New opinions — a riposte on equitable mootness, plus 3 cases

In re: Tribune Media Co. — bankruptcy — reversal — Ambro

Two appellants challenged the Tribune Company’s bankruptcy reorganization plan, and the district court held that both challenges were equitably moot. Yesterday, the Third Circuit held that one challenge was equitably moot but that the other was not because their challenge would not disrupt the reorganization or harm third parties who have relied on it.

The holding is important for bankruptcy lawyers, but this is a fascinating case for other CA3 lawyers, too. Here’s why: just a month ago, Judge Krause — the court’s newest judge — issued a provocative and forceful opinion in In re: ONE2ONE urging her colleagues to abolish (or, failing that, modify) its equitable mootness doctrine.

In Tribune Media, Ambro responds directly to Krause, with a separate concurrence to his own majority opinion. (Vanaskie joins, Shwartz doesn’t.) Ambro acknowledges that Krause’s concurrence is well-crafted, but responds over 11 remarkable pages with a point-by-point rebuttal to her arguments against equitable mootness. If Krause’s opinion read like a petition for en banc review, and Ambro’s reads like a response in opposition. It’s a rare dialogue.

As noted, Vanaskie and Shwartz joined Ambro’s main opinion and Vanaskie joined his concurrence. Arguing counsel were appellate superstar Roy Englert for the challengers (one of the lawyers on the brief was Mark Stancil, an appellate star in his own right who clerked for the same Tenth Circuit judge I did) and James Johnston for the debtor.


Hansler v. Lehigh Valley Hosp. Network (panel rehearing) — FMLA — reversal — Fuentes

The Third Circuit granted panel rehearing and issued a new opinion in this FMLA case, originally decided in June. Before the panel was split, with Roth dissenting; now the panel was unanimous. While the outcome remained the same, the court changed language in the opinion. For example, where the old opinion said, “Lehigh Valley violated the Medical Leave Act,” the new one says, “Hansler has stated a claim that Lehigh Valley violated the Medical Leave Act.”


Jones v. SEPTA — employment — affirmance — Hardiman

The Third Circuit held that, under Title VII’s substantive discrimination provision, suspension with pay is not an adverse employment action.

Joining Hardiman were Greenaway and Krause. The case was decided without argument.


Chavez v. Dole Food Co. — jurisdiction — affirmance — Nygaard

A divided Third Circuit panel upheld a district-court order dismissing a suit with prejudice based on the first-filed rule, relying in part on its view that the “party’s forum shopping [wa]s so clearly on display.”

Nygaard was joined by Greenaway; Fuentes dissented, arguing that the majority created a circuit split. Arguing counsel were Jonathan Massey for the appellants, Caitlin Halligan for one appellee, and Steven Caponi (the only non-Scotus clerk who argued) for a second appellee.