SCOTUSblog (Opinion)
By Lyle Denniston
May 20, 2016
The federal judge who first shut down President Barack Obama’s sweeping immigration policy gave himself another controversial role on Thursday: overseeing required ethical schooling of every Washington-based Justice Department lawyer who appears in any court — federal or state — in twenty-six states over the next five years.
District Judge Andrew S. Hanen of Brownsville, Texas, took that highly unusual step as one of the remedies for what he found to be serious ethical violations in his court by Justice Department attorneys when the new immigration dispute was before him in late 2014 and early 2015. That case is now awaiting a decision by the Supreme Court to determine the fate of delayed deportation of nearly five million undocumented immigrants.
The twenty-six states where the judge’s order could have an impact on the professional lives of Washington-based government lawyers are the ones that sued to challenge the Obama administration policy, and they are the ones the judge said had been harmed by misconduct.
The judge said he was acting on the ethical issue at this point to remove the last potential barrier to a clear path for the Supreme Court to decide the pending case. He would have waited until the Justices had issued a decision, he said, but that was his expectation when the case moved up to the Supreme Court before there had been a full trial in his court.
Now, with the Justices having expanded the scope of their review, he said it appeared that the Court will decide the controversy in a final way this Term, and the case would not be returned to him so that he could then deal with the ethical question.
“Since there is no doubt that misconduct has occurred, and since there is for the first time a possibility that this case will not be remanded,” Judge Hanen wrote, “the court will take this opportunity to dispose of the only impediment to the Supreme Court issuing a complete and final judgment in this matter. The misconduct in this case was intentional, serious and material. In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct.”
So as not to interfere with the Justices’ review, he said, he had decided not to impose a remedy that otherwise might have been justified for “blatant misconduct” of “such magnitude” — that is, an order to strike all of the government’s legal filings in the case. Doing so apparently would have brought the case to an abrupt end, with a default ruling in favor of the twenty-six states who sued to challenge the Obama policy.
While the judge said such action was within his power and said he felt that the ethical misconduct would merit it, he remarked that using that power not only would have been unfair to the two sides in the case, but also might even be “disrespectful of the Supreme Court as it would deprive that Court of the ability to thrash out the legal issues in this case.” “The national importance of the outcome of this litigation,” he contended, “outweighs the benefits to be gained by implementing the ultimate sanction.”
The judge’s grievance with Justice Department attorneys who appeared before him (but were not named in his order) came during the time when the case was unfolding in late December 2014 and in January 2015. He found that those attorneys had repeatedly assured him and lawyers for the suing states that the Obama administration was not doing anything to put the new policy into effect. The judge said he and the states had relied upon those assurances in working out procedural steps in the case, including the timing of his order to block enforcement.
He said that he had found that those very attorneys were aware that government officials had already given the benefit of the new policy to more than 100,000 young people who were scheduled to be covered under the program if it were allowed to go into effect. Judge Hanen in February of last year did issue an order — based on his legal findings about the policy, not the misconduct he found — that blocked enforcement of the new policy, nationwide. Until Thursday, he had taken no final action on the ethical issue.
His order blocking enforcement is now under review by the Justices in the case of United States v. Texas — an appeal by the Obama administration. Although the initial question for the Court was whether Judge Hanen was wrong in blocking the policy, the Court has broadly expanded its review to encompass the legality and constitutionality of the entire policy.
The judge noted that the Justice Department had apologized for having provided misinformation, but he went on to conclude that the attorneys’ behavior could not be treated as merely a mistake or an inadvertence. The misconduct was done intentionally, he ruled. He decided that the states that had sued were deprived of a legal right — the right to an earlier order against enforcement of the policy — as a direct result of the action of the government attorneys.
In deciding upon remedies, the judge said he had taken off the table not only the option of striking of all of the government’s legal filings, but also any assessment on the federal government of the states’ fees for their attorneys and court costs. That remedy, he said, would only shift the burden onto the taxpayers and would leave the Justice Department “unscathed,” even though it was “actually responsible for this mess.” He added: “Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.”
Even without those two potential remedies, however, the ones that he chose to impose were sweeping and highly controversial. The government is likely to try to appeal to challenge at least some of what he ordered.
In detail, here is what he imposed as an ethical remedy:
First, to make sure that any Justice Department attorney who “appears or seeks to appear” in any court in any of the twenty-states that have been harmed by the misconduct he found is aware of his or her ethical duties, each must attend a legal ethics course every year for the next five years.
Second, those courses in “ethical training” are to be at least three hours in length each year and must include the ethical requirements for candor to a court and truthfulness to “third parties” as spelled out in the code of each court where the attorneys would appear in those states.
Third, the training is to be provided by at least “one recognized ethics expert” not affiliated with the Justice Department.
Fourth, the attorneys must attend that training in person, and cannot do so online or through “self-study.”
To carry out these requirements, Judge Hanen ordered Attorney General Loretta Lynch to name a compliance officer within her department, who must file an annual report with the judge listing the Washington-based attorneys who took the required training with details of their appearances and of the training they received. The first such report is due by the end of this year, and reports will continue to be due until the end of 2021, according to the order.
Going even further, the judge told Lynch to file within sixty days a “comprehensive plan to prevent this unethical conduct from ever occurring again.” And, within sixty days, she must also inform the judge of steps she will take to make sure that the department’s own internal Office of Professional Responsibility polices the conduct of attorneys and disciplines them for misconduct.
The judge absolved Lynch herself of any blame, noting that none of the misconduct he found occurred since she became attorney general. He also similarly absolved lawyers in the department’s office of U.S. attorneys in Hanen’s judicial district.
The judge added another sanction that appears to have the potential to withdraw any benefits to the young immigrants who received them between November 20, 2014, and March 3, 2015 — the period during which he said such benefits were wrongly provided without disclosure at the time by the government attorneys. He gave the Justice Department until June 10 of this year to provide a full list of each person who benefited during that time span.
The specific benefit that he identified was the grant of a three-year delay of deportation, rather than a two-year delay available under an earlier delayed enforcement policy. Another year of potential delay was added by the Obama administration for young adults covered by that particular program when the broader policy for adults was adopted in November 2014.
The earlier program for young adults, adopted in 2012, is not under challenge in the states’ lawsuit except for changes to it adopted in 2014.
The judge conceded that he did not have the authority to disbar the lawyers involved, but he asserted that he did have the authority to revoke the temporary permission he had given them to appear in his court. He said he had done the latter in a separate order, which is still under seal.
The Supreme Court heard oral arguments on the validity of the policy on April 18. Since then, there has been no public action taken on it. It is assumed that the Justices will decide it before the current Term ends, probably in late June. Before Judge Hanen issued his new order on Thursday, there was no indication that the Court’s review might have been affected in any way by his review of the ethical question.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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