The gist of it is that the court has amended the IOPs to clarify the standard the court applies when deciding whether to grant initial en banc hearing — that is, en banc review before any panel decision. New IOP 9.2 states (using language previously in 9.4.2 and 9.5.4) that initial en banc hearing is extraordinary and occurs only when a majority “determines that the case is controlled by a prior decision of the court which should be reconsidered and the case is of such immediate importance that exigent circumstances require initial consideration by the full court.” The announcement states that the purpose of the amendment is “to provide a consistent procedure.”
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.
The en banc Third Circuit today decided a criminal-sentencing issue, and a three-judge panel decided the remaining sentencing issues in the case.
A quick recap of the procedural history may help. In June of last year, a Third Circuit panel reversed in part in a criminal sentencing appeal; Judge Greenaway dissented in part, arguing that the court should have reversed on an additional ground. The court then granted rehearing en banc with argument limited to the issue on which Judge Greenaway had dissented. A link to the oral argument is here, and I briefly discussed one side’s argument here.
Today, the court issued two opinions: an en banc opinion by Judge Greenaway and a panel opinion on the other issues by Judge Shwartz.
US v. Douglas (en banc opinion) — criminal sentencing — reversal — Greenaway
The en banc Third Circuit today held that an airline mechanic with access to restricted airport areas did not hold a position involving professional or managerial discretion under the § 3B1.3 of the US Sentencing Guidelines. The court refined the approach it took to analyzing when to apply that enhancement.
There were 7 judges in the majority, 4 dissenting. (The case was argued in October, so Judge Bibas did not participate.) Joining Greenaway were Smith, McKee, Ambro, Jordan, Krause, and Restrepo. The four dissenters split into two opinions: one by Shwartz joined by Chagares and Vanaskie, the other by Hardiman alone.
Arguing counsel were Arnold Bernard of Pittsburgh for the defendant and MIchael Ivory for the government.
US v. Douglas (panel opinion) — criminal sentencing — reversal in part — Shwartz
The panel issued an opinion that, according to a footnote, “essentially restates the original Panel opinion except for the issue addressed by the Court en banc.” My summary of the prior opinion is here.
The old news: just before the end of the year, the Third Circuit granted en banc rehearing in two cases, Hayes v. Harvey, an important public-housing appeal, and Vooys v. Bentley, a big deal for Virgin Islands litigants.
The new news: the court has now scheduled the Vooys oral argument for February 21 and the Hayes argument for May 16. In Vooys, the court also ordered supplemental briefing and granted amicus curiae the Virgin Islands Bar Association’s motion for leave to participate in the oral argument.
I posted earlier today about the Third Circuit’s order granting rehearing en banc in Hayes v. Harvey. A thoughtful reader has alerted me that the court granted en banc rehearing today in a second case, too.
The case is Vooys v. Bentley, No. 16-3912. The order granting rehearing was issued sua sponte, and it indicates that a majority “determined that the case is controlled by a prior decision of the court which should be reconsidered.”
The “prior decision” appears to be United Industrial ex rel. Bason v. Gov’t Virgin Islands, a 2014 published opinion I discussed and linked to here. Bason held that, although Congress stripped the Third Circuit of its certiorari jurisdiction over Virgin Islands cases in 2012, the court retained cert jurisdiction over cases that were filed in VI courts before 2012.
Both the respondents and an amicus argued that Bason was wrongly decided and conflicted with prior Supreme Court caselaw. (The amicus, the VI Bar Ass’n, argued that Bason misapplied Sinochem to decide an issue without first confirming subject-matter jurisdiction, broadly the same argument I unsuccessfully made last year for rehearing in Hoffman v. Nordic Naturals.)
While nothing is certain, the posture of this order (sua sponte and prior to panel ruling) strongly suggests that overruling of Bason is likely. En banc grants in similar postures resulted in overrulings in Joyce, Rojas, Al-Sharif, and Quinn in recent years.
Today the Third Circuit granted en banc rehearing in Hayes v. Harvey, an important public-housing appeal. [Update: the order granting is now on the circuit website.] A divided panel had ruled in October that public housing residents had no right to remain in their homes despite statutory language that they “may elect to remain.” Judge Fisher authored the panel-majority opinion and was joined by Judge Hardiman; Judge Greenaway dissented. [Full disclosure: I provided some minor rehearing-stage consulting assistance to counsel for the appellants.]
My summary of the (now-vacated) panel opinion is here. I’m feeling clever because I began my post by saying I thought there was a realistic shot at en banc rehearing.
A couple nerdy points:
- I’m unsure whether the court will schedule en banc argument for February or May. It may depend on whether the court believes supplemental briefing is needed. In Lewis, the court granted en banc rehearing on 11/25 and heard argument on 2/19, but this would be a month tighter, so we’ll see.
- The order granting rehearing lists 13 judges (all 12 active judges including Judge Bibas, plus Fisher because he was on the panel), suggesting no recusals. No dissents were noted.
- The rehearing petition was supported by two strong amicus briefs, including one for the city of Philadelphia. I’ve long believed that rehearing petitions are an under-utilized opportunity for effective participation by amici.
Joyce v. Maersk Line — maritime — affirmance — Jordan
The en banc Third Circuit today unanimously overruled a circuit-outlier 1990 maritime case and held that “a union contract freely entered by a seafarer — a contract that includes rates of maintenance, cure, and unearned wages — will not be reviewed piecemeal by courts unless there is evidence of unfairness in the collective bargaining process.”
The court granted en banc rehearing sua sponte, after panel briefing but before panel oral argument. Shortly before the scheduled oral argument, the panel appointed Tulane Law professor Martin Davies as amicus curiae to discuss the case it later overruled. Today’s opinion thanked Davies for his “insightful” brief.
As noted the opinion was unanimous. Arguing counsel were Dennis O’Bryan of Michigan for the seaman and John Walsh of New York for the employer.
Marathon Petroleum v. Secretary of Finance — civil — partial affirmance — Jordan
This case arises from unspent money on gas-station gift cards; Delaware wanted to audit the gas-station companies to seize the unspent money as abandoned property. The gas-station companies sued, asserting that the state escheat law is preempted by federal common law. Today, the Third Circuit held that (1) private parties had standing to assert preemption by federal escheatment law, but (2) the companies’ claim was mostly unripe although dismissal should have been without prejudice. The court rejected on the merits the part of the claim that was ripe.
Joining Jordan were Chagares and Krause. Arguing counsel were Diane Green-Kelly of Reed Smith for the gas-station companies and Steven Rosenthal of Loeb & Loeb for the state.
In re: Zoloft — civil — affirmance — Roth
“This case involves complicated facts, statistical methodology, and competing claims of appropriate standards for assessing causality from observational epidemiological studies. Ultimately, however, the issue is quite clear.” So said the Third Circuit today, affirming a district court’s decision to exclude an expert witness in a high-stakes drug-liability case.
Joining Roth were Chagares and Restrepo. Arguing counsel were former assistant to the Solicitor General David Frederick of Kellogg Hansen for the appellants and Mark Cheffo of Quinn Emanuel for the appellees.
US v. Fattah Jr. — criminal — affirmance — Smith
In this latest chapter in the Chip Fattah saga, the Third Circuit ruled that while an FBI agent’s media disclosures about Fattah were wrongful, Fattah was not entitled to relief.
Joining Smith were Hardiman and Krause. Arguing were Eric Gibson for the government, Fattah for himself, and Ellen Brotman as amicus appointed by the court for Fattah. The court thanked Brotman for her “excellent advocacy” which the court noted she provided on an expedited basis.
Gillette v. Prosper — prisoner civil rights / jurisdiction — dismissal — Hardiman
The Third Circuit dismissed for lack of jurisdiction a prisoner’s interlocutory appeal challenging denial of his request under the PLRA that his case be decided in district court by a three-judge court.
The Third Circuit granted rehearing en banc in US v. Douglas, with oral argument “limited to the application of the enhancement for abuse of position of trust under U.S.S.G. 3B1.3.” My coverage of the now-vacated panel ruling is here — Judge Greenaway had dissented from the panel majority’s holding on this point.
Suarez v. Attorney General — civil / 2nd Amendment
The en banc Third Circuit ruled today that the federal statute criminalizing gun possession by convicted felons violates the Second Amendment as applied to the two challengers here. It’s the court’s most closely divided en banc ruling since Chief Judge McKee became chief.
On the ultimate outcome, the court split 8 to 7 in favor of the challengers. The 8 were Ambro with Smith and Greenaway, plus Hardiman with Fisher, Chagares, Jordan, and Nygaard. The 7 were Fuentes with McKee, Vanaskie, Shwartz, Krause, Restrepo, and Roth.
No one rationale commanded a majority of the court. As Eugene Volokh (whose work is cited repeatedly in today’s opinion) ably explains in a blog post here, Hardiman’s 5 embraced a broader view of the Second Amendment, Ambro’s 3 a narrower one.
It’s a fascinating vote split. The court’s most conservative judges voted together, but the moderate and liberal votes were more surprising, which reinforces a broader trend I flagged last year.
The 8-to-7 vote also invites some interesting what-ifs. Judge Rendell went senior over a year ago, and President Obama’s nomination of Rebecca Haywood has languished for almost six months now. If Rendell or Haywood were active judges today, would the en banc court have split down the middle, leaving no precedential decision? It’s possible.
Volokh writes that if the government asks the Supreme Court to grant certiorari, “it’s likely that the court will agree to hear the case.”
Chavez v. Dole Food — civil — reversal — Fuentes
The en banc Third Circuit today unanimously reversed a district court order dismissing a suit by Central American farmworkers over alleged pesticide exposure. The prior panel opinion had come out the other way, with Nygaard joined by Greenaway in the majority and Fuentes dissenting.
Needless to say, it is unusual to see a unanimous en banc ruling that reaches a different outcome than the panel majority did. So what happened? Two things, both interesting.
First, Greenaway switched sides. He joined Nygaard’s panel opinion in favor of Dole, but today he joins the en banc court ruling against Dole. He did not write separately to explain his switch.
Second, Nygaard did not participate. He wrote the panel opinion, and the order granting en banc rehearing stated he would participate, but the docket shows he did not participate in oral argument and he was not a member of the en banc panel today. Also, Hardiman was listed as participating in the en banc vote but was not on the en banc panel for argument or decision.
So, why did Nygaard and Hardiman not participate? Answer: I don’t know. Neither today’s opinion nor the docket entries say.
This is a case with a lot of blue-chip-corporation parties like Dow Chemical and Shell Oil, and it would not be surprising if some of the judges owned stock in one of them and thus had to recuse. Now, it would be surprising to me if such a conflict went unrecognized until after the en banc ruling. (But as I mentioned recently, during now-Justice Alito’s Scotus confirmation proceedings, then-Chief Judge Scirica said in 2005 that CA3 judges had been listed by mistake on en banc corams many times. That could explain well Hardiman but not Nygaard.)
For Nygaard, no potential financial conflicts jump out at me on a quick glance at his 2012 financial disclosure, the most recent of his posted on judicialwatch. But what matters is what he owned in 2016, not 2012, and that is not publicly available. Bottom line, if he recused after writing the panel opinion, I can’t tell why. (It does not appear to be health-related since, for example, his is sitting on argument panels next week.) In any event, his withdrawal is unusual.
As to Hardiman, he disclosed dividend income from Dow Chemical in his 2012 disclosure, also the most recent disclosure up on Judicialwatch, although that does not necessarily mean he still did at the time of this en banc case.
Anyway, I’ve gotten all sidetracked on the composition of the court here and haven’t said a thing about the substance of the opinion. From the introduction (footnote omitted):
Our resolution of this appeal is therefore threefold. First, we conclude that the Delaware District Court abused its discretion under the first-filed rule by dismissing the plaintiffs’ claims with prejudice. Second, we conclude that the Delaware District Court erred by refusing to transfer the plaintiffs’ claims against Chiquita Brands International to another forum. And third, we conclude that the timeliness dismissals entered by the Louisiana District Court do not create a res judicata bar to the plaintiffs’ Delaware suits. As these cases come to us today, there is a serious possibility that no court will ever reach the merits of the plaintiffs’ claims. More than twenty years after this litigation began, we think that outcome is untenable—both as a matter of basic fairness and pursuant to the legal principles that govern this procedurally complex appeal.
Joining Fuentes were McKee, Ambro, Smith, Fisher, Chagares, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo. Arguing counsel were Jonathan Massey of Massey & Gail for the appellants and Andrea Neuman of Gibson Dunn and Steven Caponi (formerly) of Blank Rome for the appellees.
I posted here about yesterday’s blockbuster capital-habeas en banc ruling in Dennis v. Secretary. Here are a couple thoughts on what Dennis can tell us about the dynamics of the court.
Rendell’s outsized role in en banc cases
Often en banc opinion assignments in the Third Circuit are just based on panel assignments — that is, if an en banc majority member wrote a panel opinion, then that judge normally writes the en banc majority opinion. But in Dennis no judge in the en banc majority was on the original panel, because all three panel members were en banc dissenters. So Chief Judge McKee (the ranking judge in the majority and thus the majority authorship assigner) had more latitude than usual in choosing who to assign the opinion to, and he picked Rendell. I see that as the latest sign of the great esteem in which she is held by her colleagues on the court.
Judge Rendell’s pivotal role in the current court’s en banc cases goes beyond yesterday’s case. The court has decided 4 en banc cases in the past 12 months (Lewis, Langbord, NCAA, and Dennis), and Rendell wrote the majority opinion in 3 of the 4! In the fourth, she wrote the dissent. Of the court’s 22 en banc cases decided since McKee became Chief in 2010, Rendell wrote for the court five times — more than any other judge — and wrote the lead dissent 4 other times — also more than any other judge.
Outlier-panel correction, revisited
In my big en banc-analysis post in May of 2015, I wrote:
Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”
Four en banc cases have been issued since I wrote that, and 3 of the 4 effectively reversed the panel outcome. More interestingly, 2 of them look like what I said is rare, en banc majorities trumping outlier panels:
- In Lewis, a panel majority of two Republican-nominated judges (Fisher with Chagares) issued a conservative ruling* (holding a criminal-trial error harmless). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and three Republican-nominated judges dissenting.
- In Dennis, a panel of three Republican-nominated judges (Fisher with Smith and Chagares) issued a conservative ruling (denying capital habeas relief). The court granted rehearing en banc and issued a liberal ruling, with every Democratic-nominated judge in the majority and four Republican-nominated judges dissenting.
* I’m using “conservative ruling” in these two bullets as shorthand for “ruling whose outcome conservatives traditionally favor.” Same idea with “liberal.”
What happened in Lewis and Dennis bears watching, but I still doubt it’s the new normal. Consider the other two en banc cases decided in the past year:
- Langbord split the court’s Democratic-nominated judges, with four of them in the majority and three dissenting.
- NCAA voting broke down non-ideologically, with liberal and conservative judges all in the majority and only Fuentes and Vanaskie dissenting.
There will never be enough en banc cases to draw robust conclusions from them about the court’s dynamics. The tiny sample size makes it impossible to tell the meaningful trends from the statistical blips.
Still, for appellate nerds, it’s fun to try.
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.
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.
NCAA v. Governor — civil — affirmance — Rendell — en banc
The en banc Third Circuit today rejected New Jersey’s effort to legalize sports betting, holding that the effort violated the Professional and Amateur Sports Protection Act and that PASPA did not violate constitutional anti-commandeering principles. The en banc ruling came out the same way as the earlier panel ruling.
A couple quick observations.
First, New Jersey got pasted. They came into en banc rehearing with reason to be fairly confident about two votes (Fuentes and Vanaskie, the dissenters from Christie I and the Christie II panel), so they needed to pick up another 5 votes for an en banc majority. They picked up zero. Their position was built around business and federalism, but they failed to pick up a single Republican-nominated judge. For New Jersey and for state-sports-gambling advocates, today’s outcome was a disaster.
Second, there was some speculation last month by prominent legal experts (here and here) that the court’s slowness in issuing the opinion gave reason to think New Jersey would win. That speculation proved badly off the mark.
New Jersey reportedly will to petition for Supreme Court review, but one supporter admits it’s a “long shot.” Indeed. [Update: oops.]
Langbord v. US Dept. of the Treasury — civil — affirmance — Hardiman
The en banc Third Circuit ruled that the government was allowed to keep 10 extremely rare and valuable Double Eagle gold coins it seized from the family that had handed them over for authentication. Previously a divided panel (Rendell and McKee with Sloviter dissenting) had ruled for the family. It’s an unusual en banc case in that covers a dizzying list of appellate issues, many of them fact-bound.
The court split 8+1 to 3. Joining Hardiman were Ambro, Fuentes, Smith, Fisher, Chagares, Vanaskie, and Shwartz. Jordan concurred in part and concurred in the judgment, describing the Mint’s strategy of claiming the coins without judicial authorization as “a bad idea.” Rendell with McKee and Krause dissented, criticizing the majority’s reasoning as “at best cryptic and, at worst, sets an incorrect and dangerous precedent that would allow the Government to nullify CAFRA’s provisions at will.”
An interesting and odd case.
Sunday v. AG — immigration — petition denied — Chagares
The Third Circuit held that the Immigration and Nationality Act does not grant the Attorney General authority to grant a waiver of inadmissibility, and it held that removal cannot be unconstitutionally disproportionate punishment because it is not punishment.
Joining Chagares were Fisher and Barry. Arguing counsel were Keith Whitson of Schnader Harrison in Pittsburgh for the petitioner and Andrew Oliveira for the government.
A couple quick updates on the Third Circuit’s en banc rehearing front:
Finally, I’ve got a hunch that draft opinions are circulating already in the Chavez v. Dole Food case argued en banc in February.
Easy to miss among the unpublished opinions issued today was an order denying rehearing en banc in United States v. Kelly. The panel opinion, also unpublished, is here. It was authored by Greenaway and joined by Scirica and Roth.
Here’s the interesting part: four judges (McKee, joined by Ambro, Smith, and Restrepo) dissented from the denial of rehearing. Any dissent from denial of rehearing is quite rare in the Third Circuit. It’s rarer still given that the panel opinion was both unpublished and unanimous, and that none of the dissenters sat on the panel.
The heart of the issue is how jurors are instructed in drug-conspiracy cases, specifically whether those instructions unjustly expose mere purchasers to criminal liability as conspirators. McKee’s opinion explains his basis for dissenting in this introduction:
I appreciate that the panel’s decision in this case was
dictated by circuit precedent and that my colleagues therefore
felt compelled to affirm the jury’s determination that Kelly’s
membership in the Alford drug distribution conspiracy had
been proven beyond a reasonable doubt. However, I take the
unusual step of filing this opinion sur denial of rehearing to
explain why we have made a mistake by not availing
ourselves of this opportunity to reexamine our jury
instructions in drug conspiracies. I do so even though this
appeal has been resolved in a non-precedential opinion
because our current approach to informing jurors how to
distinguish between a purchaser from a drug conspiracy and a
member of that conspiracy is so meaningless that it presents
the illusion of an objective standard while furnishing no
guidance to jurors who must make this crucial distinction.
Our current standard for channeling a jury’s inquiry in
such prosecutions fails to provide a jury with sufficient
guidance to allow jurors to appropriately differentiate
between customers and co-conspirators. Although some of
our factors may be relevant to this inquiry, the irrelevant
factors I discuss below create the very real danger of placing
a thumb on the conspiratorial side of the scale and thereby
tipping the balance in favor of a conviction for conspiracy
when only a buyer-seller relationship has been established.
Because there is no way of knowing how this jury would have
viewed the circumstantial evidence against Kelly if that
additional weight had not been added to the conspiratorial
side of the scale, I believe this case “involves a question of
exceptional importance,” meriting en banc reconsideration.
Fed. R. App. P. 35(a).
He concludes thus:
Given the extent to which illegal drugs and illegal drug
sales continue to devastate and destroy lives and
communities, I have no doubt that we will have another
opportunity to revisit the factors we use in attempting to
distinguish between purchasers and co-conspirators.
Regrettably, in the interim we also will no doubt expose
numerous purchasers of drugs (even those who purchase
merely to “feed” their own addiction) to the exponentially
greater penalties that attach to being a member of a drug
conspiracy. I therefore take this opportunity to express my
concern that we are failing to afford jurors the guidance they
need and that the law requires in deciding whether evidence is
sufficient to establish guilt beyond a reasonable doubt in
cases such as this. Worse yet, the “guidance” that we do give
jurors is not only less than helpful, it is misleading because it
can be an open invitation to convict mere purchasers of illegal
drugs of the far more serious crime of being a member of a
drug conspiracy. Accordingly, I now echo the concern
expressed by Judge Becker a decade and a half ago and
explain why we should avail ourselves of this opportunity and
grant Kelly’s petition for rehearing.
Thirteen judges participated in the en banc rehearing decision, so the dissenters apparently fell three votes short, with five judges appointed by Democratic presidents not dissenting.
(I say “apparently” because nothing requires a judge who voted in favor of rehearing en banc to dissent from the denial. So it’s theoretically possible that one or two judges voted to grant rehearing but declined to join McKee’s dissent or issue their own.)
I had the pleasure of attending this morning’s en banc oral argument in NCAA v. Governor of NJ. The ceremonial courtroom was packed, and even two of the judges who had recused were in the audience. Circuit advocacy (and circuit judging) is not often a big-crowds gig, so it was an entertaining spectacle.
Judge Ambro (presiding due to Chief Judge McKee’s recusal) opened with a heartfelt tribute to Justice Scalia, saying it was “so true” that he was “transformative” and describing him as “perhaps the greatest influential jurist of my generation.”
Here are a few things that surprised me:
- Judge Barry missed participating by video feed due to technical difficulties, but at the last minute she was able to join in by audio;
- Theodore Olson appeared to be reading his opening, word for word. Not just the opening sentence, but the whole first minute or two. (And later he declined to answer a judge’s direct question about what the recent troubles of daily-fantasy-sports betting meant for his position, saying he didn’t want to get into that.)
- Paul Clement, who gave a virtuoso argument, leaned pretty heavily on legislative history. Heresy!
On a more substantive note, I was surprised that some of the court’s more conservative judges were the source of some of Olson’s toughest questions. I figured the court’s right was New Jersey’s best hope for getting towards the seven votes it needed to win, since a vote for New Jersey could be seen as a vote for state power and for business. But Judge Fisher was plainly dubious of Olson’s position, and Judges Hardiman and Jordan peppered him with tough questions, too.
But for all the little surprises, the bottom-line sense I got from today’s argument was not surprising. I came in doubting that New Jersey could find seven votes, and nothing that transpired during the argument reduced my doubt. We won’t know the result until the opinion(s) are issued, but Clement, the sports leagues, and the government have to feel pretty good about today.
The Third Circuit today granted en banc rehearing in Dennis v. Secretary, an important capital habeas case decided by the panel in February. The panel ruled for the state, reversing a district court grant of habeas relief.
Here was my write-up of the panel opinion:
In an important capital habeas corpus opinion, today the court reversed a district court’s grant of relief in a Pennsylvania case.
The unanimous panel reversed the district court’s grant of relief under Brady v. Maryland for the prosecution’s failure to disclose 3 pieces of exculpatory evidence. The panel held that it was not unreasonable for the state court to limit Brady to evidence that was admissible and evidence not obtainable by the defense through reasonable diligence. The court also ruled that it was reasonable to find immaterial an exculpatory police report that impeached a key prosecution eyewitness because that witness was cross-examined about her identification at trial. All three are important holdings on recurring issues, and I expect Dennis to make an impact.
Judge Fisher wrote the opinion, and he was joined by Smith and Chagares. Arguing counsel were Thomas Dolgenos for the Philadelphia DA and Stu Lev of the Philadelphia CHU for the death-row inmate. Lev was joined on the brief by five lawyers from Arnold & Porter plus a lawyer from the federal defender in Nevada.
Given the conservative panel and its aggressive reasoning, I’d bet the farm that the inmate will seek rehearing en banc.
Guess I get to keep the farm.
Can a middle-school student be punished for wearing an “I ♥ boobies” bracelet to school? Can a defendant be prosecuted using evidence from a GPS tracker that police hid on his car without a warrant? Can police take DNA samples from everyone they arrest? These are among the questions that have led the Third Circuit in recent years to rehear cases en banc.
Since Chief Judge McKee became chief in 2010, the Third Circuit has issued 18 en banc rulings (they’re all listed at the bottom of this post). Looking at the court as a whole, a couple things jump out at me:
- 18 cases in about 5 years isn’t many;
- Of the 18 cases, 6 are criminal, 4 education (3 student speech, 1 due process), 2 immigration, 2 bankruptcy (both asbestos-related), 1 habeas, 1 class action, and 2 other civil cases. I expected more civil cases;
- 5 of the 18 rulings were unanimous;
- In at least 5, the court’s decision to go en banc was sua sponte. In at least 6, en banc rehearing was granted before the panel ruled; and
- Of the 6 criminal cases, the government won 5.
Interesting, right? But I wanted to see how much these 18 cases can tell us about the ideology of the court and its judges. En banc cases are an especially useful lens because (most) every active judge votes in every case, so we can compare votes much more directly than we can in panel cases. Can votes in 18 cases tell us anything meaningful about the court or the judges? I’m not sure. But I’ve crunched some numbers so you can decide for yourself what, if anything, it all means.
Here’s what I did. For each case, I classified one side–majority or dissent–as liberal, one as conservative. In my scoring, liberals side with criminal defendants, students, consumers, etc.; conservatives side with prosecutors, corporations, etc. (I omitted a unanimous bankruptcy case, Grossman’s, that I couldn’t classify). Then I tallied the votes to find each judge’s percentage of liberal votes.
But some of the cases seemed more telling ideologically than others. So also I picked out 6 cases from the 17 that presented the clearest ideological divide–cases where it was clearest to me that liberals and conservatives would favor different outcomes –and ran the numbers for those cases separately.
The results? With apologies to my smartphone readers, here is a table with how the judges voted in the 17 cases:
Liberal votes in blue, conservative in red. (Gray means the judge dissented in part, black means the judge wasn’t on the court yet, white means the judge did not sit, presumably due to recusal). The names of the 6 more ideological cases are bolded. Again, links to all these cases are at the bottom of this post.
Overall, the liberal side won 10 times and the conservative side won 7 times.
Now let’s interpret. Here is how I’d characterize the voting records in ideological terms — judges with similar voting records are listed on the same line, from liberal on the left to conservative on the right:
Smith / Fuentes
Greenaway / Ambro
Rendell / Vanaskie / Jordan
Chagares / Fisher / Hardiman
So, for example, the McKee-era en banc votes of Smith and Fuentes are more conservative than McKee and more liberal than Greenaway and Ambro, with Smith’s votes slightly more liberal than Fuentes’s.
Note that I’ve omitted Sloviter, Scirica, Barry, and Shwartz from this analysis. All were active for only part of this period, so their sample sizes were smaller. For what it’s worth, Sloviter’s profile was close to McKee, while Shwartz and Scirica were both close to Ambro.)
So–again, looking purely at votes in this body of cases–I’d describe the Third Circuit’s judges as 1 liberal (McKee), 4 moderates (Smith, Fuentes, Greenaway, Ambro, plus Shwartz so far), and 6 conservatives (Rendell, Vanaskie, Jordan, Fisher, Chagares, Hardiman). Krause has not voted in a decided en banc yet.
A few more thoughts on the ideology data:
- The conservative judges were more predictable than the liberals. Chagares and Hardiman were the only two judges who never disagreed. And in the 6 most ideologically charged cases, 3 judges voted conservative every time, 0 voted liberal every time.
- Smith’s moderately liberal en banc voting record is probably not what George W. expected; Vanaskie’s conservative record is probably not what Obama expected.
- Rendell’s en banc votes do not align with her reputation. By my count, she voted with the conservatives more than half the time; and in the more ideologically charged cases, she voted with the conservatives two-thirds of the time.
- Again, I’m not sure how much stock I put in the ideology analysis here. It’s a fairly small sample size, my choices about which side is liberal or conservative are debatable, and my choices about which cases are more ideological are debatable, too. Circuit judges regularly follow controlling precedent over their own policy preferences. En banc voting patterns may not match panel voting patterns. Bottom line, I think these numbers are interesting and suggestive, but far from definitive.
Anyway, so much for ideology. What does all of this mean for lawyers practicing in this circuit? Here are the conclusions I draw about Third Circuit en banc practice:
- Don’t get your hopes up. The court grants rehearing en banc in about 1 decided case in 1000. Federal Appellate Practice‘s observation applies here: “filing a petition for rehearing is a little like buying a lottery ticket. It most often will prove a waste of time and money. But occasionally–and sometimes unpredictably–it will produce an enormous return.”
- Your best hope for getting en banc rehearing might be to overrule a prior precedent. Of the last 6 CA3 en banc decisions, 4 overruled prior precedent. In 3 of those 4, the overruled precedent had made CA3 an outlier. Two other factors leading to recent en banc overrulings: subsequent CA3 and Supreme Court cases had eroded the precedent, and the precedent caused confusion and uneven results. The opinions provide a valuable roadmap for lawyers looking for effective arguments for en banc rehearing.
- Don’t wait until after the panel has ruled to argue why the precedent should be overruled. Panels lack the power to overrule prior precedent, so you may be tempted to hold your arguments about overruling a case for your rehearing petition. But these cases show that’s a mistake. When the Third Circuit grants rehearing en banc to overrule a prior decision, it usually does so before the panel rules, per 3d Cir. IOP 5.5.4 (requiring internal circulation of all published and split-panel unpublished opinion drafts). Of the 6 cases I see where the court overruled a precedent, rehearing was granted before the panel had ruled in 5; only once since 2010 has the en banc court overruled a precedent after the panel had ruled.
- Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”
The 18 CA3 en banc cases since McKee became chief, from most recent to oldest, are:
Two opinions today, plus a panel rehearing grant.
First up is an interesting attorney-advertising case. Certain judges had praised a lawyer in unpublished opinions, and the lawyer prominently quoted that praise on his website. One of the judges asked him to take down the quote, and ultimately the New Jersey Supreme Court adopted a professional rule banning advertising with opinion-quotes unless the opinion appears in full. The district court rejected the lawyer’s argument that this rule violated his First Amendment speech rights, but CA3 reversed. The court ruled that the ban was unduly burdensome and not reasonably related to consumer deception.
The case is Dwyer v. Cappell. Opinion by Ambro, joined by Hardiman and Greenaway. Arguing counsel were Andrew Dwyer for himself and Susan Scott for the state. Maybe Dwyer will be able to find more quotes from his remarkable win today to add to his site.
Today’s other opinion was summarized by CA3 thus:
Appellee Lincoln T. Griswold purchased a life
insurance policy that was later sold to Appellant Coventry
First LLC (Coventry) for an allegedly inflated price that
included undisclosed kickbacks to the broker. Griswold sued,
and Coventry moved to dismiss the case for lack of standing
or, in the alternative, to compel arbitration. The District Court
denied the motion and Coventry appealed. Two questions are
presented: (1) whether we have appellate jurisdiction to
review the District Court’s denial of a motion to dismiss for
lack of standing; and (2) whether the District Court erred
when it denied a motion to compel arbitration.
The court answered both questions in the negative and affirmed.
The case is Griswold v. Coventry First LLC. Opinion by Hardiman, joined by Ambro and Greenaway (same panel as today’s other case, but argued a month earlier). Arguing counsel were Ronald Mann for the insured and Kannon Shanmugam for the insurer, both appellate heavy hitters. Link to the argument audio here.
Besides today’s two published opinions, the court also entered an order granting panel rehearing in NLRB v. New Vista Nursing and Rehabilitation, a case decided by CA3 over a year ago (opinion here). The cases involves the Recess Appointments Clause, so I assume rehearing was granted to assess the impact of the June USSC ruling in Noel Canning. Stay tuned.
The only en banc argument on the Third Circuit calendar is United States v. Katzin. The argument is set for May 28.
Katzin involves two related issues:
- Do police need a warrant to attach a GPS to someone’s car? and
- Do the fruits of a warrantless GPS search get suppressed?
All 3 panel judges agreed that a warrant is required, and the majority held that the fruits must be suppressed per the exclusionary rule. No circuit had reached either issue.
The panel author was Greenaway, joined by Smith; Van Antwerpen dissented. Arguing counsel were Thomas Dreyer and Rocco Cipparone Jr. for the appellants, Catherine Crump for amici ACLU and NACDL (with CA3 superstar Peter Goldberger on brief), and Robert Zauzmer for the Government.