Eleventh Circuit issues fractured 1-1-1 opinion today

Judge Pryor for the majority frames the issue this way: "This appeal requires us to decide whether a seaman can recover money damages under the Jones Act, 46 U.S.C. § 30104, for an injury stemming from excessive work hours and an erratic sleep schedule."  He then reverses, and renders judgment in favor of Maersk "because Skye’s complaint of an injury caused by work-related stress is not cognizable under the Jones Act, which concerns injuries caused by physical perils."

Judge Fay concurs, but asks the Supreme Court to jump in:  "Most respectfully, my hope is that the Supreme Court will revisit this area of the law. As Justice Ginsburg stated in her dissent in Gottshall: “Instead of the restrictive ‘zone’ test that leaves severely harmed workers remediless, however negligent their employers, the appropriate FELA claim threshold should be keyed to the genuineness and gravity of the worker’s injury.” Gottshall, 512 U.S. at 572, 114 S. Ct. at 2419 (Ginsburg, J., dissenting)."

And Judge Jordan dissents: "Congress enacted the Jones Act “for the benefit and protection of seamen who are peculiarly the wards of admiralty.” Atl. Sounding Co. v. Townsend, 557 U.S. 404, 417 (2009) (internal quotation marks omitted). Given that purpose, and absent definitive indication from the Supreme Court, I would not read the Jones Act to preclude liability for an employer who makes a seaman work so hard and so continuously that he suffers physical injury in the form of heart disease, heart attack, organ failure, seizure, or stroke."

Which side are you on?

Lawyer on the lam may be "armed and dangerous"

Paula McMahon has the details here:

The FBI has issued a 'Wanted' notice for a Broward County lawyer accused in a $19 million fraud — declaring him "armed and dangerous" — after he failed to show up for an April 29 court hearing.
Michael Ralph Casey, 67, of Oakland Park, has been missing for two weeks, according to the FBI in Miami.
Casey was indicted in August 2012 on federal mail and wire fraud conspiracy charges for his alleged involvement in what prosecutors said was an international investment scheme that defrauded more than 700 investors out of approximately $19 million in less than 18 months.
Federal prosecutors said that Casey, who practiced law in Fort Lauderdale for 36 years, conspired with two convicted felons to defraud investors. Casey was once the chairman of the Broward County Bar Association's Corporation, Banking and Business Law Section and had worked for several well-known law firms.
Casey "should be considered armed and dangerous," according to FBI officials. Anyone with information about him should contact their local FBI office or the nearest U.S. embassy or consulate.
FBI spokesman Michael Leverock said the warning was issued for the safety of any law enforcement officer or member of the public who comes into contact with Casey because agents were told that Casey may have access to a firearm.
"We also believe that anyone who flees while their case is going through the court process can be considered desperate," Leverock said.

Here's the FBI wanted poster.

"I don't think my legislative record that's over a decade old is indicative of what kind of judge I'd be [on the federal court]."

That was Michael Boggs, a Georgia Court of Appeals judge nominated by President Obama to the 11th Circuit, being grilled by the liberal wing of the Senate Judiciary Committee at today's hearing.  More from Talking Points Memo:

Seven nominees to federal courts in Georgia came before the Senate Judiciary Committee on Tuesday, but all eyes were on one of them: Michael Boggs, selected by President Barack Obama to serve as a U.S. district court judge.

The Georgia Court of Appeals judge has come under fierce criticism from progressive advocates for a swath of votes from 2000 to 2004 as a Georgia state legislator against abortion rights, same-sex marriage and to retain the state's old flag which contained the Confederate battle flag.

Democratic senators took the lead in grilling Boggs.
"I was offended by the flag, Senator," he told Senate Majority Whip Dick Durbin (D-IL) under questioning, saying it was a "terribly agonizing" decision to choose between his own conscience and the will of his constituents, whom he suggested wanted to keep the Confederate-linked flag. But he said: "I'm glad the flag was changed."
Boggs said he was very sensitive to the views of African-Americans at the time and that those who know him recognize his vote intended no disrespect to them. "If someone is accusing someone of being a racist, I don't know how you disprove that," he said.
Amid questioning from Sen. Richard Blumenthal (D-CT), Boggs declined to reveal his positions on abortion rights and marriage, saying they're "irrelevant" to how he'd act as a federal judge and that it would be "inappropriate" for a judge to discuss personal views.
 ***
 He disowned one bill he voted for, which would disclose the number of abortions performed by doctors, which critics said would endanger their safety. "In light of what I subsequently learned, I don't think it would be appropriate to" do that, Boggs said.
Notably, when asked about marriage rights, Boggs said his views "may or may not have changed" since he voted for a state constitutional amendment to ban same-sex marriage.
Senate Judiciary Chairman Patrick Leahy (D-VT) pointed out that Boggs and the other six nominees Tuesday were negotiated as a package deal between Obama and Georgia's two Republican senators, Johnny Isakson and Saxby Chambliss.
"I have noted before that there is no 'deal' negotiated with me as chairman of the Senate Judiciary Committee or with any of the other Senators," Leahy said in written testimony. "The constitutional responsibility of advice and consent resides with each individual Senator, and there is no such thing as a binding deal that negates each Senator’s responsibility to determine the fitness of a judicial nominee for a lifetime appointment."
Boggs promised Sen. Amy Klobuchar (D-MN) he'd abide by Supreme Court precedent when asked about rulings on contraception (Griswold v. Connecticut), federal treatment of gay married couples (Windsor v. US) and other gay rights rulings.
Sen. Dianne Feinstein (D-CA) voiced her skepticism with Boggs' promises to respect precedent, noting that nominees frequently make that promise to the Senate but behave differently when they become judges.
Boggs faced friendlier questioning from the committee's ranking member, Sen. Chuck Grassley (R-IA), who asked about his judicial philosophy but didn't bring up the other contentious issues.

91-0

That was the vote today, confirming Robin Rosenbaum to the 11th Circuit Court of Appeals (filling Judge Rosemary Barkett's seat).

CONGRATS TO JUDGE ROSENBAUM. 

She's only 47 years old and will be on the court a long time, helping to reshape it with other moderate judges appointed by President Obama -- Judges Jordan and Martin.

Now another seat opens up on the district bench.  

Back to blogging

A big thanks to Jeff Marcus and MNR for stepping up and guest blogging last week. Good stuff!

Lots of goings on in the district last week with the progression of new judges and the elevation of Judge Robin Rosenbaum to the 11th Circuit, which should officially happen today. Congratulations to Judge Rosenbaum in advance!

She's still busy though, sentencing Rogerio Scotton to 9 years on Friday. He was the race car driver who represented himself during trial and engaged in all kinds of shenanigans, including claiming (falsely) that he had a sex tape to prove his marriage was legit. Paula McMahon of the Sun-Sentinel has more:

He also was found guilty of two counts of lying to immigration officials about his marriage to a Cuban woman. Jurors found that the Brazilian citizen entered into a sham marriage with Ailyn Mollinedo in July 2008 so that he could remain in the United States.

Mollinedo testified that the marriage was one of convenience. She said that she had never lived with Scotton and never had sex with him. Under U.S. immigration rules, foreign citizens who marry Cuban nationals may qualify for U.S. permanent resident status.

Prosecutors said that Scotton bullied Mollinedo and tried to control her by holding on to her green card. Mollinedo testified that she entered into the marriage as a favor to Scotton and stayed in it because he threatened her and her family if she told the truth.

Scotton insisted that the marriage was real and insisted many times in court that he had video footage of him having sex with Mollinedo that he wanted to show the judge and jury to prove that their relationship was real.

The judge said Friday that there was no evidence at all that any such video had ever existed and that Scotton's continued pretense in court — to her and the jury — was "absolutely inappropriate and obstructive."

The sex-tapes pretense was just one of many inappropriate acts committed by Scotton, the judge said.

"I don't think they were indiscretions," Rosenbaum said. "I think they were purposeful attempts to mislead this jury and this court."

A "Holder Effect" on Federal Sentencing?

Last summer at the ABA delegate meeting, Attorney General Holder made news when he said what many of us in this business have known for a long time, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Speech here.  After the nation's chief law enforcement officer joined the chorus for sentencing reform, some legal pundits wondered whether there would be any kind of "Holder Effect" driving down the length of federal sentences.

Sentencing guru and law professor Doug Berman thinks there just might be (post here) and speculates that perhaps judges are thinking even harder about the wisdom of imposing guideline sentences that call for lengthy incarcerations.  Three weeks ago, the U.S. Sentencing Commission issued its quarterly sentencing data report for the last quarter of FY 2013 (here) and Professor Berman has finished crunching the numbers.  His analysis reveals a small uptick in judge-initiated, below-guideline sentences to just over 20% of all federal sentences (up from 18% from early 2013) -- the largest percentage of below-guideline sentences for any quarter on record.  But the news is not all good.  The single largest determinant of a below-guideline sentence still remains the recommendation of the prosecutor on behalf of a cooperating defendant.  

Is it too much to hope that the Department backs up AG Holder's words with below-guideline recommendations for non-cooperators in appropriate cases?  Now that would be change we could believe in.  

Confirmation Update: More Good Judicial News

Today, Judges Darrin Gayles and Beth Bloom both were approved by voice vote by the Senate Judiciary Committee.  Judge Robin Rosenbaum should have her vote in front of the full Senate completed sometime Monday. Best of luck to all three nominees.

Not Breaking News: It's Still Illegal to Carry a Concealed Gun in Florida During a Zombie Apocalpyse

From the "Only in Florida Department" on a slow news day.  The NRA is on high alert this week after a rare sunshine state legislative defeat.  The bill, which would have allowed Floridians to carry concealed firearms while evacuating during a state or local emergency, was voted down by the Florida Senate after Senator Dwight Bullard, apparent fan of The Walking Dead, sarcastically proposed the bill be amended to include any "act relating to the zombie apocalypse."  The Florida Sheriffs Association ("FSA") also opposed the bill, with one sheriff calling it "insane."  Standing its ground, the NRA issued a response alert (here) yesterday labeling the criticism of the FSA, the "barking of a cut dog."