Tag Archives: Circuit splits

Five new opinions, four of them reversals

Five opinions again today! Some long ones, too. “What a pleasure,” and “I’m doomed,” both.

Northeastern Pa. Freethought Society v. County of Lackawanna Transit System—First Amendment—reversal—Hardiman

[Disclosure: I assisted counsel for the atheist group on appeal, mainly by serving as a judge at an oral-argument moot.]

The Third Circuit today held that a county bus system violated the First Amendment by refusing to display an ad that read “Atheists” on the sides of its busses. The bus system barred any ads with religious messages, and the court held that this policy was viewpoint discrimination, splitting with a D.C. Circuit case with a pending certiorari petition. Even if barring speech on religious issues weren’t viewpoint discriminatory, the policy here still would fail as a content-based restriction because the bus system failed to show that its policy was reasonable.

Joining Hardiman was Porter; Cowen dissented, arguing that the bus system’s policy was not viewpoint-discriminatory and was reasonable. Arguing counsel were Molly Tack-Hooper of the Pa. ACLU for the atheist group and Thomas Specht of Marshall Dennehey for the bus system.

 

USA ex rel. Bookwalter v. UPMC—civil / qui tam—reversal—Bibas

The Third Circuit today reversed the dismissal of a suit under the False Claims Act and the Starks Act alleging healthcare fraud. From the introduction:

This appeal revolves around two questions: First, do the relators offer enough facts to plausibly allege that the surgeons’ pay varies with, or takes into account, their referrals? Second, who bears the burden of pleading Stark Act exceptions under the False Claims Act?

It answered the first question yes, and the second the defendants.

(Have I opined already that Judge Bibas’s opinions have the best typography on the court by a country mile?)

Joining Bibas was Fuentes; Ambro concurred in the judgment, arguing that the majority construed the Stark Act too broadly. Both opinions are masterfully written. Arguing counsel were Gregory Simpson of Georgia for the appellants and Jessica Ellsworth of Hogan Lovells for the appellees.

 

Howell v. Superintendent Rockview SCI—habeas corpus—affirmance—Fisher

After an all-white jury convicted a man of felony murder in Pennsylvania’s Allegheny County, the man filed a habeas corpus petition claiming that the county systematically excluded African Americans from the pool of potential jurors. His evidence showed that African Americans were over 10% the jury-eligible population but less than 5% of the jury pool. Today, the Third Circuit affirmed the denial of relief on his fair cross-section claim, on several grounds: his data was unreliable because it was derived from returned jury questionnaires without adequately accounting for unreturned questionnaires, the absolute and relative disparities he showed weren’t big enough, there was no readily identifiable cause for the disparity, the process was facially neutral, the disparity study only covered six months, and the county took various steps purportedly to reduce the disparity. On the bright side for habeas petitioners, the court held that the state court’s ruling had been contrary to and an unreasonable application of federal law under 28 USC § 2254(d)(1).

Judge Porter concurred, noting that he would not have reached the data-reliability point and underscoring that the county’s jury-selection goes beyond what the constitution requires by using motor-vehicle records in addition to voter-registration lists.

Judge Restrepo dissented, arguing that the petitioner’s evidence was strong enough and the Commonwealth had presented no contrary evidence, that the majority opinion “sets forth a new standard of statistical purity that will foreclose nearly all fair-cross-section claims,” and that the majority’s reasoning forecloses relief any time the excluded group constitutes less than 10% of the population: “Such an interpretation simply cannot be an accurate statement of the law.”

Arguing counsel were Loren Stewart of the EDPA federal defenders for the petitioner and Rusheen Pettit of the Allegheny County D.A.’s office for the Commonwealth.

 

Bank of Hope v. Chon—First Amendment—reversal—Bibas

When a bank sued a former executive for embezzlement, the former executive sent letters to shareholders disputing the banks allegations hoping to pressure it to settle. The district court banned the former executive from contacting shareholders, but today the Third Circuit vacated its order on the grounds that it “marshaled no evidence that this restriction on speech was needed to protect the trial’s fairness and integrity” and it failed consider less-restrictive alternatives.

Joining Bibas were Jordan and Matey. Arguing counsel were Stephen Harvey of Steve Harvey Law for the former executive and Michael Yi of New York for the bank.

 

Fed Cetera v. National Credit Services—civil / contract—reversal—Fuentes

A debt collector signed a contract with another company promising to pay the company a finder’s fee if it “consummated” a deal with the government during a set time period. The debt collector signed a contract with government during the time period, but didn’t start work on that contract until after the period was over. The debt collector argued that it didn’t owe the finder’s fee  because the deal wasn’t “consummated” when its deal was signed, only when it began performance. The Third Circuit concluded otherwise.

Joining Fuentes were Krause and Cowen. Arguing counsel were Michael McMcCaney Jr. (formerly?) of Keller & Goggin for the finder and Arthur Fritzinger of Cozen O’Connor for the debt collector.

Two interesting reversals: one on Eleventh Amendment grounds, the other in a prisoner-civil-rights case

This fall I’m fortunate enough to be a lecturer at Penn Law teaching appellate advocacy. (Co-teaching actually, with Pa. Innocence Project legal director and fellow Third Circuit Bar board member Nilam Sanghvi.) Yesterday I was scrambling to prepare last night’s class, so I’m posting about yesterday’s two interesting published decisions the day after.

 

In re: PennEast Pipeline Co.—civil / Eleventh Amendment—reversal—Jordan

The PennEast Pipeline Company plans to build a controversial natural gas pipeline through New Jersey and Pennsylvania. To acquire the land where the pipeline would go, PennEast wants to seize lots of properties through eminent domain, including 42 properties that are owned by the state of New Jersey. The company claimed authority to seize the properties under the Natural Gas Act of 1938, which lets private gas companies use the federal government’s eminent-domain power. New Jersey fought the company’s condemnation actions, asserting Eleventh Amendment state sovereign immunity, but the district court rejected the state’s argument and let the company’s condemnations proceed.

The Third Circuit vacated and remanded, holding that the company’s condemnation suits involving state property were barred by Eleventh Amendment sovereign immunity.  It held that (1) the NGA did not abrogate states’ sovereign immunity and (2) delegating federal eminent-domain power did not delegate federal power to overcome state sovereign immunity. The court recognized that its ruling could disrupt how the natural gas industry has long operated. It explained that gas pipelines “can still proceed” with the government itself doing the condemning of state property, but it acknowledged that new Congressional authorization could be required for this. “In any event, even if the federal government needs a different statutory authorization to condemn property for pipelines, that is an issue for Congress, not a reason to disregard sovereign immunity.”

Joining Jordan were Bibas and Nygaard. Arguing counsel were Jeremy Feigenbaum of the NJ attorney general’s office for the state and James Graziano of Archer & Greiner for the pipeline company.

 

Garrett v. Wexford Health—prisoner civil rights—reversal—Smith

Courts are often criticized for treating cases with wealthy litigants more seriously than cases with poor ones. It’s a fair criticism in my view, but there are exceptions and this case is a glimmering one.

Kareem Garrett was a state prisoner who needed a wheelchair and a walker to get around. After he was transferred to a different prison, the new prison allegedly took away his wheelchair and walker and forbade him from getting assistance from his fellow inmates. Unable to get around, he injured himself falling and wasn’t able to get to the doctor, bathe himself, or get food to eat. So, with no lawyer to help him, Garrett filed a civil rights complaint against officials at the prison, alleging that they denied him needed medical devices, disciplined him for asking for help walking, and laughed when he fell and struggled on the floor.

The corrections office rejected his grievances, concluding that his medical care had been reasonable and no evidence of neglect was found. In district court, Garrett asked for appointment of counsel but was denied. He filed various amendments alleging more factual details and trying to refine his legal claims, with his final amended complaint filed after his release from prison. The district court ultimately dismissed some of his claims for failing to administratively exhaust, and it dismissed the rest for failing to comply with Civil Rule 8’s “short and plain statement” requirement. Undaunted, Garrett appealed.

On appeal, Garrett finally got counsel to represent him pro bono: a Penn Law student supervised by two lawyers at Dechert. (The opinion doesn’t say it, but my understanding is that the decision to seek appointment of pro bono counsel in deserving prisoner appeals is made by the court.) And yesterday, in a 49-page precedential opinion that is thorough, careful, and magnificent, the Third Circuit ruled in Garrett’s favor.

First, the court held that Prisoner Litigation Reform Act’s administrative-exhaustion requirement doesn’t apply to claims filed by former prisoners after their release. So refiling his claims after his release cured any administrative-exhaustion defect, it held, disagreeing with an Eleventh Circuit decision. The court also held that the post-release-filed claims were timely because they related back to the original complaint, acknowledging that this holding conflicted with a recent Tenth Circuit decision.

Second, the court held that the district court abused its discretion by broadly dismissing Garrett’s pro se claims on Rule 8 short-and-plain-statement grounds, underscoring the “even more pronounced” liberal construction courts should apply to pro se pleadings and noting that the defendants’ responses to his claims demonstrate their ability to engage them.

Joining Smith were Chagares and Greenaway Jr. Arguing counsel were Justin Berg (then a Penn Law student, now clerking for an EDPA judge) for the prisoner and, for various defendants, Samuel Foreman of Weber Gallagher, Kemal Mericli of the Pa. attorney general’s office, and Cassidy Neal of Mattis Baum & O’Connor. The opinion expressed the Court’s gratitude to Berg and Stuart Steinberg and Cory Ward of Dechert “for donating their time and talent in accepting this pro bono appointment and for zealously representing Kareem Garrett before our Court.”

 

It’s Judge Ambro Day at the Third Circuit

I posted earlier about the en banc decision issued today in the TSA-tort-liability case, in which the opinion for the court was authored by Judge Ambro. The court issued two panel opinions today too, and both of them were authored by Judge Ambro as well. Three published opinions by one judge issued on the same day? Impressive. Pretty sure this is the first time that’s happened in the five-plus years I’ve been doing the blog.

Verma v. 3001 Castor, Inc.—civil / employment — affirmance —Ambro

The cogent introduction:

A jury in the District Court awarded more than $4.5 million to a class of dancers at the Penthouse Club, an “adult gentleman’s club” in Philadelphia owned and operated by 3001 Castor, Inc., for unpaid minimum wages and unjust enrichment under Pennsylvania law. The Court denied the motion of Castor to set aside the verdict, and it appeals to us. We join our District Court colleague, Judge Brody, in concluding that, as a matter of “economic reality,” the dancers were employees of Castor, not its independent contractors, and we reject Castor’s novel argument that the federal Fair Labor Standards Act (“FLSA”) precludes the class’s claims for unjust enrichment. We also conclude that Castor is not entitled to any credit or offset against the jury award for payments already received by the dancers. We thus affirm across the board and sustain the jury’s verdict.

Joining Ambro were Greenaway and Scirica. Arguing counsel were John Innelli of Philadelphia for the club and Jamisen Etzel of Carlson Lynch for the dancers. So, two men argued this appeal in front of a panel made up of three men: not how it oughtta be.

 

Matheis Jr. v. CSL Plasma—civil / disability—reversal—Ambro

The Third Circuit held that plasma-donation centers are subject to the Americans with Discrimination Act’s bar on unreasonable discrimination by “service establishments,” joining the Tenth Circuit in a split with the Fifth.  The court further held that the district court erred in dismissing an ADA challenge to a center’s bar on plasma donations by anyone who uses a psychiatric service animal.

Joining Ambro were Restrepo and Fisher. Arguing counsel were Zachary Nahass of the CGA law firm for plaintiff, Bruce Douglas of Ogletree Deakins for the center, and John Delacourt of the Plasma Protein Therapeutics Association for amicus.

New opinion — a divided panel splits from a sister circuit on waiver

In re: Asbestos Prods. Liability Litig. (Schroeder) — civil — reversal — Smith

The Third Circuit today held that asbestos-litigation defendants waived their personal-jurisdiction defense and that the district court’s ruling to the contrary was an abuse of discretion. The defendants asserted personal jurisdiction as a defense at the outset, but they implicitly waived the defense by, among other things, asking the court for certain rulings before deciding whether to waive jurisdiction and objecting to transfer to a court with jurisdiction. In so holding, the court expressly split with the Sixth Circuit. Only in asbestos litigation is it not surprising when the opinion ends, ” Barring any additional preliminary matters, these 30-year-old cases should at last proceed to adjudication on the merit.”

Joining Smith was McKee; Fisher dissented, vibrantly. Between the dissent and the circuit split, I suspect there’s a bit of battling ahead before any proceeding to adjudication actually transpires. Arguing counsel were Louis Bograd of Motley Rice for the plaintiffs and Harold Henderson of Thompson Hine for the defendants.

New opinion

Kamal v. J. Crew — civil — reversal — Scirica

A federal statute bars retailers from printing more than the last five digits of credit card numbers on receipts. A J. Crew consumer discovered that his receipts included the first six numbers of his credit card, so he sued. The district court dismissed with prejudice for lack of standing due to lack of concrete injury. The Third Circuit affirmed the dismissal under Spokeo and its progeny, joining the majority in a circuit split, but held that it was error to dismiss with prejudice because the district court lacked jurisdiction.

Joining Scirica were Chagares and Rendell. Arguing counsel were Marvin Frank of New York for the consumer and Andrew Bunn, formerly of DLA Piper, for J. Crew.

New opinions — two Speedy Trial Act reversals (!)

U.S. v. Reese — criminal — reversal — Ambro

“This is one of the rare cases in which the Speedy Trial Act … requires that we vacate a conviction and remand for dismissal of the indictment,” begins today’s first opinion.  And “rare” is both true and ironic, because today’s other opinion, issued by a different panel, does the same thing.

Here, with less than three weeks left on the defendant’s Speedy Trial Act clock, the district court continued the trial sua sponte for another two-and-a half months. The Third Circuit held that dismissal was required but left it to the district court to decide first whether re-prosecution would be allowed.

In a concurrence that, unusually, lists two judges as co-authors, Judges Ambro and Greenaway criticized five other circuits’ rulings that defendants can waive Speedy Trial Act claims by failing to seek dismissal on that basis in district court. The concurrence observed that waiver was not an issue here because the government had not raised it its brief or in oral argument.

Joining Ambro were Chagares and Greenaway. Arguing counsel were Jacob Schuman of the EDPA federal defender for the defendant and Michelle Olshefski of the MDPA U.S. Attorney’s office for the government.

 

U.S. v. Williams — criminal — reversal — Restrepo

The Third Circuit reversed on Speedy Trial Act grounds here, too, but in this case the panel directed the district court to dismiss with prejudice, precluding re-prosecution. The court joined three circuits in splitting with the Second Circuit and holding that “periods of unreasonable delay of more than ten days in the transport of a defendant to the site of a psychological examination conducted in the course of a proceeding to determine a defendant’s mental competency are non-excludable” for Speedy Trial Act purposes.

Joining Restrepo were Chagares (who sat on both panels) and Hardiman. Arguing counsel were Omodare Jupiter of the DVI federal defender for the defendant and Everard Potter of the DVI U.S. Attorney’s office for the government.

 

Close Third Circuit followers will note that today’s opinions were posted earlier than normal. The Court’s consistent practice is to post the day’s precedential opinions on its website around 12:35 (with rare late-afternoon postings, too), a couple hours after counsel receive them through ECF, but I stumbled upon today’s opinions around 10:30. I assume this earlier posting was a blip rather than a change in procedure, but we’ll see.

Two new opinions

US v. Island — criminal — affirmance — Scirica

A divided Third Circuit panel today answered a question that also has divided the circuits, holding that a criminal defendant’s term of supervised release is tolled while the defendant is absent from supervision as a fugitive. The majority reasoned that the relevant statutory text was silent on the matter and joined the Second, Fourth, and Ninth Circuits against the First.

Judge Rendell dissented, arguing that the text did answer the question and that the majority’s rule will prove burdensome for courts to apply.

Joining Scirica was Ambro, with Rendell dissenting. Arguing counsel were Keith Donoghue of the EDPA federal defenders for the defendant and Bernadette McKeon of the EDPA USAO for the government.

 

Sköld v. Galderma Labs. — civil — partial reversal — Jordan

The Third Circuit vacated a jury’s verdict in favor of an investor for unjust enrichment in a trademark dispute with a drug company. The investor’s claim was premised on his ownership of the mark, and the court held that the plain terms of the relevant contract gave ownership of the mark to the company. The interpretative issue boiled down to the contract’s use of “hereof and thereof” instead of “hereof or thereof,” and somewhere that contract drafter now feels either euphoric or terrible, depending.  The court also rejected the investor’s claims that he was entitled to directed verdict on other claims.

Joining Jordan was Chagares; Vanaskie had been the third judge on the panel before he retired. Arguing counsel were Bruce Clark of Clark Michie for the investor and Richard Rochford Jr. of New York for the company.

 

New opinion — Third Circuit strikes down Delaware’s requirement that state judges be Democrats or Republicans

Adams v. Governor of Delaware–civil–partial reversal–Fuentes

UPDATE: the Third Circuit vacated this opinion on panel rehearing and issued a new one, link here.

The Delaware Constitution sets out a unique method for selecting state-court judges: the Governor appoints them (based on recommendations from nominating commissions, and without legislative involvement) subject to a requirement that the judges of each court contain a balance of Democrats and Republicans. For example, ” three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.” The goal was to create a bipartisan state judiciary, but one effect was to exclude candidates who aren’t members of either of the two major parties.

A Delaware lawyer who is registered as an Independent challenged the political-affiliation requirement as a violation of his First Amendment rights. The district court denied his challenge, ruling that restricting judgeship eligibility based on political affiliation was allowed because judges qualify as policymakers. Today the Third Circuit reversed, holding that judicial officers, whether appointed or elected, are not policymakers. In so holding, the court split with the Sixth and Seventh Circuits. The court also rejected the governor’s argument that the state’s interest in political balance supports its requirement, holding that even if the interest qualifies as vital the rule is not narrowly tailored to meet it. The court also rejected the Governor’s challenge to standing.

Judge McKee concurred, joined (unusually) by both of the other judges on the panel, emphasizing that the Delaware judiciary is highly regarded and expressing confidence that the state can preserve its esteemed legal culture without the current political-affiliation requirement.

Joining Fuentes were McKee and Restrepo. Arguing counsel were David McBride of Young Conaway for the challenger and David Finger of Finger & Slanina for the governor.

New opinion — Third Circuit revives union member’s 1st Amendment free-association claim [update: never mind]

[Update:  The court removed the opinion from its website. On the docket a clerk’s order was entered, stating, “The Court’s opinion and judgment dated September 19, 2018, having been prematurely filed is hereby VACATED., filed.” Thanks to a helpful reader for alerting me.]

 

Palardy v. Township of Millburn — civil — partial reversal — Siler CA6 by designation

The Third Circuit today reversed a district court’s grant summary judgment against a police officer who alleged that he was not made police chief due to his union membership. The court joined a circuit minority on the question of whether recent Supreme Court cases limiting speech protections for public employees to matters of public concern also apply to association claims, holding that they do not. Union membership, the court held, is First-Amendment-protected conduct.

Joining Siler were Ambro and Scirica. Arguing counsel were Dennis Durkin of Roseland, NJ, for the former police officer and Littie Rau of Ruderman Horn for the township.

Three new opinions [updated]

Update: on October 30 the panel granted the Commonwealth’s petition for panel rehearing and vacated the original opinion, with a new opinion and judgment to come.

Workman v. Superintendent — habeas corpus — reversal — Fuentes

The Third Circuit today ruled in favor of a habeas corpus petitioner, holding that his trial counsel was ineffective for failing almost entirely to mount a defense and that post-conviction counsel’s ineffectiveness excused default of that issue under Martinez v. Ryan. Notably, the court held that the petitioner did not need to prove prejudice from his counsel’s error because, under United States v. Cronic, prejudice was presumed due to counsel’s near-total failure to contest the prosecution’s case.

[Disclosure: I provided minor consulting assistance to counsel for the petitioner.]

Joining Fuentes were Ambro and Restrepo. Arguing counsel were Marshall Dayan of the WDPA defender for the petitioner and Catherine Kiefer of the Philadelphia DA’s office for the Commonwealth.

 

US v. Renteria — criminal — affirmance — Fuentes

The Third Circuit today split with the Second Circuit in holding that venue for a conspiracy conviction does not require proof that it was reasonably foreseeable that conduct in furtherance of the conspiracy would occur in the venue district, affirming a defendant’s conviction and sentence.

[Disclosure: I assisted counsel for the defendant by being a judge for her oral argument moot.]

Joining Fuentes were Greenaway and Rendell. Arguing counsel were Susan Lin of Kairys Rudovsky for the defendant and Bernadette McKeon of the EDPA U.S. Attorney’s office for the government.

 

 

Trinity Industries v. Greenlease Holding Co. — civil — partial reversal — Jordan

One company built railcars at a particular site for over 75 years, then another company bought the site and built railcars there for another 14 years. A state investigation of the site revealed illegal waste dumping on the site, resulting in a criminal prosecution and almost $9 million in clean-up costs. The two companies disputed how the clean-up costs should be allocated between them under CERCLA and an analogous state law. The district court allocated 62% of the clean-up cost to the first company; today, the Third Circuit vacated and remanded, holding that the district court’s allocation methodology was speculative because it materially deviated from the second company’s expert’s allocation methodology.

Joining Jordan were Chagares and Hardiman. Arguing counsel were Steven Baicker-McKee of Babst Calland for the first company and Paul Steinman of Eckert Seamans for the second.

Four new opinions [updated]

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

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

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

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

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

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

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

 

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

Here is the first paragraph of today’s opinion:

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

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

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

 

US v. Johnson — criminal — affirmance — Fisher

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

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

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

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

US v. Green — criminal — affirmance — Chagares

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

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

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

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

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

Ricketts v. AG — immigration — dismissal — Jordan

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

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

New opinions — three affirmances

Bonilla v. Sessions — immigration — affirmance — Shwartz

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

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

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

 

US v. Foster — criminal — affirmance — Jordan

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

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

 

US v. Shaw — criminal — affirmance — Restrepo

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

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

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

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

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

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

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

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

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

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

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

New opinion — en banc Third Circuit rejects FDCPA discovery rule

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

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

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

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

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

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

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

Two new opinions, both authored by district judges

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

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

The allegations could make a cynic of you:

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

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

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

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

 

Garza v. Citigroup — civil — affirmance — Conti WDPA

The lucid introduction:

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

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

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

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

Two new opinions — false claims and immigration

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

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

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

 

Williams v. AG — immigration — affirmance — Smith

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

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

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

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

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

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

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

Two new opinions

US v. Graves — criminal — affirmance — Roth

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

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

 

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

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

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

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

US v. Ley — criminal sentencing — reversal — Fisher

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

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

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

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

 

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

Hayes v. Harvey — housing — affirmance — Fisher

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

Judge Greenaway’s dissent is blistering. It begins:

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

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

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

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

 

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

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

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

 

In re: Bressman — bankruptcy — affirmance — Roth

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

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

 

 

 

4 new opinions, including two immigration reversals

Uddin v. AG — immigration — reversal — Rendell

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

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

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

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

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

 

Mateo v. AG — immigration — reversal — Vanaskie

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

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

 

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

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

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

 

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

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

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

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

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

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

New opinions — Third Circuit reverses in an immigration appeal and rejects the government’s jurisdictional challenge in a criminal appeal

Myrie v. AG — immigration — reversal — Ambro

Jarndyce and Jarndyce, I just learned from Wikipedia, is “a fictional court case from the novel Bleak House by Charles Dickens” which “has become a byword for seemingly interminable legal proceedings.”

The Third Circuit invoked that fictional case today in an opinion sending back — for a fifth time — a Panamanian citizen’s challenge to removal. From the start, the man has argued that, if sent back to Panama, gangs there would target him with impunity. This time, the basis for reversal was that the Board of Immigration erroneously reviewed only for clear error his claim that he likely would be tortured with official acquiescence if removed; the Third Circuit held that this was a mixed question of law and fact that the BIA should have instead reviewed de novo. The court also directed the BIA to consider the petitioner’s circumstantial evidence of official acquiescence to torture.

Joining Ambro were Chagares and Fuentes. Arguing counsel were Nathanael Kibler of Tennessee for the petitioner and Erica Miles for the government.

 

US v. Rodriguez — criminal — affirmance — Restrepo

The Third Circuit today affirmed a district’s denial of a motion for a sentencing reduction. The defendant argued that it was substantively unreasonable for the district court to deny his motion for a sentencing reduction based on a change to the Sentencing Guidelines after his sentencing. The most significant aspect of today’s ruling was that the court rejected the government’s argument that it lacked jurisdiction to review the appellate claims like the one raised here, joining three circuits and splitting with one.

Joining Restrepo were Chagares and Roth. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and MDPA AUSA Carlo Marchioli for the government.

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

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

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

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

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

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

 

US v. Repak — criminal — affirmance — Smith

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

The opinion addressed a flurry of claims:

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

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

New opinions — three civil reversals

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Extraordinary stuff.

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

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

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

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

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

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

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

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

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

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

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

Baptiste v. AG — immigration — reversal — Greenaway

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

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

 

US v. Henderson — criminal — affirmance — Vanaskie

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New opinion — Third Circuit clarifies authentication of social media content

US v. Browne — criminal — affirmance — Krause

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

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

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

 

US v. Carter — criminal — affirmance — Shwartz

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

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

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

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

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

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

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

 

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

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

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

 

US v. Stevenson — criminal — affirmance — Hardiman

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

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

New opinion — a Fourth Amendment reversal

U.S. v. Vasquez-Algarin — criminal / Fourth Am. — reversal — Krause

The Third Circuit today decided an interesting and important search and seizure case today, holding that officers entering a dwelling to arrest someone must at least have probable cause to believe the person is there. The opinion ably explains matters:

Law enforcement officers need both an arrest warrant and a search warrant to apprehend a suspect at what they know to be a third party’s home. If the suspect resides at the address in question, however, officers need only an arrest warrant and a “reason to believe” that the individual is present at the time of their entry. This case sits between these two rules and calls on us to decide their critical point of inflection: how certain must officers be that a suspect resides at and is present at a particular address before forcing entry into a private dwelling?

* * *

We conclude that to satisfy the reasonable belief standard law enforcement required, but lacked, probable cause. The officers’ entry was therefore unconstitutional and, because the good-faith exception to the exclusionary rule is inapplicable here, the evidence seized from Vasquez-Algarin’s apartment should have been suppressed.

The court joined four other circuits in interpreting reasonable belief as at least functionally equal to probable cause, splitting sharply with the D.C. Circuit and less sharply with two others.

Joining Krause were Fuentes and Roth. Arguing counsel were Frederick Ulrich of the MDPA Federal Public Defender for the defendant and Daryl Bloom for the government.