United States v. Safehouse
| Decision Date | 24 March 2021 |
| Docket Number | No. 20-1422,20-1422 |
| Citation | 991 F.3d 503 (Mem) |
| Parties | UNITED STATES of America v. SAFEHOUSE, a Pennsylvania nonprofit corporation; José Benitez, as President and Treasurer of Safehouse Safehouse, a Pennsylvania nonprofit corporation v. U.S. Department of Justice; William P. Barr, in his official capacity as Attorney General of the United States; and William M. McSwain, in his official capacity as U.S. Attorney for the Eastern District of Pennsylvania United States of America, U.S. Department of Justice, United States Attorney General William P. Barr, and the United States Attorney for the Eastern District of Pennsylvania William M. McSwain, Appellants |
| Court | U.S. Court of Appeals — Third Circuit |
John T. Crutchlow, Esq., Gregory B. David, Esq., Eric D. Gill, Esq., Bryan C. Hughes, Esq., Erin E. Lindgren, Esq., William M. McSwain, Esq., Office of United States Attorney, Philadelphia, PA, for Plaintiff-Appellant and Third Party-Appellants United States Department of Justice, William M. McSwain.
Jacob Eden, Esq., Ronda B. Goldfein, Esq., Yolanda F. Lollis, Esq., Adrian M. Lowe, Esq., AIDS Law Project of Pennsylvania, Philadelphia, PA, Ilana H. Eisenstein, Esq., Ben C. Fabens-Lassen, Esq., Rachel A.H. Horton, Esq., Courtney G. Saleski, Esq., DLA Piper, Philadelphia, PA, Peter Goldberger, Esq., Ardmore, PA, Seth F. Kreimer, Esq., University of Pennsylvania School of Law, Philadelphia, PA, Thiru Vignarajah, Esq., DLA Piper, Baltimore, MD, for Defendant-Appellee Safehouse, A Pennsylvania Nonprofit Corporation.
Jacob Eden, Esq., Ronda B. Goldfein, Esq., Yolanda F. Lollis, Esq., Adrian M. Lowe, Esq., AIDS Law Project of Pennsylvania, Philadelphia, PA, Ilana H. Eisenstein, Esq., Ben C. Fabens-Lassen, Esq., Rachel A.H. Horton, Esq., Courtney G. Saleski, Esq., DLA Piper, Philadelphia, PA, Peter Goldberger, Esq., Ardmore, PA, for Defendant-Appellee Jose Benitez, As President and Treasurer if Safehouse.
Gregory B. David, Esq., Eric D. Gill, Esq., Bryan C. Hughes, Esq., Erin E. Lindgren, Esq., William M. McSwain, Esq., Office of United States Attorney, Philadelphia, PA, for Third Party-Appellant William P. Barr.
James G. Mann, Pennsylvania House of Representatives, Harrisburg, PA, for Amicus Appellant Republican Caucus of the Pennsylvania House of Representatives.
Loren L. AliKhan, Esq., Office of Attorney General of District of Columbia, Washington, DC, for Amici Appellees District of Columbia, State of California, State of Delaware, State of Illinois, State of Michigan, State of Minnesota, State of New Mexico, State of Oregon, State of Vermont, State of Virginia, .
Jeffrey Cutler, Pro Se.
John M. Gore, Esq., Jones Day, Washington, DC, for Amici Appellants Pat Toomey, Brian Fitzpatrick, Tom Cotton, John Joyce, Fred Keller, Mike Kelly, Daniel P. Meuser, Scott Perry, Guy Reschenthaler, Lloyd Smucker, Glenn Thompson.
Trevor C. Burrus, Esq., Cato Institute, Washington, DC, for Amicus Appellee Cato Institute.
Trevor C. Burrus, Esq., Cato Institute, Washington, DC, Ezekiel R. Edwards, Esq., American Civil Liberties Union, New York, NY, for Amicus Appellee American Civil Liberties Union.
Trevor C. Burrus, Esq., Cato Institute, Washington, DC, Mary Catherine Roper, Esq., American Civil LIberties Union of Pennsylvania, Philadelphia, PA, for Amicus Appellee American Civil Liberties Union of Pennsylvania.
Jeffrey M. Harris, Esq., Consovoy McCarthy, Arlington, VA, for Amicus Appellant Drug Policy Scholars and Former Government Officials.
Michael J. Engle, Esq., Armstrong Teasdale, Philadelphia, PA, for Amici Appellees Dr. Alexis M. Roth, Dr. Stephen E. Lankenau, 5th Square.
Michael H. McGinley, Esq., Justin M. Romeo, Esq., Dechert, Philadelphia, PA, for Amicus Appellant 20 Neighborhood Civic Associations and the Fraternal Order of Police Lodge 5.
Virginia A. Gibson, Esq., Hogan Lovells US, Philadelphia, PA, for Amici Appellees King County Washington, City of New York, City of Seattle, City and County of San Francisco, City of Pittsburgh and Not Party-Amici Appellees City of Albuquerque, City of Austin, City of Oakland, City of San Diego, City of Sommerville, County of Cook Illinois, County of Multnomah, Prosecutor Washtenaw County.
Ellen C. Brotman, Esq., Philadelphia, PA, for Amici Appellees AIDS United, American Medical Association, Association for Multidisciplinary Education and Research in Substance Use and Addiction, Association of Schools and Programs of Public Health, California Society of Addiction Medicine, Drug Policy Alliance, Foundation for AIDS Research, Harm Reduction Coalition, National Alliance of State and Territorial Aids Directors, Network for Public Health, Pennsylvania Medical Society, Philadelphia County Medical Society, Positive Womens Network, Treatment Action Group, Vital Strategies.
Michael D. LiPuma, Esq., Justine Robinette, Esquire, Philadelphia, PA, for Amici Appellees Homeless Advocacy Project, Pathways to Housing Pennsylvania, Catholic Worker Free Clinic, Betheseda Project Inc., St. Francis Inn.
Jennifer MacNaughton, Esq., City of Philadelphia, Philadelphia, PA, for Amici Appellees Mayor Jim Kenney, Dr. Thomas Farley.
Brian T. Feeney, Esq., Jessica Natali Esq., Kevon Rethore, Esq., Greenberg Traurig, Philadelphia, PA, for Amicus Appellee Philadelphia Area Community Organizations.
Mark C. Fleming, Esq., Wilmer Cutler Pickering Hale & Dorr, Boston, MA, Matthew A. Hamermesh, Esq., Daniel Segal, Esq., Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, PA, for Amici Appellees Current and Former Prosecutors Law Enforcement Leaders and Former Department of Justice Official and Leaders.
Catherine M. Recker, Esq., Welsh & Recker, Philadelphia, PA, for Amicus Appellee Professor Randy Barnett.
Mira E. Baylson, Esq., Cozen O'Connor, Philadelphia, PA, for Amicus Appellee Religious Leaders in Philadelphia and Beyond.
Thomas A. Leonard, IV, Esq., Cozen O'Connor, Philadelphia, PA, for Amicus Appellee Friends and Family of Victims of Opioid Addiction.
Present: SMITH, Chief Judge, and McKEE, AMBRO, CHAGARES, HARDIMAN, GREENAWAY, JR., SHWARTZ, RESTREPO, BIBAS, MATEY, PHIPPS, and ROTH,1 Circuit Judges
The petition for rehearing filed by Appellees in the above-captioned case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc is DENIED . Judges McKee, Restrepo, and Roth would have granted the petition.
Ultimately, the meaning of 21 U.S.C. § 856(a)(2) must be decided by Congress. However, that is no reason for us not to hear this case en banc . Until Congress acts, Safehouse and others who attempt the kind of therapeutic response that is at issue here will continue to risk substantial prison sentences.
The District Court was the first in the country to interpret 21 U.S.C. § 856(a)(2) and numerous jurisdictions around the country are considering the same kind of therapeutic intervention that now places Safehouse in prosecutorial crosshairs. Even if the Majority's analysis is correct, this declaratory judgment action is too important to deny en banc review by the entire court. The Majority opinion will be studied by other jurisdictions around the country where entities like Safehouse are considering similar therapeutic responses to the life-threatening opioid epidemic that is engulfing so many communities and destroying so many lives.2
Yet, by denying the Petition for Rehearing that has been filed, we declare that the issue is not sufficiently important for the entire court to consider en banc . Hopefully, legislation will clarify the meaning of 21 U.S.C. § 856(a)(2), but until that day comes, we owe it to these parties and to communities within our jurisdiction to adjudicate this matter en banc . Moreover, for the reasons so cogently set forth in Judge Roth's dissent, which I will briefly elaborate upon, I believe there are problems with the Majority's analysis. Independent of the sweeping importance of this matter, those problems counsel rehearing. However, whether the Majority or Dissent is correct, few other cases will merit en banc review as much as this one. I therefore dissent from the denial of the Petition for Rehearing.
The Majority proceeds as if this statute is so clear and unambiguous that resort to legislative history and canons of statutory construction is not appropriate; that simply is not so. Four judges have now examined the language of 21 U.S.C. § 856(a)(2). Two interpret it one way and two interpret it another. In a very thorough and well-reasoned opinion, the District Court painstakingly examined the statutory text as well as several doctrines of statutory construction and explained why § 856(a)(2) is ambiguous. In resolving that ambiguity, the District Court explained why the statute cannot reasonably be interpreted as an expression of congressional intent to criminalize what all agree is a therapeutic intervention by Safehouse. Judge Roth's dissent explains why she believes the District Court's interpretation of § 856(a)(2) is correct. The Majority reaches the opposite conclusion based upon its interpretation of that same language. My colleagues in the Majority claim that their conclusion is based solely on the text of the statute devoid of any and all policy considerations. That is not true. They must read words into the statute that simply are not there in order to avoid the very troubling consequences that naturally result from their rigid insistence on a strictly literal interpretation.
Safehouse is an entity whose Board of Directors is comprised of a former Governor of Pennsylvania, an academician, and prominent evangelists and theologians. The Advisory Committee includes the...
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