.... BUT DEPARTMENT CLAIMING TO BE "JUSTICE" APPEALS TO REVERSE THE ORDER.
On June 23, 2021 a respected federal judge ruled that United States Immigration and Customs Enforcement (ICE) had to make COVID vaccinations available within 30 days detained immigrants in ICE custody who have chronic medical conditions, or disabilities, or are age 55 or older. Download Fraihat v. U.S. ICE Doc. 318 Order Accepting Special Master's First Report and Recco June 23 2021 (C.D. Cal. No. 5.19.cv.01546.JGB.(SHKx))
In this order, the federal judge only accepted the Special Master's First Report and Recommendations. The Special Master is a retired judge. Download Fraihat v. U.S. ICE Doc. 304 Special Master's First Report and Recco May 21 2021 (C.D. Cal. No. 5.19.cv.01546.JGB.(SHKx)).
Here is what the Special Master recommended and what the federal judge accepted in his order to require ICE to:
- Continue its efforts to work with the Special Master and Plaintiffs’ counsel to confirm that all subclass members have had a individualized and meaningful review to determine if release is warranted and to conduct redeterminations where necessary;
2. Track the reasons for transfers of subclass members and provide that information to the Special Master and Plaintiffs’ counsel biweekly; and
3. Make vaccinations available to all subclass members within 30 days of the order accepting and adopting this Report and Recommendation.
This is not exactly the stuff of an appeal that is likely to be successful. Particularly orders entered after a Special Master's Report by a retired judge. There is nothing onerous about this order at all.
Think of this. Would you appeal it? Would you recommend that anyone appeal it? Why would anyone appeal this order to make vaccines available during a pandemic to people who are in U.S. ICE custody? This is a notice of appeal that simply did not have any reason behind it and every reason against it. The decision to file a notice of appeal never needed to be made here.
Except that the Special Master's Report and Recommendations may have been embarrassing to ICE. It detailed ICE's behavior, which people still at ICE may not want to be made public. One way to quash these findings is to appeal them and have the order accepting them reversed on appeal.
Avoiding embarrassment however has never been a reason for taking an appeal. Not a good reason anyway. And certainly not a good reason for the federal government to take an appeal.
Sixty-one (61) calendar days after the judge's order was entered accepting the Special Master's detailed report and recommendations, on August 23, 2021 the department of justice decided to file a notice of appeal. Download Fraihat v. U.S. ICE Doc. 329 Notice of Appeal by U.S. ICE August 23 2021 (C.D. Cal. No. 5.19.cv.01546.JGB.(SHKx))
That looks suspiciously like the last day of what would otherwise be a 60-day deadline to appeal. August 23rd was a Monday, the first available working or business day that an appeal likely could have been filed. Smells like the last minute to any lawyer who ever filed a notice of appeal in a situation like this or, for that matter, ever faced any unpleasant deadline.
In any case, the United States appealed an order to make COVID vaccine available to immigrants in the custody of ICE during a pandemic. And not to all immigrants during a pandemic, either, but to immigrants in the custody of ICE who are most at risk of catching and spreading COVID, immigrants in the custody of ICE who have chronic medical conditions, disabilities, or are age 55 and older.
The Acting Assistant Attorney General, BRIAN M. BOYNTON of the doj Civil Division, has already been profiled in this space. For example, MR. BOYNTON participated in earlier decisions to try to quash a subpoena for testimony on the former Education Secretary BETSY DeVOS. See DOJ UNFATHOMABLE SECRECY: WHY TRY TO SHIELD HER FROM TESTIFYING?
This time the notice of appeal from an order to provide vaccine to immigrants at risk to COVID in ICE custody was also signed by no less than six (6) other doj attorneys. All of the six are apparently employed in the doj Office of Immigration Litigation.
Unlike other doj employees previously profiled here, none of the Six went to Harvard Law. However, all of the Six shared a resume line with every other doj lawyer profiled here for past actions, such as attempting to derail the E. Jean Carroll litigation against The Former Guy: Every one of them worked in Bill Barr's department of justice and every one of them worked during the regime of The Former Guy.
This is clearly a pattern under MERRICK GARLAND, who holds the current title of attorney general. See IN MERRICK GARLAND'S DEPARTMENT, PROTECTING "CAREER YOUNG ATTORNEYS" MEANS "CYA."
To be continued ....
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