Context: Congress specifically provided that, if a sentence is imposed for a failure to appear count, it must be "consecutive to the sentence of imprisonment for any other offense." 18 U.S.C. SS 3146(b)(2). The intent of the statute is clear: failure to appear for a court ordered proceeding is a serious crime and should be deterred by the imposition of a separate penalty through a consecutive sentence. The consecutive sentencing requirement of the statute is in conflict with Commentary 3 to U.S.S.G SS 2J1.6. The statute's requirement of a consecutive sentence, therefore, prevails over the Sentencing Guidelines.

But see United States v. Pardo, 25 F.3d 1187, 1193-94 (3d Cir.1994) (treating failure to appear as obstruction of justice enhancement to underlying fraud offense by applying grouping rules).

"[Ejvery appellate court that has considered this question has ruled that a trial court has no discretion to ignore the directive for consecutive sentences that the [firearms sentencing] statute contains."

See Packer, 70 F.3d at 360 (holding that 18 U.S.C. § 3146(b)(2) prevails over Commentary 3 to U.S.S.G § 2J1.6, because the commentary defeats the statute’s intent); cf. United States v. Vue, 13 F.3d 1206, 1214 (8th Cir.1994) (“[Ejvery appellate court that has considered this question has ruled that a trial court has no discretion to ignore the directive for consecutive sentences that the [firearms sentencing] statute contains.”); United States v. Schweitzer 960 F.2d 405, 408 (5th Cir.1992) (“All of the United States Courts of Appeal have agreed that statutorily mandated sentences ... prevail over the guidelines when in apparent conflict.”), cert. denied, 506 U.S. 1003, 113 S.Ct. 609, 121 L.Ed.2d 544 (1992).


"All of the United States Courts of Appeal have agreed that statutorily mandated sentences ... prevail over the guidelines when in apparent conflict."


Context: We decline Chase's invitation to conflate the two transfers made by Lee in the refinancing transaction and treat them as one for purposes of applying the earmarking defense. To do so would ignore what actually occurred in the transaction and disregard the Bankruptcy Code's plain meaning.

"The recording of a mortgage constitutes a transfer of an interest in the subject property for purposes of SS 547."

See also In re Lewis, 398 F.3d at 746 (“The recording of a mortgage constitutes a transfer of an interest in the subject property for purposes of § 547.”).

"[T]he earmarking concept does not provide [the refinancer] an escape from the plain language of [the Bankruptcy Code] in the case of a belatedly-perfected transfer of a security interest."

See In re Lazarus, 478 F.3d at 16 (“[T]he earmarking concept does not provide [the refinancer] an escape from the plain language of [the Bankruptcy Code] in the case of a belatedly-perfected transfer of a security interest.”).


Context: Furthermore, assuming, arguendo, that Plaintiffs demographic numbers are accurate, the. WIC Program staffs racial breakdown alone "does not make it more or less likely that [Defendants] discriminated against [Plaintiff] because of her race."

Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d Cir.1999) (finding statistical analysis that failed to account for major variables insufficient to support inference of discrimination); see also Hollander v. American Cyanamid Co., 895 F.2d 80, 83 (2d Cir.1990) (finding statistical report’s “inference of [age] discrimination solely on the basis of the raw numbers is impermissible in the absence of any attempt to account for other causes of the ... anomaly”); Baron v. New York City Dep’t of Educ., No. 06-CV-2816, 2009 WL 1938975, at *6, 2009 U.S. Dist. LEXIS 57515, at *16 (E.D.N.Y.

finding statistical report's "inference of [age] discrimination solely on the basis of the raw numbers is impermissible in the absence of any attempt to account for other causes of the ... anomaly"


Context: While the Second Circuit has adopted a relatively broad interpretation of which statements may "relate" to a witness's direct testimony, I do not understand it to extend to the statements cited by El-Hage. Although certain statements useful for impeaching a witness may, under Second Circuit authority, relate to the witness's testimony, such statements appear to be limited to those that might impeach a witness for bias, interest, faulty memory, or some similar reason.

"a statement may 'relate,' within the meaning of [the Jencks Act], not only to the witness' factual narrative, but also to impeachment of his direct testimony by showing bias and interest."

See James, 609 F.2d at 48-49 (“a statement may ‘relate,’ within the meaning of [the Jencks Act], not only to the witness’ factual narrative, but also to impeachment of his direct testimony by showing bias and interest.”) (emphasis added); see also Borelli, 336 F.2d at 380 (“[w]e can see no reason why. a statement that would support impeachment for bias and interest does not ‘relate’ to the witness’ testimony as much as a statement permitting impeachment for faulty memory.”).

"[w]e can see no reason why. a statement that would support impeachment for bias and interest does not 'relate' to the witness' testimony as much as a statement permitting impeachment for faulty memory."


Context: To properly state a violation under any of the provisions of SS 1991(A), a complaint must identify "each alleged untrue statement or material omission and the reason or reasons why the statement or omission is misleading or the omission is material." Ariz.Rev.Stat. SS 44-2082(A); see Fed. R.Civ.P. 9(b) (requiring complainants to state with particularity the circumstances constituting fraud or mistake). Similarly, a complaint must set forth facts suggesting that each Defendant made the misrepresentations at issue, or at least had a duty to disclose the facts necessary to make the statement made, in light of the circumstances, not misleading.

"When an allegation of fraud ... is based on nondisclosure, there can be no fraud absent a duty to speak."

See Dunahay v. Struzik, 96 Ariz. 246, 249, 393 P.2d 930, 933 (1964) (“While Fraud may be committed by the failure to speak, a duty to speak must be imposed.”); see also Cent. Bank of Denver, 511 U.S. at 174, 114 S.Ct. 1439 (1994) (“When an allegation of fraud ... is based on nondisclosure, there can be no fraud absent a duty to speak.”) (quotation omitted).

"While Fraud may be committed by the failure to speak, a duty to speak must be imposed."


Context: . Although the Court's decision in Moses specifically mentioned only sections 3 and 4 of the FAA, section 10 also does not establish an independent jurisdictional basis.

"9 U.S.C. SS 10 does not provide an independent jurisdictional basis for filing suit in federal court."

See Smith v. Rush Retail Ctrs., Inc., 360 F.3d 504, 505 & n. 6 (5th Cir.2004) (holding that section 10 does not confer subject matter jurisdiction and listing cases from D.C., Second, Sixth, Seventh, Ninth and Eleventh Circuits holding same); see also Pinnavaia v. Nat’l Arbitration Forum, Inc., 122 Fed.Appx. 862 (8th Cir.2004) (per curium) ("9 U.S.C. § 10 does not provide an independent jurisdictional basis for filing suit in federal court.”).


Context: Nonetheless, pertinent to our holding in this case, we take the opportunity to acknowledge that although some arbitration standards apply in processing appraisal results, Minnesota recognizes a distinction between appraisal and arbitration. Arbitrators are empowered to determine not only issues of fact, but also questions of law. In contrast, appraisers do not determine liability; rather, they make valuation determinations.

holding that appraisers' finding that loss was not covered under the policy was a decision on a question of law not within the province of the appraisers

See Johnson, 732 N.W.2d at 346 (“It is well settled that appraisal does not determine liability under a policy. Liability depends on a judicial determination.”); see also Mork, 230 Minn. at 384, 42 N.W.2d at 35 (holding that appraisers’ finding that loss was not covered under the policy was a decision on a question of law not within the province of the appraisers).

"It is well settled that appraisal does not determine liability under a policy. Liability depends on a judicial determination."


Context: Thus, in showing reduction of earning capacity, the plaintiff may attempt to prove an impairment of his ability to perform the requirements of an occupation in which he has been employed and/or an occupation in which he likely would have been employed, but for the accident.

Compare Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982) (loss of earning capacity based on plaintiff's prior employment as truck driver) with Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961) (lost earning capacity of 18 year old student based on evidence of his ambitions to be a school teacher).

See also Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985) (where plaintiff had not been regularly employed as beautician for 16 years prior to the accident, but had maintained her license and skills as a beautician, practiced her trade on a casual, part-time basis, and engaged in discussions pointing toward a return to that occupation, question of impairment of earning capacity was properly submitted to the jury); Gottlob v. Hillegas, 195 Pa.Super. 453, 171 A.2d 868 (1961) (issue of reduced earning capacity properly excluded where plaintiff offered no evidence that she had ever been gainfully employed or that she would be employed in the future).


issue of reduced earning capacity properly excluded where plaintiff offered no evidence that she had ever been gainfully employed or that she would be employed in the future


lost earning capacity of 18 year old student based on evidence of his ambitions to be a school teacher


Context: The district court, on Feres grounds, denied Taber's motion to amend his complaint, and Taber has abandoned those claims on appeal. Thus, the tortfeasor-related discipline issues that concerned us in Bozeman and Sanchez III are simply not present here. Instead, in this case, the government's liability turns on the question of whether Maine was negligent in driving while he was intoxicated.

comparing the liability theory in Bozeman to the facts of Sanchez and remanding the case for further Feres consideration because "it [did] not appear on the record that the district court [would] find it inevitably necessary to inquire into Marine Corps policies for staffing and operating its auto repair facilities"

See Shearer, 473 U.S. at 58, 105 S.Ct. at 3043 (distinguishing “negligence alleged in the operation of a vehicle” from claims that raise important disciplinary considerations); cf. Sanchez v. United States, 813 F.2d 593, 595-96 (2d Cir.1987) (“Sanchez I ”) (comparing the liability theory in Bozeman to the facts of Sanchez and remanding the case for further Feres consideration because “it [did] not appear on the record that the district court [would] find it inevitably necessary to inquire into Marine Corps policies for staffing and operating its auto repair facilities”).

distinguishing "negligence alleged in the operation of a vehicle" from claims that raise important disciplinary considerations


Context: In interpreting the anti-SLAPP statute, the California Supreme Court has insisted on its language, including its preamble.

See Equilon Enters., 124 Cal.Rptr.2d 507, 52 P.3d at 688 (“When on previous occasions we have construed the anti-SLAPP statute, we have done so strictly by its terms ____”); id. at 689 n. 3 (discussing the addition of the “broadly construed” language to the statutory preamble as a correction of prior judicial decisions adopting narrowing constructions); Navellier, 124 Cal.Rptr.2d 530, 52 P.3d at 711 (rejecting a narrowing construction of the statute because it “would contravene the Legislature’s express command that section 425.16 ‘shall be construed broadly’ ” (quoting Cal.Civ.Proc.Code § 425.16(a))); see also Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969 P.2d 564, 568-73 (1999) (construing plain language of the statute in light of the preamble).

"When on previous occasions we have construed the anti-SLAPP statute, we have done so strictly by its terms ____"


Context: As can be seen from section 1, and as the Ninth Circuit has noted, the language in the CAA is similar to that of section 1255(a).

"The language of the [CAA] mirrors that of SS 1255(a

Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1118 (9th Cir.2007) (“Cuban Adjustment Act ... uses language similar to § 1255(a).”); see also Ibaira v. Swaci na, No. 09-22354, 2009 WL 4506544, at *1 (S.D.Fla.2009) (“The language of the [CAA] mirrors that of § 1255(a)[.]”). And, as can be seen from section 4, the CAA expressly provides that it is not intended to interfere with the administration of the INA, or any other immigration-related law.

"Cuban Adjustment Act ... uses language similar to SS 1255(a


Context: . Beltran-Flores does not challenge the agency's finding that he failed to establish past persecution, and substantial evidence supports the agency s finding that he failed to establish a nexus between his feared future harm and a protected ground.

See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.2009) (under the REAL ID Act, applicant must prove a protected ground is at least “one central reason” for persecution); see also Pagayon v. Holder, 675 F.3d 1182, 1191 (9th Cir.2011) (a personal dispute, standing alone, does not constitute persecution based on a protected ground).

under the REAL ID Act, applicant must prove a protected ground is at least "one central reason" for persecution


Context: To avoid the reach of that statute, the government appears to lean heavily on statutory construction arguments that fail to confront the plain language of the statute, and to rest rather lightly on what seems to me the more persuasive position: that Padilla in fact is detained "pursuant to an Act of Congress." Thus, the government argues that reading SS 4001(a) to cov er Padilla's detention would bring that section in conflict with Article II, section 2, clause 1 of the Constitution, which makes the President "Commander in Chief of the Army and Navy of the United States," U.S. Const., art. 2, SS 2, cl. 1, and has been interpreted to grant the President independent authority to respond to an armed attack against the United States.

"If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force ... without waiting for any special legislative authority."

See The Prize Cases, 67 U.S. at 668, 2 Black 635 (“If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force ... without waiting for any special legislative authority.”); see also Hamdi v. Rumsfeld, 296 F.3d at 281-82 (“The authority to capture those who take up arms against America belongs to the Commander in Chief under Article II, Section II.”); Campbell 203 F.3d at 27 (Silberman, J., concurring) (collecting authorities for the proposition that “the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization”).

"The authority to capture those who take up arms against America belongs to the Commander in Chief under Article II, Section II."


Context: However, the account statements indicated, at most, that the defendants had failed to fulfill their oral promise that Betz could withdraw $15,000 per month from her account without depleting the principal. As a matter of law, we cannot say that a declining account balance, in and of itself, would have spurred a reasonable investor to further inquire whether he or she had been defrauded.

"This court has held that financial problems alone are generally insufficient to suggest fraud."

See Gray, 82 F.3d at 881 (“It is well settled that poor financial performance, standing alone, does not necessarily suggest securities fraud ..., but could also be explained by poor management, general market conditions, or other events unrelated to fraud, creating a jury question on inquiry notice.”); see also Livid Holdings, 416 F.3d at 951 (“This court has held that financial problems alone are generally insufficient to suggest fraud.”).

"It is well settled that poor financial performance, standing alone, does not necessarily suggest securities fraud ..., but could also be explained by poor management, general market conditions, or other events unrelated to fraud, creating a jury question on inquiry notice."


Context: Op. at 272 n. 3. With all respect, I believe that this reading of Wiley conflicts with Howard Johnson's treatment of Wiley. In Howard Johnson, the Supreme Court applied the analytical precepts of Wiley, interpreting Wiley as making "substantial continuity in the identity of the business enterprise" the centerpiece of the analysis of when a successor can be bound to arbitrate under a predecessor's CBA. The Court held in Howard Johnson that the successor corporation was not bound to arbitrate under the predecessor's CBA because there was insufficient substantial continuity in the business enterprise, and the clear implication of the opinion is that, if there had been such substantial continuity, then the successor would have been so bound. I see nothing in Howard Johnson that would lead me to the conclusion that the Court would have held that the successor was not bound to arbitrate even if there had been such substantial continuity, because the "other factors" present in Wiley were missing there.

"Since there was plainly no substantial continuity of identity in the work force hired by Howard Johnson with that of the Grissoms, and no express or implied assumption of the agreement to arbitrate, the courts below erred in compelling the Company to arbitrate the extent of its obligations to the former Grissom employees."

See Howard Johnson, 417 U.S. at 264-65, 94 S.Ct. 2236 (“Since there was plainly no substantial continuity of identity in the work force hired by Howard Johnson with that of the Grissoms, and no express or implied assumption of the agreement to arbitrate, the courts below erred in compelling the Company to arbitrate the extent of its obligations to the former Grissom employees.”); see also id. at 258, 94 S.Ct. 2236 {“Even more important, in Wiley the surviving corporation hired all of the employees of the disappearing corporation.”) (emphasis added); id. at 263, 94 S.Ct. 2236 (noting that the Court's holding "is reflected in the emphasis most of the lower courts have placed on whether the successor employer hires a majority of the predecessor's employees in determining the legal obligations of the successor in § 301 suits under Wiley").

noting that the Court's holding "is reflected in the emphasis most of the lower courts have placed on whether the successor employer hires a majority of the predecessor's employees in determining the legal obligations of the successor in SS 301 suits under Wiley"


Context: Charles did not timely petition for review of the BIA's July 2012 decision, which found her ineligible for a waiver of inadmissibility under Immigration and Nationality Act ("INA") SS 212(h) for having been convicted of an aggravated felony. Accordingly, her challenges to those findings are not properly before the Court.

noting that the Court is " 'precluded from passing on the merits of the underlying [] proceedings' " in a petition for review from the denial of a motion to reconsider

See Jin Ming Liu, 439 F.3d at 111 (noting that the Court is “ ‘precluded from passing on the merits of the underlying [] proceedings’ ” in a petition for review from the denial of a motion to reconsider) (quoting Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005)); see also Stone v. INS, 514 U.S. 386. 405. 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (requiring separate timely petitions for review from final removal order and denial of a motion to reconsider or reopen).


Context: In Forcey's second point of error, he argues that his plea was rendered involuntary when the trial court rejected the plea bargain by imposing a fine greater than the plea agreement's maximum of $2,000. We have the authority to modify the judgment of the trial court on appeal, see Tex.R.App. P. 43.2(b), including modifying punishment to accurately reflect the intent of the trial court.

modifying judgment so that sentence was within applicable range of punishment where trial court's intent to impose maximum sentence was clear from record

See McCray v. State, 876 S.W.2d 214, 217 (Tex.App.-Beaumont 1994, no pet.) (modifying judgment so that sentence was within applicable range of punishment where trial court’s intent to impose maximum sentence was clear from record); see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993) (modifying judgment to reflect conviction of lesser-included offense); McGill v. State, 200 S.W.3d 325, 329 (Tex.App.-Dallas 2006, no pet.) (modifying judgment to delete deadly-weapon finding not supported by evidence). In its findings of fact and conclusions of law issued in connection with Forcey’s habeas petition, the trial court recommended that the sentence be modified to “set the fine at the stated $2,000.00 as the trial court intended.”


Context: SunTrust argues that Johnson, and the majority view in general, fails to give prop er weight to Congress' intent to confer "favorable treatment" upon residential mortgagees in an effort to "encourage the flow of capital into the home lending market." Although Johnson did not explicitly discuss Justice Stevens' brief concurrence, several Courts of Appeals that have opined on the legislative history have concluded that the favorable treatment afforded residential mortgagees under SS 1322(b)(2) extends only to first or purchase-money mortgages.

"Furthermore, although Justice Stevens recognized a congressional policy in favor of promoting home lending, we join other courts in interpreting this as applying to first or purchase-money mortgages."

See Zimmer, 313 F.3d at 1227 (“Furthermore, although Justice Stevens recognized a congressional policy in favor of promoting home lending, we join other courts in interpreting this as applying to first or purchase-money mortgages.”); Bartee, 212 F.3d at 294 (reviewing the legislative history of § 1322(b)(2) and concluding that “[plassage of [the anti-modification provision] demonstrates that Congress intends to maintain the protections afforded home mortgage lenders, while preventing ‘thinly disguised personal’ lending from taking advantage of those protections.”); see also Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 840 (1st Cir. BAP 2000) (“[Flailing to differentiate between true mortgage lending and the practice (seen by many as predatory) of obtaining mortgages on already oversecured property in support of the collection of otherwise unsecured dischargeable debt would do far more damage to the goals of Congress in enacting the anti-modification provision of § 1322(b)(2)”).

"[Flailing to differentiate between true mortgage lending and the practice (seen by many as predatory


Context: The trial court found that William paid no support despite having the ability to do so. However, it concluded that William's consent was required because "[tjhere was no Court order or other requirement that [William] pay support for the child." App. at 3. To the contrary, this Court has held that the common law duty of a parent to support his child satisfies the statute.

"Irvin's failure to provide support for a child whom he acknowledged as his own establishes that he has failed to support his child 'as required by law or judicial decree.' "

In re Adoption of M.A.S., 815 N.E.2d 216, 220-21 (Ind.Ct.App.2004); In re Adoption of A.K.S., 713 N.E.2d 896, 899 (Ind.Ct.App.1999), trans. denied; and Irvin v. Hood, 712 N.E.2d 1012, 1014 (Ind.Ct.App.1999) (“Irvin’s failure to provide support for a child whom he acknowledged as his own establishes that he has failed to support his child ‘as required by law or judicial decree.’ ”).

"child support obligations arise out of a natural duty of the parent"

See also Pettit v. Pettit, 626 N.E.2d 444, 445 (Ind.1993) (“child support obligations arise out of a natural duty of the parent”).


Context: It elicited information about the prospective jurors' habits, activities, work experiences, and families that was far more extensive and detailed than the generalizations appellants might have drawn from jurors' mere names and addresses. Thus, it sufficed to enable appellants to make effective use of their peremptory challenges.

agreeing with district court that written questionnaire addressing juror demographics left counsel "in a much better position to assess the suitability of prospective jurors in this case than in most other trials, criminal or civil"

See Scarfo, 850 F.2d at 1022-23 (agreeing with district court that written questionnaire addressing juror demographics left counsel “in a much better position to assess the suitability of prospective jurors in this case than in most other trials, criminal or civil”) (internal quotations omitted); see also Crockett, 979 F.2d at 1216 (“[A] defendant’s fundamental right to an unbiased jury is adequately protected by the court’s conduct of a voir dire designed to uncover bias as to issues in the cases and as to the defendant himself.”) (internal quotations omitted); Paccione, 949 F.2d at 1192 (same).

"[A] defendant's fundamental right to an unbiased jury is adequately protected by the court's conduct of a voir dire designed to uncover bias as to issues in the cases and as to the defendant himself."


Context: Although Gaskin now states that he would have wanted counsel to discuss the relevant aggravators and mitigators at more length, this does not necessarily render trial counsel ineffective.

"The standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result."

See Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) (“The standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result.”); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“Even the best criminal defense attorneys would not defend a particular client in the same way.”).

"Even the best criminal defense attorneys would not defend a particular client in the same way."


Context: I respectfully dissent. Our courts have consistently allowed recovery of mental anguish damages for the negligent handling of a dead body.

any interfer ence with next-of-kin's right to preserve and bury the body by mutilating it is a wrong for which the family can maintain a cause of action for damages, aff'd, 182 Tex. 280, 121 S.W.2d 986 (1938

Terrill v. Harbin, 376 S.W.2d 945, 945-46 (Tex.Civ.App.—Eastland 1964, writ dism’d); Love v. Aetna Cas. & Sur. Co., 99 S.W.2d 646, 650 (Tex.Civ.App.—Beaumont 1936) (any interfer ence with next-of-kin’s right to preserve and bury the body by mutilating it is a wrong for which the family can maintain a cause of action for damages, aff'd, 182 Tex. 280, 121 S.W.2d 986 (1938); Burnett v. Surratt, 67 S.W.2d 1041, 1042 (Tex.Civ.App.—Dallas 1934) writ ref'd) (the right to bury a corpse and preserve its remains is a legal right recognized by the courts); see also St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 654 (Tex.1987) (Spears, J., concurring) (“This state has long recognized that establishing the mishandling of a corpse and establishing a feeling of closeness or love between the deceased and the one asking for damages is sufficient for a jury to consider mental anguish.”).

"This state has long recognized that establishing the mishandling of a corpse and establishing a feeling of closeness or love between the deceased and the one asking for damages is sufficient for a jury to consider mental anguish."


the right to bury a corpse and preserve its remains is a legal right recognized by the courts


Context: (Internal quotation marks omitted.) All photographs were of men with facial hair and skin coloring similar to that of the defendant.

See State v. Taylor, 239 Conn. 481, 499, 687 A.2d 489 (1996) (identification not unnecessarily suggestive where defendant’s photograph one of two that was glossier, brighter than others in array), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); State v. Plaza, 23 Conn. App. 543, 546-47, 583 A.2d 925 (1990) (identification not unnecessarily suggestive where defendant’s photograph larger than all others in array and against different background), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991); cf. State v. Evans, 200 Conn. 350, 355-56, 511 A.2d 1006 (1986) (identification unnecessarily suggestive where array of black and white photographs preceded single color photograph of defendant). Even if the detectives had implied that the defendant would be in the array, that factor does not on its own make it unnecessarily suggestive.

identification not unnecessarily suggestive where defendant's photograph one of two that was glossier, brighter than others in array


identification not unnecessarily suggestive where defendant's photograph larger than all others in array and against different background


Context: But assuming it was, we are faced with Coreys argument that the admonishment might have caused a compromise verdict because it could infer the consequences of a mistrial from juror misconduct might also be the consequences of a hung jury. We are not firmly convinced this is what happened because "jnjothing in the record demonstrates the juiy was near deadlock, deadlocked, pressured to reach a verdict, or concerned about the implications of another trial."

State v. Warrior, 294 Kan. 484, 515, 277 P.3d 1111 (2012) (affirming conviction despite Salts error because there was substantial evidence of guilt and defendant did not explain why instruction made difference in deliberations); see Salts, 288 Kan. 263 (juiy would not have reached different verdict despite erroneous instruction that jury’s failure to reach decision would leave charges undecided, State would decide whether to resubmit to different jury, and another trial would be burden on both sides).

juiy would not have reached different verdict despite erroneous instruction that jury's failure to reach decision would leave charges undecided, State would decide whether to resubmit to different jury, and another trial would be burden on both sides


Context: After conducting a thorough review of the evidence in the record, the Commission ultimately decided its resources would be better utilized elsewhere, a decision entirely within its discretion.

noting the FEC's decision to dismiss La Botz's complaint could have been justified under its prosecutorial discretion

See Stark v. FEC, 683 F.Supp. 836, 840 (D.D.C.1988) (concluding it is “surely committed to the [FEC’s] discretion to determine where and when to commit its investigative resources”); see also La Botz, 889 F.Supp.2d at 63 n. 6 (noting the FEC’s decision to dismiss La Botz’s complaint could have been justified under its prosecutorial discretion).

concluding it is "surely committed to the [FEC's] discretion to determine where and when to commit its investigative resources"


Context: . The only item that had traveled in interstate or foreign commerce in this case was the China-manufactured cell phone he used to take the images, but Ruggiero does not appear to contend that SS 2251(a) is unconstitutional as applied to him for lack of a sufficient nexus to foreign commerce. If he does, we reject that contention.

See Gonzales v. Raich, 545 U.S. 1, 9, 17, 125 S.Ct. 2195, 2201, 2205, 162 L.Ed.2d 1 (2005) (holding that Congress may regulate purely local intrastate activities if they are part of an "economic ‘class of activities' that have a substantial effect on interstate commerce”); see also United States v. Forrest, 429 F.3d 73, 76-79 (4th Cir.2005) (applying the Raich rationale to uphold a defendant's convictions for production and possession of child pornography that itself had never crossed state lines, but that was produced using cameras that were manufactured outside the state); United States v. Jeronimo-Bautista, 425 F.3d 1266, 1273 (10th Cir.2005) (same).

holding that Congress may regulate purely local intrastate activities if they are part of an "economic 'class of activities' that have a substantial effect on interstate commerce"


Context: As to the first argument, the Fifth Circuit has never recognized the legitimacy of a "Chinese Wall" approach.

stating that "[t]he Fifth Circuit has never recognized the possibility of a 'Chinese Wall' to rebut [the] presumption" that "[t]he Rules presume that confidences obtained by an individual lawyer are shared with members of his or her firm"

Hampton, 2001 WL 1444933, at *2 (stating that “[t]he Fifth Circuit has never recognized the possibility of a ‘Chinese Wall’ to rebut [the] presumption” that “[t]he Rules presume that confidences obtained by an individual lawyer are shared with members of his or her firm”); see also Green, 1998 WL 24424, at *3 (stating that “[t]he Fifth Circuit has never recognized the possibility of a ‘Chinese Wall’ to rebut this presumption”).

stating that "[t]he Fifth Circuit has never recognized the possibility of a 'Chinese Wall' to rebut this presumption"


Context: In light of Colombia's tumultuous and violent relationship with NTOs, and in turn with the United States' efforts to infiltrate and control NTOs, working for the DEA would undoubtedly be considered a political opinion by the Cali cartel.

holding that "Briones's activity as a confidential informer who sided with the Phillipine military in a conflict that was political at its core certainly would be perceived as a political act by the group informed upon.... "

See Sagaydak, 405 F.3d at 1043 (holding that uncovering corruption in a private organization was “undeniably a political statement in the context of [Ukraine’s] evolving politics.”); see also Briones v. INS, 175 F.3d 727, 729 (9th Cir.1999) (en banc) (holding that “Briones’s activity as a confidential informer who sided with the Phillipine military in a conflict that was political at its core certainly would be perceived as a political act by the group informed upon.... ”).

holding that uncovering corruption in a private organization was "undeniably a political statement in the context of [Ukraine's] evolving politics."


Context: At the hearing on the motion to dismiss, the district court did not discuss Mr. Wright's IFP status, or what Mr. Wright should have done -- but failed to do -- to cause process to be served. It therefore is unclear to us how Mr. Wright was responsible for the delay in service. Under these circumstances, we cannot say whether the district court abused its discretion in concluding that Mr. Wright had not shown good cause for the untimely service: if the delay in service was the result of a delay by court staff or the USMS in fulfilling their obligations, Mr. Wright's complaint should not have been dismissed under Rule 4(m).

See Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir.1996) (once IFP plaintiff has taken reasonable steps to identify defendants, court must issue plaintiffs process to USMS, who in turn must effectuate service); cf. Moore v. Jackson, 123 F.3d 1082, 1085-86 (8th Cir.1997) (per curiam) (where inmate’s complaint listed all defendants’ addresses, it was improperly dismissed under Rule 4(m) for lack of timely service, as completing waiver-of-service forms was component of “all process” and “all duties” required by court officers, and was USMS’s responsibility); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994) (where prisoner has furnished information necessary to identify defendant, USMS’s failure to effect service is automatically good cause under Rule 4(m)), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

where inmate's complaint listed all defendants' addresses, it was improperly dismissed under Rule 4(m


where prisoner has furnished information necessary to identify defendant, USMS's failure to effect service is automatically good cause under Rule 4(m


Context: The reasoning behind, enforcing direct appeal waivers mandates that the SS 2255 waiver be upheld and enforced. The Fourth Circuit has clearly indicated the validity of direct appeal waivers, and it has not questioned the validity of SS 2255 waivers that have come before it.

interpreting a waiver in a plea agreement as waiving the defendant's rights to launch a collateral attack under SS 2255 on any grounds other than ineffective assistance of counsel

See, e.g., United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.1994) (interpreting a waiver in a plea agreement as waiving the defendant’s rights to launch a collateral attack under § 2255 on any grounds other than ineffective assistance of counsel); cf. Hailstock v. United States, 2001 WL 1131989, at *2 (S.D.N.Y.2001) (upholding a § 2255 waiver because Second Circuit law clearly upholds waivers of direct appeals and had not struck down § 2255 waivers that have come before it).

upholding a SS 2255 waiver because Second Circuit law clearly upholds waivers of direct appeals and had not struck down SS 2255 waivers that have come before it


Context: . To the contrary, although the case law on this point is sparse in this circuit, the only authorities we have found indicate that the crime and the enhancements require an intentional act, not merely a reckless or accidental one.

SS111 requires "the criminal intent to do the acts therein specified"

See United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (§111 requires “the criminal intent to do the acts therein specified”); United States v. Acosta-Sierra, 690 F.3d 1111, 1123 (9th Cir. 2012) (under § 111, defendant must have acted "knowingly and intentionally and forcibly”); United States v. Arrington, 309 F.3d 40, 44 (D.C. Cir. 2002) (weapon must be used intentionally under § 111(b)); cf. Popal v. Gonzales, 416 F.3d 249, 254 n.5 (3d Cir. 2005) (distinguishing assault under § 111, which requires willfulness, from Pennsylvania simple assault, which can be accomplished recklessly).

distinguishing assault under SS 111, which requires willfulness, from Pennsylvania simple assault, which can be accomplished recklessly


under SS 111, defendant must have acted "knowingly and intentionally and forcibly"


Context: For example, the Commission argues throughout its brief that the exercise is only relevant to its licensing decision to the extent it indicates that emergency preparedness plans are fundamentally flawed, and is not relevant as to minor or ad hoe problems occurring on the exercise day. Today, we in no way restrict the Commission's authority to adopt this as a substantive licensing standard.

"broad responsibility ... reposed in [the NRC]" justified its decision that the security of a power plant from enemy takeover is not relevant to licensing

See Siegel, 400 F.2d at 783 (“broad responsibility ... reposed in [the NRC]” justified its decision that the security of a power plant from enemy takeover is not relevant to licensing); see also North Anna Environmental Coalition v. NRC, 533 F.2d 655, 689-90 (D.C.Cir.1976) (upholding decision in a particular licensing proceeding that siting of plant on geological fault was not unduly unsafe); Westinghouse Electric Corp. v. United States, 598 F.2d 759, 771-73 (3d Cir.1979) (NRC had broad discretion to impose moratorium on decisionmaking regarding recycling of nuclear fuel in light of uncertainty about efficacy of recycling). Under that standard, the NRC could summarily dismiss any claim that did not raise genuine issues of material fact about the fundamental nature of the emergency preparedness plans.


NRC had broad discretion to impose moratorium on decisionmaking regarding recycling of nuclear fuel in light of uncertainty about efficacy of recycling


Context: It is undisputed that Adams threatened each of his six carjacking victims with a gun. We must therefore determine whether sufficient evidence existed from which the jury could have determined that Adams's threats were actual rather than empty, and that they were indicative of his conditional intent to seriously harm or kill his victims. We think making this determination must require, at the least, a showing that Adams could have carried out his threats to harm his victims.

applying conditional intent doctrine to those cases where the assailant,' "with the present ability to destroy life or do great bodily harm," makes a threat and an unlawful demand

See Holloway, 526 U.S. at 11-12, 119 S.Ct. 966 (requiring the United States to prove that “the defendant would have at least attempted” to carry out his intimidating threat to kill or cause serious bodily harm); see also Connors, 97 N.E. at 647 (applying conditional intent doctrine to those cases where the assailant,' “with the present ability to destroy life or do great bodily harm,” makes a threat and an unlawful demand) (emphasis added).

requiring the United States to prove that "the defendant would have at least attempted" to carry out his intimidating threat to kill or cause serious bodily harm


Context: With only one exception, the discretionary function exception to the FTCA has been incorporated into the SIAA by all of the circuit courts that have considered the issue.

See, e.g., Wiggins v. United States, 799 F.2d 962, 966 (5th Cir.1986); Williams v. United States, 747 F.2d 700, 700 (11th Cir.1984) (adopting district court opinion reported at 581 F.Supp. 847, 852 (S.D.Ga. 1983)); Gemp v. United States, 684 F.2d 404, 408 (6th Cir.1982); Estate of Callas v. United States, 682 F.2d 613, 620-21 (7th Cir.1982); Canadian Transport Co. v. United States, 663 F.2d 1081, 1085 (D.C. Cir.1980); Bearce v. United States, 614 F.2d 556, 560 (7th Cir.), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980); Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977); see also Chute v. United States, 610 F.2d 7, 12-13 (1st Cir.1979) (reaffirming principle after noting Fourth Circuit authority to the contrary), cert. denied, 446 U.S. 936, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980).


Context: Regardless which method is employed to plead scienter, the PSLRA mandates that plaintiffs state with particularity facts that give rise to a strong inference that the defendant acted with the required state of mind. See 15 U.S.C. SS 78u-4(b)(2). This court must interpret the statute according to the plain meaning of its words. "When a statute does not define its terms, we employ the ordinary meaning of the words."

defining words "facts" and "particularity" in PSLRA by examining dictionary definitions

Silicon Graphics, 183 F.3d at 983 (defining words “facts” and “particularity” in PSLRA by examining dictionary definitions); see Hulsey v. USAir, Inc., 868 F.2d 1423, 1427 (5th Cir.1989) (“Where possible, courts interpret the words of statutes ‘in their ordinary, everyday sense.’ ”).

"Where possible, courts interpret the words of statutes 'in their ordinary, everyday sense.' "


Context: While Plaintiff correctly notes that she is entitled to damages which are separate and distinct from those that may be recovered by the estate, courts applying Florida's Wrongful Death statute have concluded that the named plaintiff may sue only in her capacity as the personal representative of the decedent's estate and that survivors' claims must be brought by the personal representative. See, e.g., Morgan v. Am. Bankers Life Assur.

concluding that after the adoption of Fla. Stat. SS 768.20 survivors may not assert independent claims arising out of a wrongful death and that survivors' claims must be brought through "the medium of a personal representative"

Co. of Fla., 605 So.2d 104 (Fla. 3d DCA 1992) (concluding that after the adoption of Fla. Stat. § 768.20 survivors may not assert independent claims arising out of a wrongful death and that survivors’ claims must be brought through “the medium of a personal representative”); see also Veltmann v. Walpole Pharmacy, Inc., 928 F.Supp. 1161, 1161 (M.D.Fla.1996) (finding that, under Florida law, the real party in interest in a wrongful death action is the personal representative of the decedent’s estate).

finding that, under Florida law, the real party in interest in a wrongful death action is the personal representative of the decedent's estate


Context: Likewise, the evidence she filed in response to UTEP's plea addressed only actions occurring before she filed her EEOC charge. It is axiomatic that UTEP's actions that occurred before Esparza filed her EEOC charge could not have been'caused by the EEOC filing.

plaintiff cannot show a causal link in a retaliation claim when the employer's alleged acts in retaliation occurred long before the plaintiff engaged in any protected activity

See Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256, 263 (Tex.App.-Dallas 2009, pet. denied) (plaintiff cannot show a causal link in a retaliation claim when the employer’s alleged acts in retaliation occurred long before the plaintiff engaged in any protected activity); see also Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 656 (Tex.2013) (in Whistleblower Act claim, plaintiff failed to show his report to law enforcement caused the adverse personnel action, because the personnel action occurred before plaintiffs report to law enforcement).


Context: The courts have uniformly held that, in such circumstances, the inquiry is whether the defendant was prejudiced by the tardy disclosure. If the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed as early as it might have and, indeed, should have been.

See United States v. Nixon, 634 F.2d 306, 311-13 (5th Cir.) (failure to disclose immunity agreement with Government witness; not disclosed to defendant until witness’ testimony), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981); United States v. Campagnuolo, 592 F.2d at 860 (even assuming that Brady overrides Jencks Act, indictment should not have been dismissed because of tardy disclosure of witness’ grand jury testimony containing exculpatory statements); United States v. Decker, 543 F.2d 1102, 1105 (5th Cir.1976) (Government fulfilled its disclosure duty by disclosing information to correct false testimony after witness testified but while still subject to recall), cert. denied, 431 U.S. 906, 97 S.Ct. 1700, 52 L.Ed.2d 390 (1977); see also United States v. Xheka, 704 F.2d 974, 981 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983); United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983) (where Brady material has impeachment value only, disclosure on day witness testifies satisfies due process), cert. denied, — U.S. -, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984); United States v. Pollack, 534 F.2d 964, 973 (D.C.Cir.) (“disclosure by the government must be made at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case ... ”), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976).

even assuming that Brady overrides Jencks Act, indictment should not have been dismissed because of tardy disclosure of witness' grand jury testimony containing exculpatory statements


"disclosure by the government must be made at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case ... "


Government fulfilled its disclosure duty by disclosing information to correct false testimony after witness testified but while still subject to recall


Context: But Turnage has the burden on postconviction to set forth facts entitling him to the relief requested. We have said that to carry this burden petitioners must do more than offer concluso-ry, argumentative assertions, without factual support.

See Rainer, 566 N.W.2d at 695 (holding that anonymous letter was insufficient to entitle petitioner to hearing); see also Morrissey v. State, 286 Minn. 14, 16, 174 N.W.2d 131, 133-34 (1970) (“[PJostconviction procedures * * * do not comprehend that a petitioner may have a full evidentiary hearing on the basis of bald assertions * * *.”). The desire for finality in the criminal justice system is one reason it is appropriate to place this burden on the petitioner who seeks to set aside a conviction. See Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002) (“A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”).

"[PJostconviction procedures * * * do not comprehend that a petitioner may have a full evidentiary hearing on the basis of bald assertions * * *."


Context: If the State had targeted one particular landowner and treated him unfairly, there might be more merit to the claim.

"[I]t ordinarily is, and should be, harder for the government to show that its interests have been substantially advanced by regulation directed at one lone landowner."

See Sheffield, 140 S.W.3d at 676 (“[I]t ordinarily is, and should be, harder for the government to show that its interests have been substantially advanced by regulation directed at one lone landowner.”); Mayhew, 964 S.W.2d at 936; but see Garrett Bros., 528 S.W.2d at 269, 271 (although SARA and the State targeted only the plaintiffs development, SARA was not liable for a taking because of its lack of regulatory authority).


Context: The inquiry does not end there because there are two exceptions to the De-Shaney rule where the state has an affirmative duty to protect individual citizens, the "special relationship" exception and the "state-created danger" exception. First, the state is obligated to protect those individuals in custodial settings where the state has limited an individual's ability to care for himself.

the state has a duty to provide for the well-being of a private individual when the state "takes [that] person into its custody and holds him there against his will."

DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998 (the state has a duty to provide for the well-being of a private individual when the state “takes [that] person into its custody and holds him there against his will.”); see also Buchanan-Moore, 570 F.3d at 827 (“when a state has custody over a person, it must protect him because no alternative avenues of aid exist.”); Paine v. Johnson, 689 F.Supp.2d 1027, 1075 (N.D.Ill.2010) (Kendall, J) (same). In other words, when the state restrains an individual’s freedom through incarceration or institutionalization, that individual can no longer provide for himself, creating a state duty to provide for “basic human needs,” such as food, clothing, shelter, medical care, and safety.

"when a state has custody over a person, it must protect him because no alternative avenues of aid exist."


Context: We are acutely conscious of the deference we must accord to state courts' application of federal law, here, the reasonableness test for unavailability laid down in Ohio v. Roberts. Demanding as the AED-PA "unreasonable application" standard is, the Supreme Court and this court have sometimes held relief to be warranted under that standard.

Texas court's conclusion that jury instructions complied with Supreme Court mandate objectively unreasonable

See Penry v. Johnson, 532 U.S. 782, 803-04, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Texas court’s conclusion that jury instructions complied with Supreme Court mandate objectively unreasonable); Williams v. Taylor, 529 U.S. 362, 397, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (state court decision contrary to and unreasonable application of federal precedent); Johnson v. Gibson, 254 F.3d 1155, 1165-66 (10th Cir.) (state court’s application of federal harmless error standard unreasonable), cert. denied, 534 U.S. 1036, 122 S.Ct. 580, 151 L.Ed.2d 451 (2001); Battenfield v. Gibson, 236 F.3d 1215, 1233-35 (10th Cir.2001) (state court’s application of Strickland standard unreasonable); accord Lewis v. Wilkinson, 307 F.3d 413, 422 (6th Cir.2002) (granting relief under AED-PA for unreasonable application of Confrontation Clause precedent); see also Herrera v. Lemaster, 225 F.3d 1176, 1178 (10th Cir.2000) (state court failure to identify correct rule resulted in decision contrary to federal law), on rehearing en banc, 301 F.3d 1192 (10th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 1266, 154 L.Ed.2d 1035 (2003).


state court decision contrary to and unreasonable application of federal precedent


Context: In this case, the immobile nature of mobile homes subjects tenants to extreme financial loss upon-park closure; at the same time, this immobility makes the rental of pads profitable for the park owner.

park owners in "superior bargaining position" to that of tenants even if no shortage of mobile home spaces exists

See Adamson, 854 F.Supp. at 1488 (park owners in “superior bargaining position” to that of tenants even if no shortage of mobile home spaces exists); see also Yee, 503 U.S. at 523, 112 S.Ct. at 1526 (“Mobile homes are largely immobile as a practical matter, because the cost of moving one is often a significant fraction of the value of the mobile home itself.”).

"Mobile homes are largely immobile as a practical matter, because the cost of moving one is often a significant fraction of the value of the mobile home itself."


Context: This conclusion is fully consistent with general principles of California contract law. See Faigin v. Signature Grp.

"There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results."

Holdings, Inc., 211 Cal.App.4th 726, 150 Cal.Rptr.3d 123, 134 (2012) (“There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.”) (citing Shapiro v. Wells Fargo Realty Advisors, 152 Cal.App.3d 467, 199 Cal.Rptr. 613 (1984)); see also Hill v. State Farm Mut. Auto. Ins. Co., 166 Cal.App.4th 1438, 83 Cal.Rptr.3d 651, 663 (2008) (“Express covenants abrogate the operation of implied covenants so courts will not permit implied agreements to overrule or modify the express contract of the parties.”); Wagner v. Glendale Adventist Med. Ctr., 216 Cal. App.3d 1379, 265 Cal.Rptr. 412 (1989) (holding that there can be no implied contractual term at variance with an express term of a contract). “The reason for the rule is simply that where the parties have freely, fairly and voluntarily bargained for certain benefits in exchange for undertaking certain obligations, it would be inequitable to imply a different liability.”

"Express covenants abrogate the operation of implied covenants so courts will not permit implied agreements to overrule or modify the express contract of the parties."


holding that there can be no implied contractual term at variance with an express term of a contract


Context: Third, although not dispositive on the issue of whether there was discrimination in this case, an issue regarding the legitimacy of the reason provided by DCPS for plaintiffs termination is raised by the subsequent hiring of Rebecca Christian, a woman under the age of 30, who did not have the qualifications the plaintiff had as a social studies teacher, only four months after plaintiff was terminated. If it is true that the Business and Finance Academy had to reduce the number of social studies teachers to one, it is questionable how only four months later it was able to accommodate a second social studies teacher, who happened to be younger than the plaintiff.

"If the jury can infer that the employer's explanation is not only a mistaken one in terms of the facts, but a lie, that should provide even stronger evidence of discrimination."

See, e.g., Aka, 156 F.3d at 1293 (“If the jury can infer that the employer’s explanation is not only a mistaken one in terms of the facts, but a lie, that should provide even stronger evidence of discrimination.”); but see Simpson v. Midland-Ross Corp., 823 F.2d 937, 941 & n. 4 (6th Cir. 1987) (holding that where ADEA plaintiff “was not replaced until [three] months after [his] discharge, and the discharge occurred in the context of a reduction in force due to economic necessity[,] ... substantially weaken[ed][his] ... claim.”).

holding that where ADEA plaintiff "was not replaced until [three] months after [his] discharge, and the discharge occurred in the context of a reduction in force due to economic necessity[,] ... substantially weaken[ed][his] ... claim."


Context: Because Sessums' right to be present during court proceedings was a qualified right, the trial court should have weighed the relevant factors and had a reason for denying a bench warrant before it decided not to allow him to participate in person at the hearing.

"If, after considering these factors, the trial court determines that the prisoner is not entitled to appear personally, then the trial court should permit him to proceed by affidavit, deposition, telephone, or other effective means."

See B.R.G., 48 S.W.3d at 819-20 (“If, after considering these factors, the trial court determines that the prisoner is not entitled to appear personally, then the trial court should permit him to proceed by affidavit, deposition, telephone, or other effective means.”); see also Nichols v. Martin, 776 S.W.2d 621, 623 (Tex.App.-Tyler 1989, no writ) (concluding the trial court must make pertinent inquiries regarding an appellant’s request to appear); cf. Nance v. Nance, 904 S.W.2d 890, 892 (Tex.App.-Corpus Christi 1995, no writ) (the order reflects various findings demonstrating that the trial court did not arbitrarily refuse to issue the requested bench warrant).

concluding the trial court must make pertinent inquiries regarding an appellant's request to appear


Context: Therefore, for the purposes of this motion, the Court finds that the Plaintiffs have a protected property interest in participating in the Program, and that their property interest is entitled to the protection of due process. United States v. Leasehold Interest in 121 Nostrand Ave., Apt.

"procedural due process protections ordinarily attach where state or federal law confers an entitlement to benefits"

1-C, Brooklyn, N.Y., 760 F.Supp. 1015, 1027 (E.D.N.Y.1991) (“A public housing tenant’s interest in his apartment is a property interest protected by the Constitution.”); Jackson Terrace Ass’n v. Paterson, 155 Misc.2d 556, 557, 589 N.Y.S.2d 141, 141 (N.Y.Dist.Ct.1992) (“A tenant in a federally subsidized housing project has a constitutionally protected expectation of continued occupancy in the absence of good cause for termination and such statutory entitlements are protected by the due process clause of the constitution.”); see also Kapps v. Wing, 404 F.3d 105, 113 (2d Cir.2005) (“procedural due process protections ordinarily attach where state or federal law confers an entitlement to benefits”); Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937 (2d Cir.1974) (tenant in a nonprofit housing development had an expectation in the renewal of her lease and nonrenewal without a hearing amounted to a deprivation of due process).

"A public housing tenant's interest in his apartment is a property interest protected by the Constitution."


tenant in a nonprofit housing development had an expectation in the renewal of her lease and nonrenewal without a hearing amounted to a deprivation of due process


"A tenant in a federally subsidized housing project has a constitutionally protected expectation of continued occupancy in the absence of good cause for termination and such statutory entitlements are protected by the due process clause of the constitution."


Context: Until Wilko is overruled, we are compelled to apply the Supreme Court's prevailing precedents with respect to predispute arbitration agreements and federal securities law. See Thurston Motor Lines, Inc. v. Jordon K.

"Needless to say, only this [the Supreme] Court may overrule one of its precedents."

Rand, Ltd., 460 U.S. 533, 535, 103 S.Ct. 1343, 1344, 75 L.Ed.2d 260 (1983) (“Needless to say, only this [the Supreme] Court may overrule one of its precedents.”); see also Chang v. Lin, 824 F.2d 219, 222 (2d Cir.1987) (“Although the Supreme Court in McMahon questioned the rationale underlying Wilko, the Court nevertheless did not overrule that decision, and it continues to govern us.”); Schultz v. Robinson-Humphrey/American Express, Inc., 666 F.Supp. 219, 220 (M.D.Ga.1987) (the federal district court concluded “the Supreme Court did not overrule Wilko, and has implicitly reaffirmed the nonarbitrable nature of Section 12 claims”).

"Although the Supreme Court in McMahon questioned the rationale underlying Wilko, the Court nevertheless did not overrule that decision, and it continues to govern us."


the federal district court concluded "the Supreme Court did not overrule Wilko, and has implicitly reaffirmed the nonarbitrable nature of Section 12 claims"


Context: The case law, however, indicates that threats of litigation may not constitute inducement of "fear" under the Hobbs Act. See, e.g., I.S.

But see United States v. Sturm, 870 F.2d 769, 774 (1st Cir.1989) (implying by hypothetical example that threat of litigation may constitute violation of Hobbs Act); Hall American Center Associates Limited Partnership v. Dick, 726 F.Supp. 1083, 1093-97 (E.D.Mich.1989) (holding that, at least where part of extensive scheme of other extortionate activity, threat of litigation may constitute extortion under Hobbs Act).

even bad faith threat of civil action does not constitute infliction of "fear" under Hobbs Act

Joseph Co., Inc. v. J. Lauritzen A/S, 751 F.2d 265, 267 (8th Cir.1984) (even bad faith threat of civil action does not constitute infliction of “fear” under Hobbs Act); Peterson v. Philadelphia Stock Exchange, 717 F.Supp. 332, 336 (E.D.Pa.1989) (“The ordinary resort to legal process does not rise to the level of a ‘wrongful use’ of force or fear” under Hobbs Act).


holding that, at least where part of extensive scheme of other extortionate activity, threat of litigation may constitute extortion under Hobbs Act


"The ordinary resort to legal process does not rise to the level of a 'wrongful use' of force or fear" under Hobbs Act


Context: "[T]he purpose of the work product privilege is to protect the integrity of the adversary process." Not surprisingly, it does not apply to foster a distortion of the adversary process by protecting illegal actions by an attorney. Because its purpose "is to protect the integrity of the adversary process[,] ... it would be improper to allow an attorney to exploit the privilege for ends that are antithetical to that process."

holding an attorney's unethical conduct in secretly recording conversations with witnesses vitiated the work product protection as to those recordings

Parrott, 707 F.2d at 1271 (holding an attorney’s unethical conduct in secretly recording conversations with witnesses vitiated the work product protection as to those recordings) (citing Moody v. I.R.S., 654 F.2d 795, 800 (D.C.Cir.1981)); see also In re Doe, 662 F.2d 1073, 1078 (4th Cir.1981) (“No court construing [the work product] rule ... has held that an attorney committing a crime could, by invoking the work product doctrine, insulate himself from criminal prosecution for abusing the system he is sworn to protect.”). Indeed, as some of the above precedents indicate, conduct by an attorney that is merely unethical, as opposed to illegal, may be enough to vitiate the work product doctrine.

"No court construing [the work product] rule ... has held that an attorney committing a crime could, by invoking the work product doctrine, insulate himself from criminal prosecution for abusing the system he is sworn to protect."


Context: In the present case, Hag-gerty admitted that he was not working out as plant manager and initiated a request to step down. His relinquishment of the duties in those circumstances resulted in failed consideration and an abandonment of the three year plant manager contract, assuming it was previously enforceable.

"A party is not entitled to enjoin the breach of contract by another unless he himself has performed what the contract requires of him so far as possible"

See Gustafson v. Jensen, 515 So.2d 1298, 1301 (Fla. 3d DCA 1987) (Parties may by their actions indicate abandonment of the terms of a contract and thereafter the contract may not be specifically enforced); Boswell v. Dickinson, 300 So.2d 61 (Fla. 1st DCA 1974), cert. denied, 312 So.2d 742 (Fla.1975) (same); see also, Cordis Corp. v. Prooslin, 482 So.2d 486, 490 (Fla. 3d DCA 1986), citing Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 1305, 128 So. 821, 824 (1930) (“A party is not entitled to enjoin the breach of contract by another unless he himself has performed what the contract requires of him so far as possible”); Richland Grove & Cattle Co. v. Easterling, 526 So.2d 685 (Fla.1988) (broker not entitled to commission or enforcement of broker’s contract where broker voluntarily abandoned his efforts to sell the property).


broker not entitled to commission or enforcement of broker's contract where broker voluntarily abandoned his efforts to sell the property


Context: The chance of a squeeze technique succeeding is usually improved if the squeeze remains in the dark about the affairs of the corporation and the actions of its directors and officers. The type of information withheld varies with the squeeze techniques being employed, but most commonly concerns the value of the enterprise and of an interest in it, the corporation's prospects for profitable operations in the future, the controlling shareholders' plans for the business, and any plans they may have for disposing of their interests in it. Since the public reporting and disclosure requirements of the federal securities law do not apply to close corporations, shareholders in a close corporation do not have access to sources of information available to securities holders in a public-issue corporation."

holding that, in certain situations, it is oppressive for majority shareholders "to parse out the information or documents that the duly elected and constituted secretary/treasurer has access to"

O’Neal, 35 Clev. St. L. Rev. at 130. See also, Leech, 762 A.2d at 720 (holding that, in certain situations, it is oppressive for majority shareholders “to parse out the information or documents that the duly elected and constituted secretary/treasurer has access to”); Miller, Note, 12 J.L. & Com. at 81 (arguing that “withholding information relevant to the operation of the corporation as to important corporate matters” would indicate the existence of oppressive conduct).

tactics employed against a minority shareholder to effect a squeeze out and thus breaching the fiduciary duty owed such a shareholder may include "withholding information relating to the operation of the corporation"

Cf. Orchard, 590 F. Supp. at 1557 (tactics employed against a minority shareholder to effect a squeeze out and thus breaching the fiduciary duty owed such a shareholder may include “withholding information relating to the operation of the corporation”); Robert A. Ragazzo, Toward a Delaware Common Law of Closely Held Corporations, 77 Wash. U. L.Q. 1099, 1115 (1999) (“denying the minority access to corporate information [has] contributed to findings of breach of fiduciary duty in the close corporation context”).


arguing that "withholding information relevant to the operation of the corporation as to important corporate matters" would indicate the existence of oppressive conduct


Context: Because payments alone are insufficient to establish affirmative misconduct, the defendant's partial payments of attorneys' fees, likewise, are insufficient. Furthermore, failing to raise arguments in an administrative due process hearing does not constitute affirmative misconduct absent a showing, by the plaintiff, that the omission was anything more than "ordinary negligence."

See Gibson v. West, 201 F.3d 990, 994 (7th Cir.2000) (internal quotation marks omitted) (holding that a “failure to advise,” even when the defendant has an “affirmative obligation” to do so, “is not the same as engaging in ‘affirmative misconduct’ ”); see also American Sav. v. Bell, 562 F.Supp. 4, 8-9 (D.D.C.1981) (declining to estop the government from raising arguments not included in a denial letter).

holding that a "failure to advise," even when the defendant has an "affirmative obligation" to do so, "is not the same as engaging in 'affirmative misconduct' "


Context: He concedes, for example, that the statute of limitations did not bar him from refiling those claims in state court, and in fact, the claims have been refiled. The Supreme Court has indicated that a remand of state claims originally removed from state court "may best promote the values of economy, convenience, fairness, and comity" even where the applicable statute of limitations has not expired, but it is clear that a district court retains the discretion to dismiss as well as to remand such claims.

"petitioners concede, as they must, that a federal court has discretion to dismiss a removed ease involving pendent claims"

Id. at 353-54,108 S.Ct. at 621 (“petitioners concede, as they must, that a federal court has discretion to dismiss a removed ease involving pendent claims”); see also Decatur Memorial Hosp. v. Connecticut Gen. Life Ins. Co., 990 F.2d 925, 927-28 (7th Cir.1993) (removed state law claim could be dismissed without prejudice or remanded once federal claim had been resolved); Rothner v. City of Chicago, 879 F.2d 1402, 1406 (7th Cir.1989) (same).


Context: Plaintiff's Reply to Defendants' Reply in Support of Their Motion for Summary Judgment. [Doc. #49] ("Plaintiff's Surreply"), at 2-3. However, even assuming arguendo that the alteration of the records would suffice as an act of discrimination or harassment actionable under Title VII, and that the date of the. alteration could be established, it is insufficient to permit Williams to rely upon the continuing violation exception, because nothing prevented her from filing a charge of discrimination before discovering the alteration.

See Alldread v. City of Grenada, 988 F.2d 1425, 1432 (5th Cir.1993) (premise underlying the continuing violation doctrine is the equitable notion that the statute of limitations ought not to begin to run until facts supportive of the cause of action are of should be apparent to a reasonably prudent person similarly situated); see also Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir.1994) (“the purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred”).

"the purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred"


Context: Reasonable people could not disagree as to the meaning and effect of these provisions: they unambiguously state that if Robinson failed to pay its premiums by the end of the ten-day grace period, the Contract could be terminated as of the date the premiums were due. Further, even if Foundation had written internal policies that modified the Contract, binding precedent precludes these policies from modifying the unambiguous terms of the Contract.

Nachwalter, 805 F.2d at 960 (explaining that Congress rejected the use of informal written agreements to modify an ERISA plan); see also Adams v. Thiokol Corp., 231 F.3d 837, 843 (11th Cir.2000) (citing Nachwalter); Smith v. Nat’l Credit Union Admin. Bd., 36 F.3d 1077, 1081 (11th Cir.1994) (holding that “any modification or amendment to an ERISA plan can be supplemented or applied only after the amendment has been appropriately adopted in a formal, complete, and written form”).

holding that "any modification or amendment to an ERISA plan can be supplemented or applied only after the amendment has been appropriately adopted in a formal, complete, and written form"


Context: . The petitioners contend that we lack jurisdiction because the government's notice of appeal was filed on the sixtieth day after entry of the order being appealed. That contention assumes that this appeal is governed by Fed. R.App.P. 4(b)(1)(B), which requires that any notice of appeal by the government be filed within 30 days after judgment in a criminal case.

Instead, appeals in § 2255 proceedings are treated as civil in nature and are governed by Fed.R.App.P. 4(a)(1)(B), which allows 60 days for filing the notice of appeal where the government is a party. See United States v. Brown, 117 F.3d 471, 474 (11th Cir.1997) (holding that the "appeal was timely filed, because Federal Rule of Appellate Procedure 4(a) provides inmates with sixty days to appeal the denial of a § 2255 motion''); United States v. Phillips, 225 F.3d 1198, 1200 (11th Cir.2000) (observing that Fed.R.App.P. 4(a)(1)(B) would apply to allow the government 60 days to appeal from the grant of a § 2255 motion) (dicta); see also United States v. Dunham Concrete Prods., Inc., 501 F.2d 80, 81 (5th Cir.1974) ("This Circuit has long taken the view that § 2255 proceedings are, like habeas matters, civil actions mainly standing on their own bottoms....”).

"This Circuit has long taken the view that SS 2255 proceedings are, like habeas matters, civil actions mainly standing on their own bottoms...."


Context: The Kansas Supreme Court rejected Torres's argument that the trial court violated his Sixth Amendment right to confront witnesses when it admitted the statements he made to law enforcement officers.

holding district court did not violate Sixth Amendment by admitting defendant's out-of-court statement

Torres, 121 P.3d at 438. We agree that no clear authority exists for the proposition that the Sixth Amendment guarantees a right to “confront oneself’ at trial. See, e.g., United States v. Brown, 441 F.3d 1330, 1359 (11th Cir .2006), cert. denied, —U.S.-, 127 S.Ct. 1149, 166 L.Ed.2d 998 (2007) (holding district court did not violate Sixth Amendment by admitting defendant’s out-of-court statement) (citing United States v. Zizzo, 120 F.3d 1338, 1354 (7th Cir.1997); United States v. Moran, 759 F.2d 777, 786 (9th Cir.1985); United States v. Rios Ruiz, 579 F.2d 670, 676-77 (1st Cir.1978); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 802.05[3][d] at 802-25 (2d ed.2005) (explaining “a party cannot seriously claim that his or her own statement should be excluded because it was not made under oath or subject to cross-examination”)); United States v. Lafferty, 387 F.Supp.2d 500, 511 (W.D.Pa.2005) (“Inherent in Justice Scalia’s analysis in the Crawford opinion was the idea that the right of confrontation exists as to accusations of third parties implicating a criminal defendant, not a criminal defendant implicating herself.”); but see United States v. Gibson, 409 F.3d 325, 338 (6th Cir.2005) (implying admission of an out-of-court confession by defendant might raise confrontation problems under Crawford).


"Inherent in Justice Scalia's analysis in the Crawford opinion was the idea that the right of confrontation exists as to accusations of third parties implicating a criminal defendant, not a criminal defendant implicating herself."


Context: Though Mr. Meek refers to his gang tattoos, he does not allege any facts that would suggest similarities to other prisoners who were treated more favorably. The omission is fatal to the equal-protection claim.

concluding that a prisoner's equal-protection claim was frivolous because of the inability to allege similarities "in every relevant respect" to other inmates who were classified more favorably

See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir.1994) (concluding that a prisoner’s equal-protection claim was frivolous because of the inability to allege similarities “in every relevant respect” to other inmates who were classified more favorably); see also Fogle v. Pierson, 435 F.3d 1252, 1260-61 (10th Cir.2006) (a prisoner’s equal-protection claim, based on a difference in the length of administrative detention, was frivolous because it was not plausible to suggest identical circumstances with other inmates who were treated more favorably).

a prisoner's equal-protection claim, based on a difference in the length of administrative detention, was frivolous because it was not plausible to suggest identical circumstances with other inmates who were treated more favorably


Context: Second, the defense did directly charge fabrication through its two witnesses and the nature of its cross-examination of Turner. It also impliedly charged that Turner had an improper motive that influenced him to fabricate. Onaiwu and the defendant testified that the defendant had left the table before Agent Turner asked for the heroin sample and that Onaiwu, not the defendant, had handed over the sample. Implied in this testimony was the suggestion that Agent Turner might have structured his testimony in order to convict defendant.

attack on witnesses' credibility is an implicit charge of fabrication for purposes of Quinto test

Cf. United States v. Shulman, 624 F.2d 384, 393 (2d Cir.1980) (attack on witnesses’ credibility is an implicit charge of fabrication for purposes of Quinto test).

impeachment of undercover operative as witness "was rife with implications that his testimony was improperly motivated"

See United States v. Dominguez, 604 F.2d 304, 311 (4th Cir.1979) (impeachment of undercover operative as witness “was rife with implications that his testimony was improperly motivated”), cert. denied sub nom. Sarmiento v. United States, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980).


Context: In sum, regardless of how DiMeglio characterizes his speech before the EBIA, it was not in 1990 (nor is it even now) clearly within the protected expression of a public employee under the First Amendment. Indeed, only infrequently will it be "clearly established" that a public employee's speech on a matter of public concern is constitutionally protected, because the relevant inquiry requires a "particularized balancing" that is subtle, difficult to apply, and not yet well-defined.

" '[W]e do not deem it either appropriate or feasible to attempt to lay down a general standard against which all statements may be judged.'" (quoting Pickering, 391 U.S. at 569, 88 S.Ct. at 1735

Connick, 461 U.S. at 150, 103 S.Ct. at 1691-92; Jackson v. Bair, 851 F.2d 714, 717 (4th Cir.1988); see Connick, 461 U.S. at 154, 103 S.Ct. at 1694 (“ ‘[W]e do not deem it either appropriate or feasible to attempt to lay down a general standard against which all statements may be judged.’” (quoting Pickering, 391 U.S. at 569, 88 S.Ct. at 1735)); see also Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992) (“In determining whether the law was clearly established, we bear in mind that allegations of constitutional violations that require courts to balance competing interest may make it more difficult to find the law ‘clearly established’ when assessing claims of qualified immunity.”); Borucki v. Ryan, 827 F.2d 836, 848 (1st Cir.1987) (“[Wjhen the law requires a balancing of competing interest, ... it may be unfair to charge an official with knowledge of the law in absence of a previously decided case with clearly analogous facts.”) (citation omitted); Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.) (“[I]f the existence of a right or the degree of protection it warrants in a particular context is subject to a balancing test, the right can rarely be considered ‘clearly established,’ at least in the absence of closely corresponding factual and legal precedent.”), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987); Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.) (A constitutional rule that “involv[es] the balancing of competing interests” is “so fact dependent that the ‘law” can rarely be considered ‘clearly established.’”), cert. denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986).

"In determining whether the law was clearly established, we bear in mind that allegations of constitutional violations that require courts to balance competing interest may make it more difficult to find the law 'clearly established' when assessing claims of qualified immunity."


"[Wjhen the law requires a balancing of competing interest, ... it may be unfair to charge an official with knowledge of the law in absence of a previously decided case with clearly analogous facts."


"[I]f the existence of a right or the degree of protection it warrants in a particular context is subject to a balancing test, the right can rarely be considered 'clearly established,' at least in the absence of closely corresponding factual and legal precedent."


A constitutional rule that "involv[es] the balancing of competing interests" is "so fact dependent that the 'law" can rarely be considered 'clearly established.'"


Context: . Social Security Regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. Where, as here, the AO's decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the AO's decision.

applying version of regulation in effect at time of ALJ's decision despite subsequent amendment

See Lowry v. Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 15-05925, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) ("42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”); cf. Revised Medical Criteria for Determination of Disability, Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58010, 2001 WL 1453802, at *58011 (Nov. 19, 2001) (“With respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court’s review of the Commissioner's final decision would be made in accordance with the rules in effect at the time of the final decision.”).

"With respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court's review of the Commissioner's final decision would be made in accordance with the rules in effect at the time of the final decision."


"We apply the rules that were in effect at the time the Commissioner's decision became final."


"42 U.S.C. SS 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking"


Context: For the reasons discussed above, I reject the rationale of those cases which hold that res judicata bars a subsequent action unless the debtor's disclosure statement and/or plan specifically reserves the right to litigate that specific claim, and choose to follow those courts which hold that a subsequent action is not barred by a prior confirmation hearing under the doctrine of res judicata where the disclosure statement and plan contain a general reservation of the right to pursue preference actions post-confirmation.

finding that res judicata did not bar unsecured creditor's objection to larger creditor's claim where neither the debtor's disclosure statement or plan contained any provision pertaining to the allowance or disallowance or suggesting or requiring that the action of any creditor be brought against any other, including defendant

See Weidel, 208 B.R. at 853-54 (holding that res judicata did not bar debtors’ objection to creditor’s proof of claim where the plan expressly reserved the general right to assert post-confirmation objections to claims); see also Envirodyne Indus., Inc. v. Conn. Mutual Life Co. (In re Envirodyne Indus., Inc.), 174 B.R. 986, 991 (Bankr.N.D.Ill.1994) (finding that debtor was not barred from bringing proceedings against petitioning bondholders under the doctrine of res ju-dicata based on debtor’s failure to explicitly reveal its potential claims against such bondholders in its disclosure statement); In re Outdoor Sports Headquarters, Inc., 168 B.R. 177, 183 (Bankr.S.D.Ohio 1994) (finding that res judicata did not bar unsecured creditor’s objection to larger creditor’s claim where neither the debtor’s disclosure statement or plan contained any provision pertaining to the allowance or disallowance or suggesting or requiring that the action of any creditor be brought against any other, including defendant).

holding that res judicata did not bar debtors' objection to creditor's proof of claim where the plan expressly reserved the general right to assert post-confirmation objections to claims


Context: As for Fones' second point, that the amendment constitutes a reasonable interpretation of the "plain language" of the guideline, the problem is that our Chambers decision was based on the plain meaning of the term "manager" in U.S.S.G. SS 3Bl.l(b); Chambers did not say that the guideline was ambiguous.

"Given the plain meaning of the pre-amendment version ... we conclude that the amendment makes a substantive change in the law rather than a clarification of pre-existing law."

See United States v. Ruiz-Batista, 956 F.2d 351, 353 (1st Cir.) (“To clarify means to make clear, to free from ambiguity, and ... if there was no ambiguity, and the plain, original meaning was as [defendant] contends, the Commission could not change that meaning retroactively by using a magic word, clarification”), cert. denied, — U.S. -, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992). It follows from Chambers, then, that the 1993 amendment to the commentary is contrary to the plain meaning of § 3Bl.l(b). See Mondaine, 956 F.2d at 942 (“Given the plain meaning of the pre-amendment version ... we conclude that the amendment makes a substantive change in the law rather than a clarification of pre-existing law.”); cf. Prezioso, 989 F.2d at 54 (“any amendment that is inconsistent with the clear meaning [of the guideline it interprets] results in a substantive change, regardless of the Sentencing Commission’s characterization”); Joshua, 976 F.2d at 854-55 (court should not give retroactive effect where “the text of the guideline will not support [the amendment’s] interpretation”).

"any amendment that is inconsistent with the clear meaning [of the guideline it interprets] results in a substantive change, regardless of the Sentencing Commission's characterization"


court should not give retroactive effect where "the text of the guideline will not support [the amendment's] interpretation"


Context: ERISA's participation and vesting rules govern the nonforfeitability requirements of plans covered by ERISA. 29 U.S.C. SS 1053. ERISA exempts top hat plans from its nonforfeitability protection.

See Bigda, 898 F.Supp. at 1016 (holding New York law may prohibit noncompete forfeiture provisions, but ERISA statutes allow forfeiture of all deferred compensation benefits under noncompete forfeiture provisions in a top hat plan); see also Lojek v. Thomas, 716 F.2d 675, 678-79 (9th Cir.1983) (holding even though Idaho law does not permit the enforcement of noncompete clauses in employment contracts, ERISA statutes allow forfeiture of pension benefits in excess of ERISA’s minimum vesting requirements in noncompete clauses), Clark, 816 F.2d at 481-82 (holding state law may prohibit noncompete forfeiture provisions, but ERISA preempts state law with regard to those clauses in an ERISA plan as to pension benefits).


Context: However, in its briefing, Oceana does not present any argument or citation in support of its NEPA theory on Count III. In a case based solely on judicial review of agency action, the district court sits as an appellate tribunal and disposes of the case on cross-motions for summary judgment.

"[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal."

See Locke, 831 F.Supp.2d at 106 (“In such a case, summary judgment merely serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.”); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001) (“[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal.”); Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir.1993) (“The entire case on review is a question of law, and only a question of law.”). Thus, a plaintiffs failure to raise arguments or theories in its motion for summary judgment results in waiver of those arguments.

"In such a case, summary judgment merely serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review."


"The entire case on review is a question of law, and only a question of law."


finding waiver in petitioner's failure to raise argument in its opening brief

See EMILY’S List v. FEC, 569 F.Supp.2d 18, 25 n. 6 (D.D.C.2008), rev’d on other grounds, 581 F.3d 1 (D.C.Cir.2009); see also New York v. U.S. EPA, 413 F.3d 3, 20 (D.C.Cir.2005) (per curiam) (finding waiver in petitioner’s failure to raise argument in its opening brief).


Context: Dr. Hale utilized a method of analysis known as a "psychological autopsy" in forming his conclusions about Miller's sanity. Numerous courts have recognized experts' use of a psychological autopsy to determine an individual's manner of death -- typically to determine whether or why an individual committed suicide.

"The psychological autopsy is a generally accepted methodology for trying to determine what led to a suicide."

See Blanchard v. Eli Lilly & Co., 207 F.Supp.2d 308, 313 n. 2 (D.Vt.2002) (“The psychological autopsy is a generally accepted methodology for trying to determine what led to a suicide.”); see also In re Neurontin Mktg., No. 04-CV-10981, 2009 WL 3756328, at *6 (D.Mass. Aug. 14, 2009) (collecting cases discussing use of psychological autopsy to determine cause of suicide).


Context: The Butnaru opinion does not invalidate the statutory authorization of a partial affirmance. It addresses the limited control courts can exert over the agency's proceedings with respect to issues remanded.

affirming trial court's dismissal of appeal as moot and rejecting request to render decision agency "should have"

Butnaru, 157 S.W.3d at 149 (trial court erred by requiring agency to conduct investigation on remand); McKillip, 956 S.W.2d at 802 (trial court erred by directing agency to adopt proposal for decision); see also Pantera, 150 S.W.3d at 476 (affirming trial court’s dismissal of appeal as moot and rejecting request to render decision agency “should have”).


trial court erred by directing agency to adopt proposal for decision


Context: For any major capital project like this one, planning is complex and time-consuming, environmental and other reviews take time to complete, and funding takes time to secure, especially when the District and federal governments face fiscal constraints. Appellants do not identify any comparable project in the District or in other jurisdictions that moved more quickly, much less make any factual allegations reasonably suggesting that projects of this scale ordinarily get underway in substantially less than four years.

See Bass Enterprises Production Co., 381 F.3d at 1367 (courts must consider whether the delay is disproportionate to the regulatory scheme from which it arises). Moreover, this four-year delay is no longer than the delay found not to be extraordinary in other cases.

Cf. id. at 1366-67 (finding no taking despite 45-month delay in granting permit application for drilling); Wyatt, 271 F.3d at 1099 (same for six-year delay in granting permit application for mining); see also Kirby Forest Industries, 467 U.S. at 6-8, 104 S.Ct. 2187 (no taking occurred until 1982 when government actually acquired forest land for a national park, even though government publicly announced its desire to create the national park in the mid-1960s, legislation directing the acquisition was passed in 1974, and the government filed a condemnation case in 1978).


no taking occurred until 1982 when government actually acquired forest land for a national park, even though government publicly announced its desire to create the national park in the mid-1960s, legislation directing the acquisition was passed in 1974, and the government filed a condemnation case in 1978


Context: The analytical deficiencies of Plaintiffs statistics diminish the probative value of this evidence such that it cannot by itself support a claim of disparate treatment.

See Brown v. American Honda Co., 939 F.2d 946, 952 (11th Cir.1991) (holding that summary judgment was appropriate where plaintiffs statistical evidence, which lacked specific analytical foundation and thus failed to show that employer maintained discriminatory intent, was insufficient to establish prima facie case or pretext); Hawkins v. Ceco Corp., 883 F.2d 977, 985 (11th Cir.1989) (holding that plaintiffs statistical evidence failed to establish prima facie case or pretext where evidence failed to make specific analytical comparisons); cf. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 330 (5th Cir.1977) (holding that plaintiffs evidence of statistical disparities in hiring, promotion and compensation was sufficient to support claim of intentional discrimination where the employment decisions were based on completely subjective criteria).


holding that plaintiffs statistical evidence failed to establish prima facie case or pretext where evidence failed to make specific analytical comparisons


See Brown v. American Honda Motor Co., 939 F.2d 946, 952 (11th Cir.1991) (holding that summary judgment was appropriate where plaintiffs statistical evidence, which lacked specific analytical foundation and thus failed to show that employer maintained discriminatory intent, was insufficient to establish prima facie case or pretext); Hawkins v. Ceco Corp., 883 F.2d 977, 985 (11th Cir.1989) (holding that plaintiffs statistical evidence failed to establish prima facie case or pretext where evidence failed to make specific analytical comparisons); cf. James v. Stockholm Valves & Fittings Co., 559 F.2d 310, 330 (5th Cir.1977) (holding that plaintiffs evidence of statistical disparities in hiring, promotion and compensation was sufficient to support claim of intentional discrimination where the employment decisions were based on completely subjective criteria).


Context: The nature of an action to reform a deed is, therefore, qualitatively different from an action challenging title.

Compare McCormick, 37 A.3d at 298 (explaining that covenant of warranty is a promise to defend lawful claims by third persons), with Bourne, 540 A.2d at 361 (stating that reformation is limited to the original parties and their successors in title). Consequently, we hold that RSA 477:27 does not authorize attorney’s fees for an action seeking reformation of a deed. See Anderson v. Selby, 700 N.W.2d 696, 702 (N.D. 2005) (declining to award attorney’s fees under warranty deed in reformation action by grantor); see also Civic Realty, Inc. v. Development, Inc., 641 P.2d 1361, 1362-63 (Haw. Ct. App. 1982) (recognizing distinction between attack on title by third party and complaint alleging mutual mistake in deed).


stating that reformation is limited to the original parties and their successors in title


declining to award attorney's fees under warranty deed in reformation action by grantor


Context: Finally, the court is satisfied that the translated declarations are admissible for purposes of summary judgment despite the fact that the Navajo-speaking declar-ants signed a document presented solely in English. "Nothing in SS 1746 requires that a non-English speaking affiant provide evidence that the declaration was translated into the affiant's native language before signing it. Moreover, ... such an argument would go to the weight of the declaration and not its admissibility."

"There is no authority for Ahn's argument that Huh was required to use his native language of Korean in his declaration."

Collazos-Cruz v. U.S., 117 F.3d 1420 (unpublished table opinion), 1997 WL 377037, at *3 (6th Cir. Jul. 3, 1997) (holding that a translated declaration was validly admitted at summary judgment despite the fact that there was no “evidence that the declaration was translated to [the Spanish-speaking declar-ant] from English to Spanish”); see also Ahn v. Hanil Dev., Inc., 471 Fed.Appx. 615, 618-19 (9th Cir. 2012) (“There is no authority for Ahn’s argument that Huh was required to use his native language of Korean in his declaration.”); Matsuda, 101 F.Supp.2d at 1323; Coach, Inc. v. Weng, No. 13 Civ. 445, 2014 WL 2604032, at *8 (S.D.N.Y. Jun. 9, 2014) (unpublished); but see, e.g., Cruz v. Aramak Servs., Inc., 213 Fed.Appx. 329, 334 (5th Cir. 2007) (supplying a four-factor balancing test for determining whether a translator acted as a “mere conduit” for hearsay purposes).

holding that a translated declaration was validly admitted at summary judgment despite the fact that there was no "evidence that the declaration was translated to [the Spanish-speaking declar-ant] from English to Spanish"


Context: A court is justified in presuming customer confusion particularly in the cases where a competitor had spent substantial funds in an effort to deceive customers and influence their purchasing decisions.

plaintiff must "demonstrate that a statistically significant part of the commercial audience holds the false belief allegedly communicated by the challenged advertisement, ... "

See, e.g., id., 926 F.2d at 140 (stating that plaintiff “must demonstrate that Dettra set out to intentionally deceive flag purchasers”); see also Johnson & Johnson*Merck v. Smithkline Beecham Corp., 960 F.2d 294, 298 (2d Cir.1992) (plaintiff must “demonstrate that a statistically significant part of the commercial audience holds the false belief allegedly communicated by the challenged advertisement, ... ”).

stating that plaintiff "must demonstrate that Dettra set out to intentionally deceive flag purchasers"