New opinions — “bench of fire” case ends in immigration reversal, plus an employment reversal

Regular readers may recall the “bench of fire” argument, wherein a CA3 panel reset my standard for what constitutes a hot bench. I wrote:

If I ever create an online legal dictionary, the entry for “hot bench” will just be a link to this recent argument. Holy moly. The case was Mayorga v. AG, a deportation challenge argued April 8.

Start at 8:30 (that’s AG counsel’s argument, after the panel sat Mayorga’s lawyer down early). The resignation in counsel’s voice by 9:09 is priceless.

The panel was Hardiman, Sloviter, and Barry. Arguing counsel were Tad Macfarlan pro bono (assigned by CA3 superstar David Fine) for the petitioner and Anthony Nicastro for the AG, and both did quite well considering.

Mayorga was decided today. Reversing, the panel held that a conviction for unlicensed firearms dealing is not categorically a crime involving moral turpitude and therefore does not support a lifetime ban on entry to the country. Opinion by Sloviter joined by Barry, with Hardiman dissenting on standing.

A couple things I found interesting in Mayorga:

  • CA3 goes weeks at a time without issuing a published opinion with a dissent. I haven’t researched it yet, but I bet CA3’s dissent rate is way below other circuits’.
  • The court included a prominent footnote naming and thanking K&L Gates for allowing its associate to represent the indigent petitioner.
  • For appeal nerds, Hardiman’s dissent offers an inside-baseball nugget. He explained that Mayorga’s winning issue was spotted by a motions panel (my guess is it was a circuit staff attorney who actually spotted it), reviewing the merits of Mayorga’s case in order to decide whether to grant his motion to appoint counsel. If my guess is right, this is the second case this week where the outcome turned on vigilant clerks and staff counsel (I discussed the other here).

The day’s other published case was an employment-discrimination appeal. When a DA’s-office detective was fired, he sued for age discrimination. The district court dismissed the suit, but CA3 vacated in part.

The case is Hildebrand v. Allegheny County. Opinion by Vanaskie, joined by Greenaway and Roth. Arguing counsel were Marjorie Crist for the employee, Virginia Scott and Bernard Schneider for the employers, and Anne Occhialino for the EEOC as amicus. Sad to say in 2014, but it’s refreshing to see a CA3 appeal where 3 of the 4 arguing attorneys are women.



1 thought on “New opinions — “bench of fire” case ends in immigration reversal, plus an employment reversal

  1. David Fine

    I think your point about dissents is interesting. My sense is that, among the courts of appeals, the Seventh seems to have the fewest dissents. Perhaps a “cultural” thing.

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