Upon Further Review

Howard Bashman.

The U.S. Supreme Court's 2018-2019 term will be remembered as Brett M. Kavanaugh's first one as a justice, and he wrote the majority opinion in the only case that the Supreme Court affirmed on direct review from the U.S. Court of Appeals for the Third Circuit this past term. In the other two cases that reached the Supreme Court directly from the Third Circuit last term, the high court vacated the Third Circuit's judgments and remanded the cases. Yet in one of those two cases, the Supreme Court did so only after overturning its own precedent by the slimmest of margins, and the Third Circuit court had properly followed then-existing Supreme Court precedent in reaching the result that the Supreme Court ultimately overturned. Thus, one can endlessly debate whether the Third Circuit's record on direct review last term should more properly be regarded as 1-2 or 2-1.

In another six cases, the Supreme Court expressly noted that it was resolving conflicts that involved the Third Circuit. There, the Supreme Court agreed with the Third Circuit three times and disagreed with it three times. As a result, the Third Circuit's overall approval rate this past term was either 44% or 56%, depending on how you characterize the case on direct review in which the Supreme Court overruled itself. Either way, the Third Circuit's success rate at the Supreme Court during the 2018-2019 term was better than in many recent years.

The Third Circuit's lone affirmance this past term occurred on March 19 when the Supreme Court decided Air & Liquid Systems v. DeVries. The plaintiffs were the families of two Navy veterans who later died from cancer resulting from asbestos exposure that occurred during their military service. The defendants were the manufacturers of equipment that, as manufactured, did not contain asbestos. The plaintiffs alleged that the manufacturers knew that the equipment required asbestos insulation or asbestos parts in order to function as intended. At issue was whether a manufacturer has a duty to warn if the manufacturer's product requires incorporation of asbestos, which the manufacturer knows is likely to make the integrated product dangerous for its intended uses.

The Third Circuit answered that question in the affirmative, in an opinion written by then-circuit court Judge Thomas I. Vanaskie, in which circuit judges Patty Shwartz and L. Felipe Restrepo joined. The Supreme Court affirmed by a 6-3 vote in an opinion written by Kavanaugh and joined in by Chief Justice John G. Roberts Jr. and the court's four more liberal justices.

The result was not quite as favorable for the Third Circuit in Knick v. Township of Scott, decided June 21, after two separate Supreme Court oral arguments and the court's decision to overrule its own previously binding precedent. In a case called Williamson County that the Supreme Court decided in 1985, the court ruled that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights, and thus cannot bring a takings claim in federal court, until a state court has denied his claim for just compensation under state law.

A unanimous Third Circuit panel relied on Williamson County in affirming a district court's decision holding that Knick's Fifth Amendment taking claim had to be dismissed as unripe. Chief Judge D. Brooks Smith wrote the Third Circuit's opinion, in which Judge Theodore A. McKee and Senior Judge Marjorie O. Rendell joined.

The Supreme Court granted review in Knick to determine whether its ruling in Williamson County should be overruled. When Knick was initially argued in the Supreme Court on October 3, 2018, Kavanaugh had not yet been confirmed as a Justice. Presumably the court was evenly divided 4-4 after that first argument. The case was then scheduled for reargument on Jan. 16, before all nine Justices. Roberts wrote the opinion overruling Williamson County and ruling in Knick's favor on behalf of the court's five more conservative justices. Elena Kagan issued a dissent on behalf of the court's four more liberal Justices.

The Third Circuit's other setback last term occurred on May 20 when the court decided Merck Sharp & Dohme v. Albrecht. The plaintiffs who alleged they suffered injuries as the result of ingesting a prescription drug whose label had inadequately warned of the risk of those injuries brought suit for negligent failure to warn against the manufacturer of that drug. In an earlier ruling, the Supreme Court had held that “clear evidence” that the Food and Drug Administration would not have approved a change to the drug's label preempts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the relevant risks associated with using the drug. The main question presented in Albrecht was whether the “clear evidence” inquiry was ordinarily one that a judge would decide as a question of law or that a jury would decide as a question of fact.

A unanimous three-judge Third Circuit panel ruled that whether the FDA would have rejected a proposed drug label change is ordinarily a question of fact for jury. Senior Judge Julio M. Fuentes wrote the opinion, in which Judges Michael A. Chagares and Restrepo joined.

All nine justices on the Supreme Court disagreed, holding that the “clear evidence” inquiry was ordinarily one for the judge to decide as a matter of law. Justice Stephen G. Breyer wrote the opinion of the court.

The remaining six cases discussed below reached the Supreme Court from other courts, but in each of these cases the Supreme Court expressly noted that it was resolving a conflict that involved the Third Circuit.

In McDonough v. Smith, the Supreme Court ruled, in an opinion by Justice Sonia Sotomayor, that a federal claim for deprivation of civil rights arising from a state court prosecution based on fabricated evidence accrues when the state criminal proceedings are terminated in the defendant's favor. In so ruling, the Supreme Court agreed with the Third Circuit's unpublished, per curiam decision from 2018 in Floyd v. Attorney General of Pennsylvania, circuit Judges Thomas L. Ambro and Restrepo and Senior Circuit Judge Richard L. Nygaard joined in that per curiam decision.

In Nutraceutical v. Lambert, Sotomayor ruled on behalf of a unanimous court that the 14-day period for requesting permission of a federal appellate court to appeal from a federal district court's decision to certify or decertify a class action is not subject to equitable tolling when the opposing party complains that the request for appellate review was untimely. The Supreme Court thereby sided with the Third Circuit's 2008 decision in Gutierrez v. Johnson & Johnson. Senior circuit Judge Franklin S. Van Antwerpen wrote that opinion, in which Fuentes and Chagares joined.

The third and final case in which the Supreme Court agreed with the Third Circuit last term was Jam v. International Finance. At issue was the scope of immunity that international organizations receive from federal suits under a statute known as the International Organizations Immunities Act. Roberts held that the answer was only the same narrow immunity that foreign governments now enjoy under the Foreign Sovereign Immunities Act.

In so ruling, the Supreme Court agreed with the Third Circuit's 2010 ruling in Oss Nokalva v. European Space Agency. Circuit Judge Dolores K. Sloviter wrote that decision, in which then-Circuit Judge Maryanne Trump Barry and Judge Thomas M. Hardiman joined.

Turning now to the bad news, in Garza v. Idaho the Supreme Court ruled, in an opinion by Sotomayor, that a presumption of prejudice will apply when a criminal defendant requests counsel file an appeal and counsel fails to do so, even if the defendant had agreed to waive all appeals. In so ruling, the Supreme Court disagreed with the Third Circuit's ruling in United States v. Mabry (2008). Rendell wrote that opinion, in which McKee and a senior circuit judge visiting from the Ninth Circuit joined.

In Smith v. Berryhill, Sotomayor on behalf of a unanimous court held that the decision of the Social Security Appeals Council that an appeal is untimely constitutes a “final decision” subject to judicial review in federal court. In so ruling, the Supreme Court disagreed with the Third Circuit's decision in Bacon v. Sullivan (1992). Circuit Judge Robert E. Cowen wrote the opinion, in which Circuit Judge William D. Hutchinson and Senior Circuit Judge Leonard I. Garth joined.

Lastly, in Obduskey v. McCarthy & Holthus, Breyer on behalf of a unanimous court disagreed with the Third Circuit's decision in Kaymark v. Bank of America (2015), concerning whether a business engaged in only nonjudicial foreclosure proceedings is a “debt collector” under the Fair Debt Collection Practices Act. The Third Circuit had answered “yes,” while the Supreme Court held “no.” Circuit Judge D. Michael Fisher wrote the Third Circuit's decision, in which Fuentes and Circuit Judge Cheryl Ann Krause joined.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via at [email protected]. You can access his appellate web log at http://howappealing.law.com/ and via Twitter @howappealing.