Upon Further Review
The U.S. Supreme Court, in its just-completed term, issued a total of 65 signed opinions in argued cases and 10 summary reversals without oral argument. Five argued cases reached the Supreme Court directly from the U.S. Court of Appeals for the Third Circuit, as did two summary reversals. In eight other argued cases that the Supreme Court decided in its recently completed term, the high court noted that it was resolving conflicts that involved the Third Circuit.
Given the abundance of material to discuss in this year’s Third Circuit Report Card, my description of how the Third Circuit fared in the 2011-12 term will be divided into two parts. Today’s column will review the outcomes of the cases that reached the U.S. Supreme Court directly from the Third Circuit. My August column will discuss how the Third Circuit performed in the eight other argued cases that presented circuit splits expressly involving the Third Circuit.
In the five argued cases that reached the Supreme Court directly from the Third Circuit, the Supreme Court affirmed the Third Circuit three times and disagreed with the Third Circuit the remaining two times. However, the Third Circuit’s highly commendable 60 percent affirmance rate in argued cases is reduced to a 43 percent affirmance rate when the two summary reversals that the Third Circuit suffered last term are taken into account.
The seven cases from the Third Circuit that the Supreme Court decided on the merits last term exceeded the number of cases that the Supreme Court considered from any other federal appellate court except for the Ninth Circuit. Last term, the Supreme Court decided 24 cases arising from the Ninth Circuit. In third place was the Sixth Circuit, from which the Supreme Court decided five cases. But unlike the Ninth Circuit, which achieved an affirmance rate of only 29 percent, or the Sixth Circuit, which failed to attain even a single affirmance, the Third Circuit’s 43 percent affirmance rate was better than average last term. Out of the 75 cases that the Supreme Court decided on the merits last term, only 37 percent were affirmed.
The most newsworthy of the seven cases from the Third Circuit that the U.S. Supreme Court decided on the merits last term involved a constitutional challenge to Burlington County, N.J.’s policy of subjecting to strip searches all arrestees placed into a jail’s general population. In an opinion written by Circuit Judge Michael A. Chagares, in which Circuit Judge Dolores Sloviter joined, the Third Circuit ruled that the county’s strip search policy was constitutional. Senior U.S. District Judge Louis H. Pollak, sitting by designation, dissented from the Third Circuit’s ruling.
The Supreme Court affirmed by a 5-4 margin, agreeing that the strip search policy was constitutional. Justice Anthony M. Kennedy wrote the majority opinion, in which Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined. Justice Stephen G. Breyer wrote a dissenting opinion, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined.
A second newsworthy case that reached the Supreme Court from the Third Circuit last term involved Social Security benefits and the miracles of modern science. Before beginning cancer treatment that threatened to render him infertile, Robert Capato donated to a sperm bank. After Capato died, his wife began in vitro fertilization efforts using the sperm Capato had donated. Eighteen months after Capato’s death, his wife gave birth to twins. At issue in the case was whether the twins qualified as Capato’s "children" for purposes of the Social Security Act’s surviving child’s insurance benefits provision.
The Third Circuit, in an opinion written by Circuit Judge Maryanne Trump Barry, in which Circuit Judges Chagares and Thomas I. Vanaskie joined, ruled that the twins qualified for benefits under the Social Security Act. By a vote of 9-0, the U.S. Supreme Court disagreed, in an opinion written by Ginsburg. The Supreme Court returned the case to the Third Circuit for consideration of other grounds on which the twins might nevertheless qualify to receive Social Security benefits.
Federal pre-emption under the Locomotive Inspection Act gave rise to the issues that the Supreme Court considered in a third case arising from the Third Circuit. The estate of a deceased welder and machinist for a railroad carrier brought an asbestos exposure lawsuit alleging design defect and failure-to-warn claims. The Third Circuit, in an opinion by Chagares, in which Circuit Judges Marjorie O. Rendell and Thomas L. Ambro joined, ruled that federal law pre-empted both the estate’s design defect and failure-to-warn claims.
The U.S. Supreme Court affirmed in an opinion written by Thomas. However, three justices dissented in part, explaining that in their view the Locomotive Inspection Act did not pre-empt the estate’s failure-to-warn claim.
The remaining four cases from the Third Circuit that the Supreme Court directly reviewed last term all involved criminal law issues. The Supreme Court’s very first signed opinion of the 2011-12 term unanimously affirmed the Third Circuit’s ruling in a state habeas corpus case. In affirming the Third Circuit, the Supreme Court ruled that "clearly established federal law, as determined by the Supreme Court of the United States" under the applicable federal habeas corpus statute consists of only the Supreme Court’s decisions as of the time of the relevant state-court adjudication on the merits.
In so ruling, the Supreme Court affirmed a decision that Circuit Judge D. Brooks Smith wrote, and in which a federal appellate judge sitting by designation from another federal appellate court joined. Ambro dissented from the Third Circuit’s ruling.
The fifth and final case arising from the Third Circuit in which the Supreme Court heard oral argument last term involved the federal Sex Offender Registration and Notification Act (SORNA). At issue was whether that federal law’s registration requirement applied to a defendant who was convicted as a sex offender before SORNA became law. The Third Circuit ruled that the law applied to the defendant in question. Smith wrote the Third Circuit’s ruling, in which Circuit Judges D. Michael Fisher and Walter K. Stapleton joined.
In a 7-2 decision written by Breyer, the justices rejected the Third Circuit’s analysis and returned the case to the Third Circuit for further consideration of SORNA’s applicability to the defendant. Scalia issued a dissenting opinion, in which Kagan joined.
The remaining two cases from the Third Circuit that the Supreme Court reviewed last term fall into the category of summary reversals. Although the Supreme Court does not consider itself to be primarily an error-correcting court, on occasion the Supreme Court will reverse a federal appellate court’s ruling without oral argument where the decision appears to be clearly incorrect. Often, summary reversals involve an appellate court’s grant of federal habeas corpus relief to a state prisoner.
On May 29, the Supreme Court issued a unanimous summary reversal of the Third Circuit’s ruling in a case captioned Coleman v. Johnson . The majority on a divided Third Circuit panel had concluded that a state prisoner was entitled to habeas relief on his sufficiency of the evidence claim. Senior Circuit Judge Richard L. Nygaard wrote the Third Circuit’s decision, in which Chief Judge Theodore A. McKee joined. Chagares dissented from the grant of habeas relief.
The Third Circuit’s other summary reversal occurred on Feb. 21, in a case captioned Wetzel v. Lambert . Therein, the Supreme Court ruled by a vote of 6-3 that the Third Circuit erred in granting habeas relief in favor of a defendant convicted of first degree murder in Pennsylvania state court. Barry was the author of the Third Circuit’s ruling in that case, in which Judges Thomas M. Hardiman and Stapleton joined.
The Third Circuit’s performance at the Supreme Court in the 2011-12 term was praiseworthy regardless of whether the two summary reversals suffered last term are considered. Next month, I will examine how the Third Circuit’s rulings fared at the Supreme Court in cases on direct review from other federal appellate courts. •
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 email@example.com. You can access his appellate Web log at http://howappealing.law.com