Villanova University School of Law: Digital Repository

USDC for the District Court of the Virgin Island

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-7-2025 
USA v. Melania Syder 
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Recommended Citation 
"USA v. Melania Syder" (2025). 2025 Decisions. 14. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/14 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1145 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
MELANIA SYDER, 
     Appellant 
____________ 
 
On Appeal from the District Court 
for the Virgin Islands 
(D.C. Criminal No. 3:23-CR-00050-001) 
Magistrate Judge: Honorable Ruth Miller
____________ 
 
Argued on December 11, 2024 
 
Before:  CHAGARES, Chief Judge, MONTGOMERY-REEVES and FISHER,  
Circuit Judges. 
 
(Filed: January 7, 2025) 
 
Matthew A. Campbell ARGUED 
Office of Federal Public Defender 
1336 Beltjen Road 
Suite 202, Tunick Building 
St. Thomas, VI 00802 
Counsel for Appellant 
 
Delia L, Smith, United States Attorney 
Adam Sleeper, Assistant United States Attorney ARGUED 
Office of United States Attorney 
5500 Veterans Drive 
 
 
2 
United States Courthouse, Suite 260 
St. Thomas, VI 00802 
Counsel for Appellee 
 
 
____________ 
 
OPINION* 
____________ 
 
FISHER, Circuit Judge. 
Melania Syder was tried and convicted of illegal entry into the United States under 
8 U.S.C. § 1325(a). At her bench trial, she presented none of her own witnesses or 
evidence. After the close of the Government’s case and concurrently with her closing 
argument, she moved for a judgment of acquittal under Federal Rule of Criminal 
Procedure 29. The District Court denied this motion, finding Syder guilty and sentencing 
her to time served. Syder appeals the denial of her Rule 29 motion and requests that we 
reverse her conviction and remand with instructions to grant her Rule 29 motion and 
dismiss her case.1 First, she argues that the evidence was insufficient to sustain her 
conviction because the Government failed to prove “beyond a reasonable doubt that she 
 
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
1 Although Syder is not in custody at the time of filing her appeal, her request to 
have her conviction vacated and the case against her dismissed is not moot. United States 
v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (holding that a “request for relief from 
a judgment of sentence does not become moot upon the satisfaction of that sentence when 
burdensome collateral consequences [such as immigration consequences] flow from the 
judgment of conviction and survive the satisfaction of the sentence.”). 
 
 
3 
knew she was entering the United States when she set foot on [St.] John.”2 Second, she 
argues that because the District Court failed to make a specific finding that she 
knowingly entered the United States, she was convicted without all elements of the crime 
being proven. We disagree and will affirm. 
Under Rule 29, “the court on the defendant’s motion must enter a judgment of 
acquittal of any offense for which the evidence is insufficient to sustain a conviction.”3 
To sustain its burden of proof in criminal prosecutions, the Government “must establish 
each element [of a crime] beyond a reasonable doubt.”4 When reviewing the decision to 
grant or deny a Rule 29 motion, we conduct a “‘highly deferential’ review”5 and must 
reject a sufficiency of the evidence challenge if, after viewing the evidence as a whole 
 
2 Appellant’s Br. 6. Section 1325 does not refer to the intent required for illegal 
entry, and this Court has never squarely addressed it. Neither have our sister circuits, 
though many have discussed the mens rea required for a closely related statute 
criminalizing illegal reentry, 8 U.S.C. § 1326. See, e.g., United States v. Berrios-Centeno, 
250 F.3d 294, 298 (5th Cir. 2001) (“[T]hat general intent is the appropriate mental state 
for § 1326 offenses in all circumstances, is in accord with our sister circuits.”).  
We need not weigh in on this issue here. As discussed below, the District Court 
had a reasonable basis to conclude that Syder knowingly entered the country, even if 
§ 1325 demands that level of intent. And this Court “may affirm the District Court’s 
judgment on any basis supported by the record.” Murray v. Bledsoe, 650 F.3d 246, 247 
(3d Cir. 2011) (per curiam). Because we need not determine for this appeal what mens 
rea under § 1325 requires, we leave that question for another day. 
3 Fed. R. Crim. P. 29(a). 
4 United States v. Caraballo-Rodriguez, 726 F.3d 418, 425 (3d Cir. 2013) (en 
banc). 
5 United States v. Sussman, 709 F.3d 155, 162 (3d Cir. 2013) (quoting United 
States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000)). 
 
 
4 
and “in the light most favorable to the prosecution, any rational trier of fact could have 
found the essential elements of the crime beyond a reasonable doubt.”6 As the original 
motion for acquittal arose at the close of the Government’s case and in conjunction with 
Syder’s closing argument, we may review all evidence that the District Court reviewed.7  
Given Syder’s admission that she was an alien who illegally entered the United 
States when she landed on St. John, the Government was only required to prove that 
Syder knowingly entered the United States. Reviewing the District Court’s decision with 
the appropriate deference, we agree that the Government met its burden. While the 
Government must provide sufficient evidence to support a finding that Syder knew she 
was entering the United States, it may do so using direct or circumstantial evidence.8 This 
includes inferences, so long as they bear a logical or convincing connection to the 
established facts.9 Here, the Government presented more evidence than Syder’s mere 
presence in the United States to support the inference that she knowingly entered. It 
presented evidence that upon Syder’s alleged surprise arrival on St. John in the middle of 
the night, she made no attempt to return to Tortola, even though she had booked a hotel 
there, had left all her belongings there, and had planned to be there for fifteen days to 
 
6 Caraballo-Rodriguez, 726 F.3d at 424–25 (quoting Jackson v. Virginia, 443 U.S. 
307, 318–19 (1979)). 
7 See United States v. Brodie, 403 F.3d 123, 133–34 (3d Cir. 2005) (“Our scope of 
review is dictated by the procedural posture in which this case comes before us.”). 
8 See id. at 134. 
9 Caraballo-Rodriguez, 726 F.3d at 425. 
 
 
5 
visit with friends. The Government also established that Syder took a ferry to St. Thomas 
the next morning, where she found lodging, worked as a hairstylist and masseuse, and 
spent six months without reporting to immigration authorities. Based on this evidence, 
the District Court found that Syder’s assertion of unknowing entry did not “ring true.”10  
Syder argues that the District Court’s failure to believe her imposed on her the 
affirmative burden of proving lack of knowledge and violated her due process right to 
have the Government prove all elements of the charged crime. Syder also argues that 
“while the [District] Court could disbelieve the affirmative evidence of [her] innocence, 
that disbelief did not a fortiori create affirmative evidence of guilt.”11 In so arguing, 
Syder misunderstands the broad discretion afforded to factfinders in weighing the 
evidence presented to them. First, the District Court did not make any impermissible 
inferences from Syder’s failure to testify, such as inferring guilt.12 Second, when the facts 
support conflicting inferences, “we ‘must presume . . . that the trier of fact resolved any 
such conflicts in favor of the prosecution, and must defer to that resolution.’”13 Finally, 
by requesting that we disregard the District Court’s determination that her statement was 
not credible, Syder essentially asks us to review the District Court’s determination of her 
 
10 JA 47. 
11 Appellant’s Br. 17. 
12 See Mitchell v. United States, 526 U.S. 314, 327–28 (1999) (reaffirming that a 
finder of fact may not draw a negative inference from a criminal defendant’s failure to 
testify). 
13 Eley v. Erickson, 712 F.3d 837, 850 (3d Cir. 2013) (quoting Jackson, 443 U.S. 
at 326). 
 
 
6 
credibility, which we cannot do.14 Accordingly, we agree with the District Court that the 
Government presented sufficient evidence to sustain a guilty verdict. 
Syder also challenges the District Court’s failure to make a specific finding as to 
whether she knew she was entering the United States. First, she argues that she was 
convicted without all elements of the crime having been proven.15 However, under 
Federal Rule of Criminal Procedure 23, a district court is not required to make specific 
findings unless a defendant or the Government requests it do so.16 Given that neither 
Syder nor the Government requested specific findings of fact prior to the verdict being 
rendered, nor did either party ask for clarification after the verdict, the District Court was 
not obligated to make specific findings corresponding to each element of § 1325. 
Therefore, as the reviewing court, we may “imply findings of fact that support a general 
finding of guilt in a non-jury trial where the evidence so warrants and the defendant has 
not requested specific findings under Fed. R. Crim. P. 23.”17 Additionally, Syder’s 
argument misplaces the burden of the prosecution and wrongfully attributes it to the 
District Court. Although the District Court did not enter specific findings of fact, the 
 
14 Gov’t of Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974) (credibility 
determinations are uniquely the province of the fact finder), abrogated on other grounds 
by Corley v. United States, 556 U.S. 303, 322 (2009).  
15 Appellant’s Br. 21–22. 
16 United States v. Livingston, 459 F.2d 797, 798 (3d Cir. 1972) (en banc) (holding 
that Rule 23 “requires only that the court ‘make a general finding and [. . .] in addition on 
request find the facts specially.’” (alteration in original) (quoting Fed. R. Crim. P. 23(c))). 
17 United States v. Farrell, 126 F.3d 484, 491 (3d Cir. 1997) (internal citations 
omitted). 
 
 
7 
Government’s burden of proving all elements of the crime remained the same. As 
established above, the Government met its burden.  
Further, even if we accept Syder’s argument that the District Court nevertheless 
made specific findings of fact, we hold that the District Court properly found knowledge. 
Specifically, the District Court held that “the government has proved that Ms. Syder is an 
alien who entered the United States at a . . . time and place other than as approved by 
immigration authorities, and she did violate the terms of [§] 1325.”18 The District Court 
also specifically determined that Syder was guilty because she knew how to legally enter 
the United States, “but did not follow [the law],” and found it “incredible” that  “she 
would get on a boat from another country, leave all of her belongings, and then just say, 
yeah, well I might as well just stay here while I’m here.”19 If we take these statements as 
specific findings of fact in support of the verdict, “[o]ur review of the evidence satisfies 
us that [knowledge] was a possible finding on the evidence taken as a whole.”20 
Therefore, the District Court did not err in finding Syder guilty. 
Finally, Syder argues that, because the Government asserted that § 1325 is a strict 
liability statute at trial and because the District Court did not specifically “conclude[] 
beyond a reasonable doubt that [she] knew she was entering the United States,” we must 
 
18 JA 46. 
19 JA 46–47. 
20 Gov’t of the Virgin Islands v. Smith, 278 F.2d 169, 173 (3d Cir. 1960). 
 
 
8 
reverse the conviction.21 However, even if § 1325 requires proof of knowledge, we still 
conclude that the District Court properly found all elements of the crime. Although the 
Government at trial argued that § 1325 is a strict liability statute, the District Court did 
not rule on this issue. Additionally, the District Court was aware that the only issue 
before the Court was whether Syder had knowingly entered the United States. 
Accordingly, when the District Court not only explicitly stated that Syder’s conduct 
violated § 1325, but also detailed that it found her asserted lack of knowledge 
unbelievable, the District Court ruled on the issue of whether Syder knew she was 
entering the United States.  
As the Government presented sufficient evidence to prove Syder guilty under 
§ 1325(a) and the District Court found all necessary elements of the crime, we will 
affirm.  
 
21 Appellant’s Br. 22. 


English

USA v. Melania Syder

Alicia Cohen v. Ronald Cohen

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-7-2025 
Melanie Miller v. USAA General Indemnity Co 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Melanie Miller v. USAA General Indemnity Co" (2025). 2025 Decisions. 16. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/16 
This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 23-1934 
____________ 
 
MELANIE MILLER, 
     Appellant 
 
v. 
 
USAA GENERAL INDEMNITY COMPANY  
____________ 
 
On Appeal from the United States District Court  
for the Middle District of Pennsylvania 
(D.C. Civil No. 1:21-cv-01889) 
District Judge: Honorable Christopher C. Conner 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
June 6, 2024 
 
Before:  CHAGARES, Chief Judge, CHUNG and FISHER, Circuit Judges. 
 
(Filed: January 7, 2025) 
____________ 
 
OPINION* 
____________ 
 
FISHER, Circuit Judge. 
Melanie Miller suffered injuries after a motorist turned into oncoming traffic and 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 
does not constitute binding precedent. 
 
 
2 
struck a vehicle in which she was a passenger. At the time, Miller lived with her 
daughter, Kayleigh Halverson, and Kayleigh’s grandmother, Tammy Halverson. Miller 
submitted a claim for underinsured motorist (UIM) benefits under a USAA General 
Indemnity Company auto insurance policy held by Tammy Halverson. After USAA 
declined to offer the full stacked UIM benefit, Miller brought suit for breach of contract 
and bad faith. The District Court granted USAA’s motion for summary judgment, 
concluding that Miller is not a “covered person” under the policy’s UIM provisions and, 
therefore, not entitled to benefits. We will affirm.1 
To prevail on a motion for summary judgment, USAA as the moving party must 
show “that there is no genuine dispute as to any material fact and [it] is entitled to 
judgment as a matter of law.”2 Miller argues there is a genuine issue of material fact on 
the breach of contract claim because she could be a covered person under the USAA 
policy’s UIM provisions. The rules of interpreting insurance contracts in Pennsylvania 
are well settled.3 The goal is to determine the intent of the parties, which begins with the 
policy’s language.4 “A policy must be read as a whole and its meaning construed 
 
1 The District Court had jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity). This 
Court has jurisdiction under 28 U.S.C. § 1291 (final decisions of district courts). “Our 
standard of review is plenary, meaning we review anew the District Court’s summary 
judgment decisions, applying the same standard it must apply.” Ellis v. Westinghouse 
Elec. Co., 11 F.4th 221, 229 (3d Cir. 2021).  
2 Fed. R. Civ. P. 56(a). 
3 Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 163 (3d Cir. 2011). 
4 Id. 
 
 
3 
according to its plain language.”5 The USAA policy lists Tammy Halverson as the only 
“Named Insured” on the policy’s declarations page6 and, as relevant here, limits UIM 
coverage to the named insured or “family member[s]” of the named insured.7 It defines a 
“[f]amily member” as a person related to the named insured “by blood, marriage, or 
adoption” and primarily residing in the same household as the named insured.8  
Miller contends that Kayleigh Halverson is a named insured under the USAA 
policy because Kayleigh Halverson is listed (or “named”) as an “operator” on the 
policy’s declarations page.9 Miller must then be an insured, she implies, because she is a 
relative of the named insured, referring to Kayleigh Halverson.10 However, if someone is 
“merely a driver under the policy,” that does not give her “‘named insured’ status.”11 The 
USAA policy is clear that Kayleigh Halverson is an “Operator[],” not a “Named 
Insured.”12 There is no evidence in the record that Miller is related to the named insured, 
 
5 Id. 
6 App. 55. 
7 App. 107. 
8 App. 95. 
9 Appellant’s Br. 14 & n.3. 
10 Miller does not take issue with the District Court’s conclusion that “[she] is not 
related to Tammy Halverson by blood, marriage, or adoption.” App. 20. That is to say, 
Miller does not assert that she is related to Tammy because she and Tammy are both 
related to Kayleigh. We therefore need not determine whether that argument would 
comport with the policy’s definition of a “family member,” App. 95, or “relative” as used 
in the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. Cons. 
Stat. § 1702. 
11 Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 639 n.3 (3d Cir. 2000). 
12 App. 55. 
 
 
4 
Tammy Halverson, by blood, marriage, or adoption. 
Miller further argues that the policy’s express limitations on the persons covered 
under its UIM provisions conflict with the requirements of the MVFRL.13 She argues that 
those limitations, which exclude her as a covered person, act as an improper disguised 
waiver of the MVFRL’s UIM stacking requirements. The MVFRL defines “insured” as 
either “[a]n individual identified by name as an insured in a policy” or “[i]f residing in 
the household of the named insured: . . . a spouse or other relative of the named 
insured.”14 The MVFRL does not define “named insured” or “relative.” In Pennsylvania, 
“[n]o motor vehicle liability insurance policy shall be . . . issued” without offering UIM 
coverage—and stacked UIM coverage when more than one vehicle is covered—though 
the “named insured” can expressly waive such coverage.15  
Miller is generally correct that UIM coverage and stacked benefits cannot be 
waived in any way other than by the named insured completing the form provided in the 
statute.16 But the issue here is not whether the named insured waived UIM benefits, 
expressly or otherwise. Indeed, the USAA policy includes full, stacked UIM benefits for 
 
13 75 Pa. Cons. Stat. §§ 1701–1799.7. 
14 Id. § 1702. 
15 Id. §§ 1731(a), 1738. 
16 Id. §§ 1731(b), 1738(b); see also Nationwide Ins. Co. v. Resseguie, 980 F.2d 
226, 233 (3d Cir. 1992) (holding that “a request for lower coverage [must] be in writing 
by a named insured”); Gallagher v. Geico Indem. Co., 201 A.3d 131, 132 (Pa. 2019) 
(holding that, depending on the circumstances, a “household vehicle exclusion” provision 
in a UIM policy can be invalid as a de facto waiver of stacking). 
 
 
5 
“covered persons.” Unfortunately for Miller, she is not a covered person, and “[a]bsent a 
statutory prohibition, . . . exclusions limiting the scope of UIM coverage . . . are generally 
enforceable.”17 
With regard to the bad faith claim, Miller argues that USAA acted in bad faith by 
denying her request for the full $900,000 stacked UIM benefit and insisting she is not a 
covered person under the policy. As evidence, she points to USAA’s initial offer to settle 
the UIM claim for $300,000, which she says created a reasonable expectation that her 
claim would be covered. USAA offered the $300,000 settlement in exchange for 
releasing USAA “from any and all claims that [Miller] may have under” the policy.18 
Miller rejected the offer and inquired about the availability of the policy’s larger stacked 
benefit, after which USAA discovered that Miller does not meet the definition of a 
covered person under the policy. It is not bad faith to conduct a thorough “post-claim 
eligibility investigation.”19 
A court can award interest and punitive damages in an insurance policy action 
when the “court finds that the insurer has acted in bad faith toward the insured.”20 But the 
duty of “good faith arises from the insurance policy and is owed to the insured, not to a 
third-party claimant.”21 Miller faces the same problem here as she does in her breach of 
 
17 Mid-Century Ins. Co. v. Werley, 114 F.4th 200, 207 (3d Cir. 2024). 
18 App. 39. 
19 Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 138 (3d Cir. 2005). 
20 42 Pa. Cons. Stat. § 8371. 
21 Strutz v. State Farm Mut. Ins. Co., 609 A.2d 569, 571 (Pa. Super. Ct. 1992). 
 
 
6 
contract claim—she is not an “insured” under the UIM provisions of the USAA policy. 
USAA does not have a duty of good faith with respect to Miller, and so her statutory bad 
faith claim cannot succeed. 
For the foregoing reasons, we will affirm. 


Melanie Miller v. USAA General Indemnity Co

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-9-2025 
Middlesex Water Company v. Pennsylvania Public Utility 
Commission 
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Recommended Citation 
"Middlesex Water Company v. Pennsylvania Public Utility Commission" (2025). 2025 Decisions. 23. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/23 
This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
________________ 
 
No. 24-1186 
________________ 
 
MIDDLESEX WATER COMPANY, 
                                                                 Appellant 
 
v. 
 
PENNSYLVANIA PUBLIC UTILITY COMMISSION; 
GLADYS BROWN DUTRIEUILLE, Chairperson of the Pennsylvania Public 
Utility Commission, in her official capacity; STEVEN M. DEFRANK, Vice Chairperson 
of the Pennsylvania Public Commission, in his official capacity; 
RALPH V. YANORA, Commissioner of the Pennsylvania Public 
Utility Commission, in his official capacity; KATHRYN L. ZERFUSS, Commissioner on 
the Pennsylvania Public Utility Commission, in her official capacity; JOHN F. 
COLEMAN, Jr.; AQUA PENNSYLVANIA, INC. 
_____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil No. 3-23-cv-00483) 
District Judge: Honorable Christopher C. Conner 
________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on November 5, 2024 
 
Before: KRAUSE, SCIRICA, and RENDELL, Circuit Judges. 
 
(Filed: January 9, 2025) 
 
 
 
 
 
 
 
 
 
2 
 
________________ 
 
OPINION* 
________________ 
 
 
SCIRICA, Circuit Judge 
 
Middlesex Water Company challenges the dismissal of its constitutional claims 
against the Pennsylvania Public Utility Commission, its commissioners, and Aqua 
Pennsylvania.  Because the District Court correctly determined Middlesex Water 
Company’s claims were res judicata, we will affirm. 
I. 
We write principally for the parties, who are familiar with the factual context and 
legal history of this case. Therefore, we will set forth only those facts necessary to our 
analysis. 
Appellant Middlesex Water Company (“Middlesex”) is a New Jersey-based water 
utility company.  On February 26, 2008, Middlesex sought a Certificate of Public 
Convenience (“CPC”) from Pennsylvania Utility Commission (“PUC”), appellee, for a yet-
to-be-created subsidiary, which Middlesex planned to use to acquire and operate a water 
system in Pike County.  After it was awarded the CPC, Middlesex created Twin Lakes 
Utilities, Inc. (“Twin Lakes”) to run the system.   
All parties agree the system was in distress by 2020 and Twin Lakes was struggling 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 
does not constitute binding precedent. 
 
 
 
3 
 
financially.  Twin Lakes filed a petition with PUC under 66 Pa. Cons. Stat. § 529 (2019), 
requesting PUC order a “capable public utility to acquire” the Twin Lakes system, id. § 
529(a).  In a Pennsylvania state administrative proceeding, an Administrative Law Judge 
(“ALJ”) recommended the petition be granted and appellee Aqua Pennsylvania, Inc. 
(“Aqua”) acquire the system.  But the ALJ conditioned the acquisition on Middlesex 
placing $1.675 million into escrow “to offset the costs of replacing and remediating the 
existing infrastructure.”  App. 52.  PUC adopted the ALJ’s recommendation in a final order 
on November 18, 2021.  During the administrative proceedings, Twin Lakes raised 
constitutional objections to the escrow requirement on Middlesex’s behalf.   
Days later, Twin Lakes challenged the PUC order in Pennsylvania Commonwealth 
Court, once more raising the constitutional challenges it presented before PUC.  The 
Commonwealth Court ultimately upheld PUC’s order, finding PUC had jurisdiction over 
Middlesex to impose the escrow condition and was within its statutory authority to do so.  
Twin Lakes Utils., Inc. v. Pa. Pub. Util. Comm’n, 281 A.3d 384 (Pa. Commw. Ct. 2022), 
appeal denied, 293 A.3d 566 (Pa. 2023).  Twin Lakes appealed, and the Supreme Court of 
Pennsylvania denied review.  Id. 
Middlesex then sued PUC in the Middle District of Pennsylvania, arguing it was 
“left with only the federal courts as a bulwark against” PUC’s allegedly unconstitutional 
behavior.  App. 77.  Middlesex raised the same constitutional objections Twin Lakes 
asserted in the PUC and Commonwealth Court proceedings (and several new ones), 
arguing the imposition of the escrow condition violated the Due Process Clause, Equal 
Protection Clause, Dormant Commerce Clause, Takings Clause, and doctrine of 
 
 
 
4 
 
unconstitutional conditions.  The District Court permitted Aqua to intervene as a defendant 
and granted defendants’ motions to dismiss, holding Middlesex was claim-precluded by 
Twin Lakes’ prior claims, or alternatively, Middlesex was issue-precluded on its Due 
Process, Takings, and unconstitutional conditions claims, and its remaining claims failed 
on the merits.  Middlesex Water Co. v. Pa. Pub. Util. Comm’n, No. 23-CV-483, 2024 WL 
199558, at *3–6 (M.D. Pa. Jan. 18, 2024). 
On appeal, Middlesex challenges the District Court’s dismissal of its complaint in 
its entirety on claim preclusion grounds, and its alternative dismissal of its complaint on 
combined issue preclusion and merits grounds.  
II.1 
 
1 The District Court had jurisdiction under 28 U.S.C. § 1331.  We have appellate 
jurisdiction under 28 U.S.C. § 1291.   
Aqua argues the court lacked subject-matter jurisdiction over Middlesex’s claims 
under the Rooker-Feldman doctrine.  Vuyanich v. Smithton Borough, 5 F.4th 379, 384 (3d 
Cir. 2021).  The Rooker-Feldman doctrine occupies “narrow ground” and “is confined to 
cases of the kind from which [it] acquired its name: cases brought by state-court losers 
complaining of injuries caused by state-court judgments rendered before the district court 
proceedings commenced and inviting district court review and rejection of those 
judgments.”  Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).  
Application of the doctrine requires four conditions: (1) the federal plaintiff lost in state 
court; (2) the plaintiff’s injury is caused by the state court judgment; (3) that judgment was 
rendered before the commencement of the federal action; and (4) the plaintiff asks the 
district court to review and reject the state judgment.  See Vuyanich, 5 F.4th at 385.  Rooker-
Feldman does not apply here because Middlesex’s injury was not caused by the state court 
judgment.  To strip us of jurisdiction, “the plaintiff’s injury must actually be produced by 
a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.”  
Vuyanich, 5 F.4th at 385 (quotation omitted).  Here, Middlesex’s asserted injury—the 
escrow condition—spawns from PUC’s order, not the Commonwealth Court judgment.  
That alone is sufficient not to apply Rooker-Feldman.  See Great W. Mining & Min. Co. v. 
Fox Rothschild LLP, 615 F.3d 159, 173 (3d Cir. 2010) (“The fact that Defendants’ actions, 
rather than the state-court judgments, were the source of [Plaintiff’s] injuries is alone 
 
 
 
5 
 
We review the District Court’s grant of a motion to dismiss de novo and accept the 
facts alleged in the complaint and reasonable inferences drawn from them as true.  Keystone 
Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011).  
To trigger claim preclusion in Pennsylvania,2 the “two actions must share an identity 
of the (1) thing sued on; (2) cause of action; (3) persons and parties to the action; and (4) 
quality or capacity of the parties suing or sued.”  Gregory v. Chehi, 843 F.2d 111, 116 (3d 
Cir. 1988).  Middlesex concedes (1) and (4), but contests (2) and (3). 
III. 
Middlesex argues the causes of action are not identical.  But neither the new 
arguments they raise nor the new remedies they seek make their claims a different cause 
of action than their claims in the Twin Lakes case.  Pennsylvania’s cause of action test is 
transactional, and both actions concerned the escrow condition—the same transaction.  See 
Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir. 2006) 
(“Turner's present action and the prior state-court litigation originated from the same cause 
of action, inasmuch as they are based on the same allegedly wrongful acts. . . . 
[A]djudicating Turner's new theory of recovery would require the parties to ‘rehash’ the 
 
sufficient to make Rooker–Feldman inapplicable here.”).  As such, the District Court 
properly exercised subject-matter jurisdiction over Middlesex’s claims. 
2 We apply Pennsylvania’s claim preclusion law in determining the preclusive effect 
of a Pennsylvania proceeding.  Marrese v. Am. Acad. Orthopaedic Surgeons, 470 U.S. 373, 
380 (1985) (“[The federal full faith and credit] statute directs a federal court to refer to the 
preclusion law of the State in which judgment was rendered.”).  We must “rule as [we] 
predict the state supreme court would.”  Gov’t Emps. Ins. Co. v. Mount Prospect 
Chiropractic Ctr., P.A., 98 F.4th 463, 467 (3d Cir. 2024) (citation omitted).  
 
 
 
6 
 
facts and legal arguments raised before the court of common pleas.”); Middlesex Water 
Co., 2024 WL 199558, at *3. 
Both in the PUC proceeding and in the Commonwealth Court, Twin Lakes raised 
constitutional arguments concerning the escrow condition imposed on Middlesex.  And 
both tribunals had the opportunity to consider the constitutionality of the condition and 
grant relief by invalidating it.  Accordingly, “because . . . there was no jurisdictional 
obstacle to the [constitutional] claims being litigated in state court” and the “underlying 
events giving rise to the various legal claims are identical,” we may find Middlesex’s 
claims to be the same “cause of action” as Twin Lakes’ claims notwithstanding the 
availability of particular remedies.  Turner, 449 F.3d at 549, 550 (citation omitted). 
IV. 
The next issue is (3)—whether Middlesex and Twin Lakes are in privity.  We 
conclude they are.  Pennsylvania law is clear that claim preclusion “should not be defeated 
by minor differences of form, parties, or allegations, when these are contrived only to 
obscure the real purpose,” namely “a second trial on the same cause between the same 
parties.”  Stevenson v. Silverman, 208 A.2d 786, 788 (Pa. 1965) (citation omitted) (internal 
quotation marks omitted).  Pennsylvania law recognizes that privity between two parties 
may give rise to claim preclusion.  See Sec’y U.S. Dep’t of Lab. v. Kwasny, 853 F.3d 87, 
94-95 (3d Cir. 2017) (“Under Pennsylvania law, claim preclusion requires privity between 
the parties . . . . [P]rivity is a ‘mutual or successive relationship[] to the same right of 
property, or such an identification of interest of one person with another as to represent the 
same legal right.’” (citations omitted)); Stevenson, 208 A.2d at 788 (“The doctrine of res 
 
 
 
7 
 
judicata applies to and is binding, not only on actual parties to the litigation, but also to 
those who are in privity with them. A final valid judgment upon the merits by a court of 
competent jurisdiction bars any future suit between the same parties or their privies on the 
same cause of action.”); Turner, 449 F.3d at 548 n.11 (3d Cir. 2006) (“Indeed, 
Pennsylvania courts apply the doctrine of res judicata to different parties where one is 
vicariously responsible for the conduct of another.” (citations omitted)). 
We find, within the four corners of Middlesex’s complaint, any differences between 
Middlesex and Twin Lakes are sufficiently minor that a Pennsylvania court would find 
Middlesex claim-precluded.  Middlesex’s complaint establishes that they are the “sole 
source of financial and operational support to Twin Lakes,” App. 42 (emphasis added), 
and Middlesex operated Twin Lakes “as a wholly-owned . . . subsidiary,” App. 37.  Indeed, 
in its complaint, Middlesex concedes its officers were also officers of Twin Lakes and 
appeared as witnesses in the § 529 proceeding—Middlesex disputes only the capacity in 
which they appeared.  See App. 55 (“PUC noted that ‘the appearance in this Section 529 
proceeding as witnesses by corporate officers of Middlesex, may itself constitute consent 
to Commission jurisdiction[,]’ . . .  [but] PUC failed to acknowledge that those witnesses 
did not appear in their capacity as corporate officers of Middlesex. Instead, they appeared 
in their capacity as corporate officers of Twin Lakes.” (citation omitted)).  Accordingly, 
Middlesex’s assertions that affirming will mean “Middlesex will never have an opportunity 
to be heard with respect to the escrow requirement” and “received no notice”—particularly 
given Twin Lakes contested the escrow requirement at prior junctures—are at odds with 
the facts alleged in the complaint, which evince a particularly close corporate relationship 
 
 
 
8 
 
between Middlesex and Twin Lakes and the personal involvement of Middlesex officers 
in the state proceedings.  Appellant’s Br. 17–18.   
Given the degree of privity between Middlesex and Twin Lakes evident on the face 
of Middlesex’s complaint, we believe a Pennsylvania court would find the difference in 
parties sufficiently minor under Stevenson because Middlesex’s interests are identified 
with Twin Lakes’.  And it is clear Twin Lakes “represent[ed] the same legal right” as 
Middlesex asserts, Kwasny, 853 F.3d at 95 (citation omitted) (internal quotation marks 
omitted)—that is, the right of Middlesex to be free from the PUC escrow condition, because 
Twin Lakes raised constitutional claims on Middlesex’s behalf in the prior proceedings.   
While not binding, precedent concerning the law of other states (including from this 
Circuit) also instructs that a sufficiently close relationship between a parent and wholly 
owned subsidiary, with other indicia, can establish privity.3  See, e.g., Lubrizol Corp. v. 
Exxon Corp., 929 F.2d 960, 966 (3d Cir. 1991) (“For purposes of claim preclusion in this 
case [applying New Jersey law], there is a close and significant relationship between Exxon 
and Exxon Research. Exxon Research is a wholly owned affiliate of Exxon, was a 
defendant in the initial . . . action, and was a signatory to the Settlement Agreement.” 
(citation omitted)); NTCH-WA, Inc. v. ZTE Corp., 921 F.3d 1175, 1183 (9th Cir. 2019) 
 
3 There is also support for this view in secondary sources.  See, e.g., 46 Am. Jur. 2d 
Judgments § 597 (“[S]ome courts have found that privity exists between a parent 
corporation and its wholly owned subsidiaries . . . . Preclusion is particularly appropriate 
if a parent controlled the litigation against a subsidiary, or brought or defended an action 
for the benefit of the subsidiary. Other courts have found that . . . participation or control . 
. . is needed.” (citations omitted)). 
 
 
 
9 
 
(“[P]rivity exists between ZTE Corp. and ZTE USA, ZTE Corp.’s wholly-owned U.S. 
subsidiary . . . Florida treats parent corporations and subsidiaries as privies for purposes of 
preclusion.” (citations omitted)); Doe v. Urohealth Sys., Inc., 216 F.3d 157, 162 (1st Cir. 
2000) (“We do not suggest that the parent-subsidiary relationship automatically establishes 
privity, but given the relationship of the companies in this case coupled with their joint 
involvement . . . we have little doubt that a Rhode Island court would treat a merits 
judgment in favor of Urohealth as resolving an identical claim against its wholly owned 
subsidiary.” (emphasis added)).  These cases rest on weaker corporate relationships than 
what Middlesex’s complaint makes clear about the relationship between Middlesex and 
Twin Lakes—none note an identity of officers between parent and subsidiary with officers 
of both corporations participating at the first proceeding, for example, or complete financial 
control of the subsidiary by the parent.  We need not hold every subsidiary is in privity 
with a parent to note the degree of privity presented by the circumstances here.  
The District Court reached the same conclusion by looking beyond the complaint, 
finding the record from the Commonwealth Court proceedings over the propriety of the 
escrow condition clearly established any “differences of form [or] parties” between 
Middlesex and Twin Lakes are “minor,” Stevenson, 208 A.2d at 788, and that Middlesex 
and Twin Lakes are in privity.  Middlesex Water Co., 2024 WL 199558, at *3–4; see Twin 
Lakes Utils., Inc., 281 A.3d at 390 (“There is little doubt that Middlesex and Twin Lakes 
are closely related, sharing many of the same corporate officers, the same general counsel, 
and the same business address. Middlesex is the sole source of capital[,] . . . . provides the 
services to Twin Lakes’ customers[,] . . . . [and] makes the managerial decisions for Twin 
 
 
 
10 
 
Lakes.”); id. at 396 (“Middlesex effectively initiated the instant Section 529 proceeding.”).  
The administrative record supports the same conclusion.  See App. 122 (“[T]he corporate 
officers, witnesses, and even legal counsel representing Twin Lakes, are the same corporate 
officers, witnesses, and legal counsel for Middlesex.”).  These findings further prove 
privity between Middlesex and Twin Lakes, particularly considering our above analysis of 
the complaint, and indicate Middlesex directed the prior proceeding.   
Middlesex argues the court could not take notice of findings of fact in the 
Commonwealth Court as early as the motion to dismiss, though it could take notice of the 
prior case itself.  Appellant’s Br. 23 (arguing “[o]n a motion to dismiss, Courts may not 
take judicial notice of another court’s opinion ‘for the truth of the facts recited therein,’” 
and could only properly do so on summary judgment (citations omitted)).  However, we 
previously held “[u]nder either motion” (i.e., a motion to dismiss or motion for summary 
judgment), district courts “ha[ve] to examine the record of the prior . . . proceeding” and 
are “entitled to take judicial notice” thereof “in rendering [their] decision[s], regardless of 
the motion employed.”  Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 
416 n.3 (3d Cir. 1988).  In any case, we can and will affirm on the basis of Middlesex’s 
complaint without opening that record. 
Because Middlesex’s claims must be dismissed as res judicata, we need not reach 
issue preclusion or the merits of Middlesex’s constitutional challenges to the escrow 
condition to affirm.  
V. 
For the foregoing reasons, we will affirm. 


Middlesex Water Company v. Pennsylvania Public Utility Commission

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-13-2025 
Marina Livshitz v. Designer Brands Inc 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Marina Livshitz v. Designer Brands Inc" (2025). 2025 Decisions. 34. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/34 
This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 23-3082 
_____________ 
 
MARINA LIVSHITZ; MIKHAIL LIVSHITZ, W/H, 
Appellants 
v. 
 
DESIGNER BRANDS, INC; DSW, INC 
_____________ 
 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania  
(D.C. No. 2:22-cv-03355) 
District Judge: Hon. John F. Murphy 
_____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
December 3, 2024 
_____________ 
 
Before: SHWARTZ, MATEY, and McKEE, Circuit Judges. 
 
(Filed: January 13, 2025) 
_____________ 
 
OPINION* 
_____________ 
 
 
 
 
 
*This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 
does not constitute binding precedent. 
2 
 
MATEY, Circuit Judge. 
 Marina Livshitz went shopping at a shoe store where she alleges that she slipped 
and fell on a clear and odorless substance on the restroom floor. She sued Designer Shoe 
Warehouse and its parent company, Designer Brands, Inc. (collectively, “DSW”), for 
negligence in Pennsylvania’s Court of Common Pleas of Philadelphia County.1 DSW 
removed the case and the District Court granted DSW’s motion for summary judgment 
because Livshitz failed to identify evidence that DSW had constructive notice of the 
substance allegedly on the restroom floor.2 We see no error in that decision. 
Premises liability under Pennsylvania law3 requires evidence that the defendant 
“had a hand in creating the harmful condition” or “had actual or constructive notice of 
such condition.” Est. of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 
1997). A business has “constructive notice of a dangerous condition” when it “should 
have known” of the condition because it was “apparent upon reasonable inspection.” 
 
1 Livshitz’s husband also sued for loss of consortium. The District Court did not 
rule on Mr. Livshitz’s claim, and the parties later stipulated to the final judgment. No 
party addresses the loss of consortium claim on appeal, so we will decline to address it as 
well. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145–46 
(3d Cir. 2017). 
2 The District Court had jurisdiction under 28 U.S.C. § 1332 and we have 
jurisdiction under 28 U.S.C. § 1291. Summary judgment is appropriate only if “‘there is 
no genuine dispute as to any material fact’ and, viewing the facts in the light most 
favorable to [Livshitz], [DSW] ‘is entitled to judgment as a matter of law.’” Shuker v. 
Smith & Nephew, PLC, 885 F.3d 760, 770 (3d Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).  
3 The parties agree that Pennsylvania law governs this case. See SodexoMAGIC, 
LLC v. Drexel Univ., 24 F.4th 183, 204 (3d Cir. 2022). 
3 
 
Commonwealth, Dep’t of Transp. v. Patton, 686 A.2d 1302, 1305 (Pa. 1997).4 Livshitz 
argues that summary judgment was improper because there is a disputed question of 
material fact as to whether DSW acted reasonably when it failed to discover the allegedly 
dangerous condition on the floor. But even if such a question of fact exists, it is not 
material.  
“A disputed fact is ‘material’ if it would affect the outcome of the suit as 
determined by the substantive law.” Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 
2011) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). 
Here, the dispute over whether DSW exercised reasonable care is not material because 
Livshitz failed to identify evidence that DSW had a duty to protect her from the alleged 
hazard in the restroom. See Neve v. Insalaco’s, 771 A.2d 786, 790–91 (Pa. Super. Ct. 
2001).5 In other words, because Livshitz failed to produce or identify evidence that “the 
dangerous condition [was] apparent upon reasonable inspection,” Gurnari v. Luzerne 
Cnty. Hous. Auth., 911 A.2d 236, 239 (Pa. Commw. Ct. 2006), the care that DSW 
exercised to discover it is irrelevant.6 See McDevitt v. Terminal Warehouse Co., 450 A.2d 
 
4 See David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 233–34 (3d Cir. 
1984) (“Slip and fall cases involving foreign substances on . . . floors . . . present the 
plaintiffs with a difficult task of proof.”). 
5 See also Craig v. Franklin Mills Assocs., L.P., 555 F. Supp. 2d 547, 550 (E.D. 
Pa. 2008) (“The duration of the hazard is important because if a hazard only existed for a 
very short period of time before causing any injury, then the possessor of the land, even 
‘by the exercise of reasonable care,’ would not discover the hazard, and thus would owe 
no duty to protect invitees from such a hazard.” (quoting Restatement (Second) of Torts 
§ 343 (1965))).   
6 Livshitz argues that a plaintiff can defeat summary judgment without evidence 
supporting constructive notice, but the “requirement of notice is well established in the 
common law” of Pennsylvania. Patton, 686 A.2d at 1305. Livshitz relies on Rodriguez v. 
4 
 
991, 999 n.6 (Pa. Super. Ct. 1982) (“Actual or constructive notice of a defect is a 
prerequisite to holding a possessor of land liable for bodily injury sustained by a business 
invitee.”).7 
* * *   
 For these reasons, we will affirm the District Court’s order granting summary 
judgment for DSW. 
 
Kravco Simon Co., which relied on the Restatement (Second) of Torts to deny summary 
judgment notwithstanding a lack of evidence of constructive notice. 111 A.3d 1191, 
1196–97 (Pa. Super. Ct. 2015) (citing Restatement (Second) of Torts § 343 cmt. b 
(1965)). But the Pennsylvania Supreme Court has cautioned that “if any relevant section 
of the Restatement (Second) of Torts does not incorporate the requirement” of notice, it 
“will interpret it as requiring notice, if possible.” Patton, 686 A.2d at 1305. And when 
such an interpretation is not possible, Pennsylvania courts must “conclude that” the 
Restatement provision “does not comport with Pennsylvania law.” Id. 
7 Livshitz also argues that the District Court “should have inferred spoliation” and 
denied Defendants’ motion for summary judgment because DSW “failed to produce 
copies of . . . cleaning checklists” and “failed to preserve and produce any video 
surveillance footage from the shoe store.” Opening Br. at 17, 19. But Livshitz’s 
spoliation argument fails to create an issue of material fact because, even assuming the 
purportedly spoliated evidence had been produced, a jury could only speculate as to how 
long the substance might have been on the restroom floor. That is not permissible under 
Pennsylvania law. See Lanni v. Pennsylvania R.R. Co., 88 A.2d 887, 889 (Pa. 1952).  
 


Marina Livshitz v. Designer Brands Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-14-2025 
Peter Seamon v. Governor Joshua Shapiro 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Peter Seamon v. Governor Joshua Shapiro" (2025). 2025 Decisions. 41. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/41 
This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-1451 
___________ 
 
PETER R. SEAMON, 
   Appellant 
 
v. 
 
GOVERNOR JOSHUA D. SHAPIRO;  
NANCY WALKER, Secretary of Labor & Industry;  
PENNSYLVANIA DEPARTMENT OF LABOR & INDUSTRY;  
MICHELLE A. HENRY, Attorney General;  
JUDGE PATRICK J. CUMMINGS, individually and in his official capacity;  
ALFONES FRIONI, individually and in his official capacity;  
THOMAS P. CUMMINGS, JR., individually and in his official capacity;  
JUDGE JOSEPH GRADY, individually and in his official capacity;  
JULIA K. HEARTHWAY, individually and in her official capacity;  
ERICK PREPUTNICK, individually and in his official capacity;  
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN;  
JAMES E. POCIUS; ROSS CORRAZZA; JENNIFER CALLAHAN;  
PENN MILLERS INSURANCE CO, also known as Chubb Agribusiness;  
MARCY MARRA; GENEX SERVICES INC, formerly and t/a/d/b/a Intracorp; 
GERALD J. BUTLER; ELMER KENNETH ACKER;  
PATRICK J. MCLAINE; MARGARET MCLAINE, also known as Peggy 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 3:23-cv-00543) 
District Judge:  Honorable Julia K. Munley 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
January 13, 2025 
Before:  SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
2 
 
 
(Opinion filed: January 14, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
Pro se appellant Peter R. Seamon appeals from the District Court’s dismissal of his 
civil rights complaint. We will affirm the District Court’s judgment. 
I.  
Seamon’s operative amended complaint alleges that more than 20 defendants have 
conspired together for decades to deprive him of adequate workers’ compensation. In 
July 1996, the Pennsylvania Workers’ Compensation Office of Adjudication awarded 
Seamon workers’ compensation for injuries that he sustained while working for Acker 
Associates, Inc.  
Much of the subsequent litigation history is unclear in the amended complaint. 
Defendant Workers’ Compensation Judge Patrick Cummings presided over Seamon’s 
case beginning in 2006.  Sometime in 2020, Seamon learned that Judge Cummings might 
have had personal ties with Acker Associates and one of its principals, Defendant Patrick 
McLaine.  Armed with conflict-of-interest allegations against Judge Cummings, Seamon 
filed a petition to modify or reinstate his workers’ compensation benefits in February 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
3 
 
2021. Seamon’s 2021 petition was assigned to Defendant Workers’ Compensation Judge 
Joseph Grady. Judge Grady allegedly deleted many of Seamon’s electronically filed 
exhibits hours before a telephonic hearing was held on March 29, 2021, but it is unclear 
what impact this had on Judge Grady’s review of Seamon’s petition or on Seamon’s 
efforts to appeal from that decision. Over Seamon’s objections, Judge Grady determined 
at that hearing that Seamon’s petition was untimely filed.   
Meanwhile, throughout the litigation, Seamon sought help from various state 
employees who allegedly did not investigate his claims of workers’ compensation fraud 
or who were not helpful enough in his Seamon’s efforts to access or correct the court’s 
certified records. Seamon additionally asserted claims against non-state actors, including 
opposing counsel, his former employers’ insurer, and investigators or agents hired by the 
insurer. 
Seamon filed his initial federal complaint on March 29, 2023, and he filed the 
operative amended complaint in January 2024. The amended complaint claimed that the 
defendants violated 42 U.S.C. §§ 1983 and 1985 by denying his Fourteenth Amendment 
right to due process and engaging in a civil conspiracy.  It also raised claims of “honest 
services fraud,” and supplemental claims under Pennsylvania state tort law. See id. at ¶¶ 
90-92. 
A Magistrate Judge screened Seamon’s amended complaint pursuant to 28 U.S.C. 
§ 1915(e)(2)(B) and recommended that it be dismissed with prejudice.  Seamon did not 
file objections to the Magistrate Judge’s report, but he did move to recuse the assigned 
4 
 
District Judge based on alleged conflicts of interest. The District Court denied Seamon’s 
recusal motion, adopted the Magistrate Judge’s report and recommendation, and 
dismissed Seamon’s complaint with prejudice.  Seamon timely appealed, and he has 
presented briefing.  
II.  
We have appellate jurisdiction under 28 U.S.C. § 1291, and we exercise plenary 
review over a district court’s sua sponte dismissal of a complaint under 28 U.S.C. § 
1915(e)(2). Dooley v. Wetzel, 957 F.3d 366, 373 & n.3 (3d Cir. 2020).1 We review a 
district court’s denial of a motion to recuse herself for abuse of discretion. See Azubuko 
v. Royal, 443 F.3d 302, 303 (3d Cir. 2006). We may affirm the District Court’s judgment 
on any basis supported by the record. See Hildebrand v. Allegheny County, 757 F.3d 99, 
104 (3d Cir. 2014). 
III. 
Seamon argues on appeal that the District Judge erred in denying his recusal 
motion.  He alleged that the Honorable Julia K. Munley had personal and professional 
connections to various defendants.  The District Court’s role in this case was very 
limited: The District Judge appropriately conducted a narrow review of the Magistrate 
 
1 Seamon’s failure to object to the Magistrate Judge’s report and recommendations could 
limit our review to a review for plain error. See EEOC v. City of Long Branch, 866 F.3d 
93, 100 (3d Cir. 2017). However, Seamon was not adequately notified that his failure to 
object could forfeit review of his issues on appeal, so we will apply our regular de novo 
standard of review. Cf. ECF No. 11 at 33-34; see also Leyva v. Williams, 504 F.3d 357, 
363-64 (3d Cir. 2007); Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983).  
5 
 
Judge’s report and recommendation for clear error or manifest injustice, because Seamon 
did not file objections to the report.  We need not consider whether the District Judge 
erred in denying Seamon’s recusal motion, because any possible error will be cured by 
our plenary review. See supra note 1; Bhatla v. U.S. Capital Corp., 990 F.2d 780, 788 
n.10 (3d Cir. 1993). 
IV. 
A.  
Seamon’s pleadings primarily focus on a sweeping procedural due process claim. 
We need not decide whether the District Court erred in determining that his claim was 
barred by the statute of limitations against most defendants,2 because Seamon has failed 
to state a procedural due process claim. In analyzing whether a plaintiff has plausibly 
alleged a procedural due process violation, the court must first “determine[] whether the 
plaintiff asserts an interest protected by the Fourteenth Amendment,” and if so, it must 
consider “whether the procedures provided to the plaintiff afforded that individual due 
process of law.” See Rechenski v. Williams, 622 F.3d 315, 325 (3d Cir. 2010). Seamon 
 
2 It might not be clear from the complaint when Seamon’s procedural due process claim 
accrued. See Zinermon v. Burch, 494 U.S. 113, 126 (1990) (“The constitutional violation 
actionable [in a procedural due process claim] under § 1983 is not complete when the 
deprivation occurs; it is not complete unless and until the State fails to provide due 
process.”); Reed v. Goertz, 598 U.S. 230, 237 (2023) (“[T]he statute of limitations for a § 
1983 procedural due process claim begins to run when the state litigation ends.”); cf. 
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (implying that it is inappropriate to 
dismiss a claim based on the statute of limitations at the screening stage if it is not 
apparent on the face of the complaint that the claim is time-barred). 
6 
 
could have a property interest in his workers’ compensation award that is protected under 
the Fourteenth Amendment. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 
60-61 (1999). But he must plausibly allege that he is entitled to that benefit, and he did 
not do so here.  
Despite Seamon’s considerable efforts to describe a sweeping conspiracy to 
deprive him of workers’ compensation, he does not explain why the termination of his 
workers’ compensation was unlawful. State court records show that Worker’s 
Compensation Judge Peleak terminated Seamon’s workers’ compensation in late 2005 
because Seamon did not report for a court-ordered independent medical examination 
(IME). See Seamon v. W.C.A.B. (Acker Associates, Inc.), No. 2345 C.D. 2010, 2011 WL 
10858440, at *4 (Pa. Commw. Ct. Sept. 22, 2011). Judge Cummings later denied 
Seamon’s petition to reinstate his benefits, observing that Seamon had continued to 
refuse to attend an IME. See Seamon v. W.C.A.B. (Acker Associates, Inc.), No. 2375 
C.D. 2009, 2009 WL 9104907 (Pa. Cmmw. Ct. July 20, 2009). In separate opinions 
affirming both Judge Peleak’s and Judge Cumming’s decisions, the Pennsylvania 
Commonwealth Court emphasized that all Seamon needed to do to reinstate his benefits 
was attend an IME. See Seamon, 2009 WL 9104907 at *4; Seamon, 2011 WL 10858440, 
at *4. Seamon’s amended complaint does not address any of this—his amended 
complaint does not mention Judge Peleak or offer any basis for discrediting Judge 
7 
 
Peleak’s initial decision to terminate Seamon’s benefits.3 Consequently, Seamon has not 
plausibly alleged that he remains entitled to a benefit that was terminated 18 years ago 
due to his own noncompliance with court orders.  
Furthermore, Seamon has not plausibly alleged that he was not afforded adequate 
procedural safeguards to protect his interest in his workers’ compensation. Even if the 
Workers’ Compensation Court and Appeals Board proceedings involved decisionmakers 
who were biased against Seamon, the Commonwealth Court’s thorough appellate review 
of Seamon’s claims reflects that he was “provide[d] a neutral tribunal at the post-
termination stage that [could] resolve charges of improper motives.” See McDaniels v. 
Flick, 59 F.3d 446, 458-61 (3d Cir. 1995).4 
The implausibility of Seamon’s procedural due process claim is fatal to all of 
Seamon’s allegations against Workers’ Compensation Judges and Workers’ 
 
3 According to the Commonwealth Court, Seamon conceded that he had not attended an 
IME. See Seamon, 2009 WL 9104907 at *4. 
 
4 It is not clear whether Seamon appealed to the Commonwealth Court after Judge Grady 
dismissed his petition, but if he did not avail himself of that remedy, that is fatal to his 
procedural due process claim involving the adjudication of his 2021 petition. See Alvin v. 
Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).  
 
8 
 
Compensation Appeal Board members,5 and Department of Labor defendants,6 as well as 
any allegations involving opposing counsels’ litigation activity.7 Since Seamon has not 
plausibly alleged that he is entitled to his workers’ compensation and that he was not 
afforded adequate procedural safeguards to protect that interest, it is unnecessary to 
consider whether Seamon has plausibly alleged that the defendants conspired to deprive 
him of workers’ compensation. 
B. 
 
5 In addition to Judge Grady and Judge Cummings, Seamon sued two defendants who 
might have handled his appeal: Workers’ Compensation Appeal Board Commissioner 
Thomas P. Cummings, Jr., and Workers’ Compensation Appeal Board Chairman Alfonse 
Frioni, Jr. Based on Seamon’s allegations, all four defendants were acting in their judicial 
capacities to adjudicate Seamon’s workers’ compensation litigation. Therefore, all four 
defendants are entitled to an absolute judicial immunity, even if their actions or decisions 
were allegedly motivated by ill will against Seamon or personal connections to Seamon’s 
former employers. See Figueroa v. Blackburn, 208 F.3d 435, 443 (3d Cir. 2000).  
 
6 Seamon has alleged that in 2008, Eric Preputnick, an attorney working for the 
Pennsylvania Department of Labor or the Governor’s Office of Chief Counsel, did not 
effectively assist him in obtaining a copy of the certified record from his workers’ 
compensation litigation.  Seamon also listed Nancy Walker (the Secretary of Labor and 
Industry), and the Pennsylvania Department of Labor and Industry as defendants. In 
addition to the above reasoning, Seamon’s claims against Walker and the Department fail 
because (1) Seamon has not adequately alleged any personal involvement of or 
supervisory liability theory against Secretary Walker, and (2) the Pennsylvania 
Department of Labor and Industry is an arm of the state that is entitled to sovereign 
immunity under the Eleventh Amendment and is not subject to suit under § 1983. See 
Karns v. Shanahan, 879 F.3d 504, 519 (3d Cir. 2018).  
 
7 Specifically, this is fatal to Seamon’s allegations that (1) Jennifer Callahan conspired 
with court actors to cease email communications after litigation ended, and (2) James 
Pocius and Ross Corrazza (or Carrozza) conspired with court actors to incorrectly 
reconstruct the certified record.   
9 
 
The District Court did not err in dismissing Seamon’s remaining claims. First, 
Seamon’s claim that defendants Governor Josh Shapiro and First Assistant Attorney 
general Juila K. Hearthway refused to investigate or prosecute his complaints of fraud or 
criminal activity is not cognizable as a § 1983 claim.  Absent exceptions that do not apply 
here, a private citizen generally has no due process right to the enforcement of state 
criminal laws. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005); Linda 
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (observing that a private citizen has no 
“judicially cognizable interest in the prosecution or nonprosecution of another”).  
Second, Seamon has no private right of action to pursue violations of the criminal 
statutes that penalize honest services fraud, 18 U.S.C. §§ 1341 & 1346.8 See Alexander v. 
Sandoval, 532 U.S. 275, 286 (2001) (“[P]rivate rights of action to enforce federal law 
must be created by Congress”); Wisdom v. First Midwest Bank, 167 F.3d 402, 407-08 
(8th Cir. 1999) (collecting cases and holding that § 1341 did not establish a private right 
of action).  
Third, Seamon’s vaguely pleaded civil conspiracy claims, which seem to serve as 
a catch-all for any remaining allegations, fail against all defendants not mentioned above. 
Seamon has not plausibly alleged a civil conspiracy claim under 42 U.S.C. § 1985(3), 
because he does not allege that any defendant was “motivated by a racial or class based 
 
8 Seamon did not cite a statute supporting his honest services fraud claim, but the 
Magistrate Judge appropriately construed it as a claim referring to the federal crime of 
honest services fraud, which is codified at 18 U.S.C. § 1346.  
10 
 
discriminatory animus” to deprive him of equal protection of the laws. See Lake v. 
Arnold, 112 F.3d 682, 685 (3d Cir. 1997). Seamon has not plausibly alleged a § 1983 
civil conspiracy claim that is distinct from any of the claims addressed above, because 
none of the remaining allegations imply that any of the private-actor defendants 
“willfully participate[d] in a joint conspiracy with state officials to deprive [Seamon] of a 
constitutional right.” See Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998). 
Specifically, Seamon has not alleged that Penn Millers Insurance Company, Marcy 
Marra, Genex Services, LLC, Gerald Butler, Elmer Kenneth Acker, Patrick McLaine, and 
Margaret McLaine “acted with the help of or in concert with state officials” or carried out 
any state actor’s wishes by surveilling Seamon, falsifying evidence, or presenting false 
testimony. See McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 
F.3d 519, 524 (3d Cir. 1994). 
Finally, because Seamon did not plausibly allege any federal claims, there was no 
need for the District Court to exercise supplemental jurisdiction over his state tort claims.  
V. 
 Consequently, we will affirm the District Court’s judgment. 


Peter Seamon v. Governor Joshua Shapiro

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-15-2025 
USA v. LaQuan Williams 
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"USA v. LaQuan Williams" (2025). 2025 Decisions. 47. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/47 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
No. 23-2980 
______________ 
UNITED STATES OF AMERICA 
 
v. 
 
LAQUAN WILLIAMS, 
                         Appellant 
______________ 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Criminal No. 2:21-cr-00384-001) 
District Judge:  Honorable William S. Stickman, IV 
______________ 
Submitted Under Third Circuit L.A.R. 34.1(a) 
November 15, 2024 
 
Before: RESTREPO, MONTGOMERY-REEVES, and AMBRO, Circuit Judges. 
 
(Opinion filed: January 15, 2025) 
______________ 
OPINION∗ 
______________ 
 
MONTGOMERY-REEVES, Circuit Judge. 
LaQuan Williams appeals from his judgment of conviction, arguing that the 
District Court erred in denying his motion to suppress certain evidence.  According to 
 
∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
Williams, the evidence resulted from an illegal seizure in violation of the Fourth 
Amendment.  We disagree and will affirm the District Court’s judgment.   
I. BACKGROUND 
In July 2020, a Pennsylvania State Police Trooper was on routine patrol alone in 
an area where there had been a high volume of drug and other criminal activity in recent 
weeks.  The Trooper pulled into a hotel’s parking lot, checked the back area, and returned 
to the front.  As the Trooper was leaving the lot, the Trooper observed a parked car with 
the driver’s side door open.  The Trooper stopped his patrol vehicle and rolled down the 
driver’s window.  The car’s driver, Williams, then began to drive towards the Trooper’s 
patrol vehicle.  These events happened within seconds of each other.   
As Williams’s car moved forward, the Trooper’s headlights illuminated 
Williams’s windshield, and the Trooper observed a roughly 12-inch-high by 12-inch-
wide crack on the windshield.  The Trooper did not activate his police lights or siren, 
display a badge or weapon, speak to Williams, or direct him to stop.  The Trooper’s hand 
was sticking out of his window, but not in a manner directing Williams to stop.  The 
Trooper’s patrol vehicle was not blocking Williams’s path.  Williams stopped parallel to 
and approximately four feet from the Trooper’s patrol vehicle and rolled down his 
window.  The Trooper questioned Williams about the cracked windshield.  When 
Williams responded, the Trooper observed Williams’s bloodshot, glassy eyes and 
mumbled response.     
The Trooper got out of his vehicle to hear Williams better and immediately 
detected the smell of marijuana coming from Williams’s car.  The Trooper also noticed 
3 
that Williams’s pupils were dilated, his hands were shaking, and he was taking short, 
slow breaths.  The Trooper explained that it was a violation to have a cracked windshield 
within the driver’s eyesight and asked for Williams’s license, registration, and insurance.  
Williams responded by giving the Trooper a bag of marijuana.  The Trooper then asked 
Williams to step out of the vehicle.  The entire exchange lasted less than 90 seconds.   
Shortly after this exchange, the Trooper called for backup.  When backup arrived, 
officers searched Williams’s vehicle and discovered 459 bags of fentanyl.  Williams was 
arrested and charged with possession with intent to distribute under 
21 U.S.C. §§ 841(a)(1), (b)(1)(C).  Williams filed a Motion to Suppress Physical 
Evidence and Statements (the “Motion to Suppress”), seeking to exclude “[a]ll of the 
contraband recovered in [Williams’s] case and all statements made by [Williams because 
they] were the direct result of [an] initial unlawful detention . . . .”  App 39.  The District 
Court held a suppression hearing and considered post-hearing briefs from the parties.  
The District Court issued a Memorandum Opinion and Order denying Williams’s Motion 
to Suppress because “[the Trooper’s] initial contact with Williams was a mere encounter 
that did not implicate the Fourth Amendment.”  App. 16.   
Williams subsequently pleaded guilty, and this appeal followed.   
  
4 
II. DISCUSSION1 
In this appeal we consider one issue: whether the District Court erred in denying 
Williams’s Motion to Suppress.  “We review the District Court’s denial of a motion to 
suppress for clear error as to the underlying factual findings and exercise plenary review 
over questions of law.”  United States v. Amos, 88 F.4th 446, 451 (3d Cir. 2023).  
Williams challenges both the District Court’s factual finding that the Trooper did not 
signal Williams to stop and its legal conclusions that the initial interaction was a mere 
encounter and that there was a reasonable suspicion when Williams was eventually 
seized.  We address each argument in turn.   
A. The District Court Did Not Err by Finding the Officer Did Not Gesture 
Williams to Stop 
First, Williams contends that the District Court incorrectly concluded that the 
Trooper’s hand out the window did not direct Williams to stop his vehicle.  Rather, 
Williams argues this was a gesture intended to command him to stop his vehicle and, 
thus, he was seized.   
When analyzing factual determinations made after accepting evidence in a motion 
to suppress hearing, we apply the clearly erroneous standard of review.  United States v. 
Harrison, 689 F.3d 301, 306 (3d Cir. 2012).  A finding is ‘“clearly erroneous” when, 
although there is evidence to support it, the reviewing court on the entire evidence is left 
with the definite and firm conviction that a mistake has been committed.’” United States 
 
1  The District Court had jurisdiction under 18 U.S.C. § 3231.  We have jurisdiction under 
28 U.S.C. § 1291.   
5 
v. Pelullo, 173 F.3d 131, 135 (3d Cir. 1999) (quoting United States v. United States 
Gypsum Co., 333 U.S. 364, 395 (1948)).  “Accordingly, ‘if the district court’s account of 
the evidence is plausible in light of the record viewed in its entirety,’ we will not reverse 
it even if, as the trier of fact, we would have weighed the evidence differently.”  United 
States v. Price, 558 F.3d 270, 277 (3d Cir. 2009) (alteration omitted) (quoting Anderson 
v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)).  “When findings are based on 
determinations regarding the credibility of witnesses, [we must give] even greater 
deference to the trial court’s findings; for only the trial judge can be aware of the 
variations in demeanor and tone of voice that bear so heavily on [witness testimony].”  
Anderson, 470 U.S. at 575.   
The District Court based its factual finding in part on the hotel’s security camera 
video.  The video shows the Trooper placing his hand out the window, but he makes no 
gestures that would indicate Williams should stop.  Thus, review of that video evidence 
shows it plausibly supports the District Court’s interpretation that the Trooper placing his 
hand outside the vehicle was not an indication for Williams to stop.  The District Court 
also used the Trooper’s witness testimony at the suppression hearing to reach this factual 
finding.  The Trooper’s testimony that he made no signal for Williams to stop—which 
the District Court found credible—also plausibly supports the District Court’s factual 
finding that the Trooper was not signaling Williams to stop when he put his hand out the 
vehicle window.   
Because the record plausibly supports the District Court’s factual finding, Price, 
558 F.3d at 277, and we are not “left with the definite and firm conviction that a mistake 
6 
has been committed,” Pelullo, 173 F.3d at 135, we hold that the District Court’s factual 
finding is not clearly erroneous.   
B. Williams’s Initial Interaction with the Trooper Was a “Mere 
Encounter” 
Williams next asserts that the District Court erred in holding that his initial 
interaction with the Trooper was a mere encounter.  According to Williams, the Trooper 
illegally seized him, in violation of the Fourth Amendment, by putting his hand out of the 
patrol vehicle’s window while Williams was driving toward the Trooper.   
The Fourth Amendment prohibits “unreasonable searches and seizures.”  U.S. 
CONST. AMEND. IV.  “Police encounters with citizens fall into one of three broad 
categories, each with varying degrees of constitutional scrutiny: ‘(1) police-citizen 
exchanges involving no coercion or detention; (2) brief seizures or investigatory 
detentions; and (3) full-scale arrests.’”  United States v. Brown, 765 F.3d 278, 288 (3d 
Cir. 2014) (quoting United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006)).  “The 
first type of encounter does not implicate the Fourth Amendment.”  Id.  “The second 
category (i.e., brief seizures or Terry stops) requires a showing that the officer acted with 
reasonable suspicion.”  Id.  “And the third category (i.e., full-scale arrests) is proper only 
when an officer has probable cause.”  Id.   
“Only when the officer, by means of physical force or show of authority, has in 
some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has 
occurred.”  Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).  “We apply an objective test when 
evaluating whether an officer’s ‘show of authority’ would have led a reasonable person to 
7 
believe they were not free to leave.”  Brown, 765 F.3d at 289.  “Examples of 
circumstances that might indicate a seizure, even where the person did not attempt to 
leave, would be the threatening presence of several officers, the display of a weapon by 
an officer, some physical touching of the person of the citizen, or the use of language or 
tone of voice indicating that compliance with the officer’s request might be compelled.”  
United States v. Mendenhall, 446 U.S. 544, 554 (1980).  Other factors include middle of 
the night interactions, use of police lights or sirens, commands to stop or show hands, or 
repeated commands.  See United States v. Amos, 88 F.4th 446, 452 (3d Cir. 2023) (using 
police interaction around 2:00 a.m., command to stop and show hands, and use of police 
lights as factors in determining that a show of authority occurred); United States v. Lowe, 
791 F.3d 424, 431 (3d Cir. 2015) (“[W]e held that an objective person would only 
reasonably not have felt free to decline the interaction after the officer repeated his 
motion, and we thus concluded that . . . the repetition of the motion was the ‘show of 
authority.’” (internal citation omitted)).  But “[i]n the absence of some such evidence, 
otherwise inoffensive contact between a member of the public and the police cannot, as a 
matter of law, amount to a seizure of that person.”  Mendenhall, 446 U.S. at 555.   
Here, the Trooper’s actions do not amount to a show of authority.  The Trooper 
was the only officer present at the time; he did not display his badge or weapon; he did 
not touch Williams; he did not verbally command Williams to stop, roll down his 
window, or show his hands; he did not use his police lights or sirens; he did not block 
Williams’s path; and the interaction was not late at night.  The only fact Williams points 
to in support of a show of authority is that the Trooper “moved his left arm from inside 
8 
the vehicle, through the window and outside, directly into Mr. Williams’s line of sight.”2  
Opening Br. 17.  But a reasonable person, who simply saw a police officer’s arm hanging 
out of a patrol vehicle window without anything more, would have felt free to leave.  
Brown, 765 F.3d at 289; Mendenhall, 446 U.S. at 554.   
Accordingly, we hold that the Trooper did not make a show of authority that 
would have led a reasonable person to believe they were not free to leave, and Williams’s 
initial interaction with the Trooper was a mere encounter that did not implicate the Fourth 
Amendment.   
C. The Trooper’s Eventual Seizure of Williams Was Supported by a 
Reasonable Suspicion 
Finally, Williams argues that the District Court erred in holding that the Trooper 
had a reasonable suspicion to support the eventual seizure.  According to Williams, after 
his initial encounter with the Trooper had ripened into an investigatory seizure, the 
Trooper did not have a reasonable suspicion of criminal activity occurring.   
As discussed above, the Fourth Amendment prohibits “unreasonable searches and 
seizures,” U.S. CONST. AMEND. IV, and brief seizures or investigatory detentions must be 
supported by a reasonable suspicion of criminal activity, Brown, 765 F.3d at 288 (citing 
 
2  Williams cites United States v. Lowe, to bolster his argument, but Lowe is not 
applicable.  791 F.3d 424 (3d Cir. 2015).  In Lowe, we held that “when a stationary 
suspect reacts to a show of authority by not fleeing, making no threatening movement or 
gesture, and remaining stationary, he has submitted under the Fourth Amendment and a 
seizure has been effectuated.”  Id. at 434.  But this holding was made in determining 
“[w]hen [] Lowe actually submit[ted] to the show of authority,” not whether a show of 
authority was made.  Id. at 431 (emphasis added).  Even if this holding were legally 
applicable, it is factually distinguishable because Williams was moving—not stationary.  
9 
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)).  In order for a court to find that 
reasonable suspicion existed, “the police officer must be able to point to specific and 
articulable facts which, taken together with rational inferences from those facts, 
reasonably warrant [the seizure or detention].”  Terry, 392 U.S. at 21.  “[W]e must 
consider the totality of the circumstances, including the police officer’s knowledge, 
experience, and common sense judgments about human behavior.”  United States v. 
Robertson, 305 F.3d 164, 167 (3d Cir. 2002).   
Here, the Trooper points to several “specific and articulable facts” that support a 
reasonable suspicion.  Terry, 392 U.S. at 21.  The hotel where the Trooper and 
Williams’s interaction took place had a recent history of drug and other criminal activity.  
Williams had bloodshot, glassy eyes.  Williams responses to the Trooper’s questions 
were mumbled.  As the Trooper approached Williams’s car, he detected the smell of 
marijuana.3  And the Trooper observed that Williams’s pupils were dilated, his hands 
were shaking, and he was taking short, shallow breaths.  Finally, the Trooper had training 
and experience in drug investigations, impaired driving enforcement, and criminal 
 
3  Under Pennsylvania law, possessing marijuana was prohibited.  35 PA. STAT. AND 
CONS. ANN. § 780-113(31) (West 2014).  Additionally, the Trooper did not need 
reasonable suspicion to approach Williams’s vehicle.  See United States v. Williams, 413 
F.3d 347, 349 (3d Cir. 2005) (holding that the Fourth Amendment is not implicated by 
police officers simply approaching a vehicle).   
10 
interdiction.  Taken together, these facts are sufficient to show a reasonable suspicion 
necessary for an investigatory seizure.  Id.   
III. CONCLUSION 
For the reasons discussed above, we will affirm the District Court’s judgment.    


USA v. LaQuan Williams

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-31-2025 
Francielica Da Silva v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Francielica Da Silva v. Attorney General United States of America" (2025). 2025 Decisions. 93. 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-1893 
___________ 
 
FRANCIELICA GESSICA DA SILVA;  
JOAO ROSA PEREIRA-DA SILVA; A. P.-D. S.; D. P.-D. S., 
                                                                                                 Petitioners 
 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
____________________________________ 
 
On Petition for Review of an Order of the 
Board of Immigration Appeals 
(Agency Nos. A220-282-033, -034, -035, -036) 
Immigration Judge: Nicole Beason-Lane 
____________________________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
January 23, 2025 
 
Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges 
 
(Filed: January 31, 2025) 
___________ 
 
OPINION* 
___________ 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
AMBRO, Circuit Judge 
João Rosa Pereira da Silva and his partner Francielica Gessica da Silva, along with 
their two minor children, entered the United States unlawfully and subsequently applied 
for asylum, withholding of removal, and protection under the Convention Against 
Torture (CAT). An Immigration Judge (IJ) denied their applications and the Board of 
Immigration Appeals (BIA) affirmed that decision. Pereira da Silva now petitions us to 
review the decisions of the BIA and IJ. For the reasons below, we deny his petition. 1 
I 
Pereira da Silva is a native and citizen of Brazil. In January 2021, while working 
on a farm, he noticed five men stealing about forty cattle from a neighboring farm. He 
recognized two of the men as members of a local gang. The next day, police officers 
approached him and asked about the theft. Pereira da Silva relayed what he had seen and 
went with them to the police station, where he gave a statement and identified the two 
men he had recognized by photograph. That night, he received a phone call from 
someone who told him that “people who talked to the police wake up with worms in their 
 
1  For simplicity, we refer only to João Rosa Pereira da Silva and his petition. 
Francielica Gessica da Silva was the lead respondent during removal proceedings, but 
the substance of the BIA’s and IJ’s decisions focused on the testimony of Pereira da 
Silva. He and Gessica da Silva filed separate applications for relief in which they each 
listed their children as derivative beneficiaries. The children also filed separate 
applications for asylum, withholding of removal, and CAT protection, but the bases 
for those claims are the same as those of their parents. Thus, our decision as to one 
petitioner applies to all petitioners. 
3 
mouths.” Administrative Record (AR) 41. His partner and boss received similar calls. 
Pereira da Silva told the police about the threatening calls three times, but “nothing 
happened.” AR 87. 
A short time later, three unknown men approached Pereira da Silva while he was 
walking home. Two of the men slapped and kicked him for about three minutes. They 
told him that if he continued to speak with the police, they would kill him. Pereira da 
Silva was uninjured, and he did not report the beating. He continued to receive 
threatening calls for a short period, but those stopped when he told the callers he would 
not testify or talk to the police. 
About four months after the beating, Pereira da Silva and his family entered the 
United States. Because they were not lawfully admitted or paroled after inspection by an 
Immigration Officer, the Department of Homeland Security began removal proceedings. 
They conceded removability and applied for asylum, withholding of removal, and 
protection under the CAT. 
The IJ rejected the asylum application as untimely because it was filed outside the 
one-year filing deadline, which Pereira da Silva conceded. AR 43; see also 8 U.S.C. 
§ 1158(a)(2)(B). The IJ also denied the application for withholding of removal because, 
among other things, Pereira da Silva’s proposed particular social groups—
“eyewitness[es] to gang violence in Brazil,” “police informants in Brazil,” and “family 
members of police informants in Brazil”—were not cognizable. AR 44. And the IJ found 
Pereira da Silva ineligible for CAT protection because he failed to show that he was more 
4 
likely than not to be tortured if he were removed to Brazil, especially because he had not 
received any threats since early 2021. 
The BIA agreed with the IJ that Pereira da Silva’s proposed particular social 
groups were not cognizable and that he was ineligible for CAT protection, and thus 
dismissed his appeal.2 He then timely petitioned us for review. 
II3 
Pereira da Silva raises two arguments against the BIA’s decision. When, as here, 
“the [BIA] relies on an IJ’s legal conclusions and findings of fact, we review [both] the 
IJ’s decision and the [BIA’s] decision.” Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 
684 n.5 (3d Cir. 2015). We review factual findings for substantial evidence and legal 
conclusions de novo. Yasin v. Att’y Gen., 20 F.4th 818, 822 (3d Cir. 2021).  
First, Pereira da Silva argues that the BIA and IJ erred in finding him ineligible for 
withholding of removal. To obtain that relief, he must show that he was persecuted, or 
that it is more likely than not he will be persecuted in the future, because of a statutorily 
protected ground, including membership in a particular social group. 8 U.S.C. 
§ 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). To be cognizable, a proposed particular social 
group must be “(1) composed of members who share a common immutable 
 
2  Pereira da Silva did not challenge the IJ’s denial of his asylum application to the BIA, 
so that denial is not before us. 8 U.S.C. § 1252(d)(1). 
3  The BIA had jurisdiction under 8 C.F.R § 1003.1(b)(3). We have jurisdiction under 8 
U.S.C. § 1252(a)(1). 
5 
characteristic, (2) defined with particularity, and (3) socially distinct within the society in 
question.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 540 (3d Cir. 2018) (citation omitted). The 
particularity requirement means that the group must have “definable boundaries that are 
not amorphous, overbroad, diffuse, or subjective so as to provide a clear standard for 
determining who is a member of it[.]” Inestroza-Tosta v. Att’y Gen., 105 F.4th 499, 518 
(3d Cir. 2024) (alteration in original) (citation omitted). And the social-distinction 
requirement asks “whether the people of a given society would perceive [the] proposed 
group as sufficiently separate or distinct[.]” Id. (second alteration in original) (citation 
omitted). 
The BIA correctly determined that Pereira da Silva’s proposed particular social 
group—“eyewitnesses to gang violence in Brazil”—lacks particularity because “gang 
violence” is not clearly defined. Cf. Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) 
(explaining that “criminal histories” is “too broad and amorphous” because it could 
encompass “offenses ranging in severity from petty theft to first-degree murder”); 
Morales v. Garland, 51 F.4th 553, 556–57 (4th Cir. 2022) (concluding “Salvadorean 
women who are witnesses to gang criminal activity and targeted because they filed a 
police report” was insufficiently particular). The same is true for “police informants in 
Brazil” and “family members of police informants in Brazil” because “informants” is 
overly broad.  
The IJ also properly concluded that Pereira da Silva failed to show that 
“eyewitnesses to gang violence in Brazil” would be perceived, considered, or recognized 
6 
in Brazil as a distinct group. He does not direct us to anything challenging that 
conclusion. Instead, he cites Guzman Orellana v. Attorney General, 956 F.3d 171 
(3d Cir. 2020), which held that “witnesses who have publicly provided assistance to law 
enforcement against major Salvadoran gangs” was a socially distinct group within 
Salvadoran society. Id. at 179–80 (emphasizing that “[p]roviding assistance to law 
enforcement in public, like testifying in court, ‘lends itself to societal recognition’” 
(citation omitted)). But “social distinction involves proof of societal views,” and “[w]hat 
those views are and how they may differ from one society to another are questions of 
fact.” S.E.R.L., 894 F.3d at 556. Just because a specific group is socially distinct in El 
Salvador does not mean that Brazilian society recognizes a broader, vaguer version of it, 
and Pereira da Silva points to no evidence in the record suggesting that it does.  
Second, Pereira da Silva argues that the BIA and IJ failed to analyze properly his 
request for CAT relief under the framework we outlined in Myrie v. Attorney General, 
855 F.3d 509 (3d Cir. 2017).4 We have explained that a CAT claimant “must satisfy a 
two-pronged test, showing both that (1) if he returned home, he would be tortured, and 
(2) the government would acquiesce to that torture.” Llanes-Quinteros v. Att’y Gen., 2023 
 
4  In his petition for review, Pereira da Silva places a due-process label on this claim. 
But he makes no argument related to that sort of violation. See Freza v. Att’y Gen., 49 
F.4th 293, 298–99 (3d Cir. 2022) (outlining the requirements for a noncitizen to assert 
a due-process claim). Instead, he substantively argues—as he did before the BIA—
that the IJ erred in concluding that he was ineligible for relief under CAT. We thus 
consider the substance of Pereira da Silva’s arguments. 
7 
WL 4116625, at *1 (3d Cir. June 22, 2023) (citing Myrie, 855 F.3d at 516–17); see also 8 
C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). For the first prong, “an immigration judge must 
ask: (1A) What harm will the claimant likely suffer if he returns home? and (1B) Would 
that harm amount to torture?” Llanes-Quinteros, 2023 WL 4116625, at *1. For the 
second prong, the immigration judge must ask: “(2A) How will public officials likely 
respond to that harm? and (2B) Would that response amount to acquiescence?” Id. 
“Steps 1A and 2A are factual questions” that we review for substantial evidence, whereas 
“Steps 1B and 2B are legal questions” that we review de novo. Id.  
The IJ properly analyzed whether it was more likely than not that Pereira da Silva 
would be tortured if he were removed to Brazil. Under the first prong, she examined the 
factual evidence in the record, including the threats and beating he experienced in 2021 
as well as Pereira da Silva’s testimony that neither he nor his family had heard from the 
unknown callers since early that year. The IJ concluded, as a factual matter, that Pereira 
da Silva’s fear of future harm in Brazil was “merely speculative.” AR 46. And she 
concluded, as a legal matter, that this level of harm did not amount to torture. AR 45–46; 
see also 8 C.F.R. § 1208.18(a)(2) (defining “torture” as “an extreme form of cruel and 
inhuman treatment”); id. § 1208.16(c)(3) (explaining that evidence of past torture shall be 
considered to determine eligibility for CAT relief). Under the second prong, the IJ 
concluded that Pereira da Silva “ha[d] not shown that [any future] torture would be 
committed by or at the instigation of or with the consent or acquiescence of Brazilian 
public officials.” AR 46. She found that “the police were the ones who originally 
8 
approached [Pereira da Silva] to provide information to them about the incident,” and that 
Pereira da Silva failed to establish “that they were not following through with that 
investigation.” AR 46. And she held on the basis of that finding that the probable future 
conduct of the Brazilian police in response to Pereira da Silva’s feared harm would not 
amount to acquiescence. 
Although the IJ did not signpost each step of her Myrie analysis, she was not 
required to do so.5 The IJ’s factual findings under Steps 1A and 2A—that Pereira da 
Silva’s fear of future harm was speculative and that the Brazilian police would be 
unlikely to ignore any future harm that befalls him—were supported by substantial 
evidence. See Denis v. Att’y Gen., 633 F.3d 201, 218 (3d Cir. 2011) (assertions of future 
torture “based on a chain of assumptions and a fear of what might happen, rather than 
evidence,” cannot demonstrate likelihood of torture). Indeed, Pereira da Silva points to 
nothing suggesting otherwise. And her legal conclusions under Steps 1B and 2B—that 
Pereira da Silva’s speculative fear of future harm did not amount to torture and that the 
likely conduct of Brazilian police would not amount to acquiescence—were correct.  
* * * 
For these reasons, we deny the petition for review.  
 
5  In adopting and affirming the IJ’s decision, the BIA also satisfied the requirements of 
Myrie. See Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) (explaining that 
when the BIA’s final decision is “rendered in a summary fashion[,] … it is simply a 
statement that the [BIA]’s conclusions upon review of the record coincide with those 
which the [IJ] articulated in his or her decision”). 


Francielica Da Silva v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-31-2025 
Dione Luiz Da Cunha v. Attorney General United States of America 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
  ____________ 
 
No. 23-3244 
___________ 
 
DIONE LUIZ DA CUNHA; 
DANIELE MAIARA RIBEIRO; 
M.R.C., 
                        Petitioners   
  
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
____________ 
 
On Petition for Review of a Decision of the 
Board of Immigration Appeals  
 (A220-642-808)   
 (A220-642-809) 
 (A220-642-810) 
Immigration Judge: Steve Mannion 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
(January 23, 2025) 
 
Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges 
 
(Filed: January 31, 2025) 
____________ 
 
OPINION* 
____________ 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
HARDIMAN, Circuit Judge  
Dione Luiz da Cunha seeks review of a Board of Immigration Appeals decision 
dismissing an oral decision of an Immigration Judge denying his application for asylum 
and withholding of removal. We will deny the petition.1  
I 
A native and citizen of Brazil, Luiz da Cunha entered the United States unlawfully 
in 2021. After the Department of Homeland Security served him with a notice to appear, 
he conceded removability and, as relevant here, applied for asylum and withholding of 
removal.  
In support of his application, Luiz da Cunha testified that he owned a produce 
delivery business in Brazil. One morning while Luiz da Cunha was making deliveries, 
two unknown men threatened, pistol-whipped, and robbed him. Luiz da Cunha filed a 
police report, but the authorities never found the perpetrators or the stolen money.  
Fearing more robberies, Luiz da Cunha ceased delivering produce in the area 
where the theft had taken place. Several months later, Luiz da Cunha thought his vehicle 
was being followed by the robbers, so he pulled over and the vehicles passed him. After 
these incidents, Luiz da Cunha became depressed and anxious, and his business suffered. 
As he went deeper into debt, he began to receive threats from creditors but did not report 
them to the police. Eventually, Luiz da Cunha shut down the business and left with his 
family for the United States.  
 
1 Luiz da Cunha’s wife and minor child are listed as derivative beneficiaries of his 
asylum claim, so our decision applies to them also. See 8 U.S.C. § 1158(b)(3)(A).  
3 
 
Luiz da Cunha testified to the Immigration Judge that he suffered and feared 
persecution on account of his membership in six particular social groups (PSGs). They 
included Brazilian men who: are small business owners and those indebted to private 
creditors; are traveling salesmen; own a truck; and witness and oppose criminal activity. 
He believed that if he went back to Brazil, his creditors might kill him.  
The IJ rejected Luiz da Cunha’s application, citing four independent reasons. First, 
he suffered harm from private individuals but failed to establish that the Brazilian 
government was unable or unwilling to protect him. Second, neither the robbery nor 
creditors’ threats constituted past persecution. Third, his proposed PSGs were not 
cognizable. Fourth, his fear of future persecution was not well-founded.  
Luiz da Cunha appealed to the Board. He argued that the IJ erred in finding the 
putative PSGs were not cognizable and that he had not proven past persecution or a well-
founded fear of future persecution by those groups.  
The Board dismissed the appeal and adopted the IJ’s decision. It emphasized that 
Luiz da Cunha had neither suffered harm rising to the level of persecution nor asserted a 
cognizable PSG and therefore could not establish a nexus between the putative 
persecution or fear of future persecution and a protected ground. This petition for review 
followed.  
II2 
Luiz da Cunha’s petition fails at the outset for a procedural reason. As noted, the 
 
2 We have jurisdiction under 8 U.S.C. § 1252(a)(1). The Board had jurisdiction under 8 
C.F.R. § 1003.1(b)(3) and 8 C.F.R. § 1240.15. 
4 
 
IJ found that Luiz da Cunha failed to establish one of the requirements for past 
persecution: that the Brazilian government is unable or unwilling to protect him from 
harm. See Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 86 (3d Cir. 2021). But Luiz da 
Cunha did not challenge the IJ’s finding on that point before the BIA. So he failed to 
exhaust his claim. See 8 U.S.C. § 1252(d)(1).  
Apart from Luiz da Cunha’s failure to exhaust, substantial evidence supports the 
IJ’s and Board’s findings that (1) his harms did not rise to the level of persecution or 
support a well-founded fear of future persecution and (2) he is not a member of a 
cognizable PSG. See Thayalan v. Att’y Gen., 997 F.3d 132, 137–38 (3d Cir. 2021).  
A single act of robbery by unknown assailants, the belief that he was once 
followed by thieves, and vague threats for not paying his debts do not amount to past 
persecution or support an objectively reasonable fear of future persecution. See Lie v. 
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Those isolated incidents, while unfortunate, 
fall well short of the types of persecution faced by the asylum seekers in the cases Luiz 
da Cunha cites. See Chavarria v. Gonzalez, 446 F.3d 508, 521 (3d Cir. 2006) 
(paramilitaries made death threats to the asylum applicant who had intervened in their 
assault on a human rights worker); Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 342–43 
(3d Cir. 2008) (an eight-day abduction and confinement by a guerilla group). So the 
agency did not err when it found Luiz da Cunha failed to meet this burden. 
Nor did the agency err when it held that Luiz da Cunha’s six proposed PSGs were 
not cognizable because they lack the requisite particularity and common immutable 
characteristics. See S.E.R.L. et al. v. Att’y Gen., 894 F.3d 535, 544 (3d Cir. 2018). His 
5 
 
analogy to the cognizable PSG in Guzman Orellana v. Att’y Gen.—a group of witnesses 
who publicly assisted law enforcement against major Salvadoran gangs—is inapt. Unlike 
that group, his putative PSGs do not have “definable boundaries . . . sufficient to satisfy 
the particularity requirement.” 956 F.3d 171, 179 (3d Cir. 2020) (cleaned up). Absent 
membership in a cognizable PSG, he cannot establish eligibility for asylum and 
withholding of removal. See 8 U.S.C. § 1158(b)(1)(B)(i) (asylum); § 1231(b)(3)(C) 
(withholding of removal); see also S.E.R.L., 894 F.3d at 544. 
*   *   * 
For the reasons given, we will deny the petition. 


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