SG Confesses Error on Secret Immigration Docket, SCOTUS GVRs

Thanks for Marcia Coyle for tracking down the Solicitor General's confession of error, which was not publicly available

|The Volokh Conspiracy |

On Monday, the Supreme Court's Order List included the following entry:

19-5133 BROWN, ANDREW A. V. BARR, ATT'Y GEN.

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of the confession of error by the Solicitor General in his brief for the respondent filed on March 6, 2020.

The Supreme Court's docket did not include a link to the government's confession of error. Why? As a general matter, the federal courts do not offer public access to immigration dockets. Professor Nancy Morawetz writes about the complicated history of those rules here. On Monday, Professor Morawetz lamented that the SG's confession was not available to the public:

The net result is that the Department of Justice, which succeeded in persuading the Eleventh Circuit to dismiss Mr. Brown's case, has engineered a reversal of that decision that does not in any way make the Department answerable for the position it took below. Meanwhile, the positions of the Justice Department and the ways that they deprive pro se individuals of their opportunity for judicial review are unavailable to the public.

It is particularly galling that the details of this case are not public. What we know from the 11th circuit decision is that Mr. Brown, like far too many immigrants, has been forced to litigate his right to remain in the country without counsel and from inside a prison. He had trouble accessing the courts and with the remand is able to pursue some undefined relief at the Eleventh Circuit. But even after going as far as the Supreme Court to vindicate his rights, the arguments that were used to keep him from accessing the courts remain shrouded in secrecy.

Thankfully, we now have access to the brief. Credit goes to Marcia Coyle at the National Law Journal. SG Francisco wrote:

The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded to the court of appeals for further proceedings in light of the submission in this brief regarding the Board's error and the Board's February 27, 2020 reissuance of its decision denying reconsideration.

Professor Morawetz writes that the public should have access to such documents.

It remains problematic that the route to a timely copy of an Solicitor General (SG) confession of error is through a nationally prominent legal reporter, but this blog focuses instead on what this filing shows.

I agree.

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  1. The government doesn’t make mistakes but they do have solutions to whatever ails you.

    1. Hey Siri, what are the disadvantages of using the recursive bi-partitioning implementation algorithm of spectral clustering?

  2. Talk about a let-down of a headline…

    The headline references a “secret immigration docket,” but the byline then references a specific document that was not publicly available in a specific case. The first full paragraph literally contains a direct link to the publicly accessible docket of the referenced case, hosted on the Supreme Court’s website. The Court is clearly terrible at keeping its secret docket secret. The implication given by the headline is refuted in the first paragraph!? The linked docket is available to the public, and contains basic case information and a listing of case events (i.e., docket entries). But the sentence after that says that federal courts as a general rule do not offer public access to immigration dockets. Is this case an exception to the general rule, since the public does have access to the docket (as evidenced by the link to it)?

    From there, the discussion moves to the availability of a specific document that is part of the case: the brief filed by the SG. This brief is, in fact, not available through the publicly accessible docket for the case. The post concludes with a professor’s argument that the public should have access such documents.

    Can I get a public meaning of the word docket in 2020?

  3. Why would anyone be interested in what their government is doing during a pandemic?

  4. I saw that Monday, and what struck me was that it involved an in forma pauperis (IFP) petitioner writing from a jail. My immediate conclusion was that there was only a paper filing and thus there was nothing electronic to put on the docket.

    About 20 years ago I represented a man whose ex-wife, representing herself, took an issue regarding their divorce to the Supreme Court (stopping at each court along the ladder up). She filed a pro se IFP petition which was a gawdawful mess. My client, a regular working guy, agreed to having me file an opposition. The gist of why – an opposition is not required unless the Court tells you to file one and this cost him a couple thousand he really couldn’t afford – was to make sense of the mess she’d presented both as a courtesy to the law clerks and thereby an inducement to get them to recommend denying cert., the result we wanted.

    In non-IFP cases, Supreme Court Rules at that time required parties to spend lots of money on getting their documents printed into little booklets by specialized, expensive printers, in compliance with lots of arcane rules about typeface, etc. A lot of this has been superseded by electronic filing, which provides the links we all find in the docket, though the format rules remain. Today the clerks just push the electronic document into the docket for all to read.

    OTOH, in IFP cases the requirement for specialized printers and booklets was not in effect, and neatly typewritten on 8.5 x 11 paper (subject to typeface, spacing and formatting rules) is acceptable.

    I do not know whether electronic filing is required for parties in IFP cases. Moreover, I do not know whether the petitioner in this case, incarcerated in the Duval County Jail, even has access to a computer, let alone one which allows production of .pdf files or sending them by email. Jails tend to frown on inmates having computer access let alone internet access, figuring they’ll be up to no good the instant the can get on the machine.

    Keep in mind that a famous instance of non-conforming papers resulting in a result favorable to the petitioner was Gideon v. Wainwright. That started with a handwritten letter from a nearly-illiterate petitioner. Of course, in that case the Court appointed counsel to take over the case from the IFP petitioner.

    It would indeed be appropriate if the S.Ct. were to scan IFP documents into .pdf formats and put them on the docket, especially in the cases where the Court does something more than merely deny cert. outright. Especially when an IFP petitioner writing from a jail manages to back the Solicitor General, learned in the law, into confessing that the government was wrong. One of those things where it would enhance public confidence in the Court and its operations. It might even cause us to have some sympathy for the law clerks who have to read the stuff that lands there.

  5. Much ado about nothing. The error was merely writing to him at the wrong address, leaving him no time to appeal. So now the error is corrected, his appeal can be heard, it will be denied again, and he is deported. So what.

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