Howard J. Bashman's appellate columns, etc.

Report Card from the U.S. Supreme Court: How the Third Circuit and Pa. Supreme Court Fared in the October Term, 2001

By Howard J. Bashman
Monday, July 8, 2002
The Supreme Court of the United States, in its just-completed Term, issued a total of 80 opinions, 75 of which were signed and five of which were per curiam.

Only two of those 80 decisions involved cases that reached the Court directly from the U.S. Court of Appeals for the Third Circuit. In one the Court reversed, and in the other it vacated and remanded. The Third Circuit fared exceptionally well in nine other cases in which the Supreme Court addressed conflicts that involved the Third Circuit. In those nine cases, the Supreme Court sided with the Third Circuit's approach seven times and rejected the Third Circuit's approach only twice.

The U.S. Supreme Court this past Term decided no cases that arose from Pennsylvania's state court system. In one significant case that arose from the state court system of Alabama, the U.S. Supreme Court rejected a ruling of the Supreme Court of Pennsylvania.

Cases Arising From The Third Circuit
In Ashcroft v. American Civil Liberties Union, 122 S. Ct. 1700 (2002), the Supreme Court vacated and remanded a Third Circuit ruling that had struck down the Child Online Protection Act (COPA) as violative of the First Amendment. Justice Clarence Thomas wrote the Court's lead opinion. Justice John Paul Stevens was the lone dissenter and the only Justice to side with the Third Circuit's result. Senior Circuit Judge Leonard I. Garth wrote the Third Circuit's decision, which held that COPA's use of local community standards to determine whether online content was harmful to minors rendered the statute unconstitutionally overbroad. Circuit Judges Richard L. Nygaard and Theodore A. McKee joined Judge Garth's opinion. On remand, the Third Circuit remains free to invalidate the law on other grounds.

The Supreme Court avoided the potential invalidation of approximately thirty Pennsylvania death sentences when it unanimously and summarily reversed the Third Circuit in Horn v. Banks, 122 S. Ct. 2147 (2002) (per curiam). The Supreme Court ruled that the Third Circuit had improperly failed to consider whether an earlier U.S. Supreme Court decision on which the Third Circuit relied in striking down the defendant's death sentence could be applied retroactively on habeas corpus review. The Supreme Court usually employs summary reversals only in cases that present clear error. Circuit Judge Marjorie O. Rendell issued the Third Circuit's decision, in which Circuit Judges Dolores K. Sloviter and Jane R. Roth joined.

Conflicts Involving the Third Circuit
The Supreme Court approved of Third Circuit rulings seven times in cases arising from other courts.

In Devlin v. Scardelletti, 122 S. Ct. 2005 (2002), the Court agreed by a vote of 6-3 with the Third Circuit that unnamed class members who had timely objected to a class action's settlement could appeal without having intervened in the case. Justice Sandra Day O'Connor's majority opinion approved of the Third Circuit's decision in Carlough v. Amchem Products, Inc., 5 F.3d 707 (3d Cir. 1993). Circuit Judge Morton I. Greenberg wrote that decision, in which Carol Los Mansmann and Timothy K. Lewis joined.

In Porter v. Nussle, 534 U.S. 516 (2002), the Court unanimously held in an opinion by Justice Ruth Bader Ginsburg that the term "prison condition" as used in the Prison Litigation Reform Act of 1995 applied to single incidents of excessive force by prison guards. In so ruling, the Court sided with the Third Circuit's decision in Booth v. Churner, 206 F.3d 289 (3d Cir. 2000). Chief Judge Edward R. Becker wrote the decision in Booth, in which Judge McKee joined. Visiting Senior Ninth Circuit Judge John T. Noonan, Jr. dissented from this aspect of the Third Circuit's ruling. Of course, last year the Supreme Court granted review in Booth and affirmed another aspect of that decision.

In Dusenberry v. United States, 534 U.S. 161 (2002), the Court ruled 5-4 in an opinion by Chief Justice William H. Rehnquist that prisoners were not entitled to actual notice before the government could obtain the forfeiture of drug-tainted property. Rather, due process only requires notice reasonably calculated to apprise the prisoner of the forfeiture proceeding. This decision sided with Chief Judge Becker's en banc ruling in United States v. One Toshiba Color Television, 213 F.3d 147 (3d Cir. 2000) (en banc).

In TRW Inc. v. Andrews, 534 U.S. 19 (2001), the Court unanimously ruled, in a decision by Justice Ginsburg, that the statute of limitations governing claims under the Fair Credit Reporting Act is not generally tolled until the plaintiff knows or has reason to know of her injury. That ruling approved of the result that the Third Circuit reached in Houghton v. Insurance Crime Prevention Institute, 795 F.2d 322 (3d Cir. 1986). Judge Sloviter wrote that opinion, in which then-Chief Judge Ruggero J. Aldisert and Judge Garth joined.

In JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 122 S. Ct. 2054 (2002), the Court unanimously ruled, in an opinion by Justice David H. Souter, that a company incorporated in one of the Overseas Territories of the United Kingdom was a "citize[n] or subjec[t] of a foreign state" for purposes of federal court alienage diversity jurisdiction. That decision approved of the Third Circuit's ruling in Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410 (3d Cir. 1999). Chief Judge Becker wrote that decision, in which former Judge Lewis and visiting Senior Sixth Circuit Judge Harry Wellford joined.

For the second year in a row, Judge Roth wins the distinction of being affirmed on a legal issue far too complicated for easy summarization. In Wisconsin Department of Health and Family Services v. Blumer, 534 U.S. 473 (2002), the Court ruled 6-3, in an opinion by Justice Ginsburg, that the Medicare Catastrophic Coverage Act of 1988 did not prevent use of the "income-first" method of determining benefit eligibility. In so ruling, the Court approved of Judge Roth's decision in Cleary v. Waldman, 167 F.3d 801 (3d Cir. 1999), in which Circuit Judges Anthony J. Scirica and Rendell joined.

Lastly on the positive side, the Court in Gonzaga University v. Doe, 122 S. Ct. 2268 (2002) (Rehnquist, C.J.), ruled 7-2 that no personal right of action under the federal civil rights act exists to enforce the non-disclosure provisions of the Family Educational Rights and Privacy Act of 1974. The Court's ruling noted with approval District Judge J. Curtis Joyner's decision in Gundlach v. Reinstein, 924 F. Supp. 684 (E.D. Pa. 1996), which a Third Circuit panel consisting of Judges Mansmann, Robert E. Cowen and Collins J. Seitz affirmed by judgment order in 1997.

In United States v. Craft, 122 S. Ct. 1414 (2002) (O'Connor, J.), the Court ruled 6-3 that a federal tax lien could attach to property that the taxpayer held with his or her spouse as tenants by the entirety. In so ruling, the Court rejected the Third Circuit's decisions in IRS v. Gaster, 42 F.3d 787 (3d Cir. 1994), and Raffaele v. Granger, 196 F.2d 620 (3d Cir. 1952). Then-Judge Becker wrote the decision in Gaster, in which Circuit Judge Cowen and Senior District Judge Louis H. Pollak joined. Circuit Judge William H. Hastie wrote the decision in Raffaele, in which Circuit Judge Harry E. Kalodner and District Judge Richard Hartshorne (D.N.J.) joined.

Lastly, in Gisbrecht v. Barnhart, 122 S. Ct. 1817 (2002) (Ginsburg, J.), the Court ruled 8-1 that a lawyer for a successful social security claimant could recover on a contingent fee basis so long as the attorney's fee was less than the applicable statutory maximum. The Court stated that its decision was contrary to the Third Circuit's ruling in Coup v. Heckler, 834 F.2d 313 (3d Cir. 1987), but my review suggests that both the Third Circuit and the Supreme Court reached roughly the same result. Former Chief Judge John J. Gibbons wrote the decision in Coup, in which Judges Mansmann and Aldisert joined.

Conflict Involving the Pa. Supreme Court
In Alabama v. Shelton, 122 S. Ct. 1764 (2002), the Court ruled 5-4, in an opinion by Justice Ginsburg, that it would violate the Sixth Amendment for a state to imprison someone to serve a formerly suspended sentence if the state did not provide counsel to the defendant in the prosecution of the offense for which he received the suspended sentence.

That ruling disagreed with the decision of the Supreme Court of Pennsylvania in Commonwealth v. Thomas, 507 A.2d 57 (Pa. 1986). Former Justice Rolf Larsen wrote the decision in Thomas, from which former Chief Justice Robert N.C. Nix, Jr. was the lone dissenter.

Conclusion
Although the Supreme Court of the United States did not directly affirm any Third Circuit decisions this past Term, the Third Circuit overall compiled a very impressive record of success in the High Court for which it should justifiably be quite proud.

This article is reprinted with permission from the July 8, 2002 issue of The Legal Intelligencer © 2002 NLP IP Company.