Two new opinions, both authored by retired Judge Vanaskie [updated]

The Third Circuit posted two new precedential opinions today, both authored by Judge Vanaskie, who has retired. Both opinions contain the following footnote:

“The Honorable Judge Vanaskie transmitted the opinion to the Clerk for filing prior to retiring from the bench on January 1, 2019. Due to the intervening holiday, the opinion has been entered on the docket by the Clerk this day.”

At the risk of being accused of Stiegler sticklerism, I think it would have been preferable (assuming that post-retirement issuance was unavoidable) to issue the opinions as two-judge per curiam opinions with footnotes indicating that Judge Vanaskie authored and submitted them prior to his retirement. Doing it the way the court did here invites controversy over the issuance of opinions after a panel member’s death or retirement, unnecessarily in my view.

[UPDATE: the court also issued two non-precedential opinions today that listed Judge Vanaskie on the coram but, unlike the published opinions, stated that the opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d) and 3d Cir. IOP 12.

IOP 12.1(d) speaks directly to this situation:

If the author of an opinion or member of the panel becomes unavailable after transmission of the opinion to the clerk, but before the opinion is filed, the chief judge may direct that the opinion be filed listing the unavailable judge on the coram, provided neither of the remaining judges has authored a concurrence or dissent. Ordinarily the opinion will be filed as a per curiam opinion but the chief judge may in his or her discretion direct that the opinion be filed with the unavailable judge listed as author. The clerk will note on the opinion that it was received in the clerk’s office before the panel member became unavailable.

So, while the internal procedures appear to favor the course I suggested above, they specifically give the Chief Judge the discretion to do exactly as he evidently did here.]


Simpson v. AG — civil — affirmance — Vanaskie

The Third Circuit upheld the ATF’s revocation of a gun dealer’s firearm licenses based on over 400 willful violations of gun laws, holding that such violations are willful if they involve “knowledge of a legal obligation and purposeful disregard or plain indifference to it.”

Joining Vanaskie were Chagares and Jordan. Arguing counsel were Joshua Prince of the Prince Law Offices for the dealer and Carlo Marchioli of the MDPA’s US Attorney’s office for the government.


Ku v. AG — immigration — affirmance — Vanaskie

The Third Circuit today held that an immigrant’s conviction for wire fraud resulted in a loss of over $10,000 and was a crime involving moral turpitude. The court further held that it lacked jurisdiction to review ruling of the Board of Immigration Appeals reversing an Immigration Judge’s grant of a waiver based on the extreme hardship that deportation would cause her U.S. citizen children.

Joining Vanaskie were Jordan and Nygaard. Arguing counsel were Thomas Griffin of Surin & Griffin for the immigrant and Gregory Pennington Jr. for the government.