Upon Further Review

In last month's column, I examined the six cases that reached the U.S. Supreme Court directly from the U.S. Court of Appeals for the Third Circuit in the 2012-13 term. As readers may recall, in five of those cases, the Third Circuit's judgment was either reversed or vacated, while in the remaining case the Third Circuit's judgment was affirmed.

In this month's column, I examine the other half of the equation — how the Third Circuit fared in cases that reached the U.S. Supreme Court from other courts but in which the Supreme Court expressly noted that it was resolving conflicts that involved the Third Circuit. In the 2012-13 term, the Supreme Court decided a total of eight cases in this category, agreeing with the Third Circuit five times and disagreeing with the Third Circuit the remaining three times.

Starting first with the good news, in Federal Trade Commission v. Actavis, No. 12-416, the Supreme Court held that so-called "reverse payment settlements," which have been used to resolve patent infringement litigation between a brand-name drug manufacturer and potential generic competitors, can sometimes violate the federal antitrust laws. In so ruling, the Supreme Court agreed with the Third Circuit's 2012 ruling in In re K-Dur Antitrust Litigation, 686 F.3d. 197 (3d Cir. 2012). Judge Dolores K. Sloviter wrote the Third Circuit's ruling in K-Dur, in which Judge Thomas I. Vanaskie and a U.S. district judge sitting by designation joined.

The U.S. Supreme Court also agreed with the Third Circuit's approach in Kirtsaeng v. John Wiley & Sons,133 S. Ct. 1351 (2013), which involved whether a copyrighted item first lawfully sold abroad can then be imported to the United States and resold here without violating the rights of the copyright holder. In Kirtsaeng, the Supreme Court answered "yes," holding that the so-called "first sale doctrine" allowing a lawful first purchaser of a copyrighted item to resell the item without copyright liability applies to items manufactured and first sold abroad.

In so ruling, the Supreme Court agreed with the Third Circuit's ruling in Sebastian International v. Consumer Contacts (PTY), 847 F.2d 1093 (3d. Cir. 1988), a decision that was issued in 1998. Third Circuit Judge Joseph F. Weis was the author of that decision, in which former Chief Judge John J. Gibbons and Judge Morton I. Greenberg joined.

Last term, the Supreme Court also agreed with the Third Circuit's approach in certifying securities fraud class actions in Amgen v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184 (2013). In Amgen, the high court held that proof of materiality of alleged misrepresentations is not a prerequisite to class certification in a securities fraud action based on a fraud-on-the-market theory. In so ruling, the court agreed with an aspect of the Third Circuit's decision in In re DVI Securities Litigation, 639 F.3d 623 (2011). Judge Anthony J. Scirica wrote the Third Circuit's opinion in DVI, in which Judge Thomas L. Ambro and a district judge sitting by designation joined.

The fourth case in which the Supreme Court agreed with the Third Circuit's approach last term was Moncrieffe v. Holder, No. 11-702. In that case, the Supreme Court held that an alien's state conviction for possession of marijuana with intent to distribute did not constitute an aggravated felony under the Immigration and Nationality Act. In so ruling, the Supreme Court agreed with the Third Circuit's 2003 ruling in Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003). Former Third Circuit Judge Michael Chertoff wrote the decision in Wilson, in which then-Third Circuit Judge Samuel A. Alito Jr. and Ambro joined. Interestingly, Alito dissented from the Supreme Court's decision in Moncrieffe.

The fifth and final case in which the Supreme Court sided with the Third Circuit's approach in the just-completed term was United States v. Davila, No. 12-167. The question presented was whether, in a federal criminal prosecution, the participation of the trial court in plea discussions, in violation of the applicable Federal Rule of Criminal Procedure, required that the resulting guilty plea be set aside automatically, even if the participation did not cause any harm or prejudice to the defendant. The Supreme Court answered "no," holding that harm to the defendant must be shown to set aside the plea. In so ruling, the Supreme Court agreed with the Third Circuit's 2002 ruling in United States v. Ebel, 299 F.3d 187. Judge Jane R. Roth wrote the opinion in Ebel, in which Judge Julio M. Fuentes and a district judge sitting by designation joined.

Overall, the three cases in which the Supreme Court disagreed with the Third Circuit's approach last term were not as significant as the cases in which the high court agreed with the Third Circuit's approach. In McBurney v. Young, No. 12-17, the Supreme Court held that a Virginia law granting only citizens of that state access to public records but providing no similar right of access to noncitizens of Virginia did not violate the U.S. Constitution's privileges and immunities clause. In so ruling, the Supreme Court disagreed with the Third Circuit's 2006 ruling in Lee v. Minner, 458 F.3d 194, 196 (3d Cir. 2006). Judge D. Brooks Smith wrote the opinion in Lee, in which Judge Maryanne Trump Barry and a district judge sitting by designation joined.

Next, in Chaidez v. United States, No. 11-820, the Supreme Court held that its earlier ruling in Padilla v. Kentucky, 559 U.S. 356 (2010), requiring defense counsel to advise a defendant about the risk of deportation arising from a guilty plea, did not apply retroactively for purposes of habeas relief. In so ruling, the Supreme Court disagreed with the Third Circuit's ruling in United States v. Orocio, 645 F.3d 630, 634 (3d Cir. 2011). The late U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania, sitting by designation, wrote the Third Circuit's decision in Orocio, in which Fuentes joined. Judge Michael A. Chagares dissented in relevant part.

Lastly, in Evans v. Michigan, 568 U.S. (2013), the Supreme Court ruled that retrying a criminal defendant after the trial court directed a verdict of acquittal, based upon its view that the state had not provided sufficient evidence of a particular element of the offense, violates double jeopardy even if the supposedly missing element actually never was an element of the offense. In so ruling, the Supreme Court disagreed with the Third Circuit's decision in United States v. Maker, 751 F.2d 614 (3d Cir. 1984). The late Judge Edward R. Becker wrote the opinion in Maker, in which Weis and a district judge sitting by designation joined.

The Third Circuit's 5-3 record in the eight cases in which the Supreme Court resolved cases arising from other courts but presenting a conflict involving the Third Circuit is certainly far better than that court's 1-5 record last term in cases that reached the Supreme Court directly from the Third Circuit. Combining the two numbers shows that the Supreme Court, on an overall basis, agreed with the Third Circuit last term six times and disagreed with the Third Circuit eight times. While this overall result is not as positive as it has been in some recent earlier years, it is still pretty good as far as these things go. Indeed, if the Supreme Court remains relatively conservative, but the regional appellate courts become somewhat more liberal, these overall agreement and affirmance rates could decline further in the near future.

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