Context: Consequently, there was insufficient evidence to demonstrate that appellant was entitled to a self-defense instruction.

trial court's refusal to give self-defense instruction was affirmed where no evidence produced to show accused was threatened by victim

See State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989) (trial court’s refusal to give self-defense instruction upheld where appellant failed to produce sufficient evidence that victim was about to inflict death or serious bodily injury to appellant); see also Asbury, 187 W.Va. 87, 415 S.E.2d at 891 (trial court’s refusal to give self-defense instruction was affirmed where no evidence produced to show accused was threatened by victim). Accordingly, the trial court committed no error in refusing to instruct the jury on self-defense.

trial court's refusal to give self-defense instruction upheld where appellant failed to produce sufficient evidence that victim was about to inflict death or serious bodily injury to appellant


Context: He also argues that the district court erred in relying on those statements despite the government's failure to provide sufficient evidence corroborating their content. But we have no need to consider either of those issues because the record contains sufficient facts -- affected neither by the alleged coercion nor by the lack of corroboration -- to support the district court's conclusion that Esmail was "part of' al Qaeda at the time of his capture.

clarifying that in habeas appeals involving Guantanamo Bay detainees, we review district court fact findings for clear error, and we review the ultimate issue of whether the detainee was "part of' al Qaeda de novo

See Bensayah v. Obama, 610 F.3d 718, 724-25 (D.C.Cir.2010) (“[T]he [Authorization for Use of Military Force] authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda.”); see also Barhoumi v. Obama, 609 F.3d 416, 423 (D.C.Cir.2010) (clarifying that in habeas appeals involving Guantanamo Bay detainees, we review district court fact findings for clear error, and we review the ultimate issue of whether the detainee was “part of’ al Qaeda de novo).

"[T]he [Authorization for Use of Military Force] authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda."


Context: NEPA regulations direct the agency to consider the degree of adverse effect on a species, not the impact on individuals of that species.

"[Issuance of an incidental take statement 'anticipating' the loss of some members of a threatened species does not automatically lead to the requirement to prepare a full EIS."

See Native Ecosystems, 428 F.3d at 1240 (“[I]t does not follow that the presence of some negative effects neces sarily rises to the level of demonstrating a significant effect on the environment.”); see also Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1276(10th Cir.2004) (“[Issuance of an incidental take statement ‘anticipating’ the loss of some members of a threatened species does not automatically lead to the requirement to prepare a full EIS.”).

"[I]t does not follow that the presence of some negative effects neces sarily rises to the level of demonstrating a significant effect on the environment."


Context: But the court has not invoked this rule in every capital case.

discussing SS 17-110.1 and noting that Virginia's contemporaneous objection rule applies to "other issues"

See Joseph v. Commonwealth, 249 Va. 78, 452 S.E.2d 862, 871 (1995) (reviewing on the merits capital appellant's challenge to Commonwealth’s opening statement, after noting that appellant “failed to object to any of the opening statement"); cf. Briley v. Bass, 584 F.Supp. 807, 816 (E.D.Va.1984) (discussing § 17-110.1 and noting that Virginia’s contemporaneous objection rule applies to “other issues”).

reviewing on the merits capital appellant's challenge to Commonwealth's opening statement, after noting that appellant "failed to object to any of the opening statement"


Context: In addition, the shocks the conscience standard recognizes "the dilemma of conflicting obligations."

noting physicians must be able "to operate effectively to protect the interests of the individuals about whom they [make assessments of risk] and of the public"

Olivier, 398 F.3d at 198 (noting physicians must be able “to operate effectively to protect the interests of the individuals about whom they [make assessments of risk] and of the public”); see also Lombardi, 485 F.3d at 82 (“In the apparent absence of harmless options at the time decisions must be made, an attempt to choose the least of evils is not itself shocking”).

"In the apparent absence of harmless options at the time decisions must be made, an attempt to choose the least of evils is not itself shocking"


Context: In reviewing an award of attorneys' fees, we apply an abuse of discretion standard. However, we require district courts "to clearly set forth their reasoning for fee awards so that we will have a sufficient basis to review" them.

in analogous statutory fee-shifting case, remanding for re-calculation of attorneys' fees where district court's methodology prevented appellate courts from exercising "meaningful appellate review"

Cf. Perdue v. Kenny A., — U.S. —, 130 S.Ct. 1662, 1676, 176 L.Ed.2d 494 (2010) (in analogous statutory fee-shifting case, remanding for re-calculation of attorneys’ fees where district court’s methodology prevented appellate courts from exercising “meaningful appellate review”).

district court must perform "extensive analysis and inquiry before determining the amount of fees" so court of appeals can exercise its "independent interest in monitoring ... awards"

Id. at 301; see also Cendant PRIDES Litig., 243 F.3d at 728 (district court must perform “extensive analysis and inquiry before determining the amount of fees” so court of appeals can exercise its “independent interest in monitoring ... awards”).


Context: Since its enactment in 1967, the OTCA has applied to some claims against public bodies that were not barred by sovereign immunity. At common law, sovereign immunity applied to municipal corporations, such as the city, only when they were engaged in "governmental functions"; municipal corporations had no sovereign immunity as to "proprietary functions."

OTCA "widened" class of plaintiffs "by removing the requirement that an injured party show that the municipal corporation's activity that led to the injury was a proprietary one"

See Or Laws 1967, ch 627, § 2 (“Subject to the limitations of this Act, every public body is liable for its torts * * * whether arising out of a governmental or proprietary function.”), codified as since amended at ORS 30.265(1) (“Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts * * * whether arising out of a governmental or proprietary function * * *.”); Hale, 308 Or at 523 (OTCA “widened” class of plaintiffs “by removing the requirement that an injured party show that the municipal corporation’s activity that led to the injury was a proprietary one”).

Hale v. Port of Portland, 308 Or 508, 518-19, 783 P2d 506 (1990) (noting that maintenance of roads and streets had been considered to be proprietary activity, while operation of a city park had been considered to be governmental). With the enactment of the OTCA, the legislature effectively abolished the “governmental/proprietary” function distinction, making both types of claims subject to the limitations contained within the OTCA.


Context: P 17 Robles argues that Nash is distinguishable from Hauss because Nash committed his crime and was sentenced before Hauss was decided. But the result in Nash was not based on those procedural facts, our supreme court has continued to follow Nash, and we are bound by its decisions.

court approved finding of prior conviction when "state introduced a certified copy of California's Disposition of Arrest and Court Action" because "[t]he state can make that showing through the use of extrinsic evidence, including 'a certified copy of a judgment of conviction.' "

State v. Smyers, 207 Ariz. 314, n. 4, 86 P.3d 370, 374 n. 4 (2004) (“courts of this state are bound by the decisions of" Arizona Supreme Court); see White, 160 Ariz. at 28, 770 P.2d at 332 (applying Nash); see also State v. Van Adams, 194 Ariz. 408, ¶¶ 37, 36, 984 P.2d 16, 27 (1999) (court approved finding of prior conviction when “state introduced a certified copy of California’s Disposition of Arrest and Court Action” because “[t]he state can make that showing through the use of extrinsic evidence, including ‘a certified copy of a judgment of conviction.’ ”) (emphasis added), quoting Nash, 143 Ariz. at 403, 694 P.2d at 233; State v. Hurley, 154 Ariz. 124, 132, 741 P.2d 257, 265 (1987) (without specifying which documents were required, but finding a presentence report insufficient, court stated, “to prove prior convictions, the state must offer in evidence a certified copy of the documents establishing the conviction”); State v. Avila, 147 Ariz. 330, 338-39, 710 P.2d 440, 448-49 (1985) (“documents ... from the Department of Corrections’ file on the defendant” sufficient to prove crime committed while defendant was on release status); State v. Richards, 166 Ariz. 576, 579, 804 P.2d 109, 112 (App.1990) (same as Hurley). In sum, relying on the certified copy of the DOC documents showing Robles’s prior convictions as well as testimony that linked those records to him, the trial court had sufficient evidence before it to find he had prior convictions.

"courts of this state are bound by the decisions of" Arizona Supreme Court


without specifying which documents were required, but finding a presentence report insufficient, court stated, "to prove prior convictions, the state must offer in evidence a certified copy of the documents establishing the conviction"


"documents ... from the Department of Corrections' file on the defendant" sufficient to prove crime committed while defendant was on release status


Context: Thus, a defendant must at the very least know he is being deceptive while sending multiple commercial emails. Under Mor-issette, and its progeny, this satisfies the "evil-meaning mind" requirement.

holding statute imposing criminal sanctions for deliberately false statements submitted to federal agency, even without a showing that defendant knew they were being submitted to the federal government, did not constitute a "trap for the unwary"

See U.S. v. Yermian, 468 U.S. 63, 74-75, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984) (holding statute imposing criminal sanctions for deliberately false statements submitted to federal agency, even without a showing that defendant knew they were being submitted to the federal government, did not constitute a “trap for the unwary”).

interpreting Yermian as holding that requiring government to prove defendant knowingly and willingly made a false statement satisfied the "evil-meaning mind" requirement with respect to that element of the crime

Cf. Liparota v. U.S., 471 U.S. 419, 432 n. 15, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (interpreting Yermian as holding that requiring government to prove defendant knowingly and willingly made a false statement satisfied the “evil-meaning mind” requirement with respect to that element of the crime).


Context: We previously have examined the concept of scienter, and the allegations of scienter that must be made to survive a motion to dismiss, in the context of claims under SS 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. SS 78j(b) (1982), and SEC Rule 10b-5, 17 C.F.R. SS 240.10b-5 (1986). Insofar as these cases deal with the adequacy of allegations of scienter, they are applicable to claims under the Williams Act.

SS 14(e) is "modeled on the anti-fraud provisions of SS 10(b) ... and Rule 10b-5"

Chris-Craft, supra, 480 F.2d at 362 (principles developed under Rule 10b-5 are applicable in determining whether § 14(e) violations were committed); see also Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 10 (1985) (§ 14(e) is “modeled on the anti-fraud provisions of § 10(b) ... and Rule 10b-5”).

principles developed under Rule 10b-5 are applicable in determining whether SS 14(e


Context: 84. Class certification requires also that the class representatives represent adequately the interests of the class. Although it is not necessary for the putative class representatives' claims to be identical to those of absent class members, due process precludes certification if the named plaintiffs possess potentially conflicting interests that may impair the vigorous prosecution of the class claims.

See Georgine, 83 F.3d at 631 (“presently injured class representatives cannot adequately represent the future plaintiffs’ interests and vice versa”); GM Trucks 55 F.2d at 801 (“[W]e must be concerned that the individual owners had no incentive to maximize the recovery of the government entities; they could skew the terms of the settlement to their own benefit.”); contrast Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84, 109-110 (3d Cir.1979) (possible disagreement among class members as to appropriate relief is no bar to certification at the liability stage), rev’d on other grounds, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); Link v. Mercedes-Benz, 788 F.2d 918, 929 (3d Cir.1986) (holding in suit against manufacturers and dealers for price fixing or repairs that fact that class members obtained repairs from different dealerships did not create antagonism to preclude finding of adequate representation).

"presently injured class representatives cannot adequately represent the future plaintiffs' interests and vice versa"


holding in suit against manufacturers and dealers for price fixing or repairs that fact that class members obtained repairs from different dealerships did not create antagonism to preclude finding of adequate representation


Context: Additionally, seven of our sister circuits have addressed similar questions concerning statutorily mandated benefits. "Every regional circuit to address the question ... has concluded that applicants for benefits, no less than benefits recipients, may possess a property interest in the receipt of public welfare entitlements."

holding an applicant for a disabled child's annuity was denied due process

Kapps v. Wing, 404 F.3d 105, 115 (2d Cir.2005); see, e.g., Kelly v. R.R. Ret. Bd., 625 F.2d 486, 489-90 (3d Cir.1980) (holding an applicant for a disabled child’s annuity was denied due process); Mallette v. Arlington Cnty. Employees’ Supplemental Ret. Sys. II, 91 F.3d 630, 634-35 (4th Cir.1996) (concluding that a statute’s mandatory language gives an applicant a property interest in retirement benefits which triggers procedural due process protection); Hamby v. Neel, 368 F.3d 549, 559-60 (6th Cir.2004) (affirming that eligible applicants for Medicaid benefits have a legitimate claim of entitlement which invokes procedural due process); Wright v. Califano, 587 F.2d 345, 354 (7th Cir.1978) (“[Benefit] denials do not necessarily deserve less due process than terminations.”); Daniels v. Woodbury Cnty., Iowa, 742 F.2d 1128, 1132 (8th Cir.1984) (refusing to distinguish between applicants and recipients when analyzing the due process requirements for determining eligibility for Iowa welfare benefits); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.1990) (“An applicant for social security benefits has a property interest in those benefits.”); Ressler v. Pierce, 692 F.2d 1212, 1214 (9th Cir.1982) (affirming that applicants for federal rent subsidies are entitled to due process protection); Griffeth v. Detrich, 603 F.2d 118, 119 (9th Cir.1979) (holding that applicants for welfare benefits had a property interest or legitimate claim of entitlement and were entitled to due process to protect that interest); see also Cook v. Principi, 318 F.3d 1334, 1352 (Fed.Cir.2002) (en banc) (Gajarsa, J. dissenting) (concluding that the statutory mandate of veteran disability benefits entitles applicants to procedural due process).


concluding that a statute's mandatory language gives an applicant a property interest in retirement benefits which triggers procedural due process protection


affirming that eligible applicants for Medicaid benefits have a legitimate claim of entitlement which invokes procedural due process


"[Benefit] denials do not necessarily deserve less due process than terminations."


refusing to distinguish between applicants and recipients when analyzing the due process requirements for determining eligibility for Iowa welfare benefits


"An applicant for social security benefits has a property interest in those benefits."


affirming that applicants for federal rent subsidies are entitled to due process protection


holding that applicants for welfare benefits had a property interest or legitimate claim of entitlement and were entitled to due process to protect that interest


Context: But cf. Thomas v. Adams (In re Gary Brew Enters.

in debtor's adversary proceeding against third parties, bankruptcy court had no jurisdiction because the debtor's discrimination claims were properly characterized as "personal injury tort" claims within the meaning of 28 U.S.C. SS 157(b

Ltd.), 198 B.R. 616 (Bankr.S.D.Cal.1996) (Peterson, C.J.) (concluding that racial discrimination claim was in the nature of a "personal injury tort” necessitating trial in the district court); see also Williamson v. Patterson (In re Patterson), 150 B.R. 367, 368 (E.D.Va.1993); cf. Boyer v. Balanoff (In re Boyer), 93 B.R. 313 (Bankr.N.D.N.Y.1988) (Gerling, J.) (in debtor’s adversary proceeding against third parties, bankruptcy court had no jurisdiction because the debtor’s discrimination claims were properly characterized as "personal injury tort” claims within the meaning of 28 U.S.C. § 157(b)(5)); Smith v. New York State Higher Education Servs.

concluding that racial discrimination claim was in the nature of a "personal injury tort" necessitating trial in the district court


Context: Defendant, however, claims that "the IAD is the exclusive means to secure the presence of a defendant for purposes of prosecution." Br. of Appellant at 14. Defendant's contention is clearly mistaken. First, Indiana has definitively denominated two methods of securing the presence of defendants who are in the custody of foreign jurisdictions -- the IAD pursuant to Ind.Code SS 35-33-10-4 and the Writ set forth in Ind.Code SS 35-33-10-5. Second, as we discussed supra, the Writ has continued to be accepted as a proper procedure for securing the presence of prisoners for criminal prosecution.

"The decision by federal authorities to honor a writ in the absence of a detainer as a matter of comity does not trigger the provision of the [IAD]."

See also McLemore, 311 N.W.2d at 721 (“The decision by federal authorities to honor a writ in the absence of a detainer as a matter of comity does not trigger the provision of the [IAD].”); Flick, 887 F.2d at 778. And finally, a Writ does not constitute a detainer for purposes of the IAD.

"The role and functioning of the ad prosequendum writ are rooted in history, and they bear little resemblance to the typical detainer which activates the provisions of the [IAD]."

See Mauro, 436 U.S. at 358, 98 S.Ct. 1834 (“The role and functioning of the ad prosequendum writ are rooted in history, and they bear little resemblance to the typical detainer which activates the provisions of the [IAD].”).


Context: Put simply, there is no evidence in the record establishing to a reasonable degree of certainty that Horizon would have won the Westlake contract absent the defendants' misconduct, and Balcombe specifically acknowledged that he based his calculations on the assumption that Horizon would have won the Westlake contract had the defendants not committed the underlying torts. Thus, Horizon failed to establish the fact of damages relating to the Westlake contract with reasonable certainty.

"Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact 'more probable or less probable.'" (quoting Tex. R. Evid. 401

See Heine, 835 S.W.2d at 85 (“[T]he bare assertion that contracts were lost does not demonstrate a reasonably certain objective determination of lost profits.”); see also Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (“Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact ‘more probable or less probable.’” (quoting Tex. R. Evid. 401)).

"[T]he bare assertion that contracts were lost does not demonstrate a reasonably certain objective determination of lost profits."


Context: As Kansas Attorney General and later as Johnson County District Attorney, Kline held positions of particular honor, responsibility, and trust--positions bestowed on him by the citizens of Kansas and the Johnson County Republican Central Committee, respectively. When Kline violated rules regulating his professional conduct, he betrayed that trust, causing "incalculable harm to the public's perception" of both offices.

By violating ethical rules in filing false financial disclosure forms and soliciting improper compensation, Ohio Attorney General caused significant harm not only to his office but also to "those government agencies, departments, and institutions that the attorney general advises and represents."

See Disciplinary Counsel v. Dann, 134 Ohio St. 3d 68, 74, 979 N.E.2d 1263 (2012) (By violating ethical rules in filing false financial disclosure forms and soliciting improper compensation, Ohio Attorney General caused significant harm not only to his office but also to “those government agencies, departments, and institutions that the attorney general advises and represents.”); see also In re Marinoff, 819 So. 2d 305, 312-13 (La. 2002) (Adverse publicity from assistant city attorney’s professional misconduct in making false statements regarding automobile accident harmed tire public’s perception of the legal profession.); Office of Disciplinary Counsel v. Cappuccio, 616 Pa. 439, 48 A.3d 1231, 1240 (2012) (Misconduct of attorneys serving in public positions “speaks directly to the integrity of the legal system by placing the reputation of those tasked with serving and protecting the public at issue.”).

Adverse publicity from assistant city attorney's professional misconduct in making false statements regarding automobile accident harmed tire public's perception of the legal profession.


Misconduct of attorneys serving in public positions "speaks directly to the integrity of the legal system by placing the reputation of those tasked with serving and protecting the public at issue."


Context: Judge Ivers also concludes, without supporting citation or analysis, that the appellant's counsel bore "the lion's share of the responsibility for keeping the Court and VA advised under the facts in this case" as to the September 1992 RO award. I fail to see how the appellant's counsel is responsible for advising the Secretary what his own agents have done. I also fail to see how the Secretary and his counsel are somehow less responsible than the appellant for keeping the Court properly advised about adjudication actions by their own Department that may have a bearing on a pending appeal.

Secretary's counsel has "a duty, as an officer of this Court, to weigh and consider carefully the propriety of the response to be given the Court"

See MacWhorter v. Derwinski, 2 Vet.App. 655, 657 (1992) (Secretary’s counsel has "a duty, as an officer of this Court, to weigh and consider carefully the propriety of the response to be given the Court”); MacWhorter v. Derwinski, 2 Vet.App. 133, 135 (1992) ("counsel has an ethical obligation to correctly advise the Court of the facts and the law”); cf. Jones (Joseph) v. Derwinski, 1 Vet.App. 596, 606 (1991) ("Court must be able to rely on the representations of those who practice before it”).

"Court must be able to rely on the representations of those who practice before it"


"counsel has an ethical obligation to correctly advise the Court of the facts and the law"


Context: Defendant responds that it was not required to affirmatively plead that it is a religious institution "because religious institution status is not a defense, but a statutorily granted exemption." Contrary to defendant's position, the courts have consistently held that statutory exemptions, particularly from remedial statutes, must be pled as affirmative defenses.

holding that defendants waived defense of "personal staff' exception to Title VII by failing to plead same

See Oden v. Oktibbeha County, Miss., 246 F.3d 458, 467 (5th Cir.2001) (holding that defendants waived defense of “personal staff’ exception to Title VII by failing to plead same); Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1279-1280 (10th Cir.1998)(holding that “[a] claim of exemption is an affirmative defense, which must be specifically pleaded.”); Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1013 (11th Cir.1982) (recognizing that cases “have generally treated statutory exceptions from remedial statutes as affirmative defenses”); Schwind v. EW & Assoc., Inc., 357 F.Supp.2d 691, 697 (S.D.N.Y.2005) (defense of exemption under a remedial statute must be specifically pled or will be waived); see also Vore v. Colonial Manor Nursing Center, No. 3-03-CV-1660-BD(P), 2004 WL 2348229, at 3 (N.D.Tex. Oct. 19, 2004) (recognizing that “[cjonsistent with the remedial purposes of the ADA, a charge of employment discrimination must be construed with the ‘utmost liberality’ ”).

recognizing that "[cjonsistent with the remedial purposes of the ADA, a charge of employment discrimination must be construed with the 'utmost liberality' "


holding that "[a] claim of exemption is an affirmative defense, which must be specifically pleaded."


recognizing that cases "have generally treated statutory exceptions from remedial statutes as affirmative defenses"


defense of exemption under a remedial statute must be specifically pled or will be waived


Context: . We are concerned our analysis may give rise to constitutional challenge every time a victim is allowed to remain in the courtroom during a criminal trial. Accordingly, we reiterate the observation made in Rangel, that "inconsistent statements of witnesses, whether they be by the actual victim or others, are in many cases simply a credibility factor that the finder of fact must weigh in determining the outcome."

finding no prejudice from trial court's refusal to exclude sister of rape victim from courtroom, noting "[t]here is no absolute right to have witnesses excluded during the progress of a trial."

See State v. Bonza, 72 Utah 177, 269 P. 480, 482 (1928) (finding no prejudice from trial court's refusal to exclude sister of rape victim from courtroom, noting "[t]here is no absolute right to have witnesses excluded during the progress of a trial.”); see also State v. Moore, 111 Utah 458, 183 P.2d 973, 977 (1947) (finding no prejudice from presence of rape victim throughout trial where she was first witness and her subsequent rebuttal testimony "merely categorically denied certain testimony"); State v. Smith, 90 Utah 482, 62 P.2d 1110, 1116 (1936) (finding no abuse of discretion where trial court allowed witness who violated exclusion order to testify); State v. Green, 89 Utah 437, 57 P.2d 750, 754 (1936) (finding no prejudice where witness who violated exclusion order referred to testimony of earlier witness in own testimony).


finding no abuse of discretion where trial court allowed witness who violated exclusion order to testify


finding no prejudice where witness who violated exclusion order referred to testimony of earlier witness in own testimony


Context: Additionally, the court's broad discretion in awarding and denying fees paid in connection with bankruptcy proceedings empowers the bankruptcy court to order disgorgement as a sanction to debtors' counsel for nondisclosure.

holding that total denial of compensation is the only appropriate sanction for nondisclosure of all facts bearing upon counsel's eligibility and all connections with debtor, including counsel's retainer agreement

See 11 U.S.C. §§ 327, 1107(a) (requiring court approval before debtor-in-possession may employ counsel); id. § 330(a) (requiring court approval of professional fees); Woods v. City Nat’l Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941) (using denial of compensation as tool for strict enforcement of conflict-of-interest rules); Anderson v. Anderson (In re Anderson), 936 F.2d 199, 204 (5th Cir.1991) (recognizing bankruptcy court’s broad discretion as court of equity to grant or deny fees and noting that attorney has no absolute right to fee award absent compliance with Code and rules); In re Key Largo Land, Inc., 158 B.R. 883, 884 (Bankr.S.D.Fla.1993) (recognizing that any payment to debtor’s attorney, regardless of the source, is reviewable by the bankruptcy court); see also Futuronics Corp. v. Arutt, Nachamie, & Benjamin (In re Futuronics Corp.), 655 F.2d 463, 469-71 (2d Cir.1981) (holding that total denial of compensation is the only appropriate sanction for nondisclosure of all facts bearing upon counsel’s eligibility and all connections with debtor, including counsel’s retainer agreement), cert. denied, 455 U.S. 941, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); In re Arlan’s Dept.


recognizing bankruptcy court's broad discretion as court of equity to grant or deny fees and noting that attorney has no absolute right to fee award absent compliance with Code and rules


recognizing that any payment to debtor's attorney, regardless of the source, is reviewable by the bankruptcy court


Context: These two sentences cannot meet NIH's burden with respect to Exemption 4.

rejecting application of Exemption 4 because the harm that would allegedly result from disclosure of pricing information was "speculative"

See 5 U.S.C. § 552(a)(4)(B) (an agency bears the burden of demonstrating the validity of any exemption that it asserts). NIH fails to identify with any level of specificity what it means by “cost and rate” information, nor explain how such information could be used by competitors to cause substantial harm to CRL. NIH’s failure in this regard is problematic, as courts in this Circuit routinely reject Exemption 4 arguments that are grounded in generalizations. See Ctr. for Public Integrity v. Dep’t of Energy, 191 F.Supp.2d 187, 194-95 (D.D.C.2002) (“The Courts of this Circuit have viewed [Exemption 4] arguments with skepticism, generally requiring agencies to disclose information under Exemption 4’s competitive harm prong unless they are able to demonstrate that release of the information would be of substantial assistance to competitors in estimating and undercutting a bidder’s future bids.”); Brownstein Zeidman & Schomer v. Dep’t of Air Force, 781 F.Supp. 31, 33 (D.D.C.1991) (rejecting application of Exemption 4 because the harm that would allegedly result from disclosure of pricing information was “speculative”).

holding that competitive harm would result where the agency identified 212 competitors and explained how the requested information could be used in combination with publicly available information to "disrupt supply, product lines, supply chains, and customers"

Cf. Gilda Indus., 457 F.Supp.2d at 11 (holding that competitive harm would result where the agency identified 212 competitors and explained how the requested information could be used in combination with publicly available information to “disrupt supply, product lines, supply chains, and customers”).


Context: The court reviews remand determinations for compliance with the court's remand order. NMB Sing.

affirming after "review[ing] Commerce's compliance with these instructions in its Remand Results" and finding the determination to be supported by substantial evidence and in accordance with law

Ltd. v. United States, 28 C.I.T. 1252, 341 F.Supp.2d 1327 (2004)(affirming International Trade Commission’s determinations on remand where the determinations were in accordance with law, supported by substantial evidence, and otherwise satisfied the remand order); see also Olympia Indus., Inc. v. United States, 23 CIT 80, 82, 36 F.Supp.2d 414, 416 (1999)(affirming after “review[ing] Commerce’s compliance with these instructions in its Remand Results” and finding the determination to be supported by substantial evidence and in accordance with law).

affirming International Trade Commission's determinations on remand where the determinations were in accordance with law, supported by substantial evidence, and otherwise satisfied the remand order


Context: Moreover, even if the underlying tort must be a common-law tort, workplace actions that amount to sexual or racial harassment can and frequently do constitute common-law torts.

concluding that the First Amendment did not preclude prosecution of negligent retention claim against a church by church employees based upon the "sexual misconduct" of the minister

See Smith, 495 S.E.2d at 398 (concluding that the First Amendment did not preclude prosecution of negligent retention claim against a church by church employees based upon the “sexual misconduct” of the minister); Brown v. Burlington Indus., Inc., 93 N.C.App. 431, 378 S.E.2d 232 (1989) (affirming jury’s determination that co-worker’s pattern of sexual harassment amounted to intentional infliction of emotional distress, which provided the basis for a verdict against the employer on a negligent retention claim); cf. Bryant v. Thalhimer Bros., Inc., 113 N.C.App. 1, 437 S.E.2d 519 (1993) (concluding that evidence of sexual harassment by a supervisor supported verdict in favor of the plaintiff on a claim of intentional infliction of emotional distress).


affirming jury's determination that co-worker's pattern of sexual harassment amounted to intentional infliction of emotional distress, which provided the basis for a verdict against the employer on a negligent retention claim


Context: The gun was sitting on a nightstand in the bedroom. (Tr. at 16.) Although it was covered by a hat (id.), one can be certain that the police did not dispatch up to eighteen well-trained and specially selected officers to be foiled by a hat. They would certainly have found the gun and, given all of the circumstances, including its being found within two feet of his personal identification (see id. at 17), would have seized it for use as evidence in this case.

See United States v. Kirk, 111 F.3d 390, 392-93 (5th Cir.1997) (gun discovered by officer during an allegedly unlawful search was properly admitted in evidence because other officers, having commenced a proper inventory search, would inevitably have discovered it); United States v. Lockett, 2004 WL 73726, *4 (E.D.Pa.2004) (contraband, including gun, would have inevitably been discovered in defendant’s luggage during a lawful inventory search, so even if consent to search luggage had been revoked, gun was admissible under the inevitable discovery doctrine); cf. United States v. Meade, 110 F.3d 190, 198 n. 12 (1st Cir.1997) (even if arrest of defendant had been initiated by law enforcement agent lacking probable cause, it is apparent that an agent who did have knowledge constituting probable cause arrived on scene and would have imminently and lawfully discovered and arrested defendant).


contraband, including gun, would have inevitably been discovered in defendant's luggage during a lawful inventory search, so even if consent to search luggage had been revoked, gun was admissible under the inevitable discovery doctrine


Context: Appellant argues that he was the subject of an unreasonable seizure when, after being issued the written warning for speeding, he was further detained and subjected to Baxley's additional questioning and the drug dog sniff. Appellant's claim is premised on the principle that an investigative detention should last no longer than necessary to effectuate the purpose of the stop.

Terry stops tolerated absent probable cause because "they are brief and as narrowly circumscribed as possible"

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see State v. Winegar, 147 Ariz. 440, 447, 711 P.2d 579, 586 (1985) (Terry stops tolerated absent probable cause because “they are brief and as narrowly circumscribed as possible”); cf. State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App.1999) (continued detention of passenger following driver’s arrest justified by reasonable suspicion).

continued detention of passenger following driver's arrest justified by reasonable suspicion


Context: In Geders the Court held that a criminal defendant's Sixth Amendment right to counsel was denied by a district court order barring consultation between the defendant and his attorney during an overnight recess that fell between the direct examination and the cross-examination of the defendant. The Court, however, expressly noted that it was not considering an order that merely barred a defendant from consulting his attorney during a brief routine recess during the trial day.

dicta that the court has "grave doubts that even a brief restriction on a criminal defendant's right to confer with counsel can be squared with the Sixth Amendment"

United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976) (holding an order directing defendant not to converse with anyone during an hour lunch break violative of the Sixth Amendment right to counsel); United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977) (holding that a restriction on a defendant’s right to consult with his attorney during two brief routine recesses, one 20 minutes and the other “a minute”, is constitutionally impermissible); see United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8th Cir. 1978) (dicta that the court has “grave doubts that even a brief restriction on a criminal defendant’s right to confer with counsel can be squared with the Sixth Amendment”).


holding that a restriction on a defendant's right to consult with his attorney during two brief routine recesses, one 20 minutes and the other "a minute", is constitutionally impermissible


Context: The California courts had held that the contract sufficiently expressed the parties' intent to incorporate California arbitration rules into their agreement. Thus, the Court's analysis in Volt presupposed that the contract had expressed the parties' clear intent to depart from the FAA's rules.

"Volt and Mastrobuono both direct courts to respect the terms of the agreement without regard to the federal policy favoring arbitration."

See EEOC v. Waffle House, Inc., 534 U.S. 279, 293 n. 9, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (“Volt and Mastrobuono both direct courts to respect the terms of the agreement without regard to the federal policy favoring arbitration.”).

stating that "the interpretation of private contracts is ordinarily a question of state law, which this Court does not sit to review."

Id. at 474, 109 S.Ct. 1248 (stating that "the interpretation of private contracts is ordinarily a question of state law, which this Court does not sit to review.”). The holding of Volt is simply that parties may modify the rules of arbitration with clear contractual language.


Context: The 1937 act imposed strict liability on anyone who allowed a pollutant to escape into the waters of the State.

landfill operator held liable under the statute, even in the absence of "guilty knowledge," because the landfill polluted streams

State v. Kinsley, 103 N.J.Super. 190, 192-94 (Law Div.1968), aff’d, 105 N.J.Super. 347 (App.Div.1969) (landfill operator held liable under the statute, even in the absence of “guilty knowledge,” because the landfill polluted streams); see Lansco, Inc. v. De partment of Envtl. Protection, 138 N.J.Super. 275 (Ch.Div.1975) (insurer held liable under comprehensive liability policy covering “all sums which the insured shall become legally obligated to pay as damages ...” because insured, the owner of a tank farm, was strictly liable under statute for cleaning up oil spill even if the spill was caused by a third party).

insurer held liable under comprehensive liability policy covering "all sums which the insured shall become legally obligated to pay as damages ..." because insured, the owner of a tank farm, was strictly liable under statute for cleaning up oil spill even if the spill was caused by a third party


Context: Kuciemba's claim that the Pasows are a mother and father to him is also unavailing. Even if Kuciemba's relationship with the Pa-sows resembles a parent-child relationship, Congress, through the plain language of the statute, precluded a functional definition for the term "parent."

because a niece is not a "child" within the meaning of the statute, hardship to petitioner's nieces need not be considered

See id. at 90,107 S.Ct. at 382 (because a niece is not a “child” within the meaning of the statute, hardship to petitioner’s nieces need not be considered); see also Dill v. INS, 773 F.2d 25, 31 (3rd Cir.1985) (hardship to petitioner’s uncle and aunt who were also her de facto parents was not relevant).

hardship to petitioner's uncle and aunt who were also her de facto parents was not relevant


Context: The district court correctly decided that Jaymz could not maintain a substantive due process claim premised on his initial removal. "[SJubstantive due process may not be called upon when a specific constitutional provision (here, the Fourth Amendment) protects the right allegedly infringed upon."

concluding that child's substantive due process claim could not succeed to the extent it was premised on his removal from his home because the Fourth Amendment addressed that seizure

Doe v. Heck, 327 F.3d 492, 518 n. 23 (7th Cir.2003) (concluding that a child’s constitutional claim premised on his seizure is analyzed under the Fourth Amendment rather than substantive due process unless it is alleged that the seizure “coincided with other conduct amounting to an interference with the parent-child relationship”); see also Brokaw v. Mercer Cnty., 235 F.3d 1000, 1017-18 (7th Cir.2000) (concluding that child’s substantive due process claim could not succeed to the extent it was premised on his removal from his home because the Fourth Amendment addressed that seizure).

concluding that a child's constitutional claim premised on his seizure is analyzed under the Fourth Amendment rather than substantive due process unless it is alleged that the seizure "coincided with other conduct amounting to an interference with the parent-child relationship"


Context: A suspect is "in custody" for purposes of Miranda "when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest."

adding that "the reasonable person through whom we view the situation must be neutral to the environment and to the purposes of the investigation--that is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances"

United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.1988) (en banc) (adding that “the reasonable person through whom we view the situation must be neutral to the environment and to the purposes of the investigation—that is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances"); see also Stansbury v. California, 511 U.S. 318, 324, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (“the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation”); United States v. Courtney, 463 F.3d 333, 337 (5th Cir.2006).

"the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation"


Context: Instead of asserting an inability to raise these claims in his initial SS 2255 motion, Mr. Jones argues that his current inability to assert the claims in a successive SS 2255 motion -- due to the one-year time-bar and the restrictions identified in SS 2255(h)-- demonstrates that the SS 2255 remedial regime is inadequate and ineffective to test the legality of his detention. But we have squarely rejected such arguments on multiple occasions.

"A district court's erroneous decision on a SS 2255 motion does not render the SS 2255 remedy inadequate or ineffective."

See Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999) (“[W]e agree with the district court that the mere fact [a prisoner] is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate.”); see also Prost, 636 F.3d at 588 (noting § 2255(h)’s limitation on filing second and successive § 2255 motions “doesn’t mean that the § 2255 remedial regime is inadequate or ineffective”); Sines, 609 F.3d at 1073 (“A district court’s erroneous decision on a § 2255 motion does not render the § 2255 remedy inadequate or ineffective.”); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“Failure to obtain relief under [§ ] 2255 does not establish that the remedy so provided is either inadequate or ineffective.” (internal quotation marks omitted)); United States v. O’Bryant, 162 F.3d 1175, 1998 WL 704673, at *2 (10th Cir. 1998) (unpublished) (“We agree with the district court that the fact [a prisoner] is barred by the one-year limitation period from asserting his claims pursuant to § 2255 does not establish that the remedy in § 2255 is ‘inadequate or ineffective to test the legality of his detention.’ ”) (quoting 28 U.S.C. § 2255(e)).

"[W]e agree with the district court that the mere fact [a prisoner] is precluded from filing a second SS 2255 petition does not establish that the remedy in SS 2255 is inadequate."


Context: Contrary to the Court's approach, the purposes of the Rule, not dictionary definitions, have guided courts in construing this term of art. For instance, the Court's assumption that "disclosure" does not occur when a party seeking to utilize information is already in legitimate possession of it is belied by "the well settled rule that a witness is not entitled to a copy of his grand jury testimony on demand, even though he obviously was present in the grand jury room during the receipt of evidence, since a rule of automatic access would expose grand jury witnesses to potential intimidation" by making it possible for those with power over the witness to monitor his or her testimony. Brief for United States 26, n. 20 (emphasis added).

treating as "disclosure" access of grand jury witness to own prior testimony, noting "policy reasons justifying strict preservation of the secrecy" of grand jury proceedings

See, e. g., United States v. Clavey, 565 F. 2d 111, 113-114 (CA7 1978) (treating as “disclosure” access of grand jury witness to own prior testimony, noting “policy reasons justifying strict preservation of the secrecy” of grand jury proceedings); Bast v. United States, 542 F. 2d 893, 895-896 (CA4 1976) (treating as “disclosure” access of grand jury witness to own prior testimony, noting that “the secrecy of grand jury proceedings encourages witnesses to testify without fear of retaliation and protects the independence of the grand jury”).

treating as "disclosure" access to grand jury material by a party familiar with such material by virtue of earlier Rule 6(e) disclosure order

Cf. Executive Securities Corp. v. Doe, 702 F. 2d 406, 408-409 (CA2 1983) (treating as “disclosure” access to grand jury material by a party familiar with such material by virtue of earlier Rule 6(e) disclosure order).


treating as "disclosure" access of grand jury witness to own prior testimony, noting that "the secrecy of grand jury proceedings encourages witnesses to testify without fear of retaliation and protects the independence of the grand jury"


Context: It is not at all clear whether there lies a private right of action under either rule.

broker's violations of New York Stock Exchange Rules can be remedied by state law actions for breach of contract and negligence

See Komanoff v. Mabon, Nugent & Co., 884 F.Supp. 848, 859-60 (S.D.N.Y.1995) (citing cases); Jaksich v. Thomson McKinnon Securities, Inc., 582 F.Supp. 485 (S.D.N.Y.1984) (no private right of action for violation of the stock exchange rules); but cf. Siedman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 465 F.Supp. 1233, 1236 (S.D.N.Y.1979) (broker’s violations of New York Stock Exchange Rules can be remedied by state law actions for breach of contract and negligence).


Context: Second, this Court has explained that Lopez is inapposite to convictions secured pursuant to section 844(i) and does not raise the government's evidentiary burden on the jurisdictional element of the offense.

'We hold that in light of the fact that, unlike the statute in Lopez, SS 844(i

See United States v. Melina, 101 F.3d 567, 573 (8th Cir.1996) (“we do not find Lopez’s analysis applicable due to the § 844(i)’s express jurisdictional element”); United States v. Flaherty, 76 F.3d 967, 973-74 (8th Cir.1996) (“The Lopez decision did not address the amount of evidence required to prove an explicit jurisdictional element of an offense and does not control this case.”); see also United States v. Tocco, 135 F.3d 116, 123-24 (2nd Cir.1998) (‘We hold that in light of the fact that, unlike the statute in Lopez, § 844(i) does contain a jurisdictional element, Lopez did not elevate the government’s burden in establishing jurisdiction in a federal arson prosecution.”); United States v. Hicks, 106 F.3d 187, 190 (7th Cir.1997) (“The regulated activity must have a substantial effect, but this requirement is a condition of the statute’s constitutionality ... rather than an element of the crime____”).

"we do not find Lopez's analysis applicable due to the SS 844(i


"The regulated activity must have a substantial effect, but this requirement is a condition of the statute's constitutionality ... rather than an element of the crime____"


"The Lopez decision did not address the amount of evidence required to prove an explicit jurisdictional element of an offense and does not control this case."


Context: Grace. Under Jackson, enforcement and interpretation of the warranty is a matter for . the state courts -- if the employees obtain a favorable award from the Department of Labor, they can enforce it only in the state forum.

"The union, of course, can pursue a contract action in state court"

Id. 457 U.S. at 29 n. 13, 102 S.Ct. at 2210 n. 13 (“The union, of course, can pursue a contract action in state court”).

"[Tjhere is no question but that there is a private cause of action for breach of a 13(c

See also Local Division 732, 667 F.2d at 1333 (“[Tjhere is no question but that there is a private cause of action for breach of a 13(c) agreement.


Context: Under Erie, this Court is now bound by the holdings in Martin and Jimmie Lee Brown on questions of Florida preclusion law as it pertains to Engle notwithstanding the Eleventh Circuit's decision in Bernice Brown II. That is, of course, unless doing so would violate Defendants' federal due process rights.

"State courts are generally free to develop their own rules for protecting against the relitigation of common issues or the piecemeal resolution of disputes. We have long held, however, that extreme applications of the doctrine of res judicata may be inconsistent with a federal right that is 'fundamental in character' "

See Salve Regina College v. Russell, 499 U.S. 225, 226, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (“Erie mandates that a federal court sitting in diversity apply the substantive law of the forum State, absent a federal statutory or constitutional directive to the contrary”); see also Richards, 517 U.S. at 797, 116 S.Ct. 1761 (“State courts are generally free to develop their own rules for protecting against the relitigation of common issues or the piecemeal resolution of disputes. We have long held, however, that extreme applications of the doctrine of res judicata may be inconsistent with a federal right that is ‘fundamental in character’ ”) (citations omitted).

"Erie mandates that a federal court sitting in diversity apply the substantive law of the forum State, absent a federal statutory or constitutional directive to the contrary"


Context: Because I believe the Board should never have reached the question of obviousness on this record, I do not analyze the majority's obviousness analysis in detail. I take issue, however, with the fact that the majority bases its judgment on grounds that differ from those upon which the Board relied. This Court may not stray from the Board's reasoning for purposes of supporting its judgment.

"[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency."

See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”); see also, In re Applied Materials, Inc., 692 F.3d 1289, 1294 (Fed.Cir.2012) (“The Board’s judgment must be reviewed on the grounds upon which the Board actually relied.”).

"The Board's judgment must be reviewed on the grounds upon which the Board actually relied."


Context: These courts reasoned that the Court of Criminal Appeals has analogously held that there is no constitutional right to effective assistance of counsel in a post-conviction habeas corpus proceeding, even though a statute provided for appointment of habeas counsel. A Chapter 64 proceeding itself, however, is not a post-conviction collateral attack.

Thacker, 177 S.W.3d at 927 (“Unlike a state application for writ of habeas corpus, a motion for DNA testing cannot, by itself, result in relief from a conviction or sentence.”); see also Baker, 185 S.W.3d at 894-97 (discussing that favorable result from DNA testing under Chapter 64 has no effect on conviction but may be used in a post-conviction habeas corpus).

"Unlike a state application for writ of habeas corpus, a motion for DNA testing cannot, by itself, result in relief from a conviction or sentence."


"Although these holdings were made in the context of post-conviction habeas corpus proceedings, they are equally applicable to a post-conviction request for forensic DNA testing under chapter 64, which is another form of collateral attack."

But see Beasley, 107 S.W.3d at 697 (“Although these holdings were made in the context of post-conviction habeas corpus proceedings, they are equally applicable to a post-conviction request for forensic DNA testing under chapter 64, which is another form of collateral attack.”).


Context: . We assume, without deciding, that possession of methamphetamine is a sufficiently "serious crime."

"the sale of illegal drugs is a sufficiently severe offense"

See United States v. Carr, 939 F.2d 1442, 1448 (10th Cir.1991) ("Drug trafficking crimes are serious ...”); United States v. Aquino, 836 F.2d 1268, 1273 (10th Cir.1988) ("the sale of illegal drugs is a sufficiently severe offense”); but see United States v. Carter, 360 F.3d 1235, 1242 (10th Cir.2004) ("the only crime for which there was probable cause was possession of a small quantity of marijuana, in all likelihood a misdemean- or, a crime that does not reach the level of a ‘serious crime’ required by Acquino ”).

"the only crime for which there was probable cause was possession of a small quantity of marijuana, in all likelihood a misdemean- or, a crime that does not reach the level of a 'serious crime' required by Acquino "


Context: But upon being asked when his wife tried to locate the doctor, Lin changed his testimony, stating several times that he "misspoke," and that his wife did not attempt to obtain a certificate, explaining that he thought he had been asked whether his wife had seen a doctor during her pregnancy, not whether she had tried to obtain a certificate verifying her abortion. The agency did not err in rejecting this explanation.

the agency may "rely on any inconsistency or omission in making an adverse credibility determination as long as the 'totality of the circumstances' establishes that an asylum applicant is not credible."

See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (the agency need not credit an applicant’s explanations for inconsistent testimony unless those explanations would compel a reasonable fact-finder to do so); see also Xiu Xia Lin, 534 F.3d at 167 (the agency may “rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.”).

the agency need not credit an applicant's explanations for inconsistent testimony unless those explanations would compel a reasonable fact-finder to do so


Context: The Board also stated that Mr. Arneson's statements were "not competent medical evidence." R. at 17. This is true. But if the Board found his testimony credible, Mr. Arneson would not need competent medical evidence to substantiate his claim.

holding that, per 38 C.F.R. SS 3.303(b), medical evidence of nexus is not required for benefits if the veteran demonstrates continuity of symptoms between his present disability and service

See Savage v. Gober, 10 Vet.App. 488, 495-96 (1997) (holding that, per 38 C.F.R. § 3.303(b), medical evidence of nexus is not required for benefits if the veteran demonstrates continuity of symptoms between his present disability and service); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009) (vacating this Court’s decision that “stated categorically that ‘a valid medical opinion’ was required to establish nexus, and that [a layperson] was ‘not competent’ to provide testimony as to nexus”). Finding Mr. Arneson’s testimony credible and yet assigning it little weight could very well reflect the fact that the credibility assessment was based, in part, on second-hand conveyance or record review, as opposed to personal assessment.

vacating this Court's decision that "stated categorically that 'a valid medical opinion' was required to establish nexus, and that [a layperson] was 'not competent' to provide testimony as to nexus"


Context: P 2. This court accepted jurisdiction over this appeal on a petition to bypass. Wis. Stat. SS (Rule) 809.60 (2013-14). We have previously stated that when a tie vote occurs in this court on a bypass or certification, "justice is better served in such an instance by remanding to the court of appeals for their consideration."

State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); see also State v. Elam, 195 Wis. 2d 683, 684-85, 538 N.W.2d 249 (1995) (restating rule but declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue).


Context: On the other hand, as many courts have noted, the policy statements cannot be viewed as equivalent to the Guidelines themselves.

"Whereas guidelines are binding on the courts, policy statements are merely advisory."

See, e.g., United States v. Lee, 957 F.2d 770, 772-73 (10th Cir.1992) (policy statements are “advisory”); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.) (“Whereas guidelines are binding on the courts, policy statements are merely advisory.”), cert. denied, — U.S. -, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991).

Sentencing Commission's commentary must be treated as something more than legislative history but less than Guidelines

Cf. United States v. Anderson, 942 F.2d 606, 609-14 (9th Cir.1991) (en banc) (Sentencing Commission’s commentary must be treated as something more than legislative history but less than Guidelines).


Context: Under the circumstances, we think that the prosecutor's questioning in this case approached the constitutional line, and likely crossed it. However, we need not decide definitively whether the Government's questions violated Doyle, because we will affirm the District Court's judgment even assuming that they did.

assuming for the sake of argument that a Doyle violation occurred where the "prosecutor's questions were sufficiently broad as to be construed as commentary on [the defendant's] failure to come forward with his alibi (1

See United States v. Rodriguez, 43 F.3d 117, 122 (5th Cir.1995) (assuming for the sake of argument that a Doyle violation occurred where the “prosecutor’s questions were sufficiently broad as to be construed as commentary on [the defendant’s] failure to come forward with his alibi (1) prior to arrest, (2) immediately after arrest and Miranda warnings ..., and (3) during the time period prior to trial but following his arrest”); cf. United States v. Balter, 91 F.3d 427, 440 (3d Cir.1996) (assuming arguendo that the prosecutor’s questions violated Doyle and proceeding to harmless-error analysis).

assuming arguendo that the prosecutor's questions violated Doyle and proceeding to harmless-error analysis


Context: A duty not to misappropriate the whiskey supplies existed, however, only if Plaintiff had a property right in those supplies, based on Plaintiffs own efforts in creating the Michael Collins specifications.

design features of building interior as designer's property until building sold

See, e.g., Astroworks, 257 F.Supp.2d at 619 (alleged proprietary and confidential idea as counterclaimant’s property); Demetriades v. Kaufmann, 698 F.Supp. 521, 527 (S.D.N.Y.1988) (design features of building interior as designer’s property until building sold); cf. Gen. Sec., Inc. v. APX Alarm Sec. Solutions, Inc., 647 F.Supp.2d 207, 213-14 (N.D.N.Y.2009) (noting no authority cited for proposition that prior acquisition of customers constitutes property right or commercial advantage).


Context: In short, we would be required to speculate as to how the trial court reached its $50,000 attorney fee award. Accordingly, we vacate and remand the supplemental judgment for attorney fees for the trial court to further explain the basis of its award.

See Nieth and Nieth, 199 Or App 330, 339-40, 111 P3d 746, adh’d to as clarified on recons, 200 Or App 582, 116 P3d 234 (2005) (vacating award of attorney fees because the trial court failed to identify which statutory factors supported its decision); cf. McCarthy, 327 Or at 188 n 1 (“If a petition seeks payment for 60 hours of attorney time at $200 per hour, and the court believes that some lesser award is appropriate, the court could state in its order that, relying on the factors in ORS 20.075(2)(a) and (g), the court concludes that a reasonable number of hours is 50 and a reasonable hourly rate is $175 per hour.

"If a petition seeks payment for 60 hours of attorney time at $200 per hour, and the court believes that some lesser award is appropriate, the court could state in its order that, relying on the factors in ORS 20.075(2


Context: Thus, that issue was not before the court. That decision is not, therefore, binding precedent on this issue.

"Contrary to [the defendant's] assertion, this court has not held that CaLPenal Code SS 211 is broader than the generic definition of robbery. Rather, in ServinAcosta, we simply explained that the government had conceded the point."

See Juarez-Galvan, 572 F.3d at 1161 (“Contrary to [the defendant’s] assertion, this court has not held that CaLPenal Code § 211 is broader than the generic definition of robbery. Rather, in ServinAcosta, we simply explained that the government had conceded the point.”); see also Romero, 491 F.3d at 1177 (“[S]tare decisis requires that we accord precedential value to [our prior decision] as to the particular issues that it actually decided.” (emphasis added)); United Food & Commercial Workers Union, Local 156b v. Albertson’s, Inc., 207 F.3d 1193, 1199-1200 (10th Cir.2000) (refusing to grant precedential weight to a jurisdictional question assumed, but not explicitly decided, by a prior panel, even though that jurisdictional issue was necessary to the holding in the prior case, and stating that “ ‘[i]n order for a decision to be given stare decisis effect with respect to a particular issue, that issue must have been actually decided by the court’ ” (quoting 18 James Wm. Moore, et ah, Moore’s Federal Practice § 134.04[5] (3d ed.1999))).

"[S]tare decisis requires that we accord precedential value to [our prior decision] as to the particular issues that it actually decided." (emphasis added


refusing to grant precedential weight to a jurisdictional question assumed, but not explicitly decided, by a prior panel, even though that jurisdictional issue was necessary to the holding in the prior case, and stating that " '[i]n order for a decision to be given stare decisis effect with respect to a particular issue, that issue must have been actually decided by the court' " (quoting 18 James Wm. Moore, et ah, Moore's Federal Practice SS 134.04[5] (3d ed.1999


Context: To invoke Tucker Act jurisdiction over a tax refund claim, however, a plaintiff must meet three jurisdictional prerequisites. First, a plaintiff must make full payment of the tax, penalties, and interest at issue under the so called "full payment rule."

See Shore v. United States, 9 F.3d 1524, 1527 (Fed.Cir.1993) (holding that the full payment rule is applicable to refund suits in the Court of Federal Claims); see also Flora v. United States, 362 U.S. 145, 163, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) (“[F]ull payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund[.]”).

"[F]ull payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund[.]"


Context: .Plaintiff' also cites to OSRAM's suit in Germany against Citizen, but this is not relevant because it was filed after January 18, 2005. Reasonable apprehension must exist at the time suit was filed.

holding that-jurisdiction depends on "the facts existing when the complaint is filed"

See Arrowhead, 846 F.2d at 736 (holding that-jurisdiction depends on “the facts existing when the complaint is filed”); Holley Performance Prods., Inc. v. Barry Grant, Inc., No. 04-5758, 2004 WL 3119017, at *4 (N.D.Ill.Dec.20, 2004) ("Grant's subsequent filing of an infringement suit is irrelevant to the reasonable apprehension prong because reasonable apprehension must be assessed as of the time Holley filed this complaint”); CAE Screenplates, Inc. v. Beloit Corp., 957 F.Supp. 784, 789-90 & nn. 16-17 (E.D.Va.1997).

"Although it is the situation at the time suit was filed that establishes the existence vel non of an actual controversy, subsequent events can reinforce the correctness of the conclusion."

But see BP Chemicals Ltd., 4 F.3d at 980 (“Although it is the situation at the time suit was filed that establishes the existence vel non of an actual controversy, subsequent events can reinforce the correctness of the conclusion.”) (citation omitted).


"Grant's subsequent filing of an infringement suit is irrelevant to the reasonable apprehension prong because reasonable apprehension must be assessed as of the time Holley filed this complaint"


Context: It must as a matter of equity, however, be recognized that much of the work performed, and to be performed, by PSC II on behalf of plaintiffs in the multi-district federal litigation will benefit state plaintiffs. This result is desirable. It will reduce the burden placed on the state-federal court structure by this mass litigation, and reduce unnecessary duplicitous work.

"The benefits achieved by consolidation and the appointment of general counsel, i.e. elimination of duplication and repetition and in effect the creation of a coordinator of diffuse plaintiffs through whom motions and discovery proceedings will be channeled, will most certainly redound to the benefit of all parties to the litigation."

See, e.g., MacAlister v. Guterma, 263 F.2d 65, 69 (2d Cir.1958) (“The benefits achieved by consolidation and the appointment of general counsel, i.e. elimination of duplication and repetition and in effect the creation of a coordinator of diffuse plaintiffs through whom motions and discovery proceedings will be channeled, will most certainly redound to the benefit of all parties to the litigation.”); see also In re Zyprexa Prods. Liab. Litig., No. 04-MD-01596, 2006 WL 898105, at *1 (E.D.N.Y. April 16, 2006) (“Coordination and cooperation between state and federal courts has been encouraged.”); In re Zyprexa Prods. Liab. Litig., No. 04-MD-01596, 2006 WL 197151 (E.D.N.Y.

"Coordination and cooperation between state and federal courts has been encouraged."


Context: Defense counsel's omission of a request for an instruction on the subject appears consistent with an all-or-nothing defense strategy in which the defendant's alibi played the leading role. The judge had no duty to undercut such a strategy by volunteering an instruction on a middle ground.

"[a] judge has no duty to undercut [defendant's all-or-nothing] strategy"

See Commonwealth v. Pagan, 35 Mass. App. Ct. 788, 791-792 (1994) (“[a] judge has no duty to undercut [defendant’s all-or-nothing] strategy”).

judge commits no error by respecting defendant's strategy to submit "all-or-nothing choice" to the jury

See also Commonwealth v. Roberts, 407 Mass. 731, 737-739 (1990) (judge commits no error by respecting defendant’s strategy to submit “all-or-nothing choice” to the jury).


Context: Under these circumstances, it is appropriate to consider whether the use of the same language in another statute aids in a determination of its scope in this one. We presume that when enacting new legislation, Congress is aware of similar language in old statutes, and chooses to repeat that language based on an understanding of relevant law interpreting it.

"Where the interpretation of a particular statute at issue is in doubt, the express language and legislative construction of another statute not strictly in pari materia but employing similar language and applying to similar persons, things, or cognate relationships may control by force of analogy."

See Stribling v. United States, 419 F.2d 1350, 1352-53 (8th Cir.1969) (“Where the interpretation of a particular statute at issue is in doubt, the express language and legislative construction of another statute not strictly in pari materia but employing similar language and applying to similar persons, things, or cognate relationships may control by force of analogy.”); accord Yuen v. Internal Revenue Service, 649 F.2d 163, 167 n. 4 (2d Cir.), cert. denied, 454 U.S. 1053, 102 S.Ct. 597, 70 L.Ed.2d 588 (1981); see also Overstreet v. North Shore Corp., 318 U.S. 125, 131-32, 63 S.Ct. 494, 498-99, 87 L.Ed. 656 (1943) (applying same scope to language used in statutes which although not strictly analogous, were similar).


Context: The fact that KPMG also probably knew it to be false is irrelevant for purposes of this penalty. Even if the statements that Mr. Bluin had independently reviewed the economics of the transaction and found them to be profitable were boilerplate, several other courts have found similar misrepresentations and omissions relevant in determining that reliance on a tax adviser was not reasonable.

See also Kerman v. Commissioner, 713 F.3d 849 (6th Cir.2013) (finding no reasonable reliance where taxpayer affirmed he reviewed economic substance of transactions when he had not).

See, e.g., Crispin, 708 F.3d at 519 (finding no reasonable reliance because Mr. Crispin represented to a law firm that provided him with a tax opinion (1) that he had a valid business purpose when he knew or should have known that representation was false; and (2) that no party had provided him any tax related promotional material to him prior to his entering into the transaction even though he had received such materials).


Context: Substantial evidence supports the BIA's determination that Reyes-Matul failed to establish past persecution or a well-founded fear of future persecution in Guatemala on account of a political opinion or imputed political opinion.

"[petitioner's] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground."

See Sangha v. INS, 103 F.3d 1482, 1490-91 (9th Cir. 1997) (record did not compel a finding that persecution occurred “on account of’ political beliefs absent sufficient direct or circumstantial evidence); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“[petitioner’s] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”) (internal citation omitted).

record did not compel a finding that persecution occurred "on account of' political beliefs absent sufficient direct or circumstantial evidence


Context: P 8. In contrast, we have not allowed compensation for losses that occur when traffic is only routed away from a business, as the owner of a business does not have a property right in the flow of traffic to the business.

"Benefits attached to the currents of public travel are not vested rights and so diversion of traffic does not furnish a ground for compensation."

See Howe v. State Highway Bd., 128 Vt. 278, 283, 187 A.2d 342, 345 (1963) (“Benefits attached to the currents of public travel are not vested rights and so diversion of traffic does not furnish a ground for compensation.”); see also Spear v. State Highway Bd., 122 Vt. 406, 408, 175 A.2d 511, 513 (1961) (stating that when a highway relocation project has resulted in the loss of business, “the legislature has never attempted to provide compensation____Our statute relates business loss to property taken, not to highway relocation.”).

stating that when a highway relocation project has resulted in the loss of business, "the legislature has never attempted to provide compensation____Our statute relates business loss to property taken, not to highway relocation."


Context: Furthermore, the ALJ assigned too much relative weight to the opinions provided by consultative examiner Dr. Hill, who only saw Plaintiff on one occasion; and the non-examining State Agency review consultant, who only reviewed Plaintiffs medical records, which were incomplete.

"[I]n evaluating a claimant's disability, a consulting physician's opinions or report should be given limited weight."

See Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir.1990) (“[I]n evaluating a claimant’s disability, a consulting physician’s opinions or report should be given limited weight.”) (citation omitted); see also Torres v. Bowen, 700 F.Supp. 1306, 1312 (S.D.N.Y.1988) (“[Cjonsultative exams are often brief, are generally performed without benefit or review of claimant’s medical history and, at best, only give a glimpse of the claimant on a single day.”).

"[Cjonsultative exams are often brief, are generally performed without benefit or review of claimant's medical history and, at best, only give a glimpse of the claimant on a single day."


Context: There is no rigid limit on the duration of a traffic stop. A traffic stop may continue as long as reasonable suspicion remains, provided that police act "diligently and reasonably."

"In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."

State v. Moffatt, 450 N.W.2d 116, 119 (Minn.1990) (stating that the reasonableness of the length of a traffic stop “depends on the facts and circumstances” and that “[s]ometimes a 20-minute detention will be too long, sometimes a detention of more than an hour will not be unreasonable”); see also United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) (“In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”).

stating that the reasonableness of the length of a traffic stop "depends on the facts and circumstances" and that "[s]ometimes a 20-minute detention will be too long, sometimes a detention of more than an hour will not be unreasonable"


Context: Further, as discussed above, prior art relevant to the obviousness inquiry is not strictly limited to the specific field of endeavor of the invention at issue, but extends to fields logically related to the general problem facing the inventor.

"Where an inventor is considering how to design a particular mechanism to fit a specific type of device, he 'would naturally look to references employing' other forms of that mechanism, even where they are found in different types of devices." (omitting citations and quotations

See In re ICON Health & Fitness, 496 F.3d at 1379-80 (citing In re Clay, 966 F.2d 656, 659 (Fed.Cir.1992); In re Kahn, 441 F.3d 977, 987 (Fed.Cir.2006); In re Paulsen, 30 F.3d 1475, 1481-82 (Fed.Cir.1994); Hitachi Koki Co., Ltd. v. Doll, 620 F.Supp.2d 4, 19-20 (D.D.C.2009) (“Where an inventor is considering how to design a particular mechanism to fit a specific type of device, he ‘would naturally look to references employing’ other forms of that mechanism, even where they are found in different types of devices.” (omitting citations and quotations)); cf. KSR, 550 U.S. at 420, 127 S.Ct. 1727 (“[F]amiliar items may have obvious uses beyond their primary purposes.”).

"[F]amiliar items may have obvious uses beyond their primary purposes."


Context: I reach a somewhat different conclusion as to Ms. Mendoza's claimed expenses. Although I find it inequitable and "clearly inappropriate" to award any attorney's fees, I note that the claim for expenses is far more reasonable and that awarding at least some expenses against Mr. Medina is not "clearly inappropriate," as a matter of equity. This is so, in part, because Mr. Medina's defense of this case also benefitted to some extent from Ms. Mendoza's translations of various documents; in part, because, even considering Mr. Medina's financial condition, awarding some share of Ms. Mendoza's expenses is consistent with the goals of Article 26 of the 1980 Hague Convention and 42 U.S.C. SS 11607(b)(3); and, in part, because Ms. Mendoza has some obligation to pay these expenses out-of-pocket, even if her legal representation was pro Bono.

finding an award of any attorney's fees "clearly inappropriate" because of respondent's inability "to shoulder the burden" of the "115,872.26 in attorney fees, copying costs, etc. that Petitioner's counsel is requesting," where respondent "has limited financial means and has found little gainful employment in the United States," and awarding the petitioner only his "out-of-pocket costs"

See Vale, 2008 WL 5273677 at *2 (finding an award of any attorney’s fees “clearly inappropriate” because of respondent’s inability “to shoulder the burden” of the “115,872.26 in attorney fees, copying costs, etc. that Petitioner’s counsel is requesting,” where respondent “has limited financial means and has found little gainful employment in the United States,” and awarding the petitioner only his “out-of-pocket costs”); cf. Rydder, 49 F.3d at 373-74 (reducing by almost half the claimed attorney’s fees awarded, but awarding all of the claimed expenses).

reducing by almost half the claimed attorney's fees awarded, but awarding all of the claimed expenses


Context: Given the information in the affidavit that established the defendant's decade-long history of using his place of residence as a base for his drug selling operation, it is reasonable to infer that he continued this well-established pattern of selling drugs from his residence when he moved into a motel on or about January 13, 2002. As the motion judge concluded, this inference is bolstered by the information in the affidavit that suggests that the defendant "left . . . that room to conduct his nefarious business, and returned to it shortly thereafter, establish[ing] a reasonable basis for believing that evidence of his crimes would be found in the room."

despite the lack of any direct evidence linking the defendant's residence to his drug selling activity at local bars, additional information supplied by State troopers regarding activity at the defendant's home -- e.g., brief visits to his home by numerous people, and observation of the defendant during two surveillances in which he was seen to go directly from his residence to the pub where he apparently engaged in drug transactions -- and the reasonable inferences that could be drawn therefrom were sufficient to establish probable cause

Compare Commonwealth v. O’Day, 440 Mass. at 302-304 (despite the lack of any direct evidence linking the defendant’s residence to his drug selling activity at local bars, additional information supplied by State troopers regarding activity at the defendant’s home — e.g., brief visits to his home by numerous people, and observation of the defendant during two surveillances in which he was seen to go directly from his residence to the pub where he apparently engaged in drug transactions — and the reasonable inferences that could be drawn therefrom were sufficient to establish probable cause).

no specific information in affidavit tying defendant's residence to illegal drug transactions

Contrast Commonwealth v. Olivares, 30 Mass. App. Ct. 596, 599-601 (1991) (no specific information in affidavit tying defendant’s residence to illegal drug transactions); Commonwealth v. Laughlin, 40 Mass. App. Ct. 926, 926-927 (1996) (affidavit established that defendant was a drug dealer, but did not connect drugs to his residence); Commonwealth v. Chongarlides, 52 Mass. App. Ct. 366, 370 (2001) (affidavit contained no evidence that the defendant had ever kept drugs at his residence).


affidavit established that defendant was a drug dealer, but did not connect drugs to his residence


affidavit contained no evidence that the defendant had ever kept drugs at his residence


Context: The Workers' Compensation Law creates a system in which employees can recover benefits for their injuries arising out of and in the course of employment without regard to fault. See Tenn.Code Ann. SS 50-6-103(a) (2008). There are, however, some circumstances in which an employee cannot recover for injuries that would otherwise be compensable. In this instance, the Employer contends that the trial court erred by awarding benefits because claims of this nature are barred by Tennessee Code Annotated section 50-6-110(a), which provided, at the time of the accident, in pertinent part: "No compensation shall be allowed for an injury or death due to the employee's willful misconduct or intentional self-inflicted injury, due to intoxication or illegal drug usage, or willful failure or refusal to use a safety appliance or perform a duty required by law." The bur den of proof is on the employer to demonstrate that the willful misconduct or the willful failure to use a safety appliance was the proximate cause of the injuries.

stating, in the context of the same workers' compensation provision, that when a statute uses the language "due to," this refers to proximate cause

Tenn. Code Ann. § 50 — 6—110(b); Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 542 (1959) (explaining that the employer must “show that the injury was due to the willful misconduct of the employee”); see also Overall v. S. Subaru Star, Inc., 545 S.W.2d 1, 4 (Tenn.1976) (stating, in the context of the same workers’ compensation provision, that when a statute uses the language “due to,” this refers to proximate cause).

explaining that the employer must "show that the injury was due to the willful misconduct of the employee"


Context: The defendants attached a copy of the Release to their motion to dismiss, but the plaintiffs had not referred to the Release in their complaint. A motion to dismiss relying on a paper outside the pleadings is generally permissible only where the complaint refers to that paper.

permitting papers submitted with motion to dismiss to be considered part of pleadings "if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim"

Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (recognizing dismissal as proper when based on "those exhibits submitted by [a] defendant which can properly be considered as incorporated by reference into the complaint”); see also City of Monroe Employees Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 659 n. 6 (6th Cir.2005) (permitting papers submitted with motion to dismiss to be considered part of pleadings "if they are referred to in the plaintiff’s complaint and are central to the plaintiff’s claim”) (citation omitted).

recognizing dismissal as proper when based on "those exhibits submitted by [a] defendant which can properly be considered as incorporated by reference into the complaint"


Context: Furthermore, we reject the state's alternative claim that, by signing the agreement, the defendant waived any objection to subject matter jurisdiction. A criminal defendant may not waive the statutory limits on the court's subject matter jurisdiction in a plea agreement.

"no party can waive a defect in the court's subject matter jurisdiction"

See State v. Vincent, 194 Conn. 198, 203 n.7, 479 A.2d 237 (1984) (“no party can waive a defect in the court’s subject matter jurisdiction”); see also State v. Jones, supra, 166 Conn. 627 (jurisdiction “is a matter of law and can neither be waived nor conferred by consent of the accused”).

jurisdiction "is a matter of law and can neither be waived nor conferred by consent of the accused"


Context: Because a defendant does not have an absolute right to insist on introduction of the whole of a confession or admission merely because a part has been introduced by the State, it follows that determining whether omitted portions of a confession or admission will yield distortion or exclude material that is substantially exculpatory to the portions introduced by the State remains a matter left to the discretion of the trial court.

holding that when danger of distortion or exclusions of substantially exculpatory information is not present "it is not an abuse of discretion to fail to require the production of the remainder [of the statement]"

Collier, 892 S.W.2d at 695-96 (holding that when danger of distortion or exclusions of substantially exculpatory information is not present “it is not an abuse of discretion to fail to require the production of the remainder [of the statement]”) (quoting 23 C.J.S. Criminal Law section 885); see also State v. Silvers, 735 S.W.2d 393, 397 (Mo. App. S.D. 1987) (“What may be considered reasonably separable [from the whole of a conversation or statement] is left to the sound discretion of the trial court.”) (citing State v. Brown, 584 S.W.2d 413, 415 (Mo. App. E.D. 1979)).

"What may be considered reasonably separable [from the whole of a conversation or statement] is left to the sound discretion of the trial court."


Context: Thus, our courts have safeguarded an individual's constitutional guaranty of due process by applying the scope of review under K.S.A. 60-2101(d).

affirming district court's conclusion the Commission's decision was not supported by substantial competent evidence and Commission had denied teacher's right to due process

See Unruh v. U.S.D. No. 300, 245 Kan. 35, 43, 775 P.2d 171 (1989) (upholding district court’s conclusion the Commission acted arbitrarily and capriciously, resulting in denial of due process); see also Haddock, 233 Kan. at 69, 77-78 (affirming district court’s conclusion the Commission’s decision was not supported by substantial competent evidence and Commission had denied teacher’s right to due process).

upholding district court's conclusion the Commission acted arbitrarily and capriciously, resulting in denial of due process


Context: The district court had no subject matter jurisdiction to enter that order. We therefore direct the district court to ensure the money's return to Mr. Anglezis.

"[T]he power is inherent in every court, while the subject of controversy is in its custody, and the parties are before it, to undo what it had no authority to do originally, and in which it, therefore, acted erroneously, and to restore, so far as possible, the parties to their former position."

See Nw. Fuel Co. v. Brock, 139 U.S. 216, 219, 11 S.Ct. 523, 35 L.Ed. 151 (1891) (“[T]he power is inherent in every court, while the subject of controversy is in its custody, and the parties are before it, to undo what it had no authority to do originally, and in which it, therefore, acted erroneously, and to restore, so far as possible, the parties to their former position.”); see also In re Graziadei, 32 F.3d 1408, 1411 (9th Cir.1994) (ordering restitution of funds paid by bankruptcy court lacking subject matter jurisdiction); Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir. 1985) (affirming order of restitution for void judgment under Fed.R.Civ.P. 60(b)(4)).


Context: The reduction of an SVP's access level is similar to the transfer of prisoners from the general prison population to administrative segregation. Such a transfer may deprive the prisoner of a state-created liberty interest.

holding that a state-created liberty interest in one's classification may exist where classification imposes "atypical and significant hardship"

See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that a state-created liberty interest in one’s classification may exist where classification imposes “atypical and significant hardship”); see also Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.1994) (holding that a prison inmate was deprived of liberty and property because he was reclassified thereby losing certain privileges).


See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that a state-created liberty interest in one’s classification may exist where classification imposes “atypical and significant hardship”); see also Barnett v. Centoni 31 F.3d 813, 815-16 (9th Cir.1994) (holding that a prison inmate was deprived of liberty and property because he was reclassified thereby losing certain privileges).


Context: Although this fact was not brought to the Court's attention until the plaintiffs moved for reconsideration, see Pis.' Mot. Reconsideration at 4 (acknowledging that the plaintiffs may have caused "confusion" by "not provid[ing] details about the HAP members' precise immigration status" earlier in the litigation), it is now clear that these members, as lawful permanent residents, fall within SS 1188(a)(1)'s zone of interests. Under Mendoza, HAP members also meet the requirements for Article III standing.

"An organization has associational standing to bring suit on its members' behalf when: (1

See Sierra Club v. FERC, 827 F.3d 59, 65 (D.C. Cir. 2016) (“An organization has associational standing to bring suit on its members’ behalf when: (1) at least one of its members would have standing to sue in his or her own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”) (internal quotation marks omitted); see also Hispanic Affairs Project, 206 F.Supp.3d at 369 n.8, 2016 WL 4734360 at *14 n.8 (explaining that HAP had met the requirements for associational standing except that it had not “provid[ed] the necessary information regarding whether any of its members are American workers”).

explaining that HAP had met the requirements for associational standing except that it had not "provid[ed] the necessary information regarding whether any of its members are American workers"


Context: An open question, and one which occupies the bulk of the parties' briefs is whether such work-product protection extends to the present case. Yet, it is unnecessary to resolve this issue because we conclude, for the reasons stated above, that the district court's order does not constitute an abuse of discretion in any event.

"Even when based on a conclusory statement of cause, discovery orders ... are rarely reversed for an abuse of discretion."

See Sanders, 678 F.2d at 618 (“A trial court enjoys wide discretion in determining the scope and effect of discovery ... [i]t is, in fact, unusual to find an abuse of discretion in discovery matters.”); see also Scott, 868 F.2d at 792 (“Even when based on a conclusory statement of cause, discovery orders ... are rarely reversed for an abuse of discretion.”). The protective order permits inquiry into the employment-related matters at issue in Crosswhite’s complaint and excludes only privileged materials or those that are unrelated to his employment and would provide an undue advantage to related adversaries of LIC in an unrelated case.

"A trial court enjoys wide discretion in determining the scope and effect of discovery ... [i]t is, in fact, unusual to find an abuse of discretion in discovery matters."


Context: Here, Mounts's agreement provides that it is "binding on you unless you close your account with .30 days after receiving the card and you have not used or authorized use of the card" [Doc. 14-1 p. 16]. Mounts used the Citi Account by making purchases on the account after it was opened, and he continued to do so after receiving the 2010 agreement [Id at 5, 21-64]. These circumstances satisfy the criteria set forth in SS 54-11-9 for the formation of a credit card agreement.

"Under South Dakota law, because [the plaintiff] used both cards after receiving the cardmember agreements, she assented to the arbitration agreements .... "

See Cayanan v. Citi Holdings, Inc., 928 F.Supp.2d 1182, 1199 (S.D. Cal. 2013) (“Under South Dakota law, because [the plaintiff] used both cards after receiving the cardmember agreements, she assented to the arbitration agreements .... ”); see also Ackerberg v. Citicorp USA, Inc., 898 F.Supp.2d 1172, 1176 (N.D. Cal. 2012) (“Numerous courts have found that continued use or failure to opt out of a card account after the issuer provides a change in terms, including an arbitration agreement, evidences the cardholder’s acceptance of those terms.”).

"Numerous courts have found that continued use or failure to opt out of a card account after the issuer provides a change in terms, including an arbitration agreement, evidences the cardholder's acceptance of those terms."


Context: A separate group of courts have concluded that such an option may be exercised within a reasonable time after the expiration of the lease.

recognizing that a lessee's holding over, without giving the prescribed notice of renewal, gave rise to a presumption that the lessee was exercising the option to renew, but also recognizing that in such a situation the lessor could elect to treat the lessee as a trespasser or to waive the notice requirement and treat the lease as having been extended.

Cf. Coulter v. Capitol Fin. Co., 266 N.C. 214, 146 S.E.2d 97, 100 (1966) (recognizing that a lessee’s holding over, without giving the prescribed notice of renewal, gave rise to a presumption that the lessee was exercising the option to renew, but also recognizing that in such a situation the lessor could elect to treat the lessee as a trespasser or to waive the notice requirement and treat the lease as having been extended.)

holding that an option to renew at the expiration of the original lease was effectively exercised because the lessee's holding over, without express notification of renewal, was deemed an election to renew the lease

See Maddox v. Hobbie, 228 Ala. 80, 152 So. 222, 224-25 (1934) (holding that an option to renew at the expiration of the original lease was effectively exercised because the lessee’s holding over, without express notification of renewal, was deemed an election to renew the lease); Heritage Square Invs. v. Trouard, 406 So.2d 309, 311-12 (La.Ct.App.1981) (acknowledging that if a lease does not expressly designate a time frame for renewal, the lessee must exercise the option within a time which, under all the circumstances, the lessor intended to give the lessee to communicate the intent to renew); Kearney v. Hare, 265 N.C. 570, 144 S.E.2d 636, 639 (1965) (stating that with a lease containing a renewal option that did not require specific notice from the lessee, a presumption existed that the option was exercised where the lessee held over after the original term and continued to pay rent); Caito v. Ferri, 44 R.I. 261, 116 A. 897 (1922) (recognizing that a lease providing for renewal at the “termination” of the lease did not require the lessee to exercise the option before the lease expired, nor did it require renewal at the precise hour of termination, but gave the lessee “a reasonable time after the termination of the lease in which to make his election”).


acknowledging that if a lease does not expressly designate a time frame for renewal, the lessee must exercise the option within a time which, under all the circumstances, the lessor intended to give the lessee to communicate the intent to renew


stating that with a lease containing a renewal option that did not require specific notice from the lessee, a presumption existed that the option was exercised where the lessee held over after the original term and continued to pay rent


recognizing that a lease providing for renewal at the "termination" of the lease did not require the lessee to exercise the option before the lease expired, nor did it require renewal at the precise hour of termination, but gave the lessee "a reasonable time after the termination of the lease in which to make his election"


Context: In this case, no one other than Deatherage was between the owners and the workers. The owners very rarely went to the job sites so if Deatherage was not a supervisor, the workers would be almost completely unsupervised.

Cf. NLRB v. Gary Aircraft Corp., 368 F.2d 223 (5th Cir. 1966), cert. denied 387 U.S. 918, 87 S.Ct. 2032, 18 L.Ed.2d 971 (1967) (noting that if six leadmen were not supervisors, then 60 employees would be without supervision 80% of the time).

affirming the Board finding of supervisory status and noting "that if the petitioners were not supervisors, the company's employees were entirely without supervision a large part of the time"

See Vega v. NLRB, 341 F.2d 576, 577 (1st Cir.), cert. denied 382 U.S. 862, 86 S.Ct. 123,15 L.Ed.2d 100 (1969) (affirming the Board finding of supervisory status and noting “that if the petitioners were not supervisors, the company’s employees were entirely without supervision a large part of the time”).