Author Archives: Guest

New Opinion: University of Immigration Honeypot [guest post]

This is a guest post by David Goodwin.

Fang v. USCIS—immigration—vacating—McKee

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

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

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

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

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

Three of a Perfect Pair [guest post]

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

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

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

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

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

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

Joining the Chief were Judge Chagares and Judge Greenaway.

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


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

This is a guest post by David Goodwin.

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

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

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

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

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

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

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


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

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Four new opinions, including a debut [guest post]

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

This is a guest post by David Goodwin.

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

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

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

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

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

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

Finally, the Court defers decision on several open questions:

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

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

Presiding judge musing [guest post]

This is a guest post by David Goodwin.

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

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

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

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

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

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


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

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

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

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

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

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

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

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Midsummer district court confirmations [guest post]

This is a guest post by David Goodwin.

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

We must have new judges!

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

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

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

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

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

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

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

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

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

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

This is a guest post by David Goodwin.

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

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

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

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

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

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

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

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

This is a guest post by David Goodwin.

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

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

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

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

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

Joining Judge Ambro were Greenaway and Scirica.

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

Introductions and a quick recap of Crystallex [guest post]

This is a guest post by David Goodwin.

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

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

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

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

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

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