First Circuit Friction

It is starting to get warm in Boston, thank goodness.

But the First Circuit's en banc decision in Aronov v. Napolitano, No. 07-1588, throws off a different kind of heat.

The dispute involves a $4,270.94* fee award entered by the District Judge Nancy Gertner against United States Citizenship and Immigration Service in a suit by a private plaintiff. The issue really is whether the plaintiff prevailed before Judge Gertner, which is prerequisite to the fee award. Judge Gertner said that he had. The First Circuit saw it differently, going so far as to hold that Judge Gertner incorrectly interpreted her own ruling on a joint motion by the parties.

Judge Torruella was having none of this and he dissented.** Vigorously. It's a bit rare see a judge on the United States Court of Appeals address his colleagues like this (page 37):

With due respect, I suggest that our jurisprudence would better reflect the time-honored motto, "Equal justice under law," if we showed the same doctrinal flexibility and credulity to policy arguments presented by citizens asking us to limit governmental power, or for compensation for harm caused by governmental error, as shown by the majority to the government in this appeal.

Let's stipulate that this is the kind of statement that would lead a law professor to upbraid, humiliate, and generally disembowel a first year law student. We can agree on that. But that doesn't make the esteemed judge wrong, now, does it?

*Really? Really.

**As did Judge Lipez. His dissent reads more like a majority opinion, which is not insignificant.