the more ideologically enigmatic names on Trump’s list.” Such a sentiment could scare away conservatives who do not want a dark horse candidate.
Conservatives believe that George H.W. Bush missed an opportunity to shape the court when he named a relative unknown — David Souter — to the bench. Rather than helping create a conservative legacy, Souter became a reliable vote for the left. Some might question whether Hardiman has a robust enough record to scour and get Republicans excited.
If Trump needed a personal reference, however, he’d only need to reach out to his sister, Judge Maryanne Trump Barry, who sits on the same appellate bench.

I think any Souter comparison is preposterous.

On The Daily Beast, Jay Michaelson has a post entitled, Trump’s Final Supreme Court Candidates Are All Arch Conservatives,” and he says this about Hardiman:

Like Pryor and Sykes, Judge Thomas Hardiman has a very narrow view of civil liberties. He affirmed a holding that there is no constitutional right to video record police officers. He wrote an opinion (affirmed by the Supreme Court) affirming the strip-searching of all arrestees in jail, even those there for minor traffic offenses. He would have allowed a Pennsylvania school district to bar students from wearing a bracelet saying “I ♥ Boobies” to raise awareness about breast cancer.

Still, compared with Pryor at least, Hardiman is a more conventional pick insofar as he hasn’t said outrageous things about hot-button social issues. Instead, progressives have had to read between the lines: Hardiman has spoken at several events hosted by the conservative Federalist Society, for example. Conservatives seem to love him.

In one high-profile case, he sided with the NFL over players who had not yet developed brain damage, but who wanted to be included in the NFL’s settlement in case they did later – but that case was about an actual football, not a political one.

Hardiman is thus a safer pick, if only because he has less of a record.

(The “seem to love him” link goes to one of my earlier posts about conservative reactions to Hardiman’s inclusion on the original shortlist.) Michaelson also writes:

[I]f there’s an endgame here, other than the nuclear option of eliminating the filibuster altogether, it will have to involve a consensus pick, someone in the mode of Anthony Kennedy or David Souter—a moderate Republican whose position on abortion (in many people’s minds, the only issue the Supreme Court faces) is unknown, but whose track record is reliably conservative without being extreme.

None of the five current candidates fit that bill.

‘Reliably conservative without being extreme,’ largely unknown position on abortion: that sure sounds like Hardiman to me.

White House press secretary Sean Spicer said yesterday that Trump would have “an update on a nominee” in “the next week or so.”

UPDATE: Josh Gerstein just added another take on Gorsuch, Pryor, and Hardiman at Politico, here.

UPDATE 2: Philly.com just posted this Hardiman profile by Chris Mondics and Mari Schaefer, quoting two prominent Schnader lawyers:

“I know him to be a very smart, hardworking, diligent judge,” said Nancy Winkelman, an appellate lawyer at Schnader Harrison Segal & Lewis.

Hardiman, a graduate of Notre Dame University and the Georgetown University Law Center, came from humble beginnings. Originally from Massachusetts, his father was a cab driver, and Hardiman also drove a cab to help pay for law school. He was the first person in his family to attend college.

After law school he worked for a short time at mega firm Skadden Arps before moving to Pittsburgh, where his wife is from. There he joined the firm of Reed Smith, another globe-straddling firm that specializes in representing corporate clients.

Paul Titus, a Pittsburgh-based lawyer for Schnader Harrison, long time friend of Hardiman’s and a former colleague, said Hardiman did substantial amounts of pro bono work while he was in private practice.

“If you look among circuit judges who are Republican in their 40s and 50s, it’s not surprising that his name would come up,” Titus said. “He is a very intelligent, careful and thoughtful lawyer. A very decent person.”

UPDATE 3: coverage of the nomination endgame is intensifying: Above the Law (another dazzling Lat effort), Wall Street Journal, Washington Post, Bloomberg, and Pittsburgh Post-Gazette (also excellent). H/t How Appealing. The latest stories say Raymond Kethledge is still in the hunt while Pryor continues to fade. Lat writes:

Who has the edge as between Judge Gorsuch and Judge Hardiman? That’s tough to tell based just on their records, and it will probably come down to how much they connected personally with the Donald.

Sounds right to me. [On second thought I think Gorsuch isn’t as likely as everyone thinks.]

New opinion — a big plaintiffs’ standing win in data-breach class action appeal

In re: Horizon Healthcare — class action — reversal — Jordan

The Third Circuit today ruled in favor of a putative class of data-theft victims who sued the company that their data was taken from. The introduction of the Court’s opinion:

The dispute at the bottom of this putative class action began when two laptops, containing sensitive personal information, were stolen from health insurer Horizon Healthcare Services, Inc. The four named Plaintiffs filed suit on behalf of themselves and other Horizon customers whose personal information was stored on those laptops. They allege willful and negligent violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., as well as numerous violations of state law. Essentially, they say that Horizon inadequately protected their personal information. The District Court dismissed the suit under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. According to the Court, none of the Plaintiffs had claimed a cognizable injury because, although their personal information had been stolen, none of them had adequately alleged that the information was actually used to their detriment.

We will vacate and remand. In light of the congressional decision to create a remedy for the unauthorized transfer of personal information, a violation of FCRA gives rise to an injury sufficient for Article III standing purposes. Even without evidence that the Plaintiffs’ information was in fact used improperly, the alleged disclosure of their personal information created a de facto injury. Accordingly, all of the Plaintiffs suffered a cognizable injury, and the Complaint should not have been dismissed under Rule 12(b)(1).

Joining Jordan was Vanaskie. Judge Shwartz concurred in the judgment based on her view that the plaintiffs’ loss of privacy, apart from any statutory violation, constitutes injury in fact. Arguing counsel were associate Erich Schork of Chicago for the plaintiffs and Kenneth Chernof, litigation co-chair of Arnold & Porter, for the company.

Third Circuit Bar presidency passes from Goldberger to Becker

Since new presidents are on everyone’s mind today, it’s a fitting day to note the change in leadership at the Third Circuit Bar Association.

This month Charles “Chip” Becker became 3CBA president. Becker is a partner at Kline & Specter, leading the firm’s post-trial and appellate litigation work. His father was legendary Third Circuit Judge Edward Becker, and he is a top appellate lawyer in his own right, playing a major role in recent years in litigation arising out of the antipsychotic drug Risperdal and the 2015 Amtrak derailment. One of his first tasks as president will be leading 3CBA’s support of the circuit’s judicial conference in April. Becker is a superb choice for 3CBA president and I look forward to seeing all he accomplishes.

Becker succeeds Peter Goldberger, who led 3CBA as president since 2014. Goldberger is the founder and principal of a three-lawyer firm in Ardmore, PA, focusing on appeals and post-conviction aspects of federal criminal cases nationwide. In 2015 Goldberger added to his extraordinary record of appellate accomplishment by successfully defending in the Third Circuit his post-conviction exoneration of Han Tak Lee. He is the 2015 recipient of the National Association of Criminal Defense Lawyers’ prestigious Robert C. Heeney Memorial Award and 2016 recipient of the Federal Criminal Law Committee for the Eastern District of Pennsylvania Clifford Scott Green Bill of Rights Award. The association has benefited tremendously from his fine leadership as president.

In our polarized age, there aren’t many folks who think the world of both our last US president and our next one. It’s good to remember today that 3CBA has been, and will continue to be, led so well.

New opinion: Third Circuit affirms dismissal of vehicle-shipping private antitrust suit

In re: Vehicle Carrier Services Antitrust Litig. — antitrust — affirmance — Shwartz

Offhand, I can’t recall ever before seeing a Third Circuit opinion with 95 lawyers listed in the caption. The caption fills the first 11-plus pages of the slip opinion. Holy cannoli, that’s a heap of billable hours to end up at “affirm.”

Broadly, this appeal arose out of a suit brought by auto-industry plaintiffs against vehicle-shipping companies alleging that the shippers colluded to keep up prices. The district court dismissed the suit and today the Third Circuit affirmed: “Because the ocean common carriers allegedly engaged in acts prohibited by the Shipping Act of 1984 … and the Act both precludes private plaintiffs from seeking relief under the federal antitrust laws for such conduct and preempts the state law claims under circumstances like those presented here, the District Court correctly dismissed the complaints.”

Joining Shwartz were Ambro and Fuentes. Arguing counsel were Richard Kilsheimer of New York and Warren Burns of Texas for the appellants, and Mark Nelson of Cleary Gottlieb in D.C., and former Rendell clerk Jason Leckerman of Ballard Spahr for the appellees.

UPDATE: the court issued an amended opinion on 1/26 correcting typos and formatting. I’ve updated the opinion link to go to the revised version.

New opinion — Third Circuit clarifies appellate immigration jurisdiction

Park v. AG — immigration — dismissal — Fuentes

South Korean citizen Sang Goo Park entered the US on a visitor’s visa, and the visa stated that he had been employed at an electronics company when in truth he was a cook. The discrepancy came to light some years later when Park filed an approved petition from his employer to adjust his status. In what seems like an insane misallocation of government resources, the government decided to deport him over this, and years upon years of litigation ensued.

The issue in today’s appeal is crisply summarized in the opinion’s introduction (cite omitted):

He now claims that, in the years since the removal order, he has become eligible for a “§ 212(i)” waiver of inadmissibility. He would like the Board of Immigration Appeals (“BIA” or “Board”) to reopen his removal proceedings so that he might apply for the waiver, but he faces an imposing obstacle. Because of the passage of time, his only route to reopening lies through 8 C.F.R. § 1003.2(a), commonly known as the “sua sponte” reopening provision. Under that regulation, the BIA may reopen a case at any time. The BIA has held, however, that it will do so only in extraordinary circumstances. As a result, the BIA’s discretion in this area is broad—so broad, in fact, that we have no meaningful way to review it, thereby depriving us of jurisdiction over orders denying sua sponte reopening.

Park’s petition invokes one of the limited exceptions to the rule against review. He argues, as he did before the agency, that the BIA has consistently reopened sua sponte for aliens like him who have become eligible for relief from removal after their cases have ended. By ruling consistently in this way, Park contends, the BIA has established a rule or “settled course of adjudication” that it is now bound to follow, or at least from which the BIA may not depart without explaining itself. Park also points to our two precedential opinions interpreting this “settled course” exception, Chehazeh v. Att’y Gen. and Cruz v. Att’y Gen., as weighing in favor of our ability to review the BIA’s decision.

Park’s petition gives us an opportunity to clarify our jurisprudence surrounding the “settled course” exception, which originated over a decade ago but has existed since without a framework. In part, this requires us to interpret Chehazeh and Cruz, which Park reads as being broader than they actually are (a mistake he is not alone in making).

The opinion noted that Third Circuit non-precedential opinons have applied the settled course exception inconsistently, sometimes suggesting that a bare allegation was enough to confer appellate jurisdiction. The court rejected that approach, holding that a petitioner seeking to invoke the exception must establish that the BIA limited its discretion through a settled course, and explaining that this showing must be such that the BIA’s ruling “can be meaningfully reviewed” and “must be persuasive enough to allow the reasonable inference that the BIA’s discretion has in fact been limited.” Applying this framework, the court held that Park’s showing failed and dismissed his petition.

Joining Fuentes were Ambro and Shwartz. Surprisingly, the case was decided without oral argument; petitioner’s counsel was David Kim of New York.

Alito, Chertoff among presenters at 2017 Judicial Conference

Registration is now open for the Third Circuit judicial conference, April 19 to 21 in Lancaster PA. The link to register is here.

The conference agenda also is out, link here. The keynote speaker will be Michael Chertoff, while Justice Alito will be back again to present the American Inns of Court Professionalism Award. Other highlights on the program include sessions on implicit bias, technology and rights (including Judge Hardiman and Orin Kerr), class actions (with a star-studded panel), and much more.

I’m particularly looking forward to the closing session, presented by the Third Circuit Bar Association, entitled What Attorneys Hope Judges Know and Vice Versa. The moderator is David Fine, and the panel is Judge Shwartz, District Judges Jones and Mannion, and top practitioners Charles Becker, Lisa Freeland, Dennis Suplee, and James Wade.

Early-bird registration is $425 for attorneys. After February 15 it goes up to $495, so tarry not!

Judge Jordan speaks on the administrative state

Third Circuit Judge Kent Jordan spoke this week at a program at the National Constitution Center as part of a panel on the Constitution and the Administrative State. Video of the panel is available on Youtube at this link. His fellow panelist is Ninth Circuit Judge William Fletcher, and it’s an interesting and often dazzling dialogue.

And provocative! After observing that “something has gone off the rails here in terms of the structure of government,” Judge Jordan dropped this at the 12:02 mark: “Well, the first thing I would do is politely escort Chevron to the door and say, ‘it’s been knowing you, don’t come back.'”

H/t Ilya Somin on Volokh Conspiracy.

Third Circuit will start posting oral argument video, but only for selected cases [updated]

The Third Circuit today entered an order amending the court’s internal operating procedures to allow for public posting of video recordings of oral arguments. (Chief Judge Smith telegraphed this move in November.) The amended IOP reads:

2.6 Posting of oral argument on the court’s website.
2.6.1 Audio recordings of all arguments will be posted on the court’s internet website unless the panel directs otherwise.
2.6.2 Counsel will be provided an opportunity, either before or after argument, to recommend or to object to the posting of video recordings of oral argument. If the panel is inclined to post a video recording, the clerk will inform counsel and direct counsel to submit any objections by close of business the next day.
2.6.3 While the Clerk will convey to the panel any suggestion from counsel or the public that video recordings be posted for public viewing, the decision on whether to post video recordings for public viewing is within the sole discretion of the panel. No opinion or order need be entered regarding a suggestion that video be posted.
2.6.4 If, after oral argument, and considering the views of counsel or the public if any, the panel unanimously agrees that an argument presents issues of significant interest to the Public, the Bar, or the Academic Community, the panel will direct that a video recording of the argument be posted for public viewing on the court’s internet website.

The key word here is “unanimously.” No video will be posted unless all three panel judges agree to it after the argument. That means any single panel judge can veto video posting in any case or in every case.

And implicit in the new procedure is the near-certainty that video will not be posted the same day as the argument. I expect that will reduce or even eliminate the newsworthiness of the videos that are posted, and perhaps that’s the point.

Howard Bashman posted this reaction on How Appealing:

Unlike the Ninth Circuit, which now posts video footage of essentially all of that Court’s oral arguments on YouTube, the Third Circuit has decided to determine whether video of an oral argument will be posted online on a case-by-case basis, which would seem to add unnecessarily to each oral argument panel’s workload. And, unlike the Ninth Circuit, which has for quite some time live-streamed oral argument video on YouTube, we will have to wait and see how soon after oral arguments the Third Circuit will be placing online the oral argument videos selected for posting.

I anticipate that the Third Circuit will someday move to the Ninth Circuit’s approach of posting videos of essentially all oral arguments online. Here’s hoping that day arrives sooner rather than later.

Howard’s concerns strike me as well-founded, but I’m more skeptical than he is that the court will end up adopting the Ninth Circuit’s approach.

Hat tip to How Appealing for the new procedure; I’m curious how Bashman found out about it because the change does not appear on the court’s announcements page [UPDATE: now it does].

UPDATE: the court just posted this interesting and informative press release shedding light on the origin and goals of the new policy.

New opinion — Third Circuit issues major ADEA ruling creating circuit split

Karlo v. Pittsburgh Glass Works, LLC — employment discrimination — partial reversal — Smith

The Age Discrimination in Employment Act protects employees who are 40 and older against age discrimination, and a plaintiff can prove an ADEA violation by showing that that the employer’s action had an age-based disparate impact.

But suppose the employer takes an action that disproportionately impacts only its oldest employees, not all over-40 employees. For example, imagine an employer has a round of layoffs where it terminates lots of its over-60 employees, but keeps enough of its age-40-to-60 employees that, overall, the impact on over-40 employees (i.e. all employees who fall within ADEA’s scope) is proportionate. Can proof of a disparate impact on only the over-60s — a ‘subgroup claim’ — state a valid ADEA age-discrimination claim?

Today, the Third Circuit answered that question in the affirmative. In so holding, it expressly split with the Second, Sixth, and Eighth Circuits, noting, “While we are generally reluctant to create circuit splits, we do so where a “compelling basis” exists.” It’s a tour de force opinion, thorough and clear and persuasive. An explicit circuit split on an important issue makes this a strong candidate for Supreme Court review, naturally.

The court also reversed the district court’s exclusion of a statistics expert under Daubert and FRE 702, summarizing the Daubert standard thus (cites omitted):

“The test of admissibility is not whether a particular scientific opinion has the best foundation, or even whether the opinion is supported by the best methodology or unassailable research.” Instead, the court looks to whether the expert’s testimony is supported by “good grounds.” The standard for reliability is “not that high.” It is “lower than the merits standard of correctness.”

Joining Smith were McKee and Restrepo. Arguing counsel were Samuel Cordes from Pittsburgh for the plaintiffs, David Becker from Chicago for the company, Neal Mollen of Paul Hastings as amicus US Chamber of Commerce supporting the company, and Anne Occhialino of the EEOC as amicus supporting the plaintiffs.

Third Circuit re-issues Mateo-Medina

After issuing a published opinion on December 30 and then mysteriously withdrawing it on January 3, the Third Circuit today issued a revised opinion in US v. Mateo-Medina, again remanding for resentencing on a finding that the district court committed plain error by relying in part on arrests that did not result in convictions.

It’s not immediately obvious to me exactly what changes the panel made to the previously-issued opinion, which no longer is on the court’s website for side-by-side comparison.

UPDATE: see D’s helpful comment with a link to the old opinion and identifying changes.

New opinion — habeas petitioners can’t establish miscarriage of justice without proving innocence

Coleman v. Superintendent — habeas corpus — affirmance — Hardiman

The Third Circuit today affirmed a denial of habeas corpus relief, holding that the petitioner failed to make a strong enough showing of a miscarriage of justice to excuse the untimeliness of his petition. The court rejected Coleman’s argument that he could satisfy the miscarriage-of-justice standard without proving his innocence.

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

New opinion — court blocks attempt to raise Alleyne challenge in 2241 petition

Gardner v. Warden — habeas corpus — affirmance — Hardiman

The Third Circuit today held that challenges to criminal sentences based on Alleyne v. United States must be brought under 28 USC 2255 and not 2241. The ruling followed a 2002 ruling by the court similarly blocking 2241 sentencing challenges based on Apprendi v. New Jersey. The court also refused to reach challenges to the prisoner’s other sentences under its concurrent-sentences doctrine, rejecting his argument that the special assessment he received for those convictions was sufficient to warrant review but noting that Third Circuit precedent “leaves some room to argue that other ‘adverse collateral consequences’ of multiple convictions may” support review.

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

Third Circuit vacates an opinion it published last week

In a terse order entered late this afternoon, the Third Circuit vacated the published opinion and judgment it entered on December 30 in U.S. v. Mateo-Medina. Today’s order was signed by the clerk and simply says it was entered “[a]t the direction of the Court.”

In the over two and a half years I’ve done this blog, this is the first time I’ve seen the court pull back a published opinion like this. So, this is not a normal development.

A commenter to my original post, PhilFan, offered this take:

Perhaps the panel/author published the opinion before the requisite number of full court review days passed?? Or perhaps someone miscounted and there are enough votes for rehearing??

Maybe so. But, offhand, I doubt that the first possibility, alone, would result in vacatur, and I think the second possibility would result in a different order.

Another possibility is that, after further reflection, the panel decided that there was a problem with the original decision that was serious enough to impact which side wins and clear enough not to see if the government sought rehearing.

We’ll just have to wait to see what the court does next. Among its options, it could call for additional briefing, set the appeal for oral argument (the original opinion was issued without argument), or issue a new panel opinion.

Hardiman reportedly one of handful of judges Trump is actively considering for Supreme Court seat

Two news outlets are reporting that Third Circuit Judge Thomas Hardiman is being actively considered by President-elect Donald Trump for nomination to the Supreme Court. I tend to think he is a longshot, only because his record seems less rigidly conservative and less aggressively ideological than those of the other leading candidates I’ve seen. But I hope I’m wrong about that, and it’s exciting to see a Third Circuit judge getting the attention that he — and the court as a whole — deserve.

Josh Gerstein of Politico reported today that Trump’s transition team has identified Hardiman as one of “about eight” who are leading contenders for the nomination.

This echoes comments by CBS chief legal correspondent Jan Crawford on Face the Nation on December 25:

CRAWFORD: Well, you know, Trump released a list before the election of — of potential nominees that he would consider. And my sources say he is sticking to that list. They have narrowed it down to just a handful of highly qualified, very respective — respected appellate court judges. I mean these are conservative legal rock stars. I mean this is not going to be a battle over qualifications. This will be a battle over ideology.

DICKERSON: Any top names — not to play this ridiculous game, but I’ll start it there (ph).

CRAWFORD: Yes. Yes. Yes, I mean I think — no, no, no, because this is ongoing right now. This is something, to Major’s point, they are going to move quickly on this. They’re — they’re narrowing their focus on a handful, like I said, of appellate court judges. Bill Pryor from the Atlanta based Federal Appeals Court. Thomas Hardiman, a judge on the Philadelphia based Appeals Court. Steve Colloton, from out in Iowa upon the U.S. Court of Appeals, the Eighth Circuit. A judge, Diane Sykes, on the Seventh Circuit. And Joan Larsen, on the Michigan Supreme Court. But, again, all highly qualified. You — you can’t argue with their credentials.

As I’ve written here and been quoted saying in a recent Hardiman media profile, I agree that Hardiman is a respected, qualified “conservative legal rock star[].”

Gerstein’s Politico article includes brief descriptions of each of the eight nominees named. For Hardiman, he writes:

Thomas Hardiman, 51
Judge, 3rd Circuit Court of Appeals

Hardiman spent about three years as a federal judge in Pittsburgh before being nominated to the 3rd Circuit in 2006. He’s one of the lesser-known judges still believed to be in active consideration for Trump’s first Supreme Court pick.

A 2007 ruling Hardiman wrote upheld the constitutionality strip searches of jail prisoners regardless of how minor an offense they were accused of. The Supreme Court later endorsed his decision, 5-4.

While Hardiman has backed First Amendment rights in the context of political donations, he took a narrower view in a 2010 suit over an arrest for videotaping a police officer during a traffic stop, holding that there was no clearly established First Amendment right to record such an event.

Hardiman won favor with gun rights advocates for a 2013 dissent that said New Jersey was violating the Second Amendment to the Constitution by requiring those seeking to carry a handgun to demonstrate a “justifiable need” for such a permit.

Trump may be able to get some special insights into Hardiman, since the president-elect’s sister, Judge Maryanne Trump Barry, serves on the same appeals court. Hardiman graduated from Notre Dame and went to law school at Georgetown. His fans have noted that he drove a taxi to support himself while earning his law degree.

As an aside, Hardiman’s fellow short-lister Joan Larsen was my wife’s con law professor at Michigan. Suffice to say she wasn’t my wife’s all-time favorite law professor.

A hat tip to Howard Bashman’s How Appealing for both reports.

New opinion — Third Circuit closes the year with a remarkable criminal-sentencing reversal [updated]

US v. Mateo-Medina — criminal — reversal — McKee

UPDATE 1/3/17: as discussed in the comments here, the court vacated this opinion today. Stay tuned.

UPDATE 1/9/17: revised opinion here, and the original opinion is no longer on the CA3 website.

The Third Circuit today reversed a criminal sentence under plain error review, holding that the district court plainly erred when it considered the defendant’s bare arrests (arrests that did not result in convictions) in deciding his sentence.

Two points bear noting.

First, the court reversed under plain error even though the district court did not explicitly say it was considering bare arrests in deciding the sentence. The district court said it could not overlook his rather extensive criminal history, and it noted his seven [actually six] arrests and two convictions. The court said the error was still plain because the court could not have thought the two convictions alone were a rather extensive criminal history. That makes sense as far as it goes, although offhand I’m not sure how comfortably it jibes with all the other ways sentencing judges consider conduct the defendant was never convicted of.

Second, the court emphasized that relying on bare arrests exacerbates the impact of implicit bias on sentences:

The Sentencing Project Report also remarked on recent research indicating that police are more likely to stop, and arrest, people of color due to implicit bias. Implicit bias, or stereotyping, consists of the unconscious assumptions that humans make about individuals, particularly in situations that require rapid decision-making, such as police encounters.32 “Extensive research has shown that in such situations the vast majority of Americans of all races implicitly associate black Americans with adjectives such as ‘dangerous,’ ‘aggressive,’ ‘violent,’ and ‘criminal.’”33 In addition, a recent empirical study analyzed thirteen years’ worth of data on race, socioeconomic factors, drug use, and drug arrests.34 The study found that African-Americans, Hispanics, and whites used drugs in roughly the same percentages, and in roughly the same ways.35 The study controlled for variables such as whether the participant lived in high-crime, gang-controlled areas. Despite those controls, the study concluded that “in early adulthood, race disparities in drug arrest[s] grew substantially; as early as age 22, African-Americans had 83% greater odds of a drug arrest than whites and at age 27 this disparity was 235%.”36 With respect to Hispanics, the study found that socioeconomic factors such as residing in an inner-city neighborhood accounted for much of the disparity in drug arrest rates.37

Pretty extraordinary.

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

 

New opinion — a significant Eleventh Amendment immunity reversal

Malandi v. Montclair State Univ. — civil — reversal — Krause

The Third Circuit today held that Montclair State University is an “arm of the state” and thus entitled to Eleventh Amendment immunity from federal suit. The opinion resolves a split among district courts in the circuit and gives a thorough review and application of the court’s Eleventh Amendment precedent applicable to state universities.

Joining Krause were Ambro and Thompson D-NJ by designation. Arguing counsel were Jennifer McGruther for New Jersey and Michael DiChiara of Krakower DiChiara for the appellees.

New opinion — Third Circuit affirms denial of Rule 11 sanctions

Moeck v. Pleasant Valley School Dist. — civil / sanctions — affirmance — Shwartz

The Third Circuit today affirmed a district court order denying a party’s motion for Rule 11 sanctions. The district court denied the school district’s sanctions motion as meritless and said the factual disputes raised in the sanctions motion should be resolved by summary judgment instead. The district argued that the court failed to analyze the merits, but the Third Circuit explained that no explanation is required when a Rule 11 motion is denied.

In a footnote, the court noted that “Rule 11 motions should conserve rather than misuse judicial resources,” and it also quoted prior authority that the Rule 11 standard is stringent

because sanctions 1) are in derogation of the general American policy of encouraging resort to the courts for peaceful resolution of disputes, 2) tend to spawn satellite litigation counter-productive to efficient disposition of cases, and 3) increase tensions among the litigating bar and between [the] bench and [the] bar.”

I can’t help wondering if these observations were included in this published opinion by a panel that included the current and immediate-past Chief Judges to further a conversation within the court about its recent notable decisions involving attorney sanctions and criticism. The case was submitted just 3 days ago.

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

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

Rodriguez v. AG — immigration — petition granted — Shwartz

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

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

 

US v. Robinson — criminal — partial affirmance — Roth

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

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

 

US v. Galati — criminal — affirmance — Roth

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

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

 

New opinion — disabled children over 17 don’t qualify for child tax credit

Polsky v. United States — tax — affirmance — per curiam

The Third Circuit today held that parents of disabled children over age 17 are not eligible for the child tax credit under 26 USC 24, only a dependent deduction.

The panel was Shwartz, Cowen, and Fuentes. The case was decided without argument. Published per curiam opinions are rare in the Third Circuit, and my guess is the reason it is per curiam is because the appellant parents were pro se.

Senator Menendez’s cert petition unloads on the Third Circuit

After the Third Circuit in July denied NJ Senator Robert Menendez’s effort to toss the criminal prosecution against him, it was hardly a surprise that Menendez would file a petition for certiorari.

But the tone of the petition the Senator filed this week (h/t How Appealing) is an eyebrow-raiser. It describes the Third Circuit’s reasoning as “nonsensical,” “an affront,” “[u]nsurprisingly … in conflict with this Court’s precedents,” “mak[ing] no sense,” “completely illogical,” “utterly perverse,” containing a “fundamental flaw” that is “all the more obvious,” “misguided,” and, finally, “inexcusable.”

Now, the petition was filed by top-caliber advocates — Abbe Lowell is counsel of record, Paul Clement and Viet Dinh also signed. And maybe cert will be granted.

But I’m mighty skeptical that dumping this avalanche of contemptuous adjectives and adverbs on the Third Circuit was the best way to go.

 

 

New opinion — court affirms government official’s bribery and extortion conviction

US v. Willis — criminal — affirmance — Fuentes

The Third Circuit today affirmed the conviction and sentence of a Virgin Islands official for bribery and extortion. The official argued in part that his conviction was invalid because the government failed to allege  a quid pro quo — the circuits have split over whether one is required. The court held that, if a quid pro quo is required, it was alleged adequately here. The court also rejected various fact-based challenges.

Joining Fuentes were Vanaskie and Restrepo. Arguing counsel were Jeffrey Molinaro of Miami for the appellant and Justin Weitz for the government.

New opinion — Third Circuit rules for plaintiff in USERRA suit

Carroll v. Delaware River Port Auth. — civil / employment-discrimination — remand — Fuentes

The federal Uniformed Services Employment and Reemployment Rights Act generally bars employment discrimination on the basis of military service. The Third Circuit today held that plaintiffs in failure-to-promote discrimination suits under USERRA need not plead or prove they were objectively qualified for the promotions. Defendants can assert lack of qualification as a non-discriminatory-justification defense.

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

Is the Third Circuit cracking down on lawyers? A look at the recent flurry of sanctions and criticism

It’s been a rough couple months for lawyers in the Third Circuit.

In June, the court in Roberts v. Ferman upheld a district court’s dismissal of a suit based on counsel’s failure to follow the required procedures for recreating gaps in the record. The published opinion contained harsh language directed at the lawyer, for example suggesting that “counsel should take the time to read” the applicable rule.

In September, the court in Hoffman v. Nordic Naturals [disclosure: I represented the appellant on rehearing] granted a FRAP 38 motion against counsel for damages for a frivolous appeal. The panel denied a motion to vacate the frivolous-appeal order even after six law professors filed an amicus brief arguing that the court’s appeal ruling was incorrect, and the court ordered counsel to pay attorney’s fees of $23,000.

In November, the court in Papp v. Fore-Kast Sales held that an appellee forfeited an alternative grounds for affirmance by raising it in a footnote and incorporating by reference its district court arguments.

And just this week the court in Marino v. Usher upheld a $28,000 sanction against a lawyer for his contact with an unrepresented party, after a different panel in June upheld a three-month suspension of the lawyer’s license for the same conduct.

These four decisions all follow in the wake of the court’s widely discussed 2015 opinion in Lehman Brothers v. Gateway Funding. There the court held that a party forfeited a claim because its lawyer failed to include a relevant transcript in the appellate record, describing the omission as “at best show[ing] a remarkable lack of diligence and at worse indicat[ing] an intent to deceive this Court.”

So what’s all this mean? Are these just normal, isolated rulings, or is something broader going on? Is the Third Circuit taking a harder line? I don’t believe that the judges all sat down one day and agreed to start dropping the hammer on lawyers. But my sense is that the landscape is shifting, so that the court today is less reticent than it used to be about criticizing and punishing lawyers whose work it disapproves of.

As a practical matter, rulings like these will make some non-appellate lawyers think twice about handling Third Circuit appeals on their own. Several of the lawyers who’ve gotten in trouble with the court recently appear to have had minimal prior federal appellate experience. And a couple of them had gotten unwanted media attention in the past for coloring outside the lines, like this and this. Lawyers who aren’t familiar with both the rules and the norms of federal appellate practice can unwittingly make serious mistakes.

As these cases show, the price for those mistakes can be stiff indeed.

 

 

The Great Published Opinion Drought of Late 2016

No published Third Circuit opinions again today. It’s now been two weeks and two days since the last one. What are Third Circuit junkies like us to do??

To tide us all over, here’s the intro to an interesting non-published opinion issued today in Marino v. Usher:

Songwriter Daniel Marino appeals the district court’s grant of summary judgment in favor of the defendants in his copyright infringement suit.1 The district court found that, because Marino had jointly created the song Club Girl, later developed into the derivative work Bad Girl and used by popular musician Usher, Marino’s infringement claims must fail. Marino’s attorney, Francis Malofiy, also appeals the district court’s order imposing sanctions against him in the amount of $28,266.54 for contacting an unrepresented defendant in the copyright suit, in violation of Rule 4.3 of the Pennsylvania Rules of Professional Conduct. For the reasons that follow, we will affirm both orders.

3CBA summarizes the appellate-rules changes

Peter Goldberger, President of the Third Circuit Bar Association, has summarized for 3CBA members the changes to the federal appellate rules that went into effect last week. It’s a tremendously helpful overview, and he’s generously given permission to post it here.

(If there’s a better legal-practice bargain than 3CBA’s $40-a-year dues, I don’t know of it.)

Goldberger writes:

Effective December 1, 2016, two important changes in the Federal Rules of Appellate Procedure went into effect, which I wanted to be sure you knew about.  First, the rule has changed by which the time periods are measured for responding to certain filings by another party.  Second, the word-limits for briefs, motions and some other filings have changed.  In addition, the Third Circuit has recently changed its electronic-filing rule as regards the Appendix to briefs.  Finally, some clerk’s office fees have increased. The details of these changes can be found in recent notices posted at the Court’s official website under the heading “News & Announcements.”  This email provides the highlights:

  1. All of us have grown familiar with the time-counting rule under which 3 days were added to the time otherwise set for responding to a document, such as a brief or motion, that was not hand-delivered to us, whenever by rule or order that time period was to be measured from “service” of that document.  This additional allowance was based on the typical time that it was understood it takes for first-class mail to be delivered. As of December 1, the federal appellate rule is amended (in parallel with changes in the civil and criminal rules) to treat electronically filed documents as if they had been hand-delivered; that is, three days will no longer be added to the time to respond to motions and briefs that are served through the court’s electronic filing system.  Since this effectively shortens the time for responding in many instances, it is important to be aware and plan accordingly.
  1. As of December 1, the allowable length of briefs and certain other documents, as measured by word-count, has been reduced.  Most notably, the permissible length of a principal brief is reduced from 14,000 words to 13,000 words, and for reply briefs from 7000 words to 6500 words.  The allow­able length of a petition for mandamus changes to 7800 words. An amicus brief is limited to ½ of the size of a principal brief. For a motion or response to a motion, the limit is 5200 words (or 20 pages). (This will sometimes be an increase over the previous rule.)  Rehearing petitions will now have a 3900-word limit.  As mentioned, there are other details in the Court’s notice.

Notably, unlike some other Circuits, the Third Circuit has neither opted out of any of the national changes, nor will it alter its existing practice or standards for judicial review of motions to exceed these new and reduced word limits.

The revised limits apply to pending cases, except that where the appellant’s opening brief was filed prior to December 1, the new limits do not apply to the appellee’s brief or appellant’s reply.

  1. The Court has also rescinded the previously-available option (“Option B”) of filing the appendix entirely on paper, and not via ECF.  All appendices must now be filed electronically.
  1. Certain of the Clerk’s fees for services have increased as of 12/1/16. Notably, the list of changes does not include the filing and docketing fees for appeals and petitions.

Most of these changes will be discussed in more detail in the 3CBA’s forthcoming newsletter.  As always, the Board thanks you for your membership and participation in our Association.

Supreme Court grants cert in to review Third Circuit religious-hospital ERISA case

The Supreme Court today granted certiorari to review a Third Circuit case. In Kaplan v. St. Peter’s Healthcare System, the Third Circuit a year ago ruled against a Catholic hospital in an employee-retirement-plan appeal. The Third Circuit ruled that, although a certain ERISA exemption would apply to a retirement plan established by a church and then maintained by a church agency, it did not apply to plans established by a church agency. I wrote at the time, “A phalanx of amici appeared on both sides and the opinion notes that a Seventh Circuit case involving the same issue is pending now, so I doubt this fight is over yet.”

Sure enough, today the Supreme Court granted cert, consolidating the case with the Seventh Circuit case plus a Ninth Circuit case. The petitioners are represented by Arnold & Porter Supreme Court powerhouse Lisa Blatt.

Media round-up

Several Third Circuit cases have been in the news lately.

Challengers to the NFL concussion-litigation settlement upheld by the Third Circuit this past spring have asked the Supreme Court to grant certiorari. The case is distributed for the Supreme Court’s December 9 conference. NFLconcussionlitigation.com discusses and links to the amicus filings here. Alison Frankel of Reuters has this interesting report headlined, “SCOTUS hasn’t looked at class action settlement in 17 years. Time to revisit?” Frankel reports that the challengers’ petition slams the Third Circuit ruling as “a blueprint for circumventing Amchem and Ortiz,” and their counsel of record, Supreme Court specialist Deepak Gupta, is quoted saying, “The 3rd Circuit has drifted away from Amchem.”

Another cert petition in the news is the challenge to the Third Circuit’s en banc ruling in the sports-betting case. John Brennan has this helpful summary on his Meadowlands Matters blog at NorthJersey.com. Five states have taken NJ’s side as amicus.

In a case in which I was retained to seek rehearing after I criticized the panel opinion here, Jeannie O’Sullivan has this article on Law360.com reporting that in Hoffman v. Nordic Naturals the court denied rehearing and denied the request to vacate the order granting sanctions against him.

Finally, there has been a fair bit of discussion of In re: Energy Future Holdings Corp, the bankruptcy reversal issued earlier this month.  Coverage and commentary by Wall Street Journal, JDSupraDavis Polk (criticizing), Jones Day (“highly-anticipated ruling”), Law360, and abi.com, among many others.

 

 

 

CA3blog named to 2016 ABA Blawg 100

Blawg 100

 

 

 

 

 

 

 

The ABA announced today that they picked CA3blog for this year’s Blawg 100. The ABA Journal article announcing the winners says the ABA has over 4,000 legal blogs in its directory, so being named to their latest list of 100 is pretty cool. (Mystifying, even.)

A few of the more distinguished honorees this year are Lyle Denniston Law News, Bryan Garner’s LawProseEmpirical Scotus, and Alison Frankel’s On the Case. Oh, and Golf Dispute Resolution, again.

New opinion — failure-to-warn contractors can invoke govnerment-contractor defense, and parties can’t incorporate by reference

Papp v. Fore-Kast Sales Co. — civil — reversal — Jordan

The Third Circuit today reversed a district court decision that remanded a removed case to state court. The court held that the federal-officer removal statute extends to contractors who possess a colorable defense and that the contractor met that standard here. In practice, that means that the court extended the government-contractor defense to failure-to-warn cases. The court rejected the district court’s view that, to invoke the removal statute in a failure-to-warn suit, the defendant-contractor had to show that a federal officer directly prohibited the contractor from warning third parties. The opinion relied heavily on the court’s 2015 ruling in Defender Ass’n of Phila.

Today’s opinion contains an important appellate-practice holding. The court ruled that the appellee had forfeited an alternative basis for affirmance that it raised only in a two-sentence footnote describing the issue as fully briefed below. Allowing parties to preserve arguments through incorporation by reference would nullify the word limits, the court said, and “[t]hat cannot be permitted.” I’m no fan of incorporation by reference, but offhand I would have thought appellees could get away with it due to the rule that the court could affirm on any ground supported by the record.

Joining Jordan were Vanaskie and Krause. Arguing counsel were Martin Gaynor III of Boston for the contractor and Jeffrey Blumstein of Szaferman Lakind for the appellee.

New opinion — no jurisdiction to hear opt-in plaintiffs’ challenge to FLSA decertification

Halle v. West Penn Allegheny Health Sys. — civil — dismissal — Smith

Hospital employees sued a hospital under the Fair Labor Standards Act for failing to pay them for work during meal breaks. They sought to proceed as an FLSA collective action (analogous to a class action) on behalf of similarly situated employees, but the district court decertified the collective action on the ground that the claimants were not similarly situated. In a prior appeal, the Third Circuit dismissed for lack of appellate jurisdiction, ruling that a decertification order is not appealable and a voluntary dismissal does not make it so. Employees filed a new suit, in which the district court denied collective-active certification on issue preclusion grounds.

The present appeal was brought by employees who tried to opt into the successor suit. The Third Circuit began by detailing what an FLSA collective action is, how it works, and how it differs from a class action, including an affirmative opt-in requirement. After this lucid overview, the opinion sua sponte held that it lacked jurisdiction over the appeal because the appellants’ claims were dismissed without prejudice and thus have no appealable final order. The court rejected the employees argument that it should hear the appeal because the defendants picked off the original plaintiff.

Joining Smith were Ambro and Fisher. Arguing counsel were Nelson Thomas of NY for the employees and David Fryman of Ballard Spahr for the hospital.

“GM Battles Shippers on Price-Fixing in 3rd Circuit”

The title of this post is the headline of a story by Nick Rummell on Courthousenews.com covering a Third Circuit oral argument that took place in a special Newark seating this morning. According to the article, the appeal arises from a suit brought by automakers alleging price-fixing by international vehicle-transport shippers. The panel was Ambro, Shwartz, and Fuentes.

 

New opinions — employment and bankruptcy

FOP Lodge 1 v. City of Camden — employment discrimination — reversal in part — McKee

Camden, NJ, adopted a policing policy they called “directed patrols,” which required officers to make brief passes through specific areas. During these passes officers were to interact with community members and try to get their names and addresses. The local police union filed suit, arguing the policy violated NJ state law barring policing quotas, that officers suffered retaliation for not complying with and protesting against it, and other claims. The district court dismissed on all counts. Today, the Third Circuit affirmed on all grounds except for claims brought under NJ’s employee-whistleblower statute, on which it reversed and remanded.

Joining McKee were Ambro and Scirica. Arguing counsel were Gregg Zeff for the police union and John Eastlack Jr. of Weir & Partners for the city.

 

In re: Energy Future Holdings Corp. — bankruptcy — reversal — Ambro

The introduction to this opinion reads:

We address what happens when one provision of an indenture for money loaned provides that the debt is accelerated if the debtor files for bankruptcy and while in bankruptcy it opts to redeem that debt when another indenture provision provides for a redemption premium. Does the premium, meant to give the lenders the interest yield they expect, fall away because the full principal amount is now due and the noteholders are barred from rescinding the acceleration of debt? We hold no.

A confession: I haven’t the foggiest what that means.

Joining Ambro were Smith and Fisher. Arguing counsel, bankruptcy specialists all, were Philip Anker of Wilmer Cutler for one appellant, Gregory Horowitz (a Stapleton clerk) of Kramer Levin for other appellants, and Andrew McGaan of Kirkland & Ellis for the appellees.

Attorney who lost Third Circuit fight for hard-line anti-immigrant law joins Trump transition team and is mentioned as top AG candidate

The Wilkes Barre Citizens’ Voice has a story today by Kent Jackson headlined, “Attorney with Hazleton ties joins Trump’s transition committee.” It begins:

An attorney who helped Hazleton write and defend its immigration act 10 years ago is now helping Donald Trump with his transition to the presidency.

Kris Kobach, the secretary of state in Kansas, joined the president-elect’s transition committee and has been mentioned as possible nominee for United States Attorney General or director of the Department Homeland Security in the Trump administration.

And it says this about the Third Circuit appeal in Lozano v. City of Hazleton:

The law would have penalized landlords for renting residences to immigrants who lacked legal status to live in the country. Employers also faced sanctions if they hired immigrants who weren’t authorized to work in the United States.

Kobach helped the city revise the law to provide due process to immigrants, landlords and employers and to meet other constitutional standards.

Immigrants living and working in Hazleton challenged the law with assistance from the American Civil Liberties Union and LatinoJustice PRLDEF.

After a trial in U.S. District Court in Scranton, Federal Judge James Munley ruled the law unconstitutional in 2007 and said the federal government, not cities, sets immigration law.

The Third Circuit Court of Appeals in Philadelphia upheld the ruling twice after the U.S. Supreme Court ordered the judges to reconsider the case in view of its decision regarding an immigration law in Arizona.

More news coverage of Kobach as a possible AG is here, with a critical profile on Vice.com here and a critical report on his work in the Third Circuit and elsewhere by Southern Poverty Law Center here.

UPDATE: here is a link to the audio of the hour-plus first oral argument in Lozano. Here is the second (post-Scotus remand), two-hour plus, argument — jump to the 9:30 mark, and it continues here. Kobach goes first both times.

New opinion — Voiding union contracts in budget crisis violated Contract Clause

United Steel Paper & Forestry Rubber Manu. Allied Ind. & Svc. Workers Int’l Union AFL-CIO-CLC v. Gov’t Virgin Is. — labor — reversal — Fisher

The introduction of yesterday’s opinion is a model of concision and clarity:

In 2011, the Virgin Islands faced a severe budget crisis as a result of the economic recession. In response to this crisis, the Government of the Virgin Islands enacted the Virgin Islands Economic Stability Act of 2011 (“VIESA”), 2011 V.I. Sess. Laws 84, which reduced most Government employees’ salaries by 8%. Many of the Government employees, however, were covered by collective bargaining agreements negotiated on their behalf by their representative unions. The collective bargaining agreements, agreed to and signed by the Governor on behalf of the Government, set forth detailed salary and benefit schedules to be paid to covered Government employees.

The unions brought suit alleging that the salary reductions in VIESA constituted an impermissible impairment of the collective bargaining agreements, in violation of the Contract Clause of the United States Constitution. The District Court, after a bench trial, held that VIESA did not violate the Contract Clause. We will reverse.

The court rejected the government’s mootness argument, finding the ‘evading review’ exception inapplicable but ruling that the challenged law’s continuing collateral consequences preclude mootness. On the merits, the court ruled that VIESA violated the Contract Clause because it was unreasonable: the government knew about the financial crisis when it negotiated the contracts it later voided, and it promised the unions it could pay the contract rates in exchange for other concessions. Said the court, “The Contract Clause is not toothless.”

Joining Fisher were Krause and Roth. Arguing counsel were Nathan Kilbert for the unions and Samuel Walker for the government.

UPDATE: News coverage in the St. Thomas Source is here.

Third Circuit simplifies appendix procedure

The Third Circuit yesterday issued this order eliminating the option of filing an appendix in hard-copy form only (emphasis added):

In order to assist attorneys in adapting to electronic filing, the Clerk’s Order of March 17, 2009 created an alternative option for filing the appendix. Option B permitted the filing of the appendix in paper form only, provided that additional citations to the district court record were used in the brief. It appearing that so few attorneys use Option B that it is no longer necessary, at the direction of the Court the Clerk’s Order of March 17, 2009 is hereby vacated. All attorneys and all pro se litigants who file electronically must file the full appendix in electronic form. Four paper copies of the appendix must be filed with the court. Service by alternate means must be made on all parties who are not CM/ECF Filing Users. L.A.R. 31.1(d) and L.A.R. Misc. 112.4(a). Indigent litigants are referred to L.A.R. 30.2 for motions to proceed on the original record. Attorneys should contact the CM/ECF help desk to resolve problems with electronic filing.

Howard Bashman has posted about the change on How Appealing, agreeing that Option B was rarely used and predicting few will miss it. I agree.

Will the Third Circuit start posting oral-argument video? Highlights from the Third Circuit’s Judges and Journalists program

Yesterday the Third Circuit hosted a day-long dialogue in Philadelphia about media coverage of the federal courts called Judges and Journalists. I was there all day and had the honor of presenting on one of the panels. It was a fantastic event.

The judicial turnout was strong. Chief Judge Smith and Judges Krause and Roth were there all day, and Judges McKee and Chagares were there too, along with a bevy of district-court and state-court judges. (I sat next to a judge who worked on a David Bowie sewing project all morning.)

Oral argument video

The Ninth Circuit posts videos of its oral arguments on youtube. Yesterday an attendee asked why the Third Circuit doesn’t do that, too. Chief Judge Smith responded, “Stay tuned.” Pressed by the moderator what that meant, the Chief gave a friendly no-comment. I then pointed out that the Third Circuit website already makes it easy to access audio of oral arguments. Chief Judge Smith responded, “Thank you, Matthew — but stay tuned.” Make of that what you will.

Linda Greenhouse’s keynote

New York Times legal columnist Linda Greenhouse gave the lunchtime keynote, introduced by Chief Judge Smith who described her as “truly a major figure in the law.” Her theme: judges and journalists are “in the same serious business,” both doing their best to make sure the public has an understanding of the law. When the courts and media find ways to work together in this common enterprise, she said, “everybody wins.”

Greenhouse described a Ninth Circuit judge’s shock when he learned that she’d had lunch with Justice Breyer; she said she decided to shock him some more by telling him Breyer had the Supreme Court press to lunch every year. And Chief Justice Burger held regular lunches with the Supreme Court reporters, a practice that Chief Justices Rehnquist and Roberts continued. The lunches are nuts-and-bolts conversations about what reporters need, what is the best thing the Court could do for them, etc. Greenhouse said that two recent changes — identifying individual Justices in the argument transcripts, and posting those transcripts the same day as the argument — both resulted from those lunches.

No surprise: Greenhouse is an avid How Appealing reader. When I was introduced to her before her talk as the author of this blog, she said to me something to the effect of, “Oh, yes. That’s one that Howard Bashman frequently links to, isn’t it?”

Some other highlights

  • Both Chief Judge Smith and Judge McKee expressed dismay at how circuit judges are painted as political partisans. Smith (who described himself as a “news junkie”) said a pet peeve of his was when articles identify which judges were nominated by Democratic or Republican presidents, which he said serves only to imply that the decision was ideologically or politically driven. Smith said McKee was one of his very best friends, and he noted they agree on 95 percent of their cases.
  • Smith and McKee (both former trial judges) also agree about how hard criminal sentencing is. McKee said its the “hardest thing judges do and number two is not even close.” Smith noted that people say ‘lock ’em up and throw away the key,’ but “people have no idea how really difficult sentencing is,” and there is “no more excruciating experience than sentencing a person.”
  • New York Times assistant general counsel David McCraw discussed his recent viral letter responding to Donald Trump’s threat to sue the Times for libel for reporting two women’s accusations that Trump had touched them sexually without their consent. He said his career flashed before his eyes when he saw the Times’s CEO coming for him just after the letter was published, but the (British) CEO just said, “Brilliant, brilliant. But I’ll never understand why you Americans capitalize after colons.” He also movingly described a letter he received from Martin Luther King Jr.’s lawyer on how much it meant for the Times to stand up, then and now.

Congratulations to the main organizers — Judges Krause and Rendell, Circuit Executive Margaret Wiegand, and Chris Satullo — for a first-rate event.

“False witness: US judge tackles mistaken identifications”

The title of this post is the headline of an Associated Press story Sunday by Maryclaire Dale. The subject of the article is the eyewitness-identification task force the Third Circuit established in September, and the wrongful capital conviction that led to it.

Judge McKee, who the article describes as having formed the task force, has this quote:

“Just because they (witnesses) are unequivocal, doesn’t mean they’re right,” said McKee, who just finished a term as chief judge of the 3rd U.S. Circuit Court of Appeals in Philadelphia. “The law has not kept up with the science.”

“Trump’s Federal Judges in Pa. May Break With Centrist Tradition”

The title of this post is the headline of an article by P.J. D’Annunzio in Thursday’s Legal Intelligencer. It includes this none-too-controversial observation: “Observers speculate that Trump will appoint more conservative judges—especially in the U.S. Court of Appeals for the Third Circuit—than his predecessor, President Barack Obama….”

The article notes that Pa. Senator Toomey is “especially unlikely to budge” on Rebecca Haywood’s nomination, and it features an interesting look at whether the blue-slip power will give fellow Pa. Senator Casey some leverage over Trump’s Third Circuit nominations. (I tilted at both of these windmills earlier this week.)

Well worth a read.

Morning Call profile of Judge Hardiman

Peter Hall of the Allentown Morning Call has this article profiling Third Circuit Judge Thomas Hardiman. It’s a fine article with an odd headline, “Trump judge sided with Easton school district in ‘boobies’ case.” Of course, ‘Trump judge’ refers to the fact that Hardiman was one of 21 judges President-elect Donald Trump listed as possible Supreme Court nominees.

The article quotes former Hardiman clerk Richard Heppner (now an associate in the appellate group at Reed Smith), who described the judge as friendly, thoughtful, and pleasant, and who described how the judge encouraged his clerks to go jogging with him.

It also quotes Howard Bashman observing that, while Hardiman would be a good conservative choice for the Supreme Court, two facts weigh against him: he’s not a state judge and he serves on the same court that Justice Alito came from. By contrast, I’m quoted saying Judge Hardiman is “exactly the kind of judge conservatives are looking for for the Supreme Court.” It’s a safe bet that Bashman’s closer to the mark.

 

The Senate should confirm Obama’s Third Circuit nominee. No, really.

Elections have consequences. Presidents get to pick the judicial nominees, and if they’re qualified it’s the Senate’s job to confirm them. I’ve hammered Republicans over this many times here. When Senators block qualified, mainstream, honorable judicial nominees, it hobbles our courts and it poisons our democracy.

Donald Trump won. The Third Circuit, like federal courts around the country, has vacant judgeships it urgently needs filled. If Trump chooses to fill those empty seats with staunch conservatives, he can.

For our government to work right, Democratic senators should not use their blue-slip power to block qualified conservative circuit nominees, they shouldn’t launch overheated public campaigns attacking them, and they should not vote against confirming them. And qualified doesn’t mean centrist.

Senate Democrats should do for Trump what they did for the second President Bush: confirm Third Circuit nominees who are rock-solid conservatives. The Senate confirmed Judge Hardiman by a vote of 95-0. It confirmed Judge Jordan 91-0. It confirmed Judge Chagares 98-0. It confirmed Judge Fisher, a recent Republican candidate for governor, by unanimous voice vote. After Fisher’s confirmation, liberal then-Governor Ed Rendell said, “This is the way the process should work. It wasn’t viewed as a partisan thing. It was viewed as getting a very qualified person onto a very important court.”

That is how it’s supposed to work, and it’s how it should work over the next four years, too. Many think Trump is uniquely unfit to be president (and I do too), but that is quite irrelevant to whether his judicial nominees are qualified.

But here’s the problem.

Senate Republicans have spent the past two years breaking those rules, blocking President Obama’s qualified judicial nominees to a historic degree. As Russell Wheeler of Brookings has painstakingly documented here and here, Senate Republicans “veered from the precedents created by recent similarly situated Senates.”

Here in the Third Circuit, that meant Judge Sloviter’s seat took two and a half years to fill. Worse, Judge Rendell’s seat has sat empty since July 2015 and Judge Fuentes’s seat since July of this year. Those were President Obama’s judgeships to fill.

So what do Senate Democrats do now? If they play by rules the Republicans spent the last two years thumbing their noses at, wouldn’t Democrats be unilaterally disarming? Of course they would. Pragmatic Democratic leaders will say Republicans changed the rules, so now we’ll play by their rules. Any other approach would make them chumps.

So Democrats will do all they can to continue the obstruction, and our judiciary and our democracy are weakened some more.

There’s a solution. If Republicans want Democrats to play by the old rules for the next four years — and they should — then Republicans should hurry up and play by the old rules now.

For the Third Circuit, that means Senate Republicans should confirm Rebecca Haywood now. She’s an exceptional lawyer and superbly qualified. I’ve seen nothing to suggest she’s even particularly liberal — as a career Assistant US Attorney, she’d likely slot into the court’s moderate center alongside Chief Judge Smith and Judges Greenaway, Vanaskie, and Shwartz. And confirming her would still leave an open seat for Trump to fill, with another (Judge Fisher’s) likely soon to come. Maybe more.

Confirm Haywood now, and other qualified nominees like her, and then fill the courts with qualified Trump nominees in the years ahead. Following the rules now would benefit the federal courts, the nation — and Republicans.

What the 2016 presidential election means for the Third Circuit: take two

Back in September I wrote:

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency [CORRECTION: he became eligible in 2014]. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.

When I wrote all that, I expected Hillary Clinton to win the election. Now that Donald Trump has won, let’s take another look.

There are two open seats on the court. My guess is that Judge Fisher will now take senior status, which would create a third opening. It remains to be seen what Judges McKee and Ambro will do, but my guess is they will remain active. So I expect Trump to get three seats to fill right away.

What kind of judge will Trump nominate? His Supreme Court short-lists were pleasing to conservatives, so it’s a reasonable bet that his nominees will be in the mold of Justice Alito, but I don’t think anyone really knows.

It’s also is hard to say whether Democrats will have any meaningful leverage over who gets nominated or confirmed. The nuclear option did away with filibusters for circuit nominees. Democratic Senators (one in PA, two in NJ, two in DE) may keep their blue-slip power to block home-state nominations from going forward, but I don’t feel confident about that. [Update: Although the Senate Judiciary chair said last year he was committed to the blue-slip procedure.]

As I’ve noted, only two of the Third Circuit’s 13 active judges are women, the worst gender disparity of any circuit court. A Clinton presidency seemed certain to reduce that imbalance: a Trump presidency, much less so.

My best guess is that by 2018 the Third Circuit has 7 GOP-nominated judges and 7 Dem-nominated judges and that overall the court will be significantly more conservative-leaning than it is now.

If the court wouldn’t have let you present it, it’s not something you could reasonably have presented

The Third Circuit issued a non-precedential opinion in US v. Scott yesterday, affirming denial of a post-conviction challenge to a criminal conviction, and, respectfully, I think it’s wrong.

From the opinion (I’ve omitted most cites and footnotes from these quotes):

[Scott] argues that the trial court erred in not allowing him to withdraw his plea. This argument relies on Scott’s belief that he withdrew the plea before it was formally accepted by the trial court. Because Scott believes he withdrew the plea before it was accepted, he argues that, under Federal Rule of Criminal Procedure 11, he should have been allowed to withdraw it “for any reason or no reason.” Scott also believes that he is not estopped from bringing this claim because Martino’s testimony constitutes new evidence, obtained after direct appeal, which resolves the factual issue of when he moved to withdraw the plea.

Here’s the controlling rule:

Generally, a § 2255 proceeding may not be used to relitigate questions that were raised and considered on direct appeal.  We have held, however, that relitigation may be allowed for “newly discovered evidence that could not reasonably have been presented at the original [appeal]”

Here’s the issue:

On direct appeal, Scott argued that the trial court abused its discretion because it accepted the plea after Scott requested to withdraw it. In support of this assertion, Scott cited transcript excerpts of the August 15, 2008 on-the-record conference. The statements made at this conference, however, did not support his asserted timeline of events—rather, they depict the trial court as accepting the plea before Scott’s counsel makes any comments regarding withdrawal. Given this record, we concluded that there was no basis to conclude that the trial court erred in accepting the plea.

Now, Scott argues that relitigation is appropriate because he presents new evidence discovered after his direct appeal—namely, [trial counsel] Martino’s testimony regarding the off-the-record conference in which Martino made an oral motion to withdraw the plea. Scott argues that this new evidence provides the factual predicate for his plea-withdrawal claim that was not available to him previously.

Based on Martino’s testimony, we agree that Martino orally moved to withdraw the plea before it was accepted by the trial court.

So Scott wins? No, and here’s where things gets weird:

[E]vidence of the off-the-record conference is new, material to Scott’s instant claim, and directly relevant to our disposition of his claims on direct appeal. But that the evidence has these characteristics, is not to say that relitigation is appropriate. We must also conclude that the evidence “could not reasonably have been presented at the original trial,” or for our purposes, on direct appeal.

We conclude that Scott cannot show that he could not reasonably have presented this evidence on direct appeal. First, there is evidence that Scott had personal knowledge of the off-the-record conference and Martino’s oral motion to withdraw the plea even though he was not present. On direct appeal (where he was represented by different counsel), Scott stated that “the plea was accepted in chambers without the presence of the Defendant and after Defendant’s counsel had orally moved to withdraw the plea.” Brief of Appellant at 17, Scott, 434 F. App’x 103 (No. 09-2576). That Scott made this assertion suggests that he had some knowledge that the oral motion to withdraw the plea was made.

Further, given that the record strongly suggests that Scott had knowledge of this purportedly new evidence, his failure to even attempt to present it on direct appeal contradicts any indication of diligence. While it is true that, as a general matter, courts are limited to the trial court record on appeal,8 there is no evidence that Scott made any attempt to obtain a statement from Martino and move to supplement the record. Due diligence does not require that the court accept a defendant’s new evidence; it simply requires that the defendant make some meaningful steps toward obtaining the evidence and presenting it to the reviewing court. Based on the record before us, it appears Scott took no such steps and thus we cannot conclude that the new evidence could not have been reasonably presented on direct appeal.
Thus, because Scott presents no facts from which we can infer diligence, we conclude that Scott cannot lift the relitigation bar.

(That footnote 8 begins, “It is likely that none of the exceptions to this nearly categorical rule would have applied to Scott.”)

So, here’s what we have. On direct appeal, Scott asserted that his counsel tried to withdraw the guilty plea before it was accepted by the judge. But that assertion relied on a fact not in the record, and, really, it was clear as day that the law barred him from getting that new evidence into the record on direct appeal. Now, many good direct-appeal lawyers would not make an extra-record fact assertion like that. But Scott’s bold move actually wasn’t bold enough! This opinion seems to say he also had to try to get a statement from the lawyer and then ask the court to allow it into the appellate record. And because he didn’t make that goofy request, his new evidence “could … reasonably have been presented” on appeal.

That’s not how I see it. If the court wouldn’t have let you present it, it ain’t something that you could reasonably have presented.

And this holding isn’t just wrong but wrong-headed, because from now on cautious Third Circuit lawyers have to festoon their criminal appeals with dead-on-arrival requests to admit new evidence.

If I knew a rehearing dance, I’d be doing it.

New opinions — “crime of violence” deportation trigger is unconstitutionally vague

Baptiste v. AG — immigration — reversal — Greenaway

The Third Circuit held that the statutory “crime of violence” standard, like the armed-career-criminal residual clause, is unconstitutionally vague. This holding deepens a circuit split. The court ruled that the petitioner here still is deportable, though, because he was convicted of two ‘crimes involving moral turpitude.’

Joining Greenaway were Scirica and Rendell. Arguing counsel were Dickinson School of Law student Penelope Scudder of for the petitioner and Jesse Bless for the government.

 

US v. Henderson — criminal — affirmance — Vanaskie

The Third Circuit today upheld a district court’s ruling that a criminal defendant was an armed career criminal (and thus subject to a much more severe sentence), holding that PA’s Controlled Substance Act — sorry, what follows is gibberish unless you do criminal appeals —  is divisible and thus subject to the modified categorical approach. The case was argued just over a year ago.

Joining Vanaskie were Fuentes and Jordan. Arguing counsel were Renee Pietropaolo for the defendant and Laura Irwin for the government.

“Voting Toomey? Consider His Judicial Obstructionism.”

The title of this post is the headline of an essay by law professor Carl Tobias posted Friday on The Hill. After criticizing Senator Toomey for the delay in confirming Judge L. Felipe Restrepo, Tobias writes:

Equally troubling was Toomey’s handling of another Third Circuit vacancy to which Obama nominated Rebecca Ross Haywood, an experienced federal prosecutor, who would be the first African American female Third Circuit judge, if confirmed. Toomey disagreed with Haywood’s answers to his questions in a March 2016 private meeting, and he has singlehandedly blocked her hearing since then.

He concludes:

When Pennsylvanians vote, they should remember Senator Toomey’s claim that he has kept the federal courts filled. However, Toomey actually has obstructed nominees at every level of the federal judiciary (Supreme Court, Third Circuit and Pennsylvania Western and Eastern Districts) and in all stages of the nomination and confirmation processes.

As of yesterday, fivethirtyeight.com gives Toomey a 33 percent chance of winning, describing him as “one of the most conservative senators in Congress, despite representing a state that tends to vote Democratic in presidential elections.”

New opinions — Court affirms Facebook-threats conviction again

US v. Elonis — criminal — affirmance — Scirica

Last year, the Supreme Court reversed the Third Circuit’s affirmance of Anthony Elonis’s conviction for making threats on Facebook. On remand, the court today affirmed again, holding that the error was harmless because the jury would have convicted him if it had been properly instructed.

Joining Scirica were McKee and Hardiman. Arguing counsel were Abraham Rein of Post & Schell for Elonis and Mark Levy for the government.

 

In re: Grand Jury Matter #3 — criminal / jurisdictional — dismissal — McKee

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal from an order allowing the prosecution to show a grand jury privileged emails because, while the appeal was pending, the grand jury indicted the appellant.

Joining McKee was Scirica; Ambro dissented. Arguing counsel were Scott Resnik of New York for the appellant and Mark Dubnoff for the government.

More election drama headed towards Third Circuit (Pa. edition)

Michelle Bond has this story on Philly.com, headlined, “Federal court asked to invalidate Pa. judge-retirement vote.”

The article begins:

Two former Supreme Court chief justices and a prominent Philadelphia lawyer are asking a federal court to declare a ballot question extending state judges’ retirement age unconstitutional and any votes cast on it invalid.

The complaint filed Thursday in U.S. District Court by former Supreme Court Chief Justices Ronald D. Castille and Stephen Zappala Sr. and Philadelphia attorney Richard A. Sprague also asks for an injunction to prevent the tally of votes on the ballot question. It comes less than two weeks until voters are to decide whether to raise the retirement age of state judges from 70, to 75.

I bet I’m not the only one who finds it ironic to see Castille turning to the federal courts.

Empirical Scotus thinks Krause is a “Top Choice” for Clinton Supreme Court pick

Adam Feldman had this post on Empirical Scotus earlier this week, entitled, “Narrowing Down Clinton’s Choices for Supreme Court Nominee.” (H/T How Appealing). The most interesting point for Third Circuit enthusiasts is that Feldman names Judge Cheryl Ann Krause as one of top five choices for a Supreme Court nomination by Hillary Clinton.

(Back in February I reached a similar conclusion. I brag in parentheses.)

Election drama headed towards Third Circuit?

Elliot Hannon has this story on Slate, published last night, entitled, “DNC Sues RNC Claiming Trump’s ‘Ballot Security’ Effort Is Illegal Voter Intimidation.”

The text of the article (boldface mine, hyperlinks in original):

The Democratic National Committee sued the Republican National Committee in a New Jersey federal court Wednesday, claiming that the RNC has supported and enabled Donald Trump in his claims the election is “rigged,” which, the suit says, is designed to illegally “intimidate and discourage minority voters from voting in the 2016 Presidential Election.” Specifically, the DNC’s suit says that Trump’s efforts to enlist supporters to engage in voter intimidation or “ballot security,” particularly in “other communities”—read: minority communities—violates a decades-old court order designed to prohibit attempts at voter suppression.

Although described as a suit, it’s actually an action to enforce a consent decree entered in an earlier suit whose appeal the Third Circuit heard in 2012, Democratic Nat’l Comm. v. Republican Nat’l. Comm.

Get your popcorn, could be quite a show.

New opinions — ripeness and arbitratrability

Marshall v. Commissioner PA DOC — capital / ripeness — dismissal — per curiam

Having already removed his first set of appointed lawyers, a capital inmate moved to remove the next set of lawyers, too. While his motion was still pending, he filed a notice of appeal, and some time after the district court denied the motion. Today, the Third Circuit dismissed the appeal for lack of jurisdiction, holding that the district court’s post-notice ruling did not cure the lack of ripeness.

The opinion was per curiam; the panel was Smith, Hardiman, and Restrepo. The case was decided without argument.

South Jersey Sanitation v. Applied Underwriters Captive Risk Assurance Co. — civil / arbitration — reversal — Greenaway

The Third Circuit today reversed a district’s denial of a motion to compel arbitration, holding that the challenges to arbitration failed because they applied to the contract as a whole instead of the arbitration agreement alone, and thus were issues for the arbitrator to decide instead of grounds to avoid arbitration.

Joining Greenaway were Jordan and Hardiman. Arguing counsel were Thomas Quinn of Wilson Elser for the appellant and Louis Barbone of Jacobs & Barbone for the appellee.

 

New opinion — local official entitled to qualified immunity

Zaloga v. Borough of Moosic — civil rights — reversal — Jordan

The Third Circuit today reversed a district court’s denial of summary judment on qualified-immunity grounds. The introduction:

This case is an appeal from an interlocutory decision denying defendant Joseph Mercatili’s claim to qualified immunity. Dr. Edward Zaloga, who had been engaged in an ongoing feud with local government officials, publicly opposed Mercatili’s reelection as the President of the Moosic, Pennsylvania Borough Council. Mercatili allegedly retaliated against Zaloga by seeking to damage his business interests.

Zaloga brought this § 1983 suit against several county entities and individuals, alleging various constitutional violations, including Mercatili’s retaliation. The United States District Court for the Middle District of Pennsylvania granted the defendants’ motion for summary judgment with respect to all defendants except Mercatili. The Court decided that Mercatili’s claim to qualified immunity depended on disputed facts and would have to be resolved by a jury.

Mercatili now appeals, arguing that he is entitled to qualified immunity because his conduct, even if Zaloga’s allegations are true, did not violate clearly established law. We agree and will reverse and remand for the District Court to grant summary judgment in Mercatili’s favor.

Joining Jordan were Smith and Rendell. Arguing counsel were Joshua Autry of Lavery Law for the appellants and Joseph Healey of O’Malley Harris for the appellees.

Judge Hardiman is not a “radical-right” judge: another sound-bite cheap shot at a Third Circuit judge

Critiquing appellate judges accurately is hard work. They decide cases in panels, not individually, and most of the cases they decide are dulls-ville to the general public. Dramatic insights into ability and ideology are few and far between.

But earlier in the election cycle, conservatives tried to score a political point against Donald Trump by painting Third Circuit Judge Maryanne Trump Barry as a radical pro-abortion extremist. It was a pathetic effort, egged on by people who surely knew better.

Now, it’s liberals’ turn to try to score a point against Trump by smearing judges, and this time the Third Circuit judge in the cross-hairs is Judge Thomas Hardiman.

Over the weekend, Huffington Post ran this essay by law professor Marjorie Cohn, entitled “The Threat of a Right-Wing Supreme Court: Analyzing Trump’s Prospective Judges.” The core premise of the piece is that the judges Trump has named as potential Supreme Court nominees are conservative (or, in the language quoted in the piece, “reflect a reflect a radical-right ideology that threatens fundamental rights and legal protections”).

Cohn tries to prove the judges’ radical-right wrongness by identifying conservative opinions written by each of the judges. For Judge Hardiman, she first notes his dissent in Drake v. Filko, arguing that the Second Amendment barred a state law that said you could only carry a handgun in public if you showed a justifiable need. Fair enough.

But then she writes:

Thomas Hardiman wrote two opinions allowing correctional officers to conduct strip searches of inmates accused of minor offenses.

The two cases she’s referring to are Florence v. Bd of Chosen Freeholders (2010), and Blaisure v. Susquehanna Co. (2015). The idea that these cases reveal Hardiman as a right-wing wingnut does not withstand scrutiny.

In Florence, Hardiman’s opinion was joined by Judge Sloviter. In Blaisure, he was joined by Chief Judge McKee and Judge Ambro. Are they all radical-right judges now, too?

And if Florence and Blaisure prove that Hardiman is so out-there, what about J.B. v. Fassnacht, which upheld strip searches for detained 12 year-olds? That ruling is vastly more troubling to me than either of Hardiman’s, and it was written by Clinton nominee Judge Julio Fuentes. Should progressives complain if a Republican nominated him to the Supreme Court?

With so many legitimate grounds to criticize Trump, why this? Sound-bite judge-bashing is lazy and poisonous, whether it’s done by conservatives or liberals.

Judge Hardiman will present at 2016 Federalist Society convention

Third Circuit Judge Thomas Hardiman will be a speaker at next month’s Federalist Society annual lawyer’s convention. The topic of the convention is “The Jurisprudence and Legacy of Justice Scalia.” Justices Thomas and Alito also will be speaking along with an impressive list of judges, lawyers, and and practitioners. Marcia Coyle has a National Law Journal story on the convention here.

Foolishly, the event’s webpage does not list Judge Hardiman among the five circuit judges (and one district judge and one state judge) named as “Speaker Highlights.”

New opinions — Third Circuit bashes trial court and prosecution but affirms anyway, plus a maritime case

U.S. v. Bailey — criminal — affirmance — McKee

The Third Circuit today held that a district court violated Rule 403 of the Federal Rules of Evidence when it admitted evidence of the defendants’ other bad acts, but that the error was harmless given the overwhelming evidence of their guilt. The defendants were convicted of heroin dealing; the erroneously admitted evidence included a surveillance video of a murder that was related to their drug trafficking. The court noted that it was disturbed by the prosecution’s tactic in using the murder video and “extremely troubled” by the district court’s admission of it, noting (cites omitted):

The extent of the district court’s [Rule 403] balancing regarding this piece of evidence was an off-handed and rather casual remark that the video of James being shot in the head at point blank range “wasn’t very graphic.” With that comment, the district court concluded that the video evidence would be admitted. For reasons known only to the court, the judge added that the admission of this evidence would give the defendants “an appeal issue.” The court was right.

Zing. And because the district court did not explain its 403 reasoning, the Third Circuit didn’t even apply the deferential abuse-of-discretion standard it normally would. But after the obligatory impotent Berger quote — which the opinion itself admitted “seems all too often to resemble the falling tree that no one hears” — the court found the error harmless and affirmed.

The opinion included this remarkable footnote:

Chief Judge McKee notes that he will begin naming attorneys who engage in such tactics in his opinions in order to deter such conduct. He hopes that this practice will stress that harmless error review is not an invitation to resort to unduly prejudicial tactics merely because the evidence is strong enough to obtain a conviction that will likely be immunized against reversal by the harmless error doctrine. He invites his colleagues to do the same.

Well, I’m not his colleague, but the docket lists as lead trial counsel for the prosecution Patrick C. Askin.

Joining McKee were Jordan and Roth. Arguing counsel were John Holiday, Gina Capuano, William Spade, and James Murphy for the four defendants and Norman Gross for the government.

 

Hargus v. Ferocious and Impetuous — maritime — reversal — Vanaskie

In the circuit’s most interestingly captioned case of the year to date, the Third Circuit today vacated a civil judgment for lack of maritime jurisdiction. And you don’t see this every day:

It bears noting that no entry of appearance was made on behalf of Hargus. Nor was a brief filed on his behalf and neither Hargus nor an attorney acting on his behalf participated in oral argument.

Vanaskie was joined by Fuentes and Restrepo. Arguing counsel was Matthew Duensing of the Virgin Islands for the appellants.

Third Circuit issues notice on new FRAP word limits

The Third Circuit today posted a notice to counsel on the court’s website addressing the new, shorter word limits for appellate briefs as well as other changes to the Federal Rules of Appellate Procedure.

The notice explains that all briefs filed after December 1 must comply with the new limits, except that appellee and reply briefs (but not motions or other non-brief filings) can use the old limits if the appellant’s brief was filed before December 1. The notice also includes this notable passage (hyperlink added):

The Court has reviewed the standing order of January 9, 2012 which discourages motions to exceed the word limits. The Court has determined that insofar as the order provides for granting a motion for excess words in extraordinary circumstances such as complex multi-party cases or when “the subject matter clearly requires expansion of the word limits” the order is in harmony with the comment to Rule 32 and will remain in force.

The notice also highlights two other key FRAP changes:

  • “Rule 4(a)(4) … clarifies that a motion listed in the Rule that is made after the time allowed by the Civil Rules will not toll the time for appeal,” and
  • “Rule 26(c) … ‘is amended to remove service by electronic means under Rule 25(c)(1)(D) from the modes of service that allow 3 added days to act after being served.'”

The notice states: “The full report and text of the Amendments are posted on the Court’s website. Counsel should read and become familiar with the changes to the Rules.” Sound advice.

New opinion — court rules for prisoner in speech-retaliation appeal

Mack v. Warden, Loretto FCI — prisoner civil rights — reversal — Fuentes

A divided Third Circuit panel ruled in favor on an inmate alleging violation of his rights. As the majority opinion summarized:

Mack’s allegations raise several issues of first impression in our Circuit, including (1) whether an inmate’s oral grievance to prison officials can constitute protected activity under the Constitution; (2) whether RFRA prohibits individual conduct that substantially burdens religious exercise; and (3) whether RFRA provides for monetary relief from an official sued in his individual capacity. We answer all three questions in the affirmative, and therefore conclude that Mack has sufficiently pled a First Amendment retaliation claim and a RFRA claim. We agree, however, that Mack’s First Amendment Free Exercise claim and Fifth Amendment equal protection claim must be dismissed. We will therefore affirm in part, vacate in part, and remand to the District Court for further proceedings.

Fuentes was joined by McKee; Roth dissented in part, arguing that inmates’ oral complaints should not be First-Amendment-protected speech. Arguing for the prisoner was Duke law appellate clinic student Russell Taylor (supervised by Sean Andrussier), and for the government was Jane Dattilo.

New opinion — paying employees for meals doesn’t excuse failure to pay them for overtime

Smiley v. E.I. DuPont — employment — reversal — Rendell

Employees of DuPont sued the company under the FLSA and state law for not paying them overtime for their off-the-clock time donning and doffing their uniforms and consulting with other employees. DuPont argued that it didn’t have to pay them this overtime because instead it paid them for their meal-break time, which it was not legally required to do. It argued that it could use the meal time for which it paid employees to offset the other time for which it didn’t. The district court agreed with DuPont, but today the Third Circuit reversed.

Joining Rendell were Vanaskie and Krause. Arguing counsel were Thomas Marrone for the employees, David Fryman of Ballard Spahr for Dupont, and Rachel Goldberg for the US Department of Labor as amicus curiae.

Lawyer wins landmark Third Circuit victory, according to himself

Yesterday the online National Law Review published an article reporting on the Third Circuit’s recent qui tam reversal in U.S. ex. rel. Customs Fraud v. Victaulic. The headline calls the decision “an important case of first impression” and “a landmark legal precedent.” The article is written like a news story, which is a little odd since the author is the lawyer who won the case. Odder still, he quotes himself in the story.

“Quoting yourself in a news story you wrote about your own case is something you probably shouldn’t do,” commented Matthew Stiegler, author of the landmark blog CA3blog.

For what it’s worth, here’s his take on why the case is a big deal:

The opinion issued yesterday addresses an issue that had not previously been addressed by any appellate court in the country, namely, whether a company that violates the country-of-origin marking requirement, and fails to pay marking duties, may be sued under the current version of the False Claims Act. The lower court had dismissed the complaint, reasoning, in part, that even if Victaulic had engaged in the alleged wrongdoing, it could not be held liable under the False Claims Act.  In yesterday’s decision, the Court of Appeals reversed, holding that False Claims Act liability “may attach as a result of avoiding marking duties.”

Happy Friday!

New opinions — an immigration reversal on aggravated felonies and a sentencing reversal on loss amount

Singh v. AG — immigration — reversal — Scirica

The Third Circuit today held that a Pa. conviction for possession of counterfeit drugs with intent to deliver is not an aggravated felony that would make the person convicted ineligible for discretionary relief from removal. The court held that the BIA erred by not applying the modified categorical approach. The court granted the petition for review and remanded.

Joining Scirica were Ambro and Jordan. Arguing counsel were Craig Shagin for the petitioner and Elizabeth Chapman for the government.

 

US v. Free — criminal sentencing — reversal — Fuentes

Here’s one you don’t see every day. A guy with plenty of money to pay his debts filed for bankruptcy and hid hundreds of thousands of dollars worth of assets, except he still had enough assets to pay his creditors in full. Not for nothing does the Third Circuit describe this as “bizarre.” The asset-hiding led to criminal convictions for bankruptcy fraud and a two-year sentence.

The issue in today’s appeal was how to calculate the loss amount for sentencing purposes, given that the creditors lost nothing. The district court used the amount the defendant concealed and the amount of debt he sought to discharge in bankruptcy. The Third Circuit reversed for resentencing, ruling that the loss amount is the amount the creditors lost or the amount the defendant intended to gain. The court noted that the resentencing court still could impose the same sentence, even without any loss enhancement, through an upward departure for lying and disrespect to the court. The court rejected as “too clever by half” his argument that the absence of loss rendered the evidence legally insufficient.

Joining Fuentes were Shwartz and Restrepo. Arguing counsel were Martin Dietz for the defendant and Laura Irwin for the government.

 

 

New opinions — a wiretap-suit-standing shocker and a qui tam reversal [updated]

Schuchardt v. President of the U.S. — civil — reversal — Hardiman

Today the Third Circuit ruled in favor of a solo civil practitioner named Elliott Schurchardt appearing pro se and appealing the denial of a pro se suit he brought against the government on behalf himself and others similarly situated. The pro se filer alleged that the NSA’s electronic monitoring violates the Fourth Amendment. The district court dismissed his suit on standing grounds, but the Third Circuit held that the pro se filer’s allegations were sufficient to survive dismissal on standing grounds, even though he alleged that the harm here resulted from collection of “all or substantially all of the email sent by American citizens by means of several large internet service providers.”

I’m going to go way out on a limb and predict a government rehearing petition and/or cert petition.

Joining Hardiman were Smith and Nygaard. Arguing counsel were Schuchardt (his address in the caption is in Virginia, his website lists Tennessee, and 2015 news coverage says Pittsburgh) pro se, and Henry Whitaker of the DOJ appellate section for the government.

UPDATE: seemingly intent on snatching defeat from the jaws of victory, the miraculously prevailing appellant already has been quoted in this news story as follows:

The appellate court ruling, however, limits his ability to subpoena evidence and depose witnesses, apparently exempting anything with a national security classification.

“If that’s the case, I’m not sure how much further the case can go because obviously, this entire area is classified,” said Schuchardt, who is considering an appeal to the Supreme Court on that part of the decision.

Sigh.

U.S. ex rel. Customs Fraud v. Victaulic — civil / qui tam — reversal — Roth

A divided Third Circuit panel today ruled that a district court erred in denying on futility grounds a qui tam relator’s motion for leave to amend its complaint. This appeal arises from the same amazing sitting I wrote about a couple weeks ago, the tenth published opinion from that panel.

Joining Roth was Krause; Fuentes dissented with vigor, arguing, “Whereas Twombly and Iqbal require plausible allegations of wrongdoing, CFI gives us unsupported assumptions and numerical guesswork.” Arguing counsel were Jonathan Tycko of D.C. for the appellant, Henry Whitaker (same one) for the government as amicus appellant, and Thomas Hill of D.C. for the appellee.

 

 

McKee’s early end to Third Circuit chief judgeship: collegiality over partisanship? [updated after speaking to Judge McKee]

When Third Circuit Judge Theodore McKee stepped down from his role as Chief Judge on October 1, he ended his chief judgeship early. Judge McKee’s term as chief would have run through 2017.

What’s the actual reason he stepped down early? I don’t know. The court’s press release didn’t mention that he was giving up his role before his term was over, let alone say why. And I don’t have any inside information. But I’ve got a theory.

[UPDATE: After I posted this, Judge McKee confirmed that my theory about why he stepped down early was “exactly dead on.”]

First, some background. Circuit-chief-judgeship-selection procedure is set by statute, 28 USC § 45. To become chief, you have to be under 65; your term runs for 7 years or until you turn 70, whichever comes first. McKee became chief in 2010 and was born in 1947, so his term was set to end in 2017.

Did he end early due to health? Because he wanted to scale back? Because he’s tired of the extra administrative role? I’ve seen nothing to support any of those hypotheses. The court’s press release says he’s not going senior, and his recent creation of the eyewitness-identification task force shows how comfortable he still was wielding the chief’s power.

But McKee’s decision to step down in 2016 had this clear consequence: it allowed Chief Judge Brooks Smith to become chief. Smith turns 65 in December, so, if McKee had served out his term into 2017, Smith would have been too old to become chief. Judge Michael Chagares would have been next in line, instead.

An aside:  am I suggesting McKee gamed his retirement date to keep Chagares from succeeding him? No. Chagares will still be chief (assuming he remains on the court and wants to be chief). If Smith serves his full term, he will be chief until 2021 when he turns 70. In 2021 Chagares will be only 59, so he’d still be eligible to serve a full seven-year term.

So why did McKee step down early? My guess [now confirmed] is he did it simply so that Smith could have the honor of serving as circuit chief. Third Circuit collegiality, pure and simple.

Okay, so now let’s look at all this through a partisan lens. McKee’s decision to step down early is remarkable in this poisonously partisan era, and not just because he’s a liberal and Smith was nominated by President George W. Bush. Here’s how the circuit’s chief judgeship succession will now play out in the years ahead, assuming everyone stays on the court, serves as chief when eligible, and serves a full term:

2016 – 2021  Smith

2021 – 2028  Chagares

2028 – 2035  Hardiman

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

So Republican-nominated judges can be chief until 2035, and likely longer than that if the next president is Republican.

Now, look at how the succession would have played out (same assumptions as above) had McKee served out his term:

2017 – 2024  Chagares

2024 – 2031  Hardiman

2031 – 2038  Krause

A Dem-appointed judge would have taken over in 2031, regardless who wins this November. GOP-nominated judges would have been able to be circuit chief for ‘only’ 14 years, not 19-plus.

Now, that’s all pretty deep in the weeds, obviously, but it demonstrates a basic point: McKee’s decision to step down early didn’t just benefit Smith, it also benefits Republicans. I doubt Judge McKee gave a damn.

If I’m right about all this [and I am], it shows that, even in 2016, there are still leaders who choose collegiality over partisanship.

The Third Circuit has a new Chief Judge

The Hon. D. Brooks Smith is the new Chief Judge of the United States Court of Appeals for the Third Circuit. He officially succeeded Judge Theodore McKee this past Saturday, becoming the court’s thirteenth Chief Judge. By statute, he is eligible to serve as Chief until he turns 70 in 2021.

Welcome, Chief Judge Smith!

New opinion — Third Circuit reverses in hard-fought Avaya appeal

Avaya v. Telecom Labs — civil / antitrust — reversal — Jordan

In an appeal that pitted a former Solicitor General against a former president of the American Academy of Appellate Lawyers, a divided Third Circuit today held that a district court erred by granting a mid-trial motion for judgment as a matter of law in this gigantic antitrust and civil suit. The majority slip opinion runs 118 pages. The dissent, another 15 pages, argues in part that the majority should not reverse based on an argument first made in the reply brief.

Jordan was joined by Greenaway; Hardiman dissented. Superstar arguing counsel were Seth Waxman for the appellant and James Martin for the appellees. (Argument audio here.)

Upcoming program — Judges and Journalists

The Third Circuit today announced a day-long event being held November 14 at the National Constitution Center in Philadelphia. The event is billed as “a dialogue on accuracy and access,” and the keynote speaker will be New York Times columnist Linda Greenhouse. Other presenters will include Third Circuit Judges McKee, Smith, Krause, and Rendell, as well as top national and local journalists.  Registration is free and includes lunch and a cocktail reception. The complete agenda is here.

I’m honored to be on a panel discussing topics on the horizon in the courts with Edson Bostic, Lawrence Lustberg, and Stephanie Resnick, moderated by Gaetan Alfano.

Space is limited, register online on the Third Circuit website, here.

 

Third Circuit officially announces new Chief

The Third Circuit today posted a news release announcing that Judge Smith will succeed Chief Judge McKee as the court’s Chief Judge, link here. Not many press releases qualify as can’t-miss reading, but I recommend it.

Two highlights:

“The Third Circuit is fortunate to have at the helm a judge with Brooks Smith’s
demonstrated record of leadership. Judge Smith led the judiciary through a significant
courthouse space reduction plan while also helping us secure a major commitment from
Congress to replace aging court facilities around the country,” said James C. Duff, the Director
of the Administrative Office of the U.S. Courts.

and

Judge Smith said, “Ted McKee is not only my colleague; he is also my dear friend.
Following him as Chief Judge of the Third Circuit goes beyond what I would call a ‘daunting
challenge.’ I may be succeeding him, but there is no way I can take his place. I am fortunate
that he will continue on the court as an active judge, and as someone I will look to for advice and counsel.”

 

New opinion — Third Circuit upholds rejection of generic drug-maker’s antitrust suit

Mylan Pharma. v. Warner Chilcott — antitrust — affirmance — Fuentes

“Product hopping” is a strategy name-brand drug makers use to suppress competition from makers of generic drugs. By changing their drugs in minor ways, they force generic makers to restart the federal approval process to show that their generic drug is the same. The practice has led to antitrust litigation, including today’s case involving an acne drug sold under the unfortunate brand name Doryx.

Today, the Third Circuit affirmed a district court ruling in favor of the antitrust defendant, holding that the plaintiffs failed to show that the defendants had monopoly power and failed to show that their product-hopping was in fact anti-competitive.

Joining Fuentes’s lucid opinion were Shwartz and Barry. Arguing counsel, amidst a phalanx of amici, were Jonathan Jacobson of Wilson Sonsini for the generic drug-maker and John Gidley of White & Case for the antitrust defendants.

“Alito Recalls Garth as ‘Epitome of Dedication'”

The title of this post is the headline of a story by David Gialanella in today’s New Jersey Law Journal. One highlight:

As a jurist, Garth was “the epitome of dedication,” “extraordinarily fair” and “very, very open-minded,” Alito recalled. Even when the circuit’s practice of sua sponte taking a case for en banc review had fallen by the wayside, Garth “continued to read every opinion very carefully” before it was issued, according to Alito.

Garth’s greatest lesson, according to Alito, was to study the record to form a better understanding of why the below court reached the ruling it did.

Also, Garth clerk Orin Kerr posted a fond tribute on Volokh Conspiracy yesterday, including this:

Judge Garth was in both attitude and demeanor a model judge. He wanted to get every case right, no matter how obscure it was, and he did cases by the book. If you listen to Richard Posner, you’ll hear that judges reach decisions that seem sensible on pragmatic grounds and then reason backwards to get there. Not Judge Garth. He was obsessed over the record and the standard of review.

New opinion — Third Circuit blocks hospital merger

Federal Trade Comm’n v. Penn State Hershey Medical Ctr. — antitrust — reversal — Fisher

The Third Circuit today ruled that the government was entitled to a preliminary injunction blocking the proposed merger of the two largest hospitals in the Harrisburg, Pa., area. The district court had denied the injunction, ruling that the FTC had failed to properly define the relevant geographic market. The Third Circuit’s review was plenary because the lower court misapplied economic theory. On the merits, it explained:

We find three errors in the District Court’s analysis. First, by relying almost exclusively on the number of patients that enter the proposed market, the District Court’s analysis more closely aligns with a discredited economic theory, not the hypothetical monopolist test. Second, the District Court focused on the likely response of patients to a price increase, completely neglecting any mention of the likely response of insurers. Third, the District Court grounded its reasoning, in part, on the private agreements between the Hospitals and two insurers, even though these types of private contracts are not relevant to the hypothetical monopolist test.

Joining Fisher were Greenaway and Krause. Arguing counsel were William Efron for the FTC and Louis Fisher of Jones Day for the hospitals.

Early news coverage by Pennlive here and Legal Intelligencer here. My prior post on the case (quoting a former FTC general counsel saying the district court’s ruling was “appallingly bad”) is here.

“Adjunct professor, alumnus appointed chief judge of 3rd U.S. Circuit Court”

The title of this post is the headline of a charming feature posted today on Penn State’s website on about-to-be-Chief Judge Smith.

Of particular interest to me:

Smith very much enjoys the case work he is involved in on the 3rd Circuit, and the processes of both studying a case and deciding a case. While he admits that the Court of Appeals process of deciding by three-judge panels is very different than that used by the District Courts, where a single judge makes the decision, he likes discussing the case with colleagues on the panel and finding common ground, as well as determining the right words for a judicial decision.

“The Court of Appeals is a constant intellectual challenge,” Smith said. “And the opportunity to teach has provided congruence between the study work of appellate cases and the pedagogy of a law professor. There are similarities in both positions.”

As for his legal legacy, he doesn’t give it much thought. He hopes his colleagues and the lawyers who appear before him view him as someone who decides each case based on its merits, and not on ideologies, politics or agenda.

“If they see me as motivated by proper concerns,” he stated, “I will be perfectly satisfied.”

New opinion — a quirky little treaty case

Didon v. Castillo — treaty — reversal — Greenaway

The Hague Convention allows a parent to petition for return of a child who has been removed from her country of “habitual residence” in violation of the parent’s rights. In a clear and thorough opinion, the Third Circuit today held that the Hague Convention does not permit a child to have two “habitual residence” countries at the same time, and ruled that the parent’s petition here must be dismissed because the child’s country of habitual residence does not recognize the Hague Convention.

Joining Greenaway were McKee and Fisher. Arguing counsel were civil appeals lawyer Anthony Vetrano of Vetrano Vetrano & Feinman for today’s losing parent and Michelle Pokrifka of CGA Law Firm for the winning parent.

Judge Garth died this week

Third Circuit Judge Leonard I. Garth passed away on Thursday. He was 95.

David Gialenella has this story in the New Jersey Law Journal, and the Rutgers website has this post.

In the Law Journal story, Chief Judge McKee is quoted describing Judge Garth as “absolutely tenacious,” and saying, “He was in many ways the conscience of the court, right up to his passing.”

UPDATE: Orin Kerr, a Garth clerk, has this warm tribute on Volokh Conspiracy, worth reading in full but featuring this:

Judge Garth was in both attitude and demeanor a model judge. He wanted to get every case right, no matter how obscure it was, and he did cases by the book. If you listen to Richard Posner, you’ll hear that judges reach decisions that seem sensible on pragmatic grounds and then reason backwards to get there. Not Judge Garth. He was obsessed over the record and the standard of review. He checked and double-checked whether jurisdiction was proper, because if there was no jurisdiction the court had no authority to decide the case.

He also insisted that his clerks give as much attention to hand-written pro se cases as to appeals by lawyers from big firms, on the thinking that every case was equal no matter whether the party was rich or poor. Clarence Earl Gideon wrote his cert petition in pencil, the judge would remind his clerks. You never know which pro se case might be the next Gideon.

New opinion — Court rejects necessity requirement for class certification

Gayle v. Warden Monmouth County Corr. Inst. — immigration / class action / jurisdiction — reversal — Krause

Today’s lone published opinion was issued by a panel comprised of Judges Fuentes, Krause, and Roth, which sat in February. It’s the third precedential opinion issued by that panel in the past week (Johnson and Hoffman are the other two), and all three are biggies. I went back and looked, and this is the ninth precedential opinion issued by that panel!  (Others include the kindergardener-abduction case, a criminal-sentencing appeal I described as “exceptionally aggressive,” and a big Fourth Amendment home search case.) I don’t normally track such things, but nine published opinions (and counting?) from one panel sitting has to be some kind of a record.

Anyway, today’s opinion arises from a class action suit challenging a federal statute imposing mandatory detention of aliens who have committed certain crimes. The facts and procedural history are complicated, but the gist of it is that the Court ruled today that the district erred by deciding the merits of the suit long after the class representatives’ claims had become moot, depriving both the district court and the Third Circuit of jurisdiction over the entire case except for a motion for class certification. (Oops.) The Court further held that the district court erroneously denied certification based on its view that a class action was “unnecessary” — noting a circuit split, the court held that necessity is not a freestanding basis for denying certification.

Krause was joined by Fuentes and Roth. Arguing counsel were Judy Rabinovitz of the ACLU Immigrants’ Rights Project for the class and Elizabeth Stevens for the government.

An update on the Hoffman case

I posted last Wednesday about an opinion the Third Circuit issued that day in Hoffman v. Nordic Naturals. In Hoffman, the court held that a district court was permitted to bypass the question of whether it had subject-matter jurisdiction over a case when it dismissed the case with prejudice on claim-preclusion grounds. My post criticized the opinion’s reasoning and gave my view that the opinion warranted rehearing.

At the time I posted, I had no connection to the case. I first saw the opinion Wednesday afternoon after the court posted it on its website.

After I published my post, I was contacted by the attorney who was the losing party in the appeal (he had done the appeal pro se), and he has now retained me to seek rehearing in the case.

My readers are entitled to expect that, when I discuss a case I’m involved with, I disclose that, as I did for example here, and I will continue to do that. So I’m posting this explanation to make clear that I had no awareness of the case before the court posted its opinion and no connection to the case at the time of my original post.

 

 

New opinions — affirming class certification and re-issuing an immigration opinion

Williams v. Jani-King of Philadelphia — civil / class action — affirmance — Fisher

The Third Circuit today affirmed a ruling certifying a class in a suit brought by two franchisees who allege that they are employees not independent contractors and thus are entitled to state-law wage protections. The class defendants argued that certification was error because the claims were not fit for class resolution, an issue implicating both commonality and predominance. The panel majority rejected this argument, emphasizing that an interlocutory challenge to certification is not the place to decide the merits. Judge Cowen dissented on commonality grounds, arguing that the majority opinion threatens the viability of franchising.

Joining Fisher was Chagares; Cowen dissented. Arguing counsel were Aaron Vanoort of Minnesota for the class defendants and Shannon Liss-Riordan of Massachusetts for the class plaintiffs.

UPDATE: commentary on JDSupra agreeing with the dissent here.

 

Ordonez-Tevalan v. A.G. — immigration — affirmance –Greenberg

The Third Circuit today granted panel rehearing and issued a new panel opinion in Ordonez-Tevelan v. A.G. The prior opinion is here, my summary is here. The disposition is unchanged, and my quick comparison of the two cases failed to reveal to me what changed. If an eagle-eyed reader alerts me I’ll update this post.

 

 

New opinion — split panel upholds dismissal of suit against officer who confronted and killed man high on PCP

Johnson v. City of Philadelphia — civil rights — affirmance — Fuentes

A lone police office responding to a radio call arrived on the scene to find a man “standing in the street, naked, high on PCP, and yelling and flailing his arms.” Police department policy directed the officer on what to do: “DEESCELAT[E] THE INCIDENT” by waiting for back-up, attempting to de-escalate through conversation, and retreating instead of using force. But, instead, the officer ordered the man to approach him. A confrontation ensued, the man reached for the officer’s gun, and the officer tasered the man and then used his gun to kill him. The man’s estate sued the officer and the city for excessive force.

Today, a divided Third Circuit panel affirmed dismissal of the man’s suit. The majority left open the possibility that an officer’s reckless initiation of an encounter could form the basis for an excessive-force claim, and also that the officer’s violation of department policy may be used to assess the reasonableness of a seizure. But the majority upheld dismissal of the suit on proximate-cause grounds, holding that there was no evidence from which a reasonable jury could find the requisite nexus between the officer’s act and the resulting death.

Judge Roth (notably, the only judge on the panel nominated by a Republican president) dissented, arguing, “By knowingly violating a police department regulation designed to keep mentally disturbed individuals safe, Dempsey set into motion the confrontation that ultimately led to Newsuan’s death – a confrontation whose foreseeability was the impetus for the establishment of Directive 136.”

Fuentes was joined by Krause, with Roth dissenting. Arguing counsel were Armando Pandola Jr. of Abramson & Denenberg for the estate and Craig Gottlieb of the city law department for the city.

New opinion — admission of police officers’ opinion testimony clear error, but harmless

U.S. v. Fulton — criminal — affirmance — McKee

The Third Circuit today held that the trial court committed obvious errors by admitting two police officers’ lay-opinion testimony, but that the errors were harmless in light of other proof of the defendant’s guilt. In order for lay-opinion testimony to be admissible under FRE 701, it must be (among other things) helpful to the jury. The Third Circuit held that one officer’s testimony interpreting phone records was not helpful because it was “dead wrong and even misleading.”  Other testimony about whether two people looked alike was not helpful because the officers were not sufficiently familiar with the people they were discussing. (This holding relates to the recent Dennis en banc and the circuit’s new eyewitness identification task force.) The court rejected various other challenges.

Joining McKee was Hardiman; Smith concurred but disagreed with the majority’s conclusion that the evidence was admitted erroneously. Arguing counsel were defender Louise Arkel for the defendant and John Romano for the government.

Habeas expert: “Court errs in denying habeas corpus to immigrants”

The title of this post is the headline of this op-ed on Philly.com today by Professor Eric Freedman. The decision he’s criticizing is Castro v. U.S. Dep’t of Homeland Security, which I discussed here.

Freedman writes:

Regardless of how Congress chooses to label these mothers and children, they are still entitled to a judicial forum. The constitutional protection of habeas corpus forbids Congress from denying people on our soil access to the courts by legislatively announcing that they are not here. Permitting such legerdemain would leave the writ “subject to manipulation by those whose power it is designed to restrain.”

Two big new opinions for the civ pro nerds [updated]

The Third Circuit issued two published opinions today, both fascinating if you enjoy tricky civil procedure issues.

 

Hoffman v. Nordic Naturals — civil — affirmance — Fuentes

Imagine you file a suit in state court. The defendant removes the case to federal court and then urges the federal court to dismiss your suit on a procedural ground. You’re sure the federal court has no jurisdiction at all to hear the case and so must remand it. The district court agrees with the defendant that dismissal would be warranted on the procedural ground — and it agrees with you that it has no jurisdiction. So what should the district court do?

Before today, I would have said the answer was dead obvious — the district court has to remand because it lacks jurisdiction. Without jurisdiction, it can’t decide your case, no matter how good it thinks either party’s arguments are, and no matter whether those arguments go to the merits of your claims or instead rest on a procedural ground.

But today the Third Circuit reached the opposite conclusion: “The District Court was . . . permitted to ‘bypass’ the jurisdictional inquiry in favor of a non-merits dismissal on claim preclusion grounds,” because “a court is not required to establish jurisdiction before dismissing a case on non-merits grounds.” That rationale seems wrong to me.

Here’s how the issue arose: plaintiff Harold Hoffman brought class-action lawsuit #1 in state court. The defendants removed the suit to federal court pursuant to CAFA, which gives federal courts jurisdiction to hear class actions big enough to meet certain thresholds, including that the amount in controversy exceeds $5 million. The district court denied Hoffman’s remand motion because it held that the suit met CAFA’s thresholds, and then on the merits it dismissed the suit on the pleadings. (Having dismissed the suit on the merits, the court gave Hoffman a chance to amend his suit, which he didn’t do.)

Hoffman then filed suit #2, again in state court. His new claims were basically the same as his old claims, but this time he defined the class more narrowly. Said the Third Circuit, “The purpose of this change, was, it seems, to reduce the amount recoverable and therefore defeat federal jurisdiction.” The defendant again filed notice of removal, Hoffman sought remand because this time CAFA did not confer jurisdiction, and the district court dismissed suit #2.

Today, the Third Circuit affirmed. But, critically, the court did not hold that the district court had jurisdiction over suit #2. Instead, it held that the district court didn’t need to have subject-matter jurisdiction over the case — that is, the removal need not have been legal — if the court ends up dismissing on non-merits grounds, citing the Supreme Court’s 2007 Sinochem case. Sinochem held that “a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case.” In my view, Sinochem is night-and-day different from what the court does here. Sinochem was just about forum selection and efficiency, not about courts nuking cases they don’t have the power to hear.

The whole point of the second removal was to throw out the second suit based on the federal court’s view of the merits. If the federal court didn’t have jurisdiction over the second suit, then it shouldn’t be the one to decide the preclusive effect of its merits ruling in the first suit. Nor should it decide whether tactical gamesmanship in repackaging the second suit warranted its dismissal. Only a court that has jurisdiction over the second suit — here, the state court — should get to decide those things.

As the hypothetical I began this post with suggests, I read today’s opinion to mean that federal courts can decide and dismiss removed state-filed suits — even if the removal was patently illegal — any time they can find a non-merits basis for dismissal. Suffice to say such a rule would be a big deal.

The introduction to today’s opinion emphasizes that the plaintiff here is a “serial pro se class action litigant.” (See, e.g., this law firm’s web page entitled, “Have you been Sued by Harold Hoffman?”) That fact wasn’t relevant to the court’s legal reasoning, but its prominent mention in the opinion may help explain the outcome here. And, frankly, it isn’t easy to imagine the court being eager to grant a rehearing petition filed by that same serial-filing pro se attorney. That’s a shame, because I think today’s opinion does warrant rehearing.

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

 

UPDATE #1: After I posted the above, I was contacted by the losing party and ultimately retained to prepare a petition for rehearing in the case. I had no connection at all to the case at the time I wrote the post.

UPDATE #2: The same day the court issued its opinion, it also entered an order granting Nordic’s motion under FRAP 38 for sanctions and double its costs for filing an utterly frivolous appeal.

 

Wallach v. Eaton Corp. — civil — reversal — Krause

The Third Circuit issued a wonderfully cogent opinion today deciding a little point of antitrust procedure and a not-so-little point of class action procedure. The opinion’s introduction crisply explains:

In this case, we are called upon to determine, among other things, the fount and contours of federal common law applicable to the assignment of federal antitrust claims and the reach of the presumption of timeliness for motions to intervene as representatives of a class. Consistent with the Restatement of Contracts and the doctrines undergirding federal antitrust law, we hold that an assignment of a federal antitrust claim need not be supported by bargained-for consideration in order to confer direct purchaser standing on an indirect purchaser; such assignment need only be express, and that requirement was met here. We also hold that the presumption of timeliness, that is, the presumption that a motion to intervene by a proposed class representative is timely if filed before the class opt-out date, applies not only after the class is certified, as we held in In re Community Bank of Northern Virginia, 418 F.3d 277, 314 (3d Cir. 2005), but also in in the pre-certification context. Because the District Court failed to apply that presumption and the intervenors’ motion here was timely considering the totality of the circumstances, we conclude the District Court abused its discretion in denying their motion to intervene on that basis. Accordingly, we will reverse and remand for proceedings consistent with this opinion.

On the antitrust standing issue, the holding (antitrust claim assignments don’t require consideration) matters less than how the court got there. The court followed its prior precedent to conclude that the issue was controlled by federal common law. Since no precedent answered the question, the court then had to decide where to look for the content of federal common law. One side urged the court to look at the state law in all 50 states and adopt the prevailing approach; the other side urged it to follow the Restatement. The court decided that the Restatement was the right starting point and accepted the Restatement’s rule.

The class action timeliness-of-intervention rule has broad significance. The way the issue arose is that the defense sought to knock out the named plaintiff for lack of standing, other members of the putative class realized that the whole suit could be thrown out if the defense standing argument prevailed, so other putative class members moved to intervene but the district court said the intervention request was untimely. The Third Circuit disagreed for practical reasons:

[C]lass members would be compelled to intervene in every class action to protect their interests in the event the proposed class representatives are ultimately deemed inadequate”—giving rise to inefficiencies the class action device was designed to avoid  both before and after class certification. Denying the presumption to putative class members also could result in great inefficiencies and reductions in judicial economy in cases like the one before us, which would be dismissed after years of motion practice and discovery, only to be filed anew by plaintiffs who were unable to simply intervene and carry the motion for class certification through to its conclusion. Further, if the presumption of timeliness applied only to certified classes, then motions to intervene brought prior to class certification might be deemed untimely, even though those same motions would be timely if brought years later, after a class was certified.

(Internal quotation marks, alteration, and citation omitted.) Analyzing the timeliness of the motion to intervene itself, the court ruled that it was timely.

Joining Krause were Chagares and Scirica. Arguing counsel were Emmy Levens of Cohen Milstein for the appellants and Pratik Shah, of Akin Gump, for the appellees. On the appellee’s side alone, I count 22 lawyers on the brief from at least 6 household-name big firms. Fun fact: the lawyer who argued the losing side is co-head of Akin Gump’s Supreme Court and appellate practice; the lawyer who argued the winning side is an associate.

Judge Smith heading up judiciary space-trimming effort

The Judicial Conference posted a news release today which included this Third Circuit-related passage:

[T]he Conference received an update on its space reduction program, which was adopted by the Conference in 2013 as a Judiciary-wide cost saving measure. The key component of this effort is to reduce court space nationwide by three percent by the end of Fiscal Year 2018.  Judge D. Brooks Smith, chair of the Conference’s Space and Facilities Committee, reported to the Conference today that the courts have reached more than two-thirds of their overall target of reducing usable square footage by 870,305 square feet. This will result in an annual cost avoidance of approximately $15.5 million.

“In witnessing the commitment and follow-through by courts and court staff across the country, what has been most impressive is the spirit of cooperation, and sometimes even sacrifice, that has brought us to where we are now,” Judge Smith told the Conference. “All circuits have indicated that they plan to meet or exceed their circuit goals.”

The update also described pilot programs for prisoner e-filing and expanded intra-circuit judge-sharing.

New opinions — is the Third Circuit raising the bar for class certification again?

In re: Modafinil Antitrust Litig. — civil / class action — reversal — Smith

Today a divided Third Circuit panel vacated a district court order certifying a class in a pharmaceutical antitrust suit, announcing a new framework for analyzing the size of the class (“numerosity”). The majority directed that the numerosity inquiry “should be particularly rigorous when the putative class consists of fewer than forty members.” It ruled that the district court erred by placing too much weight on the late stage of the proceeding, directing that on remand the court should not take into account the sunk costs of litigation nor the risk of delay if certification were denied. The majority also held that the district court failed to “fully” explore whether class members could just join instead. The panel unanimously rejected the class defendants’ predominance arguments.

Judge Rendell dissented vigorously from the majority’s numerosity analysis, beginning thus:

Today, the Majority concludes that the able District Court judge abused his discretion by purportedly focusing on a consideration that we have never—indeed, by my research, no court has ever—stated it should not consider. How can that be? Furthermore, how can it be that the Majority mischaracterizes the late stage of the proceedings as being the focus of Judge Goldberg’s ruling when his reasoning actually focuses on the considerations that our case law dictates it should? Also how can it be that in analyzing judicial economy district courts are prohibited from considering the stage of the proceedings? I am perplexed. I am similarly perplexed as to why the Majority is directing the District Court on remand to figure out whether joinder is practicable when the appellants have failed to make that case themselves. I therefore respectfully dissent from part III.A of the Majority’s opinion.

This was Rendell’s second major dissent in two weeks.

Joining Smith was Jordan, with Rendell dissenting in part. Arguing counsel were Bruce Gerstein of Garwin Gerstein for the appellees, and Rowan Wilson of Cravath Swaine and Douglas Baldridge of Venable for the appellants.

UPDATE: news coverage on PennRecord.com, describing the court’s ruling as “surprising,” here.

 

Carpenters Health & Welfare Fund v. Management Resource Sys. — civil / labor — reversal — McKee

The Third Circuit today reversed a district court order dismissing a suit challenging a company’s failure to make contributions to employee funds.

Joining McKee were Fisher and Greenaway. Arguing counsel were Stephen Holroyd of Jennings Sigmond for the appellants and Walter Zimolong III for the appellees.

 

In re: Asbestos Pros. Liab. Litig. — civil — reversal in part — Scirica

In 1999, the Supreme Court described asbestos litigation as “elephantine.” Over a decade and a half later, the elephant is still lumbering along.

A worker exposed to asbestos died of lung cancer, and his estate sued the corporation whose equipment contained the asbestos he had been exposed to. In a fact-bound ruling applying Indiana law, the Third Circuit today affirmed dismissal of claims related to some of the equipment but reversed dismissal of claims related to other equipment.

Joining Scirica were McKee and Ambro. Arguing counsel were Robert McVoy from Illinois and Christopher Conley from Georgia.

Three new opinions

Associated Builders v. City of Jersey City — civil — reversal — Krause

Jersey City, NJ, offers tax exemptions to developers, but only if they meet certain labor conditions including using union labor, rejecting strikes and lock-outs, and a set percentage of local hiring. Today, the Third Circuit held that, in enacting the labor conditions, the city was acting as a regulator not a market participant. The ruling reversed the district court and meant that the conditions were reviewable for pre-emption and dormant-Commerce-Clause violation.

Joining Krause were Chagares and Scirica. Arguing counsel were Russell McEwan of Littler Mendelson for the appellants, Zahire Estrella for the city, and Raymond Heineman of Kroll Heineman for an intervenor.

 

Goodwin v. Detective Conway — civil rights — reversal — Fuentes

Rashied Goodwin sued police officers for false imprisonment and malicious prosecution after he was arrested; he alleged that the officers should have known he was innocent because they had a booking sheet indicating he was in jail at the time of the crime. The defendants moved for summary judgment based on qualified immunity, the district court denied the motion, and today the Third Circuit reversed. The court reasoned that the booking sheet did not show that Goodwin was in custody at the relevant time. (I was confused when I read the opinion because the key dates are replaced with empty brackets; I missed fn.6 explaining these are redactions requested by the parties.)

Joining Fuentes were Chagares and Restrepo. Arguing counsel were Eric Pasternack for the officers and Catherine Aiello of Lowenstein Sandler for Goodwin.

 

US v. Adeolu — criminal — affirmance — Vanaskie

The Third Circuit affirmed a criminal sentence, holding that the USSG 3A1.1(b)(1) vulnerable-victim sentencing enhancement does not require actual harm to the victim, only a nexus between the victim’s vulnerabilty and the crime’s success.

Joining Vanaskie were Greenaway and Shwartz. Arguing counsel were Karina Fuentes of the FPD for the defendant and AUSA Jose Arteaga for the government.

 

Circuit establishes task force on eyewitness identifications

The Third Circuit announced this afternoon that it has created the Third Circuit Task Force on Eyewitness Identifications. The order creating the task force was signed by Chief Judge McKee. The task force will:

make recommendations regarding jury instructions, use of expert
testimony, and other procedures and policies intended to promote reliable practices
for eyewitness identification and to effectively deter unnecessarily suggestive
identification procedures, which raise the risk of a wrongful conviction.

* * *

In order to discharge its responsibilities, the Task Force shall study the
available research pertaining to best practices for criminal investigations and
courtroom procedures, including without limitation: protocols for obtaining
identifications, expert testimony during trial, jury instructions, and any other area
pertaining to eyewitness identifications and testimony that can minimize the risk of
wrongful convictions.

The task force will issue a final report within 9 months, unless extended. The report will then be distributed to the district judges within the circuit.

The task force is comprised of 17 members: 4 CA3 judges (McKee, Smith, Shwartz, Restrepo), 6 district judges, a magistrate judge, a federal defender, a US Attorney, an FBI agent, a state AG, and two academics. McKee and EDPA Judge Goldberg are the co-chairs.

The announcement comes just weeks after the court’s en banc ruling in Dennis v. Secretary, in which the court affirmed habeas relief in a capital case and Chief Judge McKee wrote an extraordinary 54-page concurrence to “underscore the problems inherent in eyewitness testimony.”

UPDATE: the Court posted this press release, too.

New opinion — a public-sector-employment affirmance

Mancini v. Northampton Co. — civil / employment-civil rights — affirmance — Restrepo

The Third Circuit today affirmed a district court’s rulings in an employment dispute caused when new local Republican leaders fired a county solicitor who was a Democrat. At trial, the jury ruled in favor of the fired employee on her claims against the county but not those against the individual leaders. The court summarized the key issue thus:

This case requires us to consider whether there is an exception to the ordinary requirements of procedural due process when a government employee with a protected property interest in her job is dismissed as part of a departmental reorganization that results in the elimination of her position. We have not previously considered this so-called “reorganization exception.” We hold that a reorganization exception to constitutional procedural due process cannot apply as a matter of law where, as here, there is a genuine factual dispute about whether the reorganization was pretext for an unlawful termination.

The opinion’s introduction refers to the district judge below as “the able trial judge,” a generous tip-of-the-hat in an opinion authored by a judge who until this year sat in the same district.

Joining Restrepo were Fuentes and Chagares. Arguing counsel were Patrick Reilly of Gross McGinley for the appellee/cross-appellant and David Schwalm of Thomas Thomas & Hafer for the appellant/cross-appellee.

UPDATE: early news coverage here.

What the 2016 presidential election means for the Third Circuit

Much has been written about how the upcoming presidential election will impact the U.S. Supreme Court, but the election’s impact on the circuit courts has gotten much less attention. Liberal advocacy group Alliance for Justice posted this useful analysis back in May, and Russell Wheeler’s excellent research on circuit vacancies, such as here and here, also sheds light on what the election means for the circuits. [Update: also Matthew Yglesias’s interesting piece on Vox.com here.]

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency [CORRECTION: he became eligible in 2014]. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.

 

The government confesses error and the Third Circuit reverses … after the defendant’s lawyer filed an Anders brief

The Third Circuit issued a remarkable unpublished opinion today in a criminal appeal, US v. Parsons, link here. The opinion is by Judge Barry, joined by Judges Fuentes and Shwartz.

I’m not sure I can tell the story any more clearly than the opinion does, so here it is:

In Anders, the Supreme Court emphasized that “[Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability.” 386 U.S. at 744. An attorney may seek permission to withdraw if he finds a case to be “wholly frivolous” after a “conscientious examination” of the record; such request must, however, “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. If the court agrees that the case is wholly frivolous, “it may grant counsel’s request to withdraw and dismiss the appeal,” but, “[o]n the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id.

* * *

In this case, counsel’s brief was, at least technically, inadequate under Anders. Although counsel listed the issue of “[i]nterpretation and application” of § 4A1.2(c)(1) in his statement of issues, he addressed the issue only in two footnotes that fail to explain why it was frivolous. (See Anders Br. at 9-10 n.2, n.3.) He likewise devoted only one sentence to the denial of a reduction for acceptance of responsibility, the second issue raised by Parsons in his pro se brief. (See id. at 19.) Simply stated, counsel failed to meaningfully deal with the two issues later raised by Parsons, such that we can be assured that he has considered them and found them “patently without merit,” see Marvin, 211 F.3d at 781; indeed, the Government itself acknowledges that a non-frivolous issue exists.

Parsons’ argument with respect to § 4A1.2(c) is, as the Government recognizes, non-frivolous. Section 4A1.2(c) provides that certain sentences, including sentences for a disorderly conduct offense, are included in the criminal history calculation only if “the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days” or if the prior offense was “similar to an instant offense.” Here, according to the PSR, Parsons’ 2006 disorderly conduct offense resulted in no punishment beyond the payment of fines and costs, and it is not similar to the instant firearms offenses. See U.S.S.G. § 4A1.2 cmt. n. 12(A). As the Government, to its credit, recognizes, this offense was erroneously counted, and the additional criminal history point bumped Parsons up into Criminal History Category V, resulting in a Guidelines range of 140 to 175 months. Had Parsons correctly been placed in Category IV, his Guidelines range would have been 121 to 151 months. His sentence, a total of 160 months’ imprisonment, could well have been lower had the Court calculated the correct Guidelines range.

The court vacated the sentence and remanded for resentencing without the erroneously-applied criminal history point.

As embarrassing appellate mistakes go, it doesn’t get much worse than filing an Anders brief and then having the court reverse under plain error. The opinion does not identify the attorney by name, but the docket indicates that the Anders brief was filed by Roland B. Jarvis, a Philadelphia lawyer appointed by the court. The AUSA praised by the court is Joseph LaBar.

I applaud the government and the court here. It would have been only human to pay less attention to the pro se brief after the defendant’s own lawyer had certified that the issues were all wholly frivolous, but instead the prosecutor and the judges here did their jobs.

I do have a concern about the court’s ruling, though. The court chose to remand now instead of appointing new counsel and allowing supplemental briefing, and it explained that it did so because “no one, including defense counsel in his effort to comply with the strictures of Anders, even obliquely refers to any potential issue as to the conviction itself.” Is the court saying it is confident that there are no other appealable errors, besides the one the pro se defendant found — and that the basis for this confidence is that no such errors were found by (1) the lawyer who filed the erroneous Anders brief, (2) the pro se defendant, or (3) the prosecution? If so, that confidence seems questionable.

And after the government confessed error but before today’s ruling, the defendant apparently asked the court to appoint new counsel for him, resulting in a clerk order which stated in part:

If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the Court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the Clerk to discharge current counsel and appoint new counsel. As appellant’s request for appointment of new counsel is an inherent part of the Court’s determination when presented with a case submitted pursuant to Anders v. California, 386 U.S. 738 (1967), no action will be taken on appellant’s request.

This order reinforces my uncertainty about whether remand for resentencing without appointment of counsel and supplemental briefing was the right disposition here.

Anyway, a very interesting case.

 

New opinion — divided panel rejects waiver argument and orders arbitration

Chassen v. Fidelity Nat’l Financial — civil / arbitration — affirmance — Smith

A divided Third Circuit panel today ruled in favor of a civil defendant seeking to compel individual arbitration (that is, non-class arbitration; the opinion refers to it as bipolar arbitration). The court held that the defendant did not waive its arbitration-clause defense — even though it did not raise the defense in two and a half years of expensive litigation below, and even though it could have but did not raise the arbitration defense to obtain class arbitration the whole time — because an effort to compel individual arbitration would have been futile under then-existing law. The majority ruled that the factors it previously had announced for deciding when a party waived an arbitration defense did not control when the sole reason for the delay in asserting the defense is futility.

Judge Rendell — who, as I’ve observed, has been a major force in the court’s recent en banc litigation — dissented. Her opinion began:

The majority’s opinion is flawed for a clear and obvious reason: it relies on caselaw that has no application here. Therefore, I must respectfully dissent.

In Muhammad v. County Bank of Rehoboth Beach, the New Jersey Supreme Court held that “the presence of the class-arbitration waiver in Muhammad’s consumer arbitration agreement render[ed] that agreement unconscionable.” 912 A.2d 88, 100 (N.J. 2006). Yet, despite the lack of a class arbitration waiver in the arbitration clauses here, the majority holds that a New Jersey court in 2009, at the outset of this case, would have found Muhammad controlling here. I reject that view, and urge you to read Muhammad and the actual arbitration clauses at issue here. Doing so will lead inexorably to one conclusion: this case is not Muhammad, and a motion by the Defendants in 2009 to compel arbitration thus would have been anything but futile. Moreover, the majority has expanded the concept of futility beyond what we as a court should recognize.

Seems like a good bet for a petition for en banc rehearing.

Joining Smith was Roth, with Rendell dissenting. Arguing counsel were Michael Quirk of William Cuker for the appellants and Michael O’Donnell of Riker Danzig for the defendant.

 

Fractured en banc court restores two felons’ gun rights

Suarez v. Attorney General — civil / 2nd Amendment

The en banc Third Circuit ruled today that the federal statute criminalizing gun possession by convicted felons violates the Second Amendment as applied to the two challengers here. It’s the court’s most closely divided en banc ruling since Chief Judge McKee became chief.

On the ultimate outcome, the court split 8 to 7 in favor of the challengers.  The 8 were Ambro with Smith and Greenaway, plus Hardiman with Fisher, Chagares, Jordan, and Nygaard. The 7 were Fuentes with McKee, Vanaskie, Shwartz, Krause, Restrepo, and Roth.

No one rationale commanded a majority of the court. As Eugene Volokh (whose work is cited repeatedly in today’s opinion) ably explains in a blog post here, Hardiman’s 5 embraced a broader view of the Second Amendment, Ambro’s 3 a narrower one.

It’s a fascinating vote split. The court’s most conservative judges voted together, but the moderate and liberal votes were more surprising, which reinforces a broader trend I flagged last year.

The 8-to-7 vote also invites some interesting what-ifs. Judge Rendell went senior over a year ago, and President Obama’s nomination of Rebecca Haywood has languished for almost six months now. If Rendell or Haywood were active judges today, would the en banc court have split down the middle, leaving no precedential decision? It’s possible.

Volokh writes that if the government asks the Supreme Court to grant certiorari, “it’s likely that the court will agree to hear the case.”

Arguing counsel were Patrick Nemeroff for the government, and Alan Gura of Gura & Possessky for the challengers.

 

New opinions — Bridgegate disclosure, taxpayer standing, and antitrust standing

NJ Media Group v. United States — civil — reversal — Jordan

The Third Circuit today vacated a district court order that had required disclosure of the names of the unindicted co-conspirators in the NJ Bridgegate scandal. The opinion explained, “Although the appeal arises out of a matter of high public interest, the issue presented is basic and undramatic.” The court ruled that a prosecution letter identifying the co-conspirators should be treated like criminal discovery, not a bill of particulars, and thus was not subject to public disclosure.

Joining Jordan were Ambro and Scirica. Arguing counsel were Jenny Kramer of Chadbourne & Parke for the appellant, Bruce Rosen of McCusker Anselmi for media groups seeking disclosure, and U.S. Attorney Paul Fishman for the government.

Early news coverage of the opinion by Ted Sherman on NJ.com is here.

 

Nichols v. City of Rehoboth — civil — affirmance — Fisher

A divided Third Circuit panel today held that a taxpayer lacked standing to sue because she failed to show any illegal use of taxpayer funds.

Fisher was joined by Rendell; Cowen dissented. Arguing counsel were David Finger of Finger & Slanina for the appellant and Max Walton of Connolly Gallagher for the appellees.

 

Hartig Drug Co. v. Senju Pharma. — civil / antitrust / class action — reversal — Jordan

The Third Circuit today ruled that a district court erred when it dismissed an antitrust class action suit under F.R.Civ.P. 12(b)(1) on standing grounds, holding that antitrust standing is not an issue of subject-matter jurisdiction. The appeal arose out of an antitrust suit alleging wrongful suppression of generic competition in the sale of medicated eyedrops. The winning argument was not made by the appellant, prompting the court to write, “Remarkably, Hartig neglects to address the argument at all, except to acknowledge that amici have raised it.” The opinion has some sharp words (“simply not so,” “attempt to change the discussion,” “wholly new argument”) for the appellees, too. Quite a victory for amici.

Joining Jordan were Ambro and Greenberg. Arguing counsel were Brent Landau of Hausfeld for the appellant and M. Sean Royall of Gibson Dunn for the appellee.

 

Addie v. Kjaer — civil — affirmance in part — Fisher

The Third Circuit largely upheld a district court’s rulings under Virgin Islands law granting pre- and post-judgment interest but denying attorney’s fees. The court ruled that certain prejudgment interest should have been paid at a statutory rate.

Fisher was joined by Krause and Roth. Arguing counsel were former Rendell clerk Robert Palumbos of Duane Morris for the appellants and Sherry Talton of Texas and Maria Hodge of the Virgin Islands for the appellees.

Tanker-spill case heading back to Third Circuit after $180M verdict

Linda Loyd has this story today on Philly.com, headlined “Judge makes $120M ruling against Citgo in massive 2004 Delaware River spill.” The case arose when a tanker ship struck an old anchor submerged near a refinery dock and spilled more than a quarter of a million gallons into the Delaware River. Loyd reports that the losing defendant has already filed a notice of appeal to the Third Circuit. The case is USA v. Citgo Asphalt Refining Company.

The Third Circuit decided an appeal in the case in 2013, captioned In re: Frescati Shipping, when it vacated a district court ruling in favor of the defendants in a 59-page slip op. that it amended three times. The 2013 opinion noted that future appeals would be referred to the same panel (Ambro, Greenaway, and O’Malley Fed. Cir. by designation).

New opinion — Court affirms denial of qualified immunity for teacher who let stranger take kindergartner

L.R. v. School Dist. of Phila. — civil rights — affirmance — Fuentes

A kindergarten teacher allegedly allowed a total stranger to remove one of his students from the classroom. According to the complaint, the stranger went right to the classroom and asked to take the student, the teacher asked the stranger to show identification and verification that the student had permission to leave school, and the stranger could not. Yet the teacher let his student leave with the stranger anyway, and later that day the stranger sexually assaulted the child. The child’s parent’s sued the teacher and the school district alleging denial of substantive due process, and the district court ruled that the teacher was not entitled to qualified immunity. Today, the Third Circuit affirmed: “we conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger.”

Joining Fuentes were Krause and Roth. Arguing counsel were Jeffrey Scott of Archer and Greiner for the teacher and district and Charles Becker of Kline & Specter, president-elect of the Third Circuit Bar Association, for the parent.

I shook my little fist for naught

I’m sorry to report that the Third Circuit this week denied panel and en banc rehearing in Coulston v. Superintendent. Back in June I blogged about the unpublished panel opinion in a long post entitled, “A Friday-morning shaking of my little fist against perceived injustice.” (I actually got so wound about it after my blog post that I did something I’ve never done before: I wrote poor Mr. Coulston and offered that he could tell the court I was willing to be appointed to do a rehearing petition for him, which he did, to no avail.)

Cert petition? Anyone?

En banc court — minus two judges listed as voted on rehearing, including the panel author — reverses in Chavez v. Dole Food

Chavez v. Dole Food — civil — reversal — Fuentes

The en banc Third Circuit today unanimously reversed a district court order dismissing a suit by Central American farmworkers over alleged pesticide exposure. The prior panel opinion had come out the other way, with Nygaard joined by Greenaway in the majority and Fuentes dissenting.

Needless to say, it is unusual to see a unanimous en banc ruling that reaches a different outcome than the panel majority did. So what happened? Two things, both interesting.

First, Greenaway switched sides. He joined Nygaard’s panel opinion in favor of Dole, but today he joins the en banc court ruling against Dole. He did not write separately to explain his switch.

Second, Nygaard did not participate. He wrote the panel opinion, and the order granting en banc rehearing stated he would participate, but the docket shows he did not participate in oral argument and he was not a member of the en banc panel today. Also, Hardiman was listed as participating in the en banc vote but was not on the en banc panel for argument or decision.

So, why did Nygaard and Hardiman not participate? Answer: I don’t know. Neither today’s opinion nor the docket entries say.

This is a case with a lot of blue-chip-corporation parties like Dow Chemical and Shell Oil, and it would not be surprising if some of the judges owned stock in one of them and thus had to recuse. Now, it would be surprising to me if such a conflict went unrecognized until after the en banc ruling. (But as I mentioned recently, during now-Justice Alito’s Scotus confirmation proceedings, then-Chief Judge Scirica said in 2005 that CA3 judges had been listed by mistake on en banc corams many times. That could explain well Hardiman but not Nygaard.)

For Nygaard, no potential financial conflicts jump out at me on a quick glance at his 2012 financial disclosure, the most recent of his posted on judicialwatch. But what matters is what he owned in 2016, not 2012, and that is not publicly available. Bottom line, if he recused after writing the panel opinion, I can’t tell why. (It does not appear to be health-related since, for example, his is sitting on argument panels next week.) In any event, his withdrawal is unusual.

As to Hardiman, he disclosed dividend income from Dow Chemical in his 2012 disclosure, also the most recent disclosure up on Judicialwatch, although that does not necessarily mean he still did at the time of this en banc case.

Anyway, I’ve gotten all sidetracked on the composition of the court here and haven’t said a thing about the substance of the opinion. From the introduction (footnote omitted):

Our resolution of this appeal is therefore threefold. First, we conclude that the Delaware District Court abused its discretion under the first-filed rule by dismissing the plaintiffs’ claims with prejudice. Second, we conclude that the Delaware District Court erred by refusing to transfer the plaintiffs’ claims against Chiquita Brands International to another forum. And third, we conclude that the timeliness dismissals entered by the Louisiana District Court do not create a res judicata bar to the plaintiffs’ Delaware suits. As these cases come to us today, there is a serious possibility that no court will ever reach the merits of the plaintiffs’ claims. More than twenty years after this litigation began, we think that outcome is untenable—both as a matter of basic fairness and pursuant to the legal principles that govern this procedurally complex appeal.

Joining Fuentes were McKee, Ambro, Smith, Fisher, Chagares, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. Arguing counsel were Jonathan Massey of Massey & Gail for the appellants and Andrea Neuman of Gibson Dunn and Steven Caponi (formerly) of Blank Rome for the appellees.

“Although we will affirm … we do so with some reluctance…. [T]he circumstances of this case appear to exemplify what can be described as a flaw in our system of justice”

Curry v. Yachera — civil rights — affirmance– Chagares

The quote that forms the title of this post comes from the introduction of today’s notable opinion upholding the dismissal of a civil rights complaint.

The court summarizes the facts underlying the suit like this (appendix cites and footnotes omitted):

In the fall of 2012, Curry read a newspaper article that stated there was an outstanding warrant for his arrest, related to a theft at a Wal-Mart store in Lower Macungie Township, Pennsylvania. Wal-Mart security employee Kerrie Fitcher identified Curry. Curry insists that he had never been in that Wal-Mart store. Curry called the Wal-Mart store and spoke to a security employee, John Doe, who refused to review the store surveillance video. Curry then called the Pennsylvania State Police and spoke to Trooper Brianne Yachera. Yachera informed Curry that he was going to jail and that the courts would “figure it out.”

On October 29, 2012, Curry was arrested and charged with (1) theft by deception and (2) conspiracy. Unable to afford bail, Curry was jailed. On November 14, 2012, while Curry was still in jail, he was charged with “theft by deception – false imprisonment” by Exeter Township Police Detective Richard McClure. This charge was separate and apparently unrelated to the charges brought by Yachera. Two months later, McClure met Curry in prison, admitted Curry was innocent of the November 14 charges, apologized, and said he would do whatever he could to help. In or about February 2013, McClure’s charges against Curry were dropped, but he remained in jail on the charges brought by Yachera. Curry was told he would need to wait until September 2013 for the case to proceed. During his imprisonment, Curry missed the birth of his child and lost his job. Curry feared losing his home and motor vehicle. He decided to plead nolo contendere to the remaining charges, theft by deception and conspiracy. Following his plea, he was released and returned home.

The court’s analysis begins with this remarkable passage (footnotes omitted):

The broader context of this matter is disturbing, as it shines a light on what has become a threat to equal justice under the law. That is, the problem of individuals posing little flight or public safety risk, who are detained in jail because they cannot afford the bail set for criminal charges that are often minor in nature. One recent report concluded that “[m]oney, or the lack thereof, is now the most important factor in determining whether someone is held in jail pretrial” and that “the majority of defendants cannot raise the money quickly or, in some cases, at all.” By way of example, in New York City in 2013, fifty-four percent of those jailed until their cases were resolved “remained in jail because they could not afford bail of $2,500 or less.” It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail. Further, those unable to pay who remain in jail may not have the “luxury” of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.

“Curry’s inability to post bail,” the court observed, “deprived him not only of his freedom, but also of his ability to seek redress for the potentially unconstitutional prosecution that landed him in jail in the first place.” The court denied the malicious prosecution claim because his conviction stood. The court did rule that his malicious prosecution claims should have been dismissed without prejudice because his claim will not accrue unless and until his conviction is reversed.

Joining Chagares were Fuentes and Greenberg. The case was decided without oral argument.

 

Auto-Owners Insurance Co. v. Stevens & Ricci — insurance — affirmance — Jordan

A divided Third Circuit panel affirmed a district court ruling in favor of the insurance company in a coverage dispute.

Joining Jordan was Hardiman; Greenaway dissented, arguing that the majority misapplied a rule against aggregation. Arguing counsel were David Oppenheim from Illinois for the appellant and Timothy Tobin from Minnesota for the appellee.

 

Court grants oral argument in forced-decryption appeal [updated]

Orin Kerr posted here today at Volokh Conspiracy that a Third Circuit panel of Judges Jordan, Vanaskie, and Nygaard will hear oral argument September 7 in an appeal involving Fifth Amendment self-incrimination limits on ordering a criminal suspect to decrypt his computer hard drives.

Back in June, Kerr had this thorough and interesting post explaining the core legal issue and expressing his hope that the Third Circuit rejects the Eleventh Circuit’s Fifth Amendment “foregone conclusion” analysis.

Update: here is news coverage of the oral argument by Chris Palmer in the Philadelphia Inquirer.

New opinions in three civil cases

Black v. Montgomery County — civil rights — reversal — Chagares

The Third Circuit today reversed a district court’s grant of summary judgment in favor of defendants in a remarkable civil rights suit, holding that the plaintiff was seized for purposes of her Fourth Amendment malicious-prosecution claim and that she stated a valid due process claim for fabricated evidence even though she was acquitted at trial. The case arose from what the plaintiff alleged was a badly bungled fire investigation and prosecution; the accused was found not guilty of arson after the jury deliberated less than 40 minutes.

Joining Chagares were Krause and Scirica. Arguing counsel for the appellant was Michael Schwartz of James, Schwartz & Associates; for the appellees, Carol Vanderwoude of Marshall Dennehey, Philip Newcomer of the Montgomery County Solicitor’s Office, and Claudia Tesoro of the Office of the Attorney General.

 

DePolo v. Board of Supervisors — civil — dismissal of appeal — McKee

The Third Circuit held that a ham radio operator’s federal suit challenging denial of permission to build a 180-foot radio tower (!) was precluded by his failure to appeal a prior adverse ruling by a township zoning appeals board.

Joining McKee were Ambro and Scirica. Arguing counsel were Fred Hopengarten of Massachusetts (whose solo telecom practice focuses on antenna and tower issues and whose website includes an image of his Third Circuit bar admission certificate) for the appellant, and Maureen McBride of Lamb McErlane and John Larkin of Gawthrop Greenwood for the appellees.

 

NY Shipping Assoc v. Waterfront Comm’n — affirmance — Nygaard

The Third Circuit upheld district court rulings upholding the NY Waterfront Commission’s power under an interstate compact to require non-discriminatory hiring policies.

Joining Nygaard were Fuentes and Roth (the case was argued on July 9, nine days before Fuentes went senior, so the panel composition comported with 3d Cir. IOP 3.1 even though all three judges were senior at the time the opinion issued). Arguing counsel for various appellants were Donato Caruso of New York and Kevin Marrinan of New York, and Peter Hughes of Ogletree Deakins; arguing counsel for appellees was Phoebe Sorial of the NY Harbor Waterfront Commission.

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

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

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

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

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

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

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

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

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

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

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

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

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

The new 3CBA newsletter is out, featuring a tribute to Judge Sloviter

I just received the August 2016 issue of On Appeal, the newsletter of the Third Circuit Bar Association. The new issue features a warm tribute to Judge Dolores Sloviter, who recently took inactive status, by her former clerk Nancy Winkelman. Winkelman is now a top appellate practitioner at Schnader and President of the American Academy of Appellate Lawyers. Winkelman writes:

. . . I have been so grateful to work with and come to know this most extraordinary jurist: a brilliant intellect, with an extraordinary work ethic; a courage, strength, and independence born of upbringing, character, and necessity; a drive always for the best in herself and everyone around her; a deep commitment to justice and to the judicial system; and that unique and most precious combination of grit and heart.

And, just as Judge Sloviter saw something in me that others may not have seen thirty years ago, so she has given me the opportunity to see something in her. Like many brilliant women of her generation who would come to succeed in a male profession, circumstances required Judge Sloviter to develop a tough exterior. She is of the small cadre of women who were the first in their fields; who were the only women in the room for far too long; who were always surrounded by men who, even when they had good intentions (and many did not), could not possibly have left their prejudices and stereotypes at the door.

And:

Appointed to the Third Circuit Court of Appeals by President Carter in 1979, Judge Sloviter was the first woman ever to serve as a judge on that Court. She was the first (and so far only) female Chief Judge of the Third Circuit. In fact, she is only the fourth woman in the entire country ever to serve as a Circuit Chief Judge at all. Judge Sloviter authored an astounding 808 precedential opinions in her almost 40-year tenure on the Court of Appeals, shaping the law in numerous areas, including antitrust and the First Amendment.

A fierce advocate for diversity and inclusiveness, as Chief Judge (a position she held from 1991 to 1998), Judge Sloviter created the ground-breaking Task Force on Equal Treatment in the Courts to examine racial and gender bias for the Third Circuit. She opened the Third Circuit Conference to all lawyers for the first time ever (a tradition that continues to this day). And she supported women and work-life balance in numerous ways, including offering part-time law clerk positions to working mothers.

It’s a lovely piece worth reading in full.

Also in this issue are detailed write-ups of State National by Reginald Sainvil of Reed Smith and Roberts v. Ferman by former Fisher clerk Devin Misour of Farrel & Reisinger.

The current On Appeal is not yet available on the 3CBA website, but you can download older issues at this link.

And if you practice in the Third Circuit and you’re not a 3CBA member yet, get on it. Dues are just $40, you can join here.

Circuit hiring staff attorneys to start next year

The Third Circuit today posted a hiring announcement on its website to hire four or more term staff attorneys. The term is one or two years (“firm commitment”) starting fall of 2017. Application closing date is October 10.

The announcement describes the positions thus:

In the Third Circuit, approximately thirty 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.

Primary staff attorney duties include:
• Developing expertise in habeas corpus, immigration, civil rights and constitutional law,
appellate jurisdiction, and federal civil and criminal procedure;
• Gaining familiarity with state and territorial laws of the Third Circuit;
• Drafting memoranda, per curiam opinions, and orders for the judges;
• Responding to questions from judges concerning individual cases, as needed; and
• Managing assigned cases.

The former Third Circuit staff attorneys I’ve met (a) are freakishly smart, and (b) have super-duper valuable insight into the court’s workings. These openings certainly will draw top-notch applicants.

New opinion — Third Circuit clarifies authentication of social media content

US v. Browne — criminal — affirmance — Krause

The lucid introduction to today’s opinion affirming in a criminal appeal:

The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence—a prerequisite to admissibility at trial. Appellant Tony Jefferson Browne was convicted of child pornography and sexual offenses with minors based in part on records of “chats” exchanged over Facebook and now contests his conviction on the ground that these records were not properly authenticated with evidence of his authorship. Although we disagree with the Government’s assertion that, pursuant to Rule 902(11), the contents of these communications were “self-authenticating” as business records accompanied by a certificate from the website’s records custodian, we will nonetheless affirm because the trial record reflects more than sufficient extrinsic evidence to link Browne to the chats and thereby satisfy the Government’s authentication burden under a conventional Rule 901 analysis.

The court appears to split with the Fourth Circuit over whether Facebook pages are self-authenticating, see slip op. 19 n.8. The opinion also addressed admissibility. It held that the chats were admissible as party-opponent admissions, except for one statement that should not have been admitted but the error was harmless.

Joining Krause were Fisher and Roth. Arguing counsel were Everard Potter for the government and Omodare Jupiter for the defendant.

What this world needs is more circuit blogs

When I started this blog in 2014, there weren’t any blogs quite like it. There still aren’t. Someone should start another!

When I was scheming about launching a Third Circuit blog, I was inspired by Tom Goldstein‘s Scotusblog. (The name at the top of the page, CA3blog, is a deliberate nod to Scotusblog.) I was inspired by Scotusblog in a few distinct ways:

  • Scotusblog is mind-bendingly good. It helped challenge me to try to make something that super-smart readers (you!) actually wanted to read.
  • I believe Scotusblog (along with Goldstein’s own practice) helped usher in the current era of Supreme Court specialists, and I hoped my blog could help do the same at the circuit level. Federal appellate specialists can do better work, and, well, the prevailing level of practice in the circuit courts has plenty of room to improve.
  • Scotusblog didn’t seem to hurt Goldstein’s career trajectory any, and selfishly I figured a blog might do me some good, too. I was a more-or-less unknown young lawyer, starting a solo practice far from where I went to law school and farther still from the circuit where I’d clerked. Yet here I was, dreaming of building something that no one else was delusional enough to try, a circuit-specialist solo practice. I hoped the blog would inch my delusion closer to reality.

I know I’m not the only one who has goals like that. And while it’s not for me to say whether I’ve made an inch of headway towards any those lofty aims, a few concrete signs of progress already: a cite in a Third Circuit opinion, quotes in the New York Times and Washington Post, and steady readership growth.

So, here’s hoping this blog will help to inspire someone out there to start something similar in another circuit. (Or here! Plenty of room!)

A notable non-precedential immigration case, highlighting an “unfortunate mistake” by government counsel

In a non-precedential opinion today in Chang-Cruz v. AG, the Third Circuit ruled in favor of an Ecuadoran citizen legally in the U.S. who argued that he’s eligible for cancellation of removal because his state convictions for drug-trafficking-related acts near a school were not aggravated felonies. Judge Krause wrote the opinion, joined by Judges Ambro and Nygaard.

Any pro-petitioner immigration ruling is noteworthy, but the end of today’s opinion is particularly interesting:

In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering “what effect, if any, Descamps has on this immigration case.” J.A. 619. Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal. These were issues well outside the scope of our remand. See Pareja v. Att’y Gen., 615 F.3d 180, 197 (3d Cir. 2010). Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in “obstructionism” by opposing the Government’s remand to the IJ to consider the plea transcript. See J.A. 879. It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation. We trust that this was an unfortunate mistake that will not be repeated.

 

New opinion — Third Circuit rejects copyright infringer’s appeal

Leonard v. Stemtech International — civil — affirmance, mostly — Shwartz

A “stem cell photographer” sued a nutritional-supplement company for copyright infringement. He took black-and-white photographs of stem cells through electron microscopes and then colored them in, at a time when few others were able to. The company wanted to use two of his pictures in its magazine but thought his $950 licensing fee was too high, so it sent him $500 and used the images, not just in its magazine but in many other marketing materials. After a trial, the jury returned a verdict in the photographer’s favor for $1.6 million. The company appealed the denial of its new-trial motion on secondary liability and various damages and fees grounds, and Leonard appealed the denial of prejudgment interest and other points. Today the Third Circuit affirmed on all grounds except that it vacated the order denying prejudgment interest. The court found many of the company’s arguments waived for failure to object below or develop them on appeal.

The slip opinion includes the two stem-cell images at issue. The Third Circuit very rarely includes visual images in the bodies of its opinions, but I think it’s a great idea and hope the court does it more often.

Joining Shwartz were Fuentes and Restrepo. Arguing counsel were Kathleen Kushi Carter of Hollins Law for the photographer and Jan Berlage of Gohn Hankey for the company.

Rendell’s role in Third Circuit en banc cases, and another look at whether the court uses en banc rehearing ideologically

I posted here about yesterday’s blockbuster capital-habeas en banc ruling in Dennis v. Secretary. Here are a couple thoughts on what Dennis can tell us about the dynamics of the court.

Rendell’s outsized role in en banc cases

Often en banc opinion assignments in the Third Circuit are just based on panel assignments — that is, if an en banc majority member wrote a panel opinion, then that judge normally writes the en banc majority opinion. But in Dennis no judge in the en banc majority was on the original panel, because all three panel members were en banc dissenters. So Chief Judge McKee (the ranking judge in the majority and thus the majority authorship assigner) had more latitude than usual in choosing who to assign the opinion to, and he picked Rendell. I see that as the latest sign of the great esteem in which she is held by her colleagues on the court.

Judge Rendell’s pivotal role in the current court’s en banc cases goes beyond yesterday’s case. The court has decided 4 en banc cases in the past 12 months (Lewis, Langbord, NCAA, and Dennis), and Rendell wrote the majority opinion in 3 of the 4! In the fourth, she wrote the dissent. Of the court’s 22 en banc cases decided since McKee became Chief in 2010, Rendell wrote for the court five times — more than any other judge — and wrote the lead dissent 4 other times — also more than any other judge.

Remarkable.

Outlier-panel correction, revisited

In my big en banc-analysis post in May of 2015, I wrote:

Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

Four en banc cases have been issued since I wrote that, and 3 of the 4 effectively reversed the panel outcome. More interestingly, 2 of them look like what I said is rare, en banc majorities trumping outlier panels:

  • In Lewis, a panel majority of two Republican-nominated judges (Fisher with Chagares) issued a conservative ruling* (holding a criminal-trial error harmless). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and three Republican-nominated judges dissenting.
  • In Dennis, a panel of three Republican-nominated judges (Fisher with Smith and Chagares) issued a conservative ruling (denying capital habeas relief). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and four Republican-nominated judges dissenting.

* I’m using “conservative ruling” in these two bullets as shorthand for “ruling whose outcome conservatives traditionally favor.” Same idea with “liberal.”

What happened in Lewis and Dennis bears watching, but I still doubt it’s the new normal. Consider the other two en banc cases decided in the past year:

  • Langbord split the court’s Democratic-nominated judges, with four of them in the majority and three dissenting.
  • NCAA voting broke down non-ideologically, with liberal and conservative judges all in the majority and only Fuentes and Vanaskie dissenting.

There will never be enough en banc cases to draw robust conclusions from them about the court’s dynamics. The tiny sample size makes it impossible to tell the meaningful trends from the statistical blips.

Still, for appellate nerds, it’s fun to try.

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

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

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

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

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

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

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

 

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

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

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

 

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

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

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

 

US v. Carter — criminal — affirmance — Shwartz

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

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

New opinions — habeas corpus relief and three affirmances

OFI Asset Management v. Cooper Tire — civil — affirmance — Jordan

In a 51-page opinion, the Third Circuit today rejected an appellant’s challenge to the district court’s management of a complex securities-fraud class action. The court criticized the clarity appellant’s underlying complaint, then wryly observed:

Now that OFI [the plaintiff-appellant] has come to us with the same kind of broad averments that drove the District Court to demand specificity, we find ourselves more than sympathetic to that Court’s position.

The court also rejected a long list of intensely factbound substantive arguments.

Joining Jordan were Ambro and Scirica. Arguing counsel were James Harrod of Bernstein Litowitz for the appellants and Geoffrey Ritts of Jones Day for the appellees.

 

Goldman v. Citigroup Global — civil — affirmance — Jordan

The Third Circuit affirmed dismissal of a securities suit for lack of subject-matter jurisdiction, rejecting the plaintiffs’ arguments under Grable & Sons v. Darue Engineering that the court had jurisdiction despite the absence of a federal cause of action. The court refused to be bound by language in a prior precedential opinion such “a summary and unexplained jurisdictional ruling” where jurisdiction was not in dispute has no precedential effect. The court also rejected the appellants’ argument that an arbitration panel’s manifest disregard for the law created a federal-question jurisdictional hook.

Joining Jordan were McKee and Roth. Arguing counsel were Richard Gerace for the appellants and Brian Feeney of Greenberg Traurig for the appellees.

 

Dempsey v. Bucknell University — civil rights — affirmance — Krause

College student Reed Dempsey was arrested after another student accused him of assaulting her. The affidavit of probable cause accompanying the criminal complaint “recklessly omitted” certain facts. After the charges were later dropped, Dempsey brought a civil rights suit alleging that the arrest violated his Fourth Amendment rights.

Today, the Third Circuit affirmed summary judgment against Dempsey because, even considering the omitted facts, a reasonable jury could not find lack of probable cause to arrest. The court rejected Dempsey’s argument that, in analyzing a probable cause issue at summary judgment, a court must ignore unfavorable disputed facts. It held that, “when a court determines that information was asserted or omitted in an affidavit of probable cause with at least reckless disregard for the truth, it must perform a word-by-word reconstruction of the affidavit.” It ruled that information was recklessly omitted, reconstructed the affidavit to include it, and held that the any reasonable juror would find that the reconstructed affidavit established probable cause.

Joining Krause were Vanaskie and Shwartz. Arguing counsel were Dennis Boyle (formerly) of Fox Rothschild for Dempsey and James Keller of Saul Ewing for the defendants.

 

Brown v. Superintendent SCI Greene — habeas corpus — reversal — Ambro

The introduction of today’s opinion granting habeas corpus relief:

This case has a familiar cast of characters: two co-defendants, a confession, and a jury. And, for the most part, it follows a conventional storyline. In the opening chapter, one of the defendants (Miguel Garcia) in a murder case gives a confession to the police that, in addition to being self-incriminating, says that the other defendant (Antonio Lambert1) pulled the trigger. When Lambert and Garcia are jointly tried in Pennsylvania state court, the latter declines to testify, thereby depriving the former of the ability to cross-examine him about the confession. The judge therefore redacts the confession in an effort to comply with Bruton v. United States, 391 U.S. 123 (1968). As a result, when the jury hears Garcia’s confession, Lambert’s name is replaced with terms like “the other guy.” The idea is that the inability to cross-examine Garcia is harmless if the jury has no reason to think that the confession implicates Lambert.

During closing arguments, however, there is a twist when the prosecutor unmasks Lambert and reveals to the jurors that he has been, all along, “the other guy.” Now, instead of a conclusion, we have a sequel. Based on a Sixth Amendment violation caused by the closing arguments, we conclude that Lambert is entitled to relief. We therefore remand so that the District Court can give Pennsylvania (the “Commonwealth”) the option either to retry or release him.

In holding that the Bruton error was not harmless, the court noted that the prosecution’s key witness had flaws and rejected the state’s argument that error was harmless because the jury already knew about these other flaws and believed the witness anyway.

Joining Ambro were Krause and Nygaard. Arguing counsel were Ariana Freeman of the EDPA Federal Community Defender for Brown and Susan Affronti of the Philadelphia DA for the state.

New opinions — a rare plain-error reversal of a criminal sentence, and an expansion of disabilities-suit exhaustion

US v. Dahl — criminal — reversal — Scirica

The Third Circuit today held that it was plain error for the district court to sentence a criminal defendant as a sex-offender recidivist under USSG § 4B1.5. The district court had focused on the actual conduct underlying the defendant’s prior convictions in deciding whether his prior crimes qualified as sex offense convictions, but the Third Circuit held that courts are required instead to apply the categorical approach, focusing on whether the elements of the prior crime necessarily qualify, just as in the armed-career-criminal-enhancement context.

The court disavowed dicta from its 2012 ruling in Pavulak purporting to apply a modified-categorical approach. It reversed under plain error, even though it was undisputed that this defendant’s prior acts would have qualified as sex offenses, stating, “We generally exercise our discretion to recognize a plain error in the misapplication of the Sentencing Guidelines.”

Joining Scirica were Chagares and Krause. Arguing counsel were Brett Sweitzer of the Federal Community Defender in Philadelphia for the defendant and Bernadette McKeon for the government.

 

S.D. v. Haddon Heights Bd. of Educ. — civil / education / disability — affirmance — Greenaway

The Individuals with Disabilities Education Act is one of many constitutional or statutory protections against disability-related discrimination. The IDEA requires plaintiffs to administratively exhaust their claims before they can file suit. In its 2014 ruling in Batchelor, the Third Circuit held that the IDEA exhaustion requirement applies to claims that are raised under other statutes but which arise from rights explicitly protected by the IDEA. Today, the court extended Batchelor “narrow[ly]” to hold that IDEA’s exhaustion requirement also applies to non-IDEA claims that are “educational in nature and implicate services within the purview of the IDEA,” even when they “do not . . . arise from their enforcement of rights explicitly under the IDEA.”

Joining Greenaway were Jordan and Hardiman. Arguing counsel were Sarah Zuba of Reisman Carolla for the appellants and William Donio of Cooper Levenson for the appellee.

Three new opinions — antitrust, criminal sentencing, and prisoner civil rights

It’s mid-August, so clerkships are ending and opinions are issuing thick and fast. Three more today, including a significant prisoner-rights opinion.

Deborah Heart & Lung Ctr. v. Virtua Health — civil / antitrust — affirmance — Roth

A dispute between two health care providers over patient referrals led one of them to bring an antitrust suit against the other. The district court ruled for the defendant, and today the Third Circuit affirmed. The opinion begins, “In antitrust suits, definitions matter,” and the court found that the plaintiff failed to meet its own undisputed definitions of the relevant products and markets. The court stated that it wrote in order to clarify the plaintiff’s burden under Section 1 of the Sherman Act when the plaintiff doesn’t allege that the defendants have market power: such plaintiffs must show anti-competitive effects on the market as a whole.

Joining Roth were Fuentes and Krause. Arguing counsel were Anthony Argiropoulos of Epstein Becker for the appellant and Philip Lebowitz of Duane Morris for the appellees.

US v. Jones — criminal — affirmance — Hardiman

When defendants commit a crime while they are on supervised release, they get a new, revocation sentence, and the length of that sentence depends on the seriousness of the original offense. But what if the seriousness of the offense has changed between the time of the original conviction and the time of the revocation sentencing?

Jermaine Jones was sentenced back in 2000 as an armed career criminal. Since that time, the Supreme Court decided cases that Jones says would make him ineligible to be sentenced as an armed career criminal today. So when Jones violated the terms of his supervised release and faced revocation sentencing, the sentencing court had to decide how to calculate his revocation sentence now–as a career criminal or not? Jones argued that he should be sentenced today based on how his original offense would be classified today; it would be unconstitutional to sentence him as an armed career criminal now, so it would be wrong to classify him now as an armed career criminal when imposing a revocation sentence. The government argued he should be sentenced today based on how his offense was classified at the time.

Today, the Third Circuit agreed with the government and affirmed, holding that it was correct to classify Jones as an armed career criminal for purposes of calculating his revocation sentence.

Hardiman was joined by Smith (Sloviter also had been on the panel before she assumed inactive status). The case was decided without oral argument.

 

Parkell v. Danberg — prisoner civil rights — reversal in part — Chagares

A Delaware inmate fell and seriously injured his elbow. In the suit he eventually filed, he alleged a disturbing year-long ordeal of mistreatment and neglect by prison guards and health-care staff. He also alleged that his Fourth Amendment rights were violated by three-times-daily visual body cavity searches even though he had no contact with anyone. The district court granted summary judgment for the defendants.

Today in a 38-page opinion the Third Circuit reversed summary judgment on the Fourth Amendment cavity-searches claim, holding that the Fourth Amendment gives inmates a “very narrow” right to bodily privacy and that the prisoner here may be able entitled to prospective injunctive relief. The court affirmed summary judgment on his Eighth Amendment conditions-of-confinement and deliberate-indifference claims, as well as his effort to recover money damages on his Fourth Amendment claim, essentially because the pro se inmate had failed to marshal enough proof about who was actually responsible.

Joining Chagares were Fisher and Cowen. Arguing counsel for the inmate were Suzanne Bradley and former Barry clerk Brendan Walsh of Pashman Stein, who the court thanked for the quality of their pro bono representation. Counsel for the defendants were Devera Scott of the Delaware AG’s office and Chad Toms and Daniel Griffith of Whiteford Taylor.

New opinion — Third Circuit affirms denial of class certification in suit alleging that Widener law school advertised misleading graduate-employment stats

Harnish v. Widener Univ. School of Law — civil / class action — affirmance — Chagares

Six recent graduates of Widener University School of Law filed a class action against the law school, alleging:

Between 2005 and 2011, Widener reported that 90-97% of its students were employed after graduation. These numbers were widely and deliberately advertised in print and online publications, along with oral presentations, targeting prospective students. But in reality, only 50-70% of Widener graduates ended up in full-time legal positions, which Widener knew.

They alleged that these misleading employment statistics let Widener charge higher tuition. The district court denied class certification, finding that common questions did not predominate and that the named plaintiffs’ claims were not typical of the proposed class, and the plaintiffs filed for interlocutory review.

Today, the Third Circuit affirmed. The court rejected the plaintiffs’ argument that the district court’s predominance review was too demanding, stating that a court’s pre-certification predominance analysis must be rigorous and must consider the merits to the extent of predicting whether the class-wide evidence on the predominant issues will be sufficient to win. The court ruled that the plaintiffs failed predominance because their damages theory was non-cognizable under applicable state law. Although the court agreed with the plaintiffs that the district court mistakenly focused on the fact that graduates got fulltime legal jobs, it found the error harmless.

Joining Chagares were Krause and Barry. Arguing counsel were David Stone of Stone & Magnanini for the plaintiffs and Thomas Quinn of Wilson Elser for the law school.

 

 

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

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

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

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

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

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

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

 

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

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

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

New CA3blog feature: case tags

Regular readers have probably noticed that the past couple weeks some of my new-opinion posts have been less prompt than usual. I’ve been out of the office on vacation, and while my Third Circuit love continued unabated, there were fewer days where I was staring at the circuit’s opinion page at 12:31 p.m., hitting the refresh button over and over.

Anyway, one good thing to come out of the time away was I had a small idea for how to make the blog better: case tags. Case tags are a way to make it easier for readers (and for me) to find different categories of cases I’ve posted about. There are tags for different substantive-law areas: civil, criminal, agency, bankruptcy, habeas, immigration, prisoner rights, tax. There are tags for different case outcomes: reversals, dissents, concurrences etc. And tags for circuit splits, en bancs, major cases, Supreme Court and cert. Plus, for the heck of it, there are tags to keep track of my research posts and posts that got linked on How Appealing.

These new tags show up at the bottom of posts (but only when viewed on a computer browser, not a smartphone or tablet). To pull up other CA3blog posts with the same tag, just click on the tag itself. All the tags are listed in the bar on the right side of the screen, too, also hyperlinked to any tagged posts.

I went back and added tags for all posts since the start of the year. When I get a chance I’ll tag older posts too, but CA3blog now has over 500 posts so that won’t be a small project.

I always welcome input about the blog, so if you have any requests or ideas for how to make it better just post a comment or email me.

 

New opinion — Third Circuit affirms a white-collar conviction and sentence in Judge Restrepo’s first published opinion

US v. Miller — criminal — affirmance — Restrepo

The Third Circuit on Friday affirmed in a white-collar criminal appeal, holding that the district court correctly applied the ‘investment adviser’ offense-level enhancement to an unregistered investment adviser. The court also found no plain error where the government promised to recommend a lower offense level and then repeatedly requested that level but also stated when pressured by the sentencing judge that a higher level would be reasonable. Finally, the court rejected the defendant’s challenge to the substantive reasonableness of his 120-month sentence. The opinion, Judge Restrepo’s first published opinion as a Third Circuit judge, is a model of directness and clarity.

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

“The Third Circuit’s Supreme Court Scorecard”

Donald Scarinci of Scarinci Hollenback in New Jersey yesterday posted this column, whose title is the title of this post, on PolitickerNJ.com. Scarinci concludes that the Third Circuit’s high-court results this past term were “average” for its own three cases and “weren’t stellar” for other circuit-split cases in which the Third Circuit had taken a side.

New opinion — Third Circuit affirms denial of ineffective-assistance claim where trial counsel raised the issue only in a footnote

Nguyen v. Attorney General — habeas corpus — affirmance — Greenberg

The Third Circuit today affirmed the denial of habeas corpus relief in a case where the prisoner argued his trial counsel was ineffective for raising a speedy-trial issue only in a letter-brief footnote. The court noted its intimate familiarity with the (New Jersey) state court’s procedures and its certainty that those courts would view the footnote as sufficient to preserve the legal issue, and accordingly it held that counsel’s performance was not deficient. The court also rejected the prisoner’s strained argument that the state courts had found as fact that counsel had not raised the speedy-trial issue.

The opinion’s holding and its core reasoning both seem sound, but I wonder about some of the language. The opinion says at pages 3 and 20 that it reviewed the ineffective-assistance claim through a “doubly deferential” lens. In habeas cases, this double deference refers to the interplay of (1) the Strickland ineffective-assistance standard with (2) the 28 USC 2254(d) limitation on relief for claims adjudicated on the merits in state court. But here the state court denied the claim on prejudice grounds only (see op. p. 22, which states “District Court took no position” but presumably means ‘state court took no position,’ compare p.15), while the Third Circuit denied relief on deficient-performance grounds only, so the 2254(d) limitation on relief did not apply. So the “doubly deferential” language seems out of place here and I hope it does not create confusion in future cases.

Joining Greenberg were Ambro and Jordan; Ambro also concurred separately. Arguing counsel were Jonathan Edelstein of Edelstein & Grossman for the prisoner and James McConnell for the state.

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

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

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

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

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

 

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

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

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

 

US v. Stevenson — criminal — affirmance — Hardiman

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

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

New Jersey clobbered in sports-betting en banc

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

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

A couple quick observations.

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

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

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

New opinion — Third Circuit rejects challenge to gas pipeline permits

Delaware Riverkeeper Network v. Secretary — environmental — petition denial — Roth

The Third Circuit today rejected environmentalist petitioners’ challenges to permits for interstate natural gas pipelines in New Jersey and Pennsylvania. The court also rejected various justiciability and sovereign immunity arguments raised by the respondents.

Joining Roth were Greenaway and Scirica. Arguing counsel were Aaron Stemplewicz of the Delaware Riverkeeper Network and Edward Lloyd of Columbia Law School for the environmentalist petitioners, Joseph Cigan III and Lewin Weyl for the state agency respondents, and John Stoviak of Saul Ewing and Christine Roy of Rutter & Roy for the industry respondents.

New opinion — a remarkable career-offender-sentencing opinion

US v. Rengifo — criminal — affirmance — Roth

The Third Circuit on Friday embraced an exceptionally aggressive interpretation of the career-offender sentencing provision, affirming a defendant’s career-offender sentence without oral argument.

Under the US Sentencing Guidelines, a defendant can be sentenced as a career offender only if he has two qualifying prior convictions. One way a conviction can qualify — the way at issue in this case — is if it resulted in a “sentence of imprisonment exceeding one year and one month.”

One of Hector Rengifo’s two prior convictions was possession with intent to distribute marijuana. The sentence he received for this state conviction was “time served to 12 months.” Since 12 months plainly does not exceed one year and one month, the prior conviction doesn’t qualify and Rengifo isn’t a career offender, right? Wrong.

It turns out that Rengifo was released on parole after serving 71 days of the time-served-to-12-months sentence. Then his parole was revoked, he (as the opinion awkwardly puts it) “was sentenced to the remaining 294 days of the original sentence,” and he served another 120 days. He was released on parole again, revoked again, and “sentenced to the remaining 174 days of his sentence.” In the end he served his full original sentence, and nothing more. By “nothing more,” I’m referring to the fact that, in some jurisdictions, defendants who violate parole get additional time tacked onto their sentences for the parole-violating acts — revocation sentences, not just revocations. That’s not what happened here: Rengifo served 365 days. So, still not a sentence “exceeding one year and one month,” right? Wrong.

The government argued that, for career-offender-calculation purposes, Rengifo’s sentence was 365 days (the original max sentence) plus 294 days (the time he served after being released on parole the first time). The court rejected this argument — instead adopting a career-offender-calculation methodology it described as “harsher”:

[T]he correct total of Rengifo’s sentence of imprisonment is 833 days, which consists of the maximum imposed original sentence of 365 days, plus the maximum imposed sentence for the first revocation of 294 days, and plus the maximum imposed sentence for the second revocation of 174 days.

Holy cow!

The court rejected Rengifo’s due-process argument that this triple counting was double counting, and it rejected his rule-of-lenity argument because it found the career-offender guideline and application notes unambiguous. It relied mainly on USSG 4A1.2k n. 11, which says, “[i]f the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned.”  I don’t see how it’s not at least ambiguous whether “sentence imposed upon revocation” means a new sentence added to the underlying sentence for the parole-violating acts.

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

Still more on Javier — rehearing and publication timing

I posted yesterday about Javier v. AG, explaining my view that the opinion hadn’t addressed a key question, and that the answer to that question might cast doubt on the holding. Any time I express doubts about a panel opinion, I’m interested to see how things play out as far as rehearing  — will it be sought, will the rehearing petition raise arguments along similar lines as my post, how will the court rule?

But, in this case, the court already denied rehearing. Recall that Javier originally was issued back in June as non-precedential. Javier filed for panel and en banc rehearing, two days after the government filed to publish the opinion. The court denied panel and en banc rehearing on July 7, almost a month before the panel re-issued the opinion as precedential.

Which raises a question interesting to appellate procedure nerds — did the non-panel judges who voted to deny rehearing en banc know at the time they voted that the opinion would be precedential? Should it matter? Do judges casting en banc votes scrutinize precedential opinions more closely? I think they should, and I bet many do.

Now, I don’t know what internal procedures the Third Circuit follows when petitions for rehearing and motions to publish are both pending, and I’m not suggesting that anyone did anything wrong here.

But in my view the better practice would be for a panel to rule on the motion to publish and issue the precedential panel opinion before the court votes on the en banc rehearing petition. (I recognize this might require some tweaking of IOP 9.5.) En banc rehearing votes should be — and should appear to be — fully informed and free of any potential for manipulation by the panel.

New opinion — can the government deport you for threatening to slap someone? [updated]

Javier v. AG — immigration — deny and dismiss — Greenaway

At the government’s request, the Third Circuit today issued as precedential an opinion it previously had issued as non-precedential,  holding that a conviction under Pennsylvania’s terroristic-threats statute (18 Pa Cons. Stat. 2706(a)(1)) categorically qualifies as a crime involving moral turpitude to support removal. The statute makes it a crime to “communicate[], either directly or indirectly, a threat to: [] commit any crime of violence with intent to terrorize another.” The court rejected the petitioner’s argument that, because “any crime of violence” includes simple assault and because simple assault is not turpitudinous, therefore the statute included non-turpitudinous conduct. The court reasoned that the turpitude derives from the intent to terrorize. The opinion disagreed with a 2010 non-precedential opinion, Larios v. AG, 402 F. App’x 705 (3d Cir. 2010) (Jordan, joined by Fuentes and Aldisert).

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

UPDATE:

The title of my original post about today’s opinion in Javier was, “can the government deport you for threatening to slap someone?”

The court’s answer to that question is that, yes, you can be deported for threatening to slap someone, even though you can’t be deported for actually slapping someone, because an element of a conviction for threats is intent to terrorize.

But the Javier opinion’s reasoning contains a serious gap, in my view: does “intent to terrorize” require anything more, under Pennsylvania law, than ‘intent to make the person think you actually will assault them’? Because, if it doesn’t, then I see no sense in saying assaults aren’t categorically turpitudinous but mere threats to assault are. After all, we’d all agree that hitting someone is worse than making them afraid that you’re going to hit them, no?

I’m not an expert on Pennsylvania criminal law, so I don’t know if “intent to terrorize” requires more than the fear that would result from any believed threat of assault, but the opinion’s failure to discuss the point is concerning.

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

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

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

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

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

An interesting and odd case.

 

Sunday v. AG — immigration — petition denied — Chagares

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

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

New opinion — Senator Menendez’s alleged actions not protected from prosecution

US v. Menendez — criminal — affirmance — Ambro

The Third Circuit rejected U.S. Senator Robert Menendez’s appeal from the denial of his motion to dismiss the indictment against him. Menendez (D-NJ) is charged with accepting gifts from a Florida doctor whom his office assisted in various ways. Because the charged acts were “essentially lobbying on behalf of a particular party,” the court rejected his argument that his actions are protected from prosecution by the Speech or Debate Clause, but the court also rejected the government’s position that the clause does not extend to legislative attempts to influence executive actions.

Joining Ambro were Jordan and Scirica. Arguing counsel were Abbe Lowell of Chadbourne & Parke for the Senator and Peter Koski for the government.

UPDATE: AP reports on 9/13 that the Court denied en banc rehearing.

New opinion — prison’s failure to timely respond to an inmate’s grievance opens door to the inmate’s federal suit

Robinson v. Superintendent — prisoner civil rights — reversal — Hardiman

A unanimous Third Circuit panel today held that a  Pennsylvania prison’s repeated failure to respond to an inmate’s grievance rendered its administrative remedies “unavailable” under the Prison Litigation Reform Act, reversing the district court and allowing the inmate’s civil-rights suit to proceed. The court explained:

The District Court concluded that SCI Rockview’s * * * response to Robinson—which was provided more than four months late and six weeks after Robinson filed suit, and did not even address the correct incident— rendered the prison’s administrative remedies “available” to him under the PLRA. We disagree.

The opinion had some pointed words for the prison:

If prisons ignore grievances or fail to fully investigate allegations of abuse, prisoners will feel disrespected and come to believe that internal grievance procedures are ineffective. If prisoners do not believe they will get a response from prison administration, they will be more likely either to bypass internal procedures entirely and file a complaint in federal court or use a federal lawsuit to prod prison officials into a response, thus taxing the judicial resources that Congress meant to conserve by passing the PLRA. Accordingly, we hope that the events that transpired in this case are not reflective of the way in which SCI Rockview responds to inmate grievances generally.

Joining Hardiman were Jordan and Greenaway. Arguing counsel for the prisoner was John Jacobus of Steptoe & Johnson (a Barry district court clerk) and Howard Hopkirk of the state AG’s office for the prison. The opinion thanked the Steptoe lawyers for handling the appeal pro bono.

New opinion — divided Third Circuit panel vacates career-offender criminal sentence under plain-error review

US v. Calabretta — criminal — reversal — Chagares

The Third Circuit reversed a criminal sentence under plain error review yesterday, holding that Johnson v. United States invalidates the residual clause of USSG 4B1.2 and that sentencing the defendant as a career offender was plain error.

Joining Chagares was Jordan. Fisher dissented, “specifically to address the erosion of the doctrine of plain error review in our Circuit.” Arguing counsel were John Meringolo of New York for the defendant and Steven Sanders for the government.

After panel rehearing, Third Circuit reverses course in non-precedential media case

Earlier this week the Third Circuit issued a non-precedential opinion in Cheney v. Daily News, reviving a firefighter’s defamation and invasion-of-privacy claims against a newspaper that used his photo, naming him in the caption, to accompany a news story about a fire department sex scandal he had nothing to do with. The same panel had issued an opinion coming out the other way back in February, then granted panel rehearing and heard oral argument.

I don’t have an intelligent view about the merits here, but I do applaud the panel’s willingness to reverse course. I’m a firm believer in panel rehearing. Modern appellate judges simply don’t have the luxury of agonizing forever over each case. Panel rehearing plays a valuable role in helping courts decide cases efficiently and accurately, but fulfilling that role requires judges confident enough to admit their rare mistakes.

As Justice Felix Frankfurter wrote, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

New opinions — it isn’t unreasonable for judges to run new federal sentences consecutive to existing unconstitutional state sentences

US v. Napolitan — criminal — affirmance — Krause

Sometimes a judge imposes a criminal sentence on a defendants who is already serving another criminal sentence. When that happens, the judge has to decide whether the new sentence starts running now (“concurrent”), or whether instead the new sentence doesn’t start running until the defendant’s current sentence is over (“consecutive”).

The difference between concurrent and consecutive may sound like small potatoes, and some judges may treat it that way, but in practice the choice can have a huge impact on how long a defendant has to serve.

Imagine a defendant whose first sentence is 10 years in state prison. After she has served half that sentence, she gets a federal conviction and a new 5-year sentence. If the new sentence is consecutive, her total time in prison is 15 years; if concurrent, she serves 10 years. If that’s you or your parent or your child, that’s a huge sentencing difference.

Now, let’s change the above hypothetical. Suppose that, at the time of the new sentencing, everyone in the courtroom agrees that the first sentence was illegal. Instead of the 10 years she got, the sentence should have been only 5 years. But it’s too late now for her to challenge the unconstitutional first sentence.

In a case like the second hypothetical, is it unreasonable for a judge to make the second sentence consecutive? Today, the Third Circuit held that it is not, affirming a defendant’s consecutive sentence. The court found the outcome largely dictated by the 1994 Supreme Court ruling in Custis v. United States, which held that federal defendants generally cannot collaterally attack prior state sentences used to enhance their later federal sentences.

The opinion’s legal reasoning looks perfectly sound to me. But I wish the court had included some language reminding district courts that, while they’re more or less free to run new sentences consecutive to unconstitutional existing sentences, that doesn’t make it a fantastic idea.

Joining Krause were Fuentes (the court’s newest senior judge!) and Roth. The caption does not indicate whether there was oral argument; the defendant was represented by AFDs Akin Adepoju and Renee Pietropaulo of the WDPA defenders, the goverment by Donovan Cocas and Rebecca Haywood.

New opinion — Third Circuit reaffirms the “picking off” exception to mootness

Richardson v. Director Federal BOP — inmate civil rights / class action — reversal — Smith

Class-action plaintiffs won a major victory in the Third Circuit today, as the court reaffirmed a rule that makes it harder for defendants to moot impending class-action suits by picking off the plaintiffs before they can seek class certification.

First, the facts. An inmate at USP Lewisburg housed in that prison’s “Special Management Unit” alleged that the prison had an unwritten policy of increasing inmate-on-inmate violence by housing hostile SMU inmates together and painfully restraining inmates who refused a hostile cellmate. Specifically (record cites omitted):

In support of this claim, Richardson [the inmate plaintiff] explains how—after seven months of living with a compatible cellmate—corrections staff asked him to “cuff up” on the cell door so that a new inmate could be transferred into his cell. Richardson alleges that this inmate, known among the prison population as “the Prophet,” had attacked over twenty former cellmates.  Richardson refused to “cuff up” because he did not want to be placed with “the Prophet.” Corrections staff then asked if Richardson was refusing his new cellmate, and he replied that he was. After taking “the Prophet” away, corrections staff returned thirty minutes later with a Use of Force team and asked Richardson if he would submit to the use of restraints. Richardson complied.

Richardson was then taken down to a laundry room where he was stripped, dressed in paper clothes, and put in “hard” restraints. Next, he was locked in a cell with another prisoner (who was also in hard restraints) and left there for three days before being transferred yet again. All told, Richardson alleges that he was held in hard restraints for nearly a month, was forced to sleep on the floor for much of that time, and frequently was refused both showers and bathroom breaks. Richardson also claims that there have been at least 272 reports of inmate-on-inmate violence at USP Lewisburg between January 2008 and July 2011 and that dozens of other inmates have suffered treatment similar to his as a result of this unwritten practice or policy.

The inmate sued for damages and injunctive relief and sought class certification. The district court denied certification on ascertainability grounds, and the inmate appealed. The prison argued that the claims for injunctive relief were moot because they moved the inmate out of the SMU after he sued and before he sought class certification. The prison also argued that all the named defendants had retired or changed jobs and that this too mooted any claim for injunctive relief.

Today, the Third Circuit reversed, rejecting both of the prison’s mootness arguments in a thorough, 44-page opinion. In the opinion’s most important holding, the court reaffirmed the “picking off” exception to mootness, which bars defendants from dodging class suits by mooting named plaintiffs before they have a fair opportunity to seek class certification and reduces premature certification motions.

Joining Smith were Hardiman and Nygaard. Arguing counsel were Alexandra Morgan-Kurtz of the Pennsylvania Institutional Law Project for the inmate and Michael Butler for the prison.

Senator Toomey is Blocking a Well-Qualified Judicial Nominee and Adding to the Lack of Gender Diversity in Our Judiciary

Note: I had the pleasure of co-authoring this post with Ellen C. Brotman, Chair of the White Collar and Government Investigations Practice at Griesing Law, LLC, a Philadelphia-based, woman-owned law firm. You can follow Ellen on Twitter @EllenBrotman.

 

Women judges graph

Last month, the United States Court of Appeals for the Third Circuit held the swearing in of its latest judge, the Honorable L. Felipe Restrepo, a naturalized American citizen, born in Colombia, a graduate of the University of Pennsylvania and Tulane Law School.  Judge Restrepo is a universally respected jurist and legal scholar who brings a diversity of background and training to the Court.

But despite this positive development, the Third Circuit still has a diversity problem: the Court has 13 active judges, and only two of them are women. That’s the lowest proportion of women of any federal appeals court in the country.

The Third Circuit’s shortage of women judges undermines both the public’s confidence in our justice system and the Court’s ability to tap into diverse perspectives in its deliberations.  Yet, as part of a Republican effort to thwart President Obama’s judicial nominations, Pennsylvania’s Republican United States Senator Pat Toomey is currently blocking the nomination of a well-qualified woman, Rebecca Ross Haywood, to the Court.  This partisan obstructionism has to stop.

The Third Circuit sits in Philadelphia and hears appeals from federal courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands. It is one of 12 regional federal circuit courts. Federal judges are nominated by the President, confirmed by the Senate, and serve for life. Once judges reach a certain age and number of years of service, they have the option of entering a sort of semi-retirement known as senior status. When a judge takes senior status, it creates an open seat on the court for a new active judge.

Nationwide, about a third of federal appellate judges are women. All but two other circuits have a proportion of women judges that’s twice as high as the Third Circuit’s; in three circuits, the proportion of women is three times greater. For example, the Eleventh Circuit — considered by many the most conservative circuit court in the country — has five women among its 11 active judges, or 45 percent.

Of course, it is encouraging that the Third Circuit is doing better when it comes to racial and ethnic diversity. The Court’s proportion of African American and Hispanic judges is above the national circuit-court average.

But those responsible for selecting judges should be doing everything they can to correct the Third Circuit’s shortage of women. After Judge Rendell took senior status a year ago, President Barack Obama nominated Rebecca Ross Haywood, the Chief of the Appellate Division in the United States Attorney’s Office in Pittsburgh, to fill Judge Rendell’s seat.  AUSA Haywood has more experience as a federal prosecutor and appellate advocate than any recent Third Circuit appointee. And Haywood’s nomination is historic — she would be the Court’s first-ever African-American woman. The American Bar Association gave Haywood its highest rating, Unanimously Well Qualified. Yet Senator Toomey questions Haywood’s abilities and is using Senate procedural rules to block her nomination.

Why is gender diversity important? Aside from the importance of equally recognizing accomplishments and providing role models and exemplars, diverse perspectives lead to better decision making.  One study found that women federal appellate judges are significantly more likely than men to rule in favor a party alleging discrimination. Just having women judges on the panel deciding a case has a significant impact on how the men judges on the panel rule, too: with a woman on the panel, the study found, men are significantly more likely to rule in in favor of a civil rights litigant. The recent scandal over misogynist and racist emails exchanged between Pennsylvania Supreme Court justices and attorneys here in Pennsylvania demonstrates how important a diverse bench is to the public’s ability to have confidence in justice system.

Just a decade ago, the Third Circuit had a solid contingent of women judges: Judge Delores Sloviter, Judge Jane Roth, Judge Marjorie Rendell, and Judge Maryanne Trump Barry. But, since 2006, all four women have taken senior status, and Judge Sloviter recently stopped hearing cases altogether. In that time, only two male Third Circuit judges went senior, and only two of the judges added since 2006 — Judge Patty Shwartz and Judge Cheryl Krause — are women.  From 2000 and 2012, 10 new judges joined the Court: all 10 were men.

AUSA Haywood deserves the nomination because she has the acumen, the training, and the character. The Third Circuit deserves a judge with AUSA Haywood’s skills, wisdom and distinct perspective. Senator Toomey’s constituents deserve a representative who will stop playing politics with our justice system. It’s time to move AUSA Haywood’s nomination forward.

New opinions — government can deny citizenship for false statements on old immigration applications

The Third Circuit has had a flurry of published immigration opinions in recent weeks, and today brings two more, both government wins.

Saliba v. AG — immigration — affirmance — Greenberg

A citizen of Syria falsely claimed to be a citizen of Lebanon when applying for temporary US residency. The deception got him temporary status and later legal permanent residence, but it was caught when he applied for citizenship. The district court denied his petition challenging citizenship denial, and today the Third Circuit affirmed in a lucid and well-reasoned opinion that is two-spaces-after-the-period away from violating every rule of good typography.

Joining Greenberg were Ambro and Jordan. The case was decided without oral argument, which seems like a missed opportunity because losing counsel speaks six languages.

 

Koszelnik v. Secretary of Dep’t of Homeland Security — immigration — affirmance — Roth

Stop me if this sounds familiar: a citizen of Poland falsely answered a question on a visa application and as a result gained permanent residency, but the falsehood was later caught when he applied for U.S. citizenship. The district court ruled against him, and the Third Circuit today affirmed, noting in a footnote:

Two panels of this Court are filing opinion in Koszelnik v. Secretary, No. 14-4816, and Saliba v. Attorney General, No. 15-3769, on this day dealing with similar issues. Each opinion is a further precedent supporting the other opinion.

(Saliba had a subtantially identical footnote.)

Joining Roth were Fuentes and Krause. Arguing counsel were John Bleimaier of Princeton for the appellant and Neelam Ihsanullah (who I suspect is no longer a member of the National Immigration Project of the National Lawyers Guild) for the government.

 

If someone approaches you today with this offer — “I will give you $10 if you successfully predict one published opinion for which the Third Circuit will not grant rehearing en banc, but if you lose you have to pay $1,000″ — consider taking a flier on today’s opinions.

Nominations are open for the ABA’s annual list of the top 100 (?) legal blogs

I just got an email from the ABA about nominating legal blogs for their Blawg 100 list. Here’s how my thought process went:

  1. Gee, I hope my blog makes the list this year.
  2. Should I ask my readers to vote for my blog? That seems like more self-promotion than I’m comfortable with. (Blech. Ick — “Pubished,” eh?)
  3. Hey, wait, maybe if I mention the awards, but pretend that I’m doing so only to discuss other blogs, I’ll get nominations without looking like a huckster.

Clever, no? (And when my obscure and ranting blog is not chosen, I plan to react quite graciously, like this.)

The ABA publishes an annual list, the Blawg 100, that purports to identify the best* legal blogs.** Except a lot*** of the obvious choices (Scotusblog, How Appealing, etc.) are already on their Blawg 100 Hall of Fame. The ABA deems the Hall its highest blog honor, so the 40 Hall of Famers aren’t eligible for the annual 100 list.****

* A list of the worst would be more fun.

** I hate the cutesy word “blawg.” I’d sooner refer to myself as a nose-picker than as a blawger.

*** Why is Douglas Berman’s Sentencing Law & Policy blog not in the Hall of Fame, or even on the most recent 100 list? Because it doesn’t measure up to Golf Dispute Resolution?

**** This is just as well, since it saves me ranting on about the misogyny of HOFer Simple Justice.

Am I the only one who questions whether there are 140 award-worthy legal blogs? I bet not. (But the time I spend writing my blog cuts into the time I have to read others, so what do I know?) I’ve often mentioned several of my favorites here, especially How Appealing and New Jersey Appellate Law, and I enjoy Noah Feldman‘s column on Bloomberg.

Anyway, this year I’m nominating De Novo: A Virginia Appellate Law Blog. De Novo is authored by Jay O’Keeffe, an appellate and business lawyer in Roanoke. De Novo consistently pulls off a balance I’ve aspired to: it’s filled with useful information and interesting ideas, yet it’s relentlessly readable.

Most of my favorite De Novo posts cover appellate advocacy, like this one entitled Legal Writing Tip: Focus Before Detail, this detailed one on a disastrous Ninth Circuit oral argument, and this one on how to handle the Fourth Circuit’s sinister rule that counsel don’t find out who’s on their panel until the morning of oral argument. (Plus he’s a fellow Butterick fanboy!) The content is terrific, and it’s always presented with clarity, humility, and humor.

Well, I hope you’ve enjoyed this post, which is not at all about nominating my blog for the Blawg 100.

New opinion — restitution award against child-porn producer does not bar later civil suit

Doe v. Hesketh — civil — reversal — Greenaway

Matthew Mancuso adopted a five-year-old girl, sexually abused her, took photos and videos of the abuse, and traded this child pornography online. He was convicted of sexual exploitation of a minor and received a sentence that included $200,000 in restitution to the victim. The victim later sued Mancuso under 18 USC 2255, but the district court held that the civil suit was barred by the prior restitution award. Today, the Third Circuit reversed, holding that section 2255 allows victims to sue for damages even if they already have received restitution for the same conduct.

Joining Greenaway were Scirica and Roth. Arguing counsel were Sidney Moore of Georgia for the appellant and Stanley Greenfield of Greenfield & Kraut for the appellee.

More on why I don’t think refusing to confess again in court means that the earlier confession was unreliable

I posted earlier today about the Third Circuit’s habeas corpus affirmance in Staruh v. Superintendent. (And the losing attorney just posted a comment.) I can’t help posting some further thoughts, which assume familiarity with my prior post.

The opinion says that the declarant-against-penal-interest’s “failure to testify is extremely probative of the truthfulness of her statements.” In other words, the fact that she wasn’t willing to repeat her confessions under oath is an extremely strong reason to think the confessions were false: she wouldn’t put her money where her mouth was.

That sounds reasonable enough at first blush, but I think it doesn’t survive scrutiny.

Consider. The defendant had asserted that the grandmom confessed her own guilt, and the defendant wanted the grandmom to repeat that confession in court. Assuming grandmom wasn’t eager to face a first-degree murder trial herself, she had 3 options:

  1. testify that the investigator was lying, she had never confessed, and she was innocent;
  2. testify that investigator was telling the truth but the confession had been a lie and she was innocent; or
  3. refuse to testify.

She chose #3. Outside the jury’s presence, she invoked the 5th Amendment right of self-incrimination. That 5th Amendment invocation is what the opinion referred to as her “failure to testify.”

Now, I’m no great 5th Amendment scholar, but if the grandmother believed her confession either (1) never happened, or (2) was false, why on earth would she invoke her right against self-incrimination? (Her out-of-court confessions weren’t under oath, so this even isn’t a situation where she incriminated herself either way, murder or perjury.)

The panel treated her unwillingness to testify as a tacit admission that her confessions were false, but in reality she was perfectly free to disavow the confessions, expressly, just by testifying. The fact that she refused to testify — that, instead, she pled the 5th — is not an extremely strong reason to think the confessions were false. If anything, it’s a pretty good reason to think they were true.

(And all that’s not just a fluky fact of this particular case, but it often will be true in statement-against-penal-interest / right-to-present-a-defense cases — the cases where the court’s “extremely probative” language will forever after be invoked.)

Now, I admit that it’s possible that grandmom was trying to be extremely clever. Maybe she thought she could make a false confession out of court, count on that confession being admitted at mom’s trial and resulting in mom being found not guilty and not resulting in grandmom being tried for murder herself. That’s not impossible, but I think it’s ludicrously unlikely. This isn’t Hollywood, this is grandmom living in a house with “diapers on the floor, kitchen faucets that did not work, a sink overflowing with dirty dishes, and toilets that were used without water.” Far-fetched what-ifs like that are no reason to set up a general presumption like the court (arguably) did here.

And the language in today’s opinion risks creating a powerful new reward for prosecutors who succeed in forcing recanting witnesses or confessing alternate perps to invoke the 5th Amendment. Now they don’t just keep those witnesses from taking the stand and looking the factfinder in the eye — they also get to make the witnesses’ out-of-court recantations and confessions disappear in a poof of smoke, too.

Do we really need to create another hurdle for defendants fighting to prove their innocence?

 

 

 

New opinion — preventing jurors from hearing the alternate perpetrator’s hearsay confessions does not warrant habeas relief

Staruh v. Superintendent — habeas corpus — affirmance — Smith

Two adults lived in the house where a three year-old died from blunt-force trauma: the victim’s mother and grandmother. The mother was the one charged with murder. On the eve of trial, after repeatedly claiming for over two years she had nothing to do with the injuries, the grandmother reportedly confessed in interviews with a defense investigator.

When the grandmother refused to repeat the confessions in court, the defense sought to tell the jury what the grandmother had said, offering it as a statement against penal interest. The court refused the request on hearsay grounds, and, knowing nothing about the grandmother’s confessions, the jury convicted the mother of murder.

In the habeas corpus appeal now before the Third Circuit, the mother argued that the court’s refusal to admit the grandmother’s confessions violated the mother’s due process right to present her defense. Today, without oral argument, the Third Circuit rejected the claim, affirming the district court’s ruling and denying habeas relief.

The court did not appear to dispute the mother’s contention that the confessions “were made before and during trial; were made on more than one occasion to a court-appointed investigator; were never repudiated; were very detailed; and were not the result of threats or inducements.” Yet it found that the confessions had “no indicia of credibility.” It explained:

Lois [the grandmother], in making the statements, was attempting to have her cake and eat it too.11 She was hoping to prevent her daughter from being convicted of murder by confessing to the crime, while at the same time avoiding criminal liability herself. Her last-minute change of heart, after she had both pleaded guilty to the lesser offense of endangering a child and disavowed any responsibility for Jordan’s death for two and a half years, further supports this view. This appears to be a “justice-subverting ploy” that provides the justification for requiring indicia of truthfulness.

In the footnote, the court noted that the defendant “appears to have been unable to obtain an affidavit from Lois reaffirming her confession . . . casting further doubt on its truthfulness.”

I question the court’s reasoning. Maybe the grandmom was lying to protect the mom. It’s possible. But it’s also possible that grandmom was the real murderer, her repeated and detailed and never-repudiated confession was the truth, and her refusal to affirm it was choosing her own freedom over the mom’s. The court’s certainty about which possibility is the truth, seemingly arrived at with no subsequent evidence or fact-finding about grandmom’s actual motivations, seems unwarranted. That seems like a choice for juries allowed to hear all the facts, not appellate courts.

Perhaps the panel meant only to say that relief was foreclosed by 2254(d)(1)’s limitation on relief, not that the claim failed as a de novo matter, but that’s not how I read the opinion.

In the opinion’s most dangerous passage, the court stated in a footnote that the grandmother’s unwillingness to testify “is extremely probative of the truth of her statements.” Read broadly, this language is nothing less than a repudiation of the penal-interest hearsay exception. The whole reason defendants like the mother seek to get in hearsay statements against penal interest is that the alternate perpetrator isn’t willing to repeat the confession in court. If the hearsay is never reliable enough when the declarant won’t testify at trial, then the penal-interest rule is an umbrella you can use only when it’s not raining. I hope that the court clarifies this critical point on rehearing or in a future case.

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

UPDATES: I posted some further thoughts on this case here.

New opinion — the circuit’s next big internet-privacy opinin

In re: Nickelodeon Consumer Privacy Litig. — civil — partial affirmance — Fuentes

The opinion’s cogent introduction:

Most of us understand that what we do on the Internet is not completely private. How could it be? We ask large companies to manage our email, we download directions from smartphones that can pinpoint our GPS coordinates, and we look for information online by typing our queries into search engines. We recognize, even if only intuitively, that our data has to be going somewhere. And indeed it does, feeding an entire system of trackers, cookies, and algorithms designed to capture and monetize the information we generate. Most of the time, we never think about this. We browse the Internet, and the data-collecting infrastructure of the digital world hums along quietly in the background.

Even so, not everything about our online behavior is necessarily public. Numerous federal and state laws prohibit certain kinds of disclosures, and private companies often promise to protect their customers’ privacy in ways that may be enforceable in court. One of our decisions last year, In re Google Inc. Cookie Placement Consumer Privacy Litigation, addressed many of these issues. This case addresses still more.

This is a multidistrict consolidated class action. The plaintiffs are children younger than 13 who allege that the defendants, Viacom and Google, unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites. Many of the plaintiffs’ claims overlap substantially with those we addressed in Google, and indeed fail for similar reasons. Even so, two of the plaintiffs’ claims—one for violation of the federal Video Privacy Protection Act, and one for invasion of privacy under New Jersey law—raise questions of first impression in our Circuit.

The Video Privacy Protection Act, passed by Congress in 1988, prohibits the disclosure of personally identifying information relating to viewers’ consumption of video-related services. Interpreting the Act for the first time, we hold that the law permits plaintiffs to sue only a person who discloses such information, not a person who receives such information. We also hold that the Act’s prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior. In our view, the kinds of disclosures at issue here, involving digital identifiers like IP addresses, fall outside the Act’s protections.

The plaintiffs also claim that Viacom and Google invaded their privacy by committing the tort of intrusion upon seclusion. That claim arises from allegations that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then, despite its assurances, did exactly that. We faced a similar allegation of deceitful conduct in Google, where we vacated the dismissal of state-law claims for invasion of privacy and remanded them for further proceedings. We reach a similar result here, concluding that, at least as to Viacom, the plaintiffs have adequately alleged a claim for intrusion upon seclusion. In so doing, we hold that the 1998 Children’s Online Privacy Protection Act, a federal statute that empowers the Federal Trade Commission to regulate websites that target children, does not preempt the plaintiffs’ state-law privacy claim.

Accordingly, we will affirm the District Court’s dismissal of most of the plaintiffs’ claims, vacate its dismissal of the claim for intrusion upon seclusion against Viacom, and remand the case for further proceedings.

Joining Fuentes were Shwartz and Van Antwerpen. Arguing counsel were Jason Barnes for the appellants, David O’Neil of Debevoise & Plimpton and Michael Rubin of Wilson Sonsini for appellees, and Alan Butler of the Electronic Privacy Information Center and Jeffrey Wall of Sullivan & Cromwell for amici.

New opinion — divided panel reverses conviction based on failure to give entrapment defense [updated]

US v. Dennis — criminal — reversal in part — Nygaard

In a criminal appeal arising out of a stash house reverse sting, a divided panel reversed a defendant’s convictions for robbery and gun possession, holding that the district court erred in failing to instruct the jurors on entrapment, and specifically in weighing competing evidence in the government’s favor to deny the instruction. The majority also rejected the government’s harmless-error argument. It rejected the defendant’s argument that he was the victim of an outrageous prosecution violating due process.

Joining Nygaard was Hardiman; interestingly, Ambro dissented from the instruction reversal, and also expressed measured concerns about stash house reverse stings. Arguing counsel were Benjamin Yaster of Gibbons for the defendant and Mark Coyne for the government.

I expect a government petition for rehearing en banc and I’m certainly curious to see what happens.

[I updated my original post with more details.]

Three new immigration opinions

Three published opinions today — all three were immigration appeals, all three involved Hispanic petitioners, all three were decided without oral argument, and all three were government wins.

Bedolla Avila v. AG — immigration — denial — Smith

The Third Circuit issued an opinion applying the convoluted analysis to decide whether a crime counts as an aggravated felony for purposes of removal. First, the court attempts to apply the formal categorical approach to the statute of conviction. But sometimes the statute of conviction is divisible, and in which case the court departs from formal categorical approach and instead uses a modified categorical approach. (If those terms are Greek, they’re explained in the opinion.) Here, the court held that the petitioner was convicted under a divisible statute and used modified categorical analysis to identify the crime of conviction. Having identified the crime he was convicted of, the court then had to decide if it was an aggravated felony, as follows:

there are two independent but valid routes by which an offense may be found to qualify as an aggravated felony. The first, the illicit trafficking route, provides that a crime is an aggravated felony if it is a felony under state law and contains a trafficking element. Id. The second, the hypothetical federal felony route, provides that a crime is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id.

Applying the hypothetical federal felony route, the court held that the petitioner’s crime was analogous to possession with intent to distribute cocaine and thus qualified as an aggravated felony.

The court also rejected the petitioner’s argument that simultaneous removal proceedings against a person in front of an immigration judge and the Dept of Homeland Security are prohibited.

Joining Smith was McKee and Hardiman. The case was decided without argument; Sandra Greene of Greene Fitzgerald represented the petitioner.

 

Frias-Camilo v. AG — immigration — denial — Jordan

A native of the Dominican Republic was a lawful permanent resident for 7 years before pleading guilty to conspiracy to possess cocaine, but he “received no jail sentence, no term of probation, no community service, and owed no fines or fees.” The government in all its wisdom decided to deport him anyway. He argued he was not subject to removal because his guilty plea did not result in any punishment. The Third Circuit disagreed and denied his petition.

Joining Jordan were Ambro and Greenberg. The case was decided without oral argument; counsel for the petitioner was Raymond Lahoud of Barkout & Barkout.

 

Ordonez-Tevalan v. AG — immigration — denial — Greenberg

A Guatamalen woman twice entered the U.S. illegally and was caught both times. She tried to prevent removal the second time by explaining that she came to the U.S. in order to escape an ex-boyfriend who had raped her and threatened to kill her. The Third Circuit rejected her appeal on 3 independent grounds — the immigration judge’s credibility findings against her, her failure to prove that the abuse she feared was the result of her membership in a protected class, and her failure to prove that her abuse was caused or allowed by an official.

The court did rule against the government on a jurisdictional issue. While the Third Circuit petition was pending, the parties jointly moved to reopen proceedings in the Board of Immigration Appeals (apparently to correct an error in the record), and the BIA issued new orders denying relief on the same grounds as before. The petitioners did not file a new petition challenging the new orders, and the government argued that the Third Circuit lacked jurisdiction to review her challenge to the old orders. The court rejected this argument on the ground that the new orders did not alter the prior decisions.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument; counsel for the petitioners was Carol Donohoe of Reading, Pa.

 

 

 

“It would be surprising and distressing were the Third Circuit to allow the district court decision to stand.”

The quote forming the title of this post is from this story by Carrie Salls today on PennRecord. The district court decision in question is a ruling denying the Federal Trade Commission’s request of an injunction blocking a merger of two Harrisburg-area hospitals. The story reports that the district court’s ruling marked the first defeat on an attempted federal court hospital merger challenge in more than 10 years for the FTC.”

The quote is by former FTC general counsel Stephen Calkins, who predicts the circuit will rule on the antitrust appeal by the end of the summer (the district court ruling reportedly was in May, but the FTC already filed its reply brief earlier this week, opening brief here). Calkins also is quoted saying “it is especially important for the FTC to win the Third Circuit appeal,” and describing the district court ruling as “appallingly bad.”

 

Third Circuit revisits Lehman Brothers in another must-read sanctions opinion

Roberts v. Ferman — civil — affirmance — Smith

Fellow Third Circuit enthusiasts will recall the court’s ruling last year in Lehman Brothers, where the court held that a litigant’s failure to include a transcript in the appellate record resulted in forfeiture of the litigant’s claim. The ruling sparked much discussion, some of it critical of the opinion, some of it on this blog (see for example my post and this Third Circuit Bar Association newsletter article by Howard Bashman and me).

Today, the Third Circuit revisited Lehman Brothers, vigorously reaffirming the ruling but also emphasizing its narrowness. The court tartly noted, “we did not cavalierly hold that any failure to comply with [FRAP] Rule 10(b) would result in forfeiture.” It explained:

The takeaway, then, from Lehman Brothers should be clear: Gateway made an affirmative and serious misstatement in its brief before this Court when it stated that no record of the telephonic oral argument existed. This, we concluded, evinced either an intent to deceive the Court or a “remarkable lack of diligence.” Id. at 101. Even so, that alone was insufficient to warrant forfeiture, because we went on to consider Gateway’s post hoc explanation for its failure. Only upon finding Gateway’s explanation lacking did we conclude that forfeiture was an appropriate sanction.

The court held that Lehman Brothers‘ forfeiture sanction was not warranted in this case, even though this appellant also failed to include in the record some available and relevant transcripts, because “[t]here is no allegation that Roberts [the appellant] misrepresented the existence or non-existence of the trial transcript or that the explanation for his omission was a disingenuous post hoc rationalization.”

If today’s opinion’s ended there it would still be CA3-nerd can’t-miss reading, but there’s much more.

Gaps in the transcript were discovered while the case was still in district court, and the court directed the appellant to follow the FRAP 10(c) procedure for recreating the missing record. When the appellant failed to do so, the district court dismissed for failure to prosecute the appellant’s post-trial motion. With some withering language — for example, “Roberts’ counsel should take the time to read Rule 10(c)” — the Third Circuit held that this ruling was no abuse of discretion, and, alternatively, that the appellant’s actions would also foreclose review of the merits of his appeal. The opinion gives this useful practice guidance:

[O]ur holding in this case leaves open avenues for appellants to seek appropriate relief if they can show that they were prejudiced by the loss of part or all of the record below. Such an appellant must comply with the dictates of Rule 10(c) and then present specific reasons why his or her attempt to recreate the record was insufficient. This would allow us on appeal (or the district court when considering a posttrial motion) to properly assess whether we could in fact grant meaningful review of the appellant’s claims without the actual trial transcript available to us.

Finally, the court held that the district judge did not err in reconsidering sua sponte an earlier denial of summary judgment.

Joining Smith were Ambro and Krause. The case was decided without oral argument. Counsel for the appellant was Brian Puricelli, who in 2004 was the subject of a New York Times story (!) describing one of his briefs as “infested with typographical errors,” and reporting that a federal judge wrote, “Mr. Puricelli’s complete lack of care in his written product shows disrespect for the court.” Counsel for the appellee was Carol VanderWoude of Marshall Dennehy.

 

 

“As Trump has advanced this rhetoric, he has practically begged the question: What would his sister think?”

Rachel Berg has this fascinating article today on Realclearpolitics, venturing some answers to the query that forms the title of this post. The headline is, “Trump and His Jurist Sister: A Study in Contrasts.” Appellate star David Fine of K&L Gates is quoted:

Barry “is a very active judge at oral argument, which is usually a sign a judge has already read the briefs and is very actively thinking about the case,” said David Fine, an appellate lawyer based in Harrisburg, Pa. “She is very polite in questioning and at the same time also direct.”

I’m quoted too.

The article features an interesting discussion of Barry’s record in immigration appeals, focusing on an opinion I haven’t seen mentioned in any prior Barry/Trump coverage:

[M]any of her immigration-related decisions are notable for their clear breaks with Trump: in calling for limits on the executive’s authority, and in their explicit compassion for individuals.

* * *

[O]n the Third Circuit bench, Barry considered whether the government should be permitted to deport Malachy McAllister, who had fled persecution and political turmoil in Northern Ireland in the 1980s and ultimately sought asylum in the U.S. Beginning in 1999, however, immigration authorities sought to deport him.

The panel, including Barry, found that there were no legal avenues for McAllister and his family to remain in the country. But her opinion sought to highlight the humanity of the case and suggested that the law had fallen short.

“I refuse to believe that ‘Give me your tired, your poor, your huddled masses yearning to breathe free…’ is now an empty entreaty,” Barry wrote. “But if it is, shame on us.”

“I cannot find a way to keep the McAllisters in this country, and I have surely tried,” Barry added. “But the laws Congress has enacted, particularly those enacted in the wake of the September 11th horror, are bullet-proof, designed, as they should be, to combat terrorism. The problem here, though, is that Congress’s definition of ‘terrorist activity’ sweeps in not only the big guy, but also the little guy who poses no risk to anyone. It sweeps in Malachy McAllister.”

Check out the whole story, it’s worth it.

 

 

Third Circuit recusal procedure, the basics and beyond

Okay, quick show of hands — let’s see everyone who predicted that judicial recusal would ever be a national politics headline-grabber? Anybody?

First, there was a flurry of silly coverage about whether Judge Maryanne Trump Barry would recuse from the Bridgegate-disclosure appeal. Then the media tsunami about Donald Trump’s bashing a Hispanic district judge for not recusing from the Trump University case. All the sudden, judicial recusal is right up there with Game of Thrones and gorilla-enclosure practices amongst the key issues of our age that you’re expected to be able to discuss intelligently.

Fear not, I’m here to help.

The federal standard for judicial recusal is defined by statute, 28 USC § 455 (emphasis mine):

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

b) He shall also disqualify himself in the following circumstances:

1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
i) Is a party to the proceeding, or an officer, director, or trustee of a party;
ii) Is acting as a lawyer in the proceeding;
iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

That’s all pretty clear (albeit sexistly worded). Third Circuit IOP 11.2.2 elaborates on what counts as a financial interest.

Another situation not specifically mentioned in § 455(b) is where an appellate judge presided over the same case in trial court or state court. This comes up whenever a new circuit judge used to be a district or magistrate judge — that was true of six of the last seven Third Circuit appointees, so this pops up a lot. Third Circuit local rule 26.1.2 addresses this situation, requiring the parties to notify the court whenever it applies.

Okay, so that’s the standard, but what is the procedure for raising grounds for recusal? Recusal can happen either on the judge’s own initiative or at the request of a party.

Judicial-initiated recusal in the Third Circuit is covered by the circuit IOP 11.1:

11.1.1 Before cases are sent to a panel, the clerk transmits copies of the docket sheets and disclosure statements to each judge who responds promptly informing the clerk of those cases in which the judge is recused.

11.1.2 Each judge may submit to the clerk in writing those circumstances which would generally require a recusal, including names of businesses in which the judge or family members have a financial interest, names of lawyer relatives whose names may appear as counsel in the appeals, and names of law firms on whose cases the judge does not sit.

Third Circuit judges’ standing recusal lists (the second paragraph in 11.1) are not available to the public. But in the past the Third Circuit released information about at least one individual judge’s recusal practices. Howard Bashman reported that in 2000 the court disclosed that Judge Rendell recused herself from all cases in which a party or its law firm contributed over $2500 to her then-husband Edward Rendell’s political campaign, unless waived by the parties, and from any case involving such a contribution of $2500 or less if any party objected. Bashman reported in 2001 that Rendell’s contribution-related-recusal policy was on the Third Circuit’s website, but I don’t find any notices related to specific judges’ recusal policies on the website today.

Also, then-Judge Alito’s CA3 standing recusal lists were released to the Senate during his Supreme Court confirmation proceedings. He stated that his list included cases involving his sister’s law firm and, for his first four years on the court but not thereafter, cases he’d handled as a U.S. Attorney. His hearing testimony also indicated he updated his standing list annually.

Information about financial interests that could cause a judge to recuse is available from the disclosure forms that all federal judges are required to file annually. Those forms are available here (2015 reports are here [UPDATE: unfortunately now they’re behind a paywall], a searchable database is or at least was here), and I’ve mentioned them on the blog here and here.

Also, judges occasionally pledge to recuse from certain cases during their confirmation proceedings. For example, Alito’s circuit-nomination Senate questionnaire reportedly pledged to recuse from cases he had prosecuted as U.S. Attorney or involving certain companies.

For recusal requests raised by a party, 28 USC § 144 applies:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Whether recusal is initiated by the judge or by a party, either way a judge’s decision to recuse (or not to recuse) is normally not explained to the parties or the public. I’m not aware of any Third Circuit opinions where a judge explained his or her reasons for recusing or not recusing from a case (but I wouldn’t be surprised if it’s happened and I’ll update the post if anyone enlightens me). In a similar vein, there are Third Circuit cases about a district judge’s failure to recuse (notably US. v. Antar), but I don’t know of any about a circuit judge’s.

Not only do judges not explain why they recused, but in many cases no one outside the court will realize it happened. As indicated by IOP 11.1 quoted above, judge-initiated recusals normally occur long before the composition of the panel is disclosed to the parties. The recused judge is replaced on the panel, IOP 12.1, and the parties are none the wiser. But, at least for cases calendared by the court, it often will be apparent from the calendar when a judge may have recused from a specific case. If judges A, B, C comprise a panel deciding five cases submitted on a given day, but judges A, B, and D are the panel deciding another case, then it’s at least a good bet that judge C recused from the case D is hearing.

It’s easier to tell when judges have recused from considering a petition for rehearing en banc, because the order granting or denying rehearing en banc lists only the judges who participated, as I explained here. (But back in 2005 then-Chief Judge Scirica reportedly found frequent errors where recused judges were listed as participating; I don’t know how much such errors still occur.)

And I’ve also blogged here about a case decided earlier this year where the entire court apparently recused (due to one judge’s indirect financial stake in the case, as best I could tell [see John’s comment below]) and so the case was decided by a conflict panel of other-circuit judges.

So there you have it, recusal in all its glory. If I’ve overlooked anything, please post a comment or email me.

Divided Third Circuit panel upholds deportation based on special court-martial conviction

Gourzong v. AG — immigration — dismissal — Rendell

Under federal law, a non-citizen can be deported if he was “convicted of an aggravated felony,” and “convicted” requires a judgment of guilt “by a court.” Jamaican native Gurson Gourzong was convicted of an aggravated felony by a special court-martial. Unlike a general court-martial, a special court-martial is not necessarily presided over by a legally trained judge, and the record doesn’t clearly establish whether a legally trained judge presided over Gourzong’s special court martial.

Today, a divided Third Circuit panel held that, because “as a general matter” special courts-martial qualify as courts, therefore the special court-martial conviction here was a judgment by a “court,” and accordingly Gourzong was removable. In a footnote, the panel left open the possibility that aliens could prove their specific special courts-martial were not “courts,” but said Gourzong had made no such showing.

Judge Cowen dissented. The nub of his disagreement came down to his position that it should have been the government’s burden, not the alien’s, to establish that the specific special court-martial at issue qualified as a court. He also disagreed that the special courts-martial typically qualfied as courts, noting that the presiding officers lack military judges’ training and independence. And he criticized the government’s conduct in the case, noting its history of changing its position and its failure to timely file its brief.

Joining Rendell was Fisher; Cowen dissented. Arguing counsel were Craig Shagin of the Shagin Law Group for the petitioner and Jesse Bless for the government. The panel thanked Shagin for agreeing to serve as pro bono counsel for his “excellent advocacy” in the case, and Cowen  praised Shagin as “Gourzong’s able pro bono counsel.”

[As the circuit’s resident typography scold, I register my horror that the majority opinion put its record cites in boldface. My horror is mitigated only partially by the opinion’s use of hard spaces after section symbols.]

Becker, Higginbotham, and Ambro — three of Posner’s “great” judges

The second half of Seventh Circuit Judge Richard Posner’s provocative and essential Green Bag essay on the federal judiciary is out, here. (First part here.)

Third Circuit enthusiasts, take note:

It is not merely nostalgia that reserves the adjective “great” for a bare handful of Justices all dead, all of whom were pragmatic, moral, and in a nonpartisan sense “political”: Marshall, Holmes, Brandeis, Cardozo, Hughes, Jackson, the two Harlans, perhaps a few others (Story? Black? Rehnquist? Frankfurter?).16

16 And on the lower courts Traynor, Friendly, L. Hand, Kozinski, Boudin, Leval, Wisdom, Leventhal, Wilkinson, Magruder, C. Fried, Wyzanski, Weinstein, Vanderbilt, BeckerHigginbotham, Edwards, Shaw, Liu, Linde, Katzmann, Ambro – and many others.

I count only four active circuit judges in that footnote, including Judge Ambro.

H/T: How Appealing.

“[I]t is difficult to believe that this highly ethical and respected judge condones behavior that diminishes the judicial branch that she has served so well”

District Judge John Jones III of the Middle District of Pennsylvania had this op-ed in Sunday’s Philadelphia Inquirer, entitled “Commentary: Trump’s criticism of judge unwarranted and dangerous.” He criticizes Trump for his criticism of Judge Gonzalo Curiel, the California federal judge presiding over the Trump University case. Judge Jones notes that Judge Curiel asked him not had not asked him to speak out, but that he thought it important to do so.

One interesting passage:

Here is a not-so-surprising disclosure: Judges are all too human and deeply imperfect. We can certainly get it wrong. Indeed, I have been told that on a number of occasions by a court of appeals. And we are hardly above being criticized by the public. I know this only too well, having decided a number of high-profile and controversial cases during my 14 years on the bench that have generated searing personal criticisms. That is as it should be in a democracy.

Another:

Of course Trump should and likely does know better than to believe that judges operate this way. His sister Judge Maryanne Trump Barry is an accomplished and superb member of the Third Circuit U.S. Court of Appeals, based in Philadelphia. Barry has participated in countless decisions involving controversial cases and has served with great distinction. I cannot know what Barry thinks of her brother’s views on Curiel, but it is difficult to believe that this highly ethical and respected judge condones behavior that diminishes the judicial branch that she has served so well.
You don’t see that every day.
UPDATE: Post updated to correct my error.

“Trump’s sister, the federal judge, ‘a little different’ from him”

The title of this post is the headline of a winning story by Jane Musgrave today in the Palm Beach (Fla.) Post. I’m quoted, but I was outdone in the memorable-quote department:

“She’s quiet. She doesn’t go to the balls,” longtime family friend and Florida Trump delegate Robin Bernstein said, struggling to find the words to describe Barry. “She’s everything you’d want a judge to be. She’s eloquent and articulate.”

Indeed.

Which reminds me, I forgot to post this article by Robin Bravender last week on Greenwire, also comparing Judge Barry to her brother (and also quoting me). The headline: “Trump’s sister likes EPA better than he does.”

A Friday-morning shaking of my little fist against perceived injustice

Suppose, dear reader, you are in prison, convicted of murder. You believe you are innocent. You lost your direct appeal, so now you don’t get an appointed lawyer, you’re poor, and you have to prove your innocence by yourself, from prison. Good luck!

Then, a miracle. Another prisoner — call him McDougald — talked to your co-defendant, and your co-defendant admitted to McDougald that he committed the murder, not you, and that he lied at your trial in exchange for a lenient sentence for himself.  McDougald sent you a declaration laying out what your co-defendant admitted. Eureka!

Is McDougald telling the truth? Will the court believe him? Well, McDougald also gave you some corroboration. The co-defendant told McDougald that he left a fingerprint at the murder scene. McDougald also sent you the police forensic report, which the prosecution never turned over to you, confirming that they found the co-defendant’s fingerprints there.

You’re saved! But then, disaster.

Before you can file your blockbuster new evidence, you break a prison rule. As punishment, you’re going to be put in the Restricted Housing Unit. When the guards come to move you, they see that you have four boxes of legal materials, including McDougald’s declaration and the fingerprint report. You’re allowed to have four boxes of legal materials — but when you’re in the RHU, you’re only allowed to have one box.

And now it gets Kafkaesque: The guards tell you that since you have four boxes and RHU prisoners are only allowed to have one box, they’re going to seize all four boxes and destroy them. (Oh, and the cherry on top is they write you up again, for possession of contraband — your legal papers.)

*

Now you see why I’m an appellate blogger instead of a crime-story writer.

*

The foregoing facts are from Coulston v. Superintendent, a non-precedential per curiam opinion issued yesterday by the Third Circuit panel of Ambro, Shwartz, and Nygaard. After SCI Houtzdale guards seized prisoner Troy Coulston’s files, he filed a civil-rights suit alleging denial of his constitutional right of access to the courts. Prisons don’t get to destroy inmates’ legal papers every time they break a prison rule, right?

To win his access-to-the-courts claim, Coulston had to show that he lost a chance to pursue an underlying claim that was “nonfrivolous” or “arguable,” and that he has no other remedy. Sounds like Coulston, no? But, in his pro se complaint, the remedy Coulston sought was money damages, and the Third Circuit found this fatal to his claim:

Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), he cannot do so at this time. Heck holds that a damages remedy that necessarily implies the invalidity of a criminal conviction is impermissible while that conviction stands. Id. Coulston cannot demonstrate that the loss of his PCRA claim injured him unless he also demonstrates that his PCRA petition had merit, which necessarily would imply the invalidity of his murder conviction. [Cites to three 7th Circuit cases omitted.]

But wait. Does his access-to-the-courts claim “necessarily” imply the invalidity of his conviction? All Coulston has to show is that his underlying claim is “nonfrivolous,” not that it’s meritorious. Non-frivolousness doesn’t necessarily imply invalidity any more than probable cause would necessarily imply guilt beyond a reasonable doubt.

In other words, a finding that Coulston’s underlying claim is nonfrivolous plainly would not entitle him to release. Compare Heck, where the Court expressly relied on the lower court’s view that “if he won his case the state would be obliged to release him even if he hadn’t sought that relief.” That’s what “necessarily” means. Said Heck: “if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.” Hey, Coulston, that’s you.

And ohbytheway what a wacky Catch-22. You can sue the prison for taking away your ability to overturn your conviction, but only if you overturn your conviction first. How exquisite!

At an absolute minimum, given the apparent absence of controlling precedent on whether Heck bars access-to-courts claims for money damages, was this a question appropriate to decide in a non-precedential opinion? (Not just non-precedential, by the way, but also unsigned and issued one day after submission to the panel, without oral argument, and after denying the pro se litigant’s request for counsel despite “acknowledg[ing] the concerns Coulston expresses in his motion for counsel” because “we conclude he should nevertheless be capable of presenting his appeal.”)

Not in my book.

To its credit, the panel tries to soften the blow in a footnote, stressing that dismissals under Heck are without prejudice and explaining that prisoners may avoid dismissal under Heck by seeking injunctive relief instead of money damages.

Well, hooey. If the prison already destroyed Coulston’s files, what good will an injunction do him? And what non-moot injunctive relief would he even have standing to seek? If SCI Houtzdale really does have a policy of immediately destroying prisoners’ legal files, how could any prisoner bring a justiciable injunctive-relief claim? Besides, I see nothing in the opinion to discourage a district court from simply staying Coulston’s injunctive-relief-seeking action and then denying it once Coulston has failed to overturn his conviction.

The footnote also says prisoners alleging denial of access to the courts may ask the courts to extend the time for filing their habeas petitions, citing a district court case. But neither 28 USC 2244(d)(1)(B) nor the vanishingly narrow equitable tolling doctrine give me much confidence any prisoner will be able to benefit from this suggestion, either, even if you assume that more time always cures file destruction.

The footnote concludes, “Heck is thus an obstacle, but not an insurmountable one, to obtaining review of a conviction when a prisoner is denied access to the courts.” I wish I shared the panel’s optimism.

If I’m completely off my rocker here — wouldn’t be the first time — I’d sure be grateful to be set straight.

“But the results are so absurd that they call out for review by the highest court itself.”

So sayeth prominent legal columnist Noah Feldman in this post today on Bloomberg.com. He’s talking about the Third Circuit’s panel majority’s decision earlier this week in Free Speech Coalition, which I posted about here. Professor Feldman’s column, after slamming the opinion as “absurd” and “tone-deaf,” concludes by predicting that the Supreme Court “is likely to respond.”

Former CA3 Judge Lewis on judicial-nomination obstructionism: “It doesn’t have to be this way.”

Chris Mondics has a neat story this morning on Philly.com, entitled “History contradicts party-line animosity.” It features retired Third Circuit Judge Timothy Lewis, now at Schnader Harrison, describing the process by which he was confirmed, quickly and unanimously, after being chosen by Arlen Specter and nominated by Pres. George H.W. Bush. The article suggests that Lewis’s non-partisan confirmation “might point the way forward for the U.S. Supreme Court nomination of Merrick Garland,” but it’s equally instructive for the pending Third Circuit nomination of Rebecca Haywood.

Recommended.

 

New opinion — court rules for pornography producers in challenge to records laws

Free Speech Coalition v. AG — civil — vacatur — Smith

A divided Third Circuit panel today ruled in favor of pornography-industry plaintiffs challenging federal laws requiring them to maintain and allow inspection of certain records. The majority ruled that the statutes and regulations were content based and thus subject to scrutiny under the First Amendment. It further held that the inspection provisions facially violated the Fourth Amendment. Dissenting on the First Amendment issue, Judge Rendell argued strict scrutiny should not apply. This case was before the court for the third time; I discussed the previous round here.

Joining Smith was Scirica, with Rendell dissenting. Arguing counsel were J. Michael Murray for the plaintiffs and Anne Murphy for the government.

Volokh Conspiracy analyzes a pending Third Circuit self-incrimination case

Orin Kerr just posted an interesting piece on the Volokh Conspiracy blog discussing a pending Third Circuit appeal.

His post is entitled, “The Fifth Amendment limits on forced decryption and applying the ‘foregone conclusion’ doctrine,” and his subject is United States v. Apple Macpro, No. 15-3537, a pending appeal from an EDPA civil contempt order for failing to provide passwords to decrypt a hard drive believed to contain child pornography. (A New York Times story on the underlying case is here.)

After discussing the parties’ briefs, which he links in his post, Professor Kerr suggests “a pretty simple Fifth Amendment rule:”

On one hand, the government can’t make you enter in the password if that is how they make the case that you know it. On the other hand, if the government already knows that you know the password, you can be required to enter it in without a Fifth Amendment bar.

Worth a read.

New criminal sentencing opinion

United States v. Thompson — criminal — affirmance — Greenaway

In 2014, the US Sentencing Commission amended the sentencing guidelines to retroactively reduce the advisory range for many drug-crime sentences. A defendant who was sentenced before the change can get the reduction too, but only if their sentence was “based on” the earlier higher range and the reduction would be consistent with Sentencing Commission policy, 18 USC § 3582. A different guideline range applies to career offenders, and that range didn’t go down.

Today’s appeal presents an interesting question: what about defendants who qualified to be sentenced using the career-offender range (which didn’t change) but who made a deal so that they actually were sentenced under the standard range (which did). Can they get the reduction?

The Sentencing Commission answered this question, unfavorably to defendants, in a policy statement called Amendment 759. But both of the defendants here committed their crimes before Amendment 759 was enacted, and they argued that applying it against them would be ex post facto punishment.

Today, the Third Circuit held that the defendants’ sentences were “based on” the lowered guidelines range but that reducing their sentences was not consistent with Sentencing Commission policy, and that applying the policy against them did not violate the ex post facto clause because denying them the reduction “does not lengthen the period of time they will spend incarcerated–it merely denies them the benefit of a discretionary reduction of that period of time.” (Offhand I’d have thought the sounder basis for rejecting the defendants’ position was that at the time of their crimes they had no grounds to expect a non-career-offender-range deal.)

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument; pending Third Circuit nominee Rebecca Haywood was one of the government’s attorneys.

Trump’s judge-bashing, closer to home

Perhaps you’ve noticed Republican presidential candidate Donald Trump in the news lately. This week, the main storyline has been Trump’s criticism of the California federal district court judge presiding over a suit over Trump University. Here’s one story among gazillions.

Yesterday’s New York Times featured an article headlined, “A Biased Judge? Donald Trump Has Claimed It Before.” As a Third Circuit junkie, here’s the passage that jumped out at me:

Mr. Trump ridiculed a Pennsylvania judge appointed by President Jimmy Carter as “not his most brilliant appointment,” and wrote that the judge was “a willing accessory” to any crimes of convicts she had released from prison.

He does this despite his close ties to a federal judge, Maryanne Trump Barry, his sister.

What? A Pennsylvania judge appointed by Carter? Was he talking about Judge Sloviter? The article didn’t say.

So I went digging. It turns out he wasn’t talking about Sloviter, he was talking about EDPA Judge Norma Shapiro. The comments are from Trump’s 2000 book The America We Deserve. Trump argues we need judicial elections because “Criminals are often returned to society because of forgiving judges” and “When they hurt us, we need to make sure we can vote them out of the job.” He muses “what wonders a public vote would work on the career of Norma Shapiro,” then describes a 90’s case where she ordered prisoners released due to prison overcrowding. (Here’s one contemporary news story.) He called the ruling a “disaster” and “Shapiro’s jailbreak,” and said:

From 1998 to 1992, 20 percent of thugs arrested for killing cops were out on probation or parole. In my opinion, Judge Shapiro was a willing accessory to all those crimes.

Trump went on to write, “Unfortunately, there are plenty of Shapiros out there, which is one major reason why our streets are full of dangerous convicts.” Conclusion: “Clearly we don’t have too many people in prison. Quite the contrary.”

I have not seen any reporting at all on whether Trump still believes federal judges should be elected, and he has largely avoided discussing criminal-justice reform.

So, not Sloviter, but still extraordinary.

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

Cen v. Attorney General — immigration — reversal — Krause

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

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

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

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

 

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

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

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

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

News update

Yesterday Andrew Seidman had an article on Philly.com entitled “Arcane legal issue could keep Bridgegate list secret,” summarizing the parties’ recent Third Circuit filings.

On Friday Nick Rumell had this article on Courthouse News Service entitled “Pa’s Ballot Access Rules Unfair to Third Parties,” discussing the Third Circuit’s ruling last week in Constitution Party and quoting prevailing counsel.

An interesting divided-panel employment-discrimination case that’s unpublished

I rarely blog about the Third Circuit’s non-published opinions, but the court issued one today which readers may find interesting. The case is Young v. City of Philadelphia Police Dept.

The appeal arises from a Title VII retaliation suit brought by a woman against the Philadelphia Police. The gist of her complaint is that, after she filed a sexual-harassment complaint against a fellow police trainee, the department retaliated by commencing a campaign of disciplinary write-ups for minor violations that she’d never been punished for before her complaint.

Title VII retaliation claims proceed in 3 stages: (1) the plaintiff must make a prima facie case of retaliation, (2) the employer must provide a legitimate non-discriminatory reason for its adverse employment action, and (3) the plaintiff must prove that the proffered explanation was pretextual and retaliation was the real motive. Here the district court granted summary judgment in favor of the employer. It ruled that the plaintiff failed at the first, prima facie stage because she did not show that retaliation was the  but-for cause for her discipline.

All three members of the Third Circuit panel agreed that the district court was wrong to require but-for causation at the first, prima facie stage. The majority opinion observed that the district court’s error was understandable “[b]ecause we have not stated in a precedential opinion that ‘but for’ caustion is not required at the prima facie stage of summary judgment analysis.”

The panel majority (Shwartz joined by Greenaway) affirmed anyway, ruling that the plaintiff failed to carry her burden at the the third, pretext stage. Vanaskie dissented because he believed the plaintiff’s pretext showing created a material issue of fact sufficient to survive summary judgment.

I have a few thoughts:

First, the opinion says the district court was wrong to require but-for causation at the prima facie stage, and it expressly acknowledges that no prior precedential opinion so holds. So why the heck is this opinion unpublished?

Second, the fact that there’s a dissent on the pretext issue adds a least a little to my surprise that it’s unpublished. While there’s certainly no rule that says that divided-panel opinions have to be published, they often are.

Third, the way the panel split here is interesting. I consider Vanaskie to be generally more conservative than Greenaway or Shwartz (see, for example, his recent en banc voting record), but most would consider his position here (favoring an employment-discrimination plaintiff) more liberal.

Finally, on a first read I found Vanaskie’s dissent pretty persuasive. But I’d be surprised if the votes are there for en banc rehearing.

Anyway, interesting case, and happy Friday.

An update on en banc petitions

A couple quick updates on the Third Circuit’s en banc rehearing front:

First, the court denied en banc rehearing in the NFL concussion-suit case. Media coverage here and here and in interesting blog post here.

Second, the panel losers in In re Asbestos Products Liability (panel decision post here) filed earlier this week for en banc and panel rehearing, coverage here.

Finally, I’ve got a hunch that draft opinions are circulating already in the Chavez v. Dole Food case argued en banc in February.

Third Circuit affirms ruling striking down PA third-party ballot-access limits, and wallops the AG

The Constitution Party of Pa. v. Cortes — election law — affirmance — Smith

The Third Circuit has been issuing some fascinating opinions over the past few weeks, and today brings another. The court affirmed a summary judgment grant in favor of several political parties who challenged Pennsylvania’s election-law system for making it too difficult for third parties to get on the ballot.

The defendants in the case were two state elections officials, and they were represented on appeal by the office of the PA attorney general. The officials did not challenge the substance of the district court ruling that the state’s ballot-access provisions were unconstitutional as applied. Instead, the officials appealed only two issues their brief characterized as “relatively narrow” and “more technical,” namely whether the district court’s order was invalid because it denied a facial challenge but accepted an as-applied challenge and whether the plaintiffs sued the wrong state officials.

The opinion amounts to a brutal indictment of the competence of the OAG’s advocacy in the case, an indictment all the more remarkable coming from one of the court’s most even-tempered judges. On the first appeal issue, the appellants “misunderstand[] the fundamental difference between facial and as-applied challenges.” Ouch. On the second issue, their position “falls apart once one properly understands the District Court’s opinion” and “is, to say the least, off the mark.” Pow.

Perhaps the most withering criticism comes in a footnote discussing the appellants’ decision not to challenge the district court’s ruling that the plaintiff’s constitutional rights were violated (emphasis mine):

In its opening brief, the Commonwealth notes that “[t]he legal rub here is that, even assuming some constitutional injury, or potential injury, has been inflicted on the litigants . . . that injury was not and could not be inflicted by the two officials they sued . . . .” Appellants’ Br. at 3. The Commonwealth then makes the two arguments discussed above but never addresses the District Court’s opinion on the merits. The Aspiring Parties take note of this and state that “the Commonwealth concedes that the challenged statutory scheme is unconstitutional as applied to the Minor Parties.” Appellees’ Br. at 28. In its reply, the Commonwealth argues that “[t]here was no concession.” Appellants’ Reply Br. at 3. Instead, the Commonwealth tries to argue that somehow they were able to dodge the merits of this case by assuming an injury and only raising these narrower issues on appeal. This displays a fundamental misunderstanding of the federal appellate process: by not challenging the merits of the District Court’s order, if the Commonwealth loses on the two arguments it raised in this appeal, the order will remain in effect and the Commonwealth will not be able to enforce both provisions against the Aspiring Parties. Indeed, at oral argument the Commonwealth conceded that this was a conscious decision, but when asked why it chose such a litigation strategy, its answer was more opaque than illuminating. See Oral Argument at 00:10:20, Cortes v. Constitution Party of Pa., (No. 15-3046).

Language like that is rare in this circuit; seeing it directed at lawyers in an office of a state attorney general is extraordinary. What a disaster.

Joining Smith were Ambro and Krause. Arguing counsel were Oliver Hall of the Center for Competitive Democracy for the third-party challengers and Claudia Tesoro of the Office of the Attorney General, joined on the brief by three other OAG lawyers and one law firm lawyer, for the state officials.

Divided panel issues significant abortion-clinic-access ruling

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

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

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

The blockbuster language from Jordan’s opinion:

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

Fuentes disagreed:

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

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

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

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

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

Is the Third Circuit a “Judicial Hellhole?”

H. Sherman “Tiger” Joyce, president of the American Tort Reform Association, had a column on WashingtonTimes.com yesterday (link here) criticizing the Third Circuit’s 2015 ruling in In re Avandia Marketing. Joyce argues that RICO suits challenging drug-company marketing such as Avandia Marketing are an “important and obvious misuse of RICO” and he urges the Supreme Court to review the case.

Of note to Third Circuit readers:

The good news is that most courts have seen through the lie. * * *

But in Philadelphia, once criticized by The Wall Street Journal as “The City of Unbrotherly Torts” and twice in the past six years ranked by my organization as the worst of the nation’s civil court “Judicial Hellholes,” a federal trial judge denied GlaxoSmithKline’s motion to dismiss the dubious fraud claims of three labor union-affiliated health insurers. And splitting with three other circuit courts, the U.S. Third Circuit Court of Appeals recently upheld the trial court’s decision to proceed with the case.

So GSK has appealed again to the U.S. Supreme Court, which now has a chance to clarify the law and end this pernicious new line of legal extortion that will only exert more upward pressure on drug prices as still higher litigation costs are passed on to consumers. Justices are expected to meet June 2 to decide on additional cases they’ll hear next term, and everyone concerned about the affordability of medicines should hope they agree to hear this appeal.

If the Third Circuit’s decision is allowed to stand, opportunistic personal injury lawyers, their third-party payer clients and even some politically ambitious state attorneys general will be encouraged to misuse frivolous RICO lawsuits every time a pharmaceutical company changes warning label language in the interest of public safety.

The circuit court’s loose application of well-settled RICO causation and injury principles, and its disregard of general pleading standards under the Supreme Court’s Twombly and Iqbal decisions, can only invite third-party payers to seek windfalls — even if they never directly relied on a drug company’s allegedly fraudulent marketing or suffered an injury.

So Ambro, Scirica, and Roth, plus Rufe, all got bamboozled into loosely applying RICO and disregarding general pleading standards, huh? Color me skeptical.

 

Civ Pro refresher: suing the wrong defendant isn’t a standing issue

Davis v. Wells Fargo — civil — vacate in part — Jordan

The Third Circuit vacated in part in this messy civil appeal arising out of a foreclosure dispute between a homeowner, Wells Fargo bank, and an insurer. The court affirmed dismissal of the homeowner’s claims against Wells Fargo on claim preclusion and statute-of-limitations grounds. But the court reversed the dismissal of claims against the insurer. The district court had dismissed the case on standing grounds because the homeowner sued the wrong corporate entity, but the Third Circuit explained that “this case is not about standing at all” and that whether plaintiff sued the right defendant should have been decided under Rule 12(b)(6), not 12(b)(1). The opinion gives a lucid analysis of when each rule applies and why it matters.

While affirming dismissal of the claims against Wells Fargo, the court included this striking footnote:

Although we affirm the District Court’s dismissal of Davis’s claims against Wells Fargo, we would be remiss if we did not add a note about the disturbing allegations he has made. If they are true, the bank locked Davis out of his home before starting foreclosure proceedings, initiated a series of fraudulent assignments of the mortgage, and obtained insurance on the Property as part of a kickback scheme with the insurer while Davis paid excessive premiums. Although the insurance should have covered the leak and damage to the wall, Wells Fargo allegedly settled the damage claim for a payment of $317 – for roof repairs – but then took no action to actually repair the roof. And all of this took place during and around the time that Davis was serving three years of active duty in the United States Army in a time of war.

When asked about those facts during oral argument, Wells Fargo did not dispute their veracity, nor did its counsel seem particularly concerned about the brazenly exploitative character of the alleged actions of the bank. In one telling portion of the argument, when asked whether the bank had the right to make an insurance claim, take money for a roof repair, and then pocket that money and not make the repair, all while knowing the result could be further deterioration and structural damage to the Property, counsel said simply, “that is what the mortgage gives them the right to do.” See Oral Argument, http://www2.ca3.uscourts.gov/oralargument/audio/15-2658Davisv.WellsFargo.mp3, at 19:13-19:38 (argued March 2, 2016). If the allegations are true, they raise serious questions about bad faith that we are not now in a position to address. Suffice it to say, however, that although we affirm the dismissal of Davis’s claims, we hope the allegations of the amended complaint do not reflect Wells Fargo’s actual business practices.

Congratulations, Wells Fargo and counsel on your appellate victory!

Joining Jordan were Greenberg and Scirica. Arguing counsel were Earl Raynor for the homeowner, Stacey Scrivani of Stevens & Lee for Wells Fargo, and Matthew Faranda-Diedrich of Dilworth Paxson for the insurer.

A rare dissent from denial of rehearing en banc

Easy to miss among the unpublished opinions issued today was an order denying rehearing en banc in United States v. Kelly. The panel opinion, also unpublished, is here. It was authored by Greenaway and joined by Scirica and Roth.

Here’s the interesting part: four judges (McKee, joined by Ambro, Smith, and Restrepo) dissented from the denial of rehearing. Any dissent from denial of rehearing is quite rare in the Third Circuit. It’s rarer still given that the panel opinion was both unpublished and unanimous, and that none of the dissenters sat on the panel.

The heart of the issue is how jurors are instructed in drug-conspiracy cases, specifically whether those instructions unjustly expose mere purchasers to criminal liability as conspirators. McKee’s opinion explains his basis for dissenting in this introduction:

I appreciate that the panel’s decision in this case was
dictated by circuit precedent and that my colleagues therefore
felt compelled to affirm the jury’s determination that Kelly’s
membership in the Alford drug distribution conspiracy had
been proven beyond a reasonable doubt. However, I take the
unusual step of filing this opinion sur denial of rehearing to
explain why we have made a mistake by not availing
ourselves of this opportunity to reexamine our jury
instructions in drug conspiracies. I do so even though this
appeal has been resolved in a non-precedential opinion
because our current approach to informing jurors how to
distinguish between a purchaser from a drug conspiracy and a
member of that conspiracy is so meaningless that it presents
the illusion of an objective standard while furnishing no
guidance to jurors who must make this crucial distinction.

Our current standard for channeling a jury’s inquiry in
such prosecutions fails to provide a jury with sufficient
guidance to allow jurors to appropriately differentiate
between customers and co-conspirators. Although some of
our factors may be relevant to this inquiry, the irrelevant
factors I discuss below create the very real danger of placing
a thumb on the conspiratorial side of the scale and thereby
tipping the balance in favor of a conviction for conspiracy
when only a buyer-seller relationship has been established.
Because there is no way of knowing how this jury would have
viewed the circumstantial evidence against Kelly if that
additional weight had not been added to the conspiratorial
side of the scale, I believe this case “involves a question of
exceptional importance,” meriting en banc reconsideration.
Fed. R. App. P. 35(a).

He concludes thus:

Given the extent to which illegal drugs and illegal drug
sales continue to devastate and destroy lives and
communities, I have no doubt that we will have another
opportunity to revisit the factors we use in attempting to
distinguish between purchasers and co-conspirators.
Regrettably, in the interim we also will no doubt expose
numerous purchasers of drugs (even those who purchase
merely to “feed” their own addiction) to the exponentially
greater penalties that attach to being a member of a drug
conspiracy. I therefore take this opportunity to express my
concern that we are failing to afford jurors the guidance they
need and that the law requires in deciding whether evidence is
sufficient to establish guilt beyond a reasonable doubt in
cases such as this. Worse yet, the “guidance” that we do give
jurors is not only less than helpful, it is misleading because it
can be an open invitation to convict mere purchasers of illegal
drugs of the far more serious crime of being a member of a
drug conspiracy. Accordingly, I now echo the concern
expressed by Judge Becker a decade and a half ago and
explain why we should avail ourselves of this opportunity and
grant Kelly’s petition for rehearing.

Thirteen judges participated in the en banc rehearing decision, so the dissenters apparently fell three votes short, with five judges appointed by Democratic presidents not dissenting.

(I say “apparently” because nothing requires a judge who voted in favor of rehearing en banc to dissent from the denial. So it’s theoretically possible that one or two judges voted to grant rehearing but declined to join McKee’s dissent or issue their own.)

Two new opinions — a big telecom case and a little criminal-sentencing case

Stirk Holdings v. FCC — agency / telecom — vacate and remand — Ambro

Here is the remarkable introduction to Judge Ambro’s remarkable opinion today scolding the FCC:

Twelve years have passed since we first took up challenges to the broadcast ownership rules and diversity initiatives of the Federal Communications Commission (“FCC” or “Commission”). In some respects the Commission has made progress in the intervening years. In key areas, however, it has fallen short. These shortcomings are at the center of this dispute—the third (and likely not the last) round in a protracted battle over the future of the nation’s broadcast industry. Specifically, the parties present challenges to the Commission’s “eligible entity” definition, its Quadrennial Review process, and its rule on television joint sales agreements.
Although courts owe deference to agencies, we also recognize that, “[a]t some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.” Public Citizen Health Research Group v. Chao, 314 F.3d 143, 158 (3d Cir. 2002) (emphasis and internal quotation marks omitted). For the Commission’s stalled efforts to promote diversity in the broadcast industry, that time has come. We conclude that the FCC has unreasonably delayed action on its definition of an “eligible entity”—a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership—and we remand with an order for it to act promptly.

Equally troubling is that nearly a decade has passed since the Commission last completed a review of its broadcast ownership rules. These rules lay the groundwork for how the broadcast industry operates and have major implications for television, radio, and newspaper organizations. Although federal law commands the Commission to conduct a review of its rules every four years, the 2006 cycle is the last one it has finished; the 2010 and 2014 reviews remain open. Several broadcast owners have petitioned us to wipe all the rules off the books in response to this delay—creating, in effect, complete deregulation in the industry. This is the administrative law equivalent of burning down the house to roast the pig, and we decline to order it. However, we note that this remedy, while extreme, might be justified in the future if the Commission does not act quickly to carry out its legislative mandate.

Whereas the first two issues before us involve agency delay, the third is a challenge to agency action. The Commission regulates the number of television stations a company can own. In 2014, it determined that parties were evading its ownership limits through the influence exerted by advertising contracts known as joint sales agreements. As a result, it created a rule designed to address this perceived problem. However, we conclude that the Commission improperly enacted the rule; hence we vacate it and remand the matter to the Commission.

Ambro was joined by Fuentes; Scirica dissented in part because he would have gone further and ordered the FCC to issue its 2010 quadrennial review within 6 months. Arguing counsel were David Gossett for the FCC, and Helgi Walker of Gibson Dunn, Patrick Philbin of Kirkland & Ellis, and Georgetown Law professor Angela Campbell for various petitioners/intervenors.

 

United States v. Nerius — criminal sentencing — affirmance — Shwartz

Jean Nerius was convicted of two crimes. He was classified as a career offender at sentencing, resulting in a sentencing guidelines range of 37 to 46 months. Although his pre-sentencing prison-discipline record was bad, the judge sentenced him at the bottom of that range, 37 months. But the career-offender designation was error, so Nerius was resentenced. This time his guideline range was 30 to 37 months. And since his original sentencing his disciplinary record had been spotless. But this time the sentencing judge sentenced him to 36 months, near to top end of the guideline range and just one month less he’d gotten than when he was deemed a career offender.

On appeal, Nerius argued that his new sentence was presumptively vindictive — that the sentencing judge should be presumed to have punished him for winning his first appeal by going from a bottom-of-the-old-range sentence to an-almost-top-of-the-new-range sentence, when the only thing that had apparently changed since the first sentencing (besides the fact that he was no longer deemed a career offender) was that he’d been a model prisoner for the past two years.

Today, the Third Circuit rejected Nerius’s argument and affirmed his sentence. The panel said that no presumption of vindictiveness applies because the new sentence was shorter than the old one, period. The fact that the sentence went from the bottom of the guideline range to near the top, with no intervening bad acts, did not trigger the presumption.

If you believe that sentencing judges put much stock in guidelines ranges and career-offender designations, you’re more likely to think this ruling is unjust. If you don’t, well, you probably don’t. In that vein, it’s interesting that the panel consisted of two former district judges and one former magistrate judge.

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

A divided panel applies civil rules strictly to dismiss an appeal as untimely

State National Insurance v. County of Camden — civil — dismissal — Fisher

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal because the appeal was untimely. It’s an interesting case both factually and legally.

The appeal was brought from dismissal of a legal malpractice suit. The legal malpractice suit, in turn, arose from a civil suit. A person injured in a car crash sued Camden County alleging negligent maintenance. The county had an insurance policy with a $10 million limit. The lawyer who represented the county allegedly told the insurance company (belatedly) that the case was meritless and she valued it at $50,000. But after a trial the jury awarded the victim $31 million, later remitted to $19 million. Four days later, the insurer sued the county and the attorney. (Actually, the former attorney — her Linkedin page states that she took “a very early retirement,” moved to another state, and became a realtor.)

Now here’s where things get tangled procedurally. The insurer’s original complaint against the lawyer — one of the 2 defendants — was dismissed in 2010. The insurer filed a motion to reconsider that ruling under Rule 59(e), and also a motion to certify an immediate appeal under Rule 54(b), both of which were denied. For the next four years, the insurer litigated its claims against the other defendant, the county. The district court eventually denied the insurer’s motion for summary judgment. The insurer believed that this denial undermined the basis for the earlier dismissal of the claims against the lawyer, so it sought to reinstate those claims under Rule 60(b)(6), and the court ordered briefing on the motion. While motion to reinstate the claims against the lawyer was pending, the insurer and the county settled the claims against the county, The joint stipulation of dismissal between the insurer and the county recited that the insurer wanted to renew its claims against the lawyer. The district court then denied the motion to reinstate the claims against the lawyer, and 15 days later the insurer filed a notice of appeal from the denial of the motion to reinstate the claims against the lawyer. FRAP 4 provides 30 days to file a notice of appeal after entry of judgment or the order appealed from.

The appeal turned on whether the insurer’s appeal involving its claims against the lawyer was timely, and the panel split. The majority (Fisher joined by Chagares) held that the appeal was untimely. Rule 60(b)(6) gives district courts authority to undo final judgments, it explained, and at the time when the insurer filed its 60(b)(6) motion the judgment was not final because the claims against the county remained pending. Thus Rule 60(b)(6) “was not a proper avenue by which to challenge” dismissal of the claims against the lawyer, and as a result the majority treated it as a nullity. And, while district courts also have inherent power to reconsider prior interlocutory orders, that power ends when the court loses jurisdiction, which the majority held happened when it entered a voluntary stipulation of dismissal of the claims against the county, even though no entry of judgment resulted from that. And because the 60(b)(6) motion was “not a proper Rule 60(b) motion,” the majority ruled that it could not toll the appeal-filing deadline under FRAP 4(a)(4)(A). The majority acknowledged that its ruling was “strict.”

Judge Jordan dissented, beginning:

The Majority acknowledges that its interpretation of the operative rules of procedure is “strict.” But the interpretation goes beyond strict: with all respect, it is wrong.

He reasoned:

As the Majority would have it, State National could only maintain its appeal rights by choosing between two bad alternatives: it could abandon its settlement of its separate claim against the County, or it could appeal the dismissal of the claims against Whiteside even as the District Court was actively reconsidering that dismissal. The federal rules of civil procedure and of appellate procedure are meant to permit the “just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, and to allow district courts to fully resolve all issues in the first instance so that appellate review is not “piecemeal,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). It would therefore be strange if the rules really did put State National in that bind.

In Jordan’s view, the insurer’s Rule 60 motion to reinstate the claims against the lawyer kept those claims open until the court ruled on the motion. He disagreed that the district court lost its power to reinstate the claims against the lawyer when the claims against the county were voluntarily dismissed, and also disagreed that the Rule 60(b) motion was a nullity because it was filed before the voluntary dismissal. In a footnote, he noted that the majority “are abolishing Rule 60(b) relief for parties in [the insurer’s] position” because any motion would be too early, too late, or, as here, both.

I’m betting the farm that the insurer will seek rehearing en banc, and rare though en banc rehearing is, I think such a motion has a realistic chance of being granted here. On first reading, I find the dissent’s analysis more persuasive. It’s one of the strongest Third Circuit dissents I’ve seen in recent years.

As noted, Fisher was joined by Chagares and Jordan dissented. Arguing counsel were Walter Andrews of Hunton & Williams for the insurer and Michael Canning and Matthew Fiorovanti of Giordano Halleran for the appellee.

 

New opinion — Court affirms plaintiffs’ win in overtime suit

Mazzarella v. Fast Rig Support — employment — affirmance — Shwartz

Two trucking companies hired drivers to haul water used for fracking. Although the drivers often worked more than 40 hours per week, the companies only paid them overtime above 45 hours per week. The drivers sued, alleging that the failure to pay them overtime for all hours over 40 per week violated the Fair Labor Standards Act. The companies argued that they were exempt from FSLA’s overtime rules per the Motor Carrier Act. The district court ruled that the companies failed to prove they met the MCA exemption. Today, the Third Circuit affirmed, noting that, while the defendants’ brief was filled with factual assertions, the record evidence they actually introduced was not enough to meet their burden.

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

 

New opinion — a NEPA affirmance

Maiden Creek Assocs v. U.S. Dept. of Transp. — environmental — affirmance — Barry

The Third Circuit today affirmed an order dismissing a complaint brought under the National Environmental Policy Act and denying the plaintiffs’ motion to amend. The NEPA claim challenged some highway work that a developer and a township board believed would impede a planned shopping center.

Joining Barry were Fisher and Rendell. Arguing counsel were Marc Kaplin for the developer, Christopher Garrell for the township board, James Maysonett for the government, and Kenda Jo Gardner for the state department of transportation.

Now it’s Hardiman’s turn in the Trump-media glare [updated]

For several months, Judge Barry has been the Third Circuit judge in the national media spotlight in connection with the Trump presidential campaign. But that all changed yesterday when Trump included Hardiman on his list of 11 potential Supreme Court nominees.

My post yesterday collected conservative praise of Trump’s list and the couple early stories featuring Hardiman. UPDATE: Here’s another, from David Lat on Abovethelaw.

Since then more Hardiman coverage has emerged. A Wall Street Journal analysis of the 11 said this about Hardiman:

Judge Thomas Hardiman, 50, joined the Third U.S. Circuit Court of Appeals in 2007, after serving as a district court judge in Pennsylvania for four years. Both appointments came from George W. Bush. A graduate of University of Notre Dame and Georgetown University Law Center, he worked in private practice at Skadden, Arps, Slate, Meagher & Flom LLP and other law firms before becoming a judge. The Trump campaign says he’s the first in his family to attend college. In a decision he authored, which was later affirmed by the U.S. Supreme Court, the appeals court held that a jail’s policy of strip-searching all detainees, even those with minor alleged offenses, wasn’t a violation of the Fourth Amendment.

A Washington Post analysis of the 11 by Amber Phillips included this:

Hardiman is a judge on the U.S. Court of Appeals for the 3rd Circuit and also a George W. Bush appointee. He’s a Georgetown Law School graduate and has written two majority opinions that were reviewed by the Supreme Court: one supporting the strengthening of mandatory minimum sentences for criminals, and the others supporting a Pennsylvania jail’s policy of strip-searching the people it arrests, arguing that it does not violate a person’s Fourth Amendment right of unreasonable searches and seizures.

Arch-liberal Mark Joseph Stern of Slate had this:

Then there’s Thomas Hardiman. Another Bush appointee, Hardiman is a law and order guy. He wrote an opinion affirming the constitutionality of a jail’s policy to strip search every single arrestee—even those brought in for minor traffic offenses. (Regrettably, the high court narrowly upheld his decision.) In a different case, Hardiman wrote that there is no clearly established First Amendment right to videotape law enforcement officers in public—an extremely dubious if not outright incorrect proposition. Hardiman reads the Second Amendment quite broadly, arguing that states cannot restrict residents’ ability to carry handguns in public. And while he interprets the First Amendment broadly in the realm of campaign contributions, he takes a very narrow view of students’ free speech rights. Sound familiar?

Ron Brynaert of Dailycaller had this critical look at one of the same cases mentioned by Stern, Hardiman’s opinion in a 2010 case affirming summary judgment in favor of a police officer and ruling that there was no clearly established right to videotape officers during a traffic stop. (Neither article mentions the important fact that Hardiman’s opinion was joined in full by McKee and Pollak by designation.)

UPDATE: another liberal take, by Ian Millhiser on Thinkprogress, is here. He calls Hardiman “one of the more enigmatic names on Trump’s list” and says “he appears to have had more luck steering away from controversial cases,” resulting in “a thinner ideological profile than some of the other names on Trump’s list.”

Finally, Paul Gough had this brief profile of Hardiman in the Pittsburgh Business Times.

UPDATE: here’s a thoroughly reported critical profile of Hardiman by Rich Lord in Pittsburgh CityPaper from way back in 2003, when Hardiman’s WDPA nomination was pending.

And Laura Olson has this profile of Hardiman in the Allentown Morning Call, citing the 2003 profile and noting his bipartisan political ties.

 

Trump names Hardiman as one of his possible Supreme Court picks [updated]

Presumptive Republican presidential nominee Donald Trump today released a list of 11 potential Supreme Court justice nominees that he would vet to fill Justice Scalia’s seat, the Associated Press reports.

Among those on the list: Third Circuit Judge Thomas Hardiman.

[Hat tip to How Appealing.]

 

UPDATE: Early conservative commentary has been enthusiastic about Trump’s list but has little to say about Hardiman specifically:

Ilya Shapiro at Cato

John Yoo at National Review

Jim Geraghty at National Review

Paul Mirengoff at Powerline

 

UPDATE 2: Here is some good early Hardiman-focused coverage:

Brian Bowling at TribLive

Gina Passarella at Legal Intelligencer

 

Bridgegate appeal panel announced

The Third Circuit has just updated its argument calendar to indicate that the panel for the Bridgegate appeal, North Jersey Media Group v. United States, will be Ambro, Jordan, and Scirica. (Sorry, media, no Barry.) The listing is here.The argument will be at 3 p.m. on June 6 in the Maris courtroom, and it will be the only argument the panel hears.

As I noted earlier today, the panel reportedly will decide whether the argument will be open to the public based on briefing on that question due today.

You still don’t have a constitutional right to own an M-16 machine gun

United States v. One Palmetto State Armory — Civil / Second Amendment — affirmance — Thompson

The Second Amendment does not give people the right to own machine guns, the Third Circuit held today. And would-be machine gun owners can’t dodge the federal law against machine-gun possession by just creating a trust to own it instead.

Joining Thompson D-NJ were Ambro and Krause. Arguing counsel were Stephen Stamboulieh for the would-be machine gun owner and Patrick Nemeroff for the government.

 

Bridgegate appeal update

Tim Darragh has an informative update on the Bridgegate appeal this morning at NJ.com. Darragh reports that the Third Circuit ordered the parties to file briefs today on whether the June 6 oral argument should be open to the public, and next week on whether the as-yet-unnamed appellant gets to stay anonymous. He also reports that the media parties last night filed a motion to reconsider challenging Judge Ambro’s stay blocking release of the names.

Third Circuit panel will hear argument on Bridgegate disclosure; media fixates on Barry’s role

The long-simmering Bridgegate scandal will make its way to the Third Circuit next month, when a panel of the court hears argument on whether to release the names of the unindicted co-conspirators, per an order reportedly signed today by Judge Ambro.

Much of the early media coverage on the order focuses on whether Judge Barry would recuse herself from the panel, given that Governor Christie is both a central figure in the Bridgegate scandal and a top supporter of Barry’s brother, presumptive Republican Presidential nominee Donald Trump. Here are links to stories by Gawker, Twitchy, and Politico.

UPDATE: and here’s another, by Philip Bump for the Washington Post, that begins, “A clear disclaimer at the top: There is a chance — an outside, unlikely chance — that this happens.”

Of course, the odds of Barry (or any other individual judge) being even assigned to any particular three-judge panel are fairly low, and if she chose to recuse she likely would be replaced without the public ever knowing.

But even if there ends up not being any Barry angle, I expect this to remain a high-profile case for the court.

Two new opinions

Fair Housing Rights Ctr v. Post Goldtex — housing –affirmance — Nygaard

Today, the Third Circuit answered this “somewhat abstruse” housing-law question: “do the design and accessibility requirements of the Fair Housing Act (FHA), 42 U.S.C. § 3604(f)(3)(C), apply to a commercial building that was originally constructed before the requirements’ effective date, but converted into residential units after that date?” HUD had answered the question in the negative, and, applying Chevron deference, the Third Circuit today agreed.

Joining Nygaard were Fuentes and Smith. The case was decided without argument.

 

MRL Development v. Whitecap Investment  — civil — affirmance — Fisher

The plaintiffs bought treated lumber for the deck of a vacation home, but the lumber didn’t last, and the plaintiffs sued. The district court ruled that the suit was time-barred and granted summary judgment. Today the Third Circuit affirmed, applying the gist-of-the-action doctrine (which bars tort claims that merely replicated contractual claims).

Joining Fisher were Krause and Roth. Arguing counsel were Thomas Wilkinson of Cozen O’Connor for the appellants and Alex Moskowitz, Andrew Kelly, and Robert Carlson for the appellees.

New opinion — Third Circuit reverses on civil-procedure error

In re: Asbestos Prods. Liability — civil — reversal — Hardiman

A railroad worker was exposed to asbestos used for insulation on railcars. He contracted asbestosis and mesothelioma and sued the railcar manufacturers under state law. The defendants argued that the state-law claims were pre-empted, and the district court agreed and dismissed the suit. Today the Third Circuit reversed, holding that the district erred procedurally by dismissing based on facts that were not pled in the complaint. The court acknowledged that the district court could treat the motion as one for summary judgment instead of dismissal, but held that summary judgment was not appropriate here either because the defendants did not provide evidentiary support for the district court’s factual finding, or, at a minimum, there was a factual dispute and the court had to draw inferences in the non-movant’s favor.

Joining Hardiman were Ambro and Nygaard. Arguing counsel were John Roven of Houston for the appellant (joined on the brief by Howard Bashman ) and Holli Pryer-Baze of Akin Gump and Joseph Richotte for the appellees.

New opinion — a bankruptcy affirmance

In re: Net Pay Solutions — bankruptcy — affirmance — Hardiman

The Third Circuit today upheld a district court’s rulings in a bankruptcy case denying the debtor’s motions to avoid five preferential transfers. The debtor made five tax payments for its clients the day before it went out of business, and it sought to recover the funds in bankruptcy, but the court held that four were minimal as to each creditor and the fifth did not involve the debtor’s property because it was only held in trust.

Joining Hardiman was Smith; Sloviter had been on the panel before she assumed inactive status. Arguing counsel were Markian Slobodian as debtor’s trustee and Ivan Dale for the government.

New opinion — ‘interesting tax-accounting appeal’ is not an oxymoron, apparently

Giant Eagle v. Commissioner — tax — reversal — Roth

A supermarket offered its customers a discount on gas purchases: for every $50 spent on groceries, they got 10 cents off a future gas purchase. Naturally, at the end of the tax year, there were customers who had earned a gas discount but had not yet redeemed it. In its taxes, the supermarket claimed those earned-but-not-yet-redeemed discounts as deductions, reducing the total amount outstanding by past redemption rates. The IRS and the tax court disallowed the deductions, but today a divided Third Circuit reversed, ruling in the supermarket’s favor.

Joining Roth was Fisher; Hardiman dissented. Both opinions are excellent. Arguing counsel were Robert Barnes of Marcus & Shapira for the supermarket and Julie Avetta (who had quite a wedding announcement) for the government.

New opinions — two civil affirmances

Eisai, Inc. v. Sanofi Aventis — civil — affirmance — Roth

The Third Circuit today affirmed summary judgment in favor of the defendant in an antitrust case. Pharma giant Sanofi used various marketing strategies to sell its anticoagulant drug Lovenox. The court ruled that these strategies may have harmed Sanofi’s competitors, but the competitors did not show they cause broad harm to the competitive nature of the anticoagulant market.

Joining Roth were Ambro and Fuentes. Arguing counsel were Jay Fastow of Ballard Spahr for the appellant and George Cary of Cleary Gottlieb for the appellees.

 

Davis v. City of Philadelphia — civil / tax — affirmance — Hardiman

The Third Circuit today held that federal protections limiting penalties for late property-tax payments for active-duty servicemembers do not apply to taxes owed by a corporation solely owned by the servicemember. The city was represented on appeal by private counsel, apparently not an appellate specialist, and in a footnote the court rejected the city’s “odd suggestion” about the applicable standard of review. The court also rejected the parties’ view that the key issue in the case was standing.

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

New opinion — a Fourth Amendment reversal

U.S. v. Vasquez-Algarin — criminal / Fourth Am. — reversal — Krause

The Third Circuit today decided an interesting and important search and seizure case today, holding that officers entering a dwelling to arrest someone must at least have probable cause to believe the person is there. The opinion ably explains matters:

Law enforcement officers need both an arrest warrant and a search warrant to apprehend a suspect at what they know to be a third party’s home. If the suspect resides at the address in question, however, officers need only an arrest warrant and a “reason to believe” that the individual is present at the time of their entry. This case sits between these two rules and calls on us to decide their critical point of inflection: how certain must officers be that a suspect resides at and is present at a particular address before forcing entry into a private dwelling?

* * *

We conclude that to satisfy the reasonable belief standard law enforcement required, but lacked, probable cause. The officers’ entry was therefore unconstitutional and, because the good-faith exception to the exclusionary rule is inapplicable here, the evidence seized from Vasquez-Algarin’s apartment should have been suppressed.

The court joined four other circuits in interpreting reasonable belief as at least functionally equal to probable cause, splitting sharply with the D.C. Circuit and less sharply with two others.

Joining Krause were Fuentes and Roth. Arguing counsel were Frederick Ulrich of the MDPA Federal Public Defender for the defendant and Daryl Bloom for the government.

New opinion — persistent police get valid consent to enter

United States v. Murray — criminal — affirmance — Barry

When police knocked on the door of a motel room, a woman inside said she was busy and to go away. A different officer knocked, and the woman again said she was busy. So the officer said he was a police officer and “asked her to open the door,” and he knocked on the window and showed his badge through the window. The woman then opened the door and let the police into the room, where they found evidence used to incriminate the defendant. The district court held that the officers’ entry into the motel room was lawful due to the woman’s voluntary, uncoerced consent. Today, noting the woman’s later testimony that she had been glad the police came and wanted to open the door, the Third Circuit affirmed.

Joining Barry were Fisher and Rendell. The case was decided without oral argument.

Third Circuit reversed in free-speech case

This morning the Supreme Court issued Heffernan v. City of Paterson, reversing by a 6-2 vote the Third Circuit, holding:

When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

Here, police officer Heffernan was fired after he was seen getting a political candidate’s yard sign. In reality he picked up the sign for his mother, but he was fired based on the mistaken view that he was supporting that candidate himself. In a decision I described at the time as “wacky” and a head-scratcher, the Third Circuit had affirmed summary judgment against Heffernan, without oral argument, on the theory that he was not actually exercising his First Amendment rights.

The Supreme Court remanded for further proceedings on whether the employers acted pursuant to a neutral policy.

Third Circuit to start using eVoucher in CJA cases

The Third Circuit website today announced:

The Court of Appeals will be going live on eVoucher on June 6, 2016.  All CJA attorneys are directed to review the attached notice regarding the deadline for submission of outstanding vouchers and the implementation process.

The notice is here. Some notable points:

In order to avoid delays in payment, all CJA appointed attorneys with outstanding
vouchers in appeals that are final or with vouchers eligible for interim payment must be
received in the Clerk’s Office in paper format on or before Wednesday, May 18, 2016.

* * *

Once the Court transitions to eVoucher on June 6, 2016, the Court will no longer
be able to process any vouchers submitted in paper format. All paper vouchers submitted
after May 18, 2016 will be returned to counsel without processing. Counsel will then
have to wait to resubmit the voucher until the Clerk’s Office can create the appointment
in eVoucher. Vouchers cannot be submitted electronically until after the Court goes live
on June 6th.

* * *

Any questions regarding this transition to eVoucher should be directed to
evoucher_helpdesk@ca3.uscourts.gov or 215-299-4966.

The notice unfortunately doesn’t mention this, but I would think that the court’s inability to accept vouchers between May 18 and June 6 will mean that it will excuse compliance with its normal rule that CJA vouchers must be submitted within 45 days of the end of the case for cases where the deadline falls in the three-week no-submission period.

I just submitted my first eVoucher bill last month, in a non-Third Circuit case, and I’m still reserving judgment about the new system. But, improvement or not, it’s coming soon.

New opinion — Third Circuit upholds NLRB rulings against challenge based on NLRB recess appointments

Advanced Disposal Svcs East v. NLRB — agency/labor — affirmance — Smith

The Supreme Court held in Noel Canning that the National Labor Relations Board lacked a quorum in 2012 and 2013 because the recess appointments of three of its members were invalid. The case decided today by the Third Circuit involved NLRB actions that were initially invalid but later were ratified by the then-properly-constituted board. The court held that the ratification sufficed to support the board’s actions, and on the merits held that the board’s ruling was supported by substantial evidence. On a preliminary issue — whether the employer forfeit its challenge to NLRB authority by failing to raise the issue before the board — the Third Circuit expressly deepened a circuit split, joining the D.C. Circuit against the Eighth Circuit. I doubt we’ve heard the last of this case.

Joining Smith was Hardiman; Sloviter also was on the panel when it heard argument but assumed inactive status before the opinion issued. Arguing counsel were Daniel Barker for the employer and Kellie Isbell for the NLRB.

 

New opinions — a rare criminal reversal and a bankruptcy reversal

US v. Lopez — criminal — reversal — Vanaskie

Criminal defendants don’t win too many Third Circuit appeals, especially by published opinion and most especially under plain-error review. But it happened today. The court vacated Victor Lopez’s conviction for being a felon in possession of a firearm, holding that the prosecution violated Doyle v. Ohio by impeaching Lopez with his post-Miranda silence and ordering a new trial despite trial counsel’s failure to object to the error. The court ruled that the error affected the outcome because the error impacted Lopez’s credibility and the case hinged on credibility.

In a footnote, the court lamented that the Doyle error was “particularly egregious” because such errors “unfortunately resurface[] too often, threatening to undermine the integrity of proceedings in our courts.” After reiterating that it remained troubled by the recurring violations, the court “commend[ed] Assistant United States Attorney Steven G. Sanders for his forthright acknowledgment of the Doyle error during oral argument,” noting, “He was a model of professionalism in apologizing for the error at trial and vowing to take steps to avoid having this type of error recur.” Audio of the oral argument is here.

For criminal defense counsel, three prejudice points bear noting:

  1. The whole record matters. In finding that the error affected the outcome, the court didn’t just look at the testimony, it also looked at how the prosecutor argued that testimony at closing and at the questions jurors asked during deliberations.
  2. The fact that the credibility contest was between a defendant and police officers did not prevent the court from finding a reasonable probability that the error affected the outcome. Nor did the fact that the dispute was over whether the cops framed the defendant. In other words, the court recognized a reasonable probability that, without the improper impeachment, the jury would have believed that the defendant was telling the truth that the cops framed him, and that two police officers were lying when they said they found the gun on him.
  3. The court rejected the government’s argument that the Doyle error did not make a difference because the jury also had valid reasons to disbelieve the defendant (he had prior felony convictions and gave a false name when arrested).

Joining Vanaskie were McKee and Jordan. Arguing counsel were Steven Sanders for the government and my former colleague Maria Pulzetti of the EDPA Federal Community Defender for Lopez.

 

In re: World Imports — bankruptcy — reversal — Jordan

The Third Circuit today reversed a district court ruling in a bankruptcy case, holding that contractual modifications to a creditor’s maritime liens were enforceable on goods in the creditor’s possession.

Joining Jordan were McKee and Vanaskie. Arguing counsel were Brendan Collins for the creditor and David Braverman for the debtor.

“Free Pa’s federal judicial nominees from Senate limbo”

The title of the post was the headline of an April 15 staff editorial on PennLive.com, criticizing Senate Republicans’ “absolute fetish of blocking President Barack Obama’s judicial appointments – an obstructionist posture that has burdened benches across the nation, particularly in Pennsylvania.” One of the obstructed nominations mentioned, of course, is that of Rebecca Ross Haywood to the Third Circuit.

From the editorial:

Reporter Rob Hotakainen writes that the Senate has approved just 17 judicial nominations since Republicans took control in 2015. That’s fewer than half the 40-plus circuit and district court nominees approved by the Democratic-controlled Senate during a similar period during George W. Bush’s presidency. In fact, last year saw the fewest judicial confirmations since 1960.

So much for Republican majority demonstrating it can govern.

The result is an overburdened federal judiciary for which there is little hope of assistance any time soon. That’s bad news for Pennsylvania, which has four judicial appointees awaiting votes – tied with Texas for the most in the nation.

Otherwise, Haywood’s nomination has been getting disappointingly little media attention recently, as the Garland nomination continues to use up all the judicial-nomination-coverage oxygen.

New opinion — Third Circuit decides a major preemption case

Sikkelee v. Precision Airmotive — civil — reversal — Krause

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

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

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

 

New opinion — Third Circuit upholds NFL concussion-suit settlement

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

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

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

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

New opinion — Court affirms denial of habeas corpus relief

Dellavecchia v. Secretary PA DOC — habeas corpus — affirmance — Greenberg

After being arrested for murdering a man, James Dellavecchia smashed his head into the bars of his cell and was taken to the hospital. Dellavecchia was arraigned in his hospital bed and, while the arraigning police officer was there and without counsel, Dellavecchia made various admissions that the prosecution later used against him at trial. The state court found that admission of the defendant’s statements did not violate the Sixth Amendment because the statements were spontaneous and unsolicited. The district court denied Dellavecchia’s habeas petition, and today the Third Circuit affirmed, holding that the state-court ruling was not an unreasonable application of Supreme Court holdings and that, even if there were error, it would be harmless because the prosecution’s case was overwhelming.

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

 

New opinion — two-judge panel affirms in civil appeal

Havens v. Mobex Network Svcs — civil / telecommunications — affirmance — Roth

The Third Circuit today affirmed district court rulings for the defense in a dispute over maritime telecommunications licenses. The court upheld dismissal of the plaintiffs’ claims under the Federal Communications Act and entry of judgment on their Sherman Act claim.

Joining Roth was Fuentes; Sloviter had been on the panel and heard oral argument but assumed inactive status before the opinion issued and so the opinion was filed by panel quorum. Arguing counsel were Stephen Hudspeth for the appellants and Robert Mauriello Jr. for the appellees.

Sheldon Adelson lost an appeal today in the Third Circuit [updated]

Casino magnate and major conservative political donor Sheldon Adelson lost a Third Circuit appeal today in an unpublished opinion. The opinion is here. Adelson (who, ironically, owns the Las Vegas Review-Journal) brought a defamation suit against a reporter for writing an article referring to him as “foul-mouthed.”  Huffington Post coverage of the suit here. The reporter’s defense, the opinion notes drily, is that the statement is “true in substance and fact.” The reporter sought discovery from a third-party of documents involving foul language by Adelson, the district court granted the discovery, and today the Third Circuit affirmed.

Gee whiz.

(Only the nerdiest among you will share my interest in noting that the opinion lists the attorneys in the caption, which is unusual for Third Circuit non-precedential opinions. UPDATE: a diligent reader reminded me that the court lists the attorneys in non-published opinions whenever oral argument was held.)

New opinion — Third Circuit finds serious misconduct by prosecution, but affirms due to overwhelming evidence

Gov’t of the V.I. v. Mills — criminal — affirmance — Krause

The Third Circuit today issued a major opinion on prosecutorial misconduct, holding that the prosecution committed severe and pervasive misconduct but that the defendant was not entitled to a new trial because the evidence against him was overwhelming, his defense was implausible, and the court gave effective curative instructions. The Third Circuit found three types of misconduct: urging jurors to convict Mills to protect themselves, urging jurors to convict based on bad conduct not relevant to the charged crimes, and displaying a photo of the victim’s corpse during closing argument to evoke sympathy.

Joining Krause were Fisher and Roth. (Notably, both Krause and Fisher were prosecutors before joining the court.) Arguing counsel were Su-Layne Walker for the government and Joseph DiRuzzo III for the defendant.

New opinion — Third Circuit recognizes Supreme Court overruling on settlement-offer mootness

Weitzner v. Sanofi Pasteur — civil / class action — affirmance — Scirica

Today the Third Circuit held that an unaccepted offer of judgment, filed prior to a plaintiff’s class certification motion, does not moot a plaintiff’s entire action. The court applied the recent Supreme Court ruling in Campbell-Ewald Co. v. Gomez, which the court recognized overruled its prior contrary holding in Weiss that an offer of complete relief generally moots the plaintiff’s claim. The court stated, “Beyond this, we decline to elaborate on the implications of Campbell-Ewald on our other holdings in Weiss.”

Joining Scirica were Shwartz and Roth. Arguing counsel were Carl Greco for the defendants and Todd Bank for the class plaintiffs.

Judge Sloviter, a “trailblazer” and “true legal giant,” assumes inactive status

Iconic Third Circuit Senior Judge Delores K. Sloviter assumed inactive status yesterday. Her decision was announced in a press release issued by Chief Judge McKee (link here from How Appealing). According to Chief Judge McKee’s statement, she “made the difficult decision due to a serious medical condition with her eyes.”

Chief Judge McKee’s statement contains a warm tribute to Judge Sloviter, describing her as “a trailblazer” and noting that she was the first woman to be a Third Circuit judge and the only woman to be the court’s Chief Judge. The statement concludes:

Judge Sloviter is a true legal giant. Her contribution to the Court and the legal profession cannot be diminished. I speak for the entire Court family in wishing Judge Sloviter good health, and in thanking her for all that she has done for the Third Circuit. We expect and hope that she will continue to play an active role in the life of the Court through participation on court committees and other duties.

Additional coverage by P.J. D’Annunzio in the Legal Intelligencer here, with admiring quotes from Shira Goodman, Chip Becker, and Bill Hangley. And Bruce Greenberg has this post on his New Jersey Appellate Law blog.

Chief Judge McKee’s statement does not mention what will happen to Judge Sloviter’s current clerks. (One of them is Tyson Herrold, per LinkedIn.) Here’s hoping they land on their feet.

Judge Sloviter’s final published opinion was last November, here. Her final decided case was yesterday, here. UPDATE: I spoke too soon. The court issued a per curiam opinion today (the day after she assumed inactive status) in which she is listed on the panel.

The Third Circuit will not be the same without her.

 

New opinion — partial reversal in an arbitration appeal

Hamilton Park v. 1199 SEIU — civil / arbitration — partial reversal — Ambro

The Third Circuit today affirmed in part and reversed in part in an appeal arising from an arbitration. The opening of the opinion aptly lays out the basics:

Hamilton Park Health Care Center filed a petition to vacate an arbitration award in a dispute with the 1199 SEIU United Healthcare Workers East union. The District Court denied the petition and confirmed the award. On appeal, Hamilton Park asserts that the Court erred by approving a multi-year arbitration award when the parties’ collective bargaining agreement (“CBA”) only contemplated a single-year award. Because the parties consented at arbitration to a multi-year award, we affirm this portion of the Court’s order.

Hamilton Park also argues that, even if a multi-year award is permissible, the Court should have severed a provision authorizing a new round of arbitration at a later date. We agree; thus we reverse and remand as to this portion of the order.

The conclusion clarifies the basis for reversal:

Our deference to an arbitrator’s award does not include the rubber stamping of a self-perpetuating arbitration provision that the parties did not agree to include. We therefore reverse the portion of the District Court’s order approving the inclusion of a new arbitration provision for disputes arising for the year starting June 30, 2015. We remand the case with instructions for the Court to void only the portion of the award providing for that arbitration. We affirm the Court’s order in all other respects.

(Citation and footnote omitted).

Joining Ambro were Jordan and Scirica. The case was decided without oral argument.

Today’s opinion was the court’s first published opinion since March 11.

Third Circuit hiring a clerk’s office court attorney

The Third Circuit posted a new job announcement this morning for a permanent court attorney position in the clerk’s office. I re-post job announcements like this one here partly as a service to the court, but mostly I do it because they give insight into how the court does its work.

The position reports to the chief deputy clerk and “provides legal guidance and direction for the procedural management of the court’s caseload.” Here are court attorney’s duties:

• Drafts Clerk’s procedural orders which facilitate case management.
• Conducts the initial screening of cases.
• Conducts legal research.
• Provides legal memoranda to the court in emergency matters.

The link to apply online is here. The closing date is April 22, so tarry not, my fellow appellate-procedure devotees!

A GVR and a capital-case cert denial for Third Circuit today

This morning’s U.S. Supreme Court order list included two Third Circuit cases of note.

First, the Court granted certiorari, vacated the judgment, and remanded in light of Johnson v. U.S. in Moon v. U.S., a criminal appeal the Third Circuit decided in a 2015 non-precedential opinion. Moon was represented by Philadelphia assistant federal defender Brett Sweitzer.

Second, the Court denied certiorari in Saranchak v. Wetzel, a capital habeas corpus appeal. The Third Circuit granted penalty-phase relief in 2015 while affirming the conviction, and Saranchak had sought cert presumably on the guilt-phase ruling.

The Court granted cert in one case to review a First Circuit case involving acquittals and Double Jeopardy (QP #1 on Scotusblog).

“Friends, neighbors hail Haywood nomination”

Today’s Uniontown (Pa.) Herald Standard has this adoring profile of Third Circuit nominee Rebecca Haywood by Pat Cloonan. The main sources are childhood friends, neighbors, and teachers, including a classmate who also became a lawyer:

“I think she has the intellect and temperament to be an outstanding appellate judge,” said Dan Sinclair, a partner in the Ecker[t] Seamans law firm who graduated with Haywood in 1986. “We had a lot of the same classes, and some activities. I hope the United States Senate considers her and confirms her quickly.”

* * *

Sinclair recalled Haywood being valedictorian of the Class of 1986.

“I can’t think of very many people I have met in this profession who are more qualified or more suited to be a federal appellate judge than she is,” Sinclair said. “Her work experience and her background make her very well suited for that.”

Neat story.

A glimmer of hope for litigant asking Supreme Court to review a Third Circuit ruling I called questionable

Last week the Supreme Court asked the Solicitor General to file a response to a certiorari petition challenging a controversial 2015 Third Circuit decision. Third Circuit, I love you, but I’m rooting for reversal.

Last August, the Third Circuit rejected Cosmo Fazio’s appeal challenging his guilty plea. I sounded off here, to wit:

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.

It bugged me so much that I went hunting online, and what I found bugged me some more:

Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.

Fazio’s motion for en banc rehearing (joined by an amicus) was denied, and he filed a Supreme Court petition for certiorari last month. Counsel of record remains Mark Goldstein. The government waived response, but last