Context: Dumont argues that the maximum entry age of 36 violates the equal protection clause of the Fifth Amendment. An equal protection challenge based upon an age classification must be judged under a rational basis standard.

Court found that a New York State statute prohibiting the hiring of police officers over 29 years of age was rationally related to "ensuring that the police force is physically able and capable of being trained"

Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (in upholding a mandatory retirement age for Foreign Service Employees the Court explained that it would not “overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational”); see also Doyle v. Suffolk County, 786 F.2d 523, 525 (2d Cir.1986), cert. denied, 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986) (Court found that a New York State statute prohibiting the hiring of police officers over 29 years of age was rationally related to “ensuring that the police force is physically able and capable of being trained”); Francke v. Dep’t of Treasury, 721 F.Supp. 47, 53 (S.D.N.Y.1989) (Department of Treasury’s maximum hiring age policy for criminal investigators is rationally related to its legislative purpose of creating a young and vigorous work force); Crane v. Schneider, 635 F.Supp. 1430, 1433 (E.D.N.Y.1986) (age 36 cut-off for county deputy sheriff position does not violate equal protection clause because it is rationally related to the “government’s legitimate interest in employing healthy and vigorous individuals in [strenuous] jobs ... and ensuring candidates are physically capable of being trained”); Klotsche v. City of New York, 621 F.Supp. 1113 (S.D.N.Y.1985) (maximum hiring age limitation of 29 contained in City’s administrative code does not violate equal protection clause); Colon v. City of New York, 535 F.Supp. 1108 (S.D.N.Y.1982) (maximum hiring age for city police officers does not violate equal protection clause).

in upholding a mandatory retirement age for Foreign Service Employees the Court explained that it would not "overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational"


Department of Treasury's maximum hiring age policy for criminal investigators is rationally related to its legislative purpose of creating a young and vigorous work force


age 36 cut-off for county deputy sheriff position does not violate equal protection clause because it is rationally related to the "government's legitimate interest in employing healthy and vigorous individuals in [strenuous] jobs ... and ensuring candidates are physically capable of being trained"


maximum hiring age limitation of 29 contained in City's administrative code does not violate equal protection clause


maximum hiring age for city police officers does not violate equal protection clause


Context: This circuit has repeatedly held that movement within ones own lane or other relatively benign driving activity is not a sufficient ground on which to base reasonable suspicion, even when coupled with other suspicious circumstances.

dispatcher's report and officer's observation of defendant crossing the fog line were insufficient for particularized suspicion that defendant was driving under the influence

See United States v. Jimenez-Medina, 173 F.3d 752, 755 (9th Cir.1999) (“The law of this circuit teaches that the presence of such facts as driver preoccupation, slow speed, movement within one’s own lane of traffic, and even coming from the wrong neighborhood’ do not give rise to legally sufficient ‘reasonable suspicion.’ ”); United States v. Rodriguez, 976 F.2d 592, 595-96(9th Cir. 1992) (observation of preoccupied driver in particular type of vehicle, swerving within his lane of traffic, on highway with reputation for alien smuggling, did not support reasonable suspicion); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418 (9th Cir.1989) (large reduction in speed of vehicle, driver’s “nervous demeanor,” license plate brackets from a dealership associated with drug trafficking, and driver’s residence in neighborhood under investigation for narcotics activity, did not support a finding of reasonable suspicion); see also State v. Lafferty, 291 Mont. 157, 160, 967 P.2d 363 (1998) (dispatcher’s report and officer’s observation of defendant crossing the fog line were insufficient for particularized suspicion that defendant was driving under the influence).

"The law of this circuit teaches that the presence of such facts as driver preoccupation, slow speed, movement within one's own lane of traffic, and even coming from the wrong neighborhood' do not give rise to legally sufficient 'reasonable suspicion.' "


observation of preoccupied driver in particular type of vehicle, swerving within his lane of traffic, on highway with reputation for alien smuggling, did not support reasonable suspicion


large reduction in speed of vehicle, driver's "nervous demeanor," license plate brackets from a dealership associated with drug trafficking, and driver's residence in neighborhood under investigation for narcotics activity, did not support a finding of reasonable suspicion


Context: 116 While the Utah Supreme Court has not addressed the amended plea withdrawal statute, it has recently reaffirmed that the plea withdrawal statute is unequivocally jurisdictional.

See State v. Merrill, 2005 UT 34,¶ 20, 114 P.3d 585 (applying the previous plea withdrawal statute and "confirm[ing] our conclusion ... that [Utah Code] section Ti-13-6(2)(b) [ (Supp.2004) ] is indeed jurisdictional"); see also State v. Mullins, 2005 UT 43,¶ 11 n. 2, 116 P.3d 374 (applying the previous plea withdrawal statute and noting that in Merrill the court "removed any lingering doubt as to the jurisdictional consequences of a failure to seek a timely withdrawal of a plea").


Context: This failure to notify third parties would have no bearing on J & R's restitution claim against Mississippi Valley itself. In some cases, however, such an arrangement may prevent the restitution claimant from asserting priority against the claims of the bailee's other creditors.

"[W]here one party, by means of contract, but without notice to the world, suffers the real ownership of chattels to be in himself, and the ostensible ownership to be in another, the law will postpone the rights of the former to those of the execution or attachment creditors of the latter[.]"

See Chickering v. Bastress, 130 Ill. 206, 22 N.E. 542, 543 (1889) (“[W]here one party, by means of contract, but without notice to the world, suffers the real ownership of chattels to be in himself, and the ostensible ownership to be in another, the law will postpone the rights of the former to those of the execution or attachment creditors of the latter[.]”); see also Matter of Iowa R.R. Co., 840 F.2d 535, 545 (7th Cir.1988) (denying constructive trust where “[n]oth-ing in the way the Iowa did business would have alerted other creditors that the funds ostensibly in its control were held in trust”).

denying constructive trust where "[n]oth-ing in the way the Iowa did business would have alerted other creditors that the funds ostensibly in its control were held in trust"


Context: The only two sister circuits to have addressed this issue directly have held that the plaintiff need not prove a lack of probable cause for the prosecution.

holding that the investigator's belief that a crime had been committed "does not permit or excuse deliberate fabrication of evidence"

See Gausvik, 345 F.3d at 817-18 (analyzing whether the allegations met the standard for deliberate fabrication, even though probable cause existed); see also Costanich, 627 F.3d at 1113 (holding that the investigator’s belief that a crime had been committed “does not permit or excuse deliberate fabrication of evidence”); Crowe v. County of San Diego, 608 F.3d 406, 432-37 (9th Cir. 2010) (upholding a Fourteenth Amendment coercive-interview claim while rejecting Fourth Amendment claims because of the existence of probable cause).


upholding a Fourteenth Amendment coercive-interview claim while rejecting Fourth Amendment claims because of the existence of probable cause


Context: The Court is not persuaded by appellee's argument that in the context of his bankruptcy, the debtor may raise otherwise time barred issues as a defense or counterclaim to the government's proof of claim. It is clear that the statute of limitations created by specific provisions of the tax code are applicable to bankruptcy proceedings.

See e.g. Custom Distribution, 224 F.3d at 244 (holding that court sitting in bankruptcy may allow a taxpayer to use overpayment of taxes as offset of debt to the IRS, but only if that offset request is timely); In re Constable Terminal Corp., 246 B.R. 181, 184 (D.N.J.2000) (agreeing with cited courts which have required taxpayers to file a claim for refund within the time limitations required by federal law, even if used as an offset or counterclaim); In re Dunhill Medical Inc., Civ. No. 92-37700, 1996 WL 354696 at *7 (Bankr.D.N.J. March 27, 1996) (holding that although 11 U.S.C. § 505(a)(2)(B) does not require a debtor to have filed a claim with the IRS before requesting an offset or stating a counterclaim, but the debtor’s assertion within the context of the bankruptcy must still be timely according to the Internal Revenue Code); see also In re Carter, 125 B.R. 832, 835 (Bankr.D.Kan.1991); In re Murray Industries, 106 B.R. at 286. But cf. In re New Haven Projects Ltd. Liability Co., 225 F.3d 283, 286 (2d Cir.2000) (acknowledging the power of federal bankruptcy court to overlook state law statutes of limitations) (emphasis added).


agreeing with cited courts which have required taxpayers to file a claim for refund within the time limitations required by federal law, even if used as an offset or counterclaim


Context: Notwithstanding his own observations on June 1, 1993, Brown was entitled to rely on the information conveyed to him by officer Woltring to support his probable cause determination that a violation of former RCW 75.20.100 had occurred.

See also State v. Maesse, 29 Wn. App. 642, 646-47, 629 P.2d 1349 (an arresting officer who does not personally possess sufficient information to constitute probable cause may still make a warrant-less arrest if he acts upon the direction or as a result of a communication from a fellow officer), review denied, 96 Wn.2d 1009 (1981).

See Torrey v. City of Tukwila, 76 Wn. App. 32, 39, 882 P.2d 799 (1994) (under the fellow officer rule, information conveyed by one law enforcement officer to another is sufficient to support probable cause).


Context: Conceding that an adequate factual basis existed to support a statutory violation under our pre-Bailey law, he asserts that after Bailey, it is unclear whether the conduct acknowledged in the plea agreement still would violate the statute. For this reason, he asks that we vacate his firearm conviction and remand to the district court for further proceedings.

factual basis for guilty plea may be insufficient where government proffered only that the defendant "possessed numerous weapons" in connection with a narcotics conspiracy

See United States v. Abdul, 75 F.3d 327, 329-30 (7th Cir.) (vacating plea for knowing use of firearm where the admitted conduct would not constitute a “use” under Bailey), cert. denied, — U.S. -, 116 S.Ct. 2569, 135 L.Ed.2d 1085 (1996); see also United States v. Robinson, 96 F.3d 246, 254 (7th Cir.1996) (factual basis for guilty plea may be insufficient where government proffered only that the defendant “possessed numerous weapons” in connection with a narcotics conspiracy).

vacating plea for knowing use of firearm where the admitted conduct would not constitute a "use" under Bailey


Context: Warch refers to opinions of those who thought he was doing a good job and points to savings he brought the company, arguing that this evidence demonstrates he was meeting OCIC's legitimate performance expectations. As to the opinions, they were offered either by those whose employment with OCIC ended well before Warch's or by third parties who were never employed by OCIC at all. Thus, they lack probative value as to whether Warch was meeting his employer's legitimate expectations at the time he was fired.

explaining that co-workers' opinions might be relevant in certain situations, but not where they fail to establish what expectations the employer had and whether the employee met them

See, e.g., Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.2000) (disregarding plaintiffs opinions of her own performance because “[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff,” and finding the opinions of her co-workers “similarly close to irrelevant”) (citations and internal quotation marks omitted); O’Connor, 56 F.3d at 547 (holding that a review of an employee’s 1989 performance was irrelevant to a determination of whether his performance was satisfactory at the time of his termination in August of 1990); cf. King v. Rumsfeld, 328 F.3d 145, 149-50 (4th Cir.2003) (explaining that co-workers’ opinions might be relevant in certain situations, but not where they fail to establish what expectations the employer had and whether the employee met them).

holding that a review of an employee's 1989 performance was irrelevant to a determination of whether his performance was satisfactory at the time of his termination in August of 1990


Context: In similar circumstances, courts of other states have held that the fact that evidence had been gathered outside an officer's territorial jurisdiction does not require suppression of the evidence. "The transport of defendant across State lines was merely fortuitous and should not work to clear defendant of the charges."

People v. Preston, 205 Ill. App. 3d 35, 42, 563 N.E.2d 80 (1990) (officer lawfully crossed state line in order to provide Illinois implied consent warning for purpose of obtaining blood test to check blood alcohol level of motorist who had been transported to Iowa hospital); see also State v. Griffiths, 113 Idaho 364, 369-70, 744 P.2d 92 (1987) (officer outside territorial limits of his authority could request motorist to submit to blood alcohol content test in accordance with the Idaho implied consent statute); State v. Torgerson, 453 N.W.2d 698 (Minn. 1990) (Minnesota officer properly arrested and administered sobriety tests to defendant after ambulance personnel had transported defendant to a nearby North Dakota hospital); State v. Steinbrunn, 54 Wash. App. 506, 512, 774 P.2d 55 (1989) (defendant, injured in car accident in Washington, transported to Oregon hospital where Washington state trooper arrested him while he lay unconscious and ordered nurse to draw blood samples; held that Washington officer acted lawfully).


Minnesota officer properly arrested and administered sobriety tests to defendant after ambulance personnel had transported defendant to a nearby North Dakota hospital


Context: Aside from this mistaken interpretation of law, Major Anderson has made no argument or showing that his request to the Board was anything other than informed and carefully contemplated. His mistaken interpretation of the law does not obviate the fact that Major Anderson apparently undertook a careful consideration of his career and circumstances prior to filing his appeal with the Board and making his request to be left in the Reserves.

finding that a criminal defendant's guilty plea was a valid waiver of his rights and that "he assume[d] the risk o[f] ordinary error in either his or his attorney's assessment of the law and facts"

Cf. McMann v. Richardson, 397 U.S. 759, 774, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (finding that a criminal defendant’s guilty plea was a valid waiver of his rights and that “he assume[d] the risk o[f] ordinary error in either his or his attorney’s assessment of the law and facts”); Bridges v. United States, 794 F.2d 1189, 1194 (7th Cir.1986) (“The waiver of constitutional rights, in general, may be effective even without specific knowledge of all the implications.”).

See Turnage v. Dep’t. of Agriculture, 230 Ct.Cl. 799, 1982 WL 25186 (1982) (holding that an express waiver of the right to a hearing before an administrative board was a tactical decision, made knowingly and voluntarily despite the plaintiffs misinterpretation of the applicable law and regulations).


"The waiver of constitutional rights, in general, may be effective even without specific knowledge of all the implications."


Context: Therefore, the real issue in this case is not which state's dead man's statute might apply but whether I should apply Maryland's dead man statute; that is, the question is whether Maryland courts would categorize Maryland's dead man's statute as procedural (requiring that it apply in this case) or substantive (permitting its non-application in this case, as the substantive law of Connecticut applies). It seems safe to say, if presented with the question, Maryland would consider the history of the dead man's statute, its own precedent, and the musings of other courts and treatises to determine whether a dead man's statute should ordinarily be characterized as procedural or substantive. If required to decide the issue, I would conclude that the Maryland Court of Appeals more likely than not would determine the statute to be procedural and thus apply the state dead man's statute to all cases tried in Maryland, notwithstanding the application of the substantive law of another state.

explaining that a procedural statute is one that relates "solely to the remedy which may be employed to enforce or to protect a right which already exists"

See Wittel v. Baker, 10 Md.App. 531, 272 A.2d 57, 60 (1970) (explaining that a procedural statute is one that relates “solely to the remedy which may be employed to enforce or to protect a right which already exists”); see also Grain Dealers Mut. Ins. Co. v. Van Buskirk, 241 Md. 58, 215 A.2d 467, 472 (1965) (determining that Maryland service of process law applied in a case in which Virginia substantive law was applicable); Finch v. Hughes Aircraft Co., 57 Md.App. 190, 469 A.2d 867, 887 (1984); and see Baker v. General Motors Corp., 522 U.S. 222, 238, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998)(ob-serving that a forum state decides witness competency in its courts)(dicta).


ob-serving that a forum state decides witness competency in its courts


Context: Most courts have held that a state statute of limitations should be borrowed to apply to a cause of action under Title VI or analogous statutes.

180-day period for filing a complaint under Title VI regulations -- 34 C.F.R. SS 100.7 -- applied to claim brought under Title IX

Andrews v. Consolidated Rail Corp., 831 F.2d 678, 683-84 (7th Cir.1987) (Indiana state statute of limitations for actions relating to employment applied to action under Rehabilitation Act, 29 U.S.C. § 794); Chambers v. Omaha Public School Distr., 536 F.2d 222 (8th Cir.1976) (state statute of limitations for actions brought under federal statute covers claims under §§ 1981, 1983 and Title VI); Lewis v. Russe, 713 F.Supp. 1227 (N.D.Ill.1989) (Illinois statute of limitations for civil actions not otherwise covered by a statute of limitations applied to a Title VI action); Brown v. City of Salem, 40 E.P.D. Para. 36,348, 1986 WL 11750 (D.Mass.1986) (state statute of limitations for personal injury actions applied to §§ 1981, 1983 and Title VI claims); Champion v. Georgia Bureau of Investigation, 568 F.Supp. 712 (N.D.Ga.1983) (Georgia 180-day statute of limitations for unlawful employment practices applied to Title VI action); Barcia v. Sitian, 89 F.R.D. 382 (S.D.N.Y.1981) (New York statute of limitations for actions based on statute applied to § 1983 and Title VI claims); Vulcan Society v. Fire Department, 82 F.R.D. 379 (S.D.N.Y.1979) (same); but see, Bougher v. University of Pittsburgh, 882 F.2d 74 (3d Cir.1989) (180-day period for filing a complaint under Title VI regulations — 34 C.F.R. § 100.7 — applied to claim brought under Title IX).

Indiana state statute of limitations for actions relating to employment applied to action under Rehabilitation Act, 29 U.S.C. SS 794


state statute of limitations for actions brought under federal statute covers claims under SSSS 1981, 1983 and Title VI


Illinois statute of limitations for civil actions not otherwise covered by a statute of limitations applied to a Title VI action


state statute of limitations for personal injury actions applied to SSSS 1981, 1983 and Title VI claims


Georgia 180-day statute of limitations for unlawful employment practices applied to Title VI action


New York statute of limitations for actions based on statute applied to SS 1983 and Title VI claims


Context: Even after Boykin, these types of eonclusory allegations of discrimination, unsupported by specific factual allegations, have been found insufficient to state a claim under SSSS 1981 and 1982.

dismissing SS 1982 claim where "[n]o identification of particular events or facts underlying the race-based discrimination claims [was] set forth in the amended complaint"

See Sanders, 367 Fed.Appx. at 175 (concluding that dismissal of § 1982 claim was proper because the plaintiffs’ allegation “that ‘defendants discriminated against plaintiffs on account of their race and national origin in violation of section 1982’ d[id] not state a plausible claim to relief,” and although a different paragraph in the complaint “d[id] allege facts consistent with a discrimination claim, i.e., that non-black residents were granted subsidies, it nevertheless ‘stops short of the line between possibility and plausibility of entitlement to relief,’ because plaintiffs d[id] not allege any facts supporting an inference of racial animus” (alterations, emphasis, and citations omitted) (quoting Iqbal, 129 S.Ct. at 1949)), Ng, 2010 WL 889256, at *12-13 (concluding that §§ 1981 and 1982 claims were wholly conclusory and lacked factual specificity); Reyes v. Fairfield Props., 661 F.Supp.2d 249, 269 (E.D.N.Y.2009) (dismissing § 1982 claim where “[n]o identification of particular events or facts underlying the race-based discrimination claims [was] set forth in the amended complaint”); see also Mian, 7 F.3d at 1088 (dismissing § 1981 claim because “an essential element ... is a requirement that the alleged discrimination took place because of the [plaintiffs] race,” and the “complaint fail[ed] to offer more than conclusory allegations that he was discriminated against because of his race”); Dove, 56 F.Supp.2d at 338 (dismissing § 1981 claim where the amended complaint was “devoid of facts to support [the plaintiffs] determination that the actions taken by [defendants were motivated by his race”); Harary, 983 F.Supp. at 99-100 (dismissing § 1982 claims because the plaintiff did not plead facts supporting her contention of intentional racial discrimination or supply any examples other than her own); cf. Barkley, 2007 WL 2437810, at *11-12 (denying motion to dismiss §§ 1981 and 1982 claims, where the complaint “not only allege[d] that plaintiffs were targeted for fraud because of their race, but also contain[ed] detailed allegations of defendants’ efforts to accomplish this targeting through advertising and other modes of minority-focused outreach and race-sensitive recruiting,” but acknowledging that standing alone, an allegation that “the various actions constituting the fraud were taken deliberately and with racially discriminatory intent ... might be too conclusory to allege intentional racial discrimination” (internal quotation marks omitted)).

dismissing SS 1981 claim because "an essential element ... is a requirement that the alleged discrimination took place because of the [plaintiffs] race," and the "complaint fail[ed] to offer more than conclusory allegations that he was discriminated against because of his race"


dismissing SS 1981 claim where the amended complaint was "devoid of facts to support [the plaintiffs] determination that the actions taken by [defendants were motivated by his race"


dismissing SS 1982 claims because the plaintiff did not plead facts supporting her contention of intentional racial discrimination or supply any examples other than her own


Context: On the videotape, DeSalvo claimed knowledge and expertise in furnishing Medicare providers with substantial, no-risk benefits by subscribing to lost charge audit services. The videotape illustrated DeSalvo's promotion of and proficiency in lost charge audits, thus tending to show that when she previously submitted false Medicare claims, she knew them to be false. Similar cases have found applicability of Rule 404(b) in less persuasive circumstances.

See United States v. McDonald, 576 F.2d 1350, 1356 (9th Cir.) (finding that developer’s subsequent statements on land deals implied knowledge of previously fraudulent conduct), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (1978); see also United States v. Bibo-Rodriguez, 922 F.2d 1398, 1399 (9th Cir.) (holding that despite differences in method, evidence of subsequent drug smuggling could be admitted to show prior knowledge and intent), cert. denied, 501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991).

finding that developer's subsequent statements on land deals implied knowledge of previously fraudulent conduct


Context: The Court continued that crimes involving "failure to report (or to return)" to detention represent "a form of inaction, a far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion." Id. at 691-92 (internal marks and citation omitted). Here, we must reexamine Chambers's impact upon our holding that all escape convictions are crimes of violence for purposes of the career offender provisions.

"We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court."

See United States v. Mitchell, 518 F.3d 740, 752 n. 14 (10th Cir.2008) (“We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”) (emphasis supplied); cf. United States v. Ford, 560 F.3d 420, 422-23 (6th Cir.2009) (“[Chambers ] requires us to modify our prior decisions suggesting that all manner of escape ... including failures to report, constitute crimes of violence. Chambers ... undermines the notion that a ‘walkaway1 conviction is a crime of violence.”).

"[Chambers ] requires us to modify our prior decisions suggesting that all manner of escape ... including failures to report, constitute crimes of violence. Chambers ... undermines the notion that a 'walkaway1 conviction is a crime of violence."


Context: Consequently, Defendants' First Amendment arguments must fail. The alleged appropriation of Plaintiffs' marks for commercial purposes is not protected by the First Amendment.

"[T]he Lanham Act customarily avoids violating the First Amendment, in part by enforcing a trademark only when consumers are likely to be misled or confused by the alleged infringer's use."

Facenda, 542 F.3d at 1018 (“[T]he Lanham Act customarily avoids violating the First Amendment, in part by enforcing a trademark only when consumers are likely to be misled or confused by the alleged infringer’s use.”); see also Taubman Co., 319 F.3d at 775 (noting that the misleading commercial speech that the Lanham Act deals with is not entitled to First Amendment protection).


Context: To show prejudice, the defendant must show a reasonable probability that, had the evidence been disclosed to the defense earlier, the result of the proceeding would have been different. When Brady material is disclosed at trial, the defendant's failure either to object to the admission of the evidence on this basis or to request a continuance waives the error "or at least indicates that the delay in receiving the evidence was not truly prejudicial."

See Apolinar v. State, 106 S.W.3d 407, 421 (Tex.App.-Houston [1st Dist.] 2003), aff'd on other grounds, 155 S.W.3d 184 (Tex.Crim.App.2005) (holding that failure to request continuance waives complaint that State withheld exculpatory evidence in violation of Brady); see also Smith v. State, 314 S.W.3d 576, 586 (Tex.App.-Texarkana 2010, no pet.) (holding Brady challenge not preserved because trial court never ruled on complaint); Jones v. State, 234 S.W.3d 151, 158 (Tex.App.-San Antonio 2007, no pet.) (holding that defendant must request continuance and present Brady complaint in motion for new trial to preserve complaint for appellate review); Young v. State, 183 S.W.3d 699, 706 (Tex.App.-Tyler 2005, pet. ref'd) (“The failure to request [a continuance] waives any Brady violation, as well as any violation of a discovery order.”).


"The failure to request [a continuance] waives any Brady violation, as well as any violation of a discovery order."


Context: However, our decision here will result in a substantial award to Mrs. Bocanegra, with opposite financial consequences for Mr. Bocanegra. On remand, therefore, the court must reconsider its attorney fee award in light of this decision.

See Ovens v. Ovens, 61 Wn.2d 6, 11, 376 P.2d 839 (1962) (court evaluated former spouse's need in light of amount of underlying judgment); see also In re Marriage of Mason, 40 Wn. App. 450, 458, 698 P.2d 1104 (court vacated attorney fee award on basis of changes in parties' financial circumstances after entry of award), review denied, 104 Wn.2d 1017 (1985).


Context: Nguyen v. Med. Quality Assur. However, the full protections enjoyed by criminal defendants are not necessarily available in such quasi-criminal proceedings.

See Nguyen, 144 Wn.2d at 527-28 (holding that clear and convincing evidence, rather than proof beyond a reasonable doubt, is required to impose sanctions in disciplinary proceedings); cf. Rowe v. Dep’t of Licensing, 88 Wn. App. 781, 784-85, 946 P.2d 1196 (1997) (holding that suspension of a driver’s license for conduct already sanctioned in a criminal case did not violate defendant’s constitutional rights against double jeopardy because it served a remedial purpose beyond the criminal penalties).

holding that suspension of a driver's license for conduct already sanctioned in a criminal case did not violate defendant's constitutional rights against double jeopardy because it served a remedial purpose beyond the criminal penalties


Context: {P 33} Moreover, prospective application of R.C. 2929.191 does not implicate double-jeopardy concerns arising from the imposition of multiple punishments for the same offense at successive proceedings. On or after the effective date of R.C. 2929.191, an offender can have no legitimate expectation of finality in a sentence rendered defective by the trial court's failure to properly impose a mandatory term of postrelease control, because an offender is charged with knowledge of the fact that his sentence is legally incomplete and that R.C. 2929.191 provides a statutory mechanism to correct it.

See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 36, citing Jones v. Thomas (1989), 491 U.S. 376, 395, 109 S.Ct. 2522, 105 L.Ed.2d 322 (in which Justice Scalia, in dissent, explained that a defendant cannot argue that his legitimate expectation of finality has been violated when he is charged with knowledge that the court lacked statutory authority to impose the sentence in the first instance); see also United States v. Husein (C.A.6, 2007), 478 F.3d 318, 338, quoting United States v. Fogel (C.A.D.C., 1987), 829 F.2d 77, 87 (“ ‘A defendant has a legitimate expectation in the finality of a sentence unless he is or should be aware at sentencing that the sentence may permissibly be increased ’ ” [emphasis added in Husein]).

" 'A defendant has a legitimate expectation in the finality of a sentence unless he is or should be aware at sentencing that the sentence may permissibly be increased ' " [emphasis added in Husein]


Context: The Commission now argues that it discounted Dwyer's testimony because Dwyer was relying on a USWC value study which the Commission found unreliable and expressly refused to consider. However, the record re veals that Dwyer relied on the value study only to determine the percentage of USWCS's activities relating to marketing. Dwyer's testimony that the services rendered by USWCS were not duplicative was not based on the value study, but on his own personal knowledge. Therefore, we conclude that the Commission acted arbitrarily and capriciously in ignoring Dwyer's uneontra-dicted testimony and in concluding that USWC did not meet its burden of proving that the services provided by USWCS were not duplicative.

"The law does not invest the Commission with any such arbitrary power to disbelieve or disregard uncontradicted, competent, credible evidence, as it appears to have done here."

See Jones v. California Packing Corp., 121 Utah 612, 244 P.2d 640, 644 (1952) (“The law does not invest the Commission with any such arbitrary power to disbelieve or disregard uncontradicted, competent, credible evidence, as it appears to have done here.”); cf. De Vas v. Noble, 13 Utah 2d 138, 369 P.2d 290, 293 (1962) (arbitrary and unreasoning distortions of justice could occur if courts were permitted to ignore credible and uncontradicted evidence), cert. denied, 371 U.S. 821, 83 S.Ct. 37, 9 L.Ed.2d 61 (1962). Accordingly, we reverse and remand to the Commission to reconsider the reasonableness of USWC’s expenses for marketing services rendered by USWCS. Utah Code Ann. § 63-46b-16(4)(h)(iv).


Context: We have upheld stops of persons under ORS 131.615(1) based on information from victims of or witnesses to crimes and confidential informants in several cases.

invalidating stop based on informant's tip that illegal deer killing was occurring on certain property, when tip did not relate to any particular person or vehicle

See State v. Taylor, 62 Or App 586, 661 P2d 569, rev den 295 Or 297 (1983) (informant’s tip that he had observed possession and sale of cocaine in car in which the defendant was subsequently discovered); State v. Dickenson, 43 Or App 1023, 607 P2d 754 (1979) (anonymous phone call and numerous complaints that the defendant was catching salmon out of season); State v. Lindstrom, supra (victim’s complaint); State v. Pent, 29 Or App 249, 562 P2d 1239, rev den 280 Or 1 (1977) (apartment manager’s tip that the defendant had entered an apartment in the absence of its tenant and left five to ten minutes later); but see State v. Odam, 40 Or App 551, 595 P2d 1277 (1979), aff’d by equally divided court 290 Or 160, 619 P2d 647 (1980) (invalidating stop based on informant’s tip that illegal deer killing was occurring on certain property, when tip did not relate to any particular person or vehicle).

informant's tip that he had observed possession and sale of cocaine in car in which the defendant was subsequently discovered


anonymous phone call and numerous complaints that the defendant was catching salmon out of season


apartment manager's tip that the defendant had entered an apartment in the absence of its tenant and left five to ten minutes later


Context: The suspension of permits by gubernatorial fiat does not resemble the low-level misconduct at issue in Parrott and Hudson, and allowing a procedural due process claim based on the Governor's involvement in the permit suspension would not make a federal case out of an ordinary tort. To the contrary, such a claim would be consistent with longstanding precedent holding that SS 1983 is available as a remedy for injuries inflicted by the abuse of state power, as well as by state law itself.

noting that Monroe "rejected the view that SS 1983 applies only to violations of constitutional rights that are authorized by state law, and does not reach abuses of state authority that are forbidden by the State's statutes or Con stitution or are torts under the State's common law"

See Monroe v. Pape, 365 U.S. 167, 175-76, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (explaining that § 1983 was created, in part, as a remedy “against those who representing a State in some capacity were unable or unwilling to enforce a state law”); id. at 183, 81 S.Ct. 473 (“It is no answer that the State has a law which if enforced would give relief.”); see also Zinermon, 494 U.S. at 124, 110 S.Ct. 975 (noting that Monroe “rejected the view that § 1983 applies only to violations of constitutional rights that are authorized by state law, and does not reach abuses of state authority that are forbidden by the State’s statutes or Con stitution or are torts under the State’s common law”); id. at 125, 110 S.Ct. 975 (“[I]n many cases there is ‘no quarrel with the state laws on the books’; instead, the problem is the way those laws are or are not implemented by state officials.” (quoting Monroe, 365 U.S. at 176, 81 S.Ct. 473) (citation omitted)).

explaining that SS 1983 was created, in part, as a remedy "against those who representing a State in some capacity were unable or unwilling to enforce a state law"


"It is no answer that the State has a law which if enforced would give relief."


Context: . Other courts in the United States that have considered the issue have reached the same conclusion.

"[Wjhile an innkeeper is often held to a specially high duty of care, the general rule, nationally, falls short of warranty."

See Ely v. Blevins, 706 F.2d 479, 481 (4th Cir.1983) ("[Wjhile an innkeeper is often held to a specially high duty of care, the general rule, nationally, falls short of warranty.”); Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 27 (Tex.App.1995) (hotel which did not sell or manufacture balcony railing cannot be held liable on design defect theory); cf. Jones v. Keetch, 388 Mich. 164, 167-68, 200 N.W.2d 227, 229 (Mich.1972) (hotel guest has viable claim against hotel for breach of implied warranty of fitness for a particular purpose).


hotel which did not sell or manufacture balcony railing cannot be held liable on design defect theory


Context: We agree that the statute gives the Attorney General discretion, but disagree that this ends the analysis as to whether the Attorney General can promulgate this particular categorical eligibility exclusion. The Supreme Court itself has ruled that the two questions of discretion as to the ultimate relief and discretion as to eligibility exclusions are distinct.

See Cardoza-Fonseca, 480 U.S. at 443-44, 107 S.Ct. 1207 (distinguishing between the discretion in the Attorney General as to the ultimate decision to grant relief and the underlying process and criteria for eligibility for relief); see also Goncalves, 144 F.3d at 125 (“Analytically, the decision whether an alien is eligible to be considered for a particular discretionary form of relief is a statutory question separate from the dis cretionary component of the administrative decision whether to grant relief.”).

"Analytically, the decision whether an alien is eligible to be considered for a particular discretionary form of relief is a statutory question separate from the dis cretionary component of the administrative decision whether to grant relief."


Context: In light of the specific allegations of Defendants' deliberate indifference to the conditions at BCB, Plaintiffs have adequately stated a claim under the second prong of the due process analysis.

See Walker, 111 F.3d at 130 (plaintiffs allegations that he directly spoke to defendants about conditions and that certain defendants directly witnessed conditions were sufficient to satisfy deliberate indifference on motion to dismiss); see also Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir.2001) (asserting that defendant prison guards “made daily rounds of SHU” was sufficient to allege that defendants had actual knowledge of obvious inhumane conditions).

asserting that defendant prison guards "made daily rounds of SHU" was sufficient to allege that defendants had actual knowledge of obvious inhumane conditions


Context: . The omission of a definition of "State" from the modem Bankruptcy Code was recognized as an error almost as soon as the modern Code was enacted. See Lubben, 88 Am. Bankr.L.J. at 573-75. Most assumed that the Code would still apply to Puerto Rico because, despite the significant substantive and procedural changes that the Code made to pre-Code law, those changes were tangential to the continued applicability of the federal bankruptcy law to Puerto Rico.

explaining that the Code is not to be construed "to erode past bankruptcy practice absent a clear indication that Congress intended such a departure"

See, e.g., id. at 572-73 & n. 125; see also In re Segarra, 14 B.R. 870, 872-73 (D.P.R.1981) (finding nothing that "would indicate that anyone in the vast bureaucracy of the federal government has had the slightest doubt that Congress did not intend the Bankruptcy Code to extend to Puerto Rico”); cf. Cohen, 523 U.S. at 221-22, 118 S.Ct. 1212 (explaining that the Code is not to be construed "to erode past bankruptcy practice absent a clear indication that Congress intended such a departure”); Wellness Int’l Network, Ltd. v. Sharif, - U.S. -, 135 S.Ct. 1932, 1939, 191 L.Ed.2d 911 (2015) (describing the Code’s expansion of power given to courts adjudicating bankruptcy cases).

finding nothing that "would indicate that anyone in the vast bureaucracy of the federal government has had the slightest doubt that Congress did not intend the Bankruptcy Code to extend to Puerto Rico"


describing the Code's expansion of power given to courts adjudicating bankruptcy cases


Context: Because it is not claimed that the product is harmful, the government's underlying -- if unarticulated-- premise must be that consumers have a limited amount of either attention or dollars that could be devoted to pursuing health through nutrition, and therefore products that are not indisputably health enhancing should be discouraged as threatening to crowd out more worthy expenditures. We are rather dubious that this simplistic view of human nature or market behavior is sound, but, in any event, it surely cannot be said that this notion-- which the government does not even dare openly to set forth -- is a direct pursuit of consumer health; it would seem a rather indirect route, to say the least.

See Bates v. State Bar of Arizona, 433 U.S. 350, 375, 97 5.Ct. 2691, 53 L.Ed.2d 810 (1977) (“[W]e view as dubious any justification that is based on the benefits of public ignorance.”); cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (opinion of Stevens, J., joined by Kennedy, J., and Ginsburg, J.) (“The First Amendment directs us to be especially skeptical of regulations [of indisputably non-misleading information] that seek to keep people in the dark for what the government perceives to be their own good.”).

"[W]e view as dubious any justification that is based on the benefits of public ignorance."


Context: Thus, the policy goal of Iowa tort law appears to be to "fully compensate" tort victims. This policy goal is identical under Minnesota tort law.

"this court has often said that it is in the interest of this state to see that tort victims are fully compensated."

See Bigelow v. Halloran, 313 N.W.2d 10, 12 (Minn.1981) (“this court has often said that it is in the interest of this state to see that tort victims are fully compensated.”); see also Jepson v. General Cas. Co. of Wisconsin, 513 N.W.2d 467, 470 (Minn.1994) (observing that “Minnesota places great value in compensating tort victims.”); Jacobson v. Universal Underwriters Ins. Group, 645 N.W.2d 741, 746-47 (Minn.Ct.App.2002) (noting that it was Minnesota’s “important governmental interest” in seeing that all tort victims are fully compensated); Gimmestad v. Gimmestad, 451 N.W.2d 662, 666 (Minn.Ct.App.1990) (“Minnesota is interested in seeing that ‘tort victims are fully compensated.’ ”) (quoting Bigelow, 313 N.W.2d at 12). Iowa’s interest in this litigation, however, is not founded solely on an interest in fully compensating tort victims, Iowa has a further interest in application of its law because the allegedly tortious conduct occurred in Iowa. Therefore, where the court has determined, based on the § 145(2) “contacts,” that Iowa’s interest is “dominant,” the § 6 “factors” requiring consideration and comparison of the policies and relative interests of the nominee states also weigh in favor of application of Iowa law in this case.

observing that "Minnesota places great value in compensating tort victims."


noting that it was Minnesota's "important governmental interest" in seeing that all tort victims are fully compensated


Context: While Plaintiffs may have abandoned this argument given the Florida Supreme Court's amendment of the appellate rules, the Court nonetheless notes that Florida's Act provides a bypass procedure that is every bit as expeditious as procedures that were upheld by the Supreme Court in Akron. In Akron, the Court upheld an Ohio statute that requires the trial court to make its waiver decision within five "business days" after the minor files her bypass petition, requires the court of appeals to docket an appeal within four "days" after the minor files a notice of appeal, and requires the court of appeals to render a decision within five "days" after docketing. Against an argument that Ohio's bypass procedure could take up to 22 calendar days, assuming that the Ohio Legislature meant for all of the references to "days" to mean "business days," the Supreme Court wrote: "[blinder our precedents, the mere possibility that the procedure may require up to 22 days in a rare case is plainly insufficient to invalidate the statute on its face."

also suggesting that an interpretation of the term "days," as used in the statute's provision regarding the appellate court's responsibilities, to mean business days instead of calendar days "seems inappropriate and unnecessary because of the express and contrasting use of 'business days' in [the statute's provision regarding the trial court's responsibilities]"

Akron 497 U.S. at 514, 110 S.Ct. 2972 (also suggesting that an interpretation of the term “days,” as used in the statute’s provision regarding the appellate court’s responsibilities, to mean business days instead of calendar days “seems inappropriate and unnecessary because of the express and contrasting use of ‘business days’ in [the statute’s provision regarding the trial court’s responsibilities]”); see also Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (upholding a Missouri statute that could require 17 calendar days plus a sufficient time for deliberation and decision-making at both the trial and appellate levels); Planned Parenthood Ass’n of the Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1482 (11th Cir.1991) (rejecting the plaintiffs lack of expediency argument, stating that “the mere possibility that a court will utilize all the time allotted to it by the legislature, and thereby extend the petition procedure to nineteen days, would be insufficient to invalidate the [Georgia Parental Notification Act] on its face”).


rejecting the plaintiffs lack of expediency argument, stating that "the mere possibility that a court will utilize all the time allotted to it by the legislature, and thereby extend the petition procedure to nineteen days, would be insufficient to invalidate the [Georgia Parental Notification Act] on its face"


Context: We need not determine whether the district court clearly erred in finding that Spaulding knew of the possible criminal charges. Even assuming that Spaulding is correct and that the third factor weighed heavily in his favor, Spaulding would still be required to show actual prejudice because the reason for the delay did not weigh heavily against the government.

concluding that the defendant must establish actual prejudice because the reasons for the delay weighed in the government's favor

See Ingram, 446 F.3d at 1336 (noting that only if “all three of these factors weigh heavily against the Government, the defendant need not show actual prejudice”); see also Schlei, 122 F.3d at 988 (concluding that the defendant must establish actual prejudice because the reasons for the delay weighed in the government’s favor).

noting that only if "all three of these factors weigh heavily against the Government, the defendant need not show actual prejudice"


Context: 1 44 Divisions of this court have consistently held that "the privilege against self-incrimination is not implicated by a court-ordered mental examination when the information obtained therefrom is admitted only on the issue of mental condition."

Herrera, 87 P.3d at 245 (evidence derived from court-ordered examinations concerning a defendant's capacity to form the requisite mental state is constitutionally admissible); see People v. Galimanis, 765 P.2d 644, 647 (Colo.App.1998) (only compulsion of evidence on the issue of guilt implicates a defendant's privilege against self-incrimination); see also People v. Tally, 7 P.3d 172, 182-83 (Colo.App.1999) (a psychiatrist's testimony at a unitary trial on defendant's silence during a sanity exam did not violate Fifth Amendment).


a psychiatrist's testimony at a unitary trial on defendant's silence during a sanity exam did not violate Fifth Amendment


Context: . One significant question is the effect of a final judgment of liability resulting from breach of the defense duty notwithstanding a subsequent declaration that the policy did not cover the claim.

finding that insurer had no duty to defend but that evidence that insurer had taken position that it had no duty to indemnify until limits of insured's underlying policies were actually paid created fact issue as to whether insurer anticipatorily repudiated policy

See Amato v. Mercury Cas. Co., 53 Cal.App.4th 825, 61 Cal.Rptr.2d 909, 914 (1997) (finding that insurer who wrongfully refuses to defend must pay full default judgment even if claim was not covered by policy); cf. Grace v. Insurance Co. of N. Am., 944 P.2d 460, 468 (Alaska 1997) (finding that insurer had no duty to defend but that evidence that insurer had taken position that it had no duty to indemnify until limits of insured’s underlying policies were actually paid created fact issue as to whether insurer anticipatorily repudiated policy).


Context: Other courts following SSR 00--4p, however, require the ALJ to elicit an explanation for an apparent conflict from the VE before relying on the VE's evidence and remand to the ALJ if such an inquiry is not made. In particular, many courts remand for further administrative proceedings where the ALJ fails to inquire to the VE about testimony that a claimant limited to simple tasks is capable of performing jobs that are incompatible with the DOT's reasoning level classifications.

See also Money v. Barnhart, 91 Fed.Appx. 210 (3d Cir.2004) (decided before SSR 00-4p but finding work at reasoning level two does not contradict mandate for simple, routine, repetitive work).

remanding to ALJ pursuant to SSR 00-4p when apparent conflict between VE's assessment that claimant limited to simple and repetitive tasks could perform certain jobs that DOT classified as reasoning level three

See Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir.2005) (remanding to ALJ pursuant to SSR 00-4p when apparent conflict between VE’s assessment that claimant limited to simple and repetitive tasks could perform certain jobs that DOT classified as reasoning level three); Whitzell v. Barnhart, 379 F.Supp 2d 204, 219 (D.Mass.2005) (remanding in accordance with SSR 00-4p where apparent conflict between limitation of “simple tasks” and jobs with reasoning level of two); Carter v. Barnhart, 2005 WL 3263936 (D.Me.2005) (remanding because ALJ’s limitation to simple repetitive tasks and DOT’s assigned reasoning level of three required ALJ to question the VE about the discrepancy); Mead, supra at n. 3 (citing to SSR 00-4p as requiring ALJ to ask VE whether his opinion conflicted with DOT descriptions of jobs suggested even though claimant’s counsel did not raise issue in administrative proceeding); Cooper, supra at n. 3 (finding ALJ has an affirmative duty to inquire whether VE’s testimony presents any conflicts with DOT and remanding to ALJ because VE’s testimony that claimant who was limited to simple and repetitive tasks could perform work requiring reasoning level two or three possibly conflicted with DOT).


remanding because ALJ's limitation to simple repetitive tasks and DOT's assigned reasoning level of three required ALJ to question the VE about the discrepancy


Context: Moreover, "the Board and its administrative judges have an obligation to inform the parties what is required to establish their cases. This obligation is particularly significant where, as here, the appellant is appearing pro se."

stating that "to ensure fairness, the administrative judge should have advised the appellant prior to the close of the record that she had not provided the evidence to prove her claim"

Harless v. Office of Pers. Mgmt., 71 M.S.P.R. 110, 113 (1996) (remanding because the administrative judge failed to instruct the appellant that he must support his claim of financial hardship with appropriate evidence); see also Goodnight v. Office of Pers. Mgmt., 49 M.S.P.R. 184, 187-89 (1991) (stating that “to ensure fairness, the administrative judge should have advised the appellant prior to the close of the record that she had not provided the evidence to prove her claim”); cf. Wilson v. Dep’t of Health & Human Servs., 834 F.2d 1011, 1012 (Fed.Cir.1987) (finding that an administrative judge should have informed appellant of deficiencies in her proof of entitlement to attorney’s fees).


finding that an administrative judge should have informed appellant of deficiencies in her proof of entitlement to attorney's fees


Context: On the opposite side, certain class members and their attorneys argued that the notice was insufficient and requested additional information beyond that set forth in the notice, including access to all discovery taken since class counsel began working on this matter in 1999. Similar such requests have been held to be within the discre tion of the trial court and have been routinely denied by courts examining class action settlements. See e.g., In re Lorazepam & Clorazepate Antitrust Litigation, nos.

Cf. NASDAQ Market-Makers, 182 F.R.D. at 71-72 (exercising discretion to allow individual class member access to discovery materials).

denying individual class member's request to engage in additional discovery

MDL 1290(TFH) & 99MS276(TFH), 2001 WL 1335702, at *2 (D.D.C. Sept. 4,2001) (denying individual class member’s request to engage in additional discovery); Prudential I, 962 F. Supp. at 563 (“[OJbjectors have no absolute right to take independent discovery to prepare for a fairness hearing.”).


"[OJbjectors have no absolute right to take independent discovery to prepare for a fairness hearing."


Context: The district court accepted the arguments that Catholic University made on the constitutional issue; namely, that the application of Title VII to the University would violate the Free Exercise Clause on the basis of the ministerial exception as supported by the pr e-Smith case law. If we were to conclude that the court came to the right conclusion through erroneous reasoning because it failed to take the effect of Smith's rejection of the compelling interest test on the exception and the exception's subsequent restora tion by RFRA, we could nonetheless affirm the court by taking account of the Act and its retroactive effect.

"if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason"

See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed. 224 (1937) (“if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason”); see also Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 1718, 114 L.Ed.2d 152 (1991) (“[w]hen an issue ... is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law”).

"[w]hen an issue ... is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law"


Context: "The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property."

"[Ejarly constitutional theorists did not believe the Takings Clause embraced regulations of property at all"

Lingle, 544 U.S. at 537, 125 S.Ct. 2074; see, e.g., United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809 (1951) (Government’s seizure and operation of a coal mine to prevent a national strike of coal miners effected a taking); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (Government’s occupation of private warehouse effected a taking). “Indeed, until the Supreme Court’s watershed decision in Pennsylvania Coal Co. v. Ma-hon, ... ‘it was generally thought that the Takings Clause reached only a direct appropriation of property, or the functional equivalent of a practical ouster of the owner’s possession.’ ” Lingle, 544 U.S. at 537, 125 S.Ct. 2074 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (internal brackets, citations, and emphasis omitted)); see also Id., at 1028 n. 15, 112 S.Ct. 2886 (“[Ejarly constitutional theorists did not believe the Takings Clause embraced regulations of property at all”).

Government's seizure and operation of a coal mine to prevent a national strike of coal miners effected a taking


Context: Moreover, plaintiff never actually requested informal counseling or for an extension of time to do so. Instead, she filed an untimely administrative complaint. Consequently, plaintiff is not entitled to equitable tolling.

Zerilli-Edelglass, 333 F.3d at 81 (declining to toll EEOC filing deadline where plaintiff failed to act with diligence to preserve her legal rights); Chapman, 288 F.3d at 512 (“a want of diligence by a plaintiffs attorney generally will not prompt a court to provide relief from a limitations period by way of an equitable toll.”); Boos, 201 F.3d at 185 (rejecting plaintiffs claim to equitable tolling); see also Saab Cars, 28 F.3d at 12 (“a plaintiffs failure to act diligently is not a reason to invoke equitable tolling”); Lynk, 2000 WL 178859, at *7 (equitable tolling denied where plaintiff waited more than 270 days to seek informal counseling).

"a plaintiffs failure to act diligently is not a reason to invoke equitable tolling"


equitable tolling denied where plaintiff waited more than 270 days to seek informal counseling


"a want of diligence by a plaintiffs attorney generally will not prompt a court to provide relief from a limitations period by way of an equitable toll."


Context: Appellant argues that this case presented unusual circumstances because the incidents in question involved three juvenile witnesses who were testifying about events that occurred three to seven years earlier. The proper focus, however, is on the competence of the witnesses while testifying at trial, not their age at the time of the events.

See Smith v. United States, 414 A.2d 1189, 1197-1198 (D.C.1980) (eight-year-old girl found competent to testify about a murder that occurred when she was three and a half); cf. Robinson v. United States, 642 A.2d 1306, 1310-1311 (D.C.1994) (upholding refusal to admit evidence of excessive drinking by government witness six years before the date of the crime).


Context: That language's plain meaning is that Once .the property belongs to the FDIC, that is, when-, the FDIC acts as receiver, no liens shall attach.'') (emphasis omitted). Additionally, courts have consistently found in the context of similar federal laws that the term "property" includes both-fee and lien interests'in property.

finding -under federal law that Fannie -Mae's mortgage interest iri real property should be treated just like any other property interest

See Rust v. Johnson, 597 F.2d 174, 177 (9th Cir.1979) (finding -under federal law that Fannie -Mae’s mortgage interest iri real property should be treated just like any other property interest); see also Simon, 53 F.3d at 21 (“[T]he term ‘property’ in § 1825(b)(2) encompasses all forms of interest in- property, including mortgages and other liens.”); Matagorda Cnty., 19 F.3d at 222 (“The FDIC’s acquired lien interest in the Law lots is clearly a ‘property’ interest as contemplated in the statute.”); S/N-1 REO Ltd. Liab. Co. v. City of Fall River, 81 F.Supp.2d 142, 150 (D.Mass.1999) ("A lien held by the FDIC as mortgagee is ‘property’ within the meaning of § 1825(b)(2).”). Accordingly, the “property” that is protected from foreclosure by section 4617(j)(3) includes lien interests held by Fannie Mae, such as the mortgage held on the Propérty in this case.

"The FDIC's acquired lien interest in the Law lots is clearly a 'property' interest as contemplated in the statute."


"A lien held by the FDIC as mortgagee is 'property' within the meaning of SS 1825(b


Context: Under the third prong of plain error review, we inquire whether error affected a defendant's substantial rights. "[T]he defendant must demonstrate that the error affected the outcome of the district court proceedings."

holding same under plain error review and finding "it likely that defendant's expressed desire to remain silent tipped the scales for the jury"

See United States v. Harp, 536 F.2d 601, 602-03 (5th Cir.1976) (“Because the prosecutor’s comments struck at the jugular of their story, those remarks cannot be classified as harmless.”); see also United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir.1977) (holding same under plain error review and finding “it likely that defendant’s expressed desire to remain silent tipped the scales for the jury”); United States v. Meneses-Davila, 580 F.2d 888, 895-96 (5th Cir.1978) (holding under plain error review that prosecution’s repeated references to defendant’s silence in a one- day trial were not harmless, despite defendant’s responsive comments on silence). Even though Andaverde-Tiñoco did open the door to some exploration of his companions’ post-arrest statements, and even though Andaverde-Tiñoco waived his Miranda rights at the station, triggering trial-contested testimony about his own cooperation and duress story, we cannot say that his duress defense presented a frivolous argument that had no chance of success such that the Doyle errors did not affect the outcome of the proceedings.

"Because the prosecutor's comments struck at the jugular of their story, those remarks cannot be classified as harmless."


holding under plain error review that prosecution's repeated references to defendant's silence in a one- day trial were not harmless, despite defendant's responsive comments on silence


Context: According to D.M.'s testimony, Silvernail admitted to killing Roberts. Once the jury accepted D.M.'s testimony, the jury did not need to make any factual inferences in order to conclude that Silver-nail caused Roberts's death.

declining to "usurp[ ] the jury's role in assessing credibility"

State v. Pippitt, 645 N.W.2d 87, 94 (Minn.2002); see also State v. Bolstad, 686 N.W.2d 531, 540 (Minn.2004) (declining to “usurp[ ] the jury’s role in assessing credibility”).

"Confessions are held to be direct, rather than circumstantial, evidence of guilt."

See State v. McClain, 208 Minn. 91, 95-96, 292 N.W. 753, 755 (1940) (“Confessions are held to be direct, rather than circumstantial, evidence of guilt.”). Rather, the jury only needed to conclude that D.M. was a credible witness — a determination that is “a function exclusively for the jury.”


Context: On the record before us, we have no trouble in concluding that Section 127 amended the applicable law and thus does not run afoul of Klein. Section 127 directed the Secretary of the Interior to reissue the Captive-Bred Exemption "without regard to any other provision of statute or regulation that applies to issuance of such rule." Although the three antelope species remain endangered and subject to certain requirements under the Act, Congress acted within its constitutional authority in amending the scope of Section 10.

dismissing the appellants' challenge under Klein where Congress had amended the law by "direct[ing] the agency to issue the rule 'without regard to any other provision of statute or regulation that applies to issuance of such rule' "

See Nat’l Coal. to Save Our Mall, 269 F.3d at 1094, 1097 (statute at issue, which applied “Notwithstanding any other provision of law,” did not violate Klein because it “amend[ed] the applicable substantive law”); see also All. for the Wild Rockies v. Salazar, 672 F.3d 1170, 1174 (9th Cir. 2012) (dismissing the appellants’ challenge under Klein where Congress had amended the law by “direct[ing] the agency to issue the rule ‘without regard to any other provision of statute or regulation that applies to issuance of such rule’ ”).

statute at issue, which applied "Notwithstanding any other provision of law," did not violate Klein because it "amend[ed] the applicable substantive law"


Context: Second, courts have recognized that a court's prior investment of time in preparing a decision is a relevant factor in deciding whether to dismiss. See 16AA Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure SS 3988 (4th ed.2008).

denying motion to dismiss "[a]fter a draft of [the] opinion had been written"

See Albers v. Eli Lilly & Co., 354 F.3d 644, 646 (7th Cir.2004) (per curiam) (denying motion to dismiss “[a]fter a draft of [the] opinion had been written”); see also Suntharalinkam v. Keisler, 506 F.3d 822, 828 (9th Cir.2007) (Kozinski, J., dissenting) (dissent “aware of no case where a motion for voluntary dismissal was granted when it was filed after the case was argued and submitted for decision”).

dissent "aware of no case where a motion for voluntary dismissal was granted when it was filed after the case was argued and submitted for decision"


Context: The reliability of expert opinion testimony based on psychiatric or psychological observation and analysis does not readily lend itself to evaluation using the specific Daubert factors.

questioning the fit of the Daubert factors to psychological evidence but finding evidence admissible under Daubert's flexible approach

See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1297-98 (8th Cir.1997) (questioning the fit of the Daubert factors to psychological evidence but finding evidence admissible under Daubert’s flexible approach).

Cf. Elcock, 233 F.3d at 747 (court reviewing social science evidence of vocational rehabilitation could only roughly analogize, to Daubert factors).


Context: Georgia courts have not specifically addressed the question whether a passenger is "using" a vehicle he merely occupies. This Court has, however, addressed the much broader question whether an injury arises out of the "use" of a vehicle. See, e.g., Ga. Farm &c.

courts addressing whether injury arose out of "use" must consider the physical proximity of the injury site to the vehicle, the nature of the conduct which caused the situation of jeopardy, and whether the vehicle was being "utilized" in the plain and ordinary sense of the word

Ins. Co. v. Greene, 174 Ga. App. 120, 124 (329 SE2d 204) (1985) (physical precedent only) (injury arose out of “use” of school bus where “use” includes not only transportation to and from school but also unloading of the bus); Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3 (230 SE2d 70) (1976) (sanitation truck driver was “using” truck when he was struck by another motorist after unloading a garbage container); see also Old Republic Union Ins. Co. v. Floyd Beasley & Sons, Inc., 250 Ga. App. 673, 676-677 (1) (551 SE2d 388) (2001) (courts addressing whether injury arose out of “use” must consider the physical proximity of the injury site to the vehicle, the nature of the conduct which caused the situation of jeopardy, and whether the vehicle was being “utilized” in the plain and ordinary sense of the word).

injury arose out of "use" of school bus where "use" includes not only transportation to and from school but also unloading of the bus


sanitation truck driver was "using" truck when he was struck by another motorist after unloading a garbage container


Context: In analyzing these requirements, a reviewing court must presume that the underlying proceedings were correct and the burden of showing otherwise rests on the petitioner. Notably, that burden is substantial, exceeding that of a habeas petitioner.

See, e.g., U.S. v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989) (stating that the burden placed on a petitioner seeking a writ of coram nobis exceeds the corresponding burden placed on a habeas petitioner); Jimenez, 91 F.3d at 768 n. 6 (same). Accordingly, successful coram no-bis petitions are exceedingly rare and “generally involve[ ] such fundamental defects as deprivation of counsel ... or coerced guilty pleas.”

stating that "[w]here it cannot be deduced from the record whether counsel was properly waived, ... no other remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of eoram nobis must be heard"

U.S. v. Keogh, 391 F.2d 138, 148 (2d Cir.1968) (citation omitted); see also Morgan, 346 U.S. at 512, 74 S.Ct. 247 (stating that “[w]here it cannot be deduced from the record whether counsel was properly waived, ... no other remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of eoram nobis must be heard”).


Context: As an initial matter, there is no question that the dispatch described the motor vehicle with sufficient particularity such that Trooper Dwyer could be certain that the vehicle he stopped was the same one identified by the caller. The dispatch identified the vehicle's color, make, and license plate number, and the address of the registered owner.

caller's report of a man holding a gun in the air not credited, in part because the caller failed to report own location

Contrast Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 792, 795 (2009) (caller’s report of a man holding a gun in the air not credited, in part because the caller failed to report own location); Commonwealth v. Mubdi, supra at 396 (caller’s basis of knowledge questioned where the Commonwealth failed to introduce a 911 call showing that the information was “derived from personal observation rather than hearsay or rumor”).

basis of the caller's knowledge properly was inferred from the report itself, which indicated firsthand observation of erratic operation

See Commonwealth v. Lubiejewski, 49 Mass. App. Ct. 212, 214 (2000) (basis of the caller’s knowledge properly was inferred from the report itself, which indicated firsthand observation of erratic operation).


Context: Plaintiffs allege violations of section 1921 of the New York Real Property Actions & Proceedings Law (hereinafter, "NYRPAPL SS 1921"), which provides that "[a]fter payment of authorized principal, interest, and any other amounts due ... a mortgagee of real property ... must execute and acknowledge ... a satisfaction of mortgage" which is to be recorded. A lender may be subjected to monetary penalties for failing to present a certificate of discharge for recording in a timely manner under the terms of the statute. See id.; see also Cassese MTD Opinion at 30. This claim also imposes a substantive, affirmative requirement on lenders to complete the satisfaction of a mortgage within a specific time frame, a requirement that, when applied to federal savings associations, directly impacts their lending activities, particularly with respect to the processing and servicing of mortgages, thereby making preemption warranted pursuant to 12 C.F.R. 560.2(b)(10).

noting that the court had previously dismissed NYRPAPL SS 1921 claim as preempted under HOLA

See Cassese, 255 F.R.D. at 94 (noting that the court had previously dismissed NYRPAPL § 1921 claim as preempted under HOLA); accord Cassese MTD Opinion at 30-31; see also Molosky v. Wash. Mut. Bank, No. 07-CV-11247, 2008 WL 183634, at *4 (E.D.Mich. Jan. 18, 2008) (finding M.C.L. 565.41 claim, which requires mortgagees to file discharge of mortgage within statutory time period preempted under HOLA and its implementing regulations).


Context: The Buie "standard would require the officers to have articulable facts, not a mere hunch, that would warrant a reasonable belief that the rooms they intended to search harbored a dangerous individual posing a threat to those on the arrest scene."

"If the arrest occurs outside the residence, a protective sweep would only be legal if the officers have articulable facts which, taken with the logical implications therefrom, would lead a reasonably prudent officer to believe the area to be searched harbors a person or persons that posed danger to those on the arrest scene."

Vasquez v. State, 870 So.2d 26, 31 (Fla. 2d DCA 2003); State v. Hedley, 593 A.2d 576, 581 (Del.Sup.Ct.1990) (“If the arrest occurs outside the residence, a protective sweep would only be legal if the officers have articulable facts which, taken with the logical implications therefrom, would lead a reasonably prudent officer to believe the area to be searched harbors a person or persons that posed danger to those on the arrest scene.”); see Newton v. State, 378 So.2d 297, 298 (Fla. 4th DCA 1979) (“such a protective measure is only allowable when the officers have some reasonable grounds to suspect additional persons may be present. It cannot be justified routinely.”); see also United States v. Colbert, 76 F.3d 773, 778 (6th Cir.1996) (“Lack of information cannot provide an articulable basis upon which to justify a protective sweep”).

"such a protective measure is only allowable when the officers have some reasonable grounds to suspect additional persons may be present. It cannot be justified routinely."


"Lack of information cannot provide an articulable basis upon which to justify a protective sweep"


Context: However, in the context of alleged procedural violations of the ESA, the public interest and the balance of hardships weighs heavily in favor of a preliminary injunction due the emphasis placed by Congress on the protection of endangered and threatened, species.

"Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities .... "

Cottonwood, 789 F.3d at 1091 (“[Wjhen evaluating a request for injunctive relief to remedy an ESA procedural violation, the equities and public interest factors always tip in favor of the protected species.”); see also Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (“Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities .... ”).

"[Wjhen evaluating a request for injunctive relief to remedy an ESA procedural violation, the equities and public interest factors always tip in favor of the protected species."


Context: For example, care and treatment are the focus of the Ervin Act; similarly "the overriding goal of the District's Juvenile Act [is] to promote the care and rehabilitation of the juvenile." Furthermore, like the Ervin Act, the Juvenile Act does not explicitly authorize the Family Division of Superior Court to order DHS to place juveniles in facilities outside the District of Columbia; rather, it allows the court to order "[commitment of the child for medical, psychiatric, or other treatment at an appropriate facility on an in-patient basis if ... the Division finds that confinement is necessary to the treatment of the child."

"The [Superior Court] has broad discretion to order the treatment it deems to be in the child's best interest."

D.C.Code § 16-2320(a)(4); see id. at - 2320(c)(1). We have held that these provisions enable the Family Division to order DHS to place a juvenile delinquent in a specific program outside the District of Columbia. See A.A.I., 483 A.2d at 1209 (upholding trial court’s placement of juvenile in private residential facility in Annapolis, Maryland); In re J.A.G., 443 A.2d 13, 15 (D.C.1982); id. at 23-24 (Ferren, J., concurring); see also In re C.W.M., 407 A.2d 617, 624 n. 16 (D.C.1979) (“The [Superior Court] has broad discretion to order the treatment it deems to be in the child’s best interest.”).

upholding trial court's placement of juvenile in private residential facility in Annapolis, Maryland


Context: In deciding whether the trial court's erroneous decision to shackle violated due process, a federal habeas court should "determine whether what [the jurors] saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial." Visible shackling during trial is so likely to cause a defendant prejudice that it is permitted only when justified by an essential state interest specific to each trial.

See, e.g., Williams v. Woodford, 384 F.3d 567, 593 (9th Cir.2004) (juror’s viewing of defendant in handcuffs with a coat draped over his handcuffed hands as he went to or from the courtroom was not inherently or presumptively prejudicial); Ghent v. Woodford, 279 F.3d 1121, 1133 (9th Cir.2002) (no prejudice from jury’s brief glance of shackles outside of courtroom while petitioner was being transported); Rich v. Calderon, 170 F.3d 1236, 1240 (9th Cir.1999) (no constitutional error where defendant was only shackled with ankle chains during trial and shackles were behind curtain or skirt placed around the defense table to insure that they were not visible to the jury), amended, 187 F.3d 1064, 1069 (9th Cir.1999); see also Packer, 291 F.3d at 583 (holding that defendant who was improperly placed in a leg brace for security reasons suffered no prejudice where no jurors interviewed after trial recalled seeing the brace).

juror's viewing of defendant in handcuffs with a coat draped over his handcuffed hands as he went to or from the courtroom was not inherently or presumptively prejudicial


no prejudice from jury's brief glance of shackles outside of courtroom while petitioner was being transported


no constitutional error where defendant was only shackled with ankle chains during trial and shackles were behind curtain or skirt placed around the defense table to insure that they were not visible to the jury


Context: Ciripompa essentially argues that if judicial review occurs more than forty-five days after the first hearing date, which it virtually always will, the court is powerless to remand the matter if it finds a ground to vacate the award. This interpretation completely undermines the purpose of affording judicial review of arbitration awards in teacher-tenure cases, and is contrary to authority granting the court the discretion to remand for an arbitration hearing before a different arbitrator.

See In re City of Camden, 429 N.J.Super. 309, 337-38, 58 A.3d 1186 (App.Div.), certif. denied, 215 N.J. 485, 73 A.3d 511 (2013) (permitting a remand to a different arbitrator “when deficiencies in the arbitrator’s process call into question the arbitrator’s ability to have an open mind regarding the disposition”); see also Fox v. Morris Cnty. Policemen’s Ass’n, P.B.A. 151, 266 N.J.Super. 501, 520-21, 630 A.2d 318 (App.Div.1993), certif. denied, 137 N.J. 311, 645 A.2d 140 (1994) (holding that upon vacating an arbitration award, the court has the discretion to remand to the same arbitrator or different arbitrator); Manchester Twp. Bd. of Educ., supra, 199 N.J.Super. at 281, 489 A.2d 682 (same).

permitting a remand to a different arbitrator "when deficiencies in the arbitrator's process call into question the arbitrator's ability to have an open mind regarding the disposition"


Context: It is now clear that the Mothers properly represented their children because no conflicting interests were implicated.

holding that the minor was "otherwise represented [because] the child's legal guardian, his mother, brought th[e] action on his behalf"

See Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir.2001) ("[U]nless a conflict of interest exists between the representative and minor, a district court need not even consider the question whether a guardian ad litem should be appointed.”); Gonzalez-Gonzalez-Jimenez de Ruiz v. United States, 231 F.Supp.2d 1187, 1196 (M.D.Fla.2002) aff'd sub nom. Gonzalez-Jiminez De Ruiz v. United States, 378 F.3d 1229 (11th Cir.2004) (noting that "[tjypically, the next friend who sues on behalf of the minor is that minor’s parent” and finding that the mother of the minor plaintiffs, as a party to the suit, was not required to bring the action as a "next friend”); see also Croce v. Bromley Corp., 623 F.2d 1084, 1093 (5th Cir.1980) (holding that the minor was "otherwise represented [because] the child's legal guardian, his mother, brought th[e] action on his behalf”).

"[U]nless a conflict of interest exists between the representative and minor, a district court need not even consider the question whether a guardian ad litem should be appointed."


noting that "[tjypically, the next friend who sues on behalf of the minor is that minor's parent" and finding that the mother of the minor plaintiffs, as a party to the suit, was not required to bring the action as a "next friend"


Context: IV. Intrusions into the sanctity of the home have long been viewed as at the very core of the rights protected by the Fourth Amendment.

"[T]he Court since the enactment of the Fourth Amendment has stressed 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.' "

Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (“[T]he Court since the enactment of the Fourth Amendment has stressed ‘the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.’ ”) (quoting Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”); see Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (noting that proceeding by search warrant is a drastic intrusion that “must be carefully circumscribed so as to prevent unauthorized invasions of ‘the sanctity of a man’s home and the privacies of life.’ ”) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).

noting that proceeding by search warrant is a drastic intrusion that "must be carefully circumscribed so as to prevent unauthorized invasions of 'the sanctity of a man's home and the privacies of life.' "


"At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."


Context: . The court's dismissal of one count in the five count complaint and denial of defendant's summary judgment motion does not make plaintiff a prevailing party.

"[pjrevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case"

Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) (obtaining “interlocutory ruling that his complaint should not have been dismissed’’ under Rule 12(b)(6) "is not the stuff of which legal victories are made''); see Sole v. Wyner, 551 U.S. 74, 83, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007) ("[pjrevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case”).

obtaining "interlocutory ruling that his complaint should not have been dismissed'' under Rule 12(b)(6) "is not the stuff of which legal victories are made''


Context: Nothing in the record contradicts the trial court's statement that ValueOptions failed to inquire any further into the status of the entry of judgment before its time to appeal expired. The trial judge, as any judge should be, was permitted, indeed required, to draw on his knowledge and experience when determining whether ValueOptions' conduct had been reasonable under the circumstances.

in determining reasonable attorney fees, "trial judge can draw upon his knowledge of the case and upon his own experience"

See Walker v. Kendig, 107 Ariz. 510, 513, 489 P.2d 849, 852 (1971) (when making discretionary determination, trial court may rely on “ ‘personal wisdom and experience’”), quoting In re Welisch, 18 Ariz. 517, 521, 163 P. 264, 265-66 (1917); cf. Baum v. Baum, 120 Ariz. 140, 146, 584 P.2d 604, 610 (App.1978) (in determining reasonable attorney fees, “trial judge can draw upon his knowledge of the case and upon his own experience”).

when making discretionary determination, trial court may rely on " 'personal wisdom and experience'"


Context: The Fifth Circuit and two Bankruptcy Appellate Panels have decided the burden of proof issue the same way as the Seventh Circuit.

Because the debtor is the party claiming the exception to the non-dischargeability of the property settlement debt, it is the debtor who has the burden of "coming forward with evidence to establish the viability of either test."

See In re Jodoin, 209 B.R. 132, 141 (9th Cir. BAP 1997)(Because the debtor is the party claiming the exception to the non-dischargeability of the property settlement debt, it is the debtor who has the burden of “coming forward with evidence to establish the viability of either test.”); In re Moeder, 220 B.R. 52, 56 (8th Cir. BAP 1998)(concluding that sub-parts (A) and (B) were exceptions that “constitute affirmative defenses to non-dis-chargeability which must be proven by the debtor to escape non-dischargeability of the disputed debt”).

In re Gamble, 143 F.3d 223, 226 (5th Cir.1998) (the burden of proof rests with the Debtor to show that one of the exceptions applies.)


concluding that sub-parts (A) and (B) were exceptions that "constitute affirmative defenses to non-dis-chargeability which must be proven by the debtor to escape non-dischargeability of the disputed debt"


Context: Even though neither federal nor state law gave Defendant Desrosiers authority as a postal inspector to arrest Plaintiff for a state law crime, the arrest was nevertheless valid if Defendant Desrosiers had the authority to participate in his capacity as a private citizen.

observing that secret service agent could make state law arrest in any situation where state law authorized a "private person" to do so

See Unverzagt, 424 F.2d at 398 (considering whether a warrantless arrest by a postal inspector, not authorized under federal law, was nevertheless valid as a citizen’s arrest); Alexander v. United States, 390 F.2d 101, 105-07 (5th Cir.1968) (same); see also Johnson, 815 F.2d at 313 (observing that secret service agent could make state law arrest in any situation where state law authorized a “private person” to do so). Defendant Desrosiers participated in the arrest at two significant junctures.

considering whether a warrantless arrest by a postal inspector, not authorized under federal law, was nevertheless valid as a citizen's arrest


Context: As the Commissioner points out, there is no requirement that the Appeals Council "articulate its own assessment of the additional evidence" in its decision to deny review. In this case, the Appeals Council could have justifiably refused to consider Dr. Ebert's 2002 opinion because, as pointed out above, it was wholly contradictory with his earlier treatment notes and the objective medical evidence.

noting that "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence."

See Craig v. Chater, 76 F.3d 585, 590 (4th Cir.1996) ("By negative implication, if a. physician’s opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight.”); see also Hunter, 993 F.2d 31, 35 (4th Cir.1992) (noting that "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence.”).

"By negative implication, if a. physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight."


Context: Because the resentencing is de novo, we have held that both parties may present new evidence bearing on the sentence.

rejecting appellant's argument that the state was not permitted to present new evidence at his resentencing and stating that "[o]ur remand directed a new sentencing proceeding, not just a reweighing" at which "both sides may, if they choose, present additional evidence"

See Mann v. State, 453 So.2d 784, 786 (Fla.1984) (rejecting appellant’s argument that the state was not permitted to present new evidence at his resentencing and stating that “[o]ur remand directed a new sentencing proceeding, not just a reweighing” at which “both sides may, if they choose, present additional evidence”); see also Rich v. State, 814 So.2d 1207, 1208 (Fla. 4th DCA 2002) (holding that at resentenc-ing, the State must present evidence on an enhanced sentencing factor despite having done so at the prior sentencing hearing).


Context: Here, plaintiffs provide almost no detail that might lead a reasonable trier of fact to an alternate explanation of the complaints against them, nor do they provide any evidence of their own job qualifications beyond their own eonclusory allegations. "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment."

basing grant of summary judgment for defendant in Title VII case, in part, on plaintiffs reliance on con-clusory allegations to rebut defendants' specific evidence

See also Ricks, 92 F.Supp.2d at 346-47 (basing grant of summary judgment for defendant in Title VII case, in part, on plaintiffs reliance on con-clusory allegations to rebut defendants’ specific evidence).

restating principle that to defeat summary judgment, plaintiffs', "affidavits must be based upon concrete particulars, not eonclusory allegations"

Bickerstaff, 196 F.3d at 451-52 (restating principle that to defeat summary judgment, plaintiffs’, “affidavits must be based upon concrete particulars, not eonclusory allegations”) (citing, inter alia, BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996)).


Context: Having thoroughly reviewed the record, we agree with the district court that the government's affidavits in support of the initial wiretap and the two extensions persuasively demonstrated that the wiretaps were necessary to achieve the objectives of the Task Force investigation.

upholding necessity determination where traditional techniques "had failed to reveal the source of the drugs[ ][or] the extent of the drug conspiracy"

See United States v. Newman, 733 F.2d 1395, 1399 (10th Cir.1984) (upholding necessity determination where traditional techniques “had failed to reveal the source of the drugs[ ][or] the extent of the drug conspiracy”); United States v. Johnson, 645 F.2d 865, 867 (10th Cir.1981) (upholding necessity determination where the government was “properly concerned ... with identifying all of the members of the conspiracy, as well as the precise nature and scope of the illegal activity”); see also United States v. McLee, 436 F.3d 751, 763 (7th Cir.2006) (“The government’s demonstrated need for a wiretap as a means of identifying all coconspirators and the roles they occupied in the structure of the conspiracy is sufficient for a finding of ‘neces sity’ under the statute.”).

"The government's demonstrated need for a wiretap as a means of identifying all coconspirators and the roles they occupied in the structure of the conspiracy is sufficient for a finding of 'neces sity' under the statute."


upholding necessity determination where the government was "properly concerned ... with identifying all of the members of the conspiracy, as well as the precise nature and scope of the illegal activity"


Context: Marvell argues that this Court should follow the holding in Mirror Worlds that "because [defendant's] sales or offers for sale do not infringe the asserted method patents, they cannot be the basis for damages." (Docket No. 357 at 5). The Court does not read Mirror Worlds as Marvell would have it for several reasons, both legal and factual in nature. First, such a restrictive reading is contradictory to Federal Circuit precedent, which does not require a reasonable royalty to be tied only to use of the patented method (i.e., infringement).

upholding reasonable royalty based on availability of the method, rather than "actual use of the" invention

See, e.g., Lucent, 580 F.3d at 1334 (“A company licensing a patented method often has strong reasons not to tie the royalty amount strictly to usage.”); cf. Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d 1075, 1080-81 (Fed.Cir.1983) (upholding reasonable royalty based on availability of the method, rather than “actual use of the” invention).

"A company licensing a patented method often has strong reasons not to tie the royalty amount strictly to usage."


Context: The government's immunity in this case rests on the protected discretion of the Comptroller even though Irwin complains of tortious conduct by the Comptroller's subordinates. Examiner Chopel's acts were only one phase of the agency's examination and review process that culminated in the protected decision.

See Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953) (acts of subordinates in carrying out government operation according to official directions not actionable).

allegations of "numerous 'mistakes, errors, and omissions in the course of examining' the bank and its holding company ... fall facially within the exception"

See also Emch v. United States, 630 F.2d 523, 528 (7th Cir.1980) (allegations of “numerous ‘mistakes, errors, and omissions in the course of examining’ the bank and its holding company ... fall facially within the exception”), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981).


Context: . Pursuant to a 2005 amendment, the statute now lists 28 U.S.C. SS 158(d) as 28 U.S.C. SS 158(d)(1). However, this case was filed in 2001, prior to the effective date of the 2005 amendment, so as relevant, references to the Bankruptcy Code throughout this opinion refer to the previous version of the Code.

discussing the applicability of the pre-2005 statute in the present set of cases pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, SS 1501, 119 Stat. 23 (2005

See In re Am. Capital Equip., LLC, 296 Fed.Appx. 270, 276 n. 5 (3d Cir.2008) (discussing the applicability of the pre-2005 statute in the present set of cases pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 1501, 119 Stat. 23 (2005)); see also In re Krebs, 527 F.3d 82, 84 (3d Cir.2008) (Bankruptcy Code's 2005 amendment not applicable to Chapter 11 case filed prior to amendment's effective date).


Context: The only apparent foible (and one not raised by Zimmerman here) is that SS 265.03(3) only criminalizes "unlicensed" firearm possession. However, given Officer Greco's law enforcement experience and that: (1) the gunshot occurred in a "high-crime neighborhood"; (2) in a public parking lot; (3) defendant denied even hearing a gunshot; (4) defendant failed to initially inform her about the weapon or show his license to carry same, this was sufficient information to enable a reasonably cautious person to believe the felony at issue -- the unlawful possession of a loaded firearm -- was being committed.

noting that probable cause deals with "probabilities," not "hard certainties"

See Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (noting that probable cause deals with “probabilities,” not “hard certainties”); see also United States v. Delossantos, 536 F.3d 155, 161 (2d Cir.2008) (noting that, despite possible innocent explanations, a court “must evaluate the facts in light of the training and experience of the arresting agents”).

noting that, despite possible innocent explanations, a court "must evaluate the facts in light of the training and experience of the arresting agents"


Context: The error here, if any, was not clear and obvious. One year prior to Sanders's trial, we noted there was a circuit split over whether a defendant violates SS 1512 when he attempts to persuade others to invoke their Fifth Amendment right to remain silent.

"[T]here is a difference in approach among the circuits about whether merely attempting to persuade a witness to withhold cooperation or not to disclose information to law en forcement officials -- as opposed to actively lying -- falls within the ambit of SS 1512(b

United States v. Khatami, 280 F.3d 907, 913 (9th Cir.2002) (“[T]here is a difference in approach among the circuits about whether merely attempting to persuade a witness to withhold cooperation or not to disclose information to law en forcement officials — as opposed to actively lying — falls within the ambit of § 1512(b).”). We declined to rale on the issue, leaving the question open in this circuit.

noting that to be clear and obvious an error must be "so clear-cut, so obvious,[that] a competent district judge should be able to avoid it without benefit of objection"

See United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (noting that to be clear and obvious an error must be “so clear-cut, so obvious,[that] a competent district judge should be able to avoid it without benefit of objection”).