D. Michael Fisher
How Judge Fisher rules, drawn from 35 signed orders. Every observation links to the order it came from.
How Judge Fisher decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
In an Armed Career Criminal Act appeal, Fisher used the federal drug schedule in effect when the defendant committed the federal firearm offense. The federal saving statute preserved the penalties then incurred because Congress had not made its later decriminalization of hemp retroactive.
“Consequently, we hold that, absent contrary statutory language, we look to federal law in effect at the time of commission of the federal offense when using the categorical approach to determine if prior offenses are ACCA predicates.”
In a retaliation case, Fisher distinguished the plaintiff's initial burden from the ultimate burden of persuasion. At the prima facie stage, evidence supporting an inference that protected activity likely prompted the adverse action was sufficient without proof of but-for causation.
“We hold that, at the prima facie stage, a plaintiff need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason.”
In a grand-jury dispute involving the Speech or Debate Clause, Fisher required mixed communications to be analyzed component by component. Legislative material could be protected without insulating separable political or personal material from questioning.
“Rather, the legislative components should be separated from the non-legislative components, if possible, and the latter may be the subject of questioning.”
Procedural preferences
In a sentencing appeal, Fisher confined Rule 35(a) to readily identifiable clear errors akin to arithmetic, technical, or clerical mistakes. A disputed legal issue better suited to direct appeal could not support an after-the-fact sentence increase.
“Rule 35(a)’s exceedingly narrow language simply does not permit the District Court’s correction to M.M.’s sentence.”
Cautions
In a corporate-indemnification dispute, Fisher declined to resolve an ambiguous bylaw term on summary judgment. Conflicting evidence about appointment practices, prior indemnification decisions, and industry usage presented factual questions for a jury.
“We conclude that the term officer is ambiguous and that the relevant extrinsic evidence raises genuine issues of material fact precluding summary judgment.”
In Timofey V, Fisher affirmed denial of return because the appellants were not yet lawfully entitled to receive the seized domain, while warning that prolonged retention without indictment or communication was nearing the limits of reasonableness.
“But no indictment and no communication with the property owner for more than twenty months would seem to be approaching the limits of reasonableness.”
In his Laureano separate writing, Fisher treated the Attorney General’s drug-trafficking framework as a difficult but rebuttable presumption that guides individualized agency review rather than a categorical bar.
“Matter of Y-L- provides guidance to IJs, not a guarantee that a withholding application will be denied.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“We conclude that this decision was in error, and will reverse.”
“For the reasons stated below, we will affirm the judgment of the District Court.”
“For the reasons set forth below, we will affirm the District Court's decision.”
“For the reasons set forth below, we will affirm the judgment of the District Court.”
“For the reasons set forth, we will reverse the District Court's order.”
“we will affirm the District Court's holding in those regards. However, because the District Court failed to require a bond in connection with the injunction, as required by Federal Rule of Civil Procedure 65(c), we will vacate the injunction and remand with instructions to impose such a bond should the District Court reissue the injunction.”
“For the reasons stated herein, we will affirm, on partly different grounds, the District Court's order granting Chase's motion for summary judgment.”
“We will deny the petition for review.”
“Finding no such disputes, we will reverse.”
“For the reasons set forth below, we will grant the petition and remand for further proceedings.”
“The District Court granted summary judgment in favor of Teaneck on all of Appellants' claims. For the reasons set forth below, we will affirm.”
“Because petitioner has failed to meet his statutorily prescribed burden of demonstrating eligibility for relief from removal, we will affirm.”
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