The U.S. Supreme Court, in its just-completed term, issued a total of 67 signed opinions in argued cases. Only one of those cases reached the Supreme Court directly from the Third U.S. Circuit Court of Appeals, and in that case the Third Circuit suffered a unanimous reversal.
Yet the Third Circuit did not receive only bad news from the Supreme Court this term, as the Third Circuit’s jurisprudence fared better when it was implicated in circuit splits presented in cases arising from other federal appellate courts.
The Supreme Court in 10 other cases noted that it was resolving conflicts that involved the Third Circuit. In these other 10 cases, the Supreme Court approved of the Third Circuit’s approach six and a half times, while disagreeing with the Third Circuit’s approach three and a half times.
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp. was the only case from the Third Circuit in which the Supreme Court heard oral argument and issued a signed opinion in the October 2006 term. At issue was whether a federal district court may grant a defendant’s motion to dismiss a lawsuit due to the inconvenience of the forum before deciding whether the district court possessed subject matter jurisdiction over the suit.
The Third Circuit had ruled that a district court must first conclude that it possesses subject matter jurisdiction before granting a defendant’s forum non conveniens motion. Judge Thomas L. Ambro issued the majority opinion, in which a judge visiting from the Ninth Circuit joined. Judge Walter K. Stapleton dissented, arguing that a district court should be permitted to dismiss based on inconvenience of the forum if that presents the easiest basis for disposing of the suit. The Supreme Court unanimously agreed with Stapleton’s dissent in an opinion written by Justice Ruth Bader Ginsburg.
Although the Third Circuit suffered reversal in the only case in which the Supreme Court directly reviewed its work, the Third Circuit fared better in cases arising from other federal appellate courts presenting conflicts that implicated Third Circuit rulings.
In Brendlin v. California, where Justice David H. Souter delivered the unanimous opinion, the Supreme Court held that a passenger in a motor vehicle is seized within the meaning of the Fourth Amendment when the police make a traffic stop of the vehicle and, therefore, the passenger may challenge the constitutionality of the stop. In so ruling, the Supreme Court sided with the Third Circuit’s approach in United States v. Mosley, a decision from 2006 that Judge D. Michael Fisher wrote and in which Judge Michael A. Chagares and a judge visiting from the Fifth Circuit joined.
In Osborn v. Haley, the Supreme Court resolved a challenge to the removal of a lawsuit from state court to federal court pursuant to the Westfall Act, which provides federal employees absolute immunity from tort claims arising out of acts undertaken in the course of their official duties. The court held, in a majority opinion by Ginsburg, that removal is proper even if the federal employee asserts that the incident at issue in the suit never occurred, and that once a case is removed under the Westfall Act it cannot be remanded back to state court.
In so ruling, the Supreme Court approved of two separate Third Circuit rulings: Melo v. Hafer, a 1994 ruling written by Stapleton, in which Judges Morton I. Greenberg and Jane R. Roth joined; and Aliota v. Graham, a 1993 ruling written by then-Judge Samuel A. Alito Jr., in which Judges Edward R. Becker and William D. Hutchinson joined.
In Norfolk Southern R. Co. v. Sorrell, the court considered, in a railroad worker’s personal injury claim arising under the Federal Employers’ Liability Act, whether the same causation standard applies to railroad negligence as to employee contributory negligence. In an opinion by Chief Justice John G. Roberts Jr., the court answered “yes.” In so ruling, the Supreme Court agreed with a Third Circuit ruling from 1995 written by Greenberg, in which Roth and Judge Ruggero J. Aldisert joined.
In James v. United States, the Supreme Court ruled 5-4, with Alito writing the majority opinion, that attempted burglary constitutes a “violent felony” for purposes of imposing a lengthier sentence under the federal Armed Career Criminal Act. The majority opinion cited with approval a Third Circuit ruling from 1992 written by Judge Robert E. Cowen, in which Hutchinson and Judge Leonard I. Garth joined.
In Safeco Ins. Co. of America v. Burr, a nearly unanimous court in an opinion by Souter construed the federal Fair Credit Reporting Act to provide that “reckless disregard” of that law’s obligations equals willfulness. In so ruling, the Supreme Court sided with a Third Circuit decision from 1997 that Cowen wrote, and in which Judges Anthony J. Scirica and Richard L. Nygaard joined.
And in Lopez v. Gonzales, the Supreme Court by a vote of 8-1 held that a drug offense made a felony under state law but constituting a misdemeanor under federal law is not a “felony punishable under the [federal] Controlled Substances Act” for purposes of deciding an alien’s removability under federal immigration law. Souter’s opinion for the court sided with a Third Circuit decision from 1999 that Becker wrote and Nygaard joined. A judge visiting from the Fifth Circuit dissented.
The chief justice’s opinion for a unanimous court in Jones v. Bock, a case involving exhaustion under the Prison Litigation Reform Act of 1995, approved of one Third Circuit ruling but disapproved of another. The Supreme Court agreed with a Third Circuit ruling from 2002 that exhaustion of administrative remedies is an affirmative defense rather than an element that an inmate must plead to state a viable claim. Judge Dolores K. Sloviter wrote that decision, in which Stapleton and Judge Theodore A. McKee joined.
Yet the ruling in Jones also disapproved of a separate, unpublished Third Circuit decision holding that where a prisoner’s complaint contains both exhausted and unexhausted claims, the entire complaint can be dismissed. Judges Marjorie O. Rendell, Fisher, and Franklin S. Van Antwerpen were on the panel that issued that nonprecedential, per curiam opinion.
In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled 5-4 that the time to sue for an alleged sex-based disparity in pay is when the original disparity arose, and the employer’s continued issuance of paychecks reflecting the disparity does not constitute independently actionable wrongs. Alito’s majority opinion thus disagreed with a Third Circuit ruling from 2001 written by Sloviter, in which Nygaard and Roth joined.
In Winkelman v. Parma City School Dist., Justice Anthony M. Kennedy issued a majority opinion holding that parents possess the right under the Individuals With Disabilities Education Act to pursue litigation on a pro se basis to enforce their child’s right to a free appropriate public education. The Supreme Court’s ruling disagreed with a 1998 Third Circuit ruling that Becker wrote, and in which a visiting federal district judge joined. Roth dissented, advocating a position with which the Supreme Court ultimately agreed.
Finally, in United States v. Atlantic Research Corp., Justice Clarence Thomas, on behalf of a unanimous court, held that two separate provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 allow potentially responsible parties (PRPs) to seek to recover environmental cleanup costs from other PRPs. The Supreme Court’s ruling thus disagreed with a Third Circuit decision from 2006 refusing to recognize one of those statutory claims. Ambro wrote that Third Circuit ruling, in which a judge visiting from the Federal Circuit joined. Sloviter dissented, advocating a position with which the Supreme Court agreed.
To summarize, although the Third Circuit suffered reversal in the only case that reached the Supreme Court this term on direct review, in another 10 cases the Supreme Court approved of Third Circuit rulings 65 percent of the time. The Third Circuit’s overall success rate for the 2006 Term was a respectable 59 percent.
Bashman operates his own appellate litigation boutique in Willow Grove, Pa. You can access his appellate Web log at http://www.appellateblog.com/.