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

March 2010 Archives

Patel v. Attorney Gen. of the US, No. 09-1066, involved a petition for review of the BIA's decision upholding the denial of petitioner's motion to terminate removal proceedings.  The Third Circuit denied the petition on the ground that the confidentiality provisions of section 245A(c)(5) of the Immigration and Nationality Act did not apply to an application for employment authorization submitted by the child of a Legal Immigration Family Equity Act adjustment-of-status applicant.

As the court wrote: "Neema Patel, a citizen of India, petitions for review of the BIA decision upholding the denial of her motion to terminate removal proceedings. Her petition presents the
question of whether the confidentiality provisions of section 245A(c)(5) of the Immigration and Nationality Act ("INA") apply to an application for employment authorization submitted
by the child of a Legal Immigration Family Equity ("LIFE") Act adjustment-of-status applicant. For the reasons that follow, we agree with the BIA that they do not, and we will deny the
petition for review."

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Hearsay Evidence Allowed at Extradition Hearings

Harshbarger v. Regan, No. 09-2243, involved a district court's denial of defendant's petition for a writ of habeas corpus in Canada's extradition proceedings for the death of her husband in the Canadian wilderness. 

As stated in the decision: "Evidence that might be excluded at a trial, including hearsay evidence, is generally admissible at extradition hearings.  This is so because 'the role of the magistrate judge in an extradition proceeding is...to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction."

Thus, the court rejected defendant's argument that hearsay evidence was insufficient to support extradition as the federal statute that governs extradition proceedings explicitly allows for the use of hearsay at an extradition hearing, as well as numerous federal cases. 

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In Reger v. Nemours Found. Inc., No. 08-2875, the Third Circuit faced a challenge to the district court's approval of Clerk's award of defendant's costs following an entry of summary judgment against the plaintiffs in their medical malpractice suits for the death of their children.

As stated in the decision: "In Smith, we held that if the losing party can afford to pay, the financial disparity in the parties' financial resources seems to us to be irrelevant for purposes of Rule 54(d)."

Thus, in affirming the order, the court rejected the plaintiffs' claims that the district court should decline the award based on the enormous disparity of financial resources between the parties and the award would have a chilling effect on other plaintiffs who may have valid claims against the defendant and are considering litigation. 

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In Revell v. Erickson, No. 09-2029, the Third Circuit faced a challenge to the district court's dismissal of plaintiff's 42 U.S.C. section 1983 action against the Port Authority of New York and New Jersey and a Port Authority Police officer for arresting him under New Jersey's gun laws and seizing his firearm and ammunition in violation of his rights under section 826A of FOPA.

As stated in the decision: "It is clear from the statute that a person transporting a firearm across state lines must ensure that the firearm and any ammunition being transported is not readily accessible or...directly accessible from the passenger compartment of the transporting vehicle...Looking solely at the allegations of Revell's original complaint, it is also clear that what happened here does not fall within section 926A's scope because his firearm and ammunition were readily accessible to him during his overnight stay in New Jersey. 

Thus, in affirming the district court's judgment in favor of the defendants, the court held that the district court was correct in dismissing his section 926A claim and the associated Fourth Amendment claim.  Furthermore, the grant of summary judgment on the due process claim was proper as plaintiff failed to take advantage of state procedures available to him for the return of his property.

In In Re: Philadelphia Newspapers, LLC., No. 09-4266, the court addressed the issue of whether Bankruptcy Code section 1129(b)(2)(A) requires that any debtor who proposes, as part of its reorganization plan, a sale of assets free of liens must allow creditors whose loans are secured by those assets to bid their credit at the auction in Chapter 11 proceedings.

The court upheld the district court's approval of the proposed bid procedures in concluding that section 1129(b)(2)(A)(iii) unambiguously permits a debtor to proceed with any plan that provides secure lenders with the "indubitable equivalent" of their secured interest in the assets and contains no statutory right to credit bidding. 

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In US v. Howard, No. 08-4748, the Third Circuit faced a challenge to the district court's sentence of a defendant as a career offender under U.S.S.G. section 4B1.1.  The defendant argued that the district court erred in relying on uncertified documents in concluding that his two previous drug convictions were felonies.  However, in upholding the decision, the court held that for sentencing purposes, the district court was correct to refer to uncertified documents to establish prior convictions.

In US v. Lianidis, No. 09-1165, the court dealt with defendant's challenge to the district court's sentence in imposing a 16-level increase, for a conviction including illegal bribery of a federal employee, based on its conclusion that the benefit received was between $1 and $2.5 million.  In vacating the sentence, the court held that the proper calculation for "benefit received" under U.S.S.G. section 2C1.1(b)(2) is the net value, minus direct costs, accruing to the entity on whose behalf the defendant paid the bribe.  Here, the district court erred in concluding the "benefit received" was based on defendant and her husband's salaries.

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Preliminary Injunction Against DA's "Sexting" Ultimatum Upheld

In Miller v. Mitchell, No. 09-2144, the Third Circuit faced a challenge to the district court's grant of plaintiffs' motion for a preliminary injunction in their suit against the district attorney for his decision to require teens, suspected of "sexting" to attend an education program, or be subjected to felony child pornography charges.

In affirming the grant of preliminary injunction on plaintiffs' constitutional retaliation claim, the court held that the plaintiffs have shown a likelihood of success on their claims that any prosecution would not be based on probable cause that they committed a crime, but rather, in retaliation for exercising their constitutional rights not to attend the education program. 

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In Holmes v. Kimco Realty Corp., No. 08-4834, the court dealt with the issue of a tenant's common law duty to maintain a multi-tenant parking lot, in a plaintiff's suit against a retailer for injuries when he fell on the snow in the parking lot. 

As stated in the decision: "The signs at the entrance to the lot identify multiple tenants, not just Lowe's.  While a Lowe's customer will undoubtedly park as close as possible to that store, he could park anywhere in the lot."  Also stated in the decision: "Imposition of a duty on tenants in a multi-tenant facility also would lead to uncertainty with respect to the areas of the parking lot for which each tenant is responsible."

Thus, although the issue has not yet been addressed by the New Jersey state high court, the court predicted that the state would not impose a duty on an individual tenant for snow removal from the common areas of a multi-tenant parking lot when the landlord retains and exercises that responsibility. 

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Combination of Medical Expert and Lay Testimony Okay for FMLA

In Schaar v. Lehigh Valley Health Servs., Inc., No. 09-1635, the Third Circuit addressed a question of first impression of whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days as required by FMLA regulations.

In vacating the district court's denial of plaintiff's suit against her former employer for violation of the FMLA, the court held that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.

Here, the doctor wrote that the plaintiff was incapacitated for two days because of her illness due to her urinary tract infection.  The doctor's medical opinion combined with plaintiff's lay testimony that she was incapacitated for two additional days, is sufficient to show that a material issue of fact exists as to whether the plaintiff suffered from a serious health condition.

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Ruling on Motion to Reopen Asylum Application

In Sadhvani v. Holder, No. 08-1684, the court faced a challenge, by a native and citizen of Togo, to the BIA's denial of his motion to reopen his asylum application in light of William v. Gonzalez, 499 F.3d 329 (4th Cir. 2007). 

As stated in the decision: "In William I, we held that the regulation promulgated by the agency, 8 C.F.R. section 1003.2(d), was invalid because it directly contradicted the statutory language in the INA which permitted one motion to reopen with no restriction on the location from which it was filed."

In affirming the BIA's decision, the court concluded that, although the regulation no longer works to remove BIA's jurisdiction, it did not abuse its discretion in denying relief based on the statutory requirement that an alien must be present in the US to be eligible for asylum.  Here, petitioner was removed by the Department of Homeland Security under a valid removal order, and as such, he can no longer pursue an application for asylum.

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In US v. Stearn, No. 08-3230, the court faced a challenge to the district court's order granting in part motions to suppress evidence following a grand jury's indictment of defendants for federal narcotic and weapons offenses.

In reversing the district court's judgment in its entirety, the court held that the magistrate judge had a substantial basis for determining that probable cause existed to search a home that was apparently the residence of a confirmed drug dealer. 

Although closer probable cause questions were presented by searches of other residences, each search was upheld under the Leon good faith exception. 

Finally, suppression of a defendant's saliva sample as "fruits of the poisonous tree" is reversed as he failed to prove a primary invasion of his own Fourth Amendment rights.

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Ruling in Putative Class Action Against E-File Companies

In Byers v. Intuit, Inc., No. 09-1997, the Third Circuit faced a challenge to the district court's dismissal of plaintiffs' suit against Free File Alliance (FFA) and its members claiming violations of the Independent Offices Appropriations Act (IOAA) for charging fees in exchange for providing e-filing services, as well as a claim under section 1 of the Sherman Antitrust Act.

As stated in the decision: "From the plain language of the statute, it is evident that the IOAA applies only to entities that are considered to be an "agency" under the statute.  In Title 31 of the US Code, the term "agency" is defined as  "a department, agency, or instrumentality of the United States Government." 

As FFA members, who are wholly private entities, clearly do not fit within the definition of "agency,"  the court held that the district court correctly decided that the IOAA does not apply.  Furthermore, the court rejected the plaintiffs' claim that IOAA's reach extends to FAA members because it provided services on behalf of the IRS pursuant to an agreement, as none of the exceptions under Thomas were applicable.

Finally, the court upheld the district court's dismissal of the Sherman Act claim in concluding that the defendants were entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

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Constitutional Claim of a Variance Rejected in Habeas Appeal

In Real v. Shannon, No. 07-4532, the Third Circuit faced a challenge to the district court's denial of defendant's petition for a writ of habeas corpus. 

As stated in the decision: "The information stated that B.B.'s rape occurred "on or about December 1996." "Where 'on or about' language is used, the government is not required to prove the exact dates, if a date reasonably near is established." U.S. v. Nersesian, 824 F.2d 1294 (2d Cir. 1987)

In affirming the district court's denial of the petition, the court held that the variance between the victim's testimony and the information did not violate defendant's due process rights.  The court stated that in charging that the 1996 rape took place "on or about December," the Commonwealth was necessarily charging that the rape could have occurred in November or January as well.  In addition, the court rejected defendant's ineffective assistance claim as well as his defective jury instruction claim.

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Forfeiture of Over 600 Firearms and Ammunitions Affirmed

In US v. Cheeseman, No. 09-1756, the Third Circuit faced a challenge to a conviction for violating 18 U.S.C. section 922(g)(3), criminalizing possession of firearms and ammunition by an unlawful user or an addict of a controlled substance.

The defendant argued that the district court's judgment ordering asset forfeiture of over 600 firearms and ammunition was improper because the property subject to the forfeiture was neither involved in, or used in a knowing violation of section 922(g)(3).  The defendant also argued that the order violated the Excessive Fines Clause of the Eighth Amendment.

In rejecting each of defendant's arguments, the court held as follows: defendant's possession of firearms and ammunition was sufficient for the district court to conclude that the property was involved in a section 922(g)(3) offense;  the forfeiture order was not grossly disproportionate to defendant's offense because he was abusing illegal drugs while illegally possessing firearms and the value of the firearms was at most two times the maximum penalty imposed by the statute.

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Grant of Suppression Motion Overturned

In a prosecution of defendant for child pornography the Third Circuit in US v. Tracey, No. 08-3290, faced a government's challenge to the district court's grant of motion to suppress evidence seized and statement made during a search conducted pursuant to a warrant.

First, the court rejected the government's argument that the warrant's lack of particularity is cured by the affidavit as the warrant did not explicitly incorporate the affidavit of probable cause into the description of things to be searched and seized. 

The court also rejected the government's claim as waived, that it had good cause for its failure to argue before the district court that the warrant's lack of particularity could be cured when the affidavit was attached to the warrant and the actual search was limited to the terms of the narrower affidavit. 

However, the court ultimately reversed the decision in holding that the officers had good reason to believe in the warrant's validity, and therefore, the exclusionary rule is not justified. 

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