Howard J. Bashman's appellate columns, etc.

Report Card from the U.S. Supreme Court: How the Third Circuit Fared in the October 2004 Term

By Howard J. Bashman
Monday, July 11, 2005
The Supreme Court of the United States, in its just-completed Term, issued a total of 80 opinions, 74 of which were signed and six 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 and reversed three times.

The Supreme Court in seven 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 two cases, the Supreme Court disagreed with the Third Circuit's approach.

The Third Circuit's lone affirmance came by means of a 5–4 ruling in Pace v. DiGuglielmo. The Supreme Court, by the narrowest of margins, agreed with the Third Circuit's ruling that a post–conviction relief petition rejected as untimely by a state court does not toll the time limit for filing a federal habeas corpus petition. Chief Justice William H. Rehnquist delivered the opinion of the Court on behalf of its conservative majority, while Justice John Paul Stevens wrote a dissent in which the Court's more liberal members joined.

The Supreme Court's ruling in Pace affirmed a non–precedential Third Circuit decision written by Circuit Judge Richard L. Nygaard (who, coincidentally, took senior status on July 9, 2005) and joined in by Circuit Judge D. Brooks Smith and Senior Circuit Judge Morton I. Greenberg. Judge Nygaard's ruling followed an earlier precedential opinion written by Circuit Judge Dolores K. Sloviter, in which Circuit Judge Theodore A. McKee joined. Senior Circuit Judge Max Rosenn dissented from Judge Sloviter's opinion.

Turning next to reversals, the Supreme Court in Rompilla v. Beard ruled by a vote of 5–4 that a Pennsylvania death row inmate had received ineffective assistance of counsel at the penalty phase of his trial due to his trial lawyer's failure to review material that the prosecution was likely to rely on in seeking imposition of the death penalty. Justice David H. Souter delivered the opinion of the Court, in which Justice Sandra Day O'Connor and the Court's more liberal justices joined. Justice Anthony M. Kennedy wrote a dissenting opinion, in which the Court's more conservative justices joined. Judge Samuel A. Alito, Jr. was the author of the Third Circuit's decision, in which Senior Circuit Judge Walter K. Stapleton joined. Circuit Judge Sloviter dissented from the Third Circuit's ruling.

The Third Circuit's second reversal came in a federal criminal case. In Small v. United States, the defendant had been convicted of violating a federal law that prohibits any person convicted in any court of a crime punishable by imprisonment for a term exceeding one year from possessing any firearm. The question presented asked whether "any court" included a Japanese court, or whether only domestic convictions triggered the firearm disqualification.

The Third Circuit, in an opinion by visiting Senior Eighth Circuit Judge Frank J. McGill, upheld the federal gun possession conviction based on the defendant's earlier Japanese conviction. Circuit Judges Marjorie O. Rendell and Thomas L. Ambro joined in the ruling. By a vote of 5–3 with Chief Justice Rehnquist not participating, the Supreme Court reversed in an opinion by Justice Stephen G. Breyer. Justice Clarence Thomas dissented, in an opinion joined by Justices Antonin Scalia and Kennedy.

The Third Circuit's remaining reversal came in the case of Exxon Mobil Corp. v. Saudi Basic Industries Corp. There, the Supreme Court, in a unanimous opinion by Justice Ruth Bader Ginsburg, ruled that the Third Circuit had improperly invoked a doctrine that precludes lower federal courts from exercising appellate jurisdiction over a state court's judgment in a civil case when the Third Circuit dismissed for lack of jurisdiction a federal suit that was initiated while a related suit among many of the same parties was pending in a Delaware state court. Circuit Judge Ambro was the author of the Third Circuit's decision, in which Circuit Judge Julio M. Fuentes and former Circuit Judge Michael Chertoff joined.

Although the Third Circuit suffered reversals in three of the four cases in which the Supreme Court directly reviewed its work, the Third Circuit fared much better in cases arising from other federal appellate courts presenting conflicts that implicated Third Circuit rulings.

In Mayle v. Felix, the Supreme Court agreed by a vote of 7–2, in an opinion by Justice Ruth Bader Ginsburg, with the Third Circuit's ruling in United States v. Duffus that an amendment to a habeas petition does not relate back for statute of limitations purposes when it asserts a new ground for relief supported by facts that differ in time and type from those set forth in the original pleading. Judge Greenberg wrote the Third Circuit's opinion in Duffus, in which Circuit Judge Jane R. Roth and Senior Circuit Judge Rosenn joined.

In another habeas case, the Supreme Court in Rhines v. Weber agreed with the Third Circuit's ruling in Crews v. Horn that a federal district court can stay a state prisoner's habeas petition presenting both exhausted and unexhausted claims to permit presentation of the unexhausted claims to a state court. Justice O'Connor delivered the opinion of the Court on behalf of a total of eight justices. Circuit Judge Roth wrote the Third Circuit's opinion in Crews, in which Circuit Judges Alito and Maryanne Trump Barry joined.

In Arthur Andersen LLP v. United States, the Supreme Court unanimously agreed with the Third Circuit's construction of the federal criminal statute under which the accounting firm was convicted for having destroyed documents needed in an official proceeding. Chief Justice Rehnquist wrote the Supreme Court's opinion. In so ruling, the Supreme Court approved of the Third Circuit's ruling in United States v. Farrell, written by Judge Stapleton and joined in by then–Circuit Judge Timothy K. Lewis. A First Circuit judge sitting by designation dissented from the ruling in Farrell.

In Commissioner v. Banks, the Supreme Court in a unanimous opinion by Justice Kennedy (with the Chief Justice not participating) ruled that if a litigant's monetary recovery in litigation is properly counted in the litigant's gross income for tax purposes, the litigant cannot exclude from gross income the portion of recovery paid to his attorney as a contingent fee. In so ruling, the Supreme Court approved of the Third Circuit's per curiam affirmance in 1963 of a tax court decision.

The final item of good news the Third Circuit received from the Supreme Court came in Stewart v. Dutra Construction Co. The Supreme Court held, in a unanimous opinion by Justice Thomas (with the Chief Justice not participating) that a dredge is a vessel under the Longshore and Harbor Workers' Compensation Act. In so ruling, the Supreme Court approved of Third Circuit rulings issued in the years 1898 and 1925.

The two cases in which the Supreme Court, when reviewing decisions from other circuits, disagreed with the Third Circuit's approach involved issues of particular importance.

In Exxon Mobil Corp. v. Allapattah Services, Inc., the Supreme Court ruled 5–4 in an opinion by Justice Kennedy that under the supplemental jurisdiction statute, only one named plaintiff in a diversity case need satisfy the amount–in–controversy requirement in order for a federal district court to have subject matter jurisdiction over the claims of all co–plaintiffs and plaintiff class members. The Supreme Court's ruling disagreed with the Third Circuit's decision from 1999 in Meritcare, Inc. v. St. Paul Mercury Insurance Co. Senior Circuit Judge Joseph F. Weis, Jr. wrote the opinion in Meritcare, in which Judges McKee and Rendell joined.

Finally, in Dura Pharmaceuticals, Inc. v. Broudo, the Supreme Court ruled unanimously in an opinion by Justice Breyer that the allegation in a securities fraud case that the fraud at issue caused the security's purchase price to be inflated does not suffice to allege the required element of "loss causation." In so ruling, the Supreme Court disagreed with the Third Circuit's ruling in Semerenko v. Cendant Corp., a decision that visiting Senior Ninth Circuit Judge Arthur L. Alarcon wrote, and in which Circuit Judges Carol Los Mansmann and Greenberg joined.

As the foregoing review of the Third Circuit's performance before the U.S. Supreme Court in the October 2004 Term reveals, the twenty–five percent affirmance ratio that the Third Circuit achieved on direct review improves to a better than fifty percent approval ratio when one considers all of the cases in which the Supreme Court recognized that it was resolving conflicts implicating the Third Circuit.

This article is reprinted with permission from the July 11, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.