NY Times piece on Alex Acosta

Labor nominee Alex Acosta's hearing has been pushed off a few days to allow the chair of the committee to attend a Trump rally.  Acosta will easily be confirmed when the hearing occurs. In the meantime, there have been a bunch of articles about him. Strangely, the Herald and NY Times have done a number of hit pieces on him.  Putting aside that ease with which Acosta will get confirmed, I think it would be a huge mistake for the Democrats to object to his nomination.  He is a fair, really smart, and pragmatic guy, who also has a big heart.  He was a very successful U.S. Attorney, who was extremely involved with the cases (from top to bottom) in the office (unlike many other top prosecutors who focus more on policy and community projects). Here's the nice part from the NY Times piece:

Others, including an immigration advocate and several professors at Florida International University’s law school, say Mr. Acosta is a fair leader who did not let his conservative ideals affect his decisions for the school and who worked hard to recruit, retain and support a diverse student group.
Erik Camayd-Freixas, a Hispanic studies professor at Florida International University, met Mr. Acosta several months before he was tapped to join the university’s law school, in 2009. Mr. Acosta was then the United States attorney for the Southern District of Florida, where his office prosecuted the lobbyist Jack Abramoff, the terrorism suspect Jose Padilla and founders of the Cali drug cartel.
Mr. Camayd-Freixas and several others called on the prosecutor’s office to investigate an immigration raid in Homestead, Fla., where, they claimed, United States Immigration and Customs Enforcement agents had unfairly roughed people up.
“I was very impressed with the way he handled it and his fairness in presenting essentially abuses by Immigration and Customs Enforcement to the Department of Justice for investigation,” Mr. Camayd-Freixas said of Mr. Acosta. “He put together a complaint, and he elevated it.”

Check out this powerful dissent by Judge Rosenbaum

The case is Jameka Evans v. Georgia Regional Hospital. Judge Rosenbaum's powerful dissent start's out this way:

A woman should be a “woman.” She should wear dresses, be subservient to men, and be sexually attracted to only men. If she doesn’t conform to this view of what a woman should be, an employer has every right to fire her. That was the law in 1963—before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now. And the rule that Title VII precludes discrimination on the basis of every stereotype of what a woman supposedly should be—including each of those stated above—has existed since the Supreme Court issued Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)), 28 years ago. Yet even today the panel ignores this clear mandate. To justify its position, the panel invokes 38-year-old precedent—issued ten years before Price Waterhouse necessarily abrogated it—and calls it binding precedent that ties our hands. I respectfully disagree. 

And from the conclusion:

Presidential-Medal-of-Freedom recipient Marlo Thomas has expressed the
sentiment that “[i]n this land, every girl grows to be her own woman.”17 Title VII
codifies the promise that when she does, she will not be discriminated against on
the job, regardless of whether she conforms to what her employer thinks a woman
should be. Because the panel does not read Title VII to fulfill that promise, I
respectfully dissent.

The 2-1 decision is authored by District Judge Jose Martinez and joined by William Pryor (who also writes a concurring opinion).  Slate covers the opinion here:

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11th Circuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII. Although that statute does not explicitly outlaw anti-LGBTQ discrimination, it does bar “sex discrimination,” including sex stereotyping. Evans argued that this prohibition bars employers from discriminating on the basis of gender presentation and sexual orientation.

Salomon Melgen trial starts

The AP had a nice story about opening statements:

A prominent Florida eye doctor tied to a U.S. senator's alleged corruption built much of his fortune by defrauding Medicare and instilling false hopes in some patients, a federal prosecutor told a jury Thursday.
Salomon Melgen stole millions from Medicare between 2008 and 2013 by falsely diagnosing patients and by performing unnecessary tests and treatments, Assistant U.S. Attorney Carolyn Bell said during her opening statement for Melgen's fraud trial. Melgen and Democratic New Jersey Sen. Bob Menendez face a separate trial in the fall in an alleged bribery case.
"This is a case about a doctor who lied to Medicare for money," Bell told the 12-member panel. He lied about his patients' diagnoses, she said. He lied about the tests he ran, she said. He lied about their prognoses, she said. All of it, she said, aimed at making Melgen rich, as many of these falsely diagnosed and treated patients could net him $72,000 each annually.
Medicare paid Melgen, 62, because it "relied on the integrity of the doctor," she said, but the government's investigation found that in many cases he "lied," using that word or a variation about two dozen times during her address.
Matthew Menchel, Melgin's attorney, countered during his opening that the government's case is built upon viewing Melgen's actions as criminal when they were actually aggressive medicine, legitimate differences of opinions between doctors and honest mistakes.***
"They turned a blind eye to evidence they didn't like," he said.
Many charges relate to patients Melgen said had age-related macular degeneration, one of the leading causes of severe vision loss in people 65 and older. Most ARMD patients have the "dry" variety, which is caused by retinal cells breaking down and cannot be treated. Fewer have the "wet" variety, which involves bleeding beneath the retina. It can be treated by injections.
***
Menchel said other doctors who have looked at Melgen's diagnoses and treatments don't always agree with him, but understand what he was attempting. Other eye doctors sent Melgen their hardest, most desperate patients because they knew of his "cutting edge" treatments that sometimes worked, Menchel said. He said a totally blind person who regains even a flicker of peripheral vision would feel the treatment is worth it.
"Many of Dr. Melgen's patients loved him, not just liked him, because he helped them," Menchel said.
Menchel said Melgen never claimed to test or treat prosthetic eyes, saying those billings were mistakes made by his employees. When those mistakes were pointed out to him, Melgen reimbursed Medicare, Menchel said.

Meantime, it was the ABA White Collar Conference at the Fountainbleu this week.  About 1000 lawyers running around in suits while the beautiful people there were wondering who these aliens were invading their pool party.  Lots of recent former prosecutors, including Willy Ferrer and Matt Axelrod.  I previously covered Ferrer's move to H&K.  Here's the Axelrod story from the NY Times about his departure:

His boss was fired, and in effect, so was he. Now Matthew S. Axelrod is moving on.

The former top deputy to the acting attorney general, Sally Q. Yates, who was dismissed by President Trump in January after refusing to enforce his executive order barring travelers from seven predominantly Muslim countries, Mr. Axelrod is joining a major global law firm, Linklaters.

"Although Otis Redding may have enjoyed wasting time by watching ships roll into the Dock of the Bay,* if he were sitting on Cumberland Island’s Brick-Kiln Dock, he truly would be wasting his time, waiting in vain for ships that would never come."

That was how Judge Rosenbaum started this opinion with the following footnote:

1 STEVE CROPPER & OTIS REDDING, (Sittin’ On) The Dock of the Bay, on THE DOCK OF THE BAY (Volt/Atco 1968). Redding tragically died in a plane crash in December 1967, just two days after he finished recording “(Sittin’ On) The Dock of the Bay,” so the song was released posthumously on January 8, 1968. Marc Myers, Then I Watch ‘Em Roll Away Again, WALL ST. J. (Jan. 3, 2013 6:20 PM), http://www.wsj.com/articles/SB10001424127887323320404578213 633398825300. It later won the 1968 Grammy Awards for the Best Rhythm & Blues Male Vocal Performance and the Best Rhythm & Blues Song. RockPopInfo Song Facts: (Sittin’ On) The Dock of the Bay, ROCKPOPINFO, http://www.rockpopinfo.com/songs/sittin-on-the-dock-ofthe-bay--2/song-facts (last visited Aug. 2, 2016).

If the site was last visited on August 2, 2016, it seems that the opinion has been waiting to be published for a while.  What am I missing appellate clerks?

Hat Tip: Stephen Ludovici at Jones Walker

Baseball case moves to defense case

The government has rested after 6 weeks.  Now it's to the defense.  From the AP:

Two Texas Rangers executives testified Tuesday they never discussed bringing Cuban ballplayers to the U.S. illegally with a Florida sports agent on trial for allegedly smuggling players from the communist-governed island.
Rangers General Manager Jon Daniels and assistant GM Mike Daly told a jury they never knew that outfielder Leonys Martin planned to cross the U.S. border in Texas illegally and never talked about it with Martin's agent, Bartolo Hernandez.
"Absolutely not," Daly said under questioning from Hernandez attorney Daniel Rashbaum.

Supreme Court affirms 11th Circuit in Beckles

This was the vagueness challenge to the career offender guideline. Both the defendant and the government agreed that the guideline provision was vague and that the 11th should be reversed.  The Court had to appoint a lawyer to argue the contrary position, and ruled unanimously for that position:  Justice Thomas starts his majority opinion this way:

At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG).   This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness.  Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.

Former Dolphin Will Allen going to prison for 6 years

From the AP:

Ex-NFL cornerback Will Allen and his business partner have been sentenced to prison for running a Ponzi scheme that took in more than $35 million.
A federal judge in Boston Wednesday sentenced Allen, of Davie, Florida, and Susan Daub, of Coral Springs, Florida, each to six years in prison and three years of supervised release. They also were ordered to pay restitution totaling $17 million.
Allen and Daub collected millions from investors between 2012 and 2015, saying it would be used for high-interest loans to professional athletes. Their Massachusetts business made some loans but they also diverted money to themselves and other ventures.

 This isn't his first run-in with the law (from Wiki):

Allen was arrested February 20, 2010 and charged with driving under the influence when he was stopped in a late-model Ferrari at 3:30 a.m. at the corner of Fifth Street and Alton Road, said Miami Beach police spokesman Detective Juan Sanchez.^[2]
According to the arrest report, Allen approached a police road-block and instead of following the detour, he kept driving toward a police car, stopping only two feet from it.
Will Allen was placed on injured reserve September 5, 2010 because of a knee, just one week before season opener ending his 2010 season.

In other news, we still don't know whether there is going to be a JNC here in Florida.  There's been no clarity on who will permanently fill Ferrer's slot as U.S. Attorney or how it will be done.  Ben Greenberg is the acting U.S. Attorney. 

"No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream."

That was Judge Milton Hirsch finding that Mayor Gimenez violated the 10th Amendment by ordering people slated for deportation to be jailed (because the city was being threatened by President Trump). As always, Judge Hirsch writes a beautiful order.

The conclusion:

The “people” to whom the Tenth Amendment refers include the native-born as well as the naturalized citizen; the native English speaker as well as the speaker for whom English is a second, or third, language; the scion of old Yankee stock as well as the newcomer who took the oath of citizenship yesterday. Miami is not, and has never been, a sanctuary city. But America is, and has always been, a sanctuary country. As I have written elsewhere, “America, perhaps more than any other nation, was made great not by its leaders but by its people: by the refugees who were called to begin life anew; by the pioneers who were called to build a nation; by ‘the homeless, tempest-tossed’ who were called by the light that shone from the ‘lamp beside the golden door’.” State v. Robaina, 20 Fla. L. Weekly Supp. 406a (Fla. 11th Cir. Ct. 2013) (quoting Emma Lazarus, “The New Colossus”). Of course we must protect our country from the problems associated with unregulated immigration. We must protect our country from a great many things; but from nothing so much as from the loss of our historic rights and liberties.