Saturday, October 21, 2006

Commentary: A New View Of Dicta in the Third Circuit?

This commentary piece questions whether the Third Circuit has vastly altered the traditional rule of precedential decisions by how it distinguished Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) in its decision of Auguste v. Ridge, 395 F.3d 123, 148 (3d Cir. 2005).

The issue of whether part of a Third Circuit decision is precedential or merely dicta is critical to know whether a future decision will be bound by the legal analysis in the earlier case. In Zubeda, the Third Circuit ruled that the BIA did a poor job of analyzing the legal issues and remanded the case to be decided consistent with the legal analysis in the Zubeda decision. Part of its decision was that to obtain relief under the Convention Against Torture, you do not need to prove that the people who will torture you have a specific intention to inflict suffering. Two years later, the Third Circuit ruled in Auguste that the portion of the Zubeda decision on specific intent was mere dicta so it was free to reach the opposite conclusion, that someone must prove that the people who will torture you also have a specific intention to inflict suffering.

How can the Third Circuit say the conclusion in Zubeda was mere dicta? After all, the court ordered the BIA to revisit the case consistent with its legal conclusions.

The Third Circuit struggled to find a way out, and claimed that because the court remanded the case to the BIA, it seems all other legal conclusions were mere dicta. Based on the traditional view of dicta, the court made a radical decision. This commentary asks what the new rule concerning dicta would be if the Third Circuit made a principled decision. (Put aside any cynical thoughts that the Third Circuit broke its rules to reach the decision it wanted.)

Perhaps the new rule is that when the Third Circuit remands a case for further proceedings, virtually everything in the decision is mere dicta. The only part that is controlling is the portion that literally and strictly deals with the precise issue that leads to remanding the case.

Please post your comments so we can hear your view on this extremely confusing issue. Try to set aside your cynicism that the Third Circuit cheated in Auguste and instead try to decipher what principled rule there might be.


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