Tag Archives: Court: 3rd Circuit

Politico: The 2-1 decision Thursday from the U.S. Court of Appeals for the Third Circuit (posted here) found that the presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions or other adjournments during which the Senate might meet in pro forma sessions. The reasoning mirrors that in a ruling of the D.C. Circuit Court in January.

AP: The Senate has confirmed New Jersey judge Patty Shwartz to serve on the 3rd U.S. Circuit Court of Appeals.

How Appealing links to coverage of the case.

Religion Clause Blog: In Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, (3rd Cir., Feb. 7, 2013), Judge Rendell in her majority opinion concluded that the Mennonite owners of a wood specialties manufacturing company had failed …

Religion Clause Blog: In Torres v. Davis, (3d Cir., Dec. 4, 2012), the court rejected free speech, free exercise and equal protection challenges to the refusal by the Board of plaintiff’s requests made over a ten-year period to place items on the ballot.

LifeNews: On Thursday, in a letter to the Third Court of Appeals, Planned Parenthood admitted that they have been charging women for services that should be free under the Women’s Health Program (WHP), which serves low-income Texan women. Providers enrolled in the program are reimbursed by the federal government.

How Appealing reports and links to relevant documents.

Religion Clause Blog reports on the ruling in Fouche v. NJ Transit, (3d Cir., July 16, 2012).

Religion Clause Blog: In Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith, Inc., (3d Cir., June 28, 2012), the U.S. 3rd Circuit Court of Appeals held that plaintiff, a member of a dissident faction in a Church, lost standing to continue a lawsuit charging Church leaders with misappropriation of assets once plaintiff’s Church membership had been terminated by the Church’s religious leader.

Findlaw: A group of porn-industry folks brought a recent lawsuit before the Third Circuit Court of Appeals in Philadelphia. The lawsuit raised constitutional issues relating to criminal laws that imposed recordkeeping, labeling and inspection requirements on “producers of sexually explicit depictions.”

Reuters: A U.S. appeals court on Monday revived a lawsuit brought by members of the adult entertainment industry which challenges federal laws requiring pornography producers to report the ages of all performers.
| Free Speech Coalition v Attorney General, No. 10-4085 (3rd Cir. April 16, 2012) (Before SCIRICA, RENDELL, and SMITH, Circuit Judges. )

How appealing reports.

NJ.com: The move, which has effectively derailed the nomination of U.S. Magistrate Patty Shwartz to the Third Circuit, marks the first time a judicial appointee of President Obama has been held up by a senator from his own party.

A federal appeals court on Wednesday for the second time ruled that the Federal Communications Commission improperly fined CBS Corp. for airing singer Janet Jackson’s infamous Super Bowl “wardrobe malfunction” in 2004.

In a 72-page ruling issued Friday, the Third U.S. Circuit Court of Appeals reversed a lower court ruling that the board’s prayers, which often are explicitly Christian, are constitutional because the school board is more like a legislative body than a school.

The opinion, which affirms the lower court’s finding, is also a reminder — according to CQ HealthBeat — that decisions still haven’t been announced in two other pending suits.

Shannon P. Duffy writing at Law.com: “As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts — the 2nd and 3rd Circuits — have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn’t be wrong for thinking so.” | United States v. Grober, No 09-1318 (3rd Cir. Oct. 26, 2010) [dissent begins at pg. 32]

Law.com: “At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.”

Associated Press: “The high court on Monday refused to hear an appeal from Michael Stratechuk. He sued in 2004, saying the South Orange-Maplewood school district’s ban violated the First Amendment’s freedom of worship provision.”

Associated Press: “A federal appeals court ruled Thursday that Hazleton, Pa., may not enforce its crackdown on illegal immigrants, dealing another blow to 4-year-old regulations that inspired similar measures around the country, including Arizona.” | Lozano v. City of Hazleton, No. 07-3531 (3rd Cir. Sept. 9, 2010) [Google Viewer]

“A new ruling from the U.S. Court of Appeals for the 3rd Circuit has prompted the Alliance Defense Fund to send follow-up letters to five colleges and universities that it contacted in April about their problematic ‘speech codes.’”

ADF Attorney Joe Martins writing at Speak Up Movement / University: “Last week, the U.S. Court of Appeals for the Third Circuit issued a resounding decision in favor of free speech by invalidating several unconstitutional speech codes. In McCauley v. University of the Virgin Islands, the Court struck down campus policies banning expression that is ‘offensive,’ ‘unauthorized,’ or which causes ‘emotional distress.’”

The Volokh Conspiracy: “The case is McCauley v. University of the Virgin Islands, decided today. The court holds that the K-12 school cases — ‘Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech in public elementary and high schools’ — ‘cannot be taken as gospel in cases involving public universities.”

The Daily Times: “Attorneys representing an anonymous Jewish family who sued the Indian River School District over the school board’s practice of opening its meetings with an explicitly Christian prayer — and lost — have appealed to the U.S. 3rd Circuit Court of Appeals. … In addition to the 69-page brief on behalf of plaintiff ‘Jane Doe,’ two other groups filed “friend of the court” briefs in support of the family’s position that a sectarian prayer at a school board meeting is unconstitutional and fails to respect diversity.” | “Sectarian prayer at DE school board meetings violates church-state separation”

“In River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, (7th Cir en banc, July 2, 2010), the 7th Circuit in an en banc decision interpreted the equal terms provision of RLUIPA by creating a modified version of the test used by the 3rd Circuit. The 7th Circuit’s test treats a regulation as violating the Equal Terms provision ‘only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory criteria.’” | Via Religion Clause. | View opinion in Google Viewer

Americans United for Separation of Church and State: “A friend-of-the-court brief filed with the 3rd U.S. Circuit of Appeals yesterday says a federal district judge got it wrong when he ruled in favor of sectarian invocations before meetings of the Indian River School District’s board.”

Christian Science Monitor: “When an appeals court issues an opinion, that doesn’t mean the opinion takes immediate effect. The government appealed the Third Circuit’s decision to the US Supreme Court. To facilitate the appeal, the Third Circuit stayed its ruling, and postponed its suggestion than an injunction be issued against enforcement of the Solomon Amendment. Nonetheless, the day after the Third Circuit opinion, Kagan announced that the law school would return to its prior policy sharply limiting the access of military recruiters . . .  In her statement, Kagan said that the Third Circuit ruling had ‘enjoined the enforcement of the Solomon Amendment.’ That statement is true but misleading given that the case would almost certainly be appealed. If appealed, the force of the decision would likely be stayed pending the outcome of the appeal.”

“Michael Anthony Marcavage, founder of Repent America ministries, led a group of about 20 protesters holding signs depicting graphic images of aborted fetuses.”

Julie Hilden writes at Findlaw: “On June 3rd, an en banc panel of the U.S. Court of Appeals for the Third Circuit re-heard two First Amendment cases that involve speech by public-school students. In each case, the speech occurred off campus, but it still resulted in the school’s suspending the student involved. The original panel opinions in the two Pennsylvania-based cases — Snyder v. Blue Mountain School Dist., and Layshock v. Hermitage School Dist. — were both issued on February 4th of this year. The positions of the two sides, upon re-hearing, are quite clear. The ACLU, arguing on behalf of the students, contends that speech that occurs outside a public school is also outside the school’s jurisdiction: ‘While children are in school, they are under the custody and tutelage of the school. Once they leave the schoolhouse gate, you’ve got parents that come into play.’ In contrast, the school districts claim that ‘It’s not a matter of where you throw the grenade, it’s where the grenade lands.’ In other words, the districts argue that when students’ speech targets the school, it doesn’t matter whether the speech itself occurs on-campus or off-campus. In this column, I’ll contrast the facts and holdings of the two Third Circuit panel decisions that were issued on February 4th, and comment on the First Amendment issues they raise . . . ”

Times-Leader: “A federal judge today issued a permanent injunction precluding Wyoming County prosecutors from filing charges against several teen girls involved in a ‘sexting’ case . . . Munley’s ruling ends the case. Wyoming County may be on the hook to pay attorneys fees to the ACLU, however.” | Related: 3rd Circuit: Prosecutor’s offer of leniency to teens for sexting is unconstitutional retaliation

TimesLeader.com: “For nearly nine months, U.S. District Judge Thomas I. Vanaskie has continued presiding over cases at the federal courthouse in Scranton while his nomination for a seat on a federal appellate court has been stalled in the U.S. Senate. His wait ended on Wednesday. After partisan holdups that have kept Vanaskie, 55, of Clarks Green, playing the waiting game, the Senate voted 77-20 Wednesday afternoon to confirm his nomination to the U.S. Court of Appeals for the Third Circuit in Philadelphia . . . ”

OneNewsNow: “Five universities and colleges in Delaware, New Jersey, and Pennsylvania are being urged to revise their policies that may restrict the free-speech rights of Christian students . . . ADF attorney Jeremy Tedesco tells OneNewsNow that the Third U.S. Circuit Court of Appeals ruled in 2007, in another ADF case, that such restrictions are unconstitutional because they gave officials ‘an easy-to-abuse enforcement mechanism to punish any speech that they may decide is “offensive.”‘ That, says the attorney, presents a dilemma for students.”

ADF Attorney Jeremy Tedesco appeared on the Janet Mefferd Show to discuss university “speech codes” in the Third Circuit. | The mp3 runs just over 12 and a half minute. | ADF News Release: ADF to five universities: ‘Speech codes’ give officials too much latitude to define ‘offensive’ conduct

LifeNews: “A federal appeals court has revived the effort of a New Jersey pro-life group hoping to make it so motorists in the Garden State can purchase Choose Life license plates . . . ‘The government should not be singling out a pro-adoption group for censorship. Censoring the “Choose Life” logo on New Jersey license plates is a textbook case of viewpoint discrimination, which blatantly defies the First Amendment,’ [ADF Attorney Jeff Shafer] said.” | ADF News Release

ADF Attorney David French writing at NRO Phi Beta Cons: “Working with the Leadership Institute and Young America’s Foundation — two groups fighting the good fight on college campuses — the Alliance Defense Fund and its allied attorneys are taking the fight one step farther: sending letters on behalf of students at five public universities in the Third Circuit requesting that they comply with the law.”

PhillyBurbs.com (AP): “A nonprofit group’s effort to get a specialty New Jersey license plate with the tagline “Choose Life” has been revived by a federal appeals court. … The case will now be sent back to U.S. District Judge Joel A. Pisano for further proceedings. ‘Censoring the “Choose Life” logo on New Jersey license plates is a textbook case of viewpoint discrimination, which blatantly defies the First Amendment,’ said [Jeff Shafer], senior legal director of the Alliance Defense Fund, a conservative legal group that backed the suit.”

“The U.S. Court of Appeals for the 3rd Circuit issued an opinion Friday to reinstate a lawsuit dismissed by a district court in 2008 that sought to keep the New Jersey Motor Vehicle Commission from rejecting a pro-adoption organization’s ‘Choose Life’ license plates.”

Evangelical Examiner: “According to the Alliance Defense Fund, on behalf of students at five universities and colleges in Delaware, New Jersey, and Pennsylvania, they have sent letters today to inform the schools of the need to revise restrictive ‘speech codes’ on their books that do not comport with a ruling from the U.S. Court of Appeals for the 3rd Circuit. . . . ADF Legal Counsel Jeremy Tedesco said: ‘The 3rd Circuit has ruled that the kinds of ‘speech codes’ we see at these universities are unconstitutional primarily because they give officials an easy-to-abuse enforcement mechanism to punish any speech that they may decide is “offensive.” These policies need to be revised to respect student free speech rights that are protected by the First Amendment.’”

On behalf of students at five universities and colleges in Delaware, New Jersey, and Pennsylvania, the Alliance Defense Fund sent letters Thursday to inform the schools of the need to revise restrictive “speech codes” on their books that do not comport with a ruling from the U.S. Court of Appeals for the 3rd Circuit.

AP: “A federal court has at least temporarily lifted government rules that blocked media companies from owning a newspaper and a broadcast TV station in the same market . . . ”

‘What’s ironic about this case is the district attorney got penalized for being too nice . . ‘

Law.com (Legal Intelligencer): “Now lawyers on both sides of the issue are urging the 3rd U.S. Circuit Court of Appeals to vacate two recent — and seemingly conflicting — decisions by two different three-judge panels, and to hold rearguments before the full court. Both cases involved high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.” The article links to the opinions in question.

Robert D. Richards and Clay Calvert write at the National Law Journal: “The U.S. Supreme Court has yet to address a case involving the First Amendment speech rights of public school students who create Web sites, on their own time and while off campus, that mock school officials. But on the exact same day in early February, two different three-judge panels from the U.S. Court of Appeals for the 3d Circuit in Philadelphia issued rulings addressing that precise issue on nearly identical facts — and remarkably reached very different, if not diametrically opposed, conclusions.”

AP: “The 3rd U.S. Circuit Court of Appeals in Philadelphia on Tuesday will consider whether the FCC’s $550,000 fine for the broadcaster over the breast-baring performance is permissible.”

TimesLeader.com: “In December, the Senate Judiciary Committee voted 16-3 in support of the nomination of U.S. District Judge Thomas I. Vanaskie to the 3rd U.S. Circuit Court of Appeals. The Clarks Green resident’s nomination was sent to the full Senate awaiting a confirmation vote. More than two months later, no action has been taken . . . ”

NJ Star Ledger: “After months of delay, the U.S. Senate today unanimously confirmed a federal judge from New Jersey to fill an open seat on the nation’s second highest court.”

Shannon P. Duffy writes at Law.com (The Legal Intelligencer):

Lawyers were scratching their heads on Thursday over a federal appellate court’s seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school’s power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District . . .

Mike Adams writing at Townhall: “I’m glad I live in the United States of America, where such a trial would be prohibited by the First Amendment. I’m also glad I don’t teach at Temple University in Philadelphia, where students now have to pay an unconstitutional after-the-fact security fee levied by the university . . . Two years ago, Temple’s speech code was struck down by the Third Circuit. That lawsuit was handled by my friends at the Alliance Defense Fund. If the university does not begin to respect the First Amendment, additional humiliation and litigation are certain to follow.”

Philly.com: “The ACLU has been arguing that the threat to prosecute the girls is a violation of their First Amendment right to free speech. The ACLU told Timesleader.com of northeastern Pennsylvania that ‘There seems to be a knee-jerk reaction by many prosecutors that if you find some naked photos, you throw the book at whoever you can identify.’ I don’t find that persuasive. In fact, Donohue told me that “The transmission of photos of naked children draws predators like mosquitoes are drawn to a swamp.” As a result of the prosecutor bringing this case, a predator was caught with the photos and is now in jail. This underlines one of the D.A.’s major concerns.”

Radley Balko writing at Reason Magazine: “There have now been several cases across the country where young people who either pose for, snap, or forward provocative or nude photos of other minors are being charged or threatened with felony child pornography . . . These cases are the natural culmination of two trends. The first is the continuing view among politicians that there’s no punishment too severe for sex offenders. Moreover, to show how serious we are about sex offenders, we should broaden the class of people we classify under the label . . . The second trend is the ‘for the children’ excuse that no law ought to be questioned if its intent is to protect young people. The resulting paternalism is built in.”

” . . . all three judges seemed skeptical of the prosecutor’s claim that child pornography laws are violated when a teen transmits a nude image of herself.”

“The case is the first in the country to challenge the constitutionality of bringing child pornography charges in the context of sexting.”

Law.com (Legal Intelligencer): “It has been nearly eight months since the U.S. Supreme Court ordered the 3rd U.S. Circuit Court of Appeals to take a second look at the case and to consider reinstating the $550,000 in fines that the Federal Communications Commission imposed on CBS over Jackson’s breast-baring performance. Without comment, the justices said the 3rd Circuit should reconsider its decision in FCC v. CBS Corp. in light of the high court’s decision in FCC v. Fox Television Stations — a case that focused on the related issue of vulgar language.”

“The issue before us is whether a School District, in order to maintain a policy of complete religious neutrality, may prohibit celebratory religious music at school-sponsored events.”

Religion Clause Blog reports on the ruling in Miller v. Weinstein, (3d Cir., Nov. 9, 2009).

ADF Senior Legal Counsel David Cortman writing at JURIST: “In what’s commonly referred to in some circles as the ‘abortion distortion,’ the courts have abandoned their zealous protection of speech and thrown out the proverbial baby with the bathwater. Now, with the blessings of the courts, no longer are such regulations limited to prohibiting only unprotected conduct, they are prohibiting pure speech. And on a public sidewalk, no less.”

Jurist: “The ruling was the result of a lawsuit brought in 2006 by the Alliance Defense Fund (ADF) on behalf of Mary Kathryn Brown, a registered nurse who works in Pittsburgh and has sought to dissuade woman from undergoing abortions for more than 15 years.”

Pittsburgh Post-Gazette: “David Cortman, an attorney for the Alliance Defense Fund, which represents Ms. Brown in her case, praised the appellate decision. ‘This one finally draws the line,’ Mr. Cortman said. ‘This [ordinance], we know, goes too far. It draws a boundary line as to how far cities can go to restrict speech, and that’s important.’”

LifeNews: “[David] Cortman told LifeNews.com, ‘We agree with the court’s conclusion that the ordinance violated the free speech rights of pro-life advocates by zoning them out of areas where they have a First Amendment right to speak.’”

CitizenLink: “‘The court basically drew a well-needed line in the sand that government officials may not cross,’ [David Cortman] said. ‘The court agreed with us that it prohibited too much speech.’”

The U.S. Court of Appeals for the 3rd Circuit struck down an ordinance Friday that Alliance Defense Fund attorneys challenged as unconstitutional for prohibiting speech in specified zones outside Pittsburgh abortion clinics.

Law.com: “Simandle agreed with Assistant U.S. Attorney Elizabeth Pascal that because the plaintiffs couldn’t prove they had suffered any harm that was particularized, imminent or concrete, they lacked standing to sue. A claim that alleges the entire public is threatened or raises a general grievance about government isn’t a sustainable under the Article III of the constitution, Simandle ruled in Kerchner v. Obama, 09-253.” The article provides updates on similar challenges that are pending.

Law.com (The Legal Intelligencer): “In a ruling that broadens the scope of the Family and Medical Leave Act, the 3rd U.S. Circuit Court of Appeals has ruled that the statute’s retaliation provisions may be invoked by workers who claim they were fired for merely asking permission to take a leave and cannot be limited to those who actually exercised the right.”

Erdman v. Nationwide Insurance Co.

Law.com: “The 3rd U.S. Circuit Court of Appeals has ruled in a case of first impression that the protection of Section 1981 of the Civil Rights Act extends beyond employees to independent contractors . . . Brown v. J. Kaz Inc. d/b/a Craftmatic of Pittsburgh . . . ”

Thomas More Law Center: “On Monday, September 14th at 10:00 a.m., Robert Muise, an attorney with the Thomas More Law Center, will urge the U.S. Court of Appeals for the Third Circuit in Philadelphia to reverse a lower court ruling that upheld a New Jersey school district’s policy that banned the performance of religious music in the district’s public schools . . . he lawsuit was filed on behalf of Michael Stratechuk . . . ”

Bloomberg: “A 2006 federal law that prohibits gambling over the Internet was upheld by a U.S. appeals court after a challenge from a New Jersey-based nonprofit corporation that promotes electronic betting.”

Shannon P. Duffy writes at Law.com (Legal Intelligencer): “In its decision, the unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals sided with all the major sports leagues — the NFL, the NBA, the NHL and Major League …

“. . . federal appeals court has ruled that an effeminate gay man must be allowed to pursue a Title VII claim alleging that he was targeted for harassment because he failed to conform to ‘gender stereotypes.’”

NJ Law Journal (Law.com): “What got Saint Preux in trouble were statements he made to the Probation Office that wound up in his pre-sentencing report. He tried to shift the blame to co-defendant Naranjan Patel for signing more than 400 fraudulent immigration applications. Saint Preux also remarked that ‘the government doesn’t have the resources to go after the applicants. So they go after the attorneys.’”

U.S. v. Saint Preux, No. 07-4501.

Courthouse News Service: “Abortion protesters can’t gather on the handicapped entrance ramp to a Planned Parenthood clinic, the 3rd Circuit ruled, because the protest would block access to the ramp.”

McTernan v. York, No. 07-2670 (3rd Cir. Aug. 24, 2009)

NJ Law Journal: “A three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed the verdict, saying the research was for “informational” purposes only and was not the basis for Shwartz’s decision.”

The Scranton Times-Tribune: “President Barack Obama on Friday nominated a longtime Scranton federal judge to sit on an appeals court one step below the U.S. Supreme Court. U.S. District Judge Thomas Vanaskie, 55, is a scholar athlete from Shamokin who once considered a career as professional football player before going to law school.”

Hat tip: How Appealing

ABA Journal: “President Obama has nominated a lawyer known for her ERISA expertise and a federal judge from Pennsylvania for spots on two federal appeals courts.”

Shannon P. Duffy at the Legal Intelligencer (Law.com): “A man who was indicted as the leader of a child pornography ring in Delaware has lost an appeal that challenged both his 20-year prison term and a ban on using the Internet for another decade after he is released . . . But the decision in United States v. Thielemann [No. 08-2335] . . . helps define . . . how far judges can go in crafting the ‘conditions of release’ . . . ”

“The U.S. Court of Appeals for the 3rd Circuit ruled Wednesday that a New Jersey ministry represented by Alliance Defense Fund attorneys should have its First Amendment claims heard in federal district court.”