As I noted previously, this week didn't begin at all well for various California lawyers. And, here, it ends on a similarly sour note for others.
Didar Singh originally gets the Ninth Circuit to reverse and remand the denial of his asylum claim. It's an unpublished, four-page (double-spaced) opinion. No biggie.
Then Singh's attorney files a motion to obtain EAJA fees of $3800. No big deal there either. And the Ninth Circuit grants them. But also, in a parting shot, makes the following statement regarding the position of the attorney for the United States:
"The Court notes that Respondent’s primary argument — that only litigation positions of the Department of Homeland Security (“DHS”) before this Court, and not decisions of Immigration Judges (“IJs”) and the Bureau of Immigration Appeals (“BIA”), are pertinent with regard to whether the government’s position in this case was substantially justified — was squarely rejected by this Court in Thangaraja v. Gonzales, 428 F.3d 870, 873 (9th Cir. 2005) (“We reject this contention, which completely lacks justification. Pursuant to the EAJA, the BIA and IJ decisions we review are as much the ‘position of the United States’ as is the DHS’ litigation position.”).
It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument for purposes of preserving it for en banc or Supreme Court consideration while acknowledging that it has been rejected by the court, it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it, particularly where it is the Department of Justice itself that was involved in earlier case. Another such repetition of this same argument in this court will be considered sanctionable behavior."
Wow. Not the way I want to end my week if I'm the relevant DOJ attorney.
Oh, one more thing. The opinion on the merits was unpublished. But the Ninth Circuit publishes the rebuke.