Memphis, head coach James Borrego explained the reasoning for his benching. The Red Sox traded Benintendi along with an unspecified amount of. Fabio Fognini and Salvatore Caruso had to be separated by the court supervisor after the first all-Italian Australian Open men's singles match of the open era ended in uproar on Thursday. The compatriots had battled it out over nearly four hours in the John Cain Arena before 16th seed Fognini emerged a 12 winner.
The traditional handshake at the net quickly degenerated into a heated argument when Fognini suggested Caruso had been lucky on some points in the match, an observation the Sicilian objected to. Brady and Mahomes were mic'd up for their postgame chat. Jeremy Maclin retired two years ago, but the former Eagles wideout hasn't been sitting around. By Adam Hermann. With five quarterbacks going in Round 1, it could be a wild ride early in the NFL draft.
Busch and Adam Stevens won 28 races and two championships together over six seasons and Busch wanted to keep the relationship going. Washington's cheerleaders retained attorneys in August. Read full article. Latest Stories. The Independent. NBC Sports Boston. Sixers Wire. Cowboys Wire. Colts Wire. Lonzo Wire. Steelers Wire. NBC Sports. Patriots Wire. NBC Sports Philadelphia.
The district court denied this motion, too. The Third Circuit vacated and remanded. After first ruling that it had jurisdiction to hear interlocutory appeals from denials of motions to withdraw based on conflicts of interest, it got to the merits:.
It must first determine whether there is an actual of-counsel relationship between Golubitsky and DiRuzzo in other words, whether the facts on the ground are as the parties allege. But the Court should also determine whether Golubitsky and DiRuzzo associated to create a conflict.
If the answer is yes, it may want to take disciplinary action. In that scenario, Golubitsky would probably be disqualified from representing Bellille based on the manufactured conflict and sanctionable conduct. If even one is not met—for example, if the Court concludes that the representation involves the assertion of a claim by one client against another client in the same litigation, or Bellille and Ayala did not consent in writing to the representations—the Court must grant the motion to withdraw.
Joining Ambro were Greenaway, Jr. The settlement of the lawsuit brought by former pro football players against the National Football League has generated a series of legal battles. In this latest round, a group of former players challenged various rules enacted by the settlement claims administrator for distributing settlement funds to former players seeking compensation.
The Third Circuit rejected both arguments and affirmed. This opinion issued yesterday. Davis v. Samuels, Jr. A man confined in a private prison that holds foreign nationals facing deportation sued the prison after it denied his request to let him get married. His suit raised several claims, all of which the district court dismissed. Yesterday the Third Circuit reversed in part.
One claim sought money damages under Bivens for violation of his right to marry. The district court dismissed that claim on the theory that the private prison administrators were not federal actors, despite acting under contract with the federal government. The district court dismissed the claim applying the standard that applies to conspiracies by private actors, but the Third Circuit held that it was error to apply that standard to an alleged conspiracy involving both private and governmental actors.
The district court also dismissed various claims against governmental defendants, sua sponte , for failure to serve them, without considering whether to extend the time for service. The Third Circuit vacated that ruling as an abuse of discretion. The appellants raised various other claims which the district court dismissed where the Third Circuit affirmed, including a claim for lack of state rather than federal action and and d claims for lack of plausible allegations of national-origin discrimination.
Joining Jordan were Restrepo and Greenberg. The district court denied the petition without an evidentiary hearing and did not even grant a certificate of appealability. Today, the Third Circuit vacated and remanded, holding that the district court abused its discretion in denying the motion without an evidentiary hearing. The court also considered the possibility that the case became moot when the petitioner was released from prison during the pendency of the appeal, concluding it did not because he still is subject to supervised release.
Waterfront Commission of N. Harbor v. Governor N. The federal courts lack jurisdiction to hear a lawsuit trying to prevent New Jersey from leaving an interstate compact, the Third Circuit held Friday. The compact, called the Waterfront Commission Compact, was formed in the s between New Jersey and New York to regulate shipping-harbor hiring practices.
The district court granted summary judgment in favor of the Commission, but the Third Circuit vacated its ruling, holding that, because New Jersey was the real party in interest, the suit impinged on its sovereign immunity in violation of Ex parte Young. Joining Smith were Hardiman and Krause. Torres —criminal—affirmance—Porter. After a bench trial, the District Court found Michael Torres guilty of possessing a firearm as a convicted felon, in violation of 18 U.
The District Court imposed a fifteen-year mandatory-minimum sentence under 18 U. Torres raises two arguments on appeal. First, he contends that the District Court erred by denying his motion to suppress the firearm. Second, Torres argues that his prior federal drug conspiracy conviction does not qualify as an ACCA predicate offense because it encompasses his other two substantive ACCA predicates.
We will affirm. The firearm was discovered during a valid investigative stop. And we will join our sister circuits in holding that a drug conspiracy conviction counts as an ACCA predicate offense, so long as it was distinct in time from the underlying substantive offenses. On the Fourth Amendment issue, the court upheld denial of suppression because it was seized during a valid Terry investigative stop based on an anonymous tip.
In a footnote, the court observed that the officer believed that his body camera captured the stop but it malfunctioned. On the ACCA issue, the court held that the conspiracy offense was distinct from the underlying substantive offenses, even though the underlying offenses were encompassed in the conspiracy offense, because they conspiracy continued for a year after the later substantive offense and included numerous other overt acts.
Deon v. A large majority of states with legalized gambling have no such restriction. The district court ruled in their favor, and today the Third Circuit affirmed. Perhaps the Commonwealth is accurately asserting that, like New Jersey and Louisiana, the presence of the gaming industry within its borders creates the need for a law with the breadth of Section But the inescapable fact here is that the experience of nineteen other states with commercial, nontribal casinos has not generated a similar legislative judgment.
And because these schemes place less of a burden on First Amendment rights, the Commonwealth—at a minimum—had the burden of showing why the experiences of New Jersey and Louisiana provide a better basis to assess the proportionality of Section than one of these other states. It relies on the histories and legislative judgments of two states with similar laws to make its case here. But it does so without reference to states that have taken different approaches less burdensome to First Amendment rights.
Our assessment of fit is meaningless unless we can be sure that it is fixed to a reasonable understanding of the real world that Pennsylvania faces. Ultimately, this dearth of evidence is why the Commonwealth falls well short of its burden to show that Section is closely drawn.
Like the District Court, we do not conclude that it is impossible for the Commonwealth to defend the proportionality of its law. We only conclude that it has failed to give us enough information to assess it here. This failure is dispositive.
Joining Nygaard were Jordan and Bibas. Arguing counsel were Howard Hopkirk of the Pa. Norman v. Elkin —civil—partial reversal—Jordan. When a court of appeals begins to lose its good humor with a long-running case, the opening sentence of its opinion reads something like this one:. This appeal, the second we have been asked to decide in this case, marks what is, one hopes, effectively the final chapter of a bitter dispute spanning more than 14 years and involving state and federal courts, two different district court judges, two jury trials, and seemingly innumerable procedural and dispositive motions, both pre- and post-trial.
Garner —criminal—affirmance—Hardiman. Eshleman v. Patrick Indus. The introduction explains:. Eshleman claimed that Patrick Industries regarded him as disabled in violation of the Americans with Disabilities Act of the ADA 1 because he took two months of medical leave for a lung biopsy procedure and two vacation days for an upper respiratory infection.
Joining McKee were Smith and Phipps. Doe v. A male college student was accused by two female students at the school of having sexual intercourse with each of them without consent. One alleged that she passed out from drinking at a party and woke to him having sex with her, and the other alleged that, after prior consensual sex, she refused to have sex without a condom but he did so anyway.
The district court dismissed, but today the Third Circuit reversed. As to the Title IX claim, the court joined the Seventh Circuit against at least four other circuits as to the pleading standard, holding that a Title IX claim simply requires facts supporting a plausible inference that the school discriminated against the person on the basis of sex. Joining Porter were Restrepo and Matey.
Portanova —criminal—affirmance—Fuentes. The defendant here pleaded guilty to the federal offense had a prior Pennsylvania conviction for child-pornography possession, but he argued that the mandatory minimum did not apply to him because 1 the Pa. Today, the Third Circuit rejected both arguments. Joining Fuentes were Shwartz and Scirica. The case was decided without oral argument, which I view as unfortunate.
Wilson —criminal—affirmance—Bibas. Criminal defendants have a Sixth Amendment right to choose the ultimate objectives of their defense. That includes the right to maintain their factual innocence, even if their lawyers advise them to admit guilt. But their lawyers call the shots on the tactics used to achieve those objectives. The convictions were for robbing federally insured banks, a crime which requires proof beyond a reasonable doubt that the bank was federally insured.
The old opinion is here , the new link in the heading is now to the new opinion. The order vacating the prior opinion states that the change was on page 24; the new opinion deleted the sentence that had a cite to Duka. Hardy v. Shaikh —prisoner rights—reversal—Krause.
We conclude that the District Court erred in finding that the second step of the grievance process here was available to the plaintiff, Steven Patrick Hardy, even though a prison counselor misled him into believing that after his grievance was rejected he should file a new one rather than appeal the rejection. The prisoner was battling to get treatment for his festering leg wound that ultimately required two partial amputations, but the prison deflected every attempt.
Here, in the face of confusing and evolving grounds for rejection, Hardy repeatedly requested relief for a manifestly serious medical complaint. Finding both prongs satisfied here, the court reversed. Joining Fisher were Restrepo and Roth. Reyes-Romero —criminal—reversal—Krause. Joining Krause were Smith and Hardiman.
Bacon v. The court also held that it had appellate jurisdiction over the arbitration denials, including a denial based on a disputed fact to be decided at trial and a denial that in essence was without prejudice subject to additional discovery. Joining Shwartz were Ambro and Bibas. Fischbein v. Olson Research Group —civil—reversal—Greenberg.
Joining Greenberg was Restrepo. Francisco-Lopez v. AG —immigration—reversal—Rendell. In , a immigrant from Guatemala who was a lawful permanent resident pled guilty to a crime. The government then initiated removal proceedings against the man on the theory that his conviction was for a CIMT, and the BIA ruled against him by applying its standard retroactively.
Joining four other circuits, the Third Circuit ruled that the BIA should not have retroactively applied its decision. Joining Rendell were Shwartz and Scirica. Kasdan for the petitioner and Craig Newell, Jr.
The new opinion is now linked above, the old opinion is here. Bradley —criminal—reversal—Jordan. Darrington v. Joining Porter were Greenaway, Jr. Lacerda —criminal—affirmance—Porter. The court held that it was not an abuse of discretion to admit testimony from an FBI special agent providing a lengthy narrative overview of the investigation. The Third Circuit has issued 11 opinions since my last blog post two and a half weeks ago.
PPG Industries v. Advanced Fluid Systems v. Huber —civil—affirmance—Jordan [April 30]. Coalition of Automotive Retailers v. Mazda Motor —civil —reversal—Greenberg [April 28]. Calderon-Rosas v. Joining Krause were Greenaway, Jr. Dooley v. Wetzel —prisoner rights—reversal—Rendell [April 27]. The base offense level for conspiracy to commit sex trafficking by force, fraud, or coercion, 18 USC c , is level 34, the base offense level of the underlying substantive crime, the Third Circuit held, splitting with the Ninth Circuit.
Ali v. Woodbridge Twp. After a district court entered a temporary restraining order that directed the immediate release of 20 immigration detainees due to COVID risk, the government appealed. Fogle v. Sokol —civil rights—partial reversal—Matey [April 20]. Lewis James Fogle spent more than three decades in prison for a crime he says he did not commit. Now free, he alleges that his incarceration was no accident, sketching a widespread conspiracy by law enforcement officials to violate his civil rights.
They all raise the shield of absolute immunity, a judicially created exception to 42 U. Fletcher , U. And so only truly prosecutorial functions, not investigative conduct, justify complete protection from suit. James v. Guzman v. AG —immigration—reversal—Roth. The court vacated the ruling of the Board of Immigration Appeals against Guzman on his asylum claim, holding that 1 persons who publicly provide assistance against major Salvadoran gangs qualify as a particular social group and thus are eligible for asylum and withholding of removal , 2 Guzman failed to prove persecution on account of political opinion, and 3 the BIA erred in concluding that Guzman was unlikely to face torture upon removal.
Joining Roth were Restrepo and Fisher. Joining Restrepo were Chagares and Jordan. McCafferty v. Even if they could, C. Tyler —criminal—reversal—Shwartz. Because 1 the District Court erred in ruling that Fowler v. United States, U. Joining Shwartz was Scirica, with Rendell dissenting in part.
Arguing counsel were Carlo Marchioli for the government and Quin Sorenson for the defendant. A direct link to the notice is here. Ricketts v. AG —immigration—affirmance—Jordan. Joining Jordan were Greenaway, Jr. Also today the Court granted an unopposed motion to amend and issued an amended opinion in Raia, the important COVID opinion it originally issued Friday. For anyone who cares, I want to explain briefly how it came to pass.
His appeal remains pending, currently on hold until the Supreme Court decides a potentially related case. Last month I came to believe that Davis is at risk from covid infection, so I filed a motion for his release pending appeal, which the government opposed and which a two-judge motions panel denied on March After denial of the motion, I came to believe that it was important that more lawyers try to get vulnerable clients out of prison, and also that more courts be granting such requests, without requiring a covid diagnosis.
Getting no response from the Inquirer, : , I tweeted along similar lines a few days later. Submitting an op-ed about a case of mine made me nervous, frankly. But because I saw it as an unusual and urgent situation, and because the court had ruled on the motion already, I went ahead and sent it off.
Flash forward a couple weeks. The government has again opposed the motion and it now is pending for decision before the court. The day after I filed the renewed motion, April 2, the Inquirer contacted me to say it had finally decided to run my op-ed.
After minor updating tweaks, my op-ed ran online starting Friday and will be in the print edition tomorrow. But in the end I decided my fear was unfounded and my message was one I still hoped the public would hear. This is all new to me. But any remand would be futile. Accordingly, since Rule 3 a 2 is inapt and since remanding the matter under Rule Davis , No.
June 3, available here. With COVID making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions. Berman expresses hope that counsel will seek reconsideration or emergency en banc review. Before , the only ones allowed to request compassionate release for a prisoner was the Bureau of Prisons; the First Step Act changed that, allowing prisoners to file compassionate-release motions for the first time.
Application of the day rule is a big deal. Compassionate release is the most broadly applicable tool available to courts, by far, to release prisoners during the pandemic. The more rigidly courts interpret the rule, the more people in prison die. We do not mean to minimize the risks that COVID poses in the federal prison system, particularly for inmates like Raia. Memorandum from Attorney Gen. James —criminal—affirmance—Shwartz. The Court today granted panel rehearing and issued an amended opinion still affirming the fraud conviction of a former Virgin Islands senator and author of the Manly Manners trilogy.
Folk —habeas—affirmance—Porter. The Third Circuit affirmed the denial of a motion raising a career-offender issue. The court also declined to issue a certificate of appealability for a challenge to an aggregate drug weight. The Third Circuit issued significant rulings today and yesterday, including an en banc ruling yesterday. Petitioner fled his home country of Ghana and entered the United States without authorization after his father and neighbors assaulted him and threatened his life when they discovered that he was in a same-sex relationship.
Petitioner seeks asylum and withholding of removal under the Immigration and Nationality Act INA and protection from removal under the Convention Against Torture CAT , because he fears being persecuted or tortured on account of his sexual orientation and identity as a gay man if returned to Ghana — a country that criminalizes same-sex male relationships and has no proven track record of combatting widespread anti-gay violence, harassment and discrimination.
He argues that the BIA erred in finding, among others, that he had not suffered past persecution and did not have a well-founded fear of future persecution. Arguing for the petitioner were law school students Paige Beddow and Scott Cain, while Jonathan Ross argued for the government.
Savage —criminal—affirmance—Fuentes. Appellant, Kaboni Savage, was convicted of drug offenses, money laundering, and witness tampering in Pursuant to 18 U. Physicians Healthsource v. Cephalon —civil—affirmance—Greenaway, Jr. In this digital age with myriad forms of communication, faxes no longer dominate, as they once did. Yet, faxes are the focus of our attention today. Although complicated by a phalanx of parties, the essence of this dispute is whether a pharmaceutical company violated a federal statute by impermissibly sending two faxes to a doctor.
The plaintiff-appellant in this case is Physicians Healthsource, Inc. The appellees in this case are Cephalon, Inc. The two faxes in dispute were sent to the PHI doctor on behalf of Cephalon. Additionally, PHI argues that if the faxes are found to be solicited , they nevertheless violated the TCPA by failing to include opt-out language.
The District Court granted summary judgment in favor of Defendants, finding that there was no genuine dispute of material fact that the faxes were solicited and that the TCPA does not require solicited faxes to contain opt-out notices.
For the reasons detailed below, we will affirm. Riccio v. Sentry Credit —civil—affirmance—Smith en banc. This case presents a question of statutory interpretation: does 15 U. It also presents a question of stare decisis: should our en banc Court resolve a circuit conflict by overturning a three-decades-old panel decision which has been eroded by intervening Supreme Court authority? Because we answer both questions affirmatively, we will overrule Graziano v.
In re: Kareem Sampson —habeas corpus—affirmance—per curiam. The James Byrne U. The closure order is posted on the EDPA website, direct link here. The Court having been informed that two attorneys who have appeared in court in the James A. Byrne U. Courthouse in the past two weeks are currently displaying symptoms consistent with COVID, and to protect the health and safety of the public, staff, and judicial officers from further exposure to or spread of the disease,.
With the concurrence of the Facility Security Committee, including the U. Courthouse in Philadelphia, Pennsylvania will be closed from noon on Wednesday, March 25, , through Sunday, March 29, No one will be permitted to enter the building during this closure with the exception of GSA-authorized cleaning personnel.
The Byrne Courthouse will reopen for official business on Monday, March 30, The drop box in the lobby of the Byrne Courthouse will not be available until Monday, March 30, The Third Circuit has posted the following important notice regarding procedures during the closure:.
Please include the appeal number in the subject line of the email. Any party who intends to file an emergency motion should call and leave a detailed message regarding the nature of the emergency and contact information. Chartis Property Casualty Co.
The Third Circuit remains open for business during the coronavirus pandemic. That includes continuing to hold the oral arguments it had already scheduled, and continuing to schedule new ones too. The court has given the power to decide how to hold each argument—either in person or by audio-only phone conference—to each panel. I do know that the lone argument last week was by phone, and I know that at least one of the arguments held this morning was by phone.
Since at least a good chunk of CA3 arguments are being done by phone, and since doing an appellate oral argument by phone is uncharted territory for almost all of us, I figured it might be helpful to offer a few suggestions for counsel preparing for one.
In addition to those four tips, I also have a suggestion. Stay focused. The best way to show your respect for the court is to respect their time by being prepared and focused, as always. But I think you should resist the temptation. Trust the judges to know all that already, and leave any solemnizing remarks to them. Even in this extraordinary moment, ditch the wind-up and the throat-clearing and dive right in. Preparing for argument can be overwhelming in the best of times. Expect it to be that much harder and more stressful now.
Just be patient with yourself, and stay safe everyone. Attorney Benjamin Glassman. I acknowledge that there are sound reasons supporting that decision. Allowing parties to request argument by phone reduces the risk of infection to attorneys and court staff on a case-by-case basis. Practicing social distancing themselves during continuing court operations reduces the risk of infection to judges, their clerks, and court staff.
But, in my view, those sound reasons all are overwhelmed a simple fact: continuing to hold live arguments increases the risk of judges being infected by coronavirus and dying, and increasing that risk is intolerable. Live arguments require judges to leave their homes, go out into the world, travel to the courthouse, and be in the courthouse.
I admire the Third Circuit and its judges for their willingness to carry on with live arguments now. But I believe the Court owes it to the country to protect its judges as best it can, so I hope the Court reconsiders. With offices, businesses, and schools across the circuit shut down for weeks to come, many are focused now on hunkering down with family, not keeping abreast of federal appellate doings. But the Third Circuit remains open, oral arguments remain scheduled, and filing deadlines remain in place.
This post aims to summarize matters. Yesterday the Third Circuit posted a notice on its website regarding court operations during the pandemic. Anyone with a pending or upcoming Third Circuit case should read the entire notice, but here are highlights to note:. The filing dates for those papers remain as stated in the statute or rule that confers jurisdiction. So appeals are still moving forward. My guess is that the odds of the conference going on as scheduled are more or less zero, and the choice will be between outright cancellation or postponing until fall.
Many of us have our hands more than full trying to keep up with appeals while dealing with homebound-kid freakouts, non- homebound-older-parent freakouts, and all the other stresses of a pandemic-plus-economic-meltdown. So, yes, none of us will be at our best.
James —criminal—affirmance—Fisher. Of that over eight years, at least a year and a half resulted from his prior Pennsylvania misdemeanor conviction for loitering. The main issue on appeal was whether using the loitering conviction to increase his over-eight-year sentence was allowed under the Sentencing Guidelines. Yesterday, the Third Circuit held that Pa.
The intro explained:. Yet there is and has long been a great variety of loitering provisions in force across the United States, and it is unclear which of those laws impose a sentence excludable under the Guidelines. In United States v. Hines , F. We conclude that loitering simpliciter under the Guidelines encompasses all those offenses that do not require, either explicitly or by judicial interpretation, a purpose to engage in some type of unlawful conduct.
We accordingly will affirm the judgment of the District Court. Druding v. The Third Circuit split with the Eleventh, which recently adopted an objective-falsity requirement. Razak v. Uber Technologies —civil—reversal—Greenaway, Jr. The district court granted summary judgment in favor of Uber because it concluded as a matter of law that the drivers had failed to show they were employees rather than independent contractors. Today, the Third Circuit vacated and remanded, holding that material factual issues precluded summary judgment, including over whether Uber exercised control over drivers and whether drivers could earn more through managerial skill.
Herrera-Reyes v. This case presents the question whether and under what circumstances threats of violence may contribute to a cumulative pattern of past persecution when not coupled with physical harm to the asylum-seeker or her family. We will therefore grant the petition for review and vacate and remand to the BIA. Footnote and record cite omitted. Guadalupe v. That trend continued today.
Diaz —criminal—affirmance—Rendell. I suspect both issues will have future application. As to the expert-testimony issue, the man was prosecuted for conspiring in a drug operation and the police officer testified as an expert witness that the man worked as an underling in the operation.
This testimony also violated Rule because the statements contained no coded terminology requiring interpretation and the officer simply added his conclusion that they referred to drug dealing. Joining Rendell were Jordan and Scirica. Walgreen Co. The question arose in a suit brought by two retail pharmacies against a pharmaceutical company, asserting antitrust claims assigned to the pharmacies by the wholesalers who bought the drugs from the pharmaceutical companies.
Joining Jordan were Scirica and Rendell. Baxter —criminal—reversal—Smith. A man mailed a package from South Carolina to an address in the Virgin Islands. Joining Smith were McKee and Shwartz. In re: Energy Future Holdings Corp. Fenicle —bankruptcy—affirmance—Krause. The Third Circuit today held that the chapter 11 bankruptcy reorganization plan of an asbestos company did not violate the due process rights of latent asbestos claimants, even though it included a bar date and did not establish a trust to pay future claims, because the plan allowed individual claimants whose asbestos-related injuries manifest after the bar date to reinstate them.
Bruce —criminal—affirmance—Shwartz. The Third Circuit today held that it was not plain error—indeed, was not error at all—to allow the government to seek a higher sentence based on his prior convictions. The defendant argued on appeal that the statute allowing the government to do so violated the non-delegation doctrine, but the court rejected this argument because it concluded that the statute delegated only executive power, not legislative power.
And not here. Federal district courts rarely have jurisdiction to hear disputes relating to removal. Instead, an alien must typically litigate his removal-related claims before an immigration judge. Then, after an order of removal, he may appeal to the Board of Immigration Appeals. Only after that may he file a petition for review with a court of appeals. Usually, district courts are not part of this process. But some immigration-related claims cannot wait.
For if these provisions did bar review of all claims before the agency issues a final order of removal, certain administrative actions would effectively be beyond judicial review. Appellants E. The Government seeks to return them to Mexico while it decides whether to grant them asylum or instead remove them to Guatemala. The District Court dismissed all their claims for lack of subject-matter jurisdiction. We see things differently. One claim, involving the statutory right to counsel, arises from the proceedings to remove them to Guatemala, so it can await a petition for review.
For these claims, review is now or never. So we will affirm in part and reverse and remand in part. It appears to me that the key holding is that immigrant children and others threatened with interim return versus permanent removal under the so-called Migrant Protection Protocols MPP may bring constitutional and CAT challenges to the interim return in district court, free from INA jurisdiction-stripping provisions. The opinion noted that the district court raised its ground for dismissal sua sponte and it declined supplemental briefing on the point.
It disapproved:. Our adversarial system relies on giving each side a full and fair opportunity to air its best arguments and authorities. Rarely should a court address a complex issue without the benefit of briefing. Joining Bibas were Ambro and Krause. Public filers will be unable to file documents during this time. This should impact few if any filing deadlines since Monday is a federal holiday, see FRAP 26, but it is a longer-than-usual downtime, so be aware of it if you plan to file anything in the next few days.
Permanent Easement for 1. This appeal arises from a dispute over how much a natural-gas pipeline owner must pay to the owners of private land for easements across their properties. It further held that the district court abused its discretion by failing to exclude it on both reliability and fit grounds. UPDATE: after the court posted the preceding two opinions at the usual time, it posted a third one later in the day. Hoffert —criminal—affirmance—Scirica. He was convicted and sentenced to four years, consecutive to his existing sentence.
On appeal, he challenged the statute of conviction as vague and overbroad and challenged the sufficiency of the evidence. The court rejected both arguments. This is a sad, strange little case, the sort that sometimes receives cursory or even flippant treatment by courts. It is careful and fair, an understated model of evenhanded judging, just like its author. Joining Scirica were Jordan and Rendell.
Ragbir v. Emphasis on narrow. The court today distilled prior caselaw to find five things the petitioner must show to qualify for coram nobis relief:. The opinion elaborates on the meaning of these five prerequisites. Joining Smith were Hardiman and Phipps. A direct link to the conference page, with an agenda, lodging info, and registration page, and more is here. Should you attend?
If you practice in the Third Circuit, then yes, absolutely. My first Third Circuit conference I barely knew anyone, and the last one I had joined the Third Circuit Bar Association and knew lots of folks, and both times it was terrific. And the CLE programming is first-rate and worth attending for all by itself. Johnson v. The Third Circuit granted habeas relief today. How they got there takes a little explaining.
Two men, Wright and Johnson, were tried together for a murder. Before the trial, Wright confessed to police and said Johnson was the shooter. If Wright were tried on his own, his own prior statement would have been admissible; if Johnson the other guy had been tried on his own, it would have in admissible. So, at a joint trial, is it admissible? In Bruton v. In federal habeas, the district court ruled that the state-court ruling was an unreasonable application of Bruton , but denied relief because it viewed the violation as harmless.
The Third Circuit reversed. It agreed that this was a clear Bruton violation and that the Pennsylvania ruling to the contrary was unreasonable. Joining Rendell were Krause and Matey. Greater Phila. Chamber of Commerce v. City of Phila. Philadelphia was the first city in the country to enact such an ordinance, and since it did so more than a dozen states and municipalities did the same. The ordinance was opposed by various businesses in the city including Comcast, and the city chamber of commerce sued to enjoin enforcement of the ordinance.
The district court enjoined the part of the ordinance that bars employers from asking about wage history as a commercial-speech violation, but denied the injunction as to the part that bars them from relying on wage history during hiring and salary negotiations. Today, the Third Circuit ruled for the city across the board. Joining McKee were Roth and Fuentes.
Arguing counsel were city solicitor Marcel Pratt for the city and Miguel Estrada of Gibson Dunn for the city chamber of commerce. The case also featured substantial amicus participation on both sides. Apple MacPro Computer —civil—reversal—Fuentes. Hendrickson —criminal—affirmance—Shwartz.
A Virgin Islands man being held in a territorial facility on territorial charges was found in possession of a cell phone without a SIM card, which he told guards he was using to play music. He was charged with and convicted of the federal crime of possessing prison contraband. On appeal, he challenged his conviction on two grounds.
The court rejected this argument too, holding that the prison-contraband-possession statute applied to persons being held, whether on federal charges or not, at a facility where federal prisoners were being held. Since the facility here also held federal prisoners, the court affirmed. Fishoff —criminal—affirmance—Roth. The rule is intended to protect laypersons who commit technical violations.
Because appellant Steven Fishoff did not establish a lack of knowledge of the rule that he pled guilty to violating and because his other procedural arguments fail, we will affirm the judgment of the District Court. Rosa v. Today, the Third Circuit held that this was error because the categorical approach is limited to the most similar federal analog, granted the petition for review, and remanded.
Joining Fuentes were McKee and Shwartz. And they use the same format for the appendix page numbers themselves. All of this is explained in a helpful page manual that the court sends out attached to the notice of inclusion. The only part that should be a challenge for any lawyers is that the appendix page numbers have to be applied by your pdf software. Adobe Acrobat, Foxit Phantom, etc. Honestly, weeding out anyone still doing that may be a bonus.
But, to be clear, this is still only a pilot program, it is not yet a requirement for all cases. Which brings me to my last point: that designation happens at the beginning of the case, amidst other standard beginning-of-the-case paperwork. It is a separate ECF entry. And be especially careful not to overlook it if you were not the lawyer originally appointed by the court.
The court does not re-enter the pilot-project notice each time substitute counsel appear. I humbly suggest that it should. So all counsel should be careful to review the case-opening docket entries to determine whether the appeal has been chosen for inclusion. Traps for the unwary aside, this is a positive step and I applaud the court for moving forward with it.
When the man then allegedly resisted efforts to put him on a plane, he was indicted the crime for hindering his removal. The man sought dismissal of the hindering charge on the ground that his lawyer at the underlying removal proceeding had been ineffective. Johnman, Jr.
If a person is convicted of more than one offense, does the statute require more than one special assessment? Joining Matey were Krause and Rendell. Da Silva v. A woman from Brazil came to the U. When she discovered one of his affairs, she confronted the woman and punched her twice in the nose. For this, she was prosecuted for assault in federal court and sentenced to 18 months in prison, and then the government began proceedings to deport her.
The opinion is a model of readable, unflashy judicial style. Joining Roth were McKee and Rendell. He was later convicted of wire fraud and embezzlement for submitting false expense invoices to the legislature and using most of the proceeds for personal benefit. It seems he wanted some historical records about a nineteenth century labor riot in order to make a movie about it, and the false invoices were connected to that, I think.
Anyhow, on appeal the erstwhile senator etc. The court rejected all four and affirmed. Cirko v. Commissioner of Social Security —civil—affirmance—Krause. Claimants for Social Security disability benefits are not required to exhaust constitutional challenges to the appointments of the administrative law judges who denied their claims.
That is, such claimants may raise Appointments Clause challenges in federal court even if they did not present them to the agency first. Joining Krause were Ambro and Bibas. A helpful reader alerted me to a remarkable Third Circuit oral argument held last week. Or, rather, not held. The case is Fisher v. Secretary , Links to the district court opinion here and order here. Counsel for the Commonwealth was Montgomery County, Pa. Robert Falin. I no longer believe that the lower court committed error.
I spent the past few days working on the case, reading the briefs, doing research, and as the hours passed the less and less comfortable I became with our position. And it dawned on me that if I, as a career prosecutor, was not feeling good about these arguments, then perhaps it was not appropriate to come and stand before the Court and argue and advocate for them.
So I am conceding that, I now believe there was no error below. After a pause, the court reconvened. Judge Restrepo continued:. I thank you for your candor. And we thank you very much for your candor in bringing this to us. After Judge Porter agreed with his colleagues, it was over, less then five-and-a-half minutes start to finish.
Dramatic moments in appellate oral arguments are few and far between, by design. This was extraordinary. Papera v. Quarried Bluestone Co. It gave them 60 days to either submit the settlement agreement for its approval or reopen the case and, when neither occurred, the court administratively closed the case.
But the settlement fell through and, after the day deadline, the plaintiffs refiled the suit. The district court granted summary judgment for the defendants based on claim preclusion. Today, the Third Circuit vacated and remanded. The dismissal of the original suit was without prejudice because it was voluntary and it did not explicitly and unambiguously say it was with prejudice, FRCivP 41a.
The court adopted two clear-statement rules:. For purposes of claim preclusion, we will construe unclear dismissal orders as voluntary rather than involuntary. And we will construe unclear first voluntary dismissals as without prejudice, so they will not preclude relitigating the same claims.
Only a clear and explicit statement will suffice to make a dismissal involuntary, or voluntary with prejudice. Two years ago, Tom Brier was a Third Circuit law clerk. Back in , Penn State news ran a profile of Brier in which he gushed about having butterflies looking forward to his clerkship for Judge Thomas Vanaskie.
According to the article, pundits expect Pa. If elected, Brier would reportedly be the youngest member of Congress. Brier clerked for Judge Vanaskie from to , meaning his clerkship ended a few months before Vanaskie took senior status and then retired.
After his clerkship, Brier joined Blank Rome in Philadelphia, when he decided to run for office to do something to help people. A nice profile is here. Holloway v. The federal statute that makes gun possession a crime for persons convicted of crimes punishable by imprisonment for more than a year is not unconstitutional as applied to a defendant convicted of driving under the influence of alcohol, the Third Circuit held today. Judge Fisher dissented, arguing that the prior conviction was not for a serious crime because it was classified as a misdemeanor, did not involve use of force, and resulted in a short actual sentence.
Both opinions brim with formalist reasoning generally, and specifically with analysis of how to determine what aspects of the various Binderup opinions are controlling precedent. Binderup itself endeavored to identify what was binding on future panels, and—perhaps inevitably—the majority and the dissent here disagree about whether that was controlling, too.
Joining Shwartz was Fuentes, with Fisher dissenting. Hodge, Jr. Here, the defendant was convicted and sentenced, then the Third Circuit vacated his sentence and remanded for resentencing, then the First Step Act took effect, before the resentencing occurred. Arguing counsel were Jennifer Blecher of the D. Danziger v. Verkamp —civil—affirmance—Bibas. Removal to federal court changes the field of play, but not the game being played.
Two law firms, Danziger and Morgan Verkamp, spent almost a year and a half in Pennsylvania state court disputing and ultimately taking discovery over a referral fee before any complaint was filed. After Morgan Verkamp removed the case to federal court, it successfully challenged personal jurisdiction. Danziger now argues that either there is specific personal jurisdiction over Morgan Verkamp in Pennsylvania or that Morgan Verkamp waived that objection.
Not so. Nor did Morgan Verkamp consent to personal jurisdiction by merely taking part in pre-complaint discovery, because Pennsylvania law does not let defendants object to jurisdiction until the plaintiff files a complaint.
And as we clarify today, a defendant who chooses to remove to federal court does not thus consent to personal jurisdiction; the defendant carries the defenses it had in state court with it to federal court. Plus, the District Court need not find Danziger a new playing field. When the parties suggest transferring a case with a jurisdictional defect, a district court should ordinarily balance the equities of doing so before deciding to dismiss the case with prejudice.
But at oral argument, Danziger conceded that it does not need the District Court to transfer its case; it could timely refile its claims in another forum. So we need not remand to let the District Court consider transferring this case, but will instead affirm. Also today, the court issued an amended panel opinion in Thomas v. Deputy Superintendent , a split-panel prisoner-rights appeal involving so-called dry-celling.
The new opinion is here ; my summary of the prior opinion is here. As best I can tell, the changes are not substantive and the outcome remains the same. Tyson —criminal—affirmance—Restrepo. Thus it ruled that the district court did not err in applying Rule of the federal evidentiary rules to bar the defendant from presenting a mistake-of-age defense.
The court split with the Ninth Circuit on one of the points, whether mistake of age is an affirmative defense to producing child pornography. Laurel Gardens, LLC v. McKenna —civil—partial reversal—Cowen. The appeal arose from a civil RICO suit involving landscaping and snow-removal businesses.
The court joined the majority in a circuit split on the question of which statutory personal-jurisdiction provision applied in civil RICO suits brought in a district with jurisdiction over at least one defendant. On Friday, the Third Circuit held that an order barring a service provider from disclosing to anyone that it had turned over subscriber data stored on the cloud to a grand jury did not violate the First Amendment.
The subpoenas and non-disclosure orders were pursuant to the Stored Communications Act. The Third Circuit Task Force on Eyewitness Identifications, formed in to study and address the problem of mistaken witness IDs leading to wrongful convictions, has issued its report. The full report is published in the Temple Law Review and is available online at this link. Task force members included Chief Judge Smith, Judges Shwartz and Restrepo; district judges from across the circuit; and a broad range of academics, defenders, and prosecutors and law enforcement—20 in all.
The report draws on a deep body of scientific research on different factors leading to mistaken identifications and procedures to reduce them, and to reduce wrongful convictions resulting from them. It presents concrete recommendations regarding law enforcement best practices on matters such as how to interview eyewitness and elicit identifications.
A substantial body of scientific research has identified factors that contribute to wrongful convictions, and the corresponding best practices have robust, nationwide support. The Task Force is proud to contribute to this vital endeavor. The task force report is engaging, thoughtful, and important, and I hope it gets the serious attention it deserves. Bell —criminal sentencing—partial reversal—Greenaway, Jr. The district court imposed the enhancement for physical restraint, ultimately sentencing the man to over seven years in prison.
Today, the Third Circuit reversed, holding that applying the physical-restraint enhancement on these facts was error. The court 1 held that its review standard was de novo, 2 set out five factors courts deciding whether to apply the enhancement must balance, and 3 held that, balancing those five factors, imposing the enhancement was error.
The Third Circuit announced that, effective January 1, its new docket entries will be consecutively numbered. Until now, entries on the docket were dated but not numbered, unlike docket entries in district courts. Adding numbers makes it a bit easier and more foolproof to cite, refer to, and store Third Circuit case documents. After issuing two opinions on Christmas Eve, which I confess to writing up a bit quickly amidst pre-holiday scrambling, the Third Circuit issued four more opinions the week between Christmas and New Years.
One of them, Orie , was issued on panel rehearing from an opinion highlighted here. Monongahela Valley Hospital v. Orie v. District Attorney —habeas corpus—affirmance—Jordan [December 30].
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Law takes your privacy seriously. Expert Analysis. Securities and Exchange Commission's administrative law judges ALJs could spell trouble for the commission and threatens to undo scores of prior SEC adjudications. On Feb. Circuit granted a petition for an en banc rehearing of its recent decision in Raymond J. Lucia Cos. SEC, F. In Lucia, a three-member panel of the court concluded that the administrative law judges of the SEC were employees of the SEC, and not "inferior officers of the Stay ahead of the curve In the legal profession, information is the key to success.
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