Villanova University School of Law: Digital Repository

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 2-3-2025 Joseph Elad v. Truist Bank Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Joseph Elad v. Truist Bank" (2025). 2025 Decisions. 96. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/96 This February 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 PRECEDENTIALUNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT___________No. 24-2242__________JOSEPH B. ELAD, Sui Juris,Appellantv.TRUIST BANK; JOSHUA COLLINS, Vice President, Truist Bank; BALLARD SPAHR LLP; BRITTANY M. GIUSINI, Esquire, Ballard Spahr LLP; ELIZABETH A. SLOANE, Esquire, Ballard Spahr LLP; JANET Z. CHARLTON, Esquire, McGabe, Weisberg & Conway, P.C.; MCCABE, WEISBERG AND CONWAY, P.C.; LISA G. FONTELLO, Prothonotary of the Delaware Superior Court; JUDGE ERIC M. DAVIS, of the Delaware Superior Court; VIVIAN L. MEDINILLA, of the Delaware Superior Court; JUDGE DANIELLE J. BRENNAN, of the Delaware Superior Court; SCOTT T. PHILLIPS, Sheriff, New Castle County Sheriff's Office; JESSICA HEPBURN, Esquire, Ballard Spahr LLP; COLLEEN REDMOND, Prothonotary of the Delaware Superior Court; RON FIORVANATI, Chief Deputy Sheriff; SR. MICHAEL E. KOZIKOWSKI, Recorder of Deeds; JUSTICE GARY F. TRAYNOR, Supreme Court of the State of Delaware____________________________________On Appeal from the United States District Courtfor the District of Delaware(D.C. Civil Action No. 1:23-cv-01360)District Judge:  Honorable Gregory B. Williams____________________________________Submitted Pursuant to Third Circuit LAR 34.1(a)January 29, 2025Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges(Opinion filed February 3, 2025)2___________OPINION*___________PER CURIAMJoseph Elad appeals the District Court’s order dismissing his complaint and denying various outstanding motions.  We will affirm the District Court’s judgment.I.This case arises from foreclosure and ejectment proceedings against Elad in Delaware state court.1 Elad sued several defendants in the District Court for alleged conduct during the proceedings that led to him being evicted from his property.  He brought claims against Truist Bank and its vice president, the law firms and attorneys that represented Truist Bank and its predecessor entity in the proceedings, Delaware judges and judicial employees, the New Castle County recorder of deeds, and the New Castle County Sheriff and Chief Deputy Sheriff.  Elad sought monetary damages and injunctive relief.  Elad asserted that his claims arose under 1) the U.S. Constitution; 2) various federal criminal statutes; 3) the Hobbs Act; and 4) the Administrative Procedure Act. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does notconstitute binding precedent.1 See, e.g., In re Elad, 312 A.3d 735 (Del. 2024); Truist Bank v. Elad, No. N23C-02-243,2023 WL 8543413 (Del. Super. Ct. Dec. 11, 2023); Truist Bank v. Elad, No. N23C-02-243, 2023 WL 8582664 (Del. Super. Ct. Dec. 11, 2023); Truist Bank v. Elad, No. N23C-02-243, 2023 WL 7276648 (Del. Super. Ct. Nov. 3, 2023); Truist Bank v. Elad, No.N23C-02-243, 2023 WL 7280155 (Del. Super. Ct. Nov. 3, 2023); Branch Banking & Tr.Co. v. Elad, No. N17L-06-100, 2022 WL 3442214 (Del. Super. Ct. Aug. 17, 2022). 3  He claimed that during the state court proceedings, he 1) was never served, 2) that he was denied due process, equal protection, and a jury trial, 3) that the foreclosure and sale of his property were illegal, and 4) that the state court judges involved in the proceedings committed criminal and unconstitutional acts, failed to respond to his filings, and issued orders without authority.  Elad averred that he mailed copies of the summons and complaint to each defendant, and that he requested return receipts.     Several defendants filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(1), (5), and (6), and some defendants answered the complaint.  Meanwhile, Elad filed several motions, including requests to enter default judgment against the defendants for failing to answer the complaint timely, and a “Writ of Habeas Corpus” signed by another individual, Andrew Pritchard.  Dist. Ct. Dkt. Nos. 19, 22, 26, 28, 31, 32, 52, 55, 57, 59, 61. The District Court construed the action as having been brought under 42 U.S.C. § 1983.  It granted the dismissal motions and sua sponte dismissed the remaining defendants.  First, it concluded that the judicial officers were entitled to judicial immunity, and that the judicial employees were entitled to quasi-judicial immunity because they acted “in accordance with their duties or at the direction of a judicial officer.”  Dist. Ct. Dkt. No. 62 at 5.  It also concluded that the County Sheriffs and the Recorder of Deeds were entitled to quasi-judicial immunity.  The Court dismissed the claims against the remaining defendants after concluding that Elad failed to allege that they acted under the color of state law, that Elad could not invoke criminal statutes in the civil suit, and that “the Administrative Procedure Act and Hobbs Act [were] wholly  4  inapplicable to the facts alleged.”  Dist. Ct. Dkt. No. 62 at 7.  The Court also found that further amendment would be futile.  Finally, the Court denied Elad’s pending motions.   Elad appealed.    II. We have jurisdiction under 28 U.S.C. § 1291.  We review the dismissal of the complaint de novo, and we may affirm the District Court for any reason supported by the record.  See Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018); Laurel Gardens, LLC v. Mckenna, 948 F.3d 105, 116 (3d Cir. 2020).  We accept the facts alleged in the complaint as true and determine whether the complaint, viewed in the light most favorable to Elad, states enough facts to support a plausible claim for relief.  See Krieger, 890 F.3d at 437.  Legal conclusions and “recitals of the elements of a cause of action” that are “supported by mere conclusory statements” are not sufficient to survive dismissal.  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We review the denial of entry of default judgment for abuse of discretion.   Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).  The court considers “(1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether [the] defendant's delay is due to culpable conduct.”  Id. III. First, Elad argues that the Court erred by construing his complaint as brought under 42 U.S.C. § 1983 instead of the Administrative Procedure Act.  But Elad alleged no facts supporting a claim under the Administrative Procedure Act, as he did not  5  challenge a federal agency’s decision.2  Rather, he asserted that Delaware judicial employees, New Castle County employees, and private individuals deprived him of his constitutional rights.  Thus, the Court properly construed the complaint as bringing § 1983 claims.  See Castro v. United States, 540 U.S. 375, 381-82 (2003); see also Lewis v. Att’y Gen., 878 F.2d 714, 722 n.20 (3d Cir. 1989) (explaining that we judge a pleading on its substance, rather than its form or label). Elad also challenges the District Court’s dismissal of his claims against the judicial employees and county officials based on immunity.  He claims that judicial immunity did not apply because he sued these defendants in their individual capacities, not their official capacities.  Elad is mistaken.  Judicial and quasi-judicial immunity apply to § 1983 claims against officials sued in their individual capacities.  See, e.g., Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184-85 (3d Cir. 2009).   As for the remaining defendants, Elad failed to plead that they acted under color of state law to state a claim under § 1983.  See West v. Atkins, 487 U.S. 42, 48 (1988).    And Elad does not meaningfully dispute the District Court’s ruling that he could not enforce criminal statutes in his civil suit against any of the defendants.  See United States v. Albertson, 645 F.3d 191, 195 (3d Cir. 2011).   Next, Elad maintains that the District Court’s dismissal of his “Writ of Habeas Corpus” was error.  Dt. App. Dkt. No. 14 at 14.  Elad did not sign the petition; rather, it  2 Under the Administrative Procedure Act, an aggrieved party may seek judicial review of a final agency action.  See 5 U.S.C. §§ 702, 704.  An “agency” is an “authority of the Government of the United States.”  Id. § 701(b).   6  was signed by and submitted on behalf of an individual who was not a party to the case.  See Fed. R. Civ. P. (11)(a).  Additionally, the “Writ of Habeas Corpus” raised the same errors as the complaint.  Dist. Ct. Dkt. No. 55; see also Dist. Ct. Dkt. No. 14.  We discern no error.  Nor did the District Court err by denying Elad’s motion “for Judicial Notice of Adjudicative Fact,” in which he asked the Court to confirm or deny the language of a judge’s oath.  Dist. Ct. Dkt. No. 61. Finally, Elad argues that the District Court erred by denying his requests for entry of default judgment.  We discern no abuse of discretion, as the defendants averred that Elad did not serve them properly, and they presented litigable arguments that the complaint failed to state a claim for relief.  Cf. Chamberlain, 210 F.3d at 164 (affirming the denial of a default judgment motion because the plaintiff was not prejudiced, the defendant alleged a litigable defense to the complaint counts, and there was no evidence suggesting that the defendant’s delay was willful or in bad faith).  Accordingly, we will affirm the District Court’s judgment.  Elad’s motions for default judgment are denied.  To the extent that Elad seeks other relief on appeal, it is denied.  Appellees’ January 2, 2025 motion to file a supplemental appendix is granted. 

English

Joseph Elad v. Truist Bank

USDC for the Eastern District of Pennsylvani

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-2-2025 Quentin Salmond v. Nathan Williams Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Quentin Salmond v. Nathan Williams" (2025). 2025 Decisions. 3. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/3 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.            NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT  __________  No. 23-3131 __________  QUENTIN SALMOND,    Appellant  v.  NATHAN WILLIAMS; THE PHILADELPHIA POLICE DEPARTMENT; THE PHILADELPHIA DISTRICT ATTORNEY OFFICE ____________________________________  On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil Action No. 2:23-cv-03806) District Judge:  Honorable Gene E. K. Pratter ____________________________________  Submitted Pursuant to Third Circuit LAR 34.1(a) November 1, 2024  Before: KRAUSE, PHIPPS, and ROTH, Circuit Judges  (Opinion filed: January 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 PER CURIAM Quentin Salmond, a state prisoner proceeding pro se, appeals an order of the District Court dismissing his complaint.  For the reasons that follow, we will affirm. In 2014, Quentin Salmond was convicted of third-degree murder and conspiracy in Pennsylvania state court.  Last year, he filed a complaint pursuant to 42 U.S.C. § 1983 against the Philadelphia Police Department, the Philadelphia District Attorney’s Office, and former police officer Nathan Williams.  Salmond claimed that the defendants failed to disclose exculpatory cell phone records obtained during the criminal investigation.  He averred that phone records received by Williams would prove that he was not in the area of the homicide when it occurred and that he did not communicate with anyone involved.  Salmond also alleged that an informant told Williams that Salmond confessed to the murder at a location in Philadelphia, but the records would show that he was not in Philadelphia at that time.   Salmond claimed that Williams, among other things, maliciously prosecuted him,  falsely testified at trial that he did not know the results of an investigation into the phone records, and violated Brady v. Maryland, 373 U.S. 83 (1963).  He also claimed violations of his rights by the District Attorney’s Office and the Police Department for failing to provide the phone records and/or information about deals with the informant.  Salmond further claimed that the District Attorney’s Office and the Police Department continued to violate his rights post-conviction by denying his requests for this information, and information regarding misconduct by Williams, under Pennsylvania’s Right-to-Know  3 Law.  Salmond sought money damages and declaratory and injunctive relief, including an order compelling the defendants to furnish the alleged Brady material.   The District Court screened Salmond’s complaint pursuant to 28 U.S.C.  § 1915(e)(2)(B) and dismissed it for failure to state a claim for relief.  The District Court ruled that Salmond’s claims were barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), and its progeny, which prohibit actions under § 1983 where success would necessarily imply the invalidity of a conviction or sentence, unless the conviction or sentence has been invalidated.  The District Court dismissed the complaint without prejudice to re-filing in the event Salmond’s sentence was invalidated.  This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.  We exercise plenary review of the dismissal of a complaint under § 1915(e)(2).  Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). Salmond appears to concede on appeal that his monetary claims are barred by Heck.  He argues that his action to compel the defendants to produce evidence is not barred because a favorable ruling would not necessarily imply the invalidity of his conviction.  Salmond states that his conviction may be overturned later, but only after further proceedings in state court.  This argument lacks merit.  As the District Court stated, Salmond’s constitutional claims stem from an alleged failure to disclose evidence in violation of Brady.  Because “Brady evidence is, by definition, always favorable to the defendant and material to his guilt or punishment,” a successful Brady claim “necessarily  4 yields evidence undermining a conviction.”  Skinner v. Switzer, 562 U.S. 521, 536 (2011).  The Heck bar applies “no matter the relief sought (damages or equitable relief).”  Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Salmond’s other arguments on appeal are unavailing.  Salmond likens his request for evidence to a request for DNA testing, which may be pursued in a § 1983 action.  However, unlike a Brady violation, DNA testing may not yield favorable evidence.  See  Skinner, 562 F.3d at 525.  Salmond also asserts that the District Court erred in dismissing his malicious prosecution claim based on false testimony at trial, but a claim for malicious prosecution is barred under Heck.  Heck, 512 U.S. at 484-86.  In addition, Salmond’s contention that the District Court showed bias when it commented in its opinion on the facts related to his claims is meritless. Salmond also appears to argue that the responses to his requests for records under Pennsylvania’s Right-to-Know Law by the District Attorney’s Office and the Police Department violated his right to procedural due process, and that the statute is constitutionally infirm.  The Right-to-Know Law, however, provides for judicial review in state court.  See 65 Pa. Stat. § 67.1302.(a).  Where a state has provided seemingly adequate procedural protections, a plaintiff cannot skip that process and seek relief in federal court.  Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).  Finally, Salmond contends that the District Court should have afforded him leave to amend his complaint, but he has not called into question the District Court’s conclusion that amendment would be futile.  5 Accordingly, we will affirm the judgment of the District Court. 

Quentin Salmond v. Nathan Williams

Zodiac Pool Systems LLC v. US Department of Energy

USA v. Kenneth Graham

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-16-2025 John Hartmann v. Commissioner of Internal Revenue Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "John Hartmann v. Commissioner of Internal Revenue" (2025). 2025 Decisions. 50. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/50 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.          NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________  No. 24-2289 __________  JOHN A. HARTMANN,    Appellant  v.  COMMISSIONER OF INTERNAL REVENUE ____________________________________  On Appeal from the United States Tax Court (U.S. Tax Court No. 23-06955) Tax Court Judge:  Honorable Courtney D. Jones ____________________________________  Submitted Pursuant to Third Circuit LAR 34.1(a) November 12, 2024  Before: RESTREPO, MATEY, and CHUNG, Circuit Judges  (Opinion filed: January 16, 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  John A. Hartmann appeals pro se from the United States Tax Court's grant of summary judgment in favor of the Commissioner of Internal Revenue as to his tax liability and the proposed levy against him.  For the following reasons, we will affirm. I.  Hartmann failed to pay his taxes due in 2016.  The Internal Revenue Service (“IRS”) assessed a tax delinquency against him and issued a proposed levy to collect the taxes, along with interest.  After the IRS notified Hartmann of its decision, Hartmann requested a Collection Due Process (“CDP”) hearing.  See generally 26 U.S.C. § 6330.  Hartmann requested that the IRS consider an installment agreement, offer in compromise, or that he could not pay the tax balance as collection alternatives, and he stated that the tax penalties were not reasonable.  Accordingly, the IRS Office of Appeals scheduled the hearing. Meanwhile, the IRS sent Hartmann letters telling him to submit the offer in compromise form, a collection information statement, his tax returns for years 2018 through 2021, and proof of current estimated tax payments for the year to date (2022).  A Settlement Officer held the CDP hearing.  Because Hartmann had not yet submitted all the requested documents, the Officer told him what he still needed to submit and scheduled a follow-up conference.  At the follow-up conference, the Officer still had not received all the requested tax returns, although Hartmann stated that he had sent his returns for 2018 and 2019, and that he was working on his returns for 2020 and 2021. The Officer also informed Hartmann that to be eligible for a requested collection  3 alternative, Hartmann had to file the requisite tax returns and submit proof of estimate payments for tax year 2022.  The Officer gave Hartmann more time to submit the documents. Hartmann submitted his collection information statement, in which he stated he made approximately $14,000 monthly and spent about $8,000 monthly, meaning he could pay $6,000 monthly toward his tax liabilities.  The Officer and Hartmann had more follow-up phone conversations, where the Officer informed Hartmann that she had not received any of the requested tax returns.  Hartmann stated he had already submitted his 2018, 2019, and 2020 tax returns, and he was still preparing his 2021 return.  Over a month later, the Officer again reviewed Hartmann’s file and noted that all the requested tax returns remained unfiled.  The IRS Office of Appeals sustained the proposed levy because Hartmann failed to submit his tax returns and proof of estimated payments, and he showed the ability to pay $6,000 per month toward his tax liabilities.  Hartmann petitioned the Tax Court for review.  Then, the Commissioner of Internal Revenue moved for summary judgment.  Tax Court granted the motion and concluded that the IRS Office of Appeals did not abuse its discretion by sustaining the levy and rejecting a collection alternative.  Hartmann appealed to this Court.1  1 Hartmann has filed several appeals in similar cases before the Tax Court.  See generally Hartmann v. Comm’r, 785 F. App’x 906 (3d Cir. 2019); Hartmann v. Comm’r, 667 F. App’x 374 (3d Cir. 2016) (per curiam); Hartmann v. Comm’r, 638 F.3d 248 (3d Cir. 2011) (per curiam); Hartmann v. Comm’r, 351 F. App’x 624 (3d Cir. 2009) (per curiam).   4 II. We have jurisdiction under 26 U.S.C. § 7482(a)(1).  We review the Tax Court’s summary judgment decision de novo.  Hartmann v. Comm’r, 638 F.3d 248, 249 (3d Cir. 2011) (per curiam).  When, as here, the underlying tax liability is not at issue, we review CDP decisions for abuse of discretion.2  See Kindred v. Comm’r, 454 F.3d 688, 694 (7th Cir. 2006).  The Tax Court may grant summary judgment if there is no genuine dispute as to any material fact and judgment could be entered as a matter of law.  Hartmann, 638 F.3d at 249. Hartmann raises two challenges to the Tax Court’s decision.  First, he argues that he was not informed that the failure to pay his estimated 2022 tax payments would be fatal to securing a collection alternative. His argument is unsupported by the record.  The Settlement Officer informed Hartmann multiple times that he needed to file his 2018-2021 tax returns and make estimated tax payments for the 2022 tax year to be eligible for a collection alternative.  Second, Hartmann argues that he attempted to send his 2020 tax return, but the mail was not delivered.  Even if that were true, Hartmann still failed to submit the other required documents, including his tax returns for 2018, 2019, and 2021, and his proof of estimated payments for 2022.3  2 Although Hartmann stated in the CDP hearing request form that he did not believe the tax penalties were reasonable, he did not offer any evidence to support his claim, nor did he raise the issue in his petition to the Tax Court.  See 26 U.S.C. § 6651(a); see also Tax Court Rule 331(b)(4) (“Any issue not raised in the assignments of error shall be deemed to be conceded.”).  3 Hartmann did not dispute this in his Tax Court petition nor in his opposition to summary judgment; he only disputed that he failed to submit his 2020 tax return.  5 Requiring Hartmann’s tax returns and payment compliance for collection alternative eligibility was within the IRS’s discretion.  See Hartmann, 638 F.3d at 250-51.  We agree with the Tax Court that the IRS did not abuse its discretion by sustaining the proposed levy because Hartmann failed to provide the necessary documentation and did not otherwise show he was eligible for a collection alternative.  Because Hartmann’s arguments on appeal did not demonstrate the existence of a genuine issue of material fact, or that the IRS is not entitled to judgment as a matter of law, we will affirm the Tax Court’s grant of summary judgment.

John Hartmann v. Commissioner of Internal Revenue

USDC for the Middle District of Pennsylvani

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-29-2025 Jack Morgan v. Warden Allenwood USP Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Jack Morgan v. Warden Allenwood USP" (2025). 2025 Decisions. 79. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/79 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.          NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________  No. 24-1508 __________  JACK WILLIAM MORGAN,     Appellant  v.  WARDEN OF USP-ALLENWOOD ____________________________________  On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1:24-cv-00094) District Judge:  Honorable Karoline Mehalchick ____________________________________  Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 29, 2025  Before: RESTREPO, MATEY, and CHUNG, Circuit Judges  (Opinion filed: January 29, 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  Federal prisoner Jack Morgan appeals pro se from the decision of the United States District Court for the Middle District of Pennsylvania (“the MDPA”) dismissing his habeas petition filed pursuant to 28 U.S.C. § 2241.  We will affirm that judgment. I.  Morgan is serving a life sentence imposed by the United States District Court for the District of Nevada (“the DNV”) in 2018.  In 2022, the Federal Bureau of Prisons (“BOP”) charged him with possessing a dangerous weapon after a knife was found in his cell.  Shortly thereafter, he appeared before a Discipline Hearing Officer (“DHO”), who sustained the charge and imposed the following sanctions:  90 days of disciplinary segregation, a $120 fine, and loss of commissary, mattress, and phone privileges for 90 days.  In January 2024, at which point Morgan was incarcerated at a federal prison in the Middle District of Pennsylvania, he filed a pro se habeas petition in the MDPA pursuant to § 2241.  The petition claimed that a prison official had planted the knife in Morgan’s cell because he (Morgan) had refused to reenter the general prison population.  Based on this claim, Morgan sought to have the disciplinary incident report and the fine expunged from his prison record, and for the prison official to be disciplined.  The BOP opposed the petition, arguing that the MDPA “lacks § 2241 jurisdiction and cannot decide Morgan’s claim because the DHO did not impose the sanctioned loss of good conduct time.”  Dist. Ct. Dkt. No. 8, at 1.  Thereafter, on March 5, 2024, the 3  District Court dismissed the petition, stating that “Morgan fails to set forth a cognizable due process claim as the disciplinary sanctions he received do not implicate any liberty interests that are protected by the Due Process Clause.”  Dist. Ct. Dkt. No. 9, at 2.  This timely appeal followed. II.  We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).1  We exercise plenary review over the MDPA’s legal conclusions and review its factual findings for clear error.  See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).  We may affirm on any basis supported by the record.  See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). Section 2241 gives a district court jurisdiction over “the petition of a federal prisoner who is [attacking] not the validity but the execution of his sentence.”  Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012).  Although a constitutional challenge to prison disciplinary proceedings that result in the loss of good-conduct-time credits qualifies as an attack on the execution of the prisoner’s sentence (because that sanction can affect the sentence’s duration), see Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008) (per curiam), no such sanction is at issue in Morgan’s case.  Furthermore, none of the sanctions that Morgan did receive contradict the terms of the sentencing court’s  1 Morgan does not need a certificate of appealability to proceed with this appeal.  See United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012). 4  judgment.  Accordingly, the MDPA did not err in dismissing Morgan’s § 2241 petition.  See Cardona, 681 F.3d at 537 (“In order to challenge the execution of his sentence under § 2241, Cardona would need to allege that [the] BOP’s conduct was somehow inconsistent with a command or recommendation in the sentencing judgment.”).  In view of the above, we will affirm the District Court’s Judgment.2  2 On September 20, 2024, this Court denied Morgan’s motion for appointment of counsel on appeal.  To the extent that his appellate brief once again requests appointment of counsel, that request is denied.    

Jack Morgan v. Warden Allenwood USP

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 2-12-2025 Kevin Marsh v. Attorney General United States of America Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Kevin Marsh v. Attorney General United States of America" (2025). 2025 Decisions. 126. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/126 This February 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. 24-1722 ________________   KEVIN ANTHONY MARSH,                                                      Petitioner  v.  ATTORNEY GENERAL UNITED STATES OF AMERICA   _______________________  On Petition for Review of a Decision of the   Board of Immigration Appeals   BIA-1 : A060-010-154 Immigration Judge: Pallavi Shirole __________________________  Submitted under Third Circuit L.A.R. 34.1(a)  January 23, 2025  Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges   ________________  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   SMITH, Circuit Judge. I. Kevin Marsh seeks review of a Board of Immigration Appeals decision denying his motion to reopen his final removal order.1 We will dismiss in part and otherwise deny the petition on procedural grounds. II. Marsh is a Jamaican citizen who came to New York as a conditional resident in 2008, eventually becoming a permanent resident in 2010. In May 2019, Marsh pled guilty to a 2017 drug offense in violation of New Jersey Code Annotated §§ 2C:35-5a(1) and 2C:35-5b(10)(b) and was sentenced to three years in prison. Shortly after completing his sentence, the Department of Homeland Security issued a Notice To Appear charging him with removability under 1) 8 U.S.C. § 1227(a)(2)(B)(i), as a non-citizen convicted of a controlled substance offense; and 2) 8 U.S.C. § 1227(a)(2)(A)(iii), as a non-citizen convicted of an aggravated felony.  We include only a brief summation of the procedural events. Marsh retained Stephanie Norton to represent him in the immigration proceedings. Norton appeared before the Immigration Judge and contested Marsh’s removability based on the theory that his conviction was not a categorical match for either charge of  1 This Court has jurisdiction over the petition for review under 8 U.S.C. § 1252(a)(1), (a)(2)(D). See Kucana v. Holder, 558 U.S. 233, 250 (2010) (affirming that courts of appeals “retain jurisdiction to review” the Board’s decisions on motions to reopen).  3  removability because the New Jersey statute categorized more drugs as controlled substances than federal law and was indivisible as to the identity of the substance. The IJ sustained the removability charges and ordered Marsh to be deported to Jamaica. The Board affirmed the IJ’s decision in a final ruling on July 19, 2021.  On July 28, 2021, Marsh filed a pro se petition for review with our Court appealing the Board’s dismissal. Norton also filed a motion to reconsider with the Board on August 18, 2021, for Marsh. On August 24, 2022, the Board denied the motion.  In September 2022, Norton realized she could have argued before the IJ that the New Jersey definition of marijuana at the time of conviction was broader than the federal definition of marijuana, i.e. a “hemp overbreadth” argument. To correct her oversight, she helped Marsh draft and file a Rule 28(j) letter to this Court explaining the new argument. On February 14, 2023, we deemed the argument unexhausted and denied the petition for review.  On June 16, 2023, represented by new counsel, Marsh filed a motion to reopen with the Board asserting that Norton had provided him ineffective assistance of counsel by overlooking the hemp overbreadth argument. The Board denied Marsh’s motion on March 22, 2024. It concluded that the motion was untimely because it was “filed more than 90 days after we dismissed the underlying administrative appeal” in violation of 8 U.S.C § 1229a(c)(7)(C)(i). AR 003. It also determined that  4  Marsh was not entitled to equitable tolling and had failed to meet the procedural requirements for an ineffective assistance of counsel claim. Finally, the Board refrained from reopening the case sua sponte because there were no “exceptional” circumstances as required under 8 C.F.R. § 1003.2(a).  III. Before us, Marsh asserts that the Board erred by finding that his motion to reopen was untimely and procedurally defective. We turn first to Marsh’s equitable tolling argument. Notably, without a determination that tolling should be applied, Marsh missed the 90-day filing deadline by over a year.  There are two substantive requirements that must be met before we can apply equitable tolling: “(1) that [a petitioner] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). We need not consider the first requirement, Marsh’s diligent pursuit of his rights, because he clearly fails to satisfy the second. Ineffective assistance of counsel can indeed be an extraordinary circumstance for purposes of equitable tolling. Holland v. Fla., 560 U.S. 631, 649 (2010). But the requirement was not met here  5  because Marsh failed to comply with the procedural steps a non-citizen must take to use an ineffective assistance of counsel claim to equitably toll a deadline.2 To bring an ineffective assistance of counsel claim, a non-citizen must comply with three procedural requirements outlined in Matter of Lozada, 19 I. & N. Dec. 637, 638–40 (BIA 1988). Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001). A non-citizen must 1) include an affidavit attesting to the relevant facts; 2) inform former counsel of the allegations and provide counsel with the opportunity to respond; and 3) state whether a complaint has been filed against the prior attorney with the appropriate disciplinary authority and “if not, why not.” Id. at 639. Marsh failed to complete the second Lozada requirement as he gave Norton only one day to respond to his pending motion to reopen, a timeline he himself admits was insufficient. And his claim that the defect is of no moment because the purposes of the Lozada requirements were met is unpersuasive. This was not a mere technical lack of compliance; it was a complete failure to provide Norton with any chance to tell her side of the story.   Marsh also asserts that the Board erred by declining to reopen proceedings sua sponte and failing to provide a detailed reason for its decision. But the Board’s  2 Even if Marsh had satisfied the procedural requirements to bring an ineffective-assistance claim, he likely was not prejudiced by the purported error because his argument is effectively foreclosed by the Supreme Court’s decision in Brown v. United States, 602 U.S. 101 (2024). Marsh himself concedes that “[u]nfortunately, [his] case is factually similar to that of Brown  . . . .” Appellant’s Br. 33.  6  decision to decline to reopen proceedings sua sponte is “functionally unreviewable” by us because of the Board’s “essentially unlimited” discretion in this area. Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651, 655 (3d Cir. 2017). So we will dismiss this part of Marsh’s petition for review because we lack jurisdiction over it. Id. at 656. For the foregoing reasons, we will otherwise deny the petition for review. 

Kevin Marsh v. Attorney General United States of America

Richard Laird v. Secretary PA Dept Corrections

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 2-20-2025 Carl Rodgers v. Pennsylvania State Police Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Carl Rodgers v. Pennsylvania State Police" (2025). 2025 Decisions. 141. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/141 This February 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. 24-1759 ____________  CARL E. RODGERS,                            Appellant                                        v.  PENNSYLVANIA STATE POLICE; JEFFREY STINE; DEAN SHIPE; SCOTT DENISCH; SEAN MOYER; MARK MAGYAR; JOHN DOES ____________  On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 1:20-cv-02115) District Judge:  Honorable Sylvia H. Rambo ____________  Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 16, 2025 ____________  Before:  PHIPPS, FREEMAN, and CHUNG, Circuit Judges  (Filed: February 20, 2025) ____________  OPINION1 ____________ CHUNG, Circuit Judge.  1 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2  A grand jury’s issuance of a presentment or indictment creates a presumption of probable case.  To succeed on a malicious prosecution claim, a plaintiff must overcome that presumption.  Carl Rodgers argues that the District Court erred in granting summary judgment to the defendants because he presented sufficient evidence to overcome that presumption.  We disagree and will affirm. I. BACKGROUND2  On April 23, 1983, Debra Rodgers (“Debra”) went missing.  That same day, her husband, Carl Rodgers (“Rodgers”), called Debra’s mother to inquire about Debra’s whereabouts.  This prompted Debra’s family to drive to the couple’s farm and begin searching for her.  The next morning, Debra’s body was located in the woods off a remote road.  Her body had visible signs of trauma, including deep slashes across both wrists, indicative of suicide.  A knife and sheath bearing the name “Carl” were recovered nearby.  Rodgers was investigated, and a grand jury was convened to consider charging him in connection with Debra’s death.  The grand jury was not ultimately requested to issue a presentment at that time.   Over thirty years later, a Pennsylvania State Police task force met to discuss the investigation and recommended resuming it.  A grand jury again convened, and this time, issued a presentment recommending that the Commonwealth charge Rodgers with murder.3  The grand jury found probable cause that Rodgers murdered Debra and that her  2 Because we write for the parties, we recite only facts pertinent to our decision. 3 Under Pennsylvania law, “[g]rand juries issue both indictments and presentments. With indictments, the grand jury sets forth felony charges asserted by the government  3  wrists had been slashed to make her death look like a suicide.  Accordingly, Rodgers was charged and later tried for murder.  After deliberating for only an hour, the jury acquitted Rodgers.   Rodgers then brought this 42 U.S.C. § 1983 action against the Pennsylvania State Police and various officers alleging malicious prosecution under the Fourth Amendment and other causes of action.  After discovery, the defendants moved for summary judgment.  The District Court granted summary judgment on the malicious prosecution claim, holding that the evidence, viewed in the light most favorable to Rodgers, did not undermine defendants’ probable cause to prosecute Rodgers, and Rodgers failed to show the required malice to succeed on a malicious prosecution claim.  Rodgers timely appealed.   II. DISCUSSION4   after finding probable cause that a person under investigation has committed the alleged crime.  With presentments, the grand jury recommends for prosecution charges it has initiated, or it issues reports condemning official misconduct not rising to the level of a criminal offense.”  Commonwealth v. Slick, 639 A.2d 482, 484 n.1 (Pa. Super. Ct. 1994); see also 42 Pa. Cons. Stat. § 4551(a) (discussing presentments). 4  The District Court possessed subject matter jurisdiction pursuant to 28 U.S.C. § 1331.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  Our review of the District Court’s summary judgment decision is plenary.  See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 141 (3d Cir. 2017).  Summary judgment is appropriate when 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).  Although the nonmovant’s evidence “is to be believed, and all justifiable inferences are to be drawn in his favor in determining whether a genuine factual question exists,” summary judgment should be granted “unless there is sufficient evidence for a jury to reasonably find for the nonmovant.”  Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011) (internal quotation marks omitted). 4  To succeed on a Fourth Amendment malicious prosecution claim, a plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in [plaintiff’s] favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.    Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).  Under this standard, “[a] finding of probable cause is … a complete defense” to a claim of malicious prosecution.  Goodwin v. Conway, 836 F.3d 321, 327 (3d Cir. 2016). Here, Rodgers was charged as recommended by a grand jury’s presentment.  “[A] grand jury indictment or presentment constitutes prima facie evidence of probable cause to prosecute ….”  Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989).  Thus, a presentment creates a “presumption” of probable cause.  Xi v. Haugen, 68 F.4th 824, 841 (3d Cir. 2023).  This “presumption may be rebutted by a plausible allegation that the indictment was ‘procured by fraud, perjury or other corrupt means.’”  Id. (quoting Rose, 871 F.3d at 353).   The presentment contains considerable inculpatory evidence that supports a finding of probable cause.  Nonetheless, Rodgers attempts to show the use of “fraud, perjury or other corrupt means” by arguing that the defendants failed to present exculpatory or potentially exculpatory evidence to the grand jury.  This argument fails for two reasons.  First, Rodgers’s argument is based on speculation as to what forensic examination would have revealed had certain items of evidence been retained.  These 5  assertions do not create a genuine issue that the evidence was exculpatory.  Second, we have previously held that when a grand jury presentment contains facts supporting probable cause, a failure to provide exculpatory evidence to the grand jury does not demonstrate that the presentment was procured by fraud, perjury or other corrupt means.  See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 363 (3d Cir. 2003) (citing United States v. Williams, 504 U.S. 36, 51 (1992)).5  In sum, Rodgers fails to establish a genuine issue that the specified evidence was exculpatory or that the grand jury’s presentment was obtained by fraud, perjury or other corrupt means. Rodgers also points to an email chain including two of the defendants that, according to Rodgers, “appears to discuss ‘making-up’ autopsy photos.”  Rodgers Br. 14.    However, a review of the whole email does not produce a genuine dispute that probable cause was lacking, and the District Court properly rejected Rodgers’ argument.  The email discusses making enlarged versions of various photos and diagrams to potentially be “mounted on board,” and presumably used at trial.  J.A. 148.  The email then states, “I can make one up of the autopsy photos also if you think you want them.”  Id.  Clearly,  5 Rodgers attempts to rebut this presumption by showing that the officer “knowingly and deliberately, or with a reckless disregard for the truth, made materially false statements or omissions” Xi, 68 F.4th at 841 (emphasis added) (brackets omitted) (quoting Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)).  As Rodgers concedes, this language “concerns a search warrant,” but he “submit[s] the rebuttal also applies to Grand Jury presentments.”  Rodgers Br. 16.  This broader application, however, is foreclosed by our holding in Camiolo.  334 F.3d at 363.  While other circuits have held that a failure to disclose exculpatory evidence to a grand jury can rebut the presumption of probable cause founded upon a grand jury’s indictment, see, e.g., Harris v. Town of Southern Pines, 110 F.4th 633, 643–44 (4th Cir. 2024). 6  this was an offer to create an enlarged version of the existing autopsy photos.  Thus, the District Court properly rejected Rodgers’ proposed reading as unreasonable.  See Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (“In considering a summary judgment motion, a court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from the evidence.” (emphasis added)).  In any event, this email was sent months after the grand jury issued its presentment.  Therefore, the email does not establish a genuine dispute that the presentment was “procured by fraud, perjury or other corrupt means.”  Rose, 871 F.2d at 353. Rodgers also alleges various inaccuracies in the Pennsylvania State Police crime report and grand jury presentment.  However, Rodgers fails to show that that any alleged misstatements in the report were knowingly false or were material to the grand jury’s finding of probable cause.  Id.  Rodgers also takes issue with the strategies the police used to investigate him.  However, none of the purported deficiencies in the investigation negate the evidence supporting the grand jury’s finding of probable cause.  Id. III. CONCLUSION  For the forgoing reasons, we will affirm the judgement of the District Court.6  6 Because we can affirm on the basis of probable cause alone, we need not reach the defendants’ immunity arguments or arguments related to the involvement of particular defendants, nor do we reach the issue of whether the defendants acted with the required malice to support a malicious prosecution claim. 

Carl Rodgers v. Pennsylvania State Police

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 2-6-2025 Sherry Miller v. Campbell Soup Co Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Sherry Miller v. Campbell Soup Co" (2025). 2025 Decisions. 112. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/112 This February 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. 24-1812 __________  SHERRY L. MILLER,          Appellant v.  CAMPBELL SOUP COMPANY RETIREMENT & PENSION PLAN ADMINISTRATIVE COMMITTEE ____________________________________  On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1:19-cv-11397) District Judge:  Honorable Robert B. Kugler ____________________________________  Submitted Pursuant to Third Circuit LAR 34.1(a) December 23, 2024 Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges  (Filed: February 6, 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  Sherry Miller appeals the District Court’s judgment in favor of Appellees.  For the reasons that follow, we will affirm the District Court’s judgment.  The procedural history of this case and the details of Miller’s claims are well known to the parties, set forth in the District Court’s opinion, and need not be discussed at length.  Miller worked for Campbell Soup Company for almost 30 years, with a brief break in service in 2001.  Before her break in service, Miller accrued benefits under a traditional pension formula per a retirement plan (“the Plan”), but, after the break in service, she accrued them under a cash balance formula.  In 2015, Miller retired and, in return for 101 weeks of severance pay and medical coverage, signed a release of claims against Appellee.   In her amended complaint, Miller alleged that she was entitled to over 28 years of benefits under the pension formula instead of only 15 years of benefits.  She asserted that that Appellee breached its fiduciary duty when it misrepresented what her retirement benefits would be (“misrepresentation claim”). She also raised a claim of equitable estoppel based on these alleged misrepresentations.    On Appellee’s motion to dismiss, the District Court dismissed her claim that she was entitled to additional benefits under the Plan.  It allowed her misrepresentation and estoppel claims to proceed.  Both Miller and Appellees filed motions for summary judgment.  Having determined that Miller’s remaining claims were barred by the release   3 she had signed when she retired, the District Court granted Appellees’ motion for summary judgment and denied Miller’s motion as moot.  Miller filed a timely motion for reconsideration, and, after the District Court denied that motion, filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291 and exercise de novo review over the District Court’s order granting summary judgment.  Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).  A grant of summary judgment will be affirmed if our review reveals 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).  We review the denial of a motion for reconsideration for an abuse of discretion.  See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008).  We agree with the District Court’s thorough analysis of Miller’s claims and have little to add to its discussion.  We will briefly address Miller’s arguments on appeal. On appeal, Miller states that she is seeking recovery of benefits resulting from Appellee’s breach of its fiduciary duties.1  She asks that we apply our decision in Pell v. E.I. DuPont de Nemours & Co. Inc., 539 F.3d 292, 297 (3d Cir. 2008), where we  1 In her opening brief, Miller does not challenge the District Court’s dismissal of her claim that she was entitled to increased benefits under the Plan.  While she disclaims such a forfeiture in her reply brief, she does not explain how she was entitled to increased benefits under the terms of the Plan.  Instead, with her misrepresentation claim, she appears to be requesting additional benefits that she is not entitled to under the Plan but allegedly was mistakenly led to believe she would receive.     4 affirmed the District Court’s granting relief on an ERISA claim.  See Appellant Br. at 25.  The issue on appeal, however, is not whether Miller would be entitled to relief on her misrepresentation claim but whether she released that claim when she retired. Miller argues that her claim was not covered by the release because the release did not cover claims arising after the release was signed.  See Release at ¶ 4(f).  She contends that the claim did not accrue until she discovered the alleged misrepresentations in 2017.  We, however, have held that a claim for a breach of fiduciary duty based on misrepresentation was completed and accrued on the date the employee relied on the misrepresentations to her detriment.  See In re Unisys Corp. Retiree Med. Benefit “ERISA” Litig., 242 F.3d 497, 505–06 (3d Cir. 2001).  Thus, the claim that Appellee misrepresented her benefits did not arise two years after the release was signed, but rather arose when Miller signed the release and retired allegedly in reliance on the expected benefits. Miller also notes that she did not release claims for vested benefits under a qualified retirement plan and contends that her claim is for vested benefits.  See Release at ¶ 4(d).  However, as noted above, Miller’s claim for benefits is not based on the Plan but rather on the alleged misrepresentations by Appellee as to what her retirement benefits would be.  Thus, it is not a claim for “vested benefits under a qualified retirement plan.”  And the Release specifically mentioned that claims of misrepresentation and equitable estoppel were covered by the agreement.  See Release at ¶ 3(b)(xi).    5  Miller further contends that she did not knowingly release the misrepresentation claim because she was unaware of it until two years after signing the release.  She argues that a release of a claim for benefits under an ERISA plan is void unless the individual is aware of the released rights.  See Appellant Br. at 21.  However, as noted above, the misrepresentation claim is not a claim for benefits under the Plan.  And the language of the release informed Miller that she would be releasing “any and all claims that you have or may have.”  Release at ¶ 3(b).  We have interpreted similar “may have” language to release claims that the parties had but may discover later.  See Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104, 108 (3d Cir. 1994) (explaining that “[g]iven the limitation to claims based on events occurring before the date of the release, we can only take the phrase ‘hereafter may have’ to mean that the parties wished to release not only those claims of which they were currently aware, but also those they might subsequently discover based on their relationship prior to the execution of the release”).   Considering the totality of the circumstances, we agree that Miller’s release was knowing and voluntary.  See Coventry v. U.S. Steel Corp., 856 F.2d 514, 523 (3d Cir. 1988) (analyzing release under a totality of the circumstances test).  Miller, a professional with thirty years of experience, was given 45 days to consider the release and consult an attorney before signing and, as discussed below, received substantial consideration.  Id.   6 (describing factors to be considered in determining whether a release was entered into knowingly and voluntarily).2 Finally, Miller argues that she did not receive any consideration for the release of her claims because other employees were offered the same severance benefits.  As noted above, Miller received 101 weeks of salary as severance pay (which the parties value at approximately $196,000) and continued insurance coverage (the value of which has not been described).  Miller does not explain how other employees’ receiving severance pay undermines the consideration she received.  She also appears to argue that she did not receive any consideration because she estimates that the damages on her misrepresentation claim would be $292,000, and this estimate is larger than the salary portion of her severance benefits.  At the time of the release, however, there had been no determination that Miller was entitled to these damages.  Coventry, 856 F.2d at 523 (listing as a factor to be considered “whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law”).   In challenging the District Court’s denial of her motion for reconsideration, Miller appears to argue that the District Court ignored her misrepresentation claim.  As  2 Miller testified at her deposition that she did not consult with an attorney because she had dealt with a number of contract agreements in her work for Campbell Soup.  See Supp. App’x at 264.   7 explained above, however, the District Court did not need to reach the merits of Miller’s claim because it determined that she had released the claim. For the reasons above as well as those set forth by the District Court, we will affirm the District Court’s judgment.  

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