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Precision Airmotive — civil — reversal — Shwartz. The district court ruled that the claims were barred under conflict preemption and, alternatively, that the defendants were entitled to summary judgment under state law. Today, a divided Third Circuit panel reversed on both grounds in an opinion that helpfully summarizes the baroque law of preemption.

Broadly speaking, the engine manufacturer argued that the suit should be barred because the design of its engine was dictated by the FAA, and the panel majority rejected that argument based on its view that the manufacturer in fact was able to modify the design. Joining Shwartz was Rendell, with Roth dissenting in part. Thus making this the sadly rare Third Circuit panel comprised entirely of women.

Audio of the argument is here. A link to the questionnaire is here. Matey was nominated by President Trump in April to fill the opening created when Judge Fuentes took senior status in July According to the report, the committee aims to report his nomination to the Senate floor in early December.

Judge David Porter, confirmed by the Senate on October 11, took his judicial oath and received his commission on October He is now officially a Third Circuit judge.

He has the rare privilege of serving alongside the judge he clerked for, Chief Judge Smith. One open seat remains on the court, the one created when Judge Fuentes took senior status in July for which Paul Matey was nominated the same day Judge Porter was. Judge Porter is 52, making him the third-youngest member of the court after Judges Bibas and Krause.

My congratulations again to Judge Porter, and I look forward to seeing him in action one day soon. The announced vote was 50 to Here is an inspiring recent profile of Wolk from the Notre Dame law school website. She also was interviewed in by the Catholic website Crux, here. The profile also notes that she took up running with Judge Hardiman as his clerks are famously wont to do and plans to run a half-marathon with the Judge and her co-clerks this spring. The Third Circuit yesterday granted rehearing en banc in a criminal case, United States v.

Corey Grant , , and set oral argument for February The order is here. Here is my write-up of the now-vacated Grant panel decision, which held that a de facto life sentence of 65 years was unconstitutional under Miller v. The opinion stated that it joined three circuits against one on the de facto -life issue. The Third Circuit this morning granted rehearing en banc in Pellegrino v. TSA , setting argument for February A link to the order is here.

My summary of the now-vacated panel decision, in which the panel majority held that the government is immune from suit for the intentional torts of TSA airport security screeners, is here. Third Circuit Judge Maryanne Trump Barry, a senior judge on inactive status, is named in the article. This is a stunning development. To be honest, like many of you I got swept up in the drama surrounding the Supreme Court nomination of Brett Kavanaugh.

The Third Circuit announced today that it has created a new award, the Joseph R. I am extremely pleased that Vice President Biden has agreed to accept the inaugural award which will bear his name. As a veteran U. Senator and as a former Senate Judiciary Committee chairman, Vice President Biden has for decades been a friend, supporter, and defender of an independent federal judiciary.

Over those years, his commitment to the courts and judges within the Third Circuit has been unflinching. No, I do not. On Friday, the Third Circuit entered orders in the two cases that had been scheduled en banc oral argument on October 10, which I previously discussed here , announcing that the arguments would not happen on that date and that the court would decide at some later date whether to hold arguments in these cases on the next en banc date, February 20, The orders did not provide the reason s for this unusual change of course.

Hard though it is to believe, not every lawyer reads or heeds my advice not to act as counsel for an appeal in which their own conduct is at issue. Superior Court Marshal — civil rights — partial affirmance — Krause. The court also affirmed denial of qualified immunity but ordered dismissal of a gross-negligence claim based on sovereign immunity.

Joining Krause were Roth and Fisher. Rivera-Cruz — criminal — affirmance — Hardiman. The relevant statute 18 U. United States , S. In Koons , a statute set the available sentence completely outside the Guidelines range, by requiring a minimum that was above the top of the range. Here, the statute also took the available sentence completely out of the Guidelines range, but by setting a maximum that was below the bottom of the range.

A debt collector sent out form collection letters stating that forgiveness of debt may be reported to the IRS. One such recipient filed a putative class action suit against the debt collector under the Fair Debt Collection Practices Act. The district court dismissed, but the Third Circuit reversed, cautioning that the convenience of using form letters does not excuse compliance with the FDCPA.

Joining Vanaskie were Hardiman and Shwartz. A school principal was arrested on charges of drunk driving and resigned as principal but later sued alleging constructive discharge. Concluding that her resignation was voluntary, the Third Circuit affirmed dismissal of her suit. Thomas — criminal — partial affirmance — Greenaway. A media company intervened in a criminal case involving aid to a foreign terrorist group, seeking to unseal records from the case including a guilty-plea document and materials involving surveillance discovery.

The district court denied the request on national security grounds. Today, the Third Circuit affirmed as to the plea document, recognizing a presumptive First Amendment right to access but holding that the presumption was overcome here, and remanded for the district court to reconsider redaction of the rest.

Warden — criminal — Fuentes — affirmance. Joining Jordan were Ambro and Hardiman. Senior Deputy Coffey — civil rights — partial affirmance — Roth.

I have no view on whether applying qualified immunity here is a correct application of controlling law, but I believe the outcome here illustrates the awfulness of qualified immunity. Joining Roth were Jordan and Stearns D.

Earlier today, the Third Circuit posted a precedential opinion in Palardy v. Township of Millburn, The court removed the opinion from its website.

Township of Millburn — civil — partial reversal — Siler CA6 by designation. The court joined a circuit minority on the question of whether recent Supreme Court cases limiting speech protections for public employees to matters of public concern also apply to association claims, holding that they do not. Union membership, the court held, is First-Amendment-protected conduct. Joining Siler were Ambro and Scirica. Downingtown Area School Dist. The Third Circuit today sided with a school district in appeal over whether the district court complied with the Individuals with Disabilities Act and two other statutes.

The plaintiff, supported by a bevy of disability-rights amici, argued that the district which also garnered substantial amicus support had failed to develop adequate individual education plans for for an elementary-school student with ADHD, dyslexia, and other disabilities struggling to keep up in school.

Joining Bibas were Greenaway and Restrepo. Glass — criminal — affirmance — Vanaskie. Such motions seem to rarely filed except by the government in criminal cases, which I see as unfortunate and a disservice to the court.

The Third Circuit granted rehearing en banc in two related criminal cases that will be argued on October The cases are US v. Santiago , , and US v. A winning profile of Third Circuit Judge L. A link is here , and the entire profile is well worth your time. One highlight is Judge Restrepo describing his reaction to being nominated for a Third Circuit seat:. Restrepo went on to become a U. Energy Future Holdings — bankruptcy — affirmance — Greenaway. The would-be merger appealed, of course, arguing that the reconsideration motion was untimely and wrong on the merits.

Today, a divided Third Circuit panel affirmed. US — prisoner rights — partial reversal — Krause. In a significant prisoner case, a divided Third Circuit panel today ruled in favor of a prisoner whose suit alleged that USP Lewisburg administators retaliated against him for filing inmate grievances by moving him into a cell with another prisoner known for assaulting his cellmates. The prisoner did not to administratively exhaust that claim with prison officials before filing suit—understandably!

The panel split over a second exhaustion issue. The panel majority held that, with the PLRA as with habeas, a claim is exhausted even if it was not properly presented if it was considered anyway and denied at the highest level of review.

On this point, Judge Scirica dissented. Joining Krause was Fuentes and Scirica in part, with Scirica dissenting in part. Township of Riverdale — civil rights — partial affirmance — Krause. Several state troopers and local police officers participated in arresting a man for drunk driving. The officers — Riverdale police officers Travis Roemmele and Christopher Biro, NJ state troopers Jeffrey Heimbach and James Franchino—all denied that they were the one who kicked the man, and—critically—they all denied having seen who did.

On the bright side:. Such is the case here.

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Gonzalez — criminal — affirmance — Chagares. Both were convicted and sentenced to life in prison. Their mother also was convicted, but she died while the appeal was pending.

They appealed their convictions and sentences on 13 different grounds, but today the Third Circuit affirmed. Joining Chagares were Scirica and Rendell. Today a divided Third Circuit panel ruled against a woman who brought a consumer class-action suit against a baby-powder maker. The plaintiff alleged that perineal use of the baby powder can lead to increased risk of ovarian cancer.

Her legal theory was that she suffered an economic injury by purchasing a product that was unsafe, even if it was only unsafe to other consumers. The majority held that her allegations were legally insufficient: Many of us would be less likely to buy a product marketed as safe that gives lots of other people cancer, and companies presumably know that.

So denying economic recovery here allows companies to profit from hiding the danger, by preventing recovery by the consumers who spent their money on a product they would never have bought had they known. Joining Smith was Chagares, with Fuentes dissenting. Both opinions are outstanding. AG — immigration — affirmance — Bibas. A Cameroonian man in the U. So he moved on with his life, married a citizen over 20 years ago, and had three children, all U. In , the government in its infinite wisdom started trying to deport him for marriage fraud and a crime involving moral turpitude, namely the marriage-fraud false-statement conviction.

Plausible enough, at least, that explaining why it rejected it, to uphold the quarter-century-late deportation of a father of three, warranted more than the single sentence of reasoning the opinion gave it here.

Joining Bibas were Jordan and Scirica. Judges Vanaskie and Krause presented on one panel, with David Fine moderating. I learned a lot, and all the attendees I spoke to afterwards were glad they came. Organizational boosterism aside, if you practice much in the Third Circuit, you really should make every effort to attend programs like this. She acknowledged at length the benefits of holding more arguments: So, she said, there are lots of reasons to have more arguments, and she emphasized that the judges of the court now discuss this issue regularly.

And, she explained, the number of Third Circuit oral arguments has in fact gone up. Finally, Judge Krause said that she expected the number of Third Circuit arguments to continue to increase. He explained that deciding how many arguments to hold was a balancing act. When preparing for each argument, he said, the judges take an extremely deep dive into the case. As it stands now, he said, every lawyer knows that when the court grants argument it is extremely important, that the panel is troubled by the case and not of one mind.

And he believes holding argument in every case would be a mistake, because it would dilute its importance and add to the expense of an appeal for all clients. Judge Vanaskie reiterated that the issue is under active consideration in the court. He said the judges are open to listening.

Five precedential opinions today! Damien Preston was tried for third-degree murder, convicted, and sentenced to 20 to 40 years in prison. But, because this is a habeas corpus case, he lost anyway for opaque reasons.

So, in the end, important good news for future defendants and habeas petitioners, but bad news for Mr. Joining Rendell were Greenaway and Fuentes. When a church fired its pastor, the pastor sued for breach of contract. The district court granted summary judgment on the ground that deciding the claim would violate the Establishment Clause by entangling the court in religious doctrine, and today the Third Circuit affirmed. By contrast, all five lawyers listed in the caption for the parties appear to be men.

Tribune Media — bankruptcy — affirmance — Ambro. Similarly, we cannot say that Younge was wrongfully terminated because WPHL provided a legitimate, non-discriminatory reason for his discharge.

More importantly, its rationale was not pretextual because Younge and Schultz were both fired for engaging in the same conduct. Younge gives us no examples of similarly situated individuals who were disciplined more leniently for the same type of conduct. Without this type of evidence, we cannot rule in his favor.

The Third Circuit affirmed dismissal of a suit brought under the Fair Housing Act by a woman with a disability alleging that her apartment building owners failed to accommodate her disability by rejecting her request to leave a walker in the lobby but offering alternative accommodations: Joining Bibas were Hardiman and Roth.

Not often do you see a page opinion, complete with table of contents, in a case decided without oral argument. The False Claims Act, which allows whistleblowers to sue for frauds against the government, has a provision that prevents FCA actions that rely substantially on allegations already known to the public.

An FCA relator alleged a kickback scheme — that a pharmacy gave below-cost rates to one category of nursing home customers in exchange for favorable treatment of the pharmacy from the homes as to another category of customers. The district court granted summary judgment based on the public-disclosure bar, relying in part on public evidence that the unlawful practice occurred in the industry generally.

Today, the Third Circuit reversed, holding that the suit was not barred by the public-disclosure bar because publicly-known facts did not point to specific fraudulent transactions by this specific pharmacy. Joining Chagares were Vanaskie and Fuentes. Delaware Riverkeeper Network v. Joining Hardiman were Jordan and Scirica. Joining Chagares were Smith and Fuentes.

Harvey en banc — housing — reversal — Greenaway. I provided modest pro bono consulting to counsel for the appellants during the en banc litigation. The en banc author was Judge Greenaway, who had dissented with gusto from the panel ruling. Judge Hardiman flipped, joining the en banc majority after siding with the landlord at the panel stage. Judge Fisher, the panel author, was the lone dissenter. Judges Fisher and Hardiman, the original panel majority, were the only dissenters.

Few observers would have predicted such a lopsided outcome here. My post on the panel ruling is here. Appellate lawyers should note the valuable role that amici curiae played in the en banc litigation here.

Hayes had one supporting amicus brief from advocacy groups at the panel stage, but at both the rehearing stage and the en banc merits stage the amicus support Hayes garnered was impressive, from legal aid offices to the City of Philadelphia and its housing authority.

Vooys , the en banc decided two weeks ago, also had major amicus participation. Clark — criminal — affirmance — Ambro. A police officer stopped a vehicle for traffic violations, questioned the driver, questioned the passenger, pat-down searched the passenger, and, 23 minutes after the stop began, discovered a gun and a marijuana joint on the passenger.

Joining Ambro were Jordan and Vanaskie. A second notable Fourth Amendment development today: The court also held that a district court order compelling arbitiration, dismissing the substantive claims without prejudice, and administratively closing the case is an appealable final order.

Joining Hardiman were Smith and Restrepo. Cox — civil rights and disability — partial reversal — Krause. An intellectually disabled man with mental illness was charged for a crime that may not have occurred, found incompetent to stand trial, and then held without a trial for nearly a decade. Joining Krause were Smith and Greenaway. Highmark — antitrust — reversal — Ambro.

Want a quick master-class on how crisp topic sentences can turn daunting and dry into lucid and engaging? The seller of a medical device, believing it was shut out of the market for it, brought suit on federal antitrust grounds against associated health insurance companies. The District Court dismissed the claim. For the reasons that follow, we reverse its judgment and remand the case for further consideration.

Joining Ambro were Restrepo and Fuentes. Several years later, that same producer launched Empire , the Fox television series about an African American hip hop mogul. The Philadelphia man sued, alleging copyright infringement and other claims. Joining Fisher were Chagares and Vanaskie. State Police — civil rights — partial reversal — Greenberg. Joining Greenberg were Chagares and Fuentes. The Third Circuit is hiring several two-year-term staff attorneys.

A link to the position announcement is here. Plus you come out with circuit insider expertise that the rest of us swoon for. In the Third Circuit, approximately twenty-five attorneys work with a dedicated administrative staff in a highly collegial environment. Term staff attorneys are a vital complement to our established group of supervisory attorneys and career attorneys.

Term staff attorneys are hired at various levels of legal experience, and recent law school graduates work alongside and engage with attorneys with prior judicial clerkship or other professional experience.

Our office has been a launching point for a wide range of careers nationwide, and many of our former staff attorneys have become leaders in public interest, private sector, and academic settings. Superintendent — habeas — affirmance — Greenberg. Two defendants were jointly tried for murder. One of the defendants, Eley, won habeas relief in the Third Circuit in on a claim arising from the admission of certain evidence at the trial.

Today, the Third Circuit affirmed. Eley was freed five years ago, but Mitchell is serving life. Stone Mansion Restaurant — civil — partial affirmance — Chagares. Here, a forum-state defendant successfully got its case out of state court by initially agreeing to accept service instead of formal service but then delaying that service until after it had removed.

Joining Chagares were Jordan and Fuentes. My original post mistakenly described the defendant as non-diverse rather than a forum defendant. Barger — civil rights — reversal — Fuentes. Joining Jordan were Ambro and Vanaskie.

Mayo — criminal — reversal — Jordan. Joining Jordan were Chagares and Fuentes. Bentley en banc — jurisdiction — dismissal — McKee. While nothing is certain, the posture of this order sua sponte and prior to panel ruling strongly suggests that overruling of Bason is likely. En banc grants in similar postures resulted in overrulings in Joyce , Rojas , Al-Sharif , and Quinn in recent years.

Hird — criminal — partial affirmance — Nygaard. Joining Nygaard were Greenaway and Fisher. City of Philadelphia — civil — dismissal — Chagares. And SJC already has held hearings on three four other circuit nominees submitted after Matey. Here again, four circuit nominees and a slew of district nominees announced after him have gotten their ratings. Third, Matey just switched jobs. Matey was nominated for a federal judgeship by President Donald Trump earlier this year, but the confirmation process has not yet begun.

The Third Circuit today issued the first precedential opinion authored by its newest member, Judge Stephanos Bibas. The issue in the appeal was whether a party that bought shares in a bankrupt company after the bankruptcy reorganization was bound by terms of the reorganization plan applicable to shareholders.

Joining Bibas were Smith and Hardiman. City of Newark — civil — affirmance — Chagares. The Third Circuit today denied an appeal brought by Newark taxicab and limo operators seeking to revive their challenge to a deal between the city and ride-sharing giant Uber. The deal freed Uber from regulations that apply to taxi drivers, such as the need to buy a taxi medallion, get a commercial license, and charge rates set by the city.

Joining Chagares were Jordan and Hardiman. The trend certainly appears to be a negative, Judge Smith said, although he acknowledged that the court must consider the cost-effectiveness of oral argument.

The ones more likely to get the oral argument green light are those that could be overturned, tackle an issue of first impression or involve a situation of public interest, versus just private parties. He said he thinks his Third Circuit peers agree that no case truly warranting oral argument is denied it. Chief Judge Smith also addressed the oral-argument-rate issue last year in a story in the Legal Intelligencer, quoted here.

Martin describes the reaction the AALS oral argument report has received from judges:. So if lawyers want the court to hold more arguments, one part of the answer is that we need to make our arguments better.

City of Newark — civil rights — reversal — Hardiman. The Third Circuit today held that police officers were entitled to qualified immunity from suit after shooting an unarmed man 16 to 18 times at the end of a dangerous high-speed car chase when they thought he was armed and unwilling to surrender.

Joining Hardiman were Smith and Bibas. The Third Circuit today held that the Rehabilitation Act, like the Americans with Disabilities Act, generally requires covered actors to accommodate the service animals used by persons with disabilities. The case arose after a school refused to allow a girl with epilepsy to attend school with her service dog trained to detect seizures.

Joining Krause were Ambro and Rendell. Grace — bankruptcy — partial reversal — Ambro. Two decades ago the Supreme Court described the scale of asbestos litigation as elephantine, and it continues on today, with the Third Circuit still playing a central role.

The court agreed with the bankruptcy court that the claims fell within the terms of the injunction, but it remanded to reconsider whether chaneling their claims was allowed by the bankruptcy code. The program also will include a panel of expert appellate practitioners. The first one, in Delaware and featuring Judges Jordan and Roth, was a big hit. The program and lunch are free, but registration by August 31 is required.

To register, email me at Matthew StieglerLaw. Ronnie Peppers was sentenced in to fifteen years of imprisonment for being a felon in possession of a firearm. He argued in District Court in a motion under 28 U. Five holdings lead to our remand. Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction. Fattah — criminal — partial reversal — Smith.

In a page opinion, the Third Circuit today affirmed some, vacated some, and reinstated some of the criminal convictions of former Philadelphia Congressman Chaka Fattah Sr. The facts and procedural history of the opinion alone spanned over 40 pages, longer than most published opinions. Joining Smith were Greenaway and Krause. The Third Circuit issued four precedential opinions today, all unanimous affirmances — three civil, one criminal:. We believe such an entity is what it is—a debt collector.

In an issue of first circuit impression, the Third Circuit held that collecting unpaid highway-tolls bills falls outside the scope of the FDCPA, distinguishing prior circuit caselaw that collecting unpaid water and sewer bills falls within its scope.

Reading Health Systems v. In this case, we address an emerging trend in the brokerage industry. Johnson — criminal — affirmance — Fisher. Joining Fisher were Jordan and Scirica.

Arguing counsel were Ron Krauss for the defendant and Bob Zauzmer for the government. Green — criminal — affirmance — Chagares. In , the Supreme Court held in US v. Johnson that the so-called residual clause of the Armed Career Criminal Act was unconstitutionally vague, and it later held that this rule applied retroactively. The wording of the residual clause of the ACCA statute is similar to the wording of the residual clause of the career-offender provision of the Sentencing Guidelines.

So the prisoner in this case filed a petition within a year of Johnson asserting that he was erroneously classified under the Guidelines as a career offender. The court also distinguished its ruling last year in In re: And, on a typography note, the paragraph formatting in the opinion is inconsistent. Joining Chagares were Greenberg and Fuentes. Arguing counsel were Fritz Ulrich for the prisoner and John Pelletieri for the government. Williams — criminal — affirmance — Roth.

Judge Hardiman concurred in part and concurred in the judgment to argue that the modified categorical approach need not be applied in cases involving RICO predicate offenses. And Judge Fisher concurred, arguing that the defendant validly withdrew consent to the search but that it was supported by probable cause. Arguing counsel were Kimberly Brunson for the federal defender and Donovan Cocas for the government. AG — immigration — reversal — Nygaard.

Joining Nygaard were Chagares and Jordan. AG — immigration — dismissal — Jordan. On Monday, the Third Circuit held that, when a deportation proceeding is transferred out-of-circuit to determine whether the person the government is trying to deport actually is a U. The Third Circuit acknowledged that this holding may conflict with a prior Ninth Circuit ruling.

Boyertown Area School Dist. Today the Third Circuit issued a revised, narrower panel opinion in Doe , the big transgender-bathrooms appeal in which the panel announced its ruling from the bench after oral argument. And, most dramatically, Judge Jordan issued an opinion dissenting from the en banc denial, joined by Judges Chagares, Hardiman, and Bibas. We are tasked with answering two questions: As to the first question, we conclude that Plaintiffs have standing to bring their claims in federal court.

Although a mere procedural violation of the ADA does not qualify as an injury in fact under Article III, Plaintiffs allege to have personally experienced concrete injuries as a result of ADA violations on at least two occasions. Further, Plaintiffs have sufficiently alleged that these injuries were caused by unlawful corporate policies that can be redressed with injunctive relief.

We withhold judgment as to whether those corporate policies are indeed unlawful, as our standing inquiry extends only so far as to permit us to ensure that Plaintiffs have sufficiently pled as much.

As to the second question before us, we conclude that Plaintiffs have failed to satisfy Rule 23 a. Joining Smith are Hardiman and Restrepo. Green IV — criminal — affirmance — Fisher. The officer made the stop for speeding after pacing the vehicle from between a mile and two-tenths of a mile away. After the driver refused to consent to a vehicle search, the officer made the driver wait for 15 minutes for a dog to arrive to sniff the vehicle for drugs.

The court rejected challenges to both the initial stop and the prolongation. Joining Fisher were Greenaway and Nygaard. Adorers of the Blood of Christ v. By statute, the D. Circuit has exclusive jurisdiction over certain decisions by the Federal Energy Regulatory Commission. After FERC approved a natural-gas pipeline through land owned by a religious organization, the religious organization sued to block the project under the Religious Freedom Restoration Act in the Eastern District of Pennsylvania.

The district court dismissed for lack of jurisdiction, and today the Third Circuit affirmed, holding that RFRA does not function as an exception to the exclusive-jurisdiction grant. Joining Greenaway were Smith and Krause. Arguing counsel were J. USA — civil — affirmance — Greenberg. Joining Greenberg were Jordan and Krause.

Arguing counsel were W. Scott Foster for the agency and Suzanne Yurk for the government. USA — civil — affirmance — Greenaway. Coleman — habeas corpus — reversal — Shwartz. I represented the petitioner-appellant in this appeal, along with my superb pro bono co-counsel David Fine. Under habeas corpus law, petitioners who present new evidence of their actual innocence can have federal review of their procedurally barred or untimely constitutional claims if their innocence showing is strong enough.

What if it was available at trial, but counsel failed to discover or present it due to ineffective assistance of counsel? The link in the heading now goes to the amended opinion, the original opinion is here. Arguing counsel were Craig Gottlieb of the city law department for the city and the formidable Irv Ackelsberg of Langer Grogan for the landlords.

It appears to me that counsel argued their own appeal, which as I recently opined in discussing another case is usually a mistake. Secretary — capital habeas — partial reversal — Chagares.

The Third Circuit today held that a capital petitioner was entitled to habeas corpus relief due to ineffective assistance of this penalty-phase trial counsel in failing to investigate and present mitigation. In other words, the Third Circuit found that the claim was meritorious after the district court decided it was so weak that no reasonable jurist could even debate its merit!

TSA — civil — affirmance — Krause. Deciding an issue of first impression, the Third Circuit today held that the federal government is immune from suit for intentional torts committed by TSA airport security screeners. The panel majority held that they do not, interpreting the exception to apply only to officers with criminal law enforcement powers.

Judge Ambro dissented in an opinion that ran 58 pages. Here is the heart of it, from his conclusion cites omitted:. The[ two judges in the majority] look to other statutes for clarification, consult various canons of construction, and also examine legislative history.

Their decision insulates TSOs from all intentional tort claims, leaving plaintiffs without a civil remedy. Absent congressional action, they cannot recover if a TSO assaults them, unlawfully detains them, or unlawfully lodges a criminal complaint against them. Joining Krause was Scirica, with Ambro dissenting. Arguing counsel were Mark Sherer for the government and former Smith clerk Paul Thompson of McDermott Will as court-appointed amicus curiae on behalf of the pro se trial plaintiffs.

The court thanked Thompson for accepting the case pro bono and for the quality of his briefing and argument. Last year, it was Justice Gorsuch; this week it was D. Circuit Judge Brett Kavanaugh. Here are some highlights:. Santorum, who has known Judge Hardiman for decades, said the two-time finalist was wondering if there was a reason he keeps missing out.

He was happy for him. Judge Smith said that in recent weeks, Judge Hardiman had been making sure his judicial duties were up to date, lest he leave his colleagues in the lurch if he left the appeals court abruptly.

I was still frantically revising at 8: Rosen — civil — affirmance — Ambro. The opinion in this case explains how this system produced perverse results: That sounds like good news for everyone … except for those wealthier criminal defendants who before would have been able to just write a check but now faced restrictions on their pre-trial liberty. Joining Ambro were Fuentes and Restrepo.

Sullivan has the story at NJ. CAFA allows class-action defendants to remove larger class actions to federal court, and the local-controversy exception allows class plaintiffs to get some cases back to state court.

Do I read Boston. Sometimes I worry that people think I spend all my time surfing the web instead of practicing law. Bakran also asserts that the AWA violates his right to marriage and is impermissibly retroactive. The AWA does not infringe his marriage right but rather deprives him of an immigration benefit to which he has no constitutional right. Devon IT — civil — reversal — Greenaway. AG — immigration — affirmance — Jordan.

This appeal posed a fascinating tension: Broadly, conservatives today tend to oppose immigration and Chevron deference, while liberals tend to favor both. Joining avowed Chevron foe Jordan were Krause and Greenberg. The district court granted summary judgment in favor of the county, but today the Third Circuit reversed, holding that whether the county had satisfied the Faragher-Elllerth affirmative defense to vicarious liabililty for workplace harassment should be decided by a jury. Judge Scirica wrote a brief separate opinion.

Readers may recall that is the case in which a lawyer fainted during the original oral argument. Joining Jordan were Hardiman and Scirica at least in part, and Scirica concurred. It is posted on Scotusblog, a link is here.

This past year, I ran the judicial nomination-and-confirmation gauntlet. From beginning to end, Justice Kennedy took the time to offer his unflagging personal support and encouragement. And at my investiture earlier this spring, he impressed upon us how each generation must pledge anew its fidelity to the rule of law and do its part to carry out this sacred trust.

When the public looks at justices of the Supreme Court, it sees only august black robes and solemn faces. But those of us who know Justice Kennedy know that he embodies dignity and respect for all, in his care for others no less than in his decisions. I will strive to live up to his example. Sessions that Chevron deference does not apply to an immigration-statute provision involving cancellation of removal.

Back in , the Third Circuit faced the same question in Orozco-Velasquez. The first Courts of Appeals to encounter the question concluded or assumed that the notice necessary to trigger the stop-time rule found in 8 U.

Holder , F. Gonzales , F. Lynch , F. But see Orozco-Velasquez v. Attorney General United State s, F. The case is Gamble v. United States , The Court did not act on a cert petition from a Third Circuit case raising the same issue that it had re-listed 10 times Scotus docket here , but it seems clear that any eventual ruling in Gamble will have an impact here, too.

Albrecht, the Third Circuit case decided as In re: The question presented, per Scotusblog:. Justice Alito is recused from the case. My earlier coverage of the appeal is here and here. David Porter will have to wait at least another week for a Senate Judiciary Committee vote on his nomination to the Third Circuit. Porter originally was scheduled for a committee vote on June 21, but the vote was held over for a week. Today, Porter and Grant both were on the agenda for Judiciary Committee votes on their nomination, but Senator Grassley announced:.

We will not be able to vote on two nominees to the appellate court even though they are ready for votes. It looks to me like he will be the next circuit judge the ABA rates. Supreme Court Justice Anthony Kennedy announced his retirement yesterday morning, and already several sources have reported that Third Circuit Judge Thomas Hardiman is one of the leading candidates to be nominated by President Trump to replace him.

He ultimately chose Gorsuch to fill a vacancy created by the death of former Justice Antonin Scalia. Michael Fisher said Wednesday. Fisher, who said he is close friends with Hardiman, said the two have never had any discussions on social issues. Improbably, Dominguez did not kill anyone, and instead he sued Yahoo under the Telephone Consumer Protection Act, which makes it unlawful to use an autodialer to send non-emergency text messages.

The case was decided without oral argument. A link to those responses, which run 38 pages, is here: Porter Responses to QFRs.

After one pass, I see nothing in his responses that looks at all confirmation-threatening. His answers to Booker's questions about implicit bias impressed me. E One — civil — affirmance — Smith. Not in my view. Today, it happened again, and again it went badly for the side whose lawyer stayed on.

It should not be condoned. Joining Smith were Hardiman and Roth. Louis for the appellee. Judge Vanaskie was a star defensive back for the Lycoming Warriors football team before graduating in I was fortunate enough to play for Frank Girardi. He was the defensive backs coach when I came there as a freshman and as luck would have it, I was moved to defensive back.

I was supposed to be a linebacker but I was undersized for that. He started me in my third game as a freshman. He got me started and I had great coaches and great teammates throughout. I also had great professors. I just had great experiences there. Joining McKee were Shwartz and Nygaard. AG — immigration — reversal — Krause. In , the Third Circuit issued a blockbuster immigration ruling in Castro v. US DHS , holding that federal courts lack jurisdiction to hear a challenges to removal brought by a group of women and children caught, on US soil, shortly after entering the US, and that this statutory denial of jurisdiction did not violate the Suspension Clause.

Today, just two years later, a different Third Circuit panel heard a second appeal brought by four of the children and their mothers who were among those denied a forum in Castro. Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile SIJ status—a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements.

Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal?

We conclude that it does. How broadly available is SIJ status? Joining Krause were Ambro and Scirica. Ramos — criminal — reversal for government — Roth. Joining Roth were Smith and Hardiman.

Arguing counsel were Robert Zauzmer for the government and Arianna Freeman for the defendant. Welshans — criminal — partial reversal — Restrepo. As to the sentence, the panel majority held that the sentencing court erred in applying the Sentencing Guidelines enhancement for obstruction of justice because his acts moving computer files into the recycling bin when he was told police were on their way were contemporaneous to his arrest and did not materially hinder the investigation.

The majority also held that the government waived the material-hinderance point by first raising it at oral argument. Joining Restrepo were Ambro in full and Fuentes as to the conviction; Fuentes dissented on the sentencing reversal. Arguing counsel were Renee Pietropaolo for the defendant and Laura Schleich Irwin for the government. Regionalcare Hospital Partners — civil — affirmance — McKee. After examining her, ER personnel discharged the woman and told her to go to a different hospital.

The nurse at Southwest Regional in charge of evaluating patient care and addressing medical errors believed that discharging the woman violated a federal law against hospital-patient dumping known as EMTALA. Today, the Third Circuit affirmed the ruling against the fired nurse. Anyhow, a tough case. Joining McKee were Smith and Restrepo.

Now, we may also hear about another nomination to the Third Circuit, and how there are purportedly differences in how the blue slip was treated then.

But the issue there was the Leahy-Thurmond rule under which the Senate generally stops confirming judicial nominees around the mid-summer in a presidential election year. Chairman Grassley gave our colleagues from Minnesota almost seven months to return blue slips from Judge Stras. President Obama nominate Rebecca Hayward [sic] on March 15, Giving the senators from Pennsylvania the same amount of time as the senators from Minnesota would have meant a hearing would not have been held until the late summer at the earliest.

So the characterization of this as a blue-slip issue, as Chairman Grassley has explained before, is inaccurate. I did not attend the hearing in person but I watched it live-streamed online. Chief Judge Smith who Porter clerked for on the district court attended. JCN has now scrubbed its website of the materials in question. Buzzfeed reporter Zoe Tillman was at the hearing, and her informative live-tweet thread is here. Shover — prisoner civil rights — reversal — Rendell. The Third Circuit today issued an important new prisoner-rights ruling, holding that a single act of sexual abuse without force or injury can violate the Eighth Amendment:.

We write today to state in plainest terms that it does. Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact. The court also reversed the dismissal of an excessive-force claim against a supervisor who allegedly slammed the prisoner into a wall when he protested.

Joining Rendell were Chagares and Scirica. And as was Rebecca Haywood. Bush nominee Shalom Stone was rated Qualified, all of G. Andy Simpson , a fine Virgin Islands appeals lawyer and President-elect of the Third Circuit Bar Association, offers this thoughtful response to my post:.

Three circuit stalwarts, Richard A. All received majority Q, minority NQ ratings for their circuit nominations.

I basically agree with Andy. Porter still has not received a rating from the ABA. Kalb — criminal — affirmance for defendant — Scirica. In this case, the district court ordered suppression and, more than 30 days later, the government filed a motion to reconsider, which the defendant argued was untimely but the district court denied on the merits. Joining Scirica were Jordan and Hardiman. The argument audio is here. Sessions — immigration — affirmance — Shwartz.

Two months later, after the mandate had issued, the government filed a motion to publish, which the panel granted. Motions to publish are an under-utilized tool, in my view. Foster — criminal — affirmance — Jordan. The Third Circuit today affirmed two criminal convictions, rejecting five different challenges to their convictions and sentences: Joining Jordan were Shwartz and Krause.

Shaw — criminal — affirmance — Restrepo. The court rejected challenges to the sexual-assault instructions splitting with the Tenth Circuit , the sexual-assault sufficiency, two evidentiary challenges, and a speedy-trial claim.

Joining Restrepo were Smith and McKee. Back in November of last year, the Senate sent reinforcements to the Third Circuit in the form of Judge Stephanos Bibas, the first White House pick to fill a vacancy on that bench. Two more are waiting in the wings — Paul Matey and David Porter, both strict constructionists who are waiting for their turn on the fast track of Sen. But Judge Jordan emphasized that oral argument is something unique, a highly stylized form of communication like kabuki theater.

Instead, he used kabuki as an example of a performance art with conventions that are arcane and rigidly observed and that require years of disciplined training for performers to master. So understood, I think his kabuki metaphor for oral argument is illuminating in many ways.

Let me suggest two, one concrete and one more abstract. First—and this is one of the points Judge Jordan was making—when a judge begins to speak, you stop. Even mid- important, carefully prepared, ever-so-devastating -syllable. For many lawyers, that is not normal conversation. We talk over each other all the time: One landmark study showed that, in conversations between men and women, men cut in 46 out of 48 times. Another study found that men are three times as likely to interrupt women as they are to interrupt other men.

Sadly, these gender dynamics play out at oral argument, too. For example, while I was preparing for my last argument I listened to one Third Circuit argument that was so smart and elegant, spectacular in every way but one: The right tone for appellate oral argument is a challenge to define. Be crisp and prepared but not wooden. Be reasonable but not wishy-washy. Be persuasive but not too emphatic.

Four parts advocate, one part law professor, add just a dash of actor. Most oral advocates, in my view, err on the side of over-certainty. We argue as if the law is all obvious, the facts on each point overwhelming. They want lawyers who know the facts and the law cold who are willing to help them grapple with the hardest parts of the case. Hitting the right tone for persuasive oral argument is like suppressing your impulse to talk over a judge. The Third Circuit panel today issued a judgment in Doe v.

A link is here. As I posted here earlier, the panel heard oral argument this morning and ruled from the bench shortly after. The judgment states that a formal opinion will be issued later but the judgment will issue now.

A panel of the Third Circuit heard oral argument today, held a brief recess, and then reconvened and announced that it would affirm the ruling below. The case involved access by transgender school students to the bathroom of their choice — that is, whether a school district could allow transgender students to use the bathroom corresponding with their gender, not their sex at birth. The district court ruled in favor of the school district. Andy Simpson also pointed me to a Virgin Islands appeal where Chief Judge Becker read an opinion from the bench after argument, In re: Circuit Judge Theodore McKee said he and his colleagues — Judges Patty Shwartz and Richard Lowell Nygaard — recognized how important the case was to students at Boyertown Area Senior High School and wanted to resolve the issue before the students at the heart of the case, many of them seniors, graduated later this month.

The written judgment, issued the same day as the argument, is here. The audio of the oral argument is here , and the ruling audio is here. The Third Circuit today issued an updated version of its internal operating procedures, link here , along with an announcement describing the update, link here. The gist of it is that the court has amended the IOPs to clarify the standard the court applies when deciding whether to grant initial en banc hearing — that is, en banc review before any panel decision.

If you want to get better at oral argument, how do you do it? But one of the best ways to improve at oral argument is to listen critically to good arguments. The Third Circuit posts audio of all of its arguments online low-quality audio , alas , and video of a handful, but you have to know which cases to look for. Cheryl Krause — Mitchell Partners v. Stephanos Bibas — Tapia v. Lisa Freeland — US v. Thompson — argument — opinion. Lansdale — argument — opinion. Robert Zauzmer — US v. Kemp — argument [starts at Governor en banc — argument — opinion.

James Martin — Avaya v. Telecom Labs — argument — opinion. Chip Becker — L. School Dist — argument [starts at Lisa Freeland — In re: Hoffner — argument — opinion. Peter Goldberger — US v.

Hird — video [starts at 9: James Martin — Grider v. Keystone Health — argument — opinion. Nancy Winkelman — Huertero v. US — argument — opinion. Smithkline Beecham — argument — opinion. Ellen Brotman — US v. Richardson — argument — opinion.

Ilana Eisenstein — US v. Cooper — argument [starts at Jonathan Feinberg — US v. Bennett — argument — opinion. Rosario — argument Arianna Freeman — Brown v. Superintendent — argument — opinion. Lisa Mathewson — US v. HIrd — video [starts at Bruce Merenstein — US v. Fattah — video [starts at Concepts in Health — argument. Andrew Simpson — Sala v. Hawk — argument — opinion. John Elwood — USA v. EME Homer — argument [starts at Roy Englert — In re: Tribune Media — argument — opinion.

David Frederick — In re: Zoloft — argument — opinion. Deepak Gupta — Evankavitch v. Green Tree — argument — opinion. Alan Gura — Binderup v. AG — argument [starts at Orin Kerr — US v. Auernheimer — argument — opinion. Christopher Landau — In re: Jevic Holding — argument [starts at Patricia Millett — In re Nortel Networks — argument [starts at Andrew Pincus — DE Coalition v. Strine — argument — opinion.

Carter Phillips — Gonzalez v. Owens Corning — argument [starts at Precision Airmotive — argument — opinion. Here is the en banc argument. The Supreme Court this morning denied certiorari in Alcon Laboratories v. On Thursday, the Third Circuit announced that it is adopting for at least one year the new hiring plan for law clerks, as I posted here.

Here are some more details:. For students who entered law school in graduating class of Judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers before June 17, For students who enter law school in graduating class of Judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers before June 15, A judge who makes a clerkship offer will keep it open for at least 48 hours, during which time the applicant will be free to interview with other judges.

This is a one-year pilot plan. Participating judges will reconsider their participation after one year. The en banc Third Circuit heard oral argument yesterday morning in Hayes v. Harvey , a significant public-housing-law appeal. My prior posts on Hayes are here and here. I also just noticed that the Court has posted on its website video of four April arguments.

Judges Chagares, Vanaskie, and Fisher heard all four. Two are federal criminal appeals and the redoubtable Bob Zauzmer argued them both for the government arguing two cases the same day would be my demise.

These two opinions were issued yesterday, May 16, but I had a big oral argument in the afternoon and was too beat to summarize them. The Third Circuit ruled in favor of a consumer plaintiff in a credit-card dispute with Bank of America. But over a month later Krieger opened his mail to some particularly unwelcome additional information: BANA was rebilling him for the charge.

He disputed it again, this time in writing, but after BANA replied that nothing would be done, he paid his monthly statement and then filed this action, alleging BANA violated two consumer protection laws: The court disagreed with two other circuits that viewed the issue as controlled by statutory language, but in the end agreed with all circuits to reach the issue that the clauses were enforceable.

The court left open the possibility that a would-be assignee could instead proceed in a power-of-attorney capacity, but held that here that argument was waived. The opinion is crisp and clear: The opinion was unanimous with the entire active court plus Judge Fisher. Video of the argument is here. This case comes from the Third Circuit, where it was captioned In re: The Third Circuit opinion is here , my summary is here.

So I suspect this opinion was posted in error. Joining Roth were McKee and Ambro; Ambro also concurred separately to note that in rem suits provide a way to impose liability and that COGSA requires that shippers have a means to collect damages against the value of the ship.

President United States — civil — reversal — Hardiman. Reversing under abuse-of-discretion standard, the Third Circuit held that the employer, a Pittsburgh retirement home operated by a Catholic non-profit corporation, had a sufficient interest in the case and that, although they sought the same relief as the President of the United States, the Department of Health and Human Services, the Treasury Department, and the Labor Department, their interests were not adequately protected by the existing parties.

Zubik likewise tasked the government with serving two related interests that are not identical: The religious exemption IFR applies not only to religious nonprofit corporations like the Little Sisters, but also to closely held and publicly traded for-profit corporations. And the moral exemption IFR protects parties for reasons unrelated to religion.

The religious and moral interests of these entities are numerous and varied. See Kleissler , F. A petition for rehearing en banc seems inevitable. Joining Hardiman were Bibas in what I believe is his first vote in a precedential appeal and Roth. James — criminal — affirmance — Smith.

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