An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
Report Card from the U.S. Supreme Court: How the Third Circuit Fared in the October 2003 Term
By Howard J. Bashman
Monday, July 12, 2004
The Supreme Court of the United States, in its just-completed Term, issued a total of 80 opinions of the Court, 73 of which were signed and seven of which were per curiam.
Four of those 80 decisions involved cases that reached the Court directly from the U.S. Court of Appeals for the Third Circuit. In those four cases, the Third Circuit had its rulings affirmed once, reversed twice, and vacated once. Another case arose on direct appeal from a special three-judge panel of the U.S. District Court for the Middle District of Pennsylvania, and the Supreme Court affirmed.
The Supreme Court in eight other cases noted that it was resolving conflicts which involved the Third Circuit. In five of those cases, the Supreme Court approved of the Third Circuit's approach; in the remaining three, the Supreme Court disagreed with the Third Circuit's approach.
The Third Circuit's lone affirmance came on the Term's final opinion issuance date in one of the Term's most newsworthy cases, Ashcroft
v. American Civil Liberties Union
. By a 5-4 vote, the Supreme Court affirmed a Third Circuit decision that upheld a trial court's preliminary injunction preventing enforcement of a federal law known as the Child Online Protection Act. The Supreme Court agreed with the Third Circuit that the law, intended to shield minors from pornography on the Internet, likely violates the First Amendment. Senior Judge Leonard I. Garth wrote the Third Circuit's decision, in which Judges Richard L. Nygaard and Theodore A. McKee joined.
The Third Circuit suffered its first reversal of the Term in the very first signed opinion that the Court issued. In Barnhart
, the Supreme Court unanimously upheld the Social Security Administration's practice of declaring a claimant "not disabled" if she can perform her previous job, even if the job no longer exists in the national economy. In so deciding, the Supreme Court reversed the Third Circuit's en banc ruling, by a margin of 7-3, that a claimant's ability to perform a job that no longer exists in the national economy does not suffice to declare the claimant "not disabled." Judge Samuel A. Alito, Jr. wrote the majority opinion for the en banc Third Circuit, while Judge Marjorie O. Rendell, joined by Judges Dolores K. Sloviter and Jane R. Roth, dissented.
The Third Circuit's other reversal came in late June 2004, in a capital punishment case by the name of Beard
. George Banks was convicted of murder and sentenced to death in Pennsylvania state court. The jury received instructions that could be understood, during its deliberations on whether to impose the death penalty, to prevent consideration of mitigating circumstances that the jury did not unanimously find. After Banks's conviction became final on direct appeal, the U.S. Supreme Court in 1988, in a decision known as Mills
, invalidated capital sentencing schemes that required juries to disregard mitigating factors not found unanimously. In the decision under review, a unanimous three-judge Third Circuit panel ruled that Mills
required the invalidation of Banks's death sentence even though the Mills
decision had issued after Banks's conviction and sentence became final on direct appeal. Judge Rendell wrote that decision, in which Judge Roth joined and in which Judge Sloviter concurred in the result. The U.S. Supreme Court disagreed by a 5-4 margin, split along the traditional conservative-liberal divide, and reinstated Banks's death sentence. The Supreme Court's ruling also saved from invalidation some thirty other Pennsylvania death sentences.
In Pennsylvania State Police
, the Supreme Court reviewed the Third Circuit's ruling in a sex discrimination constructive discharge case. The Third Circuit, in a decision written by Judge Julio M. Fuentes and joined in by Judge McKee and a judge visiting from the International Court of Trade, held that the plaintiff's claims were deserving of a trial and discussed the burdens of proof the parties would bear at trial. The Supreme Court, by a margin of 8-1, agreed that the case was deserving of trial but disagreed in various respects with how the Third Circuit had allocated the burdens of proof. Accordingly, the Supreme Court vacated the Third Circuit's judgment and remanded for further proceedings.
, the Supreme Court considered a direct appeal from a ruling by a special three-judge panel of the U.S. District Court for the Middle District of Pennsylvania. The district court panel, consisting of Circuit Judge Nygaard and Senior District Judges Sylvia H. Rambo, and William H. Yohn, Jr., rejected plaintiffs' claim that Pennsylvania's congressional redistricting plan constituted an unlawful political gerrymander. A sharply divided Supreme Court, by a vote of 5-4, affirmed.
In United States
, the Supreme Court ruled 5-4 that a failure to give a criminal suspect Miranda
warnings does not require that the physical fruits of the suspect's unwarned but voluntary statements be suppressed. The ruling in Patane
expressly approved of the Third Circuit's decision in United States
(2001), which reached the same result. Senior Judge Joseph F. Weis wrote the decision in DeSumma
, in which Judges Edward R. Becker and McKee joined.
, the Supreme Court unanimously ruled in a per curiam opinion that when a state prisoner brings a lawsuit challenging the conditions of confinement resulting from prison disciplinary proceedings, the suit can be brought under the federal Civil Rights Act, rather than as a habeas corpus action, if the relief sought would not necessarily imply the invalidity of the prisoner's underlying conviction or sentence. In so ruling, the Supreme Court expressly approved of the Third Circuit's ruling in Leamer
(2002). Judge Rendell wrote the opinion in Leamer
, in which Judge McKee and Senior Judge Walter K. Stapleton joined.
, the Supreme Court ruled 7-2 that a timely-filed application for attorneys' fees to be paid by the federal government to a prevailing party under the Equal Access to Justice Act could be amended after the filing deadline to add allegations necessary to an award of fees. In so deciding, the Supreme Court approved of the Third Circuit's ruling in Dunn
v. United States
(1985). Retired Judge John J. Gibbons wrote the opinion in Dunn
, in which Senior Judge Weis joined. Retired Judge Arlin M. Adams dissented.
In Intel Corp.
v. Advanced Micro Devices, Inc.
, the Supreme Court by a vote of 7-1 set forth the standards pursuant to which a federal district court may order a person residing or found in the district to give testimony or produce documents for use in a proceeding in a foreign or international tribunal. The Supreme Court, in the course of its ruling, agreed with the Third Circuit's decision in In re Bayer AG
(1998) that a federal district court could allow discovery of materials that would be inadmissible in the international tribunal. Judge Sloviter wrote the opinion in Bayer
, and Senior Judge Robert E. Cowen joined in the decision. The third judge on the panel was unable to take part in the ruling due to illness.
The final case in which the Supreme Court expressly approved of a Third Circuit ruling in the 2003 Term was Castro
v. United States
. In Castro
, the Supreme Court ruled that before a federal court recharacterizes a federal prisoner's motion for relief as the prisoner's first habeas corpus petition, the trial court must inform the prisoner of its intent to recharacterize, warn the prisoner that the recharacterization means that any subsequent habeas motion will be subject to the restrictions on "second or successive" motions, and provide the prisoner with the opportunity to withdraw the motion or to amend it so that it contains all the habeas claims he believes he has. The Supreme Court's unanimous ruling in Castro
expressly approved of the Third Circuit's decision in United States
(1999). Then-Chief Judge Becker wrote the decision in Miller
, in which Senior Circuit Judge Garth and Senior District Judge Louis H. Pollak joined.
Turning now to the cases in which the Supreme Court reached results at odds with Third Circuit rulings, in Sabri
v. United States
the Supreme Court rejected a constitutional challenge to a federal statute that criminalizes the bribery of state and local officials of government entities that receive at least $10,000 in federal funds. The Supreme Court rejected the argument that the law, to be constitutional, required proof of a connection between the federal funds and the alleged bribe. In so ruling, the Supreme Court rejected the Third Circuit's decision in United States
(1999), which required proof of a nexus between the forbidden conduct and federal funds. Judge Rendell wrote the decision in Zwick
, in which Judges Roth and Pollak joined.
v. United States Trustee
, the Supreme Court ruled that a bankruptcy attorney who began representing the debtor in a Chapter 11 case is not entitled to recover fees for continuing to represent the debtor after the case is converted to a Chapter 7 liquidation proceeding unless the attorney after conversion was employed by the bankruptcy trustee. In so ruling, the Supreme Court disagreed with the Third Circuit's decision in In re Top Grade Sausage, Inc.
(2000), which allowed the attorney to be paid even in the absence of employment by the trustee following a Chapter 7 conversion. Judge Roth wrote the decision in Top Grade
, in which Senior Judges Morton I. Greenberg and Stapleton joined.
Finally, in Jones
v. R.R. Donnelley & Sons Co.
, the Supreme Court unanimously held that Congress's enactment in 1990 of a four-year catchall statute of limitations for federal statutory causes of action applied not only to entirely new laws enacted after 1990 but also to claims made possible by the Civil Rights Act of 1991's amendments to a civil rights statute that first became law in 1866. The Supreme Court's ruling was directly contrary to the Third Circuit's decision in Zubi
v. AT&T Corp.
(2000). Judge Stapleton wrote the decision in Zubi
, and a federal district judge visiting from Michigan joined in the decision. Judge Alito dissented, favoring the result that the Supreme Court ultimately reached.
Although the Supreme Court disagreed with the Third Circuit's rulings in three of the four cases in which the Supreme Court was directly reviewing the Third Circuit's work, in another eight cases the Supreme Court sided with the Third Circuit's position five times. In all, the Supreme Court in the 2003 Term resolved twelve cases involving rulings from the Third Circuit. In six of those twelve cases the Supreme Court sided with the Third Circuit, while in the remaining six cases the Third Circuit's rulings did not survive review.
This article is reprinted with permission from the July 12, 2004, issue of The Legal Intelligencer © 2004 NLP IP Company.