Last week I was on vacation. During slow periods it’s not all that rare for the Third Circuit to go a week without issuing a single published opinion. But July/August is never a slow period — that’s when clerkships typically end, so everyone is scrambling to clear the decks. Last week the court issued 10 precedential opinions, 5 on Friday alone.
And there were some big ones, including a hot-button Affordable Care Act case and reversals in criminal, habeas, immigration, and prisoner civil rights cases. But enough wind-up …
US v. Wrensford [July 31] — criminal — reversal in part — Shwartz
The Third Circuit held that a defendant was arrested for Fourth Amendment purposes when he was involuntarily taken to a police station and held in a cell. Seems obvious, but the district court ruled to the contrary. The court vacated his criminal conviction and remanded. The court affirmed a co-defendant’s convictions on various grounds.
Joining Shwartz were Greenaway and Fuentes. Arguing counsel were FPD Omodare Jupiter for the prevailing appellant, Martial Webster for the other appellant, and Rhonda Williams-Henry and David White for the government.
Haskell v. Superintendent [August 1] — habeas corpus — reversal — Ambro
In this significant habeas corpus opinion, the Third Circuit held that a petitioner who has established a reasonable likelihood that the prosecution’s knowing use of false evidence could have affected the outcome need not also show that the error was not harmless. (Or, for my fellow habeas nerds, once you clear Napue you don’t have to clear Brecht too.) On the merits, the court reversed the district court’s denial of relief. Appallingly, the district court had not even granted a certificate of appealability.
Joining Ambro were Vanaskie and Restrepo. Arguing counsel were AFPD Elisa Long for the appellant and Mark Richmond of the Erie DA’s office for the Commonwealth.
EEOC v. City of Long Branch [August 2] — civil procedure — reversal — Chagares
The Third Circuit summarized its decision vacating a district court ruling in an EEOC enforcement suit thus:
The EEOC raises two issues on appeal: (1) whether Long Branch is precluded from contesting the motion to enforce because it failed to exhaust its administrative remedies ***, and (2) whether the EEOC may disclose information from the noncharging parties’ employment and personnel records to Lt. Johnson ***. Despite the compelling nature of these issues, we will not reach them because of a procedural error committed by the District Court: the District Court erroneously treated the motion to enforce that the Magistrate Judge had reviewed as a nondispositive motion instead of a dispositive motion. This is a meaningful distinction under the Federal Magistrates Act, 28 U.S.C. § 631, et seq., as the categorization of motion dictates, inter alia, the level of authority with which a magistrate judge may act on a motion and the availability and standard of review afforded by the District Court and our Court.
Joining Chagares were Ambro and Fuentes. The case was decided without oral argument.
Ildefonso-Candelario v. AG [August 3] — immigration — reversal — Stearns
The Third Circuit held that a conviction under Pennsylvania’s obstruction-of-justice statute, 18 Pa. Cons. Stat. 5101, is not categorically a crime involving moral turpitude because it sweeps in non-fraudulent conduct. The court firmly rejected the government’s request to remand without decision to let the BIA reconsider its ruling.
Joining Stearns (D. Mass., sitting by designation) were Jordan and Krause. Arguing counsel were Daniel Conklin of the Shagin Law Group for the petitioner and Rebecca Phillips for the government.
Blackledge v. Blackledge [August 3] — family — affirmance — Krause
The Third Circuit rejected a father’s appeal from denial of his petition alleging that the mother violated an international treaty by retaining custody of their son.
Joining Krause were Ambro and Nygaard. Arguing counsel for the father was former Fisher clerk M. Patrick Yingling of Reed Smith; Barbara Ernsberger of Behrend & Ernsberger argued for the mother. The opinion thanked the father’s counsel for accepting the court’s appointment in the case and for their “excellent briefing and argument.”
Millhouse v. Heath [August 4] — prisoner civil rights — reversal — Cowen
The mean-spirited Prison Litigation Reform Act contains a provision — the PLRA’s three strikes rule — that poor prisoners cannot qualify for the same reduced filing fees as any other poor litigants if they previously filed three or more prisoner suits that were deemed frivolous, because it’s so fair to punish people who are poor and lawyer-less for not accurately assessing the strength of their potential legal claims.
Last week, a partially divided Third Circuit panel held that a prisoner was entitled to file in forma pauperis despite having more than 3 prior suits dismissed as frivolous because (1) the number of PLRA strikes must be assessed as of the time the notice of appeal is filed and (2) dismissals without prejudice for failure to state a claim do not count as strikes. Judge Ambro disagreed on both points but would have reached the same result through equitable tolling.
Joining Cowen was Restrepo, with Ambro dissenting in part. Arguing counsel were Stephen Fogdall of Schnader Harrison for the prisoner and Timothy Judge for the government. The opinion thanked Fogdall and his Schnader co-counsel Emily Hanlon for their “excellent work” as pro bono counsel appointed by the court.
US v. Ferriero [August 4] — criminal — affirmance — Scirica
The Third Circuit affirmed the conviction and sentence of a New Jersey county politico convicted of violating the Travel Act, RICO, and the wire fraud statute by lobbying on behalf of commercial clients without disclosing his own financial interest. In a lengthy opinion, the court rejected various challenges to the convictions, including the defendant’s quite plausible-sounding argument that failing to disclose his interest cannot constitute making a false or fraudulent misrepresentation under the wire fraud statute. The court also rejected the defendant’s arguments relying on McDonnell v. United States.
Joining Scirica were Hardiman and Rosenthal SD Tex by designation. Arguing counsel were Peter Goldberger for the defendant and Bruce Keller for the government.
US v. Chapman [August 4] — criminal — affirmance — Greenaway
The Third Circuit held that a conviction for mailing a threat to injure constitutes a crime of violence under the Sentencing Guidelines. Judge Jordan concurred “to express dismay at the ever-expanding application of the categorical approach.”
Joining Greenaway were Jordan and Rendell. Arguing counsel were Ronald Krauss of the MDPA federal defender for the defendant and unfairly blocked Third Circuit nominee Rebecca Ross Haywood for the government.
In re: AE Liquidation [August 4] — civil — affirmance — Krause
The opinion’s introduction says it best:
This case arises from the bankruptcy and subsequent
closing of a jet aircraft manufacturer, and requires us to assess
that manufacturer’s obligation under the Worker Adjustment
and Retraining Notification (WARN) Act, 29 U.S.C. §§
2101-2109, to give fair warning to its employees before
effecting a mass layoff. On appeal, we are asked to determine
whether a business must notify its employees of a pending
layoff once the layoff becomes probable—that is, more likely
than not—or if the mere foreseeable possibility that a layoff
may occur is enough to trigger the WARN Act’s notice
requirements. Because we conclude that a probability of
layoffs is necessary, and the manufacturer has demonstrated
that its closing was not probable until the day that it occurred,
it cannot be held liable for its failure to give its employees
requisite notice. Accordingly, we will affirm ***
Joining Krause were Fisher and Greenberg. Arguing counsel were Jack Raisner of New York for the appellants and Barry Klayman of Cozen O’Connor for the appellees.
Real Alternatives v. Secretary DHHS [August 4] — civil — affirmance — Rendell
A sharply split Third Circuit panel held last week that a secular anti-abortion group with no religious affiliation was not entitled to the same exemption as houses of worship from the Affordable Care Act’s requirement that employer-provided health insurance include contraceptive services. The court also held that employees’ religious beliefs are not substantially burdened by the ACA’s contraception mandate. The majority answered both questions “[a]fter careful review, but without any hesitation.” A petition for certiorari seems a certainty and I sure wouldn’t bet against a grant.
Joining Rendell was Greenaway. Jordan dissented as to the rejection of the employees’ claims. Both authors are at the top of their game. Arguing counsel were Matthew Bowman of Alliance Defending Freedom for the employer and employees and Joshua Salzman for the government.