An apt observation on word choice by the Eleventh Circuit

Today, the Eleventh Circuit issued an unpublished opinion in Fuentes-Rangel v. Woodman, which affirmed an order granting a petition asking that a child be returned to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act of 1988, or ICARA. The treaty and its implementing legislation command courts to return children to their countries of habitual residence if the children were wrongfully removed from their country or wrongfully retained in the United States. But there are narrow exceptions to this command, and lawyers who practice in this area most often describe these exceptions as "affirmative defenses." The lawyers in the Fuentes-Rangel case did so as well, which prompted the second footnote in the opinion. Here it is, in its entirety:

The parties describe Article 12 of the Hague Convention as an "affirmative defense." In ICARA, Congress described Article 12 as an "exception." See 22 U.S.C. § 9001(a)(4) ("Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies."); id. § 9003(e)(2)(B) ("[A] respondent who opposes the return of the child has the burden of establishing ... by a preponderance of the evidence that any other exception set forth in article 12 ... applies."). We do not decide whether Article 12 is properly categorized as an "affirmative defense" or if instead it is an "exception." We accept the parties' characterization.

We often characterize concepts embodied in statutes different from how the statutes actually characterize them. For example, most of our district judges adopt reports and recommendations. But the governing statute doesn't give them that option; instead, "[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (emphasis added). We also eagerly await the results of en banc decisions of the Eleventh Circuit, rather than in banc decisions of the Eleventh Circuit. See 28 U.S.C. § 46(c) ("A court in banc shall consist of all circuit judges in regular active service ...."). Common usage often carries the day.

So the Eleventh Circuit's observation on the lawyers' choice of words in Fuentes-Rangel was an interesting one. But -- for those of us who are into this kind of thing -- it was disappointing that the panel didn't ultimately weigh in. (I'm partial to exception. Not only does this have the benefit of tracking the language of the statute, but it seems to work better with how the Hague Convention and ICARA are designed to work.) Correcting usage isn't normally a reason to publish a decision. But there are always exceptions. See, e.g., In re UNR Indus. Inc., 20 F.3d 766, 769 (7th Cir. 1994) (Easterbrook, J.) ("There is a big difference between inability to alter the outcome (real mootness) and unwillingess to alter the outcome ('equitable mootness'). Using one word for two different concepts breeds confusion. Accordingly, we banish 'equitable mootness' from the (local) lexicon.").

Facebook comments calling judges "dumbasses" cost JNC appointment

Whoops.  The Tampa Tribune has the story about "Republican kingmaker Sam Rashid":

Valrico businessman and Republican kingmaker Sam Rashid has never been known to pull his punches.

But the outspoken Rashid managed to go a rant too far in a Facebook posting last week, referring to three unnamed Hillsborough County Circuit Judges as “dumbasses.”

Though he later edited the statement - replacing the word with “dumb mothers” - the posting cost Rashid a U.S. senatorial appointment to the Florida Federal Judicial Nominating Commission. The commission nominates candidates for federal judgeships, U.S. Attorneys and U.S. Marshals.

The posting also could prove an embarrassment to the presidential campaign of U.S. Sen. Marco Rubio, a longtime friend of Rashid who appointed him to the commission.

After accepting Rubio’s appointment on Friday, Rashid had to formally decline it a day later. In a Saturday letter to the senator’s general counsel, Gregg T. Nunziata, Rashid said he was clearly not the appropriate person to fill the commission post.

“I appreciate the Senator’s confidence,” Rashid wrote, “but I actually pre-judged some un-named Circuit Judges in Hillsborough County.”

Rashid credited Chris Ingram, a Republican consultant and columnist for The Tampa Tribune’s editorial page, for calling him out on the potential bias in his comments about the judges. Those same judges Rashid disparaged could someday come before him to seek an appointment to the federal bench, Ingram said.

“What Chris said made a lot of sense to me,” Rashid said. “I sent an e-mail to the senators saying, ‘You know what guys, I am biased. When it comes to these judges in Hillsborough County, I have a really strong bias.’”

HT Glenn Sugameli

FIFA = Racketeering Enterprise?

That's what the Eastern District of NY is alleging in this sweeping indictment against nine FIFA executives. The NY Times has this front page coverage:

Swiss authorities conducted an extraordinary early-morning operation here Wednesday to arrest several top soccer officials and extradite them to the United States on federal corruption charges.

As leaders of FIFA, soccer’s global governing body, gathered for their annual meeting, more than a dozen plainclothes Swiss law enforcement officials arrived unannounced at the Baur au Lac hotel, an elegant five-star property with views of the Alps and Lake Zurich. They went to the front desk to get room numbers and then proceeded upstairs.

The arrests were carried out peacefully. One FIFA official, Eduardo Li of Costa Rica, was led by the authorities from his room to a side-door exit of the hotel. He was allowed to bring his luggage, which was adorned with FIFA logos.

The charges, backed by an F.B.I. investigation, allege widespread corruption in FIFA over the past two decades, involving bids for World Cups as well as marketing and broadcast deals.

Several hours after the soccer officials were apprehended at the hotel, Swiss authorities said they had opened criminal cases related to the bids for the 2018 and 2022 World Cups — incidents that, more than any others, encapsulated FIFA’s unusual power dynamic. “In the course of said proceedings,” the Swiss officials said, “electronic data and documents were seized today at FIFA’s head office in Zurich.”

School's out!

Summer is here and we've hit the home stretch on the school year, but these students have much bigger concerns.  From the Miami Herald:

Caleb Fadet, who grew up in a working-class family in North Miami, seemed to be making all the right moves to get ahead in life.

He graduated with a criminal justice degree from Florida A&M, volunteered as a tutor in the federal AmeriCorps program and earned a scholarship to pursue a vocational degree in funeral sciences at Miami Dade College in 2012.

But Fadet did something really stupid along the way: For a lousy $550 kickback, he let a boyhood friend use his student bank account at MDC to deposit $18,000 in illegally obtained tax refunds from the Internal Revenue Service. Federal agents arrested Fadet two years later while he was working at the U.S. Postal Service and applying to join the Army.

On Tuesday, Fadet, 27, will learn his punishment — at best, probation; at worst, up to one year in prison — in Miami federal court. Either way, he will still have a felony record.

“Caleb is a good kid who made a terrible mistake,” his defense attorney, Adam Schwartz, told the Miami Herald. “He had a lapse in judgment, and it’s something that he will have to live with the rest of his life.”

Fadet, who pleaded guilty for his minor role in the fraud scheme, has plenty of classmates from MDC who got caught for committing the same crime, theft of government funds. He was among 18 students charged in November with allowing their Higher One bank accounts to be used for depositing ill-gotten IRS tax refunds.

Collectively, the 18 college students — along with three Target store employees named in one case — were accused of using Higher One bank accounts to receive about $500,000 in fraudulent income-tax refunds between 2011 and 2013. The online accounts are managed by traditional banks, such as Chase, Wells Fargo and Bank of America. In total, the defendants used the stolen IDs of 644 victims while trying to collect $1.9 million in IRS refunds, according to the U.S. attorney’s office.

Almost all of them have pleaded guilty and received relatively short sentences, from probation up to two years in prison — including a few punished for stealing other people’s names, dates of birth and Social Security numbers to commit tax fraud.

It's also the home stretch for the Supreme Court:

The Supreme Court is heading into the final month of its annual term.

In a potentially historic ruling, the court will decide whether same-sex couples have a right to marry nationwide, culminating a two-decade legal and political fight for marriage equality.

Another much-anticipated decision will be whether the Obama administration may continue to subsidize health insurance for low- and middle-income people who buy coverage in the 36 states that failed to establish an official insurance exchange of their own and instead use a federally run version.

If the court rules against the Obama administration, about 8.6 million people could lose their subsidies under the Affordable Care Act.
Ireland is first country to legalize same-sex marriage in popular vote
Ireland is first country to legalize same-sex marriage in popular vote

Between now and late June, the court will hand down more than two dozen decisions on matters such as politics, civil rights, free speech and air pollution. Several of these cases have been pending for months, suggesting the justices have been sharply split.

"A rose by any other name may smell as sweet. See William Shakespeare, 'Romeo and Juliet,' act 2, sc. 2. People, not so much."

Lots of awesomeness there by Judge Bloom in this order, which starts this way:

A rose by any other name may smell as sweet. See William Shakespeare, “Romeo and Juliet,” act 2, sc. 2. People, not so much. The Plaintiff in this matter, who originally filed his action under the name of “Raul Aguilar,” stood before the Court and stated his name to be “Manuel Antonio Aguilar.” Two hours and several iterations later, he identified himself as “Manuel Antonio Aguilar Salazar.” This encapsulates the misinformation and confabulation to which Plaintiff has subjected these proceedings. Now, ten months into the case, after two full length depositions, days before the close of discovery, and only a few months before trial, the Defendants, the Court and Plaintiff’s own counsel are still left wondering if the real plaintiff has stood up. “A trial is not a masquerade party nor is it a game of judicial hide-n-seek where the plaintiff may offer the defendant the added challenge of uncovering his real name. We sometimes speak of litigation as a search for the truth, but the parties ought not have to search for each other’s true identity.” Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006). Under the standard articulated and for the reasons set forth below, this case is dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b).

Have a nice weekend everyone.

H/T SFLawyers.

11th Circuit rejects Don Siegelman again

Here's the opinion by visiting Judge Ebel, a senior 10th Circuit judge.  The Montgomery Advertiser has this report on the former Alabama Governor:

A federal appeals court Wednesday denied former Gov. Don Siegelman's bid for a new trial, saying he relied on arguments that judges rejected in an appeal from his co-defendant in their 2006 trial on bribery and corruption charges.
Siegelman argued that the district court should have considered whether then-U.S. Attorney Leura Canary, who recused herself from Siegelman's investigation in 2002, had honored the recusal. Former HealthSouth CEO
Richard Scrushy made the same arguments in his motion for a new trial, citing emails from a whistleblowers in which Canary suggested a gag order be placed on Siegelman during the trial; forwarded an email on its coverage and approved a staffing decision.
The three-judge panel rejected Scrushy's argument in 2013, writing "there is no evidence that Canary's emails influenced any decisions made by the U.S. Attorney's office in prosecuting Scrushy." In the former governor's case, the court wrote that it had to follow its decision on Scrushy.
"Regardless of whether Canary possessed a stronger conflict of interest with respect to Siegelman, our determination in Scrushy that there was no evidence that Canary influenced the prosecution team , , , binds Siegelman on this appeal," the opinion said.
The three-judge panel also rejected Siegelman's arguments that his sentence had been miscalculated, saying the district court made no error in sentencing him to 78 months in prison.

News & Notes

1.  Follow up on the "intactivist" post from yesterday.  The lawyer decided to voluntarily dismiss the lawsuit.  From the Sun-Sentinel:

A federal lawsuit concerning a circumcision fight between two South Florida parents suddenly ended Wednesday when the attorney for the 4 1/2-year-old boy and his still-jailed mom decided the case appeared hopeless.
Thomas Hunker, who represents mother Heather Hironimus, notified U.S. District Judge Kenneth Marra that the month-old case has been voluntarily dismissed, and the notice prevents the case from ever being filed again in the court.
In a message posted on a Facebook page dedicated to the boy and his mom and directed at circumcision opponents, Hunker wrote they decided to quit because, "Unfortunately, Judge Marra was not only not sympathetic, he seemed quite hostile toward our position."
Hunker added that proceeding with the federal lawsuit would surely result in "an unfavorable order which could potentially hurt the cause and future efforts to establish a child's right to object to circumcision. I hope you understand and agree that under the circumstances, this was our only available option."
Finally, the attorney said the focus must be to "conserve resources to help Heather get out of jail and preserve her custody rights. That is my mission now."

2.  District Judges like asking other district judges for help.  From the NY Times:

 Federal district judges are often described as the quintessential deciders, whether from the bench or in written opinions. But what happens when a difficult question arises, the parties are in sharp disagreement, and the answer is not obvious?

Turns out they often rely on a rarely discussed resource: the jurist-to-jurist lifeline.

Interviews with more than a dozen judges in Manhattan’s Federal District Court show that almost all have telephoned colleagues when they were puzzled by legal questions or other issues, or have been on the receiving end of the game-show-like call for help.

“I can tell you that everyone calls colleagues for advice, particularly when we get gnarly jury notes,” said Chief Judge Loretta A. Preska, a member of the bench for more than two decades.

The practice is longstanding: Judge Pierre N. Leval, a district judge for 16 years before he was elevated to the federal appeals court in 1993, said that shortly after he became a trial judge, he asked a colleague, “What do you do when you’re stumped?”

The colleague scribbled four digits on a scrap of paper and handed it to him — it was the phone extension for Judge Edward Weinfeld, a legal legend on the court.

“Put it on your desk in the robing room and call him when you’re stuck. We all do it,” Judge Leval remembers his colleague saying.

In a recent trial in Manhattan, Judge Katherine B. Forrest ruled against the government on the admissibility of a particular document, but after a break, she said she had changed her view.

“I spoke to three colleagues — judges here,” she explained.

The defense lawyer objected, but Judge Forrest indicated that it was important that she get it right, and drawing on the expertise and experience of fellow federal judges was sometimes useful “when one is pressed for time in dealing with these kinds of issues.”

“Indeed, a lot of us call each other,” she said. “People call me a lot, including more senior judges.”

Shocker -- her colleagues said to rule for the government!  Oy!

3.  Judge Altonaga did not need to call her colleagues on this one where the government isn't complying with its discovery obligations in the civil terrorism case.  From the AP:

A federal judge sternly blamed the U.S. government Tuesday for lengthy delays in a lawsuit filed by a Pakistani-American man accusing the U.S. of malicious prosecution in a terror financing case.
U.S. District Judge Cecilia M. Altonaga agreed with Irfan Khan's lawyer that the Justice Department's tactics have caused months of unnecessary delays. Altonaga said much FBI evidence released about its investigation into Khan's alleged ties to the Pakistani Taliban is heavily redacted and useless.
"It's virtually like providing nothing," Altonaga said at a hearing. "It's sort of like shooting in the dark."
...Altonaga decided Tuesday to suspend various deadlines until the classified material is sorted out, likely scrapping the current October trial date as well.
"This is a very old case, gentlemen. I fault the government," she said. "You let me know when you're good and ready."

Intactivists!

Ah, Florida (via the Sun-Sentinel):

A federal judge will get 10 days advance notice before a 4 1/2-year-old boy at the center of a circumcision battle is set to have the procedure, the father's attorney promised Monday.
U.S. District Judge Kenneth Marra — hearing an emergency request from an attorney for the boy and his now-jailed mom, Heather Hironimus, to block the surgery already cleared by two state courts — had inquired about the child's whereabouts and the status of the circumcision.
"The child is healthy and well," said Ira Marcus, attorney for father, Dennis Nebus. He told the court the boy is staying with his dad in a "safe and secure" location, has not yet been circumcised, and would not be operated on before telling Marra first.

"Mr. Nebus is entitled to some finality," Marcus said, arguing the boy's parents' legal fight has gone on long enough. "And you know what? The child is entitled to some finality."
But Thomas Hunker, hired by Hironimus to represent the child, urged Judge Marra to step in and protect the boy from "physical harm," brain damage or worse from an elective procedure that is not medically necessary for him and violates his Constitutional rights.
"This is a potentially life and death situation," Hunker said, contending that the child doesn't respond well to general anesthesia and is prone to scarring that could further harm his genitals if he survives. He further argued the procedure to remove the foreskin from the boy's penis is not "reversible" and violates his right to bodily "integrity."
Marra concluded a 75-minute hearing without ruling on the bid for a temporary restraining order against the circumcision — or Nebus' motion to throw the case out of federal court.
Several times, Marra peppered Hunker with questions about why he should hear a case that had already been decided in the father's favor by state circuit and appellate courts. "So you want me to take a fresh look at what was already done by the state court?" Marra asked.
***
On Friday, the attorney filed for the restraining order until the resolution of a federal lawsuit that was filed on the boy's behalf on April 13. The lawsuit states the boy's rights were violated because he hasn't had a psychological examination or an independent guardian to speak on his behalf in court as the mother requested, along with other claims.
The lawsuit lists as defendants his father, Judge Gillen, and Palm Beach County Sheriff Ric Bradshaw. Attorneys for Gillen and Bradshaw urged Marra to remove them from the case.
Meanwhile, Hunker also filed in state court Friday an emergency motion on behalf of Hironimus to freeze all state judicial orders and court proceedings in the long-running custody battle while the matter is pending in federal court.
In March, Gillen ruled Hironimus had committed a "direct, contemptuous violation" of court orders by continuing work with circumcision opposition groups — called "intactivists" — that have "plastered" the child's photos and name "all over the Internet."
During Monday's hearing, a small group of the mother's supporters stood outside the courthouse in West Palm Beach.
"I've been an advocate for all human beings to have bodily autonomy," said Rebecca Boni, a mother of two young children from Boca Raton. "To me it's so obvious it blows my mind the [state] judge decided to side with the father."