New opinions

The Third Circuit issued 2 published opinions today, 2 yesterday, 7 on Tuesday, and 1 Monday. Offhand I can’t remember the court ever cranking out 7 opinions in a single day before. (UPDATE: “only” 5 opinions, actually; one was an order amending and one an order granting panel rehearing). In this post I’ll summarize the opinions issued today and yesterday, and (hopefully!) I’ll get the rest in a later post.

Sierra Club v. EPA — environmental — reversal — McKee (8/27)

The Third Circuit today ruled in favor of the Sierra Club in their challenge to Pennsylvania’s too-lax proposed standards for pollution from coal-burning power plants.

Joining McKee were Bibas and Nygaard. Arguing counsel were Charles McPhedran of Earthjustice for the challengers, Brandon Adkins for the federal government, and Jesse Walker for the state.


Campbell v. Pa. School Boards Assoc. — civil — affirmance — McKee (8/27)

An anti-union activist made controversial online statements and filed an avalanche of records requests, all targeting Pa. school boards and their association. When the school-boards association countered by suing the activist in state court, the activist sued the association in federal court, alleging that the state suit amounted to First Amendment retaliation. The association argued that the Noerr-Pennington doctrine shielded it from liability for filing the state suit.

Today, the Third Circuit upheld summary judgment in favor of the school-district association. It held that the district court erred by requiring the activist to make his Noerr-Pennington showing by clear and convincing evidence, but it nevertheless held that the activist failed to show by a preponderance that the association intended the process (as opposed to the result) of the state suit as a weapon against the activist.

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


Rosen v. Superintendent Mahanoy SCI — habeas corpus — affirmance — McKee (8/26)

This habeas appeal is about the prosecution’s use at a retrial of a defendant’s statements to a prosecution expert made before the original trial. At Rosen’s original trial in Pa. court for murdering his wife, his defense was diminished capacity. Presenting that defense obliged Rosen to submit to a mental-health evaluation by the prosecution’s expert. Rosen was convicted but obtained a new trial on appeal.

At the re-trial, Rosen did not present a mental-health defense. Instead, he planned to testify in his own defense that he hadn’t premeditated or intended to kill his wife. But the trial court ruled that, if he testified, the prosecution could rebut his testimony with his prior statements to the prosecution’s expert. He didn’t testify and was convicted, and his state-court appeals failed.

In federal habeas, Rosen argued that allowing the prosecution to rebut his testimony with his statements to the prosecution expert  violated his Fifth Amendment right to silence. The Third Circuit disagreed, holding that, regardless of the merit of his claim, habeas relief was foreclosed by AEDPA’s limitation on relief because no Supreme Court holding spoke clearly enough to this situation.

Joining McKee were Ambro and Phipps. Arguing counsel were Karl Schwartz of Wiseman & Schwartz for the petitioner and Adrienne Jappe of the Montgomery County D.A.’s office for the commonwealth.


In re: Tribune Co. — bankruptcy — affirmance — Ambro (8/26)

When a media conglomerate declared bankruptcy, its creditors battled over who got paid. One group of creditors argued that their bankruptcy claims had higher priority than certain other creditors because they’d made a deal to that effect, known as a subordination agreement. One provision in bankruptcy law, § 510(a) says that bankruptcy courts enforce subordination agreements the same way that other courts do. But another provision, colorfully known as cram-down, says that sometimes courts can require creditors to accept a resolution of their claims that doesn’t unfairly discriminate “[n]otwithstanding section 510(a).”

The main issue in this appeal is what the notwithstanding phrase means: a group of creditors argued that the bankruptcy court could not cram down a plan that failed to enforce to subordination deal. In a factually and legally dense opinion, the Third Circuit disagreed, holding that a cramdown is not required to strictly enforce subordination agreements and that the plan’s allocation of payment among the creditors did not unfairly discriminate.

Joining Ambro were Krause and Bibas. Arguing counsel were Roy Englert, Jr. of Robbins Russell for the creditor challengers, James Johnston of Jones Day for the media conglomerate, and Jay Teitelbaum of New York for competing creditors.