Category Archives: Cases

New opinion — Third Circuit reverses denial of qualified immunity in car-chase-shooting appeal

Bland v. City of Newark — civil rights — reversal — Hardiman

The Third Circuit today held that police officers were entitled to qualified immunity from suit after shooting an unarmed man 16 to 18 times at the end of a dangerous high-speed car chase when they thought he was armed and unwilling to surrender.

Joining Hardiman were Smith and Bibas. Arguing counsel were Peter Ventrice of Brause Brause & Ventrice and Lucas Phillips Jr. of East Orange NJ for the plaintiffs and Michael Walters of the state AG’s office and Gary Lipshutz of the Newark Law Dept. for the defendants.

Two new opinions

Berardelli v. Allied Services Inst. of Rehab. Medicine — civil / disability — reversal — Krause

The Third Circuit today held that the Rehabilitation Act, like the Americans with Disabilities Act, generally requires covered actors to accommodate the service animals used by persons with disabilities. The case arose after a school refused to allow a girl with epilepsy to attend school with her service dog trained to detect seizures.

Joining Krause were Ambro and Rendell. Arguing counsel were Arleigh Helfer III of Schnader for the girl and James Conaboy of James Conaboy for the school.

 

In re: W.R. Grace — bankruptcy — partial reversal — Ambro

Today’s opinion opens, “Mass-tort liability of entities with asbestos operations typically results in their filing for bankruptcy protection,”  and few would disagree. Two decades ago the Supreme Court described the scale of asbestos litigation as elephantine, and it continues on today, with the Third Circuit still playing a central role.

Asbestos bankruptcy reorganizations often include an injunction that channels asbestos liability claims to a trust — not just claims against the debtor itself, but also claims against other entities such as the debtor’s insurers. The question in today’s opinion was whether the legal claims of a group of plaintiffs against an asbestos company’s insurers were subject to the chaneling injunction. The court agreed with the bankruptcy court that the claims fell within the terms of the injunction, but it remanded to reconsider whether chaneling their claims was allowed by the bankruptcy code.

Joining Ambro were McKee and Restrepo. Arguing counsel were Daniel Cohn of Boston for the appellants and Michael Giannotto of Goodwin Procter for the appellees.

New opinion — petitioner wins ACCA residual-clause appeal

US v. Peppers — criminal sentencing / § 2255 — reversal — Jordan

The Third Circuit today vacated a district court’s denial of relief in a successor post-conviction challenge to a criminal defendant’s sentencing under the residual clause of the Armed Career Criminal Act. The opinion’s introduction ably summarizes:

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm. That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions. Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague. He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause. But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson. Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand. First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on postsentencing cases (i.e., the current state of the law) to support his Johnson claim. Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such. Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction. We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.

Joining Jordan were Chagares and Fuentes. Arguing counsel were MDPA AFD Fritz Ulrich for the petitioner and MDPA AUSA Carlo Marchioli for the government.

New opinion — Third Circuit vacates some of former congressman’s convictions

US v. Fattah — criminal — partial reversal — Smith

In a 142-page opinion, the Third Circuit today affirmed some, vacated some, and reinstated some of the criminal convictions of former Philadelphia Congressman Chaka Fattah Sr. and three co-defendants. The facts and procedural history of the opinion alone spanned over 40 pages, longer than most published opinions.

Joining Smith were Greenaway and Krause. Arguing counsel were Jonathan Ian Kravis for the government, Bruce Merenstein of Schnader for Fattah, and Ann Flannery of Philadelphia, Barry Gross of Drinker Biddle, and Glen Nager of Jones Day for the three co-defendants.

Four new opinions [updated]

The Third Circuit issued four precedential opinions today, all unanimous affirmances — three civil, one criminal:

Tepper v. Amos Financial — civil / FDCPA — affirmance — Ambro

The Third Circuit held today that debt collectors who purchase consumers’ debts from creditors (instead of being hired by the creditors to collect the debts) are subject to the Fair Debt Collection Practices Act. Said the court, “Those entities whose principal business is to collect the defaulted debts they purchase seek to avoid the Act’s reach. We believe such an entity is what it is—a debt collector.”

Joining Ambro were Jordan and Vanaskie. Arguing counsel were Erik Helbing for the consumers and John Jacko III of Fellheimer & Eichen for the debt collector.

St. Pierre v. Retrieval Masters Creditors — civil / FDCPA — affirmance — Krause

In an issue of first circuit impression, the Third Circuit held that collecting unpaid highway-tolls bills falls outside the scope of the FDCPA, distinguishing prior circuit caselaw that collecting unpaid water and sewer bills falls within its scope. The opinion announced a three-part test for deciding what constitutes a “debt” subject to the FDCPA.

Joining Krause were Greenaway and Jones MDPA by designation. Arguing counsel were Michael Quirk of Berezofsky Law Group for the consumer and Joel Bertocchi of Chicago for the debt collector.

 

Reading Health Systems v. Bear Stearns — civil / arbitration — affirmance — Roth

Here is the first paragraph of today’s opinion:

In this case, we address an emerging trend in the brokerage industry. Ordinarily, broker-dealers, as members of the Financial Industry Regulatory Authority (FINRA), are required by FINRA Rule 12200 to arbitrate all claims brought against them by a customer. Seeking to avoid this obligation to arbitrate, broker-dealers have begun inserting forum selection clauses in their customer agreements, without mentioning the customer’s right to arbitrate. This practice, which has been condoned by several of our sister circuits, deprives investors of the benefits associated with using FINRA’s arbitral forum to resolve brokerage-related disputes.

“[C]ondoned by several of our sister circuits,” perhaps, but not condoned by the Third. Affirming the district court’s order compelling J.P. Morgan to submit to FINRA arbitration, the court expressly split with the Second and Ninth Circuits while siding with the Fourth Circuit.

Joining Roth were Shwartz and Pappert EDPA even though the appeal arose from the EDPA. Arguing counsel were Jonathan Youngwood of Simpson Thacher for the appellant and Mark Strauss of New York for the appellee.

 

US v. Johnson — criminal — affirmance — Fisher

The Third Circuit rejected a series of challenges to a criminal defendant’s conviction and sentence arising from a series of bank robberies. Proceeding after a Supreme Court GVR, the court held that the district court’s failure to instruct the jury on an element of the crime was Alleyne error but that reversal was not warranted under plain error review. The court also held that a prior federal bank-robbery conviction under 18 USC § 2113(d) was a crime of violence under the § 924(c) federal gun-enhancement statute.

Interestingly, the court firmly rejected the government’s argument that the defendant forfeited some of his claims by failing to raise them prior to the Supreme Court’s remand.

Joining Fisher were Jordan and Scirica. Arguing counsel were Ron Krauss for the defendant and Bob Zauzmer for the government.

New opinion — Third Circuit rejects Johnson challenge to Guidelines career-offender designation

US v. Green — criminal — affirmance — Chagares

By statute, 28 USC § 2255, federal prisoners are allowed to file a petition challenging their conviction within one year of a Supreme Court decision recognizing a retroactively applicable “newly recognized” right. In 2015, the Supreme Court held in US v. Johnson that the so-called residual clause of the Armed Career Criminal Act was unconstitutionally vague, and it later held that this rule applied retroactively. The wording of the residual clause of the ACCA statute is similar to the wording of the residual clause of the career-offender provision of the Sentencing Guidelines. So the prisoner in this case filed a petition within a year of Johnson asserting that he was erroneously classified under the Guidelines as a career offender.

Splitting with the Seventh Circuit, the Third Circuit today held that the prisoner’s claim did not involve a right that was “newly recognized” under § 2255 because the court interpreted a subsequent Supreme Court ruling, Beckles v. US, to foreclose application of Johnson to Guidelines residual-clause career-offender challenges. The court also distinguished its ruling last year in In re: Hoffner. (And, on a typography note, the paragraph formatting in the opinion is inconsistent.)

Joining Chagares were Greenberg and Fuentes. Arguing counsel were Fritz Ulrich for the prisoner and John Pelletieri for the government.

[Disclosure: I’ve provided some consulting assistance to counsel for the prisoner.]

New opinion — Third Circuit decides jurisdiction for appeals from nationality determinations transferred out-of-circuit

Ricketts v. AG — immigration — dismissal — Jordan

On Monday, the Third Circuit held that, when a deportation proceeding is transferred out-of-circuit to determine whether the person the government is trying to deport actually is a U.S. citizen, an appeal from that determination must go to the circuit court where the case was transferred to, not the circuit court where the case originated. The Third Circuit acknowledged that this holding may conflict with a prior Ninth Circuit ruling.

Joining Jordan were Greenaway and Fisher. The appeal was decided without oral argument.

New opinions — a dramatic new chapter in the Doe transgender-bathrooms appeal, and a big class-action ruling

Doe v. Boyertown Area School Dist. (amended) —  civil — affirmance — McKee

Today the Third Circuit issued a revised, narrower panel opinion in Doe, the big transgender-bathrooms appeal in which the panel announced its ruling from the bench after oral argument. My post on the court’s original opinion is here.

Also today, the court issued an order denying without prejudice the appellants’ request for rehearing en banc, stating that they may re-file in light of the revised panel opinion.

And, most dramatically, Judge Jordan issued an opinion dissenting from the en banc denial, joined by Judges Chagares, Hardiman, and Bibas. The order and dissent are not posted on the court’s website, unfortunately, but they are on Pacer and also have been posted by one of the parties at this link.

Judge Jordan’s dissent explains that his purpose is not to take issue with the outcome of the panel opinion, conceding that the record can support the denial of the preliminary injunction. But he disagrees, strenuously, with the revised panel opinion’s discussion of whether requiring transgender students to use bathrooms according to their sex at birth would violate Title IX. He argues that this discussion is unnecessary, debatable, and dicta, concluding, “it is … axiomatic that we should confine ourselves to resolving the specific matters before us, not some bigger issue we might like to address.”

Remarkable. And still not the last word, I suspect.

 

Mielo v. Steak ‘n Shake — civil / class action — reversal — Smith

Here is the introduction from today’s opinion reversing class certification:

In this class action lawsuit, two disability rights advocates have sued Steak ’n Shake under the Americans with Disabilities Act (“ADA”). Alleging they have
personally experienced difficulty ambulating in their wheelchairs through two sloped parking facilities, these Plaintiffs seek to sue on behalf of all physically disabled individuals who may have experienced similar difficulties at Steak ’n Shake restaurants throughout the country. The District Court certified Plaintiffs’ proposed class, and Steak ’n Shake now appeals that certification decision. We are tasked with answering two questions: First, whether Plaintiffs have standing under Article III of the United States Constitution, and second, whether they have satisfied the requirements set out in Federal Rule of Civil Procedure 23(a).

As to the first question, we conclude that Plaintiffs have standing to bring their claims in federal court. Although a mere procedural violation of the ADA does not qualify as an injury in fact under Article III, Plaintiffs allege to have personally experienced concrete injuries as a result of ADA violations on at least two occasions. Further, Plaintiffs have sufficiently alleged that these injuries were caused by unlawful corporate policies that can be redressed with injunctive relief. We withhold judgment as to whether those corporate policies are indeed unlawful, as our standing inquiry extends only so far as to permit us to ensure that Plaintiffs have sufficiently pled as much.

As to the second question before us, we conclude that Plaintiffs have failed to satisfy Rule 23(a). The extraordinarily broad class certified by the District Court
runs afoul of at least two of Rule 23(a)’s requirements [numerosity and redressability]. In light of this conclusion, the District Court’s judgment will be reversed, and this matter will be remanded to the District Court to reconsider if a class should be certified.

Joining Smith are Hardiman and Restrepo. Arguing counsel were David Raizman of Ogletree Deakins for the appellants and Edwin Kilpela Jr. of Carlson Lynch for the appellee.

Three new opinions

US v. Green IV — criminal — affirmance — Fisher

The Third Circuit today rejected a criminal defendant’s challenge to a vehicle stop. The officer made the stop for speeding after pacing the vehicle from between a mile and two-tenths of a mile away. After the driver refused to consent to a vehicle search, the officer made the driver wait for 15 minutes for a dog to arrive to sniff the vehicle for drugs. The court rejected challenges to both the initial stop and the prolongation.

The court’s analysis of reasonable suspicion turns on statements by the driver that it deems fishy but which strike me as quite unremarkable. For example, the opinion thought a key fact was that, when asked by the officer how he was doing, the driver responded, “I can’t complain,” instead of immediately explaining to the officer that his daughter recently had broken her leg. On the other hand, the opinion’s prolongation section is an admirably lucid discussion of an area of the law that is anything but.

Joining Fisher were Greenaway and Nygaard. Arguing counsel were Kimberly Brunson of the WDPA FPD for the defendant and Michael Ivory for the government.

 

Adorers of the Blood of Christ v. FERC — civil / agency — affirmance — Greenaway

By statute, the D.C. Circuit has exclusive jurisdiction over certain decisions by the Federal Energy Regulatory Commission. After FERC approved a natural-gas pipeline through land owned by a religious organization, the religious organization sued to block the project under the Religious Freedom Restoration Act in the Eastern District of Pennsylvania. The district court dismissed for lack of jurisdiction, and today the Third Circuit affirmed, holding that RFRA does not function as an exception to the exclusive-jurisdiction grant.

Joining Greenaway were Smith and Krause. Arguing counsel were J. Dwight Yoder of Gibbel Kraybill for the religious group, Susanna Chu for FERC, and Elizabeth Witmer of Saul Ewing for the gas company.

 

PA DHS v. USA — civil — affirmance — Greenberg

The Third Circuit today rejected a state agency’s challenge to a district court ruling in favor of the federal government in a dispute over reimbursement of fees for Medicare and Medicaid provider training.

Joining Greenberg were Jordan and Krause. Arguing counsel were W. Scott Foster for the agency and Suzanne Yurk for the government.

New opinion — Third Circuit rules for the government in FTCA filing-deadline appeal

Sconiers v. USA — civil — affirmance — Greenaway

The Third Circuit today affirmed the dismissal of a suit under the Federal Tort Claims Act because the claimant failed to file suit within six months of the agency’s written denial, rejecting the claimant’s argument that the FTCA’s timeliness requirement was satisfied once she filed her claim with the agency within two years.

Joining Greenaway were Restrepo and Bibas. The case was decided without oral argument.

New opinion — Third Circuit clarifies the new-evidence standard for proving actual innocence

Reeves v. Coleman — habeas corpus — reversal — Shwartz

[Disclosure: I represented the petitioner-appellant in this appeal, along with my superb pro bono co-counsel David Fine.]

Under habeas corpus law, petitioners who present new evidence of their actual innocence can have federal review of their procedurally barred or untimely constitutional claims if their innocence showing is strong enough. But what evidence qualifies as “new” evidence of innocence? Is innocence evidence “new” any time it was not presented at trial? What if it was available at trial, but counsel failed to discover or present it due to ineffective assistance of counsel?

Today the Third Circuit held that innocence evidence is new if it is the very evidence upon which the petitioner relies to demonstrate his counsel’s ineffective assistance, and that Reeves’s evidence meets that test, vacating the district court’s denial of relief based on the availability of the evidence at trial. The new-evidence standard announced today is more permissive than the various standards most district courts in the circuit have been applying, and today’s ruling is helpful for innocent prisoners fighting to get federal review of their claims.

Judge McKee concurred separately “to emphasize the weight of the evidence that supports Reeves’s claim of actual innocence,” noting that his showing is so substantial that a group of former federal judges and prosecutors filed an amicus brief on his behalf.

Joining Shwartz were McKee and Cowen, with McKee also concurring. Arguing counsel were yours truly for the petitioner and Ryan Lysaght of the Dauphin County D.A.’s office for the Commonwealth. Audio of the argument is here.

 

Update: the Court issued an amended opinion on July 23 that made minor, non-substantive edits to the footnotes in the concurrence. The link in the heading now goes to the amended opinion, the original opinion is here.

 

New opinion — Third Circuit sides with city in challenge to its gas-bill lien system

Augustin v. City of Phila. — municipal — reversal — Hardiman

The Third Circuit today held that a district court erred in granting summary judgment in favor of a group of landlords who challenged on due process grounds Philadelphia’s system for imposing and enforcing liens to collect debts for commercial and residential gas service.

Joining Hardiman were Smith and Brann MDPA by designation. Arguing counsel were Craig Gottlieb of the city law department for the city and the formidable Irv Ackelsberg of Langer Grogan for the landlords.

New opinion — on the “hellish judicial duty” of deciding attorney-fees melees

US ex rel. Palmer v. C&D Technologies — qui tam / attorney fees — affirmance, mostly — Greenberg

The Third Circuit today decided a fascinating train-wreck of an appeal, an attorney-fees dispute in which the court said “both parties adopted unproductive tactics and strayed from professional etiquette, conduct that ultimately caused the District Court to proclaim that ‘[i]t is a hellish judicial duty to review and resolve disputed attorneys’ fee petitions, particularly in cases, like this one, where the adversaries fan the flames at virtually every opportunity.'”

How could you not read that opinion?

Today’s opinion is punchy and clear, as Greenberg opinions usually are. The court almost entirely upheld the district court’s ruling, which awarded the qui tam relator’s counsel almost $1.8 million in fees, rejecting relator’s counsels’ arguments that the award should have been higher. (It appears to me that counsel argued their own appeal, which as I recently opined in discussing another case is usually a mistake.)

Joining Greenberg were Jordan and Krause. The case was decided without oral argument.

New opinion — a major reversal in a capital habeas appeal

Abdul-Salaam v. Secretary — capital habeas — partial reversal — Chagares

The Third Circuit today held that a capital petitioner was entitled to habeas corpus relief due to ineffective assistance of this penalty-phase trial counsel in failing to investigate and present mitigation. It’s a significant capital habeas opinion because it involves a depressingly common scenario in capital cases, where counsel presents a sliver of the available mitigation evidence while failing to uncover the rest of what was available. Today’s opinion firmly rejected the arguments that counsel’s skepticism about whether he’d present certain evidence justified his failure to investigate it and that counsel’s presentation of morsels of evidence rendered all the evidence he missed cumulative.

Although the opinion didn’t emphasize the point, this case is another example of a district court denying a certificate of appealability on a claim that the Third Circuit thereafter granted relief on. In other words, the Third Circuit found that the claim was meritorious after the district court decided it was so weak that no reasonable jurist could even debate its merit! What a blunder.

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

New opinion — divided panel rules that TSA screeners are immune from suit

Pellegrino v. TSA — civil — affirmance — Krause

Deciding an issue of first impression, the Third Circuit today held that the federal government is immune from suit for intentional torts committed by TSA airport security screeners.

The Federal Tort Claims Act confers sovereign immunity to the government for intentional torts by federal employees, subject to an exception for “investigative or law enforcement officers.” The core issue in today’s appeal was whether TSA screeners fall within the exception. The panel majority held that they do not, interpreting the exception to apply only to officers with criminal law enforcement powers.

Judge Ambro dissented in an opinion that ran 58 pages. Here is the heart of it, from his conclusion (cites omitted):

The[ two judges in the majority] look to other statutes for clarification, consult various canons of construction, and also examine legislative history. Ultimately they conclude § 2680(h) covers only criminal law enforcement officers. In doing so, they depart from other Circuits’ interpretation of the proviso. They also disregard Supreme Court precedent that tells us how to interpret § 2680(h)’s language. Their decision insulates TSOs from all intentional tort claims, leaving plaintiffs without a civil remedy. Absent congressional action, they cannot recover if a TSO assaults them, unlawfully detains them, or unlawfully lodges a criminal complaint against them. All of this is because my colleagues look through a lens that legislates “criminal” into a provision it nowhere appears.

This is not what Congress intended, as it enacted § 2680(h) to serve as a broad remedy against tortious conduct. It also ignores Congress’s definition of “investigative or law enforcement officer,” which we must apply “even if it varies from that term’s ordinary meaning.”

In view of these principles, I disagree with my colleagues’ reasoning. Instead of relying on non-textual sources, we must apply § 2680(h)’s plain language; other statutes, the canons, and legislative history (i.e., authorities outside of the proviso) cannot defeat its words. Because the text tells the tale, I part with today’s holding.

In a footnote, the majority responds to Judge Ambro’s assertion that the statute’s text is unambiguous with, “Would it were so.”

Both opinions are exceptionally good, and it’s inspiring to see such high-caliber work devoted to an appeal that easily could have been (and originally was on track to be, it appears) disposed of as a routine pro se appeal without argument or counsel on both sides.

Joining Krause was Scirica, with Ambro dissenting. Arguing counsel were Mark Sherer for the government and former Smith clerk Paul Thompson of McDermott Will as court-appointed amicus curiae on behalf of the pro se trial plaintiffs. The court thanked Thompson for accepting the case pro bono and for the quality of his briefing and argument.

Two new opinions [updated]

Holland v. Rosen — civil — affirmance — Ambro

Until last year, New Jersey relied on monetary bail to ensure defendants’ appearance at their trials. The opinion in this case explains how this system produced perverse results: “In practice, the State’s reliance on monetary bail resulted in the release of defendants who could afford to pay for their release, even if they posed a substantial risk of flight or danger to others, and the pretrial detention of poorer defendants who presented minimal risk and were accused of less serious crimes.” So New Jersey replaced its cash-bail-based system with one that relied mainly on non-monetary measures ranging from monthly phone check-ins to electronic monitoring and home confinement, and the state’s pre-trial jail population dropped by over 20%.

That sounds like good news for everyone … except for those wealthier criminal defendants who before would have been able to just write a check but now faced restrictions on their pre-trial liberty. One of them challenged the new regime, represented by Kirkland & Ellis with Paul Clement handling the oral argument personally, seeking an injunction to prevent the state from imposing any restrictions on him without first offering him monetary bail, but today the Third Circuit rejected his challenge and affirmed. The Third Circuit identified the key legal issue as whether there is a federal constitutional right to monetary bail as an alternative to non-monetary conditions of pretrial release, and, “Our answer is no.”

Joining Ambro were Fuentes and Restrepo. Arguing counsel were Paul Clement of Kirkland & Ellis for the challengers, Stuart Feinblatt of the NJ AG’s office for the state, and Alexander Shalom of ACLU of NJ for amici supporting the state.

UPDATE: how on earth did the opinion omit the critical fact that the defendant (arrested for his role in a bar fight) was a Cowboys fan? S.P. Sullivan has the story at NJ.com.

 

Walsh v. Defenders Inc. — civil / class action — affirmance — Greenberg

The Third Circuit affirmed a district court’s order remanding a class action to state court under the local controversy exception to jurisdiction under the Class Action Fairness Act. CAFA allows class-action defendants to remove larger class actions to federal court, and the local-controversy exception allows class plaintiffs to get some cases back to state court. The outcome here turns on the specific facts of what the opinion describes as a “confusing case.”

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

Two new opinions

Bakran v. Secretary Dept. Homeland Security — civil / immigration — affirmance, basically — Shwartz

The Third Circuit today rejected a citizen’s challenges to a statute that prevents persons convicted of certain sex offenses from sponsoring a family member to enter the country. The opinion’s introduction summarizes ably:

Ahmed Bakran appeals from the District Court’s order granting summary judgment in favor of the Secretary of the United States Department of Homeland Security, the Director of the United States Citizenship and Immigration Services (the “USCIS”), and the Attorney General (“Defendants”) on Bakran’s statutory and constitutional challenges to the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 402(a), 120 Stat. 587, 622-23 (2006) (the “AWA”), and related agency memoranda.

The AWA restricts the ability of a United States citizen convicted of a sex offense to sponsor an immediate relative’s immigration application. Bakran claims that certain protocols used to enforce the AWA violate the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (the “APA”). The protocols he challenges, however, simply guide the Secretary’s determination, and as we explain herein, we lack jurisdiction to review them.

Bakran also asserts that the AWA violates his right to marriage and is impermissibly retroactive. The AWA does not infringe his marriage right but rather deprives him of an immigration benefit to which he has no constitutional right. Moreover, because the Act is aimed at providing prospective protection, it is not  impermissibly retroactive. Therefore, we will vacate the District Court’s order granting summary judgment to Defendants on Bakran’s APA claims, and remand with directions to dismiss the APA claims for lack of jurisdiction, and affirm the District Court’s order denying relief on his constitutional and retroactivity challenges to the AWA.

Joining Shwartz were Greenaway and Simandle DNJ by designation. Arguing counsel were Nicklaus Misiti of New York for the appellant and Sara Wilson for the government.

Clientron Corp. v. Devon IT — civil — reversal — Greenaway

In an odd and interesting case today, the Third Circuit vacated a district court’s order that pierced the corporate veil as a sanction for egregious discovery abuse, but the court left the door open to a significant sanction being reimposed on remand.

Joining Greenaway were Krause and Jones MDPA by designation. Arguing counsel were John van Loben Sels of California for the appellant and Gary Samms of Obermayer Rebmann for the appellees.

Three new opinions, including a major immigration appeal

S.E.R.L. v. AG — immigration — affirmance — Jordan

This appeal posed a fascinating tension: immigrant advocates urged the court not to apply Chevron deference. Broadly, conservatives today tend to oppose immigration and Chevron deference, while liberals tend to favor both. When the “liberal” side advances the “conservative” position, as here, the familiar ideological guideposts are harder to read.

The legal issue in today’s case was whether a Honduran woman and her children qualified for withholding of removal under the Immigration and Nationality Act as members of a “particular social group.” Their group, they argued, consisted generally of family members of domestic-abuse victims. The Board of Immigration Appeals had interpreted “particular social group” narrowly, in way fatal to the family’s claim here, and the family argued that its strict test wasn’t entitled to Chevron deference.  Today, the Third Circuit rejected their position, holding that the BIA’s interpretation is entitled to Chevron deference and denying the petition for review.

Joining avowed Chevron foe Jordan were Krause and Greenberg. Arguing counsel were Russell Falconer of Texas for the family and Sheri Glaser for the government. A footnote in the opinion thanked several groups for filing amicus briefs “which have assisted our consideration of the legal issues before us and also shine a light on an issue of international concern.”

Minarsky v. Susquehanna Co. — civil / employment discrimination — reversal — Rendell

A county secretary alleged that she was subjected to years of sexual harassment by a superior, the since-fired head of the county’s veterans-affairs department, and she sued various defendants including the county based on a theory vicarious liability. The district court granted summary judgment in favor of the county, but today the Third Circuit reversed, holding that whether the county had satisfied the Faragher-Elllerth affirmative defense to vicarious liabililty for workplace harassment should be decided by a jury.

Joining Rendell were Greenaway and Fuentes. Arguing counsel were David Koller of Koller Law for the secretary, Dana Zlotucha of Kreder Brooks Hailstone for the county, and Gerald Hanchulak for the superior.

Wayne Land & Mineral Gp. v. Delaware River Basin Comm’n — environmental — reversal — Jordan

The Third Circuit today reversed a district court’s dismissal of a suit brought by a company trying to keep the Delaware River Basin Commission from regulating its fracking work. The relevant law allows the commission to regulate a “project,” and the Third Circuit held that that term in ambiguous and remanded for fact-finding on the drafters’ intent.

Judge Scirica wrote a brief separate opinion. The signature line states simply that the opinion is “concurring,” and it ends with the statement that “I concur,” but the body of the opinion states that he agrees with part of the court’s opinion but has a concern that “precludes him from joining in full.” Specifically, he joined with the court’s ambiguity analysis but disagreed with the opinion’s inclusion of an assessment of the strengths and weaknesses of other issues that the district court will decide on remand.

(Readers may recall that is the case in which a lawyer fainted during the original oral argument.)

Joining Jordan were Hardiman and Scirica at least in part, and Scirica concurred. Arguing counsel were David Overstreet of Overstreet & Nestor for the appellant, Kenneth Warren of Warren Environmental Counsel for the commission, and Jordan Yeager of Curtin & Heefner for an intervenor group.

Sweet vindication for the Third Circuit

A helpful reader kindly pointed out to me an interesting little Third Circuit victory hidden in last week’s Supreme Court ruling in Pereira v. Sessions that Chevron deference does not apply to an immigration-statute provision involving cancellation of removal.

Back in 2016, the Third Circuit faced the same question in Orozco-Velasquez. The petitioner argued that he was entitled to cancellation of removal, and that the BIA’s ruling compelling the opposite result was not entitled to Chevron deference. At least six circuits had held that the BIA’s ruling was entitled to Chevron deference, and none had held that it wasn’t.

But the Third Circuit split with them all.

Orozco-Velasquez held that the BIA’s ruling didn’t get Chevron deference, explicitly disagreeing with the other circuits, and ruled for the petitioner. The opinion was authored by Judge Roth and joined by Judges McKee and Ambro.

In last week’s Supreme Court ruling, the Third Circuit was vindicated. Justice Kennedy’s concurrence explains (emphasis mine):

The first Courts of Appeals to encounter the question concluded or assumed that the notice necessary to trigger the stop-time rule found in 8 U. S. C. §1229b(d)(1) was not “perfected” until the immigrant received all the information listed in §1229(a)(1). Guamanrrigra v. Holder, 670 F. 3d 404, 410 (CA2 2012) (per curiam); see also Dababneh v. Gonzales, 471 F. 3d 806, 809 (CA7 2006); Garcia-Ramirez v. Gonzales, 423 F. 3d 935, 937, n. 3 (CA9 2005) (per curiam).

That emerging consensus abruptly dissolved not long after the Board of Immigration Appeals (BIA) reached a contrary interpretation of §1229b(d)(1) in Matter of Camarillo, 25 I. & N. Dec. 644 (2011). After that administrative ruling, in addition to the decision under review here, at least six Courts of Appeals, citing Chevron, concluded that §1229b(d)(1) was ambiguous and then held that the BIA’s interpretation was reasonable. See Moscoso-Castellanos v. Lynch, 803 F. 3d 1079, 1083 (CA9 2015); O’Garro v. United States Atty. Gen., 605 Fed. Appx. 951, 953 (CA11 2015) (per curiam); Guaman-Yuqui v. Lynch, 786 F. 3d 235, 239–240 (CA2 2015) (per curiam); Gonzalez-Garcia v. Holder, 770 F. 3d 431, 434–435 (CA6 2014); Yi Di Wang v. Holder, 759 F. 3d 670, 674–675 (CA7 2014); Urbina v. Holder, 745 F. 3d 736, 740 (CA4 2014). But see Orozco-Velasquez v. Attorney General United States, 817 F. 3d 78, 81–82 (CA3 2016). The Court correctly concludes today that those holdings were wrong because the BIA’s interpretation finds little support in the statute’s text.

Don’t mess with the Third Circuit.

Another cert grant with Third Circuit implications

The Supreme Court today granted certiorari to hear an Eleventh Circuit case to decide whether to overrule the “separate sovereigns” exception to the double jeopardy clause. The case is Gamble v. United States, 17-646. The Court did not act on a cert petition from a Third Circuit case raising the same issue that it had re-listed 10 times (Scotus docket here), but it seems clear that any eventual ruling in Gamble will have an impact here, too.

Thanks to MDPA assistant federal defender Fritz Ulrich for pointing out the Third Circuit dimension to me.

Cert granted in Fosamax case

The Supreme Court today granted certiorari in Merck Sharp & Dohme v. Albrecht, the Third Circuit case decided as In re: Fosamax. The question presented, per Scotusblog:

Whether a state-law failure-to-warn claim is pre-empted when the Food and Drug Administration rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning.

The cert grant was not unexpected after, at the Court’s invitation, the Solicitor General filed an amicus curiae brief urging the Court to grant review. Justice Alito is recused from the case.

My earlier coverage of the appeal is here and here.

New opinion — TCPA provides no relief from text-message avalanche [updated]

Dominguez v. Yahoo — civil / consumer — affirmance — Roth

Some poor guy named Dominguez bought a cell phone that was assigned a phone number that used to be someone else’s, and that someone else had subscribed to get a text message every time she received an email. All Dominguez’s efforts to stop these messages were for naught, so he got 27,800 text messages from Yahoo—about 50 texts a day, every day, for 17 months.

Improbably, Dominguez did not kill anyone, and instead he sued Yahoo under the Telephone Consumer Protection Act, which makes it unlawful to use an autodialer to send non-emergency text messages. Today, the Third Circuit affirmed a ruling against poor Dominguez, holding that he failed to show that Yahoo’s text-notification service was an autodialer because it wasn’t calling numbers randomly or sequentially. No doubt he will find great solace in the court’s acknowledgement that “[t]here can be little doubt that Dominguez suffered great annoyance as a result of the unwanted text messages.”

Joining Roth were Shwartz and Pappert EDPA by designation. The case was decided without oral argument.

Update: a blog post by TCPA defense lawyer Eric Troutman exults:

Today’s ruling … is a huge– and undoubtedly satisfying– victory for Yahoo!, but it also represent [sic] a massive shift in case law in favor of a limited reading of ATDS [automatic telephone dialing system], just when courts seemed to be content to continue reading the ATDS definition broadly. What an amazing development.

New opinion: Third Circuit affirms “extraordinary” award of attorneys’ fees after voluntary dismissal

Carroll v. E One — civil — affirmance — Smith

Say you’re a lawyer who represented a litigant in district court, and you lost, and your client has decided to appeal, and a central issue in the appeal involves whether you did something wrong: should you handle the appeal yourself? Not in my view. No matter how sure you may be that you did not screw up, if the appeal will focus substantially on whether you screwed up, you’re the wrong one for the job.

In the last couple years there have been a few Third Circuit appeals where lawyers have not done as I suggest above, and it hasn’t gone well. Here’s a memorable one, an appeal from summary judgment against the client and over $28,000 in sanctions against the lawyer; the panel called the lawyer out by name throughout the opinion and flat affirmed.

Today, it happened again, and again it went badly for the side whose lawyer stayed on. The Third Circuit affirmed a district court’s award of over $127,000 in attorneys’ fees and costs after a voluntary dismissal with prejudice under Fed. R. Civ. P. 41(a)(2). The court recognized that attorneys’ fees and costs normally are not available after a voluntary dismissal with prejudice, but held that they may be awarded in extraordinary circumstances that were present here:

Exceptional circumstances include a litigant’s failure to perform a meaningful pre-suit investigation, as well as a repeated practice of bringing meritless claims and then dismissing them with prejudice after both the opposing party and the judicial system have incurred substantial costs. Because such exceptional circumstances are present in this case, the District Court’s award will be affirmed.

The opinion’s harshest language was directed at the fact that one client said that he learned that he was a plaintiff in the suit only after the firm emailed him, seemingly after the suit was filed: “Such an uninformed rush to the courthouse skirts the norms of proper legal practice in pursuit of the fruits of aggregation. It should not be condoned.”

What gives me pause me about today’s ruling is that, while the basis for the award was counsel‘s actions–including actions apparently taken without the clients’ knowledge, and actions in other cases on behalf of other clients–the ones on the hook for the six-figure award here, I’d think, are the clients.

Joining Smith were Hardiman and Roth. Arguing counsel were Joseph Cappelli of Bern & Partners (formerly Bern Cappelli) for the appellants and Jan Miller of St. Louis for the appellee.

New opinion — Third Circuit issues opinion in transgender-bathroom case

Doe v. Boyertown Area SD — civil — affirmance — McKee

Last month, a Third Circuit panel dramatically announced just minutes after the oral argument that it would affirm the district court’s ruling in favor a school district policy that allowed transgender students to use bathrooms corresponding with their gender identity. My post on the oral ruling is here, and a link to post-argument commentary prediction an en ban petition and criticizing the panel as “Activist Judges” is here.

This afternoon, the Third Circuit issued its opinion, stating, “Although we amplify the District Court’s reasoning because of the interest in this issue, we affirm substantially for the reasons set forth in the District Court’s opinion.”

Joining McKee were Shwartz and Nygaard. Arguing counsel were Randall Wenger of the Independence Law Center for the appellants, Michael Levin of the Levin Law Group for the school district, and Ria Tabacco Mar of the ACLU for an intervenor.

New opinion — a big Third Circuit immigration ruling

Osorio-Martinez v. AG — immigration — reversal — Krause

In 2016, the Third Circuit issued a blockbuster immigration ruling in Castro v. US DHS, holding that federal courts lack jurisdiction to hear a challenges to removal brought by a group of women and children caught, on US soil, shortly after entering the US, and that this statutory denial of jurisdiction did not violate the Suspension Clause. It was a crushing loss for immigrant advocates and one of the Third Circuit’s most controversial recent opinions.

Today, just two years later, a different Third Circuit panel heard a second appeal brought by four of the children and their mothers who were among those denied a forum in Castro. The opinion’s introduction explains:

Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile (SIJ) status—a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements.

That one difference, the court held today, is dispositive:

[W]e are now confronted with a matter of first impression among the Courts of Appeals: Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal? We conclude that it does.

The court observed that the ” Government’s decision to continue seeking removal is particularly noteworthy because, as far as we are aware, until very recently DHS has never attempted to remove SIJ-classified children back to their countries of origin, much less on an expedited basis.”

How broadly available is SIJ status? Is today’s ruling just a narrow exception, or does it promise to swallow the Castro rule? I didn’t notice any discussion of these questions in today’s opinion, and I’m hoping that immigration experts will shed light here in the days ahead.

Joining Krause were Ambro and Scirica. Arguing counsel were Jessica Rickabaugh of the Tucker Law Group for the appellants and Joseph Darrow of the DOJ for the government. Other notable counsel on the briefs include Nancy Winkelman (formerly of Schnader, now at the Philadelphia District Attorney’s office) for amicus appellant and pending Sixth Circuit nominee Assistant Attorney General Chad Readler for the government.

New opinion

US v. Ramos — criminal — reversal (for government) — Roth

The Third Circuit today vacated a criminal sentence on the government’s appeal, holding that Pennsylvania’s crime of second-degree assault with a deadly weapon, 18 Pa. CS § 2702(a)(4), is categorically a crime of violence and that the defendant therefore qualified as a career offender under the advisory Sentencing Guidelines (even though he did not under the ACCA).

Joining Roth were Smith and Hardiman. Arguing counsel were Robert Zauzmer for the government and Arianna Freeman for the defendant.

New opinion — Third Circuit finds that misconduct by prosecution doesn’t warrant reversal but that erroneous imposition of a sentencing enhancement does

US v. Welshans — criminal — partial reversal — Restrepo

The Third Circuit today affirmed a defendant’s child-pornography conviction but reversed his sentence.

As to the conviction, the court rejected the defendant’s argument that it violated due process to allow in evidence and argument that the computer files included “deeply abhorrent” videos and images involving very young children. Although the court agreed that the prosecution committed misconduct that was plain, and agreed that the evidence should have been excluded under Rule 403, it denied relief given the prosecution’s overwhelming evidence.

As to the sentence, the panel majority held that the sentencing court erred in applying the Sentencing Guidelines enhancement for obstruction of justice because his acts (moving computer files into the recycling bin when he was told police were on their way) were contemporaneous to his arrest and did not materially hinder the investigation. The majority also held that the government waived the material-hinderance point by first raising it at oral argument.

Joining Restrepo were Ambro in full and Fuentes as to the conviction; Fuentes dissented on the sentencing reversal. Arguing counsel were Renee Pietropaolo for the defendant and Laura Schleich Irwin for the government.

New opinion — Third Circuit rejects EMTALA whistleblower appeal

Gillespie v. Regionalcare Hospital Partners — civil — affirmance — McKee

A pregnant women arrived at Pennsylvania’s Southwest Regional Medical Center complaining of pain and vaginal bleeding. After examining her, ER personnel discharged the woman and told her to go to a different hospital. The nurse at Southwest Regional in charge of evaluating patient care and addressing medical errors believed that discharging the woman violated a federal law against hospital-patient dumping known as EMTALA. Right after she told her supervisor that Southwest Regional had to report the EMTALA violation, she was fired. She sued, alleging that her firing violated EMTALA’s whistleblower protection, and the district court granted summary judgment to the hospital.

Today, the Third Circuit affirmed the ruling against the fired nurse. To be covered by EMTALA’s whistleblower provision, the nurse had to have “reported a violation.” Here, the court explained, the nurse didn’t “report” anything because she alleged her superiors already knew about and to the EMTALA violation but refused to report it anyway. So, no “report.” (I have no EMTALA expertise, but I would have guessed that the medical center’s failure to report was itself an EMTALA violation, separate from the original patient-dumping violation, and one that the nurse did report, but the opinion does not mention this theory so I’m not sure.) Anyhow, a tough case.

Joining McKee were Smith and Restrepo. Arguing counsel were Noah Geary for the nurse and Marla Presley of Jackson Lewis for the medical center.

New opinion — sexual abuse by guards can constitute cruel and unusual punishment

Ricks v. Shover — prisoner civil rights — reversal — Rendell

The Third Circuit today issued an important new prisoner-rights ruling, holding that a single act of sexual abuse without force or injury can violate the Eighth Amendment:

Whether sexual abuse can constitute “cruel and unusual punishment” under the Eighth Amendment is a matter of first impression in our Court. We write today to state in plainest terms that it does. Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact.

The court reversed the district court’s dismissal of the prisoner’s Eighth Amendment sexual-abuse claim against a guard who allegedly rubbed his erect penis against the prisoner during a pat-down search. It stated, ” Absent more specific allegations as to the severity of Keil’s conduct or the surrounding context, including the need for the search, we cannot conclude that he plausibly violated Ricks’ right to be free from “cruel and unusual punishments,” but remanded to allow the prisoner to amend his complaint. The court also reversed the dismissal of an excessive-force claim against a supervisor who allegedly slammed the prisoner into a wall when he protested.

Joining Rendell were Chagares and Scirica. Arguing counsel were former Smith clerk and Boies Schiller associate James Kraehenbuehl for the prisoner and Claudia Tesoro of the PA Attorney General’s office for the guards. The court noted that Kraehenbuehl represented the prisoner pro bono and thanked him for “the high caliber of representation” he provided.

New opinion — Third Circuit rejects government’s belated challenge to suppression

US v. Kalb — criminal — affirmance (for defendant) — Scirica

By statute, the government is allowed to file an interlocutory appeal from an order suppressing evidence; “The appeal in all such cases shall be taken within 30 days after the decision, judgment or order has been rendered and shall be diligently prosecuted.” 18 USC § 3731. In this case, the district court ordered suppression and, more than 30 days later, the government filed a motion to reconsider, which the defendant argued was untimely but the district court denied on the merits. Today, the Third Circuit held that § 3731’s deadline is jurisdictional, and that a motion for reconsideration filed after the deadline does not support jurisdiction to review the suppression order; the court also affirmed the denial of the consideration motion because it relied on arguments the government could have made earlier. Thus, today’s opinion is a rare bird, an affirmance in a criminal appeal that comes out in favor of the defense.

Joining Scirica were Jordan and Hardiman. Arguing counsel were Robert Zauzmer of the EDPA US Attorney’s office for the government and Brett Sweitzer of the EDPA federal defender’s office for the defendant, both stellar. The argument audio is here.

New opinions — three affirmances

Bonilla v. Sessions — immigration — affirmance — Shwartz

The Third Circuit denied a El Salvadoran citizen’s petition for review of removal, rejecting the man’s argument that his right to due process was denied when reasonable-fear-screening proceedings before the immigration judge went forward without his counsel. Although the hearing notice said that counsel should appear with the client at the hearing, the lawyer (unidentified in the opinion except to clarify that appellate counsel was different) “assumed it would be held telephonically.” The court did not decide whether parties have a right to counsel at a reasonable-fear hearing, denying relief instead because the man had notice of his right to counsel and failed to show prejudice.

Although today’s opinion does not say so, Pacer shows that the panel issued a non-precedential opinion in the case on March 15. Two months later, after the mandate had issued, the government filed a motion to publish, which the panel granted. Motions to publish are an under-utilized tool, in my view. [UPDATE: after my original post the order granting the motion to publish was posted on the court’s website.]

Joining Shwartz were Jordan and Krause. The case was decided without argument.

 

US v. Foster — criminal — affirmance — Jordan

The Third Circuit today affirmed two criminal convictions, rejecting five different challenges to their convictions and sentences: a Fourth Amendment issue, a 404(b) admissibility claim, a sufficiency-of-the-evidence challenge to evidence of constructive possession of a firearm, and two firearm-use sentencing-enhancement claims.

Joining Jordan were Shwartz and Krause. Arguing counsel were Renee Pietropaolo of the WDPA federal defender for one defendant, Eleni Kousoulis of the DE federal defender for the other, and Elizabeth Van Pelt of the DE US Attorney’s office for the government.

 

US v. Shaw — criminal — affirmance — Restrepo

Finally, the Third Circuit upheld a former prison guard’s convictions for sexually assaulting an inmate and obstruction of justice. The court rejected challenges to the sexual-assault instructions (splitting with the Tenth Circuit), the sexual-assault sufficiency, two evidentiary challenges, and a speedy-trial claim.

Joining Restrepo were Smith and McKee. Arguing counsel were Robert Pickett of Pickett and Craig for the defendant and Desiree Grace of the NJ US Attorney’s office for the government.

Column: activist judges decided transgender-bathroom appeal, en banc rehearing request likely

Tony Perkins, the president of the conservative Family Research Council who gained attention earlier this year for saying that President Trump gets “a mulligan” for his alleged affair with Stormy Daniels, wrote a column published today at Patriot Post, the headline of which described the three-judge Third Circuit panel who decided the recent transgender-bathroom appeal as “Activist Judges.”

Describing co-counsel for the plaintiffs as “our friends,” and quoting one of them in his column, Perkins writes, “odds are the group will appeal to the full Third Circuit court.”

In another media interview published yesterday in the Mercury News, the same lawyer said, “The Supreme Court has already spoken,” and, “[t]his decision is out of step with longstanding legal protection for privacy.” That story similarly reports that the advocacy groups who brought the suit are considering an appeal.

In his column, Perkins writes that cases like this one show “why President Trump’s judicial confirmations matter”:

Back in November of last year, the Senate sent reinforcements to the Third Circuit in the form of Judge Stephanos Bibas, the first White House pick to fill a vacancy on that bench. Two more are waiting in the wings — Paul Matey and David Porter, both strict constructionists who are waiting for their turn on the fast track of Sen. Chuck Grassley’s (R-IA) committee. Once they make it through the process (which, given the lightning-quick pace of this Senate’s confirmations, could be any day) maybe they can help inject some common sense into Alexis’s case.

 

Written judgment issued in transgender-bathroom appeal

The Third Circuit panel today issued a judgment in Doe v. Boyertown Area School Dist., No. 17-3113. A link is here. As I posted here earlier, the panel heard oral argument this morning and ruled from the bench shortly after.

The judgment states that a formal opinion will be issued later but the judgment will issue now. It states that the court affirms the district court’s denial of a preliminary injunction for substantially the reasons given in the district court’s “exceptionally well reasoned” opinion.

I’m eager to hear the audio of the oral argument, which the court has not yet posted.

Apart from being an important case, the procedural mechanics of the panel’s action here are notable. The judgment was posted on the precedential opinions page of the court’s website, but I don’t think this is a precedential opinion — it is not labeled as precedential nor titled as an opinion of the court — and, given the rapid timeframe, I’d guess it was not circulated to the entire court before entry as draft precedential opinions normally are, and as the formal opinion it mentions likely will be. That’s why I’ve referred to the earlier oral ruling and this written judgment as an action by the panel, like a non-precedential opinion, rather than a decision by the Third Circuit. But I’m not certain I’ve got that right, and I suspect it will not matter in the end.

Court affirms in transgender-bathroom appeal … a half hour after oral argument [updated with judgment andaudio]

A panel of the Third Circuit heard oral argument today, held a brief recess, and then reconvened and announced that it would affirm the ruling below. Quite extraordinary.

The case involved access by transgender school students to the bathroom of their choice — that is, whether a school district could allow transgender students to use the bathroom corresponding with their gender, not their sex at birth. The suit was brought by school parents who claimed that the policy violated other students’ bodily privacy rights. The district court ruled in favor of the school district. Today’s argument was before Judges McKee, Shwartz, and Nygaard.

I wasn’t aware of a specific case where a Third Circuit panel had ruled from the bench after argument, but on Twitter Katie Romano pointed to a 2008 immigration appeal where it had happened. [UPDATE: Andy Simpson also pointed me to a 2001 Virgin Islands appeal where Chief Judge Becker read an opinion from the bench after argument, In re: Application for Change or Reassignment of Judge Pursuant to 28 U.S.C. §§ 144, 455 (3d Cir. May 30, 2001).] Still, extremely rare.

Early coverage by Jeremy Roebuck for the Philadelphia Inquirer here and by Bobby Allyn for WHYY here. UPDATE: and Mark Joseph Stern has a report for Slate here.

From Roebuck’s story:

Circuit Judge Theodore McKee said he and his colleagues – Judges Patty Shwartz and Richard Lowell Nygaard – recognized how important the case was to students at Boyertown Area Senior High School and wanted to resolve the issue before the students at the heart of the case, many of them seniors, graduated later this month.

Reading an order from the bench, McKee said that the judges agreed with the lower court that found the privacy of four students who sued the district in the Berks County borough last year had not been violated by administrators’ decision to allow transgender students into the bathrooms and locker rooms of their choice.

“We agree that the plaintiffs have not demonstrated a likelihood of success,” McKee said, reading from the bench, “and that they have not demonstrated that they will be irreparably harmed.”

UPDATE #2: The written judgment, issued the same day as the argument, is here.

UPDATE #3: The audio of the oral argument is here, and the ruling audio is here.

Cert denied in eye-drops case

The Supreme Court this morning denied certiorari in Alcon Laboratories v. Cottrell, a Third Circuit case I’ve mentioned here:

  • Third Circuit opinion summary — link
  • blog post about the rehearing petition —  link

[Update: I’ve edited this post to remove a mistaken link to a post about a different case.]

Audio of yesterday’s en banc argument, plus four new argument videos

The en banc Third Circuit heard oral argument yesterday morning in Hayes v. Harvey, a significant public-housing-law appeal. My prior posts on Hayes are here and here. Audio of the argument is up already on the court’s website here.

I also just noticed that the Court has posted on its website video of four April arguments. Judges Chagares, Vanaskie, and Fisher heard all four. Two are federal criminal appeals and the redoubtable Bob Zauzmer argued them both for the government (arguing two cases the same day would be my demise). And my fellow Third Circuit Bar Association board member Lisa Rodriguez of Schnader argued Ortiz.

New opinions — one consumer wins a credit-card appeal, another one loses an insurance appeal

These two opinions were issued yesterday, May 16, but I had a big oral argument in the afternoon and was too beat to summarize them.

Krieger v. Bank of America — civil / consumer — reversal — Krause

The Third Circuit ruled in favor of a consumer plaintiff in a credit-card dispute with Bank of America. The opinion’s introduction neatly summarizes matters:

The same day Appellant William Krieger fell victim to a credit card scam and discovered a fraudulent $657 charge on his bill, he protested to his card issuer, Bank of America (BANA), and was told both that the charge would be removed and that, pending “additional information,” BANA considered the matter resolved. And indeed, Krieger’s next bill reflected a $657 credit. But over a month later Krieger opened his mail to some particularly unwelcome additional information: BANA was rebilling him for the charge. He disputed it again, this time in writing, but after BANA replied that nothing would be done, he paid his monthly statement and then filed this action, alleging BANA violated two consumer protection laws: the Fair Credit Billing Act, which requires a creditor to take certain steps to correct billing errors, and the unauthorized-use provision of the Truth in Lending Act, which limits a credit cardholder’s liability for the unauthorized use of a credit card to $50. The District Court granted BANA’s motion to dismiss the operative complaint after determining Krieger had failed to state a claim as to either count. Because we conclude the District Court’s decision was contrary to the text, regulatory framework, and policies of both statutes, we will reverse.

Joining Krause were Ambro and Conti WDPA by designation. The district judge was MDPA Judge Brann. Arguing counsel were Brett Freeman of the Sabatini Law Firm for the consumer and Michael Falk of Reed Smith for the bank.

American Orthopedic & Sports Med. v. Independent Blue Cross Blue Shield — ERISA — affirmance — Krause

The Third Circuit rejected an insured’s argument that ERISA bars insurance companies from enforcing anti-assignment clauses (clauses in health insurance plans that prevent the insured from assigning their claim to a third party including the healthcare provider). The court disagreed with two other circuits that viewed the issue as controlled by statutory language, but in the end agreed with all circuits to reach the issue that the clauses were enforceable. The court left open the possibility that a would-be assignee could instead proceed in a power-of-attorney capacity, but held that here that argument was waived.

Joining Krause were Ambro and Rendell. Arguing counsel were Samuel Saltman of Callagy Law for the appellant, and Susan Danielski of Dugan Brinkmann and Michael Holzapfel of Becker for the insurers. 

New opinion — en banc Third Circuit rejects FDCPA discovery rule

Rotkiske v. Klemm — civil / consumer — affirmance — Hardiman

In a rare unanimous en banc opinion, the Third Circuit today split with two other circuits and held that the Fair Debt Collection Practices Act’s statute of limitations begins to run when the violation occurs, not when it is discovered. The opinion is crisp and clear: “In our view, the Act says what it means and means what it says.”

The opinion was unanimous with the entire active court plus Judge Fisher. Arguing counsel were Matthew Weisberg of Weisberg Law and Adina Rosenbaum of Public Citizen for the appellant and Carl Zapffe of Kentucky for the appellees. Video of the argument is here.

New opinion — Third Circuit rejects limit on attorney-fee recovery in IDEA suit

Rena C. v. Colonial School Dist. — civil / disability — reversal — Fisher

(I’m posting this later than usual because I had a moot today for my upcoming Third Circuit argument.)

The Third Circuit today ruled in favor of a plaintiff who prevailed in a suit under the Individuals with Disabilities Education Act in a dispute over attorney’s fees. The opinion’s introduction explains the context:

Under the IDEA, when parents and school districts dispute a child’s educational placement, a parent may file an administrative due process complaint that can lead to an administrative hearing. At least ten days before the dispute reaches a hearing, the school district can extend a settlement offer to the parent, referred to herein as a “ten-day offer.” If the matter proceeds to a hearing and the parent is the prevailing party, this ten-day offer becomes significant. A parent who is the prevailing party may be awarded reasonable attorney’s fees under the IDEA, but the ten-day offer allows a school district to limit its exposure to such fees by limiting a parent’s eligibility for attorney’s fees to only those fees accrued before the time of the ten-day offer. If a parent rejects the ten-day offer, the parent may only receive attorney’s fees for work done after the time of the offer if (1) the hearing leads to more favorable relief than the offer included, or (2) the parent was substantially justified in rejecting the offer.

Joining Fisher were Nygaard and Greenaway; Greenaway also concurred to express his hope that IDEA litigants will negotiate in good faith instead of simply rejecting “terse or inexact offers.” Arguing counsel were David Berney for the trial plaintiff and Karl Romberger of Sweet Stevens for the school district.

Supreme Court grants certiorari to review Third Circuit maritime asbestos-liability ruling

The Supreme Court today granted certiorari in Air & Liquid Systems v. Devries, No. 17-1104. This case comes from the Third Circuit, where it was captioned In re: Asbestos Prods. Liability Litig (No. VI). The Third Circuit opinion is here, my summary is here. The gist is whether maritime law recognizes a “bare metal” defense against liability from asbestos injuries for a manufacturer who delivered a product before its asbestos was added.

New opinion — Third Circuit affirms dismissal of in rem maritime suit

Liberty Woods Int’l v. The Motor Vessel Ocean Quartz — maritime — affirmance — Roth

The Third Circuit today upheld the dismissal of a shipping customer’s suit against a cargo ship, in rem, for damage to its cargo. The introduction explains:

Liability for the damage is governed by the carrier’s bill of lading, which contains a forum selection clause requiring suit to be brought in South Korea. LWI instead sought to bring an in rem suit against the Vessel in the District of New Jersey, arguing that the foreign forum selection clause violates the Carriage of Goods by Sea Act (COGSA) because South Korea does not allow in rem suits.

The court affirmed on the ground that the forum-selection clause doesn’t violate COGSA because in rem suits are not substantive rights under COGSA.

Joining Roth were McKee and Ambro; Ambro also concurred separately to note that in rem suits provide a way to impose liability and that COGSA requires that shippers have a means to collect damages against the value of the ship. Arguing counsel were Craig English of New York for the customer and Richard Whelan of Palmer Biezup for the ship.

 

New opinion — Third Circuit allows religious employer to intervene in contraception-coverage suit

Commonwealth of Pa. v. President United States — civil — reversal — Hardiman

The Third Circuit today reversed a district court’s order denying intervention by a religious employer into a suit brought by Pennsylvania against the Trump administration challenging its executive orders exempting both religious non-profits and for-profit employers morally opposed to contraception from relevant parts of the Affordable Care Act.

Reversing under abuse-of-discretion standard, the Third Circuit held that the employer, a Pittsburgh retirement home operated by a Catholic non-profit corporation, had a sufficient interest in the case and that, although they sought the same relief as the President of the United States, the Department of Health and Human Services, the Treasury Department, and the Labor Department, their interests were not adequately protected by the existing parties.

In the key passage, the court reasoned:

First, the Little Sisters’ situation is similar to Trbovich, where a statute obligated the Secretary of Labor to uphold the “related[] but not identical” interests in enforcing the rights of union members against their union as well as the “public interest” in assuring free and democratic
union elections. 404 U.S. at 538–39. Zubik likewise tasked the government with serving two related interests that are not identical: accommodating the free exercise rights of religious
objectors while protecting the broader public interest in access to contraceptive methods and services. And like Benjamin, the Zubik compromise must balance the rights of “two groups with quite divergent desires and interests.” 701 F.3d at 958. Finally, as in Kleissler, the government must defend “numerous complex and conflicting interests.” 157 F.3d at 973. The religious exemption IFR applies not only to religious nonprofit corporations like the Little Sisters, but also to closely held and publicly traded for-profit corporations. And the moral exemption IFR protects parties for reasons unrelated to religion. The religious and moral interests of these entities are numerous and varied. Accordingly, there is no guarantee that the government will sufficiently attend to the Little Sisters’ specific interests as it attempts to uphold both IFRs in their entirety. See Kleissler, 157 F.3d at 967 (concluding that the proposed intervenors had carried their burden by showing “a reasonable doubt whether the government agency would adequately represent [their] concerns”).

Since the government’s interest will always be broader than a would-be-intervenor’s, this reasoning seems in tension with the circuit’s precedent presuming that the government is an adequate representative and that a district court’s denial of intervention is reviewed for abuse of discretion only. A petition for rehearing en banc seems inevitable.

Joining Hardiman were Bibas (in what I believe is his first vote in a precedential appeal) and Roth. Arguing counsel were Michael Fischer for Pennsylvania and Lori Windham of the Becket Fund for Religious Liberty for the employer.

New opinion — Third Circuit rejects legislative-immunity defense [updated]

US v. James — criminal — affirmance — Smith

The Third Circuit today upheld a district court’s ruling a Virgin Islands legislator may be tried for fraud and embezzlement, rejecting the defendant’s argument that his alleged conduct (skimming and phony billing in connection with a legislative project, basically) was protected by legislative immunity.

Joining Smith were McKee and Scirica. Arguing counsel were Vijay Shanker of the DOJ Appellate Section for the government and Brandan Hurson of the USVI FD for the defendant.

[Note: my original post incorrectly stated that the court upheld the defendant’s convictions, but this was an interlocutory appeal and he has not been tried yet. My thanks to Howard Bashman for pointing out the error to me.]

New opinion — Third Circuit sets out new rule for traditional trusts’ jurisdictional citizenship

GBForefront v. Forefront Mgmt — civil — reversal — Jordan

What a stellar opinion introduction:

This case requires us to consider whether, in assessing
diversity-of-citizenship jurisdiction under 28 U.S.C. § 1332(a),
the citizenship of a traditional trust is determined differently
than that of a business trust. In light of the Supreme Court’s
decision in Americold Realty Trust v. Conagra Foods, Inc., 136
S. Ct. 1012 (2016), we conclude that the citizenship of a
traditional trust is based only on the citizenship of its trustee.
In so holding, we acknowledge that Americold Realty
abrogates part of our opinion in Emerald Investors Trust v.
Gaunt Parsippany Partners, 492 F.3d 192 (3d Cir. 2007),
which stated that it was unnecessary to distinguish between
types of trusts when determining diversity jurisdiction. Id. at
198 n.10, 205.

Based on the distinction we recognize today between
traditional trusts and business trusts, we will vacate the District
Court order dismissing this case for lack of jurisdiction.
Because the record on appeal is insufficient for us to proceed
further, we will remand the case with instructions to determine
whether the trusts at issue are of the traditional or business
variety and whether there is diversity jurisdiction. We also
instruct the District Court to give leave to further amend the
complaint within a reasonable time to cure defective
jurisdictional allegations.

Nothing left for me to say.

Joining Jordan were Roth and Mariani MDPA by designation. Arguing counsel were Christopher Nucifora of Kaufman Dolowich for the appellant and Gary Fellner of New York for the appellees.

New opinions — a de facto life sentence for a juvenile offender violates the Eight Amendment, and sexting between consenting teenagers is enough to support deportation

United States v. Grant — criminal / sentencing — reversal in part — Greenaway

In 2012, the Supreme Court held in Miller v. Alabama that mandatory sentences of life without parole for juvenile offenders violate the Eighth Amendment, Today, in a major juvenile-sentencing decision, the Third Circuit extended Miller to hold that a 65-year sentence for homicide crimes committed at age 16 was unconstitutional. From the introduction:

This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender’s life expectancy (i.e., “de facto LWOP”) when the defendant’s “crimes reflect transient immaturity [and not] . . . irreparable corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court’s determination that the Eighth Amendment affords nonincorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to “a punishment that the law cannot impose upon [them].” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)).

Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders.

The court held, ” A term-of-years sentence without parole that meets or exceeds the life expectancy of a juvenile offender who is still capable of reform,” which the court held includes all non-homicide offenders, “is inherently disproportionate and therefore violates the Eighth Amendment under both Miller and Graham.” The court joined the Seventh, Ninth, and Tenth Circuits, and split with the Eighth, on the applicablity of Miller and Graham to de facto life sentences.

Joining Greenaway were Cowen in part and Padova EDPA by designation. Judge Cowen dissented in part, joining the Eighth Amendment holding in full but disagreeing with the majority’s denial of sentencing relief as to additional counts based on the sentencing-package doctrine.

Arguing counsel were Lawrence Lustberg of Gibbons for the appellant and Bruce Keller for the government.

 

Moreno v. AG — immigration — affirmance — Vanaskie

Today, the Third Circuit held that a Pennsylvania conviction for possessing child pornography, 18 Pa. Cons. Stat. § 6312(d), is a crime involving moral turpitude supporting removal. The petitioner was a 49-year-old man who lived legally in the U.S. since age 12, pled guilty to a single count, and was sentenced to probation.

Applying the categorical approach (the opinion in a footnote echoed concerns raised about the categorical approach in other recent Third Circuit opinions), the court held that the least culpable conduct under the statute — consensual ‘sexting’ between an 18 year-old and a 17 year-old — is morally turpitudinous. But the opinion seemed to base that conclusion on little more than the fact that such conduct is criminal, which strikes me as questionable. Lots of conduct is subject to prosecution without being “inherently base, vile, or depraved.” Does anyone really believe that sexting between two consenting teenagers is depraved?

Joining Vanaskie were Shwartz and Fuentes. Arguing counsel were Wayne Sachs of Philadelphia for the petitioner and Jaclyn Shea for the government.

 

 

New opinion — Third Circuit rules against Citgo in Delaware River oil-spill appeal

In re: Petition of Frescati Shipping — civil / admiralty — reversal in part — Smith

An oil tanker struck an abandoned anchor resting on the bottom of the Delaware River and spilled over a quarter-million gallons of crude oil, a spill that cost $143 million to clean up. Predictably, years of complicated litigation (including a 41-day trial and a 31-day post-remand hearing)  ensued over who must pay the clean-up bill: the shipper, the oil company (Citgo, represented here by Carter Phillips), or the government.

Today, the Third Circuit issued a 61-page opinion that, broadly speaking, came out in favor of the shipper and the government and against Citgo. The opinion decided numerous issues, notably that Citgo was not equitably entitled to a 50% reduction of its clean-up cost to the government and that Citgo waived a defense by first raising it 10 years into the case. The opinion is a gem, engaging and clear.

Joining Smith were Hardiman and Brann MDPA by designation. Arguing counsel were Timothy Bergère and John Levy of Montgomery McCracken for the shipper, Anne Murphy of the DOJ appellate section for the government, and Carter Phillips of Sidley Austin for the oil company.

Supreme Court reverses Third Circuit appealability ruling

Today the Supreme Court reversed the Third Circuit’s non-precedential 2016 ruling in Hall v. Hall. The vote was 9-0, and the opinion was written by Chief Justice Roberts. The Supreme Court opinion is here, the Third Circuit opinion is here, and the Scotusblog case page with the briefs and more is here. The Court held that, ” when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.”

The case is of interest to this blog not merely because it arose from the Third Circuit, but also because the winning side was represented by Andrew Simpson, who is the President-elect of the Third Circuit Bar Association. Andy is a terrific lawyer in St. Croix in the Virgin Islands. (Regular readers of this blog also will remember he shared his first-hand account of the hurricane devastation last fall.) My hearty congratulations to Andy on a magnificent win.

 

New opinion: Uber wins Third Circuit antitrust appeal

Phila. Taxi Assoc. v. Uber Technologies – antitrust – affirmance – Rendell

The Third Circuit today emphatically upheld the dismissal of an antitrust suit brought by Philadelphia taxi operators against Uber. It was a sweeping victory for Uber: the taxi operators lost on all three elements of proving anti-competitive conduct, and for good measure they lost on antitrust standing, too. Uber may have harmed its competitors,  the court concluded, but it did not harm competition.

Joining Rendell were Ambro and Krause. Arguing counsel were John Innelli of Philadelphia for the taxi operators and Steven Reed of Morgan Lewis for Uber.

New opinions — habeas and tax appeals, both featuring waiver [updated]

Bennett v. Superintendent — habeas corpus — reversal — Restrepo

The Third Circuit today ruled in favor of a habeas corpus petitioner, holding that erroneous jury instructions deprived him of due process. [Disclosure: I provided consulting assistance on the appeal to petitioner’s counsel.]

The court concluded that the faulty instructions could lead the Pennsylvania jury to believe that a defendant who had no specific intent to kill could still be found guilty of murder based on an accomplice’s intent. The language from the instructions is quoted at p.34 of today’s opinion. The court’s review was de novo because the Pennsylvania courts failed to address the claim during state post-conviction proceedings. The court also held that the Commonwealth waived the harmless-error defense by failing to assert it unequivocally in this appeal.

Joining Restrepo were Ambro and Nygaard. Arguing for the petitioner were Drexel law Appellate Litigation Clinic students Ke Gang and Mischa Wheat, supervised by Richard Frankel. The court thanked the clinic  its “skillful pro bono advocacy.” Arguing for the Commonwealth was former Vanaskie clerk Christopher Lynett of the Philadelphia DA’s Office.

 

Spireas v. Commissioner IRS — tax — affirmance — Hardiman

In a high-stakes tax appeal, the Third Circuit today held that the taxpayer waived his argument on appeal by failing to assert it before the tax court. The taxpayer is a pharmaceutical scientist who earned $40 million in royalties in just two years, and the dispute was over whether this income was capital gains taxed at 15% or regular income taxed at 35%. The court did not discuss the merits of the waived claim.

Joining Hardiman was Shwartz. Judge Roth dissented, arguing that the taxpayer had not waived its argument. Arguing counsel were Brian Killian of Morgan Lewis for the taxpayer and Clint Carpenter of the DOJ Tax Division for the government.

UPDATE: on June 1, 2018, the panel issued an amended opinion along with an admirably clear order noting what had changed (two footnotes discussing waiver). The link above now goes to the new opinion; the old opinion is here.

 

Two new opinions

The Third Circuit issued two published opinions yesterday.

Haberle v. Troxell — civil rights / disability — partial affirmance — Jordan

A severely depressed man with a gun was in an apartment threatening to kill himself. Fearing for the man’s life, his longtime partner called the Nazareth, PA, police to help. But instead of waiting for trained crisis negotiators to arrive, a local police officer called his fellow officers “a bunch of fucking pussies” and decided to go in himself because “[t]his is how we do things in Nazareth.” When the officer knocked on the door and identified himself as a police officer, the man inside killed himself.

The man’s estate sued the officer and the borough, alleging various constitutional violations and violation of the Americans with Disability Act. The Third Circuit yesterday upheld the dismissal of the constitutional claims, holding that the officer’s conduct does not shock the conscience, but remanded to allow the plaintiff to amend her ADA claim, holding that the ADA applies to police officers making an arrest.

Joining Jordan were Greenaway and Rendell; Greenaway concurred separately to argue that ADA relief should be available under a different provision in the statute as well. Arguing counsel were Joseph Walsh of Lauer & Fulmer for the estate and John Morgenstern of Deasey Mahoney for the defendants.

 

Lewin v. AG — immigration — affirmance — Jordan

The Third Circuit held that a conviction under New Jersey’s receiving-stolen-property statute is an aggravated felony supporting removal. The court rejected the petitioner’s argument that the statute failed to require proof of mens rea beyond a reasonable doubt where it required that the petitioner believe that the property is probably stolen.

Joining Jordan were Roth and Mariani MDPA by designation. The case was decided without oral argument.

New opinion — defendant defeats class-action commonality by promising not to raise a class-wide defense

Gonzalez v. Owens Corning — civil / class action — affirmance — Hardiman

The Third Circuit today affirmed a district court’s order denying class certification in a high-stakes consumer-class-action appeal. The underlying suit alleged that Owens Corning sold roof shingles with warranties of 25 years or more when, in reality, their expected useful life was considerably shorter.

The court affirmed because the proposed class ” cannot satisfy Rule 23(a)’s commonality requirement because the only common question it poses can be answered only by way of an advisory opinion, which is forbidden by Article III.” There was a key legal issue that was common to the class–whether a particular defense applied to their claims–but Owens Corning promised not to raise the defense, so the Court ruled that deciding the issue would amount to an advisory opinion.

The court also rejected the plaintiffs argument that the shingles were a defective product where not all of them had the defect causing premature failure.

Joining Hardiman were Chagares and Jordan. Arguing counsel were Professor Robert Klonoff of Oregon for the plaintiffs and Carter Phillips of Sidley Austin for Owens Corning.

Two new opinions: one PLRA, one TCPA

Paladino v. Newsome — prisoner civil rights — reversal in part — Fuentes

The Third Circuit today ruled in favor of a prisoner alleging he was the victim of excessive force, holding that the district court erred in granting summary judgment for failure to exhaust the claim because there was a genuine issue of material fact on exhaustion. The district court ruled without notice to the parties, and the Third Circuit held that ” some type of notice and an opportunity to respond are needed before a district court elects to decide factual disputes regarding exhaustion.”

Joining Fuentes were Chagares and Vanaskie. Arguing counsel were Schnader Harrison associate Rachel Horton for the prisoner and Christopher Josephson for the state defendants.

 

City Select Auto Sales v. David Randall Assocs. — consumer — affirmance — Hardiman

A roofing company hired another company to send out tens of thousands of unsolicited advertisements by fax. One recipient sued the roofing company and its co-owner under the Telephone Consumer Protection Act. He obtained a judgment against the roofing company for over $22 million, which sounds about right to me. The suit against the co-owner personally went to trial, the plaintiff lost, and he appealed. Today, the Third Circuit affirmed, rejecting challenges to the jury instructions and a response to a jury question.

Joining Hardiman were Vanaskie and Shwartz; Shwartz also concurred separately to disagree with dicta in the main opinion questioning whether a corporate officer can be personally liable under the TCPA. Arguing counsel were Daniel Cohen of Chicago for the trial plaintiff and Emmett Fitzpatrick III of Flamm Walton for the reviled fax-ad senders.

Third Circuit upholds refusal to re-open case to challenge million-dollar award after lawyer misses a deadline

The Third Circuit issued a non-precedential opinion yesterday that will scare the living bejeezus out of lawyers.

Here’s what happened, as described in the opinion (emphasis mine):

Quebec filed an involuntary bankruptcy petition against John Doe, which the Bankruptcy Court dismissed. Doe then filed a motion asking the Bankruptcy Court to declare Quebec’s petition to be in bad faith and for damages. Quebec failed to appear at the hearing on the motion allegedly due to the then-hospitalization of Quebec’s representative, and on March 24, 2015, the Bankruptcy Court granted the motion and awarded approximately $1 million in punitive damages. Quebec then retained its current counsel. Twenty-one days after the appeal deadline passed, Quebec sought an extension of time for filing the appeal, asserting that it did not receive a copy of the Bankruptcy Court’s March 24, 2015 order. The Bankruptcy Court denied the extension request. Quebec appealed that ruling to the District Court, and that same day, it received notice that it needed to file a designation of portions of the Bankruptcy Court record for the appeal by September 8, 2015. Quebec failed to do so, and the District Court dismissed the appeal on September 30, 2015 without an opinion. Quebec asserts that it failed to timely file the designation due to its counsel’s erroneous calendaring of the deadline as October 22, 2015.

The opinion doesn’t name Quebec’s current counsel, the lawyer who assertedly missed the district-court deadline, although he is identifiable on Pacer.

Quebec sought post-judgment relief from the dismissal, which the district court (after proceedings not relevant here) denied on the ground that the party had not shown excusable neglect. Still represented by the same lawyer, Quebec appealed.

The Third Circuit affirmed the denial of relief from the million-dollar judgment, stating:

“The District Court aptly found that counsel’s oversight could have been prevented through effective office procedures and reasonable diligence on the part of counsel in checking the bankruptcy docket.”

And:

Moreover, the District Court correctly observed that it was “difficult to excuse” counsel’s incorrect recording of the September 8 deadline as October 22, “nearly two months after he filed the notice of appeal (and received the email notification)” and far beyond the fourteen-day deadline, in light of “the appellate practice [Quebec’s counsel] professes to maintain.”

Ouch! And:

Although Quebec’s present counsel was retained after the Bankruptcy Court issued its decision on Quebec’s bad faith filing of the bankruptcy petition, reasonably diligent counsel entering at that late stage of the litigation would have reviewed the record, observed the history of dilatoriness and prior finding of bad faith, and ensured that future filings complied with all applicable rules and orders.

For the poor lawyer involved, this is no doubt horrifying.

For the rest of us, this case offers at least three points to consider:

  • Obviously, it is another ice-in-the-veins reminder that rules and deadlines matter, and sometimes they matter a lot.
  • Both the district court and the Third Circuit held the lawyer’s professed practice as an appellate lawyer against him in analyzing whether his error was excusable. (The lawyer’s firm’s website states, “WE ARE THE APPEALS FIRM IN PENNSYLVANIA,” for example.) Judges may use language like that against lawyers if something goes wrong.
  • Was it a blunder for this lawyer to handle an appeal in which his own actions below were at issue, rather than withdrawing for another lawyer to do the appeal? The same has been true of at least three other recent Third Circuit cases that turned out real badly for the lawyers involved. Lawyers who find themselves in this situation must think hard about whether new counsel for the appeal is in their clients’ best interests–and their own.

En banc Third Circuit rejects sentencing enhancement for mechanic

The en banc Third Circuit today decided a criminal-sentencing issue, and a three-judge panel decided the remaining sentencing issues in the case.

A quick recap of the procedural history may help. In June of last year, a Third Circuit panel reversed in part in a criminal sentencing appeal; Judge Greenaway dissented in part, arguing that the court should have reversed on an additional ground. The court then granted rehearing en banc with argument limited to the issue on which Judge Greenaway had dissented. A link to the oral argument is here, and I briefly discussed one side’s argument here.

Today, the court issued two opinions: an en banc opinion by Judge Greenaway and a panel opinion on the other issues by Judge Shwartz.

US v. Douglas (en banc opinion) — criminal sentencing — reversal — Greenaway

The en banc Third Circuit today held that an airline mechanic with access to restricted airport areas did not hold a position involving professional or managerial discretion under the § 3B1.3 of the US Sentencing Guidelines. The court refined the approach it took to analyzing when to apply that enhancement.

There were 7 judges in the majority, 4 dissenting. (The case was argued in October, so Judge Bibas did not participate.) Joining Greenaway were Smith, McKee, Ambro, Jordan, Krause, and Restrepo. The four dissenters split into two opinions: one by Shwartz joined by Chagares and Vanaskie, the other by Hardiman alone.

Arguing counsel were Arnold Bernard of Pittsburgh for the defendant and MIchael Ivory for the government.

US v. Douglas (panel opinion) — criminal sentencing — reversal in part — Shwartz

The panel issued an opinion that, according to a footnote, “essentially restates the original Panel opinion except for the issue addressed by the Court en banc.” My summary of the prior opinion is here.

 

New opinion — Third Circuit affirms criminal sentence

US v. Huynh  — criminal — affirmance — Hardiman

I’m slow posting today’s case because I had a Third Circuit oral argument today, pinch-hitting for a wonderful lawyer who realized he would be out of town the day of argument.

The Third Circuit today held that the government did not breach its plea agreement with a criminal defendant and the district court did not err in imposing sentencing-guidelines enhancements for being an organizer/leader and for relocating to avoid detection.

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

Supreme Court agrees to review Third Circuit takings case

The Supreme Court today granted certiorari to review a Third Circuit takings case, Knick v. Township of Scott. The Third Circuit opinion is here, and my summary of it said this (emphasis added):

A Pennsylvania township enacted an ordinance that authorizes officials to enter any property “for the purpose of determining the existence of and location of any cemetery” and compels private cemeteries to open themselves to the public during daylight hours.

The Third Circuit described the ordinance as “extraordinary and constitutionally suspect,” noting “it is difficult to imagine a broader authorization to conduct searches of privately owned property” and urging the township to abandon it. But the court affirmed dismissal of a suit challenging the ordinance, holding that the plaintiff lacked standing to raise a facial Fourth Amendment challenge because her rights were not violated and that her Fifth Amendment takings claim is not ripe because she had not first sought compensation under the state’s inverse-condemnation procedure.

The question upon which cert was granted today, from Scotusblog, is: “Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims.”

New opinion — Third Circuit decides a complicated medical-device-preemption appeal

Shuker v. Smith & Nephew — civil — reversal in part — Krause

By federal statute, the makers of certain medical devices who comply with stricter federal safety requirements get preemption from any state safety requirements. But some medical devices are made up of multiple components–if some components comply with the stricter federal standards, while others don’t, is a suit challenging the design of the entire device pre-empted?

Today, the Third Circuit described that question as an issue of first impression in the circuit courts. It answered it by holding that pre-emption is assessed component-by-component, not device-by-device, which in turn means that if the alleged defect in the device does not involve a freestanding defect in the non-preempted component — if it challenges only a defect in the preempted component, or (I think) the interaction between preempted and non-preempted components –then the claim is preempted.

Joining Krause were Jordan and Greenaway. Arguing counsel were Robert Astrachan of Zajac & Arias for the plaintiffs below and Sara Gourley of Sidley Austin and Joseph Lang of Florida for the device makers.

 

New opinion — Third Circuit upholds removal based on unlawful-contact-with-a-minor conviction

Mondragon-Gonzalez v. AG — immigration — affirmance — Vanaskie

The Third Circuit today granted the government’s motion to publish a previously non-precedential opinion denying an immigration petition for review. The court upheld the BIA’s ruling that the petitioner’s Pennsylvania conviction for unlawful contact with a minor qualified as a “crime of child abuse” supporting removal, deferring to the BIA’s statutory interpretation and by doing so arguably splitting with the Tenth Circuit.

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

New opinion: Third Circuit rejects effort to compel arbitration by non-existent forum

MacDonald v. Cashcall — civil / arbitration — affirmance — Shwartz

The introduction of today’s Third Circuit opinion rejecting lenders’ effort to compel arbitration of a borrower’s challenge to a 116% interest loan:

John MacDonald, on behalf of himself and a putative
class, sued CashCall, Inc., WS Funding, LLC, Delbert Services
Corp., and J. Paul Reddam (collectively “Defendants”) over a
loan agreement that he contends is usurious and
unconscionable. The agreement includes (1) a provision
requiring that all disputes be resolved through arbitration
conducted by a representative of the Cheyenne River Sioux
Tribe (“CRST”) and (2) a clause that delegates questions about
the arbitration provision’s enforceability to the arbitrator.
Defendants moved to compel arbitration, which the District
Court denied. Because the parties’ agreement directs
arbitration to an illusory forum, and the forum selection clause
is not severable, the entire agreement to arbitrate, including the
delegation clause, is unenforceable, and we will therefore
affirm.

Joining Shwartz were Hardiman and Vanaskie. (The opinion included a footnote that Judge Vanaskie would have affirmed on additional grounds.) Arguing counsel were Joseph Barloon of Skadden Arps for the lenders and Matthew Wessler of Gupta Wessler (a former Nygaard clerk) for the borrower.

 

New opinion — Third Circuit finds computer search violated Fourth Amendment but affirms on good-faith grounds

U.S. v. Werdene — criminal — affirmance — Greenaway

The Third Circuit today held that the government violated the Rule 41 of the Federal Rules of Criminal Procedure and the Federal Magistrates Act, and thus the Fourth Amendment, when it used “a form of government-created malware” (!) to search thousands of computers nationwide using a single warrant issued in Virginia. But the court affirmed, holding that the violation was shielded by the good-faith exception to the exclusionary rule.

Judge Nygaard concurred to discuss an important procedural point: whether an appellate court may affirm on a ground that the appellee conceded below. He writes, ” This is an interesting question and one that in my nearly three decades on this court I have not encountered.” He ends: ” I point out my thoughts on this matter nonetheless solely to remind practitioners of that old adage, ‘you cannot have it both ways.’ In my opinion, conceding a fact or a legal point in the District Court prevents us from affirming on that basis.”

Joining Greenaway were Nygaard and Fisher. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Michelle Morgan for the government.

 

New opinion — Third Circuit vacates insider-trading sentence

US v. Metro — criminal — reversal — Jordan

The Third Circuit today vacated a criminal sentence for insider trading due to insufficient factual findings in support of the district court’s decision to attribute others’ insider-trading gains to the defendant for sentencing purposes. The gist: ” When the scope of a defendant’s involvement in a conspiracy is contested, a district court cannot rely solely on a defendant’s guilty plea to the conspiracy charge, without additional fact-finding, to support attributing co-conspirators’ gains to a defendant.”

Joining Jordan were Hardiman and Scirica. Arguing counsel were Lawrence Lustberg of Gibbons for the defendant and Glenn Moramarco for the government.

New opinion — an interesting debt-collection-suit win

Tatis v. Allied Interestate — consumer / FDCPA — reversal — Hardiman

The Third Circuit today held that sending a settlement letter for a time-barred debt can be actionable under the Fair Debt Collection Practices Act even if the letter does not threaten legal action.

It’s a fascinating case for a few reasons:

  • the counsel match-up was David vs. Goliath–a junior consumer lawyer against a past president of the American Academy of Appellate Lawyers–and the junior lawyer won;
  • the panel was composed of the Third Circuit’s three most conservative active judges, but it ruled in favor of the consumer; and
  • the opinion was authored by Judge Hardiman, reportedly a Supreme court short-lister, and it pointedly disagreed with a dissenting opinion by another Supreme Court short-lister, Sixth Circuit Judge Kethledge.

Joining Hardiman were Chagares and Jordan. Arguing counsel were Ari Marcus of Yitzchak & Zelman for the consumer and James Martin of Reed Smith for the debt collector.

New opinion — appellate counsel’s ineffectiveness can’t excuse default

Greene v. Superintendent — habeas — affirmance — Vanaskie

The Third Circuit today held that a recent Supreme Court opinion foreclosed a habeas corpus petitioner’s argument that Martinez v. Ryan should be expanded to allow review of defaulted or untimely claims based on ineffective assistance of direct appeal (vs. trial) counsel.

Joining Vanaskie were Rendell and Fisher. Arguing counsel were Michael Wiseman for the petitioner and Catherine Kiefer for the state.

Two new opinions, both authored by district judges

In re: Processed Egg Prods. Antitrust Litig. — antitrust — reversal — Stark D. Del. by designation

The Third Circuit today reversed a district court’s grant of summary judgement in favor of the defendant in an antitrust price-fixing case. The court rejected the district court’s conclusion that the end purchasers of the product (eggs) lacked standing to challenge to supplier’s alleged supply collusion.

The allegations could make a cynic of you:

Egg producers participating in the certification program were required to increase their hens’ cage sizes and refrain from replacing hens that died with another laying hen (a practice known as “backfilling”). It is alleged that the animal welfare rationale offered for these practices is merely a pretext for the true goal of reducing egg supply to drive up egg prices.

The court defined the issue as one of first impression in the circuit:

whether a direct purchaser of a product that includes a pricefixed input has antitrust standing to pursue a claim against the party that sold the product to the purchaser, where the seller is a participant in the price-fixing conspiracy, but where the product also includes some amount of price-fixed input supplied by a third-party non-conspirator.

Joining Stark were Smith and Fuentes. Arguing counsel were Michael Brody of Jenner & Block for the purchasers and Carrie Mahan of Weil Gotshal for the suppliers.

 

Garza v. Citigroup — civil — affirmance — Conti WDPA

The lucid introduction:

Under Federal Rule of Civil Procedure 41(d), a district court may order a plaintiff who voluntarily dismisses an action and files a second action against the same defendant based upon a claim asserted in the first action to pay the “costs” incurred by the defendant in the first action. The issue presented (one of first impression in this Court) is whether a district court may award attorneys’ fees as “costs” under Rule 41(d). We conclude that attorneys’ fees may only be awarded as “costs” under Rule 41(d) when the substantive statute under which the lawsuit was filed defines costs to include attorneys’ fees. Because no such statute is involved here, and no other basis upon which attorneys’ fees may be awarded was properly raised with the United States District Court for the District of Delaware, we will affirm the decision of the District Court denying the request for attorneys’ fees.

In so ruling, the court joined a middle-ground position taken by the Fourth and Seventh Circuits, splitting with the Eighth Circuit on one side and the Sixth Circuit on the other.

The court also held that the appellant had waived an argument by failing to raise it below and first raising it in its reply brief. (Notable, given that the appellant was represented by a large firm.)

Joining Conti were Ambro and Krause. Arguing counsel were Bruce Birenboim of Paul Weiss for the appellant and Susan Burke of Maryland for the appellee.

New opinion — insurer’s rejection of proof of loss triggered statute of limitations

Migliaro v. Fidelity National — civil / insurance — affirmance — Rendell

Introductions this clear make my job easy:

The issue in this case is whether the rejection of a policyholder’s proof of loss constituted a “written denial of all or part of the claim,” thereby triggering the one-year statute of limitations that is set forth in every Standard Flood Insurance Policy (“SFIP”). After receiving a payment from Fidelity National Indemnity Insurance Company, based on an adjuster’s assessment of the damage to his property caused by Hurricane Sandy, Anthony Migliaro submitted a sworn proof of loss seeking additional compensation. Fidelity sent Migliaro a letter rejecting his proof of loss, and he filed suit. The District Court found that the letter rejecting Migliaro’s proof of loss was a “written denial of all or part of the claim.” Since Migliaro filed his complaint almost two years after he received the letter, the District Court dismissed the suit as time-barred. We affirm the District Court’s order. Although the rejection of a proof of loss is not per se a denial of the claim in whole or in part, it does constitute a denial of the claim if, as here, the policyholder treats it as such by filing suit against the carrier.

Joining Rendell were Ambro and Krause. Arguing counsel were Steven Feinstein of Zenstein Ballard for the insured and Francis Manning of Stradley Ronon for the insurer.

New opinion — employee fired for objecting to West Chester University’s alleged budgeting shenanigans has no First Amendment claim

Bradley v. West Chester Univ. — civil — affirmance — Brann MDPA by designation

West Chester University’s budgeting director allegedly was asked to change her report to make it show a deficit instead of a surplus so as not to put the university’s state appropriation at risk. She told an administrative committee that making that change would be unethical and possibly illegal. Two years later, she allegedly had another, similar disagreement. Soon after she was told she was not a cultural fit and her contract would not be renewed.  She sued her supervisor, the university, and the 14-university state higher-education system, alleging First Amendment retaliation and other claims. The district court ruled that her claims against the supervisor were barred by qualified immunity and her claims against the university were barred by Eleventh Amendment immunity.

Today, the Third Circuit affirmed. Without reaching qualified immunity, it held that the budget director’s speech was not constitutionally protected in the first place because it was made pursuant to her official duties. This seems like a reasonable application of controlling law, but still it is startling that an employee who ran right to the media would be on far safer ground than one who raised the same concern internally. The court also held that West Chester University and the university system were arms of the state entitled to Eleventh Amendment immunity.

Joining Brann were Smith and Hardiman. Arguing counsel were Daniel Kearney of Adams Kearney for the budget director and John Knorr III of the state AG’s office for the university and the university system.

Two new opinions — false claims and immigration

US ex rel. Greenfield v. Medco Health Solutions — civil / false claims — affirmance — Ambro

The Third Circuit today affirmed a district court’s grant of summary judgment in favor of the alleged false claimant in a qui tam case. The case arose when, first, a health-care provider made donations to charities then, second, two of those charities alleged recommended the provider to patients. The panel rejected the provider’s argument that the relator had to prove that the charities’ recommendation actually caused members to use the provider, but also rejected the relator’s argument that it was enough just to show that the recommendations were made and the provider submitted claims around the same time. The panel held that the relator lost because he failed point to any specific patient who was referred by the charities and for whom the provider later sought government reimbursement.

Joining Ambro were Krause and Conti WDPA by designation. Arguing counsel were Regina Poserina of Begelman Orlow for the relator, Craig Singer of Williams & Connolly for the provider, and Katherine Allen for the government as amicus. (Making this the rare Third Circuit case where a majority of the panel and a majority of the arguing counsel were women.)

 

Williams v. AG — immigration — affirmance — Smith

The Third Circuit today held that a conviction under Georgia’s forgery statute, which covers using a false name when signing a document, is an aggravated felony supporting removal. The petitioner was a lawful permanent resident who immigrated to the US when he was 13 months old; his parents, grandparents, siblings, and children all are US citizens. The court split with the Ninth Circuit.

Joining Smith were Hardiman and Brann MDPA by designation. Arguing counsel were Christopher Mauro of Dechert for the petitioner and Christina Greer for the government.

New opinion — bank robbery by intimidation is a crime of violence

United States v. Wilson — criminal sentencing — affirmance — Jordan

“If it were somehow in doubt before, we take the opportunity now to hold that bank robbery by intimidation is categorically a ‘crime of violence’ under the United States Sentencing Guidelines.” This, the opening sentence of today’s opinion, might be the most Judge-Jordan-ish opening sentence I’ve ever read, and I mean that as praise.

The opinion also held that the federal bank-robbery statute requires knowing conduct and that applying a sentencing enhancement was not plain error because it did not the affect the  sentence.

Joining Jordan were Hardiman and Scirica. Arguing counsel were Christy Martin of the EDPA federal defender for the defendant and Robert Zauzmer for the government.

Third Circuit schedules en banc arguments for February & May

The old news: just before the end of the year, the Third Circuit granted en banc rehearing in two cases, Hayes v. Harvey, an important public-housing appeal, and Vooys v. Bentley, a big deal for Virgin Islands litigants.

The new news: the court has now scheduled the Vooys oral argument for February 21 and the Hayes argument for May 16. In Vooys, the court also ordered supplemental briefing and granted amicus curiae the Virgin Islands Bar Association’s motion for leave to participate in the oral argument.

New opinion — divided panel upholds Eleventh Amendment dismissal

Karns v. Shanahan — civil — affirmance — Chagares

The Third Circuit today affirmed a district court ruling dismissing on Eleventh Amendment grounds a civil rights suit against NJ Transit. Although in a 1989 en banc ruling, Fitchik, the court held that NJ Transit is not an arm of the state entitled to Eleventh Amendment immunity, the court today observed that its analysis of such issues had since “fundamental[ly] shift[ed]” and its prior ruling was no longer binding.

Judge Roth dissented, beginning:

Were we writing on a blank slate, it would be within the prerogative of the Majority to decide this case as it does. But the slate is not blank. The precise question that we examine here, whether NJ Transit is an “arm of the state” entitled to Eleventh Amendment sovereign immunity,” we have already fully considered and resolved en banc in Fitchik v. N.J. Transit Rail Operations, Inc.1 Little has changed since we decided this question. Thus, stare decisis, principles of estoppel, and our own Internal Operating Procedures all require that we decline the invitation to overrule Fitchik. For this reason, I respectfully dissent from Part III of the majority opinion.

Joining Chagares was Restrepo. Arguing counsel were John Bloor of Drinker Biddle for the appellants and Jennifer McGruther of the NJ AG’s office for the appellees.

New opinion — Rooker-Feldman doesn’t bar bankruptcy trustee’s fraudulent transfer claims

In re: Philadelphia Entertainment & Development Partners — bankruptcy / civil — reversal — Greenberg

For all of you who’ve been dying for a Third Circuit Rooker-Feldman opinion–you know who you are–today’s your day. The Rooker-Feldman doctrine, today’s opinion explains, “deprives federal district and bankruptcy courts of jurisdiction over suits that are essentially appeals from state-court judgments.” (Cleaned up). Today’s opinion is about how Rooker-Feldman applies when a bankruptcy trustee alleges that a state-court ruling amounted to a voidable fraudulent transfer. The district court had ruled Rooker-Feldman barred review of the fraudulent-transfer claims, but today the Third Circuit reversed because review of the claims did not require review of the state-court judgment. The court rejected as unpersuasive a Seventh Circuit opinion relied on by the bankruptcy court.

By the way, the court posted this opinion on its website in the morning, instead of posting it around 12:34 p.m. as it always has. Fluke? Mistake? New practice? I’m curious.

Joining Greenberg were Chagares and Restrepo. The case was (surprisingly) decided without oral argument.

Two new opinions

Please excuse my cursory summaries today, I’m in the home stretch working on a big Third Circuit brief.

DiFiore v. CSL Behring — civil — affirmance — Fisher

The Third Circuit today affirmed a district court’s grant of summary judgement today in False Claims Act whistleblower case, holding that ” an employee’s protected activity must be the ‘but-for’ cause of adverse actions to support a claim of retaliation under the FCA.”

Joining Fisher were Vanaskie and Rendell. Arguing counsel were James Bell IV of Bell & Bell for the appellant and David Fryman of Ballard Spahr for the appellee.

 

Crystallex Int’l v. Petroleos de Venezuela — bankruptcy — reversal — Rendell

A divided Third Circuit panel today applied Delaware law to hold that a transfer by a non-debtor cannot be a fraudulent transfer under the Delaware Uniform Fraudulent Transfer Act.

Joining Rendell was Vanaskie; Fuentes dissented with a useful diagram. Arguing counsel were Nathan Eimer of Illiniois for the appellant and Robert Weigel of Gibson Dunn for the appellee.

New opinion — Third Circuit reverses summary judgment in FDCPA suit

Panico v. Portfolio Recovery Assocs. — civil — reversal — Restrepo

Applying Delaware statute-of-limitations law, the Third Circuit today reversed a grant of summary judgment in favor of the defendants in a putative class-action suit under the Fair Debt Collection Practices Act. The main dispute on appeal involved whether the defendant sought to collect on debts after the statute of limitations on those debts had already run.

Joining Restrepo were Vanaskie and Krause. Arguing counsel were Philip Stern of Stern Thomasson for the plaintiff and David Anthony of Troutman Sanders for the debt collector.

Another en banc grant today — this one is a big Virgin Islands case

I posted earlier today about the Third Circuit’s order granting rehearing en banc in Hayes v. Harvey. A thoughtful reader has alerted me that the court granted en banc rehearing today in a second case, too.

The case is Vooys v. Bentley, No. 16-3912. The order granting rehearing was issued sua sponte, and it indicates that a majority “determined that the case is controlled by a prior decision of the court which should be reconsidered.”

The “prior decision” appears to be United Industrial ex rel. Bason v. Gov’t Virgin Islands, a 2014 published opinion I discussed and linked to here. Bason held that, although Congress stripped the Third Circuit of its certiorari jurisdiction over Virgin Islands cases in 2012, the court retained cert jurisdiction over cases that were filed in VI courts before 2012.

Both the respondents and an amicus argued that Bason was wrongly decided and conflicted with prior Supreme Court caselaw. (The amicus, the VI Bar Ass’n, argued that Bason misapplied Sinochem to decide an issue without first confirming subject-matter jurisdiction, broadly the same argument I unsuccessfully made last year for rehearing in Hoffman v. Nordic Naturals.)

While nothing is certain, the posture of this order (sua sponte and prior to panel ruling) strongly suggests that overruling of Bason is likely. En banc grants in similar postures resulted in overrulings in Joyce, Rojas, Al-Sharif, and Quinn in recent years.

Third Circuit grants en banc rehearing in Hayes housing appeal

Today the Third Circuit granted en banc rehearing in Hayes v. Harvey, an important public-housing appeal. [Update: the order granting is now on the circuit website.] A divided panel had ruled in October that public housing residents had no right to remain in their homes despite statutory language that they “may elect to remain.” Judge Fisher authored the panel-majority opinion and was joined by Judge Hardiman; Judge Greenaway dissented. [Full disclosure: I provided some minor rehearing-stage consulting assistance to counsel for the appellants.]

My summary of the (now-vacated) panel opinion is here. I’m feeling clever because I began my post by saying I thought there was a realistic shot at en banc rehearing.

A couple nerdy points:

  • I’m unsure whether the court will schedule en banc argument for February or May. It may depend on whether the court believes supplemental briefing is needed. In Lewis, the court granted en banc rehearing on 11/25 and heard argument on 2/19, but this would be a month tighter, so we’ll see.
  • The order granting rehearing lists 13 judges (all 12 active judges including Judge Bibas, plus Fisher because he was on the panel), suggesting no recusals. No dissents were noted.
  • The rehearing petition was supported by two strong amicus briefs, including one for the city of Philadelphia. I’ve long believed that rehearing petitions are an under-utilized opportunity for effective participation by amici.

New opinion — Eleventh Amendment bars GSK’s challenge to state’s Flonase suit

In re: Flonase Antitrust Litig. — civil — affirmance — Greenaway

The Third Circuit today upheld a district court’s rejection of a pharmaceutical company’s effort to enforce a settlement and enjoin Louisiana from suing it in state court. The state argued that GSK’s effort violated the Eleventh Amendment.

The opinion answered two main questions:

First, does a motion for approval of a class action settlement qualify as a suit against a state for Eleventh Amendment purposes if the requested settlement agreement enjoins a state from suing in a state court? Second, if the Eleventh Amendment does cover this motion for settlement approval, may GSK avoid the Eleventh Amendment’s prohibition by showing that Louisiana waived its sovereign immunity? We find that the Eleventh Amendment covers this motion and that GSK may not avoid its bar.

Greenaway was joined by Chagares and Vanaskie. Arguing counsel were Lisa Blatt of Arnold & Porter for GSK (with supporting amici from several high-powered pro-business usual suspects) and John Alden Meade of Louisiana for the state.

New opinion — second time is the charm for ticket buyer suing the NFL

Finkelman v. NFL — civil — reversal — Fuentes

The introduction of today’s opinion:

Plaintiff Josh Finkelman had the once-in-a-lifetime opportunity to buy tickets to Super Bowl XLVIII held in his home state of New Jersey in February 2014. However, the National Football League (“NFL”) withheld almost all of these tickets—99%—from the general public for league insiders, offering the remaining 1% to lucky winners of a lottery that all could enter. To get his tickets, Finkelman turned to the secondary market, purchasing two tickets with a face value of $800 each for $2000 each. One month before the Super Bowl, he filed suit, alleging that the NFL’s ticket distribution violated New Jersey law. Specifically, Finkelman claims that the NFL’s withholding of more than 5% of the available tickets for the Super Bowl violated the New Jersey Ticket Law. He has now had two opportunities before our Court to show that he has Article III standing to pursue this claim. In our first decision on this subject, we found that he did not. He has since added claims about how the NFL’s secondary ticket market functioned and how the NFL’s actions raised ticket prices on the secondary market. The District Court found that these additional allegations remained insufficient to allege Finkelman’s standing. We disagree. Based on the plausible economic facts pleaded in Finkelman’s amended complaint, we conclude that Finkelman has standing and we therefore have subject matter jurisdiction over this case. We defer action on the merits of this appeal pending decision by the Supreme Court of New Jersey on the pending petition for certification of questions of state law.

My post on the prior appeal is here.

Joining Fuentes were Smith and Stark D.Del. by designation. Arguing counsel were Bruce Nagel of Nagel Rice for the ticketbuyer and Jonathan Pressment of Haynes & Boone for the league.

New opinion — firing employee for refusing to be vaccinated wasn’t religious discrimination

Fallon v. Mercy Catholic Med. Ctr. — civil — affirmance — Roth

An employee of a Catholic hospital refused to get a flu shot on grounds that he claimed were religious. When the hospital fired him, he sued, alleging religious discrimination. The district court dismissed his suit, and today the Third Circuit affirmed. The opinion includes a fascinating discussion of how “belief in God or diving beings was not necessary” for a belief to be considered religious: “nontheistic beliefs could also be religious within the meaning of the statute as long as they occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.” (Cleaned up). The opinion rejected the employee’s argument that his anti-vaccination views were religious.

Joining Roth were Smith and Jordan. Arguing counsel were Alan Schorr of Cherry Hill NJ for the employee and former Greenberg clerk Andrea Kirshenbaum of Post & Schell for the hospital.

Two new opinions

US v. Graves — criminal — affirmance — Roth

The Third Circuit today affirmed a criminal conviction and sentence, rejecting the defendant’s arguments that his motion to suppress should have been granted and that he should not have been sentenced as a career offender. The court deepened a circuit split over a subsidiary legal question, the level of force required to sustain a generic federal robbery conviction. It also held that the most important factor in determining the elements of a generic offense was the approach of the majority of states, not the Model Penal Code.

Joining Roth were Hardiman and Fisher. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and Stephen Cerutti II for the government.

 

Constitution Party of Pa. v. Cortes — elections  — reversal — Roth

Last year, the Third Circuit affirmed a ruling striking down certain laws that made it difficult for third parties to get on the ballot. On remand, the district court set new signature-gathering standards for third-party candidates, but it made no factual findings and gave no explanation for the standards it chose. Today, the Third Circuit held that this lack of fact finding requires reversal.

Joining Roth were Smith and Jordan. Arguing counsel were Oliver Hall of the Center for Competitive Democracy for the parties and Claudia Tesoro of the Pa. A.G.’s office for the appellee.

New opinion — an IDEA administrative-exhaustion appeal

Wellman v. Butler Area School Dist. — civil / disability — reversal — Shwartz

The Third Circuit today held that a plaintiff’s suit under the Americans with Disabilities Act, the Rehabilitation Act, and section 1983 was subject to the administrative-exhaustion requirement of the Individuals with Disabilities Education Act. Since the plaintiff earlier had released all claims that could have been brought at an administrative hearing, the Third Circuit held that this suit must be dismissed with prejudice, vacating the district court’s dismissal-without-prejudice order.

Joining Shwartz were Smith and Jordan. Arguing counsel were Edward Olds of Olds Russ for the student and Thomas Breth of Dillon McCandless for the district.

New opinion — Third Circuit reverses qualified-immunity error despite appellant’s forfeiture

Barna v. Board of School Directors — civil rights — partial reversal — Chagares

After a man was “threatening and disruptive” at several school board meetings, the school board banned him from attending any of its future meetings. The man sued the board and various individuals, alleging the denial of his First Amendment rights. The district court, adopting a magistrate judge’s recommendation, granted summary judgment to all defendants based on qualified immunity. Today, the Third Circuit reversed in part, upholding summary judgment for the individuals but reversing and remanding as to the school board, which under a 1980 Supreme Court ruling does not enjoy qualified immunity. The court did not decide whether the ban was in fact unconstitutional.

There was an interesting procedural wrinkle here: the appellant apparently inadvertently failed to argue that school boards are not entitled to qualified immunity. The Third Circuit held that the the issue was forfeited, not waived, and that “truly exceptional circumstances” existed to excuse the forfeiture given the district court’s clear legal error and the absence of surprise.

Joining Chagares were Greenaway and Restrepo. Arguing counsel were Jonathan Phillips of Orwigsburg, PA for the appellant and Thomas Specht of Marshall Dennehey for the school board. Also listed as counsel for the appellant was Gary Marchalk, who died tragically earlier this year.

 

Supreme Court solicits SG’s views on Fosamax case

The Supreme Court yesterday invited the Solicitor General to file a brief in Merck Sharp & Dohme v. Albrecht, No. 17-290. Merck’s petition for certiorari is pending. Justice Alito is recused.

When it was in the Third Circuit, this case was captioned In re: Fosamax. The Third Circuit opinion is here, my post on the opinion is here. Regular readers will recognize this as the case at the center of my ‘Blogging partner rampages …’ post.

New opinions — an en banc maritime appeal and a messy escheat appeal

Joyce v. Maersk Line — maritime — affirmance — Jordan

The en banc Third Circuit today unanimously overruled a circuit-outlier 1990 maritime case and held that “a union contract freely entered by a seafarer — a contract that includes rates of maintenance, cure, and unearned wages — will not be reviewed piecemeal by courts unless there is evidence of unfairness in the collective bargaining process.”

The court granted en banc rehearing sua sponte, after panel briefing but before panel oral argument. Shortly before the scheduled oral argument, the panel appointed Tulane Law professor Martin Davies as amicus curiae to discuss the case it later overruled. Today’s opinion thanked Davies for his “insightful” brief.

As noted the opinion was unanimous. Arguing counsel were Dennis O’Bryan of Michigan for the seaman and John Walsh of New York for the employer.

 

Marathon Petroleum v. Secretary of Finance — civil — partial affirmance — Jordan

This case arises from unspent money on gas-station gift cards; Delaware wanted to audit the gas-station companies to seize the unspent money as abandoned property. The gas-station companies sued, asserting that the state escheat law is preempted by federal common law. Today, the Third Circuit held that (1) private parties had standing to assert preemption by federal escheatment law, but (2) the companies’ claim was mostly unripe although dismissal should have been without prejudice. The court rejected on the merits the part of the claim that was ripe.

Joining Jordan were Chagares and Krause. Arguing counsel were Diane Green-Kelly of Reed Smith for the gas-station companies and Steven Rosenthal of Loeb & Loeb for the state.

Two new opinions, including a big qualified-immunity reversal

Kedra v. Schroeter — civil rights — reversal — Krause

A Pennsylvania state trooper died during a routine firearms training when the instructor allegedly failed to check whether a gun was empty before pointing it at the trooper’s chest and pulling the trigger. The slain trooper’s wife sued the instructor under 42 USC § 1983, alleging a due process state-created-danger claim. The district court ruled that the instructor was entitled to qualified immunity because he did not know that the gun was loaded. Today, the Third Circuit reversed, holding that the obviousness of a risk is relevant to prove that the state actor was aware of that risk and that here the wife sufficiently alleged the instructor’s awareness.

Judge Fisher concurred, although in my view it would have been more accurate to say he concurred in part and concurred in the judgment. He argued, among other points, that the majority’s reliance on the obviousness of the risk and the officer’s training was mistaken. He wrote:

I am concerned by the impact that the breadth of the majority’s decision could have on the law of qualified immunity. I am equally troubled by the recent trajectory of this Court’s jurisprudence.

Fisher closed by noting, “Perhaps the full Court will revisit the qualified immunity framework to reexamine whether it is consistent with the history of the Due Process Clause.” (Judge Fisher assumed senior status on February 1, and senior judges do not vote on whether to grant en banc rehearing.)

Joining Krause was Melloy CA8 by designation; Fisher concurred. Arguing counsel were Michael Quirk of Williams Cuker for the wife and Claudia Tesoro of the state AG’s office for the instructor.

 

US v. Ferguson — criminal — affirmance — Hardiman

The Third Circuit held that the district court did not commit plain error when it mentioned a defendant’s bare arrests at sentencing, distinguishing Mateo-Medina.

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

New opinion — Third Circuit grants resentencing in Guidelines-interpretation appeal

US v. Ley — criminal sentencing — reversal — Fisher

The Third Circuit today ruled in a criminal defendant’s favor in his appeal challenging the district court’s interpretation of a sentencing-guidelines provision. The introduction of the opinion succinctly explains the issue:

This case concerns the criminal history provisions of the Sentencing Guidelines. A defendant’s criminal history is calculated by assigning points for prior sentences. The Guidelines instruct that prior sentences “always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” United States Sentencing Commission, Guidelines Manual § 4A1.2(a)(2) (USSG). The question presented here is whether a traffic stop, followed by the issuance of a summons, constitutes an intervening arrest in the context of the criminal history Guidelines.

The court held that issuance of a summons does not count as an “arrest” for this purpose, joining three other circuits and splitting with the Seventh. The court also rejected the government’s argument that defendant waived the issue by failing to object to a supplemental PSR addendum.

Joining Fisher were Hardiman and Roth. Arguing counsel were Samantha Stern of the WDPA federal defenders for the defendant and Laura Irwin for the government.

 

Two lessons from the amended opinion in Mathias

Yesterday the court issued an amended opinion in Mathias v. Superintendent and an order explaining what changed. The changes themselves, which the court described as “minor,” are of interest mainly to habeas nerds like me (the court removed language that applied double deference to habeas review of IAC prejudice). But two practice points are worth noting.

First, the court explained in footnote 4 of the amended opinion that the language it was removing from its original opinion involved a disputed legal point “not specifically briefed by the parties in this case.” This happens, and alert counsel can use this case when it does.

Second, the court explained that the changes were made to address points raised by Mathias in his rehearing petition. Counsel for Mathias, Maria Pulzetti of the Federal Community Defender in Philadelphia (and a former colleague of mine), is a first-rate appellate lawyer, and it made a difference here. Many lawyers arguing for rehearing would just assert that the panel got it wrong, cite the relevant Supreme Court case, and call it a day. Many more would look no further once they found prior Third Circuit rulings that arguably conflicted. But Pulzetti evidently kept digging, because she figured out that the circuits were split on this issue. The court referred to this circuit split and cited the case Mathias cited in the amended opinion. Although rehearing was denied, Pulzetti’s diligence improved the opinion and benefited the Court.

A Third Circuit panel *really* didn’t like the district court opinion it was reviewing

A Third Circuit panel yesterday issued a non-precedential opinion in Betz v. Satteson, and, although they affirmed, they expressed their displeasure with the opinion below with gusto.

Right out of the gate, in the opinion’s second sentence, the panel said it was “troubled by the inappropriately caustic and derogatory tone of the District Court’s opinion.” Then a footnote added:

The District Court here issued a 125-page opinion peppered with gratuitous and disparaging remarks about Appellants and their child. Those entrusted with the solemn duties of judicial office are expected to handle proceedings in a manner that reflects the appearance as well as the reality of even-handed justice and respect for the litigants as well as for the law.

And the panel wasn’t done yet. Later on, the opinion said that images in the record “cannot be fairly characterized as the District Court described them” and hammered “the District Court’s incorrect and intemperate characterization of the video.”

Holy smokes.

The district court opinion is not like any district court opinion I’ve seen before. It speculates that the 13 year-old plaintiff’s injuries were “perhaps a timely form of divine retribution.” Its conclusion says that the case had wasted the court’s time (this on page 124 of its opinion), and advised the child to apologize and accept the consequences of his actions, “which advice he apparently has not received from his parents.”

(On a more mundane note, the district opinion also identifies the authors of most of the Third Circuit opinions it cites, which is a big no-no for briefs and something I’ve never seen in a district court opinion.)

The Third Circuit opinion was authored by Judge Krause and joined by Judges Ambro and Rendell. The district court judge was Judge Matthew Brann of the Middle District of Pennsylvania, who recently sat with the Third Circuit by designation and just authored a non-precedential opinion.

Quite remarkable.

New opinion — Third Circuit issues a major qui tam opinion recognizing government-knowledge and materiality defenses

US ex rel Spay v. CVS Caremark — qui tam — affirmance — McKee

The Third Circuit today affirmed on alternative grounds the dismissal of a suit under the False Claims Act. The district court had dismissed based on the government-knowledge defense; the Third Circuit recognized the defense but held it didn’t apply here. The court affirmed anyway, recognizing a materiality requirement for pre-2009 FCA suits and holding that it was not met here.

Senator Charles Grassley filed an amicus brief supporting the appellant and “arguing against the continued viability of the government knowledge inference.”

Joining McKee were Smith and Restrepo. Arguing counsel were Marc Raspanti of Pietragallow Gordon for the appellant and Enu Mainigi of Williams & Connolly for the appellees.

A look at the “insightful and compelling case” for en banc rehearing in the Cottrell eye-drops case

Stephen McConnell, a partner at Reed Smith in Philadelphia, has this thoughtful post, titled “A Second Look at Eye-Drop Litigation,” on the Drug & Device Law blog. The post is a close look at the petition for en banc rehearing recently filed in Cottrell v. Alcon Labs.

Here’s the heart of it:

The main points in favor of revisiting the Third Circuit’s decision are that it is contrary to Finkelman v. National Football League, 810 F.3d 187 (3d Cir. 2016), it “radically expands Article III standing,” and that it directly conflicts with Eike v. Allergan, Inc., 850 F.3d 315 (7th Cir. 2017).  Moreover, the plaintiff’s inherently speculative theory of injury in fact was rejected by federal courts in Massachusetts and Missouri.  (When a court comes out with a more pro-plaintiffy position than courts in Massachusetts and Missouri, that’s really saying something.)  That theory was also rejected by the district court in Cottrell.  And then the Third Circuit reversed that rejection.

An interesting post about a big case.

Regular readers may recall that a couple weeks ago I posted here (“Blogging partner rampages … “) criticizing blog posts by the same lawyer. In his post today, McConnell has this to say about it:

First, we have been so unkind about the Third Circuit’s error in the Fosamax case that we managed to attract the attention of the excellent CA3 blog.   In that blog, the author wondered whether our dissection of Fosamax was perhaps a bit more violent than necessary.  The author also wondered whether we were coming close to accusing the court of bad faith.  Yes to the former, but definitely No to the latter.  As we told the CA3 blog, we took issue with what we saw as bad reasoning, but never-ever thought there was any bad faith.  (The CA3 blog was generous enough to print our disclaimer.  Thanks for that.)  By and large, we are mighty proud of our home circuit.  We know several of the judges, and every one of them is honorable, hard-working, and much smarter than we are.  Sometimes we are not going to agree with the court’s decisions.  Luckily for us we work in a profession and live in a country where debate and criticism are allowed.

Gracefully said.

New opinion — Plaintiffs should have been allowed to amend complaint despite delay caused by attorney’s error

This opinion was issued yesterday. I normally post cases the same day, but I had a big deadline in my Texas capital habeas case.

 

Mullin v. Administrator — civil rights — partial reversal — Fuentes

The compelling introduction to yesterday’s opinion:

A little over two years into the civil-rights suit brought by Joan Mullin (“Mullin”) over the tragic prison suicide of her son, Robert Mullin (“Robert”), Mullin’s attorney received a discovery document with the potential to reshape the case. A previously undisclosed investigative report about the night Robert died contained statements by fellow New Jersey inmates about a prison guard who allegedly refused Robert’s requests for psychiatric assistance—and urged Robert to kill himself instead. But while Mullin’s attorney received this report mid-case, it was not reviewed in a timely fashion. Instead, due to a clerical error, the disc containing the relevant disclosures was misfiled, and not fully accessed until about ten months later. By that time, Mullin’s operative complaint—premised on a less direct knew-or-should-have-known theory of Robert’s vulnerability to suicide—had already been dismissed in large part. The District Court denied Mullin’s request for leave to amend her complaint, due in part to the delay caused by counsel’s error and, after additional motion practice, granted summary judgment in favor of the one remaining defendant, bringing the litigation to a close.

Mullin’s appeal encompasses both the dismissal of her operative complaint and the order denying further leave to amend. The latter is the focus of this opinion. For the reasons set forth below, we conclude that the decision denying leave to amend amounted to an impermissible exercise of discretion. Some of the factors relied upon to deny leave are not supported by the record or are at odds with our case law. And while we do not intend to minimize counsel’s mistake, it does not, standing alone, support denying leave to amend. Accordingly, we will vacate the order denying leave to amend and will remand for further proceedings.

I think most lawyers who’ve handled complex cases would (nervously) agree with the opinion’s later observation that the lawyers’ error  was “the kind that could affect any law firm no matter how well run.”

It’s an interesting case, an engaging opinion, and a significant ruling on amending civil complaints (and habeas petitions) under Rule 15.

Joining Fuentes were Chagares and Vanaskie. Arguing counsel were Shelley Stangler for the appellant and Gregory Bueno of the NJ AG’s office for the appellees.

New opinion — Third Circuit affirms bankruptcy dismissal on statutory-mootness grounds (updated!)

In re: Pursuit Capital Mgmt. — bankruptcy — affirmance — Jordan

The Third Circuit affirmed the dismissal of a challenge to a bankruptcy trustee’s sales of assets, holding that the appeal was statutorily moot under 11 USC § 363(m) because the challengers failed to seek a stay of the assets’ sale.

Snoots will be aghast that the opinion contains, “we conclude that the sale was affected in good faith,” although Garner’s Modern American Usage concedes that misusing affect for effect “is an old error that looks as if it will be increasingly difficult to stamp out.”

UPDATE: Snoots will be delighted that Judge Jordan issued this order the next day:

IT IS NOW ORDERED that the above captioned opinion be amended as follows:
Page 29, Section C, the first line, “affected” shall be changed to “effected”.

Joining Jordan were Krause and Stearns D.Mass by designation. Arguing counsel were Craig Martin of DLA Piper for the appellants and Wendy Reilly of Debevoise & Plimpton for the appellee.

New opinion — choice-of-law clause governs interpretation of forum-selection clause

Collins v. Mary Kay — civil / employment — affirmance — Restrepo

Law nerds, rejoice! ” This case … poses a layered choice-of-law question: what law governs the interpretation of a forum selection clause in a written agreement when that agreement also contains a choice-of-law clause?” The district court thought the answer was federal common law, and the plaintiffs thought the answer was the state law where they filed the suit, here, New Jersey. Neither was right.

The Third Circuit’s final answer to that question here was that Texas state law applied and that, applying Texas law, the suit belonged in Texas. This resulted in the court affirming dismissal on forum non conveniens grounds.

The reasoning that led to that final answer? Well, it’s damn complicated, or anyway its complicated enough to defy all my efforts at pithy summary here. So I’ll just throw up my hands and say: if you’ve got this issue (a) my condolences, and (b) read the fine opinion.

Joining Restrepo were Chagares and Roth. Arguing counsel were Ravi Sattiraju of the Sattiraju Law Firm for the appellant and Christine Amalfe of Gibbons for the appellee.

UPDATE: Bruce Greenberg has come to the rescue with a characteristically lucid summary in this post on his New Jersey Appellate Law blog.

 

New opinions — three new opinions, including a housing blockbuster and a big consumer class-action win, both with dissents

Hayes v. Harvey — housing — affirmance — Fisher

In a significant public-housing opinion that I think has a realistic shot at en banc rehearing, a split Third Circuit panel today held that public housing residents have no right to remain in their homes despite statutory language that they “may elect to remain.”

Judge Greenaway’s dissent is blistering. It begins:

The Hayes family has lived at 538B Pine Street for 35 years, and a federal statute provides that they “may elect to remain” in their home. 42 U.S.C. § 1437f(t)(B). They elected to remain in their home. They were model tenants, according to their landlord. And yet, they now will find themselves evicted. The majority has struck their Congressionally provided right from the statute, leaving nothing in its place.

According to the majority, a family “may elect to remain” in their home, but their landlord need not heed that election: he can still evict them without cause. It concludes that tenants’ rights are empty words unless a statute is also expressly phrased in terms of a property owner’s obligation. This renders tenants’ statutory entitlement to choose to remain the most evanescent of rights: good only until the moment it is required. This is not what Congress intended and it is not what Congress enacted.

Indeed, the majority’s interpretation is at odds not only with the statutory text, but with the interpretations of the other two branches of government as well. HUD—the expert agency tasked with administering this statute—has found a right to remain. Every court to interpret this statute, until this litigation, has found a right to remain. There is complete consensus on what this statute means: landlords may not evict enhanced voucher-holders without cause. The majority all but ignores these cases and administrative interpretations, even as it instead battles the strawman of perpetual tenancies that can never be ended—an interpretation that no one advances: not the Hayes family, not HUD, and not other courts. As a result, this Court is left standing alone. I must dissent.

Joining Fisher was Hardiman; Greenaway dissented. Arguing counsel were Rachel Garland of Community Legal Services for the tenants and Susanna Randazzo of Kolber & Randazzo for the landlords.

 

Cottrell v. Alcon Labs — class action — reversal — Restrepo

A divided Third Circuit panel today revived a consumer class-action suit alleging that prescription eyedrop sellers knowingly designed their dispensers in a way that forced consumers to waste it. Basically, if the drops out of the dropper are too big, the excess just runs down your cheek, and here the drops were allegedly two to three times too big. The district court dismissed on injury-in-fact standing grounds, but today’s panel majority reversed, separately analyzing each component of the injury-in-fact standard. The court split with the Seventh Circuit, so this case clearly isn’t over.

Joining Restrepo was Chagares; Roth dissented, arguing that the majority erodes standing by allowing the plaintiffs to proceed with a speculative injury. Arguing counsel were Leah Nicholls of Public Justice for the consumers and Robyn Bladow of Kirkland and Ellis for the sellers.

 

In re: Bressman — bankruptcy — affirmance — Roth

The Third Circuit today upheld a district court ruling vacating a prior default judgment due to counsel’s fraud on the court. The court once again came down hard on the lawyer (Max Folkenflik of New York), naming him in the opening sentence of the opinion and throughout.

Joining Roth were Ambro and Jordan. Arguing counsel were Folkenflik for the appellants and Michael Sirota of Cole Shotz for the appellee.

 

 

 

En banc argument day!

Today is the Third Circuit’s fall en banc oral argument sitting. The arguments start momentarily.

Two cases up:

  • US v. Douglas, (panel opinion here) a criminal-sentencing appeal on a interpreting the Sentencing Guidelines “position of trust,” enhancement, and
  • Joyce v. Maersk Line, a labor-law case on whether unearned wages can be modified by a collective bargaining agreement.

UPDATE: audio of the Douglas argument is here, Joyce is here.

New opinion — Third Circuit rules for former governor in malicious-prosecution appeal

Zimmerman v. Corbett — civil — reversal — McKee

A staffer for a PA state legislator was prosecuted for obstructing an investigation into whether Democratic staffers were doing campaign work on state time. After the charges against him were dismissed, he brought a malicious prosecution suit against various defendants, including Tom Corbett (the Republican state AG at the time of the prosecution, and later the governor). The district court denied the defendant’s motion to dismiss, but today the Third Circuit reversed, holding that there was probable cause to prosecute.

Joining McKee were Cowen and Fuentes. Arguing counsel were Joshua Autry of Lavery Faherty for the appellants and Devon Jacob of Mechanicsburg for the appellee.

New opinion — FLSA requires employers to pay workers during short breaks

Secretary, U.S. Dept. of Labor v. American Future Systems — labor — affirmance — McKee

The Third Circuit today held that the Fair Labor Standards Act requires employers to compensate employees for all rest breaks of 20 minutes or less, even if the employer calls the breaks flexible time and allows employees to do as they please. The court also affirmed the district court’s liquidated-damages award based on the employer’s bad faith.

Joining McKee were Rendell and Fuentes. Arguing counsel were former Adams clerk Alfred Putnam Jr. of Drinker Biddle for the employer and Rachel Goldberg for the government.

Civil practice pointer: don’t do this

The Third Circuit issued an unusual non-precedential opinion today. The court affirmed a district court order that dismissed a suit brought by two police officers for failing to comply with Rule 56 of the Federal Rules of Civil Procedure by failing to cite the parts of the record establishing factual disputes.

Said the opinion:

We recognize that our Order affirming this dismissal based solely on Plaintiff’s attorney’s failure to comply with a rudimentary procedural rule extinguishes any meritorious claims Plaintiffs may have had. Plaintiffs’ loss therefore results solely from their attorney’s ineffective representation rather than any defect that may (or may not) have existed in Plaintiffs’ claims.

Nevertheless, our review is limited to the propriety of the District Court’s order dismissing the complaint and granting judgment to Defendants as a matter of law. Since we conclude that the dismissal was appropriate, Plaintiffs’ only possible recovery must come from their attorney’s malpractice insurer, not from any of the Defendants. In order to ensure that Plaintiffs are aware of this potential recourse, we will instruct Plaintiffs’ attorney to share this opinion with his clients and to ask them to send a letter to the Clerk of this Court confirming that they have read this opinion, and that they fully understand their potential recourse.

Probably not the appellate outcome that counsel was hoping for. (His oral argument didn’t go so hot, either. I think the court did the right thing in giving counsel the chance to explain himself, though.)

This is just the latest example of the Third Circuit coming down hard on attorney errors; I discussed other recent instances here.

New opinion — Third Circuit affirms forum non conveniens dismissal

Trotter v. 7R Holdings — maritime — affirmance — Greenaway

The Third Circuit today affirmed a district court’s dismissal of a maritime suit on forum non conveniens grounds. The court sua sponte considered and rejected the argument that a statutory venue provision impacted the forum analysis, “because they are antecedent legal issues that we must resolve before deciding the case as a whole.”

Joining Greenaway were Shwartz and Fuentes. Arguing counsel were Thomas Friedberg of San Diego and Michael Dono of Miami.

New opinion — IDEA plaintiffs who got a hearing can get attorneys’ fees

H.E. v. Walter D. Palmer Leadership Learning Partners Charter School — disability — reversal — Krause

Parents of children with disabilities filed an administrative complaint against a charter school for allegedly failing to meet its obligations under the Individuals with Disabilities Education Act. The administrative hearing officer dismissed their complaint, so the parents sued in federal court, asking the court to vacate the hearing officer’s dismissal and remand for a hearing. The district court did as the plaintiffs asked, but it refused to award them attorneys’ fees as the prevailing party. Today, the Third Circuit reversed, holding that the fee denial was an appealable final order and that the plaintiffs’ purely procedural victory sufficed to entitle them attorneys’ fees under the IDEA.

Joining Krause were Ambro and Scirica. The case was decided without oral argument.

New opinion — Third Circuit reverses movie theater’s ADA win [updated]

McGann v. Cinemark USA — disability — reversal — Restrepo

A blind and deaf man asked a movie theater to provide him with a tactile interpreter so that he could experience a movie there. If you think that sounds silly or contrived, here’s some context:

McGann has experienced movies in theaters for many
years. He enjoys attending movies in person for a number of
reasons; among others, it affords him the opportunity to
participate in discussions about the movies with his friends and
family. Before his wife passed away in 2001, she would
provide him with tactile interpretation during movies in the
theater. Since then, McGann has attended movies at a local
Carmike Cinema. Carmike provided him with tactile
interpretation services for movie presentations at his request.

In November 2014, McGann became interested in
experiencing the movie Gone Girl (Twentieth Century Fox
Film Corp. 2014), after hearing about it from his family and
reading about it online using Braille. After he contacted his
customary Carmike Cinema to inquire about attending a
presentation of the movie, he learned it was no longer playing
there. So he sought another theater in which to experience it.

When the theater refused to provide him with a tactile interpreter, he sued it under the Americans with Disabilities Act. After a bench trial, the district court ruled in the theater’s favor based on its view that movie-theater tactile interpreters were not covered by the ADA. Today, the Third Circuit reversed. Significantly, the court did not reach the theater’s defense that having to provide tactile interpreters would cause it an undue burden, instead remanding that issue for the district court to consider first.

Time to fire up the “Federal judges are activists! Plaintiffs are snowflakes!” internet hate machine? I hope not.

UPDATE: Right on cue, National Review posts, “A Contender for the Silliest Decision of the Year Award.” The author, who says he views the ADA as unconstitutional, laments that “activist judges will keep pushing it further and further.”

Joining Restrepo were Smith and McKee. Arguing counsel were Carol Horowitz of the Disability Rights Network of Pennsylvania for the patron, M. Brett Burns of Hunton & Williams for the theater, and Bonnie Robin-Vargeer for the DOJ as amicus.

New opinion — Third Circuit allows asbestos liability in “bare-metal” maritime suits

In re: Asbestos Prods. Liability Litig. — maritime — partial reversal — Vanaskie

The Third Circuit today held that, under maritime law, a manufacturer of a “bare-metal” product (one sold prior to installation of an asbestos part) may be held liable for asbestos-related injuries under the familiar tort reasonable-foreseeability test.

The court also held that the appellant waived a different theory of liability by raising it in their opening brief only in a footnote asserting that they did not waive it.

Joining Vanaskie were Shwartz and Restrepo. Arguing counsel were Richard Myers of Paul Reich for the appellants and Emily Kennedy of Jones Day for the appellees.

New opinion — Third Circuit upholds rejection of price-fixing suit

Valspar Corp. v. DuPont — antitrust — affirmance — Hardiman

A split Third Circuit panel today affirmed a grant of summary judgment in an antitrust price-fixing case. The majority opinion’s introduction:

This appeal involves an alleged conspiracy to fix prices in the titanium dioxide industry in violation of Section 1 of the Sherman Act. Appellant Valspar, a purchaser of titanium dioxide, claimed Appellee DuPont conspired with other titanium dioxide suppliers to fix prices. Valspar argued that the price-fixing agreement was made manifest primarily by thirtyone parallel price increase announcements issued by the suppliers. DuPont countered that the parallel pricing was not the product of an agreement, but rather the natural consequence of the marketplace. Specifically, DuPont posited that because the market for titanium dioxide is an oligopoly, the price movement was caused by “conscious parallelism”—an economic theory that explains oligopolists will naturally follow a competitor’s price increase in the hopes that each firm’s profits will increase. The District Court agreed with DuPont and granted its motion for summary judgment. We will affirm.

The dissenting judge, interestingly, was a district judge sitting by designation. And he dissented with vigor! He accuses the majority of adopting a “new approach that appears to shut the door on a district court’s ability to accept reasonable inferences in any case involving oligopolists” and that “misses by a mile an essential truth of actual courtroom litigation: that circumstantial evidence is competent, valid, and vital evidence in almost every conspiracy trial, civil or criminal.” Thirty-two pages long.

Joining Hardiman was Krause; dissenting was Stengel EDPA by designation. Arguing counsel were James Lockhart of Minnesota for the appellants, Shari Lahlou of Crowell & Moring for the appellee.

“Columbia nuns vow to appeal after their religious-freedom lawsuit to stop gas pipeline is dismissed”

The title of this post is the headline of this story by Ad Crable today at Lancaster Online. The story, which says the nuns have “attracted worldwide media attention,” begins:

A federal judge in Reading has dismissed a freedom-of-religion lawsuit brought by a Roman Catholic order of nuns near Columbia to try to stop a gas pipeline.

The judge said the court lacked jurisdiction.

The Adorers of the Blood of Christ immediately announced they would appeal the case to the Third Circuit Court of Appeals in Philadelphia.

The Adorers had brought the lawsuit against the Federal Energy Regulatory Commission and the Transcontinental Gas Pipe Line Company in a last-ditch effort to stop the Atlantic Sunrise gas pipeline from running through farmland they own in West Hempfield Township.

They sued under the Religious Freedom Restoration Act.

The nuns maintained that their deeply held belief is that the Earth is God’s creation and that land is a “gift of beauty and sustenance” that should not be used in an “excessive and harmful way.”

Sounds like a Hail Mary appeal to me.

New opinion — Third Circuit holds that bankruptcy trustees enjoy qualified immunity

In re J & S Properties — bankruptcy — affirmance — Hardiman

After a bankruptcy trustee seized a rental property owned by the debtor, the tenant sued to regain possession of the property. The district court held that the trustee had qualified immunity from the suit, and today the Third Circuit affirmed:

The question presented is whether qualified immunity applies to discretionary actions taken by a trustee to preserve the bankruptcy estate’s assets, and whether that immunity protects Trustee Swope’s conduct in this case. We will affirm because Swope exercised reasonable care under the circumstances and did not violate clearly established law.

A sharp reader points out to me that the opinion says it reviews factual findings for clear error. In Semcrude — also a bankruptcy case involving an appeal from a grant of summary judgment — the court applied plenary review and cited a prior case rejecting any application of the clear-error standard to a bankruptcy court’s summary-judgment ruling. Other circuits recently have done the same. On a first read, I’m not sure the opinion actually applied clear-error review to any factual finding, but still this strikes me as a point likely to sow confusion that the court may want to clarify.

Joining Hardiman was Roth; Fisher concurred in the judgment, arguing that the qualified immunity defense was not preserved because it was not raised in bankruptcy court but that affirmance is still warranted based on quasi-judicial immunity. Arguing counsel were Mary Sheats of Frank Gale for the appellant and Andrew Sperl of Duane Morris for the appellee.

Supreme Court agrees to review Third Circuit appealability case

This morning the Supreme Court also granted certiorari to review a Third Circuit case, Hall v. Hall. Scotusblog describes the issue as “Whether the clarity Gelboim v. Bank of America gave to multidistrict cases should be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case.” The Scotusblog case page with links to the cert papers is here, the Supreme Court docket is here.

The Third Circuit opinion is here. It was authored by Judge Jordan and joined by Judges Chagares and Hardiman. The opinion was non-precedential and the question upon which the Supreme Court just granted certiorari was dispensed with in a two-sentence footnote.

Counsel for the successful petitioner is Andrew Simpson of St. Croix, USVI. Simpson is the president-elect of the Third Circuit Bar Association, and just this week he was featured on this blog describing the hurricane devastation there. So I imagine persuading the Supreme Court to hear his case is singularly well-timed good news.

Congratulations Andy!

(Thanks to David Fine for flagging this for me.)

New opinion — Third Circuit makes it easier for some innocent prisoners to get back into court

Satterfield v. District Attorney — habeas corpus — reversal — Vanaskie

The Third Circuit issued an important habeas corpus opinion today that makes it a bit less difficult for prisoners who assert their innocence to get back in court and have their claims heard on the merits.

In 2013, the Supreme Court held that, when habeas petitioners make a strong enough showing of actual innocence, courts will reach the merits of their petitions that otherwise would be dismissed because they were filed too late. The question in today’s case was, what about petitioners who lost before 2013? If they lost on statute-of-limitations grounds then, and they have enough evidence of their innocence, do they get to reopen their case? Or, in habeas-speak, can McQuiggan support a Rule 60(b) motion?

Today, the court ruled in favor of the petitioner, holding that the district court erred when it ruled that 60(b) wasn’t available for petitioners invoking McQuiggan to get relief from a prior ruling that their petition was time-barred. The opinion emphasized that ” The principles underlying the Supreme Court’s decision in McQuiggin are fundamental to our system of government” and important to the 60(b) analysis. Conversely, the opinion observed that finality and comity ” must yield to the fundamental right not to be wrongfully convicted” and thus get ” less weight … when a petitioner asserts a threshold claim of actual innocence.”

Joining Vanaskie were Ambro and Restrepo. Arguing counsel were Aren Adjoian of the EDPA federal defender for the petitioner and Simran Dhillon of the Philadelphia DA for the Commonwealth.

New opinions, including a hot-button voting case with some harsh words for the appellant

American Civil Rights Union v. Philadelphia City Commissioners — civil / voting — affirmance — McKee

Back in May I posted here about a Third Circuit oral argument that got off to a bad start when the lawyer raised his voice in an unsuccessful attempt to talk over one of the judges. (You’d expect a former law school dean and Scotus clerk to know better.)

Interrupting a judge, it turns out, was not the path to victory. Today, the Third Circuit affirmed a district court’s rejection of a conservative group’s challenge to Philadelphia’s alleged failure to remove persons convicted of a felony from its voter rolls.

And it turns out interrupting a judge was the least of counsel’s advocacy missteps. The opinion tartly observed that one of the appellant’s arguments “not only mangles the statute beyond recognition, it also misrepresents the non-precedential case it relies on.” Later: “This is exactly the kind of statutory contortion that led the District Court to … threaten[] to impose sanctions for blatant misrepresentation of the statute.” Pow.

Joining McKee were Vanaskie and Rendell. Arguing counsel were John Eastman of the Center for Constitutional Jurisprudence for the appellant and Kelly Diffily for the city.

 

Alimbaev v. AG — immigration — reversal — Krause

Here’s a fascinating introduction:

This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ’s factfinding in this case—an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ’s finding that Petitioner’s testimony was credible, we will grant the petition for review of the BIA’s removal order, vacate the denial of Petitioner’s applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.

The opinion features a significant discussion of clear-error review by the Board of Immigration Appeals and how it applies to immigration judges’ credibility findings. The opinion emphasized the Third Circuit’s obligation to “carefully” scrutinize the BIA’s application of clear-error review in accepting or rejecting IJ factfinding.

Joining Krause were Jordan and Stearns D.Mass by designation. Arguing counsel were Lawrence Rudnick of Rudnick Immigration Group for the petitioner and Daniel Smulow for the government.

 

Christopher Columbus LLC v. Bocchino — admiralty — reversal — Stengel EDPA

Precedential opinions by judges sitting by designation in the Third Circuit are pretty unusual. It’s also fairly uncommon for district judges to sit by designation over CA3 appeals from their own district — reviewing a colleague’s work, that is. But both occurred here.

Also unusual? An appeal that “arise[s] out of a drunken brawl which erupted among passengers who were enjoying a cruise.” The issue on appeal was whether the dispute fell under maritime jurisdiction, and the court held that it did and vacated the district court’s dismissal.

Joining Stengel EDPA by designation were Hardiman and Krause. Arguing counsel were Daniel Wooster of Palmer Biezup for the appellant and Stanley Gruber of Freedman & Lorry for the appellee.

Two notable unpublished opinions

I don’t normally blog about the Third Circuit’s non-precedential opinions, but the court issued two noteworthy ones today.

First, in Smith v. Lindemann the court enforced an arbitration clause in a lawyer’s representation agreement to compel arbitration of a legal malpractice suit. Even if state law barred lawyers from including arbitration clauses in their retainer agreements, such a law would be preempted by federal law. Ugh.

Second, in Pirela v. Commonwealth a divided panel affirmed in a pre-AEDPA habeas corpus case involving jury waiver and ineffective assistance of counsel. Judge Restrepo dissented (I’m not certain, but I think this might be his first panel dissent since joining the court), arguing that the court should have instead remanded for an evidentiary hearing on the waiver claim.

UPDATE — Writes Peter Goldberger:

Judge Restrepo’s separate opinion “concurring in the judgment” concerning cell site location information, in US v Stimler, 864 F.3d 253, is functionally a dissent. Conc in jmt because of binding circuit precedent; issue is pending on the merits before the Supreme Court, so the separate opinion also functions as a SCOTUS amicus brief.

New opinion — student-athletes showing concussion signs have a right to be protected

Mann v. Palmerton Area School Dist. — civil rights — affirmance — Vanaskie

Sheldon Mann, a 17-year-old student who played high school football, suffered a hard hit during a team practice. One of his teammates said it was one of the bigger hits he’d ever seen, another said Sheldon seemed dizzy and was stumbling around the field. But the coach at the time (he’s still the coach) “claim[ed] he did not see the hit,” asked Sheldon if he was all right and then told him to continue practicing. Not long after, Sheldon sustained a second big hit. This time he was removed, but it was too late: he suffered a traumatic brain injury.

Sheldon’s parents sued, alleging that the coach violated Sheldon’s constitutional right to bodily integrity by telling him to stay in after the first hit and that the school district failed to train the coach and protect the player. The district court granted summary judgment in favor of the defendants, and today the Third Circuit affirmed.

The Third Circuit held that a student-athlete at a state school who is showing signs of a concussion has a constitutional right to be protected from further violent hits. This is a major ruling that I expect to have national significance. But the court went to hold that this right was not clearly established at the time of Sheldon’s injury in 2011. The court also denied the Monell failure-to-train claim because there was no evidence of a pattern of recurring head injuries in that school’s football program, nor that the coaching staff acted deliberately.

Joining Vanaskie were McKee and Rendell. Arguing counsel were Howard Bashman for the parents and Thomas Specht of Marshall Dennehey for the coach and the district.

UPDATE: coverage by Matt Miller on Pennlive here.

 

New opinion — Third Circuit narrows overtime-pay protection

Souryavong v. Lackawanna County — civil — affirmance — Vanaskie

The introduction:

This employee-overtime appeal raises questions as to the nature of the evidence that is sufficient to create a jury question on the purported “willfulness” of an employer’s nonpayment of overtime. The question matters because a finding of willfulness expands the limitations period for claims under the Fair Labor Standards Act (“FLSA”), in effect permitting a plaintiff to receive a larger award. Here only the willfulness question was contested—Appellee Lackawanna County conceded the basic overtime violations—and at trial Appellants Michael Souryavong and Nelson Rolon presented some evidence on the question but not enough to avoid a directed verdict in the County’s favor. We find no error in the District Court’s decision because the evidence presented did not suggest the County was subjectively aware of the FLSA problem at the time of the violations, at least with respect to Souryavong and Rolon. Additionally, Souryavong and Rolon challenge the District Court’s calculation of attorney’s fees, but we find that decision appropriate as well. We will affirm.

On the willfulness issue, the opinion also affirmed for two alternative reasons. First, it said that “an FLSA violation [a willful one, I believe the opinion means] must have a degree of egregiousness” lacking in this case. Second, it said that a “willful violation” requires evidence that the employer knew it was violating the FLSA specifically — awareness of “wage and hour issues” caused by its widespread non-payment of overtime for work over 40 hours and acknowledgement that the employees could file a grievance for back overtime wasn’t enough.

Both alternative rationales, but especially the second, strike me as significant new retreats from the statute’s language.

Joining Vanaskie were Ambro and Restrepo. Arguing counsel were Cynthia Pollick of the Employment Law Firm for the employees and Harry Coleman for the county.

Pittsburgh newspaper urges Third Circuit to rehear McMunn radiation case

The Pittsburgh Tribune-Review has this staff editorial urging the Third Circuit to hear its ruling last month in McMunn v. Babcock & Wilcox Power. It says:

We hope the Third Circuit Court of Appeals will reconsider its decision to dismiss claims that a former nuclear plant in Apollo contributed to cancers among residents there. Of particular concern is that the ruling, as it stands, would virtually eliminate any chance for similar future claims against any other such plant because the victims of cancer didn’t “prove” their illnesses could be traced to emissions from the plant. “Proof” should be a matter for a trial and a jury, not a pre-trial review.

On Sunday the same paper ran this compelling story on the case by Mary Ann Thomas, headlined, “Apollo area residents involved in failed NUMEC nuke suit hope federal judges reconsider.” The story quotes Duquesne law professor Steven Baicker-McKee rightly observing that rehearing petitions are “always a heavy lift.”

I believe the odds of rehearing being granted here are quite remote (even more than usual), but the editorial and story do underscore Judge McKee’s concurring observation “stress[ing] that the law in this area is simply inadequate.”

New opinion — Third Circuit upholds rejection of radiation victim’s suit

Estate of Ware v. Hospital of the Univ. of Penn. — civil — affirmance — Ambro

Judge Ambro is a national treasure, and here is the conclusion to his opinion today:

The facts of Boyer’s action are tragic: her husband, a 47-year-old researcher whose life’s work was studying the effects of radiation on biological organisms, died from a rare form of brain cancer. But as often happens in the law, this case provides us little opportunity to contemplate Ware’s suffering from his illness or his family’s suffering from his loss. Instead, our review is confined to bloodless questions of statutory interpretation and appropriate management of litigation. On these issues we find no fault with the District Court’s holdings. The Price-Anderson Act governed Boyer’s negligence claims, and the Court did not abuse its discretion in denying her request to withdraw those claims and to remand her others. We thus affirm its judgment.

Joining Ambro were Restrepo and Cowen. Arguing counsel were Aaron Freiwald of Layser & Freiwald (nice website!) for the plaintiff and Donald Jose of Jose & Associates and Theresa Sachs of Marshall Dennehey for the university.

A new ERISA opinion

Dowling v. Pension Plan for Salaried Employees of Union Pacific — ERISA — affirmance — Vanaskie

“Retirement plans,” today’s opinion begins, “can be complex documents … with numerous peculiarities,” and who would disagree? The litigation arising from disputes over those plans can be complex and peculiar too. Today, a divided Third Circuit panel affirmed a district court ruling in favor of the employer, emphasizing the deference courts owe to plan administrators.

Joining Vanaskie was Hardiman; Ambro cogently dissented, describing the majority’s reasoning as “imaginative,” “innovative,” and “dubious.” Arguing counsel were Kelly Watkins of Norris McLaughlin for the employee and David Fryman of Ballard Spahr for the employer.

New opinion — criminal sentences can’t include job restrictions that last longer than supervised-release maximum

US v. Poulson — criminal — partial reversal — Rendell

The Third Circuit today reversed under plain error a criminal sentence that barred the defendant from working in real estate for longer than he was subject to supervised release:

he District Court was *** only authorized to impose a maximum term of three years’ supervised release on Poulson. Because the District Court imposed, as a term of supervised release, an occupational restriction lasting five years, this part of Poulson’s sentence amounted to plain error.

The court rejected the defendant’s challenge to the sentencing court’s Guidelines finding on the number of the defendant’s fraud victims who suffered a substantial financial hardship.

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

New opinion — Third Circuit rejects broad reading of employee’s waiver

Zuber v. Boscov’s — civil / contract — reversal — Greenaway

The Third Circuit today held that, under Pennsylvania contract law, an employee’s waiver of workers’ compensation claims did not also waive his claims under the Family Medical Leave Act and state law, reversing a district court ruling to the contrary.

Joining Greenaway were Shwartz and Greenberg. Arguing counsel were Manili Arora of Swartz Swidler for the employee, Alexander Ross Jr. of Rakoski & Ross for the employer, and Lawrence Chaban of the PA Association for Justice as amicus.

New opinion — another reversal of a habeas grant

Wilkerson v. Superintendent — habeas — reversal — Krause

Just last week I wrote,

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

Today it happened again. The Third Circuit reversed a district court order granting habeas relief on a double-jeopardy claim. The court also affirmed denial of an Apprendi claim, holding that the claim was time-barred. The opinion did hold that the double-jeopardy claim was exhausted even the petitioner raised only the analogous state-law claim in state court.

Joining Krause were Hardiman and Stengel EDPA by designation (an unusual situation where a district judge reviews the decision of a district colleague). Arguing counsel were Maria Pulzetti of the federal defender for the petitioner and Max Kaufman of the Philadelphia DA’s office for the state.

New opinion — Third Circuit authorizes successor habeas petition raising ACCA challenge

In re: Hoffner, Jr. — habeas — Restrepo

The Third Circuit today authorized a prisoner to file a successor petition under 28 USC § 2255 (the equivalent of habeas corpus for federal prisoners) raising a claim that the Armed Career Criminal Act is unconstitutionally vague (i.e. a Johnson claim). The court emphasized that it takes a flexible, case-by-case approach to deciding when successor petitions are authorized, rejecting the more rigid approach taken by the Eighth Circuit.

I’ll go way out on a limb and predict that the government seeks rehearing.

Joining Restrepo were McKee and Ambro. Arguing counsel were Lisa Freeland for the petitioner and Robert Zauzmer for the government.

4 new opinions, including two immigration reversals

Uddin v. AG — immigration — reversal — Rendell

The Third Circuit today granted an immigration petition to review, holding that the BIA erred when it found a Bangladesh citizen ineligible for withholding of removal. The BIA had deemed him ineligible because he was a member of a major political party, some of whose members had committed terrorist acts.

The Third Circuit held that membership in a party whose members had committed terrorism wasn’t enough — the BIA had to find that the terrorist acts were authorized by party leaders. Analogizing to American politics, the court observed, “If a single member of the Democratic or Republican Party committed a terrorist act, we would not impute terrorist status to the entire group, absent some showing that party leadership authorized the act.”

The court joined the reasoning of a 2008 Seventh Circuit opinion authored by just-retired Judge Posner. Not surprisingly, today’s opinion quotes Posner at length and identifies him by name.

Joining Rendell were Greenaway and Shwartz; Greenaway also concurred separately. Arguing counsel were Visuvanathan Rudrakumaran of NY for the petitioner and Daniel Smulow for the government.

UPDATE: The Court issued an amended opinion on September 25. The opinion link has been updated; the change is identified in this order.

 

Mateo v. AG — immigration — reversal — Vanaskie

The Third Circuit held that a non-citizen’s Pennsylvania conviction for robbery of a motor vehicle did not support his removal. The removal order was premised on the vehicle-robbery conviction being a crime of violence, but the Third Circuit held that the crime-of-violence standard was unconstitutionally vague. The court joined three other circuits on this point, splitting with the Fifth Circuit. The court further held that the vagueness standard is no lower in immigration cases than it is in criminal cases.

Joining Vanaskie were McKee and Jordan. Arguing counsel were Tracey Hubbard of Scranton for the petitioner and Matthew Connelly for the government.

 

US v. Hodge — criminal — reversal in part — Chagares

After a Virgin Islands man used a gun to rob an armored vehicle, the government charged him with a separate Virgin Islands gun count for each of three crimes he committed during the offense. Today, the Third Circuit vacated two of those non-federal convictions on double jeopardy grounds (but it rejected the analogous argument as to two federal gun counts). The court granted relief even though the defendant received a single sentence for all three counts, similar to the federal practice of imposing concurrent sentences. The court rejected the defendant’s many other challenges.

Joining Chagares were Jordan and Hardiman. Arguing counsel were Richard Della Fera of Florida for the defendant and David White for the government.

 

Moody v. Atlantic City Bd. of Education — employment discrimination — reversal — Shwartz

An employee sued her employer, alleging that a fellow employee had sexually harassed her and the employer retaliated against her when she complained.

On the harassment claim, the employer’s liability turned on whether the alleged harasser was her supervisor even though he didn’t hire and couldn’t fire her. The plaintiff was a substitute janitor who worked at different sites; the alleged harasser had the power to decide if she got work at one of those sites, and in a recent several-month period 70% of her work had been at that site. The district court granted summary judgment to the employer based its conclusion that the alleged harasser was not her supervisor.

Today, a divided Third Circuit panel reversed, holding that the plaintiff’s allegations were sufficient to survive summary judgment on whether the alleged harasser was her supevisor. Judge Rendell dissented on this point, arguing that in light of a recent Supreme Court case the majority was “simply incorrect.”

On the retaliation claim, the panel was unanimous that reversal was required, holding that her allegation that her hours were reduced right after she complained was sufficient.

Joining Shwartz was Greenaway; Rendell dissented in part. Arguing counsel were Samuel Dion of Dion & Goldberger for the plaintiff and Rachel Conte of Riley and Rile for the employer.

New opinion — Third Circuit rejects company’s effort to force arbitration of rewards-card dispute

White v. Sunoco — civil / arbitration — affirmance — Chagares

Sunoco, like many corporations, offers incentives to consumers who sign up for a rewards-program credit card. Sunoco doesn’t issue the credit card; a bank (here, Citibank) issues the card. Citibank sets terms and conditions, including that, in a dispute between the cardholder and the bank, the bank can force binding arbitration.

Here, a cardholder alleged that rewards-program benefits were fraudulent, and he sued Sunoco, not Citibank. Sunoco moved to compel arbitration based on the terms set by Citibank. The district court denied arbitration.

Today, in what strikes me as a major consumer-arbitration-law ruling, a divided Third Circuit panel affirmed, applying state law to conclude that Sunoco could not force arbitration under the credit-card terms issued by Citibank. The court rejected Sunoco’s arguments based on equitable estoppel and based on the arbitration clause’s inclusion of claims “made … against anyone connected with us.”

Joining Chagares was Restrepo. Roth dissented in an opinion that uses the phrase “basic contract law” twice and the adverb “clearly” five times. Arguing counsel were Seamus Duffy of Drinker Biddle for Sunoco and David Stanoch of Golomb & Honik for the consumer.

A non-precedential grant of capital habeas relief based on Brady violation

A Third Circuit panel today affirmed a grant of habeas corpus relief in Bridges v. Secretary, No. 13-9000 and 13-9001. Bridges was convicted of first degree murder and sentenced to death for a 1996 killing in Reading, PA. The opinion is non-precedential.

Relief was based on the prosecution’s suppression of exculpatory police reports impeaching a key prosecution witness. The state had argued that the suppressed reports weren’t material because they were inadmissible and didn’t prove what the petitioner argued. The panel also ruled that the Brady claim was not adjudicated on the merits when the state court mistakenly stated that the claim had previously been denied.

The opinion author was Shwartz, joined by McKee and Fuentes. The petitioner was represented by the MDPA FPD.

New opinion — Third Circuit remands for labor arbitration

Employer Trustees of Western PA Teamsters v. Union Trustees of Western PA Teamsters — labor — reversal — Vanaskie

When labor negotiations deadlocked over employee benefits, one side sought appointment of an arbitrator to break the stalemate. The district court denied the request, but today the Third Circuit reversed, holding that the disputes fell within the parties’ agreement to arbitrate.

Joining Vanaskie were Ambro and Scirica. Arguing counsel were Robert Prorok of Cohen & Grigsby for  the appellants and  Joseph Pass of Jubelirer Pass for the appellees.

4 more new opinions

This post covers the precedential opinions issued yesterday, August 30.

Borrell v. Bloomsburg Univ. — civil rights — reversal — Hardiman

A nurse-anesthetist student was dismissed from her program for refusing to take a drug test required by the private hospital where she was doing a clinical program. The person who decided to dismiss her from the university program was the director of the program, a joint employee of the hospital and the university. The student sued under 1983, and the district court granted her summary judgment, concluding that the hospital and the program director were state actors. After a damages trial, the jury awarded her $415,000 in damages and $1.1 million in punitives which the judge reduced to $250,000 and $750,000.

The Third Circuit reversed, holding that the hospital and the program director weren’t state actors with respect to the decision to dismiss her from the program. The court also held that a university professor who had a role in the dismissal was entitled to qualified immunity.

Joining Hardiman were Fisher in full and Roth in part; Roth concurred in the judgment in part. Arguing counsel were Barry Dyller of the Dyller Law Firm for the student, Jaime Tuite of Buchanan Ingersoll for the hospital and program director, and John Knorr III of the state AG’s office for the professor.

 

US v. Penn — criminal — affirmance — Smith

The Third Circuit held that a district court did not abuse its discretion when, after opening statements, it removed and replaced a juror with a scheduled surgery.

Joining Smith were Fuentes and Starks D.Del. by designation. The case was decided without oral argument.

 

Williams v. Pa. Human Relation’s Comm. — employment discrimination — affirmance — Fuentes

The introduction, minus citations:

Cheryl Williams, an African-American woman,
claims that she was subjected to constant harassment at the
Pennsylvania Human Relations Commission (the
“Commission”) by her supervisors, Joseph Retort and Adam
Stalczynski. As a result of this treatment, she alleges she faced a hostile work environment and was ultimately constructively
discharged from her position as a Human Relations
Representative. She then filed this action against the
Commission under Title VII of the Civil Rights Act of 1964
(“Title VII”), seeking damages for the loss of her job and the
harm sustained to her physical and emotional health. She also
included claims against her former supervisors, Retort and
Stalczynski, claiming that they violated her federal rights under
Title VII and the Americans with Disabilities Act (“ADA”)
and they are therefore liable for damages under 42 U.S.C.
§ 1983. On defendants’ motion, the District Court granted
summary judgment in favor of all defendants.

In this case, we address for the first time whether
violations of Title VII and the ADA may be brought through
§ 1983. In light of the comprehensive administrative scheme
established by Title VII and the ADA, we conclude that these
claims, standing alone, may not be asserted under § 1983. And
because we also agree with the District Court that Plaintiff
Cheryl Williams presents no triable issues of fact on her
Title VII claims against the Commission, we will affirm.

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

 

Delaware Riverkeeper Network v. Secretary, Dept. of Environmental Protection — environmental — affirmance — Smith

The Third Circuit rejected another effort by an environmental group to stop an interstate gas pipeline. This time the court also held that the state agency’s decision was final.

Joining Smith were Nygaard and Fuentes. Arguing counsel were Aaron Stemplewicz for the Riverkeepers, Joseph Cigan III for the state, and John Stoviak of Saul Ewing for the intervenor pipeline company

Five new opinions from the end-of-summer opinion surge

This post covers the precedential opinions issued August 29.

Parker v.Montgomery Co.  Corr. Facility — prisoner civil rights — denial — Smith

I detest the Prisoner Litigation Reform Act. This opinion magnifies the shabby unfairness of the PLRA, so I detest its result and I hope (with no optimism) that the Supreme Court or Congress fixes it.

While I believe all that, I also believe this: this opinion is superb, a near-perfect model of clarity and restraint. It is a crisp counter-punch to the cynics and the “politicians in robes” federal-judge-bashers. I deplore its holding as a policy matter, but, given controlling law, its ruling is probably correct and without a doubt reasonable.

Under the PLRA’s three-strikes rule, an indigent prisoner who has filed three actions or appeals that were deemed “frivolous, malicious, or fail[] to state a claim upon which relief may be granted” no longer qualifies to proceed in forma pauperis. That means that, unlike all other poor litigants, they must pre-pay the full filing fees. The current fee for one Third Circuit appeal is $505, or over 2600 hours of income for a PA inmate earning 19 cents an hour.

The issue in this case is whether an inmate may appeal IFP from a district court imposing a third strike. The court held that, given the language of the statute and a unanimous 2015 Supreme Court case interpreting it, he may not appeal IFP from his third strike, disagreeing with the Solicitor General and splitting with the Ninth Circuit.

Joining Smith were Fuentes and Stark D. Del. by designation. Arguing counsel were Ryan Becker of Fox Rothschild for the prisoner and Philip Newcomer for the county. The panel extended its gratitude to Becker and his co-counsel Peter Buckley for “donating their time and talent in accepting this pro bono appointment.”

 

Davenport v. Borough of Homestead — civil rights — partial reversal — Fisher

Late one night, a driver ran a red light and then did not pull over for police. Police followed him, as he drove into Pittsburgh, never exceeding 45 miles per hour and jeopardizing no one. The police sergeant called off the low-speed pursuit, but instead several off-duty police officers deployed a spike strip in an area filled with pedestrians. After the red-light-runner swerved out of his lane to avoid the spike strip, several officers opened fire. A pedestrian was struck in the back and the driver’s mother, a passenger in the car, was shot in the head. The mother sued the officers for using excessive force, the officers asserted qualified immunity, and the district court denied the officer’s motion.

The Third Circuit reversed, holding that no reasonable juror could find for the mother because of the heavy pedestrian presence and the driver’s swerving and, alternatively, because the unconstitutionality of the officer’s actions wasn’t clearly established. Ugh.

Joining Fisher were Hardiman and Roth. Arguing counsel were Shane Haselbarth of Marshall Dennehey for the officers and J. Kerrington Lewis Sr. of Lewis Lewis for the mother.

 

NLRB v. New Vista Nursing & Rehab. — labor — reversal — Smith

The Third Circuit rejected an employer’s challenges to the NLRB’s power to act based on various grounds including recess appointments of its board members. On the merits, the court vacated the NLRB’s order for applying the wrong test to decide whether the nurse employees were supervisors and thus unable to unionize.

Joining Smith was Fisher in full and Greenaway in part; Greenaway dissented on the merits issue. The case was decided without oral argument despite impressive counsel and an amicus.

 

Norfolk Southern Railway v. Pittsburgh & W. Va. R.R. — contract — affirmance — Vanaskie

The Third Circuit affirmed a district court’s grant of summary judgment in a dispute over interpretation of a railroad lease.

Joining Vanaskie were Ambro and Scirica. The case was decided without oral argument.

 

Bamaca-Cifuentes v. AG — immigration — affirmance — McKee

The Third Circuit rejected an immigration petition for review, holding that 8 CFR 1003.2(c)’s timebar applies to motions to reopen removal under the Convention Against Torture.

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

New opinions — wiping out a habeas grant and allowing discovery on the fairness of stash-house stings [updated]

The Third Circuit issued two precedential opinions yesterday, both reflecting the court’s fundamental centrism.

 

Mathias v. Superintendent — habeas corpus — reversal — Krause

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

The Third Circuit held that the district court erred in granting relief based on counsel’s failure to object to a faulty jury instruction involving accomplice liability. The court held that the state court’s ruling that the petitioner did not suffer prejudice was not an unreasonable application of clearly established law because two pertinent Supreme Court rulings were in tension. The court also rejected a related due process claim.

The court also held that the time-limit for cross-appealing is not jurisdictional and is waiveable under a standard set out in the opinion. It further held (as local rule 22.1(d) already provided) that petitioners need a certificate of appealability to cross-appeal, splitting with the Seventh Circuit.

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Maria Pulzetti of the EDPA federal defender for the petitioner and Jennifer Andress of the Philadelphia DA’s office for the state.

UPDATE: On November 20, the court issued an amended opinion. The link at the top of this post now goes to the new opinion. The old opinion is here, and the court’s order helpfully identifying the changes is here. The heart of the change is new footnote 4.

 

US v. Washington — criminal — partial affirmance — Fuentes

This appeal arose out of a stash house reverse sting. A what? The majority opinion explains:

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined. For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds. Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington [the defendant], contributing to a total sentence of 264 months in prison—far more than even the ringleader of the conspiracy received. For another, and as Washington claimed on multiple occasions before the District Court—and now again on appeal—people of color are allegedly swept up in the stings in disproportionate numbers.

The panel majority rejected the defendant’s argument that applying the mandatory-minimum sentence violated due process. Judge McKee dissented on this point, arguing that applying the minimums based on fictional drug amounts conjured by law enformcement was unfair, irrational, and not intended by Congress.

The panel unanimously remanded to allow the defendant to pursue discovery in support of a selective-enforcement claim, joining the Seventh Circuit to apply a lower standard than that applicable to selective prosecution claims.

Joining Fuentes was Cowen; McKee dissented in part. Arguing counsel were Mark Greenberg for the defendant and Eric Henson for the government.

4 new opinions

I’m out of the office for the next few days, so my posts will be later and briefer than usual.

McMunn v. Babcock & Wilcox Power — civil — affirmance — Smith

The Third Circuit today upheld summary judgment in favor of the defense in a major civil suit that alleged that radiation emissions caused the plaintiffs’ cancers.

Smith was joined by Restrepo. McKee concurred (apparently without joining Smith’s opinion, and also joined by Restrepo, which seems likely to cause future confusion to the extent the two opinions disagree). Arguing counsel were Louis Bograd of Motley Rice for the plaintiffs and John Phillips of Paul Hastings and Nancy Milburn of Arnold & Porter for the defendants.

 

Mendoza-Ordonez v. AG — immigration — reversal — Nygaard

The Third Circuit granted a Honduras citizen’s petition for review, holding that the man was entitled to withholding of removal based on evidence that he faced violence for his political views and reports indicating that his home country was unable to protect him.

Joining Nygaard were Ambro and Restrepo. Arguing counsel were Joseph Brophy of Brophy & Lenahan for the petitioner and Sabatino Leo for the government.

 

Williams v. Globus Medical — civil — affirmance — Scirica

The Third Circuit upheld dismissal of a shareholder suit against a company for belatedly disclosing a business decision that caused a sales decline.

Joining Scirica were Chagares and Fisher. Arguing counsel were Jacob Goldberg of the Rosen Law Firm for the shareholders and Barry Kaplan of WA for the company.

 

Delaware Riverkeeper Network v. US Army Corp of Engineers — environmental — affirmance — Smith

The Third Circuit denied a petition to review an agency ruling approving a gas pipeline.

Joining Smith were Nygaard and Fuentes. Arguing counsel were Aaron Stemplewicz for the Riverkeepers, Varu Chilakamurri for the government, and John Stoviak of Saul Ewing for the intervenor pipeline company.

Three new opinions, including an interesting actual-innocence case

Bruce v. Warden — habeas corpus — affirmance — Fisher

The Third Circuit today upheld a federal prisoner’s ability to challenge his conviction under 28 USC 2241 instead of 28 USC 2255, but on the merits held that the prisoner failed to prove his actual innocence, and thus affirmed.

On the 2241 issue, the court noted “an entrenched split among the courts of appeals regarding the extent to which a change in statutory interpretation permits a federal prisoner to resort to § 2241 for an additional round of collateral review.” (Emphasis added). The opinion notes that 10 circuits (including the Third) allow it, while the Tenth and Eleventh don’t. In a parenthetical, the opinion provocatively notes that Judge Gorsuch was the author of the 10th Circuit opinion, and it ends by noting that split causes difficulties that “will remain, at least until Congress or the Supreme Court speaks on the matter.” All that sounds a weensy bit like a nudge to grant certiorari and perhaps reverse the Third Circuit rule, but the opinion goes on to emphatically reaffirm the rightness of the circuit’s approach, and perhaps that tension explains why it took 10 months after oral argument to issue the opinion.

On the actual innocence issue, the court began by noting that this was the first time it had considered the merits of an actual innocence claim under 2241. It left open the question of what standard applies to such claims by rejecting Bruce’s claim under the more lenient standard, the Schlup/House/McQuiggan gateway standard. Applying that standard to the facts, the court rejected Bruce’s claim.

Joining Fisher were Vanaskie and Krause. Arguing counsel were Rajeev Muttreja of Jones Day for Bruce and Kevin Ritz for the government.

 

Vanderklok v. US — civil rights — reversal in part — Jordan

This appeal arose from an airport-security-screening dispute. A would-be traveler alleged that a TSA screener violated his First and Fourth Amendment rights by falsely accusing him of making bomb threats after the traveler threatened to file a complaint against the screener. The Third Circuit today held that no Bivens action for First Amendment retaliation exists against airport security screeners who retaliate against travelers for exercising their free-speech rights. As to the Fourth Amendment malicious prosecution claim, the court held that no interlocutory appeal was available because the defendant sought summary judgment on the merits rather than on qualified immunity.

Joining Jordan were Smith and Roth. Arguing counsel were John Connell of Archer for the TSA screener, Thomas Malone of the Malone Firm for the traveler, and Daniel Aguilar for the government as amicus.

 

M.R. v. Ridley School Dist. — civil — reversal — Krause

The introduction:

Under the Individuals with Disabilities Education Act, a parent of a child with a disability can bring administrative and judicial proceedings to challenge a school district’s alleged violations of the Act, and, if the parent emerges as “a prevailing party,” the parent is then eligible for an award of attorneys’ fees. 20 U.S.C. § 1415(i)(3)(B). This case presents the question whether a fee award is available to parents who, after unsuccessfully challenging a school district’s proposed educational placement for their child, later obtain a court order requiring the school district to reimburse them for the costs of the child’s “stay put” placement—the “then-current educational placement” in which the Act permitted the child to remain while administrative and judicial proceedings were pending. Id. § 1415(j). We answer this question in the affirmative and conclude, consistent with the Act’s text and with the opinions of this Court and the other Courts of Appeals, that a court-ordered award of retrospective and compensatory relief, even if awarded under the Act’s “stay put” provision, 20 U.S.C. § 1415(j), confers “prevailing party” status. We therefore will reverse the District Court’s denial of attorneys’ fees and remand for proceedings consistent with this opinion.

Joining Krause were Vanaskie and Restrepo. Arguing counsel were Alan Yatvin of Popper & Yatvin for the appellants and John Francis Reilly of Media for the district.

New opinions — significant new antitrust, declaratory-judgment opinions

In re: Lipitor Antitrust Litig. — antitrust — reversal — Smith

In a sprawling opinion whose 17-page caption is longer than many published opinions, the Third Circuit today reversed a district court’s dismissal of antitrust suits against companies holding the patents on popular drugs for treating cholesterol and depression. The court rejected the district court’s rulings that the plaintiffs’ allegations were not plausible.

Joining Smith were Ambro and Fisher. The nine (!) arguing counsel were:

 

Kelly v. Maxum Specialty Ins. Gp. — civil — reversal — Chagares

After a plaintiff sued a defendant, the plaintiff filed a federal suit seeking a declaratory judgment on the defendant’s insurer’s coverage. The Third Circuit said this situation is “familiar” and that district courts in this circuit are divided on the “important” question of whether to let the federal suits proceed. Today, the court reversed a district court’s dismissal, holding that a federal declaratory-judgment coverage suit was not substantially similar to the underlying civil suit and that its remand was an abuse of discretion.

Joining Chagares were Hardiman and Scirica. Arguing counsel were Sina Bahadoran of Florida for the insurer, John Reed Evans of Donnelly & Associates (formerly of Selective Law Group) for an insurance broker, and Gregory Kowalski of Pansini & Mezrow for the plaintiff.

 

New opinion — Third Circuit rejects strip club’s effort to force arbitration

Moon v. Breathless — civil / employment / arbitration — reversal — Greenaway

The Third Circuit today reversed a district court’s ruling granting summary judgment in favor of arbitration. The case arose when a woman who performed at the Breathless Men’s Club sued the club under the Fair Labor Standards Act and two state laws alleging employee wage-and-hour violations. The club argued, and the district court agreed, that her suit was barred by an arbitration clause in its contract with the woman, which by its terms applied to disputes “under this Agreement.” Applying New Jersey law, the Third Circuit held that courts should decide the arbitrability issue and that the clause did not cover this suit mainly because it arose under statutes, not under the contract.

Joining Greenaway were Fisher and Hardiman. Arguing counsel were Jeremy Abay of Sacks Weston for the woman and Marc Gross, formerly of Greenbaum Rowe but now at Fox Rothschild, for the club.

New opinion — ascertainability, again [updated]

City Select Auto Sales v. BMW Bank — class action — reversal — Scirica

If you were to make a list of the most significant things the Third Circuit has done in recent years — or the most controversial — you’d probably include its creation of the “ascertainability” requirement for class certification. The ascertainability requirement obligates plaintiffs seek to proceed with certain class actions to show that the class is objectively defined and that there’s a “reliable and administratively feasible” way to figure out who’s in the class. Since creating the requirement in 2012, the court has issued several major opinions refining it, while Judge Rendell has called for abandoning it.

Today the Third Circuit revisited the ascertainability issue again, vacating a district court’s ruling that relied on it to deny class certification. The court explained:

In this case, we will vacate and remand for two reasons. First, our ascertainability precedents do not categorically preclude affidavits from potential class members, in combination with the Creditsmarts database, from satisfying the ascertainability standard. Second, because the Creditsmarts database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists based, in whole or in part, on that database.

Joining Scirica were Krause and Fuentes. Fuentes also concurred to join Rendell’s earlier call to reject the ascertainability requirement, noting that three circuits have rejected it and arguing that it creates an unnecessary burden for low-value consumer class actions.

Arguing counsel were Philip Bock of Chicago for the putative-class plaintiff, Julia Strickland of Los Angeles for 2 defendants, and William Hayes III of Denver for a third defendant.

UPDATE: Alison Frankel of Reuters has this outstanding analysis of today’s case and what it means for the larger battle over ascertainability.

Three new opinions

US v. Martin — criminal sentencing — affirmance — Hardiman

Can both of these things be true at once?

  • A criminal sentence is “based on a sentencing range that has been subsequently lowered by the Sentencing Commission,” but
  • the Guidelines chance does NOT have “the effect of lowering the defendant’s applicable guideline range.

That is, can a sentence be “based on” a guidelines range without that range being the “applicable” guidelines range?

Today the Third Circuit answered that question ‘yes,’ and on that basis it held that the defendant was not entitled to retroactive application of a Guidelines amendment. The defendant’s guilty plea and the sentence he received were based on the drug quantity involved (impacted by the Guidelines amendment), but the sentencing court had found that his advisory guidelines range should be based on his career offender status (not impacted by the Guidelines amendment).

Joining Hardiman were Roth and Fisher. The case was decided without oral argument.

 

McNelis v. PP&L — employment — affirmance — Hardiman

The Third Circuit ruled that employment-related regulations promulgated by the Nuclear Regulatory Commission trumped the Americans with Disability Act.

Joining Hardiman, again, were Roth and Fisher, and again the case was decided without argument.

 

In re: Howmedica Osteonics — civil / mandamus — reversal — Krause

Successful mandamus petitions are rare. Successful mandamus petitions turning on previously not-very-settled questions of law are rarer still. But the Third Circuit granted such a petition today.

The district court ruling at issue involved forum-selection agreements. The Supreme Court has said such agreements usually must be enforced, but the question in this case was what to do when some of the defendants had signed non-compete clauses with forum-selection clauses, but some hadn’t. The district court decided not to enforce the forum-selection clauses against any of the defendants. Today, the Third Circuit held that this was a clear error, and ruled that the claims against the forum-selection-clause defendants will proceed in one forum while the claims against the no-clause defendants will proceed in another.

Joining Krause were Scirica and Fuentes. Arguing counsel for the mandamus petitioners was Robert Carty Jr. of Texas. Arguing for various defendants were Jed Marcus of Bressler Amery, Anthony Haller of Blank Rome, and Jeffery Brown of California.

 

New opinion — Third Circuit invalidates joint-and-several forfeiture order

US v. Gjeli — criminal — partial reversal — Jordan

The Third Circuit today vacated criminal forfeiture orders that imposed joint and several forfeiture liability on two co-defendants. Today’s ruling was based on the Supreme Court’s decision earlier this year in Honeycutt v. United States, which the opinion said effectively overturned prior circuit precedent. While Honeycutt interpreted only one federal forfeiture statute, the court held that its reasoning applies equally to two others. The court affirmed on two other sentencing grounds.

Joining Jordan were Krause and Stearns D.Mass by designation. The case was decided without oral argument.

New opinion — Third Circuit partially revives challenge to corporate escheat

Plains All American Pipeline v. Cook — civil — partial reversal — Fisher

After Delaware initiated proceedings to review whether a company’s property was subject to seizure under the state’s escheat law, the company filed suit, alleging various constitutional violations. The district court dismissed the suit, mainly on ripeness grounds because the suit was filed before Delaware assessed liability or sought to make its review findings enforceable. Today, the Third Circuit reversed in part, holding that the company’s as-applied procedural due process claim was ripe, but otherwise affirming. The court declined to affirm the dismissal of the due process claim on alternative grounds, citing circuit precedent that absent exceptional circumstances the court will decline to consider an issue not passed on below and finding no exceptional circumstances.

Joining Fisher were Chagares and Scirica. Arguing counsel were Jeremy Marwell of Vinson and Elkins for the company, Steven Rosenthal of Washington DC for one group of appellees, and Ryan McManus of Boston for another appellee.

 

New opinions — catching up on last week’s ten opinions, including another ACA blockbuster and several notable reversals

Last week I was on vacation. During slow periods it’s not all that rare for the Third Circuit to go a week without issuing a single published opinion. But July/August is never a slow period — that’s when clerkships typically end, so everyone is scrambling to clear the decks. Last week the court issued 10 precedential opinions, 5 on Friday alone.

And there were some big ones, including a hot-button Affordable Care Act case and reversals in criminal, habeas, immigration, and prisoner civil rights cases. But enough wind-up …

 

US v. Wrensford [July 31] — criminal — reversal in part — Shwartz

The Third Circuit held that a defendant was arrested for Fourth Amendment purposes when he was involuntarily taken to a police station and held in a cell. Seems obvious, but the district court ruled to the contrary. The court vacated his criminal conviction and remanded. The court affirmed a co-defendant’s convictions on various grounds.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were FPD Omodare Jupiter for the prevailing appellant, Martial Webster for the other appellant, and Rhonda Williams-Henry and David White for the government.

 

Haskell v. Superintendent [August 1] — habeas corpus — reversal — Ambro

In this significant habeas corpus opinion, the Third Circuit held that a petitioner who has established a reasonable likelihood that the prosecution’s knowing use of false evidence could have affected the outcome need not also show that the error was not harmless. (Or, for my fellow habeas nerds, once you clear Napue you don’t have to clear Brecht too.) On the merits, the court reversed the district court’s denial of relief. Appallingly, the district court had not even granted a certificate of appealability.

Joining Ambro were Vanaskie and Restrepo. Arguing counsel were AFPD Elisa Long for the appellant and Mark Richmond of the Erie DA’s office for the Commonwealth.

 

EEOC v. City of Long Branch [August 2] — civil procedure — reversal — Chagares

The Third Circuit summarized its decision vacating a district court ruling in an EEOC enforcement suit thus:

The EEOC raises two issues on appeal: (1) whether Long Branch is precluded from contesting the motion to enforce because it failed to exhaust its administrative remedies ***, and (2) whether the EEOC may disclose information from the noncharging parties’ employment and personnel records to Lt. Johnson ***. Despite the compelling nature of these issues, we will not reach them because of a procedural error committed by the District Court: the District Court erroneously treated the motion to enforce that the Magistrate Judge had reviewed as a nondispositive motion instead of a dispositive motion. This is a meaningful distinction under the Federal Magistrates Act, 28 U.S.C. § 631, et seq., as the categorization of motion dictates, inter alia, the level of authority with which a magistrate judge may act on a motion and the availability and standard of review afforded by the District Court and our Court.

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

 

Ildefonso-Candelario v. AG [August 3] — immigration — reversal — Stearns

The Third Circuit held that a conviction under Pennsylvania’s obstruction-of-justice statute, 18 Pa. Cons. Stat. 5101, is not categorically a crime involving moral turpitude because it sweeps in non-fraudulent conduct. The court firmly rejected the government’s request to remand without decision to let the BIA reconsider its ruling.

Joining Stearns (D. Mass., sitting by designation) were Jordan and Krause. Arguing counsel were Daniel Conklin of the Shagin Law Group for the petitioner and Rebecca Phillips for the government.

 

Blackledge v. Blackledge [August 3] — family — affirmance — Krause

The Third Circuit rejected a father’s appeal from denial of his petition alleging that the mother violated an international treaty by retaining custody of their son.

Joining Krause were Ambro and Nygaard. Arguing counsel for the father was former Fisher clerk M. Patrick Yingling of Reed Smith; Barbara Ernsberger of Behrend & Ernsberger argued for the mother. The opinion thanked the father’s counsel for accepting the court’s appointment in the case and for their “excellent briefing and argument.”

 

Millhouse v. Heath [August 4] — prisoner civil rights — reversal — Cowen

The mean-spirited Prison Litigation Reform Act contains a provision — the PLRA’s three strikes rule — that poor prisoners cannot qualify for the same reduced filing fees as any other poor litigants if they previously filed three or more prisoner suits that were deemed frivolous, because it’s so fair to punish people who are poor and lawyer-less for not accurately assessing the strength of their potential legal claims.

Last week, a partially divided Third Circuit panel held that a prisoner was entitled to file in forma pauperis despite having more than 3 prior suits dismissed as frivolous because (1) the number of PLRA strikes must be assessed as of the time the notice of appeal is filed and (2) dismissals without prejudice for failure to state a claim do not count as strikes. Judge Ambro disagreed on both points but would have reached the same result through equitable tolling.

Joining Cowen was Restrepo, with Ambro dissenting in part. Arguing counsel were Stephen Fogdall of Schnader Harrison for the prisoner and Timothy Judge for the government. The opinion thanked Fogdall and his Schnader co-counsel Emily Hanlon for their “excellent work” as pro bono counsel appointed by the court.

 

US v. Ferriero [August 4] — criminal — affirmance — Scirica

The Third Circuit affirmed the conviction and sentence of a New Jersey county politico convicted of violating the Travel Act, RICO, and the wire fraud statute by lobbying on behalf of commercial clients without disclosing his own financial interest. In a lengthy opinion, the court rejected various challenges to the convictions, including the defendant’s quite plausible-sounding argument that failing to disclose his interest cannot constitute making a false or fraudulent misrepresentation under the wire fraud statute. The court also rejected the defendant’s arguments relying on McDonnell v. United States.

Joining Scirica were Hardiman and Rosenthal SD Tex by designation. Arguing counsel were Peter Goldberger for the defendant and Bruce Keller for the government.

 

US v. Chapman [August 4] — criminal — affirmance — Greenaway

The Third Circuit held that a conviction for mailing a threat to injure constitutes a crime of violence under the Sentencing Guidelines. Judge Jordan concurred “to express dismay at the ever-expanding application of the categorical approach.”

Joining Greenaway were Jordan and Rendell. Arguing counsel were Ronald Krauss of the MDPA federal defender for the defendant and unfairly blocked Third Circuit nominee Rebecca Ross Haywood for the government.

 

In re: AE Liquidation [August 4] — civil — affirmance — Krause

The opinion’s introduction says it best:

This case arises from the bankruptcy and subsequent
closing of a jet aircraft manufacturer, and requires us to assess
that manufacturer’s obligation under the Worker Adjustment
and Retraining Notification (WARN) Act, 29 U.S.C. §§
2101-2109, to give fair warning to its employees before
effecting a mass layoff. On appeal, we are asked to determine
whether a business must notify its employees of a pending
layoff once the layoff becomes probable—that is, more likely
than not—or if the mere foreseeable possibility that a layoff
may occur is enough to trigger the WARN Act’s notice
requirements. Because we conclude that a probability of
layoffs is necessary, and the manufacturer has demonstrated
that its closing was not probable until the day that it occurred,
it cannot be held liable for its failure to give its employees
requisite notice. Accordingly, we will affirm ***

Joining Krause were Fisher and Greenberg. Arguing counsel were Jack Raisner of New York for the appellants and Barry Klayman of Cozen O’Connor for the appellees.

 

Real Alternatives v. Secretary DHHS [August 4] — civil — affirmance — Rendell

A sharply split Third Circuit panel held last week that a secular anti-abortion group with no religious affiliation was not entitled to the same exemption as houses of worship from the Affordable Care Act’s requirement that employer-provided health insurance include contraceptive services. The court also held that employees’ religious beliefs are not substantially burdened by the ACA’s contraception mandate. The majority answered both questions “[a]fter careful review, but without any hesitation.” A petition for certiorari seems a certainty and I sure wouldn’t bet against a grant.

Joining Rendell was Greenaway. Jordan dissented as to the rejection of the employees’ claims. Both authors are at the top of their game. Arguing counsel were Matthew Bowman of Alliance Defending Freedom for the employer and employees and Joshua Salzman for the government.

New opinion — when courts impose supervised release on defendants who are getting deported anyway, they need to explain why

US v. Azcona-Polanco — criminal sentencing — affirmance — Restrepo

Immigrants who have been convicted of a deportable offense are presumptively exempt from discretionary supervised release — deportation is essentially automatic, so imposing supervised release mainly serves to enhance any subsequent punishment for illegal reentry. But courts are allowed to impose supervised release on defendants who will be deported in individual cases, on the theory that the extra punishment will be an extra deterrent against re-entry.

That’s all backdrop for the sentencing procedure question the court answered yesterday: when judges impose supervised release on defendants who will be deported, despite the presumption, do they need to explain why? In a clear and thorough opinion, the Third Circuit said yes: they must acknowledge the presumption and state their reasons for nevertheless imposing it. In the case before it, the sentencing judge did neither, but the Court held that this failure was not plain error given the defendant’s prior criminal history including a prior illegal re-entry.

Joining Restrepo were Ambro and Vanaskie. The case was decided without oral argument.

New opinion — “Because his allegations against the beauty-products corporation are more than skin-deep, we reverse.”

Trzaska v. L’Oreal USA — employment — reversal — Ambro

The Third Circuit today ruled in favor of an in-house attorney who alleged that he was fired by L’Oreal for refusing to meet a corporate quota for patent applications (?) by filing applications for unpatentable products. The witty quote that forms the title of this post is from the opinion.

Ambro was joined by Fuentes; Chagares dissented. Arguing counsel were Harold Goodman of Raynes McCarty for the attorney and Christopher Carton of K&L Gates and Eric Savage of New York for L’Oreal.

New opinion — another masterful Ambro bankruptcy opinion

In re: Semcrude — bankruptcy — affirmance — Ambro

Is there a judge alive who does a better job of explaining complex business disputes than Judge Ambro? I’m not aware of any. The latest example comes today in the Third Circuit’s opinion affirming summary judgment in favor of one group of companies over another in a giant Chapter 11 bankruptcy case. Here’s the introduction:

Appellants, who are oil producers, sold their product to SemGroup L.P. and affiliates (including SemCrude L.P.), midstream oil and gas service providers and the Debtors in the underlying Chapter 11 cases. SemGroup sold oil to and traded oil futures with Appellees, downstream oil purchasers. The producers took no actions to protect themselves in case of SemGroup’s insolvency. The downstream purchasers did; in the case of default, they could set off the amount they owed SemGroup for oil by the amount SemGroup would owe them for the value of the outstanding futures trades. Accordingly, when SemGroup filed for bankruptcy, the downstream purchasers were paid in full while the oil producers were paid only in part.

Because the oil producers did not take precautionary measures to ensure payment in case of SemGroup’s insolvency, all they have to rely on are local laws they contend give them automatically perfected security interests or trust rights in the oil that ended up in the hands of the downstream purchasers. But the parties who took precautions against insolvency do not act as insurers to those who took none. Accordingly, we affirm the grant of summary judgment in the downstream purchasers’ favor.

Joining Ambro were Jordan and Fisher. Arguing counsel were Lewis LeClair of Texas for the producers, Thomas Moloney of Cleary Gottleib for J. Aron, David Zalman of New York for BP Oil Supply, and Hartley Martyn of Ohio for IC Co.

 

Also, I noticed today that earlier this week the Third Circuit issued its amended opinion in US v. Stimler, after entering an order noting the existence of factual errors in the original opinion. The new opinion is here, and I’ve updated my original post accordingly. Today, the court entered an order amending the amended opinion to correct a misspelling of Justice Blackmun’s name, but today’s order lists the wrong counsel at the bottom.

Now I wonder if the court will enter an order amending its order amending the amended opinion.

Two new opinions

Seneca Resources v. Township of Highland — civil — affirmance — Smith

A Pennsylvania township enacted an ordinance barring a gas company from using a well to store waste from fracking. When the gas company sued the township, four groups moved to intervene to help defend the statute. After their motion was denied on the theory that the township adequately represented the intervenors interests, the township repealed the ordinance and entered a consent decree. The would-be intervenors appealed, challenging the denial of intervention and the consent decree. The Third Circuit held that the denial of intervention was moot because there was no ordinance to defend and that, as non-parties, they could not appeal the consent decree.

Joining Smith were Jordan and Roth. Arguing counsel were Lindsey Schromen-Wawrin of Washington for the would-be intervenors, Stanley Yorsz of Buchanan Ingersoll for the gas company, and Arthur Martinucci of Quinn Buseck for the township.

 

Parks v. Tyson Foods — civil — affirmance — Jordan

The introduction:

This case concerns a trademark that once enjoyed widespread recognition but has since grown considerably weaker. Since the 1950s, Parks Sausage Company has manufactured or licensed sausage under the brand name “PARKS.”1 At one point, PARKS was placed on the Principal Register of trademarks at the United States Patent and Trademark Office (“USPTO”), but, sometime in the early 2000s, Parks failed to renew the registration. In 2014, Tyson Foods, Inc. and Hillshire Brands Company (collectively, “Tyson”),2 the owners of the frankfurter brand BALL PARK, launched a premium frankfurter product called PARK’S FINEST. Parks sued, arguing that Tyson was engaged in false advertising and was infringing Parks’s trademark. The District Court determined that Parks’s claim for false advertising was really a repetition of its trademark claim, and that the PARKS mark was too weak to merit protection against Tyson’s use of the PARK’S FINEST name. We agree with the District Court and will affirm in all respects.

The highlight of the opinion surely is this footnote:

Though it may distress the cognoscenti, we use the terms “frankfurters,” “franks,” and “hot dogs,” as synonyms. Not so with the term “sausage,” which we use to denote something akin to but arguably different from hot dogs.

Joining Jordan were Smith and Roth. Arguing counsel were Jeffrey Lewis of Eckert Seamans for the appellant and John Dabney of D.C. for the appellees.

New opinion: Third Circuit clarifies that a single act of harassment can establish a hostile work environment

Castleberry v. STI Group — civil / employment discrimination — reversal — Ambro

The Third Circuit today reversed a district court’s dismissal of an employment-discrimination suit. The court resolved its inconsistent caselaw on the harassment necessary to establish a hostile work environment, stating, “The correct standard is ‘severe or pervasive.” Applying this standard, the court held that a single act of harassment — a supervisor’s use of what the opinion called “the ‘n-word'” — constituted severe conduct sufficient to state a hostile-work-environment claim.

Joining Ambro were Vanaskie and Restrepo. Arguing counsel were Richard Swartz of Swartz Swidler for the employees and Donna Walsh of Myers Brier for the employers.

New opinion — Third Circuit upholds FCC caps on bidding assistance to telecom outsiders

Council Tree Investors v. FCC — civil / agency — affirmance — Hardiman

The Federal Communications Commission has a statutory duty to avoid “excessive concentration of [telecommunications] licenses” and to “disseminat[e] licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women,” collectively referred to as designated entities. Seemingly they’re not doing so hot, given what today’s opinion calls “our telecommunications quadropoly” of AT&T, Verizon, Sprint, and T-Mobile.

So it isn’t surprising that, when the FCC decided to scale back its efforts to help the outsiders get licenses, one of them sued. The main way the FCC helps designated entities is by giving them bidding credits to help them win license auctions. But in 2015 the FCC modified its bidding-credit regime, and one thing it did was impose a new cap on bidding credits. The challenger argued that the FCC ignored its statutory mandate and acted on an insufficient record.

Rejecting these challenges, the Third Circuit today upheld the FCC’s bidding-credit limit.

Joining Hardiman were Smith and Krause. Arguing counsel were Kevin Russell of Goldstein & Russell for the petitioner and Clifford Pash Jr. for the FCC.

Three new opinions, including another consumer win

Susinno v. Work Out World — civil / consumer — reversal — Hardiman

A company allegedly called a person’s cell phone and left a recorded sales pitch on her voicemail. She sued, alleging that the message violated the Telephone Consumer Protection Act’s prohibition on prerecorded calls to cell phones. The district court dismissed on the grounds that Congress wasn’t protecting people against single calls and that one message caused no concrete injury. Today, the Third Circuit disagreed on both points and reversed.

Joining Hardiman were Krause and Stengel EDPA by designation. Arguing cousel were Timothy Sostrin of Chicago for the plaintiff, Joshua Bauchner of Ansell Grimm for the company, and Andrew Pincus of Mayer Brown for the Chamber of Commerce as amicus.

 

In re World Imports — bankruptcy — reversal — Hardiman

The Bankruptcy Code gives priority to creditors who sold goods “received by the debtor within 20 days before the bankruptcy petition was filed. Today, the Third Circuit held that “received” requires physical possession.

Joining Hardiman again were Krause and Stengel EDPA. Arguing counsel were Kirk Burkley of Bernstein-Burkley for the appellants and David Braverman of Braverman Kaskey for the appellees.

 

Hamilton v. Bromley — civil — affirmance — Fisher

A father sued in federal court alleging a conspiracy to deprive him of contact with his son. After filing suit, he gained custody of his son pending the outcome of state-court litigation. Today the Third Circuit affirmed dismissal of the father’s suit, holding that the father’s custody mooted his federal case, but also that the district court erred in dismissing under Younger abstention without deciding mootness.

Joining Fisher were Hardiman and Roth (although Hardiman did not join the part of the opinion where the court said because it lacked jurisdiction it could not decide the Younger issue and that the district court applied the wrong Younger test.) Arguing counsel were Jon Heintz of Jones Day for the father, James Johnson of State College for the mother, Amy Marshall of Babst Calland for a youth home, and Michael Daley of the state AOC for a state judge. The opinion thanked Jones Day for handling the appeal pro bono and for the quality of counsel’s representation.

New opinions — Third Circuit recognizes right to film police in public

Fields v. City of Philadelphia — civil rights — reversal — Ambro

In a landmark free-speech ruling, the Third Circuit today held that individuals have a First Amendment right to film police activity in public. A panel majority further held that the officers who did the filming here were entitled to qualified immunity from suit because the right had not been sufficiently clearly established; Judge Nygaard dissented on this ground. The court remanded for the district court to decide whether the city was subject to municipal liability.

Joining Ambro was Restrepo; Nygaard joined in part and dissented in part. Arguing counsel were Molly Tack-Hooper of ACLU-PA for the plaintiffs and Craig Gottlieb of the Philadelphia city Law Department for the defendants. A host of top-flight appellate lawyers were on the briefs on the ACLU’s side, including Jonathan Feinberg of Kairys Rudovsky, Alicia Hickok of Drinker Biddle, and Ilya Shapiro of Cato Institute.

Early commentary by Eugene Volokh at Volokh Conspiracy here and by Mark Joseph Stern at Slate here.

US v. Stimler* — criminal — affirmance — Roth

The Third Circuit affirmed the convictions of three Orthodox Jewish rabbis who were convicted of conspiracy to commit kidnapping for their role in “a scheme through which they … sought to assist Orthodox Jewish women to obtain divorces from recalcitrant husbands.”  The court rejected 8 different challenges to the convictions; Judge Restrepo wrote separately to disagree with the panel majority’s conclusion that investigators’ warrantless use of cell site location information did not violate the Fourth Amendment, but would have affirmed anyway under the good-faith exception.

Joining Roth was Chagares; Restrepo concurred in the judgment in part. Arguing counsel were Nathan Lewin of Washington DC for one defendant, Aidan O’Connor of Pashman Stein for the second, and Peter Goldberger for the third. Arguing for the government were Norman Gross and Glenn Moramarco of the NJ US Attorney’s office.

Early news coverage here and here.

UPDATE: on July 17 the court issued an order stating that the government “has advised of factual errors contained within the opinion” and that in light of the letter the Court will issue an amended opinion. It states that the amendment does not alter the judgment.

*The link at the top of this entry now goes to the amended opinion issued July 17. The original, withdrawn opinion is here.

Three new opinions [updated]

US v. Jackson — criminal — reversal — Cowen

The government appealed from the criminal sentences imposed on a husband and wife for abusing their foster children. A divided Third Circuit reversed for resentencing on a host of grounds.

The 82-page majority opinion noted:

This case implicates a number of rather unusual sentencing issues. This is not surprising because Defendants were not convicted and sentenced for committing enumerated federal crimes of the sort that federal courts consider on a regular basis. Instead, they were convicted and sentenced in federal court for state law offenses “assimilated” into federal law pursuant to a federal statute, the ACA.

The panel majority held that the district court erred in concluding that the federal sentencing guideline for assault was not sufficiently analogous to use to calculate the defendants’ guideline range. The district court also erred in refusing to make sentencing-related findings of fact beyond the findings found by the jury at trial. And it erred some more by “focusing on state sentencing principles to the exclusion of basic federal sentencing principles.” Judge McKee dissented, mainly to disagree with the majority on the analogous-guideline point.

Finally, Judge Cowen’s majority opinion concluded that “we do conclude” that the sentences were substantively unreasonable. But a footnote in the majority opinion stated that Judge Fuentes “would vacate” on the preceding procedural grounds “without reaching” substantive unreasonableness. (A footnote in Judge McKee’s dissent states that he refrains from reaching the issue.) So is there a precedential holding on substantive unreasonableness? It’s possible to argue either way, and I expect future litigants will do exactly that. I think the substantive reasonableness section probably is precedential, but the opinion’s failure to be clear on that point is strange.

Joining Cowen was Fuentes; McKee dissented with some harsh language for the government. Arguing counsel were John Romano of the NJ US Attorney’s office for the government, Herbert Waldman of Javerbaum Wurgaft for the wife, and Louise Arkel of the NJ federal defender for the husband.

 

Knick v. Township — civil — affirmance — Smith

A Pennsylvania township enacted an ordinance that authorizes officials to enter any property “for the purpose of determining the existence of and location of any cemetery” and compels private cemeteries to open themselves to the public during daylight hours.

The Third Circuit described the ordinance as “extraordinary and constitutionally suspect,” noting “it is difficult to imagine a broader authorization to conduct searches of privately owned property” and urging the township to abandon it. But the court affirmed dismissal of a suit challenging the ordinance, holding that the plaintiff lacked standing to raise a facial Fourth Amendment challenge because her rights were not violated and that her Fifth Amendment takings claim is not ripe because she had not first sought compensation under the state’s inverse-condemnation procedure. (Embarrassingly, the court noted that the standing issue had not been raised by the township, and that it did raise a “curious” argument that the plaintiff failed to satisfy Monell because she failed to show a cognizable injury.) The opinion helpfully clarifies the different burdens for facial and as-applied challenges and distinguishes facial takings from facial challenges.

Smith was joined by McKee and Rendell. Arguing counsel were J. David Breemer of the Pacific Legal Foundation for the plaintiff and Thomas Specht of Marshall Dennehey for the township defendants.

 

Taha v. County — class action — affirmance — Greenberg

The Third Circuit affirmed an order granting class action certification in a suit against defendants who created a web page that made available information about over 60,000 people who had been held at a county jail, including persons whose records were expunged. The defendants had argued that the court erred in deciding certification after ruling on a motion for partial summary judgment, but the court held that this challenge was waived because it was not raised below. The defendants also argued that the court erred in certifying a punitive damages class on several grounds, including standing and predominance, but the court disagreed.

Joining Greenberg were Greenaway and Shwartz. Arguing counsel were Burt Rublin of Ballard Spahr for the county defendants and Robert LaRocca of Kohn Swift for the plaintiffs.

New opinion — maybe 69 phone calls over a $25 debt wasn’t such a hot idea

Daubert v. NRA Group — civil / consumer — reversal in part — Fisher

“This case,” today’s Third Circuit’s opinion begins, “— involving tens of thousands of dollars in statutory damages, half a jury trial, and cross-appeals — stems from a debt collector’s pursuit of $25 in unpaid medical bills.” After debt collector called a medical patient’s cellphone 69 times over 10 months (!), he sued them, alleging that they violated the Telephone Consumer Protection Act. He also alleged that the collection letters they sent him violated the Fair Dept Collection Practices Act. The district court granted summary judgment in the plaintiff’s favor on the TCPA claim, but granted judgment as a matter of law in the defendant’s favor on the FDCPA claim. Today, the Third Circuit affirmed on the TCPA but reversed on the FDCPA, handing the debt collector a total defeat.

Joining Fisher were Hardiman and Roth. Arguing counsel were Richard Perr of Fineman Krekstein and Carlo Sabatini of the Sabatini Law Firm. (The caption doesn’t say who represented whom, but their respective practice areas suggest that Perr represented the debt collector and Sabatini represented the plaintiff.)

Two new opinions

US v. Johnson — criminal — affirmance — Fuentes

The Third Circuit rejected a defendant’s argument that a district court lost jurisdiction to revoke his supervised release when a different district court revoked an unrelated concurrent term of supervised release. In rejected the argument that concurrent terms of supervised release merge, The court joined the Second and Fifth Circuits. The court also rejected the defendant’s argument that the district court lacked jurisdiction to revoke him because he was living in the other district and his release was being supervised by the other district.

Joining Fuentes were Greenaway and Shwartz. Arguing counsel were Omodare Jupiter of the VI FPD for the defendant and David White for the government.

 

Blanyar v. Genova Prods. — civil — affirmance — Vanaskie

The introduction says it best:

Appellants, former employees of Appellee Genova
Products Inc. (“Genova”), challenge the District Court’s
decision to dismiss their putative class action for medical
monitoring as barred by the applicable two year statute of
limitations. While acknowledging that their exposure to the
alleged toxic substances upon which they base their medical
monitoring claims ended more than two years before
commencing this litigation, Appellants contend that the
limitations period should have been tolled by the discovery
rule and should not have begun to run until they discovered
the toxicity of the substances present in the Genova
workplace, a discovery they claim was first made less than
two years before this action was initiated. The District Court
concluded that the discovery rule did not save Appellants’
action because information concerning the dangers of the
chemicals to which Appellants were exposed had been widely
available for decades before they filed their complaint. For
the reasons that follow, we will affirm the dismissal of
Appellants’ lawsuit.

Joining Vanaskie were Fisher and Krause. Arguing counsel were Sol Weiss of Anapol Weiss for the class plaintiffs and Justin Bagdady of Michigan for the class defendants.

Three new opinions

De Ritis v. McGarrigle — civil rights — reversal — Krause

The Third Circuit today emphatically rejected a former public defender’s claim that his First Amendment rights were violated when he told others that he had been transferred because he took too many cases to trial. The court reversed the district court’s denial of summary judgment based on qualified immunity. Among the court’s holdings was that an attorney’s idle chatter with other lawyers in court during breaks between proceedings is not protected by the First Amendment.

Krause was joined by Vanaskie and Nygaard. Arguing counsel were De Ritis pro se and Mark Raith of Holsten & Associates for the public defender.

 

Halley v. Honeywell Int’l — class action — affirmance in part — Scirica

The Third Circuit upheld approval of a $10 million class action settlement of a large chemical pollution suit. The court rejected several challenges to the settlement, including various arguments that the court lacked a sufficient factual record for approval. The court also upheld the $2.5 million attorneys’ fees award, but remanded for reconsideration of the award of costs because the lower court failed to adequately explain its reasoning.

Joining Scirica were Ambro and Vanaskie. Arguing counsel were Thomas Paciorkowski of Jersey City for the objector and Anthony Roisman of Vermont for the appellees.

 

Duquesne Light Holdings v. C.I.R. — tax — affirmance — Ambro

A divided Third Circuit panel today affirmed a tax-court ruling applying the Ilfeld doctrine that, absent clear Congressional intent, the tax code should not be interpreted to give taxpayers the equivalent of a double deduction. The tax-liability dispute here is, to my inexpert eye, arcane.

Joining Ambro was Krause; Hardiman dissented. Arguing counse were appellate powerhouse James Martin of Reed Smith for the taxpayer and Arthur Catterall for the government.

This should be interesting: a Porngate-related Third Circuit oral argument

On July 10, the Third Circuit panel of McKee, Ambro, and Restrepo will hear oral argument in Fina v. Miletto, No. 16-3311. The appeal arises from a suit brought by Frank Fina and other former state prosecutors and investigators alleging that convicted former Pa. AG Kathleen Kane violated their First Amendment rights during the Porngate scandal. Legal Intelligencer coverage of the district court’s dismissal is here.

Here is the appellant’s case summary:

Whether Kathleen Kane’s criminal misconduct, which was designed to coerce and silence plaintiffs criticisms of her while Kane was serving as the AG, constituted unlawful governmental retaliation for Plaintiffs protected exercise of free speech?

And the appellee’s:

Whether former AG Kathleen Kane violated the constitutional rights of the plaintiffs when she publicly criticized the work they did as criminal investigator and prosecutors and released pornography that they had maintained on the AG’s computer system.

Should be interesting.

Arguing for the appellants will be Mark Tanner of Feldman Shepherd; Edward Ellis of Littler Mendelson is arguing for the AG.

New opinion — a habeas reversal based on Martinez v. Ryan

Lambert v. Warden — habeas corpus — reversal — Ambro

The Third Circuit today held that an error by a habeas petitioner’s post-conviction counsel excused the procedural default of his claim that his trial counsel was ineffective. This is the court’s third major case applying Martinez v. Ryan, following Cox v. Horn in 2014 and Bey v. Superintendent earlier this year.

The appeal arose from a joint criminal trial of two defendants. The prosecution introduced evidence that the other defendant made certain statements to his psychiatrist, and at closing the prosecutor argued that those out-of-court statements helped prove this defendant’s guilt. Trial counsel didn’t ask for a limiting instruction based on this alleged Confrontation Clause violation. PCRA counsel didn’t argue that trial counsel was ineffective, explaining in a no-merit letter that the statements were party admissions.

The Third Circuit held today that the trial-ineffectiveness claim had some merit and that PCRA counsel was ineffective for not raising it, thus excusing under Martinez the default of the trial ineffectiveness claim. The court remanded for an evidentiary hearing on trial counsel’s ineffectiveness.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Cheryl Sturm of Chadds Ford, PA, for the petitioner and Catherine Kiefer of the Philadelphia DA’s office for the Commonwealth.

New opinion — fathers challenging NJ’s child-custody laws can’t sue judges

Allen v. DeBello — civil — affirmance — Fuentes

The Third Circuit today held that a 1983 challenge to New Jersey’s child-custody law that named New Jersey judges as defendants was barred by judicial immunity because judges making custody rulings are acting as judicial arbiters rather than enforcers. The plaintiffs are fathers who alleged that child-custody laws in practice favor mothers.

Joining Fuentes were Ambro and Shwartz. Arguing counsel were Paul A. Clark of Jersey City (whose website is unusual) for the fathers and Benjamin Zieman for the state.

New opinion — Third Circuit rejects couple’s challenge to tax levy

Hassen v. Government of the Virgin Islands — civil — affirmance — Shwartz

The Third Circuit today held that a Virgin Islands couple failed to plead a violation of 26 USC 7433(a) for wrongfully levying a property because their complaint rested on conclusory legal assertions without presenting facts to support them. The court noted that 7433(d) contains a mandatory-but-not-jurisdictional administrative exhaustion requirement.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were Alexander Golubitsky of Marjorie Rawls Roberts PC for the couple and Su-Layne Walker for the government.

New opinion — Third Circuit upholds agency’s black-lung regulation

Helen Mining v. Elliott — administrative — affirmance — Krause

The Third Circuit today upheld a federal agency’s power to issue a regulation imposing on mine operators the burden of rebutting disability causation, and it upheld the agency’s award of black-lung benefits to a worker against a mine operator.

Joining Krause were Chevron-critic Jordan and Vanaskie. Arguing counsel were Christopher Pierson of Burns White for the mining operator, Heath Long of Pawlowski Bilonick for the worker, and Sean Bajkowski for the government agency.

By the way, seems like a flurry of Krause opinions lately, no? Turns out, of the Third Circuit’s last 11 published opinions, Judge Krause authored 4 of them, while no other judge wrote more than one. Interesting, but significant? It could well just be a random statistical blip, since she didn’t write any of the 11 published opinions before this.

New opinion — a Delaware case with “a long and tortuous litigation trail”

Norman v. Elkin — civil — reversal in part — Jordan

After the two shareholders in a company disagreed over the majority shareholder’s actions, the minority shareholder sued. “It was the beginning of a long and tortuous litigation trail,” the Third Circuit explained today in an opinion that won’t end that trail:

We conclude that the District Court erred in concluding that tolling of the statute of limitations is categorically inappropriate when a plaintiff has inquiry notice before initiating a books and records action in the Delaware courts. Accordingly, we will send most of the claims back to the District Court to determine whether tolling should have applied and, if so, whether any of the claims are nevertheless time-barred. We also conclude that the District Court erred when it vacated the jury’s award of nominal damages for one of Norman’s breach of contract claims. Finally, we hold that Norman’s fraud claim was not supported by sufficient proof of damages and we thus affirm judgment as a matter of law on that claim on the alternative grounds that Elkin has proposed.

Two interesting points:

  • The opinion deemed waived two arguments that a party attempted to incorporate by reference from his district-court filings.
  • Judge Shwartz disagreed with the panel’s disposition of one of the issues, but instead of writing separately the opinion included a footnote noting her “different perspective on this point.”

Joining Jordan were Smith and Shwartz. Arguing counsel were David Felice of Bailey and Glasser for one side and Steven Caponi of Blank Rome for the other.

Supreme Court issues GVR in joint-forfeiture case from Third Circuit

The Supreme Court today granted certiorari, vacated, and remanded — a GVR, in Scotus-speak —  in a Third Circuit case.

The case is US v. Cynthia Brown. The Third Circuit’s non-precedential opinion is here. The GVR order is here. The basis for the GVR was Honeycutt v. US, in which the Supreme Court limited the availability of joint and several co-conspirator forfeiture liability.

Brown is represented by Peter Goldberger.

New opinion — Third Circuit hammers IJ for hostile asylum hearing

Serrano-Alberto v. AG — immigration — reversal — Krause

Appellate judging is a cerebral job. But good judges retain the capacity to be outraged by outrageous things. Today, the Third Circuit issued an opinion brimming with outrage, condemning the shabby way an immigration judge treated a man seeking asylum and remanding to give him a new chance to present his case.

The man seeking asylum was a famous El Salvadoran soccer player who was extorted for money by the MS13 gang. When he stopped paying, they began trying in earnest to kill him and his family. Eventually he fled to the U.S., was caught, sought asylum pro se, and got a hearing before longtime immigration judge Mirlande Tadal.

Today’s opinion recounted the asylum hearing in devastating detail, identifying the IJ by name and ultimately concluding that her conduct involved “a hostile and demeaning tone, a focus on issues irrelevant to the merits, brow beating, and continual interruptions.” Further: “the pervasiveness and egregiousness of the … problematic conduct here … evinced bias and created an intolerable atmosphere of intimidation.” On this record, the court held that the IJ’s conduct deprived the petitioner of his due process right to a fair hearing before an impartial arbiter.

Joining Krause were Vanaskie and Nygaard. Arguing counsel were Zachary Nightingale of California for the petitioner and Lindsay Murphy for the government.

Supreme Court denies certiorari to Troy Coulston, which sucks

A year ago, the Third Circuit issued a non-published per curiam opinion in an inmate-rights appeal. Even though I normally don’t blog about non-precedential opinions, I wrote a long and overwrought post about why I thought this one was unfair, peppered with sophisticated legal terms such as “wacky,” “ohbytheway,” and “hooey.” Future generations will remember it as the ‘shaking of my little fist’ post.

The Third Circuit thereafter denied rehearing, and today the Supreme Court denied certiorari.

Sorry, Mr. Coulston. I still think you were right.

New opinion — a Virgin Islands election case

Rodriguez v. 32nd Legislature — elections — affirmance — Shwartz

After a candidate was elected to the Virgin Islands Legislature, his former opponent filed a suit alleging that he was unqualified to serve because he had sworn under oath in a bankruptcy filing that he lived in Tennessee. The elected candidate removed that suit to federal court and filed one of his own, asking the court to declare that the qualification decision must be made by the legislature, not the courts. Today the Third Circuit held that, under Virgin Islands law and separation of powers principles, only the legislature could decide the qualifications of its members.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were Francis Jackson for the elected candidate, Terri Griffiths for the opponent, and Kye Walker for the legislature.

Early news coverage here.

New opinions — one habeas, one bankruptcy, both with appointed amicus counsel and both reversing [updated]

Vickers v. Superintendent — habeas corpus — reversal — Krause

The Third Circuit reversed a district court’s grant of habeas corpus relief, holding that trial counsel’s failure to secure an on-the-record waiver of his client’s right to a jury trial was deficient performance but that the defendant was not prejudiced given deference to state-court credibility findings. The opinion contains three other notable holdings: (1) that the state court’s ruling was not subject to 28 USC 2254(d)’s limitation on relief because it applied the wrong standard, (2) that prejudice was not presumed because the state court found that defendant had been informed of his jury-trial right, and (3) that the correct prejudice standard for cases like this is whether there was a reasonable probability that the defendant would have opted for a jury trial.

In a blistering footnote, the court catalogued the Washington County (PA) DA’s office’s “‘dereliction of duty'” during the habeas proceedings, noting that it was “deeply disturbed” and urging the office to act with “far greater diligence and professionalism.”

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Jerome Moschetta for the Commonwealth and David Fine of K&L Gates as amicus counsel for the petitioner. The opinion thanked Fine and his co-counsel Nicholas Ranjan for accepting the court’s appointment pro bono and for the quality of their briefing and argument.

 

In re: Ross — bankruptcy — reversal — Vanaskie

A homeowner facing foreclosure twice filed bankruptcy petitions to stave off the sheriff’s sale of the home. After the second filing, the district court entered an injunction barring him from future bankruptcy filings without its permission. The district court did not explain its reasoning for imposing this injunction, which was broader than what the bank had requested and broader than what the same court had imposed in a related, similar case.

The Third Circuit held that the bankruptcy code does not prohibit courts from entering filing injunctions after a debtor moves for voluntary dismissal, but that the broad injunction here was an abuse of discretion, noting that abuse-of-discretion review is less deferential when the challenged ruling below was unexplained.

Joining Vanaskie were Krause and Nygaard. Arguing counsel were Charles Hartwell of Dethlefs Pykosh (the firm’s name is misspelled in the caption) for the bank and former Stapleton clerk William Burgess of Kirkland & Ellis as court-appointed amicus for the debtor. The court expressed its gratitude to amicus for “valuable assistance.”

Three new opinions plus an en banc grant

In re: Zoloft — civil — affirmance — Roth

“This case involves complicated facts, statistical methodology, and competing claims of appropriate standards for assessing causality from observational epidemiological studies. Ultimately, however, the issue is quite clear.” So said the Third Circuit today, affirming a district court’s decision to exclude an expert witness in a high-stakes drug-liability case.

Joining Roth were Chagares and Restrepo. Arguing counsel were former assistant to the Solicitor General David Frederick of Kellogg Hansen for the appellants and Mark Cheffo of Quinn Emanuel for the appellees.

 

US v. Fattah Jr. — criminal — affirmance — Smith

In this latest chapter in the Chip Fattah saga, the Third Circuit ruled that while an FBI agent’s media disclosures about Fattah were wrongful, Fattah was not entitled to relief.

Joining Smith were Hardiman and Krause. Arguing were Eric Gibson for the government, Fattah for himself, and Ellen Brotman as amicus appointed by the court for Fattah. The court thanked Brotman for her “excellent advocacy” which the court noted she provided on an expedited basis.

 

Gillette v. Prosper — prisoner civil rights / jurisdiction — dismissal — Hardiman

The Third Circuit dismissed for lack of jurisdiction a prisoner’s interlocutory appeal challenging denial of his request under the PLRA that his case be decided in district court by a three-judge court.

Joining Hardiman were Chagares and Jordan. Arguing counsel were Joseph DiRuzzo III for the prisoner and Kimberly Salisbury for the warden.

 

US v. Douglas

The Third Circuit granted rehearing en banc in US v. Douglas, with oral argument “limited to the application of the enhancement for abuse of position of trust under U.S.S.G. 3B1.3.” My coverage of the now-vacated panel ruling is here — Judge Greenaway had dissented from the panel majority’s holding on this point.

New opinion — Third Circuit approves post-expiration grace periods in bankruptcy

In re: Klaas — bankruptcy — affirmance — Krause

Here is the opening paragraph from today’s Third Circuit opinion deciding an interesting little question of bankruptcy procedure:

The Bankruptcy Code sets certain limits on the amount of time that debtors may be required to remain in Chapter 13 proceedings and make payments on their debts. This case presents two questions of first impression among the Courts of Appeals: whether bankruptcy courts have discretion to grant a brief grace period and discharge debtors who cure an arrearage in their payment plan shortly after the expiration of the plan term, and if so, what factors are relevant for the bankruptcy court to consider when exercising that discretion. Because we conclude the Bankruptcy Code does permit a bankruptcy court to grant such a grace period and the Bankruptcy Court did not abuse its discretion in granting one here, we will affirm the rulings of the District Court, which in turn affirmed the relevant order and judgment of the Bankruptcy Court.

The court observed that post-expiration arrearages appeared to be a recurring problem, and it criticized the Chapter 13 trustee’s handling of the problem here.

Joining Krause were Fisher and Vanaskie. Arguing counsel were Aurelius Robleto of Pittsburgh for the appellant, Phillip Simon for two appellees, and Owen Katz for the appellee trustee.

New opinion — Third Circuit clarifies preliminary-injunction standard

Reilly v. City of Harrisburg — civil — reversal — Ambro

The Third Circuit today clarified the standard for granting preliminary injunctions. It’s always been clear that the preliminary injunction test has 4 pieces — (1) probability of success, (2) irreparable injury, (3) harm to others, and (4) public interest — but circuit caselaw has been contradictory about how the burden of proof works. Some cases said the movant has the burden of proving only the first two, while others said the movant must prove all four.

Today, the court held that the movant has the burden of proving only the first two parts of the test. It reasoned that this rule predated the must-prove-all-four cases and thus was binding under the rule that later panels can’t overrule earlier ones. It also reasoned that a contrary result wasn’t required by the Supreme Court’s 2008 statement that  “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

The underlying case arose from a challenge against Harrisburg’s 20-foot health-care buffer-zone ordinance brought by “sidewalk counselors” who seek to dissuade women from getting abortions. Despite the incendiary nature of the underlying suit, I read today’s opinion as entirely non-ideological and limited to cleaning up how the preliminary-injunction standard works.

Joining Ambro were Jordan and Roth. Arguing counsel were Horatio Mihet of Liberty Counsel for the movants and Joshua Autry of Lavery Faherty for the appellees.

Two messy new opinions

Oliver v. Roquet — civil rights / civil commitment — reversal — Krause

This appeal arose after a state psychologist recommended an unfavorable action against a civil detainee in a report that referred critically to the detainee’s pro se litigation and legal assistance for other detainees. The psychologist said the detainee’s legal work could be “counter-therapeutic” for him.

In an interlocutory appeal, the Third Circuit today held that the district court erred in denying the psychologist’s qualified-immunity motion. The court first rejected the detainee’s argument that the psychologist’s assertion of qualified immunity came too late because it was not included in her first motion to dismiss.

The court then held that the detainee’s First Amendment claim failed to adequately allege causation. A state actor’s mere consideration of protected activity normally is enough to plead retaliation in a retaliation case, but more than mere consideration of protected activity is required to state a valid retaliation claim against a mental health professional at a state institution for the civilly committed: “There must be particular facts alleged that allow the court to reasonably infer it is the protected activity itself, and not simply medically relevant behavior associated with that activity, that formed the basis of the defendant’s adverse action.”

Finally, the court alternatively held that the detainee’s asserted right was not clearly established.

Joining Krause were Ambro and Smith. Arguing counsel were David DaCosta of the NJ Attorney General’s office for the psychologist and Stephen Fogdall of Schnader as amicus counsel for the detainee. The court thanked Fogdall “for accepting this matter pro bono and for the quality of his briefing and argument in this case.”

 

Fahie v. People — criminal — affirmance — Jordan

The Third Circuit today affirmed a Virgin Islands criminal conviction. The court held that it was not an abuse of discretion for the court to issue an aiding-and-abetting instruction even though the co-defendant had pled to being an accessory after the fact, rejecting the defendant’s argument that the plea meant there was no one for him to abet.

The case was unusual in two ways. First, the Third Circuit granted certiorari to review the Virgin Islands ruling after Congress revoked the court’s cert. jurisdiction. But the court applied its prior precedent to hold that the revocation did not apply to cases that had commenced in the Virgin Islands courts before the revocation, precedent the Virgin Islands bar association decried in an amicus brief as “absurd.” Second, the court dismissed as improvidently granted a second issue on which the court had granted certiorari, concluding that the issue turned in territorial rather than federal law. A bit of a mess.

Joining Jordan were Chagares and Hardiman. Arguing counsel were David Cattie for the petitioner, Su-Layne Walker of the VI Attorney General’s office for the people, and Edward Barry for the bar association amicus.

New opinions — two civil affirmances

Jones v. Does — civil / arbitration — affirmance — Fuentes

Today the Third Circuit ruled against an employer who argued that an overtime-pay suit against it should have submitted to arbitration. The employees sued the employer under the Fair Labor Standards Act. The employer moved to stay or dismiss pending arbitration, arguing that disputes over interpretation of the collective-bargaining agreement had to be arbitrated, but the district court disagreed and a divided Third Circuit panel affirmed.

Joiing Fuentes was Chagares; Ambro dissented. Arguing counsel were Stuart Weinberger of Goldberg & Weinberger for the employer and Matthew Miller of Swartz Swidler for the employees.

 

Petras v. Simparel — civil / qui tam — affirmance — McKee

The Third Circuit today affirmed dismissal of a suit under the False Claims Act. Addressing an issue of first impression, the court held that the Small Business Administration was not acting as the government for FCA purposes when it was merely a receiver for a private company. The court also relied on legislative history to rule that certain contingent obligations fell outside the FCA’s scope.

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

 

New opinion — error to dismiss inmate’s claim that prison retaliated against him for doing his job as legal assistant

Wisniewski v. Fisher — prisoner civil rights — reversal — Vanaskie

The Third Circuit today reversed a district court’s dismissal of an inmate’s civil-rights suit.

The prisoner, Thomas Wisniewski, worked as an inmate legal aide in SCI Smithfield’s law library. In the course of helping a mentally ill inmate prepare a grievance — doing his job — Wisniewski obtained a similar grievance from another inmate to use as a model. The prison treated this as circulating a petition, which is insane. (For starters, the prison’s own guidelines defined petitions as containing 3 or more signatures.) So the prison put poor Wisniewski in restricted housing for almost 90 days for misconduct, and Wisniewski alleged that they retaliated in several other ways including firing him from his law-library job. The district court dismissed, ruling that Wisniewski failed to allege a First Amendment retaliation claim and his other claims were time-barred.

Today the Third Circuit crisply reversed, holding that the prisoner’s allegations stated a valid First Amendment claim and that the district court erred in failing to consider whether tolling during administrative exhaustion rendered his other claims timely.

Joining Vanaskie were Ambro and Scirica. Arguing counsel were Hardiman clerk (famously so) Richard Heppner Jr. of Reed Smith for the prisoner and Debra Rand of the PA DOC for the prison defendants. The opinion expressed sincere appreciation to Heppner and his Reed Smith co-counsel Patrick Yingling, a Fisher clerk, for their “excellent representation,” noting they “performed admirably” and were “of immense assistance to the Court.”

Scotus review of Third Circuit case sought to resolve circuit split over who can challenge rental-car searches

A Supreme Court powerhouse filed a petition for certiorari last week challenging a Third Circuit ruling in a vehicle-search case.

Terrence Byrd was stopped by Pennsylvania police while driving a rental car. He was alone in the car, and he was not listed on the rental agreement. Police searched his car, found drugs and body armor in the trunk, and arrested him. Byrd argued that the search violated the Fourth Amendment, but the district court ruled that Byrd had no reasonable expectation of privacy because he was the sole occupant of the car and wasn’t listed on the car-rental agreement.

Following prior circuit precedent that such persons have no expectation of privacy and thus no standing to challenge the vehicle search, the Third Circuit panel affirmed in a non-precedential opinion authored by Eighth Circuit Senior Judge Michael Melloy sitting by designation. The opinion noted that the circuits were split on the issue.

Two days ago, Byrd filed a petition urging the Supreme Court to resolve the circuit split. Counsel of record on the petition is Joshua Rosenkranz of Orrick Herrington, founder of the Brennan Center for Justice and now a prominent Supreme Court litigator. Also on the petition was Frederick Ulrich of the MDPA federal defender, who represented Byrd in the Third Circuit.

The petition took a clever approach to illustrating the circuit split:

In February 2014, the Meadowlands, in East Rutherford, New Jersey, was host to Super Bowl 48. Suppose the local police, knowing that thousands of
out-of-towners would be drinking and driving that weekend, decided to set up an elaborate network of sobriety checkpoints around town. Under Third Circuit law, the police would have been allowed to conduct full-vehicular searches of every rental car driven by an unlisted driver that they stopped that weekend, regardless of whether they had a warrant or any suspicion of a crime. The same is true in the Fourth, Fifth, and Tenth Circuits and two state supreme courts.

Over the ensuing two years, Super Bowls 49 and 50 took place in Glendale, Arizona and San Francisco, California, respectively. There, football fans could rest easy knowing they retained their Fourth Amendment rights against warrantless and suspicionless searches. For unlike the Third Circuit, the Ninth Circuit (like the Eighth and four state courts of last resort) holds that an unlisted driver has a reasonable expectation of privacy in a rental car as long as he has the renter’s permission to drive the car.

Then came Super Bowl 51, held in Houston, Texas. There, the governing Fourth Amendment doctrine is woefully inconsistent, for in Texas, as in four other states, the state high court and applicable federal circuit court have reached opposite conclusions on the issue of whether an unlisted driver’s expectation of privacy in a rental car is reasonable. Thus, football fans could have challenged warrantless and suspicionless searches of their vehicles there, if they were prosecuted in state court, but not if they were prosecuted in federal court.

Such is the elusive nature of the Fourth Amendment’s protection against unreasonable searches under the law today.

Stay tuned.

 

 

 

New opinion — IRS error doesn’t excuse taxpayer’s late filing

Rubel v. CIR — tax — affirmance — Shwartz

Suppose the IRS denies your petition and tells you in a letter that your appeal is due April 19, so you appeal on April 19. But actually the statute says your appeal was due a week or two earlier, so the IRS argues that your appeal ought be tossed as untimely.

Fair? Maybe not, but today the Third Circuit held that the appeal deadline was jurisdictional so fairness mattered not. In a footnote, the court primly “remind[ed] the IRS to exercise care when drafting correspondence to a taxpayer.”

Joining Shwartz were Greenaway and Simandle DNJ by designation. Arguing counsel were Carlton Smith of New York for the taxpayer and Richard Caldarone for the government.

New opinions — an immigration reversal and 1L property-class flashbacks

Flores v. AG — immigration — reversal — Fuentes

Our government decided to remove a Guatemalan woman who had pled guilty to being an accessory after the fact to murder — she saw her jealous ex-boyfriend kill her current boyfriend, but did not tell police because because the murderer threatened to kill her and her 3-year daughter if she did. She contested her removal because “her father, who had physically and sexually abused her as a child, wanted to kill her” and “she had been raped by members of a local gang immediately following her previous removal to Guatemala.” The BIA ruled against her on the grounds that her conviction was related to obstruction of justice and thus so serious that she was ineligible for withholding of removal. The Third Circuit today reversed in a thorough and compelling opinion.

Joining Fuentes was Ambro; Shwartz dissented. Arguing counsel were Marcia Kasdan for the petitioner and Andrew Insenga for the government.

US v. Cardaci — property / tax — partial affirmance — Jordan

I could be mistaken, but I’m pretty sure I’ve never seen this sentence in a court opinion before: “To give one admittedly extreme example, it stands to reason that a healthy twenty-six-year-old wife would have a greater interest in a life estate than would her ailing eighty-nine-year old husband.” Will today’s opinion containing that sentence become the leading case for this proposition? I’m eager to find out.

After a husband’s business nosedived and he failed to pay around $80,000 in taxes, the government sued him for back taxes, seeking a forced sale of the home where he lived with his wife. The district court decided the husband’s share of the jointly owned house wasn’t worth enough and instead ordered the husband to start paying the government rent instead. Today, the Third Circuit held that the district court did have the power to order a forced sale of a jointly owned house in New Jersey, but it remanded for reconsideration of the remedy.

Joining Jordan were Greenaway and Rendell. Arguing counsel were Julie Avetta (subject of this 2009 Washington Post “OnLove” essay, and also an accomplished classical singer) for the government and Anthony Monzo of Monzo Catanese for the homeowners.

New opinion — Third Circuit affirms non-dischargeability of tax liabilities

In re: Giacchi — bankruptcy — affirmance — Roth

Today the Third Circuit rejected a debtor’s argument that certain tax liabilities were dischargeable in bankruptcy. The opening paragraph of the opinion:

In this appeal, we must determine whether Internal Revenue Service Forms 1040, filed after the IRS has made an assessment of the taxpayer’s liability, constitute “returns” for purposes of determining the dischargeability in bankruptcy of tax debts under 11 U.S.C. § 523(a)(1)(B). Thomas Giacchi did not file tax returns on time for the years 2000, 2001, or 2002. Instead, he filed the forms years after they were due and after the Internal Revenue Service had assessed a liability against him. In 2010 and 2012, Giacchi filed for bankruptcy, and in 2013 he sought to discharge his tax liability for the years 2000, 2001, and 2002. The District Court affirmed the Bankruptcy Court’s order denying the discharge. We will affirm the District Court’s ruling.

Joining Roth were Fisher and Greenaway. The case was decided without oral argument.

New opinion — Third Circuit rejects appeal by pretrial detainee held in administrative segregation

Steele v. Warden — prisoner civil rights — affirmance — Restrepo

A pre-trial detainee was put into administrative segregation after he was accused of threatening other detainees into using a particular bail-bond provider, and being in segregation delayed the detainee from posting his own bail. The detainee sued, alleging violation of his substantive and procedural due process rights. The district court granted summary judgment to the defendants, and today the Third Circuit affirmed. Most notably, the court held that pretrial detainees have a substantive-due-process liberty interest in exercising his bail option once bail has been set, but ruled that the detainee’s right wasn’t violated here because he was still able to access mail and contact his lawyer.

The court appointed counsel to represent the detainee on appeal and issued the opinion close to a year after oral argument. The opinion is a model of lucidity.

Joining Restrepo were Ambro and Nygaard. Arguing for the detainee was Penn law student William Stewart, while Lori Dvorak of Dvorak & Associates argued for the appellees. The court thanked Stewart and his supervising attorneys from Dechert for handling the case pro bono and for their “excellent advocacy.”

Three big new opinions by Judge Hardiman

In re: Trustees of Conneaut Lake Park — civil — reversal — Hardiman

Pennsylvania law bars insurance companies from paying out fire insurance to a “named insured” if the owner of the property owes back taxes on it. The main purpose of this law, the Third Circuit noted today, is to keep property owners from profiting from arson.

This appeal arose from a fire at a beach club owned by one corporation and operated by another. The operator insured the club against fire damage, there was a fire, and the operator submitted a claim. It emerged that the owner owed taxes on the property; the non-payment happened long before the operator ever entered the picture. But the upshot was that the vast majority of the operator’s insurance payout — hundreds of thousands of dollars — went to various government bodies to pay off the owner’s back taxes, not to cover the fire losses of the operator who paid the policy. Not surprisingly, the operator sued. (The suit was transferred to bankruptcy court when the owner filed for bankruptcy.)

The district court ruled that the operator was entitled to the insurance payout because the PA statute was ambiguous and the legislative intent was to apply it only to insureds who were themselves the tax-delinquent property owners. Today, the Third Circuit reversed, holding that the plain language of the statute required it to be applied to any named insured and rejecting the operator’s argument that the outcome violated the takings clause. The court left the door open for the operator to try to recover money from the owner in the bankruptcy proceedings.

Now, I’m no insurance expert, but I suspect this holding could create a giant mess for Pennsylvania. Does the Third Circuit’s reading of PA law mean that now every would-be tenant in the state needs to research and then monitor their property owner’s property tax payments or face catastrophic loss from denial of fire-insurance proceeds they bought and paid for in perfect good faith? Is that realistic? How many PA tenants don’t even know the identity of their property owner? Do PA tenants need to insist that future property leases require the owners to be and stay current on property taxes as a lease condition? What about current leases? Unless I’m mistaken, the consequences of today’s paean to plain meaning could be broad and profoundly disruptive.

The opinion does not address these concerns, but it defends its holding with a policy argument of its own, warning that the insurer’s “interpretation could incentivize an end run around Section 638 by permitting unscrupulous owners to use the corporate form to collect insurance proceeds without satisfying their delinquent taxes.” Fair point. But, in my view, the problem the court avoids is nothing compared to the problems it creates. If the operator seeks en banc rehearing, I think it deserves a serious look.

Joining Hardiman were Fisher and Greenaway. Arguing counsel were John Mizner for the operator-insured and Arthur Martinucci of Quinn Buseck for the appellants.

 

Cazun v. AG — immigration — affirmance — Rendell

The Third Circuit today affirmed the denial of an asylum applicant’s appeal, upholding the government’s rule that aliens subject to reinstated removal orders are ineligible to apply for asylum. Although the panel was unanimous on the outcome, it divided along ideological lines on the rationale. The majority found the statute ambiguous and applied Chevron deference to the agency’s interpretation, but the concurrence in the judgment found the statute unambiguous and thus that Chevron was inapplicable.

Joining Rendell was McKee; Hardiman concurred in the judgment. Arguing counsel were Keren Zwick of the National Immigrant Justice Center for the asylum applicant and Carmel Morgan for the government.

 

US ex rel. Gerasimos Petratos v. Genentech — civil / qui tam — affirmance — Hardiman

The Third Circuit issued a significant False Claims Act ruling yesterday, affirming on alternative grounds the district court’s dismissal of a pharmaceutical qui tam action.

The appeal arose from a drug company’s marketing of its “multi-billion dollar cancer drug” Avastin; the company’s head healthcare data analyst alleged that the company concealed key information about the drug’s side effects, which resulted in doctors prescribing the drug more often and the government paying out more Medicare claims. The analyst then sued under the False Claims Act.

The district court dismissed the suit on falsity grounds based on its view that the analyst had to prove that how the drug was used had been rejected by the FDA, not by individual doctors. The Third Circuit disagreed, holding that the district court had conflated two different statutory standards. But the Third Circuit affirmed on alternative grounds, holding that the suit failed on materiality grounds under the recent USSC Escobar decision, essentially because the government continued paying out Medicare claims even after the analyst revealed his information. The court concluded, “Petratos’s allegations may be true and his concerns may be well founded—but a False Claims Act suit is not the appropriate way to address them.”

Joining Hardiman were Scirica and Rosenthal SDTX by designation. Arguing counsel were Matthew McCrary of San Francisco for the appellants, Mark Mosier of Covington & Burling for the company, and Weili Shaw for the government.

UPDATE: this post on JDSupra calls Genentech a “gift to qui tam defendants” because it relied on the government’s non-intervention as evidence that the alleged wrong was immaterial. The post asserts that the government chooses to intervene in less than 25 percent of cases, and “No authority has ever suggested … before” that non-intervention suggests immateriality.

New opinions — Third Circuit reverses in an immigration appeal and rejects the government’s jurisdictional challenge in a criminal appeal

Myrie v. AG — immigration — reversal — Ambro

Jarndyce and Jarndyce, I just learned from Wikipedia, is “a fictional court case from the novel Bleak House by Charles Dickens” which “has become a byword for seemingly interminable legal proceedings.”

The Third Circuit invoked that fictional case today in an opinion sending back — for a fifth time — a Panamanian citizen’s challenge to removal. From the start, the man has argued that, if sent back to Panama, gangs there would target him with impunity. This time, the basis for reversal was that the Board of Immigration erroneously reviewed only for clear error his claim that he likely would be tortured with official acquiescence if removed; the Third Circuit held that this was a mixed question of law and fact that the BIA should have instead reviewed de novo. The court also directed the BIA to consider the petitioner’s circumstantial evidence of official acquiescence to torture.

Joining Ambro were Chagares and Fuentes. Arguing counsel were Nathanael Kibler of Tennessee for the petitioner and Erica Miles for the government.

 

US v. Rodriguez — criminal — affirmance — Restrepo

The Third Circuit today affirmed a district’s denial of a motion for a sentencing reduction. The defendant argued that it was substantively unreasonable for the district court to deny his motion for a sentencing reduction based on a change to the Sentencing Guidelines after his sentencing. The most significant aspect of today’s ruling was that the court rejected the government’s argument that it lacked jurisdiction to review the appellate claims like the one raised here, joining three circuits and splitting with one.

Joining Restrepo were Chagares and Roth. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and MDPA AUSA Carlo Marchioli for the government.

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 distributor’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 manufacturer and J. Michael Baggett of McCann Garland for the appellant distributor.

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 Thomas Elliott of Elliott Greenleaf for DRPA [misidentified in the original opinion caption, corrected  4/26/17] 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 Philly.com. 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 Philly.com 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

UPDATE: This panel opinion was vacated when the court granted en banc rehearing.

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.

Sigh.

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 Philly.com 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 PennRecord.com, 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 unindicted 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 NJ.com 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 Philly.com, 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.

Remarkable.

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 PolitickerNJ.com. 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. [Update: oops.]

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.

UPDATE:

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.]