Context: "The law is clear that, in order to be entitled to an evidentiary hearing, a petitioner need only allege-not prove-reasonably specific, non-conclusory facts that, if true, would entitle him to relief." Id. at 715 n. 6 (emphasis in original). "A hearing is not required on patently frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing required where the petitioner's allegations are affirmatively contradicted in the record."

holding that district court was not required to hold an evidentiary hearing based on SS 2255 petitioner's mere eonclusory allegations in his affidavit

Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.1989) (citation omitted) (remanding for evidentiary hearing on ineffective assistance of counsel claim that counsel failed to inform appellant of statutory parole consequences before entering a guilty plea because record did not conclusively show that appellant was entitled to no relief); see also Lynn v. United States, 365 F.3d 1225, 1238-39 (11th Cir.2004) (holding that district court was not required to hold an evidentiary hearing based on § 2255 petitioner’s mere eonclusory allegations in his affidavit); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) (stating that a 28 U.S.C. § 2254 petitioner is not entitled to an evidentiary hearing if his claims “are merely conelusory allegations unsupported by specifics or contentions that in the face of the record are wholly incredible”) (citations and internal quotations omitted).


Context: As noted, Supervisor and Attorney both observed that LaMont smelled like alcohol, that his eyes were bloodshot and his face puffy, that his speech was slow, and that he appeared agitated. These circumstances, taken together, have been held to constitute reasonable articulable suspicion in the criminal context.

holding that "the smell of alcohol emanating from [the defendant's vehicle] was enough to generate" reasonable suspicion

See, e.g., State v. Perkins, 2009 UT App 390, ¶ 14, 222 P.3d 1198 (concluding that officers had reasonable suspicion where the defendant exhibited “red eyes and slurred speech, was slow to respond ... and stumbled upon leaving the vehicle”); see also State v. Morris, 2011 UT 40, ¶ 27, 259 P.3d 116 (holding that “the smell of alcohol emanating from [the defendant’s vehicle] was enough to generate” reasonable suspicion).

concluding that officers had reasonable suspicion where the defendant exhibited "red eyes and slurred speech, was slow to respond ... and stumbled upon leaving the vehicle"


Context: (Emphasis added.) The JNOV issues, which related to the sufficiency of the evidence as a matter of law to establish common law negligence and negligence per se, simply were not a basis for the relief granted by Judge Wimberly.

"[W]hen construing orders and judgments, effect must be given to that which is clearly implied, as well as to that which is expressly stated."

See MacLean § 50:5 author’s cmts. (“The trial court must first decide whether to grant the motion-for judgment in accordance with the motion for a directed verdict, then whether to grant a new trial .... ” (emphasis added)); Bluff City Buiclc Co. v. Davis, 204 Tenn. 593, 323 S.W.2d 1, 4 (1959) (“In logic and reason [the motion for a JNOV] should be made before the motion for a new trial.”); see also Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595, 608 (Tenn.2013) (“[W]hen construing orders and judgments, effect must be given to that which is clearly implied, as well as to that which is expressly stated.”).

"A ... motion for directed verdict provides a vehicle for deciding questions of law. The question presented is whether the plaintiff has presented sufficient evidence to create an issue of fact for the jury to decide."

See Burton v. Wairen Farmers Coop., 129 S.W.3d 513, 520 (Tenn. Ct.App.2002) (“A ... motion for directed verdict provides a vehicle for deciding questions of law. The question presented is whether the plaintiff has presented sufficient evidence to create an issue of fact for the jury to decide.”). By declining to grant a JNOV and instead granting a new trial, Judge Wimberly implicitly, if not clearly, rejected the insufficiency of the evidence as a basis for directing a verdict in favor of the Defendant.


"In logic and reason [the motion for a JNOV] should be made before the motion for a new trial."


Context: It is ' reasonable under the Fourth Amendment for a police officer to stop an automobile and to detain the driver of that automobile to check his or her license and registration where "there is at least articulable and reasonable suspicion that" the driver "is unlicensed or the automobile is not registered."

Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (holding only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at unbridled discretion of police officers); see also Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (no question that initially stopping respondent who was driving automobile with expired license tags in violation of state law was proper); Miguel, 368 F.3d at 1152-54 (police officers had reasonable suspicion to stop vehicle due to factually erroneous but reasonable and good faith belief registration had expired based on expiration date in computer database).


police officers had reasonable suspicion to stop vehicle due to factually erroneous but reasonable and good faith belief registration had expired based on expiration date in computer database


Context: According to Mr. Soto-Robledo, these factors deserved greater weight. But the district court has the discretion to balance mitigating factors, such as cultural assimilation.

See United States v. Galarza-Payan, 441 F.3d 885, 889-90 (10th Cir.2006) (holding that a 57-month sentence for illegal reentry was substantively reasonable, rejecting the defendant’s effort to rebut the presumption of reasonableness based on evidence of cultural assimilation); see also Alvarez-Bernabe, 626 F.3d at 1167 (holding that a 57-month sentence for illegal reentry was substantively reasonable).

holding that a 57-month sentence for illegal reentry was substantively reasonable, rejecting the defendant's effort to rebut the presumption of reasonableness based on evidence of cultural assimilation


Context: . The government acknowledges that the district judge failed to specifically indicate what testimony of Casanova it found to be false, but contends that it was clear that the district judge was referring to Casanova's testimony that he was not aware that Jones was a convicted felon. The district judge's statement that, "I don't have any doubt that there was falsehood testified from the stand" was sufficient.

resentencing required where district court failed to make an independent factual finding that the defendant had committed perjury in his trial testimony and based the obstruction of justice adjustment entirely upon jury's verdict which did not establish that the defendant had lied

See United States v. Davis, 938 F.2d 744, 747 (7th Cir.1991) (district judge’s finding that the defendant "attempted to mislead the jury as to his knowledge and participation” in the crime was sufficient finding that defendant was less than truthful during his trial testimony); United States v. Contreras, 937 F.2d 1191, 1194 n. 2 (7th Cir.1991) (district court’s finding that defendant was "not truthful on the witness stand” was sufficient); see also United States v. Lozoya-Morales, 931 F.2d 1216, 1218-19 (7th Cir.1991) (resentencing required where district court failed to make an independent factual finding that the defendant had committed perjury in his trial testimony and based the obstruction of justice adjustment entirely upon jury’s verdict which did not establish that the defendant had lied).

district judge's finding that the defendant "attempted to mislead the jury as to his knowledge and participation" in the crime was sufficient finding that defendant was less than truthful during his trial testimony


district court's finding that defendant was "not truthful on the witness stand" was sufficient


Context: But while the Legislature may have -- given that an interlocutory appeal by the government in a criminal case is not an everyday occurrence -- intended for the Attorney General to decide whether to take an appeal, this does not mean that the Attorney General must personally sign the section 33(d)(2) certification. The Legislature has expressly authorized the Attorney General to delegate duties to Assistant Attorneys General.

"Defendants' contention that the Assistant United States Attorney in charge of the prosecution cannot be delegated authority by the United States Attorney to file the certificate lacks merit."

See United States v. Kleve, 465 F.2d 187, 190 (8th Cir. 1972) (“Defendants’ contention that the Assistant United States Attorney in charge of the prosecution cannot be delegated authority by the United States Attorney to file the certificate lacks merit.”) (interpreting 18 U.S.C. § 3731); see also United States v. Jackson, 544 F.3d 1176, 1184 (11th Cir. 2008) (holding that Assistant United States Attorney may file information requesting sentence enhancement based on prior conviction even though statute says that information must be filed by “the United States attorney”); United States v. Hawthorne, 235 F.3d 400, 404 (8th Cir. 2000) (same); Ryan v. Comm’r, 568 F.2d 531, 540 (7th Cir. 1977) (“[T]he statute has no requirement that the United States Attorney, rather than one of his assistants, personally sign the petition, although the statute does require that the United States Attorney must make the request.

holding that Assistant United States Attorney may file information requesting sentence enhancement based on prior conviction even though statute says that information must be filed by "the United States attorney"


Context: In order to establish that the privilege had been waived, NDC would have to demonstrate that AGG's attorneys revealed confidential client information in the course of their conversations with third parties. Upon such a showing, the Court would still retain discretion to determine whether any disclosures constituted partial waiver or whether it would be appropriate to impose full waiver as to all communications on the same subject matter.

distinguishing between clients' "mere[ ] disclos[ure]" of privileged communication and their "making some use of it," the latter seemingly justifying the imposition of full waiver

See Jones, 696 F.2d at 1072 (distinguishing between clients’ “mere[ ] disclos[ure]” of privileged communication and their “making some use of it,” the latter seemingly justifying the imposition of full waiver); see also United States ex. rel. Mayman v. Martin Marietta Corp., 886 F.Supp. 1243, 1252-53 (D.Md.1995) (applying subject matter waiver to hold that the defendant company waived attorney-client privilege as to in-house legal memoranda when the company disclosed otherwise confidential advice on the same matter to the government).


Context: In disputes concerning military decisions, the plaintiff must "overcome the strong, but re-buttable, presumption that administrators of the military, like other public officers, discharge them duties correctly, lawfully, and in good faith." This presumption, however, is not insurmountable.

invalidating military decision to discharge, in part because of the military's failure to follow published procedures.

See Doe, 132 F.3d at 1437 (holding that the plaintiff overcame the arbitrary and capricious standard in a military discharge case, where the relevant administrative board considered hearsay evidence without allowing the plaintiff rebuttal); see also Conn v. United States, 376 F.2d 878, 882 (Ct.Cl.1967) (invalidating military decision to discharge, in part because of the military’s failure to follow published procedures.); Murphy, 993 F.2d at 873 (“When the military is given unlimited discretion by Congress, [in personnel matters] it is nevertheless bound to follow its own procedural regulations if it chooses to implement some.”).


"When the military is given unlimited discretion by Congress, [in personnel matters] it is nevertheless bound to follow its own procedural regulations if it chooses to implement some."


Context: Our ruling in Denno was based on a theme reiterated through much of our caselaw- -- in assessing whether a governmental decision maker is a final policy maker, we look to whether there is an actual "opportunity" for "meaningful" review.

"An official must have discretion in a particular area of law in order to exercise final policymaking authority in that area -and may not be subject to significant review"

See Oladeinde v. City of Birmingham, 230 F.3d 1275, 1295 (11th Cir.2000) (emphasizing that there must be an actual “opportunity” for “meaningful administrative review” before we conclude that a governmental decision maker lacks final policymaking authority); Scala, 116 F.3d at 1401 (“Final policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review.”) (emphasis added); see also Grech v. Clayton Cty., 335 F.3d 1326, 1351 (11th Cir.2003) (Barkett, J., concurring) (“An official must have discretion in a particular area of law in order to exercise final policymaking authority in that area -and may not be subject to significant review”) (emphasis added); Bowen v. Watkins, 669 F.2d 979 (5th Cir.1982) (“If a higher official has the power to overrule a decision but as a practical matter never does so, the decision maker may represent the effective final authority,on the question.”).

emphasizing that there must be an actual "opportunity" for "meaningful administrative review" before we conclude that a governmental decision maker lacks final policymaking authority


"If a higher official has the power to overrule a decision but as a practical matter never does so, the decision maker may represent the effective final authority,on the question."


"Final policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review."


Context: Turning to Carmody's second theory on the pre-termination process, the later-added charge for failure to report a security breach, we also agree with Car-mody at the pleadings stage that this charge may have been sufficiently distinct from the original charges that he did not receive fair notice before the July 28 meeting that he faced this charge. Relying on a new charge without providing a meaningful opportunity to respond violates due process.

"Procedural due process guarantees are not met if the employee has notice only of certain charges or portions of the evidence and the deciding official considers new and material information."

Sée Staples v. City of Milwaukee, 142 F.3d 383, 384, 387 (7th Cir.1998) (reversing grant of summary judgment for employer because employee was informed of one grievance before a pre-termination meeting but not another and arguably had no meaningful opportunity to respond to new charge); Peery v. Brakke, 826 F.2d 740, 743-44 (8th Cir.1987) (reversing judgment notwithstanding the verdict for employer because employee had notice of only some charges against him and was not “given any opportunity to respond to the new charges before being fired”); see also Stone v. FDIC, 179 F.3d 1368, 1376 (Fed.Cir.1999) (“Procedural due process guarantees are not met if the employee has notice only of certain charges or portions of the evidence and the deciding official considers new and material information.”).


reversing judgment notwithstanding the verdict for employer because employee had notice of only some charges against him and was not "given any opportunity to respond to the new charges before being fired"


Context: Once the decision is made to modify or reverse an in limine ruling, the trial court must take such measures necessary and appropriate to prevent prejudice which might result from such action.

finding no abuse of discretion where the trial court reversed its original in limine ruling in part because "the trial court made a conscientious effort to minimize any surprise or potential prejudice by offering to rule before plaintiffs presented their case and by giving them the opportunity to reopen their ease after the ruling (reversing the original determination]" (emphasis added

See Marshall v. Osborn, 213 Ill.App.3d 134, 156 Ill.Dec. 708, 571 N.E.2d 492, 496 (1991) (finding no abuse of discretion where the trial court reversed its original in limine ruling in part because “the trial court made a conscientious effort to minimize any surprise or potential prejudice by offering to rule before plaintiffs presented their case and by giving them the opportunity to reopen their ease after the ruling (reversing the original determination]” (emphasis added)); cf. Swietlowich v. Bucks County, 610 F.2d 1157, 1164 (3d Cir.1979) (explaining that a trial judge who “decides to change ... an earlier ruling ... must also take appropriate steps so that the parties are not prejudiced by reliance on the prior ruling” and finding that “the plaintiff suffered no prejudice at trial ... since she was fully prepared to meet the limitations defense” (emphases added)); State v. Dowsett, 10 Haw.App. 491, 495, 878 P.2d 739, 742 (1994) (“We hold, therefore, that before the court orders dismissal of a case because of the State’s violation of HRPP Rule 16, it must consider whether less severe measures would rectify prejudice caused to the defendant by the violation.”), overruled on other grounds by State v. Rogan, 91 Hawai'i 405, 423, n. 10, 984 P.2d 1231, 1249 n. 10 (1999).

explaining that a trial judge who "decides to change ... an earlier ruling ... must also take appropriate steps so that the parties are not prejudiced by reliance on the prior ruling" and finding that "the plaintiff suffered no prejudice at trial ... since she was fully prepared to meet the limitations defense" (emphases added


"We hold, therefore, that before the court orders dismissal of a case because of the State's violation of HRPP Rule 16, it must consider whether less severe measures would rectify prejudice caused to the defendant by the violation."


Context: York maintains that "stronger instructions were called for." However, general instructions to disregard have been found sufficient to cure any error arising from jury arguments.

instruction to "Disregard the last statement" was sufficient to cure any error in the State's jury argument

See Jenkins v. State, 912 S.W.2d 793, 819-20 (Tex.Crim.App.1995) (“The jury is so instructed” was sufficient to cure any error in the State’s jury argument); see also Johnson v. State, 871 S.W.2d 188, 191-92 (Tex.Crim.App.1993) (instruction to “Disregard the last statement” was sufficient to cure any error in the State’s jury argument); Dukes v. State, 289 S.W.3d 444, 451 (Tex.App.-Dallas 2007, pet. refd) (defendant complained that instruction to “[disregard that last statement” was “ ‘very generic,’ did not instruct the jury that the argument was improper, and did not instruct the jury not to consider the improper argument for any purpose,” but defendant had “requested no such instruction,” merely asking that the jury “be instructed to disregard it”).

"The jury is so instructed" was sufficient to cure any error in the State's jury argument


defendant complained that instruction to "[disregard that last statement" was " 'very generic,' did not instruct the jury that the argument was improper, and did not instruct the jury not to consider the improper argument for any purpose," but defendant had "requested no such instruction," merely asking that the jury "be instructed to disregard it"


Context: So it's very material in this case, lying to this Court under oath, about if he knew Shoo Boo." As this passage suggests, the most plausible reason for Brown to lie about knowing Shoo Boo was to try to avoid the obstruction of justice enhancement sought by the government, a different theory than the one ultimately adopted by the district court itself.

"[Ljying for the purpose of obtaining a lighter sentence constitutes obstruction of justice within the meaning of section 3C1.1."

See United States v. Flores, 959 F.2d 83, 87 (8th Cir. 1992) (“[Ljying for the purpose of obtaining a lighter sentence constitutes obstruction of justice within the meaning of section 3C1.1.”) (citations omitted); see also United States v. Kessler, 321 F.3d 699, 703 (8th Cir.2003) (“We have affirmed a district court’s finding of perjury and subsequent application of sentence enhancements for obstruction of justice where the perjured testimony directly contravened testimony of other witnesses ....”) (citations omitted).

"We have affirmed a district court's finding of perjury and subsequent application of sentence enhancements for obstruction of justice where the perjured testimony directly contravened testimony of other witnesses ...."


Context: The Eighth Circuit recently provided the following additional instruction for identifying a discretionary function: "Cases in this circuit have consistently held that the FTCA applies to decisions by federal agencies at the 'operational' level, whereas decisions or omissions on the 'policy or planning' level are exempt under the statute's discretionary function exception."

agency approval of plans for bridge was discretionary act when the government's sole concern was insuring a navigable waterway

Gleason v. United States, 857 F.2d 1208, 1209 (8th Cir.1988) (agency approval of plans for bridge was discretionary act when the government’s sole concern was insuring a navigable waterway); see also E. Ritter & Co. v. Department of the Army, 874 F.2d 1236, 1240-42 (8th Cir.1989) (failure to maintain flood control ditch was ministerial and operational, not policy judgment); Jurzec v. American Motors Corp., 856 F.2d 1116 (8th Cir.1988) (sufficiency of warning to purchasers of used jeeps was within agency’s discretionary function); Bacon v. United States, 810 F.2d 827 (8th Cir.1987) (agency decision not to warn plaintiffs of dioxin contamination was within agency discretionary function); Mandel v. United States, 793 F.2d 964 (8th Cir.1986) (agency failure to comply with its own safety regulations was not within discretionary function); Aslakson v. United States, 790 F.2d 688 (8th Cir.1986) (agency failure to comply with safety regulations it had adopted was not within discretionary function); McMichael v. United States, 751 F.2d 303 (8th Cir.1985) (agency failure to enforce safety regulations contained in contract with contractor was not within discretionary function); see generally Trevino v. General Dynamics Corp., 865 F.2d 1474, 1483-86 (5th Cir.1989) (thorough review of discretionary function exception).


sufficiency of warning to purchasers of used jeeps was within agency's discretionary function


agency decision not to warn plaintiffs of dioxin contamination was within agency discretionary function


agency failure to comply with its own safety regulations was not within discretionary function


agency failure to comply with safety regulations it had adopted was not within discretionary function


agency failure to enforce safety regulations contained in contract with contractor was not within discretionary function


Context: In determining whether a product has obtained a secondary meaning, the Court looks to whether the descriptive term, "although not inherently distinctive, comes through use to be uniquely associated with a single source ...."

See Bernard, 964 F.2d at 1343 (affirming district court’s grant of summary judgment dismissing complaint, observing that plaintiff had failed to produce “evidence that a significant number of prospective purchasers associate his ... trademark with his product.”); see also Black & Decker Corp., 944 F.Supp. at 227 (rejecting claim of secondary meaning on motion for summary judgment).

affirming district court's grant of summary judgment dismissing complaint, observing that plaintiff had failed to produce "evidence that a significant number of prospective purchasers associate his ... trademark with his product."


Context: Holdings is fully controlled (under any definition of the word) by Harvard. In determining who "controls" the Fund, however, we cannot rely on general usage but, rather, must apply the specific definition agreed upon by BTG and Holdings.

stating that a contract's terms will not "be taken in their plain and ordinary sense" if "otherwise indicated by the contract"

See Rogaris v. Albert, 431 Mass. 833, 730 N.E.2d 869, 871 (2000) (stating that a contract’s terms will not “be taken in their plain and ordinary sense” if “otherwise indicated by the contract”); see also Charles I. Hosmer, Inc. v. Commonwealth, 302 Mass. 495, 19 N.E.2d 800, 804 (1939) (explaining that “every phrase and clause must be presumed to have been designedly employed”).

explaining that "every phrase and clause must be presumed to have been designedly employed"


Context: Paragraph (c)(1) begins with broad language: "Notwithstanding any other section in this part." The introduction of a provision by the word "notwithstanding" means that the provision so introduced will prevail over any implicated section that conflicts with it.

stating that the use of a "notwithstanding" clause "clearly signals the drafter's intention that the provisions of the 'notwithstanding1 section override conflicting provisions of any other section"

See Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993) (stating that the use of a “notwithstanding” clause “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding1 section override conflicting provisions of any other section”); Lane v. West, 11 Vet.App. 412, 413 (1998) (per curiam order) (interpreting a clause beginning with “notwithstanding” to exempt CUE motions from the general rule that this Court has jurisdiction only over appeals in which an NOD was filed on or after November 18, 1988); see also Stoll v. Nicholson, 401 F.3d 1375, 1380 (Fed.Cir.2005) (characterizing the language “[notwithstanding any other provision of law” as a “nullifying clause”).

characterizing the language "[notwithstanding any other provision of law" as a "nullifying clause"


Context: Further, the agency considered Cai's varying explanations for initially claiming that she had been persecuted on account of her religion--that she was embarrassed, had not eaten, was confused, and was nervous--and reasonably rejected them.

finding that "an alien's mere recitation that he was nervous or felt pressured during an airport interview will not automatically prevent the IJ or BIA from relying on statements in such interviews when making adverse credibility determinations"

See Yun-Zui Guan, 432 F.3d at 397 n. 6 (2d Cir.2005) (finding that “an alien’s mere recitation that he was nervous or felt pressured during an airport interview will not automatically prevent the IJ or BIA from relying on statements in such interviews when making adverse credibility determinations”); see also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (under substantial evidence standard, agency need not credit an applicant’s explanations unless those explanations would compel a reasonable fact-finder to do so).

under substantial evidence standard, agency need not credit an applicant's explanations unless those explanations would compel a reasonable fact-finder to do so


Context: As long as a law or regulation is rationally based, the mere failure of those who administer it to treat all persons who have violated it with complete equality does not of itself infringe the constitutional principle of equal protection. The equal protection clause prohibits selective enforcement which is "deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification."

"the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all."

Cf. Dandridge v. Williams, 397 U.S. 471, 486-487, 90 S.Ct. 1153, 1162-1163, 25 L.Ed.2d 491 (1970) (“the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.”) The legitimate objective of maintaining an effective police force may require the discretion to make individual judgments, and the equal protection clause is no barrier to legitimate exercise of such discretion.

See also United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979) (prosecutor’s discretion presents no equal protection problem); Harrington v. United States, 673 F.2d 7, 9 (1st Cir. 1982) (applying Batchelder and Oyler to uphold termination of public employee despite his allegation that others with similar offenses were not fired).


Context: . Plaintiff also contends that the FCIP'Employment Agreement and CBP Standards of Conduct do not give rise to a "duty to cooperate," only a "duty to answer." This contention is rejected outright, based on the clear language of these documents and the holdings in the cases cited in the text herein.

See, e.g., Kalkines, 473 F.2d at 1393 (public employee “can be removed for not replying if he is adequately informed both that he is subject to discharge for not answering and that his replies (and their fruits) cannot be employed against him in a criminal case.”); cf. Butler v. Potter, 2011 WL 4479068, at *7 (refusal to answer questions in Kalkines interview equated with failure to cooperate in official investigation despite duty to do so, providing legitimate non-discriminatory reason for termination of postal worker's employment).

public employee "can be removed for not replying if he is adequately informed both that he is subject to discharge for not answering and that his replies (and their fruits) cannot be employed against him in a criminal case."


Context: Where removal proceedings are pending, such as in this case, further administrative relief is available and the termination of an alien's current status is an intermediate, nonfinal agency action.

holding agency action is final "where there are no deportation proceedings pending in which the decision might be reopened or challenged"

See Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir.2011) (holding that termination of asylum is not final agency action because it is “only an intermediate step in a multi-stage administrative process, succeeded (or accompanied) by removal proceedings”); see also Cabaccang v. USCIS, 627 F.3d 1313, 1317 (9th Cir.2010) (holding the district court did not have jurisdiction to review denial of adjustment of status where “removal proceedings are pending”) (quoted by Qureshi 663 F.3d at 781); see also Pinho v. Gonzales, 432 F.3d 193, 202 (3rd Cir.2005) (holding agency action is final “where there are no deportation proceedings pending in which the decision might be reopened or challenged”).

holding that termination of asylum is not final agency action because it is "only an intermediate step in a multi-stage administrative process, succeeded (or accompanied


Context: The United States Supreme Court has not clearly delineated the impact of the Full Faith and Credit Clause, U.S. Const., Art. IV, SS 1, on custody adjudications.

See also Borys v. Borys, 76 N.J. 103, 109-115 (1978) (discussing judicial applications of the Full Faith and Credit Clause to custody decrees).

See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947) (holding New York could lawfully modify a Florida custody decree because Florida court had right under Florida law to change the decree); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (holding Ohio need not give full faith and credit to Wisconsin custody judgment because Wisconsin did not have personal jurisdiction over mother who was in Ohio with children at time process was served; Wisconsin had been matrimonial domicile and father had remained there); Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958) (holding North Carolina had authority to modify New York custody decree if the North Carolina court found changed circumstances, because New York decree was modifiable under New York law on showing of changed circumstances); Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962) (holding South Carolina not bound by Virginia court’s order of dismissal after being informed of an agreement regarding custody, because Virginia law did not require that courts would be bound by agreements between parents with respect to custody of their children).


holding North Carolina had authority to modify New York custody decree if the North Carolina court found changed circumstances, because New York decree was modifiable under New York law on showing of changed circumstances


holding South Carolina not bound by Virginia court's order of dismissal after being informed of an agreement regarding custody, because Virginia law did not require that courts would be bound by agreements between parents with respect to custody of their children


Context: The trial court was authorized to correct the error by nunc pro tunc order.

"nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry, and for some reason were not entered of record at the proper time"

See State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994) (“nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry, and for some reason were not entered of record at the proper time”); see also Jones v. State, 795 S.W.2d 199, 202 n. 1 (Tex.Crim.App.1990) (purpose of a nunc pro tunc order is to have the court records accurately reflect the judgment actually rendered).


Context: I informed Fallon that I suffered a workplace injury ... [and] that Hahn had told me ... that I was ineligible for FMLA leave"). The chronology of these events seriously undercuts Matthys's ability to establish that her FMLA inquiries were the "but for" reason for her termination.

"the causal link between the protected activity and adverse employment action is demonstrated by showing that the employer would not have taken the adverse action 'but for' the employee's protected activity"

See also Sewall, 2001 WL 40802 at *8 (“the causal link between the protected activity and adverse employment action is demonstrated by showing that the employer would not have taken the adverse action ‘but for’ the employee’s protected activity”).

noting that a plaintiffs "suspicious timing" argument was undercut when the defendant employer had already begun disciplinary action prior to his alleged knowledge of the plaintiffs protected activity

See Ridings, 537 F.3d at 774 (noting that a plaintiffs “suspicious timing” argument was undercut when the defendant employer had already begun disciplinary action prior to his alleged knowledge of the plaintiffs protected activity).


Context: Given these facts, we are satisfied that the evidence was sufficient to establish that Mr. Tolbert suffered serious bodily injury. He nearly lost consciousness, he indicated that he was in pain, and he suffered from an "impairment of the function" of his right leg.

victim did not describe pain as extreme, but a reasonable juror could infer from the nature of the injuries and the victim's reaction to them that the pain was extreme

See Gathy v. United States, 754 A.2d 912, 914, 918 (D.C.2000) (court upheld finding of serious bodily injury when victim was slashed across the face with a broken beer bottle and was never unconscious, but was “semi-unconscious,” “in total shock,” and “[not] totally coherent”); cf. Anderson v. United States, 857 A.2d 451, 464 (D.C.2004) (victim did not describe pain as extreme, but a reasonable juror could infer from the nature of the injuries and the victim’s reaction to them that the pain was extreme).

court upheld finding of serious bodily injury when victim was slashed across the face with a broken beer bottle and was never unconscious, but was "semi-unconscious," "in total shock," and "[not] totally coherent"


Context: To be sure, Plaintiff must prove that his conduct was "extreme and outrageous." However, after reviewing the evidence proffered, the court finds that there are sufficient facts which, if proven, would allow -- albeit not require -- a reasonable jury to conclude that Theroux's conduct crossed that boundary.

"There is an issue for the jury if reasonable people could differ on whether the conduct is extreme and outrageous."

See Boyle v. Wenk, 378 Mass. 592, 392 N.E.2d 1053, 1056-57 (1979) (“There is an issue for the jury if reasonable people could differ on whether the conduct is extreme and outrageous.”).

denying summary judgment where reasonable jury could conclude defendant's conduct was extreme and outrageous

See also Kibbe v. Potter, 196 F.Supp.2d 48, 72 (D.Mass.2002) (denying summary judgment where reasonable jury could conclude defendant’s conduct was extreme and outrageous).


Context: "[S]everal state courts have held that the Fourth Amendment is not violated by a search of the grounds or outbuildings within a residence's curtilage where a warrant authorizes a search of the residence."

United States v. Gorman, 104 F.3d 272, 275 (9th Cir.1996); see Nebraska v. Vicars, 207 Neb. 325, 299 N.W.2d 421, 425 (Neb.1980) (warrant to search residence permitted search of calf shed 100 feet from the house on opposite side of chain link fence); State v. Trapper, 48 N.C.App. 481, 269 S.E.2d 680, 684 (N.C.App.1980) (warrant authorizing search of house trailer permitted search of tool shed 30 feet away); State v. Stewart, 129 Vt. 175, 274 A.2d 500, 502 (Vt.1971) (warrant to search house permitted search of a tree in the backyard because within the curtilage); see also Sowers v. Indiana, 724 N.E.2d 588, 591 (Ind.2000) (warrant authorizing search of residence at a specific address also authorized search of a tent in the back yard); Kansas v. Basurto, 15 Kan.App.2d 264, 807 P.2d 162, 165 (1991) (upholding a search of a shed in the backyard of residence, observing “[t]here appears to be little doubt that a search warrant which describes only the residence of a defendant will authorize the search of any vehicles or buildings within the ‘curtilage’ of that residence.”).


upholding a search of a shed in the backyard of residence, observing "[t]here appears to be little doubt that a search warrant which describes only the residence of a defendant will authorize the search of any vehicles or buildings within the 'curtilage' of that residence."


warrant authorizing search of house trailer permitted search of tool shed 30 feet away


warrant to search house permitted search of a tree in the backyard because within the curtilage


Context: . While Plaintiffs rely on case law supporting that district courts should freely grant leave to amend, these cases do not support Plaintiffs' argument here. The district court did grant Plaintiffs leave to amend, and did so more than once; further, the deadline to amend the pleadings passed several years pri- or to Plaintiffs' motion to vacate and amend.

See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.2001) (per curiam) (a district court is not required to allow amendment of the pleadings if there has been undue delay or when amendment would result in undue prejudice to the opposing party); see also Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir.1999) (“Prejudice and undue delay are inherent in an amendment asserted after the close of discovery and after dispositive motions have been filed, briefed, and decided.”).

"Prejudice and undue delay are inherent in an amendment asserted after the close of discovery and after dispositive motions have been filed, briefed, and decided."


Context: After reviewing the evidence presented in the light most favorable to the State, we conclude that the evidence is insufficient to support a finding that the defendant intended to damage or destroy the telephone as opposed to acting with malice towards the victim.

See Sanchez v. State, 909 So.2d 981 (Fla. 5th DCA 2005) (acting with malice toward the person of the owner of the property is not enough to support a conviction for criminal mischief); Insignares v. State, 847 So.2d 1063 (Fla. 3d DCA 2003); In Interest of J.G., 655 So.2d 1284 (Fla. 4th DCA 1995); cf. M.H. v. State, No. 3D05-1357, — So.2d -, 2006 WL 860974 (Fla. 3d DCA Apr. 5, 2006) (willfully driving a stolen scooter through a fence with knowledge that the scooter may be damaged was sufficient evidence to support a conviction of criminal mischief).


Context: While we have implicitly held that whether political association is such an appropriate requirement is a question of fact, see id., there is no dispute in this case as to the nature of Ms. Barker's duties, and the district court resolved the issue as a matter of law in the face of such undisputed facts. We agree that such a resolution is appropriate in this case, and affirm the district court's conclusion that political association and allegiance were appropriate requirements for the performance of Ms. Barker's job as administrative assistant to the city manager.

See McCloud v. Testa, 97 F.3d 1536, 1556 (6th Cir.1996) (“[W]ork-ers analogous to a cabinet secretary to a chief executive, along with the confidential advisors and administrative assistants of such executives and cabinet secretaries, are not entitled to First Amendment protection.”); Smith v. Sushka, 117 F.3d 965, 971 (6th Cir.1997) (administrative assistant to county engineer); Savage v. Gorski, 850 F.2d 64, 68-69 (2d Cir.1988) (confidential secretary to corrections official); see also Wilbur v. Mahan, 3 F.3d 214, 216 (7th Cir.1993) (noting that the confidential character of positions such as personal secretary or personal assistant makes political affiliation an appropriate job requirement).

"[W]ork-ers analogous to a cabinet secretary to a chief executive, along with the confidential advisors and administrative assistants of such executives and cabinet secretaries, are not entitled to First Amendment protection."


Context: As to appellant's Apprendi-Blakely-Ring complaint, "[t]he federal appellate courts have uniformly rejected the contention that Apprendi is violated when a trial court orders the cumulation of sentences which individually lie within the statutory range of punishment but for which the cumulative total exceeds the prescribed statutory maximum for any single offense."

Marrow v. State, 169 S.W.3d 328, 330 (Tex.App.-Waco 2005, pet. filed) (holding that no Apprendi violation shown when trial court cumulated sentences for aggravated sexual assault and indecency with a child when appellant did not dispute that sentence for each count was within statutory range); see, e.g., U.S. v. Davis, 329 F.3d 1250, 1253-55 (11th Cir.), cert. denied, 540 U.S. 925, 124 S.Ct. 330, 157 L.Ed.2d 225 (2003); U.S. v. Chorin, 322 F.3d 274, 278-79 (3d Cir.), cert. denied, 540 U.S. 857, 124 S.Ct. 158, 157 L.Ed.2d 104 (2003); U.S. v. McWaine, 290 F.3d 269, 275-76 (5th Cir.), cert. denied, 537 U.S. 921, 123 S.Ct. 311, 154 L.Ed.2d 210 (2002); U.S. v. Feola, 275 F.3d 216, 218-20 & n. 1 (2d Cir.2001); see also Apprendi, 530 U.S. at 474, 120 S.Ct. at 2354 (“The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts”). Some Texas courts have reached the same conclusion but only in unpublished cases.

"The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts"


Context: First, the district court must determine "whether the expert is qualified 'by knowledge, skill, experience, training, or education' to render an opinion." Id. (quoting Fed.R.Evid. 702). Second, the court "must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony."

noting that "the district court had to undergo a two-step analysis" in determining the admissibility of an expert's opinion

United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.2006); see also 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.2006) (applying “a two-step analysis”); Ralston, 275 F.3d at 969 (noting that “the district court had to undergo a two-step analysis” in determining the admissibility of an expert’s opinion); cf. N. Am. Specialty Ins. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1112 (10th Cir.2009) (focusing on the admissibility test’s second part and recognizing this part itself has two distinct components — reliability, and relevancy, that is, the evidence “must be helpful to the jury”).

focusing on the admissibility test's second part and recognizing this part itself has two distinct components -- reliability, and relevancy, that is, the evidence "must be helpful to the jury"


Context: A truly vindictive prosecution is illegal because it violates due process.

See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 360-61, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978) (prosecutors may not act vindictively in the conduct of plea negotiations); Blackledge v. Perry, 417 U.S. 21, 28-29, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974) (bringing more serious charge following criminal defendant's invocation of right to trial de novo held per se unconstitutional); United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987) (federal prosecution may proceed if federal prosecutor did not participate in state prosecutor's allegedly vindictive action against defendant); and, United States v. Oliver, 787 F.2d 124, 125 (3d Cir. 1986) (due process violated if prosecutor brings more serious charge against a defendant who successfully exercises right of appeal or to collaterally attack prior conviction on lesser charge); cf. North Carolina v. Pearce, 395 U.S. 711, 725, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969) (vindictiveness may play no part in resentencing of criminal defendant who has successfully invoked right to appeal).


bringing more serious charge following criminal defendant's invocation of right to trial de novo held per se unconstitutional


federal prosecution may proceed if federal prosecutor did not participate in state prosecutor's allegedly vindictive action against defendant


due process violated if prosecutor brings more serious charge against a defendant who successfully exercises right of appeal or to collaterally attack prior conviction on lesser charge


Context: In the context of a familial relationship that may trigger a disqualifying interest, the pivotal issue is not the degree of relationship to the board member, but, rather, "the type of association the relative had with the interested organization and the amount of interest the relative had in the official's actions."

setting aside approval of variance application where board member's nephew was a partner in the law firm which represented the applicant before the board

Kremer v. Plainfield, 101 N.J.Super. 346, 351, 244 A.2d 335 (Law Div.1968) (setting aside approval of variance application where board member’s nephew was a partner in the law firm which represented the applicant before the board); see also Van Itallie, supra, 28 N.J. at 258, 146 A.2d 111 (finding no disqualification because board member’s brother only held a low level position in a large corporation that could potentially benefit from the zoning decision and there was no evidence that the brother’s employment status would have benefited from the board’s decision); Petrick v. Planning Bd. of Jersey City, 287 N.J.Super. 325, 331-32, 671 A.2d 140 (App.Div. 1996) (holding board member’s wife’s occasional employment as an occupational therapist with hospital, whose application for a park ing garage was pending before the board, could not reasonably be viewed as improperly influencing board member’s judgment).

finding no disqualification because board member's brother only held a low level position in a large corporation that could potentially benefit from the zoning decision and there was no evidence that the brother's employment status would have benefited from the board's decision


holding board member's wife's occasional employment as an occupational therapist with hospital, whose application for a park ing garage was pending before the board, could not reasonably be viewed as improperly influencing board member's judgment


Context: Nor does it identify the persons within PCLU who most likely possessed responsive materials. A declaration lacking such basic facts does not satisfy an agency's burden to demonstrate the adequacy of its search.

finding the agency affidavit inadequate because it did "not describe the filing systems searched, the search methods employed!,] and the search terms utilized"

See Morley v. CIA, 508 F.3d 1108, 1122-23 (D.C. Cir. 2007) (finding agency affidavit inadequate because it merely identified the employees charged with carrying out the search and “provide[d] no information about the search strategies” used); see also Bonaparte v. U.S. Dep’t of Justice, 531 F.Supp.2d 118, 122 (D.D.C. 2008) (finding the agency affidavit inadequate because it did “not describe the filing systems searched, the search methods employed!,] and the search terms utilized”); Aguirre v. S.E.C., 551 F.Supp.2d 33, 61 (D.D.C. 2008) (finding the agency affidavit inadequate because “it fail[ed] to describe in detail how each office conducted its search”).

finding agency affidavit inadequate because it merely identified the employees charged with carrying out the search and "provide[d] no information about the search strategies" used


finding the agency affidavit inadequate because "it fail[ed] to describe in detail how each office conducted its search"


Context: . The debtor also argues that even if his plan did not expressly provide that claimants may not exercise their rights under section 1301(c), the confirmation order by itself precludes the relief requested by the movants.

But see In re Laska, 20 B.R. 675 (Bankr.N.D.Ohio 1982) (in absence of specific plan provision barring relief from the chapter 13 co-debtor stay, creditor who did not object to plan did not forfeit right to relief under section 1301(c)(2)).

Cf., e.g., In re Pizzulo, 33 B.R. 740 (Bankr.E.D.Pa.1983) (after entry of confirmation order, only subsequent events may serve as basis for relief from stay under section 362(d)).


Context: Absent the government, however, Intervenors must now, and for the first time, establish Article III standing.

"[A]n intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III."

See Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“[A]n intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.”); see also Didrickson, 982 F.2d at 1338 (“An interest strong enough to permit intervention is not necessarily a sufficient basis to pursue an appeal abandoned by the other parties.”).

"An interest strong enough to permit intervention is not necessarily a sufficient basis to pursue an appeal abandoned by the other parties."


Context: . It is clear that; as a general matter, the Supreme Court has not limited the use of the exclusionary rule to constitutional violations.

noting that the Supreme Court "in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused's rights under the Constitution, federal statutes, or federal rules of procedure."

See United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (noting that the Supreme Court "in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused’s rights under the Constitution, federal statutes, or federal rules of procedure."); see also Miller v. United States, 357 U.S. 301, 313-14, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (upholding suppression of evidence obtained in violation of 18 U.S.C. § 3109, the federal “knock and announce” statute); Mallory v. United States, 354 U.S. 449, 455, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (stating that suppression of statements obtained in violation of Fed.R.Crim.P. 5 would be proper if failure to arraign "without unnecessary delay” provided "an opportunity for the extraction of a confession”). Nor have we.

upholding suppression of evidence obtained in violation of 18 U.S.C. SS 3109, the federal "knock and announce" statute


stating that suppression of statements obtained in violation of Fed.R.Crim.P. 5 would be proper if failure to arraign "without unnecessary delay" provided "an opportunity for the extraction of a confession"


Context: "However, Alabama courts have concluded that some matters are outside the general or common knowledge and, therefore, not appropriate for judicial notice. For example, our supreme court has refused to take judicial notice that an arsenal was a 'sole hub' for certain Army activities.

concluding that the trial court erred in determining the appropriate amount of damages when that determination was based in part on the judge's personal knowledge about fishing ponds

See Westwind Techs., Inc. v. Jones, 925 So.2d 166, 171 (Ala. 2005) (‘Although the activities of Red-stone Arsenal in Madison County might well form a part of the common knowledge of every person of ordinary understanding and intelligence in Madison County, whether Redstone Arsenal represents the “sole hub of procurement and acquisitions” for the aviation branch of the United States Army would not be a matter susceptible of such common knowledge.’); see also Argo v. Walston, 885 So.2d 180, 183 (Ala.Civ.App.2003) (concluding that the trial court erred in determining the appropriate amount of damages when that determination was based in part on the judge’s personal knowledge about fishing ponds).

'Although the activities of Red-stone Arsenal in Madison County might well form a part of the common knowledge of every person of ordinary understanding and intelligence in Madison County, whether Redstone Arsenal represents the "sole hub of procurement and acquisitions" for the aviation branch of the United States Army would not be a matter susceptible of such common knowledge.'


Context: Forfeiture of counsel has also been found in cases in which a defendant has threatened the life of his counsel or engaged in a pattern of threatening and abusive behavior.

holding "that appellant forfeited his right to counsel through his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in his own defense"

Commonwealth v. Thomas, 879 A.2d 246, 258 (Pa.Super.Ct.2005) (holding “that appellant forfeited his right to counsel through his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in his own defense”); see United States v. Thompson, 335 F.3d 782, 785 (8th Cir.2003) (concluding that defendant’s threat to kill his counsel justified permitting counsel to withdraw and refusing to appoint substitute counsel); United States v. McLeod, 53 F.3d 322, 325-26 (11th Cir.1995) (holding that defendant forfeited his right to counsel by verbally abusing and threatening to harm his attorney, threatening to sue his attorney on four different occasions, and attempting to persuade his attorney to engage in unethical conduct); People v. Sloan, 262 A.D.2d 431, 693 N.Y.S.2d 52, 53 (1999) (concluding “that the defendant forfeited his right to counsel by his persistent pattern of threatening, abusive, obstreperous, and uncoop erative behavior with successive assigned counsel”); State v. Carruthers, 35 S.W.3d 516, 550 (Tenn.2000) (holding that a defendant forfeited his right to counsel when he verbally abused and refused to communicate with a succession of attorneys).

concluding that defendant's threat to kill his counsel justified permitting counsel to withdraw and refusing to appoint substitute counsel


holding that defendant forfeited his right to counsel by verbally abusing and threatening to harm his attorney, threatening to sue his attorney on four different occasions, and attempting to persuade his attorney to engage in unethical conduct


concluding "that the defendant forfeited his right to counsel by his persistent pattern of threatening, abusive, obstreperous, and uncoop erative behavior with successive assigned counsel"


holding that a defendant forfeited his right to counsel when he verbally abused and refused to communicate with a succession of attorneys


Context: In addition to the COMPAS risk assessment, the seriousness of the crime and Loomis's criminal history both bear a nexus to the sentence imposed.

See Gallion, 270 Wis. 2d 535, ¶ 46 ("we require that the court, by reference to the relevant facts and factors, explain how the sentence's component parts promote the sentencing objectives.").

See also Harris v. State, 75 Wis. 2d 513, 519, 250 N.W.2d 7 (1977) (relevant sentencing factors include past record of criminal offenses, history of undesirable behavior patterns, and results of presentence investigation).


Context: However, there is a genuine dispute of material fact as to whether the evidence used by defendants in support of Gamez's 2010 re-validation as a gang associate, a report of an interview with a confidential informant, had "sufficient indicia of reliability," through corroboration or other means to meet the "some evidence" standard as required to satisfy due process.

explaining that due process gang validation claims are subject to the "some evidence" standard, and concluding that "any of [ ] three pieces of evidence would have sufficed to support the validation because each has sufficient indicia of reliability"

See Bruce, 351 F.3d at 1288 (explaining that due process gang validation claims are subject to the “some evidence” standard, and concluding that “any of [ ] three pieces of evidence would have sufficed to support the validation because each has sufficient indicia of reliability”); Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir.1990) (discussing indicia of reliability); see also Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.1987) (per curiam) (discussing the “some evidence” requirement in the context of prison disciplinary segregation, and setting forth criteria to guide review of the determination of reliability of “an unidentified inmate informant”).

discussing the "some evidence" requirement in the context of prison disciplinary segregation, and setting forth criteria to guide review of the determination of reliability of "an unidentified inmate informant"


Context: The record shows that the detainees have been visited by members of the International Red Cross and diplomats from their home countries, and have had limited opportunities to write to friends and family members. Family members have filed habeas petitions on the behalf of some detainees, and diplomats from several countries including Pakistan, Kuwait, Australia, and the United Kingdom have made inquiries into the status of the detainees and sought their release.

"[T]he Court would point out that the notion that these aliens could be held incommunicado from the rest of the world would appear to be inaccurate."

Rasul v. Bush, 215 F.Supp.2d 55, 57 (D.D.C.2002) (“[T]he Court would point out that the notion that these aliens could be held incommunicado from the rest of the world would appear to be inaccurate.”); see also Hamdi II, 296 F.3d at 279 (Father filed a petition for a writ of habeas corpus as next friend of his son, who is detained at the Norfolk Naval Station Brig as an alleged enemy combatant captured during ongoing military operations in Afghanistan.). As noted by the District Court for the District of Columbia, “the government recognizes that these aliens fall within the protections of certain provisions of international law and that diplomatic channels remain an ongoing and viable means to address the claims raised by these aliens.”


Context: Physical injury is defined to include an "impairment of physical condition or substantial pain." To that end, New York state courts have consistently stated that a certain level of harm is necessary before a defendant may be convicted of third-degree assault under N.Y. Penal Law SS 120.00(1), and have dismissed cases that do not rise to that level.

noting that under the New York Penal Law, "minor assaul-tive conduct or petty batteries, i.e., so-called 'technical assaults' are now covered by the offense of harassment," as opposed to the offense of third-degree assault

See, e.g., Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980) (“[Wjhile the question whether the ‘substantial pain’ necessary to establish assault in the third degree has been proved is generally a question for the trier of fact, ... there is an objective level ... below which the question is one of law, and the charge should be dismissed.”); People v. Jimenez, 55 N.Y.2d 895, 896, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982) (“Testimony that the victim suffered a one centimeter cut above her lip, without more, was not adequate to prove that the victim suffered either ‘substantial pain’ or ‘impairment of a physical condition.’ ”) (internal citation omitted); People v. Toure, 10 Misc.3d 1054(A), 2005 WL 3249438 at *2 (N.Y.Crim.Ct.2005) (holding that defendant, in punching a police officer in the back and in causing the officer to fall to the ground by jumping on him, had not caused sufficient injury to warrant a third-degree assault charge); see also People v. Martini 62 Misc.2d 544, 545, 309 N.Y.S.2d 831 (N.Y.Crim.Ct.1970) (noting that under the New York Penal Law, “minor assaul-tive conduct or petty batteries, i.e., so-called ‘technical assaults’ are now covered by the offense of harassment,” as opposed to the offense of third-degree assault).

"[Wjhile the question whether the 'substantial pain' necessary to establish assault in the third degree has been proved is generally a question for the trier of fact, ... there is an objective level ... below which the question is one of law, and the charge should be dismissed."


"Testimony that the victim suffered a one centimeter cut above her lip, without more, was not adequate to prove that the victim suffered either 'substantial pain' or 'impairment of a physical condition.' "


holding that defendant, in punching a police officer in the back and in causing the officer to fall to the ground by jumping on him, had not caused sufficient injury to warrant a third-degree assault charge


Context: In an informal agency review action, the appropriate standard for review is whether the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," as specified in Section 706(2)(A).

an "abuse of discretion" is a clear error of judgment, not simply a different result that can arguably be obtained when applying the law to the facts

See, e.g., Overton Park, 401 U.S. at 416, 91 S.Ct. at 824, 28 L.Ed.2d at 153; Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974) (reviewing court will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned”); Center for Auto Safety v. Dole, 828 F.2d 799, 809-10 (D.C.Cir.1987); National Law Center on Homelessness and Poverty v. Dep’t of Veterans Affairs, 736 F.Supp. 1148, 1154 (D.D.C.1990) (arbitrary and capricious standard presumes validity of agency action); see also United Telegraph Workers v. Western Union Corp., 771 F.2d 699, 703 (3d Cir.1985) (an “abuse of discretion” is a clear error of judgment, not simply a different result that can arguably be obtained when applying the law to the facts).

reviewing court will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned"


Context: Hence, in only limited circumstances may bankruptcy courts defer to the doctrine of collateral estoppel and thereby ignore Congress' mandate to provide plenary review of dischargeability issues. Collateral estoppel applies in bankruptcy courts only if, inter alia, the first court has made specific, subordinate, factual findings on the identical dischargeability issue in question -- that is, an issue which encompasses the same prima facie elements as the bankruptcy issue -- and the facts supporting the court's findings are discernible from that court's record.

In re Davis, 3 F.3d 113, 115 (5th Cir.1993); In re Shuler, 722 F.2d at 1256. See In re Comer, 723 F.2d 737 (9th Cir.1984) (ruling that bankruptcy courts should not rely solely on state court judgments when determining the true nature of a debt for dischargeability purposes if so doing would prevent the bankruptcy courts from exercising their exclusive jurisdiction to determine whether the debt is dischargeable); see also Browning v. Navarro, 887 F.2d 553, 561 (5th Cir.1989) (providing that although the doctrine of res judicata is generally applicable to bankruptcy courts, the contours of the doctrine are “different for bankruptcy courts ... because tasks which have been delegated to [bankruptcy courts] by Congress may not be interfered with by the decisions of other courts_ [Bankruptcy courts have a job to do and sometimes they must ignore res judicata in order to carry out Congress’ mandate”).

providing that although the doctrine of res judicata is generally applicable to bankruptcy courts, the contours of the doctrine are "different for bankruptcy courts ... because tasks which have been delegated to [bankruptcy courts] by Congress may not be interfered with by the decisions of other courts_ [Bankruptcy courts have a job to do and sometimes they must ignore res judicata in order to carry out Congress' mandate"


Context: Haskenhoff argues the vicarious liability standard did not replace, but rather supplemented, the direct negligence standard. Because the ICRA hostile-work-environment, claim is modeled after its Title VII counterpart, we consider federal law instructive.

"When interpreting discrimination claims under Iowa Code chapter 216, we turn to federal law, including Title VII of the United States Civil Rights Act... ."

Boyle, 710 N.W.2d at 749-50 (recognizing that Title VII hostile-work-environment claim has the same elements as ICRA claim); see also DeBoom, 772 N.W.2d at 7 (“When interpreting discrimination claims under Iowa Code chapter 216, we turn to federal law, including Title VII of the United States Civil Rights Act... .”)• Accordingly, we will review the development of these liability theories under federal caselaw and the interplay of those decisions with our court’s precedents.


Context: Further, this mode of analysis is required by the Supreme Court, which, in the context of election-related burdens on free expression, has long advised against substituting the hard judgments common in ordinary litigation with litmus-paper tests. The Court also has repeatedly explained that non-expressive conduct does not acquire First Amendment protection whenever it is combined with another activity that involves protected speech.

"We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."

See, e.g, Clark, 468 U.S. at 297-98, 104 S.Ct. at 3071 (emphasizing that the activity of camping does not become speech protected by the First Amendment when demonstrators camp as part of a political demonstration); Rumsfeld, 547 U.S. at 66, 126 S.Ct. at 1311 (2006) (“If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it.”); see also United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”).


"If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into 'speech' simply by talking about it."


Context: Plainly, trial judges are in a better position than appellate court judges to determine what mechanism should be employed in a given case when deciding whether the requesting party has established that the need for the information outweighs the privacy rights of the non-party.

See Eisner v. E-Commerce Coffee Club, 126 So.3d 1261, 1263 (Fla. 4th DCA 2013) (“We ... decline to adopt a per se rule requiring a trial court always to conduct an evidentia-ry hearing before ordering financial discovery from a party. Such a mandatory rule would be inconsistent with the Florida Supreme Court’s refusal to limit the discretion of trial courts with specific rules or formulas.”) ; see also 2215 Venetian Court Bldg. 4, Inc. v. Harrison, 149 So.3d 1176 (Fla. 2d DCA 2014) (finding no reversible error where the trial court failed to conduct an evidentiary hearing prior to ordering the disclosure of financial records because the relevancy of the requested documents was readily apparent and the personal right to privacy was not at issue).

"We ... decline to adopt a per se rule requiring a trial court always to conduct an evidentia-ry hearing before ordering financial discovery from a party. Such a mandatory rule would be inconsistent with the Florida Supreme Court's refusal to limit the discretion of trial courts with specific rules or formulas."


Context: Defendant objects to the clerical nature of certain tasks performed by paralegals Sue Wolsfeld, Patti Sullivan, and Dania Richardson, all of which were billed at a $95.00 hourly rate. Clerical tasks should not be billed at senior associate or paralegal rates.

holding that it is not appropriate to allow "the wasteful use of highly skilled and highly priced talent for matters easily delegable to nonprofessionals"

See Missouri v. Jenkins, 491 U.S. 274, 285-88, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (holding that “purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them”); see also Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir.1995) (holding that it is not appropriate to allow “the wasteful use of highly skilled and highly priced talent for matters easily delegable to nonprofessionals”). Plaintiffs offer no explanation for why Sears should pay these fees and do not suggest that they constitute paralegal work.

holding that "purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them"


Context: Nothing in the A/O Agreement clarifies what date the A/O Agreement intended to use as the benchmark -- the date of the PECO Agreement with its Exhibit A or the date of the A/O Agreement with its Attachment 1(a). Consequently, the district court properly found that the A/O Agreement was ambiguous and submitted the question to the jury.

"When the contract contains an ambiguity, its interpretation becomes a question of fact based on the intention of the parties to it."

See Watkins, 689 F.2d at 538 (“[Ojnee the contract is found to be ambiguous, the determination of the parties’ intent through the extrinsic evidence is a question of fact.”); see also Staff Indus., 846 S.W.2d at 546 (“When the contract contains an ambiguity, its interpretation becomes a question of fact based on the intention of the parties to it.”).

"[Ojnee the contract is found to be ambiguous, the determination of the parties' intent through the extrinsic evidence is a question of fact."


Context: Finally, this appeal is before us for the second time. When Hercules initially sought to appeal from the order dismissing with prejudice Count XI of its complaint, we held that the question whether Hercules had alleged facts sufficient to state a claim of fraudulent inducement and to avoid arbitration was not ripe for review, because an order staying litigation pending arbitration is not immediately appealable; we expressly reserved the merits of that question for possible resolution in the event of an appeal from a final decision.

See Haynes v. Kuder, supra note 6, 591 A.2d at 1287 n. 1 (“To challenge the ... order compelling arbitration, appellant properly appeals from the ... order ... confirming the eventual arbitration decision.”); cf. FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269,-, 111 S.Ct. 648, 652, 112 L.Ed.2d 743 (1991) (under federal law, premature appeal from order that lacked finality automatically ripens once final judgment is entered). We therefore proceed to consider the merits of that challenge.

"To challenge the ... order compelling arbitration, appellant properly appeals from the ... order ... confirming the eventual arbitration decision."


Context: A showing of irreparable injury is not invariably required where a statute or ordinance authorizes a governmental entity to seek relief to prevent harm to the public.

See Kourlis v. District Court, 930 P.2d 1329 (Colo.1997)(where statute empowered commissioner of agriculture to enforce its provisions and obtain recourse in courts to enjoin violations, commissioner was not required to prove irreparable injury or inadequacy of remedy at law when seeking either preliminary or permanent injunctive relief); Lloyd A Fry Roofing Co. v. State Dep’t of Health Air Pollution Variance Board, 191 Colo. 463, 553 P.2d 800 (1976)(state agency did not have to show irreparable injury before obtaining injunction to prevent violation of air quality standards); see also Conservation Commission v. Price, 193 Conn. 414, 479 A.2d 187 (1984)(injunctive relief proper for violation of town’s regulations regarding protection of its water supply, even absent a showing of present harm).

injunctive relief proper for violation of town's regulations regarding protection of its water supply, even absent a showing of present harm


state agency did not have to show irreparable injury before obtaining injunction to prevent violation of air quality standards


Context: In contrast, a waiver of a statutory right may be valid even if it is not knowingly made.

prisoner's waiver of rights, contained in the Interstate Agreement on Detainers Act, SS 2, Art. IV(e

See also Webb v. Keohane, 804 F.2d 413, 414-15 (7th Cir.1986) (prisoner’s waiver of rights, contained in the Interstate Agreement on Detainers Act, § 2, Art. IV(e), 18 U.S.C.App., need not be knowing and intelligent).

See United States v. Busche, 915 F.2d 1150, 1151 (7th Cir.1990) (defendant waives statutory right to have ten days to inspect his presentence investigation report before his sentencing if he participates in sentencing earlier without an objection). Accord United States v. Edwards, 945 F.2d 1387, 1404 (7th Cir.), cert. denied, — U.S. —, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992); United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991).


Context: It is indisputable, however, that Maryland precedent does not support this position. In Maryland, claims may "arise out of the same transaction or series of transactions even if they involve different harms or different theories or measures of relief." Anyanwutaku v. Fleet Mortg.

"When claims arise out of a single nucleus of operative fact (or out of the same 'transaction'

Group, Inc., 85 F.Supp.2d 566, 571 (D.Md.2000) (citing Restatement (Second) of Judgments § 24(2) cmt. c (1982)). See Bouchat v. Bon-Ton Department Stores, Inc., 506 F.3d 315, 328 (4th Cir.2007) (plaintiffs decision not to seek actual damages in the first suit did not alter the court’s “conclusion that the claims in [his] cases were identical”); See also Reeves v. St. Mary’s County Comm’rs, 268 F.Supp.2d 576, 584 (D.Md.2003) (“When claims arise out of a single nucleus of operative fact (or out of the same ‘transaction’), they will be barred even if they involve different harms or different legal theories.”).

plaintiffs decision not to seek actual damages in the first suit did not alter the court's "conclusion that the claims in [his] cases were identical"


Context: As a general rule, a statutory change will not moot a dispute unless it cures the problems that led to the suit.

See Brockington v. Rhodes, 396 U.S. 41, 43, 90 S.Ct. 206, 207, 24 L.Ed.2d 209 (1969) (challenge to requirement that candidates obtain signatures of more than 1% of eligible voters not mooted by amendment reducing requirement from 7% to 4%); see also Schall v. Martin, 467 U.S. 253, 256 n. 2, 104 S.Ct. 2403, 2405 n. 2, 81 L.Ed.2d 207 (1984) (repeal of statute does not moot dispute where relevant provision reenacted in new statute).


Context: Consistent with this basic understanding, the Supreme Court has held that benefits vest even if subject to a condition subsequent and that the terms of the condition are enforceable.

"The Supreme Court ... has noted that vested pension rights may still be subject to certain conditions subsequent." (citing Nachman

See Nachman, 446 U.S. at 378, 100 S.Ct. 1723 (“[E]ven if the actual realization of expected benefits might depend on the sufficiency of plan assets, they were nonetheless considered vested.”); see also Modzelewski, 14 F.3d at 1378 (“The Supreme Court ... has noted that vested pension rights may still be subject to certain conditions subsequent.” (citing Nachman)); Helwig v. Kelsey-Hayes Co., 93 F.3d 243, 250 (6th Cir.1996) (“[Ejmployers may modify or terminate vested rights where their power [to] do so was an explicit part of the agreement between the parties.”).

"[E]ven if the actual realization of expected benefits might depend on the sufficiency of plan assets, they were nonetheless considered vested."


"[Ejmployers may modify or terminate vested rights where their power [to] do so was an explicit part of the agreement between the parties."


Context: A statement is not defamatory if it is a statement of opinion because "expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution...."

Vail, 649 N.E.2d at 184. Whether an alleged defamatory statement is one of fact or opinion is a question of law that may be resolved on a motion to dismiss. Id. (reversing dismissal of defamation complaint for failure to state a claim); see also SPX Corp. v. Doe, 253 F.Supp.2d 974, 978 (N.D.Ohio 2003) (explaining that because the privilege accorded opinions presents a legal question “it is appropriate to decide these issue in the context of a motion pursuant to Rule 12(b)(6)”).

explaining that because the privilege accorded opinions presents a legal question "it is appropriate to decide these issue in the context of a motion pursuant to Rule 12(b)(6)"


Context: Particularly egregious here is the fact that respondent agreed to the alternates sitting in the jury room, and participating if necessary, and only attempted to withdraw his consent when it became apparent that he was losing jurors that he considered favorable to his side. A party cannot acquiesce or agree to a procedure and then complain about the ruling when things appear to turn to his disadvantage.

See Smith v. Gulf Oil Co., 995 F.2d 638, 645-46 (6th Cir.1993) (holding that, although the trial court violated Federal Rule 47(b), waiver principles apply in the alternate juror context); cf. United States v. Cencer, 90 F.3d 1103, 1109 (6th Cir.1996) (holding that a defendant waives his right to object to a post-submission substitution of an alternate juror when he voluntarily agreed to the procedure); United States v. Guevara, 823 F.2d 446, 448 (11th Cir.1987) (holding that “[wjhere the defendant knowingly consents to the addition of an alternate juror, as was obviously the case here, he waives any challenge to that procedure on appeal.”).


holding that "[wjhere the defendant knowingly consents to the addition of an alternate juror, as was obviously the case here, he waives any challenge to that procedure on appeal."


Context: Had Congress wished to afford derivative work status to works involving changes in medium alone, one would expect to see references to, for example, "hardcover," "softcover," "VHS," and "CD." Moreover, under the Copyright Act, changes in medium generally do not involve sufficient originality to justify copyright protection.

"to support a copyright there must be at least some substantial variation, not merely a trivial variation such as might occur in the translation to a different medium"

See L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir.1976) (“to support a copyright there must be at least some substantial variation, not merely a trivial variation such as might occur in the translation to a different medium”); see also id. (quoting 1 Melville B. Nimmer, The Law of Copyright § 20.2, at 94 (1975)) (“ ‘the mere reproduction of a work of art in a different medium should not constitute the required originality for the reason that no one can claim to have independently evolved any particular medium’ ”; plastic recreation of sculpture originally copyrighted in metal not a derivative work); Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir.1980) (plastic recreation of Disney figurines not a derivative work); Past Pluto Prods. Corp. v. Dana, 627 F.Supp. 1435, 1443 (S.D.N.Y.1986) (remodeling of the Statute of Liberty ás a foam hat not a derivative work).

remodeling of the Statute of Liberty as a foam hat not a derivative work


Context: P27 However, we apply our Supreme Court's recent articulation of the ER 404(b) evidence admission requirements in Foxhoven, which states that where such evidence is admitted, a limiting instruction "must be given to the jury."

See, e.g., Foxhoven, 161 Wn.2d at 175; Lough, 125 Wn.2d at 864 (noting that because the trial court repeatedly gave a limiting instruction to the jury at the conclusion of trial and before each witness in question testified, the record failed to support a contention that the jury used the ER 404(b) evidence for an improper purpose, as the limiting instruction was given clearly and repeatedly and a jury is presumed to follow the trial court’s instructions); see also Lough, 125 Wn.2d at 860 n.18 (citing State v. Brown, 113 Wn.2d 520, 529, 782 P.2d 1013, 787 P.2d 906 (1989), for the proposition that the trial court should explain the purpose of the evidence and give a cautionary instruction to consider it for no other purpose); Brown, 113 Wn.2d at 529 (citing Saltarelli, 98 Wn.2d at 362 (citing State v. Goebel, 36 Wn.2d 367, 378-79, 218 P.2d 300 (1950))); Goebel, 36 Wn.2d at 379 (“the court should state to the jury whatever it determines is the purpose (or purposes) for which the evidence is admissible; and it should also be the court’s duty to give the cautionary instruction that such evidence is to be considered for no other purpose or purposes”); State v. Whalon, 1 Wn. App. 785, 794, 464 P.2d 730 (citing Goebel, 36 Wn.2d 367), review denied, 78 Wn.2d 992 (1970).

"the court should state to the jury whatever it determines is the purpose (or purposes


Context: Bejarano was released from prison on November 26, 2013, but his petition is not moot.

"Because [defendant] is still serving his term of supervised release, the case-or-controversy requirement is met here and the case is not moot."

See Spencer v. Kemna, 523 U.S. 1, 8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ("In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences ....”); see also United States v. Camargo, 119 Fed.Appx. 670, 671 (5th Cir.2005) (per curiam) (unpublished) ("Because [defendant] is still serving his term of supervised release, the case-or-controversy requirement is met here and the case is not moot.”).

"In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences ...."


Context: See Pa. R.Crim. P. 1410. The enactment of amended Rule 1410 has spawned a series of problems regarding those issues that are not typically raised before or during a trial, including a claim that the verdict is against the weight of the evidence.

listing cases that hold that "a defendant must always file a post7sentence motion in order to preserve a claim assailing a verdict as against the weight' of the evidence"

See Commonwealth v. Clinton, 468 Pa.Super. 385, 683 A.2d 1236 (1996) (listing cases that hold that “a defendant must always file a post7sentence motion in order to preserve a claim assailing a verdict as against the weight' of the evidence”).

specific discretionary sentencing claim involving trial court's alleged failure to state reasons for the sentence on the record may be addressed for the first time by appellate court

See also Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996) (specific discretionary sentencing claim involving trial court’s alleged failure to state reasons for the sentence on the record may be addressed for the first time by appellate court); Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995) (general claim regarding discretionary aspects of sentence must be made to the trial court in the first instance despite amendments to post-trial criminal procedure).


general claim regarding discretionary aspects of sentence must be made to the trial court in the first instance despite amendments to post-trial criminal procedure


Context: To the extent counsel is raising an Eighth Amendment challenge to AvaroReyes's sentence, we conclude that the argument fails.

finding 151-month sentence for conspiring to distribute phencyclidine not "excessive"

See United States v. Collins, 340 F.3d 672, 679 (8th Cir.2003) (Eighth Amendment forbids only extreme sentences that are grossly disproportionate to crime); cf. id. at 676, 679-80 (imposition of mandatory life sentence for conspiring to distribute more than 500 grams of methamphetamine was not cruel and unusual punishment under Eighth Amendment); United States v. Jones, 2 F.3d 827, 828-29 (8th Cir.1993) (finding 151-month sentence for conspiring to distribute phencyclidine not “excessive”).


Context: Substantial evidence supports the agency's adverse credibility determination based on Singh's prior dishonesty under oath. Substantial evidence also supports the BIA's determination that Singh lacked an excusable justification for his false statements regarding his family's presence and activities in the U.S. because he did not make the statements while fleeing persecution.

"a genuine refugee escaping persecution may lie about his citizenship to immigration officials in order to flee his place of persecution or secure entry into the United States"

See Singh, 643 F.3d at 1181 (upholding agency’s adverse credibility finding based on petitioner’s lies to immigration authorities that were “completely unrelated to escaping immediate danger or gaining entry into the United States”); cf. Akinmade v. INS, 196 F.3d 951, 955-56 (9th Cir.1999) (“a genuine refugee escaping persecution may lie about his citizenship to immigration officials in order to flee his place of persecution or secure entry into the United States”).

upholding agency's adverse credibility finding based on petitioner's lies to immigration authorities that were "completely unrelated to escaping immediate danger or gaining entry into the United States"


Context: Further, since domestic law sets the standards for the TVPA, secondary or indirect theories of liability recognized by U.S. law are available for claims brought under the TVPA. The TVPA contemplates liability against those who did not "personally execute the torture or extrajudicial killing."

"[T]he [TVPA] reaches those who ordered, abetted, or assisted in the wrongful act."

See Mohamad, 566 U.S. at -, 132 S.Ct. at 1709 (emphasis added); Aldana, 416 F.3d at 1248 (“[T]he [TVPA] reaches those who ordered, abetted, or assisted in the wrongful act.”); see also Chowdhury, 746 F.3d at 52 (noting that agency law “can provide a theory- of tort liability if a defendant did not personally torture the victim”).

noting that agency law "can provide a theory- of tort liability if a defendant did not personally torture the victim"


Context: Having carefully reviewed the record, we are satisfied that this is one of the very few cases in which the trial court could determine, based on a defendant's past proven criminal record, that he should be under correctional supervision for the remainder of his life. When a trial judge finds, based upon substantial evidence, that a person will remain a danger to the community for the remainder of his or her life, a sentence of ninety-seven years with with thirty-two years suspended is not clearly mistaken.

See Post v. State, 580 P.2d 304, 308-09 (Alaska 1978); Wortham v. State, 689 P.2d 1133, 1143-44 (Alaska App.1984) (approving a composite sentence of fifty-three years of imprisonment for a defendant with a serious criminal record convicted of particularly heinous offenses).

But see Larson, 688 P.2d at 600 (approving a forty-year sentence but finding the sentence should not be consecutive to a prior felony sentence); Nix, 653 P.2d at 1101 (reducing composite sentence to forty years for a repeat felony offender convicted of several serious crimes).


reducing composite sentence to forty years for a repeat felony offender convicted of several serious crimes


Context: Assuming, arguendo, that Plaintiffs allegation is true, accrual of his claims would be postponed by the accrual suspension rule. The District Court, however, issued its Opinion on June 29, 1990.

"[A] plaintiffs ignorance of a claim that he should have been aware of is not enough to suspend the accrual of a claim."

See Ingram v. United States, 560 F.3d 1311, 1314-15 (Fed.Cir.2009) (“[A] plaintiffs ignorance of a claim that he should have been aware of is not enough to suspend the accrual of a claim.”) (citation omitted); see also Catawba Indian Tribe, 982 F.2d at 1572 (holding that ignorance or misunderstanding of the law would not toll the running of the statute of limitations); Young, 529 F.3d at 1385 (It is a “Plaintiffs knowledge of the facts of the claim that determines the accrual date,” not the discovery of a legal theory.).


It is a "Plaintiffs knowledge of the facts of the claim that determines the accrual date," not the discovery of a legal theory.


Context: . The efficiency of the warden's response may have come at the expense of reasonableness. Is it rational that an effort to remove all "obscene" materials from the library would result in the expunging of William Styron's Sophie's Choice, Gore Vidal's Myra Breckin-ridge, and a number of works by John Updike?

striking a state prison regulation where prison administrators classified a book containing photographs of Michelangelo's Sistine Chapel masterpiece as "pornography"

See Aiello v. Litscher, 104 F.Supp.2d 1068, 1080 (W.D.Wis.2000) (striking a state prison regulation where prison administrators classified a book containing photographs of Michelangelo’s Sistine Chapel masterpiece as "pornography”); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (noting the "well nigh universal belief that good books, plays, and the arts lift the spirit, improve the mind, enrich the human personality, and develop character”).

noting the "well nigh universal belief that good books, plays, and the arts lift the spirit, improve the mind, enrich the human personality, and develop character"


Context: Instead, a plaintiff must set forth factual allegations of fraudulent intent in connection with the specific transfer sought to be avoided and must show some direct connection between a defendant and a debt- or's fraudulent Ponzi scheme.

"the proper focus of a fraudulent transfer inquiry is on the transfer itself, not the overall business practices of the Debtor"

See Carrozzella & Richardson, 286 B.R. at 490 (“the proper focus of a fraudulent transfer inquiry is on the transfer itself, not the overall business practices of the Debtor”); Balaber-Strauss, 256 B.R. at 680 (a trustee cannot base a fraudulent transfer claim on the theory that, because Debtor operated a Ponzi scheme, all transfers made by Debt- or qualify as actual or constructively fraudulent transfers); see also Sharp Int’l, 403 F.3d at 56 (affirming the dismissal of an intentional fraudulent conveyance complaint under Rule 12(b)(6) because the fraud alleged in the complaint relates to the manner in which the debtor obtained new funding from other creditors, not the debtor’s subsequent payment of part of the proceeds to the defendant).


a trustee cannot base a fraudulent transfer claim on the theory that, because Debtor operated a Ponzi scheme, all transfers made by Debt- or qualify as actual or constructively fraudulent transfers


Context: Plaintiffs also point to record evidence that the bank holding company defendants and their subsidiaries shared common officers and directors (Decl. of Joseph S. Tusa, Dec. 20, 2006, Ex. 1; Decl. of Joseph S. Tusa, Mar. 2, 2007, Exs. Y, PP), but this Resnick factor, without more than otherwise indicated in the instant case, is insufficient as a matter of law to establish alter ego liability of a parent corporation.

"[Corporate ownership of a subsidiary and overlapping offices and directorates are not, without more, sufficient to impose liability on the parent for conduct of the subsidiary!.]"

See Greene v. Long Island R.R. Co., 280 F.3d 224, 235 (2d Cir.2002) (“[Corporate ownership of a subsidiary and overlapping offices and directorates are not, without more, sufficient to impose liability on the parent for conduct of the subsidiary!.]”); see also In re Amaranth Natural Gas Commodities Litig., 587 F.Supp.2d 513, 538 (S.D.N.Y.2008) (holding that ownership and overlapping directors are insufficient, standing alone to pierce the corporate veil); In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 342 F.Supp.2d 207, 216 (S.D.N.Y.2004) (“Courts have held, however, that factors such as sole ownership, overlapping directors, consolidated financial statements, and reference to the subsidiary as a department are insufficient to establish the type of day-to-day control necessary to disregard corporate separateness.”); Allied Programs Corp. v. Puritan Ins. Co., 592 F.Supp. 1274, 1277 (S.D.N.Y.1984) (“ ‘It is well settled that there must be complete domination and control before the parent’s corporate veil can be pierced. Stock control, interlocking directors and officers, and the like, are in and of themselves insufficient.’ ”) (quoting Musman v. Modem Deb. Inc., 50 A.D.2d 761, 377 N.Y.S.2d 17, 20 (N.Y.App.Div.1975)). The facts which plaintiffs claim indicate excessive control and domination in the instant case — controlling ownership interest in subsidiaries, reporting of consolidated results of such subsidiaries in public filings, and overlapping directors and officers between parent and subsidiary corporations — are commonplace as generally-accepted corporate form, and are insufficient without more, as a matter of law, to eviscerate the presumption of corporate separateness.


"Courts have held, however, that factors such as sole ownership, overlapping directors, consolidated financial statements, and reference to the subsidiary as a department are insufficient to establish the type of day-to-day control necessary to disregard corporate separateness."


Context: . For the argument that reliance on IRS rulings and audits constitutes reasonable cause, see H.

Fort Flowers Found., Inc. v. Comm’r, 72 T.C. 399, 410-11 (1979) (tax exempt organization had reasonable cause not to file return because of IRS audit findings); Gilmore v. United States, 443 F.Supp. 91, 98-99 (D.Md.1977) (employer had reasonable cause not to file returns under FICA and FUTA because of previous IRS audit determinations); cf. Posey v. United States, 449 F.2d 228, 234 (5th Cir.1971) (taxpayer cannot establish reasonable cause based upon purported reliance on advice from IRS); United States v. Red Stripe, Inc., 792 F.Supp. 1338, 1345 (E.D.N.Y.1992).


employer had reasonable cause not to file returns under FICA and FUTA because of previous IRS audit determinations


Context: There must be a reasonable probability that the disclosure of evidence would have changed result sufficient to undermine confidence in the outcome of the trial, however.

Bagley, 473 U.S. at 682, 105 S.Ct. 3375; Jean v. Rice, 945 F.2d 82 (4th Cir.1991) (concluding that the failure to turn over audio tapes and accompanying records of hypnosis session is a Brady violation); McDowell v. Dixon, 858 F.2d 945 (4th Cir.1988) (finding that the prosecutor’s failure to turn over exculpatory identification evidence created a reasonable probability that outcome would have been different where no physical evidence linked defendant to crime), cert. denied, 489 U.S. 1033, 109 S.Ct. 1172, 103 L.Ed.2d 230 (1989); see also Maynard v. Dixon, 943 F.2d 407 (4th Cir.1991) (finding the exculpatory evidence was not material), cert. denied, 502 U.S. 1110, 112 S.Ct. 1211, 117 L.Ed.2d 450 (1992); United States v. Curtis, 931 F.2d 1011 (4th Cir.) (same), cert. denied, 502 U.S. 881, 112 S.Ct. 230, 116 L.Ed.2d 186 (1991); United U.S. v. Wilson, 901 F.2d 378 (4th Cir.1990) (same); Brown v. Dixon, 891 F.2d 490 (4th Cir.1989) (determining that the refusal to allow defense counsel to view crime scene was not prejudicial under Bagley), cert. denied, 495 U.S. 953, 110 S.Ct. 2220, 109 L.Ed.2d 545 (1990); United States v. Powell, 886 F.2d 81 (4th Cir.1989) (holding that, although the government has a duty to make good faith effort to discover and disclose alleged Brady material, a failure to abide by this requirement will not require reversal where defendant unable to show information sought was material), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).


holding that, although the government has a duty to make good faith effort to discover and disclose alleged Brady material, a failure to abide by this requirement will not require reversal where defendant unable to show information sought was material


finding that the prosecutor's failure to turn over exculpatory identification evidence created a reasonable probability that outcome would have been different where no physical evidence linked defendant to crime