Tag Archives: Unpublished opinions

After panel rehearing, Third Circuit reverses course in non-precedential media case

Earlier this week the Third Circuit issued a non-precedential opinion in Cheney v. Daily News, reviving a firefighter’s defamation and invasion-of-privacy claims against a newspaper that used his photo, naming him in the caption, to accompany a news story about a fire department sex scandal he had nothing to do with. The same panel had issued an opinion coming out the other way back in February, then granted panel rehearing and heard oral argument.

I don’t have an intelligent view about the merits here, but I do applaud the panel’s willingness to reverse course. I’m a firm believer in panel rehearing. Modern appellate judges simply don’t have the luxury of agonizing forever over each case. Panel rehearing plays a valuable role in helping courts decide cases efficiently and accurately, but fulfilling that role requires judges confident enough to admit their rare mistakes.

As Justice Felix Frankfurter wrote, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

A Friday-morning shaking of my little fist against perceived injustice

Suppose, dear reader, you are in prison, convicted of murder. You believe you are innocent. You lost your direct appeal, so now you don’t get an appointed lawyer, you’re poor, and you have to prove your innocence by yourself, from prison. Good luck!

Then, a miracle. Another prisoner — call him McDougald — talked to your co-defendant, and your co-defendant admitted to McDougald that he committed the murder, not you, and that he lied at your trial in exchange for a lenient sentence for himself.  McDougald sent you a declaration laying out what your co-defendant admitted. Eureka!

Is McDougald telling the truth? Will the court believe him? Well, McDougald also gave you some corroboration. The co-defendant told McDougald that he left a fingerprint at the murder scene. McDougald also sent you the police forensic report, which the prosecution never turned over to you, confirming that they found the co-defendant’s fingerprints there.

You’re saved! But then, disaster.

Before you can file your blockbuster new evidence, you break a prison rule. As punishment, you’re going to be put in the Restricted Housing Unit. When the guards come to move you, they see that you have four boxes of legal materials, including McDougald’s declaration and the fingerprint report. You’re allowed to have four boxes of legal materials — but when you’re in the RHU, you’re only allowed to have one box.

And now it gets Kafkaesque: The guards tell you that since you have four boxes and RHU prisoners are only allowed to have one box, they’re going to seize all four boxes and destroy them. (Oh, and the cherry on top is they write you up again, for possession of contraband — your legal papers.)

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Now you see why I’m an appellate blogger instead of a crime-story writer.

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The foregoing facts are from Coulston v. Superintendent, a non-precedential per curiam opinion issued yesterday by the Third Circuit panel of Ambro, Shwartz, and Nygaard. After SCI Houtzdale guards seized prisoner Troy Coulston’s files, he filed a civil-rights suit alleging denial of his constitutional right of access to the courts. Prisons don’t get to destroy inmates’ legal papers every time they break a prison rule, right?

To win his access-to-the-courts claim, Coulston had to show that he lost a chance to pursue an underlying claim that was “nonfrivolous” or “arguable,” and that he has no other remedy. Sounds like Coulston, no? But, in his pro se complaint, the remedy Coulston sought was money damages, and the Third Circuit found this fatal to his claim:

Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), he cannot do so at this time. Heck holds that a damages remedy that necessarily implies the invalidity of a criminal conviction is impermissible while that conviction stands. Id. Coulston cannot demonstrate that the loss of his PCRA claim injured him unless he also demonstrates that his PCRA petition had merit, which necessarily would imply the invalidity of his murder conviction. [Cites to three 7th Circuit cases omitted.]

But wait. Does his access-to-the-courts claim “necessarily” imply the invalidity of his conviction? All Coulston has to show is that his underlying claim is “nonfrivolous,” not that it’s meritorious. Non-frivolousness doesn’t necessarily imply invalidity any more than probable cause would necessarily imply guilt beyond a reasonable doubt.

In other words, a finding that Coulston’s underlying claim is nonfrivolous plainly would not entitle him to release. Compare Heck, where the Court expressly relied on the lower court’s view that “if he won his case the state would be obliged to release him even if he hadn’t sought that relief.” That’s what “necessarily” means. Said Heck: “if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.” Hey, Coulston, that’s you.

And ohbytheway what a wacky Catch-22. You can sue the prison for taking away your ability to overturn your conviction, but only if you overturn your conviction first. How exquisite!

At an absolute minimum, given the apparent absence of controlling precedent on whether Heck bars access-to-courts claims for money damages, was this a question appropriate to decide in a non-precedential opinion? (Not just non-precedential, by the way, but also unsigned and issued one day after submission to the panel, without oral argument, and after denying the pro se litigant’s request for counsel despite “acknowledg[ing] the concerns Coulston expresses in his motion for counsel” because “we conclude he should nevertheless be capable of presenting his appeal.”)

Not in my book.

To its credit, the panel tries to soften the blow in a footnote, stressing that dismissals under Heck are without prejudice and explaining that prisoners may avoid dismissal under Heck by seeking injunctive relief instead of money damages.

Well, hooey. If the prison already destroyed Coulston’s files, what good will an injunction do him? And what non-moot injunctive relief would he even have standing to seek? If SCI Houtzdale really does have a policy of immediately destroying prisoners’ legal files, how could any prisoner bring a justiciable injunctive-relief claim? Besides, I see nothing in the opinion to discourage a district court from simply staying Coulston’s injunctive-relief-seeking action and then denying it once Coulston has failed to overturn his conviction.

The footnote also says prisoners alleging denial of access to the courts may ask the courts to extend the time for filing their habeas petitions, citing a district court case. But neither 28 USC 2244(d)(1)(B) nor the vanishingly narrow equitable tolling doctrine give me much confidence any prisoner will be able to benefit from this suggestion, either, even if you assume that more time always cures file destruction.

The footnote concludes, “Heck is thus an obstacle, but not an insurmountable one, to obtaining review of a conviction when a prisoner is denied access to the courts.” I wish I shared the panel’s optimism.

If I’m completely off my rocker here — wouldn’t be the first time — I’d sure be grateful to be set straight.

An interesting divided-panel employment-discrimination case that’s unpublished

I rarely blog about the Third Circuit’s non-published opinions, but the court issued one today which readers may find interesting. The case is Young v. City of Philadelphia Police Dept.

The appeal arises from a Title VII retaliation suit brought by a woman against the Philadelphia Police. The gist of her complaint is that, after she filed a sexual-harassment complaint against a fellow police trainee, the department retaliated by commencing a campaign of disciplinary write-ups for minor violations that she’d never been punished for before her complaint.

Title VII retaliation claims proceed in 3 stages: (1) the plaintiff must make a prima facie case of retaliation, (2) the employer must provide a legitimate non-discriminatory reason for its adverse employment action, and (3) the plaintiff must prove that the proffered explanation was pretextual and retaliation was the real motive. Here the district court granted summary judgment in favor of the employer. It ruled that the plaintiff failed at the first, prima facie stage because she did not show that retaliation was the  but-for cause for her discipline.

All three members of the Third Circuit panel agreed that the district court was wrong to require but-for causation at the first, prima facie stage. The majority opinion observed that the district court’s error was understandable “[b]ecause we have not stated in a precedential opinion that ‘but for’ caustion is not required at the prima facie stage of summary judgment analysis.”

The panel majority (Shwartz joined by Greenaway) affirmed anyway, ruling that the plaintiff failed to carry her burden at the the third, pretext stage. Vanaskie dissented because he believed the plaintiff’s pretext showing created a material issue of fact sufficient to survive summary judgment.

I have a few thoughts:

First, the opinion says the district court was wrong to require but-for causation at the prima facie stage, and it expressly acknowledges that no prior precedential opinion so holds. So why the heck is this opinion unpublished?

Second, the fact that there’s a dissent on the pretext issue adds a least a little to my surprise that it’s unpublished. While there’s certainly no rule that says that divided-panel opinions have to be published, they often are.

Third, the way the panel split here is interesting. I consider Vanaskie to be generally more conservative than Greenaway or Shwartz (see, for example, his recent en banc voting record), but most would consider his position here (favoring an employment-discrimination plaintiff) more liberal.

Finally, on a first read I found Vanaskie’s dissent pretty persuasive. But I’d be surprised if the votes are there for en banc rehearing.

Anyway, interesting case, and happy Friday.

A rare dissent from denial of rehearing en banc

Easy to miss among the unpublished opinions issued today was an order denying rehearing en banc in United States v. Kelly. The panel opinion, also unpublished, is here. It was authored by Greenaway and joined by Scirica and Roth.

Here’s the interesting part: four judges (McKee, joined by Ambro, Smith, and Restrepo) dissented from the denial of rehearing. Any dissent from denial of rehearing is quite rare in the Third Circuit. It’s rarer still given that the panel opinion was both unpublished and unanimous, and that none of the dissenters sat on the panel.

The heart of the issue is how jurors are instructed in drug-conspiracy cases, specifically whether those instructions unjustly expose mere purchasers to criminal liability as conspirators. McKee’s opinion explains his basis for dissenting in this introduction:

I appreciate that the panel’s decision in this case was
dictated by circuit precedent and that my colleagues therefore
felt compelled to affirm the jury’s determination that Kelly’s
membership in the Alford drug distribution conspiracy had
been proven beyond a reasonable doubt. However, I take the
unusual step of filing this opinion sur denial of rehearing to
explain why we have made a mistake by not availing
ourselves of this opportunity to reexamine our jury
instructions in drug conspiracies. I do so even though this
appeal has been resolved in a non-precedential opinion
because our current approach to informing jurors how to
distinguish between a purchaser from a drug conspiracy and a
member of that conspiracy is so meaningless that it presents
the illusion of an objective standard while furnishing no
guidance to jurors who must make this crucial distinction.

Our current standard for channeling a jury’s inquiry in
such prosecutions fails to provide a jury with sufficient
guidance to allow jurors to appropriately differentiate
between customers and co-conspirators. Although some of
our factors may be relevant to this inquiry, the irrelevant
factors I discuss below create the very real danger of placing
a thumb on the conspiratorial side of the scale and thereby
tipping the balance in favor of a conviction for conspiracy
when only a buyer-seller relationship has been established.
Because there is no way of knowing how this jury would have
viewed the circumstantial evidence against Kelly if that
additional weight had not been added to the conspiratorial
side of the scale, I believe this case “involves a question of
exceptional importance,” meriting en banc reconsideration.
Fed. R. App. P. 35(a).

He concludes thus:

Given the extent to which illegal drugs and illegal drug
sales continue to devastate and destroy lives and
communities, I have no doubt that we will have another
opportunity to revisit the factors we use in attempting to
distinguish between purchasers and co-conspirators.
Regrettably, in the interim we also will no doubt expose
numerous purchasers of drugs (even those who purchase
merely to “feed” their own addiction) to the exponentially
greater penalties that attach to being a member of a drug
conspiracy. I therefore take this opportunity to express my
concern that we are failing to afford jurors the guidance they
need and that the law requires in deciding whether evidence is
sufficient to establish guilt beyond a reasonable doubt in
cases such as this. Worse yet, the “guidance” that we do give
jurors is not only less than helpful, it is misleading because it
can be an open invitation to convict mere purchasers of illegal
drugs of the far more serious crime of being a member of a
drug conspiracy. Accordingly, I now echo the concern
expressed by Judge Becker a decade and a half ago and
explain why we should avail ourselves of this opportunity and
grant Kelly’s petition for rehearing.

Thirteen judges participated in the en banc rehearing decision, so the dissenters apparently fell three votes short, with five judges appointed by Democratic presidents not dissenting.

(I say “apparently” because nothing requires a judge who voted in favor of rehearing en banc to dissent from the denial. So it’s theoretically possible that one or two judges voted to grant rehearing but declined to join McKee’s dissent or issue their own.)

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

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

Gee whiz.

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

“Regardless of whether removing the President, ordering a census, and reapportioning Congressional districts are within our jurisdiction, Petitioner has not shown a clear and indisputable right to such drastic relief.”

The sentence that forms the headline of this post is from yesterday’s non-precedential Third Circuit opinion in In re: Natural Born Citizen Party National Committee. Normally I don’t post about unpublished opinions, but it’s Friday and I’m making an exception.

The court rejected a “difficult to understand” mandamus petition from a fringe political party (website highlight: “Become a Pre-1933 USA Citizen agent of the Public US Citizen Debtor Trust Transmitting Utility ‘Non-taxpayer’ for a fee of $1500”) and one of its two declared candidates for U.S. president (there are 1,544 registered presidential candidates this year, including Porcupines R. Spikey, Jr.). The mandamus petition evidently sought a stay of the 2016 election, appointment of special masters to conduct a census, and reapportionment of Congressional districts.

The court warned said candidate — re-warned, actually, since this wasn’t the first such mandamus petition he filed — that “frivolous and vexatious litigation may lead to sanctions.”