Howard Bashman.

Upon Further Review

The impact of the coronavirus pandemic on the U.S. Supreme Court's 2019-2020 term was noticeable, as the court's output of published opinions plunged to a total of 53 from the more than 70 that it had issued in the previous two terms. The decline in signed opinions this past term was a direct result of a decline in the number of argued cases that the court was able to hear.

The pandemic forced the court to cancel its final two in-person oral argument sessions of the term, representing 12 days of scheduled oral arguments, which the court replaced with six days of telephonic oral arguments broadcasted live to the public in early May 2020. Some of the cases that had originally been scheduled for argument and resolution this term were postponed until after the court returns from its summer recess in early October. Also, having so many cases argued later in the term than usual forced the court to remain in session for an additional week past its typical end-of-June resolution to issue opinions in the cases that remained to be decided from the May 2020 argument session.

During its just concluded term, the Supreme Court decided four cases on direct review from the U.S. Court of Appeals for the Third Circuit, affirming our local federal appellate court two times and reversing it two times. In another six cases, the Supreme Court expressly noted that it was resolving conflicts that involved the 3rd Circuit. In four of those six cases, the Supreme Court sided with the Third Circuit's approach, while in the remaining two cases the Supreme Court disagreed with the Third Circuit's approach. This produced an overall success rate for the Third Circuit at the Supreme Court during the 2019-2020 term of 60%, which is the highest approval rate that the Third Circuit has achieved at the Supreme Court since the 2010-2011 term.

With a total of 10 cases to review, this year's round-up of how the Third Circuit fared at the Supreme Court during the just-concluded term will consist of two parts. This month's column will summarize the four cases that reached the Supreme Court directly from the Third Circuit. Then, next month I will review the remaining six cases that reached the U.S. Supreme Court from other courts, but in which the Supreme Court expressly noted that it was resolving a conflict that involved the Third Circuit.

The just-concluded term got off to the best possible start for the Third Circuit when the Supreme Court's very first signed opinion of the term produced an affirmance for our local federal appellate court. The Third Circuit's second reversal of the term, by contrast, did not issue until the Supreme Court's second-to-last day of opinion issuance.

The most noteworthy of the four cases to reach the Supreme Court from the Third Circuit was Little Sisters of the Poor v. Pennsylvania. At issue was whether the Trump administration's regulations exempting those employers having sincere religious or moral objections from the Affordable Care Act's requirement that an employer's health insurance plan must provide free contraceptive access were lawful. By a 7-to-2 vote, the U.S. Supreme Court held that the regulations were lawful. Justice Clarence Thomas wrote the majority opinion. In so ruling, the Supreme Court reversed the Third Circuit's decision in Pennsylvania v. President of the United States (2019). Circuit Judge Patty Shwartz wrote the opinion, in which Circuit Judge Theodore A. McKee and Senior Circuit Judge Julio M. Fuentes joined.

The Third Circuit's other reversal this term came in the so-called Bridgegate appeal. At issue there was whether a scheme that did not seek to obtain money or property could be prosecuted as federal crimes of wire fraud or fraud on a federally funded program or entity. The Supreme Court unanimously voted to overturn the defendant's federal criminal convictions in an opinion by Justice Elena Kagan. In so ruling, the Supreme Court reversed the Third Circuit's decision in United States v. Baroni (2018). Senior Circuit Judge Anthony J. Scirica wrote that opinion, in which Circuit Judge Thomas L. Ambro and a senior judge sitting by designation from the Sixth Circuit joined.

Turning now to the two cases in which the Supreme Court affirmed the Third Circuit's judgments on direct review, in Rotkiske v. Klemm the court considered whether the time to sue for a violation of the Fair Debt Collection Practices Act begins when the violation occurs or only later, when the plaintiff discovered the violation. Thomas, writing for a nearly unanimous court, ruled that the discovery rule does not apply, and thus the time to sue commenced when the violation occurred. In so ruling, the Supreme Court affirmed the 3rd Circuit's unanimous en banc decision bearing the same name written by Circuit Judge Thomas M. Hardiman.

The Third Circuit's other affirmance this past term occurred in a case arising from an oil tanker's spill in the Delaware River. In CITGO Asphalt Refining v. Frescati Shipping, the Supreme Court ruled that the company that had chartered the oil tanker to deliver its heavy crude oil was required to reimburse the vessel's owner and the U.S. government for the costs they incurred in cleaning up the oil spill. Justice Sonia Sotomayor wrote the majority opinion, which affirmed the Third Circuit's decision in In re Frescati Shipping (2018). Chief Judge D. Brooks Smith wrote that decision, in which Hardiman and a federal district judge sitting by designation joined.

Although a 50% affirmance rate on direct review may not seem that high, there is much truth in the saying that the Supreme Court does not ordinarily grant review in cases merely to affirm. The Supreme Court's overall affirmance rate last term in all cases was a mere 33%. And only three federal appellate courts achieved affirmance rates last term that exceeded 50%, and one of the two federal appellate courts with a 100 percent affirmance rate (the Eighth Circuit) had only one case before the Supreme Court on direct review last term. The Third Circuit's 50% affirmance rate thus earned our local federal appellate court fourth place among all 13 federal appellate courts at the U.S. Supreme Court last term.

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