Category Archives: Uncategorized

New opinion — Third Circuit upholds rejection of Wellbutrin antitrust claims

In re: Wellbutrin XL Antitrust Litig. — civil — affirmance — Jordan

Today, the Third Circuit upheld a district court’s grant of summary judgment against plaintiffs who alleged that a pharmaceutical giant GlaxoSmithKline violated antitrust law in two ways:

First, the Appellants claim that GSK delayed the launch of generic versions of Wellbutrin XL by supporting baseless patent infringement suits and a baseless FDA Citizen Petition aimed at generic drug companies. Second, they claim that GSK delayed the launch of those generic drugs by entering into an unlawful reverse payment settlement agreement with its potential competitors.

In a lengthy and record-intensive opinion, the court held for GSK on both points.

Joining Jordan were Vanaskie and Nygaard. Arguing counsel were former Third Circuit clerk Peter St. Phillip Jr. of New York for one group of appellants; David Sorensen of Berger & Mongague and Thomas Sobol of Massachusetts for another group of appellants; and Leslie John and Stephen Kastenberg of Ballard Spahr for GSK.

“Federal Appellate Court Judge seeks a recent law school graduate as a full-time temporary law clerk …. for three weeks starting August 28”

The Third Circuit website today posted an interesting vacancy announcement. A Philadelphia-based Third Circuit judge is hiring a law clerk for three weeks, starting the end of this month, with the chance to apply for a permanent spot.

Says the announcement:

The incumbent conducts legal research, prepares legal memoranda, helps prepare the judge for oral argument, coordinates and helps train interns, and assists in the drafting of orders and opinions in both civil and criminal cases. In addition, the incumbent handles the filing of orders and opinions, interfaces with the public, other court units, and other chambers as needed, coordinates the judge’s scheduling and travel, and oversees the day-to-day operations of chambers. This position is located in the judge’s chambers and reports directly to the judge.

Sounds like an amazing three weeks. Does my 16 years since graduating law school qualify me as “recent”?

Judicial Conference releases proposed appellate rules changes

The Judicial Conference today announced proposed amendments to the federal rules. Among the proposed changes are a handful of small-bore changes to the appellate rules, namely:

  • new disclosure-statement requirements for the government in some criminal appeals and for debtors in some bankruptcy appeals, and
  • an end to the requirement for mailing paper copies of notices of appeal by district clerks and tax-case appellants.

A memo explaining the changes, authored by appellate rules advisory committee chair Judge Chagares, is here.

Written comments on the proposed changes are due by Feb. 15, 2018, and can be filed here. Or if you’re really fired up you can testify at a public rules committee hearing.

Judges extend eyewitness-identification task force

The Third Circuit’s task force on eyewitness identifications will continue its work beyond its original deadline. The task force was due to terminate tomorrow under the terms of the original order creating it, but the task force co-chairs — Judge McKee and District Judge Mitchell Goldberg — had the authority to extend it. Per an order signed by Judge D. Brooks Smith and posted today on the Third Circuit website, the task force “shall continue to function until such date as it prepares and releases a Final Report and the co-chairs agree that the work of the Task Force is completed.”

Stephanos Bibas reportedly will be nominated for Third Circuit (updated)

The Washington Times reports that President Donald Trump today intends to nominate Stephanos Bibas for a Third Circuit judgeship. [My original post inaccurate stated that Trump reportedly nominated Bibas today.]

When Orin Kerr mentioned Bibas on Twitter as a potential Trump Third Circuit nominee, I thought, “not likely,” thereby demonstrating, once again, that I am no Trump mind reader.

More later.

UPDATE: early reaction from Orin Kerr on Volokh Conspiracy here and from Carrie Severino on National Review here. Severino gives Bibas’s age as “50 (approximate).” [UPDATE 3: actually Bibas is 47.]

UPDATE 2: The White House has confirmed that Trump today “announced his intent to nominate” Bibas.

New opinions — Third Circuit orders habeas relief due to ineffective assistance of counsel

Bey v. Superintendent — habeas corpus — reversal — McKee

The Third Circuit today ruled in a prisoner’s favor in a habeas corpus appeal, holding that the prisoner’s trial lawyer was ineffective for failing to object to a faulty jury instruction and that, while this claim was procedurally defaulted, the default was excused under Martinez v. Ryan because his state post-conviction counsel (known as PCRA counsel in Pennsylvania) was ineffective for not raising the issue.

Interestingly, the issue involved eyewitness identifications, the subject of the circuit task force Judge McKee co-chairs. The jury was instructed, without objection, that an eyewitness i.d. “may not be received with caution.”

Joining McKee were Restrepo and Hornak WDPA by designation. Arguing counsel were Michael Wiseman of Swarthmore PA (my former boss, and a force to be reckoned with in criminal and habeas cases) for the prisoner and John Goldsborough of the Philadelphia DA’s office for the commonwealth.

 

New Third Circuit Bar newsletter is out

The April 2017 issue of On Appeal, the newsletter of the Third Circuit Bar Association, is out and available at this link. Two of the highlights:

  • a fond tribute to Judge Leonard Garth by one of his former clerks, Rutgers Law School Dean Ronald Chen, and
  • a useful practice note on argument waiver and interlocutory appeals by former Fisher clerk Patrick Yingling of Reed Smith.

This is the first newsletter since Chip Becker of Kline & Specter began his term as 3CBA president, and this issue also includes a gracious President’s Note by him.

Cases today

The Court issued three published cases today, but I was presenting about the Third Circuit at a training today and I haven’t had a second to read them yet. Looks like three civil appeals, one of them arbitration and the other two employment discrimination. I’ll post summaries tomorrow.

The new Third Circuit Appellate Practice Manual is out, and you need it

The new edition of the Third Circuit Appellate Practice Manual has been released, and I just ordered my copy. If you haven’t already, you should order it too. Owning the APM is not optional if you practice in the Third Circuit and want folks to think you know what you’re doing.

Here is a link to the third edition’s table of contents. Two things stand out.

First, it covers it all, from whether to appeal to seeking certiorari. The previous edition is seven years old, and the new edition updates everything. It also adds two new chapters, on federal certification of state law questions and amicus briefs.

Second, the roster of authors is simply spectacular. Chief Judge Smith and Judges Scirica, Aldisert, Ambro, and Krause all have contributed. The co-editors are James Martin and Nancy Winkelman. Howard Bashman covers electronic filing. Bruce Merenstein covers who may appeal. Charles Becker and Patricia Dodszuweit handle motions practice. David Rudovsky tackles oral argument. Peter Goldberger covers criminal and habeas appeals. Deena Jo Schneider handles rehearing petitions. You get the idea.

The APM is published by PBI Press and costs $177 shipped, plus tax. It is 720 pages and comes with a searchable thumb drive. PBI will send you automatic updates unless you opt out.

I bought the 2010 second edition back when I started my practice. I keep it next to my desk and use it on every Third Circuit appeal I do, scribbling notes in the margins as I go. Using it over the years, I’ve been struck again and again how much effort all the authors put in to make each chapter indispensable. It’s like having a couple dozen of the best lawyers in the circuit whispering advice in your ear as you do your appeal, only less awkward.

Chief Judge Smith writes in the introduction, “every lawyer who picks up this volume ought to see each chapter as a ‘must read.’ I know I do….” Me too.

 

Circuit bar-status notices will be emailed out next week

The Third Circuit has posted this notice on its website:

Beginning on February 6, 2017, the Third Circuit Court of Appeals will initiate its 2017 campaign to update its attorney rolls pursuant to Rule 17.2 of the Rules of Attorney Disciplinary Enforcement. Counsel who have not entered an appearance or have not updated their contact information within the past 5 calendar years will receive a personalized email. The email will provide a direct link for counsel to confirm or update his or her contact information and to request that active status be maintained or to elect an alternative status.

Please do not delete the email as a failure to respond will result in counsel’s status being changed to inactive. See R.A.D.E. 17.2.

Counsel may access the Attorney Admissions Checker for his or her current status and the date that he or she last entered an appearance. Please refer to the Attorney Admissions page on the Court’s website for additional information and answers to frequently asked questions.

Liberal website: Hardiman is conservative

Dylan Matthews just posted this article on Vox, headlined, “Why some conservatives fear Donald Trump is about to betray them on the Supreme Court.”

The article rehashes (unfounded) conservative fears that Hardiman will prove to be a liberal like Justice Souter, with a few details new to me — Allahpundit? It also regurgitates the suddenly omnipresent Common Space analysis that purports to demonstrate — science! — that Hardiman will be a centrist, essentially because PA’s Senators at the time of his elevation were Republican Arlen Specter and the then-just-elected Democrat Bob Casey. Oy. But in the end Vox concludes that conservatives have little to worry about with Hardiman, which I’m sure will be a great relief to them.

Third Circuit Bar presidency passes from Goldberger to Becker

Since new presidents are on everyone’s mind today, it’s a fitting day to note the change in leadership at the Third Circuit Bar Association.

This month Charles “Chip” Becker became 3CBA president. Becker is a partner at Kline & Specter, leading the firm’s post-trial and appellate litigation work. His father was legendary Third Circuit Judge Edward Becker, and he is a top appellate lawyer in his own right, playing a major role in recent years in litigation arising out of the antipsychotic drug Risperdal and the 2015 Amtrak derailment. One of his first tasks as president will be leading 3CBA’s support of the circuit’s judicial conference in April. Becker is a superb choice for 3CBA president and I look forward to seeing all he accomplishes.

Becker succeeds Peter Goldberger, who led 3CBA as president since 2014. Goldberger is the founder and principal of a three-lawyer firm in Ardmore, PA, focusing on appeals and post-conviction aspects of federal criminal cases nationwide. In 2015 Goldberger added to his extraordinary record of appellate accomplishment by successfully defending in the Third Circuit his post-conviction exoneration of Han Tak Lee. He is the 2015 recipient of the National Association of Criminal Defense Lawyers’ prestigious Robert C. Heeney Memorial Award and 2016 recipient of the Federal Criminal Law Committee for the Eastern District of Pennsylvania Clifford Scott Green Bill of Rights Award. The association has benefited tremendously from his fine leadership as president.

In our polarized age, there aren’t many folks who think the world of both our last US president and our next one. It’s good to remember today that 3CBA has been, and will continue to be, led so well.

New opinion — Third Circuit affirms denial of Rule 11 sanctions

Moeck v. Pleasant Valley School Dist. — civil / sanctions — affirmance — Shwartz

The Third Circuit today affirmed a district court order denying a party’s motion for Rule 11 sanctions. The district court denied the school district’s sanctions motion as meritless and said the factual disputes raised in the sanctions motion should be resolved by summary judgment instead. The district argued that the court failed to analyze the merits, but the Third Circuit explained that no explanation is required when a Rule 11 motion is denied.

In a footnote, the court noted that “Rule 11 motions should conserve rather than misuse judicial resources,” and it also quoted prior authority that the Rule 11 standard is stringent

because sanctions 1) are in derogation of the general American policy of encouraging resort to the courts for peaceful resolution of disputes, 2) tend to spawn satellite litigation counter-productive to efficient disposition of cases, and 3) increase tensions among the litigating bar and between [the] bench and [the] bar.”

I can’t help wondering if these observations were included in this published opinion by a panel that included the current and immediate-past Chief Judges to further a conversation within the court about its recent notable decisions involving attorney sanctions and criticism. The case was submitted just 3 days ago.

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

Is the Third Circuit cracking down on lawyers? A look at the recent flurry of sanctions and criticism

It’s been a rough couple months for lawyers in the Third Circuit.

In June, the court in Roberts v. Ferman upheld a district court’s dismissal of a suit based on counsel’s failure to follow the required procedures for recreating gaps in the record. The published opinion contained harsh language directed at the lawyer, for example suggesting that “counsel should take the time to read” the applicable rule.

In September, the court in Hoffman v. Nordic Naturals [disclosure: I represented the appellant on rehearing] granted a FRAP 38 motion against counsel for damages for a frivolous appeal. The panel denied a motion to vacate the frivolous-appeal order even after six law professors filed an amicus brief arguing that the court’s appeal ruling was incorrect, and the court ordered counsel to pay attorney’s fees of $23,000.

In November, the court in Papp v. Fore-Kast Sales held that an appellee forfeited an alternative grounds for affirmance by raising it in a footnote and incorporating by reference its district court arguments.

And just this week the court in Marino v. Usher upheld a $28,000 sanction against a lawyer for his contact with an unrepresented party, after a different panel in June upheld a three-month suspension of the lawyer’s license for the same conduct.

These four decisions all follow in the wake of the court’s widely discussed 2015 opinion in Lehman Brothers v. Gateway Funding. There the court held that a party forfeited a claim because its lawyer failed to include a relevant transcript in the appellate record, describing the omission as “at best show[ing] a remarkable lack of diligence and at worse indicat[ing] an intent to deceive this Court.”

So what’s all this mean? Are these just normal, isolated rulings, or is something broader going on? Is the Third Circuit taking a harder line? I don’t believe that the judges all sat down one day and agreed to start dropping the hammer on lawyers. But my sense is that the landscape is shifting, so that the court today is less reticent than it used to be about criticizing and punishing lawyers whose work it disapproves of.

As a practical matter, rulings like these will make some non-appellate lawyers think twice about handling Third Circuit appeals on their own. Several of the lawyers who’ve gotten in trouble with the court recently appear to have had minimal prior federal appellate experience. And a couple of them had gotten unwanted media attention in the past for coloring outside the lines, like this and this. Lawyers who aren’t familiar with both the rules and the norms of federal appellate practice can unwittingly make serious mistakes.

As these cases show, the price for those mistakes can be stiff indeed.

 

 

The Great Published Opinion Drought of Late 2016

No published Third Circuit opinions again today. It’s now been two weeks and two days since the last one. What are Third Circuit junkies like us to do??

To tide us all over, here’s the intro to an interesting non-published opinion issued today in Marino v. Usher:

Songwriter Daniel Marino appeals the district court’s grant of summary judgment in favor of the defendants in his copyright infringement suit.1 The district court found that, because Marino had jointly created the song Club Girl, later developed into the derivative work Bad Girl and used by popular musician Usher, Marino’s infringement claims must fail. Marino’s attorney, Francis Malofiy, also appeals the district court’s order imposing sanctions against him in the amount of $28,266.54 for contacting an unrepresented defendant in the copyright suit, in violation of Rule 4.3 of the Pennsylvania Rules of Professional Conduct. For the reasons that follow, we will affirm both orders.

3CBA summarizes the appellate-rules changes

Peter Goldberger, President of the Third Circuit Bar Association, has summarized for 3CBA members the changes to the federal appellate rules that went into effect last week. It’s a tremendously helpful overview, and he’s generously given permission to post it here.

(If there’s a better legal-practice bargain than 3CBA’s $40-a-year dues, I don’t know of it.)

Goldberger writes:

Effective December 1, 2016, two important changes in the Federal Rules of Appellate Procedure went into effect, which I wanted to be sure you knew about.  First, the rule has changed by which the time periods are measured for responding to certain filings by another party.  Second, the word-limits for briefs, motions and some other filings have changed.  In addition, the Third Circuit has recently changed its electronic-filing rule as regards the Appendix to briefs.  Finally, some clerk’s office fees have increased. The details of these changes can be found in recent notices posted at the Court’s official website under the heading “News & Announcements.”  This email provides the highlights:

  1. All of us have grown familiar with the time-counting rule under which 3 days were added to the time otherwise set for responding to a document, such as a brief or motion, that was not hand-delivered to us, whenever by rule or order that time period was to be measured from “service” of that document.  This additional allowance was based on the typical time that it was understood it takes for first-class mail to be delivered. As of December 1, the federal appellate rule is amended (in parallel with changes in the civil and criminal rules) to treat electronically filed documents as if they had been hand-delivered; that is, three days will no longer be added to the time to respond to motions and briefs that are served through the court’s electronic filing system.  Since this effectively shortens the time for responding in many instances, it is important to be aware and plan accordingly.
  1. As of December 1, the allowable length of briefs and certain other documents, as measured by word-count, has been reduced.  Most notably, the permissible length of a principal brief is reduced from 14,000 words to 13,000 words, and for reply briefs from 7000 words to 6500 words.  The allow­able length of a petition for mandamus changes to 7800 words. An amicus brief is limited to ½ of the size of a principal brief. For a motion or response to a motion, the limit is 5200 words (or 20 pages). (This will sometimes be an increase over the previous rule.)  Rehearing petitions will now have a 3900-word limit.  As mentioned, there are other details in the Court’s notice.

Notably, unlike some other Circuits, the Third Circuit has neither opted out of any of the national changes, nor will it alter its existing practice or standards for judicial review of motions to exceed these new and reduced word limits.

The revised limits apply to pending cases, except that where the appellant’s opening brief was filed prior to December 1, the new limits do not apply to the appellee’s brief or appellant’s reply.

  1. The Court has also rescinded the previously-available option (“Option B”) of filing the appendix entirely on paper, and not via ECF.  All appendices must now be filed electronically.
  1. Certain of the Clerk’s fees for services have increased as of 12/1/16. Notably, the list of changes does not include the filing and docketing fees for appeals and petitions.

Most of these changes will be discussed in more detail in the 3CBA’s forthcoming newsletter.  As always, the Board thanks you for your membership and participation in our Association.

Media round-up

Several Third Circuit cases have been in the news lately.

Challengers to the NFL concussion-litigation settlement upheld by the Third Circuit this past spring have asked the Supreme Court to grant certiorari. The case is distributed for the Supreme Court’s December 9 conference. NFLconcussionlitigation.com discusses and links to the amicus filings here. Alison Frankel of Reuters has this interesting report headlined, “SCOTUS hasn’t looked at class action settlement in 17 years. Time to revisit?” Frankel reports that the challengers’ petition slams the Third Circuit ruling as “a blueprint for circumventing Amchem and Ortiz,” and their counsel of record, Supreme Court specialist Deepak Gupta, is quoted saying, “The 3rd Circuit has drifted away from Amchem.”

Another cert petition in the news is the challenge to the Third Circuit’s en banc ruling in the sports-betting case. John Brennan has this helpful summary on his Meadowlands Matters blog at NorthJersey.com. Five states have taken NJ’s side as amicus.

In a case in which I was retained to seek rehearing after I criticized the panel opinion here, Jeannie O’Sullivan has this article on Law360.com reporting that in Hoffman v. Nordic Naturals the court denied rehearing and denied the request to vacate the order granting sanctions against him.

Finally, there has been a fair bit of discussion of In re: Energy Future Holdings Corp, the bankruptcy reversal issued earlier this month.  Coverage and commentary by Wall Street Journal, JDSupraDavis Polk (criticizing), Jones Day (“highly-anticipated ruling”), Law360, and abi.com, among many others.

 

 

 

CA3blog named to 2016 ABA Blawg 100

Blawg 100

 

 

 

 

 

 

 

The ABA announced today that they picked CA3blog for this year’s Blawg 100. The ABA Journal article announcing the winners says the ABA has over 4,000 legal blogs in its directory, so being named to their latest list of 100 is pretty cool. (Mystifying, even.)

A few of the more distinguished honorees this year are Lyle Denniston Law News, Bryan Garner’s LawProseEmpirical Scotus, and Alison Frankel’s On the Case. Oh, and Golf Dispute Resolution, again.

“GM Battles Shippers on Price-Fixing in 3rd Circuit”

The title of this post is the headline of a story by Nick Rummell on Courthousenews.com covering a Third Circuit oral argument that took place in a special Newark seating this morning. According to the article, the appeal arises from a suit brought by automakers alleging price-fixing by international vehicle-transport shippers. The panel was Ambro, Shwartz, and Fuentes.

 

Attorney who lost Third Circuit fight for hard-line anti-immigrant law joins Trump transition team and is mentioned as top AG candidate

The Wilkes Barre Citizens’ Voice has a story today by Kent Jackson headlined, “Attorney with Hazleton ties joins Trump’s transition committee.” It begins:

An attorney who helped Hazleton write and defend its immigration act 10 years ago is now helping Donald Trump with his transition to the presidency.

Kris Kobach, the secretary of state in Kansas, joined the president-elect’s transition committee and has been mentioned as possible nominee for United States Attorney General or director of the Department Homeland Security in the Trump administration.

And it says this about the Third Circuit appeal in Lozano v. City of Hazleton:

The law would have penalized landlords for renting residences to immigrants who lacked legal status to live in the country. Employers also faced sanctions if they hired immigrants who weren’t authorized to work in the United States.

Kobach helped the city revise the law to provide due process to immigrants, landlords and employers and to meet other constitutional standards.

Immigrants living and working in Hazleton challenged the law with assistance from the American Civil Liberties Union and LatinoJustice PRLDEF.

After a trial in U.S. District Court in Scranton, Federal Judge James Munley ruled the law unconstitutional in 2007 and said the federal government, not cities, sets immigration law.

The Third Circuit Court of Appeals in Philadelphia upheld the ruling twice after the U.S. Supreme Court ordered the judges to reconsider the case in view of its decision regarding an immigration law in Arizona.

More news coverage of Kobach as a possible AG is here, with a critical profile on Vice.com here and a critical report on his work in the Third Circuit and elsewhere by Southern Poverty Law Center here.

UPDATE: here is a link to the audio of the hour-plus first oral argument in Lozano. Here is the second (post-Scotus remand), two-hour plus, argument — jump to the 9:30 mark, and it continues here. Kobach goes first both times.

Third Circuit simplifies appendix procedure

The Third Circuit yesterday issued this order eliminating the option of filing an appendix in hard-copy form only (emphasis added):

In order to assist attorneys in adapting to electronic filing, the Clerk’s Order of March 17, 2009 created an alternative option for filing the appendix. Option B permitted the filing of the appendix in paper form only, provided that additional citations to the district court record were used in the brief. It appearing that so few attorneys use Option B that it is no longer necessary, at the direction of the Court the Clerk’s Order of March 17, 2009 is hereby vacated. All attorneys and all pro se litigants who file electronically must file the full appendix in electronic form. Four paper copies of the appendix must be filed with the court. Service by alternate means must be made on all parties who are not CM/ECF Filing Users. L.A.R. 31.1(d) and L.A.R. Misc. 112.4(a). Indigent litigants are referred to L.A.R. 30.2 for motions to proceed on the original record. Attorneys should contact the CM/ECF help desk to resolve problems with electronic filing.

Howard Bashman has posted about the change on How Appealing, agreeing that Option B was rarely used and predicting few will miss it. I agree.

“False witness: US judge tackles mistaken identifications”

The title of this post is the headline of an Associated Press story Sunday by Maryclaire Dale. The subject of the article is the eyewitness-identification task force the Third Circuit established in September, and the wrongful capital conviction that led to it.

Judge McKee, who the article describes as having formed the task force, has this quote:

“Just because they (witnesses) are unequivocal, doesn’t mean they’re right,” said McKee, who just finished a term as chief judge of the 3rd U.S. Circuit Court of Appeals in Philadelphia. “The law has not kept up with the science.”

Third Circuit issues notice on new FRAP word limits

The Third Circuit today posted a notice to counsel on the court’s website addressing the new, shorter word limits for appellate briefs as well as other changes to the Federal Rules of Appellate Procedure.

The notice explains that all briefs filed after December 1 must comply with the new limits, except that appellee and reply briefs (but not motions or other non-brief filings) can use the old limits if the appellant’s brief was filed before December 1. The notice also includes this notable passage (hyperlink added):

The Court has reviewed the standing order of January 9, 2012 which discourages motions to exceed the word limits. The Court has determined that insofar as the order provides for granting a motion for excess words in extraordinary circumstances such as complex multi-party cases or when “the subject matter clearly requires expansion of the word limits” the order is in harmony with the comment to Rule 32 and will remain in force.

The notice also highlights two other key FRAP changes:

  • “Rule 4(a)(4) … clarifies that a motion listed in the Rule that is made after the time allowed by the Civil Rules will not toll the time for appeal,” and
  • “Rule 26(c) … ‘is amended to remove service by electronic means under Rule 25(c)(1)(D) from the modes of service that allow 3 added days to act after being served.'”

The notice states: “The full report and text of the Amendments are posted on the Court’s website. Counsel should read and become familiar with the changes to the Rules.” Sound advice.

Circuit establishes task force on eyewitness identifications

The Third Circuit announced this afternoon that it has created the Third Circuit Task Force on Eyewitness Identifications. The order creating the task force was signed by Chief Judge McKee. The task force will:

make recommendations regarding jury instructions, use of expert
testimony, and other procedures and policies intended to promote reliable practices
for eyewitness identification and to effectively deter unnecessarily suggestive
identification procedures, which raise the risk of a wrongful conviction.

* * *

In order to discharge its responsibilities, the Task Force shall study the
available research pertaining to best practices for criminal investigations and
courtroom procedures, including without limitation: protocols for obtaining
identifications, expert testimony during trial, jury instructions, and any other area
pertaining to eyewitness identifications and testimony that can minimize the risk of
wrongful convictions.

The task force will issue a final report within 9 months, unless extended. The report will then be distributed to the district judges within the circuit.

The task force is comprised of 17 members: 4 CA3 judges (McKee, Smith, Shwartz, Restrepo), 6 district judges, a magistrate judge, a federal defender, a US Attorney, an FBI agent, a state AG, and two academics. McKee and EDPA Judge Goldberg are the co-chairs.

The announcement comes just weeks after the court’s en banc ruling in Dennis v. Secretary, in which the court affirmed habeas relief in a capital case and Chief Judge McKee wrote an extraordinary 54-page concurrence to “underscore the problems inherent in eyewitness testimony.”

UPDATE: the Court posted this press release, too.

I shook my little fist for naught

I’m sorry to report that the Third Circuit this week denied panel and en banc rehearing in Coulston v. Superintendent. Back in June I blogged about the unpublished panel opinion in a long post entitled, “A Friday-morning shaking of my little fist against perceived injustice.” (I actually got so wound up about it after my blog post that I did something I’ve never done before: I wrote poor Mr. Coulston and offered that he could tell the court I was willing to be appointed to do a rehearing petition for him, which he did, to no avail.)

Cert petition? Anyone?

Circuit hiring staff attorneys to start next year

The Third Circuit today posted a hiring announcement on its website to hire four or more term staff attorneys. The term is one or two years (“firm commitment”) starting fall of 2017. Application closing date is October 10.

The announcement describes the positions thus:

In the Third Circuit, approximately thirty attorneys work with a dedicated administrative staff in a highly collegial environment. Term staff attorneys are a vital complement to our established group of supervisory attorneys and career attorneys. Term staff attorneys are hired at various levels of legal experience, and recent law school graduates work alongside and engage with attorneys with prior judicial clerkship or other professional experience. Our office has been a launching point for a wide range of careers nationwide, and many of our former staff attorneys have become leaders in public interest, private sector, and academic settings.

Primary staff attorney duties include:
• Developing expertise in habeas corpus, immigration, civil rights and constitutional law,
appellate jurisdiction, and federal civil and criminal procedure;
• Gaining familiarity with state and territorial laws of the Third Circuit;
• Drafting memoranda, per curiam opinions, and orders for the judges;
• Responding to questions from judges concerning individual cases, as needed; and
• Managing assigned cases.

The former Third Circuit staff attorneys I’ve met (a) are freakishly smart, and (b) have super-duper valuable insight into the court’s workings. These openings certainly will draw top-notch applicants.

What this world needs is more circuit blogs

When I started this blog in 2014, there weren’t any blogs quite like it. There still aren’t. Someone should start another!

When I was scheming about launching a Third Circuit blog, I was inspired by Tom Goldstein‘s Scotusblog. (The name at the top of the page, CA3blog, is a deliberate nod to Scotusblog.) I was inspired by Scotusblog in a few distinct ways:

  • Scotusblog is mind-bendingly good. It helped challenge me to try to make something that super-smart readers (you!) actually wanted to read.
  • I believe Scotusblog (along with Goldstein’s own practice) helped usher in the current era of Supreme Court specialists, and I hoped my blog could help do the same at the circuit level. Federal appellate specialists can do better work, and, well, the prevailing level of practice in the circuit courts has plenty of room to improve.
  • Scotusblog didn’t seem to hurt Goldstein’s career trajectory any, and selfishly I figured a blog might do me some good, too. I was a more-or-less unknown young lawyer, starting a solo practice far from where I went to law school and farther still from the circuit where I’d clerked. Yet here I was, dreaming of building something that no one else was delusional enough to try, a circuit-specialist solo practice. I hoped the blog would inch my delusion closer to reality.

I know I’m not the only one who has goals like that. And while it’s not for me to say whether I’ve made an inch of headway towards any those lofty aims, a few concrete signs of progress already: a cite in a Third Circuit opinion, quotes in the New York Times and Washington Post, and steady readership growth.

So, here’s hoping this blog will help to inspire someone out there to start something similar in another circuit. (Or here! Plenty of room!)

New CA3blog feature: case tags

Regular readers have probably noticed that the past couple weeks some of my new-opinion posts have been less prompt than usual. I’ve been out of the office on vacation, and while my Third Circuit love continued unabated, there were fewer days where I was staring at the circuit’s opinion page at 12:31 p.m., hitting the refresh button over and over.

Anyway, one good thing to come out of the time away was I had a small idea for how to make the blog better: case tags. Case tags are a way to make it easier for readers (and for me) to find different categories of cases I’ve posted about. There are tags for different substantive-law areas: civil, criminal, agency, bankruptcy, habeas, immigration, prisoner rights, tax. There are tags for different case outcomes: reversals, dissents, concurrences etc. And tags for circuit splits, en bancs, major cases, Supreme Court and cert. Plus, for the heck of it, there are tags to keep track of my research posts and posts that got linked on How Appealing.

These new tags show up at the bottom of posts (but only when viewed on a computer browser, not a smartphone or tablet). To pull up other CA3blog posts with the same tag, just click on the tag itself. All the tags are listed in the bar on the right side of the screen, too, also hyperlinked to any tagged posts.

I went back and added tags for all posts since the start of the year. When I get a chance I’ll tag older posts too, but CA3blog now has over 500 posts so that won’t be a small project.

I always welcome input about the blog, so if you have any requests or ideas for how to make it better just post a comment or email me.

 

Nominations are open for the ABA’s annual list of the top 100 (?) legal blogs

I just got an email from the ABA about nominating legal blogs for their Blawg 100 list. Here’s how my thought process went:

  1. Gee, I hope my blog makes the list this year.
  2. Should I ask my readers to vote for my blog? That seems like more self-promotion than I’m comfortable with. (Blech. Ick — “Pubished,” eh?)
  3. Hey, wait, maybe if I mention the awards, but pretend that I’m doing so only to discuss other blogs, I’ll get nominations without looking like a huckster.

Clever, no? (And when my obscure and ranting blog is not chosen, I plan to react quite graciously, like this.)

The ABA publishes an annual list, the Blawg 100, that purports to identify the best* legal blogs.** Except a lot*** of the obvious choices (Scotusblog, How Appealing, etc.) are already on their Blawg 100 Hall of Fame. The ABA deems the Hall its highest blog honor, so the 40 Hall of Famers aren’t eligible for the annual 100 list.****

* A list of the worst would be more fun.

** I hate the cutesy word “blawg.” I’d sooner refer to myself as a nose-picker than as a blawger.

*** Why is Douglas Berman’s Sentencing Law & Policy blog not in the Hall of Fame, or even on the most recent 100 list? Because it doesn’t measure up to Golf Dispute Resolution?

**** This is just as well, since it saves me ranting on about the misogyny of HOFer Simple Justice.

Am I the only one who questions whether there are 140 award-worthy legal blogs? I bet not. (But the time I spend writing my blog cuts into the time I have to read others, so what do I know?) I’ve often mentioned several of my favorites here, especially How Appealing and New Jersey Appellate Law, and I enjoy Noah Feldman‘s column on Bloomberg.

Anyway, this year I’m nominating De Novo: A Virginia Appellate Law Blog. De Novo is authored by Jay O’Keeffe, an appellate and business lawyer in Roanoke. De Novo consistently pulls off a balance I’ve aspired to: it’s filled with useful information and interesting ideas, yet it’s relentlessly readable.

Most of my favorite De Novo posts cover appellate advocacy, like this one entitled Legal Writing Tip: Focus Before Detail, this detailed one on a disastrous Ninth Circuit oral argument, and this one on how to handle the Fourth Circuit’s sinister rule that counsel don’t find out who’s on their panel until the morning of oral argument. (Plus he’s a fellow Butterick fanboy!) The content is terrific, and it’s always presented with clarity, humility, and humor.

Well, I hope you’ve enjoyed this post, which is not at all about nominating my blog for the Blawg 100.

Sheldon Adelson lost an appeal today in the Third Circuit [updated]

Casino magnate and major conservative political donor Sheldon Adelson lost a Third Circuit appeal today in an unpublished opinion. The opinion is here. Adelson (who, ironically, owns the Las Vegas Review-Journal) brought a defamation suit against a reporter for writing an article referring to him as “foul-mouthed.”  Huffington Post coverage of the suit here. The reporter’s defense, the opinion notes drily, is that the statement is “true in substance and fact.” The reporter sought discovery from a third-party of documents involving foul language by Adelson, the district court granted the discovery, and today the Third Circuit affirmed.

Gee whiz.

(Only the nerdiest among you will share my interest in noting that the opinion lists the attorneys in the caption, which is unusual for Third Circuit non-precedential opinions. UPDATE: a diligent reader reminded me that the court lists the attorneys in non-published opinions whenever oral argument was held.)

Third Circuit hiring a clerk’s office court attorney

The Third Circuit posted a new job announcement this morning for a permanent court attorney position in the clerk’s office. I re-post job announcements like this one here partly as a service to the court, but mostly I do it because they give insight into how the court does its work.

The position reports to the chief deputy clerk and “provides legal guidance and direction for the procedural management of the court’s caseload.” Here are court attorney’s duties:

• Drafts Clerk’s procedural orders which facilitate case management.
• Conducts the initial screening of cases.
• Conducts legal research.
• Provides legal memoranda to the court in emergency matters.

The link to apply online is here. The closing date is April 22, so tarry not, my fellow appellate-procedure devotees!

The Third Circuit library is hiring an archivist

The Third Circuit announced this morning that it is hiring an archivist to organize the court’s important collection of historical materials. According to the job announcement, the new archivist’s “primary responsibilities include processing archival collections and digitizing historical court photographs.” It will be a two-year, half-time position.

This is wonderful news. Ever since the Third Circuit Historical Society lapsed into inactivity, there’s been a real need for someone to preserve and organize the circuit’s trove to make it accessible to scholars and the public. This new position will address that need; hopefully this will help jump-start the historical society back to life, too.

Court explains how attorney active/inactive-status will work — important emails going out Friday [updated]

The Third Circuit yesterday posted this announcement on its website to give details on the procedure for the attorney-status framework that the court enacted as part of its revisions to the attorney-discipline rules last July. Under the new framework, any attorney who has not entered her appearance within the last five years (note that the five years runs from the date the attorney entered her appearance, not the date that the case was closed) will be moved to inactive status (and will be ineligible to practice in the Third Circuit until she successfully applies for reactivation) unless she affirmatively elects to remain on active status.

An email will go out on Friday from the court to those attorneys who are admitted to the Third Circuit bar who have not entered their appearance in the last five years. That email will contain a hyperlink that attorneys can use to elect their status.

Check the court’s announcement for all the details.

UPDATED: a careful reader points out that the clerk’s office phone number provided in the announcement is incorrect. The number should be (215) 597-2995.

The great published-opinion drought of 2015

The Third Circuit last issued a published opinion on November 25, two weeks ago today. The court has issued 34 non-published opinions since then. Two weeks is easily the longest the court has gone without publishing an opinion since I started this blog a year and a half ago.

Will today be the day the opinion drought finally ends?

Watch out, Buzzfeed! A little Friday blog navel-gazing.

Hey neat. My blog software tracks the number of visitors to CA3Blog, and last month was a new record:

2015-10-29_1546

It’s been fun watching the number of people reading my blog lately taking off. (And, yes, I’m still cackling about Judge Ambro quoting the blog in an opinion.)

For the stat-heads, I’ll explain that the growth in readers is more obvious when you realize that, before September, the blog’s 3 biggest months were all caused by specific posts getting picked up by How Appealing (Erwin last October, en banc analysis plus Restrepo in March, and publication stats in April). Bashman has way-way-way more readers than I do, so when he links to a post of mine, my visits spike. But the last two months have been different — no How Appealing links, just a steady daily readership that’s more than double what it used to be.

So, welcome to the blog and thanks, fellow CA3 junkies.

Free online legal research in the pipeline, and now

Erik Eckholm had this story in yesterday’s New York Times, headlined “Harvard Law Readies Trove of Decisions for Digital Age.” He wrote:

Now, in a digital-age sacrifice intended to serve grand intentions, the Harvard librarians are slicing off the spines of all but the rarest volumes and feeding some 40 million pages through a high-speed scanner. They are taking this once unthinkable step to create a complete, searchable database of American case law that will be offered free on the Internet, allowing instant retrieval of vital records that usually must be paid for.

Everything is expected to be available by 2017. Intriguing.

Reading this story got me thinking about the online legal research options available already. I have a decent LexisNexis subscription — it’s actually my practice’s single biggest annual cost. But I often use free options instead, mostly for uncompensated research like for this blog.

The main free-legal-research source I use is Google Scholar. If you’ve never used it, it’s worth a look. Overall, I find it good for finding specific cases but not much use for sophisticated legal research. When I created a big Excel spreadsheet of recent en banc cases while researching my en banc analysis post, it was quite handy to be able to include hyperlinks to the cases. The good: broad coverage of published and unpublished cases, easy to limit searches by date and court, and usually includes reporter pagination. The bad: the shephardizing functionality is weak, there’s no way to filter out non-precedential cases, and research is difficult beyond looking for specific words or phrases.

I also sometimes use Villanova Law’s official digital archive of Third Circuit opinions. The search engine is circa 2004 and all you get are the slip ops, but sometimes that’s all you need. (For published cases since I started this blog in April 2014, I just use the blog’s search box, top right, instead.)

I’m also aware of free-for-members options like Casemaker for Pa. Bar members and Fastcase for NJ Bar members, but I don’t use them myself.

Other views? Comments always welcome.

Third Circuit en banc procedure — the basics and beyond

There was lots of national news coverage of yesterday’s en banc rehearing grant in the New Jersey sports-betting case, and just about every story had an error or two. The Washington Post story originally said 10 to 12 judges would participate, then changed it to “at least 12,” and now it says “possibly 12 or more.” But it’s hard to blame reporters for being confused about en banc procedures — even experienced circuit practitioners can get stumped.

So, let’s first hit the basics:

What is en banc rehearing? Federal appeals courts almost always decide cases using three-judge panels. But in very rare instances, the court decides cases en banc. As I’ve noted, in recent years the Third Circuit has done so in roughly 1 out of every 1000 cases it decides. En banc means the entire court decides the case, but figuring out exactly what ‘the entire court’ means can get tricky. So …

Which judges participate in an en banc rehearing? (“Participate” means to vote on which side wins the case (affirm or reverse), not on whether to grant rehearing in the first place.) It’s math:

  • All of the active Third Circuit judges (right now there are 12; senior judges are not active judges)
  • Minus active judges who recuse (in NCAA 3 active judges are not participating)
  • Plus any senior Third Circuit judges who (a) sat on the original panel and (b) elected to participate in the en banc (in NCAA 2 senior judges are participating)

Senior Third Circuit judges who did not sit on the panel are not eligible to participate in the en banc, period. (Several other circuits allow this.) Visiting judges (judges who are not Third Circuit judges) are not eligible to participate in en banc rehearing, period, even if they did sit on the panel, IOP 9.5.3.

If rehearing en banc has been granted, how can you tell which judges are participating? How can you tell if active judges recused, or if senior judges on the panel opted in? The order granting rehearing en banc. It gives a list of judges, and that identifies the judges who are participating in the en banc rehearing of that case as of that date. (After this, subtractions would occur only if a judge leaves the court or belatedly recuses; additions would occur only if a judge joins the court before en banc oral argument).

Which judges get a vote on whether to grant en banc rehearing in the first place? It’s the same as who gets to participate except that no senior judges get to vote, even if they sat on the panel.

 

Okay, so much for the basics. Now, let’s look at some other potential sources of confusion. First, some issues about the vote on whether to grant rehearing:

What if there is a tie about whether to grant rehearing en banc? It takes a majority to grant rehearing, so a tie means rehearing en banc is denied. That in turn means a three-judge panel decides the appeal, so, if there already is a panel opinion, it remains in force.

Is en banc rehearing ever granted before there is a panel ruling? Yes. The court can grant rehearing en banc any time it wants, and it doesn’t have to wait for a party to ask. In cases where en banc rehearing is granted, it is not unusual in recent years for the Third Circuit to do so before the panel issues any opinion.

Which majority is required to grant rehearing en banc — all active judges, or only participating active judges? If judges recuse, does that reduce the number of votes needed to grant rehearing? Yes. 3d Cir. LAR 35.3 says, “For purposes of determining the majority number necessary to grant a petition for rehearing [see 28 USC 46(d)], all circuit judges currently in regular active service who are not disqualified will be counted.” (IOP 9.5.3 is to the same effect.) That means you only need a majority of non-disqualified judges. (But be aware that a very authoritative secondary source cites R. 35.3 to mean that the Third Circuit will not grant rehearing en banc unless a majority of active judges are not disqualified).

And here are some issues for cases where rehearing en banc has been granted:

If en banc rehearing is granted, what happens to the panel decision? It is vacated when rehearing is granted, so it’s like it never existed. En banc opinions often do not discuss prior panel opinions.

What if there is a tie by the en banc court about whether to affirm or reverse?  An en banc tie leaves the district court’s ruling in place. It does not reinstate the panel opinion. It’s like the appeal never happened.

If a judge takes senior status while the en banc case is pending, does s/he still get a vote? Yes. If a judge voted on whether to grant rehearing en banc, that judge gets to participate in the entire rehearing even if s/he goes senior.

If a new judge joins the court while en banc rehearing is pending, does the judge get a vote? If this situation is addressed by the rules, I can’t find it, which is odd. This is a timely question, since it is very likely that Judge Restrepo will join the Court before either Chavez or NCAA are submitted, and possible he’ll be confirmed before Dennis or Langbord are decided (they were argued yesterday). I’ll update this answer if I’m able to find out more. Any commenter insight?

UPDATE: At least since 2010, new CA3 judges always participate in en banc cases if they are commissioned before the en banc oral argument (like Shwartz in Rojas and Caraballo-Rodriguez), but never if they are commissioned after oral argument (like Krause in Katzin and Flores-Mejia, like Shwartz in Quinn and Morrow, and like Vanaskie and Greenaway in Rigas and Puleo). So it’s a good bet that Restrepo will participate in Chavez (set for argument in February) and NCAA.

If all this makes your head spin, just be glad we’re not wading back into the recent thorny questions about how to tell the difference between an en banc plurality vs. a majority and whether it matters.

 

A juvenile strip-search postscript

Yesterday, as I posted here, the Third Circuit sided with a juvenile detention center that was sued for its practice of strip searching children.

Today in the news is this disturbing story from Texas about a 14 year-old boy named Ahmed. Ahmed made a homemade clock and brought it to school, but found himself arrested when the principal suspected his clock was a bomb, “despite the fact that the ninth grader repeatedly told both teachers and the police that his project was not, in fact, a weapon.” In a photo of him in handcuffs, you can see him wearing a NASA t-shirt, bless his nerdy little heart. As he later described, “I was taken to a juvenile detention center, where they searched me, they took fingerprints and mug shots of me, and they searched me until my parents came and I got to leave the building.”

I have no idea whether that Texas detention center has the same strip-search policy as the Lancaster County center. But imagining that boy, and all the other boys and girls like him, being strip searched, bend-over-and-cough, makes me sad.

ECF problems for Windows 10 users, and solutions

Howard Bashman posted this at How Appealing last night:

Is the current method of federal appellate electronic filing becoming technologically obsolete? Whenever I try to discuss technology at the level required by this post, I quickly reveal my own ignorance. With that disclosure out of the way, let me sound a warning for those who may someday soon attempt their first federal appellate electronic filing after having upgraded to Windows 10.

The federal appellate CM/ECF electronic filing system requires a web browser with Java installed to operate. Microsoft’s new Windows 10 browser, known as Edge, does not support Java. And Google Chrome also recently stopped supporting Java. That does still leave the option of using the Firefox browser, which is what I used to e-file the Reply Brief that I filed today in the U.S. Court of Appeals for the Third Circuit. But that was after more than a few anxious moments wondering why none of the previous ways that I had accomplished federal appellate e-filings in the past was working.

Before the Windows 10 upgrade, I had used Internet Explorer to accomplish my CM/ECF federal appellate filings, which was one of the rare times that I would use that web browser. Microsoft Edge purports to allow the user to open a web page in Internet Explorer, but that option did not allow me to launch the CM/ECF application earlier today on my desktop computer running Windows 10.

If readers have encountered these or other recent difficulties with federal appellate e-filing, or have discovered solutions that haven’t yet occurred to me, please feel free to send along your experiences via email and I will gladly share points of general interest with this blog’s readers.

I confirm that Howard’s solution — using the Firefox browser — still works for CA3 ECF filing. If you don’t have Firefox, you can download it free from this link. Problem solved.

Also, there is a simple work-around that lets you still use Java on Chrome, link here. I used that successfully last week to file a motion when I was away from the office and using a computer that did not have Firefox.

Happy filing!

Update: if you already have Firefox but installing Windows 10 changed your default browser to Edge, directions for changing it back are here.

 

 

Pope grants deadline extensions, sort of

The Pope’s upcoming visit to Philadelphia is bringing the city to a virtual halt, and the Third Circuit is not immune.

The Court has announced that, in light of the papal visit, various filing deadlines that had been set for Sept. 24-28 will be extended automatically. The details are in the court’s announcement.

Also, the Clerk’s office and the help desk will be closed from the 24th through the 28th.

H/T: I missed the announcement on the court website, but happily Bruce Greenberg and his New Jersey Appellate Law blog did not. Edit: also the Third Circuit Bar Association sent an email blast to members immediately after the court’s announcement.

Two interesting links

Howard Bashman’s latest Upon Further Review column in the Legal Intelligencer (free link here) contains a fascinating discussion of video recording of Third Circuit arguments. (That’s a point I mentioned in my circuit website roundup here.) Bashman reports that Chief Judge McKee told him “he was hoping to convince his colleagues on the Third Circuit that the court should join the Ninth Circuit in posting video of its oral arguments online.” I share Howard’s strong support for the idea.

And here is the latest newsletter of the Bar Association for the Third Federal Circuit. As usual it is essential reading for CA3 practitioners and super-fans. It includes an article by Judge Smith discussing circuit cost-reduction efforts, which notes:

[I]n the wake of sequestration, Chief Judge
Theodore A. McKee implemented a fiscal austerity program to be applied to
both the use of space within the court units of the Circuit and the expenditure
of funds that could be re-programmed from facility improvements to personnel.
Quite simply, Chief Judge McKee’s concerns were that the job security of
court staff has priority over any short-term improvements in rented space. Our
Circuit was the only one in the country to adopt such a policy. And that policy
set the tone for our implementation of the national space reduction goals that
were subsequently mandated by the Judicial Conference.

The latest issue also includes this article, co-authored by Bashman and me, discussing the Lehman Brothers decision, plus an article by me on CA3 en banc practice, adapted from this blog post. I was proud to have the chance to contribute to 3CBA’s fine work.

New standing order for immigration cases

Today the Third Circuit issued a new standing order “to ensure that petitioners in immigration matters are not deported before the Court has an opportunity to act on a motion for stay of removal and to ensure that the Court has a sufficient record on which to decided such a motion.”

The standing order is here.

Under the new standing order, if a party files a facially valid stay of removal (meeting 4 criteria listed in the order), then the Clerk is directed to stay removal until a motions panel has considered the motion.

In June, Chief Judge McKee entered an order directing the government to find and return a mother and daughter who were about to be, or had just been, deported to Guatemala. According to this news account:

Cambria had asked the court to block Ana’s deportation while her latest appeal was pending. In its opposition to that request, the U.S. attorney’s office told the court that, as of June 9, immigration officials had no plans to remove Ana and her daughter. She was then removed 10 days later at 9:55 a.m. Friday morning.

 

New opinion — ERISA attorney-fees reversal

Templin v. Independence Blue Cross — ERISA — reversal — Nygaard

The Third Circuit today reversed a district court denial of attorney fees in an ERISA case, holding that the “catalyst theory” applies and that “some” success was enough to meet it. The court remanded to let the district court apply the right standard.

Joining Nygaard were Ambro and Fuentes. Arguing counsel were Anthony Pauduano for the appellents and Katherine Katchen of Akin Gump and Mark Oberstaedt of Archer & Greiner for the appellees.

FRAP committee proposes shorter briefs and tighter deadlines

I’m pretty sure most of my readers also read Howard Bashman’s How Appealing blog. But just in case anyone missed it, Bashman reports that the FRAP Advisory Committee (CA3 Judge Chagares is a member and Penn Law professor Catherine Struve is the reporter) yesterday approved a proposal to cut primary briefs from 14,000 to 13,000 words and to eliminate the FRAP 26(c) 3-day rule.

He notes that the committee

plans to consider in the very near future whether the 14-day period for filing a reply brief should be extended to 17 or 21 days. In addition, the FRAP Advisory Committee intends to send a letter to the chief judges of all the U.S. Courts of Appeals explaining that expanding the time for reply briefs will remain under consideration, and that courts should consider continuing to afford 17 days in which to file reply briefs in the interim.

And he explains:

Four more things must occur before this rule amendment goes into effect. The Standing Committee must approve the amendment. The Judicial Conference of the United States must approve the amendment. The U.S. Supreme Court must sign-off on the amendment. And the U.S. Congress must refrain from vetoing the amendment.

Happy birthday to blog, happy birthday to blog

One year ago today I started CA3blog. It’s been a fun and gratifying year. In its modest little way, the blog has begun to serve a useful role in as a source of circuit news and occasional amusement.

Selfishly, the best thing about the blog for me has been how it brings me in contact with other Third Circuit lawyers and appellate enthusiasts. I hope that continues.

I’m not sure what the future holds for CA3blog. Should I keep posting on every published case? Focus instead on in-depth posts, like my recent published-opinion-stats post? Try to cajole folks I admire into guest-posting? Post about my own CA3 cases? Hunt down recent clerks to get more insider perspective? Close up shop and go back to spending all my time on my real love, appellate lawyering?

My Magic 8-Ball is hazy. I’d be happy to hear what you think, in comments or offline.

Happy birthday, blog, and thanks for reading.

More on published opinions

Professor David Cleveland has posted this follow-up on the Appellate Advocacy Blog to my recent post about the Third Circuit’s low published-opinion numbers.

He writes:

Matthew suggests that judicial vacancy is the the likely reason for the Third Circuit’s recent spike in its unpublished opinion rate to 92.3%. That seems accurate, though the Third has been hovering in the high-80s for a while now. Judicial vacancy may have pushed them up to the low-90s where the high-volume circuits are.

The Third Circuit last year issued the fewest published opinions of any circuit, again

The new AOC statistics are out. They’re a trove for appeals-nerds like me, and I’ll probably have a couple posts about them. First up: a look at the stats for published and unpublished decisions.

The big news? In 2014, for the second year in a row, no circuit issued fewer published opinions than the Third Circuit.

CA3 issued 177 published, signed opinions last year. The next lowest was CA2, with 210. So CA3 isn’t just the lowest, it is the lowest by over 15%. By contrast, there were 3 circuits that published over 500 opinions (CA7, CA8, and CA9). (All the 2014 data I’m using here is from report table B-12, which in prior years was S-3.)

Except for CA3, all the circuits fall into one of two categories: the ones like CA9 with lots of cases and a high unpublished-decision rate, and the ones like DC with fewer cases and a lower unpublished-decisions rate. CA3 is an outlier because it doesn’t have lots of cases relative to other circuits but still has a high unpublished rate.

Here are some numbers.

92.3% of CA3 dispositions were unpublished last year, which is slightly lower than CA4 and CA11 and only a little higher than CA6 and CA9. But these other circuits with high rates of unpublished dispositions all decide more cases. So, for example, even with a higher unpublished-cases rate, CA4 still issued 217 published opinions, 40 more than CA3 did.

Meanwhile, CA3 terminated a total of 2493 cases last year. That was more than five other circuits: DC (634), CA1 (942), CA7 (1902), CA8 (2348), and CA10 (1457). But all of those circuits issued unpublished decisions at far lower rates than CA3’s 92.3%: DC (54.1%), CA1 (64%), CA7 (63.4%), CA8 (75.2%), and CA10 (79.1%). And the other circuits joining CA3 above 90% unpublished all have a lot more cases than CA3’s 2493: CA2 (3111), CA4 (3787), CA5 (5203), CA6 (3460), CA9 (7515), CA11 (3999).

Interesting, no? But what’s the explanation? Is the reason for CA3’s low number of published opinions the judicial emergency?

Maybe. Recall, Sloviter and Scirica both went senior in the summer of 2013; Krause filled Sloviter’s seat last summer, while Scirica’s seat remains open with Restrepo’s nomination stiiiiiill pending. Do the numbers show a sudden drop in published opinions fitting that timeframe? Here:

Year — Number of published signed opinions — percentage unpublished

2009 — 245 — 89.3

2010 — 246 — 89.8

2011 — 214 — 90.9

2012 — 234 — 87.3

2013 — 163 — 93.8

2014 — 177 — 92.3

So CA3 has had low publishing numbers for a while, but things did get more extreme in 2013. And that holds true when you compare CA3 to other circuits: from 2009 to 2012, there were 2 or 3 circuits each year with fewer published opinions. In 2013 and 2014: zero.

So you could make a good case that the Third Circuit’s judicial emergency helps explain its recent low publishing numbers.

Committee re-examining inactive-status proposal

The Circuit posted this terse announcement Monday: “In light of comments already received, the Third Circuit Court of Appeals Attorney Discipline Committee is reexam[in]ing proposed Rule 17.”

Proposed Rule 17 sought to create a new inactive status. It said attorneys who have not appeared in the past five years must file a form to remain active. I welcome the committee’s re-examination of that proposed rule. I don’t see any benefit to justify the added headache for lawyers and the court.

I wonder what this announcement means for the other proposed amendments to the attorney-discipline rules. It was issued the same day as the deadline for public comments.

My original post on the proposed amendments is here.

Renee Edelman is the Circuit’s new CJA case-budgeting attorney

Renee Hurtig Edelman is the Third Circuit’s new case-budgeting attorney.

Case-budgeting attorney is a new position at the Circuit. According to the hiring notice, the case-budget attorney will:

work with Third Circuit committees, district court judges, magistrate judges, and Criminal Justice Act (CJA) panel attorneys to develop budgets and review budgets of criminal mega-cases and death penalty cases. Specifically, in conjunction with counsel and the assigned judge, the Circuit Case Budgeting Attorney will assist in preparation of budgets that address attorney and paralegal time, experts, investigation, and other case costs.

I know Renee, we worked together at the Philly CHU. She’s smart as a whip and has a deep understanding of what it takes to litigate complex cases competently. She’ll be a tremendous asset to the Circuit.

(A valuable tip, fellow CJA lawyers: she is a big Duke basketball fan.)

Welcome to CJA-world, Renee.

Appellate-dork blogger reads new opinion, can’t stop grinning

geek-303166_640

Look, I admit I’m a law nerd. My Tenth Circuit co-clerks took sinister delight in imposing a no-talking-about-the-law-during-lunch rule on me. And I’m fairly sure I’m in the minority when I say how frustrating it is that my fellow habeas-conference attendees don’t want to hash out the interplay between 2254(d)(2) and (e)(1) during the breaks between sessions.

But, still. I can’t be the only one who finds the jousting between Ginsburg, Alito, and Kagan in Yates v. United States today hugely entertaining. Right?

[Update: right. Professor Berman over at Sentencing Law & Policy gushes “Amazing stuff.”]

A bit of backstory on a big 2014 habeas reversal

I went to law school at UNC Chapel Hill, so it pains me a bit to say anything good about Duke. But Duke Law’s appellate litigation clinic represented the winning side in one of last year’s most important habeas corpus cases, Branch v. Sweeney. For anyone who wants to learn more about the law-student team that won Branch, here are two law-school news stories I came across recently, here and here.

Go, Duke!

Circuit proposes changes to attorney-discipline rules

Punishment_of_the_Paddle,_1912

The Third Circuit does not appear to impose attorney discipline often. The court website lists two cases, neither within the past two years. (In a 2012 case, the lawyer had filed 30 CA3 appeals, and 20 of them faced procedural termination due to the lawyer’s failure to meet filing deadlines!)

Discipline may be rare, but it happens, so the court has proposed to amend its Rules of Attorney Disciplinary Enforcement. Bruce Greenberg has cogently summarized the changes at his New Jersey Appellate Law Blog.

The main changes would be:

  • creating an inactive status, which the court imposes either (a) by request, or (b) when the lawyer has not appeared in CA3 in 5 years and has not filed a form asking to remain active;
  • exposing lawyers to CA3 discipline if they have been disciplined by another court — under the current rules, only disbarment or suspension in another court triggers reciprocal discipline; and
  • clarifying that lawyers are not subject to CA3 discipline for administrative suspension in another court caused by, for example, failure to pay annual fees or meet CLE requirements.

Comments on the proposed rules can be filed by mail or email by March 9. Details here.

One thing I would change: the proposed rule has several 10-day deadlines. Back in 2009, FRAP wisely changed most of its 10-day deadlines to 14–the end result is usually the same, with less risk of miscalculation. For the same reason, and to harmonize with FRAP, the court should go to 14-day deadlines here.

 

My comment opposing the proposed FRAP word-limit cut

You’ve probably heard that the rules committee has proposed cutting the FRAP word-limit on briefs from 14,000 to 12,500. The proposal is here. Howard Bashman ably summarizes matters in this column in the Legal Intelligencer. Inspired by Bashman’s How Appealing blog posts, I submitted this comment today:

Brevity is a reflection of good advocacy, not its cause. Under the current limit, the courts are burdened with too many aimless, bloated 14,000-word briefs. Under the proposed limit, they will get aimless, bloated 12,500-word briefs instead. The problem is real, but the solution proposed will miss the mark. I favor the current word limit.

I’m winning the shortest-comment contest for now.

You can view all the comments here. (Mine hasn’t posted yet.) Don’t miss Judge Easterbrook’s and Judge Silberman’s. You can submit a comment of your own by February 17th here.

Famous, the wrong way [updated]

Lawyers all make mistakes, and most of us have made big ones. When it happens to you, will you fight for your client, or yourself?

Today, a vivid reminder from the Supreme Court that choosing wrong just might make you the wrong kinda famous.

The heart of it (record cites omitted, eviscerating alteration in original):

Horwitz and Butts, as they have subsequently acknowledged, failed to meet with Christeson until more than six weeks after his petition was due. There is no evidence that they communicated with their client at all during this time. They finally filed the petition on August 5, 2005—117 days too late. They have since claimed that their failure to meet with their client and timely file his habeas petition resulted from a simple miscalculation of the AEDPA limitations period (and in defending themselves, they may have disclosed privileged client communications). But a legal ethics expert, reviewing counsel’s handling of Christeson’s habeas petition, stated in a report submitted to the District Court: “[I]f this was not abandonment, I am not sure what would be.”

* * *

[I]n their response to the District Court’s order to address the substitution motion, Horwitz and Butts characterized the potential arguments in favor of equitable tolling as “ludicrous,” and asserted that they had “a legal basis and rationale for the [erroneous] calculation of the filing date.”

Thirteen times the Supreme Court’s opinion identifies Horwitz and Butts by name. The case is Christeson v. Roper.

UPDATE: my original post was remiss in failing also to mention the heroes of the tale, New York attorney Joseph Perkovich and Philadelphia attorney Jennifer Merrigan. The opinion makes plain enough their extraordinary work for Christeson (more backstory in this Linda Greenhouse column in the New York Times), even without mentioning that their work was entirely pro bono. Perkovich and Merrigan: the right kinda of famous.

More CA3 staff attorney hiring

Back in September, I noted, the court advertised for two staff attorney positions to start in September 2015. This week, the court advertised additional openings, for 2 or more attorneys to fill current vacancies. As with the prior listings, these are one-year terms:  “limited number of term extensions may be available.” Salary is listed at $74,884 for attorneys with a year of experience. Closing date is January 19.

The notice is here.

En banc error-correction

Regular readers know I’ve been critical of the Third Circuit for denying en banc rehearing of some recent panel decisions I thought wrong. The retroactivity ruling in Reyes was one: “Wrong, and okay with it,” I wrote. The appeal-waiver ruling in Erwin was another: “An ignominious ending to 2014,” said I.

So I read with interest this blog post by Professor Richard Re on Re’s Judicata, lucidly discussing whether correcting obvious panel errors is an appropriate use of en banc rehearing. My recent scolding of the court rested on my view that panel error correction (or at least big error correction) is a core en banc purpose. Re’s post shows why that ain’t necessarily so.

Here’s the nub:

The more interesting issue is whether Judge Thompson is correct that en banc is inappropriate when based on “disagree[ment] with the result reached by the original panel.” At first blush, Judge Thompson seems to be on solid ground. If mere disagreement were enough, that would indeed mean that “nearly every case would attract the full court’s attention.”

But what if a panel decision were obviously wrong–something, one hopes, that is fairly rare? That possibility isn’t ruled out by FRAP 35(a), which speaks only of what is ordinarily appropriate for en banc. Moreover, that approach would have pragmatic appeal. When a panel makes a tough call, the mere possibility or suspicion of error might not justify the costs of sorting through the merits via en banc review. Only major stakes or disuniformity could then provide the extra justification for en banc. But if a panel issued a decision that is wrong on its face, then why not just reverse it en banc? Writing the en banc opinion shouldn’t take too much effort, and the legal system would avoid the normal costs associated with bad precedent. So long as judges can reliably and quickly identify obvious errors, en banc review for obvious error would seem sensible.

If it makes sense to go en banc to correct obvious error, why doesn’t FRAP 35(a) say that? Perhaps because such a rule would introduce an unfortunate element of disrespect into the en banc process. It is unpleasant enough to write a panel decision that gets rejected en banc. It would be all the more unpleasant if a majority of your colleagues expressly do so because they think you really badly missed the boat. This kind of thing isn’t good for collegiality and might even deter courts from going en banc.

Although Re’s blog has been around since May, I only recently found it, thanks, invevitably, to How Appealing. Re is ludicrously accomplished–Harvard, Yale Law, Kavanaugh and Kennedy clerkships, DOJ Honors Program, a UCLA law professor who surely still gets carded when he orders a beer–and the quality of his posts is extraordinary. Here’s another gem for fellow CA3 nerds, discussing the recent en banc ruling in Katzin.

Recommended.

Court (and blog) holiday-schedule info

The Court will be closed on December 26, the day after Christmas, in addition to being closed on the December 25 federal holiday. Filings otherwise due on the 26th now are due on the 29th. Also, litigants filing emergency motions requiring action before the 31st are instructed to leave detailed messages notifying the clerk. Court notice with details here.

Meanwhile, I plan to take a break from blogging until January 5. Will I be able to stay away?

Happy holidays to all.

CA3 practitioner Berry guest-blogging this week at Volokh Conspiracy

Michael Berry, a media-law expert and partner at LSKS in Philadelphia, is guest-blogging on drone law this week at Volokh Conspiracy. First post here, intro post here. Berry is admitted in CA3 and was prevailing counsel in this CA3 published case.

Mike was my law review editor. To this day, I think of him every time I double-check whether I’ve italicized the period in id. Despite that, I’m happy to see him doing so well.

Staff attorney hiring

CA3 today announced it plans to hire at least two staff attorneys to start next year. The announcement sheds some light on the key role staff attorneys play at the court:

Staff attorneys serve the court at large and are essential in furthering the disposition of matters before the Court. In the Third Circuit, the office has approximately twenty attorneys, plus a dedicated support staff. Staff attorneys work in a highly collegial work environment with experienced supervisory attorneys, career attorneys, attorneys with prior judicial clerkship or law firm experience, and recent law school graduates. The office has been a launching point for a wide range of careers nationwide, and many former staff attorneys have become leaders in public interest, private sector, and academic settings.
Primary staff attorney duties include:
•  Developing expertise in habeas corpus, immigration, civil rights and constitutional law,
appellate jurisdiction, and federal civil and criminal procedure;
•  Gaining familiarity with state and territorial laws of the Third Circuit;
•  Drafting memoranda, per curiam opinions, and orders for the judges;
•  Responding to questions from judges concerning individual cases, as needed; and
•  Managing assigned cases.

I had thought staff-attorney positions were all career positions, but no:

[CA3] anticpates hiring two or more staff attorneys to serve one-year terms, from September 2015 through September 2016. A limited number of two year term positions and term extensions may be available.

So some staff-attorney spots are structured like clerkships. Advertised pay for entry-level attorneys is $61,857. Would that it were more.

 

Zephyr Teachout, former CA3 clerk and political rising star

Zephyr Teachout clerked for CA3 wonder-judge Edward Becker. I haven’t made a study of the Most Famous Former Third Circuit Clerks (yet), but I suspect at this moment in time she’s leading the pack. (Update: Or maybe not. In the comments, Peter Goldberger reminds me about “a guy named Sam Alito.”) She’s challenging Andrew Cuomo for the Democratic nomination for Governor of New York. It seemed like a silly idea at first — For Governor? Against Cuomo? Zephyr??? But she’s run an inspired campaign, Cuomo has not, and just this week the New York Times declined to endorse Cuomo. Jaw-dropping.

Zephyr is a friend of mine, and, inevitably, that’s CA3-related too. I interviewed with Becker during her clerkship, we had mutual friends, and we struck up a friendship. After her clerkship ended (my third year in law school) we started a legal non-profit together, along with my law school classmate David Neal, called the Fair Trial Initiative. Embarrassing photo here. After doing amazing work for FTI, she finally left for Vermont and the Howard Dean presidential campaign, and the rest is history. Suffice to say I’ve spent much of the past 3 months sporting a look of stupid incredulity, babbling to anyone who will listen “can you believe this …”

Full disclosure: I contributed some money to Zephyr’s campaign. This isn’t a political blog, and I’m not writing this to try to persuade anyone to support her. But it’s not every day that a CA3 clerk alum becomes a national political sensation, still less someone I know. So silence wouldn’t do.

I wonder what Judge Becker would have said if he were alive to see this. I’m pretty sure it would have been a good story well-told.

Appellate-rule amendments proposed

The Judicial Conference rules committee this week issued proposed changes to various federal rules, including the Federal Rules of Appellate Procedure. A link to the proposed amendments is here, with written comments here sought by February 17, 2015. Bruce Greenberg provides a lucid synopsis here of the changes at his New Jersey Appellate Blog. Howard Bashman also had an uncharacteristically lengthy post about the word-count change Wednesday at How Appealing.

The proposal many lawyers probably care about most is the change to Rule 32 that would cut the word limit for opening briefs about 10%, from 14,000 words to 12,500 words. Personally, I’m not too vexed about that one; I agree with Scalia and Garner that “[t]he power of brevity is not to be underestimated,” so I work hard to write concise briefs and I usually come in well under the limit.

On the other hand, I surely would miss the extra 3 days to file now granted to rules-hounds by Rule 26(c).

I may have more to say on the amendments after I’ve had more time to consider them.

Back to blogging

I was away on vacation last week. Because I’m that nerdy, I’d planned to keep updating the blog while I was gone. But, because I’m that absent-minded, I couldn’t post because I didn’t bring the password. Sorry for the radio silence. I will post on last week’s opinions and update the reversals compilation soon. But first, three new opinions today.

More CA3 defendants get sentences below-Guidelines than within-Guidelines

Less than 36% of criminal defendants sentenced in the Third Circuit are receiving sentences within the range set by the Sentencing Guidelines, according to the most recent data from the US Sentencing Commission. This is much lower than the within-Guideline sentencing rate nationally, which is 48.6%. Only CA2 and CA9 courts sentence within the Guidelines less often than CA3.

Defendants sentenced outside the Guideline range almost always are sentenced below the Guidelines range. Within CA3, less than 2% of defendants received an above-Guidelines sentence.

Digging deeper into the numbers, the biggest single reason CA3 defendants get below-Guidelines sentences is for substantially assisting the prosecution, accounting for 31.2% of all CA3 sentences. That’s the highest circuit rate in the country, by far. The national rate is only 12.8%. In fact, one CA3 district — E.D.Pa. — has the single highest rate of defendants credited for substantial assistance of any district in the country, 43.6%. And DNJ is third at 35.7%. (Why? Are prosecutors more generous about rewarding cooperation? Are they more draconian about punishing non-cooperation?)

On the other hand, very few defendants within CA3 — less than 1% — are benefiting from early disposition programs. That’s far below the national rate of 9.2%, a figure driven mostly by a 28.6% rate in CA9 (including 56.8% in SDCa!) and 17.3% rate in CA10. And EDNY, where CA3-conference-presenter Gleeson sits, has a 10.9% early-disposition-sentence-reduction rate. In the wake of this year’s CA3 circuit conference, I’m hoping use of early disposition in CA3 will rise dramatically.

These stats all come from the US Sentencing Commission’s 2nd quarter Preliminary Quarterly Data Report released earlier this week. H/T Douglas Berman at Sentencing Law and Policy.

New opinion — federal agency jurisdiction

800px-View_of_the_Ewen_Breaker_of_the_Pa._Coal_Co._The_dust_was_so_dense_at_times_as_to_obscure_the_view._This_dust..._-_NARA_-_523378

“View of the Ewen Breaker of the Pa. Coal Co. The dust was so dense at times as to obscure the view. This dust penetrated the utmost recesses of the boy’s lungs. A kind of slave-driver sometimes stands over the boys, prodding or kicking them into obedience. S. Pittston, Pa.” [1911] (Wikimedia Commons public domain)

The Shamokin Filler Company repeatedly violated federal workplace-safety standards that limit breathable coal dust. So it sued, arguing that it should be regulated by OSHA’s less-stringent standards instead of the Federal Mine Safety and Health Administration’s more-stringent ones. In today’s lone published opinion, CA3 denied the company’s petition for review.

The case is Shamokin Filler Co. v. Federal Mine Safety and Health Review Commission. Opinion by Fuentes, joined by McKee and Chagares. Arguing counsel were Adele Abrams for the company and Sara Johnson for the government.

CA3 hears argument in gay-conversion-therapy-ban case

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Hypnosis. Sascha Schneider, 1904 (Wikimedia Commons public domain)

A CA3 panel heard argument yesterday in an appeal challenging New Jersey’s ban on so-called gay-conversion therapy. The case is King v. Governor of NJ, the panel is Smith, Vanaskie, and Sloviter. Argument audio has not been posted yet (it will be here), but coverage of the argument is here.

H/T: Howard Bashman at How Appealing.

Court rejects effort to appeal same-sex marriage ruling

When PA Governor Corbett decided not to appeal a district-court ruling striking down the state’s same-sex-marriage ban, it looked like CA3 would be shut out of the historic legal fight over same-sex-marriage.

But not entirely–yesterday the court got to decide a minor related issue. When the Governor chose not to appeal, a county clerk responsible for issuing marriage licenses sought to intervene to appeal. The district court denied the motion, reasoning that the clerk was bound by his ruling and lacked standing to appeal it.

In a two-sentence order, CA3 summarily affirmed for essentially the reasons given by the district court. The order was signed by Shwartz, with Fuentes and Jordan also on the panel.

Brown v. Board it ain’t. But the clerk reportedly has vowed to seek Supreme Court review, so maybe CA3 will get its chance yet.

What the wanna-be clerks say

I’m a CA3 inside-baseball nerd, so I was excited when I came across a thread on a big law-student message board about CA3 clerkship applying, link here. Alas, so far it’s proven less of a crowd-source info-trove than one could hope. (I had high hopes, because this thread on Scotus clerkships is mighty interesting, H/T David Lat at Above the Law).

Anyway, happy Friday.

An unusual visitor

In April I observed here that visiting judges have been hearing far fewer CA3 cases than in years past. Bucking the trend, visiting judge Jane Restani sat with the court this week, visiting from an Article III court I’d never even heard of: the United States Court of International Trade. (Court page here, wikipedia here). Its mission:

to resolve disputes by:

Providing cost effective, courteous, and timely service to those affected by the judicial process;

Providing independent, consistent, fair, and impartial interpretation and application of the customs and international trade laws; and

Fostering improvements in customs and international trade law and practice and improvements in the administration of justice.

Judge Restani’s poor law clerks probably find themselves climbing a steep learning curve, since  customs courts doesn’t get much experience handling tricky and important capital habeas cases like the one the panel heard yesterday. (Although Judge Restani sounded admirably prepared at argument.)

Ambro and Barry were the other two judges on the panel.

“Several of the figures most central to the region’s mortgage fraud problem cooperated with prosecutors, and got non-prison sentences.”

The Pittsburgh Post-Gazette and Duquesne’s law school recently teamed up to study mortgage-fraud prosecutions in WDPA. The upshot was two articles last weekend, here and here. Two related stories here and here.

Sentencing policy is getting long overdue attention (including at the recent CA3 judicial conference), and NACDL among others is tackling the trial penalty head-on, so this is a timely study.

Core findings:

• Leniency for cooperation was doled out liberally. At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward “substantial assistance” to the investigation. That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.

• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months. By contrast, defendants who pleaded guilty but didn’t provide substantial assistance to prosecutors, got average sentences of three years in prison. Those few who went to trial faced an average of 6½ years behind bars.

• Several of the figures most central to the region’s mortgage fraud problem cooperated with prosecutors, and got non-prison sentences. For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house. Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.

Hat tip: Douglas Berman’s Sentencing Law & Policy, which observes here, “I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.”

New opinions, including 2 without oral argument

Three published opinions today, which goes to show that someone’s been working even as the Judicial Conference wraps up today. Two of them were decided without oral argument, which is unusual.

First is US v. Smith, which, without argument, reversed a restitution order imposed at resentencing on the ground that restitution was outside the scope of the remand. A remand to consider specified sentencing issues does not authorize the sentencing court to revisit other sentencing issues, even if both parties urge the revisiting. The court also affirmed on several other issues. Any published opinions without oral argument are uncommon, and criminal-appeal reversals without argument are rare.

Opinion by Barry, joined by Sloviter and Hardiman. Arguing counsel for Smith was Peter Levin. Three other defendants also were on the appeal  (disclosure: one of the co-defendants was a co-defendant of one of my clients in an unrelated prosecution).

The second opinion today also is a criminal appeal, US v. Harris aka Pickle. Harris pled nolo contendere but sought an offense-level reduction for acceptance of responsibility. The court held that a nolo plea does not automatically bar the reduction, but affirmed denial of the reduction here.

Opinion by McKee, joined by Fisher and Sloviter. Arguing counsel were Joseph Yablonski for the defendant and Jane Dattilo for the government.

Third up is an immigration appeal, Capadan v. Attorney General. This opinion was released back in March as an unpublished opinion; today the court granted the AG’s motion to reissue as a precedential opinion. Unpublished opinions that break new ground do happen, and Capadan is a reminder that the court sometimes will publish if you ask. The court affirmed, holding that a PA conviction for indecent assault is an aggravated felony supporting removability.

Opinion by Rendell, joined by Smith and Hardiman. No oral argument, but counsel were Valerie Burch for Capadan and Christina Martin and Carmel Morgan for the AG.

 

Denial of en banc rehearing in consumer-class-certification appeal

CA3 denied rehearing en banc rehearing Friday in a high-profile case involving products-liability-suit class certification. Ambro, joined by McKee, Rendell, and Fuentes, dissented from the denial. Given CA3’s track record shaping class-action law, I doubt we’ve heard the last of this issue.

The panel opinion is Carrera v. Bayer Corp. The en banc denial and dissent are here. The panel opinion built on a prior CA3 case, Marcus v. BMW. Ambro wrote Marcus, so his dissent here carries special force: “Several amici — including this country’s most recognized expert on procedure, Arthur Miller — warn that Carrera threatens the viability of low-value consumer class action ‘that necessitated Rule 23 in the first instance.'” Ambro  also urges the Rules Committee to take a look.

A blog post about the denial and dissent by Bruce Greenberg of New Jersey Appellate Law blog here. He’s the one who uploaded the rehearing denial; he thinks the dissenters are right. Hat tip also to Howard Bashman’s How Appealing.

“I was ignorant of my own limitations”

Appellate advocacy is hard work. In some ways, the need for effort is obvious. Of course you have to put in the hours on each case learning the facts, researching the law, drafting and editing the briefs; of course you’re more likely to win if you outwork the other side.

But working hard on each case isn’t enough, not nearly. You also have to work hard on the skills of appellate advocacy, especially writing. Most of us don’t, and don’t even see the need. We’re like legal-writing professor Wayne Schiess:

When I was a full-time practicing lawyer, I thought I was a good writer. I believed I was above average within the profession. Now I see that I was quite mediocre, that I was poorly educated about the standards of high-level professional writing, and that I was ignorant of my own limitations.

Bryan Garner is right: “If you think you’re quite good . . . it’s probably a delusion.”

My own journey from self-satisfied to alarmed to improving has been helped along by books. The 3 most helpful to me:

Most such lists would include Strunk & White and Garner’s The Winning Brief. And any good CA3 enthusiast also would recommend Aldisert‘s glorious Winning on Appeal.

Appellate lawyers are professional writers.  Time we acted like it.

My Scotus scorecard missed the shadows

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Photo by Hans / CC0 / Pixabay

Earlier this week I posted about how CA3 has fared lately in the Supreme Court. Nothing fancy, I just looked at CA3 cert-grants and reversal rates and how they compare to other circuits. As I said in my post, I just pulled these stats from Scotusblog, I even said it was “easy.”

Not so fast.

The sort of simple reversal-rate analysis I gave is misleading, argue John Summers and Michael Newman of Hangley Aronchick.* The Supreme Court resolves circuit splits; every time they do, they’re passing judgment on each circuit in the split, not just the one from which cert was granted. Summers & Newman call these ‘shadow decisions.’

To illustrate: imagine a circuit split with CA4 and CA5 on one side, CA9 on the other. Suppose Scotus grants cert from the CA5 case and affirms. Using simple analysis, only CA5 gets scored. Summers and Newman argue that CA4 and CA9 — the shadow-decision circuits — should, too. I agree.

Summers & Newman explained their method and findings on Scotusblog in 2012, here, and on Hangley’s Supreme Court Project page, here. And, of particular interest to me, they had a great short article in Legal Intelligencer in 2011 focusing on CA3, here. Applying their method to the 2005-10 terms, they found that CA3 had the lowest reversal rate of any circuit.

So now I’m eager to figure out how CA3 has done in shadow decisions since the 2010 term. And to find out more about the Hangley Scotus project. Stay tuned.

*  Howard Bashman used the same methodology back in 2006 (Report Card here) to score CA3 in the OT 2005 term. No idea who first had the idea. Summers & Newman are the ones spreading the gospel now.

A word on style & respect

640px-Yamen-Sitzung

This blog is a sort of nerdy serial love-note to the Third Circuit. The last thing I want is to imply disrespect for the Court, so I want to explain one of my style choices.

When I refer to judges here, I generally don’t give titles or first names. So, not “The Honorable Theodore A. McKee, Chief Judge of the United States Court of Appeals for the Third Circuit,” not even “Chief Judge McKee.” Just “McKee.” Here’s why:

  • I refer to judges a lot here. Dropping the titles cuts a lot of clutter.
  • The audience I’m writing for is sophisticated. When I blog, I have in my head readers who know whom I mean when I say Sloviter or Scalia or Posner, and who aren’t scandalized by an inside-baseball tone.
  • It ain’t a brief, it’s a blog.

For similar reasons, I use “the court,” not “the Court.” If my choices seem disrespectful, please know that’s not my intent. If it bugs you (especially if your first name is The Honorable), tell me. I don’t claim to have it all figured out yet.

Stiegler

Joining the CA3-blog party

 

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Party shoes. Espressolia / Pixabay / CC0

 

There are several fine Third Circuit blogs that helped inspire me to join the merriment. Together, we’ll surely fan the flames of CA3-mania to levels heretofore unseen.

So check out, in no particular order:

And, while not limited to CA3, Howard Bashman‘s How Appealing also is essential reading for any CA3 junkie.

The CA3 blogger with the best back-story by far is Findlaw’s Gabriella Khorasanee. She writes, “Began my career as a lawyer [she was a Nigro clerk and a Dewey Ballantine associate] and then decided to pursue my dreams of being a fashion designer. Now come full circle and I’ve taken my experiences as an attorney and fashion blogger, and combined them to be a legal blogger.” Blogging from Sunnyvale, CA, she also does Findlaw’s blogs on CA1, CA2, CA7, CA8, CA10, and CAFed. Which sounds like a lot, but it doesn’t keep her from also editing Mama’s International Secret Society, “a ladies’ online lifestyle magazine covering fashion, accessories, beauty, art, music, events, travel and cuisine and all the things we love.” I don’t know about M.I.S.S., but her CA3 blog is good stuff.

I have no fashion advice to give, but I’m glad to join the CA3-blog party.