Three From the Third Circuit

The Third Circuit issued three published opinions in one day earlier this week. Here are summaries:

Dondero v. Lower Milford Tp., ___ F.4th ___ (3d Cir. 2021). Plaintiff filed a complaint asserting due process and federal Civil Rights Act claims after defendant eliminated its police department and terminated plaintiff’s employment as Police Chief. Defendant won a summary judgment at the District Court level. Plaintiff appealed, but the Third Circuit, speaking through Judge Hardiman, affirmed the summary judgment.

Plaintiff’s main claim was that he was entitled to a pre-termination hearing as a matter of due process. Judge Hardiman recognized that plaintiff had a property interest in his job, because (quoting a United States Supreme Court case) “public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process.” But there is a well-established exception “in a case that involves a legitimate government reorganization.” Judge Hardiman cited cases from other Circuits to support that exception. Plaintiff claimed that the reorganization here was a subterfuge, but the panel concluded that there was no evidence to support that idea.

A similar due process argument– that plaintiff was entitled to a hearing before disability benefits that he had been receiving were terminated– likewise failed. Citing a Pennsylvania Supreme Court case, Judge Hardiman concluded that plaintiff “was not entitled to a hearing before termination of his HLA benefits because his position was eliminated by the Township for economic reasons.” He was no longer an employee, so he was no longer entitled to benefits.

Plaintiff also advanced retaliation, First Amendment, and other claims. The panel made short work of all of them.

Clean Air Council v. United States Steel Corp., ___ F.4th ___ (3d Cir. 2021). This opinion by Judge Bibas resulted from a rarely-granted panel rehearing. The opinion replaced a prior ruling in the case, which was accordingly vacated.

This was an environmental case. Two paragraphs early in the opinion encapsulate the facts, the key issue, and the panel’s ruling, which applied de novo review:

“Following two fires at its steel plant, U.S. Steel polluted the air. Because that pollution violated its Clean Air Act permits and regulations, it reported the fires to the local officials who enforce that Act. Even so, the Clean Air Council, an environmental watchdog, sued. It argues that under CERCLA, U.S. Steel should have reported the pollution to the federal government too.

All the arguments hinge on the meaning of two words: ‘subject to.’ CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act) exempts from reporting any ‘federally permitted’ emissions. 42 U.S.C. § 9603. That includes emissions ‘subject to’ certain Clean Air Act permits and regulations. § 9601(10)(H) (emphasis added). The Council says that ‘subject to’ means ‘obedient to.’ Under its definition, an emission cannot be ‘subject to’ a permit or regulation that it violates. But that is just one meaning of those words, and not the one that fits here. Rather, in context, ‘subject to’ means ‘governed or affected by.’ Since U.S. Steel’s emissions were governed by a Clean Air Act permit, that means they were ‘federally permitted’ under CERCLA and thus exempt from federal reporting. Because the District Court got that right, we will affirm its dismissal.”

Randolph v. Secretary, Pennsylvania Department of Corrections, ___ F.4th ___ (3d Cir. 2021). This appeal resulted from a capital trial in Pennsylvania state court. Defendant hired counsel to replace his court-appointed counsel one week before that trial was to begin. Several days later, that new counsel asked that trial be postponed until the following month. When that request was denied, counsel asked for “just a couple of days” delay in the trial. The trial court denied that too. When counsel then sought to begin jury selection in the afternoon, ” so that he could attend a previously scheduled, mandatory engagement in the morning and then pick Randolph’s jury in the afternoon,” that, too, was denied.

Defendant thus ” had no choice but to proceed to trial represented by his court-appointed lawyer. The trial ended in convictions on all counts, including two counts of first-degree murder, and the trial court sentenced Randolph to death.”

On direct review, the Supreme Court of Pennsylvania ultimately upheld the convictions, rejecting Randolph’s argument that he had been deprived of his Sixth Amendment right to counsel of his choice.

“Years later, on federal habeas review, the District Court determined that the Pennsylvania Supreme Court’s decision unreasonably applied clearly established federal law, warranting de novo review of Randolph’s Sixth Amendment claim. Conducting that review, the District Court concluded that Randolph suffered a Sixth Amendment violation, a structural error not subject to harmless error analysis. The Court therefore granted Randolph’s petition for a writ of habeas corpus and gave the state ninety days to retry Randolph or release him, pending the resolution of any appeal.” On appeal, the Third Circuit affirmed. Judge Restrepo wrote the panel’s opinion.

The panel was unusually critical of the Supreme Court of Pennsylvania’s decision, citing numerous respects in which that ruling was deficient. Ultimately, Judge Restrepo concluded that “the decision of the Pennsylvania Supreme Court involved an unreasonable application of clearly established Sixth Amendment law. Said another way, we are satisfied that no fairminded jurist could disagree that the Pennsylvania Supreme Court’s decision conflicts with the Supreme Court’s Sixth Amendment jurisprudence.”

The Third Circuit held that “[g]ranting [counsel’s] three-hour continuance would not have been unfair to the prosecution, nor would it have strained the state’s interest in the swift and efficient administration of criminal justice or permitted Randolph to unreasonably clog the machinery of justice or hamper and delay the state’s efforts to effectively administer justice. It was just three hours.”