As is well known, there was a significant divergence in the timeline sometime early in 2020. Experts have been struggling over the past two years to determine precisely how and why the Event took place, and we follow their studies with the same interest and concern that many very naturally share. During the time since the Event, the divergence between Timeline A (our own) and Timeline B has been revealed through certain irruptions, though the mechanism of the irruptions remains cloaked in mystery. The predictability of such irruptions is low: sometimes there will be several in a short period of time, followed by long stretches without any. One such irruption is a copy of what appears to be an opinion of Supreme Court of the Empire of Newgarth in a case called Patel v. Wreath, Attorney General. Our Timeline’s Supreme Court’s opinion in Patel v. Garland was recently handed down. It should be noted that—based upon some other objects that were part of the irruption—that the opinions in the Timeline B case were drafts, leaked by a clerk unhappy with the very concept of a split nondecision. Whether or not the Newgarth Patel opinion is complete or whether the circumstances under which it was released in either Timeline were altogether morally creditable, the opinion presents Timeline A lawyers and judges with an unparalleled opportunity to consider the alternative approaches taken in Timeline B. (The name “Empire of Newgarth” and other differences reflected in the opinion suggest that the consequences of the Event are perhaps even more far-reaching than even the most alarmist experts previously thought; however, this is a law blog not an Event Studies or Event Physics blog and we leave those matters to the experts.)
The Editors
SUPREME COURT OF THE EMPIRE OF NEWGARTH
PATEL, et al. v. WREATH, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE SPECIAL
APPELLATE COURT FOR THE GULF EXCLUSION ZONE
(FORMERLY THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT)
[Editors’ Note: The facts of the decision seem to be substantially similar, mutatis mutandis, to the facts in our Timeline’s Supreme Court’s decision, and the reader is directed to Justice Barrett’s opinion for those facts.]
Hadrian Dumoulin, C.J.
To a boy with a hammer, the whole world is in need of hammering. To appellate judges, it would seem, the whole world is in need of appellate review. But does anything in our Constitutional tradition or the natural law compel such a result in general, or in particular for this case, Patel v. Wreath? To put the second question somewhat differently, must the legislature require federal appellate review?
The answer to the first question, for reasons which I will explain, is “in a way yes, in a way no,” but the answer to the second is a resounding no.
Let us begin with the natural law. St. Thomas Aquinas, in Questions 95 and 96 of the Treatise on Law, answers the question of whether animate or inanimate (or impersonal) justice is superior. If there were a perfect judge—animate justice itself—he would be superior to any impersonal justice. All rules or norms suffer from indeterminacy: such a judge, all-wise and all-just, however, would be able to judge perfectly in both central and marginal cases. Nevertheless, due to the fallibility of both human prudence and human justice, Aquinas, following Aristotle, states that “it is better that all things be regulated by law than left to be decided by Judges.” (ST I-II q.95 a.5 ad 2.) For this, Aquinas gives the following reasons: first, it is easier to find a few wise men able to frame general laws than the many wise men who would be needed to judge in every single particular case; second, because those who make the general law do so beforehand and take many instances into consideration, whereas the particular case has to be pronounced as soon as it arises and by itself; and third, because lawmakers think of the rule in the abstract and in general, whereas the judge of a particular case is concerned with concrete singulars present before himself, and thus can be more readily led astray by passion and prejudice. For these reasons, and because of our all-too-human limitations, there is, in the natural law tradition, a strong baseline presumption in favor of adherence to general law. Aquinas has therefore set out (at least implicitly) a tripartite ranking. Best is animate justice itself. Second best, where animate justice is not possible or likely, is impersonal justice. Animate injustice is by far the worst.
In parallel, Aquinas analyzes impersonal justice, dividing it into an elegant three-part structure to try to ameliorate, as much as possible, the limitations of general rules, as well as the limitations of their implementing officials. The baseline presumption, due to the limits of human officials, is that general law should be closely adhered to in central cases. In order to preserve the character of law as such, however, there is an override to this presumption, due to the shortcomings of both rules and legislators. Because legislators are, like implementing officials, also fallible humans, and because all rules suffer from indeterminacy (what Aristotle would call the indeterminacy of matter), general laws cannot cover all possible cases. In the marginal or edge case, perverse results can actually sever the ordination of law to the common good contrary to the intent of the legislator. Aquinas, in line with the natural law tradition, states that in these marginal cases the implementing official can and should apply dispensation. Which is to say, equity overrides law in edge cases. But this leads to a new problem: how to distinguish between edge and central cases? To reformulate the initial analogy, all the world may look like edge cases. The very reasons for adhering to general rules in the first place are the very things tempting the implementing official to depart from it even in central cases: in considering the concrete case, the particular circumstances and facts can cause passion and prejudice to cloud the view of the implementing official and cause him to mistakenly think he is dealing with a marginal case.
With this in mind, Aquinas distinguishes how dispensation applies to two different sorts of marginal cases. (ST I-II q.96 a.6.) The first is the emergency, some peril that threatens the commonweal and the very legality of the norm itself (because both the commonweal and law itself depends on an order to the common good). The paradigmatic example is the case of the enemy at the gates. In this case, the necessity itself authorizes the dispensation. In non-emergency cases, where there is no sudden risk needing immediate dispensation, Aquinas states that dispensation may be granted only by those who are in authority and have power in similar cases. “It is not competent for everyone to expound what is useful and what is not useful to the state: those alone can do this who are in authority, and who, on account of such like cases, have the power to dispense from the laws.” Id.
But Aquinas is entirely agnostic as to who exactly should have this dispensing authority in non-emergency cases. An overly facile application of Thomas’s scheme to modern situations would note that in our tradition, the executive, legislative, and judicial powers are separated, and leave it at that. A more careful analysis would realize that implementing officials—those with the power to implement as well as to dispense—are found as frequently in the executive branch as the judicial. And this is rightly so. No one, for instance, would regard it as anything but judicial usurpation if a judge were to try to second guess the grant vel non of an executive pardon. But what is an executive pardon but an implementing official granting a dispensation? Likewise, the executive’s power of prosecutorial discretion is all but unreviewable. (The extreme and mostly hypothetical cases in which it might be reviewable are exceptions that prove the rule.) Similarly, the question of immigration has always been viewed as primarily a matter for the executive.
I turn now to the statutory scheme in question and the facts of the case at hand. Congress has set forth a comprehensive law detailing when noncitizens may enter and remain in the Empire of Newgarth. First, any noncitizen who enters illegally may be removed. 8 E.N.C. §§ 1182, 1227, 1229a. (Here we see the general impersonal law of Aquinas’s tripartite scheme.) Removal proceedings are conducted by immigration judges whose authority is delegated by the Attorney General. See 8 E.N.C. § 1229(a)(1); 8 CFR §§1240.1(a)(1); 1245.2(a)(1)(i). Congress has also authorized a dispensation mechanism for marginal cases. The Attorney General has discretion to adjust the status of eligible noncitizens who illegally entered, forgiving them the illegal entry and protecting them from removal on that ground. See §1255(i). This power too the Attorney General has delegated to the immigration judges. (Here we see the dispensing mechanism for marginal cases applied by the implementing official—decidedly not a federal Article III judge here.) The relief may be applied only towards eligible noncitizens, but that relief itself will always be a matter of pure equity, “a matter of grace.” INS v. St. Cyr, 533 E.N. 289, 308 (2001). Note too that the implementing official who dispenses this “grace” is not the self-supposed omnipotent and omniscient federal judge, but rather a member of the executive branch.
Congress, indeed, originally saw no need for federal judges to have a role at all. “Notwithstanding any other provision of law (statutory or nonstatutory)…no court shall have jurisdiction to review…any judgment regarding the granting of relief[.]” 8 E.N.C. § 1252(a)(2)(B). And this with some reason—as with many administrative matters, federal judges are poorly positioned to provide review of the administrative officials, in complex and fact-dependent matters. Often, increased review of complex administrative matters by federal judges will result on the whole in increased error rather than decreased error. Indeed, it was only after this Court cast doubt on the constitutionality of the entire statute in INS v. St. Cyr that Congress added a limited role for the federal judiciary. (Neither party has asked us to take up whether this part of the holding was correct, and we do not take up that question sua sponte.) After St. Cyr, Congress added that “Nothing in subparagraph (B)…shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” § 1252(a)(2)(D). This limited exception does not grant to us the review of questions of fact. That review is retained rather by the executive branch.
The facts of this case are as follows: Patel entered the country illegally in the 1990s. In 2007, Patel applied to Empire of Newgarth Citizenship and Immigration Services (ENCIS) for an adjustment of his status under § 1255(i). If granted, Patel would have had his illegal entry forgiven and would have become a lawful permanent resident. While this request was pending, Patel filled out a Georgia’s driver’s license application and falsely stated that he was a Newgarthian citizen. ENCIS denied Patel’s application for adjustment of status because of this misrepresentation, finding that he was ineligible for a status adjustment. See 8 E.N.C. §§ 1182(a)(6)(C)(ii)(I) and 1255(i)(2)(A).
Several years later, DHS initiated removal proceedings against the Patels. Patel conceded he was removable but sought an adjustment of status and requested once again his request for discretionary adjustment of his status to lawful permanent resident. Patel now argued in front of the Immigration Judge (IJ) that he had merely checked the “citizen” box by accident, and therefore lacked the subjective intent that BIA interpreted § 1182(a)(6)(C)(ii)(I) to require. The IJ concluded otherwise. The IJ found that Patel was evasive when questioned about exactly how he had made this mistake, and in fact stated that he had provided his alien registration number on his application when he had not. The IJ also found that Patel had falsely represented his manner of entry into Newgarth on an application for asylum. The IJ found that he was not credible, and had intentionally misrepresented himself as a citizen.
Contrary to the view of my dissenting colleagues, the natural law requirements of due process and dispensation are amply satisfied by the statutory scheme that Congress has entrusted to the executive branch. Equitable relief was available to Patel, without our review. And equitable relief was denied based on rational fact-finding. (“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” § 1252(b)(4)(B).) The only question then is whether there is something special about five people in robes that compels the conclusion that equity is not satisfied until they make a de novo, all things considered determination about what they would do. We cannot say that any such requirement exists in the natural law. Nor does such a requirement exist in our constitutional or administrative law. (See, e.g., Cass Sunstein & Adrian Vermeule, Law and Leviathan (2020) for an argument legitimating the “inner morality” of the administrative state.)
Instead, the person best equipped to make the equitable decision—the person, in other words, best equipped to judge the concrete circumstances of the case—denied Patel’s prayer for equitable relief. Seeing that the legislature left this decision to the executive branch, I believe we should uphold the IJ’s determination.
I would affirm the Appellate Court for the Gulf Exclusion Zone.
Antonio Profondiero, J.
I take it for granted that 8 E.N.C. § 1182(a)(6)(C)(ii)(I) applies to Patel. I likewise take it for granted that the Board of Immigration Appeals has correctly interpreted Section 1182(a)(6)(C)(ii)(I) and that it applies to Patel. And I take it for granted that Section 1252(a)(2)(B)(i) reflects some sort of legislative intent to make decisions like the one the immigration judge here made nonreviewable. I write separately to emphasize that this is not the end of the analysis. We must consider whether the circumstances in Patel’s case warrant the exercise of equitable jurisdiction rooted deeply in the tradition of western law.
We find in Blackstone that, “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.” 1 William Blackstone, Commentaries on the Laws of England *59 (1769, Oxford ed. 2016). It is this last point—the spirit and reason of the law—that is significant. For by
this method of interpreting laws . . . arises what we call equity; which is thus defined by Grotius,“the correction of that, wherein the law (by reason of its universality) is deficient.” For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted.
Ibid. at *60. On this point, Blackstone and his authority Grotius are by no means outside the tradition of western law.
The Roman jurist Modestinus, in his Replies, later collected in Justinian’s Digest, tells us, “[i]t is not allowable under any principle of law or generous maxim of equity that measures introduced favorably to men’s interests should be extended by us through a sterner mode of interpretation on the side of severity and against those very interests” (Dig. 1.3.25). Thomas Aquinas later takes up this note in his Treatise on Law, addressing the question whether someone under the law may act beside the law. Aquinas tells us:
Now it happens often that the observance of some point of law conduces to the common weal in the majority of instances, and yet, in some cases, is very hurtful. Since then the lawgiver cannot have in view every single case, he shapes the law according to what happens most frequently, by directing his attention to the common good. Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed.
(ST I-II q.96 a.6 co.) Aquinas also identifies “epikeia” (or equity) as a virtue and general part of justice, reasoning again: “[l]egislators in framing laws attend to what commonly happens: although if the law be applied to certain cases it will frustrate the equality of justice and be injurious to the common good, which the law has in view” (ST II-II q.120 a.1 co.). The virtue of epikeia, for Aquinas, does not involve second-guessing the legislature, but instead moderating the effects of legislation in a particular case (ST II-II q.120 a.1 ad 2).
The tradition in this Nation, going back via Blackstone and Grotius to the foundations of western law, including Thomas Aquinas and the Digest of Justinian, is that courts recognize that “in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted.” Blackstone, supra at *60. Therefore, even if a statute on its face precludes review—as 8 E.N.C. § 1252(a)(2)(B) does in cases except those involving legal or constitutional questions—a court may under specific circumstances (i.e., when the observance of the law would be contrary to the common good) act beside the letter of the law. In this case, a court may review a decision of the BIA on grounds beyond the narrow confines carved out in Section 1252(a)(2)(D).
However, it is not clear to me that—under the facts of this case—the application of 8 E.N.C. § 1252(a)(2)(B) is harmful to the common good. Moreover, it is not clear to me that the legislator did not foresee this specific case. Ultimately, Patel raises a claim that “no reasonable adjudicator” could have failed to believe his testimony, especially in light of the fact that the immigration judge was simply wrong about Georgia law. However, there were other dubious aspects about Patel’s testimony. Patel was, according to the immigration judge, evasive when he made the fateful error on his driver’s license application. He made a misstatement about whether or not he put his alien registration number on his application. And he misrepresented how he entered the country in his asylum application. In other words, based on a range of factors, all of which the immigration judge observed at a hearing, the immigration judge decided to discount Patel’s credibility.
This is not the sort of glaring factual error that justifies an extraordinary exercise of a court’s jurisdiction—that requires the exercise of epikeia. A judge did not believe a witness because the judge thought the witness was evasive and made misstatements. This happens every day, and is the sort of thing that anyone writing laws calling for hearings would expect. In other words, I see no reason to conclude that the legislator did not foresee an immigration judge making this sort of decision. For this reason, while I believe that in general a court can look past Section 1252(a)(2)(B), I do not believe that the circumstances of this case justify such extraordinary relief.
I would affirm the Appellate Court for the Gulf Exclusion Zone.
Nikolaos Prophylactopholos, J.
If the government seeks to restrict a person’s liberty, it must be required to follow its own rules. The government did not do so in this case, and a man will now be deported because of it.
The principal facts and procedural posture in this case are not in dispute. Mr. Patel checked the wrong box on an application form for a Georgia driver’s license, thereby mistakenly asserting he was a Newgarth citizen. In fact he was not, but he did have papers granting him the right to remain in the country while his application for a green card was being processed. Those papers entitled Mr. Patel to a Georgia driver’s license under state law, regardless of whether Mr. Patel checked the box stating he was a citizen or not. And that is the key point—at no time did Mr. Patel ever receive a benefit from his mistake, nor could he have under Georgia law, and at no time did Mr. Patel commit any crime under federal or Georgia state law.
The state of Georgia considered bringing charges against Mr. Patel but ultimately dropped the case for a simple reason—it could not prove he had a subjective intent to falsify his citizenship status in order to obtain a benefit. And statutory eligibility for discretionary relief under § 1255 requires that the noncitizen not “falsely represent … himself or herself to be a citizen of the Empire of Newgarth for any purpose or benefit under” state or federal law.” 8 E.N.C. 1182(a)(6)(C)(ii) (emphasis added). Again, Mr. Patel had no purpose and received no benefit from checking the wrong box regarding his citizenship status.
Nevertheless, the Court today allows to stand, by an evenly divided decision resulting in the affirmance of the circuit below, the IJ’s decision to deport Mr. Patel. Why? Because some justices believe that the Court cannot rectify a clear mistake, based in law and fact, about Mr. Patel’s statutory eligibility based on their interpretation of 8 E.N.C. § 1252(a)(2)(B)(i) withdrawing from the Court’s jurisdiction the review of any “judgment regarding the granting of relief under” sections 1182 and 1255. They hold that the BIA’s decision regarding statutory relief—though based on an inequitable and unreasonable application of the law to the undisputed facts—is completely and forever withdrawn from judicial review.
As the New York Court of Appeals once stated in Riggs v. Palmer, “Qui haeret in litera, haeret in cortice”—“he who clings to the letter sticks to the bark.” Too literal an interpretation of the statutory text fails to reach the heart of the matter. The clear intent of the legislators in Section 1252, and the purpose for which it was drafted, was to deny eligibility for immigration status relief from those who seek to obtain the benefit of citizenship by fraudulently claiming such rights before the government. But it is undisputed that Mr. Patel obtained no benefit, nor could he have. Therefore, the IJ was arbitrary—and arbitrarily wrong—in deciding that he was subjectively attempting to obtain such an impossible benefit.
It is a hoary maxim of the law, originating in the ius gentium, that “[b]y an equitable construction, a case not within the letter of the statute is sometimes holden to be within the meaning, because it is within the mischief for which a remedy is provided. The reason for such construction is that the law-makers could not set down every case in express terms.” Matthew Bacon, A New Abridgment of the Law, “Statutes,” I, 5. And again: “Equity is the correction of that wherein the law, by reason of its generality, is deficient.” Finally, let us not forget that immigration and deportation matters are ultimately quasi-penal in nature. For penal and criminal statutes, the Rule of Lenity applies. As Chief Justice Marshall once put it, “The rule that penal laws are to be considered strictly is perhaps not much less old than construction itself.” Newgarth v. Wiltberger, 18 U.S. 76, 95 (1820).
Applying the Rule of Lenity here, it is undisputed that Mr. Patel’s mistaken representation regarding his status as a citizen was for no purpose and entitled him to no benefit. The state of Georgia ultimately agreed. Strictly construing § 1252(a)(2)(B)(i), that should be the end of the matter. But the BIA administrative law judges did not end the matter, and now the Court affirms the Circuit Court’s decision holding that we cannot correct that error because a statutory withdrawal of judicial review governs.
I would not be so parsimonious in applying the Rule of Lenity or in granting equity. Absent a clear statement from Congress to the opposite effect, it could not have been Congress’ intention to permit the government to withdraw from judicial review an arbitrary administrative decision improperly applying the law to an undisputed fact. Equity exists for this very reason. I would hold that the Court does have authority to review such plainly incorrect decisions in its equitable power and reverse the Circuit below. I respectfully, politely, courteously, decorously, and considerately dissent, with all due respect, politeness, etc.
Ellen MacGyver, J.
I join Justice Prophylactopholos’s opinion and would reverse the Appellate Court for the Gulf Exclusion Zone. I write separately to emphasize two points. First, Justice Prophylactopholos’s approach to the ius gentium has deep roots in the common law of this Nation. Second, Justice Smith, notwithstanding his choice not to decide, correctly observes that the mistake the immigration judge made in this case was really a mistake of law, reviewable by federal courts under CITE. Indeed, Justice Smith’s distinction no less than Justice Prophylactopholos‘s has deep roots in the Newgarthian tradition. For these reasons I would reverse the Appellate Court below.
William Blackstone, in his Commentaries on the Laws of England, devotes an entire chapter to offenses against the law of nations. Principally he is concerned with offenses against ambassadors and piracy, but he recognizes that the ius gentium forms an important background to the “municipal law of the country.” 4 W. Blackstone, Commentaries on the Laws of England *67 (1769 ed.). He observes in particular, “since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land.” 4 Commentaries *67. Indeed, whenever the legislature specifically adopts part of the ius gentium, its law is “not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world.” 4 Commentaries *67.
Justice Story, in his magisterial treatise on the conflict of laws, once noted that foreign law must be found by the jury—based upon the instruction of the trial court. Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic §§ 639 n.1 (1834 ed.). That is to say, at common law, the court determines the proper proof of foreign laws and the applicability of those laws to the case at hand. Story, Conflict of Laws § 639. Having done so, the court instructs the jury as to the result that would obtain under the foreign law. Lord Mansfield in the celebrated case of Mostyn v. Fabrigas observed as much: “The way of knowing foreign laws is by admitting them to be proved as facts; and the Court must assist the jury in ascertaining what the law is.”
The Empire of Newgarth cleared up this murky mixed question in 1966 with the adoption of Federal Rule of Civil Procedure 44.1 that the court’s determination of a matter of foreign law is a question of law. While it is true that Justice Story was considering truly foreign law, it must be remembered that under our federal system, Newgarth and Georgia are two sovereigns. Justice Smith is therefore, in my view, correct when he indicates that the question of Georgia law is an antecedent question of law, not a question of fact, and on its face reviewable under CITE. Applying the historical understanding of this particular question, going back to the very foundation of the Republic, the Appellate Court simply got it wrong.
I would reverse the Appellate Court for the Gulf Exclusion Zone.
Charles Smith, J.
This case is exceptional—so exceptional that a crisis of jurisprudence looms.
The immigration judge’s “factual” finding actually rested, in critical part, on an antecedent mistake of law. The immigration judge found that Patel had deliberately checked the box marked for U.S. citizens on the Georgia drivers’ license form, and that Patel had misrepresented his intentions in subsequent statements. One of the major grounds for this finding was that, in the judge’s view, Patel had every incentive to check the wrong box, for otherwise he would be legally ineligible to obtain a license. That view turns out to rest on a mistake about the relevant Georgia law, however, for Georgia law does not actually require license applicants to be U.S. citizens, so long as they have a pending application for lawful permanent residence (and other documentation), as Patel did. Hence the immigration judge erred in believing that the underlying Georgia law gave Patel an incentive to falsely claim citizenship.
One might think this ends the case. All parties (including the amicus) and all my colleagues are agreed, correctly so, that errors of law are reviewable; so too are factual findings predicated on legal error. True, there was other evidence of Patel’s intent to misrepresent, but that would merely raise the question whether the judge’s error as to incentive, resting on antecedent legal error, was or was not harmless error, all things considered; it would not go to the question of reviewability.
On the other hand, it seems highly plausible that Patel himself made the very same error. If so, the incentive to misrepresent was restored, for Patel would have thought that checking the box was the only way to obtain a license, and then the judge’s suspicion of intent to misrepresent was stronger in its turn. The very same legal error that undermines the immigration judge’s finding also confirms it, when made by Patel. On yet another hand—and my reading of a prominent columnist for the Times has persuaded me that there is always another hand, and another and another—it is unclear whether the judge knew of or took evidence on Patel’s possible mistake about Georgia law, probably because the judge himself did not realize it was one. The judge may have written better than he knew. Which is more fundamental, which antecedent to the other—Patel’s mistake or that of the judge? One might debate such issues for a lifetime, in an endless judicial conversation.
In light of my anguished conflict over these complexities, I am unable to vote either for or against the claimant. One must decide—but who decides? Who will constitute themselves sovereign to resolve this exceptional case? One must choose between Christ and Barabbas, yet the problem here is to know who is who; who has ultimate authority to answer that question; and who has ultimate authority to answer that question, in its turn. The regress is infinite.
In my characteristic Epimethean style, I have belatedly realized that I was always ill-suited to be a judge. I therefore announce that I am leaving the bench, effective immediately, and withdrawing to a hermitage in the dark forest of Southern Indiana, where dwells my favorite brother, Patrick J. Smith. This leaves the Court equally divided, which means that the judgment against Patel in the court below is affirmed.
It is so ordered.