Catching up on 11 Third Circuit opinions

The Third Circuit has issued 11 opinions since my last blog post two and a half weeks ago. From any readers who use my blog to keep current on the court’s precedential opinions, I beg forgiveness. I’ve been buried under an avalanche of pro bono COVID-19 litigation and am only today emerging blinking into the sunlight, and likely not for long. So let’s not tarry.


PPG Industries v. U.S.—civil / environmental—affirmance—Fisher [May 4]

The federal government’s control of a chemical plant during the two world wars does not render it liable to the plant’s current owners for environmental clean-up costs under CERCLA.

Joining Fisher were Restrepo and Roth.


Advanced Fluid Systems v. Huber—civil—affirmance—Jordan [April 30]

The Third Circuit affirmed a judgment under Pennsylvania’s Trade Secrets Act arising from a “sorry story of disloyalty and deception piled upon deception” involving an employee who stole information from his employer. The appellants argued that the employer couldn’t prevail under the TSA because it did not own the trade secrets, but the Third Circuit held that lawful possession was enough.

Joining Jordan were Greenaway, Jr., and Krause.


N.J. Coalition of Automotive Retailers v. Mazda Motor—civil—reversal—Greenberg [April 28]

The Third Circuit reversed a district court’s ruling that an auto-dealer trade association lacked standing to sue an automaker under New Jersey’s Franchise Protection Act.

Joining Greenberg were Jordan and Restrepo.


Calderon-Rosas v. A.G.—immigration—reversal—Krause  [April 27]

In what looks to be a major immigration-law ruling, the Third Circuit held that (1) it has jurisdiction over ineffective-assistance-of-counsel claims by immigration petitioners seeking  discretionary cancellation of removal and asylum (an issue on which the circuits are split) and, on the merits, (2) the petitioner here was denied effective assistance in proceedings before the Immigration Judge and this entitles him to remand to re-open the removal-cancellation proceeding.

Joining Krause were Greenaway, Jr., and Restrepo. Arguing counsel were Petra Fist of P&D Solutions for the petitioner and Christin Whitacre for the government.


Dooley v. Wetzel—prisoner rights—reversal—Rendell [April 27]

A district court when it dismissed a pro se prisoner’s complaint sua sponte and without leave to amend and declared that the dismissal counted as a strike against him under the Prison Litigation Reform Act.

Joining Rendell were Jordan and Scirica.


U.S. v. Sims—criminal / sentencing—affirmance—Hardiman [April 24]

The base offense level for conspiracy to commit sex trafficking by force, fraud, or coercion, 18 USC 1594(c), is level 34, the base offense level of the underlying substantive crime, the Third Circuit held, splitting with the Ninth Circuit.

Joining Hardiman were Greenaway, Jr., and Bibas.


Ali v. Woodbridge Twp.—civil / employment discrimination—affirmance—Greenaway, Jr. [April 22]

The Third Circuit denied an appeal brought by a Muslim man who was fired after (1) he included in his high school history lesson about 9/11 a Saudi Daily article that said the U.S. was responsible for the attacks and which contained a inks to an anti-Semitic article and (2) students in his class submitted Holocaust-denying papers.

Joining Greenaway, Jr., were Jordan and Krause.


In re: Lamictal Direct Purchaser Antitrust Litig.—antitrust—reversal—Ambro [April 22]

The Third Circuit held that a district court erred in granting class certification in an antitrust case without conducting a “rigorous analysis of the competing expert reports that rely on competing evidence and assume competing facts” and incorrectly conflating injury with damages.

Joining Ambro were Krause and Phipps.


Hope v. Warden York County Prison—habeas—Smith [April 21]

After a district court entered a temporary restraining order that directed the immediate release of 20 immigration detainees due to COVID-19 risk, the government appealed. The detainees argued that the Third Circuit lacked jurisdiction to hear an appeal from a TRO, but the Third Circuit disagreed. While normally a TRO is not immediately appealable, the TRO here was appealable because it mandated affirmative relief (release) instead of preserving the status quo and because “there is a substantial possibility that the petitioners’ release will result—if it has not already—in serious and potentially irreversible consequences.” The opinion was limited to the question of appellate jurisdiction and did not reach the merits.

Joining Smith were Hardiman and Scirica.


Fogle v. Sokol—civil rights—partial reversal—Matey [April 20]

The introduction:

Lewis James Fogle spent more than three decades in
prison for a crime he says he did not commit. Now free, he
alleges that his incarceration was no accident, sketching a
widespread conspiracy by law enforcement officials to violate
his civil rights. Implicated in this alleged scheme are former
Indiana County District Attorney Gregory Olson, former
Indiana County Assistant District Attorney William Martin,
and their one-time employer, Indiana County. They all raise
the shield of absolute immunity, a judicially created exception
to 42 U.S.C. § 1983. But the immunity from civil liability
enjoyed by prosecutors hinges on the sanctity of our judicial
process, not “any special esteem.” Kalina v. Fletcher, 522 U.S.
118, 127 (1997) (internal quotation marks omitted). And so
only truly prosecutorial functions, not investigative conduct,
justify complete protection from suit. Fogle’s complaint
alleges acts by Olson and Martin that, taken as true, fall outside
the narrow doctrine of absolute immunity and survive a motion
to dismiss. Fogle’s claims against Indiana County survive too
because there is no exception to the final judgment rule
allowing us to review municipal liability in this appeal. Thus,
we will affirm the District Court’s order denying Olson and
Martin’s motion to dismiss based on absolute immunity and
dismiss Indiana County’s appeal for lack of jurisdiction.

Joining Matey were Krause and Quiñones Alejandro EDPA by designation.


James v. NJ State Police—civil rights—reversal—Porter [April 21]

The Third Circuit reversed a district court’s denial of qualified immunity for a police officer who shot and killed a man with schizophrenia who did not immediately obey the officer’s command to drop a weapon that the schizophrenic man was pointing at his own head.

Joining Porter were Hardiman and Phipps.