Stephanos Bibas

Bibas has authored over one hundred opinions for the Third Circuit on a wide range of subjects, including the following notable opinions:

• Donald J. Trump for President, Inc. v. Secretary Commonwealth of Pennsylvania, 830 F. App’x 377 (3d Cir. 2020). On November 27, 2020, Bibas authored the opinion in the case that rejected the 2020 Donald Trump presidential campaign's attempt to undo the certification of votes in the 2020 United States presidential election in Pennsylvania. Bibas opened his opinion by writing: "Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here." Bibas concluded by stressing that "[v]oters, not lawyers, choose the President" and "[b]allots, not briefs, decide elections."[30]
• Nekrilov v. City of Jersey City, 45 F.4th 662 (3d Cir. 2022). Judge Bibas concurred in a challenge to Jersey City’s restrictions on residents’ renting their homes through platforms like Airbnb. He proposed an originalist test for deciding when a regulation violates the Constitution’s Takings Clause. He wrote that the government should “have to compensate [a property] owner whenever it takes a property right and presses it into public use—even if the taking did not involve a physical invasion.” Under that test, a regulation counts as a taking if it “take[s] a property right from the ‘collection of individual rights’ that ‘constitute property’” under state law.[31]
• United States v. Ho Ka Terence Yung, 37 F.4th 70 (3d Cir. 2022). Writing for the court, Judge Bibas held that a federal law against cyberstalking was not overbroad in violation of the First Amendment. Judge Bibas acknowledged that the law “if read broadly” could “punish protected speech” that merely “annoys someone.” To avoid that constitutional problem, Judge Bibas adopted “a narrow reading of the statute[]” so that it targeted only those cyberstalkers who intended to “put the victim in fear of death or bodily injury.” In another part of the opinion, Judge Bibas explained that courts should not enforce plea bargains when doing so would prevent the defendant from appealing an illegal sentence and proceeded to vacate $130,000 in security system upgrades unlawfully sought by Georgetown University.[32]
• United States of America v. Safehouse, 985 F.3d 225 (3d Cir. 2021). Writing for the court, Judge Bibas held that a nonprofit “safe-injection site” would violate federal law. He reasoned that Congress had made it a crime to open a property to others for drug use. Though Congress may not have intended the law to cover safe-injection sites, that was “irrelevant”: “A court’s job is to parse texts, not psychoanalyze lawmakers.” The court also held that under Supreme Court precedent, the law at issue was a valid exercise of Congress’s commerce power.[33]
• Ezaki Glico Kabushiki Kaisha v. Lotte International America Corp., 986 F.3d 250 (3d Cir. 2021). Writing for the court, Judge Bibas ruled that a cookie manufacturer’s “trade dress” (the distinctive look of its product) was not protected under trademark law. Trade-dress protection “does not safeguard designs that are functional—that is, useful.” So the cookie manufacturer could not get trade-dress protection for functional parts of its cookies’ design—like their shape—that made them easier to eat.[34]
• Jacobs v. Federal Housing Finance Agency, 908 F.3d 884 (3d Cir. 2018). Writing for the court, Judge Bibas upheld, on statutory grounds, the creation of the Federal Housing Finance Agency (FHFA), a government conservator that took over Fannie Mae and Freddie Mac and helped rescue the nation's economy after the housing crisis of 2008, as well as the FHFA's ability to retain Fannie and Freddie's future net profits in exchange for taking on their crisis-era liabilities.[35]
• E.O.H.C. v. Secretary U.S. Department of Homeland Security, 950 F.3d 177 (3d Cir. 2020). Writing for the court, Judge Bibas held that district courts have jurisdiction to hear a wide array of "now or never" challenges to the conditions of an immigrant detainee's confinement. Among them were the plaintiffs' challenges to (1) the Trump Administration's Migrant Protection Protocols (MPP) and (2) alleged violations of the Flores Settlement Agreement.[36]
• McCafferty v. Newsweek Media Group, 955 F.3d 352 (3d Cir. 2020). Writing for the court, Judge Bibas affirmed, on First Amendment grounds, the dismissal of a defamation complaint against Newsweek brought by a twelve-year-old, politically vocal supporter of Donald Trump. Bibas wrote: "Political discourse can be bruising. People often express opinions that offend others. But the First Amendment protects virtually all of those opinions, even offensive and hurtful ones, to promote a greater good: robust political discourse. The price of free speech is putting up with all sorts of name-calling and hurtful rhetoric."[37]
• Folajtar v. Attorney General of the United States, 980 F.3d 897 (3d Cir. 2020) (Bibas, J., dissenting). Judge Bibas dissented from a majority opinion that held that the government could, consistent with the Second Amendment, permanently ban gun possession by all felons, regardless of whether their crimes were violent or dangerous. Bibas canvassed the original history of the Second Amendment and historical laws that had limited the right to bear arms, ultimately concluding that a citizen’s dangerousness, not her virtuousness, is what separates those who can and cannot be denied the right to bear arms. Bibas would have thus held that the plaintiff, who had committed a non-violent felony many years prior, should not be denied her Second Amendment rights forever because “[f]elons are more than the wrongs they have done.” [38]
• Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, 910 F.3d 106 (3d Cir. 2018) (Bibas, J., dissenting). Judge Bibas dissented from a majority opinion that upheld New Jersey's ban on large capacity magazines for firearms. Bibas criticized the majority for failing to respect the right to bear arms guaranteed by the Second Amendment, writing that it is "an equal part of the Bill of Rights," which, like other enumerated constitutional rights, requires heightened judicial scrutiny.[39]

Judge Bibas sits by designation routinely in the District of Delaware and occasionally in the Eastern District of Pennsylvania. Some of his notable opinions are:

• Gibbs v. Carney, 2022 WL 3681327 (D. Del. 2022). Delaware prisoners alleged that their prison violated the Eighth Amendment during the COVID-19 pandemic by denying them masks and punishing them for wearing makeshift ones. Judge Bibas dismissed some of their claims but allowed the suit to go forward against the prison warden. The prisoners had plausibly alleged that the warden had “unreasonably failed to intervene to enforce the [prison’s mask] mandate.”[40]
• Consumer Financial Protection Bureau v. National Collegiate Master Student Loan Trust, 575 F. Supp. 3d 505 (D. Del. 2021). The CFPB sued some student trusts for “engaging in forbidden debt-collection and litigation practices.” Over the trusts’ objections, Judge Bibas allowed the suit to go forward. The trusts had argued that the suit was improper because the CFPB filed it when its director had been unconstitutionally insulated from presidential removal. But Judge Bibas rejected that argument: “[S]o long as the agency head was properly appointed,” his actions were not automatically void. Instead, the trusts would need to “show that the removal provision harmed [them].” Here, the trusts could not show that.[41]
• Ninivaggi v. University of Delaware, 555 F. Supp. 3d 44 (D. Del. 2021). Judge Bibas heard a case brought by University of Delaware students whose classes went online because of the COVID-19 pandemic. They sued the school for a tuition refund, claiming that it had not given them the in-person education that it had promised. Judge Bibas ruled that the students had stated a plausible contract claim, so he let the case go forward. He explained that although the school had not expressly promised in-person classes, it may have impliedly promised that.[42]
• Avenatti v. Fox News Network, LLC, 2021 WL 3603035 (D. Del. 2021). Judge Bibas dismissed a libel lawsuit brought by celebrity lawyer Michael Avenatti. Avenatti alleged that Fox News and its correspondents had defamed him by reporting on his arrest for domestic violence. But because Avenatti is a public figure, Judge Bibas reasoned, Avenatti had to show actual malice—that the defendants “knew that the statements were false or recklessly disregarded that possibility.” Since none of the statements Avenatti identified met that standard (and some were not even false), the case had to be dismissed.[43]

Judge Bibas is one of the top judges for “feeding” his clerks to the United States Supreme Court. Six of his law clerks have been hired to clerk for six different Supreme Court Justices (Chief Justice Roberts and Justices Thomas, Alito, Kagan, Gorsuch, and Barrett).[44][45] Another of his clerks served as a Bristow Fellow in the Office of the Solicitor General.[46]