Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, July 16, 2001


Recent Third Circuit Ruling Will Subject Many Pennsylvania Common-Law Arbitration Awards To Increased Federal Court Scrutiny

By Howard J. Bashman
Monday, Jul 16, 2001

Experienced appellate practitioners know that an advantageous standard of review can be crucial to winning on appeal. Orders granting motions to dismiss on the pleadings and motions for summary judgment are among the most often reversed on appeal, because appellate courts apply a non-deferential plenary review. By contrast, an appeal that challenges a judge's findings of fact at a non-jury trial, or argues that a jury's verdict is against the manifest weight of the evidence, rarely will succeed, because the applicable standards of review require an appellate court to show great deference to those types of decisions.

Perhaps the most deferential of all standards of review is the one that Pennsylvania law applies to a common-law arbitration award. The Supreme Court of Pennsylvania has ruled that the grounds for denying enforcement of a common-law arbitration award are "extremely limited." Newspaper Guild of Greater Phila. v. Philadelphia Daily News, Inc., 164 A.2d 215, 220 (Pa. 1960). Pennsylvania's highest court has further explained that "arbitrators are the final judges of both law and fact, and an award will not be reviewed or set aside for mistake in either." Patriotic Order Sons of Am. v. Hartford Fire Ins. Co., 157 A. 259, 262 (Pa. 1931). Indeed, the Supreme Court of Pennsylvania has ruled that "an arbitration award is conclusive even if it has the effect of varying the terms of the contract" and even if the award is "blatantly at odds with the contract involved." Runewicz v. Keystone Ins. Co., 383 A.2d 189, 192-93 (Pa. 1978).

By contrast, the Federal Arbitration Act (FAA), which governs contracts containing an arbitration provision if the contract "evidenc[es] a transaction involving commerce," 9 U.S.C. § 2, gives a reviewing court greater leeway to set aside or alter an arbitration award. Under the FAA, a court may set aside an arbitration award that manifestly disregards the law or fails the test of fundamental rationality. Roadway Package Sys., Inc. v. Kayser, No. 99-1907, 2001 WL 629276, at *4 n.2 (3d Cir. June 7, 2001). In its recent opinion in Roadway, the Third Circuit agreed that Pennsylvania's "vacatur standards for common law arbitration awards are so much narrower than the FAA's."

In Roadway, the Third Circuit finally resolved a thorny arbitration-related standard of review question that the court first noted some fourteen years ago in Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089, 1094-95 & n.4 (3d Cir. 1987). Put simply, the question is this: where a contract evidencing a transaction involving commerce contains both an arbitration clause and a generic choice of law provision stating that Pennsylvania law governs the contract, is an arbitration award due the all but complete deference provided under Pennsylvania law, or is the award subject to a lesser degree of deference under the FAA?

The answer the Third Circuit supplied last month may come as a surprise. The court held that the generic choice of law provision was insufficient to establish the parties' intent to select Pennsylvania's highly deferential standard of review applicable to common-law arbitrations. Thus, the FAA's less deferential standard of review applied, the Third Circuit held, and under that standard of review the federal appellate court set aside the arbitrator's award because it appeared plainly to violate the terms of the parties' agreement.

Importantly, the Third Circuit ruled in Roadway that the FAA permits parties to agree in the contract between them that any arbitration award is subject to Pennsylvania's standard of review, rather than the FAA's. But, the court held, a generic choice of law provision stating that the contract "shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania" was insufficient to evidence such an agreement. Rather, the court explained, parties that wish to opt for Pennsylvania's standard of review instead of the FAA's should include in their contract language providing that "any controversy shall be settled by arbitration in accordance with the terms of the Pennsylvania Uniform Arbitration Act."

Putting aside the readily apparent irony that the Third Circuit has invoked the FAA, a statute that reflects "a liberal federal policy favoring arbitration," Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), to make it easier for a court to set aside the result of an arbitration proceeding, the importance of the Third Circuit's recent ruling in Roadway can hardly be overstated. As the panel's opinion explains, the question whether parties may ever opt-out of the FAA's standard of review was already the subject of a split among the U.S. Courts of Appeals. In answering that question in the affirmative, the Third Circuit sided with the vast majority of federal appellate courts to have addressed that issue. The opinion further explains that another circuit split exists over whether a generic choice of law provision sufficiently evidences the contracting parties' intent to elect the chosen state's standard of review in lieu of the FAA's. Greatly complicating this second circuit split is the fact that it arises from doubt about how to reconcile two apparently conflicting U.S. Supreme Court decisions that give vastly different effects under the FAA to contractual choice of law provisions.

In Volt Info. Scis., Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468 (1989), the Supreme Court concluded that the FAA did not preempt a California law that permitted a state court to stay arbitration pending the resolution of related litigation involving third-parties who were not bound by an agreement to arbitrate. Volt arose in the California state court system, and before the case reached the U.S. Supreme Court a California state court had ruled that the parties' forum selection clause mandating application of California law demonstrated the parties' intent to apply California's body of arbitration law. The U.S. Supreme Court in Volt stated that the California state court should have the last word on whether the contractual forum selection clause sufficed to invoke California's body of arbitration law.

Exactly six years to the day later, the Supreme Court announced its ruling in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995), by means of an opinion that charitably can be said to be in some tension with the Court's earlier ruling in Volt. In Mastrobuono, customers filed a claim in arbitration against their securities broker. The contract between these parties contained a choice of law provision specifying that "[t]his agreement . . . shall be governed by the laws of the State of New York." After the arbitration panel returned an award that included punitive damages in the customers' favor, the broker sought judicial review in federal district court, arguing that New York's law of arbitration prohibited arbitrators from awarding punitive damages. Both the district court and the court of appeals agreed and vacated the arbitrator's award of punitive damages. The Supreme Court, however, disagreed and reversed, holding that the choice of law provision failed to demonstrate with sufficient clarity that the parties had intended to invoke New York's law of arbitration, which would have prohibited the award of punitive damages.

Reasonable minds can certainly disagree over how best to harmonize the Supreme Court's rulings in Volt and Mastrobuono. In Roadway, Chief Judge Edward R. Becker's majority opinion for himself and Circuit Judge Richard L. Nygaard concluded that Mastrobuono established that a generic choice of law provision is insufficient to demonstrate the parties' agreement to be bound by the designated state's law governing review of arbitration awards. In so concluding, Chief Judge Becker's opinion closely followed the reasoning found in Justice William J. Brennan's dissenting opinion in Volt. Circuit Judge Thomas L. Ambro, who issued a separate opinion in Roadway concurring only in the judgment, argued that the Pennsylvania choice of law provision sufficed to demonstrate that the parties wished to be bound by Pennsylvania's stricter standards for setting aside a common-law arbitration award. Judge Ambro's argument in this respect followed Justice Clarence Thomas's dissenting opinion in Mastrobuono.

One very interesting question that arises in the aftermath of the Third Circuit's Roadway decision is whether Pennsylvania state courts will agree that a contractual choice of law provision selecting Pennsylvania law in a contract requiring arbitration of disputes and evidencing a transaction involving commerce fails to demonstrate the parties' intent that the arbitration award be reviewed under Pennsylvania law rather than under the FAA. The U.S. Supreme Court has ruled that the FAA applies in both federal and state courts. Southland Corp. v. Keating, 465 U.S. 1, 15-16 (1984). Yet, a search of Westlaw's "Pennsylvania cases" database conducted in late June 2001 revealed only nine reported Pennsylvania state court opinions that mentioned the "Federal Arbitration Act," which Congress enacted in 1925.

The U.S. Supreme Court's ruling in Volt establishes that Pennsylvania state appellate courts have the discretion to rule that a contract's Pennsylvania choice of law provision suffices to demonstrate the parties' intent that an arbitration award be governed by the very restrictive Pennsylvania common-law rules of arbitration review. The Third Circuit's ruling in Roadway does not bind Pennsylvania state courts; rather, state courts have an independent duty to apply federal law as they understand it, and state courts are only bound by the U.S. Supreme Court's pronouncements of what federal law is. Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J., concurring) ("neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation"). While the U.S. Supreme Court has observed that "Congress would not have wanted state and federal courts to reach different outcomes about the validity of arbitration in similar cases," Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 272 (1995), precisely that result would occur if Pennsylvania state courts disagree with the Third Circuit's decision in Roadway.

Until the state appellate courts of Pennsylvania make clear whether they will follow the Third Circuit's holding in Roadway, parties that are on the losing side of an arbitration award will greatly prefer to have their challenges to the award heard and decided by a federal court. The FAA, however, does not itself confer subject matter jurisdiction on federal courts, and thus only arbitration challenges in which diversity of citizenship or federal question jurisdiction exists can be filed in or removed to federal court. Kaplan v. First Options of Chicago, Inc., 143 F.3d 807, 814 (3d Cir. 1998). At least one thing is certain in the aftermath of Roadway -- the FAA is about to be litigated much more often in Pennsylvania state court actions challenging common-law arbitration awards.

This article is reprinted with permission from the July 16, 2001 issue of The Western Pennsylvania Legal Intelligencer © 2001 NLP IP Company.

Monday, July 09, 2001


Report Card from the U.S. Supreme Court: How the Third Circuit and Pa. Appellate Courts Fared in the October Term, 2000

By Howard J. Bashman
Monday, July 9, 2001

The Supreme Court of the United States, in its just-completed October 2000 Term, issued a total of 85 opinions, 77 of which were signed and eight of which were per curiam.

Five of those 85 decisions involved cases that reached the Supreme Court from the Philadelphia-based U.S. Court of Appeals for the Third Circuit. In two of those five cases, the Supreme Court affirmed. In the remaining three, the Supreme Court reversed.

In 11 other cases, the Supreme Court explained that it granted review to resolve a conflict among appellate courts that included the Third Circuit. In five of those 11 cases, the Supreme Court ruled in favor of the Third Circuit's approach. In the remaining six cases, the Supreme Court rejected the Third Circuit's approach.

None of the U.S. Supreme Court's 85 decisions involved cases that reached the high Court directly from Pennsylvania state appellate courts. But the U.S. Supreme Court disapproved of Pennsylvania state appellate court decisions three times in its October 2000 Term.

Third Circuit Affirmed: The Third Circuit's most newsworthy affirmance came in Bartnicki v. Vopper, 121 S. Ct. 1753 (2001). There, the Supreme Court ruled 6-3 that it would violate the First Amendment to hold liable under federal and Pennsylvania anti-wiretapping laws defendants who had lawfully received and broadcast an illegally recorded cellular telephone audiotape that concerned matters of public interest. Justice John Paul Stevens wrote the majority opinion. Chief Justice William H. Rehnquist wrote a dissenting opinion, in which Justices Antonin Scalia and Clarence Thomas joined. Justice Stephen G. Breyer wrote a concurring opinion, joined by Justice Sandra Day O'Connor, that limited the Court's holding to the specific facts of this case.

The Supreme Court's ruling affirmed the Third Circuit's decision in Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999). Circuit Judge Dolores K. Sloviter wrote that decision, in which Circuit Judge Robert E. Cowen joined. District Judge Louis H. Pollak dissented from the ruling.

The other decision in which the Supreme Court affirmed a ruling of the Third Circuit was Booth v. Churner, 121 S. Ct. 1819 (2001). There, the Supreme Court unanimously agreed, in an opinion by Justice David H. Souter, that the federal Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies against prison guards who allegedly assaulted him even where the administrative process does not permit the award of money damages, and the prisoner seeks only money damages in his lawsuit, so long as the administrative tribunal can take some responsive action.

The Supreme Court's ruling in Booth represented something of a double victory for Third Circuit Chief Judge Edward R. Becker. The Supreme Court directly affirmed his opinion in Booth v. Churner, 206 F.3d 289 (3d Cir. 2000), in which Circuit Judge Theodore A. McKee joined, with visiting Ninth Circuit Judge John T. Noonan, Jr. dissenting on other grounds. The holding that the Supreme Court affirmed in Booth was first announced by Chief Judge Becker in Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000). Circuit Judges Samuel A. Alito, Jr. and Maryanne Trump Barry joined in the Nyhuis ruling.

Third Circuit Reversed: The three cases in which the Supreme Court reversed the Third Circuit were somewhat less newsworthy. In Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001), the Supreme Court unanimously held that federal law preempted state law "fraud on the Food and Drug Administration" claims brought by orthopedic bone screw recipients. Chief Justice Rehnquist wrote the opinion reversing the Third Circuit's decision in In re Orthopedic Bone Screw Prods. Liab. Litig., 159 F.3d 817 (3d Cir. 1998). Circuit Judge Walter K. Stapleton wrote that decision, in which Circuit Judge Marjorie O. Rendell joined. Judge Cowen dissented.

The Third Circuit's final two reversals came in habeas corpus cases that arose from the Pennsylvania state court system. In Lackawanna County Dist. Attorney v. Coss, 121 S. Ct. 1567 (2001), the Supreme Court ruled 5-4 that a convicted criminal cannot argue that his sentence should not be enhanced based on the alleged unconstitutionality of a prior conviction unless the defendant lacked counsel in the earlier case. Justice O'Connor wrote the majority opinion; Justices Stevens, Souter, Ruth Bader Ginsburg and Breyer dissented. The Supreme Court's ruling reversed the Third Circuit's decision in Coss v. Lackawanna County Dist. Attorney, 204 F.3d 453 (3d Cir. 2000) (en banc). Circuit Judge Ruggero J. Aldisert wrote the Third Circuit's majority opinion. Circuit Judge Richard L. Nygaard wrote a dissenting opinion, in which Circuit Judge Jane R. Roth joined, disputing whether Coss's prior conviction had any effect whatsoever on his current sentence. Justice O'Connor's opinion agreed with Judge Nygaard's dissent and stated that the Third Circuit majority's contrary conclusion was "clearly erroneous."

The second habeas case in which the Supreme Court reversed the Third Circuit was Fiore v. White, 531 U.S. 225 (2001) (per curiam). Fiore and a co-defendant named Scarpone were convicted of violating a Pennsylvania law that made it a crime to operate a hazardous waste facility without a permit. In fact, they possessed a permit and had merely exceeded its scope. Fiore appealed from his conviction to the Superior Court of Pennsylvania, which affirmed, and then unsuccessfully sought discretionary review in the Supreme Court of Pennsylvania. The Commonwealth Court of Pennsylvania thereafter decided Scarpone's appeal and overturned his conviction, because the defendants possessed a permit. The Pennsylvania Supreme Court granted review in Scarpone's case and affirmed, but that Court (for reasons that defy explanation) rebuffed Fiore's later attempts to have his conviction set aside.

Fiore then filed a habeas corpus petition in the U.S. District Court for the Western District of Pennsylvania. The petition argued that the Supreme Court of Pennsylvania had held, in Scarpone's case, that the conduct for which Fiore had been convicted was not a crime. District Judge Gary L. Lancaster granted Fiore's habeas petition, but the Third Circuit reversed. Judge Alito's opinion in Fiore v. White, 149 F.3d 221 (3d Cir. 1998), held that federal law did not require that the Supreme Court of Pennsylvania's decision be given retroactive effect to benefit Fiore. Judge Stapleton and visiting District Judge Milton I. Shadur joined that decision.

After the U.S. Supreme Court granted review, it certified a question to the Pennsylvania Supreme Court asking whether that court's ruling in Scarpone's case announced a new rule of law or simply declared the longstanding meaning of the criminal statute at issue. The Pennsylvania Supreme Court, in a unanimous decision by Justice Sandra Schultz Newman, ruled that its decision in Scarpone's case "furnishes the proper statement of law at the date Fiore's conviction became final." Fiore v. White, 757 A.2d 842 (Pa. 2000).

Based on that answer to the certified question, the U.S. Supreme Court reversed the Third Circuit's judgment. The Supreme Court's unanimous per curiam opinion explained that "the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit." The answer to that question, of course, was "no."

Third Circuit Approved: In 11 other cases that did not arise from the Third Circuit, the Supreme Court expressly noted that the Third Circuit was involved in the circuit splits at issue. In five of those cases, the Supreme Court approved of the Third Circuit's holdings.

In INS v. St. Cyr, 121 S. Ct. 2271 (2001), the Supreme Court ruled 5-4 that Congress had not deprived federal courts of habeas corpus jurisdiction to review the U.S. Attorney General's conclusion that lawfully admitted aliens convicted of a crime are no longer eligible, under laws enacted after they were convicted, for discretionary relief from deportation. The Court further held that aliens who pled guilty to a crime at a time when they would have been eligible for discretionary relief from deportation remained eligible for such relief. Justice Stevens wrote the majority opinion; Chief Justice Rehnquist and Justices O'Connor, Scalia and Thomas dissented. The St. Cyr ruling approved of two Third Circuit decisions written by Judge Sloviter: Liang v. INS, 206 F.3d 308 (3d Cir. 2000), and Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999). Judges Roth and Cowen joined in the Liang opinion, and Circuit Judge Anthony J. Scirica joined in, and Judge Alito dissented from, the Sandoval opinion.

The other 5-4 decision in which the Supreme Court ruled in favor of the Third Circuit's side of a conflict was Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302 (2001). Justice Anthony M. Kennedy wrote the majority opinion, and Justices Stevens, Souter, Ginsburg and Breyer dissented. The Supreme Court agreed with the Third Circuit that only employment contracts of transportation workers, and not all employment contracts generally, are exempt from coverage under the Federal Arbitration Act. In so ruling, the Supreme Court approved of the Third Circuit's ruling in Tenney Eng'g v. United Elec. Radio & Mach. Workers, 207 F.2d 450 (3d Cir. 1953) (en banc). Former Circuit Judge Albert Branson Maris wrote the majority opinion in that case.

In Cedric Kushner Promotions, Ltd. v. King, 121 S. Ct. 2087 (2001), the Supreme Court ruled unanimously in an opinion by Justice Breyer that the president and sole shareholder of a corporation could be a "person" liable under the Racketeer Influenced and Corrupt Organizations Act even if the only RICO enterprise alleged was his corporation. In so ruling, the Supreme Court approved the Third Circuit's holding in Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258 (3d Cir. 1995). Judge Becker wrote the opinion in Jaguar Cars, in which Judge Alito and District Judge Anita B. Brody joined.

In Duncan v. Walker, 121 S. Ct. 2120 (2001), the Supreme Court ruled 7-2 that a federal statute that tolls the time in which a federal habeas corpus application must be filed while "State post-conviction or other collateral review" is being sought did not also afford tolling while an earlier federal court habeas petition had been pending. Justice O'Connor wrote the majority opinion, from which Justices Ginsburg and Breyer dissented. Duncan approved the Third Circuit's ruling in Jones v. Morton, 195 F.3d 153 (3d Cir. 1999), which Judge Scirica wrote and in which Judge Stapleton and District Judge Clifford Scott Green joined.

The final decision in which the Supreme Court sided with the Third Circuit is such a complicated tax case that all persons other than corporate tax attorneys should skip ahead to the next paragraph. For those still here, in Gitlitz v. Commissioner, 531 U.S. 206 (2001), the Court ruled 8-1 that a Subchapter S corporation's shareholders can increase their basis in the corporation's stock by the amount of the corporation's discharge of indebtedness excluded from gross income. And, that increase in basis occurs before the taxpayers are required to reduce the corporation's tax attributes. Justice Thomas wrote the opinion for the Court, from which Justice Breyer dissented. Questions about this ruling should be directed to a tax professional. Happily, the obscure nature of this dispute did not evade the Third Circuit's understanding. In United States v. Farley, 202 F.3d 198 (3d Cir. 2000), Judge Roth, joined by Circuit Judges Carol Los Mansmann and Joseph F. Weis, Jr., reached precisely the same outcome that the Supreme Court later reached in Gitlitz.

Third Circuit Rejected: Six Supreme Court decisions resolved circuit splits adversely to the Third Circuit's prior rulings. The Supreme Court decided four of these six cases by 5-4 margins, while the remaining two were decided unanimously.

In Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 121 S. Ct. 1835 (2001), the Court ruled 5-4 that federal attorneys' fee-shifting statutes require a party to secure either a judgment on the merits or a court-ordered consent decree to qualify as the "prevailing party." In so ruling, Chief Justice Rehnquist's opinion rejected case law from the vast majority of circuits holding that where a suit has brought about a voluntary change in the defendant's conduct, the plaintiff can recover fees as the "prevailing party" under a "catalyst" theory. Justices Stevens, Souter, Ginsburg and Breyer dissented. The Supreme Court's decision rejected the Third Circuit's rulings in Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897 (3d Cir. 1985), and Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541 (3d Cir. 1994). Judge Becker wrote the opinion in Institutionalized Juveniles. Judge Sloviter wrote the opinion in Baumgartner, in which Judge Stapleton and Judge Jane A. Restani of the U.S. Court of International Trade joined.

Title VI of the Civil Rights Act of 1964 prohibits racial and national origin discrimination in certain covered state programs. The question presented in Alexander v. Sandoval, 121 S. Ct. 1511 (2001), was whether a private right of action existed to enforce regulations that the Department of Justice had issued under Title VI. In Alexander, the Supreme Court ruled 5-4 that no such private right of action existed. Justice Scalia wrote the opinion of the Court, from which Justices Stevens, Souter, Ginsburg and Breyer dissented. In so ruling, the Supreme Court disagreed with the Third Circuit's opinions in Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997), and Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999). Judge Cowen wrote the decision in Seif, in which Judge Roth and former Circuit Judge Timothy K. Lewis joined. Judge Sloviter wrote the decision in Powell, in which Judge Mansmann and visiting District Judge Robert J. Ward joined.

In Cleveland v. United States, 531 U.S. 12 (2001) (Ginsburg, J.), the Supreme Court ruled unanimously that state-issued licenses did not constitute "property" for purposes of the federal mail fraud statute. Cleveland disagreed with the Third Circuit's contrary ruling in United States v. Martinez, 905 F.2d 709 (3d Cir. 1990). Judge Sloviter wrote the Third Circuit's opinion in Martinez, in which former Circuit Judge William D. Hutchinson and Judge Cowen joined.

In Texas v. Cobb, 121 S. Ct. 1335 (2001), the Supreme Court ruled 5-4 that a defendant's Sixth Amendment right to counsel attaches only to the charged criminal offense, refusing to recognize any exception to that rule for uncharged crimes that are factually related to the charged offense. Chief Justice Rehnquist wrote the majority opinion, from which Justices Stevens, Souter, Ginsburg and Breyer dissented. In so ruling, the Supreme Court disagreed with the Third Circuit's decision in United States v. Arnold, 106 F.3d 37 (3d Cir. 1997). Judge Nygaard wrote that opinion, in which Judges Becker and Roth joined.

The Third Circuit has been construing the federal government's flood control immunity from suit too broadly, the Supreme Court unanimously concluded in Central Green Co. v. United States, 531 U.S. 425 (2001). Although Justice Stevens' opinion graciously conceded that the conflict that had arisen among the courts of appeals resulted from the Supreme Court's "admittedly confusing dicta" in an earlier decision, the Court nonetheless rejected the Third Circuit's ruling in Dawson v. United States, 894 F.2d 70 (3d Cir. 1990). Judge Nygaard wrote the Dawson opinion, in which Judge Hutchinson and District Judge Jan E. DuBois joined.

Finally, in Tyler v. Cain, 121 S. Ct. 2478 (2001), the Supreme Court ruled 5-4 that its earlier decision in Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), did not constitute "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." As a result, convicted criminals could not bring successive habeas corpus petitions based on Cage, which held that a jury instruction was unconstitutional if there was a reasonable likelihood that the jury believed it could convict without proof beyond a reasonable doubt. Justice Thomas wrote the opinion in Tyler, from which Justices Stevens, Souter, Ginsburg and Breyer dissented. The Supreme Court's decision in Tyler disagreed with the Third Circuit's ruling in West v. Vaughn, 204 F.3d 53 (3d Cir. 2000). Chief Judge Becker wrote the decision in West, in which Judge McKee and visiting Judge Noonan joined.

Third Circuit Decisions that Barely Escaped Review: Two other Third Circuit decisions were at issue in dissents from denials of certiorari. In Michaels v. McGrath, 121 S. Ct. 873 (2001), Justice Thomas dissented from the Court's order denying review of the Third Circuit's decision in Michaels v. New Jersey, 222 F.3d 118 (3d Cir. 2000). There, the Third Circuit ruled that an unlawfully convicted individual could not bring a civil rights action for damages against a county prosecutor who had improperly coerced the testimony of child witnesses during interviews about alleged sexual abuse. Justice Thomas's dissent noted that the Third Circuit's decision in Michaels conflicted with the Second Circuit's ruling in Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), and explained "I believe the Second Circuit's approach is very likely correct." Visiting Ninth Circuit Judge Arthur L. Alarcon wrote the Third Circuit's opinion in Michaels, in which Circuit Judges Mansmann and Morton I. Greenberg joined.

Justice O'Connor, joined by the Chief Justice and Justice Thomas, dissented from the denial of certiorari in Northwest Airlines, Inc. v. Duncan, 121 S. Ct. 650 (2000). At issue was the meaning of the word "service" in the provision of the Airline Deregulation Act of 1978 that expressly preempts certain state laws. In Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186 (3d Cir. 1998), the Third Circuit construed the term "service" much more narrowly than have the Fourth, Fifth and Seventh Circuits. The Supreme Court fell one vote shy of granting review in Duncan, and therefore the Third Circuit's decision in Taj Mahal survives for now. Judge Weis wrote the Taj Mahal opinion, in which Chief Judge Becker joined; Judge Leonard I. Garth dissented on other grounds.

Disapproving Pa. State Appellate Courts: Only three Supreme Court decisions touched upon Pennsylvania state appellate court rulings, and in none of those three cases did the state courts receive good news. In Fiore, the Supreme Court ordered that the defendant's Pennsylvania state court criminal conviction be overturned because it violated the U.S. Constitution's due process clause. Both the Pennsylvania Supreme Court and the Pennsylvania Superior Court had repeatedly denied that relief to the defendant.

In Texas v. Cobb, the Supreme Court rejected the broad view of the Sixth Amendment's right to counsel that the Pennsylvania Superior Court adopted in In re Pack, 616 A.2d 1006 (Pa. Super. Ct. 1992). Judge William F. Cercone wrote that opinion, in which Judges Frank J. Montemuro, Jr. and Kate Ford Elliott joined.

Finally, Justice Scalia's concurring opinion in Buckhannon Bd., a decision that rejected the "catalyst" theory for awarding attorneys' fees under federal fee-shifting statutes, did not find persuasive the Pennsylvania Supreme Court's rather ancient opinion in Wagner v. Wagner, 9 Pa. 214 (1848). There, Pennsylvania's highest court ruled that a defendant who voluntarily paid to plaintiff the debt at issue in the suit would also be liable for the plaintiff's costs, because settlement was an acknowledgement of liability.

This article is reprinted with permission from the July 9, 2001 issue of The Legal Intelligencer © 2001 NLP IP Company.

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