Ms. L. Case: September 20, 2018 Status Report: 17 Pages…

September 20, 2018 - Leave a Response

Here it is — in full — as a PDF for tomorrow’s 4 PM EDT status hearing in San Diego.

Be excellent to one another.



I Stridently Disagree With The Court, Here — But I Do Respect The Decision. It Is Law. For Now.

September 19, 2018 - Leave a Response

150 I trust the ACLU will file appeals on behalf of the two parents I mentioned repeatedly over the last two weeks. [Family / plaintiffs’ supplemental supporting declaration here, from September 17, 2018.]

Judge Sabraw (a very level headed and able jurist, he) has decided that the government deserves significant deference (using an “abuse of discretion” standard) for these two individual parent / child cases. I might reply that no US citizen parent could ever lawfully be denied the right to keep their kids based on these long past (and clearly minor) matters. . . .

But here is his terse three page order. And his decision is binding, pending an appeal to the Ninth Circuit. The other terms (which apply nationwide) in the Flores consent decree in LA (these two were under the Ms. L. proceedings, in San Diego) mean that the parents and more importantly, the kids — cannot be detained indefinitely. The kids are entitled to release into the US, pending a final hearing on asylum. They may be released now, into the interior — to any other family member, upon a simple motion by the ACLU, under Flores.

I suspect the Ninth Circuit will offer the above cruelty based analysis — that kids aren’t taken in the US from parents who’ve served their time — to reverse and remand. But we shall see, in time. That’s two down, 27 yet to go. [There are 27 other parental denials of reunification cases like this being reviewed, by the ACLU as we speak.]

Onward. No real custom graphic — just some profound sadness, now six years on. Another hearing Friday — and another status report, tomorrow.


It Certainly Won’t Move The Needle, But Amazon Web Services Is Now Working With Kenilworth…

September 19, 2018 - Leave a Response

Forgive me if I read this as just one subtle but multi-paragraph commercial for the ever-pitching med biz consulting folk at old Accenture.

Becker’s Hospital Review has a nice story here — but it is built upon what is the usual breathless boosterism, out of 161 North Clark in Chicago (Accenture’s main digs). I doubt it will lead to any revolutionary, or even evolutionary, drug candidates — for Merck — but we shall see. Here’s a bit, this morning:

. . . .Merck [and Amazon Web Services] are building an informatics research platform on Amazon’s cloud computing service Amazon Web Services to support data-driven drug development.

The cloud-based platform will provide pharmaceutical, biotechnology and scientific institutions with access to research data from various applications, available through a single set of interfaces with integrated workflow and reporting capabilities. Through the platform, these organizations will be able to aggregate and analyze this data to support the early stages of drug development.

Merck, as one of the early collaborators, will be the first pharmaceutical company to use the platform.

The informatics research platform is part of an ongoing collaboration between management consulting and professional services firm Accenture and AWS through the Accenture AWS Business Group. . . .

Now you know. It is a morning literally awash in memories for me. Where is that [pocket sized, purple silken] fall-back disk? Smile. . . . onward.


Again, With Natural Science Stunners — Of Marine Biology…

September 18, 2018 - Leave a Response

Just because. . . it was so, so sublime (creating his own small “fall-back disk“):


[U] Of Stellar Remnant “Fall-Back Disks”: We Will Talk About This, In The Morning… Smile.

September 17, 2018 - Leave a Response

There’s been a fascinating discovery in deep interstellar space, over the weekend. UPDATED: do go read all about it, at’s Hubble page.

. . . .“One theory is that there could be what is known as a ‘fallback disk’ of material that coalesced around the neutron star after the supernova,” said Posselt. “Such a disk would be composed of matter from the progenitor massive star. Its subsequent interaction with the neutron star could have heated the pulsar and slowed its rotation. If confirmed as a supernova fallback disk, this result could change our general understanding of neutron star evolution. . . .” A fallback disk, warping space time itself. I like that notion, as a metaphor, for various events, from this day in 2012 (could well have averted it all). A time machine of sorts. . . .

. . . .Indeed, it is whirling ever so gracefully, into the night, some nearly six billion years on. . . and anyone who would like to describe what we are seeing above, feel free to chime in (this will all change — come morning). . . .

“. . .This animation depicts a neutron star (RX J0806.4-4123) with a disk of warm dust that produces an infrared signature as detected by NASA’s Hubble Space Telescope. The disk wasn’t directly photographed, but one way to explain the data is by hypothesizing a disk structure that could be 18 billion miles across. The disk would be made up of material falling back onto the neutron star after the supernova explosion that created the stellar remnant. . . .”

Yes do tune in — in the morning as six years on, there is so much to say — but silence is once again, the rule of the day. . . .for the story. Smile.


Honoring “The Mother” Of Our National Early Childhood Health Programs: Dr. Gertrude Hunter

September 16, 2018 - Leave a Response

In the first years after President Kennedy’s assassination, the Great Society programs he envisioned were implemented by LBJ.

And heading the effort — as part of what was then called “Project Head Start” — in health care for children, was Gertrude Hunter, MD. She was instrumental in seeing that US children would get basic dental care, nutrition assistance, immunizations and at least some routine health care screenings, for pre-schoolers of limited means. Mr. Trump threatens this legacy, but women in medicine — and men — will stand firm, against the cutting of kids of limited means’ health care, to fund more billionaires’ tax breaks and an insane border wall.

Here is the AMA’s tweet honoring her work, today:

. . . .Today we celebrate Dr. Gertrude Hunter and her work to keep America’s children happy and healthy. During her time as national director of health services for Project Head Start, she helped implement the first national preschool health program. . .Be sure to vote in November — for health care champions, and between now and then — do all you can to preserve the caring, compassionate and open society we call America.


[U] Merck’s Supremes Brief On “Fosamax® Femur Style” Preemption: “Clear And Convincing” Or Just “Clear”?

September 14, 2018 - One Response

We have followed this. . . literally from the jump. A decade’s worth, in fact. Merck now asks the Supremes to hold that Wyeth style preemption dismissals require only “clear” evidence that the label change/warning would not have been accepted — not the tougher standard of “clear and convincing” evidence.

Merck’s brief seeking just such a ruling from the Supremes — related to the now decade-long Fosamax® femur fracture cases — was filed yesterday (as a decidely hefty 117 page PDF file). Here’s a bit (but in all candor, with the court’s current “rightward shifting” make-up, I think Merck may well prevail here):

. . . .The Third Circuit nonetheless held that a jury could find that petitioner had not shown by “clear and convincing evidence” that the FDA would have rejected a warning label of the type that respondents claim state law required. . . .

Merck told the FDA what it knew about the link between its drug Fosamax and the risk of atypical femoral fractures; Merck filed a formal request seeking FDA approval to add a warning to Fosamax’s label addressing this risk; and the FDA rejected that request. In Wyeth v. Levine, this Court recognized that a pharmaceutical manufacturer cannot be held liable under state law for failure to warn about a health risk if the FDA would not have permitted the manufacturer to add that warning to its federally regulated label. 555 U.S. 555, 572–73 (2009). But unlike in Levine, here there is no need to guess what would have happened in a counterfactual world. It is clear that the FDA would not have allowed Merck to warn about the risk at issue because the FDA did not allow Merck to warn about it.

The Third Circuit nonetheless concluded that the preemption defense must be put to a jury — to decide as a counterfactual matter, while applying a unique, heightened standard of proof, whether the FDA might have approved a warning had Merck phrased it differently. That is misguided. The FDA’s final agency action controls the preemption inquiry here as a matter of law. There is no room under either the Supremacy Clause or the federal drug labeling laws to speculate about why the agency blocked compliance with the alleged state-law duty. . . .

It is often said that the party that wins the argument on standard of proof / burden of carrying it — wins the lawsuit. That adage seems like it will hold, in this one, before the Supremes.

Of course, we will post the plaintiffs’ reply brief in late October, when it is filed. Onward — to federal court asylum seekers’ hearings — on a flawless crystal clear 70 degree end of summer Friday. . . off-grid, through mid-, to end- of day.

[Oh. And just for fun — here is the Bobby Three Sticks “Crossfire Hurricane” Superseding Information, to which Manafort is copping a plea deal (including complete and ongoing cooperation), today — right now, in fact, in DC. The depth and breadth of it means. . . 45 is going “bye-bye” (IMHO). It seems Mr. Mueller is bit-by-bit releasing his Trump Impeachable Offenses / Russian “Report(s)” as a series of sworn federal court filings. Ones to which various Trumpians are pleading. . . guilty. Delicious.]


I Ask You To Read This, As Mr. Trump Is Violating The Due Process Clause, Daily.

September 13, 2018 - Leave a Response

One week ago, I mentioned the two cases of parents denied reunification with their very young children, on entirely specious grounds (in one case AFTER a judge told the government to reunify).

Tonight, the ACLU has fully briefed their pleas. The facts are. . . appalling. 45 and his goons are trampling our Constitution’s “Due Process” Clause, with every passing day here — and likely in hundreds of other cases, not yet known to the plaintiffs’ lawyers. Read the whole 52 page brief (as a PDF) here — and I’ll post a bit, tonight — before tomorrow’s hearing in San Diego:

. . . .As set forth below, there has been no finding that Ms. Q. and Mr. C. are unfit, neglectful, or dangerous to their children. In fact, the evidence shows that both children are suffering greatly without the care of their loving parents, and even regressing in their development as a result of their lengthy custody. J was toilet trained when he came to the United States with his mother, but now he needs diapers after having several accidents. D., for his part, is a toddler confused about being in a shelter and is struggling to make sense of life without his father. This Court has explained that the Due Process Clause does not permit the government to separate parents from their children without “a determination that the parent was unfit or presented a danger to the child.”

[An earlier Immigration Court Judge’s opinion and order:] My understanding is that in 2010, Mr. C was convicted of misdemeanor aggravated assault under Louisiana law, for which he received a sentence of 48 days in jail. My understanding is that the government has refused to reunify Mr. C with his son on the sole basis of this criminal conviction, and that he has no other criminal history. . . . In Ms. Q.’s case. . . . the warrant [conclusions only about some dubious gang activity long ago] does not come close to supporting a reasonable suspicion that she would endanger her son or is unfit to care for him. . . .

In my opinion, neither Mr. Q nor Mr. C’s criminal histories justifies separating them from their children. Considerably more would have to be alleged to deny parents their constitutionally protected right to the care and custody of their children. In the United States, under both federal and state law in all jurisdictions, there is no lawful basis to deny parents custody of their children based on the parents’ alleged criminal activities without a particularized showing that keeping or reuniting a child with her parent would place the child at imminent risk of serious harm. In these two instances, neither parent’s criminal histories, standing alone, would even permit a finding that reunification with the parent is not in the child’s best interests, much less justify their removal from their parents in the first instance. . . .

Hundreds of thousands of people with felony convictions in the United States have the constitutional right to the care and custody of their children once they served their sentences and are released from custody. To deny a father the same right for behavior that warranted a 48 day jail sentence would be manifestly unsupportable under the law governing this context. . . .

I (would like to still) believe Mr. Trump will certainly answer in Eternity, for these, his crimes against humanity — even if we, the people, aren’t able to have him answer directly, in a court of law, for them — in this lifetime.

But based on life-changing experiences, I have surrendered my belief in much of that covenant: no, in fact, I think all that we have — all that we are — all that we will be — is right here and now. This lifetime. This moment. And Mr. Trump must be brought to justice — for these ongoing crimes.


September 11 Update: From WHO, On DRC Mid 2018 Ebola Outbreak In Beni…

September 13, 2018 - Leave a Response

The outlook for an end, in Beni, Democratic Republic of The Congo remains. . . fairly dicey — no clear path to an arrest of the latest outbreak, yet. Beni is a city with over a million people living in very close proximity to one another. That makes the whole situation. . . hard to control.

Even so, 36 people infected with the virus have now recovered. That is better news than was seen in any prior outbreak, on a percentage basis.

However, now a total of 17 health workers (16 confirmed and 1 probable) have been affected, three of whom have died. Here is the latest full WHO situation report, and a bit:

. . . .[Since the last report] an additional 10 new confirmed or probable EVD cases have been reported from Butembo (2), Beni (5) Mabalako (1), Mandima (1), and Masereka (1) and nine new deaths. Currently there are nine suspected cases under investigation. . . .

As of 9 September 2018, a total of 132 confirmed and probable EVD cases, including 91 deaths and 36 cases who have recovered, have been reported. . . .

Keep the good ju ju flowing for these folks — and for all threatened by Florence, starting tonight.

[Separately, what are we to make of Pugsley, overnight? He tells us (by tweet) that 3,000 did not die in Puerto Rico? What to do with a guy who will lie to you — about what time it is — just for the practice? His first instinct, it seems, is to lie. Horrifying.]


There Is Apparently An Agreed (Albeit Partial) Settlement, In The Ms. L Class Action Case — Out Of San Diego…

September 13, 2018 - Leave a Response

The proposed overnight agreement (seven pages) is here. I expect the able Judge Sabraw will enter it.

Even so, I’ll just say (for now) that the Flores case (in LA) will continue — as an ongoing check against renewed lawlessness, on ICE’s part. I will also note that this does not end the ACLU’s efforts on the likely coming TRO in the new hearings in DC (in the Carmen case), on “credible fear” standards — now unlawfully being used by ICE. It also doesn’t alleviate the need for a special master. Here’s a bit:

. . . .In accordance with the Court’s orders and directions, the parties met and conferred, both on the issues directed by the Court and additional issues raised in these and related cases. Those conferrals included counsel for the plaintiffs in M.M.M., counsel for the plaintiffs in Ms. L, counsel for the plaintiffs in Dora v. Sessions, No. 18-1938 (D.D.C.), and counsel for the Defendants in each of those cases. The parties’ efforts have produced the attached agreement, which reflects their agreed resolution of the issues identified by the Court as well as other matters. . . .

Do go read it all. And here is the related settlement motion. But it is — to be sure — a good start. Onward, with renewed hope.