Tag Archives: Posts linked on How Appealing

Quick thoughts on Bibas’s Senate hearing [updated]

Stephanos Bibas’s committee hearing just wrapped up. My overall view is that he acquitted himself well and solidified his prospects for confirmation.

[Update: here’s a link to video of the hearing which I found on How Appealing.]

The Democrats on the committee pressed him mainly on two points: his unsuccessful prosecution as a junior AUSA of a $7 theft case, and his advocacy in an unpublished article for corporal punishment including electric shocks as an alternative to prison.

On the $7 case, I thought he hit it out of the park, concluding, “I made a mistake, I apologized, I learned from it, and I tried to improve the justice system going forward.”

On the electric shocks, Bibas was less deft. His initial response sounded like a flat denial that he’d ever advocated that, pointing to a 2012 book of his. [Referring to his responses starting at 54:27 through 55:15] But then Senator Durbin — not Bibas — raised Bibas’s 2009 unpublished article (which I have never seen) where he’d urged as the default punishment for “the broad middle spectrum” of crimes be “non-disfiguring corporal punishment such as electric shock.” [Starting at 1:00:51] Bibas responded that he now categorically rejects corporal punishment and disavowed his 2009 paper as “a crazy idea.” And, “I realized after discussing it, yes it’s crazy.” While I’m surprised that such a magnificent advocate would leave himself open to Durbin’s haymaker like that, in the end I think Bibas said what he needed to say.

That bobble aside, I thought Bibas’s overall performance was strong and I expect that his confirmation is now just a matter of time.

 

Other miscellaneous observations from the Bibas hearing:

  • He wore a necktie, not the bow tie he often wears.
  • In introducing his family at the hearing (including some very winning remarks about his kids), he noted that one of his relatives has the same name he does, and that the relative’s writings have been mistaken for his. I hope I didn’t get them confused in my posts here.
  • At one point as Bibas was gesturing he briefly held a black yarn item in his hand. Maybe I’m showing my ignorance here, but I wondered what it was.
  • Senator Cruz mentioned that he had known Bibas for 25 years ago or more because they both competed at college debate events. He joked that back then neither of them would have been thought of as “the cool kids.”
  • In the course of explaining his concern about over-incarceration and its impact on poor and minority communities, Bibas said, “a person is not reducible to his worst act.”
  • Senator Klobuchar asked him if he supports cameras in the courtroom. His response was that he’d be the new guy so he wanted to listen first. He said he thought the Third Circuit was one of the first, if not the first [no] to record and transmit video, but only if all the lawyers [no] and all the judges consent. He noted that “only a few” videos had been released — sounds like Bibas is a Bashman reader too — and said he’d like to know why so few, and whether there had been any blowback from the videos released so far.
  • Bibas noted that the Third Circuit has a reputation for collegiality and for relatively few dissents and concurrences. He said he thought this was healthy, and said he hoped to do his part to maintain that atmosphere of consensus.

UPDATE

News coverage of the hearing by Michael Macagnone for Law360 (paywalled) is here.

And Howard Bashman linked to this post on How Appealing, included a link to video of the hearing, and wrote:

I listened to the testimony of Third Circuit nominee Stephanos Bibas at this morning’s Senate Judiciary Committee hearing (you can view the archived video via this link), and I found him to come across as extraordinarily intelligent, enthusiastic, and thoughtful. He was even considerate enough to speak quickly when answering so that Senators could ask more questions (something that other nominees seem to deliberately avoid).

I for one am really looking forward to seeing him in action at the Third Circuit, occupying the seat that once belonged to the Third Circuit judge for whom I clerked immediately after law school.

 

Even more on Bibas

Yesterday I posted some thoughts on Third Circuit nominee Stephanos Bibas as his Senate hearing approaches, the latest of many posts on him here. [UPDATE: the hearing has happened, and I posted my initial thoughts on it here.] If there was a theme to my four comments, I suppose it was ‘liberals, don’t panic.’

Today, one more (last?) overarching thought before the hearing: while we know a staggering amount about Bibas’s views on criminal-justice issues, we know surprisingly little about his views beyond his professional focus.

What we do know about his views on other issues is intriguing, ambiguous, and very far from definitive:

  • He has described himself as a conservative;
  • He grew up in New York City. His father was a Greek immigrant who owned restaurants. Bibas and his wife Juliana have four children. He is a devout Christian who is active in the Orthodox Church. He was “raised Orthodox, but didn’t get serious about it until he was in his late 20s.” His wife has a masters in European History, wrote a novel, and is a prolific (and amazing) blogger.
  • His only political contributions have been to Republicans — Bob Dole in 1996, Mitt Romney in 2012, and Pat Toomey;
  • His closest professional associates appear moderate-to-liberal, especially on gun control
  • His Supreme Court clinic cases have trended liberal;
  • His respectful 2016 remembrance of Justice Scalia for the Heritage Foundation emphasized Scalia’s liberal rulings and noted, “I have given him two cheers, not three, criticizing his formalism as sometimes too rigid and impractical and his originalism as stretching beyond its textual and historical foundations.”
  • A junior professor who worked closely with him wrote a letter in support of his nomination which noted that, no one had been more empathic to her as a gay woman than Bibas and every career conversation they had began and ended with her wife and daughter;
  • The former dean of students at Penn Law wrote in support, “as gay men, my husband and I have always found Stephanos to be warmly supportive of our relationship and marriage. On several occasions Stephanos and I have spoken about evolving LGBT history and issues. These are issues with which he has shown no personal or academic discomfort.”
  • His nomination has been publicly supported by many committed liberals, including David Rudovsky, Barry Scheck, and Akhil Amar;
  • He was chosen through a process reportedly driven by two conservative groups, Federalist Society and Heritage Foundation; and
  • Many committed conservatives have spoken rapturously of his nomination, including Carrie Severino (“fantastic,” “another major victory“), Jonathan Adler (“incredibly strong,”), and Robert George (” a terrific choice“), and a reportedly Koch Brothers-funded group ran ads supporting his nomination.

Such are the tea leaves I’ve found — make of them what you will.

 

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

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

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

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

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

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

 

Alimbaev v. AG — immigration — reversal — Krause

Here’s a fascinating introduction:

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

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

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

 

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

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

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

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

Bibas featured in provocative new article on plea bargaining

Third Circuit nominee Stephanos Bibas figures prominently in a harsh new look at plea bargaining in this month’s issue of The Atlantic. The article is “Innocence is Irrelevant,” by Emily Yoffe, link here.

Bibas is quoted describing the criminal-justice system as a “capacious, onerous machinery that sweeps everyone in.” And this:

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” Bibas said to me.

Am I the only one who can’t wait for his Senate Judiciary hearing?

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

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

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

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

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

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

UPDATE: coverage by Matt Miller on Pennlive here.

 

Posner’s new book is bananas, but you might want it anyway

No doubt you’ve heard that legendary Seventh Circuit Judge Richard Posner abruptly retired earlier this month. Likely you’ve also heard that he just released a sensational new book recounting the conflict over his court’s handling of pro se appeals that he says led to his retirement. Posner is famously irreverent, and I suspect many look forward to watching the fists fly.

I got a copy of Posner’s book over the weekend, and I’ve read most of it and skimmed the rest. It’s called Reforming the Federal Judiciary, and subtitled My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments. He self-published it through Amazon, you can buy it here for the low-low price of $11.99.

Let’s start with the positive:

  • There’s a kernel of bracing Posnerian brilliance here. Blazing a spotlight on the separate-but-equal appellate review that pro litigants receive is vitally important. Hardly anyone understands how pro se appeals are handled by the federal courts — that is, how differently than appeals by litigants wealthy enough to hire lawyers. And hardly anyone cares. Posner is on to something big here.
  • There’s a decent amount of raw information here about what staff attorneys’ offices do in different circuits. For the Third Circuit, there’s 20 pages of survey answers by current staff attorneys detailing who they are and what they do. There’s some useful information there for appellate practitioners. There also is detailed information on the Fifth and Seventh Circuit SAOs, and a spreadsheet with data on most of the others.
  • Third Circuit fans will note with satisfaction that our staff attorneys’ office is held up by Posner as one of the offices that’s doing it right, or at least better.

So much for the happy part. Posner has made a terrible mistake in publishing this book. It is batshit crazy.

At its heart, this book is a baffling, disjointed blow-by-blow of Posner’s many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.

The primary battle arose from Posner’s demand that he be allowed to re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it “uncontroversial” and he was “surprised” when it was met with first silence, then uniform rejection. When Wood told him so, Posner “angrily” threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything — memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.

And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because “uniquely among this court’s judges, [he had] a deeply felt commitment to the welfare of the pro se litigants.” But, by his own account, he only “became interested in the staff attorney program in the late winter/early spring of this year (2017).” And in his preceding three and a half decades on the court, “I’m pretty sure I’d never even discussed it with another judge.” Deeply? Uniquely?

It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se’s and televising arguments, when this case has nothing to do with either? Because “I’ve decided to note two recent clashes with colleagues.” This is not Posner-being-Posner, this is madness.

The other “clash” he chooses to recount is when he emailed all the judges on the court to tell them he thought it odd that some judges referred to Wood as “Chief Diane.” He admits this one “doesn’t reflect credit on me” and, “In retrospect, I cannot understand what moved me to email the judges ….” Me neither.

While bad judgment is the real issue and there are dozens more examples available, there also are embarrassing errors. An appendix with another judge’s writing tips (?) repeats itself at length. The index lists Third Circuit Chief Judge D. Brooks Smith, but actually the judge referred to all but once is EDVa Chief District Judge Rebecca Smith. One passage starts out as narrative text but ends up as a quoted email. It all reinforces the sense that this book was a lonely endeavor.

Posner’s enemies will be chortling, but, for his many admirers, it’s just sad.

 

 

UPDATE: here is a powerful response to Posner’s book, written by a former Seventh Circuit staff attorney (and current DOJ antitrust lawyer) and posted on October 5 on Volokh Conspiracy.

Advice for appellate lawyers doing their first Third Circuit case

If you’re an experienced appeals practitioner with little or no Third Circuit experience, and now you’ve got a Third Circuit appeal, this post is for you. You’ll likely find that Third Circuit practice holds no huge surprises, but every court has its own rules, practices, and norms.

If you’ve done your share of appeals but you’re new to the Third Circuit, here are nine things you should know:

  1. Don’t count on getting oral argument. The Third Circuit holds the fewest oral arguments of any federal circuit in the country — 20% fewer in 2016 than the next lowest circuit. The Second Circuit holds argument in almost a third of its cases, the DC Circuit in almost half, but the Third Circuit grants argument less than 10% of the time. Unless your case is extraordinary, you’d be foolish to bank on the court granting oral argument, so if you’ve got something to say, say it in your brief(s).
  2. You’ll find out who’s on your panel after the briefs are submitted and roughly two weeks before oral argument or submission on the briefs. The three panel judges are identified in the letter from the clerk you receive on ECF, captioned either “Submit Notice” or “Argue Notification,” notifying you whether the panel granted argument (a decision made by the judges not staff counsel and made after briefing).
  3. Don’t be confused by the letter you get from the clerk (also after the briefs are in, but before the letter in #2, this one ECF-captioned “Calendared_Merits”) asking if you’re available for argument on a particular date. This letter is sent out by the clerk automatically, meaning it does not imply that the court will grant oral argument in your case.
  4. The Third Circuit is an emphatically centrist court. Different folks would draw these lines in different places, but it wouldn’t be crazy to classify the active Third Circuit judges as 1 liberal, 2 conservatives, and 8 moderates. (Here’s one perspective.) So if your case is ideologically charged, know that the deciding vote on your panel will quite likely be a centrist.
  5. Steer well clear of attacks on the court below or the other side. This is true in most any appellate court, but especially so here. The Third Circuit’s patience for sniping and insinuations of bad faith is low. Your devastating verbal jabs are way more dangerous to you than your intended target.
  6. Follow all the rules. The court has come down hard recently on lawyers who didn’t, including lawyers with little Third Circuit experience. Howard Bashman has warned that these cases “may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.” (Links to the federal appellate rules and the local rules are on Third Circuit’s website and also on the sidebar of this blog.)
  7. The court has standing orders discouraging requests for extensions of time or brief-length, and they mean it.
  8. If you do get oral argument, be aware of two ways the Third Circuit differs from other circuits. First, the court can be loosey-goosey with argument time limits. Don’t be shocked if the panel keeps peppering you with questions long after your red light went on. Second, the court now posts video of a few arguments on its website, which you may find helpful for getting a feel for what to expect beforehand, or impressing your mother afterwards.
  9. For more comprehensive coverage of circuit practice, there’s a Third Circuit practice manual that was just updated this year. There’s also a shorter (and free) online practice guide put out by the circuit bar association. Both are outstanding. And of course the circuit clerk’s office is indispensable.

Last thought: consider consulting with a lawyer who practices in the Third Circuit regularly. One place to start is the circuit bar association’s board. I’m on it, and I consult a lot with lawyers doing Third Circuit appeals, but others do too. Whether you need to figure out procedure, understand the court’s dynamics, or moot your argument, sometimes there’s no substitute for local expertise.

 

BONUS UPDATE

Here’s how to pronounce judges’ last names that sometimes get mangled:

  • Chagares — shuh GARR iss (rhymes with ‘the Harris,’ not ‘the Norris’)
  • Vanaskie — vuh NASS key
  • Scirica — suh RICK uh
  • Cowen — first syllable rhymes with ‘now,’ not ‘go’
  • Nygaard — NYE gard (first syllable rhymes with ‘hi’)

 

 

 

 

Advice for new circuit clerks

Now is the time of year when new federal appellate clerkships start, which got me thinking back to my own clerkship for a wonderful Tenth Circuit judge. (The other judge I interviewed with was Chief Judge Becker here in the Third Circuit. So close!) My clerkship was one of the best years of my life, and I’ve heard many other former clerks, before and since, say the same thing.

If you’re just starting a Third Circuit clerkship, you’ve probably heard lots of folks like me wax enthusiastic about clerking. You’re excited, and you should be. Walking into the courthouse that first day is a singular feeling.

But when I started my clerkship I had a pretty hazy idea of what clerkships actually were like. All the misty-eyed encouragement is nice, but it doesn’t give you the whole picture. Understanding a few realities going in can help you get the most out of your clerkship.

So here are six things you should know:

1. The applause is over. Law school is a firehose of feedback. Class rank, exams, jobs, law review, and on and on — as a law student you were measured against your peers constantly and minutely. You came out on the winning end often enough to land a circuit clerkship, and those triumphant moments were intoxicating.

But, when it comes to feedback, clerking is nothing like law school. You’re working just as hard, but suddenly there’s no medal ceremony at the end of every race. No one’s handing out prizes for the best opinion drafts. No one’s telling you whether your bench memo was an A+ or a B-, or why. Judges don’t care whether you rank 8th or 58th on their list of all-time best clerks, which doesn’t exist.

In law school, you knew how you were doing down to the hundredth of a gradepoint. In your clerkship, you may wonder for weeks or months, without the barest hint. The competitive fire, the moments of triumph and affirmation that got you through law school — they won’t get you through your clerkship.

2. Judges are busy. When I was a law student daydreaming about clerking, I pictured myself in the judge’s office, earnestly hashing out big legal questions with my co-clerks and the judge. Afterwards, in my daydream, the judge would mosey over to my office, lean back in a chair with his feet up on my desk, and we’d bat around reflections on the big opinion we just issued.

That ain’t how it went.

Every day, on average, my judge read 1,000 pages of briefs and decided two cases. He estimated that he wrote the equivalent of two law review articles a week. So there wasn’t a whole lot of time left to sit around and bullshit with me.

3. Extroverts beware. One of my co-clerks was a true people-person, warm and social. For folks like her, a circuit clerkship can be a lonely bore. Coming from law school, appellate clerking can feel like a year of monkish solitude. You spend most days shackled to your computer, researching and cite-checking and drafting. You get a bit of human contact with your nerdy co-clerks, but a lot less contact with other chambers, and, unlike district clerkships, no contact at all with the lawyers.

That’s fine and dandy if you’re like me — another of my co-clerks dubbed me a Lover of the Law, and I do believe his tone was mocking. But if you’re an extrovert, know that you’re probably not going to get all the social sustenance you need at work, so try to get it somewhere.

4. Accuracy before artistry. Law school rewards flash: it’s less important to be correct than to seem brilliant. Most exam questions don’t even have a ‘right’ answer. They’re a backdrop against which you dance and preen, outdoing your classmates with your elegant insights. No one cares too much whether you concluded in the end that Daisy’s negligence proximately caused Peter’s injury or not.

But, as a clerk, your focus can’t be your stardom. If it is, you can stretch too far to find and reach issues that seem important, even when (especially when) the parties haven’t briefed them adequately. You can spend too much time crafting grand Gorsuchian passages and too little time slogging through the record.

If your focus is on standing out, you’re prone to make more mistakes. Maybe that trade-off was worth it when you were a law student, but not when you’re a law clerk.

5. Be your best self. A circuit clerkship is a nifty thing to have on your CV, but for many the credential ends up mattering less than the relationships they built during the clerkship. Of course you want to charm and impress your judge, but don’t lose sight of your co-clerks and the clerks in other chambers. In the decades ahead they’re going to be doing amazing things — their friendship will enrich your life and maybe help your career. Do your best not to be an ass.

6. Let the judge be the judge. One day down the road, after the initial panic recedes, you just won’t believe how much power you’ve got as a clerk. You untangled how the case should come out, you persuaded your judge, and now it’s going into F.3d. It’s heady stuff.

That’s all fine. You really do get to have an impact, and that’s part of the fun. But keep it in perspective. You’re not the one who made it past the Judiciary Committee, and you’re not the one whose name goes on the opinions. And thank god for that. Because, for all your jaw-dropping Bluebook mastery, you’re still a knucklehead with a career’s worth of lessons yet to learn. Your job isn’t to decide cases: your job is to help your judge decide. Remember that, and you’ll do okay.

 

For most, the cliche turns out to be true: clerking for a federal appellate judge is an amazing opportunity. But chances are it will be a different version of amazing than the one you envisioned beforehand. The sooner you accept that, the easier it will be to appreciate everything your clerkship does offer.

 

As I was working on this post, I also solicited input on the topic from others. Here are those thoughts, verbatim with light editing for consistency:

  • Some lawyers just aren’t very good. While it is true that you will marvel, on occasion, at the quality of lawyers’ briefs, you also find yourself marveling that someone had the gall to submit (insert piece of trash here) to the marble palace in which you now reside. The mean average of briefs hovers around “adequate”; which, if you think about it, is probably ideal if it gets the job done. But there’s some terrible lawyering out there, more terrible still when your independent research–and get used to doing independent research–suggests that the party could have won IF ONLY…. Such is life in an adversarial system.

  • Despite the above: most clerks come into a clerkship without extensive background in actual practice. You may not know why a lawyer did something you deem puzzling, but there may be a good reason. A lawyer’s mistake, or failure to notice a case, may seem inexcusable, but you also don’t know this attorney’s caseload. People make mistakes, and it is not the job of the clerk to punch downwards.

  • Some appellate judges are “lovers of the law,” others emphasize practicality, and most are somewhere in the middle. Don’t interpret your boss’s lack of enthusiasm for the intricacies of the FLSA as a suggestion that your work is not important or appreciated. Getting things right matters.

  • Sometimes an opinion will have passed across countless desks, have undergone scrutiny by multiple pairs of eyes … and it will still have a serious substantive mistake. The law is complex; no one can be a master of all domains. Learn when to speak up, and how.

  • With occasional exceptions, federal appellate judges do not decide cases on their lonesome. In each case, whether your judge is writing or not, you will have two other judges (and their clerks) to contend with. Some Circuits are known for their collegiality, and others for their frost. But unlike in District Court, your boss will not be her own fiefdom, and that will, for better or worse, affect how your chambers decides and writes cases — both for the present and also the future, because federal appellate judges are the ultimate repeat players.

  • You will make mistakes. You will receive pushback. Try to act constructively about the former — is there anything you can do? anything you can fix? — and graciously about the latter. Perhaps the other judge, or co-clerk, isn’t beyond stupid. Perhaps they have a point that you should consider.

  • Don’t be an asshole or asshole-adjacent. Your co-clerks will be with you the entire term — perhaps shorter, perhaps longer, but in any event long enough. Office politics are magnified in a cloistered environment, and fast. Consider it a learning experience. Instead of picking a fight over Alex’s inability to ever clean the sink, breathe deep, focus, and think of whether it’s worth three weeks of avoiding eye contact and awkward lunches with the boss. Of course it isn’t.

Hey former circuit clerks: what did we miss? What do you wish someone had told you when you started? Email me, and I’ll post any good responses (anonymously, if you prefer) in a follow-up.

 

UPDATE: Orin Kerr responded on Twitter yesterday with his own take on advice for new clerks. Highlights: “Work hard to get along with the judge’s secretary,” and “Most briefs stink.”

This should be interesting: a Porngate-related Third Circuit oral argument

On July 10, the Third Circuit panel of McKee, Ambro, and Restrepo will hear oral argument in Fina v. Miletto, No. 16-3311. The appeal arises from a suit brought by Frank Fina and other former state prosecutors and investigators alleging that convicted former Pa. AG Kathleen Kane violated their First Amendment rights during the Porngate scandal. Legal Intelligencer coverage of the district court’s dismissal is here.

Here is the appellant’s case summary:

Whether Kathleen Kane’s criminal misconduct, which was designed to coerce and silence plaintiffs criticisms of her while Kane was serving as the AG, constituted unlawful governmental retaliation for Plaintiffs protected exercise of free speech?

And the appellee’s:

Whether former AG Kathleen Kane violated the constitutional rights of the plaintiffs when she publicly criticized the work they did as criminal investigator and prosecutors and released pornography that they had maintained on the AG’s computer system.

Should be interesting.

Arguing for the appellants will be Mark Tanner of Feldman Shepherd; Edward Ellis of Littler Mendelson is arguing for the AG.

A few highlights from the Third Circuit conference

I’ve just returned from the Third Circuit judicial conference in Lancaster. All 11 active judges were there, along with at least six senior judges and a bevy of district judges from around the circuit. I loved having the chance to see so many of the circuit’s judges and fellow lawyers. Especially everyone I got to meet for the first time, and extra-especially everyone who exclaimed to me, “Wait, are you that CA3blog guy?!”

A couple highlights and random observations:

  • The theme of this year’s conference was technology. Former Third Circuit Judge Chertoff’s keynote address focused on data, privacy, and the doctrinal challenges that lie at their intersection. And fellow Garth clerks Orin Kerr and Harvey Rishikof expanded on the topic in a dazzling presentation the next morning, as did several other sessions.
  • Howard Bashman‘s How Appealing blog got a nice little Supreme Court shout-out. During Justice’s Alito’s lunchtime fireside chat with Chief Judge Smith, Alito was confessing to something or other. Maybe it was his strategy for how to interrupt lawyers at Supreme Court argument? Anyway, Alito joking pleaded for secrecy, and said something like, “Now, I know Howard Bashman is here today, but …”
  • Judge Scirica received the prestigious 2017 American Inns of Court Professionalism Award for the Third Circuit. (The press release is here.) In his acceptance remarks, Scirica spoke movingly of the importance of an independent judiciary and the critical role the practicing bar and the academy have to rise to the judiciary’s defense when its decisional independent is unfairly attacked.
  • While Judge Jordan was presenting the award to Judge Scirica — he described himself as “a devout member of the Tony Scirica fan club”  — Chief Judge Smith playfully leaped over and rubbed Jordan’s bald head. Jordan said something like “I knew that was coming.” Then, during the dessert reception that night, I saw Smith do the same thing to Judge Ambro’s far-from-bald head. This, friends, is a collegial court.
  • The Third Circuit’s low oral argument rate is a sore subject for many lawyers, and during the last session of the conference a lawyer in the audience made a plea for more oral arguments. In response, panelist Judge Shwartz explained that any one judge on the panel can call for argument, so when the court doesn’t grant argument that means all three agreed. She said the briefing was usually excellent and many appeals involved straightforward issues. She also said that she is mindful of how much work preparing for oral argument is for the lawyers.

It was a tremendous event, and I’m looking forward to the next one already.

The Third Circuit has 3 open seats. Who should fill them? [updated]

With Justice Neil Gorsuch confirmed, attention now turns to filling vacancies on the lower federal courts, including the Third Circuit. David Lat posted on the topic on Above the Law on Friday, and his post contained at least two points of particular interest to Third Circuiters:

  • “[T]he nominees are very young — some names I’ve heard mentioned are still in their 30s,” and
  • “I’ve heard through the grapevine that interviews for some (but not all) spots on the Third, Seventh, and Ninth Circuits … are underway.”

The Third Circuit urgently needs judges. Of the 14 seats on the court, three are open:

  • Judge Rendell’s seat (Pennsylvania), open since July 2015. President Obama nominated Rebecca Ross Haywood for this seat but Senator Pat Toomey blocked her.
  • Judge Fuentes’s seat (New Jersey), open since July 2016.
  • Judge Fisher’s seat (Pennsylvania), open since February 2017.

The $64,000 question: Who should fill these three seats?

Home-state senators have the power to block judicial nominations by withholding their blue slips. That means Pennsylvania’s Democratic Senator Robert Casey can block two of the seats, and either of New Jersey’s Democratic Senators (Cory Booker and Bob Menendez) can block the third.

Casey and Menendez are both up for re-election in 2018. Menendez is under indictment for federal corruption charges. Booker has been mentioned as a potential 2020 presidential candidate. So all three likely will be under the microscope.

What will Trump do? What will Casey, Booker, and Menendez do? What should they do?

I’ve given this a lot of thought since my last posts about it (here and here) last November, and I believe the solution is straightforward.

First, all three seats need to be filled. ‘They blocked us before so we’ll block them now’ is the wrong answer.

Second, at least two of the three seats should be filled by women. The Third Circuit has only two active judges who are women, the worst gender imbalance [until recently, see below] of any circuit in the country. Perpetuating that imbalance is unthinkable.

Third, both the Rendell seat and the Fuentes seat should be filled by consensus picks. The precedents here are Judges Greenaway and Vanaskie, both nominated by President Obama with a Democratic-controlled Senate to fill seats that opened during President Bush’s presidency.  Both were moderate centrists — Greenaway was a federal criminal prosecutor and corporate counsel who clerked for a Republican-nominated judge, Vanaskie was MDPA chief judge with a decade and a half on the federal bench and was a Scranton commercial litigator before that.  And both were over 50 when commissioned — Greenaway 52, Vanaskie 56.

Yes, Republicans may have stolen the Rendell and Fuentes seats from Democrats by obstruction, but the way forward for Democrats now is compromise, not more obstruction. So, agree on two well-qualified moderate Republicans in their 50’s, one from PA and one from NJ, and confirm them.

Democrats may fight to fill the Rendell seat with a moderate Democrat, arguing that Republicans stole the seat by Toomey’s indefensible obstruction of Haywood and citing President Clinton’s compromise nomination of Republican Judge Barry as a precedent. That was my view before, and it may still help as a bargaining position, but the fact is those sorts of arguments didn’t get Republicans in the seats filled by Greenaway and Vanaskie, so I don’t expect them to get a Democrat in Rendell’s seat, either.

Fourth and finally, the Fisher seat should be Trump’s to fill with the qualified nominee of his choosing. Judge Fisher waited to go senior until Trump took office, so it’s a Republican seat, fair and square.  If the administration wants a 38 year-old Federalist Society stalwart here, it should be able to. But I expect Casey to insist that this nomination be paired with the Rendell-seat nomination to protect his leverage.

This isn’t rocket science. The right answer is clear enough. The administration and the home-state Democratic senators ought to be able to work together amicably and expeditiously to fill these seats and get the Third Circuit finally back to full strength.

But if Trump tries to fill all three seats with young conservative partisans? Expect a war.

 

UPDATE: Professor Jonathan Adler has helpfully pointed out to me that the Eighth Circuit is now down to one woman active judge (Judge Diane Murphy took senior status in November), so the Third Circuit no longer has the worst gender imbalance of the circuits. Still.

Also, as Howard Bashman‘s How Appealing noted, Professor Orin Kerr responded to this post on Twitter here and here proposing Lee DeJulius, Stephanos Bibas, and Chris Paoelella (“assuming he’s Jersey enough”) for the three seats.

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

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

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

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

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

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

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

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

 

Judge Barry assumes inactive status

The Associated Press reported on Thursday that Third Circuit Judge Maryanne Trump Barry assumed inactive status, effective immediately. She will cease hearing cases; according to the report she is giving up her staff and chambers but can still serve on court committees. Chief Judge D. Brooks Smith complimented her in the story as “a talented judge with a knack for handling complex cases.”

Characteristically, Judge Barry did not announce a reason for stepping down now. She is 79 years old and has been a federal judge for over three decades, and that’s reason enough. But she also has landed in the headlines often over the last year and a half for reasons related to her brother, President Trump. I get the sense that she detests the controversial attention, and I can’t help wondering if that contributed to her decision to go inactive now.

Judge Barry is the second Third Circuit judge to assume inactive status in the past year, after Judge Sloviter did so last April.  The court now has only two active and two senior sitting women judges.

Here’s why I think Hardiman is more likely than Gorsuch to be Trump’s Supreme Court nominee

The news coverage over the past 24 hours has annointed Tenth Circuit Judge Neil Gorsuch as the favorite to be nominated for the Supreme Court by President Trump. I’m skeptical.

Gorsuch is the walking embodiment of the mainline GOP legal establishment: D.C. politico parent, Harvard Law, Scotus clerkship, fancy firm, Justice Department, feeder judge, dazzling writing. When Trump looks at Gorsuch, I think he sees John Roberts and Brett Kavanaugh and Merrick Garland.

I think he sees the guy Jeb Bush would beg him to choose.

Jeff Sessions, Sean Spicer, Steve Bannon, Jared Kushner, Linda freaking McMahon — every one of them is a Johnny Cash middle finger to establishment D.C. Republicans. And now he’s going to pick their darling for the Supreme Court? Anything’s possible, but it seems unlikely to me.

Judge Thomas Hardiman fits Trump’s core us-against-them political narrative in a way Gorsuch never can. The Supreme Court is filled with Ivy League grads and glittering resumes. Hardiman? Just ability and rock-solid conservatism. No Oxford, no Ivy League law degree, no clerkship, no prestigious stable of Scotus clerks, and no rhetorical flash. President Jeb might never have given him a second look: perfect.

The mainstream media all seem to think Gorsuch is the front-runner today. But if the choice really does come down to Gorsuch or Hardiman, I’m betting on Hardiman.

Third Circuit will start posting oral argument video, but only for selected cases [updated]

The Third Circuit today entered an order amending the court’s internal operating procedures to allow for public posting of video recordings of oral arguments. (Chief Judge Smith telegraphed this move in November.) The amended IOP reads:

2.6 Posting of oral argument on the court’s website.
2.6.1 Audio recordings of all arguments will be posted on the court’s internet website unless the panel directs otherwise.
2.6.2 Counsel will be provided an opportunity, either before or after argument, to recommend or to object to the posting of video recordings of oral argument. If the panel is inclined to post a video recording, the clerk will inform counsel and direct counsel to submit any objections by close of business the next day.
2.6.3 While the Clerk will convey to the panel any suggestion from counsel or the public that video recordings be posted for public viewing, the decision on whether to post video recordings for public viewing is within the sole discretion of the panel. No opinion or order need be entered regarding a suggestion that video be posted.
2.6.4 If, after oral argument, and considering the views of counsel or the public if any, the panel unanimously agrees that an argument presents issues of significant interest to the Public, the Bar, or the Academic Community, the panel will direct that a video recording of the argument be posted for public viewing on the court’s internet website.

The key word here is “unanimously.” No video will be posted unless all three panel judges agree to it after the argument. That means any single panel judge can veto video posting in any case or in every case.

And implicit in the new procedure is the near-certainty that video will not be posted the same day as the argument. I expect that will reduce or even eliminate the newsworthiness of the videos that are posted, and perhaps that’s the point.

Howard Bashman posted this reaction on How Appealing:

Unlike the Ninth Circuit, which now posts video footage of essentially all of that Court’s oral arguments on YouTube, the Third Circuit has decided to determine whether video of an oral argument will be posted online on a case-by-case basis, which would seem to add unnecessarily to each oral argument panel’s workload. And, unlike the Ninth Circuit, which has for quite some time live-streamed oral argument video on YouTube, we will have to wait and see how soon after oral arguments the Third Circuit will be placing online the oral argument videos selected for posting.

I anticipate that the Third Circuit will someday move to the Ninth Circuit’s approach of posting videos of essentially all oral arguments online. Here’s hoping that day arrives sooner rather than later.

Howard’s concerns strike me as well-founded, but I’m more skeptical than he is that the court will end up adopting the Ninth Circuit’s approach.

Hat tip to How Appealing for the new procedure; I’m curious how Bashman found out about it because the change does not appear on the court’s announcements page [UPDATE: now it does].

UPDATE: the court just posted this interesting and informative press release shedding light on the origin and goals of the new policy.

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.

Senator Menendez’s cert petition unloads on the Third Circuit

After the Third Circuit in July denied NJ Senator Robert Menendez’s effort to toss the criminal prosecution against him, it was hardly a surprise that Menendez would file a petition for certiorari.

But the tone of the petition the Senator filed this week (h/t How Appealing) is an eyebrow-raiser. It describes the Third Circuit’s reasoning as “nonsensical,” “an affront,” “[u]nsurprisingly … in conflict with this Court’s precedents,” “mak[ing] no sense,” “completely illogical,” “utterly perverse,” containing a “fundamental flaw” that is “all the more obvious,” “misguided,” and, finally, “inexcusable.”

Now, the petition was filed by top-caliber advocates — Abbe Lowell is counsel of record, Paul Clement and Viet Dinh also signed. And maybe cert will be granted.

But I’m mighty skeptical that dumping this avalanche of contemptuous adjectives and adverbs on the Third Circuit was the best way to go.

 

 

What the 2016 presidential election means for the Third Circuit: take two

Back in September I wrote:

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency [CORRECTION: he became eligible in 2014]. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.

When I wrote all that, I expected Hillary Clinton to win the election. Now that Donald Trump has won, let’s take another look.

There are two open seats on the court. My guess is that Judge Fisher will now take senior status, which would create a third opening. It remains to be seen what Judges McKee and Ambro will do, but my guess is they will remain active. So I expect Trump to get three seats to fill right away.

What kind of judge will Trump nominate? His Supreme Court short-lists were pleasing to conservatives, so it’s a reasonable bet that his nominees will be in the mold of Justice Alito, but I don’t think anyone really knows.

It’s also is hard to say whether Democrats will have any meaningful leverage over who gets nominated or confirmed. The nuclear option did away with filibusters for circuit nominees. Democratic Senators (one in PA, two in NJ, two in DE) may keep their blue-slip power to block home-state nominations from going forward, but I don’t feel confident about that. [Update: Although the Senate Judiciary chair said last year he was committed to the blue-slip procedure.]

As I’ve noted, only two of the Third Circuit’s 13 active judges are women, the worst gender disparity of any circuit court. A Clinton presidency seemed certain to reduce that imbalance: a Trump presidency, much less so.

My best guess is that by 2018 the Third Circuit has 7 GOP-nominated judges and 7 Dem-nominated judges and that overall the court will be significantly more conservative-leaning than it is now.

McKee’s early end to Third Circuit chief judgeship: collegiality over partisanship? [updated after speaking to Judge McKee]

When Third Circuit Judge Theodore McKee stepped down from his role as Chief Judge on October 1, he ended his chief judgeship early. Judge McKee’s term as chief would have run through 2017.

What’s the actual reason he stepped down early? I don’t know. The court’s press release didn’t mention that he was giving up his role before his term was over, let alone say why. And I don’t have any inside information. But I’ve got a theory.

[UPDATE: After I posted this, Judge McKee confirmed that my theory about why he stepped down early was “exactly dead on.”]

First, some background. Circuit-chief-judgeship-selection procedure is set by statute, 28 USC § 45. To become chief, you have to be under 65; your term runs for 7 years or until you turn 70, whichever comes first. McKee became chief in 2010 and was born in 1947, so his term was set to end in 2017.

Did he end early due to health? Because he wanted to scale back? Because he’s tired of the extra administrative role? I’ve seen nothing to support any of those hypotheses. The court’s press release says he’s not going senior, and his recent creation of the eyewitness-identification task force shows how comfortable he still was wielding the chief’s power.

But McKee’s decision to step down in 2016 had this clear consequence: it allowed Chief Judge Brooks Smith to become chief. Smith turns 65 in December, so, if McKee had served out his term into 2017, Smith would have been too old to become chief. Judge Michael Chagares would have been next in line, instead.

An aside:  am I suggesting McKee gamed his retirement date to keep Chagares from succeeding him? No. Chagares will still be chief (assuming he remains on the court and wants to be chief). If Smith serves his full term, he will be chief until 2021 when he turns 70. In 2021 Chagares will be only 59, so he’d still be eligible to serve a full seven-year term.

So why did McKee step down early? My guess [now confirmed] is he did it simply so that Smith could have the honor of serving as circuit chief. Third Circuit collegiality, pure and simple.

Okay, so now let’s look at all this through a partisan lens. McKee’s decision to step down early is remarkable in this poisonously partisan era, and not just because he’s a liberal and Smith was nominated by President George W. Bush. Here’s how the circuit’s chief judgeship succession will now play out in the years ahead, assuming everyone stays on the court, serves as chief when eligible, and serves a full term:

2016 – 2021  Smith

2021 – 2028  Chagares

2028 – 2035  Hardiman

2035 – ?   [to be determined — no judge who’s currently on the court]

So Republican-nominated judges can be chief until 2035, and likely longer than that if the next president is Republican.

Now, look at how the succession would have played out (same assumptions as above) had McKee served out his term:

2017 – 2024  Chagares

2024 – 2031  Hardiman

2031 – 2038  Krause

A Dem-appointed judge would have taken over in 2031, regardless who wins this November. GOP-nominated judges would have been able to be circuit chief for ‘only’ 14 years, not 19-plus.

Now, that’s all pretty deep in the weeds, obviously, but it demonstrates a basic point: McKee’s decision to step down early didn’t just benefit Smith, it also benefits Republicans. I doubt Judge McKee gave a damn.

If I’m right about all this [and I am], it shows that, even in 2016, there are still leaders who choose collegiality over partisanship.

What the 2016 presidential election means for the Third Circuit

Much has been written about how the upcoming presidential election will impact the U.S. Supreme Court, but the election’s impact on the circuit courts has gotten much less attention. Liberal advocacy group Alliance for Justice posted this useful analysis back in May, and Russell Wheeler’s excellent research on circuit vacancies, such as here and here, also sheds light on what the election means for the circuits. [Update: also Matthew Yglesias’s interesting piece on Vox.com here.]

With this post, I want to focus on what the election means for the composition of the Third Circuit.

The Third Circuit has 14 seats and currently has two openings: Judge Rendell’s seat since last summer, and Judge Fuentes’s seat since July. President Obama nominated Rebecca Haywood for the Rendell seat back in March, but that nomination appears stalled. Obama has not nominated anyone for the Fuentes seat yet.

In addition, the court currently has three judges who are eligible to assume senior status and thus create new openings: Chief Judge McKee and Judges Ambro and Fisher. McKee is 69 and his term as chief will end next month. Ambro is 66. Fisher is 71 and has been eligible to go senior since the first year of Obama’s presidency [CORRECTION: he became eligible in 2014]. A fourth, Judge Vanaskie, will become eligible to go senior during the next president’s first term. (So will Judge Smith, but he will become Chief instead.)

So there’s a realistic chance that the next president will get to fill 6 of 14 Third Circuit seats in her or his first term.

Obviously it would be fewer if any of the eligible judges choose to remain active past 65 (which isn’t unusual). Or it could be more if any other active judges left the court. (The most exciting way that would happen is if a Third Circuit judge were elevated to the Supreme Court. Candidate Trump included Judge Hardiman on his Scotus-nominee list, and Scotusblog and I have both mentioned Judge Krause as a possible Democratic-president nominee.)

Now, what does all that mean for the composition of the court? Well, of the court’s current 12 active judges, 7 were nominated by Democratic presidents and 5 were nominated by Republicans. If all 4 eligible judges go senior in the next president’s first term with no other changes, that would leave 4 Dem nominees and 4 GOP nominees. If the next president fills 6 seats in her/his first term, that’s a 10-4 party majority either way.

But, as I’ve observed before, nominating party is a far-from-perfect proxy for the ideology of Third Circuit judges. One day I’ll do a full-blown update my analysis of en banc outcomes, but for now I’ll focus on one observation: the court’s en banc cases in recent years reflect a court that is very evenly divided ideologically. Of the 9 en banc decisions since 2010 that I consider more ideological, the conservative side has won 5 and the liberal side has won 4. This week’s 8-7 vote in the Biderup felon-gun-rights en banc underscores just how evenly the court is divided.

I’d expect the court’s ideological center of gravity to shift somewhat to the left if Clinton wins, or to shift substantially to the right if Trump wins. Trump’s likely impact would be bigger because three of the four judges eligible to go senior are liberal or moderate Dem appointees, as were both of the judges whose seats are already open.

Bottom line, the upcoming election is likely to have a real impact on the Third Circuit, and if Trump wins that impact will be yuuuge.

 

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

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

Rendell’s outsized role in en banc cases

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

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

Remarkable.

Outlier-panel correction, revisited

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

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

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

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

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

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

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

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

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

Third Circuit revisits Lehman Brothers in another must-read sanctions opinion

Roberts v. Ferman — civil — affirmance — Smith

Fellow Third Circuit enthusiasts will recall the court’s ruling last year in Lehman Brothers, where the court held that a litigant’s failure to include a transcript in the appellate record resulted in forfeiture of the litigant’s claim. The ruling sparked much discussion, some of it critical of the opinion, some of it on this blog (see for example my post and this Third Circuit Bar Association newsletter article by Howard Bashman and me).

Today, the Third Circuit revisited Lehman Brothers, vigorously reaffirming the ruling but also emphasizing its narrowness. The court tartly noted, “we did not cavalierly hold that any failure to comply with [FRAP] Rule 10(b) would result in forfeiture.” It explained:

The takeaway, then, from Lehman Brothers should be clear: Gateway made an affirmative and serious misstatement in its brief before this Court when it stated that no record of the telephonic oral argument existed. This, we concluded, evinced either an intent to deceive the Court or a “remarkable lack of diligence.” Id. at 101. Even so, that alone was insufficient to warrant forfeiture, because we went on to consider Gateway’s post hoc explanation for its failure. Only upon finding Gateway’s explanation lacking did we conclude that forfeiture was an appropriate sanction.

The court held that Lehman Brothers‘ forfeiture sanction was not warranted in this case, even though this appellant also failed to include in the record some available and relevant transcripts, because “[t]here is no allegation that Roberts [the appellant] misrepresented the existence or non-existence of the trial transcript or that the explanation for his omission was a disingenuous post hoc rationalization.”

If today’s opinion’s ended there it would still be CA3-nerd can’t-miss reading, but there’s much more.

Gaps in the transcript were discovered while the case was still in district court, and the court directed the appellant to follow the FRAP 10(c) procedure for recreating the missing record. When the appellant failed to do so, the district court dismissed for failure to prosecute the appellant’s post-trial motion. With some withering language — for example, “Roberts’ counsel should take the time to read Rule 10(c)” — the Third Circuit held that this ruling was no abuse of discretion, and, alternatively, that the appellant’s actions would also foreclose review of the merits of his appeal. The opinion gives this useful practice guidance:

[O]ur holding in this case leaves open avenues for appellants to seek appropriate relief if they can show that they were prejudiced by the loss of part or all of the record below. Such an appellant must comply with the dictates of Rule 10(c) and then present specific reasons why his or her attempt to recreate the record was insufficient. This would allow us on appeal (or the district court when considering a posttrial motion) to properly assess whether we could in fact grant meaningful review of the appellant’s claims without the actual trial transcript available to us.

Finally, the court held that the district judge did not err in reconsidering sua sponte an earlier denial of summary judgment.

Joining Smith were Ambro and Krause. The case was decided without oral argument. Counsel for the appellant was Brian Puricelli, who in 2004 was the subject of a New York Times story (!) describing one of his briefs as “infested with typographical errors,” and reporting that a federal judge wrote, “Mr. Puricelli’s complete lack of care in his written product shows disrespect for the court.” Counsel for the appellee was Carol VanderWoude of Marshall Dennehy.

 

 

Third Circuit recusal procedure, the basics and beyond

Okay, quick show of hands — let’s see everyone who predicted that judicial recusal would ever be a national politics headline-grabber? Anybody?

First, there was a flurry of silly coverage about whether Judge Maryanne Trump Barry would recuse from the Bridgegate-disclosure appeal. Then the media tsunami about Donald Trump’s bashing a Hispanic district judge for not recusing from the Trump University case. All the sudden, judicial recusal is right up there with Game of Thrones and gorilla-enclosure practices amongst the key issues of our age that you’re expected to be able to discuss intelligently.

Fear not, I’m here to help.

The federal standard for judicial recusal is defined by statute, 28 USC § 455 (emphasis mine):

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

b) He shall also disqualify himself in the following circumstances:

1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
i) Is a party to the proceeding, or an officer, director, or trustee of a party;
ii) Is acting as a lawyer in the proceeding;
iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

That’s all pretty clear (albeit sexistly worded). Third Circuit IOP 11.2.2 elaborates on what counts as a financial interest.

Another situation not specifically mentioned in § 455(b) is where an appellate judge presided over the same case in trial court or state court. This comes up whenever a new circuit judge used to be a district or magistrate judge — that was true of six of the last seven Third Circuit appointees, so this pops up a lot. Third Circuit local rule 26.1.2 addresses this situation, requiring the parties to notify the court whenever it applies.

Okay, so that’s the standard, but what is the procedure for raising grounds for recusal? Recusal can happen either on the judge’s own initiative or at the request of a party.

Judicial-initiated recusal in the Third Circuit is covered by the circuit IOP 11.1:

11.1.1 Before cases are sent to a panel, the clerk transmits copies of the docket sheets and disclosure statements to each judge who responds promptly informing the clerk of those cases in which the judge is recused.

11.1.2 Each judge may submit to the clerk in writing those circumstances which would generally require a recusal, including names of businesses in which the judge or family members have a financial interest, names of lawyer relatives whose names may appear as counsel in the appeals, and names of law firms on whose cases the judge does not sit.

Third Circuit judges’ standing recusal lists (the second paragraph in 11.1) are not available to the public. But in the past the Third Circuit released information about at least one individual judge’s recusal practices. Howard Bashman reported that in 2000 the court disclosed that Judge Rendell recused herself from all cases in which a party or its law firm contributed over $2500 to her then-husband Edward Rendell’s political campaign, unless waived by the parties, and from any case involving such a contribution of $2500 or less if any party objected. Bashman reported in 2001 that Rendell’s contribution-related-recusal policy was on the Third Circuit’s website, but I don’t find any notices related to specific judges’ recusal policies on the website today.

Also, then-Judge Alito’s CA3 standing recusal lists were released to the Senate during his Supreme Court confirmation proceedings. He stated that his list included cases involving his sister’s law firm and, for his first four years on the court but not thereafter, cases he’d handled as a U.S. Attorney. His hearing testimony also indicated he updated his standing list annually.

Information about financial interests that could cause a judge to recuse is available from the disclosure forms that all federal judges are required to file annually. Those forms are available here (2015 reports are here [UPDATE: unfortunately now they’re behind a paywall], a searchable database is or at least was here), and I’ve mentioned them on the blog here and here.

Also, judges occasionally pledge to recuse from certain cases during their confirmation proceedings. For example, Alito’s circuit-nomination Senate questionnaire reportedly pledged to recuse from cases he had prosecuted as U.S. Attorney or involving certain companies.

For recusal requests raised by a party, 28 USC § 144 applies:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Whether recusal is initiated by the judge or by a party, either way a judge’s decision to recuse (or not to recuse) is normally not explained to the parties or the public. I’m not aware of any Third Circuit opinions where a judge explained his or her reasons for recusing or not recusing from a case (but I wouldn’t be surprised if it’s happened and I’ll update the post if anyone enlightens me). In a similar vein, there are Third Circuit cases about a district judge’s failure to recuse (notably US. v. Antar), but I don’t know of any about a circuit judge’s.

Not only do judges not explain why they recused, but in many cases no one outside the court will realize it happened. As indicated by IOP 11.1 quoted above, judge-initiated recusals normally occur long before the composition of the panel is disclosed to the parties. The recused judge is replaced on the panel, IOP 12.1, and the parties are none the wiser. But, at least for cases calendared by the court, it often will be apparent from the calendar when a judge may have recused from a specific case. If judges A, B, C comprise a panel deciding five cases submitted on a given day, but judges A, B, and D are the panel deciding another case, then it’s at least a good bet that judge C recused from the case D is hearing.

It’s easier to tell when judges have recused from considering a petition for rehearing en banc, because the order granting or denying rehearing en banc lists only the judges who participated, as I explained here. (But back in 2005 then-Chief Judge Scirica reportedly found frequent errors where recused judges were listed as participating; I don’t know how much such errors still occur.)

And I’ve also blogged here about a case decided earlier this year where the entire court apparently recused (due to one judge’s indirect financial stake in the case, as best I could tell [see John’s comment below]) and so the case was decided by a conflict panel of other-circuit judges.

So there you have it, recusal in all its glory. If I’ve overlooked anything, please post a comment or email me.

Guess which circuit holds the fewest oral arguments. (Hint: it’s the same one that issues the fewest published opinions.)

In the 12 months before September 30, 2014, the Third Circuit decided 2,402 cases. It heard oral argument in 238 of them, or 9.9% of its cases. The other 90.1% it decided without oral argument.

So what does that mean?

Well, the Third Circuit heard the fewest oral arguments in 2014 of any circuit. (The circuit-comparison stats all exclude the Federal Circuit.) The D.C. Circuit, which decided about a fifth as many cases, held more oral arguments. The Eighth Circuit, which decided a similar-but-smaller number of cases versus the Third Circuit, held 169 more oral arguments, or over 40% more. Even the Fourth Circuit, the only circuit that held oral argument in a (barely) lower percentage of its cases, held over 100 more arguments. When it comes to number of cases decided on the merits, the Third Circuit ranks 8th out of 12 circuits, middle-of-the-pack. Overall, the Third Circuit granted oral argument half as often as its sister circuits.

What about 2013? Same picture, even a little more extreme. In the year ending in 2013, the Third Circuit decided 2,715 cases and heard oral argument in 225, or 8.3%. Again, fewer oral arguments than any other circuit, and this time the Third Circuit had the lowest argument rate of any circuit.

[For 2015, the AOC hasn’t done the math yet. The raw numbers they’ve released for the 12 months before June 30, 2015 — the most recent data available — show the Third Circuit still holding the fewest oral arguments of any circuit, with an argument rate of 10.7%.]

Whoa, right? But there’s more.

Let’s look at how the Third Circuit’s argument numbers have changed over time. This graph shows the number of oral arguments the court has heard each of the past 17 years:

number

And here is the percentage of the court’s cases in which it heard argument over the same period:

rate

That second graph shows that the plunge in oral arguments isn’t caused by a drop in the total number of cases. (To the contrary, the court is deciding on the merits 30% more cases per year compared to the late 90s.)

So it’s clear what we’re looking at isn’t any statistical blip: this is a robust trend, a historically significant transformation of the functioning of the court. The Third Circuit hears half as many oral arguments as it did a decade and half ago. A Third Circuit litigant around 2000 was three times more likely to get oral argument than she is today.

Startling.

Now, I’m not the first one to notice this trend. Howard Bashman wrote this column in the Legal Intelligencer — after a year (2011) when the court heard 82 more arguments than it did in 2014 — arguing that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.” He concluded:

It may require at least a bit more work from the Third Circuit’s judges to slightly relax their current extreme reluctance to grant oral argument, but I cannot help but think that the extra work would yield great benefits in the form of stronger rulings and more satisfied litigants who will know that, win or lose, their arguments have been heard.

As a CA3 practitioner myself, there have been a few times I’ve been disappointed when the Third Circuit decided a case of mine without argument, cases where I believed I had raised substantial appellate issues. But, since I started my practice in 2010, the Third Circuit has heard oral argument in 30% of my cases. So I can’t complain, I’ve actually been fortunate.

But there’s still more to the story.

I’ve blogged here before about how the circuit’s rates for published opinions have dropped and are the lowest in the country. So, how do recent oral argument rates and publication rates compare? Take a look:

argument_09_2

published_09

Both curves are down from 2009, cratered in 2013, and rebounded a bit in 2014.

Curiously, the circuit’s reversal-rate curve is similar, too:

reversal_09

Coincidence? Or are the similar-looking argument and publication graphs related?

Back in 2011, former Third Circuit Judge Timothy Lewis wrote (the emphasis is mine):

There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court’s business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate.

It’s natural to wonder if the plunging rates for argument and publication are related to the unconscionable delays in filling the seats vacated by Judges Sloviter and Scirica in 2013 — over a year before Judge Krause was commissioned, over 2.5 years before Judge Restrepo was. The court faces still a similar delay now, seven months and counting since Judge Rendell went senior, still waiting for a nominee.

As I noted above, the court is deciding 30% more merits cases now than it did in the late 90s — about 750 more per year — yet it hasn’t gotten a single new seat since 1990. When you take a busy court, jack up its caseload by 30%, add zero new judges, and drag your heels filling openings — well, at some point, as Judge Lewis said, there are consequences.

My hypothesis is that we’re looking at two consequences: fewer oral arguments and fewer published opinions. Now, these trends didn’t just appear in 2012 and they’re not limited to the Third Circuit. They could well be unrelated to caseloads and to each other. And the Third Circuit isn’t the only circuit struggling with vacancies. So I haven’t proven that hypothesis here.

But, if I am right, then the root of the problem here isn’t the court: it’s Congress.

 

[Notes: I’m grateful to top CA3 advocate Brett Sweitzer, among others, for raising my awareness of the oral argument drop at a recent forum of the Third Circuit Bar Association. The oral-argument data cited in this post are from AOC table B-10. The decided-cases data and the 6/30/2015 raw data come from B-1, reversal data come from B-5, and opinion-publishing data come from B-12.]

Third Circuit en banc procedure — the basics and beyond

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

So, let’s first hit the basics:

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

A closer look at the Third Circuit’s recent en banc cases

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:

En banc table graphic

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:

More liberal

McKee

Smith / Fuentes

 Greenaway / Ambro

Rendell / Vanaskie / Jordan

Chagares / Fisher / Hardiman

More conservative

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:

  1. 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.”
  2. 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.
  3. 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.
  4. 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:

US v. Katzin

US v. Flores-Mejia

Rojas v. AG

Al-Sharif v. US C&I

US v. Quinn

US v. Caraballo-Rodriguez

BH v. Easton SD

Morrow v. Balaski

Garrus v. Secretary

US v. Mitchell

Singer Mgt v. Milgram

Layshock v. Hermitage SD

US v. Blue Mountain SD

Sullivan v. DB Investments

In re Global Indus. Tech.

In re Grossman’s

US v. Rigas

Puleo v. Chase Bank

A closer look at reversal rates — habeas is the big news

The suddenly famous Ellen Brotman commented here yesterday that CA3’s 5% reversal rate was lower than previous years. Very true. Reversals are dropping, led by a freefall in CA3 habeas reversals. I’ve whipped up some quick graphs to illustrate.

First, CA3’s overall reversal rate over the last 13 years:

At first glance that looks like a steep, steady drop. But notice that two years — 2006 with its 28% reversal rate, and 2013 with 5.4% — are outliers. Eight of the 13 years fall between 9% and 12%.

Here are CA3’s reversal rates for the two largest categories of cases, criminal and private civil:

So civil reversals are dropping, while criminal reversals spiked in 2006* but have otherwise have held relatively stable. Bottom line: private civil and criminal appeals don’t explain the 2013 reversal-rate plunge.

To get the plunge, we need to look at prisoner post-conviction appeals.** Here there are two groups: 2255 petitions for federal convictions, and habeas corpus petitions for state convictions. The numbers are startling:

Look at that habeas relief rate, the red line. For 10 years 2002 to 2011, CA3 reversed over 12% of cases every year, peaking in 2011 at 16%. Then, the elevator shaft: 6% in 2012, 3% in 2013. That’s a historic shift happening before our eyes.

Now look at the blue line, which is post-conviction challenges to federal convictions. Except for 2009,* that’s been a fairly steady downward trend, but now “downward” has become “dream on, appellant.” CA3’s 0.8% reversal rate was the lowest of any circuit in 2013. In fact, it was the lowest one-year reversal rate of any circuit since 2004. Hard to believe.

Aside: what explains this abrupt drop in post-conviction reversals? Did district court judges suddenly get more perfect? Unlikely. Did a landmark case require appeals courts to defer more to district courts? Don’t think so. On the habeas side, there were two big 2011 decisions (Richter and Pinholster) that make it harder for courts to grant habeas relief (and another one last week); if district courts started denying everything in 2011 and CA3 started affirming them all when they arrived on appeal a year later, the drop in habeas relief would make sense. I haven’t found habeas relief-rate stats, so that’s only hypothesis, and it shouldn’t explain the 2255-reversal-rate drop. But I strongly suspect the difference is that CA3 is now affirming a lot of denials that, in past years, it would have reversed.

Anyway. So how does CA3 compare to its sister circuits? Here’s a comparison of CA3’s overall reversal rate vs. the rate for all circuits:

Until the last couple years, CA3 was reversing more often; not any more. Here are the criminal and private civil reversals, CA3 and for all circuits:

Nothing too startling. Other than 2006, criminal and civil reversals nationally have been steady. Here’s a comparison of CA3 habeas and 2255 reversal rates vs. all circuits**:

So habeas & 2255 reversals are dropping sharply nationwide. And CA3’s big habeas-reversal drop (red) brings it in line with the national average (green) after a decade of above-average reversing.

Update: I have more analysis of habeas reversal rates in other circuits here.

The source for all this data is here and here — the table I used is B-5, the lines I used are criminal, U.S. prisoner petitions (which I’ve called 2255), private prisoner petitions (which I’ve called habeas), and other private civil.

* I assume the first big CA3 reversal spike — criminal direct appeals in 2006 — is the result of Booker‘s holding in 2005 that Apprendi applies to the Sentencing Guidelines. I don’t know offhand what caused the second CA3 spike, for 2255 appeals in 2009; nationally, the 2255 reversal rate went down that year.

** Update:  The available numbers defy precise answers, and the stats I’ve posted obscure some of the complexity. The stats I gave above for 2255 cases actually are the stats for all US prisoner petitions. That includes 2255s, but, it also includes prisoner civil rights and conditions cases; roughly, 2255s were about 84% of the category nationally. The same caveat applies to the habeas stats I gave; in 2013 habeas cases were about 55% of their category. (Source: 2013 table B-7). Bottom line, it’s no easy thing to pin down causes of the drop in reversals.