Four new opinions, including an ACA blockbuster

Commonwealth of Pa. v. President United States of America—civil—affirmance—Shwartz

The Third Circuit on Friday upheld a preliminary injunction blocking the Trump administration’s effort to provide major exemptions to the ACA’s contraceptive-care requirement. Pennsylvania and New Jersey challenged the administration’s attempted action under the Administrative Procedures Act. The Third Circuit held that the states had standing given their costs for state-funded health care resulting from lack of access to contraception. On the merits, the court held that the administration violated the APA by proceeding without notice-and-comment procedures, that its action was neither authorized by the ACA nor required by RFRA, and that the district court did not abuse its discretion by entering a nationwide injunction. Without a doubt this is one of the Third Circuit’s highest profile recent opinions. (And the panel was impressively quick for a major case, issuing the opinion less than two months after oral argument.)

I imagine the government is certain to seek Supreme Court review; it may seek rehearing en banc first, but I’d predict the odds are against it being granted. Stay tuned.

Joining Shwartz were McKee and Fuentes. Arguing counsel were Michael Fischer, chief deputy for impact litigation for the Pa. AG’s office, for the states; Hashim Moopan for the government (who in the linked profile lists his daily habit as reading How Appealing); and Mark Rienzi of the Becket Fund for Religious Liberty for intervenors.


Tilija v. AG—immigration—reversal—Greenaway

The Board of Immigration Appeals improperly denied a Nepali petitioner’s motion to remand his removal proceeding, the Third Circuit held. The BIA failed to accept his new evidence as true, and under the correct standard the man successfully made a prima facie claim for remand.

Joining Greenaway were Shwartz and Bibas. Arguing counsel were Rachel Horton of Schnader Harrison for the petitioner and Andrew Oliveira for the government.


U.S. v. Blunt—criminal—reversal—Restrepo

A husband and wife were convicted of benefits fraud after a joint trial, and on appeal they argued that the district court erred in denying their motions to sever. The Third Circuit agreed, vacating both defendants’ convictions: the husband’s because he was prejudiced by his wife’s otherwise-inadmissible testimony, and the wife’s because she was forced to choose between her privilege against testifying against her spouse and her right to testify in her own defense.

Joining Restrepo were Smith and McKee. Arguing counsel were Jennifer Wilson (whose MDPA nomination is pending before the full Senate) for the wife, former Fisher clerk Quin Sorenson of the MDPA defenders for the husband, and Kim Daniel for the government.


Nkomo v. AG—immigration—affirmance—Hardiman

The Third Circuit rejected an immigration petitioner’s argument that the immigration judged lacked jurisdiction over her removal proceedings because the notice to appear failed to specify the time and place of the hearing. It also rejected her challenges to removal on the merits.

Joining Hardiman were Chagares and Siler CA6 by designation. The appeal was apparently decided without oral argument.