#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:

SCOTUS to hear sports gambling case

The Supreme Court is hearing the sports gambling case. It's a fascinating battle. Here's the into from SCOTUSblog's preview:

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case next week, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

New Jersey didn’t take advantage of that exception at the time, but nearly two decades later the state appeared to have second thoughts. In 2010, the New Jersey legislature held hearings to consider the possibility of sports betting, which would benefit the state’s struggling racetracks and casinos. In 2011, New Jersey residents overwhelmingly voted to amend the state’s constitution to give the legislature the power to legalize sports betting, which the legislature did in 2012. The National Collegiate Athletic Association and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – quickly went to federal court to challenge the 2012 law, arguing that it violated PASPA.

The state did not dispute that the 2012 law conflicted with PASPA. Instead, it countered that PASPA violates the 10th Amendment, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states to enforce federal law. But the lower courts rejected that argument, with the U.S. Court of Appeals for the 3rd Circuit ruling that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied review of that decision.

In 2014, the New Jersey legislature returned to the drawing board. It passed a new law that did not affirmatively legalize sports betting, but instead repealed existing prohibitions on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and professional sports leagues again went to federal court, where the lower courts once again ruled for the leagues. This time, the full 3rd Circuit ruled that, even though New Jersey had “artfully couched” the 2014 law as simply a “repealer,” the statute nonetheless authorized sports betting at casinos and racetracks in the state. This time the Supreme Court agreed to weigh in, granting two petitions for review by New Jersey Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association, a group of horse-owners and trainers that also owns a racetrack in New Jersey, which the group believes can only be saved from financial ruin by money from sports betting.

In the Supreme Court, Christie and the NJTHA portray PASPA as an attempt to to take over the legislature’s job that is “dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties.” Unlike the 2012 law, they emphasize, the 2014 law does not affirmatively authorize sports betting, but instead just repeals the existing bars on sports betting at casinos and racetracks, without giving the state any role to play in the sports betting that will follow. Indeed, they point out, during the litigation challenging the 2012 law, the federal government itself told the 3rd Circuit that New Jersey was “free to repeal those prohibitions in whole or in part.” And if the 10th Amendment bars the federal government from requiring states to regulate, they contend, it must also be true that the federal government cannot require states to keep on their books laws that they have opted to repeal – which amounts to essentially the same thing as mandatory regulation.