Third Circuit: Joseph Brown v. Sage

When determining whether a prisoner's petition to proceed as a poor person is barred under statute due to having already filed three complaints that did not state a valid claim, the procedural law of the present forum controls, not the law of the forum in which the previous claims were filed. 

The number of previously filed complaints is determined by counting all claims resolved before the filing date of the present action.

Concur/dissent - the discretionary power of dismissal in the PLSRA is a more efficient mechanism, and the analysis mandated here seems to foreclose that flexibility.

http://www2.ca3.uscourts.gov/opinarch/171222p.pdf
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Second Circuit: United States v. Pereira-Gomez

State Robbery statute is a valid predicate crime of violence, as even the passive examples raised here implied the threatened use of force.  Where the underlying offense is a crime of violence, the attempt is also a crime of violence.

http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/doc/17-952_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/hilite/
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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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End of Day

Should have been able to get through all of these.  Citius, altius, etc.  Brain-cloud, perhaps.

 http://media.ca8.uscourts.gov/opndir/18/09/173242P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/163891P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/172012P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/17-35355.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/16-35431.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/05/13-56061.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201714677.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201315258.pdf

-CB



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Seventh Circuit: USA v. Daniel Stewart

No plain error in prolongation of traffic stop, given the minimal length of traffic stop.  Sufficient evidence for money laundering, given illicit source of funds.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0
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Sixth Circuit: Brittany Harris v. Kimberly Klare

Denial of qualified immunity as a matter of law for officer's search of minor during traffic stop, as there is a question of whether the officer knew that there were minimal grounds for suspicion and that a dog search had turned up nothing; denial of qualified immunity as a matter of law for consensual search, as minor plaintiff was hancuffed, surrounded by police, had been stopped for an hour, and the search was apparently a precondition to using the restroom.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0198p-06.pdf
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Third Circuit: Damien Preston v. Superintendent Graterford SCI

Although counsel in the initial state collateral challenge was ineffective, excusing the waiver of the claim due to its omission, the underlying claim of ineffective assistance at trial due to the Confrontation Clause violation did not prejudice the petitioner, given the cumulative evidence of guilt.

http://www2.ca3.uscourts.gov/opinarch/163095p.pdf

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Third Circuit: Township of Bordentown v. FERC

Issuance of a permit conditioned on obtaining of second state permit did not offend the Act, as the conditional permit did not allow any discharges into the waters of the United States.

As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.

Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.

Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.

etc, etc. ...

Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.

http://www2.ca3.uscourts.gov/opinarch/171047p.pdf
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Third Circuit: Carol Vorchheimer v. Philadelphian Owners Association

To state a claim for denial of necessary housing accommodation, plaintiff must establish the necessity of the accommodation beyond alternate solutions proposed by the landlord.  Joint agency statement indicating that the tenant has a right to their suggested modification has little power to persuade, as it does not explicitly purport to interpret the statute.

http://www2.ca3.uscourts.gov/opinarch/171738p.pdf
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Third Circuit: In re: Tribune Media Company

Bankruptcy Court had statutory jurisdiction to resolve discrimination claims against debtor as a matter of law, as plaintiff consented to jurisdiction, and the statutory carve-out that would usually move personal-injury tort claims to the District Court is not a jurisdictional provision.

Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns.  Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.

As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.

Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.

Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.

Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.

 http://www2.ca3.uscourts.gov/opinarch/172449p.pdf



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Third Circuit: William Lee v. Sixth Mt Zion Baptist Church

Claims of minister whose contract with his church was terminated for cause due to lack of spiritual leadership do not present an issue for trial, as the question would impermissibly entangle the court in religious matters, and the church has a freestanding First Amendment right to select its ministers.

http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
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