Two decades ago, John Green was a regular customer at a Denny’s restaurant in Miami, Florida. He saw manager Asif Jawaid treat one of the employees, Floride Norelus, “as a slave.” On December 28, 2010, the 11th Circuit issued an opinion affirming a $387,738 sanction against Norelus’ attorneys, Karen and Bill Amlong. The 74-page opinion and 24-page dissent, offer an opportunity to see how our courts respond to slavery today. The case is Norelus v. Denny’s, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010).

Norelus is an undocumented immigrant from Haiti. In 1994, her brothers took her to see attorney Debra Valladares. Valladares interviewed Norelus (with translating help from her brothers), Green and others. She recognized that this case required a Title VII specialist, and she referred the case to the Amlongs. Norelus then made a police report of how Jawaid and his roommate raped her repeatedly. The prosecutor took no action. The Amlongs sued.

Karen Amlong attended Norelus’ first deposition in 1995. It lasted six hours. Amlong received a 30-day extension for Norelus to review the transcript. She did this at the court reporter’s office, with her brother (she could not afford either a professional translator or a copy of the transcript). She noted corrections to 4 of the 153 pages of the transcript and signed it.

The Amlongs filed amended complaints naming Jawaid and others as defendants. The new defendants took their own deposition of Norelus in 1996. It lasted for eight days over five weeks. When the Amlongs’ associate reviewed the transcript with Norelus, she identified 868 errors in an errata sheet 63 pages long. Karen Amlong did not file it with the court reporter, but did disclose the errata sheet to opposing counsel. Amlong also had Norelus submit to a polygraph (which she passed) and a mental health examination (finding PTSD). Defense counsel won a continuance of trial and a reopening of the deposition at Norelus’ expense. When Norelus could not pay for the third deposition, the court dismissed her case. The court also slapped the Amlongs with the sanction for continuing this case after submitting the 868 errata.

The majority’s opinion is not quite long enough to cite Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978), where the Supreme Court found a Congressional concern for the vigorous enforcement of civil rights and the role of plaintiffs in achieving its enforcement. Sanctions should be permitted “not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” Id. Whereas Christiansburg evokes a somber tone on the prospect of sanctioning an advocate who undertakes a cause in furtherance of civil rights, the 11th Circuit now projects a gleeful tone over the opportunity to affirm such sanctions. The court rejects Norelus’ “story” as “inconceivable,” and Norelus herself as “emotional,” “erratic” and “an illegal immigrant.” It turns out, and I did not know this before, that there is a numerical limit on how many “innocent misstatements” a party can make before the attorney can be sanctioned. One, two, “maybe even three or four” would be allowed in the 11th Circuit, but “not 868.” The court shows no sensitivity to the communication issues inherent with immigrant slaves, nor to the ordeal of the 2nd through the 9th days of deposition. Since Norelus was the sole witness to her rapes, the loss of her credibility required the Amlongs to immediately dismiss her case to avoid sanctions. The majority opinion is sarcastic (pp. 29, 34, 58). In a part disavowed by the concurrence, it compares the dissent to “arguing after Gettysburg that the warring sides had been mistaken all along about the bombardment of Fort Sumter, that it was actually nothing more than a diplomatic overture.” This is an interesting choice of metaphor. Apparently, at least one federal appellate judge for the South is reliving the Civil War. While some rejoice in today’s setback for civil rights advocacy, I wonder how much further we must go before our whole government firmly renounces slavery.