Context: Our determination the statute is ambiguous is further supported by viewing the language in its context as part of the overall statutory scheme.

"Statutory language 'cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.'"

See also Sturgeon v. Frost, — U.S.-,-, 136 S.Ct. 1061, 1070, 194 L.Ed.2d 108 (2016) (“Statutory language ‘cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’”).

See, e.g., 1 Pa.C.S. § 1921(a) (sec tions of statute should be read together and construed to give effect to all provisions); Roethlein, 81 A.3d at 822 (statutory words not to be interpreted in isolation but read with reference to context in which they appear); Mishoe, 824 A.2d at 1155 (same).


Context: Keeping in mind that notice by regular mail, with the deemed delivery provision, serves the dual function of protecting those minors whose parents cannot be located and providing actual notice to a parent when a physician chooses this method of notification, we believe that the legislature appropriately stipulated a constructive delivery time that approximated -- or that, in all probability, was less than -- delivery time by regular mail. Thus, the constructive delivery provision, in conjunction with the waiting period, survives constitutional scrutiny.

upholding Ohio statute that permits a physician, who after a "reasonable effort" has been unable to notify a minor's parent in person or by telephone, to perform an abortion after forty-eight hours constructive notice by both ordinary and certified mail

See Hodgson, — U.S. at -, 110 S.Ct. at 2926 (upholding Minnesota notice statute with an effective waiting period of seventy-two hours: a one day “deemed delivery” constructive notice period followed by a forty-eight hour waiting period); see also Akron II, — U.S. at -, 110 S.Ct. at 2972 (upholding Ohio statute that permits a physician, who after a “reasonable effort” has been unable to notify a minor’s parent in person or by telephone, to perform an abortion after forty-eight hours constructive notice by both ordinary and certified mail).

upholding Minnesota notice statute with an effective waiting period of seventy-two hours: a one day "deemed delivery" constructive notice period followed by a forty-eight hour waiting period


Context: Several other cases have followed the Vaughn court's conclusion that the concept of abandonment is different under the Fourth Amendment than under property law.

See, e.g., Spriggs v. United States, 618 A.2d 701 (D.C.1992) (appellant stooping down and placing metal key case containing cocaine next to fence post and walking away has no Fourth Amendment protection against police recovering object even when the object itself is not evidence of a crime); Anderson v. State, 133 Ga.App. 45, 209 S.E.2d 665 (1974) (defendant who hides marijuana under a rock seventy-five feet from his fishing equipment is afforded no protection against search and seizure of the marijuana).

See also United States v. Wider, 951 F.2d 1283 (D.C.Cir.1991) (defendant who placed brown paper bag on steps and walked away from the bag had no reasonable expectation of privacy); United States v. Thomas, 864 F.2d 843 (D.C.Cir.1989) (defendant who left gym bag on the floor of a public hallway in an apartment building and walked down some stairs surrendered his expectation of privacy); United States v. Hershenow, 680 F.2d 847 (1st Cir.1982) (no reasonable expectation of privacy when defendant left a sealed box of incriminating records in a barn in which the defendant had no legal interest or right of access); United States v. Alewelt, 532 F.2d 1165 (7th Cir.) (defendant relinquished his expectation of privacy when he placed jacket on coat rack in general working area of state office building), cert, denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976).


defendant who left gym bag on the floor of a public hallway in an apartment building and walked down some stairs surrendered his expectation of privacy


no reasonable expectation of privacy when defendant left a sealed box of incriminating records in a barn in which the defendant had no legal interest or right of access


defendant relinquished his expectation of privacy when he placed jacket on coat rack in general working area of state office building


defendant who hides marijuana under a rock seventy-five feet from his fishing equipment is afforded no protection against search and seizure of the marijuana


Context: Although B.H.M. styled his pleadings as an original petition, and we have determined he has standing to file an original petition pursuant to section 102.003(a)(9), which governs standing in original suits, this does not determine the nature of the suit.

describing action to modify custody order after managing conservator's death as suit to modify

See, e.g., In re C.A.M.M., 243 S.W.3d at 217 (describing action to modify custody order after managing conservator’s death as suit to modify); P.D.M., 117 S.W.3d at 456 (holding provisions of Chapter 156 of Texas Family Code governing modifications clearly apply to suits that attempt to effect change in custody after entry of initial custody order); see also State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (holding that courts look to substance of plea for relief to determine nature of pleading, not merely title of pleading). First, it is undisputed there was a prior custody determination under the 2002 divorce decree.


holding provisions of Chapter 156 of Texas Family Code governing modifications clearly apply to suits that attempt to effect change in custody after entry of initial custody order


Context: P41 But nothing in Crawford suggests that the Supreme Court intended to change its prior decisions allowing the admission of hearsay at pretrial proceedings, such as a suppression hearing.

no confrontation clause violation where defendant was denied the chance to discover an informant's name at pretrial hearing

See McCray v. Illinois, 386 U.S. 300, 311-13, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967) (no confrontation clause violation where defendant was denied the chance to discover an informant’s name at pretrial hearing); see also Pennsylvania v. Ritchie, 480 U.S. 39, 52, 54 n.10, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987) (plurality opinion) (Noting that to accept a broader interpretation would transform the confrontation clause into a constitutionally compelled rule of discovery and further recognizing the Court “normally has refused to find a Sixth Amendment violation when the asserted interference with cross-examination did not occur at trial.”); California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (“it is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause”); Barber v. Page, 390 U.S. 719, 725, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968) (“The right to confrontation is basically a trial right.”).

"it is this literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause"


Context: . Barton contends that other courts have held a constructive eviction occurs when a lessor wrongfully serves a notice to quit upon a tenant who thereafter vacates.

holding that "[wjhen a wrongful demand or notice to quit or vacate leased premises is made by a lessor, or landlord, and is followed by immediate surrender of possession by the lessee, or tenant, a constructive eviction has been accomplished"

See Dobbins v. Paul, 71 N.C.App. 113, 321 S.E.2d 537, 540 (1984) (holding that "[wjhen a wrongful demand or notice to quit or vacate leased premises is made by a lessor, or landlord, and is followed by immediate surrender of possession by the lessee, or tenant, a constructive eviction has been accomplished”); see also Ruotal Corp., N.W., Inc. v. Ottati, 391 So.2d 308, 309 (Fla.Dist.Ct.App.1980) (finding a jury could reasonably infer that lessee’s compliance with notice was coerced and that triable issue existed regarding whether lessor had rental and security deposit available to it to cover past due rents).

finding a jury could reasonably infer that lessee's compliance with notice was coerced and that triable issue existed regarding whether lessor had rental and security deposit available to it to cover past due rents


Context: In analyzing the Cort factors we will focus on the second factor ("whether Congress intended to provide the plaintiff with a private right of action") as "the key inquiry in this calculus."

"The starting point in discerning congressional intent is the existing statutory text...."

Alexander, 532 U.S. at 288, 121 S.Ct. 1511; see also Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (“The starting point in discerning congressional intent is the existing statutory text....”).

"Indeed, the three Cort questions that are not explicitly focused on legislative intent are actually indicia of legislative intent, such that the Cort test itself is focused entirely on intent."

Opera Plaza, 376 F.3d at 835. See also Orkin v. Taylor, 487 F.3d 734, 739 (9th Cir.2007) (“Indeed, the three Cort questions that are not explicitly focused on legislative intent are actually indicia of legislative intent, such that the Cort test itself is focused entirely on intent.”). Here, congressional intent weighs decisively against finding a private right of action. “We ... begin ... our search for Congress’s intent with the text and structure of [the statute].”


Context: "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review."

But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).

district court's decision to review a magistrate's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"

See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (district court’s decision to review a magistrate’s recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Property, 73 F.3d at 1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the magistrate’s order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by then-failure to file objections, plaintiffs waived their right to appeal the magistrate’s ruling).


a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review


by failing to object to certain portions of the magistrate's order, cross-claimant had waived its right to appeal those portions of the ruling


by then-failure to file objections, plaintiffs waived their right to appeal the magistrate's ruling


Context: . The issue of whether a defendant's pre-Miranda silence may be used as substantive evidence of guilt in the prosecution's case-in-chief has divided the circuits. The majority hold that such use is not constitutionally permissible.

See, e.g., United States v. Elkins, 774 F.2d 530, 538 (1st Cir.1985) (testimony regarding defendant's apparent lack of surprise when arrested and given Miranda warnings violated due process); Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.2000) ("use of a defendant's prearrest silence as substantive evidence of guilt violates the Fifth Amendment”); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir.1987) (same); United States v. Velarde-Gomez, 269 F.3d 1023, 1033 (9th Cir.2001) (en banc) (district court erred in allowing government to comment on defendant’s post-arrest, pre-Miranda silence); United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir.1991) (admission into evidence of defendant’s pre-arrest, pre-Miranda refusal to answer questions constituted plain error); United States v. Moore, 104 F.3d 377, 385 (D.C.Cir.1997) ("custody and not interrogation is the triggering mechanism for the right of pretrial silence under Miranda ”; government's comment on post-arrest, pre-Miranda silence was error); see also United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981) (noting in dicta "we have found no decision permitting the use of silence, even the silence of a suspect who has been given no Miranda warnings and is entitled to none, as part of the Government’s direct case”).

noting in dicta "we have found no decision permitting the use of silence, even the silence of a suspect who has been given no Miranda warnings and is entitled to none, as part of the Government's direct case"


comment on defendant's post-arrest, pre-Miranda silence permissible as substantive government evidence where defendant was under no official compulsion to speak

But cf. United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985) (testimony of defendants' pre-arrest, pre-Miranda silence properly admitted; no fundamental unfairness in admitting evidence of non-Miranda-induced silence); United States v. Frazier, 408 F.3d 1102, 1111 (8th Cir.2005) (comment on defendant’s post-arrest, pre-Miranda silence permissible as substantive government evidence where defendant was under no official compulsion to speak); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991) (dicta that government may reference defendant's post-arrest, pre-Miranda silence without raising constitutional questions).


dicta that government may reference defendant's post-arrest, pre-Miranda silence without raising constitutional questions


"use of a defendant's prearrest silence as substantive evidence of guilt violates the Fifth Amendment"


district court erred in allowing government to comment on defendant's post-arrest, pre-Miranda silence


admission into evidence of defendant's pre-arrest, pre-Miranda refusal to answer questions constituted plain error


Context: Dist. Ct. Op. at 27; JA 134. The "ignored her client's wishes" reference, however, is an oblique one because it comes at the end of a paragraph that discusses only specific instances in which trial counsel failed to adhere to Coddington's wishes and because it never says Coddington specifically instructed his appellate counsel (Pilette) to appeal the issue. That trial counsel allegedly failed to follow Coddington's wishes merely confirms that Coddington had a strong issue to appeal. In the absence of a directive from Coddington to Pilette to appeal his plea, however, we are left with a situation in which Coddington conveyed at most an ambiguous interest in altering his sentence but not "express instructions" regarding the appeal.

"If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal."

See Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (“If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.”) (emphasis added); see also Regalado v. United States, 334 F.3d 520, 525-26 (6th Cir.2003) (attorney’s performance not deficient when client expressed a desire to appeal, but did not expressly instruct her attorney to do so).

attorney's performance not deficient when client expressed a desire to appeal, but did not expressly instruct her attorney to do so


Context: As such, claim 10 is inconsistent with claim 1 and, indeed, contradicts claim 1. A dependent claim that contradicts, rather than harrows, the claim from which it depends is invalid. See 35 U.S.C. SS 112(d) (requiring that "a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed" (emphasis added)); Pfizer, Inc. v. Ranbaxy Labs.

Ltd., 457 F.3d 1284, 1291-92 (Fed. Cir. 2006) (holding a claim invalid under pre-AIA 35 U.S.C. § 112 ¶ 4 for claiming subject matter that was “non-overlapping” with the claim from which it depended); Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir. 2006) (noting that a dependent claim can be invalid for failing to comply with pre-AIA 35 U.S.C. § 112 ¶ 4); see also Trs. of Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1366-67 (Fed. Cir. 2016) (holding that claims that were internally contradictory were invalid as indefinite); Allen Eng’g Corp. v. Bartell Indus., 299 F.3d 1336, 1349 (Fed. Cir. 2002) (holding that claims that contradicted the specification were invalid as indefinite). “[Wjhere ... claims are susceptible to only one reasonable interpretation and that interpretation results in a nonsensical construction of the claim as a whole, the claim must be invalidated.... ” Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999).

holding a claim invalid under pre-AIA 35 U.S.C. SS 112 P 4 for claiming subject matter that was "non-overlapping" with the claim from which it depended


holding that claims that contradicted the specification were invalid as indefinite


noting that a dependent claim can be invalid for failing to comply with pre-AIA 35 U.S.C. SS 112 P 4


Context: In the absence of a reasonable expectation of privacy, law enforcement officials are free to conduct a warrantless search notwithstanding whether the search is also justified by exigent circumstances or some other exception to the warrant requirement of the Fourth Amendment. Prisoners have little, if any, reasonable expectation of privacy while incarcerated.

People v. Salaz, 953 P.2d 1275 (Colo.1998); see United States v. Peoples, 71 F.Supp.2d 967 (W.D.Mo.1999)(curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security); see also People v. Blehm, 44 Colo.App. 472, 623 P.2d 411 (1980)(defendant had no justifiable expectation that her conversations in jail with her husband were private).


Context: . The Supreme Court's decisions and our own invoke the entry fiction in cases related to the determination of an alien's immigration status, and the procedural due process to which an alien is entitled by virtue of that status, not cases adjudicating alleged violations of an alien's substantive due process rights during detention.

concluding that temporary parole in United States while alien's admissibility was being determined did not entitle alien to benefit of statute giving Attorney General authority to withhold deportation of any alien "within the United States" if alien would thereby be subjected to physical persecution

See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (concluding that temporary parole in United States while alien's admissibility was being determined did not entitle alien to benefit of statute giving Attorney General authority to withhold deportation of any alien "within the United States” if alien would thereby be subjected to physical persecution); Menon v. Esperdy, 413 F.2d 644, 647 (2d Cir.1969) (noting that “since a parole does not constitute an admission into the United States ... th[e] appeal involve[d] an exclusion ... rather than an expulsion”); Dong Wing Ott v. Shaughnessy, 247 F.2d 769, 770 (2d Cir.1957) (per curiam) (holding that the Attorney General’s "discretionary power to suspend deportation” did not apply to aliens "within the country on parole,” because parole, "by statute[, was] not [to] be regarded as an admission of the alien” (citation and internal quotation marks omitted)), cert. denied, 357 U.S. 925, 78 S.Ct. 1368, 2 L.Ed.2d 1370 (1958); Knauff v. Shaughnessy, 179 F.2d 628, 630 (2d Cir.1950) (per curiam) (alien stopped at the border and detained on Ellis Island "is not ‘in the United States’ ... [and therefore] is not entitled to naturalization”); see also Martinez-Aguero v. Gonzalez, 459 F.3d 618, 623 (5th Cir.) (rejecting appli cation of the entry fiction to Bivens claims involving the use of excessive force), cert. denied, - U.S. -, 127 S.Ct. 837, 166 L.Ed.2d 667 (2006); Kwai Fun Wong v. United States, 373 F.3d 952, 973 (9th Cir.2004) ("The entry fiction is best seen ... as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away.” (emphasis in original)).


"The entry fiction is best seen ... as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away." (emphasis in original


noting that "since a parole does not constitute an admission into the United States ... th[e] appeal involve[d] an exclusion ... rather than an expulsion"


alien stopped at the border and detained on Ellis Island "is not 'in the United States' ... [and therefore] is not entitled to naturalization"


Context: The wrongful discharge statute states quite clearly that it is remedial. The very title conveys this fact: "Indemnity for Discharge Without Just Cause". The Puerto Rico Supreme Court has also confirmed this fact.

Beauchamp v. Holsum Bakers of P.R., 116 D.P.R. 522 (1985) (holding that section 185a of Title 29 is remedial in nature). Because the wrongful termination statute is meant to make the plaintiff whole, and the compensatory damages granted under the state anti-discrimination statute have already accomplished this goal, we must strike the $20,000 granted for unjust termination.

"a plaintiff is entitled to only one full recovery, no matter how many legal grounds may support the verdict"

See Freeman v. Package Machinery Co., 865 F.2d 1331, 1345 (1st Cir.1988) (“a plaintiff is entitled to only one full recovery, no matter how many legal grounds may support the verdict”).


Context: These waiver principles apply to unpreserved constitutional claims for good reason. The narrow Golding exception to the general rule that a reviewing court will not consider a claim not previously raised at trial is justified by the overriding importance of protecting the fundamental constitutional rights of the accused.

predecessor to Golding identified " 'exceptional circumstance' " that arises when "the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial"

See State v. Golding, supra, 213 Conn. 238-39 (explaining “exceptional” circumstance presented by unpreserved claim of constitutional violation if record sufficient for review); see also State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973) (predecessor to Golding identified “ ‘exceptional circumstance’ ” that arises when “the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial”).

explaining "exceptional" circumstance presented by unpreserved claim of constitutional violation if record sufficient for review


Context: We therefore endeavor to set forth the procedures to be used in reviewing a claim concerning the crime-fraud exception and the type of evidence permissible for a threshold factual showing in future cases. The proponent of the exception may, in appropriate circumstances, request an in camera review of the privileged information to allow the court to make a determination regarding the applicability of the exception.

Id., 570-71; see also In re John Doe, Inc., supra, 13 F.3d 636 (where concerns for secrecy are weak, in camera proceeding may not be justified). We have permitted an in camera review in other contexts and conclude that, in certain circum stances, it may be an appropriate means of examining the allegedly privileged material without abrogating the privilege itself.

See United States v. Zolin, supra, 491 U.S. 568-69 (concluding that neither Federal Rules of Evidence nor federal common law prohibits party opposing privilege on crime-fraud grounds from relying on in camera review of communications). We recognize that encouraging an in camera review in all cases is ill-advised due to the fact that “[t]oo much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect . . . .” (Internal quotation marks omitted.)


Context: Attorney fees are awarded when the defendant commits "truly egregious, purposeful infringement, or other purposeful wrongdoing."

Badger Meter, Inc., 13 F.3d at 1159 (no attorney fees when “the question of functionality was close enough to remove the case from the ambit of an ‘exceptional case’ ”) (quoting Service Ideas, Inc. v. Traex Corp., 846 F.2d 1118, 1125 (7th Cir.1988)); see also, Roulo, 886 F.2d 931 (no attorney fees when defendant made a conscious effort to create elements of dissimilarity between products); Cf. Otis Clapp & Son, Inc., 754 F.2d at 746 (the defendant’s ‘targeting’ of the plaintiff in its literature created exceptional case for attorney fees); Gorenstein Enterprises, Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 435, 437 (7th Cir.1989) (upholding attorney fee award when the defendants were “holding the trademark hostage as a bargaining tactic” and litigated the suit in bad faith).

no attorney fees when "the question of functionality was close enough to remove the case from the ambit of an 'exceptional case' "


the defendant's 'targeting' of the plaintiff in its literature created exceptional case for attorney fees


upholding attorney fee award when the defendants were "holding the trademark hostage as a bargaining tactic" and litigated the suit in bad faith


Context: While Jiang argues that the evidence he submitted demonstrates that he will be subject to China's family planning policy for having two children, the BIA reasonably gave little or no evidentiary weight to Jiang's documents in light of the adverse credibility determination that was made in his underlying proceedings.

See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-48 (2d Cir.2007) (holding that the BIA did not abuse its discretion in denying a motion to reopen supported by allegedly unavailable evidence regarding changed country conditions where there had been a previous adverse credibility finding in the underlying asylum hearing); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency).

finding that the weight afforded to the applicant's evidence in immigration proceedings lies largely within the discretion of the agency


Context: the Ninth Circuit consistently characterizes the EEOC's pre-litigation requirements under 42 U.S.C. SS 2000e-5(b) as jurisdictional limitations to EEOC's initiating civil actions in federal court.

noting that the EEOC cannot " 'leapfrog[ ]' Title VII administrative procedures, which serve as jurisdictional prerequisites, by bringing an action to enforce a predetermination settlement agreement." (quoting Pierce Packing, 669 F.2d at 609

Pierce Packing, 669 F.2d at 607 (“Genuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit by the EEOC....”); EEOC v. Bruno’s Rest., 13 F.3d 285, 288 (9th Cir.1993) (“Concili ation is a jurisdictional condition precedent to suit by the EEOC.”); see also Munoz v. Mabus, 630 F.3d 856, 861 n. 3 (9th Cir.2010) (noting that the EEOC cannot “ ‘leapfrog[ ]’ Title VII administrative procedures, which serve as jurisdictional prerequisites, by bringing an action to enforce a predetermination settlement agreement.” (quoting Pierce Packing, 669 F.2d at 609)). Furthermore, district courts in this Circuit treat Title VII’s pre-litigation requirements as jurisdictional limitations.

"Genuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit by the EEOC...."


"Concili ation is a jurisdictional condition precedent to suit by the EEOC."


Context: It appears the district court may have mistakenly applied the line of cases giving law enforcement officers authority to detain occupants of a home during the execution of a search warrant authorizing a search of the home, without any particularized suspicion of criminal activity by the individuals detained.

holding "that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted"

See, e.g., Muehler v. Mena, 544 U.S. 93, 98, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005); Michigan v. Summers, 452 U.S. 692, 705, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981) (holding “that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted”); see also Ybarra v. Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979) (search or frisk of occupants of residence during execution of search warrant is unlawful unless based upon a particularized, reasonable suspicion that the individual subjected to the pat-down search is armed and dangerous).


Context: . Although the parties similarly failed to propose it, we have considered remanding to the BIA for a precedential opinion in the first instance.

remanding petitioner's appeal of BIA's streamlined affirmance of IJ's opinion to allow the BIA to address petitioner's novel issue of law, in the first instance, in a precedential opinion

See Smriko, 387 F.3d 279 (remanding petitioner's appeal of BIA's streamlined affirmance of IJ’s opinion to allow the BIA to address petitioner’s novel issue of law, in the first instance, in a precedential opinion); see also Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir.2010) ("[S]ince here we determine that the text of the relevant statute is clear, and the only question presented on appeal is a purely legal one, remand to the BIA for precedential interpretation in the first instance is unnecessary.”); Gutnik v. Gonzales, 469 F.3d 683, 691 (7th Cir.2006) (reading 8 C.F.R. § 1003.1(e)(4)(5) together to require only that the BIA not review cases resolving novel issues by affirmance without opinion, but not requiring a single BIA member to refer an appeal to a three-member panel).

"[S]ince here we determine that the text of the relevant statute is clear, and the only question presented on appeal is a purely legal one, remand to the BIA for precedential interpretation in the first instance is unnecessary."


Context: A public proceeding on a record can serve as a check on malicious or wrongful conduct by commission members, and this militates in favor of granting the defendants absolute immunity.

fact that "[tjhere is no requirement for a formal hearing" related to an attorney's application to become certified to represent indigent litigants, no "recor-dation of statements by witnesses or the applicant," and no "requirement that the Committee reveal the reasons for its decisions" militates against granting absolute immunity

See Butz, 438 U.S. at 513, 98 S.Ct. 2894 (noting, in support of its finding that absolute immunity was warranted, that, “[t]he parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record”); see also Mitchell v. Fishbein, 377 F.3d 157, 173 (2d Cir. 2004) (fact that “[tjhere is no requirement for a formal hearing” related to an attorney’s application to become certified to represent indigent litigants, no “recor-dation of statements by witnesses or the applicant,” and no “requirement that the Committee reveal the reasons for its decisions” militates against granting absolute immunity); see also Young, 41 F.3d at 53 (“access to a verbatim transcript” constitutes a procedural safeguard under this factor).

noting, in support of its finding that absolute immunity was warranted, that, "[t]he parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record"


"access to a verbatim transcript" constitutes a procedural safeguard under this factor


Context: Additionally, Fox raises claims relating to the conditions of his confinement. These claims are not addressed here because they are more appropriately raised in a petition for habeas corpus relief or in a civil action under 42 U.S.C. SS 1983 (2012).

See Kelsey v. State, 283 N.W.2d 892, 895 (Minn.1979) (stating that habeas corpus may be used to challenge prison conditions as cruel and unusual punishment); see also In re J.A.G., 113 Ill.App.3d 140, 68 Ill.Dec. 697, 446 N.E.2d 868, 870 (1983) (holding that delinquent minor could not challenge the conditions of his confinement on direct appeal from his commitment because the record would not be sufficiently developed on this issue to permit review).


Context: Eight other states statutorily require police to notify a minor's guardian or custodian immediately if a minor is taken into custody.

finding that mandates of notification statute were satisfied where "all reasonable efforts" were made by police to contact defendant's mother and not more than one hour could have elapsed before she was contacted and there was "no evidence of any intentional delay in contacting" defendant's mother

Cf. A Minor Boy v. State, 91 Nev. 456, 537 P.2d 477 (1975) (finding that mandates of notification statute were satisfied where “all reasonable efforts” were made by police to contact defendant’s mother and not more than one hour could have elapsed before she was contacted and there was “no evidence of any intentional delay in contacting” defendant’s mother); In re Williams, 265 S.C. 295, 217 S.E.2d 719 (1975) (holding that statements are admissible in absence of showing that parents were not notified in accordance with statute).

See People v. Gardner, 257 A.D.2d 675, 683 N.Y.S.2d 351 (1999) (observing that police are statutorily required to notify immediately guardian or parent of juvenile upon her arrest or statements made are inadmissible); Barrow v. State, 749 A.2d 1230 (Del.2000) (suppressing statements by juvenile -because parental notification statute violated); Palmer v. State, 626 A.2d 1358 (Del.1993) (reversing seventeen-year-old juvenile’s conviction because of police’s failure to timely notify custodian violated mandate of statute and constituted deprivation of defendant’s right to due process and self-incrimination rights); In re D.B., 303 Ill.App.3d 412, 237 Ill.Dec. 3, 708 N.E.2d 806, 811 (1999) (noting that purpose of law requiring immediate notification of parents when juvenile taken into custody “is to permit, where possible, a parent to confer with and counsel the juvenile before interrogation and confession”); Brown, supra, 182 Ill.App.3d 1046, 131 Ill.Dec. 534, 538 N.E.2d 909 (holding that police’s “flagrant[ ] violation]” of statute requiring officers to make reasonable attempts to notify parents among factors causing court to determine that defendant’s statement was involuntary and therefore should be suppressed); A Minor Boy v. State, 89 Nev. 564, 517 P.2d 183 (1973) (holding that consequence of deliberate violation of parental notification statute is suppression of statements made by defendant); State v. Johnson, 221 Mont. 503, 719 P.2d 1248 (1986) (holding that juvenile’s request for parent is invocation of Fifth Amendment rights); Sublette, supra, 365 No.2d 775 (observing that police officers’ failure to comply with statute requiring that parents be immediately notified upon arrest of child renders any statements made by juvenile inadmissible); M.M. v. State, 827 P.2d 1117 (Wyo.1992) (noting that law enforcement officials must comply with parental notification statute for juveniles’ statements to be admissible); MAC. v. Harrison County Family Court, supra, 566 No.2d 472 (finding that police’s blatant violation of juvenile’s statutory right to have parent present during interrogation required exclusion of any statements made).


holding that statements are admissible in absence of showing that parents were not notified in accordance with statute


reversing seventeen-year-old juvenile's conviction because of police's failure to timely notify custodian violated mandate of statute and constituted deprivation of defendant's right to due process and self-incrimination rights


noting that purpose of law requiring immediate notification of parents when juvenile taken into custody "is to permit, where possible, a parent to confer with and counsel the juvenile before interrogation and confession"


holding that police's "flagrant[ ] violation]" of statute requiring officers to make reasonable attempts to notify parents among factors causing court to determine that defendant's statement was involuntary and therefore should be suppressed


holding that consequence of deliberate violation of parental notification statute is suppression of statements made by defendant


holding that juvenile's request for parent is invocation of Fifth Amendment rights


noting that law enforcement officials must comply with parental notification statute for juveniles' statements to be admissible


Context: The State urges us to apply this "prosecution team" concept within the single agency of the Travis County District Attorney, suggesting that it was required to disclose only the Brady materials known to the office employees personally involved in the Hall prosecution. We find no support for the State's position.

duty under Brady applied despite prosecutor's lack of personal knowledge of favorable information in office files

See Ex parte Richardson, 70 S.W.3d 865, 871-73 (Tex.Crim.App.2002) (duty under Brady applied despite prosecutor’s lack of personal knowledge of favorable information in office files); see also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (recognizing that a prosecutor’s office is an “entity” and that information in the possession of one attorney in the office “must be attributed” to the office as a whole) (citing Restatement (Second) of Agency § 272 (1958)); Moore, 240 S.W.3d at 328 (“The duty to disclose under Brady arose only if the prosecutors or other members of the ‘prosecuting team’ knew of the investigation or had access to the information”).

recognizing that a prosecutor's office is an "entity" and that information in the possession of one attorney in the office "must be attributed" to the office as a whole


"The duty to disclose under Brady arose only if the prosecutors or other members of the 'prosecuting team' knew of the investigation or had access to the information"


Context: ACE argues that the categorical exclusion, by its own terms, does not apply to this case because helicopter permits are beyond the intended scope of the exclusion. When reviewing an agency's application of its own regulation, the agency's interpretation of its regulation must be given controlling weight unless it is plainly ' erroneous or inconsistent with the regulation.

Fish and Wildlife Service's interpretation of its own regulations entitled to deference

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 510-12, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir.1998) (Fish and Wildlife Service’s interpretation of its own regulations entitled to deference). Although this Circuit has not applied this standard specifically to categorical exclusions under NEPA, several other circuits have.

holding that deference is owed to an agency's interpretation of its own categorical exclusion regulations, so long as that interpretation is not plainly erroneous or inconsistent with the regulation

See West Houston Air Comm. v. FAA, 784 F.2d 702, 705 (5th Cir.1986) (holding that deference is owed to an agency’s interpretation of its own categorical exclusion regulations, so long as that interpretation is not plainly erroneous or inconsistent with the regulation); City of Alexandria v. Federal Highway Admin., 756 F.2d 1014, 1020 (4th Cir.985).


Context: The agency also reasonably determined that Lin did not establish a well-founded fear of persecution based on his baptism and practice of Christianity in the United States because Lin testified that he was a relatively new practitioner and evidence in the record indicated that officials primarily targeted spiritual leaders.

"[P]ersecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional."

See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.2007) (“[wjhere there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.”); Ivan-ishvili v. U.S. Dep’t of Justice, 483 F.3d 332, 341 (2d Cir.2006) (holding that harm must be sufficiently severe and rise above “mere harassment”); see also Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (“[P]ersecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”).

"Put simply, to establish a well-founded fear of persecution in the absence of any evidence of past persecution, an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities."

See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008) (“Put simply, to establish a well-founded fear of persecution in the absence of any evidence of past persecution, an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities.”); see also Jian Xing Huang, 421 F.3d 125 at 128-29. The agency also reasonably determined that Lin had not established a pattern or practice of persecution against Christians in China because the country conditions evidence in the record indicated that enforcement against underground churches varied throughout China and the Chinese government’s treatment of members of underground churches constituted harassment rather than persecution.


"[wjhere there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous."


holding that harm must be sufficiently severe and rise above "mere harassment"


Context: Although we are free to review de novo the application of law to undisputed facts, the existence of an employment relationship constitutes the "ultimate fact issue," which cannot be decided as a matter of law simply because the predicate facts are uncontested.

treating the issue as a question of fact, which turns chiefly on the worker's submission to control over the means of achieving a particular goal

See Darvell v. Paul A. Laurence Co., 239 Minn. 55, 62, 57 N.W.2d 831, 835 (1953) (stating the determination of an employment relationship is an “ultimate fact issue”); see also State by Spannaus v. Mecca Enters., Inc., 262 N.W.2d 152, 154 (Minn.1977) (treating the issue as a question of fact, which turns chiefly on the worker’s submission to control over the means of achieving a particular goal); Holzemer v. Minnesota Milk Co., 259 N.W.2d 592, 593 (Minn.1977) (same); Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 676 (Minn.1977) (same); Edelston v. Builders & Remodelers, Inc., 304 Minn. 550, 550-51, 229 N.W.2d 24, 25 (1975) (same); Hagberg v. Colonial & Pac. Frigidways, Inc., 279 Minn. 396, 403-04, 157 N.W.2d 33, 39 (1968) (same); Tretter v. Dart Transit Co., 271 Minn. 131, 134-36, 135 N.W.2d 484, 486-87 (1965); Frankle v. Twedt, 234 Minn. 42, 49-51, 47 N.W.2d 482, 488-89 (1951) (same); Turner v. Schumacher Motor Express, Inc., 230 Minn. 172, 175-76, 41 N.W.2d 182, 184 (1950) (same); Carter v. W.J. Dyer & Bro., 186 Minn. 413, 414-17, 243 N.W. 436, 437-38 (1932) (same); cf. Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 794 P.2d 138, 141 (1990) (analyzing the employment-status determination as an ultimate fact issue, which may not be decided on a motion for summary judgment if the undisputed predicate facts would support multiple inferences); Fleming v. Foothill-Montrose Ledger, 71 Cal.App.3d 681, 139 Cal.Rptr. 579, 581 (Ct.App.1977) (same); Murrell v. Goertz, 597 P.2d 1223, 1225 (Okla.Ct.App.1979) (same), cert. denied (Okla. July 16, 1979); Restatement (Second) of Agency § 220 cmt. c (1957) (same).

stating the determination of an employment relationship is an "ultimate fact issue"


analyzing the employment-status determination as an ultimate fact issue, which may not be decided on a motion for summary judgment if the undisputed predicate facts would support multiple inferences


Context: Our decision in Kim, as well as cases from other states, reveals that when courts have allowed a prior bad act to be introduced to prove motive, the prosecution actually presented sufficient alternate evidence to establish the defendant's identity as the perpetrator.

holding evidence of defendant's gambling losses and extramarital affair admissible to show motive to kill when he admitted to police that he drugged and robbed murder victims, but claimed he did not kill them

Kim, 153 N.H. at 325, 328 (holding evidence of defendant’s gambling losses and extramarital affair admissible to show motive to kill when he admitted to police that he drugged and robbed murder victims, but claimed he did not kill them); see State v. Carapezza, 191 P.3d 256, 261, 263 (Kan. 2008) (holding crack cocaine addiction admissible to prove motive to kill and rob when accomplice identified defendant and defendant’s cell mates testified she had admitted her actions); Adkins v. Com., 96 S.W.3d 779, 783-85, 793 (Ky. 2003) (affirming introduction of drug addiction to prove motive for robbery and murder when defendant admitted to being at victim’s house and substantial physical evidence linked him to the murder); Henness, 679 N.E.2d at 694 (holding drug addiction admissible to show motive to rob and kill when defendant had the victim’s car, check book, and credit cards, told his wife and a friend that he had killed the victim in self-defense, sold the car to a drug dealer, and used all the money from forged checks, credit card cash advances and car sale to purchase and use drugs), cert. denied, 522 U.S. 971 (1997).

holding crack cocaine addiction admissible to prove motive to kill and rob when accomplice identified defendant and defendant's cell mates testified she had admitted her actions


affirming introduction of drug addiction to prove motive for robbery and murder when defendant admitted to being at victim's house and substantial physical evidence linked him to the murder


holding drug addiction admissible to show motive to rob and kill when defendant had the victim's car, check book, and credit cards, told his wife and a friend that he had killed the victim in self-defense, sold the car to a drug dealer, and used all the money from forged checks, credit card cash advances and car sale to purchase and use drugs


Context: The court has noted that, although ITC generally focuses on annual time periods for the purpose of data analysis, it is not required by statute to use any particular time frame. In light of ITC's broad discretion in setting time periods for the collection of data, the court has held that, under certain circumstances, ITC cannot be compelled to analyze data on a quarterly basis.

American Spring Wire Corp., 8 CIT at 26, 590 F. Supp. at 1279 (ITC was not required to base its findings on a quarterly analysis of the most recent data available, since analysis of quarter-by-quarter data would distort significant long term trends).

See also, British Steel Corp., 8 CIT at 94, 593 F. Supp. at 411 (an analysis of recent quarterly data would not have negated the significance of the increasing absolute volume of imports on a long term basis).


American Spring Wire Corp., 8 CIT at 26, 590 F.Supp. at 1279 (ITC was not required to base its findings on a quarterly analysis of the most recent data available, since analysis of quarter-by-quarter data would distort significant long term trends).

See also, British Steel Corp., 8 CIT at 94, 593 F.Supp. at 411 (an analysis of recent quarterly data would not have negated the significance of the increasing absolute volume of imports on a long term basis).


Context: One of the acts of expression for which Plaintiff was disciplined was his distribution of the sexual harassment Complaint lodged against him. Regarding the content of the Complaint, it is well-settled that allegations of sexual harassment, like allegations of racial harassment, are matters of public concern.

finding that "reports of sexual harassment perpetrated on [the plaintiff] and other women at [the University of Texas Health Center]--is of great public concern"

See Connick, 461 U.S. at 146, 103 S.Ct. 1684 (noting that “it is clear that ... statements concerning the school district’s allegedly racially discriminatory policies involved a matter of public concern”) (citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979)); Wilson v. UT Health Ctr., 973 F.2d 1263, 1269 (5th Cir.1992) (finding that “reports of sexual harassment perpetrated on [the plaintiff] and other women at [the University of Texas Health Center]—is of great public concern”); see also Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir.2000) (finding that because the plaintiffs complaint was for race discrimination, it inherently involved a matter of public concern).


Context: Courts generally defer to the Executive Branch in matters of national security, particularly where the matter in question is "a sensitive and inherently discretionary judgment call [and] is committed by law to the appropriate agency of the Executive Branch."

Dep’t of the Navy v. Egan, 484 U.S. 518, 527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (deferring to mili-tar/s decision not to grant security clearance to openly gay woman).

stating that the Army's decision not to award commission to, or alternatively to discharge, a medical specialist is not renewable

See also Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (stating that the Army’s decision not to award commission to, or alternatively to discharge, a medical specialist is not renewable).


Context: . Although briefly addressed by the Maryland Defendants, see Appellee's Br. at 16-17, our case law appears to consider these as two separate and independent inquiries for which a Second Amendment challenger must plead factual circumstances that remove the challenger's circumstances from the "realm of ordinary challenges." We have rejected challenges as being in the realm of ordinary challenges with respect to "in defense of hearth and home" on the basis that a "fear of being robbed ... is far too vague and unsubstantiated to remove [a] case from the typical felon in possession case."

Moore, 666 F.3d at 320; see Smoot, 690 F.3d at 222 (rejecting a desire to possess a weapon premised on a tip that "other people were looking for [the defendant]" on the same basis); see also Pruess, 703 F.3d at 246 (rejecting desire to possess ammunition primarily for hunting purposes on the same basis).


Context: Once again we emphasize the obvious simply because it is so consistently elided by Gilday, both below and on appeal: The Gil-day injunction grants Gilday no right or privilege to place any telephone call, nor has Gilday cited any authoritative decision indicating that conditioning prison-telephone utilization on informed prisoner consent to reasonable prison-security safeguards violates a federal or state right.

See Langton, 71 F.3d at 936 (stating: “at the least, grounds exist for genuine dispute” about whether DOC “defendants are authorized by law” to require prisoner consent to MITS regime) (citing Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir.1990) (holding that “implied consent” is inferred from circumstances indicating that party knowingly agreed to surveillance)); see also Washington, 35 F.3d at 1100 (prison may impose rational limits on inmate telephone access, including subjecting inmates to MITS-type system); Strandberg, 791 F.2d at 747 (prisoner’s right to telephone access subject to reasonable restrictions); Feeley, 570 F.2d at 374 (right of’ pretrial detainees to place telephone calls is subject to reasonable restrictions); Cacicio, 665 N.E.2d at 90 (upholding MITS as reasonable security measure).

stating: "at the least, grounds exist for genuine dispute" about whether DOC "defendants are authorized by law" to require prisoner consent to MITS regime


right of' pretrial detainees to place telephone calls is subject to reasonable restrictions


rejecting argument that prison may deem consent implied in situations where inmate must consent to terms in order to place calls, but finding surveillance of prison phones "a necessary price for prison security"

But cf. United States v. Cheely, 814 F.Supp. 1430, 1443-44 (D.Alaska 1992) (rejecting argument that prison may deem consent implied in situations where inmate must consent to terms in order to place calls, but finding surveillance of prison phones “a necessary price for prison security”), aff'd, 36 F.3d 1439 (9th Cir.1994).


Context: Moreover, the pork substitutes are provided from items already in the Prison kitchen, but the proposed hot kosher diet would require the Prison to undertake the extra effort to obtain frozen meals from a new vendor and specially heat them in a conventional or microwave oven. Under these circumstances, Muslim and Jewish inmates are not similarly situated, because the accommodation of Jewish inmates would require substantially greater effort than the accommodation of Muslim inmates.

See Dexter v. Kirschner, 984 F.2d 979, 986 (9th Cir.1992) (patients with same disease not similarly situated unless they can be treated with the same procedure); cf. Klinger v. Department of Corrections, 31 F.3d 727, 732-733 (8th Cir.1994) (men and women at different prisons with different administrative and security concerns not similarly situated).


Context: Cummings illustrates the problem: the separate categories of "support" and "equitable distribution of property" may well overlap. The need for on-going support may "depend on how much property the less well-off spouse is given outright."

finding divorce court's award of lump sum of $135,000, in addition to "support" of $5,500 per month, was in the nature of alimony where state court had expressly observed that former wife would need a portion of the $135,000 for her support

Werthen v. Werthen (In re Wertken), 329 F.3d 269, 273 (1st Cir.2003) (upholding bankruptcy court’s determination that an obligation labeled by divorce court as a property division, awarded in addition to child support payments, was intended to function as child and spousal support and therefore non-dischargeable); See also Wright v. Wright (In re Wright), 184 B.R. 318 (Bankr.N.D.Ill.1995) (finding divorce court’s award of lump sum of $135,000, in addition to “support” of $5,500 per month, was in the nature of alimony where state court had expressly observed that former wife would need a portion of the $135,000 for her support).

upholding bankruptcy court's determination that an obligation labeled by divorce court as a property division, awarded in addition to child support payments, was intended to function as child and spousal support and therefore non-dischargeable


Context: . Indeed, while it may have been the case, it cannot be conclusively determined from the record that the Magistrate Judge notified the parties prior to trial that he intended to convene an advisory jury under Rule 39(c). In this regard, we acknowledge the approach of other circuits which indicate that the failure to provide such notice is reversible error, as the parties may have engaged in a different trial strategy had they known of the jury's advisory capacity.

examining the plain language of the rule and policy considerations of trial tactics and concluding "the rule requires that the court's initiative in ordering a trial to an advisory jury must occur, and the parties be made aware of it, before the case is submitted"

See Thompson v. Parkes, 963 F.2d 885, 888 (6th Cir.1992) (examining the plain language of the rule and policy considerations of trial tactics and concluding "the rule requires that the court’s initiative in ordering a trial to an advisory jury must occur, and the parties be made aware of it, before the case is submitted”); Bereda v. Picker ing Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir.1989) (requiring a district court to "notify both sides of a jury's advisory status no later than the time at which the jury selection has begun”); Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981) (recognizing that "there are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury”); cf. Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 827 (2d Cir.1994) (recognizing "that such notice is preferable,” rejecting a per se rule of notice, and requiring instead that the complaining party show "demonstrable prejudice”).

recognizing "that such notice is preferable," rejecting a per se rule of notice, and requiring instead that the complaining party show "demonstrable prejudice"


requiring a district court to "notify both sides of a jury's advisory status no later than the time at which the jury selection has begun"


recognizing that "there are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury"


Context: Some options were "sexually suggestive" and some were "innocuous." The Ninth Circuit held that the dating service was not an information content provider of the libelous profile.

Craigslist did not "cause" discriminatory housing advertisements within the meaning of the Fair Housing Act, 42 U.S.C. SS 3604(c

Id. at 1172; see Universal Commc’n Sys., 478 F.3d at 420 (messaging board immune with respect to posts it did not prompt); cf. Chi. Lawyers’ Comm., 519 F.3d at 671 (Craigslist did not “cause” discriminatory housing advertisements within the meaning of the Fair Housing Act, 42 U.S.C. § 3604(c), by hosting online marketplace where they were posted).


Context: Further, it is a cardinal principle that the Secretary's interpretation of the statute need not be the only reasonable interpretation or the one which the court views as the most reasonable.

"[I]f found to 'implement the Congressional mandate in some reasonable manner,' [regulation] must be upheld."

See also United States v. Cornell, 389 U.S. 299, 307, 88 S.Ct. 445, 450, 19 L.Ed.2d 537 (1967) (“[I]f found to ‘implement the Congressional mandate in some reasonable manner,’ [regulation] must be upheld.”).

regulation which had a "reasonable basis" in the statutory history upheld, even though taxpayer's challenge had "logical force"

See, e.g., Fulman v. United States, 434 U.S. 528, 534-36, 98 S.Ct. 841, 845-46, 55 L.Ed.2d 1 (1978) (regulation which had a “reasonable basis” in the statutory history upheld, even though taxpayer’s challenge had “logical force”).


Context: The district court did not abuse its discretion by denying Gambill leave to proceed in forma pauperis because Gambill failed to allege a claim against any defendant under any cognizable legal theory.

See id. at 1370 (“A district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.”); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir.1988) (court may sua sponte dismiss an action for failure to state a claim without notice or an opportunity to respond where plaintiff cannot possibly win relief); see also McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir.1996) (Rule 8 is an independent basis of dismissal and requires each averment of a pleading to be simple, concise, and direct, stating which defendant is liable to the plaintiff for which wrong).


Context: Turning to the case before us, we hold that the absence of a receipt from the appellant for a copy of the staff judge advocate's recommendation does not evidence a failure to comply with Rule for Courts-Martial 1106(f)(1), because such affirmative proof of service is not required.

Cf. United States v. Yates, 28 M.J. 60 (C.M.A.1989) (presumption that acting commander assumed command in accordance with regulations); United States v. Moschella, 43 C.M.R. 383 (C.M.A.1971) (presumption that amended convening order was properly promulgated).

See United States v. Ponder, 29 M.J. 782 (A.C.M.R.1989) (presumption that staff judge advocate had authority to excuse court members).


Context: In post-Troxel decisions, courts of last resort in Maryland and Illinois have likewise held their state visitation statutes unconstitutional where grandparents were required to prove only that visitation was in their grandchild's best interest without a preliminary finding that the parents opposing the visits were unfit to make that decision.

holding Troxel not controlling where state's supreme court previously held rational basis review sufficient based on minimal intrusion of grandparent visitation and other parental protections afforded by visitation statute

But see In re G.P.C., 28 S.W.3d 357, 365-66 (Mo.Ct.App.2000) (holding Troxel not controlling where state’s supreme court previously held rational basis review sufficient based on minimal intrusion of grandparent visitation and other parental protections afforded by visitation statute).

holding grandparent visitation statute serves compelling state interest in maintaining grandparent-grandchild relationship where grandparents had raised child for period of time, but agreeing with trial court that something more than child's best interest must be established to serve compelling state interest

Lulay v. Lulay, 193 Ill.2d 455, 250 Ill.Dec. 758, 739 N.E.2d 521, 534 (2000); Brice v. Brice, 133 Md.App. 302, 754 A.2d 1132, 1135-36 (2000); see also Rideout v. Riendeau, 761 A.2d 291, 301-03 (Me.2000) (holding grandparent visitation statute serves compelling state interest in maintaining grandparent-grandchild relationship where grandparents had raised child for period of time, but agreeing with trial court that something more than child’s best interest must be established to serve compelling state interest).


Context: Our Supreme Court adopted the federal "objective reasonableness" standard when determining whether a law enforcement officer is entitled to qualified immunity.

a reasonable officer could have believed that defendant police detective had probable cause to arrest plaintiff for scalding his girlfriend's child

Kirk v. City of Newark, supra, 109 N.J. at 187, 536 A.2d 229 (a reasonable officer could have believed that defendant police detective had probable cause to arrest plaintiff for scalding his girlfriend’s child); see also Plummer v. Department of Corrections, 305 N.J.Super. 365, 373, 702 A.2d 535 (App.Div.1997) (corrections officers’ arrest of plaintiff, a former inmate, seen on or near state prison grounds, was objectively reasonable); McKinney v. East Orange Mun. Corp., 284 N.J.Super. 639, 651, 666 A.2d 191 (App.Div.1995), certif. denied, 143 N.J. 519, 673 A.2d 277 (1996) (obtaining search warrant and manner of its execution were both objectively unreasonable); Gurski v. New Jersey State Police Dep’t, 242 N.J.Super. 148, 159, 576 A.2d 292 (App.Div.1990) (probable cause existed for warrant for search of plaintiffs home but manner in which search was conducted was objectively unreasonable).

corrections officers' arrest of plaintiff, a former inmate, seen on or near state prison grounds, was objectively reasonable


obtaining search warrant and manner of its execution were both objectively unreasonable


probable cause existed for warrant for search of plaintiffs home but manner in which search was conducted was objectively unreasonable


Context: At that time, preference eligible veterans, including preference eligible FBI employees, already had the right to appeal their removal to the Civil Service Commission under Section 14 the Veterans' Preference Act of 1944, 58 Stat. 390, as amended 61 Stat. 723 ("[A] preference eligible ... shall have the right to appeal to the Civil Service Commission from, an adverse decision of the administrative officer."). Preference eligible FBI agents could exercise this right just as well as preference eligible employees of other agencies.

"Because of the exemption of the FBI from the civil service laws, the Bureau is generally free to discharge its employees for any reasons it chooses," but "like any other employer, the FBI is subject to the provisions of SS 9(c

Cf. Carter v. United States, 407 F.2d 1238, 1242 & n. 3 (D.C.Cir.1968) (“Because of the exemption of the FBI from the civil service laws, the Bureau is generally free to discharge its employees for any reasons it chooses,” but “like any other employer, the FBI is subject to the provisions of § 9(c) of the Universal Military Training and Service Act by which Congress granted special rights and protections to the returning veteran,” though that agent could not appeal to the Civil Service Commission because he was not preference eligible).

discussing preference eligible FBI agent's rights under the Veterans Preference Act

See id. (granting appeal rights to preference eligible employees “in any establishment, agency, bureau, administration, project, or department” without qualification on agency); Chastain v. Kelley, 510 F.2d 1232, 1236 (D.C.Cir.1975) (discussing preference eligible FBI agent’s rights under the Veterans Preference Act).


Context: The facts here are markedly different: the plaintiffs have alleged that Wojcik and Savage violated Pauluk's constitutional rights by moving him into a municipal building where he was exposed to toxic mold over the course of several years -- along with countless other employees, including the defendants. Wojcik and Savage's decision to reassign Pauluk more closely resembles the cases in which this court has declined to find a cognizable due process violation due to the unforeseeable nature of the' plaintiffs' injuries and the fact that the danger facing the plaintiff existed independent of state action.

"[I]n each of the cases in which we have applied the danger-creation exception, ultimate injury to the plaintiff was foreseeable."

See, e.g., Patel, 648 F.3d at 976 (holding no rational fact finder could conclude that a teacher acted with deliberate indifference to her student’s well-being because the teacher “did not know there was any immediate danger in allowing [the plaintiff] to briefly use the next-door bathroom alone”); Huffman v. County of Los Angeles, 147 F.3d 1054, 1061 (9th Cir.1998) (finding no liability where an individual was shot during a barroom brawl' by an off-duty deputy on the grounds that the injury was an unforeseeable consequence of a county policy requiring off-duty officers to carry a firearm); see also Lawrence v. United States, 340 F.3d 952, 957 (9th Cir.2003) (“[I]n each of the cases in which we have applied the danger-creation exception, ultimate injury to the plaintiff was foreseeable.”).

holding no rational fact finder could conclude that a teacher acted with deliberate indifference to her student's well-being because the teacher "did not know there was any immediate danger in allowing [the plaintiff] to briefly use the next-door bathroom alone"


finding no liability where an individual was shot during a barroom brawl' by an off-duty deputy on the grounds that the injury was an unforeseeable consequence of a county policy requiring off-duty officers to carry a firearm


Context: Safety of the community is implicated not only by violence, but also by narcotics trafficking. In cases involving the instant drug offenses, the danger to the community is the likelihood that the defendant will, if released, traffic in illicit drugs.

See United States v. Perry, 788 F.2d 100, 111 (3d Cir.1986)(danger to community arises from the likelihood that the defendant will, if released, commit one of the proscribed federal offenses).

Cf. United States v. Strong, 775 F.2d 504, 507 (3d Cir.1985)(statutory language unequivocably establishes that Congress intended to equate traffic in drugs with a danger to the community).


Context: Martin does not dispute that had he been in attendance, he would have been permitted to have his attorney present, confront the witnesses who testified, and call witnesses to speak on his behalf. While he alludes to possible problems with notice for the May 3 hearing, the Court finds that Defendants' repeated attempts to provide Martin with the necessary information constitute constructive service.

post-termination proceedings require, at a minimum " 'that the discharged employee be permitted to attend the hearing, to have the assistance of counsel, to call witnesses and produce evidence on his own behalf, and to know and have an opportunity to challenge the evidence against him/ " (quoting Carter, 767 F.2d at 273

Cf. Mitchell, 375 F.3d at 480-81 (post-termination proceedings require, at a minimum “ ‘that the discharged employee be permitted to attend the hearing, to have the assistance of counsel, to call witnesses and produce evidence on his own behalf, and to know and have an opportunity to challenge the evidence against him/ ” (quoting Carter, 767 F.2d at 273)).

Constitution only requires notice that is "reasonably calculated" to apprise party of action

See Karkoukli’s, Inc. v. Dohany, 409 F.3d 279, 285 (6th Cir.2005) (Constitution only requires notice that is “reasonably calculated” to apprise party of action). In all, Martin raises no legitimate objections to the method by which Defendants carried out the May 3 hearing and its sufficiency under the Fourteenth Amendment.


Context: First, McDonough has not pointed us to any evidence to establish that she was substantially limited in the major life activity of working. "Working can be considered a major life activity."

"The number of Americans restricted by back problems to light work is legion. They are not disabled."

See, e.g., Whitlock v. Mac-Gray, Inc., 345 F.3d 44, 46 (1st Cir.2003) (holding that plaintiff could not show that he was disabled because he conceded that he could do his job despite his impairment); see also Mays v. Principi, 301 F.3d 866, 869 (7th Cir.2002) (“The number of Americans restricted by back problems to light work is legion. They are not disabled.”).


Context: Defendant also states incompletely the law on. publication of opinions ac companied by full disclosure of the facts on which they are based. Defendant is correct that "when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment."

noting that opinions based on disclosed facts are not actionable "where the underlying facts are not actionable because they are nondefa-matory" and "where [the underlying facts] are not actionable because there is an absence of actual malice"

Partington, 56 F.3d at 1157. This principle “assumes, however, that the factual basis itself is true.” Flowers, 310 F.3d at 1129; Standing Committee v. Yagman, 55 F.3d 1430, 1440 (9th Cir.1995) (“Where a publication sets forth the facts underlying its statement of opinion and those facts' are true, the Constitution protects that opinion from liability for defamation.” (internal quotations and alterations omitted)); Dodds, 145 F.3d at 1067 (noting that opinions based on disclosed facts are not actionable “where the underlying facts are not actionable because they are nondefa-matory” and “where [the underlying facts] are not actionable because there is an absence of actual malice”); Franklin, 10 Cal.Rptr.3d at 438. A speaker, therefore, properly finds protection in the First Amendment when he publishes opinions based either upon fully disclosed, true facts, see, e.g., Partington, 56 F.3d at 1154 (“Where, as here, an author writing about a controversial occurrence fairly describes the general events involved and offers his own personal perspective about some of its ambiguities and disputed facts, his statements should generally be protected by the First Amendment.”), or upon facts otherwise commonly known to the audience, such as facts that are a matter of public knowledge.

dismissing Johnnie Cochran, Esq.'s suit against the New York Post, because the statement "history reveals that [Cochran] will say or do just about anything to win, typically at the expense of truth" was based upon disclosed facts, and not "on any additional, undisclosed facts not known to the public"

See, e.g., Cochran, 58 F.Supp.2d at 1122 (dismissing Johnnie Cochran, Esq.’s suit against the New York Post, because the statement “history reveals that [Cochran] will say or do just about anything to win, typically at the expense of truth” was based upon disclosed facts, and not “on any additional, undisclosed facts not known to the public”); Goetz v. Kunstler, 164 Misc.2d 557, 563, 625 N.Y.S.2d 447 (N.Y.Sup.Ct.1995) (dismissing complaint of Bernhard Goetz against William Kunstler, Esq., in part because Mr. Kunstler’s “description of Goetz as a ‘murderous vigilante’ would be understood as an opinion, a mere hypothesis based upon facts both widely known and fully set forth”).


dismissing complaint of Bernhard Goetz against William Kunstler, Esq., in part because Mr. Kunstler's "description of Goetz as a 'murderous vigilante' would be understood as an opinion, a mere hypothesis based upon facts both widely known and fully set forth"


"Where, as here, an author writing about a controversial occurrence fairly describes the general events involved and offers his own personal perspective about some of its ambiguities and disputed facts, his statements should generally be protected by the First Amendment."


Context: The BIA did not abuse its discretion in denying Anaya Morales' motion to remand because he failed to show he was prejudiced by his counsels' performance.

See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826-28 (9th Cir.2003) (no prejudice where motion failed to present plausible grounds for relief); see also Zetino, 622 F.3d at 1016 (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir.2010).

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


Context: Having determined that Ries was seized, we turn to whether the pat search falls within an exception to the warrant requirement. The district court concluded that the search fell within the emergency-aid exception.

See State v. Lemieux, 726 N.W.2d 783, 788-90 (Minn. 2007) (holding warrantless entry of residence was justified by need to search for intruders or injured occupants); see also Lopez, 698 N.W.2d at 23 (concluding war-rantless seizure of unconscious driver was justified by emergency-aid exception).


Context: 13. In seeking to satisfy legitimate tax debts, the government may levy on property held by a corporation or other business entity, when the corporation or other business entity is determined to be the alter ego or nominee of the taxpayer.

church was the alter ego of the taxpayer and could be levied on to satisfy taxpayer's delinquent taxes

Valley Fin., Inc. v. United States, 629 F.2d 162, 171 (D.C.Cir.1980) (corporation was not considered to be a separate entity for tax purposes since it was the alter ego of the taxpayer); see also Loving Saviour Church v. United States, 728 F.2d 1085 (8th Cir.1984) (church was the alter ego of the taxpayer and could be levied on to satisfy taxpayer’s delinquent taxes); United States v. Williams, 581 F.Supp. 756 (N.D.Ga.1982) (although legal title was in the name of Helen Williams, she held title as the nominee of her son); Simpson v. United States, 63 A.F.T.R.2d (P-H) para. 89-514 (M.D.Fla.1989) (title holder held title as nominee of taxpayer).


although legal title was in the name of Helen Williams, she held title as the nominee of her son


Context: The question of prejudice is one for the trier of fact, with each case resting upon its own merits. However, a reasonable factfinder, believing that promises conditioned upon timely performance should be kept when made, could have determined that the loss was not enough to warrant granting Ocean Atlantic's motion for specific performance.

suggesting that eccentric homeowner who insists on using Reading pipe should not be forced to accept Cohoes pipe that general contractor believes is "just as good"

See Kansas Bankers, 963 F.2d at 294 (parties “who have bargained for strict compliance with specific time requirements ... inherently are prejudiced by noncompliance” with those deadlines); Dove v. Rose Acre Farms Inc., 434 N.E.2d 931 (Ind. App.Ct.1982); see also Jacob & Youngs, 129 N.E. at 891 (suggesting that eccentric homeowner who insists on using Reading pipe should not be forced to accept Cohoes pipe that general contractor believes is “just as good”). We refuse to hold that the trial judge committed clear error.

parties "who have bargained for strict compliance with specific time requirements ... inherently are prejudiced by noncompliance" with those deadlines


Context: In further contrast to Dubria, any curative statement made by the judge was not sufficient to avoid the injurious !effect on the verdict. Given the highly inflammatory content of the tape suggesting that the medical evidence was far more conclusive than it actually was, even with a curative instruction, the injurious effect on the jury's verdict could not have been mitigated.

"This is not a case in which the statements at issue are so clearly prejudicial that a curative instruction could not mitigate their effect."

See United States v. Gillespie, 852 F.2d 475, 479 (9th Cir.1988) (finding under the circumstances that “the trial court’s curative instruction to the jury was not sufficient to obviate the prejudice”); cf. Dubria, 224 F.3d at 1002 (“This is not a case in which the statements at issue are so clearly prejudicial that a curative instruction could not mitigate their effect.”).

finding under the circumstances that "the trial court's curative instruction to the jury was not sufficient to obviate the prejudice"


Context: A claim of unconstitutional shackling is subject to a harmless error analysis. In order to succeed on such claim, a defendant must show prejudice, that is, "a substantial or injurious effect or influence on the jury's verdict."

defendant's mere appearance in handcuffs during jury selection does not indicate the incident "inflamed or prejudiced" the jurors against him

Hutchinson, 135 Wn.2d at 888. Accord State v. Early, 70 Wn. App. 452, 462, 853 P.2d 964 (1993) (defendant’s mere appearance in handcuffs during jury selection does not indicate the incident “inflamed or prejudiced” the jurors against him), review denied, 123 Wn.2d 1004, 868 P.2d 872 (1994).

See also Gosser, 33 Wn. App. at 435 (it is not reversible error simply because jurors see a defendant wearing shackles).


Context: On the other hand, such canons are routinely discarded when they do not further a statute's remedial purposes.

"Rules of construction are not laws, hard and inflexible, which must be applied in a given situation simply because it is possible to do so."

See Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n.23 (1983); see also Hardesty v. Andró Corp., 555 P.2d 1030, 1036 (Okla. 1976) (expressio unius maxim is “to be applied with great caution, is not of universal application, and is not conclusive as to the meaning of a statute”); cf. State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135,1140 (1981) (“Rules of construction are not laws, hard and inflexible, which must be applied in a given situation simply because it is possible to do so.”). As noted, the Legislature passed the 1976 amendment, not to limit the damages available to the relatives of adult decedents, but rather to further the remedial purposes of the WDA by developing the definition of pecuniary injuries.

expressio unius maxim is "to be applied with great caution, is not of universal application, and is not conclusive as to the meaning of a statute"


Context: FOIA is designed, however, to benefit the public, not specific litigants.

recognizing that a requester's "rights under the Act are neither increased nor decreased by reason of the fact that [he or she] claims an interest in the [requested records] greater than that shared by the average members of the public"

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (recognizing that a requester’s “rights under the Act are neither increased nor decreased by reason of the fact that [he or she] claims an interest in the [requested records] greater than that shared by the average members of the public”); see also NLRB v. Robbins Tire & Rubber Company, 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (noting that the “FOIA was not intended to function as a private discovery tool”).

noting that the "FOIA was not intended to function as a private discovery tool"


Context: It asks to be declared representative of the few (five or six), not the many, whether the comparison group is all TRAC members or all Allnet subscribers June-December 1984. Even in an equitable relief context, TRAC's plea for standing would stray from the core concept of associational representation.

court grants standing to association to seek injunctive relief to benefit 6 of its 3,500 members, while noting that "we might feel more confident of [the association's] taking a vigorous, adversarial stance had plaintiff been able to identify more members adversely affected by the Act"

See, e.g., NAACP v. Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958) (association has standing to assert members’ rights “because it and its members are in every practical sense identical [and it] is but the medium through which individual members seek to make more effective the expression of their own views”); Robinson v. Conslisk, 385 F.Supp. 529, 538 (N.D.Ill.1974) (“Since the League is the collective embodiment of its members, the League has standing to protect its members’ rights against encroachment by third parties.”); cf. Action Alliance for Senior Citizens v. Shapp, 400 F.Supp. 1208, 1213 (E.D.Pa.1975) (court grants standing to association to seek injunctive relief to benefit 6 of its 3,500 members, while noting that “we might feel more confident of [the association’s] taking a vigorous, adversarial stance had plaintiff been able to identify more members adversely affected by the Act”).

association has standing to assert members' rights "because it and its members are in every practical sense identical [and it] is but the medium through which individual members seek to make more effective the expression of their own views"


"Since the League is the collective embodiment of its members, the League has standing to protect its members' rights against encroachment by third parties."


Context: In part because courts are reluctant to discourage cooperation between agencies, the mere fact of federal participation in an investigation does not suffice to establish an improper "working arrangement."

explaining that FBI agents properly interrogated defendants who were in state custody because they had a "duty to endeavor to ascertain all the available facts about the federal crimes which they were investigating"

See Coppola, 281 F.2d at 344 (explaining that FBI agents properly interrogated defendants who were in state custody because they had a “duty to endeavor to ascertain all the available facts about the federal crimes which they were investigating”).

finding FBI's participation (including conducting search) during execution of INS warrant did not "taint the administrative arrest"

See also Barnett v. U.S., 384 F.2d 848, 857 (5th Cir.1967); Gaines, 555 F.2d at 624. Cf. Abel v. United States, 362 U.S. 217, 229, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (finding FBI’s participation (including conducting search) during execution of INS warrant did not “taint the administrative arrest”).


Context: . While the FDCPA explicitly provides for money damages, it does not provide for injunctive relief in private actions.

See, e.g., Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir.2004) ("[Ijnjunctive and declaratory relief are not available to litigants acting in an individual capacity under the FDCPA.’'); Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877, 882 (7th Cir.2000) (noting that "all private actions under the Fair Debt Collection Practices Act are for damages"); Sibley v. Fulton DeKalb Collection Serv., 677 F.2d 830, 834 (11th Cir.1982) (holding that equitable relief is not available to an individual under this section of the FDCPA); Sparkman v. Zwicker & Assocs., P.C., 374 F.Supp.2d 293, 299 (E.D.N.Y.2005) (holding that "neither injunctive nor declaratory relief is available to private litigants under the FDCPA"); see also Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 977 n. 39 (5th Cir.2000) (noting that several courts have held that the FDCPA does not authorize equitable relief); but see, e.g., Schwarm v. Craighead, 233 F.R.D. 655, 663 (E.D.Cal.2006) (certifying injunctive class action in FDCPA suit); Hansen v. Ticket Track, Inc., 213 F.R.D. 412, 416 (W.D.Wash.2003) (same).

"[Ijnjunctive and declaratory relief are not available to litigants acting in an individual capacity under the FDCPA.''


noting that "all private actions under the Fair Debt Collection Practices Act are for damages"


holding that equitable relief is not available to an individual under this section of the FDCPA


holding that "neither injunctive nor declaratory relief is available to private litigants under the FDCPA"


Context: The ex post facto clause prohibits the enactment of statutes that punish as a crime an act previously committed which was innocent when done.

"Since conspiracy is a continuous crime, a statute increasing the penalty for a conspiracy beginning before the date of enactment but continuing after-wards does not violate the ex post facto clause."

See United States v. Terzado-Madruga, 897 F.2d 1099, 1124 (11th Cir.1990) (“Since conspiracy is a continuous crime, a statute increasing the penalty for a conspiracy beginning before the date of enactment but continuing after-wards does not violate the ex post facto clause.”); see also United States v. Paradies, 98 F.3d 1266, 1284 (11th Cir.1996) (“There was sufficient evidence upon which the jury could have found that Jackson’s fraudulent scheme began in 1985 but continued until the end of his tenure as a councilman (1990) ...

"There was sufficient evidence upon which the jury could have found that Jackson's fraudulent scheme began in 1985 but continued until the end of his tenure as a councilman (1990


Context: Under the objective standard, a plaintiff must allege a deprivation "sufficiently serious" to constitute a constitutional violation. A plaintiff may satisfy the objective prong by alleging that his prison work duties created a serious risk of seri ous injury.

granting summary judgment to defendants when prisoner's medical records did not show "his back problem was serious enough to prevent him from performing the tasks required of [his position as] a mess hall worker"

Cf. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.1989) (prisoner properly alleged an Eighth Amendment claim when he claimed that his work detail assignment seriously aggravated his serious physical condition); Baumann v. Walsh, 36 F.Supp.2d 508, 513 (N.D.N.Y.1999) (prisoner alleged Eighth Amendment claim when he alleged that he had been required to climb along top shelf of storage room); Thomas v. Coombe, 95-CV-10342, 1998 WL 20000, at *2 (S.D.N.Y. Jan. 20, 1998) (prisoner set forth Eighth Amendment claim when she alleged that she had been required to perform heavy kitchen work in contravention of doctor’s orders); but see Wilson v. Johnson, 999 F.Supp. 394, 399 (W.D.N.Y.1998) (granting summary judgment to defendants when prisoner’s medical records did not show “his back problem was serious enough to prevent him from performing the tasks required of [his position as] a mess hall worker”).


prisoner alleged Eighth Amendment claim when he alleged that he had been required to climb along top shelf of storage room


prisoner set forth Eighth Amendment claim when she alleged that she had been required to perform heavy kitchen work in contravention of doctor's orders


Context: . If the government were correct that X-Citement Video announced a new rule, this would provide an additional ground for our conclusion that the cause and prejudice requirement does not apply. We have consistently permitted defendants to challenge their convictions in SS 2255 motions, where there has been an intervening change in the law after the time for direct appeal has run.

holding that the novelty of a petitioner's claim can constitute cause for a procedural default

See, e.g., Sood, 969 F.2d at 775 (defendants pled guilty and did not challenge their convictions until post-conviction collateral proceedings); see also Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984) (holding that the novelty of a petitioner’s claim can constitute cause for a procedural default).


Context: Contrary to what we said in Major, which was dicta and did not directly control the outcome of the case, this court, and other districts, have consistently ruled that attempted robbery with a deadly weapon is a second degree felony.

See Whidden v. State, 374 So.2d 543, 545 (Fla. 2d DCA 1979) (discussing the robbery statute and concluding that attempted robbery with a deadly weapon is a second degree felony as provided in the attempt statute, section 777.04); see also Williams v. State, 850 So.2d 656 (Fla. 1st DCA 2003) (citing Whidden and recognizing that attempted armed robbery is a second degree felony); Lopez v. State, 781 So.2d 473 (Fla. 3d DCA 2001) (recognizing that attempted robbery with a deadly weapon is a second degree felony); Westbrook v. State, 617 So.2d 782 (Fla. 4th DCA 1993) (directing the trial court to correct the judgment, which erroneously stated that attempted robbery with a deadly weapon was a first degree felony, when it is a second degree felony); Arthur v. State, 391 So.2d 338 (Fla. 4th DCA 1980) (citing Whidden and agreeing that attempted robbery with a firearm is a second degree felony).


directing the trial court to correct the judgment, which erroneously stated that attempted robbery with a deadly weapon was a first degree felony, when it is a second degree felony


Context: Second, as previously mentioned in this opinion, Matheny's prior convictions support the reasonableness of the district court's sentence. Because Matheny cannot demonstrate prejudice from the district court's consideration of one prior arrest, his substantial rights have not been affected.

stating that "[njormally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the 'affecting substantial rights' prong of Rule 52(b

See Hawk Wing, 433 F.3d at 629 (“[W]e conclude that the district court had adequate grounds to depart upward despite its error in considering the prior arrests for which the PSR did not set forth the factual details.”); see also Olano, 507 U.S. at 735, 113 S.Ct. 1770 (stating that “[njormally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of Rule 52(b)”).

"[W]e conclude that the district court had adequate grounds to depart upward despite its error in considering the prior arrests for which the PSR did not set forth the factual details."


Context: The district court properly granted summary judgment on Stringer's claim against defendant Koehn because Stringer failed to raise a genuine dispute of material fact as to whether defendant Koehn consciously disregarded a serious risk to Stringer's health in addressing his abdominal pain.

See Farmer v. Brennan, 511 U.S. 825, 845, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (a prison official acts with deliberate indifference if “he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it”); Toguchi, 391 F.3d at 1058 (to show deliberate indifference, prisoner must establish that the chosen course of treatment “was medically unacceptable under the circumstances” (citation and internal quotation marks omitted)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (party opposing summary judgment may not rest on con-clusory assertions, but must come forward with significant probative evidence).

a prison official acts with deliberate indifference if "he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it"


Context: Although the United States Court of Appeals for the Fourth Circuit has not yet addressed ERISA's preemptive effects on state exemption statutes like Virginia's, several other circuits have. The majority of those circuits have held that ERISA's savings clause precluded preemption of state exemption statutes.

acknowledging that exemption statutes dealing with IRAs are outside ERISA's scope and therefore not preempted

See also In re Weinhoeft, 275 F.3d 604, 605 (7th Cir.2001) (acknowledging that exemption statutes dealing with IRAs are outside ERISA’s scope and therefore not preempted).

See In re Schlein, 8 F.3d 745 (11th Cir.1993) (holding Florida exemption statute for employee benefit plans was not preempted by ERISA due to savings clause); In re Vickers, 954 F.2d 1426 (8th Cir.1992) (holding Missouri statute that exempted pension plan benefits from bankruptcy estate was not preempted due to savings clause); In re Dyke, 943 F.2d 1435 (5th Cir.1991) (holding Texas exemption law was not preempted by ERISA due to savings clause).


finding that ERISA's savings clause did not save Arizona exemption statute from preemption

But cf. Pitrat v. Garlikov, 947 F.2d 419 (9th Cir.1991), withdrawn, 992 F.2d 224 (9th Cir.1993) (finding that ERISA’s savings clause did not save Arizona exemption statute from preemption).


holding Missouri statute that exempted pension plan benefits from bankruptcy estate was not preempted due to savings clause


holding Texas exemption law was not preempted by ERISA due to savings clause


Context: However, evidence that plaintiff operated the boat in water too high and at a speed too great causing him too lose control and be ejected will be permitted on the issue of proximate cause.

"absent a comparative negligence defense, a plaintiffs conduct is also relevant to establishing proximate cause."

See id., 128 N.J. at 98, 607 A.2d at 644 (determining that plaintiffs actions were relevant to the issue of proximate cause even though jury could not consider conduct as evidence of contributory negligence); see also Madden v. Cosco, 2010 WL 2867899, at *4 (N.J.Super.A.D. July 19, 2010) (“absent a comparative negligence defense, a plaintiffs conduct is also relevant to establishing proximate cause.”) (citing Johansen, 128 N.J. at 97-99, 607 A.2d at 644). Likewise, defendant will also be permitted to introduce evidence of plaintiffs actions after he was ejected from the boat before contact with the engine’s propeller.


Context: Appellant's conduct, as indicated by the Commonwealth's evidence, exhibited an extreme indifference to the value of human life and created a substantial danger of death or serious physical injury to Jonathan and Gabe. Appellant was not entitled to a directed verdict on these two charges.

See Port v. Commonwealth, 906 S.W.2d 327, 334 (Ky.1995) (holding that there was sufficient evidence of wanton endangerment where defendant pointed a gun and fired two shots while in a crowded restaurant, thereby creating dangerous atmosphere for other diners); Combs v. Commonwealth, 652 S.W.2d 859, 860-61 (Ky.1983) (holding that there was sufficient evidence of wanton endangerment where a bullet came within fifteen feet of a bystander); Hunt v. Commonwealth, 304 S.W.3d 15, 38 (Ky.2009) (“It is self-evident that bullets may ricochet.”).

Cf. Swan v. Commonwealth, 384 S.W.3d 77, 104 (Ky.2012) (holding that there was insufficient evidence of wanton endangerment where evidence established that the victim was in a back bedroom, behind a closed door, and hiding under a bed when three shots were fired in the front living room).


holding that there was sufficient evidence of wanton endangerment where a bullet came within fifteen feet of a bystander


Context: Further, the Court is mindful that the trial court failed to take appropriate action to minimize the prejudicial effect of the gang evidence on the jury, e.g., by clearly instructing the jury to limit their consideration of the gang affiliation testimony to a proper purpose, e.g., impeachment.

See Jobson, 102 F.3d at 222 (noting trial court’s error in failing to instruct the jury on proper purpose of gang evidence and finding that such error was not harmless); see also Takahashi, 205 F.3d at 1165 (district court did not abuse its discretion in admitting gang evidence where it took steps to minimize undue prejudice); Burks v. Borg, 27 F.3d 1424, 1431 (9th Cir.1994) (finding that gang evidence and argument was harmless error upon habeas review given trial court’s “prompt and effective action” in instructing the jury on the evidence).

noting trial court's error in failing to instruct the jury on proper purpose of gang evidence and finding that such error was not harmless


finding that gang evidence and argument was harmless error upon habeas review given trial court's "prompt and effective action" in instructing the jury on the evidence