"Finally, there is good ol’ common sense."

"Finally, there is good ol’ common sense." That's the 11th Circuit's newest judge, Kevin Newsom, who is quickly making a name for himself as a folksy, fun writer. From the intro to this opinion:

It is hornbook law that rights of all kinds—even constitutional ones—can be waived. For instance, a criminal defendant might for one reason or another elect to waive his Fourth Amendment freedom from unreasonable searches, his Fifth Amendment privilege against self-incrimination, or his Sixth Amendment right to the assistance of counsel. In the same way, a civil litigant can waive his Seventh Amendment right to a jury trial or his right, rooted in the Fourteenth Amendment, to be free from overbroad assertions of personal jurisdiction. So too, a sovereign State may choose to waive its Eleventh Amendment immunity from suit.
This case also concerns waiver—but not of some fundamental constitutional guarantee. Rather, this case is about … the Employee Retirement Income Security Act of 1974, affectionately (and hereinafter) known as “ERISA.” In particular, this interlocutory appeal requires us to determine whether a defendant is capable of expressly waiving the six-year statute of repose contained in ERISA Section 413(1), 29 U.S.C. § 1113(1)—or whether instead, the protection provided by Section 1113(1) is so essential, so fundamental, that it (seemingly almost alone among personal rights) is inherently indefeasible and unwaivable.
We won’t bury the lede. In response to the district court’s certified question, we answer yes—Section 1113(1)’s statute of repose is subject to express waiver.

Complete list of District Court Applicants

In case you missed Friday's post, here is a complete list of the 45 applicants for the 5 open District Court seats in the Southern District of Florida (which will all be in the "Northern Division" -- i.e., Broward, Palm Beach, and Ft. Pierce):

1.	Altman, Roy
2.	Angueira, Roberto
3.	Arzola, Antonio
4.	Blumstein, Mark
5.	Bonner, Robert
6.	Brown, Richard
7.	Butchko, Beatrice
8.	Caruso, Michael
9.	Colbath, Jeffrey
10.	Cooperstein, Theodore
11.	Cortinas, Angel
12.	Davis, Michael
13.	Day, Timothy
14.	Greenberg, Benjamin
15.	Haimes, David
16.	Harwin, Michael
17.	Haury, William
18.	Hemming, Norman
19.	Kastrenakes, John
20.	Keever-Agrama, Dina
21.	Klingensmith, Mark
22.	Koenig, Timothy
23.	Lopez, Peter
24.	Manalich, Ramiro
25.	Marzen, Chad
26.	McCawley, Sigrid
27.	Meek, Leslie
28.	Morris, Tinesha
29.	Muniz, Michael
30.	Prescott, Orlando
31.	Rebull, Thomas
32.	Ruiz, Rodolfo
33.	Sanchez-Llorens, Migna
34.	Sasser, Meenu
35.	Sherwin, Michael
36.	Singhal, Raag
37.	Smith, Rodney
38.	Thornton, John
39.	Trawick, Daryl
40.	Villafana, Ann Maria
41.	Visconti, Melissa
42.	Ward, Kimberly 43. Roby, Willliam
44.	Williams, Dwayne
45	Wood, Marina Garcia

Status of U.S. Attorney, Magistrate Judge, and U.S. District Judge (UPDATED)

Lots of tips are coming in regarding the open positions in the Southern District of Florida.  From the tips I have received, here is what we know:

-- There was a new round of interviews in D.C. for U.S. Attorney.  It appears that the 3 new finalists are:

Jose ("Pepe") Diaz
Ariana Fajardo-Orshan
Lilly-Ann Sanchez

-- We have heard that the following have applied for the open Magistrate Judge seat in Miami.  This is not a complete list.  If you know of others, please send me a completely confidential tip.  The list of known applicants:

Jackie Arango
Barry Blum
Penny Birch
Celeste Higgins
Lynn Kirkpatrick
Lauren Louis
Ani Martinez
Stephanie Moon
Gera Peoples
Corey Steinberg
Erica Zaron

-- UPDATED— here is the complete list for the 5 open District Court seats:

1.
Altman, Roy



2.
Angueira, Roberto



3.
Arzola, Antonio



4.
Blumstein, Mark



5.
Bonner, Robert



6.
Brown, Richard



7.
Butchko, Beatrice



8.
Caruso, Michael



9.
Colbath, Jeffrey



10.
Cooperstein, Theodore



11.
Cortinas, Angel



12.
Davis, Michael



13.
Day, Timothy



14.
Greenberg, Benjamin



15.
Haimes, David



16.
Harwin, Michael



17.
Haury, William



18.
Hemming, Norman



19.
Kastrenakes, John



20.
Keever-Agrama, Dina



21.
Klingensmith, Mark



22.
Koenig, Timothy



23.
Lopez, Peter



24.
Manalich, Ramiro



25.
Marzen, Chad



26.
McCawley, Sigred



27.
Meek, Leslie



28.
Morris, Tinesha



29.
Muniz, Michael



30.
Prescott, Orlando


31.
Rebull, Thomas


32.
Ruiz, Rodolfo



33.
Sanchez-Llorens, Migna



34.
Sasser, Meenu



35.
Sherwin, Michael



36.
Singhal, Raag



37.
Smith, Rodney



38.
Thornton, John



39.
Trawick, Daryl



40.
Villafana, Ann Maria



41.
Visconti, Melissa



42.
Ward, Kimberly


43.
Roby, Willliam


44.
Williams, Dwayne



45
Wood, Marina Garcia

Who in the world will be U.S. Attorney in the Southern District of Florida?

Who in the world will be U.S. Attorney in the Southern District of Florida?

Initially, Jose Felix Diaz (“Pepe”) was one of the front runners. But the selection process has been all over the place and it appeared that he was out of the running in favor of Jon Sale. Then recently we heard it was going to be Judge Fajardo Orshan. Now, Marc Caputo, who has been all over this story, is reporting that Diaz, of Apprentice fame, is again a front-runner.

Meantime, applications for the 5 open federal judicial seats are due tomorrow. If you have tips on who is applying, please email me. All tips are anonymous of course.

Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit is the new chair of the Executive Committee.

Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit is the new chair of the Executive Committee.  Our former chief judge, Federico Moreno, sits on that Committee.  It's his 4th year doing so.  He sits along with the Circuit Chiefs of the DC, 2nd, 5th, and 9th, plus two district judges.

SDFLA Honors

Two nice honors for SDFLA peeps:

1.  Clerk of Court Steve Larimore has been given the Director's Award, which recognizes outstanding performance in the federal courts nationwide:

The recipients were nominated by colleagues based on career achievements and contributions to specific projects that have benefited their home courts and the federal Judiciary as a whole.
“The Director’s Awards represent the very best achievements of the Judiciary’s exceptionally dedicated work force,” said James C. Duff, Director of the Administrative Office of the U.S. Courts. “They recognize the recipients’ outstanding leadership, innovation and efficiency, and their commitment to delivering the best possible service to the public.”
The awards were granted in five areas: “Outstanding Leadership,” “Excellence in Court Administration,” “Excellence in Court Technology,” “Excellence in Court Operations/Mission Requirements,” and “Director’s Award for Extraordinary Actions.”
***
“[Larimore] has demonstrated outstanding leadership skills that have allowed him to effectively govern one of the nation’s most demanding trial courts,” Chief District Judge K. Michael Moore wrote, adding that Larimore’s achievements “have had an impact well beyond the district.” 

 2.  Judge Marcia Cooke is going to receive the Miami-Dade County Trial Lawyers Manny Crespo Award:

Congrats to both.

How will Justice Gorsuch be on criminal justice issues?

How will Justice Gorsuch be on criminal justice issues?

He won't be as good as Justice Scalia was, but he won't be as bad as Alito is. 

Here are some hints from yesterday's argument in Class as well as the first few arguments (via WSJ):

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.
Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.
Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.
According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.”
Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.
A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.
A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.
Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked.
“No, your honor,” Mr. Feigin said.
Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.
Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment—but not that those actions necessarily are illegal.
“You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.
Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

Peter Fay Inn of Court discussion

For those of you who are interested, I will be presenting at the Peter Fay Inn of Court tomorrow evening (Wednesday) on "Privacy, the Fourth Amendment, and the Supreme Court in the Cell Phone Era."  It's a fascinating area of the law and the Supreme Court is going to hear the cell-site data case this Term, one of the biggest 4th Amendment cases in quite some time.  The talk is at 6pm at La Loggia. 

Please RSVP via email to chayes@stu.edu or phone (305) 623-2324.