Orie v. District Attorney Allegheny County, 110619 FED3, 17-1832

Docket Nº:17-1832
Attorney:James E. DePasquale [ARGUED] Counsel for Appellant. Ronald M. Wabby, Jr. [ARGUED] Office of the District Attorney of Allegheny County Counsel for Appellees.
Judge Panel:Before: JORDAN, BIBAS, and MATEY, Circuit Judges.
Case Date:November 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

JANINE M. ORIE, Appellant



No. 17-1832

United States Court of Appeals, Third Circuit

November 6, 2019

ARGUED June 5, 2019

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-16-cv-0233) District Judge: Hon. Mark R. Hornak

James E. DePasquale [ARGUED] Counsel for Appellant.

Ronald M. Wabby, Jr. [ARGUED] Office of the District Attorney of Allegheny County Counsel for Appellees.

Before: JORDAN, BIBAS, and MATEY, Circuit Judges.



In this case, Janine M. Orie asks us to excuse her failure to object to a Magistrate Judge's Report & Recommendation ("R&R"). The R&R was ultimately adopted by the District Court and prompted the dismissal of her petition for a writ of habeas corpus. Specifically, Janine1 urges us to conclude that the District Court should have granted her motion under Federal Rule of Civil Procedure 60(b)(1) to allow her to file objections to the R&R because her earlier neglect was excusable. She further asks us to hold that the proper standard of review of the R&R is de novo because the District Court reviewed it de novo. Of course, she also asserts that the R&R reached the wrong conclusion. We think otherwise and will affirm.



Janine worked as a secretary in the judicial chambers of her sister Joan Orie Melvin, who, during the period relevant here, was a judge on the Superior Court of Pennsylvania. In April 2010, Janine was charged with a variety of crimes "based upon allegations that she conspired with another of her sisters, then State Senator Jane Clare Orie …, to divert the services of Jane['s] … legislative staff for the benefit of [Joan's] 2009 political campaign for a seat as a Justice on the Supreme Court of Pennsylvania" (the "2010 charges"). (App. at 328.) The 2010 charges resulted in a trial, which ended in a mistrial.

In 2011, before Janine was retried on the 2010 charges, prosecutors filed new charges against her (the "2011 charges"). The 2011 charges alleged another series of crimes, this time relating to activities in Joan's judicial chambers during the 2009 political campaign for the Supreme Court and a 2003 campaign for that same office.

Janine later faced in a single trial both the 2010 and 2011charges. She was found guilty.3 On the 2010 charges, she was sentenced to "[a] determination of guilty without further penalty" for all counts of conviction. (App. at 182.) On the 2011 charges, she was sentenced to one year "in a county intermediate punishment program" for some counts and to one year of probation for other counts. (App. at 181.)4

She appealed, and her convictions and sentences were generally affirmed.5 She then filed a petition for a writ of habeas corpus in the District Court, arguing that her retrial on the 2010 charges should have been barred by the Double Jeopardy Clause of the Constitution. The case was referred to a Magistrate Judge, who wrote the R&R now in question, recommending dismissal of the petition. The R&R concluded that Janine was not "in custody" for purposes of establishing habeas jurisdiction because she challenged only the convictions on the 2010 charges but had received no penalty for them.

Although the R&R advised the parties that they had 14 days to file any objections, no objections were filed, and the District Court adopted the R&R. The Court's order said, in relevant part:

AND NOW, this 30th day of June, 2016, after the petitioner, Janine M. Orie, filed a petition for a writ of habeas corpus, and after a Report and Recommendation was filed by the United States Magistrate Judge granting the parties a period of time after being served with a copy to file written objections thereto, and no objections having been filed, and upon independent review of the petition and the record and upon consideration of the Magistrate Judge's Report and Recommendation, which is adopted as the opinion of this Court,

IT IS ORDERED that the petition for a writ of habeas corpus filed by petitioner is dismissed[.]

(App. at 23 (citations omitted).)

About two weeks later, however, Janine filed a motion pursuant to Rule 60(b)(1) on the ground that there had been a communications mix-up that prevented her lawyer from filing objections.6 The lawyer provided an explanation, saying he had given the R&R to his legal assistant, assuming that the assistant would send the R&R to Janine and that Janine would inform him if she wanted to file objections. The legal assistant did not forward the R&R, however, and the lawyer never followed up with Janine. Janine learned of the District Court's dismissal of her habeas petition by reading about it in the news. She then immediately contacted her lawyer "to ask if objections and a motion for reconsideration could be filed." (App. at 25.) Objections to the R&R were attached to the Rule 60(b)(1) motion and filed with the Court.

The District Court denied the motion. It decided that Janine did not meet the standard for Rule 60(b)(1) relief and that, in any event, her objections failed on the merits. This timely appeal followed. We granted a certificate of appealability as to whether the District Court erred in denying relief under Rule 60(b) and in dismissing the petition for lack of jurisdiction. We also directed the parties to address how Janine's failure to timely object to the R&R might affect our standard of review.

II. Discussion7

Janine makes three arguments on appeal. First, she insists that she qualifies for Rule 60(b)(1) relief. Second, she asserts that we should review the R&R de novo. Third and finally, she argues that the District Court erred in dismissing her petition for lack of jurisdiction because she was "in custody." We disagree on each point.

A. The Petitioner Is Not Entitled to Rule 60(b)(1) Relief

The first issue is whether the District Court should have granted Janine's Rule 60(b)(1) motion. Under Rule 60(b)(1), courts may "grant a party relief from a final judgment based upon, inter alia, 'excusable neglect.'" Nara v. Frank, 488 F.3d 187, 193 (3d Cir. 2007) (quoting Fed.R.Civ.P. 60(b)(1)). "The test for 'excusable neglect' is equitable, and requires us to weigh the 'totality of the circumstances.'" Id. at 193-94 (citation omitted). Courts are to consider the following factors: "1) the danger of prejudice to the other party; 2) the length of the delay and its potential impact on judicial proceedings; 3) the reason for the delay-and whether it was within the movant's control; and 4) whether the movant acted in good faith." Id. at 194. We review a Rule 60(b)(1) decision for abuse of discretion. Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008).

Janine argues that there is excusable neglect here because her "counsel, a sole practitioner, prepared and...

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