Upon Further Review

In last month’s column, I reported that the U.S. Supreme Court agreed with the outcomes that the U.S. Court of Appeals for the Third Circuit arrived at in three of the seven cases that reached the Supreme Court directly from the Third Circuit in the recently completed 2011-12 term. Today’s column examines how the Third Circuit fared last term in another eight cases that did not originate from the Third Circuit but in which the Supreme Court expressly noted that it was resolving conflicts that involved the Third Circuit.

In those other eight cases, the Supreme Court agreed with the Third Circuit’s side of a circuit split three times and disagreed with it five times. Although a .375 batting average is viewed as very successful in baseball, this rate of success at the U.S. Supreme Court is below what the Third Circuit has achieved in recent years.

Now, on to the specifics, beginning with the cases in which the Supreme Court approved of the Third Circuit’s rulings.

In Dorsey v. United States , 132 S. Ct. 2321 (2012), the Supreme Court granted review to decide "whether the Fair Sentencing Act’s more lenient mandatory minimums apply to offenders whose unlawful conduct took place before, but whose sentencing took place after, the date that act took effect." The Third Circuit answered "yes" in a decision issued in August 2011. Judge D. Michael Fisher wrote the Third Circuit’s ruling, in which Judge Julio M. Fuentes and Senior Judge Richard L. Nygaard joined. In Dorsey , the U.S. Supreme Court agreed with the Third Circuit’s ruling by a 5-4 vote. Justice Stephen G. Breyer wrote the majority opinion, while Justice Antonin Scalia wrote the dissenting opinion. The court divided along traditional liberal and conservative lines, with Justice Anthony M. Kennedy providing the decisive fifth vote in favor of the outcome.

In Holder v. Martinez Gutierrez , 132 S. Ct. 2011 (2012), the Supreme Court granted review to address whether an alien living in this country as a child must meet certain residency requirements relevant to a removal proceeding on his or her own, without counting a parent’s years of residence or immigration status. In a decision issued in March 2008, the Third Circuit had answered "yes." U.S. District Senior Judge Louis H. Pollak of the Eastern District of Pennsylvania, sitting by designation, wrote the Third Circuit’s opinion, in which Judges Marjorie O. Rendell and Michael A. Chagares joined. In Martinez Gutierrez , the U.S. Supreme Court unanimously agreed with the Third Circuit’s result in an opinion by Justice Elena Kagan.

In Perry v. New Hampshire , 132 S. Ct. 716 (2012), the Supreme Court granted review to consider "whether the due process clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police." In a decision issued in December 1972, the Third Circuit had answered "no." None of the judges who served on that three-judge Third Circuit panel remain on the court. Justice Ruth Bader Ginsburg wrote the Supreme Court’s decision agreeing with the Third Circuit’s resolution. Justice Sonia Sotomayor issued the lone dissenting vote.

Turning now to the five cases in which the U.S. Supreme Court did not agree with the Third Circuit, in RadLAX Gateway Hotel v. Amalgamated Bank , 132 S. Ct. 2065 (2012), the Supreme Court granted review to consider "whether a Chapter 11 bankruptcy plan may be confirmed over the objection of a secured creditor if the plan provides for the sale of collateral free and clear of the creditor’s lien, but does not permit the creditor to ‘credit-bid’ at the sale."

The majority on a divided three-judge Third Circuit panel ruled in March 2010 that such credit-bidding did not need to be allowed. The Supreme Court in RadLAX disagreed. Scalia wrote the RadLAX opinion on behalf of a unanimous court. The Third Circuit’s ruling, with which the Supreme Court disagreed, was written by Fisher and joined in by Judge D. Brooks Smith. Judge Thomas L. Ambro had dissented, arguing in favor of the result that the Supreme Court reached in RadLAX .

In Judulang v. Holder , 132 S. Ct. 476 (2011), the Supreme Court granted review to decide whether a now-repealed Board of Immigration Appeals’ policy for deciding when resident aliens may apply to the attorney general for relief from deportation was arbitrary and capricious. In a ruling that the Third Circuit issued in February 2007, the court held that the policy was valid. Senior Judge Leonard I. Garth wrote the decision, in which Judge Dolores Sloviter and Senior Judge Joseph F. Weis Jr. joined. Disagreeing with the Third Circuit, the Supreme Court in an opinion by Kagan ruled that the BIA’s policy was arbitrary and capricious.

Next, in Gonzalez v. Thaler , 132 S. Ct. 641 (2012), the Supreme Court granted review to determine whether a federal district judge’s failure to indicate a constitutional issue in a certificate of appealability in a habeas corpus case deprives a federal court of appeals of subject-matter jurisdiction to adjudicate the habeas petitioner’s appeal. The Third Circuit had answered "yes" in an en banc opinion issued in August 2000. Senior Judge Ruggero J. Aldisert wrote the Third Circuit’s majority opinion, while Rendell dissented and would have found that jurisdiction existed in an opinion joined by then-Chief Judge Edward R. Becker and Sloviter. In Gonzalez , the Supreme Court sided with the Third Circuit’s dissenters in an opinion written by Sotomayor. Scalia was the lone dissenter.

In Mims v. Arrow Financial Services , 132 S. Ct. 740 (2012), the Supreme Court granted review to decide whether suits alleging violations of a federal law known as the Telephone Consumer Protection Act of 1991 could be brought in federal court or only in state court. In a decision issued in September 1998, the Third Circuit ruled that such suits could only be pursued in state court. Rendell issued the Third Circuit’s ruling, in which Garth joined. Then-Judge Samuel A. Alito Jr. issued a dissenting opinion, arguing that such suits could be brought in federal court. In Mims , the Supreme Court unanimously agreed with Alito’s views in an opinion written by Ginsburg.

Lastly, in Pacific Operators Offshore v. Valladolid , 132 S. Ct. 680 (2012), the Supreme Court granted review to consider the circumstances under which someone may recover compensation under the Longshore and Harbor Workers’ Compensation Act as extended by the Outer Continental Shelf Lands Act. In Pacific Operators , the Supreme Court rejected as not sufficiently rigorous the standards for recovery that the Third Circuit approved in a ruling issued in June 1988. Judge William D. Hutchinson wrote that Third Circuit ruling, in which Judges Anthony J. Scirica and Garth joined. Justice Clarence Thomas wrote the Supreme Court’s opinion in Pacific Operators .

As demonstrated above, the U.S. Supreme Court in its recently completed 2011-12 term agreed with the Third Circuit in three of the eight cases decided on review from other courts that the Supreme Court expressly recognized as implicating the Third Circuit in the divisions of authority to be resolved. Although the Third Circuit’s degree of success in these cases has fallen below what it has achieved in recent years, only time will tell whether this represents an unusual blip on the radar or the beginning of a trend. •

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com