End of day

The voices of the day murmur low and sink to rest.   Also decided today:

http://media.ca8.uscourts.gov/opndir/18/09/164532P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172401P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172413P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172424P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172995P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/173202P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/186007P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/18-55911.pdf

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/17-55165.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-71380.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-15338.pdf

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/15-15143.pdf

https://www.ca10.uscourts.gov/opinions/17/17-3206.pdf

In other matters, diss continues apace, slings and arrows survived.  Onward.

-CB
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Seventh Circuit: Supreme Auto Transport, LLC v. Arcelor Mittal USA, Inc.

Antitrust suit against producer of raw metal cannot relate back its revised claim, making it untimely; the shift from industrial plaintiffs to the end users of the products gave the defendants insufficient notice to preserve documents and prepare for trial.

State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0
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Sixth Circuit: Neil Morgan v. Fairfield Cty., Ohio

Denial of qualified immunity for municipality policy authorizing police officers to surround a house, standing 5-7 feet from it before knocking on door to discuss a possible violation of the law, as the systematic invasion of the curtilage wasn't considered.  Immunity upheld for individual officers upheld, given evolving caselaw.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
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Fifth Circuit: Consumer Financial Protection v. Source for Public Data

Agency administrative subpoena that does not identify the activity under investigation or the relevant provision of law does not allow for judicial review of the reasonableness of the request, making it statutorily infirm.

http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
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Fifth Circuit: David Hager v. Todd G. Rowan

Discharged employee retains ERISA standing to challenge COBRA notification.

Since the employee was no longer eligible for the plan, medical costs otherwise covered by the plan are not an appropriate remedy; as the remedy must be in equity, the medical costs are similarly an inappropriate award; the proper remedy is a penalty based on the seriousness o the violation, and it is entirely possible that the amount of the penalty is equal to the medical costs incurred.

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Third Circuit: Gordon Tima v. Attorney General United States

Statute that allows discretionary waiver of certain bad acts that would otherwise result in deportation by its terms only refers to fraud affecting admissibility, so a conviction for making false statements during an investigation of the admissibility fraud is not subject to discretionary waiver.

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Third Circuit: Mona Estrada v. Johnson & Johnson

A person who purchases a product later found to be unsafe but who suffers no harm from the use of the product and who did not forgo purchasing a cheaper version of the product does not suffer sufficient injury for Article III standing, as they have received the benefit of their bargain.

Dissent: Safety of the product is an element of the bargain.

http://www2.ca3.uscourts.gov/opinarch/172980p.pdf




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First Circuit: Rivera v. Sessions

Procedural error in immigration administrative appeal seeking discretionary relief cannot present a cognizable constitutional question for purposes of Article III review, as there is no cognizable, constitutionally guaranteed liberty interest.

http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
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First Circuit: US v. Freitas

No prejudice from admission of co-conspirator hearsay, given overwhelming evidence of guilt.

Challenges to instructions either waived for insufficient development or contradicted by record.

Challenge to sufficiency of the evidence waived,, as appeal did not state or argue the standard of review.

No prejudice from plain error in prosecution's closing that went beyond the facts established at trial.

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First Circuit: Doe v. Harvard Pilgrim Health Care

The administrative record for the purpose of judicial review properly includes documentary evidence from the post-filing review process, where both parties consent to the addition of the record in the post-filing process.

ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.

http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
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