Report Card From the US Supreme Court: How Third Circuit Fared in 2017-18 Term

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Howard Bashman.[/caption] Upon Further Review The U.S. Supreme Court returned to full strength for its just-concluded 2017-2018 term, which will now be remembered as the final term in which Justice Anthony Kennedy served before announcing his retirement. Three of the cases the court decided this past term arose directly from the U.S. Court of Appeals for the Third Circuit, while in another six cases the court expressly noted that it was resolving conflicts that involved the Third Circuit. The Third Circuit’s overall approval rate this past term was 33 percent, a little worse than the 44 percent approval rate from the year before, but a little better than the 25 percent approval rate from the 2015-2016 term. In all three of the cases that reached the Supreme Court directly from the Third Circuit this past term, the Supreme Court reversed. In Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018), the Supreme Court struck down as unconstitutional under the anti-commandeering doctrine of the Tenth Amendment a federal law that made it unlawful for states to license sports gambling. The Supreme Court’s ruling, written by Justice Samuel Alito Jr., reversed the Third Circuit’s en banc decision in NCAAv. Governor of New Jersey, 832 F.3d 389 (3d Cir. 2016). Senior Circuit Judge Marjorie O. Rendell wrote the majority opinion for the en banc court. Although three judges dissented from the Third Circuit’s en banc ruling, only Judge Thomas I. Vanaskie dissented on the anti-commandeering ground that formed the basis of the U.S. Supreme Court’s ruling in the case. The second case in which the Supreme Court reversed the Third Circuit this past term, this time unanimously, was Byrd v.United States, 138 S. Ct. 1518 (2018). At issue in Byrd was whether a driver in lawful possession of a rental car, but who was not listed as an authorized driver on the rental agreement, had a reasonable expectation of privacy under the Fourth Amendment, thereby requiring police to have probable cause to justify a warrantless search of the vehicle. The Supreme Court, in an opinion by Kennedy, ruled in favor of the vehicle’s driver. In so holding, the Supreme Court reversed the Third Circuit’s ruling that the driver did not have standing to object to law enforcement’s search of the vehicle. A federal appellate court judge visiting from another circuit wrote the nonprecedential Third Circuit decision that the U.S. Supreme Court reviewed and reversed. Judge Cheryl Ann Krause and Senior Judge D. Michael Fisher joined the opinion. The Third Circuit in Byrd noted that its holding in this regard was compelled by the earlier precedential ruling of the court in United Statesv. Kennedy, 638 F.3d 159 (3d Cir. 2011). Judge Julio M. Fuentes wrote the opinion in Kennedy, in which Judge Kent A. Jordan and Senior Judge Ruggero J. Aldisert joined. Hall v.Hall, 138 S. Ct. 1118 (2018), was the third and final case in which the Supreme Court reviewed and reversed, again unanimously, a Third Circuit decision last term. Chief Justice John Roberts Jr. wrote the opinion. In Hall, the Supreme Court held that when one of several consolidated results in a final decision, the losing party has the immediate right to appeal, even if another consolidated case remain pending. Jordan wrote the Third Circuit’s unpublished decision in Hall, in which Judges Michael A. Chagares and Thomas M. Hardiman joined. The remaining six cases discussed below reached the U.S. Supreme Court from other courts, but in each of these cases the Supreme Court expressly noted that it was resolving conflicts that involved the Third Circuit. In Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018), the Supreme Court ruled, in an opinion by Justice Sonia Sotomayor, that a federal district court’s miscalculation of a federal criminal defendant’s sentencing guidelines range would, in the ordinary case, seriously affect the fairness, integrity, or public reputation of judicial proceedings under the so-called “plain error” test. In so ruling, the Supreme Court agreed with the Third Circuit’s decision in United States v. Dahl, 833 F.3d 345 (3d Cir. 2016). Senior Circuit Judge Anthony J. Scirica wrote the opinion in Dahl, in which Chagares and Krause joined. In Wilson v.Sellers, 138 S. Ct. 1188 (2018), the Supreme Court (per Justice Stephen G. Breyer) held in a habeas case brought by a state prisoner that the federal district court should ordinarily rely on the explanation that a lower state court provided earlier in the case when the final state appellate court’s ruling in the case was unaccompanied by any explanation. In so ruling, the Supreme Court agreed with the Third Circuit’s ruling in Bondv. Beard, 539 F.3d 256 (3d Cir. 2008). Judge Thomas L. Ambro wrote the decision in Bond, in which then-Circuit Judge D. Brooks Smith and Aldisert joined. The third and final case in which the Supreme Court agreed with the Third Circuit last term was an immigration case titled Pereira v. Sessions, 138 S. Ct. 2105 (2018). Under federal immigration law, an alien who is subject to removal proceedings and has accrued 10 years of continuous physical presence in the United States may be eligible for cancellation of removal. At issue was whether the 10-year period ceases once the federal government serves on the alien a “notice to appear” for a removal proceeding but the notice fails to specify either the time or place of the removal proceedings. In an opinion by Sotomayor, the Supreme Court ruled 8-1 that service on the alien of this sort of defective notice does not stop the 10-year period from continuing to accrue. In so ruling, the Supreme Court agreed with the Third Circuit’s ruling in Orozco-Velasquez v. Attorney General, 817 F.3d 78 (3d Cir. 2016). Senior Judge Jane R. Roth wrote that decision, in which then-Chief Judge Theodore A. McKee and Ambro joined. Turning now to the bad news, in Murphyv. Smith, 138 S. Ct. 784 (2018), the Supreme Court ruled (per Justice Neil Gorsuch) that under the Prison Litigation Reform Act, a prevailing prisoner must pay his attorney fees from the plaintiff’s judgment until it reaches the statutory 25 percent cap before turning to the defendant for payment of any remaining attorney fee. In so ruling, the Supreme Court disagreed with the Third Circuit’s ruling in Parker v. Conway, 581 F.3d 198 (3d Cir. 2009). Chagares wrote that opinion, in which Fisher and Senior Judge Robert E. Cowen joined. In China Agritech v. Resh, 138 S. Ct. 1800 (2018), Justice Ruth Bader Ginsburg, on behalf of a unanimous court, held that where class certification is denied, a class member cannot file a new class action and argue that the new case is timely because the statute of limitations had been tolled while the prior class action was pending. In so ruling, the Supreme Court disagreed with the Third Circuit’s decision in Yangv. Odom, 392 F.3d 97 (3d Cir. 2004). Smith wrote that opinion, in which a federal district judge sitting by designation joined. Then-Circuit Judge Alito dissented in part. Lastly, in Merit Management Group LP v. FTI Consulting, 138 S. Ct. 883 (2018), Sotomayor on behalf of a unanimous court, disagreed with the Third Circuit’s decision in In re Resorts International, 181 F.3d 505 (3d Cir. 1999), concerning when a bankruptcy trustee can avoid a transfer under the Bankruptcy Code’s “securities safe harbor” provision. Judge Richard L. Nygaard wrote the Third Circuit’s decision, in which Alito and then-Circuit Judge Timothy K. Lewis joined. Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. Follow him on Twitter @howappealing.