Former Supreme Court Justice O'Connor to Join 3rd Circuit Panel

Shannon P. Duffy

The Legal Intelligencer

Former U.S. Supreme Court Justice Sandra Day O'Connor is scheduled to hear four oral arguments in Philadelphia this week as a visiting judge on the 3rd U.S. Circuit Court of Appeals, joining 3rd Circuit Chief Judge Anthony J. Scirica and Judge Marjorie O. Rendell for three arguments Thursday and one Friday.

O'Connor will participate in deciding 16 cases, but only four were slated for oral arguments, according to court records.

For the lawyers arguing those four cases, the news that O'Connor would be one of the three judges on the panel came just two weeks before they were slated to step to the lectern.

Apparently anticipating that O'Connor's presence might draw a crowd, the 3rd Circuit has scheduled the arguments to take place in the Ceremonial Courtroom. Both sessions begin at 9:30 a.m.

In the arguments, the panel will tackle several novel questions in the areas of the Americans with Disabilities Act, gun laws, habeas corpus petitions and occupational safety law.

The first lawyer to argue Thursday -- Mark A. Perry of Gibson Dunn & Crutcher in Washington, D.C. -- will be a familiar face to O'Connor because he clerked for her during the 1993-1994 term.

In Hohider v. United Parcel Service Inc., Perry represents UPS in an appeal that seeks to overturn a decision by U.S. District Judge Joy Flowers Conti that certified a class action brought by UPS workers who claim the company's policies are hostile to those seeking a "reasonable accommodation."

The suit accuses UPS of enforcing policies designed to delay and avoid providing accommodations; requiring workers to be "100 percent healed" before they can return to work; and using broadly worded job descriptions to prevent disabled employees from holding any UPS job.

In court papers, UPS denied the existence of the alleged 100 percent healed policy and insisted that its ADA policies are designed to and do afford employees robust protection.

In the appeal, UPS argues that Conti never should have certified the case as a class action because the definition of the class is unworkable and will require a host of individualized determinations merely to determine membership in the class.

Joining Perry on the brief for UPS is Eugene Scalia, the son of O'Connor's former colleague.

WHAT MAKES FOR MOOTNESS?

The second case, Burkey v. Marberry, focuses on whether a federal prison inmate's habeas corpus petition is rendered moot as soon as he is released from prison, or, as the defendant argues, remains vital because he is continuing to serve out his term of "supervised release."

In his habeas petition, John Burkey, who was convicted of a drug offense, claimed that he was unfairly denied the benefit of a law that grants a sentence reduction for inmates who participate in substance abuse treatment programs.

Chief U.S. Magistrate Judge Susan Paradise Baxter of the Western District of Pennsylvania sided with Burkey in an August 2007 report that said he should be released immediately. Baxter found that Burkey was unfairly denied a sentence reduction on the basis of a new rule that prohibits inmates from benefiting from the program more than once. (Burkey had taken advantage of the program while serving a sentence for a previous conviction.)

Baxter found that, in passing a rule that bars inmates from using the program a second time, the Bureau of Prisons had failed to comply with the federal Administrative Procedure Act, which requires public participation through notice and comment whenever new rules are passed.

"The BOP cannot avoid the requirements of the APA by placing its legislative rules in its program statements, instead of first publishing them in the Federal Register," Baxter wrote.

As a result, Baxter said, the rule should not be invoked against Burkey.

But in December 2007, U.S. District Judge Sean McLaughlin dismissed Burkey's case, finding that it had become moot soon after the magistrate judge's report when Burkey was released from prison.

On appeal, Burkey's lawyer, Assistant Federal Public Defender Thomas W. Patton, argues that McLaughlin was wrong to declare the case moot because Burkey can still benefit from a ruling that says his prison term was unfairly extended.

"Mr. Burkey can use that ruling to ask his sentencing judge to credit his period of improper incarceration against his term of supervised release," Patton wrote, noting that the 3rd Circuit has already held that the possibility of such relief is enough to give the courts jurisdiction.

In response, Assistant U.S. Attorney Laura Schleich Irwin argued that McLaughlin was right, and that Burkey's claim cannot be saved from mootness by the mere possibility that success in his habeas petition could provide a basis for a different judge to modify the terms of his supervised release.

GUN LAW

The third case, United States v. Laboy-Torres, raises the question of whether a conviction under Section 922, the federal law that bars felons from possessing guns, may be triggered by a conviction in Puerto Rico, a U.S. territory.

Marco Laboy-Torres was convicted in 1999 on marijuana possession charges and was prosecuted in federal court in Harrisburg in 2006 on charges that he made false statements about his criminal history when attempting to purchase firearms.

In the appeal, Assistant Federal Public Defender Frederick W. Ulrich argues that the federal gun law has been interpreted by the U.S. Supreme Court to apply only to convictions in domestic courts, as opposed to foreign courts.

"In this case, the conviction occurred in a local court of Puerto Rico, which is not a state. Based upon the interpretation ... given by the Supreme Court, the phrase 'domestic courts' should not be construed as to encompass the local courts in Puerto Rico," Ulrich wrote.

In response, Assistant U.S. Attorney Theodore B. Smith argues that the Supreme Court focused only on foreign convictions.

"Puerto Rican convictions do not exhibit any of the characteristics that promoted the court to eliminate foreign convictions from the reach of Section 922," Smith wrote.

WORKER SAFETY

In the case to be argued Friday, Public Citizen Health Research Group v. U.S. Department of Labor, the panel will revisit an issue that came before the 3rd Circuit more than a decade ago -- whether the federal Occupational Safety and Health Administration must issue new, safer worker exposure limits for hexavalent chromium, a known carcinogen.

In the appeal, Public Citizen and the Paper, Allied-Industrial, Chemical and Energy Workers International Union are asking the court to find that OSHA has unreasonably delayed in responding to their requests that it lower the limit.

The appeal outlines a history dating back to 1993 when Public Citizen first asked OSHA to lower the limits. OSHA denied the petition, the appeal says, promising instead to commence rulemaking in 1995 to dramatically reduce the limit. But the appeal says the agency never did.

In 1997, Public Citizen asked the 3rd Circuit to order OSHA to take action, but the court ruled against the group in 1998, saying the agency had promised to begin a regulatory proceeding in 1999.

But the appeal says no action has ever been taken. After multiple deferrals, the appeal says, OSHA announced in December 2001 that the regulation of hexavalent chromium had been relegated to the status of a "long term action" and the agency removed any date for predicted action.