Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

The district court dismissed a consolidated class action in which plaintiffs, children younger than 13, alleged that Viacom and Google unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites. The claims alleged invasion of privacy under New Jersey law and cited the 1988 Video Privacy Protection Act, 18 U.S.C. 2710 which prohibits the disclosure of personally identifying information relating to viewers’ consumption of video-related services. The Third Circuit affirmed in part, holding that the Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information, and that the prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior, so that digital identifiers, like IP addresses, fall outside the Act. The court vacated dismissal of a claim of intrusion upon seclusion that alleged that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then did so. The 1998 Children’s Online Privacy Protection Act, 15 U.S.C. 6501,authorizing the FTC to regulate websites that target children, does not preempt the state-law privacy claim. View "In Re: Nickleodeon Consumer Privacy Litig." on Justia Law

New Jersey ATF agents met with Burk, a convicted felon facing forgery charges who was a confidential informant. Questioned about associates who were involved in robberies or violent crimes, Burk responded that Dennis had spoken of conducting home invasions and other robberies. The agents were previously unaware of Dennis. They confirmed that Dennis had several felony convictions relating to drugs and burglary. Burk told agents that Dennis had previously requested his help in robbing a check-cashing operation. At the direction of the agents, Burk tried, several times, to enlist Dennis’ help in various robbery schemes. When Burk told him that the job was necessary to help Burk's mother who had cancer, Dennis agreed. At trial, a defense witness testified that Dennis suffers from neurocognitive impairments, with an IQ score of 74. After the “reverse sting,” Dennis was convicted of conspiracy to rob a narcotics “stash house,” 18 U.S.C. 1951(a), 21 U.S.C. 841(a)(1), and 841(b)(1)(A), and of carrying a firearm during the commission of the crime, 18 U.S.C. 924(c)(1)(A)(i), and was sentenced to 180 months’ imprisonment. The Third Circuit vacated the conviction; the court should have given an entrapment instruction on the robbery and gun possession charges. The court affirmed on the remaining drug charge. View "United States v. Dennis" on Justia Law

Bedolla illegally entered the U.S. in 1991; he traveled to Mexico and re-entered at least once since then. In 2012, he was arrested for failure to appear on a charge of driving under the influence of alcohol. He was placed in removal proceedings, 28 U.S.C. 1229a, as an alien present without being admitted or paroled. His application for adjustment of status was rejected because Bedolla had departed and reentered without inspection after accruing more than one year of unlawful presence in the U.S., 8 U.S.C. 1182(a)(9)(C)(i)(I). Before a scheduled hearing date, Bedolla pleaded guilty to possession with intent to manufacture or deliver cocaine. DHS placed Bedolla in expedited administrative removal proceedings under 8 U.S.C. 1228(b). The unsigned Certificate of Service accompanying the notice did not indicate the date or manner of attempted service, but indicated that Bedolla refused to acknowledge receipt. The period for response elapsed without response. A Final Administrative Removal Order (FARO) was signed. Bedolla timely filed a petition for review of the FARO. The Immigration Judge terminated the removal proceeding. The Third Circuit denied a petition for review, rejecting claims of due process violations and that a FARO was inappropriate because Bedolla was not convicted of an “aggravated felony.” View "Bedolla-Avila v. Att'y Gen. of the United States" on Justia Law

Ordonez, a citizen of Guatemala, entered the U.S. without inspection in 2014 and was detained. She claims that she expressed fear of returning to Guatemala because of abuse she had suffered there. The Department of Homeland Security removed her, but less than two months later, Ordonez reentered with the youngest of her three sons, Gonzalez, then six years old. Border Patrol detained them. DHS initiated proceedings to restore the prior order of removal and served Gonzalez with notice under 8 U.S.C 1182(a)(6)(A)(i). While proceedings were pending, Ordonez sought asylum, withholding of removal, and protection under the Convention Against Torture, based on her alleged fear of abusive conduct by her former boyfriend. Gonzalez applied for derivative relief. An IJ and the BIA denied relief. While a petition was pending in the Third Circuit, the BIA granted a joint motion to reopen and reissued its decisions and orders without change. Ordonez did not file a petition for review in of the reissued decisions and orders. The Third Circuit held that, because the reissued decisions and orders did not alter the challenged decisions and orders it had jurisdiction over the petition, but denied that petition on the merits. View "Ordonez-Tevalan v. Att'y Gen. of the United States" on Justia Law

Frias-Camilo, a citizen of the Dominican Republic, entered the U.S. as a lawful permanent resident in 2006. In 2013, he entered a plea of guilty in Pennsylvania state court to conspiracy to possess a controlled substance, cocaine. He was originally sentenced to a 12-month period of probation, but, 16 months later, the court amended his sentence and imposed a sentence of “guilty without further penalty,” pursuant to 42 Pa. Cons. Stat. 9723.2, vacating several earlier-imposed punitive aspects of Frias-Camilo’s sentence. DHS charged removability under 8 U.S.C. 1227(a)(2)(B)(i) and an immigration judge rejected Frias-Camilo's claims. The Third Circuit denied a petition for review, upholding the BIA’s determination that Frias-Camilo was removable and ineligible for cancellation of removal because he had not demonstrated his physical presence in the U.S. for a period of seven years. A “formal judgment of guilt” was entered against Frias-Camilo, establishing his “conviction” as defined by 8 U.S.C. 1101(a)(48)(A). View "Frias-Camilo v. Att'y Gen. of the United States" on Justia Law

Roberts, a former Montgomery County, Pennsylvania employee, brought suit, alleging that he “suffered continual retaliation, discrimination and humiliation” at work. Some claims were dismissed. After Roberts alleged bias on the part of a magistrate judge, the case was reassigned to Judge Savage, who requested supplemental briefing on the effect of recent change in Pennsylvania law. Judge Savage subsequently entertained the parties’ arguments, then granted the defendants summary judgment on two counts. A jury rendered a verdict in favor of defendants on all remaining counts. Because Roberts again raised allegations of bias, the case was reassigned to Judge Quinones, who discovered that four of the six days of the trial transcript had been lost. Judge Quinones granted Roberts’ motion for extraordinary relief and ordered the court reporting company to produce the transcript. Months later, after several unsuccessful attempts to obtain transcripts, Judge Quinones concluded that another such order would be futile, and ordered the parties to recreate the record pursuant to Federal Rule of Appellate Procedure 10(c) so that she could rule on Roberts’ post-trial motion. Roberts did not comply, arguing that the parties would not be able to agree on a 10(c) statement. Concluding that Roberts’ decision constituted a failure to prosecute, Judge Quiñones dismissed his motion. The Third Circuit affirmed, upholding Judge Savage’s summary judgment decision and the dismissal by Judge Quinones. View "Roberts v. Ferman" on Justia Law

Gourzong, a native of Jamaica, was admitted to the U.S. as a lawful permanent resident in 1983. In 1993, having joined the U.S. military, he was convicted by a special court-martial at Camp Pendelton of willfully disobeying a lawful order, 10 U.S.C. 890(2), and “commit[ing] an act of sexual intercourse with a female not his wife who has not attained the age of sixteen years,” 10 U.S.C. 920. Gourzong was represented by counsel and pleaded guilty. He received a sentence of six months confinement, loss of pay, and bad-conduct discharge. The convening authority suspended part of the confinement and withheld executing the bad-conduct discharge until after appellate review procedures, 10 U.S.C. 871(c). An IJ found Gourzong removable, 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of an aggravated felony. The BIA affirmed, rejecting his argument that convictions by special courts-martial categorically fall outside the definition in 8 U.S.C. 1101(a)(48)(A): “‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court.” Although it is possible that a special court-martial can convene without a legally trained judge presiding, their convictions generally qualify as convictions under the Act. The Third Circuit agreed and, therefore, concluded that it lacked jurisdiction to consider Gourzong’s appeal. View "Gourzong v. Att'y Gen. of the United States" on Justia Law

The 1988 Child Protection and Obscenity Enforcement Act requires producers of visual depictions of “actual sexually explicit conduct” to keep records documenting the identity and age of every performer in those depictions, 18 U.S.C. 2257(a). The 2006 Adam Walsh Child Protection and Safety Act, 18 U.S.C. 2257A, extended similar requirements to producers of depictions of “simulated sexually explicit conduct.” Producers are required to examine “an identification document” for each performer and maintain records listing each performer’s name and birthdate, available for inspection “at all reasonable times.” Producers must “affix[] to every copy” of covered depictions “a statement describing where the records . . . may be located.” After the district court dismissed a challenge, the Third Circuit identified viable as-applied and facial claims under the First and Fourth Amendments. Following remand, the Third Circuit held that the administrative search regime violates the Fourth Amendment, but that the laws did not violate the First Amendment. Reviewing the case for a third time, in light of 2015 Supreme Court holdings (Reed v. Town of Gilbert and City of Los Angeles v. Patel), the Third Circuit determined that the statutes are content-based, and require strict scrutiny review under the First Amendment and remanded. View "Free Speech Coal., Inc. v. Att'y Gen. of the United States" on Justia Law

In 2008 and 2011, the two defendants pled guilty to drug offenses. In 2014, the Sentencing Commission promulgated Amendment 782 to the Guidelines, which retroactively reduced by two levels the base offense levels assigned to many drug quantities, including the drug quantities associated with defendants' offenses. Defendants filed 18 U.S.C. 3582(c)(2) motions for sentence reduction. That section permits a district court to exercise its discretion to reduce a sentence only if the sentence is “based on” a Guidelines range that has subsequently been lowered and a sentence reduction would be consistent with the Sentencing Commission’s policy statements. The Sentencing Commission’s policy statement prohibits a district court from reducing a defendant’s sentence unless a subsequent amendment to the Guidelines lowers the defendant’s “applicable guideline range.” Amendment 759, promulgated in 2011, provides that a defendant’s “applicable guideline range” is to be determined before any departures and variances. The Third Circuit affirmed denial of their motions, citing Amendment 759. Their pre-departure/pre-variance “applicable guideline ranges” were calculated using the base offense levels for career offenders in Guidelines 4B1.1, which have not been lowered. The court rejected an argument that Amendment 759 is an invalid ex post facto law. View "United States v. Thompson" on Justia Law

Cen, a Chinese national, was 19 when her mother married a U.S. citizen in China. After obtaining her K-4 visa and moving to the U.S. with her mother, Cen sought to adjust her status; her stepfather filed an I- 130 petition on her behalf. Cen’s application was denied because Cen was 19 when her mother married and could not be deemed her stepfather’s “child” under 8 U.S.C. 1101(b)(1)(B). After becoming a lawful permanent resident, Cen’s mother filed an I-130 petition on Cen’s behalf, which was approved. Cen again applied for adjustment of status. She was denied because the Regulation specifies that a K-4 child’s I-130 petition must be filed by “the same citizen who petitioned for the alien’s parent’s K-3 status,” i.e., the U.S. stepparent. 8 C.F.R. 245.1(i). The government opened removal proceedings against her for overstaying her original K-4 visa. The BIA upheld an IJ’s determination that Cen was not entitled to relief. The Third Circuit reversed, stating that immigration laws may be labyrinthine, but should not “offer older K- 4 children nothing more than a legal dead end.” The court joined the Seventh Circuit in holding that 8 C.F.R. 245.1(i) is invalid because it “essentially reverses the eligibility structure set out by Congress.” View "Cen v. Attorney General of the United States" on Justia Law