Another BIA reversal, a unanimous en banc ruling, and two more

The Third Circuit issued significant rulings today and yesterday, including an en banc ruling yesterday. Please pardon my uninsightful post about them, I’m too busy now to give them the attention they deserve.


Doe v. A.G.—immigration—reversal—Restrepo

Petitioner fled his home country of Ghana and entered the United States without authorization after his father and neighbors assaulted him and threatened his life when they discovered that he was in a same-sex relationship. Petitioner seeks asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection from removal under the Convention Against Torture (CAT), because he fears being persecuted or tortured on account of his sexual orientation and identity as a gay man if returned to Ghana – a country that criminalizes same-sex male relationships and has no proven track record of combatting widespread anti-gay violence, harassment and discrimination. The Immigration Judge (IJ) denied his application and ordered his removal, and the Board of Immigration Appeals (BIA) affirmed.

He now petitions this Court for review of the BIA’s final decision. He argues that the BIA erred in finding, among others, that he had not suffered past persecution and did not have a well-founded fear of future persecution. For the following reasons, we will vacate the BIA’s decision and remand for further proceedings consistent with this opinion.1

Joining Restrepo were Roth and Fisher. Arguing for the petitioner were law school students Paige Beddow and Scott Cain, while Jonathan Ross argued for the government. The court ” acknowledge[d] and thank[ed] the instructors and students from the Immigration Law Clinic at West Virginia University College of Law for their skillful pro bono representation of the petitioner in this appeal.”

[Note: on April 16 the court issued an amended opinion to remove the petitioner’s name. I’ve updated the post and the link.]


U.S. v. Savage—criminal—affirmance—Fuentes

Appellant, Kaboni Savage, was convicted of drug
offenses, money laundering, and witness tampering in 2005.
For those crimes, he was sentenced to 30 years’ imprisonment,
a special assessment of $1,400, and a fine of $5,000. The fine
has been periodically collected from Savage’s prison trust
account by the Federal Bureau of Prisons under the Inmate
Financial Responsibility Program. Pursuant to 18 U.S.C.
§ 3572(d)(3), Savage asked the District Court to modify his
judgment and provide that installment payments be made
directly to the court on a fixed schedule, based on a material
change in his economic circumstances. The issue before us is
whether the District Court properly denied Savage’s motion to
modify his fine payment schedule for a lack of jurisdiction
under § 3572(d)(3). For the reasons that follow, we conclude
that the District Court properly denied Savage’s request based
on a lack of jurisdiction.

Joining Fuentes were Shwartz and Fisher. The appeal was decided without oral argument.


Physicians Healthsource v. Cephalon—civil—affirmance—Greenaway, Jr.

In this digital age with myriad forms of communication, faxes no longer dominate, as they once did. Yet, faxes are the focus of our attention today. Although complicated by a phalanx of parties, the essence of this dispute is whether a pharmaceutical company violated a federal statute by impermissibly sending two faxes to a doctor.

The plaintiff-appellant in this case is Physicians Healthsource, Inc. (“PHI”), the prior employer of the doctor, who was the recipient of the faxes. The appellees in this case are Cephalon, Inc., Cephalon Clinical Partners, L.P., and Cephalon Development Corporation (collectively “Cephalon”), and SciMedica Group, LLC and SciMedica Group Marketing Research and Consulting, LLC (“SciMedica” collectively with
Cephalon “Defendants”).1 Cephalon drug representatives met with the PHI doctor on multiple occasions to discuss various pharmaceutical drugs. The two faxes in dispute were sent to the PHI doctor on behalf of Cephalon.

PHI believes these faxes were unsolicited and thus sent in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), Pub. L. No. 102-243, 105 Stat. 2394, as amended by the Junk Fax Prevention Act of 2005 (“JFPA”), Pub. L. No. 109-21, 119 Stat. 359 (codified as amended at 47 U.S.C. § 227, collectively referred to herein as the “TCPA”). Additionally, PHI argues that if the faxes are found to be solicited, they nevertheless violated the TCPA by failing to include opt-out language.

The District Court granted summary judgment in favor of Defendants, finding that there was no genuine dispute of material fact that the faxes were solicited and that the TCPA does not require solicited faxes to contain opt-out notices. For the reasons detailed below, we will affirm.

Joining Greenaway, Jr., were Porter and Cown. The appeal was decided without oral argument. Decided 3/30.


Riccio v. Sentry Credit—civil—affirmance—Smith (en banc)

This case presents a question of statutory
interpretation: does 15 U.S.C. § 1692g(a)(3) allow debtors
to orally dispute a debt’s validity?

It also presents a question of stare decisis: should our
en banc Court resolve a circuit conflict by overturning a
three-decades-old panel decision which has been eroded
by intervening Supreme Court authority?

Because we answer both questions affirmatively, we
will overrule Graziano v. Harrison’s contrary
interpretation of § 1692g(a)(3) and affirm.

The en banc court’s ruling was unanimous. Arguing counsel were Joseph Jones of Jones Wolf for the appellant and Jacob Cohn of Gordon Reese for the appellee. Decided 3/30.