Category Archives: Cases

New opinion — Third Circuit sides with insurer in asbestos-coverage fight, again rejecting an asserted waiver

General Refractories v. First State Insurance — insurance — reversal — Vanaskie

If you made a list of the most fun things about being a circuit judge, I suspect that “reviewing the district court ruling of a judge who since has become your colleague on the appeals court” would be pretty far from the top.  But it happens, and yesterday it resulted in a unanimous reversal in an asbestos-insurance-coverage appeal.

The dispute arose from a Pennsylvania insurance policy that excluded losses “arising out of asbestos.” The policyholder argued that this only excluded losses related to raw asbestos, not asbestos-containing products. The insurer argued it excluded both.

The district court — Judge Restrepo, before his 2016 elevation to the Third Circuit — sided with the policyholder, ruling that “asbestos” was ambiguous and that the insurer’s asserted exclusion of asbestos-product liability was unenforceable. But yesterday the Third Circuit reversed, holding that, even if “asbestos” meant only raw asbestos, under PA law the words “arising out of” unambiguously encompassed all losses that would not have occurred but for the raw asbestos, thus including asbestos-product losses.

For the second time in less than a week, the court (indeed, the exact same panel) grappled with whether to rest its holding on a position not asserted below, and again it took the more assertive route. The policyholder argued that the insurer waived its but-for causation argument by not raising it below, instead focusing on the meaning of the word asbestos. The Third Circuit ruled that the two arguments were close enough, and alternatively that, even if the causation argument were waived, this was an exceptional circumstance where the public interest would require it to be heard. “Were we to ignore the consistent and explicit meaning assigned to the phrase in Pennsylvania insurance exclusions,” it said, “we would cast doubt on a tradition of interpretation that many parties have relied upon in defining their contractual obligations.”

It’s hard to be sure from the opinion how sound its no-waiver ruling is, but I think the alternative public-interest ruling is wrong. One sentence — “The causation argument is waived so we don’t reach it and nothing in today’s opinion casts doubt on PA’s well-settled rule” — would have protected state law and the waiver rule.

I’d have predicted that the court would be especially unwilling to reverse one of its own this way, but evidently not so.

Joining Vanaskie were Jordan and Krause. Arguing counsel were Theodore Boutrous Jr. of Gibson Dunn for the insurer and Michael Conley of Offit Kurman for the policyholder.

New opinion — plaintiffs failed to present evidence that Delaware’s massive ongoing failure to release its prisoners on time was “callously misguided”

Wharton v. Danberg — prisoner civil rights — affirmance — Greenaway

The Third Circuit today issued a remarkable opinion in a remarkable case, rejecting Delaware inmates’ argument that the state violated the constitution by failing to release a horrifying proportion of its inmates on time. The heart of the opinion comes near the end:

Viewing the facts in the light most favorable to Appellants, we could conclude that over-detentions are rampant in Delaware and that correctional officials are trying, albeit without great success, to tackle that challenge. So far, this is not deliberate indifference. Appellants need more to rescue their claim. They would need to show that Appellees’ efforts to improve COR so obviously miss the mark that pursuing those efforts manifests disregard for the real problem and thereby amounts to deliberate indifference. Such evidence is absent from the record.

The word “discovery” appears once in the opinion, in passing.

Joining Greenaway were Jordan and Rendell. Arguing counsel were Stephen Hampton of Grady & Hampton for the inmates and Michael McTaggart for the state.


New opinion — Third Circuit clarifies test for manufacturer-distributor patent disputes, despite the appellant’s waiver

Covertech Fabricating v. TVM Building Prods. — patent — partial affirmance — Krause

The Third Circuit today affirmed on alternative grounds a district court ruling in favor of the manufacturer in a trademark dispute, but it vacated the lower court’s damages calculation. The opinion’s introduction:

Too often the silence of contracting parties must be
filled by the voice of the courts. Such is the case here, where
we are called upon to resolve a trademark dispute in which no
written contract designates ownership, and, in the process, to
clarify the paradigm through which common law ownership
of an unregistered trademark is determined when the initial
sale of goods bearing the mark is between a manufacturer and
its exclusive distributor. The District Court in this case
awarded ownership to the manufacturer, but did so on the
basis of the first use test, and found the distributor liable for infringement and fraud before rejecting its defense of
acquiescence and awarding damages under the Lanham Act.
Because the District Court failed to recognize and apply the
rebuttable presumption of manufacturer ownership that we
conclude pertains where priority of ownership is not
otherwise established, and because the District Court
incorrectly relied on gross sales unadjusted to reflect sales of
infringing products to calculate damages, we will affirm on
alternative grounds as to ownership, will affirm as to fraud
and acquiescence, and will vacate and remand as to damages.

Beyond the merits holdings, the opinion also features notable appellate procedure rulings. The court held that the first-use test did not apply to manufacturer-distributor trademark disputes, but the losing party below never made that argument in district court nor even in its opening brief on appeal. Instead, the Third Circuit itself directed the parties to brief the issue. The court noted the manufacturer’s waiver, but said “it is necessary and appropriate for us to take up the question of the proper legal test because it is a purely legal question, the resolution of which is in the public interest” (citation omitted).

The court also opted to apply the correct six-factor test on appeal, instead of remanding to give the district court the first crack. It noted that application of the factors was “fully briefed, the parties have confirmed that they would not add to the record on remand, and our application of the test may provide helpful guidance to district courts.”

Joining Krause were Jordan and Vanaskie. Arguing counsel were Brian Shaffer of Morgan Lewis for the appellee distributor and J. Michael Baggett of McCann Garland for the appellant manufacturer.

No Supreme Court review for two prominent Third Circuit cases

Today the Supreme Court denied certiorari in two notable cases from the Third Circuit, Langbord v. Dept. of Treasury (the en banc gold-coins case) and Castro v. DHS (the case about whether federal courts will hear claims raised by petitioners seized on U.S. soil after recent illegal entry).

The denial in Langbord is no big surprise, but the Castro petitioners had amassed powerful support.

The Court also denied the Commonwealth’s petition for cert challenging the Third Circuit’s grant of habeas corpus relief in Brown v. Superintendent.

New opinion — a landmark prisoner-civil-rights win in solitary-confinement case

Palakovic v. Wetzel — prisoner civil rights — reversal — Smith

The Third Circuit issued a major prisoner-rights decision today, ably summarized in its opening paragraph:

Brandon Palakovic, a mentally ill young man who
was imprisoned at the State Correctional Institution at
Cresson, Pennsylvania (SCI Cresson), committed suicide
after repeatedly being placed in solitary confinement.
His parents, Renee and Darian Palakovic, brought this
civil rights action after their son’s death. The District
Court dismissed the family’s Eighth Amendment claims
against prison officials and medical personnel for failure
to state a claim upon which relief can be granted. We
write today to clarify and elaborate upon the legal
principles that apply to Eighth Amendment claims arising
out of prison suicides. For the reasons that follow, we
will vacate the District Court’s dismissals.

The opinion chillingly documents Palakovic’s alleged suicide-risk red flags, and it notes that the complaint alleges that the prison’s ” practice for dealing with mentally ill prisoners like Brandon was to relegate them to solitary confinement.” And the court “acknowledge[d] the robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long-term isolation in solitary confinement” and “the increasingly obvious reality that extended stays in solitary confinement can cause serious damage to mental health.”

Joining Smith were Jordan and Shwartz. Arguing counsel were Bret Grote of the Abolitionist Law Center for the prisoner’s estate, Howard Hopkirk of the PA AG’s office for the defendant prison officials, and associate Cassidy Neal of Matis Baum for the defendant medical providers.

Third Circuit’s support-animal ruling generates criticism

Last week I posted about a Third Circuit ruling in Revock v. Cowpet Bay West reviving Fair Housing Act claims by a Virgin Islands emotional-support-dog owner against neighbors who posted online opposing her attempt to live with the animal despite their condominium’s no-pets rule. I wrote:

I’m mighty skeptical that private citizens should be subject to FHA liability for saying mean things online about emotional-support-animal-owning neighbors. I think it’s not unlikely that private citizens will say mean things about today’s opinion.

As predicted, Revock has drawn fire, mainly from conservative commentators. So far I’ve seen this one by Hans Bader on the Competitive Enterprise Institute blog (“menaces free speech,” “[a]larmingly,” “extremely expansive”), this one by Walter Olson on the Cato Institute’s Overlawyered blog, this one by Scott Greenfield on his Simple Justice blog, and this one by Eric Goldman on the Technology & Marketing Law blog, two of which were linked by Howard Bashman on How Appealing. William Goren also discussed the case on his Understanding the ADA blog, and Eugene Volokh flagged it in his latest Short Circuit roundup post on Volokh Conspiracy. So Revock has gotten a lot more attention — and a lot more criticism — than most Third Circuit published opinions.

No petition for rehearing has been filed in the case yet. Given that counsel for the neighbors apparently didn’t challenge whether the support-dog owner had a qualifying handicap and didn’t raise any free speech defense, it’s far from certain one will be.



New opinion — Third Circuit tackles antitrust-jurisdiction issues in pharma reverse-payments appeals

In re: Lipitor Antitrust Litig. — civil / jurisdiction — partial affirmance — Fisher

In two sprawling MDL antitrust class actions involving drug-company reverse payments consolidated into one appeal, the Third Circuit yesterday addressed two antitrust-jurisdiction issues. First, it held that it (not the Federal Circuit) had jurisdiction over suits involving fraudulent procurement and enforcement of patents, where “patent law neither creates plaintiffs’ cause of action nor is a necessary element to any of plaintiffs’ well-pleaded claims.” Second, it held that the district court erred in denying a post-removal motion to remand to state court on the ground that the defendants had potential federal patent-law defenses, because “federal jurisdiction depends on the content of the plaintiff’s complaint, not a defendant’s possible defenses.” The court remanded appeal involving this second issue for jurisdictional discovery.

Joining Fisher were Ambro and Smith. Amongst a list of counsel that ran 10 pages long in the opinion, arguing counsel for the appellants were: Barry Refsin of Hangley Aronchick, Scott Perwin of Florida, David Sorensen of Berger & Montague, James Cecchi of Carrella Byrne, and James Alioto of California. Arguing for the appellees (the pharmaceutical-company antitrust defendants) were Robert Milne of White & Case, Jay Lefkowitz of Kirkland, and Noah Leibowitz of Simpson Thacher.

New opinions

I’m out of the office this week, and next week is the Third Circuit conference, so my posting will be a bit irregular for a while. To wit, here are yesterday’s two published opinions.

In re: Lansaw — bankruptcy — affirmance — Melloy

The first paragraph:

The filing of a bankruptcy petition operates as an automatic stay of debt collection activities outside of bankruptcy proceedings. 11 U.S.C. § 362(a). If “an individual [is] injured by any willful violation of [the] stay,” that individual “shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” Id. § 362(k)(1). In the present case, Frank Zokaites committed several willful violations of the automatic stay arising from Garth and Deborah Lansaw’s bankruptcy petition. Because of these violations, the Bankruptcy Court awarded the Lansaws emotional-distress damages as well as punitive damages under § 362(k)(1). The District Court affirmed the awards, and Zokaites now appeals. We conclude that § 362(k)(1) authorizes the award of emotional-distress damages and that the Lansaws presented sufficient evidence to support such an award. We also conclude that the Lansaws were properly awarded punitive damages. Accordingly, we will affirm.

Joining Melloy CA8 by designation were Fisher and Krause.


Andrews v. Scuilli — civil rights — reversal — Nygaard

The first paragraph:

David Andrews was found not guilty of the crimes for which he was charged. He brought suit against Officer Robert Sciulli for false arrest and malicious prosecution.1 On appeal he contends that the District Court erred by granting summary judgment, on the basis of qualified immunity, in favor of Sciulli. We agree. We will reverse the District Court’s judgment and remand the cause for trial.

Joining Nygaard were Vanaskie and Krause.

New opinion — “alarmed” Third Circuit upholds ruling against DRPA in contract dispute

Alpha Painting v. DRPA — civil — partial affirmance — Rendell

A blistering Third Circuit opinion today upheld a district court ruling that the Delaware River Port Authority improperly denied a bridge-painting contract to the low bidder.  The opinion described DRPA’s underlying conduct as “so puzzling,” done “for reasons that still elude us,” alarm[ing],” and “defy[ing] reasonable explanation.” Its appellate efforts fared no better:

  • “DRPA argues that it has a rational basis for labeling Alpha not responsible. We cannot see how.”
  • “Most of DRPA’s arguments on appeal, in an effort to distract us from this glaring deficiency in proof . . . .”
  • “This argument, however, borders on the frivolous.”

Probably not what DRPA was hoping for when they decided to appeal. The one silver lining for DRPA was that the Third Circuit vacated the lower court’s remedy of awarding the contract to the contractor plaintiff.

Joining Rendell were McKee and Fuentes. Arguing counsel were John Elliott of Elliott Greenleaf for DRPA and former Greenberg clerk Jennifer Hradil of Gibbons for the contractor.



New opinion — Third Circuit affirms in pro se ERISA appeal

Secretary USDOL v. Kwasny — ERISA — affirmance — McKee

The Third Circuit today affirmed a district court’s grant of summary judgment in an ERISA case against Richard Kwasny, a former law-firm partner who directed employee retirement-fund contributions into the firm’s general assets.

Joining McKee were Restrepo and Hornak WDPA by designation. The case was decided without argument.

Kwasny is identified in the caption as “Attorney for Appellant,” and is listed on Pacer as “Richard J. Kwasny, Esq.” and coded “Pro Se Atty,” having used on his civil information statement an email address starting with “kwasnylaw@.” Kwasny was suspended in PA for five years in 2014 and disbarred in New Jersey in 2015 for mismanaging client funds and practicing law while on administrative suspension.

New opinion — township officials violated their constituents’ First Amendment rights but win on qualified-immunity grounds

Mirabella v. Villard — civil — reversal — Restrepo

A husband and wife, both lawyers, got into a dispute with their neighbors and tried to get their local government officials to help them. When the township didn’t do what the couple asked, they sent the board an email that said the board’s refusal put them “in the position of having to sue neighbors” and “the Township will be an indispensable party in this litigation.” The then-chair of the township board (he’s since become a county judge) thereafter told the couple, “Please never contact me, the Board of Supervisors or the Township employees directly. . . . The dye is caste.” The couple sued the township and the supervisors, alleging First Amendment retaliation and right-to-petition claims, and the district court denied the defendants qualified immunity.

Today, the Third Circuit reversed, holding that while the couple adequately pled both retaliation and right-to-petition claims, neither right had been clearly established. The court quoted prior precedent that “‘defining constitutional rights and only then conferring immunity … is sometimes beneficial to clarify the legal standards governing public officials.”

Joining Restrepo were Fuentes and Shwartz. Arguing counsel were Harry Mahoney of Deasey Mahoney & Valentini for the defendants and John Mirabella for himself and his wife in a rare grant of oral argument to a pro se litigant.

Cert petition challenging controversial Third Circuit immigration ruling in Castro set for conference

The Supreme Court has distributed for its April 13 conference the petition for certiorari filed in Castro v. DHS, challenging the Third Circuit’s controversial 2016 ruling denying habeas corpus review to petitioners recently seized on U.S. soil. My prior posts on Castro are here, here, and here. The Third Circuit denied en banc rehearing in October by an 8-4 vote, with Judges McKee, Greenaway, Vanaskie, and Restrepo voting in favor.

The cert issues are summarized by Scotusblog thus:

(1) Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that the petitioners are not entitled to judicial review of their statutory, regulatory and constitutional claims, even by habeas corpus, and are “prohibited from invoking the protections of the suspension clause” to challenge their removal; and (2) whether the 3rd Circuit erred in concluding, contrary to every other circuit to address the issue, that persons who have entered the United States may be “assimilated” to the constitutional status of noncitizens arriving at our borders, and thereby denied constitutional rights.

Castro’s petition is supported by four amicus briefs, filed on behalf of the American Bar Association as well as various scholars and organizations. (All the filings are available on Scotusblog.) The brief filed on behalf of 90 immigration-law professors describes the Third Circuit’s ruling as “unprecedented” and “an extreme departure from established law” that “threatens to disrupt fundamental rights and legal precepts far beyond the instant case.” The ABA’s brief is just as hard-hitting: “This Court should immediately review the Third Circuit’s unprecedented decision to deny constitutional habeas protection to persons on U.S. soil.”

Opposing cert, the government’s brief argues that “the court of appeals’ decision is far narrower than petitioners suggest, and creates no conflict with any decision of this Court or any other circuit,” and that the Supreme Court, “has repeatedly indicated that aliens do not instantaneously gain constitutional rights in connection with their admission the moment they cross the border clandestinely.”

Stay tuned.


New opinion – housing-rights win for emotional-support-dog owners

Revock v. Cowpet Bay West — civil / housing / disability — reversal — Restrepo

The Fair Housing Act’s protection against housing discrimination covers a disabled person’s reasonable and necessary use of an emotional-support animal in one’s home despite a rule prohibiting one, the Third Circuit ruled today. The court reversed a district court grant of summary judgment in favor of the defendant condominium, holding that a plaintiff’s FHA claim survived her death under federal common law and that there was a factual dispute over whether the condominium refused to accommodate. The court also found a factual dispute over whether the defendants — including a neighbor who criticized the plaintiffs on his blog — interfered with the plaintiffs’ housing rights by harassing them after they complained.

The parties did not dispute, and the court did not decide, whether the plaintiffs were disabled or whether the accommodation they requested was reasonable. Suffice to say emotional-support animals are not universally beloved, as this scathing 2014 New Yorker article confirms.

Restrepo was joined by Fuentes and Vanaskie. Arguing counsel were Karin Bentz of St. Thomas for the plaintiffs; James Parker of Florida, Boyd Sprehn of Benham & Chan, and Kyle Waldner of St. Thomas for the defendants, and April Anderson for the government as amicus supporting the plaintiffs.

UPDATE: I’m mighty skeptical that private citizens should be subject to FHA liability for saying mean things online about emotional-support-animal-owning neighbors. I think it’s not unlikely that private citizens will say mean things about today’s opinion.


New opinion — bankruptcy blocks construction liens

In re: Linear Electric — bankruptcy — affirmance — Roth

The Third Circuit today held that a supplier may not file a construction lien under New Jersey law when the contractor has filed for bankruptcy, because doing so would violate the Bankruptcy Code’s automatic-stay provision. Construction liens allow a supplier to collect a debt owed to the contractor by a property owner in order to recoup what the contractor owes to the supplier.

Joining Roth were Shwartz and Cowen. The case was decided without oral argument.

New opinion — Third Circuit affirms denial of prison-phone-service provider’s motion to compel arbitration

James v. Global Tellink — civil / arbitration — affirmance — Hardiman

Global Tel-Link contracts with prisons to provide phone service to inmates. They have been accused by the FCC, at least six state attorney generals, and many many many many others of charging inmates excessive rates, reportedly up to $14 a minute!  (Not to be outdone, the other major prison-phone-service provider reportedly has been sued repeatedly for recording attorney-client legal calls.)

In New Jersey, a group of inmates and family members sued Global Tel-Link for charging rates it alleged were “unconscionable.” GTL sought to dismiss some of the claims based on an arbitration clause in the terms of service it posted online. But at least some of the plaintiffs never saw or assented to the terms of service because they signed up by phone.

Today, the Third Circuit affirmed the district court’s order denying the GTL’s motion to compel arbitration. GTL can’t force the plaintiffs to arbitrate their claims just by telling users that using their service constituted acceptance of their terms, without actually informing them of the terms nor eliciting assent to them.

Joining Hardiman were Chagares and Scirica. The case was decided without argument.

New opinion — Third Circuit rules for defendants on CAFA jurisdiction

Ramirez v. Vintage Pharmaceuticals — civil / class action — reversal — Vanaskie

In 2005, Congress passed the Class Action Fairness Act to make it easier for defendants to keep large class actions from being decided by state courts. Under CAFA, a suit can be eligible for removal if more than 100 plaintiffs seek a joint trial, but consolidation only for pretrial purposes doesn’t qualify.

Today, the Third Circuit ruled in favor of defendants seeking to keep a case in federal court, holding that language in the 100+ plaintiffs’ single complaint that “claims have been filed together . . . for purposes of case management on a mass tort basis” wasn’t clear enough to defeat removal: “Where, as here, more than 100 plaintiffs file a single complaint containing claims involving common questions of law and fact, a proposal for a joint trial will be presumed unless an explicit and unambiguous disclaimer is included.”

Joining Vanaskie were Chagares and Krause. Arguing counsel were Angela Vicari of Arnold & Porter for the defendants and Keith Bodoh of Georgia for the plaintiffs.

New opinions — Third Circuit takes sides in circuit split on federal jurisdiction over suits seeking declaratory and legal relief

Rarick v. Federated Mutual — civil / jurisdiction — reversal — Hardiman

Federal courts have broad discretion to refuse to hear declaratory-judgment suits, but a “virtually unflagging” duty to hear suits seeking legal relief. Today, the Third Circuit addressed the intersection of these two standards, deciding how much discretion federal courts have about whether to hear suits seeking both declaratory and legal relief.

Other circuits have split over what jurisdictional standard to apply to these hybrid declaratory/legal suits. The Seventh and Ninth Circuits have ruled that if the legal claims are not independent of the declaratory claims, the court may decline jurisdiction over the entire suit. Three other circuits apply the virtually-unflagging standard. And one has focused on which claims constitute the “heart of the matter,” and this is the standard that district courts within the Third Circuit had followed, including in the two cases decided in today’s appeal.

Today, the Third Circuit adopted the independent-claim test, reversing the district courts. It explained, ” The independent claim test is superior to the others principally because it prevents plaintiffs from evading federal jurisdiction through artful pleading.”

Joining Hardiman were Chagares and Scirica. Arguing counsel were Charles Spevacek of Minnesota and James Haggerty of Haggerty Goldberg.


US v. Repak — criminal — affirmance — Smith

The Third Circuit today issued a 68-page opinion affirming a public official’s conviction for extortion and bribery. Ronald Repak, the longtime head of Johnstown, PA’s redevelopment authority, was convicted of getting contractors who did business with the authority to replace the roof on his home and excavate land for his son’s gym. (Something tells me indicted admitted-new-roof-gift-receiver Philadelphia DA Seth Williams won’t enjoy reading this opinion much.)

The opinion addressed a flurry of claims:

  • The court affirmed admission of other-bad-acts evidence under FRE 404(b), even though the district court had failed to explain how the evidence was relevant to the defendant’s mental state or why the unfair prejudice did not outweigh its probative value.
  • The court affirmed admission of evidence that Repak had an affair, rejecting his FRE 403 claim.
  • The court rejected the defendant’s challenges to the sufficiency of the evidence for the Hobbs Act extortion counts and the bribery counts.
  • The court rejected Repak’s plain-error challenges to the extortion and bribery jury instructions.
  • The court rejected Repak’s argument that the indictment was constructively amended.
  • The court denied Repak’s claim that the prosecutor committed misconduct during closing arguments. The court did say that the prosecutor’s reference to Repak’s affair was “inappropriate, irrelevant to any issue at trial, and unnecessarily prejudicial.”

Joining Smith were McKee and Shwartz. Arguing counsel were Laura Irwin for the government and Timothy Lyon of Pittsburgh for the defendant.

New opinion — Third Circuit vacates Fosamax summary judgment

In re: Fosamax — civil — reversal — Fuentes

Plaintiffs alleged that an osteoporosis drug sold by Merck caused thigh-bone fractures. Merck sought summary judgment, arguing that the plaintiffs’ product-liability claims were preempted because the FDA would not have approved the warning the plaintiffs tendered. Today, the Third Circuit vacated, emphasizing that the predictive preemption defense at issue is “demanding” and that the plaintiffs’ evidence was enough to defeat summary judgment.

Of particular note is this paragraph near the end of the opinion:

There is a deeper problem lurking in the District Court’s decision to grant Merck a merits judgment in all of the MDL cases. A mass tort MDL is not a class action. It is a collection of separate lawsuits that are coordinated for pretrial proceedings—and only pretrial proceedings—before being remanded to their respective transferor courts.170 Some purely legal issues may apply in every case. But merits questions that are predicated on the existence or nonexistence of historical facts unique to each Plaintiff—e.g., whether a particular Plaintiff’s doctor would have read a warning in the Adverse Reactions section and ceased prescribing Fosamax as a result—generally are not amenable to across-the-board resolution. Each Plaintiff deserves the opportunity to develop those sort of facts separately, and the District Court’s understandable desire to streamline proceedings cannot override the Plaintiffs’ basic trial rights.171 As a technical matter, Merck’s actual burden at the summary judgment stage was to prove that there is no genuine dispute in every single MDL case that Plaintiffs’ doctors would have continued to prescribe Fosamax even if the fracture warning had been added to the Adverse Reactions section before May 2009. It could not do so, and the District Court’s grant of summary judgment on the merits was therefore erroneous.

Joining Fuentes were Chagares and Restrepo. The opinion ran 78 pages with 172 footnotes. Superstar arguing counsel were former Assistant to the Solicitor General David Frederick of Kellogg Hansen for the plaintiffs and John Beisner of Skadden Arps for Merck. Audio of the oral argument is here.

New opinions — three civil reversals

The Third Circuit issued three published opinions yesterday, all three reversing at least in part.

Aliments Krispy Kernals v. Nichols Farms — civil / arbitiration — reversal — Fuentes

The Third Circuit remanded for a district court to resolve a factual issue about whether the parties to a contract agreed to arbitration. The district court had denied the motion to enforce arbitration, but the Third Circuit ruled that at least two material factual disputes must be resolved first.

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


Egan v. Delaware River Port Authority — civil / employment discrimination — partial reversal — Shwartz

The Third Circuit vacated a defense verdict in a suit brought under Family and Medical Leave Act, holding that the district court erred in requiring the plaintiff to support his FMLA claim with direct (as opposed to circumstantial) evidence. The court affirmed the defense verdict on the plaintiff’s claim under the Americans with Disabilities Act.

Significantly, Judge Jordan concurred in the judgment, noting his “discomfort” with Chevron deference and urging that the doctrine “deserves another look.” (He expressed similar views in during a public program in January.)

Joining Shwartz was Smith, with Jordan concurring in the judgment. Arguing counsel were Michael Salmanson of Salmanson Goldshaw for the plaintiff, Rachel Goldberg for the government as amicus supporting the plaintiff, and Zachary Davis of Stevens & Lee for the defendant.


Carvalho-Grevious v. Delaware State Univ. — civil / employment discrimination — partial reversal — Fisher

A professor sued a university and administrators under Title VII, alleging retaliation for complaining about discrimination. The district court granted summary judgment in favor of all defendants, but the Third Circuit reversed in part, reviving claims against the university and an administrator. The court endorsed the Fourth Circuit’s view that retaliation plaintiffs need only show at the prima facie stage that retaliation was the likely reason for the employer’s adverse action, criticizing the Sixth and Tenth Circuit’s view that such plaintiffs must prove but-for causation.

Joining Fisher were Ambro and Smith. Arguing counsel were Christine Burke of Karpf Karpf & Cerutti for the professor and James Taylor Jr. of Saul Ewing for the defendants.

Supreme Court reverses Third Circuit on bankruptcy structured dismissals

The Supreme Court this morning reversed the Third Circuit in Czyzewski v. Jevic Holding Corp., holding that bankruptcy courts may not circumvent the Bankruptcy Code’s creditor-payment hierarchy by means of structured dismissals. The Court’s ruling was 6 to 2, with Justices Thomas and Alito arguing in dissent that the Court should have dismissed the case instead.

The Supreme Court opinion is here, the reversed 2015 Third Circuit opinion is linked here.

New opinion — compelling a person to unencrypt his computer wasn’t plain error

US v. Apple Macpro Computer — criminal — affirmance — Vanaskie

The government was investigating John Doe for accessing child pornography on the internet, so they searched his home and seized his cell phone and computer. But Doe’s computer hard drive was encrypted, and the government wasn’t able to access any illegal images stored there. So the government sought an order requiring Doe, essentially, to tell the government his password to unencrypt the computer drive, and the court granted the government’s request. When Doe did not provide his password, asserting that he could not remember it, the court found Doe in civil contempt and ordered him held until he complies. Doe appealed, arguing that it violated his Fifth Amendment right against self-incrimination to compel him to tell the government how to unencrypt his hard drive.

Today, the Third Circuit affirmed without squarely resolving how self-incrimination applies to encryption. Because Doe did not appeal from the district court order that rejected his Fifth Amendment claim, but instead later appealed from the contempt order, the court said its review of the Fifth Amendment was at most for plain error, and it found none. The court also affirmed the contempt order based on evidence tending to show that Doe was able to remember the hard drive password.

Joining Vanaskie were Jordan and Nygaard. Arguing counsel were Keith Donoghue of the EDPA Federal Community Defender for Doe, Mark Rumold of the Electronic Frontier Foundation for amicus curiae, and Nathan Judish for the government.

My prior coverage of the case is here and here, and Professor Orin Kerr’s commentary on today’s ruling is here.


Three new opinions, including an immigration reversal

Chavez-Alvarez v. AG — immigration — reversal — Ambro

Years after a lawful permanent resident was convicted by a military court of sodomy and other crimes, the government sought to deport him on the theory (among others) that his sodomy conviction was for a crime involving moral turpitude. The BIA upheld removal, “determining that because Chavez-Alvarez’s particular crime was subject to a sentence enhancement because it was committed forcibly, and because the application of the enhancement in his case was the “functional equivalent” of a conviction for the enhanced offense, he was convicted of forcible sodomy.”

Today, the Third Circuit reversed. Applying the categorical approach, the court ruled that a military conviction for sodomy did not require proof of force and, given Lawrence v. Texas, was not a crime involving moral turpitude. The court rejected the argument that the president’s military sentencing guidelines functioned to create separate offenses for categorial-approach analysis.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Craig Shagin of the Shagin Law Group for the petitioner — by my quick count, this is the fourth CA3 published win for Shagin since 2015! — and Sabatino Leo of the DOJ for the government.


Fried v. JP Morgan Chase — civil — affirmance — Ambro

In my book, this is opinion-introduction perfection:

Ginnine Fried bought a home in 2007 for $553,330. It was near high tide in the real estate market, but she had to believe she was getting a bargain, as an appraisal estimated the home’s value to be $570,000. Fried borrowed $497,950 at a fixed interest rate to make her purchase and mortgaged the home as collateral. Because the loan-to-purchase-price ratio ($497,950 / $553,330) was more than 80%, JPMorgan Chase Bank, N.A. (“Chase”), the servicer for Fried’s mortgage (that is, the entity who performs the day-to-day tasks for the loan, including collecting payments), required her to obtain private mortgage insurance. Fried had to pay monthly premiums for that insurance until the ratio reached 78%; in other words, the principal of the mortgage loan needed to reduce to $431,597, which was projected to happen just before March 2016.

We now know that the housing market crashed in 2008, and the value of homes dropped dramatically. Fried, like many homeowners, had trouble making mortgage payments. Help came when Chase modified Fried’s mortgage under a federal aid program by reducing the principal balance to $463,737. The rub was that Chase extended Fried’s mortgage insurance premiums an extra decade to 2026. Whether it could do this depends on how we interpret the Homeowners Protection Act (“Protection Act”), 12 U.S.C. § 4901 et seq. Does it permit a servicer to rely on an updated property value, estimated by a broker, to recalculate the length of a homeowner’s mortgage insurance obligation following a modification or must the ending of that obligation remain tied to the initial purchase price of the home? We conclude the Protection Act requires the latter.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Jonathan Massey of Massey & Gail (the attorney who won the Chavez en banc last year) for the bank and Antonio Vozzolo of NJ for the homeowner.


Edinboro College Park Apts. v. Edinboro University Foundation — antitrust / sovereign immunity — partial reversal — Smith

When apartment owners sued a state university’s foundation and its president for conspiring to monopolize the student-housing market, the defendants asserted they were state actors immune from antitrust liability. Today, the Third Circuit agreed because the university’s anticompetitive conduct conformed to a clearly articulated state policy and the foundations were directed by the university.

Joining Smith were McKee and Restrepo. Arguing counsel were Matthew Wolford of PA for the apartment owners, Matthew McCullough of MacDonald Illig for the foundation, and Kemal Mericli of the PA AG for the president.


Another amazing twist for Fattah Jr.: pro se oral argument

Two years ago, I wrote about the Third Circuit’s remarkable decision to hear the pro se interlocutory appeal of Chaka Fattah Jr. I said:

When a pro se criminal defendant files an interlocutory appeal asking the Third Circuit to stay his prosecution so that he can file pro se appeal to argue why his indictment should be dismissed, his odds of success are more or less zero.

But not actually zero, we now know, because earlier this month the court stayed the criminal prosecution of Chaka Fattah, Jr., son of the embattled member of Congress, and ordered expedited briefing.

* * *

The chances that the court will allow a pro se defendant to orally argue his appeal are zero …

… more or less.

Sadly for Fattah, his interlocutory appeal was dismissed without oral argument and, after a trial, he was convicted of fraud and sentenced to five years in prison.

Now, Fattah has appealed his conviction — pro se, naturally. After the briefs were in (the government needed 3 extensions!) Fattah once again defied long, long odds when the panel granted him oral argument. The court ordered the marshals to produce Fattah, and yesterday he got to orally argue his appeal. A link to the argument audio is here.

When was the last time the Third Circuit heard pro se oral argument in a criminal appeal by an incarcerated appellant? I’ve never heard of it before.

Jeremy Roebuck has this lively report on the oral argument at The panel was Chief Judge Smith and Judges Hardiman and Krause. Roebuck reports that Fattah’s argument elicited “skeptical questions” from the panel and “may not ultimately lead to Fattah’s success.”

The court appointed Ellen Brotman, a top white-collar and appeals lawyer now in solo practice in Radnor, PA, to file a brief and orally argue on Fattah’s behalf as amicus curiae. AUSA Eric Gibson argued for the government.

Chutzpah is not always rewarded in the staid world of federal appellate practice, so it’s fascinating to see how effective Fattah has been in getting the Third Circuit to take his case so seriously.

New opinions — a Title IX blockbuster and a prisoner-civil-rights reversal with a blistering reprimand for the lower court

Two opinions published today — both of them authored by Judge Fisher, both of them partial reversals in favor of civil plaintiffs, and both broadly significant.

Doe v. Mercy Catholic Med. Ctr. — civil / sex discrimination — reversal in part — Fisher

In a major Title IX opinion, the Third Circuit today ruled in favor of a medical resident whose Title IX sex discrimination claims had been dismissed by the district court. The resident alleged that her supervising doctor sexually harassed her and retaliated when she rebuffed him. The court reversed dismissal of claims for retaliation and quid pro quo and affirmed dismissal of a hostile-environment claim on statute of limitations grounds.

First, it ruled that the medical center’s residency program fell within Title IX’s scope, reading education broadly while rejecting the center’s argument that Title IX reaches only principally educational entities. The court listed features for deciding if something is an “education program or activity covered by Title IX:

(A) a program is incrementally structured through a particular course of study or training, whether full- or part-time; (B) a program allows participants to earn a degree or diploma, qualify for a certification or certification examination, or pursue a specific occupation or trade beyond mere on-the-job training; (C) a program provides instructors, examinations, an evaluation process or grades, or accepts tuition; or (D) the entities offering, accrediting, or otherwise regulating a program hold it out as educational in nature.

Second, the court held that Doe’s private causes of action for retaliation and quid pro quo were cognizable under Title IX, rejecting the argument that Title VII’s employment-discrimination provisions (with its elaborate administrative exhaustion requirements) were her exclusive remedy. On this point the court expressly split with the Fifth and Seventh Circuits while joining the First and Fourth Circuits. The court did not reach whether Doe’s private hostile environment claim was cognizable because it held that Doe’s was time-barred, rejecting her argument that her dismissal was part of a continuing violation.

Joining Fisher were Krause and Melloy by designation. Arguing counsel were Joshua Boyette of Swartz Swidler for Doe, Christine Monta for the government as amicus supporting Doe, and Robin Nagele of Post & Schell for the medical center.


Pearson v. Prison Health Svc. — prisoner civil rights — partial reversal — Fisher

After an inmate at SCI Somerset in Pennsylvania had a botched surgery for appendicitis, he sued prison and medical staff for Eighth Amendment deliberate indifference, and the district court granted summary judgment for the defendants. Today the Third Circuit ruled in the prisoner’s favor as to one of the defendants and affirmed as to the others.

The court rejected the lower court’s view that expert testimony was always necessary to establish deliberate indifference. The court ruled that lay jurors were capable of deciding that (1) a prison nurse acted with deliberate indifference when he forced the prisoner, screaming in pain, to crawl to a wheelchair to obtain treatment, and (2) delay or denial of treatment for a non-medical reason was deliberate indifference.

The court also “[r]egretfully” criticized Magistrate Judge Keith Pesto and District Judge Kim Gibson (though neither is named in the text of the opinion) for irrelevant editorializing generally to the effect that too many prisoner suits were frivolous:

When we remanded this case, we were hopeful that the Magistrate Judge and District Judge would cease making these kinds of irrelevant, categorical statements for several reasons, including that they are unnecessary and might cast our judicial system in a bad light by leading an observer to question the impartiality of these proceedings. In addition, it is antithetical to the fair administration of justice to pre-judge an entire class of litigants, and we expect courts to conduct, at a minimum, a careful assessment of the claims of each party. By failing to exhibit such an individualized inquiry, these statements disserved the important principle that “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 13 (1954).

Despite our optimism, and despite our admonishment of these sorts of categorical statements, this commentary continued since we last remanded this case to the District Court. ***

As we noted in Pearson’s prior appeal and will reiterate now, Pearson suffered from two serious medical conditions, and “it does not appear . . . that he filed this lawsuit for recreational purposes or to harass prison personnel.” Pearson, 519 F. App’x at 84. It appears he filed this suit because he genuinely believes that the prison officials acted deliberately indifferent to his medical needs in violation of his constitutional rights. Whether or not he ultimately prevails, equality before the law is one of the founding principles of our government and Pearson deserves to have his case treated as carefully and thoughtfully as any other litigant’s.

While we remain convinced that the Magistrate Judge and District Judge are capable of handling Pearson’s trial without any bias, we trust that our message will be heard on this third remand and that this editorializing will cease going forward.

Extraordinary stuff.

In a footnote, the court added that district judges are responsible for magistrate judges’ reports that they adopt in their entirety, and it noted that district judges and magistrates must recuse, sua sponte, whenever their impartiality might reasonably be questioned!

Joining Fisher were Krause and Greenberg. Arguing counsel were Brandon Verdream of Clark Hill for the prisoner, and Kemal Mericli of the PA AG’s office and Kathryn Kenyon of Meyer Unkovic for the defendants.

New opinion — Third Circuit affirms in a difficult habeas case

Johnson v. Lamas — habeas corpus — affirmance — Rendell

When William Johnson was tried in Philadelphia for murder, his co-defendant refused to testify against him, so the prosecution just introduced the co-defendant’s earlier statement implicating Johnson. That violated Johnson’s Confrontation Clause right, the Third Circuit said and the Commonwealth conceded, but on Friday the court affirmed anyway because it held that it was not unreasonable for the state court to rule that the error was harmless. Actually, the state court only addressed whether the error prejudiced the defendant and could not have influenced the outcome of the case, and I’m not sure the panel was correct at fn.21 to treat that as a decision on whether state proved the error was harmless beyond a reasonable doubt. But that’s a byzantine habeas issue and it’s not obvious whether a different analysis would have changed the outcome.

The Third Circuit also rejected Johnson’s argument that the prosecutor violated due process by insisting that the co-defendant take the stand even though the prosecutor knew he would refuse to testify. The state court had denied this claim, and the Third Circuit said: “We do not need to determine whether we owe deference to the Superior Court’s determination because we do not think the authorities Johnson relies upon clearly establish a due process violation.” I’m very skeptical that this reasoning is correct — I’m aware of no support for the idea that 2254(d)’s “clearly established” requirement still applies if the federal court does not owe deference to the state court decision, and the court does not cite any.

Rendell was joined by Fuentes and Krause. Arguing counsel were David Rudovsky of Kairys Rudovsky for Johnson and Catherine Kiefer of the Philadelphia DA’s office for the commonwealth. The argument was over a year ago.

Note: the court issued this opinion on Friday, but I was out of the office.

New opinion — a stone-crazy Philadelphia murder trial results in rare habeas reversal

McKernan v. Superintendent — habeas corpus — reversal — Roth

The Third Circuit today reversed a district court’s denial of habeas corpus relief, holding that the trial counsel provided ineffective assistance and the state court’s ruling to the contrary was unreasonable.

Today’s case arose from a late-90s Philadelphia murder trial.  Mid-trial, the judge told the victim’s family in chambers that she was very disturbed that they were criticizing her publicly and that she did not want to hear the case if they were unhappy with her. The family’s website described how the judge had been criticized by Charlton Heston as “Let ’em Loose Lisa” and “a bleeding heart judge that often sympathizes with murderers,” which the judge told the family was “a total lie.” Defense counsel was present when the judge said all this, but he advised the client not to seek the judge’s recusal. In the end the judge found the defendant guilty of first-degree murder.

In the part of the opinion likely to have the broadest significance, the court held that defendants’ right to an impartial trial extends to bench trials (trials such as this one where judges not juries are the factfinders). On the merits of McKernan’s ineffective-assistance claim, the court found that, “in the unique circumstances of this case,” counsel’s failure to seek the judge’s recusal was deficient performance because any competent attorney would have done so.

Joining Roth were Fisher and Greenaway. Arguing counsel were Maria Pulzetti of the EDPA Federal Community Defender for the petitioner and Joshua Goldwert of the Philadelphia DA’s office for the Commonwealth.

Early Reuters coverage of today’s opinion here, and Jeremy Roebuck’s story is here.

New opinion — court affirms criminal conviction

US v. Jackson — criminal — affirmance — Greenberg

The Third Circuit today affirmed a drug-dealing conviction, summarizing its ruling thus (footnote omitted):

Jackson challenges the district court authorized wiretaps because he
contends that the state court lacked jurisdiction to permit the
underlying wiretaps of cellphones outside of Pennsylvania. In
this case intercepted calls were placed and received outside of
that state, even though the calls in part concerned cocaine
trafficking in Pennsylvania. Accordingly, Jackson contends that
the evidence obtained through the federal interceptions was the fruit of illegal conduct and should have been suppressed.

Jackson also claims that during the trial there were three
unchallenged prejudicial plain errors: (1) the admission of a case
agent’s testimony interpreting the contents of certain telephone
calls; (2) the admission of co-conspirators’ testimony about their
convictions and guilty pleas for the same crime; and (3) the
prosecutor’s mention of a co-conspirator’s Fifth Amendment
right not to testify when she was prompted to identify the
evidentiary rule that permitted the admission into evidence of
what otherwise would have been inadmissible hearsay. Jackson
urges that those errors separately and cumulatively require
reversal of his conviction.

We conclude that inasmuch as the District Court did not
err in denying Jackson’s motions to suppress the wiretap
evidence and his other contentions of error, even if correct,
would not make claims rising to the level of plain errors
entitling him to relief, we will affirm Jackson’s conviction.

Joining Greenberg were Fisher and Krause. Arguing counsel were F. Clinton Broden of Dallas, TX for the defendant and Donovan Cocas for the government.

New opinions — a partial sentencing reversal and an odd dual-juries affirmance

US v. Douglas — criminal sentencing — partial reversal — Shwartz

The Third Circuit today held that a district court erred when it imposed an obstruction-of-justice enhancement to a defendant’s criminal sentence. The enhancement was imposed because the defendant missed his original trial date due to an emergency room visit, but this was error because the government did not prove that the failure to appear was willful.

Over Judge Greenaway’s dissent, the court rejected the defendant’s claim that the court also erred by imposing a sentencing enhancement for abuse of a position of trust. The majority held that being a non-supervisor airline mechanic with a security clearance qualified for the enhancement.

Judge Greenaway’s dissent began:

The Sentencing Guidelines are meant to constrain judicial discretion, focusing and channeling decisions about criminal punishment in order to provide consistent,disciplined conclusions. I fear that my colleagues have shed those constraints. By disregarding the binding source of law here—the Sentencing Guidelines themselves—the majority has left the abuse of a position of public trust enhancement without limits on its scope. The Guidelines, and our consistent precedent in applying them, delineate particular sorts of abuse of trust which trigger this enhancement. The majority’s interpretation sweeps those textual and precedential distinctions away, rendering the enhancement indiscriminately applicable to a panoply of criminal actors.
Joining Shwartz was Vanaskie in full and Greenaway in part. Arguing counsel were Arnold Bernard, Jr. of Pittsburgh for the defendant and Michael Ivory for the government. The case was argued last March.


US v. Brown — criminal — affirmance — Jordan

The Third Circuit held that a district court did not commit plain error when it empaneled separate juries, one for this defendant and one for his co-defendant, for the same trial. The court noted that dual-jury trials “seem[] to have very little precedent in this Circuit,” and “we do not mean by this ruling to encourage the practice.”

Brown also urged the court to reconsider its 2014 en banc holding that defendants must object to procedural errors at sentencing to avoid plain error review. Problem was, he didn’t actually assert any errors with his sentence!

Joining Jordan were Chagares and Hardiman. The case was decided without oral argument.

New opinion: Third Circuit sets limits on death-row solitary confinement

Williams v. Secretary — prisoner civil rights — affirmance — McKee

In a major opinion issued today, the Third Circuit held that death row inmates have a due process right not to be housed in solitary confinement, without meaningful review, after a court has vacated their death sentences. The court recognized this right and held that it is clearly established (and thus enforceable in a federal civil rights suit) going forward, but it affirmed the district court’s grant of summary judgment against the two prisoners who brought these suits because the right was not clearly established until this opinion.

Both plaintiffs originally were sentenced to death, later won sentencing-phase relief, and in the end were re-sentenced to life in prison. Years passed after the courts vacated their death sentences before their resentencings — 6 years for one of them, 8 years for the other — and the prisons kept them in solitary confinement on death row the whole time, without any regular review of their housing status. The two prisoners brought federal civil rights suits, alleging that keeping them in solitary on death row violated their due process liberty interests. In today’s opinion, the court affirmed on qualified immunity grounds but established a precedent that will bar prisons from continuing this appalling practice.

Joining McKee were Fuentes and Roth. Arguing counsel were James Bilsborrow of New York (a former Smith clerk) for the prisoners and John Knorr III of the OAG for the defendants.

New opinion — court grants resentencing after remand from Supreme Court

US v. Steiner — criminal sentencing — reversal — Fuentes

The Third Circuit today vacated a criminal sentence, ruling that the district court committed plain error when it sentenced the defendant as a career offender using a conviction under Pennsylvania’s burglary statute. That statute is not divisible and thus the sentencing court was obligated to apply the categorical approach instead of the modified categorical approach it used.

The posture of the case was interesting. The court had affirmed the defendant’s conviction in a 2016 published opinion that I discussed here. (I’m not rehashing the parts of today’s opinion that remained unchanged, though they are significant.)  In his petition for certiorari, as the court explained maybe a wee bit defensively, the defendant raised his sentencing argument for the first time, and the Supreme Court vacated and remanded. On remand, the government confessed plain error, and the court agreed.

Also of note: the court recognized that the defendant likely had already served longer than he would be resentenced to and therefore ordered him released pending expedited resentencing.

Fuentes was joined by Jordan and Vanaskie. Arguing counsel remained Renee Pietropaolo for the defendant and Jane Dattilo for the government.

New opinions — two civil affirmances

Issa v. School District — education — affirmance — Fisher

The Third Circuit today affirmed a district court ruling granting a preliminary injunction in favor of international-refugee students who alleged that their school district violated federal law when it denied their request to transfer from a for-profit school for at-risk students into a public school with intensive ESL offerings. It’s an impressive opinion, readable and fact-grounded.

Joining Fisher were Krause and Mellow CA8 by designation. Arguing counsel were Thomas Specht of Marshall Dennehey for the district and Witold Walczak of the PA ACLU for the students.


Capps v. Mondelez Global — employment discrimination / FMLA — affirmance — Restrepo

The court ruled for the employer in a family-leave-suit appeal today, holding that “an employer’s honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim.”

Restrepo was joined by Fuentes and Shwartz. Arguing counsel were Christine Burke of Karpf Karpf for the employee, Leslie Greenspan of the Tucker Law Group for the employer, and Jeremy Horowitz of the EEOC as amicus.

Law professor bashes Third Circuit’s Castro decision and calls Hardiman’s vote “close to being disqualifying”

Professor Steve Vladeck posted this today at the Just Security blog, entitled, “The Muslim Ban, Judicial Review, and the Supreme Court.” Here it is, quoted nearly in full:

There’s so much to say about the Executive Order on immigration issued on Friday by President Trump. * * *

Needless to say, judicial review has already played an enormous role here–and could play an even bigger role going forward. And each of the courts to act on the Executive Order thus far have assumed that the non-citizens at issue have a right to the very judicial review they are invoking. But at least in the Third Circuit, that’s not at all clear–thanks to that court’s deeply troubling ruling last August in Castro v. Department of Homeland Security.

In a nutshell, Castro held that non-citizens physically but not lawfully present on U.S. soil are not protected by the Constitution’s Suspension Clause–meaning that they have no constitutional right to judicial review, even if their detention and/or removal from the country is clearly unlawful. In reaching this holding, the Third Circuit made two massive analytical leaps (and errors), both of which I documented at length in a longer post from August. First, the Court of Appeals held that the so-called “entry fiction,” under which the Supreme Court treats arriving non-citizens literally stopped at the border as if they are not technically on U.S. soil for purposes of the applicability (or not) of certain constitutional protections, extends to non-citizens living in the United States who do not have lawful immigration status. The Supreme Court has never embraced this extension, and indeed, has handed down several decisions recognizing at least some constitutional protections for such individuals–and for good reason. Second, even assuming the “entry fiction” extends to non-citizens physically but not lawfully present in the United States, the Third Circuit held that non-citizens in such status have no entitlement to judicial review under the Suspension Clause, even though the Supreme Court has never suggested that the Suspension Clause (as opposed to, e.g., the Due Process Clause) doesn’t apply “at the border,” and, indeed, has expressly applied the Suspension Clause to non-citizens detained at Guantánamo–who, obviously, have even less of an entitlement to constitutional protection than folks physically detained on sovereign U.S. territory.

My post from last August offers longer analysis of why this reasoning is so problematic. And a petition for certiorari in the Supreme Court is already pending in Castro (with the government’s response due on February 27). I wanted to re-up this issue this morning, though, for two different reasons:

First, it is now so much more important for the Supreme Court to grant certiorari in Castro–and reverse the Third Circuit. * * * [U]nder Castro, the Executive Branch’s actions could theoretically be immune from such review, at least in Pennsylvania, New Jersey, and Delaware (okay, and in the U.S. Virgin Islands, too).

Second, with President Trump due later this week to announce his nominee for the Supreme Court seat vacated by Justice Scalia’s death, it is worth emphasizing that one of the judges on the rumored short-list–Judge Thomas Hardiman–was part of the Third Circuit’s ruling in Castro, and, indeed, joined the majority opinion “in full.” (He wrote separately to suggest a different ground on which to deny access to judicial review to the petitioners.) In my view, at least, endorsing such a doctrinally flawed, analytically problematic, and poorly reasoned opinion on such a major constitutional question comes close to being disqualifying in its own right. But at the very least, it should provoke questions from the Senate Judiciary Committee for Judge Hardiman (or any nominee, for that matter) about the proper role of the courts in supervising detention within the United States–and in standing up to Executive Branch actions that, at least based on precedent, certainly seem to be unconstitutional.

After all, if the past 36 hours are any indication, we’re going to need such judicial review quite a lot in the coming weeks, months, and <gulp> years.

Given this weekend’s dramatic developments, I’ll be surprised if Castro — authored by Chief Judge Smith and also joined by Judge Shwartz — doesn’t become a part of the public discussion about the impending nomination.

My prior posts on Castro are here and here.

New opinion — Third Circuit reverses course in grand-jury-appeal jurisdiction case [updated]

In re: Grand Jury Matter #3 — criminal / jurisdictional — reversal — per curiam

This past October, a divided Third Circuit panel ruled in this case that it lacked jurisdiction to hear an appeal from grand jury evidentiary ruling because, while the appeal was pending, the grand jury indicted the defendant. (My post on the prior ruling is here.)

Today, the same Third Circuit panel granted rehearing, vacated its prior opinion, and now ruled that it did have jurisdiction because the grand jury investigation was continuing. On the merits, it held that the district court erred in admitting the evidence:

With jurisdiction, we turn to an important question
involving the limits of the exception to the confidentiality
normally afforded to attorney work product. It loses
protection from disclosure when it is used to further a fraud
(hence the carve-out is called the crime-fraud exception).
The District Court stripped an attorney’s work product of
confidentiality based on evidence suggesting only that the
client had thought about using that product to facilitate a
fraud, not that the client had actually done so. Because an
actual act to further the fraud is required before attorney work
product loses its confidentiality and we know of none here,
we reverse.

The panel remained McKee, Ambro, and Scirica. Counsel for the John Doe appellant was Scott Resnik of New York, with Mark Dubnoff for the government.

UPDATE: Keith Donoghue, an appellate-unit assistant federal defender in Philadelphia, has posted this helpful analysis of the opinion on the Federal Defender Third Circuit Blog.

New opinion — a big plaintiffs’ standing win in data-breach class action appeal

In re: Horizon Healthcare — class action — reversal — Jordan

The Third Circuit today ruled in favor of a putative class of data-theft victims who sued the company that their data was taken from. The introduction of the Court’s opinion:

The dispute at the bottom of this putative class action began when two laptops, containing sensitive personal information, were stolen from health insurer Horizon Healthcare Services, Inc. The four named Plaintiffs filed suit on behalf of themselves and other Horizon customers whose personal information was stored on those laptops. They allege willful and negligent violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., as well as numerous violations of state law. Essentially, they say that Horizon inadequately protected their personal information. The District Court dismissed the suit under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. According to the Court, none of the Plaintiffs had claimed a cognizable injury because, although their personal information had been stolen, none of them had adequately alleged that the information was actually used to their detriment.

We will vacate and remand. In light of the congressional decision to create a remedy for the unauthorized transfer of personal information, a violation of FCRA gives rise to an injury sufficient for Article III standing purposes. Even without evidence that the Plaintiffs’ information was in fact used improperly, the alleged disclosure of their personal information created a de facto injury. Accordingly, all of the Plaintiffs suffered a cognizable injury, and the Complaint should not have been dismissed under Rule 12(b)(1).

Joining Jordan was Vanaskie. Judge Shwartz concurred in the judgment based on her view that the plaintiffs’ loss of privacy, apart from any statutory violation, constitutes injury in fact. Arguing counsel were associate Erich Schork of Chicago for the plaintiffs and Kenneth Chernof, litigation co-chair of Arnold & Porter, for the company.

New opinion: Third Circuit affirms dismissal of vehicle-shipping private antitrust suit

In re: Vehicle Carrier Services Antitrust Litig. — antitrust — affirmance — Shwartz

Offhand, I can’t recall ever before seeing a Third Circuit opinion with 95 lawyers listed in the caption. The caption fills the first 11-plus pages of the slip opinion. Holy cannoli, that’s a heap of billable hours to end up at “affirm.”

Broadly, this appeal arose out of a suit brought by auto-industry plaintiffs against vehicle-shipping companies alleging that the shippers colluded to keep up prices. The district court dismissed the suit and today the Third Circuit affirmed: “Because the ocean common carriers allegedly engaged in acts prohibited by the Shipping Act of 1984 … and the Act both precludes private plaintiffs from seeking relief under the federal antitrust laws for such conduct and preempts the state law claims under circumstances like those presented here, the District Court correctly dismissed the complaints.”

Joining Shwartz were Ambro and Fuentes. Arguing counsel were Richard Kilsheimer of New York and Warren Burns of Texas for the appellants, and Mark Nelson of Cleary Gottlieb in D.C., and former Rendell clerk Jason Leckerman of Ballard Spahr for the appellees.

UPDATE: the court issued an amended opinion on 1/26 correcting typos and formatting. I’ve updated the opinion link to go to the revised version.

New opinion — Third Circuit clarifies appellate immigration jurisdiction

Park v. AG — immigration — dismissal — Fuentes

South Korean citizen Sang Goo Park entered the US on a visitor’s visa, and the visa stated that he had been employed at an electronics company when in truth he was a cook. The discrepancy came to light some years later when Park filed an approved petition from his employer to adjust his status. In what seems like an insane misallocation of government resources, the government decided to deport him over this, and years upon years of litigation ensued.

The issue in today’s appeal is crisply summarized in the opinion’s introduction (cite omitted):

He now claims that, in the years since the removal order, he has become eligible for a “§ 212(i)” waiver of inadmissibility. He would like the Board of Immigration Appeals (“BIA” or “Board”) to reopen his removal proceedings so that he might apply for the waiver, but he faces an imposing obstacle. Because of the passage of time, his only route to reopening lies through 8 C.F.R. § 1003.2(a), commonly known as the “sua sponte” reopening provision. Under that regulation, the BIA may reopen a case at any time. The BIA has held, however, that it will do so only in extraordinary circumstances. As a result, the BIA’s discretion in this area is broad—so broad, in fact, that we have no meaningful way to review it, thereby depriving us of jurisdiction over orders denying sua sponte reopening.

Park’s petition invokes one of the limited exceptions to the rule against review. He argues, as he did before the agency, that the BIA has consistently reopened sua sponte for aliens like him who have become eligible for relief from removal after their cases have ended. By ruling consistently in this way, Park contends, the BIA has established a rule or “settled course of adjudication” that it is now bound to follow, or at least from which the BIA may not depart without explaining itself. Park also points to our two precedential opinions interpreting this “settled course” exception, Chehazeh v. Att’y Gen. and Cruz v. Att’y Gen., as weighing in favor of our ability to review the BIA’s decision.

Park’s petition gives us an opportunity to clarify our jurisprudence surrounding the “settled course” exception, which originated over a decade ago but has existed since without a framework. In part, this requires us to interpret Chehazeh and Cruz, which Park reads as being broader than they actually are (a mistake he is not alone in making).

The opinion noted that Third Circuit non-precedential opinons have applied the settled course exception inconsistently, sometimes suggesting that a bare allegation was enough to confer appellate jurisdiction. The court rejected that approach, holding that a petitioner seeking to invoke the exception must establish that the BIA limited its discretion through a settled course, and explaining that this showing must be such that the BIA’s ruling “can be meaningfully reviewed” and “must be persuasive enough to allow the reasonable inference that the BIA’s discretion has in fact been limited.” Applying this framework, the court held that Park’s showing failed and dismissed his petition.

Joining Fuentes were Ambro and Shwartz. Surprisingly, the case was decided without oral argument; petitioner’s counsel was David Kim of New York.

New opinion — Third Circuit issues major ADEA ruling creating circuit split

Karlo v. Pittsburgh Glass Works, LLC — employment discrimination — partial reversal — Smith

The Age Discrimination in Employment Act protects employees who are 40 and older against age discrimination, and a plaintiff can prove an ADEA violation by showing that that the employer’s action had an age-based disparate impact.

But suppose the employer takes an action that disproportionately impacts only its oldest employees, not all over-40 employees. For example, imagine an employer has a round of layoffs where it terminates lots of its over-60 employees, but keeps enough of its age-40-to-60 employees that, overall, the impact on over-40 employees (i.e. all employees who fall within ADEA’s scope) is proportionate. Can proof of a disparate impact on only the over-60s — a ‘subgroup claim’ — state a valid ADEA age-discrimination claim?

Today, the Third Circuit answered that question in the affirmative. In so holding, it expressly split with the Second, Sixth, and Eighth Circuits, noting, “While we are generally reluctant to create circuit splits, we do so where a “compelling basis” exists.” It’s a tour de force opinion, thorough and clear and persuasive. An explicit circuit split on an important issue makes this a strong candidate for Supreme Court review, naturally.

The court also reversed the district court’s exclusion of a statistics expert under Daubert and FRE 702, summarizing the Daubert standard thus (cites omitted):

“The test of admissibility is not whether a particular scientific opinion has the best foundation, or even whether the opinion is supported by the best methodology or unassailable research.” Instead, the court looks to whether the expert’s testimony is supported by “good grounds.” The standard for reliability is “not that high.” It is “lower than the merits standard of correctness.”

Joining Smith were McKee and Restrepo. Arguing counsel were Samuel Cordes from Pittsburgh for the plaintiffs, David Becker from Chicago for the company, Neal Mollen of Paul Hastings as amicus US Chamber of Commerce supporting the company, and Anne Occhialino of the EEOC as amicus supporting the plaintiffs.

Third Circuit re-issues Mateo-Medina

After issuing a published opinion on December 30 and then mysteriously withdrawing it on January 3, the Third Circuit today issued a revised opinion in US v. Mateo-Medina, again remanding for resentencing on a finding that the district court committed plain error by relying in part on arrests that did not result in convictions.

It’s not immediately obvious to me exactly what changes the panel made to the previously-issued opinion, which no longer is on the court’s website for side-by-side comparison.

UPDATE: see D’s helpful comment with a link to the old opinion and identifying changes.

New opinion — habeas petitioners can’t establish miscarriage of justice without proving innocence

Coleman v. Superintendent — habeas corpus — affirmance — Hardiman

The Third Circuit today affirmed a denial of habeas corpus relief, holding that the petitioner failed to make a strong enough showing of a miscarriage of justice to excuse the untimeliness of his petition. The court rejected Coleman’s argument that he could satisfy the miscarriage-of-justice standard without proving his innocence.

Joining Hardiman were McKee and Rendell. The case was decided without oral argument.

New opinion — court blocks attempt to raise Alleyne challenge in 2241 petition

Gardner v. Warden — habeas corpus — affirmance — Hardiman

The Third Circuit today held that challenges to criminal sentences based on Alleyne v. United States must be brought under 28 USC 2255 and not 2241. The ruling followed a 2002 ruling by the court similarly blocking 2241 sentencing challenges based on Apprendi v. New Jersey. The court also refused to reach challenges to the prisoner’s other sentences under its concurrent-sentences doctrine, rejecting his argument that the special assessment he received for those convictions was sufficient to warrant review but noting that Third Circuit precedent “leaves some room to argue that other ‘adverse collateral consequences’ of multiple convictions may” support review.

Joining Hardiman were McKee and Rendell. The case was decided without oral argument.

Third Circuit vacates an opinion it published last week

In a terse order entered late this afternoon, the Third Circuit vacated the published opinion and judgment it entered on December 30 in U.S. v. Mateo-Medina. Today’s order was signed by the clerk and simply says it was entered “[a]t the direction of the Court.”

In the over two and a half years I’ve done this blog, this is the first time I’ve seen the court pull back a published opinion like this. So, this is not a normal development.

A commenter to my original post, PhilFan, offered this take:

Perhaps the panel/author published the opinion before the requisite number of full court review days passed?? Or perhaps someone miscounted and there are enough votes for rehearing??

Maybe so. But, offhand, I doubt that the first possibility, alone, would result in vacatur, and I think the second possibility would result in a different order.

Another possibility is that, after further reflection, the panel decided that there was a problem with the original decision that was serious enough to impact which side wins and clear enough not to see if the government sought rehearing.

We’ll just have to wait to see what the court does next. Among its options, it could call for additional briefing, set the appeal for oral argument (the original opinion was issued without argument), or issue a new panel opinion.

New opinion — Third Circuit closes the year with a remarkable criminal-sentencing reversal [updated]

US v. Mateo-Medina — criminal — reversal — McKee

UPDATE 1/3/17: as discussed in the comments here, the court vacated this opinion today. Stay tuned.

UPDATE 1/9/17: revised opinion here, and the original opinion is no longer on the CA3 website.

The Third Circuit today reversed a criminal sentence under plain error review, holding that the district court plainly erred when it considered the defendant’s bare arrests (arrests that did not result in convictions) in deciding his sentence.

Two points bear noting.

First, the court reversed under plain error even though the district court did not explicitly say it was considering bare arrests in deciding the sentence. The district court said it could not overlook his rather extensive criminal history, and it noted his seven [actually six] arrests and two convictions. The court said the error was still plain because the court could not have thought the two convictions alone were a rather extensive criminal history. That makes sense as far as it goes, although offhand I’m not sure how comfortably it jibes with all the other ways sentencing judges consider conduct the defendant was never convicted of.

Second, the court emphasized that relying on bare arrests exacerbates the impact of implicit bias on sentences:

The Sentencing Project Report also remarked on recent research indicating that police are more likely to stop, and arrest, people of color due to implicit bias. Implicit bias, or stereotyping, consists of the unconscious assumptions that humans make about individuals, particularly in situations that require rapid decision-making, such as police encounters.32 “Extensive research has shown that in such situations the vast majority of Americans of all races implicitly associate black Americans with adjectives such as ‘dangerous,’ ‘aggressive,’ ‘violent,’ and ‘criminal.’”33 In addition, a recent empirical study analyzed thirteen years’ worth of data on race, socioeconomic factors, drug use, and drug arrests.34 The study found that African-Americans, Hispanics, and whites used drugs in roughly the same percentages, and in roughly the same ways.35 The study controlled for variables such as whether the participant lived in high-crime, gang-controlled areas. Despite those controls, the study concluded that “in early adulthood, race disparities in drug arrest[s] grew substantially; as early as age 22, African-Americans had 83% greater odds of a drug arrest than whites and at age 27 this disparity was 235%.”36 With respect to Hispanics, the study found that socioeconomic factors such as residing in an inner-city neighborhood accounted for much of the disparity in drug arrest rates.37

Pretty extraordinary.

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


New opinion — a significant Eleventh Amendment immunity reversal

Malandi v. Montclair State Univ. — civil — reversal — Krause

The Third Circuit today held that Montclair State University is an “arm of the state” and thus entitled to Eleventh Amendment immunity from federal suit. The opinion resolves a split among district courts in the circuit and gives a thorough review and application of the court’s Eleventh Amendment precedent applicable to state universities.

Joining Krause were Ambro and Thompson D-NJ by designation. Arguing counsel were Jennifer McGruther for New Jersey and Michael DiChiara of Krakower DiChiara for the appellees.

New opinions — an immigration win and two criminal-appeal affirmances

Rodriguez v. AG — immigration — petition granted — Shwartz

The Third Circuit today granted a Domincan Republic citizen’s petition for review because the conviction that triggered his removal proceedings had been vacated and the notice of removal did not say that his placement in a deferred adjudication program supported removal.

Shwartz was joined by Ambro and Fuentes. The case was decided without argument; winning counsel was Fabian Lima.


US v. Robinson — criminal — partial affirmance — Roth

A divided Third Circuit panel today affirmed a criminal conviction but remanded, after the government’s concession of error and with no analysis, for a re-determination of whether the defendant is a career offender. The key issue on appeal was whether a defendant who uses a gun during a Hobbs Act robbery commits a “crime of violence” per 18 USC 924(c). The court held that the gun-use crime qualifies as a crime of violence when the defendant is tried and convicted together of both gun use and robbery.

Roth was joined by McKee; Fuentes concurred in part and concurred in the judgment. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Bernadette McKeon for the government.


US v. Galati — criminal — affirmance — Roth

A similar panel affirmed another criminal conviction against a similar challenge brought by the same counsel. The panel expressly followed the Robinson decision described above and described this case as bearing a striking resemblance.

Joining Roth were McKee and Jordan. Arguing counsel were Brett Sweitzer for the defendant and Mark Coyne for the government.


New opinion — disabled children over 17 don’t qualify for child tax credit

Polsky v. United States — tax — affirmance — per curiam

The Third Circuit today held that parents of disabled children over age 17 are not eligible for the child tax credit under 26 USC 24, only a dependent deduction.

The panel was Shwartz, Cowen, and Fuentes. The case was decided without argument. Published per curiam opinions are rare in the Third Circuit, and my guess is the reason it is per curiam is because the appellant parents were pro se.

New opinion — court affirms government official’s bribery and extortion conviction

US v. Willis — criminal — affirmance — Fuentes

The Third Circuit today affirmed the conviction and sentence of a Virgin Islands official for bribery and extortion. The official argued in part that his conviction was invalid because the government failed to allege  a quid pro quo — the circuits have split over whether one is required. The court held that, if a quid pro quo is required, it was alleged adequately here. The court also rejected various fact-based challenges.

Joining Fuentes were Vanaskie and Restrepo. Arguing counsel were Jeffrey Molinaro of Miami for the appellant and Justin Weitz for the government.

New opinion — Third Circuit rules for plaintiff in USERRA suit

Carroll v. Delaware River Port Auth. — civil / employment-discrimination — remand — Fuentes

The federal Uniformed Services Employment and Reemployment Rights Act generally bars employment discrimination on the basis of military service. The Third Circuit today held that plaintiffs in failure-to-promote discrimination suits under USERRA need not plead or prove they were objectively qualified for the promotions. Defendants can assert lack of qualification as a non-discriminatory-justification defense.

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

Supreme Court grants cert in to review Third Circuit religious-hospital ERISA case

The Supreme Court today granted certiorari to review a Third Circuit case. In Kaplan v. St. Peter’s Healthcare System, the Third Circuit a year ago ruled against a Catholic hospital in an employee-retirement-plan appeal. The Third Circuit ruled that, although a certain ERISA exemption would apply to a retirement plan established by a church and then maintained by a church agency, it did not apply to plans established by a church agency. I wrote at the time, “A phalanx of amici appeared on both sides and the opinion notes that a Seventh Circuit case involving the same issue is pending now, so I doubt this fight is over yet.”

Sure enough, today the Supreme Court granted cert, consolidating the case with the Seventh Circuit case plus a Ninth Circuit case. The petitioners are represented by Arnold & Porter Supreme Court powerhouse Lisa Blatt.

New opinion — failure-to-warn contractors can invoke govnerment-contractor defense, and parties can’t incorporate by reference

Papp v. Fore-Kast Sales Co. — civil — reversal — Jordan

The Third Circuit today reversed a district court decision that remanded a removed case to state court. The court held that the federal-officer removal statute extends to contractors who possess a colorable defense and that the contractor met that standard here. In practice, that means that the court extended the government-contractor defense to failure-to-warn cases. The court rejected the district court’s view that, to invoke the removal statute in a failure-to-warn suit, the defendant-contractor had to show that a federal officer directly prohibited the contractor from warning third parties. The opinion relied heavily on the court’s 2015 ruling in Defender Ass’n of Phila.

Today’s opinion contains an important appellate-practice holding. The court ruled that the appellee had forfeited an alternative basis for affirmance that it raised only in a two-sentence footnote describing the issue as fully briefed below. Allowing parties to preserve arguments through incorporation by reference would nullify the word limits, the court said, and “[t]hat cannot be permitted.” I’m no fan of incorporation by reference, but offhand I would have thought appellees could get away with it due to the rule that the court could affirm on any ground supported by the record.

Joining Jordan were Vanaskie and Krause. Arguing counsel were Martin Gaynor III of Boston for the contractor and Jeffrey Blumstein of Szaferman Lakind for the appellee.

New opinion — no jurisdiction to hear opt-in plaintiffs’ challenge to FLSA decertification

Halle v. West Penn Allegheny Health Sys. — civil — dismissal — Smith

Hospital employees sued a hospital under the Fair Labor Standards Act for failing to pay them for work during meal breaks. They sought to proceed as an FLSA collective action (analogous to a class action) on behalf of similarly situated employees, but the district court decertified the collective action on the ground that the claimants were not similarly situated. In a prior appeal, the Third Circuit dismissed for lack of appellate jurisdiction, ruling that a decertification order is not appealable and a voluntary dismissal does not make it so. Employees filed a new suit, in which the district court denied collective-active certification on issue preclusion grounds.

The present appeal was brought by employees who tried to opt into the successor suit. The Third Circuit began by detailing what an FLSA collective action is, how it works, and how it differs from a class action, including an affirmative opt-in requirement. After this lucid overview, the opinion sua sponte held that it lacked jurisdiction over the appeal because the appellants’ claims were dismissed without prejudice and thus have no appealable final order. The court rejected the employees argument that it should hear the appeal because the defendants picked off the original plaintiff.

Joining Smith were Ambro and Fisher. Arguing counsel were Nelson Thomas of NY for the employees and David Fryman of Ballard Spahr for the hospital.

New opinions — employment and bankruptcy

FOP Lodge 1 v. City of Camden — employment discrimination — reversal in part — McKee

Camden, NJ, adopted a policing policy they called “directed patrols,” which required officers to make brief passes through specific areas. During these passes officers were to interact with community members and try to get their names and addresses. The local police union filed suit, arguing the policy violated NJ state law barring policing quotas, that officers suffered retaliation for not complying with and protesting against it, and other claims. The district court dismissed on all counts. Today, the Third Circuit affirmed on all grounds except for claims brought under NJ’s employee-whistleblower statute, on which it reversed and remanded.

Joining McKee were Ambro and Scirica. Arguing counsel were Gregg Zeff for the police union and John Eastlack Jr. of Weir & Partners for the city.


In re: Energy Future Holdings Corp. — bankruptcy — reversal — Ambro

The introduction to this opinion reads:

We address what happens when one provision of an indenture for money loaned provides that the debt is accelerated if the debtor files for bankruptcy and while in bankruptcy it opts to redeem that debt when another indenture provision provides for a redemption premium. Does the premium, meant to give the lenders the interest yield they expect, fall away because the full principal amount is now due and the noteholders are barred from rescinding the acceleration of debt? We hold no.

A confession: I haven’t the foggiest what that means.

Joining Ambro were Smith and Fisher. Arguing counsel, bankruptcy specialists all, were Philip Anker of Wilmer Cutler for one appellant, Gregory Horowitz (a Stapleton clerk) of Kramer Levin for other appellants, and Andrew McGaan of Kirkland & Ellis for the appellees.

New opinion — Voiding union contracts in budget crisis violated Contract Clause

United Steel Paper & Forestry Rubber Manu. Allied Ind. & Svc. Workers Int’l Union AFL-CIO-CLC v. Gov’t Virgin Is. — labor — reversal — Fisher

The introduction of yesterday’s opinion is a model of concision and clarity:

In 2011, the Virgin Islands faced a severe budget crisis as a result of the economic recession. In response to this crisis, the Government of the Virgin Islands enacted the Virgin Islands Economic Stability Act of 2011 (“VIESA”), 2011 V.I. Sess. Laws 84, which reduced most Government employees’ salaries by 8%. Many of the Government employees, however, were covered by collective bargaining agreements negotiated on their behalf by their representative unions. The collective bargaining agreements, agreed to and signed by the Governor on behalf of the Government, set forth detailed salary and benefit schedules to be paid to covered Government employees.

The unions brought suit alleging that the salary reductions in VIESA constituted an impermissible impairment of the collective bargaining agreements, in violation of the Contract Clause of the United States Constitution. The District Court, after a bench trial, held that VIESA did not violate the Contract Clause. We will reverse.

The court rejected the government’s mootness argument, finding the ‘evading review’ exception inapplicable but ruling that the challenged law’s continuing collateral consequences preclude mootness. On the merits, the court ruled that VIESA violated the Contract Clause because it was unreasonable: the government knew about the financial crisis when it negotiated the contracts it later voided, and it promised the unions it could pay the contract rates in exchange for other concessions. Said the court, “The Contract Clause is not toothless.”

Joining Fisher were Krause and Roth. Arguing counsel were Nathan Kilbert for the unions and Samuel Walker for the government.

UPDATE: News coverage in the St. Thomas Source is here.

If the court wouldn’t have let you present it, it’s not something you could reasonably have presented

The Third Circuit issued a non-precedential opinion in US v. Scott yesterday, affirming denial of a post-conviction challenge to a criminal conviction, and, respectfully, I think it’s wrong.

From the opinion (I’ve omitted most cites and footnotes from these quotes):

[Scott] argues that the trial court erred in not allowing him to withdraw his plea. This argument relies on Scott’s belief that he withdrew the plea before it was formally accepted by the trial court. Because Scott believes he withdrew the plea before it was accepted, he argues that, under Federal Rule of Criminal Procedure 11, he should have been allowed to withdraw it “for any reason or no reason.” Scott also believes that he is not estopped from bringing this claim because Martino’s testimony constitutes new evidence, obtained after direct appeal, which resolves the factual issue of when he moved to withdraw the plea.

Here’s the controlling rule:

Generally, a § 2255 proceeding may not be used to relitigate questions that were raised and considered on direct appeal.  We have held, however, that relitigation may be allowed for “newly discovered evidence that could not reasonably have been presented at the original [appeal]”

Here’s the issue:

On direct appeal, Scott argued that the trial court abused its discretion because it accepted the plea after Scott requested to withdraw it. In support of this assertion, Scott cited transcript excerpts of the August 15, 2008 on-the-record conference. The statements made at this conference, however, did not support his asserted timeline of events—rather, they depict the trial court as accepting the plea before Scott’s counsel makes any comments regarding withdrawal. Given this record, we concluded that there was no basis to conclude that the trial court erred in accepting the plea.

Now, Scott argues that relitigation is appropriate because he presents new evidence discovered after his direct appeal—namely, [trial counsel] Martino’s testimony regarding the off-the-record conference in which Martino made an oral motion to withdraw the plea. Scott argues that this new evidence provides the factual predicate for his plea-withdrawal claim that was not available to him previously.

Based on Martino’s testimony, we agree that Martino orally moved to withdraw the plea before it was accepted by the trial court.

So Scott wins? No, and here’s where things gets weird:

[E]vidence of the off-the-record conference is new, material to Scott’s instant claim, and directly relevant to our disposition of his claims on direct appeal. But that the evidence has these characteristics, is not to say that relitigation is appropriate. We must also conclude that the evidence “could not reasonably have been presented at the original trial,” or for our purposes, on direct appeal.

We conclude that Scott cannot show that he could not reasonably have presented this evidence on direct appeal. First, there is evidence that Scott had personal knowledge of the off-the-record conference and Martino’s oral motion to withdraw the plea even though he was not present. On direct appeal (where he was represented by different counsel), Scott stated that “the plea was accepted in chambers without the presence of the Defendant and after Defendant’s counsel had orally moved to withdraw the plea.” Brief of Appellant at 17, Scott, 434 F. App’x 103 (No. 09-2576). That Scott made this assertion suggests that he had some knowledge that the oral motion to withdraw the plea was made.

Further, given that the record strongly suggests that Scott had knowledge of this purportedly new evidence, his failure to even attempt to present it on direct appeal contradicts any indication of diligence. While it is true that, as a general matter, courts are limited to the trial court record on appeal,8 there is no evidence that Scott made any attempt to obtain a statement from Martino and move to supplement the record. Due diligence does not require that the court accept a defendant’s new evidence; it simply requires that the defendant make some meaningful steps toward obtaining the evidence and presenting it to the reviewing court. Based on the record before us, it appears Scott took no such steps and thus we cannot conclude that the new evidence could not have been reasonably presented on direct appeal.
Thus, because Scott presents no facts from which we can infer diligence, we conclude that Scott cannot lift the relitigation bar.

(That footnote 8 begins, “It is likely that none of the exceptions to this nearly categorical rule would have applied to Scott.”)

So, here’s what we have. On direct appeal, Scott asserted that his counsel tried to withdraw the guilty plea before it was accepted by the judge. But that assertion relied on a fact not in the record, and, really, it was clear as day that the law barred him from getting that new evidence into the record on direct appeal. Now, many good direct-appeal lawyers would not make an extra-record fact assertion like that. But Scott’s bold move actually wasn’t bold enough! This opinion seems to say he also had to try to get a statement from the lawyer and then ask the court to allow it into the appellate record. And because he didn’t make that goofy request, his new evidence “could … reasonably have been presented” on appeal.

That’s not how I see it. If the court wouldn’t have let you present it, it ain’t something that you could reasonably have presented.

And this holding isn’t just wrong but wrong-headed, because from now on cautious Third Circuit lawyers have to festoon their criminal appeals with dead-on-arrival requests to admit new evidence.

If I knew a rehearing dance, I’d be doing it.

New opinions — “crime of violence” deportation trigger is unconstitutionally vague

Baptiste v. AG — immigration — reversal — Greenaway

The Third Circuit held that the statutory “crime of violence” standard, like the armed-career-criminal residual clause, is unconstitutionally vague. This holding deepens a circuit split. The court ruled that the petitioner here still is deportable, though, because he was convicted of two ‘crimes involving moral turpitude.’

Joining Greenaway were Scirica and Rendell. Arguing counsel were Dickinson School of Law student Penelope Scudder of for the petitioner and Jesse Bless for the government.


US v. Henderson — criminal — affirmance — Vanaskie

The Third Circuit today upheld a district court’s ruling that a criminal defendant was an armed career criminal (and thus subject to a much more severe sentence), holding that PA’s Controlled Substance Act — sorry, what follows is gibberish unless you do criminal appeals —  is divisible and thus subject to the modified categorical approach. The case was argued just over a year ago.

Joining Vanaskie were Fuentes and Jordan. Arguing counsel were Renee Pietropaolo for the defendant and Laura Irwin for the government.

New opinions — Court affirms Facebook-threats conviction again

US v. Elonis — criminal — affirmance — Scirica

Last year, the Supreme Court reversed the Third Circuit’s affirmance of Anthony Elonis’s conviction for making threats on Facebook. On remand, the court today affirmed again, holding that the error was harmless because the jury would have convicted him if it had been properly instructed.

Joining Scirica were McKee and Hardiman. Arguing counsel were Abraham Rein of Post & Schell for Elonis and Mark Levy for the government.


In re: Grand Jury Matter #3 — criminal / jurisdictional — dismissal — McKee

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal from an order allowing the prosecution to show a grand jury privileged emails because, while the appeal was pending, the grand jury indicted the appellant.

Joining McKee was Scirica; Ambro dissented. Arguing counsel were Scott Resnik of New York for the appellant and Mark Dubnoff for the government.

Election drama headed towards Third Circuit?

Elliot Hannon has this story on Slate, published last night, entitled, “DNC Sues RNC Claiming Trump’s ‘Ballot Security’ Effort Is Illegal Voter Intimidation.”

The text of the article (boldface mine, hyperlinks in original):

The Democratic National Committee sued the Republican National Committee in a New Jersey federal court Wednesday, claiming that the RNC has supported and enabled Donald Trump in his claims the election is “rigged,” which, the suit says, is designed to illegally “intimidate and discourage minority voters from voting in the 2016 Presidential Election.” Specifically, the DNC’s suit says that Trump’s efforts to enlist supporters to engage in voter intimidation or “ballot security,” particularly in “other communities”—read: minority communities—violates a decades-old court order designed to prohibit attempts at voter suppression.

Although described as a suit, it’s actually an action to enforce a consent decree entered in an earlier suit whose appeal the Third Circuit heard in 2012, Democratic Nat’l Comm. v. Republican Nat’l. Comm.

Get your popcorn, could be quite a show.

New opinions — ripeness and arbitratrability

Marshall v. Commissioner PA DOC — capital / ripeness — dismissal — per curiam

Having already removed his first set of appointed lawyers, a capital inmate moved to remove the next set of lawyers, too. While his motion was still pending, he filed a notice of appeal, and some time after the district court denied the motion. Today, the Third Circuit dismissed the appeal for lack of jurisdiction, holding that the district court’s post-notice ruling did not cure the lack of ripeness.

The opinion was per curiam; the panel was Smith, Hardiman, and Restrepo. The case was decided without argument.

South Jersey Sanitation v. Applied Underwriters Captive Risk Assurance Co. — civil / arbitration — reversal — Greenaway

The Third Circuit today reversed a district’s denial of a motion to compel arbitration, holding that the challenges to arbitration failed because they applied to the contract as a whole instead of the arbitration agreement alone, and thus were issues for the arbitrator to decide instead of grounds to avoid arbitration.

Joining Greenaway were Jordan and Hardiman. Arguing counsel were Thomas Quinn of Wilson Elser for the appellant and Louis Barbone of Jacobs & Barbone for the appellee.


New opinion — local official entitled to qualified immunity

Zaloga v. Borough of Moosic — civil rights — reversal — Jordan

The Third Circuit today reversed a district court’s denial of summary judment on qualified-immunity grounds. The introduction:

This case is an appeal from an interlocutory decision denying defendant Joseph Mercatili’s claim to qualified immunity. Dr. Edward Zaloga, who had been engaged in an ongoing feud with local government officials, publicly opposed Mercatili’s reelection as the President of the Moosic, Pennsylvania Borough Council. Mercatili allegedly retaliated against Zaloga by seeking to damage his business interests.

Zaloga brought this § 1983 suit against several county entities and individuals, alleging various constitutional violations, including Mercatili’s retaliation. The United States District Court for the Middle District of Pennsylvania granted the defendants’ motion for summary judgment with respect to all defendants except Mercatili. The Court decided that Mercatili’s claim to qualified immunity depended on disputed facts and would have to be resolved by a jury.

Mercatili now appeals, arguing that he is entitled to qualified immunity because his conduct, even if Zaloga’s allegations are true, did not violate clearly established law. We agree and will reverse and remand for the District Court to grant summary judgment in Mercatili’s favor.

Joining Jordan were Smith and Rendell. Arguing counsel were Joshua Autry of Lavery Law for the appellants and Joseph Healey of O’Malley Harris for the appellees.

New opinions — Third Circuit bashes trial court and prosecution but affirms anyway, plus a maritime case

U.S. v. Bailey — criminal — affirmance — McKee

The Third Circuit today held that a district court violated Rule 403 of the Federal Rules of Evidence when it admitted evidence of the defendants’ other bad acts, but that the error was harmless given the overwhelming evidence of their guilt. The defendants were convicted of heroin dealing; the erroneously admitted evidence included a surveillance video of a murder that was related to their drug trafficking. The court noted that it was disturbed by the prosecution’s tactic in using the murder video and “extremely troubled” by the district court’s admission of it, noting (cites omitted):

The extent of the district court’s [Rule 403] balancing regarding this piece of evidence was an off-handed and rather casual remark that the video of James being shot in the head at point blank range “wasn’t very graphic.” With that comment, the district court concluded that the video evidence would be admitted. For reasons known only to the court, the judge added that the admission of this evidence would give the defendants “an appeal issue.” The court was right.

Zing. And because the district court did not explain its 403 reasoning, the Third Circuit didn’t even apply the deferential abuse-of-discretion standard it normally would. But after the obligatory impotent Berger quote — which the opinion itself admitted “seems all too often to resemble the falling tree that no one hears” — the court found the error harmless and affirmed.

The opinion included this remarkable footnote:

Chief Judge McKee notes that he will begin naming attorneys who engage in such tactics in his opinions in order to deter such conduct. He hopes that this practice will stress that harmless error review is not an invitation to resort to unduly prejudicial tactics merely because the evidence is strong enough to obtain a conviction that will likely be immunized against reversal by the harmless error doctrine. He invites his colleagues to do the same.

Well, I’m not his colleague, but the docket lists as lead trial counsel for the prosecution Patrick C. Askin.

Joining McKee were Jordan and Roth. Arguing counsel were John Holiday, Gina Capuano, William Spade, and James Murphy for the four defendants and Norman Gross for the government.


Hargus v. Ferocious and Impetuous — maritime — reversal — Vanaskie

In the circuit’s most interestingly captioned case of the year to date, the Third Circuit today vacated a civil judgment for lack of maritime jurisdiction. And you don’t see this every day:

It bears noting that no entry of appearance was made on behalf of Hargus. Nor was a brief filed on his behalf and neither Hargus nor an attorney acting on his behalf participated in oral argument.

Vanaskie was joined by Fuentes and Restrepo. Arguing counsel was Matthew Duensing of the Virgin Islands for the appellants.

New opinion — court rules for prisoner in speech-retaliation appeal

Mack v. Warden, Loretto FCI — prisoner civil rights — reversal — Fuentes

A divided Third Circuit panel ruled in favor on an inmate alleging violation of his rights. As the majority opinion summarized:

Mack’s allegations raise several issues of first impression in our Circuit, including (1) whether an inmate’s oral grievance to prison officials can constitute protected activity under the Constitution; (2) whether RFRA prohibits individual conduct that substantially burdens religious exercise; and (3) whether RFRA provides for monetary relief from an official sued in his individual capacity. We answer all three questions in the affirmative, and therefore conclude that Mack has sufficiently pled a First Amendment retaliation claim and a RFRA claim. We agree, however, that Mack’s First Amendment Free Exercise claim and Fifth Amendment equal protection claim must be dismissed. We will therefore affirm in part, vacate in part, and remand to the District Court for further proceedings.

Fuentes was joined by McKee; Roth dissented in part, arguing that inmates’ oral complaints should not be First-Amendment-protected speech. Arguing for the prisoner was Duke law appellate clinic student Russell Taylor (supervised by Sean Andrussier), and for the government was Jane Dattilo.

New opinion — paying employees for meals doesn’t excuse failure to pay them for overtime

Smiley v. E.I. DuPont — employment — reversal — Rendell

Employees of DuPont sued the company under the FLSA and state law for not paying them overtime for their off-the-clock time donning and doffing their uniforms and consulting with other employees. DuPont argued that it didn’t have to pay them this overtime because instead it paid them for their meal-break time, which it was not legally required to do. It argued that it could use the meal time for which it paid employees to offset the other time for which it didn’t. The district court agreed with DuPont, but today the Third Circuit reversed.

Joining Rendell were Vanaskie and Krause. Arguing counsel were Thomas Marrone for the employees, David Fryman of Ballard Spahr for Dupont, and Rachel Goldberg for the US Department of Labor as amicus curiae.

Lawyer wins landmark Third Circuit victory, according to himself

Yesterday the online National Law Review published an article reporting on the Third Circuit’s recent qui tam reversal in U.S. ex. rel. Customs Fraud v. Victaulic. The headline calls the decision “an important case of first impression” and “a landmark legal precedent.” The article is written like a news story, which is a little odd since the author is the lawyer who won the case. Odder still, he quotes himself in the story.

“Quoting yourself in a news story you wrote about your own case is something you probably shouldn’t do,” commented Matthew Stiegler, author of the landmark blog CA3blog.

For what it’s worth, here’s his take on why the case is a big deal:

The opinion issued yesterday addresses an issue that had not previously been addressed by any appellate court in the country, namely, whether a company that violates the country-of-origin marking requirement, and fails to pay marking duties, may be sued under the current version of the False Claims Act. The lower court had dismissed the complaint, reasoning, in part, that even if Victaulic had engaged in the alleged wrongdoing, it could not be held liable under the False Claims Act.  In yesterday’s decision, the Court of Appeals reversed, holding that False Claims Act liability “may attach as a result of avoiding marking duties.”

Happy Friday!

New opinions — an immigration reversal on aggravated felonies and a sentencing reversal on loss amount

Singh v. AG — immigration — reversal — Scirica

The Third Circuit today held that a Pa. conviction for possession of counterfeit drugs with intent to deliver is not an aggravated felony that would make the person convicted ineligible for discretionary relief from removal. The court held that the BIA erred by not applying the modified categorical approach. The court granted the petition for review and remanded.

Joining Scirica were Ambro and Jordan. Arguing counsel were Craig Shagin for the petitioner and Elizabeth Chapman for the government.


US v. Free — criminal sentencing — reversal — Fuentes

Here’s one you don’t see every day. A guy with plenty of money to pay his debts filed for bankruptcy and hid hundreds of thousands of dollars worth of assets, except he still had enough assets to pay his creditors in full. Not for nothing does the Third Circuit describe this as “bizarre.” The asset-hiding led to criminal convictions for bankruptcy fraud and a two-year sentence.

The issue in today’s appeal was how to calculate the loss amount for sentencing purposes, given that the creditors lost nothing. The district court used the amount the defendant concealed and the amount of debt he sought to discharge in bankruptcy. The Third Circuit reversed for resentencing, ruling that the loss amount is the amount the creditors lost or the amount the defendant intended to gain. The court noted that the resentencing court still could impose the same sentence, even without any loss enhancement, through an upward departure for lying and disrespect to the court. The court rejected as “too clever by half” his argument that the absence of loss rendered the evidence legally insufficient.

Joining Fuentes were Shwartz and Restrepo. Arguing counsel were Martin Dietz for the defendant and Laura Irwin for the government.



New opinions — a wiretap-suit-standing shocker and a qui tam reversal [updated]

Schuchardt v. President of the U.S. — civil — reversal — Hardiman

Today the Third Circuit ruled in favor of a solo civil practitioner named Elliott Schurchardt appearing pro se and appealing the denial of a pro se suit he brought against the government on behalf himself and others similarly situated. The pro se filer alleged that the NSA’s electronic monitoring violates the Fourth Amendment. The district court dismissed his suit on standing grounds, but the Third Circuit held that the pro se filer’s allegations were sufficient to survive dismissal on standing grounds, even though he alleged that the harm here resulted from collection of “all or substantially all of the email sent by American citizens by means of several large internet service providers.”

I’m going to go way out on a limb and predict a government rehearing petition and/or cert petition.

Joining Hardiman were Smith and Nygaard. Arguing counsel were Schuchardt (his address in the caption is in Virginia, his website lists Tennessee, and 2015 news coverage says Pittsburgh) pro se, and Henry Whitaker of the DOJ appellate section for the government.

UPDATE: seemingly intent on snatching defeat from the jaws of victory, the miraculously prevailing appellant already has been quoted in this news story as follows:

The appellate court ruling, however, limits his ability to subpoena evidence and depose witnesses, apparently exempting anything with a national security classification.

“If that’s the case, I’m not sure how much further the case can go because obviously, this entire area is classified,” said Schuchardt, who is considering an appeal to the Supreme Court on that part of the decision.


U.S. ex rel. Customs Fraud v. Victaulic — civil / qui tam — reversal — Roth

A divided Third Circuit panel today ruled that a district court erred in denying on futility grounds a qui tam relator’s motion for leave to amend its complaint. This appeal arises from the same amazing sitting I wrote about a couple weeks ago, the tenth published opinion from that panel.

Joining Roth was Krause; Fuentes dissented with vigor, arguing, “Whereas Twombly and Iqbal require plausible allegations of wrongdoing, CFI gives us unsupported assumptions and numerical guesswork.” Arguing counsel were Jonathan Tycko of D.C. for the appellant, Henry Whitaker (same one) for the government as amicus appellant, and Thomas Hill of D.C. for the appellee.



New opinion — Third Circuit reverses in hard-fought Avaya appeal

Avaya v. Telecom Labs — civil / antitrust — reversal — Jordan

In an appeal that pitted a former Solicitor General against a former president of the American Academy of Appellate Lawyers, a divided Third Circuit today held that a district court erred by granting a mid-trial motion for judgment as a matter of law in this gigantic antitrust and civil suit. The majority slip opinion runs 118 pages. The dissent, another 15 pages, argues in part that the majority should not reverse based on an argument first made in the reply brief.

Jordan was joined by Greenaway; Hardiman dissented. Superstar arguing counsel were Seth Waxman for the appellant and James Martin for the appellees. (Argument audio here.)

New opinion — Third Circuit upholds rejection of generic drug-maker’s antitrust suit

Mylan Pharma. v. Warner Chilcott — antitrust — affirmance — Fuentes

“Product hopping” is a strategy name-brand drug makers use to suppress competition from makers of generic drugs. By changing their drugs in minor ways, they force generic makers to restart the federal approval process to show that their generic drug is the same. The practice has led to antitrust litigation, including today’s case involving an acne drug sold under the unfortunate brand name Doryx.

Today, the Third Circuit affirmed a district court ruling in favor of the antitrust defendant, holding that the plaintiffs failed to show that the defendants had monopoly power and failed to show that their product-hopping was in fact anti-competitive.

Joining Fuentes’s lucid opinion were Shwartz and Barry. Arguing counsel, amidst a phalanx of amici, were Jonathan Jacobson of Wilson Sonsini for the generic drug-maker and John Gidley of White & Case for the antitrust defendants.

New opinion — Third Circuit blocks hospital merger

Federal Trade Comm’n v. Penn State Hershey Medical Ctr. — antitrust — reversal — Fisher

The Third Circuit today ruled that the government was entitled to a preliminary injunction blocking the proposed merger of the two largest hospitals in the Harrisburg, Pa., area. The district court had denied the injunction, ruling that the FTC had failed to properly define the relevant geographic market. The Third Circuit’s review was plenary because the lower court misapplied economic theory. On the merits, it explained:

We find three errors in the District Court’s analysis. First, by relying almost exclusively on the number of patients that enter the proposed market, the District Court’s analysis more closely aligns with a discredited economic theory, not the hypothetical monopolist test. Second, the District Court focused on the likely response of patients to a price increase, completely neglecting any mention of the likely response of insurers. Third, the District Court grounded its reasoning, in part, on the private agreements between the Hospitals and two insurers, even though these types of private contracts are not relevant to the hypothetical monopolist test.

Joining Fisher were Greenaway and Krause. Arguing counsel were William Efron for the FTC and Louis Fisher of Jones Day for the hospitals.

Early news coverage by Pennlive here and Legal Intelligencer here. My prior post on the case (quoting a former FTC general counsel saying the district court’s ruling was “appallingly bad”) is here.

New opinion — a quirky little treaty case

Didon v. Castillo — treaty — reversal — Greenaway

The Hague Convention allows a parent to petition for return of a child who has been removed from her country of “habitual residence” in violation of the parent’s rights. In a clear and thorough opinion, the Third Circuit today held that the Hague Convention does not permit a child to have two “habitual residence” countries at the same time, and ruled that the parent’s petition here must be dismissed because the child’s country of habitual residence does not recognize the Hague Convention.

Joining Greenaway were McKee and Fisher. Arguing counsel were civil appeals lawyer Anthony Vetrano of Vetrano Vetrano & Feinman for today’s losing parent and Michelle Pokrifka of CGA Law Firm for the winning parent.

New opinion — Court rejects necessity requirement for class certification

Gayle v. Warden Monmouth County Corr. Inst. — immigration / class action / jurisdiction — reversal — Krause

Today’s lone published opinion was issued by a panel comprised of Judges Fuentes, Krause, and Roth, which sat in February. It’s the third precedential opinion issued by that panel in the past week (Johnson and Hoffman are the other two), and all three are biggies. I went back and looked, and this is the ninth precedential opinion issued by that panel!  (Others include the kindergardener-abduction case, a criminal-sentencing appeal I described as “exceptionally aggressive,” and a big Fourth Amendment home search case.) I don’t normally track such things, but nine published opinions (and counting?) from one panel sitting has to be some kind of a record.

Anyway, today’s opinion arises from a class action suit challenging a federal statute imposing mandatory detention of aliens who have committed certain crimes. The facts and procedural history are complicated, but the gist of it is that the Court ruled today that the district erred by deciding the merits of the suit long after the class representatives’ claims had become moot, depriving both the district court and the Third Circuit of jurisdiction over the entire case except for a motion for class certification. (Oops.) The Court further held that the district court erroneously denied certification based on its view that a class action was “unnecessary” — noting a circuit split, the court held that necessity is not a freestanding basis for denying certification.

Krause was joined by Fuentes and Roth. Arguing counsel were Judy Rabinovitz of the ACLU Immigrants’ Rights Project for the class and Elizabeth Stevens for the government.

An update on the Hoffman case

I posted last Wednesday about an opinion the Third Circuit issued that day in Hoffman v. Nordic Naturals. In Hoffman, the court held that a district court was permitted to bypass the question of whether it had subject-matter jurisdiction over a case when it dismissed the case with prejudice on claim-preclusion grounds. My post criticized the opinion’s reasoning and gave my view that the opinion warranted rehearing.

At the time I posted, I had no connection to the case. I first saw the opinion Wednesday afternoon after the court posted it on its website.

After I published my post, I was contacted by the attorney who was the losing party in the appeal (he had done the appeal pro se), and he has now retained me to seek rehearing in the case.

My readers are entitled to expect that, when I discuss a case I’m involved with, I disclose that, as I did for example here, and I will continue to do that. So I’m posting this explanation to make clear that I had no awareness of the case before the court posted its opinion and no connection to the case at the time of my original post.



New opinions — affirming class certification and re-issuing an immigration opinion

Williams v. Jani-King of Philadelphia — civil / class action — affirmance — Fisher

The Third Circuit today affirmed a ruling certifying a class in a suit brought by two franchisees who allege that they are employees not independent contractors and thus are entitled to state-law wage protections. The class defendants argued that certification was error because the claims were not fit for class resolution, an issue implicating both commonality and predominance. The panel majority rejected this argument, emphasizing that an interlocutory challenge to certification is not the place to decide the merits. Judge Cowen dissented on commonality grounds, arguing that the majority opinion threatens the viability of franchising.

Joining Fisher was Chagares; Cowen dissented. Arguing counsel were Aaron Vanoort of Minnesota for the class defendants and Shannon Liss-Riordan of Massachusetts for the class plaintiffs.

UPDATE: commentary on JDSupra agreeing with the dissent here.


Ordonez-Tevalan v. A.G. — immigration — affirmance –Greenberg

The Third Circuit today granted panel rehearing and issued a new panel opinion in Ordonez-Tevelan v. A.G. The prior opinion is here, my summary is here. The disposition is unchanged, and my quick comparison of the two cases failed to reveal to me what changed. If an eagle-eyed reader alerts me I’ll update this post.



New opinion — split panel upholds dismissal of suit against officer who confronted and killed man high on PCP

Johnson v. City of Philadelphia — civil rights — affirmance — Fuentes

A lone police office responding to a radio call arrived on the scene to find a man “standing in the street, naked, high on PCP, and yelling and flailing his arms.” Police department policy directed the officer on what to do: “DEESCELAT[E] THE INCIDENT” by waiting for back-up, attempting to de-escalate through conversation, and retreating instead of using force. But, instead, the officer ordered the man to approach him. A confrontation ensued, the man reached for the officer’s gun, and the officer tasered the man and then used his gun to kill him. The man’s estate sued the officer and the city for excessive force.

Today, a divided Third Circuit panel affirmed dismissal of the man’s suit. The majority left open the possibility that an officer’s reckless initiation of an encounter could form the basis for an excessive-force claim, and also that the officer’s violation of department policy may be used to assess the reasonableness of a seizure. But the majority upheld dismissal of the suit on proximate-cause grounds, holding that there was no evidence from which a reasonable jury could find the requisite nexus between the officer’s act and the resulting death.

Judge Roth (notably, the only judge on the panel nominated by a Republican president) dissented, arguing, “By knowingly violating a police department regulation designed to keep mentally disturbed individuals safe, Dempsey set into motion the confrontation that ultimately led to Newsuan’s death – a confrontation whose foreseeability was the impetus for the establishment of Directive 136.”

Fuentes was joined by Krause, with Roth dissenting. Arguing counsel were Armando Pandola Jr. of Abramson & Denenberg for the estate and Craig Gottlieb of the city law department for the city.

New opinion — admission of police officers’ opinion testimony clear error, but harmless

U.S. v. Fulton — criminal — affirmance — McKee

The Third Circuit today held that the trial court committed obvious errors by admitting two police officers’ lay-opinion testimony, but that the errors were harmless in light of other proof of the defendant’s guilt. In order for lay-opinion testimony to be admissible under FRE 701, it must be (among other things) helpful to the jury. The Third Circuit held that one officer’s testimony interpreting phone records was not helpful because it was “dead wrong and even misleading.”  Other testimony about whether two people looked alike was not helpful because the officers were not sufficiently familiar with the people they were discussing. (This holding relates to the recent Dennis en banc and the circuit’s new eyewitness identification task force.) The court rejected various other challenges.

Joining McKee was Hardiman; Smith concurred but disagreed with the majority’s conclusion that the evidence was admitted erroneously. Arguing counsel were defender Louise Arkel for the defendant and John Romano for the government.

Habeas expert: “Court errs in denying habeas corpus to immigrants”

The title of this post is the headline of this op-ed on today by Professor Eric Freedman. The decision he’s criticizing is Castro v. U.S. Dep’t of Homeland Security, which I discussed here.

Freedman writes:

Regardless of how Congress chooses to label these mothers and children, they are still entitled to a judicial forum. The constitutional protection of habeas corpus forbids Congress from denying people on our soil access to the courts by legislatively announcing that they are not here. Permitting such legerdemain would leave the writ “subject to manipulation by those whose power it is designed to restrain.”

Two big new opinions for the civ pro nerds [updated]

The Third Circuit issued two published opinions today, both fascinating if you enjoy tricky civil procedure issues.


Hoffman v. Nordic Naturals — civil — affirmance — Fuentes

Imagine you file a suit in state court. The defendant removes the case to federal court and then urges the federal court to dismiss your suit on a procedural ground. You’re sure the federal court has no jurisdiction at all to hear the case and so must remand it. The district court agrees with the defendant that dismissal would be warranted on the procedural ground — and it agrees with you that it has no jurisdiction. So what should the district court do?

Before today, I would have said the answer was dead obvious — the district court has to remand because it lacks jurisdiction. Without jurisdiction, it can’t decide your case, no matter how good it thinks either party’s arguments are, and no matter whether those arguments go to the merits of your claims or instead rest on a procedural ground.

But today the Third Circuit reached the opposite conclusion: “The District Court was . . . permitted to ‘bypass’ the jurisdictional inquiry in favor of a non-merits dismissal on claim preclusion grounds,” because “a court is not required to establish jurisdiction before dismissing a case on non-merits grounds.” That rationale seems wrong to me.

Here’s how the issue arose: plaintiff Harold Hoffman brought class-action lawsuit #1 in state court. The defendants removed the suit to federal court pursuant to CAFA, which gives federal courts jurisdiction to hear class actions big enough to meet certain thresholds, including that the amount in controversy exceeds $5 million. The district court denied Hoffman’s remand motion because it held that the suit met CAFA’s thresholds, and then on the merits it dismissed the suit on the pleadings. (Having dismissed the suit on the merits, the court gave Hoffman a chance to amend his suit, which he didn’t do.)

Hoffman then filed suit #2, again in state court. His new claims were basically the same as his old claims, but this time he defined the class more narrowly. Said the Third Circuit, “The purpose of this change, was, it seems, to reduce the amount recoverable and therefore defeat federal jurisdiction.” The defendant again filed notice of removal, Hoffman sought remand because this time CAFA did not confer jurisdiction, and the district court dismissed suit #2.

Today, the Third Circuit affirmed. But, critically, the court did not hold that the district court had jurisdiction over suit #2. Instead, it held that the district court didn’t need to have subject-matter jurisdiction over the case — that is, the removal need not have been legal — if the court ends up dismissing on non-merits grounds, citing the Supreme Court’s 2007 Sinochem case. Sinochem held that “a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case.” In my view, Sinochem is night-and-day different from what the court does here. Sinochem was just about forum selection and efficiency, not about courts nuking cases they don’t have the power to hear.

The whole point of the second removal was to throw out the second suit based on the federal court’s view of the merits. If the federal court didn’t have jurisdiction over the second suit, then it shouldn’t be the one to decide the preclusive effect of its merits ruling in the first suit. Nor should it decide whether tactical gamesmanship in repackaging the second suit warranted its dismissal. Only a court that has jurisdiction over the second suit — here, the state court — should get to decide those things.

As the hypothetical I began this post with suggests, I read today’s opinion to mean that federal courts can decide and dismiss removed state-filed suits — even if the removal was patently illegal — any time they can find a non-merits basis for dismissal. Suffice to say such a rule would be a big deal.

The introduction to today’s opinion emphasizes that the plaintiff here is a “serial pro se class action litigant.” (See, e.g., this law firm’s web page entitled, “Have you been Sued by Harold Hoffman?”) That fact wasn’t relevant to the court’s legal reasoning, but its prominent mention in the opinion may help explain the outcome here. And, frankly, it isn’t easy to imagine the court being eager to grant a rehearing petition filed by that same serial-filing pro se attorney. That’s a shame, because I think today’s opinion does warrant rehearing.

Joining Fuentes were Krause and Roth. The case was decided without oral argument.


UPDATE #1: After I posted the above, I was contacted by the losing party and ultimately retained to prepare a petition for rehearing in the case. I had no connection at all to the case at the time I wrote the post.

UPDATE #2: The same day the court issued its opinion, it also entered an order granting Nordic’s motion under FRAP 38 for sanctions and double its costs for filing an utterly frivolous appeal.


Wallach v. Eaton Corp. — civil — reversal — Krause

The Third Circuit issued a wonderfully cogent opinion today deciding a little point of antitrust procedure and a not-so-little point of class action procedure. The opinion’s introduction crisply explains:

In this case, we are called upon to determine, among other things, the fount and contours of federal common law applicable to the assignment of federal antitrust claims and the reach of the presumption of timeliness for motions to intervene as representatives of a class. Consistent with the Restatement of Contracts and the doctrines undergirding federal antitrust law, we hold that an assignment of a federal antitrust claim need not be supported by bargained-for consideration in order to confer direct purchaser standing on an indirect purchaser; such assignment need only be express, and that requirement was met here. We also hold that the presumption of timeliness, that is, the presumption that a motion to intervene by a proposed class representative is timely if filed before the class opt-out date, applies not only after the class is certified, as we held in In re Community Bank of Northern Virginia, 418 F.3d 277, 314 (3d Cir. 2005), but also in in the pre-certification context. Because the District Court failed to apply that presumption and the intervenors’ motion here was timely considering the totality of the circumstances, we conclude the District Court abused its discretion in denying their motion to intervene on that basis. Accordingly, we will reverse and remand for proceedings consistent with this opinion.

On the antitrust standing issue, the holding (antitrust claim assignments don’t require consideration) matters less than how the court got there. The court followed its prior precedent to conclude that the issue was controlled by federal common law. Since no precedent answered the question, the court then had to decide where to look for the content of federal common law. One side urged the court to look at the state law in all 50 states and adopt the prevailing approach; the other side urged it to follow the Restatement. The court decided that the Restatement was the right starting point and accepted the Restatement’s rule.

The class action timeliness-of-intervention rule has broad significance. The way the issue arose is that the defense sought to knock out the named plaintiff for lack of standing, other members of the putative class realized that the whole suit could be thrown out if the defense standing argument prevailed, so other putative class members moved to intervene but the district court said the intervention request was untimely. The Third Circuit disagreed for practical reasons:

[C]lass members would be compelled to intervene in every class action to protect their interests in the event the proposed class representatives are ultimately deemed inadequate”—giving rise to inefficiencies the class action device was designed to avoid  both before and after class certification. Denying the presumption to putative class members also could result in great inefficiencies and reductions in judicial economy in cases like the one before us, which would be dismissed after years of motion practice and discovery, only to be filed anew by plaintiffs who were unable to simply intervene and carry the motion for class certification through to its conclusion. Further, if the presumption of timeliness applied only to certified classes, then motions to intervene brought prior to class certification might be deemed untimely, even though those same motions would be timely if brought years later, after a class was certified.

(Internal quotation marks, alteration, and citation omitted.) Analyzing the timeliness of the motion to intervene itself, the court ruled that it was timely.

Joining Krause were Chagares and Scirica. Arguing counsel were Emmy Levens of Cohen Milstein for the appellants and Pratik Shah, of Akin Gump, for the appellees. On the appellee’s side alone, I count 22 lawyers on the brief from at least 6 household-name big firms. Fun fact: the lawyer who argued the losing side is co-head of Akin Gump’s Supreme Court and appellate practice; the lawyer who argued the winning side is an associate.

New opinions — is the Third Circuit raising the bar for class certification again?

In re: Modafinil Antitrust Litig. — civil / class action — reversal — Smith

Today a divided Third Circuit panel vacated a district court order certifying a class in a pharmaceutical antitrust suit, announcing a new framework for analyzing the size of the class (“numerosity”). The majority directed that the numerosity inquiry “should be particularly rigorous when the putative class consists of fewer than forty members.” It ruled that the district court erred by placing too much weight on the late stage of the proceeding, directing that on remand the court should not take into account the sunk costs of litigation nor the risk of delay if certification were denied. The majority also held that the district court failed to “fully” explore whether class members could just join instead. The panel unanimously rejected the class defendants’ predominance arguments.

Judge Rendell dissented vigorously from the majority’s numerosity analysis, beginning thus:

Today, the Majority concludes that the able District Court judge abused his discretion by purportedly focusing on a consideration that we have never—indeed, by my research, no court has ever—stated it should not consider. How can that be? Furthermore, how can it be that the Majority mischaracterizes the late stage of the proceedings as being the focus of Judge Goldberg’s ruling when his reasoning actually focuses on the considerations that our case law dictates it should? Also how can it be that in analyzing judicial economy district courts are prohibited from considering the stage of the proceedings? I am perplexed. I am similarly perplexed as to why the Majority is directing the District Court on remand to figure out whether joinder is practicable when the appellants have failed to make that case themselves. I therefore respectfully dissent from part III.A of the Majority’s opinion.

This was Rendell’s second major dissent in two weeks.

Joining Smith was Jordan, with Rendell dissenting in part. Arguing counsel were Bruce Gerstein of Garwin Gerstein for the appellees, and Rowan Wilson of Cravath Swaine and Douglas Baldridge of Venable for the appellants.

UPDATE: news coverage on, describing the court’s ruling as “surprising,” here.


Carpenters Health & Welfare Fund v. Management Resource Sys. — civil / labor — reversal — McKee

The Third Circuit today reversed a district court order dismissing a suit challenging a company’s failure to make contributions to employee funds.

Joining McKee were Fisher and Greenaway. Arguing counsel were Stephen Holroyd of Jennings Sigmond for the appellants and Walter Zimolong III for the appellees.


In re: Asbestos Pros. Liab. Litig. — civil — reversal in part — Scirica

In 1999, the Supreme Court described asbestos litigation as “elephantine.” Over a decade and a half later, the elephant is still lumbering along.

A worker exposed to asbestos died of lung cancer, and his estate sued the corporation whose equipment contained the asbestos he had been exposed to. In a fact-bound ruling applying Indiana law, the Third Circuit today affirmed dismissal of claims related to some of the equipment but reversed dismissal of claims related to other equipment.

Joining Scirica were McKee and Ambro. Arguing counsel were Robert McVoy from Illinois and Christopher Conley from Georgia.

Three new opinions

Associated Builders v. City of Jersey City — civil — reversal — Krause

Jersey City, NJ, offers tax exemptions to developers, but only if they meet certain labor conditions including using union labor, rejecting strikes and lock-outs, and a set percentage of local hiring. Today, the Third Circuit held that, in enacting the labor conditions, the city was acting as a regulator not a market participant. The ruling reversed the district court and meant that the conditions were reviewable for pre-emption and dormant-Commerce-Clause violation.

Joining Krause were Chagares and Scirica. Arguing counsel were Russell McEwan of Littler Mendelson for the appellants, Zahire Estrella for the city, and Raymond Heineman of Kroll Heineman for an intervenor.


Goodwin v. Detective Conway — civil rights — reversal — Fuentes

Rashied Goodwin sued police officers for false imprisonment and malicious prosecution after he was arrested; he alleged that the officers should have known he was innocent because they had a booking sheet indicating he was in jail at the time of the crime. The defendants moved for summary judgment based on qualified immunity, the district court denied the motion, and today the Third Circuit reversed. The court reasoned that the booking sheet did not show that Goodwin was in custody at the relevant time. (I was confused when I read the opinion because the key dates are replaced with empty brackets; I missed fn.6 explaining these are redactions requested by the parties.)

Joining Fuentes were Chagares and Restrepo. Arguing counsel were Eric Pasternack for the officers and Catherine Aiello of Lowenstein Sandler for Goodwin.


US v. Adeolu — criminal — affirmance — Vanaskie

The Third Circuit affirmed a criminal sentence, holding that the USSG 3A1.1(b)(1) vulnerable-victim sentencing enhancement does not require actual harm to the victim, only a nexus between the victim’s vulnerabilty and the crime’s success.

Joining Vanaskie were Greenaway and Shwartz. Arguing counsel were Karina Fuentes of the FPD for the defendant and AUSA Jose Arteaga for the government.


New opinion — a public-sector-employment affirmance

Mancini v. Northampton Co. — civil / employment-civil rights — affirmance — Restrepo

The Third Circuit today affirmed a district court’s rulings in an employment dispute caused when new local Republican leaders fired a county solicitor who was a Democrat. At trial, the jury ruled in favor of the fired employee on her claims against the county but not those against the individual leaders. The court summarized the key issue thus:

This case requires us to consider whether there is an exception to the ordinary requirements of procedural due process when a government employee with a protected property interest in her job is dismissed as part of a departmental reorganization that results in the elimination of her position. We have not previously considered this so-called “reorganization exception.” We hold that a reorganization exception to constitutional procedural due process cannot apply as a matter of law where, as here, there is a genuine factual dispute about whether the reorganization was pretext for an unlawful termination.

The opinion’s introduction refers to the district judge below as “the able trial judge,” a generous tip-of-the-hat in an opinion authored by a judge who until this year sat in the same district.

Joining Restrepo were Fuentes and Chagares. Arguing counsel were Patrick Reilly of Gross McGinley for the appellee/cross-appellant and David Schwalm of Thomas Thomas & Hafer for the appellant/cross-appellee.

UPDATE: early news coverage here.

The government confesses error and the Third Circuit reverses … after the defendant’s lawyer filed an Anders brief

The Third Circuit issued a remarkable unpublished opinion today in a criminal appeal, US v. Parsons, link here. The opinion is by Judge Barry, joined by Judges Fuentes and Shwartz.

I’m not sure I can tell the story any more clearly than the opinion does, so here it is:

In Anders, the Supreme Court emphasized that “[Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability.” 386 U.S. at 744. An attorney may seek permission to withdraw if he finds a case to be “wholly frivolous” after a “conscientious examination” of the record; such request must, however, “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. If the court agrees that the case is wholly frivolous, “it may grant counsel’s request to withdraw and dismiss the appeal,” but, “[o]n the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id.

* * *

In this case, counsel’s brief was, at least technically, inadequate under Anders. Although counsel listed the issue of “[i]nterpretation and application” of § 4A1.2(c)(1) in his statement of issues, he addressed the issue only in two footnotes that fail to explain why it was frivolous. (See Anders Br. at 9-10 n.2, n.3.) He likewise devoted only one sentence to the denial of a reduction for acceptance of responsibility, the second issue raised by Parsons in his pro se brief. (See id. at 19.) Simply stated, counsel failed to meaningfully deal with the two issues later raised by Parsons, such that we can be assured that he has considered them and found them “patently without merit,” see Marvin, 211 F.3d at 781; indeed, the Government itself acknowledges that a non-frivolous issue exists.

Parsons’ argument with respect to § 4A1.2(c) is, as the Government recognizes, non-frivolous. Section 4A1.2(c) provides that certain sentences, including sentences for a disorderly conduct offense, are included in the criminal history calculation only if “the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days” or if the prior offense was “similar to an instant offense.” Here, according to the PSR, Parsons’ 2006 disorderly conduct offense resulted in no punishment beyond the payment of fines and costs, and it is not similar to the instant firearms offenses. See U.S.S.G. § 4A1.2 cmt. n. 12(A). As the Government, to its credit, recognizes, this offense was erroneously counted, and the additional criminal history point bumped Parsons up into Criminal History Category V, resulting in a Guidelines range of 140 to 175 months. Had Parsons correctly been placed in Category IV, his Guidelines range would have been 121 to 151 months. His sentence, a total of 160 months’ imprisonment, could well have been lower had the Court calculated the correct Guidelines range.

The court vacated the sentence and remanded for resentencing without the erroneously-applied criminal history point.

As embarrassing appellate mistakes go, it doesn’t get much worse than filing an Anders brief and then having the court reverse under plain error. The opinion does not identify the attorney by name, but the docket indicates that the Anders brief was filed by Roland B. Jarvis, a Philadelphia lawyer appointed by the court. The AUSA praised by the court is Joseph LaBar.

I applaud the government and the court here. It would have been only human to pay less attention to the pro se brief after the defendant’s own lawyer had certified that the issues were all wholly frivolous, but instead the prosecutor and the judges here did their jobs.

I do have a concern about the court’s ruling, though. The court chose to remand now instead of appointing new counsel and allowing supplemental briefing, and it explained that it did so because “no one, including defense counsel in his effort to comply with the strictures of Anders, even obliquely refers to any potential issue as to the conviction itself.” Is the court saying it is confident that there are no other appealable errors, besides the one the pro se defendant found — and that the basis for this confidence is that no such errors were found by (1) the lawyer who filed the erroneous Anders brief, (2) the pro se defendant, or (3) the prosecution? If so, that confidence seems questionable.

And after the government confessed error but before today’s ruling, the defendant apparently asked the court to appoint new counsel for him, resulting in a clerk order which stated in part:

If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the Court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the Clerk to discharge current counsel and appoint new counsel. As appellant’s request for appointment of new counsel is an inherent part of the Court’s determination when presented with a case submitted pursuant to Anders v. California, 386 U.S. 738 (1967), no action will be taken on appellant’s request.

This order reinforces my uncertainty about whether remand for resentencing without appointment of counsel and supplemental briefing was the right disposition here.

Anyway, a very interesting case.


New opinion — divided panel rejects waiver argument and orders arbitration

Chassen v. Fidelity Nat’l Financial — civil / arbitration — affirmance — Smith

A divided Third Circuit panel today ruled in favor of a civil defendant seeking to compel individual arbitration (that is, non-class arbitration; the opinion refers to it as bipolar arbitration). The court held that the defendant did not waive its arbitration-clause defense — even though it did not raise the defense in two and a half years of expensive litigation below, and even though it could have but did not raise the arbitration defense to obtain class arbitration the whole time — because an effort to compel individual arbitration would have been futile under then-existing law. The majority ruled that the factors it previously had announced for deciding when a party waived an arbitration defense did not control when the sole reason for the delay in asserting the defense is futility.

Judge Rendell — who, as I’ve observed, has been a major force in the court’s recent en banc litigation — dissented. Her opinion began:

The majority’s opinion is flawed for a clear and obvious reason: it relies on caselaw that has no application here. Therefore, I must respectfully dissent.

In Muhammad v. County Bank of Rehoboth Beach, the New Jersey Supreme Court held that “the presence of the class-arbitration waiver in Muhammad’s consumer arbitration agreement render[ed] that agreement unconscionable.” 912 A.2d 88, 100 (N.J. 2006). Yet, despite the lack of a class arbitration waiver in the arbitration clauses here, the majority holds that a New Jersey court in 2009, at the outset of this case, would have found Muhammad controlling here. I reject that view, and urge you to read Muhammad and the actual arbitration clauses at issue here. Doing so will lead inexorably to one conclusion: this case is not Muhammad, and a motion by the Defendants in 2009 to compel arbitration thus would have been anything but futile. Moreover, the majority has expanded the concept of futility beyond what we as a court should recognize.

Seems like a good bet for a petition for en banc rehearing.

Joining Smith was Roth, with Rendell dissenting. Arguing counsel were Michael Quirk of William Cuker for the appellants and Michael O’Donnell of Riker Danzig for the defendant.


Fractured en banc court restores two felons’ gun rights

Suarez v. Attorney General — civil / 2nd Amendment

The en banc Third Circuit ruled today that the federal statute criminalizing gun possession by convicted felons violates the Second Amendment as applied to the two challengers here. It’s the court’s most closely divided en banc ruling since Chief Judge McKee became chief.

On the ultimate outcome, the court split 8 to 7 in favor of the challengers.  The 8 were Ambro with Smith and Greenaway, plus Hardiman with Fisher, Chagares, Jordan, and Nygaard. The 7 were Fuentes with McKee, Vanaskie, Shwartz, Krause, Restrepo, and Roth.

No one rationale commanded a majority of the court. As Eugene Volokh (whose work is cited repeatedly in today’s opinion) ably explains in a blog post here, Hardiman’s 5 embraced a broader view of the Second Amendment, Ambro’s 3 a narrower one.

It’s a fascinating vote split. The court’s most conservative judges voted together, but the moderate and liberal votes were more surprising, which reinforces a broader trend I flagged last year.

The 8-to-7 vote also invites some interesting what-ifs. Judge Rendell went senior over a year ago, and President Obama’s nomination of Rebecca Haywood has languished for almost six months now. If Rendell or Haywood were active judges today, would the en banc court have split down the middle, leaving no precedential decision? It’s possible.

Volokh writes that if the government asks the Supreme Court to grant certiorari, “it’s likely that the court will agree to hear the case.”

Arguing counsel were Patrick Nemeroff for the government, and Alan Gura of Gura & Possessky for the challengers.


New opinions — Bridgegate disclosure, taxpayer standing, and antitrust standing

NJ Media Group v. United States — civil — reversal — Jordan

The Third Circuit today vacated a district court order that had required disclosure of the names of the unidicted co-conspirators in the NJ Bridgegate scandal. The opinion explained, “Although the appeal arises out of a matter of high public interest, the issue presented is basic and undramatic.” The court ruled that a prosecution letter identifying the co-conspirators should be treated like criminal discovery, not a bill of particulars, and thus was not subject to public disclosure.

Joining Jordan were Ambro and Scirica. Arguing counsel were Jenny Kramer of Chadbourne & Parke for the appellant, Bruce Rosen of McCusker Anselmi for media groups seeking disclosure, and U.S. Attorney Paul Fishman for the government.

Early news coverage of the opinion by Ted Sherman on is here.


Nichols v. City of Rehoboth — civil — affirmance — Fisher

A divided Third Circuit panel today held that a taxpayer lacked standing to sue because she failed to show any illegal use of taxpayer funds.

Fisher was joined by Rendell; Cowen dissented. Arguing counsel were David Finger of Finger & Slanina for the appellant and Max Walton of Connolly Gallagher for the appellees.


Hartig Drug Co. v. Senju Pharma. — civil / antitrust / class action — reversal — Jordan

The Third Circuit today ruled that a district court erred when it dismissed an antitrust class action suit under F.R.Civ.P. 12(b)(1) on standing grounds, holding that antitrust standing is not an issue of subject-matter jurisdiction. The appeal arose out of an antitrust suit alleging wrongful suppression of generic competition in the sale of medicated eyedrops. The winning argument was not made by the appellant, prompting the court to write, “Remarkably, Hartig neglects to address the argument at all, except to acknowledge that amici have raised it.” The opinion has some sharp words (“simply not so,” “attempt to change the discussion,” “wholly new argument”) for the appellees, too. Quite a victory for amici.

Joining Jordan were Ambro and Greenberg. Arguing counsel were Brent Landau of Hausfeld for the appellant and M. Sean Royall of Gibson Dunn for the appellee.


Addie v. Kjaer — civil — affirmance in part — Fisher

The Third Circuit largely upheld a district court’s rulings under Virgin Islands law granting pre- and post-judgment interest but denying attorney’s fees. The court ruled that certain prejudgment interest should have been paid at a statutory rate.

Fisher was joined by Krause and Roth. Arguing counsel were former Rendell clerk Robert Palumbos of Duane Morris for the appellants and Sherry Talton of Texas and Maria Hodge of the Virgin Islands for the appellees.

Tanker-spill case heading back to Third Circuit after $180M verdict

Linda Loyd has this story today on, headlined “Judge makes $120M ruling against Citgo in massive 2004 Delaware River spill.” The case arose when a tanker ship struck an old anchor submerged near a refinery dock and spilled more than a quarter of a million gallons into the Delaware River. Loyd reports that the losing defendant has already filed a notice of appeal to the Third Circuit. The case is USA v. Citgo Asphalt Refining Company.

The Third Circuit decided an appeal in the case in 2013, captioned In re: Frescati Shipping, when it vacated a district court ruling in favor of the defendants in a 59-page slip op. that it amended three times. The 2013 opinion noted that future appeals would be referred to the same panel (Ambro, Greenaway, and O’Malley Fed. Cir. by designation).

New opinion — Court affirms denial of qualified immunity for teacher who let stranger take kindergartner

L.R. v. School Dist. of Phila. — civil rights — affirmance — Fuentes

A kindergarten teacher allegedly allowed a total stranger to remove one of his students from the classroom. According to the complaint, the stranger went right to the classroom and asked to take the student, the teacher asked the stranger to show identification and verification that the student had permission to leave school, and the stranger could not. Yet the teacher let his student leave with the stranger anyway, and later that day the stranger sexually assaulted the child. The child’s parent’s sued the teacher and the school district alleging denial of substantive due process, and the district court ruled that the teacher was not entitled to qualified immunity. Today, the Third Circuit affirmed: “we conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger.”

Joining Fuentes were Krause and Roth. Arguing counsel were Jeffrey Scott of Archer and Greiner for the teacher and district and Charles Becker of Kline & Specter, president-elect of the Third Circuit Bar Association, for the parent.

En banc court — minus two judges listed as voted on rehearing, including the panel author — reverses in Chavez v. Dole Food

Chavez v. Dole Food — civil — reversal — Fuentes

The en banc Third Circuit today unanimously reversed a district court order dismissing a suit by Central American farmworkers over alleged pesticide exposure. The prior panel opinion had come out the other way, with Nygaard joined by Greenaway in the majority and Fuentes dissenting.

Needless to say, it is unusual to see a unanimous en banc ruling that reaches a different outcome than the panel majority did. So what happened? Two things, both interesting.

First, Greenaway switched sides. He joined Nygaard’s panel opinion in favor of Dole, but today he joins the en banc court ruling against Dole. He did not write separately to explain his switch.

Second, Nygaard did not participate. He wrote the panel opinion, and the order granting en banc rehearing stated he would participate, but the docket shows he did not participate in oral argument and he was not a member of the en banc panel today. Also, Hardiman was listed as participating in the en banc vote but was not on the en banc panel for argument or decision.

So, why did Nygaard and Hardiman not participate? Answer: I don’t know. Neither today’s opinion nor the docket entries say.

This is a case with a lot of blue-chip-corporation parties like Dow Chemical and Shell Oil, and it would not be surprising if some of the judges owned stock in one of them and thus had to recuse. Now, it would be surprising to me if such a conflict went unrecognized until after the en banc ruling. (But as I mentioned recently, during now-Justice Alito’s Scotus confirmation proceedings, then-Chief Judge Scirica said in 2005 that CA3 judges had been listed by mistake on en banc corams many times. That could explain well Hardiman but not Nygaard.)

For Nygaard, no potential financial conflicts jump out at me on a quick glance at his 2012 financial disclosure, the most recent of his posted on judicialwatch. But what matters is what he owned in 2016, not 2012, and that is not publicly available. Bottom line, if he recused after writing the panel opinion, I can’t tell why. (It does not appear to be health-related since, for example, his is sitting on argument panels next week.) In any event, his withdrawal is unusual.

As to Hardiman, he disclosed dividend income from Dow Chemical in his 2012 disclosure, also the most recent disclosure up on Judicialwatch, although that does not necessarily mean he still did at the time of this en banc case.

Anyway, I’ve gotten all sidetracked on the composition of the court here and haven’t said a thing about the substance of the opinion. From the introduction (footnote omitted):

Our resolution of this appeal is therefore threefold. First, we conclude that the Delaware District Court abused its discretion under the first-filed rule by dismissing the plaintiffs’ claims with prejudice. Second, we conclude that the Delaware District Court erred by refusing to transfer the plaintiffs’ claims against Chiquita Brands International to another forum. And third, we conclude that the timeliness dismissals entered by the Louisiana District Court do not create a res judicata bar to the plaintiffs’ Delaware suits. As these cases come to us today, there is a serious possibility that no court will ever reach the merits of the plaintiffs’ claims. More than twenty years after this litigation began, we think that outcome is untenable—both as a matter of basic fairness and pursuant to the legal principles that govern this procedurally complex appeal.

Joining Fuentes were McKee, Ambro, Smith, Fisher, Chagares, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. Arguing counsel were Jonathan Massey of Massey & Gail for the appellants and Andrea Neuman of Gibson Dunn and Steven Caponi (formerly) of Blank Rome for the appellees.

“Although we will affirm … we do so with some reluctance…. [T]he circumstances of this case appear to exemplify what can be described as a flaw in our system of justice”

Curry v. Yachera — civil rights — affirmance– Chagares

The quote that forms the title of this post comes from the introduction of today’s notable opinion upholding the dismissal of a civil rights complaint.

The court summarizes the facts underlying the suit like this (appendix cites and footnotes omitted):

In the fall of 2012, Curry read a newspaper article that stated there was an outstanding warrant for his arrest, related to a theft at a Wal-Mart store in Lower Macungie Township, Pennsylvania. Wal-Mart security employee Kerrie Fitcher identified Curry. Curry insists that he had never been in that Wal-Mart store. Curry called the Wal-Mart store and spoke to a security employee, John Doe, who refused to review the store surveillance video. Curry then called the Pennsylvania State Police and spoke to Trooper Brianne Yachera. Yachera informed Curry that he was going to jail and that the courts would “figure it out.”

On October 29, 2012, Curry was arrested and charged with (1) theft by deception and (2) conspiracy. Unable to afford bail, Curry was jailed. On November 14, 2012, while Curry was still in jail, he was charged with “theft by deception – false imprisonment” by Exeter Township Police Detective Richard McClure. This charge was separate and apparently unrelated to the charges brought by Yachera. Two months later, McClure met Curry in prison, admitted Curry was innocent of the November 14 charges, apologized, and said he would do whatever he could to help. In or about February 2013, McClure’s charges against Curry were dropped, but he remained in jail on the charges brought by Yachera. Curry was told he would need to wait until September 2013 for the case to proceed. During his imprisonment, Curry missed the birth of his child and lost his job. Curry feared losing his home and motor vehicle. He decided to plead nolo contendere to the remaining charges, theft by deception and conspiracy. Following his plea, he was released and returned home.

The court’s analysis begins with this remarkable passage (footnotes omitted):

The broader context of this matter is disturbing, as it shines a light on what has become a threat to equal justice under the law. That is, the problem of individuals posing little flight or public safety risk, who are detained in jail because they cannot afford the bail set for criminal charges that are often minor in nature. One recent report concluded that “[m]oney, or the lack thereof, is now the most important factor in determining whether someone is held in jail pretrial” and that “the majority of defendants cannot raise the money quickly or, in some cases, at all.” By way of example, in New York City in 2013, fifty-four percent of those jailed until their cases were resolved “remained in jail because they could not afford bail of $2,500 or less.” It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail. Further, those unable to pay who remain in jail may not have the “luxury” of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.

“Curry’s inability to post bail,” the court observed, “deprived him not only of his freedom, but also of his ability to seek redress for the potentially unconstitutional prosecution that landed him in jail in the first place.” The court denied the malicious prosecution claim because his conviction stood. The court did rule that his malicious prosecution claims should have been dismissed without prejudice because his claim will not accrue unless and until his conviction is reversed.

Joining Chagares were Fuentes and Greenberg. The case was decided without oral argument.


Auto-Owners Insurance Co. v. Stevens & Ricci — insurance — affirmance — Jordan

A divided Third Circuit panel affirmed a district court ruling in favor of the insurance company in a coverage dispute.

Joining Jordan was Hardiman; Greenaway dissented, arguing that the majority misapplied a rule against aggregation. Arguing counsel were David Oppenheim from Illinois for the appellant and Timothy Tobin from Minnesota for the appellee.


Court grants oral argument in forced-decryption appeal [updated]

Orin Kerr posted here today at Volokh Conspiracy that a Third Circuit panel of Judges Jordan, Vanaskie, and Nygaard will hear oral argument September 7 in an appeal involving Fifth Amendment self-incrimination limits on ordering a criminal suspect to decrypt his computer hard drives.

Back in June, Kerr had this thorough and interesting post explaining the core legal issue and expressing his hope that the Third Circuit rejects the Eleventh Circuit’s Fifth Amendment “foregone conclusion” analysis.

Update: here is news coverage of the oral argument by Chris Palmer in the Philadelphia Inquirer.

New opinions in three civil cases

Black v. Montgomery County — civil rights — reversal — Chagares

The Third Circuit today reversed a district court’s grant of summary judgment in favor of defendants in a remarkable civil rights suit, holding that the plaintiff was seized for purposes of her Fourth Amendment malicious-prosecution claim and that she stated a valid due process claim for fabricated evidence even though she was acquitted at trial. The case arose from what the plaintiff alleged was a badly bungled fire investigation and prosecution; the accused was found not guilty of arson after the jury deliberated less than 40 minutes.

Joining Chagares were Krause and Scirica. Arguing counsel for the appellant was Michael Schwartz of James, Schwartz & Associates; for the appellees, Carol Vanderwoude of Marshall Dennehey, Philip Newcomer of the Montgomery County Solicitor’s Office, and Claudia Tesoro of the Office of the Attorney General.


DePolo v. Board of Supervisors — civil — dismissal of appeal — McKee

The Third Circuit held that a ham radio operator’s federal suit challenging denial of permission to build a 180-foot radio tower (!) was precluded by his failure to appeal a prior adverse ruling by a township zoning appeals board.

Joining McKee were Ambro and Scirica. Arguing counsel were Fred Hopengarten of Massachusetts (whose solo telecom practice focuses on antenna and tower issues and whose website includes an image of his Third Circuit bar admission certificate) for the appellant, and Maureen McBride of Lamb McErlane and John Larkin of Gawthrop Greenwood for the appellees.


NY Shipping Assoc v. Waterfront Comm’n — affirmance — Nygaard

The Third Circuit upheld district court rulings upholding the NY Waterfront Commission’s power under an interstate compact to require non-discriminatory hiring policies.

Joining Nygaard were Fuentes and Roth (the case was argued on July 9, nine days before Fuentes went senior, so the panel composition comported with 3d Cir. IOP 3.1 even though all three judges were senior at the time the opinion issued). Arguing counsel for various appellants were Donato Caruso of New York and Kevin Marrinan of New York, and Peter Hughes of Ogletree Deakins; arguing counsel for appellees was Phoebe Sorial of the NY Harbor Waterfront Commission.

New opinions: a big immigration win for the government, and a little preemption circuit split

Castro v. U.S. D.H.S. — immigration — affirmance — Smith

The Third Circuit issued a blockbuster immigration ruling today, holding that (1) federal courts lack jurisdiction to review challenges to expedited removal orders, and (2) the statute depriving courts of such jurisdiction does not violate the Suspension Clause.

On the statutory issue, the court joined a majority of courts to address the issue, citing opinions from the Second, Fifth, and Ninth Circuits and rejecting opinions from the Ninth Circuit and two district courts.

On the Suspension Clause issue, the court admitted it was “very difficult.” The opinion summarized the issue thus:

Petitioners argue that the answer to the ultimate question presented on appeal – whether § 1252 violates the Suspension Clause – can be found without too much effort in the Supreme Court’s Suspension Clause jurisprudence, especially in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), and Boumediene v. Bush, 553 U.S. 723 (2008), as well as in a series of cases from what has been termed the “finality era.” The government, on the other hand, largely views these cases as inapposite, and instead focuses our attention on what has been called the “plenary power doctrine” and on the Supreme Court cases that elucidate it. The challenge we face is to discern the manner in which these seemingly disparate, and perhaps even competing, constitutional fields interact. Ultimately, and for the reasons we will explain below, we conclude that Congress may, consonant with the Constitution, deny habeas review in federal court of claims relating to an alien’s application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country.

Joining Smith were Hardiman and Shwartz. Hardiman also briefly concurred dubitante to express doubt about the opinion’s reasoning on the Suspension Clause issue. Arguing counsel were Lee Gelernt of the ACLU Immigrants Rights Project for the appellants and Erez Reuveni for the government. A large number of amici participated, represented by an impressive array of local and national counsel, and the opinion thanked amici for their valuable contributions.

Given its importance, the case is an obvious candidate for a petition for en banc rehearing, but the panel composition makes me suspect that finding a majority for rehearing will be difficult.

Update: Steve Vladeck has early commentary on the opinion in a post on his Just Security blog here. And it’s harsh commentary: “incredibly novel and misleading,” “simply nuts,” and “hopefully, a strong candidate for en banc review.”

Update2: Noah Feldman has this critical commentary (“The decision is wrong, and the U.S. Supreme Court should review it”) on Bloomberg View.

Rosenberg v. DVI Receivables XVII — civil — reversal — Ambro

Today the Third Circuit held that § 303(i) of the bankruptcy code does not preempt state-law claims predicated on the filing of an involuntary bankruptcy petition by non-debtors. The opinion creates a circuit split with the Ninth Circuit.

Joining Ambro were Jordan and Scirica. Arguing counsel were Lewis Pepperman of Stark & Stark for the appellants and Peter Levitt of Florida for the appellees.

New opinion — Third Circuit clarifies authentication of social media content

US v. Browne — criminal — affirmance — Krause

The lucid introduction to today’s opinion affirming in a criminal appeal:

The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence—a prerequisite to admissibility at trial. Appellant Tony Jefferson Browne was convicted of child pornography and sexual offenses with minors based in part on records of “chats” exchanged over Facebook and now contests his conviction on the ground that these records were not properly authenticated with evidence of his authorship. Although we disagree with the Government’s assertion that, pursuant to Rule 902(11), the contents of these communications were “self-authenticating” as business records accompanied by a certificate from the website’s records custodian, we will nonetheless affirm because the trial record reflects more than sufficient extrinsic evidence to link Browne to the chats and thereby satisfy the Government’s authentication burden under a conventional Rule 901 analysis.

The court appears to split with the Fourth Circuit over whether Facebook pages are self-authenticating, see slip op. 19 n.8. The opinion also addressed admissibility. It held that the chats were admissible as party-opponent admissions, except for one statement that should not have been admitted but the error was harmless.

Joining Krause were Fisher and Roth. Arguing counsel were Everard Potter for the government and Omodare Jupiter for the defendant.

A notable non-precedential immigration case, highlighting an “unfortunate mistake” by government counsel

In a non-precedential opinion today in Chang-Cruz v. AG, the Third Circuit ruled in favor of an Ecuadoran citizen legally in the U.S. who argued that he’s eligible for cancellation of removal because his state convictions for drug-trafficking-related acts near a school were not aggravated felonies. Judge Krause wrote the opinion, joined by Judges Ambro and Nygaard.

Any pro-petitioner immigration ruling is noteworthy, but the end of today’s opinion is particularly interesting:

In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering “what effect, if any, Descamps has on this immigration case.” J.A. 619. Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal. These were issues well outside the scope of our remand. See Pareja v. Att’y Gen., 615 F.3d 180, 197 (3d Cir. 2010). Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in “obstructionism” by opposing the Government’s remand to the IJ to consider the plea transcript. See J.A. 879. It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation. We trust that this was an unfortunate mistake that will not be repeated.


New opinion — Third Circuit rejects copyright infringer’s appeal

Leonard v. Stemtech International — civil — affirmance, mostly — Shwartz

A “stem cell photographer” sued a nutritional-supplement company for copyright infringement. He took black-and-white photographs of stem cells through electron microscopes and then colored them in, at a time when few others were able to. The company wanted to use two of his pictures in its magazine but thought his $950 licensing fee was too high, so it sent him $500 and used the images, not just in its magazine but in many other marketing materials. After a trial, the jury returned a verdict in the photographer’s favor for $1.6 million. The company appealed the denial of its new-trial motion on secondary liability and various damages and fees grounds, and Leonard appealed the denial of prejudgment interest and other points. Today the Third Circuit affirmed on all grounds except that it vacated the order denying prejudgment interest. The court found many of the company’s arguments waived for failure to object below or develop them on appeal.

The slip opinion includes the two stem-cell images at issue. The Third Circuit very rarely includes visual images in the bodies of its opinions, but I think it’s a great idea and hope the court does it more often.

Joining Shwartz were Fuentes and Restrepo. Arguing counsel were Kathleen Kushi Carter of Hollins Law for the photographer and Jan Berlage of Gohn Hankey for the company.

Rendell’s role in Third Circuit en banc cases, and another look at whether the court uses en banc rehearing ideologically

I posted here about yesterday’s blockbuster capital-habeas en banc ruling in Dennis v. Secretary. Here are a couple thoughts on what Dennis can tell us about the dynamics of the court.

Rendell’s outsized role in en banc cases

Often en banc opinion assignments in the Third Circuit are just based on panel assignments — that is, if an en banc majority member wrote a panel opinion, then that judge normally writes the en banc majority opinion. But in Dennis no judge in the en banc majority was on the original panel, because all three panel members were en banc dissenters. So Chief Judge McKee (the ranking judge in the majority and thus the majority authorship assigner) had more latitude than usual in choosing who to assign the opinion to, and he picked Rendell. I see that as the latest sign of the great esteem in which she is held by her colleagues on the court.

Judge Rendell’s pivotal role in the current court’s en banc cases goes beyond yesterday’s case. The court has decided 4 en banc cases in the past 12 months (Lewis, Langbord, NCAA, and Dennis), and Rendell wrote the majority opinion in 3 of the 4! In the fourth, she wrote the dissent. Of the court’s 22 en banc cases decided since McKee became Chief in 2010, Rendell wrote for the court five times — more than any other judge — and wrote the lead dissent 4 other times — also more than any other judge.


Outlier-panel correction, revisited

In my big en banc-analysis post in May of 2015, I wrote:

Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

Four en banc cases have been issued since I wrote that, and 3 of the 4 effectively reversed the panel outcome. More interestingly, 2 of them look like what I said is rare, en banc majorities trumping outlier panels:

  • In Lewis, a panel majority of two Republican-nominated judges (Fisher with Chagares) issued a conservative ruling* (holding a criminal-trial error harmless). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and three Republican-nominated judges dissenting.
  • In Dennis, a panel of three Republican-nominated judges (Fisher with Smith and Chagares) issued a conservative ruling (denying capital habeas relief). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and four Republican-nominated judges dissenting.

* I’m using “conservative ruling” in these two bullets as shorthand for “ruling whose outcome conservatives traditionally favor.” Same idea with “liberal.”

What happened in Lewis and Dennis bears watching, but I still doubt it’s the new normal. Consider the other two en banc cases decided in the past year:

  • Langbord split the court’s Democratic-nominated judges, with four of them in the majority and three dissenting.
  • NCAA voting broke down non-ideologically, with liberal and conservative judges all in the majority and only Fuentes and Vanaskie dissenting.

There will never be enough en banc cases to draw robust conclusions from them about the court’s dynamics. The tiny sample size makes it impossible to tell the meaningful trends from the statistical blips.

Still, for appellate nerds, it’s fun to try.

En banc court upholds habeas relief in capital case, plus two divided panels and a sentencing affirmance

Another blockbuster August day today, with a big capital-habeas en banc ruling and three panel opinions. Over 300 pages of opinion today.

Dennis v. Secretary — capital habeas corpus — affirmance — Rendell

The en banc Third Circuit today affirmed habeas corpus relief for James Dennis, holding in a landmark habeas opinion that the prosecution suppressed evidence that effectively gutted its case and that the Pa. Supreme Court unreasonably applied Brady v. Maryland when it denied relief. The 2015 panel ruling (Fisher with Smith and Chagares) had ruled for the state.

Joining Rendell were McKee, Ambro, Fuentes, Greenaway, Vanaskie, Shwartz, and Krause, and by Jordan in part. McKee concurred “to underscore the problems inherent in eyewitness testimony and the inadequacies of our standard jury instructions relating to that evidence.” Jordan concurred in part and concurred in the judgment, noting:

Every judge of our en banc Court has now concluded that the Pennsylvania Supreme Court’s contrary determination was not only wrong, but so obviously wrong that it cannot pass muster even under AEDPA’s highly-deferential standard of review. In other words, it is the unanimous view of this Court that any fairminded jurist must disagree with the Dennis I court’s assessment of the materiality and favorability of the Cason receipt. Yet somehow a majority of the Pennsylvania Supreme Court endorsed Dennis’s conviction and death sentence. The lack of analytical rigor and attention to detail in that decision on direct appeal is all the more painful to contemplate because the proof against Dennis is far from overwhelming. He may be innocent.

Fisher dissented, joined by Smith, Chagares, and Hardiman, and Hardiman also authored a dissent that Smith and Fisher joined. Arguing counsel were Amy Rohe of Reisman Karron for Dennis and Ronald Eisenberg of the Philadelphia D.A.’s office for the state.


Watson v. Rozum — prisoner civil rights — reversal in part — McKee

A divided Third Circuit panel today ruled in favor of a prisoner alleging a First Amendment retaliation claim.

Joining McKee was Ambro; Ambro also concurred, explaining the court’s rejection of caselaw from the Fifth and Eighth Circuits and its disavowal of prior non-precedential circuit rulings. Hardiman dissented. Arguing counsel were Kemal Mericli of the Pa. A.G.’s office for the state and former Fisher clerk Ellen Mossman of Dechert for the prisoner.


NAACP v. City of Philadelphia — First Amendment — affirmance — Ambro

It’s unusual enough for the same panel to issue two precedential opinions on the same day, but it’s rare indeed for the same judge to dissent in both cases. But so it was here, where Hardiman again dissented from a McKee-Ambro majority. In this case, the majority affirmed a district court ruling that Philadelphia’s policy of banning non-commercial advertising at its airport violates the First Amendment.

Arguing counsel were Craig Gottlieb for the city and Fred Magaziner of Dechert (who clerked for Rosenn) for the challengers.


US v. Carter — criminal — affirmance — Shwartz

The Third Circuit affirmed a district court criminal sentence applying a sentencing enhancement for maintaining a stash house. The defendant had argued he did not maintain the stash house because he did not own or rent the house and did not pay for its operation from his own funds.

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

New opinions — habeas corpus relief and three affirmances

OFI Asset Management v. Cooper Tire — civil — affirmance — Jordan

In a 51-page opinion, the Third Circuit today rejected an appellant’s challenge to the district court’s management of a complex securities-fraud class action. The court criticized the clarity appellant’s underlying complaint, then wryly observed:

Now that OFI [the plaintiff-appellant] has come to us with the same kind of broad averments that drove the District Court to demand specificity, we find ourselves more than sympathetic to that Court’s position.

The court also rejected a long list of intensely factbound substantive arguments.

Joining Jordan were Ambro and Scirica. Arguing counsel were James Harrod of Bernstein Litowitz for the appellants and Geoffrey Ritts of Jones Day for the appellees.


Goldman v. Citigroup Global — civil — affirmance — Jordan

The Third Circuit affirmed dismissal of a securities suit for lack of subject-matter jurisdiction, rejecting the plaintiffs’ arguments under Grable & Sons v. Darue Engineering that the court had jurisdiction despite the absence of a federal cause of action. The court refused to be bound by language in a prior precedential opinion such “a summary and unexplained jurisdictional ruling” where jurisdiction was not in dispute has no precedential effect. The court also rejected the appellants’ argument that an arbitration panel’s manifest disregard for the law created a federal-question jurisdictional hook.

Joining Jordan were McKee and Roth. Arguing counsel were Richard Gerace for the appellants and Brian Feeney of Greenberg Traurig for the appellees.


Dempsey v. Bucknell University — civil rights — affirmance — Krause

College student Reed Dempsey was arrested after another student accused him of assaulting her. The affidavit of probable cause accompanying the criminal complaint “recklessly omitted” certain facts. After the charges were later dropped, Dempsey brought a civil rights suit alleging that the arrest violated his Fourth Amendment rights.

Today, the Third Circuit affirmed summary judgment against Dempsey because, even considering the omitted facts, a reasonable jury could not find lack of probable cause to arrest. The court rejected Dempsey’s argument that, in analyzing a probable cause issue at summary judgment, a court must ignore unfavorable disputed facts. It held that, “when a court determines that information was asserted or omitted in an affidavit of probable cause with at least reckless disregard for the truth, it must perform a word-by-word reconstruction of the affidavit.” It ruled that information was recklessly omitted, reconstructed the affidavit to include it, and held that the any reasonable juror would find that the reconstructed affidavit established probable cause.

Joining Krause were Vanaskie and Shwartz. Arguing counsel were Dennis Boyle (formerly) of Fox Rothschild for Dempsey and James Keller of Saul Ewing for the defendants.


Brown v. Superintendent SCI Greene — habeas corpus — reversal — Ambro

The introduction of today’s opinion granting habeas corpus relief:

This case has a familiar cast of characters: two co-defendants, a confession, and a jury. And, for the most part, it follows a conventional storyline. In the opening chapter, one of the defendants (Miguel Garcia) in a murder case gives a confession to the police that, in addition to being self-incriminating, says that the other defendant (Antonio Lambert1) pulled the trigger. When Lambert and Garcia are jointly tried in Pennsylvania state court, the latter declines to testify, thereby depriving the former of the ability to cross-examine him about the confession. The judge therefore redacts the confession in an effort to comply with Bruton v. United States, 391 U.S. 123 (1968). As a result, when the jury hears Garcia’s confession, Lambert’s name is replaced with terms like “the other guy.” The idea is that the inability to cross-examine Garcia is harmless if the jury has no reason to think that the confession implicates Lambert.

During closing arguments, however, there is a twist when the prosecutor unmasks Lambert and reveals to the jurors that he has been, all along, “the other guy.” Now, instead of a conclusion, we have a sequel. Based on a Sixth Amendment violation caused by the closing arguments, we conclude that Lambert is entitled to relief. We therefore remand so that the District Court can give Pennsylvania (the “Commonwealth”) the option either to retry or release him.

In holding that the Bruton error was not harmless, the court noted that the prosecution’s key witness had flaws and rejected the state’s argument that error was harmless because the jury already knew about these other flaws and believed the witness anyway.

Joining Ambro were Krause and Nygaard. Arguing counsel were Ariana Freeman of the EDPA Federal Community Defender for Brown and Susan Affronti of the Philadelphia DA for the state.

New opinions — a rare plain-error reversal of a criminal sentence, and an expansion of disabilities-suit exhaustion

US v. Dahl — criminal — reversal — Scirica

The Third Circuit today held that it was plain error for the district court to sentence a criminal defendant as a sex-offender recidivist under USSG § 4B1.5. The district court had focused on the actual conduct underlying the defendant’s prior convictions in deciding whether his prior crimes qualified as sex offense convictions, but the Third Circuit held that courts are required instead to apply the categorical approach, focusing on whether the elements of the prior crime necessarily qualify, just as in the armed-career-criminal-enhancement context.

The court disavowed dicta from its 2012 ruling in Pavulak purporting to apply a modified-categorical approach. It reversed under plain error, even though it was undisputed that this defendant’s prior acts would have qualified as sex offenses, stating, “We generally exercise our discretion to recognize a plain error in the misapplication of the Sentencing Guidelines.”

Joining Scirica were Chagares and Krause. Arguing counsel were Brett Sweitzer of the Federal Community Defender in Philadelphia for the defendant and Bernadette McKeon for the government.


S.D. v. Haddon Heights Bd. of Educ. — civil / education / disability — affirmance — Greenaway

The Individuals with Disabilities Education Act is one of many constitutional or statutory protections against disability-related discrimination. The IDEA requires plaintiffs to administratively exhaust their claims before they can file suit. In its 2014 ruling in Batchelor, the Third Circuit held that the IDEA exhaustion requirement applies to claims that are raised under other statutes but which arise from rights explicitly protected by the IDEA. Today, the court extended Batchelor “narrow[ly]” to hold that IDEA’s exhaustion requirement also applies to non-IDEA claims that are “educational in nature and implicate services within the purview of the IDEA,” even when they “do not . . . arise from their enforcement of rights explicitly under the IDEA.”

Joining Greenaway were Jordan and Hardiman. Arguing counsel were Sarah Zuba of Reisman Carolla for the appellants and William Donio of Cooper Levenson for the appellee.

Three new opinions — antitrust, criminal sentencing, and prisoner civil rights

It’s mid-August, so clerkships are ending and opinions are issuing thick and fast. Three more today, including a significant prisoner-rights opinion.

Deborah Heart & Lung Ctr. v. Virtua Health — civil / antitrust — affirmance — Roth

A dispute between two health care providers over patient referrals led one of them to bring an antitrust suit against the other. The district court ruled for the defendant, and today the Third Circuit affirmed. The opinion begins, “In antitrust suits, definitions matter,” and the court found that the plaintiff failed to meet its own undisputed definitions of the relevant products and markets. The court stated that it wrote in order to clarify the plaintiff’s burden under Section 1 of the Sherman Act when the plaintiff doesn’t allege that the defendants have market power: such plaintiffs must show anti-competitive effects on the market as a whole.

Joining Roth were Fuentes and Krause. Arguing counsel were Anthony Argiropoulos of Epstein Becker for the appellant and Philip Lebowitz of Duane Morris for the appellees.

US v. Jones — criminal — affirmance — Hardiman

When defendants commit a crime while they are on supervised release, they get a new, revocation sentence, and the length of that sentence depends on the seriousness of the original offense. But what if the seriousness of the offense has changed between the time of the original conviction and the time of the revocation sentencing?

Jermaine Jones was sentenced back in 2000 as an armed career criminal. Since that time, the Supreme Court decided cases that Jones says would make him ineligible to be sentenced as an armed career criminal today. So when Jones violated the terms of his supervised release and faced revocation sentencing, the sentencing court had to decide how to calculate his revocation sentence now–as a career criminal or not? Jones argued that he should be sentenced today based on how his original offense would be classified today; it would be unconstitutional to sentence him as an armed career criminal now, so it would be wrong to classify him now as an armed career criminal when imposing a revocation sentence. The government argued he should be sentenced today based on how his offense was classified at the time.

Today, the Third Circuit agreed with the government and affirmed, holding that it was correct to classify Jones as an armed career criminal for purposes of calculating his revocation sentence.

Hardiman was joined by Smith (Sloviter also had been on the panel before she assumed inactive status). The case was decided without oral argument.


Parkell v. Danberg — prisoner civil rights — reversal in part — Chagares

A Delaware inmate fell and seriously injured his elbow. In the suit he eventually filed, he alleged a disturbing year-long ordeal of mistreatment and neglect by prison guards and health-care staff. He also alleged that his Fourth Amendment rights were violated by three-times-daily visual body cavity searches even though he had no contact with anyone. The district court granted summary judgment for the defendants.

Today in a 38-page opinion the Third Circuit reversed summary judgment on the Fourth Amendment cavity-searches claim, holding that the Fourth Amendment gives inmates a “very narrow” right to bodily privacy and that the prisoner here may be able entitled to prospective injunctive relief. The court affirmed summary judgment on his Eighth Amendment conditions-of-confinement and deliberate-indifference claims, as well as his effort to recover money damages on his Fourth Amendment claim, essentially because the pro se inmate had failed to marshal enough proof about who was actually responsible.

Joining Chagares were Fisher and Cowen. Arguing counsel for the inmate were Suzanne Bradley and former Barry clerk Brendan Walsh of Pashman Stein, who the court thanked for the quality of their pro bono representation. Counsel for the defendants were Devera Scott of the Delaware AG’s office and Chad Toms and Daniel Griffith of Whiteford Taylor.

New opinion — Third Circuit affirms denial of class certification in suit alleging that Widener law school advertised misleading graduate-employment stats

Harnish v. Widener Univ. School of Law — civil / class action — affirmance — Chagares

Six recent graduates of Widener University School of Law filed a class action against the law school, alleging:

Between 2005 and 2011, Widener reported that 90-97% of its students were employed after graduation. These numbers were widely and deliberately advertised in print and online publications, along with oral presentations, targeting prospective students. But in reality, only 50-70% of Widener graduates ended up in full-time legal positions, which Widener knew.

They alleged that these misleading employment statistics let Widener charge higher tuition. The district court denied class certification, finding that common questions did not predominate and that the named plaintiffs’ claims were not typical of the proposed class, and the plaintiffs filed for interlocutory review.

Today, the Third Circuit affirmed. The court rejected the plaintiffs’ argument that the district court’s predominance review was too demanding, stating that a court’s pre-certification predominance analysis must be rigorous and must consider the merits to the extent of predicting whether the class-wide evidence on the predominant issues will be sufficient to win. The court ruled that the plaintiffs failed predominance because their damages theory was non-cognizable under applicable state law. Although the court agreed with the plaintiffs that the district court mistakenly focused on the fact that graduates got fulltime legal jobs, it found the error harmless.

Joining Chagares were Krause and Barry. Arguing counsel were David Stone of Stone & Magnanini for the plaintiffs and Thomas Quinn of Wilson Elser for the law school.



New opinions — Cosby unsealing appeal dismissed as moot, plus a civil rights attorney-fees reversal

Constand v. Cosby — civil / justiciability — dismissal — Ambro

Sometimes I can’t summarize a case more clearly than the opinion does itself. The problem occurs frequently with Ambro opinions. To wit:

William H. Cosby, Jr., appeals the District Court’s order unsealing certain documents that reveal damaging admissions he made in a 2005 deposition regarding his sexual behavior. There was no stay of that order, and the contents of the documents received immediate and wide publicity. While the parties dispute whether the District Court properly balanced the public and private interests at stake in unsealing the documents, we must decide at the outset whether Cosby’s appeal has become moot due to the public disclosure of their contents. The Associated Press (the “AP”) argues in favor of mootness because resealing the documents after they have already become public will have no effect. Cosby claims this is not the case for two primary reasons, as resealing the documents would (1) at least slow the dissemination of their contents and (2) might affect whether they can be used against him in other litigation. For the reasons that follow, we conclude that the appeal is moot.

Interestingly, the opinion relies in part on the results of a Google search performed the Friday before the opinion issued, including what looks to me like the first-ever circuit citation to Deadspin.

The court in a footnote expressed “serious reservations” about the district court’s reasoning that unsealing the documents was supported by Cosby’s image as a “public moralist,” a phrase the court described as “vague and undefined” and having “no basis in our jurisprudence.”

Joining Ambro were Smith and Krause. Arguing counsel were George Gowen III of Cozen O’Connor for Cosby and Gayle Sproul of Levine Sullivan for AP.


Raab v. Ocean City — civil / attorney’s fees — reverse in part — Chagares

A two-judge Third Circuit panel today held that a settling civil-rights plaintiff can be a prevailing party eligible to recover attorney’s fees where the district court dismissed the suit sua sponte in an order incorporating and retaining jurisdiction over the private settlement, even though the district court entered no consent decree and apparently did not review the settlement before entering its order.

Joining Chagares was Restrepo; Van Antwerpen was on the panel when the case was orally argued but died before the opinion issued. Arguing counsel were Paul Rizzo of DiFrancesco Bateman for the plaintiff, A. Michael Barker of Barker Gelfand for one defendant, and Thomas Reynolds of Reynolds & Horn for another defendant.

New opinion — Third Circuit affirms a white-collar conviction and sentence in Judge Restrepo’s first published opinion

US v. Miller — criminal — affirmance — Restrepo

The Third Circuit on Friday affirmed in a white-collar criminal appeal, holding that the district court correctly applied the ‘investment adviser’ offense-level enhancement to an unregistered investment adviser. The court also found no plain error where the government promised to recommend a lower offense level and then repeatedly requested that level but also stated when pressured by the sentencing judge that a higher level would be reasonable. Finally, the court rejected the defendant’s challenge to the substantive reasonableness of his 120-month sentence. The opinion, Judge Restrepo’s first published opinion as a Third Circuit judge, is a model of directness and clarity.

Joining Restrepo were Fuentes and Chagares. The case was decided without oral argument.

“The Third Circuit’s Supreme Court Scorecard”

Donald Scarinci of Scarinci Hollenback in New Jersey yesterday posted this column, whose title is the title of this post, on Scarinci concludes that the Third Circuit’s high-court results this past term were “average” for its own three cases and “weren’t stellar” for other circuit-split cases in which the Third Circuit had taken a side.

New opinion — Third Circuit affirms denial of ineffective-assistance claim where trial counsel raised the issue only in a footnote

Nguyen v. Attorney General — habeas corpus — affirmance — Greenberg

The Third Circuit today affirmed the denial of habeas corpus relief in a case where the prisoner argued his trial counsel was ineffective for raising a speedy-trial issue only in a letter-brief footnote. The court noted its intimate familiarity with the (New Jersey) state court’s procedures and its certainty that those courts would view the footnote as sufficient to preserve the legal issue, and accordingly it held that counsel’s performance was not deficient. The court also rejected the prisoner’s strained argument that the state courts had found as fact that counsel had not raised the speedy-trial issue.

The opinion’s holding and its core reasoning both seem sound, but I wonder about some of the language. The opinion says at pages 3 and 20 that it reviewed the ineffective-assistance claim through a “doubly deferential” lens. In habeas cases, this double deference refers to the interplay of (1) the Strickland ineffective-assistance standard with (2) the 28 USC 2254(d) limitation on relief for claims adjudicated on the merits in state court. But here the state court denied the claim on prejudice grounds only (see op. p. 22, which states “District Court took no position” but presumably means ‘state court took no position,’ compare p.15), while the Third Circuit denied relief on deficient-performance grounds only, so the 2254(d) limitation on relief did not apply. So the “doubly deferential” language seems out of place here and I hope it does not create confusion in future cases.

Joining Greenberg were Ambro and Jordan; Ambro also concurred separately. Arguing counsel were Jonathan Edelstein of Edelstein & Grossman for the prisoner and James McConnell for the state.

Three new opinions, featuring two judges writing separately on substantial standing and waiver issues

Freedom From Religion Foundation v. New Kensington Arnold S.D. — civil / First Amendment —  reversal in part — Shwartz

For the past 60 years, a public high school in Pennsylvania has a had a granite monument on school grounds inscribed with the Ten Commandments. A student, a parent, and a group dedicated to the separation of church and state sued the school, alleging that the monument violated the Establishment Clause, but the district court dismissed the suit on standing and mootness grounds. Today, the Third Circuit reversed in part, holding that the parent had standing because she had direct contact with the monument and remanding to determine whether the parent was a member of the group.

Joining Shwartz were Smith and Hardiman; Smith concurred dubitante in a lengthy opinion explaining his doubt that a claim for nominal damages should suffice to confer standing or overcome mootness.

Arguing counsel were Marcus Schneider of Steele Schneider for the appellants, Anthony Sanchez for the school district, and Mayer Brown associate Charles Woodworth for amicus.


NLRB v. Fedex Freight — labor — petition denied — Scirica

A group of Fedex Freight drivers voted to unionize but Fedex refused to bargain with them, arguing that another group of employees had to be included, too. The NLRB ruled against Fedex and Fedex filed a petition for review. Today, a divided Third Circuit panel denied the petition for review. Apart from the merits issues, the majority and concurring opinions feature an important back-and-forth about when cursory presentation of an argument in district court will result in waiver on appeal.

Joining Scirica was Ambro; Jordan concurred in part and concurred in the judgment, explaining his view that Fedex waived one of its central arguments below by making it only in passing in a footnote. Arguing counsel were Milakshmi Rajapakse for the NLRB and Ivan Rich Jr. for Fedex.


US v. Stevenson — criminal — affirmance — Hardiman

The Third Circuit today affirmed a criminal defendant’s conviction and sentence, rejecting a series of challenges including his argument that the dismissal of the charges against him for a speedy-trial violation should have been with prejudice, not without. The court also held that indictment defects are subject to harmless error analysis, overruling its own prior precedent based on intervening Supreme Court precedent and splitting with the Ninth Circuit.

Joining Hardiman were Smith and Shwartz. The case was decided without argument.

New Jersey clobbered in sports-betting en banc

NCAA v. Governor — civil — affirmance — Rendell — en banc

The en banc Third Circuit today rejected New Jersey’s effort to legalize sports betting, holding that the effort violated the Professional and Amateur Sports Protection Act and that PASPA did not violate constitutional anti-commandeering principles. The en banc ruling came out the same way as the earlier panel ruling.

A couple quick observations.

First, New Jersey got pasted. They came into en banc rehearing with reason to be fairly confident about two votes (Fuentes and Vanaskie, the dissenters from Christie I and the Christie II panel), so they needed to pick up another 5 votes for an en banc majority. They picked up zero. Their position was built around business and federalism, but they failed to pick up a single Republican-nominated judge. For New Jersey and for state-sports-gambling advocates, today’s outcome was a disaster.

Second, there was some speculation last month by prominent legal experts (here and here) that the court’s slowness in issuing the opinion gave reason to think New Jersey would win. That speculation proved badly off the mark.

New Jersey reportedly will to petition for Supreme Court review, but one supporter admits it’s a “long shot.” Indeed.

New opinion — Third Circuit rejects challenge to gas pipeline permits

Delaware Riverkeeper Network v. Secretary — environmental — petition denial — Roth

The Third Circuit today rejected environmentalist petitioners’ challenges to permits for interstate natural gas pipelines in New Jersey and Pennsylvania. The court also rejected various justiciability and sovereign immunity arguments raised by the respondents.

Joining Roth were Greenaway and Scirica. Arguing counsel were Aaron Stemplewicz of the Delaware Riverkeeper Network and Edward Lloyd of Columbia Law School for the environmentalist petitioners, Joseph Cigan III and Lewin Weyl for the state agency respondents, and John Stoviak of Saul Ewing and Christine Roy of Rutter & Roy for the industry respondents.

New opinion — a remarkable career-offender-sentencing opinion

US v. Rengifo — criminal — affirmance — Roth

The Third Circuit on Friday embraced an exceptionally aggressive interpretation of the career-offender sentencing provision, affirming a defendant’s career-offender sentence without oral argument.

Under the US Sentencing Guidelines, a defendant can be sentenced as a career offender only if he has two qualifying prior convictions. One way a conviction can qualify — the way at issue in this case — is if it resulted in a “sentence of imprisonment exceeding one year and one month.”

One of Hector Rengifo’s two prior convictions was possession with intent to distribute marijuana. The sentence he received for this state conviction was “time served to 12 months.” Since 12 months plainly does not exceed one year and one month, the prior conviction doesn’t qualify and Rengifo isn’t a career offender, right? Wrong.

It turns out that Rengifo was released on parole after serving 71 days of the time-served-to-12-months sentence. Then his parole was revoked, he (as the opinion awkwardly puts it) “was sentenced to the remaining 294 days of the original sentence,” and he served another 120 days. He was released on parole again, revoked again, and “sentenced to the remaining 174 days of his sentence.” In the end he served his full original sentence, and nothing more. By “nothing more,” I’m referring to the fact that, in some jurisdictions, defendants who violate parole get additional time tacked onto their sentences for the parole-violating acts — revocation sentences, not just revocations. That’s not what happened here: Rengifo served 365 days. So, still not a sentence “exceeding one year and one month,” right? Wrong.

The government argued that, for career-offender-calculation purposes, Rengifo’s sentence was 365 days (the original max sentence) plus 294 days (the time he served after being released on parole the first time). The court rejected this argument — instead adopting a career-offender-calculation methodology it described as “harsher”:

[T]he correct total of Rengifo’s sentence of imprisonment is 833 days, which consists of the maximum imposed original sentence of 365 days, plus the maximum imposed sentence for the first revocation of 294 days, and plus the maximum imposed sentence for the second revocation of 174 days.

Holy cow!

The court rejected Rengifo’s due-process argument that this triple counting was double counting, and it rejected his rule-of-lenity argument because it found the career-offender guideline and application notes unambiguous. It relied mainly on USSG 4A1.2k n. 11, which says, “[i]f the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned.”  I don’t see how it’s not at least ambiguous whether “sentence imposed upon revocation” means a new sentence added to the underlying sentence for the parole-violating acts.

Joining Roth were Fuentes and Krause. The case was decided without oral argument.

Still more on Javier — rehearing and publication timing

I posted yesterday about Javier v. AG, explaining my view that the opinion hadn’t addressed a key question, and that the answer to that question might cast doubt on the holding. Any time I express doubts about a panel opinion, I’m interested to see how things play out as far as rehearing  — will it be sought, will the rehearing petition raise arguments along similar lines as my post, how will the court rule?

But, in this case, the court already denied rehearing. Recall that Javier originally was issued back in June as non-precedential. Javier filed for panel and en banc rehearing, two days after the government filed to publish the opinion. The court denied panel and en banc rehearing on July 7, almost a month before the panel re-issued the opinion as precedential.

Which raises a question interesting to appellate procedure nerds — did the non-panel judges who voted to deny rehearing en banc know at the time they voted that the opinion would be precedential? Should it matter? Do judges casting en banc votes scrutinize precedential opinions more closely? I think they should, and I bet many do.

Now, I don’t know what internal procedures the Third Circuit follows when petitions for rehearing and motions to publish are both pending, and I’m not suggesting that anyone did anything wrong here.

But in my view the better practice would be for a panel to rule on the motion to publish and issue the precedential panel opinion before the court votes on the en banc rehearing petition. (I recognize this might require some tweaking of IOP 9.5.) En banc rehearing votes should be — and should appear to be — fully informed and free of any potential for manipulation by the panel.

New opinion — can the government deport you for threatening to slap someone? [updated]

Javier v. AG — immigration — deny and dismiss — Greenaway

At the government’s request, the Third Circuit today issued as precedential an opinion it previously had issued as non-precedential,  holding that a conviction under Pennsylvania’s terroristic-threats statute (18 Pa Cons. Stat. 2706(a)(1)) categorically qualifies as a crime involving moral turpitude to support removal. The statute makes it a crime to “communicate[], either directly or indirectly, a threat to: [] commit any crime of violence with intent to terrorize another.” The court rejected the petitioner’s argument that, because “any crime of violence” includes simple assault and because simple assault is not turpitudinous, therefore the statute included non-turpitudinous conduct. The court reasoned that the turpitude derives from the intent to terrorize. The opinion disagreed with a 2010 non-precedential opinion, Larios v. AG, 402 F. App’x 705 (3d Cir. 2010) (Jordan, joined by Fuentes and Aldisert).

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument.


The title of my original post about today’s opinion in Javier was, “can the government deport you for threatening to slap someone?”

The court’s answer to that question is that, yes, you can be deported for threatening to slap someone, even though you can’t be deported for actually slapping someone, because an element of a conviction for threats is intent to terrorize.

But the Javier opinion’s reasoning contains a serious gap, in my view: does “intent to terrorize” require anything more, under Pennsylvania law, than ‘intent to make the person think you actually will assault them’? Because, if it doesn’t, then I see no sense in saying assaults aren’t categorically turpitudinous but mere threats to assault are. After all, we’d all agree that hitting someone is worse than making them afraid that you’re going to hit them, no?

I’m not an expert on Pennsylvania criminal law, so I don’t know if “intent to terrorize” requires more than the fear that would result from any believed threat of assault, but the opinion’s failure to discuss the point is concerning.

New opinions — an en banc ruling in the Double Eagle gold coins case, plus an immigration case

Langbord v. US Dept. of the Treasury — civil — affirmance — Hardiman

The en banc Third Circuit ruled that the government was allowed to keep 10 extremely rare and valuable Double Eagle gold coins it seized from the family that had handed them over for authentication. Previously a divided panel (Rendell and McKee with Sloviter dissenting) had ruled for the family. It’s an unusual en banc case in that covers a dizzying list of appellate issues, many of them fact-bound.

The court split 8+1 to 3. Joining Hardiman were Ambro, Fuentes, Smith, Fisher, Chagares, Vanaskie, and Shwartz. Jordan concurred in part and concurred in the judgment, describing the Mint’s strategy of claiming the coins without judicial authorization as “a bad idea.” Rendell with McKee and Krause dissented, criticizing the majority’s reasoning as “at best cryptic and, at worst, sets an incorrect and dangerous precedent that would allow the Government to nullify CAFRA’s provisions at will.”

Arguing counsel were Barry Berke for the family and Robert Zauzmer for the government.

An interesting and odd case.


Sunday v. AG — immigration — petition denied — Chagares

The Third Circuit held that the Immigration and Nationality Act does not grant the Attorney General authority to grant a waiver of inadmissibility, and it held that removal cannot be unconstitutionally disproportionate punishment because it is not punishment.

Joining Chagares were Fisher and Barry. Arguing counsel were Keith Whitson of Schnader Harrison in Pittsburgh for the petitioner and Andrew Oliveira for the government.

New opinion — Senator Menendez’s alleged actions not protected from prosecution

US v. Menendez — criminal — affirmance — Ambro

The Third Circuit rejected U.S. Senator Robert Menendez’s appeal from the denial of his motion to dismiss the indictment against him. Menendez (D-NJ) is charged with accepting gifts from a Florida doctor whom his office assisted in various ways. Because the charged acts were “essentially lobbying on behalf of a particular party,” the court rejected his argument that his actions are protected from prosecution by the Speech or Debate Clause, but the court also rejected the government’s position that the clause does not extend to legislative attempts to influence executive actions.

Joining Ambro were Jordan and Scirica. Arguing counsel were Abbe Lowell of Chadbourne & Parke for the Senator and Peter Koski for the government.

UPDATE: AP reports on 9/13 that the Court denied en banc rehearing.

New opinion — prison’s failure to timely respond to an inmate’s grievance opens door to the inmate’s federal suit

Robinson v. Superintendent — prisoner civil rights — reversal — Hardiman

A unanimous Third Circuit panel today held that a  Pennsylvania prison’s repeated failure to respond to an inmate’s grievance rendered its administrative remedies “unavailable” under the Prison Litigation Reform Act, reversing the district court and allowing the inmate’s civil-rights suit to proceed. The court explained:

The District Court concluded that SCI Rockview’s * * * response to Robinson—which was provided more than four months late and six weeks after Robinson filed suit, and did not even address the correct incident— rendered the prison’s administrative remedies “available” to him under the PLRA. We disagree.

The opinion had some pointed words for the prison:

If prisons ignore grievances or fail to fully investigate allegations of abuse, prisoners will feel disrespected and come to believe that internal grievance procedures are ineffective. If prisoners do not believe they will get a response from prison administration, they will be more likely either to bypass internal procedures entirely and file a complaint in federal court or use a federal lawsuit to prod prison officials into a response, thus taxing the judicial resources that Congress meant to conserve by passing the PLRA. Accordingly, we hope that the events that transpired in this case are not reflective of the way in which SCI Rockview responds to inmate grievances generally.

Joining Hardiman were Jordan and Greenaway. Arguing counsel for the prisoner was John Jacobus of Steptoe & Johnson (a Barry district court clerk) and Howard Hopkirk of the state AG’s office for the prison. The opinion thanked the Steptoe lawyers for handling the appeal pro bono.

New opinion — divided Third Circuit panel vacates career-offender criminal sentence under plain-error review

US v. Calabretta — criminal — reversal — Chagares

The Third Circuit reversed a criminal sentence under plain error review yesterday, holding that Johnson v. United States invalidates the residual clause of USSG 4B1.2 and that sentencing the defendant as a career offender was plain error.

Joining Chagares was Jordan. Fisher dissented, “specifically to address the erosion of the doctrine of plain error review in our Circuit.” Arguing counsel were John Meringolo of New York for the defendant and Steven Sanders for the government.

After panel rehearing, Third Circuit reverses course in non-precedential media case

Earlier this week the Third Circuit issued a non-precedential opinion in Cheney v. Daily News, reviving a firefighter’s defamation and invasion-of-privacy claims against a newspaper that used his photo, naming him in the caption, to accompany a news story about a fire department sex scandal he had nothing to do with. The same panel had issued an opinion coming out the other way back in February, then granted panel rehearing and heard oral argument.

I don’t have an intelligent view about the merits here, but I do applaud the panel’s willingness to reverse course. I’m a firm believer in panel rehearing. Modern appellate judges simply don’t have the luxury of agonizing forever over each case. Panel rehearing plays a valuable role in helping courts decide cases efficiently and accurately, but fulfilling that role requires judges confident enough to admit their rare mistakes.

As Justice Felix Frankfurter wrote, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

New opinions — it isn’t unreasonable for judges to run new federal sentences consecutive to existing unconstitutional state sentences

US v. Napolitan — criminal — affirmance — Krause

Sometimes a judge imposes a criminal sentence on a defendants who is already serving another criminal sentence. When that happens, the judge has to decide whether the new sentence starts running now (“concurrent”), or whether instead the new sentence doesn’t start running until the defendant’s current sentence is over (“consecutive”).

The difference between concurrent and consecutive may sound like small potatoes, and some judges may treat it that way, but in practice the choice can have a huge impact on how long a defendant has to serve.

Imagine a defendant whose first sentence is 10 years in state prison. After she has served half that sentence, she gets a federal conviction and a new 5-year sentence. If the new sentence is consecutive, her total time in prison is 15 years; if concurrent, she serves 10 years. If that’s you or your parent or your child, that’s a huge sentencing difference.

Now, let’s change the above hypothetical. Suppose that, at the time of the new sentencing, everyone in the courtroom agrees that the first sentence was illegal. Instead of the 10 years she got, the sentence should have been only 5 years. But it’s too late now for her to challenge the unconstitutional first sentence.

In a case like the second hypothetical, is it unreasonable for a judge to make the second sentence consecutive? Today, the Third Circuit held that it is not, affirming a defendant’s consecutive sentence. The court found the outcome largely dictated by the 1994 Supreme Court ruling in Custis v. United States, which held that federal defendants generally cannot collaterally attack prior state sentences used to enhance their later federal sentences.

The opinion’s legal reasoning looks perfectly sound to me. But I wish the court had included some language reminding district courts that, while they’re more or less free to run new sentences consecutive to unconstitutional existing sentences, that doesn’t make it a fantastic idea.

Joining Krause were Fuentes (the court’s newest senior judge!) and Roth. The caption does not indicate whether there was oral argument; the defendant was represented by AFDs Akin Adepoju and Renee Pietropaulo of the WDPA defenders, the goverment by Donovan Cocas and Rebecca Haywood.

New opinion — Third Circuit reaffirms the “picking off” exception to mootness

Richardson v. Director Federal BOP — inmate civil rights / class action — reversal — Smith

Class-action plaintiffs won a major victory in the Third Circuit today, as the court reaffirmed a rule that makes it harder for defendants to moot impending class-action suits by picking off the plaintiffs before they can seek class certification.

First, the facts. An inmate at USP Lewisburg housed in that prison’s “Special Management Unit” alleged that the prison had an unwritten policy of increasing inmate-on-inmate violence by housing hostile SMU inmates together and painfully restraining inmates who refused a hostile cellmate. Specifically (record cites omitted):

In support of this claim, Richardson [the inmate plaintiff] explains how—after seven months of living with a compatible cellmate—corrections staff asked him to “cuff up” on the cell door so that a new inmate could be transferred into his cell. Richardson alleges that this inmate, known among the prison population as “the Prophet,” had attacked over twenty former cellmates.  Richardson refused to “cuff up” because he did not want to be placed with “the Prophet.” Corrections staff then asked if Richardson was refusing his new cellmate, and he replied that he was. After taking “the Prophet” away, corrections staff returned thirty minutes later with a Use of Force team and asked Richardson if he would submit to the use of restraints. Richardson complied.

Richardson was then taken down to a laundry room where he was stripped, dressed in paper clothes, and put in “hard” restraints. Next, he was locked in a cell with another prisoner (who was also in hard restraints) and left there for three days before being transferred yet again. All told, Richardson alleges that he was held in hard restraints for nearly a month, was forced to sleep on the floor for much of that time, and frequently was refused both showers and bathroom breaks. Richardson also claims that there have been at least 272 reports of inmate-on-inmate violence at USP Lewisburg between January 2008 and July 2011 and that dozens of other inmates have suffered treatment similar to his as a result of this unwritten practice or policy.

The inmate sued for damages and injunctive relief and sought class certification. The district court denied certification on ascertainability grounds, and the inmate appealed. The prison argued that the claims for injunctive relief were moot because they moved the inmate out of the SMU after he sued and before he sought class certification. The prison also argued that all the named defendants had retired or changed jobs and that this too mooted any claim for injunctive relief.

Today, the Third Circuit reversed, rejecting both of the prison’s mootness arguments in a thorough, 44-page opinion. In the opinion’s most important holding, the court reaffirmed the “picking off” exception to mootness, which bars defendants from dodging class suits by mooting named plaintiffs before they have a fair opportunity to seek class certification and reduces premature certification motions.

Joining Smith were Hardiman and Nygaard. Arguing counsel were Alexandra Morgan-Kurtz of the Pennsylvania Institutional Law Project for the inmate and Michael Butler for the prison.

New opinions — government can deny citizenship for false statements on old immigration applications

The Third Circuit has had a flurry of published immigration opinions in recent weeks, and today brings two more, both government wins.

Saliba v. AG — immigration — affirmance — Greenberg

A citizen of Syria falsely claimed to be a citizen of Lebanon when applying for temporary US residency. The deception got him temporary status and later legal permanent residence, but it was caught when he applied for citizenship. The district court denied his petition challenging citizenship denial, and today the Third Circuit affirmed in a lucid and well-reasoned opinion that is two-spaces-after-the-period away from violating every rule of good typography.

Joining Greenberg were Ambro and Jordan. The case was decided without oral argument, which seems like a missed opportunity because losing counsel speaks six languages.


Koszelnik v. Secretary of Dep’t of Homeland Security — immigration — affirmance — Roth

Stop me if this sounds familiar: a citizen of Poland falsely answered a question on a visa application and as a result gained permanent residency, but the falsehood was later caught when he applied for U.S. citizenship. The district court ruled against him, and the Third Circuit today affirmed, noting in a footnote:

Two panels of this Court are filing opinion in Koszelnik v. Secretary, No. 14-4816, and Saliba v. Attorney General, No. 15-3769, on this day dealing with similar issues. Each opinion is a further precedent supporting the other opinion.

(Saliba had a subtantially identical footnote.)

Joining Roth were Fuentes and Krause. Arguing counsel were John Bleimaier of Princeton for the appellant and Neelam Ihsanullah (who I suspect is no longer a member of the National Immigration Project of the National Lawyers Guild) for the government.


If someone approaches you today with this offer — “I will give you $10 if you successfully predict one published opinion for which the Third Circuit will not grant rehearing en banc, but if you lose you have to pay $1,000″ — consider taking a flier on today’s opinions.

New opinion — restitution award against child-porn producer does not bar later civil suit

Doe v. Hesketh — civil — reversal — Greenaway

Matthew Mancuso adopted a five-year-old girl, sexually abused her, took photos and videos of the abuse, and traded this child pornography online. He was convicted of sexual exploitation of a minor and received a sentence that included $200,000 in restitution to the victim. The victim later sued Mancuso under 18 USC 2255, but the district court held that the civil suit was barred by the prior restitution award. Today, the Third Circuit reversed, holding that section 2255 allows victims to sue for damages even if they already have received restitution for the same conduct.

Joining Greenaway were Scirica and Roth. Arguing counsel were Sidney Moore of Georgia for the appellant and Stanley Greenfield of Greenfield & Kraut for the appellee.

More on why I don’t think refusing to confess again in court means that the earlier confession was unreliable

I posted earlier today about the Third Circuit’s habeas corpus affirmance in Staruh v. Superintendent. (And the losing attorney just posted a comment.) I can’t help posting some further thoughts, which assume familiarity with my prior post.

The opinion says that the declarant-against-penal-interest’s “failure to testify is extremely probative of the truthfulness of her statements.” In other words, the fact that she wasn’t willing to repeat her confessions under oath is an extremely strong reason to think the confessions were false: she wouldn’t put her money where her mouth was.

That sounds reasonable enough at first blush, but I think it doesn’t survive scrutiny.

Consider. The defendant had asserted that the grandmom confessed her own guilt, and the defendant wanted the grandmom to repeat that confession in court. Assuming grandmom wasn’t eager to face a first-degree murder trial herself, she had 3 options:

  1. testify that the investigator was lying, she had never confessed, and she was innocent;
  2. testify that investigator was telling the truth but the confession had been a lie and she was innocent; or
  3. refuse to testify.

She chose #3. Outside the jury’s presence, she invoked the 5th Amendment right of self-incrimination. That 5th Amendment invocation is what the opinion referred to as her “failure to testify.”

Now, I’m no great 5th Amendment scholar, but if the grandmother believed her confession either (1) never happened, or (2) was false, why on earth would she invoke her right against self-incrimination? (Her out-of-court confessions weren’t under oath, so this even isn’t a situation where she incriminated herself either way, murder or perjury.)

The panel treated her unwillingness to testify as a tacit admission that her confessions were false, but in reality she was perfectly free to disavow the confessions, expressly, just by testifying. The fact that she refused to testify — that, instead, she pled the 5th — is not an extremely strong reason to think the confessions were false. If anything, it’s a pretty good reason to think they were true.

(And all that’s not just a fluky fact of this particular case, but it often will be true in statement-against-penal-interest / right-to-present-a-defense cases — the cases where the court’s “extremely probative” language will forever after be invoked.)

Now, I admit that it’s possible that grandmom was trying to be extremely clever. Maybe she thought she could make a false confession out of court, count on that confession being admitted at mom’s trial and resulting in mom being found not guilty and not resulting in grandmom being tried for murder herself. That’s not impossible, but I think it’s ludicrously unlikely. This isn’t Hollywood, this is grandmom living in a house with “diapers on the floor, kitchen faucets that did not work, a sink overflowing with dirty dishes, and toilets that were used without water.” Far-fetched what-ifs like that are no reason to set up a general presumption like the court (arguably) did here.

And the language in today’s opinion risks creating a powerful new reward for prosecutors who succeed in forcing recanting witnesses or confessing alternate perps to invoke the 5th Amendment. Now they don’t just keep those witnesses from taking the stand and looking the factfinder in the eye — they also get to make the witnesses’ out-of-court recantations and confessions disappear in a poof of smoke, too.

Do we really need to create another hurdle for defendants fighting to prove their innocence?




New opinion — preventing jurors from hearing the alternate perpetrator’s hearsay confessions does not warrant habeas relief

Staruh v. Superintendent — habeas corpus — affirmance — Smith

Two adults lived in the house where a three year-old died from blunt-force trauma: the victim’s mother and grandmother. The mother was the one charged with murder. On the eve of trial, after repeatedly claiming for over two years she had nothing to do with the injuries, the grandmother reportedly confessed in interviews with a defense investigator.

When the grandmother refused to repeat the confessions in court, the defense sought to tell the jury what the grandmother had said, offering it as a statement against penal interest. The court refused the request on hearsay grounds, and, knowing nothing about the grandmother’s confessions, the jury convicted the mother of murder.

In the habeas corpus appeal now before the Third Circuit, the mother argued that the court’s refusal to admit the grandmother’s confessions violated the mother’s due process right to present her defense. Today, without oral argument, the Third Circuit rejected the claim, affirming the district court’s ruling and denying habeas relief.

The court did not appear to dispute the mother’s contention that the confessions “were made before and during trial; were made on more than one occasion to a court-appointed investigator; were never repudiated; were very detailed; and were not the result of threats or inducements.” Yet it found that the confessions had “no indicia of credibility.” It explained:

Lois [the grandmother], in making the statements, was attempting to have her cake and eat it too.11 She was hoping to prevent her daughter from being convicted of murder by confessing to the crime, while at the same time avoiding criminal liability herself. Her last-minute change of heart, after she had both pleaded guilty to the lesser offense of endangering a child and disavowed any responsibility for Jordan’s death for two and a half years, further supports this view. This appears to be a “justice-subverting ploy” that provides the justification for requiring indicia of truthfulness.

In the footnote, the court noted that the defendant “appears to have been unable to obtain an affidavit from Lois reaffirming her confession . . . casting further doubt on its truthfulness.”

I question the court’s reasoning. Maybe the grandmom was lying to protect the mom. It’s possible. But it’s also possible that grandmom was the real murderer, her repeated and detailed and never-repudiated confession was the truth, and her refusal to affirm it was choosing her own freedom over the mom’s. The court’s certainty about which possibility is the truth, seemingly arrived at with no subsequent evidence or fact-finding about grandmom’s actual motivations, seems unwarranted. That seems like a choice for juries allowed to hear all the facts, not appellate courts.

Perhaps the panel meant only to say that relief was foreclosed by 2254(d)(1)’s limitation on relief, not that the claim failed as a de novo matter, but that’s not how I read the opinion.

In the opinion’s most dangerous passage, the court stated in a footnote that the grandmother’s unwillingness to testify “is extremely probative of the truth of her statements.” Read broadly, this language is nothing less than a repudiation of the penal-interest hearsay exception. The whole reason defendants like the mother seek to get in hearsay statements against penal interest is that the alternate perpetrator isn’t willing to repeat the confession in court. If the hearsay is never reliable enough when the declarant won’t testify at trial, then the penal-interest rule is an umbrella you can use only when it’s not raining. I hope that the court clarifies this critical point on rehearing or in a future case.

Joining Smith were Hardiman and Nygaard. The case was decided without oral argument.

UPDATES: I posted some further thoughts on this case here.

New opinion — the circuit’s next big internet-privacy opinin

In re: Nickelodeon Consumer Privacy Litig. — civil — partial affirmance — Fuentes

The opinion’s cogent introduction:

Most of us understand that what we do on the Internet is not completely private. How could it be? We ask large companies to manage our email, we download directions from smartphones that can pinpoint our GPS coordinates, and we look for information online by typing our queries into search engines. We recognize, even if only intuitively, that our data has to be going somewhere. And indeed it does, feeding an entire system of trackers, cookies, and algorithms designed to capture and monetize the information we generate. Most of the time, we never think about this. We browse the Internet, and the data-collecting infrastructure of the digital world hums along quietly in the background.

Even so, not everything about our online behavior is necessarily public. Numerous federal and state laws prohibit certain kinds of disclosures, and private companies often promise to protect their customers’ privacy in ways that may be enforceable in court. One of our decisions last year, In re Google Inc. Cookie Placement Consumer Privacy Litigation, addressed many of these issues. This case addresses still more.

This is a multidistrict consolidated class action. The plaintiffs are children younger than 13 who allege that the defendants, Viacom and Google, unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites. Many of the plaintiffs’ claims overlap substantially with those we addressed in Google, and indeed fail for similar reasons. Even so, two of the plaintiffs’ claims—one for violation of the federal Video Privacy Protection Act, and one for invasion of privacy under New Jersey law—raise questions of first impression in our Circuit.

The Video Privacy Protection Act, passed by Congress in 1988, prohibits the disclosure of personally identifying information relating to viewers’ consumption of video-related services. Interpreting the Act for the first time, we hold that the law permits plaintiffs to sue only a person who discloses such information, not a person who receives such information. We also hold that the Act’s prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior. In our view, the kinds of disclosures at issue here, involving digital identifiers like IP addresses, fall outside the Act’s protections.

The plaintiffs also claim that Viacom and Google invaded their privacy by committing the tort of intrusion upon seclusion. That claim arises from allegations that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then, despite its assurances, did exactly that. We faced a similar allegation of deceitful conduct in Google, where we vacated the dismissal of state-law claims for invasion of privacy and remanded them for further proceedings. We reach a similar result here, concluding that, at least as to Viacom, the plaintiffs have adequately alleged a claim for intrusion upon seclusion. In so doing, we hold that the 1998 Children’s Online Privacy Protection Act, a federal statute that empowers the Federal Trade Commission to regulate websites that target children, does not preempt the plaintiffs’ state-law privacy claim.

Accordingly, we will affirm the District Court’s dismissal of most of the plaintiffs’ claims, vacate its dismissal of the claim for intrusion upon seclusion against Viacom, and remand the case for further proceedings.

Joining Fuentes were Shwartz and Van Antwerpen. Arguing counsel were Jason Barnes for the appellants, David O’Neil of Debevoise & Plimpton and Michael Rubin of Wilson Sonsini for appellees, and Alan Butler of the Electronic Privacy Information Center and Jeffrey Wall of Sullivan & Cromwell for amici.

New opinion — divided panel reverses conviction based on failure to give entrapment defense [updated]

US v. Dennis — criminal — reversal in part — Nygaard

In a criminal appeal arising out of a stash house reverse sting, a divided panel reversed a defendant’s convictions for robbery and gun possession, holding that the district court erred in failing to instruct the jurors on entrapment, and specifically in weighing competing evidence in the government’s favor to deny the instruction. The majority also rejected the government’s harmless-error argument. It rejected the defendant’s argument that he was the victim of an outrageous prosecution violating due process.

Joining Nygaard was Hardiman; interestingly, Ambro dissented from the instruction reversal, and also expressed measured concerns about stash house reverse stings. Arguing counsel were Benjamin Yaster of Gibbons for the defendant and Mark Coyne for the government.

I expect a government petition for rehearing en banc and I’m certainly curious to see what happens.

[I updated my original post with more details.]

Three new immigration opinions

Three published opinions today — all three were immigration appeals, all three involved Hispanic petitioners, all three were decided without oral argument, and all three were government wins.

Bedolla Avila v. AG — immigration — denial — Smith

The Third Circuit issued an opinion applying the convoluted analysis to decide whether a crime counts as an aggravated felony for purposes of removal. First, the court attempts to apply the formal categorical approach to the statute of conviction. But sometimes the statute of conviction is divisible, and in which case the court departs from formal categorical approach and instead uses a modified categorical approach. (If those terms are Greek, they’re explained in the opinion.) Here, the court held that the petitioner was convicted under a divisible statute and used modified categorical analysis to identify the crime of conviction. Having identified the crime he was convicted of, the court then had to decide if it was an aggravated felony, as follows:

there are two independent but valid routes by which an offense may be found to qualify as an aggravated felony. The first, the illicit trafficking route, provides that a crime is an aggravated felony if it is a felony under state law and contains a trafficking element. Id. The second, the hypothetical federal felony route, provides that a crime is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id.

Applying the hypothetical federal felony route, the court held that the petitioner’s crime was analogous to possession with intent to distribute cocaine and thus qualified as an aggravated felony.

The court also rejected the petitioner’s argument that simultaneous removal proceedings against a person in front of an immigration judge and the Dept of Homeland Security are prohibited.

Joining Smith was McKee and Hardiman. The case was decided without argument; Sandra Greene of Greene Fitzgerald represented the petitioner.


Frias-Camilo v. AG — immigration — denial — Jordan

A native of the Dominican Republic was a lawful permanent resident for 7 years before pleading guilty to conspiracy to possess cocaine, but he “received no jail sentence, no term of probation, no community service, and owed no fines or fees.” The government in all its wisdom decided to deport him anyway. He argued he was not subject to removal because his guilty plea did not result in any punishment. The Third Circuit disagreed and denied his petition.

Joining Jordan were Ambro and Greenberg. The case was decided without oral argument; counsel for the petitioner was Raymond Lahoud of Barkout & Barkout.


Ordonez-Tevalan v. AG — immigration — denial — Greenberg

A Guatamalen woman twice entered the U.S. illegally and was caught both times. She tried to prevent removal the second time by explaining that she came to the U.S. in order to escape an ex-boyfriend who had raped her and threatened to kill her. The Third Circuit rejected her appeal on 3 independent grounds — the immigration judge’s credibility findings against her, her failure to prove that the abuse she feared was the result of her membership in a protected class, and her failure to prove that her abuse was caused or allowed by an official.

The court did rule against the government on a jurisdictional issue. While the Third Circuit petition was pending, the parties jointly moved to reopen proceedings in the Board of Immigration Appeals (apparently to correct an error in the record), and the BIA issued new orders denying relief on the same grounds as before. The petitioners did not file a new petition challenging the new orders, and the government argued that the Third Circuit lacked jurisdiction to review her challenge to the old orders. The court rejected this argument on the ground that the new orders did not alter the prior decisions.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument; counsel for the petitioners was Carol Donohoe of Reading, Pa.




“It would be surprising and distressing were the Third Circuit to allow the district court decision to stand.”

The quote forming the title of this post is from this story by Carrie Salls today on PennRecord. The district court decision in question is a ruling denying the Federal Trade Commission’s request of an injunction blocking a merger of two Harrisburg-area hospitals. The story reports that the district court’s ruling marked the first defeat on an attempted federal court hospital merger challenge in more than 10 years for the FTC.”

The quote is by former FTC general counsel Stephen Calkins, who predicts the circuit will rule on the antitrust appeal by the end of the summer (the district court ruling reportedly was in May, but the FTC already filed its reply brief earlier this week, opening brief here). Calkins also is quoted saying “it is especially important for the FTC to win the Third Circuit appeal,” and describing the district court ruling as “appallingly bad.”


Third Circuit revisits Lehman Brothers in another must-read sanctions opinion

Roberts v. Ferman — civil — affirmance — Smith

Fellow Third Circuit enthusiasts will recall the court’s ruling last year in Lehman Brothers, where the court held that a litigant’s failure to include a transcript in the appellate record resulted in forfeiture of the litigant’s claim. The ruling sparked much discussion, some of it critical of the opinion, some of it on this blog (see for example my post and this Third Circuit Bar Association newsletter article by Howard Bashman and me).

Today, the Third Circuit revisited Lehman Brothers, vigorously reaffirming the ruling but also emphasizing its narrowness. The court tartly noted, “we did not cavalierly hold that any failure to comply with [FRAP] Rule 10(b) would result in forfeiture.” It explained:

The takeaway, then, from Lehman Brothers should be clear: Gateway made an affirmative and serious misstatement in its brief before this Court when it stated that no record of the telephonic oral argument existed. This, we concluded, evinced either an intent to deceive the Court or a “remarkable lack of diligence.” Id. at 101. Even so, that alone was insufficient to warrant forfeiture, because we went on to consider Gateway’s post hoc explanation for its failure. Only upon finding Gateway’s explanation lacking did we conclude that forfeiture was an appropriate sanction.

The court held that Lehman Brothers‘ forfeiture sanction was not warranted in this case, even though this appellant also failed to include in the record some available and relevant transcripts, because “[t]here is no allegation that Roberts [the appellant] misrepresented the existence or non-existence of the trial transcript or that the explanation for his omission was a disingenuous post hoc rationalization.”

If today’s opinion’s ended there it would still be CA3-nerd can’t-miss reading, but there’s much more.

Gaps in the transcript were discovered while the case was still in district court, and the court directed the appellant to follow the FRAP 10(c) procedure for recreating the missing record. When the appellant failed to do so, the district court dismissed for failure to prosecute the appellant’s post-trial motion. With some withering language — for example, “Roberts’ counsel should take the time to read Rule 10(c)” — the Third Circuit held that this ruling was no abuse of discretion, and, alternatively, that the appellant’s actions would also foreclose review of the merits of his appeal. The opinion gives this useful practice guidance:

[O]ur holding in this case leaves open avenues for appellants to seek appropriate relief if they can show that they were prejudiced by the loss of part or all of the record below. Such an appellant must comply with the dictates of Rule 10(c) and then present specific reasons why his or her attempt to recreate the record was insufficient. This would allow us on appeal (or the district court when considering a posttrial motion) to properly assess whether we could in fact grant meaningful review of the appellant’s claims without the actual trial transcript available to us.

Finally, the court held that the district judge did not err in reconsidering sua sponte an earlier denial of summary judgment.

Joining Smith were Ambro and Krause. The case was decided without oral argument. Counsel for the appellant was Brian Puricelli, who in 2004 was the subject of a New York Times story (!) describing one of his briefs as “infested with typographical errors,” and reporting that a federal judge wrote, “Mr. Puricelli’s complete lack of care in his written product shows disrespect for the court.” Counsel for the appellee was Carol VanderWoude of Marshall Dennehy.



Divided Third Circuit panel upholds deportation based on special court-martial conviction

Gourzong v. AG — immigration — dismissal — Rendell

Under federal law, a non-citizen can be deported if he was “convicted of an aggravated felony,” and “convicted” requires a judgment of guilt “by a court.” Jamaican native Gurson Gourzong was convicted of an aggravated felony by a special court-martial. Unlike a general court-martial, a special court-martial is not necessarily presided over by a legally trained judge, and the record doesn’t clearly establish whether a legally trained judge presided over Gourzong’s special court martial.

Today, a divided Third Circuit panel held that, because “as a general matter” special courts-martial qualify as courts, therefore the special court-martial conviction here was a judgment by a “court,” and accordingly Gourzong was removable. In a footnote, the panel left open the possibility that aliens could prove their specific special courts-martial were not “courts,” but said Gourzong had made no such showing.

Judge Cowen dissented. The nub of his disagreement came down to his position that it should have been the government’s burden, not the alien’s, to establish that the specific special court-martial at issue qualified as a court. He also disagreed that the special courts-martial typically qualfied as courts, noting that the presiding officers lack military judges’ training and independence. And he criticized the government’s conduct in the case, noting its history of changing its position and its failure to timely file its brief.

Joining Rendell was Fisher; Cowen dissented. Arguing counsel were Craig Shagin of the Shagin Law Group for the petitioner and Jesse Bless for the government. The panel thanked Shagin for agreeing to serve as pro bono counsel for his “excellent advocacy” in the case, and Cowen  praised Shagin as “Gourzong’s able pro bono counsel.”

[As the circuit’s resident typography scold, I register my horror that the majority opinion put its record cites in boldface. My horror is mitigated only partially by the opinion’s use of hard spaces after section symbols.]

A Friday-morning shaking of my little fist against perceived injustice

Suppose, dear reader, you are in prison, convicted of murder. You believe you are innocent. You lost your direct appeal, so now you don’t get an appointed lawyer, you’re poor, and you have to prove your innocence by yourself, from prison. Good luck!

Then, a miracle. Another prisoner — call him McDougald — talked to your co-defendant, and your co-defendant admitted to McDougald that he committed the murder, not you, and that he lied at your trial in exchange for a lenient sentence for himself.  McDougald sent you a declaration laying out what your co-defendant admitted. Eureka!

Is McDougald telling the truth? Will the court believe him? Well, McDougald also gave you some corroboration. The co-defendant told McDougald that he left a fingerprint at the murder scene. McDougald also sent you the police forensic report, which the prosecution never turned over to you, confirming that they found the co-defendant’s fingerprints there.

You’re saved! But then, disaster.

Before you can file your blockbuster new evidence, you break a prison rule. As punishment, you’re going to be put in the Restricted Housing Unit. When the guards come to move you, they see that you have four boxes of legal materials, including McDougald’s declaration and the fingerprint report. You’re allowed to have four boxes of legal materials — but when you’re in the RHU, you’re only allowed to have one box.

And now it gets Kafkaesque: The guards tell you that since you have four boxes and RHU prisoners are only allowed to have one box, they’re going to seize all four boxes and destroy them. (Oh, and the cherry on top is they write you up again, for possession of contraband — your legal papers.)


Now you see why I’m an appellate blogger instead of a crime-story writer.


The foregoing facts are from Coulston v. Superintendent, a non-precedential per curiam opinion issued yesterday by the Third Circuit panel of Ambro, Shwartz, and Nygaard. After SCI Houtzdale guards seized prisoner Troy Coulston’s files, he filed a civil-rights suit alleging denial of his constitutional right of access to the courts. Prisons don’t get to destroy inmates’ legal papers every time they break a prison rule, right?

To win his access-to-the-courts claim, Coulston had to show that he lost a chance to pursue an underlying claim that was “nonfrivolous” or “arguable,” and that he has no other remedy. Sounds like Coulston, no? But, in his pro se complaint, the remedy Coulston sought was money damages, and the Third Circuit found this fatal to his claim:

Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), he cannot do so at this time. Heck holds that a damages remedy that necessarily implies the invalidity of a criminal conviction is impermissible while that conviction stands. Id. Coulston cannot demonstrate that the loss of his PCRA claim injured him unless he also demonstrates that his PCRA petition had merit, which necessarily would imply the invalidity of his murder conviction. [Cites to three 7th Circuit cases omitted.]

But wait. Does his access-to-the-courts claim “necessarily” imply the invalidity of his conviction? All Coulston has to show is that his underlying claim is “nonfrivolous,” not that it’s meritorious. Non-frivolousness doesn’t necessarily imply invalidity any more than probable cause would necessarily imply guilt beyond a reasonable doubt.

In other words, a finding that Coulston’s underlying claim is nonfrivolous plainly would not entitle him to release. Compare Heck, where the Court expressly relied on the lower court’s view that “if he won his case the state would be obliged to release him even if he hadn’t sought that relief.” That’s what “necessarily” means. Said Heck: “if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.” Hey, Coulston, that’s you.

And ohbytheway what a wacky Catch-22. You can sue the prison for taking away your ability to overturn your conviction, but only if you overturn your conviction first. How exquisite!

At an absolute minimum, given the apparent absence of controlling precedent on whether Heck bars access-to-courts claims for money damages, was this a question appropriate to decide in a non-precedential opinion? (Not just non-precedential, by the way, but also unsigned and issued one day after submission to the panel, without oral argument, and after denying the pro se litigant’s request for counsel despite “acknowledg[ing] the concerns Coulston expresses in his motion for counsel” because “we conclude he should nevertheless be capable of presenting his appeal.”)

Not in my book.

To its credit, the panel tries to soften the blow in a footnote, stressing that dismissals under Heck are without prejudice and explaining that prisoners may avoid dismissal under Heck by seeking injunctive relief instead of money damages.

Well, hooey. If the prison already destroyed Coulston’s files, what good will an injunction do him? And what non-moot injunctive relief would he even have standing to seek? If SCI Houtzdale really does have a policy of immediately destroying prisoners’ legal files, how could any prisoner bring a justiciable injunctive-relief claim? Besides, I see nothing in the opinion to discourage a district court from simply staying Coulston’s injunctive-relief-seeking action and then denying it once Coulston has failed to overturn his conviction.

The footnote also says prisoners alleging denial of access to the courts may ask the courts to extend the time for filing their habeas petitions, citing a district court case. But neither 28 USC 2244(d)(1)(B) nor the vanishingly narrow equitable tolling doctrine give me much confidence any prisoner will be able to benefit from this suggestion, either, even if you assume that more time always cures file destruction.

The footnote concludes, “Heck is thus an obstacle, but not an insurmountable one, to obtaining review of a conviction when a prisoner is denied access to the courts.” I wish I shared the panel’s optimism.

If I’m completely off my rocker here — wouldn’t be the first time — I’d sure be grateful to be set straight.

“But the results are so absurd that they call out for review by the highest court itself.”

So sayeth prominent legal columnist Noah Feldman in this post today on He’s talking about the Third Circuit’s panel majority’s decision earlier this week in Free Speech Coalition, which I posted about here. Professor Feldman’s column, after slamming the opinion as “absurd” and “tone-deaf,” concludes by predicting that the Supreme Court “is likely to respond.”

New opinion — court rules for pornography producers in challenge to records laws

Free Speech Coalition v. AG — civil — vacatur — Smith

A divided Third Circuit panel today ruled in favor of pornography-industry plaintiffs challenging federal laws requiring them to maintain and allow inspection of certain records. The majority ruled that the statutes and regulations were content based and thus subject to scrutiny under the First Amendment. It further held that the inspection provisions facially violated the Fourth Amendment. Dissenting on the First Amendment issue, Judge Rendell argued strict scrutiny should not apply. This case was before the court for the third time; I discussed the previous round here.

Joining Smith was Scirica, with Rendell dissenting. Arguing counsel were J. Michael Murray for the plaintiffs and Anne Murphy for the government.

Volokh Conspiracy analyzes a pending Third Circuit self-incrimination case

Orin Kerr just posted an interesting piece on the Volokh Conspiracy blog discussing a pending Third Circuit appeal.

His post is entitled, “The Fifth Amendment limits on forced decryption and applying the ‘foregone conclusion’ doctrine,” and his subject is United States v. Apple Macpro, No. 15-3537, a pending appeal from an EDPA civil contempt order for failing to provide passwords to decrypt a hard drive believed to contain child pornography. (A New York Times story on the underlying case is here.)

After discussing the parties’ briefs, which he links in his post, Professor Kerr suggests “a pretty simple Fifth Amendment rule:”

On one hand, the government can’t make you enter in the password if that is how they make the case that you know it. On the other hand, if the government already knows that you know the password, you can be required to enter it in without a Fifth Amendment bar.

Worth a read.

New criminal sentencing opinion

United States v. Thompson — criminal — affirmance — Greenaway

In 2014, the US Sentencing Commission amended the sentencing guidelines to retroactively reduce the advisory range for many drug-crime sentences. A defendant who was sentenced before the change can get the reduction too, but only if their sentence was “based on” the earlier higher range and the reduction would be consistent with Sentencing Commission policy, 18 USC § 3582. A different guideline range applies to career offenders, and that range didn’t go down.

Today’s appeal presents an interesting question: what about defendants who qualified to be sentenced using the career-offender range (which didn’t change) but who made a deal so that they actually were sentenced under the standard range (which did). Can they get the reduction?

The Sentencing Commission answered this question, unfavorably to defendants, in a policy statement called Amendment 759. But both of the defendants here committed their crimes before Amendment 759 was enacted, and they argued that applying it against them would be ex post facto punishment.

Today, the Third Circuit held that the defendants’ sentences were “based on” the lowered guidelines range but that reducing their sentences was not consistent with Sentencing Commission policy, and that applying the policy against them did not violate the ex post facto clause because denying them the reduction “does not lengthen the period of time they will spend incarcerated–it merely denies them the benefit of a discretionary reduction of that period of time.” (Offhand I’d have thought the sounder basis for rejecting the defendants’ position was that at the time of their crimes they had no grounds to expect a non-career-offender-range deal.)

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument; pending Third Circuit nominee Rebecca Haywood was one of the government’s attorneys.

New opinions — a major immigration reversal, and an Alito loss

Cen v. Attorney General — immigration — reversal — Krause

The Third Circuit today struck down an immigration regulation, and it’s hard for me to imagine what possessed the government to take the position it did. Here’s the introduction from today’s opinion:

The Immigration and Nationality Act (INA) allows a child under the age of twenty-one whose alien parent has married a U.S. citizen abroad to obtain a temporary “K-4” visa to accompany her parent to the United States and, based on the parent’s marriage, to apply to adjust her status to that of a lawful permanent resident. On a petition for review of a decision of the Board of Immigration Appeals (BIA), we now consider the validity of a regulation that makes it impossible for a child who entered on such a visa to remain with her family and adjust her status from within the United States if she was over the age of eighteen at the time of her parent’s marriage. Because the regulation departs from the plain language of the INA, contravenes congressional intent, and exceeds the permissible scope of the Attorney General’s regulatory authority, we conclude it is invalid. We therefore will grant the petition for review and will reverse and remand to the BIA for further proceedings.

The Seventh Circuit struck down the same regulation in 2013, but the government has continued to enforce it outside that circuit. The Third Circuit today held that the regulation failed at step two of Chevron analysis. The opinion is thorough, and vigorous: “the Government’s reading of § 1255(d) would transform K-4 visas for older K-4 children into nothing more than tourist visas, giving their holders only a glimpse of what life with their families might have been like in America before being sent home because they are legally incapable of fulfilling § 1255(a)(2)’s eligibility requirement. Such a reading defies common sense.”

Joining Krause were Shwartz and Greenberg. Arguing counsel were Scott Bratton for the petitioner and Robert Stalzer for the government.


1621 Rt 22 West Operating Co. v. NLRB — labor — affirmance — Jordan

If I were a circuit judge, would I be a little nervous about ruling against a party represented a Supreme Court Justice’s sister? I might. But that’s what the Third Circuit fearlessly did today, ruling in favor of the NLRB in a case where arguing counsel for the petitioner was Rosemary Alito, the Justice’s younger sister and quite a formidible lawyer in her own right.

The appeal arose out of a workplace union election. After the NLRB ruled that the employer engaged in anti-union activities, the employer argued for the first time on appeal that the NLRB’s acting general counsel was serving illegally and therefore his complaint and all that followed were invalid. The Third Circuit held that it lacked jurisdiction to hear this argument because it was not exhausted. The court also rejected the employer’s arguments that an NLRB member should have recused because his chief counsel had previously represented the union in this case but did not participate in the NLRB’s review, that its labor practices were legal, and that the NLRB imposed the wrong remedy.

Joining Jordan, who has been on an opinion tear lately, were Ambro and Scirica. Arguing counsel were Alito of K&L Gates for the employer and Jeffrey Burritt and Benjamin Shultz for the government.

News update

Yesterday Andrew Seidman had an article on entitled “Arcane legal issue could keep Bridgegate list secret,” summarizing the parties’ recent Third Circuit filings.

On Friday Nick Rumell had this article on Courthouse News Service entitled “Pa’s Ballot Access Rules Unfair to Third Parties,” discussing the Third Circuit’s ruling last week in Constitution Party and quoting prevailing counsel.

An interesting divided-panel employment-discrimination case that’s unpublished

I rarely blog about the Third Circuit’s non-published opinions, but the court issued one today which readers may find interesting. The case is Young v. City of Philadelphia Police Dept.

The appeal arises from a Title VII retaliation suit brought by a woman against the Philadelphia Police. The gist of her complaint is that, after she filed a sexual-harassment complaint against a fellow police trainee, the department retaliated by commencing a campaign of disciplinary write-ups for minor violations that she’d never been punished for before her complaint.

Title VII retaliation claims proceed in 3 stages: (1) the plaintiff must make a prima facie case of retaliation, (2) the employer must provide a legitimate non-discriminatory reason for its adverse employment action, and (3) the plaintiff must prove that the proffered explanation was pretextual and retaliation was the real motive. Here the district court granted summary judgment in favor of the employer. It ruled that the plaintiff failed at the first, prima facie stage because she did not show that retaliation was the  but-for cause for her discipline.

All three members of the Third Circuit panel agreed that the district court was wrong to require but-for causation at the first, prima facie stage. The majority opinion observed that the district court’s error was understandable “[b]ecause we have not stated in a precedential opinion that ‘but for’ caustion is not required at the prima facie stage of summary judgment analysis.”

The panel majority (Shwartz joined by Greenaway) affirmed anyway, ruling that the plaintiff failed to carry her burden at the the third, pretext stage. Vanaskie dissented because he believed the plaintiff’s pretext showing created a material issue of fact sufficient to survive summary judgment.

I have a few thoughts:

First, the opinion says the district court was wrong to require but-for causation at the prima facie stage, and it expressly acknowledges that no prior precedential opinion so holds. So why the heck is this opinion unpublished?

Second, the fact that there’s a dissent on the pretext issue adds a least a little to my surprise that it’s unpublished. While there’s certainly no rule that says that divided-panel opinions have to be published, they often are.

Third, the way the panel split here is interesting. I consider Vanaskie to be generally more conservative than Greenaway or Shwartz (see, for example, his recent en banc voting record), but most would consider his position here (favoring an employment-discrimination plaintiff) more liberal.

Finally, on a first read I found Vanaskie’s dissent pretty persuasive. But I’d be surprised if the votes are there for en banc rehearing.

Anyway, interesting case, and happy Friday.

An update on en banc petitions

A couple quick updates on the Third Circuit’s en banc rehearing front:

First, the court denied en banc rehearing in the NFL concussion-suit case. Media coverage here and here and in interesting blog post here.

Second, the panel losers in In re Asbestos Products Liability (panel decision post here) filed earlier this week for en banc and panel rehearing, coverage here.

Finally, I’ve got a hunch that draft opinions are circulating already in the Chavez v. Dole Food case argued en banc in February.

Third Circuit affirms ruling striking down PA third-party ballot-access limits, and wallops the AG

The Constitution Party of Pa. v. Cortes — election law — affirmance — Smith

The Third Circuit has been issuing some fascinating opinions over the past few weeks, and today brings another. The court affirmed a summary judgment grant in favor of several political parties who challenged Pennsylvania’s election-law system for making it too difficult for third parties to get on the ballot.

The defendants in the case were two state elections officials, and they were represented on appeal by the office of the PA attorney general. The officials did not challenge the substance of the district court ruling that the state’s ballot-access provisions were unconstitutional as applied. Instead, the officials appealed only two issues their brief characterized as “relatively narrow” and “more technical,” namely whether the district court’s order was invalid because it denied a facial challenge but accepted an as-applied challenge and whether the plaintiffs sued the wrong state officials.

The opinion amounts to a brutal indictment of the competence of the OAG’s advocacy in the case, an indictment all the more remarkable coming from one of the court’s most even-tempered judges. On the first appeal issue, the appellants “misunderstand[] the fundamental difference between facial and as-applied challenges.” Ouch. On the second issue, their position “falls apart once one properly understands the District Court’s opinion” and “is, to say the least, off the mark.” Pow.

Perhaps the most withering criticism comes in a footnote discussing the appellants’ decision not to challenge the district court’s ruling that the plaintiff’s constitutional rights were violated (emphasis mine):

In its opening brief, the Commonwealth notes that “[t]he legal rub here is that, even assuming some constitutional injury, or potential injury, has been inflicted on the litigants . . . that injury was not and could not be inflicted by the two officials they sued . . . .” Appellants’ Br. at 3. The Commonwealth then makes the two arguments discussed above but never addresses the District Court’s opinion on the merits. The Aspiring Parties take note of this and state that “the Commonwealth concedes that the challenged statutory scheme is unconstitutional as applied to the Minor Parties.” Appellees’ Br. at 28. In its reply, the Commonwealth argues that “[t]here was no concession.” Appellants’ Reply Br. at 3. Instead, the Commonwealth tries to argue that somehow they were able to dodge the merits of this case by assuming an injury and only raising these narrower issues on appeal. This displays a fundamental misunderstanding of the federal appellate process: by not challenging the merits of the District Court’s order, if the Commonwealth loses on the two arguments it raised in this appeal, the order will remain in effect and the Commonwealth will not be able to enforce both provisions against the Aspiring Parties. Indeed, at oral argument the Commonwealth conceded that this was a conscious decision, but when asked why it chose such a litigation strategy, its answer was more opaque than illuminating. See Oral Argument at 00:10:20, Cortes v. Constitution Party of Pa., (No. 15-3046).

Language like that is rare in this circuit; seeing it directed at lawyers in an office of a state attorney general is extraordinary. What a disaster.

Joining Smith were Ambro and Krause. Arguing counsel were Oliver Hall of the Center for Competitive Democracy for the third-party challengers and Claudia Tesoro of the Office of the Attorney General, joined on the brief by three other OAG lawyers and one law firm lawyer, for the state officials.

Divided panel issues significant abortion-clinic-access ruling

Bruni v. City of Pittsburgh — First Amendment — vacate in part — Jordan

The overwhelming majority of circuit court decisions are uncontroversial and essentially non-ideological. This ain’t one of them.

The Third Circuit today vacated an order dismissing First Amendment challenge to Pittsburgh’s ordinance prohibiting certain speech within fifteen feet of health care facilities. The suit was brought by five plaintiffs who “engage in what they call ‘sidewalk counseling’ on the public sidewalk outside of a Pittsburgh Planned Parenthood facility in an effort, through close conversation, to persuade women to forego abortion services.”

The blockbuster language from Jordan’s opinion:

Considered in the light most favorable to the Plaintiffs, the First Amendment claims are sufficient to go forward at this stage of the litigation. The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment, and the City cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the City’s legitimate, substantial, and content-neutral interests. McCullen teaches that the constitutionality of buffer zone laws turns on the factual circumstances giving rise to the law in each individual case – the same type of buffer zone may be upheld on one record where it might be struck down on another. Hence, dismissal of claims challenging ordinances like the one at issue here will rarely, if ever, be appropriate at the pleading stage. Instead, factual development will likely be indispensable to the assessment of whether an ordinance is constitutionally permissible.

Fuentes disagreed:

I agree with the majority that the allegations in the Complaint, taken as true, establish that Pittsburgh’s Ordinance restricting certain speech within 15 feet of designated health care facilities violates the intermediate-scrutiny standard for time, place, and manner regulations. I disagree, however, with the majority’s reasoning in support of that result. In particular, I disagree with its conclusion that the Supreme Court’s decision in McCullen v. Coakley requires governments that place “significant” burdens on speech to prove either that less speech-restrictive measures have failed or that alternative measures were “seriously” considered and “reasonably” rejected. That interpretation distorts narrow-tailoring doctrine by eliminating the government’s latitude to adopt regulations that are not “the least restrictive or least intrusive means of serving the government’s interests.” Nothing in McCullen or the Supreme Court’s First Amendment jurisprudence requires us to apply such a rule. Accordingly, as to Plaintiffs’ free-speech claim, I concur only in the judgment.

In an especially strongly worded footnote, the majority fired back (emphasis mine):

The concurrence repeatedly tries to downplay the significance of McCullen – variously referring to the opinion as “incremental,” “modest,” and “unexceptional” (Concurrence at 4-5) – and devotes much of its energy to narrowing that case only to its facts. It does so, presumably, in service of a desire to avoid the import of the Supreme Court’s decision. Consider our colleague’s reading of McCullen: “[u]nlike the majority, I do not believe that McCullen announces a general rule requiring the government to affirmatively prove that less-restrictive measures would fail to achieve its interests.” (Concurrence at 1-2.) Then try to reconcile that with the actual language of McCullen: “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” 134 S. Ct. at 2540. We are more ready than our colleague is to take the high Court at its word, and that is the heart of our disagreement with him.

I’d certainly expect a petition for en banc rehearing here. I’m not making any prediction about whether it would be granted, but I expect it would get a very careful look.

Joining Jordan was Vanaskie; Fuentes joined in part and concurred in the judgment on the First Amendment issue. Arguing counsel were Matthew Bowman (a CA3 Alito clerk) of the Alliance Defending Freedom for the challengers and Matthew McHale for the city.

Is the Third Circuit a “Judicial Hellhole?”

H. Sherman “Tiger” Joyce, president of the American Tort Reform Association, had a column on yesterday (link here) criticizing the Third Circuit’s 2015 ruling in In re Avandia Marketing. Joyce argues that RICO suits challenging drug-company marketing such as Avandia Marketing are an “important and obvious misuse of RICO” and he urges the Supreme Court to review the case.

Of note to Third Circuit readers:

The good news is that most courts have seen through the lie. * * *

But in Philadelphia, once criticized by The Wall Street Journal as “The City of Unbrotherly Torts” and twice in the past six years ranked by my organization as the worst of the nation’s civil court “Judicial Hellholes,” a federal trial judge denied GlaxoSmithKline’s motion to dismiss the dubious fraud claims of three labor union-affiliated health insurers. And splitting with three other circuit courts, the U.S. Third Circuit Court of Appeals recently upheld the trial court’s decision to proceed with the case.

So GSK has appealed again to the U.S. Supreme Court, which now has a chance to clarify the law and end this pernicious new line of legal extortion that will only exert more upward pressure on drug prices as still higher litigation costs are passed on to consumers. Justices are expected to meet June 2 to decide on additional cases they’ll hear next term, and everyone concerned about the affordability of medicines should hope they agree to hear this appeal.

If the Third Circuit’s decision is allowed to stand, opportunistic personal injury lawyers, their third-party payer clients and even some politically ambitious state attorneys general will be encouraged to misuse frivolous RICO lawsuits every time a pharmaceutical company changes warning label language in the interest of public safety.

The circuit court’s loose application of well-settled RICO causation and injury principles, and its disregard of general pleading standards under the Supreme Court’s Twombly and Iqbal decisions, can only invite third-party payers to seek windfalls — even if they never directly relied on a drug company’s allegedly fraudulent marketing or suffered an injury.

So Ambro, Scirica, and Roth, plus Rufe, all got bamboozled into loosely applying RICO and disregarding general pleading standards, huh? Color me skeptical.


Civ Pro refresher: suing the wrong defendant isn’t a standing issue

Davis v. Wells Fargo — civil — vacate in part — Jordan

The Third Circuit vacated in part in this messy civil appeal arising out of a foreclosure dispute between a homeowner, Wells Fargo bank, and an insurer. The court affirmed dismissal of the homeowner’s claims against Wells Fargo on claim preclusion and statute-of-limitations grounds. But the court reversed the dismissal of claims against the insurer. The district court had dismissed the case on standing grounds because the homeowner sued the wrong corporate entity, but the Third Circuit explained that “this case is not about standing at all” and that whether plaintiff sued the right defendant should have been decided under Rule 12(b)(6), not 12(b)(1). The opinion gives a lucid analysis of when each rule applies and why it matters.

While affirming dismissal of the claims against Wells Fargo, the court included this striking footnote:

Although we affirm the District Court’s dismissal of Davis’s claims against Wells Fargo, we would be remiss if we did not add a note about the disturbing allegations he has made. If they are true, the bank locked Davis out of his home before starting foreclosure proceedings, initiated a series of fraudulent assignments of the mortgage, and obtained insurance on the Property as part of a kickback scheme with the insurer while Davis paid excessive premiums. Although the insurance should have covered the leak and damage to the wall, Wells Fargo allegedly settled the damage claim for a payment of $317 – for roof repairs – but then took no action to actually repair the roof. And all of this took place during and around the time that Davis was serving three years of active duty in the United States Army in a time of war.

When asked about those facts during oral argument, Wells Fargo did not dispute their veracity, nor did its counsel seem particularly concerned about the brazenly exploitative character of the alleged actions of the bank. In one telling portion of the argument, when asked whether the bank had the right to make an insurance claim, take money for a roof repair, and then pocket that money and not make the repair, all while knowing the result could be further deterioration and structural damage to the Property, counsel said simply, “that is what the mortgage gives them the right to do.” See Oral Argument,, at 19:13-19:38 (argued March 2, 2016). If the allegations are true, they raise serious questions about bad faith that we are not now in a position to address. Suffice it to say, however, that although we affirm the dismissal of Davis’s claims, we hope the allegations of the amended complaint do not reflect Wells Fargo’s actual business practices.

Congratulations, Wells Fargo and counsel on your appellate victory!

Joining Jordan were Greenberg and Scirica. Arguing counsel were Earl Raynor for the homeowner, Stacey Scrivani of Stevens & Lee for Wells Fargo, and Matthew Faranda-Diedrich of Dilworth Paxson for the insurer.

A rare dissent from denial of rehearing en banc

Easy to miss among the unpublished opinions issued today was an order denying rehearing en banc in United States v. Kelly. The panel opinion, also unpublished, is here. It was authored by Greenaway and joined by Scirica and Roth.

Here’s the interesting part: four judges (McKee, joined by Ambro, Smith, and Restrepo) dissented from the denial of rehearing. Any dissent from denial of rehearing is quite rare in the Third Circuit. It’s rarer still given that the panel opinion was both unpublished and unanimous, and that none of the dissenters sat on the panel.

The heart of the issue is how jurors are instructed in drug-conspiracy cases, specifically whether those instructions unjustly expose mere purchasers to criminal liability as conspirators. McKee’s opinion explains his basis for dissenting in this introduction:

I appreciate that the panel’s decision in this case was
dictated by circuit precedent and that my colleagues therefore
felt compelled to affirm the jury’s determination that Kelly’s
membership in the Alford drug distribution conspiracy had
been proven beyond a reasonable doubt. However, I take the
unusual step of filing this opinion sur denial of rehearing to
explain why we have made a mistake by not availing
ourselves of this opportunity to reexamine our jury
instructions in drug conspiracies. I do so even though this
appeal has been resolved in a non-precedential opinion
because our current approach to informing jurors how to
distinguish between a purchaser from a drug conspiracy and a
member of that conspiracy is so meaningless that it presents
the illusion of an objective standard while furnishing no
guidance to jurors who must make this crucial distinction.

Our current standard for channeling a jury’s inquiry in
such prosecutions fails to provide a jury with sufficient
guidance to allow jurors to appropriately differentiate
between customers and co-conspirators. Although some of
our factors may be relevant to this inquiry, the irrelevant
factors I discuss below create the very real danger of placing
a thumb on the conspiratorial side of the scale and thereby
tipping the balance in favor of a conviction for conspiracy
when only a buyer-seller relationship has been established.
Because there is no way of knowing how this jury would have
viewed the circumstantial evidence against Kelly if that
additional weight had not been added to the conspiratorial
side of the scale, I believe this case “involves a question of
exceptional importance,” meriting en banc reconsideration.
Fed. R. App. P. 35(a).

He concludes thus:

Given the extent to which illegal drugs and illegal drug
sales continue to devastate and destroy lives and
communities, I have no doubt that we will have another
opportunity to revisit the factors we use in attempting to
distinguish between purchasers and co-conspirators.
Regrettably, in the interim we also will no doubt expose
numerous purchasers of drugs (even those who purchase
merely to “feed” their own addiction) to the exponentially
greater penalties that attach to being a member of a drug
conspiracy. I therefore take this opportunity to express my
concern that we are failing to afford jurors the guidance they
need and that the law requires in deciding whether evidence is
sufficient to establish guilt beyond a reasonable doubt in
cases such as this. Worse yet, the “guidance” that we do give
jurors is not only less than helpful, it is misleading because it
can be an open invitation to convict mere purchasers of illegal
drugs of the far more serious crime of being a member of a
drug conspiracy. Accordingly, I now echo the concern
expressed by Judge Becker a decade and a half ago and
explain why we should avail ourselves of this opportunity and
grant Kelly’s petition for rehearing.

Thirteen judges participated in the en banc rehearing decision, so the dissenters apparently fell three votes short, with five judges appointed by Democratic presidents not dissenting.

(I say “apparently” because nothing requires a judge who voted in favor of rehearing en banc to dissent from the denial. So it’s theoretically possible that one or two judges voted to grant rehearing but declined to join McKee’s dissent or issue their own.)

Two new opinions — a big telecom case and a little criminal-sentencing case

Stirk Holdings v. FCC — agency / telecom — vacate and remand — Ambro

Here is the remarkable introduction to Judge Ambro’s remarkable opinion today scolding the FCC:

Twelve years have passed since we first took up challenges to the broadcast ownership rules and diversity initiatives of the Federal Communications Commission (“FCC” or “Commission”). In some respects the Commission has made progress in the intervening years. In key areas, however, it has fallen short. These shortcomings are at the center of this dispute—the third (and likely not the last) round in a protracted battle over the future of the nation’s broadcast industry. Specifically, the parties present challenges to the Commission’s “eligible entity” definition, its Quadrennial Review process, and its rule on television joint sales agreements.
Although courts owe deference to agencies, we also recognize that, “[a]t some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.” Public Citizen Health Research Group v. Chao, 314 F.3d 143, 158 (3d Cir. 2002) (emphasis and internal quotation marks omitted). For the Commission’s stalled efforts to promote diversity in the broadcast industry, that time has come. We conclude that the FCC has unreasonably delayed action on its definition of an “eligible entity”—a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership—and we remand with an order for it to act promptly.

Equally troubling is that nearly a decade has passed since the Commission last completed a review of its broadcast ownership rules. These rules lay the groundwork for how the broadcast industry operates and have major implications for television, radio, and newspaper organizations. Although federal law commands the Commission to conduct a review of its rules every four years, the 2006 cycle is the last one it has finished; the 2010 and 2014 reviews remain open. Several broadcast owners have petitioned us to wipe all the rules off the books in response to this delay—creating, in effect, complete deregulation in the industry. This is the administrative law equivalent of burning down the house to roast the pig, and we decline to order it. However, we note that this remedy, while extreme, might be justified in the future if the Commission does not act quickly to carry out its legislative mandate.

Whereas the first two issues before us involve agency delay, the third is a challenge to agency action. The Commission regulates the number of television stations a company can own. In 2014, it determined that parties were evading its ownership limits through the influence exerted by advertising contracts known as joint sales agreements. As a result, it created a rule designed to address this perceived problem. However, we conclude that the Commission improperly enacted the rule; hence we vacate it and remand the matter to the Commission.

Ambro was joined by Fuentes; Scirica dissented in part because he would have gone further and ordered the FCC to issue its 2010 quadrennial review within 6 months. Arguing counsel were David Gossett for the FCC, and Helgi Walker of Gibson Dunn, Patrick Philbin of Kirkland & Ellis, and Georgetown Law professor Angela Campbell for various petitioners/intervenors.


United States v. Nerius — criminal sentencing — affirmance — Shwartz

Jean Nerius was convicted of two crimes. He was classified as a career offender at sentencing, resulting in a sentencing guidelines range of 37 to 46 months. Although his pre-sentencing prison-discipline record was bad, the judge sentenced him at the bottom of that range, 37 months. But the career-offender designation was error, so Nerius was resentenced. This time his guideline range was 30 to 37 months. And since his original sentencing his disciplinary record had been spotless. But this time the sentencing judge sentenced him to 36 months, near to top end of the guideline range and just one month less he’d gotten than when he was deemed a career offender.

On appeal, Nerius argued that his new sentence was presumptively vindictive — that the sentencing judge should be presumed to have punished him for winning his first appeal by going from a bottom-of-the-old-range sentence to an-almost-top-of-the-new-range sentence, when the only thing that had apparently changed since the first sentencing (besides the fact that he was no longer deemed a career offender) was that he’d been a model prisoner for the past two years.

Today, the Third Circuit rejected Nerius’s argument and affirmed his sentence. The panel said that no presumption of vindictiveness applies because the new sentence was shorter than the old one, period. The fact that the sentence went from the bottom of the guideline range to near the top, with no intervening bad acts, did not trigger the presumption.

If you believe that sentencing judges put much stock in guidelines ranges and career-offender designations, you’re more likely to think this ruling is unjust. If you don’t, well, you probably don’t. In that vein, it’s interesting that the panel consisted of two former district judges and one former magistrate judge.

Joining Shwartz was Smith and Hardiman. The case was decided without oral argument.

A divided panel applies civil rules strictly to dismiss an appeal as untimely

State National Insurance v. County of Camden — civil — dismissal — Fisher

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal because the appeal was untimely. It’s an interesting case both factually and legally.

The appeal was brought from dismissal of a legal malpractice suit. The legal malpractice suit, in turn, arose from a civil suit. A person injured in a car crash sued Camden County alleging negligent maintenance. The county had an insurance policy with a $10 million limit. The lawyer who represented the county allegedly told the insurance company (belatedly) that the case was meritless and she valued it at $50,000. But after a trial the jury awarded the victim $31 million, later remitted to $19 million. Four days later, the insurer sued the county and the attorney. (Actually, the former attorney — her Linkedin page states that she took “a very early retirement,” moved to another state, and became a realtor.)

Now here’s where things get tangled procedurally. The insurer’s original complaint against the lawyer — one of the 2 defendants — was dismissed in 2010. The insurer filed a motion to reconsider that ruling under Rule 59(e), and also a motion to certify an immediate appeal under Rule 54(b), both of which were denied. For the next four years, the insurer litigated its claims against the other defendant, the county. The district court eventually denied the insurer’s motion for summary judgment. The insurer believed that this denial undermined the basis for the earlier dismissal of the claims against the lawyer, so it sought to reinstate those claims under Rule 60(b)(6), and the court ordered briefing on the motion. While motion to reinstate the claims against the lawyer was pending, the insurer and the county settled the claims against the county, The joint stipulation of dismissal between the insurer and the county recited that the insurer wanted to renew its claims against the lawyer. The district court then denied the motion to reinstate the claims against the lawyer, and 15 days later the insurer filed a notice of appeal from the denial of the motion to reinstate the claims against the lawyer. FRAP 4 provides 30 days to file a notice of appeal after entry of judgment or the order appealed from.

The appeal turned on whether the insurer’s appeal involving its claims against the lawyer was timely, and the panel split. The majority (Fisher joined by Chagares) held that the appeal was untimely. Rule 60(b)(6) gives district courts authority to undo final judgments, it explained, and at the time when the insurer filed its 60(b)(6) motion the judgment was not final because the claims against the county remained pending. Thus Rule 60(b)(6) “was not a proper avenue by which to challenge” dismissal of the claims against the lawyer, and as a result the majority treated it as a nullity. And, while district courts also have inherent power to reconsider prior interlocutory orders, that power ends when the court loses jurisdiction, which the majority held happened when it entered a voluntary stipulation of dismissal of the claims against the county, even though no entry of judgment resulted from that. And because the 60(b)(6) motion was “not a proper Rule 60(b) motion,” the majority ruled that it could not toll the appeal-filing deadline under FRAP 4(a)(4)(A). The majority acknowledged that its ruling was “strict.”

Judge Jordan dissented, beginning:

The Majority acknowledges that its interpretation of the operative rules of procedure is “strict.” But the interpretation goes beyond strict: with all respect, it is wrong.

He reasoned:

As the Majority would have it, State National could only maintain its appeal rights by choosing between two bad alternatives: it could abandon its settlement of its separate claim against the County, or it could appeal the dismissal of the claims against Whiteside even as the District Court was actively reconsidering that dismissal. The federal rules of civil procedure and of appellate procedure are meant to permit the “just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, and to allow district courts to fully resolve all issues in the first instance so that appellate review is not “piecemeal,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). It would therefore be strange if the rules really did put State National in that bind.

In Jordan’s view, the insurer’s Rule 60 motion to reinstate the claims against the lawyer kept those claims open until the court ruled on the motion. He disagreed that the district court lost its power to reinstate the claims against the lawyer when the claims against the county were voluntarily dismissed, and also disagreed that the Rule 60(b) motion was a nullity because it was filed before the voluntary dismissal. In a footnote, he noted that the majority “are abolishing Rule 60(b) relief for parties in [the insurer’s] position” because any motion would be too early, too late, or, as here, both.

I’m betting the farm that the insurer will seek rehearing en banc, and rare though en banc rehearing is, I think such a motion has a realistic chance of being granted here. On first reading, I find the dissent’s analysis more persuasive. It’s one of the strongest Third Circuit dissents I’ve seen in recent years.

As noted, Fisher was joined by Chagares and Jordan dissented. Arguing counsel were Walter Andrews of Hunton & Williams for the insurer and Michael Canning and Matthew Fiorovanti of Giordano Halleran for the appellee.


New opinion — Court affirms plaintiffs’ win in overtime suit

Mazzarella v. Fast Rig Support — employment — affirmance — Shwartz

Two trucking companies hired drivers to haul water used for fracking. Although the drivers often worked more than 40 hours per week, the companies only paid them overtime above 45 hours per week. The drivers sued, alleging that the failure to pay them overtime for all hours over 40 per week violated the Fair Labor Standards Act. The companies argued that they were exempt from FSLA’s overtime rules per the Motor Carrier Act. The district court ruled that the companies failed to prove they met the MCA exemption. Today, the Third Circuit affirmed, noting that, while the defendants’ brief was filled with factual assertions, the record evidence they actually introduced was not enough to meet their burden.

Joining Shwartz were Smith and Hardiman. The case was decided without oral argument.


New opinion — a NEPA affirmance

Maiden Creek Assocs v. U.S. Dept. of Transp. — environmental — affirmance — Barry

The Third Circuit today affirmed an order dismissing a complaint brought under the National Environmental Policy Act and denying the plaintiffs’ motion to amend. The NEPA claim challenged some highway work that a developer and a township board believed would impede a planned shopping center.

Joining Barry were Fisher and Rendell. Arguing counsel were Marc Kaplin for the developer, Christopher Garrell for the township board, James Maysonett for the government, and Kenda Jo Gardner for the state department of transportation.

Bridgegate appeal panel announced

The Third Circuit has just updated its argument calendar to indicate that the panel for the Bridgegate appeal, North Jersey Media Group v. United States, will be Ambro, Jordan, and Scirica. (Sorry, media, no Barry.) The listing is here.The argument will be at 3 p.m. on June 6 in the Maris courtroom, and it will be the only argument the panel hears.

As I noted earlier today, the panel reportedly will decide whether the argument will be open to the public based on briefing on that question due today.

You still don’t have a constitutional right to own an M-16 machine gun

United States v. One Palmetto State Armory — Civil / Second Amendment — affirmance — Thompson

The Second Amendment does not give people the right to own machine guns, the Third Circuit held today. And would-be machine gun owners can’t dodge the federal law against machine-gun possession by just creating a trust to own it instead.

Joining Thompson D-NJ were Ambro and Krause. Arguing counsel were Stephen Stamboulieh for the would-be machine gun owner and Patrick Nemeroff for the government.


Bridgegate appeal update

Tim Darragh has an informative update on the Bridgegate appeal this morning at Darragh reports that the Third Circuit ordered the parties to file briefs today on whether the June 6 oral argument should be open to the public, and next week on whether the as-yet-unnamed appellant gets to stay anonymous. He also reports that the media parties last night filed a motion to reconsider challenging Judge Ambro’s stay blocking release of the names.

Third Circuit panel will hear argument on Bridgegate disclosure; media fixates on Barry’s role

The long-simmering Bridgegate scandal will make its way to the Third Circuit next month, when a panel of the court hears argument on whether to release the names of the unindicted co-conspirators, per an order reportedly signed today by Judge Ambro.

Much of the early media coverage on the order focuses on whether Judge Barry would recuse herself from the panel, given that Governor Christie is both a central figure in the Bridgegate scandal and a top supporter of Barry’s brother, presumptive Republican Presidential nominee Donald Trump. Here are links to stories by Gawker, Twitchy, and Politico.

UPDATE: and here’s another, by Philip Bump for the Washington Post, that begins, “A clear disclaimer at the top: There is a chance — an outside, unlikely chance — that this happens.”

Of course, the odds of Barry (or any other individual judge) being even assigned to any particular three-judge panel are fairly low, and if she chose to recuse she likely would be replaced without the public ever knowing.

But even if there ends up not being any Barry angle, I expect this to remain a high-profile case for the court.

Two new opinions

Fair Housing Rights Ctr v. Post Goldtex — housing –affirmance — Nygaard

Today, the Third Circuit answered this “somewhat abstruse” housing-law question: “do the design and accessibility requirements of the Fair Housing Act (FHA), 42 U.S.C. § 3604(f)(3)(C), apply to a commercial building that was originally constructed before the requirements’ effective date, but converted into residential units after that date?” HUD had answered the question in the negative, and, applying Chevron deference, the Third Circuit today agreed.

Joining Nygaard were Fuentes and Smith. The case was decided without argument.


MRL Development v. Whitecap Investment  — civil — affirmance — Fisher

The plaintiffs bought treated lumber for the deck of a vacation home, but the lumber didn’t last, and the plaintiffs sued. The district court ruled that the suit was time-barred and granted summary judgment. Today the Third Circuit affirmed, applying the gist-of-the-action doctrine (which bars tort claims that merely replicated contractual claims).

Joining Fisher were Krause and Roth. Arguing counsel were Thomas Wilkinson of Cozen O’Connor for the appellants and Alex Moskowitz, Andrew Kelly, and Robert Carlson for the appellees.

New opinion — Third Circuit reverses on civil-procedure error

In re: Asbestos Prods. Liability — civil — reversal — Hardiman

A railroad worker was exposed to asbestos used for insulation on railcars. He contracted asbestosis and mesothelioma and sued the railcar manufacturers under state law. The defendants argued that the state-law claims were pre-empted, and the district court agreed and dismissed the suit. Today the Third Circuit reversed, holding that the district erred procedurally by dismissing based on facts that were not pled in the complaint. The court acknowledged that the district court could treat the motion as one for summary judgment instead of dismissal, but held that summary judgment was not appropriate here either because the defendants did not provide evidentiary support for the district court’s factual finding, or, at a minimum, there was a factual dispute and the court had to draw inferences in the non-movant’s favor.

Joining Hardiman were Ambro and Nygaard. Arguing counsel were John Roven of Houston for the appellant (joined on the brief by Howard Bashman ) and Holli Pryer-Baze of Akin Gump and Joseph Richotte for the appellees.

New opinion — a bankruptcy affirmance

In re: Net Pay Solutions — bankruptcy — affirmance — Hardiman

The Third Circuit today upheld a district court’s rulings in a bankruptcy case denying the debtor’s motions to avoid five preferential transfers. The debtor made five tax payments for its clients the day before it went out of business, and it sought to recover the funds in bankruptcy, but the court held that four were minimal as to each creditor and the fifth did not involve the debtor’s property because it was only held in trust.

Joining Hardiman was Smith; Sloviter had been on the panel before she assumed inactive status. Arguing counsel were Markian Slobodian as debtor’s trustee and Ivan Dale for the government.

New opinion — ‘interesting tax-accounting appeal’ is not an oxymoron, apparently

Giant Eagle v. Commissioner — tax — reversal — Roth

A supermarket offered its customers a discount on gas purchases: for every $50 spent on groceries, they got 10 cents off a future gas purchase. Naturally, at the end of the tax year, there were customers who had earned a gas discount but had not yet redeemed it. In its taxes, the supermarket claimed those earned-but-not-yet-redeemed discounts as deductions, reducing the total amount outstanding by past redemption rates. The IRS and the tax court disallowed the deductions, but today a divided Third Circuit reversed, ruling in the supermarket’s favor.

Joining Roth was Fisher; Hardiman dissented. Both opinions are excellent. Arguing counsel were Robert Barnes of Marcus & Shapira for the supermarket and Julie Avetta (who had quite a wedding announcement) for the government.

New opinions — two civil affirmances

Eisai, Inc. v. Sanofi Aventis — civil — affirmance — Roth

The Third Circuit today affirmed summary judgment in favor of the defendant in an antitrust case. Pharma giant Sanofi used various marketing strategies to sell its anticoagulant drug Lovenox. The court ruled that these strategies may have harmed Sanofi’s competitors, but the competitors did not show they cause broad harm to the competitive nature of the anticoagulant market.

Joining Roth were Ambro and Fuentes. Arguing counsel were Jay Fastow of Ballard Spahr for the appellant and George Cary of Cleary Gottlieb for the appellees.


Davis v. City of Philadelphia — civil / tax — affirmance — Hardiman

The Third Circuit today held that federal protections limiting penalties for late property-tax payments for active-duty servicemembers do not apply to taxes owed by a corporation solely owned by the servicemember. The city was represented on appeal by private counsel, apparently not an appellate specialist, and in a footnote the court rejected the city’s “odd suggestion” about the applicable standard of review. The court also rejected the parties’ view that the key issue in the case was standing.

Joining Hardiman were McKee and Smith. The case was decided without argument.

New opinion — a Fourth Amendment reversal

U.S. v. Vasquez-Algarin — criminal / Fourth Am. — reversal — Krause

The Third Circuit today decided an interesting and important search and seizure case today, holding that officers entering a dwelling to arrest someone must at least have probable cause to believe the person is there. The opinion ably explains matters:

Law enforcement officers need both an arrest warrant and a search warrant to apprehend a suspect at what they know to be a third party’s home. If the suspect resides at the address in question, however, officers need only an arrest warrant and a “reason to believe” that the individual is present at the time of their entry. This case sits between these two rules and calls on us to decide their critical point of inflection: how certain must officers be that a suspect resides at and is present at a particular address before forcing entry into a private dwelling?

* * *

We conclude that to satisfy the reasonable belief standard law enforcement required, but lacked, probable cause. The officers’ entry was therefore unconstitutional and, because the good-faith exception to the exclusionary rule is inapplicable here, the evidence seized from Vasquez-Algarin’s apartment should have been suppressed.

The court joined four other circuits in interpreting reasonable belief as at least functionally equal to probable cause, splitting sharply with the D.C. Circuit and less sharply with two others.

Joining Krause were Fuentes and Roth. Arguing counsel were Frederick Ulrich of the MDPA Federal Public Defender for the defendant and Daryl Bloom for the government.

New opinion — persistent police get valid consent to enter

United States v. Murray — criminal — affirmance — Barry

When police knocked on the door of a motel room, a woman inside said she was busy and to go away. A different officer knocked, and the woman again said she was busy. So the officer said he was a police officer and “asked her to open the door,” and he knocked on the window and showed his badge through the window. The woman then opened the door and let the police into the room, where they found evidence used to incriminate the defendant. The district court held that the officers’ entry into the motel room was lawful due to the woman’s voluntary, uncoerced consent. Today, noting the woman’s later testimony that she had been glad the police came and wanted to open the door, the Third Circuit affirmed.

Joining Barry were Fisher and Rendell. The case was decided without oral argument.

Third Circuit reversed in free-speech case

This morning the Supreme Court issued Heffernan v. City of Paterson, reversing by a 6-2 vote the Third Circuit, holding:

When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

Here, police officer Heffernan was fired after he was seen getting a political candidate’s yard sign. In reality he picked up the sign for his mother, but he was fired based on the mistaken view that he was supporting that candidate himself. In a decision I described at the time as “wacky” and a head-scratcher, the Third Circuit had affirmed summary judgment against Heffernan, without oral argument, on the theory that he was not actually exercising his First Amendment rights.

The Supreme Court remanded for further proceedings on whether the employers acted pursuant to a neutral policy.

New opinion — Third Circuit upholds NLRB rulings against challenge based on NLRB recess appointments

Advanced Disposal Svcs East v. NLRB — agency/labor — affirmance — Smith

The Supreme Court held in Noel Canning that the National Labor Relations Board lacked a quorum in 2012 and 2013 because the recess appointments of three of its members were invalid. The case decided today by the Third Circuit involved NLRB actions that were initially invalid but later were ratified by the then-properly-constituted board. The court held that the ratification sufficed to support the board’s actions, and on the merits held that the board’s ruling was supported by substantial evidence. On a preliminary issue — whether the employer forfeit its challenge to NLRB authority by failing to raise the issue before the board — the Third Circuit expressly deepened a circuit split, joining the D.C. Circuit against the Eighth Circuit. I doubt we’ve heard the last of this case.

Joining Smith was Hardiman; Sloviter also was on the panel when it heard argument but assumed inactive status before the opinion issued. Arguing counsel were Daniel Barker for the employer and Kellie Isbell for the NLRB.


New opinions — a rare criminal reversal and a bankruptcy reversal

US v. Lopez — criminal — reversal — Vanaskie

Criminal defendants don’t win too many Third Circuit appeals, especially by published opinion and most especially under plain-error review. But it happened today. The court vacated Victor Lopez’s conviction for being a felon in possession of a firearm, holding that the prosecution violated Doyle v. Ohio by impeaching Lopez with his post-Miranda silence and ordering a new trial despite trial counsel’s failure to object to the error. The court ruled that the error affected the outcome because the error impacted Lopez’s credibility and the case hinged on credibility.

In a footnote, the court lamented that the Doyle error was “particularly egregious” because such errors “unfortunately resurface[] too often, threatening to undermine the integrity of proceedings in our courts.” After reiterating that it remained troubled by the recurring violations, the court “commend[ed] Assistant United States Attorney Steven G. Sanders for his forthright acknowledgment of the Doyle error during oral argument,” noting, “He was a model of professionalism in apologizing for the error at trial and vowing to take steps to avoid having this type of error recur.” Audio of the oral argument is here.

For criminal defense counsel, three prejudice points bear noting:

  1. The whole record matters. In finding that the error affected the outcome, the court didn’t just look at the testimony, it also looked at how the prosecutor argued that testimony at closing and at the questions jurors asked during deliberations.
  2. The fact that the credibility contest was between a defendant and police officers did not prevent the court from finding a reasonable probability that the error affected the outcome. Nor did the fact that the dispute was over whether the cops framed the defendant. In other words, the court recognized a reasonable probability that, without the improper impeachment, the jury would have believed that the defendant was telling the truth that the cops framed him, and that two police officers were lying when they said they found the gun on him.
  3. The court rejected the government’s argument that the Doyle error did not make a difference because the jury also had valid reasons to disbelieve the defendant (he had prior felony convictions and gave a false name when arrested).

Joining Vanaskie were McKee and Jordan. Arguing counsel were Steven Sanders for the government and my former colleague Maria Pulzetti of the EDPA Federal Community Defender for Lopez.


In re: World Imports — bankruptcy — reversal — Jordan

The Third Circuit today reversed a district court ruling in a bankruptcy case, holding that contractual modifications to a creditor’s maritime liens were enforceable on goods in the creditor’s possession.

Joining Jordan were McKee and Vanaskie. Arguing counsel were Brendan Collins for the creditor and David Braverman for the debtor.

New opinion — Third Circuit decides a major preemption case

Sikkelee v. Precision Airmotive — civil — reversal — Krause

The Third Circuit today held that federal aviation-safety law does not preempt state-law products-liability claims, reversing on interlocutory review a district court grant of summary judgment. The appeal arose from a fatal Cessna plane crash in 2005; the pilot’s wife alleged that the crash was caused by faulty design of the plane’s carburetor.

The opinion features a thorough and thoughtful discussion of preemption, “a necessary but precarious component of our system of federalism.” (On this point the opinion cites a 1995 Kennedy concurrence, notable because Krause clerked for Kennedy in 1994-95.) The court rejected an expansive interpretation of prior landmark preemption case, Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. 1999), holding that Abdullah does not govern products-liability claims. It then proceeded to a close analysis and Congressional intent and relevant precedent.

Joining Krause were Chagares and Van Antwerpen. The high-powered arguing counsel were Teijinder Singh of Goldstein & Russell for the appellant and Kannon Shanmugam of Williams & Connolly for the appellees.


New opinion — Third Circuit upholds NFL concussion-suit settlement

In re: NFL Players Concussion Injury Litig. — class action — affirmance — Ambro

The Third Circuit today affirmed approval of a $1 billion settlement in a suit brought by former pro football players against the NFL for failure to inform of risks, and protect them from injuries, arising from concussions. The court rejected objections to both class certification and the settlement terms.

Early coverage by Ken Belson in New York Times here and Jeremy Roebuck on here.

Joining Ambro were Hardiman and Nygaard. The superstar-studded cast of arguing counsel were Samuel Issacharoff and Paul Clement for appellees, and Howard Bashman, Deepak Gupta, Charles Becker, Cullin O’Brien, and Steven Molo for the appellant objectors. Audio of the almost-two-hour-long argument is here.

New opinion — Court affirms denial of habeas corpus relief

Dellavecchia v. Secretary PA DOC — habeas corpus — affirmance — Greenberg

After being arrested for murdering a man, James Dellavecchia smashed his head into the bars of his cell and was taken to the hospital. Dellavecchia was arraigned in his hospital bed and, while the arraigning police officer was there and without counsel, Dellavecchia made various admissions that the prosecution later used against him at trial. The state court found that admission of the defendant’s statements did not violate the Sixth Amendment because the statements were spontaneous and unsolicited. The district court denied Dellavecchia’s habeas petition, and today the Third Circuit affirmed, holding that the state-court ruling was not an unreasonable application of Supreme Court holdings and that, even if there were error, it would be harmless because the prosecution’s case was overwhelming.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument.


New opinion — two-judge panel affirms in civil appeal

Havens v. Mobex Network Svcs — civil / telecommunications — affirmance — Roth

The Third Circuit today affirmed district court rulings for the defense in a dispute over maritime telecommunications licenses. The court upheld dismissal of the plaintiffs’ claims under the Federal Communications Act and entry of judgment on their Sherman Act claim.

Joining Roth was Fuentes; Sloviter had been on the panel and heard oral argument but assumed inactive status before the opinion issued and so the opinion was filed by panel quorum. Arguing counsel were Stephen Hudspeth for the appellants and Robert Mauriello Jr. for the appellees.

New opinion — Third Circuit finds serious misconduct by prosecution, but affirms due to overwhelming evidence

Gov’t of the V.I. v. Mills — criminal — affirmance — Krause

The Third Circuit today issued a major opinion on prosecutorial misconduct, holding that the prosecution committed severe and pervasive misconduct but that the defendant was not entitled to a new trial because the evidence against him was overwhelming, his defense was implausible, and the court gave effective curative instructions. The Third Circuit found three types of misconduct: urging jurors to convict Mills to protect themselves, urging jurors to convict based on bad conduct not relevant to the charged crimes, and displaying a photo of the victim’s corpse during closing argument to evoke sympathy.

Joining Krause were Fisher and Roth. (Notably, both Krause and Fisher were prosecutors before joining the court.) Arguing counsel were Su-Layne Walker for the government and Joseph DiRuzzo III for the defendant.

New opinion — Third Circuit recognizes Supreme Court overruling on settlement-offer mootness

Weitzner v. Sanofi Pasteur — civil / class action — affirmance — Scirica

Today the Third Circuit held that an unaccepted offer of judgment, filed prior to a plaintiff’s class certification motion, does not moot a plaintiff’s entire action. The court applied the recent Supreme Court ruling in Campbell-Ewald Co. v. Gomez, which the court recognized overruled its prior contrary holding in Weiss that an offer of complete relief generally moots the plaintiff’s claim. The court stated, “Beyond this, we decline to elaborate on the implications of Campbell-Ewald on our other holdings in Weiss.”

Joining Scirica were Shwartz and Roth. Arguing counsel were Carl Greco for the defendants and Todd Bank for the class plaintiffs.

New opinion — partial reversal in an arbitration appeal

Hamilton Park v. 1199 SEIU — civil / arbitration — partial reversal — Ambro

The Third Circuit today affirmed in part and reversed in part in an appeal arising from an arbitration. The opening of the opinion aptly lays out the basics:

Hamilton Park Health Care Center filed a petition to vacate an arbitration award in a dispute with the 1199 SEIU United Healthcare Workers East union. The District Court denied the petition and confirmed the award. On appeal, Hamilton Park asserts that the Court erred by approving a multi-year arbitration award when the parties’ collective bargaining agreement (“CBA”) only contemplated a single-year award. Because the parties consented at arbitration to a multi-year award, we affirm this portion of the Court’s order.

Hamilton Park also argues that, even if a multi-year award is permissible, the Court should have severed a provision authorizing a new round of arbitration at a later date. We agree; thus we reverse and remand as to this portion of the order.

The conclusion clarifies the basis for reversal:

Our deference to an arbitrator’s award does not include the rubber stamping of a self-perpetuating arbitration provision that the parties did not agree to include. We therefore reverse the portion of the District Court’s order approving the inclusion of a new arbitration provision for disputes arising for the year starting June 30, 2015. We remand the case with instructions for the Court to void only the portion of the award providing for that arbitration. We affirm the Court’s order in all other respects.

(Citation and footnote omitted).

Joining Ambro were Jordan and Scirica. The case was decided without oral argument.

Today’s opinion was the court’s first published opinion since March 11.

A GVR and a capital-case cert denial for Third Circuit today

This morning’s U.S. Supreme Court order list included two Third Circuit cases of note.

First, the Court granted certiorari, vacated the judgment, and remanded in light of Johnson v. U.S. in Moon v. U.S., a criminal appeal the Third Circuit decided in a 2015 non-precedential opinion. Moon was represented by Philadelphia assistant federal defender Brett Sweitzer.

Second, the Court denied certiorari in Saranchak v. Wetzel, a capital habeas corpus appeal. The Third Circuit granted penalty-phase relief in 2015 while affirming the conviction, and Saranchak had sought cert presumably on the guilt-phase ruling.

The Court granted cert in one case to review a First Circuit case involving acquittals and Double Jeopardy (QP #1 on Scotusblog).

A glimmer of hope for litigant asking Supreme Court to review a Third Circuit ruling I called questionable

Last week the Supreme Court asked the Solicitor General to file a response to a certiorari petition challenging a controversial 2015 Third Circuit decision. Third Circuit, I love you, but I’m rooting for reversal.

Last August, the Third Circuit rejected Cosmo Fazio’s appeal challenging his guilty plea. I sounded off here, to wit:

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.

It bugged me so much that I went hunting online, and what I found bugged me some more:

Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.

Fazio’s motion for en banc rehearing (joined by an amicus) was denied, and he filed a Supreme Court petition for certiorari last month. Counsel of record remains Mark Goldstein. The government waived response, but last week the court requested one, due April 14. (The Supreme Court docket page is here.)

The call for response is encouraging, but statistically speaking a cert grant remains a longshot. A 2009 law review article reported that calls for response up the odds of granting cert from less than 1% to 8.6%.

Stay tuned.

UPDATE:  I just noticed that Third Circuit nominee Rebecca Ross Haywood was listed as one of the two lawyers representing the government in Fazio in the Third Circuit. (Michael Ivory was the AUSA who did the oral argument.) [UPDATE TO UPDATE: The opinion caption listed Haywood among counsel, but her name does not appear on the government’s brief.]

UPDATE 2: According to his linkedin page, the plea lawyer ended his practice in 2011 and now is a facilities engineer for a charity in Colorado. The PA Disciplinary Board website lists his status as suspended.

Third Circuit asked to decide scope of citizens’ right to film police [updated]

Today on Jason Nark has a story entitled, “ACLU challenges ruling on right to film police,” which begins:

Civil rights lawyers on Monday appealed a federal court ruling in Philadelphia establishing that citizens do not necessarily have a constitutionally protected right to record police activity.

 The American Civil Liberties Union of Pennsylvania and local civil rights lawyers filed an appeal with the U.S. Court of Appeals for the Third Circuit on behalf of two Philadelphia residents, one arrested and the other detained, for taking photographs and video of police incidents in the city.

Last month, U.S. District Judge Mark A. Kearney ruled that unless a videographer announces the recording as an act of protest or a challenge to police, officers may stop the recording.

Prior news coverage of the case is here. Sharply critical commentary of the district court ruling in the Washington Post is here. Eugene Volokh criticized the ruling and predicted it will be reversed on appeal on Volokh Conspiracy here. The ACLU discusses the appeal here.

UPDATE: ACLU-PA staff attorney Molly Tack-Hooper yesterday posted this explanation of the case and the underlying issue on the ACLU blog Speaking Freely, entitled, “No, It’s Not Illegal to Record the Philadelphia Police! — Fields/Geraci Ruling Explained.”

New opinion — a petitioner win in an immigration appeal [updated]

Orozco-Velasquez v. Attorney General — immigration — remand — Roth

The Third Circuit issued a late-in the day opinion granting an immigration petition for review and remanding with instructions for the immigration court to consider the petitioner’s application for cancellation of removal. The appeal turned on interpretation of the Immigration and Nationality Act’s “stop-time” rule, and the court expressly disagreed with other circuits’ interpretation of the rule.

Joining Roth were McKee and Ambro. Arguing counsel were Amanda Johnson of Dechert for appointed amicus petitioner (the petitioner was pro se) and Robert Tennyson Jr. for the government. The opinion expressed appreciation to Stuart Steinberg and former Van Antwerpen clerk Ryan Moore of Dechert for undertaking the amicus curiae assignment pro bono, and noted that law student Johnson argued “adeptly.” It was issued a year and a week after the oral argument.

UPDATE: Amanda Johnson argued the case as third-year law student participating in Penn Law’s federal appellate litigation externship, supervised by Professor Louis Rulli as well as counsel at Dechert. Here is a Penn Law news release with background on the case.

New opinions — an extraordinary debt case and a jurisdictional dismissal

Goldenstein v. Repossessors Inc — civil — partial reversal — Krause

Oh, what a story. (The facts are taken from the opinion.)

A guy borrowed $1000 from a lender, offering his car as collateral. The interest rate on this loan was 250 percent. The lender wired the money into the guy’s account, and then the lender started withdrawing $208 each month. After two months the guy took the money out of the account because he didn’t realize it was the lender making those withdrawals. The next month, when the lender couldn’t withdraw the third payment, it promptly contracted to repossess the guy’s car. Then — the lender having already collected $415 in monthly installments and $50 as a transfer fee — the repossessor told the guy that to get his car back — this is just a few months after the guy took out the $1000 loan — he had to sign a release, pay a $250 repossession fee, and pay $2143 to satisfy the loan.

Which he did. Then he sued, under RICO, the FDCPA, and state law. Eye poppingly, the district court granted summary judgment, on all claims, against the guy.

Today, the Third Circuit affirmed as to one claim — upholding denial of the FDCPA claim because the defendants had a right to possess the car even if the underlying loan was illegally usurious — but reversed on everything else. The court emphatically rejected the district court’s view that RICO’s prohibition against collecting unlawful debt did not apply to seizing collateral. And the court reversed the summary judgment on the state law claims after offering this withering observation:

The District Court granted summary judgment against Goldenstein on his PFCEUA and UCC claims without addressing the substance of the PFCEUA claim, without even mentioning the UCC claim, and despite the fact that Appellees did not argue those claims in their motion for summary judgment.


Joining Krause were Greenaway and Greenberg. Arguing counsel were Robert Salvin for the guy and Neal Thakkar for the appellees.

S.B. v. KIndercare Learning — civil — jurisdictional dismissal — Sloviter

After a child was allegedly injured at a daycare center, her mother sued in state court. The daycare removed the case to federal court. The plaintiffs retained a new lawyer, who sought to voluntarily dismiss without prejudice because the child (age 4) was too young to explain her injury. The district court granted dismissal but ordered the plaintiffs to pay the daycare’s attorney fees and refile within 4 years (extendable for good cause). The plaintiffs appealed. and today the Third Circuit held that the voluntary dismissal without prejudice here was not an appealable final order. The court left open the possibility that a litigant could appeal the attorney fees once their amount had been set, and that a litigant could appeal the conditions in an appeal from a later dismissal with prejudice for failing to comply.

Joining Sloviter were Smith and Hardiman. The case was decided without argument.



New opinion — Third Circuit finds error and criticizes the prosecution, but affirms

UPDATE: the Supreme Court vacated this opinion, and on remand the Third Circuit ordered resentencing, link here.

U.S. v. Steiner — criminal — affirmance — Fuentes

The Third Circuit today held that (1) admission of a defendant’s arrest on an unrelated offense was error but the error was harmless, and (2) the district court did not erro when it refused to instruct the jury that, in order to convict the defendant of possessing various ammunition, it must be unanimous as to each type of ammunition.

With respect to the improper admission of the unrelated arrest, the court emphasized that the trial prosecutor (who is not identified in the opinion) “played a central role,” adding “we are deeply troubled by the prosecutor’s statement at trial and “admonish[ing] the government to take greater care in its representations to the trial court and not brandish Rule 404(b) so cavalierly.”

Joining Fuentes were Jordan and Vanaskie. Arguing counsel were Renee Pietropaolo for the defendant and Jane Dattilo for the government.

Two new opinions, with a rare Third Circuit benchslap

Mammaro v. NJ Division of Child Protection — civil rights — reversal — Ambro

New Jersey child services took away a mother’s one-and-a-half-year-old child for “a few days” because the mother twice tested positive for marijuana and moved out of approved housing. After the mother got her infant back, she filed a civil rights suit against child services and the caseworkers involved. The district court dismissed the suit against child services but refused to dismiss a substantive due process claim against the caseworkers. The caseworkers appealed, and today the Third Circuit reversed, holding that the caseworkers were protected by qualified immunity. The court assumed a consensus of persuasive authority that temporary removal of a child could violate due process, but found no consensus that removing the infant was an “unconstitutional interference with the parent-child relationship” because no prior case so held.

Practitioners should take special note of a footnote in the opinion, inserted apparently at Chief Judge McKee’s request:

A hair follicle test [of the mother] in November 2011 showed a very small amount of marijuana and cocaine, but the amount found was too low to meet the standard for a positive test.

Although Chief Judge McKee joins this opinion in its entirety, he notes his concern with the misleading nature of the Division’s brief on this point. The brief stated that Mammaro “submitted to a hair follicle drug test, which was positive for cocaine and marijuana.” However, at oral argument, after counsel for Mammaro represented that she never tested positive for cocaine, the Division’s counsel (who was involved in drafting the brief) was given an opportunity to clarify whether the hair follicle test for cocaine was positive, as represented in the brief, or negative. Counsel first responded that the result was “inconclusive,” but then
conceded that Mammaro’s hair follicle analysis was “negative” for cocaine.

* * * given the thresholds employed by the lab and the Division’s own guidelines, Mammaro’s test results were negative.

Chief Judge McKee believes that it is (at best) unfortunate and (at most) disingenuous and intentionally misleading for the Division to have stated, without qualification or explanation, that Mammaro was using cocaine. The failure to explain or qualify such an assertion is particularly egregious here where the focus of our inquiry is the reasonableness of the challenged interference with Mammaro’s custody of her child, and the alleged bad faith of the Division. Moreover, the misstatement in the brief should not be minimized merely because the removal of Mammaro’s child preceded the disputed cocaine analysis. By its own statement, the Division provided the misleading lab results for “background information.” Since the information was, by the Division’s own admission, irrelevant to its decision to interfere with
Mammaro’s parental rights, Chief Judge McKee is concerned that it may have been offered in an attempt to “poison the [analytical] well.”

Not how any appellate attorney wants to be remembered in a published circuit opinion.

Joining Ambro were McKee and Hardiman. Arguing counsel were Michael Walters of the state attorney general for the child services defendants and Kenneth Rosellini for the mother.

Cunningham v. M&T Bank — civil — affirmance — Ambro

The Third Circuit upheld a district court’s ruling that a class-action lawsuit was barred by the statute of limitations and not subject to equitable tolling based on any fraudulent concealment.

Joining Ambro were McKee and Scirica. The case was decided without argument.

New opinion — partial dismissal in insurance-coverage appeal

Ramara Inc. v. Westfield Insurance — civil / insurance — dismissal in part — Greenberg

The Third Circuit held that a district court’s order that an insurer must defend a suit was immediately appealable, and applied Pennsylvania law to affirm the district court’s order.

Joining Greenberg were Fuentes and Chagares. The case was decided without argument.

NCAA en banc argument: only little surprises

I had the pleasure of attending this morning’s en banc oral argument in NCAA v. Governor of NJ. The ceremonial courtroom was packed, and even two of the judges who had recused were in the audience. Circuit advocacy (and circuit judging) is not often a big-crowds gig, so it was an entertaining spectacle.

Judge Ambro (presiding due to Chief Judge McKee’s recusal) opened with a heartfelt tribute to Justice Scalia, saying it was “so true” that he was “transformative” and describing him as “perhaps the greatest influential jurist of my generation.”

Here are a few things that surprised me:

  • Judge Barry missed participating by video feed due to technical difficulties, but at the last minute she was able to join in by audio;
  • Theodore Olson appeared to be reading his opening, word for word. Not just the opening sentence, but the whole first minute or two. (And later he declined to answer a judge’s direct question about what the recent troubles of daily-fantasy-sports betting meant for his position, saying he didn’t want to get into that.)
  • Paul Clement, who gave a virtuoso argument, leaned pretty heavily on legislative history. Heresy!

On a more substantive note, I was surprised that some of the court’s more conservative judges were the source of some of Olson’s toughest questions. I figured the court’s right was New Jersey’s best hope for getting towards the seven votes it needed to win, since a vote for New Jersey could be seen as a vote for state power and for business. But Judge Fisher was plainly dubious of Olson’s position, and Judges Hardiman and Jordan peppered him with tough questions, too.

But for all the little surprises, the bottom-line sense I got from today’s argument was not surprising. I came in doubting that New Jersey could find seven votes, and nothing that transpired during the argument reduced my doubt. We won’t know the result until the opinion(s) are issued, but Clement, the sports leagues, and the government have to feel pretty good about today.

A few thoughts on Wednesday’s two en banc arguments

The Third Circuit will be hearing en banc oral argument in two cases on Wednesday: NCAA v. Governor (the sports betting case pitting Paul Clement against Ted Olson), and Chavez v. Dole Food (a civil-jurisdiction issue arising in the context of a suit by plantation workers alleging knowing exposure to toxic pesticides).

A couple interesting facts:

  • The first argument is at 9:30 in the Maris courtroom on the 19th floor, but the second argument at 11 a.m. is in the ceremonial courtroom on the 1st floor. Why the big move between arguments? Beats me.
  • Recently confirmed Judge Restrepo will sit for both cases, as expected.
  • Both cases had panel dissents by Judge Fuentes. Tangle with the pride of Toms River at your peril!

Anyway, the sports-betting case in particular is getting a lot more media attention than the typical Third Circuit appeal. I was even interviewed today by a reporter for ESPN, certainly a first for me. [Update: here’s the ESPN story quoting me.]

One of the questions I was asked today was how often en banc rehearing results in a different outcome from the original panel ruling. (Of course not all Third Circuit en banc cases involve any prior panel ruling, as I’ve discussed here. But the last six CA3 en banc grants have.)

Since Chief Judge McKee became chief, the Third Circuit has decided eight en banc cases in which a panel had issued an opinion. (There was a panel opinion in all four pending en banc cases, too.) Of those eight, the en banc opinion came out the same way as the panel opinion twice (25%); the en banc court effectively reversed the prior panel six times (75%). So that’s a small sample size, but it’s some evidence for the not-surprising conclusion that en banc rehearing en banc is bad news for the panel winner.

NCAA is a case where the panel dissenter was an active judge (Fuentes) and the panel majority judges (Rendell, Barry) are both now senior. (And in Chavez the panel dissenter was active (Fuentes) and the panel author (Nygaard) was senior.) That made me wonder whether active judges fare better in Third Circuit en banc cases. Is it common for active-judge dissenters to become en banc authors and senior-judge panel authors to become en banc dissenters?

Short answer: not really. Of the eight prior-panel cases, only one (Singer Management) fit that pattern, and in fact there were three (Lewis, Katzin, and Flores-Mejia) where the opposite happened. So active-vs-senior hasn’t mattered much in recent Third Circuit en banc case outcomes.

I’m looking forward to Wednesday’s arguments. If my schedule lets me attend in person, I hope to meet some readers and fellow Third Circuit lawyers.

New opinion — illegal to fire employee who complained about executive’s giant salary

MCPc v. NLRB — labor — vacate in part and remand — Krause

A company employee named Galanter was having lunch with a few co-workers, and they discussed how shorthanded and busy they were. Galanter commented that the company could have hired several workers with the $400,000 a year it was paying a new executive. Galanter was canned 8 days later; the company alleged that Galanter lied when confronted about the disclosure. NLRB counsel issued a complaint alleging that the company illegally fired Galanter for complaining about working conditions. The NLRB ruled for the employee and the company appealed.

Today, the Third Circuit reversed in part. It ruled that the employee’s lunchtime disclosure was protected activity as concerted conduct, but remanded for reconsideration of whether that protected activity was the reason for the firing. The opinion is a tour de force.

Joining Krause were Fuentes and Fisher. Arguing counsel were Dean Falavolito of Margolis Edelstein for the employer and Gregory Lauro for the NLRB.

Recent Third Circuit Clerk: “Nudging Courts to Issue Decisions Can Pay Off”

You may recall the Third Circuit recent case where top appellate lawyer Roy Englert wrote to the Third Circuit urging them to issue a ruling a pending case. I wrote about the letter here (“sending the court a post-argument hurry-up letter strikes me as a risky move”) and the opinion here.

Albert Lichy has just written this piece in Daily Business Review, headlined, “Nudging Courts to Issue Decisions Can Pay Off.” Lichy was a 2014-15 clerk for Judge Ambro, so his insight is worth paying attention to.

Lichy writes that “the blink response” is that a lawyer can’t tell a judge to pick up the pace, but that the recent case shows how they can:

Is there a lesson to learn? I think so. The first is not to be afraid to nudge a court to action. If it’s been months since your case was argued and the court’s delay is causing serious damage to your client’s business, make the court aware. Or if a substantial amount of time has passed since oral argument and your appeal involved a straightforward issue, send a subtle reminder to the court—cases do fall through the cracks. (Just last August the Seventh Circuit apologized to the parties in one case on remand from the U.S. Supreme Court for putting their papers “in the wrong stack and forgetting” about them.)

If all else fails, take a page from the Taj’s playbook and get a popular blog to discuss your case. It’s no secret judges and law clerks use blogs as a news source. As in any context, however, a little tact goes a long way.

Certainly worth a read.

New opinion — divided Third Circuit panel upholds black lung statute-of-limitations ruling

Eighty Four Mining v. Director, Office of Workers’ Compensation Progs. — agency — affirmance — Vanaskie

After a board of the Labor Department awarded black lung benefits to a coal miner, the mining company argued that miner’s claim was untimely because a state board’s denial of state benefits should not restart the federal clock. The Third Circuit today disagreed with the company, denied the petition for review, and affirmed.

Joining Vanaskie was Rendell; Nygaard dissented. Arguing counsel were Norman Coliane of Thompson Calkins for the mining company, Heath Long of Pawlowski Bilonick for the miner, and Helen Cox for the government.

“Regardless of whether removing the President, ordering a census, and reapportioning Congressional districts are within our jurisdiction, Petitioner has not shown a clear and indisputable right to such drastic relief.”

The sentence that forms the headline of this post is from yesterday’s non-precedential Third Circuit opinion in In re: Natural Born Citizen Party National Committee. Normally I don’t post about unpublished opinions, but it’s Friday and I’m making an exception.

The court rejected a “difficult to understand” mandamus petition from a fringe political party (website highlight: “Become a Pre-1933 USA Citizen agent of the Public US Citizen Debtor Trust Transmitting Utility ‘Non-taxpayer’ for a fee of $1500”) and one of its two declared candidates for U.S. president (there are 1,544 registered presidential candidates this year, including Porcupines R. Spikey, Jr.). The mandamus petition evidently sought a stay of the 2016 election, appointment of special masters to conduct a census, and reapportionment of Congressional districts.

The court warned said candidate — re-warned, actually, since this wasn’t the first such mandamus petition he filed — that “frivolous and vexatious litigation may lead to sanctions.”

New opinions — qui tam and Sarbanes-Oxley

United States ex rel. Moore & Co. v. Majestic Blue Fisheries — qui tam — reversal — Rendell

The False Claims Act enables someone to sue someone else for defrauding the government — FCA suits are commonly called qui tam suits. (For example, there’s a big qui tam suit against disgraced cyclist Lance Armstrong related to his doping while sponsored by the US Postal Service.) This case involves a law firm that brought a qui tam suit alleging that foreign nationals fraudulently obtained fishing licenses reserved for citizens. The district court granted summary judgment for the defendants, but today the Third Circuit reversed. The main issue was whether the law firm’s suit survived the FCA’s public disclosure bar, and the court held that it did because it alleged information that was independent of and materially added to publicly disclosed information about the alleged fraud.

Joining Rendell were Vanaskie and Nygaard. Arguing counsel were Clay Naughton for the law firm and Robert Salcido of Akin Gump for the appellees.


Wiest v. Tyco Electronics Corp. — civil — affirmance — Greenberg

The Third Circuit today affirmed a district court’s ruling granting summary judgment against a former employee in an action for retaliation brought under the Sarbanes-Oxley Act.

Joining Greenberg were Fuentes and Chagares. The case was decided without oral argument.

New opinion — Third Circuit lacks mandamus jurisdiction in patent cases

In re: Dr. Lakshmi Arunachalam — patent / mandamus — dismissal — per curiam

The Federal Circuit has exclusive jurisdiction over appeals in patent infringement actions. Today, the Third Circuit held that the Federal Circuit also has exclusive jurisdiction over mandamus petitions arising from such actions. Accordingly, the court dismissed for lack of jurisdiction the mandamus petition of a pro se litigant who claimed that the district court should have recused due to a financial interest in the case, and the court directed the clerk to transfer it to the Federal Circuit.

The panel was Fisher, Jordan, and Vanaskie. The case was decided without argument.

New opinion — a legal error in arbitration is insufficient to upset its result

Whitehead v. Pullman Group — civil / arbitration — affirmance — Fuentes

How’s this for a lucid opening paragraph?

Singer-songwriters John Whitehead and Gene McFadden were “an integral part of the Philadelphia music
scene in the 1970s.” In 2002, appellant David Pullman
approached Whitehead and McFadden about purchasing their
song catalogue. The parties signed a contract but never
finalized the sale. Whitehead and McFadden passed away in
2004 and 2006, respectively, and Pullman became embroiled
in a series of disputes with their estates over ownership of the
song catalogue. The parties eventually agreed to arbitration.
Pullman, unhappy with the arbitral panel’s ruling, moved in
the District Court to vacate the arbitration award on the
ground that the panel had committed legal errors that made it
impossible for him to present a winning case. The District
Court denied Pullman’s motions, and Pullman now appeals.
Even if we were to agree with Pullman that the arbitrators
misapplied the law—and we do not—legal error alone is not a
sufficient basis to vacate the results of an arbitration.
Accordingly, we will affirm.

Joining Fuentes were Chagares and Greenberg. The case was decided without argument.

UPDATE: Nick Vadala of has the case backstory here.

Any hope for filling Third Circuit’s empty seat in 2016? I’m skeptical.

With Judge Restrepo finally on the Third Circuit, attention has turned to the Third Circuit’s other empty seat, the one created when Judge Rendell took senior status in July of last year. Even though Rendell announced her decision a year ago now, President Obama still has not nominated a replacement.

P.J. D’Annunzio had this article earlier this month in the Legal Intelligencer, headlined “Pa. US Courts Still Hampered by Vacancies,” reporting that the Philadelphia Bar Association plans to write to Senators Toomey and Casey “about the urgency of filling Rendell’s seat.” Recent letters to the editor, including this one by Glenn Sugameli of Judging the Environment and this one by Christine Stone of Why Courts Matter, have sounded the same note.

My guess, not based on any insider information, is that the cause of the nomination delay is that Toomey is dragging out nomination negotiations with Obama as long as he possibly can. At some point, Obama would give up hope and submit a doomed nomination, but until then Toomey may have little to gain from signing off of any nominee. Toomey took a political beating over the Restrepo nomination delay and I bet he prefers having the delay look like Obama’s fault instead of his.

While I certainly hope the Rendell seat is filled before Obama leaves office, I’ll be amazed if it is. Conservative activists are pushing hard to shut down confirmations already. Heck, they even wanted to block Restrepo. Last month I posted this informed commentator’s prediction that Restrepo will be the last Obama circuit judge confirmed. And Republicans will get a measure of credit for a deal to fill 4 other judicial spots by the end of February. I can’t persuade myself that Toomey will decide it’s good re-election-year politics to support any nominee for the Rendell seat.

One of the main talking points the liberal activists are using is that, back in 2008, Bush nominated Steven Agee for the Fourth Circuit in March and the Senate confirmed him in May. The Senate was Dem-controlled and one of Agee’s home-state senators was a Dem (and thus able to block the nomination). But I doubt the Republican Senate leadership today will find the Agee confirmation compelling precedent. There were 5 (!) openings on the Fourth Circuit at the time, and none of the other 4 Bush nominees made it through. If that’s the best example the Dems have, well, good luck.

I hope I’m wrong, but I predict that the too-long wait to get the Third Circuit to full strength will drag on at least another year.

New opinion — Conflict panel affirms in bankruptcy case

In re: Wettach — bankruptcy — affirmance — Sentelle

A Third Circuit panel of non-Third Circuit judges today affirmed a district court’s rulings in a bankruptcy case. The Third Circuit’s judges apparently all recused due to a peripheral financial interest in the case of one of them.  I previously posted about the case here and here. The appellant’s brief raised 10 issues, several related to constructive fraudulent transfer, but the court rejected them all.

Suppose, purely hypothetically, that the losing party believed that the panel opinion here contradicted prior CA3 precedent. When a conflict panel decides an appeal, en banc review is impossible, right? That’s an odd situation, but not as odd as constituting a conflict en banc panel I suppose.

Joining Sentellle (DC Cir) were Benton (CA8) and Gilman (CA6). Arguing counsel were James Cooney of Robert Lampl & Associates for the appellants and Neil Levin for the trustee.

Should judges recuse when their fellow judge has “a piece of the action?” — PA judges may be learning, but CA3 judges already knew

The Third Circuit issued a short little unpublished opinion in a bankruptcy appeal last week. The most interesting thing about it was that the panel was three judges from other circuits; I wrote about the case before oral argument, here. After that post, a couple intrepid readers helped me figure out that the apparent reason all the Third Circuit judges recused was that one of them had a peripheral financial stake in the outcome.

If the wisdom of the Third Circuit’s court-wide recusal were not clear before, it sure is clear now.

Today’s Philadelphia Inquirer features this story by Jessica Parks, about the controversy that’s erupted after one county judge refused to recuse himself from a case in which one of his fellow county judges had a massive financial interest. The Pennsylvania Superior Court recently split evenly over whether the judge’s failure to recuse was error. Even the lawyer who’s defending the trial judge’s ruling was quoted saying:

“The message was sent loud and clear to every lawyer and every judge in the state. Next time someone is in front of any court in Pennsylvania where one of the judges has a piece of the action on that case – no one’s going to ever do it again.”

“Next time.” The Third Circuit judges did the right thing this time. Reading about the Pennsylvania judiciary’s latest embarrassment, I bet they’re glad they did.

New opinion — bankruptcy court can void an expired union contract

In re: Trump Entertainment Resorts — bankruptcy — affirmance — Roth

The Third Circuit today upheld a bankruptcy-court ruling voiding the continuing terms of a union’s expired collective-bargaining agreement in the Trump Taj Mahal’s Chapter 11 reorganization. The court summarized its reasoning thus:

Under the policies of bankruptcy law, it is preferable to preserve jobs through a rejection of a CBA, as opposed to losing the positions permanently by requiring the debtor to comply with the continuing obligations set out by the CBA. Moreover, it is essential that the Bankruptcy Court be afforded the opportunity to evaluate those conditions that can detrimentally affect the life of a debtor, whether such encumbrances attach by operation of contract or a complex statutory framework.

The appeal had received recent attention, on this blog and elsewhere, after counsel for the casino filed a letter on January 4 asking the court to hurry up and issue an opinion. How Appealing has links to early news coverage of today’s opinion.

Joining Roth were Shwartz and Scirica. Arguing counsel were Kathy Krieger for the union and Roy Englert for the casino.

New opinion — Third Circuit rejects Super Bowl ticket appeal based on standing

Finkelman v. NFL — civil / standing — affirm/dismiss — Fuentes

The NFL allegedly makes only 1% of Super Bowl tickets available to the public. New Jersey has a statute (apparently intended to prevent event-organizers from favoring insiders over the public) making it illegal to withhold from the public more than 5% of available seating for an event. Two plaintiffs — one who bought above-face-price scalped Super Bowl tickets, one who balked — sued the NFL in federal court, alleging that its Super Bowl ticket sales violated the NJ law. Today, the Third Circuit held that both plaintiffs lacked standing to argue that the NFL violated the statute.

I feel sure this opinion will be cited heavily by future standing opponents in the circuit. I won’t claim to have my brain fully wrapped around the standing issue here, but the notion that the guy who bought scalped tickets lacks standing — a position even the NFL didn’t advance — strikes me as a mighty tough sell.

Joining Fuentes were Smith and Barry. Arguing counsel were Bruce Nagel for the plaintiffs and Jonathan Pressment for the NFL.

Supreme Court rejects Third Circuit’s pro-prisoner filing-fee rule

This past April, the Third Circuit in Siluk v. Merwin sided with prisoners in a circuit split over how much inmate litigants had to pay each month to cover multiple filing fees. Interpreting the PLRA, the divided CA3 panel held that payments were capped at 20% of the inmate’s monthly income, meaning, for example, that an inmate who owed 5 filing fees would be docked 20% of his monthly income until each of the fees was paid sequentially. Other circuits had held that inmates could be billed 20% of their income for each suit they filed, simultaneously, meaning that the inmate who owed 5 filing fees could be docked his entire income each month. In June, the Supreme Court granted certiorari to resolve the circuit split, as I reported here.

This week a unanimous Supreme Court briskly rejected the pro-prisoner rule the Third Circuit (along with the Second and Fourth Circuits) had adopted. The case is Bruce v. Samuels, the USSC opinion is here.

Third Circuit revives employment-discrimination suit

Connelly v. Lane Construction — employment discrimination — vacate & remand — Jordan

Sandra Connelly was a truck driver. According the suit she later filed, her male co-workers harrassed her, and her complaints about this harassment strained her work relationships. When the company then laid off drivers, she alleged, she was let go before less-senior male drivers, and when the company recalled laid-off drivers, the company brought back less-senior men but not her. She sued under title VII and state law, but the district court dismissed based its conclusion that she failed to plead a sufficiently plausible gender-discrimination claim. Today, the Third Circuit vacated that dismissal, holding that Connelly’s claims were sufficient to survive a motion to dismiss. The court reiterating that a complaint need not establish a prima facie case in order to survive dismissal, and that the test is whether the complaint is plausible on its face, a test that can be met “even if one believed it ‘unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.'”

Joining Jordan were Fisher and Chagares. Arguing counsel were Emily Town (formerly of Stember Cohn but now a WDPA clerk) for the employee, Samantha Clancy (formerly of Ogletree Deakins but now corporate counsel) for the appellant, and Christine Back for the EEOC as amicus appellant. (Neither Town nor Clancy are on their firms’ websites.)

Does nagging the court to issue an opinion work?

This interesting article last week by Cara Salvatore describes an unusual move by  prominent appellate lawyer Roy Englert in a pending Third Circuit appeal. The appeal involves a union’s challenge to part of an Atlantic City casino’s bankruptcy reorganization; Englert represents the casino. The appeal was argued on March 4 before Shwartz, Scirica, and Roth. Englert’s letter “request[s], in all respect, that a decision, one way or the other, be issued in the very near future.” It closes, “With respect, in the case of the [casino], we are now at a point that a decision is needed very soon” and requests “a decision as soon as practicable.”

My two cents: I see nothing wrong with a party explaining unusual time-urgency in its briefs or at oral argument, but sending the court a post-argument hurry-up letter strikes me as a risky move.

Stay tuned.

New opinion — an alphabet-soup Clean Air Act affirmance

Group Against Smog & Pollution v. Shenango Inc. — environmental — affirmance — Van Anterwerpen

A company runs a plant that’s subject to the NAAQS established by the EPA, requiring them to create a SIP, which was enacted by the ACHD, but the EPA and the DEP and the ACHD sued for violations of the SIP and then GASP did too. I think. Today the Third Circuit affirmed dismissal of the private suit against the polluter, holding that the private suit was barred by the diligent-prosecution bar of the Clean Air Act.

Van Antwerpen was joined by Fuentes and Shwartz. The case was decided without argument (“TCWDWA”).

New opinions — another blow against class arbitration, and a plain-error sentencing reversal

Chesapeake Appalachia v. Scout Petroleum — arbitration — affirmance– Cowen

Last year in Opalinski the Third Circuit held that the availability of class arbitration is an issue for courts to decide unless the parties’ arbitration agreement provides otherwise “clearly and unmistakeably.” Today, the court held that the parties’ arbitration agreement here, which incorporated rules promulgated by the American Arbitration Assoc., did not delegate the class arbitrability decision to the arbitrators with the requisite clarity, and therefore it affirmed the district court’s order vacating the arbitrator’s decision.

Joining Cowen were Shwartz and Krause. Arguing counsel were Robert Pratter of Cohen Placitella for the appellants and Daniel Donovan of Kirkland & Ellis for the appellee.

US v. Moreno — criminal sentencing — reversal in part — Fisher

Applying plain-error review, the Third Circuit today vacated a criminal defendant’s sentence because the defendant’s right of allocution was violated when the court permitted the prosecutor to vigorously cross-examine the defendant during his allocution. The court held that the error was plain even though “no previous cases have explicitly proscribed cross-examination during allocution,” because cross-examination was clearly contrary to the purpose of allocution. Interestingly, the opinion went on to say that, even if the error here were not plain, the court would still exercise its supervisory power to hold that defendants may not be cross-examined during allocution. The court also affirmed the defendant’s conviction (concluding it was clear a Confrontation Clause violated occurred when a witness read into the record law enforcement reports, but that the error was harmless) and rejected a challenge to imposition of a sentencing enhancement.

Joining Fisher were Chagares and Jordan. Arguing counsel were Brett Sweitzer of the federal defender for Moreno and Jane Datillo for the government.

New opinion — an ERISA loss for a religious hospital

Kaplan v. St. Peter’s Healthcare System — ERISA — affirmance — Ambro

A Catholic hospital was sued by one of its employees who alleged that the hospital violated ERISA by, among other things, under-funding its employees’ retirement plan by over $70 million. The hospital moved to dismiss the suit, claiming that as a church agency it qualified for a certain ERISA exemption. Yesterday the Third Circuit affirmed a district court ruling denying the hospital’s motion to dismiss, holding that, although the ERISA exemption applies to retirement plans established by a church and then maintained by a church agency, it does not apply to plans established by a church agency.

A phalanx of amici appeared on both sides and the opinion notes that a Seventh Circuit case involving the same issue is pending now, so I doubt this fight is over yet.

Joining Ambro were McKee and Hardiman. Arguing counsel were Jeffrey Greenbaum of Sills Cummis & Gross for the hospital and Karen Handorf of Cohen Milstein for the employee.

New opinion — employer win in age-discrimination suit

Willis v. UPMC Children’s Hospital — employment discrimination — affirmance — Van Antwerpen

After a hospital fired a 61 year-old nurse, the nurse sued under the Age Discrimination in Employment Act and a state statute. The district court granted the hospital’s summary judgment motion, and today the Third Circuit affirmed.

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

New opinion — qualified immunity for denial of treatment for condition that could lead to impotence

Michtavi v. Scism — prisoner civil rights – reversal — Rendell

A prisoner underwent surgery for a prostate issue. The prison surgery allegedly caused retrograde ejaculation, which, if untreated, could leave him impotent. Prescription treatment was available, but the prison refused it pursuant to a policy against treating sexual dysfunction. The prisoner filed suit, the prison administrators moved to dismiss based on qualified immunity, and the district court denied qualified immunity. Today, the Third Circuit reversed, concluding that there is no clearly established prisoner right to medical treatment for conditions that could lead to impotence.

Joining Rendell were Vanaskie and Sloviter. The case was decided without argument; the prisoner was pro se on appeal.

New opinion — rest-stop operator not a state actor

PRBA Corp. v. HMS Host Toll Roads, Inc. — civil — affirmance — Smith

The Third Circuit today held that a private company that operates service plazas on state highways was not a state actor for purposes of a suit under 42 USC 1983. The company had been sued by Bare Exposure (“Atlantic City’s #1 All Nude Gentleman’s Club”) for removing its brochures from service-plaza common areas. The court affirmed the district court’s grant of summary judgment because the state was directly involved in neither the brochure removal nor the day-to-day operations of the service plazas.

Joining Smith were Fuentes and Nygaard. Arguing counsel were Michael Daily for the strip club and Catherine Bledsoe for the service-plaza operators.

Major 2255 opinion reissued with minor changes

Back in September, the Third Circuit issued an opinion in US v. Doe that I described as “a glorious 50-page monument to the absurd complexity of habeas law.”

As if to underscore the point, the court today granted panel rehearing and issued a new opinion, now 51 pages. The outcome hasn’t changed, and the only differences I can spot are a new footnote 4 on page 14 and an additional government lawyer in the caption.

UPDATE: I also see some minor wording changes on pages 11 and 12, removing some ‘possible/possibility’ language.

New telecommunications opinion

AT&T v. Core Communications — civil / telecommunications — vacate & remand — Roth

You know who AT&T is. Core Communications is a specialized phone company whose customers are all internet service providers (ISPs). AT&T’s customers called Core’s customers. Core billed AT&T for the calls, AT&T refused to pay, Core filed a complaint with the state utility commission, and the utility commission ruled in Core’s favor. Finally AT&T sued in federal court, seeking an injunction to enjoin enforcement, arguing that the state utility commission violated federal law, and the district court granted summary judgment to AT&T. Today, the Third Circuit vacated and remanded with instructions to grant summary judgment in Core’s favor.

Joining Roth were Ambro and Scirica. Arguing counsel were Shaun Sparks for the utility commission, Christopher Van de Verge for Core, and Mayer Brown associate Christopher Comstock for AT&T.

New employment-law opinion

Babcock v. Butler County — employment / FLSA — affirmance — Sloviter

A divided Third Circuit panel today affirmed a district court ruling a dismissing without discovery a suit brought by prison guards alleging that their full meal time was work that should have counted towards overtime. The panel majority joined a circuit majority in adopting a predominant-benefit test to decide whether meals were work time under the Fair Labor Standards Act, and held that they were not even though the guards pled that they were required to be prepared to serve at a moment’s notice during meals.

Joining Sloviter was Fuentes; Greenaway dissented. Arguing counsel were Justin Swidler for the guards and Marie Jones for the county.

Orin Kerr weighs in on the Google Cookie opinion

Orin Kerr has posted this lengthy explanation and analysis at Volokh Conspiracy of the Third Circuit’s opinion in In re Google Inc. Cookie Placement Consumer Privacy Litig. (my prior post on the case is here). The Third Circuit opinion discussed at length Professor Kerr’s scholarship, and his take on the opinion is likely to be taken seriously, too.

Professor Kerr’s bottom-line assessment:

I think the opinion is correct. It’s somewhat easy for me to say that, as the court agreed with and quoted my earlier writing on this issue * * *. Seriously, though, this was the first thorough and careful treatment of a really hard and important issue. Good for the Third Circuit for delving into the details of it; I suspect the opinion will be very influential.



New opinion — Third Circuit expands temp-employee rights

Faush v. Tuesday Morning — employment discrimination — partial reversal — Fuentes

An African American employee of a temporary-employment agency was assigned to work at a store, and it went badly. Ultimately, the temp sued the store under Title VII and other statutes, alleging that he was the victim of racial discrimination. The district court (some guy named Restrepo) granted summary judgment against the temp because he was not the store’s employee. Today, the Third Circuit vacated in part, holding that jurors could find that the temp was the store’s employee under Title VII. The opinion acknowledged that its ruling “will pertain to a large number of temporary employment arrangements.”

Joining Fuentes were Fisher and Krause. Arguing counsel were Wayne Ely for the temp and Robert Luxen for the store.

Quality commentary on the panel-voting-paradox case

David Post wrote this very informative piece for Volokh Conspiracy about last week’s Hanover 321 ruling, entitled “Wild voting paradox case in the 3rd Circuit.”

Post writes:

It must happen a lot.  And it is, one would think, quite fundamental to how appellate courts go about their business.

* * *

You would think that the hundreds of appellate courts in this country would — long ago — have addressed this matter, and come up with a procedure or protocol that they would follow when performing this most basic of their functions.  Indeed, one might even say that a multi-member court can’t really go about its business of deciding cases until it first decides how it is going to decide — by outcome-voting or by issue-voting.

But in fact, there are only a handful of examples where courts publicly address their choice of voting procedure or their views on the proper means to resolve the Paradox.

* * *

So the issue is — finally! — joined; I’m not aware of another case that engages the issue as forthrightly, nor one that lays out the opposing positions as clearly.

Well worth reading in full.

Also of possible interest is this reddit thread on the case.


New prisoner-civil-rights opinion

Chavarriaga v. State of N.J. Dep’t of Corr. — civil rights — reversal in part — Greenberg

In this prisoner-civil-rights appeal, the Third Circuit partially reversed a district court ruling for the defendants. The plaintiff alleged that, in retaliation for an excessive-force suit she had filed, prison staff forced her to be naked in view of male guards, subjected her to a painful body cavity search, denied sanitary napkins and medication, and locked her for days in a cell with nothing to drink but the water in the toilet. The Third Circuit rejected the district court’s ruling that these acts were not serious enough to violate the Eighth Amendment. The court also reversed dismissal of related equal-protection and state-law claims. The court affirmed dismissal of her claims against prison supervisors, but remanded to give the plaintiff a chance to identify the prison staff responsible.

Joining Greenberg were Ambro and Fuentes. Arguing counsel were Noel Crowley for the prisoner and Daniel Vannella for the defendants.


New opinion — a glorious panel-voting mess, plus a correction

Hanover 3201 Realty v. Village Supermarkets — antitrust — vacate in part — Fuentes

This is an antitrust case that arose out of a real-estate dispute between two supermarkets. The outcome of the appeal turns on two issues: standing and the merits. The three judges on the panel all disagreed on the issues and the outcome, and the result is simply appeals-nerdtastic.

Judge Ambro’s concurrence cogently explains:

This case presents what academic literature terms a “voting paradox.” On the one hand, two judges (Judge Greenberg and I) believe that the outcome should be that Hanover’s suit not proceed, though we do so for different reasons. However, one majority of this Court (Judges Fuentes and Greenberg) believes that Hanover has antitrust standing (I do not because I do not discern antitrust injury), while another majority (Judge Fuentes and I) believes that Hanover should survive Village’s motion to dismiss (assuming it has antitrust standing). The paradox is that, if I vote on the judgment of this case (affirm or reverse) based on my individual views, a majority of the Court will have ruled against the prevailing party on each relevant issue, meaning that our Court’s reasoning would not support its judgment. However, if I follow, despite my dissent, Judge Fuentes and Greenberg on the antitrust standing issue, my individual vote would be inconsistent with my view of who should win were I alone ruling.

He explains the choice is between “issue voting” and “outcome voting”:

Broadly speaking, the former occurs when a judge surveys the holding on each question of law presented; a majority vote on any given issue counts as a holding of the court, and the remaining judge is bound by it as if it occurred in a prior precedential case.5 The latter, and more common, scenario occurs when a judge votes on the result of a case (affirm, vacate, reverse, etc.) according to his or her view of the proper outcome and without regard to the views of the other judges on a panel. Even if a careful reading of the judges’ opinions in a case shows that a majority would rule for the losing party on each relevant issue, an outcome-vote, as that term is usually used in the relevant literature, results in a win for the party the majority of judges think should win regardless of reasoning.

Here, the panel chooses issue voting — here again the panel is divided, naturally. (On a first read, I tend to agree with Greenberg on the voting issue.) It is a glorious confusing mess, dear readers, and I guarantee you’ll love it.

The panel was Fuentes, Ambro, and Greenberg. Arguing counsel were double Tarheel Lindsey Taylor of Carella Byrne for the appellant and Anthony Argiropoulos of Epstein Becker for the appellees.


Also today, the court corrected the error in Tuesday’s Google Cookie case that I spotted, and also corrected a typo in September’s Tonnage Clause case.

Free Speech Coalition panel rehearing: keep fighting to the final bell

Back in September, the Third Circuit granted panel rehearing in Free Speech Coalition v. AG. The original panel ruling had upheld federal record-keeping and inspection requirements imposed on pornography producers. The panel had the option under FRAP 40(a)(4) to decide the case without reargument, but it granted reargument and scheduled it for December 9.

This panel rehearing grant offers an object lesson in the importance of battling to the end. Here, the appeal was originally argued in December 2014, and it was decided by the panel on May 14, 2015. Lesser lawyers would have surveyed the landscape on May 14, decided that rehearing was a lost cause, and moved on.

But over a month after the panel decision (still within the 45-day FRAP 40(a)(1)(C) window to seek rehearing), the Supreme Court issued a new decision that arguably cast doubt on the CA3 ruling. Counsel for the Coalition caught it and pounced. A week later, they filed a rehearing petition focused on the new Supreme Court ruling. The government opposed rehearing, but the panel (Rendell, Smith, Scirica) granted the motion and vacated its prior ruling.

Whatever the final result, counsel’s diligence has given them another shot to win their case. Impressive work.

As a postscript, I noticed a couple other interesting things while reviewing the docket to write this post. First, the court granted the parties’ motion to file a deferred appendix due to the large size of the record. That’s an option many lawyers would not consider and the Third Circuit’s LAR 30.4 discourages, but the court allowed it here so it’s worth keeping in mind.  Second, the court granted the parties’ motion to dispense with filing paper copies of the large joint appendix. Who knew?

New opinion — a major consumer privacy ruling (with an error) [Updated]

In re Google Inc. Cookie Placement Consumer Privacy Litig. — consumer class action — vacate in part — Fuentes

Google apparently found a clever way to defeat the Safari browser’s cookie-blocking feature, but sometimes clever is illegal. When a grad student discovered what Google had done, Google had to pay out almost $40 million to settle two government suits. Then consumer plaintiffs filed class-action suits alleging various federal- and state-law violations, which were consolidated by the Multi-District Litigation panel. The district court dismissed the suits under FRCP 12(b)(6), and the consumers appealed. Today, the Third Circuit largely affirmed the dismissals, but vacated the dismissal of certain state-law privacy claims.

Unfortunately, the opinion contains a big error. On page 16 of the slip opinion, in a road map preview, the opinion states, “we will vacate the dismissal of plaintiffs’ Wiretap Act claim.” But in fact the opinion “affirm[s] the District Court’s dismissal of the plaintiffs’ Wiretap Act claim” at p. 41. Oops.

(Aside: not the first time that’s ever happened.)

Joining Fuentes were Fisher and Krause. Arguing counsel were Jason Barnes for the consumers and Michael Rubin for Google.


UPDATE: the court has issued a correction.

Third Circuit cases included in new contraception-mandate cert grant

The Supreme Court today granted certiorari in 7 cases involving challenges to the Affordable Care Act’s contraception-mandate. Two of the cases are out of the Third Circuit; both were decided in the same opinion upholding the mandate.

Lyle Denniston has this early coverage of the new grant at Scotusblog. The Court indicated (Scotusblog link here) that it expects to hold the argument in March.

New immigration opinion

Singh v. AG — immigration — denial — Jordan

A lawful permanent resident was convicted of counterfeiting and fraud and left the country. Then he returned (apparently he was allowed back in by mistake) and proceeded to live here without incident for 7 years. before being detained for removal by ICE. He challenged his removal, arguing he was eligible for cancellation of removal by statute. The BIA rejected his challenge, and today the Third Circuit denied his appeal.

The court held that the petitioner’s seven-year clock never started due to his prior moral-turpitude conviction plus the inclusion of that crime in his removal notice. The court deemed itself bound by prior circuit precedent which in turn gave Chevron deference to a BIA ruling that today’s court described as “not without flaws,” “formalistic,” and “odd,” noting, “It would behoove the BIA to provide some clarity in this area.” Slip op. at 13 n.7.

Not a very satisfying result, but sometimes that’s what faithful judging looks like.

Joining Jordan were Fisher and Chagares. Arguing counsel were Nicholas Mundy for the petitioner and Lindsay Murphy for the Government.

The mysterious Third Circuit panel of Benton, Sentelle, and Gilman

On November 23, an unusual Third Circuit panel will sit for oral argument: Judge William Benton from the Eighth Circuit, Senior Judge David Sentelle from the D.C. Circuit,* and Senior Judge Ronald Gilman from the Sixth Circuit.

Now, this sort of thing isn’t unheard-of. Sometimes all the judges on a court have to recuse, and, when that happens, outside judges pinch hit. For example, just a couple months ago three Third Circuit judges decided this published Fourth Circuit case.

But the mystery in this case is why?

Presumably all the Third Circuit judges recused, but the basis for those recusals eludes me. The cases before the panel (one argued, one submitted on the briefs) are bankruptcy appeals. Both debtors are members of the same Pittsburgh business-litigation law firm; the legal issues are similar, and the attorneys on appeal are the same. But, after scanning the dockets and scouring the internet and asking a few smart folks who know these things, I can’t find any hint of why either case would require any (let alone every) Third Circuit judge to recuse.

This isn’t an important mystery, I admit, but mysteries needn’t be important to be maddening. So if anyone thinks they have the solution, please comment here or email me.

* Judge Sentelle is (like me in this respect, and quite possibly in only this respect) a ‘double Heel,’ having earned both his undergraduate and law degrees from the University of North Carolina. When I was in law school I was encouraged to apply to clerk for him because he was a feeder judge who often hired top UNC law students. He reportedly named his daughter Reagan and was a protege of Jesse Helms: I didn’t apply.


Arbitration, “de facto corporate immunity,” and the Third Circuit

The New York Times today ran the second part of a special report on arbitration, entitled “Arbitration, a ‘Privatization of the Justice System.'” (Part I, with a cameo by avid hunter and EDPA Judge Schiller, is here.)

The story ends on this depressing note:

After the ruling, Ms. Pierce’s lawyers wrote to Mr. Kalogredis’s arbitration firm questioning his qualifications. The firm, American Health Lawyers Association, responded that it was not its responsibility to verify the “abilities or competence” of its arbitrators.

This brings to mind the recent Third Circuit case of Goldman Sachs v. Athena Venture (here), where the court refused to vacate an arbitration even though one of arbitrators allegedly committed gross misconduct. The opinion criticized the arbitration authority for its “remarkable” failure to investigate the arbitrator once the first evidence of misconduct came to light, but the court confirmed the arbitration award anyway.

And the broader concerns about arbitration’s growth brings to mind the Third Circuit’s unfortunate 2014 ruling in Khazin v. TD Ameritrade (here). That decision has been described by one commentator as extending to whistleblower suits the “trend of courts conferring de facto corporate immunity.”

The Third Circuit is sure to continue to face challenges to the expanding use of arbitration, and it will be interesting to see whether the growing concern about its fairness is reflected in case outcomes.

“Why Everyone Is Upset About the Third Circuit’s Recent TCPA Decisions …”

The title of this post is part of the headline of this provocative new post by Michael Daly of Drinker Biddle at the National Law Review. (The rest of the headline: ” — And a Few Reasons Why They Shouldn’t Be).  The TCPA is the Telephone Consumer Protection Act, background here.

Daly begins:

Defendants’ discussions of the Third Circuit’s recent decisions in Leyse v. Bank of America [link] and Dominguez v. Yahoo [non-precedential] have been all doom and gloom. Some of that disappointment is understandable, as the Third Circuit vacated notable defense rulings and expanded the scope of consumers who have statutory standing to file suit under the TCPA. On closer examination, however, both of the decisions offer not only a sword to plaintiffs but a shield to defendants.
And concludes:
But the most important implication of the ruling may be the one that the court does not discuss, namely its effect on class certification. Because class certification is the point at which claims can go from annoying to annihilating, any additional arrow in defendants’ quiver is a good thing. And the Leyse decision appears to be just that. For example, if the proper plaintiff in a TCPA case is the consumer who “answered the telephone when the robocall was received,” id. at 23, and answering parties only have constitutional and statutory standing if they not only have an “injury in fact” but also are a “regular user of the phone line who occupies the residence,” it follows that plaintiffs in a putative class action must prove that they can establish those things on a classwide basis. It is difficult to fathom how references to a calling log alone would ever be able to ascertain such people, let alone prove their claims on a classwide basis. So while the Leyse decision may make it easier for certain consumers to assert individual claims, it also appears to make it harder for consumers to certify a class action.
It’s an informative post. Daly says he’ll have a follow-up post further discussing what the Third Circuit cases mean for TCPA defendants.

New opinion

In re: Avandia Marketing — civil — affirmance — Roth

In an interlocutory appeal arising out of class action litigation over the diabetes drug Avandia, the Third Circuit today affirmed a district court ruling that the plaintiffs adequately alleged standing and proximate causation for their RICO claims against GlaxoSmithKline.

Joining Roth were Ambro and Scirica. Arguing counsel were  John Beisner of Skadden Arps for GSK and Samuel Issacharoff for the plaintiffs. The case was argued over 11 months ago.


New opinion — insurer wins coverage dispute

Hanover Insurance v. Urban Outfitters — insurance — affirmance — Roth

Starting in 2009, Urban Outfitters marketed clothes branded as Navajo (yeesh), and the Navajo Nation sued them for trademark infringement. Urban Outfitter’s insurer then sought a declaratory judgment that it was not on the hook, which the district court granted. Today, the Third Circuit affirmed, holding that a “prior publication” exclusion in the insurance contract applied.

Joining Roth were Ambro and Scirica. Arguing counsel were Ilan Rosenberg of Gordon & Rees for the outfitters and Andrew Gallogly of Margolis Epstein for the insurer.

Two potential Third Circuit cert grants — Georgiou and Erwin

I posted yesterday about the two Third Circuit cases (Merrill Lynch and Heffernan) the Supreme Court has already agreed to review this term.

Two other Third Circuit cases are listed on Scotusblog’s “petitions we’re watching” page, and both are highly interesting:

  • Georgiou v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about the cert petition here.
  • Erwin v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about Erwin many times (“my runaway winner for Worst Decision of 2014,” etc.), most recently here.  Erwin’s counsel of record for the cert petition is Supreme Court vet Kevin Russell of Goldstein & Russell. The government got three extensions before answering. Erwin replied that the government’s response “is as radical and unfounded as the decision itself.”

A defense practice tip:  unless and until cert is granted and Erwin vacated, plea counsel would be wise to note this passage from the government’s answer (cites omitted):

Defendants can reduce the likelihood
that they will face a remand for resentencing, if they
choose to appeal despite an appeal waiver, by negotiating
provisions in plea or cooperation agreements
limiting the circumstances in which the government
may seek such a remedy. For instance, since the
decision below, defendants in the Eastern District of
Pennsylvania have pleaded guilty pursuant to a plea
agreement providing that “the filing and pursuit of an
appeal constitutes a breach only if a court determines
that the appeal does not present an issue that a reasonable
judge may conclude is permitted by an exception
to the waiver stated in the preceding paragraph
or constitutes a ‘miscarriage of justice’ as that term is
defined in applicable law.”

Such provisions protect a defendant’s ability to assert
reasonable arguments that his claims on appeal
are not barred by the waiver or that the waiver should
not be enforced.

Also of note, the government argues that mere dismissal remains the Third Circuit’s “ordinary” remedy and that no subsequent Third Circuit opinion has imposed Erwin‘s resentencing penalty.

I’ll be on the edge of my seat for the Oct. 30 conference results.


Two Third Circuit cases headed to Supreme Court

So far this term the Supreme Court has granted certiorari to review two Third Circuit cases.

The first is Merrill Lynch v. Manning. The question presented, per Scotusblog:

Whether Section 27 of the Securities Exchange Act of 1934 provides federal jurisdiction over state-law claims seeking to establish liability based on violations of the Act or its regulations or seeking to enforce duties created by the Act or its regulations.

My summary of the Third Circuit opinion noted an explicit circuit split and that the loser had  high-powered counsel (headlined by former acting SG Walter Dellinger), so the cert grant is no big surprise. The case has been set for argument December 1.

The other one is Heffernan v. City of Paterson. Eugene Volokh was among the lawyers who signed the successful cert petition. The QP:

Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.

I called the Third Circuit opinion a head-scratcher and described its holding as “[w]acky.” Time will tell whether the Court agrees.

New opinion — bad faith a basis for dismissal of involuntary bankruptcy petition

In re: Forever Green — bankruptcy — affirmance — Fuentes

Creditors can initiate involuntary proceedings against a debtor. Today, the Third Circuit held that a creditor’s bad faith provides independent grounds for dismissing an involuntary petition. The court adopted a totality-of-the-circumstances for assessing bad faith and held that the district court’s bad-faith finding was not an abuse of discretion.

Joining Fuentes were Nygaard and Roth. Arguing counsel were Aris Karalis for the debtor and Steven Eisenberg for the creditors.

En banc procedure in the Third Circuit, redux [updated]

[UPDATE: After reading my post, Legal Sports Report has pulled their article while they review.]

The influential sports-law blog Legal Sports Report is following NCAA and has a lengthy and interesting post today about the en banc process, but the post is wrong on a few points. My original post yesterday on Third Circuit en banc procedures is here.

The Legal Sports Report post claims, “We do not know yet which judges will be on the en banc panel,” explaining:

Generally, recusal decisions are not known until the matter is set for argument, and sometimes not until the day of the argument.

Some have speculated that, because the court’s order granting rehearing en banc named only nine of the active judges as having voted on the en banc petition (judges listed as “Present”), the other three judges who were not named are recused. This speculation is unwarranted.

There were no recusals noted in the court’s order (typically reflected as “Judge Smith took no part in this decision.”). The absence of the three judges (Chief Judge McDonald [oops: he means McKee] and Judges Chagares and Schwartz [Shwartz, actually]) is most likely a reflection of a quirk in the court’s rules.

Petitions for rehearing en banc are circulated to all active judges. The judges wishing to grant rehearing must affirmatively notify the clerk. Judges wishing to deny rehearing, however, may either affirmatively notify the clerk or simply make no response at all; either way, their vote counts as a “no” because rehearing en banc requires a majority of active judges, not a majority of active judges who vote.

So, although one or more of the three active judges not named in the order may have recused themselves, the more likely explanation is that they simply did not vote on the petition for rehearing but will still sit on the en banc panel.

This is wrong. The fact that McKee, Chagares, and Shwartz did not sign the order granting rehearing en banc in NCAA means they will not participate in the rehearing because they have recused themselves, not that they “simply did not vote.” The docket for each en banc case is explicit about this, listing the judges who signed the order granting rehearing en banc with the label “Coram.”

Don’t believe me? Look at Langbord, the gold-coins en banc argued earlier this week. Greenaway is not listed on the on order granting rehearing, and he did not participate in the argument. The last en banc with a recusal before that was Al-Sharif. Chagares is not on the order granting rehearing, and he did not participate in the argument.

(Also, the “sometimes not until the day of the argument” statement is wrong too, as Third Circuit practitioners well know.)

Given that error, all of this is wrong, too:

Bottom line, assuming no recusals, we can expect the en banc panel to have 14 or 15 judges—the 12 active judges plus Senior Judges Rendell and Barry, and possibly Judge Restrepo if he is confirmed prior to argument. Thus, New Jersey will need to find eight votes in order to prevail (a tie vote would leave the district court decision in force as the final decision, but  a tie is highly unlikely—in case of a tie, one judge would likely switch sides and join a narrow decision in order to provide finality to the issue).

These missteps aside, it’s an intelligent post with some plausible head-counting, and I recommend it.

UPDATE: One other thing. I said Legal Sports Report’s head-counting was plausible, but that doesn’t mean I think it’s right. The post reasonably predicts that in NCAA the more liberal judges will side with Congress and more conservative judges with the state. But, in predicting which judges will fall into which camp, the post hypothesizes that the liberals are the judges nominated by Dem presidents and the conservatives are the ones nominated by Republicans. In a lot of circuits that would be give you a reasonably accurate guesstimate, but not here. As I’ve shown in detail here,, nominating party does not match up very well with vote ideology in the court’s recent en banc cases.




Good analysis of this week’s epic NYPD civil-rights reversal

I’ve long been a fan of Bruce Greenberg‘s New Jersey Appellate Law blog, and this week Bruce posted an insightful piece on the Third Circuit’s landmark civil-rights reversal in Hassan v. City of New York.

The entire post is worth reading, but what stood out to me was his description of Judge Ambro’s opinion as ” one of the most important decisions that the Third Circuit has made in some time,” and his prediction that it “will be long remembered.”

For some perspective on the case from the inside, here’s a sharp case timeline posted by the Center for Constitutional Rights, plaintiffs’ arguing counsel. And here’s a post by the Brennan Center for Justice, an amicus in the appeal, quoting one of the lawyers to say that Hassan “is on the right side of history.”

New opinion — deciding what “renewal” means

Indian Harbor v. F&M Equipment — contract — vacate & remand — Roth

The Third Circuit today vacated a summary-judgment grant in an insurance contract dispute, holding that, for a contract to be considered a renewal, it must contain the same or nearly the same terms as the original.

Joining Roth were Ambro and Fuentes. Arguing counsel were appellate lawyer Thomas Peterson of Morgan Lewis for the appellant and Joel Hopkins of Saul Ewing for the appellee.

New opinion — a consumer procedural win, plus a new en banc grant

Leyse v. Bank of America — civil consumer — reversal — Fuentes

A consumer sued Bank of America, alleging that robo-calls used to market credit cards violated the Telephone Consumer Protection Act. (Who knew? A law bars any person from initiating any telephone call to residential phone using a prerecorded voice without prior consent or an exemption.) The district court dismissed, holding that the plaintiff lacked statutory standing because the call was meant for his roommate. Today, the Third Circuit reversed, holding that residents who receive the calls fall within the statute’s zone of interests.

Joining Fuentes were Sloviter and Roth. Arguing counsel were Todd Bank (whose website bills him as “The ‘Annoyance’ Lawyer”) for the consumer and former Asst. to the Solicitor General Joseph Palmore of Morrison & Foerster for the bank.


Also today, the Court granted en banc rehearing in NCAA v. Governor of NJ (vacated panel opinion here, my summary here). Senior-judge panel-members Rendell and Barry both will participate. [EDIT: Also of note, McKee, Chagares, and Shwartz are not participating]

Good coverage of the rehearing petition (quoting me — lucky for me he left out the part where I predicted rehearing would be denied!) by Zachary Zagger on is here.

An en banc argument pitting Paul Clement against Ted Olson? Gonna be a big day at the Jim Byrne.

New opinion — Court revives major post-9/11 civil rights suit

Hassan v. City of New York — civil rights — reversal — Ambro

Here’s how today’s opinion begins (cites and parentheticals omitted):

Plaintiffs appeal the dismissal of their civil-rights suit
against the City of New York. They claim to be
targets of a wide-ranging surveillance program that the New
York City Police Department began in the
wake of the September 11, 2001 terrorist attacks. Plaintiffs allege that the Program is based on the
false and stigmatizing premise that Muslim religious identity
“is a permissible proxy for criminality, and that Muslim
individuals, businesses, and institutions can therefore be
subject to pervasive surveillance not visited upon individuals,
businesses, and institutions of any other religious faith or the
public at large.” They bring this lawsuit “to affirm the principle
that individuals may not be singled out for intrusive
investigation and pervasive surveillance that cause them
continuing harm simply because they profess a certain

In its narrowest form, this appeal raises two questions:
Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in
federal court to vindicate their religious-liberty and equalprotection
rights? If so, taking Plaintiffs’ non-conclusory
allegations as true, have they stated valid claims under the
First and Fourteenth Amendments to our Constitution? Both
of these questions, which we answer yes, seem
straightforward enough. Lurking beneath the surface,
however, are questions about equality, religious liberty, the
role of courts in safeguarding our Constitution, and the
protection of our civil liberties and rights equally during
wartime and in peace.

And the conclusion:

The allegations in Plaintiffs’ Complaint tell a story in
which there is standing to complain and which present
constitutional concerns that must be addressed and, if true,
redressed. Our job is judicial. We “can apply only law, and must abide by the Constitution, or [we] cease to be civil
courts and become instruments of [police] policy.”
Korematsu, 323 U.S. at 247 (Jackson, J., dissenting).
We believe that statement of Justice Jackson to be on
the right side of history, and for a majority of us in quiet
times it remains so . . . until the next time there is the fear of a
few who cannot be sorted out easily from the many. Even
when we narrow the many to a class or group, that
narrowing—here to those affiliated with a major worldwide
religion—is not near enough under our Constitution. “[T]o
infer that examples of individual disloyalty prove group
disloyalty and justify discriminatory action against the entire
group is to deny that under our system of law individual guilt
is the sole basis for deprivation of rights.” Id. at 240
(Murphy, J., dissenting).
What occurs here in one guise is not new. We have
been down similar roads before. Jewish-Americans during
the Red Scare, African-Americans during the Civil Rights
Movement, and Japanese-Americans during World War II are
examples that readily spring to mind. We are left to wonder
why we cannot see with foresight what we see so clearly with
hindsight—that “[l]oyalty is a matter of the heart and mind[,]
not race, creed, or color.” Ex parte Mitsuye Endo, 323 U.S.
283, 302 (1944).
We reverse and remand for further proceedings
consistent with this opinion.

Obviously a sweeping and important opinion. I’m looking forward to reading it with care, but I’ve got a Third Circuit opening brief due today so I’ll have to wait.

Joining Ambro were Fuentes and Roth; Roth issued a short concurrence. Arguing counsel were Baher Azmy of the Center for Constitutional Rights for the plaintiffs and Peter Farrell for the city,

New opinion — Remand in a “Kafkaesque” commitment case

US v. Foy — civil commitment / jurisdiction — remand — Greenberg

The Third Circuit usually posts new published opinions on its website around 12:25 p.m., but occasionally it posts them late in the day, and it did so today. It’s an odd, complicated, and disturbing case and I’m not sure I can do it justice now, but here’s the gist.

Way back in 2003, Joaquin Foy was charged with a crime, but prior to trial he was found incompetent and the charges were dropped but he was federally committed. By 2009 doctors concluded it was safe to release him but he has continued to be detained because he won’t  promise to take his meds if released! Foy contends that continuing to hold him violates federal law, resulting in a tangle of litigation in 3 different federal courts. Relevant to today’s appeal, Foy filed a pro se motion to vacate judgment under Rule 60 in EDPA, the district court denied it, and in 2011 the Third Circuit appointed counsel and ordered briefing. Today, 4 years later but without oral argument, a divided panel vacated the district court’s denial and remanded for the district court to decide whether to transfer or dismiss it.

Joining Greenberg was Greenaway. Krause dissented in part, describing the case as “nothing short of Kafkaesque and cries out to be heard by some court.” The case was decided without argument.

New opinions — Rule 58 in the ECF age, and a Tonnage Clause case

Witasick v. Minnesota Mutual — civil — affirmed — Nygaard

Published Third Circuit opinions involving pro se litigants are fairly rare. Pro se civil litigants? Quite rare. Pro se civil litigants with felony records who are allowed to give oral argument?* New to me.

Now, if the pro se party won the case,that would be rarest of all, but it wasn’t to be. He did pick up some style points on a procedural issue, though.

Attorney Kevin Witasick had insurance coverage. After a coverage dispute, the parties settled and Witasick signed a covenant not to sue. At the same time, Witasick was prosecuted and convicted of fraud and related charges, and an insurer’s employee testified against him. Witasick then initiated the current case by suing the insurance companies. The district court dismissed the suit based on the settlement agreement, and today the Third Circuit affirmed.

Although the merits were a slam-dunk, there is an interesting procedural wrinkle that federal practitioners should note.

The court held that Witasick’s notice of appeal was timely, even though it was filed far more than 30 days after the district-court opinion dismissing his claims, because the district court did not set out the dismissal in a separate document, per FRCivP 58. While there was an ECF docket entry stating that the case terminated, and the court today agreed that ECF docket entries could satisfy Rule 58, the docket entry here did not because it did not give the basis for termination (and maybe because it was a mere clerical notation, although the opinion is less clear here). The court said that text orders usually would satisfy Rule 58, while utility events and minute entries cannot because they are not orders and are not signed by a judge. While that part looks like dicta, this is the first case I’ve seen grappling with how Rule 58 applies in the age of ECF.

Joining Nygaard are Fuentes and Greenaway. Arguing counsel were Kevin Witasick for himself and Jacqueline Herring for the insurers.

* He was allowed to do oral argument, but then he didn’t show. I should know — I argued the case that was supposed to be up second that morning, but the panel had us go first in case he arrived late.


Maher Terminals v. Port Authority of NY & NJ — Tonnage Clause — affirmed — Fisher

Maybe I overslept the day we covered the Tonnage Clause in con law. If you’re as sadly uninformed as I, the Tonnage Clause of the US Constitution (article I, section 10, clause 3) bars states from “lay[ing] any Duty of Tonnage” without Congress’s say-so.

Today, a divided Third Circuit panel held that a marine terminal operator challenging its rent cannot state a claim under the Tonnage Clause because said clause’s zone of interests is limited to injuries to a vessel as a vehicle of commerce. To its great credit, the majority opinion smoothly uses both “unmoor” and “[a]nchoring,” without going overboard with nautical whimsy.

Joining Fisher were Shwartz in full and Jordan in part. Dissenting in part, Jordan disagreed that the plaintiff failed to state a Tonnage Act claim. Might be a plausible case for cert. Arguing counsel were former Coast Guard captain Lawrence Kiern of Winston & Strawn for the appellant and Peter Isakoff of Weil Gotshal for the appellees.

New opinions — a criminal-sentencing reversal and a close look at stays pending appeal

US v. Nagle — criminal — reversal — Fisher

Two co-owners of a construction business were convicted of fraud and other charges. Apparently they were non-minority contractors who collaborated with a minority contractor; the minority business would bid on contracts and then give the defendants all the work. Both defendants challenged the sentencing court’s loss calculation, and today the Third Circuit vacated their sentences and reversed. The court held that the proper loss amount was not the face value of the work contracts: the fair market value of the services provided by the defendants had to be subtracted when calculating the loss. The court also rejected the government’s argument that the 10-level departures the defendants received rendered the loss-calculation error harmless.

Joining Fisher were Roth and Hardiman in part. Hardiman briefly concurred in the judgment in part. Arguing counsel were Ellen Brotman of Griesing Law for one defendant, William Kent for the other, and Bruce Bandler and Jenny Ellickson for the government.


In re: Revel AC — procedure, bankruptcy — reversal — Ambro

The Third Circuit today explained its prior-issued ruling reversing a district court’s denial of a request for a stay pending appeal. The case arises out of the Revel AC casino bankruptcy. In his majority opinion, Judge Ambro began, “We seldom focus on how to balance the four factors that determine whether to grant a stay pending appeal despite the practical and legal importance of those procedural standstills. So we take this opportunity to do just that.” (Entertaining mid-stringcite footnote: “Yes, we realize this is the same Circuit Court in the same year. Read on and realize that we are not immune from internal tensions in our opinions.”)

Joining Ambro was Krause; Shwartz dissented. Both opinions are strong. Arguing counsel were Jeffrey Cooper for the appellant and Jason Zakia for the debtor.

New opinions — a successful challenge to PA’s emissions plan, plus an arbitration-issue waiver

National Parks Conservation Ass’n v. U.S. E.P.A. — agency — vacate in part — Vanaskie

Three national environmental groups petitioned the Third Circuit to review the EPA’s approval under the Clean Air Act of Pennsylvania’s decision not to do more to limit emissions that cause atmospheric haze in national parks and wilderness areas. Today, the environmental groups won a partial victory when the court vacated the part of the EPA’s ruling that approved Pennsylvania’s analysis of “best available retrofit technology.” The court ruled that Pennsylvania’s analysis suffered from multiple flaws and that the EPA failed to give a sufficient explanation for overlooking those flaws.

Joining Vanaskie were Ambro and Shwartz. Arguing counsel were Charles McPhedran of Earthjustice for the environmental groups, Kate Bowers for the EPA, Robert Reiley for an intervenor state agency, and Chet Thompson for an intervenor power company.  Coverage of the oral argument here.

Goldman Sachs v. Athena Venture Partners — arbitration — reversal — Fuentes

Goldman Sachs pitched an investment to Athena using terms like terrific, low risk, and very safe. Athena invested $5 million and lost about $1.4 million. Athena initiated arbitration against Goldman, and, after a nine-day hearing, an arbitration panel ruled for Goldman.

During the arbitration, it was disclosed to the parties that one of the arbitration panel members had been charged with unauthorized practice of law. At the time, the panelist said it was a one-time oversight. Neither side investigated or objected at the time, but after the panel’s ruling Athena investigated and concluded that the panel member’s alleged misconduct was far more serious than disclosed. Athena moved to vacate the award, and the district court granted the motion. Today, the Third Circuit reversed, holding that Athena waived its objection because it should have known the full story before it lost the arbitration. The opinion criticized FINRA, the arbitration organization, for failing to catch the issues with the panel member.

Joining Fuentes were Ambro and Nygaard. Arguing counsel were Edward Posner of Drinker Biddle for Goldman and David Moffitt (his name is misspelled in the slip op.) of Saul Ewing for Athena.

Court grants en banc rehearing on applying first-filed rule to dismiss with prejudice

The Third Circuit just granted rehearing en banc in Chavez v. Dole Food.

The now-vacated panel opinion, upholding dismissal with prejudice of a civil suit based on the first-filed rule, is here, my summary is here. The panel was split, with Nygaard joined by Greenaway while Fuentes dissented.

Here’s the introduction from the panel dissent (I’ve omitted two footnotes):

More than two hundred plantation workers brought
this suit alleging their employers and certain chemical
companies knowingly exposed them to toxic pesticides over a
period of many years. As a result, they say, they have injured
kidneys, are infertile, and are at heightened risk of cancer.
Twenty years after first bringing suit, no court has heard the
merits of their claims. Because the Louisiana court dismissed
on procedural grounds, the Delaware District Court’s
dismissal of the plaintiffs’ claims—with prejudice—
effectively ends the plaintiffs’ lawsuit. The majority’s
affirmance of that decision, i.e., the dismissal with prejudice
of a duplicate claim filed in a second court, is not supported
by our caselaw and is contrary to the decisions of the only
other Courts of Appeals to have addressed the issue.

I agree with the majority opinion that the first-filed
rule applied to the plaintiffs’ successive filing in Delaware,
and, as such, that the District Court should have given the
Louisiana suit priority. But I do not agree that the first-filed
rule is a basis to terminate a claim that otherwise may be
prosecuted. That is not something we have ever held before; it
is contrary to our positions on successive litigation and
concurrent litigation in other contexts; and it is inappropriate
in light of the Supreme Court’s command that we must
adjudicate properly presented cases not heard elsewhere on
the merits. As our sister circuits have done in like cases, I
would vacate and remand for further proceedings.

Today’s order notes that Nygaard exercised his IOP 9.6.4 option as a senior judge who sat on the panel to sit on the en banc court.

My thanks to an alert reader from New York for emailing to alert me just minutes after the order posted to the court’s website.

Update: today’s grant makes 3 pending en banc cases, with Chavez joining Dennis (a capital-habeas appeal) and Langbord (the double-eagle-coins appeal).

New opinions — IDEA statute of limitations and 1983 favorable termination

G.L. v. Ligonier Valley School Dist. — education & disability law — affirmance — Krause

Judge Cheryl Krause, confirmed to the Third Circuit just last summer, already looks like a rising star. Her first opinions —  this prisoner civil-rights opinion in Young, this bar reciprocity opinion in NAAMJP, and especially this bankruptcy-mootness concurrence in In re: ONE2ONE Communications  — have been powerhouse efforts. Clear, thorough, and strong: Supreme-Court-shortlist caliber work, I’m starting to believe.

Today, the Court issued the latest Krause opinion, and it’s another tour de force. The case arose under the Individuals With Disabilities Act, and the appeal centered on how the IDEA’s confusingly drafted statute-of-limitations discovery rule works. The plaintiffs here, the school district, and the federal Department of Education as amicus each took a different position. After a careful analysis (the slip opinion runs 52 pages) of this issue of first circuit impression, the court sided with the government, holding that due process complaints under the IDEA must be filed within two years after the reasonable discovery of an injury.

Joining Krause were McKee and Greenaway. Arguing counsel were Charles Jelley for the students and parent, Christina Lane for the district, and Jennifer Rosen Valverde (her name is misspelled in the slip op.) of the Rutgers law school Special Education Clinic for amici. The opinion thanked the organizations led by the Rutgers clinic for “their helpful perspective and excellent briefing and argument.”


Bronowicz v. Allegheny County — prisoner civil rights — partial reversal — Greenaway

In order to recover for wrongful imprisonment under 42 U.S.C. 1983, a former prisoner must show that his challenge  to his underlying was favorably terminated. Today, the Third Circuit held that a 1983 plaintiff satisfied the favorable termination requirement even though the prior order vacating his sentence did not expressly state that the sentence was illegal.

Joining Greenaway were Fisher and Jordan. Arguing counsel were Robert Owsiany for the former inmate, Virginia Scott for the County, and Caroline Liebenguth for three defendant probation officers.

New opinions — an en banc puzzler and an ERISA case

US v. Lewis (en banc) – criminal – reversal – Rendell

Today, an en banc majority – or is it a plurality? – held that an Alleyne error at Jermel Lewis’s sentencing was not harmless. Previously, a divided panel had come out the other way (Fisher and Chagares majority, Rendell dissent) — link to my post on the panel opinion is here, link to my recent analysis of the court’s en banc cases here. A concurring opinion would have held that the error was structural so that proof of harm should not be required, while a dissent argued that the error was harmless because the defense at trial and sentencing did not contest the underlying factual issue.

A strange feature of the case is that the judges disagree about whether the lead opinion speaks for a majority or a plurality, but no one clears it up. There are three opinions:

  • the lead opinion by Rendell,
  • an opinion by Smith “concurring,” which is joined by McKee, Ambro, and (perhaps surprisingly) Jordan, and
  • a dissent by Fisher, joined by Chagares and Hardiman.

Fisher’s dissent refers to the lead opinion, prominently and repeatedly, as “the plurality.” But Smith refers to the lead opinion throughout as “the majority.” If the 4 judges who joined Smith opinion also joined the lead opinion, then the lead opinion was a majority (10 of 13). The fact that Smith’s opinion was identified as “concurring,” not “concurring in the judgment,” suggests that’s the case, as does the fact that the Smith opinion calls the lead opinion a majority opinion.

But the dissenters have a point: in substance, it looks to me like the Smith 4 agree with Rendell on the outcome but reject her rationale, and also Smith never expressly says that he is joining the lead opinion. Without the Smith 4, the lead opinion would indeed be only a plurality (6 of 13).

Majority or plurality? I’m not sure. Does it matter? Do en banc pluralities bind future panels? Or does the Third Circuit follow Supreme Court practice, where the outcome-joining opinion resting on the narrowest ground is the one that is precedential? If so, is that Rendell’s or Smith’s? I’m not sure of the answers to these questions offhand, either. It’s unfortunate the court left this sort of confusion by failing to set straight who joined what.

Another interesting feature of the case is that, according to the dissent’s footnote 1, the rationale adopted by the lead opinion was one advanced not by the defendant, but by an en banc amicus. (The amicus is Amachi, Inc., a religious child-mentoring program started by former Philadelphia Mayor Goode, represented by a big-firm associate.) Fisher expresses concern that this “allows defendants to take the tack most expedient at any point in their appeal.” I doubt it: what sane appellate counsel would make strategy choices based on such far-fetched contingencies? CA3 grants rehearing in about 1 out of 1000 decided cases, and the odds of amicus jumping in for you in an en banc are lower still. However, I do suspect that Amachi’s visible victory here may well embolden future interested parties to get involved as en banc amici, which strikes me as a good thing.

Arguing counsel were Paul Hetznecker for Lewis, Robert Zauzmer for the government, and Michael Addis of Cravath for amicus.


Board of Trustees v. C&S Wholesale -– ERISA — affirmance — McKee

 The court decided an ERISA case today.

McKee was joined by Hardiman and Scirica. Arguing counsel were Thomas Hart for the appellant and Susan Hoffman for the appellee.

New opinions — a 2255 blockbuster, strip searches for 12-year-olds, and an antitrust case

US v. Ross – criminal 2255 – vacate denial and instruct to dismiss — Jordan

In a major ruling, the Third Circuit today issued an opinion that appears to mean that 28 U.S.C. § 2255 does not permit prisoners to challenge an illegal conviction and sentence if the defendant also was convicted on other counts resulting in equal or greater concurrent sentences. I suspect the opinion is incorrect.

The defendant here, Edward Ross, was convicted on numerous counts, one of them being possession of a machine gun in violation of 18 USC § 922(o). On that count, Ross was sentenced to 10 years in prison plus a $100 special assessment. Ross also received 10-year sentences on other 6 counts, with all 7 sentences to run concurrently.

As to the machine-gun-possession charge, the jury was not required to find that Ross knew the gun was a machine gun. (It seems at least possible he didn’t know: the gun in question was made to be semi-automatic, and had been converted to automatic by changing the firing pin, and it was found in Ross’s residence, not in use.) Six other circuits have held that knowledge that the gun was a machine gun is an element of the crime. Today’s opinion said, “Given the opportunity, we might join our sister circuits,” and Ross “may be right that the 922(o) conviction is unlawful.”

Ross’s trial lawyer did not object to the instruction, and his direct-appeal lawyer did not raise the issue either. In a 2255 motion, he argued that prior counsel were ineffective for failing to raise the machine-gun-knowledge issue. “Sounds like a winner,” I would have said.

After the district court denied relief on prejudice grounds, the government argued on appeal  (it is not clear from the opinion whether they made the argument below) that Ross’s challenge to the 922(o) conviction was not even cognizable under 2255. Today, the Third Circuit agreed, ruling that, even if Ross’s trial and appellate counsel performed deficiently and even if Ross were prejudiced, he still would not be entitled to relief because his claim fails a threshold “custody” requirement.

Here was the panel’s reasoning. First, “[t]he plain text of 2255 provides relief only to those prisoners who claim the right to be released from ‘custody.’” Second, the special assessment that Ross received as a result of the 922(o) conviction did not satisfy this “custody” requirement because it was not severe. Third, any collateral consequences resulting from the 922(o) conviction did not satisfy “custody” because Ross failed to show any consequences uniquely attributable to that conviction. Thus, the court held that the relief Ross sought was not cognizable under 2255, and it vacated the district court’s order denying relief and directed the court to dismiss instead.

I have real doubts about this reasoning. Here is what 2255 says:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Here, the court reasoned as if 2255 said that a prisoner’s claims must each challenge his custody. But what 2255 says is that a prisoner in custody may move to vacate or correct his sentence. Ross is unquestionably a prisoner in custody on his federal sentence. So, at least as I read it, the text of 2255 does not support the reasoning in the opinion. And the opinion does not cite any previous case for the proposition that a prisoner who’s in custody can have his 2255 dismissed because his claims do not also meet a custody requirement.

So the Ross opinion strikes me as wrong — badly wrong, even — and warranting rehearing. But I haven’t read the briefs or pulled the cases cited, and today’s ruling was sought by top-flight AUSAs and embraced by 3 smart federal appellate judges, so maybe I’m missing something big.

Joining Jordan were Fisher and Shwartz. Arguing counsel were Penn Law student John McClam (with 3 Dechert lawyers on the brief, two of whom recently clerked for Third Circuit judges) for Ross and Robert Zauzmer for the government.


J.B. v. Fassnacht – juvenile civil rights – reversal – Fuentes

A 12-year-old was accused of doing something illegal and was ordered to be detained, analogous to an adult who is arrested and taken to jail before trial. The juvenile detention center where he was taken had a practice of strip-searching every child during intake. So the 12-year-old was put behind a shower curtain, and then, observed by an officer, he was “asked to turn around, drop his pants and underwear, bend over, spread his buttocks, and cough.”

No contraband was found. The accusation against the 12-year-old was later resolved when he agreed to write a letter saying he was sorry.

In 2011, the Supreme Court in Florence held that it was permissible to strip-search all arrestees before admitting them to a jail’s general population. But Florence was a case about strip-searching adults. Today, the Third Circuit held that Florence applies to juvenile, too.

Has a 12-year-old entered juvenile custody smuggling contraband in his or her rectum, ever? The opinion–oddly, in my view–does not say. Isn’t that relevant to whether these automatic, uniquely intrusive searches of children are warranted?

Instead, the opinion relies upon “the realities of detention, irrespective of age,” a study indicating that elementary-aged children are being recruited into gangs, the observation that “less invasive searches may leave undetected markings on the body indicating self mutilation or potential abuse in the home,” and the like, none of which strike me as compelling rationales for forcing 12-year-olds to strip naked for officers and expose their rectums.

Joining Fuentes were Nygaard and Roth. Arguing counsel were David MacMain for the 12-year-old and Kevin Allen for the defendants.


In re: Chocolate Confectionary Antitrust Litigation — antitrust — affirmance — Fisher

The Third Circuit affirmed the district court’s grant of summary judgment in favor of Hershey, Nestle, and Mars in this antitrust appeal, holding that the evidence was insufficient to create a reasonable inference of a price-fixing conspiracy.

Joining Fisher were Hardiman and Roth. Arguing counsel were Steve Shadowen and Laddie Montague Jr. for the appellants and William Cavanaugh Jr, David Marx, and Peter Moll for the chocolate makers.

New opinions — a capital habeas reversal and a bankruptcy affirmance

Saranchak v. Secretary — capital habeas — reversal in part — Smith

The Third Circuit today ruled that a PA death-row inmate was entitled to a new sentencing hearing due to ineffective assistance of counsel. The court concluded that the PA Supreme Court’s denial of penalty-phase relief was unreasonable and based on a factual premise that was clearly false. The court expressly relied on the ABA Guidelines to assess counsel’s performance. It found that the state court’s prejudice ruling also was unreasonable because it misstated the standard and failed to discuss most of the relevant evidence. The court also affirmed the denial of guilt-phase relief.

Joining Smith were Vanaskie and Roth. Arguing counsel were Stu Lev of the Federal Community Defender for the petitioner and Jennifer Peterson of PA AG for the state.


In re: ICL Holding Co. — bankruptcy — affirmance — Ambro

When a debtor files for bankruptcy and undergoes reorganization, there often aren’t enough assets to pay off all the debts, and the bankruptcy rules provide a clear hierarchy for which creditors get payed first. But 11 U.S.C. 363 also lets a debtor sell its assets outside of the bankruptcy reorganization. When it does, must any funds produced by the sale be distributed using the same hierarchy?

In a lucid opinion issued today, the Third Circuit upheld a 363 sale, rejecting arguments by the government that the sale upset bankruptcy’s priority rules.

Joining Ambro were Fuentes and Roth. Arguing counsel were Thomas Clark for the government and Anthony Clark of Skadden Arps for the debtor and purchasers,

New opinion — an ERISA case

N.J. Brain & Spine v. Aetna — ERISA — reversal — Chagares

The Third Circuit decided an ERISA case today. The opinion was only 9 pages long, making this one of my favorite ERISA opinions ever. (Oh, okay. The court held that a patient’s assignment of benefits to her healthcare provider conferred standing on the provider to sue for those benefits under ERISA.)

Joining Chagares were Hardiman and Shwartz. Arguing counsel were Eric Katz of Mazie Slater for the appellant, Edward Wardell of Connell Foley for the appellee, and Brian Hufford of Zuckerman Spaeder for amicus.

New opinions — David beats Goliath, plus a divided disability-rights ruling

Brand Marketing v. Intertek Testing — civil — affirmance — Hardiman

This appeal is a David vs. Goliath story. David wins.

Our David is David Brand, who founded a company — a “small” company, the opinion tells us up front — that makes heaters. Our Goliath is Intertek, a company — “an international product-testing company with more than 35,000 employees” — that Brand hired to test whether his heaters met U.S. safety standards. Intertek said the heaters passed, but in fact should not have, and, when the problems with the heaters came to light, the company that had been selling the heaters sued Brand. Brand lost and owed over $600,00.

So David (Brand) sued Goliath (Intertek). Goliath did what Goliaths do: after it bought the judgment that Brand owed to his former seller, Intertek then “aggressively tried to collect its judgment in the weeks leading up to trial, attempting, among other tactics, to transfer the judgment from the company to David Brand personally.” (Those facts don’t seem relevant to the issues on appeal, but perhaps were included for anyone who missed the small company/big company intro.)

After a trial, the jury ruled for Brand for over $6 million, including $5 million in punitives. Intertek appealed. On appeal, Intertek was represented by Bill Hangley of Hangley Aronchick, who is widely regarded as one of the top lawyers in the state. Brand was represented by a trial lawyer for the far smaller Pittsburgh firm of Meyers Evans.

Today, the Third Circuit affirmed. Among the court’s holdings are that Pennsylvania’s economic-loss doctrine did not bar Brand’s claim for negligent misrepresentation and that such misrepresentation occurred when Intertek prepared a test data sheet that it knew a third party would receive and rely on. The court also upheld the jury’s $5 million punitive-damages award.

Joining Hardiman was Roth, as well as Fisher in part. Fisher dissented on the issue of whether the evidence was sufficient to support the punitive-damages instruction. Arguing counsel were Brendan Lupetin for Brand and William Hangley for Intertek.

So David won this round too, but, given the panel split, the caliber of the losing party’s counsel, and the Supreme Court’s interest in policing punitives, I suspect the fight may not be done yet.


D.M. v. N.J. Dep’t of Educ. — disability & education — remand — Fisher

This appeal arises from a suit under the Individuals with Disabilities Education Act, brought on behalf of a student who wanted to continued attending certain classes despite a state ruling that the school was not authorized to provide those classes. The IDEA has a provision, the so-called “stay put” rule, that says (roughly) that IDEA litigants get to stay in their current education placement until the suit is decided. The key issue in this appeal is whether the stay-put rule applies, and the panel majority ruled that it did.

Joining Fisher was Jordan; Shwartz dissented. The legal argument is pretty evenly matched, but Fisher wins the typography battle hands down: his cites are italicized, Shwartz’s are underlined, to the horror of Butterick devotees everywhere. Arguing counsel were Jennifer McGruther for the state and Vito Gagliardi, Jr. for the student.

New opinion — reversing summary judgment in a prisoner civil-rights case

Young v. Martin — prisoner civil rights — reversal — Krause

The Third Circuit today reversed a district court ruling granting summary judgment against a prisoner alleging that his Eighth Amendment rights were violated. The opinion’s introduction gives this cogent summary:

Leonard G. Young, Jr., a Pennsylvania prisoner with a long history of mental illness, filed suit alleging that Appellees-Defendants1 violated his Eighth Amendment rights by securing him in a four-point restraint chair, naked, for fourteen hours, although he did not pose a threat to himself or others. Because we agree with Young that the District Court erred as a matter of law in granting summary judgment against him, we will vacate the judgment and remand for further proceedings.

The opinion also contains a significant discussion of a recent DOJ report on Pennsylvania’s misuse of solitary confinement on prisoners with serious mental illness or intellectual disability.

Joining Krause were McKee and Greenaway. Arguing counsel were Robert Ridge for the prisoner and Kemal Mericli for the AG.

New opinion — divided panel affirms summary judgment against teacher fired for anti-student blog posts

Munroe v. Central Bucks School Dist. — First Amendment — affirmance — Cowen

If you don’t remember the name, you might remember the facts: Nathalie Munroe was a school teacher who became national news when she was fired for referring to her students in blog posts as “the jerk,” “an obnoxious kid,” “utterly loathsome,” and the like. After she was fired, she sued the district, claiming that her speech was protected by the First Amendment. The district court granted summary judgment against her, and today a divided Third Circuit panel affirmed, holding that her speech was not constitutionally protected.

Joining Cowen was Restani by designation, with Ambro dissenting. That division — a senior judge and a judge sitting by designation against an active judge — suggests the odds of rehearing en banc are higher than normal. Arguing counsel were Stanley Cheiken for the fired teacher and appellate lawyer Kimberly Boyer-Cohen of Marshall Dennehey for the district.

A tsunami of new opinions

Six new opinions today! Plus 3 others from yesterday. I’m swamped so I’m keeping it short.

In re: Search of Electronic Communications — 4th Amendment — dismissal — Fuentes

The court dismissed this appeal by Congressman Chaka Fattah challenging a search warrant, holding that challenges to unexecuted warrants do not qualify for interlocutory appeal.

Schmigel v. Uchal — civil procedure — reversal — Krause

The court held that the notice requirement of Pennsylvania’s certificate-of-merit requirement for state professional malpractice suits is substantive and thus applies in a federal-court diversity suit. Rendell dissented.

Lincoln Benefit v. AEI Life — civil procedure — vacate — Fuentes

The court held that, in order to survive a motion to dismiss, a diversity-suit plaintiff need not allege the citizenship of each member of an unincorporated association, so long as it alleges complete diversity in good faith after a reasonable attempt to identify the members. Ambro concurred, joined by both members of the panel, to urge the Supreme Court to return to its earlier LLC-diversity approach.

Zahner v. Secretary — civil — reversal in part — McKee

The court held that federal law pre-empted a PA law that purports to make all annuities assignable and reversed a district-court ruling that annuities count as resources for purposes of Medicaid eligibility. Rendell dissented.

Reyes v. Netdeposit — class action — vacate — McKee

The court vacated a district court order denying certification of a consumer class on commonality and predominance grounds. Charles Becker argued on behalf of amici.

U.S. v. Doe — 2255 — remand — Ambro

The court remanded in this significant 2255 appeal, vacating the district court’s denial of Doe’s successor motion. The opinion is a glorious 50-page monument to the absurd complexity of habeas law.


Yesterday’s opinions:

Spady v. Bethlehem School Dist. — civil rights — reversal — Vanaskie

The court held that a defendant in a suit under 1983 was entitled to summary judgment because his conduct did not violate a clearly established constitutional right.

Washington v. Secretary — habeas — affirmance — Fisher

The court again affirmed a grant of habeas relief for allowing redacted introduction of a co-defendant’s confession, following a Supreme Court GVR.


In addition, the panel granted the appellant’s motion for panel rehearing in May’s Free Speech Coalition v. A.G., summarized here. Presumably a revised opinion is forthcoming.

New opinion — hearing required in 2255

United States v. Tolliver — 2255 — reversal — Greenaway

Today the Third Circuit vacated a district court ruling that had adjudicated a motion under 28 U.S.C. 2255 (the analog to habeas corpus for prisoners who were prosecuted in federal court) without holding an evidentiary hearing. The court remanded for a hearing and the opinion contains strong language supporting the need for 2255 hearings:

A district court considering a § 2255 motion “‘must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record.’”  Id. at 545 (quoting Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). In the IAC context, a movant need only “raise[] sufficient allegations” that his counsel was ineffective in order to warrant a hearing. Id. at 549.

Also the court did not apply plain-error review, even though the lack of a hearing was not raised in district court: ““It is irrelevant whether the Government or [movant] requested the hearing.'” And the only disputed facts went to prejudice, not deficient performance.

All that is likely to be helpful for many prisoners seeking hearings to challenge their federal convictions, but it was bad news for the prisoner here because the district court had granted her 2255 relief without a hearing.  Full disclosure: I am the prisoner’s CJA-appointed counsel.

Joining Greenaway were Fuentes and Nygaard. I argued for the prisoner, Robert Zauzmer argued for the government.

New opinions — bar-admission reciprocity and ERISA

NAAMJP v. Castille — constitutional law — affirmance — Krause

When I moved back to PA from NC back in 2008, I was admitted to practice in PA without taking the PA bar exam because I’d passed the NC bar and PA and NC have reciprocity. (Would I have moved here if I had to take the bar exam? Tough one.) Reciprocity makes sense because the effort required to re-learn areas of the law utterly irrelevant to your practice is a laborious, expensive waste for established lawyers.

Now, apparently there are some lawyers who feel especially strongly about that, and they belong to a group called the National Association for the Advancement of Multijurisdictional Practice (motto: “One bar exam is more than enough”). Said group, and two of its members from MD and NJ, sued the justices of the PA Supreme Court, alleging that PA’s lack of reciprocity with their states violates various constitutional provisions.

Alas, today NAAMJP lost on appeal, just as it had lost in district court. The opinion, appropriately, is a great little con-law refresher for those whose recollection of Conviser has dimmed.

Joining Krause are Chagares and Barry. The case was decided without argument.

For those interested, a sympathetic ABA Journal article on reciprocity challenges is here.


Mirza v. Insurance Administrator — ERISA — reversal — Fuentes

Today’s other decision is an ERISA case, and today that’s all I’ve got.


New opinions — NJ sports betting and civil rights

NCAA v. Governor of NJ — civil — affirmance — Rendell

Ted Olson vs. Paul Clement is the appeals-nerd equivalent of Ali-Frazier, so any case where they square off is sure to draw attention. So it was here. Today, the Third Circuit held that New Jersey’s sports-betting law violated federal law. Early news coverage by AP here and Legal Intelligencer here. Clement wins this round.

For a free oral-argument DIY CLE, the audio of the argument is here.

Joining Rendell was Barry; Fuentes dissented. Arguing counsel were Theodore Olson for the governor, Ronald Riccio for a trade association, Michael Griffinger for two state legislators, Paul Clement for the NCAA, and Peter Phipps for the US.

Update: coverage of the decision in New York Times here and Washington Post here.

Sprauve v. West Indian Co. — civil rights — reversal in part — Chagares

Today, the Third Circuit held that a company — once private, but now 100% government-owned — was a government entity for purposes of a civil-rights suit under 1983. The case was argued back in December.

Joining Chagares were Jordan and Shwartz. Arguing counsel were Karin Bentz for the plaintiffs and Micol Morgan for and Mark Hodge for the government defendants.

New opinions — a cyber-security win for the government, plus an ERISA appeal

FTC v. Wyndham Worldwide — agency — affirmance — Ambro

Wyndham Hotels was hacked 3 times, and over 600,000 consumers’ data was stolen. Among the Wyndham brands are Ramada, Super 8, Howard Johnsons, and Days Inn. The Washington Post lays out the facts here. The Federal Trade Commission sued Wyndham, alleging that its inadequate cyber-security was unfair to consumers. Wyndham moved to dismiss, and when that was denied it brought this interlocutory appeal, arguing that the FTC lacked authority to regulate cyber-security and that it lacked notice that its cyber-security practices were unlawful. Today, the Third Circuit affirmed in an opinion peppered with criticisms sharper than one normally sees directed at a Biglaw-represented party, such as this:

Wyndham posits a reductio ad absurdum, arguing that if the FTC’s unfairness authority extends to Wyndham’s conduct, then the FTC also has the authority to “regulate the locks on hotel room doors, . . . to require every store in the land to post an armed guard at the door,” Wyndham Br. at 23, and to sue supermarkets that are “sloppy about sweeping up banana peels,” Wyndham Reply Br. at 6. The argument is alarmist to say the least. And it invites the tart retort that, were Wyndham a supermarket, leaving so many banana peels all over the place that 619,000 customers fall hardly suggests it should be immune from liability under § 45(a).

Joining Ambro were Scirica and Roth. Arguing counsel were Eugene Assaf of Kirkland & Ellis (a former Weis clerk) for Wyndham and David Shonka for the FTC. The appeal had heavy amicus involvement as well.


Stevens v. Santander Holdings — ERISA — affirmance — Greenberg

The Third Circuit held today that, when a district court held that a denial of benefits was arbitrary and remanded to the plan administrator to reinstate short-term benefits and assess the employee’s eligibility for long-term benefits, and when it retained jurisdiction over the case, the district court’s decision was not yet final. CA3 thus dismissed the appeal for lack of jurisdiction.

Joining Greenberg were Greenaway and Krause. Arguing counsel were Patricia Smith of Ballard Spahr for the employer and Mark DeBofsky for the former employee.

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.


New opinion — a rare habeas-petitioner win

Programming note: I was in Charlotte last week for the National Federal Habeas Corpus Seminar, and I’m out of town this week visiting family, so I’m behind on my opinion summaries. Apologies, dear readers.

Lee v. Superintendent — habeas corpus — affirmance — Ambro

I’ve observed here and here before that the Third Circuit’s once-robust reversal rate in habeas cases cratered after 2011. That post used statistics through 2013; in 2014, the habeas- and 2255-reversal rate remained vanishingly low. I’m pretty sure that reversal-rate freefall is awful news for habeas petitioners overall — CA3 didn’t suddenly get more deferential to district-court habeas rulings. Instead, a lot of prisoners who would have won reversals on appeal a few years ago get affirmed now.

But the Court’s recent decision in Han Tak Lee’s case proves that not all habeas affirmances are prisoner losses. Lee was convicted in Pa. court of murdering his daughter by setting fire to the building where she slept. In his habeas petition, Lee alleged that his due-process rights were violated because the prosecution’s arson-expert testimony was junk science. That’s a legally creative claim, and creative claims almost always lose in habeas these days, but the circuit’s ruling in Lee’s prior appeal was law of the case and it gave him enough to win in district court and again on appeal.

It is often said that cases like this prove how well our legal system works, but that is absurd. Even after the prosecution’s key evidence was discredited, and even after Lee hit the lottery when he got appellate powerhouse Peter Goldberger to represent him, he still won only by the skin of his teeth. And he first alleged in federal court the gross unreliability of the prosecution’s evidence against him back in 2005, but he sat behind bars for almost another decade before his release. Han Tak Lee was in maximum-security prison, wrongfully convicted of killing his own daughter, for 24 years. As he told People earlier this month, “I lost all my dreams.”

Joining Ambro were Fuentes and Greenberg. Arguing counsel were Peter Goldberger for Mr. Lee and Matthew Bernal for the state.


New opinions — a child-sex suit against the voice of Elmo, and two cases a lot less likely to go viral

Well, it’s August, and that means clerkships are ending so chambers are cranking out a lot of opinions. After whole weeks without a published opinion back in the spring, this week has seen 1 Monday, 3 yesterday, and 3 more today. Happy days for CA3 fans.

Stephens v. Clash — civil — affirmance — Smith

Kevin Clash is “‘an internationally-known puppeteer and voice actor for children’s programming,’ best known for his role as the voice of Sesame Street‘s Elmo.” Sheldon Stephens alleged that Clash started a multi-year sexual relationship with him in 2004 when Clash was 44 and Stephens was 16. Stephens alleged that he did not become aware of the psychological harm he suffered until 2011, and he filed suit in 2013, 9 years after the sex began and 7 years after Stephens turned 18, but the district court dismissed the suit as untimely.

Today, the Third Circuit affirmed. The court held that the discovery rule applies,* but held the plaintiff’s claims were untimely anyway because, even if he did not recognize the extent of his injuries until later, he should have discovered that he was injured from the outset of the sexual “relationship.”

* The majority opinion says, “we hold that the discovery rule is applicable,” and refers to “this holding,” but in his concurrence Jordan asserts that this discussion is dicta because it is not necessary to the outcome.

Joining Smith were Jordan and Sloviter, with Jordan concurring separate to express doubt about the discovery holding. Arguing counsel were Stuart Mermelstein for the plaintiff and Michael Berger for the voice of Elmo.

In re: Semcrude — bankruptcy — Fisher — reversal

The Third Circuit’s introductory summary defies improvement by me:

Thomas L. Kivisto, co-founder and former President and CEO of SemCrude L.P., an Oklahoma-based oil and gas company, allegedly drove SemCrude into bankruptcy through his self-dealing and speculative trading strategies. SemCrude’s Litigation Trust sued Kivisto, and the parties reached a settlement agreement and granted a mutual release of all claims. One month later, a group of SemCrude’s former limited partners (collectively, “Oklahoma Plaintiffs”) sued Kivisto in state court, alleging breach of fiduciary duty, negligent misrepresentation, and fraud. Kivisto filed an emergency motion to enjoin the state action on the theory that the Oklahoma Plaintiffs’ claims derived from the Litigation Trust’s claims, which the U.S. Bankruptcy Court for the District of Delaware granted. On appeal, the U.S. District Court for the District of Delaware reversed, concluding that the claims were possibly direct and remanded. The Bankruptcy Court thereafter adopted the District Court’s order in its entirety and denied injunctive relief. Because we conclude that the claims are derivative, we will reverse.

Joining Fisher were Fuentes and Krause. Arguing counsel were Paul Bessette for Kivisto and Adam Schiffer for the Oklahoma plaintiffs. The case was argued back in December.

Devon Robotics v. DeViedma — civil — dismissal of interlocutory appeal — Krause

The Third Circuit dismissed this interlocutory appeal from denial of summary judgment, holding that it lacked jurisdiction. Civ pro nerds, rejoice! Remembering last month’s impressive equitable-mootness opinon, I’d say Judge Krause is already coming into her own as a procedure-law powerhouse.

Joining Krause were McKee and Greenaway. Arguing counsel were Gary Samms for the appellees and James Golden for the appellant.

New opinions — a questionable plea-ineffectiveness ruling, plus two civil-rights cases

US v. Fazio — habeas corpus — affirmance — Chagares

Cosmo Fazio is a non-citizen who pled guilty to cocaine distribution after his lawyer told him that, in light of the conviction, there was “a chance” he would be deported but in the lawyer’s opinion “he would not be.” Both the plea agreement and the plea colloquy said that “no one can predict to a certainty” what effect the conviction would have on his immigration status. Ten days after Fazio pled guilty, a new lawyer told him that deportation was not just possible, it was certain. Fazio immediately tried to take back his plea, and ultimately Fazio filed a 2255 motion arguing that his plea counsel was ineffective, which the district court denied.

Today, the Third Circuit affirmed, denying Fazio’s appeal. The court did not decide whether plea counsel’s performance was deficient, holding that Fazio was not prejudiced because the colloquy “cured” any error by counsel. (The court also enforced Fazio’s collateral-attack waiver, although the opinion suggests that it would not have enforced the waiver if it had found that the ineffective-assistance claim had merit.)

Chagares was joined by Ambro and Vanaskie. Arguing counsel were Almon Burke and Mark Goldstein for Fazio and Michael Ivory for the government.

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.


  • Here is the district court order denying Fazio’s motion to withdraw his plea, which describes the facts in greater detail than the CA3 opinion does; and
  • Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.
  • Here is the CA3 oral argument audio.


Santini v. Fuentes — civil rights — affirmance — Van Antwerpen

The court today revived a civil rights suit brought by a farmer against police who forcefully arrested him. The district court had granted summary judgment against the farmer, but the Third Circuit reversed in part, “emphasizing that . . . we must construe all facts and inferences in favor of the nonmoving party.”

Joining Van Antwerpen were Chagares and Krause. The case was decided without argument.

Disability Rights NJ v. Commissioner — civil rights — affirmance — Hardiman

The court today largely upheld New Jersey’s laws allowing non-emergency forcible medication of mentally ill persons in state custody without judicial process. The only persons with a right to judicial process before being forcibly administered psychotropic drugs are patients who are no longer subject to involuntary confinement but who are still in custody awaiting transfer to another facility. (Why the heck did NJ cross-appeal that?)

Joining Hardiman were Smith and Barry. Arguing counsel were Nathan Mammen of Kirkland & Ellis for the disability-rights group and Stuart Feinblatt for the state.

New opinion — Third Circuit rules against deeds recorders in fee-suit appeal

Montgomery County, Pa. Recorder of Deeds v. Merscorp — civil — reversal — Barry

In an appeal involving a battalion of heavy-hitting amici, the Third Circuit today ruled against a county deed recorder who sought millions in unpaid recording fees from an electronic mortgage-loan registration system. When homeowners transfer a mortgage interest, they have to record the transfer with the county and pay a fee. But banks and mortgage lenders figured out a way to avoid paying those fees when they transferred mortgage interests. A county recorder sued, arguing that the industry end-run around recording fees violated Pennsylvania law, and a district court agreed. The Third Circuit reversed, holding that Pa. law does not require all land conveyances to be recorded.

For appellate junkies, the most notable feature of the case was the impressive talent involved on behalf of various amici. Local firms involved on the industry side included Reed Smith, Fox Rothschild, K&L Gates, while amici on the recorder’s side included a long list of legal aid and consumer groups. In all, forty one lawyers in all appeared on the briefs!

Joining Barry were Chagares and Krause. Arguing counsel were Robin Brochin for the electronic registration system and Joseph Kohn for the county recorder.

“It’s a very rare thing when Michael Mukasey, Greg Craig, Walter Dellinger, Larry Thompson, Jamie Gorelick, Seth Waxman and Peter Keisler agree that a [Third Circuit] court decision siding with federal prosecutors is wrong”

The quote that forms the title of this post is by former acting solicitor general Neal Katyal in this article by Adam Liptak today in the New York Times. Katyal has filed a USSC cert petition on behalf of George Georgiou, whose securities-fraud conviction the Third Circuit upheld in January. The legal luminaries Katyal mentions, represented by fellow luminary Seth Waxman, have all joined an amicus brief seeking reversal.

The Third Circuit opinion is here and the amicus brief is here.

A key cert issue is whether Brady v. Maryland allows prosecutors not to turn over material exculpatory evidence if the defense could have found it themselves. Here, the Third Circuit (Greenaway with Chagares and Vanaskie) quoted its own 1991 precedent to say that Brady does not oblige the government to provide defendants with evidence they could obtain from other sources by exercising reasonable diligence. But the Third Circuit’s opinion did not mention the Supreme Court’s 2004 pronouncement in Banks v. Dretke that “Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material . . . . A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”

The SG’s cert response is due later this month.

New opinion — court upholds mortgage-loans litigation-class certification

In re: Community Bank of Northern Va. Mortgage Lending Practices Litig. — class action — affirmance — Jordan

Today the Third Circuit upheld a district court ruling certifying a nationwide litigation class in a mortgage-loan practices suit brought against a bank now owned by PNC Bank. The court rejected a laundry list of challenges by PNC to class certification, notably its argument that intra-class conflicts defeat adequacy of representation because the same counsel represent different sub-classes; that would have been a problem if it were a limited-fund settlement class, but it was no longer a problem as a litigation class with no limited fund. (Imagine my excitement to see the court cite Ortiz v. Fibreboard, the somewhat obscure mass-tort case that I wrote my law review note on [what! Lexis is charging 22 bucks to access my note?] way back when.)

Joining Jordan were Fisher and Greenaway. Arguing counsel were Martin Bryce of Ballard Spahr for the bank and Bruce Carlson and Roy Walters for the appellees.

En banc rehearing granted in double-eagle-coins case

Today the Third Circuit granted rehearing en banc in Langbord v. U.S. Treasury, the double-eagle-coins case. The April panel opinion was authored by Rendell and joined by McKee, with Sloviter dissenting. According to the order granting rehearing, Sloviter and Rendell both will participate in the en banc review.

The now-vacated panel opinion is here, my summary is here.


New opinion — a habeas procedural affirmance

Norris v. Brooks — habeas corpus — affirmance — Hardiman

One of the most important habeas corpus cases of the past decade or so was the Supreme Court’s ruling in Martinez v. Ryan, which held that ineffective assistance of counsel at the initial state post-conviction stage can excuse procedural default of a habeas claim of trial IAC. (In Pennsylvania, “initial” means PCRA proceedings in the Court of Common Pleas, as opposed to any appeals from denial of the PCRA.) One of the key questions after Martinez was how the case would apply retroactively to prisoners whose habeas petitions had already been denied. Last year, the Third Circuit in Cox v. Horn held that such prisoners could raise Martinez claims in a motion under FRCivP 60(b) for relief from judgment.

Today, the Third Circuit ruled that a district court did not abuse its discretion in denying a prisoner’s Martinez motion under Rule 60(b) because the district court had ruled that the procedural default arose not from an error made in initial state postconviction proceedings, but instead from an error made during the postconviction appeal.

Joining Hardiman were Rendell and Vanaskie. Arguing counsel were Arianna Freeman of the EDPA FCD for the prisoner and Susan Affronti of the Philadelphia DA for the Commonwealth.

New opinions — one on bankruptcy dischargeability, one on Medicare hospital-reimbursement

In re Bocchino — bankruptcy — affirmance — Van Anterwerpen

A stockbroker made two abysmal investment choices for his clients for which he pocketed big commissions. Here’s one of them, from today’s opinion:

The first investment involved an entity known as Traderz Associates Holding, Inc. (“Traderz”). Bocchino learned from a superior that Traderz “might go public” and that the endeavor was supported by “some commitment” from a
popular fashion model. Based solely on these facts, and without any other independent investigation into the quality of the entity, Bocchino immediately sought investment from clients. Bocchino received over $40,000 in commissions from Traderz sales.

Traderz “turned out to be a fraudulent venture” and “the anticipated value of the investments vanished.” So the SEC sued him and he ended up with $178,000 judgments against him. He then declared bankruptcy under Chapter 13, but the SEC argued that much of the judgment amounts were non-dischargeable. The bankruptcy court sided with the SEC, as did the district court, and today the Third Circuit affirmed, holding that the debts were nondischargeable because the broker’s gross recklessness established scienter and he proximately caused his clients’ losses.

Joining Van Antwerpen were Chagares and Krause. The case was decided without argument.

Geisinger Community Medical Ctr. v. Secretary HHS — agency — reversal — Fisher

To the health-law diehards out there, my apologies. The key law in this case is 42 U.S.C. 1395ww(d)(8)(E)(i). That cite alone is a pretty decent hint that interest in this case is apt to be narrow. A sophisticated grasp ruling eludes me, I must confess, but it has something to do with how Health & Human Services classifies hospitals when it decides how much to reimburse them for Medicare-treatment costs. The hospital won, and an HHS regulation failed Chevron, that much I know.

Joining Fisher was Chagares; Cowen dissented. Arguing counsel were Joseph Glazer for the hospital challenging its classification and Tara Morrissey for the government.




New opinion — court vacates class certification in sunroof suit against Volvo

Neal v. Volvo Cars — civil class action — reversal — Smith

Today the Third Circuit vacated a district-court ruling granting class certification in a consumer class action brought against Volvo alleging defective sunroof drainage. The court directed the district court to “define the class membership, claims, and defenses, and so that it may rigorously analyze predominance in the first instance.”

Joining Smith were Chagares and Hardiman. Arguing counsel were Peter Herzog III for Volvo and Eric Katz of Mazie Slater for the class plaintiffs.

New opinion — an equitable-mootness reversal and a call to abolish it

In re: ONE2ONE Communications — bankruptcy — reversal — Greenaway

A company filed for Chapter 11 bankruptcy reorganization. Over one creditor’s objections, the bankruptcy court confirmed the reorganization plan. The creditor appealed to the district court, which ruled that its appeal was equitably moot. The creditor then appealed to the Third Circuit, urging the court to overrule its prior adoption of the equitable mootness doctrine.

Today, the Third Circuit reversed. The panel could not overrule prior circuit precedent, but the court held that the district court’s application of the doctrine was an abuse of discretion.

Joining Greenaway were McKee and Krause. Krause filed a long and thoughtful concurrence urging the en banc court to abolish or at least reform the “legally ungrounded and practically unadministerable” equitable mootness doctrine. Arguing counsel were Courtney Schael for the creditor and Michael Sirota for the debtor.

New opinion — court denies an interesting technical challenge to deportation

Paek v. A.G. — immigration — denial — Rendell

Ka Paek was admitted to the U.S. as a lawful permanent resident — conditionally at first, then permanently — because his father was a citizen in the military. Fourteen years later, after he also had married a U.S. citizen, he was convicted of robbery and related charges and the government decided to deport him. Paek challenged removal, arguing he was eligible for a waiver of inadmissibility. The waiver may not be granted to an “alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,” but Paek argued that it could be granted because he was “admitted to the United States” as a conditional resident, and only became a permanent resident after his admission. Today, the Third Circuit rejected Paek’s argument and dismissed his appeal because even a conditional resident is “admitted for permanent residence” under the INA.

Joining Rendell were Hardiman and Vanaskie. Arguing counsel were Ben Winograd for the deportee and Bernard Joseph for the government.

New opinion — a CA3 opinion applying the required-records exception to the 5th Amendment

US v. Chabot — tax / criminal — affirmance — Restani

During an investigation of overseas bank accounts, the IRS issued a summons requiring Eli Chabot to turn over certain bank records that a federal regulation required him to keep. Chabot opposed the summons, invoking his Fifth Amendment privilege against self-incrimination. The district court ruled for the IRS, and today the Third Circuit affirmed. Joining six other circuits, the court held that the records fell within the required-records exception to the Fifth Amendment, even though Chabot argued that the information in the records was almost exactly what the government needed to charge them with felonious failure to report.

Joining Restani, who sat by designation, were Ambro and Cowen. (That’s one active, one senior, and one visiting, illustrating the circuit’s judicial emergency.) Arguing counsel were Richard Levine for the taxpayer and Robert Branman for the government.

New opinions — court upholds state election-disclosure law, plus a trademark case

Delaware Strong Families v. Attorney General — First Amendment / elections — reversal — Greenaway

A group that calls itself Delaware Strong Families (mission: “to rebuild a culture of marriage, family and freedom”) wanted to distribute a voter guide without having to reveal whose money was funding them. A state law required such disclosure. DSF sued, alleging that the disclosure law was unconstitutionally overbroad, and the district court granted them a preliminary injunction. Today, the Third Circuit reversed, holding that, because the disclosure law is constitutional as applied, DSF was not entitled to an injunction.

Joining Greenaway were McKee and Krause. Arguing counsel were Jonathan Cedarbaum of Wilmer Hale for the state and Allen Dickerson for the group. The issue, the counsel and amici involved, and the fact that the group filed similar suits in two other jurisdictions suggests to me that a cert. petition is on the way.

Arrowpoint Capital v. Arrowpoint Asset Management — trademark– reversal — Jordan

A financial-services corporation with Arrowpoint in its name sued several other investment-related companies with Arrowpoint in their names, alleging trademark infringement. The district court denied an injunction, but today the Third Circuit vacated, concluding that the ruling below rested on “an overly narrow interpretation of the kind of confusion that is actionable.”

Joining Jordan were Smith and Sloviter. Arguing counsel were Corby Anderson for Arrowpoint and Lewis Prutzman for the other Arrowpoints.

New opinions — the post-vacation marathon catch-up edition

I was on vacation last week. I had planned to keep posting on new opinions, diehard CA3 enthusiast that I am, but I ended up assisting a colleague on an urgent habeas case instead. So now I’ve got serious some catching up to do. Here goes, starting with today’s opinion and working back …

United States v. Centeno — criminal — reversal — Shwartz

The Third Circuit today vacated two criminal convictions: one because the prosecutor’s closing argument sought conviction on a basis not charged in the indictment and thus resulted in an improper constructive amendment, the other because one count of conviction violated double jeopardy because that count was a lesser-included offense of another count of conviction (the defendant failed to object at trial; the government confessed error on appeal). The panel rejected sufficiency-of-the-evidence challenges.

Joining Shwartz were Fisher and Jordan. Arguing counsel for one co-defendant was Brett Sweitzer of the EDPA FD, for the other Elizabeth Plasser Kelly; arguing for the government was Denise Wolf.

Perelman v. Perelman — ERISA — affirmance — Vanaskie

The Third Circuit affirmed district-court rulings that an ERISA plaintiff lacked standing to raise certain claims and was not entitled to attorney’s fees. Vanaskie was joined by Ambro and Shwartz. The case was decided without argument.

Evankavitch v. Green Tree Servicing — consumer — affirmance — Krause

A consumer win in a debt-collection appeal, cogently summarized in the Third Circuit opinion’s opening paragraph:

Under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., a debt collector is liable to a consumer for contacting third parties in pursuit of that consumer’s debt unless the communication falls under a statutory exception. One of those exceptions covers communication with a third party “for the purpose of acquiring location information about the consumer” but, even then, prohibits more than one such contact “unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.” 15 U.S.C. § 1692b. In this appeal following a jury verdict and judgment entered against a debt collector for repeated contact with third parties, we consider a matter of first impression among the Courts of Appeals: whether the burden in such a case is on the debt collector to prove or the consumer to disprove that the challenged third-party communications fit within § 1692b’s exception for acquisition of location information. We conclude that the debt collector bears that burden and will therefore affirm.

Joining Krause were Fuentes and Fisher. Arguing counsel were Deepak Gupta of D.C. appellate boutique Gupta Wessler for the debtor and David Bird of Reed Smith for the debt collector.

US v. Small — criminal — affirmance — Chagares

Sometimes, the line between clever and stupid is murky. Kevin Small was serving a state prison sentence, and when that sentence was over he was to be handed over to serve a federal sentence for tax fraud. So he arranged for a fake federal court order purporting to vacate his federal sentence to be sent to the state prison. I never would have believed that that would work, but it did. Clever? Stupid? Both?

Anyway, the issue on appeal was whether Small’s gambit amounted to the federal crime of escape, which normally applies to an escapee from federal custody. The court held that it did. Poor Small now has 5 years for escape tacked onto his 11+ years for tax fraud.

Joining Chagares were Ambro and Vanaskie. Arguing counsel were Eleni Kousoulis for Small and Christy Fawcett for the government.

US v. Fountain — criminal — affirmance — Krause

In a consolidated tax-fraud appeal, the Third Circuit affirmed. The court rejected a host of challenges to the convictions and sentences. The main significance of the case appears to be that it clarifies the standard for criminal liability under the Hobbs Act for defendants prosecuted for acting under color of official right.

Joining Krause were Fuentes and Fisher. Arguing counsel for the defendants were Julie McGrain, Lawrence Bozzelli, and Daniel Siegel, while Joseph Khan argued for the government.

Trinity Wall Street v. Wal-Mart — corporate governance — reversal — Ambro

In a high-profile shareholder-suit appeal, the Third Circuit ruled that Wal-Mart was allowed to block one of its shareholders from submitting a proposal for shareholder vote that would have required Wal-Mart to re-evaluate its sale of high-capacity guns.

Vanaskie joined Ambro’s 60-page majority opinion. Krause concurred in the judgment, joined by Vanaskie in part. Arguing counsel were Theodore Boutrous, Jr. of Gibson Dunn for Wal-Mart and Joel Friedlander for the shareholders.

US v. Edwards — criminal — reversal — Smith

The Third Circuit vacated a criminal conviction because the prosecution violated the 5th Amendment by repeatedly referring to the defendant’s post-arrest, post-Miranda silence during the trial and closing arguments. The government conceded the error on appeal but argued unsuccessfully that it was harmless because the court gave a curative instruction. The court held that the instruction did not make the error harmless because it only came after the court had overruled the defendant’s contemporaneous objection and because it was contradicted by other instructions.

Joining Smith were McKee and Scirica. Arguing counsel were Alvin Entin for the defendant and Nelson Jones for the government.

American Farm Bureau v. US EPA — environmental — affirmance — Ambro

The Third Circuit upheld a 2010 EPA regulation limiting discharge of pollution into the Chesapeake Bay. The long opinion concludes thus:

Water pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come). Any solution to it will result in winners and losers. To judge from the arguments and the amici briefs filed in this case, the winners are environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers. The losers are rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA. Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.

Joining Ambro were Scirica and Roth. Arguing counsel were Richard Schwartz for the polluters, J. David Gunter II for the EPA, John Mueller for environmental intervenors, and Christopher Pomeroy and Steven Hann for municipal interventors.

US v. Lowe — criminal — reversal — McKee

The Third Circuit reversed the denial of a motion to suppress evidence, holding that (1) the defendant was seized when the officers approached him and ordered him to take his hands out of pockets and (2) the officers lacked reasonable suspicion when they seized the defendant.

Joining McKee were Greenaway and Krause. Arguing counsel were Robert Epstein for the defendant and Robert Zauzmer for the government.

 Jensen v. Hessler — consumer — affirmance — McKee

The Third Circuit held that a false statement in a debt-collector communication is actionable under the FDCPA only if it is material. The court held that listing the wrong name for a court clerk on a subpoena was not material and affirmed.

Joining McKee were Rendell and Fuentes. Arguing counsel were Sergei Lemberg for the debtor and Mitchell Williamson and Lauren Burnette for the debt-collectors.


Supreme Court denies stay of Third Circuit contraception-coverage ruling

Lyle Denniston had this post at Scotusblog yesterday which begins:

Continuing to make sure that female employees and students have access to birth control, but that religious non-profit organizations where those women work or study do not have to provide it, the Supreme Court took action Monday on a case that is developing for next Term.

In a two-page order, the Court turned aside requests by Roman Catholic colleges, charities, and other non-profits in Pennsylvania to keep on hold a ruling by the U.S. Court of Appeals for the Third Circuit, rejecting those groups’ challenge to the Affordable Care Act’s contraceptive mandate.   Justice Samuel A. Alito, Jr., had temporarily put that ruling on hold last April until further legal papers were filed, but had taken no further action since.

The order further describes how the Third Circuit ruling applies while the cert petition remains pending.

The Third Circuit case is Geneva College v. Secretary, decided in February; my coverage of the circuit decision is here.

Court reverses dismissal of challenge to drug-patent settlement

King Drug Co. v. Smithkline Beecham — patent — reversal — Scirica

In 2013, the Supreme Court held in FTC v. Actavis that, when the holder of a drug patent sues a competitor for patent infringement but then settles that suit by making a payment to the alleged infringer — a “reverse payment” — such a payment can violate antitrust laws.

Today, the Third Circuit held that the holding of Actavis applies not only to reverse payments in the form of cash, but also reverse payments in a non-cash form, where the patent holder relinquishes its future right to compete with the alleged infringer by making an authorized generic drug.

Joining Scirica were Ambro and Roth. Arguing counsel were Bruce Gerstein for the appellants, Mark Hegedus for the FTC as amicus, Barbara Mather of Pepper Hamilton for the patent-holder, and Jay Lefkowitz of Kirkland & Ellis for the alleged infringer.

Early coverage in New Jersey Law Journal here and the WSJ Pharmalot blog here.

“How many federal prisoners have ‘strong Johnson claims’ (and how many lawyers will help figure this out)?”

In the other big Supreme Court case today, the Court held in Johnson v. U.S. that the residual clause of the Armed Career Criminal Act statute is unconstitutionally vague.

That’s big news for the Third Circuit (and every other federal court) because it’s going to mean another big round of criminal sentencing upheaval as courts wrestle with how the decision applies to past sentences.

The title of this post comes from Berman’s important post today on Sentencing Law &  Policy today, which raises critical practical post-Johnson questions: who is going to put in the work to find the inmates with Johnson claims, and then who is going to represent them? He writes:

…. I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in feder[a]l prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid.

And in another post today, Berman makes this provocative point:

The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

It will be interesting to see whether Johnson helps nudge courts like the Third Circuit to catch up.

New opinion — an employee FMLA win in “a sad case”

Hansler v. Lehigh Valley Hospital Network — employment — reversal — Fuentes

The Third Circuit today ruled that the district court erred when it dismissed a former employee’s complaint under the Family Medical Leave Act based on an invalid request for leave, holding that the FMLA required the employer to give the employee a chance to cure any deficiencies.

Ambro joined the panel majority; Roth dissented, beginning, “The majority fashions a new rule to fit a sad case.” Arguing counsel were Samuel Dion for the employee and former Greenberg clerk Andrea Kirshenbaum of Post & Schell (mistakenly listed as Post & Schnell in the opinion) for the employer.

Supreme Court grants cert. to resolve PLRA circuit split that Third Circuit recently joined

The Supreme Court this morning granted certiorari to decide the PLRA inmate-filing-fee-stacking issue that the Third Circuit ruled on in April in Siluk v. Merwin. My post on the panel ruling, which noted the circuit split is  here. The grant came in Bruce v. Samuels, 14-844, from a D.C. Circuit case that came out on the other side of the split, ruling against the prisoner.

The question presented:

Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner’s monthly income regardless of the number of cases or appeals for which he owes filing fees.

It does not appear that the county petitioned for cert in Siluk.

New opinions — CA3 hands Philly CHU a huge win; plus an insurer punitive-damages win

In re: Commonwealth’s Motion to Appoint Counsel Against or Directed to Defender Association of Philadelphia — civil procedure — consolidated cases: affirming some, reversing some — Fuentes

The Third Circuit today rejected the Philadelphia D.A.’s effort to block the Capital Habeas Unit  of the Federal Community Defender in Philadelphia (“the CHU”) from representing the CHU’s capital clients in state court. It is a significant win for the CHU and for Pennsylvania’s death-row inmates.

[Full disclosure: I was an attorney in the Philadelphia CHU before opening my current practice, and I continue to represent capital inmates in PA.]

The CHU’s basic mission is to represent capital clients in federal habeas corpus litigation in federal court. In theory, habeas litigation starts after state-court litigation is all over, but in practice it is common for federal habeas litigants to return to state court to exhaust issues that were missed earlier. When federal habeas petitioners return to state court to exhaust their federal claims, the CHU continues to represent them.

And the CHU’s representation has been uniquely effective — PA has a big death row, but not a single capital inmate has been executed against his will since the death penalty was reinstated in 1976. (Three inmates have been executed who dropped their appeals and volunteered for execution.)  And that drives some prosecutors bananas.

Those prosecutors (along with recently retired PA Supreme Court Chief Justice Castille) have gone to war to try to block the Philly CHU from appearing in state court. The latest battle in that war is this case. The Commonwealth and various counties asked state judges to block the CHU from representing their clients in state court. The CHU — represented by Wilmer and Pepper Hamilton — fought back, removing the 7 cases to federal court and then asking the federal courts to dismiss. The district courts split.

Today, a unanimous panel held that the CHU’s removal to federal court was proper, that the prosecutors’ efforts to disqualify the CHU were pre-empted by federal law, and that the CHU was entitled to dismissal. If the Commonwealth doesn’t seek cert I’ll eat my keyboard.

Joining Fuentes were McKee and Greenaway. McKee also concurred separately. Arguing counsel were Hugh Burns of the Philadelphia D.A. for the Commonwealth and Paul Wolfson of Wilmer for the CHU.

McKee’s concurrence begins:

Although it does not alter our legal analysis of the issues before us, it is difficult not to wonder why the Commonwealth is attempting to bar concededly qualified defense attorneys from representing condemned indigent petitioners in state court. A victory by the Commonwealth in this suit would not resolve the legal claims of these capital habeas petitioners. Rather, it would merely mean that various cash-strapped communities would have to shoulder the cost of paying private defense counsel to represent these same petitioners, or that local pro bono attorneys would have to take on an additional burden. And it would surely further delay the ultimate resolution of the petitioners’ underlying claims.

And concludes:

Though this dispute has been cloaked in claims of state authority and appeals to principles of federalism, I am unfortunately forced to conclude that this suit actually arises out of simple animosity or a difference in opinion regarding how capital cases should be litigated. Given the costs of capital litigation and the very real stakes for the petitioners in these cases, it is extremely regrettable that this debate has now played out in our judicial forum.

An extraordinary case.

Wolfe v. Allstate Property — insurance — partial reversal — Rendell

The Third Circuit today decided an interesting appeal involving insurance coverage of punitive damages. Under Pennsylvania law, a person cannot insure herself against punitive damages. Here, a person insured by Allstate got drunk rear-ended Wolfe. Wolfe sued, and Allstate made a low settlement offer. At trial, the jury awarded compensatory damages (which Allstate paid) and $50,000 punitive damages (which only the insured owed because the policy did not cover punitive damages). Wolfe agreed not to collect the punitive damages from the insured, and in exchange the insured assigned his rights against Allstate to Wolfe.

Wolfe then sued Allstate for breach of contract and bad faith. The gist of the suit was that Allstate’s lowball settlement offer prevented settlement and therefore wrongly exposed the insured to a punitive-damages judgment. After a trial, the jury awarded Wolfe $50,000 in punitive damages.

Today, the Third Circuit vacated the punitive damages award, predictively applying Pennsylvania law to hold that punitive damages awarded in an earlier personal-injury suit may not later be recovered in a breach-of-contract or bad-faith suit against the insurer.

Joining Rendell were Jordan and Lipez CA1 by designation. Arguing counsel were William Carlucci for Wolfe and Marshall Walthew (a former Sloviter clerk) of Pepper Hamilton for Allstate.

The unsealed part of yesterday’s sealed Fourth Circuit opinion is all about the Third Circuit

How Appealing readers will have noted this post late last night:

Fourth Circuit issues all but footnote 10 of panel’s opinion under seal, which at least allows the judges to argue over footnote 10’s propriety: It’s thankfully quite rare for a federal appellate court to issue an opinion under seal. It is even more rare for an opinion to be issued under seal except for one footnote. And the reason that footnote wasn’t kept under seal is because it was the subject of a concurrence in part (devoted to explaining why the author didn’t join in the footnote) and a concurrence by the third judge on the panel in strong defense of the footnote.

The opinion does not clearly explain why it is sealed; the appeal appears to arise from a federal criminal prosecution of a Dead Man Incorporated (a Maryland prison gang) member (indictment news release here).

CA3blog readers may be interested to see that much of the unsealed part of the opinion is a discussion of a Third Circuit ruling, United States v. Bonner, 363 F.3d 213 (3d Cir. 2004). The unsealed part of the CA4 panel opinion expresses surprise that the government failed to confess plain error. The dissenting CA4 judge cites Judge Smith’s concurrence in Bonner noting that judges should rarely criticize a legitimate exercise of prosecutorial discretion. The concurring CA4 judge, the irrepressible Senior Judge Davis, counters that actually Judge Smith approved dissenting Judge McKee’s “full-throated”  criticism of the prosecution in Bonner, and says:

Unlike judges, such as our concurring friend, who apparently believe it is never appropriate for those of us in the Judicial Branch to express reservations or disapproval of manifestly irregular, if not illegal, “strategic choices” by prosecutors, I believe judges need to say more, not less, to the political branches about the serious deficits in our criminal justice system. Judges McKee and Smith plainly agree . . . .

Don’t see that every day.

Third Circuit reversed in Facebook-threats case

The Supreme Court today reversed the Third Circuit in Elonis v. United States, holding that it was error to convict Elonis without proving that the defendant had a culpable mental state with respect to whether the statement was a threat.

The Supreme Court opinion is here, the now-reversed CA3 opinion is here, and my prior coverage is here and here.

Tough day for the Third Circuit.

Supreme Court summarily reverses Third Circuit on qualified immunity

The Supreme Court today summarily reversed a 2014 Third Circuit ruling in a prisoner-rights suit. A divided CA3 panel had held that prison officials were not entitled to qualified immunity in an Eighth Amendment suit brought by the estate of a prisoner who had committed suicide. The Supreme Court, in a unanimous per curiam opinion, reversed and held that there was no clearly established right to proper implementation of adequate suicide prevention protocols. USSC assumed that CA3 was correct that circuit precedent can clearly establish a right when that precedent conflicts with other circuits, but ruled that CA3 was wrong about what its own precedent held.

The case was Barkes v. First Correctional Medical in the Third Circuit (circuit opinion here, my summary here), and Taylor v. Barkes in the Supreme Court (opinion here).

New opinion — the “F*** Medicare” case

US v. Kolodesh — criminal — affirmance — Jordan

The Third Circuit today affirmed the conviction and sentence of a defendant convicted of Medicare fraud. The defendant raised a blizzard of different challenges on appeal, but the one the opinion seemed to relish the most was an argument that prosecutor committed misconduct by using a defendant’s recorded statement that “We have to f*** them over this time.” The defendant’s brief termed this the “F*** Medicare Statement,” a phrase the opinion repeated four times in denying the claim.

The opinion repeatedly noted errors and omissions by Kolodesh’s trial and appellate counsel: raising new contentions in the reply brief, repeatedly failing to contemporaneously object, challenging the accuracy of a transcript but “seem[ing] to forget, however, that he stipulated at trial to the truth and accuracy of the transcripts,” twice waiving appellate arguments through cursory briefing, misstating the record, and twice “simply rearguing the weight of the evidence, without pointing to anything that shows the District Court clearly erred.” Coming on the heels of the harsh Lehman Brothers opinion, I wonder if we’re seeing a trend towards a court less reticent about calling out lawyers.

Joining Jordan were Chagares and Barry. The case was decided without oral argument.

New opinion — a reluctant denial of immigration review

Sesay v. Attorney General — immigration — affirmance — Krause

The Third Circuit today held that petitioners who aided terrorist groups are ineligible for asylum even if they acted only under duress. The panel acknowledged that Musa Sesay was himself a victim of terroristic violence who faced “regular beatings and the barrel of a gun,” and “resisted when possible and escaped when he could.” Although “sympathetic to Sesay’s plight,” and “recogniz[ing] the harsh consequences of our holding,” the court denied the petition for review.

Joining Krause were Rendell and Smith. Arguing counsel were Thomas Massucci for the petitioner and Jeffrey Menkin for the government.

New opinion — deciding what “overnight” means

Bonkowski v. Oberg Indus. — civil — affirmance — Cowen

A patient was admitted to a hospital for treatment after midnight and, after comprehensive testing, was released over 14 hours later. The patient was fired from his job, allegedly for being absent due to his hospital visit. He sued under the FMLA, which protects employees from retaliation for qualifying absences, including “overnight” hospital stays. Today, a divided Third Circuit panel ruled that when a patient is admitted and discharged on the same calendar day, his treatment is not “overnight” and thus does not trigger FMLA protection.

Joining Cowen was Greenberg; Fuentes dissented. Arguing counsel were Tiffany Waskowicz for the patient and Erin McLaughlin for the employer.

New opinion — bankruptcy structured dismissals approved by divided panel

In re: Jevic Holding Corp. — bankruptcy — affirmance — Hardiman

The holding of today’s lone case is crisply summarized in the introduction:

This appeal raises a novel question of bankruptcy law: may a case arising under Chapter 11 ever be resolved in a “structured dismissal” that deviates from the Bankruptcy Code’s priority system? We that, in a rare case, it may.

Hardiman was joined by Barry and by Scirica in part. Scirica dissented in part: he would have rejected the structured dismissal here and reversed. Arguing counsel were Jack Raisner for the appellants, Christopher Landau of Kirkland (a Scalia and double-Thomas clerk) for appellees, and Wendy Cox of the DOJ for the US as amicus.

New opinion —

In re Grand Jury — criminal — affirmance — Cowen

The Third Circuit on Friday affirmed a district court order holding a corporation in contempt for failing to comply with a grand jury subpoena. The sole owner and employee of the corporation had asserted a Fifth Amendment self-incrimination challenge to the subpoena. In a footnote, the court mentioned that nothing in Hobby Lobby suggests that the Fifth Amendment applies to corporate custodians.

Joining Cowen were Fisher and Chagares. Arguing counsel were Damian Conforti of Podvey Meanor for the corporation and John Romano for the government.

Court upholds core of federal porn-records law

Free Speech Coalition v. Attorney General — First Amendment — partial affirmance — Smith

The Third Circuit today rejected First Amendment facial and as-applied challenges to federal statutes that require any producer of pornography to maintain records listing the name and birth date of each performer. The Court rejected challenges based on the fact that the law, intended to combat child pornography, applies to (more or less) all sexually-explicit visual materials, including purely private and noncommercial productions (such as “sexting” between consenting adults) and those with “clearly mature” performers. The court left the door open to future as-applied challenges involving private productions or clearly mature performers.

Today’s ruling was not a total defeat for the laws’ challengers, as the court struck down a provision allowing warrantless searches of the records and remanded for reconsideration of another provision that the records be stored in an office open 20 hours per week.

Joining Smith were Rendell and Scirica. Arguing counsel were Michael Murray for the challengers and Anne Murphy for the government.

Early blog coverage of the opinion here, H/T How Appealing.

New opinion — upholding denial of overtime pay

Resch v. Krapf’s Coaches — civil — affirmance — Shwartz

The Third Circuit today affirmed a summary-judgment ruling against the plaintiffs in a case involving unpaid overtime brought under the Fair Labor Standards Act and related state law. The court held that the plaintiffs, drivers for a shuttle-bus service, were not covered by the FLSA’s overtime-pay requirement because some of their routes were interstate.

Joining Shwartz were Ambro and Vanaskie. Arguing counsel were Andrew Santillo of Winebrake & Santillo (nice website) for the drivers and Randall Schauer of Fox Rothschild for the company.

More on yesterday’s claim-forfeiture opinion in light of How Appealing’s post

I posted yesterday about Lehman Bros. v. Gateway Funding, a provocative decision that threw out an appellant’s claim for failure to include the relevant transcript.

Yesterday evening, Howard Bashman posted a lengthy comment critical of the decision on How Appealing. Bashman’s post describes the ruling as “harsh” given that the failure to include the transcript was a minor transgression that did not disadvantage the panel because the appellee filed the transcript. He suggested the panel might have been wiser to grant oral argument so it could “deliver[] in-person a message that likely would not be forgotten for quite some time, if ever,” and:

Instead of deeming the issue forfeited, the panel could have simply ordered the appellant to reimburse the appellee for the costs of obtaining and providing the transcript to the court. And the panel could have imposed far more substantial sanctions if the panel believed that any effort to deceive the panel was intentional.

Bashman noted the concern that the ruling could lead to unfair results in future cases:

In a footnote, the appellate court notes that it probably would have reached the same outcome even if the appellant had provided the necessary transcript, whose existence the appellant claims not to have been aware of (although the Third Circuit questioned the credibility of this assertion). Nevertheless, because the panel’s actual holding is that the appellant’s failure to provide the transcript forfeited the issue, in a subsequent case this holding could operate to the detriment of a party that in fact truly was unaware of the existence of the transcript.

He closed:

In the past, the Third Circuit had been hesitant to impose significant sanctions for relatively minor transgressions. Today’s ruling, from three of that court’s newer judges, may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.

I basically agree with Bashman’s criticism of the opinion, but my take is a little different.

In my opinion, it is not at all far-fetched that a lawyer would think that no transcript would be available for a telephone call with a district judge. Especially this lawyer: judging from his web page, Gateway’s lead counsel is a construction lawyer. True, he’s an experienced lawyer, admitted in 1988 and listed on Super Lawyers the past several years, but it is not obvious that his practice has him in federal court very often, let alone dealing with appeals and transcripts. His name does not show up in Google Scholar’s case database for a single Third Circuit case. He has no record of professional discipline in PA (although he was hit with a big sanction in a 2011 E.D. Pa. case for having “in bad faith unreasonably and vexatiously multiplied the proceedings”).

I don’t know the guy, but nothing I’ve seen suggests he was lying when he said he didn’t realize a transcript of the phone call was available, and I think it would have been better had the panel given him a chance to respond beyond his reply brief before throwing haymakers in a published opinion. And I agree with Bashman that, regardless of whether the transcript omission was innocent here, the panel’s opinion could be a dangerous precedent for the future. But I may be less concerned about that because the opinion was careful to describe this as an unusual situation.

I also question whether forfeiture of the claim was the right sanction. The direct victim of a claim-forfeiture ruling is the not the lawyer, it’s the party. Nothing in the opinion suggests the party did anything wrong here. Maybe the panel figured that difference didn’t matter in this case, but the court would have been on stronger ground if it had focused on punishing counsel instead of their client.

Having said all that, I don’t think the panel was wrong to be upset. I just don’t think that the failure to get the transcript is the real issue. The real issue is that, thinking there was no transcript, counsel presented an argument that the panel saw as deceptive. The lower court ruled that counsel had abandoned an issue during the call. Counsel made the choice to challenge that abandonment ruling, and apparently to do so without candor: counsel argued that there was no record to support abandonment, and apparently they did not acknowledge what happened on the call. It turns out that the judge gave counsel many chances to argue that issue, finally asking, “There’s nothing about [the argument at issue] that I should be concerned with, is that right?” And counsel responded, “Not that I can see, Your Honor.”

So if counsel was going to argue on appeal that they had not abandoned the issue below, and if counsel thought the transcript was not available, the brief should have acknowledged counsel’s statements and argued why they did not constitute abandonment. (Well, and if abandonment was a central issue, counsel should have confirmed whether a transcript was available.) Just pretending those statements didn’t exist and arguing “no record” (if that is in fact what appellant did, I haven’t read the briefs), was a very bad strategy.

One of the take-home lessons of this case, in my view, is the importance of appellate counsel. The mistakes counsel apparently made here are mistakes I would never expect from an appellate specialist. Sticking to what you’re good at may cost you some fees, but that’s a small price to pay to avoid a starring role in F.3d.

New opinion — “This appeal presents us with an opportunity to emphasize the importance of following the rules.”

Lehman Brothers v. Gateway Funding — civil — affirmance — Hardiman

The headline of this post is the first line of today’s opinion, which then continues:

At issue is Rule 10 of the Federal Rules of Appellate Procedure, which imposes certain duties on counsel in preparing the record on appeal. Appellant Gateway Funding Diversified Mortgage Services, L.P. violated Rule 10 when it failed to include in the appellate record a transcript necessary to evaluate its principal claim. We hold that claim forfeited.

Well, that ought to get everyone’s attention, no?

What happened is that, in district court, the judge ruled that an argument had been abandoned by Gateway during a telephonic oral argument. On appeal, Gateway disputed that finding, but it only argued that there was “no record” to support abandonment and it did not order or include a transcript of the argument at issue. But then the appellee included the transcript with its brief, so Gateway argued that its failure to include the transcript was now moot. But “Gateway’s cavalier argument is wrong,” and the omission “at best shows a remarkable lack of diligence and at worst indicates an intent to deceive this Court.” Ow.

Joining Hardiman were Greenaway and Krause. The case was decided without argument, which normally means I don’t list the lawyers, but I’ll save rubber-neckers the click and note that counsel for Gateway was Paul Bucco and Matthew Sack of Davis, Bucco, & Ardizzi.

Court grants en banc rehearing in big capital habeas case

The Third Circuit today granted en banc rehearing in Dennis v. Secretary, an important capital habeas case decided by the panel in February. The panel ruled for the state, reversing a district court grant of habeas relief.

Here was my write-up of the panel opinion:

In an important capital habeas corpus opinion, today the court reversed a district court’s grant of relief in a Pennsylvania case.


The unanimous panel reversed the district court’s grant of relief under Brady v. Maryland for the prosecution’s failure to disclose 3 pieces of exculpatory evidence. The panel held that it was not unreasonable for the state court to limit Brady to evidence that was admissible and evidence not obtainable by the defense through reasonable diligence. The court also ruled that it was reasonable to find immaterial an exculpatory police report that impeached a key prosecution eyewitness because that witness was cross-examined about her identification at trial. All three are important holdings on recurring issues, and I expect Dennis to make an impact.


Judge Fisher wrote the opinion, and he was joined by Smith and Chagares. Arguing counsel were Thomas Dolgenos for the Philadelphia DA and Stu Lev of the Philadelphia CHU for the death-row inmate. Lev was joined on the brief by five lawyers from Arnold & Porter plus a lawyer from the federal defender in Nevada.


Given the conservative panel and its aggressive reasoning, I’d bet the farm that the inmate will seek rehearing en banc.

Guess I get to keep the farm.

New opinion — revocation of supervised release must proceed before supervision expires

United States v. Merlino — criminal — reversal — Vanaskie

Today, the Third Circuit held that district courts lack jurisdiction to revoke a criminal defendant’s supervised release and impose a revocation sentence when the warrant or summons issues after the term of supervised release has already expired. That’s good news for the defendant here, reputed Philly organized crime boss (and now restaurant maitre d’)  Joseph “Skinny Joey” Merlino. (The court had announced the outcome a couple weeks ago.)

The facts weren’t great for the defense. Merlino’s supervised-release term ran through September 6, 2014. In June of 2014, he was seen “conversing with several convicted felons” at a cigar bar. On September 2, the district court ordered issuance of a summons, but Merlino’s lawyer got the court to postpone the revocation hearing until October, which in turn delayed issuance of the summons. Then in October, Merlino argued that the court now lacked jurisdiction. It is easy to understand why dissenting Judge Shwartz describes Merlino’s win as “an odd result,” and I suspect many defense lawyers whose valid scheduling issues now get ignored will rue the result here.

Joining Vanaskie was Ambro, who concurred separately; as noted, Shwartz dissented. Arguing counsel were Edwin Jacobs for Merlino and David Troyer for the government.

New opinion — the author of the New Jersey Appellate Blog wins an appeal with an interesting procedural issue

Bohus v. — civil — reversal — Jordan

Bruce Greenberg of Lite, Depalma, Greenberg — the author of one of my favorite CA3-oriented blogs, New Jersey Appellate Blog, and an accomplished federal and state appellate lawyer — won an interesting Third Circuit civil appeal today.

The case arose out of some restaurant gift certificates sold online. Plaintiffs alleged the certificates violated various NJ state laws and filed a class-action lawsuit. In a prior appeal, CA3 certified to the New Jersey Supreme Court a question about whether a state law covered gift certificates, and the state court answered that it covered these gift certificates. But then, on remand, the district court ruled that the plaintiffs still lose because the state-court interpretation should not apply retroactively. Applying NJ retroactivity law, CA3 today reversed, holding that the state court’s certified answer applied to the named plaintiffs.

Readers of Greenberg’s blog will recall that this is the appeal where, after oral argument, the panel invited counsel to sidebar to shake the judges’ hands. (That’s similar to the practice in the Fourth Circuit, where the judges all come down from the bench afterwards and shake your hand at the counsel table.) That post, which was picked up on How Appealing, is here.

Joining Jordan were Chagares and Vanaskie. Greenberg argued for the plaintiffs, Michael McDonald of Gibbons argued for the defendants.

Finally a committee hearing for Restrepo nomination?

The Senate Judiciary Committee has announced a nominations hearing for Wednesday, May 6. The committee has not yet announced which judicial nominees will be heard; I’m told by Glenn Sugameli of the Judging the Environment project that that announcement is expected sometime Friday.

Sugameli told me he encourages those concerned to contact Senators Pat Toomey and Bob Casey to see if they have asked Chairman Grassley to include CA3 nominee L. Felipe Restrepo in the May 6 hearing.

New opinion — partial remand in labor-law appeal

800 River Road Operating Co LLC v. NLRB — labor law — partial remand — Rendell

Today’s lone opinion arises out of an election to unionize employees at a health-care company. The union charged the company with several labor-law violations during the election, and ultimately the NLRB sided with the union. Today, the Third Circuit affirmed on two issues but remanded on a third because, it held, the board failed to apply the right test.

The opinion’s opening sentence is not a model of judicial art:

Petitioner 800 River Road Operating Co. LLC, d/b/a Woodcrest Health Care Center (“Woodcrest”), seeks review of the National Labor Relations Board (“NLRB” or “Board”) decision and order (“Order”), which found that Woodcrest violated § 8(a)(1) and (a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 151-169 (“NLRA” or “Act”), by ommitting [sic] various unfair labor practices. Woodcrest Health Care Ctr., 360 N.L.R.B. No. 58 (Feb. 27, 2014).

Joining Rendell were Smith and Krause. Arguing counsel were appellate star Erin Murphy of Bancroft for the company and Jared Cantor for the NLRB.

Update: today the court corrected the typo in the opening sentence. A blog reader?

New opinion — civil affirmance

Pollara Group v. Ocean View — civil — affirmance — Jordan

The Third Circuit today refused to consider a challenge to the denial of summary judgment because the movant failed to preserve its factual issues by renewing its arguments in a motion for judgment as a matter of law. The court also rejected an inconsistent-verdicts challenge to the jury’s verdict awarding compensatory and punitive damages.

Joining Jordan were Chagares and Shwartz. Arguing counsel were Andrew Simpson for the appellants and Rhea Lawrence for the appellees.

New opinions — a civil-rights dismissal affirmance and a civil-forfeiture reversal

Two published cases today.

Vargas v. City of Philadelphia — civil rights — affirmance — Jordan

The Third Circuit today upheld dismissal of a civil-rights suit brought against Philadelphia arising from a woman’s horrifying death from an asthma attack when police allegedly blocked the woman from being taken to the hospital. Acknowledging the “tragic” facts, the court held that any seizure by the officers was reasonable under the community caretaking doctrine even though it did not involve a seizure of evidence or a vehicle search. The court also upheld dismissal of the substantive due process, failure-to-train, and false imprisonment claims.

Joining Jordan were Fisher and Greenaway. Arguing counsel were James Hockenberry for the plaintiff and Jane Istvan  (whose webpage indicates she co-authored an article intriguingly titled, “Effective Brief Writing Despite High Volume Practice”) for the city.

Langbord v. U.S. Dep’t of the Treasury — civil asset forfeiture — reversal — Rendell

The Civil Asset Forfeiture Reform Act was enacted in 2000 to curb forfeiture abuse by government. (Mission unaccomplished.) CAFRA requires the government to file a forfeiture-complaint within 90 days of seizure, and here the government, acting badly, did not do so. Today the Third Circuit held that government violated the statute. A divided panel ordered the seized property, two ten double eagle gold coins (a double eagle coin sold at auction in 2002 for over $7.5 million), returned to the people it was seized from, even though they allegedly were not the rightful owners because the coins were stolen from the government.

Joining Rendell was McKee. Sloviter dissented, agreeing that the government violated the statute but “definitely” not agreeing the government had to hand over the coins. Arguing counsel were Barry Berke for the Langbords and Robert Zauzmer for the government.

New opinions — a class-action reversal and an immigration win

Byrd v. Aaron’s Inc. — class action — reversal — Smith

In a significant class-action ruling, the Third Circuit today reversed a district court’s denial of class certification on ascertainability grounds. The panel noted (giant footnotes omitted):

there has been apparent confusion in the invocation and application of ascertainability in this Circuit. (Whether that is because, for example, the courts of appeals have discussed ascertainability in varying and distinct ways, or the ascertainability requirement is implicit rather than explicit in Rule 23, we need not say.)

Joining Smith were Rendell and Krause. Rendell concurred separately to argue:

[T]he time has come to do away with this newly created aspect of Rule 23 in the Third Circuit. Our heightened ascertainability requirement defies clarification. Additionally, it narrows the availability of class actions in a way that the drafters of Rule 23 could not have intended.

Arguing counsel were Frederick Longer of Levin Fishbein for the class plaintiffs and Kristine Brown of Alston & Byrd and Anthony Williott of Marshall Dennehey for the defendants. Thirteen firms are listed as counsel on appeal.

Chavez-Alvarez v. Attorney General — immigration — remand — Smith

Jose Chavez-Alvarez, the same fellow who last week won a major habeas victory granting him a pre-removal bond hearing, this week won again on the merits of his challenge to removal.  The court held that Chavez-Alvarez’s military conviction for sodomy was not a crime for which the term of imprisonment was at least one year, because he received a general sentence for multiple offenses.

Joining Smith were Jordan and Van Antwerpen. Arguing counsel were Craig Shagin of the Shagin Law Group for Chavez-Alvarez (that’s the same firm that represented him in last week’s win) and Kathryn DeAngelis for the government.

New opinion — upholding NJ’s gay-conversion-therapy ban, again

I’ve been on the road for the past couple days so I missed Monday’s published opinion:

Doe v. Governor — civil — affirmance — Sloviter

In this case, the court affirmed dismissal of another challenge to a New Jersey law banning so-called gay-conversion therapy. Smith and Vanaskie joined.

Also yesterday the court published this order vacating summary judgment and a injunction against Wal-Mart, promising an opinion later. The order was signed by Ambro with Vanaskie, and Shwartz also on the panel. Good coverage by Saranac Hale Spencer in the Legal Intelligencer here.

New opinion — divided panel rules for prisoner in filing-fee dispute, deepening circuit split

Siluk v. Merwin — prisoner litigation — reversal — McKee

A divided Third Circuit panel today ruled in a prisoner’s favor in a case involving how indigent inmates who file multiple suits must pay the filing fees. The PLRA requires even poor inmates to pay filings fees in full. That’s $350 in district court, $505 on appeal (UPDATE: the court later amended the opinion to say that the appeal fee when the inmate appealed was $455). To pay off these fees over time, poor inmates must make monthly payments of 20% of their prior month’s income.

So what happens when a poor inmate has 2 filing fees to pay? Is the deduction sequential (20% every month until each fee is paid in turn), or concurrent (40% each month)? The majority today held that the deductions apply sequentially, not concurrently. The majority thus deepened a circuit split on the issue, joining CA2 and CA4 against CA5, CA7, CA8, CA10, and CADC.

McKee was joined by Garth; Chagares dissented. Arguing counsel were Reed Smith associate Paige Forster (a former Fisher clerk) for the inmate and Jeffrey Sandberg (click that link!) for the government. Both the majority and the dissent praised prisoner’s counsel for the quality of their pro bono representation.

Next stop, the Scotusblog petitions we’re watching page.