A big day in Third Circuit court

INQUIRER STAFF WRITER

Lawyer Mark A. Perry sat at the counsel table in the crowded courtroom yesterday looking very alone.

While the cavernous courtroom buzzed with conversation, Perry sat stock-still, eyes closed, hands together as if praying.

He had reason to be nervous: He was about to argue a big case before the U.S. Court of Appeals for the Third Circuit, and his former boss - retired Supreme Court Justice Sandra Day O'Connor - was one of the judges.

"She retired from the Supreme Court before I ever got the chance to argue a case before her," said Perry, O'Connor's law clerk from 1993 to 1994. "It was just pure chance I got to before the Third Circuit in this case."

Every field has its celebrities. In the law, it's a justice of the U.S. Supreme Court - and about 150 lawyers, law clerks, students, and assorted court buffs attended the oral arguments at the U.S. Courthouse off Independence Mall.

"I feel like it was a once-in-a-lifetime opportunity," said legal assistant Sandy Rigby.

Rigby said O'Connor is a personal hero; the first female Supreme Court justice and she share a first name.

"I've been part of the legal profession for 30 years. I never got to be an attorney, but I did get to be a paralegal," Rigby said.

Rigby said she was awed by the questions from the three judges: "If I had to be down there answering pointed questions from her, I think I'd walk away in tears."

Equally star-struck was Rigby's boss, Michael A. Schwartz, a former federal prosecutor who now defends white-collar criminals.

"I was here for no other reason than to see her," said Schwartz of O'Connor.

"I was incredibly impressed," Schwartz added. "Her questioning was sharp and pointed, but at the same time, she was courteous to the lawyers."

If yesterday's hearing had an air of celebrity, reality was anything but. There was no posing for photos; O'Connor, protected by at least four deputy U.S. Marshals, was whisked out of the courtroom after the 90-minute hearing ended.

The Third Circuit's rulings govern federal trial courts in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands.

Though the court frequently asks outside judges to fill vacancies on its three-judge panels, O'Connor was the first Supreme Court justice to sit "by designation" on the Third Circuit. To accommodate the crowd, the arguments were moved from the Third Circuit's usual, modest courtrooms on the 19th floor to the large ceremonial courtroom.

Chief U.S. Circuit Judge Anthony J. Scirica told O'Connor that it was a "historic day for the Third Circuit. You do us honor by joining us in deciding these cases."

"It's a great privilege to be part of this very distinguished panel," replied O'Connor.

Then it was down to work for Scirica, O'Connor, and U.S. Circuit Judge Marjorie O. Rendell: three cases involving the Americans With Disabilities Act, possession of firearms by a convicted felon, and habeas corpus.

For lawyers, oral argument before the Third Circuit is like a law school oral exam. Though each side is allotted time to argue its position, no lawyer lasts long before being interrupted by one or more of the judges with challenging questions.

So it was with Perry, who got no more than three minutes into his argument on behalf of UPS before Rendell interrupted.

Perry was up from Washington, where he is a partner at Gibson, Dunn & Crutcher L.L.P., to try to persuade the Third Circuit to reverse a ruling by a federal judge in Pittsburgh granting class-action status to a group of disabled former UPS workers.

If Perry had been worried about a grilling from O'Connor, it did not happen. Rendell and Scirica dominated questioning.

O'Connor asked one question of him: whether recent amendments to the disabilities law affected the case. Perry said the impact was negligible because the changes cover claims after Jan. 1.

O'Connor's most pointed questions were for Thomas W. Patton, a federal public defender from Pittsburgh.

Patton represented John Burkey, a convicted drug offender, who had appealed the decision of a federal judge in Pittsburgh who denied his habeas corpus petition challenging a long prison term. Habeas corpus litigation involves a federal criminal appeal alleging a violation of a fundamental constitutional right.

O'Connor wasn't buying: "Your client is presently released. This court cannot overturn his sentencing. Why aren't you going back before his sentencing judge? I just don't understand that."

Patton explained that the petition had to be filed in the federal court where Burkey was released. Burkey's sentencing judge is in Ohio, Patton said, and "we'd have to relitigate this before the sentencing judge."

"But the sentencing judge can consider it," replied O'Connor.

As usual, the appeals panel did not decide the cases.

O'Connor, Scirica and Rendell are to meet again today for a final oral argument. She will also help the Third Circuit panel decide 12 other appeals based on the filed legal briefs, without oral argument.

Although yesterday's appearance was O'Connor's first in Philadelphia, the retired justice has sat on seven other U.S. Circuit Court panels around the country.

O'Connor, 78, stepped down from the high court Jan. 31, 2006, after almost 25 years, to care for her husband of 56 years, John Jay O'Connor 3d, who has Alzheimer's disease.

As for Perry, the veteran litigator said he learned two weeks ago that O'Connor would be on the panel. He said the justice's presence made no difference in his presentation or his mental health. "I always get nervous before oral arguments."