More on Kozinski (UPDATED -- KOZINSKI RETIRES)

UPDATE: Judge Kozinski has decided to retire, effective immediately.



ORIGINAL POST: The Washington Post had another front page article this weekend, detailing another round of Judge Kozinski allegations.  It’s not pretty.  Above the Law explains:

And that’s really been the nugget at the core of any defense of Kozinski. He was “only” joking, or that he should get a pass or a mere slap on the wrist because his behavior didn’t cross the line into the physical. But in the new WaPo article more women are coming forward with allegations that seem to cross that line and are deeply unsettling.

Take the story of Christine O.C. Miller, who is now a retired U.S. Court of Federal Claims judge. She says that in 1986 she attended a professional event with Kozinski and shared a car ride home at the end of the evening. During that ride Miller alleges Kozinski asked her to stop at a hotel and have sex. When she rejected his advance, she alleges things turned physical:

“I told him, no, I wasn’t interested and didn’t want to be involved in anything like that,” she said. Kozinski, she said, persisted.

“He said if you won’t sleep with me, I want to touch you, and then he reached over, and — this was the most antiseptic — he grabbed each of my breasts and squeezed them,” Miller said. She said she stared straight ahead, and he soon dropped her off at her home.

So now what? The Second Circuit is investigating. He’s hired Susan Estrich at Quinn Emanuel. Will he step down before the Second Circuit concludes its investigation or will he dig in?

Your Friday moment of Zen

Your Friday moment of Zen:

If you haven’t watched Trump’s judicial nominee Matthew Petersen testify yesterday, then you need to watch this.

Judging A Book: Cooke Reviews 'Constance Baker Motley'

Judge Marcia Cooke reviewed "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law" for Law360.  Here's the personal and interesting intro:

In the spring of 1955, my mother boarded a train in Sumter, South Carolina. She was traveling to join my father, who had moved to Detroit shortly after I was born. The plan was that she would join him later. They both knew there was little opportunity for economic advancement for African-Americans in South Carolina. They became part of the great migration — Southern African-Americans moving north from the dangerous, segregated South.

She carried me in her arms. I was 9 months old. She packed and carried enough provisions for both of us for the two-day trip. My mother, as a child of the segregated South, knew that the dining car on the train was not available to her. Whatever we would need on the two-day journey was in her luggage. Food. Clothing. Hygiene. Years later she spoke of the kindness of the Pullman porters, the African-American men that worked on the train. One would surreptitiously take my bottle, warm it and return it to my mother. Another would alert her when the small communal bathroom in the “colored” car was just tidied and available so she could take time to clean herself and me of the traveler’s dirt.

Ten years later, a return trip was very different. My family stopped at a West Virginia Howard Johnson’s on a Southern road trip. We walked into the dining room and were promptly seated, our orders were taken and we were served — without incident, thanks to Constance Baker Motley. Constance Baker Motley, who?

As historian Gary L. Ford Jr. states in his recently published biography, "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law":

Many of the people Motley helped had no idea who she was or what she did for them. She operated within the confines of courtrooms where many protesters were either banned or strongly discouraged from attending their trials. She was their unseen and unknown guardian angel.

Ford is an attorney and professor of African studies at Lehman College. His biography of Constance Baker Motley is an interesting read, even for nonscholars. The book is also an excellent reference material. The appendix details Motley’s numerous cases before the U.S. Supreme Court, the various U.S. courts of appeals and the U.S. district courts.

Ford’s book is more than a general biography of the woman who would become the first African-American female United States district judge; it presents in vivid detail how her work altered the legal landscape of the United States systematically, case after case, dismantling the Jim Crow laws in the Southern United States. Most of us know that Thurgood Marshall and the NAACP Legal Defense Fund (“LDF”) filed cases to end public school desegregation, defended individuals arrested at sit-ins, and provided legal support and guidance to the early civil rights movement in this country. Most forget that Marshall left the LDF in 1961 when he was appointed to the United States Court of Appeals for the Second Circuit. The legal enforcement of Brown v. Board of Education, the desegregation of professional schools and a host of other litigation and civil rights enforcement fell to Motley.

Judge Moreno is the deciding vote in 11th Circuit case

Judge Moreno (visiting on the 11th Circuit) cast the deciding vote in this published opinion in which Judge Newson battles Judge Wilson (dissenting). From Newsom:

A brief coda: Having endeavored along the way to meet our dissenting colleague’s specific objections, we must respond briefly to his more sweeping charge that we have “disregard[ed]” or cavalierly “passe[d] by” settled procedural rules in a conscious effort to “move to the merits”—only, he says, to adopt a rule that “undermines long-established principles of bankruptcy law and the Code itself, and runs contrary to the purpose of Chapter 13 bankruptcy.” Dissenting Op. at 29– 30, 47. With the utmost respect, none of that is true. The former intimation—that we’ve somehow bent normal procedures in a
headlong rush to parse the U.S. Bankruptcy Code—seems to us to refute itself.
That’s not how courts should operate, and it’s not how we operate—and, let’s just say, the temptation to cut corners is not particularly strong (which is to say nonexistent) when the reward for doing so is an exhaustive assessment of Chapter 13, Georgia’s “pawn” statute, and those laws’ combined import for the fate of a 2006 Dodge Charger. (If anything, the incentives would seem to run in the other direction, but we digress.) Here as always, we’re just doing our best to call ’em like we see ’em. And needless to say, we find no particular joy in concluding that a pawnbroker now owns the car that Mr. Wilber once drove. For better or worse, that’s simply the result that, on our reading, the law requires.

And Wilson responds:

This should be an easy case. The Bankruptcy Code provides—and the Supreme Court and this Circuit agree—that a confirmed Chapter 13 bankruptcy plan enjoys a preclusive, binding effect. A creditor may only escape treatment under a plan if it objects to plan confirmation and then appeals the overruling of that objection. Title Max admitted to the bankruptcy judge, on the record, that it did not object, and the bankruptcy judge confirmed the plan. Title Max now says that it did object and that it therefore can elude the plan’s terms. But the law required an objection before plan confirmation, not a retroactive recasting of motions as objections. Therefore, Title Max remains bound by the confirmed plan.
The majority disregards these simple facts, choosing instead to move to the merits. In doing so, the majority rewards Title Max—by allowing it to sidestep the preclusive effects of a confirmed bankruptcy plan—for changing litigation positions on appeal. I am troubled that we would incentivize an attorney’s inconsistent representations before the courts of this Circuit, including before the judges of this panel, and I thus cannot join the majority’s opinion. Aside from these concerns, I am skeptical of the majority’s holding that state law may operate to divest a federally-created bankruptcy estate of a piece of property that all parties, and the majority, admit entered that estate pursuant to the Bankruptcy Code. Such a holding undermines long-established principles of bankruptcy law and the Code itself, and runs contrary to the purpose of Chapter 13 bankruptcy.
Therefore, I respectfully dissent.

#MeToo movement hits Judiciary

The #MeToo movement has made its way to the judiciary... Judge Alex Kozinski stands accused.  The Washington Post covers the story here:

A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.

Heidi Bond, who clerked for Kozinski from 2006 to 2007, said the porn was not related to any case. One set of images she remembered was of college-age students at a party where “some people were inexplicably naked while everyone else was clothed.” Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman.

Bond is one of six women — all former clerks or more junior staffers known as externs in the 9th Circuit — who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.

In a statement, Kozinski said: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”

Kozinski provided the statement after The Post called and emailed a spokesman with a detailed list of the allegations this story would include. After the story posted online, the judge told the Los Angeles Times, “I don’t remember ever showing pornographic material to my clerks” and, “If this is all they are able to dredge up after 35 years, I am not too worried.”

Unlike the politicians wrapped up in similar controversy, Kozinski has life-time tenure. It will be interesting to see how this plays out.

11th Circuit addresses dreadlocks in en banc denial

The 11th Circuit denied en banc review in an interesting case involving lots of discussion of dreadlocks.  Judge Jordan wrote a lengthy opinion concurring in the denial of review.  Judge Martin, joined by Judges Rosenbaum and Pryor, dissented.

Judge Martin starts her dissent this way:

Chastity Jones, a black woman, applied for a position at Catastrophe Management Solutions (“CMS”). She got the job. But after she was hired, the human resources manager—who is white—told Ms. Jones the company had to rescind its job offer because she wore her hair in dreadlocks. The manager told Ms. Jones the problem with dreadlocks is “they tend to get messy,” but at the same time recognized that Ms. Jones’s own dreadlocks were not messy. Even so, CMS took away Ms. Jones’s job offer because her hair violated the company’s blanket ban on dreadlocks.
The Equal Employment Opportunity Commission (“EEOC”) filed suit against CMS on behalf of Ms. Jones. The complaint alleged that CMS discriminated against Ms. Jones on the basis of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The complaint alleged that dreadlocks are black hair in its natural, unmanipulated state, and that the natural texture of black hair carries with it a deeply entrenched racial stereotype that sees black people as “unprofessional,” “extreme,” and “not neat.” The complaint also alleged that CMS’s stated reason for banning dreadlocks—“they tend to get messy”—did not apply to Ms. Jones, as the human resources manager acknowledged Ms. Jones’s hair was not messy. Thus, the complaint indicated that CMS’s only reason for refusing to hire Ms. Jones was the false racial stereotype. 

Even with these clear allegations of racial discrimination, the District Court dismissed this action based on the pleadings alone. See Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021 (11th Cir. 2016). This means, of course, that the courthouse doors were closed to Ms. Jones without either she or CMS having any opportunity for factual exploration or development of her claims. On this limited record, then, a panel of this Court affirmed. And now, despite the startling nature of the precedent created by the panel opinion, a majority of this Court has voted not to rehear the case en banc. I dissent from that decision.
The panel held that the complaint failed to state a claim because Title VII prohibits only discrimination based on “immutable traits” and dreadlocks are not “an immutable characteristic of black persons.” Id. at 1021. The panel said our decision in Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc),1 dictates this conclusion. See Catastrophe Mgmt., 852 F.3d at 1028–30. I cannot agree. By resting its decision on Willingham’s mutable/immutable distinction, the panel revives—in fact, expands—a doctrine the Supreme Court invalidated more than twenty-five years ago in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). Even if Willingham’s immutable-trait requirement survived Price Waterhouse, the allegations the EEOC made here on behalf of Ms. Jones are sufficient to satisfy that requirement and state a Title VII disparate treatment claim.

What is the appropriate sentence for Dr. Salomon Melgen?

What is the appropriate sentence for Dr. Salomon Melgen?  That's the question facing Judge Marra, who starts a 3-day (!) sentencing hearing today.  From the AP:

Prosecutors say a prominent Florida eye doctor accused of bribing Democratic Sen. Bob Menendez of New Jersey should get a 30-year sentence for a separate Medicare fraud scheme that they say stole more than $100 million from the federal government.
A three-day sentencing hearing for Dr. Salomon Melgen, 63, is scheduled to begin Tuesday on 67 counts, including health care fraud, submitting false claims and falsifying records in patients’ files. U.S. District Judge Kenneth A. Marra could give Melgen a life sentence, but he has wide discretion. Melgen’s attorneys want less than 10 years.
Assistant U.S. Attorney Roger Stefin argued in court documents that Melgen “was the highest-paid (Medicare) provider in the country for most, if not all, of those years” between 2008 and 2013.
“The crimes committed by the defendant were truly horrific. The defendant not only defrauded the Medicare program of tens of millions of dollars, but he abused his patients — who were elderly, infirm, and often disabled — in the process,” Stefin wrote. “These unnecessary procedures resulted in pain, discomfort, and, in some instances, endophthalmitis, a serious eye infection that can lead to vision loss and blindness.... These ‘treatments’ involved sticking needles in their eyes, burning their retinas with a laser, and injecting dyes into their bloodstream.”
Melgen’s attorneys say prosecutors are exaggerating Medicare’s loss, and say some patients testified the Dominican-born, Harvard-trained doctor improved their sight.
Kirk Ogrosky and Matthew Menchel argue in court documents that the proposed sentence is comparable to what terrorists get, which they say is “irrational on its face.” Because of Melgen’s age and poor health, any lengthy sentence would be equivalent to a life term, they say.
They say a sentence of 30 years or more would result in Melgen being housed in a maximum security prison, which they called “an unnecessary burden on the taxpayers,” given his lack of criminal history. They want him sent to a minimum security camp, which they say would require a sentence of less than 10 years. Prosecutors dispute that, saying the federal Bureau of Prisons would decide his placement regardless of the sentence’s length.

Former Judge Moreno clerk, Asher Perlin, argues before the Supreme Court

Former Judge Moreno clerk, Asher Perlin, argued Rubin v. Islamic Republic of Iran before the Supreme Court today.  Here is the oral argument transcript.  In a very cool moment, Judge Moreno attended the argument to watch his former clerk (he sat in a seat provided by the Chief Justice).  Howard Srebnick, who assisted Perlin in argument prep, was also there.  Here is a picture of Judge Moreno and Mr. Perlin: