Saturday, May 01, 2021


 Longtime and careful blog readers know that our admiration for the philosophy of Ayn Rand is her careful attention to  metaphysics and epistemology. In that regard one of the foundations of Ms. Rand's philosophy of Objectivism is the concept advanced by Aristotle: A is A.  What is ...is. A fact is a fact and that cannot be changed by a feeling (unless you're a juror on the receiving end of a Rumpole closing argument). 

This brings us to Justice Gorsuch's decision in Niz-Chavez v. Garland, an Immigration case of all things. The fuss (known in legal terms as a case or controversy) is this- aliens in the US accrue time as "presence in the US"-  which for the government trying to remove the alien is a bad thing; for the alien it is a good thing.  

The real problem is the government's computer systems- they do not talk to each other.

 The statute in question requires the government to send notice of a hearing. The Government does this piecemeal, a notice of the charges in one mailing, a date and time in another mailing because the clerk sending the first notice cannot access the court's calendar for the second notice of a date and time. Under the law, "Notice"-whatever that may be  stops the clock of time accruing in the US- which is the goal of the Government. The government says the second notice is enough. The Petitioner says notice has to be one complete document including charges and time and place to appear and neither the first or second or subsequent mailing is sufficient.   

The question revolves around this: does the term "A notice" in which notice is modified  by "A" mean a singular notice, or can the government do it piecemeal? 

 Here, the government sent Mr. Niz-Chavez one document containing the charges against him. Then, two months later, it sent a second document with the time and place of his hearing. ...The government now concedes the first document isn’t enough to trigger the stop-time rule. Still, the government submits, the second document does the trick. On its view, a “notice to appear” is complete and the stop-time rule kicks in whenever it finishes delivering all the statutorily prescribed information. The government says it needs this kind of flexibility to send information piecemeal. It even suggests it should be allowed to spread the statutorily mandated information over as many documents and as much time as it wishes.

Along the way in this opinion and in the briefs the Dictionary Act (the rare legal concept we were not familiar with) came into play, as did the venerable Chicago Manual  of Style, which has a prominent place on Rumpole's desktop.  A few thoughts before we quote the opinion: Gorsuch is establishing himself as an intellectual heir to Justice Scalia, in common sense, writing ability, statutory interpretation, and (western) conservative values that keep the government in check. We like him on the Court. 

  Almost immediately, these provisions pose the government with a problem. To trigger the stop-time rule, the government must serve “a” notice containing all the information Congress has specified. To an ordinary reader—both in 1996 and today—“a” notice would seem to suggest just that: “a” single document containing the required information, not a mishmash of pieces with some assembly required.

(Or as Aristotle and Ms. Rand said: "A is A"). 

The government submits that §1229(a)(1) defines the term “notice to appear” as “written notice”—and then says it’s obvious “written notice” can come by means of one document or many.

But this argument doesn’t quite track. Section 1229(a)(1) says that “written notice” is “referred to as a ‘notice to appear.’” The singular article “a” thus falls outside the defined term (“notice to appear”) and modifies the entire definition. So even if we were to do exactly as the government suggests and substitute “written notice” for “notice to appear,” the law would still stubbornly require “a” written notice containing all the required information.


Admittedly, a lot here turns on a small word. In the view of some, too much. The dissent urges us to overlook the fact Congress placed the singular article “a” outside the defined term in §1229(a)(1).


The government observes, for example, that a writer can publish “a” story serially, or an author may deliver “a” manuscript chapter by chapter. Brief in Opposition 10. The dissent offers its own illustrations, highlighting that “a job application” and “a contract” also can be prepared in parts. Post, at 10. So even if IIRIRA speaks repeatedly of “a” notice to appear, the government and dissent contend, it remains possible that Congress meant to allow that notice to come over time and in pieces. The trouble with this response is that everyone admits language doesn’t always work this way. To build on an illustration we used in Pereira, someone who agrees to buy “a car” would hardly expect to receive the chassis today, wheels next week, and an engine to follow.  (The Justice is obviously not familiar with some of the Miami SW 8th street Car Dealers we have represented over the years in the REGJB whose retainers  have kept us well stocked in the better wines we like to drink at mealtime). 


While you might say “she wrote a manuscript” or “he sent three job applications,” no one would say “she wrote manuscript” or “he sent job application.” See The Chicago Manual of Style §5.7, p. 227 (17th ed. 2017);


The government resists this conclusion by invoking the Dictionary Act. When reading the U. S. Code, that Act tells us to assume “words importing the singular include and apply to several persons, parties, or things,” unless statutory context indicates otherwise. 1 U. S. C. §1. But this instruction has no application here. The Dictionary Act does not transform every use of the singular “a” into the plural “several.”


Besides, even viewed in isolation the government’s policy arguments are hardly unassailable. If the government finds filling out forms a chore, it has good company. The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.  (We love this. Just love it. We cannot wait to use it with some obstreperous court clerk someday). 


The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then proceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calculation plays no role in our decision. (This argument we love. How many times does the government in our cases warn judges of the consequences to many cases in their decision in one particular case. Prosecutors across the nation can expect to hear this citation our of Rumpole from now on.)


At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. (In other words, a lawyer's oratory can, like it was said of Churchill "Marshal the English language and send it into battle").  In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them. The judgment of the Court of Appeals for the Sixth Circuit is Reversed.

The penultimate sentences are good old fashioned Western-US-Rancher-Reasoning. We need more of that on the Court as it pertains to the power of the government. Well done Justice Gorsuch. Well done indeed. 


Hot Blonde PD said...

Rumpole Covid is so 2020. I am vaccinated. I am safe and I am ready to get to court and try some f'ing cases. You in ?

Anonymous said...

Gorsuch is a literalist. He has stepped on some very sensitive toes on the right. The supremes just took up a 2A case out of NY. So all of you who praise him now, remember: "the people's right to keep and bear . . ." means exactly that.

Robert Kuntz said...

But I am certain that I was assured that Gorsuch, Kavanaugh and Barrett would all be nothing more than mere instrumentalities for the Team R agenda -- and, indeed, the Trumpist version of that. But here we have a ruling few on Team R, and no Trumpian wall-builder, can love.

In fact, while time will tell on Barrett, both Kavanaugh and, especially, Gorsuch, have already repeated a lesson about predicting justices' post-confirmation behavior that you'd have thought we'd all have learned by now (one that Nixon, for example, learned good and hard in Burger).

Gorsuch -- who is, in his person, the very reason so many on Team D offer to justify packing the Court with four new seats -- is instead an example of why such naked politicizing of the appointment process would be simultaneously disastrous AND futile. Add four justices you assume are going to rule "your way" for their lifetime appointment and, next time the other side holds the Senate and White House, that team will simply do the same. Neither team is thus likely to get what it really thinks it wants, and, meanwhile, faith in the legitimacy of the court -- which faith, at bottom, is what gives the Court's rulings lasting meaning -- is degraded even further.

Samuel Danziger said...

A rarely seen smackdown of the three dissenters, some of the lower appellate courts, the Congress, and, in general, the Government. Thank you for calling the SCOTUS decision to the blog's attention.

Phil Maniatty said...

I couldn't agree more with Robert Kuntz. Court packing is a very short-sighted concept that solves nothing in the long run. Perhaps the Senate needs some internal operating rules about when judicial nominations should move forward, in relation to the length of time remaining in a presidential term of office.

Anonymous said...

Why, oh why Runpole is Judge Mike Hanzman not the Chief Judge? There is no better human being, kind to his family and friends, charitable, brilliant, academic orders written like law review articles and friendly to litigants.

Let’s punch in this direction. He deserves to be Mayor, Federal Judge or President.