The panel in this case was tough but fair. The petitioner filed his brief in this immigration case in May 2003. The INS first asked for (and received) an extension to file its responsive brief. Then asked for (and received) a temporary stay. Then asked for another extension -- which it received, but with an admonition that further extensions would be disfavored. Then -- unfazed -- asked for another extension. Which was granted. And, now emboldened, filed its responsive brief over three months after the court's last deadline had expired.
The INS filed a motion, alongside its belated brief, to accept the tardy submission. Even though the motion was unopposed, the panel denied the motion and struck the brief.
Notwithstanding its penalty, the panel's order was more than kind. It expressly noted, for example, that it was "not unsympathetic to the workload pressures" that confront counsel for the INS. But it also noted that the same attorney who represented the INS here had also filed several other late briefs with the Ninth Circuit. And also noted that, in any event, "at some point, scarcity of personnel and resources is no more a reason for the government than for other parties for filing legal papers many months late." So the panel struck the brief. But simultaneously ended the opinion by noting that no sanctions against the individual INS attorney would be appropriate. As a final act of generosity, the panel also never mentions counsel's name. Indeed, unlike almost every Ninth Circuit case, in which the published opinion lists all counsel of record, this one completely omits any such reference. (This presumably was intentional, since the same panel's published opinion on the merits includes these omitted details.)
Which was incredibly nice of the panel. For naught. Even a cursory review of the prior cases cited by the panel confirms that the INS lawyer's name is William C. Erb, Jr., who's at the DOJ. Sorry about that, Bill.
