Villanova University School of Law: Digital Repository

Brown, Mallory

English

Outside the Bounds : Counterman v. Colorado\u27s Effect on Amateur Athletics

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-20-2025 
Allen Shultz, III v. County of Franklin 
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Recommended Citation 
"Allen Shultz, III v. County of Franklin" (2025). 2025 Decisions. 218. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/218 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
Nos. 24-2380 & 24-2682 
__________ 
 
ALLEN L. SHULTZ, III, 
                          Appellant 
 
v. 
 
COUNTY OF FRANKLIN; DOMESTIC RELATIONS SECTION; 
JAMES M. STEIN, Divorce Master  
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 1:23-cv-00425) 
District Judge:  Honorable Jennifer P. Wilson 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 19, 2025 
 
Before:  BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: March 20, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
 Allen L. Shultz III appeals the District Court’s orders denying his motions to 
reopen his District Court proceedings.  For the reasons that follow, we will affirm the 
District Court’s orders. 
 Shultz’s allegations and the procedural history of the District Court proceedings 
are well-known to the parties and need not be discussed at length.  Briefly, Shultz, 
unhappy over the distribution of assets in his state court divorce proceedings in 2022, 
filed a complaint challenging Appellees’ actions in those proceedings.  He later amended 
the complaint.  The District Court dismissed the amended complaint but gave Shultz 
leave to file a second amended complaint.  Shultz filed a second amended complaint.  A 
Magistrate Judge recommended that the complaint be dismissed for failure to state a 
claim.  The District Court agreed and dismissed the complaint. 
Shultz did not appeal the District Court’s order.  He later filed two motions to 
reopen his case which the District Court treated as motions to be relieved from the 
judgment pursuant to Fed. R. Civ. P. 60(b).  It denied the motions, and Shultz filed a 
timely notice of appeal which was docketed at No. 24-2380.  Shultz then filed a motion to 
expedite and an emergency motion for summary judgment.  As an appeal was pending, 
the District Court concluded that it lacked jurisdiction over the motions and denied them 
without prejudice.  Shultz filed a timely notice of appeal which was docketed at No. 24-
2682.  The two appeals have been consolidated. 
 
3 
 
 We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s 
order denying Shultz’s Rule 60(b) motions for an abuse of discretion.  Cox v. Horn, 757 
F.3d 113, 118 (3d Cir. 2014).1  Rule 60(b) allows a court to grant a party relief from a 
final judgment for, inter alia, mistake, inadvertence, excusable neglect, newly discovered 
evidence, fraud, misconduct, or any other reason that justifies relief.  See Fed. R. Civ. P. 
60(b). 
 On appeal, Shultz argues that the District Court did not consider the merits of his 
case.  To the contrary, the Magistrate Judge in her Report and Recommendation 
described Shultz’s allegations at length and thoroughly explained why she believed that 
they failed to state a claim for relief.  The District Court adopted that Report and 
Recommendation. 
Shultz also asserts that the District Court ignored his removal of cases from the 
state courts.  As described below, however, Shultz did not clearly and properly remove 
the cases from the state courts.  After the Magistrate Judge recommended dismissing his 
second amended complaint, Shultz filed an 80-page document titled “Removal from Title 
4 Contract Conflicted State Courts Consolidation of State Removed Case #2015-363 
 
1 We note the narrow scope of the appeal.  Shultz’s notices of appeal were timely only as 
to the District Court’s July 12, 2024 and September 9, 2024 orders.  See Fed. R. App. P. 
4(a)(1).  They were not timely as to the March 20, 2024 order dismissing his second 
amended complaint.  See Fed. R. App. P. 4(a)(4)(A)(vi) (stating that a Rule 60 motion 
suspends a judgment’s finality only if it is filed within the time to file a Rule 59(e) 
motion; that is, within twenty-eight days of its entry). 
 
4 
 
PACSES#275115394 Pursuant to 28 1443 for Civil Rights, ADA, Violations, Federal 
Questions Et, Al, and Rule 4.03 (FRCP 42) Motions to Consolidate to 1:23-cv-00425-
00425 SES.”  See ECF #26.  In this lengthy filing, he made a few brief references to the 
state courts and quoted removal statutes.  In its order adopting the Magistrate Judge’s 
recommendation, the District Court did not explicitly mention this issue.  With language 
that was less than clear, Shultz briefly mentioned the purported removal in his motions to 
reopen.  See, e.g., ECF #37 at 3-4 (alleging that neither the Magistrate Judge nor District 
Court judge “EVEN READ THE SUPPLEMENTAL, 3/5/24, OR ANY OF THE three 
28-1443 accepted removals” and that they dismissed the case “while leaving 3- now state 
trial court relinquished USC 28 1443 removals”). 
 To remove a case to federal court, a defendant must file a notice of removal in the 
District Court along with a copy of all the pleadings served on the litigant in the state 
court.  There are also time limits for filing a notice of removal.2  See 28 U.S.C. § 1446.  
In his District Court filing, Shultz did not include the pleadings from the state court cases, 
and his lengthy filing resembled the briefs and motions that Shultz had already filed in 
the District Court.  As Shultz’s attempts to remove the state court cases were both unclear 
and procedurally defective, any inadvertence by the District Court in failing to explicitly 
address his request did not warrant relief from judgment pursuant to Rule 60(b).  
 
2 According to the Superior Court of Pennsylvania, the Court of Common Pleas for 
Franklin County entered an order granting the divorce and distributing the marital 
property in June 2022.  See Shultz v. Shultz, 301 A.3d 917 (Pa. Super. Ct. 2023). 
 
5 
 
Moreover, given Shultz’s brief, incoherent references to the removal request in his 
motions to reopen, it was not an abuse of discretion for the District Court to deny the 
motions. 
While his discussion of the removal issue was more coherent in his filing that was 
framed as a motion for summary judgment, see ECF #44, the District Court did not err or 
abuse its discretion in dismissing those motions as Shultz had already appealed the 
matter.  See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (explaining 
that “[t]he filing of a notice of appeal . . . confers jurisdiction on the court of appeals and 
divests the district court of its control over those aspects of the case involved in the 
appeal”).  And, while the District Court might have construed the motion as arising under 
Rule 60(b) and denied it, see United States v. Contents of Accts. Numbers 3034504504 & 
144-07143 at Merrill Lynch, Pierce, Fenner & Smith, Inc., 971 F.2d 974, 988 (3d Cir. 
1992), Shultz failed to show he was entitled to relief in a serial Rule 60(b) motion. 
For the above reasons, we will affirm the District Court’s judgment. 


Allen Shultz, III v. County of Franklin

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-25-2025 
Terri Reylek v. Anthony Albence 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Terri Reylek v. Anthony Albence" (2025). 2025 Decisions. 233. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/233 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2853 
__________ 
 
TERRI REYLEK, 
      Appellant 
 
v. 
 
ANTHONY J. ALBENCE, State Election Commissioner ex Officio 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of Delaware 
(D.C. Civil Action No. 1:23-cv-00932) 
District Judge:  Honorable Jennifer L. Hall 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 20, 2025 
Before:  RESTREPO, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: March 25, 2025) 
___________ 
 
OPINION* 
___________ 
  
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
Pro se appellant Terri Reylek appeals the District Court’s September 25, 2024 
order granting defendant’s motion to dismiss her complaint for lack of standing. For the 
reasons discussed below, we will affirm the District Court’s judgment. 
Because we write for the parties who are familiar with the factual context and 
procedural history of this case, we recite only the facts that are relevant to our analysis. In 
2023, Reylek filed a complaint with the District Court for the District of Delaware, in 
which she alleged that between July 7, 2020, and May 9, 2023, Appellee Anthony 
Albence, in his official capacity as the Election Commissioner of Delaware, violated her 
right to participate in a free and fair election by continuing to use “unlawfully certified” 
voting machines in both Delaware, generally, and her home county, Kent.  Reyleck 
requested that the Court issue an emergency injunction to preserve evidence and prevent 
further use of machines, as well as a temporary restraining order requiring both the 
appellee and Delaware Department of Elections to preserve relevant evidence from 2020 
onwards. 
 In response, appellee Albence filed a motion seeking to have the case dismissed 
for lack of subject matter jurisdiction and for failure to state a claim. The District Court 
granted the motion after concluding that it lacked subject matter jurisdiction because 
Reylek lacked standing to bring a generalized claim that was common to all voters in her 
state. Reylek then appealed. 
This Court exercises plenary review over district court orders dismissing a 
complaint for lack of standing. N. Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 
3 
371 (3d Cir. 2015). To establish Article III standing, a plaintiff must demonstrate that 
she: “‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct 
of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’” 
Gill v. Whitford, 585 U.S. 48, 65 (2018) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 
338 (2016)). Of these three required elements for standing, the injury-in-fact requirement 
is “[f]oremost,” and requires a plaintiff to demonstrate that she has suffered an “invasion 
of a legally protected interest” that “affect[s] the plaintiff in a personal and individual 
way.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 & n.1 (1992)).  
Here, we agree that the injury-in-fact element is outcome determinative. Reylek’s 
complaint alleged a litany of constitutional and statutory violations, all of which stemmed 
from her underlying claim that her vote, along with the vote of every other citizen in 
Delaware, may have been diluted by the state’s use of uncertified voting machines. 
Reylek’s injury is, therefore, insufficiently particularized to confer standing under Article 
III. Gill, 585 U.S. at 65-67  (holding that, to establish standing in vote-dilution partisan-
gerrymandering case, voters had to show their own district had been packed or cracked; 
statewide interest in representation was insufficient); Berg v. Obama, 586 F.3d 234, 240 
(3d Cir. 2009) (holding that a plaintiff pursuing a claim that President Barack Obama was 
ineligible to serve as President of the United States, lacked standing because “his ‘interest 
in proper application of the Constitution and laws’” was shared with all voters; and that 
the “relief he sought would have ‘no more directly and tangibly benefit[ed] him than . . . 
the public at large”) (quoting Lujan, 504 U.S. at 573-74)); see also Lutostanski v. Brown, 
4 
88 F.4th 582, 586 (5th Cir. 2023); Lake v. Fontes, 83 F.4th 1199, 1202-04 (9th Cir. 2023) 
(per curiam). Further, because standing is a threshold, jurisdictional issue, the District 
Court correctly declined to address the merits of Reyleck’s claims after establishing that 
she lacked standing to sue. Gill, 585 U.S. at 73. 
Accordingly, the District Court did not err when it dismissed Reylek’s complaint, 
and it did not abuse its discretion in doing so without leave to amend. See Grayson v. 
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).  


Terri Reylek v. Anthony Albence

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-28-2025 
USA v. Ruben Rosado 
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Recommended Citation 
"USA v. Ruben Rosado" (2025). 2025 Decisions. 240. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/240 
This March 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. 
 
 
CLD-097        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2697 
___________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
RUBEN ROSADO, 
   Appellant 
 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Criminal Action No. 3:08-cr-00284-001) 
District Judge:  Honorable Zahid N. Quraishi 
____________________________________ 
 
Submitted for Possible Dismissal as Untimely and on  
Appellee’s Motion to Dismiss the Appeal as Untimely or  
for Summary Affirmance 
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
March 6, 2025 
Before:  KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed March 28, 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 
PER CURIAM 
 Pro se appellant Ruben Rosado seeks review of the District Court’s order denying 
his motion brought pursuant to 18 U.S.C. § 3582(c)(2).  For the following reasons, we 
will dismiss the appeal as untimely. 
In 2008, Rosado pleaded guilty to conspiracy to commit Hobbs Act robbery, 
armed bank robbery, and possessing and brandishing a firearm in furtherance of a 
robbery, in violation of 18 U.S.C. §§ 1951(a), 2113(a), and § 924(c)(1).  He was 
sentenced to 334 months’ imprisonment. 
   In January 2024, Rosado filed a motion for compassionate release pursuant to 18 
U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act of 2018 (“FSA”), Pub. L. 
No. 115-391, 132 Stat. 5194 (2018), which authorizes criminal defendants to seek 
reductions of their sentences by demonstrating “extraordinary and compelling” 
circumstances.  In an order entered March 6, 2024, the District Court denied the motion.  
In June 2024, Rosado filed a motion for updated status, requesting a copy of the docket 
sheet.  That August, Ruben filed a letter advising that he never received a copy of the 
order denying his § 3582 motion, and that he learned about the order when he received a 
copy of the docket sheet “shortly after” filing his motion for an updated status.  In his 
letter, Ruben requested a copy of the order and “leave to file a timely appeal.”  ECF No. 
99.  Ruben filed a notice of appeal on September 9, 2024.  The District Court 
subsequently entered a letter order construing the letter-request as a motion to reopen the 
 
 
3 
appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6), and granting it over the 
Government’s objection.1   
The Government has filed a motion to dismiss the appeal as untimely, arguing that 
the District Court abused its discretion in granting the motion to extend the time to 
appeal.  We agree, and will grant the motion to dismiss. 
 A § 3582 motion is a continuation of the prior criminal proceeding, see United 
States v. Arrango, 291 F.3d 170, 171-72 (2d Cir. 2002) (per curiam), so, to be timely, a 
defendant’s notice of appeal must be filed in the district court no later than 14 days after 
the challenged order is entered.  See Fed. R. App. P. 4(b)(1)(A).  Rosado’s notice of 
appeal was filed more than six months too late.  Although Rule 4(b)’s time limitations are 
not jurisdictional, the Government has properly invoked the rule by requesting that this 
Court dismiss the appeal as untimely.  See Virgin Islands v. Martinez, 620 F.3d 321, 327 
(3d Cir. 2010) (“Upon proper invocation of [Rule 4(b)] when a notice of appeal is filed 
out of time, we must dismiss the appeal.”).   
In determining that an extension of time to appeal should be granted, the District 
Court erroneously applied Rule 4(a)(6), which governs appeals in civil cases.  In this 
criminal case, however, Federal Rule of Appellate Procedure 4(b)(4) governed Rosado’s 
motion for an extension of time.  That rule provides that, “[u]pon a finding of excusable 
 
1 We have jurisdiction pursuant to 28 U.S.C. § 1291.  We review for abuse of discretion 
an order granting or denying a motion to extend the time for filing a notice of appeal.  
See United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010). 
 
 
 
4 
neglect or good cause, the district court may . . . extend the time to file a notice of appeal 
for a period not to exceed 30 days from the expiration of the [14-day appeal period].”  
Fed. R. App. P. 4(b)(4).  Accordingly, the District Court lacked the authority to extend 
Rule 4(b)(1)(A)’s time limit by more than 30 days beyond the original deadline.  This 30-
day period expired on April 19, 2024, nearly five months before the notice of appeal was 
filed. 
Accordingly, we grant the motion to dismiss the appeal as untimely. 


USA v. Ruben Rosado

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-2-2025 
Jalina Fluellen v. David Krasn 
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Recommended Citation 
"Jalina Fluellen v. David Krasn" (2025). 2025 Decisions. 258. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/258 
This April 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. 24-3083 
__________ 
 
JALINA FLUELLEN, 
     Appellant 
 
v. 
 
DAVID KRASN, President/Officer of Boyd Gaming Corporation a/k/a Valley Forge 
Casino and Resort; VALLEY FORGE CONVENTION CENTER PARTNERS, L.P.; 
MICHAEL SADOWSKI, Pennsylvania State Trooper, (Troop-T); JOSEPH 
MEADOWCROFT, Pennsylvania State Trooper, (Troop-T); TABETHA A. DAVIS; 
RODNEY E. FRYE, JR. 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2:24-cv-00570) 
District Judge:  Mia R. Perez 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 3, 2025 
 
Before:  SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: April 2, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
 Jalina Fluellen appeals pro se from the District Court’s orders denying her motion 
for a preliminary injunction and granting the defendants’ motion to dismiss because her 
claims were barred by the statute of limitations.  We will affirm the District Court’s order 
and judgment, with one slight modification. 
I. 
 The procedural history of this case and the details of Fluellen’s claims are well 
known to the parties and need not be discussed at length. Briefly, Fluellen filed her 
instant, pro se action on February 5, 2024, based on an altercation that occurred on 
December 29, 2018, at the Valley Forge Casino.  Fluellen alleged that defendants 
Tabetha Davis and Rodney Frye assaulted her while she was playing roulette.  After this 
assault, she was wrongfully branded the aggressor and arrested by Pennsylvania State 
Police (“PSP”) Troopers Michael Sadowski and Joseph Meadowcroft.  She further 
claimed that Valley Forge Casino violated her rights by failing to protect her from this 
assault. The District Court also construed Fluellen’s complaint as asserting a claim for 
malicious prosecution. The Defendants filed motions to dismiss, alleging that all of her 
claims were outside of their relevant statutes of limitations. After a flurry of additional 
filings, Fluellen then filed a motion for a preliminary injunction, which alleged that the 
Clerk of the Eastern District had violated her rights in relation to a “Constitutional 
Challenge of Rule 26.1,” without providing specific details. The District Court then 
dismissed the motion for an injunction without a hearing and granted defendants’ motions 
to dismiss for failure to state a claim. This appeal followed.  
 
3 
 
II. 
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 1292(a)(1). 
“We exercise plenary review over a District Court’s decision to grant a Rule 12(b)(6) 
motion to dismiss” for failure to state a claim, “accept[ing] all factual allegations as true 
and constru[ing] the complaint in the light most favorable to the plaintiff.” Curry v. 
Yachera, 835 F.3d 373, 377 (3d Cir. 2016). Dismissal under Rule 12(b)(6) may be 
appropriate where an affirmative defense—the relevant statute of limitations, for 
example—is apparent on the face of the complaint. See Budhun v. Reading Hosp. & 
Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014); see also Wisniewski v. Fisher, 857 F.3d 
152, 157 (3d Cir. 2017). Meanwhile, we review a district court's ultimate decision to 
deny a preliminary injunction for abuse of discretion, but we exercise plenary review 
over legal conclusions and review findings of fact for clear error. Miller v. Mitchell, 598 
F.3d 139, 145 (3d Cir. 2010).   
III.  
 On appeal, Fluellen argues that the District Court erred in concluding that her 
claims were barred by the statute of limitations.1 She is, however, mistaken. All events 
giving rise to Fluellen’s complaint occurred on or around December 29, 2018. Fluellen 
did not file her complaint until over five years later, in February 2024. Because Fluellen’s 
claims for violations of her constitutional rights under 28 U.S.C. § 1983 arose in 
 
1 Fluellen’s brief raises several additional arguments, but none are relevant to the District 
Court’s dispositive ruling concerning the statute of limitations, and thus need not be 
addressed here. 
4 
 
Pennsylvania, they are subject to a two-year statute of limitations. 42 Pa. Cons. Stat. § 
5524(2); see also Kost v. Kozakiewicz, 1 F.3d 176, 189–90 (3d Cir. 1993). Her state tort 
claims likewise have, at most, two-year statutes of limitations. See 42 Pa. Cons. Stat. § 
5524. Fluellen’s claims accrued, and the relevant statutes of limitation began to run, at 
the time of the incident on or around December 29, 2018. Wallace v. Kato, 549 U.S. 384, 
387-88 (2007); Dubose v. Quinlan, 643 Pa. 244, 258 (Pa. 2017).  
Fluellen, therefore, filed her complaint more than five years after the events giving 
rise to these claims, and well beyond the two-year limitations period.  Fluellen has not 
argued, and nor can we discern from the record, any reason for equitable tolling to apply 
in this instance. Kach v. Hose, 589 F.3d 626, 639-45 (3d Cir. 2009). As a result, with one 
exception discussed below, Fluellen’s claims under 28 U.S.C. § 1983, as well as her state 
tort claims, are manifestly untimely, and the District Court correctly granted the 
Defendant’s motions to dismiss as to those claims. And, in these circumstances, we are 
satisfied that amendment would have been futile. See Grayson v. Mayview State Hosp., 
293 F.3d 103, 114 (3d Cir. 2002). 
 The District Court construed Fluellen’s complaint as raising a claim for malicious 
prosecution, which it dismissed under Pennsylvania’s two-year statute of limitations. To 
the extent that Fluellen truly intended to raise such a claim, dismissal pursuant to the 
statute of limitations is not proper at this time, because Fluellen’s cause of action for this 
claim would not accrue until her underlying criminal conviction is terminated in her 
favor. Heck v. Humphrey, 512 U.S. 477, 489 (1994); see also Coello v. DiLeo, 43 F.4th 
346, 354 (3d Cir. 2022). That said, dismissal of Fluellen’s malicious prosecution claim 
5 
 
was nevertheless proper based on the alternative conclusion that the claim is Heck-
barred, as success on her malicious prosecution claim would necessarily imply the 
invalidity of her underlying conviction.2  Coello, 43 F.4th at 354. As a result, the District 
Court’s October 23, 2024 order dismissing her malicious prosecution claim is modified to 
be without prejudice. Curry, 835 F.3d at 379. 
 The District Court also correctly denied Fluellen’s motion for a preliminary 
injunction, because her submission did not contain any facts or argument which would 
suggest that she would suffer irreparable harm or that she would ultimately succeed on 
the merits of her claims. Bradley v. Pittsburg Bd. of Educ., 910 F.2d 1172, 1175-76 (3d 
Cir. 1990). Fluellen’s motion for an injunction appeared to allege that two members of 
the District Court’s Clerk’s Office had violated her rights in their application of Local 
Rule 26.1 but does not contain any factual allegations or legal arguments beyond broad 
allusions to constitutional rights.  
 Accordingly, we will affirm the District Court’s judgment as modified. Fluellen’s 
motion to file a supplemental brief is granted. 
 
2 The Heck bar applies “no matter the relief sought (damages or equitable relief).” 
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). 


Jalina Fluellen v. David Krasn

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-2-2025 
USA v. Brian Foster 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Brian Foster" (2025). 2025 Decisions. 260. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/260 
This April 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. 24-1538 
_____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
BRIAN FOSTER, 
Appellant 
_____________ 
 
On Appeal from the United States District Court  
for the Middle District of Pennsylvania  
(D.C. No. 3:23-cr-00166-001) 
District Judge: Hon. Malachy E. Mannion 
_____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
December 3, 2024 
_____________ 
 
Before: SHWARTZ, MATEY, and McKEE, Circuit Judges 
 
(Filed: April 2, 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. 
Brian Foster pleaded guilty to possessing a weapon while incarcerated. He appeals 
the District Court’s denial of his request for discovery to support a selective enforcement 
claim. Because the District Court acted within its discretion to deny further discovery on 
this collateral issue, we will affirm.  
I 
While serving his sentence for homicide at FCI Schuylkill, a corrections officer 
inspected Foster and found a piece of clear plexiglass sharpened to a point with a tape 
handle inside Foster’s pants pocket. Foster acknowledged that the plexiglass was a 
weapon, and he was indicted for possessing contraband in violation of 18 U.S.C. § 
1791(a)(2), (b)(3). 
Rather than defend against the charge directly, Foster alleged that FCI Schuylkill 
officials selectively enforce prison contraband laws based on race. In support of a motion 
for discovery on this theory, Foster claimed that over a three-year period the United 
States prosecuted thirty-nine FCI Schuylkill inmates for contraband-only offenses. Of 
those inmates, thirty were black, eight were hispanic, and one was white. He argued that 
when contrasted against the nationwide racial composition of inmates, his statistics 
permit an inference that contraband investigations at FCI Schuylkill are conducted on the 
basis of race. Foster asked the District Court to compel the United States to produce from 
the same three-year period: 1) all incident reports related to possession of a weapon or 
drugs; 2) all forms referring the same incidents to the United States Attorney’s Office; 3) 
all discipline reports related to the same incidents; 4) the race data related to the inmates 
3 
 
involved in the same incidents; and 5) the prison policies on officials’ discretion to refer 
such incidents for prosecution.  
The United States voluntarily produced several of the items Foster requested. 
These materials clarified that only 18% of FCI Schuylkill’s 1,027 inmates were white. 
The United States also confirmed that Foster identified all contraband-only prosecutions 
that occurred during his chosen period. And the United States provided FCI Schuylkill’s 
policy to refer all contraband offenses for prosecution. Based on this additional 
information, the United States opposed the rest of Foster’s discovery requests as overly 
broad and unreasonable.  
The District Court denied Foster’s motion. The Court concluded that Foster’s 
proffer indicates “a racial disparity in the rate of prosecution” for contraband-only 
offenses. App. 145. But it found insignificant the sole prosecution of a white inmate 
based on the low population of white inmates housed at FCI Schuylkill, and the small 
sample of total prosecutions (some thirty-nine). The District Court also noted that prison-
contraband prosecutions leave little room for bias as the facility limits investigations to 
inmates who have chosen to possess contraband. On balance, the District Court 
concluded it could not reasonably infer that prison officials declined to refer contraband 
offenses because the offending inmates were white.  
4 
 
Foster subsequently entered a conditional guilty plea, reserving the right to appeal 
the denial of his motion for discovery.1  
II 
The Fifth Amendment prohibits federal investigations of alleged criminal conduct 
“based on ‘an unjustifiable standard such as race, religion, or other arbitrary 
classification.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Oyler v. 
Boles, 368 U.S. 448, 456 (1962)); see United States v. Washington, 869 F.3d 193, 214 
(3d Cir. 2017). A defendant may collaterally attack his indictment with “clear evidence” 
that investigations or prosecutions were not pursued against similarly situated offenders 
based on some impermissible consideration. Armstrong, 517 U.S. at 465 (quoting United 
States v. Chemical Found., Inc., 272 U.S. 1, 14 (1926)). 
A district court may permit limited discovery on a selective enforcement claim if 
shown evidence of discriminatory effect through “reliable statistical evidence, or its 
equivalent,” that is “strong enough to support a reasonable inference of discriminatory 
intent.” Washington, 869 F.3d at 221. But it must also consider “judicial economy and the 
need to avoid protracted pretrial litigation.” Id. We review only whether the District 
Court’s weighing of Foster’s proffer was “arbitrary, fanciful[,] or clearly unreasonable.” 
See United States v. Collins, 36 F.4th 487, 494 (3d Cir. 2022) (quoting Democratic Nat’l 
Comm. v. Republican Nat’l Comm., 673 F.3d 192, 201 (3d Cir. 2012)). 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 
under 28 U.S.C. § 1291 and review the District Court’s discovery ruling for abuse of 
discretion. See United States v. Washington, 869 F.3d 193, 213 (3d Cir. 2017).  
5 
 
It was not. The District Court reasonably noted Foster’s proffer did not account for 
either the small sample size offered, see, e.g., Blunt v. Lower Merion Sch. Dist., 767 F.3d 
247, 276 (3d Cir. 2014), or the self-selection of inmates who chose to possess contraband. 
And unlike the Washington defendant, whose decision to engage in unconsummated 
criminal activity was not alone dispositive, Foster completed his crime before the 
investigation began. See Washington, 869 F.3d at 222. Additionally, the strength of 
Foster’s initial proffer diminished when the United States voluntarily produced data 
showing that white inmates are a substantial minority of FCI Schuylkill’s population and 
a policy indicating investigators lacked discretion. See id. at 221 (“[T]he end ‘goal’ of 
such a discovery motion is a valid claim of selective enforcement under the heightened 
substantive standards.”). The District Court therefore “operate[d] within its discretion to 
deny additional discovery.” Id.  
* * * 
For these reasons, we will affirm the District Court’s order denying Foster’s 
discovery motion.  
1 
 
McKEE, Circuit Judge, concurring. 
 
 I agree that Foster has not produced sufficient evidence to support a finding of 
selective enforcement, but my reasoning differs somewhat from that of my colleagues.  
I. 
  In United States v. Washington, we examined “the distinction between ‘selective 
prosecution’ and ‘selective enforcement’” claims.1  We explained that selective 
prosecution claims focus on “the actions of prosecutors (in their capacity as 
prosecutors),” whereas selective enforcement claims focus on “the actions of law 
enforcement and those affiliated with law-enforcement personnel.”2  Both “[s]ubstantive 
claims . . . are generally evaluated under the same-two part test”—“[a] defendant 
challenging a criminal prosecution at either the law enforcement or prosecution inflection 
points must provide ‘clear evidence’ of discriminatory effect and discriminatory intent.”3  
However, the standard for obtaining discovery to support each claim is distinct.4  
 Under the Armstrong/Bass test5 that applies to selective prosecution claims, a 
defendant must make a “credible” showing with “‘[s]ome evidence’ . . .  that similarly 
situated persons were not prosecuted.”6  In contrast, although “courts contemplating 
motions for discovery on selective enforcement claims must still be guided by the spirit 
 
1 United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017). 
2 Id. at 214. 
3 Id. 
4 Id. at 220–21. 
5 This test derives from United States v. Armstrong, 517 U.S. 456 (1996) and United 
States v. Bass, 536 U.S. 862 (2002).  Id. at 197. 
6 Id. at 214–15. 
 
 
2 
of Armstrong/Bass,” that test does not apply to selective enforcement claims.7  Rather, in 
selective enforcement claims: 
a district court retains the discretion to conduct a limited pretrial inquiry into 
the challenged law-enforcement practice on a proffer that shows “some 
evidence” of discriminatory effect. The proffer must contain reliable 
statistical evidence, or its equivalent, and may be based in part on patterns 
of prosecutorial decisions . . . . Distinct from what is required under 
Armstrong/Bass, a defendant need not, at the initial stage, provide “some 
evidence” of discriminatory intent, or show that (on the effect prong) 
similarly situated persons of a different race or equal protection classification 
were not arrested or investigated by law enforcement. However, the proffer 
must be strong enough to support a reasonable inference of discriminatory 
intent and non-enforcement.8 
 
 Foster argues that the evidence he produced of a statistical difference between the 
racial/ethnic makeup of the thirty-nine contraband defendants and the racial/ethnic 
makeup of the population of FCI Schuylkill supports a reasonable inference of 
discriminatory intent and non-enforcement.  Although the District Court accepted the 
evidence, it refused to conclude that it supported a reasonable inference of selective 
enforcement because the District Court believed that the sample size of thirty-nine 
defendants was too small to be reliable.   
  The sample size is obviously quite small, but that does not necessarily negate its 
ability to support a reasonable inference.  Fundamentally, all statistical samples are quite 
small relative to the universe they attempt to represent.  That is the beauty and 
significance of statistical sampling.  It allows a reliable conclusion about a larger 
population based upon a small (but representative) sampling of that population.  
 
7 Id. at 220. 
8 Id. at 220–21 (emphasis added). 
 
 
3 
Although “[c]onsiderations such as small sample size may . . . detract from the value of 
[statistical] evidence,”9 if the statistical sample here actually consisted of thirty-nine 
similarly situated defendants, I might be willing to assume that it was adequate to support 
Foster’s conclusion. 
However, in Washington, we explained that “the proffer must contain reliable 
statistical evidence, or its equivalent.”10  The government argues on appeal that Foster’s 
“limited proffer” did not establish a reasonable inference because it “included both 
questionable and inaccurate data.”11  I agree.  Foster’s evidence has the following flaws:  
A. Foster’s data collection methods were questionable. 
 Foster identified thirty-nine contraband defendants based on an ECF search but 
admitted there could have been additional defendants that he missed because their cases 
were either miscoded on ECF or filed under seal.  Foster offered no evidence of the race 
of three defendants but assumed they were coded as White.  He also assumed that seven 
of the eight White defendants were Hispanic based on their last names and a website of 
unverified accuracy called “namecensus.com.”12  
B. Foster’s choice of data to compare was questionable. 
Foster initially compared the thirty-nine contraband defendants to the population 
of the BOP at large.  Only after the government provided information about the 
 
9 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977). 
10 Washington, 869 F.3d at 221. 
11 Answering Br. 16. 
12 The government initially affirmed Foster’s assertion that there were thirty-nine 
contraband defendants of whom thirty were Black, eight were Hispanic, and one was 
White. Thus, it might be possible to overlook these particular flaws in this data. 
 
 
4 
population of FCI Schuylkill did he change his comparison so that it was based on the 
relevant institution. 
 Although everyone in his dataset was charged with possessing contraband in 
violation of 18 U.S.C. § 1791(a)(2), the statute defines several different kinds of 
“prohibited objects,” including weapons, controlled substances, cellphones, and 
currency.13  While some individuals in Foster’s dataset were charged with possessing 
weapons, many others were charged with possessing controlled substances or cellphones.  
Foster failed to distinguish between these three categories of contraband defendants. 
Foster was charged with weapons contraband.  It is not only conceivable that 
prison officials might treat possession of each category of prohibited objects differently, 
it is understandable and perhaps even likely.  For example, corrections officials could be 
granted discretion in how they enforce prohibitions against possessing currency but be 
required to refer weapons contraband for prosecution.  
 If we look at weapons only contraband, then one out of only sixteen defendants 
was White as opposed to one out of thirty-nine.  This sixteen-person dataset is even less 
reliable and less statistically significant than Foster’s original dataset.  Given the already 
small sample size, this reduction in relevant data further undermines the reliability of 
Foster’s conclusion.  
C. Foster’s selected time period was questionable. 
 
13 18 U.S.C. § 1791(d)(1)(A)–(D).  The statute further distinguishes among numerous 
types of controlled substances such as methamphetamine, marijuana, and alcoholic 
beverages.  
 
 
5 
 Foster did not explain why his statistical inquiry relied upon a three-year time 
period and there is no reason why we should conclude that even a statistically valid 
analysis of the three years relied upon would yield a “fair” statistical conclusion. 
 Although Foster was indicted on June 20, 2023, he continued the three-year 
dataset until July 19, 2023.  There is no explanation of why the dataset continued after his 
suit began. 
If we cannot consider cases after Foster’s indictment, the number of weapons 
contraband cases drops from sixteen to fourteen, and our dataset is further reduced to one 
White defendant out of the fourteen.  There is absolutely no reason to conclude that a 
dataset that small can support a reliable inference of selective enforcement.  
D. Foster’s number of contraband defendants was inaccurate. 
 Originally, Foster identified thirty-nine contraband defendants.  In his reply brief, 
however, he noted that a superseding indictment had eliminated one of the thirty-nine but 
failed to identify the eliminated defendant’s name, race, or contraband category.  
Considering this already very small dataset, I am not willing to assume that this change 
would have no bearing on the reliability of Foster’s conclusion about the likelihood of 
selective enforcement.  
 
 
 
 
 
 
 
6 
II. 
 As a result of the many flaws in the data, it is impossible to conclude that Foster 
proffered “reliable statistical evidence, or its equivalent.”14  Foster could have 
strengthened his proffer by providing additional evidence, including expert analysis to 
explain and substantiate his argument about the validity of his dataset.15  Absent more 
than appears on this record, we are in no position to hold that the District Court abused its 
discretion in rejecting Foster’s claims of selective enforcement.  I therefore agree with the 
majority’s conclusion that we must affirm the District Court’s order. 
 
14 Washington, 869 F.3d at 221. 
15 Courts may also “consider the product of earlier investigations in deciding whether to 
conduct pretrial discovery on the individual claims they happen to confront.”  
Washington, 869 F.3d at 221.  If previous investigations or lawsuits involving FCI 
Schuylkill revealed selective enforcement or racial bias, this evidence could strengthen a 
motion for discovery. Moreover, an affidavit from Foster, or another inmate at the prison 
who witnessed selective enforcement, could also bolster his motion. 


USA v. Brian Foster

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-4-2025 
Catherine Baker v. Croda Inc 
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Recommended Citation 
"Catherine Baker v. Croda Inc" (2025). 2025 Decisions. 268. 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 22-1333 
_____________ 
 
CATHERINE BAKER, Individually and on behalf of all others similarly situated, 
      Appellant 
 
v. 
 
CRODA INC., f/k/a Croda, Inc. 
 __________________ 
 
On Appeal from the United States District Court 
for the District of Delaware 
(D.C. No. 1:20-cv-01108) 
District Judge: Honorable Stephanos Bibas, Circuit Judge (sitting by designation) 
___________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 20, 2022  
 
Before: AMBRO1, RESTREPO, and FUENTES2, Circuit Judges  
 
______________ 
 
JUDGMENT ORDER 
______________ 
 
This cause came to be considered on the record from the United States District 
Court for the District of Delaware and was submitted under L.A.R. 34.1(a) on September 
20, 2022.   
 
1 Judge Ambro assumed senior status on February 6, 2023. 
2 Judge Fuentes was a member of the merits panel.  However, he took inactive status on 
September 12, 2024 and did not participate in this decision.  This judgment order is filed 
by a quorum of the Court. 28 U.S.C. § 46; Third Circuit I.O.P. 12.1(b). 
 
 
2 
 
Plaintiff in this case filed two appeals.  The first (No. 21-3360) was filed after the 
District Court initially dismissed Plaintiff’s complaint on November 23, 2021, without 
prejudice and with leave to amend.  Plaintiff then stood on the complaint and the District 
Court dismissed the complaint with prejudice on February 18, 2022.  Plaintiff filed a 
second appeal from the dismissal with prejudice (No. 22-1333).  The appeals were 
consolidated for all purposes. 
On September 15, 2023, this Court issued an opinion agreeing with the District 
Court’s dismissal of the case.  Baker v. Croda Inc., 2023 WL 5993109 (3d Cir. Sep. 15, 
2023).  The opinion was inadvertently filed only in Plaintiff’s first appeal (No. 21-3360), 
and the accompanying judgment only affirmed the District Court’s November 23, 2021, 
order. 
For the reasons set forth in the September 15, 2023, opinion, it is now hereby 
ORDERED and ADJUDGED that the District Court’s Order entered on February 18, 
2022, is AFFIRMED.  Costs will not be taxed. 
 
By the Court, 
 
s/ L. Felipe Restrepo  
Circuit Judge 
 
 
ATTEST: 
 
s/ Patricia S. Dodszuweit 
Clerk 
 
Dated:  April 4, 2025 


Catherine Baker v. Croda Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-8-2025 
East Brunswick Board of Education v. D. S. 
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Recommended Citation 
"East Brunswick Board of Education v. D. S." (2025). 2025 Decisions. 274. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 23-2558 
____________ 
 
EAST BRUNSWICK BOARD OF EDUCATION,  
Appellant 
 
v. 
 
D.S. and M.S., o/b/o A.S. 
____________ 
 
On Appeal from the United States District Court  
for the District of New Jersey 
(D.C. Civil No. 2-21-08279) 
District Judge: Honorable Brian R. Martinotti 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
on January 14, 2025  
 
Before: PHIPPS, FREEMAN, and CHUNG, Circuit Judges 
 
(Opinion filed: April 8, 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 
FREEMAN, Circuit Judge. 
 
The East Brunswick Township Board of Education (“the Board”) appeals the 
District Court’s order granting in part and denying in part M.S. and D.S.’s motion for 
summary judgment in this matter regarding their child’s education.  For the following 
reasons, we will dismiss the appeal for lack of jurisdiction.   
I. 
M.S. and D.S.’s child, A.S., became eligible for special education and related 
services in 2005 when she was in preschool.  In the ensuing years, she was diagnosed 
with a learning disability and anxiety, mood, and language disorders.   
Starting in 2017, the parents and the Board had a series of disagreements about 
A.S.’s education.  Due to those disagreements, the parents unilaterally placed A.S. in a 
private school in 2019.  They filed an administrative action against the Board in June 
2019, and an Administrative Law Judge (“ALJ”) issued a final decision in their favor in 
January 2021.  The ALJ ordered the Board to reimburse the parents for the costs of the 
private school, develop an Individualized Education Program consistent with A.S.’s 
placement at the private school, and provide A.S. with 50 hours of compensatory 
education.   
In April 2021, the Board appealed the administrative decision by filing a 
complaint against the parents in the District Court.  The parents then filed counterclaims 
pursuant to the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the 
Rehabilitation Act of 1973, and 42 U.S.C. § 1983.  For each counterclaim, they sought an 
 
3 
award for attorney’s fees and costs that they incurred during the administrative 
proceeding and the federal court action.  They also sought other relief, including 
enforcement of the administrative decision and a declaration that they were the prevailing 
party in the administrative action.   
In July 2023, the District Court granted in part and denied in part the parents’ 
motion for summary judgment.  It granted summary judgment in favor of the parents on 
the Board’s appeal, affirming the administrative decision.  However, the District Court 
denied summary judgment on the parents’ counterclaims without prejudice.  It explained 
that the parents had not supported their counterclaims with reference to the statutory 
requirements, leaving the Court “unable to determine an appropriate award of fees, if any 
are warranted at all.”  App. 33 (citing McKenna v. City of Philadelphia, 582 F.3d 447, 
459 (3d Cir. 2009), which explained that the party claiming fees in a statutory fees case 
must submit evidence of the hours worked and rates claimed). 
One week later, the parents moved for reconsideration of the order denying their 
counterclaims.  They asserted that they had not filed a formal application for fees with 
their summary-judgment motion because the District Court had not yet adjudicated the 
substance of their claims.  They further asserted that they needed the District Court to 
declare them the prevailing party, which is a statutory prerequisite for IDEA fee awards.   
While the parents’ motion for reconsideration was pending, the Board filed a 
notice of appeal from the summary-judgment order.  The next week, the District Court 
denied the motion for reconsideration, noting that the parents may file a formal motion 
 
4 
for attorney’s fees and costs after resolution of the Board’s appeal of the summary-
judgment order.   
II.1 
Before turning to the merits of this case, we must be satisfied that we have 
appellate jurisdiction.  Metro Transp. Co. v. N. Star Reinsurance Co., 912 F.2d 672, 675 
(3d Cir. 1990).  “We always have jurisdiction to consider our own jurisdiction,” and we 
give jurisdictional questions plenary review.  Zenith Ins. Co. v. Newell, 78 F.4th 603, 606 
(3d Cir. 2023). 
The parties seek to invoke 28 U.S.C. § 1291, which gives us jurisdiction over “all 
final decisions of the district courts.”2  “A ‘final decision’ is ‘one which ends the 
litigation on the merits and leaves nothing for the court to do but execute the judgment.’”  
OI Eur. Grp. B.V. v. Bolivarian Republic of Venezuela, 73 F.4th 157, 174 (3d Cir. 2023) 
(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)), cert. denied, 144 S. Ct. 549 
(2024).  And there is no final decision “if claims remain unresolved and their resolution is 
to occur in the district court[,] . . . whether the unresolved claim was asserted in the 
plaintiff’s complaint or was pleaded as a counterclaim or a cross-claim.”  Aluminum Co. 
of Am. v. Beazer E., Inc., 124 F.3d 551, 557 (3d Cir. 1997) (cleaned up).   
 
1 The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. 
2 The parties have invoked no alternative basis for our jurisdiction, and none applies to 
this appeal. 
 
5 
The District Court’s summary-judgment order is not a final decision because it did 
not resolve the parents’ counterclaims.  After obtaining some relief in the administrative 
proceeding, the parents turned to the District Court for additional relief.  For one, in their 
counterclaim under the IDEA, they seek attorney’s fees that a district court may award 
“to a prevailing party” in an IDEA action or proceeding “who is the parent of a child with 
a disability.”  20 U.S.C. § 1415(i)(3)(B)(i)(I).  This counterclaim is distinct from the 
Board’s appeal of the administrative order.  Cf. D.S. v. Bayonne Bd. of Educ., 602 F.3d 
553, 563–64 (3d Cir. 2010) (reviewing a final judgment in which parents brought a 
standalone IDEA claim for attorney’s fees after prevailing in an administrative 
proceeding).  And the District Court has yet to rule on the merits of this counterclaim—
i.e., to decide whether the parents were the prevailing party or whether they should 
receive attorney’s fees—or the other two counterclaims the parents brought.3  Thus, the 
order the Board seeks to appeal is not a final decision.  
* * * 
For the reasons set forth above, we will dismiss the appeal for lack of jurisdiction.  
 
3 Indeed, after the District Court entered its summary-judgment order (but before the 
Board filed its notice of appeal), a magistrate judge contacted the parties about 
scheduling a settlement conference or a final pretrial conference regarding the claims not 
resolved in the summary-judgment order.  And the District Court’s docket reveals that the 
parties participated in an unsuccessful settlement conference during the pendency of this 
appeal.   


East Brunswick Board of Education v. D. S.

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-10-2025 
Joseph Bushra v. Main Line Health Inc 
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Recommended Citation 
"Joseph Bushra v. Main Line Health Inc" (2025). 2025 Decisions. 282. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
________________ 
 
No. 24-1117 
________________ 
 
JOSEPH BUSHRA, 
 
   Appellant 
 
v. 
 
MAIN LINE HEALTH, INC. 
________________ 
 
Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D. C. No. 2:23-cv-01090) 
District Judge:  Honorable Harvey Bartle, III 
________________ 
 
Submitted under Third Circuit L.A.R. 34.1(a) 
 on September 13, 2024 
 
Before: CHAGARES, Chief Judge, ROTH and RENDELL, Circuit Judges 
 
 
(Opinion filed: April 10, 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 
 
 
ROTH, Circuit Judge 
 
Dr. Joseph Bushra, an attending physician at one of Main Line Health (MLH)’s 
hospital emergency departments, sued MLH for failure to accommodate his religious 
beliefs and for retaliation under Title VII of the Civil Rights Act1 and the Pennsylvania 
Human Relations Act (PHRA), after MLH denied him a religious exemption to its 
mandatory COVID-19 vaccine policy.2  The District Court granted summary judgment to 
MLH, and we will affirm. 
I.3 
Dr. Bushra has worked in MLH’s Lankenau Medical Center for more than twenty 
years, most recently as an attending physician and Campus Chief of the Emergency 
Department.4  His regular duties required him to work in-person in the emergency room, 
and to interact with patients, including those with COVID-19.   
In July 2021, MLH adopted a mandatory vaccination policy that required its 
employees and staff to show proof of COVID-19 vaccination by October 1, 2021.  
Alternatively, MLH offered the opportunity to request medical or religious exemptions, 
but cautioned that “it is possible that there may not be a reasonable accommodation that 
 
1 42 U.S.C. § 2000e et seq. 
2 43 Pa. Cons. Stat. § 951. 
3 We write for the benefit of the parties and therefore recite only the essential facts. 
4 Dr. Bushra was contracted to provide services to Main Line Health through Main Line 
Emergency Medicine Associates LLC (MLEMA), for which he is an employee and part 
owner.  MLEMA is “a private practice emergency medicine physician group that 
contracts with Main Line Health to provide emergency room staffing . . . for the four 
Main Line Health hospitals.”  Appx. 66, ¶ 2.   
 
3 
 
will allow every person with such an exemption to continue to work onsite while 
unvaccinated.”5  MLH approved “some” religious exemption requests, but the record 
does not indicate whether or how it accommodated those individuals.   
Dr. Bushra applied for a religious exemption to MLH’s COVID-19 vaccination 
policy, which MLH denied.  In so doing, MLH informed Dr. Bushra that it had 
determined that he “did not articulate a sincerely held religious belief that is contrary to 
receiving the COVID-19 vaccination.”6  Dr. Bushra did not get the COVID-19 
vaccination, and on November 15, 2021, MLH placed him on administrative suspension. 
Dr. Bushra sued MLH for religious discrimination in March 2023.  In December 
2023, the District Court granted summary judgment to MLH.  Dr. Bushra appealed.  
II.7 
Title VII prohibits discrimination against “any individual with respect to his 
compensation, terms, conditions, or privileges of employment, because of such 
individual’s . . . religion . . . .”8  Employers are obligated to make reasonable 
accommodations for employees’ religious beliefs and practices, unless doing so would 
 
5 Appx. 665–66. 
6 Appx. 745. 
7 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.  We have 
jurisdiction pursuant to 28 U.S.C. § 1291.  We review a grant of summary judgment de 
novo, applying the same standard as the District Court.  See Kelly v. Borough of Carlisle, 
622 F.3d 248, 253 (3d Cir. 2010).  Summary judgment is proper only “if the movant 
shows that there is no genuine dispute as to any material fact and the movant is entitled to 
judgment as a matter of law.”  Fed. R. Civ. P. 56(a).   
8 42 U.S.C. § 2000e-2(a)(1).  We examine Dr. Bushra’s claims under Title VII, as the 
PHRA applies the same analytical framework.  Atkinson v. Lafayette Coll., 460 F.3d 447, 
454 n.6 (3d Cir. 2006) (“Claims under the PHRA are interpreted coextensively with Title 
VII claims.”). 
 
4 
 
cause the employer “undue hardship.”9  Title VII also prohibits retaliation, as relevant 
here, against employees who “opposed any practice made an unlawful employment 
practice” by the statute.10  
A. 
Dr. Bushra’s arguments on appeal largely challenge the District Court’s 
determination that MLH established the undue hardship defense to his religious 
discrimination claims.  Undue hardship is a complete defense to Dr. Bushra’s claims.  
There is no violation of Title VII or the PHRA where an employer “demonstrates that he 
is unable to reasonably accommodate to an employee’s or prospective employee’s 
religious observance or practice without undue hardship on the conduct of the employer’s 
business.”11  As we affirm the District Court on these grounds, we assume, without 
deciding, that Dr. Bushra has met the requirements of his prima facie case.12    
To establish undue hardship, MLH must point to a hardship that is “substantial in 
the context of [its] business.”13  MLH has met this burden.  It has shown, and Dr. Bushra 
admits, that Dr. Bushra treated vulnerable patients in the normal course of his clinical 
duties and interacted with patients with COVID-19.  Hospital settings like Lankenau 
 
9 Groff v. DeJoy, 600 U.S. 447, 453 (2023) (quoting 42 U.S.C. § 2000e(j)). 
10 42 U.S.C. § 2000e-3(a). 
11 Id. § 2000e(j). 
12 We may “affirm the District Court’s grant of summary judgment on any basis 
supported by the record.”  United States ex rel. Spay v. CVS Caremark Corp., 875 F.3d 
746, 753 (3d Cir. 2017). 
13 Groff, 600 U.S. at 471.  Our examination of undue hardship “takes into account all 
relevant factors in the case at hand, including the particular accommodations at issue and 
their practical impact in light of the nature, size and operating cost of [an] employer.”  Id. 
at 470–71 (internal quotations omitted).  
 
5 
 
Medical Center facilitated COVID-19 transmission between patients and healthcare 
workers.  MLH provided unrebutted expert testimony that unvaccinated healthcare 
workers, like Dr. Bushra, presented an increased risk of transmitting COVID-19 to 
others, particularly when they interacted with vulnerable groups.  The consequences of 
increased COVID-19 transmission are well-established and undisputed:  patients and 
employees at MLH died from COVID-19, and the on-site spread of this serious infectious 
disease compromised MLH’s mission and ability to care for sick patients, and it 
jeopardized the health and efficacy of its employees and staff.  MLH’s expert additionally 
testified, contrary to Dr. Bushra’s assertion, that alternative infection control strategies, 
such as frequent testing and masking, were not sufficient to prevent transmission.  We 
agree with the District Court that this substantial, undisputed evidence establishes undue 
hardship.   
Dr. Bushra has presented no evidence in rebuttal.14  Instead, he argues that MLH 
cannot claim undue hardship when it has granted religious exemptions to other 
employees.  But without any information on other employees granted accommodations,15 
we cannot reasonably infer that MLH accommodated similarly situated staff.  Dr. 
 
14 Dr. Bushra protests that it is “disingenuous” for MLH to raise undue hardship when it 
solely considered the sincerity of his religious beliefs when denying his exemption 
request.  Appellant Br. at 13.  However, MLH’s policy expressly states that it may not be 
able to accommodate religious exemptions, even if granted.  We cannot reasonably infer 
that MLH could accommodate Dr. Bushra from the mere fact that it did not discuss the 
issue in its decision to deny his request on separate grounds.  
15 Dr. Bushra provides no responsive evidence aside from his own deposition testimony 
and a redacted request for religious exemption.  The District Court correctly identified 
Dr. Bushra’s testimony as inadmissible hearsay and found that the redacted exemption 
request provides no relevant comparator evidence. 
 
6 
 
Bushra’s assertion that an unknown number of unnamed employees received unidentified 
accommodations does not rebut MLH’s substantial evidence that it could not 
accommodate him.16  As MLH has presented substantial evidence of undue hardship, and 
Dr. Bushra has not provided any “actual evidence in the record on which a jury could 
decide an issue of fact [his] way,” we will affirm the District Court’s grant of summary 
judgment.17   
B. 
Dr. Bushra’s retaliation claim fares no better.  To establish the prima facie case for 
Title VII retaliation, Dr. Bushra must show that (1) he engaged in a protected activity, (2) 
he suffered an adverse employment action, and (3) that there is a causal connection 
between the protected activity and the adverse action.18  Even if Dr. Bushra’s request for 
a religious exemption and subsequent appeals are protected activities, and assuming that 
his administrative suspension is the adverse employment action,19 Dr. Bushra’s retaliation 
claim would fail on the third prong, as he has not shown a causal connection.  That is, he 
has not provided any support for his contention that he was placed on administrative 
suspension because he requested a religious exemption, rather than because he failed to 
 
16 Though we view the record in the light most favorable to the nonmovant, the 
nonmovant must still support its rebuttals with citations to materials in the record or show 
that the “materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. 
Civ. P. 56(c)(1)(A), (B). 
17 El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007). 
18 See Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006), as amended 
(Sept. 13, 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). 
19 Dr. Bushra does not state the adverse employment action for his retaliation claim, so 
we assume, for the sake of this decision, that it is the same as the one he identifies for his 
religious discrimination claim.  
 
7 
 
follow the mandatory vaccine policy.  We will affirm the District Court’s grant of 
summary judgment on this claim as well. 
III.  
For the foregoing reasons, the District Court’s order granting summary judgment 
will be AFFIRMED.   


Joseph Bushra v. Main Line Health Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-25-2025 
USA v. Kevino Graham 
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https://digitalcommons.law.villanova.edu/thirdcircuit_2025/324 
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CLD-112        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3267 
___________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
KEVINO GRAHAM, 
          Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Criminal Action No. 2:14-cr-00623-001) 
District Judge:  Honorable Cynthia M. Rufe 
____________________________________ 
 
Submitted by the Clerk for Possible Dismissal Due to Untimely Filing, and on the 
Government’s Motion to Dismiss or for Summary Affirmance 
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
March 27, 2025 
 
Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed: April 25, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
Kevino Graham appeals the denial of his motion for compassionate release.  The 
Government has filed a motion for summary affirmance.  For the reasons that follow, we 
will grant the motion.   
 In 2017, Graham was sentenced to 100 years in prison after being convicted of sex 
trafficking by force, in violation of 18 U.S.C. §§ 1591 and 1594.  We affirmed his 
conviction and sentence on appeal, see C.A. 17-3593, and denied a certificate of 
appealability after the denial of Graham’s motion filed pursuant to 28 U.S.C. § 2255, see 
C.A. No. 20-1631.  Graham has since filed multiple additional unsuccessful post-
conviction motions challenging his underlying conviction.     
 In September 2024, Graham filed a motion for compassionate release “Pursuant to 
‘New’ Amended Provision § 3582(c)(1) and 1b1.13(b)(6),”  arguing that a change in the 
law constituted an extraordinary and compelling reason warranting a sentence reduction.  
D.Ct. ECF No. 668 at 1, see also U.S.S.G. § 1B1.13(b)(6).  The District Court denied the 
motion.  Graham appeals, and the Government moves to summarily affirm the order of 
the District Court.1 
We have jurisdiction pursuant to 28 U.S.C. § 1291.  We review a District Court’s 
order denying a motion for compassionate release for an abuse of discretion and will not 
disturb that decision unless the District Court “committed a clear error of judgment.”  
United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020).  We may summarily 
 
1 The Government also moved to dismiss the appeal as untimely.  Because the timeliness 
of Graham’s notice of appeal is unclear, we decline to do so. 
 
3 
affirm a District Court’s decision if the appeal fails to present a substantial question.  See 
3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.   
Pursuant to 18 U.S.C. § 3582(c)(1)(A), a District Court may reduce a sentence if, 
inter alia, “extraordinary and compelling reasons warrant such a reduction.”  Graham’s 
motion relied upon a November 2023 update to Section 1B1.13(b)(6) of the Sentencing 
Guidelines.  Under that provision, certain nonretroactive changes in the law may be 
considered in determining whether a defendant has presented an extraordinary and 
compelling reason for a sentence reduction where, inter alia, “(1) a defendant received an 
unusually long sentence, (2) the defendant has served at least 10 years of the term of 
imprisonment, [and] (3) an intervening law change has produced a gross disparity 
between the sentence being served and the sentence likely to be imposed at the time the 
motion is filed.”  United States v. Rutherford, 120 F.4th 360, 367 (3d Cir. 2024) (quoting 
U.S.S.G. § 1B1.13(b)(6)) (internal quotation marks and alterations omitted).  “Notably, 
because (b)(6) states that changes in law may (not must) be considered, judges are not 
required to consider a change in law when determining a prisoner’s eligibility for 
compassionate release.”  Id. (emphasis in original).   
Graham argued that he was entitled to relief pursuant to this provision because, in 
2007, the Sentencing Commission “amended section 208 of the Adam Walsh Child 
Protection and Safety Act, and added it’s [sic] own provision regarding sex trafficking of 
adults.”  D.Ct. ECF No. 668 at 1 (emphasis omitted).   Graham asserted that this 
constituted an “unsanctioned change in law” that erroneously increased his base offense 
 
4 
level from 14 to 24, and that if sentenced today “based on the ‘actual’ section ‘208,’” he 
would receive a drastically lower sentence.  Id. at 2.   
Even assuming any merit to Graham’s assertions, we agree with the District Court 
that the 2007 amendment to the Sentencing Guidelines does not constitute an 
extraordinary or compelling reason to justify a sentence reduction.  Notably, Graham has 
not shown any intervening change in the law since the imposition of his sentence that 
would produce a gross sentencing disparity.  See Rutherford, 120 F.4th at 367.  Graham’s 
trial, conviction, and sentencing all took place after the 2007 amendments he asserts 
constitute a change in the law.  Furthermore, we agree with the Government, see D.Ct. 
ECF No. 669 at 1-2, that Graham’s motion is actually another attempt to challenge his 
conviction and sentence, which must be presented under 28 U.S.C. § 2255 and subject to 
that statute’s limitations on successive filings.   
As the District Court clearly did not abuse its discretion in denying Graham’s 
motion for compassionate release, the appeal does not present a substantial question.  
Accordingly, we grant the Government’s motion for summary action and will summarily 
affirm the District Court’s judgment.  See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. 


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