The Third Circuit Court of Appeals in Philadelphia has rejected a request to rehear cases in which two former inmates of the Moshannon Valley Processing Center near Philipsburg were awarded attorney’s fees and costs after they won their court battles to be released on bond.

But, as was evident last week, the Court of Appeals opinion granting $18,224 to Adewumi Abioye, a native of Nigeria, and $15,841 to Adolph Michelin, originally from Jamaica, was controversial.

The opinion was released in early February by a panel of Third Circuit judges that included Thomas L. Ambro, Theodiore A. McKee and L. Felipe Restrepo.

They concluded that the award of attorneys fees and costs were proper under the federal Equal Access to Justice Act, and they upheld the awards that were originally approved by magistrate judges in Pittsburgh.

In their opinion, they explained the Access to Justice Act provides attorney costs and fees in any civil case “if the government’s position is not substantially justified.”

They honed in on the fact that both Abioye and Michelin had been detained at Moshannon Valley for more than a year and a half and their ongoing detentions had no end in sight.

The Third Circuit panel ended their opinion citing the historic role of the Writ of Habeas Corpus and the inability of the government to justify additional detention of the two immigrants as dangers to the community.

Both had attorneys who filed Habeas petitions on their behalf.

“The Great Writ” the panel stated was used even prior to the United States Constitution for the population to ensure due process.

“It remains so today. With this history in mind, we affirm (the awards of attorney fees and costs),” the panel concluded in its February opinion.

Following the issuance of the opinion, the defendants in the case, including the warden of the detention center, the Department of Immigration and Customs Enforcement, the Department of Homeland Security and the United States Attorney General, sought a rehearing of the case to include the entire contingent of 17 active judges presiding in the Third Circuit.

In a statement last week, Ambro, who was on the panel upholding the awards of attorney fees and costs, denied the rehearing request.

He said that the rehearing request was presented to all the judges in the Third Circuit and a majority rejected the request, and therefore, it was denied.

However, Ambro reported that Judges Emil J. Bove, David J. Porter, Paul B. Matey and Peter J. Phipps dissented and sought a rehearing by the entire court.

Two dissenting opinions were issued, one by Bove and and second by Judge Jennifer L. Mascott.

Bove argued that a rehearing should have been granted.

He stated, in his opinion, “We should have reheard these cases en banc (the entire court sitting) because the question is one of exceptional importance and required our Court to choose sides in a deep Circuit split.”

He questioned whether the Equal Access to Justice Act allowed financial awards in immigration cases, and he stated the fee awards in the two cases at hand were inappropriate, noting, “The government’s positions regarding (the detention of the two men) were ‘substantially justified’ and the fee awards with respect to these two cases were ‘unjust.'”

Bove discussed each of the cases before the court.

Michelin, he explained, overstayed a tourist visa issued to him in 2012. He was later convicted of a marijuana offense and, in a separate instance, of resisting an officer.

“While remaining in the United States without authorization, (Michelin) was arrested several other times for offenses relating to narcotics, aggravated assault with a firearm and aggravated battery on a pregnant woman.”

He was arrested again on a narcotics charge in 2021 and was facing removal from the United States in 2022.

Michelin eventually was detained at Moshannon Valley pending an appeal to his removal.

The awarding of attorney fees for Michelin, even though he was granted bond, “was an abuse of discretion that led to an outcome Congress could not have intended,” Bove opined.

The determination that Michelin was not a risk and danger to the community was questionable, the dissenting judge continued.

Michelin had “lack of ties to the United States,” a lengthy “rap sheet” and had, at one point, fled while on bail.

The case involving Abioye was just as egregious, he explained.

Abioye, a Nigerian lawyer, came to the United States, and he, too, overstayed his visa.

He became involved in a “massive financial fraud” in which 10 victims lost $4.6 million. Of that amount, $1.5 million was found in accounts controlled by Abioye, Judge Bove outlined.

Abioye did jail time on his fraud charges and faced removal.

He, too, was sent to Moshannon Valley, but he eventually pursued and was granted bond.

His sentence for fraud requires him “to pay millions of dollars in forfeiture and restitution,” Bove stated.

Then, the dissenting judge concluded, “In effect, the fee award at issue directed the government to pay him instead,” the opinion stated.

The issue of the fee awards is not only broiling in the Third Circuit, but in most of the other Circuit Courts nationwide, the Bove opinion concluded.

While the February opinion cited William Blackstone’s Commentaries on the Laws of England as the root of Habeas Corpus in American law, the Bove opinion added, “While Habeas was generally available to review executive detention, Blackstone recognized the King had exclusive authority to exclude aliens.”

His dissenting opinion was joined by Judges Matey, Porter and Phipps.

Judge Jennifer L. Mascott, also filed a dissenting opinion to the decision not to rehear the case.

“The potential of receiving thousands of dollars in attorney’s fees creates a powerful incentive for detained, illegally present individuals to perpetuate and further extend their stay in the United States through the filing of Habeas claims,” she argued.

Mascott stated her concern that, since the panel issued its February opinion, “at least two district judges within this Circuit (which includes western Pennsylvania) have affirmatively encouraged detainees to consider filing for such fees.”

That’s why, she concluded, “These cases readily merit en banc consideration,” meaning review by a panel that includes all of the Third Circuit judges.