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

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


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

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

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

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


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

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

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

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

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

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

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

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