Author Archives: Matthew Stiegler

New opinion — Third Circuit vacates insider-trading sentence

US v. Metro — criminal — reversal — Jordan

The Third Circuit today vacated a criminal sentence for insider trading due to insufficient factual findings in support of the district court’s decision to attribute others’ insider-trading gains to the defendant for sentencing purposes. The gist: ” When the scope of a defendant’s involvement in a conspiracy is contested, a district court cannot rely solely on a defendant’s guilty plea to the conspiracy charge, without additional fact-finding, to support attributing co-conspirators’ gains to a defendant.”

Joining Jordan were Hardiman and Scirica. Arguing counsel were Lawrence Lustberg of Gibbons for the defendant and Glenn Moramarco for the government.

New opinion — an interesting debt-collection-suit win

Tatis v. Allied Interestate — consumer / FDCPA — reversal — Hardiman

The Third Circuit today held that sending a settlement letter for a time-barred debt can be actionable under the Fair Debt Collection Practices Act even if the letter does not threaten legal action.

It’s a fascinating case for a few reasons:

  • the counsel match-up was David vs. Goliath–a junior consumer lawyer against a past president of the American Academy of Appellate Lawyers–and the junior lawyer won;
  • the panel was composed of the Third Circuit’s three most conservative active judges, but it ruled in favor of the consumer; and
  • the opinion was authored by Judge Hardiman, reportedly a Supreme court short-lister, and it pointedly disagreed with a dissenting opinion by another Supreme Court short-lister, Sixth Circuit Judge Kethledge.

Joining Hardiman were Chagares and Jordan. Arguing counsel were Ari Marcus of Yitzchak & Zelman for the consumer and James Martin of Reed Smith for the debt collector.

New opinion — appellate counsel’s ineffectiveness can’t excuse default

Greene v. Superintendent — habeas — affirmance — Vanaskie

The Third Circuit today held that a recent Supreme Court opinion foreclosed a habeas corpus petitioner’s argument that Martinez v. Ryan should be expanded to allow review of defaulted or untimely claims based on ineffective assistance of direct appeal (vs. trial) counsel.

Joining Vanaskie were Rendell and Fisher. Arguing counsel were Michael Wiseman for the petitioner and Catherine Kiefer for the state.

There’s a Super Bowl parade on Thursday, but Third Circuit oral arguments will go on

I’m told that the Third Circuit reached out to counsel about the possibility of rescheduling this Thursday’s oral arguments due to the just-scheduled parade celebrating the Philadelphia Eagles’ Super Bowl victory, but in the end the court decided to proceed with Thursday’s arguments as scheduled.

So, if you find yourself wondering whether that woman at the parade climbing the light pole is Judge Rendell, the answer is almost certainly “no.”


Two new opinions, both authored by district judges

In re: Processed Egg Prods. Antitrust Litig. — antitrust — reversal — Stark D. Del. by designation

The Third Circuit today reversed a district court’s grant of summary judgement in favor of the defendant in an antitrust price-fixing case. The court rejected the district court’s conclusion that the end purchasers of the product (eggs) lacked standing to challenge to supplier’s alleged supply collusion.

The allegations could make a cynic of you:

Egg producers participating in the certification program were required to increase their hens’ cage sizes and refrain from replacing hens that died with another laying hen (a practice known as “backfilling”). It is alleged that the animal welfare rationale offered for these practices is merely a pretext for the true goal of reducing egg supply to drive up egg prices.

The court defined the issue as one of first impression in the circuit:

whether a direct purchaser of a product that includes a pricefixed input has antitrust standing to pursue a claim against the party that sold the product to the purchaser, where the seller is a participant in the price-fixing conspiracy, but where the product also includes some amount of price-fixed input supplied by a third-party non-conspirator.

Joining Stark were Smith and Fuentes. Arguing counsel were Michael Brody of Jenner & Block for the purchasers and Carrie Mahan of Weil Gotshal for the suppliers.


Garza v. Citigroup — civil — affirmance — Conti WDPA

The lucid introduction:

Under Federal Rule of Civil Procedure 41(d), a district court may order a plaintiff who voluntarily dismisses an action and files a second action against the same defendant based upon a claim asserted in the first action to pay the “costs” incurred by the defendant in the first action. The issue presented (one of first impression in this Court) is whether a district court may award attorneys’ fees as “costs” under Rule 41(d). We conclude that attorneys’ fees may only be awarded as “costs” under Rule 41(d) when the substantive statute under which the lawsuit was filed defines costs to include attorneys’ fees. Because no such statute is involved here, and no other basis upon which attorneys’ fees may be awarded was properly raised with the United States District Court for the District of Delaware, we will affirm the decision of the District Court denying the request for attorneys’ fees.

In so ruling, the court joined a middle-ground position taken by the Fourth and Seventh Circuits, splitting with the Eighth Circuit on one side and the Sixth Circuit on the other.

The court also held that the appellant had waived an argument by failing to raise it below and first raising it in its reply brief. (Notable, given that the appellant was represented by a large firm.)

Joining Conti were Ambro and Krause. Arguing counsel were Bruce Birenboim of Paul Weiss for the appellant and Susan Burke of Maryland for the appellee.

New opinion — insurer’s rejection of proof of loss triggered statute of limitations

Migliaro v. Fidelity National — civil / insurance — affirmance — Rendell

Introductions this clear make my job easy:

The issue in this case is whether the rejection of a policyholder’s proof of loss constituted a “written denial of all or part of the claim,” thereby triggering the one-year statute of limitations that is set forth in every Standard Flood Insurance Policy (“SFIP”). After receiving a payment from Fidelity National Indemnity Insurance Company, based on an adjuster’s assessment of the damage to his property caused by Hurricane Sandy, Anthony Migliaro submitted a sworn proof of loss seeking additional compensation. Fidelity sent Migliaro a letter rejecting his proof of loss, and he filed suit. The District Court found that the letter rejecting Migliaro’s proof of loss was a “written denial of all or part of the claim.” Since Migliaro filed his complaint almost two years after he received the letter, the District Court dismissed the suit as time-barred. We affirm the District Court’s order. Although the rejection of a proof of loss is not per se a denial of the claim in whole or in part, it does constitute a denial of the claim if, as here, the policyholder treats it as such by filing suit against the carrier.

Joining Rendell were Ambro and Krause. Arguing counsel were Steven Feinstein of Zenstein Ballard for the insured and Francis Manning of Stradley Ronon for the insurer.

New opinion — employee fired for objecting to West Chester University’s alleged budgeting shenanigans has no First Amendment claim

Bradley v. West Chester Univ. — civil — affirmance — Brann MDPA by designation

West Chester University’s budgeting director allegedly was asked to change her report to make it show a deficit instead of a surplus so as not to put the university’s state appropriation at risk. She told an administrative committee that making that change would be unethical and possibly illegal. Two years later, she allegedly had another, similar disagreement. Soon after she was told she was not a cultural fit and her contract would not be renewed.  She sued her supervisor, the university, and the 14-university state higher-education system, alleging First Amendment retaliation and other claims. The district court ruled that her claims against the supervisor were barred by qualified immunity and her claims against the university were barred by Eleventh Amendment immunity.

Today, the Third Circuit affirmed. Without reaching qualified immunity, it held that the budget director’s speech was not constitutionally protected in the first place because it was made pursuant to her official duties. This seems like a reasonable application of controlling law, but still it is startling that an employee who ran right to the media would be on far safer ground than one who raised the same concern internally. The court also held that West Chester University and the university system were arms of the state entitled to Eleventh Amendment immunity.

Joining Brann were Smith and Hardiman. Arguing counsel were Daniel Kearney of Adams Kearney for the budget director and John Knorr III of the state AG’s office for the university and the university system.

Third Circuit: “If the shutdown is prolonged, the federal courts face serious disruptions.”

The Third Circuit posted an announcement today on its website about the government shutdown. It begins:

Operations for the United States Court of Appeals for the Third Circuit will not be affected, at least initially, by the government shutdown. The Court is open. Oral arguments will be heard as scheduled. All filing deadlines must be met.

Not “[a]ll” deadlines, actually: deadlines for federal government executive agencies in non-emergency civil cases are suspended. Most other deadlines (including all criminal-case deadlines) remain in force.

The announcement also says CJA counsel should continue submitting payment vouchers: “Payment of vouchers will continue, subject to continued available funding. Payment of vouchers may be delayed.”

It ends with the observation quoted in the title of this post, stating that it becomes necessary for the court to curtail services it will post an announcement on its website.



Two new opinions — false claims and immigration

US ex rel. Greenfield v. Medco Health Solutions — civil / false claims — affirmance — Ambro

The Third Circuit today affirmed a district court’s grant of summary judgment in favor of the alleged false claimant in a qui tam case. The case arose when, first, a health-care provider made donations to charities then, second, two of those charities alleged recommended the provider to patients. The panel rejected the provider’s argument that the relator had to prove that the charities’ recommendation actually caused members to use the provider, but also rejected the relator’s argument that it was enough just to show that the recommendations were made and the provider submitted claims around the same time. The panel held that the relator lost because he failed point to any specific patient who was referred by the charities and for whom the provider later sought government reimbursement.

Joining Ambro were Krause and Conti WDPA by designation. Arguing counsel were Regina Poserina of Begelman Orlow for the relator, Craig Singer of Williams & Connolly for the provider, and Katherine Allen for the government as amicus. (Making this the rare Third Circuit case where a majority of the panel and a majority of the arguing counsel were women.)


Williams v. AG — immigration — affirmance — Smith

The Third Circuit today held that a conviction under Georgia’s forgery statute, which covers using a false name when signing a document, is an aggravated felony supporting removal. The petitioner was a lawful permanent resident who immigrated to the US when he was 13 months old; his parents, grandparents, siblings, and children all are US citizens. The court split with the Ninth Circuit.

Joining Smith were Hardiman and Brann MDPA by designation. Arguing counsel were Christopher Mauro of Dechert for the petitioner and Christina Greer for the government.

A third of recent Third Circuit oral arguments were by women. Hurray?

Three recent studies have looked at whether women are getting their share of oral arguments in appellate courts:

  • On his Empirical SCOTUS blog, Adam Feldman examined Supreme Court arguments between 2012 and 2016 and found that less than 18% of the advocates were women–even though women’s win rates were higher.
  • Lawyer Raffi Melkonian studied Fifth Circuit oral arguments from 2016 and found that 17% were by women.
  • And on his New York Appeals blog, Rob Rosborough looked at 2016 arguments in the NY Court of Appeals and found that 37% were by women.

These studies inspired me to figure out how the Third Circuit measured up. The answer: out of 100 recent Third Circuit oral advocates, 34 were women.

Breaking down the numbers, here’s what I found:

  • In criminal or habeas cases, women were 44% (7 of 16) of the advocates.
  • In civil cases,* women were 32% (27 of 84).
  • There were 4 cases were both advocates were women, versus 18 where both were men. In the other 26, there was at least one of each. One of those 4 cases in which both arguing counsel were women was Hayes v. Harvey, the public-housing appeal in which the court recently granted rehearing en banc.

* Civil includes everything that’s not criminal or habeas. (And, while not the focus of this post, the fact that only 8 out of 48 arguments were crim/habeas cases is startling.)

My quick-and-dirty methodology: working backwards from the end of 2017, I  went through the appeals with published decisions after oral argument until I had 100 advocates. That ended up being published opinions issued between August 29 and December 31; it was 48 cases instead of 50 because in 4 of the cases 3 lawyers argued. Whenever I had any doubt about a lawyer’s gender, I checked online. Note that my numbers exclude oral arguments that resulted in unpublished opinions, which shows I’m lazy but I doubt affects the numbers.

I confess that I was surprised by these results. I suspected our gender imbalance among oral advocates would be just as bad as the Fifth Circuit’s and the Supreme Court’s. Not so. Yay Third Circuit.

Still, a third of our circuit’s oral arguments by women is nothing to crow about.

How to improve? Melkonian encouraged senior lawyers who assign cases, and clients who pick who argues, to give more women a shot. I agree, but I believe the rest of us have a role to play, too.

Bar groups decide who presents on CLE panels; judges decide who to appoint to committees; lawyers decide who to invite to judge their moots; reporters decide who to quote; nerdy bloggers decide whose work to recognize. Those decisions, and dozens like them, all affect career trajectories.

Something’s wrong when it seems like a triumph that men are getting only two-thirds of the oral arguments. It’s going to take a conscious, sustained effort by all of us for women appellate lawyers to get their due.

New opinion — bank robbery by intimidation is a crime of violence

United States v. Wilson — criminal sentencing — affirmance — Jordan

“If it were somehow in doubt before, we take the opportunity now to hold that bank robbery by intimidation is categorically a ‘crime of violence’ under the United States Sentencing Guidelines.” This, the opening sentence of today’s opinion, might be the most Judge-Jordan-ish opening sentence I’ve ever read, and I mean that as praise.

The opinion also held that the federal bank-robbery statute requires knowing conduct and that applying a sentencing enhancement was not plain error because it did not the affect the  sentence.

Joining Jordan were Hardiman and Scirica. Arguing counsel were Christy Martin of the EDPA federal defender for the defendant and Robert Zauzmer for the government.

Third Circuit schedules en banc arguments for February & May

The old news: just before the end of the year, the Third Circuit granted en banc rehearing in two cases, Hayes v. Harvey, an important public-housing appeal, and Vooys v. Bentley, a big deal for Virgin Islands litigants.

The new news: the court has now scheduled the Vooys oral argument for February 21 and the Hayes argument for May 16. In Vooys, the court also ordered supplemental briefing and granted amicus curiae the Virgin Islands Bar Association’s motion for leave to participate in the oral argument.

NextGen CM/ECF arrives at the Third Circuit, and I like it

Yesterday the Third Circuit went live with NextGen CM/ECF, the updated interface for online filing. As luck would have it, I had a brief and appendix due yesterday, so I got to take it for a spin on day one. I confess I was anxious about that, but I’m pleased to report that it worked flawlessly and was dramatically easier to use than the old interface.

I haven’t dug into the subject, but a couple advantages jumped out:

  • I was able to file my 57 MB, 174 page appendix volume without having to break it into smaller files
  • I was able to file my sealed appendix volume electronically
  • I was able to use my usual browser, Firefox, instead of Explorer
  • no more maddening hunting through menus trying to find the right document category, now you just type in the category and it comes up.

Goodbye, interface circa 2001!

I also was pleasantly surprised that the last step for setting up a NextGen account was painless. Everyone should have gotten an email that gave these steps:

1.  Make sure that you are logged out of PACER completely and close your browser.
2.  Open your browser and go to PACER’s Court List, then select Third Circuit – NextGen.
3.  Click the CM/ECF Document Filing System link.  At the login screen, log in with your upgraded PACER account credentials.
4.  Click Link my filer account to my PACER account.
5.  Enter your existing Third Circuit CM/ECF login and password to link your accounts.
6.  Review and confirm linking the accounts.

Hurrah to the Court for bringing NextGen to our circuit, I expect it will make life a little easier for all of us.

New opinion — divided panel upholds Eleventh Amendment dismissal

Karns v. Shanahan — civil — affirmance — Chagares

The Third Circuit today affirmed a district court ruling dismissing on Eleventh Amendment grounds a civil rights suit against NJ Transit. Although in a 1989 en banc ruling, Fitchik, the court held that NJ Transit is not an arm of the state entitled to Eleventh Amendment immunity, the court today observed that its analysis of such issues had since “fundamental[ly] shift[ed]” and its prior ruling was no longer binding.

Judge Roth dissented, beginning:

Were we writing on a blank slate, it would be within the prerogative of the Majority to decide this case as it does. But the slate is not blank. The precise question that we examine here, whether NJ Transit is an “arm of the state” entitled to Eleventh Amendment sovereign immunity,” we have already fully considered and resolved en banc in Fitchik v. N.J. Transit Rail Operations, Inc.1 Little has changed since we decided this question. Thus, stare decisis, principles of estoppel, and our own Internal Operating Procedures all require that we decline the invitation to overrule Fitchik. For this reason, I respectfully dissent from Part III of the majority opinion.

Joining Chagares was Restrepo. Arguing counsel were John Bloor of Drinker Biddle for the appellants and Jennifer McGruther of the NJ AG’s office for the appellees.

New opinion — Rooker-Feldman doesn’t bar bankruptcy trustee’s fraudulent transfer claims

In re: Philadelphia Entertainment & Development Partners — bankruptcy / civil — reversal — Greenberg

For all of you who’ve been dying for a Third Circuit Rooker-Feldman opinion–you know who you are–today’s your day. The Rooker-Feldman doctrine, today’s opinion explains, “deprives federal district and bankruptcy courts of jurisdiction over suits that are essentially appeals from state-court judgments.” (Cleaned up). Today’s opinion is about how Rooker-Feldman applies when a bankruptcy trustee alleges that a state-court ruling amounted to a voidable fraudulent transfer. The district court had ruled Rooker-Feldman barred review of the fraudulent-transfer claims, but today the Third Circuit reversed because review of the claims did not require review of the state-court judgment. The court rejected as unpersuasive a Seventh Circuit opinion relied on by the bankruptcy court.

By the way, the court posted this opinion on its website in the morning, instead of posting it around 12:34 p.m. as it always has. Fluke? Mistake? New practice? I’m curious.

Joining Greenberg were Chagares and Restrepo. The case was (surprisingly) decided without oral argument.

The appellate advocacy training in DE featuring two Third Circuit judges is next week, and now its free

This Wednesday, January 10, Third Circuit Judges Kent Jordan and Jane Roth will be among the presenters at a CLE program on effective Third Circuit advocacy.

And, to ring in 2018, the organizers are waiving the registration fee.

The program will be held at the federal courthouse in Wilmington, Delaware, on the third floor in the jury selection room. You will need a government-issued ID to enter the courthouse. The program will be from 3 to 5 pm with refreshments after. DE and PA CLE credit approval is pending. More details are in this earlier post. To register, email me at

Please share this post, and I hope to see you on Wednesday.

The Third Circuit is closed today, and today’s deadlines are pushed back to Monday

The Third Circuit posted the following order today on its website:

Due to inclement weather, the Chief Judge of the United States Court of Appeals for the Third Circuit has directed that the Court will be closed on Friday, January 5, 2018. Documents may be filed using the Court’s CM/ECF system or in the lock box in the lobby of the courthouse. Electronic and paper documents that are due on Friday, January 5, 2018, will be considered timely if filed/received on Monday, January 8, 2018.

For emergency cases or motions, please call 267-299-4903 and leave a detailed message regarding the nature of the emergency. The message must succinctly describe the facts and legal issues and the reason why immediate action is necessary, and must provide return contact information so that the attorney on duty will be able to return the phone call.

I had an opening brief due today, so this is big news indeed.


Two new opinions

Please excuse my cursory summaries today, I’m in the home stretch working on a big Third Circuit brief.

DiFiore v. CSL Behring — civil — affirmance — Fisher

The Third Circuit today affirmed a district court’s grant of summary judgement today in False Claims Act whistleblower case, holding that ” an employee’s protected activity must be the ‘but-for’ cause of adverse actions to support a claim of retaliation under the FCA.”

Joining Fisher were Vanaskie and Rendell. Arguing counsel were James Bell IV of Bell & Bell for the appellant and David Fryman of Ballard Spahr for the appellee.


Crystallex Int’l v. Petroleos de Venezuela — bankruptcy — reversal — Rendell

A divided Third Circuit panel today applied Delaware law to hold that a transfer by a non-debtor cannot be a fraudulent transfer under the Delaware Uniform Fraudulent Transfer Act.

Joining Rendell was Vanaskie; Fuentes dissented with a useful diagram. Arguing counsel were Nathan Eimer of Illiniois for the appellant and Robert Weigel of Gibson Dunn for the appellee.

New opinion — Third Circuit reverses summary judgment in FDCPA suit

Panico v. Portfolio Recovery Assocs. — civil — reversal — Restrepo

Applying Delaware statute-of-limitations law, the Third Circuit today reversed a grant of summary judgment in favor of the defendants in a putative class-action suit under the Fair Debt Collection Practices Act. The main dispute on appeal involved whether the defendant sought to collect on debts after the statute of limitations on those debts had already run.

Joining Restrepo were Vanaskie and Krause. Arguing counsel were Philip Stern of Stern Thomasson for the plaintiff and David Anthony of Troutman Sanders for the debt collector.

Another en banc grant today — this one is a big Virgin Islands case

I posted earlier today about the Third Circuit’s order granting rehearing en banc in Hayes v. Harvey. A thoughtful reader has alerted me that the court granted en banc rehearing today in a second case, too.

The case is Vooys v. Bentley, No. 16-3912. The order granting rehearing was issued sua sponte, and it indicates that a majority “determined that the case is controlled by a prior decision of the court which should be reconsidered.”

The “prior decision” appears to be United Industrial ex rel. Bason v. Gov’t Virgin Islands, a 2014 published opinion I discussed and linked to here. Bason held that, although Congress stripped the Third Circuit of its certiorari jurisdiction over Virgin Islands cases in 2012, the court retained cert jurisdiction over cases that were filed in VI courts before 2012.

Both the respondents and an amicus argued that Bason was wrongly decided and conflicted with prior Supreme Court caselaw. (The amicus, the VI Bar Ass’n, argued that Bason misapplied Sinochem to decide an issue without first confirming subject-matter jurisdiction, broadly the same argument I unsuccessfully made last year for rehearing in Hoffman v. Nordic Naturals.)

While nothing is certain, the posture of this order (sua sponte and prior to panel ruling) strongly suggests that overruling of Bason is likely. En banc grants in similar postures resulted in overrulings in Joyce, Rojas, Al-Sharif, and Quinn in recent years.

Third Circuit grants en banc rehearing in Hayes housing appeal

Today the Third Circuit granted en banc rehearing in Hayes v. Harvey, an important public-housing appeal. [Update: the order granting is now on the circuit website.] A divided panel had ruled in October that public housing residents had no right to remain in their homes despite statutory language that they “may elect to remain.” Judge Fisher authored the panel-majority opinion and was joined by Judge Hardiman; Judge Greenaway dissented. [Full disclosure: I provided some minor rehearing-stage consulting assistance to counsel for the appellants.]

My summary of the (now-vacated) panel opinion is here. I’m feeling clever because I began my post by saying I thought there was a realistic shot at en banc rehearing.

A couple nerdy points:

  • I’m unsure whether the court will schedule en banc argument for February or May. It may depend on whether the court believes supplemental briefing is needed. In Lewis, the court granted en banc rehearing on 11/25 and heard argument on 2/19, but this would be a month tighter, so we’ll see.
  • The order granting rehearing lists 13 judges (all 12 active judges including Judge Bibas, plus Fisher because he was on the panel), suggesting no recusals. No dissents were noted.
  • The rehearing petition was supported by two strong amicus briefs, including one for the city of Philadelphia. I’ve long believed that rehearing petitions are an under-utilized opportunity for effective participation by amici.

Judge Barry owns a mansion next to Mar-a-Lago, and it’s reportedly listed for sale for more than double what she paid for it 13 years ago

In Third Circuit-related real estate news, Claudine Zap reported today on that inactive Third Circuit Judge Maryanne Trump Barry has listed her beachfront mansion in Palm Beach, Florida, for sale for $23.9 million.

The article reports that she purchased it for $11.5 million in 2004, and that it is “just steps away” from her presidential brother’s Mar-a-Lago country club.

“If she gets anywhere near her asking price,” says the article, “the profit will be, well, huge.”

New opinion — Eleventh Amendment bars GSK’s challenge to state’s Flonase suit

In re: Flonase Antitrust Litig. — civil — affirmance — Greenaway

The Third Circuit today upheld a district court’s rejection of a pharmaceutical company’s effort to enforce a settlement and enjoin Louisiana from suing it in state court. The state argued that GSK’s effort violated the Eleventh Amendment.

The opinion answered two main questions:

First, does a motion for approval of a class action settlement qualify as a suit against a state for Eleventh Amendment purposes if the requested settlement agreement enjoins a state from suing in a state court? Second, if the Eleventh Amendment does cover this motion for settlement approval, may GSK avoid the Eleventh Amendment’s prohibition by showing that Louisiana waived its sovereign immunity? We find that the Eleventh Amendment covers this motion and that GSK may not avoid its bar.

Greenaway was joined by Chagares and Vanaskie. Arguing counsel were Lisa Blatt of Arnold & Porter for GSK (with supporting amici from several high-powered pro-business usual suspects) and John Alden Meade of Louisiana for the state.

Trump’s latest nominees include two former Third Circuit clerks

The White House yesterday announced a new batch of nominees for federal judgeships and US Attorney slots. There was only one circuit nominee, and it was for the Tenth Circuit, not for either of the two current openings on the Third Circuit.

There were, however, five nominees for district court seats within the Third Circuit, and one of them is a former Third Circuit clerk: Colm Connolly, nominated for D.Del., who clerked for Judge Stapleton. The other four nominees for district judgeships within the Third Circuit:

It’s tremendous to see that three of these five nominees are women. Two of the nominees — Baxter and Horan — were previously nominated by President Obama; both were reported out of the Judiciary Committee on voice votes but never got full-Senate votes.

Also in this batch nominees was William McSwain for US Attorney for E.D. Pa. McSwain is a former clerk for Judge Rendell.

Senators Toomey and Casey issued statements applauding the Pa. nominations, as reported by here. Says the article:

Since Senator Toomey joined the Senate in 2011, Senators Toomey and Casey have worked together, in a bipartisan fashion, to fill vacancies on the federal bench in Pennsylvania. Together, they have vetted, recommended, and confirmed 14 Federal District Court Judges and two Circuit Court Judges for Pennsylvania. Only two states – California and New York – have had more judges confirmed to their federal benches during this time.

It’s official: Stephanos Bibas is a Third Circuit judge

Judge Stephanos Bibas has begun his service on the Third Circuit. He is now listed as a judge on the circuit’s website, here.

Judge Bibas was confirmed by the Senate back on November 2, and according to his official court-website biography he received his commission on November 20, but he did not formally join the court and begin his duties until he took the oath. I believe that happened today, but I have not found official confirmation of that.

Judge Bibas becomes the court’s 12th active judge, with two judgeships open.

Welcome to the Third Circuit, Judge Bibas!

The strange case of the disappearing oral argument videos

An eagle-eyed reader pointed out to me today that there are only 10 oral argument videos posted today on the Third Circuit’s webpage. (Including some interesting ones, like Finkelman v. NFL, which I discussed here., and US v. Hird, which features a who’s who of top circuit criminal-appeals lawyers.)

The odd thing about that is that a number of argument videos that previously were posted by the court are no longer there. For example, back in May I posted here about three videos the court had posted, but only one of them is still there.

If anyone knows the solution to this mystery, get in touch. I’ll update this post if I learn more.


New opinion — second time is the charm for ticket buyer suing the NFL

Finkelman v. NFL — civil — reversal — Fuentes

The introduction of today’s opinion:

Plaintiff Josh Finkelman had the once-in-a-lifetime opportunity to buy tickets to Super Bowl XLVIII held in his home state of New Jersey in February 2014. However, the National Football League (“NFL”) withheld almost all of these tickets—99%—from the general public for league insiders, offering the remaining 1% to lucky winners of a lottery that all could enter. To get his tickets, Finkelman turned to the secondary market, purchasing two tickets with a face value of $800 each for $2000 each. One month before the Super Bowl, he filed suit, alleging that the NFL’s ticket distribution violated New Jersey law. Specifically, Finkelman claims that the NFL’s withholding of more than 5% of the available tickets for the Super Bowl violated the New Jersey Ticket Law. He has now had two opportunities before our Court to show that he has Article III standing to pursue this claim. In our first decision on this subject, we found that he did not. He has since added claims about how the NFL’s secondary ticket market functioned and how the NFL’s actions raised ticket prices on the secondary market. The District Court found that these additional allegations remained insufficient to allege Finkelman’s standing. We disagree. Based on the plausible economic facts pleaded in Finkelman’s amended complaint, we conclude that Finkelman has standing and we therefore have subject matter jurisdiction over this case. We defer action on the merits of this appeal pending decision by the Supreme Court of New Jersey on the pending petition for certification of questions of state law.

My post on the prior appeal is here.

Joining Fuentes were Smith and Stark D.Del. by designation. Arguing counsel were Bruce Nagel of Nagel Rice for the ticketbuyer and Jonathan Pressment of Haynes & Boone for the league.

Third Circuit moving to NextGen ECF next month

The Third Circuit emailed out the following announcement this week (emphasis mine):

Effective January 16, 2018, the Third Circuit Court of Appeals will implement the Next Generation (NextGen) of Case Management Electronic Case Filing (CM/ECF) system.  Three major benefits of the new software are: 1) removal of the Java-plugin, 2) a single user name and password for PACER and electronic filing in all NextGen courts, and 3) an enhanced user interface.

ACTION REQUIRED:  All CM/ECF users who wish to e-file on or after January 16, 2018 must complete a prerequisite which is to upgrade your individual PACER accounts.  Click the link to view a short video on how to upgrade your account or read the same instructions in this PDF .

An additional requirement cannot be done until we are live on NextGen CM/ECF, which will be January 16, 2018.  More information will follow closer to that date.

Click the link below to view a short video regarding NextGen CM/ECF.

I honestly don’t know much about NextGen ECF yet, but I assume this is welcome news.

New opinion — firing employee for refusing to be vaccinated wasn’t religious discrimination

Fallon v. Mercy Catholic Med. Ctr. — civil — affirmance — Roth

An employee of a Catholic hospital refused to get a flu shot on grounds that he claimed were religious. When the hospital fired him, he sued, alleging religious discrimination. The district court dismissed his suit, and today the Third Circuit affirmed. The opinion includes a fascinating discussion of how “belief in God or diving beings was not necessary” for a belief to be considered religious: “nontheistic beliefs could also be religious within the meaning of the statute as long as they occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.” (Cleaned up). The opinion rejected the employee’s argument that his anti-vaccination views were religious.

Joining Roth were Smith and Jordan. Arguing counsel were Alan Schorr of Cherry Hill NJ for the employee and former Greenberg clerk Andrea Kirshenbaum of Post & Schell for the hospital.

Two new opinions

US v. Graves — criminal — affirmance — Roth

The Third Circuit today affirmed a criminal conviction and sentence, rejecting the defendant’s arguments that his motion to suppress should have been granted and that he should not have been sentenced as a career offender. The court deepened a circuit split over a subsidiary legal question, the level of force required to sustain a generic federal robbery conviction. It also held that the most important factor in determining the elements of a generic offense was the approach of the majority of states, not the Model Penal Code.

Joining Roth were Hardiman and Fisher. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and Stephen Cerutti II for the government.


Constitution Party of Pa. v. Cortes — elections  — reversal — Roth

Last year, the Third Circuit affirmed a ruling striking down certain laws that made it difficult for third parties to get on the ballot. On remand, the district court set new signature-gathering standards for third-party candidates, but it made no factual findings and gave no explanation for the standards it chose. Today, the Third Circuit held that this lack of fact finding requires reversal.

Joining Roth were Smith and Jordan. Arguing counsel were Oliver Hall of the Center for Competitive Democracy for the parties and Claudia Tesoro of the Pa. A.G.’s office for the appellee.

New opinion — an IDEA administrative-exhaustion appeal

Wellman v. Butler Area School Dist. — civil / disability — reversal — Shwartz

The Third Circuit today held that a plaintiff’s suit under the Americans with Disabilities Act, the Rehabilitation Act, and section 1983 was subject to the administrative-exhaustion requirement of the Individuals with Disabilities Education Act. Since the plaintiff earlier had released all claims that could have been brought at an administrative hearing, the Third Circuit held that this suit must be dismissed with prejudice, vacating the district court’s dismissal-without-prejudice order.

Joining Shwartz were Smith and Jordan. Arguing counsel were Edward Olds of Olds Russ for the student and Thomas Breth of Dillon McCandless for the district.

Third Circuit Judges Jordan and Roth will present at appellate-advocacy CLE in Delaware on January 10

No one is born knowing how to tell compelling stories in their statements of the case. No one’s first oral argument is an elegant symphony of understated persuasion. Even the best Third Circuit advocates, lawyers like Peter Goldberger and Nancy Winkelman and Donna Doblick, work very hard to continue learning and improving. Appellate advocacy isn’t a talent, it’s a skill.

Here’s a chance to improve your appellate skills. Next month, there will be a two-hour CLE program in Delaware, entitled Effective Third Circuit Advocacy. The presenters:

  • The Honorable Kent A. Jordan, Circuit Judge, U.S. Court of Appeals for the Third Circuit
  • The Honorable Jane R. Roth, Circuit Judge, U.S. Court of Appeals for the Third Circuit
  • The Honorable Christopher J. Burke, Magistrate Judge, District of Delaware
  • Tieffa Harper, Assistant Federal Public Defender, District of Delaware
  • Ilana Eisenstein, DLA Piper partner and former Assistant to the Solicitor General

The program will take place on Wednesday, January 10 from 3 to 5 p.m. with refreshments afterwards. It will be held at the Federal Courthouse in Wilmington at 844 N. King Street.

The event is co-sponsored by the Third Circuit Bar Association (3CBA) and the Delaware Chapter of the Federal Bar Association. The fee to attend is $20 for current members of either sponsor or $40 for non-members.  (You can join or renew at the event, or online here or here.)

To register in advance, email me at (I’m a 3CBA board member and one of the event’s organizers, along with Nilam Sanghvi and Kelly Farnan.) In your email, include your name, business address, and state(s) of admission.

(If you’re interested but unable to attend this one, panic not! 3CBA plans to put on a series of these programs in 2018 and beyond, featuring different Third Circuit judges, in locations around the circuit.)

This should be a terrific event. I’m going, and I hope you can, too.

The Kozinski sexual-misconduct allegations and the Third Circuit

On Friday Matt Zapotosky of the Washington Post reported that six former clerks and staffers have accused Ninth Circuit Judge Alex Kozinski of sexual misconduct. One of the accusers, former Kozinski clerk Heidi Bond, has posted a fuller account here, and it’s devastating.

Kozinski responded to the accusations both in the original Washington Post story and in this follow-up in the Los Angeles Times by Maura Dolan. Kozinski’s public response to date has been disturbing. First:

After Bond left the legal profession, [Kozinski] said, she sent him an email asking if he wanted an audio version of one of her novels. Kozinski described it as a romance novel with one chapter containing “very torrid sex.”


“I have been a judge for 35 years and during that time have had over 500 employees in my chambers. . . . [I]t is regrettable that a handful have been offended by something I may have said or done.”


“If this is all they are able to dredge up after 35 years, I am not too worried.”

This looks to me like a calculated strategy of attacking the accusers, and I hope judges condemn it.

Anyhow, this is a Third Circuit blog, and obviously Kozinski is not a Third Circuit judge, but this story has a surprising number of Third Circuit connections.

First, Third Circuit Judge Krause clerked for Judge Kozinski in 1993-94. Per How Appealing, she is one of four circuit judges who clerked for him. [UPDATE: to be clear, Judge Krause has not made any public comment regarding the accusations against Judge Kozinski.]

Second, it was the Third Circuit Judicial Council that adjudicated the misconduct allegation against Kozinski in 2009 for storing pornographic images on a publicly available website. (A link to the opinion is here.) The matter was transferred by Chief Justice Roberts to the Third Circuit–Professor Arthur Hellman believed that was done because of Roberts’s absolute confidence in then-Chief Judge Scirica. The investigation committee included Judges Scirica, Rendell, and Stapleton. The Council that ruled included Judges Scirica, Sloviter, McKee, Rendell, Barry, and Ambro. (I tweeted some thoughts about that proceeding here and here.)

Third, Judge Scirica also was involved in the current matter, as Heidi Bond recounts:

On the advice of two friends, I spoke to several people in the federal judiciary—first, Jeffrey Minear, Counselor to Chief Justice Roberts, then, at his referral, to Judge Scirica of the Third Circuit, in his capacity as the chair of the Committee on Judicial Conduct and Disability.

I wanted to know if I could tell some of those details to my husband, a therapist, or some close friends.

I want to be clear that Judge Scirica was warm, understanding, and kind. He also insisted that I not tell him any facts of the situation. I believe the reason he gave was that since the question was whether judicial confidentiality applied, there was no way to give specifics without potentially breaching confidentiality.

Initially, he told me that if what had happened was a matter of personal misconduct on the part of the judge, that I was not bound by the code of chambers confidentiality, and that whatever I needed to do for my own closure and healing was fine, so long as it wasn’t about a judicial matter.

That’s where I paused. “What,” I said, “if it’s not about a matter that my judge decided, but if there’s a nexus of facts that are relevant to another judicial matter? What if there’s a nexus of facts between what I want to talk about and the matter that arose from US v. Isaacs?”

Here I must digress. The porn the judge showed me was stored on his personal server, a computer in his house that he left entirely unsecured. A year after I left, a disgruntled litigant discovered the existence of this server, and, in light of the images on it, Kozinski asked that an official ethics investigation be made into his conduct.

A pause. “I know something about that matter,” Judge Scirica finally said. I knew he did. He’d written the opinion that ultimately exonerated Kozinski in that investigation. I had done my best to pay as little attention to the matter as possible.

“What then?” I asked.

It took him a while to think this through. Because of that investigation, the only way that he could tell me if the matter was covered by judicial confidentiality was if I told him the facts of the matter, but there was a possibility that the matter was covered by confidentiality, in which case I could not tell him.

I wrote down his next sentence, and so this is a direct quotation: “I cannot think of any person, persons, or institution that can give you an answer on this,” he said.

It’s an important story and I suspect it’s just getting started.

Want to be a Third Circuit bar association board member?

There are two openings on the Board of Governors for the Bar Association of the Third Federal Circuit. If you’re interested in joining the board, express your interest now.

I’m a 3CBA board member, and I enthusiastically encourage anyone passionate about Third Circuit practice to consider it. It’s a privilege and a real pleasure getting to work with the remarkable folks on the 3CBA board. 3CBA does lots of good work — putting out a circuit practice guide and a newsletter, putting on circuit-conference programming, organizing CLEs with Third Circuit judges and appellate experts, and more — and you can help us do it better.

While anyone is encouraged to express interest now, we anticipate filling the two current openings with one candidate each from Delaware and New Jersey.

To express your interest, send an email to 3CBA’s president, Chip Becker, at Chip.Becker at

And if you’ve read this far and you’re not a 3CBA member yet, well, egads. The link to join is here. And do it fast, dues are going up in 2018 but are still just $40 until then.

New opinion — Third Circuit reverses qualified-immunity error despite appellant’s forfeiture

Barna v. Board of School Directors — civil rights — partial reversal — Chagares

After a man was “threatening and disruptive” at several school board meetings, the school board banned him from attending any of its future meetings. The man sued the board and various individuals, alleging the denial of his First Amendment rights. The district court, adopting a magistrate judge’s recommendation, granted summary judgment to all defendants based on qualified immunity. Today, the Third Circuit reversed in part, upholding summary judgment for the individuals but reversing and remanding as to the school board, which under a 1980 Supreme Court ruling does not enjoy qualified immunity. The court did not decide whether the ban was in fact unconstitutional.

There was an interesting procedural wrinkle here: the appellant apparently inadvertently failed to argue that school boards are not entitled to qualified immunity. The Third Circuit held that the the issue was forfeited, not waived, and that “truly exceptional circumstances” existed to excuse the forfeiture given the district court’s clear legal error and the absence of surprise.

Joining Chagares were Greenaway and Restrepo. Arguing counsel were Jonathan Phillips of Orwigsburg, PA for the appellant and Thomas Specht of Marshall Dennehey for the school board. Also listed as counsel for the appellant was Gary Marchalk, who died tragically earlier this year.


Lawfare takes a closer look at Third Circuit’s Uddin ruling

Here’s an interesting post on the Lawfare blog by law student Jesse Lempel, titled, “Tier III Terrorist Designations: The Trump Administration and Courts Move in Opposite Directions.” The gist is that the Trump administration is making it easier for low-level officials to deny visas and deportation relief to people based on their membership in home-country political groups, while courts pushed in the opposite direction.

The main court ruling discussed is the Third Circuit’s September ruling in Uddin. Lempel also discusses a 2006 concurrence by Judge Barry that he describes as “extraordinary” and, with obvious irony, “[t]he most trenchant judicial protest of the wide reach of the INA’s ‘terrorist activity’ exclusion.”

Supreme Court solicits SG’s views on Fosamax case

The Supreme Court yesterday invited the Solicitor General to file a brief in Merck Sharp & Dohme v. Albrecht, No. 17-290. Merck’s petition for certiorari is pending. Justice Alito is recused.

When it was in the Third Circuit, this case was captioned In re: Fosamax. The Third Circuit opinion is here, my post on the opinion is here. Regular readers will recognize this as the case at the center of my ‘Blogging partner rampages …’ post.

New opinions — an en banc maritime appeal and a messy escheat appeal

Joyce v. Maersk Line — maritime — affirmance — Jordan

The en banc Third Circuit today unanimously overruled a circuit-outlier 1990 maritime case and held that “a union contract freely entered by a seafarer — a contract that includes rates of maintenance, cure, and unearned wages — will not be reviewed piecemeal by courts unless there is evidence of unfairness in the collective bargaining process.”

The court granted en banc rehearing sua sponte, after panel briefing but before panel oral argument. Shortly before the scheduled oral argument, the panel appointed Tulane Law professor Martin Davies as amicus curiae to discuss the case it later overruled. Today’s opinion thanked Davies for his “insightful” brief.

As noted the opinion was unanimous. Arguing counsel were Dennis O’Bryan of Michigan for the seaman and John Walsh of New York for the employer.


Marathon Petroleum v. Secretary of Finance — civil — partial affirmance — Jordan

This case arises from unspent money on gas-station gift cards; Delaware wanted to audit the gas-station companies to seize the unspent money as abandoned property. The gas-station companies sued, asserting that the state escheat law is preempted by federal common law. Today, the Third Circuit held that (1) private parties had standing to assert preemption by federal escheatment law, but (2) the companies’ claim was mostly unripe although dismissal should have been without prejudice. The court rejected on the merits the part of the claim that was ripe.

Joining Jordan were Chagares and Krause. Arguing counsel were Diane Green-Kelly of Reed Smith for the gas-station companies and Steven Rosenthal of Loeb & Loeb for the state.

Everyone knows panel assignments are random, and everyone is wrong

Duke law professor Marin Levy has posted a new Cornell Law Review article on SSRN entitled “Panel Assignment in the Federal Courts of Appeals.” I first saw it on How Appealing, where Howard Bashman describes it as interesting and important, and I heartily agree. Levy has written many valuable law review articles (a phrase I sometimes think of as oxymoronic) on how federal courts function, and this is another gem.

While I encourage you to read the article in full, I’ve collected here for busy Third Circuit junkies all the CA3-specific parts. Note these are based on interviews with 3 judges and a senior member of the clerk’s office in 2012 and 2013, so as Levy notes they may not reflect current practices. Note also that she used male pronouns for everyone to preserve anonymity.

Here are the Third Circuit references:

  • “There, information was collected from judges about dates that should be blocked out—for a conference or vacation—and that information was inputted into a computer program that ultimately created a calendar to be approved by the chief judge.”
  • “A senior member of the clerk’s office in another circuit said that information was collected regarding when senior judges wanted to sit, and then that information was factored into the creation of panels.”
  • “A judge of another circuit said that in his court, no two judges were permitted to sit together more than twice in the same sitting period so that all the judges got to know one another.”
  • “In another circuit I was informed that this practice had been in use in the past, depending upon the chief judge. Specifically, I was told that some chief judges would accommodate a judge who said he would not sit with another judge, whereas other chief judges would not.”
  • ” From time to time, some circuits hold special sessions of court—either at a district court in a city outside of the designated locations for oral argument or at a law school within the circuit. Of the five circuits surveyed here, all but the D.C. Circuit reported having held special sittings in the recent past. . . . a senior member of a clerk’s office in one circuit stated that judges were not picked specially for these panels . . . .”
  • “One Third Circuit judge referred to the computer program that the court employed to help set panels but noted that he did not know precisely how the program worked.”

Am I a bad person because now the only thing I want to know is what judges refused to sit together?

Two new opinions, including a big qualified-immunity reversal

Kedra v. Schroeter — civil rights — reversal — Krause

A Pennsylvania state trooper died during a routine firearms training when the instructor allegedly failed to check whether a gun was empty before pointing it at the trooper’s chest and pulling the trigger. The slain trooper’s wife sued the instructor under 42 USC § 1983, alleging a due process state-created-danger claim. The district court ruled that the instructor was entitled to qualified immunity because he did not know that the gun was loaded. Today, the Third Circuit reversed, holding that the obviousness of a risk is relevant to prove that the state actor was aware of that risk and that here the wife sufficiently alleged the instructor’s awareness.

Judge Fisher concurred, although in my view it would have been more accurate to say he concurred in part and concurred in the judgment. He argued, among other points, that the majority’s reliance on the obviousness of the risk and the officer’s training was mistaken. He wrote:

I am concerned by the impact that the breadth of the majority’s decision could have on the law of qualified immunity. I am equally troubled by the recent trajectory of this Court’s jurisprudence.

Fisher closed by noting, “Perhaps the full Court will revisit the qualified immunity framework to reexamine whether it is consistent with the history of the Due Process Clause.” (Judge Fisher assumed senior status on February 1, and senior judges do not vote on whether to grant en banc rehearing.)

Joining Krause was Melloy CA8 by designation; Fisher concurred. Arguing counsel were Michael Quirk of Williams Cuker for the wife and Claudia Tesoro of the state AG’s office for the instructor.


US v. Ferguson — criminal — affirmance — Hardiman

The Third Circuit held that the district court did not commit plain error when it mentioned a defendant’s bare arrests at sentencing, distinguishing Mateo-Medina.

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

Holiday gifts ideas for the appeals nerd

It’s Cyber Monday, but you’ve been too busy writing briefs and checking #AppellateTwitter to make a holiday wish list. Are you doomed?  Probably. Get that big, grateful smile ready for when you unwrap your third law dictionary and that handsome gavel from Aunt Peg.

Here’s some help. Twelve gift ideas for appeals nerd. I’m a Third Circuit fanboy, so naturally my list is CA3-centric.

For your library

  • Draft No. 4, by John McPhee. The brand-new guide to nonfiction writing by the acclaimed New Yorker writer. If Santa doesn’t bring this for me, heads will roll.
  • Scalia Speaks, edited by Christopher Scalia & Ed Whelan. I’m no fan of Scalia the Justice, but even I realize how much there is to learn from Scalia the Writer. Holiday jiggery pokery!
  • Rebooting Justice, by Benjamin Barton & Stephanos Bibas. The latest book co-authored by the Third Circuit’s newest judge, described by the New York Times as “enlightening and well-written.”
  • Winning on Appeal (3d ed.), by Tessa Dysart & Leslie Southwick. The new edition of the classic guide to appellate advocacy originally authored by Third Circuit Judge Aldisert. A highlight is a chapter on how 12 appellate lawyers prepare for oral argument, starting with Howard Bashman and ending with Seth Waxman.

For your office

  • A professional font. Is there is an appellate-nerdier gift in the whole world than a new font? There is not. I recommend Matthew Butterick’s Equity. Other options here.
  • A nice mouse. You spend half your day scrolling through web pages and PDFs, get a mouse that scrolls like a dream.
  • Membership in the Third Circuit Bar Association. Yes you must, and $40 is criminally under-priced.

For your life

  • I’m biased! but I think my sister Tanya Stiegler makes some pretty amazing jewelry. Strangers stop my wife to compliment her Tendril earrings.

And one more

  • A donation to the Pennsylvania Innocence Project. Support the work of terrific lawyers working for a terrific cause.



New opinion — Third Circuit grants resentencing in Guidelines-interpretation appeal

US v. Ley — criminal sentencing — reversal — Fisher

The Third Circuit today ruled in a criminal defendant’s favor in his appeal challenging the district court’s interpretation of a sentencing-guidelines provision. The introduction of the opinion succinctly explains the issue:

This case concerns the criminal history provisions of the Sentencing Guidelines. A defendant’s criminal history is calculated by assigning points for prior sentences. The Guidelines instruct that prior sentences “always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” United States Sentencing Commission, Guidelines Manual § 4A1.2(a)(2) (USSG). The question presented here is whether a traffic stop, followed by the issuance of a summons, constitutes an intervening arrest in the context of the criminal history Guidelines.

The court held that issuance of a summons does not count as an “arrest” for this purpose, joining three other circuits and splitting with the Seventh. The court also rejected the government’s argument that defendant waived the issue by failing to object to a supplemental PSR addendum.

Joining Fisher were Hardiman and Roth. Arguing counsel were Samantha Stern of the WDPA federal defenders for the defendant and Laura Irwin for the government.


Two lessons from the amended opinion in Mathias

Yesterday the court issued an amended opinion in Mathias v. Superintendent and an order explaining what changed. The changes themselves, which the court described as “minor,” are of interest mainly to habeas nerds like me (the court removed language that applied double deference to habeas review of IAC prejudice). But two practice points are worth noting.

First, the court explained in footnote 4 of the amended opinion that the language it was removing from its original opinion involved a disputed legal point “not specifically briefed by the parties in this case.” This happens, and alert counsel can use this case when it does.

Second, the court explained that the changes were made to address points raised by Mathias in his rehearing petition. Counsel for Mathias, Maria Pulzetti of the Federal Community Defender in Philadelphia (and a former colleague of mine), is a first-rate appellate lawyer, and it made a difference here. Many lawyers arguing for rehearing would just assert that the panel got it wrong, cite the relevant Supreme Court case, and call it a day. Many more would look no further once they found prior Third Circuit rulings that arguably conflicted. But Pulzetti evidently kept digging, because she figured out that the circuits were split on this issue. The court referred to this circuit split and cited the case Mathias cited in the amended opinion. Although rehearing was denied, Pulzetti’s diligence improved the opinion and benefited the Court.

Republicans just eliminated blue slips for circuit nominees, and the Third Circuit is where that matters most

Senate Judiciary Committee Chair Chuck Grassley announced last week that he’ll no longer honor blue slips for circuit nominees. This is a very big deal, especially here in the Third Circuit.

By withholding a blue slip, an individual senator from a judicial nominee’s home state was able to block the nomination. (Per longstanding practice, circuit seats are designated to specific states; more populous states get more seats.) That’s how PA’s Republican Senator Pat Toomey blocked Obama’s nomination of Rebecca Haywood for the Third Circuit seat that Trump just filled with Stephanos Bibas. It’s also how Toomey held up the nomination of Judge Restrepo for over a year.

But blue slips gave senators not just the power to delay or block, but also to influence. Indeed, that’s where their real power was. Only a relative few circuit nominations ended up being blocked outright, but many more were filled with compromise centrists instead of party-base dream picks.

I believe the GOP’s strategy behind eliminating blue slips for circuit nominees isn’t that they’re afraid senators were going to block a few nominees like Stras or Bounds or Duncan. It’s that they don’t want to have to compromise with Democrats and moderate Republicans about any of them. They want every Trump circuit judge to be a conservative home run: young, ideologically committed, and, in Carrie Severino’s words, “well-known in the conservative legal movement.”

As Breitbart explained, “Grassley’s decision clears the path for the president to rack up an impressive number of successful judicial appointments,” and “All of President Trump’s judicial nominees should now make it through” the Judiciary Committee. They don’t care about preserving norms, they care about maximizing advantage. Eliminating blue slips frees them to try.

Let’s look at some numbers to get a clearer sense of the impact.

Today there are 18 circuit court vacancies. Eighteen circuit seats is a lot, more than Obama filled in the final three years of his presidency. Most of those seats — 11 of 18 — are openings that, until last week, Democrats were able to use their blue-slip power to block, slow down, or influence.* No more. When push comes to shove, I expect Democrats to have just as much say in who gets picked for the two pending Second Circuit vacancies from New York, for example, as they had for the two Fifth Circuit openings from Texas: zero.

Dear reader, that’s a big deal.

And it’s a bigger deal in the Third Circuit than anywhere else. Here are the 18 current vacancies (seven of which already have a nominee), listed by circuit:

  • CA2 — 2
  • CA3 — 2
  • CA5 — 4
  • CA7 — 3
  • CA8 — 2
  • CA9 — 4
  • DC  — 1

Now here’s the same list, but this time I’ve added in parentheses how many of those vacancies Democrats had blue-slip power over before last week:

  • CA2 — 2 (2)
  • CA3 — 2 (2)
  • CA5 — 4 (0)
  • CA7 — 3 (3)
  • CA8 — 2 (1)
  • CA9 — 4 (3)
  • DC  — 1 (0)

Finally, for each of those circuits, here is the court’s current ideological make-up by the (imperfect!) shorthand measure of how many judges were appointed by presidents of each party:

  • CA2 — 7 D, 4 R    (+3 D)
  • CA3 — 7 D, 5 R    (+2 D)
  • CA5 — 5 D, 8 R    (+3 R)
  • CA7 — 2 D, 6 R    (+4 R)
  • CA8 — 1 D, 8 R    (+7 R)
  • CA9 — 18 D, 7 R  (+ 11 D)
  • DC  — 7 D, 3 R     (+4 D)

Compare those last two lists, and you see that the Third Circuit is where eliminating blue slips matters most:

  • The Third Circuit is the only circuit in the country where there already are enough vacancies for Trump to change the court’s overall balance of power; and
  • Both of the Third Circuit’s vacancies — one PA, one NJ — were seats that, until last week, Democrats had blue-slip power over.

When PA’s Democratic Senator Bob Casey returned his blue slip for Bibas, he reportedly warned that he would block conservative activist David Porter if Trump nominated him. With blue slips gone, will Porter’s nomination happen now?

For the New Jersey opening, the Trump administration was reportedly negotiating with the state’s two Democratic senators, Cory Booker and Mistrial Bob Menendez, to nominate Chris Christie ally Paul Matey. Will Matey’s nomination happen now? Or was he a compromise, one the GOP no longer cares to make?

Exchanging Judges Rendell, Fuentes, and Fisher for Bibas plus two committed conservatives is intended to have an impact, and I have no doubt that it would.

Eliminating blue slips will matter in the Second Circuit too, but not quite as much yet. It will also matter in the Seventh and Ninth Circuits, but not nearly enough to change the overall balance of either court.

These are chaotic times, so it’s hard to be sure how all this will play out. Grassley could change his mind again. The Trump presidency could implode. Republicans could lose the Senate before they manage to fill these seats. Senate Democrats could exercise leverage over judicial nominations in other ways. Trump could stop doing Leonard Leo’s bidding. Moderate Republican senators could stop doing Trump’s bidding. Republicans could moot the whole shebang by enacting Federalist Society co-founder Steven Calibresi‘s poisonous new court-packing scheme. Or, nuclear holocaust. No one knows.

But this much is clear: last week, the first phase of Trump’s transformation of the circuit courts ended. It went better than conservatives could have dared to hope, but this was only the first 11 months. Conservatives hope it’s just the beginning.


* I calculated myself all the blue-slip and appointing-president stats in this post. The circuit vacancies are here, the judges’ chambers are on the circuit websites or Wikipedia, the judge’s appointing presidents are here or on Wikipedia, and the party of each state’s senators is here. (Fellow nerds: Yes, I realize it’s theoretically possible for a judge to have her/his chambers in a state different from that seat’s home state, yet still be within the circuit so that the switch is not obvious. I know that’s not the case for several of the 20 seats discussed here, and I’ve assumed it’s not for the rest, either.)

A Third Circuit panel *really* didn’t like the district court opinion it was reviewing

A Third Circuit panel yesterday issued a non-precedential opinion in Betz v. Satteson, and, although they affirmed, they expressed their displeasure with the opinion below with gusto.

Right out of the gate, in the opinion’s second sentence, the panel said it was “troubled by the inappropriately caustic and derogatory tone of the District Court’s opinion.” Then a footnote added:

The District Court here issued a 125-page opinion peppered with gratuitous and disparaging remarks about Appellants and their child. Those entrusted with the solemn duties of judicial office are expected to handle proceedings in a manner that reflects the appearance as well as the reality of even-handed justice and respect for the litigants as well as for the law.

And the panel wasn’t done yet. Later on, the opinion said that images in the record “cannot be fairly characterized as the District Court described them” and hammered “the District Court’s incorrect and intemperate characterization of the video.”

Holy smokes.

The district court opinion is not like any district court opinion I’ve seen before. It speculates that the 13 year-old plaintiff’s injuries were “perhaps a timely form of divine retribution.” Its conclusion says that the case had wasted the court’s time (this on page 124 of its opinion), and advised the child to apologize and accept the consequences of his actions, “which advice he apparently has not received from his parents.”

(On a more mundane note, the district opinion also identifies the authors of most of the Third Circuit opinions it cites, which is a big no-no for briefs and something I’ve never seen in a district court opinion.)

The Third Circuit opinion was authored by Judge Krause and joined by Judges Ambro and Rendell. The district court judge was Judge Matthew Brann of the Middle District of Pennsylvania, who recently sat with the Third Circuit by designation and just authored a non-precedential opinion.

Quite remarkable.

New opinion — Third Circuit issues a major qui tam opinion recognizing government-knowledge and materiality defenses

US ex rel Spay v. CVS Caremark — qui tam — affirmance — McKee

The Third Circuit today affirmed on alternative grounds the dismissal of a suit under the False Claims Act. The district court had dismissed based on the government-knowledge defense; the Third Circuit recognized the defense but held it didn’t apply here. The court affirmed anyway, recognizing a materiality requirement for pre-2009 FCA suits and holding that it was not met here.

Senator Charles Grassley filed an amicus brief supporting the appellant and “arguing against the continued viability of the government knowledge inference.”

Joining McKee were Smith and Restrepo. Arguing counsel were Marc Raspanti of Pietragallow Gordon for the appellant and Enu Mainigi of Williams & Connolly for the appellees.

Video: “Penn Law Celebrates Stephanos Bibas’ Confirmation to the Third Circuit”

Penn Law yesterday posted this video on Youtube of an event at the law school honoring Stephanos Bibas. It’s only five and a half minutes long and if you’re a Third Circuit enthusiast you should definitely check it out.

Of interest:

  • Dean Ruger says Bibas will be a judge “starting soon” (see my post yesterday);
  • Both the Dean and Bibas confirm that Bibas plans to continue teaching courses while he is as a judge; and
  • If you don’t watch the whole video (you should!), skip to 3:00 for Bibas’s interesting thoughts on growing into being a judge and using the law as a tool for societal reconciliation


Judge Hardiman will be the keynote speaker at a Notre Dame symposium on administrative lawmaking

Third Circuit Judge Thomas Hardiman will be the keynote speaker tomorrow at a symposium hosted by the Notre Dame Law Review on “Administrative Lawmaking in the 21st Century.” The symposium website is here, and a preview by Jeffrey Pojanowski on the Notice & Comment blog is here.

Professor Pojanowski writes:

The keynote speaker will be Judge Thomas M. Hardiman of the U.S. Court of Appeals for the Third Circuit. Diligent readers of this blog may remember my quick look at his deference jurisprudence in the lead-up to the last SCOTUS nomination. As my blog post noted, Judge Hardiman has not weighed in at great length on administrative law issues, so seeing what he has to say in this forum will be fascinating, especially with one of Judge Hardiman’s Third Circuit colleagues recently flying the Thomas/Gorsuch flag of Chevron and Auer skepticism.

(The second link is to this blog.)


Fascinating indeed!


A Bibas update, which is mostly a non-update

Although Stephanos Bibas was confirmed by the Senate a week ago, as best I can tell he still hasn’t taken the oath and received his commission. That is, he’s not a judge yet.

I don’t know the reason for the delay, but I don’t think it means anything. I do believe it’s getting to be longer than is typical, though. Allison Eid was confirmed for a Tenth Circuit judgeship the same day as Bibas, and she got her commission the next day. And the last new Third Circuit judge, Judge Restrepo, received his commission two days after his confirmation.

Anyway, anxious Bibas fans can occupy themselves in the meantime by reading over his Judiciary Committee questionnaire, which now is available at this link. Looking back over it today I was reminded how jaw-droppingly prolific he has been. His list of publications and presentations runs over 40 single-spaced pages! It’s astounding.

For Third Circuit nerds, his questionnaire contains a few nuggets:

  • Bibas was admitted to practice in the Third Circuit only this year. By contrast, he’s been admitted to practice for for 5 years or more in 5 other circuits.
  • he signed a letter in support of Judge Krause’s nomination (among numerous others)
  • the first time his name surfaced publicly as a possible Trump nominee for the Third Circuit (Orin Kerr’s tweet in response to my post), April 17, was a month and a half after Bibas was first contacted by the Trump administration and a month after his interviews with the White House and DOJ and with Senator Toomey.

Once I hear the big news, rest assured I’ll post it here.

A look at the “insightful and compelling case” for en banc rehearing in the Cottrell eye-drops case

Stephen McConnell, a partner at Reed Smith in Philadelphia, has this thoughtful post, titled “A Second Look at Eye-Drop Litigation,” on the Drug & Device Law blog. The post is a close look at the petition for en banc rehearing recently filed in Cottrell v. Alcon Labs.

Here’s the heart of it:

The main points in favor of revisiting the Third Circuit’s decision are that it is contrary to Finkelman v. National Football League, 810 F.3d 187 (3d Cir. 2016), it “radically expands Article III standing,” and that it directly conflicts with Eike v. Allergan, Inc., 850 F.3d 315 (7th Cir. 2017).  Moreover, the plaintiff’s inherently speculative theory of injury in fact was rejected by federal courts in Massachusetts and Missouri.  (When a court comes out with a more pro-plaintiffy position than courts in Massachusetts and Missouri, that’s really saying something.)  That theory was also rejected by the district court in Cottrell.  And then the Third Circuit reversed that rejection.

An interesting post about a big case.

Regular readers may recall that a couple weeks ago I posted here (“Blogging partner rampages … “) criticizing blog posts by the same lawyer. In his post today, McConnell has this to say about it:

First, we have been so unkind about the Third Circuit’s error in the Fosamax case that we managed to attract the attention of the excellent CA3 blog.   In that blog, the author wondered whether our dissection of Fosamax was perhaps a bit more violent than necessary.  The author also wondered whether we were coming close to accusing the court of bad faith.  Yes to the former, but definitely No to the latter.  As we told the CA3 blog, we took issue with what we saw as bad reasoning, but never-ever thought there was any bad faith.  (The CA3 blog was generous enough to print our disclaimer.  Thanks for that.)  By and large, we are mighty proud of our home circuit.  We know several of the judges, and every one of them is honorable, hard-working, and much smarter than we are.  Sometimes we are not going to agree with the court’s decisions.  Luckily for us we work in a profession and live in a country where debate and criticism are allowed.

Gracefully said.

A lawyer fainted during his Third Circuit oral argument yesterday

Jeannie O’Sullivan, with additional reporting by Dan Packel, had this story yesterday at Law360, headlined, “3rd Circ. Fracking Case Put Off After River Basin Atty Faints.” The article says the poor lawyer fainted “in the middle of his argument.” He regained consciousness quickly and was attended to by medics. After a brief recess, presiding Judge Jordan announced that the argument was postponed to a later date.

No, the court didn’t post audio of the argument on its website. Yes, I feel a bit guilty for looking.

New opinion — Plaintiffs should have been allowed to amend complaint despite delay caused by attorney’s error

This opinion was issued yesterday. I normally post cases the same day, but I had a big deadline in my Texas capital habeas case.


Mullin v. Administrator — civil rights — partial reversal — Fuentes

The compelling introduction to yesterday’s opinion:

A little over two years into the civil-rights suit brought by Joan Mullin (“Mullin”) over the tragic prison suicide of her son, Robert Mullin (“Robert”), Mullin’s attorney received a discovery document with the potential to reshape the case. A previously undisclosed investigative report about the night Robert died contained statements by fellow New Jersey inmates about a prison guard who allegedly refused Robert’s requests for psychiatric assistance—and urged Robert to kill himself instead. But while Mullin’s attorney received this report mid-case, it was not reviewed in a timely fashion. Instead, due to a clerical error, the disc containing the relevant disclosures was misfiled, and not fully accessed until about ten months later. By that time, Mullin’s operative complaint—premised on a less direct knew-or-should-have-known theory of Robert’s vulnerability to suicide—had already been dismissed in large part. The District Court denied Mullin’s request for leave to amend her complaint, due in part to the delay caused by counsel’s error and, after additional motion practice, granted summary judgment in favor of the one remaining defendant, bringing the litigation to a close.

Mullin’s appeal encompasses both the dismissal of her operative complaint and the order denying further leave to amend. The latter is the focus of this opinion. For the reasons set forth below, we conclude that the decision denying leave to amend amounted to an impermissible exercise of discretion. Some of the factors relied upon to deny leave are not supported by the record or are at odds with our case law. And while we do not intend to minimize counsel’s mistake, it does not, standing alone, support denying leave to amend. Accordingly, we will vacate the order denying leave to amend and will remand for further proceedings.

I think most lawyers who’ve handled complex cases would (nervously) agree with the opinion’s later observation that the lawyers’ error  was “the kind that could affect any law firm no matter how well run.”

It’s an interesting case, an engaging opinion, and a significant ruling on amending civil complaints (and habeas petitions) under Rule 15.

Joining Fuentes were Chagares and Vanaskie. Arguing counsel were Shelley Stangler for the appellant and Gregory Bueno of the NJ AG’s office for the appellees.

Bibas nomination advances to full Senate [updated]

Today the Senate Judiciary Committee approved the Third Circuit nomination of Stephanos Bibas. The committee split along party lines, voting 11 to 9 in favor. Coverage of the committee vote by Tim Ryan for Courthouse News Service is here.

The only Judiciary Committee member from a Third Circuit state is Chris Coons, Democrat from Delaware. Coons is also, to my knowledge, the only former Third Circuit clerk in the Senate, having clerked for Judge Jane Roth.

Just before the vote, Illinois Senator Dick Durbin reportedly spoke against Bibas’s nomination, noting Bibas’s since-renounced support for corporal punishment as an alternative to incarceration. Durbin stated, “this man is outside of the mainstream of American legal thinking,” and “Who would step forward on the Republican side and call for what this professor has called for? Who would stand up and say this man and that kind of thinking belong in a lifetime appointment on a circuit court, the Third Circuit Court?”

Most of Trump’s other circuit nominees have been confirmed by the Senate within about two weeks of their committee vote.

UPDATE: The Washington Times reports that Senate Majority Leader Mitch McConnell plans to confirm Bibas and 3 other circuit nominees next week.

New opinion — Third Circuit affirms bankruptcy dismissal on statutory-mootness grounds (updated!)

In re: Pursuit Capital Mgmt. — bankruptcy — affirmance — Jordan

The Third Circuit affirmed the dismissal of a challenge to a bankruptcy trustee’s sales of assets, holding that the appeal was statutorily moot under 11 USC § 363(m) because the challengers failed to seek a stay of the assets’ sale.

Snoots will be aghast that the opinion contains, “we conclude that the sale was affected in good faith,” although Garner’s Modern American Usage concedes that misusing affect for effect “is an old error that looks as if it will be increasingly difficult to stamp out.”

UPDATE: Snoots will be delighted that Judge Jordan issued this order the next day:

IT IS NOW ORDERED that the above captioned opinion be amended as follows:
Page 29, Section C, the first line, “affected” shall be changed to “effected”.

Joining Jordan were Krause and Stearns D.Mass by designation. Arguing counsel were Craig Martin of DLA Piper for the appellants and Wendy Reilly of Debevoise & Plimpton for the appellee.

3 Third Circuit judges will speak at Judges and Journalists program in Pittsburgh

The Third Circuit is holding its second Judges and Journalists program on October 31 in Pittsburgh. Judge D. Michael Fisher is the moderator, Chief Judge D. Brooks Smith will speak, and Judge Thomas Hardiman is moderating one of the panels. I recommend attending if you can.

Here’s what it’s about:

This conference will explore the challenges and opportunities for improving relationships and lines of communication between judges and journalists. In this dialogue, prominent judges, journalists, and attorneys will discuss how changes in the media landscape, new technologies, ethical constraints, and recent developments in media law affect journalistic reporting on courts and cases.

Besides the three Third Circuit judges, other presenters will include five district judges, a slew of media bigshots, the executive director of the Administrative Office of the US Courts, and some guy named Howard Bashman. The complete program is here.

I got to take part in the first Judges and Journalists program last year in Philadelphia, and it was fantastic. My post about last year’s event is here.

The event is Tuesday, October 31, from 11 to 4 at Pitt’s University Club. Registration is free, or pay $75 to also get 2.5 hours of PA CLE credit.

To attend, RSVP here.

Get to the point: a case study

The en banc Third Circuit heard oral argument yesterday in two cases. The audio of the arguments is already up on the court’s website, here and here.

Listening to the argument in the first case — Douglas, a criminal-sentencing appeal — reminded me how important it is to ditch all the wind-up and get to the point.

Here is how the appellant’s argument began:

Thank you, your honor. [Pause] May it please this honorable Court. Attorney Ivory. My name is Arnold Bernard, and I represent the appellant in this matter, Kenneth Douglas. I’ve asked this panel if I would be permitted to retain five minutes for rebuttal in this matter ….


Thank you. It’s truly a humbling experience to be here before an en banc convention of this honorable Court. On behalf of myself and my client I’d like to thank this Court for granting additional review in this very important matter.

This decision will impact Mr. Douglas, but not only Mr. Douglas, it will likely impact similarly situated defendants across the nation. So with that I’m going to proceed to the arguments that I’ve prepared.

I’m going to dispense with explaining the standard of review that we are going to employ in this matter. I don’t believe that that’s at issue with regards to reviewing the sentencing decision.

However I would like to articulate the issue, and I believe it’s a very narrow and finite issue that this Court must decide. And that issue is specifically whether the appellant, Kenneth Douglas, held a position of trust when he was employed by United Airlines as an airline mechanic who possessed a security clearance and was convicted of smuggling cocaine through that airport that he worked at.

Now when we review the position of trust enhancement, we utilize a two-step process, determining whether or not the appellate held a position of trust and, if so, then whether the appellant abused that position of trust. That first step is reviewed de novo. And that’s what this Court is … I would point that this Court is looking at here.

That is not, not, not the way to start an oral argument.

He’s almost two minutes in, and he still hasn’t argued anything. For starters, the second, third, and fourth paragraphs should have been axed.

(By the way, he’s not getting interrupted because the Third Circuit gives en banc advocates 5 minutes without questions at the start.)

Jumping forward a ways, here is the first sentence counsel utters that contains an actual argument:

Those two examples, I would submit that the distinction between those examples and the singular example that it provides for when it should apply are that the individuals in those examples have mere physical access or the mere physical means to commit the crime by virtue of their access to areas from which the general public is prohibited.

That may not be perfect, but it’s an argument, finally. Counsel finishes that sentence more than three and a half minutes after his time began.

[I want to be clear that I’m not suggesting this guy is a bad lawyer or even that overall he gave a bad argument. Once he hit his stride, he made telling points, and, in fact, I suspect he may win this appeal. (So there, blog guy.) I don’t even mean to suggest that the start of his argument is unusually bad. To the contrary, I think lots of lawyers make the same mistake, especially lawyers who, like him, don’t focus their practice on appeals. It’s just more obvious here because the judges aren’t jumping in to get him on track.]

Okay, so how do the best appellate advocates start their arguments? Well, in the 2016 sports-betting en banc argument (audio), here’s how Paul Clement started:

Good morning your honors, and may it please the Court. Paul Clement for the plaintiffs. New Jersey’s sports-wagering law is flatly inconsistent with PASPA.

If “getting to the point” were an Olympic sport, there’s your gold medalist. From the moment the presiding judge said “Mr. Clement?” to the end of his first sentence of substantive argument: less than 10 seconds.

We can all learn by observing argument done right — we should learn from the mistakes, too.

New opinion — choice-of-law clause governs interpretation of forum-selection clause

Collins v. Mary Kay — civil / employment — affirmance — Restrepo

Law nerds, rejoice! ” This case … poses a layered choice-of-law question: what law governs the interpretation of a forum selection clause in a written agreement when that agreement also contains a choice-of-law clause?” The district court thought the answer was federal common law, and the plaintiffs thought the answer was the state law where they filed the suit, here, New Jersey. Neither was right.

The Third Circuit’s final answer to that question here was that Texas state law applied and that, applying Texas law, the suit belonged in Texas. This resulted in the court affirming dismissal on forum non conveniens grounds.

The reasoning that led to that final answer? Well, it’s damn complicated, or anyway its complicated enough to defy all my efforts at pithy summary here. So I’ll just throw up my hands and say: if you’ve got this issue (a) my condolences, and (b) read the fine opinion.

Joining Restrepo were Chagares and Roth. Arguing counsel were Ravi Sattiraju of the Sattiraju Law Firm for the appellant and Christine Amalfe of Gibbons for the appellee.

UPDATE: Bruce Greenberg has come to the rescue with a characteristically lucid summary in this post on his New Jersey Appellate Law blog.


New opinions — three new opinions, including a housing blockbuster and a big consumer class-action win, both with dissents

Hayes v. Harvey — housing — affirmance — Fisher

In a significant public-housing opinion that I think has a realistic shot at en banc rehearing, a split Third Circuit panel today held that public housing residents have no right to remain in their homes despite statutory language that they “may elect to remain.”

Judge Greenaway’s dissent is blistering. It begins:

The Hayes family has lived at 538B Pine Street for 35 years, and a federal statute provides that they “may elect to remain” in their home. 42 U.S.C. § 1437f(t)(B). They elected to remain in their home. They were model tenants, according to their landlord. And yet, they now will find themselves evicted. The majority has struck their Congressionally provided right from the statute, leaving nothing in its place.

According to the majority, a family “may elect to remain” in their home, but their landlord need not heed that election: he can still evict them without cause. It concludes that tenants’ rights are empty words unless a statute is also expressly phrased in terms of a property owner’s obligation. This renders tenants’ statutory entitlement to choose to remain the most evanescent of rights: good only until the moment it is required. This is not what Congress intended and it is not what Congress enacted.

Indeed, the majority’s interpretation is at odds not only with the statutory text, but with the interpretations of the other two branches of government as well. HUD—the expert agency tasked with administering this statute—has found a right to remain. Every court to interpret this statute, until this litigation, has found a right to remain. There is complete consensus on what this statute means: landlords may not evict enhanced voucher-holders without cause. The majority all but ignores these cases and administrative interpretations, even as it instead battles the strawman of perpetual tenancies that can never be ended—an interpretation that no one advances: not the Hayes family, not HUD, and not other courts. As a result, this Court is left standing alone. I must dissent.

Joining Fisher was Hardiman; Greenaway dissented. Arguing counsel were Rachel Garland of Community Legal Services for the tenants and Susanna Randazzo of Kolber & Randazzo for the landlords.


Cottrell v. Alcon Labs — class action — reversal — Restrepo

A divided Third Circuit panel today revived a consumer class-action suit alleging that prescription eyedrop sellers knowingly designed their dispensers in a way that forced consumers to waste it. Basically, if the drops out of the dropper are too big, the excess just runs down your cheek, and here the drops were allegedly two to three times too big. The district court dismissed on injury-in-fact standing grounds, but today’s panel majority reversed, separately analyzing each component of the injury-in-fact standard. The court split with the Seventh Circuit, so this case clearly isn’t over.

Joining Restrepo was Chagares; Roth dissented, arguing that the majority erodes standing by allowing the plaintiffs to proceed with a speculative injury. Arguing counsel were Leah Nicholls of Public Justice for the consumers and Robyn Bladow of Kirkland and Ellis for the sellers.


In re: Bressman — bankruptcy — affirmance — Roth

The Third Circuit today upheld a district court ruling vacating a prior default judgment due to counsel’s fraud on the court. The court once again came down hard on the lawyer (Max Folkenflik of New York), naming him in the opening sentence of the opinion and throughout.

Joining Roth were Ambro and Jordan. Arguing counsel were Folkenflik for the appellants and Michael Sirota of Cole Shotz for the appellee.




En banc argument day!

Today is the Third Circuit’s fall en banc oral argument sitting. The arguments start momentarily.

Two cases up:

  • US v. Douglas, (panel opinion here) a criminal-sentencing appeal on a interpreting the Sentencing Guidelines “position of trust,” enhancement, and
  • Joyce v. Maersk Line, a labor-law case on whether unearned wages can be modified by a collective bargaining agreement.

UPDATE: audio of the Douglas argument is here, Joyce is here.

New opinion — Third Circuit rules for former governor in malicious-prosecution appeal

Zimmerman v. Corbett — civil — reversal — McKee

A staffer for a PA state legislator was prosecuted for obstructing an investigation into whether Democratic staffers were doing campaign work on state time. After the charges against him were dismissed, he brought a malicious prosecution suit against various defendants, including Tom Corbett (the Republican state AG at the time of the prosecution, and later the governor). The district court denied the defendant’s motion to dismiss, but today the Third Circuit reversed, holding that there was probable cause to prosecute.

Joining McKee were Cowen and Fuentes. Arguing counsel were Joshua Autry of Lavery Faherty for the appellants and Devon Jacob of Mechanicsburg for the appellee.

New opinion — FLSA requires employers to pay workers during short breaks

Secretary, U.S. Dept. of Labor v. American Future Systems — labor — affirmance — McKee

The Third Circuit today held that the Fair Labor Standards Act requires employers to compensate employees for all rest breaks of 20 minutes or less, even if the employer calls the breaks flexible time and allows employees to do as they please. The court also affirmed the district court’s liquidated-damages award based on the employer’s bad faith.

Joining McKee were Rendell and Fuentes. Arguing counsel were former Adams clerk Alfred Putnam Jr. of Drinker Biddle for the employer and Rachel Goldberg for the government.

Civil practice pointer: don’t do this

The Third Circuit issued an unusual non-precedential opinion today. The court affirmed a district court order that dismissed a suit brought by two police officers for failing to comply with Rule 56 of the Federal Rules of Civil Procedure by failing to cite the parts of the record establishing factual disputes.

Said the opinion:

We recognize that our Order affirming this dismissal based solely on Plaintiff’s attorney’s failure to comply with a rudimentary procedural rule extinguishes any meritorious claims Plaintiffs may have had. Plaintiffs’ loss therefore results solely from their attorney’s ineffective representation rather than any defect that may (or may not) have existed in Plaintiffs’ claims.

Nevertheless, our review is limited to the propriety of the District Court’s order dismissing the complaint and granting judgment to Defendants as a matter of law. Since we conclude that the dismissal was appropriate, Plaintiffs’ only possible recovery must come from their attorney’s malpractice insurer, not from any of the Defendants. In order to ensure that Plaintiffs are aware of this potential recourse, we will instruct Plaintiffs’ attorney to share this opinion with his clients and to ask them to send a letter to the Clerk of this Court confirming that they have read this opinion, and that they fully understand their potential recourse.

Probably not the appellate outcome that counsel was hoping for. (His oral argument didn’t go so hot, either. I think the court did the right thing in giving counsel the chance to explain himself, though.)

This is just the latest example of the Third Circuit coming down hard on attorney errors; I discussed other recent instances here.

New opinion — Third Circuit affirms forum non conveniens dismissal

Trotter v. 7R Holdings — maritime — affirmance — Greenaway

The Third Circuit today affirmed a district court’s dismissal of a maritime suit on forum non conveniens grounds. The court sua sponte considered and rejected the argument that a statutory venue provision impacted the forum analysis, “because they are antecedent legal issues that we must resolve before deciding the case as a whole.”

Joining Greenaway were Shwartz and Fuentes. Arguing counsel were Thomas Friedberg of San Diego and Michael Dono of Miami.

New opinion — IDEA plaintiffs who got a hearing can get attorneys’ fees

H.E. v. Walter D. Palmer Leadership Learning Partners Charter School — disability — reversal — Krause

Parents of children with disabilities filed an administrative complaint against a charter school for allegedly failing to meet its obligations under the Individuals with Disabilities Education Act. The administrative hearing officer dismissed their complaint, so the parents sued in federal court, asking the court to vacate the hearing officer’s dismissal and remand for a hearing. The district court did as the plaintiffs asked, but it refused to award them attorneys’ fees as the prevailing party. Today, the Third Circuit reversed, holding that the fee denial was an appealable final order and that the plaintiffs’ purely procedural victory sufficed to entitle them attorneys’ fees under the IDEA.

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

Blogging partner rampages against Third Circuit ruling [updated]

In an extraordinary series of blog posts, apparently intended to persuade the Supreme Court to grant certiorari, a prominent local large-firm partner has described the recent Third Circuit Fosamax decision as “folly,” “pure hogwash,” “very unsound and unwise,” “clearly wrong and clearly pernicious,” “the mess made by the Third Circuit,” “truly bizarre,” “such an obvious, pernicious error,” “ridiculously unjust,” an “abomination,” “especially crazy,” and “even crazier” than another federal-court ruling  that was “based on crazy reasoning.”

The partner also said the ruling “turns on dithering,” “reaches a high-water mark” among “rotten preemption decisions,” and “wrecked the law on preemption.” And, while I’m not certain, I think he even implies that the Third Circuit acted in bad faith: he said the opinion “twisted” precedent and “apparently works doctrinal wonders,” and “the Third Circuit had done its best … to make it impossible to get summary judgment on preemption.”

[UPDATE: The post’s author has sent me a gracious note in which he emphasizes that, while he criticized the Third Circuit’s reasoning, he never meant to accuse the court of bad faith.]


The author of the posts is acclaimed Reed Smith partner and Penn Law lecturer Stephen J. McConnell, and these posts, which appeared on the Drug and Device Law blog (“The definitive source for intelligent commentary on the law that matters for drug and device cases”), are here, here, and here.

[UPDATE: Not only was the Fosamax panel (Fuentes, Chagares, and Restrepo) unanimous, but the court denied the petition for rehearing en banc without recorded dissent.]

Now, I certainly believe that lawyers have a right to speak out against decisions they think are wrong. And, I confess, I’ve criticized a ruling now and again myself.

But, good golly. Is that parade of invective wise? Effective? Appropriate?

Not in my view.

GOP reportedly will stop honoring blue slips [updated: on second thought, no they won’t]

Several sources (Rick Hasen’s Election Law blog post was the first one I saw) this morning report that Republican Senate Majority Leader Mitch McConnell has decided to end blue slips, the practice of allowing home-state Senators to block judicial nominations.

I believe ending blue slips is sound. I believe ending them now, as a tactic for President Trump to fill seats without Democratic input that Republicans blocked President Obama from filling, is deeply unsound.

Be that as it may, it seems likely that nominations for the Third Circuit’s other two openings are on the way.

UPDATE: Vetting Room tweeted: “Take this w/ a grain of salt, noting the source. The majority leader doesn’t control blue slips.”

Zoe Tillman tweets:

McConnell’s office said comments in today’s @FredBarnes story were about McConnell’s “well-known public position” on blue slips”

“McConnell spox via email: We have not made any announcements about a Conference or committee position.”

And when asked about McConnell’s comments, a Grassley spox reiterated that it is up to the Judiciary Committee chair to decide what to do

This is all to say: It does not appear settled, one way or the other, about what will happen as Dems withhold blue slips on Trump nominees

And Vetting Room has this valuable post, titled, “The End of Blue Slips? Two Reasons to Be Skeptical.”
Politico story: “McConnell ratchets up judicial wars–again.”
And, completing the walk-back, Jennifer Bendery reports on Huffington Post, “Mitch McConnell is Keeping the Senate Rule that Lets Dems Block Trump’s Judges.”

“You Be the Judge,” featuring Judge Rendell

On Tuesday, October 17, Third Circuit Judge Marjorie Rendell will be the featured presenter at an event in the Philadelphia area entitled “You Be the Judge.” Here is the event description from its Facebook page:

YOU BE THE JUDGE – Take a free crash course on how our federal judiciary works, and how vital it is to our way of life.

• Hear from special guest, the Honorable Marjorie O. Rendell, Senior Judge on the U.S. 3rd Circuit Court of Appeals as she shares her inside views.
• Play the part of a federal judge on a panel, and discuss and
decide on an important case.
• Discover ways to ensure that lifetime appointments to the
federal bench will be fair, independent, and diverse.

When: Tuesday, October 17, 2017, 6:45 pm to 9:00 pm
Where: Beth Sholom Congregation (the landmark synagogue on 611, designed by Frank Lloyd Wright)
8231 Old York Road, Elkins Park, PA 19027 ⎯ Fischman Auditorium

Light refreshments will be served.

The event is sponsored by the National Council of Jewish Women and co-sponsored by a slew of state and local groups.

Register through the event page or here.

New opinion — Third Circuit reverses movie theater’s ADA win [updated]

McGann v. Cinemark USA — disability — reversal — Restrepo

A blind and deaf man asked a movie theater to provide him with a tactile interpreter so that he could experience a movie there. If you think that sounds silly or contrived, here’s some context:

McGann has experienced movies in theaters for many
years. He enjoys attending movies in person for a number of
reasons; among others, it affords him the opportunity to
participate in discussions about the movies with his friends and
family. Before his wife passed away in 2001, she would
provide him with tactile interpretation during movies in the
theater. Since then, McGann has attended movies at a local
Carmike Cinema. Carmike provided him with tactile
interpretation services for movie presentations at his request.

In November 2014, McGann became interested in
experiencing the movie Gone Girl (Twentieth Century Fox
Film Corp. 2014), after hearing about it from his family and
reading about it online using Braille. After he contacted his
customary Carmike Cinema to inquire about attending a
presentation of the movie, he learned it was no longer playing
there. So he sought another theater in which to experience it.

When the theater refused to provide him with a tactile interpreter, he sued it under the Americans with Disabilities Act. After a bench trial, the district court ruled in the theater’s favor based on its view that movie-theater tactile interpreters were not covered by the ADA. Today, the Third Circuit reversed. Significantly, the court did not reach the theater’s defense that having to provide tactile interpreters would cause it an undue burden, instead remanding that issue for the district court to consider first.

Time to fire up the “Federal judges are activists! Plaintiffs are snowflakes!” internet hate machine? I hope not.

UPDATE: Right on cue, National Review posts, “A Contender for the Silliest Decision of the Year Award.” The author, who says he views the ADA as unconstitutional, laments that “activist judges will keep pushing it further and further.”

Joining Restrepo were Smith and McKee. Arguing counsel were Carol Horowitz of the Disability Rights Network of Pennsylvania for the patron, M. Brett Burns of Hunton & Williams for the theater, and Bonnie Robin-Vargeer for the DOJ as amicus.

Dear Senators: the Third Circuit’s shortage of women judges is a crisis

Dear Senators Booker, Casey, Menendez, and Toomey:

Once Stephanos Bibas is confirmed, the Third Circuit will have 12 active judges: 10 men and 2 women. That gender imbalance is appalling.

Two Third Circuit openings remain — one for Pennsylvania, one for New Jersey. We do need those seats filled, because the court has a crushing case load and we need the court back up to full strength.

We need both of those seats filled by women.

Senators, this is an air-raid-siren crisis. The shortage of women judges on the Third Circuit weakens the court and undercuts its legitimacy. It undermines public confidence in the federal judiciary at a moment in history when that confidence is needed urgently. It weakens our legal system and our democracy.

Nationwide, more than a third of active circuit judges are women. That’s double — double! — the Third Circuit’s proportion. If other circuits can do it, we can too.

We have done it in the past. The Third Circuit has a proud history of service by women on the bench. As recently as 2006, the court had four active judges who were women. But all four have since taken senior status, and from 2000 to 2012 10 Third Circuit seats in a row were filled by men.

Senators, you didn’t cause this problem, but it is a problem you can fix.

Nine of the 22 sitting federal district judges for the District of New Jersey are women. Thirteen of Pennsylvania’s sitting district court judges are women. Our law school faculties and practicing bars are brimming with qualified women who would bring credit to the court.

And this shouldn’t be a partisan issue. Four of President Trump’s 12 pending circuit nominees are women, right in line with the national rate. In the two most conservative circuits in the nation, the Fifth and Eleventh, 40% of the active judges — 10 of 25 — are women. Republicans are just as capable as Democrats of finding outstanding women to fill circuit judgeships.

Confirming women for both of the Third Circuit’s current openings would raise the proportion of women on our court to 4 out of 14, or about 29%. That’d still be below the national average, and way below where we should be. But it would be a meaningful step in the right direction.

The Third Circuit’s gender imbalance is a crisis. Senators, the time to fix it is now.

Respectfully yours,

Matthew Stiegler

“Federal Courthouses in Carribbean Remain Shuttered” [updated]

Kristen Rasmussen has this report, the headline of which is the title of this post, in today’s National Law Journal.

She reports:

Initial damage assessments have begun on the three buildings—located on St. Thomas, St. Croix and in the Puerto Rican capital of San Juan—but the information is not yet validated, according to a spokeswoman for the federal General Services Administration.

“The buildings will be reopened when service is restored and it is safe to do so,” the agency said in an email. “At this time, we cannot predict when we will be able to reopen them.”

Meanwhile, on Monday, the Chief Judge of the District of the Virgin Islands entered this order concerning post-hurricane operations. The order continued all civil and criminal matters and deadlines indefinitely.

And the US Supreme Court also has issued a blanket extension in Virgin Island cases.

UPDATE: the D. V.I. just announced that its St. Thomas division will re-open on Tuesday, October 10. Its St. Croix division remains closed indefinitely.

Quick thoughts on Bibas’s Senate hearing [updated]

Stephanos Bibas’s committee hearing just wrapped up. My overall view is that he acquitted himself well and solidified his prospects for confirmation.

[Update: here’s a link to video of the hearing which I found on How Appealing.]

The Democrats on the committee pressed him mainly on two points: his unsuccessful prosecution as a junior AUSA of a $7 theft case, and his advocacy in an unpublished article for corporal punishment including electric shocks as an alternative to prison.

On the $7 case, I thought he hit it out of the park, concluding, “I made a mistake, I apologized, I learned from it, and I tried to improve the justice system going forward.”

On the electric shocks, Bibas was less deft. His initial response sounded like a flat denial that he’d ever advocated that, pointing to a 2012 book of his. [Referring to his responses starting at 54:27 through 55:15] But then Senator Durbin — not Bibas — raised Bibas’s 2009 unpublished article (which I have never seen) where he’d urged as the default punishment for “the broad middle spectrum” of crimes be “non-disfiguring corporal punishment such as electric shock.” [Starting at 1:00:51] Bibas responded that he now categorically rejects corporal punishment and disavowed his 2009 paper as “a crazy idea.” And, “I realized after discussing it, yes it’s crazy.” While I’m surprised that such a magnificent advocate would leave himself open to Durbin’s haymaker like that, in the end I think Bibas said what he needed to say.

That bobble aside, I thought Bibas’s overall performance was strong and I expect that his confirmation is now just a matter of time.


Other miscellaneous observations from the Bibas hearing:

  • He wore a necktie, not the bow tie he often wears.
  • In introducing his family at the hearing (including some very winning remarks about his kids), he noted that one of his relatives has the same name he does, and that the relative’s writings have been mistaken for his. I hope I didn’t get them confused in my posts here.
  • At one point as Bibas was gesturing he briefly held a black yarn item in his hand. Maybe I’m showing my ignorance here, but I wondered what it was.
  • Senator Cruz mentioned that he had known Bibas for 25 years ago or more because they both competed at college debate events. He joked that back then neither of them would have been thought of as “the cool kids.”
  • In the course of explaining his concern about over-incarceration and its impact on poor and minority communities, Bibas said, “a person is not reducible to his worst act.”
  • Senator Klobuchar asked him if he supports cameras in the courtroom. His response was that he’d be the new guy so he wanted to listen first. He said he thought the Third Circuit was one of the first, if not the first [no] to record and transmit video, but only if all the lawyers [no] and all the judges consent. He noted that “only a few” videos had been released — sounds like Bibas is a Bashman reader too — and said he’d like to know why so few, and whether there had been any blowback from the videos released so far.
  • Bibas noted that the Third Circuit has a reputation for collegiality and for relatively few dissents and concurrences. He said he thought this was healthy, and said he hoped to do his part to maintain that atmosphere of consensus.


News coverage of the hearing by Michael Macagnone for Law360 (paywalled) is here.

And Howard Bashman linked to this post on How Appealing, included a link to video of the hearing, and wrote:

I listened to the testimony of Third Circuit nominee Stephanos Bibas at this morning’s Senate Judiciary Committee hearing (you can view the archived video via this link), and I found him to come across as extraordinarily intelligent, enthusiastic, and thoughtful. He was even considerate enough to speak quickly when answering so that Senators could ask more questions (something that other nominees seem to deliberately avoid).

I for one am really looking forward to seeing him in action at the Third Circuit, occupying the seat that once belonged to the Third Circuit judge for whom I clerked immediately after law school.


New opinion — Third Circuit allows asbestos liability in “bare-metal” maritime suits

In re: Asbestos Prods. Liability Litig. — maritime — partial reversal — Vanaskie

The Third Circuit today held that, under maritime law, a manufacturer of a “bare-metal” product (one sold prior to installation of an asbestos part) may be held liable for asbestos-related injuries under the familiar tort reasonable-foreseeability test.

The court also held that the appellant waived a different theory of liability by raising it in their opening brief only in a footnote asserting that they did not waive it.

Joining Vanaskie were Shwartz and Restrepo. Arguing counsel were Richard Myers of Paul Reich for the appellants and Emily Kennedy of Jones Day for the appellees.

Even more on Bibas

Yesterday I posted some thoughts on Third Circuit nominee Stephanos Bibas as his Senate hearing approaches, the latest of many posts on him here. [UPDATE: the hearing has happened, and I posted my initial thoughts on it here.] If there was a theme to my four comments, I suppose it was ‘liberals, don’t panic.’

Today, one more (last?) overarching thought before the hearing: while we know a staggering amount about Bibas’s views on criminal-justice issues, we know surprisingly little about his views beyond his professional focus.

What we do know about his views on other issues is intriguing, ambiguous, and very far from definitive:

  • He has described himself as a conservative;
  • He grew up in New York City. His father was a Greek immigrant who owned restaurants. Bibas and his wife Juliana have four children. He is a devout Christian who is active in the Orthodox Church. He was “raised Orthodox, but didn’t get serious about it until he was in his late 20s.” His wife has a masters in European History, wrote a novel, and is a prolific (and amazing) blogger.
  • His only political contributions have been to Republicans — Bob Dole in 1996, Mitt Romney in 2012, and Pat Toomey;
  • His closest professional associates appear moderate-to-liberal, especially on gun control
  • His Supreme Court clinic cases have trended liberal;
  • His respectful 2016 remembrance of Justice Scalia for the Heritage Foundation emphasized Scalia’s liberal rulings and noted, “I have given him two cheers, not three, criticizing his formalism as sometimes too rigid and impractical and his originalism as stretching beyond its textual and historical foundations.”
  • A junior professor who worked closely with him wrote a letter in support of his nomination which noted that, no one had been more empathic to her as a gay woman than Bibas and every career conversation they had began and ended with her wife and daughter;
  • The former dean of students at Penn Law wrote in support, “as gay men, my husband and I have always found Stephanos to be warmly supportive of our relationship and marriage. On several occasions Stephanos and I have spoken about evolving LGBT history and issues. These are issues with which he has shown no personal or academic discomfort.”
  • His nomination has been publicly supported by many committed liberals, including David Rudovsky, Barry Scheck, and Akhil Amar;
  • He was chosen through a process reportedly driven by two conservative groups, Federalist Society and Heritage Foundation; and
  • Many committed conservatives have spoken rapturously of his nomination, including Carrie Severino (“fantastic,” “another major victory“), Jonathan Adler (“incredibly strong,”), and Robert George (” a terrific choice“), and a reportedly Koch Brothers-funded group ran ads supporting his nomination.

Such are the tea leaves I’ve found — make of them what you will.


New opinion — Third Circuit upholds rejection of price-fixing suit

Valspar Corp. v. DuPont — antitrust — affirmance — Hardiman

A split Third Circuit panel today affirmed a grant of summary judgment in an antitrust price-fixing case. The majority opinion’s introduction:

This appeal involves an alleged conspiracy to fix prices in the titanium dioxide industry in violation of Section 1 of the Sherman Act. Appellant Valspar, a purchaser of titanium dioxide, claimed Appellee DuPont conspired with other titanium dioxide suppliers to fix prices. Valspar argued that the price-fixing agreement was made manifest primarily by thirtyone parallel price increase announcements issued by the suppliers. DuPont countered that the parallel pricing was not the product of an agreement, but rather the natural consequence of the marketplace. Specifically, DuPont posited that because the market for titanium dioxide is an oligopoly, the price movement was caused by “conscious parallelism”—an economic theory that explains oligopolists will naturally follow a competitor’s price increase in the hopes that each firm’s profits will increase. The District Court agreed with DuPont and granted its motion for summary judgment. We will affirm.

The dissenting judge, interestingly, was a district judge sitting by designation. And he dissented with vigor! He accuses the majority of adopting a “new approach that appears to shut the door on a district court’s ability to accept reasonable inferences in any case involving oligopolists” and that “misses by a mile an essential truth of actual courtroom litigation: that circumstantial evidence is competent, valid, and vital evidence in almost every conspiracy trial, civil or criminal.” Thirty-two pages long.

Joining Hardiman was Krause; dissenting was Stengel EDPA by designation. Arguing counsel were James Lockhart of Minnesota for the appellants, Shari Lahlou of Crowell & Moring for the appellee.

Some thoughts about Bibas as his Senate hearing approaches

The Senate Judiciary Committee holds its hearing on the Third Circuit nomination of Stephanos Bibas on Wednesday. Two significant reports on Bibas have come out in recent days, one by Alliance for Justice and the other by Harsh Voruganti’s Vetting Room blog.

I have four quick thoughts:

First, any Senator who wants to understand Bibas’s judicial philosophy should read his 2013 article Justice Kennedy’s Sixth Amendment Pragmatism. It concludes:

Journalists and academics sometimes mischaracterize Justice Kennedy as
unprincipled because they fail to discern his consistent underlying approach. At
root, Justice Kennedy is not an ideologue, eager to drive a pure theory over a
cliff. He is a seasoned, practical lawyer, one who respects the wisdom of the
bench, bar, and legislatures, not to mention precedent and settled practices. In
interpreting the Sixth Amendment, Justice Kennedy takes care to conserve the
wisdom immanent in the legal craft while reforming its excesses and outliers.
That humble approach is a welcome counterpoint to other Justices’ abstract Sixth
Amendment formalism. His approach lends stability to the law, counterbalancing
others’ zealous theoretical purity with practicality and common sense.

When Bibas slams Scalia’s rigid originalism and praises Kennedy’s humble pragmatism, it seems to me he is sending a clear signal about what sort of judge he will be himself. If I were a Senator, this article is something I’d be eager to explore with him.

Second, I disagree with AFJ’s scathing take on Bibas’s 2015 National Review article on mass incarceration. Where AFJ sees troubling language, I see a refreshing determination to talk about a traditionally liberal issue in ways that will resonate powerfully with a conservative audience.

Third, while I agree with Voruganti’s analysis overall, I think his comparison of Bibas to Richard Posner may obscure more than it illuminates. Yes, both are brilliant, prolific, and independent pragmatists. But Posner is wildly controversial in specific ways that have nothing to do with Bibas. I believe Kennedy is a more apt comparison.

Fourth, it’s telling that none of the people Bibas works with most closely at his Penn Law Supreme Court clinic are firebrand conservatives. One of this clinic assistants clerked for Brennan and Skelly Wright and argued the gun-control side of the Second Amendment landmark McDonald. The other was a Powell clerk who is a leading gun-control advocate. And the outside lawyer he often works with on clinic cases was a Kennedy clerk who is on the board of a lawyers’ civil rights group. This all reinforces my belief that Bibas will work effectively with his Third Circuit colleagues regardless of ideology.

I’m eager to learn more on Wednesday.

Vetting Room blog posts its analysis of Bibas — “Bibas’ most apparent characteristic is his willingness to challenge traditional thought on criminal law and jurisprudence”

Harsh Voruganti, author of the blog Vetting Room, today posted his detailed analysis of Third Circuit nominee Stephanos Bibas. The link is here.

The entire post is essential reading, but this is from the conclusion:

Some may describe Bibas as a solid conservative. His writings demonstrate a deep interest with the moral element of crime and punishment, focusing on a belief that the criminal justice system can and should identify and punish “morally wrong” actors. Furthermore, his aggressive (and politically unwise) prosecution of a popular cashier over $7 in cash makes it easy to caricature Bibas as a modern-day Javert.

At the same time, Bibas’ criticisms of the current criminal justice system are based not only on its failure towards victims, but also towards defendants. His writings show a strong concern with ensuring that defendants receive adequate representation, and that constitutional protections are not limited to the small fraction of defendants who go to trial, but extend to the vast majority who plead their cases. As such, others can argue that Bibas holds more moderate-liberal views.

This combination makes Bibas’ ideology hard to pin down. Rather, Bibas’ most apparent characteristic is his willingness to challenge traditional thought on criminal law and jurisprudence. From demanding the greater involvement of remorse in the sentencing process, to the advocacy of offering prosecutors financial incentives to perform well, Bibas is definitely an outside-the-box thinker.

Probably Voruganti’s most significant conclusion is that Bibas is not an originalist. Voruganti concludes that Bibas is a legal pragmatist, concerned with the practical effect of decisions.

He also writes, “If there is a jurist that Bibas looks likely to model, it is recently-retired Seventh Circuit Judge Richard Posner.”  Voruganti also tweeted, “Stellar credentials, a long academic paper trail, and unorthodox legal views. Is Bibas another Posner in the making?” UPDATE: I see his point but think it’s likely to be misinterpreted (and for that reason I’ve changed the title of this post).

That aside, Voruganti’s conclusions about Bibas converge with mine. I just went back to look at notes I took when I researched Bibas’s record back in June, and here are the conclusions I wrote down: “Long paper trail. Provocative. Impossible to pigeonhole ideologically. Not an originalist?”

Anyway, fascinating stuff. I cannot wait to see what Bibas will have to say about originalism at his hearing Wednesday.


“Columbia nuns vow to appeal after their religious-freedom lawsuit to stop gas pipeline is dismissed”

The title of this post is the headline of this story by Ad Crable today at Lancaster Online. The story, which says the nuns have “attracted worldwide media attention,” begins:

A federal judge in Reading has dismissed a freedom-of-religion lawsuit brought by a Roman Catholic order of nuns near Columbia to try to stop a gas pipeline.

The judge said the court lacked jurisdiction.

The Adorers of the Blood of Christ immediately announced they would appeal the case to the Third Circuit Court of Appeals in Philadelphia.

The Adorers had brought the lawsuit against the Federal Energy Regulatory Commission and the Transcontinental Gas Pipe Line Company in a last-ditch effort to stop the Atlantic Sunrise gas pipeline from running through farmland they own in West Hempfield Township.

They sued under the Religious Freedom Restoration Act.

The nuns maintained that their deeply held belief is that the Earth is God’s creation and that land is a “gift of beauty and sustenance” that should not be used in an “excessive and harmful way.”

Sounds like a Hail Mary appeal to me.

“With blue slip, Bob Casey gives green light to Trump judicial nominee”

Jonathan Tamari has this story — its headline is the title of this post — on today about the Third Circuit nomination of Stephanos Bibas. (The story it seems not to be in the Philadelphia Inquirer’s paper edition.)

Tamari predicts that Bibas’s confirmation now is “likely,” and he has this upbeat quote:

“What this shows is when the White House and Republicans cooperate with Democrats, things can happen,” said Carl Tobias, a law professor at the University of Richmond who tracks judicial nominations.

But all is not peace and love just yet:

Casey still plans to wield the blue-slip power. He has told the White House that he will withhold his signature on the slip to effectively block David Porter if the conservative lawyer is nominated for a judicial post, according to a person familiar with Casey’s actions. Porter was under consideration in 2014, but his candidacy was scuttled after an outcry from liberal groups.

In other Bibas nomination news yesterday, law professor Eugene Volokh posted his support at Volokh Conspiracy:

Going back a few months, Orin Kerr beat me to endorsing University of Pennsylvania Law School professor Stephanos Bibas, who was nominated to the U.S. Court of Appeals for the 3rd Circuit, and he can speak especially well about Bibas, who works in one of Kerr’s fields (criminal procedure). But I, too, know Bibas well and think very highly of him and his work; he’s one of the top criminal procedure scholars in the country.


New opinion — Third Circuit holds that bankruptcy trustees enjoy qualified immunity

In re J & S Properties — bankruptcy — affirmance — Hardiman

After a bankruptcy trustee seized a rental property owned by the debtor, the tenant sued to regain possession of the property. The district court held that the trustee had qualified immunity from the suit, and today the Third Circuit affirmed:

The question presented is whether qualified immunity applies to discretionary actions taken by a trustee to preserve the bankruptcy estate’s assets, and whether that immunity protects Trustee Swope’s conduct in this case. We will affirm because Swope exercised reasonable care under the circumstances and did not violate clearly established law.

A sharp reader points out to me that the opinion says it reviews factual findings for clear error. In Semcrude — also a bankruptcy case involving an appeal from a grant of summary judgment — the court applied plenary review and cited a prior case rejecting any application of the clear-error standard to a bankruptcy court’s summary-judgment ruling. Other circuits recently have done the same. On a first read, I’m not sure the opinion actually applied clear-error review to any factual finding, but still this strikes me as a point likely to sow confusion that the court may want to clarify.

Joining Hardiman was Roth; Fisher concurred in the judgment, arguing that the qualified immunity defense was not preserved because it was not raised in bankruptcy court but that affirmance is still warranted based on quasi-judicial immunity. Arguing counsel were Mary Sheats of Frank Gale for the appellant and Andrew Sperl of Duane Morris for the appellee.

Court pushes back Virgin Islands deadlines [updated with new guidance on notices of appeal and SCVI status]

The Third Circuit has extended deadlines for Virgin Island cases again in light of the recent hurricane devastation. The court’s announcement:

Updated Notice Regarding Deadlines in Virgin Islands Cases

Deadlines for non-emergency filings in Virgin Islands cases are further extended to Friday, October 20, 2017. Counsel in emergency or expedited cases should contact the Clerk’s Office as soon as possible regarding scheduling.
UPDATE: new announcement on September 29:
Deadlines for non-emergency filings in Virgin Islands cases are further extended to Friday, October 20, 2017. Counsel in emergency or expedited cases should contact the Clerk’s Office as soon as possible regarding scheduling. Notices of appeal must be filed in the district court. A district court may enter an order or make an announcement regarding the inaccessibility of a district clerk’s office that would impact the computation of time for filing notices of appeal. Fed. R. App. P. 26(a)(3). Motions for extension of time to file a notice of appeal must be made in the district court. Fed. R. App. P. 4.
UPDATE2: also on September 29 the Virgin Island courts (i.e. the equivalent of state courts) issued this announcement regarding deadline extensions and court operations.

Supreme Court agrees to review Third Circuit appealability case

This morning the Supreme Court also granted certiorari to review a Third Circuit case, Hall v. Hall. Scotusblog describes the issue as “Whether the clarity Gelboim v. Bank of America gave to multidistrict cases should be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case.” The Scotusblog case page with links to the cert papers is here, the Supreme Court docket is here.

The Third Circuit opinion is here. It was authored by Judge Jordan and joined by Judges Chagares and Hardiman. The opinion was non-precedential and the question upon which the Supreme Court just granted certiorari was dispensed with in a two-sentence footnote.

Counsel for the successful petitioner is Andrew Simpson of St. Croix, USVI. Simpson is the president-elect of the Third Circuit Bar Association, and just this week he was featured on this blog describing the hurricane devastation there. So I imagine persuading the Supreme Court to hear his case is singularly well-timed good news.

Congratulations Andy!

(Thanks to David Fine for flagging this for me.)

Supreme Court agrees to hear a Bibas case

This morning the Supreme Court granted certiorari in Encino Motorcars v. Navarro, an employee-overtime-pay case. Counsel of record for the petitioners is Paul Clement.

Counsel of record for the respondents? Stephanos Bibas.

The order list with the cert grant is here, the Encino Motorcars case page on the Supreme Court website is here, Scotusblog’s case page is here with the BIO here.

(Thanks to Howard Bashman for pointing this out.)

Liberal group criticizes Bibas but does not come out against his nomination

The liberal-leaning Alliance for Justice today released a report detailing its concerns about Third Circuit nominee Stephanos Bibas.

The report does not take the position that Bibas should not be confirmed. That strikes me as a significant departure from AFJ’s other similar reports — David Stras, Allison Eid, Amy Coney Barrett — all opposing those nominations. Instead, AFJ’s Bibas report just identifies “troubling” statements and urges Senators to scrutinize him carefully.

The report twice cites posts from this blog.

Here’s my two cents. I’m still eager to see the Vetting Room‘s take on Bibas. He’s a nominee with a massive paper trail, and only time will tell whether anyone comes up with anything fatal. But, on a first read, I see nothing in AFJ’s report that strikes me as likely to threaten his confirmation, and I see AFJ’s decision not to come out against the nomination as telling. So I see this report as reason to be more confident Bibas will be confirmed, not less.

Professor Douglas Berman posted about the report on his widely read Sentencing Law and Policy blog, here. Berman wrote:

For a host or reasons, I am disinclined to engage with the particulars of the AFJ report. But I am inclined to predict that Prof Bibas, based on his past criminal justice work and writings, will be much more inclined to respect criminal defendants’ rights than many other past and future judicial nominees.

Update: criminal law professor Carissa Hessick criticizes the AFJ report in this Twitter thread.



New opinion — Third Circuit makes it easier for some innocent prisoners to get back into court

Satterfield v. District Attorney — habeas corpus — reversal — Vanaskie

The Third Circuit issued an important habeas corpus opinion today that makes it a bit less difficult for prisoners who assert their innocence to get back in court and have their claims heard on the merits.

In 2013, the Supreme Court held that, when habeas petitioners make a strong enough showing of actual innocence, courts will reach the merits of their petitions that otherwise would be dismissed because they were filed too late. The question in today’s case was, what about petitioners who lost before 2013? If they lost on statute-of-limitations grounds then, and they have enough evidence of their innocence, do they get to reopen their case? Or, in habeas-speak, can McQuiggan support a Rule 60(b) motion?

Today, the court ruled in favor of the petitioner, holding that the district court erred when it ruled that 60(b) wasn’t available for petitioners invoking McQuiggan to get relief from a prior ruling that their petition was time-barred. The opinion emphasized that ” The principles underlying the Supreme Court’s decision in McQuiggin are fundamental to our system of government” and important to the 60(b) analysis. Conversely, the opinion observed that finality and comity ” must yield to the fundamental right not to be wrongfully convicted” and thus get ” less weight … when a petitioner asserts a threshold claim of actual innocence.”

Joining Vanaskie were Ambro and Restrepo. Arguing counsel were Aren Adjoian of the EDPA federal defender for the petitioner and Simran Dhillon of the Philadelphia DA for the Commonwealth.

Local Third Circuit lawyer shares a first-hand account of Virgin Islands hurricane damage (updated)

The Third Circuit covers not just Pennsylvania, New Jersey, and Delaware, but also the U.S. Virgin Islands. There are two federal district courthouses in the Virgin Islands, on St. Thomas and St. Croix, and every year the Third Circuit has sittings there. So when the Virgin Islands are hammered by two category 5 hurricanes in two weeks, it’s a Third Circuit story, too.

Both D. V.I. federal courthouses are closed “until further notice,” according to the federal courts’ website. National Law Journal reported after Irma and before Maria that the St. Thomas courthouse was damaged by water. This vivid September 20 local report describes the post-Maria devastation on St. Croix and notes, “A solar energy field at the District court of the Virgin Islands in Golden Rock was laid to waste.”

UPDATE: on September 28, the D. V.I. clerk’s office announced that the court remains closed in both divisions until further notice but that court personal are available by phone.

A post-hurricane image of the federal courthouse in St. Croix (on right with red roof) and the courthouse’s solar-panel field (left). Screenshot from NOAA website, original image here.

This New York Times story reports that St. Thomas “took a beating” from Irma and St. Croix “was pummeled” by Maria, and the USVI governor is quoted to say, “It’s going to be a long road to recovery. We have to prepare ourselves mentally, manage our expectations realistically and we will get through it.”

Andrew Simpson, center, in happier times at the 2017 Third Circuit conference. Also pictured are Howard Bashman, left, and me, right.

The president-elect of the Third Circuit Bar Association is Andrew Simpson, who lives and practices on St. Croix. Today he emailed me this first-hand account (lightly edited, emphasis added) of the situation on the ground:

I’m not so sure that the court came through Maria fine [he’s responding to an earlier report that the federal courts there came through both hurricanes fine]

I’m fine, as are all of my staff members and their families.  Amazingly, I have high speed internet and my phone service at my office. I had minor water damage (wet carpets).  I still don’t have power here, but can run off my generator (which will not power the A/C and it is 87 degrees in here right now.

The solar farm that provided power to the District Court building on St. Croix was destroyed. It’s been described as a mangled mess. We have not had a single ECF message from the court since before Maria passed (so I doubt that it came through “fine”).  [A few minutes later he emailed again to say he’d just received his first post-Maria ECF notice.] The Supreme Court of the Virgin Islands also has not put out an electronic message since Sept. 18.

Since I have high speed internet access, I’ve set up a free wifi hotspot for the public here. I know that Magistrate Judge Cannon’s permanent law clerk is planning on using it today, so, again, I doubt that the court is fine. Members of the bar on St. Croix that I know are OK (mostly because they have come to use my free wifi hotspot in the last couple of days)

  • Myself and my associates, Emily Shoup and Howard Phillips
  • Pam Colon
  • Doug Capdeville
  • Rick Hunter
  • Mike Sanford and his associates
  • Carl Beckstedt and his associate Mike Rogers

Most law offices that I have seen in Christiansted appear to be relatively OK. I’ve seen a broken window or two on some of the offices, but no major structural damage. Power in Christiansted is rapidly being restored. All offices that were served by an underground feeder should have power in the next day or so. The lineman working on my street says that I should have power next week (I am not served by an underground feeder, unfortunately).

We are under a curfew that allows us out of our homes from noon to four pm only. That is expected to last at least through the end of this week before it is expanded slightly.

Note that the Third Circuit home page indicates that deadlines for us have been extended until September 29 only. That definitely needs to be extended as we can’t get into our offices to work for any length of time (we need to use the curfew as “hunters and gatherers” to secure food, gas, etc. in those precious four hours) and even if we can get to our offices, most still do not have power, phone or internet. And, many of us are focused on damage at our homes during the hours when we are confined there (again, I have been fortunate and suffered only minor damage but have already logged a good 30-40 hours clearing away brush from my house).

I will update this post as I learn more.

New opinions, including a hot-button voting case with some harsh words for the appellant

American Civil Rights Union v. Philadelphia City Commissioners — civil / voting — affirmance — McKee

Back in May I posted here about a Third Circuit oral argument that got off to a bad start when the lawyer raised his voice in an unsuccessful attempt to talk over one of the judges. (You’d expect a former law school dean and Scotus clerk to know better.)

Interrupting a judge, it turns out, was not the path to victory. Today, the Third Circuit affirmed a district court’s rejection of a conservative group’s challenge to Philadelphia’s alleged failure to remove persons convicted of a felony from its voter rolls.

And it turns out interrupting a judge was the least of counsel’s advocacy missteps. The opinion tartly observed that one of the appellant’s arguments “not only mangles the statute beyond recognition, it also misrepresents the non-precedential case it relies on.” Later: “This is exactly the kind of statutory contortion that led the District Court to … threaten[] to impose sanctions for blatant misrepresentation of the statute.” Pow.

Joining McKee were Vanaskie and Rendell. Arguing counsel were John Eastman of the Center for Constitutional Jurisprudence for the appellant and Kelly Diffily for the city.


Alimbaev v. AG — immigration — reversal — Krause

Here’s a fascinating introduction:

This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ’s factfinding in this case—an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ’s finding that Petitioner’s testimony was credible, we will grant the petition for review of the BIA’s removal order, vacate the denial of Petitioner’s applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.

The opinion features a significant discussion of clear-error review by the Board of Immigration Appeals and how it applies to immigration judges’ credibility findings. The opinion emphasized the Third Circuit’s obligation to “carefully” scrutinize the BIA’s application of clear-error review in accepting or rejecting IJ factfinding.

Joining Krause were Jordan and Stearns D.Mass by designation. Arguing counsel were Lawrence Rudnick of Rudnick Immigration Group for the petitioner and Daniel Smulow for the government.


Christopher Columbus LLC v. Bocchino — admiralty — reversal — Stengel EDPA

Precedential opinions by judges sitting by designation in the Third Circuit are pretty unusual. It’s also fairly uncommon for district judges to sit by designation over CA3 appeals from their own district — reviewing a colleague’s work, that is. But both occurred here.

Also unusual? An appeal that “arise[s] out of a drunken brawl which erupted among passengers who were enjoying a cruise.” The issue on appeal was whether the dispute fell under maritime jurisdiction, and the court held that it did and vacated the district court’s dismissal.

Joining Stengel EDPA by designation were Hardiman and Krause. Arguing counsel were Daniel Wooster of Palmer Biezup for the appellant and Stanley Gruber of Freedman & Lorry for the appellee.

Bibas featured in provocative new article on plea bargaining

Third Circuit nominee Stephanos Bibas figures prominently in a harsh new look at plea bargaining in this month’s issue of The Atlantic. The article is “Innocence is Irrelevant,” by Emily Yoffe, link here.

Bibas is quoted describing the criminal-justice system as a “capacious, onerous machinery that sweeps everyone in.” And this:

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” Bibas said to me.

Am I the only one who can’t wait for his Senate Judiciary hearing?

Casey reportedly submits blue slip for Bibas nomination [updated]

Philadelphia Inquirer reporter Jonathan Tamari posted the following on Twitter yesterday afternoon:

Judicial news: has returned blue slip on 3d District nominee Stephanos Bibas, clearing way for hearings. 1 of few Ds to do so

He meant Third Circuit. He added:

BUT, Casey has also told Trump admin he’d use blue slip to block atty David Porter if he’s nominated.

The overview of the Third Circuit nominations picture that I posted last month is here.

UPDATE: Orin Kerr just posted the news on Volokh Conspiracy, here.

UPDATE2: The first tweet is wrong about Casey being one of “few” Democratic senators to return a blue slip on a Trump circuit nominee. I’m informed by Glenn Sugameli of Judging the Environment and Lena Zwarensteyn of American Constitution Society that Casey is the 7th to do so, against only 3 who’ve withheld blue slips.



Two notable unpublished opinions

I don’t normally blog about the Third Circuit’s non-precedential opinions, but the court issued two noteworthy ones today.

First, in Smith v. Lindemann the court enforced an arbitration clause in a lawyer’s representation agreement to compel arbitration of a legal malpractice suit. Even if state law barred lawyers from including arbitration clauses in their retainer agreements, such a law would be preempted by federal law. Ugh.

Second, in Pirela v. Commonwealth a divided panel affirmed in a pre-AEDPA habeas corpus case involving jury waiver and ineffective assistance of counsel. Judge Restrepo dissented (I’m not certain, but I think this might be his first panel dissent since joining the court), arguing that the court should have instead remanded for an evidentiary hearing on the waiver claim.

UPDATE — Writes Peter Goldberger:

Judge Restrepo’s separate opinion “concurring in the judgment” concerning cell site location information, in US v Stimler, 864 F.3d 253, is functionally a dissent. Conc in jmt because of binding circuit precedent; issue is pending on the merits before the Supreme Court, so the separate opinion also functions as a SCOTUS amicus brief.

New opinion — student-athletes showing concussion signs have a right to be protected

Mann v. Palmerton Area School Dist. — civil rights — affirmance — Vanaskie

Sheldon Mann, a 17-year-old student who played high school football, suffered a hard hit during a team practice. One of his teammates said it was one of the bigger hits he’d ever seen, another said Sheldon seemed dizzy and was stumbling around the field. But the coach at the time (he’s still the coach) “claim[ed] he did not see the hit,” asked Sheldon if he was all right and then told him to continue practicing. Not long after, Sheldon sustained a second big hit. This time he was removed, but it was too late: he suffered a traumatic brain injury.

Sheldon’s parents sued, alleging that the coach violated Sheldon’s constitutional right to bodily integrity by telling him to stay in after the first hit and that the school district failed to train the coach and protect the player. The district court granted summary judgment in favor of the defendants, and today the Third Circuit affirmed.

The Third Circuit held that a student-athlete at a state school who is showing signs of a concussion has a constitutional right to be protected from further violent hits. This is a major ruling that I expect to have national significance. But the court went to hold that this right was not clearly established at the time of Sheldon’s injury in 2011. The court also denied the Monell failure-to-train claim because there was no evidence of a pattern of recurring head injuries in that school’s football program, nor that the coaching staff acted deliberately.

Joining Vanaskie were McKee and Rendell. Arguing counsel were Howard Bashman for the parents and Thomas Specht of Marshall Dennehey for the coach and the district.

UPDATE: coverage by Matt Miller on Pennlive here.


New opinion — Third Circuit narrows overtime-pay protection

Souryavong v. Lackawanna County — civil — affirmance — Vanaskie

The introduction:

This employee-overtime appeal raises questions as to the nature of the evidence that is sufficient to create a jury question on the purported “willfulness” of an employer’s nonpayment of overtime. The question matters because a finding of willfulness expands the limitations period for claims under the Fair Labor Standards Act (“FLSA”), in effect permitting a plaintiff to receive a larger award. Here only the willfulness question was contested—Appellee Lackawanna County conceded the basic overtime violations—and at trial Appellants Michael Souryavong and Nelson Rolon presented some evidence on the question but not enough to avoid a directed verdict in the County’s favor. We find no error in the District Court’s decision because the evidence presented did not suggest the County was subjectively aware of the FLSA problem at the time of the violations, at least with respect to Souryavong and Rolon. Additionally, Souryavong and Rolon challenge the District Court’s calculation of attorney’s fees, but we find that decision appropriate as well. We will affirm.

On the willfulness issue, the opinion also affirmed for two alternative reasons. First, it said that “an FLSA violation [a willful one, I believe the opinion means] must have a degree of egregiousness” lacking in this case. Second, it said that a “willful violation” requires evidence that the employer knew it was violating the FLSA specifically — awareness of “wage and hour issues” caused by its widespread non-payment of overtime for work over 40 hours and acknowledgement that the employees could file a grievance for back overtime wasn’t enough.

Both alternative rationales, but especially the second, strike me as significant new retreats from the statute’s language.

Joining Vanaskie were Ambro and Restrepo. Arguing counsel were Cynthia Pollick of the Employment Law Firm for the employees and Harry Coleman for the county.

Now hiring: Clerk of Court

The Third Circuit is hiring a new Clerk of Court. The job announcement is here. Marcia Waldron has been the Third Circuit Clerk for longer than I’ve been a lawyer.

The announcement gives a helpful picture of what the court clerk does:

The United States Court of Appeals for the Third Circuit, which serves more than 22 million people in Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands, seeks a dedicated and experienced administrator to be the Clerk of Court. The Clerk of Court supports the judges of the Court of Appeals by overseeing and leading the Court’s extensive administrative and operational functions. The Clerk also assists in resolving complex and sensitive issues having a significant impact on the day-to-day functioning of the Court. The Clerk reports directly to the Chief Judge of the Court of Appeals and communicates regularly with Circuit Judges and Clerk’s office staff; other court executive units; the Administrative Office of the U.S. Courts; the Federal Judicial Center; bar associations; and the media. Travel and public speaking are part of the work of the Clerk.


The Clerk of the Court of Appeals is a statutory position, appointment to which is by the Court. The responsibilities of the position, under the supervision of the Court, include but are not limited to the following:

  • Conduct of the business of the Court, including case management, manual and electronic records maintenance, statistical reporting, special studies, and opinion publication and circulation.

  • Management of a 43-person Clerk’s Office staff, including hiring, supervision,training, and promotion of employees.

  • Establishment and continuing maintenance of relationships with the district courts of the Circuit and with the practicing bar and governmental agencies having business before the Court.

  • Working with members of the bar and the public to improve the delivery of Court services.

  • As delegated by the Court, under local rules, disposition of motions filed in cases before the Court.

  • Interpretation of the Federal Rules of Appellate Procedure and the Rules of the Court and explanation of same to counsel, as well as implementation thereof.

  • As requested, consultation with and recommendation to the Court on all matters affecting the orderly and expeditious directing of the Court’s business including, but not limited to, consultation regarding federal statutes and regulations and Administrative Office directives, policies and procedures.

  • Participation in the process of planning the annual Court budget and forecasting personnel needs.

Pittsburgh newspaper urges Third Circuit to rehear McMunn radiation case

The Pittsburgh Tribune-Review has this staff editorial urging the Third Circuit to hear its ruling last month in McMunn v. Babcock & Wilcox Power. It says:

We hope the Third Circuit Court of Appeals will reconsider its decision to dismiss claims that a former nuclear plant in Apollo contributed to cancers among residents there. Of particular concern is that the ruling, as it stands, would virtually eliminate any chance for similar future claims against any other such plant because the victims of cancer didn’t “prove” their illnesses could be traced to emissions from the plant. “Proof” should be a matter for a trial and a jury, not a pre-trial review.

On Sunday the same paper ran this compelling story on the case by Mary Ann Thomas, headlined, “Apollo area residents involved in failed NUMEC nuke suit hope federal judges reconsider.” The story quotes Duquesne law professor Steven Baicker-McKee rightly observing that rehearing petitions are “always a heavy lift.”

I believe the odds of rehearing being granted here are quite remote (even more than usual), but the editorial and story do underscore Judge McKee’s concurring observation “stress[ing] that the law in this area is simply inadequate.”

Posner’s new book is bananas, but you might want it anyway

No doubt you’ve heard that legendary Seventh Circuit Judge Richard Posner abruptly retired earlier this month. Likely you’ve also heard that he just released a sensational new book recounting the conflict over his court’s handling of pro se appeals that he says led to his retirement. Posner is famously irreverent, and I suspect many look forward to watching the fists fly.

I got a copy of Posner’s book over the weekend, and I’ve read most of it and skimmed the rest. It’s called Reforming the Federal Judiciary, and subtitled My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments. He self-published it through Amazon, you can buy it here for the low-low price of $11.99.

Let’s start with the positive:

  • There’s a kernel of bracing Posnerian brilliance here. Blazing a spotlight on the separate-but-equal appellate review that pro litigants receive is vitally important. Hardly anyone understands how pro se appeals are handled by the federal courts — that is, how differently than appeals by litigants wealthy enough to hire lawyers. And hardly anyone cares. Posner is on to something big here.
  • There’s a decent amount of raw information here about what staff attorneys’ offices do in different circuits. For the Third Circuit, there’s 20 pages of survey answers by current staff attorneys detailing who they are and what they do. There’s some useful information there for appellate practitioners. There also is detailed information on the Fifth and Seventh Circuit SAOs, and a spreadsheet with data on most of the others.
  • Third Circuit fans will note with satisfaction that our staff attorneys’ office is held up by Posner as one of the offices that’s doing it right, or at least better.

So much for the happy part. Posner has made a terrible mistake in publishing this book. It is batshit crazy.

At its heart, this book is a baffling, disjointed blow-by-blow of Posner’s many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.

The primary battle arose from Posner’s demand that he be allowed to re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it “uncontroversial” and he was “surprised” when it was met with first silence, then uniform rejection. When Wood told him so, Posner “angrily” threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything — memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.

And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because “uniquely among this court’s judges, [he had] a deeply felt commitment to the welfare of the pro se litigants.” But, by his own account, he only “became interested in the staff attorney program in the late winter/early spring of this year (2017).” And in his preceding three and a half decades on the court, “I’m pretty sure I’d never even discussed it with another judge.” Deeply? Uniquely?

It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se’s and televising arguments, when this case has nothing to do with either? Because “I’ve decided to note two recent clashes with colleagues.” This is not Posner-being-Posner, this is madness.

The other “clash” he chooses to recount is when he emailed all the judges on the court to tell them he thought it odd that some judges referred to Wood as “Chief Diane.” He admits this one “doesn’t reflect credit on me” and, “In retrospect, I cannot understand what moved me to email the judges ….” Me neither.

While bad judgment is the real issue and there are dozens more examples available, there also are embarrassing errors. An appendix with another judge’s writing tips (?) repeats itself at length. The index lists Third Circuit Chief Judge D. Brooks Smith, but actually the judge referred to all but once is EDVa Chief District Judge Rebecca Smith. One passage starts out as narrative text but ends up as a quoted email. It all reinforces the sense that this book was a lonely endeavor.

Posner’s enemies will be chortling, but, for his many admirers, it’s just sad.



UPDATE: here is a powerful response to Posner’s book, written by a former Seventh Circuit staff attorney (and current DOJ antitrust lawyer) and posted on October 5 on Volokh Conspiracy.

New opinion — Third Circuit upholds rejection of radiation victim’s suit

Estate of Ware v. Hospital of the Univ. of Penn. — civil — affirmance — Ambro

Judge Ambro is a national treasure, and here is the conclusion to his opinion today:

The facts of Boyer’s action are tragic: her husband, a 47-year-old researcher whose life’s work was studying the effects of radiation on biological organisms, died from a rare form of brain cancer. But as often happens in the law, this case provides us little opportunity to contemplate Ware’s suffering from his illness or his family’s suffering from his loss. Instead, our review is confined to bloodless questions of statutory interpretation and appropriate management of litigation. On these issues we find no fault with the District Court’s holdings. The Price-Anderson Act governed Boyer’s negligence claims, and the Court did not abuse its discretion in denying her request to withdraw those claims and to remand her others. We thus affirm its judgment.

Joining Ambro were Restrepo and Cowen. Arguing counsel were Aaron Freiwald of Layser & Freiwald (nice website!) for the plaintiff and Donald Jose of Jose & Associates and Theresa Sachs of Marshall Dennehey for the university.

A new ERISA opinion

Dowling v. Pension Plan for Salaried Employees of Union Pacific — ERISA — affirmance — Vanaskie

“Retirement plans,” today’s opinion begins, “can be complex documents … with numerous peculiarities,” and who would disagree? The litigation arising from disputes over those plans can be complex and peculiar too. Today, a divided Third Circuit panel affirmed a district court ruling in favor of the employer, emphasizing the deference courts owe to plan administrators.

Joining Vanaskie was Hardiman; Ambro cogently dissented, describing the majority’s reasoning as “imaginative,” “innovative,” and “dubious.” Arguing counsel were Kelly Watkins of Norris McLaughlin for the employee and David Fryman of Ballard Spahr for the employer.

A federal judge is suing Judge Scirica

Third Circuit Judge Anthony Scirica is a defendant in a mind-blowing federal lawsuit recently filed by an Ohio federal judge.

After federal district judge John R. Adams (N.D. Ohio) issued a show-cause contempt order against a magistrate judge who hadn’t met his deadline (!), four of his fellow judges filed a judicial misconduct complaint against him, and the Sixth Circuit Judicial Council reprimanded him and ordered him to undergo a mental health examination.

Represented by a conservative activist group, Adams then petitioned for review by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, which is chaired by Scirica. The Committee upheld the reprimand and the examination order. (Thorough local news coverage, here and here, describes Adams’ history of confrontations and quoting Adams himself.)

[I first learned about his through a post today on Howard Bashman’s How Appealing.]

The never-boring Judge Richard Kopf blogged that Adams had been “a jerk” and “should be ashamed of himself,” although Kopf was of two minds on whether the examination order was justified.

Now, Scirica has been sued in his capacity as Committee chair by Adams (along with the Committee, the Sixth Circuit council, and the council’s chair) in the District of D.C., alleging a slew of constitutional violations including “constructive impeachment.” The complaint is here.

Adams has no business on the federal bench. I just feel bad for Judge Scirica that’s he’s been dragged into this demeaning spectacle.


New opinion — criminal sentences can’t include job restrictions that last longer than supervised-release maximum

US v. Poulson — criminal — partial reversal — Rendell

The Third Circuit today reversed under plain error a criminal sentence that barred the defendant from working in real estate for longer than he was subject to supervised release:

he District Court was *** only authorized to impose a maximum term of three years’ supervised release on Poulson. Because the District Court imposed, as a term of supervised release, an occupational restriction lasting five years, this part of Poulson’s sentence amounted to plain error.

The court rejected the defendant’s challenge to the sentencing court’s Guidelines finding on the number of the defendant’s fraud victims who suffered a substantial financial hardship.

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

Advice for appellate lawyers doing their first Third Circuit case

If you’re an experienced appeals practitioner with little or no Third Circuit experience, and now you’ve got a Third Circuit appeal, this post is for you. You’ll likely find that Third Circuit practice holds no huge surprises, but every court has its own rules, practices, and norms.

If you’ve done your share of appeals but you’re new to the Third Circuit, here are nine things you should know:

  1. Don’t count on getting oral argument. The Third Circuit holds the fewest oral arguments of any federal circuit in the country — 20% fewer in 2016 than the next lowest circuit. The Second Circuit holds argument in almost a third of its cases, the DC Circuit in almost half, but the Third Circuit grants argument less than 10% of the time. Unless your case is extraordinary, you’d be foolish to bank on the court granting oral argument, so if you’ve got something to say, say it in your brief(s).
  2. You’ll find out who’s on your panel after the briefs are submitted and roughly two weeks before oral argument or submission on the briefs. The three panel judges are identified in the letter from the clerk you receive on ECF, captioned either “Submit Notice” or “Argue Notification,” notifying you whether the panel granted argument (a decision made by the judges not staff counsel and made after briefing).
  3. Don’t be confused by the letter you get from the clerk (also after the briefs are in, but before the letter in #2, this one ECF-captioned “Calendared_Merits”) asking if you’re available for argument on a particular date. This letter is sent out by the clerk automatically, meaning it does not imply that the court will grant oral argument in your case.
  4. The Third Circuit is an emphatically centrist court. Different folks would draw these lines in different places, but it wouldn’t be crazy to classify the active Third Circuit judges as 1 liberal, 2 conservatives, and 8 moderates. (Here’s one perspective.) So if your case is ideologically charged, know that the deciding vote on your panel will quite likely be a centrist.
  5. Steer well clear of attacks on the court below or the other side. This is true in most any appellate court, but especially so here. The Third Circuit’s patience for sniping and insinuations of bad faith is low. Your devastating verbal jabs are way more dangerous to you than your intended target.
  6. Follow all the rules. The court has come down hard recently on lawyers who didn’t, including lawyers with little Third Circuit experience. Howard Bashman has warned that these cases “may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.” (Links to the federal appellate rules and the local rules are on Third Circuit’s website and also on the sidebar of this blog.)
  7. The court has standing orders discouraging requests for extensions of time or brief-length, and they mean it.
  8. If you do get oral argument, be aware of two ways the Third Circuit differs from other circuits. First, the court can be loosey-goosey with argument time limits. Don’t be shocked if the panel keeps peppering you with questions long after your red light went on. Second, the court now posts video of a few arguments on its website, which you may find helpful for getting a feel for what to expect beforehand, or impressing your mother afterwards.
  9. For more comprehensive coverage of circuit practice, there’s a Third Circuit practice manual that was just updated this year. There’s also a shorter (and free) online practice guide put out by the circuit bar association. Both are outstanding. And of course the circuit clerk’s office is indispensable.

Last thought: consider consulting with a lawyer who practices in the Third Circuit regularly. One place to start is the circuit bar association’s board. I’m on it, and I consult a lot with lawyers doing Third Circuit appeals, but others do too. Whether you need to figure out procedure, understand the court’s dynamics, or moot your argument, sometimes there’s no substitute for local expertise.



Here’s how to pronounce judges’ last names that sometimes get mangled:

  • Chagares — shuh GARR iss (rhymes with ‘the Harris,’ not ‘the Norris’)
  • Vanaskie — vuh NASS key
  • Scirica — suh RICK uh
  • Cowen — first syllable rhymes with ‘now,’ not ‘go’
  • Nygaard — NYE gard (first syllable rhymes with ‘hi’)





Why is the Philadelphia media ignoring the Bibas nomination?

Back in June, President Donald Trump nominated Stephanos Bibas to the Third Circuit.

But today, 86 days later, the Philadelphia Inquirer still hasn’t said a thing about it. Nor has the Daily News. Nor has Nor has What gives?

When President Barack Obama nominated Pittsburgh-area federal prosecutor Rebecca Haywood to the Third Circuit, the Pittsburgh Tribune-Review ran a detailed profile the same day, and the Pittsburgh Post-Gazette also ran a story the same day. The Inquirer had a story of its own, here.

When Obama nominated Judge Restrepo, the Inquirer had extensive coverage, starting with a substantial story posted the day of the nomination.

Is Trump’s first Third Circuit nomination — a hometown professor who’s taken some provocative public positions on big issues — not newsworthy?


New Harrisburg courthouse tops federal judiciary’s building priorities

The Judicial Conference today announced its 2017 courthouse-construction priorities, and a new MDPA courthouse in Harrisburg PA sits at the top of the list. The announcement is here, the list is here, an overview of the Harrisburg project is here, and the inadequacies of the current courthouse are described here.

According to the list, the Harrisburg new courthouse project is in the “concept design” stage, with the site partially acquired and over $50 million (about a quarter of the total budget) already spent. A 2016 local news story reports that the courthouse will be 243,000 sq. ft., and quotes a Congress member saying, “This has been a long time coming.”

The Third Circuit currently has one judge based in the Middle District of Pennsylvania — Judge Thomas Vanaskie, whose chambers are in the Scranton courthouse — but none in Harrisburg.

New opinion — Third Circuit rejects broad reading of employee’s waiver

Zuber v. Boscov’s — civil / contract — reversal — Greenaway

The Third Circuit today held that, under Pennsylvania contract law, an employee’s waiver of workers’ compensation claims did not also waive his claims under the Family Medical Leave Act and state law, reversing a district court ruling to the contrary.

Joining Greenaway were Shwartz and Greenberg. Arguing counsel were Manili Arora of Swartz Swidler for the employee, Alexander Ross Jr. of Rakoski & Ross for the employer, and Lawrence Chaban of the PA Association for Justice as amicus.

Judge Scirica to receive American Inns of Court national award

Third Circuit Judge Anthony Scirica will receive the 2017 American Inns of Court Lewis F. Powell Award for Professionalism and Ethics, the Third Circuit announced today. He’ll receive the award at an event at the Supreme Court hosted by Justice Kagan on October 21.

Established in 1990, the award goes to “a lawyer or judge who has rendered exemplary service in the areas of legal excellence, professionalism, and ethics.” While EDPA Judge Louis Pollak won the award in 2009, Judge Scirica is the first Third Circuit judge to receive it.

Earlier this year, Judge Scirica received the American Inns of Court Professionalism Award for the Third Circuit.

New opinion — another reversal of a habeas grant

Wilkerson v. Superintendent — habeas — reversal — Krause

Just last week I wrote,

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

Today it happened again. The Third Circuit reversed a district court order granting habeas relief on a double-jeopardy claim. The court also affirmed denial of an Apprendi claim, holding that the claim was time-barred. The opinion did hold that the double-jeopardy claim was exhausted even the petitioner raised only the analogous state-law claim in state court.

Joining Krause were Hardiman and Stengel EDPA by designation (an unusual situation where a district judge reviews the decision of a district colleague). Arguing counsel were Maria Pulzetti of the federal defender for the petitioner and Max Kaufman of the Philadelphia DA’s office for the state.

New opinion — Third Circuit authorizes successor habeas petition raising ACCA challenge

In re: Hoffner, Jr. — habeas — Restrepo

The Third Circuit today authorized a prisoner to file a successor petition under 28 USC § 2255 (the equivalent of habeas corpus for federal prisoners) raising a claim that the Armed Career Criminal Act is unconstitutionally vague (i.e. a Johnson claim). The court emphasized that it takes a flexible, case-by-case approach to deciding when successor petitions are authorized, rejecting the more rigid approach taken by the Eighth Circuit.

I’ll go way out on a limb and predict that the government seeks rehearing.

Joining Restrepo were McKee and Ambro. Arguing counsel were Lisa Freeland for the petitioner and Robert Zauzmer for the government.

4 new opinions, including two immigration reversals

Uddin v. AG — immigration — reversal — Rendell

The Third Circuit today granted an immigration petition to review, holding that the BIA erred when it found a Bangladesh citizen ineligible for withholding of removal. The BIA had deemed him ineligible because he was a member of a major political party, some of whose members had committed terrorist acts.

The Third Circuit held that membership in a party whose members had committed terrorism wasn’t enough — the BIA had to find that the terrorist acts were authorized by party leaders. Analogizing to American politics, the court observed, “If a single member of the Democratic or Republican Party committed a terrorist act, we would not impute terrorist status to the entire group, absent some showing that party leadership authorized the act.”

The court joined the reasoning of a 2008 Seventh Circuit opinion authored by just-retired Judge Posner. Not surprisingly, today’s opinion quotes Posner at length and identifies him by name.

Joining Rendell were Greenaway and Shwartz; Greenaway also concurred separately. Arguing counsel were Visuvanathan Rudrakumaran of NY for the petitioner and Daniel Smulow for the government.

UPDATE: The Court issued an amended opinion on September 25. The opinion link has been updated; the change is identified in this order.


Mateo v. AG — immigration — reversal — Vanaskie

The Third Circuit held that a non-citizen’s Pennsylvania conviction for robbery of a motor vehicle did not support his removal. The removal order was premised on the vehicle-robbery conviction being a crime of violence, but the Third Circuit held that the crime-of-violence standard was unconstitutionally vague. The court joined three other circuits on this point, splitting with the Fifth Circuit. The court further held that the vagueness standard is no lower in immigration cases than it is in criminal cases.

Joining Vanaskie were McKee and Jordan. Arguing counsel were Tracey Hubbard of Scranton for the petitioner and Matthew Connelly for the government.


US v. Hodge — criminal — reversal in part — Chagares

After a Virgin Islands man used a gun to rob an armored vehicle, the government charged him with a separate Virgin Islands gun count for each of three crimes he committed during the offense. Today, the Third Circuit vacated two of those non-federal convictions on double jeopardy grounds (but it rejected the analogous argument as to two federal gun counts). The court granted relief even though the defendant received a single sentence for all three counts, similar to the federal practice of imposing concurrent sentences. The court rejected the defendant’s many other challenges.

Joining Chagares were Jordan and Hardiman. Arguing counsel were Richard Della Fera of Florida for the defendant and David White for the government.


Moody v. Atlantic City Bd. of Education — employment discrimination — reversal — Shwartz

An employee sued her employer, alleging that a fellow employee had sexually harassed her and the employer retaliated against her when she complained.

On the harassment claim, the employer’s liability turned on whether the alleged harasser was her supervisor even though he didn’t hire and couldn’t fire her. The plaintiff was a substitute janitor who worked at different sites; the alleged harasser had the power to decide if she got work at one of those sites, and in a recent several-month period 70% of her work had been at that site. The district court granted summary judgment to the employer based its conclusion that the alleged harasser was not her supervisor.

Today, a divided Third Circuit panel reversed, holding that the plaintiff’s allegations were sufficient to survive summary judgment on whether the alleged harasser was her supevisor. Judge Rendell dissented on this point, arguing that in light of a recent Supreme Court case the majority was “simply incorrect.”

On the retaliation claim, the panel was unanimous that reversal was required, holding that her allegation that her hours were reduced right after she complained was sufficient.

Joining Shwartz was Greenaway; Rendell dissented in part. Arguing counsel were Samuel Dion of Dion & Goldberger for the plaintiff and Rachel Conte of Riley and Rile for the employer.

With Hurricane Irma bearing down, Third Circuit extends filing deadlines

With a Category 5 hurricane pointed right at the Virgin Islands, the Third Circuit announced today:

Due to weather conditions in the Virgin Islands, any non-emergency filing (e.g. briefs, case opening documents,) in a Virgin Islands case that is due during the period September 5 through September 12 will be due on September 13. Further extensions will be granted depending on conditions.

Be safe, Virgin Islands colleagues.

New opinion — Third Circuit rejects company’s effort to force arbitration of rewards-card dispute

White v. Sunoco — civil / arbitration — affirmance — Chagares

Sunoco, like many corporations, offers incentives to consumers who sign up for a rewards-program credit card. Sunoco doesn’t issue the credit card; a bank (here, Citibank) issues the card. Citibank sets terms and conditions, including that, in a dispute between the cardholder and the bank, the bank can force binding arbitration.

Here, a cardholder alleged that rewards-program benefits were fraudulent, and he sued Sunoco, not Citibank. Sunoco moved to compel arbitration based on the terms set by Citibank. The district court denied arbitration.

Today, in what strikes me as a major consumer-arbitration-law ruling, a divided Third Circuit panel affirmed, applying state law to conclude that Sunoco could not force arbitration under the credit-card terms issued by Citibank. The court rejected Sunoco’s arguments based on equitable estoppel and based on the arbitration clause’s inclusion of claims “made … against anyone connected with us.”

Joining Chagares was Restrepo. Roth dissented in an opinion that uses the phrase “basic contract law” twice and the adverb “clearly” five times. Arguing counsel were Seamus Duffy of Drinker Biddle for Sunoco and David Stanoch of Golomb & Honik for the consumer.

Advice for new circuit clerks

Now is the time of year when new federal appellate clerkships start, which got me thinking back to my own clerkship for a wonderful Tenth Circuit judge. (The other judge I interviewed with was Chief Judge Becker here in the Third Circuit. So close!) My clerkship was one of the best years of my life, and I’ve heard many other former clerks, before and since, say the same thing.

If you’re just starting a Third Circuit clerkship, you’ve probably heard lots of folks like me wax enthusiastic about clerking. You’re excited, and you should be. Walking into the courthouse that first day is a singular feeling.

But when I started my clerkship I had a pretty hazy idea of what clerkships actually were like. All the misty-eyed encouragement is nice, but it doesn’t give you the whole picture. Understanding a few realities going in can help you get the most out of your clerkship.

So here are six things you should know:

1. The applause is over. Law school is a firehose of feedback. Class rank, exams, jobs, law review, and on and on — as a law student you were measured against your peers constantly and minutely. You came out on the winning end often enough to land a circuit clerkship, and those triumphant moments were intoxicating.

But, when it comes to feedback, clerking is nothing like law school. You’re working just as hard, but suddenly there’s no medal ceremony at the end of every race. No one’s handing out prizes for the best opinion drafts. No one’s telling you whether your bench memo was an A+ or a B-, or why. Judges don’t care whether you rank 8th or 58th on their list of all-time best clerks, which doesn’t exist.

In law school, you knew how you were doing down to the hundredth of a gradepoint. In your clerkship, you may wonder for weeks or months, without the barest hint. The competitive fire, the moments of triumph and affirmation that got you through law school — they won’t get you through your clerkship.

2. Judges are busy. When I was a law student daydreaming about clerking, I pictured myself in the judge’s office, earnestly hashing out big legal questions with my co-clerks and the judge. Afterwards, in my daydream, the judge would mosey over to my office, lean back in a chair with his feet up on my desk, and we’d bat around reflections on the big opinion we just issued.

That ain’t how it went.

Every day, on average, my judge read 1,000 pages of briefs and decided two cases. He estimated that he wrote the equivalent of two law review articles a week. So there wasn’t a whole lot of time left to sit around and bullshit with me.

3. Extroverts beware. One of my co-clerks was a true people-person, warm and social. For folks like her, a circuit clerkship can be a lonely bore. Coming from law school, appellate clerking can feel like a year of monkish solitude. You spend most days shackled to your computer, researching and cite-checking and drafting. You get a bit of human contact with your nerdy co-clerks, but a lot less contact with other chambers, and, unlike district clerkships, no contact at all with the lawyers.

That’s fine and dandy if you’re like me — another of my co-clerks dubbed me a Lover of the Law, and I do believe his tone was mocking. But if you’re an extrovert, know that you’re probably not going to get all the social sustenance you need at work, so try to get it somewhere.

4. Accuracy before artistry. Law school rewards flash: it’s less important to be correct than to seem brilliant. Most exam questions don’t even have a ‘right’ answer. They’re a backdrop against which you dance and preen, outdoing your classmates with your elegant insights. No one cares too much whether you concluded in the end that Daisy’s negligence proximately caused Peter’s injury or not.

But, as a clerk, your focus can’t be your stardom. If it is, you can stretch too far to find and reach issues that seem important, even when (especially when) the parties haven’t briefed them adequately. You can spend too much time crafting grand Gorsuchian passages and too little time slogging through the record.

If your focus is on standing out, you’re prone to make more mistakes. Maybe that trade-off was worth it when you were a law student, but not when you’re a law clerk.

5. Be your best self. A circuit clerkship is a nifty thing to have on your CV, but for many the credential ends up mattering less than the relationships they built during the clerkship. Of course you want to charm and impress your judge, but don’t lose sight of your co-clerks and the clerks in other chambers. In the decades ahead they’re going to be doing amazing things — their friendship will enrich your life and maybe help your career. Do your best not to be an ass.

6. Let the judge be the judge. One day down the road, after the initial panic recedes, you just won’t believe how much power you’ve got as a clerk. You untangled how the case should come out, you persuaded your judge, and now it’s going into F.3d. It’s heady stuff.

That’s all fine. You really do get to have an impact, and that’s part of the fun. But keep it in perspective. You’re not the one who made it past the Judiciary Committee, and you’re not the one whose name goes on the opinions. And thank god for that. Because, for all your jaw-dropping Bluebook mastery, you’re still a knucklehead with a career’s worth of lessons yet to learn. Your job isn’t to decide cases: your job is to help your judge decide. Remember that, and you’ll do okay.


For most, the cliche turns out to be true: clerking for a federal appellate judge is an amazing opportunity. But chances are it will be a different version of amazing than the one you envisioned beforehand. The sooner you accept that, the easier it will be to appreciate everything your clerkship does offer.


As I was working on this post, I also solicited input on the topic from others. Here are those thoughts, verbatim with light editing for consistency:

  • Some lawyers just aren’t very good. While it is true that you will marvel, on occasion, at the quality of lawyers’ briefs, you also find yourself marveling that someone had the gall to submit (insert piece of trash here) to the marble palace in which you now reside. The mean average of briefs hovers around “adequate”; which, if you think about it, is probably ideal if it gets the job done. But there’s some terrible lawyering out there, more terrible still when your independent research–and get used to doing independent research–suggests that the party could have won IF ONLY…. Such is life in an adversarial system.

  • Despite the above: most clerks come into a clerkship without extensive background in actual practice. You may not know why a lawyer did something you deem puzzling, but there may be a good reason. A lawyer’s mistake, or failure to notice a case, may seem inexcusable, but you also don’t know this attorney’s caseload. People make mistakes, and it is not the job of the clerk to punch downwards.

  • Some appellate judges are “lovers of the law,” others emphasize practicality, and most are somewhere in the middle. Don’t interpret your boss’s lack of enthusiasm for the intricacies of the FLSA as a suggestion that your work is not important or appreciated. Getting things right matters.

  • Sometimes an opinion will have passed across countless desks, have undergone scrutiny by multiple pairs of eyes … and it will still have a serious substantive mistake. The law is complex; no one can be a master of all domains. Learn when to speak up, and how.

  • With occasional exceptions, federal appellate judges do not decide cases on their lonesome. In each case, whether your judge is writing or not, you will have two other judges (and their clerks) to contend with. Some Circuits are known for their collegiality, and others for their frost. But unlike in District Court, your boss will not be her own fiefdom, and that will, for better or worse, affect how your chambers decides and writes cases — both for the present and also the future, because federal appellate judges are the ultimate repeat players.

  • You will make mistakes. You will receive pushback. Try to act constructively about the former — is there anything you can do? anything you can fix? — and graciously about the latter. Perhaps the other judge, or co-clerk, isn’t beyond stupid. Perhaps they have a point that you should consider.

  • Don’t be an asshole or asshole-adjacent. Your co-clerks will be with you the entire term — perhaps shorter, perhaps longer, but in any event long enough. Office politics are magnified in a cloistered environment, and fast. Consider it a learning experience. Instead of picking a fight over Alex’s inability to ever clean the sink, breathe deep, focus, and think of whether it’s worth three weeks of avoiding eye contact and awkward lunches with the boss. Of course it isn’t.

Hey former circuit clerks: what did we miss? What do you wish someone had told you when you started? Email me, and I’ll post any good responses (anonymously, if you prefer) in a follow-up.


UPDATE: Orin Kerr responded on Twitter yesterday with his own take on advice for new clerks. Highlights: “Work hard to get along with the judge’s secretary,” and “Most briefs stink.”

The Third Circuit in the news … in the weddings section

In today’s New York Times:

Gregory Michael Schweizer and Jordan Andrew Rice were married Sept. 2 in Chicago. Judge Cheryl Ann Krause of the United States Court of Appeals for the Third Circuit in Philadelphia, officiated at the Bridgeport Art Center.

Mr. Schweizer (left), 28, and Mr. Rice, 29, met at Stanford in 2012, from which they both received law degrees.

Mr. Schweizer is a lawyer at the litigation firm Eimer Stahl in Chicago. He graduated summa cum laude from Washington University in St. Louis. He previously served as a law clerk to Judge Krause.

Congratulations Greg and Jordan!

A non-precedential grant of capital habeas relief based on Brady violation

A Third Circuit panel today affirmed a grant of habeas corpus relief in Bridges v. Secretary, No. 13-9000 and 13-9001. Bridges was convicted of first degree murder and sentenced to death for a 1996 killing in Reading, PA. The opinion is non-precedential.

Relief was based on the prosecution’s suppression of exculpatory police reports impeaching a key prosecution witness. The state had argued that the suppressed reports weren’t material because they were inadmissible and didn’t prove what the petitioner argued. The panel also ruled that the Brady claim was not adjudicated on the merits when the state court mistakenly stated that the claim had previously been denied.

The opinion author was Shwartz, joined by McKee and Fuentes. The petitioner was represented by the MDPA FPD.

New opinion — Third Circuit remands for labor arbitration

Employer Trustees of Western PA Teamsters v. Union Trustees of Western PA Teamsters — labor — reversal — Vanaskie

When labor negotiations deadlocked over employee benefits, one side sought appointment of an arbitrator to break the stalemate. The district court denied the request, but today the Third Circuit reversed, holding that the disputes fell within the parties’ agreement to arbitrate.

Joining Vanaskie were Ambro and Scirica. Arguing counsel were Robert Prorok of Cohen & Grigsby for  the appellants and  Joseph Pass of Jubelirer Pass for the appellees.

4 more new opinions

This post covers the precedential opinions issued yesterday, August 30.

Borrell v. Bloomsburg Univ. — civil rights — reversal — Hardiman

A nurse-anesthetist student was dismissed from her program for refusing to take a drug test required by the private hospital where she was doing a clinical program. The person who decided to dismiss her from the university program was the director of the program, a joint employee of the hospital and the university. The student sued under 1983, and the district court granted her summary judgment, concluding that the hospital and the program director were state actors. After a damages trial, the jury awarded her $415,000 in damages and $1.1 million in punitives which the judge reduced to $250,000 and $750,000.

The Third Circuit reversed, holding that the hospital and the program director weren’t state actors with respect to the decision to dismiss her from the program. The court also held that a university professor who had a role in the dismissal was entitled to qualified immunity.

Joining Hardiman were Fisher in full and Roth in part; Roth concurred in the judgment in part. Arguing counsel were Barry Dyller of the Dyller Law Firm for the student, Jaime Tuite of Buchanan Ingersoll for the hospital and program director, and John Knorr III of the state AG’s office for the professor.


US v. Penn — criminal — affirmance — Smith

The Third Circuit held that a district court did not abuse its discretion when, after opening statements, it removed and replaced a juror with a scheduled surgery.

Joining Smith were Fuentes and Starks D.Del. by designation. The case was decided without oral argument.


Williams v. Pa. Human Relation’s Comm. — employment discrimination — affirmance — Fuentes

The introduction, minus citations:

Cheryl Williams, an African-American woman,
claims that she was subjected to constant harassment at the
Pennsylvania Human Relations Commission (the
“Commission”) by her supervisors, Joseph Retort and Adam
Stalczynski. As a result of this treatment, she alleges she faced a hostile work environment and was ultimately constructively
discharged from her position as a Human Relations
Representative. She then filed this action against the
Commission under Title VII of the Civil Rights Act of 1964
(“Title VII”), seeking damages for the loss of her job and the
harm sustained to her physical and emotional health. She also
included claims against her former supervisors, Retort and
Stalczynski, claiming that they violated her federal rights under
Title VII and the Americans with Disabilities Act (“ADA”)
and they are therefore liable for damages under 42 U.S.C.
§ 1983. On defendants’ motion, the District Court granted
summary judgment in favor of all defendants.

In this case, we address for the first time whether
violations of Title VII and the ADA may be brought through
§ 1983. In light of the comprehensive administrative scheme
established by Title VII and the ADA, we conclude that these
claims, standing alone, may not be asserted under § 1983. And
because we also agree with the District Court that Plaintiff
Cheryl Williams presents no triable issues of fact on her
Title VII claims against the Commission, we will affirm.

Joining Fuentes were Smith and Nygaard. The case was decided without oral argument.


Delaware Riverkeeper Network v. Secretary, Dept. of Environmental Protection — environmental — affirmance — Smith

The Third Circuit rejected another effort by an environmental group to stop an interstate gas pipeline. This time the court also held that the state agency’s decision was final.

Joining Smith were Nygaard and Fuentes. Arguing counsel were Aaron Stemplewicz for the Riverkeepers, Joseph Cigan III for the state, and John Stoviak of Saul Ewing for the intervenor pipeline company

Five new opinions from the end-of-summer opinion surge

This post covers the precedential opinions issued August 29.

Parker v.Montgomery Co.  Corr. Facility — prisoner civil rights — denial — Smith

I detest the Prisoner Litigation Reform Act. This opinion magnifies the shabby unfairness of the PLRA, so I detest its result and I hope (with no optimism) that the Supreme Court or Congress fixes it.

While I believe all that, I also believe this: this opinion is superb, a near-perfect model of clarity and restraint. It is a crisp counter-punch to the cynics and the “politicians in robes” federal-judge-bashers. I deplore its holding as a policy matter, but, given controlling law, its ruling is probably correct and without a doubt reasonable.

Under the PLRA’s three-strikes rule, an indigent prisoner who has filed three actions or appeals that were deemed “frivolous, malicious, or fail[] to state a claim upon which relief may be granted” no longer qualifies to proceed in forma pauperis. That means that, unlike all other poor litigants, they must pre-pay the full filing fees. The current fee for one Third Circuit appeal is $505, or over 2600 hours of income for a PA inmate earning 19 cents an hour.

The issue in this case is whether an inmate may appeal IFP from a district court imposing a third strike. The court held that, given the language of the statute and a unanimous 2015 Supreme Court case interpreting it, he may not appeal IFP from his third strike, disagreeing with the Solicitor General and splitting with the Ninth Circuit.

Joining Smith were Fuentes and Stark D. Del. by designation. Arguing counsel were Ryan Becker of Fox Rothschild for the prisoner and Philip Newcomer for the county. The panel extended its gratitude to Becker and his co-counsel Peter Buckley for “donating their time and talent in accepting this pro bono appointment.”


Davenport v. Borough of Homestead — civil rights — partial reversal — Fisher

Late one night, a driver ran a red light and then did not pull over for police. Police followed him, as he drove into Pittsburgh, never exceeding 45 miles per hour and jeopardizing no one. The police sergeant called off the low-speed pursuit, but instead several off-duty police officers deployed a spike strip in an area filled with pedestrians. After the red-light-runner swerved out of his lane to avoid the spike strip, several officers opened fire. A pedestrian was struck in the back and the driver’s mother, a passenger in the car, was shot in the head. The mother sued the officers for using excessive force, the officers asserted qualified immunity, and the district court denied the officer’s motion.

The Third Circuit reversed, holding that no reasonable juror could find for the mother because of the heavy pedestrian presence and the driver’s swerving and, alternatively, because the unconstitutionality of the officer’s actions wasn’t clearly established. Ugh.

Joining Fisher were Hardiman and Roth. Arguing counsel were Shane Haselbarth of Marshall Dennehey for the officers and J. Kerrington Lewis Sr. of Lewis Lewis for the mother.


NLRB v. New Vista Nursing & Rehab. — labor — reversal — Smith

The Third Circuit rejected an employer’s challenges to the NLRB’s power to act based on various grounds including recess appointments of its board members. On the merits, the court vacated the NLRB’s order for applying the wrong test to decide whether the nurse employees were supervisors and thus unable to unionize.

Joining Smith was Fisher in full and Greenaway in part; Greenaway dissented on the merits issue. The case was decided without oral argument despite impressive counsel and an amicus.


Norfolk Southern Railway v. Pittsburgh & W. Va. R.R. — contract — affirmance — Vanaskie

The Third Circuit affirmed a district court’s grant of summary judgment in a dispute over interpretation of a railroad lease.

Joining Vanaskie were Ambro and Scirica. The case was decided without oral argument.


Bamaca-Cifuentes v. AG — immigration — affirmance — McKee

The Third Circuit rejected an immigration petition for review, holding that 8 CFR 1003.2(c)’s timebar applies to motions to reopen removal under the Convention Against Torture.

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

New opinions — wiping out a habeas grant and allowing discovery on the fairness of stash-house stings [updated]

The Third Circuit issued two precedential opinions yesterday, both reflecting the court’s fundamental centrism.


Mathias v. Superintendent — habeas corpus — reversal — Krause

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

The Third Circuit held that the district court erred in granting relief based on counsel’s failure to object to a faulty jury instruction involving accomplice liability. The court held that the state court’s ruling that the petitioner did not suffer prejudice was not an unreasonable application of clearly established law because two pertinent Supreme Court rulings were in tension. The court also rejected a related due process claim.

The court also held that the time-limit for cross-appealing is not jurisdictional and is waiveable under a standard set out in the opinion. It further held (as local rule 22.1(d) already provided) that petitioners need a certificate of appealability to cross-appeal, splitting with the Seventh Circuit.

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Maria Pulzetti of the EDPA federal defender for the petitioner and Jennifer Andress of the Philadelphia DA’s office for the state.

UPDATE: On November 20, the court issued an amended opinion. The link at the top of this post now goes to the new opinion. The old opinion is here, and the court’s order helpfully identifying the changes is here. The heart of the change is new footnote 4.


US v. Washington — criminal — partial affirmance — Fuentes

This appeal arose out of a stash house reverse sting. A what? The majority opinion explains:

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined. For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds. Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington [the defendant], contributing to a total sentence of 264 months in prison—far more than even the ringleader of the conspiracy received. For another, and as Washington claimed on multiple occasions before the District Court—and now again on appeal—people of color are allegedly swept up in the stings in disproportionate numbers.

The panel majority rejected the defendant’s argument that applying the mandatory-minimum sentence violated due process. Judge McKee dissented on this point, arguing that applying the minimums based on fictional drug amounts conjured by law enformcement was unfair, irrational, and not intended by Congress.

The panel unanimously remanded to allow the defendant to pursue discovery in support of a selective-enforcement claim, joining the Seventh Circuit to apply a lower standard than that applicable to selective prosecution claims.

Joining Fuentes was Cowen; McKee dissented in part. Arguing counsel were Mark Greenberg for the defendant and Eric Henson for the government.

4 new opinions

I’m out of the office for the next few days, so my posts will be later and briefer than usual.

McMunn v. Babcock & Wilcox Power — civil — affirmance — Smith

The Third Circuit today upheld summary judgment in favor of the defense in a major civil suit that alleged that radiation emissions caused the plaintiffs’ cancers.

Smith was joined by Restrepo. McKee concurred (apparently without joining Smith’s opinion, and also joined by Restrepo, which seems likely to cause future confusion to the extent the two opinions disagree). Arguing counsel were Louis Bograd of Motley Rice for the plaintiffs and John Phillips of Paul Hastings and Nancy Milburn of Arnold & Porter for the defendants.


Mendoza-Ordonez v. AG — immigration — reversal — Nygaard

The Third Circuit granted a Honduras citizen’s petition for review, holding that the man was entitled to withholding of removal based on evidence that he faced violence for his political views and reports indicating that his home country was unable to protect him.

Joining Nygaard were Ambro and Restrepo. Arguing counsel were Joseph Brophy of Brophy & Lenahan for the petitioner and Sabatino Leo for the government.


Williams v. Globus Medical — civil — affirmance — Scirica

The Third Circuit upheld dismissal of a shareholder suit against a company for belatedly disclosing a business decision that caused a sales decline.

Joining Scirica were Chagares and Fisher. Arguing counsel were Jacob Goldberg of the Rosen Law Firm for the shareholders and Barry Kaplan of WA for the company.


Delaware Riverkeeper Network v. US Army Corp of Engineers — environmental — affirmance — Smith

The Third Circuit denied a petition to review an agency ruling approving a gas pipeline.

Joining Smith were Nygaard and Fuentes. Arguing counsel were Aaron Stemplewicz for the Riverkeepers, Varu Chilakamurri for the government, and John Stoviak of Saul Ewing for the intervenor pipeline company.

Three new opinions, including an interesting actual-innocence case

Bruce v. Warden — habeas corpus — affirmance — Fisher

The Third Circuit today upheld a federal prisoner’s ability to challenge his conviction under 28 USC 2241 instead of 28 USC 2255, but on the merits held that the prisoner failed to prove his actual innocence, and thus affirmed.

On the 2241 issue, the court noted “an entrenched split among the courts of appeals regarding the extent to which a change in statutory interpretation permits a federal prisoner to resort to § 2241 for an additional round of collateral review.” (Emphasis added). The opinion notes that 10 circuits (including the Third) allow it, while the Tenth and Eleventh don’t. In a parenthetical, the opinion provocatively notes that Judge Gorsuch was the author of the 10th Circuit opinion, and it ends by noting that split causes difficulties that “will remain, at least until Congress or the Supreme Court speaks on the matter.” All that sounds a weensy bit like a nudge to grant certiorari and perhaps reverse the Third Circuit rule, but the opinion goes on to emphatically reaffirm the rightness of the circuit’s approach, and perhaps that tension explains why it took 10 months after oral argument to issue the opinion.

On the actual innocence issue, the court began by noting that this was the first time it had considered the merits of an actual innocence claim under 2241. It left open the question of what standard applies to such claims by rejecting Bruce’s claim under the more lenient standard, the Schlup/House/McQuiggan gateway standard. Applying that standard to the facts, the court rejected Bruce’s claim.

Joining Fisher were Vanaskie and Krause. Arguing counsel were Rajeev Muttreja of Jones Day for Bruce and Kevin Ritz for the government.


Vanderklok v. US — civil rights — reversal in part — Jordan

This appeal arose from an airport-security-screening dispute. A would-be traveler alleged that a TSA screener violated his First and Fourth Amendment rights by falsely accusing him of making bomb threats after the traveler threatened to file a complaint against the screener. The Third Circuit today held that no Bivens action for First Amendment retaliation exists against airport security screeners who retaliate against travelers for exercising their free-speech rights. As to the Fourth Amendment malicious prosecution claim, the court held that no interlocutory appeal was available because the defendant sought summary judgment on the merits rather than on qualified immunity.

Joining Jordan were Smith and Roth. Arguing counsel were John Connell of Archer for the TSA screener, Thomas Malone of the Malone Firm for the traveler, and Daniel Aguilar for the government as amicus.


M.R. v. Ridley School Dist. — civil — reversal — Krause

The introduction:

Under the Individuals with Disabilities Education Act, a parent of a child with a disability can bring administrative and judicial proceedings to challenge a school district’s alleged violations of the Act, and, if the parent emerges as “a prevailing party,” the parent is then eligible for an award of attorneys’ fees. 20 U.S.C. § 1415(i)(3)(B). This case presents the question whether a fee award is available to parents who, after unsuccessfully challenging a school district’s proposed educational placement for their child, later obtain a court order requiring the school district to reimburse them for the costs of the child’s “stay put” placement—the “then-current educational placement” in which the Act permitted the child to remain while administrative and judicial proceedings were pending. Id. § 1415(j). We answer this question in the affirmative and conclude, consistent with the Act’s text and with the opinions of this Court and the other Courts of Appeals, that a court-ordered award of retrospective and compensatory relief, even if awarded under the Act’s “stay put” provision, 20 U.S.C. § 1415(j), confers “prevailing party” status. We therefore will reverse the District Court’s denial of attorneys’ fees and remand for proceedings consistent with this opinion.

Joining Krause were Vanaskie and Restrepo. Arguing counsel were Alan Yatvin of Popper & Yatvin for the appellants and John Francis Reilly of Media for the district.

New opinions — significant new antitrust, declaratory-judgment opinions

In re: Lipitor Antitrust Litig. — antitrust — reversal — Smith

In a sprawling opinion whose 17-page caption is longer than many published opinions, the Third Circuit today reversed a district court’s dismissal of antitrust suits against companies holding the patents on popular drugs for treating cholesterol and depression. The court rejected the district court’s rulings that the plaintiffs’ allegations were not plausible.

Joining Smith were Ambro and Fisher. The nine (!) arguing counsel were:


Kelly v. Maxum Specialty Ins. Gp. — civil — reversal — Chagares

After a plaintiff sued a defendant, the plaintiff filed a federal suit seeking a declaratory judgment on the defendant’s insurer’s coverage. The Third Circuit said this situation is “familiar” and that district courts in this circuit are divided on the “important” question of whether to let the federal suits proceed. Today, the court reversed a district court’s dismissal, holding that a federal declaratory-judgment coverage suit was not substantially similar to the underlying civil suit and that its remand was an abuse of discretion.

Joining Chagares were Hardiman and Scirica. Arguing counsel were Sina Bahadoran of Florida for the insurer, John Reed Evans of Donnelly & Associates (formerly of Selective Law Group) for an insurance broker, and Gregory Kowalski of Pansini & Mezrow for the plaintiff.


New opinion — Third Circuit upholds rejection of Wellbutrin antitrust claims

In re: Wellbutrin XL Antitrust Litig. — civil — affirmance — Jordan

Today, the Third Circuit upheld a district court’s grant of summary judgment against plaintiffs who alleged that a pharmaceutical giant GlaxoSmithKline violated antitrust law in two ways:

First, the Appellants claim that GSK delayed the launch of generic versions of Wellbutrin XL by supporting baseless patent infringement suits and a baseless FDA Citizen Petition aimed at generic drug companies. Second, they claim that GSK delayed the launch of those generic drugs by entering into an unlawful reverse payment settlement agreement with its potential competitors.

In a lengthy and record-intensive opinion, the court held for GSK on both points.

Joining Jordan were Vanaskie and Nygaard. Arguing counsel were former Third Circuit clerk Peter St. Phillip Jr. of New York for one group of appellants; David Sorensen of Berger & Mongague and Thomas Sobol of Massachusetts for another group of appellants; and Leslie John and Stephen Kastenberg of Ballard Spahr for GSK.

New opinion — Third Circuit rejects strip club’s effort to force arbitration

Moon v. Breathless — civil / employment / arbitration — reversal — Greenaway

The Third Circuit today reversed a district court’s ruling granting summary judgment in favor of arbitration. The case arose when a woman who performed at the Breathless Men’s Club sued the club under the Fair Labor Standards Act and two state laws alleging employee wage-and-hour violations. The club argued, and the district court agreed, that her suit was barred by an arbitration clause in its contract with the woman, which by its terms applied to disputes “under this Agreement.” Applying New Jersey law, the Third Circuit held that courts should decide the arbitrability issue and that the clause did not cover this suit mainly because it arose under statutes, not under the contract.

Joining Greenaway were Fisher and Hardiman. Arguing counsel were Jeremy Abay of Sacks Weston for the woman and Marc Gross, formerly of Greenbaum Rowe but now at Fox Rothschild, for the club.

New opinion — ascertainability, again [updated]

City Select Auto Sales v. BMW Bank — class action — reversal — Scirica

If you were to make a list of the most significant things the Third Circuit has done in recent years — or the most controversial — you’d probably include its creation of the “ascertainability” requirement for class certification. The ascertainability requirement obligates plaintiffs seek to proceed with certain class actions to show that the class is objectively defined and that there’s a “reliable and administratively feasible” way to figure out who’s in the class. Since creating the requirement in 2012, the court has issued several major opinions refining it, while Judge Rendell has called for abandoning it.

Today the Third Circuit revisited the ascertainability issue again, vacating a district court’s ruling that relied on it to deny class certification. The court explained:

In this case, we will vacate and remand for two reasons. First, our ascertainability precedents do not categorically preclude affidavits from potential class members, in combination with the Creditsmarts database, from satisfying the ascertainability standard. Second, because the Creditsmarts database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists based, in whole or in part, on that database.

Joining Scirica were Krause and Fuentes. Fuentes also concurred to join Rendell’s earlier call to reject the ascertainability requirement, noting that three circuits have rejected it and arguing that it creates an unnecessary burden for low-value consumer class actions.

Arguing counsel were Philip Bock of Chicago for the putative-class plaintiff, Julia Strickland of Los Angeles for 2 defendants, and William Hayes III of Denver for a third defendant.

UPDATE: Alison Frankel of Reuters has this outstanding analysis of today’s case and what it means for the larger battle over ascertainability.

Three new opinions

US v. Martin — criminal sentencing — affirmance — Hardiman

Can both of these things be true at once?

  • A criminal sentence is “based on a sentencing range that has been subsequently lowered by the Sentencing Commission,” but
  • the Guidelines chance does NOT have “the effect of lowering the defendant’s applicable guideline range.

That is, can a sentence be “based on” a guidelines range without that range being the “applicable” guidelines range?

Today the Third Circuit answered that question ‘yes,’ and on that basis it held that the defendant was not entitled to retroactive application of a Guidelines amendment. The defendant’s guilty plea and the sentence he received were based on the drug quantity involved (impacted by the Guidelines amendment), but the sentencing court had found that his advisory guidelines range should be based on his career offender status (not impacted by the Guidelines amendment).

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


McNelis v. PP&L — employment — affirmance — Hardiman

The Third Circuit ruled that employment-related regulations promulgated by the Nuclear Regulatory Commission trumped the Americans with Disability Act.

Joining Hardiman, again, were Roth and Fisher, and again the case was decided without argument.


In re: Howmedica Osteonics — civil / mandamus — reversal — Krause

Successful mandamus petitions are rare. Successful mandamus petitions turning on previously not-very-settled questions of law are rarer still. But the Third Circuit granted such a petition today.

The district court ruling at issue involved forum-selection agreements. The Supreme Court has said such agreements usually must be enforced, but the question in this case was what to do when some of the defendants had signed non-compete clauses with forum-selection clauses, but some hadn’t. The district court decided not to enforce the forum-selection clauses against any of the defendants. Today, the Third Circuit held that this was a clear error, and ruled that the claims against the forum-selection-clause defendants will proceed in one forum while the claims against the no-clause defendants will proceed in another.

Joining Krause were Scirica and Fuentes. Arguing counsel for the mandamus petitioners was Robert Carty Jr. of Texas. Arguing for various defendants were Jed Marcus of Bressler Amery, Anthony Haller of Blank Rome, and Jeffery Brown of California.


Bashman: “Assessing Current and Future Trump Nominees to the Third Circuit”

Howard Bashman has a fine new appellate law column today in the Legal Intelligencer analyzing Third Circuit nominations. The whole column is worth reading, but two points in particular jumped out to me:

Ironically, when it comes to criminal justice issues, Bibas could at least in some respects end up being to the left of President Barack Obama’s nominee to fill this vacancy, Rebecca Ross Haywood, chief of appeals for the U.S. Attorney’s Office in Pittsburgh. Haywood’s nomination was among those the Republican-controlled Senate deemed to have occurred too close to the 2016 presidential election to deserve full consideration or an up-or-down vote.

Bibas’ recent work litigating high-profile criminal matters has been on the defendants’ side, while Hay[w]ood’s has been on the side of the prosecution. The result could be that Bibas, in common with Scalia, may end up voting in favor of what is perceived as the liberal or libertarian result in criminal cases more often than one might expect solely based on which party nominated him.


Unlike many other federal appellate courts, which over the years have been known for their often very liberal or very conservative judicial rulings, the Third Circuit has stuck to the middle, generally favoring centrist decisions.

Casey is up for re-election in 2018—little over one year away—but assuming that the Democratic party can hold on to that seat, I would expect little change overall to the Third Circuit’s centrist disposition in the years ahead, even as many other federal appellate courts in that same period may see far more drastic changes in their composition and outlook.

“Federal Appellate Court Judge seeks a recent law school graduate as a full-time temporary law clerk …. for three weeks starting August 28”

The Third Circuit website today posted an interesting vacancy announcement. A Philadelphia-based Third Circuit judge is hiring a law clerk for three weeks, starting the end of this month, with the chance to apply for a permanent spot.

Says the announcement:

The incumbent conducts legal research, prepares legal memoranda, helps prepare the judge for oral argument, coordinates and helps train interns, and assists in the drafting of orders and opinions in both civil and criminal cases. In addition, the incumbent handles the filing of orders and opinions, interfaces with the public, other court units, and other chambers as needed, coordinates the judge’s scheduling and travel, and oversees the day-to-day operations of chambers. This position is located in the judge’s chambers and reports directly to the judge.

Sounds like an amazing three weeks. Does my 16 years since graduating law school qualify me as “recent”?

Judicial Conference releases proposed appellate rules changes

The Judicial Conference today announced proposed amendments to the federal rules. Among the proposed changes are a handful of small-bore changes to the appellate rules, namely:

  • new disclosure-statement requirements for the government in some criminal appeals and for debtors in some bankruptcy appeals, and
  • an end to the requirement for mailing paper copies of notices of appeal by district clerks and tax-case appellants.

A memo explaining the changes, authored by appellate rules advisory committee chair Judge Chagares, is here.

Written comments on the proposed changes are due by Feb. 15, 2018, and can be filed here. Or if you’re really fired up you can testify at a public rules committee hearing.

New opinion — Third Circuit invalidates joint-and-several forfeiture order

US v. Gjeli — criminal — partial reversal — Jordan

The Third Circuit today vacated criminal forfeiture orders that imposed joint and several forfeiture liability on two co-defendants. Today’s ruling was based on the Supreme Court’s decision earlier this year in Honeycutt v. United States, which the opinion said effectively overturned prior circuit precedent. While Honeycutt interpreted only one federal forfeiture statute, the court held that its reasoning applies equally to two others. The court affirmed on two other sentencing grounds.

Joining Jordan were Krause and Stearns D.Mass by designation. The case was decided without oral argument.

Bibas isn’t 50, but he did get the ABA’s top rating and broad support from his colleagues [updated]

Three [now four!] updates on Third Circuit nominee Stephanos Bibas:

First, the American Bar Association judicial ratings committee has rated Bibas well qualified. Of Trump’s nine circuit nominees rated so far, Bibas is the fifth to get the ABA’s highest rating.

Second, Bibas is not his 50’s. When Bibas’s nomination was first announced, conservative activist Carrie Severino gave his age in a National Review profile as “50 (approximate).” But in reality Bibas is 47 years old, according to Penn Law’s own June 7 announcement. (I haven’t seen his birthdate reported, so it’s possible he’s since turned 48.)

Third, Severino’s profile now links to letters of endorsement sent to the Senate Judiciary committee signed by a slew of fellow academics, including this one whose signers include numerous prominent liberals and this one from a former clerk for Judges Sloviter and Restrepo.

UPDATE: also today Politico reported that Bibas met with Republican PA Senator Pat Toomey but not Democratic Senator Bob Casey before his nomination.

Trump’s Third Circuit nominations: where things stand today

I’ve posted a lot over the past couple months about various Third Circuit nomination developments. With this post I want to pull it all together so you can more easily see the big picture.

The Third Circuit has 3 openings to fill out of its 14 total active-judge seats. Of the court’s current 11 active judges, 7 were nominated by Democratic presidents, 4 by Republicans. The 3 open seats formerly were held by Judges Rendell, Fuentes, and Fisher before each took senior status:

  • The Rendell seat opened over 18 months before the end of President Obama’s term. Obama nominated Rebecca Haywood for the seat but PA Senator Pat Toomey blocked her by withholding his blue slip.
  • The Fuentes seat opened over 6 months before the end of President Obama’s term, without an Obama nomination.
  • The Fisher seat opened at the start of President Trump’s term.

The Rendell and Fisher seats are for Pennsylvania, the Fuentes seat is for New Jersey. Under long-standing practice, that means the nominees will come from those states and that each state’s two US senators each have the power to block nominations for their state by withholding their blue slip (although some conservatives are pushing to end blue slips for circuit nominees). Pennsylvania has one Democratic senator, Bob Casey; both of New Jersey’s senators are Democrats (Cory Booker and Bob Menendez).

For reasons I’ve laid out here, my view is that the Rendell and Fuentes seats should be filled by moderates in their 50’s, while the Fisher seat should be filled by any qualified nominee Trump chooses, and that at least 2 of the 3 should be women.

Here’s where the nominations process stands with each open seat:

  • For the Rendell seat (PA), Trump nominated Penn Law professor Stephanos Bibas. His nomination is pending before the Senate Judiciary Committee and appears to be proceeding normally so far, contrary to some erroneous reports last month that Casey was blocking it. Bibas is 47 (not approximately 50 as has been reported). He received a unanimous well-qualified rating from the ABA.
  • For the Fuentes seat (NJ), Trump has not made a nomination yet, but reportedly Chris Christie protege Paul Matey is the likely choice and is being vetted now. Matey is 46.
  • For the Fisher seat (PA), Trump also has not made a nomination yet. Back in May, Federalist Society stalwart David Porter was reportedly close to being nominated, but the same report said that Casey would block a Porter nomination, and there’s been nothing public since.

So most of the real action is yet to come, but that’s where we stand today.

Matey resurfaces as potential Third Circuit nominee

Back in May, David Lat reported on Above the Law that Paul Matey was a leading contender for the open New Jersey seat on the Third Circuit.

This afternoon, Andrew Seidman and Jonathan Tamari report on that Matey remains a strong candidate for the nomination:

Also in play is a spot on the U.S. Court of Appeals for the Third Circuit in Philadelphia. Another Christie ally, Paul Matey, is being vetted for that judgeship, the sources said. The negotiations go as far as to include U.S. Marshall positions.

 The sources described the maneuvering to the Inquirer and Daily News on condition of anonymity because they were not authorized to discuss the private talks.

One of the sources said he was interviewed by the FBI with regard to Carpenito and Matey, a former federal prosecutor who was Christie’s deputy chief counsel in the governor’s office, as part of the bureau’s routine vetting process.

The final details of a potential deal are still pending, but are aimed, in part, at breaking a logjam set up by competing Republican power brokers and New Jersey’s two Democratic senators, who, under Senate tradition, can block nominees in their home state.

The article confirms that Matey is 46 and reports that he could not be reached for comment.

Bibas has a new book out

All’s been quiet on the Stephanos Bibas nomination front since the silly blue-slip flap a month ago.

But Jonathan Adler wasn’t joking when he observed that Bibas is quite prolific, so, naturally, Bibas has a new book out. It’s entitled Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, co-authored with fellow law professor Benjamin Barton (who strikes me as a liberal-leaning guy from his CV, for those hunting for more tea-leaves about Bibas’s ability to function effectively on a court with diverse perspectives).

The book’s publisher’s page says this:

America is a nation founded on justice and the rule of law. But our laws are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights. Criminal defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases and immediately urges them to plead guilty. Civil litigants are even worse off; usually, they get no help at all navigating the maze of technical procedures and rules. The same is true of those seeking legal advice, like planning a will or negotiating an employment contract.

Rebooting Justice presents a novel response to longstanding problems. The answer is to use technology and procedural innovation to simplify and change the process itself. In the civil and criminal courts where ordinary Americans appear the most, we should streamline complex procedures and assume that parties will not have a lawyer, rather than the other way around. We need a cheaper, simpler, faster justice system to control costs. We cannot untie the Gordian knot by adding more strands of rope; we need to cut it, to simplify it.

A review by Jonathan Knee in the New York Times Dealbook page is here. And one of Barton’s law-school colleagues, Glenn Harlan Reynolds, has an essay in USA Today here.

New opinion — Third Circuit partially revives challenge to corporate escheat

Plains All American Pipeline v. Cook — civil — partial reversal — Fisher

After Delaware initiated proceedings to review whether a company’s property was subject to seizure under the state’s escheat law, the company filed suit, alleging various constitutional violations. The district court dismissed the suit, mainly on ripeness grounds because the suit was filed before Delaware assessed liability or sought to make its review findings enforceable. Today, the Third Circuit reversed in part, holding that the company’s as-applied procedural due process claim was ripe, but otherwise affirming. The court declined to affirm the dismissal of the due process claim on alternative grounds, citing circuit precedent that absent exceptional circumstances the court will decline to consider an issue not passed on below and finding no exceptional circumstances.

Joining Fisher were Chagares and Scirica. Arguing counsel were Jeremy Marwell of Vinson and Elkins for the company, Steven Rosenthal of Washington DC for one group of appellees, and Ryan McManus of Boston for another appellee.


New opinions — catching up on last week’s ten opinions, including another ACA blockbuster and several notable reversals

Last week I was on vacation. During slow periods it’s not all that rare for the Third Circuit to go a week without issuing a single published opinion. But July/August is never a slow period — that’s when clerkships typically end, so everyone is scrambling to clear the decks. Last week the court issued 10 precedential opinions, 5 on Friday alone.

And there were some big ones, including a hot-button Affordable Care Act case and reversals in criminal, habeas, immigration, and prisoner civil rights cases. But enough wind-up …


US v. Wrensford [July 31] — criminal — reversal in part — Shwartz

The Third Circuit held that a defendant was arrested for Fourth Amendment purposes when he was involuntarily taken to a police station and held in a cell. Seems obvious, but the district court ruled to the contrary. The court vacated his criminal conviction and remanded. The court affirmed a co-defendant’s convictions on various grounds.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were FPD Omodare Jupiter for the prevailing appellant, Martial Webster for the other appellant, and Rhonda Williams-Henry and David White for the government.


Haskell v. Superintendent [August 1] — habeas corpus — reversal — Ambro

In this significant habeas corpus opinion, the Third Circuit held that a petitioner who has established a reasonable likelihood that the prosecution’s knowing use of false evidence could have affected the outcome need not also show that the error was not harmless. (Or, for my fellow habeas nerds, once you clear Napue you don’t have to clear Brecht too.) On the merits, the court reversed the district court’s denial of relief. Appallingly, the district court had not even granted a certificate of appealability.

Joining Ambro were Vanaskie and Restrepo. Arguing counsel were AFPD Elisa Long for the appellant and Mark Richmond of the Erie DA’s office for the Commonwealth.


EEOC v. City of Long Branch [August 2] — civil procedure — reversal — Chagares

The Third Circuit summarized its decision vacating a district court ruling in an EEOC enforcement suit thus:

The EEOC raises two issues on appeal: (1) whether Long Branch is precluded from contesting the motion to enforce because it failed to exhaust its administrative remedies ***, and (2) whether the EEOC may disclose information from the noncharging parties’ employment and personnel records to Lt. Johnson ***. Despite the compelling nature of these issues, we will not reach them because of a procedural error committed by the District Court: the District Court erroneously treated the motion to enforce that the Magistrate Judge had reviewed as a nondispositive motion instead of a dispositive motion. This is a meaningful distinction under the Federal Magistrates Act, 28 U.S.C. § 631, et seq., as the categorization of motion dictates, inter alia, the level of authority with which a magistrate judge may act on a motion and the availability and standard of review afforded by the District Court and our Court.

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


Ildefonso-Candelario v. AG [August 3] — immigration — reversal — Stearns

The Third Circuit held that a conviction under Pennsylvania’s obstruction-of-justice statute, 18 Pa. Cons. Stat. 5101, is not categorically a crime involving moral turpitude because it sweeps in non-fraudulent conduct. The court firmly rejected the government’s request to remand without decision to let the BIA reconsider its ruling.

Joining Stearns (D. Mass., sitting by designation) were Jordan and Krause. Arguing counsel were Daniel Conklin of the Shagin Law Group for the petitioner and Rebecca Phillips for the government.


Blackledge v. Blackledge [August 3] — family — affirmance — Krause

The Third Circuit rejected a father’s appeal from denial of his petition alleging that the mother violated an international treaty by retaining custody of their son.

Joining Krause were Ambro and Nygaard. Arguing counsel for the father was former Fisher clerk M. Patrick Yingling of Reed Smith; Barbara Ernsberger of Behrend & Ernsberger argued for the mother. The opinion thanked the father’s counsel for accepting the court’s appointment in the case and for their “excellent briefing and argument.”


Millhouse v. Heath [August 4] — prisoner civil rights — reversal — Cowen

The mean-spirited Prison Litigation Reform Act contains a provision — the PLRA’s three strikes rule — that poor prisoners cannot qualify for the same reduced filing fees as any other poor litigants if they previously filed three or more prisoner suits that were deemed frivolous, because it’s so fair to punish people who are poor and lawyer-less for not accurately assessing the strength of their potential legal claims.

Last week, a partially divided Third Circuit panel held that a prisoner was entitled to file in forma pauperis despite having more than 3 prior suits dismissed as frivolous because (1) the number of PLRA strikes must be assessed as of the time the notice of appeal is filed and (2) dismissals without prejudice for failure to state a claim do not count as strikes. Judge Ambro disagreed on both points but would have reached the same result through equitable tolling.

Joining Cowen was Restrepo, with Ambro dissenting in part. Arguing counsel were Stephen Fogdall of Schnader Harrison for the prisoner and Timothy Judge for the government. The opinion thanked Fogdall and his Schnader co-counsel Emily Hanlon for their “excellent work” as pro bono counsel appointed by the court.


US v. Ferriero [August 4] — criminal — affirmance — Scirica

The Third Circuit affirmed the conviction and sentence of a New Jersey county politico convicted of violating the Travel Act, RICO, and the wire fraud statute by lobbying on behalf of commercial clients without disclosing his own financial interest. In a lengthy opinion, the court rejected various challenges to the convictions, including the defendant’s quite plausible-sounding argument that failing to disclose his interest cannot constitute making a false or fraudulent misrepresentation under the wire fraud statute. The court also rejected the defendant’s arguments relying on McDonnell v. United States.

Joining Scirica were Hardiman and Rosenthal SD Tex by designation. Arguing counsel were Peter Goldberger for the defendant and Bruce Keller for the government.


US v. Chapman [August 4] — criminal — affirmance — Greenaway

The Third Circuit held that a conviction for mailing a threat to injure constitutes a crime of violence under the Sentencing Guidelines. Judge Jordan concurred “to express dismay at the ever-expanding application of the categorical approach.”

Joining Greenaway were Jordan and Rendell. Arguing counsel were Ronald Krauss of the MDPA federal defender for the defendant and unfairly blocked Third Circuit nominee Rebecca Ross Haywood for the government.


In re: AE Liquidation [August 4] — civil — affirmance — Krause

The opinion’s introduction says it best:

This case arises from the bankruptcy and subsequent
closing of a jet aircraft manufacturer, and requires us to assess
that manufacturer’s obligation under the Worker Adjustment
and Retraining Notification (WARN) Act, 29 U.S.C. §§
2101-2109, to give fair warning to its employees before
effecting a mass layoff. On appeal, we are asked to determine
whether a business must notify its employees of a pending
layoff once the layoff becomes probable—that is, more likely
than not—or if the mere foreseeable possibility that a layoff
may occur is enough to trigger the WARN Act’s notice
requirements. Because we conclude that a probability of
layoffs is necessary, and the manufacturer has demonstrated
that its closing was not probable until the day that it occurred,
it cannot be held liable for its failure to give its employees
requisite notice. Accordingly, we will affirm ***

Joining Krause were Fisher and Greenberg. Arguing counsel were Jack Raisner of New York for the appellants and Barry Klayman of Cozen O’Connor for the appellees.


Real Alternatives v. Secretary DHHS [August 4] — civil — affirmance — Rendell

A sharply split Third Circuit panel held last week that a secular anti-abortion group with no religious affiliation was not entitled to the same exemption as houses of worship from the Affordable Care Act’s requirement that employer-provided health insurance include contraceptive services. The court also held that employees’ religious beliefs are not substantially burdened by the ACA’s contraception mandate. The majority answered both questions “[a]fter careful review, but without any hesitation.” A petition for certiorari seems a certainty and I sure wouldn’t bet against a grant.

Joining Rendell was Greenaway. Jordan dissented as to the rejection of the employees’ claims. Both authors are at the top of their game. Arguing counsel were Matthew Bowman of Alliance Defending Freedom for the employer and employees and Joshua Salzman for the government.

New opinion — when courts impose supervised release on defendants who are getting deported anyway, they need to explain why

US v. Azcona-Polanco — criminal sentencing — affirmance — Restrepo

Immigrants who have been convicted of a deportable offense are presumptively exempt from discretionary supervised release — deportation is essentially automatic, so imposing supervised release mainly serves to enhance any subsequent punishment for illegal reentry. But courts are allowed to impose supervised release on defendants who will be deported in individual cases, on the theory that the extra punishment will be an extra deterrent against re-entry.

That’s all backdrop for the sentencing procedure question the court answered yesterday: when judges impose supervised release on defendants who will be deported, despite the presumption, do they need to explain why? In a clear and thorough opinion, the Third Circuit said yes: they must acknowledge the presumption and state their reasons for nevertheless imposing it. In the case before it, the sentencing judge did neither, but the Court held that this failure was not plain error given the defendant’s prior criminal history including a prior illegal re-entry.

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

New opinion — “Because his allegations against the beauty-products corporation are more than skin-deep, we reverse.”

Trzaska v. L’Oreal USA — employment — reversal — Ambro

The Third Circuit today ruled in favor of an in-house attorney who alleged that he was fired by L’Oreal for refusing to meet a corporate quota for patent applications (?) by filing applications for unpatentable products. The witty quote that forms the title of this post is from the opinion.

Ambro was joined by Fuentes; Chagares dissented. Arguing counsel were Harold Goodman of Raynes McCarty for the attorney and Christopher Carton of K&L Gates and Eric Savage of New York for L’Oreal.

New opinion — another masterful Ambro bankruptcy opinion

In re: Semcrude — bankruptcy — affirmance — Ambro

Is there a judge alive who does a better job of explaining complex business disputes than Judge Ambro? I’m not aware of any. The latest example comes today in the Third Circuit’s opinion affirming summary judgment in favor of one group of companies over another in a giant Chapter 11 bankruptcy case. Here’s the introduction:

Appellants, who are oil producers, sold their product to SemGroup L.P. and affiliates (including SemCrude L.P.), midstream oil and gas service providers and the Debtors in the underlying Chapter 11 cases. SemGroup sold oil to and traded oil futures with Appellees, downstream oil purchasers. The producers took no actions to protect themselves in case of SemGroup’s insolvency. The downstream purchasers did; in the case of default, they could set off the amount they owed SemGroup for oil by the amount SemGroup would owe them for the value of the outstanding futures trades. Accordingly, when SemGroup filed for bankruptcy, the downstream purchasers were paid in full while the oil producers were paid only in part.

Because the oil producers did not take precautionary measures to ensure payment in case of SemGroup’s insolvency, all they have to rely on are local laws they contend give them automatically perfected security interests or trust rights in the oil that ended up in the hands of the downstream purchasers. But the parties who took precautions against insolvency do not act as insurers to those who took none. Accordingly, we affirm the grant of summary judgment in the downstream purchasers’ favor.

Joining Ambro were Jordan and Fisher. Arguing counsel were Lewis LeClair of Texas for the producers, Thomas Moloney of Cleary Gottleib for J. Aron, David Zalman of New York for BP Oil Supply, and Hartley Martyn of Ohio for IC Co.


Also, I noticed today that earlier this week the Third Circuit issued its amended opinion in US v. Stimler, after entering an order noting the existence of factual errors in the original opinion. The new opinion is here, and I’ve updated my original post accordingly. Today, the court entered an order amending the amended opinion to correct a misspelling of Justice Blackmun’s name, but today’s order lists the wrong counsel at the bottom.

Now I wonder if the court will enter an order amending its order amending the amended opinion.

“Pa. needs more diversity in federal appeals courts”

Kadida Kenner of Why Courts Matter PA, had this letter today on LehighValleyLive. The letter decries the Third Circuit’s gender imbalance. It also calls for the renomination of Rebecca Haywood to fill the second open PA seat on the court, noting:

For anyone keeping score, Haywood’s confirmation would have only been the 21st federal court confirmation in Obama’s last two years of his presidency, compared to Ronald Reagan with 83, Bill Clinton with 72 and George Bush with 68 confirmations during their final two years.

Two new opinions

Seneca Resources v. Township of Highland — civil — affirmance — Smith

A Pennsylvania township enacted an ordinance barring a gas company from using a well to store waste from fracking. When the gas company sued the township, four groups moved to intervene to help defend the statute. After their motion was denied on the theory that the township adequately represented the intervenors interests, the township repealed the ordinance and entered a consent decree. The would-be intervenors appealed, challenging the denial of intervention and the consent decree. The Third Circuit held that the denial of intervention was moot because there was no ordinance to defend and that, as non-parties, they could not appeal the consent decree.

Joining Smith were Jordan and Roth. Arguing counsel were Lindsey Schromen-Wawrin of Washington for the would-be intervenors, Stanley Yorsz of Buchanan Ingersoll for the gas company, and Arthur Martinucci of Quinn Buseck for the township.


Parks v. Tyson Foods — civil — affirmance — Jordan

The introduction:

This case concerns a trademark that once enjoyed widespread recognition but has since grown considerably weaker. Since the 1950s, Parks Sausage Company has manufactured or licensed sausage under the brand name “PARKS.”1 At one point, PARKS was placed on the Principal Register of trademarks at the United States Patent and Trademark Office (“USPTO”), but, sometime in the early 2000s, Parks failed to renew the registration. In 2014, Tyson Foods, Inc. and Hillshire Brands Company (collectively, “Tyson”),2 the owners of the frankfurter brand BALL PARK, launched a premium frankfurter product called PARK’S FINEST. Parks sued, arguing that Tyson was engaged in false advertising and was infringing Parks’s trademark. The District Court determined that Parks’s claim for false advertising was really a repetition of its trademark claim, and that the PARKS mark was too weak to merit protection against Tyson’s use of the PARK’S FINEST name. We agree with the District Court and will affirm in all respects.

The highlight of the opinion surely is this footnote:

Though it may distress the cognoscenti, we use the terms “frankfurters,” “franks,” and “hot dogs,” as synonyms. Not so with the term “sausage,” which we use to denote something akin to but arguably different from hot dogs.

Joining Jordan were Smith and Roth. Arguing counsel were Jeffrey Lewis of Eckert Seamans for the appellant and John Dabney of D.C. for the appellees.

New opinion: Third Circuit clarifies that a single act of harassment can establish a hostile work environment

Castleberry v. STI Group — civil / employment discrimination — reversal — Ambro

The Third Circuit today reversed a district court’s dismissal of an employment-discrimination suit. The court resolved its inconsistent caselaw on the harassment necessary to establish a hostile work environment, stating, “The correct standard is ‘severe or pervasive.” Applying this standard, the court held that a single act of harassment — a supervisor’s use of what the opinion called “the ‘n-word'” — constituted severe conduct sufficient to state a hostile-work-environment claim.

Joining Ambro were Vanaskie and Restrepo. Arguing counsel were Richard Swartz of Swartz Swidler for the employees and Donna Walsh of Myers Brier for the employers.

New opinion — Third Circuit upholds FCC caps on bidding assistance to telecom outsiders

Council Tree Investors v. FCC — civil / agency — affirmance — Hardiman

The Federal Communications Commission has a statutory duty to avoid “excessive concentration of [telecommunications] licenses” and to “disseminat[e] licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women,” collectively referred to as designated entities. Seemingly they’re not doing so hot, given what today’s opinion calls “our telecommunications quadropoly” of AT&T, Verizon, Sprint, and T-Mobile.

So it isn’t surprising that, when the FCC decided to scale back its efforts to help the outsiders get licenses, one of them sued. The main way the FCC helps designated entities is by giving them bidding credits to help them win license auctions. But in 2015 the FCC modified its bidding-credit regime, and one thing it did was impose a new cap on bidding credits. The challenger argued that the FCC ignored its statutory mandate and acted on an insufficient record.

Rejecting these challenges, the Third Circuit today upheld the FCC’s bidding-credit limit.

Joining Hardiman were Smith and Krause. Arguing counsel were Kevin Russell of Goldstein & Russell for the petitioner and Clifford Pash Jr. for the FCC.

Casey reportedly blocking Bibas nomination [update: but apparently he isn’t]

Paul Engelkemier reports at PoliticsPA that PA Senator Bob Casey is withholding his blue slip on the Third Circuit nomination of Stephanos Bibas. From the story:

Senator Bob Casey is one of the Senators who has been withholding his blue slip on Stephanos Bibas, a law professor from the University of Pennsylvania, who was nominated to the Third Circuit.

“Sadly, Bob Casey continues to embrace his far-left ‘resistance leader’ status. His newest form of obstruction —  refusing to return his blue slip for our highly qualified Keystone State nominee — is a disservice to Pennsylvania and its citizens,” PA GOP Chairman Val DiGiorgio said in a statement.

UPDATE: Oops: PoliticsPA has now updated its post:

Sources tell PoliticsPA that Republicans have misrepresented Casey’s actions. They say that Casey only received the paperwork for his blue slip about Bibas’ nomination this morning.

The Pennsylvania Democratic Party responded to the claims from Republicans.

“Before launching these absurd attacks, Republicans should get their basic facts straight. Mr. Bibas’ paperwork was received by the Senate Judiciary Committee late last night and only forwarded on to Senator Casey’s office this morning — around the same the GOP were drafting their statements claiming obstruction. Senator Casey has a strong bipartisan record of working to confirm judicial nominees from both Republican and Democratic presidents and will continue to evaluate candidates as the administration puts their names forward,” Pennsylvania Democratic Party spokesman Max Steele said in an email.

If the spokesman’s facts are correct, then the GOP was trying to pin the blame on Casey for a hold-up caused by the Trump administration itself!

Three new opinions, including another consumer win

Susinno v. Work Out World — civil / consumer — reversal — Hardiman

A company allegedly called a person’s cell phone and left a recorded sales pitch on her voicemail. She sued, alleging that the message violated the Telephone Consumer Protection Act’s prohibition on prerecorded calls to cell phones. The district court dismissed on the grounds that Congress wasn’t protecting people against single calls and that one message caused no concrete injury. Today, the Third Circuit disagreed on both points and reversed.

Joining Hardiman were Krause and Stengel EDPA by designation. Arguing cousel were Timothy Sostrin of Chicago for the plaintiff, Joshua Bauchner of Ansell Grimm for the company, and Andrew Pincus of Mayer Brown for the Chamber of Commerce as amicus.


In re World Imports — bankruptcy — reversal — Hardiman

The Bankruptcy Code gives priority to creditors who sold goods “received by the debtor within 20 days before the bankruptcy petition was filed. Today, the Third Circuit held that “received” requires physical possession.

Joining Hardiman again were Krause and Stengel EDPA. Arguing counsel were Kirk Burkley of Bernstein-Burkley for the appellants and David Braverman of Braverman Kaskey for the appellees.


Hamilton v. Bromley — civil — affirmance — Fisher

A father sued in federal court alleging a conspiracy to deprive him of contact with his son. After filing suit, he gained custody of his son pending the outcome of state-court litigation. Today the Third Circuit affirmed dismissal of the father’s suit, holding that the father’s custody mooted his federal case, but also that the district court erred in dismissing under Younger abstention without deciding mootness.

Joining Fisher were Hardiman and Roth (although Hardiman did not join the part of the opinion where the court said because it lacked jurisdiction it could not decide the Younger issue and that the district court applied the wrong Younger test.) Arguing counsel were Jon Heintz of Jones Day for the father, James Johnson of State College for the mother, Amy Marshall of Babst Calland for a youth home, and Michael Daley of the state AOC for a state judge. The opinion thanked Jones Day for handling the appeal pro bono and for the quality of counsel’s representation.

New opinions — Third Circuit recognizes right to film police in public

Fields v. City of Philadelphia — civil rights — reversal — Ambro

In a landmark free-speech ruling, the Third Circuit today held that individuals have a First Amendment right to film police activity in public. A panel majority further held that the officers who did the filming here were entitled to qualified immunity from suit because the right had not been sufficiently clearly established; Judge Nygaard dissented on this ground. The court remanded for the district court to decide whether the city was subject to municipal liability.

Joining Ambro was Restrepo; Nygaard joined in part and dissented in part. Arguing counsel were Molly Tack-Hooper of ACLU-PA for the plaintiffs and Craig Gottlieb of the Philadelphia city Law Department for the defendants. A host of top-flight appellate lawyers were on the briefs on the ACLU’s side, including Jonathan Feinberg of Kairys Rudovsky, Alicia Hickok of Drinker Biddle, and Ilya Shapiro of Cato Institute.

Early commentary by Eugene Volokh at Volokh Conspiracy here and by Mark Joseph Stern at Slate here.

US v. Stimler* — criminal — affirmance — Roth

The Third Circuit affirmed the convictions of three Orthodox Jewish rabbis who were convicted of conspiracy to commit kidnapping for their role in “a scheme through which they … sought to assist Orthodox Jewish women to obtain divorces from recalcitrant husbands.”  The court rejected 8 different challenges to the convictions; Judge Restrepo wrote separately to disagree with the panel majority’s conclusion that investigators’ warrantless use of cell site location information did not violate the Fourth Amendment, but would have affirmed anyway under the good-faith exception.

Joining Roth was Chagares; Restrepo concurred in the judgment in part. Arguing counsel were Nathan Lewin of Washington DC for one defendant, Aidan O’Connor of Pashman Stein for the second, and Peter Goldberger for the third. Arguing for the government were Norman Gross and Glenn Moramarco of the NJ US Attorney’s office.

Early news coverage here and here.

UPDATE: on July 17 the court issued an order stating that the government “has advised of factual errors contained within the opinion” and that in light of the letter the Court will issue an amended opinion. It states that the amendment does not alter the judgment.

*The link at the top of this entry now goes to the amended opinion issued July 17. The original, withdrawn opinion is here.

Three new opinions [updated]

US v. Jackson — criminal — reversal — Cowen

The government appealed from the criminal sentences imposed on a husband and wife for abusing their foster children. A divided Third Circuit reversed for resentencing on a host of grounds.

The 82-page majority opinion noted:

This case implicates a number of rather unusual sentencing issues. This is not surprising because Defendants were not convicted and sentenced for committing enumerated federal crimes of the sort that federal courts consider on a regular basis. Instead, they were convicted and sentenced in federal court for state law offenses “assimilated” into federal law pursuant to a federal statute, the ACA.

The panel majority held that the district court erred in concluding that the federal sentencing guideline for assault was not sufficiently analogous to use to calculate the defendants’ guideline range. The district court also erred in refusing to make sentencing-related findings of fact beyond the findings found by the jury at trial. And it erred some more by “focusing on state sentencing principles to the exclusion of basic federal sentencing principles.” Judge McKee dissented, mainly to disagree with the majority on the analogous-guideline point.

Finally, Judge Cowen’s majority opinion concluded that “we do conclude” that the sentences were substantively unreasonable. But a footnote in the majority opinion stated that Judge Fuentes “would vacate” on the preceding procedural grounds “without reaching” substantive unreasonableness. (A footnote in Judge McKee’s dissent states that he refrains from reaching the issue.) So is there a precedential holding on substantive unreasonableness? It’s possible to argue either way, and I expect future litigants will do exactly that. I think the substantive reasonableness section probably is precedential, but the opinion’s failure to be clear on that point is strange.

Joining Cowen was Fuentes; McKee dissented with some harsh language for the government. Arguing counsel were John Romano of the NJ US Attorney’s office for the government, Herbert Waldman of Javerbaum Wurgaft for the wife, and Louise Arkel of the NJ federal defender for the husband.


Knick v. Township — civil — affirmance — Smith

A Pennsylvania township enacted an ordinance that authorizes officials to enter any property “for the purpose of determining the existence of and location of any cemetery” and compels private cemeteries to open themselves to the public during daylight hours.

The Third Circuit described the ordinance as “extraordinary and constitutionally suspect,” noting “it is difficult to imagine a broader authorization to conduct searches of privately owned property” and urging the township to abandon it. But the court affirmed dismissal of a suit challenging the ordinance, holding that the plaintiff lacked standing to raise a facial Fourth Amendment challenge because her rights were not violated and that her Fifth Amendment takings claim is not ripe because she had not first sought compensation under the state’s inverse-condemnation procedure. (Embarrassingly, the court noted that the standing issue had not been raised by the township, and that it did raise a “curious” argument that the plaintiff failed to satisfy Monell because she failed to show a cognizable injury.) The opinion helpfully clarifies the different burdens for facial and as-applied challenges and distinguishes facial takings from facial challenges.

Smith was joined by McKee and Rendell. Arguing counsel were J. David Breemer of the Pacific Legal Foundation for the plaintiff and Thomas Specht of Marshall Dennehey for the township defendants.


Taha v. County — class action — affirmance — Greenberg

The Third Circuit affirmed an order granting class action certification in a suit against defendants who created a web page that made available information about over 60,000 people who had been held at a county jail, including persons whose records were expunged. The defendants had argued that the court erred in deciding certification after ruling on a motion for partial summary judgment, but the court held that this challenge was waived because it was not raised below. The defendants also argued that the court erred in certifying a punitive damages class on several grounds, including standing and predominance, but the court disagreed.

Joining Greenberg were Greenaway and Shwartz. Arguing counsel were Burt Rublin of Ballard Spahr for the county defendants and Robert LaRocca of Kohn Swift for the plaintiffs.

New opinion — maybe 69 phone calls over a $25 debt wasn’t such a hot idea

Daubert v. NRA Group — civil / consumer — reversal in part — Fisher

“This case,” today’s Third Circuit’s opinion begins, “— involving tens of thousands of dollars in statutory damages, half a jury trial, and cross-appeals — stems from a debt collector’s pursuit of $25 in unpaid medical bills.” After debt collector called a medical patient’s cellphone 69 times over 10 months (!), he sued them, alleging that they violated the Telephone Consumer Protection Act. He also alleged that the collection letters they sent him violated the Fair Dept Collection Practices Act. The district court granted summary judgment in the plaintiff’s favor on the TCPA claim, but granted judgment as a matter of law in the defendant’s favor on the FDCPA claim. Today, the Third Circuit affirmed on the TCPA but reversed on the FDCPA, handing the debt collector a total defeat.

Joining Fisher were Hardiman and Roth. Arguing counsel were Richard Perr of Fineman Krekstein and Carlo Sabatini of the Sabatini Law Firm. (The caption doesn’t say who represented whom, but their respective practice areas suggest that Perr represented the debt collector and Sabatini represented the plaintiff.)

Two new opinions

US v. Johnson — criminal — affirmance — Fuentes

The Third Circuit rejected a defendant’s argument that a district court lost jurisdiction to revoke his supervised release when a different district court revoked an unrelated concurrent term of supervised release. In rejected the argument that concurrent terms of supervised release merge, The court joined the Second and Fifth Circuits. The court also rejected the defendant’s argument that the district court lacked jurisdiction to revoke him because he was living in the other district and his release was being supervised by the other district.

Joining Fuentes were Greenaway and Shwartz. Arguing counsel were Omodare Jupiter of the VI FPD for the defendant and David White for the government.


Blanyar v. Genova Prods. — civil — affirmance — Vanaskie

The introduction says it best:

Appellants, former employees of Appellee Genova
Products Inc. (“Genova”), challenge the District Court’s
decision to dismiss their putative class action for medical
monitoring as barred by the applicable two year statute of
limitations. While acknowledging that their exposure to the
alleged toxic substances upon which they base their medical
monitoring claims ended more than two years before
commencing this litigation, Appellants contend that the
limitations period should have been tolled by the discovery
rule and should not have begun to run until they discovered
the toxicity of the substances present in the Genova
workplace, a discovery they claim was first made less than
two years before this action was initiated. The District Court
concluded that the discovery rule did not save Appellants’
action because information concerning the dangers of the
chemicals to which Appellants were exposed had been widely
available for decades before they filed their complaint. For
the reasons that follow, we will affirm the dismissal of
Appellants’ lawsuit.

Joining Vanaskie were Fisher and Krause. Arguing counsel were Sol Weiss of Anapol Weiss for the class plaintiffs and Justin Bagdady of Michigan for the class defendants.

Three new opinions

De Ritis v. McGarrigle — civil rights — reversal — Krause

The Third Circuit today emphatically rejected a former public defender’s claim that his First Amendment rights were violated when he told others that he had been transferred because he took too many cases to trial. The court reversed the district court’s denial of summary judgment based on qualified immunity. Among the court’s holdings was that an attorney’s idle chatter with other lawyers in court during breaks between proceedings is not protected by the First Amendment.

Krause was joined by Vanaskie and Nygaard. Arguing counsel were De Ritis pro se and Mark Raith of Holsten & Associates for the public defender.


Halley v. Honeywell Int’l — class action — affirmance in part — Scirica

The Third Circuit upheld approval of a $10 million class action settlement of a large chemical pollution suit. The court rejected several challenges to the settlement, including various arguments that the court lacked a sufficient factual record for approval. The court also upheld the $2.5 million attorneys’ fees award, but remanded for reconsideration of the award of costs because the lower court failed to adequately explain its reasoning.

Joining Scirica were Ambro and Vanaskie. Arguing counsel were Thomas Paciorkowski of Jersey City for the objector and Anthony Roisman of Vermont for the appellees.


Duquesne Light Holdings v. C.I.R. — tax — affirmance — Ambro

A divided Third Circuit panel today affirmed a tax-court ruling applying the Ilfeld doctrine that, absent clear Congressional intent, the tax code should not be interpreted to give taxpayers the equivalent of a double deduction. The tax-liability dispute here is, to my inexpert eye, arcane.

Joining Ambro was Krause; Hardiman dissented. Arguing counse were appellate powerhouse James Martin of Reed Smith for the taxpayer and Arthur Catterall for the government.

This should be interesting: a Porngate-related Third Circuit oral argument

On July 10, the Third Circuit panel of McKee, Ambro, and Restrepo will hear oral argument in Fina v. Miletto, No. 16-3311. The appeal arises from a suit brought by Frank Fina and other former state prosecutors and investigators alleging that convicted former Pa. AG Kathleen Kane violated their First Amendment rights during the Porngate scandal. Legal Intelligencer coverage of the district court’s dismissal is here.

Here is the appellant’s case summary:

Whether Kathleen Kane’s criminal misconduct, which was designed to coerce and silence plaintiffs criticisms of her while Kane was serving as the AG, constituted unlawful governmental retaliation for Plaintiffs protected exercise of free speech?

And the appellee’s:

Whether former AG Kathleen Kane violated the constitutional rights of the plaintiffs when she publicly criticized the work they did as criminal investigator and prosecutors and released pornography that they had maintained on the AG’s computer system.

Should be interesting.

Arguing for the appellants will be Mark Tanner of Feldman Shepherd; Edward Ellis of Littler Mendelson is arguing for the AG.

New opinion — a habeas reversal based on Martinez v. Ryan

Lambert v. Warden — habeas corpus — reversal — Ambro

The Third Circuit today held that an error by a habeas petitioner’s post-conviction counsel excused the procedural default of his claim that his trial counsel was ineffective. This is the court’s third major case applying Martinez v. Ryan, following Cox v. Horn in 2014 and Bey v. Superintendent earlier this year.

The appeal arose from a joint criminal trial of two defendants. The prosecution introduced evidence that the other defendant made certain statements to his psychiatrist, and at closing the prosecutor argued that those out-of-court statements helped prove this defendant’s guilt. Trial counsel didn’t ask for a limiting instruction based on this alleged Confrontation Clause violation. PCRA counsel didn’t argue that trial counsel was ineffective, explaining in a no-merit letter that the statements were party admissions.

The Third Circuit held today that the trial-ineffectiveness claim had some merit and that PCRA counsel was ineffective for not raising it, thus excusing under Martinez the default of the trial ineffectiveness claim. The court remanded for an evidentiary hearing on trial counsel’s ineffectiveness.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Cheryl Sturm of Chadds Ford, PA, for the petitioner and Catherine Kiefer of the Philadelphia DA’s office for the Commonwealth.

New opinion — fathers challenging NJ’s child-custody laws can’t sue judges

Allen v. DeBello — civil — affirmance — Fuentes

The Third Circuit today held that a 1983 challenge to New Jersey’s child-custody law that named New Jersey judges as defendants was barred by judicial immunity because judges making custody rulings are acting as judicial arbiters rather than enforcers. The plaintiffs are fathers who alleged that child-custody laws in practice favor mothers.

Joining Fuentes were Ambro and Shwartz. Arguing counsel were Paul A. Clark of Jersey City (whose website is unusual) for the fathers and Benjamin Zieman for the state.

New opinion — Third Circuit rejects couple’s challenge to tax levy

Hassen v. Government of the Virgin Islands — civil — affirmance — Shwartz

The Third Circuit today held that a Virgin Islands couple failed to plead a violation of 26 USC 7433(a) for wrongfully levying a property because their complaint rested on conclusory legal assertions without presenting facts to support them. The court noted that 7433(d) contains a mandatory-but-not-jurisdictional administrative exhaustion requirement.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were Alexander Golubitsky of Marjorie Rawls Roberts PC for the couple and Su-Layne Walker for the government.

ABA Journal follows up on the Bibas-nomination ad campaign

Yesterday I linked to a fascinating Legal Intelligencer story about advertisements being run by a PAC reportedly funded by the Koch Brothers urging readers to support the Third Circuit nomination of Stephanos Bibas.

Yesteday evening, the ABA Journal posted a story by Stephanie Francis Ward following up on the Legal Intelligencer story. The ABA Journal story reports that prominent law professor Arthur Hellman thought it “unusual that interests groups would spend money on a federal appellate seat.”

Provocatively, the article also includes speculation about whether judges would have to recuse themselves from cases involving parties who had supported, or opposed, their nominations. Offhand, I’d think a rule that judges must recuse from any cases where a party opposed their nomination is a terrible idea. Imagine if the NRA opposed every Democratic judge nominee: would that mean their cases are decided only by Republican judges?

“Koch Bros.-Linked PAC Runs Ad for Penn Law Prof’s 3rd Circuit Nomination”

The title of this post is the headline of a news report yesterday by Max Mitchell in the Legal Intelligencer. The report begins:

A political action committee named Concerned Veterans for America has begun running an ad asking readers to call their senators and urge a vote in favor of Stephanos Bibas, a Penn Law professor who was recently nominated to fill a vacancy on the U.S. Court of Appeals for the Third Circuit.

A PAC ad campaign supporting a circuit nomination the day it’s made? Seems unusual.

[UPDATE: Bibas was formally nominated yesterday.]

New opinion — Third Circuit upholds agency’s black-lung regulation

Helen Mining v. Elliott — administrative — affirmance — Krause

The Third Circuit today upheld a federal agency’s power to issue a regulation imposing on mine operators the burden of rebutting disability causation, and it upheld the agency’s award of black-lung benefits to a worker against a mine operator.

Joining Krause were Chevron-critic Jordan and Vanaskie. Arguing counsel were Christopher Pierson of Burns White for the mining operator, Heath Long of Pawlowski Bilonick for the worker, and Sean Bajkowski for the government agency.

By the way, seems like a flurry of Krause opinions lately, no? Turns out, of the Third Circuit’s last 11 published opinions, Judge Krause authored 4 of them, while no other judge wrote more than one. Interesting, but significant? It could well just be a random statistical blip, since she didn’t write any of the 11 published opinions before this.

“There are not many judicial nominees who were more prolific before being nominated to the bench” than Stephanos Bibas

The quote in the title is from this post today by Jonathan Adler at Volokh Conspiracy, entitled, “Professor Bibas writes letters (and lots of articles, too).”

Adler links to several letters to the editor Bibas had published in the New York Times. Somehow he omitted this classic, signed by college senior “Steven Bibas,” which begins, “As a college student who entered Columbia University at the age of 16 ….”

New opinion — a Delaware case with “a long and tortuous litigation trail”

Norman v. Elkin — civil — reversal in part — Jordan

After the two shareholders in a company disagreed over the majority shareholder’s actions, the minority shareholder sued. “It was the beginning of a long and tortuous litigation trail,” the Third Circuit explained today in an opinion that won’t end that trail:

We conclude that the District Court erred in concluding that tolling of the statute of limitations is categorically inappropriate when a plaintiff has inquiry notice before initiating a books and records action in the Delaware courts. Accordingly, we will send most of the claims back to the District Court to determine whether tolling should have applied and, if so, whether any of the claims are nevertheless time-barred. We also conclude that the District Court erred when it vacated the jury’s award of nominal damages for one of Norman’s breach of contract claims. Finally, we hold that Norman’s fraud claim was not supported by sufficient proof of damages and we thus affirm judgment as a matter of law on that claim on the alternative grounds that Elkin has proposed.

Two interesting points:

  • The opinion deemed waived two arguments that a party attempted to incorporate by reference from his district-court filings.
  • Judge Shwartz disagreed with the panel’s disposition of one of the issues, but instead of writing separately the opinion included a footnote noting her “different perspective on this point.”

Joining Jordan were Smith and Shwartz. Arguing counsel were David Felice of Bailey and Glasser for one side and Steven Caponi of Blank Rome for the other.

Supreme Court issues GVR in joint-forfeiture case from Third Circuit

The Supreme Court today granted certiorari, vacated, and remanded — a GVR, in Scotus-speak —  in a Third Circuit case.

The case is US v. Cynthia Brown. The Third Circuit’s non-precedential opinion is here. The GVR order is here. The basis for the GVR was Honeycutt v. US, in which the Supreme Court limited the availability of joint and several co-conspirator forfeiture liability.

Brown is represented by Peter Goldberger.

New opinion — Third Circuit hammers IJ for hostile asylum hearing

Serrano-Alberto v. AG — immigration — reversal — Krause

Appellate judging is a cerebral job. But good judges retain the capacity to be outraged by outrageous things. Today, the Third Circuit issued an opinion brimming with outrage, condemning the shabby way an immigration judge treated a man seeking asylum and remanding to give him a new chance to present his case.

The man seeking asylum was a famous El Salvadoran soccer player who was extorted for money by the MS13 gang. When he stopped paying, they began trying in earnest to kill him and his family. Eventually he fled to the U.S., was caught, sought asylum pro se, and got a hearing before longtime immigration judge Mirlande Tadal.

Today’s opinion recounted the asylum hearing in devastating detail, identifying the IJ by name and ultimately concluding that her conduct involved “a hostile and demeaning tone, a focus on issues irrelevant to the merits, brow beating, and continual interruptions.” Further: “the pervasiveness and egregiousness of the … problematic conduct here … evinced bias and created an intolerable atmosphere of intimidation.” On this record, the court held that the IJ’s conduct deprived the petitioner of his due process right to a fair hearing before an impartial arbiter.

Joining Krause were Vanaskie and Nygaard. Arguing counsel were Zachary Nightingale of California for the petitioner and Lindsay Murphy for the government.

Supreme Court denies certiorari to Troy Coulston, which sucks

A year ago, the Third Circuit issued a non-published per curiam opinion in an inmate-rights appeal. Even though I normally don’t blog about non-precedential opinions, I wrote a long and overwrought post about why I thought this one was unfair, peppered with sophisticated legal terms such as “wacky,” “ohbytheway,” and “hooey.” Future generations will remember it as the ‘shaking of my little fist’ post.

The Third Circuit thereafter denied rehearing, and today the Supreme Court denied certiorari.

Sorry, Mr. Coulston. I still think you were right.

New opinion — a Virgin Islands election case

Rodriguez v. 32nd Legislature — elections — affirmance — Shwartz

After a candidate was elected to the Virgin Islands Legislature, his former opponent filed a suit alleging that he was unqualified to serve because he had sworn under oath in a bankruptcy filing that he lived in Tennessee. The elected candidate removed that suit to federal court and filed one of his own, asking the court to declare that the qualification decision must be made by the legislature, not the courts. Today the Third Circuit held that, under Virgin Islands law and separation of powers principles, only the legislature could decide the qualifications of its members.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were Francis Jackson for the elected candidate, Terri Griffiths for the opponent, and Kye Walker for the legislature.

Early news coverage here.

“The contrast is stark. Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process.”

The title of this post is taken from this informative post by Harsh Voruganti on the Vetting Room. According to Voruganti, “Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.”

Judges extend eyewitness-identification task force

The Third Circuit’s task force on eyewitness identifications will continue its work beyond its original deadline. The task force was due to terminate tomorrow under the terms of the original order creating it, but the task force co-chairs — Judge McKee and District Judge Mitchell Goldberg — had the authority to extend it. Per an order signed by Judge D. Brooks Smith and posted today on the Third Circuit website, the task force “shall continue to function until such date as it prepares and releases a Final Report and the co-chairs agree that the work of the Task Force is completed.”

A first look at Third Circuit nominee Stephanos Bibas

Although the White House has so far announced only its intent to nominate Stephanos Bibas to the Third Circuit, US Senator Pat Toomey today released a statement that begins, “I am pleased that President Trump has nominated Stephanos Bibas to the Third Circuit Court of Appeals.” Toomey’s statement continues:

“Professor Bibas clearly has the intellect and the legal experience to be an excellent judge. In addition to serving as a Professor of Law at the University of Pennsylvania and as the Director of the University’s Supreme Court clinic, Professor Bibas clerked for Supreme Court Justice Anthony Kennedy, worked as an Assistant U.S. Attorney, and argued six cases before the Supreme Court of the United States. Most importantly, Professor Bibas understands that the proper role of a judge is to apply the law as written and to treat everyone who comes before him equally, not to impose his policy preferences from the bench or choose winners or losers.

“I believe that Professor Bibas will make an outstanding addition to the Third Circuit, and I hope that the Senate Judiciary Committee will move Professor Bibas’ nomination forward promptly so he can soon be confirmed by the full Senate.”

Pennsylvania’s other US Senator, Bob Casey, has not released a statement yet.

Penn Law School’s announcement features some illuminating quotes:

“I am deeply honored to have been nominated,” Bibas said. “I’ve had the great good fortune to learn from outstanding jurists, including Judge Higginbotham and Justice Kennedy, and have learned a tremendous amount from my colleagues and students at Penn Law. Penn has supported me in all that I’ve done: teaching generations of students, writing scholarship, litigating before the Supreme Court, and preventing wrongful convictions through the work of the Quattrone Center for the Fair Administration of Justice.”

* * *

“Those who will work with Stephanos Bibas in the Third Circuit will soon discover that he is an outstanding colleague,” said Tess Wilkinson-Ryan L’05, Professor of Law and Psychology. “I have enormous respect for his commitment to respectful, collegial discourse on even the most contentious topics. He is also a dedicated and conscientious mentor whose future clerks will be lucky to learn from him.”

“Professor Bibas has had wide experience as a prosecutor, teacher, scholar, and advocate in cases in the United States Supreme Court,” said David Rudovsky, Senior Fellow at Penn Law and a leading civil rights and criminal defense attorney. “In the area of criminal justice, Professor Bibas has shown a capacity to learn from experience, research, and empirical data, and he has developed a broadly based understanding of the dynamics — and the flaws — of the criminal justice system.”

Early conservative reaction to Bibas’s nomination has been glowing. In addition to Carrie Severino and Orin Kerr who I linked to yesterday, enthusiastic support has come from Jonathan Adler on Volokh Conspiracy (“impessive”), Guy Benson on Townhall, Ilya Shapiro at Cato (“outstanding”), David Lat on Above the Law (“a superstar of legal academia”), and Ed Morrissey at Hot Air (“Expect these nominees to get a very warm reception from conservatives ….”). Shapiro notes that Bibas is the faculty adviser for Penn’s Federalist Society chapter.

From the liberal side, Nan Aron of Alliance for Justice said yesterday that Bibas “has a history of troubling statements on criminal justice issues” and, along with others in this wave of judicial nominees, warrants “a high level of scrutiny.”

Bibas’s paper trail is simply gargantuan. A few starting points:

Bibas is a bold and fascinating choice. I can’t wait to see how this plays out.

Stephanos Bibas reportedly will be nominated for Third Circuit (updated)

The Washington Times reports that President Donald Trump today intends to nominate Stephanos Bibas for a Third Circuit judgeship. [My original post inaccurately stated that Trump reportedly nominated Bibas today.]

When Orin Kerr mentioned Bibas on Twitter as a potential Trump Third Circuit nominee, I thought, “not likely,” thereby demonstrating, once again, that I am no Trump mind reader.

More later.

UPDATE: early reaction from Orin Kerr on Volokh Conspiracy here and from Carrie Severino on National Review here. Severino gives Bibas’s age as “50 (approximate).” [UPDATE 3: actually Bibas is 47.]

UPDATE 2: The White House has confirmed that Trump today “announced his intent to nominate” Bibas.

New opinions — one habeas, one bankruptcy, both with appointed amicus counsel and both reversing [updated]

Vickers v. Superintendent — habeas corpus — reversal — Krause

The Third Circuit reversed a district court’s grant of habeas corpus relief, holding that trial counsel’s failure to secure an on-the-record waiver of his client’s right to a jury trial was deficient performance but that the defendant was not prejudiced given deference to state-court credibility findings. The opinion contains three other notable holdings: (1) that the state court’s ruling was not subject to 28 USC 2254(d)’s limitation on relief because it applied the wrong standard, (2) that prejudice was not presumed because the state court found that defendant had been informed of his jury-trial right, and (3) that the correct prejudice standard for cases like this is whether there was a reasonable probability that the defendant would have opted for a jury trial.

In a blistering footnote, the court catalogued the Washington County (PA) DA’s office’s “‘dereliction of duty'” during the habeas proceedings, noting that it was “deeply disturbed” and urging the office to act with “far greater diligence and professionalism.”

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Jerome Moschetta for the Commonwealth and David Fine of K&L Gates as amicus counsel for the petitioner. The opinion thanked Fine and his co-counsel Nicholas Ranjan for accepting the court’s appointment pro bono and for the quality of their briefing and argument.


In re: Ross — bankruptcy — reversal — Vanaskie

A homeowner facing foreclosure twice filed bankruptcy petitions to stave off the sheriff’s sale of the home. After the second filing, the district court entered an injunction barring him from future bankruptcy filings without its permission. The district court did not explain its reasoning for imposing this injunction, which was broader than what the bank had requested and broader than what the same court had imposed in a related, similar case.

The Third Circuit held that the bankruptcy code does not prohibit courts from entering filing injunctions after a debtor moves for voluntary dismissal, but that the broad injunction here was an abuse of discretion, noting that abuse-of-discretion review is less deferential when the challenged ruling below was unexplained.

Joining Vanaskie were Krause and Nygaard. Arguing counsel were Charles Hartwell of Dethlefs Pykosh (the firm’s name is misspelled in the caption) for the bank and former Stapleton clerk William Burgess of Kirkland & Ellis as court-appointed amicus for the debtor. The court expressed its gratitude to amicus for “valuable assistance.”

Three new opinions plus an en banc grant

In re: Zoloft — civil — affirmance — Roth

“This case involves complicated facts, statistical methodology, and competing claims of appropriate standards for assessing causality from observational epidemiological studies. Ultimately, however, the issue is quite clear.” So said the Third Circuit today, affirming a district court’s decision to exclude an expert witness in a high-stakes drug-liability case.

Joining Roth were Chagares and Restrepo. Arguing counsel were former assistant to the Solicitor General David Frederick of Kellogg Hansen for the appellants and Mark Cheffo of Quinn Emanuel for the appellees.


US v. Fattah Jr. — criminal — affirmance — Smith

In this latest chapter in the Chip Fattah saga, the Third Circuit ruled that while an FBI agent’s media disclosures about Fattah were wrongful, Fattah was not entitled to relief.

Joining Smith were Hardiman and Krause. Arguing were Eric Gibson for the government, Fattah for himself, and Ellen Brotman as amicus appointed by the court for Fattah. The court thanked Brotman for her “excellent advocacy” which the court noted she provided on an expedited basis.


Gillette v. Prosper — prisoner civil rights / jurisdiction — dismissal — Hardiman

The Third Circuit dismissed for lack of jurisdiction a prisoner’s interlocutory appeal challenging denial of his request under the PLRA that his case be decided in district court by a three-judge court.

Joining Hardiman were Chagares and Jordan. Arguing counsel were Joseph DiRuzzo III for the prisoner and Kimberly Salisbury for the warden.


US v. Douglas

The Third Circuit granted rehearing en banc in US v. Douglas, with oral argument “limited to the application of the enhancement for abuse of position of trust under U.S.S.G. 3B1.3.” My coverage of the now-vacated panel ruling is here — Judge Greenaway had dissented from the panel majority’s holding on this point.

New opinion — Third Circuit approves post-expiration grace periods in bankruptcy

In re: Klaas — bankruptcy — affirmance — Krause

Here is the opening paragraph from today’s Third Circuit opinion deciding an interesting little question of bankruptcy procedure:

The Bankruptcy Code sets certain limits on the amount of time that debtors may be required to remain in Chapter 13 proceedings and make payments on their debts. This case presents two questions of first impression among the Courts of Appeals: whether bankruptcy courts have discretion to grant a brief grace period and discharge debtors who cure an arrearage in their payment plan shortly after the expiration of the plan term, and if so, what factors are relevant for the bankruptcy court to consider when exercising that discretion. Because we conclude the Bankruptcy Code does permit a bankruptcy court to grant such a grace period and the Bankruptcy Court did not abuse its discretion in granting one here, we will affirm the rulings of the District Court, which in turn affirmed the relevant order and judgment of the Bankruptcy Court.

The court observed that post-expiration arrearages appeared to be a recurring problem, and it criticized the Chapter 13 trustee’s handling of the problem here.

Joining Krause were Fisher and Vanaskie. Arguing counsel were Aurelius Robleto of Pittsburgh for the appellant, Phillip Simon for two appellees, and Owen Katz for the appellee trustee.

New opinion — Third Circuit clarifies preliminary-injunction standard

Reilly v. City of Harrisburg — civil — reversal — Ambro

The Third Circuit today clarified the standard for granting preliminary injunctions. It’s always been clear that the preliminary injunction test has 4 pieces — (1) probability of success, (2) irreparable injury, (3) harm to others, and (4) public interest — but circuit caselaw has been contradictory about how the burden of proof works. Some cases said the movant has the burden of proving only the first two, while others said the movant must prove all four.

Today, the court held that the movant has the burden of proving only the first two parts of the test. It reasoned that this rule predated the must-prove-all-four cases and thus was binding under the rule that later panels can’t overrule earlier ones. It also reasoned that a contrary result wasn’t required by the Supreme Court’s 2008 statement that  “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

The underlying case arose from a challenge against Harrisburg’s 20-foot health-care buffer-zone ordinance brought by “sidewalk counselors” who seek to dissuade women from getting abortions. Despite the incendiary nature of the underlying suit, I read today’s opinion as entirely non-ideological and limited to cleaning up how the preliminary-injunction standard works.

Joining Ambro were Jordan and Roth. Arguing counsel were Horatio Mihet of Liberty Counsel for the movants and Joshua Autry of Lavery Faherty for the appellees.

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 The bill naming the courthouse after him followed shortly after – – 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 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.


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 independence 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 distributor’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 manufacturer and J. Michael Baggett of McCann Garland for the appellant distributor.

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 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 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

UPDATE: This panel opinion was vacated when the court granted en banc rehearing.

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.



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

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, 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: 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 nice 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. 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 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 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, 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 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 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