Three new opinions, including a major immigration appeal

S.E.R.L. v. AG — immigration — affirmance — Jordan

This appeal posed a fascinating tension: immigrant advocates urged the court not to apply Chevron deference. Broadly, conservatives today tend to oppose immigration and Chevron deference, while liberals tend to favor both. When the “liberal” side advances the “conservative” position, as here, the familiar ideological guideposts are harder to read.

The legal issue in today’s case was whether a Honduran woman and her children qualified for withholding of removal under the Immigration and Nationality Act as members of a “particular social group.” Their group, they argued, consisted generally of family members of domestic-abuse victims. The Board of Immigration Appeals had interpreted “particular social group” narrowly, in way fatal to the family’s claim here, and the family argued that its strict test wasn’t entitled to Chevron deference.  Today, the Third Circuit rejected their position, holding that the BIA’s interpretation is entitled to Chevron deference and denying the petition for review.

Joining avowed Chevron foe Jordan were Krause and Greenberg. Arguing counsel were Russell Falconer of Texas for the family and Sheri Glaser for the government. A footnote in the opinion thanked several groups for filing amicus briefs “which have assisted our consideration of the legal issues before us and also shine a light on an issue of international concern.”

Minarsky v. Susquehanna Co. — civil / employment discrimination — reversal — Rendell

A county secretary alleged that she was subjected to years of sexual harassment by a superior, the since-fired head of the county’s veterans-affairs department, and she sued various defendants including the county based on a theory vicarious liability. The district court granted summary judgment in favor of the county, but today the Third Circuit reversed, holding that whether the county had satisfied the Faragher-Elllerth affirmative defense to vicarious liabililty for workplace harassment should be decided by a jury.

Joining Rendell were Greenaway and Fuentes. Arguing counsel were David Koller of Koller Law for the secretary, Dana Zlotucha of Kreder Brooks Hailstone for the county, and Gerald Hanchulak for the superior.

Wayne Land & Mineral Gp. v. Delaware River Basin Comm’n — environmental — reversal — Jordan

The Third Circuit today reversed a district court’s dismissal of a suit brought by a company trying to keep the Delaware River Basin Commission from regulating its fracking work. The relevant law allows the commission to regulate a “project,” and the Third Circuit held that that term in ambiguous and remanded for fact-finding on the drafters’ intent.

Judge Scirica wrote a brief separate opinion. The signature line states simply that the opinion is “concurring,” and it ends with the statement that “I concur,” but the body of the opinion states that he agrees with part of the court’s opinion but has a concern that “precludes him from joining in full.” Specifically, he joined with the court’s ambiguity analysis but disagreed with the opinion’s inclusion of an assessment of the strengths and weaknesses of other issues that the district court will decide on remand.

(Readers may recall that is the case in which a lawyer fainted during the original oral argument.)

Joining Jordan were Hardiman and Scirica at least in part, and Scirica concurred. Arguing counsel were David Overstreet of Overstreet & Nestor for the appellant, Kenneth Warren of Warren Environmental Counsel for the commission, and Jordan Yeager of Curtin & Heefner for an intervenor group.