U.S. Third Circuit: April 2010 Archives
U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog

April 2010 Archives

In US v. King, No. 09-1861, the Third Circuit faced a defendant's challenge to his conviction for interstate transportation to engage in sex with a minor claiming, inter alia, that his Fourth Amendment rights were violated when the district court erred in denying his motion to suppress that when an owner of a computer consents to its seizure, that consent does not include the computer's hard drive installed by another who claims ownership of it and objects to its seizure.

In affirming the district court's denial of defendant's motion to suppress, the court held that the seizure of the child-victim's mother's computer did not violate defendant's Fourth Amendment as he placed his hard drive inside the computer, which they both shared without any password protections, and as such, he assumed the risk that the mother would consent to its seizure.  The court affirmed remainder of district court's findings, including its finding that defendant was not in custody for purposes of Miranda when he made certain statements to the police. 

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Denial of Petition for Habeas Relief Claiming Ineffectiveness

In Rainey v. Varner, No. 08-1714, the Third Circuit dealt with a defendant's petition for habeas relief, claiming that his trial and appellate counsel were ineffective for failing to challenge his first degree murder conviction on the ground that the evidence was insufficient to prove his shared intent to kill a jewelry store owner during the robbery. 

As stated in the decision: "Assuming the evidence presented at trial was insufficient to establish a shared intent to kill, it was nonetheless sufficient to establish the elements of second degree felony murder...had Rainey been retried and convicted of second degree murder, he would have received the same sentence."

Thus, in affirming district court's denial of defendant's petition, the court held that there is no prejudice under Strickland v. Washington, as evidence at trial was sufficient to prove second degree murder and a conviction for second degree murder in Pennsylvania results in a mandatory life sentence, the same sentence which defendant is now serving. 

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Montanez v. Thompson, No. 05-4430, concerned a plaintiff's 42 U.S.C. section 1983 suit against a records specialist with the Pennsylvania Department of Corrections, claiming that he was incarcerated beyond the expiration of his maximum term of imprisonment as a result of defendant's deliberate indifference in responding to his inquiries and challenges.  In reversing the district court's order denying defendant's motion for summary judgment, the court held that defendant is entitled to qualified immunity with respect to plaintiff's Eighth Amendment claims.

In Bradley v. US Attorney General, No. 08-4184, the court dealt with a petition for review, by a citizen and national of New Zealand, of a final removal order of the Department of Homeland Security, Immigration and Customs Enforcement.  In denying the petition, the court held that the evidence is more than sufficient to prove that he signed a VWP waiver and that he cannot invalidate his removal order as he cannot demonstrate that he was "substantially prejudiced" by his allegedly unknowing waiver.  Furthermore, petitioner is not entitled to pursue a marriage-based adjustment of status under 8 U.S.C. section 1255(c)(4) because, although he was once statutorily eligible, he may not, after the expiration of his 90-day stay, adjust his status as a defense to removal.

D.S. v. Bayonne Bd. of Educ., No. 08-4730, concerned a challenge to the district court's judgment terminating the obligation of defendant-school board to pay the tuition of plaintiffs' son at a private school for learning disabled children and denying their motion for attorneys' fees, costs, and interest.  In reversing the decision of the district court, the court reinstated the ALJ's orders as the ALJ properly determined that defendant had failed to provide plaintiffs' son with a free and appropriate public education during the 2006-2007 school year in violation of the Individuals with Disabilities Act (IDEA).  ALJ's finding that a private school would be an appropriate placement so that the son be placed in that school at defendant's expense is also reinstated.

US v. Robinson, No. 09-3505, concerned a challenge to the district court's calculation of defendant's sentencing guideline range for conspiring to steal and convert United States Treasury checks in violation of 18 U.S.C. section 641 and 471.  In affirming the sentence, the court held that the district court did not clearly err in finding by a preponderance of the evidence that defendant and one of the co-defendants were engaged in joint criminal activity and the court rejected defendant's claim that his sentence is unreasonable based on the mere allegation of a difference between the sentencing calculations in defendant's case and his co-defendant's case. 

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Immigration Matter and Antitrust Case Against a Tooth Manufacturer

Johnson v. U.S. Attorney General, 07-2820, involved a petition for review, filed by a citizen of Guyana, of BIA's denial of his application for cancellation of removal under the Special Rule for Battered Spouses, 8 U.S.C. section 1229b(b)(2).  However, because the extreme cruelty determination in section 1229b(b)(2) is discretionary and not subject to judicial review, the petition is dismissed for lack of jurisdiction. 

Howard Hess Dental Lab., Inc. v. Dentsply Int'l, Inc., No. 08-1693, involved two related antitrust cases brought by two dental laboratories against a manufacturer of artificial tooth and several of its dealers.  In affirming the district court's decision, the court held that with respect to the Hess plaintiffs' motion for summary judgment of their monopolization claim against the manufacturer, the district court properly dismissed the motion.  Furthermore, the district court did not abuse its discretion in denying the Hess plaintiffs' motion for reconsideration and it did not err in dismissing the complaint in Hess. 

With respect to the Jersey Dental plaintiffs' conspiracy claims, the court affirmed the district court's determination that the plaintiffs failed to adequately allege the agreement element of their Section 1 and 2 claims of the Sherman Act, and that they failed to adequately allege specific intent.  Lastly, the court held that the district court did not err in its application of Illinois Brick as to Jersey Dental plaintiffs' request for overcharge damages. 

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In Reinhold v. Rozum, No. 08-3371, the Third Circuit faced a challenge to the district court's denial of defendant's request for habeas relief, filed more than ten years after his conviction for kidnapping and related crimes became final, claiming that the Supreme Court's decision in Cunningham v. California applies retroactively to his conviction.

Under the Supreme Court's three-part test for determining the retroactivity of a rule under Teague v. Lane, first the court must determine when defendant's conviction became final.  Second, the court must ascertain the legal landscape as it then existed by deciding whether the rule is actually new.  Lastly, if the rule is new, the court must consider whether it falls within one of two exceptions to nonretroactivity. 

Here, defendant filed his habeas petition within one year of the Cunningham decision, which announced a rule that was actually new for defendant's purposes.  However, under the third part of the test for retroactivity, Cunningham did not announce a watershed rule and is therefore not retroactively applicable to defendant's conviction. 

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Zegrean v. U.S. Attorney General, No. 08-3714, involved a challenge to the BIA's affirmance of the Department of Homeland Security's denial of petitioner's application for naturalization on the ground that a removal proceeding was pending against petitioner.

In addressing petitioner's argument that the tension between 8 C.F.R. section 1239.2(f) and 8 U.S.C. section 1429 must be reconciled, the court explained that the BIA's conclusion that it cannot consider eligibility is consistent with 8 U.S.C. section 1421 which states that the sole authority to naturalize persons as citizens is conferred upon the Attorney General.  Furthermore, the plain language of the section prohibits the Attorney General from even considering an application for naturalization if removal proceeding is pending against the applicant.

Thus, the decision of the BIA is affirmed as petitioner has not established prima facie eligibility for naturalization under section 1239.2(f) and cannot do so as long as removal proceedings are pending against him.

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Decisions In ADA, APA and Environmental Matters

Sulima v. Tobyhanna Army Depot, No. 08-4684 involved a challenge to the district court's grant of summary judgment in plaintiff's suit against several federal government defendants under the ADA and the RA, arising from his voluntary layoff from employment with the Army Depot.  However, because plaintiff did not demonstrate that the medications that were causing his problems were medically necessary, their side effects cannot be considered as impairments within the meaning of the ADA.  Furthermore, because plaintiff's employers did not regard him as disabled within the meaning of the ADA and plaintiff could not have had a good faith belief that he was disabled within the meaning of the ADA since he could not have had a good faith belief that his side effects were anything but temporary, district court's judgment is affirmed.

In Agere Sys., Inc. v. Advanced Envt'l Tech. Corp., No. 09-1814, the court faced a challenge to the district court's judgment against one defendant in plaintiffs' suit against twenty-three defendants for cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and the Pennsylvania Hazardous Sites Cleanup Act to recover costs that the plaintiffs had paid to the EPA, arising from the disposal of millions of gallons of toxic waste over six years at a particular site. 

However, because the district court must make a clear and unequivocal finding as to when the EPA completed its removal action, the judgment is vacated and remanded as such a finding will allow the district court to determine whether the EPA's December 6, 2001 filing of the suit to enforce the OU-2 Consent Decree was timely and thus whether there is a time-bar to plaintiffs' recovering the amount they paid to reimburse the EPA for past costs.  On remand, TI and Argere should be permitted to go forward with their section 107(a) cost recovery claims to recoup costs paid as part of the shared expense of cleaning up the sit and because Cytec, Ford, SPS, and TI are shielded from contribution counterclaims under section 113(f)(2) and to the consent decrees, the district court should proceed solely under section 113(f) as to those claims. 

Cyberworld Enter. Tech., Inc. v. Napolitano, No. 09-2515, involved a plaintiff's action against the Secretary of Labor and other officials under the APA challenging sanctions against it for failing to comply with the requirement that, as a temporary staffing company that obtains H-1B visas for its employees, it inquire of the secondary employer whether the hiring of an H-1B employee will cause a United States worker to be laid off or displaced.  In affirming the grant of summary judgment in favor of the defendants, the court held that under the analysis prescribed by the Supreme Court in Brock v. Pierce County, the Secretary had jurisdiction to act after the deadline passed.  Plaintiff's remaining claims are rejected including its claim that the Secretary did not have the authority for the debarment sanction. 

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Colwell v. Rite Aid Corp., No. 08-4675

Colwell v. Rite Aid Corp., No. 08-4675, concerned an Americans with Disabilities Act (ADA) action claiming constructive discharge based on plaintiff's partial blindness.  The court of appeals affirmed summary judgment for defendant in part, holding that no reasonable juror could find that the actions to which plaintiff referred made her workplace so unbearable that a reasonable person would have felt compelled to resign.  However, the court reversed in part where the ADA contemplated that employers may need to make reasonable shift changes in order to accommodate a disabled employee's disability-related difficulties in getting to work.

As the court wrote:  "Under the circumstances presented in this case, a reasonable jury could thus conclude that either party violated the duty to engage with good faith in the interactive process. Because genuine issues of material fact exist on that issue, we cannot affirm the grant of summary judgment on the basis that Rite Aid fully complied with the requirements of the ADA. A fact-finder must settle that dispute."

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US v. Schiff, No. 08-1903

US v. Schiff, No. 08-1903, involved a criminal prosecution of corporate executives at the pharmaceutical giant Bristol-Myers Squibb for securities fraud under 15 U.S.C. section 78j(b) and Securities and Exchange Commission Rule 10b-5.  The court of appeals affirmed the district court's pretrial order (1) dismissing the government's theories of omission liability under Rule 10b-5 that attempted to hold defendant accountable for omissions in quarterly SEC 10-Q filings based on alleged misstatements in a company's quarterly conference calls; and 2) excluding the government's expert, following a Daubert hearing, who would have testified to the company's stock price drop as evidence of Rule 10b-5's materiality element.

The court held that 1) defendant had no duty to disclose in SEC filings deriving from a general fiduciary obligation of "high corporate executives" to the company's shareholders; 2) there were no actionable omissions in the SEC filings on which to base the government's theory; and 3) the district court's thoroughly explained ruling that allowed the government to present its fact witnesses at trial, and then petition the court for introduction of an expert's stock price drop testimony, was a pragmatic solution and not an abuse of discretion.

As the court wrote:  "Frederick Schiff and Richard Lane were high-ranking corporate executives at the pharmaceutical giant Bristol-Myers Squibb ("Bristol"). They were criminally indicted for allegedly orchestrating a massive securities fraud scheme related to Bristol's wholesale pharmaceutical distribution channels in the early 2000s, in violation of, inter alia, 15 U.S.C. § 78j(b) and Securities and Exchange Commission ("SEC") Rule 10b-5. The Government filed this interlocutory appeal in response to the District Court's March 19, 2008 opinion that addressed several contested theories of liability as well as expert witness issues
under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)."

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Decision in Criminal Case Involving Fourth Amendment Claim

US v. Sed, No. 09-1489, involved a challenge to the district court's denial of defendant's motion to suppress in a conviction for conspiracy to distribute and possession with the intent to distribute drugs and other related crimes, claiming that the Pennsylvania police violated his Fourth Amendment rights when they arrested him in Ohio and that the district court erred in failing to reduce his sentence because of "sentencing entrapment" or "sentencing factor manipulation."

In rejecting both claims, the court held that the seizure of defendant was not unreasonable and the district court did not err in denying his motion to suppress as the stop of defendant's car before it entered Pennsylvania from Ohio was a de minimis mistake which does not render the seizure unreasonable.  Furthermore, the district court did not err when it failed to grant a downward departure or an additional downward variance as the record amply supports the court's conclusion that defendant committed perjury and the Pennsylvania did not act improperly in their sting operation. 

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Williams v. Astrue, No. 09-1471, involved a claimant's request for attorneys' fees in connection with her application for disability benefits following a district court's conclusion that the ALJ's findings with respect to the claimant's ability to perform her past relevant work were not supported by substantial evidence.  The Equal Access to Justice Act, provides that a prevailing party in a litigation against the government shall receive fees and other expenses incurred unless the court finds that the government's position was substantially justified or than special circumstances make an award unjust.

Thus, in affirming the district court's denial of claimant's request for attorneys' fees, the court held that under the circumstances, the ALJ's one inconsequential error in its decision and where there were other evidence in which to reach the same conclusion, did not render district court's decision improper in concluding that the government's position was substantially justified.

Azur v. Chase Bank, USA, No. 09-1553, involved a plaintiff's suit against Chase Bank alleging violations of the Truth in Lending Act (TILA) and common law negligence after her personal assistant misappropriated over $1 million from plaintiff through fraudulent use of her Chase credit card.  In affirming the district court's grant of summary judgment in favor of the defendant, the court held that section 1643 of the TILA does not entitle the cardholder the right to reimbursement after making the payments.  Furthermore, because the plaintiff vested her personal assistant with the apparent authority to use her credit card, her section 1643 and 1666 claims cannot stand.  Lastly, plaintiff's common law negligence claim is barred by the Pennsylvania's economic loss doctrine. 

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